own affairs apart, from whence his tacit consent to their emancipation may be inferred."1 At common law the father is liable for the aliment of his Reciprocal obligations lawful children, including clothing and necessaries. Failing the father, by death or otherwise, the mother is next liable; then the paternal grandfather and great-grandfather in their order. On the other hand, children who have the means of doing so, are bound to aliment their parents when they become unable to provide for themselves. In all cases the aliment, so far as it can be enforced by law, is strictly limited to what is necessary for reasonable support.2 children. A bastard is not under paternal power, and a father Illegitimate cannot appoint a guardian to him by will. By the law of Scotland, both the mother and the father are liable to support the bastard; so that, when the paternity is established, the mother's claim against the father resolves into a claim of rateable contribution or relief.3 1 Stair, 1. 5. 13. 3 Fraser, vol. ii. pp. 48, 49. K CHAPTER X. OF TUTORS AND CURATORS. 1.-ROMAN LAW. Guardianship defined. Ancient tutory of women. FULL age, by the Roman law, was twenty-five years complete, both for males and females; while the laws of France, England and Scotland all fix majority at twenty-one. Minors, in an extensive sense, include all under age; and their guardians are either tutors or curators. Tutory is the right to govern the person, and administer the estate, of a pupil. Curatory is the right to manage the estate, either of a minor who has reached puberty, with his concurrence, or of a person of full age who, from insanity or defect of judgment, is incapable of acting for himself. Sect. 1.-Tutors. Originally two classes of persons were placed under tutory,-pupils, on account of their age-and women, on account of their sex. There is hardly any trace of the tutela mulierum in Justinian's legislation, but the discovery of the Institutes of Gaius has thrown some light on the subject.1 According to the ancient Roman law, a woman was placed through her whole life under the tutory of agnates when she ceased to be under paternal power, and was not in manu mariti. The origin of this kind of tutory was to protect the property of women, and prevent it from being withdrawn from the lawful succession of agnates. For this reason the 1 Gai. 1. § 190 et seq. nearest male relations were appointed tutors. They had no right of administration, properly so called, but only the power of preventing the woman from alienating her property, or undertaking any important obligation, without their authority. Though the tutory of women was rigidly enforced in ancient times, it lost by degrees its primitive character. By the law Papia Poppaa, the privilege of children released many married women from this inconvenient superintendence. A law of Claudius delivered free-born women from the lawful tutory of agnates; but a tutor-dative was still required to validate the principal acts of women in civil life. Finally, many ingenious expedients were devised to withdraw women from their legal tutors who were found to be troublesome, and allow them to choose more complaisant guardians, who left them at liberty to do whatever they liked. Vestiges of this degenerate tutory, which had become an idle form, remained as late as Diocletian; but under the emperors who succeeded him it entirely disappeared.1 Pupils who were sui juris, and no longer under the Tutory of paternal power, were placed under the guardianship of a tutor. No one could fill that office but a Roman citizen of the full age of twenty-five. As a general rule, females could not be tutors; but under the new law an exception was made in favour of the mother and grandmother of the pupil. Guardianship was considered a munus publicum, so that persons appointed tutors or curators were bound to act, unless they could plead exemption under certain excuses allowed by law. Persons holding high offices in the state, clergymen and professors, men employed in the army or absent on the public service, those who had a certain number of lawful children still living (three at Rome, four in Italy, and five in the provinces), and those who were upwards of seventy years of age, were, among others, excused from this duty.2 Debtors and creditors of minors were prohibited from acting as their tutors or curators.3 1 Marezoll, § 189. 2 I. 1. 25. 3 C. 5. 34. 8. N. 94. pupils. Three kinds of tutors. Testamentary tutor. Tutorat-law. Tutordative. Powers and duties of tutors. There are three kinds of tutors in the Roman law-a testamentary tutor, a tutor-at-law, and a tutor-dative. A testamentary tutor is one named by a father in his testament to his lawful children, and is preferred to every other tutor. From the confidence reposed in the father's choice, such a tutor is not obliged to find security for the faithful discharge of his office. If there was no nomination by the father, or if, from any cause, it became inoperative, a tutor-at-law was entitled to act. This sort of tutory devolved by the ancient Roman law on the nearest agnate, or agnates, where there were two or more equally near to the pupil, because they were entitled to the legal succession. By the law of Justinian, the distinction between agnates and cognates was abolished, both as regards legal succession and the office of tutor-at-law; and the mother or grandmother of the pupil was appointed tutorat-law, even preferably to the agnates.1 Any person who emancipated his child or other descendant below the age of puberty became his tutor-at-law. As patrons were entitled to the legal succession of their freedmen who died intestate and without issue, they also became tutors-at-law to children who were enfranchised in pupilarity; and those rights of patrons descended to their children. On the failure both of tutors-testamentary and tutors-atlaw, certain magistrates had the right to appoint a tutordative. The powers of the tutor extend generally over the person If the pupil be an infant-that is, under seven years of age cases the tutor appears to have had the option either of acting alone for the pupil, or of giving his consent to transactions entered into by the pupil.1 Pupils may better their condition, but cannot make it worse, without the authority of their tutors. Where there are mutual obligations arising from sales, leases, or other engagements, a person of full age who transacts with a pupil is bound by the contract, but the pupil is not bound unless the tutor has authorised it.2 No pupil could take up an inheritance without the authority of his tutor; for, although this may be profitable, it is sometimes attended with loss, when the debts of the deceased proprietor exceed the value of the inheritance.3 A tutor must manage the estates of the pupil like a good father of a family, and he will be liable for loss occasioned by bad management. He is entitled to recover debts, levy rents and interest, and he may sell the movable property, if this appear to be proper or necessary; but he cannot sell immovable subjects, such as lands or houses, except in a case of necessity, and then only after full inquiry under judicial authority. It is the tutor's duty to employ the pupil's funds profitably; and being a trustee, he cannot acquire any portion of the estate, or do any act connected with it for his own personal benefit.4 tion of Tutory expires-1st, By the pupil reaching puberty; 2d, TerminaBy the death either of the tutor or pupil; 3d, By the pupil tutory. before puberty changing his condition, so as to be no longer sui juris--as, for instance, from deportation or slavery, or from that species of adoption called adrogatio-because no one can be under tutory who is not sui juris; and, 4th, By supervening disqualification or removal of the tutor.5 1 I. 3. 19. 9. Mackeldey, § 611. Marezoll, § 186. 2 I. 1. 21. pr. 3 I. 1. 21. Mackeldey, § 628. 5 I. 1. 22. |