- prudence evolved the idea of a caput or personality possessed
by every individual independent of citizenship, an idea running parallel with the conception of a law of the civilised world (jus gentium) independent of the jus civile. From this point of view loss of citizenship could be spoken of as a capitis deminutio. There was besides an infringement of personality greater even than the loss of citizenship of which the natural man might be the victim. This was the loss of freedom. These two great derogations of caput were spoken of as magna capitis deminutio;[1] but finally a more precise classification gave the following three grades of loss of status:[2]—
(i.) Capitis deminutio maxima was the loss of civitas and libertas, consequent on a man's becoming a prisoner of the enemy. With the loss of freedom, political and therefore private rights[3] ceased ipso jure to exist. The obligations of international law might also produce this condition; the Roman general who concluded a treaty with the enemy, which the people would not accept, was handed over as a scape-goat for the broken faith of the community[4] (deditus), and similar treatment was meted out to one who had violated the sanctity of envoys,[5] or to a general who had made war with a state in alliance with Rome.[6] This loss of status was also produced by the civil law, in so far as it enjoined slavery as a penal measure—e.g. in the case of the incensi or of those who shirked military service[7]—or permitted the sale of the debtor or of the child into a foreign land.[8]
(ii.) Capitis deminutio media (or minor[9]) was the loss of civitas alone.
This might be voluntarily incurred by the assumption of the citizenship of another town, for the principle of the older Roman law was that a man might not be a member of two independent communities.[10] The exile from Rome which
- ↑ Eisele Beiträge zur römischen Rechtsgeschichte p. 205.
- ↑ Gaius i. 159-162; Ulp. xi. 10-13.
- ↑ p. 31.
- ↑ For the form of deditio see Liv. ix. 10; App. de Reb. Hisp. 83. The references are to the two great historic instances at the Caudine Forks (321) and Numantia (137).
- ↑ Liv. xxxviii. 42 (188 B.C.) "eo anno L. Minucius Myrtilus et L. Manlius, quod legatos Carthaginienses pulsasse dicebantur, jussu M. Claudii praetoris urbani per fetiales traditi sunt legatis, et Carthaginem avecti."
- ↑ ib. v. 36; Suet. Caes. 24.
- ↑ p. 138.
- ↑ p. 91.
- ↑ Gaius i. 159.
