has the power of compelling the coemptionator to remancipate her to any one she pleases, whereas the latter cannot compel him to do this any more than a daughter can her father. A daughter, however, has no means of compelling her father to emancipate her even if she is only such by adoption, whereas a wife by sending a message of divorce can compel her husband to release her from his hand, just as if they had never been married.
§ 138. As persons in mancipation are in the position of slaves, manumission by fictitious vindication, by entry on the censor’s register, by testamentary disposition, are the modes by which they acquire independence.
§ 139. But to them the lex Aelia Sentia has no application: no age of the person manumitting or the person manumitted is required; the manumission is subject to no proviso against fraud on the rights of patron or creditors, nor even to the numerical limitation of the lex Fufia Caninia.
§ 140. But even though the assent of the holder in mancipation is withheld, freedom may be acquired by entry on the register of the censor, except when a son has been mancipated by a father with a condition of remancipation, then the father is deemed to have reserved in a way his own power in consequence of the condition that he is to have him back in mancipation; nor can liberty be acquired without the assent of the holder in mancipation by entry on the censor’s register when a delinquent son has been surrendered by his father in consequence of a noxal suit; when, for instance, the father has been condemned in an action for a theft committed by the son, and has by mancipation surrendered his son to the plaintiff, for in this case the plaintiff holds him in lieu of pecuniary damages.
§ 141. Finally, it is to be observed that contumelious treatment of a person held in mancipation is not permitted, but renders liable to an action of outrage; and the status generally is not persistent, but merely formal and momentary, except when it is the consequence of surrender in lieu of damages in an action of trespass.
§ 128. Relegation was a milder form of punishment than deportation, and involved no loss of civitas nor of domestic rights, Inst. 1, 12, 2.
§ 129. Postliminium is the recovery of rights by a person returned from captivity, or the recovery of rights over a person or thing recovered from hostile possession. The word postliminium seems to be derived from pot, the root of potestas or possessio, and limen or stlimen = ligamen, and therefore would denote the bridging over of the interval of captivity by a fiction of continued capacity or possession, or a doorway is bridged over by a lintel (limen).
§ 130. In imitation of the ancient law Justinian enacted that certain dignities should release from patria potestas; for instance, patriciatus and the episcopate, the latter because it made a man spiritual father of all mankind, Novella, 81.
§ 131. The Latini or members of coloniae Latinae were an intermediate class between cives and peregrini. They differed from peregrini in that they had commercium, i. e. capacity of Quiritary ownership with its incidents, and they differed from cives in not having connubium, and consequently being incapable of patria potestas, Cic. Pro Caecina, 35. Cf. § 22, comm. A Roman citizen could only become a Latin with his own consent. Qui cives Romani in colonias Latinas proficiscebantur, fieri non poterant Latini ni erant auctores facti nomenque dederant, Cic. De Domo, 30. ‘Roman citizens who went to Latin colonies did not lose their citizenship without voluntary enrolment among the colonists.’ See also Cic. Pro Balbo, 11.
§ 132. The epitome of Gaius, 1, 6, 3, which throws light on this passage, mentions as present at an emancipation, besides the five witnesses and libripens, a seventh person called antestatus, who is also mentioned in the bronze tablet referred to in the remarks on pignus and fiducia. Book 3, §§ 90, 91, comm. His duty may have been to ask the witnesses whether they were bearing witness to the transaction (antestari). Cf. Roby, Private Law, pp. 180, n. 2, 423, n. 3.
The vindicta or wand used in manumission, as already stated, was the rod or verge symbolizing a lance carried by the parties in a real action, 4 § 13. The status of freedom (libertas) whether as opposed to slavery or to bondage (mancipii causa) was a real right (jus in rem). and therefore a subject to be contested in a vindicatio. Manumission by vindicta was a collusive vindicatio, in other words, an in jure cessio. Cf. Roby, 1, p. 26, n. 1.
The epitome of Gaius (l. c.) calls the person, to whom the son was mancipated by pater naturalis, pater fiduciarius, which implies that the mancipation was accompanied by a fiducia or declaration of trust. The trust would be that the pater fiduciarius should make default or confess in the subsequent in jure cessio.
§ 134. Assuming that in adoption, as in emancipation, the person to whom the son was mancipated was called pater fiduciarius, we find in adoption three fathers in the field, pater naturalis, pater fiduciarius, and pater adoptivus. Remancipation to the natural father added a stage to the process; but is described as more convenient, because it reduced the number of actors from three to two; for it enabled the part of pater fiduciarius to be played by pater adoptivus. It appears from § 135 (cf. however § 141) that though the status of bondage was purely formal, yet perhaps to give an air of reality to the drama, the status was sometimes made to have a certain duration. So when a prince is advanced from the rank of private to that of general, a certain interval is interposed between the intermediate promotions for the sake of decorum, though, the whole proceeding being unreal, all the steps, if the authorities were so disposed, might be compressed into a single day. Ihering, § 46.
The status of paterfamilias or of filiusfamilias being, like other kinds of status, a real right, the claim of a person as filiusfamilias was a matter to be contested in a real action or vindicatio brought against the person in whose possession he was. This would seem the more obvious in primitive times, when probably no distinction was made between patria potestas and dominica potestas, i. e. between paternal power and absolute proprietorship. Such vindicatio was sometimes a matter of contentious (not voluntary) jurisdiction, i. e. of genuine litigation. Cf. Dig. 6. 1, 1, 2, where we are told that the ground of making a claim of this kind must be particularly specified (adfecta causa) in the vindication. The ordinary mode of judicially determining the status of a child in case of dispute was by a praejudicium, 4 § 44, comm. The father could compel any one, who had possession of his child, to produce him by the interdictum de liberis exhibendis or de liberis ducendis 4 §§ 138-170, comm. In case of dispute between paterfamilias and filiusfamilias inter se, recourse might be had to the extraordinaria cognitio of the magistrate. Sohm’s Inst. § 101.
Justinian simplified the formalities of emancipation and adoption. He allowed the former to be accomplished by a simple declaration of the father before a competent judge or magistrate (Emancipatio Justinianea); and the latter after appearance of all the parties before such a judge, insinuatio, i. e. a memorandum of the transaction in the public records (actis intervenientibus) being in both cases required. Emancipation by imperial rescript had been previously instituted by the Emperor Anastasius (Emancipatio Anastasiana). Imperial rescript was required for effecting an arrogation.
In English law children are enfranchised, and the limited power of the father over their person and property is terminated by two events which did not operate emancipation in Roman law, marriage and arrival at years of discretion, that is, attainment of majority by the completion of twenty-one years of age. At these points, under English law, the empire of the father or other guardian gives place to the empire of reason; whereas neither marriage nor majority released the Roman son or daughter from potestas.
§ 136. Cf. §§ 108-115 b, comm. Q. Aelius Tubero and Paulus Fabius Maximus were consuls b. c. 11, the year in which the office of flamen dialis was re-established. This cannot therefore be the law a. d. 23 referred to by Tacitus, Ann. 4, 16 (see note to Muirhead’s Gaius).
§ 137. Dissolution of marriage (divortium) could be effected either by the consent of both parties or by the act of one. The message of repudiation (repudium) contained the formula, Tuas res tibi habeto, ‘Take away thy property.’ Mimam illam suam suas res sibi habere
