Case 148. Adrogation

D. 1.7.15 pr., 2-3 (Ulpianus libro vicensimo sexto ad Sabinum)

(pr.) Si pater familias adoptatus sit, omnia quae eius fuerunt et adquiri possunt tac­ito iure ad eum transeunt qui adoptavit: hoc amplius liberi eius qui in potestate sunt eum sequuntur: sed et hi, qui postliminio redeunt, vel qui in utero fuerunt cum adrogaretur, simili modo in potestatem adrogatoris rediguntur....

(Ulpian in the twenty-sixth book on Sabinus)

(pr.) If a paterfamilias is adopted (through adrogation), all property that belongs to him or that accrues to him passes by tacit operation of law into the ownership of the person adopting him. Further, the children who were in his power follow him; and those who return from enemy captivity or who were in utero at the time he was adrogated are likewise transferred into the power of the adrogator..............................................................................................................................

(2) In cases of adrogation, official enquiry turns on whether the adrogator happens to be under sixty years old, because (in that case) he should rather be attempting to procreate (and not to adopt), unless perhaps disease or ill-health is a factor, or there is some other appropriate reason for adrogating, for example, if he wants to adopt someone related to him.

1.      Adopting Romans. The Roman practice of adoption was radically different from our own. We tend to adopt orphans and prefer babies at that; the Ro­mans usually adopted adults and actually put legal roadblocks in the way of adopting orphans, as you can see with the rules for adrogation. What do you think explains these differences?

2.      style='font-weight:bold'>Adrogating a Pater Familias. Adoption of a pater familias, that is, a male of sui iuris status, was regarded with special sensitivity since it involved the ex­tinction of an independent household (see Gaius, Inst. 1.98-107). Both par­ties had to give explicit permission. Since in the process one family's cult practices (its sacra) were extinguished, the priestly board of pontiffs had to be consulted. Then adrogation had to be ratified through an archaic assem­bly known as the comitia curiata or, later, as this became inconvenient, by means of an imperial rescript: a high level of governmental involvement. What are the implications of the fact that the adrogator receives not only the property but all the persons in the adrogated persons power? How would, for example, their rights of inheritance from their erstwhile paterfamilias be guaranteed?

3.      Age Limit. Why insist that the adrogator be over sixty or, if younger, at least incapable of begetting children? Is there a connection between this rule and that only one person be adrogated? Do these requirements give a clue as to the motive that a Roman usually had in deciding to adrogate: affection be­tween the parties or continuation of the family line? Gaius (Inst. 1.102) tells us that adrogation of a minor was not permitted until the reign of Antoninus Pius (A.D. 138-161), and then only upon a showing of good cause. Why were the Romans so reluctant to permit adrogation of sui iuris juveniles?

4.      Excepting Relatives. Why make an exception for a relative? Why not allow adrogation of someone else's freedman?

5.      Seniority. What is the rationale for requiring that the adrogator be older than the person adrogated?