6 familias ejus natus esset, utique ei vitae necisque in eum potestas siet, uti patri endo filio est. Haec ita uti dixi, ita vos, Quirites, rogo. 5, 19. Adrogation is the subjection of an independent person with his own consent to the power of a superior, and is not transacted in the dark or without investigation. The Comitia Curiata, at which the College of Pontiffs is present, are convened, and examine whether the age of the adrogator does not rather qualify him for the natural procreation of children, and whether the estate of the adrogatus is not the object of fraudulent cupidity, and an oath, said to be framed by Q. Mucius, the high pontiff, has to be taken by the adrogator. . . . Adrogation, the name given to this transit into a strange family, is derived from the interrogation of the legislative body, which is in the following form: ' May it please you to will and command that L. Valerius shall be as completely by law and statute the son of L. Titius, as if he were born of L. Titius and his wife, and that L. Titius shall have power of life and death over L. Valerius as a father has over his son. Do you will and command as I have said, Quirites?' Those who voted in affirmation of the measure proposed said (at least in other similar assemblies): Uti rogas; those who voted against it said: Antiquo. Women were originally incapable of being adrogated, because they were incapable of appearing in the Comitia Curiata, Quoniam cum feminis nulla comitiorum communio est, Gellius, ibid.; but this incapacity vanished as soon as the lex Curiata, as form of adrogation, was superseded by imperial rescript (principale rescriptum), Dig. 1, 7, 21. Women, being incapable of exercising parental power, could not, properly speaking, adrogate; but they were permitted by quasi adrogation to establish the same legal relation as existed between a mother and her natural children, Cod. 8, 48, 5. An adrogator was usually required to be sixty years old, Dig. 1, 7, 15, and to be eighteen years (plena pubertate) older than adrogatus, Inst. 1, 11, 4. Originally a youth must have attained the age of puberty before he could be adrogated, § 102: Sed adrogari non potest nisi jam vesticeps . . . . quoniam tutoribus in pupillos tantam esse auctoritatem potestatemque fas non est, ut caput liberum fidei suae commissum alienae ditioni subiciant, Gellius, ibid. A youth cannot be adrogated before he has assumed the toga virilis, because a guardian has no authority or power to subject an independent person, with whose charge he is entrusted, to the domination of a stranger.' The purple-edged praetexta was generally laid aside by boys along with the bulla aurea which they wore round their neck, on the first Liberalia, the 17th March, Ovid, Fasti, 3, 771, after the completion of their fourteenth year. Females did not lay aside the praetexta till their marriage. Antoninus Pius permitted the adrogation of youths below the age of puberty (impubes, investis) under certain conditions; e. g. the adrogator entered into a stipulation, originally with a public slave, in later times with a public notary (tabularius), in the event of the death of adrogatus before the age of puberty, to restore his estate to his natural heirs, and, in the event of emancipation, to adrogatus himself: and adrogatus became entitled to a fourth part of the estate of adrogator (called quarta Antonini), of which he could not be deprived by disinherison or by unmerited emancipation. In the time of Justinian the adrogator only acquired in any case an usufruct or life estate in the property of adrogatus, which reverted to adrogatus after the death of adrogator; that is to say, the property of adrogatus was transformed by adrogation into peculium adventicium. The form of adoption is explained below, § 134, under the head of dissolution of patria potestas, for as patria potestas is vested by adoption in the adoptive father, so it is divested from the natural father. The contrasted forms of adrogation and adoption are mentioned in juxtaposition by Suetonius Gaium et Lucium adoptavit, domi per assem et libram emptos a patre Agrippa . . . Tertium nepotem Agrippam simulque privignum Tiberium adoptavit in foro lege curiata, Augustus, 64. 'Augustus adopted his daughter's sons, Gaius and Lucius, by (fictitious vindication after) a private conveyance by bronze and balance from their father Agrippa. His third grandson Agrippa and his stepson Tiberius he adrogated in the forum by a law of the Comitia Curiata.' These comitia had long been merely fictitious forms, the thirty curiae being symbolized by thirty lictors. The effect of adoption was much reduced by a constitution of Justinian. If the adoption was by an ascendent, maternal or paternal, it retained its old character: but if it was by a stranger it neither created nor extinguished patria potestas; it did not transfer the adopted son from his old family into a new family, and therefore it neither destroyed nor created any tie of agnation: its only effect was to give to the adoptive son, in the event of intestacy, a claim against the estate of the intestate adoptive father; Cod. 8, 48, 10. Besides the two modes of originating patria potestas which we have hitherto examined, birth in civil wedlock and adoption, subsequently to the time of Gaius a third mode was introduced, called by modern jurists Legitimation. This was the promotion of naturales liberi, children born in concubinatus, or cohabitation without matrimony, to the position of justi liberi, children born in lawful wedlock, which, after the extension of the franchise by Caracalla, would mean the same as children born in civil wedlock. Concubinatus was a relation partially recognized by the law, and children born in concubinage, though they had no right, by title of cognation, to the succession of their father, were recognized as cognates of their mother, and differed from children born in promiscuous intercourse (stuprum), inasmuch as their father was not considered incertus. There were three modes of the legitimation of natural children, subsequent marriage, destination to the municipal senate (curiae oblatio), and imperial rescript. Legitimation by subsequent marriage was introduced by Constantine, A.D. 335. Legitimation by destination to the senate was introduced by Theodosius and Valentinian, A.D. 443, with the design of replenishing the order of municipal senators (curiales, decuriones), much reduced in the time of the later emperors in consequence of the general disinclination to belong to a class, subject, along with various apparent privileges, to many onerous and intolerable obligations. To fill the gaps in this order, a father was permitted to legitimate his natural child by making him a senator of his municipality (civitas), and was relieved from the restrictions limiting the amount devisable by testators to natural children, Cod. 5, 27, 3. Legitimation by imperial rescript was introduced by Justinian. The laws recognizing concubinatus were abrogated by Leo Philosophus, A.D. 887. It was in answer to a proposition of the bishops to introduce legitimation by subsequent wedlock that the English Lords at the Parliament of Merton used the celebrated expression : Nolumus leges Angliae mutari, 20 Hen. 3, c. 9, A.d. 1236. DE MANU § 108. Nunc de his personis videamus quae in manu nostra sunt. quod et ipsum ius proprium civium Romanorum est. $109. Sed in potestate quidem § 108. Let us next proceed to consider what persons are subject to the Hand, another right only vested in citizens of Rome. § 109. Power is a right over et masculi et feminae esse solent: males as well as females: Hand in manum autem feminae tantum relates exclusively to females. conveniunt. § 110. Olim itaque tribus modis in manum conveniebant, usu, farreo, coemptione. § 111. Usu in manum conveniebat quae anno continuo nupta perseverabat; quae enim velut annua possessione usucapiebatur, in familiam viri transibat filiaeque locum optinebat. itaque lege duodecim tabularum cautum erat, si qua nollet eo modo in manum mariti convenire, ut quotannis trinoctio abesset atque ita usum cuiusque anni interrumperet. set hoc totum ius partim legibus sublatum est, partim ipsa desuetudine oblitteratum est. § 112. Farreo in manum conveniunt per quoddam genus sacrificii .... in quo farreus panis adhibetur: unde etiam confarreatio dicitur. sed conplura praeterea huius iuris ordinandi gratia cum certis et sollemnibus verbis, praesentibus decem testibus aguntur et fiunt. quod ius etiam nostris temporibus in usu est: nam flamines maiores, id est Diales, Martiales, Quirinales, sicut reges sacrorum, nisi sint confarreatis nuptiis nati, inaugurari non videmus . . . . confarreatio . . . . § 113. Coemptione in manum conveniunt per mancipationem, id est per quandam imaginariam venditionem, adhibitis non minus quam v. testibus, civibus Romanis puberibus, item libripende, asse is sibi emit mulierem, cuius in manum convenit. § 114. Potest autem coemptio § 110. In former days there were three modes of becoming subject to Hand, possession, confarreation, coemption. § 111. Possession invested the husband with right of Hand after a whole year of unbroken cohabitation. Such annual possession operated a kind of usucapion, and brought the wife into the family of the husband, where it gave her the status of a daughter. Accordingly, the law of the Twelve Tables provided that a wife who wished to avoid subjection to the Hand of the husband should annually absent herself three nights from his roof to bar the annual usucapion: but this proceeding is partly abolished by statute, partly obliterated by mere disuse. § 112. Confarreation, another mode in which subjection to Hand originates, is a sacrifice in which they use a cake of spelt, whence the ceremony derives its name, and various other acts and things are done and made in the solemnization of this disposition with a traditional form of words, in the presence of ten witnesses: and this ceremony is still in use, for the functions of the greater flamens, that is, the flamens of Jove, of Mars, of Quirinus, and the duties. of the ritual king, can only be performed by persons born in marriage solemnized by confarreation. § 113. In coemption the right of Hand over a woman is vested in a person to whom she is conveyed by a mancipation or imaginary sale in the presence of at least five witnesses, citizens of Rome above the age of puberty, besides a balance holder, for an As or ingot of bronze. § 114. By coemption a woman nem facere mulier non solum cum marito suo, sed etiam cum extraneo: unde aut matrimonii causa facta coemptio dicitur, aut fiduciae causa. quae enim cum marito suo facit coemptionem, ut aput eum filiae loco sit, dicitur matrimonii causa fecisse coemptionem: quae vero alterius rei causa facit coemptionem cum viro suo aut cum extraneo, velut tutelae evitandae causa, dicitur fiduciae causa fecisse coemptionem. § 115. Quod est tale : si qua velit quos habet tutores reponere, ut alium nanciscatur, iis auctoribus coemptionem facit; deinde a coemptionatore remancipata ei cui ipsa velit, et ab eo vindicta manumissa, incipit eum habere tutorem, a quo manumissa est: qui tutor fiduciarius dicitur, sicut inferius apparebit. may convey herself either to a husband or to a stranger, and accordingly there are two forms of coemption, matrimonial and fiduciary. A coemption with a husband in order to acquire the status of daughter in his house is a matrimonial coemption: a coemption for another purpose, whether with a husband or with a stranger, for liberation, for instance, from guardianship, is a fiduciary coemption. $115. This is accomplished by the following process: the woman who desires to set aside her present guardians and substitute another makes a coemption of herself to some one with their sanction: thereupon the party to this coemption remancipates her to the person intended to be substituted as guardian, and this person manumits her by fictitious vindication, and in virtue of this manumission becomes her guardian, being called a fiduciary guardian, as will hereafter be explained. § 115 a. In former times testamentary capacity was acquired by fiduciary coemption, for no woman was competent to dispose of her property by will, with the exception of certain persons, unless she had made a coemption, been remancipated, and then manumitted: but this necessity of coemption was abolished by a senatusconsult made on the motion of Hadrian. § 115 b. Even if a woman makes only a fiduciary coemption with her husband, she acquires the status of his daughter, for it is held that from whatever cause a woman is in the hand of her husband, she acquires the position of his daughter. Marital power (manus) was entirely assimilated to patria potestas. By manus the husband had power of life and death over the wife, Livy, 39, 18; Tac. Ann. 13, 32; and all the property of the wife, |