EMANCIPA´TIO
EMANCIPA´TIO was an act by which the
potestas of a paterfamilias over a person in his
power was voluntarily dissolved by him, and it was so called because it was
effected in the guise of a sale with all the ancient solemnities of the
aes et libra (
mancipatio). One of the rights of a paterfamilias under the
archaic law of Rome was that of making money out of his children by selling
them, and originally he might sell the same child as often as he pleased,
and as opportunity occurred through the rights of the last purchaser being
extinguished; but soon this came to be thought inhuman, and the Twelve
Tables enacted that if a father sold his son three times, the latter should
be free from his
potestas ( “si pater
filium ter venumdabit, filius a patre liber esto,” Gaius, 1.132;
cf. Dion. Halic.
Antiq. 4.27). This rule was laid hold. of as
providing a means of voluntarily releasing children from
patria potestas, which before seems not to have been
possible; for the
pater was never able to
barely abdicate his rights (Dion. Halic. 2.26.6; Cod. 8.47, 6), and a person
in
potestas could not be made free by an
ordinary manumission, like a slave, because the
potestas itself was not a right of property, but in the nature of
imperium. The process of emancipating a
son, which is fully described by Gaius (1.132), was as follows. The
pater sold him by
mancipatio to a third person, who then, in accordance with an
agreement to that effect, express or implied, manumitted him by
vindicta (Lactantius,
Div. Inst. 4.3,
17). This. simply restored him to the
patria
potestas, owing to the rule of the Twelve Tables. The operation
was repeated, with the same result. By being mancipated a third time,
however, the son was released from
potestas,
but he did not become free, being
in mancipio
(quasi-slave) to the purchaser; but the latter had usually bound himself by
agreement (
fiducia) to remancipate him to the
pater, which being done the father simply
manumitted him by
vindicta (being no longer his
paterfamilias), whereby the son became free, and the father his quasi-patron
and also his
tutor, legitimus if the child was
impubes (Gaius,
Epit. 1.6,
3). If the final act of manumission was performed by the purchaser, and not
by the father, these rights and functions devolved on the former. For the
emancipation of a daughter or any other descendant, only one sale was
required, the Twelve Tables having spoken of these only in the case of a
filius (Ulpian,
Reg. 10, 1).
The legal effects of emancipation were two. Firstly, the emancipated person
became
sui instead of
alieni
juris; thereby, if a male, he acquired capacity to exercise
himself
patria potestas, and in any case became
able to bring actions. in his own name, make a will, and own property. As a
general rule he was entitled to retain his
peculium absolutely, unless expressly denied him (
Fragm.
Vat. 255, 261), and the
peculium
known as
adventicium became his originally in
any case: Constantine, however, enacted that the
pater should have the right of retaining a third of it, for which
Justinian substituted a usufruct or life interest in a half, “quasi
pro praemio emancipationis” (Cod. 6, 61, 6, 3). Secondly, he
underwent
capitis deminutio (
minima), the agnatic tie between him and his family being
broken; so that neither had he any claim, by the civil law, to succeed those
who belonged to it if they died intestate, nor had they any title to inherit
from him. In fact, by the old
jus civile, the
only point in which an emancipated child was held to have any connexion with
his old family was that, if the final act of manumission had been performed
by the paterfamilias and not by the person to whom he had been mancipated,
the
pater became
quasi patron (and possibly tutor), and succeeded the child if the
latter died intestate leaving no
sui heredes.
When, however, the law of intestacy came to be modified by the
[p. 1.727]praetorian
bonorum
possessio introduced through the Edict, emancipated children and
those who were in the
pater's power at his death
(
sui heredes) were placed on the same
footing, under the title of
liberi, in respect
of succession to the father's property on his dying intestate; and by
enactments of Anastasius and Justinian, an
emancipatus acquired a similar right of succeeding in his due
place to other non-agnatic relatives, among whom might be even brothers,
sisters, uncles and aunts. A further recognition (of far earlier origin) of
the actual relationship existing between father and child, even after
emancipation, is to be found in the rules as to
testamentum inofficiosum (
Inst. 2.18: see
TESTAMENTUM).
The Emperor Anastasius (A.D. 491-518) introduced a new and alternative mode
of emancipation by imperial rescript, in reply to a petition from the
paterfamilias, which was chiefly employed where the father and child resided
in different places, so that the old form
per aes et
libram was inapplicable (Cod. 8, 49, 5). Justinian, having
abolished the old distinction between
res
mancipi and
nec mancipi, and with it
mancipation, the form of conveyance appropriate to the former, introduced a
new mode of emancipation in lieu of the old one, viz. a declaration made by
the
pater before a magistrate, of which a
record was preserved in the official
acta of
the court (Cod. 8, 49, 5, 6;
Inst. 1.12, 6); but the child's
consent was necessary (unless he was under seven years of age, or had come
into
potestas by adrogation, Cod. 8, 48, 9;
Inst. 1.11, 3), a rule which was as least as old as
Paulus (
Sent. rec. 2.25, 5). The
pater might not bargain for any services to be rendered by the
child in consideration of the emancipation (
Dig.
37,
12,
4;
37,
15,
10): but he might emancipate grandchildren, retaining their father
in his power, or
vice versâ
(
Inst. 1.12, 7). As a general rule a child in power, whatever
his age, could not compel the
pater to
emancipate him against his will (
Dig. 1,
7,
31),; the only exceptions
being where he had been adrogated while
impubes
and found the adrogation prejudicial to him (
Dig. 1,
7,
32), and where
property had been left to and accepted by the
pater on the express condition of emancipating him. (
Dig. 1,
7; Cod. 8, 49; Gaius,
1.132
sq.; Ulpian,
Reg. 10.1; Paulus,
Sent. rec. 2.25, 2
sq.）
[
J.B.M]
