[259] P. 37, n. 4.
[260] P. 31; Pol. Sci. Quart. xxii (1907). 679 ff.
[261] The idea that the primitive community is essentially illiberal with its membership is erroneous. For the mingling of conquerors and conquered, see p. 42 f. and notes. On the ethnic heterogeneity of states in general, see Gumplowicz, Rassenkampf, 181. The laws of Solon granted citizenship to alien residents who were in perpetual exile from their own country, or who had settled with their families in Attica with a view to plying their trade; Plut. Sol. 24. Under his laws, too, a valid marriage could be contracted between an Athenian and an alien; Hdt. vi. 130. The Athenians, like the Romans, believed that many of their noble families were of foreign origin. In Ireland “strangers settling in the district, conducting themselves well, and intermarrying with the clan, were after a few generations indistinguishable from it;” Ginnell, Brehon Laws, 103. Nearly the same rule holds for South Wales; Seebohm, Tribal System in Wales, 131. To the Germans before their settlement within the empire the idea of an exclusive community must have been foreign; for as yet the individual was but loosely attached to his tribe. Persons of many tribes were united in the comitatus of a chief; the two halves of a tribe often fought on opposite sides in war; a tribe often chose its chief from another tribe. Intermarriage among the tribes was common, even between Germans and Sarmatians. A single tribe often split into several independent tribes, and conversely new tribes were formed of the most diverse elements; Seeck, Geschichte des Untergangs der antiken Welt, i. 209 with notes; Kaufmann, Die Germanen der Urzeit, 136 f. Under these circumstances the primitive German community cannot be described as exclusive. In like manner our sources unanimously testify to the liberality of early Rome in granting the citizenship to strangers. It is no longer possible to oppose to this authority the objection that such generosity does not accord with primitive conditions.
[262] Gaius i. 120 f.
[263] Mommsen’s theory of gentile ownership, adopted by Kubitschek, in Pauly-Wissowa, Real-Encycl. i. 790, depends upon his view that the gens was as old as the state; in his opinion it was originally stronger but gradually weakened, whereas the state went through the opposite process; Röm Staatsr. iii. 25. But if, as I have elsewhere pointed out (Pol. Sci. Quart. xxii. 685 ff.), the gens developed from the family during the decline of the kingship and the rise of aristocracy, the theory of a primitive gentile ownership falls to the ground.
[264] We are not to think of the state as granting a certain district to the tribe, which then parcelled it among the component curiae, etc., for this reason that the tribes and the curiae did not themselves possess common lands. Rather the state divided a given district among the families which were already included, or which it wished to include, in a given curia or tribe. In this way the later tribes were formed in historical time, and in this way the Claudian tribe was originally constituted; Livy ii. 16. 4 f.; cf. Plut. Popl. 21. When therefore Dionysius, ii. 7. 4, states that Romulus divided the land into thirty lots and assigned a lot to each of the thirty curiae, he means, if he correctly understands the matter, that land was assigned not to the curia as a whole but to the families which composed the curia, unless indeed the curiae once had a right of landholding not possessed in historical time.
[265] Christ, W., in Sitzb. d. Berl. Akad. d. Wiss. 1906. 207.
[266] In the Twelve Tables heredium has the meaning of hortus, “garden;” Pliny, N. H. xix. 4. 50. It was a praedium parvulum consisting of two iugera; Fest. ep. 99.
[267] In the earliest colonies this was the amount assigned to each man; cf. Livy iv. 47. 6 (Labici); vi. 16. 6 (Satricum); viii. 21. 11 (Tarracina, founded 329). The first two are not so distinctly historical as the third; Mommsen, Röm. Staatsr. iii. 24, n. 1. Supposing Rome to have been a colony, the historians infer that Romulus made a similar distribution among its earliest settlers; cf. Varro, R. R. i. 10. 2; Pliny, N. H. xviii. 2. 7; Fest. ep. 53; Juvenal xiv. 163 f.; Siculus Flaccus 153; Livy vi. 36. 11; Plut. Popl. 21; Columella v. 1. 9; Nissen, Ital. Landesk. ii. 507.
[268] Cf. Mommsen, Röm. Staatsr. iii. 23 f.