Inst. i. 20, §§ 3-4: Sed ex his legibus pupillis tutores desierunt dari, postquam primo consules pupillis utriusque sexus tutores ex inquisitione dare coeperunt, deinde praetores ex constitutionibus. Sed hoc iure utimur, ut Romae quidem praefectus urbis vel praetor secundum suam iurisdictionem, in provinciis autem praesides ex inquisitione tutores crearent, vel magistratus iussu praesidum, si non sint magnae pupilli facultates.' The mother of the ward and-by the latest Law—all his eventual successors, were under obligation to apply for, and specify, a guardian. Mod.: Divus Severus Cuspio Rufino: Omnem me rationem adhibere subveniendis pupillis, cum ad curam publicam pertineat, liquere omnibus volo; et ideo quae mater vel non petierit tutores idoneos filiis suis, vel prioribus excusatis reiectisve non confestim aliorum nomina dederit, ius non habeat vindicandorum sibi bonorum intestatorum filiorum.'-D. 26, 6, 2, 2.2 BOOK II. Part I. city of Rome under the 1. Atilia by the Urban Praetor and the majority of the plebeian tribunes, who is called an Atilian' tutor; but in the provinces, by the governor thereof, under the 1. Iulia et Titia. 1 But, by virtue of these statutes, the appointment of tutors to wards ceased after that the consuls in the first instance had begun to give guardians to wards of either sex after inquiry, and subsequently the praetors, as a result of constitutions.But now the law in force is that at Rome the prefect of the city or the praetor, according to his jurisdiction, in the provinces the governors, appoint the guardians after inquiry, or the magis trates do so upon the order of the governors, if the ward's property be inconsiderable. "The divine Sever. to Cusp. Ruf.: 'I would have all men understand that I apply my whole wisdom to the assistance of wards, since this is subject of state supervision, and accordingly, every mother that shall not have applied for suitable guardians for her children, or have immediately proposed others if the earlier ones shall have declined or have been discarded, shall have no BOOK II. a Stipulatio & § 31.-Cf. Upon assumption of the guardianship, the guardian has to make an inventory, and the legitimus tutor' to give, besides, a cautio" by way of security. Gai. i. §§ 199, 200: Ne tamen pupillorum et eorum, qui in curatione sunt, negotia a tutoribus curatoribusque consumantur aut deminuantur, curat praetor, ut et tutores et curatores eo nomine satisdent. § Sed hoc non est perpetuum: nam et tutores testamento dati satisdare non coguntur, quia fides eorum et diligentia ab ipso testatore probata est; et curatores ad quos non e lege curatio pertinet, sed qui vel a consule vel a praetore vel a praeside provinciae dantur, plerumque non coguntur satisdare, scilicet quia satis honesti electi sunt. (Inst. i. 24, pr.: -ex inquisitione tutores vel curatores dati satisdatione non onerantur, quia idonei electi sunt.)1 Gai. Servum pupilli stipulari ita necesse est, si pupillus abest aut fari non potest: nam si praesens sit et fari potest, etiamsi eius aetatis . erit, ut non intelligat quid agat, tamen propter utilitatem receptum est, recte eum stipulari.-D. 46, 6, 6.2 right to make a title to the goods of such children as shall die intestate. 1 That, however, the property of pupils and of those persons who are under curators be not wasted or reduced, the praetor takes care that both tutors and curators find security on such behalf. But this is not universal; for tutors appointed by testament are not required to find security, because their integrity and carefulness have been accredited by the testator himself; and curators to whom the curatorship does not come by virtue of a statute, but who are appointed either by a consul or by a praetor, or by the governor of the province, are in general not required to find security, because sufficiently trustworthy persons have been chosen (-tutors or curators appointed after inquiry are not burdened with the finding of security, because it was as suitable persons that they were chosen). "A slave of the pupil must stipulate when the pupil is absent, or cannot yet speak; for if he is present and can speak, even if he be of such age as not to understand what he is doing, Pomp. Quod in tutelae iudicium venit, hoc et ea stipulatione continetur.-1. 9 eod.' § 65. END OF GUARDIANSHIP. Guardianship ends in general by death and every capitis diminutio of the pupil, as well as by attainment of puberty. Ulp. Si adrogati sunt adhuc impuberes vel deportati sint pupilli, tutores habere desinunt.— Item si in servitutem pupillus redigatur, utique finitur tutela.-D. 26, 1, 14, §§ 1, 2.2 It ends as regards the person of him who has been hitherto guardian, by entrance upon the final term of the testamentary tutela; by magna' (in legitima tutela also by minima') capitis diminutio, by 'excusatio' (in testamentary tutela of ante-Justinianean Law, 'abdicatio' also) of the tutor; and finally, by his removal on account of conduct in violation of his duty, preceded by a complaint which may be laid by any one (accusatio suspecti). Sed et capitis deminutione tutoris, per quam libertas vel civitas eius amittitur, omnis tutela perit. § 4, I. h. t. I, 22.3 Paul. Tutelas non amittit capitis minutio, exceptis his quae in iure alieno personis positis deferuntur. Igitur ex testamento dati vel ex lege vel ex senatusconsulto erunt nihilo minus tutores: sed legitimae tutelae ex duodecim tabulis intervertuntur eadem ratione, qua et yet for convenience' sake the opinion is that he makes a lawful stipulation. 1 That which enters into the action of guardianship is contained also in such stipulation. If those who are still under the age of puberty have been arrogated, or pupils have been deported, they cease to be under tutors. Also if a ward be reduced to slavery, doubtless there is an end to guardianship. 3 But every tutelage ceases also by the cap. dem. of the tutor, by which his freedom or citizenship is lost. BOOK II. BOOK II. Part I. a See Anct. Law,' pp. 152154. 1 hereditates exinde legitimae, quia adgnatis deferuntur, qui desinunt esse familia mutati.D. 4, 5, 7 pr. 1 Ulp. xi. 17: -tutor testamento datus . si abdicaverit se tutela, desinit esse tutor : abdicare autem est dicere nolle se tutorem esse : legitimus . . . abdicare se non potest.2 Inst. i. 26 pr.: Sciendum est suspecti crimen e lege XII tabularum descendere.—§ 1, Datum est autem ius removendi suspectos tutores Romae praetori et in provinciis praesidibus earum et legato proconsulis.-§ 3, Consequens est ut videamus, qui possint suspectos postulare; et sciendum est quasi publicam esse hanc actionem h. e. omnibus patere.-§ 6, Suspectus autem remotus, si quidem ob dolum, famosus est; si ob culpam, non aeque. 3 § 66. TUTELA MULIERUM," From of old all women free from Power were placed Cap. dim. does not determine guardianships, except those which devolve upon agnates placed under the authority of another. Those, therefore, who have been appointed by virtue of a testament, or statute, or decree of the senate, will be none the less tutors; but statutory guardianships according to the Twelve Tables are invalid for the same reason as statutory inheritances also, because they devolve upon agnates who no longer pass as such upon a change of family. 2 If the guardian appointed in a testament resign, he ceases to be guardian: now abdicare is, to state that he declines to be tutor. . . a statutory guardian cannot resign. 3 It should be noted that the accusation against a person under suspicion is derived from a law of the Twelve Tables.The right to remove suspected guardians has been given, at Rome to the praetor, and in the provinces to the governors thereof and the proconsular legate.-Next we must see who can proceed against suspected persons, and have to note that this action is, as it were, a public one, i.e., the action lies open to all.— Now he that has been removed as under suspicion, is dishonoured if it has been because of deceit; but not if it has happened from carelessness. BOOK II. Part I. under life-long guardianship. Although later on the custom was to regard the ground of this sexual guardianship as furnished by the women's own interest, and to trace it back to 'sexus fragilitas' (infirmitas consilii, animi levitas) and 'forensium rerum ignorantia,' yet we must look for its actual cause in the subordinate position of the female sex under Private Law," and in a § 59the interest, exalted into a right, which the members of a family had in preserving a woman's property for the familia. The work of the guardian is here con- § 62, ad init. fined-apart from the pupillae-simply to giving ' auctoritas' for certain transactions. From the time, Infra: Gai. ii. 47; Vat. however, that such auctoritas could in certain cases fgm. 1; Gai. either be enforced, or could be legally avoided, and after the principal instance of the guardianship of women, that of agnates, was abolished by statute, this too continually lost importance: it had already in the second century seemed alien to people of the time, and quite disappeared towards the end of the third century. Gai. i. §§ 144-5 Veteres voluerunt feminas, etiamsi perfectae aetatis sint, propter animi levitatem in tutela esse.-Tantum ex lege Iulia et Papia Poppaea iure liberorum tutela liberantur feminae; loquimur autem exceptis virginibus Vestalibus, quas etiam veteres in honorem sacerdotii liberas esse voluerunt: itaque etiam lege XII tabularum cautum est.1 Ulp. xi. 25: Pupillorum pupillarumque tutores et negotia gerunt et auctoritatem interponunt; mulierum autem tutores auctoritatem dumtaxat 1 The ancients thought it right for women, even if of full age, to be under tutelage, because of weakness of intellect. By the 1. Iulia et Pap. Popp. it is only by the privilege they possess as having borne children that women are freed from tutelage. In saying so, however, we make an exception of the vestal virgins, whom also the ancients, in honour of their office, wished to be free; and therefore it was so provided by a law of the Twelve Tables. iii. 104. |