TU′TOR. The difference between a Tutor and Tutela, and Curator and Curatio or Cura, is explained in the article Curator. In the Roman system there might be persons who were under no potestas, and had property of their own, but by reason of their age or sex required protection for their own interest, and for the interest of those who might be their heredes. This protection was given by the tutela to Impuberes and women.
A Tutor derived his name a "tuendo" from protecting another (quasi Tuitor). His power and office were "Tutela," which is thus defined by Servius Sulpicius (Dig. 26 tit. 1 s1): "Tutela est vis ac potestas in capite libero ad tuendum eum qui propter aetatem suam (sua) sponte se defendere nequit jure civili data ac permissa." After the word "suam" it has been suggested by Rudorff that something like what follows has been omitted by the copyists: "eamve quae propter sexum," a conjecture which seems very probable. Tutela expresses both the status of the Tutor and that of the person who was In Tutela. The tutela of Impuberes was a kind of Potestas, according to the old law: that of Mulieres was merely a Jus.
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 the 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 in case they were marriageable (nubiles), that is above twelve years of age. 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 the Jus Liberorum under the Lex Julia et Papia Poppaea. A man could only appoint a Tutor for his grandchildren, in case 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 life-time. 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 choose (and consequently change) her tutor any number of times: she who had the angusta optio was limited in her choice to the number of times which the testator had fixed. [Testamentum.]
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. I.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 were Tutores Dativi: those who were chosen under the power given by a will were Tutores Optivi (Gaius, I.154).
If the testator appointed no tutor by his will, the tutela was given by the Twelve Tables to the p1177 nearest Agnati, and such Tutores were called Legitimi. The nearest Agnati were also the heredes in case of the immediate heredes of the Testator dying intestate and without issue, and the tutela was therefore a right which they claimed as well as a duty imposed on them. Persius (II.12) alludes to the claim of the Tutor as heres to his pupillus. A son who was pubes, was the legitimus tutor of a son who was impubes; and if there was no son 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. 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, III.17, and I.164). 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, I.165).
If a free person had been mancipated to another either by the 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, I.166 with Ulp. Frag. tit. 11 s5). [Emancipatio; Fiducia.]
If an impubes had neither a tutor Dativus 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; in the provinces in such cases a tutor was appointed by the Praesides under the provisions of the Lex Julia et Titia. [ 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 so long as there was no heres; but the power of such tutor ceased as soon as there was a tutor under the testament, that is, as soon as there was a heres to take the hereditas. 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.
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 a 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. tit. 11.
Ulpian's division of Tutores is into Legitimi, Senatusconsultis constituti, Moribus introducti. His legitimi tutores comprehend all those 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 tutor Moribus datus. In the Imperial period from the time of Claudius tutores extra ordinem were appointed by the consuls also.
Only those could be Tutores who were sui juris. 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, I.23). Women could not be Tutores. Many persons who were competent to be Tutores, might excuse themselves from taking the office: these grounds of excuse (excusationes) were, among others, age, absence, the being already Tutor in other cases, the holding of particular offices and other grounds which are enumerated in the Fragmenta Vaticana (123‑247). In the system of Justinian the tutela is viewed as a Publicum munus.
The power of the Tutor within respect to the property and pecuniary interests, not the person of the Pupillus, and the passage of the Twelve Tables which gives or confirms to a testator the power of disposing of his property, uses the phrase, Uti legassit super pecunia tutelave suae rei, that is the Tutela of the property. It was not absolutely essential to the notion of Tutela that the Tutor should have the administration of property; and he had it not in the case of Mulieres. It might happen that the Tutores from their nearness of blood and other causes might have the guardianship of the Impubes; but then the protection of the property of the Impubes was the special office of the Tutor, and the care of the infant belonged to the mother, if she survived (custodia matrum, Hor. Ep. I.1.22). In a case mentioned by Livy (IV.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). As to the later law, see Dig.27 tit. 2 s1 § 6.
A pupillus could do no act by which he diminished his property, 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 pupillus could contract obligationes, which were for his advantage, without his Tutor (Gaius, III.107). The Tutor's office was "negotia gerere et auctoritatem interponere." 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. No particular form was required for the expression of the tutor's auctoritas, and his presence, when the act was done by the pupillus, p1178 was enough, if he made no opposition to it (Ulp. Frag. tit. 11 s25). The Negotiorum Gestio in which the Tutor acted alone took place when the Pupillus was an Infans, or absent, or Furiosus: it was his duty to preserve and improve the property and to do all necessary acts for that purpose. When the Pupillus was no longer Infans, he could do various acts with the Auctoritas of his Tutor: the auctoritas was the consent of the Tutor to the act of the Pupillus, which was necessary in order to render it a legal act. Thus it was a rule of law that neither a woman nor a pupillus could alienate a Res mancipi without the auctoritas of a Tutor: a woman could alienate a Res nec mancipi without such consent, but a pupillus could not (Gaius, II.80). The incapacity of the pupillus is best 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 a pupillus could not release any duty that was due to himself without the auctoritas of his Tutor, for he could alienate nothing without such auctoritas, and to release his debtor was equivalent to parting with a right. Still if the money really became a part of the property of the pupillus, or, as it was expressed according to the phraseology of the Roman Law, si ex ea pecunia locupletior factus sit, and he afterwards sued for it, the debtor might answer his demand by an Exceptio doli mali (Gaius, II.84; Cic. Top. 11). The subject of the incapacity of Impuberes and the consequent necessity of the auctoritas of a Tutor is further explained in the articles Impubes and Infans.
The tutela was terminated by the death or capitis deminutio maxima and media of the Tutor. The case of a Tutor being taken prisoner by the enemy has been stated (Gaius, I.187). A legitimus Tutor became disqualified to be Tutor legitimus if he sustained a capitis deminutio minima, which was the case if he allowed himself to be adopted (Gaius, I.195; Ulp. Frag. tit. 11 s13); but this was not the case with a testamentary Tutor. The tutela ceased by the death of the pupillus or pupilla, or by a capitis deminutio, as for instance the pupilla coming in manum viri. It also ceased when the pupillus or pupilla attained the age of Puberty, which in the male sex was fourteen and in the female was twelve. [Impubes.] The tutela ceased by the abdicatio of the testamentary Tutor, that is, when he declared "nolle se tutorem esse." The Tutor legitimus could only get rid of the Tutela, in such cases as he could get rid of it, by In jure cessio, a privilege which the Testamentary tutor had not. The person to whom the tutela was thus transferred was called Cessicius Tutor. If the Cessicius Tutor died, or sustained a Capitis deminutio, or transferred the tutela to another by the In jure cessio, the tutela reverted to the legitimus tutor. If the legitimus tutor died, or sustained a capitis deminutio, the cessicia became extinguished. Ulpian adds (Frag. tit. XI s.8): "as to what concerns adgnati, there is now no cessicia tutela, for it was only permitted to transfer by the In jure cessio the tutela of females, and the legitima tutela of females was done away with by a Lex Claudia, except the tutela patronorum." The power of the legitimus tutor to transfer the tutela, is explained when we consider what was his relation to the female. [Testamentum.]
The tutela of a tutor was terminated, 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, I.182).
The tutor, as already observed, might be removed from his office, if he was misconducting himself: this was effected by the Accusatio suspecti, which is mentioned in Twelve Tables (Gaius, I.182; Dirksen, Uebersicht, &c. der Zwölf Tafeln, 599‑604).
The Twelve Tables also gave the pupillus an action against the Tutor in respect of any mismanagement of his property, and if he made out his case, he was entitled to double the amount of the injury done to his property. This appears to be the action which in the Digest is called Rationibus distrahendis, for the settlement of all accounts between the Tutor and his Pupillus. There was also the Judicium tutelae, which comprehended the Actio tutelae directa and Contraria, and like the Actio distrahendis rationibus could only be brought when the Tutela was ended. The Actio tutelae directa was for a general account of the property managed by the Tutor, and for its delivery to the pupillus now become Pubes. The tutor was answerable not only for loss through dolus malus, but for loss occasioned by want of proper care. This was an action Bonae fidei and consequently In incertum (Gaius, IV.62). If the tutor was condemned in such a judicium, the consequence was Infamia. [Infamia.] The tutor was entitled to all proper allowances in respect of what he had expended or done during his management of the property of the pupillus. The Tutor had the Actio tutelae contraria against the pupillus for all his proper costs and expenses; and he might have also a Calumniae judicium, in case he could show that the pupillus had brought an action against him from malicious motives.
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 Curatores appointed by a Consul, Praetor or Praeses, for they were appointed as being fit persons (Gaius, I.199).
The Tutela of women who are puberes, requires a separate consideration. If they were not in Potestas or In Manu, yet they were under a Tutela.
It was an old rule of Roman Law that a woman could do nothing "sine auctore," that is without a tutor to give to her acts a complete legal character (Liv. XXXIV.2, the speech of Cato for the Lex Oppia). The reasons for this rule are given by Cicero (pro Murena, c12), by Ulpian (Frag. tit. 11 s1) and by Gaius (I.190); but Gaius considers the usual reasons as to the rule being founded on the inferiority of the sex, as unsatisfactory; for women who are puberes (perfectae aetatis) manage their own affairs, and in some cases a tutor must interpose his auctoritas (dicis causa), and frequently he is compelled to give up his auctoritas by the Praetor (Gaius, I.190). Ulpian also observes (Frag. tit. 11 s25): "in the case of pupilli and pupillae, tutores both managed their affairs and give their auctoritas (et negotia gerunt et auctoritatem interponunt); but the tutores of women (mulieres, that is women who are puberes) only give their auctoritas." p1179 There were other cases also in which the capacity of a Mulier was greater than that of a Pupillus or Pupilla. The object of this rule seems to have been the same as the restriction on the Testamentary power of women, for her Agnati who were a woman's Legitimi Tutores were interested in preventing the alienation of her property.
A Mulier might have a Tutor appointed by her father's Testament; or by the Testament of her husband in whose hand she was (tutor dativus). She might also receive from her husband's will the Tutoris Optio (tutor optivus). Women who had no testamentary Tutor, were in the tutela of their Agnati, until this rule of law was repealed by a Lex Claudia, which Gaius (I.157) illustrates as follows: "a masculus pubes has his frater pubes or his patruus for his tutor; but women (faeminae) cannot have such a tutor." This old tutela of the Twelve Tables (legitima tutela) and that of manumissores (patronorum tutela) could be transferred by the In jure cessio, while that of pupilli could not, "being," as Gaius observes, "not onerous, for it terminated with the period of puberty." But, as already suggested, there were other reasons why the Agnati could part with the tutela, which in the case of Patroni are obvious. The tutela of Patroni was not included within the Lex Claudia. The Tutela fiduciaria was apparently a device of the lawyers for releasing a woman from the tutela legitima (Cic. pro Murena, c12); though it seems to have been retained, after the passing of the Lex Claudia, which took away the tutela of Agnati over women, as a general mode by which a woman changed her Tutor (Gaius, I.115). To effect this, the woman made a "coemptio fiduciae causa;" she was then emancipated by the coemptionator to some person of her own choice: this person manumitted her by Vindicta, and thus became her Tutor fiduciarius. Thus the woman passed from her own familia to another, and her Agnati lost all claims upon her property, and her Tutor fiduciarius might be compelled by the Praetor to give his auctoritas to her acts (Gaius, I.190, II.122).
A tutor dativus was given to women under the Lex Atilia, when there was no tutor; and in other cases which have been already mentioned (Gaius, I.173, &c.; Ulp. Frag. tit. 11). The Vestal Virgins were exempt from tutela; and both Ingenuae and Libertinae were exempted from tutela by the Jus Liberorum (Gaius, I.145, 194). Octavia, the sister of Caesar Octavianus, and his wife Livia, were released from Tutela by a special enactment (Dion Cass. XLIX.38). The tutela of feminae was determined by the death of the Tutor, or that of the woman; and by her acquiring the Jus Liberorum, either by bearing children, or from the Imperial favour. The abdicatio of the Tutor, and the In jure cessio (so long as the In jure cessio was in use) merely effected a change of Tutor.
Mulieres differed from pupilli and pupillae in having a capacity to manage their affairs, and only requiring in certain cases the Auctoritas of a Tutor. If the woman was in the legitima tutela of patroni or parentes, the Tutores could not be compelled, except in certain very special cases, to give their auctoritas to acts which tended to deprive them of the woman's property, or to diminish it before it might come to their hands (Gaius, I.192). Other Tutores could be compelled to give their auctoritas. The special cases in which the auctoritas of a Tutor was required were, if the woman had to sue "lege," or in a legitimum judicium, if she was going to bind herself be a contract, if she was doing any Civil act, or permitting her freedwoman to be in contubernium with the slave of another person, or alienating a Res Mancipi. Among Civil Acts (civilia negotia) was the making of a Testament, the rules as to which are stated in the article Testamentum. Libertae could not make a will without the consent of their Patroni, for the will was an act which deprived the Patron of his rights (Gaius, III.43) as being a Legitimus tutor. Gaius mentions a Rescript of Antoninus, by which those who claimed the bonorum possessio secundum tabulas non jure factas, could maintain their right against those who claimed it ab intestato. He adds, this Rescript certainly applies to the wills of males, and also of feminae who had not performed the ceremony of Mancipatio or Nuncupatio; but he does not decide whether it applies to the testaments of women made without the auctoritas of a tutor; and by tutor he means not those who exercised the legitima tutela of parents or Patroni; but Tutores of the other kind (alterius generis, compare II.122 and 1.194, 195) who could be compelled to give their auctoritas. It would be a fair conclusion, however, that a woman's will made without the auctoritas of such tutores, ought to be valid under the Rescript.
A payment made to a mulier was a release to the debtor, for a woman could part with Res nec mancipi without the auctoritas of a Tutor: 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, II.83, 85, III.171). She could not manumit without the auctoritas of a tutor (Ulp. Frag. tit. I s17; compare Cic. pro M. Coel. c29). Gaius (II.47) states that no alienation of a Res Mancipi by a mulier in agnatorum tutela was valid unless it was delivered with the auctoritas of a Tutor, which he expresses by saying that her Res Mancipi could not otherwise be the object of Usucapion, and that this was a provision of the Twelve Tables (II.47). In other cases, if a Res Mancipi was transferred by tradition, the purchaser acquired the Quiritarian ownership by Usucapion [Usucapio]; but in the case of a woman's Res Mancipi, the auctoritas of the Tutor was required in order that Usucapion might be effected. In another passage (II.80) Gaius observes that a woman cannot alienate her Res Mancipi without the auctoritas of her tutor, which means that the formal act of mancipatio is null without his auctoritas; and such act could not operate as a traditio for want of his auctoritas as appears from the other passage (II.47). The passage of Cicero (pro Flacco, c34) is in accordance with Gaius; but another (ad Att. I.5) is expressed so vaguely, that though the explanation is generally supposed to be clear, it seems exceedingly doubtful, if it can be rightly understood. The possibility of Usucapion, when there was the auctoritas of the Tutor, appears from Gaius; but it does not appear why Cicero should deny, generally, the possibility of Usucapion of a woman's property, when she was in Legitima Tutela. The passage, however, is perfectly intelligible on the supposition of there having been a transfer without the auctoritas of a Tutor, and on the further supposition of Cicero thinking it unnecessary to state p1180 the particular facts of a case which must have been known to Atticus (see Casaubon's note on Cic. ad Att. I.5).
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, I.192, III.108; Ulp. Frag. tit. 11 s27; Cic. pro Caecin. 25). If the woman wished to promise a Dos, the auctoritas of a Tutor was necessary (Cic. pro Flacc. 35). 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 in the case of a Dos constituenda (Gaius, I.178; Ulp. Frag. 11 tit. 20). As a woman could alienate Res nec mancipi without the consent of a Tutor, she could contract an obligation by lending money, for by delivery the money became the property of the receiver. A senatusconsultum allowed a woman to apply for a Tutor in the absence of her Tutor, unless the Tutor was a Patronus; if he was a Patronus, the woman could only apply for a Tutor in order to have his auctoritas for taking possession of an hereditas (ad hereditatem adeundam) or contracting a marriage.
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 manum viri; by the privilege of children (jus liberorum); by abdicatio, and also by the in jure cessio, so long as the Agnatorum tutela was in use: but in these two last cases there was only a change of Tutor.
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).
The tutela mulierum existed at least as late as Diocletian, A.D. 293 (Vat. Frag. § 325). There is no trace of it in the Code of Theodosius, or in the legislation of Justinian.
(The most recent and the most complete work on the Roman Tutela is said to be by Rudorff (Das Recht der Vormundschaft, 1832‑1834), the substance of which appears to be given by Rein, Das Röm. Privatrecht, p239, &c.; Gaius, I.142‑200; Ulp. Frag. XI, XII; Inst. 1 13‑26; Dig. 26 and 27; Cod. 5 tit. 28‑75).
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