XIX[19arg] The meaning of adoptatio and also of adrogatio, and how they differ; and the formula used by the official who, when children are adopted, brings the business before the people.
WHEN outsiders are taken into another's family and given the relationship of children, it is done either through a praetor or through the people. If done by a praetor, the process is called adoptatio; if through the people, arrogatio. Now, we have adoptatio, when those who are adopted are surrendered in court through a thrice repeated sale 1 by the father under whose control they are, and are claimed by the one who adopts them in the presence of the official before whom the legal action takes place. The process is called adrogatio, when persons who are their own masters deliver themselves into the control of another, and are themselves responsible for the act. But arrogations are not made without due consideration and investigation; for the so-called comitia curiata 2 are summoned under the authority of the pontiffs, and it is inquired whether the age of the one who wishes to adopt is not rather suited to begetting children of his own; precaution is taken that the property of the one who is being adopted is not being sought under false pretences; and an oath is administered which is said [p. 439] to have been formulated for use in that ceremony by Quintus Mucius, 3 when he was pontifex maxinus. But no one may be adopted by adrogatio who is not yet ready to assume the gown of manhood. The name adrogatio is due to the fact that this kind of transfer to another's family is accomplished through a rogatio or “request,” put to the people. The language of this request is as follows: “Express your desire and ordain that Lucius Valerius be the son of Lucius Titius as justly and lawfully as if he had been born of that father and the mother of his family, and that Titius have that power of life and death over Valerius which a father has over a son. This, just as I have stated it, I thus ask of you, fellow Romans.” Neither a ward nor a woman who is not under the control of her father may be adopted by adrogatio; since women have no part in the comitia, and it is not right that guardians should have so much authority and power over their wards as to be able to subject to the control of another a free person who has been committed to their protection. Freedmen, however, may legally be adopted in that way by freeborn citizens, according to Masurius Sabinus. 4 But he adds that it is not allowed, and he thinks it never ought to be allowed, that men of the condition of freedmen should by process of adoption usurp the privileges of the freeborn. “Furthermore,” says he, “if that ancient law be maintained, even a slave may be surrendered by his master for adoption through the agency of a praetor.” And he declares that several authorities 5 on ancient law have written that this can be done. I have observed in a speech of Publius Scipio On [p. 441] Morals, which he made to the people in his censorship, that among the things that he criticized, on the ground that they were done contrary to the usage of our forefathers, he also found fault with this, that an adopted son was of profit to his adoptive father in gaining the rewards for paternity. 6 The passage in that speech is as follows: 7 “A father votes in one tribe, the son in another, 8 an adopted son is of as much advantage as if one had a son of his own; orders are given to take the census of absentees, and hence it is not necessary for anyone to appear in person at the census.”