De Cessicia Tvtela. (2)

Statutory guardians, whether agnates or patrons, and manumitters of free persons, are permitted to transfer the guardianship of a female ward by surrender before a magistrate; the guardianship of a male ward is not allowed to be transferred, because it is not considered onerous, being terminated by the ward’s attaining the age of puberty.

§ 169. The surrenderee of a guardianship is called a cessionary guardian.

§ 170. On his death or loss of status the guardianship reverts to the surrenderor, and on the surrenderor’s death or loss of status it is devested from the cessionary and reverts to the person entitled after the surrenderor.

§ 171. As far, however, as agnates are concerned, in the present day there is no such thing as cessionary guardianship, for agnatic guardianship over female wards was abolished by the lex Claudia.

§ 172. Fiduciary guardians, according to some, are also disabled from transferring their guardianship, having voluntarily undertaken the burden; but although this is the better opinion, yet a parent who has mancipated a daughter, granddaughter, or great-granddaughter, with a condition of remancipation to himself, and manumitted her after remancipation, should be excepted from the rule, for he is ranked with statutory guardians, and has the same privilege as the patron of a manumitted slave.

§ 164 a. As in default of agnates the inheritance by the law of the Twelve Tables devolved on the gens it may be inferred by the reasoning adopted in § 165 that the guardianship passed to it also. So it is probable that at the beginning of the lacuna Gaius made mention of the statutory guardianship of the Gentiles, and that this is the passage on the subject referred to in 3, 17. As to the nature of the gens, see Introduction.

Cf. §§ 115, 175, 195 a.

It seems anomalous that a Latin, i.e. a non-civis, should have been a subject of wardship: for as tutela is an institute of jus civile (§§ 142, comm., 189), i.e. jus civium, we should have expected that, as in the case of patria potestas, both pater and filius must be cives Romani, § 128, so here both parties, the ward as well as the guardian, must of necessity be cives Romani. The anomaly, however, was expressly enacted by the lex Junia: which further departed from the law of the Twelve Tables by separating the guardianship from the right of succession; for it gave the guardianship to the person who before the manumission had been quiritary owner, but the right of succession to the person who had previously been bonitary owner. Latinus was not only capable of being a ward, but also of being a guardian, Fragmenta Vaticana, 193; that is, though he was incapable of being a testamentary guardian, § 23, he could, it would seem, be made a tutor dativus, that is, appointed by a magistrate, § 185.

In later Roman law, when the interest of the ward and not that of the agnates was principally regarded, guardianship became inalienable. Similarly in English jurisprudence guardianship is said not to be capable of assignment or transfer, because it is not a right but a duty.