6. Children, also, cease to be under the power of their parents by emancipation. Formerly emancipation was effected, either adopting the process of the ancient law, consisting of imaginary sales, each followed by a manumission, or by imperial rescript; but we, in our wisdom, have introduced a reform on this point by one of our constitutiones.
The old fictitious process is now done away with, and parents may now appear directly before a proper judge or magistrate, and free from their power their children, or grandchildren, or other descendants.
And then, according to the praetorian edict, the parent has the same rights over the goods of those whom he emancipates, as the patron has over the goods of his freedman. And, further, if the child or children emancipated are within the age of puberty, the parent, by the emancipation, becomes their tutor.
7. It is also to be observed that a parent having in his power a son, and by that son a grandson or granddaughter, may emancipate his son, and retain in his power his grandson or granddaughter; or, conversely, he may emancipate his grandson or granddaughter, and retain his son in his power; or, he may make them all independent. And it is the same in the case of a great-grandson, or a great-granddaughter.
8. If a father has a son in his power, and gives him in adoption to the son’s natural grandfather or great-grandfather, in conformity with our constitutiones enacted on this subject, that is, if he declares his intention in a formal act before a competent judge, in the present and without the dissent of the person adopted, and also in the presence of the person who adopts, then the right of paternal power is extinguished as to the natural father, and passes from him to the adoptive father; with regard to whom, as we have before observed, adoption preserves all its effects.
9. It must be observed, that if your daughter-in-law becomes pregnant, and if during her pregnancy you emancipate your son, or give him in adoption, the child will be born in your power; but if the child is conceived subsequently to the emancipation or adoption, he is born in the power of his emancipated father, or his adoptive grandfather. Children, natural or adoptive, have almost no means of compelling their parents to free them from their power.
XIII. Guardianship.
Let us now proceed to another division of persons. Of those who are not in the power of a parent, some are under a tutor, some under a curator, some under neither. Let us treat, then, of the class of those persons who are under a tutor or curator; for we shall thus ascertain who are they who are not subject to either. And first of persons under a tutor.
Read More about The Institutes 535 CE part 27
