Mancipation

The key to all its characteristics lies in its descent from the mancipium, or ancient Roman conveyance, a proceeding to which we may unhesitatingly assign the parentage of two great institutions without which modern society can scarcely be supposed capable of holding together, the Contract and the Will.

The Roman Mancipation required the presence first of all the parties, the vendor and vendee, or we should perhaps rather say, if we are to use modern legal language, the grantor and grantee.

Such commodities were at first, I imagine, called emphatically Things or Property, and the mode of conveyance by which they were transferred was called a Mancipium or Mancipation;

A man who had not made his will, either in the comitia calata or in martial array, being in apprehension of approaching death, used to convey his estate by mancipation to a friend, whom he requested to distribute it to certain persons in a certain manner after his death.

The testator having summoned, moned, as is done in other mancipations, five witnesses, all Roman citizens of the age of puberty, and a holder of the balance, and having already reduced his will to writing, makes a pro-formâ mancipation of his estate to a certain vendee, who thereupon utters these words:

In former times the vendee of the estate, the alienee by mancipation from the testator, held the place of heir, and received the testator’s instructions respecting the disposition of his property after his death.

Although, as we know the Mancipation in Roman legal history, it is a form of private transfer, it plainly bears the stamp of its original publicity.

The legal notions which I described as decaying and dwindling have always been regarded as belonging to what may be called the osseous structure of jurisprudence;