CASE 227: Escaping a Tutor
Gaius, Institutiones 1.173
Praeterea senatus consulto mulieribus permissum est in absentis tutoris locum alium petere; quo petito prior desinit; nec interest quam longe absit is tutor.
(Gaius in the first book of his Institutes)
What is more, women are allowed by a senatusconsultum to request a tutor in place of one who is absent. Once the request is made, the first one ceases to be tutor. It does not matter how far away the tutorlang=EN-US style='font-weight:bold'> is.
Hypothetical Situation
Titius, the tutor, packs his bags for a weekend at the seashore. To his dismay, he becomes entangled in business concerns before he makes it out of the suburbs, and he is forced to return to Rome later that same day. In the meantime, his ward, a sixteen- year-old named Seia, has approached a magistrate and asked for a new tutor in order to approve a will that Titius has long opposed her making. Will Seia prevail?
1. Time versus Distance. Does brevity of distance imply brevity of time as well?
2. Senatorial Intervention. What do you think motivated the Senate to act? Is there a risk that the authority of tutores will be undermined as a result?
3. Where There’s a Will ... Gaius (Inst. 1.114-115) also reports an older and far more complex method for getting rid of a tutor.
The woman undergoes a formal and entirely fictitious “sale” (coemptio) in which she sells herself to third party, who then remancipates her to another person, who “manumits” her and thereafter becomes her “fiduciary guardian” (tutorfiduciarius); that is, he replaces her original tutor. This extraordinarily contrived ceremony derives from an archaic procedure for marrying with manus (see Discussion on Case 19). Another variant of the same ceremony had once been used to allow a woman to write a will; see the following Case.4. Exceptions. In two situations in classical law, a woman was not allowed to change her statutory tutor: if he was the ex-master and patron of a freedwoman, and if he was an emancipating pater familias (Gaius, Inst. 1.174175). What is the reasoning behind these exceptions? One situation when an absent patron could be substituted even in these circumstances was when there was an opportunity to accept an inheritance. What does this exception to the exception tell us about the intended scope of the senatusconsultum for women who were neither freed nor emancipated?