27 The Shifting Focus of Adoption

JOSEPH W MCKNIGHT (DALLAS)

INTRODUCTION

The history of the law of adoption has long posed a number of puzzling ques­tions but has generated little scholarly discussion. The very meaning of the term “adoption” has also tended to shift from time to time, while, for uncertain rea­sons, in some regions the practice of adoption (in the strict sense of the term) has sometimes seemed to disappear.

In a broad sense, adoption is the introduction of a stranger to the blood to a new familial relationship as though a blood relative. At the least to be reason­ably termed adoption, an institution must have significant attributes of the par­ent-child relationship. In Western European culture, over most of the last millennium, the most significant effects of adoption have been related to suc­cession to property. The institution and related practices have never the less had other familial consequences that were not primarily proprietary. Adoptions in past cultures have sometimes had significant religious and political overtones as well. The concept of adoption has existed in many cultures, has been identified by disparate names, and has served a number of different purposes in widely dif­ferent cultural settings. Among the ancient Romans, adoptees were usually drawn from among family members, including affines, and the most common form of adoption was of an adult kinsman.^[664] In Roman law the practice of adop­tion underwent several significant shifts of emphasis: from a familial institution focused on religion to one oriented to succession during the republican period, and from the latter to a multifaceted institution in the fifth and sixth centuries.^[665] These shifts suggest mounting pressures for institutional change over perhaps several centuries.

ROMAN LAW AND GERMANIC PRACTICE

After the collapse of Roman authority in the West, recollections of Roman prac­tice merged with similar institutions in some regions, while in other areas that effect was postponed until the widespread reawakening of interest in Roman law. In still other regions, the practice of adoption may not have emerged until later still. In its contractual aspects and consequences for succession, the Germanic practice of adoption fundamentally coincided with late Roman usage. Succession, however, was the primary purpose of Germanic practices of adoption. In the context of inheritance the effects of Germanic adoption did not differ markedly from those of the exercise of Roman testamentary power in favour of a stranger. The testament was, however, an institution which Germanic legal systems usually lacked prior to their romanisation. In northern Italy, for example, the Lombard population maintained Germanic traditions of heirship after the sixth century, and their rules of succession largely replaced those of the Romans. Hence when a descendant successor was wanted, the Lombard per gairethinx, a practice which resembled Roman adrogation,^[666] filled the need that a Roman testament would have supplied in the absence of any can­didate for legitimation.^[667] The Roman population continued to employ wills, however, and in time Lombard contracts of adoption for inheritance came more to resemble the donationes mortis causa of Roman law. The Germanic formal­ities of adoption thus generally disappeared^[668] while the contract of adoption con­tinued as an alternative means of succession.^[669] When the old Roman rules were resuscitated in northern Italy, Germanic concepts tended to fuse with Roman principles and nomenclature, both for heirship strategies and sometimes for ordinary familial purposes.

In recounting usage of their own time or the past (whether in Latin or in the vernacular) many commentators have not been careful to distinguish between the Roman and Germanic elements of the institution, so that it is not easy to determine which is meant. When it was said that adoption had disappeared from, or was not practised in, a particular region, it was not clear whether Roman practice was referred to or a non-Roman practice resembling Roman usage. The latter might not have required judicial approval in the case of an infant adoption or that of the ruler in the case of an adrogation. These ambigu­ities have made the sources very difficult to evaluate.

In popular understanding there has typically been confusion between legiti­mation and adoption and between adoption and fostering. Confusion of these concepts has tended to accompany the history of adoption for well over a thou­sand years: in the practice of mantling premarital children on their parents’ mar­riage, in the use of adoption as a blind or substitute for legitimation because of religious taboos or political unavailability of legitimation; or merely in popular linguistic confusion for describing the practice of fostering and even the processes of apprenticeship and domestic service. The term “adoption” has also been widely used to describe the promotion of a person within the bloodline to a rank in heirship closer to the adopter without any formal act apart from tes­tamentary designation. There is now an occasion to introduce additional terms: “old adoption” to refer to the largely succession oriented usage before 1800 and “new adoption” to define the institution meant mainly to satisfy a sense of par­enthood that has developed in Western culture since that time.

The use of any sort of adoption is heavily dependent on a need for such a mea­sure: the lack of an appropriate familial member such as a descendant or the kind of descendant desired. Absence of issue is ordinarily the result of the steril­ity of one or both spouses or the death of their offspring due to disease or other misfortune.

⁷E A Wrigley, “Fertility Strategy for the Individual and the Group”, in C Tilly (ed), Historical Studies in Changing Fertility (Princeton, 1978) 135, 138—46; J Goody, Production and Reproduction (Cambridge, 1976) 133-4 (Appendix 2 with G A Harrison).

It is very hard to know what would be the expected rate of adoption if enough children were available for adoption to meet the desires of potential adoptive parents and prevailing modes of adoption.

Though the Theodosian Code merely alluded to adoption, Justinian’s enact­ments perpetuated and altered the rules of later Roman adoptive institutions.^[670] How extensively Roman practice was thereafter used cannot be known. By the time Justinian’s laws were promulgated eastern Germanic tribes had already made significant inroads into Western Europe. They had brought with them a new set of customs resembling adoption. We cannot accurately guess the fre­quency of such practices among the Germanic tribes as they continued to settle within the former Roman empire. We also have little information on the early Christian Church’s general attitude toward adoption, though it does not seem to have sustained a negative view of civil adoption.^[671]

The most striking aspect of Germanic adoptive practices was their employ­ment for the purpose of succession and the apparent absence of any under­standing of a true familial bond in the relationship. From the seventh century there is evidence of Lombard adoption practice in northern Italy^[672] and of the Frankish affatomie in France.^[673] These practices included achievement of suc­cession by means of rites of fictitious parenthood, as well as fictitious brother­hood, and Pitzorno termed them private (or informal) adoption.

ADOPTION AND THE IUS COMMUNE

The resurgence of Roman legal learning produced a marked revival of the Roman concept of adoption in northern Italy from the twelfth century and in Spain and southern France from the thirteenth.^[681] Thus, strains of Roman adop­tio and adrogatio, sometimes mixed with Germanic usage, flowed back into European practice. For several centuries thereafter, the principle of adoption showed some resilience in Spain and Portugal,^[682] southern France, and northern Italy. A seeming decline, except perhaps in Northern Italy, followed in the six­teenth century. The practice was usefully employed in Italy into the eighteenth century. Perhaps invigorated by the resurgence of Roman legal thought, tribal elements of legal notions resembling adoptio also enjoyed renewed vigour in Germany through the eighteenth century.

The most common legal references to Roman adoption in Western European sources from the fifteenth through the eighteenth centuries are doctrinal. These writings, however, supply little more than hints toward discerning the contours of the institution as practised. Nonetheless, some writers enumerated instances of adoption (ones that were often seemingly political) that would have been widely known. These sources therefore suggest a prevailing common know­ledge of the practice at the higher levels of society and thus its probable general social acceptance. From time to time, some doctrinal writers made observations on Roman adoption (usually its non-use), but the accuracy of those comments may have been limited by an author’s familiarity with particular geographical areas. They may not tell much, if anything, about the object of adoptive prac­tices.

Legal records (though they may not recount all the issues at stake) record spe­cific instances of adoption or refer to specific disputes and are much more reveal­ing. Regardless of the outcome of a particular dispute, one can see in some of these proceedings the nature of the practice employed in current succession strategies and the uncertainties that those plans sometimes produced. Judicial decisions and the opinions of learned lawyers used in the deliberative process are irregularly preserved in Western Europe. They occur most commonly in the Papal states, where some might have expected to find hierarchical hostility to the institution of adoption, and in Germany. In these sources, adoption disputes related to succession predominated, but there were other matters sometimes at issue. Northern Italian decisions from the late sixteenth to the early eighteenth century illustrate local usage but do not necessarily suggest attitudes toward the institution elsewhere.^[683] As modern research has found mounting evidence of adoption (particularly in France where it was generally said that adoption was not practised), it is also striking that the incidence of recorded disputes con­cerning adoption was very low even as compared to that of the practice itself.

A man or woman without a legitimate child and desirous of utilizing the ben­efits of a family would ordinarily have sought to legitimate an illegitimate child should one have been available. The ecclesiastical or civil bars to legitimation might have led them to look to adoption as a possible alternative. A prospective adopter would have then looked to other blood relatives for a potential adoptee, in view of the objects to be achieved, that is, primarily familial responsibility and succession. In the absence of an available familial member the adopter ulti­mately would have sought to adopt a stranger. If perpetuation of a line of gen­try or nobility were the principal object of bringing a stranger into a family, an adopter would have had two options. First, he could have taken his chances on rearing an infant of unknown ability (in a time of great uncertainty of life). Alternatively, he could have relied on the proven qualities of a young adult who had already survived the dangers of adolescence but without early training in familial principles.^[684] The most common barrier to any such succession strategy was the law of succession to feudal lands. The text of the Libri Feudorum stated the prohibition: adoptivus filius in feudum non succedit.^[685] Thus, if land were held under feudal terms, the barrier against succession by an adopted child or grandchild was formidable if not everywhere effective and not applicable to all situations of succession.

Adoption in the Italian lands in the early modern period

Were succession the principal object, an adopter would not ordinarily go beyond blood kin: indeed sometimes mere rearrangement of succession was the primary and only significant object of adoption. Most early modern Italian adoption disputes seem to have arisen in the context of succession and some seem to have matured from well-planned succession strategies. At issue in sev­eral of those Italian disputes was the validity of an adoption or adrogation to promote a male of the blood from a more remote to a closer degree of relation­ship to a dispenser of family property. Justinian’s Institutes supplied the inspi­ration for this device:

“If a natural father should give his son in adoption not to a stranger but to the mater­nal grandfather of such son, or if a natural father who has been emancipated should give his son to his paternal or maternal grandfather or great grandfather, in those cases (because the right of nature and adoption are in the same person) the power of the adoptive father is established both by natural ties and by legal formality so that the adopted son will be both in the family and under the power of his adoptive father.”^[686]

That provision was not, however, made applicable to adrogation. Such a claimed succession arising out of an adrogation of 1576 failed in part of its pur­pose before the Roman Rota in 1597.^[687] Pope Gregory XIII had allowed a grand­father to adrogate his daughter’s son. The adrogater later made a testamentary legacy in trust to the adrogatee that infringed the legitimate share of the adro- gater’s granddaughter, though she had consented to the adrogation. Twenty- one years later, her dispute was before the Papal court, which concluded that the effort to cut down the granddaughter’s legitimate share was ineffective under a local ordinance providing specifically for legitimate succession to females. Though a Papal adrogation had been achieved, it did not have all the effects of promoting a grandson to a son as sought by the adrogater. The court, however, seemed reluctant to base its conclusion forthrightly on the right of a forced heir or some other general principle rather than the language of the specific local rule.

In the absence of a claim by a forced heir, an adoption of 1525 was later dealt with more favourably. The object of the adoption was to promote the succes­sion of a maternal grandson over the rights of mere blood-cognates; the adoptee’s right successfully withstood their contest in 1632.^[688] An almost identi­cal hypothetical situation (posed in a Florentine decision of 1708) was similarly resolved to the detriment of a blood-cognate.^[689] Adrogation or adoption thus provided a means whereby a daughter’s son might be moved ahead in the fam­ily line to defeat the succession rights of male and female collaterals; it was, however, a less certain way of defeating those of a legitimate claimant in the direct female line. Use of this legal feint in similar circumstances to promote a real stranger to the blood of the adopter seems therefore to have been doomed to failure. Two opinions of Girolamo Gabrielli dealing with a late sixteenth cen­tury dispute illustrate this point.²⁸ In 1558, a married man of fifty-seven (whose wife was fifty) adrogated Francesco, who was over eighteen. On the same day as that of the adrogation the adrogater made a will by which he instituted his adro- gatee as his heir. After the death of his wife in 1560, the adrogater made a new will in which he reiterated the appointment of the heir in 1561. He then married a younger woman who gave birth to their daughter in 1567. After her father’s death in 1568, a claim was made on behalf of the daughter against her adrogated brother’s right to an emphyteusis held as a feudal entail. Gabrielli concluded that the will had been effectively put aside by the legitimate daughter’s birth. The entailed property could not pass to an adopted son, and the legitimate daughter was entitled to her intestate share, as was the adrogated son to his. As to the rest of the property, which consisted of moveables, the legitimate daugh­ter and adrogated son shared equally on intestacy.

Two further decisions relating to succession to benefices leave an uncertain impression of the attitude of the Papal court over a long period. In 1590 the Roman Rota concluded that the creation of an advowson made in favour of the grantor, his heirs, and their descendants could not pass to an heir’s adoptee (who was in fact a stranger to the blood) by the will of the heir.²⁹ The court reached this decision, however, on the narrow ground that the terms of the grant limited takers to the actual descendants of the grantor’s heirs. Sixty-six years later, another dispute concerning similar subject matter was before the Papal Rota.³⁰ The Pope had presented three benefices to the elder Grissi, who was sur­vived by five sons. Of the five sons only the youngest had issue, four daughters.

“Adoption in Late Medieval Florence”, (1998) 34 Medievales. Kuehn’s careful search uncovered very few instances. In one instance (1516) an adoptee (who was not a blood relative) did not achieve succession because he had been emancipated by his adoptive father and had previously lost that right from his biological father. Another example was merely evidenced by a 1496 will naming an adopted blood-relative as heir. A further but earlier Florentine adoption of 1471 had produced a suc­cession dispute that apparently turned on the consequences of the adoptee’s violation of a testa­mentary condition of heirship. The surviving record, however, fails to reveal the outcome of the dispute.

²⁸ G Gabrielli, Consiliorum 1 (Venice, 1596) no. 91 at p. 105b and no. 113 at p. 132b.

²⁹ F Pena, Recollectae decisiones (Lyon, 1648) p. 61, no. 73 [1590]; P Rubio, Decisiones sacrae Rotae Romanae coram Francisco Penia (Venice, 1648) p. 62, no. 73 [1590].

³⁰ Decisiones Sacrae Rotae Romanae (hereafter SRR) 12 (1698) no. 100 [1655] p. 137 and no. 190 [1656] p. 273. In this instance an inordinate amount of time had passed since the death of the testa­tor, as in a number of other cases. For another case involving a similarly long lapse of time, see G de Comitibus, supra n.27, 1 pt. 1, Rota Senensis no. 37 [1708] p. 254. For another Sienese adoption noted by Kuehn, supra n.27, at n.43, see G Corti, “La Campagnia di Taddei di Bartolo e Gregorio de Cecco, con altri documenti inediti” (1981) 25 Mitteilungen des kunsthistorischen Institutes in Florenz 373, doc. XVI at 376—7.

Two of those had become nuns, the third had married and had two daughters, and the fourth daughter (evidently a spinster) had adopted a son. Brotherly bad feelings had been generated by the belated decision of the eldest of the five sons to change his will. In his will of 1581 he had named his three bachelor brothers to take his interest in the benefices. In a new will of 1607, however, he had named the adopted grandnephew as his heir to the advowsons under a testa­mentary trust. On his death the disappointed heirs under the first will sought to invalidate the bequest to the adopted nephew under the second will. Though they had apparently succeeded initially, they ultimately failed two decades later. The court then held that the interest in the benefices could pass to the nephew, who was presumably a stranger to the blood, but not an adoptee of the testator, who had no forced heirs. The court, however, put no emphasis on the point that the claimants were merely blood-cognates and not forced heirs.^[690] The grant had prescribed no limitations that were mentioned. Thus, after all the surviving fra­ternal heirs were gone or very old, the stranger-heir was at last allowed to take the decedent’s interest in the benefices.

A decision of 1683 in an adoption-succession dispute before Dean Albergati rose to a very high level of legal make-believe.^[691] When six months pregnant with Giovanni Battista, Magdalena had married Ottavio, an older widower with a son and a daughter of a prior marriage. After Giovanni Battista had grown to manhood, the Pope had granted his adrogation by Cristoforo da Pomis, who was regarded by some as his natural father. But he was also said to have been the son of Magdalena and Ottavio, conceived some months before their mar­riage, but born during their marriage and thus prima facie legitimate. A great many years later, after Ottavio’s son of his first marriage had taken what was left of Ottavio’s estate after repayment of Magdalena’s dowry, Cristoforo’s brother Gabriele died intestate, and Giovanni Battista claimed as his heir against Gabriele’s surviving sisters. The adverse claimants asserted the invalid­ity of Giovanni Battista’s adrogation by Cristoforo on the ground that he was really Cristoforo’s illegitimate son and thus could not be adopted by him. To refute the anticipated argument that Giovanni Battista was really Ottavio’s son, Gabriele’s sisters relied on the fact that Giovanni Battista had married Ottavio’s grand-daughter, the child of Ottavio’s daughter of his first marriage without a dispensation. After the initial consideration of the case, Dean Albergati had concluded that the adrogation was indeed invalid (because the adrogatee was the bastard of his adrogater), and the adrogatee therefore could not take from the intestate brother of the adrogater. Three years after rendering that decision against Giovanni Battista, the judgment was withdrawn, and, after much soul­searching as to the facts and the law, a new judgment was entered in his favour. It was concluded that Giovanni Battista was clearly a stranger to his adrogater. He was presumed to be so because he had been born during the marriage of Ottavio and Magdalena, and Magdalena had said (not surprisingly) that Giovanni Battista was in fact the son of Ottavio. The further fact that Giovanni Battista had later married Ottavio’s granddaughter did not detract from the conclusion that he was really Ottavio’s son. Though Giovanni Battista would have been presumed to know his blood relatives and therefore could not have married his niece without a dispensation, after thirty-eight years the court indulged the further presumption that a dispensation had been granted. The conclusion was reached by the applications of two, perhaps three, presump­tions.

In an early eighteenth century dispute one who had made an adoption under the authority of what amounted to a military court sought a later adjudication of status by the court of his domicile at Lucca in order to invalidate the adop­tion.^[692] Three years before (in 1708) during the Wars of Spanish Succession, the Luccan patrician Maccarino de Maccarino had been encamped with the French army down the road from Lucca at Castra Coreliae. There, with the consent of the French military judge and commissioner of the French Vicar General, he was allowed to adopt an adolescent girl. Though at first glance one might assume that the maturing patrician had taken the opportunity of the availability of a court unfamiliar with his past to achieve adoption of his illegitimate child, there is no suggestion in the decision to support such a supposition. On its face this appears to have been an instance of adoption of a commoner by a noble who, later disgusted by her behaviour, sought to rid himself of any consequences of the adoption. The court held that the military tribunal lacked jurisdiction to grant the adoption.^[693] The immediate cause of the adopter’s action is not revealed. It could have been his adopted daughter’s claim to a dowry for a mar­riage of which her adoptive father disapproved or any number of other real or imagined affronts.

Though some judicial favouritism may be sensed in some of these cases for one side or the other, the adopted’s right of succession seemed somewhat pre­carious in most of them. In light of much of the evidence that we have, the place of the Italian adopted in the early modern period seemed somewhat less than well assured. Though most of the disputed Italian adoptions of the period were

prompted by objectives of estate-planning, other civil consequences were some­times asserted, as in a decision of 1598.^[694] There the defendant had been the object of an adrogation, before entering into a suretyship agreement. After pay­ing the full amount assured, his co-surety sued the defendant for his share of the loss. Apparently lacking any other ground for defence, the defendant’s counsel asserted that as a result of his client’s adrogation he had become a filiusfamilias and therefore could not be bound by the contract. In response to this argument the court acknowledged that adrogation and adoption gave special standing in matters of succession to feudal lands, the transfer of long-term leases,^[695] and arranging transactions meant to exclude women from inheritances. But the court found the adrogation ineffective as a defence to suretyship. The defendant had relied on a merely fortuitous personal situation of which the plaintiff was completely oblivious. The defendant’s fictive status as an adrogatee was there­fore beside the point at issue.^[696] In another dispute it had later transpired that an adoption was invalid,^[697] and a restitutionary claim was asserted for parental dis­charge of a debt of the adoptee while the adoption was thought to be valid. Over thirty years after the payment, the Luccan Rota concluded that the adoptive father in good faith could recover from the heir of the (un)adopted son despite the lapse of time. The tolerance of delays shown in this and other cases^[698] is rivaled only by the extraordinary patience of the Italian courts in rehearing dis­putes that had already been considered, not merely once but sometimes several times.^[699]

Second thoughts about the wisdom of an adrogation could also be expressed by a less extreme measure than attempting to undo the relationship entirely. In a dispute of 1704^[700] the adrogater had provided the adrogatee a lesser testamen­tary share than the quarter of the adrogater’s property to which the adrogatee was entitled under Roman law.^[701] The court concluded that the adrogatee would take his share under the general rule of entitlement to a quarter of his adro- gater’s estate but the assertion of an inofficious testament was inappropriate.

The printed legal treatises that began to be produced and circulated in signif­icant numbers in the early sixteenth century generally expressed the view that adoption might be used to supplement the feudal rules of succession; but it was not generally accepted that the feudal rules might be put aside for all purposes.^[702] Thus, the technology of printing may have effectively discouraged more drastic departures from the strict feudal concepts of succession. Though the northern Italians sometimes sought to achieve broader objectives, the application of feu­dal principles of succession there, as well as in Spain and France, seemed to resist the use of adoption to circumvent them.

Adoption in early modern Spain

In the early modern period Spanish printed reports of decisions were as rare as Italian ones were numerous. Very few decisions on any subject were published in Spain and none of those few dealt with an adoption dispute.^[703] The Spanish law of adoption was, however, well defined by written law; it may even have had pre-Roman roots.^[704] Alaric’s code of 506 for his Roman subjects alluded to adfiliatio,^[705]6 a remnant of late Roman law.^[706] From the eighth century, there were many instances of perfiliatio for various proprietary purposes among the Visigothic settlers of southern France and northern Spain.^[707] A popular accep­tance of the concept of adoption was perhaps reinforced by the adoptionist heresy that thrived in the Visigothic church at Toledo and at Toulouse in some of that long period. That overheated theological controversy can have scarcely failed to heighten awareness of the notion of bringing strangers into a family whether through Germanic or Roman legal means.

In the later era of romanisation of Spanish law in the mid-thirteenth century, the rules of Roman adoptio were built into the Fuero Real and Las Siete Partidas as well as the Fuero de Soria. In the Partidas, which supplied many basic con­cepts of family law for all of Iberia from the mid-fourteenth century, the rules of adrogatio and adoptio were defined in considerable detail. The basic concept of adrogatio was much like that accepted in contemporary and later Italian usage:⁴⁹ the process could be achieved with the consent of a person sui juris and with the ruler’s authority. Adoptio of a person under parental power could be achieved with the father’s consent with judicial approval. The fatherless minor of seven through fourteen could not be adopted without the intervention of the ruler. But if the adopted individual should die before reaching the age of four­teen, his property would be restored to his heir. The fatherless infant under seven was not contemplated as being subject to adoption. Both the Fuero Real and the Partidas prescribed the rules of Justinian’s Institutes that an adopter had to be at least eighteen years older than the adoptee, male, and capable of pro- creation.⁵⁰

The incidence of either adrogatio or adoptio in the Iberian peninsula cannot even be guessed at on the basis of known evidence until well into the nineteenth century. Neither of the newer collections of laws (the Nueva Recopilacion of 1567 and the Novisima Recopilacion of 1805) contained a reference to adop­tion.⁵¹ For the most part, local fueros were also silent.⁵² As a matter of both rule and practice, legitimation was of far greater concern in the general scheme of succession than adrogation and adoption, but it was provided in Castile in 1505 that legitimation by the sovereign did not provide the right to succeed on intes- tacy.⁵³ From the sixteenth century, it also seems to have been well accepted that those adopted were excluded under the prevailing rules of feudal succession as well as under fideicommissa. All these rules were well defined by Luis de Molina⁵⁴ and by Melchor Pelaez de Mieres ⁵⁵ in their sixteenth-century treatises and by the standard manuals of style from the sixteenth and seventeenth cen­turies. But those manuals never the less contained forms for adoption.⁵⁶ How often an occasion for adoption arose can only be conjectured. It may be inferred, however, that from the sixteenth century the incidence of any sort of adoption was exceedingly small.⁵⁷ The occasional references to adoption in the commen­taries of Juan Gutierrez nonetheless dealt with matters of some practical con­cern, such as the requirement of a dispensation for an adopted person to marry

⁴⁹ Partidas 4.16.8.

⁵⁰ Fuero Real, 4.22.2—3; Partidas 4.16.2; 3.18.91—2 (forms); 4.7.7; Fuero Real, 4.22.5 (legitimation by adoption); Inst. 1.11.4 (adoptor had to be 18 years older than adoptee); ibid. 1.11.10 (a woman could not adopt except when all children had died); ibid. 1.11.7 (one who had been castrated could not adopt), but Nov. Leonis 26—7 allowed both eunuchs and women to adopt. The Fuero Real also allowed legitimation by adoption.

⁵¹ Laws concerning abandoned children and hospices were, however, collected in Nov. Rec. 7.37-8; Recop. 1.6, 1.7, 1.12, 3.16.

⁵² For occasional mention of adoption in local fueros, see Fuero de Supulveda, 61, Fuero de Alcala de Henares, 277, and Fuero de Aragon, 8 (alias f.25).

⁵³ Laws of Toro, 12.

⁵⁴ L de Molina y Morales, De Hispanorum primogenitis (Alcala de Henares,1573) 1. 4.50-1.

⁵⁵ M Pelaez de Mieres, Tractatus majoratuum et meliorationum Hispaniae (Granada, 1575) 1.51.127, 274; 2.2.1. See also J de Simancas, De primogenitis Hispaniae (Salamanca, 1556).

⁵⁶ See, for example, Anonimo Aragones del Siglo XVI, Formulario de Actos Extrajudiciales de la Sublima Arte de la Notaria (M Alonso y Lamban (ed), Madrid, 1968) at no. 4 (affiliacion) p. 57; P Melgarejo Manrique de Lara, Compendio de Contractos publicos (Granada, 1652) at Prohijacion.

⁵⁷ For a brief summary of adoption in early modern Spain, see A Otero Varela, “Sobre la Realidad Historica de la Adopcion”, (1958) 27 Anuario de historia del derecho Espanol 1143. someone within the prohibited degrees of his adoptive family^[708] and the right of a person of common origin to bear the insignia of the military orders when raised in social station by adoption.^[709] Juan del Castillo Sotomayor, however, seems to have suppressed adoptio from his vocabulary in his handling of mat­ters of similar everyday concern. A notion akin to the concept of adoption nev­ertheless showed through occasionally, as when he said that a grandfather might institute as his heir the legitimate son of his adulterous bastard.^[710] The fact that adoption was practised with some frequency in the Spanish provinces of North America, even on the remote frontiers in the late eighteenth and early nineteenth centuries, attests that the institution was still very much alive in Hispanic popular consciousness.^[711]

Adoption in early modern Portugal

Though the kingdom of Portugal was a part of the realm of the Spanish kings from time to time, it appears that, while adoption was possible in Portugal solely through royal grace, it none the less was seemingly not in use. This con­clusion is made reasonably clear by references to adoption by Portuguese writ­ers from the late sixteenth century (when Jorge de Cabedo was writing) until the mid-eighteenth century (when Diego Guerreiro and Pascal Ferreiro commented on the state of the law).^[712] Only Dominico Antunez registered a contrary view, based on personal knowledge of a single instance of Portuguese adoption.^[713]

Adoption in early modern France

Though some practices akin to Roman adoptio had prevailed among the Franks,^[714] the later incidence and consequences of adoption varied significantly from one French province to another. Roger Aubenas and Andre Courtemanche found a few instances of adoption in Provenςal notarial records of the four­teenth century,^[715] but Daniel Smail found no instance in his extensive researches in the early fourteenth century records of nearby Marseilles.^[716] Provenςal records of the fifteenth and sixteenth centuries revealed a few more examples of adop­tion, but no resulting dispute came to light. Of the nine notarial documents quoted by Aubenas,^[717] five involved the adoption of infants and young children (donationes filii) and four were adoptions of adults (receptiones in filium). In only one instance of each kind was there a judicial ratification of the contract.^[718] The obligations undertaken by the parties were very varied but tended to be more protective of the adoptee when he or she was of tender years. From these documents it seems that adopters were generally more anxious to take the risks of adopting an infant than those that might follow from an adrogation. In two of the instances of adoption of adults the bargains favoured the adopters with respect to property. An early fifteenth-century agreement of the latter type pro­vided that the adrogatee would work the land of the adopting couple. But if he should not be able to do so, he would work elsewhere and keep an account of his acquisitions, which he would communicate to the adopters and deliver to his adoptive mother.^[719] For their part, the adrogaters undertook to arrange the adro- gatee’s marriage, but the dowry of the wife of the adrogatee would be held in common and the two couples would live together. Several clauses dealt with the management of the common property, which would be disposed of by mutual consent. If there were disagreements between the couples, however, the adro- gated son agreed to leave, but he would be entitled to take some of the common property with him. This contract with an adult contrasts sharply with one from Tarasςon of 1459.^[720] Under it, a mother, who was unable to provide for her two- months-old son, gave him to the adopter, who obliged himself to treat the boy as his own and obligated his land as security for his promise. In a further simi­lar contract of the early sixteenth century,^[721] it was agreed that the adopted infant boy would take the name of the adopter but would retain his right of inheritance from his biological father who would maintain the patria potestas over him for that purpose. The most unusual of all these agreements was the adrogation of a priest by an elderly man without children at Barjols in 1538. While retaining a usufruct, the adrogater transferred all his property to the adrogatee, who, in turn, obligated himself to care for his adoptive father in case the income from the usufruct was insufficient for his needs.^[722]

In Breil on the south-eastern French border and further east in Savoy^[723] local customs redacted in the late sixteenth century suggest that a more Roman-style adoption had survived or had been revived in the early modern era. The Custom of Aosta in Savoy^[724] has the most extensively Roman provisions of any later cod­ification of adoption apart from the much earlier Partidas.^[725]

Both Franςois Marc and Nicolas Bohier indicated that some sort of adoption was practised in Dauphine in the early sixteenth century,^[726] but neither its con­sequence nor its formality was indicated. Prompted by the handbook of Jean Masuer, a number of French writers expressed a very negative view of the effi­cacy of adoption to alter succession in France.^[727] Eguinaire Baron, however, thought that the use of adoption was limited to those few French provinces where Roman adoption or practices resembling it were specifically provided in local customs.^[728] In France the kind of adoption commonly referred to in the coutumes was affiliation by which another’s child was made one’s successor to property. Should this right have been bestowed unilaterally, it did not exclude the rights of escheat of the predecessor’s lord; on the other hand, if the arrange­ment were made bilaterally (as in the case of a marriage contract extending the benefit to prior children of both husband and wife),^[729] the lord’s right was excluded.^[730]

The negative view toward the effects of adoption in France either referred only to the Roman type of adoption or was greatly overstated. Denis Le Brun’s mid-eighteenth century analysis of French practice and his comparison of it with Roman institutions provided a more coherent and better supported account.^[731] He identified two French sources of adoption (Roman law and French tradi­tion), though the incidence of Roman adoption was probably very small. Le Brun discussed the evolution of Roman adoption and adrogation as French sim­ple adoption, a usage resembling the Roman type but without Roman formal­ity. His second category included adoptions made on contractual condition (such as of care of the adopter in his old age, reciprocal adoption of a widow and widower who undertook to adopt the children of the other on their marriage (subroge par echange),^[732] and reciprocal provisions of a double marriage when a brother and sister of one family married a sister and brother of another family) and adoption accompanied with an inter vivos gift or enhanced by a testamen­tary provision for the adoptee. In a group of provinces that extended as a sort of latitudinal belt across south-central France, contractual or reciprocal adoptions were recognized by local custom, with rights of succession as a consequence, in Burgundy,^[733] Bourbonnais,^[734] Berry,^[735] Nivernois,^[736] and Saintonge.^[737] Elsewhere in France the rights of adoptees were derived solely from contractual terms, inter vivos donations, and testamentary provisions. Two famous late sixteenth cen­tury succession disputes involved claims related to adoptions and such accom­panying provisions. In his short treatise on escheat Jean Bacquet^[738] recounted the bare facts of the first of these disputes, also noted by Jean Papon,^[739] and much more fully traced by Kristin Gager.^[740] A naturalized foreigner (of unidentified origin) had settled in Touraine and had adopted a French son. On the death of the father his estate passed to his son by will and then to the son’s widow on her husband’s death soon afterward. Some time later royal authorities sought to seize most of the inheritance as an escheat to the crown. The outcome of the lit­igation that followed, however, did not turn on the validity of the adoption but on the effect of the adopter’s testamentary provisions for his adopted son. Although the adoption (standing alone) was deemed ineffective for the purpose of succession under local law, the Parlement of Paris concluded in 1576 that the father’s estate nevertheless passed to the son under the will and then passed on to his widow on the son’s death.

The stakes were much higher in the dispute concerning succession to the mar- quisate of Allegre,^[741] which was resolved twelve years later. The marquis, Ives III, was held captive by Casimir, Count Palatine and Duke of Bavaria. To secure his freedom Ives adopted his nephew and ward (also Ives, the son of a deceased younger brother) and sent him to take his place as the duke’s prisoner. The adoption was achieved by a notarial act that also apparently included substan­tial inter vivos donations and the right of succession to the marquisate. After the adopted son took his father’s place, the marquis was murdered on his way home, and his younger brother appropriated the marquisate and its estates but also died about three years later. After the younger Ives was ransomed, he returned to contest the rights of his intruding uncle’s son to the marquisate. In 1588 the Grand Council decided the dispute in favour of the adopted son by virtue of the inter vivos gifts, as the adoption was ineffective for succession pur­pose under local customary law.

Further actual instances of French adoption have only recently begun to be discovered. Olivier-Martin noted four Parisian instances of the late fifteenth and mid-sixteenth centuries,^[742] and Planiol found one adoption in fifteenth century Brittany.^[743] Paul Gonnet’s history of the charity hospital of Lyon founded in the sixteenth century shows that it arranged a number of adoptions of children,^[744] but the practice was apparently discontinued in the seventeenth century, just as Provenςal contractual adoption seems to have waned not long before. Jean- Pierre Gutton’s general study^[745] and the work of Kristin Gager that focuses par­ticularly on adoption in Paris^[746] revealed many more instances. Though Jean Masuer’s denial of the French practice of adoption probably referred only to the absence of Roman adoptio, as the statement was repeated it seemed to encom­pass all adoptive usages except, as Equinaire Baron noted, in those provinces that specifically maintained the institution among their recorded customs.^[747] French writers’ general denial of the practice of adoption, however, constituted a fulfilment of legal propriety for the course of feudal succession, and after 1600 the pronouncement of Masuer became very widely accepted. On the other hand, in his dispassionate, apolitical way Jacques Cujas was as non-committal as the Portuguese writers in saying that adoption (presumably meaning formal Roman adoption) was possible but not in use in France.^[748] Both Rene Choppin and Charles du Dumoulin commented at very much greater length on Roman and French instances of adoption but neither indicated that there was any significant current practice to describe.^[749]

Despite the suggestion of some writers of a useful, limited employment of adoption as an estate-planning or conveyancing device, most sixteenth-century commentators emphasized that the law allowed few means of providing for adopted children.^[750] Thus, such writers not only acknowledged the rare practice of formal adoption but also warned against its pitfalls and thereby discouraged its use. Curiously Brissaud thought that the waning of adoption in French cul­ture resulted from the family’s “disintegration”.^[751] Adoption was thus thought to have degenerated into mere fostering, becoming a simple matter of personal choice and not a controlled institution with legal consequences, apart from those that an inter vivos donation or a testament could provide. Nor (in Brissaud’s view) did the king’s approval of adult adoption have any other effect than to confirm an adrogatee’s donative or testamentary rights.^[752] Olivier Martin,^[753] on the other hand, explained that the decline in adoption was a consequence of the medieval state of mind that all family concepts rested on marriage, and adoption was thus ousted from use. As an observer of the six­teenth-century scene the lexicographer Duprat merely noted that the formality of adoption (solemnitas adoptionis) was no longer practised.^[754]

In the sixteenth century, a stricter attitude had set in toward policing the sta­tus of the progeny of extra-marital unions, but a sustained anti-adoption atti­tude on the part of the Church was not otherwise apparent concerning the practice. At its synod in Paris in 1557, the French Church made it plain that adopted children were subject to the same rules as legitimate children with respect to the prohibited degrees of consanguinity in relation to marriage.^[755] Nothing, however, was said of the rights of inheritance to or through adopted children, and no comment on those matters would have been appropriate. Nor is it clear whether the reference to adoption was to Roman-style practice or to the Germanic unio prolium or to some sort of less formal adoption. A great many Germanic people, as well as Celts, may have held a strong predilection to inheritance by blood (unexpressed in written sources) that tended to reject the concept of any sort of adoption. A contrary inclination was satisfied, as Boutaric said later, by another solution somewhat short of adoption: the name-and-arms bequest.^[756] These had flourished on the continent for some time and had passed across the English Channel by the early eighteenth century.^[757] In France, how­ever, such a change of name required the further formality of a royal patent and the payment of a transfer tax.^[758]

Adoption in the Low Countries in the early modern period

The situation in the Low Countries seems to have been only slightly different from that in northern France in that adoptions were perhaps somewhat rarer.^[759] In the mid-eighteenth century Georges de Ghewiet said that the practice in the region amounted only to fostering with no legal consequences.^[760] He went on to note that adoption customs of Lille and Audenarde were notable in actual dis­avowal of the institution of adoption.^[761] A century earlier, however, Pieter Stockmans, as Chancellor of Brabant, had approved an adoption and pointedly questioned the conclusions of both Groenewegen and Guedelin on the unavail­ability of adoption in the Low Countries.^[762] Johannes Voet, however, was almost as categorical in his comments on the absence of effective adoption there,^[763] though he noted Stockmans’ reservations on the point,^[764] as well as a comment of Ulrik Huber on adoption in Friesland.^[765] Huber had related a con­temporary instance (1651) of an adoption of a nephew by an uncle, both of whom were counsellors of the court of Friesland. In the practice there, as described by Huber, both Roman adrogatio and adoptio prevailed, and both were achieved by judicial proceedings.^[766]

Adoption in German lands in the early modern period

The view was commonly expressed by German scholars of the seventeenth and eighteenth centuries, as well as by modern writers, that neither Roman adoptio nor adrogatio was received in Germany. But if that is so, it is readily apparent that over a long period much Roman terminology and method had been engrafted onto Germanic adoption practice. In the latter half of the seventeenth century, Samuel Stryk, his pupils, and other scholars undertook to summarize the doctrine of adoption and to comment on its incidence in Germany. They enumerated seven instances of adoption by authority of counts palatine between 1510 and 1642,^[767] some seventeenth-century examples of adrogation in Saxony and elsewhere,^[768] instances of adoption from the Rhine Palatinate, Hanover, and Bremen,^[769] and some adoptions for purposes of princely succession.^[770] Stryk nevertheless concluded that recourse to the institution was generally rare,^[771] and he judged that the Germanic practice of mutual adoption by a hus­band and wife of children of their prior marriages was rarer still.^[772] Heinrich Berger, in an opinion to an inquiring couple who sought advice concerning the latter practice, nevertheless, observed that the institution was presumed to be in effect in all German lands.^[773]

Decisions of German courts and opinions of prominent professors illustrate local practices and the nature of disputes arising from them. As in the situations explored in Italian adoption litigation, German disputes illustrate much broader implications of adoption practice than may be suggested by mere adoption agreements, and in one reported instance (as in Italy) an adoptee sought unsuc­cessfully to use his adopted status as a defence to a creditor’s suit on a debt.^[774] Two opinions of the Tubingen law faculty (sitting judicially) arose from the same dispute concerning an adopted daughter’s rights of succession.^[775] The daughter was born out of wedlock, and her mother later married a man who agreed in writing to adrogate her child, and he thereafter did so with the proper formalities. After the mother’s death the father remarried, and his new wife bore him a son. Thereafter the adoptive father ceased to treat the daughter as his own, and withheld the estate of her mother and her maternal grandmother from her as though he alone was entitled to it. The court of scholars concluded that the adoption of the daughter was valid, that she was entitled to succeed from her mother and her grandmother’s estate, but only after her father’s death.^[776]

Two other decisions dealt with the process of adoption: who could be adopted and how an adoption was properly executed. In about 1700 Nicolaus von Lyncker of Jena rendered an opinion concerning a married woman’s adro­gation of her husband’s adulterine bastard daughter.^[777] In 1688, when both the husband and his wife adrogated the minor girl, the couple’s only child had died in infancy and the wife was apparently in failing health. Prior to her death, which occurred not long afterward, the woman made a will in which she left her entire estate to the girl to the exclusion of her only near relative, a brother who had gone off to war some time earlier. Some years later the brother returned and brought suit to set aside the adrogation and the will and to require the adoptive daughter to account for and to relinquish her testamentary inheritance. Lyncker’s opinion was that the law precluded the adrogation of the minor child conceived in adultery (or any minor for that matter), and that the will was invalid in furtherance of that purpose.^[778] The adoptee was ordered to account for the property she had received and to surrender it to the adrogater’s brother.

At about the same time, a dispute involving an alleged adoption arose in Pfauhausen, a Saxon village without any known special rules of intestate suc­cession (as the opinion noted).^[779] The testator, who had died in 1693, was a member of the minor gentry and proprietor of a royal estate. His will gave his widow the enjoyment of the estate for life with remainder to his maternal half­brother and his children and his paternal half-brother’s son whom the testator had attempted to adrogate. After the testator’s death his widow had remarried and had made a will purporting to bequeath the estate to her second husband. On her death the remaindermen under the will of the prior husband claimed their maternal kinsman’s entire estate and contested the validity of the adroga­tion to the paternal nephew who had since died. The claimants succeeded, and the adrogation was declared invalid because it had lacked princely consent. The adrogation had been merely executed in writing with two witnesses.^[780] The dean of the Tubingen law faculty (sitting judicially) rendered the opinion on behalf of the entire faculty in 1705. Even a law faculty could not find grounds for disagreement on such facts, though those facts were apparently sparsely and carefully stated to avoid dissent.

In two further instances of uniones prolium Georg Frideric Harpprecht gave advice to disputing clients. In an opinion of 1736 Harpprecht examined the effect of arrangements cemented by two agreements of 1703 and 1729. Just before their marriage in 1703 the husband and wife agreed in writing to treat all their children equally. At the time the husband had three children of a prior mar­riage and during their marriage the couple had a son. In 1729 the wife gave her husband full control of all of her property, reiterating the condition that all the children would take equally. Sometime later the wife made a will leaving her entire estate to their son. The husband died first, and the wife died shortly afterward. The two agreements clearly controlled the succession to all of the children, quite apart from the implications of undue influence that surrounded the making of the will.^[781]

In an opinion of 1730^[782] Harpprecht dealt with a husband’s post-mortem wishes that might be classified with those of Peter Thellusson. Prior to their marriage in 1666 a man and a woman entered into an agreement that on the fifti­eth anniversary of the husband’s death each of his surviving descendants would receive thirty gold guilders. At the time of the marriage the husband had five children and his new wife bore him an additional son. The husband died about 1680 but his widow survived until 1720 when their only son took possession of all their properties. On behalf of the other claimants Harpprecht concluded that the sixteen survivors were then entitled to thirty guilders each and the youngest son would take the residue.

Lyncker rendered a judicial opinion concerning a proposed interfamilial adoption in 1677.^[783] A master cobbler of Weimar sought to adopt his nephew, the son of his sister and another master cobbler then deceased. At the time there was a vacant place in the cobblers’ guild and there would be another place when the potential adopter chose to give up his seat. A provision of the guild’s rules stated that only the son of a cobbler could take such a vacancy and further pro­vided that one man could not occupy more than one seat. The would-be adopter evidently hoped that his adopted nephew could ultimately fill his place as well as that of his father. Lyncker concluded that an adoption for such a purpose could not be carried out; the language of the guild’s rule was decisive.

Continental adoption at the end of the early modern period

Thus, in the mid-eighteenth century adoption was still subject to some use in both Germany and Italy, but with the possible exception of Spain it seems to have been rarely used elsewhere. Calisse (like Pitzorno) concluded that, in most of northern Italy Lombard adoptive practices had replaced those of the Romans, but at the same time the rules of both traditions had tended to blend.^[784] In Calisse’s view, had there been a tendency in Italy for the merged concept of adoption to fall into disuse once adoption ceased to be a significant instrument of succession. It was therefore relegated to the position of a mere accessory of succession with some utility for drafting and conveyancing. With its waning use, two separate, but not well defined, institutions of adoption survived. The first was a formal practice, which served mainly as a supplementary succession-plan­ning device.^[785] The second was an informal practice for personal gratification, which might be supplemented with proprietary benefits for the adopted indi­vidual as far as the law of succession allowed.^[786] As the decisions in Italian liti­gation concerning adoption from the sixteenth into the eighteenth century made evident, not only the rules of feudal succession but also those of legitim were serious barriers to the effective use of adoption for the purposes of succession.

For the decline of French adoption Brissaud offered a less satisfactory expla­nation.^[787] He explained it as a consequence, perhaps, of urbanization and social dislocation of the sixteenth century. Underlying Brissaud’s conclusion was an assumption that formal Roman adoption had been displaced in French regions by Germanic adoption practices embellished here and there with some Roman standards. Brissaud nonetheless noted that adoption was maintained among the French nobility, and the institution was thus tainted in the minds of later French republicans.^[788] German historians have insisted on the survival there of a purer Germanic strain of adoption than found elsewhere.^[789] Roman rules, however, had adhered to German adoption in a very significant degree so that the institu­tion of adoption in Germany came into the nineteenth century as a fused Germano-Roman system. The evidence also suggests that adoption practices may have been more widely used in Germany during the eighteenth century than in France or Italy.

Thirty years ago Jack Goody speculated that the “remarkably abrupt” disap­pearance of Roman adoption in Western Europe in the fifth century was the consequence of the teachings of the Roman Church against adoption. The Church, he surmised, sought to assure that the property of childless couples would pass to the Church for charitable purposes rather than to adopted chil­dren.^[790] Apart from some writings of Salvian of Marseilles in the fifth century, however, during the following millennium the Church does not seem to have opposed the use of civil adoption with any vigour except for its use as a cure for illegitimacy.^[791] Whether the institution of adoption suffered more during suc­ceeding centuries than other Roman institutions after the fifth century can only be conjectured. By early modern times, the Papal hierarchy was as much (if not more) involved in granting and enforcing well-defined instances of adoption as the administrators of other states in Western Europe. In his review of Pitzorno’s book, Schupfer also pointedly took the author to task for his failure to mention sacred rites of adoption derived from Byzantine practice at Ferrara and went on to describe that ritual.^[792] Goody’s view seems unsupported by any other legal writer except Franςois Boutaric of Toulouse who remarked in the mid­eighteenth century that adoption was “unchristian”.^[793] What Boutaric may have meant by “unchristian” is not clear. In a subsequent passage he said that it was unchristian for a parent to give up his child for adoption.^[794] But his initial characterization may have stemmed from a fundamental misconception. Imbued as he was with the lore of Toulouse, Boutaric may have mistaken the Church’s views on the heresy of adoptionism for a canonical rejection of adoption as a social evil. But Michael Sheehan,^[795] Lloyd Bonfield,^[796] and James Brundage^[797] have amply demonstrated that the concept of adoption continued to function in various parts of Western Europe as a social institution to which the Church was not generally opposed. It is very doubtful, however, whether it would be accu­rate to say that Roman law rather than Germanic custom was the principal impetus to, or ingredient of, the survival of adoption.^[798] By the eighteenth cen­tury, the practice of formal adoption of the Roman sort was certainly very slight in some regions and elsewhere very much rarer, if existent at all. The real foe and virtual victor over adoption was not the Church. Much of the lack of enthu­siasm for adoption derived from feudal land law and the opposition to adoption on the part of large landholders and their lawyers. The hostility of the Church in the Counter-Reformation to the use of adoption to achieve legitimation nevertheless supported the feudal tradition. The widely accepted concept that feudal lands could not pass to adopted children made adoption generally impracticable for the purpose of succession to land. Thus, in Western Europe during the seventeenth and eighteenth centuries, the use of adoption may have subsisted mainly in instances of princely succession and inheritance in relation to non-feudal lands and moveables. It also survived in areas where written cus­tom, as in France, or renewed usage, as in Germany and northern Italy, specifi­cally preserved the doctrine.

It is not clear how abandoned children fitted into the Western European scheme of adoption, if indeed they were any significant part of it.^[799] John Boswell guessed that some abandoned children were formally adopted by the upper classes or informally taken in by the poor, because he found evidence of such adoptions in documents and formulae of the eighth and ninth centuries.^[800] From what we know from later codes, however, it may be surmised that aban­doned children were usually taken in merely as foster children for whom a cer­tain amount of regulation was provided.^[801] Boswell also noted that the Church’s eventual efforts in the thirteenth and fourteenth centuries to care for abandoned children in hospices sometimes resulted in very high death rates.^[802] The practice of abandonment nonetheless continued unabated.^[803] The availability of such repositories for unwanted children, the adherence of many of those to holy orders, and early apprenticeship for a great variety of trades almost certainly decreased the number of children that otherwise might have been made avail­able for adoption.

It evidently occurred to some who endowed shelters for abandoned children to provide for the adoption of those children who were abandoned there. Prospero Lambertini (later Benedict XIV) eventually made such provision for those at the Hospice of the Holy Spirit in Sassia at Rome in 1749.^[804] But such provisions do not seem to have been ordinarily made. A dispute in the Papal court in 1757 dealt with an adoption from that hospice long before its rules had been revised. Eschewing marriage—“Abhorrens a nuptiis” in the words of the court—a Vatican musician, arranged with the hospice to take a boy of fifteen as his son in 1703. A written agreement concerning succession was made between the hospice and the adopter who afterwards assured his adopted son that he would succeed to the exclusion of the adopter’s intestate successor, Pietro Oliveri. A dispute between the adoptee and Oliveri came before the Papal Rota fifty-six years later. Both the judge of first instance and the Rota applied the law very strictly. A judicial adoption had clearly not been carried out and at the time arrangements were made between the adopter and the hospice, the latter lacked the power to act as a parent in handing over a child for adoption. Nor had the sovereign (the Holy Father himself in that instance) authorized an adroga­tion.¹⁵⁵ By the latter part of the eighteenth century more institutions for aban­doned children and orphans had acquired the parental power to relinquish a child for adoption.¹⁵⁶ Whether such institutional adoptions would have carried with them the right of succession from the adopter would have depended on meeting local civil prerequisites. It nevertheless appears that toward the late eighteenth century, the old adoption of Western Europe subsisted mainly in abstract doctrine, but little in practice except as an occasional legal ruse.

The situation in England and Scotland

There is no evidence of any practice of Roman adoption in England, and of any Germanic tradition the evidence is limited to manorial usage. In that all English lands were held (at least theoretically) mediately or immediately of the Crown, a fully feudal state subsisted that made no place for adoption as a means of suc­cession to freehold lands. Some manorial records of the fourteenth and fifteenth centuries, however, indicate that a contractual practice resembling adoption prevailed in some places.¹⁵⁷ By this means a childless peasant could agree to make another his heir in return for care in old age.¹⁵⁸ The striking similarity of this manorial usage to that of the Franks described by Brissaud very strongly suggests a survival of old Germanic custom.¹⁵⁹ But such maintenance contracts do not seem to have been widely used, and English law generally rejected the concepts of both adoption and legitimation. Unlike continental states where the principle of Iegitimatio per matrimonium subsequens prevailed, England knew no such rule: the baronage had rejected that ameliorating doctrine as early as the Parliament of Merton in 1235,¹⁶⁰ and a proposal to allow adoption was evi­dently never broached. There had nevertheless been a few parliamentary legiti­mations in the fourteenth, fifteenth, and sixteenth centuries for the purpose of

¹⁵⁵ Constantini, supra n.154, vol. 3, 275.

¹⁵⁶ At least three French institutions could have exercised that power. See J-B Denisart, Collection de decisions nouvelles (A.-G. Camus and J.-B. Bayard (eds), cont'd by L.Callenge, Paris, 1783-1805) vol. 10, 383, s.v. “adoption”. See also Gonnet, supra n.94 at 45-59.

¹⁵⁷ An early reference to adoption is made in Leges Henrici Primi 80.13 (c.1118), for whatever that may suggest.

¹⁵⁸ See C Howell, Land, Family and Inheritance in Transition: Kibworth Harcourt 1280—1700 (Cambridge, 1983) 243-4, 247-8, 253; idem, “Peasant Inheritance Customs in the Midlands, 1280-1700”, in Goody, Thirsk, and Thompson (eds), supra n.43, at 122, 125, 128-30, 138.

¹⁵⁹ See Brissaud, supra n.101, § 177 at p. 217. See also text supra at n.72, Aubenas, supra n.65, no. 9 at 725-6, and Boswell, supra n.33, referring to a formula from Tours. See also F W Maitland, The Year Books of Edward II (London, 1888) vol. 2, 186-7 (1308-1309).

¹⁶⁰ See 20 Hen. 3, ch. 9 (1235); E Coke, The First Part of the Institutes of the Laws ofEngland (3rd edn, London, 1633) 96-8. See also F Pollock and F W Maitland, The History of English Law Before the Time of Edward I, (2nd edn, Cambridge, 1898) vol. 2, 397-8. succession among the nobility and gentry.^[805] But by the seventeenth century both legitimation and adoption were unknown in England.^[806]

In England a great change had occurred in 1540, culminating in 1660. Both adult men and women (if unmarried) were allowed free testamentary disposi­tion of all unentailed lands, except as to the dower right of married women.^[807] Some writers later pointed out that neither legitimation nor adoption was there­fore needed in England, because of the broad extent of testamentary power prevailing there.^[808] As a result of such extensive testamentary power, “testa­mentary adoptions”, which were available on the continent in various limited ways, were fully available in England, as were parliamentary property settle­ments in favour of sons-in-law that also produced some results that resembled those of adoption. But the term “adoption” was not used to describe those rela­tionships and they were not ordinarily thought of as such,^[809] though the rela­tionship of foster children to their benefactors were sometimes referred to as “adoption” in English popular parlance.

THE REVIVAL OF ADOPTION

On the continent, however, the course of adoption took a curious turn that at once gave the old concept of adoption new life and at the same time retarded its future development for over a century in significantly large areas of the world. In the codes of Denmark (1680), Bavaria (1756), and Prussia (completed after almost half-a-century’s preparation in 1794) very limited provisions were made for adoption of a child by a childless person of substantial age. Then, in a spon­taneous outburst of sentimentality, in 1793 the revolutionary French assembly declared an orphaned child of a patriot the adopted daughter of the Republic, and other such instances followed.^[810] A decree in late 1794 gave the concept of adoption further revolutionary acceptance. At the time, this act evidently seemed appropriate in defiance of prevailing custom in most of France, but it was also contrary to the revolutionary attitude toward adoption as an artificial and outworn tool of aristocracy, properly excluded from a republican society. Without Bonaparte’s subsequent exertions, the principle of adoption would not have been included in the French Civil Code.^[811] Even so, the provision enacted in 1804 only allowed adoption of mature adults for whom the adopter (of at least fifty years of age and without a legitimate descendant) had rendered sup­port for at least six years during minority, and the adopter was required to be older than the adoptee by at least fifteen years, with an exception made for someone who had saved the adopter’s life.^[812] The Austrian Code (independently formulated in 1810) included similar limitations. These formulations were very narrow versions of the old adoption. Many of those who drafted codes for other states followed the French pattern (or a variant of it) or omitted a provision for adoption altogether.^[813] Where the former approach prevailed, as in Vaud (1819), the Two Sicilies (1819), Sardinia (1837), and Romania (1864), the stric­tures of adoption tended to make its use impracticable. In its Italian (1865) and Spanish (1889) versions those strictures were somewhat relaxed, but the system was not adjustable to any purpose except succession for which it was designed.

Beyond the Atlantic Ocean, however, a different sort of adoption had begun to emerge. By the third decade of the nineteenth century, American law had grown to near adulthood but without a well defined law of persons, and a new adoption was one of the institutions that would be part of the system maturing there. The new sort of adoption had other objectives than succession: to provide for the care of necessitous children and to gratify the parental desires of child­less couples. Johannes Voet, however, had partially anticipated this develop­ment in expressing his conceptions of adoption among the ancient Roman: “To meet the cases both of sterility and frequent deaths in a family, and to enable those who lacked natural children to find a kind of stay and comfort in adoptive children”.^[814]

During the four decades prior to the American Civil War, rules of status had become somewhat better defined. Three types of private legislation were then in use to cement the parent-child relationship: acts for name-change, legitimation, and adoption. The earliest American statute to achieve a change (or partial change) in parental status was a Delaware name-change Act of 1784 made for the purpose of complying with a name-and-arms clause in an English will.^[815] After 1800, legislative changes of the surnames of children began to be enacted in many states for various purposes. But neither the entire nor specific purpose of a particular private act was always apparent from the facts disclosed, and some acts referred to adoption when legitimation was clearly meant to be achieved.

Contrary to the prevailing English law on which the law of American states was commonly modelled, a number of states had followed Virginia’s continen­tally inspired statute of 1785 by which subsequent marriage of parents legiti­mated their pre-marital offspring.^[816] There was, however, no consistent pattern of legislation from state to state affecting the status of children. Initially, private acts for name-change ordinarily served three purposes: the change of name of children born out of wedlock but legitimated by operation of law on the mar­riage of their parents, legitimation itself when general rules of law did not have that effect, and adoption of foster children. As time went on, private statutes for change of name tended to give way to private statutes for legitimation, and in the 1820s private adoption acts began to appear with some regularity. Adoption thus became easily and cheaply available in most of the USA by private legisla­tive acts. Although private adoption Acts were sometimes specifically used for the purpose of legitimation, during the 1830s and 1840s the object of legitima­tion and adoption Acts became more specifically defined and thus differentiated.

Though particular legislators may have found it easy to pass private Acts for their constituents, the burden of time devoted to a series of these Acts evidently began to be felt by some legislative bodies. They were therefore prompted to authorize other means of legitimation and adoption as well as for making name­changes. The first Act providing for a judicial process to achieve all these objec­tives was passed in Mississippi in 1846.^[817] This was followed in 1850 in the neighbouring states of Texas^[818] and Alabama^[819] by acts allowing recording of a written acknowledgment of adoption. At the other end of the country a far more sophisticated Act, prompted by the needs of a foundling home, was enacted in Massachusetts in 1851.^[820] Vermont enacted a similar statute in 1853.^[821] In each of these instances a series of private Acts preceded the general Act. Other states followed these patterns or variations of them in effecting adoption, but the enactment of private bills for the purposes of legitimation and adoption did not cease until well after the American Civil War, even where a general non­legislative means had been provided.

As long as adoptions by private bill were achieved (that is, until the movement for constitutional abolition of private bills overtook them), such legislation was evidently very easy to enact. In some states these Acts were numerous. In others they were sparse. In three states of relatively small population, but at opposite ends of the country (Rhode Island and Vermont in the north-east and Mississippi in the south-east), the number of Acts seems very large in relation to the size of the population. But in some of the large and more populous states, where the press of legislative time for matters of general concern may have dis­couraged private bills, there were few, if any, legislative adoptions.^[822] New York passed only ten private adoption Acts between 1817 and the early 1860s and, until an Act for judicial adoption was passed there in 1873, there was no other way to achieve an adoption apart from a fictitious apprenticeship, which was unsure and therefore hazardous.^[823] Virginia did not enact a statute to pro­vide for judicial adoption until 1892^[824] and had no prior history of legislative adoption.

By the mid-twentieth century, a judicial Act had become the standard mode of achieving fictive parenthood in the USA, though a number of states had ini­tially chosen other alternatives to legislative adoption. Many had achieved adoption by recording a formal acknowledgment without any judicial inquiry into the matter.^[825] In Pennsylvania, where judicial adoption was instituted in 1855,^[826] a later Act of 1877 maintained what was referred to as the “common law” process of adoption by a recorded deed poll. This and other statutory ref­erences to adoption by a private instrument executed with the formalities of a deed suggest that such a practice may have been used earlier in other states in lieu of legislative adoption.

The course of legal development in Louisiana was idiosyncratic. Although the French Civil Code was used as a model for the codification of Spanish law in effect there in 1808,^[827] the republican ideology of the draftsmen produced a prohibition of adoption and a limitation of legitimation to cases of subsequent marriage of the parents.^{[828] [829] [830] [831] The prohibition of adoption was repeated in the Civil Code of 1825,185 but the reinstitution of legitimation (by notarial act) in 1831186 seems to have contributed to the reemergence of adoption, at first only by private legislation. The first such act was passed in 1836 and the twenty-first was enacted in 1860.187 A constitutional prohibition of private legislative Acts in 1864 prompted a short-lived provision for judicial adoption, which was replaced with adoption by notarial act in 1872.[832] Thus, private adoption replaced legislative and judicial adoption in Louisiana, a process similar to that of adoption by a publicly recorded acknowledgment but somewhat more pri­vate. In Louisiana, as well as some other states where the legislative device was succeeded by other than judicial means, judicial adoption as a permanent insti­tution was not provided until well into the twentieth century.[833]}

During the latter half of the nineteenth century, large numbers of orphaned and abandoned children from the north-eastern cities of the USA were sent to new homes further West. That number reached its height in 1875 when over 4,000 children were sent by railroad from New York to the Midwest.^[834] As in the earlier situation of abandoned European children, however, most of the transported American children were not adopted but were merely given refuge and care and were put to work in a far more wholesome environment.

SPREAD OF THE NEW ADOPTION

In England and on the European continent the new adoption was slow in arriv­ing and was not really in place until the mid-twentieth century. The new adop­tion came to France following the First World War, and was achieved by a series of Acts passed in 1923, 1939, 1958, and 1966. In seeming consonance with English speakers across the Atlantic and in New Zealand and Australia,¹⁹¹ England moved toward the new adoption, but initial Acts of 1926 and 1930 merely provided a special form of guardianship to provide for the support and education of minors without any right of succession.¹⁹² Adoption that produced a full parent-child relationship was not provided until 1949.¹⁹³ No provision was made for adoption of adults, as it is not in about half of the USA. After the Second World War other continental countries renovated their laws. Reform came in Germany in 1950, in the Netherlands in 1956, in Spain in 1958 and 1970, in Portugal in 1966, in Italy in 1967, and in Belgium in 1969.

The sorts of judicial disputes that had been generated by the old adoption on the continent were predominantly proprietary. Since the mid-twentieth century, the new adoption in the USA has tended to provoke a different sort of dispute focusing on parental rights. These disputes have arisen largely because of demand for infants to adopt and the failure of many American states to adjust their formal requirements for adoption to take account of the extreme con­sciousness of personal rights that has become a hallmark of American constitu­tional law. Following the old English legal tradition, an American child born out of wedlock in the early nineteenth century was sometimes regarded as the child of no one in regard to rights of succession. Such a child later came to be consid­ered as merely the child of the mother, but not of the father, except with respect to his duty of support. Consequently, many American states treated the mother’s abdication of her parental rights as a sufficient basis for adoption of her illegitimate child. Other states regarded a judicial conclusion that the child had become dependent on public support or neglected by its parents as sufficient to make the child available for adoption by another. Such a finding might even have been made without notice to either parent, so that an appropriate response concerning the child’s alleged condition was not heard. This casual disregard of parental rights, particularly those of unwed fathers, led to a broad reform of the law of adoption as well as that of illegitimate children.¹⁹⁴

There have been some instances when there have been strong suspicions that hope of a financial settlement has been the sole motivation of a complaint of dis­regard of parental rights. These circumstances have typically arisen when a bio­logical but unmarried parent (usually the father) was not consulted before the other (usually the mother) relinquished their child for adoption. Such suspicions of lack of good faith on the part of a complaining father who failed to assist the

¹⁹¹ New Brunswick had followed the American example of instituting judicial adoption in 1873, but other Canadian provinces did not follow that course until after 1920. Occasional appellate liti­gation concerning the relinquishment of children to relatives and others as foster parents suggests some prior practice of informal adoption. See In re Quai Shing, 6 BCR 86 (1897), aff’d, ibid. 599 (Can Sup Ct 1897); In re Clarke, 31 DLR 271 (Ont 1916). New Zealand had enacted the Adoption of Children Act of 1881 and an Act for Western Australia followed in 1896.

¹⁹² Adoption of Children Act 1926, 16 and 17 Geo. 5, ch. 29. Similar provisions were made for Scotland in the Adoption of Children (Scotland) Act (1930), 20 and 21 Geo 5, ch. 37.

¹⁹³ Adoption of Children Act 1949, 12, 13 and 14 Geo. 6, ch. 98.

¹⁹⁴ See Stanley v. Illinois, 405 U.S. 645 (1972). cf. M Boccaccini and E Willemsen, “Contested Adoption and the Liberty Interest of the Child”, (1998) 10 St. Thomas Law Review 211. mother during her pregnancy and showed no interest in providing for the child prior to its adoption prompted the New York legislature to a particularly severe response. It enacted a requirement that, in order to receive notice of another’s effort to adopt the child and to object effectively to an unwed mother’s relin­quishing her child for adoption, the complaining father must have made a prior public record of his interest in the child. To the considerable surprise of many, the United States Supreme Court concluded that such a requirement is proper.^[835] Some other states have now enacted similar legislation to protect potential adopting parents.

In the USA in the twentieth century, adoption has been used for a variety of new purposes. In those states that allow adoption of adults a man has occa­sionally adopted his wife (even without divorcing her) so that she will be his suc­cessor as remainderman to a trust.^[836] Adoptions of adults of the same sex have also been used as substitutes for homosexual unions. Such adoptions have also served to provide for the succession to a homosexual without descendants.^[837] When illegitimacy was a bar to the Roman Catholic priesthood without Papal dispensation, adoption was also used to suppress public evidence of illegitimacy through intricate strategies of inter-state birth-registration. In one instance a mother who hoped that her son would become a Roman Catholic priest sug­gested a scheme to remove the barrier of obvious illegitimacy. A boy had been born in California to an unwed mother, and his birth-certificate revealed that fact. The mother later married a man who was not the boy’s father but allowed the boy to use his surname. The man and woman were later divorced, but the boy continued to use the man’s name. When the boy was about ten years old, the mother and her son moved to Texas. There, two years later, she was allowed to adopt her own child through a judicial proceeding. A new birth certificate was then issued in Texas. It merely showed the mother’s name as a married woman but not the father’s name, as though omitted by oversight. The Californian authorities then substituted the information of the Texas certificate in the Californian records and issued a new birth certificate. The old facts of illegitimacy were thereby suppressed by the magic of the law of recording. This was not unlike the creation of an Italian adoption of a grandson in the seven­teenth century except that in this case its object was to deceive the Holy Father.^[838]

From such simple, but sometimes not so intricate, devices a large and well- developed body of law and practice has developed. As the availability for adop­tion of American children (with physical characteristics similar to the adults seeking adoptive children) has been exhausted, increasing numbers of Americans have adopted foreign children. Thus, the American way of adoption has become a part of an international adoption “industry” (as American publi­cists are prone to described such commercial enterprises), and the welfare of needy foreign children and desires of childless parents have been well served as a consequence of the process.^[839]

Roman and Germanic adoptive institutions were both regarded as resting fundamentally on contractual undertakings confirmed by a public affirmation by communal, judicial, or princely authority. The new adoption has tended to be achieved either by legislative act, formal acknowledgment of a commitment to parenthood, or a judicial decree of parenthood with little concern for a con­tractual foundation for these results. In the American system of adoption, as well as in that of most Western countries, the adoption agency has generally averted the need for direct contact and contractual dealing between the biolog­ical parent and the adoptive parent. When, as a consequence of the death of a biological parent or the divorce of biological parents, a biological relative or step-parent adopts a child, anonymity in the process is not generally sought. In the adoption of infants through public agencies, however, anonymity of the bio­logical origin of the adopted child has been generally desired by all concerned. The new adoption has thus tended to rest primarily on public authority and administrative notoriety, and the legal significance of the contractual element in the transaction has tended to disappear.

In some American states, however, the right of adopted children to seek their biological parents has been recognized, and a practice of maintaining contact between the adopted child and biological parents, grandparents, and siblings has been recognized in some jurisdictions.^[840] In consequence, not only the object but also the process of adoption has continued to change, and apart from its name the new institution has little resemblance to the succession-centered older practice.