But, in point of fact, there was no
element either of excess or of shortcoming in the circumstances which
gave their original form to the two kinds of guardianship. Neither the
one nor the other of them was based on the slightest consideration of
public or private convenience. The guardianship of male orphans was no
more designed originally to shield them till the arrival of years of
discretion than the tutelage of women was intended to protect the
other sex against its own feebleness. The reason why the death of the
father delivered the son from the bondage of the family was the son's
capacity for becoming himself the head of a new family and the founder
of a new Patria Potestas; no such capacity was possessed by the woman
and therefore she was _never_ enfranchised. Accordingly the
Guardianship of Male Orphans was a contrivance for keeping alive the
semblance of subordination to the family of the Parent, up to the time
when the child was supposed capable of becoming a parent himself. It
was a prolongation of the Patria Potestas up to the period of bare
physical manhood. It ended with puberty, for the rigour of the theory
demanded that it should do so. Inasmuch, however, as it did not
profess to conduct the orphan ward to the age of intellectual maturity
or fitness for affairs, it was quite unequal to the purposes of
general convenience; and this the Romans seem to have discovered at a
very early stage of their social progress. One of the very oldest
monuments of Roman legislation is the _Lex Laetoria_ or _Plaetoria_
which placed all free males who were of full years and rights under
the temporary control of a new class of guardians, called _Curatores_,
whose sanction was required to validate their acts or contracts. The
twenty-sixth year of the young man's age was the limit of this
statutory supervision; and it is exclusively with reference to the age
of twenty-five that the terms "majority" and "minority" are employed
in Roman law. _Pupilage_ or _wardship_ in modern jurisprudence had
adjusted itself with tolerable regularity to the simple principle of
protection to the immaturity of youth both bodily and mental. It has
its natural termination with years of discretion. But for protection
against physical weakness and for protection against intellectual
incapacity, the Romans looked to two different institutions, distinct
both in theory and design. The ideas attendant on both are combined in
the modern idea of guardians