Guardianship folly: the misgovernment of parens patriae and the forecast of its crumbling linkage to unprotected older americans in the

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GUSTUS TO JUSTINIAN 1–2 (2d ed. Cambridge Univ. Press 1932).

  1. See BUCKLAND, supra note 31, at 1. The XII Tables were framed by specifically appointed officers called Decemviri, enacted by the Comitia Centuriata. See id.; see also Brakel & Rock, supra note 12, at 1.

  2. Brakel & Rock, supra note 12, at 1 (citing Bruns, Fontes Juris Romani Antiqui

23–24 (Editio alterata aucta amendata, 1871)).

  1. See BUCKLAND, supra note 31, at 2. The Pontiffs were priestly officers of the Roman Empire with the power to alter the XII Table laws through binding interpreta- tion and formulation. See id. Their office gave the Pontiffs a great deal of power to gov- ern and misgovern. See id.

  2. See id. at 20. Certain jurists were authorized by the Emperor to respond under seal. See id. at 22. The jurist's response would be binding in those cases in which they were issued. See id. The Emperor himself was bound by responses which were unop- posed by opinion and indexed. See id.

  3. See BUCKLAND, supra note 31, at 134. Alieni juris are those under the control or authority of another person, such as an infant controlled by its father or guardian. See BLACK'S LAW DICTIONARY 72 (6th ed. 1990); see also infra note 40 for a definition of sui juris.

  4. See BUCKLAND, supra note 31, at 134, 142–43. Under civil law, a tutor is much like a guardian appointed to care for a minor and administer the minor's estate. See BLACK'S LAW DICTIONARY 1518 (6th ed. 1990).


Civil status was civil capacity39 and sui juris40 was considered with the principles of capitis deminutio.41 Capitis deminutio, which encompassed three legal degrees, maxima, media (or minor), and minima,42 had effect from a sort of civil death, like an “annihilation,” to those individuals with diminished capacity.43

The Roman laws evolved from the law of the persons to the law of the family and persons sui juris, which applied only to persons under disabilities.44 The Roman law applied to various defects under guardianship, both tutela or cura.45

Guardianship's universal nature was uniquely evidenced in Rome's XII Tables and treated as civil law.46 The governing principle that everyone sui juris under puberty with property or exceptions must have a tutor extended the potestas concept.47 The potestas was artificially extended for a male child until he founded his own potes- tas.48 Women required perpetual tutela since they could never have such power or authority.49 Practical reasoning for this was that

  1. See, e.g., BUCKLAND, supra note 31, at 134. Manus indicates power or control (as in physical coercion) and is often used interchangeably with potestas. See BLACK'S LAW DICTIONARY 965 (6th ed. 1990); see also infra note 47 for a definition of potestas.

  2. See BUCKLAND, supra note 31, at 35. “Caput is civil capacity.” Id. Caput means a person's civil status. See BLACK'S LAW DICTIONARY 212 (6th ed. 1990).

  1. Sui juris is defined as one who is independent due either to obtaining age of majority or being removed from the care of a guardian. See BLACK'S LAW DICTIONARY 1434 (6th ed. 1990).

  2. See BUCKLAND, supra note 31, at 134.

  3. See id. at 135–36. Maxima took one's liberty, citizenship, and family rights; media (or minor) withdrew citizenship but not liberty, such as banishment; and minima changed family status, severing paternal ties but leaving liberty and citizenship unaffect- ed. See id. at 135.

43. See id. at 135–36.

  1. See id. at 142.

  2. See id. The tutela form of guardianship continues to the age of puberty. See BLACK'S LAW DICTIONARY 1517 (6th ed. 1990). Cura is guardianship in civil law which began at puberty and ended at the completion of the 25th year. Id. at 380. Tutela was the more important, over minor-age males or females, or over women of any age based on gender. See BUCKLAND, supra note 31, at 142.

  3. See BUCKLAND, supra note 31, at 142.

  4. See id. at 142. Potestas also means power and is usually used in the context of a father's power over his children, or masters over slaves. See BLACK'S LAW DICTIONARY 1168 (6th ed. 1990).

  5. See BUCKLAND, supra note 31, at 142.

  6. See id.

tutela was more for the guardian's benefit than the child's.50 The tutor took the child's property upon the child's death; however, once a male child reached majority, the tutor's interest vanished and the tutela ceased.51

Similar to current law, the Roman Empire law restricted the appointment of tutors. For example, the law prohibited appointment of slaves, hostile aliens, and intermediate citizens.52 In addition, a woman could not be a tutor unless the father died with no prior ap- pointment of a tutor, the woman promised not to remarry, and the magistrate appointed her.53

With the above predicate, one can examine persons of intellec- tual, mental, and physical defect under Roman law. Justinian ex- cluded altogether deaf or dumb persons from being tutors.54 Howev- er, since lunacy was regarded as curable, it was a ground for tem- porary excuse but not a disqualification.55 If a lunatic was neither an imbecile nor dumb, the lunatic's property would not be transferred under the title and ownership of the tutor.56 This may explain why most families ascribed a declaration of lunacy, thus keeping the property's ownership interest out of the tutor's control.
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