Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/711

JUS CIVILE.] ROMAN LAW 687 Voigt, founding on a few words in Festus, concludes it must have been by something like pignoris capio. This recuperatory pro- cedure in time came to be resorted to in some cases even where both parties were citizens. There are numerous instances of it in Cicero ; and it is remarkable that in most of the praetorian actions ex dclicto the remit was not to a judex but to recuperators. The explanation may be in the comparative summariness of the remedy. III. DEVELOPMENT OF THE SUBSTANTIVE INSTITUTIONS OF THE LAW. s The Citizen and his " Caput."- The early law of Home zen was essentially personal, not territorial. A man enjoyed ' the benefit of its institutions and of its protection, not because he happened to be within Roman territory, but because he was a citizen, one of those by whom and for whom its law was established. The theory of the early jus gentium was that a man sojourning within the bounds of a foreign state was at the mercy of the latter and its citizens, that he himself might be dealt with as a slave, and all that belonged to him appropriated by the first comer ; for he was outside the pale of the law. Without some sort of alliance with Rome a stranger had no right to claim protection against maltreatment of his person or attempt to deprive him of his property ; and even then, unless he belonged to a state entitled by treaty to the in- ternational judicial remedy of recuperatio, it was by an appeal to the good offices of the supreme magistrate, or through the intervention of a citizen to whom he was allied by the (frequently hereditary) bond of hospitium, and not by means of any action of the jus civile set in motion by himself. A non-citizen originally hostis, and afterwards usually called peregrimfs 1 in time came to be regarded as entitled to all the rights the jus gentium re- cognized as belonging to a freeman, and to take part as freely as a Roman in any transaction of the jus gentium ; but that was not until Rome, through contact with other nations and the growth of trade and commerce, had found it necessary to modify her jurisprudence by the adoption of many new institutions of a more liberal and less ex- clusive character than those of ihejus civile. A citizen's civil personality was technically his caput. The extent of it depended on his family status. It was only among citizens that the supremacy of the paterfamilias and the subjection of those in manu, potestate, or mancipio were recognized, only among them therefore that the posi- tion of an individual in the family was of moment. While in public life a man's supremacy or subjection in the family was immaterial, in private life it was the pater- familias alone who enjoyed full jural capacity. Those subject to him had a more limited personality ; and, so far as capacity to take part in transactions of the jus civile was concerned, it was not inherent in them but derived from their paterfamilias : they were the agents of his will, representatives of his persona in every act whereby a right was acquired by them for the family to which they belonged. ' itis Whenever a citizen either ceased altogether to be a mem- ni ~ ber of a Roman family or passed from one family into an- other, there was technically capitis minutio or deminutio, ex- cept in the cases of filiifamilias. and filiaefamilias becoming flamens or vestals ; for, though they changed their family, 1 Neither "alien" nor "foreigner" is an adequate rendering of peregrinus. For peregrini included not only citizens of other states or colonies, independent or dependent, but also d7r6Xi5es, men who could not call themselves citizens (cives) at all, as, for example, the dediticii whom Eome had vanquished and whose civic organization she had destroyed, offenders sent into banishment, &c. ; and until Caracalla's general grant of the franchise the greater proportion of her provincial subjects were also spoken of as peregrins. This, though linguistically objectionable, is a safer word than "non-citizen"; for the latter would include the Junian Latins of the early empire, who, though not citizens, yet were not reckoned as peregrini. yet it was by passing from a human into a divine one. When a citizen forfeited his freedom, his capitis deminutio was said to be maxima ; he lost all capacity, whether under the jus civile or the jus gentium. When, retaining freedom, he went into exile or joined a Latin colony, or otherwise became a peregrin, the diminution of his capacity was only media or minor; it was his rights and privileges under the jus civile that alone were affected. When both free- dom and citizenship remained, and no more occurred than the severance of his connexion with a particular family (familiae mutatio), the diminution was said to be minima. Very simple illustrations present themselves in the case of a paterfamilias becoming filiusfamilias by adrogation, or a materfamilias passing into the hand of a husband by con- farreation or coemption ; in both cases he or she who had been sui juris thereby became alieni juris. This was descent in the family scale. It almost appears as if some of the later Roman jurists assumed, as do many moderns, that such descent or degradation was essential to the idea of minutio capitis ; for Paul accounts for its presence in the case of emancipation which converted & filiusfamilias into a paterfamilias, and thus manifestly improved his status by the observation that in the process of release from his father's potestas a child had to pass, for however brief a period, through a condition of quasi-slavery (mancipium). But in reality degradation had nothing to do with it. It was immaterial whether the change was from a higher family position to a lower, or from a lower to a higher, 2 or to the same position in the new family that had been held in the old, as when a, filiusfamilias was transferred by his father into the potestas of an adopter, or when the filiifamilias of a person giving himself in adrogation passed with him into the potestas of the adrogator : in every case there was capitis minutio. It was not the change of family position that caused it, but the change of family itself, the change from one family to another. The civil per- sonality of Titius while a filiusfamilias in the potestas of Sempronius, the expectancy of succession, the agnatic relationships, the derivative capacity for being a party to a mancipation or a sponsio that resulted from the rela- tionship, all came to an end through the severance of the family tie. He might acquire a new and independent capacity on becoming sui juris by emancipation, or a new derivative capacity on passing into the potestas of Maevius by adoption ; but his old personality quoad civilia was extinguished. This is what some of the jurists mean when they say that capitis deminutio was civil death. The most important consequence of minima capitis de- minutio was that it not only extinguished patria potestas where it existed, but severed the bond of agnation between the capite minutus and all those who had previously been related to him as agnates. There was no longer any right of succession between them on intestacy ; their reciprocal prospective rights of tutory were defeated, and the minutio of either tutor or ward put an end to a subsisting guardian- ship, assuming always that it was a tutela legitima or agnatic curafuriosi. Very remarkable, yet quite logical, was the doctrine that the minutio extinguished the claims of credi- tors of the minutus ; their debtor, the person with whom they had contracted, was civilly dead, and dead without an heir, and therefore there was no one against whom an action of the jus civile could be directed in order to enforce payment. But equity eventually provided a remedy, by giving the creditors a praetorian action in which the minutio was held as rescinded, and which the new paterfamilias was bound to defend on pain of having to give up all the estate 2 Children who became sui juris by their parent's death did not change their family ; the change was not in them, but in the disappear- ance of the family head ; therefore they were not regarded as capite minuti.