BOOK II, a Cf. Steph. ii. b As to sub scriptio, see above, p. 43. Neither can children begotten out of wedlock be placed under the potestas of the person that begot them, since he is not juristically accounted their father. But legislation of the Christian imperial, and especially later, times in different ways enabled natural fathers to obtain legal recognition, as though begotten in wedlock, of their liberi naturales,' or children by concubinage. This is LEGITIMATION. It can occur (a) per subsequens matrimonium; (8) per curiae oblationem -The legitimated children rank fully with those begotten in wedlock." Inst. i. 10, § ult. Aliquando autem evenit, ut liberi qui statim ut nati sunt in potestate parentum non fiant, postea tamen redigantur in potestatem. Qualis est is, qui dum naturalis fuerat, postea curiae datus potestati patris subiicitur. Nec non is, qui a muliere libera procreatus, cuius matrimonium minime legibus interdictum fuerat, sed ad quam pater consuetudinem habuerat, postea ex nostra constitutione dotalibus instrumentis compositis in potestate patris efficitur: quod et aliis, si ex eodem matrimonio fuerint procreati, similiter nostra constitutio praebuit.-[Imp. Iustinian. : si quis mulierem quam in contubernio suo habuerat, praegnantem fecerit, postea autem adhuc gravida muliere constituta dotalia fecerit instrumenta et puer vel puella editus vel edita sit, iusta patri suboles nascatur et in potestate efficiatur.-C. 5, 27, 11, 3.]1 his children, the children shall not be under his potestas unless the Emperor have brought them into it, and this he does only if, upon investigation of the case, he consider it advantageous to the children. . . . Likewise, if Roman citizenship be bestowed upon any man and his pregnant wife, although the child when born is a Roman citizen, yet he is not under the potestas of the father; and this is declared in a rescript' of the late Emperor Hadrian. 1 Sometimes it happens that children who are not under the § 52. ARTIFICIAL CREATION BY AN ACT IN THE LAW ADOPTION." BOOK II. a Cf. Maine, over 'Anct. Law," pp. 130-132. The Upon legal Fictions in Not merely over one's own children, but also strangers, can the patria potestas be acquired. legal transaction by which any one is at discretion general, ibid. subjected to the patria potestas of another-with whom ch.ii.; Savigny, he enters into the relation of a child or grandchildis called ADOPTION in the wider sense. Two kinds of Cicero, vol. i. adoption are distinguished: adoption in the narrower Brown, s.v. sense, and arrogation. 'Syst.' i. 295; Austin, pp. 629631; Long's pp. 181-2; For other instances of Ulp. viii. 1 Non tantum naturales liberi in fiction, see § potestate parentum sunt, sed etiam adoptivi.' 36, 53, 56, 90, 154, 194, 200, Paul.: Adoptare quis nepotis loco potest, etiam 204. si filium non habet.-1. 37 pr., D. h. t. (=de adopt. 1, 7).2 Mod. Quod adoptionis nomen est quidem generale; in duas autem species dividitur, quarum altera adoptio similiter dicitur, altera adrogatio. Adoptantur filiifamilias, adrogantur qui sui iuris sunt.-1. 1, § 1 eod.3 Gaius, p. 92; power of their parents at the moment of their birth, nevertheless come under their power later on. Thus, for example, a natural son who has been afterwards offered to the municipal senate is made subject to the power of the father. Likewise Cf. Moyle ad one begotten of a free woman with whom marriage had in no loc.; Poste on way been forbidden by the law, but with whom the father had Hunter, p. 202. cohabited, afterwards, by virtue of our constitution, is brought under the power of the father upon deeds settling a dowry being drawn up. And this is granted by our constitution to others likewise if they have been begotten from the same marriage.—If any one have made a woman pregnant with whom he had cohabited, but subsequently, while the woman is still pregnant, has executed deeds settling a dowry, and a son or daughter is born, such child shall be by birth the lawful offspring of the father, and be rendered subject to his potestas. 1 Not only are natural children under the potestas of their parents, but adoptive children as well. 2 A man can adopt in place of a grandson, even if he have no son. 3 The expression 'adoption' is indeed a general one, but it is divided into two kinds, of which one is also called 'adoption,' ន BOOK II. a Cf. infra, Gai. i. 134; C. 8, 47, l. fi. The following are the requisites of adoption in general. (1) On the part of the one adopting, capacity for patria potestas and for marriage, as well as being older than the adoptive child. Feminae adoptare non possunt, quia nec naturales liberos in potestate sua habent; sed ex indulgentia principis ad solatium liberorum amissorum adoptare possunt.-§ 10, I. h. t. (= de adopt. 1, 11).1 -et hi qui generare non possunt, quales sunt spadones, adoptare possunt, castrati autem non possunt.-1. 9, I. eod. Paul. Et qui uxores non habent, filios adoptare possunt.-1. 30, D. h. t.3 Minorem natu non posse maiorem adoptare placet adoptio enim naturam imitatur. Debet itaque is, qui sibi per adrogationem vel adoptionem filium facit, plena pubertate, i.e. decem et octo annis praecedere.—§ 4, I. h. t.‘ (2) Consent of the person interested." Cels. In adoptionibus eorum dumtaxat, qui suae potestatis sunt, voluntas exploratur; sin autem a patre dantur in adoptionem, in his utriusque arbitrium spectandum est, vel consentiendo vel non contradicendo (Iust.).-J. 5, D. h. t.3 the other arrogation.' Filiifam. are adopted, those that are sui iuris are arrogated. 1 Women cannot adopt, because they have not their actual children under their power; but by favour of the Emperor they may adopt as a consolation for the loss of children. And those who cannot procreate, such as are born impotent, may adopt; but persons made impotent cannot. 3 And unmarried men can take adoptive sons. 4 It is held that a younger person cannot adopt an older; for adoption follows the analogy of nature. Therefore he that makes any one his son by arrogation or adoption ought to be the older by the full term of puberty, that is, by eighteen years. The will is ascertained in adoptions alone of those who are Paul. Cum nepos adoptatur quasi ex filio natus, consensus filii exigitur, idque etiam Iulianus scribit.-1. 6 eod.1 Sed ex contrario si avus ex filio nepotem dat in adoptionem, non est necesse filium consentire. -§ 7, I. h. t.2 (3) Absence of positive restrictions. Paul. : Eum quem quis adoptavit, emancipatum vel in adoptionem datum iterum non potest adoptare.-1. 37, § 1, D. h. t.3 The result of adoption consists in the adopted person's entrance into the familia and agnatic relationship of the adoptive father." In plurimis autem causis adsimilatur is, qui adoptatus vel adrogatus est, ei qui ex legitimo matrimonio natus est.-§ 8, I. h. t. Paul. Qui in adoptionem datur, his, quibus adgnascitur, et cognatus fit, quibus vero non adgnascitur, nec cognatus fit: adoptio enim non ius sanguinis, sed ius adgnationis adfert.-1. 23, D. h. t. Mod. In adoptionem datus aut emancipatus their own masters; but if any be given by their father in adop tion, the will of each of such must be loɔked to, either as consenting or not refusing. 1 When any one is adopted as a grandson, as though born from a son, the consent of the son is required. So also writes Julian. 2 But if, on the other hand, a grandfather gives in adoption a grandson (born) from his son, it is unnecessary for the son to give his consent. 3 A person adopted by any one, and emancipated or given in adoption [by him], he cannot again adopt. Now, in most cases, a person that has been adopted or arrogated is put on the same footing as one sprung from a lawful marriage. BOOK II. Part I. a § 43. He that is given in adoption becomes the cognate also of those to whom he accrues by adoption,' but he does not become As Lewis and the cognate of those to whom he does not accrue by adoption; Dicty.' s. Short, 'Latin for adoption transfers no right of blood, but (only) an agnatic Agnascor. right. BOOK II. quascumque cognationes adfinitatesque habuit, retinet, adgnationes perdit; sed in ea familia, ad quam per adoptionem venit, nemo est illi cognatus praeter patrem eosve, quibus adgnascitur; adfinis autem ei omnino in ea familia nemo est.-D. 38, IO, 4, 10.1 Arrogation, according to ancient Law, was effected in the comitia curiata with the co-operation of the pontifices-who had at the same time to examine the causa adrogationis '-and it took the form of an ordinary statute (populi auctoritate); according to later Law, it takes place by imperial rescript (principis auctoritate). Ulp. viii. 2: Illa adoptio quae per populum fit, specialiter adrogatio dicitur." Gai. i. § 99 Populi auctoritate adoptamus eos qui sui iuris sunt; quae species adoptionis dicitur adrogatio, quia et is, qui adoptat, rogatur (i.e. interrogatur), an velit eum, quem adoptaturus sit, iustum sibi filium esse, et is, qui adoptatur, rogatur, an id fieri patiatur, et populus rogatur, an id fieri iubeat.3 Gell. v. 19, §§ 4-6: Adrogantur hi, qui cum sui iuris sunt, in alienam sese potestatem tradunt 1 He that has been given in adoption or emancipated retains the relationships and connections he has had, agnatic relationships he loses; but in the family into which he passes by adoption no one is his cognate save his father or those to whom he accrues by adoption; whilst in such family no one at all is related to him by affinity. 2 That adoption which is effected by the intervention of the populus is specially called arrogation. By the authority of the populus we adopt those persons who are sui iuris, and this species of adoption is called 'arrogation,' because both he who is adopting is rogated (that is, is interrogated) whether he wishes that the one whom he is about to adopt should be his lawful son, and he who is being adopted is rogated whether he submits to such act, and the populus is rogated whether they order the performance thereof. |