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Book I The Ancient Customs and the Formation of Classical Law
Chapter I The Gens and the City
I Life in the âGensâ
I. The Autonomous âGensâ and the Primitive Customs
THE Roman State was formed by the aggregation of pre-existing associations, the gentes. Identical with the Greek
, the gens was, in the ninth century before our era, the only social institution of the Italian peoples who were not yet established in cities, and to a great extent it dominated the others within the bounds of the city itself. It preceded the State and contributed towards its foundation. From the beginning it was a complex organism because of the number of human beings which it contained, the diversity of their conditions, the religious, economic and legal ideas in accordance with which it moulded their life. Our information on the subject is rare and scattered, but enough has survived to enable us to reconstruct its essential characteristics.1
It appears to have been an association of families united by blood, i.e. who believed themselves to be descended from a common ancestor. The proof of this origin, the ancestor's name, nomen gentilicium, was borne by all the gentiles and served as title for the association: gens Julia, gens Claudia. The gentiles were distinguished from one another by prĆnomina which were few in number and often peculiar to certain gentes; sometimes only two were used alternately from generation to generation. At first the gens differed little from the patriarchal family, but succeeding generations extended the bounds of the family association more or less quickly. It was divided into several branches, each of which added to the nomen gentilicium a surname, cognomen; and in the historical period men were called Claudius Pulcher,ClaudiusCentho,Claudius Nero, Cornelius Scipio, Cornelius Sylla, etc.1 The little group of relatives by the male side, governed in regal fashion by the eldest, was succeeded by an aristocratic society in which the emancipated junior branches formed so many distinct families or domus within the gens. This revolution, which Plato noted in the case of the
, seems to have been effected in the Latin and Sabellian gentes by the time of the foundation of Rome.2
In order to belong to the gens it was necessary not only that one should be a descendant by the male side of the eponymous ancestor, but also that connexion with the gens should never have been broken either in the person of the claimant to admission or in that of any of his ancestors; i.e. that in this unbroken line of freeborn ascendants no case of what will later be described as capitis deminutio can be shown to have occurredâa disqualification which in those days could only be the result of slavery or of sentence of expulsion pronounced by the gens on very serious grounds.3 These free-born members, the more or less distant posterity of the eponymous ancestor who remained the god and centre of his line, were the true gentiles, his genus; but other families lived beneath the sovereignty of the gens.
These client families also bore the nomen gentilicium, as a sign not of origin but of dependence. In contrast with them the gentiles were termed patricii, patroni. The client (from cluere, to listen, obey) was a man placed with his family under the protection of a powerful association which defended him and gave him maintenance. In the absence of an organized State to provide the individual with help and security, the poor, weak and irresolute seek the protection of the strong and daring. It is not granted to all to possess the power, energy and intelligence which daily life in such circumstances requires. The man who has them founds a gens and becomes its eponymous ancestor and god; the man who lacks them becomes his humble and obedient partner. In this partnership, which is profitable to both, the rights of each party will be in inverse ratio to his interest in the association. The client received a piece of land, doles, protection, and an assured existence; the gens gained cultivators, and, when necessary, soldiers. In return for protection and gifts, which they could withdraw, the patrons or patricians exacted certain prestations which custom at length made regular and definite: to help the patron dower his daughters; to pay his ransom in war and that of his children; to accompany him in the field; to avenge him (so long as private justice lasted) or help him compensate his victims or their avengers in order to restore peace; not to marry outside the gens; to render the patron all services included under the name of obsequium.1 In the city these obligations, which moreover were reciprocal, were perpetuated by forbidding patron and client to prosecute each other, to give evidence against each other, or to vote on different sides, and by requiring them to help each other, especially in court, where the patron directed his client's case, and also in the payment of debts, penalties and fines.2 Religious Law, fas, punished the violation of these rules by its anathemas, and it was echoed by the Twelve Tables when they repeated after it: Patronus, si clienti fraudem fecerit, sacer esto;â"Cursed be the patron who has defrauded his client of his protection!"3 By patron we must understand every gentilis, for the bond of clientship was originally formed between the client and the gens.4 It was perpetual and considered to be closer than the bond of agnate relationship, and the passage of centuries was required to break it.
Both patricians and clients owned slaves: prisoners of war, foreigners carried off and sold by land- or sea-pirates, servants born to the house. They were few in number and became a part of the household, being treated with consideration, associated with the domestic cult, and given a place in the family tomb. Enfranchisement gave them and their descendants a place within the gens, whose name they then took, beside the client families; but they were burdened with a special obsequium, clients of free origin being bound by obligations only to the gens, whereas freedmen were further bound by obligations to the domus of their old master.
Every gens was associated with a larger or smaller piece of land. In the first centuries of the Republic a piece of land was still the indispensable appanage of a gens, and when the Sabine Atta Clausus claimed Roman citizenship, he was given an estate on the banks of the Anio for his gens and his five thousand clients.1 The gentes of the conquered cities who were admitted to the patriciate kept their rural estates, agri gentilicii. Being all devoted to the settled life of agriculture, the gentes still clung to their agrarian collectivism, not in obedienc...
