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.
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).