De Mvliervm Tvtela. (2)

§ 189. The wardship of children under the age of puberty is part of the law of every state, for it is a dictate of natural reason that persons of immature years should be under the guardianship of another, in fact there is scarcely any state which does not permit a parent to nominate a testamentary guardian for his children under the age of puberty, though, as we have before stated, only citizens of Rome appear to be invested with parental power.

§ 190. But why women of full age should continue in wardship there appears to be no valid reason; for the common allegation, that on account of levity of disposition they are readily deceived, and that it is therefore right that they should be controlled by the sanctionary power of a guardian, seems rather specious than true, for women of full age administer their own property, and it is a mere formality that in some transactions their guardian interposes his sanction; and in these cases he is frequently compelled against his own will to give his sanction.

§ 191. Accordingly, a woman has not the tutelary action against her guardian; whereas since the guardians of youthful wards, both male and female, administer their wards’ property, they are liable to be sued on account of such administration when the ward has come to the age of puberty.

§ 192. The statutory guardianship of patrons and parents is not purely ineffective, as they cannot be compelled to give their sanction to a will or to the alienation of mancipable property, or to the undertaking of obligations, unless there are very weighty reasons for the obligation or the alienation; but this rule is in their own interest as heirs of intestacy, and is designed to prevent their loss of the estate by testamentary disposition, or the diminution of its value by debt or by alienation of a considerable portion.

§ 193. In other countries, though not under the same tutelage as at Rome, women are generally subject to a quasi tutelage: for instance, the law of Bithynia requires the contract of a woman to be sanctioned by her husband or by a son above the age of puberty.

As women were capable of administration, the functions of the guardian, which in the case of infants were either administrative or sanctionative, in the case of women were confined to sanctioning. Pupillorum pupillarumque tutores et negotia gerunt et auctoritatem interponunt: mulierum autem tutores auctoritatem dumtaxat interponunt, Ulp. 11, 25. It is transparent that the wardship of women after full age was not designed to protect their own interests, but those of their heirs apparent, their agnates. Originally the authorization of the guardian was not sufficient to validate the will of an independent woman: it was necessary that she should first break the ties of agnation, and separate from her family by means of a coemption (with her guardian’s sanction) and subsequent remancipation and manumission. She then, with the sanction of the manumissor, in his character of fiduciary guardian, could make a valid will. In the time of Gaius, Hadrian having abolished the necessity of coemption, to make a valid will an independent woman only required the sanction of her guardian, 2 § 112, and Claudius, as we have seen, had put an end to agnatic guardianship, § 171.

When a woman was liberated from the administrative control of her guardian, and the guardian had no longer any interest in the succession to her property, the simplest course would have been to declare her dispositions valid without his sanction—to declare her no longer a ward. But with characteristic conservatism of forms, Roman law, to avoid the open change, declared the auctoritas still necessary, but made it compulsory instead of voluntary—gave the ward a power of extorting it from the guardian, 2 §§ 80-85. So the act whereby a testamentary heir accepts an inheritance was originally absolutely voluntary: but when trusts (fidei commissa) were introduced, and the heir as trustee or fiduciarius by groundlessly refusing to make the necessary aditio, which in this case was the merest form, could produce intestacy, and thus deprive the beneficiary, fidecommissarius, or cestui que trust of the provision destined for him by the bounty of the testator: instead of declaring the aditio of the heres unnecessary to the acquisition of the fortune by fideicommissarius; or that in such a case the beneficiary should be deemed to be a direct substitutus of the heres; or that the vexatious refusal of the heres should be deemed to be an aditio and restitutio; the legislator ordained that the heres should be compelled to make aditio in order to complete the title, 2 § 258, comm. Again, the terms of the security given by the guardian (rem pupilli salvam fore) against dilapidation of the estate of the ward made the responsibility of the guardian depend on his actual administration; so that he was not responsible if the estate went to ruin in consequence of his total abstention from the performance of his duties. To protect the ward against this contingency, instead of altering the formula of the satisdatio, and making the liability of the guardian depend on his appointment and not on his acting; the law compelled him to proceed to some act of guardianship, in order to bring him under the unchanged terms of his security; Dig. 46, 6, 4, 3. In all these and other cases a compulsory act was substituted for a voluntary act for the sake of giving the law an outward appearance of continuity. At last, at some period before the epoch of Justinian, the tutelage of women above the age of puberty had ceased in form as well as in substance, and no sanction of a guardian, whether voluntary or compulsory, was required.

It is to be observed, that as women were gradually enfranchised from their disabilities, they also forfeited some of their original privileges. It was a rule of the administration of justice that while error of fact might be pleaded to defend a person against the consequences of his own acts or omissions, no one should be allowed to allege an error of law, Dig. 22, 6, 9 pr. An exception however was made in favour of minors, of soldiers, of the utterly uneducated (rustici), and of women. Against their ignorance of rules of law, particularly those rules of jus civile which are not, like rules of jus gentium or naturale, the almost self-evident dictates of reason and common sense, they were relieved by a branch of the praetor’s extraordinary jurisdiction, called in integrum restitutio, a power of cancellation and rescission, in cases of manifest collision between law and equity; §§ 197-200, comm. This privilege of women was partially abrogated by a constitution of the Emperor Leo, a. d. 472; Cod. 1, 18, 13. ‘To prevent the indiscriminate revocation by women of all their contracts on the ground of omission of error, be it enacted, that ignorance of law, whereby a woman is damnified in her right or property, shall only be a title to relief in those cases where previous statutes have sanctioned such relief.’

From § 189 it might appear that Gaius referred the institution of guardianship to the code of jus gentium. We have, however, quoted from the Institutes, §§ 142, 154, comm., a passage which ascribes it to jus civile: and, indeed, no institution confined in its operation almost entirely to cives, can be supposed to belong to jus gentium or natural law. Moreover, the law of guardianship has been most variable, not only if we look to different countries, but also if we look at different periods in the same country; and the praetor or chancellor or other authority that has had the supervision of guardians has always exercised a great latitude of discretion; features which again forbid us to ascribe the rules of wardship to any comparatively immutable code of nature. Tutela was in fact an old Roman institution, by which the gens or familia maintained control in its own interest over its weaker members, who were not subject to patria potestas. It is possible that this control was at first exclusively exercised by the gens, in whom the ownership of all land occupied by the gentiles may have been vested, and that agnatic as well as testamentary guardianship was first instituted by the law of the Twelve Tables, whereby patricians and plebeians were put on an equality in respect of private rights. That the gens was in the habit of taking charge in some way of lunatics and insane persons we know from the words of the Twelve Tables, which have come down to us—‘Si furiosus exit, ast ei custos ne exit, adgnatûm gentiliumque in eo pecuniaque eius potestas est.’ Cf. Muirhead, Roman Law, §§ 26, 28.