Corpus iurisprudentiae Romanae

1 Modestinus, On Excuses, Book I. Herennius Modestinus to Ignatius Dexter, Greeting. I have composed a book which I have entitled “The Excuses of Guardianship and Curatorship”, which seems to me to be very useful, and which I send to you. 1I shall do all that is possible to make the learning of these matters clear, while translating the legal terms into the language of the Greeks, although I am aware that they are not readily adapted to translation. 2I shall also add to the narration of the matters to be discussed the identical phraseology of the enactments, where it is necessary, in order that, by the possession at the same time of the legal doctrines and the commentaries of the same, those requiring them may have the laws in all their integrity and utility. 3Therefore, in the first place, it should be stated what persons should not be appointed. 4Guardians shall not appoint freeborn guardians or curators for minors who are freedmen, unless there is an entire lack of freedmen in the place where the appointment is to be made; for a Rescript of the Divine Marcus directs that freedmen should alone be appointed guardians for emancipated wards, who are residents of the same locality. Where, however, another is appointed, the Divine Severus, mindful of the interest of minors, stated in a Rescript that the party would be liable under the guardianship, unless he could give reasons for not accepting it in compliance with the law. 5A husband cannot act as a guardian of his wife (as the Senate has decreed), and if he should be appointed he shall be discharged.

2 The Same, Excuses, Book II. Persons who have attained the age of seventy years are excused from the duties of guardianship and curatorship. It is necessary, however, that they should have passed the age of seventy at the time of their appointment, either when the heir has entered upon the estate, or when a condition prescribed by law has been fulfilled, and not within the time established to render the excuse valid. 1Moreover, age is established either by the certificate of birth, or by other legal evidence. 2A large number of children is a good excuse for release from the duties of guardianship or curatorship. 3All the children, however, must be legitimate, although they may not be under paternal control. 4It is necessary that the children should be living at the time their fathers are appointed guardians, for any who have previously died shall not be included among those entitled to be excused; nor, on the other hand, do any who die subsequently prejudice the rights of their parent. This is also set forth in a Constitution of the Divine Severus. 5Although, indeed, this seems to have special reference to a testamentary guardian, it is, nevertheless, applicable to all others. 6While a child in the womb of its mother is by many provisions of the law considered as already born, still, neither in the present instance, nor with reference to other civil employments, can this operate to release the father. This rule was also set forth in a Constitution of the Divine Severus. 7Again, not only do sons and daughters effect the release of their father from guardianship, but also grandchildren, both male and female, who are the offspring of sons. Moreover, it is only when their father is dead, that they can supply his place with their grandfather. Then, no matter how many grandchildren are born to a single son, they are reckoned only as one child. This also can be ascertained from those constitutions which treat of children; for it is never easy to ascertain where a constitution refers to sons, but this can readily be done where the reference is to children, for this appellation includes grandchildren also. 8It is necessary that the party who is appointed should have, at the time, the number of children prescribed by the constitutions, for if they should be begotten after his appointment, this will be of no benefit to him by way of excuse, as the Constitution of Severus and Antoninus sets forth. 9Persons who are called to a guardianship or a curatorship may be excused where they already have charge of three guardianships or curatorships; or where three guardianships and three curatorships are united, and are still in existence; that is to say, where the minors have not yet attained their majority. Where, however, anyone is the curator, not of a minor, but of an insane person or a spendthrift, such a curatorship shall be included in the number of those permitting exemption, as is stated in the Constitution of Severus and Antoninus. The distinguished Ulpianus gives the same opinion in the case of persons having the administration of three guardianships.

3 Ulpianus, On the Duties of the Prætor Having Jurisdiction Over Guardianships. The administration of three guardianships offers a good excuse. Three guardianships are understood to mean, not that the number of wards give rise to distinct guardianships, but that the estates are separate and distinct. Hence, where a guardian is appointed for three brothers who are entitled to an undivided estate, or where a guardian is appointed for two of them, and a curator for the others, he is held to have undertaken but one guardianship.

4 Modestinus, Excuses, Book II. We have stated that parties charged with the administration of three guardianships are not required to accept a fourth. Hence the question arises, where anyone is administering two guardianships, and having been called upon to accept a third, appeals, and, while the appeal is pending, is appointed to a fourth guardianship, whether he can excuse himself from the fourth by mentioning the third, or whether he can renounce it altogether. I find that it has been determined by the Divine Severus and Antoninus that a party who has appealed from the appointment of a third guardianship cannot be charged with a fourth; but that, while his application to be excused from the third appointment is pending, he must await its determination to ascertain whether he shall be charged with a fourth appointment or not. There is a good reason for this, for if anyone should undertake the administration of the fourth guardianship, and it should happen that his appeal from his appointment to the third was improperly taken, and the appointment should stand, he would be charged with the administration of four guardianships, which is contrary to law. 1Where a father has the administration of three guardianships or curatorships, his son shall not be annoyed with the administration of another, as has been decided by the Divine Severus and Antoninus. This rule also applies to the case of a son, for the guardianship of a son will effect the release of his father, and this is the case where the guardianships are administered in common, by both; that is to say, where one is administered by the son, and two by the father, or vice versa. The same rule applies where the duties of administration are discharged by a single household, and not by separate ones. The distinguished Ulpianus also held this same opinion.

5 Ulpianus, On the Duties of the Prætor Having Jurisdiction Over Guardianships. It is sufficient that the parties charged with three guardianships should belong to the same family. Hence, if the father, the son, or the brother of anyone who is under the same control, is charged with the administration of three guardianships, the father will be responsible for the reason that they are administered with his consent. This will be a good excuse for all of them to be released from any other guardianship. Where, however, they do not administer the trusts with the consent of the father, it has been frequently stated in rescripts that this will not be available as an excuse.

6 Modestinus, Excuses, Book II. If anyone already charged with the administration of two guardianships should have two others simultaneously imposed upon him, the one which is third in order will be available to him to obtain a release from the fourth; even though the Emperor himself may have made the appointment of the fourth, or the third, if, before he was aware of the order of the Emperor, he had been appointed to the administration of the other guardianship. Where, however, no order was observed, but the two appointments were made by different letters upon the same day, he who made the appointment, and not the appointee, shall select which charge he must administer. 1Grammarians, sophists, rhetoricians, and physicians in active practice, are entitled to exemption from guardianship and curatorship, just as they are from other public employments. 2Again, in every city there are a number of rhetoricians, as well as certain philosophers mentioned in the laws, who are excused from the exercise of public duties, which is stated in a Rescript of Antoninus Pius written for the province of Asia, but which is also applicable to the entire world, and whose contents are as follows: “Small towns are entitled to five physicians, three sophists, and the same number of grammarians, who shall be exempt from the duties of guardianship; larger ones shall be entitled to seven who practice the healing art, and four of each of those who give instruction in both the above-mentioned branches of learning. The largest cities shall be entitled to ten physicians, five rhetoricians, and the same number of grammarians. The largest city, cannot, however, grant exemption to a greater number. It is proper that the capitals of countries should be included in the number of the largest cities; that those which have either a tribunal or a place where causes are heard and determined should be embraced in the second class; and all others in the third.” 3It is not lawful for this number of exceptions to be exceeded either by a Decree of the Senate, or for any other reason; the number can, however, be diminished, since it is apparent that this measure has been taken for the benefit of the civil service. 4These persons, moreover, do not enjoy this exemption, unless they have been regularly registered by a Decree of the Senate, and are not negligent in their practice. 5Paulus states that philosophers are also exempted from guardianship; for he says philosophers, orators, grammarians, and those who publicly instruct youths, are excused from the exercise of its duties. Ulpianus also makes a similar statement in the Fourth Book on the Office of Proconsul. 6Our Emperor and his father stated in a Rescript addressed to Lælius Bassus that a physician could be rejected by a municipality even though he had already been licensed. 7The same Constitution of the Divine Pius states with reference to philosophers that their number has not been officially determined, because very few really belong to this profession. I think, however, that those who are endowed with great wealth will voluntarily contribute their property for the benefit of their country. But where they speak principally of their worldly possessions, it is evident from this fact that they are not true philosophers. 8There is a Section of a Constitution of the Emperor Commodus mentioned in a Rescript of Antoninus Pius, in which it is apparent that philosophers enjoy exemption from the duties of guardianship. It is expressed in the following terms: “Moreover, in conformity with all these things, as soon as my Divine Father ascended the throne, he confirmed by a Constitution all existing honors and immunities, stating that philosophers, rhetoricians, grammarians, and physicians were exempt, while conducting the schools of the priesthood, and that they cannot be forced to furnish supplies of corn, wine, or oil, or purchase the same; that they cannot be compelled to preside in court, or act as deputies, or be enrolled in armies, or, against their consent, be subjected to any other public service.” 9It must also be remembered that anyone who gives instruction in his own country, or practices medicine, is entitled to this exemption, for if a man from Comana teaches or practices medicine in Cæsarea, he will not be exempt at Comana. This rule has also been promulgated by the Divine Severus and Antoninus. 10Indeed, Paulus writes that the Divine Pius and Antoninus ordered that persons distinguished for learning should be exempt, even if they exceeded the number of those already registered; where they established their residence in a different district. 11It was promulgated by the Divine Severus and Antoninus that anyone who taught philosophy at Rome either with or without a salary should enjoy the same exemption as if he taught in his own country. It can be adduced as a reason for such a decree that, as the Imperial City is considered to be the common country of all the people, he who honorably makes himself useful should enjoy exemption there, not less than in the place of his birth or residence. 12In fact, teachers giving instruction in any district are not entitled to exemption, but those who teach at Rome are released from guardianship and curatorship. 13Ulpianus, in his Book on the Duties of the Prætor having Jurisdiction of Guardianship, writes as follows: “Athletes are entitled to exemption from guardianship, but only such as have been crowned in the Sacred Games.” 14The governorship of provinces, as, for instance, of Asia, Bithynia, Cappadocia, confers exemption from guardianship; that is, so long as the parties hold the office. 15Guardianship is not a public employment, nor one to which a salary is attached, but a civil office; and it is held that the administration of a guardianship cannot be carried on outside of the province. 16The magistrates of cities are released from guardianship and curatorship. 17Enmity resulting from the accusation of a capital crime, manifested by the appointee against the father of the ward, also affords a release from guardianship, unless it appears that the guardian was appointed subsequently by will, or after the will was drawn up, the strife due to the capital accusation no longer existed; or the enmity preceded the execution of the will; and it is clear that the guardian was appointed for the purpose of being subjected to responsibility and annoyance growing out of the transaction of business. This also is made manifest by a Rescript of the Emperor Severus. 18Moreover, anyone can be released from the duties of guardianship when a question is raised with reference to the condition of the ward, and it appears that this was not done through malice, but from motives of good faith. This rule was promulgated by the Divine Marcus and Severus. 19Paulus writes as follows with reference to persons residing in the country, who are of humble rank and illiterate: “Inferior rank and rusticity sometimes can be alleged as an excuse, according to Rescripts of the Divine Hadrian and Antoninus.” The excuse of a party who states that he has no knowledge of letters should not be accepted unless he is inexperienced in business.

7 Ulpianus, On Excuses. Poverty, indeed, affords a good excuse, where anyone can prove that he is unequal to the burden imposed upon him; and this is contained in a Rescript of the Divine Brothers.

8 Modestinus, Excuses, Book III. Soldiers, however, who have honorably served their time of enlistment are at present entitled to exemption from the guardianship of any other persons whomsoever. But with reference to the guardianship of the children of those who have served in the same rank, or of such as were formerly soldiers, the comrades of the latter shall be excused during the first year following their discharge. But, after that time, they shall not be entitled to exemption; for the equality of military distinction always appears to be stronger than the privilege attaching to the service, unless perhaps they should have other good reasons for release from guardianship; as, for instance, the number of their years, or anything else of this kind for which it is customary for private individuals to be exempt from all similar obligations. This rule, however, applies to the sons but not to the grandsons of those who were formerly soldiers, for the grandsons of veterans are held to occupy the same position as other private individuals. 1Those, indeed, who have been ignominiously discharged, are considered to be like persons who have never been in the army, and for this reason they themselves are not entitled to the privilege of a soldier; and if others who were formerly in the service should be appointed guardians of their children, they will not be required to serve. 2Sometimes, however, soldiers do not complete their terms of service and still are entitled to exemption from guardianship; but this is not the same exemption as those are entitled to who have served their full time. He who has been more than twenty years in military service is held to be in the same position as he who has served as a soldier for the full time. 3Anyone who has been discharged within this time is not entitled to perpetual exemption from guardianship, but only to exemption for a certain period; just as is the case with other civil employments. Where anyone is released from military duty within five years, he shall not claim any exemption for himself; and he who has served five years shall be entitled to exemption for one year; he who has served eight, shall be exempt for two years; he who has served twelve, for three years; he who has served sixteen for four years; and he who has served twenty years shall, as we stated above, always be exempt. 4Anyone who has served in the Night Watch of Rome shall be entitled to exemption for only one year. 5What has been stated also applies to persons who have been honorably discharged, or have received a discharge on account of illness, for this is also an honorable excuse; but he who has been ignominiously discharged is not entitled to exemption. 6A veteran is considered to be one who has not only served in a legion but has served in any military capacity whatsoever, provided he has been honorably discharged. He can, however, be appointed guardian of the children of another soldier; for one who has served in a legion can be appointed guardian of the children of another who has served in the Night Watch. 7A former soldier can also be appointed curator for a minor in the service, where the father of the latter is dead, or even if he has been emancipated. 8Constitutions exist which establish all these rules. 9Ulpianus also states the same things. Those who have been dishonorably discharged are evidently excluded from guardianship in the City, for the reason that it is unlawful for them to enter therein. Anyone who has served in the urban cohorts, even though he has been discharged before twenty years have elapsed, is still entitled to perpetual exemption from guardianship. 10The question, however, arose whether former soldiers should accept a guardianship at once, or whether during the same time, they could not discharge the duties of the office more than once, so that the first guardianship having been terminated, they could again claim their privilege in a different manner from private persons, who have executed their trust. This will not benefit those who are not entitled to the privilege, nor can it be reckoned among the three which afford exemption; just as in the case of those who were formerly in military service it is no advantage to have been appointed guardians. This was promulgated in the Curiæ, as is shown by a Constitution of the Divine Severus and Antoninus. 11It makes no difference for what reason the children of a fellow-soldier require a guardian or a curator; whether because they are emancipated, or because their father is dead. 12Centurions of the first company of the triarii, are, under the Imperial Constitutions entitled to exemption from all other guardianships, for such captains shall serve as the guardians of the children of others. Those, however, shall be considered centurions of the first company of the triarii who perform the functions of this office. Where, however, one of them dies without discharging his military duties, another officer of this kind shall not be appointed guardian of his children.

9 Ulpianus, On the Duties of the Prætor Having Jurisdiction of Guardianship. After a tribune has served in the prætorian cohorts he shall be exempt from the guardianship of the children of his colleagues, on account of a privilege granted by the Divine Severus and our Emperor.

10 Modestinus, Excuses, Book III. However, not only those who have served in the ranks, as well as in the other divisions of the triarii, but also those who, on account of some necessity, have been absent on public business for the benefit of the Roman people, shall be entitled to exemption for the term of one year after their return. 1This term of a year is not only granted to those who have completed their ordinary time of military service while engaged in the business for the State, but also to such as have discharged duties of any kind required by the public service, and have returned, even if in so doing they have consumed less time than had been allotted. 2Where, however, such persons, were administering guardianships before their departure, and, on this account, relinquished them, because they were absent on public business; after they have returned they must immediately take up their duties again without the benefit of the year of exemption, for this year applies to future and new guardianships, and not to those which should be resumed. 3The year of completed days shall be reckoned from the time when the party who is returning takes, or should select, the most direct route, and not one which is circuitous. 4Moreover, guardians who are appointed by will can legally refuse to assume the administration of property situated in another province; as is shown by the following Constitution of the Divine Severus: “The Divine Severus and Antoninus, Emperors, to Valerius. If you have been appointed a testamentary guardian, you must appear within the prescribed time and ask to be released from the administration of property situated in another province.” 5Where one who has completed his service as first centurion of the triarii, has undertaken the guardianship of the son of one of his fellow-soldiers, and has been restored to his position through military necessity, he must relinquish the cares of the guardianship. 6In like manner, a curator shall be appointed for minors in the place of the guardian where the latter has become the colleague of the father of said minors; as is set forth in a Constitution of the Divine Severus; and this is applicable to all similar instances, so that a curator can be appointed in the place of such a guardian when he is temporarily released. 7Where a freedman, who has not arrived at puberty, is appointed by his patron guardian of his children, or where any minor under twenty-five years of age is appointed, so long as he is under the age of puberty, he shall not be required to discharge his duties, but in the meantime a curator shall be appointed in his place. The rule is the same where the legal guardian happens to be a minor, for a curator shall meanwhile be appointed in his stead. 8Where a guardian is ill, but it is not necessary for him to be permanently discharged from the guardianship, a curator shall, for the time, be appointed in his stead, and when he recovers, he shall again resume the performance of his duties. A similar rule applies where a guardian becomes insane. With reference to this, Ulpianus writes as follows: “Illness is a valid excuse, but it must be such an impediment as to prevent anyone from attending to his own affairs”; which our Emperor, together with his father, also stated in a Rescript.

11 Paulus, On the Excuses of Guardians. This rule not only prevents them from undertaking the duties of a guardianship, but also should cause their discharge where those duties have already been assumed.

12 Modestinus, Excuses, Book III. Ulpianus said the same thing. But it is added in this Rescript that it is customary for guardians to be released either temporarily or permanently according to the character of the disease with which they are afflicted. Moreover, insanity does not bring about an absolute discharge, but causes the temporary appointment of a curator. 1There are also others who, although they are already acting as guardians or curators, can still be instantly released from any remaining responsibility; as, for instance, those who, in obedience to a rescript of the Emperor, have changed their residence, he being aware that they were guardians, and having given his express permission for the change to be made, this fact having been stated in the Imperial Letters.

13 The Same, Excuses, Book IV. It must be noted that neither guardians appointed by proper authority nor testamentary guardians are required to appeal, as is stated by the Constitution of the Divine Severus and Antoninus. This rule should also be observed with reference to the appointment of a curator, for curators in very few respects differ from guardians. They, however, have permission to appeal from decisions brought against them when they offer excuses. 1It is necessary, however, for many formalities to be observed in order that guardians and curators may show good cause for their discharge. They are required, in the first place, to make application to the court within the time prescribed by law, which is as follows. He who is in the same town where he has been appointed, or within the hundredth milestone from said town, shall file his excuse within fifty days, for after this he shall not be permitted to do so, but will be obliged to discharge his duties; and if he does not observe any of these requirements, he will be in the same position as if he had been guilty of negligence, and there will be no way left for him to offer his excuse. Where, however, he is distant more than a hundred miles from the town, he will be entitled to twenty miles for every day from the one on which he received notice of his appointment (and this notice must be served upon him by the Governor either personally, or at his residence) and, in addition to the above twenty days, he shall be entitled to thirty more for the purpose of offering his excuse. This rule likewise applies to all designated by will, whether they are guardians or curators, whose appointments it is customary to have confirmed by a magistrate. 2We also find another provision in the Decree of the Divine Marcus, which is worthy of examination. For, indeed, the legislator grants to the guardian who is in the town in which he was appointed, or who is within the distance of a hundred miles from the same, the term of fifty days, but to him who resides beyond the distance of a hundred miles, he grants one day for every twenty miles, and, in addition to these, he allows thirty days for the presentation of his excuses. It results from this that, if the residence of the person is distant one hundred and sixty miles, he would be entitled to a term of thirty-eight days, that is to say, eight days for the hundred and sixty miles, or one day for every twenty miles, and thirty days in addition, in which to make application to be excused. Therefore, he whose residence is farther away is in a worse condition that he who resides within a hundred miles, or in the town itself; for, indeed, the term of fifty days is always granted to the latter, but a shorter time is allowed the former. But although the terms of the law, if strictly interpreted, should be understood in this way, still, the intention of the legislator was entirely different; for Cerbidius Scævola, Julius Paulus, and Domitius Ulpianus, authorities most eminent and learned in the law, held that this is the case, stating that the rule must be observed that no one shall be entitled to a term of less than fifty days, when the time computed for the journey added to the thirty days which the law allows for the offering of excuses, exceeds fifty days; for instance, if we should say than anyone resides four hundred and forty miles from the town, he will be entitled to twenty-two days to make the journey, and thirty more to present his application to be excused. 3All must observe this rule with reference to time who, for any reason whatsoever, desire, either wholly or in part, to be released from the duties of guardianship or curatorship. 4It has been decided as the result of this that, where anyone desires to avail himself of any kind of an excuse, he shall not be heard, if he does not make his application within the prescribed time; unless, indeed, he should be a citizen of some other state. 5It is so necessary for the prescribed time to be observed, that if this is not done, and the party having presented his excuse should be discharged, he will not be released; as the Divine Severus and Antoninus state in one of their Constitutions which directs that he who has been appointed in the place of a guardian shall not be retained in office, on the ground that it is not lawful for a second guardian to be appointed where there already is one. 6It will be sufficient for the guardian to apply to be excused within the prescribed time; for if afterwards, he, having changed his mind, should desist, it will not prejudice him. Therefore, if anyone merely presents himself, and does not afterwards remain for the purpose of offering his excuses, after the prescribed time has elapsed he will be barred by an exception. This is stated in a Constitution of the Emperors Severus and Antoninus. 7Where anyone, by reason of illness or any other necessity (for instance, on account of the dangers of the sea, or the severity of the winter, or the attacks of robbers, or any other similar impediment), is not able to appear within the prescribed time, indulgence should be granted him, since his good faith is sufficiently established by natural justice; as the Constitution of the Emperors Severus and Antoninus sets forth. 8Again, it should be remembered that it is not sufficient for the guardian to merely appear in court, but he is required to give evidence with reference to the reason for which he asks his discharge, and if he has several reasons to advance which may facilitate it, he must enumerate them all; and if he does not do so, he will resemble a party who has never appeared, or if he did appear, did not show good cause for his discharge. 9The fifty days aforesaid are reckoned continuously, beginning from the time of notice served upon the party who was appointed. 10It is necessary for the reasons for discharge to be presented orally in court, or by a petition. The party can also reduce his reasons to writing, as the same Emperors declare. 11These are the rules having reference to the time prescribed by law which must be obeyed. Now let us consider those who are not required to comply with these rules. 12Guardians who have not been legally appointed (that is to say, who have been appointed by parties who have no right to do so; or where they were not eligible; or where the wards were responsible for the illegality; or in case the proper legal formalities were not observed), and were not confirmed, and did not administer the trust, will be discharged, and no one can raise the objection that they did not, in their application to be excused, observe the time prescribed by law; for they are not required to make such application, as is proved by the constitutions hereinafter mentioned, which I have submitted by way of example, and which, indeed, are applicable to all cases. “The Divine Severus and Antoninus, Emperors, to Narcissus: Having been appointed guardian by the maternal grandfather of the ward, you are not required to make application to be excused, for you are not legally liable, and therefore if you do not interfere in the administration of the estate you will be secure.” Again, in like manner, where magistrates appoint a guardian or a curator who is not subject to their jurisdiction, he will not be required to observe the time prescribed by law, inasmuch as he is neither a citizen, nor a resident of the town.

14 The Same, Excuses, Book V. Where, in matters relating to the excuses of guardians and curators, reference is had to a freedman, it must be noted that not only the freedman of the father of the ward, but also the freedman of his mother, is understood. 1And since we are discussing the children of a patron, it must be noted that this term is not only applicable to descendants in the first degree; that is to say, to sons and daughters, but also to grandchildren on both sides, as well as to those who succeed to them. 2And even though a freedman may obtain the right to wear a gold ring, he still retains the rank of freedman, in accordance with what was decreed by Marcus Antoninus. 3Where a slave purchases himself with his own money, and is manumitted, he shall never be included among other freedmen. 4Where there are several freedmen, one shall be appointed guardian for all the children of his patron, and he shall not be discharged even if he is already administering three guardianships.

15 The Same, Excuses, Book VI. An eunuch can also be appointed a guardian, and he cannot allege his infirmity as an excuse, as is set forth in a Constitution of the Emperors Severus and Antoninus. 1He who has promised to act as guardian of the children of anyone cannot be excused from guardianship, even though he would otherwise have a lawful reason for his discharge. 2It must be remembered that occupancy of an office is not a reasonable excuse for anyone. Wherefore, if a party is a Senator, he can be a guardian of persons of inferior rank, as well as of the children of a Senator, as the Divine Marcus and Commodus stated in a Rescript. 3Where, however, anyone is the guardian or curator of a ward who is not of Senatorial or other distinguished rank, and he afterwards becomes a Senator, he shall be instantly discharged. His discharge, however, will not take place where the children whose guardianship or curatorship he is administering are of Senatorial rank. 4In like manner, anyone who is of inferior rank shall not be excused from the guardianship or curatorship of wards occupying a higher position than himself. 5The Constitutions of the Emperors state that neither weighers nor accountants (whom we usually designate as arithmeticians), are entitled to exemption. 6Moreover, Jews can be guardians of wards who are not Hebrews, just as they can administer property belonging to other trusts; for the constitutions prescribe that they shall remain unmolested, except under circumstances where the public worship may be contaminated. 7An account due to a municipality is not classed as a single guardianship in an application for exemption. 8The freedmen of the wives of Senators are not released from the duties of guardianship, even though they may transact the business of their patronesses; for this privilege is only conceded to the freedmen of males of Senatorial rank. 9If the Governor of a city, that is a magistrate, incurs the responsibility of guardianship through an appointment, he cannot include this with other guardianships for the purpose of being released; just as the sureties of a guardian, or those who are appointed honorary guardians by will, are not allowed to do so. 10He who collects taxes for the State shall not be excused from curatorship. 11It has been asked if a person who is able to advance several reasons why he should be discharged, any one of which is not sufficient of itself, can be excused. For instance, where a man has not reached the age of seventy years, and is not administering three guardianships, and has not five children, or cannot allege any other lawful reason to be discharged, but is administering two guardianships, has two children, and is sixty years old; or where he gives several other reasons which, of themselves, do not afford absolute cause for relief, but which altogether would appear to be sufficient to enable him to be excused, it has been held that he cannot be discharged. 12Where a person receives, or is entitled to exemption from civil or public employment, he will not, for this reason, be excused from guardianship or curatorship. 13Where anyone has been discharged from guardianship or curatorship, he can, under no circumstances, make use of the causes set forth in the documents to obtain a discharge from another guardianship or curatorship, if he does not advance other reasons for said discharge. 14Anyone who states that he was not known to the father or mother of the ward shall not be excused on that account. 15Moreover, where anyone has the administration of three guardianships or curatorships, he has no right to be excused from the administration of a fourth; for instance, if he has manifested a desire to accept it. A guardian, however, is only held to have manifested such a desire, who manages a moderate estate. 16Ulpianus states in his work on Exceptions, that where a party is administering as one of three guardianships, that of his emancipated son: “I know that a doubt has arisen as to whether this can be asserted in his favor where he applies to be excused from a fourth.” I find, however, that a Rescript exists where the guardianship of an emancipated daughter is allowed to be included among other guardianships for this purpose. 17Where anyone under paternal control is appointed a guardian, and his father refuses to become his surety, the laws direct that the father himself shall be made guardian, and that the security of the guardianship shall in no way be interfered with, as is stated in a Constitution of the Divine Hadrian, which is as follows: “The Emperor Hadrian to Bitrasius Pollio, Deputy at Lyons. If Claudius Macer, although he is a son under paternal control, appears to be a suitable person to be a guardian, and his father is unwilling to provide security for him, in order that he may deprive his son of the guardianship, and he continues to display this perfidious spirit, I think that you can properly counteract this fraud by compelling both his son and himself to administer the guardianship of the children of Clement.”

16 The Same, Opinions, Book II. Gaius, by his will, appointed Nigidius guardian of his son, and also appointed him curator until his son had reached his twenty-fifth year. I ask, since it is lawful for Nigidius to be excused from the curatorship without an appeal, from what day the time fixed by the Divine Marcus to be observed in the application for discharge shall be reckoned; whether this shall be done from the day when the will is opened, or from that when the guardian is called upon to transact business; that is to say, after the ward has completed his fourteenth year? Modestinus answered that the application to be excused from the curatorship must be made at the time when the curator was confirmed by the decree of the Prætor or Governor.

17 Callistratus, On Judicial Inquiries, Book IV. Not only the value of the estate to be entered upon, the administration of which is to be undertaken in the case of three already existing guardianships, but also the ages of the wards, must be considered. For if the ages of the first wards are approaching puberty, so that only a term of six months remains, or if the age of those, the assumption of whose guardianship is involved, is not far from puberty, an excuse will not be allowed. This matter is provided for by the Imperial Constitutions. 1Complete exemption was long since granted to the Trojans, both by Decrees of the Senate and Constitutions of the Emperors, on account of the renowned nobility of their city and their connection with the origin of Rome, where wards are concerned who are not Trojans. This the Divine Pius stated in a Rescript. 2Those who belong to certain associations, as, for example, to that of artisans, We declare to be entitled to exemption, for they can be excused from the administration of the guardianship of persons who are not members of their organization, in order to compel them to undertake other public employments, even if their property has been subsequently increased. This is also provided for in the Imperial Constitutions. 3All bodies or associations, however, are not entitled to be released from the duties of guardianship, although they may not be obliged to assume municipal offices, unless this privilege has been expressly granted them. 4He who is performing the duties of ædile may be appointed a guardian; for the office of ædile is included among those magistracies whose incumbents are exempt from private employments, according to a Rescript of the Divine Marcus. 5It must, indeed, be noted that it has been settled that those invested with public office are released from the duties of guardianship. Those are exempt who, being already in office, are called upon to undertake the duties of guardianship; but it should also be noted that those who have already been concerned in the administration of its duties are not excused, even during the time of their magistracy. 6The masters of ships, among their other privileges, do not seem to enjoy that of being exempt from guardianship. This the Divine Trajan stated in a rescript. 7Those who dwell in camps are usually exempt from guardianship, except with reference to that of parties who themselves reside in the same camp, and are of the same condition.

18 Ulpianus, On the Lex Julia et Papia, Book XX. Where children are lost in war, this fact affords a valid excuse for release from guardianship. A question arose, however, as to who these children are, whether they are such as are killed in battle, or whether they include all those who are taken from their parents on account of war; as, for instance, those lost in a siege. The preferable opinion is that only those who are killed in battle, without reference to their sex or age, should afford a valid cause for release, for they have lost their lives for their country.

19 The Same, On the Edict, Book XXXV. It is customary for those guardians who have their residence in Italy to be excused from the administration of provincial matters.

20 Julianus, Digest, Book XX. When the uncle of a ward alleges that the latter has been disinherited, and that he himself was appointed heir, it is but just for the excuse of the uncle to be accepted, and for a guardian to be appointed for the ward; or, if he is unwilling to petition to be released, he shall be removed from the guardianship, in order that the contest with reference to the estate may be expedited.

21 Marcianus, Institutes, Book II. No one can be excused from guardianship on account of a lawsuit which he has with his ward, unless all the property of the latter, or the greater portion of it, is involved in the controversy. 1Where a party wishes to be excused, and has several reasons to advance for that purpose, and is unable to prove some of them; he is not prohibited from making use of the others within the time prescribed by law. 2Even though a guardian has been appointed for the administration of the entire estate of the ward, he can, nevertheless, make application to be excused from administering the guardianship of property situated beyond the hundredth milestone; unless the estate of the ward is all in said province. For this reason the Governor of the province shall appoint a guardian for said property. 3Nor can Senators be compelled to administer a guardianship beyond the hundredth milestone. 4A guardian can be appointed for a ward who already has one, but this must be for the management of other property.

22 Scævola, Rules, Book I. Surveyors are not exempt from the duties of guardianship. 1Those to whom the Emperor has committed the transaction of any business can be excused from guardianship so long as they are transacting it.

23 Ulpianus, Opinions, Book II. I have already stated that a person has not a valid excuse for release from guardianship on account of some magisterial office, the duties of which he should discharge in a municipality. 1I have given it as my opinion that where a soldier is serving in camp, he has a right to be excused if he is appointed guardian for someone who is not serving in the same camp.

24 Papinianus, Questions, Book XI. It must by no means be believed that he is deprived of the privilege of being excused who has obtained his freedom by means of a trust; for in almost every instance of this kind, the party who manumits a slave obtains no right as patron against the person of the freedman, except that the latter cannot summon him into court without the order of the Prætor.

25 Ulpianus, On the Office of the Proconsul, Book II. A guardian cannot state his reasons to be excused in a petition.

26 Paulus, On Excuses. It is apparent from a Rescript of the Divine Marcus and Antoninus, addressed to the Prefect of Subsistence, that the measurers of grain have a right to be excused from guardianship.

27 Marcianus, Rules, Book V. Where a legatee is charged to surrender his entire legacy to another, and desires to be released from the responsibility of guardianship, he will obtain his legacy for the purpose of delivering it to the beneficiary; this case being similar to that of an heir who brings an action claiming that the will is void, and loses his case.

28 Papinianus, Opinions, Book V. Where a guardian applies for confirmation, and before the day of the decree obtains some privilege granting exemption, he cannot legally withdraw the petition which he has already filed. 1Where property is left by a parent to guardians by way of remuneration for their good faith, it has been held that it can be retained by the heirs, even though they are strangers, after the said guardians have been excused. This, however, will not apply to a son whom Ms father has appointed co-heir with, and guardian to his minor brother; since the son is entitled to the bequest of the father on account of his relationship, and not as guardian. 2Where a guardian has been exiled for a certain time, he cannot allege this as an excuse, but a curator should be appointed in his stead during the time of his exile.

29 Marcianus, Institutes, Book II. It is evident that if the guardian is sentenced to perpetual exile, he can be released. 1Moreover, the ignorance of an exile will be the more readily pardoned, since he could not have established the suspicious character of his fellow-guardian.

30 Papinianus, Opinions, Book V. Our Noble and Illustrious Emperors decided that persons learned in the law, who had undertaken the administration of guardianship, should be excused where they have become members of the Imperial Council, since they must always be in their presence, and the honor paid to them will not be limited either by time or place. 1Where the native of a province fixes his residence at Rome, his curator, appointed by a decree of the Governor and the Prætor, shall undertake the administration of his property in both places. It has been held that he shall not be considered as administering two curatorships, because it is evident that two estates should not be held to be vested in the same person. 2He who enjoys the benefit of exemption cannot be compelled to undertake the curatorship of his brother. 3A patron appointed by his will certain of his freedmen as guardians of another freedman, who had not yet arrived at puberty. Although it may be established that these parties are solvent, they can, nevertheless, in accordance with public law, be excused from being confirmed by a decree.

31 Paulus, Questions, Book VI. If a man, while administering three guardianships, should be appointed by different decrees guardian of two other wards, he can be excused; and if, before he states the reasons why he should be excused, one of the wards whose guardianship he was administering should die, from this time his excuse will not be available, and he will, at once, be bound by the first decree; which is just as if the fourth guardianship was substituted for the third, since he was guardian in accordance with law before he was excused. Therefore he can be excused from the guardianship of him who now occupies the fourth place, and as he was not excused, he must necessarily also undertake the responsibilities of the other, that is, the third guardianship. It raises no difficulty in my mind, if anyone should say that the guardian is not required to administer this guardianship, for the matter to be considered is whether its administration is terminated by the death of the ward. Moreover, I think that he will also be liable for the guardianship, if he assumes the responsibility of failing to administer it. 1This can also occur where a guardian is appointed by two different wills, at the time when he is already administering three other guardianships; and, in this instance, it is not the time when the wills were opened which should be considered, where the question arises which guardianship was first conferred, but the time when the estate was entered upon, or when the condition upon which the appointment depended was carried out. 2This difference also exists between the guardianships of which we have treated, where the third and fourth appointments are made, although the guardian is first held liable for the administration of the fourth, because it is this one, that is to say, the fourth, which he is ordered to administer, and he must bear the responsibility of the other from the day upon which he was appointed. 3I think that a guardian who has caused his ward to reject the estate of his father should be retained in the fourth guardianship, the former one being, as it were, rejected. 4Moreover, I think that the Prætor will act in accordance with law, where he holds that only one guardianship will be sufficient; if it is so extensive and involves so many business requirements that it is equal to several. Hence, brothers who are entitled to equal shares of an estate should not be considered as being subject to several guardianships; or even if the wards are not brothers, where they have the same patrimony, and a single account of the administration must be rendered by the guardian, the same rule will apply. On the other hand, where there are two distinct estates belonging to brothers, two guardianships must be established; for, as I have already stated, it is not the number of wards, but the difficulty of drawing up and rendering the accounts that must be taken into consideration.

32 The Same, Questions, Book VII. Nesennius Apollinaris to Julius Paulus. A mother appointed her minor son her heir, or some stranger appointed a minor who was also a stranger, his heir, by will, and left a legacy to Titius, appointing him a guardian of the said ward. Titius, after having been confirmed, was excused from the guardianship. I ask whether he will lose his legacy. And what would be the case where a guardian was not appointed by will, but accepted a legacy, and having been appointed guardian by the Prætor, is excused; can he justly be deprived of the legacy; or does it make any difference where a guardian is appointed for a minor who has been emancipated, or a curator for a child arrived at puberty, by his father? I answered that where a guardian or a curator was illegally appointed by the father, and has been confirmed by the Prætor, he shall be deprived of the legacy, if he prefers to avail himself of the privilege of being excused, and this was also held by Scævola; for, in fact, the Prætor who confirmed the guardian only carried out the wishes of the deceased. The same rule must be held to apply to the will of the mother. The following instance is similar to that of the mother, namely, where a stranger appoints a minor his heir, and wishes to provide for the appointment of a guardian for him, as is the case with children whom we have brought up. Therefore, it was very properly held that he who refuses to do what the testator required should be deprived of what the latter gave him. I do not think, however, that one who has renounced the responsibilities of guardianship can always be deprived of his legacy, but only where it is apparent that the legacy was bequeathed to him because the party charged him with the guardianship of his children, and not where he would have given it to him in any event, even without the guardianship. This can be established if you insert the legacy in the will, and afterwards appoint a guardian by a codicil; for, in this instance, it cannot be said that the legacy was bequeathed to him because the testator desired him to act as guardian.

33 The Same, Questions, Book XXIII. This distinction, however, seems to be too finely drawn, and should not be admitted, unless the father plainly stated that he wished to bequeath the legacy, even if the legatee should not administer the guardianship; for a legacy is always presumed to have been given for this purpose, whether it precedes or follows the appointment of a guardian.

34 The Same, Questions, Book VII. From this it is apparent that he whom the Prætor appoints as guardian should not be included in the same class with such legatees; since he can make use of his right to be excused, as he does nothing in contravention of the will of the testator, for, since the latter did not appoint him guardian, we cannot say that he wished him to administer the guardianship of his son.

35 The Same, Questions, Book XXIII. But what if the guardian was not excused, but declined to administer the property, contending that the other guardians were solvent? Suit can be brought against him if the ward cannot recover from the others. He ought not, however, to obtain the bequest, and his obstinacy should be punished, because to a certain extent he attempted to excuse himself. Much more should anyone be declared to be unworthy of the bounty of the father, who has been removed from the guardianship because of being suspected.

36 The Same, Opinions, Book IX. Parents are accustomed to select their dearest and truest friends as guardians for their children, and for this reason they bestow legacies upon them, in order to induce them to assume the burden of guardianship. But where such a person has obtained a legacy by will, and has also been substituted for the ward, it is not probable that the testator intended him to be substituted, if he should undertake the guardianship, and therefore the party in question should be deprived of the legacy if the ward is living; but he cannot be excluded from the substitution, as, in this instance, even if the guardianship is undertaken it would be terminated. 1Lucius Titius, out of three sons, had one who was emancipated and of an age to entitle him to have a curator. I ask whether the said Titius, when the said emancipated son petitioned for his father to be appointed his curator by the Prætor, can have recourse to the public law, and demand exemption on account of his three sons. I answered that this privilege cannot be denied the father, for the reason that he is entitled to it on account of the number of his children; but that when he is asked to be the curator of his son, he will act contrary to the instincts of nature, if he should attempt to make use of an excuse of this description.

37 Scævola, Opinions, Book II. A testamentary guardian stated in the presence of the Prætor that he had three children; and added that the minor had an uncle who was his legal guardian, and that he himself had been improperly appointed. The decree of the Prætor was as follows: “If you have been appointed guardian for a minor who has a legal guardian, it is not necessary for you to apply to be excused.” I ask, when there is really no such uncle who can be the guardian of the minor, whether the appointment of the testamentary guardian will nevertheless stand. I answered that, according to the case stated, although the party may have good reasons to be excused, still, he cannot be released on account of the irregularity of his appointment. 1I also ask, if the guardian acquiesces in the decree, whether an equitable action can be granted against him, for the reason that he did not transact the business of the guardianship. I answered that if he failed to administer the guardianship, rather through mistake, because he alleged that he was legally exempt on account of his three children and thought that he ought to be excused, rather than from malice, an equitable action should not be granted.

38 Paulus, Opinions, Book II. The term of fifty days previously mentioned has reference only to contesting the reasons alleged for exemption, as four continuous months are allowed for the settlement of the case.

39 Tryphoninus, Disputes, Book XIII. Where the guardian himself frames and brings forward excuses, and his discharge by the Prætor is prevented by delay caused by contradiction, his grounds for excuse can be legally established.

40 Paulus, Opinions, Book II. If, after the trust has been undertaken, the guardian becomes blind, deaf, dumb, insane, or a chronic invalid, he can lay aside the guardianship. 1Poverty, which renders the guardian unequal to the labor and burden of guardianship, usually affords exemption.

41 Hermogenianus, Epitomes of Law, Book II. Persons who are transacting public business through favor of the Emperor are excused from guardianship, as well as curatorship, during the time of their administration, even though no special letters have been issued for this purpose. 1The same rule applies to those who have charge of the Prefecture of Subsistence, or command the Night Watch. 2The attendance of persons absent on public business, who are of the prescribed number, are excused from guardianships to which they may have been appointed, either while absent, or before their departure; but they cannot resign a guardianship where it has already been undertaken. 3Persons who are entitled to exemption on account of their connection with some corporate body or association to which they belong are not excused from the guardianship of their colleagues, or of their children, with the exception of those to whom this privilege is expressly granted.

42 Paulus, Concerning Judicial Inquiries. It is clear that they are not compelled to accept the guardianship of the children of their colleagues, if they reside more than a hundred miles from the City.

43 Hermogenianus, Epitomes of Law, Book II. The freedman of a Senator who is administering the guardianship of the children of the latter will not be excused from other guardianships.

44 Tryphoninus, Disputations, Book II. In compliance with a Decree of the Divine Marcus, where a freeborn man was appointed guardian of one who is emancipated had a right to be excused, our Emperor, along with his father, the Divine Severus, stated in a Rescript that the same cause for release could also be advanced by anyone who had obtained the right to wear a gold ring. 1Therefore, if a freeborn guardian or curator is appointed for an emancipated ward, entitled to wear a gold ring, the result is that an application to be excused offered by him on account of a difference of condition should not be accepted. 2If, however, before the ward or minor under twenty-five years of age has acquired the right to wear a gold ring, Lucius Titius, having been appointed his guardian, should be excused on account of his being freeborn, he can be appointed a second time the guardian or curator of said minor, after he has obtained this privilege; for the same reason that it has been decided, and stated in a Rescript, that a guardian shall be excused who has been appointed within a year after he had returned from employment in the public service, and that period having elapsed, he can be appointed in his own place. 3And, although a freedman who acts as agent for the transaction of the business of his patron, a Senator, has a valid excuse for not assuming the guardianship of others, still, he who has acquired the right to wear a gold ring and by this means passes into the rank of freeborn persons cannot avail himself of an excuse of this kind.

45 The Same, Disputations, Book III. “I appoint Titius the guardian of my children as long as he is not absent on business for the State.” Titius administers the guardianship conferred by will, and afterwards departs on business for the State, and ceases to discharge these duties. Shall he be excused on account of his absence on public business, just as if a new guardianship is now conferred upon him? Or should he not be excused because the will preceded his absence in the service of the government, and the guardianship has already been partially administered by him? But what if, in the meantime, children enough should be born to him for him to claim another right to be discharged? The better opinion is that this is but a single guardianship, and therefore he is not entitled to be excused; and that an action of guardianship cannot be brought against him on account of the former time of his administration. 1Where, however, the following clause appeared in the will: “I appoint Titius guardian, and, as long as he is absent in the service of the government, he shall not be guardian, but after he returns, he shall be.” Let us see what must be held with reference to his absence on account of public business, or in support of any other excuse which may afterwards arise. Another question, however, comes first in order, that is to say, whether testamentary guardians who have been appointed on a certain day, or under some condition, must offer their excuses before the expiration of the time, or the fulfillment of the condition; and especially whether the term of fifty days in which they are required to state their reasons for being excused, begins to run at once. It is true that a party does not become a guardian before the expiration of the time, as he cannot perform its duties before the estate has been entered upon. Therefore, for the reason that the guardianship has been administered in accordance with the terms of the same will, and the guardian has been excused because he was about to be absent on public business; having returned, he instantly becomes concerned with the administration of the guardianship previously undertaken, even though this should be within a year. In this instance, however, he ceases to be guardian under the same will, and hence can be excused from a second guardianship. 2Where a curator is appointed by the Prætor for an insane person or one who is dumb, or for an unborn child, he can be excused on the ground of the number of his children. 3We should only understand guardians as being appointed at Rome who are named either by the Prefect of the City, or by the Prætor, or in a will executed at Rome, or in houses adjoining the City. 4Where a freedman is prevented by bodily or mental illness from transacting business, so that he cannot attend to his own affairs, the necessity of the case must be considered, in order to prevent the duties of guardianship which cannot be performed from being imposed upon the freedman, to the inconvenience and disadvantage of the ward.

46 Paulus, On Judicial Inquiries. Members of the guild of millers are excused from the duties of guardianship, provided they are actually engaged in the business; but I do not think that those who are merely included in their number should be excused. 1Millers residing in the City are excused from acting as guardians, even for the children of their colleagues. 2Where anyone states that his residence is not situated where he was appointed guardian, this can also be alleged as a valid excuse. Attention was called to this point by the Emperor Antoninus and his Divine Father.