54 pages u can print it out: (law of contracts/ strawman): archive.org/.../cu31924021206804_djvu.txt 2 NOTES ON ROMAN LAW. guardianship {tutela muiierum and tutela impuberum) ; and orphans from the age of puberty to the age of twenty-five years, and lunatics and spendthrifts were under another form of guardianship (ciira). Of these instances of the power of one person over another, mamipium, manus, and tutela muiierum were obsolete in the time of Justinian. § 2. Legal Personality— Caput — Capitis Deminutio. The notion of complete legal personality was summed up in Roman law in the term caput (head). The caput involved the three elements of freedom, citizenship, and family rights. The legal personality was destroyed by the loss of any one or more of these elements. Any such loss was a change or reduction from ones former status and was called a capitis deminutio. Of this there were three grades: (1) loss of liberty (capitis deminutio maxima). This involved also loss of citizenship and family rights. (2) Loss of citizenship (capitis deminutio media). This involved loss of family rights but not of liberty. (3) Loss of family rights (capitis demimitio minima). This was the least reduction of status and did not affect either liberty or citizenship. Let us now examine these several reductions of status a little more fully. § 3. Loss of Freedom (Capitis Deminutio Maxima). A Roman citizen could not legally be sold into slavery, but he might become a slave by condemnation for crime or by being captured by an enemy. With the loss of freedom the legal personality was extinguished. In the case of the capture of a Roman citizen by a hostile people, however, there was recog- nized what was called the jus postlim,inii, or the right of post- liminium. If the captive returned from captivity he enjoyed once more, from the moment of his return, all the rights that he had lost by his capture. By the fiction of postliminium the returned captive was considered as never having been in cap- tivity, and so far as possible, was placed in the same position LAW Off PERSONS. 3 as if he had never been captured. If, however, he died in captivity, he, of course, died a slave and not a Roman citizen. This might seriously affect his family, for a slave could have no heirs nor make a will. To overcome these difficulties, the lex Cornelia (B. C. 81) extended the fiction of postliminiumi by providing that if the captive died in captivity, his death should be considered to date, not from actual moment of death, but from the moment of capture, so that although he lived a slave, he had previously died free. § 4. Loss of Citizenship (Capitis Deminutio Media, or Magna ) . A person might lose his citizenship ( 1 ) by em- igrating to a Latin colony. But in Justinians time Latin colo- nists and all other free members of the Roman Empire were Roman citizens, and hence this rule was then obsolete. (2) By expatriation, as- by being shut out from the use of fire and water {interdictio aqucB et ignis). (3) By deportation to an island. This mode of punishment was introduced by Augustus to avoid the danger of allowing a crowd of banished men to meet wherever they pleased. It was banishment for life; simple banishment did not, in Justinians time, involve loss of citizenship. (4) By desertion to the enemy. § 5. Loss of Family Rights (Capitis Deminutio Min- ima). Severance from ones agnatic family operated as a loss of personality. The Roman family consisted of the ag- gregate of all those who were under the same paternal power, or would be thus subject if the common ancestor were still living, and this form of relationship (agnation), unlike the natural relationship of blood (cognation), could be changed. One could sever his connection with his agnatic family, and in so doing he was said to suffer capitis deminutio minima, that is, the least degree of loss of personality recognized- Such a change occurred where a woman married with manus, passing from her fathers family into her husbands family; or where a father sold his son into bondage (mancip- ium), or gave him in adoption, or emancipated him; or where 4 NOTES ON ROMAN LAW. a person sui juris was arrogated (adopted); or where the child of a concubine was made legitimate by the intermar- riage of his parents, thus passing from his mothers family into his fathers family. It will be observed that in some of these cases the condition of the person might have been actually improved, as in the case of the emancipation of a son who thus became sui juris, or of a bastard who was made legitimate. There was usually merely a change from one family to another, new family rights being acquired in place of those lost. Nevertheless, any change was considered a loss of personality. In addition to the loss of the old and the acquisition of new family rights, there were originally two other consequences of capitis deminutio minima. (1) All contractual debts of the capite ■minutiis (person losing personality) were extin- guished. But later the prsetor granted a remedy to creditors. (2) Personal servitudes to which the capite minutus was en- titled were extinguished. This rule was abolished by Jus- tinian. n. The Law of Slavery. § 6. In General. In the law of persons the first division is into freemen (liberi) and slaves (send). Freedom, says Jus- tinian, is a mans natural power of doing what he pleases, so far as he is not prevented by force or law; slavery is an in- stitution of the law of nations, against nature, subjecting one man to the dominion of another. The Romans thus recog- nized slavery as an artificial institution, contrary to the law of nature, but it persisted in Rome down to the latest times. (Gains, 1 § 1 ; Inst. I, 3.) § 7. Modes of Becoming Slave — In General. The prin- cipal modes by which a person might become a slave were by birth and by capture in war. These modes were recognized by the Jtis Gentium. There were also several cases peculiar to the JiLS Cizile in which persons were reduced to slavery as a punishment for wrong doing. (Inst. I, 3.) LAW OF PERSONS. 5. § 8. Same— Slavery by Birth. The children of a female slave became the slaves of her master. The status of the father as free or slave was immaterial. The general rule gov- erning the determination of the status of a child, whether as free or slave, or as citizen or alien, was as follows : Children born in lawful wedlock had the status of the father at the mo- ment of conception; children born out of wedlock had the status of the mother at the moment of birth. Hence if the father of a child of a lawful marriage was free at the moment of conception, the child was free although the father should subsequently lose his freedom. As to children born out of wedlock, the general rule, as above stated, was that it was the status of the mother at the moment of birth that determined the status of the child. If the mother was free at the moment of conception but a slave at the moment of birth, the child was a slave, and conversely. This was the earlier law, but the rule was modified in the interest of liberty to the effect that if the mother was free at any time between the -concep- tion and birth of the child, the child was free. (Inst. I, 4.) § 9. Same — Slavery by Capture. Persons captured in war became the slaves of their captors. According to the an- cient view, a soldier had the right to kill his captured enemy, and the captive had no right to complain if his captor chose to preserve him alive as a slave instead of putting him to death. But the capture must have been in a war between belligerents ; a forcible seizure by brigands or pirates did not result in slav- ery. And if a Roman citizen made a prisoner of war re- gained his freedom by escape or otherwise, he was considered by the fiction of postliminium as having never been a slave. § 10. Same — Special Cases of Slavery Arising under the Jus Civile. These were all cases in which a person lost his liberty as a punishment for crime or other wrong doing. (1) A Roman citizen who, for the purpose of avoiding military service, failed to have himself enrolled on the census,
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