(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, 3). Hence perhaps its use
to express a “chapter” of a law (Dig.
, 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.
g. as a subject of the poll-tax (Dig. 50
: cf. Livy, 3.24
): and in this sense even slaves may be included, as in the
phrase noxalis actio caput sequitur
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
citizens (Gell. [p. 1.360]
16.10; Cic. de Rep. 2.22
). (3) A human being regarded as
capable of legal rights (=persona,
, .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
themselves habitually regarded them as referable to three momenta
or capacities--freedom, citizenship, and membership
of a Roman familia.
The free man, as such,
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
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,
said to suffer capitis
; Auson. Idyll.
Cic. Top. 2.4
). It is hardly
necessary to add that loss of civitas
loss of familia,
and loss of libertas
Capitis deminutio maxima
occurred when a free
man, whether ingenuus
became a slave (Gaius, 1.160; Ulp.
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
into foreign slavery, under the execution procedure known
as Manus injectio
); and a libertus
gross ingratitude towards his patron might on the latter's application be
sold as a slave by the praetor (Dig. 25
), and later the patron might resume his rights over him as
(Cod. 6, 7, 2: cf. Sueton.
25; Tac. Ann.
). (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.
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.
; Suet. Vesp.
11). (5) Condemnation on a
criminal charge to hard labour in the mines made the convict a servus poenae
(Paul. Sent. rec.
Capitis deminutio media
occurred (1) when a civis
accepted citizenship in another state (e. g. a civitas peregrina
), no civis
of which could
also be a full citizen of Rome; and also when a libertus
returned to his own country with the intention of
resuming citizenship there (Cic. pro Balbo,
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
), but under the empire it took the form of
deportatio in insulam
or banishment (Cic. pro Caec. 33
, 34; D. C. 55.20
Capitis deminutio minima
is defined by Gaius
(1.162) as a status commutatio:
Paulus (Dig. 4
) 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
or given in adoption, or when
a person adrogated or legitimated had children in his own potestas;
(3) when a person alieni
became sui iuris
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,
(according to him) the only instances of it are adrogation and subjection to
But this is in conflict with a great weight of textual
authority, and is strongly combated by many of Savigny's most eminent
Legal proceedings. which affected either libertas
are said to be
“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”
4.18, 2). Elsewhere the term is rather confined to
the punishment of death: capita puniri, plecti,
(Cod. 48, 19, 11, 4, &c.).