Produced by Howard Sauertieg
THE INSTITUTES OF JUSTINIAN
Translated into English by J. B. Moyle, D.C.L. of Lincoln's Inn,
Barrister-at-Law, Fellow and Late Tutor of New College, Oxford
Fifth Edition (1913)
PROOEMIVM
In the name of Our Lord, Jesus Christ.
The Emperor Caesar Flavius Justinian, conqueror of the Alamanni, the
Goths, the Franks, the Germans, the Antes, the Alani, the Vandals, the
Africans, pious, prosperous, renowned, victorious, and triumphant, ever
august,
To the youth desirous of studying the law:
The imperial majesty should be armed with laws as well as glorified
with arms, that there may be good government in times both of war and
of peace, and the ruler of Rome may not only be victorious over his
enemies, but may show himself as scrupulously regardful of justice as
triumphant over his conquered foes.
With deepest application and forethought, and by the blessing of God, we
have attained both of these objects. The barbarian nations which we have
subjugated know our valour, Africa and other provinces without number
being once more, after so long an interval, reduced beneath the sway of
Rome by victories granted by Heaven, and themselves bearing witness to
our dominion. All peoples too are ruled by laws which we have either
enacted or arranged. Having removed every inconsistency from the sacred
constitutions, hitherto inharmonious and confused, we extended our care
to the immense volumes of the older jurisprudence; and, like sailors
crossing the mid-ocean, by the favour of Heaven have now completed a
work of which we once despaired. When this, with God's blessing, had
been done, we called together that distinguished man Tribonian, master
and exquaestor of our sacred palace, and the illustrious Theophilus and
Dorotheus, professors of law, of whose ability, legal knowledge, and
trusty observance of our orders we have received many and genuine
proofs, and especially commissioned them to compose by our authority and
advice a book of Institutes, whereby you may be enabled to learn your
first lessons in law no longer from ancient fables, but to grasp them by
the brilliant light of imperial learning, and that your ears and minds
may receive nothing useless or incorrect, but only what holds good in
actual fact. And thus whereas in past time even the foremost of you were
unable to read the imperial constitutions until after four years, you,
who have been so honoured and fortunate as to receive both the beginning
and the end of your legal teaching from the mouth of the Emperor, can
now enter on the study of them without delay. After the completion
therefore of the fifty books of the Digest or Pandects, in which all
the earlier law has been collected by the aid of the said distinguished
Tribonian and other illustrious and most able men, we directed the
division of these same Institutes into four books, comprising the
first elements of the whole science of law. In these the law previously
obtaining has been briefly stated, as well as that which after becoming
disused has been again brought to light by our imperial aid. Compiled
from all the Institutes of our ancient jurists, and in particular from
the commentaries of our Gaius on both the Institutes and the common
cases, and from many other legal works, these Institutes were submitted
to us by the three learned men aforesaid, and after reading
and examining them we have given them the fullest force of our
constitutions.
Receive then these laws with your best powers and with the eagerness of
study, and show yourselves so learned as to be encouraged to hope that
when you have compassed the whole field of law you may have ability to
govern such portion of the state as may be entrusted to you.
Given at Constantinople the 21st day of November, in the third consulate
of the Emperor Justinian, Father of his Country, ever august.
BOOK I.
TITLES
I. Of Justice and Law
II. Of the law of nature, the law of nations,
and the civil law
III. Of the law of persons
IV. Of men free born
V. Of freedmen
VI. Of persons unable to manumit, and the
causes of their incapacity
VII. Of the repeal of the lex Fufia Caninia
VIII. Of persons independent or dependent
IX. Of paternal power
X. Of marriage
XI. Of adoptions
XII. Of the modes in which paternal power
is extinguished
XIII. Of guardianships
XIV. Who can be appointed guardians by will
XV. Of the statutory guardianship of agnates
XVI. Of loss of status
XVII. Of the statutory guardianship of patrons
XVIII. Of the statutory guardianship of parents
XIX. Of fiduciary guardianship
XX. Of Atilian guardians, and those appointed
under the lex Iulia et Titia
XXI. Of the authority of guardians
XXII. Of the modes in which guardianship
is terminated
XXIII. Of curators
XXIV. Of the security to be given by guardians
and curators
XXV. Of guardians' and curators' grounds
of exemption
XXVI. Of guardians or curators who are
suspected
TITLE I. OF JUSTICE AND LAW
Justice is the set and constant purpose which gives to every man his
due.
1 Jurisprudence is the knowledge of things divine and human, the science
of the just and the unjust.
2 Having laid down these general definitions, and our object being
the exposition of the law of the Roman people, we think that the most
advantageous plan will be to commence with an easy and simple path, and
then to proceed to details with a most careful and scrupulous exactness
of interpretation. Otherwise, if we begin by burdening the student's
memory, as yet weak and untrained, with a multitude and variety of
matters, one of two things will happen: either we shall cause him wholly
to desert the study of law, or else we shall bring him at last, after
great labour, and often, too, distrustful of his own powers (the
commonest cause, among the young, of ill-success), to a point which
he might have reached earlier, without such labour and confident in
himself, had he been led along a smoother path.
3 The precepts of the law are these: to live honestly, to injure no one,
and to give every man his due.
4 The study of law consists of two branches, law public, and law
private. The former relates to the welfare of the Roman State; the
latter to the advantage of the individual citizen. Of private law then
we may say that it is of threefold origin, being collected from the
precepts of nature, from those of the law of nations, or from those of
the civil law of Rome.
TITLE II. OF THE LAW OF NATURE, THE LAW OF NATIONS, AND THE CIVIL LAW
1 The law of nature is that which she has taught all animals; a law not
peculiar to the human race, but shared by all living creatures, whether
denizens of the air, the dry land, or the sea. Hence comes the union
of male and female, which we call marriage; hence the procreation and
rearing of children, for this is a law by the knowledge of which we see
even the lower animals are distinguished. The civil law of Rome, and
the law of all nations, differ from each other thus. The laws of every
people governed by statutes and customs are partly peculiar to itself,
partly common to all mankind. Those rules which a state enacts for its
own members are peculiar to itself, and are called civil law: those
rules prescribed by natural reason for all men are observed by all
peoples alike, and are called the law of nations. Thus the laws of
the Roman people are partly peculiar to itself, partly common to all
nations; a distinction of which we shall take notice as occasion offers.
2 Civil law takes its name from the state wherein it binds; for
instance, the civil law of Athens, it being quite correct to speak thus
of the enactments of Solon or Draco. So too we call the law of the Roman
people the civil law of the Romans, or the law of the Quirites; the law,
that is to say, which they observe, the Romans being called Quirites
after Quirinus. Whenever we speak, however, of civil law, without any
qualification, we mean our own; exactly as, when 'the poet' is spoken
of, without addition or qualification, the Greeks understand the great
Homer, and we understand Vergil. But the law of nations is common to the
whole human race; for nations have settled certain things for themselves
as occasion and the necessities of human life required. For instance,
wars arose, and then followed captivity and slavery, which are contrary
to the law of nature; for by the law of nature all men from the
beginning were born free. The law of nations again is the source of
almost all contracts; for instance, sale, hire, partnership, deposit,
loan for consumption, and very many others.
3 Our law is partly written, partly unwritten, as among the Greeks.
The written law consists of statutes, plebiscites, senatusconsults,
enactments of the Emperors, edicts of the magistrates, and answers of
those learned in the law.
4 A statute is an enactment of the Roman people, which it used to make
on the motion of a senatorial magistrate, as for instance a consul. A
plebiscite is an enactment of the commonalty, such as was made on the
motion of one of their own magistrates, as a tribune. The commonalty
differs from the people as a species from its genus; for 'the people'
includes the whole aggregate of citizens, among them patricians and
senators, while the term 'commonalty' embraces only such citizens as are
not patricians or senators. After the passing, however, of the statute
called the lex Hortensia, plebiscites acquired for the first time the
force of statutes.
5 A senatusconsult is a command and ordinance of the senate, for when
the Roman people had been so increased that it was difficult to assemble
it together for the purpose of enacting statutes, it seemed right that
the senate should be consulted instead of the people.
6 Again, what the Emperor determines has the force of a statute, the
people having conferred on him all their authority and power by the
'lex regia,' which was passed concerning his office and authority.
Consequently, whatever the Emperor settles by rescript, or decides in
his judicial capacity, or ordains by edicts, is clearly a statute: and
these are what are called constitutions. Some of these of course are
personal, and not to be followed as precedents, since this is not the
Emperor's will; for a favour bestowed on individual merit, or a
penalty inflicted for individual wrongdoing, or relief given without
a precedent, do not go beyond the particular person: though others are
general, and bind all beyond a doubt.
7 The edicts of the praetors too have no small legal authority, and
these we are used to call the 'ius honorarium,' because those who occupy
posts of honour in the state, in other words the magistrates, have given
authority to this branch of law. The curule aediles also used to issue
an edict relating to certain matters, which forms part of the ius
honorarium.
8 The answers of those learned in the law are the opinions and views of
persons authorized to determine and expound the law; for it was of old
provided that certain persons should publicly interpret the laws, who
were called jurisconsults, and whom the Emperor privileged to give
formal answers. If they were unanimous the judge was forbidden by
imperial constitution to depart from their opinion, so great was its
authority.
9 The unwritten law is that which usage has approved: for ancient
customs, when approved by consent of those who follow them, are like
statute.
10 And this division of the civil law into two kinds seems not
inappropriate, for it appears to have originated in the institutions of
two states, namely Athens and Lacedaemon; it having been usual in the
latter to commit to memory what was observed as law, while the Athenians
observed only what they had made permanent in written statutes.
11 But the laws of nature, which are observed by all nations alike, are
established, as it were, by divine providence, and remain ever fixed and
immutable: but the municipal laws of each individual state are subject
to frequent change, either by the tacit consent of the people, or by the
subsequent enactment of another statute.
12 The whole of the law which we observe relates either to persons, or
to things, or to actions. And first let us speak of persons: for it is
useless to know the law without knowing the persons for whose sake it
was established.
TITLE III. OF THE LAW OF PERSONS
In the law of persons, then, the first division is into free men and
slaves.
1 Freedom, from which men are called free, is a man's natural power of
doing what he pleases, so far as he is not prevented by force or law:
2 slavery is an institution of the law of nations, against nature
subjecting one man to the dominion of another.
3 The name 'slave' is derived from the practice of generals to order the
preservation and sale of captives, instead of killing them; hence they
are also called mancipia, because they are taken from the enemy by the
strong hand.
4 Slaves are either born so, their mothers being slaves themselves; or
they become so, and this either by the law of nations, that is to say
by capture in war, or by the civil law, as when a free man, over twenty
years of age, collusively allows himself to be sold in order that he may
share the purchase money.
5 The condition of all slaves is one and the same: in the conditions
of free men there are many distinctions; to begin with, they are either
free born, or made free.
TITLE IV. OF MEN FREE BORN
A freeborn man is one free from his birth, being the offspring of
parents united in wedlock, whether both be free born or both made free,
or one made free and the other free born. He is also free born if his
mother be free even though his father be a slave, and so also is
he whose paternity is uncertain, being the offspring of promiscuous
intercourse, but whose mother is free. It is enough if the mother be
free at the moment of birth, though a slave at that of conception: and
conversely if she be free at the time of conception, and then becomes a
slave before the birth of the child, the latter is held to be free born,
on the ground that an unborn child ought not to be prejudiced by the
mother's misfortune. Hence arose the question of whether the child of a
woman is born free, or a slave, who, while pregnant, is manumitted, and
then becomes a slave again before delivery. Marcellus thinks he is born
free, for it is enough if the mother of an unborn infant is free at any
moment between conception and delivery: and this view is right.
1 The status of a man born free is not prejudiced by his being placed
in the position of a slave and then being manumitted: for it has been
decided that manumission cannot stand in the way of rights acquired by
birth.
TITLE V. OF FREEDMEN
Those are freedmen, or made free, who have been manumitted from legal
slavery. Manumission is the giving of freedom; for while a man is in
slavery he is subject to the power once known as 'manus'; and from that
power he is set free by manumission. All this originated in the law
of nations; for by natural law all men were born free--slavery, and by
consequence manumission, being unknown. But afterwards slavery came in
by the law of nations; and was followed by the boon of manumission; so
that though we are all known by the common name of 'man,' three classes
of men came into existence with the law of nations, namely men free
born, slaves, and thirdly freedmen who had ceased to be slaves.
1 Manumission may take place in various ways; either in the holy church,
according to the sacred constitutions, or by default in a fictitious
vindication, or before friends, or by letter, or by testament or any
other expression of a man's last will: and indeed there are many other
modes in which freedom may be acquired, introduced by the constitutions
of earlier emperors as well as by our own.
2 It is usual for slaves to be manumitted by their masters at any time,
even when the magistrate is merely passing by, as for instance while the
praetor or proconsul or governor of a province is going to the baths or
the theatre.
3 Of freedmen there were formerly three grades; for those who were
manumitted sometimes obtained a higher freedom fully recognised by the
laws, and became Roman citizens; sometimes a lower form, becoming by
the lex Iunia Norbana Latins; and sometimes finally a liberty still more
circumscribed, being placed by the lex Aelia Sentia on the footing of
enemies surrendered at discretion. This last and lowest class, however,
has long ceased to exist, and the title of Latin also had become rare:
and so in our goodness, which desires to raise and improve in every
matter, we have amended this in two constitutions, and reintroduced the
earlier usage; for in the earliest infancy of Rome there was but one
simple type of liberty, namely that possessed by the manumitter, the
only distinction possible being that the latter was free born, while
the manumitted slave became a freedman. We have abolished the class of
'dediticii,' or enemies surrendered at discretion, by our constitution,
published among those our decisions, by which, at the suggestion of the
eminent Tribonian, our quaestor, we have set at rest the disputes of
the older law. By another constitution, which shines brightly among the
imperial enactments, and suggested by the same quaestor, we have altered
the position of the 'Latini Iuniani,' and dispensed with all the rules
relating to their condition; and have endowed with the citizenship
of Rome all freedmen alike, without regard to the age of the person
manuumitted, and nature of the master's ownership, or the mode of
manumission, in accordance with the earlier usage; with the addition of
many new modes in which freedom coupled with the Roman citizenship, the
only kind of freedom now known may be bestowed on slaves.
TITLE VI. OF PERSONS UNABLE TO MANUMIT, AND THE CAUSES OF THEIR
INCAPACITY
In some cases, however, manumission is not permitted; for an owner who
would defraud his creditors by an intended manumission attempts in vain
to manumit, the act being made of no effect by the lex Aelia Sentia.
1 A master, however, who is insolvent may institute one of his slaves
heir in his will, conferring freedom on him at the same time, so that
he may become free and his sole and necessary heir, provided no one else
takes as heir under the will, either because no one else was instituted
at all, or because the person instituted for some reason or other does
not take the inheritance. And this was a judicious provision of the
lex Aelia Sentia, for it was most desirable that persons in embarrassed
circumstances, who could get no other heir, should have a slave as
necessary heir to satisfy their creditors' claims, or that at least (if
he did not do this) the creditors might sell the estate in the slave's
name, so as to save the memory of the deceased from disrepute.
2 The law is the same if a slave be instituted heir without liberty
being expressly given him, this being enacted by our constitution in
all cases, and not merely where the master is insolvent; so that in
accordance with the modern spirit of humanity, institution will be
equivalent to a gift of liberty; for it is unlikely, in spite of the
omission of the grant of freedom, that one should have wished the person
whom one has chosen as one's heir to remain a slave, so that one should
have no heir at all.
3 If a person is insolvent at the time of a manumission, or becomes so
by the manumission itself, this is manumission in fraud of creditors.
It is, however, now settled law, that the gift of liberty is not avoided
unless the intention of the manumitter was fraudulent, even though his
property is in fact insufficient to meet his creditors' claims; for men
often hope and believe that they are better off than they really are.
Consequently, we understand a gift of liberty to be avoided only when
the creditors are defrauded both by the intention of the manumitter,
and in fact: that is to say, by his property being insufficient to meet
their claims.
4 The same lex Aelia Sentia makes it unlawful for a master under twenty
years of age to manumit, except in the mode of fictitious vindication,
preceded by proof of some legitimate motive before the council.
5 It is a legitimate motive of manumission if the slave to be manumitted
be, for instance, the father or mother of the manumitter, or his son
or daughter, or his natural brother or sister, or governor or nurse or
teacher, or fosterson or fosterdaughter or fosterbrother, or a slave
whom he wishes to make his agent, or a female slave whom he intends to
marry; provided he marry her within six months, and provided that the
slave intended as an agent is not less than seventeen years of age at
the time of manumission.
6 When a motive for manumission, whether true or false, has once been
proved, the council cannot withdraw its sanction.
7 Thus the lex Aelia Sentia having prescribed a certain mode of
manumission for owners under twenty, it followed that though a person
fourteen years of age could make a will, and therein institute an heir
and leave legacies, yet he could not confer liberty on a slave until he
had completed his twentieth year. But it seemed an intolerable hardship
that a man who had the power of disposing freely of all his property
by will should not be allowed to give his freedom to a single slave:
wherefore we allow him to deal in his last will as he pleases with his
slaves as with the rest of his property, and even to give them their
liberty if he will. But liberty being a boon beyond price, for which
very reason the power of manumission was denied by the older law to
owners under twenty years of age, we have as it were selected a middle
course, and permitted persons under twenty years of age to manumit their
slaves by will, but not until they have completed their seventeenth
and entered on their eighteenth year. For when ancient custom allowed
persons of this age to plead on behalf of others, why should not their
judgement be deemed sound enough to enable them to use discretion in
giving freedom to their own slaves?
TITLE VII. OF THE REPEAL OF THE LEX FUFIA CANINIA
Moreover, by the lex Fufia Caninia a limit was placed on the number of
slaves who could be manumitted by their master's testament: but this
law we have thought fit to repeal, as an obstacle to freedom and to some
extent invidious, for it was certainly inhuman to take away from a man
on his deathbed the right of liberating the whole of his slaves, which
he could have exercised at any moment during his lifetime, unless there
were some other obstacle to the act of manumission.
TITLE VIII. OF PERSONS INDEPENDENT OR DEPENDENT
Another division of the law relating to persons classifies them as
either independent or dependent. Those again who are dependent are in
the power either of parents or of masters. Let us first then consider
those who are dependent, for by learning who these are we shall at the
same time learn who are independent. And first let us look at those who
are in the power of masters.
1 Now slaves are in the power of masters, a power recognised by the
law of all nations, for all nations present the spectacle of masters
invested with power of life and death over slaves; and to whatever is
acquired through a slave his owner is entitled.
2 But in the present day no one under our sway is permitted to
indulge in excessive harshness towards his slaves, without some reason
recognised by law; for, by a constitution of the Emperor Antoninus Pius,
a man is made as liable to punishment for killing his own slave as for
killing the slave of another person; and extreme severity on the part of
masters is checked by another constitution whereby the same Emperor, in
answer to inquiries from presidents of provinces concerning slaves who
take refuge at churches or statues of the Emperor, commanded that on
proof of intolerable cruelty a master should be compelled to sell his
slaves on fair terms, so as to receive their value. And both of these
are reasonable enactments, for the public interest requires that no one
should make an evil use of his own property. The terms of the rescript
of Antoninus to Aelius Marcianus are as follow:--'The powers of masters
over their slaves ought to continue undiminished, nor ought any man to
be deprived of his lawful rights; but it is the master's own interest
that relief justly sought against cruelty, insufficient sustenance, or
intolerable wrong, should not be denied. I enjoin you then to look
into the complaints of the slaves of Iulius Sabinus, who have fled for
protection to the statue of the Emperor, and if you find them treated
with undue harshness or other ignominious wrong, order them to be sold,
so that they may not again fall under the power of their master; and the
latter will find that if he attempts to evade this my enactment, I shall
visit his offence with severe punishment.'
TITLE IX. OF PATERNAL POWER
Our children whom we have begotten in lawful wedlock are in our power.
1 Wedlock or matrimony is the union of male and female, involving the
habitual intercourse of daily life.
2 The power which we have over our children is peculiar to Roman
citizens, and is found in no other nation.
3 The offspring then of you and your wife is in your power, and so too
is that of your son and his wife, that is to say, your grandson and
granddaughter, and so on. But the offspring of your daughter is not in
your power, but in that of its own father.
TITLE X. OF MARRIAGE
Roman citizens are joined together in lawful wedlock when they are
united according to law, the man having reached years of puberty, and
the woman being of a marriageable age, whether they be independent or
dependent: provided that, in the latter case, they must have the consent
of the parents in whose power they respectively are, the necessity of
which, and even of its being given before the marriage takes place, is
recognised no less by natural reason than by law. Hence the question has
arisen, can the daughter or son of a lunatic lawfully contract marriage?
and as the doubt still remained with regard to the son, we decided that,
like the daughter, the son of a lunatic might marry even without the
intervention of his father, according to the mode prescribed by our
constitution.
1 It is not every woman that can be taken to wife: for marriage with
certain classes of persons is forbidden. Thus, persons related as
ascendant and descendant are incapable of lawfully intermarrying; for
instance, father and daughter, grandfather and granddaughter, mother and
son, grandmother and grandson, and so on ad infinitum; and the union of
such persons is called criminal and incestuous. And so absolute is
the rule, that persons related as ascendant and descendant merely by
adoption are so utterly prohibited from intermarriage that dissolution
of the adoption does not dissolve the prohibition: so that an
adoptive daughter or granddaughter cannot be taken to wife even after
emancipation.
2 Collateral relations also are subject to similar prohibitions, but
not so stringent. Brother and sister indeed are prohibited from
intermarriage, whether they are both of the same father and mother, or
have only one parent in common: but though an adoptive sister cannot,
during the subsistence of the adoption, become a man's wife, yet if the
adoption is dissolved by her emancipation, or if the man is emancipated,
there is no impediment to their intermarriage. Consequently, if a man
wished to adopt his son-in-law, he ought first to emancipate his
daughter: and if he wished to adopt his daughter-in-law, he ought first to
emancipate his son.
3 A man may not marry his brother's or his sister's daughter, or even
his or her granddaughter, though she is in the fourth degree; for when
we may not marry a person's daughter, we may not marry the granddaughter
either. But there seems to be no obstacle to a man's marrying the
daughter of a woman whom his father has adopted, for she is no relation
of his by either natural or civil law.
4 The children of two brothers or sisters, or of a brother and sister,
may lawfully intermarry.
5 Again, a man may not marry his father's sister, even though the tie
be merely adoptive, or his mother's sister: for they are considered to
stand in the relation of ascendants. For the same reason too a man may
not marry his great-aunt either paternal or maternal.
6 Certain marriages again are prohibited on the ground of affinity, or
the tie between a man or his wife and the kin of the other respectively.
For instance, a man may not marry his wife's daughter or his son's wife,
for both are to him in the position of daughters. By wife's daughter
or son's wife we must be understood to mean persons who have been thus
related to us; for if a woman is still your daughterinlaw, that is,
still married to your son, you cannot marry her for another reason,
namely, because she cannot be the wife of two persons at once. So too
if a woman is still your stepdaughter, that is, if her mother is still
married to you, you cannot marry her for the same reason, namely,
because a man cannot have two wives at the same time.
7 Again, it is forbidden for a man to marry his wife's mother or his
father's wife, because to him they are in the position of a mother,
though in this case too our statement applies only after the
relationship has finally terminated; otherwise, if a woman is still your
stepmother, that is, is married to your father, the common rule of law
prevents her from marrying you, because a woman cannot have two husbands
at the same time: and if she is still your wife's mother, that is, if
her daughter is still married to you, you cannot marry her because you
cannot have two wives at the same time.
8 But a son of the husband by another wife, and a daughter of the wife
by another husband, and vice versa, can lawfully intermarry, even though
they have a brother or sister born of the second marriage.
9 If a woman who has been divorced from you has a daughter by a second
husband, she is not your stepdaughter, but Iulian is of opinion that you
ought not to marry her, on the ground that though your son's betrothed
is not your daughterinlaw, nor your father's betrothed you stepmother,
yet it is more decent and more in accordance with what is right to
abstain from intermarrying with them.
10 It is certain that the rules relating to the prohibited degrees of
marriage apply to slaves: supposing, for instance, that a father and
daughter, or a brother and sister, acquired freedom by manumission.
11 There are also other persons who for various reasons are forbidden to
intermarry, a list of whom we have permitted to be inserted in the books
of the Digest or Pandects collected from the older law.
12 Alliances which infringe the rules here stated do not confer the
status of husband and wife, nor is there in such case either wedlock or
marriage or dowry. Consequently children born of such a connexion
are not in their father's power, but as regards the latter are in
the position of children born of promiscuous intercourse, who, their
paternity being uncertain, are deemed to have no father at all, and
who are called bastards, either from the Greek word denoting illicit
intercourse, or because they are fatherless. Consequently, on the
dissolution of such a connexion there can be no claim for return of
dowry. Persons who contract prohibited marriages are subjected to
penalties set forth in our sacred constitutions.
13 Sometimes it happens that children who are not born in their father's
power are subsequently brought under it. Such for instance is the case
of a natural son made subject to his father's power by being inscribed a
member of the curia; and so too is that of a child of a free woman with
whom his father cohabited, though he could have lawfully married her,
who is subjected to the power of his father by the subsequent execution
of a dowry deed according to the terms of our constitution: and the same
boon is in effect bestowed by that enactment on children subsequently
born of the same marriage.
TITLE XI. OF ADOPTIONS
Not only natural children are subject, as we said, to paternal power,
but also adoptive children.
1 Adoption is of two forms, being effected either by rescript of the
Emperor, or by the judicial authority of a magistrate. The first is the
mode in which we adopt independent persons, and this form of adoption
is called adrogation: the second is the mode in which we adopt a person
subject to the power of an ascendant, whether a descendant in the first
degree, as a son or daughter, or in a remoter degree, as a grandson,
granddaughter, great-grandson, or great-granddaughter.
2 But by the law, as now settled by our constitution, when a child in
power is given in adoption to a stranger by his natural father, the
power of the latter is not extinguished; no right passes to the adoptive
father, nor is the person adopted in his power, though we have given a
right of succession in case of the adoptive father dying intestate.
But if the person to whom the child is given in adoption by its natural
father is not a stranger, but the child's own maternal grandfather, or,
supposing the father to have been emancipated, its paternal grandfather,
or its great-grandfather paternal or maternal, in this case, because the
rights given by nature and those given by adoption are vested in one
and the same person, the old power of the adoptive father is left
unimpaired, the strength of the natural bond of blood being augmented by
the civil one of adoption, so that the child is in the family and
power of an adoptive father, between whom and himself there existed
antecedently the relationship described.
3 When a child under the age of puberty is adopted by rescript of
the Emperor, the adrogation is only permitted after cause shown, the
goodness of the motive and the expediency of the step for the pupil
being inquired into. The adrogation is also made under certain
conditions; that is to say, the adrogator has to give security to a
public agent or attorney of the people, that if the pupil should die
within the age of puberty, he will return his property to the persons
who would have succeeded him had no adoption taken place. The adoptive
father again may not emancipate them unless upon inquiry they are found
deserving of emancipation, or without restoring them their property.
Finally, if he disinherits him at death, or emancipates him in his
lifetime without just cause, he is obliged to leave him a fourth of
his own property, besides that which he brought him when adopted, or by
subsequent acquisition.
4 It is settled that a man cannot adopt another person older than
himself, for adoption imitates nature, and it would be unnatural for a
son to be older than his father. Consequently a man who desires either
to adopt or to adrogate a son ought to be older than the latter by the
full term of puberty, or eighteen years.
5 A man may adopt a person as grandson or granddaughter, or as
great-grandson or great-granddaughter, and so on, without having a son at
all himself; 6 and similarly he may adopt another man's son as grandson,
or another man's grandson as son.
7 If he wishes to adopt some one as grandson, whether as the son of an
adoptive son of his own, or of a natural son who is in his power, the
consent of this son ought to be obtained, lest a family heir be thrust
upon him against his will: but on the other hand, if a grandfather
wishes to give a grandson by a son in adoption to some one else, the
son's consent is not requisite.
8 An adoptive child is in most respects in the same position, as regards
the father, as a natural child born in lawful wedlock. Consequently
a man can give in adoption to another a person whom he has adopted by
imperial rescript, or before the praetor or governor of a province,
provided that in this latter case he was not a stranger (i.e. was a
natural descendant) before he adopted him himself.
9 Both forms of adoption agree in this point, that persons incapable
of procreation by natural impotence are permitted to adopt, whereas
castrated persons are not allowed to do so.
10 Again, women cannot adopt, for even their natural children are not
subject to their power; but by the imperial clemency they are enabled to
adopt, to comfort them for the loss of children who have been taken from
them.
11 It is peculiar to adoption by imperial rescript, that children in the
power of the person adrogated, as well as their father, fall under the
power of the adrogator, assuming the position of grandchildren. Thus
Augustus did not adopt Tiberius until Tiberius had adopted Germanicus,
in order that the latter might become his own grandson directly the
second adoption was made.
12 The old writers record a judicious opinion contained in the writings
of Cato, that the adoption of a slave by his master is equivalent to
manumission. In accordance with this we have in our wisdom ruled by a
constitution that a slave to whom his master gives the title of son by
the solemn form of a record is thereby made free, although this is not
sufficient to confer on him the rights of a son.
TITLE XII. OF THE MODES IN WHICH PATERNAL POWER IS EXTINGUISHED
Let us now examine the modes in which persons dependent on a superior
become independent. How slaves are freed from the power of their
masters can be gathered from what has already been said respecting their
manumission. Children under paternal power become independent at the
parent's death, subject, however, to the following distinction.
The death of a father always releases his sons and daughters from
dependence; the death of a grandfather releases his grandchildren from
dependence only provided that it does not subject them to the power of
their father. Thus, if at the death of the grandfather the father is
alive and in his power, the grandchildren, after the grandfather's
death, are in the power of the father; but if at the time of the
grandfather's death the father is dead, or not subject to the
grandfather, the grandchildren will not fall under his power, but become
independent.
1 As deportation to an island for some penal offence entails loss of
citizenship, such removal of a man from the list of Roman citizens has,
like his death, the effect of liberating his children from his power;
and conversely, the deportation of a person subject to paternal power
terminates the power of the parent. In either case, however, if the
condemned person is pardoned by the grace of the Emperor, he recovers
all his former rights.
2 Relegation to an island does not extinguish paternal power, whether it
is the parent or the child who is relegated.
3 Again, a father's power is extinguished by his becoming a 'slave of
punishment,' for instance, by being condemned to the mines or exposed to
wild beasts.
4 A person in paternal power does not become independent by entering
the army or becoming a senator, for military service or consular
dignity does not set a son free from the power of his father. But by
our constitution the supreme dignity of the patriciate frees a son from
power immediately on the receipt of the imperial patent; for who would
allow anything so unreasonable as that, while a father is able by
emancipation to release his son from the tie of his power, the imperial
majesty should be unable to release from dependence on another the man
whom it has selected as a father of the State? 5 Again, capture of the
father by the enemy makes him a slave of the latter; but the status
of his children is suspended by his right of subsequent restoration by
postliminium; for on escape from captivity a man recovers all his former
rights, and among them the right of paternal power over his children,
the law of postliminium resting on a fiction that the captive has never
been absent from the state. But if he dies in captivity the son is
reckoned to have been independent from the moment of his father's
capture. So too, if a son or a grandson is captured by the enemy, the
power of his ascendant is provisionally suspended, though he may again
be subjected to it by postliminium. This term is derived from 'limen'
and 'post,' which explains why we say that the person who has been
captured by the enemy and has come back into our territories has
returned by postliminium: for just as the threshold forms the boundary
of a house, so the ancients represented the boundaries of the empire as
a threshold; and this is also the origin of the term 'limes, signifying
a kind of end and limit. Thus postliminium means that the captive
returns by the same threshold at which he was lost. A captive who is
recovered after a victory over the enemy is deemed to have returned by
postliminium.
6 Emancipation also liberates children from the power of the parent.
Formerly it was effected either by the observance of an old form
prescribed by statute by which the son was fictitiously sold and then
manumitted, or by imperial rescript. Our forethought, however, has
amended this by a constitution, which has abolished the old fictitious
form, and enabled parents to go directly to a competent judge or
magistrate, and in his presence release their sons or daughters,
grandsons or granddaughters, and so on, from their power. After this,
the father has by the praetor's edict the same rights over the property
of the emancipated child as a patron has over the property of his
freedman: and if at the time of emancipation the child, whether son or
daughter, or in some remoter degree of relationship, is beneath the age
of puberty, the father becomes by the emancipation his or her guardian.
7 It is to be noted, however, that a grandfather who has both a son,
and by that son a grandson or granddaughter, in his power, may either
release the son from his power and retain the grandson or granddaughter,
or emancipate both together; and a great-grandfather has the same
latitude of choice.
8 Again, if a father gives a son whom he has in his power in adoption
to the son's natural grandfather or great-grandfather, in accordance
with our constitution on this subject, that is to say, by declaring
his intention, before a judge with jurisdiction in the matter, in the
official records, and in the presence and with the consent of the person
adopted, the natural father's power is thereby extinguished, and passes
to the adoptive father, adoption by whom under these circumstances
retains, as we said, all its old legal consequences.
9 It is to be noted, that if your daughterinlaw conceives by your son,
and you emancipate or give the latter in adoption during her pregnancy,
the child when born will be in your power; but if the child is conceived
after its father's emancipation or adoption, it is in the power of its
natural father or its adoptive grandfather, as the case may be.
10 Children, whether natural or adoptive, are only very rarely able to
compel their parent to release them from his power.
TITLE XIII. OF GUARDIANSHIPS
Let us now pass on to another classification of persons. Persons
not subject to power may still be subject either to guardians or to
curators, or may be exempt from both forms of control. We will first
examine what persons are subject to guardians and curators, and thus
we shall know who are exempt from both kinds of control. And first of
persons subject to guardianship or tutelage.
1 Guardianship, as defined by Servius, is authority and control over a
free person, given and allowed by the civil law, in order to protect one
too young to defend himself:
2 and guardians are those persons who possess this authority and
control, their name being derived from their very functions; for they
are called guardians as being protectors and defenders, just as those
entrusted with the care of sacred buildings are called 'aeditui.'
3 The law allows a parent to appoint guardians in his will for those
children in his power who have not attained the age of puberty, without
distinction between sons and daughters; but a grandson or granddaughter
can receive a testamentary guardian only provided that the death of the
testator does not bring them under the power of their own father.
Thus, if your son is in your power at the time of your death, your
grandchildren by him cannot have a guardian given them by your will,
although they are in your power, because your death leaves them in the
power of their father.
4 And as in many other matters afterborn children are treated on the
footing of children born before the execution of the will, so it is
ruled that afterborn children, as well as children born before the will
was made, may have guardians therein appointed to them, provided that
if born in the testator's lifetime they would be family heirs and in his
power.
5 If a testamentary guardian be given by a father to his emancipated
son, he must be approved by the governor in all cases, though inquiry
into the case is unnecessary.
TITLE XIV. WHO CAN BE APPOINTED GUARDIANS BY WILL
1 Persons who are in the power of others may be appointed testamentary
guardians no less than those who are independent; and a man can also
validly appoint one of his own slaves as testamentary guardian, giving
him at the same time his liberty; and even in the absence of express
manumission his freedom is to be presumed to have been tacitly conferred
on him, whereby his appointment becomes a valid act, although of course
it is otherwise if the testator appointed him guardian in the erroneous
belief that he was free. The appointment of another man's slave as
guardian, without any addition or qualification, is void, though valid
if the words 'when he shall be free' are added: but this latter form is
ineffectual if the slave is the testator's own, the appointment being
void from the beginning.
2 If a lunatic or minor is appointed testamentary guardian, he cannot
act until, if a lunatic, he recovers his faculties, and, if a minor, he
attains the age of twentyfive years.
3 There is no doubt that a guardian may be appointed for and from a
certain time, or conditionally, or before the institution of the heir.
4 A guardian cannot, however, be appointed for a particular matter or
business, because his duties relate to the person, and not merely to a
particular business or matter.
5 If a man appoints a guardian to his sons or daughters, he is held to
have intended them also for such as may be afterborn, for the latter
are included in the terms son and daughter. In the case of grandsons,
a question may arise whether they are implicitly included in an
appointment of guardians to sons; to which we reply, that they are
included in an appointment of guardians if the term used is 'children,'
but not if it is 'sons': for the words son and grandson have quite
different meanings. Of course an appointment to afterborn children
includes all children, and not sons only.
TITLE XV. OF THE STATUTORY GUARDIANSHIP OF AGNATES
In default of a testamentary guardian, the statute of the Twelve Tables
assigns the guardianship to the nearest agnates, who are hence called
statutory guardians.
1 Agnates are persons related to one another by males, that is, through
their male ascendants; for instance, a brother by the same father, a
brother's son, or such son's son, a father's brother, his son or son's
son. But persons related only by blood through females are not agnates,
but merely cognates. Thus the son of your father's sister is no agnate
of yours, but merely your cognate, and vice versa; for children are
member's of their father's family, and not of your mother's.
2 It was said that the statute confers the guardianship, in case
of intestacy, on the nearest agnates; but by intestacy here must be
understood not only complete intestacy of a person having power to
appoint a testamentary guardian, but also the mere omission to make
such appointment, and also the case of a person appointed testamentary
guardian dying in the testator's lifetime.
3 Loss of status of any kind ordinarily extinguishes rights by agnation,
for agnation is a title of civil law. Not every kind of loss of status,
however, affects rights by cognation; because civil changes cannot
affect rights annexed to a natural title to the same extent that they
can affect those annexed to a civil one.
TITLE XVI. OF LOSS OF STATUS
Loss of status, or change in one's previous civil rights, is of three
orders, greatest, minor or intermediate, and least.
1 The greatest loss of status is the simultaneous loss of citizenship
and freedom, exemplified in those persons who by a terrible sentence are
made 'slaves of punishment,' in freedmen condemned for ingratitude to
their patrons, and in those who allow themselves to be sold in order to
share the purchase money when paid.
2 Minor or intermediate loss of status is loss of citizenship
unaccompanied by loss of liberty, and is incident to interdiction of
fire and water and to deportation to an island.
3 The least loss of status occurs when citizenship and freedom are
retained, but a man's domestic position is altered, and is exemplified
by adrogation and emancipation.
4 A slave does not suffer loss of status by being manumitted, for while
a slave he had no civil rights:
5 and where the change is one of dignity, rather than of civil rights,
there is no loss of status; thus it is no loss of status to be removed
from the senate.
6 When it was said that rights by cognation are not affected by loss of
status, only the least loss of status was meant; by the greatest loss
of status they are destroyed--for instance, by a cognate's becoming
a slave--and are not recovered even by subsequent manumission. Again,
deportation to an island, which entails minor or intermediate loss of
status, destroys rights by cognation.
7 When agnates are entitled to be guardians, it is not all who are so
entitled, but only those of the nearest degree, though if all are in the
same degree, all are entitled.
TITLE XVII. OF THE STATUTORY GUARDIANSHIP OF PATRONS
The same statute of the Twelve Tables assigns the guardianship of
freedmen and freedwomen to the patron and his children, and this
guardianship, like that of agnates, is called statutory guardianship;
not that it is anywhere expressly enacted in that statute, but because
its interpretation by the jurists has procured for it as much reception
as it could have obtained from express enactment: the fact that the
inheritance of a freedman or freedwoman, when they die intestate, was
given by the statute to the patron and his children, being deemed a
proof that they were intended to have the guardianship also, partly
because in dealing with agnates the statute coupled guardianship with
succession, and partly on the principle that where the advantage of
the succession is, there, as a rule, ought too to be the burden of the
guardianship. We say 'as a rule,' because if a slave below the age of
puberty is manumitted by a woman, though she is entitled, as patroness,
to the succession, another person is guardian.
TITLE XVIII. OF THE STATUTORY GUARDIANSHIP OF PARENTS
The analogy of the patron guardian led to another kind of socalled
statutory guardianship, namely that of a parent over a son or daughter,
or a grandson or granddaughter by a son, or any other descendant through
males, whom he emancipates below the age of puberty: in which case he
will be statutory guardian.
TITLE XIX. OF FIDUCIARY GUARDIANSHIP
There is another kind of guardianship known as fiduciary guardianship,
which arises in the following manner. If a parent emancipates a son or
daughter, a grandson or granddaughter, or other descendant while under
the age of puberty, he becomes their statutory guardian: but if at his
death he leaves male children, they become fiduciary guardians of their
own sons, or brothers and sisters, or other relatives who had been thus
emancipated. But on the decease of a patron who is statutory guardian
his children become statutory guardians also; for a son of a deceased
person, supposing him not to have been emancipated during his father's
lifetime, becomes independent at the latter's death, and does not
fall under the power of his brothers, nor, consequently, under their
guardianship; whereas a freedman, had he remained a slave, would at
his master's death have become the slave of the latter's children. The
guardianship, however, is not cast on these persons unless they are of
full age, which indeed has been made a general rule in guardianship and
curatorship of every kind by our constitution.
TITLE XX. OF ATILIAN GUARDIANS, AND THOSE APPOINTED UNDER THE LEX IULIA
ET TITIA
Failing every other kind of guardian, at Rome one used to be appointed
under the lex Atilia by the praetor of the city and the majority of the
tribunes of the people; in the provinces one was appointed under the lex
Iulia et Titia by the president of the province.
1 Again, on the appointment of a testamentary guardian subject to a
condition, or on an appointment limited to take effect after a certain
time, a substitute could be appointed under these statutes during the
pendency of the condition, or until the expiration of the term: and
even if no condition was attached to the appointment of a testamentary
guardian, a temporary guardian could be obtained under these statutes
until the succession had vested. In all these cases the office of the
guardian so appointed determined as soon as the condition was fulfilled,
or the term expired, or the succession vested in the heir.
2 On the capture of a guardian by the enemy, the same statutes regulated
the appointment of a substitute, who continued in office until the
return of the captive; for if he returned, he recovered the guardianship
by the law of postliminium.
3 But guardians have now ceased to be appointed under these statutes,
the place of the magistrates directed by them to appoint being taken,
first, by the consuls, who began to appoint guardians to pupils of
either sex after inquiry into the case, and then by the praetors, who
were substituted for the consuls by the imperial constitutions; for
these statutes contained no provisions as to security to be taken from
guardians for the safety of their pupils' property, or compelling them
to accept the office in case of disinclination.
4 Under the present law, guardians are appointed at Rome by the
prefect of the city, and by the praetor when the case falls within his
jurisdiction; in the provinces they are appointed, after inquiry, by
the governor, or by inferior magistrates at the latter's behest if the
pupil's property is of no great value.
5 By our constitution, however, we have done away with all difficulties
of this kind relating to the appointing person, and dispensed with the
necessity of waiting for an order from the governor, by enacting that if
the property of the pupil or adult does not exceed five hundred solidi,
guardians or curators shall be appointed by the officers known as
defenders of the city, along with the holy bishop of the place, or in
the presence of other public persons, or by the magistrates, or by the
judge of the city of Alexandria; security being given in the amounts
required by the constitution, and those who take it being responsible if
it be insufficient.
6 The wardship of children below the age of puberty is in accordance
with the law of nature, which prescribes that persons of immature years
shall be under another's guidance and control.
7 As guardians have the management of their pupils' business, they are
liable to be sued on account of their administration as soon as the
pupil attains the age of puberty.
TITLE XXI. OF THE AUTHORITY OF GUARDIANS
In some cases a pupil cannot lawfully act without the authority of
his guardian, in others he can. Such authority, for instance, is not
necessary when a pupil stipulates for the delivery of property, though
it is otherwise where he is the promisor; for it is an established rule
that the guardian's authority is not necessary for any act by which the
pupil simply improves his own position, though it cannot be dispensed
with where he proposes to make it worse. Consequently, unless the
guardian authorizes all transactions generating bilateral obligations,
such as sale, hire, agency, and deposit, the pupil is not bound,
though he can compel the other contracting party to discharge his own
obligation.
1 Pupils, however, require their guardian's authority before they can
enter on an inheritance, demand the possession of goods, or accept an
inheritance by way of trust, even though such act be advantageous to
them, and involves no chance of loss.
2 If the guardian thinks the transaction will be beneficial to his
pupil, his authority should be given presently and on the spot.
Subsequent ratification, or authority given by letter, has no effect.
3 In case of a suit between guardian and pupil, as the former cannot
lawfully authorize an act in which he is personally concerned or
interested, a curator is now appointed, in lieu of the old praetorian
guardian, with whose cooperation the suit is carried on, his office
determining as soon as it is decided.
TITLE XXII. OF THE MODES IN WHICH GUARDIANSHIP IS TERMINATED
Pupils of either sex are freed from guardianship when they reach the age
of puberty, which the ancients were inclined to determine, in the
case of males, not only by age, but also by reference to the physical
development of individuals. Our majesty, however, has deemed it not
unworthy of the purity of our times to apply in the case of males also
the moral considerations which, even among the ancients, forbade in the
case of females as indecent the inspection of the person. Consequently
by the promulgation of our sacred constitution we have enacted that
puberty in males shall be considered to commence immediately on
the completion of the fourteenth year, leaving unaltered the rule
judiciously laid down by the ancients as to females, according to which
they are held fit for marriage after completing their twelfth year.
1 Again, tutelage is terminated by adrogation or deportation of the
pupil before he attains the age of puberty, or by his being reduced to
slavery or taken captive by the enemy.
2 So too if a testamentary guardian be appointed to hold office until
the occurrence of a condition, on this occurrence his office determines.
3 Similarly tutelage is terminated by the death either of pupil or of
guardian.
4 If a guardian suffers such a loss of status as entails loss of either
liberty or citizenship, his office thereby completely determines. It is,
however, only the statutory kind of guardianship which is destroyed by
a guardian's undergoing the least loss of status, for instance, by his
giving himself in adoption. Tutelage is in every case put an end to by
the pupil's suffering loss of status, even of the lowest order.
5 Testamentary guardians appointed to serve until a certain time lay
down their office when that time arrives.
6 Finally, persons cease to be guardians who are removed from their
office on suspicion, or who are enabled to lay down the burden of
the tutelage by a reasonable ground of excuse, according to the rules
presently stated.
TITLE XXIII. OF CURATORS
Males, even after puberty, and females after reaching marriageable
years, receive curators until completing their twenty-fifth year,
because, though past the age fixed by law as the time of puberty, they
are not yet old enough to administer their own affairs.
1 Curators are appointed by the same magistrates who appoint guardians.
They cannot legally be appointed by will, though such appointment, if
made, is usually confirmed by an order of the praetor or governor of the
province.
2 A person who has reached the age of puberty cannot be compelled
to have a curator, except for the purpose of conducting a suit: for
curators, unlike guardians, can be appointed for a particular matter.
3 Lunatics and prodigals, even though more than twentyfive years of age,
are by the statute of the Twelve Tables placed under their agnates as
curators; but now, as a rule, curators are appointed for them at Rome
by the prefect of the city or praetor, and in the provinces by the
governor, after inquiry into the case.
4 Curators should also be given to persons of weak mind, to the deaf,
the dumb, and those suffering from chronic disease, because they are not
competent to manage their own affairs.
5 Sometimes even pupils have curators, as, for instance, when a
statutory guardian is unfit for his office: for if a pupil already has
one guardian, he cannot have another given him. Again, if a testamentary
guardian, or one appointed by the praetor or governor, is not a good man
of business, though perfectly honest in his management of the pupil's
affairs, it is usual for a curator to be appointed to act with
him. Again, curators are usually appointed in the room of guardians
temporarily excused from the duties of their office.
6 If a guardian is prevented from managing his pupil's affairs by
illhealth or other unavoidable cause, and the pupil is absent or an
infant, the praetor or governor of the province will, at the guardian's
risk, appoint by decree a person selected by the latter to act as agent
of the pupil.
TITLE XXIV. OF THE SECURITY TO BE GIVEN BY GUARDIANS AND CURATORS
To prevent the property of pupils and of persons under curators from
being wasted or diminished by their curators or guardians the
praetor provides for security being given by the latter against
maladministration. This rule, however, is not without exceptions, for
testamentary guardians are not obliged to give security, the testator
having had full opportunities of personally testing their fidelity
and carefulness, and guardians and curators appointed upon inquiry are
similarly exempted, because they have been expressly chosen as the best
men for the place.
1 If two or more are appointed by testament, or by a magistrate upon
inquiry, any one of them may offer security for indemnifying the pupil
or person to whom he is curator against loss, and be preferred to his
colleague, in order that he may either obtain the sole administration,
or else induce his colleague to offer larger security than himself, and
so become sole administrator by preference. Thus he cannot directly call
upon his colleague to give security; he ought to offer it himself, and
so give his colleague the option of receiving security on the one hand,
or of giving it on the other. If none of them offer security, and the
testator left directions as to which was to administer the property,
this person must undertake it: in default of this, the office is cast
by the praetor's edict on the person whom the majority of guardians or
curators shall choose. If they cannot agree, the praetor must interpose.
The same rule, authorizing a majority to elect one to administer the
property, is to be applied where several are appointed after inquiry by
a magistrate.
2 It is to be noted that, besides the liability of guardians and
curators to their pupils, or the persons for whom they act, for the
management of their property, there is a subsidiary action against the
magistrate accepting the security, which may be resorted to where
all other remedies prove inadequate, and which lies against those
magistrates who have either altogether omitted to take security from
guardians or curators, or taken it to an insufficient amount. According
to the doctrines stated by the jurists, as well as by imperial
constitutions, this action may be brought against the magistrate's heirs
as well as against him personally;
3 and these same constitutions ordain that guardians or curators who
make default in giving security may be compelled to do so by legal
distraint of their goods.
4 This action, however, will not lie against the prefect of the city,
the praetor, or the governor of a province, or any other magistrate
authorized to appoint guardians, but only against those to whose usual
duties the taking of security belongs.
TITLE XXV. OF GUARDIANS' AND CURATORS' GROUNDS OF EXEMPTION
There are various grounds on which persons are exempted from serving the
office of guardian or curator, of which the most common is their having
a certain number of children, whether in power or emancipated. If, that
is to say, a man has, in Rome, three children living, in Italy four, or
in the provinces five, he may claim exemption from these, as from other
public offices; for it is settled that the office of a guardian or
curator is a public one. Adopted children cannot be reckoned for this
purpose, though natural children given in adoption to others may:
similarly grandchildren by a son may be reckoned, so as to represent
their father, while those by a daughter may not. It is, however, only
living children who avail to excuse their fathers from serving as
guardian or curator; such as have died are of no account, though the
question has arisen whether this rule does not admit of an exception
where they have died in war; and it is agreed that this is so, but only
where they have fallen on the field of battle: for these, because they
have died for their country, are deemed to live eternally in fame.
1 The Emperor Marcus, too, replied by rescript, as is recorded in his
Semestria, that employment in the service of the Treasury is a valid
excuse from serving as guardian or curator so long as that employment
lasts.
2 Again, those are excused from these offices who are absent in the
service of the state; and a person already guardian or curator who has
to absent himself on public business is excused from acting in either of
these capacities during such absence, a curator being appointed to act
temporarily in his stead. On his return, he has to resume the burden
of tutelage, without being entitled to claim a year's exemption, as has
been settled since the opinion of Papinian was delivered in the fifth
book of his replies; for the year's exemption or vacation belongs only
to such as are called to a new tutelage.
3 By a rescript of the Emperor Marcus persons holding any magistracy may
plead this as a ground of exemption, though it will not enable them to
resign an office of this kind already entered upon.
4 No guardian or curator can excuse himself on the ground of an action
pending between himself and his ward, unless it relates to the latter's
whole estate or to an inheritance.
5 Again, a man who is already guardian or curator to three persons
without having sought after the office is entitled to exemption from
further burdens of the kind so long as he is actually engaged with
these, provided that the joint guardianship of several pupils, or
administration of an undivided estate, as where the wards are brothers,
is reckoned as one only.
6 If a man can prove that through poverty he is unequal to the burden of
the office, this, according to rescripts of the imperial brothers and of
the Emperor Marcus, is a valid ground of excuse.
7 Illhealth again is a sufficient excuse if it be such as to prevent a
man from attending to even his own affairs:
8 and the Emperor Pius decided by a rescript that persons unable to read
ought to be excused, though even these are not incapable of transacting
business.
9 A man too is at once excused if he can show that a father has
appointed him testamentary guardian out of enmity, while conversely no
one can in any case claim exemption who promised the ward's father that
he would act as guardian to them:
10 and it was settled by a rescript of M. Aurelius and L. Verus that the
allegation that one was unacquainted with the pupil's father cannot be
admitted as a ground of excuse.
11 Enmity against the ward's father, if extremely bitter, and if there
was no reconciliation, is usually accepted as a reason for exemption
from the office of guardian;
12 and similarly a person can claim to be excused whose status or civil
rights have been disputed by the father of the ward in an action.
13 Again, a person over seventy years of age can claim to be excused
from acting as guardian or curator, and by the older law persons less
than twentyfive were similarly exempted. But our constitution, having
forbidden the latter to aspire to these functions, has made excuses
unnecessary. The effect of this enactment is that no pupil or
person under twentyfive years of age is to be called to a statutory
guardianship; for it was most incongruous to place persons under the
guardianship or administration of those who are known themselves to need
assistance in the management of their own affairs, and are themselves
governed by others.
14 The same rule is to be observed with soldiers, who, even though they
desire it, may not be admitted to the office of guardian:
15 and finally grammarians, rhetoricians, and physicians at Rome, and
those who follow these callings in their own country and are within the
number fixed by law, are exempted from being guardians or curators.
16 If a person who has several grounds of excuse wishes to obtain
exemption, and some of them are not allowed, he is not prohibited from
alleging others, provided he does this within the time prescribed. Those
desirous of excusing themselves do not appeal, but ought to allege
their grounds of excuse within fifty days next after they hear of their
appointment, whatever the form of the latter, and whatever kind of
guardians they may be, if they are within a hundred miles of the place
where they were appointed: if they live at a distance of more than a
hundred miles, they are allowed a day for every twenty miles, and thirty
days in addition, but this time, as Scaevola has said, must never be so
reckoned as to amount to less than fifty days.
17 A person appointed guardian is deemed to be appointed to the whole
patrimony;
18 and after he has once acted as guardian he cannot be compelled
against his will to become the same person's curator--not even if the
father who appointed him testamentary guardian added in the will that
he made him curator, too, as soon as the ward reached fourteen years of
age--this having been decided by a rescript of the Emperors Severus and
Antoninus.
19 Another rescript of the same emperors settled that a man is
entitled to be excused from becoming his own wife's curator, even after
intermeddling with her affairs.
20 No man is discharged from the burden of guardianship who has procured
exemption by false allegations.
TITLE XXVI. OF GUARDIANS OR CURATORS WHO ARE SUSPECTED
The accusation of guardians or curators on suspicion originated in the
statute of the Twelve Tables;
1 the removal of those who are accused on suspicion is part of the
jurisdiction, at Rome, of the praetor, and in the provinces of their
governors and of the proconsul's legate.
2 Having shown what magistrates can take cognizance of this subject, let
us see what persons are liable to be accused on suspicion. All guardians
are liable, whether appointed by testament or otherwise; consequently
even a statutory guardian may be made the object of such an accusation.
But what is to be said of a patron guardian? Even here we must reply
that he too is liable; though we must remember that his reputation must
be spared in the event of his removal on suspicion.
3 The next point is to see what persons may bring this accusation; and
it is to be observed that the action partakes of a public character,
that is to say, is open to all. Indeed, by a rescript of Severus and
Antoninus even women are made competent to bring it, but only those who
can allege a close tie of affection as their motive; for instance, a
mother, nurse, grandmother, or sister. And the praetor will allow any
woman to prefer the accusation in whom he finds an affection real enough
to induce her to save a pupil from suffering harm, without seeming to be
more forward than becomes her sex.
4 Persons below the age of puberty cannot accuse their guardians on
suspicion; but by a rescript of Severus and Antoninus it has been
permitted to those who have reached that age to deal thus with their
curators, after taking the advice of their nearest relations.
5 A guardian is 'suspected' who does not faithfully discharge his
tutorial functions, though he may be perfectly solvent, as was the
opinion also of Julian. Indeed, Julian writes that a guardian may be
removed on suspicion before he commences his administration, and a
constitution has been issued in accordance with this view.
6 A person removed from office on suspicion incurs infamy if his offence
was fraud, but not if it was merely negligence.
7 As Papinian held, on a person being accused on suspicion he is
suspended from the administration until the action is decided.
8 If a guardian or curator who is accused on suspicion dies after the
commencement of the action, but before it has been decided, the action
is thereby extinguished;
9 and if a guardian fails to appear to a summons of which the object is
to fix by judicial order a certain rate of maintenance for the pupil,
the rescript of the Emperors Severus and Antoninus provides that the
pupil may be put in possession of the guardian's property, and orders
the sale of the perishable portions thereof after appointment of a
curator. Consequently, a guardian may be removed as suspected who does
not provide his pupil with sufficient maintenance.
10 If, on the other hand, the guardian appears, and alleges that the
pupil's property is too inconsiderable to admit of maintenance being
decreed, and it is shown that the allegation is false, the proper course
is for him to be sent for punishment to the prefect of the city, like
those who purchase a guardianship with bribery.
11 So too a freedman, convicted of having acted fraudulently as guardian
of the sons or grandsons of his patron, should be sent to the prefect of
the city for punishment.
12 Finally, it is to be noted, that guardians or curators who are guilty
of fraud in their administration must be removed from their office even
though they offer to give security, for giving security does not change
the evil intent of the guardian, but only gives him a larger space of
time wherein he may injure the pupil's property: 13 for a man's mere
character or conduct may be such as to justify one's deeming him
'suspected.' No guardian or curator, however, may be removed on
suspicion merely because he is poor, provided he is also faithful and
diligent.