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
The limitation by which a series of civil rights is destroyed is spoken
of as a “lessening of _caput_” (_capitis deminutio_). It is in every
case an infringement of rights already possessed by the individual. Now
the loss of public rights could only follow on a loss of citizenship;
but this is not the diminution but the annihilation of _caput_, and
could not therefore in the earliest stage of Roman law (when there was
no status recognised but that of citizenship) be called a _capitis
deminutio_. The term must have been wholly confined to a loss of private
rights, i.e. to the loss of the rights conveyed by the control of a
_familia_.[115] Thus the _adrogatus_ suffers a lessening of _caput_ by
passing into the power of another. But a change from a higher to a lower
status (even when the higher did not imply active rights) may at an early
period have been regarded as an infringement of _caput_. We know, for
instance, that the _datio in mancipium_ of a son of a family was thought
(at what period is uncertain) to involve it, because the child passes
from a better to a worse station, although in his former condition he
had no active rights of his own. It is stranger still that, certainly
at an early period, the fact of a woman’s passing into her husband’s
power (_conventio in manum_) was held to have this consequence. It is
one that is scarcely intelligible in the case of a _filia familias_ who
passes from one _potestas_ to another; but in the case of a woman only
under the burden, lighter and ever tending to be more relaxed, of the
_tutela_ of her relatives, it is a natural though not strictly legal
conception.[116] Some other applications of the system are still more
artificial, and are perhaps creations of late Roman jurists who came to
consider that the essence of a loss of _caput_ was a change of status
(_status commutatio_).[117] Thus adoption, which is the change from
one _potestas_ to another, and even manumission, which is the freedom
from power, were supposed to involve it. These applications contain some
historical truth only in so far as both these changes involve a temporary
mancipation.
Public-domain text, read in full here on John Shaqi.
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