Effects of Marriage with Manus

By the strict marriage the wife passed into the marital power of her husband {in manum viri). The manus or marital power may be regarded as a particular form of the patria potestas. An uxor in manu was a member of her husband's household. Although called a materfamilias, this term did not have a meaning corresponding to the term paterfamilias.

The wife was not the head of the family. She stood legally in the position of a daughter {in loco filiafamilias) of her husband. If she had children she was regarded as a sister of her own children. The relation of husband and wife, both as regards the wife's person and her property, was governed by the same rules of law as governed the relation of father and child. The law of husband and wife may, therefore, be considered as merely a particular branch of the law of parent and child. The husband had, in general, the same power over the person of his wife in manu as the father had over his child.

Anciently, it may be supposed, the husband had power to chastise his wife, and even to kill her, as he had to chastise or kill his child. But this extreme power to kill the wife does not appear to have existed within historic times. The right of punishment seems to have survived, but in serious cases the husband was required by custom and tradition, though, it seems, not by law, to consult a council composed of the wife's relatives.

Probably the husband at first had the power to sell his wife, just as, in marriage by coemptio, he bought her, but it is said that no cases of actual sale have come down to us. But a fictitious sale {mancipatio) was a recognized mode of emancipating the wife from the manus of her husband. It thus appears that, while originally the husband probably had precisely the same powers over the person of his wife as the father had over the person of his child, the rigor of the law was softened at an earlier date and more completely in the case; of the wife than of the child.

As regards the wife's property, her position was exactly the same as that of a child in power. Whatever she had at the time of her marriage passed by law to her husband. And whatever she afterwards acquired by gift, inheritance, or otherwise, belonged to him. She could not acquire or own property by herself, but only for him. She could, however, like slaves and children, enjoy the limited form of ownership known as peculium. The wife's antenuptial debts ex con- tractu were extinguished by the marriage.

This rule, however, was modified by the praetor, who permitted the wife's creditors to subject such property of the wife as came to the husband by the marriage to the payment of their claims in case the husband refused to pay them. Thus it may be said that the husband, by the praetorian law, was liable for his « wife's antenuptial debts ex contractu to the extent of her antenuptial property acquired by him by the marriage. As the wife, like the child, had no contractual capacity, neither the wife nor the husband could be held liable for the wife's postnuptial contracts, except that the husband could be held liable on his wife's contracts in those special cases in which by the praetorian law a father was liable for the contracts of his child.

The husband was liable for his wife's torts just as a father is liable for the torts of his child. And if the husband was unwilling to pay the damages or the penalty, he might surrender the wife into the mancipium of the party injured, the wife being thereby placed in the position of a slave.

As a sort of compensation for the loss of her individual proprietary rights by her marriage, the wife in manu was given exactly the same rights of succession on her husband's death as though she had been his daughter. The wife also took the social rank of her husband. And the husband was at least morally bound to support his wife, though this was probably not his legal duty, unless the wife had a dowry, in which case the husband would be compelled to support her out of it.

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Slavery by Birth

The children of a female slave became the slaves of her master. The status of the father as free or slave was immaterial. The general rule governing the determination of the status of a child, whether as free or slave, or as citizen or alien, was as follows : Children born in lawful wedlock had the status of the father at the moment of conception, children born out of wedlock had the status of the mother at the moment of birth. Hence if the father of a child of a lawful marriage was free at the moment of conception, the child was free although the father should subsequently lose his freedom. As to children born out of wedlock, the general rule, as above stated, was that it was the status of the mother at the moment of birth that determined the status of the child. If the mother was free at the moment of conception but a slave at the moment of birth, the child was a slave, and conversely. This was the earlier law, but the rule was modified in the interest of liber...
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Mandate (Mandatum)

Mandate (mandatum) was a contract by which one person mandatarius agreed to do something gratuitously at the request of another mandator , who, on his part, agreed to save him harmless from all loss in so doing. The mandator was said to give the mandatory a mandate, or commission to do the act in question. The term mandatum is sometimes translated "agency", but this translation is misleading. The mandatory is not properly described as an agent. Mandate was the only gratuitous consensual contract; the others, sale, hiring, and partnership, all being founded upon a consideration. Like the others, it was a bona fidei negotium , and bound the parties to do all that was required by good faith. It was of the essence of the contract of mandate that the mandatory should act gratuitously. But while this was true in a strict legal sense, it was allowed to agree upon a sum to be paid as a honorium , or salary, which might be recovered only by a special action and not b...
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