II. Citizenship.—This was of importance for the purposes of private law, because certain parts of private law applied only to citizens (ius civile). The general rule was that, if the status of the parents differed, the child followed that of the father, if the union was one recognized as marriage by Roman law ; otherwise that of its mother, but a lex Minicia of republican times enacted that in cases of unrecognized unions between citizens and for eigners the child should always follow the inferior parent. The great extension of the citizenship by Caracalla in A.D. 212 reduced the importance of this part of the law.
III. Family.—(a) Patria potestas. The chief characteristic of the Roman family is the famous patria potestas which the father exercised over his children and over his more remote descendants in the male line, whatever their age might be, as well as over those brought into the family by adoption—a very common practice at Rome. This meant originally not only that he had control over the persons of his children, amounting even to a right to inflict capital punishment, but that he alone had any rights in private laws. Thus any acquisitions made by a child under power became the property of the father. The father might indeed allow a child (as he might a slave) certain property (peculium) to treat as his own, but in the eye of the law it continued to belong to the father. In classical times there were already modifications of the sys tem ; the father's power of life and death had shrunk to that of slight chastisement, and the son could bind his father by contract with a third party within the same strict limits as applied to slaves and their masters. Sons too could keep as their own what they earned as soldiers (peculium castrense) and even make wills of it. In Justinian's day the position as regards property had changed considerably; what the father gave to the son still remained in law the father's property, but the rules of peculium castrense had been extended to many sorts of profes sional earnings (pec. quasi castrense) and in all other sorts of acquisitions (e.g., property inherited from the mother) the father's rights were reduced to a life-interest (usufruct). At all times Patria potestas ceased normally only with the death of the father, but the father might voluntarily free the child by emancipation, and a daughter ceased to be under her father's potestas if she was married in such a way as to come under the menus of her husband.
(b) Marriage.—There were two types of marriage known to the law, one with menus and one without, but the former was rare already in the late republic and had disappeared long before Jus tinian's day. Manus was the autocratic power of the husband
over the wife, corresponding to patria potestas over the sons, and it might result in any of three ways : ( r) by confarreatio, a religious ceremony confined to patricians.
(2) by coemptio, a type of mancipation (see below) which was originally no doubt the Roman form of marriage by purchase ; it was purely secular.
(3) uses; if a woman lived with a man as his wife for a year, he acquired manus over her by a kind of prescription. The XII. Tables had already provided that this might be prevented if the woman absented herself for a space of three nights during the year (usurpatio trinoctii). Usus was already quite obsolete in classical times.
It may be that at one time marriage with manus was the only form of union recognized as marriage at all, but by the time of the XII. Tables this was apparently no longer the case, for it is clear that the usurpatio trinoctii, though it prevented manus, left the marriage subsisting, so that it was possible to be married without manus.
In any case marriage without manus was by far the more corn mon in all periods of which we have any real knowledge. It was formed (provided the parties were above the age of puberty and if under potestas had their fathers' consent) simply by the be ginning of conjugal life with the intention of being married, and this was normally evidenced by the bringing of the bride to the bridegroom's house. It was however legally independent of all ceremonies whether pagan or Christian which might accompany it, and of consummation. The wife remained under her father's potestas if he were still alive, if he were dead, she continued (so long as guardianship of women continued) to have the same guardian as before marriage. It was necessary that both spouses should be citizens, or if one was not, that he or she should have conubium, the right given to some non-Romans of contracting a Roman marriage. The chief importance of this was that if a Roman contracted a union with a foreign woman, the children would not be in his potestas unless she had conubium. In mar riage without minus the property of the spouses remained en tirely distinct, and even gifts between husband and wife were in valid. It was usual however for a dowry to be given to the hus band on the marriage by the woman or her father ; this originally became the indefeasible property of the husband, but in classical times already the wife could recover it if the marriage ended by divorce or by the husband's death, and by Justinian's legislation it had always to be returned to the wife or her heirs.