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Aliquando autem evenit, ut liberi, qui statim ut nati sunt 13 in potestate parentum non fiant, postea tamen redigantur in potestatem. qualis est is, qui, dum naturalis fuerat, postea curiae datus potestati patris subicitur. 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.
legal significance. In many respects it was assimilated to marriage : thus Ulpian says (Dig. 32. 49. 4) parvi autem refert, uxori an concubinae quis leget, quae eius causa emta parata sunt : sane enim, nisi dignitate, nihil interest.' But the position was thought a degrading one to the woman; no honesta femina could become a concubine without an express 'testatio,' Dig. 25. 7. I. I; otherwise the relation was regarded as stuprum. A man could have but one concubine at a time, and concubinatus was incompatible with marriage : 'eo tempore quo quis uxorem habet, concubinam habere non potest : concubina igitur ab uxore solo dilectu separatur Paul. sent. rec. 2. 20. The connection was terminated by insanity of either party, except between patronus and liberta. The paternity of the children was recognised to a considerable extent ; they were capable of legitimation, section 13 inf., entitled to maintenance, and even possessed rights of succession on the father's intestacy. By the later emperors concubinatus was discouraged. Constantine denied children who were born of it any benefit under their father's will, and prohibited it altogether among high imperial officials ; but it was not made generally unlawful until the ninth century, by Leo Philosophus. If a dos were given in a marriage which violated the rules as to prohibited degrees, it escheated, when the marriage terminated, to the Treasury, Dig. 23. 2. 38. 1, ib. 52 ; Cod. 5. 5. 4.
13. In the time of Gaius children who were not in potestas at birth, owing to the nuptiae not being iustae, could sometimes be afterwards subjected to it by causae probatio, by which Latins and peregrini, with their consorts, obtained the civitas: their matrimonium thereby became legitimum, and even the children already born were subjected, by a process analogous to that of postliminium, to the resulting potestas. Among such causae were the birth of a child to a Latin father (Gaius i. 66), and justifiable mistake (ib. 67); see generally, Gaius i. 29–32, 66–75.
In Justinian's time, natural children could be subjected to potestas by legitimation, and this in three ways, two of which are mentioned in the text: (1) by oblatio curiae : i.e. the father made the son a decurio, or married the daughter to a decurio, in a provincial town. The decuriones formed a kind of town council, or body, which had to bear the burden of the magistracies (honores) and other municipal expenses (munera);
Non solum tamen naturales liberi secundum ea quae diximus in potestate nostra sunt, verum etiam ii quos adoptamus. 1 Adoptio autem duobus modis fit, aut principali rescripto aut imperio magistratus. imperatoris auctoritate adoptamus eos easve, qui quaeve sui iuris sunt. quae species adoptionis
though an honourable, it was an extremely costly function, and one which it had become practically necessary to either force or bribe persons to undertake ; in the Theodosian Code (12. 18) they were prohibited from living in the country, lest the flavour of freedom should tempt them to run away altogether. (2) Per subsequens matrimonium. Constantine and some of his successors had enacted that marriage of a man with his concubine should legitimise their (natural) offspring, provided the man had no legitimate descendants. Justinian abolished the latter restriction. The closing words of this section occasion considerable difficulty. To interpret them so as to make Justinian say that he had, by express enactment, conferred on children born after the execution of dotalia instrumenta identical privileges with those bestowed on children born before (and so in concubinatu) seems absurd : for the former class of children would be born of lawful wedlock, and so be in potestate any how, without any necessity for legislative interference. The meaning of 'praebuit' seems rather to be 'has been the occasion of their obtaining,' the sense being 'we have hereby done a service not only to the children born before the marriage, but also to those born afterwards : for these too would have been illegitimate had it not been for our enactment, which has induced the man to make a wife of the woman who before was merely his concubine ; and if he had not been induced to do so, he would have continued to live in concubinatu.' (3) Per rescriptum principis. Anastasius had permitted the adrogation of natural children in this manner, but it was forbidden by Justinus and Justinian : the latter, however, reintroduced it by two Novels (74 and 79), but allowed it only where the marriage was no longer possible, owing to the death or disappearance of the woman, and the man had no legitimate descendants.
Legitimation, owing to its consequences, could not take place without the child's consent ; '... dum et filii hoc ratum habuerint. Nam si solvere ius patriae potestatis, invitis filiis, non permissum est patribus, multo magis sub potestatem redigere invitum filium et nolentem, sive per oblationem ad curiam, sive per instrumentorum celebrationem, sive per aliam quamlibet machinationem, tanquam sortem metuentem paternam iustum non est'Nov. 89. 11. pr.
Tit. XI. 1. ‘Adoptionis nomen est quidem generale : in duas autem
dicitur adrogatio. imperio magistratus adoptamus eos easve, qui quaeve in potestate parentium sunt, sive primum gradum liberorum optineant, qualis est filius filia, sive inferiorem, qualis est nepos neptis, pronepos proneptis. Sed hodie ex 2 nostra constitutione, cum filius familias a patre naturali extraneae personae in adoptionem datur, iura potestatis naturalis patris minime dissolvuntur nec quidquam ad patrem adoptivum transit nec in potestate eius est, licet ab intestato iura successionis ei a nobis tributa sunt. si vero pater naturalis non extraneo, sed avo filii sui materno, vel si ipse pater naturalis fuerit emancipatus, etiam paterno, vel proavo simili modo paterno vel materno filium suum dederit in adoptionem: in hoc casu quia in unam personam concurrunt et naturalia et adoptionis iura, manet stabile ius patris adoptivi et naturali
species dividitur, quorum altera adoptio similiter dicitur, altera adrogatio. Adoptantur filiifamilias : adrogantur qui sui iuris sunt' Dig. 1. 7. 1. 1. Both parties in either kind of adoption must be cives, and the adopter, of course, must be sui iuris. In the parallel passage of Gaius (i. 98, 99) adrogation is said to take place populi auctoritate, and the term is explained : quod et is qui adoptat rogatur, id est, 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.' Adrogation was originally effected, after a preliminary inquiry by the pontifices, in the comitia curiata, by a legislative act of that assembly : subsequently the thirty curiae dwindled down to thirty lictors, who represented the authority of the people, and at some time after Gaius the form was superseded by imperial rescript (perinde valet . . . ac si per populum facta esset' Diocletian and Maximian in Cod. 8. 48. 2); instead of the preliminary pontifical inquiry there was an investigation by a magis. trate thereto commissioned by the Emperor, of which the main purpose was the protection of the person to be adrogated, especially against the danger of adoption by some one much poorer than himself, whose motive might be mere avarice : 'adrogationes non temere nec inexplorate committuntur. Nam comitia arbitris pontificibus praebentur, quae curiata appellantur, aetasque eius, qui adrogare vult, an liberis potius gignendis idonea sit, bonaque eius, qui adrogatur, ne insidiose appetita sint, consideratur' Gellius, noct. Att. 5. 10: this was particularly the case in the adrogatio of impubes, s 3 inf. The effects of adrogatio were to bring adrogatus under the potestas of adrogator, and with him all those persons who had before been in his own power : all his property passed to the adrogator per universitatem (Bk. iii. io inf.) until Justinian allowed the latter only the usufruct, ib. $ 2: as to the debts of adrogatus see ib. $ 3, Gaius iii. 82-84.
$ 2. Adoption stricto sensu, where a paterfamilias gives a person in
vinculo copulatum et legitimo adoptionis modo constrictum,
ut et in familia et in potestate huiusmodi patris adoptivi sit, 3 Cum autem impubes per principale rescriptum adrogatur, causa cognita adrogatio permittitur et exquiritur causa adrogationis, an honesta sit expediatque pupillo, et cum quibusdam condicionibus adrogatio fit, id est ut caveat adrogator personae publicae, hoc est tabulario, si intra pubertatem pupillus decesserit, restituturum se bona illis, qui, si adoptio facta non esset, ad successionem eius venturi essent. item non alias emancipare eos potest adrogator, nisi causa cognita digni emancipatione fuerint et tunc sua bona eis reddat. sed et si decedens pater eum exheredaverit vel vivus sine iusta causa eum emancipaverit, iubetur quartam partem ei suorum bonorum relinquere, videlicet praeter bona, quae ad patrem adoptivum transtulit et quorum commodum ei adquisivit
his power in adoption to some one else, was originally effected by a complicated process consisting of three stages. The child was mancipated by the paterfamilias to the adopting party (in the case of a son this had to be repeated three times, the first two mancipations being followed by manumission at the hands of the alienee, Gaius i. 134), the object of this being the extinction of the patria potestas ; he (or she) was then usually remancipated to the father, and by him finally ceded in iure to the adoptive parent. Another mode, practised only in the case of a son, was for the third mancipation to be made to some person different from both the other patres (pater fiduciarius), by whom he was ceded in iure to the pater adoptans. Adoption being thus a judicial act was said to take place 'imperio magistratus.' In the earlier periods the consent of the child was unnecessary, but later this was altered, Dig. 1.7. 5. For this complicated system Justinian substituted a simple declaration of the parties before a judge, which was registered in the acta, requiring, however, also the presence of three other persons who by relationship or otherwise had an interest in the matter, Cod. 8. 48. 11. Until the changes referred to in this section, the effect of adoption had been the translation of the adopted child from the potestas and family of the one parent to those of the other : to his old father he became a stranger, but acquired compensating rights of succession, etc., in his new family. Justinian enacted that in future these consequences should ensue only where the adoptive father was a natural ascendant of the child (adoptio plena); if the adoptive father was an extraneus (adoptio minus plena), the child remained in his old family, and subject to the same potestas as before, but acquired a right of succeeding his adoptive father ab intestato, Cod. 8. 48. 10.
83. The old rule was that an impubes could not be adrogated, Gell. postea. Minorem natu non posse maiorem adoptare placet : 4 adoptio enim naturam imitatur et pro monstro est, ut maior sit filius quam pater. debet itaque is, qui sibi per adrogationem vel adoptionem filium facit, plena pubertate, id est decem et octo annis praecedere. Licet autem et in locum 5 nepotis vel neptis vel in locum pronepotis vel proneptis vel deinceps adoptare, quamvis filium quis non habeat. Et tam 6 filium alienum quis in locum nepotis potest adoptare, quam nepotem in locum filii. Sed si quis nepotis loco adoptet vel 7 quasi ex eo filio, quem habet iam adoptatum, vel quasi ex illo, quem naturalem in sua potestate habet: in eo casu et filius consentire debet, ne ei invito suus heres adgnascatur. sed ex contrario si avus ex filio nepotem dat in adoptionem, non est necesse filium consentire. In plurimis autem causis 8 adsimilatur is, qui adoptatus vel adrogatus est, ei qui ex
5. 19, Ulpian, reg. 8.5; then it was permitted in special cases, apparently by imperial favour (Gaius i. 102), and eventually an epistola of Antoninus Pius (Gaius ib.) allowed it generally, though only after inquiry held, and under conditions : thus all the pupil's guardians had to sanction the act, Cod. 5. 59. 5, and, as is mentioned in the text, the adrogator had to give security for restoration of adrogatus' property to his next heirs (legitimi or pupillariter substituti) if he died below puberty ; this limit being fixed because at that date the pupillary substitutions became void, and the child, if he had not been adrogated, would have been able to make a will for himself. The tabularius to whom security was given was a servus publicus, Dig, 1. 7 18, Cod. 8. 48. 2 : cf. Gothofredus ad Cod. Theod. 8. 2. 1, and Cod. 10. 69. 3. The fourth part of the adrogator's property, to which adrogatus became entitled under the circumstances mentioned in the text, was called quarta Antonina or quarta divi Pii, and the right to claim it seems to have been extinguished by the attainment of puberty.
4. The principle adoptio naturam imitatur, at least in this application, was of comparatively late growth, for Gaius says (i. 106) 'sed et illa quaestio, an minor natu maiorem natu adoptare possit, utriusque adoptionis commune est. Cicero (pro domo 13. 14) accuses Clodius of having been adrogated by a person younger than himself, though in c. 13 he says it was done with the approval of the pontifices : cf. Suetonius, Tib. 2. The doubt was settled by the time of Modestinus, who says that in either form of adoption the adoptans must be older by at least eighteen years, Dig. 1. 7. 40. I. For the definition of this age as plena pubertas cf. Paul. sent. rec. 3. 4. 2, Dig. 40. 2. 13: 35. 1. 101. 2.
3 5. ου γαρ ανάγκη έπεσθαι τη τάξει τη ούση παρά το φυσικό πατρί Theoph.