The Same, Excuses, Book I. The magistrates should be informed that they cannot appoint women the curators of minors. 1If a mother should appoint her children her heirs under the condition that they shall be free from the authority of their father, and they should become free and heirs for this reason, their father cannot be appointed their curator, even if he should desire it; in order to prevent what the testatrix was unwilling to take place from being done. This rule was established by the Divine Severus. 2Where anyone has been forbidden to be a guardian by the parents of the minor, he cannot be appointed by the magistrates, and if he should be appointed, he can be prevented from acting as guardian without prejudice to his reputation. 3Magistrates cannot appoint as guardians or curators persons who are on an embassy; because during the time that they are so employed, the responsibility of guardianship does not attach to them. 4If a chief magistrate at Rome appoints as guardian a man of a province who is employed in the business of an embassy, he shall be discharged. 5It is necessary for a magistrate, among other things, to inquire into the morals of the parties to be appointed guardians, for neither their means nor their rank are sufficient to establish their integrity, or take the place of benevolent intentions and affable manners. 6The magistrate should be especially careful not to appoint those who thrust themselves forward for that purpose, or who offer bribes; for it has been established that such persons are liable to punishment.

The Same, Excuses, Book I. Where minors have no one who can legally act for them as defenders, and they require guardians on account of their age, they can request that their next of kin, or those who are connected with them by affinity, or members of the family of their male or female relatives, be appointed their guardians, and the friends of their parents and the teachers of the children themselves can ask that this be done. 1Therefore, strangers can voluntarily ask for the appointment of guardians, but there are certain persons who are required to apply for this to be done; as, for instance, the mother and freedmen, for the former would suffer loss, and the latter be liable to punishment, if they should not request the appointment of those who can act as defenders under the law. For the mother would be excluded from the lawful succession of her son because, having neglected to have a guardian appointed for him, she would be considered unworthy to legally inherit his estate. And not only would this be the case if she did not request the appointment at all, or if, merely to satisfy the requirements of the law, she should ask the appointment of one who is liable to be discharged, and afterwards he should be discharged or removed; and she did not then ask for the appointment of another, or intentionally sought the appointment of persons of bad character. Moreover, freedmen who on this account are accused before the Governor can be punished, if it should appear that, either through negligence or malice, they did not request the appointment of a guardian. 2What has just been stated with reference to a mother is set forth in an Epistle of the Divine Severus, the terms of which are as follows: “The Divine Severus to Cuspius Rufinus. I desire all persons to know that I pay special attention to the relief of wards, as this is a matter which relates to the public welfare. And, therefore, where a mother does not apply for the appointment of suitable guardians for her children, or where those who have been previously appointed have been excused or rejected, and she does not immediately ask for the appointment of others; she shall not be entitled to claim the property of any of her children who may die intestate.” 3Where anyone, for instance, a creditor or a legatee, or any other person, finds it necessary to institute proceedings against a minor, he himself cannot ask that a guardian be appointed for said minor; but he can make the request of those who can apply for such an appointment, and if they neglect to do so, he can then appear before the Governor and state the facts to him, so that the legal requirements having been observed, he can proceed against the aforesaid minor. 4So much with reference to guardians. Minors can themselves apply for the appointment of curators, if they are present; but if any of them should be absent, he can make the application by means of an attorney. 5The question arises whether another party can apply for the appointment of a curator for a minor. The distinguished Ulpianus states that another cannot make such an application, but that the minor himself must make it. And it is stated by Paulus in the Ninth Book of Opinions, that the appointment of a curator cannot legally be requested by a guardian, where a female ward is ignorant of the fact, or does not direct this to be done; and that he who makes such an application shall very properly be compelled to be responsible for the business transacted by the illegally appointed curator. In another part of the same book, he gives it as his opinion that, if the Emperor, on the application of a mother, should appoint a guardian for her daughter, she must assume the responsibility for his administration of the curatorship. 6Those who are discharged from guardianship, on account of any excuse whatsoever, are not required to apply for another guardian for their wards; as is stated in the Constitution of Severus and Antoninus.

Modestinus, Excuses, Book I. “The Divine Severus and Antoninus, Emperors, to Sergius Julianus: The rule under which individual guardians are sometimes liable in full, to the extent that each one has administered the guardianship, only applies before the age of puberty is reached, and is not available if the administration continues after that time.”

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.

The Same, Excuses, Book I. It must be remembered that when anyone continues to dwell upon a tract of land he is not considered to be the resident of a municipality; for he who does not enjoy the privileges of a town is not held to be a citizen of it.