The Historians' History of the World 05 [The Roman Republic]

Thus in the first case, his authority only extends to the fortune of the woman, not to her person. He has no control over the conduct of his ward, nor is it his prerogative to watch over her behaviour, or inquire into those of her acts which only affect her personally, and do not touch her fortune. For example, in the matter of marriage, all the pecuniary agreements which so often accompany it have to be authorised by the guardian; his consent is necessary, either to fix the dowry, or for the conventio in manum, which involves, as will be seen, a kind of general community of interest. But as for the marriage itself, how can it concern or prejudice the interests of the guardian, since the agnates, and not the children of the marriage, will inherit at the woman’s death? Thus the guardian’s authority is not necessary, either for the celebration of the marriage or in the choice of a husband. The woman herself chooses her husband, assisted sometimes, according to her age, by the advice of her mother and of her near relatives. Nor do all pecuniary transactions need the intervention of the guardian. Ulpian has given us the list, and we can separate the different proceedings that he enumerates, into two classes, the informal and the formal. In the first class we only find the alienations of res mancipi, either by direct or indirect covenants. Res mancipi were houses, lands, rustic servitude, slaves, beasts of burden—in a word, the soil and what was necessary to cultivate it; these were patrimonial property, and as the mainstay of the family, were placed under the vigilance and care of the guardian, so that their preservation was guaranteed. But besides this inalienable patrimony which she could not touch, the woman still had a large field of administration; she could acquire all sorts of property, dispose of the products of her fields and farm them out, dispose of her money—and thus pay her debts, recover her credit, lend, sell, bargain, and make free gifts.

For the formal proceedings, on the contrary, the law makes no distinctions and the guardian’s authority is always necessary. This will, at first sight, seem so little in harmony with the preceding that an explanation has been sought in considerations foreign to the principles of wardship. It has been said that the formal proceedings which usually took place before the magistrate, or before the witnesses who represented the Roman people, had too much resemblance to political proceedings to be permitted to others than citizens, and since woman was excluded from the comitia, she ought to be excluded from the Forum as well. But it is not true that the law courts were always closed to women, even at the time when all processes were under the form of a legis-actio; not only could she appear before the judges accompanied by her guardian, but she could even appear alone, either as a witness or as a representative of some one else—that is to say, whenever her personal interest was not at stake. She could also execute certain formal acts alone, as, for instance, emancipation, when she was under paternal authority; here again, the act could not touch her patrimony, as she had none. These are the cases in which the guardian’s authority was not necessary, although the proceeding was formal and these acts are just those which cannot touch or diminish the patrimony. Is it not, then, permissible to conclude that where the guardian can intervene in such cases, it is not on account of the formalities which surround them, it is because of the alienation they involve?

So far we have only spoken of natural guardians. But there are other kinds of guardians, and the Roman lawyers place the testamentary guardians first.

The father of the family, supreme in his own household, could, as we have already seen, dispose as he liked of the domestic patrimony; a strong reason, if he left a son and a daughter, for depriving the son of all rights of control and of the care of his sister’s hereditary portion, by taking the daughter away from his guardianship. How was this to be accomplished? By making over in his will the guardianship of his daughter to a stranger; this is testamentary guardianship. This guardianship almost amounted to independence for the woman, the testamentary guardian being a stranger to the family and having no right of succession to his ward’s property. What interest would he have in preventing her from disposing of her fortune as she pleased? To allow the father to choose a guardian for his daughter was really to allow his daughter to be free of all real and efficacious tutelage. We stop here, and will not tell how testamentary guardianship served as a model to the other kinds of wardships, how by the usurpation of these different nominal guardians the real guardianship, that of the family, was little by little restricted and undermined. We should be no longer describing this institution—we should be telling of its decay and downfall.