The Institutes of Justinian Part 2

13 Sometimes it happens that children who are not born in their father's power are subsequently brought under it. Such for instance is the case of a natural son made subject to his father's power by being inscribed a member of the curia; and so too is that of a child of a free woman with whom his father cohabited, though he could have lawfully married her, who is subjected to the power of his father by the subsequent execution of a dowry deed according to the terms of our const.i.tution: and the same boon is in effect bestowed by that enactment on children subsequently born of the same marriage.

t.i.tLE XI. OF ADOPTIONS

Not only natural children are subject, as we said, to paternal power, but also adoptive children.

1 Adoption is of two forms, being effected either by rescript of the Emperor, or by the judicial authority of a magistrate. The first is the mode in which we adopt independent persons, and this form of adoption is called adrogation: the second is the mode in which we adopt a person subject to the power of an ascendant, whether a descendant in the first degree, as a son or daughter, or in a remoter degree, as a grandson, granddaughter, great-grandson, or great-granddaughter.

2 But by the law, as now settled by our const.i.tution, when a child in power is given in adoption to a stranger by his natural father, the power of the latter is not extinguished; no right pa.s.ses to the adoptive father, nor is the person adopted in his power, though we have given a right of succession in case of the adoptive father dying intestate.

But if the person to whom the child is given in adoption by its natural father is not a stranger, but the child's own maternal grandfather, or, supposing the father to have been emanc.i.p.ated, its paternal grandfather, or its great-grandfather paternal or maternal, in this case, because the rights given by nature and those given by adoption are vested in one and the same person, the old power of the adoptive father is left unimpaired, the strength of the natural bond of blood being augmented by the civil one of adoption, so that the child is in the family and power of an adoptive father, between whom and himself there existed antecedently the relations.h.i.+p described.

3 When a child under the age of p.u.b.erty is adopted by rescript of the Emperor, the adrogation is only permitted after cause shown, the goodness of the motive and the expediency of the step for the pupil being inquired into. The adrogation is also made under certain conditions; that is to say, the adrogator has to give security to a public agent or attorney of the people, that if the pupil should die within the age of p.u.b.erty, he will return his property to the persons who would have succeeded him had no adoption taken place. The adoptive father again may not emanc.i.p.ate them unless upon inquiry they are found deserving of emanc.i.p.ation, or without restoring them their property.

Finally, if he disinherits him at death, or emanc.i.p.ates him in his lifetime without just cause, he is obliged to leave him a fourth of his own property, besides that which he brought him when adopted, or by subsequent acquisition.

4 It is settled that a man cannot adopt another person older than himself, for adoption imitates nature, and it would be unnatural for a son to be older than his father. Consequently a man who desires either to adopt or to adrogate a son ought to be older than the latter by the full term of p.u.b.erty, or eighteen years.

5 A man may adopt a person as grandson or granddaughter, or as great-grandson or great-granddaughter, and so on, without having a son at all himself; 6 and similarly he may adopt another man's son as grandson, or another man's grandson as son.

7 If he wishes to adopt some one as grandson, whether as the son of an adoptive son of his own, or of a natural son who is in his power, the consent of this son ought to be obtained, lest a family heir be thrust upon him against his will: but on the other hand, if a grandfather wishes to give a grandson by a son in adoption to some one else, the son's consent is not requisite.

8 An adoptive child is in most respects in the same position, as regards the father, as a natural child born in lawful wedlock. Consequently a man can give in adoption to another a person whom he has adopted by imperial rescript, or before the praetor or governor of a province, provided that in this latter case he was not a stranger (i.e. was a natural descendant) before he adopted him himself.

9 Both forms of adoption agree in this point, that persons incapable of procreation by natural impotence are permitted to adopt, whereas castrated persons are not allowed to do so.

10 Again, women cannot adopt, for even their natural children are not subject to their power; but by the imperial clemency they are enabled to adopt, to comfort them for the loss of children who have been taken from them.

11 It is peculiar to adoption by imperial rescript, that children in the power of the person adrogated, as well as their father, fall under the power of the adrogator, a.s.suming the position of grandchildren. Thus Augustus did not adopt Tiberius until Tiberius had adopted Germanicus, in order that the latter might become his own grandson directly the second adoption was made.

12 The old writers record a judicious opinion contained in the writings of Cato, that the adoption of a slave by his master is equivalent to manumission. In accordance with this we have in our wisdom ruled by a const.i.tution that a slave to whom his master gives the t.i.tle of son by the solemn form of a record is thereby made free, although this is not sufficient to confer on him the rights of a son.

t.i.tLE XII. OF THE MODES IN WHICH PATERNAL POWER IS EXTINGUISHED

Let us now examine the modes in which persons dependent on a superior become independent. How slaves are freed from the power of their masters can be gathered from what has already been said respecting their manumission. Children under paternal power become independent at the parent's death, subject, however, to the following distinction.

The death of a father always releases his sons and daughters from dependence; the death of a grandfather releases his grandchildren from dependence only provided that it does not subject them to the power of their father. Thus, if at the death of the grandfather the father is alive and in his power, the grandchildren, after the grandfather's death, are in the power of the father; but if at the time of the grandfather's death the father is dead, or not subject to the grandfather, the grandchildren will not fall under his power, but become independent.

1 As deportation to an island for some penal offence entails loss of citizens.h.i.+p, such removal of a man from the list of Roman citizens has, like his death, the effect of liberating his children from his power; and conversely, the deportation of a person subject to paternal power terminates the power of the parent. In either case, however, if the condemned person is pardoned by the grace of the Emperor, he recovers all his former rights.

2 Relegation to an island does not extinguish paternal power, whether it is the parent or the child who is relegated.

3 Again, a father's power is extinguished by his becoming a 'slave of punishment,' for instance, by being condemned to the mines or exposed to wild beasts.

4 A person in paternal power does not become independent by entering the army or becoming a senator, for military service or consular dignity does not set a son free from the power of his father. But by our const.i.tution the supreme dignity of the patriciate frees a son from power immediately on the receipt of the imperial patent; for who would allow anything so unreasonable as that, while a father is able by emanc.i.p.ation to release his son from the tie of his power, the imperial majesty should be unable to release from dependence on another the man whom it has selected as a father of the State? 5 Again, capture of the father by the enemy makes him a slave of the latter; but the status of his children is suspended by his right of subsequent restoration by postliminium; for on escape from captivity a man recovers all his former rights, and among them the right of paternal power over his children, the law of postliminium resting on a fiction that the captive has never been absent from the state. But if he dies in captivity the son is reckoned to have been independent from the moment of his father's capture. So too, if a son or a grandson is captured by the enemy, the power of his ascendant is provisionally suspended, though he may again be subjected to it by postliminium. This term is derived from 'limen'

and 'post,' which explains why we say that the person who has been captured by the enemy and has come back into our territories has returned by postliminium: for just as the threshold forms the boundary of a house, so the ancients represented the boundaries of the empire as a threshold; and this is also the origin of the term 'limes, signifying a kind of end and limit. Thus postliminium means that the captive returns by the same threshold at which he was lost. A captive who is recovered after a victory over the enemy is deemed to have returned by postliminium.

6 Emanc.i.p.ation also liberates children from the power of the parent.

Formerly it was effected either by the observance of an old form prescribed by statute by which the son was fict.i.tiously sold and then manumitted, or by imperial rescript. Our forethought, however, has amended this by a const.i.tution, which has abolished the old fict.i.tious form, and enabled parents to go directly to a competent judge or magistrate, and in his presence release their sons or daughters, grandsons or granddaughters, and so on, from their power. After this, the father has by the praetor's edict the same rights over the property of the emanc.i.p.ated child as a patron has over the property of his freedman: and if at the time of emanc.i.p.ation the child, whether son or daughter, or in some remoter degree of relations.h.i.+p, is beneath the age of p.u.b.erty, the father becomes by the emanc.i.p.ation his or her guardian.

7 It is to be noted, however, that a grandfather who has both a son, and by that son a grandson or granddaughter, in his power, may either release the son from his power and retain the grandson or granddaughter, or emanc.i.p.ate both together; and a great-grandfather has the same lat.i.tude of choice.

8 Again, if a father gives a son whom he has in his power in adoption to the son's natural grandfather or great-grandfather, in accordance with our const.i.tution on this subject, that is to say, by declaring his intention, before a judge with jurisdiction in the matter, in the official records, and in the presence and with the consent of the person adopted, the natural father's power is thereby extinguished, and pa.s.ses to the adoptive father, adoption by whom under these circ.u.mstances retains, as we said, all its old legal consequences.

9 It is to be noted, that if your daughterinlaw conceives by your son, and you emanc.i.p.ate or give the latter in adoption during her pregnancy, the child when born will be in your power; but if the child is conceived after its father's emanc.i.p.ation or adoption, it is in the power of its natural father or its adoptive grandfather, as the case may be.

10 Children, whether natural or adoptive, are only very rarely able to compel their parent to release them from his power.

t.i.tLE XIII. OF GUARDIANs.h.i.+PS

Let us now pa.s.s on to another cla.s.sification of persons. Persons not subject to power may still be subject either to guardians or to curators, or may be exempt from both forms of control. We will first examine what persons are subject to guardians and curators, and thus we shall know who are exempt from both kinds of control. And first of persons subject to guardians.h.i.+p or tutelage.

1 Guardians.h.i.+p, as defined by Servius, is authority and control over a free person, given and allowed by the civil law, in order to protect one too young to defend himself:

2 and guardians are those persons who possess this authority and control, their name being derived from their very functions; for they are called guardians as being protectors and defenders, just as those entrusted with the care of sacred buildings are called 'aeditui.'

3 The law allows a parent to appoint guardians in his will for those children in his power who have not attained the age of p.u.b.erty, without distinction between sons and daughters; but a grandson or granddaughter can receive a testamentary guardian only provided that the death of the testator does not bring them under the power of their own father.

Thus, if your son is in your power at the time of your death, your grandchildren by him cannot have a guardian given them by your will, although they are in your power, because your death leaves them in the power of their father.

4 And as in many other matters afterborn children are treated on the footing of children born before the execution of the will, so it is ruled that afterborn children, as well as children born before the will was made, may have guardians therein appointed to them, provided that if born in the testator's lifetime they would be family heirs and in his power.

5 If a testamentary guardian be given by a father to his emanc.i.p.ated son, he must be approved by the governor in all cases, though inquiry into the case is unnecessary.

t.i.tLE XIV. WHO CAN BE APPOINTED GUARDIANS BY WILL

1 Persons who are in the power of others may be appointed testamentary guardians no less than those who are independent; and a man can also validly appoint one of his own slaves as testamentary guardian, giving him at the same time his liberty; and even in the absence of express manumission his freedom is to be presumed to have been tacitly conferred on him, whereby his appointment becomes a valid act, although of course it is otherwise if the testator appointed him guardian in the erroneous belief that he was free. The appointment of another man's slave as guardian, without any addition or qualification, is void, though valid if the words 'when he shall be free' are added: but this latter form is ineffectual if the slave is the testator's own, the appointment being void from the beginning.

2 If a lunatic or minor is appointed testamentary guardian, he cannot act until, if a lunatic, he recovers his faculties, and, if a minor, he attains the age of twentyfive years.

3 There is no doubt that a guardian may be appointed for and from a certain time, or conditionally, or before the inst.i.tution of the heir.

4 A guardian cannot, however, be appointed for a particular matter or business, because his duties relate to the person, and not merely to a particular business or matter.

5 If a man appoints a guardian to his sons or daughters, he is held to have intended them also for such as may be afterborn, for the latter are included in the terms son and daughter. In the case of grandsons, a question may arise whether they are implicitly included in an appointment of guardians to sons; to which we reply, that they are included in an appointment of guardians if the term used is 'children,'

but not if it is 'sons': for the words son and grandson have quite different meanings. Of course an appointment to afterborn children includes all children, and not sons only.

t.i.tLE XV. OF THE STATUTORY GUARDIANs.h.i.+P OF AGNATES