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rights of a patron over the child; if as was usual (see Tit. 12. 6, note), it was the father, then, as being the patron, he was included in the terms of the law of the Twelve Tables, and was a tutor legitimus (Gal. i. 172; D. xxvi. 4. 3–10); if it was not, he was a tutor fiduciarius (Gal. i. 166), a tutor bound to the father by a trust. In the case of a slave, the children of a patron succeeded to the rights of patronage; but this did not extend to the case of emancipated children: the children not emancipated were not the patrons of those who were. They were not tutors, therefore, by the law of the Twelve Tables, and the word fiduciarii is borrowed from its more proper usage to express their position, and is in this case merely opposed to legitimi. (D. xxvi. 4. 4.) The reason given in the text for their being only tutores fiduciarii, viz., that the emancipated infant would bave been sui juris if he had not been emancipated, is manifestly an imperfect one. For it would not be necessarily true when a grandfather emancipated his grandson, who, if his father were living, would not on the grandfather's death become sui juris. If the father of the emancipated child left no other children above the age of puberty, the nearest agnatus, as, for instance, the father's brother, was the tutor, and he, too, was called the tutor fiduciarius. (THEOPH. Paraph.)
The perfecta ætas was the age of twenty-five years.
Tit. XX. DE ATILIANO TUTORE VEL EO, QUI EX LEGE
JULIA ET TITIA DABATUR. Si cui nullus omnino tutor fuerat, If any one had no tutor at all, one ei dabatur in urbe quidem Roma a used to be given him, in the city of Rome prætore urbano et majore parte tri- by the prætor urbanus, and a majority bunorum plebis tutor ex lege Atilia, of the tribunes of the plebs, under the in provinciis vero a præsidibus pro- les Atilia ; in the provinces, by the rinciarum ex lege Julia et Titia præsides under the lex Julia et Titia.
Gal. i. 185. The date of the lex Atilia is unknown, but it must have been in existence in the year of the city 557, when Livy (xxxix. 9) says of a liberta, · Post patroni mortem, quia in nullius manu erat, tutore a tribunis et prætore petito. And as the necessity for some means of appointing a tutor, where one was not appointed by testament or law, must have been early felt, the lex Atilia, or one similar to it, must probably have existed long before the time of which Livy speaks. The date of the lex Julia et Titia was probably 723 A.U.C. As there were ten tribunes, the majority would be at least six.
The term tutor dativus is used by Justinian (Cod. i. 3. 52) to express a tutor given by the magistrate; this term being used by Gaius (i. 154) to express tutors given by testament.
1. Sed et si testamento tutor sub 1. Again, if a testamentary tutor condicione aut die certo datus fuerat, had been appointed conditionally, or
quamdiu condicio aut dies pendebat, from a certain time, then until the ex iisdem legibus tutor dari poterat. completion of the condition or arrival Item si pure datus fuerat, quamdiu of the time fixed, another tutor might nemo ex testamento heres existebat, be appointed under the same laws. tamdiu ex iisdem legibus tutor pe- Also, if a tutor had been given untendus erat, qui desinebat tutor esse, conditionally, yet, as long as no one si condicio existeret aut dies veniret had accepted the inheritance, as heir aut heres existeret.
by the testament, another tutor might
If the wishes of the testator were declared to any extent respecting the appointment of a tutor, this entirely excluded the tutores legitimi, and every deficiency in the declaration was remedied by the interposition of the magistrate. (D. xxvi. 2. 11.)
No testament took effect until an heir entered on the inheritance. If it was known that a testament existed appointing a tutor, this excluded the agnati from being tutors; but the tutor under the testament did not commence his tutela until the testament took effect. Meantime a tutor appointed by the magistrate took care of the pupil.
2. Ab hostibus quoque tutore 2. If, again, a tutor was taken pricapto, ex his legibus tutor peteba- soner by the enemy, application could tur, qui desinebat esse tutor, si is, be made, under the same laws, for qui captus erat, in civitatem rever- another tutor, whose office ceased
tutelam jure postliminii.
captivity ; for on his return he resumed the tutelage by the jus post
liminii. Gai. i. 187.
For an account of the jus postliminii, see Title 12. 5. | 3. Sed ex his legibus pupillis 3. But tutors have ceased to be tutores desierunt dari, posteaquam appointed under these laws, since they primo consules pupillis utriusque have been appointed to pupils of either sexus tutores ex inquisitione dare sex, first by the consuls, after inquiry coeperunt, deinde prætores ex con- into the case, and subsequently by the stitutionibus. Nam supra scriptis prætors under imperial constitutions. legibus neque de cautione a tutoribus For the above-mentioned laws required exigenda rem salvam pupillis fore, no security from the tutors for the neque de compellendis tutoribus ad safety of the pupils' property, nor did tutelæ administrationem quidquam they contain any provisions to compel cavetur.
them to discharge the duties of the office.
The power to appoint tutors was given by Claudius to the consuls (SUET. in Claud. 23), and transferred by Antoninus Pius (JUL. Capit. in Vit. M. Anton. 10) to the prætors.
4. Sed hoc jure utimur, ut Romæ 4. Under our present system tutors quidem præfectus urbis vel prætor are appointed at Rome by the præfect secundum suam jurisdictionem, in of the city, or the prætor, according to provinciis autem præsides ex inqui- his jurisdiction, and, in the provinces, sitione tutores crearent, vel magi- by the præsides, after inquiry ; or by stratus jussu præsidum, si non sint an inferior magistrate, at the command magnæ pupilli facultates.
of the præses, if the property of the
pupil is only small.
D. xxvi. 5. 1. The profectus urbis was, from the time of Augustus, an officer who had the superintendence of the city and its police, with jurisdiction extending one hundred miles from the city, and power to decide on both civil and criminal cases. As he was considered the direct representative of the emperor, much that previously belonged to the prætor urbanus fell gradually into his hands. The præfectus urbis appointed tutors in cases where pupils of higher rank and larger fortune were concerned ; the prætor, when the pupils were of humbler station and smaller fortune; and this it is which is referred to in the words secundum suam jurisdictionem.
In the provinces the proses appointed ; but until Justinian altered the law (see next paragraph), not only could not municipal magistrates appoint without the authority of the præses, but no one could be authorised by the præses unless he was a magistrate. (D. xxvi. 5. 8.)
5. Nos autem per constitutionem 5. But by one of our constitutions, nostram et hujusmodi difficultates to do away with the difficulties to hominum resecantes nec exspectata which these provisions as to different jussione præsidum, disposuimus, si persons gave rise, and to avoid the nefacultas pupilli vel adulti usque ad cessity of waiting for the order of the quingentos solidos valeat, defensores præses, we have enacted, that if the civitatum(una cum ejusdem civitatis property of the pupil or adult does not religiosissimo antistite vel apud alias exceed five hundred solidi, tutors or publicas personas) vel magistratus, curators shall be appointed by the vel juridicum Alexandrinæ civi- defensores of the city (acting in conjunctatis tutores vel curatores creare, tion with the holy bishop, or before legitima cautela secundum ejusdem other public persons), or by the magisconstitutionis normam præstanda, trates, or, in the city of Alexandria, videlicet eorum periculo, qui eam by the judge ; but legal security must accipiant.
be given according to the terms of the same constitution, that is to say, at the
risk of those who accept it.
Cod. i. 4. 30. The constitution of Justinian provided that, where the fortune of the person requiring a tutor or curator did not amount to more than 500 solidi (the aureus, 1l. 18. ld. of English money, after the time of Alexander Severus was called a solidus), a local magistrate, without the authorisation of the præses, could appoint, not making a formal examination into the position and character of the tutor or curator (inquisitio), but merely taking a money security for his faithful performance of his duties.
The defensor was a magistrate appointed for two years out of the decuriones of a city. His principal business was to act as a check on the præses, and he had besides a limited civil and criminal jurisdiction.
6. Impuberes autem in tutela esse 6. It is agreeable to the law of naturali jure conveniens est, ut is, nature, that persons under the age of qui perfectæ ætatis non sit, alterius puberty should be under tutelage, so tutela regatur.
that persons of tender years may be
under the government of another. Gai. i. 189.
Gaius, in his Institutes, after the words extracted from him in the text, proceeds to contrast with the tutelage of minors, which is an institution natural and necessary in all communities, the tutelage of women, which he considers founded on no reasonable basis. The original reason of this tutelage was probably the incapability of women to share in the proceedings of the curia, and their being supposed unfit to go through solemn forms. In default of a testamentary tutor appointed by the father of the woman if she was in his power, or by the husband if she was in manu—and it may be mentioned that the husband could by testament either appoint a tutor to his wife in manu, or give her the option of choosing one (Gal. i. 148 et seq.)—the nearest agnatus was the tutor, women being either alieni juris, or else under a tutor all their lives; the tutor being allowed in certain cases to surrender his office (Gal. i. 168), and the woman being allowed to demand from the prætor or præses a tutor if there was no other tutor, or a substituted tutor in place of one absent. (Ulp. Reg. 11. 18; Gal. i. 173.) The lex Papia Poppæa exempted from tutelage women who had three children, and a lex Claudia (A.D. 45) suppressed the tutelage of the agnati altogether in the case of women of free birth, leaving only the tutelage of ascendants and patrons. (Gal. i. 157.) This modified tutelage of women existed in the time of Ulpian (Reg. 11. 8), but had fallen into desuetude in the time of Justinian. While the tutelage of women lasted, the woman above puberty (see Gar. i. 180 et seq.) managed her own affairs, and the tutor was only called in to give his auctoritas on occasions of moment, the prætor interposing to force a tutor to give his authority when necessary, but the prætor would not adopt this course where the tutor was an ascendant or patron, unless some very strong reason existed.
7. Cum igitur pupillorum pupilla- 7. As tutors administer the affairs rumque tutores negotia gerunt, post of their pupils, they may be compelled pubertatem tutelæ judicio rationem to account, by the actio tutelæ, when reddunt.
their pupils arrive at puberty.
Gal. i. 191. The modes by which the faithful discharge of his duty by a tutor was insured are given in the 24th Title.
Tit. XXI. DE AUCTORITATE TUTORUM.
Auctoritas autem tutoris in qui- In some cases it is necessary that busdam causis necessaria pupillis est, the tutor should authorise the acts of in quibusdam non est necessaria. Ut the pupil, in others not. When, for ecce si quid dari sibi stipulentur, instance, the pupil stipulates for somenon est necessaria tutoris auctoritas : thing to be given him, the authorisaquod si aliis pupilli promittant, ne- tion of the tutor is not requisite ; but cessaria est : namque placuit, me if the pupil makes the promise, it is Lorem quidem suam condicionem requisite ; for the rule is, that pupils licere eis facere etiam sine tutoris may make their condition better, even auctoritate, deteriorem vero non without the authorisation of their aliter quam tutore auctore. Unde in tutor, but not worse unless with the his causis, ex quibus mutuæ obli- tutor's authorisation. And therefore gationes nascuntur, in emptionibus in all cases of reciprocal obligation, as Fenditionibus, locationibus conduc- in contracts of buying, selling, letting, tionibus, mandatis, depositis, si tu- hiring, bailment, deposit, if the tutor toris auctoritas non interveniat, ipsi does not authorise the pupil to enter quidem, qui cum his contrahunt, into the contract, the person who conobligantur, at invicem pupilli non tracts with the pupil is bound, but the obligantur.
pupil is not bound. D. xix. 1. 13. 29.
The duties of the tutor were twofold : to administer the affairs of the pupil, and to interpose what was termed his authority. It is to the second head of his functions that this Title refers.
There were many things in which the Roman law, in its stricter times, did not allow one person to represent another. Much that to us seems only to belong to private life was bound up with political and public duties and rights. (See Introd. sec. 43.) The law could not contemplate one beneath the age of puberty acting as if he was a member of the curia, or any one else coming forward to fill for him his place in the list of citizens. No one could bring actions of strict law in another name, or go through, for another, the fictitious process of in jure cessio, or through the forms of manumission and adoption, or perform for another any of those acts to which a solemn ceremony was attached, such as mancipation or stipulation. (D. xl. 2. 24; D. xlvi. 4. 13. 10.) It was necessary that a minor should himself go through the forms and repeat the words requisite for the validity of such transactions ; but it was also necessary that the tutor should be present and give his sanction. The auctoritas of the tutor was the complement (auctoritas is derived from augeo) to the symbolical forms through which the child went. (See Introd. sec. 43.) It represented the intention or the mental act on which those forms ultimately rested. If the child could not speak with understanding, no such forms could be used; if he could speak, but could scarcely understand the import of what he said, or, in technical language, if, being still infanti proximus, he had as yet little or no intellectus (GAI. iii. 109), the tutor could but very rarely, by interposing his sanction, give legal validity to words uttered without understanding. It was only when the act would confer a very great and very clear benefit on the child, that this was allowed; and although the tutor was, to a certain extent, permitted to act for an infant, it was not until a very late period of Roman law that a constitution of Theodosius and Valentinian, A.D. 426 (C. vi. 30. 18. 2), permitted a tutor to enter on an inheritance in the name of an infant. (D. xxix. 2. 9.)