dicionem, a parentibus vero et a coemptionatoribus mancipati mancipataeve servorum loco constituuntur, adeo quidem, ut ab eo cuius in mancipio sunt neque hereditatem neque legata aliter capere possint, quam si simul eodem testamento liberi esse iubeantur sicuti iuris est in persona servorum. sed differentiae ratio manifesta est, cum a parentibus et a coemptionatoribus iisdem verbis mancipio accipiuntur quibus servi; quod non similiter fit in coemp

tione.

duce to a servile condition, whereas mancipation reduces to so completely a servile condition that a person held in mancipation cannot take as heir or legatee under the will of the person to whom he is mancipated, unless thereby at the same time enfranchised, thus labouring under the same incapacity as a slave: the reason too of the difference is plain, as the form of words. employed in mancipation by a parent or previous acquirer by coemption is identical with that used in the mancipation of slaves, but it is not so in coemptive conveyance.

In what respects did domestic bondage (mancipium or mancipii causa) differ from slavery (servitus)? Bondage was an institute of Civil law, slavery an institute of the law of nations, § 52. Bondage was the result of mancipation by a parent or coemptionator, and only a Roman citizen was capable of becoming a bondsman. The proprietor has possession of the slave, the lord has no possession of the bondsman, 2, § 90. The bondsman was civis Romanus, though what became of his political capacities during his bondage is uncertain; and he was liber, though alieni juris: he was free in respect of the rest of the world, he was only a bondsman in respect of his domestic superior (paterfamilias). Hence the status of mancipium was relative; a man could only be mancipium in relation to a given domestic lord: whereas the status of slavery was absolute; a man might be a slave without a proprietor (servus sine domino): for instance, a person condemned for a capital crime, who was called the slave of punishment (servus poenae, Inst. 1, 12, 3), or a slave abandoned (derelictus) by his proprietor. Accordingly, falling into servitus was maxima capitis diminutio, while falling into mancipii causa was minima capitis diminutio, § 162. The bondsman had no proprietary rights against his superior, 2, § 86, but he had some of the Primordial rights; for instance, he could sue his superior for outrage, § 141; and he was capable of civil wedlock and could beget Roman citizens, though during his bondage his patria potestas was in abeyance, § 135 a. Release from bondage, as from slavery, was by manumission, and the manumitter became the patron of the released person, § 195, but the manumitted

bondsman became ingenuus, whereas the manumitted slave became libertinus. Bondage did not exist in the time of Justinian.

§ 119. The libripens must not be dumb, Ulpian, 20, 7: probably because he had to utter the formula preserved by Festus, Raudusculo libram ferito, i.e. to invite the emptor to strike the scale with the ingot, in order to show by the ring that the metal was genuine. Ihering, § 46.

§ 120. Under the first emperors the body of the Roman world consisted of three members, the imperial city, Rome, Italy, and the provinces, the two former being highly privileged in comparison with the third. After the Social War all Italy had acquired the Roman franchise, but Italic soil was not a purely local appellation, as jus Italicum was conceded to many provincial cities. Jus Italicum, or Italian privileges, implied (1) a free municipal constitution with elective magistrates (generally called duumviri juri dicundo) possessed of independent jurisdiction; and, what was still more important, (2) immunity from direct taxation, whether in the form of capitation tax (tributum capitis), imposed on all who were not holders of land (tributarii), or in the form of land tax (tributum agri), imposed on holders of land (possessores), and paid in provinces of the people to the aerarium under the name of stipendium, in provinces of the emperor to the fiscus under the name of tributum, 2, § 21. Italic soil was (3) subject to Quiritary ownership (dominium ex jure Quiritium) and acquirable and transferable by usucapion and mancipation. Under the later emperors, as early as the time of Diocletian, the Roman world was equalized, not by the elevation of the depressed members, but by depression of those formerly favoured: Italy was shorn of her privileges, and all the empire became provincial.

§ 122. Chemical analysis shows that the aes of which Roman coins consisted was bronze, a mixture of copper (cuprum), tin, and lead. Brass, a mixture of copper and calamine (cadmeia) or zinc, was called orichalcum. Silver currency was first introduced B.C.

269.

§ 123. As coemptio was a form of mancipatio, how does it happen that manus, the result of coemptio, differs from mancipium, the result of mancipatio? Because, Gaius answers, the formula of words used in the mancipatio that entered into coemptio was specifically different from the formula employed on other occasions of mancipation.

QUIBUS MODIS IUS POTESTATIS SOLVATUR.

§ 124. Videamus nunc, quibus modis ii qui alieno iuri subiecti

sunt eo iure liberentur.

$ 129. Quod si ab hostibus captus fuerit parens, quamvis servus interim hostium fiat, pendet ius liberorum propter ius postliminii, quia hi qui ab hostibus capti sunt, si reversi fuerint, omnia pristina iura recipiunt. itaque reversus habebit liberos in potestate. si vero illic mortuus sit, erunt quidem liberi sui iuris; sed utrum ex hoc tempore quo mortuus est aput hostes parens, an ex illo quo ab hostibus captus est, dubitari potest. Ipse quoque filius neposve si ab hostibus captus fuerit, similiter dicemus propter ius postliminii potestatem quoque parentis in suspenso esse.

§ 130. Praeterea exeunt liberi virilis sexus de patris potestate si flamines Diales inaugurentur, et feminini sexus si virgines Vestales capiantur.

§ 131. Olim quoque, quo tempore populus Romanus in Latinas regiones colonias deducebat, qui iussu parentis profectus erat in Latinam coloniam, e patria potestate exire videbatur, cum qui ita civitate Romana cesserant acciperentur alterius civitatis cives.

$129. Though the hostile capture of the parent makes him a slave of the enemy, the status of his children is suspended by his right of retrospective rehabilitation, for on escape from captivity a man recovers all former rights accordingly, if the father returns he will have his children in his power; if he dies in captivity his children will be independent, but whether their independence dates from the death of the parent or from his capture by the enemy may be disputed. Conversely, if a son or grandson is captured by the enemy, his right of subsequent recovery of status causes the power of his ascendent to be provisionally suspended.

§ 130. Further, a son is liberated from parental power by his inauguration as flamen of Jove, a daughter by her selection for the office of Vestal virgin.

§ 131. Formerly, too, when Rome used to send colonies into the Latin territory, an order of the parent to depart for a Latin colony was held to liberate a son from parental power, because such departure was held to make the son a citizen of a foreign state.

§ 128. Relegation was a milder form of punishment than deportation, and involved no loss of civitas nor of domestic rights, Inst. 1, 12, 2.

§ 129. Postliminium is the recovery of rights by a person returned from captivity, or the recovery of rights over a person or thing recovered from hostile possession. The word postliminium seems to be derived from pot, the root of potestas or possessio, and limen or stlimen=ligamen, and therefore would denote the bridging over of the interval of captivity by a fiction of continued capacity or possession, as a doorway is bridged over by a lintel (limen).

§ 130. In imitation of the ancient law Justinian enacted that certain dignities should release from patria potestas; for instance, patriciatus and the episcopate, the latter because it made a man spiritual father of all mankind, Novella, 81.

§ 131. The Latini or members of coloniae Latinae were an intermediate class between cives and peregrini. They differed from peregrini in that they had commercium, i. e. capacity of Quiritary ownership with its incidents, and they differed from cives in not having connubium, and consequently being incapable of patria potestas, Cic. Pro Caecina, 35. A Roman citizen could only become a Latin with his own consent. Qui cives Romani in colonias Latinas proficiscebantur, fieri non poterant Latini ni erant auctores facti nomenque dederant, Cic. De Domo, 30. Roman citizens who went to Latin colonies did not lose their citizenship without voluntary enrolment among the colonists.' See also Cic. Pro Balbo, 11.

§ 132. Emancipatione quoque desinunt liberi in potestatem parentium esse. sed filius quidem tertia demum mancipatione, ceteri vero liberi, sive masculini sexus sive feminini, una mancipatione exeunt de parentium potestate: lex enim xii. tantum in persona filii de tribus mancipationibus loquitur, his verbis: SI PATER FILIUM TER VENUMDABIT, FILIUS A PATRE LIBER ESTO.

eaque res ita agitur. mancipat pater filium alicui: is eum vindicta manumittit eo facto revertitur in potestatem patris. is euin iterum mancipat vel eidem vel alii; set in usu est eidem mancipari: isque eum postea similiter vindicta manumittit: quo facto rursus in potestatem patris sui revertitur. tunc tertio pater eum mancipat vel eidem vel alii; set hoc in usu est, ut eidem mancipetur: eaque mancipatione desinit in potestate patris esse, etiamsi nondum manumissus sit, set adhuc in causa mancipii [lin. 24].

$132. Emancipation also liberates children from the power of the parent, a son being liberated by three mancipations, other issue, male or female, by a single mancipation; for the law of the Twelve Tables only mentions three mancipations in the case of the son, which it does in the following terms: IF A FATHER SELL A SON THREE TIMES, THE SON SHALL BE FREE FROM THE

FATHER. The ceremony is as follows: the father mancipates his son to some one; the alienee manumits him by fictitious vindication, whereupon he reverts into the power of his father; the father again mancipates him to the same or a different alienee, usually to the same, who again manumits him by fictitious vindication, whereupon he reverts a second time into the power of his father; the father then mancipates him a third time to the same or a different alienee, usually to the same, and by this third mancipation the son ceases to be in the power of the father even before manumission and while in the status of a person held in mancipation. [The alienee or fiduciary father should then remancipate him to the natural father, in order that thereupon the natural father by manumitting him may acquire the rights of patron instead of the fiduciary father.]