Latin
Ancient Law
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.193
Not analysed yet
The Parental Powers proper are extinguished by the death of the Parent, but Agnatio is as it were a mold which retains their imprint after they have ceased to exist. Hence comes the interest of Agnation for the inquirer into the history of jurisprudence. The Powers themselves are discernible in comparatively few monuments of ancient law, but Agnatic Relationship, which implies their former existence, is discoverable almost everywhere. There are few indigenous bodies of law belonging to communities of the Indo-European stock, which do not exhibit peculiarities in the most ancient part of their structure which are clearly referable to Agnation. In Hindoo law, for example, which is saturated with the primitive notions of family dependency, kinship is entirely Agnatic, and I am informed that in Hindoo genealogies the names of women are generally omitted altogether. The same view of relationship pervades so much of the laws of the races who overran the Roman Empire as appears to have really formed Part of their primitive usage, and we may suspect that it would have perpetuated itself even more than it has in modern European jurisprudence, if it had not been for the vast influence of the later Roman law on modern thought. The Praetors early laid hold on Cognation as the natural form of kinship, and spared no pains in purifying their system from the older conception. Their ideas have descended to us, but still traces of Agnation are to be seen in many of the modern rules of succession after death. The exclusion of females and their children from governmental functions, commonly attributed to the usage of the Salian Franks, has certainly an agnatic origin, being descended from the ancient German rule of succession to allodial property. In Agnation too is to be sought the explanation of that extraordinary rule of English Law, only recently repealed, which prohibited brothers of the half-blood from succeeding to one another's lands. In the Customs of Normandy the rule applies to, by the same mother uterine brothers only, that is, to brothers but not by the same father; and, limited in this way, it is a strict deduction from the system of Agnation, under which uterine brothers are no relations at all to one another. When it was transplanted to England, the English judges, who had no clue to its principle, interpreted it as a general prohibition against the succession of the half-blood, and extended it to consanguineous brothers, that is to sons of the same father by different wives. In all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which Blackstone attempts to explain and justify the exclusion of the half-blood.