BOOK II. a Blackstone, i. p. 446. Gai. i. 63. Ulp. et si vulgo quaesitus sit filius, matrem in ius non vocabit, quia semper certa est, etiamsi vulgo conceperit;-Paul. pater vero is est quem nuptiae demonstrant."-D. 2, 4, 1. 4, § 3 and 1. 5.', Paul. Nec vulgo quaesitam filiam pater naturalis potest uxorem ducere, quoniam in contrahendis matrimoniis naturale ius et pudor iuspiciendus est.-1. 14, § 2, D. de R. N. 23, 2.2 (2) A relationship in the wider sense is also contained in AFFINITY. Whilst cognation depends upon conception and birth, adfinitas' (step-relationship and connection by marriage) is based upon the marriage with which it begins and ends, whilst it nevertheless operates further as an obstacle to marriage. 'Adfines' are one of the two married persons and the cognates of the other in a direct and a side-line; nevertheless, there is taken to be an affinity between the married persons themselves, and between parties betrothed. Mod. Adfines sunt viri et uxoris cognati; dicti ab eo quod duae cognationes, quae diversae inter se sunt, per nuptias copulantur et altera ad alterius finem accedit; namque coniungendae adfinitatis causa fit ex nuptius.-§ Nomina vero eorum haec sunt: socer socrus, gener nurus, noverca vitricus, privignus privigna § Gradus autem adfinitatis nulli sunt.-D. 38, 10, 4, §§ 3-5.3 1 -and if the son have been acquired by common intercourse, his mother he shall not summon, because she is always certain, although she have conceived from common intercourse. But the father is he that is indicated by marriage. 2 And a natural father cannot marry his daughter born out of wedlock, since in the contracting of a marriage regard must be had to the Law of Nature and modesty. 3 Parties connected by marriage are the relations of the husband and wife, and are called 'adfines' from the fact that two relationships which have a distinct existence as between one another are united by marriage, and the one relationship reaches § 43. THE FAMILIA OF THE JUS CIVILE-AGNATI " AND GENTILES. BOOK II. a Maine, ubi sup.; Coulanges, 'La Cité Antique,' pp. 'Descent' in Maine, Early Law The familia according to ius civile is founded upon PP. 58-62 (11th the Power of the Father, and in its narrower meaning the chapter on comprises persons connected by the bond of the same Stephen, vol. i. patria potestas; in its wider meaning, all persons who PP. 388, 897. would be placed under the same Power if the common holder of Power (ancestor) were still alive, who accordingly themselves, or their paterfamilias and his familia, would have been placed under the same Power. The members of a Roman familia in the wider sense are called agnati.' AGNATION can only be brought about through the male stem; women can nevertheless quite well be agnates.d Ulp. xi. 4: Adgnati sunt a patre cognati Mod. Cognationis substantia bifariam apud and Custom,' pp. 283, 897. © D. 53, 16, 195, 2. d'Ancient Law,' pp. 148, 152. For relics of this principle in English Law, compare com mon forms of settlement and entail. As to the exclusion, blood from succession to cach the limit of the other; for the cause of joining arises from marriage. Now the following are the designations of such of the half persons father-in-law, mother-in-law, son-in-law, daughter-inlaw, step-mother, step-father, step-son, step-daughter. But other's real there are no degrees of affinity. 1 Agnates are relatives connected on the father's side. . . tracing their descent through the male sex, and of the same family. 2 Now those are called 'agnates' who are allied by statutory kinship. estate, see Digby, pp. 378, sq. BOOK II. a Cf. § 52. Romanos intelligitur: nam quaedam cognationes iure civili, quaedam naturali connectuntur; nonnumquam utroque iure concurrente, et naturali et civili, copulatur cognatio. . . . Sed naturalis quidem cognatio hoc ipso nomine appellatur, civilis autem cognatio . . proprie adgnatio vocatur, videlicet quae per mares contingit.-1. 4, § 2, D. de grad. 38, 10.1 Agnation arises not merely by procreation in a Roman marriage, but also by adoption and 'in manum conventio,' by which the wife becomes filiaefamilias loco.' Paul. Sent. iv. 8 (Coll. xvi. 3), § 15: Consanguinei sunt eodem patre nati, licet diversis matribus, qui in potestate (sunt), adoptivus quoque frater. As far as Agnation extends there exists also Cognation, but not conversely." : Ulp. Inter adgnatos igitur et cognatos hoc interest, quod inter genus et speciem; nam qui est adgnatus, et cognatus est, non utique autem qui cognatus est, et adgnatus est; alterum enim civile, alterum naturale nomen est.-1. 10, § 4, D. de gradib. Mod.: Verbi gratia patris frater, i.e. patruus The essence of relationship bears a double signification amongst the Romans: for some links of relationship are by the i. c., some by the Law of Nature, sometimes the link of relationship is by a concurrence of both laws, the natural and civil. . . But naturalis cognatio is called by this very name, whilst civil relationship is strictly called adgnatio, as being that which arises through males. 2 Those are consanguinei that are born of the same father, although by different mothers, who are under Power; an adoptive brother too. 8 Between agnates and cognates there is, accordingly, the same difference as between genus and species; for the agnate is always also a cognate, but the cognate is not always an agnate also; the one is a designation pertaining to i. c., the other is a natural designation. et adgnatus est et cognatus; matris autem frater, 'Gentiles' are Roman citizens belonging to one of the old Patrician gentes (also called 'familiae'): thus, agnates who-without being able to prove the degree of their relationship-through their like stemname (nomen gentilicium) exhibit their descent from a common ancestor, and form an exclusive group of persons in the Roman State, held together by common 'sacra.' Already at the beginning of the Empire 'gentilitas' lost all importance in Private Law. Paul. ex Festo: Gentilis dicitur et ex eodem genere ortus et is qui simili nomine appellatur. —(p. 94, M.)2 Cic. Top. 6, 29: Gentiles sunt inter se, qui eodem nomine sunt:' non est satis. Qui ab ingenuis oriundi sunt': ne id quidem satis est. 'Quorum maioruin nemo servitutem servivit': abest etiamnunc. Qui capite non sunt deminuti': hoc fortasse satis est; nihil enim video Scaevolam pontificem ad hanc definitionem addidisse.3 BOOK II. a Cf. 'Anct. Law,' pp. 154, sqq. For British marriages, see MARRIAGE according to the Roman idea, which Stephen, vol. ii. 1 For example, the father's brother, i.e., the paternal uncle, is both an agnate and a cognate; but the mother's brother, i.e., the maternal uncle, is a cognate, not an agnate. ch. ii. ; pp. 115-118; of the Domestic Relations,' 2 He is called 'Gentilis,' whether as derived from the same pp. 55, sqq.; genus or as one who is called by a like name. "Gentiles are as between themselves those who bear the same name': it is not enough. Who have sprung from freeborn persons': not even is that enough. None of whose ancestors served in bondage': it still goes not far enough. 'Who have not suffered loss of caput': this perhaps is enough; for I do not see that the pont. Scaev. added to this definition. cf. Westlake, ch. iv. BOOK II. D. 25, 2, 1, 2. b Ulp. v. 3, 4. © See § 48. Perhaps from the time of the Twelve Tables. emphasizes its moral character, is that permanent union of man and wife which contemplates community of all relations in life; a maritalis affectio' alone distinguishes it from other sexual relations. Inst. i. 9, I Nuptiae sive matrimonium est viri et mulieris coniunctio, individuam consuetudinem vitae continens,' Modest. Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuris communicatio.-D. 23, 2, 1.2 The Romans distinguish (1) Marriage according to ius civile, only available to a Roman citizen, which supposes conubium on both sides, and is called 'legitimum, iustum matrimonium,' iustae nuptiae;' and marriage according to ius gentium, from which conubium' is absent. Inst. i. 10 pr.: Iustas nuptias inter se cives Romani contrahunt.3 Ulp. v. 2 Iustum matrimonium est, si inter eos, qui nuptias contrahunt, conubium sit." (2) The old Roman marriage, in which the wife is placed in the 'manus' of the husband (so-called strict marriage), and that without manus (so-called free marriage). The first was in early time the form of iustum matrimonium;' with the introduc tion and legal recognition of the latter,d it became ever less frequent, and at last passed entirely out of use. Cic. Top. 3, 14: Genus est uxor; eius duae 1 Marriage, or matrimony, is the union of a man and woman involving indivisible manner of life. 2 Marriage is the union of a male and female, and fellowship for the whole life, sharing right divine and human. 3 Lawful marriages are what Roman citizens contract between themselves. 4 It is a lawful marriage if there be right of intermarriage between the contracting parties. |