cognati

COGNA´TICognationis 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, 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.   Tritavus, Tritavia.   6.   v.   Atavus, Atavia.   5.   iv.v.  Abavus, Abavia.Abpatruus, Abamita, Abavunculus, Abmatertera.  4.6.  iii.iv.  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.  Pronepos, Proneptis.Horum, Pronepos, Proneptis,  3.5.  iv.v.  Abnepos, Abneptis.Horum, Abnepos, Abneptis.  4.6.  v.   Adnepos, Adneptis.   5.   vi.   Trinepos, Trineptis.   6.   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.

See cognatio.