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p567 Gens

Article by Leonhard Schmitz, Ph.D., F.R.S.E., Rector of the High School of Edinburgh
on pp567‑570 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

GENS. This word contains the same element as the Latin genus, and gigno, and as the Greek γένος, γίγνομαι, &c., and it primarily signifies kin. But the word has numerous significations, which have either a very remote connection with this its primary notion, or perhaps none at all.

Gens sometimes signifies a whole political community, as Gens Latinorum, Gens Campanorum, &c. (Juv. Sat. VIII.239, and Heinrich's note); though it is probable that in this application of the term, the notion of a distinction of race or stock is implied, or at least the notion of a totality of persons distinguished from other totalities by sameness of language, community of law, and increase of their numbers among themselves only. Cicero (pro Balbo, c13) speaks of "Gentes universae in civitatem receptae, ut Sabinorum, Volscorum, Hernicorum." It is a consequence of such meaning of Gens, rather than an independent meaning, that the word is sometimes used to express a people simply with reference to their territorial limits.

The meaning of the word in the express Jus Gentium is explained under Jus.

The words Gens and Gentiles have a special meaning in the system of the Roman law and in the Roman constitution. Cicero (Top. 6) has preserved a definition of Gentiles which was given by Scaevola, the pontifex, and which, with reference to the time, must be considered complete. Those were Gentiles, according to Scaevola, (1) who bore the same name, (2) who were born of freemen (ingenui), (3) none of whose ancestors had been a slave, and (4) who had suffered no capitis diminutio. This definition contains nothing which shows a common bond of union among gentiles, such the possession of a common name; but those who had a common name were not gentiles, if the three other conditions, contained in this definition, were not applicable to them. There is also a definition of gentilis by Festus:— "That is called Gens Aelia which is composed (conficitur) of many familiae. Gentilis is both one who is of the same stock (genus), and one who is called by the same name (simili nomine),1 as Cincius says, those are my gentiles who are called by my name."

We cannot conclude any thing more from the conficitur of Festus than that a Gens contained several familiae, or that several familiae were comprehended under one Gens. According to the definition, persons of the same genus (kin) were gentiles, and also persons of the same name were gentiles. If Festus meant to say that all persons of the same genus and all persons of the same name were gentiles, his statement is inconsistent p568with 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 meant 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 of 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.

The name of the gens was generally characterised by the termination eia or ia, as Julia, Cornelia, Valeria.

When a man died intestate and without agnati, his familia [Familia] by the law of the Twelve Tables came to the gentiles; 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 gentilitium 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 the 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 gens might as such have claims against them; and 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 and 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 the Claudia 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 as gentiles what they lost as patroni, may be doubted.

It is generally said or supposed that the hereditas which came to a gens was divided among the gentiles, which must mean the heads of familiae. This may be so; at least we must conceive that 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 without having disposed of it or leaving those whom the law recognizes as immediately entitled to it in case 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 the 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 originally 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 to a small number.

There were certain sacred rites (sacra gentilitia) which belonged to a gens, to the observance of which all at members of a gens, as such, were bound, whether 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 adopted 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, c42). It was the duty of the pontifices to look after the due observation of the gentile sacra, and to see that p569they were not lost (Pro Domo, c13, &c.). Each gens seems to have had its peculiar place (sacellum) 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 be 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 part 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 gens seems to be often used in the same sense (Cic. pro Balbo, c14). 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, 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 (jures 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 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, if a plebeian married a patrician woman, before there was connubium between them; for it 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 consequent 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 τοὺς γένει προσήκοντας of Dionysius (II.10),º 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 representatives p570of the Luceres, the third and inferior tribe; and they were called Patres Minorum gentium (Liv. I.35). See the curious letter of Cicero to Paetus (ad Fam. IX.21).

If gentes were subdivisions of a curia, as already stated, it may be asked what is meant by new gentes being introduced among the curiae, for this undoubtedly took place. Tullus Hostilius incorporated the Julii, Servilii, and others, among the Patricii, and consequently among the curiae. The Claudii were a Sabine gens, who, it was said (Liv. IV.3), were received among the patricii after the banishment of the kings. A recent writer (Goettling) attempts to remove this difficulty by assuming, according to his interpretation of Dionysius (II.7), a division of the curiae into ten decuriae, and by the further assumption of an indefinite number of gentes in each decuria. Consistently with this, he assumes a kinship among the members of the same gens, according to which hypothesis the several patres-familiae of such gens must have descended, or claimed descent, from a common ancestor. Thus the gentes would be nothing more than aggregates of kindred families, and it must have been contrived in making the division into decuriae, that all the members of a gens (thus understood) must have been included in the same decuria. But to assume this, is nothing more than to say that the political system was formed by making aggregation of families the basis of the political system, and then ascending from them to decuriae, from decuriae to curiae, and from curiae to tribes; a proceeding which is inconsistent with saying that the curiae were subdivided into decuriae, for this mode of expression implies that the curiae were formed before the decuriae. But the introduction of new gentes is conceivable even on the hypothesis of the gens being a mere political division. If the number was originally limited, it is perfectly consistent with what we know of the Roman constitution, which was always in a state of progressive change, to suppose that the strict rule of limitation was soon neglected. Now if a new gens was introduced, it must have been assimilated to the old gentes by having a distinctive name; and if a number foreigners were admitted as a gens, it is conceivable that they would take the name of some distinguished person among them, who might be the head of a family consisting of many branches, each with a numerous body of retainers. And this is the better tradition as to the patrician Claudii, who came to Rome with Atta Claudius, their head (gentis princeps), after the expulsion of the kings, and were co-optatedº (cooptati) by the patres among the patricii; which is the same thing as saying that this immigrating body was recognised as a Roman gens (Sueton. Tib. 1; Liv. II.16). According to the tradition, Atta Claudius received a tract of land for his clients on the Anio, and a piece of burying-ground, under the Capitol, was given to him by the state (publice). According to the original constitution of a gens, the possession of a common burying-place, and the gentile right to interment therein, were a part of the gentile sacra. (Cic. Leg.II.22; Vell. Pat. II.119; Festus, s.v. Cincia; Liv. IV.3, VI.40; Virgil, Aen. VII.706. As to the Gens Octavia, see Suetonius, Aug. 2.)

It is probable that even in the time of Cicero the proper notion of a gens and is rights were ill understood; and still later, owing to the great changes in the constitution, and the extinction of so many ancient gentes, the traces of the jus gentilitium were nearly effaced. Thus we find that the words gens and familia are used indifferently by later writers, though Livy carefully distinguishes them. The "elder Pliny speaks of the sacra Serviliae familiae; Macrobius of the sacra familiae Claudiae, Aemiliae, Juliae, Corneliae; and an ancient inscription mentions an Aedituus and a Sacerdos Sergiae familiae, though these were all well known ancient gentes, and these sacra, in the more correct language of the older writers, would certainly have been called sacra gentilitia." (Savigny, Zeitschrift, &c. vol. II, p385).

In the time of Gaius (the age of the Antonines), the jus gentilitium had entirely fallen into disuse (Gaius, III.17). Thus an ancient institution, which formed an integral part of the old constitution, and was long held together by the conservative power of religious rights, gradually lost its primitive character in the changes which circumstances impressed on the form of the Roman state, and was finally extinguished.

The word Gens has recently been rendered in English by the word House, a term which has here been purposely not used, as it is not necessary, and can only lead to misconception.

The subject of the gens is discussed with great acuteness both by Niebuhr (Rom. Hist. vol. I) and by Malden (Hist. of Rome, published by the Society for the Diffusion of Useful Knowledge).

The views of Goettling are contained in his Geschichte der Röm. Staatsverfassung, Halle, 1840, and those of Becker in his Handbuch der Römischen Alterthümer 2ter Theil, 1ste Abth. See also Savigny, Zeitschrift, &c. vol. II p380, &c., and Unterholzner, Zeitschrift, &c. vol. V p119.


The Author's Note:

1 "Gentilis dicitur et ex eodem genere ortus, et is qui simili nomine appellatur." The second et is sometimes read ut, which is manifestly not the right reading, as the context shows. Besides, if the words "ut is qui simili nomine appellantur," are to be taken as an illustration of "ex eodem genere ortus," as they must be if ut is the correct reading, then the notion of a common name is viewed as of necessity being contained in the notion of common kin, whereas there may be common kin without common name, and common name without common kin. Thus neither does common name include all common kin, nor does common kin include all common name; yet each includes something that the other includes.


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