Guardianship of Women (Tutela Mulierum)

According to the old Roman law a woman never attained full legal independence. She was always under either the patria potestas, the manus, or the guardianship (tutela) of a tutor. A woman who was sui juris (not under potestas or manus) could not bind herself by any transaction nor conclude any juristic act of the Jus Civile (negotium juris civilis) such as mancipatio, in jure cessio or making a will, without the concurrence (autoritatis interpositio) of her tutor. This subjection of women was early recognized as unreasonable, and in time was abolished.

As Gains says : "For keeping women of full age under a tutor almost no reason of any worth can be urged. For the common belief that from the levitv of their disposition they are often deceived, and may, therefore, in fairness, be guided by the authority of tutors, seems plausible rather than true" (Gaius, I, § 190).

Tutors might be appointed by will of paterfmnilias or of husband of wife in manu (testamentarii tutores), or in the absence of testamentary tutors, women as tutors had their nearest male agnates (legitimi tutores). And in the absence of any other tutor, the magistrates might appoint tutors (dativi tutores). In the case of testamentary appointment there was a practice in the time of Cicero to leave the name of the tutor in blank in the will and allow the woman to fill it up.

The requirement of the tutor's consent to the woman's transactions in time degenerated into a mere form, and at a comparatively early period she had power to compel him to give his consent, and except in matters of the Jus Civile, consent was not required. The agnates as guardians (legitimi tutors) had, indeed, more authority, and could withhold consent in certain cases, but this form of guardianship was abol- ished by the lex Claudia (A. D. 47). The entire law of guardianship of women was obsolete in Justinian's time. There remained only the guardianship of females, as in case of males, as minors.

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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 suppo...
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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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