Guardianship (tutela)

Independent persons (sui iuris) - that is, those not submitted to paternal or marital power - could be under guardianship, depending on their age and sex. Guardianship was available for children under puberty (boys under fourteen and girls under twelve) and women.

Family law 131 (technically called tutor) was closed to women. Nonetheless, a tutor’s power was not as extensive as a father’s. For instance, a tutor had no power of life and death, and he could not give a ward up for adoption. His power implied duties regarding education, maintenance, and administration of the ward’s property. Legal acts of the tutor affected and bound the tutor, not the ward. If a tutor sold something belonging to the ward, it was the tutor and not the ward who was bound by the contract (indirect agency). In the late Republic, guardianship shifted from a privilege to a burden, from a right to a duty, and the interest and protection of the ward prevailed over the tutor’s rights and powers. Under later Principate, guardianship was regarded as a public service (munus publicum), and tutors came ever more under the control of public authorities.

According to the earliest law consolidated in the Twelve Tables (V.6), the father had the right to appoint a tutor by will for his children (tutor testamen­tarius). The tutor had to be a male citizen and must have attained puberty. The appointment was effective from the moment in which the will came into effect, but the tutor had the right to reject the guardianship (abdicatio tutelae); accordingly, he could also be dismissed by public denunciation and the filing of a charge against him (accusatio suspecti tutoris). At the beginning of the Principate, the tutor was bound to discharge his functions (ius excusandi).

When boys and girls had neither a testamentary nor a legitimate tutor, the lex Atilia (before 186 bce) allowed the urban praetor to appoint a tutor by decree. The measure was extended to the provinces by lex Julia et Titia (31 bce), authorizing each provincial governor to appoint tutors in his territory. Under the Principate, consuls and praetors usually appointed tutors. From the time of Marcus Aurelius, a special praetor was charged with overseeing guardian­ship. A tutor appointed by a magistrate could be dismissed at any time by the magistrate who appointed him. The ward could bring action against a tutor appointed by a magistrate or against a testamentary tutor for the restitution of the ward’s property or to collect damages for the fraudulent or negligent administration of it (actio tutelae).