The Institutes of Justinian Part 3

In default of a testamentary guardian, the statute of the Twelve Tables a.s.signs the guardianship to the nearest agnates, who are hence called statutory guardians.

1 Agnates are persons related to one another by males, that is, through their male ascendants; for instance, a brother by the same father, a brother's son, or such son's son, a father's brother, his son or son's son. But persons related only by blood through females are not agnates, but merely cognates. Thus the son of your father's sister is no agnate of yours, but merely your cognate, and vice versa; for children are member's of their father's family, and not of your mother's.

2 It was said that the statute confers the guardianship, in case of intestacy, on the nearest agnates; but by intestacy here must be understood not only complete intestacy of a person having power to appoint a testamentary guardian, but also the mere omission to make such appointment, and also the case of a person appointed testamentary guardian dying in the testator's lifetime.

3 Loss of status of any kind ordinarily extinguishes rights by agnation, for agnation is a t.i.tle 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 t.i.tle to the same extent that they can affect those annexed to a civil one.

t.i.tLE XVI. OF LOSS OF STATUS

Loss of status, or change in one's previous civil rights, is of three orders, greatest, minor or intermediate, and least.

1 The greatest loss of status is the simultaneous loss of citizenship and freedom, exemplified in those persons who by a terrible sentence are made 'slaves of punishment,' in freedmen condemned for ingrat.i.tude 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 emanc.i.p.ation.

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 ent.i.tled to be guardians, it is not all who are so ent.i.tled, but only those of the nearest degree, though if all are in the same degree, all are ent.i.tled.

t.i.tLE XVII. OF THE STATUTORY GUARDIANSHIP OF PATRONS

The same statute of the Twelve Tables a.s.signs 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 p.u.b.erty is manumitted by a woman, though she is ent.i.tled, as patroness, to the succession, another person is guardian.

t.i.tLE XVIII. OF THE STATUTORY GUARDIANSHIP OF PARENTS

The a.n.a.logy of the patron guardian led to another kind of socalled statutory guardianship, namely that of a parent over a son or daughter, or a grandson or granddaughter by a son, or any other descendant through males, whom he emanc.i.p.ates below the age of p.u.b.erty: in which case he will be statutory guardian.

t.i.tLE XIX. OF FIDUCIARY GUARDIANSHIP

There is another kind of guardianship known as fiduciary guardianship, which arises in the following manner. If a parent emanc.i.p.ates a son or daughter, a grandson or granddaughter, or other descendant while under the age of p.u.b.erty, 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 emanc.i.p.ated. 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 emanc.i.p.ated 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 const.i.tution.

t.i.tLE XX. OF ATILIAN GUARDIANS, AND THOSE APPOINTED UNDER THE LEX IULIA ET t.i.tIA

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 t.i.tia 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 subst.i.tute could be appointed under these statutes during the pendency of the condition, or until the expiration of the term: and even if no condition was attached to the appointment of a testamentary guardian, a temporary guardian could be obtained under these statutes until the succession had vested. In all these cases the office of the guardian so appointed determined as soon as the condition was fulfilled, or the term expired, or the succession vested in the heir.

2 On the capture of a guardian by the enemy, the same statutes regulated the appointment of a subst.i.tute, who continued in office until the return of the captive; for if he returned, he recovered the guardianship by the law of postliminium.

3 But guardians have now ceased to be appointed under these statutes, the place of the magistrates directed by them to appoint being taken, first, by the consuls, who began to appoint guardians to pupils of either s.e.x after inquiry into the case, and then by the praetors, who were subst.i.tuted for the consuls by the imperial const.i.tutions; for these statutes contained no provisions as to security to be taken from guardians for the safety of their pupils' property, or compelling them to accept the office in case of disinclination.

4 Under the present law, guardians are appointed at Rome by the prefect of the city, and by the praetor when the case falls within his jurisdiction; in the provinces they are appointed, after inquiry, by the governor, or by inferior magistrates at the latter's behest if the pupil's property is of no great value.

5 By our const.i.tution, however, we have done away with all difficulties of this kind relating to the appointing person, and dispensed with the necessity of waiting for an order from the governor, by enacting that if the property of the pupil or adult does not exceed five hundred solidi, guardians or curators shall be appointed by the officers known as defenders of the city, along with the holy bishop of the place, or in the presence of other public persons, or by the magistrates, or by the judge of the city of Alexandria; security being given in the amounts required by the const.i.tution, and those who take it being responsible if it be insufficient.

6 The wardship of children below the age of p.u.b.erty is in accordance with the law of nature, which prescribes that persons of immature years shall be under another's guidance and control.

7 As guardians have the management of their pupils' business, they are liable to be sued on account of their administration as soon as the pupil attains the age of p.u.b.erty.

t.i.tLE XXI. OF THE AUTHORITY OF GUARDIANS

In some cases a pupil cannot lawfully act without the authority of his guardian, in others he can. Such authority, for instance, is not necessary when a pupil stipulates for the delivery of property, though it is otherwise where he is the promisor; for it is an established rule that the guardian's authority is not necessary for any act by which the pupil simply improves his own position, though it cannot be dispensed with where he proposes to make it worse. Consequently, unless the guardian authorizes all transactions generating bilateral obligations, such as sale, hire, agency, and deposit, the pupil is not bound, though he can compel the other contracting party to discharge his own obligation.

1 Pupils, however, require their guardian's authority before they can enter on an inheritance, demand the possession of goods, or accept an inheritance by way of trust, even though such act be advantageous to them, and involves no chance of loss.

2 If the guardian thinks the transaction will be beneficial to his pupil, his authority should be given presently and on the spot.

Subsequent ratification, or authority given by letter, has no effect.

3 In case of a suit between guardian and pupil, as the former cannot lawfully authorize an act in which he is personally concerned or interested, a curator is now appointed, in lieu of the old praetorian guardian, with whose cooperation the suit is carried on, his office determining as soon as it is decided.

t.i.tLE XXII. OF THE MODES IN WHICH GUARDIANSHIP IS TERMINATED

Pupils of either s.e.x are freed from guardianship when they reach the age of p.u.b.erty, which the ancients were inclined to determine, in the case of males, not only by age, but also by reference to the physical development of individuals. Our majesty, however, has deemed it not unworthy of the purity of our times to apply in the case of males also the moral considerations which, even among the ancients, forbade in the case of females as indecent the inspection of the person. Consequently by the promulgation of our sacred const.i.tution we have enacted that p.u.b.erty in males shall be considered to commence immediately on the completion of the fourteenth year, leaving unaltered the rule judiciously laid down by the ancients as to females, according to which they are held fit for marriage after completing their twelfth year.

1 Again, tutelage is terminated by adrogation or deportation of the pupil before he attains the age of p.u.b.erty, or by his being reduced to slavery or taken captive by the enemy.

2 So too if a testamentary guardian be appointed to hold office until the occurrence of a condition, on this occurrence his office determines.

3 Similarly tutelage is terminated by the death either of pupil or of guardian.

4 If a guardian suffers such a loss of status as entails loss of either liberty or citizenship, his office thereby completely determines. It is, however, only the statutory kind of guardianship which is destroyed by a guardian's undergoing the least loss of status, for instance, by his giving himself in adoption. Tutelage is in every case put an end to by the pupil's suffering loss of status, even of the lowest order.