By the civil law before the time of
Justinian, the effect of adoption was
to place the person adopted in the
same position he would have held had
he been born a son of the adopter. All
the property of the adopted son be-
longed to the adoptive father. The
adoptive son was heir to his adoptive
father, if intestate, bore his name, etc.,
and shared the sacred rites of the fam-
ily he entered. It sometimes happened
under this law that a son lost the suc-
cession to his own father by being ad-
opted, and to his adoptive father by
a subsequent emancipation. To reme-
dy this, Justinian provided that the son
given in adoption to a stranger should
be in the same position to his own fa-
ther as before, but gained by adoption
the succession to his adoptive father if
www.vtbar.org
he die intestate. And by that law the
adopted son is declared “assimilated,
in many points, to a son born in lawful
matrimony.” 158
of plaintiff in Davenport v. John G. Shants &
Co. (1871) by his lawyers on appeal, insist-
ing that machinery “lost its identity as per-
sonal property, and would pass to any own-
er in the freehold, who was not a wrong-do-
er.” They succeeded, although Judge Asa-
hel Peck never referred to Justinian. 154
Judge John Rowell quoted Justinian in
Hard v. Burton (1890) in discussing “nova-
tion,” which he described as a term bor-
rowed from Roman law referring to a con-
tract substituted for another. “Justini-
an says that novation takes place only when
the contracting parties expressly disclose
that their object in making the new contract
is to extinguish the old contract; that other-
wise the old contract remains in force and
the new contract is added to it, and each
gives rise to an obligation still in force.” 155
He was quoted by Judge John Watson
in Payne v. Sheets (1903), a case involv-
ing a challenge to the rights of the hold-
er of an easement who sued another for
trespassing for purposes of pursuit of wild
game, through his own recitation of a U.S.
Supreme Court decision by Justice Ed-
ward White. White wrote, “No restriction, it
would hence seem, was placed by the Ro-
man law upon the power of the individual
to reduce game, of which he was the own-
er in common with other citizens, to pos-
session, although the Institutes of Justin-
ian recognize the right of an owner of land
to forbid another from killing game on his
property, as, indeed, this right was implied-
ly admitted by the Digest in the passage
just