Throughout the history of Roman law a child under the age of puberty needed a guardian and so also at the time of the XII Tables (and for long afterwards) did a woman of any age who was sui iuris. In these cases the guardian was called tutor. Beyond incapacity due to youth or sex Roman law also recognised two other cases, that of the lunatic (furiosus) and the spendthrift (prodigus), but in these cases the guardian was called by a different name –curator–. It must however be understood that there is never any question of guardianship of either sort except where the person concerned is sui iuris; a person who is in potestate, in manu or in mancipio can have no guardian, because the chief function (and in later law the only function) of the guardian is to administer the property of the incapable person, and a person alieni iuris can have no property to be administered.
At the time of the XII Tables the rules for the appointment of tutores were simple in the extreme. A man might in his will appoint a tutor for any person in his manus or potestas who would become sui iuris at his death. Failing a tutor appointed by will, the tutela went, in the case of free-born persons, to the nearest male agnate (i.e. to the person most closely related, relationship being reckoned through males exclusively), or nearest agnates jointly, if there were several related in the same degree; failing agnates it went to the gentiles. In the case of freed persons (who could have no agnates) the tutela went to the patron (i.e. the person who had manumitted them) or his children. This was not definitely laid down by the XII Tables, but was inferred from the rule that the patron or his children were to take the succession to freed persons if they died intestate.
The cura of lunatics went first to the agnates, failing them to the gentiles; there was no provision for the appointment of curatores by will. Spendthrifts similarly were under the cura of their agnates, at any rate if they had received the property which they were wasting by succession on intestacy. In later times restraint could be imposed on all property, however acquired, and the interdiction which made a man legally a prodigus was pronounced by a magistrate, but it may be that, at the time of the XII Tables (when only property received on intestacy was concerned), the agnates themselves, or the gens, had power to issue the decree.
Guardianship (both tutela and cura) became in the developed law an institution intended, as it is with us, to shield the incapable person from the consequences of his own inexperience, disease or folly, but at the time of the XII Tables this was clearly not its main purpose. It was then assigned to the successors on intestacy, the very people who would benefit if the ward died without attaining testamentary capacity, for their own, or at any rate the family's advantage. This is particularly clear with respect to the tutela of women; the agnates were given power over them to prevent their losing the family property or taking it with them in an undesirable marriage. Marriage with manus needed the consent of the guardians, who could thus prevent a match of which they disapproved. The whole institution is in fact one intented to keep the property in the agnatic family.
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- The law of the family and of succession at the time of the XII Tables
+ Marriage
+ Patria potestas
+ The agnatic family
+ Intestate succession
+ Testamentary succession
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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 120 - 122.
