Gaius. Institutes. I.132-135Gaius. Institutes. I.132-135132 (Praeterea) emancipatione desinunt liberi in potestate parentium esse. sed filius quidem tribus mancipationibus, ceteri uero liberi, siue masculini sexus sine feminini, una mancipatione exeunt de parentum potestate : lex enim xii tabularum tantum in persona filii de tribus mancipationibus loquitur his uerbis : ` si pater filium [ter] uenumduit, a patre filius liber esto.' (eaque) res ita agitur : mancipat pater filium alicui ; is eum uindicta manumittit ; eo facto reuertitur in potestatem patris ; is eum iterum mancipat uel eidem uel alii, (sed in usu est eidem mancipari) isque eum postea similiter - - - - in potestatem - - - - tertio pater eum mancipat uel eidem uel alii, (sed hoc in usu est ut eidem mancipetur) - - - - ac si nondum manumissus sit, sed adhuc in causa mancipii.
133 - - -- -[133 a]- - - - -133b (Admonendi autem sumus liberum arbitrium esse ei qui filium et ex eo nepotem in potestate habebit, filium quidem potestate dimittere, nepotem uero in potestate retinere : uel ex diuerso filium quidem in potestate retinere, nepotem uero manumittere, (uel omnes sui iuris efficere. eadem et de pronepote dicta esse intellegemus.)
134 - - - et duae intercedentes manumissiones proinde fiunt, ac fieri solent cum ita eum pater de potestate dimittit et sui iuris efficiatur. deinde aut patri remancipatur, et ab eo is qui adoptat vindicat apud praetorem filium suum esse, et illo contra non vindicante a praetore vindicanti filius addicitur; aut non remancipatur patri, sed ab eo vindicat is qui adoptat (apud quem in tertia) mancipatione est : sed sane commodius est patri remancipari. in ceteris uero liberorum personis, seu masculini see feminini sexus, una scilicet mancipatio sufficit, et aut remancipantur parenti aut non remancipantur. Eadem et in prouinciis apud praesidem prouinciae solent fieri.
135 Qui et filio semel iterumue mancipato conceptus est, licet post tertiam mancipationem patris sui nascatur, tamen in aui potestate est, et ideo ab eo et sancipari et in adoptionem dari potest. at is qui ex eo filio conceptus est qui in tertia mancipatione est, non nascitur in aui potestate : sed eum Labeo quidem existimat in eiusdem mancipio esse cuius et pater sit: utimur autem hoc iure, ut quamdiu pater eius in mancipio sit, pendeat ius eius; et si quidem pater eius ex mancipatione manumissus erit, cadat in eius potestatem; si uero is dum in mancipio sit decesserit, sui iuris fiat.
135a Eadem - - -; nam, ut supra diximus, quod in filio faciunt tres mancipationes, hoc facit una mancipatio in nepote.
Muirhead, James, ed. The Institutes of Gaius and the Rules of Ulpian. Edinburgh: Clark, 1904.
Gaius. Institutes. I.132-135132 There is yet another way in which children cease to be in the potestas of parents, namely, by emancipation. A son indeed does so only after three mancipations ; but as for other children, whether males or females, their exit from the potestas is accomplished by one : for the law in the Twelve Tables ‘if a father have thrice sold his son, then be the son free from his father'-speaks of three mancipations only in the case of a son. It is managed thus : the father mancipates his son to a third party ; the latter manumits him vindicta; thereupon he falls again into his father's potestas ; the father again mancipates him either to the same person as before or to a different one,-it is the usual practice to mancipate to the same,-who again in like manner manumits him vindicta, whereupon he once more returns into the potestas of his father ; then a third time his father mancipates him either to the same person or to another,-but our practice is again to mancipate to the same,-and by this last mancipation he ceases to be in the potestas of his father, though not yet manumitted, but still in the position of a mancipium [in the hands of the individual [to whom he has been mancipated ; but if he be once again [manumitted by the latter, he then becomes sui iuris.
133 Therefore, when the son has been mancipated the third time, his father [ought to take care that the mancipee remancipates to him, i.e. the father, that so he may become the manumitter, and thus, in the event of his son's death, be entitled, rather than the mancipee, to his succession.
133a Females and grandsons by a son pass out [of the potestas of their father or grandfather, and become sui [iuris, by one mancipation. But though this be the case, yet [unless they have been remancipated by the mancipee to their [father or grandfather, and by him manumitted, he, the father [or grandfather, will not be entitled to succeed to them ; i/., how[ever, he be their manumitter after remancipation, he will be [entitled to their succession.]
133b We must keep in mind that it is in the option of a man who has at the same time a son and a grandson by that son in his potestas, to release the son from it bet retain the grandson ; or he may retain his son in it, releasing his grandson ; or he may make both sui iuris. And the same observation applies to the case of a great-grandson.
134 [Then again, parents cease to have in their potestas those of [their children whom they have given in adoption. In the case [of a son who is being given in adoption, three mancipations] and two intermediate manumissions are carried through, just as when he is being dismissed from his father's potestas in order that he may become sui iuris. Then either he is remancipated to his father, and from him vindicated by the adopter before the praetor, who adjudges him to the adopter in the event of the father asserting no counter-vindication ; or else, without any remancipation to his father, he is vindicated by the adopter directly from the party in whose ius he is in virtue of the third mancipation : but it is certainly more convenient that he be remancipated to his father. As regards other descendants than sons, no matter whether male or female, one mancipation is sufficient, which may or may not be followed by remancipation to the parent. The same process is gone through in the provinces before the governor.
135. A child begotten by a son after his first or second mancipation, even though he be not born till after the third, is nevertheless in the potestas of his grandfather, by whom consequently he may be emancipated or given in adoption. But one begotten after the son's third mancipation is not born in his grandfather's potestas. According to Labeo, he is in mancipio of the person to whom his father has been mancipated: but our rule is that so long as his father continues in mancipio the child's status is in suspense ; if the former be manumitted from mancipium, the latter will fall under his potestas, but if he die in mancipio the child will be sui iuris.
135a [The same rule applies to the case [of a great-grandson by a grandson, though the latter has been [mancipated only once;] for, as already said, the same results that follow three mancipations of a son follow one mancipation of a grandson.
Mears, T. Lambert, trans. The Institutes of Gaius and Justinian, The Twelve Tables and the CXVIIth and CXXVIIth Novels. London: Stevens, 1882