COGNA´TI
COGNA´TI
“Cognationis substantia bifariam apud Romanos intelligitur. Nam
quaedam cognationes
jure civili, quaedam
naturali connectuntur: nonnunquam
utroque jure concurrente, et naturali,
et civili, copulatur cognatio. Et quidem
naturalis
cognatio per se sine civili cognatione intelligitur, quae
per feminam descendit,
quae vulgo liberos peperit. Civilis autem per
se, quae etiam
legitima dicitur, sine jure
naturali cognatio consistit
per adoptionem. Utroque
jure consistit cognatio,
cum justis
nuptiis contractis copulatur” (
Dig. 38,
10,
1,
4,
2). In other words,
the Romans have two distinct conceptions of kinship--the relationship of the
jus civile (agnatio, cognatio civilis or
legitima), and the relationship of the
jus
gentium or
naturale (
cognatio naturalis or cognatio
κατ᾽ ἐξοχήν). Agnates are defined in
Gaius, 1.156, and Just. Inst. 1.15, 1 (cf. Gaius, 3.10; Inst. 3.2, 1), as
those who are “per virilis sexus personas cognatione juncti.”
But this definition must be extended so as to include all adoptive
relations, e. g. brothers and uncles, who properly cannot be called
cognati at all if cognates are persons related
merely by the tie of blood, and women who by passing
in
manum mariti came to be
filiae
loco to their husbands, and so agnates to their own children and
their husbands' agnates in general. Conversely, it must be narrowed so as to
exclude cognates who, even though
per virilis sexus
personas juncti, had by
capitis deminutio
minima [
CAPUT] left
their agnatic family (whence Ulpian says,
Reg. 11, 4,
“ejusdem familiae” ). Agnates, in fact, are persons related
to one another through males, whether the relationship be natural, adoptive,
or quasi-adoptive as produced by
manus, and
between whom no barrier has been interposed by
capitis
deminutio; and agnation is the tie between two or more persons
which is based on the
potestas or
manus to which all of them would be subject if the
head of the familia were still alive (Sir H. Maine,
Ancient
Law, pp. 1468). Thus, if A has in his
potestas three sons, B, C, and D, and two grandchildren (Y and Z)
by B, and emancipates B and then dies, C, D, Y, and Z are agnates of one
another and of all A´s own agnates; but they are no agnates of B,
who by emancipation has undergone
capitis
deminutio, and therefore (agnatically) has no relations in the
world.
Cognatio naturalis, on the other hand, or
cognatio simply, is what we call
relationship by blood. It is independent
of patria
potestas; but (in spite of the maxim “civilis ratio naturalia
jura corrumpere non potest,” Gaius, 1.158) it was destroyed, or
at least its jural consequences were, by
capitis
deminutio maxima and
media (Inst.
1.16, 6). All those persons are
cognati of one
another who are sprung from one and the same person, whether male or female
( “cognati. . . . quasi ex uno nati,”
Dig. 38,
8,
1,
1), and the relationship
may be either lineal (as between ascendants and descendants) or collateral
(as between brothers and sisters, uncles and nephews, cousins, &c.).
Those who were of the same blood by both parents, or brothers and sisters of
the whole blood, are properly termed
germani:
consanguinei are those born of different mothers by a common
father;
uterini, those born of the same mother
by different fathers. Illegitimacy was no bar to cognation. The paternity of
children born in
concubinatus [
CONCUBINA] was to some extent
recognised by law (Inst. 1.10, 13), but those born of a less permanent
connexion (
vulgo quaesiti), though deemed in
law to have no father, were regarded as the mother's children, and were
cognati of her as well as of one another
(Inst. 3.4, 3; ib. 5, 4). Justinian also recognised cognation between the
free descendants of a slave-woman (Inst. 3.6, 10). And even an unreal
cognation was inferred from real agnation not based on blood: e. g. an
adoptive child might claim succession under the edict among cognates if he
had omitted to assert his civil law right as an agnate. But if the legal
agnatio, which arose from adoption, was
dissolved by
capitis deminutio (e. g. through
emancipation), there remained no
cognatio; but
an
agnatus by birth still was
cognatus after emancipation for “civilis ratio
naturalia jura corrumpere non potest,”
cit. supr.
The degrees of cognation (and of agnation also, Inst. 3.6, 8) were reckoned
by counting each generation as one degree of removal from the person to whom
kinship is being traced. Thus parents and children are cognates in the first
degree of one another: brothers, sisters, grandparents and grandchildren, in
the second,
[p. 1.469]and so on. The annexed table shows all
the degrees up to the sixth, to none beyond which did the law attach any
legal rights; thus, no
| vi. |
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| Tritavus,
Tritavia. |
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| 6. |
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| v. |
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| Atavus,
Atavia. |
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| 5. |
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| iv. |
v. |
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| Abavus,
Abavia. |
Abpatruus,
Abamita, Abavunculus, Abmatertera. |
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|
| 4. |
6. |
|
|
| iii. |
iv. |
|
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| Proavus,
Proavia. |
Propatruus,
Proamita, Proavunculus, Promatert. |
|
|
| 3. |
5. |
|
|
| ii. |
iii. |
iv. |
|
| Avus, Avia. |
Patruus,
Amita, Avunculus, Matert. Mag. |
Horum,
Filius, Filia, |
|
| 2. |
4. |
6. |
|
| i. |
ii. |
iii. |
|
| Pater,
Mater. |
Patruus,
Amita, Avunculus, Matertera. |
Propior,
Sobrino, Sobrinave |
|
| 1. |
3. |
5. |
|
| IS EAVE de cujus cognatione
quaeritur. |
i. |
ii. |
iii. |
| Frater,
Soror, |
Consobrinus
Consobrina. |
Sobrinus,
Sobrina. |
| 2. |
4. |
6. |
| i. |
ii. |
iii. |
|
| Filius,
Filia. |
Horum,
Filius, Filia. |
Horum,
Filius, Filia. |
|
| 1. |
3. |
5. |
|
| ii. |
iii. |
iv. |
|
| Nepos,
Neptis. |
Horum,
Nepos, Neptis. |
Horum,
Nepos, Neptis. |
|
| 2. |
4. |
6. |
|
| iii. |
iv. |
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| Pronepos,
Proneptis. |
Horum,
Pronepos, Proneptis, |
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| 3. |
5. |
|
|
| iv. |
v. |
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| Abnepos,
Abneptis. |
Horum,
Abnepos, Abneptis. |
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|
| 4. |
6. |
|
|
| v. |
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| Adnepos,
Adneptis. |
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| 5. |
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| vi. |
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| Trinepos,
Trineptis. |
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| 6. |
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cognates beyond those in the sixth degree could claim to succeed a
person who died intestate, except the children of a
sobrinus or
sobrina, who, as may
be seen, were in the sixth degree themselves (Inst. 3.5, 5). The degree of
relationship of any given person in this stemma to the person to whom
kinship is being traced (
s eavc, &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 personalty 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. If it be asked what is the
significance of
agnatio and
cognatio respectively in the Roman system, the answer is that
under the older law the latter conferred no rights whatever; it only imposed
liabilities, especially in relation to marriage. A man could not lawfully
marry either a lineal cognate or marry in the collateral line (e. g. a
sister, niece, or aunt); but he and they had absolutely no rights in
relation to one another as
cognati. For
instance, if a father emancipated his child of tender years, he became his
guardian; but
not because he was his father (for the
agnatic tie had been broken), but on the analogy of master and slave,
because he had conferred on him the boon of independence. On the other hand,
the agnates enjoyed valuable rights both of guardianship and of inheritance
upon intestacy. But the whole history of Roman law is the history of the
gradual substitution of cognation for agnation as a title to rights,
especially in the department of inheritance [
BONORUM POSSESSIO],
and in Justinian's final reform of the law of Intestate Succession by Novel
118 the last trace of agnation as conferring any privileges is extinguished.
Perhaps the most striking of the earlier admissions of cognatic relationship
by the civil law is the
querela inofficiosi
testamenti.
[
J.B.M]
