VIII. THE GRECIAN GENS…

VIII. THE GRECIAN GENS

EARLY CONDITION OF GRECIAN TRIBES.—ORGANIZED INTO GENTES.—CHANGES IN THE CHARACTER OF THE GENS.—NECESSITY FOR A POLITICAL SYSTEM.—PROBLEM TO BE SOLVED.—THE FORMATION OF A STATE.—GROTE’S DESCRIPTION OF THE GRECIAN GENTES.—OF THEIR PHRATRIES AND TRIBES.—ATTRIBUTES OF THE GENS.—SIMILAR TO THOSE OF THE IROQUOIS GENTES.—THE OFFICE OF CHIEF OF THE GENS.—WHETHER ELECTIVE OR HEREDITARY.—THE GENS THE BASIS OF THE SOCIAL SYSTEM.—ANTIQUITY OF THE GENTILE LINEAGE.—INHERITANCE OF PROPERTY.—ARCHAIC AND FINAL RULE.—RELATIONSHIPS BETWEEN THE MEMBERS OF A GENS.—THE GENS THE CENTRE OF SOCIAL AND RELIGIOUS INFLUENCE.

Civilization may be said to have commenced among the Asiatic Greeks with the composition of the Homeric poems about 850 B. C.; and among the European Greeks about a century later with the composition of the Hesiodic poems. Anterior to these epochs, there was a period of several thousand years during which the Hellenic tribes were advancing through the Later Period of barbarism, and preparing for their entrance upon a civilized career. Their most ancient traditions find them already established in the Grecian peninsula, upon the eastern border of the Mediterranean, and upon the intermediate and adjacent islands. An older branch of the same stock, of which the Pelasgians were the chief representatives, had preceded them in the occupation of the greater part of these areas, and were in time either Hellenized by them, or forced into emigration. The anterior condition of the Hellenic tribes and of their predecessors, must be deduced from the arts and inventions which they brought down from the previous period, from the state of development of their language, from their traditions and from their social institutions, which severally survived into the period of civilization. Our discussion will be restricted, in the main, to the last class of facts.

Pelasgians and Hellenes alike were organized in gentes, phratries[234] and tribes; and the latter united by coalescence into nations. In some cases the organic series was not complete. Whether in tribes or nations their government rested upon the gens as the unit of organization, and resulted in a gentile society or a people, as distinguished from a political society or a state. The instrument of government was a council of chiefs, with the co-operation of an agora or assembly of the people, and of a basileus or military commander. The people were free, and their institutions democratical. Under the influence of advancing ideas and wants the gens had passed out of its archaic into its ultimate form. Modifications had been forced upon it by the irresistible demands of an improving society; but, notwithstanding the concessions made, the failure of the gentes to meet these wants was constantly becoming more apparent. The changes were limited, in the main, to three particulars: firstly, descent was changed to the male line; secondly, intermarriage in the gens was permitted in the case of female orphans and heiresses; and thirdly, children had gained an exclusive inheritance of their father’s property. An attempt will elsewhere be made to trace these changes, briefly, and the causes by which they were produced.

The Hellenes in general were in fragmentary tribes, presenting the same characteristics in their form of government as the barbarous tribes in general, when organized in gentes and in the same stage of advancement. Their condition was precisely such as might have been predicted would exist under gentile institutions, and therefore presents nothing remarkable.

When Grecian society came for the first time under historical observation, about the first Olympiad (776 B. C.) and down to the legislation of Cleisthenes (509 B. C.), it was engaged upon the solution of a great problem. It was no less than a fundamental change in the plan of government, involving a great modification of institutions. The people were seeking to transfer themselves out of gentile society, in which they had lived from time immemorial, into political society based upon territory and upon property, which had become essential to a career of civilization. In fine, they were striving to establish a state, the first in the experience of the Aryan family, and to place it upon a territorial foundation, such as the state has occupied from that time to the present. Ancient society rested upon an organization of persons, and was governed through the relations of persons to a gens and tribe; but the Grecian tribes were outgrowing this old plan of government, and began to feel the necessity of a political system. To accomplish this result it was only necessary to invent a deme or township, circumscribed with boundaries, to christen it with a name, and organize the people therein as a body politic. The township, with the fixed property it contained, and with the people who inhabited it for the time being, was to become the unit of organization in the new plan of government. Thereafter the gentilis, changed into a citizen, would be dealt with by the state through his territorial relations, and not through his personal relations to a gens. He would be enrolled in the deme of his residence, which enrollment was the evidence of his citizenship; would vote and be taxed in his deme; and from it be called into the military service. Although apparently a simple idea, it required centuries of time and a complete revolution of pre-existing conceptions of government to accomplish the result. The gens, which had so long been the unit of a social system, had proved inadequate, as before suggested, to meet the requirements of an advancing society. But to set this organization aside, together with the phratry and tribe, and substitute a number of fixed areas, each with its community of citizens, was, in the nature of the case, a measure of extreme difficulty. The relations of the individual to his gens, which were personal, had to be transferred to the township and become territorial; the demarch of the township taking, in some sense, the place of the chief of the gens. A township with its fixed property would be permanent, and the people therein sufficiently so; while the gens was a fluctuating aggregate of persons, more or less scattered, and now growing incapable of permanent establishment in a local circumscription. Anterior to experience, a township, as the unit of a political system, was abstruse enough to tax the Greeks and Romans to the depths of their capacities before the conception was formed and set in practical operation. Property was the new element that had been gradually remoulding Grecian institutions to prepare the way for political society, of which it was to be the mainspring as well as the foundation. It was no easy task to accomplish such a fundamental change, however simple and obvious it may now seem; because all the previous experience of the Grecian tribes had been identified with the gentes whose powers were to be surrendered to the new political bodies.

Several centuries elapsed, after the first attempts were made to found the new political system, before the problem was solved. After experience had demonstrated that the gentes were incapable of forming the basis of a state, several distinct schemes of legislation were tried in the various Grecian communities, who copied more or less each other’s experiments, all tending to the same result. Among the Athenians, from whose experience the chief illustrations will be drawn, may be mentioned the legislation of Theseus, on the authority of tradition; that of Draco (624 B. C.); that of Solon (594 B. C.); and that of Cleisthenes (509 B. C.), the last three of which were within the historical period. The development of municipal life and institutions, the aggregation of wealth in walled cities, and the great changes in the mode of life thereby produced, prepared the way for the overthrow of gentile society, and for the establishment of political society in its place.

Before attempting to trace the transition from gentile into political society, with which the closing history of the gentes is identified, the Grecian gens and its attributes will be first considered.

Athenian institutions are typical of Grecian institutions in general, in whatever relates to the constitution of the gens and tribe, down to the end of ancient society among them. At the commencement of the historical period, the Ionians of Attica were subdivided, as is well known, into four tribes (Geleontes, Hopletes, Aegicores, and Argades), speaking the same dialect, and occupying a common territory. They had coalesced into a nation as distinguished from a confederacy of tribes; but such a confederacy had probably existed in anterior times.[235] Each Attic tribe was composed of three phratries, and each phratry of thirty gentes, making an aggregate of twelve phratries, and of three hundred and sixty gentes in the four tribes. Such is the general form of the statement, the fact being constant with respect to the number of tribes, and the number of phratries in each, but liable to variation in the number of gentes in each phratry. In like manner the Dorians were generally found in three tribes (Hylleis, Pamphyli, and Dymanes), although forming a number of nationalities; as at Sparta, Argos, Sicyon, Corinth, Epidaurus and Troezen; and beyond the Peloponnesus at Megara, and elsewhere. One or more non-Dorian tribes were found in some cases united with them, as at Corinth, Sicyon and Argos.

In all cases the Grecian tribe presupposes the gentes, the bond of kin and of dialect forming the basis upon which they united in a tribe; but the tribe did not presuppose the phratry, which, as an intermediate organization, although very common among all these tribes, was liable to be intermitted. At Sparta, there were subdivisions of the tribes called obês (ὠβαί), each tribe containing ten, which were analogous to phratries; but concerning the functions of these organizations some uncertainty prevails.[236]

The Athenian gentes will now be considered as they appeared in their ultimate form and in full vitality; but with the elements of an incipient civilization arrayed against them, before which they were yielding step by step, and by which they were to be overthrown with the social system they created. In some respects it is the most interesting portion of the history of this remarkable organization, which had brought human society out of savagery, and carried it through barbarism into the early stages of civilization.

The social system of the Athenians exhibits the following series: first, the gens (γένος) founded upon kin; second, the phratry (φράτρα and φρατρία), a brotherhood of gentes derived by segmentation, probably, from an original gens; third, the tribe (φῦλον, later φυλὴ), composed of several phratries, the members of which spoke the same dialect; and fourth, a people or nation, composed of several tribes united by coalescence into one gentile society, and occupying the same territory. These integral and ascending organizations exhausted their social system under the gentes, excepting the confederacy of tribes occupying independent territories, which, although it occurred in some instances in the early period and sprang naturally out of gentile institutions, led to no important results. It is likely that the four Athenian tribes confederated before they coalesced, the last occurring after they had collected in one territory under pressure from other tribes. If true of them, it would be equally true of the Dorian and other tribes. When such tribes coalesced into a nation, there was no term in the language to express the result, beyond a national name. The Romans, under very similar institutions, styled themselves the Populus Romanus, which expressed the fact exactly. They were then simply a people, and nothing more; which was all that could result from an aggregation of gentes, curiæ and tribes. The four Athenian tribes formed a society or people, which became completely autonomous in the legendary period under the name of the Athenians. Throughout the early Grecian communities, the gens phratry and tribe were constant phenomena of their social systems, with the occasional absence of the phratry.

Mr. Grote has collected the principal facts with respect to the Grecian gentes with such critical ability that they cannot be presented in a more authoritative manner than in his own language, which will be quoted where he treats the subject generally. After commenting upon the tribal divisions of the Greeks, he proceeds as follows: “But the Phratries and Gentes are a distribution completely different from this. They seem aggregations of small primitive unities into larger; they are independent of, and do not presuppose, the tribe; they arise separately and spontaneously, without preconcerted uniformity, and without reference to a common political purpose; the legislator finds them pre-existing, and adapts or modifies them to answer some national scheme. We must distinguish the general fact of the classification, and the successive subordination in the scale, of the families to the gens, of the gentes to the phratry, and of the phratries to the tribe—from the precise numerical symmetry with which this subordination is invested, as we read it,—thirty families to a gens, thirty gentes to a phratry, three phratries to each tribe. If such nice equality of numbers could ever have been procured, by legislative constraint, operating upon pre-existent natural elements, the proportions could not have been permanently maintained. But we may reasonably doubt whether it did ever so exist.... That every phratry contained an equal number of gentes, and every gens an equal number of families, is a supposition hardly admissible without better evidence than we possess. But apart from this questionable precision of numerical scale, the Phratries and Gentes themselves were real, ancient, and durable associations among the Athenian people, highly important to be understood. The basis of the whole was the house, hearth, or family,—a number of which, greater or less, composed the Gens or Genos. This gens was therefore a clan, sept, or enlarged, and partly factitious, brotherhood, bound together by,—1. Common religious ceremonies, and exclusive privilege of priesthood, in honor of the same god, supposed to be the primitive ancestor, and characterized by a special surname. 2. By a common burial place.[237] 3. By mutual rights of succession to property. 4. By reciprocal obligations of help, defense, and redress of injuries. 5. By mutual right and obligation to intermarry in certain determinate cases, especially where there was an orphan daughter or heiress. 6. By possession, in some cases, at least, of common property, an archon and treasurer of their own. Such were the rights and obligations characterizing the gentile union. The phratric union, binding together several gentes, was less intimate, but still included some mutual rights and obligations of an analogous character; especially a communion of particular sacred rites, and mutual privileges of prosecution in the event of a phrator being slain. Each phratry was considered as belonging to one of the four tribes, and all the phratries of the same tribe enjoyed a certain periodical communion of sacred rites under the presidency of a magistrate called the Phylo-Basileus or tribe-king selected from the Eupatrids.”[238]

The similarities between the Grecian and the Iroquois gens will at once be recognized. Differences in characteristics will also be perceived, growing out of the more advanced condition of Grecian society, and a fuller development of their religious system. It will not be necessary to verify the existence of the several attributes of the gens named by Mr. Grote, as the proof is plain in the classical authorities. There were other characteristics which doubtless pertained to the Grecian gens, although it may be difficult to establish the existence of all of them; such as: 7. The limitation of descent to the male line; 8. The prohibition of intermarriage in the gens excepting in the case of heiresses; 9. The right of adopting strangers into the gens; and 10. The right of electing and deposing its chiefs.

The rights, privileges and obligations of the members of the Grecian gens may be recapitulated, with the additions named, as follows:

I. Common religious rites.

II. A common burial place.

III. _Mutual rights of succession to property of deceased members._

IV. _Reciprocal obligations of help, defense and redress of injuries._

V. _The right to intermarry in the gens in the cases of orphan daughters and heiresses._

VI. _The possession of common property, an archon, and a treasurer._

VII. The limitation of descent to the male line.

VIII. _The obligation not to marry in the gens except in specified cases._

IX. The right to adopt strangers into the gens.

X. The right to elect and depose its chiefs.

A brief reference to the added characteristics should be made.

7. The limitation of descent to the male line. There is no doubt that such was the rule, because it is proved by their genealogies. I have not been able to find in any Greek author a definition of a gens or of a gentilis that would furnish a sufficient test of the right of a given person to the gentile connection. Cicero, Varro and Festus have defined the Roman gens and gentilis, which were strictly analogous to the Grecian, with sufficient fullness to show that descent was in the male line. From the nature of the gens, descent was either in the female line or the male, and included but a moiety of the descendants of the founder. It is precisely like the family among ourselves. Those who are descended from the males bear the family name, and they constitute a gens in the full sense of the term, but in a state of dispersion, and without any bond of union excepting those nearest in degree. The females lose, with their marriage, the family name, and with their children are transferred to another family. Grote remarks that Aristotle was the “son of the physician Nikomachus who belonged to the gens of the Asklepiads.”[239] Whether Aristotle was of the gens of his father depends upon the further question whether they both derived their descent from Aesculapius, through males exclusively. This is shown by Laertius, who states that “Aristotle was the son of Nikomachus ... and Nikomachus was descended from Nikomachus the son of Machaon, the son of Aesculapius.”[240] Although the higher members of the series may be fabulous, the manner of tracing the descent would show the gens of the person. The statement of Hermann, on the authority of Isaeus, is also to the point. “Every infant was registered in the phratria and clan (γένος) of its father.”[241] Registration in the gens of the father implies that his children were of his gens.

8. The obligation not to marry in the gens excepting in specified cases. This obligation may be deduced from the consequences of marriage. The wife by her marriage lost the religious rites of her gens, and acquired those of her husband’s gens. The rule is stated as so general as to imply that marriage was usually out of the gens. “The virgin who quits her father’s house,” Wachsmuth remarks, “is no longer a sharer of the paternal sacrificial hearth, but enters the religious communion of her husband, and this gave sanctity to the marriage tie.”[242] The fact of her registration is stated by Hermann as follows: “Every newly married woman, herself a citizen, was on this account enrolled in the phratry of her husband.”[243] Special religious rites (sacra gentilicia) were common in the Grecian and Latin gens. Whether the wife forfeited her agnatic rights by her marriage, as among the Romans, I am unable to state. It is not probable that marriage severed all connection with her gens, and the wife doubtless still counted herself of the gens of her father.

The prohibition of intermarriage in the gens was fundamental in the archaic period; and it undoubtedly remained after descent was changed to the male line, with the exception of heiresses and female orphans for whose case special provision was made. Although a tendency to free marriage, beyond certain degrees of consanguinity, would follow the complete establishment of the monogamian family, the rule requiring persons to marry out of their own gens would be apt to remain so long as the gens was the basis of the social system. The special provision in respect to heiresses tends to confirm this supposition. Becker remarks upon this question, that “relationship was, with trifling limitations, no hinderance to marriage, which could take place within all degrees of ἀγχιστεία, or συγγένεια, though naturally not in the γένος itself.”[244]

9. The right to adopt strangers into the gens. This right was practiced at a later day, at least in families; but it was done with public formalities, and was doubtless limited to special cases.[245] Purity of lineage became a matter of high concern in the Attic gentes, interposing no doubt serious obstacles to the use of the right except for weighty reasons.

10. The right to elect and depose its chiefs. This right undoubtedly existed in the Grecian gentes in the early period. Presumptively it was possessed by them while in the Upper Status of barbarism. Each gens had its archon (ἀρχὸς), which was the common name for a chief. Whether the office was elective, for example, in the Homeric period, or was transmitted by hereditary right to the eldest son, is a question. The latter was not the ancient theory of the office; and a change so great and radical, affecting the independence and personal rights of all the members of the gens, requires positive proof to override the presumption against it. Hereditary right to an office, carrying with it authority over, and obligations from, the members of a gens is a very different thing from an office bestowed by a free election, with the reserved power to depose for unworthy behavior. The free spirit of the Athenian gentes down to the time of Solon and Cleisthenes forbids the supposition, as to them, that they had parted with a right so vital to the independence of the members of the gens. I have not been able to find any satisfactory explanation of the tenure of this office. Hereditary succession, if it existed, would indicate a remarkable development of the aristocratical element in ancient society, in derogation of the democratical constitution of the gentes. Moreover, it would be a sign of the commencement, at least, of their decadence. All the members of a gens were free and equal, the rich and the poor enjoying equal rights and privileges, and acknowledging the same in each other. We find liberty, equality and fraternity, written as plainly in the constitution of the Athenian gentes as in those of the Iroquois. Hereditary right to the principal office of the gens is totally inconsistent with the older doctrine of equal rights and privileges.

Whether the higher offices of anax, koiranos, and basileus were transmitted by hereditary right from father to son, or were elective or confirmative by a larger constituency, is also a question. It will be considered elsewhere. The former would indicate the subversion, as the latter the conservation, of gentile institutions. Without decisive evidence to the contrary every presumption is adverse to hereditary right. Some additional light will be gained on this subject when the Roman gentes are considered. A careful re-investigation of the tenure of this office would, not unlikely, modify essentially the received accounts.

It may be considered substantially assured that the Grecian gentes possessed the ten principal attributes named. All save three, namely, descent in the male line, marrying into the gens in the case of heiresses, and the possible transmission of the highest military office by hereditary right, are found with slight variations in the gentes of the Iroquois. It is thus rendered apparent that in the gentes, both the Grecian and the Iroquois tribes possessed the same original institution, the one having the gens in its later, and the other in its archaic form.

Recurring now to the quotation from Mr. Grote, it may be remarked that had he been familiar with the archaic form of the gens, and with the several forms of the family anterior to the monogamian, he would probably have modified essentially some portion of his statement. An exception must be taken to his position that the basis of the social system of the Greeks “was the house, hearth, or family.” The form of the family in the mind of the distinguished historian was evidently the Roman, under the iron-clad rule of a pater familias, to which the Grecian family of the Homeric period approximated in the complete domination of the father over the household. It would have been equally untenable had other and anterior forms of the family been intended. The gens, in its origin, is older than the monogamian family, older than the syndyasmian, and substantially contemporaneous with the punaluan. In no sense was it founded upon either. It does not recognize the existence of the family of any form as a constituent of itself. On the contrary, every family in the archaic as well as in the later period, was partly within and partly without the gens, because husband and wife must belong to different gentes. The explanation is both simple and complete; namely, that the family springs up independently of the gens with entire freedom to advance from a lower into a higher form, while the gens is constant, as well as the unit of the social system. The gens entered entire into the phratry, the phratry entered entire into the tribe, and the tribe entered entire into the nation; but the family could not enter entire into the gens because husband and wife must belong to different gentes.

The question here raised is important, since not only Mr. Grote, but also Niebuhr, Thirlwall, Maine, Mommsen, and many other able and acute investigators have taken the same position with respect to the monogamian family of the patriarchal type as the integer around which society integrated in the Grecian and Roman systems. Nothing whatever was based upon the family in any of its forms, because it was incapable of entering a gens as a whole. The gens was homogeneous and to a great extent permanent in duration, and as such, the natural basis of a social system. A family of the monogamian type might have become individualized and powerful in a gens, and in society at large; but the gens nevertheless did not and could not recognize or depend upon the family as an integer of itself. The same remarks are equally true with respect to the modern family and political society. Although individualized by property rights and privileges, and recognized as a legal entity by statutory enactment, the family is not the unit of the political system. The state recognizes the counties of which it is composed, the county its townships, but the township takes no note of the family; so the nation recognized its tribes, the tribes its phratries, and the phratries its gentes; but the gens took no note of the family. In dealing with the structure of society, organic relations alone are to be considered. The township stands in the same relation to political society that the gens did to gentile society. Each is the unit of a system.

There are a number of valuable observations by Mr. Grote, upon the Grecian gentes, which I desire to incorporate as an exposition of them; although these observations seem to imply that they are no older than the then existing mythology, or hierarchy of the gods from the members of which some of the gentes claimed to have derived their eponymous ancestor. In the light of the facts presented, the gentes are seen to have existed long before this mythology was developed—before Jupiter or Neptune, Mars or Venus were conceived in the human mind.

Mr. Grote proceeds: “Thus stood the primitive religious and social union of the population of Attica in its gradually ascending scale—as distinguished from the political union, probably of later introduction, represented at first by the trittyes and naukraries, and in after times by the ten Kleisthenean tribes, subdivided into trittyes and demes. The religious and family bond of aggregation is the earlier of the two; but the political bond, though beginning later, will be found to acquire constantly increasing influence throughout the greater part of this history. In the former, personal relation is the essential and predominant characteristic—local relation being subordinate: in the latter, property and residence become the chief considerations, and the personal element counts only as measured along with these accompaniments. All these phratric and gentile associations, the larger as well as the smaller, were founded upon the same principles and tendencies of the Grecian mind—a coalescence of the idea of worship with that of ancestry, or of communion in certain special religious rites with communion of blood, real or supposed. The god or hero, to whom the assembled members offered their sacrifices, was conceived as the primitive ancestor to whom they owed their origin; often through a long list of intermediate names, as in the case of the Milesian Hekatæus, so often before referred to. Each family had its own sacred rites and funeral commemorations of ancestors, celebrated by the master of the house, to which none but members of the family were admissible.... The larger associations, called gens, phratry, tribe, were formed by an extension of the same principle—of the family considered as a religious brotherhood, worshiping some common god or hero with an appropriate surname, and recognizing him as their joint ancestor; and the festival of Theoenia, and Apaturia (the first Attic, the second common to all the Ionian race) annually brought together the members of these phratries and gentes for worship, festivity, and maintenance of special sympathies; thus strengthening the larger ties without effacing the smaller.... But the historian must accept as an ultimate fact the earliest state of things which his witnesses make known to him, and in the case now before us, the gentile and phratric unions are matters into the beginning of which we cannot pretend to penetrate.”[246]

“The gentes both at Athens, and in other parts of Greece, bore a patronymic name, the stamp of their believed common paternity.[247] ... But at Athens, at least after the revolution of Kleisthenês, the gentile name was not employed: a man was described by his own single name, followed first by the name of his father, and next by that of the deme to which he belonged,—as Aeschinês son of Atromêtus, a Kothôkid.... The gens constituted a close incorporation, both as to property and as to persons. Until the time of Solon, no man had any power of testamentary disposition. If he died without children, his gennêtes succeeded to his property, and so they continued to do even after Solon, if he died intestate. An orphan girl might be claimed in marriage of right by any member of the gens, the nearest agnates being preferred; if she was poor, and he did not choose to marry her himself, the law of Solon compelled him to provide her with a dowry proportional to his enrolled scale of property, and to give her out in marriage to another.... If a man was murdered, first his near relations, next his gennêtes and phrators, were both allowed and required to prosecute the crime at law; while his fellow demots, or inhabitants of the same deme, did not possess the like right of prosecuting. All that we hear of the most ancient Athenian laws is based upon the gentile and phratric divisions, which are treated throughout as extensions of the family. It is to be observed that this division is completely independent of any property qualification—rich men as well as poor being comprehended in the same gens. Moreover, the different gentes were very unequal in dignity, arising chiefly from the religious ceremonies of which each possessed the hereditary and exclusive administration, and which, being in some cases considered of pre-eminent sanctity in reference to the whole city, were therefore nationalized. Thus the Eumolpidæ and Kêrykes, who supplied the hierophant and superintendent of the mysteries of the Eleusinian Dêmêtêr—and the Butadæ, who furnished the priestess of Athênê Polias, as well as the priest of Poseidôn Erechtheus in the Acropolis—seem to have been reverenced above all the other gentes.”[248]

Mr. Grote speaks of the gens as an extension of the family, and as presupposing its existence; treating the family as primary and the gens as secondary. This view, for the reasons stated, is untenable. The two organizations proceed upon different principles and are independent of each other. The gens embraces a part only of the descendants of a supposed common ancestor, and excludes the remainder; it also embraces a part only of a family, and excludes the remainder. In order to be a constituent of the gens, the family should enter entire within its folds, which was impossible in the archaic period, and constructive only in the later. In the organization of gentile society the gens is primary, forming both the basis and the unit of the system. The family also is primary, and older than the gens; the punaluan and the consanguine families having preceded it in the order of time; but it was not a member of the organic series in ancient society any more than it is in modern.

The gens existed in the Aryan family when the Latin, Grecian and Sanskrit speaking tribes were one people, as is shown by the presence in their dialects of the same term (gens, γένος, and ganas) to express the organization. They derived it from their barbarous ancestors, and more remotely from their savage progenitors. If the Aryan family became differentiated as early as the Middle Period of barbarism, which seems probable, the gens must have been transmitted to them in its archaic form. After that event, and during the long periods of time which elapsed between the separation of these tribes from each other and the commencement of civilization, those changes in the constitution of the gens, which have been noticed hypothetically, must have occurred. It is impossible to conceive of the gens as appearing, for the first time, in any other than its archaic form; consequently the Grecian gens must have been originally in this form. If, then, causes can be found adequate to account for so great a change of descent as that from the female line to the male, the argument will be complete, although in the end it substituted a new body of kindred in the gens in place of the old. The growth of the idea of property, and the rise of monogamy, furnished motives sufficiently powerful to demand and obtain this change in order to bring children into the gens of their father, and into a participation in the inheritance of his estate. Monogamy assured the paternity of children, which was unknown when the gens was instituted, and the exclusion of children from the inheritance was no longer possible. In the face of the new circumstances, the gens would be forced into reconstruction or dissolution. When the gens of the Iroquois, as it appeared in the Lower Status of barbarism, is placed beside the gens of the Grecian tribes as it appeared in the Upper Status, it is impossible not to perceive that they are the same organization, the one in its archaic and the other in its ultimate form. The differences between them are precisely those which would have been forced upon the gens by the exigencies of human progress.

Along with these mutations in the constitution of the gens are found the parallel mutations in the rule of inheritance. Property, always hereditary in the gens, was first hereditary among the gentiles; secondly, hereditary among the agnates, to the exclusion of the remaining gentiles; and now, thirdly, hereditary among the agnates in succession, in the order of their nearness to the decedent, which gave an exclusive inheritance to the children as the nearest agnates. The pertinacity with which the principle was maintained down to the time of Solon, that the property should remain in the gens of the deceased owner, illustrates the vitality of the organization through all these periods. It was this rule which compelled the heiress to marry in her own gens to prevent a transfer of the property by her marriage to another gens. When Solon allowed the owner of property to dispose of it by will, in case he had no children, he made the first inroad upon the property rights of the gens.

How nearly the members of a gens were related, or whether they were related at all, has been made a question. Mr. Grote remarked that “Pollux informs us distinctly that the members of the same gens at Athens were not commonly related by blood,—and even without any express testimony we might have concluded such to be the fact. To what extent the gens, at the unknown epoch of its formation was based upon actual relationship, we have no means of determining, either with regard to the Athenian or the Roman gentes, which were in the main points analogous. Gentilism is a tie by itself; distinct from the family ties, but presupposing their existence and extending them by an artificial analogy, partly founded in religious belief, and partly on positive compact, so as to comprehend strangers in blood. All the members of one gens, or even of one phratry, believed themselves to be sprung, not indeed from the same grandfather or great-grandfather, but from the same divine or heroic ancestor.... And this fundamental belief, into which the Greek mind passed with so much facility, was adopted and converted by positive compact into the gentile and phratric principle of union.... Doubtless Niebuhr, in his valuable discussion of the ancient Roman gentes, is right in supposing that they were not real families, procreated from any common historical ancestor. Still it is not the less true (although he seems to suppose otherwise) that the idea of the gens involved the belief in a common first father, divine or heroic—a genealogy which we may properly call fabulous, but which was consecrated and accredited among the members of the gens itself; and served as one important bond of union between them.... The natural families of course changed from generation to generation, some extending themselves, while others diminished or died out; but the gens received no alterations, except through the procreation, extinction, or subdivision of these component families. Accordingly the relations of the families with the gens were in perpetual course of fluctuation, and the gentile ancestorial genealogy, adapted as it doubtless was to the early condition of the gens, became in process of time partially obsolete and unsuitable. We hear of this genealogy but rarely, because it is only brought before the public in certain cases pre-eminent and venerable. But the humbler gentes had their common rites, and common superhuman ancestor and genealogy, as well as the more celebrated: the scheme and ideal basis was the same in all.”[249]

The several statements of Pollux, Niebuhr and Grote are true in a certain sense, but not absolutely so. The lineage of a gens ran back of the acknowledged ancestor, and therefore the gens of ancient date could not have had a known progenitor; neither could the fact of a blood connection be proved by their system of consanguinity; nevertheless the gentiles not only believed in their common descent, but were justified in so believing. The system of consanguinity which pertained to the gens in its archaic form, and which the Greeks probably once possessed, preserved a knowledge of the relationships of all the members of a gens to each other. This fell into desuetude with the rise of the monogamian family, as I shall endeavor elsewhere to show. The gentile name created a pedigree beside which that of a family was insignificant. It was the function of this name to preserve the fact of the common descent of those who bore it; but the lineage of the gens was so ancient that its members could not prove the actual relationship existing between them, except in a limited number of cases through recent common ancestors. The name itself was the evidence of a common descent, and conclusive, except as it was liable to interruption through the adoption of strangers in blood in the previous history of the gens. The practical denial of all relationship between its members made by Pollux and Niebuhr, which would change the gens into a purely fictitious association, has no ground to rest upon. A large proportion of the number could prove their relationship through descent from common ancestors within the gens, and as to the remainder the gentile name they bore was sufficient evidence of common descent for practical purposes. The Grecian gens was not usually a large body of persons. Thirty families to a gens, not counting the wives of the heads of families, would give, by the common rule of computation, an average of one hundred and twenty persons to the gens.

As the unit of the organic social system, the gens would naturally become the centre of social life and activity. It was organized as a social body, with its archon or chief, and treasurer; having common lands to some extent, a common burial place, and common religious rites. Beside these were the rights, privileges and obligations which the gens conferred and imposed upon all its members. It was in the gens that the religious activity of the Greeks originated, which expanded over the phratries, and culminated in periodical festivals common to all the tribes. This subject has been admirably treated by M. De Coulanges in his recent work on “The Ancient City.”

In order to understand the condition of Grecian society, anterior to the formation of the state, it is necessary to know the constitution and principles of the Grecian gens; for the character of the unit determines the character of its compounds in the ascending series, and can alone furnish the means for their explanation.

IX. THE GRECIAN PHRATRY, TRIBE AND NATION

THE ATHENIAN PHRATRY.—HOW FORMED.—DEFINITION OF DIKÆARCHUS.—OBJECTS CHIEFLY RELIGIOUS.—THE PHRATRIARCH.—THE TRIBE.—COMPOSED OF THREE PHRATRIES.—THE PHYLO-BASILEUS.—THE NATION.—COMPOSED OF FOUR TRIBES.—BOULE, OR COUNCIL OF CHIEFS.—AGORA, OR ASSEMBLY OF THE PEOPLE.—THE BASILEUS.—TENURE OF THE OFFICE.—MILITARY AND PRIESTLY FUNCTIONS.—CIVIL FUNCTIONS NOT SHOWN.—GOVERNMENTS OF THE HEROIC AGE, MILITARY DEMOCRACIES.—ARISTOTLE’S DEFINITION OF A BASILEUS.—LATER ATHENIAN DEMOCRACY.—INHERITED FROM THE GENTES.—ITS POWERFUL INFLUENCE UPON ATHENIAN DEVELOPMENT.

The phratry, as we have seen, was the second stage of organization in the Grecian social system. It consisted of several gentes united for objects, especially religious, which were common to them all. It had a natural foundation in the bond of kin, as the gentes in a phratry were probably subdivisions of an original gens, a knowledge of the fact having been preserved by tradition. “All the contemporary members of the phratry of Hekatæus,” Mr. Grote remarks, “had a common god for their ancestor at the sixteenth degree,”[250] which could not have been asserted unless the several gentes comprised in the phratry of Hekatæus, were supposed to be derived by segmentation from an original gens. This genealogy, although in part fabulous, would be traced according to gentile usages. Dikæarchus supposed that the practice of certain gentes in supplying each other with wives, led to the phratric organization for the performance of common religious rites.

This is a plausible explanation, because such marriages would intermingle the blood of the gentes. On the contrary, gentes formed, in the course of time, by the division of a gens and by subsequent subdivisions, would give to all a common lineage, and form a natural basis for their re-integration in a phratry. As such the phratry would be a natural growth, and as such only can it be explained as a gentile institution. The gentes thus united were brother gentes, and the association itself was a brotherhood as the term imports.

Stephanus of Byzantium has preserved a fragment of Dikæarchus, in which an explanation of the origin of the gens, phratry and tribe is suggested. It is not full enough, with respect to either, to amount to a definition; but it is valuable as a recognition of the three stages of organization in ancient Grecian society. He uses patry (πάτρα) in the place of gens (γένος), as Pindar did in a number of instances, and Homer occasionally. The passage may be rendered: “Patry is one of three forms of social union among the Greeks, according to Dikæarchus, which we call respectively, patry, phratry, and tribe. The patry comes into being when relationship, originally solitary, passes over into the second stage [the relationship of parents with children and children with parents], and derives its eponym from the oldest and chief member of the patry, as Aicidas, Pelopidas.”

“But it came to be called phatria and phratria when certain ones gave their daughters to be married into another patry. For the woman who was given in marriage participated no longer in her paternal sacred rites, but was enrolled in the patry of her husband; so that for the union, formerly subsisting by affection between sisters and brothers, there was established another union based on community of religious rites, which they denominated a phratry; and so that again, while the patry took its rise in the way we have previously mentioned, from the blood relation between parents and children and children and parents, the phratry took its rise from the relationship between brothers.”

“But tribe and tribesmen were so called from the coalescence into communities and nations so called, for each of the coalescing bodies was called a tribe.”[251]

It will be noticed that marriage out of the gens is here recognized as a custom, and that the wife was enrolled in the gens, rather than the phratry, of her husband. Dikæarchus, who was a pupil of Aristotle, lived at a time when the gens existed chiefly as a pedigree of individuals, its powers having been transferred to new political bodies. He derived the origin of the gens from primitive times; but his statement that the phratry originated in the matrimonial practices of the gentes, while true doubtless as to the practice, is but an opinion as to the origin of the organization. Intermarriages, with common religious rites, would cement the phratric union; but a more satisfactory foundation of the phratry may be found in the common lineage of the gentes of which it was composed. It must be remembered that the gentes have a history running back through the three sub-periods of barbarism into the previous period of savagery, antedating the existence even of the Aryan and Semitic families. The phratry has been shown to have appeared among the American aborigines in the Lower Status of barbarism; while the Greeks were familiar with so much only of their former history as pertained to the Upper Status of barbarism.

Mr. Grote does not attempt to define the functions of the phratry, except generally. They were doubtless of a religious character chiefly; but they probably manifested themselves, as among the Iroquois, at the burial of the dead, at public games, at religious festivals, at councils, and at the agoras of the people, where the grouping of chiefs and people would be by phratries rather than by gentes. It would also naturally show itself in the array of the military forces, of which a memorable example is given by Homer in the address of Nestor to Agamemnon.[252] “Separate the troops by tribes and by phratries, Agamemnon, so that phratry may support phratry, and tribes, tribes (κρῖν' ἄνδρας κατὰ φῦλα, κατὰ φρήτρας, Ἀγάμεμνον, ὡς φρήτρη φρήτρηφιν ἀρήγῃ, φῦλα δὲ φύλοις). If thou wilt thus act, and the Greeks obey, thou wilt then ascertain which of the commanders and which of the soldiers is a coward, and which of them may be brave, for they will fight their best.” The number from the same gens in a military force would be too small to be made a basis in the organization of an army; but the larger aggregations of the phratries and tribes would be sufficient. Two things may be inferred from the advice of Nestor: first, that the organization of armies by phratries and tribes had then ceased to be common; and secondly, that in ancient times it had been the usual plan of army organization, a knowledge of which had not then disappeared. We have seen that the Tlascalans and Aztecs, who were in the Middle Status of barbarism, organized and sent out their military bands by phratries which, in their condition, was probably the only method in which a military force could be organized. The ancient German tribes organized their armies for battle on a similar principle.[253] It is interesting to notice how closely shut in the tribes of mankind have been to the theory of their social system.

The obligation of blood revenge, which was turned at a later day into a duty of prosecuting the murderer before the legal tribunals, rested primarily upon the gens of the slain person; but it was also shared in by the phratry, and became a phratric obligation.[254] In the Eumenides of Aeschylus, the Erinnys, after speaking of the slaying of his mother by Orestes, put the question: “What lustral water of his phrators shall await him?”[255] which seems to imply that if the criminal escaped punishment final purification was performed by his phratry instead of his gens. Moreover, the extension of the obligation from the gens to the phratry implies a common lineage of all the gentes in a phratry.

Since the phratry was intermediate between the gens and the tribe, and not invested with governmental functions, it was less fundamental and less important than either of the others; but it was a common, natural and perhaps necessary stage of re-integration between the two. Could an intimate knowledge of the social life of the Greeks in that early period be recovered, the phenomena would centre probably in the phratric organization far more conspicuously than our scanty records lead us to infer. It probably possessed more power and influence than is usually ascribed to it as an organization. Among the Athenians it survived the overthrow of the gentes as the basis of a system, and retained, under the new political system, some control over the registration of citizens, the enrollment of marriages and the prosecution of the murderer of a phrator before the courts.

It is customary to speak of the four Athenian tribes as divided each into three phratries, and of each phratry as divided into thirty gentes; but this is merely for convenience in description. A people under gentile institutions do not divide themselves into symmetrical divisions and subdivisions. The natural process of their formation was the exact reverse of this method; the gentes fell into phratries, and ultimately into tribes, which reunited in a society or a people. Each was a natural growth. That the number of gentes in each Athenian phratry was thirty is a remarkable fact incapable of explanation by natural causes. A motive sufficiently powerful, such as a desire for a symmetrical organization of the phratries and tribes, might lead to a subdivision of gentes by consent until the number was raised to thirty in each of these phratries; and when the number in a tribe was in excess, by the consolidation of kindred gentes until the number was reduced to thirty. A more probable way would be by the admission of alien gentes into phratries needing an increase of number. Having a certain number of tribes, phratries and gentes by natural growth, the reduction of the last two to uniformity in the four tribes could thus have been secured. Once cast in this numerical scale of thirty gentes to a phratry and three phratries to a tribe, the proportion might easily have been maintained for centuries, except perhaps as to the number of gentes in each phratry.

The religious life of the Grecian tribes had its centre and source in the gentes and phratries. It must be supposed that in and through these organizations, was perfected that marvelous polytheistic system, with its hierarchy of gods, its symbols and forms of worship, which impressed so powerfully the mind of the classical world. In no small degree this mythology inspired the great achievements of the legendary and historical periods, and created that enthusiasm which produced the temple and ornamental architecture in which the modern world has taken so much delight. Some of the religious rites, which originated in these social aggregates, were nationalized from the superior sanctity they were supposed to possess; thus showing to what extent the gentes and phratries were nurseries of religion. The events of this extraordinary period, the most eventful in many respects in the history of the Aryan family, are lost, in the main, to history. Legendary genealogies and narratives, myths and fragments of poetry, concluding with the Homeric and Hesiodic poems, make up its literary remains. But their institutions, arts, inventions, mythological system, in a word the substance of civilization which they wrought out and brought with them, were the legacy they contributed to the new society they were destined to found. The history of the period may yet be reconstructed from these various sources of knowledge, reproducing the main features of gentile society as they appeared shortly before the institution of political society.

As the gens had its archon, who officiated as its priest in the religious observances of the gens, so each phratry had its phratriarch (φρατριάρχος), who presided at its meetings, and officiated in the solemnization of its religious rites. “The phratry,” observes M. De Coulanges, “had its assemblies and its tribunals, and could pass decrees. In it, as well as in the family, there was a god, a priesthood, a legal tribunal and a government.”[256] The religious rites of the phratries were an expansion of those of the gentes of which it was composed. It is in these directions that attention should be turned in order to understand the religious life of the Greeks.

Next in the ascending scale of organization was the tribe, consisting of a number of phratries, each composed of gentes. The persons in each phratry were of the same common lineage, and spoke the same dialect. Among the Athenians as before stated each tribe contained three phratries, which gave to each a similar organization. The tribe corresponds with the Latin tribe, and also with those of the American aborigines, an independent dialect for each tribe being necessary to render the analogy with the latter complete. The concentration of such Grecian tribes as had coalesced into a people, in a small area, tended to repress dialectical variation, which a subsequent written language and literature tended still further to arrest each tribe from antecedent habits, however, was more or less localized in a fixed area, through the requirements of a social system resting on personal relations. It seems probable that each tribe had its council of chiefs, supreme in all matters relating to the tribe exclusively. But since the functions and powers of the general council of chiefs, who administered the general affairs of the united tribes, were allowed to fall into obscurity, it would not be expected that those of an inferior and subordinate council would be preserved. If such a council existed, which was doubtless the fact from its necessity under their social system, it would have consisted of the chiefs of the gentes.

When the several phratries of a tribe united in the commemoration of their religious observances it was in their higher organic constitution as a tribe. As such, they were under the presidency, as we find it expressed, of a phylo-basileus, who was the principal chief of the tribe. Whether he acted as their commander in the military service I am unable to state. He possessed priestly functions, always inherent in the office of basileus, and exercised a criminal jurisdiction in cases of murder; whether to try or to prosecute a murderer, I am unable to state. The priestly and judicial functions attached to the office of basileus tend to explain the dignity it acquired in the legendary and heroic periods. But the absence of civil functions, in the strict sense of the term, of the presence of which we have no satisfactory evidence, is sufficient to render the term king, so constantly employed in history as the equivalent of basileus, a misnomer. Among the Athenians we have the tribe-basileus, where the term is used by the Greeks themselves as legitimately as when applied to the general military commander of the four united tribes. When each is described as a king it makes the solecism of four tribes each under a king separately, and the four tribes together under another king. There is a larger amount of fictitious royalty here than the occasion requires. Moreover, when we know that the institutions of the Athenians at the time were essentially democratical it becomes a caricature of Grecian society. It shows the propriety of returning to simple and original language, using the term basileus where the Greeks used it, and rejecting king as a false equivalent. Monarchy is incompatible with gentilism, for the reason that gentile institutions are essentially democratical. Every gens, phratry and tribe was a completely organized self-governing body; and where several tribes coalesced into a nation the resulting government would be constituted in harmony with the principles animating its constituent parts.

The fourth and ultimate stage of organization was the nation united in a gentile society. Where several tribes, as those of the Athenians and the Spartans, coalesced into one people, it enlarged the society, but the aggregate was simply a more complex duplicate of a tribe. The tribes took the same place in the nation which the phratries held in the tribe, and the gentes in the phratry. There was no name for the organism[257] which was simply a society (societas), but in its place a name sprang up for the people or nation. In Homer’s description of the forces gathered against Troy, specific names are given to these nations, where such existed, as Athenians, Ætolians, Locrians; but in other cases they are described by the name of the city or country from which they came. The ultimate fact is thus reached, that the Greeks, prior to the times of Lycurgus and Solon, had but the four stages of social organization (gens, phratry, tribe and nation), which was so nearly universal in ancient society, and which has been shown to exist, in part, in the Status of savagery, and complete in the Lower, in the Middle and in the Upper Status of barbarism, and still subsisting after civilization had commenced. This organic series expresses the extent of the growth of the idea of government among mankind down to the institution of political society. Such was the Grecian social system. It gave a society, made up of a series of aggregates of persons, with whom the government dealt through their personal relations to a gens, phratry or tribe. It was also a gentile society as distinguished from a political society, from which it was fundamentally different and easily distinguishable.

The Athenian nation of the heroic age presents in its government three distinct, and in some sense co-ordinate, departments or powers, namely: first, the council of chiefs (βουλή); second, the agora (ἀγορά), or assembly of the people; and third, the basileus (βασιλεύς), or general military commander. Although municipal and subordinate military offices in large numbers had been created, from the increasing necessities of their condition, the principal powers of the government were held by the three instrumentalities named. I am unable to discuss in an adequate manner the functions and powers of the council, the agora or the basileus, but will content myself with a few suggestions upon subjects grave enough to deserve reinvestigation at the hands of professed Hellenists.

I. The Council of Chiefs. The office of basileus in the Grecian tribes has attracted far more attention than either the council or the agora. As a consequence it has been unduly magnified while the council and the agora have either been depreciated or ignored. We know, however, that the council of chiefs was a constant phenomenon in every Grecian nation from the earliest period to which our knowledge extends down to the institution of political society. Its permanence as a feature of their social system is conclusive evidence that its functions were substantial, and that its powers, at least presumptively, were ultimate and supreme. This presumption arises from what is known of the archaic character and functions of the council of chiefs under gentile institutions, and from its vocation. How it was constituted in the heroic age, and under what tenure the office of chief was held, we are not clearly informed; but it is a reasonable inference that the council was composed of the chiefs of the gentes. Since the number who formed the council was usually less than the number of gentes, a selection must have been made in some way from the body of chiefs. In what manner the selection was made we are not informed. The vocation of the council as a legislative body representing the principal gentes, and its natural growth under the gentile organization, rendered it supreme in the first instance, and makes it probable that it remained so to the end of its existence. The increasing importance of the office of basileus, and the new offices created in their military and municipal affairs with their increase in numbers and in wealth, would change somewhat the relations of the council to public affairs, and perhaps diminish its importance; but it could not be overthrown without a radical change of institutions. It seems probable, therefore, that every office of the government, from the highest to the lowest, remained accountable to the council for their official acts. The council was fundamental in their social system;[258] and the Greeks of the period were free self-governing peoples, under institutions essentially democratical. A single illustration of the existence of the council may be given from Aeschylus, simply to show that in the Greek conception it was always present and ready to act. In The Seven against Thebes, Eteocles is represented in command of the city, and his brother Polynices as one of the seven chiefs who had invested the place. The assault was repelled, but the brothers fell in a personal combat at one of the gates. After this occurrence a herald says: “It is necessary for me to announce the decree and good pleasure of the councilors of the people of this city of Cadmus. It is resolved,”[259] etc. A council which can make and promulgate a decree at any moment, which the people are expected to obey, possesses the supreme powers of government. Aeschylus, although dealing in this case with events in the legendary period, recognizes the council of chiefs as a necessary part of the system of government of every Grecian people. The boulê of ancient Grecian society was the prototype and pattern of the senate under the subsequent political system of the state.

II. The Agora. Although an assembly of the people became established in the legendary period, with a recognized power to adopt or reject public measures submitted by the council, it is not as ancient as the council. The latter came in at the institution of the gentes; but it is doubtful whether the agora existed, with the functions named, back of the Upper Status of barbarism. It has been shown that among the Iroquois, in the Lower Status, the people presented their wishes to the council of chiefs through orators of their own selection, and that a popular influence was felt in the affairs of the confederacy; but an assembly of the people, with the right to adopt or reject public measures, would evince an amount of progress in intelligence and knowledge beyond the Iroquois. When the agora first appears, as represented in Homer, and in the Greek Tragedies, it had the same characteristics which it afterwards maintained in the ecclesia of the Athenians, and in the comitia curiata of the Romans. It was the prerogative of the council of chiefs to mature public measures, and then submit them to the assembly of the people for acceptance or rejection, and their decision was final. The functions of the agora were limited to this single act. It could neither originate measures, nor interfere in the administration of affairs; but nevertheless it was a substantial power, eminently adapted to the protection of their liberties. In the heroic age certainly, and far back in the legendary period, the agora is a constant phenomenon among the Grecian tribes, and, in connection with the council, is conclusive evidence of the democratical constitution of gentile society throughout these periods. A public sentiment, as we have reason to suppose, was created among the people on all important questions, through the exercise of their intelligence, which the council of chiefs found it desirable as well as necessary to consult, both for the public good and for the maintenance of their own authority. After hearing the submitted question discussed, the assembly of the people, which was free to all who desired to speak,[260] made their decision in ancient times usually by a show of hands.[261] Through participation in public affairs, which affected the interests of all, the people were constantly learning the art of self-government, and a portion of them, as the Athenians, were preparing themselves for the full democracy subsequently established by the constitutions of Cleisthenes. The assembly of the people to deliberate upon public questions, not unfrequently derided as a mob by writers who were unable to understand or appreciate the principle of democracy, was the germ of the ecclesia (ἐκκλησία) of the Athenians, and of the lower house of modern legislative bodies.

III. The Basileus. This officer became a conspicuous character in the Grecian society of the heroic age, and was equally prominent in the legendary period. He has been placed by historians in the centre of the system. The name of the office (βασιλεύς) was used by the best Grecian writers to characterize the government, which was styled a basileia (βασιλεία). Modern writers, almost without exception, translate basileus by the term king, and basileia by the term kingdom, without qualification, and as exact equivalents. I wish to call attention to this office of basileus, as it existed in the Grecian tribes, and to question the correctness of this interpretation. There is no similarity whatever between the basileia of the ancient Athenians and the modern kingdom or monarchy; certainly not enough to justify the use of the same term to describe both. Our idea of a kingly government is essentially of a type in which a king, surrounded by a privileged and titled class in the ownership and possession of the lands, rules according to his own will and pleasure by edicts and decrees; claiming an hereditary right to rule, because he cannot allege the consent of the governed. Such governments have been self-imposed through the principle of hereditary right, to which the priesthood have sought to superadd a divine right. The Tudor kings of England and the Bourbon kings of France are illustrations. Constitutional monarchy is a modern development, and essentially different from the basileia of the Greeks. The basileia was neither an absolute nor a constitutional monarchy; neither was it a tyranny or a despotism. The question then is, what was it.

Mr. Grote claims that “the primitive Grecian government is essentially monarchical, reposing on personal feeling and divine right;”[262] and to confirm this view he remarks further, that “the memorable dictum in the Iliad is borne out by all that we hear in actual practice: ‘the rule of many is not a good thing; let us have one ruler only—one king—him to whom Zeus has given the sceptre, with the tutelary sanctions.’”[263] This opinion is not peculiar to Mr. Grote, whose eminence as a historian all delight to recognize; but it has been steadily and generally affirmed by historical writers on Grecian themes, until it has come to be accepted as historical truth. Our views upon Grecian and Roman questions have been moulded by writers accustomed to monarchical government and privileged classes, who were perhaps glad to appeal to the earliest known governments of the Grecian tribes for a sanction of this form of government, as at once natural, essential and primitive.

The true statement, as it seems to an American, is precisely the reverse of Mr. Grote’s; namely, that the primitive Grecian government was essentially democratical, reposing on gentes, phratries and tribes, organized as self-governing bodies, and on the principles of liberty, equality and fraternity. This is borne out by all we know of the gentile organization, which has been shown to rest on principles essentially democratical. The question then is, whether the office of basileus passed in reality from father to son by hereditary right; which, if true, would tend to show a subversion of these principles. We have seen that in the Lower Status of barbarism the office of chief was hereditary in a gens, by which is meant that the vacancy was filled from the members of the gens as often as it occurred. Where descent was in the female line, as among the Iroquois, an own brother was usually selected to succeed the deceased chief, and where descent was in the male line, as among the Ojibwas and Omahas, the oldest son. In the absence of objections to the person such became the rule; but the elective principle remained, which was the essence of self-government. It cannot be claimed, on satisfactory proof, that the oldest son of the basileus took the office, upon the demise of his father, by absolute hereditary right. This is the essential fact; and it requires conclusive proof for its establishment. The fact that the oldest, or one of the sons, usually succeeded, which is admitted, does not establish the fact in question; because by usage he was in the probable line of succession by a free election from a constituency. The presumption, on the face of Grecian institutions, is against succession to the office of basileus by hereditary right; and in favor either of a free election, or of a confirmation of the office by the people through their recognized organizations, as in the case of the Roman rex.[264] With the office of basileus transmitted in the manner last named, the government would remain in the hands of the people. Because without an election or confirmation he could not assume the office; and because further, the power to elect or confirm implies the reserved right to depose.

The illustration of Mr. Grote, drawn from the Iliad, is without significance on the question made. Ulysses, from whose address the quotation is taken, was speaking of the command of an army before a besieged city. He might well say: “All the Greeks cannot by any means rule here. The rule of many is not a good thing. Let us have one koiranos, one basileus, to whom Zeus has given the sceptre, and the divine sanctions in order that he may command us.”[265] Koiranos and basileus are used as equivalents, because both alike signified a general military commander. There was no occasion for Ulysses to discuss or endorse any plan of government; but he had sufficient reasons for advocating obedience to a single commander of the army before a besieged city.

Basileia may be defined as a military democracy, the people being free, and the spirit of the government, which is the essential thing, being democratical. The basileus was their general, holding the highest, the most influential and the most important office known to their social system. For the want of a better term to describe the government, basileia was adopted by Grecian writers, because it carried the idea of a generalship which had then become a conspicuous feature in the government. With the council and the agora both existing with the basileus, if a more special definition of this form of government is required, military democracy expresses it with at least reasonable correctness; while the use of the term kingdom, with the meaning it necessarily conveys, would be a misnomer.

In the heroic age the Grecian tribes were living in walled cities, and were becoming numerous and wealthy through field agriculture, manufacturing industries, and flocks and herds. New offices were required, as well as some degree of separation of their functions; and a new municipal system was growing up apace with their increasing intelligence and necessities. It was also a period of incessant military strife for the possession of the most desirable areas. Along with the increase of property the aristocratic element in society undoubtedly increased, and was the chief cause of those disturbances which prevailed in Athenian society from the time of Theseus to the times of Solon and Cleisthenes. During this period, and until the final abolition of the office some time before the first Olympiad, (776 B. C.) the basileus, from the character of his office and from the state of the times, became more prominent and more powerful than any single person in their previous experience. The functions of a priest and of a judge were attached to or inherent in his office; and he seems to have been ex officio a member of the council of chiefs. It was a great as well as a necessary office, with the powers of a general over the army in the field, and over the garrison in the city, which gave him the means of acquiring influence in civil affairs as well. But it does not appear that he possessed civil functions. Prof. Mason remarks, that “our information respecting the Grecian kings in the more historical age is not ample or minute enough to enable us to draw out a detailed scheme of their functions.”[266] The military and priestly functions of the basileus are tolerably well understood, the judicial imperfectly, and the civil functions cannot properly be said to have existed. The powers of such an office under gentile institutions would gradually become defined by the usage of experience, but with a constant tendency in the basileus to assume new ones dangerous to society. Since the council of chiefs remained as a constituent element of the government, it may be said to have represented the democratic principles of their social system, as well as the gentes, while the basileus soon came to represent the aristocratic principle. It is probable that a perpetual struggle was maintained between the council and the basileus, to hold the latter within the limits of powers the people were willing to concede to the office. Moreover, the abolition of the office by the Athenians makes it probable that they found the office unmanageable, and incompatible with gentile institutions, from the tendency to usurp additional powers.

Among the Spartan tribes the ephoralty was instituted at a very early period to limit the powers of the basileis in consequence of a similar experience. Although the functions of the council in the Homeric and the legendary periods are not accurately known, its constant presence is evidence sufficient that its powers were real, essential and permanent. With the simultaneous existence of the agora, and in the absence of proof of a change of institutions, we are led to the conclusion that the council, under established usages, was supreme over gentes, phratries, tribes and nation, and that the basileus was amenable to this council for his official acts. The freedom of the gentes, of whom the members of the council were representatives, presupposes the independence of the council, as well as its supremacy.

Thucydides refers incidentally to the governments of the traditionary period, as follows: “Now when the Greeks were becoming more powerful, and acquiring possession of property still more than before, many tyrannies were established in the cities, from their revenues becoming greater; whereas before there had been hereditary basileia with specified powers.” (πρότερον δὲ ἦσαν ἐπὶ ῥητοῖς γέρασι πατρικαὶ βασιλεῖαι)[267] The office was hereditary in the sense of perpetual because it was filled as often as a vacancy occurred, but probably hereditary in a gens, the choice being by a free election by his gennêtes, or by nomination possibly by the council, and confirmation of the gentes, as in the case of the rex of the Romans.

Aristotle has given the most satisfactory definition of the basileia and of the basileus of the heroic period of any of the Grecian writers. These then are the four kinds of basileia he remarks: the first is that of the heroic times, which was a government over a free people, with restricted rights in some particulars; for the basileus was their general, their judge and their chief priest. The second, that of the barbarians, which is an hereditary despotic government, regulated by laws; the third is that which they call Aesymnetic, which is an elective tyranny. The fourth is the Lacedaemonian, which is nothing more than an hereditary generalship.[268] Whatever may be said of the last three forms, the first does not answer to the idea of a kingdom of the absolute type, nor to any recognizable form of monarchy. Aristotle enumerates with striking clearness the principal functions of the basileus, neither of which imply civil powers, and all of which are consistent with an office for life, held by an elective tenure. They are also consistent with his entire subordination to the council of chiefs. The “restricted rights,” and the “specified powers” in the definitions of these authors, tend to show that the government had grown into this form in harmony with, as well as under, gentile institutions. The essential element in the definition of Aristotle is the freedom of the people, which in ancient society implies that the people held the powers of the government under their control, that the office of basileus was voluntarily bestowed, and that it could be recalled for sufficient cause. Such a government as that described by Aristotle can be understood as a military democracy, which, as a form of government under free institutions, grew naturally out of the gentile organization when the military spirit was dominant, when wealth and numbers appeared, with habitual life in fortified cities, and before experience had prepared the way for a pure democracy.

Under gentile institutions, with a people composed of gentes, phratries and tribes, each organized as independent self-governing bodies, the people would necessarily be free. The rule of a king by hereditary right and without direct accountability in such a society was simply impossible. The impossibility arises from the fact that gentile institutions are incompatible with a king or with a kingly government. It would require, what I think cannot be furnished, positive proof of absolute hereditary right in the office of basileus, with the presence of civil functions, to overcome the presumption which arises from the structure and principles of ancient Grecian society. An Englishman, under his constitutional monarchy, is as free as an American under the republic, and his rights and liberties are as well protected; but he owes that freedom and protection to a body of written laws, created by legislation and enforced by courts of justice. In ancient Grecian society, usages and customs supplied the place of written laws, and the person depended for his freedom and protection upon the institutions of his social system. His safeguard was pre-eminently in such institutions as the elective tenure of office implies.

The reges of the Romans were, in like manner, military commanders, with priestly functions attached to their office; and this so-called kingly government falls into the same category of a military democracy. The rex, as before stated, was nominated by the senate, and confirmed by the comitia curiata; and the last of the number was deposed. With his deposition the office was abolished, as incompatible with what remained of the democratic principle, after the institution of Roman political society.

The nearest analogues of kingdoms among the Grecian tribes were the tyrannies, which sprang up here and there, in the early period, in different parts of Greece. They were governments imposed by force, and the power claimed was no greater than that of the feudal kings of mediæval times. A transmission of the office from father to son through a few generations in order to superadd hereditary right was needed to complete the analogy. But such governments were so inconsistent with Grecian ideas, and so alien to their democratic institutions, that none of them obtained a permanent footing in Greece. Mr. Grote remarks that “if any energetic man could by audacity or craft break down the constitution and render himself permanent ruler according to his own will and pleasure—even though he might rule well—he could never inspire the people with any sentiment of duty towards him. His sceptre was illegitimate from the beginning, and even the taking of his life, far from being interdicted by that moral feeling which condemned the shedder of blood in other cases, was considered meritorious.”[269] It was not so much the illegitimate sceptre which aroused the hostility of the Greeks, as the antagonism of democratical with monarchical ideas, the former of which were inherited from the gentes.

When the Athenians established the new political system, founded upon territory and upon property, the government was a pure democracy. It was no new theory, or special invention of the Athenian mind, but an old and familiar system, with an antiquity as great as that of the gentes themselves. Democratic ideas had existed in the knowledge and practice of their forefathers from time immemorial, and now found expression in a more elaborate, and, in many respects, in an improved government. The false element, that of aristocracy, which had penetrated the system and created much of the strife in the transitional period connected itself with the office of basileus, and remained after this office was abolished; but the new system accomplished its overthrow. More successfully than the remaining Grecian tribes, the Athenians were able to carry forward their ideas of government to their logical results. It is one reason why they became, for their numbers, the most distinguished, the most intellectual and the most accomplished race of men the entire human family has yet produced. In purely intellectual achievements they are still the astonishment of mankind. It was because the ideas which had been germinating through the previous ethnical period, and which had become interwoven with every fibre of their brains, had found a happy fruition in a democratically constituted state. Under its life-giving impulses their highest mental development occurred.

The plan of government instituted by Cleisthenes rejected the office of a chief executive magistrate, while it retained the council of chiefs in an elective senate, and the agora in the popular assembly. It is evident that the council, the agora and the basileus of the gentes were the germs of the senate, the popular assembly, and the chief executive magistrate (king, emperor and president) of modern political society. The latter office sprang from the military necessities of organized society, and its development with the upward progress of mankind is instructive. It can be traced from the common war-chief, first to the Great War Soldier, as in the Iroquois Confederacy; secondly, to the same military commander in a confederacy of tribes more advanced, with the functions of a priest attached to the office, as the Teuctli of the Aztec Confederacy; thirdly, to the same military commander in a nation formed by a coalescence of tribes, with the functions of a priest and of a judge attached to the office, as in the basileus of the Greeks; and finally, to the chief magistrate in modern political society. The elective archon of the Athenians, who succeeded the basileus, and the president of modern republics, from the elective tenure of the office, were the natural outcome of gentilism. We are indebted to the experience of barbarians for instituting and developing the three principal instrumentalities of government now so generally incorporated in the plan of government in civilized states. The human mind, specifically the same in all individuals in all the tribes and nations of mankind, and limited in the range of its powers, works and must work, in the same uniform channels, and within narrow limits of variation. Its results in disconnected regions of space, and in widely separated ages of time, articulate in a logically connected chain of common experiences. In the grand aggregate may still be recognized the few primary germs of thought, working upon primary human necessities, which, through the natural process of development, have produced such vast results.

X. THE INSTITUTION OF GRECIAN POLITICAL SOCIETY

FAILURE OF THE GENTES AS A BASIS OF GOVERNMENT.—LEGISLATION OF THESEUS.—ATTEMPTED SUBSTITUTION OF CLASSES.—ITS FAILURE.—ABOLITION OF THE OFFICE OF BASILEUS.—THE ARCHONSHIP.—NAUCRARIES AND TRYTTYES.—LEGISLATION OF SOLON.—THE PROPERTY CLASSES.—PARTIAL TRANSFER OF CIVIL POWER FROM THE GENTES TO THE CLASSES.—PERSONS UNATTACHED TO ANY GENS.—MADE CITIZENS.—THE SENATE.—THE ECCLESIA.—POLITICAL SOCIETY PARTIALLY ATTAINED.—LEGISLATION OF CLEISTHENES.—INSTITUTION OF POLITICAL SOCIETY.—THE ATTIC DEME OR TOWNSHIP.—ITS ORGANIZATION AND POWERS.—ITS LOCAL SELF-GOVERNMENT.—THE LOCAL TRIBE OR DISTRICT.—THE ATTIC COMMONWEALTH.—ATHENIAN DEMOCRACY.

The several Grecian communities passed through a substantially similar experience in transferring themselves from gentile into political society; but the mode of transition can be best illustrated from Athenian history, because the facts with respect to the Athenians are more fully preserved. A bare outline of the material events will answer the object in view, as it is not proposed to follow the growth of the idea of government beyond the inauguration of the new political system.

It is evident that the failure of gentile institutions to meet the now complicated wants of society originated the movement to withdraw all civil powers from the gentes, phratries and tribes, and re-invest them in new constituencies. This movement was gradual, extending through a long period of time, and was embodied in a series of successive experiments by means of which a remedy was sought for existing evils. The coming in of the new system was as gradual as the going out of the old, the two for a part of the time existing side by side. In the character and objects of the experiments tried we may discover wherein the gentile organization had failed to meet the requirements of society, the necessity for the subversion of the gentes, phratries and tribes as sources of power, and the means by which it was accomplished.

Looking backward upon the line of human progress, it may be remarked that the stockaded village was the usual home of the tribe in the Lower Status of barbarism. In the Middle Status joint-tenement houses of adobe-bricks and of stone, in the nature of fortresses, make their appearance. But in the Upper Status, cities surrounded with ring embankments, and finally with walls of dressed stone, appear for the first time in human experience. It was a great step forward when the thought found expression in action of surrounding an area ample for a considerable population with a defensive wall of dressed stone, with towers, parapets and gates, designed to protect all alike and to be defended by the common strength. Cities of this grade imply the existence of a stable and developed field agriculture, the possession of domestic animals in flocks and herds, of merchandise in masses and of property in houses and lands. The city brought with it new demands in the art of government by creating a changed condition of society. A necessity gradually arose for magistrates and judges, military and municipal officers of different grades, with a mode of raising and supporting military levies which would require public revenues. Municipal life and wants must have greatly augmented the duties and responsibilities of the council of chiefs, and perhaps have overtaxed its capacity to govern.

It has been shown that in the Lower Status of barbarism the government was of one power, the council of chiefs; that in the Middle Status it was of two powers, the council of chiefs and the military commander; and that in the Upper Status it was of three powers, the council of chiefs, the assembly of the people and the military commander. But after the commencement of civilization, the differentiation of the powers of the government had proceeded still further. The military power, first devolved upon the basileus, was now exercised by generals and captains under greater restrictions. By a further differentiation the judicial power had now appeared among the Athenians. It was exercised by the archons and dicasts. Magisterial powers were now being devolved upon municipal magistrates. Step by step, and with the progress of experience and advancement, these several powers had been taken by differentiation from the sum of the powers of the original council of chiefs, so far as they could be said to have passed from the people into this council as a representative body.

The creation of these municipal offices was a necessary consequence of the increasing magnitude and complexity of their affairs. Under the increased burden gentile institutions were breaking down. Unnumbered disorders existed, both from the conflict of authority, and from the abuse of powers not as yet well defined. The brief and masterly sketch by Thucydides of the condition of the Grecian tribes in the transitional period,[270] and the concurrent testimony of other writers to the same effect, leave no doubt that the old system of government was failing, and that a new one had become essential to further progress. A wider distribution of the powers of the government, a clearer definition of them, and a stricter accountability of official persons were needed for the welfare as well as safety of society; and more especially the substitution of written laws, enacted by competent authority, in the place of usages and customs. It was through the experimental knowledge gained in this and the previous ethnical period that the idea of political society or a state was gradually forming in the Grecian mind. It was a growth running through centuries of time, from the first appearance of a necessity for a change in the plan of government, before the entire result was realized.

The first attempt among the Athenians to subvert the gentile organization and establish a new system is ascribed to Theseus, and therefore rests upon tradition; but certain facts remained to the historical period which confirm some part at least of his supposed legislation. It will be sufficient to regard Theseus as representing a period, or a series of events. From the time of Cecrops to Theseus, according to Thucydides, Attic people had always lived in cities, having their own prytaneums and archons, and when not in fear of danger did not consult their basileus, but governed their own affairs separately according to their own councils. But when Theseus was made basileus, he persuaded them to break up the council-houses and magistracies of their several cities and come into relation with Athens, with one council-house (βουλευτήριος), and one prytaneum (πρυτανεῖον), to which all were considered as belonging.[271] This statement embodies or implies a number of important facts, namely; that the Attic population were organized in independent tribes, each having its own territory in which the people were localized, with its own council-house and prytaneum; and that while they were self-governing societies they were probably confederated for mutual protection, and elected their basileus or general to command their common forces. It is a picture of communities democratically organized, needing a military commander as a necessity of their condition, but not invested with civil functions which their gentile system excluded. Under Theseus they were brought to coalesce into one people, with Athens as their seat of government, which gave them a higher organization than before they had been able to form. The coalescence of tribes into a nation in one territory is later in time than confederations, where the tribes occupy independent territories. It is a higher organic process. While the gentes had always been intermingled by marriage, the tribes were now intermingled by obliterating territorial lines, and by the use of a common council-hall and prytaneum. The act ascribed to Theseus explains the advancement of their gentile society from a lower to a higher organic form, which must have occurred at some time, and probably was effected in the manner stated.

But another act is ascribed to Theseus evincing a more radical plan, as well as an appreciation of the necessity for a fundamental change in the plan of government. He divided the people into three classes, irrespective of gentes, called respectively the Eupatridæ or “well-born,” the Geomori or “husbandmen,” and the Demiurgi or “artisans.” The principal offices were assigned to the first class both in the civil administration and in the priesthood. This classification was not only a recognition of property and of the aristocratic element in the government of society, but it was a direct movement against the governing power of the gentes. It was the evident intention to unite the chiefs of the gentes with their families, and the men of wealth in the several gentes, in a class by themselves, with the right to hold the principal offices in which the powers of society were vested. The separation of the remainder into two great classes traversed the gentes again. Important results might have followed if the voting power had been taken from the gentes, phratries and tribes, and given to the classes, subject to the right of the first to hold the principal offices. This does not appear to have been done, although absolutely necessary to give vitality to the classes. Moreover, it did not change essentially the previous order of things with respect to holding office. Those now called Eupatrids were probably the men of the several gentes who had previously been called into office. This scheme of Theseus died out, because there was in reality no transfer of powers from the gentes, phratries and tribes to the classes, and because such classes were inferior to the gentes as the basis of a system.

The centuries that elapsed from the unknown time of Theseus to the legislation of Solon (594 B. C.) formed one of the most important periods in Athenian experience; but the succession of events is imperfectly known. The office of basileus was abolished prior to the first Olympiad (776 B. C.), and the archonship established in its place. The latter seems to have been hereditary in a gens, and it is stated to have been hereditary in a particular family within the gens, the first twelve archons being called the Medontidæ, from Medon, the first archon, claimed to have been the son of Codrus, the last basileus. In the case of these archons, who held for life, the same question exists which has elsewhere been raised with respect to the basileus; that an election or confirmation by a constituency was necessary before the office could be assumed. The presumption is against the transmission of the office by hereditary right. In 711 B. C. the office of archon was limited to ten years, and bestowed by free election upon the person esteemed most worthy of the position. We are now within the historical period, though near its threshold, where we meet the elective principle with respect to the highest office in the gift of the people clearly and completely established. It is precisely what would have been expected from the constitution and principles of the gentes, although the aristocratical principle, as we must suppose, had increased in force with the increase of property, and was the source through which hereditary right was introduced wherever found. The existence of the elective principle with respect to the later archons is not without significance in its relation to the question of the previous practice of the Athenians. In 683 B. C. the office was made elective annually, the number was increased to nine, and their duties were made ministerial and judicial.[272] We may notice, in these events, evidence of a gradual progress in knowledge with respect to the tenure of office. The Athenian tribes had inherited from their remote ancestors the office of archon (ἀρχός) as chief of the gens. It was hereditary in the gens, as may fairly be supposed, and elective among its members. After descent was changed to the male line the sons of the deceased chief were within the line of succession, and one of their number would be apt to be chosen in the absence of personal objections. But now they reverted to this original office for the name of their highest magistrate, made it elective irrespective of any gens, and limited its duration, first to ten years, and finally to one. Prior to this, the tenure of office to which they had been accustomed was for life. In the Lower and also in the Middle Status of barbarism we have found the office of chief, elective and for life; or during good behavior, for this limitation follows from the right of the gens to depose from office. It is a reasonable inference that the office of chief in a Grecian gens was held by a free election and by the same tenure. It must be regarded as proof of a remarkable advancement in knowledge at this early period that the Athenian tribes substituted a term of years for their most important office, and allowed a competition of candidates. They thus worked out the entire theory of an elective and representative office, and placed it upon its true basis.

In the time of Solon, it may be further noticed, the Court of Areopagus, composed of ex-archons, had come into existence with power to try criminals and with a censorship over morals, together with a number of new offices in the military, naval and administrative services. But the most important event that occurred about this time was the institution of the naucraries (ναυκραρίαι), twelve in each tribe, and forty-eight in all; each of which was a local circumscription of householders from which levies were drawn into the military and naval service, and from which taxes were probably collected. The naucrary was the incipient deme or township which, when the idea of a territorial basis was fully developed, was to become the foundation of the second great plan of government. By whom the naucraries were instituted is unknown. “They must have existed even before the time of Solon,” Boeckh remarks, “since the presiding officers of the naucraries (πρυτάνεις τῶν ναυκράρων) are mentioned before the time of his legislation; and when Aristotle ascribes their institution to Solon, we may refer this account only to their confirmation by the political constitution of Solon.”[273] Twelve naucraries formed a trittys (τριττύς) a larger territorial circumscription, but they were not necessarily contiguous. It was, in like manner, the germ of the county, the next territorial aggregate above the township.

Notwithstanding the great changes that had occurred in the instrumentalities by which the government was administered, the people were still in a gentile society, and living under gentile institutions. The gens, phratry and tribe were in full vitality, and the recognized sources of power. Before the time of Solon no person could become a member of this society except through connection with a gens and tribe. All other persons were beyond the pale of the government. The council of chiefs remained, the old and time-honored instrument of government; but the powers of the government were now coordinated between itself, the agora or assembly of the people, the Court of Areopagus, and the nine archons. It was the prerogative of the council to originate and mature public measures for submission to the people, which enabled it to shape the policy of the government. It doubtless had the general administration of the finances, and it remained to the end, as it had been from the beginning, the central feature of the government. The assembly of the people had now come into increased prominence. Its functions were still limited to the adoption or rejection of public measures submitted to its decision by the council; but it began to exercise a powerful influence upon public affairs. The rise of this assembly as a power in the government is the surest evidence of the progress of the Athenian people in knowledge and intelligence. Unfortunately the functions and powers of the council of chiefs and of the assembly of the people in this early period have been imperfectly preserved, and but partially elucidated.

In 624 B. C. Draco had framed a body of laws for the Athenians which were chiefly remarkable for their unnecessary severity; but this code demonstrated that the time was drawing near in Grecian experience when usages and customs were to be superseded by written laws. As yet the Athenians had not learned the art of enacting laws as the necessity for them appeared, which required a higher knowledge of the functions of legislative bodies than they had attained. They were in that stage in which lawgivers appear, and legislation is in a scheme or in gross, under the sanction of a personal name. Thus slowly the great sequences of human progress unfold themselves.

When Solon came into the archonship (594 B. C.) the evils prevalent in society had reached an unbearable degree. The struggle for the possession of property, now a commanding interest, had produced singular results. A portion of the Athenians had fallen into slavery, through debt,—the person of the debtor being liable to enslavement in default of payment; others had mortgaged their lands and were unable to remove the encumbrances; and as a consequence of these and other embarrassments society was devouring itself. In addition to a body of laws, some of them novel, but corrective of the principal financial difficulties, Solon renewed the project of Theseus of organizing society into classes, not according to callings as before, but according to the amount of their property. It is instructive to follow the course of these experiments to supersede the gentes and substitute a new system, because we shall find the Roman tribes, in the time of Servius Tullius, trying the same experiment for the same purpose. Solon divided the people into four classes according to the measure of their wealth, and going beyond Theseus, he invested these classes with certain powers, and imposed upon them certain obligations. It transferred a portion of the civil powers of the gentes, phratries and tribes to the property classes. In proportion as the substance of power was drawn from the former and invested in the latter, the gentes would be weakened and their decadence would commence. But so far as classes composed of persons were substituted for gentes composed of persons, the government was still founded upon person, and upon relations purely personal. The scheme failed to reach the substance of the question. Moreover, in changing the council of chiefs into the senate of four hundred, the members were taken in equal numbers from the four tribes, and not from the classes. But it will be noticed that the idea of property, as the basis of a system of government, was now incorporated by Solon in the new plan of property classes. It failed, however, to reach the idea of political society, which must rest upon territory as well as property, and deal with persons through their territorial relations. The first class alone were eligible to the high offices, the second performed military service on horseback, the third as infantry, and the fourth as light-armed soldiers. This last class were the numerical majority. They were disqualified from holding office, and paid no taxes; but in the popular assembly of which they were members, they possessed a vote upon the election of all magistrates and officers, with power to bring them to an account. They also had power to adopt or reject all public measures submitted by the senate to their decision. Under the constitution of Solon their powers were real and durable, and their influence upon public affairs was permanent and substantial. All freemen, though not connected with a gens and tribe, were now brought into the government, to a certain extent, by becoming citizens and members of the assembly of the people with the powers named. This was one of the most important results of the legislation of Solon.

It will be further noticed that the people were now organized as an army, consisting of three divisions; the cavalry, the heavy-armed infantry, and the light-armed infantry, each with its own officers of different grades. The form of the statement limits the array to the last three classes, which leaves the first class in the unpatriotic position of appropriating to themselves the principal offices of the government, and taking no part in the military service. This undoubtedly requires modification. The same plan of organization, but including the five classes, will re-appear among the Romans under Servius Tullius, by whom the body of the people were organized as an army (exercitus) fully officered and equipped in each subdivision. The idea of a military democracy, different in organization but the same theoretically as that of the previous period, re-appears in a new dress both in the Solonian and in the Servian constitution.

In addition to the property element, which entered into the basis of the new system, the territorial element was partially incorporated through the naucraries before adverted to, in which it is probable there was an enrollment of citizens and of their property to form a basis for military levies and for taxation. These provisions, with the senate, the popular assembly now called the ecclesia, the nine archons, and the Court of Areopagus, gave to the Athenians a much more elaborate government than they had before known, and requiring a higher degree of intelligence for its management. It was also essentially democratical in harmony with their antecedent ideas and institutions; in fact a logical consequence of them, and explainable only as such. But it fell short of a pure system in three respects: firstly, it was not founded upon territory; secondly, all the dignities of the state were not open to every citizen; and thirdly, the principle of local self-government in primary organizations was unknown, except as it may have existed imperfectly in the naucraries. The gentes, phratries and tribes still remained in full vitality, but with diminished powers. It was a transitional condition, requiring further experience to develop the theory of a political system toward which it was a great advance. Thus slowly but steadily human institutions are evolved from lower into higher forms, through the logical operations of the human mind working in uniform but predetermined channels.

There was one weighty reason for the overthrow of the gentes and the substitution of a new plan of government. It was probably recognized by Theseus, and undoubtedly by Solon. From the disturbed condition of the Grecian tribes and the unavoidable movements of the people in the traditionary period and in the times prior to Solon, many persons transferred themselves from one nation to another, and thus lost their connection with their own gens without acquiring a connection with another. This would repeat itself from time to time, through personal adventure, the spirit of trade, and the exigencies of warfare, until a considerable number with their posterity would be developed in every tribe unconnected with any gens. All such persons, as before remarked, would be without the pale of the government with which there could be no connection excepting through a gens and tribe. The fact is noticed by Mr. Grote. “The phratries and gentes,” he remarks, “probably never at any time included the whole population of the country—and the population not included in them tended to become larger and larger in the times anterior to Kleisthenes, as well as afterwards.”[274] As early as the time of Lycurgus there was a considerable immigration into Greece from the islands of the Mediterranean, and from the Ionian cities of its eastern coasts, which increased the number of persons unattached to any gens. When they came in families they would bring a fragment of a new gens with them; but they would remain aliens unless the new gens was admitted into a tribe. This probably occurred in a number of cases, and it may assist in explaining the unusual number of gentes in Greece. The gentes and phratries were close corporations, both of which would have been adulterated by the absorption of these aliens through adoption into a native gens. Persons of distinction might be adopted into some gens, or secure the admission of their own gens into some tribe; but the poorer class would be refused either privilege. There can be no doubt that as far back as the time of Theseus, and more especially in the time of Solon, the number of the unattached class, exclusive of the slaves, had become large. Having neither gens nor phratry they were also without direct religious privileges, which were inherent and exclusive in these organizations. It is not difficult to see in this class of persons a growing element of discontent dangerous to the security of society.

The schemes of Theseus and of Solon made imperfect provision for their admission to citizenship through the classes; but as the gentes and phratries remained from which they were excluded, the remedy was still incomplete. Mr. Grote further remarks, that “it is not easy to make out distinctly what was the political position of the ancient Gentes and Phratries, as Solon left them. The four tribes consisted altogether of gentes and phratries, insomuch that no one could be included in any one of the tribes who was not also a member of some gens and phratry. Now the new probouleutic or pre-considering senate consisted of 400 members,—100 from each of the tribes: persons not included in any gens and phratry could therefore have had no access to it. The conditions of eligibility were similar, according to ancient custom, for the nine archons—of course, also, for the senate of Areopagus. So that there remained only the public assembly, in which an Athenian, not a member of these tribes, could take part: yet he was a citizen, since he could give his vote for archons and senators, and could take part in the annual decision of their accountability, besides being entitled to claim redress for wrong from the archons in his own person—while the alien could only do so through the intervention of an avouching citizen, or Prostatês. It seems therefore that all persons not included in the four tribes, whatever their grade or fortune might be, were on the same level in respect to political privilege as the fourth and poorest class of the Solonian census. It has already been remarked, that even before the time of Solon, the number of Athenians not included in the gentes or phratries was probably considerable: it tended to become greater and greater, since these bodies were close and unexpansive, while the policy of the new lawgiver tended to invite industrious settlers from other parts of Greece to Athens.”[275] The Roman Plebeians originated from causes precisely similar. They were not members of any gens, and therefore formed no part of the Populus Romanus. We may find in the facts stated one of the reasons of the failure of the gentile organization to meet the requirements of society. In the time of Solon, society had outgrown their ability to govern, its affairs had advanced so far beyond the condition in which the gentes originated. They furnished a basis too narrow for a state, up to the measure of which the people had grown.

There was also an increasing difficulty in keeping the members of a gens, phratry and tribe locally together. As parts of a governmental organic series, this fact of localization was highly necessary. In the earlier period, the gens held its lands in common, the phratries held certain lands in common for religious uses, and the tribe probably held other lands in common. When they established themselves in country or city, they settled locally together by gentes, by phratries and by tribes, as a consequence of their social organization. Each gens was in the main by itself—not all of its members, for two gentes were represented in every family, but the body who propagated the gens. Those gentes belonging to the same phratry naturally sought contiguous or at least near areas, and the same with the several phratries of the tribe. But in the time of Solon, lands and houses had come to be owned by individuals in severalty, with power of alienation as to lands, but not of houses out of the gens. It doubtless became more and more impossible to keep the members of a gens locally together, from the shifting relations of persons to land, and from the creation of new property by its members in other localities. The unit of their social system was becoming unstable in place, and also in character. Without stopping to develop this fact of their condition further, it must have proved one of the reasons of the failure of the old plan of government. The township, with its fixed property and its inhabitants for the time being, yielded that element of permanence now wanting in the gens. Society had made immense progress from its former condition of extreme simplicity. It was very different from that which the gentile organization was instituted to govern. Nothing but the unsettled condition and incessant warfare of the Athenian tribes, from their settlement in Attica to the time of Solon, could have preserved this organization from overthrow. After their establishment in walled cities, that rapid development of wealth and numbers occurred which brought the gentes to the final test, and demonstrated their inability to govern a people now rapidly approaching civilization. But their displacement even then required a long period of time.

The seriousness of the difficulties to be overcome in creating a political society are strikingly illustrated in the experience of the Athenians. In the time of Solon, Athens had already produced able men; the useful arts had attained a very considerable development; commerce on the sea had become a national interest; agriculture and manufactures were well advanced; and written composition in verse had commenced. They were in fact a civilized people, and had been for two centuries; but their institutions of government were still gentile, and of the type prevalent throughout the Later Period of barbarism. A great impetus had been given to the Athenian commonwealth by the new system of Solon; nevertheless, nearly a century elapsed, accompanied with many disorders, before the idea of a state was fully developed in the Athenian mind. Out of the naucrary, a conception of a township as the unit of a political system was finally elaborated; but it required a man of the highest genius, as well as great personal influence, to seize the idea in its fullness, and give it an organic embodiment. That man finally appeared in Cleisthenes (509 B. C.), who must be regarded as the first of Athenian legislators—the founder of the second great plan of human government, that under which modern civilized nations are organized.

Cleisthenes went to the bottom of the question, and placed the Athenian political system upon the foundation on which it remained to the close of the independent existence of the commonwealth. He divided Attica into a hundred demes, or townships, each circumscribed by metes and bounds, and distinguished by a name. Every citizen was required to register himself, and to cause an enrollment of his property in the deme in which he resided. This enrollment was the evidence as well as the foundation of his civil privileges. The deme displaced the naucrary. Its inhabitants were an organized body politic with powers of local self-government, like the modern American township. This is the vital and the remarkable feature of the system. It reveals at once its democratic character. The government was placed in the hands of the people in the first of the series of territorial organizations. The demotæ elected a demarch (δήμαρχος), who had the custody of the public register; he had also power to convene the demotæ for the purpose of electing magistrates and judges, for revising the registry of citizens, and for the enrollment of such as became of age during the year. They elected a treasurer, and provided for the assessment and collection of taxes, and for furnishing the quota of troops required of the deme for the service of the state. They also elected thirty dicasts or judges, who tried all causes arising in the deme where the amount involved fell below a certain sum. Besides these powers of local self-government, which is the essence of a democratic system, each deme had its own temple and religious worship, and its own priest, also elected by the demotæ. Omitting minor particulars, we find the instructive and remarkable fact that the township, as first instituted, possessed all the powers of local self-government, and even upon a fuller and larger scale than an American township. Freedom in religion is also noticeable, which was placed where it rightfully belongs, under the control of the people. All registered citizens were free, and equal in their rights and privileges, with the exception of equal eligibility to the higher offices. Such was the new unit of organization in Athenian political society, at once a model for a free state, and a marvel of wisdom and knowledge. The Athenians commenced with a democratic organization at the point where every people must commence who desire to create a free state, and place the control of the government in the hands of its citizens.

The second member of the organic territorial series consisted of ten demes, united in a larger geographical district. It was called a local tribe (φῦλον τοπικὸν), to preserve some part of the terminology of the old gentile system.[276] Each district was named after an Attic hero, and it was the analogue of the modern county. The demes in each district were usually contiguous, which should have been true in every instance to render the analogy complete; but in a few cases one or more of the ten were detached, probably in consequence of the local separation of portions of the original consanguine tribe who desired to have their deme incorporated in the district of their immediate kinsmen. The inhabitants of each district or county were also a body politic, with certain powers of local self-government. They elected a phylarch (φύλαρχος), who commanded the cavalry; a taxiarch (ταξίαρχος), who commanded the foot-soldiers, and a general (στρατηγός), who commanded both; and as each district was required to furnish five triremes, they probably elected as many trierarchs (τριήραρχος) to command them. Cleisthenes increased the senate to five hundred, and assigned fifty to each district. They were elected by its inhabitants. Other functions of this larger body politic doubtless existed, but they have been imperfectly explained.

The third and last member of the territorial series was the Athenian commonwealth or state, consisting of ten local tribes or districts. It was an organized body politic, embracing the aggregate of Athenian citizens. It was represented by a senate, an ecclesia, the court of Areopagus, the archons, and judges, and the body of elected military and naval commanders.

Thus the Athenians founded the second great plan of government upon territory and upon property. They substituted a series of territorial aggregates in the place of an ascending series of aggregates of persons. As a plan of government it rested upon territory which was necessarily permanent, and upon property which was more or less localized; and it dealt with its citizens, now localized in demes through their territorial relations. To be a citizen of the state it was necessary to be a citizen of a deme. The person voted and was taxed in his deme, and he was called into the military service from his deme. In like manner he was called by election into the senate, and to the command of a division of the army or navy from the larger district of his local tribe. His relations to a gens or phratry ceased to govern his duties as a citizen. The contrast between the two systems is as marked as their difference was fundamental. A coalescence of the people into bodies politic in territorial areas now became complete.

The territorial series enters into the plan of government of modern civilized nations. Among ourselves, for example, we have the township, the county, the state, and the United States; the inhabitants of each of which are an organized body politic with powers of local self-government. Each organization is in full vitality and performs its functions within a definite sphere in which it is supreme. France has a similar series in the commune, the arrondissement, the department, and the empire, now the republic. In Great Britain the series is the parish, the shire, the kingdom, and the three kingdoms. In the Saxon period the hundred seems to have been the analogue of the township;[277] but already emasculated of the powers of local self-government, with the exception of the hundred court. The inhabitants of these several areas were organized as bodies politic, but those below the highest with very limited powers. The tendency to centralization under monarchical institutions has atrophied, practically, all the lower organizations.

As a consequence of the legislation of Cleisthenes, the gentes, phratries and tribes were divested of their influence, because their powers were taken from them and vested in the deme, the local tribe and the state, which became from thenceforth the sources of all political power. They were not dissolved, however, even after this overthrow, but remained for centuries as a pedigree and lineage, and as fountains of religious life. In certain orations of Demosthenes, where the cases involved personal or property rights, descents or rights of sepulture, both the gens and phratry appear as living organizations in his time.[278] They were left undisturbed by the new system so far as their connection with religious rites, with certain criminal proceedings, and with certain social practices were concerned, which arrested their total dissolution. The classes, however, both those instituted by Theseus and those afterwards created by Solon, disappeared after the time of Cleisthenes.[279]

Solon is usually regarded as the founder of Athenian democracy, while some writers attribute a portion of the work to Cleisthenes and Theseus. We shall draw nearer the truth of the matter by regarding Theseus, Solon and Cleisthenes as standing connected with three great movements of the Athenian people, not to found a democracy, for Athenian democracy was older than either, but to change the plan of government from a gentile into a political organization. Neither sought to change the existing principles of democracy which had been inherited from the gentes. They contributed in their respective times to the great movement for the formation of a state, which required the substitution of a political in the place of gentile society. The invention of a township, and the organization of its inhabitants as a body politic, was the main feature in the problem. It may seem to us a simple matter; but it taxed the capacities of the Athenians to their lowest depths before the idea of a township found expression in its actual creation. It was an inspiration of the genius of Cleisthenes; and it stands as the master work of a master mind. In the new political society they realized that complete democracy which already existed in every essential principle, but which required a change in the plan of government to give it a more ample field and a fuller expression. It is precisely here, as it seems to the writer, that we have been misled by the erroneous assumption of the great historian, Mr. Grote, whose general views of Grecian institutions are so sound and perspicuous, namely, that the early governments of the Grecian tribes were essentially monarchical.[280] On this assumption it requires a revolution of institutions to explain the existence of that Athenian democracy under which the great mental achievements of the Athenians were made. No such revolution occurred, and no radical change of institutions was ever effected, for the reason that they were and always had been essentially democratical. Usurpations not unlikely occurred, followed by controversies for the restoration of the previous order; but they never lost their liberties, or those ideas of freedom and of the right of self-government which had been their inheritance in all ages.

Recurring for a moment to the basileus, the office tended to make the man more conspicuous than any other in their affairs. He was the first person to catch the mental eye of the historian by whom he has been metamorphosed into a king, notwithstanding he was made to reign, and by divine right, over a rude democracy. As a general in a military democracy, the basileus becomes intelligible, and without violating the institutions that actually existed. The introduction of this office did not change the principles of the gentes, phratries and tribes, which in their organization were essentially democratical, and which of necessity impressed that character on their gentile system. Evidence is not wanting that the popular element was constantly active to resist encroachments on personal rights. The basileus belongs to the traditionary period, when the powers of government were more or less undefined; but the council of chiefs existed in the centre of the system, and also the gentes, phratries and tribes in full vitality. These are sufficient to determine the character of the government.[281]

The government as reconstituted by Cleisthenes contrasted strongly with that previous to the time of Solon. But the transition was not only natural but inevitable if the people followed their ideas to their logical results. It was a change of plan, but not of principles nor even of instrumentalities. The council of chiefs remained in the senate, the agora in the ecclesia; the three highest archons were respectively ministers of state, of religion, and of justice as before, while the six inferior archons exercised judicial functions in connection with the courts, and the large body of dicasts now elected annually for judicial service. No executive officer existed under the system, which is one of its striking peculiarities. The nearest approach to it was the president of the senate, who was elected by lot for a single day, without the possibility of a re-election during the year. For a single day he presided over the popular assembly, and held the keys of the citadel and of the treasury. Under the new government the popular assembly held the substance of power, and guided the destiny of Athens. The new element which gave stability and order to the state was the deme or township, with its complete autonomy, and local self-government. A hundred demes similarly organized would determine the general movement of the commonwealth. As the unit, so the compound. It is here that the people, as before remarked, must begin if they would learn the art of self-government, and maintain equal laws, and equal rights and privileges. They must retain in their hands all the powers of society not necessary to the state to insure an efficient general administration, as well as the control of the administration itself.

Athens rose rapidly into influence and distinction under the new political system. That remarkable development of genius and intelligence, which raised the Athenians to the highest eminence among the historical nations of mankind, occurred under the inspiration of democratic institutions.

With the institution of political society under Cleisthenes, the gentile organization was laid aside as a portion of the rags of barbarism. Their ancestors had lived for untold centuries in gentilism, with which they had achieved all the elements of civilization, including a written language, as well as entered upon a civilized career. The history of the gentile organization will remain as a perpetual monument of the anterior ages, identified as it has been with the most remarkable and extended experience of mankind. It must ever be ranked as one of the most remarkable institutions of the human family.

In this brief and inadequate review the discussion has been confined to the main course of events in Athenian history. Whatever was true of the Athenian tribes will be found substantially true of the remaining Grecian tribes, though not exhibited on so broad or so grand a scale. The discussion tends to render still more apparent one of the main propositions advanced—that the idea of government in all the tribes of mankind has been a growth through successive stages of development.

XI. THE ROMAN GENS

ITALIAN TRIBES ORGANIZED IN GENTES.—FOUNDING OF ROME.—TRIBES ORGANIZED INTO A MILITARY DEMOCRACY.—THE ROMAN GENS.—DEFINITION OF A GENTILIS BY CICERO.—BY FESTUS.—BY VARRO.—DESCENT IN MALE LINE.—MARRYING OUT OF THE GENS.—RIGHTS AND OBLIGATIONS OF THE MEMBERS OF A GENS.—DEMOCRATIC CONSTITUTION OF ANCIENT LATIN SOCIETY.—NUMBER OF PERSONS IN A GENS.

When the Latins, and their congeners the Sabellians, the Oscans and the Umbrians, entered the Italian peninsula probably as one people, they were in possession of domestic animals, and probably cultivated cereals and plants.[282] At the least they were well advanced in the Middle Status of barbarism; and when they first came under historical notice they were in the Upper Status, and near the threshold of civilization.

The traditionary history of the Latin tribes, prior to the time of Romulus, is much more scanty and imperfect than that of the Grecian, whose earlier relative literary culture and stronger literary proclivities enabled them to preserve a larger proportion of their traditionary accounts. Concerning their anterior experience, tradition did not reach beyond their previous life on the Alban hills, and the ranges of the Appenines eastward from the site of Rome. For tribes so far advanced in the arts of life it would have required a long occupation of Italy to efface all knowledge of the country from which they came. In the time of Romulus[283] they had already fallen by segmentation into thirty independent tribes, still united in a loose confederacy for mutual protection. They also occupied contiguous territorial areas. The Sabellians, Oscans, and Umbrians were in the same general condition; their respective tribes were in the same relations; and their territorial circumscriptions, as might have been expected, were founded upon dialect. All alike, including their northern neighbors the Etruscans, were organized in gentes, with institutions similar to those of the Grecian tribes. Such was their general condition when they first emerged from behind the dark curtain of their previous obscurity, and the light of history fell upon them.

Roman history has touched but slightly the particulars of a vast experience anterior to the founding of Rome (about 753 B. C.). The Italian tribes had then become numerous and populous; they had become strictly agricultural in their habits, possessed flocks and herds of domestic animals, and had made great progress in the arts of life. They had also attained the monogamian family. All this is shown by their condition when first made known to us; but the particulars of their progress from a lower to a higher state had, in the main, fallen out of knowledge. They were backward in the growth of the idea of government; since the confederacy of tribes was still the full extent of their advancement. Although the thirty tribes were confederated, it was in the nature of a league for mutual defense, and neither sufficiently close or intimate to tend to a nationality.

The Etruscan tribes were confederated; and the same was probably true of the Sabellian, Oscan and Umbrian tribes. While the Latin tribes possessed numerous fortified towns and country strongholds, they were spread over the surface of the country for agricultural pursuits, and for the maintenance of their flocks and herds. Concentration and coalescence had not occurred to any marked extent until the great movement ascribed to Romulus which resulted in the foundation of Rome. These loosely united Latin tribes furnished the principal materials from which the new city was to draw its strength. The accounts of these tribes from the time of the supremacy of the chiefs of Alba down to the time of Servius Tullius, were made up to a great extent of fables and traditions; but certain facts remained in the institutions and social usages transmitted to the historical period which tend, in a remarkable manner, to illustrate their previous condition. They are even more important than an outline history of actual events.

Among the institutions of the Latin tribes existing at the commencement of the historical period were the gentes, curiæ and tribes upon which Romulus and his successors established the Roman power. The new government was not in all respects a natural growth; but modified in the upper members of the organic series by legislative procurement. The gentes, however, which formed the basis of the organization, were natural growths, and in the main either of common or cognate lineage. That is, the Latin gentes were of the same lineage, while the Sabine and other gentes, with the exception of the Etruscans, were of cognate descent. In the time of Tarquinius Priscus, the fourth in succession from Romulus, the organization had been brought to a numerical scale, namely: ten gentes to a curia, ten curiæ to a tribe, and three tribes of the Romans; giving a total of three hundred gentes integrated in one gentile society.

Romulus had the sagacity to perceive that a confederacy of tribes, composed of gentes and occupying separate areas, had neither the unity of purpose nor sufficient strength to accomplish more than the maintenance of an independent existence. The tendency to disintegration counteracted the advantages of the federal principle. Concentration and coalescence were the remedy proposed by Romulus and the wise men of his time. It was a remarkable movement for the period, and still more remarkable in its progress from the epoch of Romulus to the institution of political society under Servius Tullius. Following the course of the Athenian tribes and concentrating in one city, they wrought out in five generations a similar and complete change in the plan of government, from a gentile into a political organization.

It will be sufficient to remind the reader of the general facts that Romulus united upon and around the Palatine Hill a hundred Latin gentes, organized as a tribe, the Ramnes; that by a fortunate concurrence of circumstances a large body of Sabines were added to the new community whose gentes, afterwards increased to one hundred, were organized as a second tribe, the Tities; and that in the time of Tarquinius Priscus a third tribe, the Luceres, had been formed, composed of a hundred gentes drawn from surrounding tribes, including the Etruscans. Three hundred gentes, in about the space of a hundred years, were thus gathered at Rome, and completely organized under a council of chiefs now called the Roman Senate, an assembly of the people now called the comitia curiata, and one military commander, the rex; and with one purpose, that of gaining a military ascendency in Italy.

Under the constitution of Romulus, and the subsequent legislation of Servius Tullius, the government was essentially a military democracy, because the military spirit predominated in the government. But it may be remarked in passing that a new and antagonistic element, the Roman senate, was now incorporated in the centre of the social system, which conferred patrician rank upon its members and their posterity. A privileged class was thus created at a stroke, and intrenched first in the gentile and afterwards in the political system, which ultimately overthrew the democratic principles inherited from the gentes. It was the Roman senate, with the patrician class it created, that changed the institutions and the destiny of the Roman people, and turned them from a career, analogous to that of the Athenians, to which their inherited principles naturally and logically tended.

In its main features the new organization was a masterpiece of wisdom for military purposes. It soon carried them entirely beyond the remaining Italian tribes, and ultimately into supremacy over the entire peninsula.

The organization of the Latin and other Italian tribes into gentes has been investigated by Niebuhr, Hermann, Mommsen, Long and others; but their several accounts fall short of a clear and complete exposition of the structure and principles of the Italian gens. This is due in part to the obscurity in which portions of the subject are enveloped, and to the absence of minute details in the Latin writers. It is also in part due to a misconception, by some of the first named writers, of the relations of the family to the gens. They regard the gens as composed of families, whereas it was composed of parts of families; so that the gens and not the family was the unit of the social system. It may be difficult to carry the investigation much beyond the point where they have left it; but information drawn from the archaic constitution of the gens may serve to elucidate some of its characteristics which are now obscure.

Concerning the prevalence of the organization into gentes among the Italian tribes, Niebuhr remarks as follows: “Should any one still contend that no conclusion is to be drawn from the character of the Athenian gennētes to that of the Roman gentiles, he will be bound to show how an institution which runs through the whole ancient world came to have a completely different character in Italy and in Greece.... Every body of citizens was divided in this manner; the Gephyræans and Salaminians as well as the Athenians, the Tusculans as well as the Romans.”[284]

Besides the existence of the Roman gens, it is desirable to know the nature of the organization; its rights, privileges and obligations, and the relations of the gentes to each other, as members of a social system. After these have been considered, their relations to the curiæ, tribes, and resulting people of which they formed a part, will remain for consideration in the next ensuing chapter.

After collecting the accessible information from various sources upon these subjects it will be found incomplete in many respects, leaving some of the attributes and functions of the gens a matter of inference. The powers of the gentes were withdrawn, and transferred to new political bodies before historical composition among the Romans had fairly commenced. There was, therefore, no practical necessity resting upon the Romans for preserving the special features of a system substantially set aside. Gaius, who wrote his Institutes in the early part of the second century of our era, took occasion to remark that the whole jus gentilicium had fallen into desuetude, and that it was then superfluous to treat the subject.[285] But at the foundation of Rome, and for several centuries thereafter, the gentile organization was in vigorous activity.

The Roman definition of a gens and of a gentilis, and the line in which descent was traced should be presented before the characteristics of the gens are considered. In the Topics of Cicero a gentilis is defined as follows: Those are gentiles who are of the same name among themselves. This is insufficient. Who were born of free parents. Even that is not sufficient. No one of whose ancestors has been a slave. Something still is wanting. Who have never suffered capital diminution. This perhaps may do; for I am not aware that Scaevola, the Pontiff, added anything to this definition.[286] There is one by Festus: “A gentilis is described as one both sprung from the same stock, and who is called by the same name.”[287] Also by Varro: As from an Aemilius men are born Aemilii, and gentiles; so from the name Aemilius terms are derived pertaining to gentilism.[288]

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:

I. _Mutual rights of succession to the property of deceased gentiles._ II. The possession of a common burial place. III. Common religious rites; sacra gentilicia. IV. The obligation not to marry in the gens. V. The possession of lands in common. VI. _Reciprocal obligations of help, defense, and redress of injuries._ VII. The right to bear the gentile name. VIII. The right to adopt strangers into the gens. IX. The right to elect and depose its chiefs; query.

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.

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 Dionysius[342] 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 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 senators[349] 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.

This assembly among the Romans was called the comitia curiata, because the members of the gentes of adult age met in one assembly by curiæ, and voted in the same manner. Each curia had one collective vote, the majority in each was ascertained separately, and determined what that vote should be.[354] It was the assembly of the gentes, who alone were members of the government. Plebeians and clients, who already formed a numerous class, were excluded, because there could be no connection with the Populus Romanus, except through a gens and tribe. This assembly, as before stated, could neither originate public measures, nor amend such as were submitted to them; but none of a certain grade could become operative until adopted by the comitia. All laws were passed or repealed by this assembly; all magistrates and high public functionaries, including the rex, were elected by it on the nomination of the senate.[355] The imperium was conferred upon these persons by a law of the assembly (lex curiata de imperio), which was the Roman method of investing with office. Until the imperium was thus conferred, the person, although the election was complete, could not enter upon his office. The comitia curiata, by appeal, had the ultimate decision in criminal cases involving the life of a Roman citizen. It was by a popular movement that the office of rex was abolished. Although the assembly of the people never acquired the power of originating measures, its powers were real and influential. At this time the people were sovereign.

The assembly had no power to convene itself; but it is said to have met on the summons of the rex, or, in his absence, on that of the praefect (praefectus urbi). In the time of the republic it was convened by the consuls, or, in their absence, by the praetor; and in all cases the person who convened the assembly presided over its deliberations.

In another connection the office of rex has been considered. The rex was a general and also a priest, but without civil functions, as some writers have endeavored to imply.[356] His powers as a general, though not defined, were necessarily absolute over the military forces in the field and in the city. If he exercised any civil powers in particular cases, it must be supposed that they were delegated for the occasion. To pronounce him a king, as that term is necessarily understood, is to vitiate and mis-describe the popular government to which he belonged, and the institutions upon which it rested. The form of government under which the rex and basileus appeared is identified with gentile institutions and disappeared after gentile society was overthrown. It was a peculiar organization having no parallel in modern society, and is unexplainable in terms adapted to monarchical institutions. A military democracy under a senate, an assembly of the people, and a general of their nomination and election, is a near, though it may not be a perfect, characterization of a government so peculiar, which belongs exclusively to ancient society, and rested on institutions essentially democratical. Romulus, in all probability, emboldened by his great successes, assumed powers which were regarded as dangerous to the senate and to the people, and his assassination by the Roman chiefs is a fair inference from the statements concerning his mysterious disappearance which have come down to us. This act, atrocious as it must be pronounced, evinces that spirit of independence, inherited from the gentes, which would not submit to arbitrary individual power. When the office was abolished, and the consulate was established in its place, it is not surprising that two consuls were created instead of one. While the powers of the office might raise one man to a dangerous height, it could not be the case with two. The same subtlety of reasoning led the Iroquois, without original experience, to create two war-chiefs of the confederacy instead of one, lest the office of commander-in-chief, bestowed upon a single man, should raise him to a position too influential.

In his capacity of chief priest the rex took the auspices on important occasions, which was one of the highest acts of the Roman religious system, and in their estimation quite as necessary in the field on the eve of a battle as in the city. He performed other religious rites as well. It is not surprising that in those times priestly functions are found among the Romans, as among the Greeks, attached to or inherent in the highest military office. When the abolition of this office occurred, it was found necessary to vest in some one the religious functions appertaining to it, which were evidently special; whence the creation of the new office of rex sacrificulus, or rex sacrorum, the incumbent of which performed the religious duties in question. Among the Athenians the same idea reappears in the second of the nine archons, who was called archon basileus, and had a general supervision of religious affairs. Why religious functions were attached to the office of rex and basileus, among the Romans and Greeks, and to the office of Teuctli among the Aztecs; and why, after the abolition of the office in the two former cases, the ordinary priesthoods could not perform them, has not been explained.

Thus stood Roman gentile society from the time of Romulus to the time of Servius Tullius, through a period of more than two hundred years, during which the foundations of Roman power were laid. The government, as before remarked, consisted of three powers, a senate, an assembly of the people, and a military commander. They had experienced the necessity for definite written laws to be enacted by themselves, as a substitute for usages and customs. In the rex they had the germinal idea of a chief executive magistrate, which necessity pressed upon them, and which was to advance into a more complete form after the institution of political society. But they found it a dangerous office in those times of limited experience in the higher conceptions of government, because the powers of the rex were, in the main, undefined, as well as difficult of definition. It is not surprising that when a serious controversy arose between the people and Tarquinius Superbus, they deposed the man and abolished the office. As soon as something like the irresponsible power of a king met them face to face it was found incompatible with liberty and the latter gained the victory. They were willing, however, to admit into the system of government a limited executive, and they created the office in a dual form in the two consuls. This occurred after the institution of political society.

No direct steps were taken, prior to the time of Servius Tullius, to establish a state founded upon territory and upon property; but the previous measures were a preparation for that event. In addition to the institutions named, they had created a city magistracy, and a complete military system, including the institution of the equestrian order. Under institutions purely gentile Rome had become, in the time of Servius Tullius, the strongest military power in Italy.

Among the new magistrates created, that of warden of the city (custos urbis) was the most important. This officer, who was chief of the senate (princeps senatus), was, in the first instance, according to Dionysius, appointed by Romulus.[357] The senate, which had no power to convene itself, was convened by him. It is also claimed that the rex had power to summon the senate. That it would be apt to convene upon his request, through the call of its own officer, is probable; but that he could command its convocation is improbable, from its independence in functions, from its dignity, and from its representative character. After the time of the Decemvirs the name of the office was changed to præfect of the city (præfectus urbi), its powers were enlarged, and it was made elective by the new comitia centuriata. Under the republic, the consuls, and in their absence, the praetor, had power to convene the senate, and also to hold the comitia. At a later day, the office of praetor (praetor urbanus) absorbed the functions of this ancient office and became its successor. A judicial magistrate, the Roman praetor was the prototype of the modern judge. Thus, every essential institution in the government or administration of the affairs of society may generally be traced to a simple germ, which springs up in a rude form from human wants, and, when able to endure the test of time and experience, is developed into a permanent institution.

A knowledge of the tenure of the office of chief, and of the functions of the council of chiefs, before the time of Romulus, could they be ascertained, would reflect much light upon the condition of Roman gentile society in the time of Romulus. Moreover, the several periods should be studied separately, because the facts of their social condition were changing with their advancement in intelligence. The Italian period prior to Romulus, the period of the seven reges, and the subsequent periods of the republic and of the empire are marked by great differences in the spirit and character of the government. But the institutions of the first period entered into the second, and these again were transmitted into the third, and remained with modifications in the fourth. The growth, development and fall of these institutions embody the vital history of the Roman people. It is by tracing these institutions from the germ through their successive stages of growth, on the wide scale of the tribes and nations of mankind, that we can follow the great movements of the human mind in its evolution from its infancy in savagery to its present high development. Out of the necessities of mankind for the organization of society came the gens; out of the gens came the chief, and the tribe with its council of chiefs; out of the tribe came by segmentation the group of tribes, afterwards re-united in a confederacy, and finally consolidated by coalescence into a nation; out of the experience of the council came the necessity of an assembly of the people with a division of the powers of the government between them; and finally, out of the military necessities of the united tribes came the general military commander, who became in time a third power in the government, but subordinate to the two superior powers. It was the germ of the office of the subsequent chief magistrate, the king and the president. The principal institutions of civilized nations are simply continuations of those which germinated in savagery, expanded in barbarism, and which are still subsisting and advancing in civilization.

As the Roman government existed at the death of Romulus, it was social, and not political; it was personal, and not territorial. The three tribes were located, it is true, in separate and distinct areas within the limits of the city; but this was the prevailing mode of settlement under gentile institutions. Their relations to each other and to the resulting society, as gentes, curiæ and tribes, were wholly personal, the government dealing with them as groups of persons, and with the whole as the Roman people. Localized in this manner within inclosing ramparts, the idea of a township or city ward would suggest itself when the necessity for a change in the plan of government was forced upon them by the growing complexity of affairs. It was a great change that was soon to be required of them, to be wrought out through experimental legislation—precisely the same which the Athenians had entered upon shortly before the time of Servius Tullius. Rome was founded, and its first victories were won under institutions purely gentile; but the fruits of these achievements by their very magnitude demonstrated the inability of the gentes to form the basis of a state. But it required two centuries of intense activity in the growing commonwealth to prepare the way for the institution of the second great plan of government based upon territory and upon property. A withdrawal of governing powers from the gentes, curiæ and tribes, and their bestowal upon new constituencies was the sacrifice demanded. Such a change would become possible only through a conviction that the gentes could not be made to yield such a form of government as their advanced condition demanded. It was practically a question of continuance in barbarism, or progress into civilization. The inauguration of the new system will form the subject of the next chapter.