a BOOK II. loco constituuntur, adeo quidem ut ab eo, cuius in mancipio sunt, neque hereditatem neque legata aliter capere possint, quam si simul eodem testamento liberi esse iubeantur, sicuti iuris est in persona servorum.1 Ibid. § 141: In summa admonendi sumus, adversus eos quos in mancipio habemus, nibil nobis contumeliose facere licere: alioquin iniuriarum actione tenebimur.2 Mancipium' arises by exercise of the right of sale which belongs to the pat. fam. of some person, and so by mancipatio of the 'persona subiecta' to a third person. At first indeed the 'mancipii causa' was always originated as a real and continuous relation of Power, through the sale of the child by the pat. fam. into foreign servitude, partly for the sake of personal Gai. i. 118 gain, partly for the maintenance of such child.a In later Law mancipatio occurs— Paul. Sent. v. Cum pacto fiduciae. • Adoption, Emancipation, termination of manus: see Gai. i. 134, ibid. § 132 and §§ 114-5. d Gai. iv. 75; Just. iv. 8, 7.As to the form, see note on $50. . b (1) for the most part merely dicis gratia,' in view of creating or of dissolving a domestic relation of Power, so that the mancipii causa' is only a momentary relation. Gai. ibid. Ac ne diu quidem in eo iure detinentur homines, sed plerumque hoc fit dicis gratia uno momento; nisi scilicet ex noxali causa mancipentur.3 (2) Mancipatio, however, may occur exceptionally of set purpose, as in the 'noxae deditio; ›d the man 1 Persons of either sex mancipated by ancestors or by coemptionatores are set in the position of slaves to such an extent that not even can they take either an inheritance or legacies from him in whose mancipium they are, unless by the same testament they are bidden to be free, as the rule is in the case of slaves. 2 We must finally observe that we are not allowed to treat with indignity those whom we hold in mancipio; otherwise we shall be liable to an action for injuries. Indeed, men are not kept in this condition long, but in general it happens for form's sake, for a moment, unless, that is, they are mancipated because of their tortious act. cipium is consequently originated as a permanent condition. Gai. iv. § 79: Cum autem filiusfamilias ex noxali causa mancipio datur, diversae scholae auctores putant, ter eum mancipio dari debere, quia lege XII tabularum cautum sit, ne filius de postestate patris aliter exeat, quam si ter fuerit mancipatus: Sabinus et Cassius ceterique nostrae scholae auctores, sufficere unam mancipationem crediderunt, et illas tres legis XII tabularum ad voluntarias mancipationes pertinere.1 'Mancipium' is terminated by remancipation and by release, but not by the death of the master. Gai. i. §§ 138-140: Ii qui in causa mancipii sunt, quia servorum loco habentur, vindicta censu testamento manumissi sui iuris fiunt. & Nec tamen in hoc casu lex Aelia Sentia locum habet. -§ Quin etiam invito quoque eo cuius in mancipio sunt, censu libertatem consequi possunt, excepto eo quem pater ea lege mancipio dedit, ut sibi remancipetur; nam quodammodo tunc pater potestatem propriam reservare sibi videtur eo ipso quod mancipio recipit. Ac ne is quidem dicitur invito eo, cuius in mancipio est, censu libertatem consequi, quem pater ex noxali causa mancipio dedit, veluti quod furti eius nomine damnatus est et eum mancipio actori dedit: nam hunc actor pro pecunia habet." 1 But when a fil. fam. is given up by mancipation, on the ground of a wrongful act, the leaders of the opposite school consider that he ought thrice to be given by mancipation, because by a law of the Twelve Tables it has been provided that, unless a son be thrice mancipated, he shall not pass out of paternal power. Sab. and Cass. and the other leaders of our school supposed that one mancipation is enough, and that the three mancipations derived from the Twelve Tables relate to such as are voluntary. 2 Inasmuch as those in the condition of mancipia are regarded as in the position of slaves, they become sui iuris when manu BOOK II. Part I. a BOOK II. $33. Coll. ii. 3: Per hominem liberum noxae deditum si tantum adquisitum sit, quantum damni dedit, manumittere cogendus est a praetore qui noxae deditum accepit.-(Papin.)' § 56. CAPITIS DIMINUTIO. The legal personality, i.e., in general the civil existence, of the civis Romanus, especially the personality of the individual under Private Law as bearer of a concrete aggregate of rights, is designated by the expression 'caput.' The caput of the individual is annexed to his status,a that is, conditioned and determined by three prerequisites: Freedom, Citizenship, ¿ I.e., belonging Family position. Every change in one of these three relations personally experienced by the civis Romanus sona sui iuris, also operates destructively upon his existing aggregate of rights, and, as the destruction of his existing personality, is called capitis di- [or de] minutio.' According as the freedom or the citizenship of which that is the condition, or the family position which is conditioned by the citizenship, alone as prerequisite of the legal position is lost, a distinction is made between 'capitis to a certain familia as 'per or alieno iuri subiecta.' mitted by vindicta, census or testament. Nor does the l. Aelia Sentia apply to their case; nay more, they may obtain freedom by the census even against the will of the person who holds them in mancipio, except him whom the father has given by mancipium upon condition that he is remancipated; for in such a case the father is considered in some way to reserve his own power from the very fact that he receives him back from mancipium; and it is said, too, that he cannot obtain freedom by the census against the will of the person holding him in mancipio, whose father gave him by mancipation upon the ground of a wrongful act; for instance, when the father has on his account been condemned in an action of theft, and has surrendered him to the plaintiff, for the plaintiff holds him in lieu of money. 1 If any one have obtained through a freeman surrendered for an injury as much as the injury that was done amounted to, the praetor who received the man so surrendered must require such person to emancipate him. diminutio maxima (s. magna),'a media (s. minor),'b and minima.' Paul. Capitis deminutionis tria genera sunt: maxima, media, minima; tria enim sunt, quae habemus libertatem, civitatem, familiam. Igitur cum omnia haec amittimus, hoc est libertatem et civitatem et familiam, maximam esse capitis deminutionem; cum vero amittimus civitatem, libertatem retinemus, mediam esse capitis deminutionem, cum et libertas et civitas retinetur, familia tantum mutatur, minimam esse capitis deminutionem constat.-1. II, D. h. t. (=de cap. min. 4, 5).' Gai. i. §§ 159-60: Est autem capitis diminutio prioris status permutatio; eaque tribus modis accidit.-Maxima est capitis deminutio, cum aliquis simul et civitatem et libertatem amittit.2 Whilst the capitis diminutio 'maxima' and 'media' plainly destroy the caput of a Roman citizen (and so personality or legal capacity in general, or only that according to ius civile), the minima' capitis diminutio is the mere destruction of the existing caput, the place of which is taken by another, so that he who is affected by it is acounted by Civil Law as a new private Person. A 'minima' capitis diminutio is experienced by such as without loss of citizenship (by an event affecting himself) exchanges his status for a new one, and loses his position in the existing familia; There are three orders of loss of status, greatest, intermediate, and least; for we have three things: liberty, citizenship, and family rights. When accordingly we lose all three, that is libertas, civitas, and familia, it is the greatest loss of status; when we lose citizenship, [but] retain freedom, there is the intermediate loss of status; but if freedom and citizenship are retained and family rights alone lost, that is the least loss of status. 2 Now capitis diminutio is a change of one's former status, and this happens in three ways.-There is the greatest cap. dem. when a person at the same time loses both citizenship and liberty. a b BOOK II. and it is immaterial whether his legal position is thereby actually improved or impaired. This happens when a persona sui iuris' is subjected to some one's Arrogation, patria potestas; or if a person subject to Power becomes sui iuris by an act of Civil Law, and so forms for himself a new familia; or if a person › Emancipation, subject to Power passes into the Family Power of manumissio ex another. с in manum conventio of the woman free from Power. mancipio: cf. Gell. 1, 12, 9 and 13 (§ 53). Adoption, arrogation in respect of the children of the one arrogated, mancipatio, in manum conven tio of the filiafamilias: cf. § 49. Gai. i. § 162: Minima capitis diminutio est, cum et civitas et libertas retinetur, sed status hominis commutatur; quod accidit in his qui adoptantur, item in his quae coemptionem faciunt, et in his qui mancipio dantur, quique ex mancipatione manumittuntur: adeo quidem ut quotiens quisque mancipetur aut manumittatur, totiens capite diminuatur.' Liberos qui adrogatum parentem sequuntur, placet minui caput, cum in aliena potestate sint et cum familiam mutaverint. § Emancipato filio et ceteris personis capitis minutio manifesto accidit, cum emancipari nemo possit, nisi in imaginariam servilem causam deductus; aliter atque cum servus manumittitur, quia servile caput nullum ius habet ideoque nec minui potest: -hodie enim incipit statum habere.—1. 3 (Paul.), 1. 4 (Mod.), D. h. t.2 1 There is the least abatement of status when both citizenship and liberty are retained, but the status of the individual is changed, which happens in the case of those who are adopted, likewise in the case of those who perform a coemption, and in the case of those who are given by mancipium, and those that are manumitted after mancipation; so that indeed as often as a man is mancipated or is manumitted, so often does he suffer an abatement of status. 2 It is held that children who follow their arrogated parent experience an abatement of status, since they are under the power of another, and have changed their family. An abatement of status plainly befalls an emancipated son and other persons, since no one can be emancipated save as he is ostensibly led away into servitude. It is otherwise when a slave is |