FOOTNOTE:[24]Author's note.Just as the Grecian basileus, so the Aztec military chief was misrepresented as a modern prince. Morgan was the first to submit to historical criticism the reports of the Spaniards who first misapprehended and exaggerated, and later on consciously misrepresented the functions of this office. He showed that the Mexicans were in the middle stage of barbarism, but on a higher plane than the New Mexican Pueblo Indians, and that their constitution, so far as the garbled accounts show, corresponded to this stage: a league of three tribes which had made a number of others tributary and was administered by a federal council and a federal chief of war, whom the Spaniards construed into an "emperor."
[24]Author's note.Just as the Grecian basileus, so the Aztec military chief was misrepresented as a modern prince. Morgan was the first to submit to historical criticism the reports of the Spaniards who first misapprehended and exaggerated, and later on consciously misrepresented the functions of this office. He showed that the Mexicans were in the middle stage of barbarism, but on a higher plane than the New Mexican Pueblo Indians, and that their constitution, so far as the garbled accounts show, corresponded to this stage: a league of three tribes which had made a number of others tributary and was administered by a federal council and a federal chief of war, whom the Spaniards construed into an "emperor."
[24]Author's note.
Just as the Grecian basileus, so the Aztec military chief was misrepresented as a modern prince. Morgan was the first to submit to historical criticism the reports of the Spaniards who first misapprehended and exaggerated, and later on consciously misrepresented the functions of this office. He showed that the Mexicans were in the middle stage of barbarism, but on a higher plane than the New Mexican Pueblo Indians, and that their constitution, so far as the garbled accounts show, corresponded to this stage: a league of three tribes which had made a number of others tributary and was administered by a federal council and a federal chief of war, whom the Spaniards construed into an "emperor."
How the state gradually developed by partly transforming the organs of the gentile constitution, partly replacing them by new organs and finally installing real state authorities; how the place of the nation in arms defending itself through its gentes, phratries and tribes, was taken by an armed public power of coërcion in the hands of these authorities and available against the mass of the people; nowhere can we observe the first act of this drama so well as in ancient Athens. The essential stages of the various transformations are outlined by Morgan, but the analysis of the economic causes producing them is largely added by myself.
In the heroic period, the four tribes of the Athenians were still installed in separate parts of Attica. Even the twelve phratries composing them seem to have had separate seats in the twelve different towns of Cecrops. The constitution was in harmony with the period: a public meeting (agorâ), a council (bûlê) and a basileus.
As far back as we can trace written history we find the land divided up and in the possession of private individuals. For during the last period of the higher stage of barbarism the production of commodities and the resulting trade had well advanced. Grain, wine and oil were staple articles. The sea trade on the Aegean Sea drifted more and more out of the hands of the Phoenicians into those of the Athenians. By the purchase and sale of land, by continued division of labor between agriculture and industry, tradeand navigation, the members of gentes, phratries and tribes very soon intermingled. The districts of the phratry and the tribe received inhabitants who did not belong to these bodies and, therefore, were strangers in their own homes, although they were countrymen. For during times of peace, every phratry and every tribe administered its own affairs without consulting the council of Athens or the basileus. But inhabitants not belonging to the phratry or the tribe could not take part in the administration of these bodies.
Thus the well-regulated functions of the gentile organs became so disarranged that relief was already needed during the heroic period. A constitution attributed to Theseus was introduced. The main feature of this change was the institution of central administration in Athens. A part of the affairs that had so long been conducted autonomously by the tribes was declared collective business and transferred to a general council in Athens. This step of the Athenians went farther than any ever taken by the nations of America. For the simple federation of autonomous tribes was now replaced by the conglomeration of all tribes into one single body. The next result was a common Athenian law, standing above the legal traditions of the tribes and gentes. It bestowed on the citizens of Athens certain privileges and legal protection, even in a territory that did not belong to their tribe. This meant another blow to the gentile constitution; for it opened the way to the admission of citizens who were not members of any Attic tribe and stood entirely outside of the Athenian gentile constitution.
A second institution attributed to Theseus was the division of the entire nation into three classes regardless of the gentes, phratries and tribes: eupatrides or nobles, geomoroì or farmers, and demiurgoi ortradesmen. The exclusive privilege of the nobles to fill the offices was included in this innovation. Apart from this privilege the new division remained ineffective, as it did not create any legal distinctions between the classes. But it is important, because it shows us the new social elements that had developed in secret. It shows that the habitual holding of gentile offices by certain families had already developed into a practically uncontested privilege; that these families, already powerful through their wealth, began to combine outside of their gentes into a privileged class; and that the just arising state sanctioned this assumption. It shows furthermore that the division of labor between farmers and tradesmen had grown strong enough to contest the supremacy of the old gentile and tribal division of society. And finally it proclaims the irreconcilable opposition of gentile society to the state. The first attempt to form a state broke up the gentes by dividing their members against one another and opposing a privileged class to a class of disowned belonging to two different branches of production.
The ensuing political history of Athens up to the time of Solon is only incompletely known. The office of basileus became obsolete. Archons elected from the ranks of the nobility occupied the leading position in the state. The power of the nobility increased continually, until it became unbearable about the year 600 before Christ. The principal means for stifling the liberty of the people were—money and usury. The main seat of the nobility was in and around Athens. There the sea trade and now and then a little convenient piracy enriched them and concentrated the money into their hands. From this point the gradually arising money power penetrated like corrugating acid into the traditional modes of rural existence founded on natural economy. The gentile constitution is absolutely irreconcilable with money rule. Theruin of the Attic farmers coïncided with the loosening of the old gentile bonds that protected them. The debtor's receipt and the pawning of the property—for the mortgage was also invented by the Athenians—cared neither for the gens nor for the phratry. But the old gentile constitution knew nothing of money, advance and debt. Hence the ever more virulently spreading money rule of the nobility developed a new legal custom, securing the creditor against the debtor and sanctioning the exploitation of the small farmer by the wealthy. All the rural districts of Attica were crowded with mortgage columns bearing the legend that the lot on which they stood was mortgaged to such and such for so much. The fields that were not so designated had for the most part been sold on account of overdue mortgages or interest and transferred to the aristocratic usurers. The farmer could thank his stars, if he was granted permission to live as a tenant on one-sixth of the product of his labor and to pay five-sixths to his new master in the form of rent. Worse still, if the sale of the lot did not bring sufficient returns to cover the debt, or if such a debt had been contracted without a lien, then the debtor had to sell his children into slavery abroad in order to satisfy the claim of the creditor. The sale of the children by the father—that was the first fruit of paternal law and monogamy! And if that did not satisfy the bloodsuckers, they could sell the debtor himself into slavery. Such was the pleasant dawn of civilization among the people of Attica.
Formerly, while the condition of the people was in keeping with gentile traditions, a similar downfall would have been impossible. But here it had come about, nobody knew how. Let us return for a moment to the Iroquois. The state of things that had imposed itself on the Athenians almost without their doing, so to say, and assuredly against their will, wasinconceivable among the Indians. There the ever unchanging mode of production could at no time generate such conflicts as a distinction between rich and poor, exploiters and exploited, caused by external conditions. The Iroquois were far from controlling the forces of nature, but within the limits drawn for them by nature they dominated their own production. Apart from a failure of the crops in their little gardens, the exhaustion of the fish supply in their lakes and rivers or of the game stock in their forests, they always knew what would be the outcome of their mode of gaining a living. A more or less abundant supply of food, that would come of it. But the outcome could never be any unpremeditated social upheavals, breaking of gentile bonds or division of the gentiles against one another by conflicting class interests. Production was carried on in the most limited manner; but—the producers controlled their own product. This immense advantage of barbarian production was lost in the transition to civilization. To win it back on the basis of man's present gigantic control of nature and of the free association rendered possible by it, that will be the task of the next generations.
Not so among the Greeks. The advent of private property in herds of cattle and articles of luxury led to an exchange between individuals, to a transformation of products into commodities. Here is the root of the entire revolution that followed. When the producers did no longer consume their own product, but released their hold of it in exchange for another's product, then they lost the control of it. They did not know any more what became of it. There was a possibility that the product might be turned against the producers for the purpose of exploiting and oppressing them. No society can, therefore, retain for any length of time the control of its ownproduction and of the social effects of the mode of production, unless it abolishes exchange between individuals.
How rapidly after the establishment of individual exchange and after the transformation of products into commodities the product manifests its rule over the producer, the Athenians were soon to learn. Along with the production of marketable commodities came the tilling of the soil by individual cultivators for their own account, soon followed by individual ownership of the land. Along came also the money, that general commodity for which all others could be exchanged. But when men invented money they little suspected that they were creating a new social power, that one universal power before which the whole of society must bow down. It was this new power, suddenly sprung into existence without the forethought and intention of its own creators, that vented its rule on the Athenians with the full brutality of youth.
What was to be done? The old gentile organization had not only proved impotent against the triumphant march of money: it was also absolutely incapable of containing within its confines any such thing as money, creditors, debtors and forcible collection of debts. But the new social power was upon them and neither pious wishes nor a longing for the return of the good old times could drive money and usury from the face of the earth. Moreover, gentile constitution had suffered a number of minor defeats. The indiscriminate mingling of the gentiles and phrators in the whole of Attica, and especially in Athens, had assumed larger proportions from generation to generation. Still even now a citizen of Athens was not allowed to sell his residence outside of his gens, although he could do so with plots of land. The division of labor between the different branches of production—agriculture, trades, numberless specialties within the trades,commerce, navigation, etc.—had developed more fully with the progress of industry and traffic. The population was now divided according to occupations into rather well defined groups, everyone of which had separate interests not guarded by the gens or phratry and therefore necessitating the creation of new offices. The number of slaves had increased considerably and must have surpassed by far that of the free Athenians even at this early stage. Gentile society originally knew no slavery and was, therefore, ignorant of any means to hold this mass of bondsmen in check. And finally, commerce had attracted a great many strangers who settled in Athens for the sake of the easier living it afforded. According to the old constitution, the strangers had neither civil rights nor the protection of the law. Though tacitly admitted by tradition, they remained a disturbing and foreign element.
In short, gentile constitution approached its doom. Society was daily growing more and more beyond it. It was powerless to stop or allay even the most distressing evils that had grown under its very eyes. But in the meantime the state had secretly developed. The new groups formed by division of labor, first between city and country, then between the various branches of city industry, had created new organs for the care of their interests. Public offices of every description had been instituted. And above all the young state needed its own fighting forces. Among the seafaring Athenians this had to be at first only a navy, for occasional short expeditions and the protection of the merchant vessels. At some uncertain time before Solon, the naukrariai were instituted, little territorial districts, twelve in each tribe. Every naukraria had to furnish, equip and man a war vessel and to detail two horsemen. This arrangement was a twofold attack on the gentile constitution. In the first place it createda public power of coërcion that did no longer absolutely coincide with the entirety of the armed nation. In the second place it was the first division of the people for public purposes, not by groups of kinship, but by local residence. We shall soon see what that signified.
As the gentile constitution could not come to the assistance of the exploited people, they could look only to the rising state. And the state brought help in the form of the constitution of Solon. At the same time it added to its own strength at the expense of the old constitution. Solon opened the series of so-called political revolutions by an infringement on private property. We pass over the means by which this reform was accomplished in the year 594 B. C. or thereabout. Ever since, all revolutions have been revolutions for the protection of one kind of property against another kind of property. They cannot protect one kind without violating another. In the great French revolution the feudal property was sacrificed for the sake of saving bourgeois property. In Solon's revolution, the property of the creditors had to make concessions to the property of the debtors. The debts were simply declared illegal. We are not acquainted with the accurate details, but Solon boasts in his poëms that he removed the mortgage columns from the indented lots and enabled all who had fled or been sold abroad for debts to return home. This was only feasible by an open violation of private property. And indeed, all so-called political revolutions were started for the protection of one kind of property by the confiscation, also called theft, of another kind of property. It is absolutely true that for more than 2,500 years private property could only be protected by the violation of private property.
But now a way had to be found to avoid the return of such an enslavement of the free Athenians. Thiswas first attempted by general measures, e. g., the prohibition of contracts giving the person of the debtor in lien. Furthermore a maximum limit was fixed for the amount of land any one individual could own, in order to keep the craving of the nobility for the land of the farmers within reasonable bounds. Constitutional amendments were next in order. The following deserve special consideration:
The council was increased to four hundred members, one hundred from each tribe. Here, then, the tribe still served as a basis. But this was the only remnant of the old constitution that was transferred to the new body politic. For otherwise Solon divided the citizens into four classes according to their property in land and its yield. Five hundred, three hundred and one hundred and fifty medimnoi of grain (1 medimnos equals 1.16 bushels) were the minimum yields of the first three classes. Whoever had less land or none at all belonged to the fourth class. Only members of the first three classes could hold office; the highest offices were filled by the first class. The fourth class had only the right to speak and vote in the public council. But here all officials were elected, here they had to give account, here all the laws were made, and here the fourth class was in the majority. The aristocratic privileges were partly renewed in the form of privileges of wealth, but the people retained the decisive power. The four classes also formed the basis for the reorganization of the fighting forces. The first two classes furnished the horsemen; the third had to serve as heavy infantry; the fourth was employed as light unarmored infantry and had to man the navy. Probably the last class also received wages in this case.
An entirely new element is thus introduced into the constitution: private property. The rights and duties of the citizens are graduated according to their property in land. Wherever the classification by propertygains ground, there the old groups of blood relationship give way. Gentile constitution has suffered another defeat.
However, the gradation of political rights according to private property was not one of those institutions without which a state cannot exist. It may have been ever so important in the constitutional development of some states. Still a good many others, and the most completely developed at that, had no need of it. Even in Athens it played only a passing role. Since the time of Aristides, all offices were open to all the citizens.
During the next eighty years the Athenian society gradually drifted into the course on which it further developed in the following centuries. The outrageous land speculation of the time before Solon had been fettered, likewise the excessive concentration of property in land. Commerce, trades and artisan handicrafts, which were carried on in an ever larger scale as slave labor increased, became the ruling factors in gaining a living. Public enlightenment advanced. Instead of exploiting their own fellow citizens in the old brutal style, the Athenians now exploited mainly the slaves and the customers outside. Movable property, wealth in money, slaves and ships, increased more and more. But instead of being a simple means for the purchase of land, as in the old stupid times, it had now become an end in itself. The new class of industrial and commercial owners of wealth now waged a victorious competition against the old nobility. The remnants of the old gentile constitution lost their last hold. The gentes, phratries and tribes, the members of which now were dispersed all over Attica and completely intermixed, had thus become unavailable as political groups. A great many citizens of Athens did not belong to any gens. They were immigrants who had been adopted into citizenship, but notinto any of the old groups of kinship. Besides, there was a steadily increasing number of foreign immigrants who were only protected by traditional sufferance.
Meanwhile the struggles of the parties proceeded. The nobility tried to regain their former privileges and for a short time recovered their supremacy, until the revolution of Kleisthenes (509 B. C.) brought their final downfall and completed the ruin of gentile law.
In his new constitution, Kleisthenes ignored the four old tribes founded on the gentes and phratries. Their place was taken by an entirely new organization based on the recently attempted division of the citizens into naukrariai according to residence. No longer was membership in a group of kindred the dominant fact, but simply local residence. Not the nation, but the territory was now divided; the inhabitants became mere political fixtures of the territory.
The whole of Attica was divided into one hundred communal districts, so-called demoi, every one of which was autonomous. The citizens living in a demos (demotoi) elected their official head (demarchos), treasurer and thirty judges with jurisdiction in minor cases. They also received their own temple and divine guardian or heros, whose priest they elected. The control of the demos was in the hands of the council of demotoì. This is, as Morgan correctly remarks, the prototype of the autonomous American township. The modern state in its highest development ended in the same unit with which the rising state began its career in Athens.
Ten of these units (demoi) formed a tribe, which, however, was now designated as local tribe in order to distinguish it from the old sex tribe. The local tribe was not only an autonomous political, but also a military group. It elected the phylarchos or tribal head who commanded the horsemen, the taxiarchoscommanding the infantry and the strategic leader, who was in command of the entire contingent raised in the tribal territory by conscription. The local tribe furthermore furnished, equipped and fully manned five war vessels. It was designated by the name of the Attic hero who was its guardian deity. It elected fifty councilmen into the council of Athens.
Thus we arrive at the Athenian state, governed by a council of five hundred elected by and representing the ten tribes and subject to the vote of the public meeting, where every citizen could enter and vote. Archons and other officials attended to the different departments of administration and justice.
By this new constitution and by the admission of a large number of aliens, partly freed slaves, partly immigrants, the organs of gentile constitution were displaced in public affairs. They became mere private and religious clubs. But their moral influence, the traditional conceptions and views of the old gentile period, survived for a long time and expired only gradually. This was evident in another state institution.
We have seen that an essential mark of the state consists in a public power of coërcion divorced from the mass of the people. Athens possessed at that time only a militia and a navy equipped and manned directly by the people. These afforded protection against external enemies and held the slaves in check, who at that time already made up the large majority of the population. For the citizens, this coërcive power at first only existed in the shape of the police, which is as old as the state. The innocent Frenchmen of the 18th century, therefore, had the habit of speaking not of civilized, but of policed nations (nations policées). The Athenians, then, provided for a police in their new state, a veritable "force" of bowmen on footand horseback. This police force consisted—of slaves. The free Athenian regarded this police duty as so degrading that he preferred being arrested by an armed slave rather than lending himself to such an ignominious service. That was still a sign of the old gentile spirit. The state could not exist without a police, but as yet it was too young and did not command sufficient moral respect to give prestige to an occupation that necessarily appeared ignominious to the old gentiles.
How well this state, now completed in its main outlines, suited the social condition of the Athenians was apparent by the rapid growth of wealth, commerce and industry. The distinction of classes on which the social and political institutions are resting was no longer between nobility and common people, but between slaves and freemen, aliens and citizens. At the time of the greatest prosperity the whole number of free Athenian citizens, women and children included, amounted to about 90,000; the slaves of both sexes numbered 365,000 and the aliens—foreigners and freed slaves—45,000. Per capita of each adult citizen there were, therefore, at least eighteen slaves and more than two aliens. The great number of slaves is explained by the fact that many of them worked together in large factories under supervision. The development of commerce and industry brought about an accumulation and concentration of wealth in a few hands. The mass of the free citizens were impoverished and had to face the choice of either competing with their own labor against slave labor, which was considered ignoble and vile, besides promising little success, or to be ruined. Under the prevailing circumstances they necessarily chose the latter course and being in the majority they ruined the whole Attic state. Not democracy caused the downfall of Athens, as the European glorifiers of princes and lickspittleschoolmasters would have us believe, but slavery ostracizing the labor of the free citizen.
The origin of the state among the Athenians presents a very typical form of state organization. For it took place without any marring external interference or internal obstruction—the usurpation of Pisistratos left no trace of its short duration. It shows the direct rise of a highly developed form of a state, the democratic republic, out of gentile society. And finally, we are sufficiently acquainted with all the essential details of the process.
The legend of the foundation of Rome sets forth that the first colonization was undertaken by a number of Latin gentes (one hundred, so the legend says) united into one tribe. A Sabellian tribe (also said to consist of one hundred gentes) soon followed, and finally a third tribe of various elements, but again numbering one hundred gentes, joined them. The whole tale reveals at the first glance that little more than the gens was borrowed from reality, and that the gens itself was in certain cases only an offshoot of an old mother gens still existing at home. The tribes bear the mark of artificial composition on their foreheads; still they were made up of kindred elements and after the model of the old spontaneous, not artificial tribe. At the same time it is not impossible that a genuine old tribe formed the nucleus of every one of these three tribes. The connecting link, the phratry, contained ten gentes and was called curia. Hence there were thirty curiae.
The Roman gens is recognized as an institution identical with the Grecian gens. The Grecian gens being a continuation of the same social unit, the primordial form of which we found among the American Indians, the same holds naturally good of the Roman gens, and we can be more concise in its treatment.
At least during the most ancient times of the city, the Roman gens had the following constitution:
1. Mutual right of inheritance for gentiles; thewealth remained in the gens. Paternal law being already in force in the Roman the same as in the Grecian gens, the offspring of female lineage were excluded. According to the law of the twelve tablets, the oldest written law of Rome known to us, the natural children had the first title to the estate; in case no natural children existed, the agnati (kin of male lineage) took their place; and last in line came the gentiles. In all cases the property remained in the gens. Here we observe the gradual introduction of new legal provisions, caused by increased wealth and monogamy, into the gentile practice. The originally equal right of inheritance of the gentiles was first limited in practice to the agnati, no doubt at a very remote date, and afterwards to the natural children and their offspring of male lineage. Of course this appears in the reverse order on the twelve tablets.
2. Possession of a common burial ground. The patrician gens Claudia, on immigrating into Rome from Regilli, was assigned to a separate lot of land and received its own burial ground in the city. As late as the time of Augustus, the head of Varus, who had been killed in the Teutoburger Wald, was brought to Rome and interred in the gentilitius tumulus; hence his gens (Quinctilia) still had its own tomb.
3. Common religious rites. These are well-known under the name of sacra gentilitia.
4. Obligation not to intermarry in the gens. It seems that this was never a written law in Rome, but the custom remained. Among the innumerable names of Roman couples preserved for us there is not a single case, where husband and wife had the same gentile name. The law of inheritance proves the same rule. By marrying, a woman loses her agnatic privileges, discards her gens, and neither she nor her children have any title to her father's estate nor to that of his brothers, because otherwise the gens of her fatherwould lose his property. This rule has a meaning only then when the woman is not permitted to marry a gentile.
5. A common piece of land. In primeval days this was always obtained when the tribal territory was first divided. Among the Latin tribes we find the land partly in the possession of the tribe, partly of the gens, and partly of the households that could hardly represent single families at such an early date. Romulus is credited with being the first to assign land to single individuals, about 2.47 acres (two jugera) per head. But later on we still find some land in the hands of the gentes, not to mention the state land, around which turns the whole internal history of the republic.
6. Duty of the gentiles to mutually protect and assist one another. Written history records only remnants of this law. The Roman state from the outset manifested such superior power, that the duty of protection against injury devolved upon it. When Appius Claudius was arrested, his whole gens, including his personal enemies, dressed in mourning. At the time of the second Punic war the gentes united for the purpose of ransoming their captured gentiles. The senate vetoed this.
7. Right to bear the gentile name. This was in force until the time of the emperors. Freed slaves were permitted to assume the gentile name of their former master, but this did not bestow any gentile rights on them.
8. Right of adopting strangers into the gens. This was done by adoption into the family (the same as among the Indians) which brought with it the adoption into the gens.
9. The right to elect and depose chiefs is not mentioned anywhere. But inasmuch as during the first years of Rome's existence all offices were filled by election or nomination, from the king downward, andas the curiae elected also their own priests, we are justified in assuming the same in regard to gentile chiefs (principes)—no matter how well established the rule of choosing the candidates from the same family have been.
Such were the constitutional rights of a Roman gens. With the exception of the completed transition to paternal law, they are the true image of the rights and duties of an Iroquois gens. Here, also, "the Iroquois is still plainly visible."
How confused the ideas of our historians, even the most prominent of them, are when it comes to a discussion of the Roman gens, is shown by the following example: In Mommsen's treatise on the Roman family names of the Republican and Augustinian era (Römische Forschungen, Berlin, 1864, Vol. I.) he writes: "The gentile name was not only borne by all male gentiles including all adopted and wards, except, of course, the slaves, but also by the women.... The tribe (so Mommsen translates gens) is a common organization resulting from a common—actual, assumed or even invented—ancestor and united by common rites, burial grounds and customs of inheritance. All free individuals, hence women also, may and must claim membership in them. But the definition of the gentile name of the married women offers some difficulty. This is indeed obviated, as long as women were not permitted to marry any one but their gentiles. And we have proofs that for a long time the women found it much more difficult to marry outside than inside of the gens. This right of marrying outside, the gentis enuptio, was still bestowed as a personal privilege and reward during the sixth century.... But wherever such outside marriages occurred in primeval times, the woman must have been transferred to the tribe of her husband. Nothing is more certain than that by the old religious marriage womanwas completely adopted into the legal and sacramental group of her husband and divorced from her own. Who does not know that the married woman releases her active and passive right of inheritance in favor of her gentiles, but enters the legal group of her husband, her children and his gentiles? And if her husband adopts her as his child into his family, how can she remain separated from his gens?" (Pages 9-11.)
Here Mommsen asserts that the Roman women belonging to a certain gens were originally free to marry only within their gens; the Roman gens, according to him, was therefore endogamous, not exogamous. This opinion which contradicts the evidence of all other nations, is principally, if not exclusively, founded on a single much disputed passage of Livy (Book xxxix, c. 19). According to this passage, the senate decreed in the year 568 of the city, i. e., 186 B. C., (uti Feceniae Hispallae datió, deminutio, gentis enuptio, tutoris optio idem esset quasi ei vir testamento dedisset; utique ei ingenuo nubere liceret, neu quid ei qui eam duxisset, ob id fraudi ignominiaeve esset)—that Fecenia Hispalla shall have the right to dispose of her property, to diminish it, to marry outside of the gens, to choose a guardian, just as if her (late) husband had conferred this right on her by testament; that she shall be permitted to marry a freeman and that for the man who marries her this shall not constitute a misdemeanor or a shame.
Without a doubt Fecenia, a freed slave, here obtains permission to marry outside of the gens. And equally doubtless the husband here has the right to confer on his wife by testament the right to marry outside of the gens after his death. But outside of which gens?
If a woman had to intermarry in the gens, as Mommsen assumes, then she remained in this gens after her marriage. But in the first place, this assertion of an endogamous gens must be proven. And in the secondplace, if the women had to intermarry in the gens, then the men had to do the same, otherwise there could be no marriage. Then we arrive at the conclusion that the man could bequeath a right to his wife, which he did not have for himself. This is a legal impossibility. Mommsen feels this very well, and hence he supposes: "The marriage outside of the gens most probably required not only the consent of the testator, but of all gentiles." (Page 10, footnote.) This is not only a very daring assertion, but contradicts also the clear wording of the passage. The senate gives her this right as a proxy of her husband; they expressly give her no more and no less than her husband could have given her, but what they do give is an absolute right, independent of all limitations, so that, if she should make use of it, her new husband shall not suffer in consequence. The senate even instructs the present and future consuls and praetors to see that no inconvenience arise to her from the use of this right. Mommsen's supposition is therefore absolutely inadmissible.
Then again: suppose a woman married a man from another gens, but remained in her own gens. According to the passage quoted above, her husband would then have had the right to permit his wife to marry outside of her own gens. That is, he would have had the right to make provisions in regard to the affairs of a gens to which he did not belong at all. The thing is so utterly unreasonable that we need not lose any words about it.
Nothing remains but to assume that the woman in her first marriage wedded a man from another gens and thereby became a member of her husband's gens. Mommsen admits this for such cases. Then the whole matter at once explains itself. The woman, torn away from her old gens by her marriage and adopted into the gentile group of her husband, occupies a peculiarposition in the new gens. She is now a gentile, but not a kin by blood. The manner of her entrance from the outset excludes all prohibition of intermarrying in the gens, into which she has come by marriage. She is adopted into the family relations of the gens and inherits some of the property of her husband when he dies, the property of a gentile. What is more natural than that this property should remain in the gens and that she should be obliged to marry a gentile of her husband and no other? If, however, an exception is to be made, who is so well entitled to authorize her as her first husband who bequeathed his property to her? At the moment when he bequeathes on her a part of his property and simultaneously gives her permission to transfer this property by marriage or as a result of marriage to a strange gens, he still is the owner of this property, hence he literally disposes of his personal property. As for the woman and her relation to the gens of her husband, it is he who by an act of his own free will—the marriage—introduced her into his gens. Therefore it seems quite natural that he should be the proper person to authorize her to leave this gens by another marriage. In short, the matter appears simple and obvious, as soon as we discard the absurd conception of an endogamous Roman gens and accept Morgan's originally exogamous gens.
There is still another view which has probably found the greatest number of advocates. According to them the passage in Livy only means "that freed slave girls (libertae) cannot without special permission, e gente enubere (marry outside of the gens) or undertake any of the steps which, together with capitis deminutio minima[25](the loss of family rights) would lead to atransfer of the liberta to another gens." (Lange, Römische Alterthümer, Berlin, 1856, I, p. 185, where our passage from Livy is explained by a reference to Huschke.) If this view is correct, then the passage proves still less for the relations of free Roman women, and there is so much less ground for speaking of their obligation to intermarry in the gens.
The expression enuptio gentis (marriage outside of the gens) occurs only in this single passage and is not found anywhere else in the entire Roman literature. The word enubere (to marry outside) is found only three times likewise in Livy, and not in reference to the gens. The phantastic idea that Roman women had to intermarry in the gens owes its existence only to this single passage. But it cannot be maintained. For either the passage refers to special restrictions for freed slave women, in which case it proves nothing for free women (ingenuae). Or it applies also to free women, in which case it rather proves that the women as a rule married outside of the gens and were transferred by their marriage to their husbands' gens. This would be a point for Morgan against Mommsen.
Almost three hundred years after the foundation of Rome the gentile bonds were still so strong that a patrician gens, the Fabians, could obtain permission from the senate to undertake all by itself a war expedition against the neighboring town of Veii. Three hundred and six Fabians are said to have marchedand to have been killed from ambush. Only one boy was left behind to propagate the gens.
Ten gentes, we said, formed a phratry, named curia. It was endowed with more important functions than the Grecian phratry. Every curia had its own religious rites, sacred possessions and priests. The priests of one curia in a body formed one of the Roman clerical collegiums. Ten curiae formed a tribe which probably had originally its own elected chief—leader in war and high priest—like the rest of the Latin tribes. The three tribes together formed the populus Romanus, the Roman people.
Hence nobody could belong to the Roman people, unless he was a member of a Roman gens, and thus a member of a curia and tribe. The first constitution of the Roman people was as follows. Public affairs were conducted by the Senate composed, as Niebuhr was the first to state correctly, of the chiefs of the three hundred gentes. Because they were the elders of the gentes they were called patres, fathers, and as a body senatus, council of elders, from senex, old. Here also the customary choice of men from the same family of the gens brought to life the first hereditary nobility. These families were called patricians and claimed the exclusive right to the seats in the senate and to all other offices. The fact that in the course of time the people admitted this claim so that it became an actual privilege is confirmed by the legendary report that Romulus bestowed the rank of patrician and its privileges on the first senators. The senate, like the Athenian boulê, had to make the final decision in many affairs and to undertake the preliminary discussion of more important matters, especially of new laws. These were settled by the public meeting, the so-called comitia curiata (assembly of curiae.) The people met in curiae, probably grouped by gentes, and every one of the thirty curiae had one vote. Theassembly of curiae adopted or rejected all laws, elected all higher officials including the rex (so-called king), declared war (but the senate concluded peace), and decided as a supreme court, on appeal, all cases involving capital punishment of Roman citizens. By the side of the senate and the public meeting stood the rex, corresponding to the Grecian basileus, and by no means, such an almost absolute king as Mommsen would have it.[26]The rex was also a military leader, a high priest and a chairman of certain courts. He had no other functions, nor any power over life, liberty and property of the citizens, except such as resulted from his disciplinary power as military leader or from his executive power as president of a court. The office of rex was not hereditary. On the contrary, he was elected, probably on the suggestion of his predecessor, by the assembly of curiae and then solemnly invested by a second assembly. That he could also be deposed is proved by the fate of Tarquinius Superbus.
As the Greeks at the time of the heroes, so the Romans at the time of the so-called kings lived in a military democracy based on and developed from a constitution of gentes, phratries and tribes. What though the curiae and tribes were partly artificial formations, they were moulded after the genuine and spontaneous models of a society from which they originated and that still surrounded them on all sides.And though the sturdy patrician nobility had already gained ground, though the reges attempted gradually to enlarge the scope of their functions—all this does not change the elementary and fundamental character of the constitution, and this alone is essential.
Meantime the population of the city of Rome and of the Roman territory, enlarged by conquest, increased partly by immigration, partly through the inhabitants of the annexed districts, Latins most of them. All these new members of the state (we disregard here the clients) stood outside of the old gentes, curiae and tribes and so did not form a part of the populus Romanus, the Roman people proper. They were personally free, could own land, had to pay taxes and were subject to military service. But they were not eligible to office and could neither take part in the assembly of curiae nor in the distribution of conquered state lands. They made up the mass of people excluded from all public rights, the plebs. By their continually growing numbers, their military training and armament they became a threat for the old populus who now closed their ranks hermetically against all new elements. The land seems to have been about evenly divided between populus and plebs, while the mercantile and industrial wealth, though as yet not very considerable, may have been mainly in the hands of the plebs.
In view of the utter darkness that enwraps the whole legendary origin of Rome's historical beginning—a darkness that was rendered still more intense by the rationalistic and overofficious interpretations and reports of the juristically trained authors that wrote on the subject—it is impossible to make any definite statements about the time, the course and the motive of the revolution that put an end to the old gentile constitution. We are certain only that the causesarose out of the fights between the plebs and the populus.
The new constitution, attributed to rex Servius Tullius and following the Grecian model, more especially that of Solon, created a new public assembly including or excluding all the members of populus and plebs according to whether they rendered military service or not. The whole population, subject to enlistment, was divided into six classes according to wealth. The lowest limitis in the five highest classes were: I., 100,000 ass; II., 75,000; III., 50,000; IV., 25,000; V., 11,000; which according to Dureau de la Malle is equal to about $3,155, $2,333, $1,555, $800, and $388. The sixth class, the proletarians, consisted of those who possessed less and were exempt from military service and taxes. In this new assembly of centuriae (comitia centuriata) the citizens formed ranks after the manner of soldiers, in companies of one hundred (centuria), and every centuria had one vote. Now the first class placed 80 centuriae in the field; the second 22, the third 20, the fourth 22, the fifth 30 and the sixth, for propriety's sake, one. To this were added 18 centuriae of horsemen composed of the most wealthy. Hence, there were 193 centuriae, giving a lowest majority vote of 97. Now the horsemen and the first class alone had together 98 votes. Being in the majority, they had only to agree, and they could pass any resolution without asking the consent of the other classes.
This new assembly of centuriae assumed all the political rights of the former assembly of curiae, a few nominal privileges excepted. The curiae and the gentes composing them now were degraded to mere private and religious congregations, analogous to their Attic prototypes, and as such they vegetated on for a long time. But the assembly of curiae soon became obsolete. In order to drive also the three old tribes outof existence, a system of four local tribes was introduced. Every tribe was assigned to one quarter of the city and received certain political rights.
Thus the old social order of blood kinship was destroyed also in Rome even before the abolition of the so-called royalty. A new constitution, founded on territorial division and difference of wealth took its place and virtually created the state. The public power of coërcion consisted here of citizens liable to military duty, to be used against the slaves and the so-called proletarians who were excluded from military service and general armament.
After the expulsion of the last rex, Tarquinius Superbus, who had really usurped royal power, the new constitution was further improved by the institution of two military leaders (consuls) with equal powers, analogous to the custom of the Iroquois. The whole history of the Roman republic moves inside of this constitution: the struggles between patricians and plebs for admission to office and participation in the allotment of state lands, the merging of the patrician nobility in the new class of large property and money owners; the gradual absorption by the latter of all the land of the small holders who had been ruined by military service; the cultivation of these enormous new tracts by slaves; the resulting depopulation of Italy which not only opened the doors to the imperial tyrants, but also to their successors, the German barbarians.