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ADOPTIO.

ADOPTIO.

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13.) 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 ; hut females could be adopted (by testament at least) as well as males. (Isaeus, Tlepl rov 'Ayvtov KAVjpov .) 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 fathers name, but he was registered as his son. The adopted son might return to his former family, in case he left a child to represent the family of his adoptive father: unless he so returned, he lost all right which he might have had on his father's side if he had not been adopted ; 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.

The next of kin of an Athenian citizen were intitled 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 (typcLTpiicbv ypau/jLaTeiov) at a certain time, the Thargelia (Isaeus, Tlepl tov 'A7roAAo5c6/>. KX'fjpov, 3, 5), with the privity of his kinsmen and phratores (7ez/j/7?Tc«, (ppdropes). Subsequently to this, it was necessary to enter him in the register of the adoptive father's demus (X^iapx 7pa/tytareiW), 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. Ii a dispute arose as to the property of the deceased (icXypov 8ia$iica<ria) 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 (Dem. TIp&s Ae&>%. c. 6), took his property by the right of blood (wyXtffreia Kara, yej/os). 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 are not quite free from difficulty, and it is not easy to avoid all error in stating them. The general doctrines may be mainly deduced from the orations of Isaeus, and those of- Demosthenes against Macartatus and Leochares.

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 paren-tuni), 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 [MAN-cipatio] 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.y 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. i. 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 till 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 was the only male of his gens, for the sacra would in such case 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 perpopulum, auctoritate populi, expressions

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