Cicero does not attempt to define a gens, but rather to furnish certain tests by which the right to the gentile connection might be proved, or the loss of it be detected. Neither of these definitions show the composition of a gens; that is, whether all, or a part only, of the descendants of a supposed genarch were entitled to bear the gentile name; and, if a part only, what part. With descent in the male line the gens would include those only who could trace their descent though males exclusively; and if in the female line, then through females only. If limited to neither, then all the descendants would be included. These definitions must have assumed that descent in the male line was a fact known to all. From other sources it appears that those only belonged to the gens who could trace their descent through its male members. Roman genealogies supply this proof. Cicero omitted the material fact that those were gentiles who could trace their descent through males exclusively from an acknowledged ancestor within the gens. It is in part supplied by Festus and Varro. From an Aemilius, the latter remarks, men are born Aemilii, and gentiles; each must be born of a male bearing the gentile name. But Cicero’s definition also shows that a gentilis must bear the gentile name.

In the address of the Roman tribune Canuleius (445 B. C.), on his proposition to repeal an existing law forbidding intermarriage between patricians and plebeians, there is a statement implying descent in the male line. For what else is there in the matter, he remarks, if a patrician man shall wed a plebeian woman, or a plebeian man a patrician woman? What right in the end is thereby changed? The children surely follow the father, (nempe patrem sequuntur liberi.)289

A practical illustration, derived from transmitted gentile names, will show conclusively that descent was in the male line. Julia, the sister of Caius Julius Caesar, married Marcus Attius Balbus. Her name shows that she belonged to the Julian gens.290 Her daughter Attia, according to custom, took the gentile name of her father and belonged to the Attian gens. Attia married Caius Octavius, and became the mother of Caius Octavius, the first Roman emperor. The son, as usual, took the gentile name of his father, and belonged to the Octavian gens.291 After becoming emperor he added the names Caesar Augustus.

In the Roman gens descent was in the male line from Augustus back to Romulus, and for an unknown period back of the latter. None were gentiles except such as could trace their descent through males exclusively from some acknowledged ancestor within the gens. But it was unnecessary, because impossible, that all should be able to trace their descent from the same common ancestor; and much less from the eponymous ancestor.

It will be noticed that in each of the above cases, to which a large number might be added, the persons married out of the gens. Such was undoubtedly the general usage by customary law.

The Roman gens was individualized by the following rights, privileges and obligations:

These several characteristics will be considered in the order named.

I. Mutual rights of succession to the property of deceased gentiles.

When the law of the Twelve Tables was promulgated (451 B. C.), the ancient rule, which presumptively distributed the inheritance among the gentiles, had been superseded by more advanced regulations. The estate of an intestate now passed, first, to his sui heredes, that is, to his children; and, in default of children, to his lineal descendants through males.292 The living children took equally, and the children of deceased sons took the share of their father equally. It will be noticed that the inheritance remained in the gens; the children of the female descendants of the intestate, who belonged to other gentes, being excluded. Second, if there were no sui heredes, by the same law, the inheritance then passed to the agnates.293 The agnatic kindred comprised all those persons who could trace their descent through males from the same common ancestor with the intestate. In virtue of such a descent they all bore the same gentile name, females as well as males, and were nearer in degree to the decedent than the remaining gentiles. The agnates nearest in degree had the preference; first, the brothers and unmarried sisters; second, the paternal uncles and unmarried aunts of the intestate, and so on until the agnatic relatives were exhausted. Third, if there were no agnates of the intestate, the same law called the gentiles to the inheritance.294 This seems at first sight remarkable; because the children of the intestate’s sisters were excluded from the inheritance, and the preference given to gentile kinsmen so remote that their relationship to the intestate could not be traced at all, and only existed in virtue of an ancient lineage preserved by a common gentile name. The reason, however, is apparent; the children of the sisters of the intestate belonged to another gens, and the gentile right predominated over greater nearness of consanguinity, because the principle which retained the property in the gens was fundamental. It is a plain inference from the law of the Twelve Tables that inheritance began in the inverse order, and that the three classes of heirs represent the three successive rules of inheritance; namely: first, the gentiles; second, the agnates, among whom were the children of the decedent after descent was changed to the male line; and third, the children, to the exclusion of the remaining agnates.

A female, by her marriage, suffered what was technically called a loss of franchise or capital diminution (deminutio capitis), by which she forfeited her agnatic rights. Here again the reason is apparent. If after her marriage she could inherit as an agnate it would transfer the property inherited from her own gens to that of her husband. An unmarried sister could inherit, but a married sister could not.

With our knowledge of the archaic principles of the gens, we are enabled to glance backward to the time when descent in the Latin gens was in the female line, when property was inconsiderable, and distributed among the gentiles; not necessarily within the life-time of the Latin gens, for its existence reached back of the period of their occupation of Italy. That the Roman gens had passed from the archaic into its historical form is partially indicated by the reversion of property in certain cases to the gentiles.295

“The right of succeeding to the property of members who died without kin and intestate,” Niebuhr remarks, “was that which lasted the longest; so long indeed, as to engage the attention of the jurists, and even—though assuredly not as anything more than a historical question—that of Gaius, the manuscript of whom is unfortunately illegible in this part.”296

II. A common burial place.

The sentiment of gentilism seems to have been stronger in the Upper Status of barbarism than in earlier conditions, through a higher organization of society, and through mental and moral advancement. Each gens usually had a burial place for the exclusive use of its members as a place of sepulture. A few illustrations will exhibit Roman usages with respect to burial.

Appius Claudius, the chief of the Claudian gens, removed from Regili, a town of the Sabines, to Rome in the time of Romulus, where in due time he was made a senator, and thus a patrician. He brought with him the Claudian gens, and such a number of clients that his accession to Rome was regarded as an important event. Suetonius remarks that the gens received from the state lands upon the Anio for their clients, and

. a burial place for themselves near the capitol.297 This statement seems to imply that a common burial place was, at that time, considered indispensable to a gens. The Claudii, having abandoned their Sabine connection and identified themselves with the Roman people, received both a grant of lands and a burial place for the gens, to place them in equality of condition with the Roman gentes. The transaction reveals a custom of the times.

The family tomb had not entirely superseded that of the gens in the time of Julius Caesar, as was illustrated by the case of Quintilius Varus, who, having lost his army in Germany, destroyed himself, and his body fell into the hands of the enemy. The half-burned body of Varus, says Paterculus, was mangled by the savage enemy; his head was cut off, and brought to Maroboduus, and by him having been sent to Caesar, was at length honored with burial in the gentile sepulchre.298

In his treatise on the laws, Cicero refers to the usages of his own times in respect to burial in the following language: now the sacredness of burial places is so great that it is affirmed to be wrong to perform the burial independently of the sacred rites of the gens. Thus in the time of our ancestors A. Torquatus decided respecting the Popilian gens.299 The purport of the statement is that it was a religious duty to bury the dead with sacred rites, and when possible in land belonging to the gens. It further appears that cremation and inhumation were both practiced prior to the promulgation of the Twelve Tables, which prohibited the burying or burning of dead bodies within the city.300 The columbarium, which would usually accommodate several hundred urns, was eminently adapted to the uses of a gens. In the time of Cicero the gentile organization had fallen into decadence, but certain usages peculiar to it had remained, and that respecting a common burial place among the number. The family tomb began to take the place of that of the gens, as the families in the ancient gentes rose into complete autonomy; nevertheless, remains of ancient gentile usages with respect to burial manifested themselves in various ways, and were still fresh in the history of the past.

III. Common sacred rites; sacra gentilicia.

The Roman sacra embody our idea of divine worship, and were either public or private. Religious rites performed by a gens were called sacra privata, or sacra gentilicia. They were performed regularly at stated periods by the gens.301 Cases are mentioned in which the expenses of maintaining these rites had become a burden in consequence of the reduced numbers in the gens. They were gained and lost by circumstances, e. g., adoption or marriage.302 “That the members of the Roman gens had common sacred rites,” observes Niebuhr, “is well known; there were sacrifices appointed for stated days and places.”303 The sacred rites, both public and private, were under pontifical regulation exclusively, and not subject to civil cognizance.304

The religious rites of the Romans seem to have had their primary connection with the gens rather than the family. A college of pontiffs, of curiones, and of augurs, with an elaborate system of worship under these priesthoods, in due time grew into form and became established; but the system was tolerant and free. The priesthood was in the main elective.305 The head of every family also was the priest of the household.306 The gentes of the Greeks and Romans were the fountains from which flowed the stupendous mythology of the classical world.

In the early days of Rome many gentes had each their own sacellum for the performance of their religious rites. Several gentes had each special sacrifices to perform, which had been transmitted from generation to generation, and were regarded as obligatory; as those of the Nautii to Minerva, of the Fabii to Hercules, and of the Horatii in expiation of the sororicide committed by Horatius.307 It is sufficient for my purpose to have shown generally that each gens had its own religious rites as one of the attributes of the organization.

IV. The obligation not to marry in the gens.

Gentile regulations were customs having the force of law. The obligation not to marry in the gens was one of the number. It does not appear to have been turned, at a later day, into a legal enactment; but evidence that such was the rule of the gens appears in a number of ways. The Roman genealogies show that marriage was out of the gens, of which instances have been given. This, as we have seen, was the archaic rule for reasons of consanguinity. A woman by her marriage forfeited her agnatic rights, to which rule there was no exception. It was to prevent the transfer of property by marriage from one gens to another, from the gens of her birth to the gens of her husband. The exclusion of the children of a female from all rights of inheritance from a maternal uncle or maternal grandfather, which followed, was for the same reason. As the female was required to marry out of her gens her children would be of the gens of their father, and there could be no privity of inheritance between members of different gentes.

V. The possession of lands in common.

The ownership of lands in common was so general among barbarous tribes that the existence of the same tenure among the Latin tribes is no occasion for surprise. A portion of their lands seems to have been held in severalty by individuals from a very early period. No time can be assigned when this was not the case; but at first it was probably the possessory right to lands in actual occupation, so often before referred to, which was recognized as far back as the Lower Status of barbarism.

Among the rustic Latin tribes, lands were held in common by each tribe, other lands by the gentes, and still other by households.

Allotments of lands to individuals became common at Rome in the time of Romulus, and afterwards quite general. Varro and Dionysius both state that Romulus allotted two jugera (about two and a quarter acres) to each man.308 Similar allotments are said to have been afterwards made by Numa and Servius Tullius. They were the beginnings of absolute ownership in severalty, and presuppose a settled life as well as a great advancement in intelligence. It was not only admeasured but granted by the government, which was very different from a possessory right in lands growing out of an individual act. The idea of absolute individual ownership of land was a growth through experience, the complete attainment of which belongs to the period of civilization. These lands, however, were taken from those held in common by the Roman people. Gentes, curiæ and tribes held certain lands in common after civilization had commenced, beyond those held by individuals in severalty.

Mommsen remarks that “the Roman territory was divided in the earliest times into a number of clan-districts, which were subsequently employed in the formation of the earliest rural wards (tribus rusticæ).... These names are not, like those of the districts added at a later period, derived from the localities, but are formed without exception from the names of the clans.”309 Each gens held an independent district, and of necessity was localized upon it. This was a step in advance, although it was the prevailing practice not only in the rural districts, but also in Rome, for the gentes to localize in separate areas. Mommsen further observes: “As each household had its own portion of land, so the clan-household or village, had clan-lands belonging to it, which, as will afterwards be shown, were managed up to a comparatively late period after the analogy of house-lands, that is, on the system of joint possession.... These clanships, however, were from the beginning regarded not as independent societies, but as integral parts of a political community (civitas populi). This first presents itself as an aggregate of a number of clan-villages of the same stock, language and manners, bound to mutual observance of law and mutual legal redress and to united action in aggression and defense.”310 Clan is here used by Mommsen, or his translator, in the place of gens, and elsewhere canton is used in the place of tribe, which are the more singular since the Latin language furnishes specific terms for these organizations which have become historical. Mommsen represents the Latin tribes anterior to the founding of Rome as holding lands by households, by gentes and by tribes; and he further shows the ascending series of social organizations in these tribes; a comparison of which with those of the Iroquois, discloses their close parallelism, namely, the gens, tribe and confederacy.311 The phratry is not mentioned although it probably existed. The household referred to could scarcely have been a single family. It is not unlikely that it was composed of related families who occupied a joint-tenement house, and practiced communism in living in the household.

VI. Reciprocal obligations of help, defense and redress of injuries.

During the period of barbarism the dependence of the gentiles upon each other for the protection of personal rights would be constant; but after the establishment of political society, the gentilis, now a citizen, would turn to the law and to the state for the protection before administered by his gens. This feature of the ancient system would be one of the first to disappear under the new. Accordingly but slight references to these mutual obligations are found in the early authors. It does not follow, however, that the gentiles did not practice these duties to each other in the previous period; on the contrary, the inference that they did is a necessary one from the principles of the gentile organization. Remains of these special usages appear, under special circumstances, well down in the historical period. When Appius Claudius was cast into prison (about 432 B. C.), Caius Claudius, then at enmity with him, put on mourning, as well as the whole Claudian gens.312 A calamity or disgrace falling upon one member of the body was felt and shared by all. During the second Punic war, Niebuhr remarks, “the gentiles united to ransom their fellows who were in captivity, and were forbidden to do it by the senate. This obligation is an essential characteristic of the gens.”313 In the case of Camillus, against whom a tribune had lodged an accusation on account of the Veientian spoil, he summoned to his house before the day appointed for his trial his tribesmen and clients to ask their advice, and he received for an answer that they would collect whatever sum he was condemned to pay; but to clear him was impossible.314 The active principle of gentilism is plainly illustrated in these cases. Niebuhr further remarks that the obligation to assist their indigent gentiles rested on the members of Roman gens.315

VII. The right to bear the gentile name.

This followed necessarily from the nature of the gens. All such persons as were born sons or daughters of a male member of the gens were themselves members, and of right entitled to bear the gentile name. In the lapse of time it was found impossible for the members of a gens to trace their descent back to the founder, and, consequently, for different families within the gens to find their connection through a later common ancestor. Whilst this inability proved the antiquity of the lineage, it was no evidence that these families had not sprung from a remote common ancestor. The fact that persons were born in the gens, and that each could trace his descent through a series of acknowledged members of the gens, was sufficient evidence of gentile descent, and strong evidence of the blood connection of all the gentiles. But some investigators, Niebuhr among the number,316 have denied the existence of any blood relationship between the families in a gens, since they could not show a connection through a common ancestor. This treats the gens as a purely fictitious organization, and is therefore untenable. Niebuhr’s inference against a blood connection from Cicero’s definition is not sustainable. If the right of a person to bear the gentile name were questioned, proof of the right would consist, not in tracing his descent from the genarch, but from a number of acknowledged ancestors within the gens. Without written records the number of generations through which a pedigree might be traced would be limited. Few families in the same gens might not be able to find a common ancestor, but it would not follow that they were not of common descent from some remote ancestor within the gens.317

After descent was changed to the male line the ancient names of the gentes, which not unlikely were taken from animals,318 or inanimate objects, gave place to personal names. Some individual, distinguished in the history of the gens, became its eponymous ancestor, and this person, as elsewhere suggested, was not unlikely superseded by another at long intervals of time. When a gens divided in consequence of separation in area, one division would be apt to take a new name; but such a change of name would not disturb the kinship upon which the gens was founded. When it is considered that the lineage of the Roman gentes, under changes of names, ascended to the time when the Latins, Greeks and the Sanskrit speaking people of India were one people, without reaching its source, some conception of its antiquity may be gained. The loss of the gentile name at any time by any individual was the most improbable of all occurrences; consequently its possession was the highest evidence that he shared with his gentiles the same ancient lineage. There was one way, and but one, of adulterating gentile descent, namely: by the adoption of strangers in blood into the gens. This practice prevailed, but the extent of it was small. If Neibuhr had claimed that the blood relationship of the gentiles had become attenuated by lapse of time to an inappreciable quantity between some of them, no objection could be taken to his position; but a denial of all relationship which turns the gens into a fictitious aggregation of persons, without any bond of union, controverts the principle upon which the gens came into existence, and which perpetuated it through three entire ethnical periods.

Elsewhere I have called attention to the fact that the gens came in with a system of consanguinity which reduced all consanguinei to a small number of categories, and retained their descendants indefinitely in the same. The relationships of persons were easily traced, no matter how remote their actual common ancestor. In an Iroquois gens of five hundred persons, all its members are related to each other and each person knows or can find his relationship to every other; so that the fact of kin was perpetually present in the gens of the archaic period. With the rise of the monogamian family, a new and totally different system of consanguinity came in, under which the relationships between collaterals soon disappeared. Such was the system of the Latin and Grecian tribes at the commencement of the historical period. That which preceded it was, presumptively at least, Turanian, under which the relationships of the gentiles to each other would have been known.

After the decadence of the gentile organization commenced, new gentes ceased to form by the old process of segmentation; and some of those existing died out. This tended to enhance the value of gentile descent as a lineage. In the times of the empire, new families were constantly establishing themselves in Rome from foreign parts, and assuming gentile names to gain social advantages. This practice being considered an abuse, the Emperor Claudius (A. D. 40-54), prohibited foreigners from assuming Roman names, especially those of the ancient gentes.319 Roman families, belonging to the historical gentes, placed the highest value upon their lineages both under the republic and the empire.

All the members of a gens were free, and equal in their rights and privileges, the poorest as well as the richest, the distinguished as well as the obscure; and they shared equally in whatever dignity the gentile name conferred which they inherited as a birthright. Liberty, equality and fraternity were cardinal principles of the Roman gens, not less certainly than of the Grecian, and of the American Indian.

VIII. The right of adopting strangers in blood into the gens.

In the times of the republic, and also of the empire, adoption into the family, which carried the person into the gens of the family, was practiced; but it was attended with formalities which rendered it difficult. A person who had no children, and who was past the age to expect them, might adopt a son with the consent of the pontifices, and of the comitia curiata. The college of pontiffs were entitled to be consulted lest the sacred rites of the family, from which the adopted person was taken, might thereby be impaired;320 as also the assembly, because the adopted person would receive the gentile name, and might inherit the estate of his adoptive father. From the precautions which remained in the time of Cicero, the inference is reasonable that under the previous system, which was purely gentile, the restrictions must have been greater and the instances rare. It is not probable that adoption in the early period was allowed without the consent of the gens, and of the curia to which the gens belonged; and if so, the number adopted must have been limited. Few details remain of the ancient usages with respect to adoption.

IX. The right of electing and deposing its chiefs; query.

The incompleteness of our knowledge of the Roman gentes is shown quite plainly by the absence of direct information with respect to the tenure of the office of chief (princeps). Before the institution of political society each gens had its chief, and probably more than one. When the office became vacant it was necessarily filled, either by the election of one of the gentiles, as among the Iroquois, or taken by hereditary right. But the absence of any proof of hereditary right, and the presence of the elective principle with respect to nearly all offices under the republic, and before that, under the reges, leads to the inference that hereditary right was alien to the institutions of the Latin tribes. The highest office, that of rex, was elective, the office of senator was elective or by appointment, and that of consuls and of inferior magistrates. It varied with respect to the college of pontiffs instituted by Numa. At first the pontiffs themselves filled vacancies by election. Livy speaks of the election of a pontifex maximus by the comitia about 212 B. C.321 By the lex Domitia the right to elect the members of the several colleges of pontiffs and of priests was transferred to the people, but the law was subsequently modified by Sulla.322

The active presence of the elective principle among the Latin gentes when they first come under historical notice, and from that time through the period of the republic, furnishes strong grounds for the inference that the office of chief was elective in tenure. The democratic features of their social system, which present themselves at so many points, were inherited from the gentes. It would require positive evidence that the office of chief passed by hereditary right to overcome the presumption against it. The right to elect carries with it the right to depose from office, where the tenure is for life.

These chiefs, or a selection from them, composed the council of the several Latin tribes before the founding of Rome, which was the principal instrument of government. Traces of the three powers co-ordinated in the government appear among the Latin tribes as they did in the Grecian, namely: the council of chiefs, the assembly of the people, to which we must suppose the more important public measures were submitted for adoption or rejection, and the military commander. Mommsen remarks that “All of these cantons [tribes] were in primitive times politically sovereign, and each of them was governed by its prince, and the co-operation of the council of elders, and the assembly of the warriors.”323 The order of Mommsen’s statement should be reversed, and the statement qualified. This council, from its functions and from its central position in their social system, of which it was a growth, held of necessity the supreme power in civil affairs. It was the council that governed, and not the military commander. “In all the cities belonging to civilized nations on the coasts of the Mediterranean,” Niebuhr observes, “a senate was a no less essential and indispensable part of the state, than a popular assembly; it was a select body of elder citizens; such a council, says Aristotle, there always is, whether the council be aristocratical or democratical; even in oligarchies, be the number of sharers in the sovereignty ever so small, certain councilors are appointed for preparing public measures.”324 The senate of political society succeeded the council of chiefs of gentile society. Romulus formed the first Roman senate of a hundred elders; and as there were then but a hundred gentes, the inference is substantially conclusive that they were the chiefs of these gentes. The office was for life, and non-hereditary; whence the final inference, that the office of chief was at the time elective. Had it been otherwise there is every probability that the Roman senate would have been instituted as an hereditary body. Evidence of the essentially democratic constitution of ancient society meets us at many points, which fact has failed to find its way into the modern historical expositions of Grecian and Roman gentile society.

With respect to the number of persons in a Roman gens, we are fortunately not without some information. About 474 B. C. the Fabian gens proposed to the senate to undertake the Veientian war as a gens, which they said required a constant rather than a large force.325 Their offer was accepted, and they marched out of Rome three hundred and six soldiers, all patricians, amid the applause of their countrymen.326 After a series of successes they were finally cut off to a man through an ambuscade. But they left behind them at Rome a single male under the age of puberty, who alone remained to perpetuate the Fabian gens.327 It seems hardly credible that three hundred should have left in their families but a single male child, below the age of puberty, but such is the statement. This number of persons would indicate an equal number of females, who, with the children of the males, would give an aggregate of at least seven hundred members of the Fabian gens.

Although the rights, obligations and functions of the Roman gens have been inadequately presented, enough has been adduced to show that this organization was the source of their social, governmental and religious activities. As the unit of their social system it projects its character upon the higher organizations into which it entered as a constituent. A much fuller knowledge of the Roman gens than we now possess is essential to a full comprehension of Roman institutions in their origin and development.

CHAPTER XII. - THE ROMAN CURIA, TRIBE AND POPULUS.

Roman Gentile Society.—Four Stages of Organization—1. The Gens; 2. The Curia, consisting of Ten Gentes; 3. The Tribe, composed of Ten Curiæ; 4. The Populus Romanus, composed of Three Tribes.—Numerical Proportions—How Produced.—Concentration of Gentes at Rome.—The Roman Senate.—Its Functions.—The Assembly of the People.—Its Powers.—The People Sovereign.—Office of Military Commander (Rex).—Its Powers and Functions.—Roman Gentile Institutions essentially Democratical.

Having considered the Roman gens, it remains to take up the curia composed of several gentes, the tribe composed of several curiæ, and lastly the Roman people composed of several tribes. In pursuing the subject the inquiry will be limited to the constitution of society as it appeared from the time of Romulus to that of Servius Tullius, with some notice of the changes which occurred in the early period of the republic while the gentile system was giving way, and the new political system was being established.

It will be found that two governmental organizations were in existence for a time, side by side, as among the Athenians, one going out and the other coming in. The first was a society (societas), founded upon the gentes; and the other a state (civitas), founded upon territory and upon property, which was gradually supplanting the former. A government in a transitional stage is necessarily complicated, and therefore difficult to be understood. These changes were not violent but gradual, commencing with Romulus and substantially completed, though not perfected, by Servius Tullius; thus embracing a supposed period of nearly two hundred years, crowded with events of great moment to the infant commonwealth. In order to follow the history of the gentes to the overthrow of their influence in the state it will be necessary, after considering the curia, tribe and nation, to explain briefly the new political system. The last will form the subject of the ensuing chapter.

Gentile society among the Romans exhibits four stages of organization: first, the gens, which was a body of consanguinei and the unit of the social system; second, the curia, analogous to the Grecian phratry, which consisted of ten gentes united in a higher corporate body; third, the tribe, consisting of ten curiæ, which possessed some of the attributes of a nation under gentile institutions; and fourth, the Roman people (Populus Romanus), consisting, in the time of Tullus Hostilius, of three such tribes united by coalescence in one gentile society, embracing three hundred gentes. There are facts warranting the conclusion that all the Italian tribes were similarly organized at the commencement of the historical period; but with this difference, perhaps, that the Roman curia was a more advanced organization than the Grecian phratry, or the corresponding phratry of the remaining Italian tribes; and that the Roman tribe, by constrained enlargement, became a more comprehensive organization than in the remaining Italian stocks. Some evidence in support of these statements will appear in the sequel.

Before the time of Romulus the Italians, in their various branches, had become a numerous people. The large number of petty tribes, into which they had become subdivided, reveals that state of unavoidable disintegration which accompanies gentile institutions. But the federal principle had asserted itself among the other Italian tribes as well as the Latin, although it did not result in any confederacy that achieved important results. Whilst this state of things existed, that great movement ascribed to Romulus occurred, namely: the concentration of a hundred Latin gentes on the banks of the Tiber, which was followed by a like gathering of Sabine, Latin and Etruscan and other gentes, to the additional number of two hundred, ending in their final coalescence into one people. The foundations of Rome were thus laid, and Roman power and civilization were to follow. It was this consolidation of gentes and tribes under one government, commenced by Romulus and completed by his successors, that prepared the way for the new political system—for the transition from a government based upon persons and upon personal relations, into one based upon territory and upon property.

It is immaterial whether either of the seven so-called kings of Rome were real or mythical persons, or whether the legislation ascribed to either of them is fabulous or true, so far as this investigation is concerned: because the facts with respect to the ancient constitution of Latin society remained incorporated in Roman institutions, and thus came down to the historical period. It fortunately so happens that the events of human progress embody themselves, independently of particular men, in a material record, which is crystallized in institutions, usages and customs, and preserved in inventions and discoveries. Historians, from a sort of necessity, give to individuals great prominence in the production of events; thus placing persons, who are transient, in the place of principles, which are enduring. The work of society in its totality, by means of which all progress occurs, is ascribed far too much to individual men, and far too little to the public intelligence. It will be recognized generally that the substance of human history is bound up in the growth of ideas, which are wrought out by the people and expressed in their institutions, usages, inventions and discoveries.

The numerical adjustment, before adverted to, of ten gentes to a curia, ten curiæ to a tribe, and three tribes of the Roman people, was a result of legislative procurement not older, in the first two tribes, than the time of Romulus. It was made possible by the accessions gained from the surrounding tribes, by solicitation or conquest; the fruits of which were chiefly incorporated in the Tities and Luceres, as they were successively formed. But such a precise numerical adjustment could not be permanently maintained through centuries, especially with respect to the number of gentes in each curia.

We have seen that the Grecian phratry was rather a religious and social than a governmental organization. Holding an intermediate position between the gens and the tribe, it would be less important than either, until governmental functions were superadded. It appears among the Iroquois in a rudimentary form, its social as distinguished from its governmental character being at that early day equally well marked. But the Roman curia, whatever it may have been in the previous period, grew into an organization more integral and governmental than the phratry of the Greeks; more is known, however, of the former than of the latter. It is probable that the gentes comprised in each curia were, in the main, related gentes; and that their reunion in a higher organization was further cemented by intermarriages, the gentes of the same curia furnishing each other with wives.

The early writers give no account of the institution of the curia; but it does not follow that it was a new creation by Romulus. It is first mentioned as a Roman institution in connection with his legislation, the number of curiæ in two of the tribes having been established in his time. The organization, as a phratry, had probably existed among the Latin tribes from time immemorial.

Livy, speaking of the favor with which the Sabine women were regarded after the establishment of peace between the Sabines and Latins through their intervention, remarks that Romulus, for this reason, when he had divided the people into thirty curiæ bestowed upon them their names.328 Dionysius uses the term phratry as the equivalent of curia, but gives the latter also (κουρία),329 and observes further, that Romulus divided the curiæ into decades, the ten in each being of course gentes.330 In like manner Plutarch refers to the fact that each tribe contained ten curiæ, which some say, he remarks, were called after the Sabine women.331 He is more accurate in the use of language than Livy or Dionysius in saying that each tribe contained ten curiæ, rather than that each was divided into ten, because the curiæ were made of gentes as original unities, and not the gentes out of a curia by subdivision. The work performed by Romulus was the adjustment of the number of gentes in each curia, and the number of curiæ in each tribe, which he was enabled to accomplish through the accessions gained from the surrounding tribes. Theoretically each curia should have been composed of gentes derived by segmentation from one or more gentes, and the tribe by natural growth through the formation of more than one curia, each composed of gentes united by the bond of a common dialect. The hundred gentes of the Ramnes were Latin gentes. In their organization into ten curiæ, each composed of ten gentes, Romulus undoubtedly respected the bond of kin by placing related gentes in the same curia, as far as possible, and then reached numerical symmetry by arbitrarily taking the excess of gentes from one natural curia to supply the deficiency in another. The hundred gentes of the tribe Tities were, in the main, Sabine gentes. These were also arranged in ten curiæ, and most likely on the same principle. The third tribe, the Luceres, was formed later from gradual accessions and conquests. It was heterogeneous in its elements, containing, among others, a number of Etruscan gentes. They were brought into the same numerical scale of ten curiæ each composed of ten gentes. Under this re-constitution, while the gens, the unit of organization, remained pure and unchanged, the curia was raised above its logical level, and made to include, in some cases, a foreign element which did not belong to a strict natural phratry; and the tribe also was raised above its natural level, and made to embrace foreign elements that did not belong to a tribe as the tribe naturally grew. By this legislative constraint the tribes, with their curiæ and gentes, were made severally equal, while the third tribe was in good part an artificial creation under the pressure of circumstances. The linguistic affiliations of the Etruscans are still a matter of discussion. There is a presumption that their dialect was not wholly unintelligible to the Latin tribes, otherwise they would not have been admitted into the Roman social system, which at the time was purely gentile. The numerical proportions thus secured, facilitated the governmental action of the society as a whole.

Niebuhr, who was the first to gain a true conception of the institutions of the Romans in this period, who recognized the fact that the people were sovereign, that the so-called kings exercised a delegated power, and that the senate was based on the principle of representation, each gens having a senator, became at variance with the facts before him in stating in connection with this graduated scale, that “such numerical proportions are an irrefragible proof that the Roman houses [gentes]332 were not more ancient than the constitution; but corporations formed by a legislator in harmony with the rest of his scheme.”333 That a small foreign element was forced into the curiæ of the second and third tribes, and particularly into the third, is undeniable; but that a gens was changed in its composition or reconstructed or made, was simply impossible. A legislator could not make a gens; neither could he make a curia, except by combining existing gentes around a nucleus of related gentes; but he might increase or decrease by constraint the number of gentes in a curia, and increase or decrease the number of curiæ in a tribe. Niebuhr has also shown that the gens was an ancient and universal organization among the Greeks and Romans, which renders his preceding declaration the more incomprehensible. Moreover it appears that the phratry was universal, at least among the Ionian Greeks, leaving it probable that the curia, perhaps under another name, was equally ancient among the Latin tribes. The numerical proportions referred to were no doubt the result of legislative procurement in the time of Romulus, and we have abundant evidence of the sources from which the new gentes were obtained with which these proportions might have been produced.

The members of the ten gentes united in a curia were called curiales among themselves. They elected a priest, curio, who was the chief officer of the fraternity. Each curia had its sacred rites, in the observance of which the brotherhood participated; its sacellum as a place of worship, and its place of assembly where they met for the transaction of business. Besides the curio, who had the principal charge of their religious affairs, the curiales also elected an assistant priest, flamen curialis, who had the immediate charge of these observances. The curia gave its name to the assembly of the gentes, the comitia curiata which was the sovereign power in Rome to a greater degree than the senate under the gentile system. Such, in general terms, was the organization of the Roman curia or phratry.334

Next in the ascending scale was the Roman tribe, composed of ten curiæ and a hundred gentes. When a natural growth, uninfluenced externally, a tribe would be an aggregation of such gentes as were derived by segmentation from an original gens or pair of gentes; all the members of which would speak the same dialect. Until the tribe itself divided, by processes before pointed out, it would include all the descendants of the members of these gentes. But the Roman tribe, with which alone we are now concerned, was artificially enlarged for special objects and by special means, but the basis and body of the tribe was a natural growth.

Prior to the time of Romulus each tribe elected a chief officer whose duties were magisterial, military and religious.335 He performed in the city magisterial duties for the tribe, as well as administered its sacra, and he also commanded its military forces in the field.336 He was probably elected by the curiæ collected in a general assembly; but here again our information is defective. It was undoubtedly an ancient office in each Latin tribe, peculiar in character and held by an elective tenure. It was also the germ of the still higher office of rex, or general military commander, the functions of the two offices being similar. The tribal chiefs are styled by Dionysius leaders of the tribes (τριβῶν ἡγεμονίας).337 When the three Roman tribes had coalesced into one people, under one senate, one assembly of the people, and one military commander, the office of tribal chief was overshadowed and became less important; but the continued maintenance of the office by an elective tenure confirms the inference of its original popular character.

An assembly of the tribe must also have existed, from a remote antiquity. Before the founding of Rome each Italian tribe was practically independent, although the tribes were more or less united in confederate relations. As a self-governing body each of these ancient tribes had its council of chiefs (who were doubtless the chiefs of the gentes), its assembly of the people, and its chiefs who commanded its military bands. These three elements in the organization of the tribe; namely, the council, the tribal chief, and the tribal assembly, were the types upon which were afterwards modeled the Roman senate, the Roman rex, and the comitia curiata. The tribal chief was in all probability called by the name of rex before the founding of Rome; and the same remark is applicable to the name of senators (senex), and the comitia (con-ire). The inference arises, from what is known of the condition and organization of these tribes, that their institutions were essentially democratical. After the coalescence of the three Roman tribes, the national character of the tribe was lost in the higher organization; but it still remained as a necessary integer in the organic series.

The fourth and last stage of organization was the Roman nation or people, formed, as stated, by the coalescence of three tribes. Externally the ultimate organization was manifested by a senate (senatus), a popular assembly (comitia curiata), and a general military commander (rex). It was further manifested by a city magistracy, by an army organization, and by a common national priesthood of different orders.338

A powerful city organization was from the first the central idea of their governmental and military systems, to which all areas beyond Rome remained provincial. Under the military democracy of Romulus, under the mixed democratical and aristocratical organization of the republic, and under the later imperialism it was a government with a great city in its centre, a perpetual nucleus, to which all additions by conquest were added as increments, instead of being made, with the city, common constituents of the government. Nothing precisely like this Roman organization, this Roman power, and the career of the Roman race, has appeared in the experience of mankind. It will ever remain the marvel of the ages.

As organized by Romulus they styled themselves the Roman People (Populus Romanus), which was perfectly exact. They had formed a gentile society and nothing more. But the rapid increase of numbers in the time of Romulus, and the still greater increase between this period and that of Servius Tullius, demonstrated the necessity for a fundamental change in the plan of government. Romulus and the wise men of his time had made the most of gentile institutions. We are indebted to his legislation for a grand attempt to establish upon the gentes a great national and military power; and thus for some knowledge of the character and structure of institutions which might otherwise have faded into obscurity, if they had not perished from remembrance. The rise of the Roman power upon gentile institutions was a remarkable event in human experience. It is not singular that the incidents that accompanied the movement should have come to us tinctured with romance, not to say enshrouded in fable. Rome came into existence through a happy conception, ascribed to Romulus, and adopted by his successors, of concentrating the largest possible number of gentes in a new city, under one government, and with their united military forces under one commander. Its objects were essentially military, to gain a supremacy in Italy, and it is not surprising that the organization took the form of a military democracy.

Selecting a magnificent situation upon the Tiber, where, after leaving the mountain range it had entered the campagna, Romulus occupied the Palatine Hill, the site of an ancient fortress, with a tribe of the Latins of which he was the chief. Tradition derived his descent from the chiefs of Alba, which is a matter of secondary importance. The new settlement grew with marvelous rapidity, if the statement is reliable that at the close of his life the military forces numbered 46,000 foot and 1,000 horse, which would indicate some 200,000 people in the city and in the surrounding region under its protection. Livy remarks that it was an ancient device (vetus consilium) of the founders of cities to draw to themselves an obscure and humble multitude, and then set up for their progeny the autocthonic claim.339 Romulus pursuing this ancient policy is said to have opened an asylum near the Palatine, and to have invited all persons in the surrounding tribe, without regard to character or condition, to share with his tribes the advantages and the destiny of the new city. A great crowd of people, Livy further remarks, fled to this place from the surrounding territories, slave as well as free, which was the first accession of foreign strength to the new undertaking.340 Plutarch,341 and Dionysius342 both refer to the asylum or grove, the opening of which, for the object and with the success named, was an event of probable occurrence. It tends to show that the people of Italy had then become numerous for barbarians, and that discontent prevailed among them in consequence, doubtless, of the imperfect protection of personal rights, the existence of domestic slavery, and the apprehension of violence. Of such a state of things a wise man would naturally avail himself if he possessed sufficient military genius to handle the class of men thus brought together. The next important event in this romantic narrative, of which the reader should be reminded, was the assault of the Sabines to avenge the entrapment of the Sabine virgins, now the honored wives of their captors. It resulted in a wise accommodation under which the Latins and Sabines coalesced into one society, but each division retaining its own military leader. The Sabines occupied the Quirinal and Capitoline Hills. Thus was added the principal part of the second tribe, the Tities, under Titius Tatius their military chief. After the death of the latter they all fell under the military command of Romulus.

Passing over Numa Pompilius, the successor of Romulus, who established upon a broader scale the religious institutions of the Romans, his successor, Tullus Hostilius, captured the Latin city of Alba and removed its entire population to Rome. They occupied the Cœlian Hill, with all the privileges of Roman citizens. The number of citizens was now doubled, Livy remarks;343 but not likely from this source exclusively. Ancus Martius, the successor of Tullus, captured the Latin city of Politorium, and following the established policy, transferred the people bodily to Rome.344 To them was assigned the Aventine Hill, with similar privileges. Not long afterwards the inhabitants of Tellini and Ficana were subdued and removed to Rome, where they also occupied the Aventine.345 It will be noticed that in each case the gentes brought to Rome, as well as the original Latin and Sabine gentes, remained locally distinct. It was the universal usage in gentile society, both in the Middle and in the Upper Status of barbarism, when the tribes began to gather in fortresses and in walled cities, for the gentes to settle locally together by gentes and by phratries.346 Such was the manner the gentes settled at Rome. The greater portion of these accessions were united in the third tribe, the Luceres, which gave it a broad basis of Latin gentes. It was not entirely filled until the time of Tarquinius Priscus, the fourth military leader from Romulus, some of the new gentes being Etruscan.

By these and other means three hundred gentes were gathered at Rome and there organized in curiæ and tribes, differing somewhat in tribal lineage; for the Ramnes, as before remarked, were Latins, the Tities were in the main Sabines and the Luceres were probably in the main Latins with large accessions from other sources. The Roman people and organization thus grew into being by a more or less constrained aggregation of gentes into curiæ, of curiæ into tribes, and of tribes into one gentile society. But a model for each integral organization, excepting the last, had existed among them and their ancestors from time immemorial; with a natural basis for each curia in the kindred gentes actually united in each, and a similar basis for each tribe in the common lineage of a greater part of the gentes united in each. All that was new in organization was the numerical proportions of gentes to a curia, of curiæ to a tribe, and the coalescence of the latter into one people. It may be called a growth under legislative constraint, because the tribes thus formed were not entirely free from the admixture of foreign elements; whence arose the new name tribus=a third part of the people, which now came in to distinguish this organism. The Latin language must have had a term equivalent to the Greek phylon (φῦλον) = tribe, because they had the same organization; but if so it has disappeared. The invention of this new term is some evidence that the Roman tribes contained heterogeneous elements, while the Grecian were pure, and kindred in the lineage of the gentes they contained.

Our knowledge of the previous constitution of Latin society is mainly derived from the legislation ascribed to Romulus, since it brings into view the anterior organization of the Latin tribes, with such improvements and modifications as the wisdom of the age was able to suggest. It is seen in the senate as a council of chiefs, in the comitia curiata as an assembly of the the people by curiæ, in the office of a general military commander, and in the ascending series of organizations. It is seen more especially in the presence of the gentes, with their recognized rights, privileges and obligations. Moreover, the government instituted by Romulus and perfected by his immediate successors presents gentile society in the highest structural form it ever attained in any portion of the human family. The time referred to was immediately before the institution of political society by Servius Tullius.

The first momentous act of Romulus, as a legislator, was the institution of the Roman senate. It was composed of a hundred members, one from each gens, or ten from each curia. A council of chiefs as the primary instrument of government was not a new thing among the Latin tribes. From time immemorial they had been accustomed to its existence and to its authority. But it is probable that prior to the time of Romulus it had become changed, like the Grecian councils, into a pre-considering body, obligated to prepare and submit to an assembly of the people the most important public measures for adoption or rejection. This was in effect a resumption by the people of powers before vested in the council of chiefs. Since no public measure of essential importance could become operative until it received the sanction of the popular assembly, this fact alone shows that the people were sovereign, and not the council, nor the military commander. It reveals also the extent to which democratic principles had penetrated their social system. The senate instituted by Romulus, although its functions were doubtless substantially similar to those of the previous council of chiefs, was an advance upon it in several respects. It was made up either of the chiefs or of the wise men of the gentes. Each gens, as Niebuhr remarks, “sending its decurion who was its alderman,”347 to represent it in the senate. It was thus a representative and an elective body in its inception, and it remained elective, or selective, down to the empire. The senators held their office for life, which was the only term of office then known among them, and therefore not singular. Livy ascribes the selection of the first senators to Romulus, which is probably an erroneous statement, for the reason that it would not have been in accordance with the theory of their institutions. Romulus chose a hundred senators, he remarks, either because that number was sufficient, or because there were but a hundred who could be created Fathers. Fathers certainly they were called on account of their official dignity, and their descendants were called patricians.348 The character of the senate as a representative body, the title of Fathers of the People bestowed upon its members, the life-tenure of the office, but, more than all these considerations, the distinction of patricians conferred upon their children and lineal descendants in perpetuity, established at a stroke an aristocracy of rank in the centre of their social system where it became firmly intrenched. The Roman senate, from its high vocation, from its composition, and from the patrician rank received by its members and transmitted to their descendants, held a powerful position in the subsequent state. It was this aristocratic element, now for the first time planted in gentilism, which gave to the republic its mongrel character, and which, as might have been predicted, culminated in imperialism, and with it in the final dissolution of the race. It may perhaps have increased the military glory and extended the conquests of Rome, whose institutions, from the first, aimed at a military destiny; but it shortened the career of this great and extraordinary people, and demonstrated the proposition that imperialism of necessity will destroy any civilized race. Under the republic, half aristocratic, half democratic, the Romans achieved their fame, which one can but think would have been higher in degree, and more lasting in its fruits, had liberty and equality been nationalized, instead of unequal privileges and an atrocious slavery. The long protracted struggle of the plebeians to eradicate the aristocratic element represented by the senate, and to recover the ancient principles of democracy, must be classed among the heroic labors of mankind.

After the union of the Sabines the senate was increased to two hundred by the addition of a hundred senators349 from the gentes of the tribe Tities; and when the Luceres had increased to a hundred gentes in the time of Tarquinius Priscus, a third hundred senators were added from the gentes of this tribe.350 Cicero has left some doubt upon this statement of Livy, by saying that Tarquinius Priscus doubled the original number of the senators.351 But Schmitz well suggests, as an explanation of the discrepancy, that at the time of the final increase the senate may have become reduced to a hundred and fifty members, and been filled up to two hundred from the gentes of the first two tribes, when the hundred were added from the third. The senators taken from the tribes Ramnes and Tities were thenceforth called Fathers of the Greater Gentes (patres maiorum gentium), and those of the Luceres Fathers of the Lesser Gentes (patres minorum gentium).352 From the form of the statement the inference arises that the three hundred senators represented the three hundred gentes, each senator representing a gens. Moreover, as each gens doubtless had its principal chief (princeps), it becomes extremely probable that this person was chosen for the position either by his gens, or the ten were chosen together by the curia, from the ten gentes of which it was composed. Such a method of representation and of choice is most in accordance with what is known of Roman and gentile institutions.353 After the establishment of the republic, the censors filled the vacancies in the senate by their own choice, until it was devolved upon the consuls. They were generally selected from the ex-magistrates of the higher grades.

The powers of the senate were real and substantial. All public measures originated in this body—those upon which they could act independently, as well as those which must be submitted to the popular assembly and be adopted before they could become operative. It had the general guardianship of the public welfare, the management of their foreign relations, the levying of taxes and of military forces, and the general control of revenues and expenditures. Although the administration of religious affairs belonged to the several colleges of priests, the senate had the ultimate power over religion as well. From its functions and vocation it was the most influential body which ever existed under gentile institutions.

The assembly of the people, with the recognized right of acting upon important public measures to be discussed by them and adopted or rejected, was unknown in the Lower, and probably in the Middle Status of barbarism; but it existed in the Upper Status, in the agora of the Grecian tribes, and attained its highest form in the ecclesia of the Athenians; and it also existed in the assembly of the warriors among the Latin tribes, attaining its highest form in the comitia curiata of the Romans. The growth of property tended to the establishment of the popular assembly, as a third power in gentile society, for the protection of personal rights and as a shield against the encroachments of the council of chiefs, and of the military commander. From the period of savagery, after the institution of the gentes, down to the times of Solon and Romulus, the popular element had always been active in ancient gentile society. The council of chiefs was usually open in the early conditions to the orators of the people, and public sentiment influenced the course of events. But when the Grecian and Latin tribes first came under historical notice the assembly of the people to discuss and adopt or reject public measures was a phenomenon quite as constant as that of a council of chiefs. It was more perfectly systematized among the Romans under the constitution of Romulus than among the Athenians in the time of Solon. In the rise and progress of this institution may be traced the growth and development of the democratic principle.