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 p455  Emancipatio

Article by George Long, M.A., Fellow of Trinity College
on pp455‑456 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

EMANCIPA′TIO was an act by which the patria potestas was dissolved in the lifetime of the parent, and it was so called because it was in the form of a sale (mancipatio). By the Twelve Tables it was necessary that a son should be sold three times in order to be released from the paternal power, or to be sui juris. In the case of daughters and grandchildren, one sale was sufficient. The father transferred the son by the form of a sale to another person who manumitted him, upon which he returned into the power of the father. This was repeated, and with the like result. After a third sale, the paternal power was extinguished, but the son was resold to the parent, who then manumitted him, and so acquired the rights of a patron over his emancipated son, which would otherwise have belonged to the purchaser who gave him his final manumission.

The following view of emancipatio is given by a German writer:— "The patria potestas could not be dissolved immediately by manumissio, because the patria potestas must be viewed as an imperium, and not as a right of property like the power of a master over his slave. Now it was a fundamental principle that the patria potestas was extinguished by exercising once or thrice (as the case might be) the right which the pater familias possessed of selling or rather pledging his child. Conformably to this fundamental principle, the release of a child from the patria potestas was clothed with the form of a mancipatio, effected once or three times. The patria potestas was indeed dissolved, though the child was not yet free, but came into the condition of a nexus. Consequently a manumissio was necessarily connected with the mancipatio, in order that the proper object of the emancipatio might be attained. This manumissio must take place once or thrice, according to circumstances. In the case when the manumissio was not followed by a return into the patria potestas, the manumissio was attended with important consequences to the manumissor, which consequences ought to apply to the emancipating party. Accordingly, it was necessary to provide that the decisive manumission should be made by the emancipating party; and for that reason a remancipatio, which preceded the final manumissio, was a part of the form of emancipatio." (Unterholzner, Zeitschrift, vol. II p139; Von den formen der Manumissio per Vindictam und der Emancipatio).

The legal effect of emancipation was to make the emancipated person become sui juris: and all the previously existing relations of agnatio between the parent's familia and the emancipated child ceased at once. But a relation analogous to that of patron and freedman was formed between the person who gave the final emancipation and the child, so that if the child died without children or legal heirs, or if he required a tutor or curator, the rights which would have belonged to the father, if he had not emancipated the child, were secured to him as a kind of patronal right, in case he had taken the precaution to secure to himself the final manumission of the child. Accordingly, the father would always stipulate for a remancipatio from the purchaser: this stipulation was the pactum fiduciae.

The emancipated child could not take any part of his parent's property as heres, in case the parent died intestate. This rigor of the civil always (juris iniquitates, Gaius, III.25) was modified by the praetor's edict, which placed emancipated children, and those who were in the parent's power at the time of his death, on the same footing as to succeeding to the intestate parent's property.

The emperor Augustus introduced the practice of effecting emancipation by an imperial rescript, when the parties were not present (Cod. 8 tit. 49 s5). Justinian enacted that emancipation could be effected before a magistrate. But he still allowed, what was probably the old law, a father to  p456 emancipate a grandson, without emancipating the son, and to emancipating the son without emancipating the grandson, or to emancipate them all. Justinian also (Nov. 89 c11) did not allow a parent to emancipate a child against his will, though it seems that this might be done by the old law, and that the parent might so destroy all the son's rights of agnation. But a man might emancipate an adopted child against the will of the child (Inst. 1. tit. 11 s3). As a general rule the father could not be compelled to emancipate a child; but there were some cases in which he might be compelled.

The emperor Anastasius allowed an emancipated child (under certain restrictions) to succeed to the property of an intestate brother or sister, which the praetor had not allowed; and Justinian put an emancipated child in all respects on the same footing as one not emancipated, with respect to such succession.

An emancipatio effected a capitis diminutio minima, in consequence of the servile character (servilis causa) into which the child was brought by such act. (Gaius, I.132, &c.; Dig. 1 tit. 7; Cod. 6 tit. 57 s15; 8 49; Inst. 1 12; Inst. 3 5; Dirksen, Uebersicht, &c. p278; Thibaut, System, &c., § 783, &c., 9th ed.)

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