The Institutes of Justinian | Page 9

whether as the son of an adoptive son of his own, or of a natural son who is in his power, the consent of this son ought to be obtained, lest a family heir be thrust upon him against his will: but on the other hand, if a grandfather wishes to give a grandson by a son in adoption to some one else, the son's consent is not requisite. 8 An adoptive child is in most respects in the same position, as regards the father, as a natural child born in lawful wedlock. Consequently a man can give in adoption to another a person whom he has adopted by imperial rescript, or before the praetor or governor of a province, pro- vided that in this latter case he was not a stranger (i.e. was a natural descendant) before he adopted him himself. 9 Both forms of adoption agree in this point, that persons incapable of procreation by natural impotence are permitted to adopt, where- as castrated persons are not allowed to do so. 10 Again, women cannot adopt, for even their natural children are not subject to their power; but by the imperial clemency they are enabled to adopt, to comfort them for the loss of children who have been taken from them. 11 It is peculiar to adoption by imperial rescript, that children in the power of the person adrogated, as well as their father, fall under the power of the adrogator, assuming the position of grandchildren. Thus Augustus did not adopt Tiberius until Tiberius had adopted Germanicus, in order that the latter might become his own grandson directly the second adoption was made. 12 The old writers record a judicious opinion contained in the writings of Cato, that the adoption of a slave by his master is equiva- lent to manumission. In accordance with this we have in our wisdom ruled by a constitution that a slave to whom his master gives the title of son by the solemn form of a record is thereby made free, although this is not sufficient to confer on him the rights of a son.
TITLE XII OF THE MODES IN WHICH PATERNAL POWER IS EXTINGUISHED
Let us now examine the modes in which persons dependent on a superior become independent. How slaves are freed from the power of their masters can be gathered from what has already been said respecting their manumission. Children under paternal power become independent at the parent's death, subject, however, to the following distinction. The death of a father always releases his sons and daughters from dependence; the death of a grandfather releases his grandchildren from dependence only provided that it does not subject them to the power of their father. Thus, if at the death of the grand- father the father is alive and in his power, the grandchildren, after the grandfather's death, are in the power of the father; but if at the time of the grandfather's death the father is dead, or not subject to the grandfather, the grandchildren will not fall under his power, but become independent. 1 As deportation to an island for some penal offence entails loss of citizenship, such removal of a man from the list of Roman citizens has, like his death, the effect of liberating his children from his power; and conversely, the deportation of a person subject to paternal power terminates the power of the parent. In either case, however, if the condemned person is pardoned by the grace of the Emperor, he recovers all his former rights. 2 Relegation to an island does not extinguish paternal power, whether it is the parent or the child who is relegated. 3 Again, a father's power is extinguished by his becoming a `slave of punishment,' for instance, by being condemned to the mines or exposed to wild beasts. 4 A person in paternal power does not become independent by entering the army or becoming a senator, for military service or consular dignity does not set a son free from the power of his father. But by our constitution the supreme dignity of the patriciate frees a son from power immediately on the receipt of the imperial patent; for who would allow anything so unreasonable as that, while a father is able by emancipation to release his son from the tie of his power, the imperial majesty should be unable to release from dependence on another the man whom it has selected as a father of the State? 5 Again, capture of the father by the enemy makes him a slave of the latter; but the status of his children is suspended by his right of subsequent restoration by postliminium; for on escape from captivity a man recovers all his former rights, and among them the right of paternal power over his