The Roman gens is recognized to be the same institution as the Greek gens; and since the Greek gens is a further development of the social unit whose original form is found among the American Indians, this, of course, holds true of the Roman gens also. Here therefore we can be more brief. The Roman gens, at least in the earliest times of Rome, had the following constitution: Such were the rights of a Roman gens. Apart from the already completed transition to father-right, they are the perfect counterpart of the rights and duties in an Iroquois gens; here again the Iroquois shows through unmistakably (p. 90). The confusion that still exists today, even among our leading historians, on the subject of the Roman gens, may be illustrated by one example. In his paper on Roman family names in the period of the Republic and of Augustus (Romische Forschungen, Berlin, 1864, Vol. I, pp. 8-11) Mommsen writes: Mommsen therefore maintains that the Roman women who belonged to a gens had originally been permitted to marry only within the gens, that the gens had therefore been endogamous, not exogamous. This view, which is in contradiction to all the evidence from other peoples, rests chiefly, if not exclusively, on one much disputed passage from Livy (Book XXXIX, Ch. 19), according to which the senate in the year 568 after the foundation of the city, or 186 B.C., decreed: Uti Feceniae Hispallae datio, deminutio, gentis enuptio, tutoris optio item esset quasi ei vir testamento dedisset; utique ei ingenuo nubere liceret, neu quid ei qui eam duxisset ob id fraudi ignominiaeve esset that Fecenia Hispala shall have the right to dispose of her property, to decrease it, to marry outside the gens, and to choose for herself a guardian, exactly as if her (deceased) husband had conferred this right on her by testament; that she may marry a freeman, and that the man who takes her to wife shall not be considered to have committed a wrongful or shameful act thereby. Without a doubt, Fecenia, a freedwoman, is here granted the right to marry outside the gens. And equally without a doubt the husband possessed the right, according to this passage, to bequeath to his wife by will the right to marry outside the gens after his death. But outside which gens? If the woman had to marry within her gens, as Mommsen assumes, she remained within this gens also after her marriage. But in the first place the endogamous character of the gens which is here asserted is precisely what has to be proved. And, secondly, if the wife had to marry within the gens, then, of course, so had the man, for otherwise he could not get a wife. So we reach the position that the man could bequeath to his wife by will a right which he himself, and for himself, did not possess; we arrive at a legal absurdity. Mommsen also feels this, and hence makes the assumption: For a lawful marriage outside the gens, it was probably necessary to have the consent, not only of the chief, but of all members of the gens. That is a very bold assumption in the first place, and, secondly, it contradicts the clear wording of the passage. The senate grants her this right in the place of her husband; it grants her expressly neither more nor less than her husband could have granted her, but what it grants her is an absolute right, conditional upon no other restriction. Thus it is provided that if she makes use of this right, her new husband also shall not suffer any disability. The senate even directs the present and future consuls and praetors to see to it that no injurious consequences to her follow. Mommsen s assumption therefore seems to be completely inadmissible. Or assume that the woman married a man from another gens, but herself remained in the gens into which she had been born. Then, according to the above passage, the man would have had the right to allow his wife to marry outside her own gens. That is, he would have had the right to make dispositions in the affairs of a gens to which he did not even belong. The thing is so patently absurd that we need waste no more words on it. Hence there only remains the assumption that in her first marriage the woman married a man from another gens, and thereby immediately entered the gens of her husband, which Mommsen himself actually admits to have been the practice when the woman married outside her gens. Then everything at once becomes clear. Severed from her old gens by her marriage and accepted into the gentile group of her husband, the woman occupies a peculiar position in her new gens. She is, indeed, a member of the gens, but not related by blood. By the mere manner of her acceptance as a gentile member, she is entirely excluded from the prohibition against marrying within the gens, for she has just married into it; further, she is accepted as one of the married members of the gens, and on her husband s death inherits from his property, the property of a gentile member. What is more natural than that this property should remain within the gens and that she should therefore be obliged to marry a member of her husband s gens and nobody else? And if an exception is to be made, who is so competent to give her the necessary authorization as the man who has bequeathed her this property, her first husband? At the moment when he bequeaths to her a part of his property and at the same time allows her to transfer it into another gens through marriage or in consequence of marriage, this property still belongs to him and he is therefore literally disposing of his own property. As regards the woman herself and her relation to her husband's gens, it was he who brought her into the gens by a free act of will - the marriage; hence it also seems natural that he should be the proper person to authorize her to leave this gens by a second marriage. In a word, the matter appears simple and natural as soon as we abandon the extraordinary conception of the endogamous Roman gens and regard it, with Morgan, as originally exogamous. There still remains one last assumption which has also found adherents, and probably the most numerous. On this view, the passage only means that freed servants (libertae) could not without special permission e gente enubere (marry out of the gens) or perform any of the acts, which, involving loss of rights (capitis deminutio minima), would have resulted in the liberta leaving the gens. (Lange, R mische Altertumer, Berlin 1856, I, 195, where Huschke is cited in connection with our passage from Livy.) If this supposition is correct, the passage then proves nothing at all about the position of free Roman women, and there can be even less question of any obligation resting on them to marry within the gens. The expression enuptio gentis only occurs in this one passage and nowhere else in the whole of Latin literature; the word enubere, to marry outside, only occurs three times, also in Livy, and then not in reference to the gens. The fantastic notion that Roman women were only allowed to marry within their gens owes its existence solely to this one passage. But it cannot possibly be maintained. For either the passage refers to special restrictions for freedwomen, in which case it proves nothing about free women (ingenuae), or it applies also to free women; and then it proves, on the contrary, that the woman married as a rule outside her gens, but on her marriage entered into the gens of her husband; which contradicts Mommsen and supports Morgan. Almost three centuries after the foundation of Rome, the gentile groups were still so strong that a patrician gens, that of the Fabii, was able to undertake an independent campaign, with the permission of the senate, against the neighboring town of Veii; three hundred and six Fabii are said to have set out and to have been killed to a man, in an ambush; according to the story, only one boy who had remained behind survived to propagate the gens. As we have said, ten gentes formed a phratry, which among the Romans was called a curia and had more important public functions than the Greek phratry. Every curia had its own religious rites, shrines and priests; the latter, as a body, formed one of the Roman priestly colleges. Ten curiae formed a tribe, which probably, like the rest of the Latin tribes, originally had an elected president-military leader and high priest. The three tribes together formed the Roman people, the Populus Romanus. Thus no one could belong to the Roman people unless he was a member of a gens and through it of a curia and a tribe. The first constitution of the Roman people was as follows: Public affairs were managed in the first instance by the senate, which, as Niebuhr first rightly saw, was composed of the presidents of the three hundred gentes; it was because they were the elders of the gens that they were called fathers, patres, and their body, the senate (council of the elders, from senex, old). Here again the custom of electing always from the same family in the gens brought into being the first hereditary nobility; these families called themselves patricians, and claimed for themselves exclusive right of entry into the senate and tenure of all other offices. The acquiescence of the people in this claim, in course of time, and its transformation into an actual right, appear in legend as the story that Romulus conferred the patriciate and its privileges on the first senators and their descendants. The senate, like the Athenian boul , made final decisions in many matters and held preparatory discussions on those of greater importance, particularly new laws. With regard to these, the decision rested with the assembly of the people, called the comitia curiata (assembly of the curiae). The people assembled together, grouped in curiae, each curia probably grouped in gentes; each of the thirty curiae had one vote in the final decision. The assembly of the curiae accepted or rejected all laws, elected all higher officials, including the rex (so-called king), declared war (the senate, however, concluded peace), and, as supreme court, decided, on the appeal of the parties concerned, all cases involving death sentence on a Roman citizen. Lastly, besides the senate and the assembly of the people, there was the rex, who corresponded exactly to the Greek basileus and was not at all the almost absolute king which Mommsen made him out to be.  He also was military leader, high priest, and president of certain courts. He had no civil authority whatever, nor any power over the life, liberty, or property of citizens, except such as derived from his disciplinary powers as military leader or his executive powers as president of a court. The office of rex was not hereditary; on the contrary, he was first elected by the assembly of the curiae, probably on the nomination of his predecessor, and then at a second meeting solemnly installed in office. That he could also be deposed is shown by the fate of Tarquinius Superbus. Like the Greeks of the heroic age, the Romans in the age of the so-called kings lived in a military democracy founded on gentes, phratries, and tribes and developed out of them. Even if the curiae and tribes were to a certain extent artificial groups, they were formed after the genuine, primitive models of the society out of which they had arisen and by which they were still surrounded on all sides. Even if the primitive patrician nobility had already gained ground, even if the reges were endeavoring gradually to extend their power, it does not change the original, fundamental character of the constitution, and that alone matters. Meanwhile, Rome and the Roman territory, which had been enlarged by conquest, increased in population, partly through immigration, partly through the addition of inhabitants of the subjugated, chiefly Latin, districts. All these new citizens of the state (we leave aside the question of the clients) stood outside the old gentes, curiae, and tribes, and therefore formed no part of the populus Romanus, the real Roman people. They were personally free, could own property in land, and had to pay taxes and do military service. But they could not hold any office, nor take part in the assembly of the curiae, nor share in the allotment of conquered state lands. They formed the class that was excluded from all public rights, the plebs. Owing to their continually increasing numbers, their military training and their possession of arms, they became a powerful threat to the old populus, which now rigidly barred any addition to its own ranks from outside. Further, landed property seems to have been fairly equally divided between populus and plebs, while the commercial and industrial wealth, though not as yet much developed, was probably for the most part in the hands of the plebs. The great obscurity which envelops the completely legendary primitive history of Rome an obscurity considerably deepened by the rationalistically pragmatical interpretations and accounts given of the subject by later authors with legalistic minds makes it impossible to say anything definite about the time, course, or occasion of the revolution which made an end of the old gentile constitution. All that is certain is that its cause lay in the struggles between plebs and populus. The new constitution, which was attributed to the rex Servius Tullius and followed the Greek model, particularly that of Solon, created a new assembly of the people, in which populus and plebeians without distinction were included or excluded according to whether they performed military service or not. The whole male population liable to bear arms was divided on a property basis into six classes. The lower limit in each of the five classes was: (1) 100,000 asses; (2) 75,000 asses; (3) 50,000 asses; (4) 25,000 asses; (5) 11,000 asses; according to Dureau de la Malle, the equivalent to about 14,000; 10,500; 7,000; 3,600; and 1,570 marks respectively. The sixth class, the proletarians, consisted of those with less property than the lower class and those exempt from military service and taxes. In the new popular assembly of the centuries (comitia centuriata) the citizens appeared in military formation, arranged by companies in their centuries of a hundred men, each century having one vote. Now the first class put eighty centuries in the field, the second twenty-two, the third twenty, the fourth twenty-two, the fifth thirty, and the sixth also on century for the sake of appearances. In addition, there was the cavalry, drawn from the wealthiest men, with eighteen centuries; total, 193; ninety-seven votes were thus required for a clear majority. But the cavalry and the first class alone had together ninety-eight votes, an therefore the majority; if they were agreed, they did not ask the others; they made their decision, and it stood. This new assembly of the centuries now took over all political rights of the former assembly of the curiae, with the exception of a few nominal privileges. The curiae and the gentes of which they were composed were thus degraded, as in Athens, to mere private and religious associations and continued to vegetate as such for a long period while the assembly of the curiae soon became completely dormant. In order that the three old tribes of kinship should also be excluded from the state, four local tribes were instituted, each of which inhabited one quarter of the city and possessed a number of political rights. Thus in Rome also, even before the abolition of the so-called monarchy, the old order of society based on personal ties of blood was destroyed and in its place was set up a new and complete state constitution based on territorial division and difference of wealth. Here the public power consisted of the body of citizens liable to military service, in opposition not only to the slaves, but also to those excluded from service in the army and from possession of arms, the so-called proletarians. The banishment of the last rex, Tarquinius Superbus, who usurped real monarchic power, and the replacement of the office of rex by two military leaders (consuls) with equal powers (as among the Iroquois) was simply a further development of this new constitution. Within this new constitution, the whole history of the Roman Republic runs its course, with all the struggles between patricians and plebeians for admission to office and share in the state lands, and the final merging of the patrician nobility in the new class of the great land and money owners, who, gradually swallowing up all the land of the peasants ruined by military service, employed slave labor to cultivate the enormous estates thus formed, depopulated Italy and so threw open the door, not only to the emperors, but also to their successors, the German barbarians.
Origins of the Family - Chapter VI