The Institutes of Justinian. Anonymous
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 puberty, 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, assuming 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 constitution that a slave to whom his master gives the title 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.
TITLE 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 citizenship, 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 constitution 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 emancipation 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 Emancipation 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 fictitiously sold and then manumitted, or by imperial rescript. Our forethought, however, has amended this by a constitution, which has abolished the old fictitious 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 emancipated child as a patron has over the property of his freedman: and if at the time of emancipation the child, whether son or daughter, or in some remoter degree of relationship, is beneath the age of puberty, the father becomes by the emancipation 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 emancipate both together; and a great-grandfather has the same latitude 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 constitution 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 passes to the adoptive father, adoption by whom under these circumstances 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 emancipate 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 emancipation 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.
TITLE XIII. OF GUARDIANSHIPS