CHAPTER VI. GENS AND STATE IN ROME.
The legend of the foundation of Rome sets forth that the first colonization was undertaken by a number of Latin gentes (one hundred, so the legend says) united into one tribe. A Sabellian tribe (also said to consist of one hundred gentes) soon followed, and finally a third tribe of various elements, but again numbering one hundred gentes, joined them. The whole tale reveals at the first glance that little more than the gens was borrowed from reality, and that the gens itself was in certain cases only an offshoot of an old mother gens still existing at home. The tribes bear the mark of artificial composition on their foreheads; still they were made up of kindred elements and after the model of the old spontaneous, not artificial tribe. At the same time it is not impossible that a genuine old tribe formed the nucleus of every one of these three tribes. The connecting link, the phratry, contained ten gentes and was called curia. Hence there were thirty curiae.
The Roman gens is recognized as an institution identical with the Grecian gens. The Grecian gens being a continuation of the same social unit, the primordial form of which we found among the American Indians, the same holds naturally good of the Roman gens, and we can be more concise in its treatment.
At least during the most ancient times of the city, the Roman gens had the following constitution:
1. Mutual right of inheritance for gentiles; the wealth remained in the gens. Paternal law being already in force in the Roman the same as in the Grecian gens, the offspring of female lineage were excluded. According to the law of the twelve tablets, the oldest written law of Rome known to us, the natural children had the first title to the estate; in case no natural children existed, the agnati (kin of male lineage) took their place; and last in line came the gentiles. In all cases the property remained in the gens. Here we observe the gradual introduction of new legal provisions, caused by increased wealth and monogamy, into the gentile practice. The originally equal right of inheritance of the gentiles was first limited in practice to the agnati, no doubt at a very remote date, and afterwards to the natural children and their offspring of male lineage. Of course this appears in the reverse order on the twelve tablets.
2. Possession of a common burial ground. The patrician gens Claudia, on immigrating into Rome from Regilli, was assigned to a separate lot of land and received its own burial ground in the city. As late as the time of Augustus, the head of Varus, who had been killed in the Teutoburger Wald, was brought to Rome and interred in the gentilitius tumulus; hence his gens (Quinctilia) still had its own tomb.
3. Common religious rites. These are well-known under the name of sacra gentilitia.
4. Obligation not to intermarry in the gens. It seems that this was never a written law in Rome, but the custom remained. Among the innumerable names of Roman couples preserved for us there is not a single case, where husband and wife had the same gentile name. The law of inheritance proves the same rule. By marrying, a woman loses her agnatic privileges, discards her gens, and neither she nor her children have any title to her father's estate nor to that of his brothers, because otherwise the gens of her father would lose his property. This rule has a meaning only then when the woman is not permitted to marry a gentile.
