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p309 Cognati

An article by George Long, M.A., Fellow of Trinity College
on pp309‑310 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

COGNATI. The following passage of Ulpian (Frag. tit. 26 § 1) will explain the meaning of this term:—

"The hereditates of intestate ingenui belong in the first place to their sui heredes, that is, children who are in the power of the parent, and those who are in the place of children (as grandchildren for instance); if there are no sui heredes, itº belongs to the consanguinei, that is, brothers and sisters by the same father (it was not necessary that they should be by the same mother); if there are no consanguinei, it belongs to the remaining nearest agnati, that is, to the cognati of the male sex, who trace their descent through males, and are of the same familia. And this is provided by a law of the Twelve Tables:— Si intestato moritur cui suus heres nec escit, agnatus proximus familiam habeto."

Cognati are all those who, according to the Jus Gentium or the Jus Naturale, are sprung from one person, whether male or female (cognati . . . quasi ex uno nati, Dig. 36 tit. 8 s1 § 1). Pure Naturalis Cognatio exists between a woman, who is not in manu, and her children, whether born in marriage or not; and among all persons who are akin merely through the mother, without any respect to marriage. Consequently, children of one mother begotten in marriage and not begotten in marriage, and children of one mother begotten in marriage by different fathers, are cognati. The natural relationship by procreation was called naturalis, as opposed to cognatio civilis or legitima, which, though founded on the naturalis cognatio, received from positive law a distinct character. This naturalis cognatio was often simply called cognatio, and the civilis or legitima was called agnatio. Naturalis cognatio then, simply in itself, was no civilis cognatio; but agnatio was both cognatio naturalis and civilis.


[image ALT: A diagram of the degrees of relationship in a family over many generations.]
A correct notion of the term agnatus cannot be had without referring to the notion of the patria potestas, and to one of the senses of the word familia. In one sense, then, familia signifies all those free persons who are in the power (in patria potestate manuve) of the same Roman citizen, who was paterfamilias, or head of a familia; and in this sense familia signifies all those who are united in one body by this common bond. It is a general term which comprehends all the agnati. The legitimate children of sons who were not emancipated were in the patria potestas, consequently formed part of the familia, and were agnati. Adopted children were also in the adoptive father's power; and consequently were agnati, though they were not naturales cognati. Accordingly, if the legal agnatio, which arose from adoption, was dissolved by emancipation, there remained no cognatio: but if the agnatio, which arose from cognatio, was dissolved by emancipation, there still remained the naturalis cognatio. The paterfamilias maintained his power over his familia so long as he lived, except over those who were emancipated, or passed into another familia, or in any way sustained a deminutio capitis. On his death, the common bond of the patria potestas was dissolved, and his sons became respectively heads of families; that is, of persons who were in their power, or, with respect to one another, were agnati. But all these persons continued to be members of the same familia; that is, they were still agnati, and consequently the agnatio subsisted among persons so long as they could trace back their descent through males to one common paterfamilias.

Agnati, then, may be briefly explained to be those "who would be in the patria potestas, or in jus, as a wife in manus viri, or in the manus of a son who is in the father's power, if the paterfamilias were alive; and this is true whether such persons ever were so actually or not." (Hugo, Lehrbuch, &c.)

The imperfection of an individual, as a living being, is completed, First, by marriage, which unites two persons of different sexes in a society for life. Second, the imperfection of an individual which arises from his limited existence, is completed in the institution of Roman law in the patria potestas, to which is attached, partly as a further development, partly as a more natural or less legal analogy, kinship: "as a further development in agnatio, which is only the residuum of a previous existing patria potestas with constant continuation; as a natural analogy in cognatio, in which the jus gentium recognises the community of individuals which rests on descent, as the jus civile in agnatio." (Savigny, System, &c. vol. I p341, &c.)

We must suppose then, in order to obtain a clear notion of agnatio, that if the male from whom the agnati claim a common descent were alive, and they were all in his power, or in his manus, or in the manus of those who are in his power, they would all be agnati. In order, then, that agnatio may subsist among persons, the male from whom the descent is claimed must have lost his patria potestas by death only, and not by any capitis deminutio, and consequently not by any of his children passing into any other patria potestas, or into the manus viri, which would in effect be passing into another agnatio; for a person could not at the same time be an agnatus of two altogether different families. Accordingly, adoption destroyed the former agnatio, and the emancipation of a son took away all his rights of agnatio, and his former agnati lost all their rights against him.

The legal definition (Gaius, III.10) that agnati are those who are connected by legitima cognatio, and that legitima cognatio is the cognatio through persons of the male sex, must be viewed solely with reference to the natural relation; for agnatio, as a civil institution, comprehended those who were adopted into the familia; and further, those who were adopted out of the familia lost their former agnatio.

The meaning of consanguinei has already been given by Ulpian. Those who were of the same blood by both parents, were sometimes called germani; and consanguinei were those who had a common father only; and uterini those who had a common mother only.

p310 This table shows all the degrees of cognatio. The degree of relationship of any given person in this stemma, to the person with respect the whom the relationship is inquired after (is eave, &c.), is indicated by the figures attached to the several words. The Roman numerals denote the degree of cognatio in the canon law; and the Arabic numerals, the degrees in the Roman or Civil law. The latter mode of reckoning is adopted in England, in ascertaining the persons who are entitled as next of kin to the personal estate of an intestate. In the canon law, the number which expresses the collateral degree is always the greater of the two numbers (when they are different) which express the distance of the two parties from the common ancestor; but in the civil law, the degree of relationship is ascertained by counting from either of the two persons to the other through the common ancestor. All those words on which the same Roman, or the same Arabic, numerals occur, represent persons who are in the same degree of cognatio, according to these respective laws, to the person is eave, &c. (Hugo, Lehrbuch, &c.; Marezoll, Lehrbuch, &c.; Dig. 38 tit. 10, De Gradibus, &c.; Ulpianus, Frag. ed. Böcking; Böcking, Institutionen.)


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