The Agnatic Family
The agnatic family was the aggregate of those who are bound together by a common paternal power. Members of the same family were called agnates. Agnates were all those who were subject to the same paternal power, or who would be subject thereto, if the common ancestor or paterfamilias were alive. Agnates might be related to each other by blood, but this was not necessarily the case.
They need not be so related, nor were all blood relatives agnates. The agnatic relation was created by any one of the modes by which one may become a member of the agnatic fjmiily.
These modes are:
- Birth
- Adoption
- Marriage
All legitimate children of a Roman marriage (with manus) became by birth members of their father's agnatic family. So also all legitimate descendants, grandchildren, etc., through the males were likewise agnates. But the children or other descendants of daughters, married with manus, were not members of the same agnatic family to which their mother, or grandmother, etc., belonged. The reason for this was that a daughter lost by marriage her membership in her father's family and became a member of her husband's family.
She and her children were not agnates of her father, brothers, etc., but of her husband, and his agnates. By marriage she had passed from the paternal power of her father (or of his father or grandfather, as the case might be) into the power of her husband (or his father, . etc. ) .
A mother was not, as mother, the agnate of her own children. If married was manus she was under the power of her husband, just as her children were, and she was regarded as in the legal position of daughter to her husband, and hence as agnatic sister of her own children. If married without manus she was still an agnate of her father's family, and had no agnatic connection with the family of her husband. She was, therefore, not related — i. e., by agnation — to her own children. Under the free marriage the mother and her children did not belong to the same family.
The acquisition of the agnatic status by adoption will be more fully considered later. As just pointed out, a woman became by marriage an agnate of her husband's family and ceased to be an agnate of her father's family. The marriage of a man did not affect his agnatic status.
A person might cease to be an agnate of the family to which he or she belonged by
- Death
- Marriage (in case of a woman)
- Adoption into another family
- Emancipation
From the description of the agnatic family just given it will be seen that practically all persons bearing the family name were members of the agnatic family. Thus, to employ an illustration suggested by Professor Hadley, take the family of Governor Winthrop of Massachusetts.
All of his children upon their birth are named Winthrop. They are agnates of their father and of each other. But if a daughter marries into a family of a different name, she is no longer a Winthrop. And she has ceased to be an agnate of the Winthrop family, but belongs to her husband's family. So also of her children. But a son, though he marries, is still a Winthrop and an agnate of that family. And his children also are Winthrops and Winthrop agnates, except daughters who marry into other families.
The wife of the Governor became a Winthrop by her marriage to the Governor. She thereby became his agnate, and so of the wives of the sons of the Governor and their sons, etc. Again, suppose the Governor had adopted a child (which he could have done by the Roman law, though not by the common law) and given him the Winthrop name, such child, whether male or female, would thereby become a Winthrop agnate. The illustration does not hold in the case of an emancipated child. Such a child still bears the family name, but he is no longer an agnate of his former family.
The agnatic family as above described was partly a natural and partly an artificial institution, that is, membership in the family might have a natural foundation — relationship on the father's side, or be artificially established by marriage or adoption. So, also, agnatic relationship might be artificially extinguished, as by marriage or adoption into another family or by emancipation.