TUTOR. By the Roman law a male under the age of fourteen, and a female under the age of twelve, were called Impuberea. A male who was impubes was incapable of doing any legal act by which he might be injured; his property was under the care of a tutor, who was so called from his office of defending or protecting (tuendo) the impubes in the transactions which were necessary for the administration of his property. The offico of the tutor was tutela; and the impubes, who with respect to his tutor was called pupillus, was said to be in tutela, in tutelage. The tutor's business was to manage the property of his pupillus, and to add to his acts the legal sanction (auctoritas). The tutor's office as tutor was confined to the property of his pupillus, who, as to his person, was under the care (custodies) of his mother, if he had ono ; if not, we must suppose that the tutor would sometimes have the care of his person also. When the pupillus attained the age of puberty, he had the capacity of contracting marriage, and of doing other legal acts, and was freed from the control of his tutor. But though the law gave full legal capacity to the pupillus on his attaining puberty, it still gave him some further protection until he was twenty five years of age. [Cue.svoe.] A father could appoint by testament a tutor for his male children who were impuberts and in his power; he could also appoint & 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 maim, 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 choscu by a wife under a power given by the husband were tutors optivi. If a testator appointed no tutor, the tutala was given to the nearest agnati by the Twelve Tables : such tutores were legitimi. If there were no ;spat', the tutela belonged to the Gentiles so long as that part of the law (Jus Gentilitium) remained in foroc. When thire was no person appointed tutor, and no legitimua tutor existed, a tutor was appointed for persons at Rome under the provisions of a Lox 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 bas injury, ho 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 auctoritatem interponere : Frog.; tit. xi., a. 25). Tho doing of the necessary acts applied to the case of the pupillue being inhale, that is, under seven years of ago, absent, or lunatic (furiosue). When the pupillus ceased to be infaus, he conld do umuy acts himself, and the auctoritas of the tutor was only neces sary to make them legal acts.
A tutor might be removed from his office if he miaconducted him self in it. Tho pupillus had also an action against hiin for mismanage ment of his property. The tutor was allowed all proper costa 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 prxtor 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 ho had been selected as a proper person.
The tutela of women who were puberes was a peculiar Roman institution, founded ou the maxim that a womau 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 necessary acts, particularly when the pupillus was infans, and gave his auctoritas; in the case of women who were puberes, the tutor only gave his auctoritaa.
The Vestal virgins, in virtue of their office, were exempted from tutela. Both libertine and ingenue were exempted from it by acquiring the Jus Liberorum, which was conferred by the Lex Julia et Papia Poppsa on women who had a certain number of children. The tutela of a woman was her marriage, by which she came in man= 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.