limitation, and in many the deduction of new doctrines from the
actual jus scriptum, and their develo ment and exposition. An
event that did much to diminish the influence of the pontiffs in
connexion with it was the divulgement in the year 304 B.C., as already
mentioned, by Cn. Flavius, of a formulary of actions and a calendar
of lawful and unlawful days, which got the name of Jus Flavianum.
The practice adopted in the beginning of the 6th century by Tiberius
Coruncanius, the first plebeian chief pontiff, of giving advice in law
in public had a still greater effect in popularizing it; and the
Tripertita or Jus Aelianum, some fifty years later—a collection that
included the Tables, the interpretatio and the current styles of
actions—made it as much the heritage of the laity as of the pontifical
college.
Subsequent Legislation.—Of legislation during the 4th and 5th centuries that affected the private law we have but scanty Subsequent legislation. record. The best-known enactments are the Canuleian law of 445 B.C. above mentioned; the Genucian, Marcian and other laws about usury and the rate of interest; the Poetilian law of 326 B.C. abolishing imprisonment of nexal debtors by their creditors; the Silian law, probably not long afterwards, which introduced a new form of process for actions of debt; and the Aquilian law about 287 B.C., which amended the decemviral provisions for actions of damages for culpable injury to property, and continued to regulate the law on the subject even in the books of Justinian.
iii. Development of the Substantive Institutions of the Law.
The Citizen and his “Caput.”—The early law of Rome was essentially personal, not territorial. A man enjoyed the benefit The citizen and his “caput.” 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 Romans 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 international 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 peregrinus[1]—in time came to be regarded as entitled to all the rights recognized by so-called jus gentium 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 exclusive character than those of the jus 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 position 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 paterfamilias 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.
Whenever a citizen either ceased altogether to be a member of a Roman family or passed, either permanently or temporarily, “Capitis deminutio.” into subjection to some paterfamilias outside his own family,[2] there was technically capitis minutio or deminutio. To harmonize with the gradually established conception of jural personality in non-citizens, and perhaps also from their partiality for tripartite divisions, the jurists about the end of the Republic divided capitis deminutio into three degrees, viz. maxima, media and minima—a division unknown to lawyers of an earlier period when civitas was theoretically identified with libertas. 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 loss (deminutio) of his capacity was only media or minor; it was his rights and privileges under the jus civile that alone were affected. When both freedom and citizenship remained, and there was produced merely the severance of connexion with a particular family (familiae mutatio), the loss was said to be minima. Illustrations of c. d. minima present themselves in the case of a paterfamilias becoming filiusfamilias by adrogation, or a materfamilias passing into the hand of a husband by confarreation or coemption; in both cases he or she who had been sui juris thereby became alieni juris. It was immaterial whether the change was from a higher family position to a lower, or from a lower to a higher,[3] 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 subjection to a new potestas. Thus the civil personality of Titius while a filiusfamilias in the potestas of Sempronius, e.g. the expectancy of succession, the agnatic relationships, the derivative capacity for being a party to a mancipation or a sponsio that resulted from the relationship, all came to an end through the subjection to a new paterfamilias, temporary or permanent. He might acquire another and independent capacity on becoming sui juris by emancipation, or another derivative capacity on passing into the potestas of Maevius by adoption; but while subject to a new paterfamilias his old personality quoad civilia was extinguished. This is what some of the jurists mean when they say that capitis deminutio was civil death.[4]
An important consequence of minima capitis deminutio 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 guardianship, assuming always that it was a tutela legitima or agnatic cura furiosi. Very remarkable, yet quite logical, was the doctrine that the minutio extinguished the claims of creditors 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
- ↑ Neither “alien” nor “foreigner” is an adequate rendering of peregrinus. For peregrini included not only citizens of other states, independent or dependent, but also ἀπόλιδες,—men who could not call themselves citizens (cives) at all, as, for example, the dediticii whom Rome had vanquished and whose civic organization she had destroyed, offenders sent into banishment, &c., and also, until Caracalla's general grant of the franchise, the greater portion of her provincial subjects.
- ↑ This is Mommsen's theory. See Staatsrecht, iii. 1. p. 8.
- ↑ Children who became sui juris by their parent's death, as they came under no new potestas, were not regarded as capite minuti.
- ↑ Owing to the ill-defined views among the Roman jurists themselves regarding the nature of cap. dem. various theories more or less divergent have been maintained about it by modern writers, of none of which can it be said that it has been generally accepted. Mommsen's theory, above adopted, seems to present fewest difficulties. See the subject discussed and authorities cited by Goudy in 2nd edition of Muirhead's Historical Introduction, pp. 422-27.
