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]
