CASE 149: The Adoption Process

Gaius, Institutiones 1.134

et duae intercedentes manumissiones proinde fiunt, ac fieri solent, cum ita eum pater de potestate dimittit, ut sui iuris efficiatur.

(Gaius in the first book of his Institutes)

Further, parents no longer have in their power those children whom they have given in adoption to others. In the case of a son given in adoption, three manci­pations and two intervening manumissions are made, just as occurs when his pater releases him from power in order to make him sui iuris. Then he is reman- cipated to his father, from whom the adopting person claims him (the son) as his own before the praetor; and when he (the father) does not counterclaim, the praetor awards the son to the claimant. Alternatively, he is not remancipated to the father; instead, the adopting person claims him from the man with whom he is during the third mancipation. Still, the more convenient course is remancipa­tion to the father.

But for all other children of either sex, one mancipation suffices, and they are either remancipated or not to their parent.

1. Mancipation and Manumission. This Case gives a brief description of the procedure for adoption when a child passes from one familia to another. The procedure exhibits many archaic formalities, but the core of it involves a se­ries of three fictional sales (called mancipations) in which the father “sells” his son to a third party. After the first two sales, the “buyer” manumits the son (rather as if he were a slave) and the son reverts to his fathers potestas. But the third sale permanently breaks the fathers potestas, according to a rule in the archaic Law of the Twelve Tables that Gaius quotes earlier (Inst. 1.132: “If the father gives a son up for sale three times, the son shall be free from the fa­ther”). So far the process has occurred entirely in private, among a limited number of individuals: the father, his son, the adopting person, possibly a third party as the intermediate “buyer,” five adult Roman citizen witnesses, and another adult Roman citizen who holds the scales for the mancipation ceremony (described by Gaius, 1.119). What is the function of these wit­nesses? Why require such a formal and complicated procedure, with its elab­orate fictions? What advantages and disadvantages does such an insistence on formality entail? You might want to consider this problem in light of the ab­sence of formal requirements for marriage (Cases 13-23).

2.      The Proceedings before the Praetor. Up to this point, the procedure for adoption and that for emancipation of a child (see section 3 below) were identical. The last stage in the adoption procedure involves a remancipation of the son (now freed from his fathers potestas) usually to the father, fol­lowed, in Rome, by a collusive trial before the praetor. The person adopting claims the son as his own, rather as if he were property, by an action called vindication; the father puts up no defense, and so the praetor, who was surely aware of what was happening, awards the son to the claimant.

3.      Other Children. The archaic Twelve Tables, quoted above, prescribed that a “son” (filius) be released from parental power after three sales. The exact meaning of the original provision is not certain, but it seems to have been reinterpreted for use in adoptions and emancipations. For purposes of this reinterpretation, filius was interpreted narrowly to mean the son of a paterfa­milias; this excludes daughters, grandchildren of both sexes, and so on, who, it was held (on no statutory authority) were released after only one mancipa­tion. Assess this as an example of archaic legal interpretation.

4.      Defects in Procedure. What if the parties made an innocent mistake in exe­cuting the formalities? See Marcellus, D. 1.7.38: “An adoption that is not legally made can be confirmed by the emperor.” Does this necessarily prove that “the sales were empty forms” (W W Buckland)? The ceremony of adop­tion was finally abolished by Justinian (Inst. 1.12.8), who substituted official registration of the adoption.

5.      Consent? The adoption process is plainly controlled by the two patres. But were the child's wishes given any legal weight? Probably not. Justinian (C. 8.47.10 pr. and 11; both from A.D. 530) mentions an “old rule” that a son is not “forced” to pass to another household, by which is meant that he must not openly object.

6.      The Children. Unlike with adrogation (Case 148), a son can be given in adoption while his pater retains the son's children in his power; see Gaius, Inst. 1.135. (The same is true for emancipation; Case 155.) Is this just another illustration of the force of patria potestas?

7.      Do Adopted Children Count as Children? The marriage legislation of Au­gustus gave privileges to those with a stipulated number of children (Case 12). These laws, which created false incentives to adopt, were later amended (Tacitus, Annales 15.19); for purposes of the count, adopted children did not benefit the adopter, nor did the natural father lose them. See Justinian, Inst. 1.25 pr.