familias incipiunt habere, singuli enim patrum- . interdicto VNDE VI familiae appellatio BOOK II. Part I. 1 Let us see in what way the designation familia is used. It has indeed been used in different ways, for it is applied both to things and to persons. To things, for example, in the Law of the Twelve Tables as follows: 'the next agnate shall have the inheritance'; but it relates to persons, when the lex speaks of the patron and the freedman: from that family into this family'; and it is known that the lex here speaks of individual persons. The denomination ‘familia' is also used for the designation of any community which either has its special rights, or is comprehended in the common rights of the whole relationship. By a familia with special rights, we speak of several persons who are under the power of one person, to whom they are subject either by nature or by Law; for example, the father of a family, the mother of a family, the son of a family, the daughter of a family. Now he is called 'pat. fam.' who has authority in the house, and he is rightly called by this name, although he have no son; for we designate not merely the person, but also the legal relation thereof; accordingly, we call a pupil also 'pat. fam.' And when the pat. fam. dies, as many heads as were subject to him begin to have just so many single families, for every individual takes the name 'pat. fam.,' and the same will occur also in the case of one who has been emancipated, for he also has a family of his own, having become sui iuris. By a familia with common rights, we speak of those composing all the agnates;" for although upon the death of a See § 43. BOOK II. Gai. Familiae appellatione et ipse princeps familiae continetur. Feminarum liberos in familia earum non esse palam est, quia qui nascuntur, patris familiam sequuntur.-1. 196 eod.1 A person that is subject to no Family Power is free from control, or independent of Family, that is, constitutes the head of a familia, or even himself represents a Family, is 'persona sui iuris': 'paterfamilias' (possessed of full Roman capacity for private a Cf. Cic. Top. rights, and himself capable of Family Power) and 'materfamilias.' a 3, 14. Sce § 60. Ulp. iv. I Sui iuris sunt familiarum suarum principes, i.e. paterfamiliae itemque materfamiliae." Jd. Patresfamiliarum sunt, qui sunt suae potestatis, sive puberes sive impuberes; simili modo matresfamiliarum.-D. 1, 6, 4.3 Free persons subject to the Family control of another, and whose legal capacity is governed by his right under whose power they are, are 'personae alieno iuri subiectae,' persons in subservience to a Family or under domestic dependence. We have here three classes: the pat. fam., every individual has a separate family, yet all that were under the power of the one person will rightly be spoken of as belonging to the same family, because they have sprung from the same house and stock. § We are also accustomed to call a whole body of slaves a 'familia,' as . . . in the interdict unde vi' the designation familia takes in all the slaves. ... Likewise, a familia is so called of several persons who are sprung from the blood of the same first ancestor, as when we speak of the Julian family.' § But a woman is both the begin. ning and the end of her family. 1 1 Under the designation of 'familia,' the head himself also of a family is included. That women's children are not in their family is plain, because the issue follows the family of the father. 2 Those are sui iuris who are heads of their own families, that is, the pat. fam. and the mat. fam. 3 They are patresfam. who are in possession of their own right, whether or not they have reached the age of puberty; the like with matresfam. (a) personae in potestate, or filius familias, filia (B) uxor in manu. (8) personae in mancipio.a Gai. i. §§ 48, sq.: Quaedam personae sui iuris sunt, quaedam alieno iuri subiectae.-Sed rursum earum personarum, quae alieno iuri subiectae sunt, aliae in potestate, aliae in manu, aliae in mancipio.1 The Roman Family Law, which is to be treated of in the following pages, comprehends accordingly the doctrine of 'patria potestas,' of ' manus,' of 'mancipium'; but since marriage is presupposed as well by Patria Potestas as by Manus, and in general by the Family, it will be well to explain this in the first place. THE FAMILY AS A GROUP OF PERSONS. KINSHIP. $42. THE NATURAL FAMILY; BLOOD-RELATIONSHIP, AND AFFINITY BY MARRIAGE. (1) COGNATION. BOOK II. l'art I. a For servi, see $35. Cf. Roby, 'School Latin Grammar,' App. C; Law,' pp. 146 The Family in the natural sense, or according to ius Maine, Ane'. gent., is the aggregate of persons connected by demon- sqq. strable blood-relationship (cognatio), i.e., by common descent. Blood-relationship arises by conception or birth. Blood-relations (cognati) are the persons that are related to one another in a direct line of descent, or are descended from the same third person. The first are spoken of as kinsmen in an ascending and descending line (linea recta; superior, inferior) or ancestors and descendants, e.g., parentes, avus, proavus, liberi, nepos, pronepos; the latter are called collaterals (linea transversa, a latere), e.g., brothers and sisters, uncle and aunt (upon the paternal side: patruus and amita, 1 Some persons are sui iuris, some are subject to the control of another. But again, of those persons subject to the control of another, some are in potestas, others in manus, others in mancipium. BOOK II. a See below. Cf. § 43.-In the scheme of kinship O represents a male, a female; the connection of the two by a curved line, marriage; a vertical line, descent; a stroke through the first-mentioned marks, the subtraction of a person. upon the maternal: avunculus and matertera), children of brothers and sisters, or cousins (patrueles and consobrini), grandchildren of brothers and sisters (sobrini). A diagram" will exhibit such relationships. B (filius), C (filia), D, E (nepotes), and F (neptis) are descendants of A; D and E of B; F of C. B and C, D, E and F, B and F, C, D and E are collaterals. OE OF According as the collaterals had paternal and maternal ancestors in common, or only the one or the other, was the distinction made between kinsmen of the whole blood and of the half-blood, especially brothers and sisters (germani, consanguinei, uterini), as will appear from the following diagram. A A and B are brother and sister of the full blood (germani); A, B and C or D of the half-blood; whilst A, B and C are consanguinei, A, B and D uterini. In contrast with simple kinship, various is that which rests upon several grounds. It arises, for instance, (a) by descent from parents related inter se, as in the annexed diagram; (B) by descent from marriage of several persons related inter se with others so related, as shown opposite. The nearness of the relationship is reckoned by degrees, i.e., according to the greater or less distance of kinsmen from one another; in other words, the distance on both sides from the common ancestor. Each procreation counts as a degree: just so many are the procreations required to establish the kinship between the persons in question, are there degrees of kinship between them." E A is related in the first degree to B and C, in the second degree to D and E; B to C in the second; B to E, C to D in the third; D to E in the fourth. BOOK II. a 'Quot generationes tot gradus.' Kinship by marriage alone enjoyed full legal recognition. Only the children begotten in legitimate marriage had juristically a father and paternal rela- ' § 51 ad init. tions. On the other hand, as regards the mother and the maternal relations, the Law made no difference between their children begotten in wedlock and out of wedlock (vulgo quaesiti, spurii, liberi naturales in the wider sense). 1 Gai. i. § 64: quos mater vulgo concepit, .. hi patrem habere non intelliguntur, cum is etiam incertus sit; unde solent spurii filii appellari, vel a Graeca voce quasi σopádn concepta, vel quasi 'Sine Patre' filii.' Modest. Vulgo concepti dicuntur, qui patrem demonstrare non possunt, vel qui possunt quidem, sed eum habent, quem habere non licet.-D. 1, 5, 23.2 -those whom a mother has conceived in promiscuous intercourse, for these are not regarded as having a father, his identity also being uncertain; hence they are commonly called 'spurious' children, either from a Greek word, being, as it were, conceived σлорádη (at random), or because they are children, so to speak, without a father. 2 They are said to be conceived in common intercourse that cannot show who is their father, or who can do so, but have as a father one whom they should not. |