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DE TVTELIS. - Gaius, Institutes of Roman Law [160 AD]
Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).
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§ 142. Transeamus nunc ad aliam diuisionem. nam ex his personis quae neque in potestate neque in manu neque in mancipio sunt quaedam uel in tutela sunt uel in curatione, quaedam neutro iure tenentur. uideamus igitur quae in tutela quae in curatione sint; ita enim intellegemus ceteras personas quae neutro iure tenentur.
Inst. 1, 13 pr.
§ 143. Ac prius dispiciamus de his quae in tutela sunt.
Inst. l. c.
§ 144. Permissum est itaque parentibus liberis quos in potestate sua habent testamento tutores dare. masculini quidem sexus inpuberibus, 〈feminini autem sexus cuiuscumque aetatis sint, et tum quo〉que, cum nuptae sint. ueteres enim uoluerunt feminas, etiamsi perfectae aetatis sint, propter animi leuitatem in tutela esse.
Inst. 1, 13, 3.
§ 145. Itaque si quis filio filiaeque testamento tutorem dederit et ambo ad pubertatem peruenerint, filius quidem desinit habere tutorem, filia uero nihilo minus in tutela permanet; tantum enim ex lege Iulia et Papia Poppaea iure liberorum tutela liberantur feminae. loquimur autem exceptis uirginibus Vestalibus quas etiam ueteres in honorem sacerdotii liberas esse uoluerunt, itaque etiam legexii tabularum cautum est.
Inst. l. c.
§ 146. Nepotibus autem neptibusque ita demum possumus testamento tutores dare, si post mortem nostram in patris sui potestatem [iure] recasuri non sint. itaque si filius meus mortis meae tempore in potestate mea sit, nepotes ex eo non poterunt ex testamento meo habere tutorem, quamuis in potestate mea fuerint; scilicet quia mortuo me in patris sui potestate futuri sunt.
Inst. l. c.
§ 147. Cum tamen in conpluribus aliis causis postumi pro iam natis habeantur, et in hac causa placuit non minus postumis quam iam natis testamento tutores dari posse, si modo in ea causa sint, ut si uiuis nobis nascantur, in potestate nostra fiant. hos 〈enim〉 etiam heredes instituere possumus, cum extraneous postumos heredes instituere permissum non sit.
Inst. 1, 13, 4.
§ 148. 〈Vxori〉 quae in manu est proinde ac filiae, item nurui quae in filii manu est proinde ac nepti tutor dari potest.
§ 149. Rectissime autem tutor sic dari potest: l. titivm liberis meis tvtorem do. sed et si ita scriptum sit liberis meis uel vxori meae titivs tvtor esto, recte datus intellegitur.
§ 150. In persona tamen uxoris quae in manu est recepta est etiam tutoris optio, id est ut liceat ei permittere quem uelit ipsa tutorem sibi optare, hoc modo: titiae vxori meae tvtoris optionem do. quo casu licet uxori 〈tutorem optare〉 uel in omnes res uel in unam forte aut duas.
§ 151. Ceterum aut plena optio datur aut angusta.
§ 152. Plena ita dari solet, ut proxime supra diximus. angusta ita dari solet—titiae vxori meae tvtoris optionem dvmtaxat semel do, aut dvmtaxat bis do.
§ 153. Quae optiones plurimum inter se differunt. nam quae plenam optionem habet potest semel et bis et ter et saepius tutorem optare; quae uero angustam habet optionem, si dumtaxat semel data est optio, amplius quam semel optare non potest; si dumtaxat bis, amplius quam bis optandi facultatem non habet.
§ 154. Vocantur autem hi qui nominatim testamento tutores dantur datiui, qui ex optione sumuntur optiui.
§ 142. Let us now proceed to another classification: persons not subject to power, nor to hand, nor held in mancipation, may still be subject either to tutelary guardianship or to curatorship, or may be exempt from both forms of control. We will first examine what persons are subject to tutelary guardianship and curatorship, and thus we shall know who are exempt from both kinds of control.
§ 143. And first of persons subject to tutelary guardianship or tutelage.
§ 144. The law allows a parent to appoint guardians in his will for the children in his power, below the age of puberty, if they are males; whatever their age, and notwithstanding their marriage, if they are females; for, according to our ancestors, even women who have attained their majority, on account of their levity of disposition, require to be kept in tutelage.
§ 145. Accordingly, when a brother and sister have a testamentary guardian, on attaining the age of puberty the brother ceases to be a ward, but the sister continues, for it is only under the lex Julia and Papia Poppaea by title of maternity that women are emancipated from tutelage; except in the case of vestal virgins, for these, even in our ancestors’ opinion, are entitled on account of the dignity of their sacerdotal function to be free from control, and so the law of the Twelve Tables enacted.
§ 146. A grandson or grand-daughter can only receive a testamentary guardian provided the death of the testator does not bring them under parental power. Accordingly, if at the time of the grandfather’s death the father was in the grandfather’s power, the grandchildren, though in the grandfather’s power, cannot have a testamentary guardian, because his death leaves them in the power of the father.
§ 147. As in many other matters after-born children are treated on the footing of children born before the execution of the will, so it is ruled that after-born children, as well as children born before the will was made, may have guardians therein appointed, provided that if born in the testator’s lifetime they would be subject to his power [and self-successors], for such after-born children may be instituted heirs, but not afterborn strangers.
§ 148. A wife in the testator’s hand may receive a testamentary guardian as if she were a daughter, and a son’s wife in the son’s hand as if she were a granddaughter.
§ 149. The most regular form of appointing a guardian is in the following terms: ‘I appoint Lucius Titius guardian to my children’; the form, ‘Be Lucius Titius guardian to my children’—or, ‘to my wife’—is also valid.
§ 150. To a wife in his hand a testator is permitted to devise the selection of her guardian, that is, he may authorize her to choose whom she pleases, in the following terms: ‘To Titia my wife I devise the selection of her guardian’; whereupon she may nominate either a general guardian or a guardian for certain specified matters.
§ 151. The option of a guardian may be limited or unlimited.
§ 152. Unlimited option is usually devised in the form above mentioned; limited option in the following terms: ‘To Titia my wife I devise not more than one option’—or, ‘not more than two options—of a guardian.’
§ 153. The effect of these forms is very different: unlimited option is a power of choosing a guardian an indefinite number of times; limited option is the right of a single choice, or of two choices, as may happen.
§ 154. A guardian actually nominated by the will of the testator is called a dative guardian; one taken by selection (of the widow) is called an optative guardian.
Having examined those inferiorities of legal capacity which constituted a status, we now proceed to examine certain cases of incapacity of acting independently which, though analogous to the former as belonging to the sphere of unequal rights, were not included by the Romans under the denomination of status. The inferiorities of capacity in infancy, minority, tutelary wardship, curatel, were different in character and not so considerable as those which we have hitherto examined. The diminution of rights in a lapse from independence to curatel was less than the least capitis minutio, and accordingly a prodigal who was interdicted from the administration of his estate and subjected to the control of a curator, was not said to undergo a status mutatio: his patrimony still vested in him, though he was deprived of its administration; whereas adrogatio and in manum conventio divested a person of the capacity of ownership and active obligation: inferior status, in a word, is incapacity of right; wardship and curatel are only incapacities of disposition.
Guardianship is thus defined: Est autem tutela, ut Servius definit, jus ac potestas in capite libero, ad tuendum eum qui propter aetatem se defendere nequit, jure civili data ac permissa, Inst. 1, 13, 1. ‘Guardianship is a right and power over an independent person conferred or authorized by the Civil law for the protection of one who is incapacitated by age for self-defence.’ The duties of the guardian related both to the person and to the property of the ward. In respect of his person, the guardian was charged with the care of his nurture and education: in respect of his property, the guardian’s function was distinguished as either exclusive administration or concurrent interposition of authority (rem gerere et auctoritatem interponere). Up to the age of seven the ward was called infans, 3 § 109, and during this period the guardian acted alone (administratio, negotiorum gestio); after the completion of seven years until the age of puberty (fourteen for males, as the time was ultimately fixed, twelve for females) the ward acted, and the guardian concurrently gave his sanction (auctoritas). The sanction of the guardian was a legal act of a highly formal character (actus legitimus), by which such legal acts of his ward, as would otherwise have been imperfect, obtained validity. Accordingly the guardian could not give his sanction by letter or through an agent, but had to be present himself for the purpose at the time when the act of the ward was executed, so that he might be a subsidiary party to it. Inst. 1, 21, 2 Tutor autem statim in ipso negotio praesens debet auctor fieri, si hoc pupillo prodesse existimaverit. post tempus vero aut per epistulam interposita auctoritas nihil agit.
The sanction of the guardian was necessary whenever the act of the ward was one which might possibly entail loss, but not otherwise. Cf. 2 §§ 80-85, Inst. l. c. pr. and 1 Auctoritas autem tutoris in quibusdam causis necessaria pupillis est, in quibusdam non est necessaria. ut ecce si quid dari sibi stipulentur, non est necessaria tutoris auctoritas: quod si aliis pupilli promittant, necessaria est: namque placuit meliorem quidem suam condicionem licere eis facere etiam sine tutoris auctoritate, deteriorem autem non aliter quam tutore auctore. unde in his causis, ex quibus mutuae obligationes nascuntur, in emptionibus venditionibus, . . . si tutoris auctoritas non interveniat, ipsi quidem, qui cum his contrahunt, obligantur, at invicem pupilli non obligantur In respect of administration of property the guardian incurred a quasi-contractual obligation, and was accordingly liable to the judicium or actio tutelae.
In the time of Gaius, women continued subject to guardianship after the age of puberty: the functions of the guardian were in their case confined to auctoritas, which in most cases was a mere formality; the power of administration vested in the woman, § 190.
§ 147. For an account of the different classes of Postumi see 2 § 130, comm.
§ 148. In filii manu must be regarded as an inaccurate expression: for filiusfamilias was incapable of all civil rights, including manus, and could only serve as a conduit-pipe by which the right of manus vested in his father.
§ 154. In the Code and Digest of Justinian the term tutor dativus is used to signify a guardian appointed by a magistrate. Cod. 5, 50, 5; Dig. 46, 6, 7.
DE LEGITIMA AGNATORVM TVTELA.
§ 155. Quibus testamento quidem tutor datus non sit, iis ex lege xii 〈tabularum〉 agnati sunt tutores, qui uocantur legitimi.
Inst. 1, 15 pr.
§ 156. Sunt autem agnati per uirilis sexus personas cognatione iuncti, quasi a patre cognati, ueluti frater eodem patre natus, fratris filius neposue ex eo, item patruus et patrui filius et nepos ex eo. at hi qui per feminini sexus personas cognatione coniunguntur non sunt agnati, sed alias naturali iure cognati. itaque inter auunculum et sororis filium non agnatio est, sed cognatio. item amitae, materterae filius non est mihi agnatus, sed cognatus, et inuicem scilicet ego illi eodem iure coniungor, quia qui nascuntur patris, non matris familiam secuntur.
Inst. 1, 15, 1.
§ 157.Et olim quidem, quantum ad legem xii tabularum attinet, etiam feminae agnatos habebant tutores. sed postea lex Claudia lata est quae, quod ad feminas attinet, 〈agnatorum〉 tutelas sustulit; itaque masculus quidem inpubes fratrem puberem aut patruum habet tutorem, femina uero talem habere tutorem non potest.
§ 158. Sed agnationis quidem ius capitis deminutione perimitur, cognationis uero ius eo modo non commutatur, quia ciuilis ratio ciuilia quidem iura corrumpere potest, naturalia uero non potest.
Inst. 1, 15, 3.
DE LEGITIMA AGNATORVM TVTELA.
§ 155. In default of a testamentary guardian the statute of the Twelve Tables assigns the guardianship to the nearest agnates, who are hence called statutory guardians.
§ 156. Agnates (3 § 10) are persons related through males, that is, through their male ascendents: as a brother by the same father, such brother’s son or son’s son; a father’s brother, his son or son’s son. Persons related through female ascendents are not agnates but simply cognates. Thus, between an uncle and his sister’s son there is not agnation, but cognation: so the son of my aunt, whether she is my father’s sister, or my mother’s sister, is not my agnate, but my cognate, and vice versa; for children are members of their father’s family, not of their mother’s.
§ 157. In former times, the statute of the Twelve Tables made females as well as males wards of their agnates: subsequently a law of the Emperor Claudius abolished this wardship in the case of females: accordingly, a male below the age of puberty has his brother above the age of puberty or his paternal uncle for guardian, but a female cannot have such a guardian.
§ 158.Capitis deminutio extinguishes rights by agnation, while it leaves unaffected rights by cognation, because civil changes can take away rights belonging to civil law (jus civile), but not rights belonging to natural law (jus naturale).
§ 156. As to this definition of agnati see Moyle’s note to Inst. 1, 15, 1. The maxim here enunciated is calculated to give a false idea of the relation of the institutes of jus gentium to those of jus civile. Title by cognation is just as much an institute of positive law as title by agnation, though cognation, or blood-relationship, is in itself a natural and permanent tie, while agnation is an artificial one, and therefore only occasional. The synthesis of title and right in jus civile may be freakish and capricious, while that in jus gentium may be reasonable and expedient; but both are equally positive institutions, and both are equally mutable and liable to be overruled. Accordingly, the specious-sounding maxim, that revolutions in status or civil condition cannot affect such rights as are annexed to natural titles, crumbles away as soon as we examine it, for we find that it only holds good of the most insignificant change, the minima capitis minutio, 3 § 27, and that maxima and media capitis minutio extinguish title by cognation, which belongs to jus gentium, as well as title by agnation, which belongs to jus civile. Inst. 1, 16, 6.
The truth is, that the effects of a collision of Civil and Natural law fall under two very different classes, which it is important to distinguish.
1. If the command of the civil lawgiver, under the sway of motives financial, political, ethical, or religious, is highly imperious and absolutely compulsive, all natural titles with which it may come in conflict are absolutely void and inoperative: e. g. the Sc. Velleianum, prohibiting suretyship of women, allowed no naturalis obligatio to be produced by any such suretyship: and so with the laws prohibiting gambling and usury.
2. If the command of the civil law is less peremptory and absolute, it may deprive any conflicting natural title of plenary force, and yet leave to it a naturalis obligatio capable of acquiring efficacy by some machinery of positive law; e. g. the Sc. Macedonianum, prohibiting money loans to a filiusfamilias without the sanction of his father, made them irrecoverable by action, and yet the courts recognized in the borrowing filiusfamilias a naturalis obligatio, which was capable of novation, Dig. 46, 2, 19, and a bar to recovery back (condictio indebiti) in case of actual repayment, Dig. 14, 6, 10.
When Justinian consolidated the law of intestate succession and made the right of succession depend on cognation instead of agnation, he made a corresponding change in the obligation of guardianship, which henceforth devolved on cognates instead of agnates, women as formerly, with the exception of mothers and grandmothers, being excluded from the office, Nov. 118, 5.
DE CAPITIS MINVTIONE.
§ 159. Est autem capitis deminutio prioris status permutatio. eaque tribus modis accidit: nam aut maxima est capitis deminutio, aut minor quam quidam mediam uocant, aut minima.
Inst. 1, 16 pr.
§ 160. Maxima est capitis deminutio, cum aliquis simul et ciuitatem et libertatem amittit; quae accidit incensis, qui ex forma censuali uenire iubentur; quod ius p—|—NA ex lege —|—NA qui contra eam legem in urbe Roma do|micilium habuerint; item feminae quae ex senatusconsulto Claudiano ancillae fiunt eorum dominorum quibus inuitis et denuntiantibus cum seruis eorum coierint.
Inst. 1, 16, 1.
§ 161. Minor siue media est capitis deminutio, cum ciuitas amittitur, libertas retinetur; quod accidit ei cui aqua et igni interdictum fuerit.
Inst. 1, 16, 2.
§ 162. Minima est capitis deminutio, cum et ciuitas et libertas retinetur, sed status hominis commutatur; quod accidit in his qui adoptantur, item in his quae coemptionem faciunt, et in his qui mancipio dantur quique ex mancipatione manumittuntur; adeo quidem, ut quotiens quisque mancipetur aut manumittatur, totiens capite deminuatur.
Inst. 1, 16, 3.
§ 163. Nec solum maioribus 〈capitis〉 deminutionibus ius agnationis corrumpitur, sed etiam minima; et ideo si ex duobus liberis alterum pater emancipauerit, post obitum eius neuter alteri agnationis iure tutor esse poterit.
§ 164. Cum autem ad agnatos tutela pertineat, non simul ad omnes pertinet, sed ad eos tantum qui proximo gradu sunt.
DE CAPITIS MINVTIONE.
§ 159.Capitis deminutio is a change of a former status which occurs in three ways, i. e. it is either greatest, minor or mediate, or least.
§ 160. The greatest capitis deminutio is the simultaneous loss of citizenship and freedom, which happens to those who having evaded inscription on the censorial register are sold into slavery according to the regulations of the census, also under the — law when persons in violation of it make Rome their place of residence, and also under the Sc. Claudianum in case of persistent intercourse on the part of a free woman with another person’s slave in spite of the dissent and denunciation of the owner.
§ 161. Minor or intermediate loss of status is loss of citizenship unaccompanied by loss of liberty, and is incident to interdiction of fire and water.
§ 162. There is the least capitis deminutio retaining citizenship and freedom when a man’s position in the family only is changed, which occurs in adoption, coemption, and in the case of those given in mancipium to be afterwards manumitted, so that after each successive mancipation and manumission a capitis deminutio takes place.
§ 163. Not only by the two greater losses of status are rights of agnation extinguished, but also by the least: accordingly, if one of two children is emancipated, the elder cannot on the father’s decease be guardian to the younger by right of agnation.
§ 164. When agnates are entitled to be guardians, it is not all who are so entitled, but only those of the nearest degree.
§ 160. Ulpian also refers to the penalty incurred by incensi (11, 11 cum incensus aliquis venierit; cf. Cic. Pro Caec. 34, 99). The lex, the name of which is now illegible, may possibly be the lex Aelia Sentia, which by one of its provisions recalled into slavery dediticii, who resided in Rome or within a certain distance from it (§ 27), though there is the difficulty that it would be inaccurate to speak of such freedmen suffering loss of citizenship as well as liberty. Other grounds of reducing to slavery existed at various times, as surrender by the pater patratus to a foreign state for an offence against international law, Livy, 5, 36, or evasion of military service (populus quum eum vendidit qui miles factus non est, Cic. Pro Caec. 34, 11; Ulp. 11, 11), or capture by the enemy, § 129, or condemnation for a capital crime, which made the convict a slave of punishment (servus poenae, Inst. 1, 16, 1), i. e. reduced him to penal servitude, or condemnation of a freedman for ingratitude towards his patron (libertus ingratus circa patronum condemnatus, ibid.) whereupon he forfeited his freedom, or collusion of a freeman in consenting to be sold as a slave on condition of sharing the purchase-money (cum liber homo, major viginti annis, ad pretium participandum sese venundari passus est, Inst. 1, 3, 4). After the price had been paid, the vendor disappeared, the supposed slave recovered his liberty by a liberalis causa, and the purchaser was left without his slave and without his money. The praetor, to check this fraud, allowed the purchaser to defend himself by exceptio doli, and senatusconsulta subsequently enacted, that if the person sold was twenty years old at the time of the sale or partition of the price, he should really become the slave of the purchaser, Dig. 40, 12, 7 pr. 1.
The libertus ingratus would exemplify a fall from the condition of libertinus to that of servus; any of the other instances might be a case of a fall from ingenuus to servus; the fall from ingenuus to libertinus would also be an analogous kind of degradation. Thus by the Sc. Claudianum a freewoman (ingenua) who had commerce with a slave with the consent of his proprietor procreated slaves without forfeiting her own freedom, § 84; she lost status, however, for she became the freedwoman of the proprietor, Paulus, 4, 10, 2; Tac. Ann. 12, 53.
§ 161. Under the category of Civitas, as there are three classes, civis, latinus, peregrinus, so there are three possible degradations, the fall from civis to Latinus, instanced in the emigrant to a Latin colony, § 131; the fall from civis to peregrinus, instanced in the interdiction or deportation of a civis; and the fall from Latinus to peregrinus, instanced when the same events happened to Latinus. A lapse from liber to servus was a dissolution of marriage, for servus was incapable of matrimony: a lapse from civis to Latinus or peregrinus was a dissolution of civil wedlock (connubium), for this could only subsist between cives; but if both parties consented, they might continue in gentile wedlock (matrimonium), Cod. 5, 17, 1. The confiscation of property or universal succession of the fiscus, which accompanied greatest and minor loss of status, was not an incident of the latter kind of capitis minutio (e.g. it did not happen when civis became Latinus by emigration; and an alien, as a citizen became by deportation, was capable of holding property), but was a special provision of the criminal code. (For an account of the different Roman forms of banishment see Mommsen, Rom. Strafr. 5, pt. 7.)
The political elements of civitas, suffragium and honores, were forfeited by infamy (infamia) or loss of civic honour (existimatio); and hence arises the question whether infamia is to be regarded as a capitis minutio (see, on this subject, Greenidge, Infamia).
Austin, in laying the bases of jurisprudence, has referred to the law of honour to illustrate the difference of positive law from all law not positive; but in Rome the law of honour, as the law of religion in most modern states, was partially taken up into positive legislation. The public sentiments of esteem and disesteem, that is to say, were armed with political sanctions, and thus certain proceedings were discouraged which were not otherwise prohibited by positive law, and the due application of these sanctions was the function of a special organ appointed by the legislator. This organ was the censor, who had both a discretionary power of branding a man with ignominy by an annotation against his name in the civic register (notatio, subscriptio censoria), and, as revisor of the lists of the senate, the knights, and the tribes, enforced the disabilities of infamy by removing the infamous person from any of those bodies. As the Comitia Centuriata, as well as the Comitia Tributa, had in later times been connected with the division into tribes, the tribeless man (aerarius) forfeited his vote and became incapable of military service, Livy, 7, 2. These graver consequences of infamy were not in the discretion of the censor, but governed by strict rules of consuetudinary law (jus moribus introductum). The law of infamia, as established by the censor, came to be also recognized by the praetor in his edict (cf. Dig. 3, 1, 1, 8 Qui edicto praetoris ut infames notantur), who made infamy not only a consequence of condemnation in any criminal trial (publicum judicium), but also of condemnation in certain civil actions founded on delict, such as theft, rapine, outrage, fraud; or on certain contracts, such as partnership, agency (mandatum), deposit; or on quasi contract, such as guardianship; or of insolvency (bona possessa, proscripta, vendita); or, without any judicial condemnation, was annexed to certain violations of the marriage laws, such as bigamy or the marriage of a widow before the termination of her year of mourning, and to the pursuit of certain professions, such as that of stage-player or gladiator. In some of these latter instances consuetudinary law, as above intimated, inflicted positive sanctions on acts that originally had only been prohibited by the law of honour. In view of these consequences, infamia may at one time have been regarded as capitis minutio. Cicero pro Quinctio speaks of a suit involving existimatio as a causa capitis (cf. pro Rosc. Com. 6), and Tertullian, the father of the Church, who was noted for his knowledge of Roman law, and possibly was identical with the jurist of that name, of whom five fragments are preserved in the Digest, speaks of infamia as capitis minutio, De Spectaculis, 22, Scenicos manifeste damnant ignominia et capitis deminutio. But the political rights of civitas had ceased to be of importance under the emperors, and we are expressly told in the Digest that only death or loss of citizenship can be understood to affect a man’s caput, Modestinus in Dig. 50, 16, 103.
Besides extinguishing the political or public elements of civitas, infamia affected to a certain extent its private elements, both commercium and connubium; the former, as we shall see, in respect of the office of cognitor, 4 § 124 (cf. Dig. 3, 1, de postulando), and the latter in respect of the disabilities of celibacy under the lex Julia, which were not removed by marriage with an infamis. Both these classes of disability had practically vanished even before they were abolished in the time of Justinian.
This seems the proper place to notice certain inequalities of condition, analogous to the old distinctions of status, which grew up subsequently to the time of Gaius in the later ages of Rome, and some of which survived the fall of the Roman empire. From the establishment of the empire the army was caressed by each succeeding despot, and privileges of various kinds were so accumulated on the military service, that the relation of the soldiery to the rest of the world very much resembled the ancient relation of Romanus to peregrinus. The pre-eminence of the military caste was the result of elevation; other unprivileged castes were created by depression. As the new religion grew to political power, zealous legislators were eager to promote its ascendency by the means of political sanctions. Pagans, Jews, heretics, apostates, protestants, papists, were successively frowned upon by the legislator, and for a long season subjected to incapacities and disabilities as great as, or greater than, those which weighed upon infames: until by a change in political conceptions these inequalities of right have been again levelled and almost obliterated in most of the codes of modern Europe. See also the remarks on Colonatus, 3 § 145.
§ 162. In the category of domestic position there are three classes, (1) sui juris, or paterfamilias and materfamilias; (2) filiusfamilias and filiafamilias; and (3) mancipium: but there are only two possible degradations, (1) from sui juris to alieni juris, which occurs in adrogation and the in manum conventio of a woman previously independent; and (2) from filius- or filiafamilias to mancipium, which occurs in noxal surrender, in emancipation, in adoption as implying mancipation, and in the remancipation of a woman by her husband or the person who held her in manu in virtue of a fiduciary coemption. The descent from sui juris to mancipium cannot occur, because the only persons capable of passing into the condition of mancipium by the process of mancipation were filius- and filiafamilias and women in manu, i. e. persons already alieni juris.
In the exposition of capitis minutio, and particularly of the third and last kind, I have adopted the theory of Savigny as being the most tenable, and forming the most harmonious system of legal conceptions. I must now briefly notice an opposing theory, and the objections that may be raised against that of Savigny. Some expositors hold that capitis minutio minima did not necessarily and essentially involve any degradation, any downward step on the ladder of status, but might be merely a horizontal movement on the same platform, a transit from family to family, a disruption of the ties of agnation, a cessation of membership in a given civil group. (See on this subject Dr. Moyle’s Excursus, Inst. Bk. 1, and Professor Goudy’s App. to Muirhead’s Roman Law, second ed., p. 426, where Mommsen’s explanation is given.) This opinion is founded on the authority of Paulus, undeniably an eminent juris auctor, who defines the least diminution of head as follows: Dig. 4, 5, 11. ‘Capital diminution is of three orders, greatest, minor, least; as there are three things that we have, liberty, citizenship, family. The universal loss of freedom, citizenship, family, is the greatest capital diminution; loss of citizenship while liberty is retained is minor capital diminution; when liberty and citizenship are retained, and family only is changed, there is the least capital diminution.’ Consistently with this definition Paulus affirms that the children of adrogatus suffer capitis minutio minima: Dig. 4, 5, 3 pr. ‘The children who follow an adrogated parent suffer capital diminution, as they are dependent and have changed family’: here, then, if Paulus is right, we have capitis minutio without any degradation, any loss of rank; for the children of adrogatus have the same status of filiifamilias after their father’s adrogation as they had before, although in a different family. The proposition, however, that the children of adrogatus suffer capitis minutio is not confirmed by any other jurist, and Savigny supposes that the doctrine was peculiar to Paulus, and was in fact inaccurate. Another objection to the theory of Savigny, though not so serious as the opposing authority of Paulus, is presented by the operation of in manum conventio.
When an independent woman made a coemption she undoubtedly declined in status, as before coemption she was sui juris, and after coemption she is filiafamilias. But a filiafamilias who made a coemption apparently suffered no degradation: the definitive result of the coemption leaves her, as before, filiafamilias, and that, apparently, without having passed through any lower stage; for Gaius expressly says that the lex mancipii, or formula of mancipation in coemption, was not calculated to reduce the woman to a servile condition, § 123. Gaius tells us, however, that coemption operates a capitis minutio, § 162, without limiting the effect to the case of a woman sui juris. The operation of coemption to produce capitis minutio is also mentioned by Ulpian, and again without any express limitation to the case of an independent woman: 11, 13. ‘There is least capital diminution when both citizenship and freedom are unimpaired, and only position in household life is changed, as occurs in adoption and subjection to hand.’ If filiafamilias underwent capitis minutio when she made a coemption, her case disproves our theory that all capitis minutio requires degradation: but Savigny assumes that, though in these passages there is no express limitation to the case of independent women, yet this limitation must be understood; and there is nothing outrageous in this supposition.
While, however, these objections to the hypothesis of Savigny are doubtless serious, on the other hand they are compensated by legal facts which seem absolutely irreconcilable with the adverse hypothesis, the cases of Flamen Dialis and Virgo Vestalis. Gellius, 1, 12. ‘As soon as a vestal virgin is selected and conducted to the shrine of Vesta and delivered to the pontifices, she instantaneously, without emancipation and without capital diminution, is freed from parental power and acquires testamentary capacity. . . . . Moreover, in the commentary of Labeo on the Twelve Tables it is stated that a vestal virgin is neither heiress-at-law to any one who dies intestate nor, if she herself die intestate, leaves any heir-at-law, and that in this event her property lapses to the state.’ For Flamen Dialis, see 3 § 114. If mere transit from a family and ceasing to belong to a given group of agnates constituted capitis minutio, and was its definition, then the vestal virgin must inevitably have suffered capitis minutio; the fact that she did not, in spite of leaving her family and snapping the agnatic tie, is at once conceivable, on the supposition that there is no capitis minutio without degradation.
Unless capitis minutio minima involved a downward step on the stair of status, it has no analogy to the other forms of capitis minutio, and it is not obvious why it should have the same generic appellation, or why it should be handled in the same department of the code. The rupture of the ties of agnation, extinguishing rights of intestate succession, might be a loss, but it was not a loss from inferiority of privilege; it was a loss of an equal among equals; it was more like the loss of dos which a husband might incur by divorce of his wife, or an heir by neglecting to accept a succession within the appointed period (cretio), 2 § 164; neither of which persons were said to undergo capitis minutio, because neither of them suffered a reduction of the universitas juris called status.
On the whole, then, Savigny seems justified in considering the definition given by Paulus and his statement respecting the children of adrogatus as inexact. Paulus himself, in speaking of emancipation, implies the true conditions of capitis minutio: Dig. 4, 5, 3 Emancipato filio et ceteris personis capitis minutio manifesto accidit, cum emancipari nemo possit nisi in imaginariam servilem causam deductus; aliter atque cum servus manumittitur, quia servile caput nullum jus habet ideoque nec minui potest.
Although rupture of the ties, and forfeiture of the rights, or release from the duties, of agnation, were not the essence of capitis minutio minima, yet they were among its principal consequences. The capite minutus lost his claim as suus heres at civil law, that is, his right to succeed to an intestate ascendent, or to be instituted heir in his will or formally disinherited. These effects of capitis minutio were, however, counteracted to some extent by jus praetorium or the legislation of the praetor (bonorum possessio unde liberi: and contra tabulas). He also lost his right as legitimus heres at civil law, that is, his right to succeed as nearest agnate to an intestate collateral; and here the praetor only so far interposed to assist the capite minutus, as, in default of all persons entitled as nearest agnates, to call him to the succession in the inferior order of cognates (bonorum possessio unde cognati). The collateral civil heir was called legitimus heres (statutory heir) because his title was founded on the statutes of the Twelve Tables, which, in default of self-successors, called the nearest collateral agnates to the succession. Subsequent statutes created certain quasi agnates or persons entitled to succeed in the same order as if they were agnates, who hence were also called legitimi heredes; e. g. children entitled to succeed to an intestate mother under the Sc. Orphitianum, and mothers entitled to succeed to intestate children under the Sc. Tertullianum. The effect of capitis minutio in extinguishing title to succeed was confined to legitimus heres created by the Twelve Tables, and did not extend to the legitimus heres created by these subsequent statutes.
Besides the effects of capitis minutio which followed logically from its consisting in a degradation or fall in status, and from its involving elimination from a given family or a certain circle of agnates, it had certain other abnormal or arbitrary consequences—consequences, that is, which may have once been explicable on known maxims of the civil law, but which are now inexplicable, whose rationale had perhaps been lost even in the classical period, and is certainly now past conjecture. Such is the rule, that capitis minutio minima of an independent person extinguished the debts of capite minutus. It is true that the injustice operated by this rule of civil law in the case of adrogatio was counteracted by the interposition of the praetor, but, as at civil law filiusfamilias, though incapable of rights, was capable of obligations, it is not obvious why even at civil law a man’s debts should have been cancelled by his degradation from the status of paterfamilias to that of filiusfamilias. 3 § 84, comm.; 4 § 38.
DE LEGITIMA PATRONORVM TVTELA.
§ 164 a.
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§ 165. Ex eadem lege xii tabularum libertarum et inpuberum libertorum tutela ad patronos liberosque eorum pertinet. quae et ipsa tutela legitima uocatur, non quia nominatim ea lege de hac tutela cauetur, sed quia proinde accepta est per interpretationem, atque si uerbis legis introducta esset. eo enim ipso, quod hereditates libertorum libertarumque, si intestati decessissent, iusserat lex ad patronos liberosue eorum pertinere, crediderunt ueteres uoluisse legem etiam tutelas ad eos pertinere, quia et agnatos, quos ad hereditatem uocauit, eosdem et tutores esse iusserat.
Inst. 1, 17 pr.
§ 166. Exemplo patronorum receptae 〈sunt et aliae tutelae, quae et ipsae legitimae uocantur. nam si quis filium nepotemue ex filio et deinceps inpuberes, aut filiam neptemue ex filio et deinceps tam puberes quam inpuberes alteri ea lege mancipio dederit, ut sibi remanciparentur, remancipatosque manumiserit, legitimus eorum tutor erit.〉
Inst. 1, 18.
§ 166 a. [de fidvciaria tvtela.] Sunt et aliae tutelae, quae fiduciariae uocantur, id est quae ideo nobis conpetunt, quia liberum caput mancipatum nobis uel a parente uel a coemptionatore manumiserimus.
Inst. 1, 19.
§ 167. Sed Latinarum et Latinorum inpuberum tutela non omni modo ad manumissores eorum pertinet, sed ad eos quorum ante manumissionem 〈ex iure Quiritium fuerunt; unde si ancilla〉 ex iure Quiritium tua sit, in bonis mea, a me quidem solo, non etiam a te manumissa, Latina fieri potest, et bona eius ad me pertinent, sed eius tutela tibi conpetit; nam ita lege Iunia cauetur; itaque si ab eo, cuius et in bonis et ex iure Quiritium ancilla fuerit, facta sit Latina, ad eundem et bona et tutela pertinent.
DE CESSICIA TVTELA.
§ 168. Agnatis et patronis et liberorum capitum manumissoribus permissum est feminarum tutelam alii in iure cedere; pupillorum autem tutelam non est permissum cedere, quia non uidetur onerosa, cum tempore pubertatis finiatur.
§ 169. Is autem, cui ceditur tutela, cessicius tutor uocatur.
§ 170. Quo mortuo aut capite deminuto reuertitur ad eum tutorem tutela qui cessit; ipse quoque qui cessit si mortuus aut capite deminutus sit, a cessicio tutela discedit et reuertitur ad eum, qui post eum qui cesserat secundum gradum in ea tutela habuerit.
§ 171. Sed quantum ad agnatos pertinet, nihil hoc tempore de cessicia tutela quaeritur, cum agnatorum tutulae in feminis lege Claudia sublatae sint.
§ 172. Sed fiduciarios quoque quidam putauerunt cedendae tutelae ius non habere, cum ipsi se oneri subiecerint. quod etsi placeat, in parente tamen, qui filiam neptemue aut proneptem alteri ea lege mancipio dedit, ut sibi remanciparetur, remancipatamque manumisit, idem dici non debet, cum is et legitimus tutor habeatur, et non minus huic quam patronis honor praestandus sit.
DE LEGITIMA PATRONORVM TVTELA.
§ 165. The same statute of the Twelve Tables assigns the guardianship of freedwomen and of freedmen below the age of puberty to the patron and the patron’s children, and this guardianship, like that of agnates, is called statutory guardianship, not that it is anywhere expressly enacted in the Twelve Tables, but because the interpretation has procured for it as much reception as it would have obtained from express enactment; for the fact that the statute gave the succession of a freedman or freedwoman, when they die intestate, to the patron and patron’s children, was deemed by the lawyers of the republic (veteres) a proof that it intended to give them the guardianship also, because the Tables, when they call agnates to succeed to the inheritance, likewise confer on them the guardianship.
§ 166. The analogy of the patron guardian led in its turn to the establishment of other guardianships also called statutory. Thus when a person mancipates to another, on condition of remancipation to himself, either a son or grandson through a son, who are below the age of puberty, or a daughter or granddaughter through a son of whatever age they may be, he becomes their statutory guardian when he manumits them after remancipation.
§ 166 a.Concerning Fiduciary Guardianship.
But there are other kinds of guardianship, called fiduciary, which arise when a free person has been mancipated by his parent or coemptionator to an alienee and manumitted by the latter.
§ 167. The guardianship of Latins, male or female, below the age of puberty, does not necessarily belong to their manumitter, but on whoever before manumission was their quiritary owner. Accordingly, a female slave belonging to you as quiritary owner, to me as bonitary owner, if manumitted by me without your joining in the manumission, becomes a Latin, and her property belongs to me, but her guardianship to you, by the enactment of the lex Junia. If the slave is made a Latin by one who combines the character of bonitary and quiritary owner, both her effects, and the guardianship of her, belong to one and the same person.
DE CESSICIA TVTELA.
§ 168. Statutory guardians, whether agnates or patrons, and manumitters of free persons, are permitted to transfer the guardianship of a female ward by surrender before a magistrate; the guardianship of a male ward is not allowed to be transferred, because it is not considered onerous, being terminated by the ward’s attaining the age of puberty.
§ 169. The surrenderee of a guardianship is called a cessionary guardian.
§ 170. On his death or loss of status the guardianship reverts to the surrenderor, and on the surrenderor’s death or loss of status it is devested from the cessionary and reverts to the person entitled after the surrenderor.
§ 171. As far, however, as agnates are concerned, in the present day there is no such thing as cessionary guardianship, for agnatic guardianship over female wards was abolished by the lex Claudia.
§ 172. Fiduciary guardians, according to some, are also disabled from transferring their guardianship, having voluntarily undertaken the burden; but although this is the better opinion, yet a parent who has mancipated a daughter, granddaughter, or great-granddaughter, with a condition of remancipation to himself, and manumitted her after remancipation, should be excepted from the rule, for he is ranked with statutory guardians, and has the same privilege as the patron of a manumitted slave.
§ 164 a. As in default of agnates the inheritance by the law of the Twelve Tables devolved on the gens it may be inferred by the reasoning adopted in § 165 that the guardianship passed to it also. So it is probable that at the beginning of the lacuna Gaius made mention of the statutory guardianship of the Gentiles, and that this is the passage on the subject referred to in 3, 17. As to the nature of the gens, see Introduction.
§ 166 a. Cf. §§ 115, 175, 195 a.
§ 167. It seems anomalous that a Latin, i.e. a non-civis, should have been a subject of wardship: for as tutela is an institute of jus civile (§§ 142, comm., 189), i.e. jus civium, we should have expected that, as in the case of patria potestas, both pater and filius must be cives Romani, § 128, so here both parties, the ward as well as the guardian, must of necessity be cives Romani. The anomaly, however, was expressly enacted by the lex Junia: which further departed from the law of the Twelve Tables by separating the guardianship from the right of succession; for it gave the guardianship to the person who before the manumission had been quiritary owner, but the right of succession to the person who had previously been bonitary owner. Latinus was not only capable of being a ward, but also of being a guardian, Fragmenta Vaticana, 193; that is, though he was incapable of being a testamentary guardian, § 23, he could, it would seem, be made a tutor dativus, that is, appointed by a magistrate, § 185.
§ 168. In later Roman law, when the interest of the ward and not that of the agnates was principally regarded, guardianship became inalienable. Similarly in English jurisprudence guardianship is said not to be capable of assignment or transfer, because it is not a right but a duty.
DE PETENDO ALIO TVTORE.
§ 173. Praeterea senatusconsulto mulieribus permissum est in absentis tutoris locum alium petere; quo petito prior desinit; nec interest quam longe absit is tutor.
§ 174. Sed excipitur, ne in absentis patroni locum liceat libertae tutorem petere.
§ 175. Patroni autem loco habemus etiam parentem, qui ex eo, quod ipse sibi remancipatam filiam neptemue aut proneptem manumisit, legitimam tutelam nactus est. 〈sed〉 huius quidem liberi fiduciarii tutoris loco numerantur; patroni autem liberi eandem tutelam adipiscuntur, quam et pater eorum habuit.
§ 176. Sed aliquando etiam in patroni absentis locum permittitur tutorem petere, ueluti ad hereditatem adeundam.
§ 177. Idem senatus censuit et in persona pupilli patroni filii.
§ 178. Nam et lege Iulia de maritandis ordinibus ei, quae in legitima tutela pupilli sit, permittitur dotis constituendae gratia a praetore urbano tutorem petere.
§ 179. Sane patroni filius etiamsi inpubes sit, libertae efficietur tutor, quamquam in nulla re auctor fieri potest, cum ipsi nibil permissum sit sine tutoris auctoritate agere.
§ 180. Item si qua in tutela legitima furiosi aut muti sit, permittitur ei senatusconsulto dotis constituendae gratia tutorem petere.
§ 181. Quibus casibus saluam manere tutelam patrono patronique filio manifestum est.
§ 182. Praeterea senatus censuit, ut si tutor pupilli pupillaeue suspectus a tutela remotus sit, siue ex iusta causa fuerit excusatus, in locum eius alius tutor detur, quo facto prior tutor amittit tutelam.
§ 183. Haec omnia similiter et Romae et in prouinciis obseruantur, scilicet 〈ut Romae a praetore〉 et in prouinciis a praeside prouinciae tutor peti debeat.
§ 184. Olim cum legis actiones in usu erant, etiam ex illa causa tutor dabatur, si inter tutorem et mulierem pupillumue lege agendum erat; nam quia ipse tutor in re sua auctor esse non poterat, alius dabatur, quo auctore legis actio perageretur; qui dicebatur praetorius tutor, quia a praetore urbano dabatur. sed post sublatas legis actiones quidam putant hanc speciem dandi tutoris in usu esse desiisse, aliis autem placet adhuc in usu esse, si legitimo iudicio agatur.
Ulp. 11, 24; Inst. 1, 21, 3.
DE PETENDO ALIO TVTORE.
§ 173. Moreover, a decree of the senate permits female wards to demand a substitute in the place of an absent guardian, who is thus superseded: and the distance of his residence from her domicil [provided it amounts to absence] is immaterial.
§ 174. But an exception is made in favour of an absent patron, who cannot be superseded on the application of a freedwoman.
§ 175. Ranked with patrons is the parent who by mancipation, remancipation, and manumission of a daughter, granddaughter, or great-granddaughter, has become her statutory guardian. His sons only rank as fiduciary guardians, unlike a patron’s sons, who succeed to the same form of guardianship as vested in their father.
§ 176. For a special and limited purpose the senate permits even the place of a patron in his absence to be filled by a substitute; for instance, to authorize the acceptance of an inheritance.
§ 177. The senatusconsult gives similar permission when a patron’s son is himself a ward.
§ 178. For likewise the lex Julia, regulating the marriages of the various orders, permitted a woman whose statutory guardian was himself a ward to apply to the praetor of the city to appoint a guardian for the purpose of constituting her dower.
§ 179. For a patron’s son even before the age of puberty is a freedwoman’s guardian, although unable to authorize any proceeding, being himself disabled from acting without his guardian’s authorization.
§ 180. Also a woman whose statutory guardian is a lunatic or dumb is permitted by the senatusconsult, for the purpose of settling her dower, to apply for a substitutive guardian.
§ 181. In which cases the continued guardianship of the patron or patron’s son is undisputed.
§ 182. The senate further decreed that if the guardian of a male or female ward is suspected of misconduct and removed from office, or if he alleges valid grounds for declining to act and is relieved of his functions, a substitute shall be appointed by the magistrate, and on his appointment the office of the former guardian shall determine.
§ 183. These rules are in force both in Rome and in the provinces, but in Rome application for the appointment of a tutor must be made to the praetor; in the provinces, to the governor of the province.
§ 184. During the era of litigation by statute-process [4 § 10], another cause of appointing a substitute was the imminence of statute-process between the guardian and the woman or ward; for as the guardian could not give his authority in respect of his own suit, another guardian was appointed to authorize the proceedings in the action, who was called a praetorian guardian, because he was appointed by the praetor of the city. But some hold that since the abolition of statute-process this mode of appointing a guardian ceased to be used, others maintain that it is still the practice on the occasion of a statutory suit (4 § 103).
§ 173. Cf. Ulp. 11, 22. The name and date of this senatusconsultum cannot be ascertained.
§ 178. Gaius, as already stated, wrote a special treatise or commentary on this important law relating to marriage.
§ 179. The law was changed by Justinian, who enacted that no one could become guardian who had not attained his majority, i. e. completed twenty-five years of age, Inst. 1, 25, 13; Cod. 5, 30, 5. The fact of not having attained this age had previously been ground of excuse.
§ 182. Cf. Inst. Just. 1, 26. The actio suspecti tutoris for the removal of the guardian from his office could be maintained by any person in the interest of the ward. If removed on account of fraud the guardian was infamis, but not so if it was simply for negligence.
§ 183. The ambiguity of the Latin language leaves it doubtful whether in the foregoing paragraphs, §§ 173, 176, 180, 182, Gaius refers to one or several senatusconsults. From Dig. 26, 1, 17, however, it appears that, complura senatusconsulta facta sunt ut in locum furiosi et muti et surdi tutoris alii tutores dentur: i. e. the subject often occupied the attention of the senate. The reason was that the lex Atilia, presently mentioned, had received, after the wont of the ancient jurists, a strictly literal interpretation, and was not deemed to authorize the substitution of a guardian when the existing guardian was incapacitated.
DE ATILIANO TVTORE, ET EO QVI EX LEGE IVLIA ET TITIA DATVR.
§ 185. Si cui nullus omnino tutor sit, ei datur in urbe Roma ex lege Atilia a praetore urbano et maiore parte tribunorum plebis, qui Atilianus tutor uocatur; in prouinciis uero a praesidibus prouinciarum 〈ex〉 lege Iulia et Titia.
Inst. 1, 20 pr.
§ 186. Et ideo si cui testamento tutor sub condicione aut ex die certo datus sit, quamdiu condicio aut dies pendet, tutor dari potest; item si pure datus fuerit, quamdiu nemo heres existat, tamdiu ex his legibus tutor petendus est; qui desinit tutor esse, posteaquam aliquis ex testamento tutor esse coeperit.
Inst. 1, 20, 1.
§ 187. Ab hostibus quoque tutore capto ex his legibus tutor peti debet; qui desinit tutor esse, si is qui captus est in ciuitatem reuersus fuerit: nam reuersus recipit tutelam iure postliminii.
Inst. 1, 20, 2.
§ 188. Ex his apparet, quot sint species tutelarum. si uero quaeramus in quot genera hae species diducantur, longa erit disputatio; nam de ea re ualde ueteres dubitauerunt, nosque diligentius hunc tractatum executi sumus et in edicti interpretatione et in his libris quos ex Q. Mucio fecimus. hoc tantisper sufficit admonuisse, quod quidam quinque genera esse dixerunt, ut Q. Mucius; alii tria, ut Ser. Sulpicius; alii duo, ut Labeo; alii tot genera esse crediderunt, quot etiam species essent.
DE ATILIANO TVTORE, ET EO QVI EX LEGE IVLIA ET TITIA DATVR.
§ 185. Failing every other form of guardian, at Rome a guardian is appointed under the lex Atilia by the praetor of the city and the major part of the tribunes of the people, called an Atilian guardian: in the provinces, a guardian is appointed by the president of the province under the lex Julia and Titia.
§ 186. Accordingly, on the appointment of a testamentary guardian subject to a condition, or on an appointment which is not to commence till after a certain time, during the pendency of the condition and before the time has come, a substitute is appointed by these magistrates; also, when the appointment of a testamentary guardian is not subject to a condition, so long as no heir has entered under the will, a temporary guardian may be obtained under those statutes, whose office will determine as soon as the guardian becomes entitled under the will.
§ 187. On the hostile capture of a guardian the same statutes regulate the appointment of a substitute to continue in office until the return of the captive; for if the captive returns he recovers the guardianship in virtue of his rehabilitation.
§ 188. The foregoing statement shows the various forms of guardian: the question of the number of orders to which these forms may be reduced involves a long discussion, for it is a point on which the ancient jurists differed greatly; and as I have examined it at length, both in my interpretation of the edict and in my commentary on Quintus Mucius, for the present occasion it may suffice to observe that some, as Quintus Mucius, make five orders; others, as Servius Sulpicius, three; others, as Labeo, two; others make as many orders as there are forms of guardian.
§ 188. In the time of Justinian there were three forms of guardian,—testamentary, or appointed by will; statutory, or prescribed by the law in case of intestacy; and magisterial (dativus), or appointed by the magistrate, in default of a testamentary or statutory guardian. The other forms of guardian had become obsolete, except a kind of fiduciary one, Inst. 1, 19, in consequence of the change in legislation.
For an account of Q. Mucius Scaevola (Consul b. c. 95) and Servius Sulpicius Rufus (Consul b. c. 51), who may be regarded as the fathers of Roman jurisprudence, see Roby, Intr. to Justinian’s Digest, pp. cvi and cxi.
DE MVLIERVM TVTELA.
§ 189. Sed inpuberes quidem in tutela esse omnium ciuitatium iure contingit, quia id naturali rationi conueniens est, ut is qui perfectae aetatis non sit, alterius tutela regatur. nec fere ulla ciuitas est, in qua non licet parentibus liberis suis inpuberibus testamento tutorem dare; quamuis, ut supra diximus, soli ciues Romani uideantur liberos suos in potestate habere.
Inst. 1, 20, 6.
§ 190. Feminas uero perfectae aetatis in tutela esse fere nulla pretiosa ratio suasisse uidetur; nam quae uulgo creditur, quia leuitate animi plerumque decipiuntur et aequum erat eas tutorum auctoritate regi, magis speciosa uidetur quam uera; mulieres enim, quae perfectae aetatis sunt, ipsae sibi negotia tractant et in quibusdam causis dicis gratia tutor interponit auctoritatem suam, saepe etiam inuitus auctor fieri a praetore cogitur.
§ 191. Unde cum tutore nullum ex tutela iudicium mulieri datur; at ubi pupillorum pupillarumue negotia tutores tractant, ei post pubertatem tutelae iudicio rationem reddunt.
§ 192. Sane patronorum et parentum legitimae tutelae uim aliquam habere intelleguntur eo, quod hi neque ad testamentum faciendum neque ad res mancipi alienandas neque ad obligationes suscipiendas auctores fieri coguntur, praeterquam si magna causa alienandarum rerum mancipi obligationisque suscipiendae interueniat; eaque omnia ipsorum causa constituta sunt, ut, quia ad eos intestatarum mortuarum hereditates pertinent, neque per testamentum excludantur ab hereditate neque alienatis pretiosioribus rebus susceptoque aere alieno minus locuples ad eos hereditas perueniat.
§ 193. Apud peregrinos non similiter ut apud nos in tutela sunt feminae; sed tamen plerumque quasi in tutela sunt; ut ecce lex Bithynorum, si quid mulier contrahat, maritum auctorem esse iubet aut filium eius puberem.
DE MVLIERVM TVTELA.
§ 189. The wardship of children under the age of puberty is part of the law of every state, for it is a dictate of natural reason that persons of immature years should be under the guardianship of another, in fact there is scarcely any state which does not permit a parent to nominate a testamentary guardian for his children under the age of puberty, though, as we have before stated, only citizens of Rome appear to be invested with parental power.
§ 190. But why women of full age should continue in wardship there appears to be no valid reason; for the common allegation, that on account of levity of disposition they are readily deceived, and that it is therefore right that they should be controlled by the sanctionary power of a guardian, seems rather specious than true, for women of full age administer their own property, and it is a mere formality that in some transactions their guardian interposes his sanction; and in these cases he is frequently compelled against his own will to give his sanction.
§ 191. Accordingly, a woman has not the tutelary action against her guardian; whereas since the guardians of youthful wards, both male and female, administer their wards’ property, they are liable to be sued on account of such administration when the ward has come to the age of puberty.
§ 192. The statutory guardianship of patrons and parents is not purely ineffective, as they cannot be compelled to give their sanction to a will or to the alienation of mancipable property, or to the undertaking of obligations, unless there are very weighty reasons for the obligation or the alienation; but this rule is in their own interest as heirs of intestacy, and is designed to prevent their loss of the estate by testamentary disposition, or the diminution of its value by debt or by alienation of a considerable portion.
§ 193. In other countries, though not under the same tutelage as at Rome, women are generally subject to a quasi tutelage: for instance, the law of Bithynia requires the contract of a woman to be sanctioned by her husband or by a son above the age of puberty.
As women were capable of administration, the functions of the guardian, which in the case of infants were either administrative or sanctionative, in the case of women were confined to sanctioning. Pupillorum pupillarumque tutores et negotia gerunt et auctoritatem interponunt: mulierum autem tutores auctoritatem dumtaxat interponunt, Ulp. 11, 25. It is transparent that the wardship of women after full age was not designed to protect their own interests, but those of their heirs apparent, their agnates. Originally the authorization of the guardian was not sufficient to validate the will of an independent woman: it was necessary that she should first break the ties of agnation, and separate from her family by means of a coemption (with her guardian’s sanction) and subsequent remancipation and manumission. She then, with the sanction of the manumissor, in his character of fiduciary guardian, could make a valid will. In the time of Gaius, Hadrian having abolished the necessity of coemption, to make a valid will an independent woman only required the sanction of her guardian, 2 § 112, and Claudius, as we have seen, had put an end to agnatic guardianship, § 171.
When a woman was liberated from the administrative control of her guardian, and the guardian had no longer any interest in the succession to her property, the simplest course would have been to declare her dispositions valid without his sanction—to declare her no longer a ward. But with characteristic conservatism of forms, Roman law, to avoid the open change, declared the auctoritas still necessary, but made it compulsory instead of voluntary—gave the ward a power of extorting it from the guardian, 2 §§ 80-85. So the act whereby a testamentary heir accepts an inheritance was originally absolutely voluntary: but when trusts (fidei commissa) were introduced, and the heir as trustee or fiduciarius by groundlessly refusing to make the necessary aditio, which in this case was the merest form, could produce intestacy, and thus deprive the beneficiary, fidecommissarius, or cestui que trust of the provision destined for him by the bounty of the testator: instead of declaring the aditio of the heres unnecessary to the acquisition of the fortune by fideicommissarius; or that in such a case the beneficiary should be deemed to be a direct substitutus of the heres; or that the vexatious refusal of the heres should be deemed to be an aditio and restitutio; the legislator ordained that the heres should be compelled to make aditio in order to complete the title, 2 § 258, comm. Again, the terms of the security given by the guardian (rem pupilli salvam fore) against dilapidation of the estate of the ward made the responsibility of the guardian depend on his actual administration; so that he was not responsible if the estate went to ruin in consequence of his total abstention from the performance of his duties. To protect the ward against this contingency, instead of altering the formula of the satisdatio, and making the liability of the guardian depend on his appointment and not on his acting; the law compelled him to proceed to some act of guardianship, in order to bring him under the unchanged terms of his security; Dig. 46, 6, 4, 3. In all these and other cases a compulsory act was substituted for a voluntary act for the sake of giving the law an outward appearance of continuity. At last, at some period before the epoch of Justinian, the tutelage of women above the age of puberty had ceased in form as well as in substance, and no sanction of a guardian, whether voluntary or compulsory, was required.
It is to be observed, that as women were gradually enfranchised from their disabilities, they also forfeited some of their original privileges. It was a rule of the administration of justice that while error of fact might be pleaded to defend a person against the consequences of his own acts or omissions, no one should be allowed to allege an error of law, Dig. 22, 6, 9 pr. An exception however was made in favour of minors, of soldiers, of the utterly uneducated (rustici), and of women. Against their ignorance of rules of law, particularly those rules of jus civile which are not, like rules of jus gentium or naturale, the almost self-evident dictates of reason and common sense, they were relieved by a branch of the praetor’s extraordinary jurisdiction, called in integrum restitutio, a power of cancellation and rescission, in cases of manifest collision between law and equity; §§ 197-200, comm. This privilege of women was partially abrogated by a constitution of the Emperor Leo, a. d. 472; Cod. 1, 18, 13. ‘To prevent the indiscriminate revocation by women of all their contracts on the ground of omission of error, be it enacted, that ignorance of law, whereby a woman is damnified in her right or property, shall only be a title to relief in those cases where previous statutes have sanctioned such relief.’
From § 189 it might appear that Gaius referred the institution of guardianship to the code of jus gentium. We have, however, quoted from the Institutes, §§ 142, 154, comm., a passage which ascribes it to jus civile: and, indeed, no institution confined in its operation almost entirely to cives, can be supposed to belong to jus gentium or natural law. Moreover, the law of guardianship has been most variable, not only if we look to different countries, but also if we look at different periods in the same country; and the praetor or chancellor or other authority that has had the supervision of guardians has always exercised a great latitude of discretion; features which again forbid us to ascribe the rules of wardship to any comparatively immutable code of nature. Tutela was in fact an old Roman institution, by which the gens or familia maintained control in its own interest over its weaker members, who were not subject to patria potestas. It is possible that this control was at first exclusively exercised by the gens, in whom the ownership of all land occupied by the gentiles may have been vested, and that agnatic as well as testamentary guardianship was first instituted by the law of the Twelve Tables, whereby patricians and plebeians were put on an equality in respect of private rights. That the gens was in the habit of taking charge in some way of lunatics and insane persons we know from the words of the Twelve Tables, which have come down to us—‘Si furiosus exit, ast ei custos ne exit, adgnatûm gentiliumque in eo pecuniaque eius potestas est.’ Cf. Muirhead, Roman Law, §§ 26, 28.
QVIBVS MODIS TVTELA FINIATVR.
§ 194. Tutela autem liberantur ingenuae quidem trium 〈liberorum iure libertinae uero quattuor, si in patroni〉 liberorumue eius legitima tutela sint; nam ceterae quae alterius generis tutores habent, [uelut Atilianos aut fiduciarios,] trium liberorum iure tutela liberantur.
§ 195. Potest autem pluribus modis libertina alterius generis 〈tutorem〉 habere, ueluti si a femina manumissa sit; tunc enim e lege Atilia petere debet tutorem, uel in prouinc〈iis e lege Iul〉ia et Titia; nam in patronae tutela esse non potest.
§ 195 a. Item si 〈a〉 masculo manumissa 〈fuerit〉 et auctore eo coemptionem fecerit, deinde remancipata et manumissa sit, patronum quidem habere tutorem desinit, incipit autem habere eum tutorem a quo manumissa est, qui fiduciarius dicitur.
§ 195 b. Item si patronus eiusue filius in adoptionem se dedit, debet liberta e lege Atilia uel Iulia et Titia tutorem petere.
§ 195 c. Similiter ex isdem legibus petere debet tutorem liberta, si patronus decesserit nec ullum uirilis sexus liberorum in familia reliquerit.
§ 196. Masculi autem cum puberes esse coeperint, tutela liberantur. puberem autem Sabinus quidem et Cassius ceterique nostri praeceptores eum esse putant, qui habitu corporis pubertatem ostendit, id est eum qui generare potest; sed in his qui pubescere non possunt, quales sunt spadones, eam aetatem esse spectandam, cuius aetatis puberes fiunt; sed diuersae scholae auctores annis putant pubertatem aestimandam, id est eum puberem esse existimant qui xiiii annos expleuit.—|NA
Inst. 1, 22 pr.
QVIBVS MODIS TVTELA FINIATVR.
§ 194. Guardianship is terminated for a freeborn woman by title of being mother of three children, for a freedwoman if under statutory guardianship of her patron or his children by being mother of four children: those who have other kinds of guardians, Atilian or fiduciary, for instance, are liberated from wardship by being mothers of three children.
§ 195. There are various ways by which a freedwoman may have other kinds of guardians: for instance in case of her manumission by a woman, when she must request a guardian under the lex Atilia, or, in the provinces, under the lex Julia and Titia, since a female patron cannot be her guardian.
§ 195 a. Also on manumission by a male, if with his sanction she makes a coemption, and then is remancipated and manumitted, for the patron then ceases to be guardian, and is replaced by the second manumitter, who is called a fiduciary guardian.
§ 195 b. Also on the adrogation of her patron or his son she must demand a guardian under the lex Atilia or Titia.
§ 195 c. Similarly in compliance with the same laws she must demand a guardian on the decease of her patron without leaving any male descendant in the family.
§ 196. For males the attainment of the age of puberty is a release from wardship. Puberty, according to Sabinus and Cassius and the other authorities of my school, depends on physical development, that is, on capacity of generation; or in case of impotence, eunuchs for instance, on the completion of the age which usually implies capacity of generation. The other school hold that puberty is to be exclusively measured by age, that is to say, that it should always be deemed to be attained on the completion by a male of his fourteenth year.
§ 196. All jurists agreed that in the case of impotence, whether natural or acquired, some fixed date must be assumed as the conventional period of puberty. The Sabinian rule appears to be preserved in a passage of Paulus: Spadones eo tempore testamentum facere possunt quo plerique pubescunt, id est, anno decimo octavo, 3, 4 a, 2. Fourteen was assumed to be the average age of puberty; but it was too early, even in the southern climes subject to Roman legislation, for a minority of constitutions which advance more slowly to maturity. Eighteen was supposed to be sufficiently postponed to include most of these cases of retarded development. We have already, in treating of adrogation, § 106, commentary, met with the phrase, plena pubertas, denoting eighteen years of age.