Notes on Roman Law

The Roman law included an elaborate system of guardianship. The power of a guardian was" a form of family power, which took the place of paternal power in cases in which there was no one to exercise the latter. Guardianship was established in favor of persons who, although legally independent (sui juris), and hence not under potestas, were nevertheless under certain incapacities of fact or law which prevented them from being fully able to look after their own affairs. Such persons were (1) persons under age; (2) women; (3) spendthrifts; and (4) insane persons (lunatics). The Roman law recognized two general types of guardianship, tutela and cura. Tutela was employed for two classes of persons : ( 1 ) persons under the age of puberty ; (2) women. Cura was employed for (1) persons above the age of puberty, and under twenty-five (piibes minores) ; (2) spendthrifts; and (3) lunatics. Guardianship seems to have been originally in Rome an extension of the patria potest...

With respect to legal capacity, minors were divided into three classes : ( 1 ) Persons who had not yet completed the seventh year. Such a child was an infans ("incapable of speech"), and was incapable of performing any juristic act whatever. (2) Persons who had completed the seventh year but had not yet completed the twelfth year, in the case of females, or the fourteenth year, in the case of males. These were iuipuhes, the age of puberty being fixed at twelve for females and fourteen for males. The impubes were capable of some juristic acts, but were incapable of others. (3) Persons above the age of puberty but who had not completed the twenty fifth year. These were called minors (minores viginti quinque annis). There were two stages in the guardianship of minors cor- responding with the age of the minor. The guardianship of minors under the age of puberty was called tvJela impuherum, and that of minors above the age of puberty and under twenty-five was cal...

Tutors were appointed for children under the age of puberty. The office of tutor resembled somewhat that of the guardian in English law, but corresponded more nearly to that of the English trustee. The duties of the tutor had to do chiefly with the property and contracts of the child, and only to a limited extent related to his person. It was, indeed, the duty of the tutor to see that provision was made for the custody and education of his pupillus, but he was not required personally to undertake this task. Usually, when the child's father appointed the tutor by will, he made provision in the will also for the custody and education of the child. The person named in the will obtained the custody unless the child's relatives objected and the praetor sustained the objections. If no one was named in the will, the child's mother was entitled to the custody so long as she remained unmarried. If the tutor or the child's relatives objected to the mother's havi...

(1) Testamentary Tutors. These were appointed by the will of the deceased paterfamilias of the pupil. This mode of appointment was authorized by the Twelve Tables. ( 2) Statutory Tutors. These succeeded to the tutela by virtue of the provisions of the Twelve Tables or of some other Statute, but only if there were no testamentary tutors. They were called legitimi tutor es. They were the agnates (by Justinian's legislation, the nearest of kin, whether agnates or cognates) who in case of the death of the pupil would succeed to his inheritance. They were appointed upon the principle that those who had the advantage of the inheritance ought to bear the burden of the tutela (ubi entolumentum successionis ibi et onus tutelcs). In this connection may be mentioned also the guardianship of the patron over his freedman, and of the father over his emancipated child. (3) In the absence of a testamentary or statutory tutor, power was ' given to certain magistrates to appoint...

The duties of the tutor with respect to the care and management of the child's property were substantially those of an English trustee. Generally, he was required to administer the property of the pupillus as a prudent man would do, and if in consequence of the tutor's deliberate disregard of duty (dolus), or want of due diligence (culpa lata aut levis) the pupillus suffered loss or failed to gain an advantage that could, with due diligence, have been obtained for him, the tutor must make good the loss. And the tutor could not be released from responsibility even by an express clause in the will appointing him, for the tutela was a public office, the duties of which could not be modified by private arrangements. A child under the age of puberty possessed very little legal capacity, even though sui juris in the sense of not being under power. He could not bind himself by contract, and there were some legal transactions, as acquiring an inheritance, which even thou...

By the Roman law a male became of age for all purposes upon reaching the age of puberty. Females, at least under the older law, never attained full legal capacity. Plainly, however, a law which gave to a boy of fourteen full power to manage his own affairs was unsafe for him, and modifications were introduced from time to time for his protection. By an early law of uncertain date passed for the relief of minors (le.r Plcetoria), they were permitted to apply to the prsetor for the appointment of a form of guardian known as a curator, who would be appointed on proof of the minor's incapacity to manage his own affairs. And in time it became the rule for magistrates to appoint a curator upon the minor's application. But a minor above the age of puberty could not be compelled to have a curator, except when, on being sued, he neglected or refused to apply for a curator, in which case a curator would be appointed on petition of the plaintiff to defend the suit. The du...

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 man...