followed condemnation for a criminal offence was of this type of rejection of citizenship, for the exile was always assumed to be a voluntary act. Enforced abstention from the Roman civitas, which necessitated a continuance in exile, was produced by the decree of outlawry (aquae et ignis interdictio)[1] often passed by the people against an individual who was in voluntary banishment for a crime.
(iii.) Capitis deminutio minima—originally a loss of family rights—was improperly construed by the later jurists as a change of family status.[2] Its applications have been already considered.[3]
There were means of recovering the status lost in either of these three modes. The loss of familia in its original sense[4] might be recovered by emancipation; the loss of civitas, if enforced by the state, by a special act repealing this disability (the restitutio in integrum of the criminal law). Libertas could be regained by the exercise of a right known as the jus postliminii. The return, unintentional or premeditated, of the captive within the limits of his own country destroyed the state of bondage, and restored the ingenuitas and the rights of the former prisoner. Although described as a legal fiction[5] it was a direct consequence of the simple principle that a Roman could not be enslaved on Roman soil.
The Roman family had been subjected to many modifications since we last considered it.[6] The patria potestas, indeed, existed in all its old rigour, and the power of life and death over the children still found occasional expression; but the unity of the family had been largely dissolved by the laxity of the marriage tie. A modification of the usus marriage had come into vogue, which recognised the consent of the parties, without the prescriptive tenure by which the potestas was asserted, as the only bond—one, therefore, dissoluble at any moment by rejection on the part of the husband or by mutual consent. The wife remained a member of her father's familia, and if she was sui juris, retained her own property; for the tutelage of women
- ↑ p. 55.
- ↑ Ulp. Reg. xi. 13 "per quam, et civitate et libertate salva, status dumtaxat hominis mutatur." Cf. Gaius i. 162.
- ↑ p. 32.
- ↑ i.e. by adrogatio, see p. 32.
- ↑ Justin. Inst. i. 12, 5 "postliminium fingit eum qui captus est semper in civitate fuisse"; Gaius i. 129 "hi qui ab hostibus capti sunt, si reversi fuerint, omnia pristina jura recipiunt."
- ↑ p. 18.
