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potis vel proneptis vel deinceps adoptare, quamvis filium quis non habeat.

grandson or great-granddaughter, or any other descendant, although he has

no son.

It would have seemed, without express enactment, that a person, to have a grandson in his power, must have or have had a son, as the sons of his daughter would not be in his power. But, as we know, the maternal grandfather might adopt. With respect to the degrees of marriage, it sometimes made an important difference whether a person was adopted as a son or grandson. The natural (i.e. non-adoptive) granddaughter, for instance, of the person adopting would be cousin or niece of the person adopted, according as he was adopted as a grandson or son, and might marry him in the one case, and not in the other.

6. Et tam filium alienum

in locum nepotis potest adoptare,

quam nepotem in locum filii.

7. Sed si quis nepotis loco adoptet, vel quasi ex eo filio, quem habet jam 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.

man the

another as his grandson, and the grand

son of another as his son.

7. If a man adopts a grandson to be the son of a son already adopted, or of a natural son in his power, the consent of this son ought first to be obtained, that he may not have a suus heres given him against his will. But, on the contrary, if a grandfather gives in adoption his grandson by a son, the consent of the son is not necessary.

D. i. 7. 6. 10. 11; D. xxiii. 1. 16. 1.

A grandson could be adopted either generally, when he was supposed to be the issue of a deceased son, and so was sui juris at the death of the grandfather; or, specially as the son of a particular son, in which case he came under that son's power when the grandfather died. The grandfather could at his pleasure diminish, but could not add to the number of his son's family: because otherwise the son would have had a suus heres (see Introd. sec. 77) forced on him against his will, to take a share of his property.

8. In plurimis autem causis adsimilatur is, qui adoptatus vel adrogatus est, ei, qui ex legitimo matrimonio natus est. Et ideo si quis per imperatorem sive apud prætorem vel apud præsidem provinciæ non extraneum adoptaverit, potest eundem alii in adoptionem dare.

8. He who is either adopted or arrogated is assimilated, in many points, to a son born in lawful matrimony; and therefore, if any one adopts by imperial rescript, or if he adopts before the prætor or the præses of a province, any one who is not a stranger, he can afterwards give in adoption to another the person whom he has adopted.

GAI. i. 105.

The text says that the adoptive son is assimilated to the natural in plurimis causis, and not altogether; because, among other differences, if the adoptive son left his adoptive family, he ceased to have any relationship whatever to its members; but the

natural son was always cognatus to his own blood relations; although, by emancipation or adoption, he might cease to be agnatus to them.

Under Justinian's legislation the person adopting a stranger had no patria potestas over him at all, and therefore could not exercise such a power as that of giving his adoptive son in adoption to another person. If the adoption was made by imperial rescript, if, that is, it was an arrogation that took place, the arrogator had the patria potestas in all cases.

When once the tie of adoption was dissolved, all the relations created by it were entirely at an end, except that marriage was forbidden between the person adopting and the person adopted. (See Tit. 10. 1.) In omni fere jure, finita patris adoptivi potestate, nullum ex pristino retinetur vestigium. (D. i. 7. 13.) But the tie could never again be renewed between the same persons. (D. i. 7. 37. 1.)

9. Sed et illud utriusque adoptionis commune est, quod et hi, qui generare non possunt, quales sunt spadones, adoptare possunt, castrati autem non possunt.

9. It is a rule common to both kinds of adoption, that persons, although incapable of procreating, as, for instance, impotent persons, may, but those who are castrated, cannot, adopt.

GAI. i. 103.

The distinction was drawn because it was considered as never perfectly certain that the former (spadones) would not at some time or other have children of their own.

10. Feminæ quoque adoptare non possunt, quia nec naturales liberos in potestate sua habent: sed ex indulgentia principis ad solatium liberorum amissorum adoptare pos

sunt.

10. Women, also, cannot adopt; for they have not even their own children in their power; but by the indulgence of the emperor, as a comfort for the loss of their own children, they are allowed to adopt.

GAI. i. 104; C. viii. 48. 5.

Women could not adopt, because the meaning of adoption was that the person adopted passed into the patria potestas of the person adopting. The adoption mentioned in the text (which was permitted by a constitution of Diocletian and Maximian, C. viii. 48. 5), only placed the adopted children in the same relation to the woman as her own children would have held. She gained nothing like patria potestas over them.

11. Illud proprium est illius adoptionis, quæ per sacrum oraculum fit, quod is, quiliberos in potestate habet, si se adrogandum dederit, non solum ipse potestati adrogatoris subicitur, sed etiam liberi ejus in ejusdem fiunt potestate tamquam nepotes. Sic enim et divus Augustus non ante Tiberium adoptavit, quam is Germanicum adoptavit: ut protinus ado

11. Adoption by the rescript of the emperor has this peculiarity. If a person, having children under his power, should give himself in arrogation, not only does he submit himself to the power of the arrogator, but his children are also in the arrogator's power, being considered his grandchildren. It was for this reason that Augustus did not adopt Tiberius until Tiberius

ptione facta incipiat Germanicus Au- had adopted Germanicus; so that gusti nepos esse. directly the adoption was made, Germanicus became the grandson of Augustus.

GAI. i. 107.

This is said to be an incident of arrogation only, because when a person not sui juris was adopted, his children were not in his power, and so he could not transfer them to the power of his adoptive father; into which they only came after the death of the person in whose power their own natural father was.

All the property of the person arrogated became, before Justinian's time, the property of the arrogator. (See Bk. iii. Tit. 10.) The adoptive son, as he was previously in the power of his natural father, had no property to pass.

12. Apud Catonem bene scriptum refert antiquitas, servi si a domino adoptati sint, ex hoc ipso posse liberari. Unde et nos eruditi in nostra constitutione etiam eum servum, quem dominus, actis intervenientibus, filium suum nominaverit, liberum esse constituimus, licet hoc ad jus filii accipiendum ei non sufficit.

12. Cato, as we learn from the ancients, has with good reason written, that slaves, when adopted by their masters, are thereby made free. In accordance with which opinion, we have decided by one of our constitutions, that a slave to whom his master by a solemn deed gives the title of son is thereby made free, although he does not acquire thereby the rights of a son. C. vii. 6. 10.

It is doubtful whether slaves could be adopted, so as to become members of the family of the person adopting them. Aulus Gellius (Noct. Attic. v. 9) says that the majority of the ancient jurists, including Sabinus, held that they could. Theophilus says Cato was of the contrary opinion. They certainly became freedmen, and never ingenui by adoption; even a freedman never became ingenuus by adoption (D. i. 7. 26), and he could only be adopted by his patron (D. i. 7. 15), and on a good ground, such as the patron having no children. (C. viii. 48.)

TIT. XII. QUIBUS MODIS JUS POTESTATIS SOLVITUR.

Videamus nunc, quibus modis ii, qui alieno juri subjecti sunt, eo jure liberantur. Et quidem servi quemadmodum potestate liberantur, ex his intellegere possumus, quæ de servis manumittendis superius exposuimus. Hi vero, qui in potestate parentis sunt, mortuo eo sui juris fiunt. Sed hoc distinctionem recipit. Nam mortuo patre sane omnimodo filii filiæve sui juris efficiuntur. Mortuo vero avo non omnimodo nepotes neptesque sui juris fiunt, sed ita, si post

Let us now inquire in what ways persons in the power of others are freed from it. How slaves are freed from the power of their masters may be learnt from what we have already said with regard to manumission. Those who are in the power of an ascendant become sui juris at his death; a rule, however, which admits of a distinction. For when a father dies, his sons and daughters become undoubtedly sui juris; but when a grandfather dies, his grandchildren do not

mortem avi in potestatem patris sui recasuri non sunt: itaque, si moriente avo pater eorum et vivit et in potestate patris sui est, tunc post obitum avi in potestate patris sui fiunt si vero is, quo tempore avus moritur, aut jam mortuus est aut exiit de potestate patris, tunc hi, quia in potestatem ejus cadere non possunt, sui juris fiunt.

necessarily become sui juris, but only if on the grandfather's death they do not fall under the power of their father. Therefore, if their father is alive at the death of their grandfather, and was in his power, then, on the grandfather's death, they become subject to the power of their father. But, if at the time of the grandfather's death their father is either dead, or has already passed out of the grandfather's power by emancipation, then, as they cannot fall under the power of their father, they become sui juris.

GAI. i. 124. 126, 127.

The modes in which the patria potestas was ended were1. The death of the parent: 2. The parent or son suffering loss of freedom or of citizenship; 3. The son attaining certain dignities; 4. Emancipation. All these modes are treated of in this Title.

1. Cum autem is, qui ob aliquod maleficium in insulam deportatur, civitatem amittit, sequitur ut, quia eo modo ex numero civium Romanorum tollitur, perinde acsi mortuo eo desinant liberi in potestate ejus esse. Pari ratione et si is, qui in potestate parentis sit, in insulam deportatus fuerit, desinit in potestate parentis esse. Sed si ex indulgentia principali restituti fuerint, per omnia pristinum statum recipiunt.

1. If a man, convicted of some crime, is deported to an island, he loses the rights of a Roman citizen; whence it follows, that the children of a person thus removed from the list of Roman citizens cease to be under his power, exactly as if he was dead. Equally, if a son is deported, does he cease to be under the power of his ascendant. But, if by the favour of the emperor any one is restored, he regains his former position in every respect. GAI. i. 128.

The patria potestas belonging exclusively to citizens, and being necessarily exercised over citizens, when a parent or son lost the rights of citizenship, or, as it was termed, underwent a media capitis deminutio (see Tit. 16. 2), the patria potestas was necessarily at an end. (ULP. Reg. x. 3.) The punishment of deportatio in insulam consisted in the condemned being confined within certain local bounds, whether really those of an island, or of some prescribed space of the mainland, and being considered as civilly dead, deportatus pro mortuo habetur (D. xxxvii. 4. 10. 8), and looked on as peregrinus, not as a civis. (ULP. Reg. x. 3.) If the condemned was recalled, and by the pardon of the emperor all the effects of his punishment were done away, he was said to be restitutus in integrum: he then resumed all his civil rights, and was placed as exactly as possible in the position which he would have held, had he never been deportatus. (Cod. ix. 51. 1.)

The subject of capitis deminutio is resumed in Title 16 in. connection with the position of agnati with regard to tutorships. 2. A father who is merely relegated to an island, still retains his children

2. Relegati autem patres in insulam in potestate sua liberos reti

nent; et e contrario liberi relegati in potestate parentum remanent.

in his power; and, conversely, a child who is relegated still remains in the power of his father.

D. xlviii. 22. 4.

The relegatus was merely forbidden to leave a certain spot, and his civil status was in no way altered. (See OVID, Trist. v. 11.)

3. Pœnæ servus effectus filios in potestate habere desinit. Servi autem pœnæ efficiuntur, qui in metallum damnantur et qui bestiis subiciuntur.

3. When a man becomes a 'slave of punishment,' he ceases to have his sons in his power. Persons become 'slaves of punishment' who are condemned to the mines, or exposed to wild beasts.

D. xlviii. 19. 17. 19.

A slave had no legal power over his children; in whatever way, therefore, a father became a slave, he lost his power over his children. When a person was sentenced to work in the mines, or to contend with wild beasts in the arena, punishments only inflicted for very great crimes, he became, by the mere operation of his sentence, a slave. But as there was no master whose slave he could be considered, it was said that he became the slave of the punishment (servus pœna).

4. Filiusfamilias si militaverit, vel si senator vel consul fuerit factus, manet in patris potestate. Militia enim vel consularia dignitas patris potestate filium non liberat. Sed ex constitutione nostra summa patriciatus dignitas illico ab imperialibus codicillis præstitis a patria potestate liberat. Quis enim patiatur patrem quidem posse per emaneipationis modum suæ potestatis nexibus filium relaxare, imperatoriam autem celsitudinem non valere eum, quem sibi patrem elegit, ab aliena eximere potestate?

4. A son, though he becomes a soldier, a senator, or a consul, still remains in the power of his father, from which neither military service nor consular dignity can free him. But by our constitution the supreme dignity of the patriciate frees the son from the power of his father immediately on the grant of the imperial patent. For how can it be tolerated that a father should be able to emancipate his son from the tie of his power, and that the majesty of the emperor should not be able to release from the power of another, one whom he had chosen to be a father of the state?

D. i. 7. 3; C. xii. 3. 5.

Under the old Roman law no child was released from a father's power, by having any dignity or office, except that of a flamen dialis, or a vestal virgin. Persons holding either of these offices, without undergoing any capitis deminutio, or ceasing to be members of their father's family, became sui juris. Justinian conferred the privilege on those enjoying the dignity of the patriciate, and at a later period of his legislation enlarged the number of dignities to which this incident was attached; and the child was freed from the power of his father by being made a bishop, a consul, quæstor of the palace, prætorian præfect, or master of infantry or cavalry; and, in general, all those whose dignity exempted them from the burdens of the curia were freed from the power of their father.

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