ancestor, a sign of this original potestas being the common gentile name.[1]
The members of a clan are to one another either agnati or gentiles. In many cases the difference of nomenclature was based merely on the degree of certainty in the relationship. They were agnati when the common descent could be traced through all its stages; they were gentiles when the common descent was only an imagined fact, based on the possession of a common name. As a rule agnati are also gentiles; but there might be groups of agnates who could never be gentiles—groups, that is, of proved relationship through the male line, who could not, for reasons which we shall soon specify, form a gens.
If we believe that the Roman Patriciate represented those who alone possessed the legal status of heads of families (patres)[2]—since, the familia being the unit of the clan, the rights of a clan-member (gentilis) imply the position of a paterfamilias—it follows that the Roman gentes were, as they are represented by tradition, originally exclusively patrician, and that the terms gentilis, gentilitas implied a perfect equality of status among the only true members of the state.
The words became restricted to a certain section of the community in consequence of the evolution of plebeian rights, i.e. in consequence of the Plebeians becoming in strict law patres familias. The logical consequence of this should have been, where groups of such families bore a common name and were believed to have a common descent, that these groups should form gentes. But history is illogical, and this conclusion was not reached.
No such group could possibly form a gens of its own, if it could be regarded as having been originally in dependence on a patrician clan. Although in course of time legally independent and freed from all trammels of clientship, it was yet disqualified from clan-brotherhood by this original connexion; it remained an offshoot (stirps), a mere dependent branch, and could never be a self-existent gens. This disqualification is exhibited in the definition of gentilitas given by the jurist Scaevola (consul 133 B.C.), which gives as two of its conditions free birth in the second degree, and the absence of servile blood in one's ultimate ancestry.[3]
