Report No. 83
II. Roman Law
Significance.- Before we deal with the history of legislation in England, it would be appropriate to refer briefly to certain interesting features of Roman law. Much of the modem law of guardianship owes its genesis-if not in the content, at least in its concepts to the Roman law. For example, the classification of guardians into legal, testamentary and certificated guardians, which we find in modern legal systems, has a striking parallel in the scheme of the Roman law relating to tutela. So have the topics of powers of guardians, legal safeguards and many other matters. The very expression "minor" is ultimately derived from the phraseology of Roman law.
Patria potestas and development of guardianship.- In Roman law, by virtue of patria potestas, the father was not only the head of the family, but had extensive powers. "Children begotten in lawful wedlock are in the power of the parents."1 Guardianship in Roman law began as a projection of the patria potestas into the future, with a view to protection of the family property after the death of the testator.2 Protection of the person came later, and did not assume importance until the institution of the "dative guardian" (guardian appointed by the Magistrate) came into prominence.
Concept of Tutela.- There were two kinds of guardianship, distinguished as tutela and cura (curatio) in Roman law.
Tutela was defined as "a right and power exercised over a free person who, on account of tender years, cannot take care of himself, given and allowed by civil law".3
Where the father was alive, patria potestas was in operation and the question of tutela did not arise, in general. The father could also make a testamentary appointment of guardianship. In certain situations, where the above types of guardians did not exist certain Roman Magistrates had power to appoint magisterial guardians (tutela dativa). In the city of Rome, there was a special praetor for the purpose.
Roman law as to puberty.- Tutela was integrally linked with puberty. In the theory of the Roman law, a person came in the full enjoyment of his personal and proprietary rights on the attainment of puberty (14 years for boys and 12 years for girls). Upto the age of puberty, his or her interests were looked after, and protected, by the "tutor" in the absence of the father. The essence of tutela consisted in the assistance which the tutor had to give to enable juristic acts to be performed by the person below age. This was because of the doctrine that as such persons were not legally independent persons (sui furls), their transactions required the approval of a guardian (tutor).4
Persons above puberty.- Tutela ceased at puberty, but certain other developments relevant to the protection of persons who had attained puberty should be noted. By an "interdict", the Praetor could nullify transactions into which a person under 25 had entered because of his lack of business sense.5
Statutory provisions as to persons above puberty.- An early statute allowed persons above the age of puberty (14 for males and 12 for females as stated), and below the age of 25 years, to be placed under the temporary control of curators, without whose consent certain alienations of property could not be made. At a later date, Emperor Marcus Aurelius initiated the practice of allowing the minor to get a permanent curator appointed.6
The parallel institution of cura minorium was thus developed, to save young persons from the consequences of their own lack of judgment at an age over puberty. This was meant for persons below 25.7 (Minor XXV Anniis). In the beginning, the praetor exercised certain powers in individual cases to prevent overreaching of the minor. Later, a curator was appointed on the minor's application.8 In later law, the distinction between tutor and curator was progressively blurred.
Tutela in Roman law compared with present English doctrine.- The tutela impuberum (upto puberty) in the classical law corresponds broadly to the English concept of guardianship of infants, but its original purpose was somewhat different from the modern one of guardianship. Modern guardianship is concerned exclusively with the interest of the ward. Primitive tutela was concerned more with the rights of the guardian.9
Right of guardianship.- As to the persons who could be guardians, the earlier rule10 in Roman law was that the nearest male agnate was the guardian in the case of a person under puberty (11 for males, 12 for females, as already stated), if the minor was not under patria potestas.11 Later cognates were substituted by Justinian.12 Being based on a rule of law, this guardianship was called tutela legitima-an expression derived from the lex of the Twelve Tables (450 B.C.). But the father could appoint a testamentary guardian-tutor testamentarius-and in later times, failing both of such guardians, a magistrate would appoint a tutor.
Women could not be "tutors" in Roman law. In fact, they themselves had to be under a "tutor13 (if they were not under patria potestas), except in certain special cases (e.g. vestal virgins). This position slowly underwent modification and was abolished in 410 A.D.
Provisions for protection of wards.- The Roman law had many provisions for protecting wards against maladministration by, or misconduct of, tutors. Any person other than the ward could lake proceedings for the removal of a tutor on the ground of misconduct-a provision originating in the Twelve Tables.
After the termination of guardianship, the ward or his heirs could file an action for liquidation of accounts and could claim double damages against a tutor who had been guilty of embezzlement-also a provision dating from the Twelve Tables.14 In the later Republic, a more general remedy called the actio tutelae could lie after the termination of the guardianship.
Security.- Guardians were sometimes required to furnish security, and this security could be demanded even From legal guardians in appropriate cases.15 If the Magistrate, in a case requiring security, failed to take it, he exposed himself to a subsidiary action for consequential damages.16 The tutor had to make an inventory of the estate of the pupil and his own property was subject to a general "hypothec"-a charge which law created in favour of a pupil or a minor over the whole of the estate of the tutor or curator.17
Lunatics.- The Roman law had also a provision for the appointment of curators of lunatics, as well as an institution for the guardianship of the spendthrift (cura prodigi)18 The latter institution is understood to be still in force in the civil law system in some countries. By the law of the Twelve Tables, mad men (juriosi) were placed under the curatorship of the nearest agnate.
1. Justinian Institutes, Book 1, title 9, section 86.
2. Lee Elements of Roman Law, (1955), p. 91, para. 137.
3. Servius (Consul B.C. 51, First Commentary on the Edict), quoted by Justinian.
4. Encyclopaedia Americana-Roman Law-Law of Persons-Guardianship.
5. Derrett Introduction to Legal Systems, 1968, p. 25.
6. Lee Elements of Roman Law, (1955), p. 93.
7. Justinian, Institutes, Book 1, Title 23, sections 139-141.
8. Nicholas Roman Law; (1975 reprint), pp. 93-94.
9. Nicholas Roman Law, (1975 reprint), p. 90.
10. Nicholas Roman Law, (1975 reprint), p. 90.
11. Encyclopaedia Britannica-Roman Law-Law of Persons-Guardianship.
12. Lee Elements of Roman Law, (1955), p. 87, para. 128.
13. Nicholas Roman Law, (1975 reprint), p. 95.
14. Lee Elements of Roman Law, (1955), p. 90, para. 136.
15. Lee Elements of Roman Law, (1955), p. 90, para. 136, item 4.
16. Lee Elements of Roman Law, (1955), pp. 90-91, para. 136, item 4.
17. Lee Elements of Roman Law, (1955), p. 177, para. 263 and p. 91, para. 136, item 5.
18. Encyclopaedia Britannica-Roman Law-Law of Persons-Guardianship.