The Law of Persons was concerned with the different types of status and legal rights enjoyed by persons. "The main distinction in the law of Persons", says Gaius, "is that all men are either free of slaves." Rights depended on one's status; hence the rights enjoyed by a slave, or a son in power, for example, differed substantially from those enjoyed by a paterfamilias.
- Classification of persons
+ Classification used in the Institutes
Persons were classified according to the following categories:
. Free or Unfree;
. Sui Iuris or Alieni Iuris;
. Under Guardianship or Not Under Guardianship.
+ The First Division of Persons
Persons might be free or unfree. Those who were not free were either in slavery or in quasi-servile conditions e. g. mancipium (civil bondage).
+ The Second Division of Persons
Persons might be sui iuris (of independent status) or alieni iuris (in the power of others). Thus, sons in the power of their fathers were said to be alieni iuris. Slaves in the power of their masters were also alieni iuris. A paterfamilias was sui iuris.
+ The Third Division of Persons
Persons who were sui iuris might have a guardian, or not. Two kinds of guardianship existed:
. Tutela.
. Cura.
- Capitis deminutio
+ Its meaning
When a person underwent a change in his status, he was said to have suffered capitis deminutio (deterioration of status). The status of a freeman reflected his rights, considered under three heads (tria capita):
. Status Familiae: Family rights.
. Status Libertatis: Freedom.
. Status Civitatis: Citizenship.
+ The three types of Capitis Deminutio
. Capitis Deminutio Minima (the least diminution)
The family rights of a person were changed, but he retained freedom and citizenship, as, for example, where a person alieni iuris becomes sui iuris by emancipation (see example below), or where one who is sui iuris is adopted. In these cases status could not be said to have deteriorated; rather, one had changed families.
Example: Marcus, son of Brutus, and in his potestas, is emancipated by Brutus. As a result, Marcus is said to have undergone capitis deminutio.
. Capitis Deminutio Minor vel Media (the less diminution)
This change involved a loss of citizenship, but freedom was retained, e.g. by suffering banishment or deportation.
. Capitis Deminutio Maxima (the greater diminution)
In this case all rights were lost as, for example, when a freeman was made a slave.
+ The effects of Capitis Deminutio
. Capitis Deminutio Minima
A person lost those rights he had enjoyed through membership of the family to which he had belonged.
Example: Flavius, son of Cinna, leaves his natural family and enters the family of Marullus. In so doing he loses the right, which he enjoyed as a member of Cinna's family, of succeeding his father on intestacy.
. Capitis Deminutio Minor
The rights of a citizen in civil and general political affairs were lost.
Example: Cominius suffers capitis deminutio minor. As a result he loses the right to vote (ius suffragii), the right to acquire property (commercium), the right to hold an office (ius honorum) and the right to become a partner in a legal marriage (conobium). If Cominius were married according to the civil law, the marriage would be considered as having ended (although the union might be maintained as matrimonium iure gentium –marriage under the iure gentium).
. Capitis Deminutio Maxima
This took from a person all those rights enjoyed by a free Roman citizen.
Note:
(i) Where a man changes only his social standing, as, for example, by ceasing to hold a public office, he does not suffer capitis deminutio as a result.
(ii) The manumission of a slave does not involve capitis deminutio, since a slave does not possess caput (i.e. political and social rights).
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Source:
Roman Law, L. B. Curzon, pages 29 - 31.
