GENS
GENS The word
gens, connected
etymologically with
geno and
gigno, signifies primarily an aggregate of individuals
forming a political union and sprung from a common source. It is thus
applied either to the whole or to part of a community, in either case with
special reference to common descent. Nationality is defined by Cicero
(
de Off. 1.17, 53) as consisting in community
[p. 1.907]of
gens, natio,
lingua; and in this sense of common origin, the most marked
characteristic of a distinct nationality, it is constantly applied to whole
peoples, as in the expressions
gens Numidarum, gens
Aegyptiorum, and in the juristic formula of
jus gentium. The word may, however, denote a narrower form of
common descent than that implied in nationality. Wider than the union of the
family, and narrower than the bonds of the state or tribe, the gens at Rome
was a social union which had, as its theoretical basis, the notion of
descent from a common ancestor. The juristic theory of the gens may be
expressed by saying that all the individuals constituting it would, if their
descent could be traced far enough upwards, have ultimately come within the
patria potestas of this one common
ancestor; and would, accordingly, have borne a common name ( “gentilis
dicitur ex eodem genere ortus et is qui simili nomine
appellatur,” Festus, s. v.
gentilis, p.
94). The first of these elements, common descent, was of necessity a
doubtful tie. In most cases it would have been impossible to trace ; and
accordingly it is the second element, community of name, which, through
being taken as a test of the former, was the distinctive and only certain
mark of the right to participation in a gens. Those individuals who could
through this token lay claim to share in a common gens were called
gentiles: their relation towards one another and to
the gens as a whole was called
gentilitas. The
very essence of the distinction between the relation of
gentilitas and the relation of
agnatio is to be sought in the fact that, when the common descent
could be traced through all its stages, and the common
patria potestas in which it ended fixed, there the
individuals connected by this bond were
agnati:
when the common descent was only an imaginary fact based on the possession
of a common name, the individuals so connected were called
gentiles. Yet the latter name necessarily includes
the former, only differing from it in being wider and less specific. A
theory which draws a sharp distinction between the two must deny to the word
gens the idea of common descent, which
really lies at the basis of the conception; and is expressed, not only
etymologically by the term itself, but by the outward tokens of the common
sacra, and common right of inheritance, for
which mere community of name, unaccompanied by the idea of descent, could
have furnished no justification. The subsequent narrowing of these terms
gentilis and
gentilitas through the expansion of the gens not having been
accompanied by a corresponding expansion of all the rights implied in it, is
connected with the relation of the patrician and plebeian elements to one
another in the Roman state. Originally, however, the expression
“gentiles mihi sunt qui meo nomine appellantur” (Cincius,
ap. Fest.
l.c.) must have been capable of being
uttered by everyone who was deemed a member of a gens, and formed indeed his
only obvious claim to this position. This is equivalent to saying that the
Roman gentes were all originally patrician. For the unit of the gens was the
house (
familia); and the most important members
of the gens, those alone who would be capable of exercising such rights in
private law as the gens possessed in its collective capacity, would be the
patres or full heads of households.
Assuming the truth of the most probable account of the origin of the Roman
patriciate,--namely, that it represented those who were originally the sole
full members of the Roman state, and who alone possessed the status of
patres (whence
patricii, Mommsen,
Staatsr. 3.13),--it follows
that the Roman gentes were, as represented by tradition, originally
exclusively patrician, and that the terms
gentilis and
gentilitas connoted a
perfect equality of status among the members of the several
familiae forming the gens. The restricted meaning
which these words came to have in the Roman civil law originated with the
evolution of the later plebeian rights. To the original gentes of Rome,
those formed by the association of
patres
properly so called, there had from the first been attached a heterogeneous
mass of half-free residents in Rome. An element in the state, but yet not in
the strict sense a part of the state, these plebeians lived in a state of
protected freedom, and in a partial dependence on the full citizens who
alone constituted the gens. In this body two main elements may be
distinguished: foreigners who had come to Rome on the
jus
exsulandi; emancipated slaves and their descendants [PLEBS]. Amongst this body there was clearly the
same capacity for distinction as that which in the patrician aggregate
formed the ground of division into gentes. There were groups of individuals
who bore a common name and owned a common descent; and the common name and
common descent would become more marked as years went on. Their original
unity might only have been the unity of dependence on a common patrician
house, but, as plebeian rights as such came to be recognised in
contradistinction to patrician, the unity of name and blood in the former
would be as distinct as its unity in the latter; and the original dependents
on the patrician gens would form a
stirps of
their own. In the case of the patrician gens on which they were dependent
wholly dying out, the plebeians who bore this name would be the sole
representatives of the gens. But sometimes, as in the case of the Claudii,
the patrician gens might stand side by side with the plebeian
stirps, and it is in these circumstances that the
question as to the applicability of the terms
gentilis and
gentilitas originated.
That a patrician Claudius would have been a gentilis, not only to the
members of his own order, but to the plebeian Claudii who bore his name, is
clear. The question is, whether the reverse was true, whether a plebeian
Claudius Marcellus could claim to be a gentilis. The answer is probably in
the affirmative, so far as concerned the plebeians as a whole. That certain
members of the plebeian order were excluded from
gentilitas appears in the definition of this term by
Scaevola, as quoted by Cicero (
Top. 6, 29). The requirements
of a gentilis are there stated as being, firstly, community of name;
secondly, the condition of being the son of an
ingenuus, which, as it is distinguished from the condition next
mentioned, has here probably the signification merely of being born of one
who is in a state of freedom, according to the definition in the Institutes
(i. tit. 4, “Ingenuus qui statim ut nascitur liber est” ), and
not what was probably its original meaning, full membership of
[p. 1.908]the gens based on the fact that one's remote
ancestors had never been in a state of slavery (Ortolan, 1.17). This is
fully stated in the third condition given by Cicero, “quorum majorum
nemo servitutem servivit ;” and lastly we have the requirement
that no
capitis deminutio should have been
suffered by the person claiming to be a gentilis. It is clear that the third
condition which required the ultimate ancestors of a gentilis to have been
freemen would have excluded many of the plebeian houses, which had sprung
originally from emancipated slaves. But this would not prevent many of the
plebeians that had no trace of servile blood in their veins from being
gentiles of all who bore their common name. We find that gentile
inheritances were shared by the plebeian Minucii (
Cic. in Verr. 1.45, 115), and gentile sepulchres
shared by the plebeian Popilii (
de Leg. 2.22, 55); and though
it is true that from the patrician point of view, as shown by the words of
Decius Mus ( “semper ista audita sunt eadem, vos soli gentem
habetis” ), there would have been no such thing as a plebeian gens,
but only
a stirps, which was an offshoot of the
original patrician house, still connected with it by the tie of dependence;
and though the presumption, in the case of the co-existence of plebeian and
patrician gentes of the same name, was ap. parently that the former had once
been clients of the latter, as in the case of the Claudii and Claudii
Marcelli (
Cic. de Orat. 1.39, 176;
PLEBS), yet these are not sufficient proofs of the denial of gentilitas to
plebeians as a whole: the less so as the only professedly exact definition
of gentilis which has come down to us does not contain a sufficient number
of restrictive conditions to exclude all the plebeian elements in the state.
Any attempt to understand the nature of the Roman gens and the theory on
which it rested can only be made by comparing it with the other subdivisions
of the Roman people. As has been stated above, the gens rested in theory on
a natural basis. It represents the widest limits of blood-relationship
possible. The gens, then, is intimately connected with those other units,
the
familia and
agnati, that rest on the basis of kinship. Its distinction from
these is the distinction between wider and narrower groups, not between
included and excluded elements respectively; the fact being that, as Ortolan
states it, the members of a gens might stand to one another in the relation
of
agnati, gentiles, and
cognati, while they possessed a common genealogy, whether
natural or civil, peculiarly their own (Ortolan, iii. tit. 2.1032). The
attempt to construct the gens, as Niebuhr did, by an exclusion of these
family groups, ends necessarily in making the gens an important political
factor in the Roman community, and tracing its origin to the requirements
not of private but of public life. “The numerical scale of the
gentes,” says Niebuhr (
Hist. Rome, i. p. 319),
“is an irrefragable proof that the Roman gentes were not more
ancient than the constitution, but corporations formed by a legislator
in harmony with the rest of his scheme;” and he further held (ib.
p. 333) that the gens voted as one in the Comitia Curiata, basing his
conclusion on a doubtful expression of Laelius Felix (ap. Gell. xv 27), who
says, “Cum ex generibus hominum suffragium feratur, curiata, comitia
esse,”
genus being taken as an equivalent, as it not
unfrequently is, to
gens. To maintain that the
gens was a political union without blood-relationship or connexion through
the
patria potestas (Niebuhr,
Hist.
Rome, i. p. 314) is to bring it into closer relation with the
curia and the.
tribus than with the family: to make it a definitely artificial
and not a quasinatural association, and to give it a political importance
which there is little evidence to, show that it ever possessed. The small
amount. of corporate action possessed by the gens, and. the utter absence of
representative power characterising it, which will be touched on
subsequently, lead us to suspect that it never could have been an important
political factor in the state. Its rights are those of private not of public
law, and there are but two exceptions to, this general principle, one an
apparent exception, that rests on traditional accounts,--namely, the
political distinction with which the traditional history presents us,
between the
gentes majores and the
gentes minores; the other a real exception, that
rests on modern conjecture, and which is contained in the theory that at one
time the gentes were represented in the senate, or at least made the basis
for its formation. The distinction between
gentes
majores and
gentes minores is one
that existed within the original patrician gentes. It is said to have
originated,. in the reign of Tarquinius Priscus, with the reception of fresh
members into the body of the. patrician senate (
Cic. de Repub. 2.20, 36;
Liv.
1.35,
6), the members now received
being called the
patres majorum gentium as
opposed to the
patres minorum gentium or
original members ; and it is further stated that there was a difference of
rank observed within the senate between the older and later members, the
former-having precedence in debate (Cic.
de Repub. l.c.
“majorum gentium quos priores sententiam rogabant” ). If we
accept this account as historically true, it furnishes no real evidence that
the senate was ever organised on the basis of the gentes, or that a
difference in grade in the gentes caused a difference in grade in the senate
The more probable conclusion is, that the senate had in the earlier regal
period been composed of
patres chosen from the
original full members of the Roman state, from the first gentes therefore
that formed this body; that, after the arrival and settlement of fresh
gentes, a conservatism was still observed, the patres who entered the
senate, no doubt on the nomination of the king, being chosen from this body;
that at a later period, which tradition puts in the reign of Tarquin, the
advisability was felt of a more unfettered choice of patres; and that
consequently these were chosen from the newer gentes. The titles
majores,
minores applied to these gentes may simply
denote their comparative antiquity; but it is possible that the titles may
have arisen, as Cicero suggests in the passage of the
de
Republica, from the respective positions their members had
within the senatorial body. The patres now chosen would have a less favoured
position as compared with the older patres, and this position would reflect
on the position of the gentes to which they belonged; so that, so far from a
difference of political position in the gentes giving rise to a difference
of position in
[p. 1.909]the senate, the case would be
precisely the reverse; and the gentes would only accidentally possess this
reflected political character. The memory of this distinction had not died
out down to a late period of the Republic, and probably lasted as long as
the patrician gentes themselves. We are told by Cicero that the patrician
Papirii belonged to the
minores gentes
(
ad Fam. 9.21, 2), the only name we know as belonging to
this category. The names of the
gentes majores
are not mentioned, but Mommsen conjectures that they may be those who
furnished
principes senatus, such as the
Aemilii, Claudii, Cornelii, Fabii, Manlii, and Valerii
(
Staatsr. 3.31;
Forsch. 1.259).
The theory that the gentes originally formed the basis of representation in
the Roman senate originates mainly with the consideration of the close
correspondence of numbers between the gentes and the senate. The full
numbers of both. are given by tradition as 300; while the symmetrical
divisions of the gentes into the 30 curiae, 10 to each, and of the curiae
into the three original tribes of the state, seem, if we accept it, to point
to a definitely political organisation. This is further supported by the
theory that the Roman. state was a gradual amalgamation of three domains
(
tribus) into one; and the rise of the
senate from 100, its original number as constituted by Romulus, to 300 as
its final number, is accounted for by the gradual amalgamation of these
three tribes with their 100 gentes each, the
gentes
minores being some-times identified with the gentes of the
last-admitted of these tribes, that of the Luceres (Ortolan, 1.33); while a
parallel to the original centumviral constitution of the senate before the
συνοικισμὸς is found in the
centumviri of the Italian municipia, supposed to be
derived from the same invariable division of a
tribus, or community, into 100 gentes (Mommsen,
Hist.
Rome, i. p. 73). The connexion of the gentes with senatorial
representation is therefore not without some theoretical support, although
it is never distinctly stated by ancient writers, and it crosses, though it
does not absolutely conflict with, the more probable account that the
senators were nominated by the king. The chief objections are to be found in
the political character it gives to the gens, a character it did not bear in
historical times, and also in the symmetrical principle of division such a
system implies, a principle which conflicts with the nature of the origin of
the gens, which is based not on an artificial but on a natural unity. The
political division of the
curia is not into
gentes, according to the best tradition, but into
decuriae, which is more probably the meaning of the
δεκάδες of Dionysius (
2.7) than gentes; and that there was ever a
fixed and normal number for the gentes of Rome, which must from their
natural character have fluctuated considerably, is improbable (Mommsen,
Staatsr. 3.12). Yet that there may have been some
original connexion between the gentes and the senate, not definitely
political but accidental, such as that traced in the case of the gentes
majores and minores, it is quite possible to imagine.
That the gentes had not, or, if they had, could not have retained, the fixed
numbers which the above-mentioned political distribution attributes to them,
is shown by the fact that it was possible for new gentes to be added to the
community, and even for old gentes to quit it. Thus the reception by the
original Roman community of at least six gentes that had once belonged to
the parent state of Alba--the Cloelii, Curiatii, Geganii, Julii, Quinctilii
(or Quinctii), and Servilii--is mentioned by our authorities (
Liv. 1.30;
Dionys. A.
R. 3.29); and not only were Latin races so received, but Sabine
races as well, such as the Valerii (
Dionys. A.
R. 2.46). These new gentes are spoken of as being
cooptatae in patres (
Liv.
4.4, “nobilitatem vestram per cooptationem in patres habetis;”
Suet. Tib. 1, “gens Claudia in patricios
cooptata” ). This expression probably means nothing more than
that their position in the state was conferred on them by a vote of the
Comitia Curiata, all the constituents of which were originally
patres, and therefore the only
gentiles; so that the alternative expressions of Livy of
cooptatio in patres and
jussu populi to describe a reception of this kind, may be
taken as denoting the same act. This is not, however, to assign any
corporate action to the gens as such. Their corporate action in this case
only rests on the original exclusive participation of their members in the
comitia populi; and such an act would
require, as every popular act did, the co-operation of the Roman
magistrate,--that is, in early times of the king. We do, indeed, get
references to the reception of gentes, to the reception of individuals into
gentes, and even to the transference of gentes from the plebeian to the
patrician order by the act of the curiae or the king alone, as in the case
of Servius and Numa, who are said to have been transferred by the populus
from the ranks of the
δῆμος to those of the
πατρίκιοι (
Dionys. A. R. 4.13), and in that of a whole gens, the Octavii
being raised by Servius Tullius to the patrician order (
Suet. Aug. 2). But in all these cases, if they
are not merely hypothetical, we must probably understand a joint working of
the magistrate and the people. The only mode by which the king or magistrate
could have in any way raised the position of a plebeian gens would have been
to choose some of its members for the senate, as the first consuls are said
to have done (
Dionys. A. R. 5.13), but
even this would not have rendered them patrician. They would have been
patres in the sense of senators, had the
word attained that meaning at this early time, but not
patres in the sense of heads of house-holds. That the
plebeian community at Rome could at this period have been called
gentes at all is improbable; the gens is a union
of
familiae, and therefore a union of
patres; the refusal of the title
patres to this class, the origin of the distinction between
patricii and
plebeii, excludes the idea of their union into gentes. To speak
of the
plcbeia gens of the Octavii becoming a
patricia gens is therefore an anachronism;
but this does not exclude the possibility of a division of the plebeian
community being “coopted” into the gentes by the original
Comitia Curiata on the proposal of a magistrate. The reception of fresh
gentes ceased, in the course of the Republic, because there was no political
assembly composed exclusively of members who fulfilled all the conditions of
being gentiles. When we get the conferring of the patriciate again revived,
as it was by the dictator Caesar, the power to confer it was received from a
vote of the populus;
[p. 1.910]although it afterwards became
one of the privileges of the Roman
princeps
(Mommsen,
Staatsr. 4.1046). As a gens might be received into
the Roman community, so a
gens might quit it.
The only instance of the expulsion of a gens is that of the Tarquinii, and
the decree that this whole gens had forfeited its right to be a member of
the Roman state was passed by the populus (
Liv.
2.2, “Brutus ad populum tulit ut omnes Tarquiniae gentis
exsules essent;” Varro, ap. Nonium, p. 222 M., “omnes
Tarquinios ejicerent, ne quam reditionis per gentilitatem spem
haberent” ).
The account we have of whole gentes being received into Rome is accompanied
by the account that the members of a gens originally kept together in their
settlement at Rome. Thus, in the case of the migratory gens of the Claudii,
we are told that, on the reception of the
civitas, they received as well a special tract of territory
across the Anio for the settlement of themselves and their clients (
Liv. 2.16;
Suet. Tib.
1), to be divided up into allotments for the various
familiae constituting the gens (
Dionys. A. R. 5.40). This at once suggests
an original connexion between the gens and the soil; the fact, that is, that
the unity of the gens was one not merely natural (
γενική), but also local (
τοπική). On this fact, which there is no reason to doubt, and on
the traces supplied by juristic tradition of the earliest modes of
possession at Rome, a theory has been constructed that the gens originally
held a common ownership of the soil. Mommsen points out that the earliest
names for Roman territorial possessions are
heredium,
ager publicus, and
ager privatus.
The
heredium was the personal property of the
citizen as such, consisting only of two jugera, an amount clearly
insufficient for the support of a family; the permittance of private
possession of this limited allotment is attributed to Romulus (Varro,
R. R. 1.10, 2;
Plin. Nat.
18.7), and seems a modification of some kind of original common
possession. The
ager publicus is the property
of the populus Romanus, and the
ager privatus,
if it exclude the
heredium, can only have been
the property of some division of the populus, in all probability of its
natural division, the gens. Again, that the terms which denote individual
possession (
manus, mancipium) referred
originally only to movable property and not to fixed property in land is
certain (Mommsen,
Staatsr. iii. p. 23), and point to a time
when some aggregate wider than the family was the owner of the soil. It is
tempting to consider this aggregate to have been originally the gens, the
only natural unit wider than the family, especially in view of the later
rights of inheritance possessed by the gentiles. There is little in the
traditional history, however, to bear out the hypothesis. The only one of
the larger divisions of the state to which fixed land assignments are said
to have been made, was, according to Dionysius (
2.7), the curia (
φράτρα), not
the gens; and in the accounts of the early distribution of conquered land,
the assignation is represented as being made to individuals (
viritim,
Cic. de Repub. 2.14, 16), not
to a larger aggregate. If we hold that the gens was once the common
possessor of the
ager privatus at Rome, the
mode of possession can only be a matter of the purest conjecture; whether
the system was one of vicarious enjoyment of land allotments, or of a
life-tenure in such allotments, or even of heritable but inalienable
allotments, the alternatives presented by Mommsen (
l.c. p. 26), it is impossible to determine.<
But, uncertain as the theory of this original common possessing is, there
were certain reversionary rights of inheritance possessed by the gentiles
which may be a relic of such a system. In the case of failure of a
suus heres, a man's property passed to his
agnati, and on the failure of
agnati to the
gentiles. This
order of succession is found laid down in the laws of the Twelve Tables,
“Si agnatus nec escit gentiles familiam habento,” and would
have applied from the first to the patricians who were the only original
gentiles. it is in this connexion that the importance of the definition of
gentilitas asserts itself; and since, as
has been shown, a considerable portion of the plebeians would have been
gentiles, they would have enjoyed, equally with the patricians, this right
of inheritance (see above: cf.
Cic. in
Verr. 1.45, 115). We find this right of the gentiles to
inherit in the last resort lasting down to the end of the Republic (
Suet. Jul. 1); but it was extinct in the time of
Gaius (
Inst. 3.17), in the second century A.D. ot must have
been an inheritance by individuals, not, as may once have been the case, by
a corporation; and the property must have been divided amongst the members
who proved their claims to be gentiles. But the gentiles had rights in their
collective capacity as well. The guardianship of the insane was in their
hands as laid down by the laws of the Twelve Tables, “Si furiosus
escit, ast ei custos ne escit, adgnatum gentiliumque in eo pecuniaque
ejus potestas esto.” The same reversionary rights of guardianship
over women and children belonged to the gentiles (Cic.
pro Domo, 13, 15;
C. I. L. 6.1527; and Mommsen
on this Inscription,
Staatsr. 3.28, n. 1). Such a
tutela must have given the gentiles all the rights
of a person in roman law, and it is difficult to see how it could have been
exercised except through some personal representative of the gens. In this
respect, however, the gens is regarded as capable of corporate action--a
capacity of which there are few manifestations in its history. One of these
is contained in the accounts we have of the gens as a whole repudiating the
use of a
praenomen, on which dishonour had been
cast by the actions of one of its possessors. Thus we read of the patrician
claudii repudiating by common agreement (
consensu) the praenomen of Lucius, because two of its bearers had
been convicted of theft and murder respectively (
Suet. Tib. 1), and again of the patrician Manlii renouncing by
common decision (
decreto) the praenomen of
Marcus (
Cic. Phil. 1.13.32). Such an act
must have been purely a matter of agreement, and must have depended on the
mere will of the members to observe it, since there could have been no legal
sanction to render it binding. The circle of the gens was drawn closer by
the common worship and sacrifices that belonged to special gentes as such.
Their maintenance was regarded as a fact of extreme importance: not so much
perhaps out of regard for the welfare of particular gentes, as from the fact
that if the special
sacra of a race died out,
the community would lose the favour of the divinity to which
[p. 1.911]they belonged. It is this fact which explains the
close connexion of gentile
sacra with property
and inheritances (Maine,
Ancient Law, pp. 6 and 27). Property
in the last resort went to the gentiles; the sacra, that they might be
maintained, were a necessary burden associated with it. That the sacra might
pass out of the family was of little importance; had they passed out of the
gens, there was no security for their continuance, and hence the
difficulties that beset the marriage of a woman outside the gens (
gentis enuptio), as shown in the case related by
Livy (
39.19,
5), of
Fecenia Hispalla, who was permitted, as a reward for her disclosure of the
Bacchanalian conspiracy, to have control of her property and marry without
the gens. For by the old Roman law of marriage the property of a woman
passed wholly under the power of her husband; and with this dissociation of
property from the gens there was a danger of a corresponding dissociation,
and consequent noncontinuance of the sacra. The same feeling is shown in the
marriage of the patrician Verginia with a plebeian, in which case she was
allowed to have no further share in the sacra of her family (
Liv. 10.23); and one of the forms observed in
cases of change of gens, such as that by
adrogatio, was the
sacrorum
detestatio, or public declaration that the individual seeking this
change ceased to claim any participation in the sacra of his race (Mommsen,
Staatsr. iii. p. 39); while, in cases of adoption
requiring a similar change of gens, it was the duty of the pontifices to
inquire how the continuity of the sacred rites might be maintained (Cic.
pro Domo, 13, 35;
de Leg. 2,
22).
How peculiar rites became attached to particular gentes it is not easy to
determine. In some cases they may have gone back to the ante-Roman
traditions of the gens, as may have been the case with the peculiar
sacrifices of the Claudii (Festus, s. v.
propudi, p.
238), who are said to have entered the Roman community at a comparatively
late period. But we are told that in many cases these
sacra were in the nature of acquired cults imposed by the
community on family groups (Cincius, ap. Arnob. 3.38, “solere Romanos
religiones urbium superatarum partim privatim per familias spargere,
partim publice consecrare” ); and, if this were so, many of these
gentile cults would not have had a natural growth, and “would have had
as slender a connexion with the gens as the exercise of his office had
with the person of the magistrate” (Mommsen,
Staatsr. iii. p. 19). The worship of Apollo by the Julia gens
is probably an instance of such an acquired cult. Connected, as has been
seen, with the question of the
sacra
gentilicia is the question of the changing of
his gens by an individual. Membership of a gens is either natural, as that
by birth, or artificial; and all the artificial modes of membership, such as
adoption, adrogation or marriage, are necessarily also modes of exchanging
one gens for another. As regards birth, in the time of the exclusively
patrician gentes, and before the extension of the
jus
conubii to the plebs (
Liv. 4.1),
marriage with a patrician mother, and by the ceremony of
confarreatio, was necessary to constitute gentilitas for the
child. This form of religious marriage also necessitated a change of gens on
the part of the wife. Dionysius (
2.5）
tells us that a woman married by the
confarreatio (
κατὰ τοὺς ἱέρους
νόμους became a sharer in the property and sacra of her husband
(
ἀνδρὶ κοινωνὸν ἁπάντων χρημάτων τε καὶ
ἱερῶν), and there is some slight trace of her originally
changing her gentile name as well (Plut.
Qu. Rom. 30). A
similar change of gens, accompanied by a change of citizenship, must have
befallen the woman who married by
confarreatio
a member of another community which had the
jus
conubii with Rome. The religious was soon replaced by the secular
marriage, requiring mere consensus on the part of the contracting parties;
and where the
confarreatio was still necessary,
as in the case of wives of religious officers, such as the Flamen Dialis, we
sometimes find the assumption by a wife of her husband's gentilitas in a
modified form. She was in her husband's power (
in
potestate viri) only
sacrorum
causa (
Tac. Ann. 4.16). The
ordinary marriage by consensus did not lead to a woman's being in the
potestas of her husband, except this was assumed by prescriptive right or by
coemptio. In this case she became a member
of the family; but that the logical conclusion was pressed, and that she
became a member of the gens, is doubtful, and we must conclude with Mommsen
that the anomaly resulted “of a Cornelia being in the power of an
Aemilius, a patrician in that of a plebeian, even a Praenestine woman in
that of a Roman burgess” (
Staatsr. iii. p. 36).
The artificial assumption of new family ties through adoption and adrogation
might necessitate a change in the gens. Adoption by will which replaced that
through fictitious sale, and adrogation, or the definite renouncing of old
family ties by a man who is
sui juris for the
purpose of seeking others, were performed, first through the action of the
pontifices, to consider the question of the continuity of the
sacra, next through the action of the curies, for
the purpose of declaring the change of family or gens, and the fact that the
rights of the old ones were renounced before those of the new one were
assumed (Servius
in Aen. 2.156,
“consuetudo apud antiquos fuit, ut qui in familiam vel gentem
transiret prius se abdicaret ab ea in qua fuerat et sic ab alia
acciperetur” ). A new gens in these cases is acquired through a
new familia. In the case of the recall of the dictator Camillus, if, with
Mommsen, we take the proceedings in the Comitia Curiata mentioned by Livy
(
5.46) to refer, not to his appointment as
dictator, but to his re-investment with his personal rights, this would be
an instance of the attainment of a gens, without the intermediate attainment
of a fresh familia (Mommsen,
Staatsr. 3.41; ADOPTIO; ADROGATIO).
[Mommsen,
Römisches Staatsrecht, iii. i. pp. 15-42;
Becker,
Handb. der Römischen Alterthümer,
Th. ii., Abth. 1; Lange,
Römische
Alterthümer, Bd. i., Abschn. ii. (
Das
Gentilrecht); Niebuhr,
Hist. of Rome, i. pp. 306 ff.
Ortolan's view of the relation of
gentilitas to
agnatio, differing from that taken in this
article, will be found in his
History of Roman Law (transl.),
p. 588, and in the third volume of that work comprising the commentary on
the Institutes of Justinian, tit. 2.1.]
[
A.H.G]
