Ancient Law Chapter 5

and sisters； if we take that of the grandfather and grandmother， then uncles， aunts， and their descendants will also be included in the notion of Cognation， and following the same process a larger number of Cognates may be continually obtained by choosing the starting point higher and higher up in the line of ascent. All this is easily understood by a modern； but who are the Agnates？ In the first place， they are all the Cognates who trade their connexion exclusively through males. A table of Cognates is， of course， formed by taking each lineal ancestor in turn and including all his descendants of both sexes in the tabular view； if then， in tracing the various branches of such a genealogical table or tree， we stop whenever we come to the name of a female and pursue that particular branch or ramification no further， all who remain after the descendants of women have been excluded are Agnates， and their connexion together is Agnatic Relationship. I dwell a little on the process which is practically followed in separating them from the Cognates， because it explains a memorable legal maxim， "Mulier est finis familia" —— a woman is the terminus of the family. A female name closes the branch or twig of the genealogy in which it occur. None of the descendants of a female are included in the primitive notion of family relationship.

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

　　What then is the reason of this arbitrary inclusion and exclusion？ Why should a conception of Kinship， so elastic as to include stranger brought into the family by adoption， be nevertheless so narrow as to shut out the descendants of a female member？ To solve these questions， we must recur to the Patria Potestas. The foundation of Agnation is not the marriage of Father and Mother， but the authority of the Father. All persons are Agnatically connected together who are under the same Paternal Power， or who have been under it， or who might have been under it if their lineal ancestor had lived long enough to exercise his empire. In truth， in the primitive view， Relationship is exactl

y limited by Patria Potestas. Where the Potestas begins， Kinship begins； and therefore adoptive relatives are among the kindred. Where the Potestas ends， Kinship ends； so that a son emancipated by his father loses all rights of Agnation. And here we have the reason why the descendants of females are outside the limits of archaic kinship. If a woman died unmarried， she could have no legitimate descendants. If she married， her children fell under the Patria Potestas， not of her Father， but of her Husband， and thus were lost to her own family. It is obvious that the organisation of primitive societies would have been confounded， if men had called themselves relatives of their mother's relatives. The inference would have been that a person might be subject to two distinct Patriae Potestates； but distinct Patriae Potestates implied distinct jurisdictions， so that anybody amenable to two of them at the same time would have lived under two different dispensations. As long as the Family was an imperium in imperio， a community within the commonwealth， governed by its own institutions of which the parent was the source， the limitation of relationship to the Agnates was a necessary security against a conflict of laws in the domestic forum.

　　The Parental Powers proper are extinguished by the death of the Parent， but Agnation is as it were a mould 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

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　　It may be shown， I think， that the Family， as held together by the Patria Potestas， is the nidus out of which the entire Law of Persons has germinated. Of all the chapters of that Law the most important is that which is concerned with the status of Females. It has just been stated that Primitive Jurisprudence， though it does not allow a Woman to communicate any rights of Agnation to her descendants， includes herself nevertheless in the Agnatic bond. Indeed， the relation of a female to the family in which she was born is much stricter， closer， and more durable than that which unites her male kinsmen. We have several times laid down that early law takes notice of Families only； this is the same thing as saying that it only takes notice of persons exercising Patria Potestas， and accordingly the only principle on which it enfranchises a son or grandson at the death of his Parent， is a consideration of the capacity inherent in such son or grandson to become himself the head of a new family and the root of a new set of Parental Power. But a woman， of course， has no capacity of the kind， and no title accordingly to the liberation which it confers. There is therefore a peculiar contrivance of archaic jurisprudence for retaining her in the bondage of the Family for life. This is the institution known to the oldest Roman law as the Perpetual Tutelage of Women， under which a Female， though relieved from her Parent's authority by his decease， continues subject through life to her nearest male relations as her Guardians. Perpetual Guardianship is obviously neither more nor less than an artificial prolongation of the Patria Potestas， when for other purposes it has been dissolved. In India， the system survives in absolute completeness， and its operation is so strict that a Hindoo Mother frequently becomes the ward of her own sons. Even in Europe， the laws of the Scandinavian nations respecting women preserved it until quite recently. The invaders of the Western Empire had it universally among their indigenous usages， and indeed their ideas on the subject of Guardianship， in all its forms， were among the most retrogressive of those which they introduced into the Western world. But from the mature Roman jurisprudence it had entirely disappeared. We should know almost nothing about it， if we had only the compilations of Justinian to consult； but the discovery of the manuscript of Gaius discloses it to us at a most interesting epoch， just when it had fallen into complete discredit and was verging on extinction. The great jurisconsult himself scouts the popular apology offered for it in the mental inferiority of the female sex， and a considerable part of his volume is taken up with descriptions of the numerous expedients， some of them displaying extraordinary ingenuity， which the Roman lawyers had devised for enabling Women to defeat the ancient rules. Led by their theory of Natural Law， the jurisconsults had evidently at this time assumed the equality of the sexes as a principle of their code of equity. The restrictions which they attacked were， it is to be observed， restrictions on the disposition of property， for which the assent of the woman's guardians was still formally required. Control of her person was apparently quite obsolete.

　　Ancient Law subordinates the woman to her blood-relations， while a prime phenomenon of modern jurisprudence has been her subordination to her husband. The history of the change is remarkable. It begins far back in the

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