Latin
Ancient Law
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.199
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If we were to lose sight of the true origin of Guardianship in both its forms and were to employ the common language on these topics, we should find ourselves remarking that, while the Tutelage of Women is an instance in which systems of archaic law push to an extravagant length the fiction of suspended rights, the rules which they lay down for the Guardianship of Male Orphans are an example of a fault in precisely the opposite direction. All such systems terminate the Tutelage of males at an extraordinary early period. Under the ancient Roman law which may be taken as their type, the son who was delivered from Patria Potestas by the death of his Father or Grandfather remained under guardianship till an epoch which for general purposes may be described as arriving with his fifteenth year,. but the arrival of that epoch placed him at once in the full enjoyment of personal and proprietary independence. The period of minority appears therefore to have been as unreasonably short as the duration of the disabilities of women was preposterously long. But, in point of fact, there was no element either of excess or of shortcoming in the circumstances which gave their original form to the two kinds of guardianship. Neither the one nor the other of them was based on the slightest consideration of public or private convenience. The guardianship of male orphans was no more desired originally to shield them till the arrival of years of discretion than the tutelage of women was intended to protect the other sex against its own feebleness. The reason why the death of the father delivered the son from the bondage of the family was the son's capacity for becoming himself the head of a new family and the founder of a new Patria Potestas; no such capacity was possessed by the woman and therefore she was never enfranchised. Accordingly the Guardianship of Male Orphans was a contrivance for keeping alive the semblance of subordination to the family of the Parent, up to the time when the child was supposed capable of becoming a parent himself. It was a prolongation of the Patria Potestas up to the period of bare physical manhood. It ended with puberty, for the rigor of the theory demanded that it should do so. Inasmuch, however, as it did not profess to conduct the orphan ward to the age of intellectual maturity or fitness for affairs, it was quite unequal to the purposes of general convenience; and this the Romans seem to have discovered at a very early stage of their social progress. One of the very oldest monuments of Roman legislation is the Lex Laetoria or Plaetoria which placed all free males who were of full years and rights under the temporary control of a new class of guardians, called Curatores, whose sanction was required to validate their acts or contracts. The twenty-sixth year of the young man's age was the limit of this statutory supervision; and it is exclusively with reference to the age of twenty-five that the terms "majority" and "minority" are employed in Roman law. Pupilage or wardship in modern jurisprudence had adjusted itself with tolerable regularity to the simple principle of protection to the immaturity of youth both bodily and mental. It has its natural termination with years of discretion. But for protection against physical weakness and for protection against intellectual incapacity, the Romans looked to two different institutions, distinct both in theory and design. The ideas attendant on both are combined in the modern idea of guardianship.