Aulus Gellius 5.19
Translation copyright 2001 Neil W. Bernstein; all rights reserved.
What adoption [adoptatio] and adrogation [adrogatio] are and how they differ. The formula that a person adrogating children uses to put this matter before the Roman people.
- When strangers are taken into another family in the place of legitimate children, the act happens either through the authority of the praetor or of the Roman people.
- When the act happens through the praetor's authority, it is called "adoption" [adoptatio]; through the people's authority, "adrogation" [adrogatio].
- Individuals are adopted as follows: their fathers, who hold legal power over them, cede them their rights through a triple emancipation [mancipatio] (1). They are claimed by the adopters in a legal action before a judge.
- Individuals are adrogated when, being under their own control [sui iuris], they give themselves into another person's legal power and are themselves responsible for this action.
- But adrogations are not undertaken randomly or without previous investigation.
- The comitia curiata (2), summoned by the authority of the priests, consider the following matters: the age of the person who wants to adrogate; whether he is the appropriate age to beget children himself (3); whether the property of the person being adrogated is being pursued for criminal purposes. Then the oath sworn in cases of adrogation, composed by Quintus Mucius Scaevola the chief priest (4), is pronounced.
- But a man cannot be adrogated unless he is already at the age of puberty [uesticeps]. (5)
- The process is called "adrogation", furthermore, because this kind of transition into a different family occurs through a rogation put before the Roman people. (6)
- The formula for this inquiry is as follows: "May it please you and may you command that Lucius Valerius be the son of Lucius Titius (7) by law and right, just as if he had been born of this father and mother into this family; and that Lucius Titius have the power of life and death over Lucius Valerius as a father has over his son. I ask you, fellow citizens, if these things should be as I have said."
- A ward cannot be adrogated, however, nor a woman who is not in her father's power. This is because there is no right of participation in assemblies for women, and it is not right for guardians to have so much authority and power over their wards that they could subject a free person, entrusted to their charge, to another person's control.
- Masurius Sabinus (8), however, wrote that the freeborn can legally adopt freedmen.
- But he thinks that freedmen are not permitted, nor ever should be permitted, to acquire the rights of freeborn men through adoption.
- "Also," he says, "if this ancient law were respected, even a slave could be given in adoption by his owner before the praetor."
- He says that many authorities on ancient law wrote that this can be done.
- I turn now to the speech On Morals that the censor Scipio Aemilianus delivered to the people. (9) Among other things that he criticized as defying the customs of the ancestors, Scipio particularly condemned the fact that a foster father could count his adopted son toward the special privileges of fatherhood. (10)
- Here is an excerpt from his speech: "The father votes in one tribe; the son votes in another. The adopted son helps his father as much as if he were a natural son. They order people to be counted in the census in absentia, so that there is no need for anyone to be present at the census." (11)
- For the triple emancipation, see Suet. Aug. 64, Gaius Inst. 1.134.
- Comitia curiata were formed of 30 lictors representing the thirty Roman voting wards [curiae] believed to have been created by Romulus. In addition to handling cases of adrogatio, these assemblies met to "pass the leges curiatae ratifying the status of elected magistrates and of promagistrates" (Andrew Lintott, The Constitution of the Roman Republic [Oxford: Clarendon Press, 1999], 49).
- Cf. Dig. 22.214.171.124-3 Ulpian (tr. Watson): "In cases of adrogation, the scrutiny of the court is directed to the question whether perhaps the adrogator is less than sixty years old, because then he should rather be attending to begetting his own children—unless it should so happen that sickness or health is an issue in the case or there is some other just ground for adrogation, such as his being related to the person he wishes to adopt. Likewise, one ought not to adrogate several people unless on some just ground. And adrogation of someone else's freedman or of an older person by a younger is out of the question."
- Quintus Mucius Scaevola was consul in 95 BC and died in 82 BC during Marius's proscriptions. His book of civil law is the oldest source compiled in Justinian's Digest of Roman Law.
- Cf. Gaius Inst. 1.102.
- A rogation [rogatio] is a formal proposal put before an assembly of the Roman people. For the procedure in cases of adrogation, cf. Gaius Inst. 1.99 (tr. Gordon and Robinson): "The authority of the people is used when we adopt someone who is an independent person. This kind of adoption is called adrogation, because the adopter is asked, that is, interrogated, whether he wishes the person whom he is about to adopt to be his lawful son; and he who is being adopted is asked whether he allows this to be done; and the people are asked whether they command it to be done."
- The formula uses these names for the sake of example; they do not designate real persons.
- Active in the first half of the first century AD, Masurius Sabinus was a prolific legal scholar; his book on civil law [Ius Civile] became the basis for legal commentaries by jurists of the later Empire.
- Scipio Aemilianus (185/4-129 BC) was consul in 147 BC and censor in 142; he captured Carthage in 146. For an excerpt from another speech of Scipio Aemilianus (condemning effeminates), see Gell. 6.12.5.
- Fathers of multiple children could claim particular advantages over the childless, particularly in the Augustan age; cf. Gell. 2.15.3.
- Fr. 14 Malcovati. For futher discussion of Roman adoption, cf. Suzanne Dixon, The Roman Family (Baltimore: The Johns Hopkins University Press, 1992), 112-113; Mireille Corbier, "Divorce and Adoption as Roman Familial Strategies", in Marriage, Divorce, and Children in Ancient Rome, ed. Beryl Rawson (Oxford: Clarendon Press, 1991), 47-78.
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