The language of the law
The Legal Genealogist is at summer camp for genealogists this week — otherwise known as the Institute of Genealogy and Historical Research in Alabama. So the blog this week is focusing on terms — words and phrases — we may come across in legal documents that don’t always mean what we think they mean.
Words like today’s term of the day: under-tutor.
This is a gotcha for a lot of reasons.
One is because this doesn’t have anything to do with education, no matter what the graphic is that’s used to illustrate this post.
That’s only the first gotcha.
The next gotcha is the definition itself. It’s defined as follows: “In every tutorship there shall be an under-tutor, whom it shall be the duty of the judge to appoint at the time letters of tutorship are certified for the tutor.”1
Not very helpful, is it?
I mean, what the heck is a tutor in the first place?
That’s the second gotcha. The very definition takes us out to something else.
And, by the way, the definition of tutor is “This term corresponds nearly to ‘guardian,’ (i.e., a person appointed to have the care of the person of a minor and the administration of his estate.) except that the guardian of a minor who has passed a certain age is called ‘curator,’ and has powers and duties differing somewhat from those of a tutor.”2
Helpful? Not completely?
That’s because of the third gotcha. What’s this corresponding to a guardian business? Isn’t there a guardian everywhere?
Remember that there are two basic legal systems, not just one. And this is from the civil law system, the one that we don’t come across all that often, the one that comes from the Roman code of the Emperor Justinian rather than from the English common law.3
The one that applies in places like Louisiana.
And that’s what this term is from. It’s a civil law term, and this is a position that exists only in the civil law tradition.
And the under-tutor had a particular role: “It is the duty of the under-tutor to act for the minor whenever the interest of the minor is in opposition to the interest of the tutor.”4
In other words, if the person who was handling the affairs of the minor child had a conflict of interest that might lead that person to benefit himself rather than the child, the under-tutor stepped in to take over.
And by the way this isn’t just Louisiana… Quebec, Puerto Rico… anywhere that the civil law applies… or applied.
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1199, “under-tutor.” ↩
- Ibid., 1194, “tutor.” ↩
- See “Roman Legal Tradition and the Compilation of Justinian,” The Robbins Collection, Boalt Hall (https://www.law.berkeley.edu/library : accessed 25 Mar 2015). ↩
- Black, A Dictionary of Law, 1199, “under-tutor.” ↩
This is a timely article! I am researching an ancestor in Louisiana who was appointed tutrix for her minor children upon the death of her husband, but her husband’s former boss was appointed under-tutor and they both had to answer to a family council when disposing of the last of the deceased’s estate. This was the first time I’d seen the term “tutor” used in this context, and the first time I’d heard of the whole family council thing.
I’ve found “tutor” used this way once in Middlesex Co., Mass., land records (1740s), and the ward was called “pupil” throughout the quitclaim deed. The corresponding estate file used the expected terms “guardian” and “ward,” however. Just a curious side note.