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nearest Agnati, and such Tutores were called Legi-timi. The nearest Agnati were also the heredes in case of the immediate heredes of the Testator dying intestate and without issue, and the . tutela was therefore a right which they claimed as well as a duty imposed on them. Persius (ii. 12) alludes to the claim of the Tutor as heres to his pupillus. A son who was pnbes, was the legitirims tutor of a son who was impubes ; and if there was no son who was pubes, the son who was impubes had his father's brother (patruus) for his tutor. .The same rule applied to females also, till it was altered by a Lex Claudia. If there were several agnati in the same degree, they were all tutores. If there were no Agnati, the tutela belonged to the Gentiles, so long as the Jus Gentilicium was in force. (Gaius, iii. 17, and i. 164.) The tutela in which a freedman .was with respect to his Patronus was also Legitima; not that it was expressly given by the words (lex) of the Twelve Tables, out it flowed from the lex as a consequence (per consequentiam, Ulp. Frag. tit. 11); for as the hereditates of intestate liberti and libertae belonged to the patronus, it was assumed that the tutela belonged to him also, since the Twelve Tables allowed the same persons to be tutors in the case of an ingenuus, to whom they gave the hereditas in case there was no suus heres. (Gains, i. 165.)
If a free person had been mancipated to another either by the parent or coemptionator, and such other person manumitted the free person, he became his tutor nduciarius by analogy to the case of freedman and patron. (Compare Gaius, i. 166 with Ulp..Fro<7. tit. ll.s. 5.) [EiviANGiFATio;FinuciA.]
If. an impubes had neither a tutor Dativus nor Legitimus, he had one given to him, in Rome, under the provisions of the Lex Atilia by the Praetor .Ur.ban.us and the major part of the Tribuni Plebis; in the provinces in such cases a tutor was appointed by the Praesides under the provisions of the Lex Julia et Titia. [lex julia et titia.] If a tutor was appointed by testament either sub eondi-cione or ex die certo, a tutor might be given under these Leges so long as the condition had not taken effect or the day had not arrived: and even when a tutor had been appointed absolutely (pure\ a tutor might be given under these Leges so long as there was no heres ; but the power of such tutor ceased as soon as there was a tutor under the testament, that is, as soon as there was a heres to take the hereditas. If a tutor was captured by the enemy, a tutor was also given under these Leges, but such tutor ceased to be tutor, as soon as the original tutor returned from captivity, for he recovered his tutela Jure Postliminii.
Before the passing of the Lex Atilia tutors were given by the praetor in other cases, as for instance, when the legis actiones were in use, the Praetor appointed a tutor if there was any action between a tutor and a woman or ward, for the tutor could not give the necessary authority (auctoritas) to the acts of those whose tutor he was, in a matter in which his own interest was concerned. Other cases in which a tutor was given are mentioned by Ulpian, Frag. tit. 11.
Ulpian's division of Tutores is into Legitimi, Senatusconsultis constituti,. Moribus introducti. His legitimi tutores comprehend all those who become tutores by virtue of any Lex, and specially by the Twelve Tables: accordingly it comprises tutores in the case of intestacy, tutores appointed
by testament, for they were confirmed by the Twelve Tables, and tutores appointed under any other Lex as the Atilia. Various Senatusconsulta declared in what cases a tutor might be appointed ; thus the Lex Julia de maritandis ordinibus (Papia et Poppaea) enacted that the Praetor should appoint a tutor for a woman or a virgin, who was required to marry by this law, " ad dotem dandam, dicendam, promittendamve," if her Legitimus tutor was himself a Pupillus: a Senatusconsulturn extended the provision to the provinces, and enacted that in such case the praesides should appoint a tutor ; and also that if a tutor was mutus or furiosus, another should be appointed for the purposes of the Lex. The case above mentioned of a tutor being given in the case of an action between a tutor and his ward, is a case of a tutor Moribus clatus. In the Imperial period from the time of Claudius tutores extra ordinem were appointed by the consuls also.
Only those could be Tutores who were sui juris. A person could not be named Tutor in a Testament, unless he had the Testamentifactio with the Testator, a rule which excluded such persons as Peregrini. The Latini Juniani were excluded by the Lex Junia. (Gaius, i. 23.) Women could not be Tutores. Many persons who were competent to be Tutores, might excuse themselves from taking the office : these grounds of excuse (excusationes) were, among others, age, absence, the being already Tutor in other cases, the holding of particular offices and other grounds which are enumerated in the Fragmenta Vaticana (123— 247). In the system of Justinian the tutela is viewed as a Publicum munus. :
The power of the Tutor was with respect to the property and pecuniary interests, not the person of the Pupillus, and the passage of the Twelve Tables which gives or confirms to a testator the power of disposing of his property, uses the phrase, Uti legassit super pecunia tutelave suae rei, that is the Tutela of the property. It was not absolutely essential to the notion of Tutela that the Tutor should have the administration of property; and he had it not in the case of Mulieres. It might happen that the Tutores from their nearness of blood and other causes might have the guardianship of the Impubes ; but then the protection of the property of the Impubes was the special office of the Tutor, and the care of the infant belonged to the mother, if she survived (custodia matrum, Hor. Ep. i. 1. 22). In a case mentioned by Livy (iv. 9), where the mother and the Tutores could not agree about the marriage of the mother's daughter, the ma-gistratus decided in favour of the mother's power (secundum parentis arlitrium). As to the later law, see Dig. 27. tit. 2. s. 1. § 6.
A pupillus could do no act by which he diminished his property, but any act to which he was a party was valid, so far as concerned the pupillus, if it was for his advantage. Consequently a pupillus could contract obligationes, which were for his advantage, without his Tutor. (Gaius, iii. 107.) The Tutor's office was " negotia gerere et auctori-tatem interponere." Thus the natural act of the pupillus became by auctoritatis interpositio of the Tutor, a legal act; and thus the pupillus and his Tutor formed one complete person, as to legal capacity to act. No particular form was required for the expression of the tutor's auctoritas, and his presence, when'the act was done, by the pupillus,