ADOPTION OF CHILDREN BEFORE THE ADOPTION ACTS

Introduction

Roman law long recognised the institution of adoptio and adrogatio, which was virtually complete in its effects in creating new family relationships that superseded the old. However, to the Romans adoption was not primarily a mechanism to ensure the good upbringing of children. Rather, it was used to ensure succession either to property or to position. Adoption was, within the Imperial Family, at least as common a mechanism by which Imperial power transferred as the assumption of power by jure sanguinis. (Both were, of course, less common than force of arms as the means by which new Emperors emerged.) Octavius, who as Augustus ruled as the first Emperor, gained most of his political power not from his blood-link to, but through his adoption by, his great-uncle Julius Caesar. He himself then adopted Tiberius, making his step-son his own successor. Nero, Hadrian and Marcus Aurelius were all adopted by the Emperors they succeeded (Claudius, Trajan and Antoninus). The same political use of adoption could be seen when Roman men were adopted into families to acquire a status necessary for a particular political office: the patrician Publius Clodius Pulcher, for example, was adopted (technically, “adrogated”) in 59BCE by a plebeian family in order to be eligible to stand for the office of Tribune (a magistracy closed to patricians). Other than for political gain, adoption at Rome was most often used as a means of appointing successors to property or to keep a family lineage alive and so ensure the future veneration of the ancestors. Adoption was thus a mechanism to escape the severe limitations on testate succession. The limitations in the Scots common law of succession, primarily the legal rights claimable by spouses and issue, were nothing like as severe as those in classical Roman law and so there was no imperative for Scots law to develop adoption as a mechanism to open up succession to the will of the property owner. The idea that the law should step in to ensure the good upbringing of children, the modern purpose of adoption, developed long after the formative period of Scots law and so it is no great surprise that Scots common law, notwithstanding its Roman (or more accurately Roman-Dutch) heritage, did not develop the institution of adoption.