The law of the family and of succession at the time of the XII Tables (III): Guardianship

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 law of the family and of succession at the time of the XII Tables (II): Patria potestas

The complete power of the Roman father over his children has become proverbial, and the Romans knew that it was an institution peculiar to themselves. It extended not only over all sons and daughters (so long as they had not passed into the manus of a husband), but also over the children of the sons and more remote descendants through males, without any limit other than that imposed by the span of human life.

The oldest male ancestor not only has complete control over the persons of his descendants, even to the extent of inflicting the death penalty on them in the exercise of his domestic jurisdiction, but he alone has any rights in private law. No subordinate member of the family can own any property, and any acquisition that they make go straight to their pater, just as the acquisitions that they make go straight to their pater, just as the acquisitions of a slave become the property of his master. No person, male or female, in potestate can marry without the consent of the pater, and if the sons marry with manus it is the pater who obtains authority over their wives. One limitation there was, presumably from the earliest times: patria potestas has no concern with public law, and a son under power could vote and hold a magistracy just as freely as a paterfamilias. In private law the only limitation, if it can be called one, which we know to have existed at the time of the XII Tables, was the rule that if a father sold his son three times the son was to be free from the father. This rule, as we have seen, was used to make emancipation possible, but it is not known whether emancipation existed already at the time of the XII Tables. It could, clearly, only have existed if the provision concerning the three sales was a restatement of a customary rule.

The law of the family and of succession at the time of the XII Tables (I): Marriage

The Roman family is purely patriarchal; if there ever was a time when the more primitive matrilinear system prevailed among any part of the population it has left no traces in the legal system, and Roman law is indeed characterised by the exceptionally great power which it allows to the father as head of the family. Originally, no doubt, this power was a general, rather vaguely conceived, supremacy, but by the time of the XII Tables it has crystallised and become differentiated, so that its name varies according to the persons over whom it is exercised. Over the wife and the sons' wives it is manus, over the children and slaves potestas, patria potestas in the former, dominica potestas in the latter case, while the bondsmen are said to be in mancipio.

- Marriage

The normal marriage at this period is accompanied by manus, i.e. the woman passes out of her father's family and comes under the despotic rule of her husband. It appears, however, that already by the time of the XII Tables this was not necessarily the case. Apart from the question of manus, marriage was to the Romans, as to the other peoples of antiquity, a de facto rather than a de jure matter, in the sense that two people were held to be married, not because they had gone though any particular ceremony, but because they in fact lived together as man and wife. This state of affairs begins ordinarily with the bringing of the bride to the house of the bridegroom (domum deductio), but no special legal significance attaches to this proceeding, except in so far as it is in fact the beginning of conjugal life. As we shall see, however, manus would in early times normally result in such conjugal life were continued for a period, and thus it may properly be said that marriage with manus was the rule at the time of the XII Tables. Manus may arise in any one of three ways, by confarreatio, coemtio, or usus.