Paternal Power as to Person of Child

Anciently the patria potestas included practically an absolute and arbitrary power of the paterfamilias over those subject to his power. His children and other agnatic descendants were practically in the position of his domestic animals. He had the power of life and death (jus vitce ac necis) and of selling into slavery. Actually his power was somewhat checked by the custom which required him to appeal to a family council in serious cases.

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he power of life and death and of selling into bondage was expressly recognized by the Twelve Tables. It was provided that "the father shall, during his whole life, have absolute power over his legitimate children. He may imprison the son, or scourge him, or keep him working in the fields in fetters, or put him to death, even if the son held the highest offices of state, and was celebrated for his public services. He may also sell the son. But if the father sell the son the third time, the son shall be free from his father."

The paterfamilias enjoyed this supreme power of life and death and of sale, no doubt, as a part of his general right of property. His children belonged to him, as did his cattle or his oxen, and he could do as he pleased with his own property. But there is another and a loftier notion which may have, in part at least, supported this rule of extreme paternal authority.

The head of the patriarchal household bore not only the character of proprietor, but also of ruler. He was a domestic judge, and his act in inflicting upon a disobedient son extreme punishment was probably regarded as the judgment of a magistrate rather than an arbitrary exercise of the right of ownership.

The right of a father to kill his offspring existed even down to the period of the Empire, and it is stated that infanticide was a common practice even in later times. A very early law, indeed, ascribed to Romulus, prohibited parents to expose any male children or their first born female children unless such children, in the opinion of five neighbors, were so deformed that they ought to be killed. The practice of infanticide was not prohibited until the year 374 A. D., when it was enacted that the exposure of infant children was a crime. The killing of older children, however, received various checks during the Empire.

The Emperor Trajan compelled a father who had been grossly cruel to his son to emancipate him and forfeit all share in his inheritance. And in the time of Hadrian a father who killed his son while hunting was punished by deportation to an island, and this although the son had committed adultery with his stepmother. Finally the Emperor Constantine (the first Christian emperor) enacted that if a paterfamilias slew his son, he should suffer the death of a parricide, that is, be tied up in a sack with a cock, a viper, and an ape, and be thrown into the sea or a river to be drowned.

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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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