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gon who effected the manumission thereby acquired a kind of patronal right, which was of some importance in the matters of hereditas and tutela. (Savigny, System, &c. i. 360.)
The strict practice of Mancipatio, as applied to children, had fallen into disuse in the time of Gains, and probably still earlier, and it had then become a mere legal form by which the Patria Potestas was dissolved [emancipatio] ; except a person was mancipated, ex noxali causa. In case of delicts by the son, the father could mancipate him (ex noxali causa mancipio dare), and one act of mancipatio was considered sufficient (Gains, iv. 75—78 ; Liv. viii. 28 ; but the son had a right of action for recovering his freedom, when he had worked out the amount of the damage. (Mos. et Rom. Leg. Coll. ii. 3.) Justinian put an end to the noxae datio in the case of children, which indeed before his time had fallen into disuse. (Inst. 4. tit. 8. s. 7.)
In his time, Gaius remarks (i. 141), that men were not kept in mancipii causa (in eo jure) for any long time, the form of mancipatio being only used (except in the case of a noxalis causa) for the purpose of emancipation. But questions of law still arose out of this form; for the three mancipa-tiones, which were necessary in the case of a son, might not always have been observed. Accordingly a child begotten by a son who had been twice mancipated, but born after the third mancipatio of his father, was still in the power of his grandfather. A child begotten by a son who was in his third mancipatio, came into his father's power if he was manumitted after that mancipation ; but if the father died in maneipio, the child became sui juris. (Gaius, i. 135.)
Coemptio, by which a woman came in manum, was effected by mancipatio, and the coemptio might be either matrimonii causa, or fiduciae causa. The fiduciae causa coemptio was a ceremony which was necessary when a woman wished to change her tutorcs, and also when she wished to nicike a will ; but a senatuseonsultum of Hadrian dispensed with the ceremony in the latter case. (Gaius, i. 115, &c.) Dion Gassius (xlviii. 44) says that Tiberius Nero transferred or gave (e£e'5&>K:e) his wife to Oetavianus, as a father would do ; and the transfer of his wife Marcia by the younger Cato to Quintus Hortensius (Pint. Cat. Min. c. 25) is a well-known story. If in both these cases the wife was In Manu, she must have been mancipated. Mancipatio in such case would be equivalent to a divorce • at any rate, in both the cases which have been mentioned, the second marriage must have been preceded by a consent to dissolve the marriage, which would be sufficient if the wife was not in manu, and would require the form of mancipatio if she was in manu. (Gaius, i. 137.)
The situation of a debtor who was adjudicated to his creditor resembled that of a person who was In mancipii causa. [G. L.]
MANCFPIUM. The etymology of this word is the same as that of the word Mancipatio, of which Gains (i. 121) says, "Mancipatio dicitur quia manu res capitur." The term Mancipium then is derived from the act of corporeal apprehension of a thing ; and this corporeal apprehension is with reference to the transfer of the ownership of a thing. It was not a simple corporeal apprehension, but one which was accompanied with certain forms described by Gaius (i. 119): — *' Mancipatio is effected in the presence of not less
than five witnesses, who must be Roman citizens and of the age of puberty (puleres), and also in the presence of another person of the same condition, who holds a pair of brazen scales and hence is called Libripens. The purchaser (qui mancipio az-cipit}, taking hold of the thing, says : I affirm that this slave (homo) is mine Ex Jure Quiritium, and he is purchased by me with this piece of money (aes) and brazen scales. He then strikes the scales with the piece of money, and gives it to the seller as a symbol of the price (quasi pretii Zoco)." The same account of the matter is given more briefly by Ulpian (Frag. xix.). This mode of transfer applied to all Res Mancipi whether free persons or slaves, animals or lands. Lands (praedia) might be thus transferred, though the parties to the mancipatio were not on the lands ; but all other things, which were objects of mancipatio, were only transferable in the presence of the parties, because corporeal apprehension was a necessary part of the ceremony. The purchaser or person to whom the-mancipatio was made did not acquire the possession of the mancipatio ; for the acquisition of possession was a separate act. (Gaius, iv. 131). Gaius calls Mancipatio " imaginaria quaedam venditio," for though the law required this form for the transfer of the Quiritarian ownership, the real contract of sale consisted in the agreement of the parties as to the price. The party who transferred the ownership of a thing pursuant to these forms was said, "mancipio dare;" he who thus acquired tho ownership was said "mancipio accipere." (Plant, Trinwn. ii. 4. 18.) The verb "mancipare*" is sometimes used as equivalent to "mancipio dare." Horace (Ep. 11. 2. 159) uses the phrase "mancipat usus," which is not an unreasonable licence: he means to say that"usus'' or usucapion has the same effect as mancipatio, which is true ; but usua only had its' effect in the case of Res Mancipi, where there had been no Mancipatio or In Jure Cessio. Both Mancipatio and In Jure Cessio existed before the Twelve Tables (Frag. Vat. 50). Mancipatio is used by Gains to express the act of transfer, but in Cicero the word Mancipium is used in this sense. (Cic. de Off", iii. 16, de Orat. i. 39.)
The division of things into Res Mancipi and Nee Mancipi, had reference to the formalities requisite to be observed in the transfer of ownership. It is stated in the article dominium, what things were things Mancipi. To this list may be added children of Roman parents, who were according to the old law Res Mancipi. [mancipii causa.] The Quiritarian ownership of Res Mancipi could only be immediately transferred by Mancipatio or In Jure Cessio ; transfer by tradition only made such things In bonis. The Quiritarian ownership of Res nee mancipi was acquired by tradition only, when there was a justa causa. Quiritarian ownership is called mancipium by the earlier Roman writers: the word domininm is first used by later writers, as for instance Gains. Mancipatio could only take place between Roman citizens or those who had the Commercium ; which indeed appears from the words used by the purchaser. (Gaius, i. 119 ; Ulp. Frag. xix. 3.)
The only word then by which this formal transfer of ownership was made was Mancipium, which occurs in the Twelve Tables. (Dirksen, UebersicJit^ &c. p. 395.) The word nexum or nexus is also sometimes used in the same sense. Cicero (rf\m.
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