Читать книгу Roman Public Life - A. H. J. Greenidge - Страница 28

A legal view of the Roman family would be incomplete without consideration of the rights or infringement of rights dependent on it.

The full legal status of a Roman citizen was designated by the word caput. It denoted all the rights that he possessed, but primarily it is a conception of public law, for the possession of private was originally regarded as an annexe to the possession of public rights. Thus caput is retained even though the exercise of private rights is hindered for a time, as it is in the case of a son under power; the filius familias possesses a caput, although it is modified by his subjection to his father. This theory of the dependence of private on public rights, common to Greek and Roman law, probably accounts for the perpetual tutelage of women. The materfamilias holds an honourable position in the household; she is its queen, as her husband is its king, but yet she is subjected by marriage to the legal position of her own daughter, and, on her husband’s death, is in the custody of her sons; for a primitive society cannot be brought to believe that a being who cannot fight, and may not fill offices of state or exercise a vote, is capable of looking after its own interests. Appearance before a court of law at Rome, whether for the purpose of defending one’s own or another’s rights, was regarded as a public act; and Roman sentiment so strongly disapproved a woman’s taking part in public life that, when one was found bold enough to plead her cause in the Forum, the Senate in alarm made an official inquiry of the gods what the portent signified.[112] It is possible that in the earliest stage of Roman law women were not regarded as having any rights to defend; later they are regarded as having rights, and therefore a caput, but as incapable of defending them. When, in the latest stage, the disabilities of sex disappear partly through enactment,[113] but chiefly through a series of legal fictions, the capacity of women to defend their own interests first emerges.[114]

The limitation by which a series of civil rights is destroyed is spoken of as a “lessening of caput” (capitis deminutio). It is in every case an infringement of rights already possessed by the individual. Now the loss of public rights could only follow on a loss of citizenship; but this is not the diminution but the annihilation of caput, and could not therefore in the earliest stage of Roman law (when there was no status recognised but that of citizenship) be called a capitis deminutio. The term must have been wholly confined to a loss of private rights, i.e. to the loss of the rights conveyed by the control of a familia.[115] Thus the adrogatus suffers a lessening of caput by passing into the power of another. But a change from a higher to a lower status (even when the higher did not imply active rights) may at an early period have been regarded as an infringement of caput. We know, for instance, that the datio in mancipium of a son of a family was thought (at what period is uncertain) to involve it, because the child passes from a better to a worse station, although in his former condition he had no active rights of his own. It is stranger still that, certainly at an early period, the fact of a woman’s passing into her husband’s power (conventio in manum) was held to have this consequence. It is one that is scarcely intelligible in the case of a filia familias who passes from one potestas to another; but in the case of a woman only under the burden, lighter and ever tending to be more relaxed, of the tutela of her relatives, it is a natural though not strictly legal conception.[116] Some other applications of the system are still more artificial, and are perhaps creations of late Roman jurists who came to consider that the essence of a loss of caput was a change of status (status commutatio).[117] Thus adoption, which is the change from one potestas to another, and even manumission, which is the freedom from power, were supposed to involve it. These applications contain some historical truth only in so far as both these changes involve a temporary mancipation.

The original capitis deminutio is thus a purely private law conception and implies the distinction between persons sui juris and alieni juris. To the first category belong those who are free from the power of another, to the latter those who are under the potestas, manus, and mancipium; amongst citizens, therefore, the son, the wife, and any one mancipated to another. The person alieni juris is not altogether devoid of private rights, but they are singularly incomplete in their effects. Thus the son under power has the right of marriage (conubium), but the children of the marriage are not in his power but in his father’s; he has (if not in the earliest period, yet throughout the greater part of Roman history) the right of taking part in the legal business of trade (commercium), yet all that he acquires by this business belongs to his father. In his case, however, the condition is transitory, while in the case of the slave and the mancipatus (apart from the possibility of emancipation) it is permanent.

Conversely, the fact of being sui juris does not always imply freedom of action; this might be limited through consideration of age or sex. Minors and women may be free from potestas, but the former were subject to a temporary, the latter originally to a perpetual tutela.