1911 Encyclopædia Britannica/Adoption

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ADOPTION (Lat. adoptio, for adoptatio, from adoptare, to choose for oneself), the act by which the relations of paternity and filiation are recognized as legally existing between persons not so related by nature. Cases of adoption were very frequent among the Greeks and Romans, and the custom was accordingly very strictly regulated in their laws. In Athens the power of adoption was allowed to all citizens who were of sound mind, and who possessed no male offspring of their own, and it could be exercised either during lifetime or by testament. The person adopted, who required to be himself a citizen, was enrolled in the family and demus of the adoptive father, whose name, however, he did not necessarily assume. In the interest of the next of kin, whose rights were affected by a case of adoption, it was provided that the registration should be attended with certain formalities, and that it should take place at a fixed time—the festival of the Thargelia. The rights and duties of adopted children were almost identical with those of natural offspring, and could not be renounced except in the case of one who had begotten children to take his place in the family of his adoptive father. Adopted into another family, children ceased to have any claim of kindred or inheritance through their natural father, though any rights they might have through their mother were not similarly affected. Among the Romans the existence of the patria potestas gave a peculiar significance to the custom of adoption. The motive to the act was not so generally childlessness, or the gratification of affection, as the desire to acquire those civil and agnate rights which were founded on the patria potestas. It was necessary, however, that the adopter should have no children of his own, and that he should be of such an age as to preclude reasonable expectation of any being born to him. Another limitation as to age was imposed by the maxim adoptio imitatur naturam, which required the adoptive father to be at least eighteen years older than the adopted children. According to the same maxim eunuchs were not permitted to adopt, as being impotent to beget children for themselves. Adoption was of two kinds according to the state of the person adopted, who might be either still under the patria potestas (alieni juris), or his own master (sui juris). In the former case the act was one of adoption proper, in the latter case it was styled adrogation, though the term adoption was also used in a general sense to describe both species. In adoption proper the natural father publicly sold his child to the adoptive father, and the sale being thrice repeated, the maxim of the Twelve Tables took effect, Si pater filium ter venunduit, filius a patre liber esto. The process was ratified and completed by a fictitious action of recovery brought by the adoptive father against the natural parent, which the latter did not defend, and which was therefore known as the cessio in jure. Adrogation could be accomplished originally only by the authority of the people assembled in the Comitia, but from the time of Diocletian it was effected by an imperial rescript. Females could not be adrogated, and, as they did not possess the patria potestas, they could not exercise the right of adoption in either kind. The whole Roman law on the subject of adoption will be found in Justinian's Institutes, lib. i. tit. II.

In Hindu law, as in nearly every ancient system, wills were formerly unknown, and adoptions took their place. (See INDIAN LAW.) Adoption is not recognized in the laws of England, Scotland or the Netherlands, though there are legal means by which one may be enabled to assume the name and arms and to inherit the property of a stranger. (See NAME.)

In France and Germany, countries which may he said to have embodied the Roman law in their jurisprudence, adoption is regulated according to the principles of Justinian, though with several more or less important modifications, rendered necessary by the usages of these countries respectively. Under French law the rights of adoption can be exercised only by those who are over fifty years of age, and who, at the time of adoption, have neither children nor legitimate descendants. They must also be fifteen years older than the person adopted. In German law the person adopting must either be fifty years of age, or at least eighteen years older than the adopted, unless a special dispensation is obtained. If the person adopted is a legitimate child, the consent of his parents must be obtained; if illegitimate, the consent of the mother. Both in Germany and France the adopted child remains a member of his original family, and acquires no rights in the family of the adopter other than that of succession to the person adopting.

In the United States adoption is regulated by the statutes of the several states. Adoption of minors is permitted by statute in many of the states. These statutes generally require some public notice to be given of the intention to adopt, and an order of approval after a hearing before some public authority. The consequence commonly is that the person adopted becomes, in the eyes of the law, the child of the person adopting, for all purposes. Such an adoption, if consummated according to the law of the domicile, is equally effectual in any other state into which the parties may remove. The relative status thus newly acquired is ubiquitous. (See Whitmore, Laws of Adoption; Ross v. Ross, 129 Massachusetts Reports, 243.) The part played by the legal fiction of adoption in the constitution of primitive society and the civilization of the race is so important, that Sir Henry S. Maine, in his Ancient Law, expresses the opinion that, had it never existed, the primitive groups of mankind could not have coalesced except on terms of absolute superiority on the one side and absolute subjection on the other. With the institution of adoption, however, one people might feign itself as descended from the same stock as the people to whose sacra gentilicia it was admitted; and amicable relations were thus established between stocks which, but for this expedient, must have submitted to the arbitrament of the sword with all its consequences.