A Legal sources on tutela mulierum

Because tutela mulierum had disappeared two centuries before Justinian (527-565), the compilers of the Justinianic corpus of Roman law omitted all reference to it in the Digest, the Code of Justinian, and Justinian's Institutes.

1   The Institutes of Gaius on tutela mulierum

Institutes I.144: Therefore it has been permitted to parents to give guardians (tutores) to their children whom they have in their power: to male children below puberty, but to female children both below and above puberty, even when they have married. For the ancients wanted women, even if they are of full age, to be in guardianship (tutela) on account of their lightmindedness.

See Part IV.C for more on the “lightmindedness” of women.

I.               145: And so if anyone has given a tutor to his son and daughter in his will and they have both arrived at puberty, the son of course stops having a tutor, but the daughter remains nevertheless in tutela: only according to the Julian and Papian—Poppaean law are women freed from tutela by means of the ius liberorum. We are speaking, however, of women other than the Vestal Virgins, whom indeed the ancients wished to be free (of guardianship) out of honor for their priesthood: thus it was decreed even by a law of the Twelve Tables.

The “Julian and Papian—Poppaean law” refers to the Augustan laws on marriage enacted in 18 B.C.E.

I.               lang=EN-US style='font-weight:bold'>148: A tutor is able to be given (by a man in his will) to a wife married with manus, just as to a daughter, and likewise to a daughter-in-law who married with manus to a son, just as to a granddaughter.

Gaius goes on to say (Inst. I.151—3) that a man can, in his will, give his wife in a manus- marriage the ability to choose her own tutor after his death. This seems to have been true only for the appointing of a tutor mulierum for a wife married in a manus-marriage; a father could not in his will give a daughter the ability to choose her own tutor. By the imperial period, very few women were in a manus-marriage. Most would be assigned a tutor in their father's will or have one chosen for them after his death.

I.155: For those (fatherless children; see Part II.C above) to whom a tutor was not given by will, by a law of the Twelve Tables their agnate relations are tutors, who are called legitimate (legitimi) tutors.

The tutor legitimus was a male on the agnate (paternal) side of the family, who would prob­ably be the next in line to inherit if the person in tutela died without a will. In the mid-first century, the emperor Claudius abolished agnate tutela for women. After that, only fatherless children below puberty (male and female) would have an agnate relative as a tutor legitimus:

I.157: Indeed in the past, so far as pertains to the law of the Twelve Tables, even women had agnate tutors. But afterwards, the Claudian law was enacted, which, as pertains to women, removed the tutela of agnates.

Since agnates had first claim on a woman's estate if she died without a will, a tutor legit­imus had a direct interest in a woman's financial affairs. And since a woman needed her tutor's authorization to make a valid will, a tutor legitimus who did not want her to leave her property away from her agnates (for instance, by making her own children heirs) could prevent her making a will. Claudius' law therefore provided a significant benefit. Presumably a woman could have an agnate relative as her tutor, but he would not have the authority of a tutor legit­imus; for instance, he could be replaced by another tutor if the woman requested [see below], whereas a tutor legitimus could not. Only daughters freed from patria potestas, whose fathers became tutor legitimus to them, and freedwomen, whose former owners (patrons) were tutor legitimus, were not affected by the Claudian law [see below on freedwomen and tutela].

A woman could also change her tutor (if her current tutor approved) by making a “mock sale” (coemptio) of herself and then having herself freed by the man she wanted as tutor. She might undergo the same process of coemptio if she wanted to enter into a marriage with manus (Part II.B) and until the reign of Hadrian (117—138), she had to undergo coemptio before she could make a will:

I.115:    .. if anyone wishes to get rid of the tutors she has and find another,

she makes a “mock sale” (coemptio) with their authorization. Then, having been transferred back again from the other party in the sale to the man whom she wants and having been mancipated by him, she begins to have as her tutor the man by whom she was manumitted, who is called a fiduciary tutor (tutorfiduciarius)...

Moreover, a woman had the right to request a different tutor if for some reason her current tutor could not (or would not) authorize her activities:

I.173: Besides, it has been permitted to women by a decree of the Senate to request another tutor in place of one who is absent, and when this is requested, the first one ceases to be tutor.

I.174: But an exception is made, so that a freedwoman is not permitted to request another tutor in place of her absent patron.

Roman citizen women living in the provinces also had to have a tutor mulierum, as, appar­ently, did women in provincial municipia which had been granted Latin rights [see on the lex Irnitana, Part III.A.3 below]. Other non-citizen women were not subject to the Roman tutela mulierum, but similar institutions existed in at least some other provinces [see Part III.B].

I.183: All these things are observed in a similar way at Rome and in the provinces, so that of course in the provinces a tutor ought to be requested from the governor of the province.

I.185: If someone has no tutor at all, one is given to her, in the city of Rome, according to the Atilian law, by the urban praetor and the majority of the tribunes of the plebs, who is called an Atilian tutor. In the provinces, however, (a tutor is given) by the governors of the provinces according to the Julian and Titian law.¹²

I.193: Among foreigners (peregrini), women are not in tutela in the same way as among us. However, they often are in a sort of tutela: as, for instance, the law of the Bithynians orders that if a woman undertakes any contract, her husband or adult son must give his authority.

After the mid-first century, the only women really restricted by tutela mulierum were freed­women. The tutor of a freedwoman (liberta) was her former owner, her patronus, and he (like the now-abolished agnate tutors of freeborn women) was tutor legitimus and had inheritance rights in regard to his freedwoman’s property [see Gardner 1998, 64—7].

The need to get her patron-tutor’s authorization for legal and business transactions could put the liberta in a bind, for instance if her original patron died and his role was inherited by his under-age son.

I.179: Of course the son of a patron, even if he is below puberty, will nevertheless be made the tutor of (his father’s) freedwoman, though in no act is he able to be a legal agent, since he himself is not permitted to act at all without his tutor’s authority.

The law did at times step in and enable a freedwoman to change her tutor if the action she wanted to undertake was perceived to be socially desirable, such as inheriting wealth or, espe­cially, getting married:

I.176: But at times indeed it is permitted to request a tutor in place of an absent patron, for example for the purpose of entering on an inheritance.

I.177: The Senate decided the same thing in the case of the minor son of a patron.

I.178: For also by the Julian law de maritandis ordinibus she who is in the tutela legitima of a minor is permitted to request (another) tutor from the urban praetor for the sake of constituting a dowry.

I.180: Likewise if a woman is in the tutela legitima of a madman or a mute person, she is permitted by a decree of the Senate to request (another) tutor for the sake of constituting a dowry.

The Julian law de maritandis ordinibus (“on the marrying of the social orders”) was passed in 18 B.C.E. to promote marriage and procreation [see Chapter 2, Part I.B].

In some cases, even freedwomen did not have a tutor legitimus:

I.195: However, a freedwoman is able to have a tutor of another kind, for instance if she was manumitted by a woman; then indeed she ought to request a tutor according to the Atilian law, or in a province according to the Julian and Titian law: for she cannot be in the tutela of a female patron. I.195c: Similarly, a freedwoman is able to request a tutor according to the same laws, if her patron has died and has left no child of the male sex in the household.

Freedwomen were discriminated against in other ways:

I.    194: Moreover, freeborn women are freed from tutela by the right of three children (ius trium liberorum), but freedwomen [only if they have] four, if they are in the tutela legitima of their patron or his sons. Certainly the others, who have tutors of another kind, such as Atilian or fiduciarii, are freed by the law of three children.

The four children would have to be those born after she had been released from slavery—an additional disadvantage.

What did the tutor mulierum actually do? His authorization was needed for certain acts by a woman to be valid. She needed his consent to make a will (though he need not know or approve of its contents), or to sell or give away certain types of property that were classified as res mancipi (“property subject to mancipation”), which included certain animals (cattle, horses, mules, asses), urban and rural estates in Italy, and slaves. His authorization was also required if a woman wanted to manumit (emancipate) her slaves or to engage in litigation [see Part IV.E].

II.    80: Now, we must be warned that neither a woman nor a pupillus (fatherless minor, who would have a tutor impuberum) is able to alienate res mancipi without a tutor's authorization. However, it is possible for a woman to alienate something that is not res mancipi, but not possible for a pupillus to do so.

II.             81: And therefore whenever a woman has given a loan to someone without her tutor's authorization, because she makes it the recipient's, she contracts an obligation, since of course money is not res mancipi.

In other words, she is herself responsible for having made the loan, which did not require her tutor’s authorization (unlike the pupillus who cannot make a valid loan without his tutor’s authorization).

II.             83: And, on the contrary, all property, whether or not it is res mancipi, can be paid over to women and to pupilli without a tutor's authorization, since it has been allowed for them to improve their own condition even without their tutor's authorization.

II.85: Moreover, it is possible for a debt to be paid properly to a woman without her tutor's authority: for he who has paid the debt, is freed from an obligation, since, as we just said, women are able to discharge property that is not res mancipi even without a tutor's authorization. However, this is the case if she actually receives the money, but if she doesn't receive (money) but says that she has it and without her tutor's authorization she wishes to free her debtor through a formal discharge from debt, she is not able to.

II.118: Further, it must be observed that if a woman who is in tutela makes a will, she ought to do it with her tutors authorization: otherwise it will be made ineffectively according to the civil law.

Gaius goes on to say (Inst. II.119—21) that even in cases where a will was not made prop­erly, the appointed heirs were still enabled to inherit under both the Praetor’s Edict and a ruling of Antoninus Pius, and this applied to the wills of women as well as men. As to whether it also applied to cases where a woman had made a will without her tutor’s authoriza­tion, Gaius seems unsure, though he implies that it did, except for those women who still had a tutor legitimus, that is, libertae and daughters emancipated from patria potestas:

II.122: But of course we are talking about those women, who are not in the tutela legitima of parents or patrons, but who have tutors of another kind, tutors who are forced to give their authorization even against their will. Otherwise it is clear that if a will is made without his authorization a parent or a patron is not removed (as heir to the woman's property).

Yet, though Gaius duly explains the technicalities of tutela mulierum, he does not really understand the need for it in his own day:

I.    190: However, almost no reason of value appears to recommend that women of full age be in tutela. For the reason which is commonly believed, that since they are very often deceived due to their lightmindedness, it was right for them to be ruled by the authority of tutors, seems to be specious rather than true. Indeed, women who are of full age transact business deals for themselves, and in certain cases the tutor interposes his authority for the sake of legal form; often he is even forced by the praetor to give his authority against his will.

2    Selections from the Rules of Ulpian 11

II.     1: Guardians (tutores) are appointed for both males and females, but for males only as long as they are below puberty, on account of the weakness of their age; however, for females both below puberty and above, both on account of the weakness of their sex (sexus infirmitas) and on account of their ignorance of legal affairs.

On the “weakness” of the female sex, see Part IV.C below.

11.20: According to the Julian law de maritandis ordinibus a tutor is given by the urban praetor to that woman or unmarried girl who ought to marry according to that very law, for the purpose of giving and declaring and promising a dowry, if she has a minor as her tutor legitimus. But afterwards the Senate decided, that tutors should be given also in the provinces in a similar way by their governors for the same purpose.

11.25: The tutors of minor males and females both transact their business affairs and give their authorization, but women's guardians only give their authorization.

11.27: The guardian's authorization is required for women in these matters: if they are acting legally or in a statutory court¹³, if they put them­selves under an obligation, if they are undertaking civil business, if they are allowing their freedwoman to live in an unofficial union (contubernium) with someone else's slave, or if they alienate property that is res mancipi.

On the contubernium of a freedwoman with someone else’s slave, which was regulated by a senatusconsultum Claudianum, see Chapter 3, Part I.B.2.

3    The Flavian Municipal Law (lex Irnitana^

Almost all our knowledge of the actual texts of laws derives from sources like the Institutes of Gaius or the jurists preserved in the Digest, or imperial constitutions found in the Code of Justinian and the Theodosian Code [see Introduction to this book, Part I]. But a few legal texts are known directly from documentary sources, that is, inscriptions or papyri. An important example is the so-called “Flavian Municipal Law,” known from several inscriptions found at the sites of towns in Spain. The most recently discovered and most complete version of the Flavian law, engraved on six bronze tablets, was found at the ancient Muncipium Flavium Irnitanum (Irni). This lex Irnitana is not completely preserved, but some missing parts can be filled in from another text of the Flavian law found at Malaga [Gonzalez 1986; Lintott 1993, 140—5].

The Flavian Municipal Law was apparently a constitution given to non-Roman towns (municipia) in Spain who had been granted Latin rights by the emperor Vespasian (reigned 69—79). The law set forth legal regulations to be followed by municipes (citizens of a municipium), most of whom were at this time not Roman citizens. In municipia with Latin rights, those who held a local magistracy, such as the duoviri (the two chief officials of the town), would receive Roman citizenship upon leaving office, along with their wives, parents, children, and their sons’ children. Of particular interest is the fact that even those municipes who were not Roman citizens were assumed already to have certain Roman legal institutions, most notably patria potestas and manus, and were expected to follow Roman law in their deal­ings with each other at Irni [Gonzalez 1986, 148-9; Gardner 1993, 188-90].

Among the Roman institutions assumed for the municipes of Irni was tutela, guardianship, both that of fatherless minors (tutela impuberum) and tutela mulierum. Both minors under a tutor impuberum (called pupilli) and women under a tutor mulierum needed their tutor’s consent to emancipate their slaves, and Chapter 28 of the law specifies that only then are manumissions by those under guardianship valid. This obviously meant that a procedure needed to be in place for appointing tutors, and we see from Chapter 29 that in municipia, the duovir played the role of the praetor in Rome and of the governor in Egypt [see Gaius, Inst. I.183 above, and cf. Part III.C for Egypt].

The Latin text of the lex Irnitana used here is that of Gonzalez 1986. Texts of other versions of the Flavian Municipal Law, from Malaga and from Salpensa, Spain, are found in FIRA III, 202-19. It was engraved in 91 C.E. (as appears from a “postscript” to the law, a rescript of the emperor Domitian regarding the validity of marriages at Irni).¹⁴ The Flavian law itself dates to about a decade before then.