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MANCI´PIUM

MANCI´PIUM or according to an earlier form mancupium, is the formal legal proceeding per aes et libram, by which power and dominion over persons and over things was transferred by one person to another. The word in this sense is of ancient origin, and occurs in the Twelve Tables (Dicksen, Uebersicht, &c. p. 395; Voigt, XII. Tafeln, 2.84). Cicero only uses mancipium, but Gaius and other writers express this act of transfer by the more modern word mancipatio, which is in its conception the act of transfer regarded from the side of the purchaser or person qui mancipat [MANCEPS], as emancipatio, emancipare, which sometimes mean generally a [p. 2.118]conveyance or to convey per aes et libram (Quint. Inst. 6.3; Plin. Ep. ad Traj. 4, 3; Gel. 15.27, 3), refer to the side of the transferor; mancipium is the conveyance regarded as an act both of transferor and transferee (Voigt, 1. c.). The etymology of the word mancipium is the same as that of the word mancipatio, of which Gaius (1.121) says, “Mancipatio dicitur quia manu res capitur.” The term mancipium, then, is derived from the act of corporeal apprehension of the thing to be conveyed, which took place in this process of transfer. This explanation of the origin of the word, which is adopted by most modern writers, is rejected by Mr. Muirhead (Introduction to the Law of Rome, p. 61), who maintains that the notion of mancipium is not manu capere, but manum capere, to take or acquire by transfer power or dominion over persons and things. He urges as an objection to the common etymology that there was no taking with the hand when land or a house was being conveyed, for the parties did not require to be near them; and there could be none in the mancipation of a praedial servitude, for it was intangible. This criticism is based on the assumption, that the law on the subject of mancipation, as it is described by Gaius, was also the law of earlier times, when the word mancipium was first formed; it seems probable, however, that a taking of the thing or of some part of it by the hand was at first required in every rei mancipatio, as well as in every rei vindicatio, and that it was subsequently dispensed with in the case of land on account of its inconvenience. There is also reason to suppose, that praedial rustic servitudes were not one of the original objects of an independent mancipation.

The party who made a transfer pursuant to the form of mancipation was said mancipio dare; he to whom the transfer was made was said mancipio accipere (Plaut. Trin. 2.4, 18). The verb mancipare is sometimes used as equivalent to mancipio accipere (cf. Schol. Crug. ad Hor. Ep. 2.159; “mancipat: mancipio accipit,” Voigt, l.c.). Horace uses the phrase “mancipat usus,” which is not an unreasonable licence; he means to say that usus or usucapion has the same effect as mancipation, which is true; but the effect in case of usucapion is produced by possession for a certain time, when the possessor has not already acquired ownership by mancipation or other title.

Some Latin writers who lived towards the close of the Republic appear to have considered mancipium to be a species of nexum, the term nexum being used by them in a more general sense than had attached to it in earlier times. According to Aelius Gallus, as cited by Festus (s. v. nexum), everything was nexum, “quodcunque per aes et libram geritur;” and as mancipatio was effected per aes et libram, it was consequently a nexum. M. Manilius, as cited by Varro (L. L. 7.105), attaches the same comprehensive sense to the term nexum. Cicero (Top. 5, 28) says that the alienation of a res mancipi was effected either by traditio nexu or by in jure cessio. These two modes correspond to the mancipatio and in jure cessio of Gaius (2.41), and accordingly mancipatio (or the older term mancupium) is equivalent to traditio nexu.

But, as we see from a passage of Varro which contains a definition of nexum by C. Mucius Scaevola, the term nexum was, properly speaking, only applicable to proceedings per aes et libram, in so far as obligations resulted from them, and so would not include the notion of conveyance, which attaches to mancipiun. (Varr. L. L. 7.5, 105: “(Q. Mucius) nexum (est), quae per aes et libram fiant, ut obligentur, praeterquam quae mancipio dentur (Varr.): hoc verius esse ipsum verbum ostendit, de quo quaerit: nam id est, quod obligatur per libram neque suum fit; inde nexum dictum.” ) A nexum was, however, contained in a rei mancipatio, since the latter proceeding, besides transferring ownership, which was its main object, also gave rise to subsidiary obligations. Thus the mancipio dans was bound to warrant the title to the thing conveyed against eviction, and the mancipio accpiens might be bound by a fiducia attached to the mancipation to reconvey the thing on the happening of some condition. Hence a res was said to be nexa or obligata which was mancipated subject to a pledge or mortgage. Cicero (de Harusp. Resp. 7, 14) includes in the same sentence both the jus mancipii and the jus nexi, where he is speaking of various titles to property. He may mean here to speak of the jus mancipii in the sense of title by absolute conveyance as contrasted with the jus nexi or title by mortgage. (Cf. Cic. de Orat. 1.38, 173; ad Fam. 4.30.)

The forms of mancipations are described by Gaius (1.119): “Mancipatio is effected in the presence of not less than five witnesses, who must be Roman citizens and of the age of puberty (puberes), 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 accipit) 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 he gives it to the seller (ei a quo mancipio accipit) as a symbol of the price (quasi pretii loco).” The same account of the matter is given more briefly by Ulpian (Frag. xix.).

Mancipation was instituted at a time when only copper money was in use, as we learn, Gaius says, from the Twelve Tables; and it also dates from a time when money was weighed in scales, there being no coined money (Gaius, 1.122), though subsequently the scales were struck with a coin. Mancipation, like all early conveyances, is of a public or semi-public nature. It was not, indeed, as was in jure cessio, executed in the presence of a magistratus, but the five Roman citizens who were required to attest it probably stood in the place of the community, and their number may have been originally intended to correspond with the five classes into which the populus was divided by Servius.

The libripens was supposed to be an impartial third person, and was perhaps at one time designated by some public authority. We do not know whether the scales used in the sale were, public or private; but it is probable that there were public scales in the market to enable persons to mancipate slaves and cattle. Mr. Muirhead (Introd,, &c., p. 58, n. 10) refers to a statement of Varro (L. L. 5.183) that scales were still preserved in his time in the temple of Saturn.

An act of calling the attention of the witnesses [p. 2.119]to the execution of the mancipation (antestari) is mentioned (cf. Huschke, Jurisprud. antejust., C. Aelius Gallus, § 6); but whether it was performed by a person exclusively employed for the purpose, or by one of the parties to the mancipation, is uncertain. The terms antestari, antestatus, do not occur in Gaius and Ulpian, and it is clear that when they wrote there was no special person in the proceeding known as antestatus.

The description which Gaius gives of mancipation shows that the proceeding consisted of an assertion of title to the thing on the part of the purchaser, as well as of the purchase itself per aes et libram. This assertion of title, which varied in its terms according to the character of the mancipation, corresponded to some extent with the claim made by a person acquiring a thing by in jure cessio (Gaius, 2.24), though it was made before witnesses, and not to the praetor. The sale per aes et libram was no doubt at first a real one, but the mancipation was converted into a general form of transfer by the formal payment of a small piece of copper (aes, raudus, raudusculum), the adequacy of the price paid being legally immaterial. Thus Gaius calls mancispatio “imaginaria quaedam venditio:” for though the law required the sale, the real cause of the transaction was outside the mancipation, and might just as well be gift or dowry as actual sale. The cause would, however, appear in the instrument, which was generally drawn up as a record of title (see inscriptions cited by Voigt, 2.84, n. 9).

The essential parts of the formula of mancipation might be accompanied by qualifications called leges mancipii (Cic. de Or. 1.3. 9, 178), which would be obligatory on the parties. Thus mancipations might be made subject to a trust (fiducia) of remancipation, and servitudes might be reserved (deductio) by this means. Effect was given to such additional terms by the clause of the Twelve Tables, “Cum nexum faciet mancipiumque, uti linguâ nuncupassit, ita jus esto.” The nuncupatio was the declaration of the terms of the mancipation by the parties to the conveyance. In Roman law of the classical period it was more usual to make independent covenants concerning accessory terms, instead of incorporating them in the mancipation itself. Mancipation was a general form of transfer, and was not only used in the conveyance of property, but in other transactions, as in emancipation, adoption, co-emption. As to the application of mancipatio to wills, see TESTAMENTUM

Mancipatio and in jure cessio (a conveyance probably of later origin than mancipation) were the only means of transferring ownership recognised by the law of the Twelve Tables. After a time, however, only certain kinds of things, called res mancipi, were required to be conveyed by mancipatio, other res (nec mancipi) being allowed to pass by mere informal delivery of possession (traditio). It is not to be supposed that the effect of this change was to prevent res nec mancipi being transferred by mancipation, should the parties to a conveyance wish to use this form; mancipation seems, in fact, to have been sometimes used for conveying important res nec mancipi (e. g. Plin. Nat. 9.117), probably on account of its evidentiary value and the warranty of title which attached to it.

The following res were res mancipi:--Lands and houses in Italico solo, praedial rustic servitudes, slaves, oxen, horses, mules, and asses. (Gaius, 1.120; 2.15, 17.) [DOMINIUM]

Lands (praedia) might be transferred by mancipation, though the parties to the mancipation were not on the land; but all other things which were mancipated were only transferable in the presence of the parties. The purchaser or person to whom the mancipatio was made did not in the time of the classical jurists acquire possession by the act of mancipation, but only ownership, the acquisition of possession being a separate act (Gaius, 4.131) [POSSESSIO], though as a matter of fact the transfer of ownership and possession would generally take place at the same time, at least in the case of movables. The conveyance of a res mancipi, by informal delivery only, had no legal effect in respect of transfer of ownership according to Jus Civile, but in course of time the praetor protected a person to whom a res mancipi had been conveyed by traditio, giving him the same security as if he had acquired a civil title by mancipation (in bonis rem habere, Gaius, 2.40). The establishment of a praetorian title in such a case was a great step towards the abolition of mancipium as a conveyance. When things were transferred by mancipatio under a contract of sale, the vendor was bound to warranty in double of the amount of the thing sold (Paul. S. R. 2.17). A vendor therefore who had a doubtful title would not sell by mancipium, but would merely transfer by delivery, and leave the purchaser to acquire the Quiritarian ownership of the thing by usucapion (Plaut. Curc. 4.2, 9; Persa, 4.3, 55). Accordingly Varro observes (R. R. 2.10) that if a slave was not transferred by mancipium, the seller entered into a stipulatio dupli to be enforced by the buyer in the case of eviction; when the transfer was' by mancipium, the stipulation was not necessary.

Mancipation, an institution of the Jus Civile, was not suited to the customs of non-Italian people, and came to be regarded as an inconvenient form; hence it gradually lost its importance, and in Justinian's legislation was entirely superseded by the informal conveyance traditio, which was derived from the Jus Gentium (Cod. Just. 1, 31: “de sublata differentia rerum mancipi et nec mancipi.” In passages of the Corpus Juris, where the jurists speak of mancipatio, the compilers substitute traditio. The last mention of the conveyance occurs in Vat. Frag. § 313; Hermog. Cod. 7, 1; Theod. Cod. 8, 12, 4, 5). Mancipatio ceased also to be a formality in adoption and emancipation.

The word mancipium is used in a cognate sense to the above as equivalent to complete ownership, and may thus be opposed to usus, as in a passage of Lucretius that has often been quoted (3.971), and to Fructus (Cic. Fam. 7.2. 9, 30). Sometimes the word mancipium means the thing mancipated, and hence it frequently signifies a slave, as being a most important res mancipi. This is probably the sense of the word in Cicero (Top. 5, 27) and certainly in Horace (Hor. Ep. 1.6, 39). (Brisson, Antiq. 1.7; Giraud, Recherches sur le droit de propriété chez les Rom. 1.217, &c.; Leist, Mancipation und Eigenthumstradition, rev. by Degenkolb, Krit. Vierteljahrschrift, vol. xx. p. 481; Deiters, de [p. 2.120]mancipat. indole et ambitu; Bechmann, Kauf, 1.47, &c.; Kuntze, Excurse, 167, &c.; Voigt, XII. Tafeln, 2. § § 84-88; Ihering, Geist, 2.46; Maine's Ancient Law, p. 318.)

[E.A.W]

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