Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1928)
Convertit in Anglica lingua Scott (1932)
Dig. XXVI10,
De suspectis tutoribus et curatoribus
Liber vicesimus sextus
X.

De suspectis tutoribus et curatoribus

(Concerning Suspected Guardians and Curators.)

1Ulpianus libro trigesimo quinto ad edictum. Haec clausula et frequens et pernecessaria est: cottidie enim suspecti tutores postulantur. 1Primum igitur tractemus, unde descendat suspecti crimen et apud quos postulari quis possit suspectus tutor vel curator, deinde quis et a quo et ex quibus causis removetur, deque poena suspecti. 2Sciendum est suspecti crimen e lege duodecim tabularum descendere. 3Damus autem ius removendi suspectos tutores Romae praetoribus, in provinciis praesidibus earum. 4An autem apud legatum proconsulis suspectus postulari possit, dubium fuit: sed imperator Antoninus cum divo Severo Braduae Maurico proconsuli Africae rescripsit posse, quia mandata iurisdictione officium ad eum totum iuris dicundi transit. ergo et si praetor mandet iurisdictionem, simili modo dicendum est suspectum posse apud eum postulari cui mandata est: cum enim sit in provincia hoc rescriptum, consequens erit dicere et eum, cui a praetore mandata est iurisdictio, posse de suspecto cognoscere. 5Ostendimus, qui possunt de suspecto cognoscere: nunc videamus, qui suspecti fieri possunt. et quidem omnes tutores possunt, sive testamentarii sint, sive non sint, sed alterius generis tutores. quare et si legitimus sit tutor, accusari poterit. quid si patronus? adhuc idem erit dicendum, modo ut meminerimus patrono parcendum. 6Consequens est, ut videamus, qui possunt suspectos postulare: et sciendum est quasi publicam esse hanc actionem, hoc est omnibus patere. 7Quin immo et mulieres admittuntur, sed hae solae, quae pietate necessitudinis ductae ad hoc procedunt, ut puta mater. nutrix quoque et avia possunt. potest et soror, nam in sorore et rescriptum exstat divi Severi: et si qua alia mulier fuerit, cuius praetor perpensam pietatem intellexerit non sexus verecundiam egredientis, sed pietate productam non continere iniuriam pupillorum, admittet eam ad accusationem. 8Si quis de plebeis ob facta atrociora in tutela admissa fuerit apud praetorem accusatus, remittitur ad praefectum urbis graviter puniendus.

1Ulpianus, On the Edict, Book XXXV. The subject which we are about to discuss is one of frequent occurrence and extremely important, for guardians are every day charged with being suspicious. 1Therefore, let us examine, in the first place, how this charge of being suspicious originates; before whom a guardian or a curator can be accused of being suspicious; and finally, who can be removed, and by whom, and for what reasons; and what is the punishment of a suspected guardian. 2It should be remembered that the accusation of suspicion is derived from the Law of the Twelve Tables. 3We give the right of removing suspected guardians to the Prætors, at Rome, and in the provinces, to the Governors of the same. 4There was formerly some doubt as to whether a suspected guardian could be accused before the Deputy of the Proconsul. The Emperor Antoninus, along with the Divine Severus, stated in a Rescript to Braduas Mauricus, Proconsul of Africa, that this could be done, because when the jurisdiction of the Proconsul was delegated, the entire duty of dispensing justice passed to him. Therefore, if the Prætor delegates his jurisdiction, it must be said that a suspected guardian can likewise be accused before him to whom the authority was transferred; for, while this rescript only has reference to provinces, he also to whom jurisdiction has been delegated by the Prætor can take cognizance of the case of a suspected guardian. 5We have shown who can take cognizance of an accusation of suspicion; now let us see what guardians can be suspected. And, in fact, all guardians can be denounced as suspicious, whether they are testamentary, or not, or of some other kind. Hence a legal guardian can be accused, but what if he is a patron? The same rule will still apply, provided we remember that favor should be shown to a patron. 6The next thing in order is to see who can accuse a patron as being suspicious. And it should be remembered that this is a public action, that is to say, it is open to all. 7Moreover, even women are permitted to bring such an accusation, but only those can do so who are necessarily induced to proceed through affection, as, for instance, a mother, a nurse, and a grandmother. A sister, also, can denounce a guardian as suspicious (for a Rescript of the Divine Severus with reference to a sister is extant). And, indeed, the Prætor will permit any other woman to bring such an accusation, whose sincere affection he knows to exist, who does not transgress the modesty of her sex, and who has such a regard for the ward that she cannot bear to have injury inflicted upon him. 8Where anyone of plebeian rank is accused before the Prætor of any atrocious acts committed during his guardianship, he shall be sent to the Prefect of the City to be severely punished.

2Idem libro primo de omnibus tribunalibus. Libertus quoque si fraudulenter gessisse tutelam filiorum patroni probetur, ad praefectum urbis remittetur puniendus.

2The Same, On All Tribunals, Book I. A freedman shall also be sent to the Prefect of the City for punishment, if he is proved to have fraudulently administered the guardianship of the children of his patron.

3Idem libro trigesimo quinto ad edictum. Tutor quoque contutorem potest suspectum facere, sive duret adhuc tutor, sive iam desierit ipse, contutor autem maneat tutor: et ita divus Severus rescripsit. plus divus Pius Caecilio Paetino rescripsit posse tutorem suspectum remotum contutores suos suspectos facere. 1Liberti quoque pupillorum grate facient, si tutores vel curatores eorum male gerentes rem patronorum vel liberorum patronorum suspectos fecerint: sed si patronum suum ut suspectum in tutela facere velint, melius est libertos ab accusatione repelli, ne in ipsa cognitione gravius aliquid emergat, cum hoc aliis omnibus pateat. 2Non tantum autem adulescentis curator, sed etiam furiosi vel prodigi ut suspectus removeri potest. 3Sed et si quis curam ventris bonorumve administrat, non carebit huius criminis metu. 4Praeterea videndum, an et sine accusatione possit suspectus repelli. et magis est, ut repelli debeat, si praetori liqueat ex apertissimis rerum argumentis suspectum eum esse: quod favore pupillorum accipiendum est. 5Nunc videamus, ex quibus causis suspecti removeantur. et sciendum est aut ob dolum in tutela admissum suspectum licere postulare, si forte grassatus in tutela est aut sordide egit vel perniciose pupillo vel aliquid intercepit ex rebus pupillaribus iam tutor. quod si quid admisit, ante tamen admisit, quam tutor esset, quamvis in bonis pupilli vel in tutela, non potest suspectus tutor postulari, quia delictum tutelam praecessit. proinde si pupilli substantiam expilavit, sed antequam tutor esset, accusari debet expilatae hereditatis crimine, si minus, furti. 6Quaeri potest, si tutor fuerit pupilli idemque sit curator confirmatus adulescenti, an possit ex delictis tutelae suspectus postulari. et cum possit tutelae a concuratoribus conveniri, consequens erit dicere cessare suspecti accusationem, quia tutelae agi possit deposito officio et alio sumpto. 7Idem erit quaerendum et si proponas aliquem desisse esse tutorem et rursum coepisse (ut puta usque ad tempus vel ad condicionem erat datus, deinde iterum vel superveniente condicione testamentaria vel etiam a praetore postea datus est), an suspectus postulari possit. et quia duae tutelae sunt, si est, qui eum tutelae iudicio conveniat, aequissimum erit dicere cessare crimen suspecti. 8Si autem ipse tutor est solus, numquid, quia tutelae cessat, removendus sit ab hac administratione, quasi in hac suspectus ex eo, quod in alia male versatus sit? ergo et in eo, qui curator solus post finitam tutelam confirmatus est, idem dici potest. 9Quod si quis ita tutor datus sit: ‘quoad in Italia erit, tutor esto’ vel ‘quoad trans mare non ierit’, an possit suspectus postulari ex eo gestu, quem administravit, antequam trans mare abesset? et magis est, ut postulari possit, quasi una tutela sit habens intervalla. 10Si quis afuturus rei publicae causa desideravit in locum suum constitui alium tutorem, an reversus ex ante gesto suspectus postulari possit? et quia potest ex priore gestu utili actione conveniri, cessabit postulatio. 11Si curator ventri bonisque datus fraudulenter versatus sit, deinde tutor datus, an postulari suspectus propter fraudes in cura admissas possit, dubitari potest. et si quidem habet contutores, non poterit postulari, quia conveniri potest, si non habet, amoveri potest. 12Si tutor inimicus pupillo parentibusve eius sit et generaliter si qua iusta causa praetorem moverit, cur non debeat in ea tutela versari, reicere eum debebit. 13Severus et Antoninus rescripserunt Epicurio tutores, qui res vetitas sine decreto distraxerunt, nihil quidem egisse, verum si per fraudem id fecerunt, removeri eos oportere. 14Tutor, qui ad alimenta pupillo praestanda copiam sui non faciat, suspectus est poteritque removeri. 15Sed si non latitet, sed praesens nihil posse decerni contendit quasi inopibus, si datis pupillo advocatis in mendacio revincatur, ad praefectum urbis remittendus est: neque enim interest id agere quemquam, ut corrupta fide inquisitionis tutor constituatur, an bona fide constitutum velut praedonem bonis alienis incumbere: hic ergo non quasi suspectus removebitur, sed remittetur puniendus ea poena, qua solent adfici, qui tutelam corruptis ministeriis praetoris redemerunt. 16Qui pecuniam ad praediorum emptionem conferre neque pecuniam deponere pervicaciter perstant, quoad emptionis occasio inveniatur, vinculis publicis iubentur contineri, et insuper pro suspectis habentur. sed sciendum est non omnes hac severitate debere tractari, sed utique humiliores: ceterum eos, qui sunt in aliqua dignitate positi, non opinor vinculis publicis contineri oportere. 17Is tutor, qui inconsideranter pupillum vel dolo abstinuit hereditate, potest suspectus postulari. 18Qui ob segnitiam vel rusticitatem inertiam simplicitatem vel ineptiam remotus sit, in hac causa est, ut integra existimatione tutela vel cura abeat. sed et si quis ob fraudem non removebit aliquem, sed ei adiunxerit, non erit famosus, quia non est abire tutela iussus.

3The Same, On the Edict, Book XXXV. A guardian can also accuse his fellow-guardian of being suspicious, either during his term of office, or after he has relinquished it, and while his fellow-guardian still continues the administration of the same. This the Divine Severus stated in a Rescript. The Divine Pius went still further in a Rescript addressed to Cæcilius Petinus, and held that a guardian who had been removed for being suspicious, could bring the same charge against his fellow-guardians. 1The freedmen of wards will act in a grateful manner if they denounce as suspicious the guardians or curators of the said wards, where they improperly conduct the affairs of their patrons, or of the children of the latter. But if they wish to accuse their own patron of being suspicious in the management of the guardianship, it is a better plan to reject their accusation, for fear that something more serious may be divulged during the inquiry; since the right to bring such a charge is open to all persons. 2Not only the curator of a minor, but also one of an insane person or a spendthrift, can be removed on the ground of suspicion. 3Moreover, anyone who has supervision of the interests of an unborn child, or of property without an owner, is not free from the danger of being called to account by this proceeding. 4Again, let us see whether a suspected guardian can be discharged without any accusation. The better opinion is that he should be discharged, if it should appear to the Prætor, from conclusive evidence of the facts, that he is suspicious. This should be understood as being for the benefit of wards. 5Now let us consider for what reasons suspected guardians may be removed. And it should be noted that it is permissible to accuse a guardian of being suspicious, if, on account of having committed fraud during his guardianship, he neglected his duties, or acted basely, or in any manner injuriously to his ward; or, while administering the trust, he misappropriated any of the property of the former. If, however, he has done anything of this kind before he assumed the office, even though it had reference to the property of the ward or the management of the guardianship, he cannot be accused of being suspicious, because the offence took place before his appointment. Hence, if he should have stolen any of the property of the ward before he became his guardian, he should be accused of the crime of robbing the estate, otherwise of theft. 6It may be asked if anyone who was the guardian of a ward, and was afterwards appointed his curator, can be accused of being suspicious, on account of offences committed during the guardianship. And, as an action on guardianship can be brought against him by his colleagues, it follows that it must be held that an accusation of suspicion cannot be brought, for the reason that an action on guardianship will lie after that office is relinquished and the duties of the other assumed. 7The same question may arise where it is stated that one having ceased to be guardian resumes the office; as, for instance, where he was appointed for a certain time, or under some condition, and he is appointed a second time, either on the fulfillment of some testamentary condition, or by the Prætor; for can he then be denounced as suspicious? And since there are two guardianships, if there is anyone who can bring a tutelary action against him, it would be perfectly proper to hold that an accusation for suspicion will not lie. 8If, however, there is but one guardian, as the investigation of his administration cannot be made, should he be removed from the management of the trust, as being suspicious, because he was guilty of improper conduct during his former guardianship. Hence the same rule can be said to apply in the case where a single curator was appointed after the termination of the guardianship. 9If a guardian should be appointed to hold his office as long as he remains in Italy, or as long as he does not go beyond sea, can he be accused of being suspicious on account of some act which he performed before he went beyond sea? The better opinion is that he can be accused, since the guardianship remains the same where it has intervals. 10Where anyone, who is about to be absent on business for the State, requests that another guardian be appointed in his stead, can he, after his return, be accused of being suspicious, because of some transaction which took place before his departure? Since he can be sued in a prætorian action on account of his previous administration, the accusation cannot be brought. 11Where a party who was appointed the curator of an unborn child, or of unoccupied property, was guilty of fraudulent conduct, and afterwards becomes the guardian of said child, is there any doubt that he can be accused of being suspicious on account of the fraud which he committed during his curatorship? If, indeed, he has any fellow-guardians, he cannot be accused, for the reason that an action can be brought against him, but if he has none, he can be removed from office. 12Where a guardian is an enemy of the ward or his relatives, and, generally speaking, if there is any good reason to induce the Prætor not to permit him to administer the guardianship, he should reject him. 13Severus and Antoninus stated in a Rescript to Epicurius that: “If guardians should sell property which it is forbidden to dispose of without a decree, the sale will be void; but if they fraudulently alienate the said property, they must be removed.” 14A guardian who does not demonstrate his ability to support his ward is suspicious, and can be removed. 15If, however, he does not conceal himself, but, being present, contends that no decree can be rendered against him, because the wards are poor; and if, after advocates have been appointed for the ward, the guardian is convicted of falsehood, he should be sent before the Prefect of the City; nor does it make any difference if someone does this in order that he himself may be appointed guardian by means of a fraudulent examination, or if, having been appointed in good faith, he intends to plunder the property of another. Therefore, he should not be removed on the ground of suspicion, but should be sent to the magistrate to undergo the penalty which is ordinarily imposed upon those who purchase a guardianship, through having corrupted the officers of the Prætor. 16Guardians who have not made an inventory, or who obstinately refuse to employ the money of the ward in the purchase of land, or deposit it until an opportunity for its investment may be found, are ordered to be imprisoned, and, in addition, should be regarded as being suspicious. It must be remembered, however, that all should not be treated with this severity, but only those of inferior rank; for I do not think that persons of high position should be confined in prison on this account. 17A guardian who, without proper consideration, or through fraud, induces his ward to reject an estate, can be accused as suspicious. 18Where a guardian is removed on account of laziness, idleness, stupidity, or incompetence, he relinquishes the guardianship or curatorship without any imputation against his integrity. When, however, he is not removed from office on account of fraud, but only that a curator may be joined with him, he will not be in bad repute, for the reason that he was not ordered to surrender the guardianship.

4Idem libro primo de omnibus tribunalibus. Hae enim causae faciunt, ut integra existimatione tutela vel cura quis abeat. 1Decreto igitur debebit causa removendi significari, ut appareat de existimatione. 2Quid ergo si non significaverit causam remotionis decreto suo? Papinianus ait debuisse dici hunc integrae esse famae, et est verum. 3Si praetor sententia sua non removerit tutela, sed gerere prohibuit, dicendum est magis esse, ut et hic desinat tutor esse. 4Qui nihil gesserunt, non possunt suspecti postulari, verum ob ignaviam vel neglegentiam vel dolum, si dolo fecerunt, possunt removeri.

4The Same, On All Tribunals, Book I. There are reasons why anyone may relinquish a guardianship or a curatorship and preserve his reputation. 1Therefore, the cause of his removal should be mentioned in the decree, in order that it may be known that the reputation of the guardian does not suffer. 2But what if the magistrate did not, in his decree, indicate the cause of the removal? Papinianus says that this should not affect the good name of the guardian; which is correct. 3If the Prætor by his decision does not remove the guardian from office, but forbids him to discharge its duties, it must be said that the better opinion is that he ceases to be a guardian. 4Those who have administered none of the affairs of the trust cannot be accused of being suspicious; they can, however, be removed on the ground of idleness, negligence, or fraud, if they have acted dishonestly.

5Idem libro tertio disputationum. Suspectus fieri is quoque, qui satis dederit vel nunc offerat, potest: expedit enim pupillo rem suam salvam fore, quam tabulas rem salvam fore cautionis habere: nec ferendus est contutor, qui ideo collegam suum suspectum non fecit, quoniam cautum erat pupillo,

5The Same, Disputations, Book III. He also can be denounced as suspicious who has given security, or who offers to give it; for it is more advantageous for the ward to have his property safe than to hold instruments merely providing for its preservation. Nor is a fellow-guardian to be tolerated who did not denounce his colleague as suspicious, because he had given security to his ward,

6Callistratus libro quarto de cognitionibus. quia satisdatio propositum tutoris malevolum non mutat, sed diutius grassandi in re familiari facultatem praestat.

6Callistratus, On Judicial Inquiries, Book IV. For the reason that security does not change the evil disposition of the guardian, but gives him an opportunity to more readily plunder the property of the ward.

7Ulpianus libro primo de omnibus tribunalibus. Impuberibus quidem non permittitur suspectos facere: adulescentibus plane volentibus suspectos facere curatores suos permittitur, dummodo ex consilio necessariorum id faciant. 1Si fraus non sit admissa, sed lata neglegentia, quia ista prope fraudem accedit, removeri hunc quasi suspectum oportet. 2Praeterea accesserunt quaedam species ex epistula imperatoris nostri et divi Severi ad Atrium Clonium: nam adversus eos, qui, ne alimenta decernantur, sui copiam perseverant non facere, ut suis rebus careant praecipitur reique servandae causa pupillus in possessionem mittatur eius, qui suspectus sententia sua factus est quaeque mora deteriora futura sunt curatore dato distrahi iubentur. 3Item si quis tutor datus non compareat, solet edictis evocari, novissimeque si copiam sui non fecerit, ut suspectus removeri ob hoc ipsum, quod copiam sui non fecit. quod et perraro et diligenti habita inquisitione faciendum est.

7Ulpianus, On All Tribunals, Book I. Children under the age of puberty are not permitted to denounce their guardians as suspicious; but it is clear that minors are allowed to denounce their curators in this manner, if they desire to do so; provided that they act under the advice of their near relatives. 1Where not fraud, but gross negligence which very nearly resembles fraud, has been committed by a guardian, he should be removed, as being suspicious. 2In the consideration of this subject, certain additional provisions were made by a Rescript of our Emperor and the Divine Severus, addressed to Atrius Clonius; for they decreed that, where guardians did not appear in cases involving the distribution of supplies to their wards, they should be deprived of their property, and that the ward should be placed in possession of the effects of him who had been pronounced suspicious by the decree, for the purpose of preserving the same, and if it was perishable, or liable to be diminished in value by delay, it was ordered to be sold, after the appointment of a curator. 3Moreover, if a guardian does not appear after having been appointed, it is customary to summon him by several proclamations, and finally, if he does not present himself, he should be removed from office, because of his non-appearance. This proceeding should only be resorted to very rarely, and after a careful investigation has been made.

8Idem libro sexagesimo primo ad edictum. Suspectum tutorem eum putamus, qui moribus talis est, ut suspectus sit: enimvero tutor quamvis pauper est, fidelis tamen et diligens, removendus non est quasi suspectus.

8The Same, On the Edict, Book LXI. We consider a guardian to be suspicious whose behavior is such as to render him an object of distrust; for a guardian, however poor he may be, should not be removed on the ground of suspicion, if he is trustworthy and diligent.

9Modestinus libro singulari de heurematicis. Si tutor aliquo vinculo necessitudinis vel adfinitatis pupillo coniunctus sit vel si patronus pupilli liberti tutelam gerit et quis eorum a tutela removendus videatur, optimum factum est curatorem ei potius adiungi quam eundem cum notata fide et existimatione removeri.

9Modestinus, Inventions. Where a guardian is connected with his ward by some tie of relationship or affinity, or where a patron is administering the guardianship of his enfranchised ward, and is about to be removed from the office, the best course is for a curator to be joined with him, rather than to have him removed with blemished character and reputation.

10Papinianus libro duodecimo quaestionum. Decreto praetoris ut suspectus remotus periculum futuri temporis non timet: iniquum enim videtur removeri quidem a tutela vel cura, in futurum autem non esse securum.

10Papinianus, Questions, Book XII. When a guardian is removed on account of suspicion, by a decree of the Prætor, he need have no apprehension of liability for the time to come, for it would be unjust for anyone to be removed from guardianship or curatorship, and still not be secure for the future.

11Idem libro quinto responsorum. Post finitam tutelam cognitio suspecti tutoris quamvis pridem recepta solvitur.

11The Same, Opinions, Book V. After a guardianship has ceased to exist, the investigation of a suspected guardian is also at an end, even though the guardianship was the first to terminate.

12Iulius Aquila libro responsorum. Nihil proponi, cur praescribere curator possit in cognitione suspecti, quo minus religio praetoris a pupillari servo detegente fraudes instruatur.

12Julius Aquila, Opinions. In an investigation of suspicion there is nothing in the facts stated, by which a curator can prevent the Prætor from making use of a slave of the ward for the detection of the fraud of the curator.