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p726 Mancipii Causa

Article by George Long, M.A., Fellow of Trinity College
on pp726‑727 of

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

MANCI′PII CAUSA. The three expressions by which the Romans indicated the status in which a free person might be with respect to another, were In Potestate, In Manu, and In Mancipio ejus esse (Gaius, I.49). In consequence of his Potestas a father could mancipate his child to another person, for in the old times of the republic his Patria Potestas was hardly distinguished from property. A husband had the same power over a wife In Manu, for she was "filiae loco." Accordingly a child in Potestate and a wife in Manu were properly Res Mancipi; and they were said to be In Mancipio. Still such persons, when mancipated, were not exactly in the relation of slaves to the persons to whom they were mancipated; but they occupied a status between free persons and slaves, which was expressed by the words Mancipii causa. Such persons as were in Mancipii causa were not Sui juris (Gaius, I.48‑50); and all that they acquired, was acquired for the person to whom they were mancipated. But they differed from slaves in not being possessed; they might also have an injuriarum actio for ill-treatment from those who had them In Mancipio, and they did not lose the rights of Ingenui, but these rights were only suspended. As to contracts, the person with whom they contracted might obtain the sale of such property (bona) as would have been theirs, if they had not been in mancipii causa; as Gaius expresses it (IV.80). Persons In mancipii causa might be manumitted in the same way as slaves, and the limitations of the Lex Aelia Sentia and Furia Caninaº did not apply to such manumission. The person p727who effected the manumission thereby acquired a kind of patronal right, which was of some importance in the matters of hereditas and tutela (Savigny, System, &c. I.360).

The strict practice of Mancipatio, as applied to children, had fallen into disuse in the time of Gaius, and probably still earlier, and it had then become a mere legal form by which the Patria Potestas was dissolved [Emancipatio]; except a person was mancipated ex noxali causa. In case of delicts by the son, the father could mancipate him (ex noxali causa mancipio dare), and one act of mancipatio was considered sufficient (Gaius, IV.75‑78; Liv. VIII.28); but the son had a right of action for recovering his freedom, when he had worked out the amount of the damage (Mos. et Rom. Leg. Coll. II.3). Justinian put an end to the noxae datio in the case of children, which indeed before his time had fallen into disuse (Inst. 4 tit. 8 s7).

In his time, Gaius remarks (I.141), that men were not kept in mancipii causa (in eo jure) for any long time, the form of mancipatio being only used (except in the case of a noxalis causa) for the purpose of emancipation. But questions of law still arose out of this form; for the three mancipationes, which were necessary in the case of a son, might not always have been observed. Accordingly a child begotten by a son who had been twice mancipated, but born after the third mancipatio of his father, was still in the power of his grandfather. A child begotten by a son who was in his third mancipatio, came into his father's power if he was manumitted after that mancipation; but if the father died in mancipio, the child became sui juris (Gaius, I.135).

Coemptio, by which a woman came in manum, was effected by mancipatio, and the coemptio might be either matrimonii causa, or fiduciae causa. The fiduciae causa coemptio was a ceremony which was necessary when a woman wished to change her tutores, and also when she wished to make a will; but a senatusconsultum of Hadrian dispensed with the ceremony in the latter case (Gaius, I.115, etc.)

Dion Cassius (XLVIII.44) says that Tiberius Nero transferred or gave (ἐξέδωκε) his wife to Octavianus, as a father would do; and the transfer of his wife Marcia by the younger Cato to Quintus Hortensius (Plut. Cat Min. c25) is a well-known story. If in both these cases the wife was In Manu, she must have been mancipated. Mancipatio in such case would be equivalent to a divorce; at any rate, in both the cases which have been mentioned, the second marriage must have been preceded by a consent to dissolve the marriage, which would be sufficient if the wife was not in manu, and would require the form of mancipatio if she was in manu (Gaius, I.137).

The situation of a debtor who was adjudicated to his creditor resembled that of a person who was In mancipii causa.


Thayer's Note:

For a quick, simple, elegant summary of Mancipium, Res Mancipi and Nec Mancipi, see Marcia Armstrong's article under Mancipium.


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