Roman Public LifeGreenidge, A. H. J. (Abel Hendy Jones)
History
Roman Public Life
Greenidge, A. H. J. (Abel Hendy Jones)
Constitutional history -- Rome; Rome -- Politics and government
(i.) _Capitis deminutio maxima_ was the loss of _civitas_ and _libertas_,
consequent on a man’s becoming a prisoner of the enemy. With the loss
of freedom, political and therefore private rights[546] ceased _ipso
jure_ to exist. The obligations of international law might also produce
this condition; the Roman general who concluded a treaty with the enemy,
which the people would not accept, was handed over as a scapegoat for the
broken faith of the community[547] (_deditus_), and similar treatment
was meted out to one who had violated the sanctity of envoys,[548] or
to a general who had made war with a state in alliance with Rome.[549]
This loss of status was also produced by the civil law, in so far as it
enjoined slavery as a penal measure—e.g. in the case of the _incensi_ or
of those who shirked military service[550]—or permitted the sale of the
debtor or of the child into a foreign land.[551]
(ii.) _Capitis deminutio media_ (or _minor_[552]) was the loss of
_civitas_ alone.
This might be voluntarily incurred by the assumption of the citizenship
of another town, for the principle of the older Roman law was that a man
might not be a member of two independent communities.[553] The exile
from Rome which followed condemnation for a criminal offence was of
this type of rejection of citizenship, for the exile was always assumed
to be a voluntary act. Enforced abstention from the Roman _civitas_,
which necessitated a continuance in exile, was produced by the decree of
outlawry (_aquae et ignis interdictio_)[554] often passed by the people
against an individual who was in voluntary banishment for a crime.
(iii.) _Capitis deminutio minima_—originally a loss of family rights—was
improperly construed by the later jurists as a change of family
status.[555] Its applications have been already considered.[556]
There were means of recovering the status lost in either of these
three modes. The loss of _familia_ in its original sense[557] might
be recovered by emancipation; the loss of _civitas_, if enforced by
the state, by a special act repealing this disability (the _restitutio
in integrum_ of the criminal law). _Libertas_ could be regained by
the exercise of a right known as the _jus postliminii_. The return,
unintentional or premeditated, of the captive within the limits of his
own country destroyed the state of bondage, and restored the _ingenuitas_
and the rights of the former prisoner. Although described as a legal
fiction[558] it was a direct consequence of the simple principle that a
Roman could not be enslaved on Roman soil.
Public-domain text, read in full here on John Shaqi.
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