TUTOR
TUTOR There were two forms of guardianship in Roman law, the
tutela and the
cura, which must be carefully distinguished. The difference
between them is explained in the article CURATOR. According to the law of
the Twelve Tables, persons not under patria potestas, who by reason of age
or sex were incapable of acting for themselves, were under the protection of
a tutor for their own interest and for the interest of those who might be
their heredes. In the case of such persons a tutor supplied to some extent
the place of a paterfamilias. (Cf. Paul.
Frag. Vat. 304,
“tutores quasi parentes proprii pupillorum sunt.” ) The
protection of the tutela was given to impuberes and to women. A tutor
derived his name “a tuendo” from protecting another. (Inst.
1.13, 2; cf. Isid.
Orig. 10.264, “tutor: qui pupillum
tuetur, hoc est intuetur.” ) The tutela or function of a tutor is
thus defined by Servius Sulpicius, as cited by Paulus (
Dig. 26,
1,
1):
“Tutela est vis ac potestas in capite libero ad tuendum eum qui
propter aetatem
sua sponte se defendere
nequit, jure civili data ac permissa:”
“sua sponte” is probably an interpolation for “vel
sexum,” which latter words would not be applicable when the tutela
mulierum had become obsolete (Voigt,
Zwölf Tafeln,
§ 110, n. 6).
The tutela was a kind of potestas, according to the old law; a power similar
to the patria potestas, but of a much more restricted character. The power
was to be used for the purpose of protection, and hence tutela implies duty
(
officium) as well as right. The object of
this right and duty was
in tutela (Gaius,
1.142;
Cic. pro Rosc. Com.
6, 16); while, on the other hand, a person who was his own master was
said
suae tutelae esse (
Dig.
32,
1,
50,
11; cf. Voigt,
l.c., note 2).
As to the classification of the different kinds (
genera) of tutela, the jurists differed. Some made five genera,
as Quintus Mucius; others three, as Servius Sulpicius; and others two, as
Labeo. The most convenient division is into two genera,--the tutela of
impuberes (
pupilli, pupillae), and the tutela
of women. The pupillus or the pupilla is the male or female who is under
tutela.
Every paterfamilias had power to appoint by testament a tutor for his
children who were in his power: if they were males, only in case they were
impuberes; if they were females, also while the perpetua tutela mulierum
existed, in case they were above the age of puberty (Gaius, 1.144).
Therefore, if a tutor was appointed for a male, he was released from the
tutela on, attaining puberty (fourteen years of age), but the female still
continued in tutela, unless she was released from it by a special exemption,
as by the Jus Liberorum under the Lex Julia et Papia Poppaea. A man could
only appoint a tutor for his grandchildren, when they would not upon his
death come into the power of their father. A father could appoint a tutor
for postumi, provided they would have been in his power, if they had been
born in his lifetime. A man could appoint a tutor for his wife
in manu, and for his daughter-in-law (
nurus) who was in the manus of his son. The usual
form of appointing a tutor was this: “Lucium Titium Liberis meis
tutorem do.” A man could also give his wife
in
manu the power of choosing a tutor (
tutoris
optio); and the optio might be either plena or angusta. She
who had the plena optio might either choose a tutor who was to act for her
in all her transactions, or might choose a tutor from time to time to act in
particular transactions: she who had the angusta optio was limited in her
choice to the number of times which the testator had fixed (Gaius, 1.150,
&c.).
The power to appoint a tutor by will was either given or confirmed by the
Twelve Tables. The earliest instance recorded of a testamentary tutor is
that of Tarquinius Priscus being appointed by the will of Ancus (
Liv. 1.34), which may be taken to prove this much
at least, that the power of appointing a tutor by will was considered by the
Romans as one of their oldest legal institutions. The nearest kinsmen were
usually appointed tutores; and if a testator passed over such, it was a
reflection on their character (
Cic. pro P.
Sextio, 52),--that is, we must suppose, if the
testator himself was a man in good repute. Persons named and appointed
tutores by a will are called by Gaius
tutores
dativi; in the legislation of Justinian
tutor
dativus means a tutor appointed by a magistrate (
Dig. 46,
6,
7; Cod. 5, 30, 5), a tutor appointed by will being
tutor testamentarius; those who were chosen under
the power given by a will were
tutores optivi
(Gaius, 1.154).
If the testator appointed no tutor by his will, the tutela was given by the
Twelve Tables to, the nearest agnati of the impubes, and such tutores were
called
legitimi. The nearest agnati were also
the heredes in case of the impubes dying intestate and without issue, and
the tutela
[p. 2.910]was therefore a right which they
claimed as well as a duty imposed on them. Perseus (2.12) alludes to the
claim of the tutor as heres to his pupillus. A brother who was pubes was the
legitimus tutor of a brother who was impubes; and if there was no brother
who was pubes, the son who was impubes had his father's brother (
patruus) for his tutor. The same rule applied to
females also, till it was altered by a Lex Claudia, which abolished the
tutela legitima of women. If there were several agnati in the same degree,
they were all tutores. If there were no agnati, the tutela belonged to the
gentiles, so long as the Jus Gentilicium was in force (Gaius, 3.17, and
1.164). Perhaps the agnatorum tutela legitima was created by the Twelve
Tables, the tutela having previously devolved at once on the gens, if the
impubes belonged to one. The tutela in which a freedman was with respect to
his patronus was also legitima; not that it was expressly given by the words
(
lex) of the Twelve Tables, but it flowed
from the lex as a consequence (
per
consequentiam, Ulp.
Frag. tit. 11); for as the
hereditates of intestate liberti and libertae belonged to the patronus, it
was assumed that the tutela belonged to him also, since the Twelve Tables
allowed the same persons to be tutors in the case of an ingenuus, to whom
they gave the hereditas in case there was no suus heres (Gaius, 1.165).
If a free person had been mancipated to another either by his parent or
coemptionator, and such other person manumitted the free person, he became
his tutor fiduciarius by analogy to the case of freedman and patron.
(Compare Gaius, 1.166, with Ulp.
Frag. tit. 11, s. 5.) [EMANCIPATIO; FIDUCIA.]
If an impubes had neither a tutor testamentarius nor legitimus, he had one
given to him in Rome, under the provisions of the Lex Atilia, by the praetor
urbanus and the major part of the tribuni plebis (as to the date of this
law, cf.
Liv. 39.9); in the provinces in such
cases a tutor was appointed by the praesides under the provisions of the Lex
Julia et Titia, B.C. 31. [LEX JULIA ET TITIA.] If
a tutor was appointed by testament either
sub
condicione or
ex die certo, a tutor
might be given under these leges so long as the condition had not taken
effect or the day had not arrived: and even when a tutor had been appointed
absolutely (
pure), a tutor might be given under
these leges until the will should take effect by the heres under it taking
the inheritance; but the power of such tutor ceased as soon as there was a
tutor under the testament,--that is, as soon as the testament took effect by
the existence of a heres under it. If a tutor was captured by the enemy, a
tutor was also given under these leges, but such tutor ceased to be tutor as
soon as the original tutor returned from captivity, for he recovered his
tutela Jure Postliminii.
Even before the passing of the Lex Atilia tutors were given by the praetor in
other cases, as for instance, when the legis actiones were in use, the
praetor appointed another tutor if there was any action between a tutor and
a woman or ward, for the tutor could not give the necessary authority
(
auctoritas) to the acts of those whose
tutor he was, in a matter in which his own interest was concerned. Other
cases in which a tutor was given are mentioned by Ulpian,
Frag. 11.
Ulpian's division of tutores is into Legitimi, Senatusconsultis constituti,
and Moribus introducti. His legitimi tutores comprehend all those who become
tutores by virtue of any lex, and specially by the Twelve Tables:
accordingly it comprises tutores in the case of intestacy, tutores appointed
by testament, for they were confirmed by the Twelve Tables, and tutores
appointed under any other lex, as the Atilia. Various senatusconsulta
declared in what cases a tutor might be appointed; thus the Lex Julia de
maritandis ordinibus (Papia et Poppaea) enacted that the praetor should
appoint a tutor for a woman or a virgin, who was required to marry by this
law, “ad dotem dandam, dicendam, promittendamve,” if her
legitimus tutor was himself a pupillus: a senatusconsultum extended the
provision to the provinces, and enacted that in such case the praesides
should appoint a tutor; and also that, if a tutor was mutus or furiosus,
another should be appointed for the purposes of the lex. The case above
mentioned of a tutor being given in the case of an action between a tutor
and his ward, is a case of a tutor
moribus
datus; that is, appointed according to customary law. In the
Imperial period from the time of Claudius, tutores extra ordinem were
appointed by the consuls also.
Only
cives or those who had the
jus commercii could be tutores. Thus a person could
not be named tutor in a testament, unless he had the testamentifactio with
the testator, a rule which excluded such persons as peregrini. The Latini
Juniani were excluded by the Lex Junia (Gaius, 1.23). Women could not be
tutores. Filiifamilias could be tutores as well as paterfamilias. The tutela
was a publicum munus, and hence persons were bound to serve when called on,
unless they were under some incapacity or could excuse themselves on some
valid legal ground: grounds of excuse (
excusationes) were age, absence, the being already tutor in other
cases, the holding of particular offices, and others which are enumerated in
the Fragmenta Vaticana (123-247), and by Justinian in his Institutes (1.25).
The power of the tutor was mainly concerned with the property and pecuniary
interests of the pupillus. The custody of the ward's person was generally
assigned by the magistrate to one of his near relations, who might or might
not be the same person as the tutor. The care of the child belonged to the
mother, if she survived (
custodia matrum,
Hor. Ep. 1.1,
22;
Dionys. A. R. 8.51;
Liv. 39.9,
1; Sen.
ad Marc. 24, 1), unless the father had otherwise disposed
in his will. In a case mentioned by Livy (
4.9),
where the mother and the tutores could not agree about the marriage of the
mother's daughter, the magistratus decided in favour of the mother's power
(
secundum parentis arbitrium). But it was
the duty of the tutor to exercise a supervision over the pupillus, and to
see that he was properly educated and cared for. (Cf.
Dig.
26,
7,
12,
3: “Cum tutor non rebus dumtaxat, sed etiam
moribus pupilli praeponatur;”
Dig. 27,
2; Cod. 5, 49.) In
respect of property the tutor's office was “negotia gerere et
auctoritatem interponere,” though only the auctoritatis
interpositio was absolutely essential to the notion of tutela; the
administration
[p. 2.911]of property (
rem
gerere) not belonging to the tutor of mulieres.
Auctoritatem interponere.--A pupillus who was an
infans--that is, below the age of seven--could not perform any legal act. A
pupillus (
major infantia) could do no act by which
he diminished his property without the sanction (
auctoritas) of his tutor, but any act to which he was a party
was valid, so far as concerned the pupillus, if it was for his advantage.
Consequently a pupil could contract obligationes, which were for his
advantage, without his tutor (Gaius, 3.107). Thus the natural act of the
pupillus became, by auctoritatis interpositio of the tutor, a legal act; and
thus the pupillus and his tutor formed one complete person, as to legal
capacity to act. [INFANS; IMPUBES.]
No particular form was required for the expression of the tutor's auctoritas,
but it had to be given by the tutor himself when the pupillus entered into
the transaction which required it (
in ipso
negotio); it could not be transmitted by letter or by a messenger,
and it had to be unconditional (Inst. 1.21, 2;--
Dig.
26,
8,
8;
9,
5). It could, generally
speaking, be withheld by the tutor of an impubes at his discretion.
Auctoritas was necessary in order to give legal effect to any act of a
pupillus, by which he might suffer loss, but a pupillus might acquire rights
for himself without auctoritas (Inst. 1.21, pr.). Thus a pupillus could not
alienate his property without the concurrence of his tutor, but he could
receive property by alienation to him simply by his own act; so too, though
he could not contract an obligation without his tutor's intervention, he did
not require auctoritas in order to bind others by a contract with him. The
incapacity of the pupillus is shown by the following instance:--If his
debtor paid a debt to the pupillus, the money became the property of the
pupillus, but the debtor was not released, because the pupillus might suffer
loss by releasing his debtor unless with the co-operation of his tutor; if,
however, the pupillus afterwards sued for the debt, while still retaining
the benefit of the payment which had been made to him, the praetor allowed
the debtor an exceptio doli (Gaius, 2.84;
Cic.
Top. 11). [IMPUSES.]
As the act which was made valid by the sanction of the tutor was the act of
the impubes, it follows that the auctoritas had no application in the case
of a pupillus altogether incapable of performing an illegal act; and so, as
an infant or person who had not completed his seventh year was thus
incapable, it was not till a pupillus was major infantia that auctoritas
could be given to his acts.
Rem gerere.--The tutor had the administration of
the property of the pupillus (
rem, negotium
gerere), and was bound to exercise this part of his function
according to the best of his ability. It was his duty to prevent the
property of the pupillus from suffering any loss that he could avoid, and to
make such profit from the property as it was fairly capable of. The tutor
was liable to the pupillus not only on account of dolus, but also for such
negligence as he did not show in the management of his own property (
Dig. 27,
3,
1, pr.: “In omnibus, quae fecit tutor, cum facere non
deberet, item in his, quae non fecit, rationem reddet hoc judicio,
praestando dolum, colpam et quantum in rebus suis diligentiam” ).
The obligation between the tutor and the pupillus was one of those arising
quasi ex contractu (Inst. 3.27, 2). By an
oratio of the Emperor Septimius Severus it was enacted that the tutor should
be incapable of alienating praedia rustica and praedia suburbana of the
pupillus, unless under an order of the magistrate; and this rule was
extended to other property of the pupillus, excepting things of little value
and superfluous things (
Dig. 27,
9; Cod. 5, 71).
The principle of allowing the tutor to represent the pupillus in legal
transactions was gradually admitted. If property was conveyed by mancipium
or in jure cessio to a tutor as
negotiorum
gestor of pupillus, the tutor alone acquired legal ownership of
it, but in course of time the praetor gave pupillus
vindicatio utilis for the recovery of it. If property was
conveyed by traditio to tutor on account of the pupillus, the latter
acquired possession of it in the time of Justinian, and so direct ownership
of it. [
DOMINIUM] The tutor
was first allowed to acquire choses in action for the pupillus in case of
the pupillus infans having no slave, the pupillus being allowed to maintain
a right thus acquired by actio utilis: this principle was extended to
pupilli who were at a distance from the tutor, and finally was made
applicable in all cases. It is to be remembered that a pupillus could always
acquire rights through his slaves. A tutor could only bind the pupillus when
authorised to do so by the magistrate. A tutor could maintain actions on
account of his pupillus (Inst. 4.10, pr.; Gaius, 4.82).
In order to secure the proper management of the property of a pupillus or of
a person who was in curatione, the praetor required the tutor or curator to
give security; but no security was required from testamentary tutores,
because they had been selected by the testator; nor, generally, from tutores
appointed by a consul, praetor or praeses, for they were appointed as being
fit persons (Gaius, 1.199).
The tutor might be removed from his office, if he was misconducting himself:
this was effected by the
accusatio suspecti,
which is mentioned in the Twelve Tables (Gaius, 1.182; Dirksen,
Uebersicht, &c. der Zwölf Tafeln,
599-604).
When the tutela came to an end, the actio tutelae directa could be brought
against the tutor by the pupillus for a general account of the property
managed by the tutor, and for its delivery to the pupillus, now become
pubes. If the tutor was condemned in this
action, the consequence was infamia. [
INFAMIA] The Twelve Tables gave the pupillus a special action
against the tutor in respect of fraudulent accounting; and if he made out
his case, he was entitled to double damages. This appears to be the action
which in the Digest is called
actio de rationibus
distrahendis. The tutor could claim to be indemnified for what
he had expended or done in the interest of his pupillus, having the actio
tutelae contraria against his late pupillus for the purpose of enforcing
this liability.
When several tutores were joined in one tutela, the administration might be
committed to one
[p. 2.912]of them--called
tutor gerens, as opposed to
tutor
honorarius. The tutor honorarius was liable, if he did not
exercise a proper supervision over the tutor gerens, in case the loss could
not be recovered from the latter. The tutela was terminated by the death or
capitis deminutio maxima or media of the tutor. A tutor legitimus became
disqualified if he sustained a capitis deminutio minima, which was the case
if he allowed himself to be adopted (Gaius, 1.195; Ulpian,
Fragm. 11, 13), since he thereby ceased to be an agnate of
the pupillus, but capitis deminutio minima had no effect on the position of
a tutor testamentarius or dativus. The tutela ceased by the death of the
pupillus, or by his capitis deminutio of any kind. It also ceased when the
pupillus attained the age of puberty, which in the male sex was fourteen, as
the law came to be determined. [
IMPUBES] In the time of the classical jurists, the tutela might
cease by the abdicatio of the testamentary tutor; that is, when he declared
“nolle se tutorem esse.” Under the law of Justinian the
resignation of a tutor was in no case allowed, unless it was approved by the
magistrate for some cause which appeared to him reasonable.
The tutela of a tutor was terminated, as we have observed, when he was
removed from the tutela as
suspectus, or when
his excusatio was allowed to be
justa; but in
both of these cases a new tutor would be necessary (Gaius, 1.182). The
tutela appears to have been regarded at first as having for its object the
benefit of the tutor rather than that of the pupillus, as being a means of
protecting the family property to which the tutor might succeed: but in
later law the idea of duty (
onus) rather than
that of right attaches to the function. The duty became a public one
(
publicum munus), brought more and more
under the supervision of the magistrate.
The tutela of women who are puberes requires a separate examination. A woman
who was not
in patria potestate or
in manu viri was always under a tutela (
in perpetua tutela), not being capable, like a man
sui juris, of acting as she pleased on
attaining the age of puberty, which was the completion of her twelfth year.
The tutor of a woman who was pubes had not, however, the administration of
her property, as in the case of an impubes; she managed her own affairs, but
the auctoritas of a tutor was required in order to give validity to her acts
in certain cases (Gaius, 1.190; Ulp.
Fragm. 11, 1, 25: cf.
Liv. 34.2, the speech of Cato for the Lex
Oppia). The reasons for this restriction on the capacity of women are given
by Cicero (
pro Muraena, 100.12), by Ulpian
(
Fragm. 11, 1), and by Gaius (1.190); Gaius considers the
usual reasons as to the law being founded on the weakness of the sex as
unsatisfactory, since women above the age of puberty administer their own
property, and the interposition of the tutor is a mere formality. The
original object of the law seems to have been to prevent the alienation of
her property, and so to secure the succession of her agnati or of her gens,
who in early times would always have been her tutores. Gaius remarks (1.193)
that, though in foreign states women were not under the same tutela as under
Roman law, they are generally under a quasi tutela; thus the law of the
Bithynians requires the contracts of a woman to be sanctioned by her husband
or by a son above the age of puberty.
A mulier might have a tutor appointed by her father's testament; or by the
testament of her husband if she was in his power (
mansus). A wife in her husband's manus might receive from his
will the
tutoris optio or right of choosing a
tutor for herself (
tutor optivus) (Gaius,
1.150: cf.
Liv. 39.19,
5), whereby the right of the agnates might be effectually excluded.
According to the law of the Twelve Tables, women who had no testamentary
tutor were in the tutela legitima of their agnati; or, in the case of
freedwomen and of emancipated daughters, in the tutela legitima of the
patronus or of the parens manumissor. The tutela legitima of agnati was
abolished by a law passed under the Emperor Claudius, called the Lex Claudia
(Gaius, 1.157). The tutela of patroni was not included within the Lex
Claudia. The tutela legitima of agnati and patroni over women could be
transferred by in jure cessio, while that of pupilli could not (Gaius,
1.168); but it would seem that it was rather the exercise of the tutor's
right than the right itself which was thus transferred, since it is said
that on the death or capitis minutio of the tutor cessicius, the tutela
reverted to the tutor qui cessit (Gaius, 1.170). A person might become tutor
of a woman subject to a fiducia or trust as to the way in which he should
exercise his right (
tutor fiduciarius).
A tutor dativus was given to women by the magistratus under the Lex Atilia,
when there was no other tutor, or under a senatusconsultum in the absence of
a tutor or in case of a legis actio between a woman and her tutor (Gaius,
1.173, &c.; Ulp.
Fragm. 11). By the Lex Julia, if a
woman was in the legitima tutela of a pupillus, she might apply to the
praetor urbanus for a tutor who should give the necessary auctoritas for the
purpose of making a dotal settlement (Gaius, 1.178; Ulp.
Fragm. 11, 20). The Vestal Virgins were exempt from tutela;
and both ingenuae and libertinae were exempted from tutela by the Jus
Liberorum (Gaius, 1.145, 194); it is to be remembered that a married woman
would be in tutela if she were not
in manu viri
[
MATRIMONIUM].
Octavia, the sister of Caesar Octavianus, and his wife Livia, were released
from tutela by a special enactment (
D. C.
49.318).
The perpetua tutela of women originated and long continued to exist for the
purpose of protecting the agnatic family.
The agnatic tutela was in course of time allowed to be excluded not only by
the testamentary disposition of a paterfamilias, or husband with marital
power, but also by means of juristic contrivances (
Cic. pro Mur. ch. 12). Thus, a woman for the
purpose of escaping from the control of her agnatic tutor would enter into a
fictitious marriage with some one, being conveyed to him by means of
coemptio, with a fiduciary understanding (
coemptio cum
fiduciâ) that her supposed husband--the coemptionator or
purchaser--should at once release her by remancipatio; she was accordingly
remancipated
[p. 2.913]by the coemptionator to some person
of her own choice: this person manumitted her by vindicta [
MANUMISSIO], and became her
tutor fiduciarius (Gaius, 1.114, 115). Thus the woman passed by coemptio
from her own family to another, her agnati losing all claims upon her, and
her tutor fiduciarius might be compelled by the praetor to give his
auctoritas to her acts (Gaius, 1.115; 2.122). The tutor legitimus might
surrender his control of a woman to a tutor cessicius by in jure cessio.
Finally, as we have seen, the agnatic tutela was abolished by the Lex
Claudia, after which, except in the case of patroni and parentes, the
perpetua tutela mulierum only remained a mere form.
The tutela of a woman was terminated by the death of the tutor or that of the
woman; by a marriage by which she came
in manure
viri; by the privilege of children (
jus
liberorum); or by her becoming a Vestal Virgin. A woman had no
right of action against her tutor in respect of his tutela, for he had not
the
negotiorum gestio, or administration of her
property, but only interposed his auctoritas (Gaius, 1.191).
If a woman was in the tutela legitima of a patronus or parens manumissor, the
tutor, Gaius tells us (1.191), could not be compelled to give his
auctoritas, except for very weighty reasons ( “praeterquam si magna
causa interveniat” ). Other tutores could be compelled to give
their auctoritas, which in their case was a mere form. It is probable that
agnatic tutors were in the same position as patroni and parentes,--that is,
they were not compelled to give their auctoritas; but Gaius wrote after the
agnatic tutela had been abolished.
The special cases in which the auctoritas of a tutor was required were, if
the woman had to sue by legis actio or in a legitimum judicium, if she was
alienating a mancipable thing [
DOMINIUM]; a non-mancipable thing she might alienate without the
tutor's sanction (Gaius, 2.80). Gaius (2.47) states that formerly, when a
woman was under agnatic tutela, her mancipable things were not subject to
usucapion, unless she herself delivered possession of them with the
authority of her tutor, and that this was a provision of the Twelve Tables.
In other cases;, if a res mancipi was transferred by tradition, the
purchaser acquired the quiritarian ownership by usucapion [
USUCAPIO]. The passage of
Cicero (
pro Flacc. 34, 84) is in accordance with Gaius; and
another passage (
ad Att. 1, 5), though vaguely expressed, is
not inconsistent with his statement. (See Casaubon's note on the passage.)
She could not manumit without the auctoritas of a tutor (Ulp.
Fragm. 1, 17; compare
Cic. pro
Cael. 29, 68). The auctoritas of a tutor was not
required, in the case of any obligatio by which the woman's condition was
improved, but it was necessary in cases where the woman became bound (Gaius,
1.192, 3.108; Ulp.
Fragm. 11, 27; Cic.
pro
Caecin. 25, 72). So, if a woman wished to promise, the
auctoritas of a tutor was necessary (
Cic. pro
Flacc. 35). As a woman could alienate res nec mancipi
without the sanction of a tutor, she could bind a person to her by lending
money (
mutuum), for by delivery the money
became the property of the receiver.
A payment made to a woman was a release to the debtor; if, however, she did
not receive the money, but affected to release the debtor by acceptilatio,
this was not a valid release to him (
Cic.
Top. 11; Gaius, 2.83, 85, 3.171).
A woman could not make a will without the sanction of her tutor; the rules on
this subject are stated under
TESTAMENTUM If a woman was not subject to a tutor legitimus, but
to a tutor of another kind, the praetor might perhaps in the time of Gaius
give bonorum possessio to such will, although the merely formal requisite of
auctoritas had not been complied with (Gaius, 2.121, 122: cf. 1.194, 195).
It may be questioned whether the auctoritas of a tutor was necessary in order
to enable a woman to marry without passing
in manum
viri (see, however, Ulp. 11, 22;
Cic. Clu.
5,
14); but it seems clear that such
sanction was required in order to enable a woman to effect a confarreatio or
coemptio (cf. Gaius, 1.115).
The tutela mulierum existed at least as late as Diocletian, A.D. 293
(
Vat. Fragm. § 325). There is no trace of it in
the Code of Theodosius, or in the legislation of Justinian. (Gaius,
1.142-200; Ulp.
Fragm. 11, 12; Inst. 1.13-26;
Dig. 26 and 27; Cod. 5, 28-75; Rudorff,
Das
Recht der Vormundschaft; Rein,
Das röm.
Privatrecht, p. 239, &c.; F. Minquet,
Hist. jur.
Rom. de Tut.; S. Szuldrzynski,
de Orig. ac Progr. Tut.
Mul.; Le Fort,
Essai Hist. de la Tutelle; Voigt,
Zwölf Tafeln, 2.110, &c.)
[
G.L] [
E.A.W]