Paternal Power as to Property of Child

As respects property the position of a filiusfamilias was originally precisely the same as that of a slave. He could not acquire or own anything for himself. Whatever he acquired by any mode belonged to his paterfamilias. "A filiusfamilias, in the time of Cicero, even had he filled every office up to the consulate, or had, like Cincinnatus, twice saved the state, was not capable of, in the true sense of the word, omning the smallest coin current in Rome" (Hunter, 292).

And it is a striking fact that although .married women were practically completely emancipated during the period of the Empire, a son under power, even though he might attain the highest dignities of state, remained in a position of dependence and subordination to the paternal power, to the last days of Roman history.

This, however, was peculiarly true of the personal status of the filiusfamilias. In time he was accorded property rights of a more or less substantial character. During the Republic the only concession was to allow him to enjoy peculium, on the same terms as a slave (Dig. 15, I, 1, 5).

In the time of the early Empire, a son was permitted to own and enjoy all property coming to him from any source, even from his father, by reason of his being a soldier. This property was called peailium castrense. Later the privilege was extended to include property acquired by the higher public ofificers as such. This was called peadium quasi-castrense. Finally, by successive enactments, the father's right to property acquired by his son from any one else than tbe father, as from the mother by testament or on her death intestate, was cut down to the mere usufruct or right to enjoy and manage the property during his life, the son being regarded as the owner.

This property was called bona adventitia hus in the time of Justinian, the only proprietary incapacity of a fiJhisfamUias was his incapacity to acquire property from his own father {ex re patris). He was the absolute owner of the peculium casfrciise and the peculium quasi-castrense, and the owner of the naked legal title of the bona- adventitia; the usufruct belonging to the paterfainiiias. Property received from the father by way of peculum (called peculium profectitium, this being the early type of peculium), remained the property of the father.

.

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...
Read more

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...
Read more

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...
Read more