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- The Institutes of Justinian - 5/41 -

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 tes- tamentary 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 ap- proved by the governor in all cases, though inquiry into the case is unnecessary.


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, where- by his appointment becomes a valid act, although of course it is otherwise if the testator appointed him guardian in the er- roneous 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 twenty-five 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 im- plicitly 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.


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 as- cendants; 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.


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 con- demned 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 guard- ians, 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.


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.


The analogy of the patron guardian led to another kind of so- called 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.


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.


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 ap- pointed 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 con- dition was fulfilled, or the term expired, or the succession vested in the heir. 2 On the capture of a guardian by the ene- my, the same statutes regulated the appointment of a substitute, who continued in office until the return of the captive; for if he

The Institutes of Justinian - 5/41

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