Institutes of Roman Law. Gaius
who made infamy not only a consequence of condemnation in any criminal trial (publicum judicium), but also of condemnation in certain civil actions founded on delict, such as theft, rapine, outrage, fraud; or on certain contracts, such as partnership, agency (mandatum), deposit; or on quasi contract, such as guardianship; or of insolvency (bona possessa, proscripta, vendita); or, without any judicial condemnation, was annexed to certain violations of the marriage laws, such as bigamy or the marriage of a widow before the termination of her year of mourning, and to the pursuit of certain professions, such as that of stage-player or gladiator. In some of these latter instances consuetudinary law, as above intimated, inflicted positive sanctions on acts that originally had only been prohibited by the law of honour. In view of these consequences, infamia may at one time have been regarded as capitis minutio. Cicero pro Quinctio speaks of a suit involving existimatio as a causa capitis (cf. pro Rosc. Com. 6), and Tertullian, the father of the Church, who was noted for his knowledge of Roman law, and possibly was identical with the jurist of that name, of whom five fragments are preserved in the Digest, speaks of infamia as capitis minutio, De Spectaculis, 22, Scenicos manifeste damnant ignominia et capitis deminutio. But the political rights of civitas had ceased to be of importance under the emperors, and we are expressly told in the Digest that only death or loss of citizenship can be understood to affect a man’s caput, Modestinus in Dig. 50, 16, 103.
Besides extinguishing the political or public elements of civitas, infamia affected to a certain extent its private elements, both commercium and connubium; the former, as we shall see, in respect of the office of cognitor, 4 § 124 (cf. Dig. 3, 1, de postulando), and the latter in respect of the disabilities of celibacy under the lex Julia, which were not removed by marriage with an infamis. Both these classes of disability had practically vanished even before they were abolished in the time of Justinian.
This seems the proper place to notice certain inequalities of condition, analogous to the old distinctions of status, which grew up subsequently to the time of Gaius in the later ages of Rome, and some of which survived the fall of the Roman empire. From the establishment of the empire the army was caressed by each succeeding despot, and privileges of various kinds were so accumulated on the military service, that the relation of the soldiery to the rest of the world very much resembled the ancient relation of Romanus to peregrinus. The pre-eminence of the military caste was the result of elevation; other unprivileged castes were created by depression. As the new religion grew to political power, zealous legislators were eager to promote its ascendency by the means of political sanctions. Pagans, Jews, heretics, apostates, protestants, papists, were successively frowned upon by the legislator, and for a long season subjected to incapacities and disabilities as great as, or greater than, those which weighed upon infames: until by a change in political conceptions these inequalities of right have been again levelled and almost obliterated in most of the codes of modern Europe. See also the remarks on Colonatus, 3 § 145.
§ 162. In the category of domestic position there are three classes, (1) sui juris, or paterfamilias and materfamilias; (2) filiusfamilias and filiafamilias; and (3) mancipium: but there are only two possible degradations, (1) from sui juris to alieni juris, which occurs in adrogation and the in manum conventio of a woman previously independent; and (2) from filius- or filiafamilias to mancipium, which occurs in noxal surrender, in emancipation, in adoption as implying mancipation, and in the remancipation of a woman by her husband or the person who held her in manu in virtue of a fiduciary coemption. The descent from sui juris to mancipium cannot occur, because the only persons capable of passing into the condition of mancipium by the process of mancipation were filius- and filiafamilias and women in manu, i. e. persons already alieni juris.
In the exposition of capitis minutio, and particularly of the third and last kind, I have adopted the theory of Savigny as being the most tenable, and forming the most harmonious system of legal conceptions. I must now briefly notice an opposing theory, and the objections that may be raised against that of Savigny. Some expositors hold that capitis minutio minima did not necessarily and essentially involve any degradation, any downward step on the ladder of status, but might be merely a horizontal movement on the same platform, a transit from family to family, a disruption of the ties of agnation, a cessation of membership in a given civil group. (See on this subject Dr. Moyle’s Excursus, Inst. Bk. 1, and Professor Goudy’s App. to Muirhead’s Roman Law, second ed., p. 426, where Mommsen’s explanation is given.) This opinion is founded on the authority of Paulus, undeniably an eminent juris auctor, who defines the least diminution of head as follows: Dig. 4, 5, 11. ‘Capital diminution is of three orders, greatest, minor, least; as there are three things that we have, liberty, citizenship, family. The universal loss of freedom, citizenship, family, is the greatest capital diminution; loss of citizenship while liberty is retained is minor capital diminution; when liberty and citizenship are retained, and family only is changed, there is the least capital diminution.’ Consistently with this definition Paulus affirms that the children of adrogatus suffer capitis minutio minima: Dig. 4, 5, 3 pr. ‘The children who follow an adrogated parent suffer capital diminution, as they are dependent and have changed family’: here, then, if Paulus is right, we have capitis minutio without any degradation, any loss of rank; for the children of adrogatus have the same status of filiifamilias after their father’s adrogation as they had before, although in a different family. The proposition, however, that the children of adrogatus suffer capitis minutio is not confirmed by any other jurist, and Savigny supposes that the doctrine was peculiar to Paulus, and was in fact inaccurate. Another objection to the theory of Savigny, though not so serious as the opposing authority of Paulus, is presented by the operation of in manum conventio.
When an independent woman made a coemption she undoubtedly declined in status, as before coemption she was sui juris, and after coemption she is filiafamilias. But a filiafamilias who made a coemption apparently suffered no degradation: the definitive result of the coemption leaves her, as before, filiafamilias, and that, apparently, without having passed through any lower stage; for Gaius expressly says that the lex mancipii, or formula of mancipation in coemption, was not calculated to reduce the woman to a servile condition, § 123. Gaius tells us, however, that coemption operates a capitis minutio, § 162, without limiting the effect to the case of a woman sui juris. The operation of coemption to produce capitis minutio is also mentioned by Ulpian, and again without any express limitation to the case of an independent woman: 11, 13. ‘There is least capital diminution when both citizenship and freedom are unimpaired, and only position in household life is changed, as occurs in adoption and subjection to hand.’ If filiafamilias underwent capitis minutio when she made a coemption, her case disproves our theory that all capitis minutio requires degradation: but Savigny assumes that, though in these passages there is no express limitation to the case of independent women, yet this limitation must be understood; and there is nothing outrageous in this supposition.
While, however, these objections to the hypothesis of Savigny are doubtless serious, on the other hand they are compensated by legal facts which seem absolutely irreconcilable with the adverse hypothesis, the cases of Flamen Dialis and Virgo Vestalis. Gellius, 1, 12. ‘As soon as a vestal virgin is selected and conducted to the shrine of Vesta and delivered to the pontifices, she instantaneously, without emancipation and without capital diminution, is freed from parental power and acquires testamentary capacity. . . . . Moreover, in the commentary of Labeo on the Twelve Tables it is stated that a vestal virgin is neither heiress-at-law to any one who dies intestate nor, if she herself die intestate, leaves any heir-at-law, and that in this event her property lapses to the state.’ For Flamen Dialis, see 3 § 114. If mere transit from a family and ceasing to belong to a given group of agnates constituted capitis minutio, and was its definition, then the vestal virgin must inevitably have suffered capitis minutio; the fact that she did not, in spite of leaving her family and snapping the agnatic tie, is at once conceivable, on the supposition that there is no capitis minutio without degradation.
Unless capitis minutio minima involved a downward step on the stair of status, it has no analogy to the other forms of capitis minutio, and it is not obvious why it should have the same generic appellation, or why it should be handled in the same department of the code. The rupture of the ties of agnation, extinguishing rights of intestate succession, might be a loss, but it was not a loss from inferiority of privilege; it was a loss of an equal among equals; it was more like the loss of dos which a husband might incur by divorce of his wife, or an heir