DE MANCIPIO. § 116. Superest ut exponamus quae personae in mancipio sint. § 117. Omnes igitur liberorum personae, sive masculini sive feminini sexus, quae in potestate parentis sunt, mancipari ab hoc eodem modo possunt, quo etiam servi mancipari possunt. § 118. Idem iuris est in earum personis quae in manu sunt, nam feminae a coemptionatoribus eodem modo possunt mancipari quo liberi a parente mancipantur; adeo quidem, ut quamvis ea sola aput coemptionatorem filiae loco sit quae ei nupta sit, tamen nihilo minus etiam quae ei nupta non sit, nec ob id filiae loco sit, ab eo mancipari possit. § 118 a. Plerumque solum et a parentibus et a coemptionatoribus mancipantur, cum velint parentes coemptionatoresque e suo iure eas personas dimittere, sicut inferius evidentius apparebit. § 119. Est autem mancipatio, ut supra quoque diximus, imaginaria quaedam venditio: quod et ipsum ius proprium civium Romanorum est. eaque res ita agitur. adhibitis non minus quam quinque testibus civibus Romanis puberibus, et praeterea alio eiusdem condicionis qui libram aeneam teneat, qui appellatur libripens, is qui mancipio accipit rem, aes tenens ita dicit: HUNC EGO HOMINEM EX IURE QUIRITIUM MEUM ESSE AIO, ISQUE MIHI EMPTUS EST HOC AERE AENEAQUE LIBRA : deinde aere percutit libram, idque aes dat ei a quo mancipio accipit, quasi pretii loco. § 116. It remains to examine what it is to be held in mancipation. § 117. All children, male or female, in the power of their father are liable to be mancipated by their father just as his slaves may be mancipated. § 118. A woman in the hand is subject to the same mode of alienation, and may be mancipated by the person who has acquired her by coemption just as a child may be mancipated by its father: and although the acquirer by coemption has not the power of a father over her unless he is her husband, nevertheless, even when he is not her husband, and therefore has not the status of a father, he can dispose of her by mancipation. § 118 a. Almost the sole occasion of mancipation by a parent or acquirer by coemption is when the parent or acquirer by coemption designs to liberate the person mancipated from his lawful control, as will presently be more fully explained. § 119. Mancipation, as before stated, is an imaginary sale which is only within the competence of Roman citizens, and consists in the following process: in the presence of not fewer than five witnesses, citizens of Rome above the age of puberty, and another person of the same condition, who holds a bronze balance in his hands and is called the balance holder, the alienee holding a bronze ingot in his hand, pronounces the following words: THIS MAN I CLAIM AS BELONGING TO ME BY RIGHT QUIRITARY AND BE HE (or, HE IS) PURCHASED TO ME BY THIS INGOT AND THIS SCALE OF BRONZE. He then strikes the scale with the ingot, which he delivers to § 120. Eo modo et serviles et liberae personae mancipantur. animalia quoque quae mancipi sunt, quo in numero habentur boves, equi, muli, asini; item praedia tam urbana quam rustica quae et ipsa mancipi sunt, qualia sunt Italica, eodem modo solent mancipari. § 121. In eo solo praediorum mancipatio a ceterorum mancipatione differt, quod personae serviles et liberae, item animalia quae mancipi sunt, nisi in praesentia sint, - mancipari non possunt: adeo quidem, ut eum qui mancipio accipit adprehendere id ipsum quod ei mancipio datur necesse sit: unde etiam mancipatio dicitur, quia manu res capitur. praedia vero absentia solent mancipari. § 122. Ideo autem aes et libra adhibetur, quia olim aereis tantum nummis utebantur; et erant asses, dupondii, semisses et quadrantes, nec ullus aureus vel argenteus nummus in usu erat, sicut ex lege XII tabularum intellegere possumus ; eorumque nummorum vis et potestas non in numero erat, sed in pondere nummorum. veluti asses librales erant, et dipondii tum erant bilibres; unde etiam dipondius dictus est quasi duo pondo: quod nomen adhuc in usu retinetur. misses quoque et quadrantes pro rata scilicet portione librae aeris habebant certum pondus. item qui dabant olim pecuniam non adnumerabant eam, sed appendebant. unde servi quibus permittitur administratio pecuniae dispensatores appellati sunt et adhuc appellantur. se $123. Si tamen quaerat aliquis, quare a coemptione differat mancipatio, ea quidem quae coemptionem facit, non deducitur in servilem con the mancipator as by way of purchase money. § 120. By this formality both slaves and free persons may be mancipated, and also such animals as are mancipable, namely, oxen, horses, mules, and asses: immovables also, urban and rustic, if subject to quiritary dominion, such as Italic lands and houses, are aliened by the same outward form. $121. The only point wherein the mancipation of immovables differs from the mancipation of movables is this, that persons, whether slaves or free, and animals that are mancipable, must be present to be mancipated: indeed the alienee must grasp the movable to be conveyed with his hand, and from this manual prehension the name of mancipation is derived; whereas immovables need not be present to be mancipated. § 122. The reason of using a bronze ingot and a weighing scale is the fact that the ancient currency consisted entirely of bronze ingots, the as, the double as, the half as, the quarter as, and there was no gold or silver in circulation, as appears by the law of the Twelve Tables: and the value of the currency was not measured by number of coins but by weight of metal. Thus the as was a pound of bronze, the double as two pounds, whence its name (dupondius), which still survives; the half as and quarter as those respective fractions of a pound. Accordingly, money payments were not made by counting, but by weighing, whence slaves entrusted with pecuniary transactions are still called dispensators. § 123. If it is asked in what respect coemptive conveyance differs from mancipation, the answer is this, that coemption does not re dicionem, a parentibus vero et a coempionatoribus 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 pletely 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. § 125. Ac prius de his dispiciamus qui in potestate sunt. § 126. Et quidem servi quemadmodum potestate liberentur, ex his intellegere possumus quae de servis manumittendis superius exposuimus. § 127. Hi vero qui in potestate parentis sunt mortuo eo sui iuris fiunt. Sed hoc distinctionem recipit. nam mortuo patre sane omnimodo filii filiaeve sui iuris efficiuntur. mortuo vero avo non omnimodo nepotes neptesque sui iuris fiunt, sed ita, si post mortem avi in patris sui potestatem recasuri non sunt. itaque si moriente avo pater eorum et vivat et in potestate patris fuerit, tunc post obitum avi in potestate patris sui fiunt: si vero is, quo tempore avus moritur, aut iam mortuus est, aut exiit de potestate patris, tunc hi, quia in potestatem eius cadere non possunt, sui iuris fiunt. § 128. Cum autem is cui ob aliquod maleficium ex lege poenali aqua et igni interdicitur civitatem Romanam amittat, sequitur, ut qui eo modo ex numero civium Romanorum tollitur, proinde ac mortuo eo desinant liberi in potestate eius esse: nec enim ratio patitur, ut peregrinae condicionis homo civem Romanum in potestate habeat. Pari ratione et si ei qui in potestate parentis sit aqua et igni interdictum fuerit, desinit in potestate parentis esse, quia aeque ratio non patitur, ut peregrinae condicionis homo in potestate sit civis Romani parentis. § 124. Let us now examine the modes whereby persons dependent on a superior are freed from their dependence. § 125. And, first, let us consider persons subject to power. $126. The mode of liberating slaves from their proprietor's power was expounded above, when we treated of servile manumission. § 127. Children under paternal power become independent at the parent's death, subject, however, to this reservation: the death of a father always releases his sons and daughters from dependence: the death of a grandfather only releases his grandchildren from dependence, provided that it does not subject them to the power of their father: for if at the death of the grandfather the father is alive and in his power, the grandchildren, after the grandfather's death, are in the power of the father; but if at the time of the grandfather's death the father is dead or not subject to the grandfather, the grandchildren will not fall under his power, but become independent. § 128. As interdiction from fire and water for an offence against the criminal code involves loss of citizenship, such removal of a man from the list of Roman citizens operates, like his death, to liberate his children from his power, for it is inconsistent with civil law that an alien should exercise parental power over a citizen of Rome : conversely, the interdiction from fire and water of a person subject to parental power terminates the power of the parent, because it is a similar inconsistency that a person of alien status should be subject to the parental power of a Roman citizen. |