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the order decaying through unwillingness to incur the expenses attending it, Theodosius and Valentinian permitted citizens, whether themselves members of the curia or not, to present their children born in concubinage to, and make them members of, the order (Cod. v. 27. 3), by which they became legitimate, and the heirs of their father. This mode of legitimation, which could, of course, only be adopted when the parents were rich, did not, however, make the children complete members of the father's family. They became his legitimate children, but gained no new relationship or right of succession to any other member of his family. (C. v. 27. 9.)
Constantine first established that natural children sliould be made legitimate by the subsequent marriage of their parents. Justinian required that at the moment of conception the parents should have been capable of a legal marriage; that an instrument settling the dos (instrumentum dotale), or, at least, attesting the marriage (instrumentum nuptiale), should be drawn up, and that the children should ratify the legitimation, for no one was made legitimate against his will. (Nov. 89. 11.)
If the mother was dead or had disappeared, and the marriage was thus impossible, Justinian enacted that the natural children (if there was no legitimate one) might, by an imperial rescript, be placed in the position they would have held if the marriage had taken place; and this rescript might be given to the children after the father's death, if the father, by his testament, expressed his wish to that effect. (Nov. 89. 9. 10.)
The readings of the last sentence of the text are very various, and Huschke inserts non before fuerint procreati; but the meaning of the passage would then be so obscure that it seems necessary to retain the reading adopted in most texts. .
Tit. XI. DE ADOPTIONIBUS.
Non solum tamen naturales li- Not only are our natural children, beri secundum ea, quæ diximus, in as we have said, in our power, but potestate nostra sunt, verum etiam those also whom we adopt. ii, quos adoptamus.
Gal. i. 97.
| Before the time of Justinian, the effect of adoption (see Introd. sec. 42) was to place the person adopted exactly in the position he would have held had he been born a son of the person adopting him. All the property of the adoptive son belonged to his adoptive father. The adoptive son was heir to his adoptive father, if intestate, bore his name (retaining, however, the name of his own gens with the change of -us into -anus, as Octavius, Octavianus), and shared the sacred rites of the family he entered.
Naturales liberi is here opposed to adoptivi, not, as in the last Title, to legitimi.
1. Adoptio autem duobus modis 1. Adoption takes place in two fit, aut principali rescripto aut im- ways, either by imperial rescript, or perio magistratus. Imperatoris au- by the authority of the magistrate. ctoritate adoptamus eos easve, qui The imperial rescript gives power to quæve sui juris sunt. Quæ species adopt persons of either sex who are adoptionis dicitur adrogatio. Im- sui juris; and this species of adoption perio magistratus adoptamus eos is called arrogation. By the authority easve, qui quæve in potestate pa- of the magistrate we may adopt perrentium sunt, sive primum gradum sons of either sex in the power of an liberorum optineant, qualis est filius ascendant, whether in the first degree, filia, sive inferiorem, qualis est nepos as sons and daughters, or in an inferior neptis, pronepos proneptis.
degree, as grandchildren or great
grandchildren. Gai. x. 98, 99.
A public character was always attached in ancient Roman law to so important an alteration in families as adoption. (See Introd. sec. 42.) The sanction of the curice was probably necessary to its validity, when the family of a member of the curice was affected. If the person adopted was sui juris, his entry into a new family (arrogatio) was jealously watched, as the pontifices would never allow it where there was any likelihood of the sacred rites of the family he quitted becoming extinct by his departure from it. . The form of gaining the consent of the curice was even continued when the curice were only represented by thirty lictors, until the rescript of the emperor was substituted as a means of effecting arrogations.
What were the forms of arrogation, when neither the person arrogated nor the person arrogating belonged to the body of the curio, we have no certain knowledge; but we may guess arrogation was effected by a fictitious suit, in which the person arrogated was claimed as the child of the arrogator, and let judgment go by default.
If the person adopted was under the power of another, the person under whose power he was had to release him from that power, which he did by selling him (mancipatio) three several times, which destroyed his own patria potestas (see Introd. sec. 42), and then giving him up to the adopting parent by a fictitious process of law, called “in jure cessio,' in which he was claimed and acknowledged as the child of the person who adopted him, and pronounced to be so by the magistrate before whom the proceeding was held (imperio magistratus). The word avloptio was common to both processes, both to arrogatio, said by Gaius to be derived from rogo, because the person arrogated was asked before the curiæ whether he consented (Gal. i. 99), and to adoptio in its more limited sense of the adoption of a person not sui juris. For the ceremonies previously required for the adoption of a person alieni juris, Justinian substituted the simple proceeding of executing, in presence of a magistrate, a deed, declaring the fact of the adoption -the parties to the adoption, that is, the person giving, the person given, and the person receiving, being personally present to give their consent. But it was sufficient if the consent of the party
adopted was expressed by his not declaring his dissent, non contradicente. (C. viii. 48. 11; Tit. 12. 10.)
2. Sed hodie ex nostra consti. 2. But now, by our constitution, tutione, cum filinsfamilias a patre when a filiusfamilias is given in adopnaturali extraneæ personæ in ado- tion by his natural father to a stranger, ptionem datur, jura potestatis natu- the power of the natural father is not ralis patris minime dissolvuntur nec dissolved ; no right passes to the adopquidquam ad patrem adoptivum tive father, nor is the adopted son in transit nec in potestate ejus est, his power, although we allow such son licet ab intestato jura successionis the right of succession to his adoptive ei a nobis tributa sunt. Si vero father dying intestate. But if a natupater naturalis non extraneo, sed ral father should give his son in adopavo filii sui materno, vel si ipse tion, not to a stranger, but to the son's pater naturalis fuerit emancipatus, maternal grandfather; or, supposing etiam paterno, vel proavo simili the natural father has been emancimodo paterno vel materno filium pated, if he gives the son in adoption suum dederit in adoptionem : in hoc to the son's paternal grandfather, or casu quia in unam personam con- to the son's paternal great-grandfather; currunt et naturalia et adoptionis or if the natural father gives the son jura, manet stabile jus patris ado- in adoption to the son's maternal grandptivi, et naturali vinculo copulatum father, then in these cases, as the et legitimo adoptionis modo constri- rights of nature and adoption concur ctum, ut et in familia et in potestate in the same person, the power of the hujusmodi patris adoptivi sit. adoptive father, knit by natural ties
and strengthened by a legal form of adoption, is preserved undiminished, so that the adopted son is both in the family, and in the power, of his adop
C. vii. 48. 10. The change made by Justinian in the law of adoption (C. viii. 48. 10) completely altered its character. It used sometimes to happen under the old law, that a son lost the succession to his own father by being adopted, and to his adoptive father by a subsequent emancipation. Justinian wished to remedy this effectually. He therefore provided that the son given in adoption to a stranger, that is, any one not an ascendant, should be in the same position to his own father as before, but gain by adoption the succession to his adoptive father, if the adoptive father died intestate. The adoptive father was not, however, bound, like the natural father (Bk. ii. Tit. 18), to leave him a share of his property, if he made à will. In this kind of adoption, which commentators have termed the adoptio minus plena, the adoptive son still remained in the family of his natural father; and the only change which adoption caused, was, that he acquired a right of succession to his adoptive father, if intestate. (Bk. iii. Tit. 1. 14.)
When the person to whom the adoptive son was given, was one of his own ascendants, then the old law was permitted to regulate the effects of the adoption, and the adoption in this case was what the commentators term adoptio plena. The adoptive son entered the family of the ascendant, who became his adoptive father. A grandson was not naturally in the same family with his maternal grandfather, and could only enter the family of his
maternal grandfather by being adopted. If he had been born after his father had been emancipated, he would not be in the same family with his paternal grandfather, who might therefore wisb to adopt him. It was even possible that he might be adopted by his own father; for if born before his father was emancipated, his grandfather might have emancipated his father without emancipating him, and then might afterwards have given him in adoption to his father.
3. Cum autem impubes per prin- 3. When any one, under the age of! cipale rescriptum adrogatur, causa puberty, is arrogated by imperial re- ! cognita adrogatio permittitur et script, the arrogation is only allowed exquiritur causa adrogationis, an when inquiry has been made into the honesta sit expediatque pupillo, et circumstances of the case. It is asked, cum quibusdam condicionibus ad- what is the motive leading to the arrorogatio fit, id est ut caveat adro- gation, and whether the arrogation is gator persona publicæ, hoc est honourable and expedient for the tabulario, si intra pubertatem pu- pupil. And the arrogation is always pillus decesserit, restituturum se made under certain conditions ; the bona illis, qui, si adoptio facta non arrogator is obliged to give security to esset, ad successionem ejus venturi a public person, that is, a notary, that essent. Item non alias emancipare if the pupil should die within the age eus potest adrogator, nisi causa of puberty, he will restore all the procognita digni emancipatione fuerint perty to those who would have sucet tunc sua bona eis reddat. Sed ceeded him if no adoption had been et si decedens pater eum exhereda- made. Nor, again, can the arrogator verit vel vivus sine justa causa eum emancipate the person arrogated, unemancipaverit, jubetur quartam par- less, on examination into the case, it tem ei suorum bonorum relinquere, appears that the latter is worthy of videlicet præter bona, quæ ad patrem emancipation ; and then the arrogaadoptivum transtulit et quorum com- tor must restore the property belongmodum ei adquisivit postea.
ing to the person he emancipates.
afterwards. Gal. i. 102; D. i. 7. 18 ; D. Axxviii. 5. 13. Neither women nor children under the age of puberty could be arrogated. Arrogation was first permitted in the case of the latter by Antoninus Pius (ULP. Reg. viii. 5; D. i. 7. 21), but only after strict inquiry had been made into the circumstances of the case. Besides the general inquiry which took place in every case of adoption, as to the ages of the parties, and the possible injustice to other members of the family, to which the introduction of a new member might give rise, in this case inquiry was made whether the character and circumstances of the proposed arrogator were such as to make it probable that the arrogation would be beneficial to the person arrogated. Further, certain regulations were made, designed to protect the property of the impubes, which were briefly as follows :- 1. If the arrogated son died before puberty,
the arrogator had to restore the property of the son to that son's natural heirs. 2. If the arrogated son was disinherited or was emancipated without good reason before puberty, the arrogated son received back all his own property, and also received onefourth of the property of the arrogator, called the quarta D. Pii, or quarta Antonina, as having been first required by that emperor. 3. If the son was emancipated before puberty for a good reason, the son received his own property from the arrogator, but nothing more. 4. Lastly, if the arrogated son, on attaining puberty, wished to rescind the arrogation, he was at liberty to do so, if he could show it was prejudicial to him. Under Justinian arrogated persons and persons adopted by ascendants were treated as cognati in the succession to the natural father (Bk. iii. 6. 3); and, in the intestate succession to the arrogated son, the arrogator was postponed to the children and brothers and sisters of the arrogated son (Bk. iii. 10. 2), and the arrogator had only the usufruct of the property of the arrogated son while the arrogated son was living.
There is some little doubt when arrogation was first made per rescriptum principale. However, Ulpian (Reg. viii. 5) expresses himself too plainly to admit of a doubt that in his time arrogation was made per populum (i.e. by the curiæ represented by lictors), and not by imperial licence. He further adds, that arrogation was only made at Rome (Reg. viii. 4), but, of course, when the system of permitting it by imperial rescript was adopted, place could have nothing to do with arrogation.
The tabularii here spoken of were public notaries, who kept public registers (tabula), on which formal acts were recorded.
4. Minorem natu non posse ma- 4. A younger person cannot adopt jorem adoptare placet : adoptio enim an older; for adoption imitates nanaturam imitatur, et pro monstro ture; and it seems unnatural, that a est, ut major sit filius quam pater. son should be older than his father. Debet itaque is, qui sibi per adroga- Any one, therefore, who wishes either tionem vel adoptionem filium facit, to adopt or arrogate a son should be plenia pubertate, id est decem et the elder by the term of complete octo annis præcedere.
puberty, that is, by eighteen years. D. i. 7. 15. 3; D. i. 7. 16 ; D. i. 7. 40. 1. As long as the required number of years intervened, there was no further positive rule as to age; but it being in the discretion of the emperor to allow arrogation or not, there was generally a disposition to refuse it unless the person who wished to adopt was of such an age, or in such physical circumstances, as to make it improbable he should have children of his own. (D. i. 7. 15.) But unmarried persons might adopt. (D. i. 7. 30.)
The legal age of puberty in males was fourteen ; but eighteen was the age at which the body was considered to be fully developed in all cases, plena pubertas.
5. Licet autem et in locum ne- 5. But a person may adopt another potis vel neptis vel in locum prone- as grandson or granddaughter, great