EATOR.1 A fa er could appoint by testament a tutor for his male children who were impuberes and in his power ; he could also appoint a tutor for females who were in his power, even if they had attained puberty. He could also appoint a tutor for the wife of a son, who was in his power, and for his grandchildren, unless by his death they should come into the power of their father. A man could also appoint a tutor for his wife, who was in mann, for she stood to him in the legal relation of a daughter; and he could also give her the power of choosing a tutor. The origin of this testamentary power was probably immemorial custom, which was confirmed by the Twelve Tables. Tutors thus appointed were called dativi: those who were chosen by a wife under a power given by the husband were tutores optivi. If a testator appointed no tutor, the tutela was given to the nearest agnati by the Twelve Tables : such tutores were legitimi. If there were no agnati, the tutela belonged to the Gentiles so long as that part of the law (Jus Gentilitium) remained in force. When there was no person appointed tutor, and no legitimus tutor existed, a tutor was appointed for persons at Rome under the provisions of a Lex Atilia, and for persons in the provinces under the provisions of a Lex Julia et Titia.
Though a pupillus could not do any legal act which should be to his injury, he could enter into contracts which were for his benefit. The tutor's office was defined to consist in doing the necessary acts for the pupillus, and interposing or adding the legal authority to his proper acts (negotia gerere et anctoritatem in terponere : Ulpiani Frag., tit. xi., s. 25.) The doing of the necessary acts applied to the case of the pupillus being infans, that is, under seven years of age, absent, or lunatic (furiosus). When the pupillus ceased to be infans, he could do many acts himself and the auctoritas of the tutor was only necessary to make them legal acts.
A tutor might be remwed from his office if he misconducted himself in The pupillus had also an action against him for mismanagement of his property. The tutor was allowed all proper costs and expenses incurred by him in the management of the affairs of the pupillus; and he could recover them by action. Security was required by the praetor from a tutor for the due management of the affairs of a pupillus, unless he was a testamentary tutor, for such tutor was chosen by the testator, and, generally, unless he was appointed by a magistratus, for in such case he had been selected as a proper person.
The tutela of women who were puberes was a peculiar Roman institution, founded on the maxim that a woman could do nothing without the auctoritas of a tutor. But there was this difference between the tutela of pupilli and of women who were puberes: in the case of pupilli the tutor both did the neeessary acts, particu larly when the pupillus was infans, and gave his anctoritas; in the case of women who were puberes, the tutor only gave his auctoritas.
The Vestal virgins, in virtue of their office, were exempted from tutela. Both libertinae and inFennae were exempted from it by acquiring the Jus Liberorum, which was conNrred by the Lex Julia et Papia Poppaea on women who had a cer tain number of children. The tutela of a woman was terminated by a marriage by which she came in manum viri ; and also by other means.
A woman had no right of action against her tutor as such, for he did not do any act in the administration of her property : he only gave to her acts their legal validity by his auctoritas.
The subject of the Roman tutela is one of considerable extent, and in the case of women it involves some difficult conside rations.