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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]

hide References (10 total)
  • Cross-references from this page (10):
    • Cicero, For Aulus Caecina, 33
    • Cicero, For Aulus Caecina, 34
    • Livy, The History of Rome, Book 3, 24
    • Tacitus, Annales, 13.26
    • Tacitus, Annales, 12.23
    • Tacitus, Annales, 13.27
    • Livy, The History of Rome, Book 25, 4
    • Livy, The History of Rome, Book 10, 47
    • Cicero, De Republica, 2.22
    • Gellius, Noctes Atticae, 20.1
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