previous next

MANCI´PII CAUSA

MANCI´PII CAUSA The three expressions by which the Romans distinguished the different species of power (manus or potestas) to which a free person might be subject in the hands of another, were in potestate, in manu, and in mancipio ejus esse (Gaius, 1.138). This last kind of power arose when a paterfamilias transferred a filiusfamilias to another person by process of mancipation [MANCIPIUM], as he had a right to do. The legal effect of such mancipation was that the filiusfamilias who was the object of it ceased to be in the power of his paterfamilias, and came into the mancipium, or power, of the person to whom he was given in mancipation: thereby he was degraded to a servile state, undergoing a capitis deminutio. A husband had the same power over a wife in manu, for she was filiae loco. The mancipation was in form a conveyance by sale, and it cannot be doubted that at one time the right of selling children in this way was freely exercised, children being hardly distinguished from slaves and other property. In course of time, however, the effect of the mancipation of free persons became considerably modified by custom. Generally speaking, such mancipation was mere matter of form (dicis gratia) in the classical period of Roman law, and probably from a much earlier time; the form being used in order to free a filiusfamilias from patria potestas [EMANCIPATIO; ADOPTIO], and was not intended to give the person to whom the transfer was made any real power, though for the moment until manumission the person mancipated was nominally in mancipii causa, and thus suffered capitis deminutio (Gaius, 1.141). The mancipation came only to be used for the purpose of creating a real and lasting causa mancipii when a filiusfamilias was surrendered by his paterfamilias to some one on account of a delict which the filiusfamilias had committed against the surrenderee.

The power exercised over persons in mancipii causa resembled that of a master over his slaves (mancipia). Thus Cicero compares the position of a person in mancipio with that of a criminal condemned to slavery (pro Caecin. 34, 98). Being like slaves to the person to whom they were transferred, they had no agnatic rights in his family, and they were manumitted in the same way as slaves, the person manumitting them acquiring thereby a kind of patronal relation to them. Still such persons were not exactly in the relation of slaves to the persons to whom they were mancipated; thus they were to some extent protected from the ill-treatment of the latter by the actio injuriarum which they might maintain (Gaius, 1.141): their children were not in mancipio, according to Gaius (Gaius, 1.135); they were not possessed as property (Gaius, 2.90), and though they were necessarii heredes, if instituted by their master, they had the beneficium abstinendi like sui heredes (Gaius, 2.160). [HERES]

But the great distinction between a person in mancipio and a mancipium or slave was that whereas a slave had no rights, a person in mancipio was only in a servile condition in respect to the person to whom he was mancipated, not losing his general status as a freeman. The semi-servile position of persons in mancipio is expressed by the phrase causa mancipii.

In respect of property, the same rule applied to persons in mancipio as to other persons who were alieni juris: all that they had or acquired belonged to the person in whose mancipium they were. Mancipium was put an end to by manumission vindicta, censu, or testamento. According to Gaius (1.140), manumission censu of a person in mancipio might take place without the consent of the person whose mancipium was taken away; but this was not applicable to a person mancipated on condition of remancipation to his father, or to a person mancipated ex noxali causa; that is, on account of his delict (Gaius, 1.140). When, however, a person surrendered ex noxali causa (noxae datus), had made satisfaction for the injury he had committed, the person noxae accipiens might be compelled to make a remancipation or manumission by order of the praetor. (Collat. 2.3, 1; Inst. Just. 4, 8, 3: cf. Theoph. ad loc.) The limitations of the Lex Aelia Sentia and Fufia Canidia in respect to the manumission of slaves did not apply to this kind of manumission.

The mancipium was put an end to by remancipation to the father; it did not terminate ipso jure, but always required some act of remancipation or manumission. Justinian put an end to the noxae datio in the case of children, which indeed before his time had fallen into disuse. (Inst. Just. 4, 8, 7; Gaius, 1.116-123, 138-141; A. Schmidt, Die Persönlichkeit d. Sklaven; Danz, Geschichte des römischen Rechts; Walter, Geschichte d. röm. Rechts; Böcking, Pand. Inst. 1.48; Kuntze, Cursus d. R. R. § § 796, 797.)

[E.A.W]

hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: