But when the child had entered on his eighth year, and was now pubertati proximus or approaching thereto, he was considered to have intellectus, but not judicium (THEOPH. Paraph. on Bk. iii. 19. 9); that is, he understood the meaning of the form, but could not decide for himself whether it was to his advantage to go through the act or not. This want of judgment the tutor supplied and in every case where the tutor gave his sanction, the act was legally valid. Supposing, however, a pupil acted without the auctoritas of the tutor, what was the consequence? In the case of contracts the pupil acting without authorisation took every benefit, but sustained no injury from the contract; because, while his tender years shielded him, the person with whom he contracted, having by the agreement made a formal expression of his will, must abide the event. But when it is said that a pupil took every benefit of the contract, it must not be understood that he could continue to enjoy at pleasure the advantages of another's property without giving anything for the enjoyment. The original owner might reclaim the property; and if a profit was being derived from its possession, might take that profit to himself. (D. xxvi. 8. 5. 1.) Only he could never make the pupil restore or refund anything that was once gone; and while a pupil could always disclaim an executory contract made to his disadvantage, he could always, through the intervention of his tutor, enforce one that promised to benefit him. In other cases, however, the act of the pupil without authorisation was altogether invalid, because there was a risk involved; and although it might practically happen that the act would have been advantageous to the pupil, the law guarded him against the risk by making his act invalid. What these cases were is learned from the next paragraph.

1. Neque tamen hereditatem adire neque bonorum possessionem petere neque hereditatem ex fideicommisso suscipere aliter possunt nisi tutoris auctoritate, quamvis lucrosa sit neque ullum damnum habeat.

1. Pupils, however, cannot, without the authorisation of the tutor, enter on an inheritance, demand the possession of goods, or take an inheritance given by a fideicommissum, even though to do so would be to their gain, and could involve them in no risk.

D. xxvi. 8. 9. 11.

The hereditas was the legal succession to the property of the deceased, the bonorum possessio here spoken of was an interest in the property of a deceased person, accorded by the prætor, and the hereditas ex fideicommisso was a succession received through the intervention of a trustee appointed by the testator. Introd. sec. 76.)

2. Tutor autem statim in ipso negotio præsens debet auctor fieri, si hoc pupillo prodesse existimaverit. Post tempus vero aut per

(See

2. A tutor who wishes to authorise any act, which he esteems advantageous to his pupil, should do so at once while the business is going on,

epistulam interposita auctoritas nihil and in person, for his authorisation is of no effect if given afterwards or by letter.

agit.

D. xxvi. 8. 9. 5.

3. Si inter tutorem pupillumve judicium agendum sit, quia ipse tutor in rem suam auctor esse non potest, non prætorius tutor, ut olim, constituitur, sed curator in locum ejus datur, quo interveniente judicium peragitur et eo peracto curator esse desinit.

3. When a suit is to be commenced between a tutor and his pupil, as the tutor cannot give authority with regard to his own cause, a curator, and not, as formerly, a prætorian tutor, is appointed, with whose intervention the suit is carried on, and who ceases to be curator when the suit is deter mined,

GAI. i. 184.

Although the person who assisted the pupil in an action in which the tutor was concerned did exactly what the tutor did for the pupil in any other action, and thus, as having to authorise the proceedings, might be spoken of as a tutor (ULP. Reg. 11. 24), yet, as he was given for a particular purpose, which tutors were not (see Tit. 14. 4), it was very natural that he should, in preference, receive the name of curator.

Subsequently the 72nd Novel (cap. 2) provided that, if the pupil became at any time the debtor of the tutor, another tutor should be added to protect the pupil.

TIT. XXII. QUIBUS MODIS TUTELA FINITUR.

Pupilli pupillæque cum puberes esse coeperint, tutela liberantur. Pubertatem autem veteres quidem non solum ex annis, sed etiam ex habitu corporis in masculis æstimari volebant. Nostra autem majestas dignum esse castitate temporum nostrorum bene putavit, quod in feminis et antiquis impudicum esse visum est, id est inspectionem habitudinis corporis, hoc etiam in masculos extendere. Et ideo sancta constitutione promulgata, pubertatem in masculis post quartum decimum annum completum illico initium accipere disposuimus, antiquitatis normam in femininis personis bene positam suo ordine relinquentes, ut post duodecimum annum completum viripotentes esse credantur.

Pupils, both male and female, are freed from tutelage when they attain the age of puberty. The ancients judged of puberty in males, not only by their years, but also by the development of their bodies. But we, from a wish to conform to the purity of the present times, have thought it proper, that what seemed, even to the ancients, to be indecent towards females, namely, the inspection of the body, should be thought no less so towards males; and, therefore, by our sacred constitution, we have enacted, that puberty in males should be considered to commence immediately on the completion of their fourteenth year; while, as to females, we have preserved the wise rule adopted by the ancients, by which they are esteemed fit for marriage on the completion of their twelfth year.

GAI. i. 196; C. v. 60. 3.

We learn from Gaius and Ulpian (Reg. 11. 28) that the Proculians were in favour of a particular age being fixed as that of puberty; the Sabinians wished to let it be decided by nature.

Justinian here decides in favour of the former. All agreed, however, that the age could in no case be taken as later than eighteen years.

1. Item finitur tutela, si adrogati sint adhuc impuberes vel deportati: item si in servitutem pupillus redigatur, ut ingratus a patrono, vel ab hostibus fuerit captus.

1. Tutelage is also determined, if the pupil, before attaining the age of puberty, is either arrogated, or suffers deportation, or is reduced to slavery as guilty of ingratitude on the demand of his patron, or if he becomes a captive.

D. xxvi. 1. 14.

The pubertati proximus was considered liable to criminal punishment (C. ix. 47. 7), and he might be made a slave for ingratitude towards his patron. If he returned from captivity the tutelage would recommence.

2. Sed et si usque ad certam condicionem datus sit testamento, æque evenit, ut desinat esse tutor existente condicione.

(See Tit. 20. 2.)

2. Again, if a person is appointed by testament to be tutor until a condition is accomplished, he ceases to be tutor on the accomplishment of the condition.

D. xxvi. 1. 14. 5.

3. Simili modo finitur tutela 3. Tutelage ends also by the death morte vel tutorum vel pupillorum. of the tutor, or of the pupil. D. xxvii. 3. 4.

4. Sed et capitis deminutione tutoris, per quam libertas vel civitas ejus amittitur, omnis tutela perit. Minima autem capitis deminutione tutoris, veluti si se in adoptionem dederit, legitima tantum tutela perit, ceteræ non pereunt. Sed pupilli et pupillæ capitis deminutio, licet minima sit, omnes tutelas tollit.

4. When, again, a tutor, by a capitis deminutio, loses his liberty or his citizenship, his tutelage is in every case at an end. But if he undergoes only the least capitis deminutio, as when a tutor gives himself in adoption, then only legal tutelage is ended, and not the other kinds; but any capitis deminutio of the pupil, even the least, always puts an end to the tutelage. D. iv. 5. 7; D. xxvi. 4. 2.

The tutela legitima belonged to the nearest of the agnati in right of his position in the family; but a tutor appointed by testament or by any special means had a charge committed to him personally, and his change of family could not alter this.

The minima deminutio capitis suffered by the pupil would make him under the power of the arrogator; and as he would be no longer sui juris, he could no longer have a tutor.

5. Præterea qui ad certum tempus testamento dantur tutores, finito eo, deponunt tutelam.

5. A tutor, again, who is appointed by testament to hold office during a certain time, lays down his office when the time is expired.

D. xxvi. 1. 14. 3.

6. Desinunt autem esse tutores, qui vel removentur a tutela ob id, quod suspecti visi sunt, vel ex justa

6. They also cease to be tutors who are removed from their office on suspicion, or who excuse themselves

causa sese excusant et onus administrandæ tutelæ deponunt secundum ea, quæ inferius proponemus.

on good grounds from the burden of the tutelage, and rid themselves of it according to the rules we will give hereafter.

D. xxvi. 1. 14. 4.

At the end of the tutelage the pupil could bring an action to make the tutor account (actio tutela directa); the tutor could bring one to procure indemnification for all losses he had sustained (actio tutela contraria). In the same way there was an action against and in behalf of a curator for similar purposes (actio negotiorum gestorum directa vel contraria).

TIT. XXIII. DE CURATORIBUS.

Masculi puberes et feminæ viripotentes usque ad vicesimum quintum annum completum curatores accipiunt; qui licet puberes sint, adhuc tamen hujus ætatis sunt, ut negotia sua tueri non possint.

Males arrived at the age of puberty, and females of a marriageable age, receive curators, until they have completed their twenty-fifth year; for, although they have attained the age of puberty, they are still of an age which makes them unfit to protect their own interests.

GAI. i. 197.

The law of the Twelve Tables provided for the appointment of curators in the case of madmen and prodigals, but did not make any provision for the protection of young persons who had attained the age of puberty. The first enactment on the subject, of which we have any knowledge, is the lex Platoria, or, as it is often written, Latoria, passed before the time of Plautus (Pseud. act i. sc. 3: Lex me perdit quinavicennaria! metuunt credere omnes), which, fixing the time of the perfecta atas at twenty-five years, provided that any one overreaching a person under that age should be liable to a criminal prosecution and to infamy (CIC. de Nat. Deor. 3. 30; de Off. 3. 15); and, possibly, permitted the appointment of curators in cases where a good reason for the appointment was given. The prætor subsequently provided a remedy, which was a great protection to persons under twenty-five years who came before him, by directing, in all cases where they had been prejudiced, a restitutio in integrum; that is, that the applicant should be placed exactly in the position in which he would have been had not the fraud been practised against him. Finally, Marcus Antoninus ordered that curators should be given in all cases, without inquiry, on the application of the pubes. seems the most probable and consistent account of the matter, which has been the subject of much dispute among commentators. The chief authority is Julius Capitolinus, in Vita M. Aurel. Anton. cap. 10, who says: De curatoribus vero, quum ante non nisi ex lege Lætoria, vel propter lasciviam vel propter dementiam darentur, ita statuit [M. Antoninus], ut omnes adulti curatorem acciperent non redditis causis.

This

1. Dantur autem curatores ab iisdem magistratibus, a quibus et tutores. Sed curator testamento non datur, sed datus confirmatur decreto prætoris vel præsidis.

1. Curators are appointed by the same magistrates who appoint tutors. A curator cannot be appointed by testament, but if appointed he may be confirmed in his office by a decree of the prætor or præses.

GAI. i. 1. 198; D. xxvi. 3. 1. 3.

The magistrates who appointed the curators were, therefore, at Rome, the præfectus urbis or the prætor; in the provinces, the præses or municipal magistrate. (See Tit. 20. 4.) A curator could not be appointed by testament, because it was not certain that the adolescens would require one. If he did require one, it was natural that the person named in the testament of the father should be selected by the magistrate as the most proper person.

2. Item inviti adulescentes curatores non accipiunt præterquam in litem curator enim et ad certam causam dari potest.

2. No adolescent is obliged to receive a curator against his will, unless in case of a law-suit, for a curator may be appointed for a particular special

purpose.

D. xxvi. 6. 2. 5.

A person who had attained the age of puberty was not obliged to have a curator; but, practically, he was almost sure, if he had much property, to apply for one, as it was part of his tutor's duty to urge him to do so (D. xxvi. 7. 5. 5), and he could not, at the age of fourteen, be fit to manage his own affairs. There were two other cases, besides that mentioned in the text, in which a curator was given against the will of the adolescent for whom he was appointed. When a debtor wished to pay a debt owed to the adolescent (D. iv. 4. 72), or the tutor to settle his accounts with him (C. v. 31. 7), a curator was appointed to watch the interests of the adolescent, and thus to make the payment and settlement indisputably valid; for if the adolescent was left to himself, the prætor might, on suspicion of fraud, order a restitutio in integrum. The curator, once appointed, held his office until the adolescent attained the age of twenty-five, and the minor could not alienate, and, perhaps, could not contract, without the sanction of his curator; but if an adolescent who had a curator was thought capable of managing his affairs, he might, by the special grant of the emperor, have a dispensation (venia ætatis) from waiting for the full age; but it was requisite, to obtain this, that a man should be twenty, and a woman eighteen years of age. (D. iv. 4. 3; C. ii. 45.)

3. Furiosi quoque et prodigi, licet majores viginti quinque annis sint, tamen in curatione sunt adgnatorum ex lege duodecim tabularum. Sed solent Romæ præfectus urbis vel

3. Madmen and prodigals, although past the age of twenty-five, are yet placed under the curatorship of their agnati by the law of the Twelve Tables. But, ordinarily, curators are appointed