3. CREATION AND TERMINATION OF PA TRIA POTESTAS

How patria potestas arises. Patria potestas was normally, of course, created by birth out of a Roman marriage fiustae nuptiae).

¹ J. Carcopino, Daily Life in Ancient Rome (Penguin Books edn.), p. 175.

CREATION AND TERMINATION OF PATRIA POTESTAS T1 created by adoption. This took two forms, both of great anti­quity—adrogatio of a person who was already sui iuris, and adoptio (in the strict sense) of a person who was in the patria potestas of someone else. The original motive for adoption must have been the desire of a childless man to ensure the continuance of the family cult (sacra), though it is possible that in very early times it also served as a crude substitute for a will. When the religious motive had lost its force, there remained the common desire to perpetuate the family, and the survival of many Roman families through the centuries was made possible only by adoptions.

(a)New Roman">   Adrogatio. This was achieved by an act of the comitia curiata, preceded by an investigation by the pontifex maximus.¹ The reason for the legislative form and for the investigation was that adrogatio made possible the continuation of one family and its sacra only at the cost of the extinction of another. The pontifex must be satisfied on religious grounds, and the comitia had an interest in the political consequences of the merger of two power­ful families. In historical times, as has been said, the comitia curiata had no longer any substance as a legislative body, but the inves­tigation by the pontifex was maintained, and certain principles which guided his discretion were evolved.

Since the comitia curiata met only at Rome, adrogatio could take place only there until, certainly under Diocletian and probably before, a new form of adrogatio, by imperial rescript, was intro­duced. This was a change of form rather than of substance: the official approval was merely manifested in a different, and less formal, way. The old form thereafter disappears.

(b)   Adoptio. The transfer of a person from one potestas to another involved first his release from the old potestas and then his subjection to the new. The Twelve Tables recognized no method of release from potestas, but there was a clause, intended apparently to put a limit to misuse by a father of his right to sell his children, which provided that if a father sold his son three

¹ The head of the priestly ‘college’ of pontifices (cf. above, p. 28).

times the son would be free. This was turned to advantage in a characteristic way by pontifical interpretatio to achieve both emancipation and adoption, the two ceremonies differing only in their final stages. For the purpose of adoption the ceremony runs as follows. In the presence of the usual five witnesses and libripens the father mancipates the child to be adopted (ado­ptandus) to the adopter. The adoptandus is as a result in mancipio¹ to the adopter, who then manumits him vindicta (i.e. the parties go to the Praetor and the father claims that the adoptandus is free, and the adopter acquiesces).

By a characteristic piece of well-intentioned but illogical pedantry the pontifical lawyers held that as the Twelve Tables referred only to sons, only one mancipation was necessary to break potestas over a daughter or a grandchild. Justinian at last swept away the whole of this cumbersome ritual and left only the essential—a declaration before a magistrate, entered on the court records.

The effect of both adoptio and adrogatio was to place the adopted person for all legal purposes in the same position as if he had been a natural child in the potestas of the adopter. The adopted son took his adoptive father’s name, and was agnati- cally related to his adoptive father’s agnates. In consequence he acquired rights of succession on death (which by civil law depended on the agnatic relationship) in his new family and lost all such rights that he previously had. Moreover ‘adoption

CREATION AND TERMINATION OF PATRIA POTESTAS 79 imitates nature’, and therefore an adoptive relationship was, for example, as much a bar to marriage as a natural one. Adro­gatio had of course the additional consequences that the property of the person adrogated passed to his adoptive father, and that any children in his/wterttw passed into the potestas of the adoptive father.

Adoptio was a possible source of injustice in that the adopted son might subsequently be emancipated by his adoptive father and, since emancipation destroyed all existing agnatic ties, would then have lost all rights of succession not only in his natural family but also in his adoptive family.^[XXXIV] Justinian there­fore made a radical alteration in the law.

The Roman ideas of adoption, but without the distinction between adrogatio and adoptio or between adoptio plena and minus plena, have passed into modern Civil law, but the Common law knew nothing of such an institution. It was not until 1926 that adoption was introduced (by statute) into England, and then it created little more than a special kind of guardianship: it was confined to children under 21, conferred no rights of succes­sion, and created no relationship which would be a bar to marriage. In the last two respects English law was brought much nearer to Roman ideas in 1949, but adoption of adults, common in Rome, and still practised in, for example, Germany, remains unknown.

How patria potestas ends. Patria potestas is terminated, as we have seen, by adoptio, or by adrogatio of apaterfamilias who has children in his potestas, but also of course by death, and by the loss of liberty or citizenship, and in various other minor ways. The

most important artificial method of terminating patria potestas was, however, emancipation. As was said above, the form here was closely similar to that of adoptio. There were three manci­pations and two manumissions, which left the son out of the potestas of the father but in mancipio to the man of straw.

Emancipation not only freed the son from patria potestas, but also deprived him of all rights of succession. We must not there­fore think of it as necessarily the conferring of a benefit; it might equally well in earlier times be a punishment, casting the son out into the world without property and without hope of inherit­ing any from his father. The Praetor, however, gave rights of succession on intestacy to emancipated children,² and in the classical law they could no more be cut out of their father’s will without good cause than could their unemancipated brothers and sisters.³