§ 3.: Stages of Roman Legal History—The Clan and the Family—Evolution of individual rights.

We may now attempt to treat in greater detail the stages of Roman Legal History which we have outlined. The earliest stage—that marked by the independent or almost independent life of the Clan or Gens—is one for which, by the nature of the case, no definite historical evidence exists. The reality of such a life is merely an inference drawn from the characteristics of the Gens as it appears before us in the historical period. These characteristics seem to prove that the Gens is not a really primitive institution, but a late and advanced stage in the social development of the Latin races; but, on the other hand, they may show that it was in many respects a more primitive unit than the State; that is, that it exercised rights and duties which were ultimately exercised by the State. No political society worthy of the name can deal with Clans as the subjects of rights; it can deal only with Families or Individuals. Hence, if the Roman Gens ever lived a strong corporate life, the authority of the Roman State must in those days have been weak.

The organization of the Gens was based on the patriarchal idea in its extreme form: that is, on the conception that relationship is only binding when it can be traced through the male line. And this is the fact which seems to prove that the Gens marks a late and mature stage in the development of Latin societies; for the patriarchal idea is not one that is readily grasped by the mind of primitive man. Yet, late as the Gens is when considered in reference to the prehistoric development of the Latin race, it perhaps possessed, before the very dawn of history, a unity and power of its own, of which but pale reflections survive in the historical period. In historical times the only test of unity was the common name borne by the Gentiles; the chief signs of corporate action were their guardianship of the insane and their reversionary right of guardianship over women and children — powers which the Gentiles must have Edition: current; Page: [xiii] exercised by delegating their authority to a personal representative. The further right which they possessed in later times, of succeeding to intestate inheritances in the last resort, was perhaps a right possessed by individual members of the corporation rather than by the corporation itself. But a corporate activity far greater than this has been suspected for earlier times. There is indirect evidence that all Private Land (Ager Privatus) was at one time owned by the Gentes, not by families or individuals, and the view that the primitive Roman Senate was in some way representative of the Gentes is in accordance with the belief of Roman antiquity. The fact that the primitive Roman State was in many ways conditioned by its clan organization seems to be certain. As the State grew stronger, it substituted the Family for the Clan. Between the two there is only a difference of degree. The Family (Familia) is the aggregate of the members of a household under a common head, the Paterfamilias; whereas the Gens is the aggregate of all individuals who bear a common name and who, therefore, if their ancestry could be traced in the male line through all its stages, would be found to be the descendants of some ultimate common ancestor. But the Familia is a far smaller, and therefore a far less powerful, unit than the Gens. It cannot so effectively dominate the State or impede its activities. Again, the heads of families are many in number; the heads of the Gentes (who must have existed at the time when the Gens was the important unit) were necessarily few. The State which deals with families deals with a multitude of individuals, not with an oligarchy representing the interests of a number of corporations. The conception of individual rights, in their modern sense, was, it is true, never fully recognized in Roman Private Law. It was impeded by the Patria Potestas—the life-long power of the father over the son. But much was ultimately done to lessen the rigour of this patriarchal rule; and the principles of Roman Law were finally extended to races which knew nothing of the Patria Potestas. This law ultimately gave the most perfect expression hitherto witnessed by the world of rights which were both universal and individual. The existence of the Empire gave Rome the power, possessed in as high a degree by no other State, of dealing with the individual on universal lines, because she was not hampered by the barriers between man and man thrown up by separate national institutions.