第42章

Before this branch of our subject is dismissed, it should beobserved that the Paterfamilias was answerable for the delicts(or torts) of his Sons under Power. He was similarly liable forthe torts of his slaves; but in both cases he originallypossessed the singular privilege of tendering the delinquent'sperson in full satisfaction of the damage. The responsibilitythus incurred on behalf of sons, coupled with the mutualincapacity of parent and Child under Power to sue one another,has seemed to some jurists to be best explained by the assumptionof a "unity of person" between the Paterfamilias and theFilius-familias. In the chapter on Successions I shall attempt toshow in what sense, and to what extent, this "unity" can beaccepted as a reality. I can only say at present that theseresponsibilities of the Paterfamilias, and other legal phenomenawhich will be discussed hereafter, appear to me to point atcertain duties of the primitive Patriarchal chieftain whichbalanced his rights. I conceive that, if he disposed absolutelyof the persons and fortune of his clansmen, this representativeownership was coextensive with a liability to provide for allmembers of the brotherhood out of the common fund. The difficultyis to throw ourselves out of our habitual associationssufficiently for conceiving the nature of his obligation. It wasnot a legal duty, for law had not yet penetrated into theprecinct of the Family. To call it moral is perhaps to anticipatethe ideas belonging to a later stage of mental development; butthe expression "moral obligation" is significant enough for ourpurpose, if we understand by it a duty semi-consciously followedand enforced rather by instinct and habit than by definitesanctions.

The Patria Potestas, in its normal shape, has not been, and,as it seems to me, could not have been, a generally durableinstitution. The proof of its former universality is thereforeincomplete so long as we consider it by itself; but thedemonstration may be carried much further by examining otherdepartments of ancient law which depend on it ultimately, but notby a thread of connexion visible in all its parts or to all eyes.

Let us turn for example to Kinship, or in other words, to thescale on which the proximity of relatives to each other iscalculated in archaic jurisprudence. Here again it will beconvenient to employ the Roman terms, Agnatic and Cognaticrelationship. Cognatic relationship is simply the inception ofkinship familiar to modern ideas; it is the relationship arisingthrough common descent from the same pair of married persons,whether the descent be traced through males or females. Agnaticrelationship is something very different : it excludes a numberof persons whom we in our day should certainly consider of kin toourselves, and it includes many more whom we should never reckonamong our kindred. It is in truth the connexion existing betweenthe member of the Family, conceived as it was in the most ancienttimes. The limits of this connexion are far from conterminouswith those of modern relationship.

Cognates then are all those persons who can.trace their.

blood to a single ancestor and ancestress; or, if we take thestrict technical meaning of the word in Roman law, they are allwho trace their blood to the legitimate marriage of a commonpair. "Cognation" is therefore a relative term, and the degree ofconnexion in blood which it indicates depends on the particularmarriage which is selected as the commencement of thecalculation. If we begin with the marriage of father and mother,Cognation will only express the relationship of brothers andsisters; if we take that of the grandfather and grandmother, thenuncles, aunts, and their descendants will also be included in thenotion of Cognation, and following the same process a largernumber of Cognates may be continually obtained by choosing thestarting point higher and higher up in the line of ascent. Allthis is easily understood by a modern; but who are the Agnates?

In the first place, they are all the Cognates who trade theirconnexion exclusively through males. A table of Cognates is, ofcourse, formed by taking each lineal ancestor in turn andincluding all his descendants of both sexes in the tabular view;if then, in tracing the various branches of such a genealogicaltable or tree, we stop whenever we come to the name of a femaleand pursue that particular branch or ramification no further, allwho remain after the descendants of women have been excluded areAgnates, and their connexion together is Agnatic Relationship. Idwell a little on the process which is practically followed inseparating them from the Cognates, because it explains amemorable legal maxim, "Mulier est finis familia" -- a woman isthe terminus of the family. A female name closes the branch ortwig of the genealogy in which it occur. None of the descendantsof a female are included in the primitive notion of familyrelationship.

If the system of archaic law at which we are looking be onewhich admits Adoption, we must add to the Agnate thus obtainedall persons, male or female, who have been brought into theFamily by the artificial extension of its boundaries. But thedescendants of such persons will only be Agnates, if they satisfythe conditions which have just been described.