At the beginning of Livy’s second book, we read that, in the year 509 BC, after he had overthrown the last Tarquin king, Lucius Iunius Brutus established the consulship, already replete, as Livy describes it, with the trappings that would distinguish its holders centuries later. Next, by returning its number to three hundred, he repopulated and re-empowered the Senate (Livy 2.1-8). We then go on to read of the very orderly process by which Brutus’ consular colleague, Lucius Tarquinius Collatinus, was persuaded by the remarkable entreaties of his friends and family to leave the city, as the people could not be convinced that a man so named did not harbour plans of becoming king. Finally we read of the election, in the comitia centuriata, of Publius Valerius, who would go on to adopt the cognomen ‘Publicola,’ once laws declaring his irreproachable opposition to kingship had produced such great affection among the people.

Though students of the early Republic agree, for the most part, that Livy’s presentation of early Rome is too orderly and its institutions too like what we observe in the later years of the Republic, the agreement does not extend much further.Footnote ¹ One of the central sticking points is over the degree to which we can speak of a coherent state apparatus at any given point, and how expansive that apparatus’ interests and powers, and how developed its institutions, might have been. Though opinions over just what this early state apparatus looked like have certainly differed, just about all are in accord that it was smaller and less ambitious than what would characterise later periods.

Scholars have emphasised the roles of other forms of social organisation in the absence of a strong centralised power. One such form that has received particular attention in the context of early Rome is the enigmatic gens. Smith has investigated, in addition to the several famous interpretations and supposed analogues of the gens, the imprecision of the term ‘gens’ and its interrelation with many of the other social descriptors used at Rome;Footnote ² he has also illustrated the power of the gens to mobilise its members to effect particular political outcomes or to undertake military action.Footnote ³ Similarly, Capogrossi Colognesi has documented many of the ways in which gentilicial ties still mattered later in the Republic in the performance of state business and has argued unwaveringly that the gens still mattered long after the demise of the Republic.Footnote ⁴ However, although some gentes clearly coordinated their concerns for some time after the Republic, the heyday of the gens was, broadly speaking, early Rome.Footnote ⁵ And yet, in spite of its early political importance and its continued relevance in later times especially for social matters, the gens, so the familiar story goes, yielded more and more to the centralised state apparatus, as the Roman government grew in its abilities and ambitions.Footnote ⁶

In this paper, I want to contribute to discussions of when the importance of the gens may have begun to lessen by examining one area in which its power may in fact have persisted rather longer, namely matters of intestate inheritance.Footnote ⁷ I will argue that, as we might expect, the increasingly centralised state eventually supplanted the gens in regulating inheritance, but that here the development occurred later, and in a far less comprehensive manner, than elsewhere in the law or in public life.

This paper will proceed in three parts. First, we will see that the XII Tables of 451-450 BC appear to have codified a strong position for the gens in cases of intestacy.Footnote ⁸ That the gens would play an important role in these early years of the Republic is not surprising. Second, we will read in Gaius that by his time, the mid-second century AD, gentilicial law had fallen into disuse.Footnote ⁹ It will therefore remain for us to explain the intervening change and we will do so by examining two cases from the late Republic that have attracted a great deal of attention in the past: these are, first, the case documented in Cicero’s De Oratore, in which the Claudii Marcelli and the Claudii Pulchri contested a particular inheritance; and, second, the attempt, related in the laudatio Turiae, by an unnamed party to have a will declared invalid. I will argue that these two cases, and the discrepant position of the gens between them, suggest that the late Republic and Augustan periods saw the crucial diminution of the power of the gens in matters of intestacy.

Although some six centuries separate the XII Tables from Gaius, this discussion will have to focus on the first century BC, because that is the period for which we have the best and most evidence. We simply do not know of many cases from these intervening years concerned with matters of intestacy. However, and while acknowledging the difficulties involved in attempting to trace broad trends from so little evidence, I will argue that, when they are juxtaposed, the two cases discussed here do suggest the changes that interest us. We will see that, in the earlier case, the gens was quite important for the resolution of the matter, whereas in the later case its significance and even its membership were rather less well understood and of little, if any, consequence. The two implications that most interest us are (1) that gentilicial law had not entirely died out by the time of our later case; and (2) that acute change is more easily effected in state-level political institutions than in underlying structures of property transfer.Footnote ¹⁰ I will suggest that Augustus, who follows just after the time of our second case, might have created mechanisms that finally led to the complete desuetude that Gaius describes. We will see also that the trends that Augustus’ laws enshrined, to the detriment of the position of the gentes, had developed through the ius honorarium for centuries.

First, the XII Tables.Footnote ¹¹ We are concerned here with 5.4-5. I reproduce the text below:

The syntax of these clauses seems clear and the text can be translated easily enough, even if the precise identities and relationships of the individuals indicated are not so readily discernible: when there is not a suus heres, which is to say someone who becomes sui iuris upon the death of the person in question, and there is no agnate male kinsman, the property passes to the members of the gens. Kaser argued that the gens delegated the task of administering the property to one of its members.Footnote ¹³ These clauses suggest strong gentilicial organisation, or at the very least a means of managing property that passed to the group.Footnote ¹⁴

If these first clauses are indicative of the potential power of the gentes in organising the property of their members under certain circumstances, our second passage is equally clear about the eventual obsolescence of that power within the legal realm. Gaius tells us that, by his day, gentilicial law was no longer in use. We read at 3.17:

The relevant section of Book 1 has, unfortunately, been lost.Footnote ¹⁶ Gaius tells us that gentilicial law has become obsolete by his time, and that therefore, as we would expect given the purpose of his work, he has no interest in relating it.

During the course of the intervening six hundred years, the legal position of the gens in cases of intestacy has quite clearly changed. It now remains for us to try to ascertain when this shift might have occurred. In doing this, we will ask when things might have changed in common practice, and also if and when we might posit the concentrated introduction of perhaps several other legal remedies that provided alternative ways to address such issues of inheritance, and so encouraged this desuetude.

In order to suggest when practices might have changed, it will be useful to look now at our two cases. Mention of the first is found only in Cicero’s De Oratore, in a speech in which Crassus stresses the importance of knowledge of the details of an area of law. De Oratore is set in 91 BC, which will have to serve as the case’s terminus ante quem. The record that we have of this case is below.

The facts of the case seem to be that the son of a freedman of a certain Claudius Marcellus has died intestate, and both the plebeian Claudii Marcelli and the patrician Claudii Pulchri have claimed the inheritance, the former by stirps and the latter by gentilicial law.Footnote ¹⁸ How this situation might have come about and how it might have been resolved, as we do not have the verdict, have been debated since Mommsen, and our point here is not to argue in favour of any one particular solution.Footnote ¹⁹ However, it seems clear that the Claudii Marcelli based their claim on being more closely related to the deceased, whereas the Claudii Pulchri rested theirs on being the chief family of the gens Claudia. Although we do not know how this case was decided, the fact that Cicero has Crassus use it to show how knowledge of the details of an area of law was indispensable suggests that the opposing counsels had to make careful presentations to the court and that neither claim was obviously the stronger. The Claudii Pulchri would seem to have the XII Tables on their side, but if in fact they had the better claim to primacy within the gens, an assertion the Claudii Marcelli seem not to have challenged, the case presumably was not decided on that rule alone; on the other hand, the claim of the patrician Claudii Pulchri was still taken seriously enough for the case to be heard by the centumviral court. We see that having the opening for a decision according to gentilicial considerations, to the clear benefit of one party, did not resolve the case. We observe instead that claims based on proximity of relation might have carried more weight, if in fact the plebeian Claudii Marcelli prevailed. I believe that we have here an indication that close personal or familial relation might have been growing in legal importance at the expense of previously dominant social structures and their legal scaffolding.Footnote ²⁰

Our second case comes from the so-called laudatio Turiae, which probably dates to the first years of the Principate, but which details events that occurred near the end of the republican period. Of the unnamed heroine’s many deeds that ensured her and her husband’s survival during and after the civil wars of the first century, I want to focus on her success in securing her father’s patrimony against a competing claim. We read that after her parents were killed, ‘Turia’ and her sister were pressured to renounce their claim to their father’s estate, because, it was asserted, his will was invalid. The relevant section of the text, lines 13-26, is reproduced below:

This is a rich passage, full of assertions and supposed consequences. What is clear is that certain unnamed individuals wanted ‘Turia’s’ father’s property, and mounted what is presented as a brazen attempt to get it. Their first claim, which would trigger the series of events they desired, was that ‘Turia’s’ father’s will had been rendered invalid by his subsequent, at least second, marriage, which was contracted coemptione, which is to say cum manu. Instead of the arrangement that he specified in his will, namely that ‘Turia,’ her future husband,Footnote ²² and her sister were to be the heirs, the party asserted that the property should now devolve to ‘Turia’ alone, as she was the sole suus heres of her father, who had died intestate.Footnote ²³ In contrast to her sister, who, we are told, had been married cum manu, ‘Turia’ had yet to be married. As she was not in the manus of anyone, the party claimed, ‘Turia,’ bringing her father’s estate along with her, must pass into a condition of tutela mulieris. It is, of course, unclear how the subsequent management of the property would have been structured, and the only hint we have is the report of ‘Turia’s’ declaration that she would share her inheritance with her sister, who would in this scenario be legally entitled to none.Footnote ²⁴ Surely, the members of the party must have thought that they would have the final say over how the property would be managed and maybe over whom ‘Turia’ would marry.

Our worry turns out to be moot: ‘Turia’ was able to rebut the claim that her father’s will was invalid and indeed we can find no reason why a subsequent marriage cum manu should have invalidated a will. Furthermore, we read that, even if she had conceded this point, she could still have asserted that her father, and therefore she too, did not belong to a gens that could compel tutela in cases of intestacy.

The sentence certa quidem sententia te ita patris acta defensuram ut, si non optinuisses, partituram cum sorore te adfirmares, nec sub condicionem tutelae legitumae uenturam, quoius per [legem in te ius non] esset, neque enim familia[e] gens ulla probari poterat, quae te id facere [impediret] suggests that, even if ‘Turia’s’ could not, certain gentes could control the actions of at least some of their members in this way. The assertion also suggests that knowledge of which gentes could do this and which could not was not very common, and here we recall Gaius’ remarks on desuetude, which we must judge to be apt at least to some extent even at this time. In the end, this was of no importance in ‘Turia’s’ case, as those challenging her did not belong to the same gens.

Before turning to the question of desuetude, I want to examine further this possible differentiation between, on the one hand, those gentes that could exert control in cases of intestacy and, on the other, those that could not. We do not read of this distinction in the XII Tables, or anywhere else as far as I know.Footnote ²⁵ But to look for such a distinction as the result of a legal decision made by rudimentary organs of the state is the wrong way to proceed.Footnote ²⁶ It is not as though the state bestowed the power to administer property in cases of intestacy without a proximus agnatus upon the gens straightaway. Instead, the early state had to recognise that such power was not its to wield and that control in fact resided with the gentes: the state, in its law, endorsed rather than established a system. Our possible distinction, between those gentes that could compel tutela and those that could not, in contrast to a situation in which all gentes could appoint tutors in the same way, indicates more variation, and thus potential discretion, on the part of the gens rather than less, and also less control by the state. This discretion would no doubt have been exercised differently according to the cohesion and character of a particular gens. This would, in turn, point to an increased relevance for the gens in early Rome and, indeed, for as long as these circumstances governed conduct. I have just argued that these systems of property management remained important until possibly the early first century BC, which would indeed suggest a perseverance of structures of property transfer amid changing political institutions.

Gaius tells us that desuetude brings us from these circumstances to those of the mid-second century AD. I can see no reason to doubt this explanation, but on its own this is hardly a comprehensive account of what was probably a lengthy and complex process. The sloppiness of the anonymous claim on ‘Turia’s’ father’s estate and ‘Turia’s’ concern to cover all of her bases in rebutting it suggest strongly that this question did not come up regularly in court. Indeed, we may get the same impression from the detail in Cicero’s admittedly brief description of our first case, according to which both counsels had to present all of the aspects of the law of descent and gentilicial law to the court; it is possible that this desire to be comprehensive arose from uncertainty as to just what aspects of these areas of law would be judged relevant. Of course, almost two hundred years intervene between the affairs described in the laudatio Turiae and Gaius’ discussion and during such a long period of time gentilicial law might have fallen further into disuse, but we seem to have something approaching desuetude already in the late Republic. It will be useful to look for a legal tendency and/or specific legislative activity that might have further disempowered the gens, or resulted in the absolute desuetude that Gaius describes.

In fact, I want to suggest that both a long-term legal tendency and a more specific period of legislative activity must factor into any explanation of the situation in the mid-second century AD. To take the long-term tendency first, we see over the course of the middle and late Republic an increasing consideration being given to the nuclear family and the interests of cognates. Immediately after his statement that gentilicial law has fallen into disuse, Gaius explicitly contrasts the rules of intestate inheritance in early Rome with those that began to develop probably in the third century BC (3.25-28). Of the several developments which meant that these relations received greater consideration, I wish to mention two. The first is the increasing willingness to grant bonorum possessio, variously cum and sine re, to family members who were not the proximus agnatus, and who therefore would not have received consideration under the XII Tables or other statutes. The second is the creation of an action by which the wife, or her paterfamilias, could recover the dowry in cases of divorce. The husband was allowed to make certain deductions, but the wife’s family could recover the property with increasing ease.

Both of these developments grew through the ius honorarium. We should recall Papinian’s description of the ius honorarium: ius praetorium est, quod praetores introduxerunt adiuuandi uel supplendi uel corrigendi iuris ciuilis gratia propter utilitatem publicam. quod et honorarium dicitur ad honorem praetorum sic nominatum (‘The praetorian law is that which the praetors have introduced to support, supplement, or correct the ius ciuile in the public interest. This is also called [ius] honorarium, so named for the office of the praetor’) (Dig. 1.1.7.1).Footnote ²⁷ Helpfully, Marcian likewise says of this means of making law: nam et ipsum ius honorarium uiua uox est iuris ciuilis (‘For indeed the ius honorarium is itself the living voice of the ius ciuile’) (Dig. 1.1.8). Brennan helpfully summarises previous discussions as to how the praetor may have changed the law before our first-century BC sources give us a somewhat clearer understanding. He lists the praetor’s massaging of existent civil procedure for new purposes or effects, the praetor’s allowing of new actions, and the praetor’s expansion of the discretion of the iudex as to what the latter should consider when rendering his judgement in the stage apud iudicem. Brennan concludes that the foremost contribution of the praetor was ‘the promotion of the principle of aequitas.’Footnote ²⁸ The fact that the ius honorarium allowed for modifications to the law to be brought about by magistrates in response to changing circumstances or social pressures, and the fact that, as we can see in Gaius (3.25) and the relevant section of the Digest (24.3), the enhancement of bonorum possessio and the ability of the wife’s family to retrieve property came through praetorian law, should encourage us to see this uiua uox as trending against the gentes.

Of course, long-term trends are punctuated by periods of increased activity. With this mindset, we should look to Augustus, who fostered this promotion of the nuclear family and close cognatic kinship and thereby undermined the position of the gens. Keeping our two developments in mind and starting with inheritance by the nuclear family, which was at the heart of the enhancement of bonorum possessio,Footnote ²⁹ we should recall the lex Iulia de uicesima hereditatium of AD 5. This law taxed inheritance at five percent unless the estate was left to children or parents or did not meet the minimum valuation. This was certainly a change in practice and was clearly meant to encourage people to leave their estate to their closest of family members, and not to more distant relatives.

When considering the second development, the action for the return of the dowry in cases of divorce, we can call to mind a passage from Pomponius. At Dig. 24.3.1, we read: dotium causa semper et ubique praecipua est: nam et publice interest dotes mulieribus conseruari, cum dotatas esse feminas ad subolem procreandam replendamque liberis ciuitatem maxime sit necessarium (‘An action for dowry is foremost at all times and in all situations: for the public has a stake in dowries being kept by women, because it is absolutely crucial for women to have dowries for producing offspring and replenishing the state with children’). The same rationale was behind much of the Augustan marriage legislation. Although Augustus was of course neither the first nor the last to propound this thinking, much of what was written at Rome on this topic derives from commentaries on his famous laws. We should consider the lex Iulia de maritandis ordinibus of 18 BC and, with it, the lex Papia Poppaea of AD 9.Footnote ³⁰ Part of the law, related at Dig. 24.3.64, makes clear the legislation’s concern with the return of the wife’s property in cases of divorce, or upon her death, to her paterfamilias, if he was still living. Again we see Augustus legislating an action existent in the ius honorarium.Footnote ³¹

Augustus is therefore an important window onto earlier periods of the Republic because he finally stabilised, through leges, trends that had been developed by magistrates through the ius honorarium for centuries. These trends resulted in the primacy of the nuclear family and the elevation of the cognatic side of what we would call the extended family over the more distant gens. By increasingly modifying the system codified in the XII Tables and in the process marginalising the gens, the state grew in relative importance through the ius honorarium. It is of crucial importance that nothing approaching a robust ius honorarium was probably to be found before the last decades of the early Republic, if it could even be found as early as that. Augustus affirmed these developments, but his laws are certainly a far remove from the first stages of these trends that may have characterised the early Republic.

I wish to close by saying that I do not think that Augustus passed these laws in order to prevent the accumulation of power and resources by the gentes, or that a world of gentilicial social organisation could have re-emerged after Actium; that time had long since passed. For Augustus, closing off this archaic world might have been a consequence of legislating, but it was almost certainly not a motivation. Even so, the civil wars of the mid to late first century BC and the political changes seen afterward prompt two final conclusions. First, that Augustus and many like him were not ones to let a good crisis go to waste: such a reorganisation of political institutions and social structures as his would not have been not feasible without the seismic disruption of the civil wars. Fascinatingly, we must note here that mechanisms of property transfer were not radically changed, even now. And second, those acting either to govern or to remake the state in the first centuries BC and AD were doing something quite different than were those who oversaw the creation of the XII Tables. We must think that the power to administer property in cases of intestacy, since we have been focused on this, was Augustus’ to delegate as he saw fit, in a way that it was not at the discretion of the decemuiri. Additionally, attention to the importance of the ius honorarium in these developments conditions us to be very cautious when describing the early Republic, as only at the end of the period, if even then, do we imagine changes to the law to come substantially through this means. The window onto legal developments in the early Republic is quite opaque for this reason and others, which characterisation will hardly be surprising. Legal relationships and legal mechanisms shed much light on the political landscape at any given time, and legal history can be a means to think about changes in what the state was. Here we must recognise a fundamental difference that cautions against reading later conditions back onto structures of political power and the law in early Rome.