8 intellegantur), vel omnes sui iuris efficere. Sed et si pater filium, quem in potestate habet, avo vel proavo naturali secundum nostras constitutiones super his habitas in adoptionem dederit, id est si hoc ipsum actis intervenientibus apud competentem iudicem manifestavit, praesente eo qui adoptatur et non contradicente nec non eo qui adoptat, solvitur quidem ius potestatis patris naturalis, transit autem in huiusmodi parentem adoptivum, in cuius persona et adoptionem plenissimam 9 esse antea diximus. Illud autem scire oportet, quod, si nurus tua ex filio tuo conceperit et filium postea emancipaveris vel in adoptionem dederis praegnante nuru tua, nihilo minus quod ex ea nascitur in potestate tua nascitur: quod si post emancipationem vel adoptionem fuerit conceptum, patris sui 10 emancipati vel avi adoptivi potestati subicitur: et quod neque naturales liberi neque adoptivi ullo paene modo possunt cogere parentem de potestate sua eos dimittere.

XIII.

DE TUTELIS.

Transeamus nunc ad aliam divisionem. nam ex his per

§ 9. This is only an illustration of the rule that the status of children born of lawful wedlock was determined at the time of their conception, because they followed the condition of their father: hi qui legitime concipiuntur ex conceptionis tempore statum sumunt' Gaius i. 89. On the other hand, illegitimate children followed the condition of their mother, being 'spurii,' Tit. 10. 12 supr., and accordingly in the time of Gaius their condition was determined by her status at the time of birth: for the later modification of this rule see Tit. 4, and note supr.

If the potestas were terminated in some mode by which the filiusfamilias underwent capitis deminutio, he ceased to belong to his previous agnatic family, and thereby lost all his rights of intestate succession and guardianship to its members: consequently the distinction between modes in which this occurred and those in which it did not is important. The former are three in number: loss of libertas or civitas (apart from the ius postliminii), emancipation, and subjection to some other power, whether potestas, manus, or mancipium (e. g. the latter as produced in noxal surrender before Justinian).

Tit. XIII. Tutela was originally conceived rather as a right than as a duty (whence the phrase 'tutelam nancisci,' Tit. 12. 6. supr., Tit. 19. pr. inf.), but in Justinian's time it had become a publicum munus (Tit. 25. pr. inf.), a function which the state required all its qualified members to discharge if called upon, and from which they could be ex

sonis, quae in potestate non sunt, quaedam vel in tutela sunt vel in curatione, quaedam neutro iure tenentur. videamus

cused only on definite grounds enumerated in Tit. 25. inf. Women, however, peregrini, slaves, minors (Tit. 25. 13. inf.) and soldiers (ib. 14) were absolutely incapacitated from serving the office, though under the earlier Emperors this rule was sometimes relaxed by special favour on behalf of the mother or grandmother of the ward: and in the time of Justinian it was settled that a mother or grandmother could after the death of her husband demand the tutela of her children or grandchildren, provided (1) she engaged 'apud acta' (see on Tit. 11. 12 supr.) not to marry again; (2) resigned the benefits of the SC. Velleianum and other enactments passed in favour of the weaker sex, and (3) gave an express hypothec to the children over her whole property. A second marriage caused immediate forfeiture of the tutela.

Under the later law, the leading idea in the conception of tutela is the pupil's imperfect capacity of disposition, to supply which is the guardian's main duty (Tit. 21 inf.). According to modern ideas, incapacity of disposition results only from deficiency of intellectual powers, and this was the view which prevailed in the later Roman law; but it seems clear that in the earlier period the purpose of tutela was far less the protection of the ward than that of the ward's family: it was regarded as a right to look after his property, and to prevent any alienation by which it would leave the family in case of his decease before the tutela determined: hence the association between rights of guardianship and of succession: 'quo tutela redit, eo hereditas pervenit, nisi cum feminae heredes intercedunt' Dig. 50. 17. 73. pr. This conception of tutela is well illustrated by an institution which had become obsolete before Justinian, the 'perpetua tutela mulierum.' Justinian speaks only of impuberes as under guardianship (§ 1), but the earlier Roman law maintained in the interest of the family the fiction of a woman's imperfect capacity of disposition, and retained her, if sui iuris, under the supervision of a tutor throughout her life: 'itaque si quis filio filiaeque testamento tutorem dederit, et ambo ad pubertatem pervenerint, filius quidem desinit habere tutorem, filia vero nihilominus in tutela permanet' Gaius i. 145. This mulierum tutela, at least in Gaius' time, was of two kinds. Its main object was to secure to the patron and the agnates their right to the woman's property at her death, not to protect the woman herself; thus, where the tutela was legitima, i. e. vested in the agnates or patron, she could neither make a will, alienate res mancipi, nor incur a contractual obligation without their auctoritas or sanction, Gaius i. 192. The XII Tables had appointed as a woman's guardian her patron if she were libertina or had been emancipated : failing a patron, her nearest agnates-all of these being the persons first in succession to her property on her decease. But, besides the tutela of the patron and agnates (tutores legitimi), other forms in course of time came into existence ('alterius generis tutores' Gaius i. 194), viz. (1) tutores optivi, selected by the woman herself under a power given by

igitur de his, quae in tutela vel in curatione sunt: ita enim intellegemus ceteras personas, quae neutro iure tenentur.

ac

the will of a husband in whose manus she had been; (2) tutores fiduciarii, in case of a freeborn woman's manumission e mancipio (Gaius i. 115 a); (3) tutores cessicii; (4) tutores Atiliani, appointed by the magistrates. Testamentary guardians were as old as the XII Tables (note on § 3 inf.); but in relation to women they resembled the four kinds just specified in possessing but the shadow of those powers of veto and control which belonged to a tutor legitimus. The sanction of a tutor who was not legitimus was required to validate the woman's dispositions, wherever that of a statutory guardian would have been necessary: 'tutoris auctoritas necessaria est mulieribus quidem in his rebus : si lege aut legitimo iudicio agant: si se obligent, si civile negotium gerant, si libertae suae permittant in contubernio alieni servi morari, si rem mancipi alienent' Ulpian, reg. 11. 27; in 20. 15 he adds the execution of a will. But in all these cases the sanction was merely formal : 'pupillorum pupillarumque tutores et negotia gerunt, et auctoritatem interponunt mulierum autem tutores auctoritatem duntaxat interponunt' Ulpian, loc. cit. 25, and the auctoritas of a non-statutory guardian could be demanded by the woman as a matter of right: 'loquimur autem de his scilicet feminis quae non in legitima parentium aut patronorum tutela sunt, sed de his quae alterius generis tutores habent, qui etiam inviti coguntur auctores fieri' Gaius ii. 120, 'saepe etiam [tutor] invitus auctor fieri a praetore cogitur' i. 190.

It was in respect of making a will that the woman was most restricted, the original rule being that no woman could do this who had not subjected herself to capitis deminutio by coemption, followed by remancipation and manumission, or, in other words, by a fictitious marriage, Gaius i. 115 a; she thus obtained a tutor fiduciarius, who authorized the testament 'dicis causa,' ib. 190, though in all this business the interests of the patron or agnates were completely secured, for without their sanction at the first the coemption could not have taken place at all.

The only independent women who were exempted by the older law from perpetual guardianship were the vestal virgins, on whom this privilege had been bestowed by the XII Tables, Gaius i. 145; but after the fall of the Republic important changes were made, especially in respect of testaments. The lex Iulia and Papia Poppaca, A. D. 9, released from guardianship all women who had borne a certain number of children (ius liberorum), and this boon must have benefited a very large proportion of married women who were sui iuris. Not many years later a law of Claudius entirely abolished the legitima tutela of agnates over women, Gaius i. 157, and by a senatusconsult passed under Hadrian they were enabled to make a will without the necessity of a coemption, though the auctoritas of the guardian was not dispensed with. Thus, in the time of the classical jurists, every woman who was sui iuris, and who was not a vestal virgin or exempted under the lex Papia, must have a guardian: but his

prius dispiciamus de his quae in tutela sunt. Est autem 1 tutela, ut Servius definivit, ius ac potestas in capite libero ad tuendum eum, qui propter aetatem se defendere nequit, iure

auctoritas was not requisite for the validity of all dispositions, and even where it was he could not refuse it unless he were a patronus or parens manumissor. The whole institution in fact had ceased to have any significance, and the jurists themselves seem to have thought it an absurdity: 'feminas vero perfectae aetatis in tutela esse fere nulla pretiosa ratio suasisse videtur: nam quae vulgo creditur, quia levitate animi plerumque decipiuntur, et aequum erat eas tutorum auctoritate regi, magis speciosa videtur quam vera' Gaius i. 190. It is not, however, till after Diocletian that guardianship of women entirely disappears. Cf. Mr. Poste's note on Gaius i. 189, and Savigny, vermischte Schriften i. 10.

§ 1. Though the power of the tutor was data ac permissa by the civil law, tutela was not regarded by the Romans as an institution iuris civilis: 'impuberes autem in tutela esse naturali iure conveniens est, ut is qui perfectae aetatis non sit, alterius tutela regatur' Tit. 20. 6 inf., 'impuberes quidem in tutela esse omnium civitatium iure contingit' Gaius i. 189, the latter contrasting guardianship in this respect with patria potestas. Mr. Poste, on the other hand, ascribes it to ius civile, on the ground that no institution containing numerical definitions can be supposed to belong to natural law, if this is the less arbitrary element of the positive code. But this does not show that the institution is not iuris gentium, but only that each state fills up voids in the 'natural theory' by rules of its own, e. g. as to age, the persons who are to act, their precise powers, etc.

A guardian's responsibilities commenced immediately he was aware that the office had been cast upon him: 'ex quo innotuit tutori se tutorem esse, scire debet periculum tutelae ad eum pertinere' Dig. 26. 7. 5. 10, and if he had a valid excuse it had to be stated within the time allowed by law, or else it was of no avail, Dig. ib. 1. 1. The main purpose of the tutela impuberum, at least in the later Roman law, was the supplementing of the ward's imperfect capacity of disposition, and the guardian's functions related to both his person and his property. He was responsible for his maintenance and education, so far as his means sufficed, unless exempted from this by special direction of the appointing parent or magistrate. In relation to the property, his sphere of action depended greatly on the pupil's age. If he were infans (for which see on Bk. iii. 19. 10 inf.) he was incapable of any act or disposition, and the tutor was said 'negotia pupilli gerere' and to have the administratio. In this respect his freedom of action was largely curtailed by imperial legislation: 'imperatoris Severi oratione prohibiti sunt tutores et curatores praedia rustica vel suburbana distrahere (sell)' Dig. 27. 9. 1. pr. Constantine extended the prohibition still further: 'iam ergo venditio tutoris nulla sit nisi interpositione decreti, exceptis

2 civili data ac permissa. Tutores autem sunt, qui eam vim ac potestatem habent, ex qua re ipsa nomen ceperunt. itaque appellantur tutores quasi tuitores atque defensores, sicut 3 aeditui dicuntur qui aedes tuentur. Permissum est itaque parentibus liberis impuberibus, quos in potestate habent, testamento tutores dare. et hoc in filio filiaque omnimodo procedit; nepotibus tamen neptibusque ita demum parentes possunt testamento tutores dare, si post mortem eorum in patris sui potestatem recasuri non sunt. itaque si filius tuus mortis tuae tempore in potestate tua sit, nepotes ex eo non poterunt testamento tuo tutorem habere, quamvis in potestate tua fuerint; scilicet quia mortuo te in patris sui potestatem re

duntaxat his vestibus, quae detritae usu, aut corruptae servando servari non potuerint. Animalia quoque supervacua minorum, quin veneant, non vetamus' Cod. 5. 37. 22. Justinian forbade tutors and curators to intermeddle in the ward's affairs until they had caused a complete inventory of his property to be made, Cod. 5. 51. ult. But on ceasing to be infans the pupil was held to acquire a power of volition, and thereby capacity of disposition; yet his lack of intellectual powers was thought likely to betray him into transactions by which he might be injured, and thus the rule was established, that for all acts by which the pupil could possibly injure his proprietary interests the guardian's auctoritas was necessary, though the former was regarded as himself the acting party, especially in dispositions which were iuris civilis, and therefore 'procuratorem non recipiebant;' see Tit. 21. pr. inf., and cf. the note on Bk. iii. 19. 10 referred to. The relation between guardian and pupil was quasi ex contractu Bk. iii. 27. 2 inf., q. v.

§ 3. The right of the paterfamilias to appoint by his will tutors to such females in his power as would become sui iuris on his decease, and to such males in the same position as were impuberes, was established, if not for the first time conferred, by the XII Tables: 'testamento quoque nominatim tutores dati confirmantur eadem lege duodecim tabularum, his verbis uti legassit super pecunia tutelave suae rei, ita ius esto: qui tutores dativi appellantur' Ulpian, reg. 11. 14. The intended tutor must have testamentifactio with the testator, and Latini Iuniani could not be thus appointed, Gaius i. 24. It would seem that a testamentary guardian could at one time decline the office, or even lay it down after acceptance, Ulpian, reg. 11. 17: this right is not mentioned in Justinian, which marks the transition from the conception of tutela as a right to that of a munus publicum. For the formulae by which testamentary guardians were appointed see Gaius i. 149; for the effect of placing such appointment before the institution of the heir, Gaius ii. 231: cf. Tit. 14. 3 inf. A testamentary guardian might be appointed by codicils testamento confirmati, Dig. 26. 2. 3: ib. 8. pr.