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p727 Mancipiuma

Article by George Long, M.A., Fellow of Trinity College
on pp727‑728 of

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

MANCIPIUM. The etymology of this word is the same as that of the word Mancipatio, of which Gaius (I.121) says, "Mancipatio dicitur quia manu res capitur." The term Mancipium then is derived from the act of corporeal apprehension of a thing; and this corporeal apprehension is with reference to the transfer of the ownership of a thing. It was not a simple corporeal apprehension, but one which was accompanied with certain forms described by Gaius (I.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 brazen scales. He then strikes the scales with the piece of money, and gives it to the seller as a symbol of the price (quasi pretii loco)." The same account of the matter is given more briefly by Ulp. (Frag. XIX). This mode of transfer applied to all Res Mancipi whether free persons or slaves, animals or lands. Lands (praedia) might be thus transferred, though the parties to the mancipatio were not on the lands; but all other things, which were objects of mancipatio, were only transferable in the presence of the parties, because corporeal apprehension was a necessary part of the ceremony. The purchaser or person to whom the mancipatio was made did not acquire the possession of the mancipatio; for the acquisition of possession was a separate act (Gaius, IV.131). Gaius calls Mancipatio "imaginaria quaedam venditio," for though the law required this form for the transfer of the Quiritarian ownership, the real contract of sale consisted in the agreement of the parties as to the price. The party who transferred the ownership of a thing pursuant to these forms was said "mancipio dare;" he who thus acquired the ownership was said "mancipio accipere" (Plaut. Trinum. II.4.18). The verb "mancipare" is sometimes used as equivalent to "mancipio dare." Horace (Ep. II.2.159) uses the phrase "mancipat usus," which is not an unreasonable licence: he means to say that "usus" or usucapion has the same effect as mancipatio, which is true; but usus only had its effect in the case of Res Mancipi, where there had been no Mancipatio or In Jure Cessio. Both Mancipatio and In Jure Cessio existed before the Twelve Tables (Frag. Vat. 50).

Mancipatio is used by Gaius to express the act of transfer, but in Cicero the word Mancipium is used in this sense (Cic. de Off. III.16, de Orat. I.39).

The division of things into Res Mancipi and Nec Mancipi, had reference to the formalities requisite to be observed in the transfer of ownership. It is stated in the article Dominium, what things were things Mancipi. To this list may be added children of Roman parents, who were according to the old law Res Mancipi. [Mancipi Causa.] The Quiritarian ownership of Res Mancipi could only be immediately transferred by Mancipatio or In Jure Cessio; transfer by tradition only made such things In bonis. The Quiritarian ownership is called mancipium by the earlier Roman writers: the word dominium is first used by later writers, as for instance Gaius. Mancipatio could only take place between Roman citizens or those who had the Commercium; which indeed appears from the words used by the purchaser (Gaius, I.119; Ulp. Frag. XIX.3).

The only word then by which this formal transfer of ownership was made was Mancipium, which occurs in the Twelve Tables (Dirksen, Uebersicht, &c. p395). The word nexum or nexus is also sometimes used in the same sense. Cicero (Top. 5) p728defines "Abalienatio" to be "ejus rei quae mancipi est;" and this is effected either by "traditio alteri nexu aut in jure cessio inter quos ea jure civili fieri possunt." According to this definition "Abalienatio" is of a Res Mancipi, a class of things determinate; and the mode of transfer is either by "traditio nexu" or by "in jure cessio." These two modes correspond respectively to the "mancipatio" and "in jure cessio" of Gaius (II.41), and accordingly mancipatio or the older term mancipium is equivalent to "traditio nexu": in other words mancipium was a nexus or nexum. Cicero (De Harusp. respons. c7) uses both words in the same sentence, where he speaks of various titles to property, and among them he mentions the Jus mancipii and Jus nexi. He may mean here to speak of the Jus mancipii in its special sense as contrasted with the Jus nexi which had a wider meaning; in another instance he uses both words to express one thing (Ad Fam. IV.30). According to Aelius Gallus, everything was "nexum" "quodcumque per aes et libram geritur;" and as mancipatio was effected per aes et libram, it was consequently a nexum. The form of mancipatio by the aes and libra continued probably till Justinian abolished the distinction between Res Mancipii and Res Nec Mancipi. It is alluded to by Horace (Ep. II.2.158), and the libra, says Pliny (XXXIII.3), is still used in such forms of transfer.

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. II. s16). A vendor therefore who had a doubtful title would not sell by mancipium, but would merely transfer by delivery, and leave the purchaser to obtain the Quiritarian ownership of the thing by usucapion (Plaut. Curc. IV.2.9, PersaIV.3.55). Accordingly Varro observes (De Re Rustica, II.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, this stipulation was not necessary. The terms of the contract were called Lex Mancipii, but it is not necessary to infer from the passage of Cicero (De Or. I.39), that the Lex or terms contained the penalty, but merely that it contained what the seller warranted (see Pro Murena, c2).

As to the application of Mancipatio to Testaments, see Testamentum.

It appears from what has been said that mancipium may be used as equivalent to complete ownership, and may thus be opposed to usus as in a passage of Lucretius that has been often quoted (III.985), and to Fructus (Cic. ad Fam. VII.29, 30). Sometimes the word mancipium signifies a slave, as being one of the Res mancipi: this is probably the sense of the word in Cicero (Top. 5) and certainly in Horace (Ep. I.6.39). Sometimes mancipia is used generally for Res mancipi (Ulp. tit. XI.27), unless Rem mancipi is the right reading in that passage. Mancipation no longer existed in the code of Justinian, who took away all distinction between Res Mancipi and Nec Mancipi. The ownership of all corporeal things was made transferable by Traditio with a justa causa.

The subject of Mancipium and Mancipatio is discussed by Corn. Van Bynkershoek, Opusculum de Rebus Mancipi et Nec Mancipi; and Puchta, Inst. II. § 238.


Thayer's Note:

a When Mr. Long gets going on a technical subject, he can be very rough on the reader. I therefore cast about for something simpler to understand, and found the following elegant and useful article on its own webpage; when it vanished offline, I wrote its author, Marcia Armstrong, and am delighted that I now have her permission and even encouragement to reproduce it here:

Ownership — Duality of Title and Possession

Res Mancipi and Res Nec Mancipi

In ancient Roman law, physical property became classified into two categories: "Res Mancipi" — things that required a mancipation; and "Res Nec Mancipi" — things that did not require a mancipation.

"Mancipium" or mancipation was a formal public ceremony required for recognition of conveyance in "title" of legal ownership to a thing (mancipatio — taking in hand). The ceremony included striking a scale with a copper ingot as a token of sale. Without this ancient ritual, no exchange had the sanction or protection of the law.

Another manner of acquiring legal title was cessio in iure (cession in court), by vindicatio. An individual claiming title against a possessor would physically claim the thing (or a part of it produced in court). If the possessor failed also to claim the thing by exceptio, the praetor would restore it to the individual claiming title.

This distinction between categories of things ceased in the Roman Law at the time of Justinian, but was carried forward in the development of English law.

Res Mancipi generally encompassed those properties most valuable to agriculture — land, houses, slaves and four-footed beasts of burden. Under Roman law, the list of Res Mancipi was irrevocably closed. In English law, the distinction was carried forward with the identity of Res Mancipi as "immovables" governed by the laws of "realty" and Res Nec Mancipi as "movables," chattel or goods, governed by the laws of "personalty."

Res Nec Mancipi did not require the ceremony of mancipium for conveyance, only simple delivery or traditio. Res Nec Mancipi were considered on a "lower footing of dignity" allowing for freer circulation of common objects of use and enjoyment. The list of Res Nec Mancipi could be expanded to accommodate new valued items. Transfer of ownership of Res Nec Mancipi was evidenced by physical "delivery."

Roman law also formally recognized the distinction between the incorporeal web of social relationships inherent in the concept of ownership, as well as the thing or object being "owned." "Tradition" applicable to Res Mancipi recognized two elements in conveyance of ownership: (1) the consent or intent to transfer ownership title to the thing; and (2) the physical delivery of the thing into the new owner's possession. Mancipation was the ceremony by which the incorporeal legal title was symbolically passed. Title to things not requiring mancipation was presumed to have passed with corporeal delivery.

© Marcia Armstrong


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