Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

of the property of a minor child, but the guardian of an adult woman had a much smaller role. Guardians of either sort came into being in the same ways. A father in his will might specify guardians for all his minor children and for his adult daughters. If he did not do so, the “nearest agnate” might be appointed (Chapter 15; for women this ceased to be an option in the mid first century ad). If this were not possible, then the state could appoint a guardian [17] . (Note that the husband, if any, has no place in any of this.) One thing that made the case of adult women different from that of children is that it was possible (and apparently common) to leave the woman her own choice of guardians. This became particularly important when the courts decided that the right was ongoing, that is, that she could replace her tutor at will. Wherever he had come from, the guardian of an adult woman had a fairly limited function. Unlike the guardian of children, he could not himself undertake any transactions with her property. He could only veto her decisions [12] . Moreover, he could act only in certain cases. Roughly, he could prevent the alienation (sale or gift) of so-called res mancipi (Chapter 13), the acceptance of an inheritance, and the making of a will on her part. So, for instance, he could block (but not force) the sale of slaves or land, but he had no say at all in her using cash to purchase something. Also unlike the guardian of children, the adult woman’s guardian had no responsibility to her, and so could not be sued or forced to give security. In at least one area, he was allowed to have what we might see as a conflict of interest. If a man became tutor as nearest agnate and exercised

168