diminution.’ Consistently with this definition Paulus affirms that the children of adrogatus suffer capitis minutio minima: Dig. 4, 5, 3 pr. ‘The children who follow an adrogated parent suffer capital diminution, as they are dependent and have changed family’: here, then, if Paulus is right, we have capitis minutio without any degradation, any loss of rank; for the children of adrogatus have the same status of filiifamilias after their father’s adrogation as they had before, although in a different family. The proposition, however, that the children of adrogatus suffer capitis minutio is not confirmed by any other jurist, and Savigny supposes that the doctrine was peculiar to Paulus, and was in fact inaccurate. Another objection to the theory of Savigny, though not so serious as the opposing authority of Paulus, is presented by the operation of in manum conventio.
When an independent woman made a coemption she undoubtedly declined in status, as before coemption she was sui juris, and after coemption she is filiafamilias. But a filiafamilias who made a coemption apparently suffered no degradation: the definitive result of the coemption leaves her, as before, filiafamilias, and that, apparently, without having passed through any lower stage; for Gaius expressly says that the lex mancipii, or formula of mancipation in coemption, was not calculated to reduce the woman to a servile condition, § 123. Gaius tells us, however, that coemption operates a capitis minutio, § 162, without limiting the effect to the case of a woman sui juris. The operation of coemption to produce capitis minutio is also mentioned by Ulpian, and again without any express limitation to the case of an independent woman: 11, 13. ‘There is least capital diminution when both citizenship and freedom are unimpaired, and only position in household life is changed, as occurs in adoption and subjection to hand.’ If filiafamilias underwent capitis minutio when she made a coemption, her case disproves our theory that all capitis minutio requires degradation: but Savigny assumes that, though in these passages there is no express limitation to the case of independent women, yet this limitation must be understood; and there is nothing outrageous in this supposition.
While, however, these objections to the hypothesis of Savigny are doubtless serious, on the other hand they are compensated by legal facts which seem absolutely irreconcilable with the adverse hypothesis, the cases of Flamen Dialis and Virgo Vestalis. Gellius, 1, 12. ‘As soon as a vestal virgin is selected and conducted to the shrine of Vesta and delivered to the pontifices, she instantaneously, without emancipation and without capital diminution, is freed from parental power and acquires testamentary capacity. . . . . Moreover, in the commentary of Labeo on the Twelve Tables it is stated that a vestal virgin is neither heiress-at-law to any one who dies intestate nor, if she herself die intestate, leaves any heir-at-law, and that in this event her property lapses to the state.’ For Flamen Dialis, see 3 § 114. If mere transit from a family and ceasing to belong to a given group of agnates constituted capitis minutio, and was its definition, then the vestal virgin must inevitably have suffered capitis minutio; the fact that she did not, in spite of leaving her family and snapping the agnatic tie, is at once conceivable, on the supposition that there is no capitis minutio without degradation.
Unless capitis minutio minima involved a downward step on the stair of status, it has no analogy to the other forms of capitis minutio, and it is not obvious why it should have the same generic appellation, or why it should be handled in the same department of the code. The rupture of the ties of agnation, extinguishing rights of intestate succession, might be a loss, but it was not a loss from inferiority of privilege; it was a loss of an equal among equals; it was more like the loss of dos which a husband might incur by divorce of his wife, or an heir by neglecting to accept a succession within the appointed period (cretio), 2 § 164; neither of which persons were said to undergo capitis minutio, because neither of them suffered a reduction of the universitas juris called status.
On the whole, then, Savigny seems justified in considering the definition given by Paulus and his statement respecting the children of adrogatus as inexact. Paulus himself, in speaking of emancipation, implies the true conditions of capitis minutio: Dig. 4, 5, 3 Emancipato filio et ceteris personis capitis minutio manifesto accidit, cum emancipari nemo possit nisi in imaginariam servilem causam deductus; aliter atque cum servus manumittitur, quia servile caput nullum jus habet ideoque nec minui potest.
Although rupture of the ties, and forfeiture of the rights, or release from the duties, of agnation, were not the essence of capitis minutio minima, yet they were among its principal consequences. The capite minutus lost his claim as suus heres at civil law, that is, his right to succeed to an intestate ascendent, or to be instituted heir in his will or formally disinherited. These effects of capitis minutio were, however, counteracted to some extent by jus praetorium or the legislation of the praetor (bonorum possessio unde liberi: and contra tabulas). He also lost his right as legitimus heres at civil law, that is, his right to succeed as nearest agnate to an intestate collateral; and here the praetor only so far interposed to assist the capite minutus, as, in default of all persons entitled as nearest agnates, to call him to the succession in the inferior order of cognates (bonorum possessio unde cognati). The collateral civil heir was called legitimus heres (statutory heir) because his title was founded on the statutes of the Twelve Tables, which, in default of self-successors, called the nearest collateral agnates to the succession. Subsequent statutes created certain quasi agnates or persons entitled to succeed in the same order as if they were agnates, who hence were also called legitimi heredes; e. g. children entitled to succeed to an intestate mother under the Sc. Orphitianum, and mothers entitled to succeed to intestate children under the Sc. Tertullianum. The effect of capitis minutio in extinguishing title to succeed was confined to legitimus heres created by the Twelve Tables, and did not extend to the legitimus heres created by these subsequent statutes.
Besides the effects of capitis minutio which followed logically from its consisting in a degradation or fall in status, and from its involving elimination from a given family or a certain circle of agnates, it had certain other abnormal or arbitrary consequences—consequences, that is, which may have once been explicable on known maxims of the civil law, but which are now inexplicable, whose rationale had perhaps been lost even in the classical period, and is certainly now past conjecture. Such is the rule, that capitis minutio minima of an independent person extinguished the debts of capite minutus. It is true that the injustice operated by this rule of civil law in the case of adrogatio was counteracted by the interposition of the praetor, but, as at civil law filiusfamilias, though incapable of rights, was capable of obligations, it is not obvious why even at civil law a man’s debts should have been cancelled by his degradation from the status of paterfamilias to that of filiusfamilias. 3 § 84, comm.; 4 § 38.
DE LEGITIMA PATRONORVM TVTELA.
§ 165. The same statute of the Twelve Tables assigns the guardianship of freedwomen and of freedmen below the age of puberty to the patron and the patron’s children, and this guardianship, like that of agnates, is called statutory guardianship, not that it is anywhere expressly enacted in the Twelve Tables, but because the interpretation has procured for it as much reception as it would have obtained from express enactment; for the fact that the statute gave the succession of a freedman or freedwoman, when they die intestate, to the patron and patron’s children, was deemed by the lawyers of the republic (veteres) a proof that it intended to give them the guardianship also, because the Tables, when they call agnates to succeed to the inheritance, likewise confer on them the guardianship.
§ 166. The analogy of the patron guardian led in its turn to the establishment of other guardianships also called statutory. Thus when a person mancipates to another, on condition of remancipation to himself, either a son or grandson through a son, who are below the age of puberty, or a daughter or granddaughter through a son of whatever age they may be, he becomes their statutory guardian when he manumits them after remancipation.
§ 166 a. CONCERNING FIDUCIARY GUARDIANSHIP. But there are other kinds of guardianship, called fiduciary, which arise when a free person has been mancipated by his parent or coemptionator to an alienee and manumitted by the latter.
§ 167. The
