This definition excludes from membership of a gens all those Plebeians who had sprung originally from emancipated slaves. No one who could be proved to have the taint of servile blood could ever be a gentilis. But there is every reason to believe that servitus was interpreted in a further sense, that clientship was regarded as a quasi-servile position, and debarred a group of families, whose ancestor could be proved to be a client, for ever from being a clan.
As a rule it would have been difficult, if not impossible, to furnish this proof; but there was one legal sign of it—the bearing by a plebeian stirps of the same name as a patrician clan. The presumption of the law, in the case of the coexistence of a plebeian group of families with a patrician group of the same name, was apparently that the former had once been clients of the latter, and could never, therefore, form a gens of their own.[1]
But, if there were plebeian families that had no origin in clientship, there was nothing to prevent these from being gentes. It is true that Patricians sometimes made the claim that all the plebeian families had originated from clientship.[2] But this is, as we saw,[3] probably not true of the origin of many of the plebeian families, and there is abundant evidence that the theory was not recognised by law. We know, for instance, that gentile inheritances were shared by the plebeian Minucii, and gentile sepulchres by the plebeian Popilii.[4]
The foregoing description shows that the gens rests on a natural basis, that it professedly represents the widest limits of blood-relationship; hence it would seem to follow that it could not be artificially created or its members redistributed; that the numbers of the clans could not be regulated numerically,
- ↑ The test is illustrated by a controversy between the patrician Claudii and the plebeian Claudii Marcelli, Cic. de Orat. i. 39, 176 "Quid? qua de re inter Marcellos et Claudios patricios centumviri judicarunt, cum Marcelli ab liberti filio stirpe, Claudii patricii ejusdem hominis hereditatem gente ad se rediisse dicerent, nonne in ea causa fuit oratoribus de toto stirpis et gentilitatis jure dicendum." Suetonius (Tib. 1) says of the clan of the Claudii Marcelli, as compared with their patrician namesakes, "nec potentia minor nec dignitate."
- ↑ Liv. x. 8, quoted p. 5.
- ↑ p. 5.
- ↑ Cic. in Verr. i. 45, 115 "Minucius quidam mortuus est ante istum (Verrem) praetorem; ejus testamentum erat nullum. Lege hereditas ad gentem Minuciam veniebat"; de Leg. ii. 22, 55 "Jam tanta religio est sepulchrorum, ut extra sacra et gentem inferri fas negent esse; idque apud majores nostros A. Torquatus in gente Popilia judicavit."
