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.

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.

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.

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.

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, 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, 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.

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, 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, 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.

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.

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.