1Paulus, On the Edict, Book XXXVIII. Guardianship is (as Servius defines the term), authority and power over a free person, granted for the purpose of protecting him who, on account of his age, is unable to protect himself; and this authority is conferred or admitted by the Civil Law. 1Guardians are those who possess this authority and power, and they derive their name from the office itself. Therefore they are styled guardians, being as it were protectors and defenders, just as those are styled guardians of a temple, who are charged with its care. 2A person who is dumb cannot be appointed a guardian, as he cannot exert his authority. 3Many legal writers, among them Pomponius (in the Sixty-ninth Book on the Edict), hold that a deaf person cannot be appointed a guardian, because a guardian should not only be able to speak, but also to hear.

2Pomponius, On Sabinus, Book III. A minor should not be required to ask that a guardian be appointed for him, or to go in search of him.

3Ulpianus, On Sabinus, Book XXXVII. Where a male or female ward has a guardian, and becomes insane, he or she will still remain under guardianship while in this condition. This is the opinion of Quintus Mucius, and was approved by Julianus; and we adopt the rule that curatorship shall cease where the age requires guardianship. Therefore, if wards have guardians, they are not, by reason of their insanity, placed under curatorship; and if they have none, and insanity should attack them, they can, nevertheless, have guardians, because the Law of the Twelve Tables is understood not to apply to wards of either sex. 1For the reason, however, that we do not permit agnates to be the curators of minors, I have thought that even though a minor under the age of twenty-five may be insane, a curator should be appointed for him; not because he is insane, but for the reason that he is a minor, just as if the impediment of age existed. We make this distinction in the case of a person whose age subjects him to curatorship or guardianship, and it is not necessary to appoint a guardian for him on account of his demented condition. This the Emperor Antoninus Augustus stated in a Rescript, since provision should be made for age rather than insanity, during a certain time. 2Where a ward of either sex desires to institute proceedings against his or her lawful guardian, or if the latter desires to do so along with him or her, and a demand is made for a curator, shall he be appointed on the application of the ward, or on that of his or her adversary? It should be remembered that a curator can be appointed whether a ward sues or is sued, but this cannot be done unless he for whom the curator must be appointed requests it. Hence Cassius states in the Sixth Book that no one can be appointed a curator under such circumstances, unless he is present, and the party requesting his appointment is also in court. Therefore, a curator cannot be appointed for an infant. Cassius says that if a minor does not wish to ask for a curator, in order to prevent suit from being brought against him, he should be compelled to make application for one by the Prætor. 3Pomponius states in the Sixteenth Book, that a curator of this kind can be appointed at any place and at any time. 4If a minor petitions for such a curator, and does not state for what purpose he wishes him, shall he be appointed for all the controversies in which the minor may be involved? Celsus says that Servius has decided that the curator should be considered to be appointed for the transaction of all business.

4Paulus, On Sabinus, Book VIII. Where it is stated that the curator is appointed without distinction, he is held to have been designated for the management of all litigation, and this has reference to cases where an action is brought against a guardian for the partition of an estate, or the division of property held in common, or for the establishment of boundaries; and if the appointment thus is made in general terms, a curator is considered to have authority to act not only in cases where the ward is plaintiff, but, on the other hand, where suit is brought against him. 1Several curators can be asked for in the place of several guardians, or one in the place of several, or one curator in the place of one guardian, either for the management of a single lawsuit or for the conduct of several.

5Pomponius, On Sabinus, Book XVII. Where a curator of this kind has once been asked for, he will remain in office until the suit is disposed of, and another curator cannot be asked for in the same proceeding. 1And if, for example, the appointment of Titius is asked for, as against Seius, this same Titius can be appointed to conduct the case against another guardian, so that in different cases one curator will take the place of two. This may happen, indeed, with reference to the same guardian, if the same curator is appointed for the conduct of different cases at different times.

6Ulpianus, On Sabinus, Book XXXVIII. It is true that a guardian can be appointed for minors who are dumb, and have not arrived at puberty. But may it not be doubted whether they can be authorized by their guardian? If the guardian can authorize a ward who is silent, he can also authorize one who is dumb. It is, however, perfectly true (as Julianus states in the Twenty-first Book of the Digest), that the guardian can authorize his ward to act even if he is silent. 1It is settled that a guardian cannot be appointed conditionally by the Governor of a province, and if one should be appointed, his appointment will be of no effect. This is also the opinion of Pomponius. But if a Governor makes the appointment in the following terms: “I appoint such-and-such a man guardian, if he gives security”; this appointment does not contain a condition, but a warning that the guardlianship will not be conferred upon him unless he furnishes security; that is to say, he will not be allowed to transact the business of his office without giving a bond to insure the preservation of the property. 2The appointment of a guardian is not an Imperial privilege, nor one attaching to magisterial jurisdiction, but only belongs to him upon whom the right has been conferred by the law, or by a Decree of the Senate, or by the Emperor himself. 3A guardian can be appointed for a minor who is deaf. 4It is clear that a guardian cannot be appointed for a minor whose father is in the hands of the enemy. If, however, one should be appointed, it may be asked whether or not the appointment may not remain in suspense. I do not think that such an appointment is valid, for, after the return of the father, the minor will again come under his control, just as if his father had never been captured by the enemy. Still, a curator should be appointed for the management of the property to prevent it from being lost in the meantime.

7Ulpianus, Disputations, Book II. Where a son under paternal control is appointed guardian by the Prætor, and his father assents to the appointment, he should be held liable for the entire amount, but if he does not assent, he will be liable only for the amount of the peculium. He will be considered to have approved of the appointment if he himself transacts the business of the guardianship, or consents that his son shall do so; or if he, in any way whatever, concerns himself with the office. Hence, where a man wrote to his son to administer the guardianship carefully, and said, “For you know that we are responsible”; I held that he should be considered to have approved of the appointment. It is clear that if he only advises his son, he should not be held to have given his approbation.

8The Same, Opinions, Book I. A patron, who is also the guardian of his freedman, should carry out his contracts, and if he in any way defrauds the creditors of the ward who is his freedman, the law permits his appointment to be revoked.

9Marcianus, Institutes, Book III. An extraordinary punishment is inflicted upon those who are proved to have obtained a guardianship by the payment of money; or have given their services for a pecuniary consideration in order to secure the appointment of an insolvent guardian; or, when making the inventory, have purposely diminished the amount of the property of the ward; or have alienated it evidently with fraudulent intent.

10Ulpianus, On the Edict, Book II. A man who is not a resident of the town can be appointed a guardian, provided the ward for whom he is appointed is a citizen of the place.

11Paulus, On Vitellius, Book III. If an insane person should be appointed a guardian, the appointment must be understood to have been made under the condition that he becomes of sound mind.

12The Same, Opinions, Book X. The question arose whether parties who are appointed guardians in the place of another, who is absent in the service of the government, would continue in their office if the former should die; or whether application for the appointment of others should be made? Paulus answers that where they are appointed in the place of one who is absent, and the latter does not return, they will continue to hold their office until the ward arrives at the age of puberty.

13Pomponius, Enchiridion, Book II. It is sometimes customary for a curator to be appointed for a ward who has a guardian, either on account of the ill health of the latter, or because of his old age; but he is understood to be rather a business manager than a genuine curator. 1The Prætor is accustomed to permit guardians to appoint an assistant in the administration of the guardianship, where they cannot satisfactorily administer it themselves, but this assistant is appointed at the guardian’s own risk.

14Ulpianus, On Sabinus, Book XXX. Where minors are arrogated or deported, they cease to have guardians. 1The guardianship also terminates where a ward is reduced to slavery. 2Guardians cease to hold office for several other reasons, for example, where either the ward or the guardian is captured by the enemy. 3When a guardian is appointed for a certain time, at the expiration of that time he ceases to hold his office. 4Moreover, a guardian ceases to hold his office where he is removed on account of being suspected. 5Where a guardian is appointed under a certain condition, it also happens that when the condition is fulfilled, he ceases to be a guardian.

15The Same, On Sabinus, Book XXXVIII. Where a guardian is not captured by the enemy, but is sent in the capacity of ambassador, whether he is received or deserts, for the reason that he does not become a slave, he still remains a guardian, but, in the meantime, another guardian will be appointed by the Governor.

16Gaius, On the Provincial Edict, Book XII. Guardianship is generally an office whose duties are exercised by men. 1It must be understood that guardianship does not pass to another by hereditary right. The legal guardianships of parents, however, descend to children of the male sex, who are of age, but others are not transmitted.

17Paulus, On Sabinus, Book VIII. Several decrees of the Senate have been enacted providing that other guardians should be appointed in the place of those who are insane, dumb, and deaf.

18Neratius, Rules, Book III. Women cannot be appointed guardians, because this is an office which belongs to men unless they obtain the guardianship of their children through an express application to the Emperor.