BOOK III.

THE LAW OF FAMILY AND THE LAW

OF INHERITANCE.

CHAPTER I.

THE LAW OF FAMILY.

877. Introduction.

FAMILY relations, in so far as they are regulated by legal rules, § 77. and are thereby invested with the character of legal relations, are of two kinds: they are either relations of power or they are proprietary relations. The conception of private law would, strictly speaking, only embrace the law of the proprietary relations of the family (sup. p. 99.) But inasmuch as the nature of these relations depends upon the nature of the corresponding relations of power, it is customary, in setting forth the law of the proprietary relations of the family (the so-called private, or applied, family law), to couple with it an exposition of the law concerning the relations of power which arise in a family (the so-called pure family law).

A family gives rise to three forms of power corresponding to which there are three kinds of proprietary relations: firstly, the marital power, and the proprietary relations of husband and wife; secondly, the parental power, and the proprietary relations of paterfamilias and filiusfamilias; thirdly, the tutorial power, and the proprietary relations of guardian and ward. Thus Family Law is divided into three parts: (1) the Law of Marriage; (2) the Law of Patria Potestas; (3) the Law of Guardianship.

§ 77.

$78.

It will be necessary, by way of supplying a foundation for the subject-matter, to premise an explanation of the conception of family, and of the terms by which the constituent groups of a family are denoted.

878. The Family.

I. The Conception of Family.

A family, within the meaning of Roman civil law, means an agnatic family, i. e. the aggregate of all those who are bound together by a common patria potestas. 'Agnates' are all those who stand under the same patria potestas or would have done so, if the common ancestor were still alive. Agnatio is not produced by blood-relationship alone. A mother, as such, is not an agnate of her own children; she only becomes so, if, in consequence of her marriage, she passes into the manus, i. e. the patria potestas, of her husband, and is thereby united with her children under the same patria potestas. She then becomes an agnatic sister of her own children. Again a man's grandchildren by his daughter are not his agnatic relations, because they fall under the patria potestas of their own father, or paternal grandfather, as the case may be (sup. p. 121), so that there is no patria potestas to connect them with their maternal grandfather. And conversely persons can be agnates without being blood-relations at all. In all cases where patria potestas is artificially created by a juristic act (adoption or in manum conventio), the effect is to make the person adopted, or the wife, an agnate not merely of the adoptive parent, or the husband, but also of all the other agnatic relatives of the new agnate, because, according to the civil law, community of patria potestas is the sole criterion for determining whether any given persons are related or not.

The agnatic family of the civil law means the aggregate of those who belong to the same household. Community of patria potestaswhether such patria potestas be actual or merely ideal (i. e. continuing to exist only in its effects)-means community of household in the technical sense of the term. Such a community includes none but those who are related on their father's side (per sexum virilem), and its formal foundation is a legal relationship, viz. patria

potestas, which admits both of artificial creation (see the above § 78. cases of adoption and in manum conventio) and of artificial extinction (see the cases of capitis deminutio minima, sup. p. 124).

The conception of family in the jus gentium is a different one. The family of the jus gentium is the cognatic family. Cognatio means relationship based on consanguinity. As the father is the type and representative of the agnatic principle, so the mother is the type and representative of the cognatic principle. Perhaps there was once even a time when cognatio could only be produced by relationship on the mother's side, just as agnatio could only be produced by relationship on the father's side. In historic times, however, cognatio may mean relationship on the father's as well as on the mother's side. Agnatio then ceases to be opposed to cognatio and becomes merely the name for a smaller group contained within the wider range of cognatio.

The essence of cognatio is community of blood, not community of household; and its foundation is a natural, not a legal relationship. Hence (unlike agnatio) cognatio can neither be artificially extinguished nor can it be artificially created as such. When, however, agnatic relationship came to be recognized as existing within the larger limits of cognatio, the artificial creation of agnatio operated to confer on the new agnate the rights of a cognate as well, and, in this sense, produced cognatio.

The development of the Roman law of family and the Roman law of inheritance proceeded broadly on the following lines. The early civil law recognized agnatio alone. Subsequently, and more especially through the agency of the praetor, the claims of cognatio asserted themselves, till ultimately, through the legislation of the empire, the cognatic principle succeeded in superseding its rival altogether. In this as in other departments of law the final completion of the development was due to Justinian, some of whose reforms on this subject were not effected till the publication of his novels. Just as in the older times everything depended on agnatio, so in Justinian's law everything turns on cognatio. The civil law conception of a family was finally displaced by the conception of a family as recognized in the jus gentium.

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§ I I. de leg. agn. tutela (1, 15): Sunt autem adgnati per virilis sexus cognationem conjuncti, quasi a patre cognati, veluti frater eodem patre natus, fratris filius neposve ex eo, item patruus et patrui filius, neposve ex eo.

At, qui per feminini sexus personas cognatione junguntur, non sunt adgnati, sed alias naturali jure cognati.

L. 10 § 4 D. de gradibus (38, 10) (PAULUS): Inter adgnatos igitur et cognatos hoc interest, quod inter genus et speciem. Nam, qui et adgnatus, et cognatus est, non utique autem qui cognatus est, et adgnatus est. Alterum enim civile, alterum naturale nomen est.

L. 195 § 5 D. de V. S. (50, 16) (ULPIAN.): Mulier autem familiae suae et caput et finis est.

II. The Constituent Members of a Family.

A family is divided into ascendants and descendants, on the one hand, and collaterals, on the other hand. Ascendants and descendants are said to be related to one another 'linea recta,' i. e. the one descends from the other. Collaterals, on the other hand, are said to be related 'linea transversa' ('obliqua'), i. e. they both descend from a common ancestor.

The proximity or degree of relationship, whether in lineal or collateral relations, depends on the number of generations which separate the persons in question. Quot generationes tot gradus.' Thus father and child are related in the first degree, grandfather and grandchild in the second degree, brothers and sisters in the second degree, and so forth. Collaterals are said to be of the whole blood, when they have the same father and mother; they are said to be of the half blood, when they have either the same father or the same mother. The Romans apply the term 'consanguinei' both to children who are of the whole blood (called by modern writers 'germani') and to children of the same father only. Children by the same mother only are called 'uterini.' Complex relationship occurs in the case of children of parents who are already related to one another. Affinity is the connection which subsists between a person and the cognates of his or her spouse. Children not born in wedlock are only related to their mother and her cognates, not to their reputed father.

The 'gentiles' of the early Roman law were members of the same § 78. clan (gens). The clan formed a wider group over and above the family and played an important part both in public and in private law (cp. e. g. inf. § 98). When the consciousness of the mutual connection between 'gentiles' was lost, the word dwindled into a mere designation for a group of persons with a common name, without possessing any legal importance.

L. 1 pr. D. de grad. (38, 10) (GAJUS): Gradus cognationis alii superioris ordinis sunt, alii inferioris, alii ex transverso sive a latere. Superioris ordinis sunt parentes, inferioris liberi; ex transverso sive a latere fratres et sorores liberique eorum. § 1: Sed superior quidem et inferior cognatio a primo gradu incipit; ex transverso sive a latere nullus est primus gradus, et ideo incipit a secundo.

L. 10 § 14 eod. (PAULUS): Avia paterna mea nupsit patri tuo, peperit te; aut avia paterna tua nupsit patri meo, peperit me: ego tibi patruus sum et tu mihi.

CICERO Top. c. 6: Gentiles sunt, qui inter se eodem nomine sunt. Non est satis. Qui ab ingenuis oriundi sunt. Ne id quidem satis est. Quorum majorum nemo servitutem servivit. Abest etiam nunc. Qui capite non sunt deminuti. Hoc fortasse satis est. Nihil enim video Scaevolam pontificem ad hanc definitionem addidisse.

I. THE LAW OF MARRIAGE.

§ 79. Marriage and the Modes of contracting it.

Marriage is the full legal union of man and woman for the § 79. purpose of lifelong mutual companionship. Such a union is not complete, according to the early Roman law, unless the husband has absolute power over the person of his wife ('manus mariti '). Hence marriages were usually concluded by means of an ancient traditional ceremony representing a purchase of the bride ('coëmtio '), i. e. the intending husband purchased the daughter from the person in whose power she stood, with a view to thereby acquiring the marital power without which marriage as a legal relationship was