Latin
Ancient Law
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.331
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Some considerations which have been offered in the fifth chapter of this volume will assist the reader, I trust, in appreciating the significance of Elphinstone's language. No institution of the primitive world is likely to have been preserved to our day, unless it has acquired an elasticity foreign to its original nature through some vivifying legal fiction. The Village Community then is not necessarily an assemblage of blood-relations, but it is either such an assemblage or a body of co-proprietor formed on the model of an association of kinsmen. The type with which it should be compared is evidently not the Roman Family, but the Roman Gens or House. The Gens was also a group on the model of the family. it was the family extended by a variety of fictions of which the exact nature was lost in antiquity. In historical times, its leading characteristics were the very two which Elphinstone remarks in the Village Community. There was always the assumption of a common origin, an assumption sometimes notoriously at variance with fact; and, to repeat the historian's words, "if a family became extinct, its share returned to the common stock." In old Roman law, unclaimed inheritances escheated to the Gentiles. It is further suspected by all who have examined their history that the Communities, like the Gentes, have been very generally adulterated by the admission of strangers, but the exact mode of absorption cannot now be ascertained. At present, they are recruited, as Elphinstone tells us, by the admission of purchasers, with the consent of the brotherhood. The acquisition of the adopted member is, however, of the nature of a universal succession; together with the share he has bought, he succeeds to the liabilities which the vendor had incurred towards the aggregate group. He is an Emptor Familiae, and inherits the legal clothing of the person whose place he begins to fill. The consent of the whole brotherhood required for his admission may remind us of the consent which the Comitia Curiata, the Parliament of that larger brotherhood of self-styled kinsmen, the ancient Roman commonwealth, so strenuously insisted on as essential to the legalization of an Adoption or the confirmation of a Will.