THE ANCIENT CITY. BOOK II CHAPTER IV. Adoption and Emancipation.
The duty of perpetuating the domestic worship was the foundation of the law
of adoption among the ancients. The same religion which obliged a man to marry,
which pronounced a divorce in case of sterility, which, in case of impotence or of premature death
substituted a relative in place of the husband, still offered to
a family one final resource to escape the so much dreaded misfortune of extinction;
this resource was the right of adoption. "He to whom nature has denied a son can adopt one,
so that the funeral ceremonies may not cease." Thus speaks the old legislator of the Hindus.
We have a curious plea of an Athenian orator in a case where the legitimacy of a son's adoption was
contested. The defendant shows us first the motive for which one adopted a son. "Menecles," he says,
"did not wish to die without children; he was desirous of leaving behind him
some one to bury him, and in after time to perform the ceremonies of the funeral worship."
He then goes on to show what will happen if the tribunal annuls his adoption;
what will happen, not only to himself, but to the one who has adopted him. Menecles is dead,
and still it is the interest of Menecles that is at stake. “If you annul my adoption, you will
leave Menecles, who is dead, without a son; and consequently no one will perform the sacrifices
in his honor, no one will offer him the funeral repast, and thus he will be without worship."
To adopt a son, was then, to watch over the perpetuity of the domestic religion,
the safety of the sacred fire, the continuation of the funeral offerings, and the repose of
the manes of the ancestors. There being no reason for adoption, except the necessity
of preventing the extinction of a worship, it was permitted only to one who had no son.
The law of the Hindus is formal on this point. That of the Athenians is not less so;
all the orations of Demosthenes against Leochares are proof of this.
No particular passage proves that this was the case in the old Roman law, and we know that
in the time of Gaius a man might have at the same time sons by nature and sons by adoption.
It appears, however, that this point was not admitted as legal in Cicero's time; for in
one of his orations the orator expresses himself thus: "What is the law concerning adoption? Why,
that he may adopt children who is no longer able to have children himself,
and who failed of having them when he was of an age to expect it. To adopt is to seek, by regular
and sacerdotal law, that which by the ordinary process of nature he is no longer able to obtain."
Cicero attacks the adoption of Clodius, taking the ground that the man who has adopted him
already has a son, and he declares that this adoption is contrary to sacerdotal law.
When a son was adopted, it was necessary, first of all, that he should be initiated into a form
of worship, "introduced into a domestic religion, brought into the presence of new Penates."
Adoption, therefore, was accompanied by a ceremony very like that which took place at the birth of a
son. In this way the new comer was admitted to the hearth, and associated in the new religion. Gods,
sacred objects, rites, prayers, all became common between him and his adopted father.
They said of him. In sacra transiit — He has passed to the worship of the new family.
By this very ceremony he renounced the worship of the old one. We have seen, indeed, that according
to this ancient belief, the same man could not sacrifice at two hearths, or honor two series of
ancestors. Admitted to a new house, the old became foreign to him. He no longer had anything in
common with the hearth near which he was born, and could no longer offer the funeral repast to his
own ancestors. The ties of birth were broken; the new tie of a common worship took the ascendency.
The man became so completely a stranger to his own family, that, if he happened to die, his
natural father had no right to take charge of the funeral, or to conduct the procession. The adopted
son could not return again to the old family; or, at most, the law permitted this only when,
having a son, he left that son to take his place in the adoptive family. They considered that,
the perpetuity of this family being thus assured, he might leave it; but, in this case, he severed
all the ties that bound him to his own son. Emancipation corresponded, as a correlative,
to adoption. In order that a son might enter a new family, it was necessary that he should be
able to leave the old; that is to say, that he should be emancipated from its religion.
The principal effect of emancipation was the renunciation of the worship of the family in which
one was born. The Romans designated this act by the very significant name of sacrorum detestatio.