In several write-ups about the Roman law and institutions of Roman law, mention has been made of mancipatio, res mancipi ac nec mancipi and mancipation. In this write-up we look at what constituted res mancipi, why this was important to the Romans, and what role the procedure of mancipatio played in the Roman law and society.
At the outset it must be understood that the process of mancipatio is of very ancient origin, and it developed against the background of the early Latin agrarian community, which regarded as extremely valuable the Latin land on which they lived, beasts of draught and burden, certain praedial servitudes, slaves and certain agricultural implements. Although scholars are divided on this, the reason for this seems obvious: The people held most valuable those things upon which their livelihood depended. The result was that they developed a highly sophisticated method of transferring rights in respect of these things, in order to ensure that there was no uncertainty regarding the ownership or diposition of these particular commodities.
In our modern system, we normally register ownership of land, and the deed witnessing the fact is safely stored in a place where it is unlikely to be lost or damaged. The same happens in respect of vehicles, which are normally registered. In the absence of a paper based system of providing proof of a legal act, the Romans developed mancipatio, which was designed to ensure the optimum level of proof of the act so contracted.
The Roman system of law developed most likely from its early origins in the religious system, when the ius (= law) was hardly to be distinguished from the fas (= the religious tenet). All knowledge of law and religion was originally held by the priests, who fullfilled a very important function in the everyday life of the average Roman. Religion was interwoven into the daily life of the ancient Romans in a manner which is difficult for us moderns to comprehend. Virtually nothing would be done, not even a short journey embarked upon, if the priest indicated that the auspices were unfavourable. The priests developed a very sophisticated body of rules which governed the way in which virtually every occurrence was interpreted to see what the gods decreed or intended for the individual. In this manner, the institution of mancipatio developed as a highly formal and formalistic ritual which was used to perform certain legal acts as diverse as adoption to transfer of ownership of land.
Etymologically the words mancipi and mancipatio are a combination of the noun manus (= hand) and the verb capio (= I take, grasp). Mancipatio was a procedure which enabled the person to take control of the object of the act, be it land, a slave or whatever. We shall see a bit later exactly what jural acts were contracted by way of mancipatio.
Only Roman citizens, and later also non citizens upon whom the ius commercii had been conferred, i.e. the right to engage in commerce (see Roman personhood), were allowed to perform mancipatio. The result was that (initially) only Roman citizens could obtain the rights transferred by way of the procedure. Gaius1explains how the procedure worked: In the presence of no less than five witnesses, all Roman citizens of impeccable standing, above the age of puberty (i.e. adults), as well as a scale holder (libripens) who must similarly be a citizen above puberty and beyond any reproach, the party taking in mancipation (mancipatee) states as follows while holdling a bronze ingot (= the currency in ancient Italy): “HUNC EGO (DESCRIBES WHAT IT IS) EX IURE QUIRITIUM MEUM ESSE AIO ISQUE MIHI EMPTUS ESTO HOC AERE AENEAQUE LIBRA” (= I state that this (whatever it is he receives) is mine by virtue of the Quiritary (ancient) law, and be he purchased by me with this bronze ingot and this bronze scale). Thereupon he strikes the scale as symbol of weighing the currency (minted money only became the currency in the form of coins of predetermined denominations much later when Rome had become a republic). The bronze is then given to the transferor (mancipator) as symbolic price for the object. The scale is symbolic of the fact that in the earliest times, before currency, the bronze had to be weighed to establish its value.
The law required that the thing transferred had to be present, but in the case of land, it was usually represented by a lump of earth from the particular piece of land. The reason for this is that the mancipatee expresses his right to the thing by grasping it during the formal procedure followed, hence the word mancipatio, to take with the hand. It is generally believed among scholars that at its earliest (and this survived until fairly late in the development of the institution), the whole procedure was overseen by a priest, and inbued with a definite sacral character. This is evidenced by the need for the five witnesses, who would serve as proof of the act in the event of anyone questioning the mancipatee’s rights at a later stage. It would be unlikely that all five witnesses would have died or moved away, thereby making it possible to prove the act of transfer.
Other things (res nec mancipi) such as for instance animals not used as beasts of burden or draught, e.g. lions, elephants, dogs or cats, could be transferred simply by handing over to the other person. No formalities were required. In later development (although already from early in the history of Roman law), mancipatio also came to be used for other important acts, which we will briefly look at a bit later. Alongside mancipatio Roman law also developed a procedure called in iure cessio, transfer before the law, where res nec mancipi and well as res mancipi were transferred before a judicial official as proof of the act. It developed primarily to accommodate the increasing number of foreigners in Rome who were precluded from participating in mancipatio, but who wished to acquire rights in res mancipi or to perform certain formal legal acts.
Mancipatio was primarily used to transfer ownership in land and building on Italian soil, slaves, beasts of burden and draught and the old praedial servitudes of iter (the right to walk over the land of another), actus(the right to drive animals over the land of another), via (the right to ride over the land of another) and aquaeductus (the right to obtain on and channel water over the land of another). Quite early on mancipatio was also used to perform other important acts in the Roman legal system, such as adoptio (where an alieni iuris son was adopted into the patriapotestas of another paterfamilias),2 emancipatio (whereby a paterfamilias could free a son from his patriapotestas by symbolically mancipating him three times) and coemptio (in terms of which the bride was transferred into the patriapotestas of her husband).3 Mancipatio was also used to make an oral will, called the testamentum per aes et libram (the will by way of the bronze and scales), which was made by using the same procedure described above, but formally stating who the heir was to be. This procedure was later substituted for written wills as writing and paper became more prevalent.
Because mancipatio was a highly formal act, the underlying causa for the transfer was of no importance whatsoever, and the transfer was valid regardless of any taint in the underlying cause. If A received by way of mancipatio based on fraud committed by him, the transfer was nevertheless valid. This is called an independent system of transfer. Even today in South Africa and many other countries that follow the Roman-Dutch common law, this is so. A transfer once effected, can only be reversed on very narrow grounds (of which fraud now is one). The reason for this is that the formality of the procedure is designed to create certainty in law as to the position. If the position after mancipatio could generally be attacked on any grounds, it would give rise to difficulties in the probative value of the act contracted.
Mancipatio as well as in iure cessio disappeared towards the end of the principate as the synallagmatic contract developed, and especially after 212 CE when the emperor Caracalla decreed that all inhabitants of the empire were thenceforward citizens. Justinian no longer recognizes either of the two instituions.
1 Inst. I 113, 119.
2 See Roman paterfamilias.
3 Some classes could not enter into forms of marriage which would automatically vest the husband with manus over the wife, and therefore they followed a procedure of mancipatio to this end.