Emancipation of descendants. 45 132. Emancipatione quoque desinunt liberi in potestatem parentium esse. sed filius quidem tertia demum mancipatione ceteri vero liberi, sive masculini sexus sive feminini, una mancipatione exeunt de parentium potestate: lex enim XII tantum in persona filii de tribus mancipationibus loquitur, his verbis: SI PATER FILIUM TER VENUMDABIT, FILIUS A PATRE LIBER ESTO. eaque res ita agitur. mancipat pater filium alicui: is eum vindicta manumittit: eo facto revertitur in potestatem patris. is eum iterum mancipat vel eidem vel alii; set in usu est eidem mancipari: isque eum postea similiter vindicta manumittit: quo facto rursus in potestatem patris sui revertitur. tunc tertio pater eum mancipat vel eidem vel alii; set hoc in usu est, ut eidem mancipetur: eaque mancipatione desinit in potestate patris esse, etiamsi nondum manumissus sit, set adhuc in causa mancipii [lin. 24]. 132. Descendants also cease to be in the potestas of ascendants by emancipation'. But a son indeed ceases to be in his ascendant's potestas after three mancipations, other descendants, male or female, after one: for the Law of the Twelve Tables' only requires three mancipations in the case of a son, in the words: "If a father sell his son three times, let the son be free from the father." Which transaction is thus effected: the father mancipates the son to some one or other, who manumits him by vindicta3: this being done, he returns into his father's potestas: he mancipates him a second time, either to the same man or to another, but it is usual to mancipate him to the same: and this person afterwards manumits him by vindicta in the same manner, which being done he returns again into his father's potestas: then the father a third time mancipates him either to the same man or to another; but it is usual to mancipate him to the same: and by this mancipation he ceases to be in his father's potestas, although he is not yet manumitted, but is in the condition called mancipium*. c. 30; pro Balbo, c. 11-13. In fact the direct object of the practice was to enable the new colonists to take up the civitas of the place they were going to colonize, and so by renouncing the civitas or domicile of origin, escape from the patria potestas. It is important to notice that this was done, and it may be presumed could only be done, by permission and au- 3 I. 17. 4 He was not generally manumitted out of mancipium, for then, as a vus interim hostium fiat, pendet ius liberorum propter i liminii, quia hi qui ab hostibus capti sunt, si reversi omnia pristina iura recipiunt. itaque reversus habebi in potestate. si vero illic mortuus sit, erunt quidem iuris; sed utrum ex hoc tempore quo mortuus est a parens, an ex illo quo ab hostibus captus est, dubi Ipse quoque filius neposve si ab hostibus captus fue dicemus propter ius postliminii potestatem quoque (130) Praeterea exeunt liberi vir patris potestate si flamines Diales inaugurentur sexus si virgines Vestales capiantur. (131.) Olir tempore populus Romanus in Latinas regiones cebat, qui iussu parentis profectus erat in Latin patria potestate exire videbatur, cum qui ita civit serant acciperentur alterius civitatis cives. suspenso esse. although for the while he becomes a slave of regarded as having never been absent. See D. 45. 15, especially 11. 4 and 12, where the technicalities of the subject are discussed and examined. 1 1 Justinian decided they should be 46 Emancipation of descendants. 133. Liberum autem arbitrium est ei qui filium et ex eo nepotem in potestate habebit, filium quidem de potestate dimittere, nepotem vero in potestate retinere; vel ex diverso filium quidem in potestate retinere, nepotem vero manumittere; vel omnes sui iuris efficere. eadem et de pronepote dicta esse intellegemus. 134. Praeterea parentes liberis in adoptionem datis in potestate eos habere desinunt; et in filio quidem, si in adoptionem datur, tres mancipationes et duae intercedentes manumissiones proinde fiunt, ac fieri solent cum ita eum pater de potestate dimittit, ut sui iuris efficiatur. deinde aut patri remancipatur, et ab eo is qui adoptat vindicat aput Praetorem filium suum esse, et illo 133. He who has in his potestas a son and a grandson by that son, has unrestrained power to dismiss the son from his potestas and retain the grandson in it; or conversely, to retain the son in his potestas, but manumit the grandson; or to make both sui juris. And we must bear in mind that the same principles apply to the case of a great-grandson. 134. Further, ascendants cease to have their descendants in their potestas when they are given in adoption: and in the case of a son, if he be given in adoption, three mancipations and two intervening manumissions take place in like manner as they take place when the father dismisses him from his potestas that he may become sui juris. Then he is either remancipated to his father, and from the father the adoptor claims him before the Praetor as being his son', and the father putting in no person in mancipium is in a servile who manumitted him out of potestas had, however, claims on his inheritance, but claims not so extensive as those over that of an emancipated slave. The friendly plaintiff spoken of above would in most cases be the actual father, in order to keep the property in the family. 1 This is the "cessio in jure," mentioned above: the father has the son in mancipium, but the claimant demands potestas over him. The father collusively allows judgment to go against himself, and thus the claimant obtains a more extensive power than the father possesses at the time the cessio is made. Hence the process resembles a Recovery in old English Law, where although the Emancipation of descendants. 47 contra non vindicante a Praetore vindicanti filius addicitur, aut iure mancipatur patri adoptivo vindicanti filium ab eo apud quem is tertia mancipatione est: set sane commodius est patri remancipari. in ceteris vero liberorum personis, seu masculini seu feminini sexus, una scilicet mancipatio sufficit, et aut remancipantur parenti aut iure mancipantur. Eadem et in provinciis aput Praesidem provinciae solent fieri. (135.) Qui ex filio semel iterumve mancipato conceptus est, licet post tertiam mancipationem patris sui nascatur, tamen in avi potestate est, et ideo ab eo et emancipari et in adoptionem dari potest. At is qui ex eo filio conceptus est qui in tertia mancipatione est, non nascitur in avi potestate. set eum Labeo quidem existimat in eiusdem mancipio esse cuius et pater sit. utimur autem hoc iure, ut quamdiu pater eius in mancipio sit, pendeat ius eius: et si quidem pater eius ex mancipatione manumissus erit, cadit counter-claim, the son is assigned by the Praetor to the claimant, or he is mancipated in court to the adopting father, who claims him as son from that person with whom he is left after the third mancipation. But the more convenient plan is for him to be remancipated to his father. In the case of other classes of descendants, whether male or female, one mancipation alone is sufficient ', and they are either remancipated to their ascendant, or mancipated in court (to a third person). In the provinces the same process is gone through before the governor thereof. 135. A child conceived from a son once or twice mancipated, although born after the third mancipation of his father, is nevertheless in the potestas of his grandfather, and therefore can be either emancipated or given in adoption by him. But a child conceived from a son who has gone through the third mancipation, is not born in the potestas of his grandfather. Yet Labeo thinks that he is in the mancipium of the same man as his father is: whilst we adopt the rule, that so long as his father is in mancipium, the child's rights are in suspense, and if indeed the father be manumitted after the tenant had only a limited interest, yet the demandant claimed and got by default of the tenant's warrantor a fee simple. I. 132. 21. 89. 3 "In tertiâ mancipatione." The preposition in implies that he has gone through the form of mancipation, but not yet received manumission, he is in the third mancipation. |