Before his birth, therefore, a child was not a subject of rights; but if, eventually, he was born alive, he was regarded (in so far as this fiction might be advantageous to him), ') as having existed from the moment of conception; 2) and, in fact, various measures were prescribed by law for the protection of his eventual interests 3).

§ 22. THE END OF NATURAL PERSONALITV.

The legal capacity, and consequently the personality, of natural persons was ended by death. The death of a person, when it was to be made the foundation of a right, had to be proved, like any other fact. (Nov. 117. Cap. XI.) It was originally only by custom, since confirmed, in various instances, by modern legislation, that a presumption of death was introduced, in the case where a person had remained absent during a certain period of time, without any news being received of either his life or his death. That which is occasionally found in the Roman Law, 4)

Husband claims, by "the courtesy of England", an estate for life in the lands of his deceased Wife, it is sufficient that the Wife has brought forth a child actually living at the moment of birth; although it lived but an instant, or was even incapable of living longer.

1) L. 231. D. de V. S. "Quod dicimus eum, qui nasci speratur, pro superstite esse, tum verum est, quum de ipsius jure quaeritur aliis autem non prodest, nisi natus.” L. 7. D. de Stat. hom. (1. 5). L. 48, § 5. D. de Furt. (47. 2). Applications of this rule occur in L. 26. D. de Stat, hom.; in the Title of the Dig. de Ventr. in poss. (37. 9); in L. 20. D. de tut. et cur. dat. (26. 5); and in L. 2. § 6. D. de excus. (27. 1). 2) It is not accurate to say: "The child of which a woman is pregnant, is reputed already born"; for it would thence result that, from the bare fact of being conceived, he could at once acquire; on the condition, that subsequently, should he come dead into the world, he would lose again that which he had previonsly acquired. This is by no means so. [Vide L. 7. pr. D. de reb. dub. (34. 5); L. 129. D. de V. S., Qui mortui nascuntur, neque nati neque procreati videntur; quia numquam liberi appellari potuerunt".] This idea is better expressed in L. 3. D. Si pars her. pet. (5. 4). Antiqui libero ventri ita prospexerunt, ut in tempora nascendi omnia ei jura integra reservarent. Windscheid, § 52, note 5. Opzoomer, upon art. 5, of the Netherlands' Civil Code. This author refers, very justly, to the provisions of the Prussian Law. Pr. L. R., Part. I, Tit. I, § 12. 3) Vide art. 403, Netherl. Civ. Code.

4) L. 56. D. de usufr. (7. 1). L. 8. D. de usu et usufr. (32. 2). L. 23. pr. et § 1.

respecting the age of one hundred years, cannot be regarded as forming a general and legal presumption.

The moment of death, or the pre-decease of the one of two persons, had also to be proved, in cases where the existence of a right depended upon one or other of those circumstances. In the absence of proof, one person was not presumed to have survived another.) On the other hand, proof of death was not required, when it sufficed for the solution of a question, that one person had not survived another 2), or where the declared intention of him who had desired to confer a right upon another, was opposed to such proof. 3).

The general rule respecting proof of pre-decease admitted but one exception; which was when parents and children met their death by accident, and from the same accident. In that case, (except as to the heritable rights of the patron or lord), children under the age of puberty were presumed to have died before, and those above that age to have died after their parent. This presumption, was rigorously restricted to this one and sole case, and admitted of no extension 4). L. 9. § 4; L. 9. § 2. D. de rebus

C. de SS. Eccles. (1. 2). Vangerow, § 33, obs. 1. As to the origin and development of customary-law concerning absent persons, see Bruns, Jahrb. des Gem. Deutsch Rechts. I., 30; who shows why legal presumptions were less necessary among the Romans, than since the formation of a theory of proof, based upon fixed principles, and limiting the power of the Judge. See also Windscheid, § 53, note 1.

1) L. 34. D. ad Sct. Trebell (36. 1). L. 9. § 3. L. 16. § 1. L. 18. pr. D. de reb. dub. (34. 5). “In quibus casibus si pariter decesserint, nec appareat, quis ante spiritum emisit, non videtur alter alteri supervixisse."

2) L. 32. § 14. D. de don. i. v. et ux. (24. 1). Ait enim Oratio, si prior vita decesserit, qui donatum accepit: non videtur autem vita prior decessisse, qui donatum accepit, cum simul decesserint. L. 8. D. de reb. dub. L. 26. D. de m. c. d. (39. 5).

3) In L. 9. pr. D. de reb. dub. (On the text of this law, see Arndts, § 27, note 2.) the jurisconsult founds his argument upon the intention of the testator, who desired, in any case. to devolve both estates upon the person having the gift over. In the same way, in L. 9. § 3. D. eod.: where it was intended tho leave the dower to the wife only in case it should accrue to her advantage after dissolution of the marriage; and again, in L. 17, § 7. D. ad Sct. Trebel; as to which see Kierulff, I, 91.

4) Some have sought to extend this presumption to other persons and other cases; but this is an error. In fact, in the first place, there is question here of a jus singulare ;

dab.; L. 23. L. 22. D. eod. "Cum pubere filio mater naufragio periit: cum explorari non possit, uter prior extinctus sit, humanius est credere, filium diutus vixisse." L. 26 pr. D. de pact. dot. (23. 4).

and moreover, there is not, in case of natural death, a parity of motives for departing from the general rule. Vangerow, § 33. obs. 1; Windscheid, § 53. 4. The Prussian, L. R., I. § 39, rejects the presumption, and requires, in every case, proof of the prior decease. Likewise the Austrian Code. (A. B. G. § 25). The Code Napoleon, on the contrary, (art. 720, 721 and 722), contains a system of presumptions, no less arbitrary than incomplete, and which the Netherlands' legislation has done well not to reproduce. Vide art. 878 Code of the Netherlands; which is nevertheless, superfluous on the one hand, and far from precise on the other.

SECTION III.

Qualities and attributes which affect, in a general manner, the legal status of natural persons.

§ 23. OF THE STATUS, AND OF THE CAPITIS DIMINUTIO BY WHICH

IT MIGHT BE MODIFIED.

Although all men, with the exception of slaves, whose legal status we have not now to consider, - are capable of having rights, the extent of this capacity is, neverthleess, far from being the same for all. We have first to consider the status of the Romans, and the capitis diminutio by which it might be modified. 1)

By status, when they use the word in the acceptation of a personal attribute, the Roman jurisconsults mean the place and the position which a man occupies relatively to other men. 2) From this point of view, we find the following distinctions: I. Free men and slaves (liberi, servi). II. Citizens and strangers. (Cives, peregrini). III. Independent persons and persons subject to the control of others. (Sui juris, alieni juris). pr. J. de jur. pers. (1. 3). L. 1. pr. D. de his qui sui vel alieni juris sunt. (1. 6).

In like manner there were three kinds, of the capitis diminutio: I. The grand, (maxima), which consisted of the loss of liberty: II. The lesser or intermediate, (minor vel media), which involved the loss of citizenship; (civitas): III. The least (minima), which destroyed the ties of agnation 3). L. 11. D. de cap. min.

1) As to the notion to be formed of this, See Sav. II, 443. Von Scheurl, Beitr., I, 9. 2) Savigny, 1. c., p. 454.

3) Vangerow, 1, § 34. Arndts, § 28, note 4.

(4. 5): "Capitis diminutionis tria genera sunt: - Maxima, Media, Minima. Tria enim sunt quae habemus: libertatem, civitatem, familiam. Igitur, cum omnia haec amittimus, hoc est libertatem, et civitatem et familiam, maximam esse capitis diminutionem: cum vero amittimus civitatem, libertatem retinemus, mediam esse capitis diminutionem: cum et libertas, et civitas retinetur, familia tantum mutatur, minimam esse capitis diminutionem constat." § 1-3. J. de cap. dim. (1. 16).

The capitis diminutio affected: I. Him who was adopted by one of his relatives in the ascending line. (plena adoptio). L. 10. C. de adopt. (8. 48). II. Him who from being sui juris, became alieni juris, by reason of legitimation or arrogation (legitimatio, arrogatio). § 3. I. de cap. min. L. 2. § 2. D. eod. III. Children who passed from one family into another, conjointly with the person legitimated or arrogated. L. 3. pr. D. eod.') IV. Him who became paterfamilias by emancipation 2) L. 3. § 1. D. eod.

Anciently this cap. dim. minima had important legal consequences; 3) the chief of which was the destruction of all familyrights and all the capabilities attached to agnation. 4) But after

1) "Liberos, qui adrogatum parentem sequuntur, placet minui caput, cum in aliena potestate sint et cum familiam mutaverint." Undoubtedly, this text should be read; "cum in aliena potestate sint, et cum eo familiam mutaverint." They suffered a cap. dim. because, being in the power of another, they entered, necessarily, (with their father) the new family. Basil., 46. 2. 2. Εναλάσσουσι γὰρ τὴν φαμιλίαν ἄλλου γινόμεναι υπεξού σισι σὺν τῷ πατρί.

2) But not if he became paterfamilias by the death of his father, or in some other way. L. 195. § 2. D. de V. S. Nam etsi patrefamilias mortuo, singuli singulas familias habent, tamen omnes qui sub unius potestate fuerunt, recte ejusdem familiae appellabuntur, qui ex eadem domo et gente proditi sunt. Nov. 81. Cap. 2.

3) Personality was, to a certain extent, different, accordingly as an individual belonged to this or that family. As von Scheurl says (Beitr. I, 235), Every cap. dim. is "An entire loss of personality, as regarded by private-law." This explains, among many other phenomena, the extinction of regular personal servitudes, (Paul. III. VI. C.) changed by Justinian in L. 16. C. de usufr. (3. 33); and also the extinction of creditors' claims by the cap. dim. min. of the debtor, to which the pretorian law had been opposed by means of the restitutio in integrum. L. 2. § 1. D. de cap. min. (4. 5). Gai. 4. 38. 4) Also, among others, of the legitimate guardianship of agnates (legitima aguatorum tutela). L. 1. pr. D. de cap. min. "Tutelas etiam non amittit capitis minutio, exceptis