Gai. iii. § 153-civili ratione capitis diminutio morti coaequatur.' Next, as to the effect of capitis diminutio. (1) In general: the maxima' and 'media' destroy all legal relations dependent upon freedom or citizenship, whilst by capitis diminutio minima’ only such relations are terminated as, arising out of Civil Law, depend upon the earlier family status. Ulp. Servitutem mortalitati fere comparamus. Id.: -deportatos mortuorum loco habendos. Inst. i. 16, 6: Si maxima capitis deminutio BOOK II. Ulp. Capitis minutio" privata hominis et a Sc. minima. familiae eius iura, non civitatis amittit.-1. 6, D. h. t. Paul. Si libertate adempta capitis deminutio subsecuta sit, nulli restitutioni adversus servum locus est, quia nec praetoris iurisdictione ita servus obligatur, ut cum eo actio sit. Sed utilis actio adversus dominum danda est, ut Iulianus scribit, et nisi in solidum defendatur, permittendum mihi est in bona quae habuit mitti.-1. 7, § 2 eod. manumitted, because a slave has no right, consequently can suffer no abatement of status-for on the day [of the manumission] he begins to have a status. 1 By the doctrine of the ius civile, loss of status is tantamount to death. 2 See p. 168. 3 Persons deported must be regarded as dead. If the highest degree of abatement of status take place, cognatic rights also are destroyed. Indeed, if a man have been deported to an island, cognatic relationship is extinguished. The [i.e., lowest] abatement of status works the loss of a man's private and family rights, not that of citizenship. 6 • If an abatement of status have ensued from deprivation of BOOK II. a Gai. i. 136, § 55. Gai. iii. 114. But not claims ex delicto. d D. 4, 5, 2, I; Or 'ana logous': cf. Abdy and Walker on Inst. ii. I, 34 (2) Particular effects of the minima capitis diminutio are the destruction of the existing agnatic relationship, although without attainment of rights of agnation in the new familia; a the extinction of certain rights and the destruction of claims ex iure civili against the capite minutus'; but in the latter respect the Praetorian Edict aided by renewed grant of actions against the person, and by the grant of real execution against his property, although he had ceased to be a personal debtor.d Gai. i. § 158: Sed adgnationis quidem ius capitis diminutione perimitur, cognationis vero ius eo modo non commutatur: quia civilis ratio civilia quidem iura corrumpere potest, naturalia vero non potest.' Ibid. § 83 per capitis diminutionem pereunt (quales sunt) ususfructus, operarum obligatio libertorum, quae per iusiurandum contracta est, et lites contestatae [constituto?] legitimo iudicio.* Ibid. § 84: de eo vero quod proprio nomine eae personae debuerint, licet neque pater adoptivus teneatur, neque coemptionator, neque ipse quidem qui se in adoptionem dedit quaeve in manum convenit, maneat obligatus obligatave, quia scilicet per capitis diminutionem liberetur, tamen in eum. eamve utilis actio datur rescissa capitis diminutione, et si adversus hanc actionem non defen freedom, restitution does not obtain against a slave, because not even by the praetor's jurisdiction is a slave under obligation, for an action to lie against him. But, as Jul. writes, an equitable action should be given against the master, and unless he is defended in respect of the whole, I must be allowed to assume possession of the effects that belonged to him. 1 But while the right of agnation is destroyed by cap. dim., the right of cognation is not so changed; for though a doctrine of ius civile can impair civil, it cannot destroy natural rights. -things that perish through cap. dim. (such as) usufruct, an undertaking for services of freedmen which has been contracted by oath, and the joinder of issues by (the obtaining of) a legitimum iudicium. dantur, quae bona eorum futura fuissent, si se Id. iv. § 38: Praeterea aliquando fingimus, Civic Reputation is the public appreciation and recognition of his dignity, to which every man has claim as a Person and a member of the State. The basis of full civic reputation, as of full capacity for rights, in Roman Law is Citizenship. Loss of citizenship, coupled with 1 But with regard to debts which such persons owed on their own account, although neither the adoptive father nor the coemptionator is liable, and neither the man who has given himself in adoption nor the woman who has come under manus remain liable, as being relieved by the cap. dim., yet an analogous action is granted against him or her, the cap. dim. being cancelled; and if no defence is put in for them against this action, the praetor allows the crediters to sell all the effects that would have been theirs if they had not subjected themselves to another's authority. 2 Moreover, we sometimes employ the fiction that our opponent has not experienced cap. dim.; for if any man or woman be bound to us on a contract, and suffer cap. dim., as a woman by coemption, or a man by arrogation, the person is no longer under liability to us by the i. c., nor can it be directly maintained that he or she ought to give'; but to prevent either of them impairing our right, a utilis actio has been invented as against him or her, their cap. dim. being cancelled; i.e., one in which there is a fiction that he or she has not experienced cap. dim. BOOK II. Part 1. BOOK II. capital punishment, carries with it also the loss of Roman honour. But, besides, any man's civic reputation can be merely diminished, so that he retains citizenship, though it is curtailed as to some rights: this abatement of reputation, which arises by virtue of a legal precept, is INFAMY. The legal conception of 'infamia' rests essentially upon habit and custom, the recognition and operation of which were especially procured by the cena Nota censoria, sors by means of their official power," as well as by the limited in ope- other magistrates in the conduct of elections and the decision appertaining to that upon qualification to vote, censor's service. and in legal sentences; it attained full development in the Praetorian Edict. tribu morere,— ration to the period of the And in the 1. Iulia muni cip. (§ 7). From 'infamia' must be distinguished the mere de facto abatement of honour, which consists in reproachable conduct or ill-repute of a person (turpitudo, ignominia, turpis persona). This is not a legal conception, and comes into question jurally alone when the judge or magistrate, in some decision or ordinance, has to take into account the moral character of such person. Callistr. Existimatio est dignitatis illaesae status legibus ac moribus comprobatus, qui ex delicto nostro auctoritate legum aut minuitur aut consumitur. § Minuitur existimatio, quotiens manente libertate circa statum dignitatis poena plectimur, sicuti cum relegatur quis. . . vel cum in eam causam quis incidit, quae edicto perpetuo infamiae causa enumeratur. § Consumitur vero, quotiens magna capitis deminutio intervenit, veluti cum aqua et igni interdicitur.—D. 50, 1 3, 5, §§ 1-3.1 1 Reputation is the condition of unimpaired dignity, established by laws and customs, which, by virtue of the laws, is either lessened or destroyed by our fault. § Reputation is lessened whenever, while retaining our freedom, we suffer penal punishment in respect of the status appertaining to our dignity; as when a man is banished . . . or when any one lapses into that condition which, in the perpetual edict, is assigned as a cause of infamy. § But it is destroyed whenever great abatement of status occurs, as when a person is interdicted fire and water. Gell. xv. 13, § II: Item ex XII tabulis id est : QVI SE SIERIT TESTARIER LIBRIPENSVE FVERIT, NI Gai. Cum lege quis intestabilis iubetur esse, The ground of 'infamia' is always conduct dishonourable according to Roman sentiment. As regards parti cular cases of infamy, it sometimes appears as the im mediate result of certain notorious, dishonourable acts or BOOK II. Part I. conditions; at other times, as the effect of a judicial a Ulp. xiii. 1, 2. sentence (actiones famosae) or magisterial decree. Ulp. Probrum et opprobrium idem est; probra quaedam natura turpia sunt, quaedam civiliter et quasi more civitatis: ut puta furtum, adulterium natura turpe est; enimvero tutelae damnari, hoc non natura probrum est, sed more civitatis nec enim natura probrum est quod potest etiam in hominem idoneum incidere.D. 50, 16, 42.3 Praetoris verba dicunt: INFAMIA NOTATVR 1 And so it is according to the Twelve Tables: 'He that shall allow himself to be summoned as a witness or shall be balanceholder, in default of his vouching as witness, shall be a marked man and incapable of acting as a witness. 2 When a man is by statute declared to be incapable of testation, that comprehends the non-reception of his testimony, and more than that, as some are of opinion that testimony neither should be given in his own favour. Some outrageous 3 Probrum and opprobrium are the same. acts are by Nature disgraceful, some according to the ius civile, and, as it were, by the custom of the State; e.g., theft and adultery are by Nature disgraceful, but to be condemned in the action of guardianship is not by Nature outrageous, but is according to the custom of the State; for indeed that is not by Nature outrageous which can even befall an upright man. |