EXCURSUS I.

CAPITIS DEMINUTIO.

UPON the nature of capitis deminutio minima a different view is maintained by Savigny from that adopted in the note on Bk. i. 16. 3. He argues that the essence of all capitis deminutio is a degradation, or 'downward step on the ladder of status.' As applied to the two higher modes (maxima and media) this theory is not out of accord with the facts: there can be no doubt that a free man who became a slave, or a civis who became Latinus or peregrinus, was thereby degraded to a lower civil position. As applied, however, to capitis deminutio minima it presents insuperable difficulties: it is neither established by the authorities, nor can the inferences which must logically be drawn from it be reconciled with the statements of the jurists and other writers.

(1) On Savigny's hypothesis capitis deminutio minima occurred only in two cases: (a) where a person sui iuris passed into potestas or manus: () where a filiusfamilias, or woman in manu, was conveyed into the condition of mancipium in order thereby to be emancipated or given in adoption. Accordingly, the children of an adrogatus will not be capite minuti when they pass along with him into the potestas and familia of the adrogator: yet the very opposite of this is stated by Paulus in Dig. 4. 5. 3 'liberos qui adrogatum parentem sequuntur placet minui caput, cum in aliena potestate sunt, et cum familiam mutaverint.' Savigny boldly says that Paulus was wrong, that his view is unsupported by any other jurist, and is in fact peculiar to himself: but he seems to have overlooked the force of the word 'placet,' which certainly means is the received doctrine' ('verbum de iure antea controverso, iurisconsultorum responsis stabilito, sollemne' Schrader), and it can hardly be doubted that if Paulus had been stating his own individual opinion he would have said 'puto,' or 'videtur mihi.' On this point Savigny is altogether unsupported by textual authority.

(2) On Savigny's hypothesis a woman who passed in manum was capite minuta only if she were sui iuris before the conventio in manum, not if she were already in potestas. But this distinction is quite

unknown to the authorities: Gaius says (i. 115 a, 162; iv. 38) that a woman who passed in manum underwent capitis deminutio, and does not add that this occurred only when she had been sui iuris, and there is the same silence as to the assumed distinction in Ulpian, reg. 11. 13, and Cic. Top. 4. Savigny affirms that though in these passages there is no express limitation to the case of independent women, yet this limitation must be understood, in which supposition Mr. Poste (note on Gaius i. 162) thinks there is nothing outrageous.'

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(3) In reply to the question why a child, on being emancipated or given in adoption, was capite minutus, Savigny answers 'because a necessary step in these processes was the assumption of the condition of mancipium, a semiservile condition ("cum emancipari nemo possit nisi in imaginariam servilem causam deductus" Dig. 4. 5. 3), and it was this degradation, not the emancipation or adoption itself, which produced the capitis deminutio.' Assuming the truth of this for the sake of argument, it follows that when for the old forms of emancipation and adoption Justinian substituted new forms (notes on Bk. i. Tit. 11. 2, Tit. 12. 6 supr.) in which there was no approach to degradation,' emancipation and adoption must have ceased to be attended by capitis deminutio. But the passages in the Corpus iuris which affirm that capitis deminutio still accompanied emancipation (e.g. Bk. i. 16. 3. supr. 'vel contra:' Dig. 4. 5. 3, ib. 9 etc.), are too numerous to allow us to believe, as Savigny supposes, that they were admitted into the Corpus by an oversight of the compilers and as adoptio plena extinguished patria potestas, we may almost certainly conclude that this extinction was still attended by change of agnatic family, which (except in one or two anomalous cases) always went hand in hand with any extinction of patria potestas which was produced by act of the parties.

There are certain legal facts upon which Savigny relies as absolutely irreconcileable with the view adopted in the notes referred to, and which are supplied by the cases of the Vestal Virgin and the Flamen Dialis. As regards the former Gellius says (1. 2) 'virgo autem Vestalis simul est capta atque in atrium Vestae deducta et pontificibus tradita, eo statim tempore sine emancipatione ac sine capitis minutione e patris potestate exit et ius testamenti faciendi adipiscitur .... virgo Vestalis neque heres est cuiquam intestato neque intestatae quisquam, sed bona eius in publicum redigi aiunt. Id quo iure fiat, quaeritur.' From this passage Savigny infers that though, as is expressly stated, she had not been capite minuta-a Vestal Virgin left her previous agnatic family. It is to be observed that this is merely

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an inference all that is stated in the text is that on a vestal's dying intestate she had no heir ab intestato, but that her estate escheated to the treasury, and the lawyers were puzzled to explain this: id quo iure fiat quaeritur.' Savigny says the explanation is simple: The reason why a vestal had no intestate heirs was that a woman could have no suus heres, and that she, in particular, had no agnates to take in default, because she had left her agnatic family.' But if this had been the true solution, can we believe that the Roman lawyers were unable to discover it? It would have suggested itself to the veriest tyro; and it is inconceivable that had this been the case Gellius could have written the words 'id quo iure fiat quaeritur.' A better explanation is perhaps to be found in the vestal's immediate relation to the gods her life had been devoted to their service, and it was only consistent that, on her dying without disposing of her property by will, it should go to the treasury for sacrificial purposes. The case of the Flamen Dialis is exactly parallel: see Gaius iii. 114.

The real fact seems to be that Savigny has been misled by his desire to establish a harmonious system of legal conceptions' into adopting a view against which there is an irresistible weight of textual authority; he has been overpowered by the word 'deminutio,' and by the analogy which, according to him, there ought to be between deminutio maxima, media, and minima. Not to speak of the impropriety of arguing from words in the face of the clearest authority to the contrary, it may be observed that the jurists agree in describing the essence of capitis deminutio as a mere change rather than a deterioration of condition : it is a status mutatio.' It is true that in many cases of capitis deminutio minima (e. g. often in adoption) the agnatic rights which were lost were more than outbalanced by the rights acquired in the new family; but the prominent idea, the feature on which the legal mind is concentrated, is usually the immediate loss, not the compensatory gain. Savigny himself would not deny that there was a capitis deminutio (media) when a Roman citizen lost his civitas, even though he acquired citizenship in another city whereby he enjoyed far greater advantages and similarly, it is always a capitis deminutio (minima) if a man loses his previous agnatic rights, even though he acquires in exchange a perhaps better and more advantageous position in another family.

INTRODUCTION TO BOOK II.

WITH the second Book of the Institutes we enter upon the discussion of the ius quod ad res pertinet. Instead of giving a plain statement of the contents of this branch of the legal system, Justinian follows Gaius in presenting us with a number of very perplexing cross divisions of res, which, however, only partially correspond with those of the earlier writer, and from which we are left to gather by induction the meaning in which they both use the term when they make it their basis of classification. In three of these divisions there is no divergence between the two writers. Res are, firstly, either in patrimonio nostro or extra patrimonium nostrum (G. ii. 1, Inst. ii. 1. pr.); secondly, they are either corporales or incorporales (G. ii. 12, Inst. ii. 2. pr.); thirdly (though this classification is rather matter of inference than of direct statement), they are either res singulae or universitates (G. ii. 97, Inst. ii. 9. 6).

The main point wherein Justinian differs from Gaius is his further treatment of the res in patrimonio and extra patrimonium. This distinction Gaius hardly seems to consider of much importance, for, after stating it, he proceeds: 'Summa itaque rerum divisio in duos articulos deducitur, nam aliae sunt divini iuris, aliae humani;' res divini iuris, as he goes on to remark, comprising res sacrae, religiosae, and sanctae ; res humani iuris being either publicae or privatae. Justinian, however, makes it the basis of a further subdivision; he arranges the res which are extra patrimonium in subordinate classes-res communes, res universitatis, res publicae, and res nullius-the last corresponding with Gaius' res divini iuris. Res in patrimonio, on the other hand, either belong, or can belong, to private individuals (res singulorum); they seem to be identical with the res privatae of Gaius, and (the subject of the treatise being Private Law) are alone important for the purpose in hand. For the ascertainment of the meaning of the ius (privatum) quod ad res pertinet, the classifications of res as communes, sacrae, religiosae, publicae, and universitatis may be regarded as eliminated.

If we cast our eyes over the contents of the second and third books of Gaius and Justinian, we shall find that, so far as the

system is concerned, the only divisions of res which are of primary importance are, first, that into res corporales and incorporales, and, second, that into res singulae and universitates. Res corporales having been defined (G. ii. 13, Inst. ii. 2. 1) as tangible objects, and such tangible objects as cannot be in singulorum dominio having already been excluded, the modes in which ownership (and incidentally possession) of them can be acquired, natural (Tit. 1) and civil (Tit. 6. and 7), are explained. Res incorporales having been defined (G. ii. 14, Inst. ii. 2. 2), the nature of some of them (viz. servitudes) and their modes of acquisition are described in Titles 3-5 others, viz. obligations, occupy the greater portion of the third Book. These are all res singulae: universitates and their modes of vesting are examined under the heads of hereditas, whether testamentary (ii. 10-25) or intestate (iii. 1-9), adrogation (iii. 10), and bonorum addictio libertatis causa (iii. 11).

Speaking briefly, then, the ius quod ad res pertinet, extending over the whole of the second and third Books and part of the fourth Book of the Institutes, treats of tangible external objects of property, with their titles; real rights over them of less orbit than dominium; inheritance, comprising the subject of legacies: two less considerable forms of universal succession; and finally obligations, under the two heads of contracts and delicts or torts. All these are 'res;' the question still remains, What is the common property in virtue of which they are classed together, and the law relating to them set apart as one of the three great departments of the private code? To this question Mr. Poste (Gaius p. 159), following Austin, answers that the law relating to res is set apart because it is the law of equal rights. By this he appears to mean, that in it all persons are regarded as equal, in the sense that exactly the same capacity of right and of disposition is ascribed to all, and that differences in such capacity are left out of sight, as belonging properly to the law of Persons or unequal rights. If this is his meaning, we cannot but reject it as entirely misleading. The division of law into law of equal and law of unequal rights is no older than Austin, and to attribute an acquaintance with it to Gaius is a mere anachronism. If by the ius quod ad res pertinet Gaius had meant to express the law of equal rights, he would not, in it, have noticed incapacities of disposition (as he does in ii. 47. 80 sq.: cf. Inst. ii. 8. 2), incapacities of right (as he does in ii. 87 sq. cf. Inst. ii. 9. 1 and 2), disabilities in certain classes to take benefits of a particular kind (as he does in ii. 111) or exceptions from the ordinary rules for the execution of testaments (ii. 109, Inst. ii. 11): it would be super