The Adoptio
The adoptio is an institution whose origin and history are connected to the ancient Roman family, which only in the period of Justinian changes some characteristics that make it assume a structure similar to the modern one: which main purpose was to move the labor force of one family to another, put in place with a private act based on the will of the two concerned fathers and without any indication of the will of the adoptee, at least during the most ancient period.
The adoptio or datio in adoptionem was the legal act by means of which it was given the adoption of filius familias alieni iuris, i.e. already subject to the power of his paterfamilias. As it was stated by Gaius: “Imperio magistratus adoptamus eos, qui in potestate parentium sunt, sive primum gradum libero rum obtineant, qualis est fuliu et filia, sive inferiorem, qualis est nepotis, pronepos pronentis”, according to it, this legal act was only intended to adopt people alieni iuris: a subject already depended on a paterfamilias left the original family to become a part of the family of the adoptive parents losing, at least until the classical period, any relationship, rights and duties towards the family of origin, taking them, since the adoption, in respect of the new adoptive family, that becomes his new paterfamilias.
We have no certain information regarding the period of origin of this institution, but it is certainly younger than adrogatio, whether before or after the Twelve Tables, even if the rule was the same, it has certainly contributed to the evolution of the adoption itself, "si pater filium ter venum duuit, filius a patre libere esto": a son to be freed from the original patria potestas, and enter under the adoptive patria potestas had to be sold three times.
To achieve this purpose, "the father sold his son three times to a third party with pactum fiduciae to disenthrall him: as a result of the emancipation the filius became free, but fell under the patria potestas of the pater, but after the third sale was free of the potestas ".
In ancient law, therefore, the adoption took place with a complex ceremony, consisting of two legal acts: first the power of the original father was extinguished through mancipatio and then a fictitious claim of the power of the adoptive father took place through in iure cessio: everything took place in imperium magistratus (the authority of magistrate), who assisted the parties in emancipated requires for mancipatio and a fictitious claim by the adopter.
Specifically, through macipatio the natural father gave the child to the adoptive father. The adopter freed him by manumissio, at this point the natural father mancipated him for the second time and the adopter freed him for the second time. By the third mancipatio the natural father loses the patria potestas on the child who is claimed by the adopter, "as a result of mancipatio, or three mancipationes, a daughter or a son had become mancipii by the buyer, but the father had placed in the sale, by nuncupatio, a pact according to which the buyer must proceed to reclaim a son or a daughter, and they actually perform codesta remancipatio." One or two macipatio was not enough to achieve the final exit of the filius from the patria potestas of the original father, as after the first or second mancipatio the filius returned under the original patria potestas.
Only after the formalization of this legal act, the second legal act could take place, namely in iure cessio: the original pater familias and the adopter appear before the praetor to carry out a process where the adopter, who has previously bought the filius, claims him as his own son, and the original father is silent, not in contradiction to the statement of the fictitious claim, or accepts. Immediately after, the praetor awards the filius to the claimant, in accordance with proceedings, as a child or grandchild.
The praetor and the governor, carrying out the adoption in imperio magistratus (the praetor in iure and the governor in the provinces) had the specific duty to assist the interested parties and, as it was seen, that for datio in adoptionem it was necessary to apply a fictitious claim: "the adopter claimed in court the person intended to adopt as his own child; the owner, the current pater familias, was not opposed to such a claim, and then, without any discussion, the praetor awarded the person as the filius who was claimed: through precisely this fictitious process, which is used frequently in the Roman world, the person becomes subject to the patria potestas of the adopter. "
It is evident that the formation of this institute lacks, at least in the earliest period, for the presence and the will of the adoptee who was only an object of this legal act, and passed from one authority to the other as filius or nepos.
The above procedure was applied only for boys, because if the individual object to the adoption was a daughter, it would be enough the only sale, one mancipatio.
With regard to the effects of adoption, the transition from one family to another, "determines a change in status familiae, in the sense that the adoptee leaves the family to enter the adoptive one; no changes take place, since the adoptee was and remains alieni iuris": for the completion of the legal act the adopter acquires in respect of the adoptee all the inherent power in the patria potestas, including ius vitae ac necis.
The legal effects of the adoption were certainly less invasive than those of the adrogatio: while according to the first only the adoptee changes status familiae, according to the second the adrogato and all the members of his family change status familiae, because his original family no longer exists, because it became a part of another family with all its original subjects, changing their status familiae.
There are many explanations built around the complex structure of the used ritual, but the only plausible answer is that of the absolute non-transferability of the patria potestas on their descendants in fact, as it is known, in principle, this power can be extinguished only with the death of its owner, who has as a natural consequence the partial fragmentation of the family group.
Probably, from the royal period, as passed on by Dionysius of Halicarnassus, and certainly from the decemviral period (451-450 BC), the patria potestas was limited by the important penalty for those who had abused ius vendendi, building in such a way, with the ritual described above, the only possible act: being still alive the pater could free the filius from the patria potestas.
Do not forget also, as already noted, this whole process is reported in accordance with the Twelve Tables, the rule which certainly represented a kind of penalty for the possible abuse that the pater could make on the children, that were decided to sell but not in an infinite way: the phenomena certainly found fertile ground in the economic and social situation of the fifth century BC when, after the fall of the monarchy, the majority of land to cultivate was held by the patricians: the conditions that made the plebs inevitably to relocate their labor-power to the patricians, through nexum or through the sale of their children in mancipio of the buyer, remaining under the authority of their pater.
This standard and its application for the adoptio demonstrate not only the unavailability of the patria potestas, but highlight a further aspect of it, i.e. its total incompatibility with a similar power: while it is not dissolved easily in the case of the son’s sale, it is dissolved in the case in which the patria potestas is explicated to the adopter, in the sense that two patria potestas on the same individual cannot coexist. In fact, in the case of termination of the patria potestas of the adopter, the filius will not come under the potestas of his natural father, but remains entirely free, as he becomes sui iuris.
In the Archaic period, the original power of the pater familias was established under the patria potestas, and regulated differently by the system of the power exercised by the pater on other dependent people, free in macipio and slaves, and other patrimonial entities: the power on family, the patria potestas and manus were not transferable, while the various forms of ownership and economically relevant power were transferable from one pater to the other, with substantially different functions.
Subsequently, in the post-classical period, the adoptio ended in an easier way with the only statements of interested parties made to municipal magistrate and intended to implement the new family relationship.
The basic requirements both of the adoptio and the arrogatio were basically two: the arrogant or adopter was male paterfamilias and sui iuris. In particular in the adoptio, over time and as it will be seen later, in the first place became more insistent demand for an appropriate age difference between the adopter and the adoptee, in the second place it was admitted the adoption of women, impubes and aggregation of new members also of families with a lot of children. All those alieni iuris could be adopted without distinction of sex or age, although it is asserted the need to establish the rules that would regulate a reasonable age difference between the adopter and the adoptee, that they can justify a natural parent-child relationship.
The adoptee loses any legal relationship with the original family and any expectation of succession, getting the position of a child in the new family in all respects and the right of succession of the pater adopter.
The Constitution of Justinian (527-565 AD.) In the late Roman Empire, a decisive reform was constituted with regard to the adoptio, motivated and above all resulted in important changes due to the new concept of the family and the patria potestas, deep and radical changes deriving from Christianity and Hellenism: "The essence of these changes is in the preference of the ethical element on the law of the ius naturale sulla lex, as Justinian says, in the prevalence of the duty on the law, the ethic approach has the family and the patria potestas, and equally the ethical content has the adoption."
With the reform it was maintained the distinction between the adrogatio, always referred to people sui iuris, and the adoptio, always referred to people alieni iuris, but the latter was divided into the adoption plena and the adoptio minus plena “ Adoptio autem duo bus modis fit: aut principali rescritto, aut imperio magistratus. Imperatoris auctoritate adoptare quis potest eos easve, qui, quave sui iuris sunt: quae species adoptionis dicitur adrogatio: imperio magistratus adoptamus eos, easve, qui, quaeve in potestate parentum sunt, sive primum gradum libero rum obtineant, qualis est filius, filia: sive inferriorem, qualis est nepos, neptis, pronepos, proneptis”:
The adoptio plena allows the adopter to buy the patria potestas and eliminates any succession of the adoptee in respect of the original family and it can take place only if a descendant is adopted by the ancestor, while for the adoptio minus plena the ties of kinship and expectation of succession towards the original family remain intact and add the new expectations that the adoptee acquires towards a new adoptive family.
The reason for these changes was that "the emperor finds it unfair that the rights of blood, nexu copulata divine, can be ..... trampled (defraudari ridicule), and requires that the adoption does not have the effect unless the adopter is a natural ancestor...... the domestic spirit has triumphed over the political character": thanks to the principles of Christianity and Hellenism "the nature prevails over the lex"(P. Biondi).
Adoptio plena
As it was mentioned the adoptio plena was provided for the adoption in the family and was used by the ancestor mother or father for the adoption of a descendant.
It occurred in two cases: in the case of the adoption by an ancestor (maternal or paternal) and in the case of the adoption of a grandchild given to ancestry, who kept the father of the adoptee under the authority.
This type of adoption produced capitis deminutio minima, i.e. the loss of the position in the previous family: the adopted person lost all ties with the family of origin, passing under the patria potestas of the adopter. Consequently the adopted person lost all rights and duties towards the family of origin, including the right of succession. Assuming the status of the filius, therefore the legitimate son, the new adoptive family acquires all the rights and obligations, including the right of succession.
Basically, nothing changes with respect to the classic adoption, only its distinction from the adoptio minus plena introduced, as noted above, in the reform of Justinian.
Adoptio minus plena
The adoptio minus plena was the real novelty of the reform made by Justinian, however intended with respect to people alieni iuris, but characterized by the fact that it was istituibile in all cases where there was a family relationship between the adopter and the adoptee, unlike the adoptio plena which was instead provided for a parental relationship. In the case of the adoptio minus plena the adoptee was not referred to the patria potestas of the adopter, which in his turn acquired no title on the goods of the adoptee, not even the usufruct: the adoptee did not acquire the status of a legitimate child, therefore could not claim any rights in respect of the adopter except the succession in the order of intestate succession, continuing to maintain the bond of kinship and the right of succession with the original family.
This type of adoption was introduced by modeling with the new concept of the Roman family, founded on the natural relationship, allowing to make use of the right of succession to the person who has been adopted, only in respect to the adopter and not to other people of the same adoptive family.
Another new feature in this type of adoption is the possibility given to the women remained childless because her children had died, to adopt someone: this possibility, introduced for the first time in the Roman law highlights the evolution of the concept of the family but especially of the patria potestas, not intended more as conditio sine qua non exclusiva, from this time, and in this type of adoption.
The procedures of the adoptio plena and the adoptio minus plena
The procedures of the adoption plena and adoptio minus plena took place in imperio magistratus, although the reform of Justinian changed this procedure to the praetor, repealing the procedure of the fictitious process of the triple sale: it was sufficient the presence of the original pater familias with the filius and the adopter before the competent magistrate to express the unanimous will on the establishment of the adoption.
It is not admitted anymore the adoption among absentees, in particular the filius, "object" of the adoption, who in ancient times was not even present: according to the reform of Justinian without his presence the adoption could not be completed, "for the first time adoption appears as a transfer, a transfer of the child from one father to the other... the emperor also ordered for the first time the need for the accession of the filius familias, if not in the form of the open declaration, at least in that of a passive assent manifested by silence, not to contradict the act of the two fathers." Volterra does not exclude, in this new process, even the consensus of the filius given for the adoption: "In the Justinian law, the prior emancipation of the adoptee of the original family was abolished; the adoption is presented as an act done by the two pater familias with the consent of the adoptee. This act is a declaration of the parties before the magistrate or before a notary public (per tabulas), which the adoptee adheres, even in the passive form of dissent": the consensus expressed or not, however, the adoptee could not disagree with the will of the pater familias and adopter. A step forward was made, however, namely the admission of his presence to his fate of becoming adopted.
Adoptio naturam imitatur
The evolution of the concept of natural bond, within the family, also corresponds to the evolution of the patria potestas, starting from the classical period, and the manifestation of this evolution, as it was stated, is evident in the institution of the adoption: "the purpose of the adoption is to provide the adopter, according to ius legitimum et pontificium, what he could not get from nature, the artificial acquisition of a son must establish the relationship between him and the adopter extremely similar to that created by nature. "
This is the principle of the adoptio naturam imitatur that, although it was already in the classical period, was codified only in the Low Roman Empire, changing the concept of adoption especially with Justinian: "The adoption of Justinian is no longer such an aggregation of a new family not represented the subjugation to the patria potestas of the adopter. What prevails is what seems to be the reverse side, but what in reality has a different thought the acquisition of the position and rights of the child with respect to the adopted son. "
The influence of the principle adoptio naturam imitatur changes the concepts of paternity and filiation: the pater continued to have the pater potestas, both in the case of the adrogatio and adoptio plena, but not in the case of the adoptio minus plena. On the one hand the patria potestas was the protection of the adopter, especially patrimonial, in relation to the adoptee, on the other hand the patria potestas, from the post classic period, began to lose its absolute patriarchal content, including ius vitae ac necis: the pater becomes more father and less sovereign in respect to the adoptee, who is considered a real son, emphasizing more positive parental relations that characterize the relationship between a father and a son.
In the codex of Justinian conditions and requirements were specified in accordance with the principle of the adoptio naturam intatur, of this parental relationship that was introduced: it was impossible to adopt neither impubes nor those who have not attained the age of majority (i.e. 25 years old) nor emasculated.
The important requirement for the adoption was the appropriate age for being able to adopt, to sixty years old, unless there was iusta causa for which there could be no hope of having children and, of course, the absence of other children. It also established the compulsory age difference between the adopter and the adoptee, which was to be more than eighteen years. The codex of Justinian established “Minorem natu non posse maiorem adoptare placet: adoptio enim naturam imitatur te pro nostro est, ut maior sit filius quam pater debet itaqueis, qui sibi per adrogationem vel adptionem filium facit, plena pubertate, id est decem et octo annis precedere”, because otherwise there would not be any relationship to nature.
The defense of the patria potestas
The patria potestas could be threatened by the third party who behaved in respect to the children of others as if they were holders of power on them: since the most ancient period, the occurrence of this event gave rise to sacraments in rem and rei vindicatio, i.e. two possible actions to regain possession of the res removed from its legal owner, in practice two equal rights had power and property: it is unthinkable nowadays to match a child to a thing, but as it is known, since ancient times, children were considered "property" of the pater familias as a natural consequence of that great power that was identified in the patria potestas.
Over time especially for the rei vindicatio was no longer used for the vindication of patria potestas, because was not well adapted to acquire potesta on other people's children paying a sum of money by way of litis aestimatio.
Over time it was affirmed more means established by the praetor, as the interdictum (esibitorio), de Liberis exhibendis and de Liberis ducendis (proibitorio), by which it was claimed and fell under the power of the typical pater postestas, target action to return to the pater his son withdrawn in bad faith. Some exceptions were provided, about the right to bring an interdictum upon the occurrence of certain events: so if this type of means was sued against the mother and this caused serious reasons that would give back the child to her instead of the pater, or even in the case when the pater made use of bringing the interdict de Liberis exibendis and ducendis against the husband of his daughter to take her back breaking the bonds of the marriage.
The exercise of patria potestas, besides being hampered by strangers, could also be disturbed by the rebellion or even the escape of children, predictable and especially natural consequences, taking into consideration the burdensome weight of the potestas. The legal system did not deal with these cases, the pater familias was directly involved to get back or find the child and provide for the punishment.
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