How the state developed, with some of the organs of the gentile 
constitution being transformed, some displaced, by the intrusion 
of new organs, and, finally, all superseded by real state au- 
thorities—while the place of the actual “people in arms” 
defending themselves through their gentes, phratries and tribes 
was taken by an armed “public power” at the service of these state 
authorities and, therefore, also usable against the people—all this 
can nowhere be better traced, at least in its initial stage, than in 
ancient Athens. The changes in form are, in the main, described 
by Morgan; the economic content which gave rise to them I had 
largely to add myself. 

In the Heroic Age, the four tribes of the Athenians were still 
installed in separate parts of Attica. Even the twelve phratries 
comprising them seem still to have had separate seats in the twelve 
towns of Cecrops. The constitution was that of the Heroic Age: a 
popular assembly, a popular council, a basileus. As far back as 
written history goes we find the land already divided up and 
transformed into private property, which corresponds with the 
relatively developed commodity production and the commodity 
trade that went with it towards the end of the higher stage of 
barbarism. In addition to cereals, wine and oil were produced. 
Maritime commerce on the Aegean Sea passed more and more 
from Phoenician into Attic hands. As a result of the purchase and 
sale of landed property and the advancing division of labour 
between agriculture and handicrafts, trade and navigation, the 
members of gentes, phratries and tribes very soon intermingled. 
The districts of the phratry and the tribe received inhabitants who, 
although they were fellow countrymen, did not belong to these 
bodies and, therefore, were outsiders in their own place of abode. 
For in times of calm every phratry and every tribe administered its 
own affairs without consulting the popular council or the basileus 
in Athens. But inhabitants of the area of the phratry or tribe not 

16* 

belonging to either naturally could not take part in this 
administration. 

This disturbed the normal functioning of the organs of the gen- 
tile constitution so much that a remedy was needed as far back as the 
Heroic Age. A constitution, attributed to Theseus, was introduced. 
The main feature of this change was the institution of a central 
administration in Athens, i.e., some of the affairs that hitherto had 
been administered independently by the tribes were declared to be 
common affairs and transferred to a general council sitting in 
Athens. Thereby, the Athenians went a step further than any 
indigenous people in America had ever gone: the simple confeder- 
acy of neighbouring tribes was now supplanted by their coales- 
cence into one single people. This gave rise to a general Athenian 
popular law, which stood above the legal customs of the tribes and 
gentes. It bestowed on the citizens of Athens, as such, certain 
rights and additional legal protection even in territory where they 
were aliens. This, however, was the first step towards undermining 
the gentile constitution; for it was the first step towards the— 
subsequent admission of citizens who were alien to all the Attic 
tribes and were and remained entirely outside the pale of the 
Athenian gentile constitution. A second institution attributed to 
Theseus was the division of the entire people, irrespective of 
gentes, phratries and tribes, into three classes: eupatrides, or 
nobles; geomoroi, or tillers of the land; and demiurgi, or artisans, 
and the granting to the nobles of the exclusive right to public 
office. True, apart from reserving for the nobles the right to hold 
public office, this division had no effect, as it created no other 
legal distinctions between the classes.* It is important, however, 
because it reveals to us the new social elements that had quietly 
developed. It shows that the customary holding of office in the 
gens by certain families had already developed into an entitlement 
of these families that was little contested; that these families, 
already powerful owing to their wealth, began to unite outside of 
their gentes into a privileged class of their own; and that the 
nascent state sanctified this presumptuousness. It shows, further- 
more, that the division of labour between husbandmen and 
artisans had already become strong enough to call into question, in 
the social sense, the supremacy of the old division into gentes and 
tribes. And finally, it proclaimed the irreconcilable antagonism 
between gentile society and the state. The first attempt to form a 
state consisted in breaking up the gentes by dividing the members 

4 In the 1884 edition the end of the sentence reads: ‘as the two other classes 
got no special rights”.— Ed. 

Origin of the Family, Private Property and State 215 

of each into a privileged and an inferior class, and the latter again 
into two vocational classes, thus setting one against the other. 

The ensuing political history of Athens up to the time of Solon 
is only incompletely known. The office of basileus fell into disuse; 
archons, elected from among the nobility, became the heads of the 
state. The rule of the nobility steadily increased until, round about 
600 B.C., it became unbearable. The principal means for stifling 
common liberty were—money and usury. The nobility lived 
mainly in and around Athens, where maritime commerce, with 
occasional piracy still as a sideline, enriched it and concentrated 
monetary wealth in its hands. From this point the developing 
money system penetrated like corroding nitric acid into the 
traditional life of the rural communities founded on the natural 
economy. The gentile constitution is absolutely incompatible with 
the money system. The ruin of the Attic small-holding peasants 
coincided with the loosening of the old gentile bonds that 
protected them. Creditor’s bills and mortgage bonds—for by then 
the Athenians had also invented the mortgage—respected neither 
the gens nor the phratry. But the old gentile constitution knew 
nothing of money, credit and monetary debt. Hence the constantly 
expanding money rule of the nobility gave rise to a new body of 
common law to protect the creditor against the debtor and 
sanction the exploitation of the small peasant by the money owner. 
All the fields of Attica bristled with mortgage posts bearing the 
legend that the lot on which they stood was mortgaged to so and 
so for so and so much. The fields that were not so designated had 
for the most part been sold on account of overdue mortgages or 
non-payment of interest and had become the property of the 
noble-born usurers; the peasant was glad if he was permitted to 
remain as a tenant and live on one-sixth of the product of his 
labour while paying ftve-sixths to his new master as rent. More 
than that: if the sum obtained from the sale of the lot did not 
cover the debt, or if such a debt was not secured by a pledge, the 
debtor had to sell his children into slavery abroad in order to 
satisfy the creditor’s claim. The sale of his children by the 
father—such was the first fruit of father right and monogamy! 
And if the blood-sucker was still unsatisfied, he could sell the 
debtor himself into slavery. Such was the pleasant dawn of 
civilisation among the Athenian people. 

Previously, when the conditions of life of the people were still in 
keeping with the gentile constitution, such a revolution would have 
been impossible; but here it had come about nobody knew how. 
Let us return for a moment to our Iroquois. Among them a state 

of affairs like that which had now imposed itself on the Athenians 
without their own doing, so to say, and certainly against their will, 
was inconceivable. There the mode of production of the means of 
subsistence, which, year in and year out, remained unchanged, 
could never give rise to such conflicts, imposed from without, as it 
were; to antagonism between rich and poor, between exploiters 
and exploited. The Iroquois were still far from controlling the 
forces of nature but within the limits set for them by nature they 
were masters of their production. Apart from poor harvests in 
their little gardens, the exhaustion of the fish stocks in their lakes 
and rivers, or of game in their forests, they knew what the out- 
come would be of their mode of gaining a livelihood. The outcome 
would be: means of sustenance, meagre or abundant; but it could 
never be unpremeditated social upheavals, the severing of gentile 
bonds, or the splitting of the members of gentes and tribes into 
antagonistic classes fighting each other. Production was carried on 
within the most restricted limits, but—the producers exercised 
control over their own product. This was the immense advantage 
of barbarian production that was lost with the advent of 
civilisation; and to win it back on the basis of the enormous 
control man now exercises over the forces of nature, and of the 
free association that is now possible, will be the task of the next 
generations. 

Not so among the Greeks. The appearance of private property 
in herds and articles of luxury led to exchange between 
individuals, to the transformation of products into commodities. 
Here lies the root of the entire revolution that followed. As soon 
as producers no longer directly consumed their product, but 
surrendered it in the course of exchange, they lost control over it. 
They no longer knew what became of it, and the possibility arose 
that the product might some day be turned against the producer, 
used as a means of exploiting and oppressing him. Hence, no society 
can for long remain master of its own production and continue to 
control the social effects of its production process, unless it abolishes 
exchange between individuals. 

The Athenians were to learn, however, how quickly after 
individual exchange is established and products are converted into 
commodities, the product brings to bear its rule over the 
producer. With the production of commodities came the tilling of 
the soil by individual cultivators for their own account, soon 
followed by individual ownership of the land. There also came 
money, that universal commodity for which all others could be 
exchanged. But when men invented money they little suspected 

Origin of the Family, Private Property and State 217 

that they were creating a new social power, the one universal 
power to which the whole of society must bow. It was this new 
power, suddenly sprung into existence without the knowledge or 
will of its own creators, which, in all the brutality of its youth, 
exposed the Athenians to its rule. 

What was to be done? The old gentile organisation had not only 
proved impotent against the triumphant march of money; it was 
also absolutely incapable of even providing a place within its 
framework for such things as money, creditors, debtors and the 
forcible collection of debts. But the new social power was there, 
and neither pious wishes nor a longing for the return of the good 
old times could drive money and usury out of existence. 
Moreover, a number of other, minor breaches had been made in 
the gentile constitution. The indiscriminate mingling of the 
gentiles and phrators throughout the whole of Attica, and 
especially in the city of Athens itself, had increased from 
generation to generation, in spite of the fact that an Athenian, 
while allowed to sell plots of land out of his gens, was still 
prohibited from thus selling his dwelling. The division of labour 
between the different branches of production—agriculture, hand- 
icrafts, numerous skills within the various crafts, trade, navigation, 
etc.—had developed more and more fully with the progress of 
industry and commerce. The population was now divided accord- 
ing to occupation into rather well-established groups, each of 
which had a number of new, common interests that found no 
place in the gens or phratry and, therefore, necessitated the 
creation of new offices to attend to them. The number of slaves 
had increased considerably and must have far exceeded that of the 
free Athenians even then. The gentile constitution originally knew 
no slavery and, therefore, no means of holding this mass of 
bondsmen in check. And finally, commerce had attracted a great 
many outsiders to Athens who settled there because it was easier 
to make money there, and according to the old constitution these 
outsiders enjoyed neither rights nor the protection of the law. In 
spite of traditional toleration, they remained a disturbingly alien 
element among the people. 

In short, the gentile constitution was coming to an end. Society 
was outgrowing it by the day; it was powerless to allay or check 
even the worst evils that were arising under its very eyes. In the 
meantime, however, the state had developed. The new groups 
formed by division of labour, first between town and country, then 
between the various branches of urban industry, had created new 
organs to protect their interests. Public offices of every description 

had been instituted. And then the young state needed, above all, 
its own fighting forces, which among the seafaring Athenians 
could at first be only naval forces, to be used for occasional minor 
wars and to protect merchant vessels. At some uncertain time 
before Solon, the naucraries were instituted, small territorial 
districts, twelve in each tribe. Every naucrary had to supply, equip 
and man a war vessel and, in addition, provided two horsemen. 
This arrangement was a twofold attack on the gentile constitution. 
First, it created a public power which was no longer simply 
identical with the armed people in their totality; secondly, for the 
first time it divided the people for public purposes, not according 
to kinship groups, but according to common domicile. We shall see 
what this signified. 

As the gentile constitution could not come to the assistance of 
the exploited people, they could look only to the emerging state. 
And the state brought help in the form of the constitution of 
Solon, while at the same time strengthening itself anew at the 
expense of the old constitution. Solon—the manner in which his 
reform of 594 B.C. was carried out does not concern us 
here—started the series of so-called political revolutions by an 
encroachment on property. All revolutions to date have been 
revolutions for the protection of one kind of property against 
another kind of property. They cannot protect one kind without 
violating another. In the Great French Revolution feudal property 
was Sacrificed in order to save bourgeois property; in Solon’s 
revolution, creditors’ property had to suffer for the benefit of 
debtors’ property. The debts were simply annulled. We are not 
acquainted with the exact details, but Solon boasts in his poems 
that he removed the mortgage posts from the encumbered lands 
and enabled all who had been sold or had fled abroad because of 
debt to return home. This could have been done only by openly 
violating property rights. And indeed, the object of all so-called 
political revolutions, from first to last, was to protect one kind of 
property by confiscating—also called stealing— another kind of 
property. This is so true that for 2,500 years it has been possible 
to maintain private property only by violating property rights. 

But now a way had to be found to prevent such re-enslavement 
of the free Athenians. This was first achieved by general 
measures; for example, the prohibition of contracts which involved 
the mortgaging of the debtor’s person. Furthermore, a maximum 
was fixed for the amount of landed property any one individual 
could own, in order to put some curb, at least, on the voracious 
craving of the nobility for the peasants’ land. Then followed 

Origin of the Family, Private Property and State 219 

constitutional amendments, of which the most important for us 
are the following: 

The council was increased to four hundred members, one 
hundred from each tribe. Here, then, the tribe was still the basis. 
But this was the only side of the old constitution that was 
incorporated in the new body politic. For the rest, Solon divided 
the citizens into four classes, according to the amount of land 
owned and its yield. Five hundred, three hundred and one 
hundred and fifty medimni of grain (1 medimnus=appr. 41 litres) 
were the minimum yields for the first three classes; whoever had 
less land or none at all belonged to the fourth class. Only 
members of the first three classes could hold office; the highest 
offices were filled exclusively by the first class. The fourth class 
had only the right to speak and vote in the popular assembly. But 
it was here that all officials were elected, here that they had to give 
account of their actions, here that all the laws were made, and 
here that the fourth class was in the majority. The aristocratic 
privileges were partly renewed in the form of privileges of wealth, 
but the people retained the decisive power. The four classes also 
formed the basis for the reorganisation of the fighting forces. The 
first two classes furnished the cavalry; the third had to serve as 
heavy infantry; the fourth served as light infantry, without 
armour, or in the navy, in which case they probably were paid. 

Thus, an entirely new element was introduced into the 
constitution: private ownership. The rights and duties of the 
citizens of the state were graded according to the amount of land 
they owned; and as the propertied classes gained influence the old 
consanguine groups were displaced. The gentile constitution 
suffered another defeat. 

The gradation of political rights according to property, however, 
was not an indispensable institution for the state. Important as it 
may have been in the constitutional history of states, nevertheless, 
a good many states, and the most developed at that, did with- 
out it. Even in Athens it played only a transient role. From the 
time of Aristides, all offices were open to all the citizens.’”’ 

During the next eighty years Athenian society gradually found 
its way to the path along which it continued to develop in 
subsequent centuries. Usurious land operations, rampant in the 
pre-Solon period, were checked, as was the excessive concentration 
of landed property. Commerce and the arts and crafts conducted 
on an ever-increasing scale with slave labour became the predom- 
inant branches of industry. People became more enlightened. 
Instead of exploiting their own fellow-citizens in the old brutal 

manner, the Athenians now exploited mainly the slaves and 
non-Athenian clients. Movable property, wealth in money, slaves 
and ships, increased more and more; but instead of being simply a 
means for acquiring landed property, as in the initial, bigoted 
period, they became an end in themselves. This, on the one hand, 
gave rise to the successful competition of the new, wealthy 
industrial and commercial class against the old power of the 
nobility, but, on the other hand, it deprived the remnants of the 
old gentile constitution of their last foothold. The gentes, phratries 
and tribes, whose members were now scattered all over Attica and 
lived completely intermingled, thus became quite unsuitable for 
political bodies. A large number of Athenian citizens did not 
belong to any gens; they were immigrants who had been adopted 
into citizenship sure enough but not into any of the old bodies of 
consanguinei. Besides, there was a steadily increasing number of 
foreign immigrants who only enjoyed protection.’” 

Meanwhile, the struggles of the parties proceeded. The nobility 
tried to regain its former privileges and for a short time got the 
upper hand again, until the revolution of Cleisthenes (509 B.C.) 
brought about its ultimate downfall; and with it fell the last 
remnants of the gentile constitution.’ 

In his new constitution, Cleisthenes ignored the four old tribes 
based on the gentes and phratries. Their place was taken by an 
entirely new organisation based exclusively on the division of the 
citizens according to place of abode, already attempted in the 
naucraries. Not membership of a body of consanguinei, but place 
of abode was now the deciding factor. Not people, but territory 
was now divided; politically, the inhabitants became mere adjuncts 
of the territory. 

The whole of Attica was divided into one hundred self- 
governing districts, or demes. The citizens of a deme (demots) 
elected their head (demarch), a treasurer and thirty judges with 
jurisdiction in minor cases. They also received their own temple 
and a tutelary god, or heros, whose priests they elected. The 
supreme power in the deme was the assembly of the demots. This, 
as Morgan correctly remarks, is the prototype of the self- 
governing American township.* The modern state in its highest 
form ends with the very unit with which the rising state in Athens 
began. 

Ten of these units (demes) formed a tribe, which, however, as 
distinct from the old kinship tribe, was now called a territorial 

aL. H. Morgan, Ancient Society, p. 271.— Ed. 

Origin of the Family, Private Property and State 22) 

tribe. The territorial tribe was not only a self-governing political 
body, but also a military body. It elected a phylarch or tribal head, 
who commanded the cavalry, a taxiarch, who commanded the 
infantry, and a strategos, who was in command of the entire 
contingent levied in the tribal territory. Furthermore, it furnished 
five war vessels with crews and commander; and it received an 
Attic heros, by whose name it was called, as its patron saint. Finally, 
it elected fifty councillors to the council of Athens. 

The consummation was the Athenian state, governed by a 
council of five hundred—elected by the ten tribes—and, in the 
last instance, by the popular assembly, which every Athenian 
citizen could attend and vote in. Moreover, archons and other 
officials attended to the different departments of administration 
and the courts. In Athens there was no official possessing supreme 
executive authority. 

By this new constitution, and by the admission of a very large 
number of wards, partly immigrants and partly freed slaves, the 
organs of the gentile constitution were ousted from public affairs. 
They sank to the position of private societies and_ religious 
associations. But their moral influence, the traditional concep- 
tions and views of the old gentile period, were passed on for a 
long time and expired only gradually. This manifested itself in 
another state institution. 

We have seen that an essential feature of the state is a public 
power distinct from the mass of the people. At that time Athens 
possessed only a militia and a navy manned directly by the people. 
These afforded protection against external enemies and held in 
check the slaves who at that time already constituted the great 
majority of the population. For the citizens, this public power at 
first existed only in the shape of the police force, which is as old as 
the state, and that is why the naive Frenchmen of the eighteenth 
century spoke, not of civilised, but of policed nations (nations 
policées). Thus, simultaneously with their state, the Athenians 
established a police force, a veritable gendarmerie of bowmen on 
foot and horseback— Landjager, as they say in South Germany and 
Switzerland. But this gendarmerie consisted—of slaves. The free 
Athenian regarded this dirty work as being so degrading that he 
preferred being arrested by an armed slave rather than perform 
such ignominious acts himself. This was still an expression of the 
old gentile mentality. The state could not exist without a police 
force, but it was still young and did not yet command sufficient 
moral respect to give prestige to an occupation that was bound to 
appear infamous to the old gentiles. 

How well this state, now complete in its main features, suited 
the new social condition of the Athenians was apparent from the 
rapid flourishing of wealth, commerce and industry. The class 
antagonism on which the social and political institutions rested was 
no longer that between the nobles and the common people, but 
that between slaves and freemen, wards and citizens. When Athens 
was in its ‘heyday the total number of free Athenian citizens, 
women and children included, amounted to about 90,000; the 
slaves of both sexes numbered 365,000, and the wards— 
immigrants and freed men—45,000. Thus, for every adult male 
citizen there were at least eighteen slaves and more than two 
wards. The large number of slaves is explained by the fact that 
many of them worked together in manufactories, large rooms, 
under overseers. But with the development of commerce and 
industry came the accumulation and concentration of wealth in 
few hands; the mass of the free citizens were impoverished and 
had to choose between competing with slave labour by going into 
handicrafts themselves, which was considered ignoble and base and, 
moreover, promised little success—and complete pauperisation. 
Under the prevailing circumstances what inevitably happened was 
the latter, and, being in the majority, they dragged the whole 
Athenian state down with them. It was not democracy that caused 
the downfall of Athens, as the European schoolmasters who fawn 
upon royalty would have us believe, but slavery, which brought the 
labour of the free citizen into contempt. 

The emergence of the state among the Athenians represents a 
very typical model of state building in general; because, on the 
one hand, it took place in an entirely pure form, without the 
interference of violence, external or internal (the short period of 
usurpation by Pisistratus left no trace behind it'); because, on the 
other hand, it gave rise to a highly developed form of state, the 
democratic republic, directly from gentile society; and _ lastly, 
because we are sufficiently acquainted with all the essential details. 

VI 
THE GENS AND THE STATE IN ROME 

According to the legend about the foundation of Rome, the first 
settlement was undertaken by a number of Latin gentes (one 
hundred, the legend says) united into one tribe. A Sabellian tribe, 
also said to consist of one hundred gentes, soon followed, and 
finally a third tribe of various elements, again allegedly of one 

Origin of the Family, Private Property and State 223 

hundred gentes, joined them. The whole story reveals at the very 
first glance that there was hardly anything naturally evolved 
except the gens, and that the gens itself, in some cases, was only 
an offshoot of a mother gens still existing in the old habitat. The 
tribes bear the mark of having been artificially constituted; 
nevertheless, they consisted mostly of kindred elements and were 
formed on the model of the old, naturally grown, not artificially 
constituted, tribe; and it is not impossible that an actual old tribe 
formed the nucleus of each of these three tribes. The middle link, 
the phratry, contained ten gentes and was called the curia. Hence, 
there were thirty of them. 

That the Roman gens was an institution identical with the 
Grecian gens is a recognised fact; if the Grecian gens was a more 
advanced form of the social unit the primitive form of which is 
presented by the American Redskins, then the same, naturally, 
holds good for the Roman gens. Hence, we can be briefer in its 
treatment. 

At least during the earliest times of the city, the Roman gens 
had the following constitution: 

1. Mutual right of inheritance of the gentiles; the property 
remained in the gens. Since father right was already in force in 
the Roman gens, as it was in the Grecian gens, the offspring of 
female lineage were excluded. According to the law of the Twelve 
Tables, the oldest written Roman law known to us,'’! the natural 
children had the first title to the estate; in case no natural children 
existed, the agnates (kin of male lineage) took their place; and in 
their absence came the gentiles. In all cases the property remained 
in the gens. Here we observe the gradual infiltration into gentile 
practice of new legal provisions born of increased wealth and 
monogamy: the originally equal right of inheritance of the gentiles 
was first limited in practice to the agnates— probably at an early 
stage, aS mentioned above—and eventually to the children and 
their offspring in the male line. Of course, in the Twelve Tables 
this appears in reverse order. 

2. Possession of a common burial place. The patrician gens 
Claudia, on immigrating to Rome from Regili, was allocated a plot, 
and also a common burial place in the city. Even under Augustus, 
the head of Varus, who had fallen in the Teutoburg Forest,'!? was 
brought to Rome and interred in the gentilitius tumulus*; hence, 
the gens (Quinctilia) still had a separate burial mound.” 

a Burial mound of the gens.— Ed. 

b The end of the sentence from the words “hence, the gens” was added in the 
1891 edition.— Ed. 

3. Common religious celebrations. These, the sacra gentilitia, are 
well known. 

4. Obligation not to marry within the gens. In Rome this does 
not appear to have ever become a written law, but the custom 
remained. Of the innumerable names of Roman married couples 
that have come down to our day there is not a single case where 
husband and wife have the same gentile name. The law of 
inheritance also proves this rule. A woman by her marriage 
forfeited her agnatic rights, left her gens, and neither she nor her 
children could inherit from her father, or his brothers, for 
otherwise the father’s gens would lose part of the inheritance. This 
rule has a meaning only on the assumption that the woman was 
not permitted to marry a member of her own gens. 

5. Possession of land in common. In primeval times this always 
existed since the tribal territory was first divided. Among the 
Latin tribes we find the land partly in the possession of the tribe, 
partly of the gens, and partly of households that at that time 
hardly* represented single families. Romulus is credited with 
having been the first to assign land to individuals, about a hectare 
(two jugera) to each. Nevertheless, even later we still find land in 
the hands of the gentes, not to mention state lands, around which 
turned the whole internal history of the republic. 

6. Obligation of gentiles to protect and assist one another. 
Written history records only paltry remnants of this; from the 
outset the Roman state manifested such superior power that the 
right to redress injury was transferred to it. When Appius 
Claudius was arrested, his whole gens, even his personal enemies, 
went into mourning. At the time of the second Punic War'” the 
gentes united to ransom their fellow gentiles who were in 
captivity; the senate forbade them to do this. 

7. Right to bear the gentile name. This was in force until the 
time of the emperors. Freed men were permitted to assume the 
gentile names of their former masters, but without gentile rights. 

8. Right of adopting outsiders into the gens. This was done by 
adoption into a family (as among the American Indians), which 
brought with it adoption into the gens. 

9. The right to elect and depose chiefs is nowhere mentioned. 
Inasmuch, however, as during the initial period of Rome’s 
existence all offices, from the elective king downward, were filled 
by election or appointment, and as the curiae elected also their 
own priests, we may assume that the same existed in regard to the 

a The 1884 edition has “not necessarily” instead of ‘at that time hardly” .— Ed. 

Origin of the Family, Private Property and State 225 

gentile chiefs (principes)—-no matter how well-established the rule 
of election from one and the same family in the gens may have 
already been. 

Such were the powers of a Roman gens. With the exception of 
the already completed transition to father right, they are the 
faithful image of the rights and duties of an Iroquois gens. Here, 
too, “the Iroquois is unmistakably discerned”’.’ 

Of the confusion” that still reigns even among our most 
authoritative historians on the question of the Roman gentile 
order here only one example: In his treatise on Roman proper 
names of the Republican and Augustinian eras (Rd6mische 
Forschungen, Berlin, 1864, Vol. I), Mommsen writes: 

“The gentile name is not only borne by all male gentiles, including adopted 
persons and wards, except, of course, the slaves, but also by the women.... The 
tribe [Stamm]” (as Mommsen here translates gens) “is ... a community derived from 
a common—actual, assumed or even invented—ancestor and united by common 
rites, burial places and inheritance. All personally free individuals, hence women 
also, may and must be allocated to it. But determining the gentile name of a 
married woman presents some difficulty. This indeed did not exist as long as 
women were prohibited from marrying anyone but members of their own gens; 
and evidently for a long time the women found it much more difficult to marry 
outside the gens than within it. This right, the gentis enuptio, was still bestowed as a 
personal privilege and reward during the sixth century.... But wherever such 
outside marriages occurred the woman in primeval times must have been 
transferred to the tribe of her husband. Nothing is more certain than that by the 
old religious marriage the woman fully joined the legal and sacral community of 
her husband and left her own. Who does not know that the married woman 
forfeits her active and passive right of inheritance in respect to her gentiles, but 
enters the inheritance group of her husband, her children and his gentiles? And if 
her husband adopts her as his child and brings her into his family, how can she 
remain separated from his gens?” (pp. 8-11). 

Thus, Mommsen asserts that Roman women belonging to a 
certain gens were originally free to marry only within their gens; 
the Roman gens, therefore, was endogamous, not exogamous. 
This opinion, which contradicts all experience among other 
peoples, is principally, if not exclusively, based on a single, much 
disputed passage in Livy (Book XXXIX, Ch. 19) according to 
which the senate decreed in the year of the City 568, that is, 
186 B.C., 

uti Feceniae Hispalae datio, deminutio, gentis enuptio, tutoris optio item esset quasi et 
vir testamento dedisset; utique et ingenuo nubere liceret, neu quid ei qui eam duxisset, ob id 
fraudi ignominiaeve esset—that Fecenia Hispala shall have the right to dispose of her 

a “Marx’s Excerpts...”, op. cit., p. 198. The quotation is abridged.— Ed. 

b The text from here to the words “Almost three hundred years after the 
foundation of Rome” (see p. 228) was added in the 1891 edition.— Ed. 

¢ Of marrying outside the gens.— Ed. 

property, to diminish it, to marry outside of the gens, to choose a guardian, just as 
if her (deceased) husband had conferred this right on her by testament; that she 
shall be permitted to marry a freeman and that for the man who marries her this 
shall not constitute a misdemeanour or disgrace. 

Undoubtedly, Fecenia, a freed woman, here obtained permission 
to marry outside of the gens. And it is equally doubtless, according 
to this, that the husband had the right to confer on his wife by 
testament the right to marry outside the gens after his death. But 
outside which gens? 

If a woman had to marry within her gens, as Mommsen 
assumes, then she remained in this gens after her marriage. In the 
first place, however, this assertion that the gens was endogamous 
is the very thing to be proved. In the second place, if the woman 
had to marry in the gens, then naturally the man had to do the 
same, otherwise he could never get a wife. Then we arrive at a 
state where a man could by testament confer on his wife a right 
which he did not possess himself for his own enjoyment; we arrive 
at a legal absurdity. Mommsen realises this, and therefore 
conjectures: 

“Marriage outside of the gens most probably required in law not only the 
consent of the person authorised, but of all members of the gens” (p. 10, note). 

First, this is a very bold assumption; and second, it contradicts 
the clear wording of the passage. The senate gives her this right as 
her husband’s proxy; it expressly gives her no more and no less than 
her husband could have given her; but what it does give is an 
absolute right, not dependent on any other restriction, so that, if 
she should make use of it, her new husband shall not suffer in 
consequence. The senate even instructs the present and future 
consuls and praetors to see that she suffers no hardship from the 
use of this right. Mommsen’s supposition, therefore, appears to be 
absolutely inadmissible. 

Then again: suppose a woman married a man from another 
gens, but remained in the gens into which she was born. 
According to the passage quoted above, her husband would then 
have the right to permit his wife to marry out of her own gens. 
That is, he would have the right to make provisions in regard to 
the affairs of a gens to which he did not belong at all. The thing is 
so utterly absurd that we need say no more about it. 

Nothing remains but to assume that in her first marriage the 
woman wedded a man from another gens and thereby became 
without more ado a member of her husband’s gens, which 

4 [Titus Livius] Titi Livi ab urbe condita libri, pp. 36-37.— Ed. 

Origin of the Family, Private Property and State 227 

Mommsen actually admits for such cases. Then the whole matter 
at once explains itself. The woman, torn from her old gens by her 
marriage, and adopted into the new gentile group of her husband 
occupies a quite special position there. She is now a gentile, but 
not akin by blood; the manner in which she was adopted excludes 
from the outset all prohibition of her marrying within the gens 
into which she has entered by marriage. She has, moreover, been 
adopted into the marriage group of the gens and on her 
husband’s death inherits some of his property, that is to say, the 
property of a fellow member of the gens. What is more natural 
than that this property should remain in the gens and that she 
should be obliged to marry a member of her first husband’s gens 
and no other? If, however, an exception is to be made, who is 
more competent to authorise this than the man who bequeathed 
this property to her, her first husband? At the time he bequeathed 
a part of his property to her and simultaneously gave her 
permission to transfer this part of property to another gens by 
marriage, or as a result of marriage, this property still belonged to 
him; hence he was literally only disposing of his own property. As 
for the woman and her relation to her husband’s gens, it was the 
husband who, by an act of his own free will—the marriage— 
introduced her into his gens. Thus, it appears quite natural, too, 
that he should be the proper person to authorise her to leave this 
gens by another marriage. In short, the matter appears simple and 
obvious as soon as we discard the strange conception of an 
endogamous Roman gens and, with Morgan, regard it as having 
originally been exogamous. 

Finally, there is still another assumption, which has also found 
its advocates, and probably the most numerous, namely, that the 
passage only means 

“that freed slave girls (libertae) cannot, without special permission, e gente 
enubere” (marry outside the gens) “or take any step which, being connected with 
capitis deminutio minima, would result in the liberta leaving the gentile group.” 
(Lange, Rémische Alterthiimer, Berlin, 1856, I, p. 195, where the passage we have 
taken from Livy is commented on in a reference to Huschke.>) 

If this assumption is correct, the passage proves still less as 
regards the status of free-born Roman women, and there is so 
much less ground for speaking of their obligation to marry within 
the gens. 

a Restriction of civil rights.— Ed. 
b Lange refers to Ph. Huschke’s De Privilegiis Feceniae Hispalae senatusconsulto 
concessts (XXXIX, 19).— Ed. 

The expression enuptio gentis occurs only in this single passage 
and is not found anywhere else in the whole of Roman literature. 
The word enubere, to marry outside, is found only three times, also 
in Livy, and not in reference to the gens. The fantastic idea that 
Roman women were permitted to marry only within their gens 
owes its existence solely to this single passage. But it cannot be 
sustained in the least; for either the passage refers to special 
restrictions for freed women, in which case it proves nothing for 
free-born women (ingenuae); or it applies also to free-born 
women, in which case it rather proves that the women as a rule 
married outside their gens and were by their marriage transferred 
to their husbands’ gentes. Hence it speaks against Mommsen and 
for Morgan. 

Almost three hundred years after the foundation of Rome the 
gentile bonds were still so strong that a patrician gens, the Fabians, 
with permission from the senate, was able to undertake off its own 
back an expedition against the neighbouring town of Veji. Three 
hundred and six Fabians are said to have set out and to have been 
killed in an ambush. A single boy, left behind, propagated the 
gens. 

As we have said, ten gentes formed a phratry, which here was 
called a curia, and was endowed with more important social 
functions than the Grecian phratry. Every curia had its own 
religious practices, sacred relics and priests. The latter in a body 
formed one of the Roman colleges of priests. Ten curiae formed a 
tribe, which probably had originally its own elected chief — military 
chief and high priest—like the rest of the Latin tribes. The three 
tribes together formed the Roman people, the populus Romanus. 

Thus, only those could belong to the Roman people who were 
members of a gens, and hence of a curia and tribe. The first 
constitution of this people was as follows. Public affairs were 
conducted at first by the senate composed, as Niebuhr was the 
first to state correctly, of the chiefs of the three hundred gentes’*; 
precisely for this reason, as the elders of the gentes, they were 
called fathers, patres, and, as a body, senate (council of elders, 
from senex, old). Here too the customary choice of men always 
from the same family in each gens brought into being the first 
hereditary nobility. These families called themselves patricians and 
claimed the exclusive right to the seats in the senate and to all 
other offices. The fact that in the course of time the people 
acquiesced this claim so that it became an actual right is expressed 

a B. G. Niebuhr, Rémische Geschichte, Part 1, p. 352.— Ed. 

Origin of the Family, Private Property and State 229 

in the legend that Romulus bestowed the rank of patrician and its 
privileges on the first senators and their descendants. The senate, 
like the Athenian boulé, had power to decide in many affairs 
and to undertake the preliminary discussion of more important 
matters, especially of new laws. These were decided by the popular 
assembly, called comitia curiata (assembly of curiae). The assem- 
bled people were grouped by curiae, in each curia probably by 
gentes, and in decision-making each of the thirty curiae had one 
vote. The assembly of curiae adopted or rejected all laws, elected 
all higher officials including the rex (so-called king), declared war 
(but the senate concluded peace), and decided as a supreme court, 
on appeal of the parties, all cases involving capital punishment for 
Roman citizens.—Finally, by the side of the senate and the 
popular assembly stood the rex, corresponding exactly to the 
Grecian basileus, and by no means such an almost absolute 
monarch as Mommsen depicts him.* The rex also was military 
commander, high priest and presiding officer of certain courts. 
He had no civil functions, or any power over life, liberty and 
property of the citizens whatever, except such as resulted from his 
disciplinary power as military commander or from his power to 
execute sentence as presiding officer of the court. The office of 
rex was not hereditary; on the contrary, he was first elected, 
_ probably on the nomination of his predecessor, by the assembly of 
curiae and then solemnly invested by a second assembly. That he 
could also be deposed is proved by the fate of Tarquinius 
Superbus. 

Like the Greeks in the Heroic Age, the Romans at the time of 
the so-called kings lived in a military democracy based on gentes, 
phratries and tribes, from which it developed. Even though the 
curiae and tribes may have been partly artificial formations, they 
were moulded after the genuine and naturally evolved models of 
the society from which they emerged and which still surrounded 
them on all sides. And though the naturally evolved patrician 

* The Latin rex is equivalent to the Celtic-Irish righ (tribal chief) and the 
Gothic reiks. That this, like our First (English first and Danish férste), originally 
signified gentile or tribal chief is evident from the fact that the Goths in the fourth 
century already had a special term for the king of later times, the military chief of 
a whole people, namely, thiudans. In Ulfila’s translation of the Bible Artaxerxes and 
Herod are never called reiks but thiudans, and the realm of the Emperor Tiberius 
not reiki, but thiudinassus. In the name of the Gothic thiudans, or, as we inaccurately 
translate it, king Thiudareiks, Theodorich, that is, Dietrich, the two names merge 
together. 

4 Th. Mommsen, Romische Geschichte, Vol. 1, Book 1, Ch. 6.— Ed. 

nobility had already gained ground, though the reges attempted 
gradually to extend their powers—this does not change the 
original fundamental character of the constitution, and this alone 
matters. 

Meanwhile, the population of the city of Rome and of the 
Roman territory, enlarged by conquest, increased, partly by 
immigration, partly through the inhabitants of the subjugated, 
mostly Latin, districts. All these new subjects of the state (we leave 
out the question of the clients) were outside of the old gentes, 
curiae and tribes, and so were not part of the populus Romanus, the 
Roman people proper. They were personally free, could own 
landed property, had to pay taxes and were liable to military 
service. But they were not eligible for office and could neither 
participate in the assembly of curiae nor in the distribution of 
conquered state lands. They constituted the plebs, excluded from 
all public rights. Owing to their continually increasing numbers, 
their military training and armament, they became a menace to 
the old populus who had now firmly closed their ranks against any 
growth from the outside. The landed property, moreover, seems 
to have been fairly evenly divided between populus and _ plebs, 
while the mercantile and industrial wealth, though as yet not very 
developed, may have been mainly in the hands of the plebs. 

In view of the large measure of obscurity that enshrouds the 
whole legendary primeval history of Rome—an obscurity consid- 
erably further intensified by the rationalistic-pragmatic attempts at 
interpretation and reports of later legally trained authors whose 
works serve us as source material—it is impossible to make any 
definite statements about the time, the course and the cause of the 
revolution that put an end to the old gentile constitution. The only 
thing we are certain of is that its cause lay in the conflicts between 
the plebs and the populus. 

The new constitution, attributed to rex Servius Tullius and 
based on the Grecian model, more especially that of Solon, created 
a new popular assembly including or excluding all, populus and 
plebeians without distinction, according to whether they rendered 
military service or not. The whole male population liable to 
military service was divided into six classes, according to wealth. 
The minimum property qualifications for each of the first five 
classes were, respectively: I, 100,000 asses; II, 75,000 asses; III, 
50,000 asses; IV, 25,000 asses; V, 11,000 asses; which, according 
to Dureau de la Malle, is equal to about 14,000, 10,500, 7,000, 
3,600 and 1,570 marks, respectively.''* The sixth class, the 
proletarians, consisted of those who possessed less and were 

Origin of the Family, Private Property and State 231 

exempt from military service and taxation. In the new popular 
assembly of centuriae (comitia centuriata) the citizens formed ranks 
after the manner of soldiers, in companies of one hundred 
(centuria), and each centuria had one vote. The first class placed 
80 centuriae in the field; the second 22, the third 20, the fourth 
22, the fifth 30 and the sixth, for propriety’s sake, one. To these 
one must add 18 centuriae of horsemen composed of the wealthiest 
of all; altogether 193. For a majority 97 votes were required. But 
the horsemen and the first class alone had together 98 votes, thus 
being in the majority; when they were agreed, valid decisions were 
made without even asking the other classes. 

Upon this new assembly of centuriae there now devolved all the 
political rights of the former assembly of curiae (a few nominal 
ones excepted); the curiae and the gentes composing them were 
thereby, as was the case in Athens, degraded to the position of 
mere private societies and religious associations, and as such they 
continued to vegetate for a long time, while the assembly of curiae 
soon ceased to exist. In order to displace also the three old gentile 
tribes from the state, four territorial tribes were introduced, each 
tribe inhabiting one quarter of the city and receiving certain political 
rights. 

Thus, in Rome too, the old social order based on personal blood 
ties was destroyed even before the abolition of the so-called 
kingdom, and a new constitution, based on territorial division and 
differences in wealth, a real state constitution, took its place. Public 
power here was vested in the citizenry lable to military service, 
and was directed not only against the slaves, but also against the 
so-called proletarians, who were excluded from military service 
and the right to carry arms. 

The new constitution was merely further developed upon the ex- 
pulsion of Tarquinius Superbus, the last rex, who had usurped real 
royal power, and the replacement of the rex with two military 
commanders (consuls) having equal authority (as among the 
Iroquois). Within this constitution moved the whole history of the 
Roman republic with all its struggles between patricians and 
plebeians for access to office and a share in the state lands and the 
final dissolution of the patrician nobility in the new class of big 
land and money owners, who gradually absorbed all the land of 
the peasants ruined by military service, cultivated with the aid of 
slaves the enormous tracts thus created, depopulated Italy, and 
thus opened the gates not only to imperial rule, but also to its 
successors, the German barbarians. 

Vil