BOOK II. Part I. a Cf. § 51, and first extract above. concordantia matrimonia iure patriae potestatis perturbentur; quod tamen sic erit adhibendum, ut patri persuadeatur, ne acerbe patriam potestatem exerceat.-D. 43, 30, I pr., §§ 1, 5.' Id. Deinde ait praetor: SI LVCIVS TITIVS IN POTESTATE LVCII TITII EST, QVO MINVS EVM LVCIO DVCERE LICEAT, VIM FIERI VETO.-1. 3 pr. eod.2 (3) By 'praeiudicium,' when the question is, whether the patria potestas exists or not." As against the child himself, notice is taken of the patria potestas by 'extraordinaria cognitio,' in respect of which direct compulsion is used where necessary. Hoc autem interdictum competit non adversus ipsum filium, quem quis ducere velit, sed utique debet esse is, qui eum interdicto defendat. Ceterum cessat interdictum, et succedere poterit notio praetoris, ut apud eum disceptetur, utrum quis in potestate sit, an non sit.-1. 3, § 3 eod.3 1 The praetor says: 'As to the man or the woman who is under the power of L. T., if he or she be within thy control, or it have happened by thy fraud that he or she was not within thy control, thou must produce him or her.' § This interdict is set forth against the person from whom any one claims the production of such person as he alleges is under his power.-§ If any one desire to withdraw his daughter who has been married to me, or claims her production, will a plea have to be granted against the interdict, if perchance the father wishes to break up a marriage that is harmonious, and perhaps cemented by children? It is a positive maxim of our Law that essentially harmonious marriages cannot be disturbed by the right of patr. pot.; this, nevertheless, must be so applied that an endeavour be made to induce the father to make no harsh use of his patr. pot. 2 Afterwards the praetor says: 'If L. T. is under the power of L. T., that L. T. be not allowed to take him away, I forbid his exerting force.' 3 But this interdict does not attach against the son himself that a man desires to take away, but of course there must be a person to defend him against the interdict. But the interdict is determined, and the inquiry by the praetor can then ensue, so that before him the discussion is as to whether a person is under power or not. Paul. Si filius in potestate patris esse se neget, praetor cognoscit ita, ut prior doceat filius, quia. se liberum esse quodammodo contendit. -D. 22, 3, 8.' $55. MANCIPIUM. 'Mancipium' is that servile relation of a Roman α , BOOK II. Part I. dicio cf. Gai. iii. 104. citizen in a strange familia which, without assuring a Or perhaps a him rights in it, makes him a dependent member of it, Latinus. like the slave in relation to Property Law. Accord-Servilis coning to the later juridical view of the Roman jurists, the 'persona in mancipio' retains 'conubium' and the rights arising from it, and in this respect stands to his master as an extranea persona,' but he is himself not 'suae potestatis,' and is incapable of exercising domestic rights of power, which are therefore suspended for the time being. As regards commercium, the Ibid. i. 135. 'persona mancipio' takes a position towards the master similar to that of the adrogatus.' d Liv. 41, 8: Lex sociis nominis Latini, qui stirpem ex sese domi relinquerent, dabat, ut cives Romani fierent. Ea lege male utendo alii sociis, alii populo Romano iniuriam faciebant: nam ne stirpem domi relinquerent, liberos suos quibusquibus Romanis in eam condicionem, ut manumitterentur, mancipio dabant, libertinique cives essent.2 Gai. i. § 123: a parentibus vel a coemptionatoribus mancipati mancipataeve servorum 1 If a son say that he is not under patr. pot., the praetor upon inquiry rules that the son first show this, because he maintains that he is in some way or other independent. 2 The statute granted to allies of the Latin name, who left at home their own offspring, that they should become Roman citizens. By misuse of that lex some did harm to the allies, others to the Roman people; for lest they should leave their offspring at home, they gave their children as slaves to any Roman whatever, upon condition that they were manumitted and became citizens that were libertini. d Ibid. ii. 90 iv. 80. a BOOK II. loco constituuntur, adeo quidem ut ab eo, cuius in mancipio sunt, neque hereditatem neque legata aliter capere possint, quam si simul eodem testamento liberi esse iubeantur, sicuti iuris est in persona servorum.1 Ibid. § 141: In summa admonendi sumus, adversus eos quos in mancipio habemus, nihil nobis contumeliose facere licere: alioquin iniuriarum actione tenebimur." Mancipium' arises by exercise of the right of sale which belongs to the pat. fam. of some person, and so by mancipatio of the 'persona subiecta' to a third person. At first indeed the 'mancipii causa' was always originated as a real and continuous relation of Power, through the sale of the child by the pat. fam. into foreign servitude, partly for the sake of personal Gai, i. 118 gain, partly for the maintenance of such child." In later Law mancipatio occurs— Paul. Sent. v. b Cum pacto (1) for the most part merely 'dicis gratia,' in view of creating or of dissolving a domestic relation of Power, so that the 'mancipii causa' is only a momentary relation. Gai. ibid. Ac ne diu quidem in eo iure detinentur homines, sed plerumque hoc fit dicis gratia uno momento; nisi scilicet ex noxali causa mancipentur.3 (2) Mancipatio, however, may occur exceptionally of set purpose, as in the 'noxae deditio;' 'd the man 1 Persons of either sex mancipated by ancestors or by coemptionatores are set in the position of slaves to such an extent that not even can they take either an inheritance or legacies from him in whose mancipium they are, unless by the same testament they are bidden to be free, as the rule is in the case of slaves. 2 We must finally observe that we are not allowed to treat with indignity those whom we hold in mancipio; otherwise we shall be liable to an action for injuries. Indeed, men are not kept in this condition long, but in general it happens for form's sake, for a moment, unless, that is, they are mancipated because of their tortious act. cipium is consequently originated as a permanent condition. Gai. iv. § 79: Cum autem filius familias ex noxali causa mancipio datur, diversae scholae auctores putant, ter eum mancipio dari debere, quia lege XII tabularum cautum sit, ne filius de postestate patris aliter exeat, quam si ter fuerit mancipatus: Sabinus et Cassius ceterique nostrae scholae auctores, sufficere unam mancipationem crediderunt, et illas tres legis XII tabularum ad voluntarias mancipationes pertinere.' Mancipium' is terminated by remancipation and by release, but not by the death of the master. Gai. i. §§ 138-140: Ii qui in causa mancipii 1 But when a fil. fam. is given up by mancipation, on the ground of a wrongful act, the leaders of the opposite school consider that he ought thrice to be given by mancipation, because by a law of the Twelve Tables it has been provided that, unless a son be thrice mancipated, he shall not pass out of paternal power. Sab. and Cass. and the other leaders of our school supposed that one mancipation is enough, and that the three mancipations derived from the Twelve Tables relate to such as are voluntary. 2 Inasmuch as those in the condition of mancipia are regarded as in the position of slaves, they become sui iuris when manu BOOK II. Part I. BOOK II. Coll. ii. 3 Per hominem liberum noxae deditum si tantum adquisitum sit, quantum damni dedit, manumittere cogendus est a praetore qui noxae deditum accepit.-(Papin.) ' § 56. CAPITIS DIMINUTIO. The legal personality, i.e., in general the civil existence, of the civis Romanus, especially the personality of the individual under Private Law as bearer of a concrete aggregate of rights, is designated by the expression 'caput.' The caput of the individual is ana § 33. nexed to his status," that is, conditioned and determined by three prerequisites: Freedom, Citizenship, I.e., belonging Family position. Every change in one of these three relations personally experienced by the civis Romanus sona sui iuris, also operates destructively upon his existing aggregate of rights, and, as the destruction of his existing personality, is called 'capitis di- [or de] minutio.' According as the freedom or the citizenship of which that is the condition, or the family position which is conditioned by the citizenship, alone as prerequisite of the legal position is lost, a distinction is made between 'capitis to a certain familia as 'per or alieno iuri subiecta.' mitted by vindicta, census or testament. Nor does the l. Aelia Sentia apply to their case; nay more, they may obtain freedom by the census even against the will of the person who holds them in mancipio, except him whom the father has given by mancipium upon condition that he is remancipated; for in such a case the father is considered in some way to reserve his own power from the very fact that he receives him back from mancipium; and it is said, too, that he cannot obtain freedom by the census against the will of the person holding him in mancipio, whose father gave him by mancipation upon the ground of a wrongful act; for instance, when the father has on his account been condemned in an action of theft, and has surrendered him to the plaintiff, for the plaintiff holds him in lieu of money. 1 If any one have obtained through a freeman surrendered for an injury as much as the injury that was done amounted to, the praetor who received the man so surrendered must require such person to emancipate him. |