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p239 Caput

Article by George Long, M.A., Fellow of Trinity College
on pp239‑240 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

CAPUT, the head. The term "head" is often used by the Roman writers as equivalent to "person, or "human being" (Caes. Bell. Gall. IV.15). By an easy transition, it was used to signify "life": thus, capite damnari, plecti, &c. are equivalent to capital punishment.

Caput is also used to express a man's civil condition; and the persons who were registered in the tables of the censor are spoken of as capita, sometimes with the addition of the word civium, and sometimes not (Liv.III.24, X.47). Thus to be registered in the census was the same thing as caput habere: and a slave and a filius familias, in this sense of the word, were said to have no caput. The lowest century of Servius Tullius comprised the proletarii and the capite censi, of whom the latter, having little or no property, were barely rated as so many head of citizens (Gell. XVI.10; Cic. De Rep. II.22).

He who changed his condition for an inferior one was said to be capite minutus, deminutus, or capitis minor (Hor. Carm. III.5.42). The phrase se capite deminuere was also applicable in case of a voluntary change of condition (Cic. Top. c4). The definition of Festus, (s.v. deminutus) is, "Deminutus capite appellatur qui civitate mutatus est; et ex alia familia in aliam adoptatus, et qui liber alteri mancipio datus est: et qui in hostium potestatem venit: et cui aqua et igni interdictum est." There has been some discussion whether we should use capitis deminutio or diminutio, but it is indifferent which we write.

There were three divisions of Capitis deminutioMaxima, Media, sometimes called Minor, and Minima. The maxima capitis deminutio consisted in the loss of libertas (freedom), in the change of the condition of a free man (whether ingenuus or libertinus) into that of a slave. The media consisted in the change of the condition of a civis into that of a peregrinus, as, for instance, in the case of deportatio under the empire; or the change of the condition of a civis into that of a Latinus. The minima consisted in the change of the condition of a pater familias into that of a filius familias, as by adrogation, and, in the later law, by legitimation; and in a wife in manu, or a filius familias coming into mancipii causa; consequently, when a filius familias was emancipated or adopted, there was a capitis deminutio, for both these ceremonies were inseparably connected with the mancipii causa (cum emancipari nemo possit nisi in imaginariam servilem causam deductus. Gaius, I.134, 162). This explains how a filius familias, who by emancipation becomes sui juris, and thus improves his social condition, is still said to have undergone a capitis deminutio; which expression, as observed, applies to the form by which the emancipation is effected.

Capitis minutio, which is the same as deminutio, is defined by Gaius (Dig. 4 tit. 5 s1) to be status permutatio; but this definition is not sufficiently exact. That capitis deminutio which had the most consequence was the maxima, of which the media or minor was a milder form. The minima, as already explained, was of a technical character. The maxima capitis deminutio was sustained by those who refused to be registered at the census, or neglected the registration, and were thence called incensi. The incensus was liable to be sold, and so to lose his liberty; but this being a matter which concerned citizenship and freedom, such penalty could not be inflicted directly, and the object was only effected by the fiction of the citizen having himself abjured his freedom. Those who refused to perform military service might also be sold (Cic. Pro Caecina, 34; Ulp. Frag. XI.11). A Roman citizen who was taken prisoner by the enemy, lost his civil rights, together with his liberty, but he might recover them on returning to his country [Postliminium.] Persons condemned to ignominious punishments, as to the mines, sustained the maxima capitis deminutio. A free woman who cohabited with a slave, after notice given to her by the owner of the slave, became an ancilla, by a senatus-consultum, passed in the time of Claudius (Ulp. Frag. XI.11; compare Tac. Ann. XII.53, and Suet. Vesp. 11).

p240judicium capitale, or poena capitalis, was one which affected a citizen's caput. The subject of the Capitis deminutio is fully discussed by Becker, Handbuch der Römischen Alterthumer, vol. II, p100; and by Savigny, System, &c. vol. II p68, &c.


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