The New International Encyclopædia/Emancipation

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EMANCIPATION (Lat. emancipatio, from emancipare, to manumit, from e, out + mancipare, to deliver over, from manus, hand + capere, to take). In Roman law, the liberation of a person from paternal authority (patria potestas) by the act of the paterfamilias. Paternal authority over a son was regularly extinguished only by death. Paternal authority over a daughter ended when the daughter passed, by marriage, into the power (manus) of a husband; but this was not regarded as an emancipation. Emancipation liberated the son or daughter from all control. In the oldest Roman law no such liberation was possible. The Roman father had, however, the power of selling his child as mancipium; and the status of a child thus sold was technically that of a slave, but practically, by ancient custom, that of a domestic servant bound out for a term of years. A very ancient rule, ascribed to Romulus and repeated in the Twelve Tables, declared that a son sold three times should be free from his father. Taking advantage of this last rule, the Roman lawyers devised a form of voluntary liberation. The son was sold three times in succession to a friend of the family, who, after the first and second sales respectively, set him free by manumission, just as a slave was set free, and after the third sale, by which the paternal authority was broken, sold him back to the father. The father, who at that stage of the transaction held the son not as a son, but as a mancipium, then ‘emancipated’ him by manumission. As the law of the Twelve Tables mentioned the son only, and not the daughter, and as this law came to be regarded as regulating emancipation rather than as furnishing the legal basis for emancipation, it was held that a daughter might be emancipated after a single sale. This form of liberating the son or daughter existed till the time of Justinian. The Emperor Anastasius established in A.D. 502 a subsidiary form of emancipation by imperial rescript; and Justinian abolished the old form entirely, substituting a declaration by the father before a magistrate.

The emancipation of a son who was married and had children did not take these children out of the grandfather's power. On the other hand. grandchildren could be emancipated, although their father remained in his father's power. Emancipation took the person emancipated not only out of the household, but out of the agnatic family; and it thus deprived him of all kindred in the legal sense, and nf all rights of inheritance. As far as inheritance from the father was concerned the law was changed in the last century ot the Republic by the prætors, who admitted the emancipated son to share in his father's estate on condition that his own estate was ‘collated,’ i.e. reckoned in as a part of the paternal estate. As far as rights of inheritance from collaterals was concerned, the emancipated person was at a disadvantage until Justinian changed the entire law of succession, and made cognatio, or kinship by blood, decisive.

Teutonic law never recognized a life-long authority of the head of the house over his children; not only did the daughter pass out of the father's control by marriage, but the son became free from the father as soon as he set up a home of his own. This mode of emancipation was described in the Middle Ages as ‘Saxon emancipation’ (emancipatio Saxonica) . In modern civil law the liberation of a person from paternal authority, as from the authority of a guardian, comes with the attainment of full age; and the term emancipation is applied to the case where a person receives some or all of the rights of full age before attaining full age. Thus the French law declares that sons as well as daughters are emancipated by marriage, and further provides for the emancipation of a minor with the consent of his parents at fifteen, and with the consent of the family council, if neither of his parents is living, at eighteen. This the Romans would have called ‘favor of age’ (venia ætatis). Similar provisions are to be found in other European codes.

The freeing of a slave was not termed at Roman law emancipation, but manumission. See Manumission; Family; Patria Potestas; Slavery.