Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/96

68 The dissolution of the natural father's power over his children, whether in order to make the child independent (sui juris), or to give him by adoption into another's power, was in old times effected by a complicated ceremonial. This was abolished by Justinian (531), who substituted in the case of adoption a declaration before a competent magistrate, both parties being present, and, in the case of emancipation, either the like simple declaration, or, according to a law of Anastasius (502), if the son or daughter were of age and not present in court, a declaration, supported by a petition to the Emperor, with his grant of the prayer and the consent of the child, if not an infant.

By in older times a person passed under the fatherly power of one who was not his natural father. If he was not independent, he passed entirely from one family to another: his natural father no longer controlled him or was responsible for him, the son's acquisitions did not pass to him, nor had the son any right to his inheritance. The adoptive father stood in the natural father's place, and could retain or emancipate him. Justinian (530) altered this in all cases where the adopter was an outsider. The adopted person retained all his rights and position in his natural father's family, and simply acquired a right of succession to the adopter if he died intestate. But if the adopter was the grandfather or other ascendant either on the father's or mother's side, the effect of adoption remained as of old.

Adoption of a person who was sui juris was often called adrogation, and required a rescript from the Emperor. If the person to be adopted was under age (impubes), inquiry was made whether it was for his advantage, and the adopter had to give security to a public officer for restoration of all the adopted's property to his right heirs, if he died under age. If he emancipated him without lawful cause, or died, he was bound by a law of Antoninus Pius to leave him one-fourth part of his property, besides all that belonged to the adopted person himself. If a person adrogated had children, they passed with him under the power of the adopter. In all cases it was required that the adopter should be at least eighteen years older than the adopted.

In the old law guardians (tutores) were required not only for young persons for a time, but for women throughout their life, though the authority they exercised was often nominal. Guardianship for women was criticised by Gaius as irrational, and it ceased probably before Constantine. By Justinian's time, guardianship affected only impuberes. He fixed the age for puberes at fourteen for males, twelve for females. Up to that age, if their father or other head of the family was dead, or if they were freed from his power, they required a guardian to authorise any legal act which was to bind them. Without such authority they could bind others but not themselves, the rule being that they could improve but could not impair their estate. After the age of puberty the law regarded them as capable of taking the responsibility