BOOK I. Adoptio definition. tion. CHAPTER VIII. Adoption. ADOPTION was the third method of acquiring the patria potestas; and appears to have originated in the anxious desire always exhibited by the Romans to preserve the gens and the sacra privata from extinction. Adoptio est actio solennis qua in locum filii vel nepotis adsciscitur is qui natura talis non est1. Adoption was of two kinds. First, Arrogation, which concerned those only who were sui juris; and secondly, Adoption, which referred to those who were in the power of their parents. We will first describe the ceremonies attending each of Arroga- these, and then point out the legal effects. Arrogation, so called from the adrogatio ad populum, took place before the Comitia, like the early wills of the Romans, and probably for the same reason, viz. that it was a transfer of the legal inheritance from the direct line; it also involved the capitis diminutio of the party adopted, and therefore by the Twelve Tables must needs be done by a lex curiata2. How effected. The assistance and authority of the Pontifices was requisite in this ceremony. It was their duty to ascertain the reciprocal assent of the parties, and that none of those legal impediments existed which we will presently describe. No objection being alleged the solennis rogatio took place in this form Velitis jubeatis Quirites, ut L. Valerius L. Titio tam jure legeque filius sibi siet, quam si 1 Hein. El. 175. 2 Hein. Ant. I. 11. 6. and Gai. I. 94-107. VIII. ex eo patre matreque familias ejus natus esset, &c. CHAP. ita vos Quirites rogo1. We may presume that such a note passed as a matter of course, for it would seldom happen that any one was interested except the parties concerned. The person adopted in this case passed, together with his children, if he had any, entirely into the family of the adoptor, to whom he became filius familias. He underwent the Capitis diminutio minima, and lost the agnate rights of his own family. As adoption did not confer the jus sanguinis, he therefore did not become cognatus to the cognati of the adoptor. All his property, rights and liabilities vested in the adoptor, and he so remained till the death of the latter, who might emancipate him if he chose, but in that case must place him in the same position as he found him. Arrogation could only take place at Rome, because there only the Comitia could be held; and none could give himself in arrogation who was the last of his family, for it was not allowed to continue one family by the extinction of another3. minus Adoptio, as distinguished from Arrogatio, concerned those only who were in patria potestate, and it was either plena, or minus plena. When Adoptio a father gave his child in adoption to the maternal plena and grandfather of such child; or when a father who plena. had been previously emancipated gave his child in adoption to his own father; in short, when a person in patria potestate was adopted by either of his grandfathers, this was plena adoptio, because the patria potestas passed from the father to the grandfather. If the child were given in adoption to a stranger it was minus plena, because the child remained in the power and domicilium of the father; and the only result was that if the adoptor died intestate the adopted party succeeded as his heir. This kind of adoption was How effected three ways: 1. Per æs et libram. 2. Per effected. 2 D. 1. 7. 23. 3 Cicero pro Domo. 1 Hein. Ant. I. II. 10. 1. Per æs et libram. BOOK testamentum. 3. Per Prætorem. In the first I. case the ceremony was in all respects the same as in the emancipation of a son'. The father sold his son three times to the adoptor, in the presence of five witnesses, the Libripens and Antestatus, and the adoptor emancipated him twice, consequently after the third sale he became and remained the property of the adoptor2. Per testamentum. Per Prætorem. Adoptio imitatur naturam. In adoption by testament it was nothing more than an injunction imposed by the testator on the heir named in the will to assume his name as well as his property, but as it did not confer the full rights of adoption it was generally repeated before the Comitia or per æs et libram3. The third form was apud Prætorem, by the cessio in jure. In the presence of the Prætor or Præses provinciæ the adoptor claimed the child, and the father who was present, not opposing the Justinian's claim, it was allowed. Justinian reduced the whole alteration. of these to a simple declaration before a magistrate. It was a maxim that adoptio imitatur naturam, from which no deviation was permitted. They only could adopt who were in a situation to be parents. A spado might adopt because his incapacity to procreate was considered curable, but not a Castratus, nor an Impubes, nor a woman, because she could have no children in her power. No one could adopt another older than himself, but the adoptor must be 18 years older than an adopted son, and 36 years older than an adopted grandson, because a son of full puberty was supposed to have begotten him. Men under the age of 60 years were not allowed to adopt, because before that time it was considered they might have issue of their own bodies 10. Persons who had children might adopt, but this was not readily Impedi ments. granted, as it must be to the manifest injury of CHAP. the children, nor was it any great advantage to VIII. the adopted party. If a man wished to adopt a grandson who had a son he must obtain the consent of the latter1. sequence of A person arrogated became a part of the arro- Legal congator's family as much as if he had been begotten Adoption. by him; all the property of the person arrogated immediately vested in the arrogator; and should the latter die intestate, with no children to interfere with the arrogatee he received back his property, and succeeded to the entire effects of the arrogator. In the case of adoptio minus plena the legal effect was that the adopted party became suus heres to the adoptor, and if he died intestate with no natural children to share with the adopted child the latter succeeded to the whole of his estate. It has been seen that in arrogation the consent of the arrogated party was necessary; strictly speaking, therefore, an impubes or pupillus could not be arrogated, but this was allowed by imperial rescript, provided it was done with the consent of the infant's relatives, or the authority of his tutor. The arrogator was obliged to give security that if the infant died under the age of puberty he would return all his property to his relatives; that he would not emancipate him without just cause; and if he did so that he would restore all his effects, and leave him a fourth part of his own property in his will. Justinian made further regulations on this subjects. If a father arrogated his natural son he was thereby reduced in patriam potestatem; and this was probably the mode of legitimation before the time of Constantine. 1 D. I. 7. 6. 3 C. VIII. 48. 10. 2 I. I. 11. 3. and D. I. 7. 17. 1. 2. 2 BOOK I. Tutela. CHAPTER IX. Of Guardianship. THIS chapter treats of guardians and of the law relating to them. The natural guardians of children are their parents; but as they may die before the children are able to take care of themselves, the Civil law of every country determines who shall, in such case, discharge the office of guardian, and also regulates and enforces the duties of it. The guardianship of the Roman law was divided into two parts:-1. Tutela. 2. Cura. Definition. 1. Tutela is defined as vis ac potestas in capite libero, ad tuendum eum, qui propter ætatem se defendere nequit, jure civili data ac permissa'. The office lasted till the pupil arrived at pubertas minus plena,-fourteen or twelve years of age. Three kinds 2. Cura is defined as potestas administrandi bona et rem familiarem eorum, qui rebus suis ipsi superesse nequeunt. This terminated when the minor arrived at the age of 25 years. The Tutela was of three kinds. 1. Testamen of Tutela. taria. 2. Legitima. 3. Dativa. We will con Testamen taria. sider each in order. I. Testamentaria tutela. The Twelve Tables contained this provision: Paterfamilias uti legassit super familia, pecunia tutelave suæ rei ita jus esto3. Children being res mancipi in the power of the father were obviously included in the term tutela suæ rei, and therefore it gave power to a paterfamilias to name and appoint a guardian for his children by his last will and testament. The will of the paterfamilias was the title of the testamen3 Ulp. Frag. IX. 14. 1 I. I. 13. 8. Hein. El. 266. |