1Modestinus, Rules, Book II. Sons of families are not only created by nature but also by adoption. 1The term “adoption” is one of general signification, and includes two kinds; one of which is likewise styled adoption, the other arrogation. The sons of families are adopted; those who are their own masters are arrogated.

2Gaius, Institutes, Book I. Adoption, generally speaking, takes place in two ways, either by the authority of the Emperor, or by the order of a magistrate. We adopt those by the authority of the Emperor who are their own masters; and this kind of adoption is called arrogation, because he who adopts is asked, that is, interrogated, whether he is willing that the party whom he is about to adopt shall be his lawful son; and he who is adopted is asked whether he suffers this to be done, We adopt by the order of a magistrate those who are under paternal control, whether they are in the first degree of children, such as son and daughter, or in one that is more remote, as grandson and granddaughter, and great-grandson and great-granddaughter. 1There is one thing common to both kinds of adoption, namely, that those who are incapable of procreation, as for instance, eunuchs, can adopt. 2Adoption effected through the Emperor is peculiar in that if anyone who has children under his control gives himself in arrogation, he himself is not only subjected to the authority of his adoptive father, but also his children and grandchildren pass under the control of the former.

3Paulus, On Sabinus, Book IV. Where the son of a family becomes a consul, or governor, he can be emancipated, or given in adoption before himself.

4Modestinus, Rules, Book II. It is the opinion of Neratius that a magistrate before whom a legal action can be brought can emancipate his own children, or give them in adoption before himself.

5Celsus, Digest, Book XXVIII. In adoption, the will of only those parties who are their own masters shall be consulted; but where children are given in adoption by their fathers, the will of both must be taken into consideration, either consent being given, or no opposition being offered.

6Paulus, On the Edict, Book XXXV. When a person is adopted as grandson just as if he were born to a son, the consent of the son is required; and this opinion Julianus also rendered.

7Celsus, Digest, Book XXXIX. When an adoption is made, the consent of those who will be connected by agnation is not necessary for that purpose.

8Modestinus, Rules, Book II. It was formerly held that the authority of a curator could not be interposed in a case of arrogation; but this has been very properly changed by the Divine Claudius.

9Ulpianus, On Sabinus, Book I. Even a blind man can adopt, and be adopted.

10Paulus, On Sabinus, Book II. When anyone adopts a grandson as if he were born to his own son over whom he has control, with the consent of the latter, he does not become a proper heir of his grandfather; as, after the death of the grandfather he comes, as it were, under the control of his father.

11The Same, On Sabinus, Book IV. If anyone who has a son adopts a person as a grandson, just as if he was the son of his son, and the latter does not consent; if the grandfather should die, the adopted grandson does not come under the control of the son.

12Ulpianus, On Sabinus, Book XIV. He who is released from paternal authority cannot afterwards be honorably subjected to it again, except by adoption.

13Papinianus, Questions, Book XXXVI. By almost every principle of law, when the power of an adoptive father has once been ended, no vestige of it afterwards remains; and even the paternal dignity obtained by adoption is lost when the relationship is terminated.

14Pomponius, On Sabinus, Book V. A grandson conceived and born under the control of his adoptive grandfather also loses all his rights by emancipation.

15Ulpianus, On Sabinus, Book XXVI. When the father of a family is adopted, all the property which belongs to him and all that can be acquired is, by silent operation of law, transferred to his adoptive father; and, moreover, his children who are under his control follow him, as well as those who may return from captivity under the law of postliminium, and those who were unborn when he was arrogated are in like manner brought under the control of the arrogator. 1Where a man has two sons, and a grandson by one of them, and desires to adopt the grandson as born of the other son, he can do so if he emancipates him and adopts him as if he were born to the other son, for he does this as if he were a stranger, and not his grandfather; and for whatever reason he can adopt anyone born of a stranger he can adopt him as it were born of another son. 2In arrogation it must be ascertained whether the arrogator is under sixty years of age, because if he is, he should rather devote himself to the procreation of children; unless, indeed, disease or weakness of any kind, or any other just cause for arrogation exists, as, for instance, if he desires to adopt some person related to himself. 3Again, no one should arrogate several children, unless for a good reason. Nor should he adopt the freedman of another, nor anyone older than himself.

16Javolenus, On Cassius, Book VI. For adoption can only take place with persons between whom the natural relation of father and son might exist.

17Ulpianus, On Sabinus, Book XXVI. Anyone who administers the office of guardian, or has the curatorship of another, is not permitted to arrogate him, so long as the minor is less than twenty-five years of age, for fear that he may have arrogated him to avoid rendering an account. Inquiry must also be made as to whether the reason for the arrogation is not an infamous one. 1Arrogation of wards is only permitted to those who, induced by natural relationship or great affection adopt them; and it is prohibited to others lest it may be placed in the power of guardians to terminate their trust, and invalidate the substitution made by the parent. 2It is necessary, in the first place, to learn the amount of property belonging to the ward, as well as that of the party who desires to adopt him; so that, by comparing the two, an opinion may be formed as to whether an adoption would be advantageous to the ward. Then the mode of life of the party, who desires to bring the ward into his family should be investigated; and third, his age must be considered, so that it may be determined whether he had not better pay attention to the procreation of children, than to bring under his control some one belonging to another family. 3Moreover, it should be taken into consideration, whether he who already has one or more children ought to be permitted to adopt another, in order that the expectations of those begotten in lawful marriage may not be diminished, which expectations every child prepares for itself by respectful behavior; or whether the ward thus adopted would obtain less than he was worthy of. 4Sometimes the adoption of a child who is more wealthy by a person who is poor is permitted; if the latter is of a thoroughly temperate life, or his affection is honorable and publicly known. 5It is, however, customary to give security in cases of this kind.

18Marcellus, Digest, Book XXVI. For when a man desires to arrogate a ward, if he shows a good reason for doing so in other respects, he can only be heard if he gives a bond to a public slave binding himself, “that he will restore any of the property of his ward that may come into his possession to those persons who would have been entitled to said property, if the arrogated party had remained in his former condition”.

19Ulpianus, On Sabinus, Book XXVI. By these words of the bond which must be furnished by the arrogating party, “to those entitled to said property”, there is no doubt that it was intended to include any manumissions made by a second will; and especially where a slave was substituted as heir, and also to protect the interests of legatees. 1If this bond is not given, an equitable action will lie against the arrogator.

20Marcellus, Digest, Book XXVI. This bond becomes operative where the ward dies before reaching the age of puberty. Although the ward is mentioned as a male, the same proceeding must be taken with reference to a female ward.

21Gaius, Rules. For women may be arrogated by an Imperial Rescript.

22Ulpianus, On Sabinus, Book XXVI. Where an arrogator dies leaving an adopted son who is under age, and he dies afterwards before reaching puberty, will the heirs of the arrogator be liable? It must be held that the heirs also are bound to deliver up the property of the party arrogated, and the fourth part of the estate besides. 1The question arises whether the arrogator can substitute another heir to the adopted minor son? I think that the substitution cannot be admitted, unless merely with reference to the fourth part of the estate of his adoptive father to which he is entitled; and that it only extends to the time of puberty. But if he should leave his property in trust to be delivered at a certain time, a trust of this kind should not be admitted; for this share does not vest in him by the will of his father but by an Imperial provision. 2All these rules are applicable whether anyone has arrogated a boy under puberty as a son, or as a grandson.

23Paulus, On the Edict, Book XXXV. When anyone is given in adoption he becomes cognate to all those to whom he becomes agnate, and does not become cognate to those to whom he does not become agnate, for adoption does not impart the right of blood but the right of agnation; and therefore if I adopt a son my wife does not occupy the place of a mother to him, nor is she related to him by agnation, because she is not his cognate. Again, my mother does not occupy the place of grandmother to him, since he does not become connected by agnation with those who are outside of my own family; but he whom I have adopted becomes the brother of my daughter, since my daughter is a member of my family, and marriage between them is prohibited.

24Ulpianus, Controversies, Book I. Anyone who is absent, or who does not give his consent cannot be arrogated.

25The Same, Opinions, Book V. After the death of his daughter who had been living as her own mistress on the ground of having been lawfully emancipated, and who died after appointing heirs by her will, the father is forbidden to institute proceedings against his own act, claiming that the emancipation was not made legally, or in the presence of witnesses. 1A party who is absent can neither adopt, nor arrogate, nor carry out by the agency of another any of the formalities which are requisite in such cases.

26Julianus, Digest, Book LXX. Anyone whom my emancipated son adopts is not my grandson.

27The Same, Digest, Book LXXXV. The child of an adopted son is considered by the Civil Law to occupy the same place as if he himself were adopted.

28Gaius, Institutes, Book I. He who has a son and a grandson under his control is at perfect liberty to release his son from his authority, and to retain it over his grandson; or, on the other hand, to retain his son under his control and to manumit his grandson; or to make both of them their own masters. We hold that the same rule applies to a great-grandson.

29Callistratus, Institutes, Book II. Where the natural father does not possess the power of speech, but can indicate in some other way than verbally his desire to give his son in adoption, that adoption shall be confirmed; just as if it had taken place under the forms prescribed by law.

30Paulus, Rules, Book I. Those who have no wives can adopt children.

31Marcianus, Rules, Book V. A son, whether he is natural or adopted, who is under the control of his father, cannot in any way compel him to release him from it.

32Papinianus, Questions, Book XXXI. However, a boy who is under puberty and has been adopted, should sometimes be heard if, having arrived at puberty, he desires to be emancipated; and this must be determined by the judge after the case has been stated. 1The Emperor Titius Antoninus decided in a Rescript that it was permissible for a man to adopt his stepson of whom he was guardian.

33Marcianus, Rules, Book V. And where the adopted son, having arrived at puberty, proves that it is not advantageous to himself to be brought under the paternal control of the other, it is just that he should be emancipated by his adoptive father, and in this way be reinstated in his former condition.

34Paulus, Questions, Book XI. The question arose where a son is given to you in adoption, for instance under this condition that, “after three years, you will give the same person to me in adoption”; whether any action will lie against you. Labeo thinks that there is no cause of action, for it is not in accordance with our customs for anyone to have a son temporarily.

35The Same, Opinions, Book I. The rank of a person is not diminished by adoption, but is in fact increased; therefore a Senator, if adopted by a plebeian, remains a Senator; and, in like manner, a son of the Senator still remains such.

36The Same, Opinions, Book XVIII. It is settled that a son can be emancipated anywhere in order to be released from paternal authority. 1It has been decided that manumission and adoption can be performed before a Proconsul, even in a province which has not been assigned to him.

37The Same, Sentences, Book II. Anyone can adopt another as his grandson, even though he has no son. 1No one can a second time adopt a person whom he has once adopted and emancipated.

38Marcellus, Digest, Book XXVI. An adoption not legally made may be confirmed by the Emperor.

39Ulpianus, On the Office of Consul, Book III. The Divine Marcus stated in a Rescript to Eutychianus that, “The judges will determine whether you can obtain what you desire, after those who may object have been produced before them, that is to say, those who might be injured by the confirmation of the adoption”.

40Modestinus, Differences, Book I. By the arrogation of the father of a family the children who are under his control become the grandchildren of the arrogator, and at the same time with their father are placed under his authority, which does not also take place in case of adoption; for then the grandchildren remain under the control of their natural grandfather. 1He who adopts, and also he who arrogates, must not only be older than the person whom he makes his son either through arrogation or adoption, but he must be so by the term of complete puberty, that is to say, he must be further advanced in age by eighteen years. 2A person who is impotent can obtain a proper heir for himself by arrogation, nor is his corporeal weakness an obstacle to his doing so.

41The Same, Rules, Book II. When a father emancipates his son by whom he has a grandson under his control and afterwards adopts his son and dies, the grandson does not again come under the authority of his father. Nor does the grandson come under the control of his father if his grandfather retained him in his power when he gave his son in adoption, and readopted him afterwards.

42The Same, Pandects, Book I. We can even give an infant in adoption.

43Pomponius, On Quintus Mucius, Book XX. Adoption of sons as well as grandsons can take place so that anyone may seem to be our grandson as through a son, although his birth may be uncertain.

44Proculus, Epistles, Book VIII. Where anyone who has a grandson by a son adopts another in the place of his grandson, I do not think that when the grandfather dies any bond of consanguinity will exist between the grandsons. But if he adopted him in such a way that he should be his grandson by legal right, for instance, as if he had been the son of Lucius his own son and the lawful wife of the latter, I am of the contrary opinion.

45Paulus, On the Lex Julia et Papia, Book III. The liabilities of him who was given in adoption are transferred to the adoptive father.

46Ulpianus, On the Lex Julia et Papia, Book IV. A son begotten by me while in slavery can be brought under my authority by the indulgence of the Emperor; still, there is no question that such a son remains in the class of freedmen.