Modestinus, Excuses, Book II. Recent constitutions have greater authority than those which have preceded them.

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.

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.

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.

The Same, Excuses, Book II. The term “children” also extends to grandchildren.