or lastly, to a filiusfamilias, when his father emancipates him from § 24. the paternal power (emancipatio). And it is to be noted that in spite of the fact that the emancipatus actually improves his outward position by becoming a paterfamilias instead of a filiusfamilias, he nevertheless undergoes capitis deminutio, because the rupture of his agnatic ties involves the destruction of his previous legal personality and the creation of a new one. Capitis deminutio minima, then, means the severance from one's agnatic relationship, and it occurs in five cases, viz. in the case of 'mancipio dare,' of 'in manum conventio,' of ' datio in adoptionem,' of 'arrogatio,' and of 'emancipatio.' There were two further incidents of capitis deminutio minima which flowed as consequences from the destructive effect which capitis deminutio minima had in common with the other forms of capitis deminutio. Firstly, it was a rule of civil law that capitis deminutio minima extinguished the contractual debts of the capite minutus. The praetor, however, subsequently restored to the creditors their rights of action by means of in integrum restitutio. Secondly, it extinguished all personal servitudes to which the capite minutus had been entitled, i. e. all such jura in re aliena as had belonged to him for life (infra, § 56. I). This latter rule was only abolished by Justinian. According to the law as laid down in the Corpus juris personal servitudes are only extinguished by capitis deminutio maxima and media. GAJ. Inst. I § 162: Minima est capitis deminutio, cum et civitas § 24. tionem; cum et libertas et civitas retinetur, familia tantum mutatur, minimam esse capitis deminutionem constat. $ 25. § 25. Existimationis Minutio. The term 'honour' refers, in the first instance, only to social relations. To be honoured' is to be allowed one's full worth in society. Society treats those as entitled to honour who act in adherence to its views. The award or denial of honour, in other words, of social worth, is the sanction by means of which society enforces on individuals not merely the commands of law and morality, but more specifically the decrees of mere usage which may conceivably run counter to law and morality. The particular kind of conduct which society requires from the individual assumes diferent forms in reference to the different sections into which society is divided, and it is in this sense that we speak of the honour of a particular class, of military honour, professional honour, and so on. The effect which social relations and social views produce upon the law, finds expression in the legal rules concerning 'existimatio' or 'civic honour.' The law yields, to some extent, to the judgment pronounced by society and, in certain circumstances, imposes legal disabilities on persons whom society has declared to fall short of the standard it requires. Civic honour (in the legal sense) means full qualification in the eye of the law. Loss of honour (in the legal sense) means partial disqualification in the eye of the law. The civic honour of a civis Romanus may be destroyed (consumtio existimationis), viz. by capitis deminutio maxima or media; or it may be merely impaired (minutio existimationis). And it is in this last and narrower sense that the expression 'loss of civic honour' is technically applied. Minutio existimationis may be defined as the impairment of a man's civic honour which, without producing capitis deminutio (in other words, without destroying his previous personality), merely operates to diminish his personal qualifications in the eye of the law. In the Roman civil law, existimationis minutio only occurs: (1) in the cases determined by popular enactments1; (2) in consequence § 25. of a reprimand from the censor. But here again the jus honorarium outstripped the civil law. Towards the close of the republic the censor ceased to exercise his old functions and the vacancy thus created was supplied by the praetor. For the praetorian edict was concerned with persons whose civic dignity was impaired in so far as their disabilities in regard to judicial proceedings came into question. Thus the praetor in his edict enumerated those to whom, as persons of tarnished reputation, he would refuse the full jus postulandi, i. e. to whom he would deny the right to make motions in court (postulare) otherwise than on behalf of themselves or certain close relations. In another part of the edict he specified those to whom, as persons of tarnished reputation, he declined to grant the right of being represented by an agent in an action before him. But in thus denying to certain parties full legal capacity in judicial proceedings (including, inter alia, the unrestricted jus postulandi) the praetor did not directly pronounce them 'infames.' He had neither occasion nor power formally to curtail the civic honour which a person enjoyed. But, says Gajus, 'those whom the praetor places under such disabilities we call infamous. It was, then, in those lists contained in the praetorian edict that the views which society took of the cases of existimationis minutio found legal expression and were, so to speak, codified; imperfectly, it is true, but nevertheless in such a way as to be decisive of the future attitude of the law towards civic honour. And it was from these sections of the praetorian edict that Justinian's compilers took their catalogue of cases of existimationis minutio. There were, more particularly, two groups of cases which were contrasted with one another, the cases of 'infamia immediata' and of 'infamia mediata.' Infamy was said to be 'immediate,' if it attached to a person at once, ipso jure, on the commission of some 1 Thus e. g. the Twelve Tables (viii. 22) declared: qui se sierit testarier libripensve fuerit, ni testimonium fatiatur, improbus intestabilisque esto. 2 Karlowa, ZS. für RG., vol. ix, p. 222 ff.; Lenel, ZS. der Sav. St., vol. ii. p. 54 ff. 3 Gaj. iv. 182 (Studemund, ed. 2): Nec tamen ulla parte edicti id ipsum V. § 25. act which deserved to be visited with social disgrace. Thus it attached to persons engaged in a disreputable trade, to soldiers ignominiously discharged from military service, to persons in the relation of a double marriage or double betrothal. On the other hand, infamy was said to be 'mediate,' if it did not attach directly, but only after a court of law had passed judgment on the delinquent on the ground of some act which deserved to be visited with social disgrace. Such was the effect above all things of every criminal sentence touching life, limb or liberty. A similar result however followed condemnation in certain civil cases, more especially if judgment were given against a person in a civil action on account of a dishonourable breach of duty (e.g. as guardian, partner, depositary, agent). Those civil actions in which condemnation entails infamy are called 'actiones famosae.' No codification of the law of honour can, in the nature of things, be complete. It was necessary, therefore, to allow the Roman judges a discretionary power to take account of such cases of infamy as had not been specified in any statute or the praetorian edict. Looked at from this point of view, there were two kinds of existimationis minutio, 'infamia' and 'turpitudo.' In the case of 'infamy' the conditions under which it should attach were fixed by the law, viz. by statutes and the praetorian edict. In the case of so-called 'turpitude,' the conditions under which it should attach were fixed, not by the law, but by the free discretion of the judge acting, in each individual case, on the verdict of public opinion, in other words, on the verdict of society. Both these forms of minutio existimationis (viz. infamia and turpitudo) produce this result that the judge, acting on his own discretion, may take them into account, wherever the character of the person affected is concerned. He may hesitate, for example, before admitting such a person as a witness or allowing him to act as a guardian. Or again, if an infamis or turpis is instituted in a will, the judge may admit the brothers and sisters of the deceased to the querela inofficiosi testamenti (§ 100). The following effects, moreover, are peculiar to infamy: it extinguishes the jus suffragii and the jus honorum; it restricts the jus connubii (by disqualifying the infamis from marrying any free-born person, v. § 86); and it also § 25. restricts the right to make motions in court on behalf of others (v. supra). But these special disqualifications incident to infamy have ceased to exist in Justinian's time. As far as a man's personality, as such, is concerned, the only effect, under Justinian's law, both of 'infamy' and 'turpitude' is that the persons affected are liable to be subjected to certain disabilities by the judge in the exercise of his judicial discretion. L. 5 § 2 D. de extr. cogn. (50, 13) (CALLISTRATUS): Minuitur L. 1 D. de his qui not. inf. (3, 2): Praetoris verba dicunt: The jus suffragii and the jus honorum had lost all practical meaning, the prohibition on marriages had been abolished, and the judge was given entire discretion as to whether he would allow a person to make a motion in court or not (§ 11 I. de except. 4, 13). 3 These first two words are due to Justinian's compilers (v. Lenel, loc. cit.). K Lenel's conjectures have been brilliantly |