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DE MANCIPIO. - Gaius, Institutes of Roman Law [160 AD]
Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).
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§ 116. Superest ut exponamus quae personae in mancipio sint.
§ 117. Omnes igitur liberorum personae siue masculini siue feminini sexus quae in potestate parentis sunt mancipari ab hoc eodem modo possunt, quo etiam serui mancipari possunt.
§ 118. Idem iuris est in earum personis quae in manu sunt; | —NA coemptionatoribus eodem modo possunt |—NAapud coemptionatorem fi|liae loco sit—nupta sit, — nihilo minus etiam quae ei nupta non sit nec ob id filiae loco sit, ab eo mancipari possit.
§ 118 a. Plerumque 〈uero tum〉 solum et a parentibus et a coemptionatoribus mancipantur, cum uelint parentes coemptionatoresque 〈ex〉 suo iure eas personas dimittere, sicut inferius euidentius apparebit.
§ 119. Est autem mancipatio, ut supra quoque diximus, imaginaria quaedam uenditio; quod et ipsum ius proprium ciuium Romanorum est, eaque res ita agitur: adhibitis non minus quam quinque testibus ciuibus Romanis puberibus et praeterea alio eiusdem condicionis, qui libram aeneam teneat, qui appellatur libripens, is qui mancipio accipit, aes tenens ita dicit: hvnc ego hominem ex ivre qviritivm mevm esse aio isqve mihi emptvs esto hoc aere aeneaqve libra; deinde aere percutit libram idque aes dat ei a quo mancipio accipit quasi pretii loco.
§ 120. Eo modo et seruiles et liberae personae mancipantur; animalia quoque quae mancipi sunt, quo in numero habentur boues, 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 seruiles 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 uero absentia solent mancipari.
§ 122. Ideo autem aes et libra adhibetur, quia olim aereis tantum nummis utebantur, et erant asses, dupundii, semisses, quadrantes, nec ullus aureus uel argenteus nummus in usu erat, sicut ex lege xii tabularum intellegere possumus; eorumque nummorum uis et potestas non | in numero erat sed in pondere—as|ses librales erant, et dupundii—|;NA unde etiam dupundius dictus est quasi duo pondo, quod nomen adhuc in usu retinetur. semisses quoque et quadrantes pro rata scilicet portione ad pon|dus examinati erant —qui dabat olim | pecuniam, non numerabat eam, sed appendebat; unde serui quibus permittitur administratio pe|cuniae dispensatores appellati sunt et—|NA
§ 123. —coemptio|—NAa quidem quae coem|ptionem fac — seruilem condici|onem a—|NA mancipati mancipataeue seruorum loco con|stituuntur, adeo quidem, ut ab eo cuius in mancipio sunt neque hereditatem neque legata aliter capere possint, quam 〈si〉 simul eodem testamento liberi esse iubeantur sicut iuris est in persona seruorum. sed differentiae ratio manifesta est, cum a parentibus et a coemptionatoribus isdem uerbis mancipio accipiantur quibus serui; quod non similiter fit in coemptione.
§ 116. It remains to examine what persons are 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 daughter may be mancipated by her father: and although the acquirer of her by coemption otherwise than for the purpose of marriage has not the power of a father over her, nevertheless, though 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 by the acquirer of a woman 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, belonging to that part of the law which is peculiar to 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 quirtary 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 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 mancipable, such as Italic lands and houses, are aliened by the same process.
§ 121. The only point wherein the mancipation of land and buildings differs from the mancipation of other things is this, that mancipable persons, whether slaves or free, and animals that are mancipable, must be present to be mancipated: it being necessary that the alienee should grasp the object to be mancipated with his hand, and from this manual prehension the name of mancipation is derived; whereas land and buildings may be mancipated at a distance from them.
§ 122. The reason of using a bronze ingot and a weighing scale is the fact that bronze was the only metal used in the ancient currency, which consisted of pieces called the as, the double as, the half as, the quarter as, and that gold and silver were not used as media of exchange, as appears by the law of the Twelve Tables: and the value of the pieces was not measured by number but by weight. Thus the as was a pound of bronze, the double as two pounds, whence its name (dupondius), which still survives; while the half as and quarter as were masses defined by weighing those respective fractions of a pound. Accordingly, money payments were not made by tale, but by weight, whence slaves entrusted with the administration of money have been called cashiers.
§ 123. If it is asked in what respect coemptive conveyance differs from mancipation, the answer is this, that coemption does not reduce 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 he is enfranchised by such will, 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 jus civile, slavery an institute of jus gentium, § 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 the person in whose mancipium he was. Thus the status of mancipium was relative; a man could only be in mancipio in relation to a given domestic lord: whereas the status of slavery was absolute; a man might be a slave without an owner (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 owner. 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. Release from bondage, as from slavery, was by manumission, § 138, and the manumitter became the patron of the released person, §§ 166, 195 a, 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, n. 708.
§ 120. Praedia Italica. 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, 91-88 b. c., all Italy had acquired Roman citizenship, 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. [English bronze is an alloy composed of ninety-five parts of copper, four parts of tin, and one part of zinc.] Brass, a mixture of copper and calamine (cadmeia) or zinc, was called orichalcum. Silver currency was first introduced b. c. 269. The primitive system of currency was everywhere currency by weight, and every system of coinage was originally identical with a system of weights, the unit of value being the unit of weight of some selected metal (Jevons, Money, ch. 9). The pieces of which a currency by weight consists are not properly coins, for coins are ingots of which the weight and fineness are certified by the integrity of the designs impressed upon the surfaces of the metal (ibid. ch. 7). Money is legal tender (Mill, Pol. Econ. 12, 7). Legal tender is that which must be tendered by the debtor and accepted by the creditor in discharge of a debt; e. g. in England silver coin is a legal tender only to the amount of forty shillings in any one payment, bronze coins are a legal tender only to the aggregate amount of one shilling. Bank of England notes are a legal tender everywhere in England but at the bank, i. e. are there convertible into gold.
§ 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.