CAPUT
CAPUT (from the sense of “head,” literal or
metaphorical, including under the latter the meaning of “source,”
“beginning” ) comes to signify: (1) A single person or thing as
distinct from an aggregate (
Inst. 3.16, 6;
Dig. 6,
1,1, 3). Hence perhaps its use
to express a “chapter” of a law (
Dig.
9,
2,
2, pr.) and a
territorial unit for the purpose of land taxation under the later empire
(Cod. 10, 2). (2) A human being (Caes.
Bell. Gall. 4.15): e.
g. as a subject of the poll-tax (
Dig. 50,
4,
18,
8: cf. Livy,
3.24,
10.47): and in this sense even slaves may be included, as in the
phrase
noxalis actio caput sequitur
(
Inst. 4.8, 5). But there is a tendency to restrict the
term to citizens of some substance : thus the lowest century of Servius
Tullius comprised the
proletarii and
capite censi; of whom the latter, having little or
no property, were barely rated as so many
head of
citizens (Gell.
[p. 1.360]16.10;
Cic. de Rep. 2.22). (3) A human being regarded as
capable of legal rights (=
persona,
Dig. 37, .11, 11, 2). (4) That capacity or those
legal rights themselves.
The rights enjoyed in the aggregate by any free person under the protection
of Roman law are denoted generally by the terms
caput or
status. The Romans
themselves habitually regarded them as referable to three
momenta or capacities--freedom, citizenship, and membership
of a Roman
familia. The free man, as such,
whether
civis or
peregrinus, possessed some legal rights: the
civis possessed more, even in the domain of private law; but
there were many, especially rights of guardianship and inheritance, which he
enjoyed only as belonging to a specific
familia. Properly speaking, the slave, not being free,
nullum habet caput: he has no
persona (
Nov. Theod. 17.2): he is
ἀπρόσωπος (Theoph. 3.17, pr.). But a free man
always had a
caput, and this he might lose: so
that, according as the
caput which he lost was
that of freedom, citizenship or
familia, he was
said to suffer
capitis
minutio or
deminutio,
maxima, media or
minor, or
minima (
Hor.
Carm. 3.5.42; Auson.
Idyll. 11.65; Boethius
ad
Cic. Top. 2.4). It is hardly
necessary to add that loss of
civitas involved
loss of
familia, and loss of
libertas involved both.
Capitis deminutio maxima occurred when a free
man, whether
ingenuus or
libertinus, became a slave (Gaius, 1.160; Ulp.
Reg. 11.11), as he might (1) by being taken captive by an
enemy of the Roman state, though he might recover his civil rights by
returning to his country. [
POSTLIMINIUM] (2) By being sold as a slave by a person thereunto
entitled: especially by the state for evading public burdens (e. g. by not
entering his name in the census), or for attempting to escape military
service (
Cic. pro Caec. 34,
§ 99; Ulp.
Reg. 11.11). Similarly the creditors of
an insolvent debtor might sell him
trans
Tiberim, into foreign slavery, under the execution procedure known
as
Manus injectio (
Gel.
20.1); and a
libertus convicted of
gross ingratitude towards his patron might on the latter's application be
sold as a slave by the praetor (
Dig. 25,
3,
6,
1), and later the patron might resume his rights over him as
dominus (Cod. 6, 7, 2: cf. Sueton.
Claud. 25;
Tac. Ann.
13.26,
27). (3) If a free man over
twenty years of age collusively allowed himself to be sold as a slave in
order, after proving his freedom, to participate in the purchase-money, he
forfeited his freedom (
Inst. 1.3, 4;
Dig.
40,
12,
23,
pr.). (4) A free woman who cohabited with a slave, after notice given to her
by the latter's owner, became a slave herself by a senatus consult of
Claudius (Ulp.
Reg. 11.11: cf.
Tac.
Ann. 12.23; Suet.
Vesp. 11). (5) Condemnation on a
criminal charge to hard labour in the mines made the convict a
servus poenae (Paul.
Sent. rec. 3.6,
29).
Capitis deminutio media or
minor occurred (1) when a
civis
Romanus accepted citizenship in another state (e. g. a
civitas peregrina or
colonia
Latina), no
civis of which could
also be a full citizen of Rome; and also when a
libertus
civis returned to his own country with the intention of
resuming citizenship there (Cic.
pro Balbo, 11,
12;
pro Caec. 33, 34;
de Orat.
1.40;--Boeth.
ad Top. 2.4). (2) As a result of condemnation
to loss of citizenship for crime. Originally this was effected by
aquae et ignis interdictio (Livy,
25.4), but under the empire it took the form of
deportatio in insulam or banishment (
Cic. pro Caec. 33, 34;
D. C. 55.20,
56.27;
Gaius, 1.161).
Capitis deminutio minima is defined by Gaius
(1.162) as a
status commutatio: according to
Paulus (
Dig. 4,
5,
11) it occurs “cum familia tantum
mutatur;” or, as Ulpian says (
Reg. 11, 13), when
“civitate et libertate salva status duntaxat hominis
mutatur.” Thus it signifies the leaving by the
capite deminutus of his agnatic family, and it took place (1)
when a person
sui iuris became
alieni iuris by adrogation, legitimation, or by
subjection to the
manus of a husband; (2) when
a person already
alieni iuris entered a new
family--as when a
filius familias was sold
in mancipium or given in adoption, or when
a person adrogated or legitimated had children in his own
potestas; (3) when a person
alieni
iuris became
sui iuris by
emancipation.
A different view as to
capitis deminutio minima
is maintained by Savigny (
System, vol. ii.), who holds that
its essence lies in a civil degradation analogous to that which ensued on
the two higher kinds of
deminutio, so that
(according to him) the only instances of it are adrogation and subjection to
manus and
mancipium. But this is in conflict with a great weight of textual
authority, and is strongly combated by many of Savigny's most eminent
successors.
Legal proceedings. which affected either
libertas or
civitas are said to be
“capital:”
“Capitalia (judicia) dicimus, quae ultimo supplicio adficiunt, vel
aquae et ignis interdictione, vel deportatione, vel metallo: cetera, si
qua infamiam irrogant cum damno pecuniario .... non capitalia”
(
Inst. 4.18, 2). Elsewhere the term is rather confined to
the punishment of death:
capita puniri, plecti,
luere (Cod. 48, 19, 11, 4, &c.).
[
J.B.M]
