5. GUARDIANSHIP

Tutela impuberum. Children usually present two problems to a system of law. They must be prevented from squandering their property through inexperience; and, if either or both of their parents die, provision must be made for their upbringing and for the management of their property.

Tutela impuberum in the classical law corresponds broadly to the English guardianship of infants, but its original purpose was evidently very different. Modern guardianship is conceived exclusively in the interests of the ward, primitive tutela far more in the interests of the guardian {tutor). The history of tutela is best seen as a movement from one conception to the other, as the transformation of a privilege into a burden; but the trans­formation was never completed, and some of the characteristic features of the institution can be explained only in terms of the original conception.

(i)  Who is tutor? The earliest rule was that the nearest male agnate was tutor. Here the primitive idea is plainly to be seen. For it was the nearest agnate who was entitled to succeed to the property of the ward {pupillus) if he died, and who was therefore personally interested in its preservation. This guardianship by the nearest male agnate was called tutela legitima, as deriving from the lex of the Twelve Tables, but it must have been estab­lished in the customary law long before, and, subject to what ¹ Buckland, Textbook of Roman Law, and edn., p. 111. follows, it remained in force until Justinian recast the law of succession on intestacy.¹

Such was the original law, but already in the Twelve Tables the connexion between succession on death and tutela was broken.

(ii)  Duration of pupillage. In most modern systems a child comes of age at 21, it being thought that at that age he should be capable of looking after his own affairs. In Roman law, however, he came of age at puberty, which was eventually deemed to occur at 14 for males and 12 for females. The reason for the difference lies in the different purposes of primitive style='font-style:italic'>tutela and modern guardianship. For at puberty the child became capable of having children of his own, and those children would be entitled to succeed to his property to the exclusion of the nearest agnate. The raison d’etre of the legitimus tutor had dis­appeared and tutela therefore ceased. The introduction of the testamentary tutor, who might have no interest in the succession, and still more the later growth of the idea that tutela was a duty undertaken in the interest of the child, would have led a less conservative system to raise the age at which tutela ended, but

¹              See below, pp.

²              Until a.d. 390, when imperial legislation allowed the magistrate in certain circumstances to appoint the mother.

³   See below, pp. 95 f.

the Romans left the old rule unaltered, and developed instead the parallel institution of cura minorum¹ to protect young persons over the age of puberty from the consequences of their own lack of judgment.

(iii) Accountability of tutor. Unlike the modern guardian, the tutor was concerned primarily, and in later law exclusively, with the property of the child. Custody and upbringing were usually entrusted to the mother or some other close relative. It is in the extent to which the tutor could be called to account for his conduct that the change in the nature of tutela can most clearly be seen. Under the early law a tutor could only be made liable for fraudulent misappropriation of the property, but in the late Republic there appeared a remedy (actio tutelae) by which the pupillus could, on reaching puberty, call the tutor to account for his management of the property according to the principles of good faith, and out of this remedy grew a body of rules which so regulated the conduct of the tutor that tutela became, like modern guardianship, a duty to be conscientiously discharged in the interests of the pupillus.

(iv)  Functions of tutor. We must now examine more fully the extent of the incapacity of the pupillus and the ways in which the tutor discharged his function of managing the property.

The tutor could act in two ways, either directly, by adminis­tering the property himself, or indirectly, by validating the acts of the pupillus. If he chose the former method, however, he was hampered by one of the most notable shortcomings of Roman law—its lack of a concept of agency.² It never accepted the principle, which is a commonplace of modern systems, that one man (the agent) acting on behalf of another (the principal) could create both rights and duties in that other and incur neither himself. Consequently nothing that the tutor did could either bind or entitle the pupillus, and he must take the risk that the pupillus might repudiate his acts at the end of the tutela. By the end of the classical period the worst drawbacks of this lack of agency had by various devices been removed, but it remained ¹ See below, pp. 93 ff.                          ² See below, pp. 201 ff.

true that the only way in which the pupillus could directly incur rights and duties was by his own act. And here the law required that some acts be validated by the tutor. This requirement needs further examination.

The period in a child’s life before puberty fell into two parts. So long as he was incapable of reason (strictly, of speech—infans') he could perform no legal act at all. The ending of infancy was originally a question of fact, but the late law fixed it at the age of seven.

Cura minorum. In the later Republic it became obvious that puberty was not an age at which a young man could be left to his own devices in the management of his property. The prob­lem was met, characteristically, not by extending the period of tutela, but by gradually evolving another institution. The first step was taken about 200 b.c. A Lex Plaetoria (or perhaps Laetoria) imposed a penalty on anyone who fraudulently took advantage of the inexperience of a person under the age of twenty-five {minor XXV annis, here referred to as a minor).

The effect of the Praetor’s intervention was obviously to make the ordinary man reluctant to deal with a minor at all, for fear that he would later allege that he had been overreached. To guard against this there grew up a practice of calling in an independent adult to approve the transaction. For a long time this curator, as he came to be called, had no formal legal recognition, being merely someone called in as necessary for each transaction. In the second century a.d., however, he had become so normal and permanent a feature of a minor’s exis­tence that the Praetor would make an appointment on the application of the minor.

The resemblance between the curator of a minor and the tutor of an impubes was at this stage no more than superficial. In particular, the effect of the curator’s approval of a transac­tion was in principle quite different from that of a tutor’s auctoritas. Auctoritas was, within the limits stated above, both legally necessary and legally sufficient—without it the act, even if on balance profitable, was ineffective; with it the act, even if wholly disadvantageous, was valid (though the tutor might have to account to his ward for his misconduct in authorizing it). The ¹ See below, pp. 235 ff.

consent of the curator, on the other hand, was neither necessary nor in itself sufficient. It was merely one kind of evidence, though no doubt the best kind, that the transaction was in the minor’s interest. Accordingly, if there were no curator’s consent, the minor still had to satisfy the Praetor that the transaction should be set aside, and, conversely, even if there were consent this was not conclusive against the minor’s claim—he could, for example, adduce evidence that the curator had been negligent or fraudulent.

In the later law there was a progressive blurring of the dis­tinction between tutor and curator, and nothing but the usual reluctance of Justinian’s compilers to make a clean sweep can explain their failure to complete the process. Certainly it is the rules of tutela rather than of cura which have survived into, for example, German law. Of course some features which even in Roman times had lost their justification have disappeared. The age of full capacity, for example, is no longer puberty; and the modern filiusfamilias can own property, and therefore the rules apply equally to all persons under age, the father having in this respect the functions of the Roman tutor. The rules themselves, however, are recognizably Roman.

Other forms of guardianship. As we have seen, the original reason for the ending of tutela at puberty must have been that the pos­sibility of the ward’s having children of his own to succeed to his property destroyed the interest on which the tutela of the nearest agnate rested. But this was true only of males. A woman’s children, not being agnatically related to her, could have no rights of succession to her property.¹ The nearest agnate there­fore retained a lifelong interest, and to protect that interest the woman was subjected to a lifelong tutela. The same develop­ments which destroyed the justification for the ending of tutela over males at puberty destroyed also the justification for its indefinite prolongation over females, but in both cases con­servatism prevailed over logic. Indeed a new reason was found for the lifelong tutela of women—that they were incapable of looking after their own affairs. Gaius has the generosity to admit that this is a specious reason, and in fact in his day tutela of women had become for the most part an empty form. The tutor’s only function was the giving of auctoritas, and even this could in most cases be compelled. Devices had moreover been developed which made it more easy for a woman to change her tutor, and Augustus, in his zeal for raising the birth-rate, allowed the birth of three children (four for freedwomen) to terminate tutela altogether. The whole institution had disap­peared before the time of Justinian.

Any system must make provision for the care of the person and the property of lunatics. The Twelve Tables, following the same principle as in tutela, had directed that the guardian (curator) of afuriosus should be the nearest agnate or the gens— i.e. those entitled on intestacy. If there was no one so entitled, a curator was appointed by the Praetor.

The same care for the family property is found in the institu­tion, also deriving from the Twelve Tables, of the guardianship of the spendthrift (cura prodigi). A person who wasted his property could be debarred by magisterial interdict from the management of that property and placed under the supervision of the nearest agnate or the gens. This interdiction of spend­thrifts survives in many Civil law systems of the modern world, but is quite foreign to English law, which accords to the adult of sound mind full freedom to dissipate his property as he will while he lives, just as until 1939 it allowed him completely to disinherit his dependants on his death.¹