The truth is, that the effects of a collision of Civil and Natural law fall under two very different classes, which it is important to distinguish.
1. If the command of the civil lawgiver, under the sway of motives financial, political, ethical, or religious, is highly imperious and absolutely compulsive, all natural titles with which it may come in conflict are absolutely void and inoperative: e. g. the Sc. Velleianum, prohibiting suretyship of women, allowed no naturalis obligatio to be produced by any such suretyship: and so with the laws prohibiting gambling and usury.
2. If the command of the civil law is less peremptory and absolute, it may deprive any conflicting natural title of plenary force, and yet leave to it a naturalis obligatio capable of acquiring efficacy by some machinery of positive law; e. g. the Sc. Macedonianum, prohibiting money loans to a filiusfamilias without the sanction of his father, made them irrecoverable by action, and yet the courts recognized in the borrowing filiusfamilias a naturalis obligatio, which was capable of novation, Dig. 46, 2, 19, and a bar to recovery back (condictio indebiti) in case of actual repayment, Dig. 14, 6, 10.
When Justinian consolidated the law of intestate succession and made the right of succession depend on cognation instead of agnation, he made a corresponding change in the obligation of guardianship, which henceforth devolved on cognates instead of agnates, women as formerly, with the exception of mothers and grandmothers, being excluded from the office, Nov. 118, 5.
DE CAPITIS MINVTIONE.
§ 159. Capitis deminutio is a change of a former status which occurs in three ways, i. e. it is either greatest, minor or mediate, or least.
§ 160. The greatest capitis deminutio is the simultaneous loss of citizenship and freedom, which happens to those who having evaded inscription on the censorial register are sold into slavery according to the regulations of the census, also under the — law when persons in violation of it make Rome their place of residence, and also under the Sc. Claudianum in case of persistent intercourse on the part of a free woman with another person’s slave in spite of the dissent and denunciation of the owner.
§ 161. Minor or intermediate loss of status is loss of citizenship unaccompanied by loss of liberty, and is incident to interdiction of fire and water.
§ 162. There is the least capitis deminutio retaining citizenship and freedom when a man’s position in the family only is changed, which occurs in adoption, coemption, and in the case of those given in mancipium to be afterwards manumitted, so that after each successive mancipation and manumission a capitis deminutio takes place.
§ 163. Not only by the two greater losses of status are rights of agnation extinguished, but also by the least: accordingly, if one of two children is emancipated, the elder cannot on the father’s decease be guardian to the younger by right of agnation.
§ 164. When agnates are entitled to be guardians, it is not all who are so entitled, but only those of the nearest degree.
§ 160. Ulpian also refers to the penalty incurred by incensi (11, 11 cum incensus aliquis venierit; cf. Cic. Pro Caec. 34, 99). The lex, the name of which is now illegible, may possibly be the lex Aelia Sentia, which by one of its provisions recalled into slavery dediticii, who resided in Rome or within a certain distance from it (§ 27), though there is the difficulty that it would be inaccurate to speak of such freedmen suffering loss of citizenship as well as liberty. Other grounds of reducing to slavery existed at various times, as surrender by the pater patratus to a foreign state for an offence against international law, Livy, 5, 36, or evasion of military service (populus quum eum vendidit qui miles factus non est, Cic. Pro Caec. 34, 11; Ulp. 11, 11), or capture by the enemy, § 129, or condemnation for a capital crime, which made the convict a slave of punishment (servus poenae, Inst. 1, 16, 1), i. e. reduced him to penal servitude, or condemnation of a freedman for ingratitude towards his patron (libertus ingratus circa patronum condemnatus, ibid.) whereupon he forfeited his freedom, or collusion of a freeman in consenting to be sold as a slave on condition of sharing the purchase-money (cum liber homo, major viginti annis, ad pretium participandum sese venundari passus est, Inst. 1, 3, 4). After the price had been paid, the vendor disappeared, the supposed slave recovered his liberty by a liberalis causa, and the purchaser was left without his slave and without his money. The praetor, to check this fraud, allowed the purchaser to defend himself by exceptio doli, and senatusconsulta subsequently enacted, that if the person sold was twenty years old at the time of the sale or partition of the price, he should really become the slave of the purchaser, Dig. 40, 12, 7 pr. 1.
The libertus ingratus would exemplify a fall from the condition of libertinus to that of servus; any of the other instances might be a case of a fall from ingenuus to servus; the fall from ingenuus to libertinus would also be an analogous kind of degradation. Thus by the Sc. Claudianum a freewoman (ingenua) who had commerce with a slave with the consent of his proprietor procreated slaves without forfeiting her own freedom, § 84; she lost status, however, for she became the freedwoman of the proprietor, Paulus, 4, 10, 2; Tac. Ann. 12, 53.
§ 161. Under the category of Civitas, as there are three classes, civis, latinus, peregrinus, so there are three possible degradations, the fall from civis to Latinus, instanced in the emigrant to a Latin colony, § 131; the fall from civis to peregrinus, instanced in the interdiction or deportation of a civis; and the fall from Latinus to peregrinus, instanced when the same events happened to Latinus. A lapse from liber to servus was a dissolution of marriage, for servus was incapable of matrimony: a lapse from civis to Latinus or peregrinus was a dissolution of civil wedlock (connubium), for this could only subsist between cives; but if both parties consented, they might continue in gentile wedlock (matrimonium), Cod. 5, 17, 1. The confiscation of property or universal succession of the fiscus, which accompanied greatest and minor loss of status, was not an incident of the latter kind of capitis minutio (e.g. it did not happen when civis became Latinus by emigration; and an alien, as a citizen became by deportation, was capable of holding property), but was a special provision of the criminal code. (For an account of the different Roman forms of banishment see Mommsen, Rom. Strafr. 5, pt. 7.)
The political elements of civitas, suffragium and honores, were forfeited by infamy (infamia) or loss of civic honour (existimatio); and hence arises the question whether infamia is to be regarded as a capitis minutio (see, on this subject, Greenidge, Infamia).
Austin, in laying the bases of jurisprudence, has referred to the law of honour to illustrate the difference of positive law from all law not positive; but in Rome the law of honour, as the law of religion in most modern states, was partially taken up into positive legislation. The public sentiments of esteem and disesteem, that is to say, were armed with political sanctions, and thus certain proceedings were discouraged which were not otherwise prohibited by positive law, and the due application of these sanctions was the function of a special organ appointed by the legislator. This organ was the censor, who had both a discretionary power of branding a man with ignominy by an annotation against his name in the civic register (notatio, subscriptio censoria), and, as revisor of the lists of the senate, the knights, and the tribes, enforced the disabilities of infamy by removing the infamous person from any of those bodies. As the Comitia Centuriata, as well as the Comitia Tributa, had in later times been connected with the division into tribes, the tribeless man (aerarius) forfeited his vote and became incapable of military service, Livy, 7, 2. These graver consequences of infamy were not in the discretion of the censor, but governed by strict rules of consuetudinary law (jus moribus introductum). The law of infamia, as established by the censor, came to be also recognized by the praetor in his edict (cf. Dig. 3, 1, 1, 8