CASE 155: The Decision to Emancipate
D. 1.7.28 (Gaius, Institutiones 1.133)
Liberum arbitrium est ei, qui filium et ex eo nepotem in potestate habebit, filium quidem potestate demittere, nepotem vero in potestate retinere: vel ex diverso filium quidem in potestate retinere, nepotem vero manumittere: vel omnes sui iuris efficere.
eadem et de pronepote dicta esse intellegemus.(Gaius in the first book of his Institutes)
When a person has in his power a son and through him a grandson, it is his free choice whether to release the son from power while retaining the grandson in power; or, conversely, to retain the son in power but free the grandson; or to make all of them sui iuris. And we understand the same rules to apply to a greatgrandson.
1. The Process. Emancipation begins in the same way as the ordinary adoption process (Case 149): for a son, three fictional sales are used to break patria potestas; and for all other children-in-power, one sale (Gaius, Inst. 1.132; Tit. Ulp. 10.1). Unfortunately, the text of Gaius breaks off just before describing the next step, but it can be restored: the child is remancipated to the pater, who carries out a third manumission that makes the child a free sui iuris Roman. For emancipation, there seems to be no participation by any government official. Was that wise?
2. Who Decides? Does this Case (restored as Gaius, Inst. 1.133) suggest that a pater familias had total freedom to decide about emancipating a child in his power? It is clear that a child could not force his father to emancipate him (Marcian, D.
1.7.31). But what if the child was opposed to being emancipated? Our sources are poor on this point, although a late imperial text (Paul, Sent. 2.25.5) says unequivocally: “A son-in-power is not forced to be emancipated against his will.” But this text may reflect postclassical law; a rescript of Anastasius, for instance, requires that a child clearly consent to emancipation (C. 8.48.5; A.D. 502). By contrast, at least in relation to adoption, Justinian asks only that the child not be openly opposed to it; see the Discussion on Case 149.3. Was Emancipation a Privilege or a Punishment? Unfortunately, there is no easy answer to this question. We do know that it was not unusual for fathers to provide their emancipated children with some means of support, perhaps most commonly their peculia. For example, Papinian (D. 39.5.31.2 = Frag. Vat. 255; compare 260) mentions a man who gave his daughter-in-power some slaves and then did not take away her peculium when he emancipated her; this ex post facto gift is irrevocable. But was this an act of kindness or just a minimal provision to make emancipation viable for the child? In any case, do you think that many Roman children-in-power would have welcomed the chance to escape from patriapotestas? We do have numerous legal and literary texts mentioning fathers who were induced by the terms of a will to emancipate children (“I leave a legacy of 100,000 sesterces to Sempronius if he frees his son from his power”); most frequently, the testators are ex-wives who are the childrens mothers. Why might they have sought this?
4. The Effects of Emancipation. The principal result is that the child is no longer in a fathers power (Case 154) and the agnatic tie connecting him with other members of his former family is broken; for example, if a pater emancipates one of his two sons, thereafter neither of them has the agnatic right to be appointed as guardian to the other (Gaius, Inst.
1.163). Originally, the emancipated child was, as it seems, legally estranged from his former family. However, in classical law this harshness was gradually eased, particularly as concerns the right of the emancipated person and his former family to inherit from each other; this development is discussed at length in Chapter IV, see especially Case 162. The result, for emancipated children, was a family regime that somewhat resembles our own: usually by their late teens or early twenties, children become legally and financially independent of their parents in modern Western societies, but reciprocal rights of inheritance remain, often accompanied by continuing strong affective relationships. Be alert, however, to important differences in detail.D. 10.2.50 (Ulpianus libro sexto Opinionum)
Quae pater filio emancipato studiorum causa peregre agenti subministravit, si non credendi animo pater misisse fuerit comprobatus, sed pietate debita ductus: in rationem portionis, quae ex defuncti bonis ad eundem filium pertinuit, computari aequitas non patitur.
(Ulpian in the sixth book of Opinions)
When a father provides financial aid to his emancipated son who is living abroad while pursuing his studies, if it is proved that the father sent this support not with the intent of making a loan but motivated by the usual pietas, considerations of equity (in this case) do not permit such (aid) to be reckoned as part of the share that has passed from decedent’s property to the son.
1. Division of an Estate. The Case arises in the context of discussing how to divide an estate that was inherited in common.
It assumes that an emancipated child might have a claim. What does this fact suggest about the child's relationship with his former paterfamilias? If the father had strong feelings of affection for his son, why did he emancipate him? If the fathers motive for sending the money was pietas, why should this help determine the outcome?2. Loan. If the father had made a loan to the emancipated son, the latter would owe this amount to the estate. Note that unless specifically revoked by a pater familias upon emancipation, a peculium became the property of the child at that point (Papinian, Frag. Vat. 260). Is there any connection between this rule and the holding in the principal Case? Here of course the payment is made after emancipation. Is that relevant?
3.face="Times New Roman"> Social Practice. Do the circumstances of the payment influence the jurists decision? We know that upper-class Roman fathers often sent their teenage sons to study in the Greek East, at no small expense. Could the relative youth of the son, as well as his probable financial vulnerability and the evident usefulness of the expenditure, have played a role in influencing Ulpian's decision?
4. Punishment or Family Strategy? “Such evidence as there is is finely balanced. Some makes it sound as if emancipation was a punishment: it broke the family tie, a fact which may have been of great consequence in a society as obsessed as Rome was with family pedigree and ancestors.... But there are also signs that emancipation was used as part of a strategy of planning for the future of the family as a whole, by making separate provision for, rather than punishing, emancipated family members.... [I]t might be called into service for any of a variety of purposes, positive or negative” (David Johnston). Does this seem about right? Which motive appears to prevail?