ADOP´TIO
ADOP´TIO adoption. The idea of the conservation of
families lay at the root of Greek and Roman, as of Hindoo, adoption; and
Isaeus (
Menecl. § 29) speaks of it as in use both
among Greeks and barbarians.
1. Greek.
Adoption was called by the Athenians
εἰσποίησις, or sometimes simply
ποίησις or
θέσις.. The
Greek writers use
θέσις also as
equivalent to the Roman
adoptio, and
θετοί as equivalent to
adoptivi. (
App. BC
3.13,
14.) The adoptive father
was said
ποιεῖσθαι, εἰσποιεῖσθαι, or
sometimes
ποιεῖν: and the father or
mother (for a mother after the death of her husband could consent to her
son being adopted) was said
ἐκποιεῖν;
the son was said
ἐκποιεῖσθαι, with
reference to the family which he left; and
εἰσποιεῖσθαι, with reference to the family into which
he was received. The son, when adopted, was called
ποιητός, εἰσποιητός, or
θετός: in opposition to the legitimate son born of the body
of the father, who was called
γνήσιος.
A man might adopt a son either in his life-time or by his testament,
provided he had no male offspring and was of sound mind. He might also,
by testament, name a person to take his property, in case his son or
sons should die under age. (Lex ap. Demosth. ii.
Steph.
p. 1133.14.) If he had male offspring, he could not dispose of his
property. This rule of law was closely connected with the rule as to
adoption; for if he could have adopted a son when he had male children,
such son would have shared his property with the rest of his male
children, and to that extent the father would have exercised a power of
disposition which the law denied him.
Only Athenian citizens could be adopted but females could be adopted (by
testament at least) as well as males. (Isaeus,
Hagn.
§ § 8, 41.) The adopted child was transferred from his
own family and demus into those of the adoptive father; he inherited his
property and maintained the sacra of his adoptive father. It was not
necessary for him to take his new father's name, but he was registered
as his son.
[p. 1.26]The adopted son might return to his
former family, but only in case he left a child to represent the family
of his adoptive father (Isaeus,
Philoctem. § 53:
ὁ γὰρ νόμος οὐκ ἐᾷ ἐπανιέναι ἐὰν
μὴ υἱὸν καταλίπῃ γνήσιον Unless he so returned, he
lost all right which he might have had on his father's side if he had
not been adopted:
οὐδεὶς γὰρ πώποτε
ἐκποιητὸς γενόμενος ἐκληρονόμησε τοῦ ὄκον ὅθεν
ἐξεποιήθη, ἐὰν μὴ ἐπανέλθῃ κατὰ τὸν νόμον
(Isae.
Astyph. § 4). But he retained all rights
which he might have on his mother's side, for the act of adoption had no
effect so far as concerned the mother of the adopted person; she still
continued his mother after the act of adoption (Isae.
Apollod. § 31).
If the adopted son were a minor, the consent of his natural parents was
required ; the contrary has been maintained, but the right of refusal
may be considered as proved by a passage in Isaeus
(
Menecl. § 26):
ἀλλ̓ οὐκ
ἂν αὐτῷ ἔδωκεν, ἄπαιδα αὑτὸν καθιστάς.
The next of kin of an Athenian citizen were entitled to his property if
he made no disposition of it by will, or made no valid adoption during
his lifetime; they were, therefore, interested in preventing fraudulent
adoptions. The whole community were also interested in preventing the
introduction into their body of a person who was not an Athenian
citizen. To protect the rights of the next of kin against unjust claims
by persons who alleged themselves to be adopted sons, it was required
that the father should enter his son, whether born of his body or
adopted, in the register of his phratria (
φρατρικὸν γραμματεῖον) at a certain time, the Thargelia
(Isae.
Apollod. § § 3, 5), with the
privity of his kinsmen and phratores (
γεννῆται,
φράτορες). Subsequently to this, it was necessary to
enter him in the register of the adoptive father's demus (
ληξιαρχικὸν γραμματεῖον), without which
registration it appears that he did not possess the full rights of
citizenship as a member of his new demus.if the adoption was by
testament, registration was also required, which we may presume that the
person himself might procure to be done, if he was of age, or, if not,
his guardian or next friend. If a dispute arose as to the property of
the deceased (
κλήρου διαδικασία）
between the son adopted by testament and the next of kin, there could
properly be no registration of the adopted son until the testament was
established. If a man died childless and intestate, his next of kin
according to the Athenian rules of succession took his property
(
ἀδχιστεία κατὰ δένος: Dem.
Leochar. § § 2, 6, 7, &c.).
Though registration might in this case also be required, there was no
adoption properly so called, as some modern writers suppose; for the
next of kin necessarily belonged to the family of the intestate.
The rules as to adoption among the Athenians may be mainly deduced from
the orations of Isaeus, and those of Demosthenes against Macartatus and
Leochares. These last two speeches are instructive examples of opposite
cases: in the former, the plaintiff claims as an adopted son; in the
latter, the next of kin resist a similar claim.
[
G.L] [
W.W]
2. Roman.
1.
This was the subjecting of a Roman citizen to the fatherly power of
another otherwise than through marriage. The person adopting became
the lawful (
justus) father of one who
was not his natural child, but who thereupon became his lawful son
or daughter, and a member of his family. Accordingly the adopted
child received the name of the adopter, adding to it, as an
additional cognomen, either a derivative from the name, or the name
itself, of his former family. Thus the son of L. Aemilius Paullus,
when adopted by P. Cornelius Scipio, became P. Cornelius Scipio
Aemilianus; and Q. Servilius Caepio Brutus was the name of M. Brutus
after his adoption by Caepio. If the person who thus entered into a
new family was dependent (
filius
familias), the matter was of less legal importance, and
required less solemnity than when a head of a family (
pater familias), i. e. a man not under the
power of another (
sui juris), and
presumably having property and perhaps children, was to become
subject to another's power. Of the latter, the best-known case was
that of P. Clodius, who, though a senator, got himself adopted by P.
Fonteius, a plebeian of twenty years of age, in order to qualify
himself to be elected a tribune of the Commons. He retained his old
name, perhaps, as suggested by Lange (
Röm.
Alt. i. p. 139, ed. 3), because the adoption was only a form
(
fiduciae causa, like the
co-emptions of women, Gai. 1.114, 115), and he was immediately
emancipated. Cicero's discussion of this case (
Dom.
13, 14) gives us the state of law of the period. According to him,
the college of priests (
pontifices）
used to inquire into the reason of the adoption, the suitability of
the transaction to the dignity of the two families, and the security
for the due maintenance of the sacred rites of the family which was
thus losing a representative. The adopter ought to be one who had
been married, who had no children, and could not have any, and who,
in age, might have been the natural father of the adoptee. On the
favourable report, or on the proposal of the priests, a bill
(
rogatio) authorising the adoption
had still to be passed by the
curiae.
Gellius (
6.19; comp. also
Cic. Dom. 29) gives this form:
“Velitis jubeatis uti L. Valerius L. Titio, tam jure
legeque filius siet, quam si ex eo patre matreque familias ejus
natus esset, utique ei vitae necisque in eum potestas siet uti
patri endo filio est. Haec ita uti dixi, ita vos Quirites
rogo.” From this procedure by bill the term
adrogatio was applied to the adoption of a
person
sui juris. The earliest uses
that we know is in Gaius and A. Gellius. Cicero uses
adoptio, or
adoptatio of both forms, and so do the lawyers,
frequently distinguishing them as
adoptio quae
per (or
apud)
populum fit, and
ad quae
apud praetorem fit. The difference relates to the form
and conditions of the act, and not to the legal position thereby
acquired.
2.
Adoptio per populum, or
arrogatio.--The procedure in the case of
arrogation was inquiry before the priests and a bill passed by the
curiae. But even in Cicero's time
the
curiae were not assembled, but were
represented by thirty lictors (
Cic.
Rull. 2.12, § 31). Some have
thought that the
pontifices took their
place (Vangerow, § 251), but there seems no ground either
from Gellius,
l.c., or from
Tac. Hist. 1.15,
si te privatus lege curiata apud pontifices ut moris est
adoptarem, to assign to them any other function than
they always had in this matter, though no doubt this function gained
in relative importance as the curial assembly became a mere form. At
length
[p. 1.27]a rescript of the emperor was
substituted for both, and the arrogation took place before the
magistrate (comp. Gai. 1.98 with Just.
Inst. 1.17.1).
The first mention, by some considered the first Constitution, of
this is in a law of Diocletian (Cod. 8.47, 2). The arrogator had to
appear in person (
Dig. 1,
7,
25). The
detestatio sacrorum mentioned by Gellius (
15.27 ; 6.12) is taken by Savigny
(
Verm. Schr. 1.197) to be part of the ceremony,
viz. the formal abandonment of the sacred rites of the gens on the
part of the arrogatus. (Danz,
Sacral. Schutz. p. 87,
opposes; Vehring,
Röm. Erbr. p. 124,
supports this view.)
In Gaius' time arrogation still required the authority of the people,
and consequently could take place at Rome only, and when he wrote
some of his Institutes (1.101), according to the better opinion,
applied only to males; so also Ulpian (
Fr. 25). But
later on Gaius tells us (if the quotation in the Digest [1, 7, 21;
cf.
Cod. 8.47, 8] has not been altered), by a
rescript of the emperor the arrogation was allowed. Whether a
younger could adopt by either form an elder was, in his time
(1.106), still undecided. Later it was held that the adopter must be
older than the adopted by the age of full puberty, i.e. by a period
of eighteen years (D. 1, 7, 15.3; s. 40.1). Unless, indeed, some
special reason of health or intimacy existed, an arrogator ought to
be sixty years old (s. 15.2).
The effect of arrogation was to transfer, as a whole (
per unicersitatem), the property and future
acquisitions of the person arrogated to his new father (Justinian
allowed him only the usufruct, and only on the son's death
unemancipated gave him the property in fee,
Inst.
3.10.2). All the children who were in his power fell under the same
power as himself, and became grandchildren of the adopter of their
eather (s. 15, s. 40; Gai. 1.107). Hence Tiberius was made to adopt
Germanicus before he himself was adopted
lege
curiata by Augustus (
Suet.
Tib. 15). But the change of civic person (
capitis deminutio, Gai. 1.162) brought about
by his adoption caused a loss altogether of rights attached to his
person, viz. any usufruct vested in him (repealed by Justinian,
Cod. 3.33, 16), any services which his freedman
had sworn to render him (cf. D. 38, 1, 7; 9), and some others (Gai.
3.83). At the same time all debts owed by the arrogatus on his own
account did not, in strict law, become chargeable on the arrogator,
but dropped altogether. The praetor, however, interfered, and gave
the creditors a right, if their claims were not duly satisfied, to
obtain payment by selling all the property that would have been
their debtor's if he had not been adopted. If, however, the debts
were owing by the arrogatus, in capacity of heir to some one else,
the arrogator took the burden as parcel of the inheritance (Gai.
3.84). A will made by a person adopted was broken, unless he was
emancipated before his death (Gai. 2.147; D. 29, 7, 8.3).
A person under the age of puberty (
impubes or
pupillus) could
not be arrogated until a letter of Antoninus (Pius) allowed it under
certain circumstances and conditions (
Gel.
5.19.10; Gai. 1.102). If the arrogator had a child or
children already, the propriety of the adoption was very
questionable. In any case the consent of all the guardians was
required (
Cod. 5.59, 5), and the adoption must be
shown to be for the youth's interest, due inquiry having been made
into the morals of the arrogator and into the means of both parties;
and the arrogator had to give security to a public officer (
servus publicus or
tabellarius) that, if the arrogatus died before the
age of puberty, he would restore all the property of the arrogatus
to those who would have been entitled if the adoption had not taken
place (
Just. 1.11,
3; D. 1, 7, 17; 18). On the death of the arrogator, the son,
if surviving, and even though emancipated, unless for good cause,
was entitled to the same; and in addition to one-fourth part of the
arrogator's property (D. 1, 7, 22;
Cod. 8.37, 2; D.
38, 5, 13). This fourth part is often called
Quarta divi Pii. A guardian or curator was not
allowed to adopt one who had been his ward, lest it should be done
to avoid giving account of his charge (D. 1, 7, 17). A stepfather,
being guardian, was allowed by Antoninus Pius to adopt his stepson
(s. 32), and the stepson (or any adopted
impubes?) could, on reaching puberty and showing adequate
cause, sometimes obtain emancipation (ss. 32, 33).
After the time of Claudius the adoption of a minor (s. 8) required
the consent of his curator (s. 8).
3.
Adoptio apud praetorem.--Adoption, in
the narrower sense of the term, as opposed to
arrogatio, came under. somewhat different
considerations. The natural father had to give his consent (besides
the consent, actual or tacit, of the child, s. 5); and this was a
safeguard of the adoptee's interests (Theoph.
Inst.
1.11.3). Moreover, the adoptee would, as
filius- or
filia-familias,
have no property (except perhaps
castrense
peculium, and that would not pass to the adopter: D.
49, 17, 12). Nor would his children, if any, leave the family of
their grandfather (D. 1, 7, 40, pr.). Persons of either sex and of
any age could be adopted either at Rome before the praetor, or in
the provinces before the proconsul or legate (Gai. 1.101, 102). The
procedure was the result of the person to be adopted not being
sui juris. The link with the
natural family had to be dissolved before the link with the adoptive
family could be made. The law held that not until a father had
mancipated his son three times (a daughter or grandchild only once:
Gai. 1.132) was the son deemed free from the father's control.
Accordingly, on the first mancipation, the person to whom he was
thus transferred set him free. The father's old power at once
attached. The second mancipation and manumission had the same
result. The father then mancipated him a third time. If he were
manumitted, he would be free from the control of his father, and
indeed would be
sui juris. So, instead
of manumission, the adopter claims (
vindicat) him as his son, and on no counterclaim being
asserted the magistrate assigns (
addicit) him to the adopter. This ceremony was sometimes
transacted merely between the natural and the adoptive father, who,
in that case, on receiving him from the natural father on the third
mancipation, did not manumit him, but remancipated him to his
natural father, from whom he then claimed him as his son. This was
the usual and more convenient course. But sometimes a third person
was employed, to whom the father mancipated the son. In that
[p. 1.28]case, on the third mancipation, the adoptive
father interfered and claimed him as his son (Gai. 1.134). This form
is referred to in Cicero's words “filium in adoptionem D.
Silano emancipaverat” (
Fin.
1.7.24), and in Suetonius: “Gaium et Lucium adoptavit
(Augustus) domi per assem et libram emptos a patre
Agrippa” (
Aug. 64). Justinian abolished this
antiquated form, and substituted simple declaration by deed
(
actis intervenientibus), both
parties being present before the magistrate (
Cod.
8.47, 11). A child did not lose by adoption all his rights in his
natural family. He was still a cognate, and as such entitled to
succeed in the third degree to the inheritance of an intestate
father (Gai. 3.31). If emancipated by his adoptive father, he
reverted to the position and rights of an emancipated son of his
natural father (Gai. 2.137).
A Constitution of Justinian (
Cod. 8.47, 10;
Inst. 1.11.2) greatly altered the effect of this
adoption. The adoptee no longer either lost his natural rights, or
acquired and conferred any, except a right to succeed in due place
to the inheritance of the adopter if he died intestate without
having emancipated him. If, however, the adopter was a maternal or
(if the father was emancipated) a paternal grandfather, in this
case, natural and adopted ties concurring, the old effect of
adoption remained.
4.
In all adoption the rule holds: “Adoptio non jus sanguinis sed
jus agnationis adfert” (D. 1, 7, 23), and a person
adopted became
agnate to all to whom his
adoptive father is
agnate (D. 38, 8, 1.4;
16, 2.3), and brothers and sisters by adoption were called
consanguinei as well as those by birth (D.
38, 16, 1.11; cf.
Collat. 16.6). But the adopted son
was not related either to the mother or to the emancipated children
of the adopter or to his wife, unless the wife were
in manu, in which case she would be legally
a sister to the adopter. (Cf. Gai. 3.14.) The son of an adopted
person was himself in an adoptive position (D. 1, 7, 27).
Emancipation of an adopted child broke all connexion between him and
the adoptive family (s. 13), excepting that marriage between the
adopter and his adopted daughter or granddaughter, though
emancipated, remained unlawful (Gai. 1.59). No re-adoption by the
same person, not being the natural father, was possible (D. 1, 7,
37).
A person might be adopted into the place of son, or grandson (even if
the adopter had no son), or great-grandson, &c., and the
same applies analogously to the adoption of girls. Further, the
adoption into the place of grandson might specifically connect him
with a particular son of the adopter, and thus make him brother of
that son's children, if any. But the son's consent was required. If
the son did not consent, the adoptee would not fall into the son's
power on the death of the adopter (D. 1, 7, 6, 10, 43, 44).
The adoption of another person's freedman was not allowed (D. 1, 7,
15.3), probably lest the patron's rights should be impaired. Nor
could a slave be adopted in the time of Sabinus (
Gel. 5.19.3), though in early days it was
allowed, the slave of course being mancipated and then claimed as
son, as in the adoption of a
filius
familias (cf. Schlesinger,
Zeitschr. R. G.
6.119 ff.). The adoption of illegitimate children by their father
was forbidden by Justin, A.D. 519 (
Cod. 7.27, 7).
5.
Besides feelings of affection, other causes sometimes led to
adoptions. In early times there was the desire to maintain the
family and its sacred rites (cf.
Cic.
Legg. 2.1. 9); in the time of Claudius
the desire to qualify under the provisions of the Lex Julia et Papia
Poppaea (cf.
Gel. 2.15), or escape the
penalties on childless persons. A decree of the senate declared that
no such pretended adoption (manumission having at once followed the
adoption) should have any effect (
Tac.
Ann. 15.19), and so we find adopted children were not
counted so as to excuse from public offices (D. 50, 5, 2.2). And a
trust conditional on the death of sons leaving no children was not
defeated by their leaving an adopted child (D. 35, 1, 76).
6.
Testators, at the time of Cicero, and later in several cases, coupled
the grant of part of their estate with a direction to the heir to
bear the testator's name; and this is often spoken of by historians
as an adoption. So in the case of a Crassus, spoken of by Cicero
(
Cic. Brut. 58.212); of
Atticus, adopted by will by his uncle Q. Caecilius (
Nep. Att. 5); and
especially of Octavius, adopted by Julius Caesar (
Suet. Jul. 83). In this last case a
lex curiata was obtained to confirm
it (Appian,
Civ. 3.94;
D. C.
44.35,
45.3-
5, &c.). No such adoption (though
recognised by Greek law; cf. Isae.
Dicaeog.
§ 6) is mentioned by Roman lawyers, and it obviously lacks
both the due form and the substance of fatherly power obtained over
the adopted. Some modern writers have regarded it as an appointment
of heir conditional on bearing the testator's name (cf.
Cic. Att. 7.8, § 3). Suetonius
tells of Tiberius taking an inheritance but declining the name
attached (
Tib. 6). But this conduct is not wholly
destitute of legal support (cf. D. 36, 1, 63.10); and, in any case,
acts either of Octavius or of others of the imperial family are
scarcely to be trusted as indications of general law.
Another pseudo-adoption is found in the rescript of Diocletian
(
Cod. 8.47, 5; cf. D. 5, 2, 2.3) allowing women
to adopt a son. Rights of inheritance would probably be the only
legal result.
The principal authorities are Cic.
pro
Domo; Gaius, 1.97-107, 134, 3.83, 84; Ulpian,
Fr. 8; Just.
Inst. 1.11, 3.10;
Dig. 1,
7;
Cod. 8.47 (48).
[
G.L] [
H.J.R]
