Scanned text contains errors.
with the definition of the Pontifex ; for persons might be of the same genus, and might have sustained a capitis diminutio either by adoption or adrogation, or by emancipation: in all these cases the genus would remain, for the natural relationship was not affected by any change in the juristical condition of a person : in the cases of adoption and adrogation the name would be lost: in the case of emancipation it would be retained. If the definition of Festus means that among those of the same genus there may be gentiles; and among-those of the same name, gentiles may also be included, his definition is true; but neither part ef the definition is absolutely true, nor, if both parts are taken together, is the whole definition absolutely true. It seems as if the definition of gentiles was a matter of some difficulty ; for while the possession of a common name was the simplest general characteristic of gentilitas, there were other conditions which were equally essential.
When a man died intestate and without agnati, his familia [familia] by the 'law of the Twelve Tables came to the genti'les ; and -in the case of a lunatic (furiosus) who had no guardians, the guardianship of the lunatic and his property belonged to the agnati and to the gentiles ; to the latter, we may presume, in case the former did not exist.
Accordingly, one part of the jus gentilitimn or jus gentilitatis related to successions to the property of intestates, who had no agnati. A notable example of a dispute on this subject between the Claudii and Marcelli is mentioned in a difficult passage of Cicero (de Orat. i. 39). The Marcelli claimed the inheritance of an intestate son of one of the liberti or freedmen of their familia (stirpe); the Claudii claimed the same by the gentile rights (gente). The Marcelli were plebeians and belonged to the patrician Claudia gens. Niebuhr observes that this claim of the Claudii is inconsistent with Cicero's definition, according to which no descendant of a freedman could be a gentilis ; and he concludes that Cicero (that is Scaevola) must have been mistaken in this part of his definition. But it must be observed though the descendants of freedmen might have no claim as gentiles, the members of a geias might as such have claims against them ; tiwd in this sense the descendants of freedmen might be gentiles. It would seem as if the Marcelli united to defend their supposed patronal rights to the inheritance of the sons of freedmen against the claims of the gens ; for the law of the Twelve ^Tables gave the inheritance of a freedman only, who died intestate arid without heirs, to his patron, and not the inheritance of the son of a freedman. The question might be this: whether the law, in the case supposed, gave the hereditas to the gens as having a right paramount to the patronal right. It may be that the Marcelli, as being included in theClaudia gens, were supposed to have merged their patronal rights (if they really existed in the case in dispute) in those of the gens. Whether as members of the gens, the plebeian Marcelli would take a? gentiles what they lost as patroni, may be doubted.
the hereditas, at one period at least, must have been a benefit to the members of the gens: Caesar is said (Sueton. Jul. 1) to have been deprived of his gentilitiae hereditates.
In determining that the property of intestates should ultimately belong to the gens, the law of the Twelve Tables was only providing for a case which in every civilized country is provided for by some positive law ; that is, the law finds some rule as to the disposition of the property of a person who dies with out having disposed of it or leaving those whom the law recognizes as immediately entitled to it in ease there is no disposition. The gens had thus a relation to the gentiles, similar to that which subsists in modern states between the sovereign power and persons dying intestate and without heirs or next of kin. The mode in which such a succession was applied by the gens was probably not determined by law; and as the gens was a kind of juristical person, analogous to the community of a civitas, it seems not unlikely that originally inheritances accrued to the gens as such, and were common property. The gens must have had some (Common property, such as sacella, &c. It would be no difficult transition to imagine, that what ©riginally belonged to the gens as such, was in the course of time distributed -among the members, "which would easily take place when the familiae included in a gens were reduced t© a small number.
There were certain sacred rites (sacra gentilitia) which belonged to a gens, to the observance of which all the members of a gens, as such, were bound, whethsr they were members by birth, adoption, or adrogation. A person was freed from the observance of such sacra, and lost the privileges connected with his gentile rights, when he lost his gens, that is, when he was adrogated, adopted, or even emancipated ; for adrogation, adoption, and emancipation were accompanied by a diminutio capitis.
When the adoption was from one familia into; another of the same gens, the name of the gens was still retained ; and when a son was emancipated, the name of the gens was still retained ; and yet in both these cases, if we adopt the definition of Scaevola, the adopte.d and emancipated persons lost the gentile rights, though they were also freed from the gentile burdens (sacra). In the case of adoption and adrogation, the adopted and adrogated person who passed into a familia of another-gens, must have passed into the gens of such familia, and so must have acquired the rights of that gens. Such a person had sustained a capitis diminutio, and its effect was to destroy his former gentile rights, together with the rights of agnation. The gentile rights were in fact implied in the rights of agnation, if the pater-familias had a gens. Consequently he who obtained by adrogation or adoption the rights of agnation,, obtained also the gentile rights of his adopted father. In the case of adrogation, the adrogated person renounced his gens at the Comitia Curiata, which solemnity might also be expressed by the term " sacra detestari," for sacra and gens are often synonymous. Thus, in such case, adrogatio, on the part of the adoptive father, corresponded to detestatio sacrorum on the part of the adrogated son. This detestatio sacrorum is probably the same thing as the sacrorum alienatio mentioned by Cicero (Orator^ c. 42). It was the duty, of the pontifices to look after the due observation of the gentile sacra, and to see that