diminutio maxima (s. magna),'a media (s. minor), and minima.' Paul. Capitis deminutionis 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 deminutionem; cum vero amittimus civitatem, libertatem retinemus, mediam esse capitis deminutionem, cum et libertas et civitas retinetur, familia tantum mutatur, minimam esse capitis deminutionem constat.-1. II, D. h. t. (=de cap. min. 4, 5).' Gai. i. §§ 159-60: Est autem capitis diminutio prioris status permutatio;. eaque tribus modis accidit. Maxima est capitis deminutio, cum aliquis simul et civitatem et libertatem amittit.2 Whilst the capitis diminutio 'maxima' and 'media plainly destroy the caput of a Roman citizen (and so personality or legal capacity in general, or only that according to ius civile), the minima' capitis diminutio is the mere destruction of the existing caput, the place of which is taken by another, so that he who is affected by it is acounted by Civil Law as a new private Person. A minima' capitis diminutio is experienced by such as without loss of citizenship (by an event affecting himself) exchanges his status for a new one, and loses his position in the existing familia; There are three orders of loss of status, greatest, intermediate, and least; for we have three things: liberty, citizenship, and family rights. When accordingly we lose all three, that is libertas, civitas, and familia, it is the greatest loss of status; when we lose citizenship, [but] retain freedom, there is the intermediate loss of status; but if freedom and citizenship are retained and family rights alone lost, that is the least loss of status. * Now capitis diminutio is a change of one's former status, and this happens in three ways.-There is the greatest cap. dem. when a person at the same time loses both citizenship and liberty. BOOK II. a § 36. ¿§ 39, ad init. BOOK II. a and it is immaterial whether his legal position is thereby actually improved or impaired. This happens when a persona sui iuris' is subjected to some one's Arrogation, patria potestas; or if a person subject to Power becomes sui iuris by an act of Civil Law, and so forms for himself a new familia; or if a person Emancipation, subject to Power passes into the Family Power of manumissio ex another. in manum conventio of the woman free from Power. mancipio: cf. Gell. 1, 12, 9 and 13 (§ 53). e Adoption, arrogation in respect of the children of the one arrogated, mancipatio, in manum conven tio of the filiafamilias: cf. § 49. Gai. i. § 162: Minima capitis diminutio est, cum et civitas et libertas retinetur, sed status hominis commutatur; quod accidit in his qui adoptantur, item in his quae coemptionem faciunt, et in his qui mancipio dantur, quique ex mancipatione manumittuntur: adeo quidem ut quotiens quisque mancipetur aut manumittatur, totiens capite diminuatur.' Liberos qui adrogatum parentem sequuntur, placet minui caput, cum in aliena potestate sint et cum familiam mutaverint. § Emancipato filio et ceteris personis capitis minutio manifesto accidit, cum emancipari nemo possit, nisi in imaginariam servilem causam deductus ; aliter atque cum servus manumittitur, quia servile caput nullum ius habet ideoque nec minui potest: -hodie enim incipit statum habere.-1. 3 (Paul.), 1. 4 (Mod.), D. h. t. 1 There is the least abatement of status when both citizenship and liberty are retained, but the status of the individual is changed, which happens in the case of those who are adopted, likewise in the case of those who perform a coemption, and in the case of those who are given by mancipium, and those that are manumitted after mancipation ; so that indeed as often as a man is mancipated or is manumitted, so often does he suffer an abatement of status. 2 It is held that children who follow their arrogated parent experience an abatement of status, since they are under the power of another, and have changed their family. An abatement of status plainly befalls an emancipated son and other persons, since no one can be emancipated save as he is ostensibly led away into servitude. It is otherwise when a slave is Gai. iii. § 153: -civili ratione capitis diminutio morti coaequatur.1 Next, as to the effect of capitis diminutio. (1) In general: the maxima' and 'media' destroy all legal relations dependent upon freedom or citizenship, whilst by capitis diminutio 'minima' only such relations are terminated as, arising out of Civil Law, depend upon the earlier family status. Ulp. Servitutem mortalitati fere comparamus. Id. deportatos mortuorum loco habendos. Inst. i. 16, 6: Si maxima capitis deminutio BOOK II. Ulp. Capitis minutioa privata hominis et Sc. minima. familiae eius iura, non civitatis amittit.-1. 6, D. h. t.s Paul. Si libertate adempta capitis deminutio subsecuta sit, nulli restitutioni adversus servum locus est, quia nec praetoris iurisdictione ita servus obligatur, ut cum eo actio sit. Sed utilis actio adversus dominum danda est, ut Iulianus scribit, et nisi in solidum defendatur, permittendum mihi est in bona quae habuit mitti.—1. 7, § 2 eod. manumitted, because a slave has no right, consequently can suffer no abatement of status-for on the day [of the manumission] he begins to have a status. 1 1 By the doctrine of the ius civile, loss of status is tantamount to death. * See p. 168. 3 Persons deported must be regarded as dead. If the highest degree of abatement of status take place, cognatic rights also are destroyed. Indeed, if a man have been deported to an island, cognatic relationship is extinguished. 5 The [i.e., lowest] abatement of status works the loss of a man's private and family rights, not that of citizenship. • If an abatement of status have ensued from deprivation of BOOK II. a Gai. i. 136, § 55. Gai. iii. 114. But not claims ex delicto. d D. 4, 5, 2, I; • Or 'analogous': cf. Abdy and Walker on Inst. ii. 1, 34 (2) Particular effects of the minima capitis diminutio are the destruction of the existing agnatic relationship, although without attainment of rights of agnation in the new familia; " the extinction of certain rights and the destruction of claims ex iure civili against the 'capite minutus'; but in the latter respect the Praetorian Edict aided by renewed grant of actions against the person, and by the grant of real execution against his property, although he had ceased to be a personal debtor.d с Gai. i. § 158: Sed adgnationis quidem ius capitis diminutione perimitur, cognationis vero ius eo modo non commutatur: quia civilis ratio civilia quidem iura corrumpere potest, naturalia vero non potest.' Ibid. § 83 per capitis diminutionem pereunt (quales sunt) ususfructus, operarum obligatio libertorum, quae per iusiurandum contracta est, et lites contestatae [constituto?] legitimo iudicio." Ibid. § 84 de eo vero quod proprio nomine eae personae debuerint, licet neque pater adoptivus teneatur, neque coemptionator, neque ipse quidem qui se in adoptionem dedit quaeve in manum convenit, maneat obligatus obligatave, quia scilicet per capitis diminutionem liberetur, tamen in eum eamve utilis actio datur rescissa capitis diminutione, et si adversus hanc actionem non defen freedom, restitution does not obtain against a slave, because not even by the praetor's jurisdiction is a slave under obligation, for an action to lie against him. But, as Jul. writes, an equitable action should be given against the master, and unless he is defended in respect of the whole, I must be allowed to assume possession of the effects that belonged to him. 1 But while the right of agnation is destroyed by cap. dim., the right of cognation is not so changed; for though a doctrine of ius civile can impair civil, it cannot destroy natural rights. 2 -things that perish through cap. dim. (such as) usufruct, an undertaking for services of freedmen which has been contracted by oath, and the joinder of issues by (the obtaining of) a legitimum iudicium. dantur, quae bona eorum futura fuissent, si se Id. iv. § 38: Praeterea aliquando fingimus, INFAMIA. § 57. CIVIC REPUTATION. Civic Reputation is the public appreciation and recognition of his dignity, to which every man has claim as a Person and a member of the State. The basis of full civic reputation, as of full capacity for rights, in Roman Law is Citizenship. Loss of citizenship, coupled with 1 But with regard to debts which such persons owed on their own account, although neither the adoptive father nor the coemptionator is liable, and neither the man who has given himself in adoption nor the woman who has come under manus remain liable, as being relieved by the cap. dim., yet an analogous action is granted against him or her, the cap. dim. being cancelled; and if no defence is put in for them against this action, the praetor allows the crediters to sell all the effects that would have been theirs if they had not subjected themselves to another's authority. 2 * Moreover, we sometimes employ the fiction that our opponent has not experienced cap. dim.; for if any man or woman be bound to us on a contract, and suffer cap. dim., as a woman by coemption, or a man by arrogation, the person is no longer under liability to us by the i. c., nor can it be directly maintained that he or she ought to give'; but to prevent either of them impairing our right, a utilis actio has been invented as against him or her, their cap. dim. being cancelled; i.e., one in which there is a fiction that he or she has not experienced cap. dim. BOOK II. Part 1. |