In its first form, Rome consisted of a city on the Palatine, surrounded by a wall and ditch, with a suburb, and of a Sabine town on the Quirinal and on the Tarpeian Hill. From the union of both, Rome arose; and from the union of both bodies of citizens, the Roman citizenship. All modern states, with the single exception of the canton of Schwytz, have their governments and subdivisions according to their territory. Every city is divided into districts and wards, and on these, in representative governments, the representation is based: he who has his abode in a district is both an elector, and may also be elected in it. But the view which the ancients took was this, that the land was only the substratum of the state; that the state itself was formed of individuals; and that the relations of these to the whole community were modified in different ways by the corporations. Hence the state was divided into a certain number of associations, each of which again consisted of several families. These associations had among themselves their assemblies, their rights of inheritance, &c. their tribunals, and especially their sanctuaries. Whoever belonged to them, bequeathed these to his children; and wherever he might live, within or without the state, he was always deemed to belong to that association. Whoever, on the contrary, did not belong to it by right of birth, could only come in as an exception, if that association acknowledged him. A man might be received into the state with all the rights which the ancients confined to the citizen as such, he might acquire landed property, he might sue and be sued; and yet, unless he had a share in some association, he was only an inmate, and could not be invested with an office, nor could he vote. This view was generally entertained by all the most ancient states. The state could merely bestow upon an individual the right of abode and civil privileges: it could not command the association to receive any one. In many states, the associations had not even the right of admitting any body. This is the case with the castes which always remain exclusive, and which, being separate, allow of no intermarriage. Such an association, comprehending a number of families from which one may go out, but into which one either cannot enter at all, or only by the adoption of the whole association, is a clan, and by no means what we call family, which implies an origin from a common root; for when these clans have patronymics, they are always merely symbolical, and derived from heroes.[66] I assume it as a certain fact that among the Romans the division of the nation was into gentes, which were analogous to the γένη of the Greeks, and to the Geschlechter of our German forefathers. This is a presupposition to start from, for which, when the time comes, historical proofs will not be wanting. Let us first speak of that people concerning which the accounts are more distinct,—the Greeks. Their γένη are associations which, notwithstanding their common name, are not to be looked upon as families sprung from the same ancestors; but as the descendants of those persons, who at the foundation of the state were united in a corporation of this kind. This is expressly stated in Pollux, undoubtedly from Aristotle, wherein it is asserted that the Gennetæ were called from the γένη; and that they were connected not by descent (γένει μὲν οὐ προσήκοντες) but by ἱερά which they had in common. Then we have also the evidence of Harpocration concerning the Homerides in Chios; he says that they were a genos in that island, but that according to the opinion of the well-informed they had no relationship whatever with Homer. These γένη are just like the Arabian tribes, the Beni Tai are ten thousand families who cannot all descend from Edid Tai; or like the clans of the Highlanders, who were named after individuals; yet it was only in a poetical sense that they spoke of themselves as the kinsmen and descendants of these. In the Highlands there were five thousand Campbells able to bear arms, who looked upon the Duke of Argyle as their cousin.

Concerning the Roman gentes we have no positive evidence, like that of Pollux and Harpocration (such perhaps as Verrius Flaccus would have given), that they were corporations without relationship; but we have an important definition of Cicero’s in the Topica. He there gives the word gentiles as a difficult subject for definition; and such it was, because in fact time in its course had wrought a thorough change in the original institution. The gentes in Cicero’s days had lost much of their former consequence, and their constitution had been affected by law decisions. He says, Gentiles sunt, qui inter se, eodem nomine sunt. Non satis est. Qui ab ingenuis oriundi sunt. Ne id quidem satis est. Quorum majorum nemo servitutem servivit. Abest etiam nunc. Qui capite non sunt deminuti. Hoc fortasse satis est. According to this, the Scipios and Sulla were gentiles; for they are eodem nomine, &c. Suppose that one of the Cornelii had been addictus as liable to a debt, or condemned to death for a crime, then he was capite deminutus, and ousted from his tribe, exactly what the English in feudal language call “corruption of blood.” And should he now as an addictus beget children, these also were outcasts, and did not belong to the gens. By the added clause quorum majorum nemo servitutem servivit, all the Libertini and their descendants were excluded, although bearing the gentile name of their patrons; yet all the Peregrini were left, whom one might admit if one chose. But this in all likelihood is an addition which was unknown to the old gentile law. For, in my opinion, there was in the earlier times no difference whatever with regard to the Libertini: they belonged to the gens as well as the patrons. Yet this was a moot point, as is shown by the remarkable lawsuit between the patrician and plebeian Claudii (the Marcelli), for the inheritance of a Libertinus in Cicero de Oratore. On that occasion a res judicata was pronounced by the centuries, that the patrician Claudii could not inherit in a case of this kind; from which the conclusion was afterwards drawn that the Libertini did not belong to the gens.

In the whole of this definition, there is not a word about a descent from a common stock, closely connected as the idea would seem with it. Hence it clearly follows that the gentes in Rome were of the same nature as the Greek γένη. Genus and gens are moreover quite the same word, a thing which often happens with words of the old language, e. g. cliens and clientus,[67] Campans[68] and Campanus, and likewise Romans and Romanus: the genitives Romanum and Romanom come from that old contracted nominative.

The very institution of the gens essentially implies a division of the state by its fundamental laws into a certain number of such associations, which then constituted small states by themselves, and enjoyed special privileges of which the extent was very great: jus gentium, and jura gentium, originally had perhaps a somewhat different, a much wider meaning than we generally believe. The numbers of the gentes are always found in such a proportion to the state as never could have been the result of chance. In Attica there were 360 γένη, a number which the grammarians very correctly refer to the division of the year, or of the compass. This is also the case in Germany; in Cologne there were three orders, each of fifteen houses (Geschlechter); in Florence there were three times four and twenty houses; in Dittmarsch three times ten. Now in Rome there were probably three times one hundred gentes, i. e. three tribes of a hundred clans each; wherefore Livy gives them the name of centuria, and not tribus. There usually existed between the division into tribes and that into clans an intermediate one comprising the latter, as the φράτραι: in Greece, the curies at Rome, which corresponded to the orders in Cologne, and to the classes in the Lombard towns. These Curies are parts of a Tribus, and a combination of several gentes (probably consisting always of ten) for common sacrifice. And just as every gens had its own gentilician sanctuaries,—for sacra familiarum, which sometimes we find mentioned in modern writers, were unknown to the Romans,—so likewise as member of a Cury, each individual had some special duties besides of worship, and a vote in the popular assemblies. The ancients did not vote by poll, but by corporations: from the earliest times therefore it continued to be the established usage at Athens that recruiting and voting should be carried on by φυλαί (Tribus). Four Phylæ might be outvoted by six; although, if polled, the latter were very inferior in numbers. In Rome they went still farther: they did not vote by Tribes but by Curies. The reason for it is easy to be seen: for, since at first the Ramnes and the Tities were ruling alone, difficulties might have arisen from allowing only these two to vote. It might easily have happened that one tribe would be for, and the other against; and this would have led to collisions. But if each Tribe was again divided into Curies, and voted accordingly, it was then perhaps more likely that some one Cury gave the casting vote. Before the admission of the third estate this would necessarily happen. Afterwards we find that the turn of the Curies and the prærogativa were decided by lot, a thing which cannot be presumed to have been done before; for by this means the Luceres might have got the initiative as well as the two others. But here we have an instance of the innumerable stages by which the Roman constitution developed itself; and it is precisely this gradual development which has given such a long duration to Roman freedom. For the true secret of a great statesman, who is quite as seldom found as any other great genius, is indeed the gradual perfection and reform of the several points of an existing constitution, and not the sudden setting up of a finished work.

Thus therefore the Curies came into the place of the tribes. During the reign of Tarquinius, the third estate was admitted to the full citizenship: these are the gentes minores. The gentes are such an essential element of the constitution, that, as gentes civium patriciæ is the formal expression for patricii, thus also gentes civium majores and minores is said. It is stated that the senate had consisted of two hundred, and that Tarquinius had raised it to three hundred by the admission of the gentes minores. This can only mean that he gave the third tribe the full citizenship, and received a number of them, which corresponded to that of their gentes, into the senate; and this is the usual course of things. In Cologne also, the second and third order were admitted to offices later than the first. It is a great change in the constitution, and one which completes it for the first populus. The third estate at the beginning was not quite on the same footing with the rest: their senate was not consulted until the other two had already voted, and in the same way their Curies were certainly only allowed to vote when the others had already given theirs. With regard to the priestly offices, they were only admitted to the college of the Vestals. Where we find duumviri, these are but the representatives of the two first tribes: it is in later times only that we find triumviri, and when these are patrician, they represent the three tribes. But they are likewise often plebeian, and then based upon the plebeian constitution to be treated of hereafter.

One of the widest spread peculiarities of former times, is the difference made between the old homebred citizens and those who have come from without. This difference has been almost every where done away with by the notions of the eighteenth century. In North America there is hardly any homebred population: with the exception of the eligibility for the presidentship, it matters not in the least how long one has lived in the country; there is no difference between him who is come from the first colonists, and the man who has just landed. Among the ancients, the admission to the rights of citizenship was every where difficult: the alien needed not to be of a foreign tongue, he might belong to the same nation as the citizen, and even to the same tribe of the nation. The lines of demarcation are drawn in the most varied manner. In the oldest constitution of which we have any authentic knowledge, that of the Jews, we already find such a distinction. The people consists of tribes with unequal rights, just as the tribes of the Romans; besides these, are the persons who had been received into the congregation of the Lord. With regard to the latter, the Pentateuch expressly makes this distinction, that some nations might be received, and others not. These aliens form a mass closely connected with the Jewish people, but out of the tribes. In after times, when the Jewish constitution is better known to us from books of more recent date, the population is divided into Jews and Proselytes; and the latter again into two classes,—the Proselytes of Righteousness, and the Proselytes of the Gate.[69] The former had political and civil rights, yet they were excluded from civic honours; they could buy land, make wills, marry Jewish women, &c. &c. The Proselytes of the Gate had to accommodate themselves to the Jewish customs; they could not do any thing which was against the ceremonial law for fear of giving offence; but they did not participate in civil rights with the inhabitants of the country.

The same system presents itself, only less distinctly, in all the Greek constitutions,—a fact about which so much nonsense has been talked. Among the Greeks there existed from the very earliest times, besides the sovereign body of the citizens, a community of native freemen, who had civil rights, but by no means in every instance the privilege of intermarriage with the ruling tribe; they might sue and be sued, yet they had no share in the government. It was otherwise with the aliens or the freedmen, who were bereft of all the personal rights of citizens, and only protected against violence by taking a citizen for their patron. This twofold distinction, that one might be born in a country and exercise civil rights to a certain extent; and that those who were aliens had no civil rights whatever, was a very general notion.

The body of the Roman citizens was now enlarged. At its first origin it was an aristocracy, only so far as the subjected people of the neighbourhood and the freedmen stood in the position of vassals to the citizens; beyond this, no aristocratical relation whatever existed. But when Sabine and Latin communities were so incorporated with Rome that they got full civil rights, and had to serve, that class was formed which in our German towns we call Pfahlbürger (burghers of the pale), an expression which no one has rightly and clearly understood. The derivation of this word is from Pahl, or Pfahl, (pale); in Ireland, the counties round Dublin were said to be “within the English pale.” This name was also given in Germany to the district in the immediate vicinity of a town. The freemen who lived in it had, properly speaking, no rights of citizenship, as these were limited to the Geschlechter (the Houses), but merely civil rights. The signification of the word in the course of time was more and more widened, it being also applied to those aliens who had acquired the right of community with a country (Landrecht), or a town (Burgrecht), the isopolity of the Greeks. The investigation of this subject, which is perfectly analogous to the origin of the Roman plebes, has to me been fraught with such considerable difficulties, because in the sixteenth century these relations had vanished, and we therefore nowhere find any thing more about them. In the fifteenth century this expression is still found, but hardly in the sixteenth. Johannes Von Müller did not understand it, and has used it without any proper meaning. Now, when a province, or a town, or a baron established such a right of community (Landrecht or Burgrecht) with a town, the consequences of it were twofold. In the first place, both parties protected each other in their feuds; and moreover, the strangers might settle with their vassals in the town, where they had the full civil rights of freemen, and also their own courts of law: yet they were not of the sovereign people, as they had no share in the government; and in this respect the Houses, as having the sovereignty, stood on quite a different footing. Many of the communities beyond the Tiber, Sabine and Latin, entered into relations of this kind with the Romans, and it was chiefly on the Aventine that they settled. The account given by the Roman historians is, that Ancus had led them from their homes, and had made them take up their abode there; but there are circumstances which make this impossible. For, since all the land near Rome was occupied, they could not have got any there, and must therefore have had their dwellings some miles away from their fields. It is very possible that some of the most distinguished were obliged to settle in Rome. This citizenship “of the pale” now became more and more enlarged. The great body of the people did not as yet form a corporation, though they contained all the elements of one: they increased in the city and the environs at such a rate, especially owing to the union with Latium in the reign of Servius Tullius, that they far outnumbered the old population, and formed the chief strength of Rome, and were employed to a great extent in the wars. And the more they grew, the more did the Tribes, which only intermarried among themselves, die off.

Thus arose the Roman Plebes,—the Greek δῆμος, in German Gemeinde. The demos comprehended all those who had the inferior citizenship, and who therefore owed service to the state, but had no rights but that of personal freedom. Thus the δῆμος stands in contraposition to the πολῖται, the plebes to the populus, the Gemeinde to the Bürgerschaft, the commune to the cittadine.[70] I also think that πόλις was not originally the term for city (which was called ἄστυ), but just like populus, a Tyrrhenian word; and that both of these bear the same meaning which we have stated above, Populus having been formed by reduplication from πόλις. The commonalty is in all states the main part as far as numbers are concerned; yet the way in which it developed itself was different in the ancient world from what it was in the middle ages. In the middle ages, the commonalty resided within the walls: it often settled, as for instance in Geneva, round the cité, the heart of the town, in the bourg, borgo, the suburbs; and its members were therefore called bourgeois. These suburbs were then likewise fortified, and in the course of time gained equal rights with the cities. In Germany the same thing happened, the name only being different, for Bürger and Geschlechter have the same meaning; and there the cities sprang up, particularly after the tenth century, when the age had become more settled. And in Gaul, where a civitas and a royal villa still existed from the times of the Romans, a place often grew up near the villa, which remained under the protection of the king, and under the management of the mayors of the Palace. This is the original meaning of the word ville, as opposed to cité. There is therefore a distinction in French towns between la cité, la ville, and le bourg. Wherever the commonalty was growing up within the walls, it was formed of quite different elements. In the Germanic states, aliens were better treated on the whole than they were in the ancient world, or even in France. The Beisassen of the small Swiss cantons, as for instance of Uri, are, properly speaking, nothing else but subjugated communities; the inhabitants of St. Gervais were subjects of Geneva. In France, by the droit d’aubaine, the liege lord was heir to the aliens who were not naturalized; for they were not allowed to make a will. In all those medieval towns where trade and commerce were paramount, the commonalty soon divided itself into guilds, which got their own heads and wardens, their own privileges and style, as well as property; as to capital jurisdiction, it could only be granted by the kings, and wherever it was exercised, they had a share in it. The wardens of the companies at first appear in the council to take care that their rights were not infringed upon; but they soon took their seats as members, and ended by getting the ascendency. This is clearly seen in the Italian cities, e. g. in the case of the seven old guilds at Florence. During the feuds of the Guelphs and the Ghibellines, the clans or houses had still the upperhand; but soon afterwards, about the time of Rudolf of Habsburg, the guilds are every where the ruling power,—in Italy in the thirteenth century, and in Germany about the middle of the fourteenth; at Zurich as well as at Augsburgh, at Strasburg, Ulm, Heilbronn, and the Suabian imperial cities. The transition is made by the houses (Geschlechter) sharing the government with the guilds: wherever this is conceded, the union is effected peacefully; but where it is refused, it is only after a sanguinary struggle, which generally ends in the destruction of the houses. But sometimes also the reverse takes place, as at Nuremberg, where the guilds were crushed.

This union of the clans and of the community, or the guilds, is called in Greece πολιτεία; in Italian popolo, the meaning of which is somewhat different from that of the Roman populus.[71] The partition was so fully carried out, that at Florence, for example at the palazzo vecchio, and on books also, the coat of arms of the city, a fleur de luce, and that of the commonalty (il commune), a cross, gules, field argent, are seen side by side. The expression il commune easily gives rise to misconceptions; it does not mean the union, but the commonalty, as Savigny has pointed out to me. At Bologna there is a palatium civium, and a palatium communis. The Capitano del popolo and the Capitano di parte at Florence are also difficult to be understood. In the struggle of the Guelphs and Ghibellines, the Capitano di parte, that is, of the party of the Guelphs, having driven the Ghibellines out of the city, was placed at the head of affairs, and the others had their rights of citizenship suspended. The single Capitano of the houses was nevertheless called di parte. But among the ancients it was not the guilds within the walls which formed the commonalty; but the population of the country round the city, which consisted of quite different elements, comprehending people of the highest as well as of the lowest ranks. The notion, therefore, is altogether a wrong one, that the Plebes was made up of the poorer classes only. It was occasioned already by the language employed in Plato and Aristotle, as they had only the word δῆμος to designate city-corporation, commonalty, the union of both,—in short, all that did not belong to the ruling class, and moreover the common people. Dionysius knew the word δῆμος only as contradistinguished to βουλὴ, ὄχλος being the proper term for the mass of poor. Yet he also is not free from that mistake, but carried it into Roman history; and as he went much more fully into detail with regard to these relations than Livy did, he led the restorers of ancient history into quite erroneous notions. Livy likewise did not see the matter in a clear light; yet he has many passages from which it is manifest, that the annalists whom he followed were correct in their views. A further cause of this confusion is, however, to be found in the pecuniary embarrassments and debts which are stated to have prevailed among the Plebes; but which, as we shall see hereafter, are only to be understood of the mortgages which encumbered the landowners in many communities. The Plebes is the counterpart of the Populus, as the Romans in general divide all the primary agencies in nature and in the world of intellect into two; one part being male, and the other female: as for instance, Vulcanus and Vesta are the element of fire; Janus and Jana the heavenly lights, the sun and moon; the generating power of the earth, Saturnus and Ops; the earth as solid ground, Tellumo and Tellus; and thus also the entire state, Populus and Plebes, both of which together formed its whole.