EMANCIPA´TIO
EMANCIPA´TIO was an act by which the potestas of a paterfamilias over a person in his power was voluntarily dissolved by him, and it was so called because it was effected in the guise of a sale with all the ancient solemnities of the aes et libra (mancipatio). One of the rights of a paterfamilias under the archaic law of Rome was that of making money out of his children by selling them, and originally he might sell the same child as often as he pleased, and as opportunity occurred through the rights of the last purchaser being extinguished; but soon this came to be thought inhuman, and the Twelve Tables enacted that if a father sold his son three times, the latter should be free from his potestas ( “si pater filium ter venumdabit, filius a patre liber esto,” Gaius, 1.132; cf. Dion. Halic. Antiq. 4.27). This rule was laid hold. of as providing a means of voluntarily releasing children from patria potestas, which before seems not to have been possible; for the pater was never able to barely abdicate his rights (Dion. Halic. 2.26.6; Cod. 8.47, 6), and a person in potestas could not be made free by an ordinary manumission, like a slave, because the potestas itself was not a right of property, but in the nature of imperium. The process of emancipating a son, which is fully described by Gaius (1.132), was as follows. The pater sold him by mancipatio to a third person, who then, in accordance with an agreement to that effect, express or implied, manumitted him by vindicta (Lactantius, Div. Inst. 4.3, 17). This. simply restored him to the patria potestas, owing to the rule of the Twelve Tables. The operation was repeated, with the same result. By being mancipated a third time, however, the son was released from potestas, but he did not become free, being in mancipio (quasi-slave) to the purchaser; but the latter had usually bound himself by agreement (fiducia) to remancipate him to the pater, which being done the father simply manumitted him by vindicta (being no longer his paterfamilias), whereby the son became free, and the father his quasi-patron and also his tutor, legitimus if the child was impubes (Gaius, Epit. 1.6, 3). If the final act of manumission was performed by the purchaser, and not by the father, these rights and functions devolved on the former. For the emancipation of a daughter or any other descendant, only one sale was required, the Twelve Tables having spoken of these only in the case of a filius (Ulpian, Reg. 10, 1).The legal effects of emancipation were two. Firstly, the emancipated person became sui instead of alieni juris; thereby, if a male, he acquired capacity to exercise himself patria potestas, and in any case became able to bring actions. in his own name, make a will, and own property. As a general rule he was entitled to retain his peculium absolutely, unless expressly denied him (Fragm. Vat. 255, 261), and the peculium known as adventicium became his originally in any case: Constantine, however, enacted that the pater should have the right of retaining a third of it, for which Justinian substituted a usufruct or life interest in a half, “quasi pro praemio emancipationis” (Cod. 6, 61, 6, 3). Secondly, he underwent capitis deminutio (minima), the agnatic tie between him and his family being broken; so that neither had he any claim, by the civil law, to succeed those who belonged to it if they died intestate, nor had they any title to inherit from him. In fact, by the old jus civile, the only point in which an emancipated child was held to have any connexion with his old family was that, if the final act of manumission had been performed by the paterfamilias and not by the person to whom he had been mancipated, the pater became quasi patron (and possibly tutor), and succeeded the child if the latter died intestate leaving no sui heredes. When, however, the law of intestacy came to be modified by the [p. 1.727]praetorian bonorum possessio introduced through the Edict, emancipated children and those who were in the pater's power at his death (sui heredes) were placed on the same footing, under the title of liberi, in respect of succession to the father's property on his dying intestate; and by enactments of Anastasius and Justinian, an emancipatus acquired a similar right of succeeding in his due place to other non-agnatic relatives, among whom might be even brothers, sisters, uncles and aunts. A further recognition (of far earlier origin) of the actual relationship existing between father and child, even after emancipation, is to be found in the rules as to testamentum inofficiosum (Inst. 2.18: see TESTAMENTUM).
The Emperor Anastasius (A.D. 491-518) introduced a new and alternative mode of emancipation by imperial rescript, in reply to a petition from the paterfamilias, which was chiefly employed where the father and child resided in different places, so that the old form per aes et libram was inapplicable (Cod. 8, 49, 5). Justinian, having abolished the old distinction between res mancipi and nec mancipi, and with it mancipation, the form of conveyance appropriate to the former, introduced a new mode of emancipation in lieu of the old one, viz. a declaration made by the pater before a magistrate, of which a record was preserved in the official acta of the court (Cod. 8, 49, 5, 6; Inst. 1.12, 6); but the child's consent was necessary (unless he was under seven years of age, or had come into potestas by adrogation, Cod. 8, 48, 9; Inst. 1.11, 3), a rule which was as least as old as Paulus (Sent. rec. 2.25, 5). The pater might not bargain for any services to be rendered by the child in consideration of the emancipation (Dig. 37, 12, 4; 37, 15, 10): but he might emancipate grandchildren, retaining their father in his power, or vice versâ (Inst. 1.12, 7). As a general rule a child in power, whatever his age, could not compel the pater to emancipate him against his will (Dig. 1, 7, 31),; the only exceptions being where he had been adrogated while impubes and found the adrogation prejudicial to him (Dig. 1, 7, 32), and where property had been left to and accepted by the pater on the express condition of emancipating him. (Dig. 1, 7; Cod. 8, 49; Gaius, 1.132 sq.; Ulpian, Reg. 10.1; Paulus, Sent. rec. 2.25, 2 sq.）
[J.B.M]