It was necessary to state expressly that the testament was good, as far as it went, and that the law remedied its deficiency by making the agnati tutors, because it was a maxim of Roman law that a man could not die partly testate and partly intestate.

3. Sed adgnationis quidem jus omnibus modis capitis deminutione plerumque perimitur: nam adgnatio juris est nomen. Cognationis vero jus non omnibus modis commutatur, quia civilis ratio civilia quidem jura corrumpere potest, naturalia vero non utique.

3. The right of agnation is ordinarily taken away universally by capitis deminutio, for agnation is a term of civil law but the right of cognation is not lost in every case by capitis deminutio, for although civil law may destroy civil rights, it cannot destroy natural rights.

GAI. i. 158.

The tie of agnation being created by law, could also be dissolved by it: not so that of cognation, which was a tie of nature. But the law could take away the legal rights attaching to the natural tie; and this it did in the case of the maxima capitis deminutio. (See next Title, 6.)

A constitution of Theodosius and Arcadius provided that the mother, if she has not remarried, and undertakes not to remarry, may have the tutela of her children given her. (C. v. 35. 2.) And Justinian, by the 118th Novel, extended this to the grandmother, as well as the mother, if there was no testamentary tutor.

TIT. XVI. DE CAPITIS MINUTIONE.

Est autem capitis deminutio prioris status commutatio, eaque tribus modis accidit: nam aut maxima est capitis deminutio aut minor, quam quidam mediam vocant, aut minima.

Capitis deminutio is a change of status, which may happen in three ways for it may be the greatest capitis deminutio, or the less, also called the middle, or the least. GAI. i. 159.

The status of a Roman citizen was composed of three elements: Tria sunt quæ habemus: libertatem, civitatem, familiam (D. iv. 5. 11). The citizen was free, he had his position as a civis, he had his position in a family. Caput, originally signifying the mention made of the citizen in the registers of the census, was used as synonymous with persona; and if a citizen ceased, lost his liberty or his civic rights, or changed his family position by adoption or emancipation, he underwent what was termed a capitis deminutio, this capitis deminutio being termed maxima, media, or minima, according to which of the three elements of status it was that was primarily affected.

1. Maxima est capitis deminutio, cum aliquis simul et civitatem et libertatem amittit. Quod accidit in his, qui servi pœnæ efficiuntur atrocitate sententiæ, vel liberti ut in

1. The greatest capitis deminutio is, when a man loses both his citizenship and his liberty; as they do who by a terrible sentence are made the slaves of punishment;' or freedmen, con

grati circa patronos condemnati, vel qui ad pretium participandum se venumdari passi sunt.

demned for ingratitude towards their patrons; or those who suffer themselves to be sold in order to share the price obtained. GAI. i. 160; D. xxviii. 3. 6. 6; xxv. 3. 7. 1.

See Tit. 12. 3; Tit. 3. 4 note.

2. Minor sive media est capitis deminutio, cum civitas quidem amittitur, libertas vero retinetur. Quod accidit ei, cui aqua et igni interdictum fuerit, vel ei, qui in insulam deportatus est.

2. The less or middle capitis deminutio is, when a man loses his citizenship, but retains his liberty; as is the case when any one is forbidden the use of fire and water, or is deported to an island.

GAL. i. 161.

In this kind of capitis deminutio, as well as in the preceding, the position in the familia was lost, its rights belonging only to citizens. In this lesser kind, freedom is preserved; but the person who undergoes the change of status becomes a stranger, peregrinus fit. (ULP. Reg. 10. 3.) It was a maxim of Roman law, that no one could cease to be a citizen against his will. Civitatem nemo unquam ullo populi jussu amittit invitus. (Cic. pro Dom. 29.) The condemned was therefore denied the necessaries of life, until he was driven to withdraw himself from the city. Id autem ut esset faciendum, non ademptione civitatis, sed tecti, et aquæ et ignis interdictione faciebant. (CIC. pro Dom. 30.) The aquæ et ignis interdictio thus became a form by which a sentence of perpetual banishment was inflicted. The deportatio in insulam superseded this form. (D. xlviii. 29. 2.) The person who was banished was confined to certain limits, out of which he could not stir without rendering himself punishable with death. This must be kept distinct from simple relegatio, which was also an exile within prescribed limits, but did not in any way affect the status. (D. xlviii. 22. 7. See Tit. 12. 1 and 2.)

3. Minima capitis deminutio est, cum et civitas et libertas retinetur, sed status hominis commutatur. Quod accidit in his, qui, cum sui juris fuerunt, coeperunt alieno juri subjecti esse, vel contra.

3. The least capitis deminutio is, when a person's status is changed without forfeiture either of citizenship or liberty; as when a person sui juris becomes subject to the power of another, or a person alieni juris becomes sui juris.

GAI. i. 162.

The status was changed (commutatur) by the change of family position; but the person who underwent this form of capitis deminutio had still after it all the three elements of status. Whether the minima capitis deminutio involved a degradation or merely a change has been much debated by commentators. Savigny (see Poste's Gaius, p. 108) was of opinion that capitis deminutio always involved a degradation. The French commentators take the other view, that there was merely a change implied, and they

have, perhaps, if not the better arguments, the clearer authorities on their side. Thus Ulpian says the minima capitis deminutio takes place salvo statu. (D. xxxviii. 17. 1. 8.) What is said here of change of family by arrogation and emancipation must be extended to adoption. (D. iv. 5. 3.) In old times, the wife who passed in manum viri, or the freeman who was given in mancipio, underwent this minima capitis deminutio. (GAI. i. 162.)

After the words vel contra, at the end of this paragraph, some texts have the following words: veluti si filiusfamilias a patre emancipatus fuerit, est capite deminutus. The addition is probably owing to some writer having perceived that it was only in the case of emancipation that it was true that when a person became sui juris he was capite minutus. There was no change of family when a son became sui juris on the death of his father.

The person who underwent the minima capitis deminutio was, in the eyes of the law, a new person. He could not, therefore, until the prætor permitted an action against him, be sued for debts previously contracted. (D. iv. 5. 21.) And we shall see, in the Second Book, that in the old law a usufruct was extinguished by the minima capitis deminutio of the usufructuary. (Bk. ii. Tit. 4. 3.) The capite minutus also, as we shall see in the Third Book (Tit. 1. 9 and 10. 1), forfeited his place in intestate succession, except so far as he was helped by the prætor, or by legislation.

Even infamia did not produce a capitis deminutio. (D. ii. 16. 103.)

6. Quod autem dictum est, manere cognationis jus et post capitis deminutionem, hoc ita est, si minima capitis deminutio interveniat : manet enim cognatio. Nam si maxima capitis deminutio incurrat, jus quoque cognationis perit, ut puta servitute alicujus cognati, et ne quidem, si manumissus fuerit, recipit cognationem. Sed et si in insulam deportatus quis sit, cognatio solvitur.

6. In saying that the right of cognation remains in spite of a capitis deminutio, we were speaking only of the least deminutio, after which the cognation subsists. For, by the greater deminutio, as, for example, if one of the cognati becomes a slave, the right of cognation is wholly destroyed, so as not to be recovered even by manumission. So, too, the right of cognation is put an end to by deportation to an island.

D. xxxviii. 8. 5. 7.

A change of the civil family by adoption or arrogation never dissolved the natural tie of cognatio, or destroyed its attendant civil rights; but these were destroyed by a sentence which involved the loss of the civitas. And if the civitas was once lost and then regained, the restored, or rather new, civis was in all respects the founder of a new family, excepting when he was restitutus in integrum, that is, restored by the emperor to the same position that he had formerly held. (See Tit. 12. 1.)

7. Cum autem ad adgnatos tutela pertineat, non simul ad omnes pertinet, sed ad eos tantum, qui proximiore gradu sunt, vel, si ejusdem gradus sint, ad omnes.

7. The right to be tutor, which belongs to the agnati, does not belong to all at the same time, but to the nearest in degree only; or, if there are many in the same degree, then to all in that degree.

GAI. i. 164.

The principle of the law was, that those persons should have the burden of the tutelage who had the hope of the succession. (Tit. 17. pr.) The nearest in degree of the agnati were therefore the tutors in case of intestacy. The nearest in degree might, however, happen to be a woman or an infant, and then, although this person was the next in succession to the inheritance, it was necessary to go a step further off to find the tutor. (D. xxvi. 4. 1. 1.)

TIT. XVII. DE LEGITIMA PATRONORUM TUTELA.

Ex eadem lege duodecim tabularum libertorum et libertarum tutela ad patronos liberosque eorum pertinet, quæ et ipsa legitima tutela vocatur: non quia nominatim ea lege de hac tutela cavetur, sed quia perinde accepta est per interpretationem, atque si verbis legis introducta esset. Eo enim ipso, quod hereditates libertorum libertarumque, si intestati decessissent, jusserat lex ad patronos liberosve eorum pertinere, crediderunt veteres, voluisse legem etiam tutelas ad eos pertinere, cum et adgnatos, quos ad hereditatem vocat, eosdem et tutores esse jussit et quia plerumque, ubi successionis est emolumentum, ibi et tutelæ onus esse debet. Ideo autem diximus plerumque, quia, si a femina impubes manumittatur, ipsa ad hereditatem vocatur, cum alius est tutor.

By the same law of the Twelve Tables, the tutelage of freedmen and freed women belongs to their patrons, and to the children of their patrons; and this tutelage, too, is called legal tutelage: not that the law contains any express provision on the subject, but because it has been as firmly esta-. blished by interpretation, as if it had been introduced by the express words of the law. For as the law had ordered that patrons and their children should succeed to the inheritance of their freedmen or freed women who should die intestate, the ancients were of opinion that the intent of the law was that the tutelage also belonged to them; seeing that the law, which calls agnati to the inheritance, also appoints them to be tutors, because in most cases, where the advantage of the succession is, there also ought to be the burden of the tutelage. We say 'in most cases,' because, if a person below the age of puberty is manumitted by a female, she is called to the inheritance, while another person is tutor.

GAI. i. 165; D. xxvi. 4. 1. 1. 3.

The law gave the patron the right of succession to the inheritance of the freedman; and as the right of succession was connected with the tutelage in the case of the agnati, it seemed natural to connect the two in the case of the patron.

TIT. XVIII. DE LEGITIMA PARENTUM TUTELA.

Exemplo patronorum recepta est et alia tutela, quæ et ipsa legitima vocatur. Nam si quis filium aut filiam, nepotem aut neptem ex filio et deinceps impuberes emancipaverit, legitimus eorum tutor erit.

In imitation of the tutelage of patrons, there is, too, another kind which also is said to be legal; for if any one emancipates, below the age of puberty, a son, or a daughter, or a grandson, or a granddaughter, being the issue of a son, or any other descendant, he is their legal tutor.

GAI. i. 175.

This has already been stated in Title 12. 6. (See note to that paragraph.)

TIT. XIX. DE FIDUCIARIA TUTELA.

Est et alia tutela, quæ fiduciaria appellatur. Nam si parens filium vel filiam, nepotem vel neptem et deinceps impuberes manumiserit, legitimam nanciscitur eorum tutelam: quo defuncto, si liberi virilis sexus extant, fiduciarii tutores filiorum suorum vel fratris vel sororis et ceterorum efficiuntur. Atqui patrono legitimo tutore mortuo, liberi quoque ejus legitimi sunt tutores quoniam filius quidem defuncti, si non esset a vivo patre emancipatus, post obitum ejus sui juris efficeretur nec in fratrum potestatem recideret ideoque nec in tutelam, libertus autem si servus mansisset, utique eodem jure apud liberos domini post mortem ejus futurus esset. Ita tamen ii ad tutelam vocantur, si perfectæ ætatis sint. Quod nostra constitutio generaliter in omnibus tutelis et curationibus observari præcepit.

There is another kind of tutelage called fiduciary; for, if an ascendant emancipates, below the age of puberty, a son or a daughter, a grandson or a granddaughter, or any other descendant, he is their legal tutor; but if, at his death, he leaves male children, they become the fiduciary tutors of their own sons, or brother, or sister, or other descendants of the deceased. But when a patron, who is a legal tutor, dies, his children also become legal tutors; the reason of this distinction being that a son, who has not been emancipated in his father's lifetime, becomes sui juris at the death of his father, and does not fall under power of his brothers, nor, therefore, under their tutelage; while the freedman, had he remained a slave, would also have been, after the death of his master, the slave of his master's children. These persons, however, are not called to be tutors unless of full age, a rule which by our constitution applies generally to all tutors and curators.

D. xxvi. 4. 3, 4; C. v. 30. 5.

When it is said that the sons become the fiduciary tutors of their own sons, reference is made to the case of the grandsons having been emancipated by the grandfather.

The person who emancipated the child succeeded to all the