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Adoptio

The Roman section only (pp15‑16)
of an article by George Long, M.A., Fellow of Trinity College
on pp14‑16 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

ADO′PTIO, adoption.

[. . .]

p15 2. Roman. The Roman term was adoptio or adoptatio (Gell. V.19). The Roman relation of parent and child arose either from a lawful marriage or from adoption. Adoptio was the general name which comprehended the two species, adoptio and adrogatio; and as the adopted person passed from his own familia into that of the person adopting, adoptio caused a capitis diminutio, and the lowest of the three kinds. Adoption, in its specific sense, was the ceremony by which a person who was in the power of his parent (in potestate parentum), whether child or grandchild, male or female, was transferred to the power of the person adopting him. It was effected under the authority of a magistrate (magistratus), the praetor, for instance, at Rome, or a governor (praeses) in the provinces. The person to be adopted was mancipated [Mancipatio] by his natural father before the competent authority, and surrendered to the adoptive father by the legal form called in jure cessio (Gell. V.19; Suet. Aug. 64).

When a person was not in the power of his parent (sui juris), the ceremony of adoption was called adrogatio. Originally, it could only be effected at Rome, and only by a vote of the populus (populi auctoritate) in the comitia curiata (lege curiata); the reason of this being that the caput or status of a Roman citizen could not, according to the laws of the Twelve Tables, be affected except by a vote of the populus in the comitia curiata. Clodius, the enemy of Cicero, was adrogated into a plebeian family by a lex curiata, in order to qualify himself to be elected a tribunus plebis (Cic. ad Att. II.7, p. Dom.). Females could not be adopted by the adrogatio. Under the emperors it became the practice to effect the adrogatio by an imperial rescript (principis auctoritate, ex rescripto principis); but this practice had not become established in the time of Gaius, or, as it appears, of Ulpian (compare Gaius, I.98, with Gaius as cited in Dig. 1 tit. 7 s.2; and Ulpian, Frag. tit. 8). It would seem, however, from a passage in Tacitus (Hist. I.15), that Galba adopted a successor without the ceremony of the adrogatio. By a rescript of the Emperor Antoninus Pius, addressed to the pontifices, those who were under age (impuberes), or wards (pupilli), could, with certain restrictions, be adopted by the adrogatio. If a father who had children in his power consented to be adopted by another person, both himself and his children became in the power of the adoptive father. All the property of the adopted son became at once the property of the adoptive father (Gaius, II.98). A person could not legally be adopted by the adrogatio until he had made out a satisfactory case (justa, bona, causa) to the pontifices, who had the right of insisting on certain preliminary conditions. This power of the pontifices was probably founded on their right to preserve the due observance of the sacra of each gens (Cic. p. Dom. 13, &c.). It would accordingly have been a good ground of refusing their consent to an adrogatio, if the person to be adopted were the only male of his gens, for the sacra in such case would be lost. It was required that the adoptive father also had no children, and no reasonable hopes of any; and that he should be older than the person to be adopted. It is generally assumed that all adrogations were made before the curiae. Gaius, however, and Ulpian use the expressions per populum, auctoritate populi, expressions p16of very doubtful import with reference to their period. After the comitia curiata fell into disuse, it is most probable that there was no formal assembly of the curiae, and that they were represented by the thirty lictors.

A woman could not adopt a person, for even her own children were not in her power.

The rules as to adoption which the legislation of Justinian established, are contained in the Institutes (I. tit. 11).

The effect of adoption, as already stated, was to create the legal relation of father and son, just as if the adopted son were born of the blood of the adoptive father in lawful marriage. The adopted child was intitled to the name and sacra privata of the adopting parent, and it appears that the preservation of the sacra privata, which by the laws of the Twelve Tables were made perpetual, was frequently one of the reasons for a childless person adopting a son. In case of intestacy, the adopted child would be the heres of his adoptive father. He became the brother of his adoptive father's daughter, and therefore could not marry her; but he did not become the son of the adoptive father's wife, for adoption only gave to the adopted son the jura agnationis (Gaius, I.97‑107; Dig. 1 tit. 7; Cic. p. Domo).

The phrase of "adoption by testament" (Cic. Brut. 58) seems to be rather a misapplication of the term; for though a man or woman might by testament name a heres, and impose the condition of the heres taking the name of the testator or testatrix, this so‑called adoption could not produce the effects of a proper adoption. It could give to the person so said to be adopted, the name or property of the testator or testatrix, but nothing more. Niebuhr (Lectures, vol. II p100) speaks of the testamentary adoption of C. Octavius by C. Julius Caesar, as the first that he knew of; but the passage of Cicero in the Brutus and another passage (Ad Hirt. VIII.8), show that other instances had occurred before. A person on passing from one gens into another, and taking the name of his new familia, generally retained the name of his old gens also, with the addition to it of the termination anus. (Cic. ad Att. III.20, and the note of Victorius). Thus, C. Octavius, afterwards the Emperor Augustus, upon being adopted by the testament of his uncle the dictator, assumed the name of Caius Julius Caesar Octavianus; but he caused the adoption to be confirmed by the curiae. As to the testamentary adoption of C. Octavius, see Drumann, Geschichte Roms, vol. I p337, and the references there given. Livia was adopted into the Julia gens by the testament of Augustus (Tac. Ann. I.8); and it was not stated that this required any confirmation. But things were changed then. The Lex Julia et Papia Poppaea gave certain privileges to those who had children, among which privileges was a preference in being appointed to the praetorship and such offices. This led to an abuse of the practice of adoption; for childless persons adopted children in order to qualify themselves for such offices, and then emancipated their adopted children. This abuse was checked by a senatus consultum in the time of Nero. (Tac. Ann. XV.19; Cic. de Off. III.18, ad Att. VII.8; Suet. Jul. Caes. 83, Tib. 2, &c.; Heinec. Syntagma; Dig. 36 tit. 1 s.63).


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