tutelas illas sustulit: itaque masculus quidem BOOK II. Part I. Ulp. xi. 8: Feminarum legitimas tutelas lex Claudia sustulit, excepta tutela patronorum.2 (B) It is marked by the following peculiarities : First, the regular non-enforceable character of the tutelae auctoritas; as was certainly always recognised in the case of 'patroni et parentes,' but with agnates scarcely indeed until the time of Claudius." But as a Except in the against the alterius generis tutores,' the auctoritas arii tutores could ever be obtained peremptorily, first of all in (Gai. i. 114, respect of 'in manum conventio,' and later on in other also the optivi, always gave cases also. their authority case of fiduci sq.), who, as matter of form Gai. i. § 192: Sane patronorum et parentum only as a legitimae tutelae vim aliquam habere intelliguntur (dicis causa). 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 obligationisve suscipiendae interveniat: 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 perveniat." 1 But formerly indeed, so far as concerns the Law of the Twelve Tables, women also had their agnates as tutors; but the 1. Claudia was afterwards passed, which, in relation to women, abolished those guardianships; accordingly, while a male under puberty has as his guardian a brother of the age of puberty or paternal uncle, a woman cannot have a guardian of that kind. 2 The 1. Claudia abolished the statutory guardianships of women, with the exception of those held by patrons. 3 The statutory guardianships of patrons and ancestors are certainly seen to have some force from the fact that these persons are not compelled to sanction either the execution of a testament, or the conveyance of a res mancipi, or the undertaking Y BOOK II. Part I. a Supra, p. 310. Secondly, the possibility of 'in iure cessio tutelae' by the guardian to a third party. Gai. i. §§ 168-170: Adgnatis et patronis et liberorum capitum manumissoribus permissum est feminarum tutelam alii in iure cedere; pupillorum autem tutelam non est permissum cedere, quia non videtur onerosa, cum tempore pubertatis finiatur. § Is autem cui ceditur tutela cessicius tutor vocatur. § Quo mortuo aut capite diminuto revertitur ad eum tutorem tutela, qui cessit; ipse quoque qui cessit si mortuus aut capite diminutus sit, a cessicio tutela discedit et revertitur ad eum qui post eum, qui cesserat, secundum gradum in ea tutela habuerit.' (3) A guardian is appointed to a woman by the magistrate, either for a permanency, in the event of her otherwise having no tutor," or for a particular legal act, if her tutor is prevented from giving auctoritas. This occurs especially (a) in case of absence. Gai. i. § 173: Senatusconsulto mulieribus permissum est, in absentis tutoris locum alium of obligations, unless a weighty reason present itself for the conveyance of res mancipi or the undertaking of obligations. And all such things have been settled on behalf of the tutors themselves, inasmuch as the inheritances of women dying intestate pass to them, and they are not excluded from the inheritance by a testament, nor does the inheritance come to them depreciated by alienation of the more valuable things, or by its being charged with a debt. 1 Agnates and patrons and those who have manumitted free persons are allowed to transfer the tutelage of women to a third person by surrender in court; but not the tutelage of male pupils, because it is not regarded as burdensome, since it comes to an end at the time of puberty. § Now he to whom the tutelage is transferred is called' tutor cessicius.' § Upon his death, or loss of status, the tutelage reverts to the tutor who transferred it. And if the transferor himself dies, or experiences loss of status, the tutelage passes from the tutor cessicius' and reverts to the person who in respect of such tutelage shall stand next in succession to the transferor. petere quo petito prior desinit, nec interest, Ulp. xi. 22: Item ex senatusconsulto tutor (3) In the case of minority or insanity of the tutor. Ulp. xi. 20: Ex lege Iulia de maritandis ordinibus tutor datur a praetore urbis ei mulieri virginive, quam ex hac ipsa lege nubere oportet, ad dotem dandam dicendam promittendamve, si legitimum tutorem pupillum habeat.3 Gai. i. §§ 180, sq.: Item si qua in tutela legitima furiosi aut muti sit, permittitur ei senatusconsulto dotis constituendae gratia tutorem petere. -Quibus casibus salvam manere tutelam patrono patronique filio manifestum est." As to the termination of tutela mulierum, the same rule holds as in respect of tutela impuberum. The 1 By a decree of the senate women are allowed to apply for a new tutor in the place of one that is absent; and the former ceases to be tutor upon this application being entertained, neither does it matter how far distant such tutor shall be. 2 Likewise, by a decree of the senate, a tutor is appointed to a woman whose tutor is absent, unless he that is absent is her patron; for no application can be made for a tutor in place of an absent patron, except for the purpose of taking up an inheritance and contracting a marriage. By the l. Iulia de maritandis ordinibus a tutor is appointed by the Urban Praetor to such woman or virgin as is required to marry by this very statute, in order that he may give, specify or promise her dowry, if she have a pupil as her guardian-atlaw. Likewise if a woman be under the statutory guardianship of a lunatic or a dumb person, she is allowed by the decree of the senate to apply for a guardian for the purpose of settling her dowry. In these cases it is clear that the guardianship remains undisturbed for the patron and the son of the patron. BOOK II. Part I. BOOK II. a Cf. Gai. i. 114. § 61. 'coemptio tutelae evitandae causa 'a is a peculiar kind of release, which, however, originally was applied only to testamentary and magisterial guardianship, and not until a later period to that of agnates; as it saved the difficulty of enforcing auctoritas in the particular case, it in general, according to its practical result, as good as relieved women from the bondage of guardianship, oppressive and contrary as it was to the spirit of the time. Gai. i. § 196: Item si sit a masculo manumissa, 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.' § 67. CURA. Curators were appointed either by Law or by the magistrate. Ulp. xii. 1 Curatores aut legitimi sunt, i.e. qui ex lege XII tabularum dantur, aut honorarii, i.e. qui a praetore constituuntur. Dantur autem curatores ab eisdem magistratibus, a quibus et tutores; sed curator testamento non datur, sed datus confirmatur decreto praetoris vel praesidis.§ 1, I. h. t (1, 23).3 The following are the chief cases of 'curatela.' (1) The 'cura furiosi' and 'cura prodigi,' accord 1 Likewise if she has been manumitted by a male, and with his sanction has made a coemption, and then has been remancipated and manumitted, she ceases to be under the guardianship of her patron, but begins to have him as guardian by whom she was manumitted, who is called a 'fiduciary' guardian. 2 Curators are either legitimi, i.e., who are assigned by virtue of a law of the Twelve Tables, or are honorarii, i.e., are appointed by the praetor. 3 Curators are appointed by the same officers as are tutors. But the curator is not appointed by testament, though when so appointed he is confirmed by a decree of the praetor or the governor. BOOK II. Part I. ing to the Twelve Tables devolving upon the agnates, which, however, in default of agnates, and later on quite universally," were imposed by the competent " In the exmagistrate. a tended applica tion by the Practor. Cic. de inv. ii. 50, 148: Lex: SI FVRIOSVS For the EngESCIT, ADGNATVM GENTILIVMQVE IN EO PECVNIAQVE lish committee of lunatic,' EIVS POTESTAS ESTO.1 see Steph. ii. 514; and for Ulp. lex XII tabularum ita accepta est, ut conflict of laws, ad pupillos vel pupillas non pertineat.-D. 26, Westl. pp. 48, I, 3 pr.2 Ulp. xii. 2, 3: Lex XII tabularum furiosum itemque prodigum, cui bonis interdictum est, in curatione iubet esse adgnatorum.-A praetore constituitur curator, quem ipse praetor voluerit, libertinis prodigis, itemque ingenuis qui ex testamento parentis heredes facti male dissipant bona: his enim ex lege curator dari non poterat, cum ingenuus quidem non ab intestato, sed ex testamento heres factus sit patri, libertinus autem nullo modo patri heres fieri possit, qui nec patrem habuisse videtur, cum servilis cognatio nulla sit.3 Id. Sed solent hodie praetores vel praesides, si talem hominem invenerint, qui neque tempus 1 The statute runs: 'If he be a madman, his agnates and relations of the same gens shall have control over him and his property.' 2 The law of the Twelve Tables has been understood not to refer to pupils male or female. 3A law of the Twelve Tables directs that a lunatic, as also a spendthrift who has been interdicted the administration of his property, shall be under the charge of his agnates. By the praetor is appointed a curator, at his discretion, to free-born spendthrifts, and to freedmen likewise who, being testamentary heirs of their ancestor, are squandering their estate; for to such a curator could not be appointed by statute, since the man of free-birth was made heir by his father not ab intestato, but by testament, and the freedman because he could not be heir to his father in any way; and he is not regarded as having a father, since servile cognation does not exist. |