C Tutela impuberum (guardianship of minors)
Patria potestas lasted throughout the paterfamilias' life. Upon his death, his children, both male and female, would become legally independent (sui iuris), and his male children would have patria potestas over their own children.
Those who had not yet reached puberty (considered to be age fourteen for boys, twelve for girls) when their father died would be placed under tutela impuberum (“guardianship of those below puberty”). The guardian, called a tutor, of an underage ward (pupillus or pupilla) would be appointed by the father in his will, or, if no appointment had been made, guardianship would go to the nearest male relative on the father's side (agnate), usually the paternal uncle. In the absence of eligible agnates, application would be made to the authorities, usually by the children's mother, for appointment of a tutor. Under Roman law, a woman could not serve as tutor, though mothers sometimes got around this rule [see Chapter 5, Part II]. A tutor did not usually live with his ward, nor was he a substitute parent. Fatherless children generally lived with their mother, but she did not have potestas over them or control their property. The original purpose of tutela impuberum was to safeguard the child's property in the interests of the agnate relatives until the child was mature enough to manage the property. By the time of Augustus, there was a feeling that guardians should be concerned with their wards' welfare as well as their property, and this belief in the tutor's moral responsibility intensified in the later Empire [Schulz 1951, 162-80, 190-7; Saller 1994, 181-203].Sometimes a paterfamilias “emancipated” his children from patria potestas during his lifetime; he would then be in the position of their tutor, though with more authority over them than had other tutors.
To judge from the legal sources, by the fourth century it was not uncommon for fathers to emancipate their children from paternal power if they had reached maturity.10When they reached puberty, fatherless male children became, in classical Roman law, free of legal authority. Females over twelve would go from tutela impuberum to tutela mulierum [see Part III]. But Roman law realized that young people in their teens were still vulnerable to attempts by the unscrupulous to defraud them, and another type of guardianship developed, the cura minorum (‘'care of minors”) for those who had reached puberty but were still under the legal age of twenty-five. A curator's responsibilities were fewer than a tutor's, and in the earlier Empire appointment of a curator was optional (whereas a tutor was required). By the reign of Septimius Severus (193-211), however, curators were common, and by the fourth century they were required for both male and female minors under twenty-five, though those who demonstrated good behavior could request release from guardianship earlier [cf. Cod. Theod. 2.17.1.1 (324), in Part IV.B].
III Tutela mulierum (the guardianship of women)
Under classical Roman law a woman whose paterfamilias was dead and who had not entered manus-marriage was required to have a “guardian.” If she was still below the age of twelve when her father died, she would have a tutor impuberum (see Part II.C), but aged twelve she would come under tutela mulierum — the “guardianship of women.” (Vestal Virgins, who were free from tutela mulierum were an exception.) A woman would continue to be under tutela mulierum after she married, unless she had entered her husband's manus, a form of marriage which had become rare by the time of Augustus [see Part II.B].
It appears that the original purpose of tutela mulierum was to safeguard a woman's paternal inheritance in the interests of her father's relatives, who would be her heirs when she died. Until the first century C.E., a woman's tutor was usually her closest male agnate (relative on her father's side), probably her paternal uncle.
Such a tutor was called a tutor legitimus. If a woman's paterfamilias emancipated her from paternal power, he became a tutor legitimus to her. A freedwoman (liberta) also had a tutor legitimus: her former master (patron) [Dixon 1984; Gardner 1986a, 14-22; 166-8; Schulz 1951, 180-90].Tutela is usually translated as “guardianship,” but a tutor mulierum was not a legal guardian of the sort envisioned when we use the word today. He did not live with the woman, nor did he have any real control over her or her property. Certain legal and business activities that she might undertake, such as making a will, selling certain types of property (called res mancipi; see Part A below at Gaius II.80-5), or manumitting her slaves, required his consent. The tutor's authority was certainly not as extensive as that of a paterfamilias (or that of a tutor impu- berum): he did not own the woman's property, and his consent was not needed for her to enter marriage without manus (though it was needed for her to constitute a dowry, which involved property). A tutor was not a personal watchdog, and did not control the woman's private behavior. As the jurist Gaius remarked (Institutes I.190, Part A below), many women were quite capable of running their affairs without a tutor.
Augustus, as part of his promotion of marriage and procreation, granted women who served the state by child-bearing the ius (trium) liberorum, “the right of (three) children” [see Part III.D]. This released freeborn women who had borne three children and freedwomen who had borne four from the need for a tutor. Women with the ius liberorum could conduct all their legal and business affairs without a tutor. The emperor Claudius abolished the tutor legitimus for most women, which meant they no longer had to have a close agnate relative as tutor, but could have someone with no personal interest in their financial or legal affairs.
(The exceptions were emancipated daughters, whose father continued to be tutor legitimus, and freedwomen, whose patron was still tutor legitimus.) For instance, a woman might have as tutor one of her freedmen, who could be expected to be loyal and obedient. Thus by the mid- first century, tutela mulierum did not impose real restrictions on most women's freedom of legal and commercial action. Moreover, at least by Gaius' time, a tutor (except a tutor legitimus) could be forced by the urban praetor to authorize a woman's action even if he did not want to, and women could arrange to change tutors.A Roman husband was not usually his wife's tutor. The emperors Marcus Aurelius and Commodus prohibited a tutor from marrying his ward, but do not seem to have forbidden a husband to act as his wife's tutor after the marriage took place.11 Roman law frowned on a man being his wife's tutor, for it was believed that this would create a conflict of interest and lead to the corruption of marital affection - though spouses themselves may have felt differently [Arjava 1996, 140-1]. In the eastern provinces, husbands were usually their wives' guardians [see Part III.B].