(Inst. 1, 10, 13). (Dig. 50, 2 de decurionibus.)
It is to be noticed that the jus Latii could, according to Gaius, § 95, be constitutionally granted in three ways, either by the people itself (in Comitia), or by the senate (representing the people), or by the Emperor (in whom the power of the people was to a great extent vested).
DE ADOPTIONIBVS.
§ 97. Not only natural children are subject, as mentioned, to paternal power, but also adoptive children.
§ 98. Adoption is of two forms, adoption by authority of the people and adoption by the executive command of a magistrate, as of the praetor.
§ 99. Authority of the people is required for the adoption of an independent person, and this form is called adrogation, because the adopter is interrogated whether he wishes to have the person adopted for his lawful son, the person adopted is interrogated whether he thereto consents, and the people (in comitia) is interrogated whether such is its command. The executive command of a magistrate is the proceeding for the adoption of a person subject to the power of an ascendent, whether a descendent in the first degree, as a son or daughter, or in a remoter degree, as a grandson or granddaughter, great-grandson or great-granddaughter.
§ 100. Adoption by vote of the people (in comitia) can only be solemnized at Rome, the other process is usually effected in the provinces in the court of the president.
§ 101. Adoption by vote of the people is inapplicable to females, as has finally been ruled; but females may be adopted by the other mode of adoption, at Rome in the court of the praetor, in provinces of the people it is usually effected in the court of the proconsul, in provinces of the emperor in the court of the legate.
§ 102. The legislative adoption of a child below the age of puberty by vote of the people was at one time prohibited, at another permitted; at the present day, by the epistle of the Emperor Antoninus addressed to the pontifices, on evidence of a just cause of adoption, it is permitted, subject to certain conditions. In the court of the praetor at Rome, in the court of the proconsul in a province of the people, and in the court of the legate in a province of the emperor, a person of any age may be adopted.
§ 103. Both forms of adoption agree in this point, that persons incapable of procreation by natural impotence are permitted to adopt.
§ 104. Women cannot adopt by either form of adoption, for even their natural children are not subject to their power.
§ 105. He who has adopted a person either by the vote of the people or by the authority of the praetor or of the president of a province, can transfer his adoptive son to another adoptive father.
§ 106. Whether a younger person can adopt an older is a disputed point in both forms of adoption.
§ 107. It is peculiar to adoption by the vote of the people that children in the power of the person adrogated, as well as their father, fall under the power of the adrogator, assuming the position of grandchildren.
Adrogation, or the adoption of an independent person (paterfamilias), reducing him to a dependent status (filiusfamilias), was a legislative act of the Comitia Curiata; but though, as representing the people, this assembly was legally omnipotent, it was unconstitutional to deprive a person either of the citizenship or of domestic independence without his own consent. We learn from Cicero the formula by which this assent was ascertained. De Domo, 29. ‘As it is an immemorial rule of law that no citizen of Rome shall be deprived of the independent position of paterfamilias or of citizenship against his will, as you have had occasion of learning by your own experience, for I suppose that, illegal as your adrogation was in all points, you at least were asked whether you consented to become subject to the adrogator’s power of life and death as if you were his son;—if you had opposed or been silent, and the thirty Curiae had nevertheless passed the law, tell me, would their enactment have had any binding force?’ The form in which the law was proposed to the legislative assembly is given by Gellius, 5, 19. ‘Adrogation is the subjection of an independent person with his own consent to the power of a superior, and is not transacted in the dark or without investigation. The Comitia Curiata, at which the College of Pontiffs is present, are convened, and examine whether the age of the adrogator does not rather qualify him for the natural procreation of children, and whether the estate of the adrogatus is not the object of fraudulent cupidity, and an oath, said to be framed by Q. Mucius, the high pontiff, has to be taken by the adrogator. . . . Adrogation, the name given to this transmit into a strange family, is derived from the interrogation of the legislative body, which is in the following form: ‘May it please you to will and command that L. Valerius shall be as completely by law and statute the son of L. Titius as if he were born of L. Titius and his wife, and that L. Titius shall have power of life and death over L. Valerius as a father has over his son. Do you will and command as I have said, Quirites?’ Those who voted in affirmation of the measure proposed said (at least in other similar assemblies): Uti rogas; those who voted against it said: Antiquo. Women were originally incapable of being adrogated, § 101, because they were incapable of appearing in the Comitia Curiata, Quoniam cum feminis nulla comitiorum communio est, Gellius, ibid.; but this incapacity vanished as soon as the lex Curiata, as form of adrogation, was superseded by imperial rescript (principale rescriptum), Gaius in Dig. 1, 7, 21. Women, being incapable of exercising parental power, could not, properly speaking, adrogate, § 104; but they were permitted, under Diocletian a. d. 291, by quasi adrogation to establish the same legal relation as existed between a mother and her natural children, Cod. 8, 48, 5; Inst. 1, 11, 10. An adrogator was usually required to be sixty years old, Dig. 1, 7, 15, 2, and to be eighteen years (plena pubertate) older than adrogatus, Inst. 1, 11, 4. Originally a youth must have attained the age of puberty before he could be adrogated, § 102, and Gellius, ibid.: Sed adrogari non potest nisi jam vesticeps . . . quoniam tutoribus in pupillos tantam esse auctoritatem potestatemque fas non est, ut caput liberum fidei suae commissum alienae ditioni subiciant. ‘A youth cannot be adrogated before he has assumed the toga virilis, because a guardian has no authority or power to subject an independent person, with whose charge he is entrusted, to the domination of a stranger.’ The purple-edged praetexta was generally laid aside by boys along with the bulla aurea which they wore round their neck, on the first Liberalia, the 17th March, Ovid, Fasti, 3, 771, after the completion of their fourteenth year. Females did not lay aside the praetexta till their marriage. Antoninus Pius permitted the adrogation of youths below the age of puberty (impubes, investis) under certain conditions; e. g. the adrogator entered into a stipulation, originally with a public slave, in later times with a public notary (tabularius), in the event of the death of adrogatus before the age of puberty, to restore his estate to his natural heirs, and, in the event of emancipation, to adrogatus himself: and adrogatus became entitled to a fourth part of the estate of adrogator (called quarta Antonini), of which he could not be deprived by disinherison or by unmerited emancipation, § 102; cf. Inst. 1, 11, 3. In the time of Justinian the adrogator only acquired a usufruct for life in the property, subject to which the adrogatus was owner of it; that is to say, the property of adrogatus was transformed by adrogation into peculium adventicium. Cf. 3, 84, comm.
The form of simple adoption is explained below, § 134, under the head of dissolution of patria potestas, for as patria potestas is vested by adoption in the adoptive father, so it is divested from the natural father.
The effect of adoption was much reduced by a constitution of Justinian. If the adoption was by an ascendent, maternal or paternal, it retained its old character: but if it was by a stranger it neither created nor extinguished patria potestas; it did not transfer the adopted son from his old family into a new family, and therefore it neither destroyed nor created any tie of agnation: its only effect was to give to the adopted son, in the event of intestacy, a claim against the estate of the intestate adoptive father; Cod. 8, 47, 10; Inst. 1, 11, 2 and 3, 1, 14.
DE MANV.
§ 108. Let us next proceed to consider what persons are subject to the hand, which also relates to law quite peculiar to Roman citizens.
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