Gentile regulations were customs having the force of law. The obligation not to marry in the gens was one of the number. It does not appear to have been turned, at a later day, into a legal enactment; but evidence that such was the rule of the gens appears in a number of ways. The Roman genealogies show that marriage was out of the gens, of which instances have been given. This, as we have seen, was the archaic rule for reasons of consanguinity. A woman by her marriage forfeited her agnatic rights, to which rule there was no exception. It was to prevent the transfer of property by marriage from one gens to another, from the gens of her birth to the gens of her husband. The exclusion of the children of a female from all rights of inheritance from a maternal uncle or maternal grandfather, which followed, was for the same reason. As the female was required to marry out of her gens her children would be of the gens of their father, and there could be no privity of inheritance between members of different gentes.
V. The possession of lands in common.
The ownership of lands in common was so general among barbarous tribes that the existence of the same tenure among the Latin tribes is no occasion for surprise. A portion of their lands seems to have been held in severalty by individuals from a very early period. No time can be assigned when this was not the case; but at first it was probably the possessory right to lands in actual occupation, so often before referred to, which was recognized as far back as the Lower Status of barbarism.
Among the rustic Latin tribes, lands were held in common by each tribe, other lands by the gentes, and still other by households.
Allotments of lands to individuals became common at Rome in the time of Romulus, and afterwards quite general. Varro and Dionysius both state that Romulus allotted two jugera (about two and a quarter acres) to each man.[308] Similar allotments are said to have been afterwards made by Numa and Servius Tullius. They were the beginnings of absolute ownership in severalty, and presuppose a settled life as well as a great advancement in intelligence. It was not only admeasured but granted by the government, which was very different from a possessory right in lands growing out of an individual act. The idea of absolute individual ownership of land was a growth through experience, the complete attainment of which belongs to the period of civilization. These lands, however, were taken from those held in common by the Roman people. Gentes, curiæ and tribes held certain lands in common after civilization had commenced, beyond those held by individuals in severalty.
Mommsen remarks that “the Roman territory was divided in the earliest times into a number of clan-districts, which were subsequently employed in the formation of the earliest rural wards (tribus rusticæ).... These names are not, like those of the districts added at a later period, derived from the localities, but are formed without exception from the names of the clans.”[309] Each gens held an independent district, and of necessity was localized upon it. This was a step in advance, although it was the prevailing practice not only in the rural districts, but also in Rome, for the gentes to localize in separate areas. Mommsen further observes: “As each household had its own portion of land, so the clan-household or village, had clan-lands belonging to it, which, as will afterwards be shown, were managed up to a comparatively late period after the analogy of house-lands, that is, on the system of joint possession.... These clanships, however, were from the beginning regarded not as independent societies, but as integral parts of a political community (civitas populi). This first presents itself as an aggregate of a number of clan-villages of the same stock, language and manners, bound to mutual observance of law and mutual legal redress and to united action in aggression and defense.”[310] Clan is here used by Mommsen, or his translator, in the place of gens, and elsewhere canton is used in the place of tribe, which are the more singular since the Latin language furnishes specific terms for these organizations which have become historical. Mommsen represents the Latin tribes anterior to the founding of Rome as holding lands by households, by gentes and by tribes; and he further shows the ascending series of social organizations in these tribes; a comparison of which with those of the Iroquois, discloses their close parallelism, namely, the gens, tribe and confederacy.[311] The phratry is not mentioned although it probably existed. The household referred to could scarcely have been a single family. It is not unlikely that it was composed of related families who occupied a joint-tenement house, and practiced communism in living in the household.
VI. Reciprocal obligations of help, defense and redress of injuries.
During the period of barbarism the dependence of the gentiles upon each other for the protection of personal rights would be constant; but after the establishment of political society, the gentilis, now a citizen, would turn to the law and to the state for the protection before administered by his gens. This feature of the ancient system would be one of the first to disappear under the new. Accordingly but slight references to these mutual obligations are found in the early authors. It does not follow, however, that the gentiles did not practice these duties to each other in the previous period; on the contrary, the inference that they did is a necessary one from the principles of the gentile organization. Remains of these special usages appear, under special circumstances, well down in the historical period. When Appius Claudius was cast into prison (about 432 B. C.), Caius Claudius, then at enmity with him, put on mourning, as well as the whole Claudian gens.[312] A calamity or disgrace falling upon one member of the body was felt and shared by all. During the second Punic war, Niebuhr remarks, “the gentiles united to ransom their fellows who were in captivity, and were forbidden to do it by the senate. This obligation is an essential characteristic of the gens.”[313] In the case of Camillus, against whom a tribune had lodged an accusation on account of the Veientian spoil, he summoned to his house before the day appointed for his trial his tribesmen and clients to ask their advice, and he received for an answer that they would collect whatever sum he was condemned to pay; but to clear him was impossible.[314] The active principle of gentilism is plainly illustrated in these cases. Niebuhr further remarks that the obligation to assist their indigent gentiles rested on the members of Roman gens.[315]
VII. The right to bear the gentile name.