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invitas obligare nobis possumus, praeterquam si Praetor aditus permittit.

pel to furnish vadimonium to us against their will, save in cases where the Praetor allows them to be brought before him?.

1 That is to say, in order to se must first obtain leave from the Praecure their attendance at the trial by tor to summon them for the prelimimeans of a vadimonium the plaintiff nary proceedings.



(A). On Potestas, Dominium, Manus, and Mancipium.

Potestas means primarily right or domination over oneself or something external to oneself. In many passages of the sources it is used as synonymous with jus, and as equivalent to full and complete ownership.

The only place in the fragments of the XII. Tables where the word occurs is the following : “Si furiosus est, adgnatorum gentiliumque in eo pecuniaque ejus potestas esto” (Tab. 5, 1. 7); and what is there denoted by it is evidently a power of superintendence and direction. We may conclude then that potestas was not the archaic word expressing the combination of positive rights and authority possessed by the head of the household, the paterfamilias. Maine thinks that manus was the old word expressing this and all the other notions subsequently marked with the separate and distinctive appellations of dominium, potestas, mancipium, and manus. But whatever was the archaic term, and whether there was one at all or not, potestas in the classical jurists is the word used to express the rights and authority exercised by the paterfamilias over the persons of the familia, just as dominium denotes his power over the inanimate or unintelligent components of the same.

Mancipium, which originally means hand-taking (manu capere), is in its technical sense connected with a particular form of transfer called mancipatio, and stands in the sources, ist, for the mancipatio itself (see Gaius, iv. 131); 2nd, for the rights thereby acquired ; 3rd, for the object of the mancipatio, the thing to be transferred ; 4th, for a particular kind of transferable objects, viz. slaves, to whom it is applied, so says a law of the Digest (D. I. 5. 4. 3), because "ab hostibus manu capiuntur;" although the more probable reason for the application of the term is to be found in the fact that slaves were viewed by the Roman lawyers as mere things, and so capable of transfer from hand to hand.

The importance of the term mancipium, so far as regards the historical aspect of Roman law, lies in the fact that from its connection with the word manus we gather a correct idea of the ancient notion of property, which was in effect the dominion over those things only that could be and were actually transferred from hand to hand.

As potestas came gradually to bear a restricted meaning in the law sources, and instead of being a general term for authority of any kind began to signify authority over persons only, and those too such alone as were in the familia of the possessor of the potestas; so mancipium became a technical term implying the power exercised over free persons whose services had been transferred by mancipatio; and manus, originally almost identical with mancipium, was limited to the one case of power over a wife.

On the subject of mancipium read Mühlenbruch's Appendix on I. 12, in Heineccius' Syntagma, pp. 159, 160.

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