At the death of a father the feminine portion of a family—the widow and grown-up but unmarried daughters, were looked upon as sui juris in the sense that they could administer their own property, but as they could not bring actions (except in the case of the vestals), they needed for all legal acts which concerned them, the authority (auctoritas) of a guardian. The sons reached the age of puberty at fourteen; under that age they required a guardian. If the family had a new head over fourteen years old, he was the guardian of all those under age and of all the females of the family; in the contrary case the guardian came from outside the family.
The law of the Twelve Tables did not allow those interested the choice of their guardian; the legitimate guardian was the nearest relation (agnat) of the deceased, or, in default, one of the members of the gens. It was exactly the same for the trusteeship which came into operation when a citizen sui juris was recognised as mad, or decreed by the interdictum of the prætor to be in the position of a maniac on account of prodigality. The trustee had the most unlimited powers over the person and property of the person so decreed.
The lawyers laboured to make the guardianship of the young secure and effective, to suppress the guardianship of women and to abolish the interference of the gentilitious customs in favour of natural relationship.
A first step had already been taken in the time of the Twelve Tables—the father of the family was permitted to choose and appoint by will the guardian of his children. The legitimate guardian according to the gentilitious law was called upon to replace the testamentary guardian in case the latter refused to undertake the guardianship. Later the law Atilia, about 190 B.C., empowered the prætor urbanus or the college of the tribunes of the plebs to nominate a guardian (tutor atilianus) in default of a legitimate or testamentary guardian in case the latter refused to undertake the guardianship. The custom was even introduced at this epoch of leaving to the widows, by will, the choice of their guardian (tutor optivus), either allowing them to change them once or twice (optio angusta), or as many times as it pleased them (optio plena). Women could even escape effective guardianship—especially with the object of acquiring the right to make wills—by tricks of procedure. For this purpose they made use of fiduciary co-emption. Co-emption substituted the co-emptionator for the guardian. The man who thus acquired the rights of a husband ceded the woman to a third person by mancipation. The latter emancipated the woman whose guardian he remained in form (tutor fiduciarius). This procedure was well known in the time of Cicero. It must be added that it was not applied in such an easy fashion when the guardian was the tutor legitimus of gentilitious law; the latter could not be forced to give his consent to the fictitious marriage which began the work of deliverance.
Thus it was against the legitimate guardianship that the legists directed their efforts. Augustus released from ordinary guardianship all women having three children, and freed women who were mothers of four children. Claudius absolutely suppressed gentilitious guardianship for women. It was only kept up for children. There remained only ordinary guardianship to be annihilated. Hadrian rendered fiduciary co-emptions unnecessary by giving women the right of making wills with the consent of their guardians, and Antoninus in certain cases recognised the legality of wills made without this sanction. As women had already received the right of administration of their property, guardianship was from that time almost objectless as far as they were concerned. It disappeared of itself. The movement of emancipation continued; from the time of Diocletian women began to acquire the right of guardianship over their own children.
As to the guardianship of young boys the legists had tried to extend, not the liberty of the wards, but the responsibility of the guardians. They even thought good to extend the guardianship under another name beyond the age fixed by the ancient law, which declared male children to have attained puberty at the age of fourteen. From the commencement of the second century before Christ, a law Plætoria created a state of minority from fourteen to twenty-five; for fear the minors should be “circumvented,” it decreed that the loans agreed to by them should only be legal if they had been witnessed by a trustee named by the prætor. Marcus Aurelius made it a duty of the magistrates to give permanent trustees to all minors who requested them, and it was to the latter’s interest to do so, because otherwise they could not appeal to the law. The trusteeship of minors had, in spite of distinctions, a singular resemblance to that of madmen and persons interdicted, and to the guardianship of children. And, from the time of Constantine, it was much the same as the other kinds. There was however one difference; this was that the interdicted persons were reduced to a passive condition, and a ward was only allowed to act with authorisation of the guardian, whilst the minor could contract debts without the consent of his trustee.
Jurisprudence here became confused by its precautions; it hesitated between respect for individual liberty and the far more potent anxiety to safeguard the material interests of the family.[g]
It will be understood that the respect for individual liberty here referred to has reference only to a relatively small portion of the community. The larger number of the inhabitants of Rome had no individual liberty; nor, indeed, any other right that commanded respect. In a word, the mass of the population was made up of slaves; therefore, even a casual glance at the manners and customs of Roman society cannot disregard this unfortunate class.