It will be noticed that in each of the above cases, to which a large number might be added, the persons married out of the gens. Such was undoubtedly the general usage by customary law.

The Roman gens was individualized by the following rights, privileges and obligations:

I.Mutual rights of succession to the property of deceased gentiles.
II.The possession of a common burial place.
III.Common religious rites; sacra gentilicia.
IV.The obligation not to marry in the gens.
V.The possession of lands in common.
VI.Reciprocal obligations of help, defense, and redress of injuries.
VII.The right to bear the gentile name.
VIII.The right to adopt strangers into the gens.
IX.The right to elect and depose its chiefs; query.

These several characteristics will be considered in the order named.

I. Mutual rights of succession to the property of deceased gentiles.

When the law of the Twelve Tables was promulgated (451 B. C.), the ancient rule, which presumptively distributed the inheritance among the gentiles, had been superseded by more advanced regulations. The estate of an intestate now passed, first, to his sui heredes, that is, to his children; and, in default of children, to his lineal descendants through males.[292] The living children took equally, and the children of deceased sons took the share of their father equally. It will be noticed that the inheritance remained in the gens; the children of the female descendants of the intestate, who belonged to other gentes, being excluded. Second, if there were no sui heredes, by the same law, the inheritance then passed to the agnates.[293] The agnatic kindred comprised all those persons who could trace their descent through males from the same common ancestor with the intestate. In virtue of such a descent they all bore the same gentile name, females as well as males, and were nearer in degree to the decedent than the remaining gentiles. The agnates nearest in degree had the preference; first, the brothers and unmarried sisters; second, the paternal uncles and unmarried aunts of the intestate, and so on until the agnatic relatives were exhausted. Third, if there were no agnates of the intestate, the same law called the gentiles to the inheritance.[294] This seems at first sight remarkable; because the children of the intestate’s sisters were excluded from the inheritance, and the preference given to gentile kinsmen so remote that their relationship to the intestate could not be traced at all, and only existed in virtue of an ancient lineage preserved by a common gentile name. The reason, however, is apparent; the children of the sisters of the intestate belonged to another gens, and the gentile right predominated over greater nearness of consanguinity, because the principle which retained the property in the gens was fundamental. It is a plain inference from the law of the Twelve Tables that inheritance began in the inverse order, and that the three classes of heirs represent the three successive rules of inheritance; namely: first, the gentiles; second, the agnates, among whom were the children of the decedent after descent was changed to the male line; and third, the children, to the exclusion of the remaining agnates.

A female, by her marriage, suffered what was technically called a loss of franchise or capital diminution (deminutio capitis), by which she forfeited her agnatic rights. Here again the reason is apparent. If after her marriage she could inherit as an agnate it would transfer the property inherited from her own gens to that of her husband. An unmarried sister could inherit, but a married sister could not.

With our knowledge of the archaic principles of the gens, we are enabled to glance backward to the time when descent in the Latin gens was in the female line, when property was inconsiderable, and distributed among the gentiles; not necessarily within the life-time of the Latin gens, for its existence reached back of the period of their occupation of Italy. That the Roman gens had passed from the archaic into its historical form is partially indicated by the reversion of property in certain cases to the gentiles.[295]

“The right of succeeding to the property of members who died without kin and intestate,” Niebuhr remarks, “was that which lasted the longest; so long indeed, as to engage the attention of the jurists, and even—though assuredly not as anything more than a historical question—that of Gaius, the manuscript of whom is unfortunately illegible in this part.”[296]

II. A common burial place.