Adoption: Institutes of Justinian

Adoption

Not only are our natural children, as we have said, in our power, but those also whom we adopt.

1. Adoption takes place in two ways, either by imperial rescript, or by the authority of the magistrate. The imperial rescript gives power to adopt persons of either sex who are sui juris; this species of adoption is called arrogatio. By the authority of the magistrate we adopt persons in the power of an ascendant, whether in the first degree, as sons and daughters, or in an inferior degree, as grandchildren or great-grandchildren.

2. But now, by our constitutio, when a filiusfamilias is given in adoption by his natural father to a stranger, the power of the natural father is not dissolved; no right passes to the adoptive father, nor is the adopted son in his power, although we allow such son the right of succession to his adoptive father dying intestate. But if a natural father should give his son in adoption, not to a stranger, but to the son’s maternal grandfather; or, supposing the natural father has been emancipated, if he gives the son in adoption to the son’s paternal grandfather, or to the son’s maternal great-grandfather, in this case, as the rights of nature and adoption concur in the same person, the power of the adoptive father, knit by natural ties and strengthened by the legal bond of adoption, is preserved undiminished, so that the adopted son is not only in the family, but in the power of his adoptive father.

3. When any one, under the age of puberty, is arrogated by the imperial rescript, the arrogatio is only allowed when inquiry has been made into the circumstances of the case. It is asked what is the motive leading to the arrogatio, and whether the arrogatio is honorable and expedient for the pupil. And the arrogatio is always made under certain conditions: the arrogator is obliged to give security before a public person, that is, before a notary, that if the pupil should die within the age of puberty, he will restore all the property to those who would have succeeded him if no adoption had been made. Nor, again, can the arrogator emancipate the person arrogated, unless, on examination into the case, it appears that the latter is worthy of emancipation; and, even then, the arrogator must restore the property belonging to the person he emancipates. Also, even if the arrogator, on his death-bed, has disinherited his arrogated son, or, during his life, has emancipated him without just cause, he is obliged to leave him the fourth part of all his goods, besides what the son brought to him at the time of arrogatio, or acquired for him afterwards.

4. A younger person cannot adopt an older; for adoption imitates nature; and it seems unnatural that a son should be older than his father. Anyone, therefore, who wishes either to adopt or arrogate a son should be the elder by the term of complete puberty, that is, by eighteen years.

5. A person may adopt another as grandson or granddaughter, great-grandson or great-granddaughter, or any other descendant, although he has no son.

6. A man may adopt the son of another as his grandson, and the grandson of another as his son.

7. If a man adopts a grandson to be the son of a man already adopted, or of a natural son in his power, the consent of this son ought first to be obtained, that he may not have a suus heres given him against his will. But, on the contrary, if a grandfather gives his grandson by a son in adoption, the consent of the son is not necessary.

8. He who is either adopted or arrogated is assimilated, in many points, to a son born in lawful matrimony; and therefore, if any one adopts a person who is not a stranger by imperial rescript, or before the praetor, or the praeses of a province, he can afterwards give in adoption to another the person whom he has adopted.

9. It is a rule common to both kinds of adoption, that persons, although incapable of procreating, as, for instance, impotent persons, may, but those who are castrated cannot adopt.

10. Women, also, cannot adopt; for they have not even their own children in their power; but, by the indulgence of the emperor, as a comfort for the loss of their own children, they are allowed to adopt.

11. Adoption by the rescript of the emperor has this peculiarity. If a person, having children under his power, should give himself in arrogatio, not only does he submit himself to the power of the arrogator, but his children are also in the arrogator’s power, being considered his grandchildren. It was for this reason that Augustus did not adopt Tiberius until Tiberius had adopted Germanicus; so that directly the adoption was made, Germanicus became the grandson of Augustus.

12. Cato, as we learn from the ancients, has with good reason written that slaves, when adopted by their masters, are thereby made free. In accordance with which opinion, we have decided by one of our constitutiones that a slave to whom his master by a solemn deed gives the title of son is thereby made free, although he does not require thereby the rights of a son.