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GENS.

they were not lost. {Pro Domo, c. 13, &c.) Each gens seems to have had its peculiar place (sacelluni) for the celebration of the sacra gentilitia, which were performed at stated times. The sacra genti­litia, as already observed, were a burden on the members of a gens as such. The sacra privata were a charge on the property of an individual; the two kinds of sacra were thus quite distinct.

According to Dionysius (Antiq. Rom. ii. 7), the curiae were respectively subdivided into Decades ; and Niebuhr argues that Decades and Gentes were the same. Accordingly each of the three tribes contained ten curiae and 100 gentes ; and the three tribes contained 300 gentes. Now if there is any truth in the tradition of this original dis­tribution of the population into tribes, curiae and gentes, it follows that there was no necessary kin­ship among those families which belonged to a gens, any more than among those families which belonged to one curia. '

We know nothing historically of the organisa­tion of civil society, but we know that many new political bodies have been organised out of the materials of existing political bodies. It is useless to conjecture what was the original organisation of the Roman state. We must take the tradition as it has come down to us. The tradition is not, that familiae related by blood were formed into gentes, that these gentes were formed into curiae, that these curiae were formed into tribes. Such a tradition would contain its own refutation, for it involves the notion of the construction of a body politic by the aggregation of families into unities, and by further combinations of these new unities. The tra­dition is of three fundamental parts (in whatever manner formed), and of the divisions of them into smaller parts. The smallest political division is gens. No further division is made, and thus of necessity, . when we come to consider the component parts of gens, we come to consider the individuals com­prised in it or the heads of families. According to the fundamental principles of Roman law, the in­dividuals arrange themselves into familiae under their respective patres-familiae. It follows, that if the distribution of the people was effected by a division of the larger into smaller parts, there could oe no necessary kin among the familiae of a gens ; for kinship among all the members of a gens could only be effected by selecting kindred familiae, and forming them into a gens. If the gens was the result of subdivision, the kinship of the original members of such gens, whenever it existed, must have been accidental.

There is no proof that the Romans considered that there was kinship among the familiae origin­ally included in a gens. Yet as kinship was evi­dence of the rights of agnatio, and consequently of gentile rights, when there had been no capitis diminutio, it is easy to see how that which was evidence of the rights of agnatio, and consequently of gentile rights, might be viewed as pare of the definition of gentilis, and be so extended as to comprehend a supposed kinship among the original members of the gens. The word gens itself would also favour such a supposition, especially as the word genus seems to be often used in the same sense. (Cic. pro Balbo, c. 14.) This notion of kinship appears also to be confirmed by the fact of the members of the gens being distinguished by a common name, as Cornelia, Julia, &c. But many circumstances, besides that of a common origin,

GENS.

may have given a common name to the gentiles ; and indeed there seems nothing more strange in all the gentiles having a common name, than there being a common name for all the members of a curia and a tribe.

As the gentes were subdivisions of the three ancient tribes, the populus (in the ancient sense) alone had gentes, so that to be a patrician and to have a gens were synonymous ; and thus we find the expressions gens and patricii constantly united. Yet it appears, as in the case already cited, that some gentes contained plebeian familiae, which it is conjectured had their origin in marriages be­tween patricians and plebeians before there was connubium between them. When the lex was carried which established connubium between the plebs and the patres, it was alleged that this measure would confound the gentile rights (jura gentium, Liv. iv. 1). Before this connubium ex­isted, if a gentilis married a woman not a gentilis, it followed that the children could not be gentiles ; yet they might retain the gentile name, and thus, in a sense, the family might be gentiles without the gentile privileges. Such marriages would in effect introduce confusion ; and it does not appear how this would be increased by giving to a marriage between a gentile man, and a woman not gentilis, the legal character of connubium ; the effect of the legal change was to give the children the gentilitas of their father. It is sometimes said that the effect of this lex was to give the gentile rights to the plebs, which is an absurdity ; for, according to the expression of Livy (iv. 4), which is conformable to a strict principle of Roman law, " patrem sequuntur liberi," and the children of a plebeian man could only be plebeian. Before the passing of this lex, it may be inferred that if a patrician woman married out of her gens (e gente, e patribus enupsit) it was no marriage at all, and that the children of such marriage were not in the power of their father, and, it seems a necessary consequence, not Roman citizens. The effect would be the same, according to the strict principles of Roman law, if a plebeian married a patrician woman, before there was connubium be­tween them ; for if there was no connubium, there was no legal marriage, and the offspring were not citizens, which is the thing complained of by Canuleius. (Liv. iv. 4.) It does not appear then how such marriages will account for plebeian fami­liae being contained in patrician gentes, unless we suppose that when the children of a gentile man and a plebeian woman took the name of the father, and followed the condition of the mother, they were in some way or other, not easy to explain, considered as citizens and plebeians. But if this be so, what would be the status of the children of a patrician woman by a plebeian man ?

Niebuhr assumes that the members of the gens (gentiles) were bound to assist their indigent fellows in bearing extraordinary burdens ; but this assertion is founded on the interpretation given to the words robs 7«/ez Trpocr^Kovras of Dionysius (ii. 10), which have a simpler and more obvious meaning. Whatever probability there may be in the assumption of Niebuhr, as founded on the passage above cited, and one or two other pas­sages, it cannot be considered as a thing demon­strated.

A hundred new members were added to the senate by the first Tarquin. These were the re*

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