estate of the freedman, and therefore made them tutors, for the patron and his children constituted the family of the freedman. This tutela therefore was called legitima. Now the emancipating ancestor was assimilated to the patron, and was therefore regarded as tutor legitimus. But the children of the emancipating pater-familias were not entitled, like the children of the patron, to succeed to the estate of the emancipated filius-familias, and therefore were not entitled to be tutores legitimi. The Twelve Tables neither directly nor indirectly conferred on the family of the emancipator any right over the emancipated filius-familias -for he was no longer a member of the family. Hence the tutela exercised by the children of the emancipator was not legitima. It arose not from the law, but from the fiduciary contract involved in the forms of emancipation, and hence it was called tutela fiduciaria. And although from the time of Anastasius the brothers of an emancipated filius-familias were entitled to succeed him, still they continued to be tutores fiduciarii, not tutores legitimi: because any right of succession, which did not arise from the Twelve Tables, did not create a tutela legitimi.

To recapitulate. Tutela legitima was of four kinds. In the first place we must distinguish between freedmen who had been emancipated under age and free-born persons under age. 1. The tutor of a freedman under age was his patron, and, after him, his patron's children. 2. As for a free-born filius-familias, who became sui juris by the death of the pater-familias, without emancipation or diminutio capitis, the nearest agnatus was his tutor; but, 3. As to a free-born person under age, who became sui juris by emancipation and by diminutio capitis first, the emancipator was the tutor legitimus; and, 4. After him there was a tutor fiduciarius.

Justinian introduced a change. As he introduced by Nov. 118, a new system of succession, he of course introduced a new system of legal guardianship.

TITLE XX.—OF TUTORS BY THE ATILIAN, JULIAN, AND TITIAN LAWS.

In some cases, the magistrates nominated Tutores: who are generally called by modern writers tutores dativi. These cases are:

Pr. 1. When there was no tutor, testamentary or legitimus, that is appointed by will or by law.

2. When the functions of a testamentary tutor were suspended -when he was to begin his duties after a certain period, or upon a certain event—a tutor dativus was named in the meantime. Thus, when he was named absolutely, a tutor dativus was appointed till the hæres institutus appeared. So, when a tutor was taken prisoner, a tutor

dativus was named, whilst it continued doubtful whether by postliminium the captive tutor would resume his guardianship. In all these cases, the tutor dativus resigned whenever the testamentary tutor appeared, or whenever it became clear that he never would appear, because, e.g., the condition had become impossible; and then the tulela was transferred to the agnati, or other legal tutors (§ 1, 2).

3. When the testamentary tutor was excused or dismissed. In this case, though there never could be a testamentary tutor, recourse was not had to a tutor legitimus, but to one dativus (D. 26. 2. 11. § 1. 2).

§4. The appointment of tutors was not within the ordinary power of the magistrate. This power was exercised under special laws. Who, therefore, were the magistrates having power to name tutors? At first, in Rome, the Prætor urbanus and the majority of the Tribunes (1), by virtue of the lex Atilia (2); in the provinces the Præsides (or governors), by virtue of the lex Julia and Titia, B.C. 32. Later, Claudius conferred the same power on the Consuls, and later still, Antoninus Pius gave it to the Prætors. These magistrates named the tutor, after inquiring into his character and fortune.

§ 4. Even before Justinian's time there was a change in this power of nomination, thus: in Ulpian's time this power was exercised, at Rome, by the præfect of the city (3), or by the Prætor (secundum suam jurisdictionem), each exercising it over those, subject, in this matter, to his jurisdiction. In the provinces it belonged to the governors (Præsides); or to the municipal magistrates, when the property of the pupillus was not large, and when the governor declined to nominate himself, and directed these magistrates to do so.

§ 5. Justinian established the following rule (C. 1. 4. 30): when the property of the pupillus was less than 500 solidi (4) (aureus after the time of Alex. Severus, about 178. 8d.), the defensores civitatis, together with the bishop, and any other publica persona, that is, the magistrates, or juridicus Alexandrinæ civitatis, might, without the governor's order, name a tutor without inquiry; but in this case the tutor must give security, which was dispensed with when he was named by the governor Præses after inquiry (t. xxiv. § 5).

§ 7. Tutors were required to render an account of their administration when they ceased to be tutors, by reason of the pupillus attaining full age; and there was an actio tutela to compel an account.

(1) The ten Tribunes decided nothing, unless they were unanimous; but in order that the impubes might not be left without a tutor, it was thought enough if six them agreed with the Prætor. Pr.

2) The date of this law is uncertain, but must have existed A.U.C. 557, from a passage in Livy, xxxix. 9, as to a liberta.

(3) His jurisdiction extended 100 miles round Rome; the city (strictly) was included within these limits. Representing the Emperor, the Præfectus urbi assumed many of the functions of the Prætor urbanus.

(4) About 4501.

TITLE XXI.—OF THE AUCTORITAS OF TUTORS.

A tutor exercised his functions thus: he either acted by himself without the pupillus, or he acted with the pupillus for the purpose of validating the act by his presence and approbation (1). Tutores, says Ulpian, et negotia gerunt et auctoritatem interponunt.

Pr. There were two periods in pupilage. Until seven years complete the pupillus was an infans: he understood nothing; he did, and could be a party to, no act; the tutor represented him, and had sole management of his affairs. After infancy, the pupillus had a certain understanding (intellectum), but no judgment (animi judicium); he might, therefore, alone, and without his tutor's authority, make his condition better; but he could not, without such authority, make it worse.

The condition of a pupillus was made better when something was acquired by him, or when another had incurred an obligation to him; it was made worse, when something was alienated, or when the pupillus had incurred an obligation to another.

The tutor's authority was requisite for a pupillus to make his condition worse, not because every alienation or obligation incurred was of necessity disadvantageous—if such had been the case the tutor would never have allowed his pupillus either to alienate or bind himself— but because the bare alienation or incurring of an obligation implied. a loss, and because the question whether such loss would be compensated by other advantages, was beyond the pupillus, for it required the exercise of judgment.

Pr. When the pupillus made, without authority, a contract involving mutual obligations, as sale and purchase, hiring and letting, &c., the party contracting with the pupillus was bound, the pupillus was not. For such contracts contain two acts (purchase and sale, hiring and letting); in the one the pupillus is the person to whom another is bound; this act, therefore, which makes his condition better, and requires only apprehension (intellectum), is valid: in the other the pupillus is the person to be bound; this act, therefore, which makes his condition worse, and requires judgment (judicium), is null.-Nevertheless the rule of law was, that no one should enrich himself at the expense of another (D. 50. 17. 206); therefore, if the pupillus would not fulfil his part of the contract, he could not compel the other party to fulfil his. In a sale, e.g., he could not claim the thing sold without paying the price.

(1) The tutor's co-operation in some acts of the pupillus gave rise to the phrase, the tutor is given to the person of the pupillus. This co-operation completed the person of the pupillus by adding to his will a power which it would not other

wise have had. It was therefore to his civil rather than to his physical or moral person that the tutor was given. The education of the pupillus was directed by the magistrate, who decided everything respecting it, the tutor being chargeable with the expense.

And if the other party had executed his part of the contract, in whole or in part, and the pupillus had thereby derived a benefit, he would be liable to the extent of such benefit (B. 2, t. 7).

§ 1. A pupillus, without the tutor's authority, cannot accept an hæreditas (adire hæreditatem), receive it as a trustee (ex fidei commisso) (1), or demand possession of goods, because a man cannot acquire a succession, however valuable, without judgment, in order to estimate the burdens and benefits attached to it.

§ 2. The tutor's authority consisted in his actively co-operating in the act, so as to augment and fill up the persona of the pupillus (augere, auctor fieri); hence it could be given neither before nor after (statim in ipso negotio), nor by an agent (præsens).

We have seen that a pupillus under seven has no power to act at all, and that after seven he is enabled to act only by the aid of a tutor. But this capability of the pupillus personally to co-operate with his tutor did not absolutely prevent the tutor from acting by himself if he thought fit. In some cases however, such as Adrogatio, the enfranchisement of a slave, the acceptance of an hæreditas, the pupillus was required to appear personally.

tutor.

§3. As a tutor could not give his authority in his own cause, it might seem that a pupillus would be unable to maintain a suit against his But this difficulty was overcome in this way. At first the Prætor used to appoint him a tutor (prætorian). Afterwards, they gave him a curator whose functions ended with the suit; and this was more consistent with the rule that a tutor was never appointed for a special business (2).

TITLE XXII.-HOW GUARDIANSHIP WAS ENDED.

Pr. Tutela or Guardianship was ended:-1. By the pupillus reaching puberty, i.c., twelve years complete in the case of women, and fourteen in the case of men. Prior to Justinian, opinions were divided as to males: the Sabinians determined puberty by the physical development

(1) The hæreditas passed under the Civil Law. The bonorum possessio was the right which the Prætor granted to a man to put himself in and to hold possession of an estate (successio), to which he was not entitled by the Civil Law (B. 3, t. 9). Hæreditas fidei commissaria was an estate (successio) received by a Fidei-commissarius (cesti que-trust) from a fiduciarius (trustee), whom the testator had charged

to transfer it.

(2) By Nov. 72, t. 1, no creditor or debtor of the pupillus, except the mother, could be a tutor; and if a party after becoming tutor became his creditor or debtor, a curator was to be added during the whole guardianship. Hence the special curator alluded to in the text could scarcely ever be required.

of the body; the Proculeians by age alone; Priscus insisted on both conditions. But Justinian (C. 5. 60. 3) held with the Proculeians, as more consistent with decency. 2. (§ 4, § 1.) By the death, or any, even the minima, diminutio capitis of the pupillus; for a tutor was given only to one sui juris, and an impubes sui juris, who suffered even the minima diminutio capitis, of course became alieni juris. 3. By the tutor's death (§ 3). 4. By the tutor's maxima or media diminutio capitis (§ 4); for every tutor must be capable of holding a public office, and therefore must be a citizen. The only effect of a tutor suffering the minima diminutio capitis was to put an end to a tutela legitima agnatorum (§ 4), for that was the only guardianship dependent on the family-tie, which, of course, was broken by the tutor leaving the family. 5. As to testamentary tutors, they ceased when the period expired, or the condition happened which limited their tutela (§ 5). As to tutores dativi, they ceased when the period expired or the condition happened which suspended the entrance of the testamentary tutors (§ 2) into office. 6. (§ 6.) By excuses, made by tutors and admitted by the magistrate, or by a sentence of dismissal (t. 25, 26).

TITLE XXIII.-OF CURATELA OR CURATORSHIP.

Amongst persons sui juris, those subject to curatela were as follows:1. Impuberes, whose tutors were unfit for their duty, or who had been excused for a time from the tutela; for if a person had one tutor, he could not have a second (§ 5). 2. Adolescentes (boys over fourteen, girls over twelve, but in either case under twenty-five). (Pr.) 3. Furiosi and prodigi (spendthrifts) under interdict, though above twenty-five (§ 3); lunatics and persons suffering under incurable disease (§ 4), or deaf or dumb.

§ 6. There were cases in which a curator could not be appointed, but in which, nevertheless, the tutor might find himself unequal, from ill health or other cause, to the management of the affairs of his pupil. In such cases the Prætor would appoint an agent (actorem), who should manage at the risk of the tutor; but such agent was indispensable only when the pupil was absent or an infant under seven, for otherwise he might himself, with the tutor's authority, appoint a procurator.

Every adolescens was not compelled to have a curator. For, generally, persons of age were deemed capable of managing themselves and their property, and therefore could not be compelled to have curators; but they were granted, when applied for, to those who felt incapable by themselves of managing their property. There were, however, three cases in which curators were forced upon adolescentes: 1. When they were parties to a