formly greater advantages under systems which preserve some memento of his earlier condition than under those which have adopted some other theory of his civil degradation. The point of view from which jurisprudence regards the Slave is always of great importance to him. The Roman law was arrested in its growing tendency to look upon him more and more as an article of property by the theory of the Law of Nature; and hence it is that, wherever servitude is sanctioned by institutions which have been deeply affected by Roman jurisprudence, the servile condition is never intolerably wretched. There is a great deal of evidence that in those American States which have taken the highly Romanised code of Louisiana as the basis of their jurisprudence, the lot and prospects of the Negro-population were better in many material respects, until the letter of the fundamental law was overlaid by recent statutory enactments passed under the influence of panic, than under institutions founded on the English Common Law, which, as recently interpreted, has no true place for the Slave, and can only therefore regard him as a chattel.

CHAPTER XIX

CAPITIS DEMINUTIO1

CAPITIS deminutio is the destruction of the 'caput' or legal personality. Capitis deminutio, so to speak, wipes out the former individual and puts a new one in his place, and between the old and the new individual there is, legally speaking, nothing in common. A juristic personality may be thus destroyed in one of three ways: (1) by loss of the status libertatis. This is the capitis deminutio maxima;

(2) by loss of the status civitatis. This is the capitis deminutio media (magna);

(3) by severance from the agnatic family. This entails capitis deminutio minima.

Capitis deminutio maxima means the loss of a man's entire juristic personality. Capitis deminutio media and minima merely mean the loss of the particular juristic personality which a man has hitherto possessed.

L

To undergo capitis deminutio maxima is to forfeit one's liberty. A Roman civis may, like others, become a slave, e.g. if he is condemned for a crime, or taken a prisoner of war. If, however, a Roman citizen returns from captivity, he becomes, at the moment of his return, a Roman citizen again and recovers all those rights which he had forfeited by his capitis deminutio in just the same manner as though he had never lost them. He becomes once more the paterfamilias of his children, the owner of his property, the creditor of his debtors, and so on. In a word, he becomes the subject of all the legal relations which his captivity had extinguished for him, to the same extent as though he had never been a prisoner of war at all. This is the nature of the so-called 'jus postliminii.' Let us suppose, however, that the Roman civis in question does not return, but dies in captivity. At the time of his death he is clearly not a civis Romanus, but a slave. Is then the

1

[By RUDOLPH SOHм. Reprinted by permission from "The Institutes of Roman Law" (Ledlie's trans.), Oxford University Press, 1892.]

will which he executed at home, before he was taken prisoner, void or not? And, to go a step further, since a slave cannot have any heirs, can he (the prisoner) have heirs or not? All these difficulties were solved by the so-called 'fictio legis Corneliae,' by which a Roman civis, dying in captivity, is assumed by a fiction to have died a Roman citizen; consequently (argued the jurists), he shall be deemed to have died at the very moment of being taken prisoner. Capitis deminutio media (or magna) is loss of citizenship unaccompanied by loss of liberty; it occurs e.g. when a Roman citizen emigrates to a Latin colony. But in Justinian's time, since every member of the Roman empire who was free was, at the same time, a Roman citizen, media capitis deminutio is only possible in the case of banishment, i.e. expulsion from membership of the empire.

Severance from one's agnatic family also operates as a capitis deminutio (viz. minima), a destruction of one's personality. For it is in the family that the essence and force of a legal personality lie. To change one's family, therefore, is to change one's personality; it means the destruction of the old personality and the birth of a new one.

The word 'family,' however, in the legal signification of the term, means, according to the civil law of Rome, something very different from what we are accustomed to associate with the term. By family we mean the aggregate of all persons who are connected by ties of blood-relationship, the aggregate of all members of one and the same stock. But a Roman family, within the meaning of the jus civile, means the aggregate of all those who belong to one and the same household, who are subject to one and the same 'domestic power' (patria potestas), or, at any rate, would be thus subject, if the common ancestor were still living. This is what is meant by the term 'agnatio.' And the civil law recognizes no other kind of relationship but agnatio; it knows nothing of cognatio or blood-relationship. Thus the family of the Roman civil law means the agnatic family. A peculiar characteristic of this agnatic family is that it can be changed. Blood-relationship cannot be destroyed, and a cognatic family, or family in the modern sense, does not admit of change. But a person can separate himself from an agnatic family, because he can separate himself from the household, i.e. from the community of those who stand under the same patria potestas. And this is what happens to a daughter who contracts a marriage and thereby enters the marital (i.e. domestic) power (manus) of her husband ('in manum conventio'), or of the

person under whose patria potestas her husband stands. Having passed from one patria potestas to another, she has thereby changed her family (her agnatic family, namely); she has changed her entire circle of relations (agnatic relations, namely); in a word, she has undergone a complete change of personality. The same thing happens to a filiusfamilias, when his father sells him into bondage (mancipium), or gives him in adoption (datio in adoptionem); and again to a person sui juris, when he suffers himself to be adopted by another (arrogatio); or lastly, to a filiusfamilias, when his father emancipates him from the paternal power (emancipatio). And it is to be noted that in spite of the fact that the emancipatus actually improves his outward position by becoming a paterfamilias instead of a filiusfamilias, he nevertheless undergoes capitis deminutio, because the rupture of his agnatic ties involves the destruction of his previous legal personality and the creation of a new one.

Capitis deminutio minima, then, means the severance from one's agnatic relationship, and it occurs in five cases, viz. in the case of 'mancipio dare,' of 'in manum conventio,' of 'datio in adoptionem,' of 'arrogatio,' and of 'emancipatio.'

There were two further incidents of capitis deminutio minima which flowed as consequences from the destructive effect which capitis deminutio minima had in common with the other forms of capitis deminutio. Firstly, it was a rule of civil law that capitis deminutio minima extinguished the contractual debts of the capite minutus. The praetor, however, subsequently restored to the creditors their rights of action by means of in integrum restitutio. Secondly, it extinguished all personal servitudes to which the capite minutus had been entitled, i.e. all such jura in re aliena as had belonged to him for life. This latter rule was only abolished by Justinian. According to the law as laid down in the Corpus juris personal servitudes are only extinguished by capitis deminutio maxima and media.

CHAPTER XX

EXISTIMATIONIS MINUTIO1

THE term 'honour' refers, in the first instance, only to social relations. To be honoured' is to be allowed one's full worth in society. Society treats those as entitled to honour who act in adherence to its views. The award or denial of honour, in other words, of social worth, is the sanction by means of which society enforces on individuals not merely the commands of law and morality, but more specifically the decrees of mere usage which may conceivably run counter to law and morality. The particular kind of conduct which society requires from the individual assumes different forms in reference to the different sections into which society is divided, and it is in this sense that we speak of the honour of a particular class, of military honour, professional honour, and

so on.

The effect which social relations and social views produce upon the law, finds expression in the legal rules concerning 'existimatio' or 'civic honour.' The law yields, to some extent, to the judgment pronounced by society and, in certain circumstances, imposes legal disabilities on persons whom society has declared to fall short of the standard it requires. Civic honour (in the legal sense) means full qualification in the eye of the law. Loss of honour (in the legal sense) means partial disqualification in the eye of the law.

The civic honour of a civis Romanus may be destroyed (consumtio existimationis), viz. by capitis deminutio maxima or media; or it may be merely impaired (minutio existimationis). And it is in this last and narrower sense that the expression 'loss of civic Rhonour' is technically applied. Minutio existimationis may be defined as the impairment of a man's civic honour which, without producing capitis deminutio (in other words, without destroying his previous personality), merely operates to diminish his personal qualifications in the eye of the law.

[By RUDOLPH SоHм. Reprinted by permission from "The Institutes of Roman Law" (Ledlie's trans.), Oxford University Press, 1892.]