The Same, Excuses, Book I. The magistrates should be informed that they cannot appoint women the curators of minors. 1If a mother should appoint her children her heirs under the condition that they shall be free from the authority of their father, and they should become free and heirs for this reason, their father cannot be appointed their curator, even if he should desire it; in order to prevent what the testatrix was unwilling to take place from being done. This rule was established by the Divine Severus. 2Where anyone has been forbidden to be a guardian by the parents of the minor, he cannot be appointed by the magistrates, and if he should be appointed, he can be prevented from acting as guardian without prejudice to his reputation. 3Magistrates cannot appoint as guardians or curators persons who are on an embassy; because during the time that they are so employed, the responsibility of guardianship does not attach to them. 4If a chief magistrate at Rome appoints as guardian a man of a province who is employed in the business of an embassy, he shall be discharged. 5It is necessary for a magistrate, among other things, to inquire into the morals of the parties to be appointed guardians, for neither their means nor their rank are sufficient to establish their integrity, or take the place of benevolent intentions and affable manners. 6The magistrate should be especially careful not to appoint those who thrust themselves forward for that purpose, or who offer bribes; for it has been established that such persons are liable to punishment.

The Same, Excuses, Book I. Where minors have no one who can legally act for them as defenders, and they require guardians on account of their age, they can request that their next of kin, or those who are connected with them by affinity, or members of the family of their male or female relatives, be appointed their guardians, and the friends of their parents and the teachers of the children themselves can ask that this be done. 1Therefore, strangers can voluntarily ask for the appointment of guardians, but there are certain persons who are required to apply for this to be done; as, for instance, the mother and freedmen, for the former would suffer loss, and the latter be liable to punishment, if they should not request the appointment of those who can act as defenders under the law. For the mother would be excluded from the lawful succession of her son because, having neglected to have a guardian appointed for him, she would be considered unworthy to legally inherit his estate. And not only would this be the case if she did not request the appointment at all, or if, merely to satisfy the requirements of the law, she should ask the appointment of one who is liable to be discharged, and afterwards he should be discharged or removed; and she did not then ask for the appointment of another, or intentionally sought the appointment of persons of bad character. Moreover, freedmen who on this account are accused before the Governor can be punished, if it should appear that, either through negligence or malice, they did not request the appointment of a guardian. 2What has just been stated with reference to a mother is set forth in an Epistle of the Divine Severus, the terms of which are as follows: “The Divine Severus to Cuspius Rufinus. I desire all persons to know that I pay special attention to the relief of wards, as this is a matter which relates to the public welfare. And, therefore, where a mother does not apply for the appointment of suitable guardians for her children, or where those who have been previously appointed have been excused or rejected, and she does not immediately ask for the appointment of others; she shall not be entitled to claim the property of any of her children who may die intestate.” 3Where anyone, for instance, a creditor or a legatee, or any other person, finds it necessary to institute proceedings against a minor, he himself cannot ask that a guardian be appointed for said minor; but he can make the request of those who can apply for such an appointment, and if they neglect to do so, he can then appear before the Governor and state the facts to him, so that the legal requirements having been observed, he can proceed against the aforesaid minor. 4So much with reference to guardians. Minors can themselves apply for the appointment of curators, if they are present; but if any of them should be absent, he can make the application by means of an attorney. 5The question arises whether another party can apply for the appointment of a curator for a minor. The distinguished Ulpianus states that another cannot make such an application, but that the minor himself must make it. And it is stated by Paulus in the Ninth Book of Opinions, that the appointment of a curator cannot legally be requested by a guardian, where a female ward is ignorant of the fact, or does not direct this to be done; and that he who makes such an application shall very properly be compelled to be responsible for the business transacted by the illegally appointed curator. In another part of the same book, he gives it as his opinion that, if the Emperor, on the application of a mother, should appoint a guardian for her daughter, she must assume the responsibility for his administration of the curatorship. 6Those who are discharged from guardianship, on account of any excuse whatsoever, are not required to apply for another guardian for their wards; as is stated in the Constitution of Severus and Antoninus.

Modestinus, Excuses, Book I. “The Divine Severus and Antoninus, Emperors, to Sergius Julianus: The rule under which individual guardians are sometimes liable in full, to the extent that each one has administered the guardianship, only applies before the age of puberty is reached, and is not available if the administration continues after that time.”

Modestinus, On Excuses, Book I. Herennius Modestinus to Ignatius Dexter, Greeting. I have composed a book which I have entitled “The Excuses of Guardianship and Curatorship”, which seems to me to be very useful, and which I send to you. 1I shall do all that is possible to make the learning of these matters clear, while translating the legal terms into the language of the Greeks, although I am aware that they are not readily adapted to translation. 2I shall also add to the narration of the matters to be discussed the identical phraseology of the enactments, where it is necessary, in order that, by the possession at the same time of the legal doctrines and the commentaries of the same, those requiring them may have the laws in all their integrity and utility. 3Therefore, in the first place, it should be stated what persons should not be appointed. 4Guardians shall not appoint freeborn guardians or curators for minors who are freedmen, unless there is an entire lack of freedmen in the place where the appointment is to be made; for a Rescript of the Divine Marcus directs that freedmen should alone be appointed guardians for emancipated wards, who are residents of the same locality. Where, however, another is appointed, the Divine Severus, mindful of the interest of minors, stated in a Rescript that the party would be liable under the guardianship, unless he could give reasons for not accepting it in compliance with the law. 5A husband cannot act as a guardian of his wife (as the Senate has decreed), and if he should be appointed he shall be discharged.

The Same, Excuses, Book I. It must be remembered that when anyone continues to dwell upon a tract of land he is not considered to be the resident of a municipality; for he who does not enjoy the privileges of a town is not held to be a citizen of it.

Modestinus, Excuses, Book II. Recent constitutions have greater authority than those which have preceded them.

The Same, Excuses, Book II. Persons who have attained the age of seventy years are excused from the duties of guardianship and curatorship. It is necessary, however, that they should have passed the age of seventy at the time of their appointment, either when the heir has entered upon the estate, or when a condition prescribed by law has been fulfilled, and not within the time established to render the excuse valid. 1Moreover, age is established either by the certificate of birth, or by other legal evidence. 2A large number of children is a good excuse for release from the duties of guardianship or curatorship. 3All the children, however, must be legitimate, although they may not be under paternal control. 4It is necessary that the children should be living at the time their fathers are appointed guardians, for any who have previously died shall not be included among those entitled to be excused; nor, on the other hand, do any who die subsequently prejudice the rights of their parent. This is also set forth in a Constitution of the Divine Severus. 5Although, indeed, this seems to have special reference to a testamentary guardian, it is, nevertheless, applicable to all others. 6While a child in the womb of its mother is by many provisions of the law considered as already born, still, neither in the present instance, nor with reference to other civil employments, can this operate to release the father. This rule was also set forth in a Constitution of the Divine Severus. 7Again, not only do sons and daughters effect the release of their father from guardianship, but also grandchildren, both male and female, who are the offspring of sons. Moreover, it is only when their father is dead, that they can supply his place with their grandfather. Then, no matter how many grandchildren are born to a single son, they are reckoned only as one child. This also can be ascertained from those constitutions which treat of children; for it is never easy to ascertain where a constitution refers to sons, but this can readily be done where the reference is to children, for this appellation includes grandchildren also. 8It is necessary that the party who is appointed should have, at the time, the number of children prescribed by the constitutions, for if they should be begotten after his appointment, this will be of no benefit to him by way of excuse, as the Constitution of Severus and Antoninus sets forth. 9Persons who are called to a guardianship or a curatorship may be excused where they already have charge of three guardianships or curatorships; or where three guardianships and three curatorships are united, and are still in existence; that is to say, where the minors have not yet attained their majority. Where, however, anyone is the curator, not of a minor, but of an insane person or a spendthrift, such a curatorship shall be included in the number of those permitting exemption, as is stated in the Constitution of Severus and Antoninus. The distinguished Ulpianus gives the same opinion in the case of persons having the administration of three guardianships.

Modestinus, Excuses, Book II. We have stated that parties charged with the administration of three guardianships are not required to accept a fourth. Hence the question arises, where anyone is administering two guardianships, and having been called upon to accept a third, appeals, and, while the appeal is pending, is appointed to a fourth guardianship, whether he can excuse himself from the fourth by mentioning the third, or whether he can renounce it altogether. I find that it has been determined by the Divine Severus and Antoninus that a party who has appealed from the appointment of a third guardianship cannot be charged with a fourth; but that, while his application to be excused from the third appointment is pending, he must await its determination to ascertain whether he shall be charged with a fourth appointment or not. There is a good reason for this, for if anyone should undertake the administration of the fourth guardianship, and it should happen that his appeal from his appointment to the third was improperly taken, and the appointment should stand, he would be charged with the administration of four guardianships, which is contrary to law. 1Where a father has the administration of three guardianships or curatorships, his son shall not be annoyed with the administration of another, as has been decided by the Divine Severus and Antoninus. This rule also applies to the case of a son, for the guardianship of a son will effect the release of his father, and this is the case where the guardianships are administered in common, by both; that is to say, where one is administered by the son, and two by the father, or vice versa. The same rule applies where the duties of administration are discharged by a single household, and not by separate ones. The distinguished Ulpianus also held this same opinion.

Modestinus, Excuses, Book II. If anyone already charged with the administration of two guardianships should have two others simultaneously imposed upon him, the one which is third in order will be available to him to obtain a release from the fourth; even though the Emperor himself may have made the appointment of the fourth, or the third, if, before he was aware of the order of the Emperor, he had been appointed to the administration of the other guardianship. Where, however, no order was observed, but the two appointments were made by different letters upon the same day, he who made the appointment, and not the appointee, shall select which charge he must administer. 1Grammarians, sophists, rhetoricians, and physicians in active practice, are entitled to exemption from guardianship and curatorship, just as they are from other public employments. 2Again, in every city there are a number of rhetoricians, as well as certain philosophers mentioned in the laws, who are excused from the exercise of public duties, which is stated in a Rescript of Antoninus Pius written for the province of Asia, but which is also applicable to the entire world, and whose contents are as follows: “Small towns are entitled to five physicians, three sophists, and the same number of grammarians, who shall be exempt from the duties of guardianship; larger ones shall be entitled to seven who practice the healing art, and four of each of those who give instruction in both the above-mentioned branches of learning. The largest cities shall be entitled to ten physicians, five rhetoricians, and the same number of grammarians. The largest city, cannot, however, grant exemption to a greater number. It is proper that the capitals of countries should be included in the number of the largest cities; that those which have either a tribunal or a place where causes are heard and determined should be embraced in the second class; and all others in the third.” 3It is not lawful for this number of exceptions to be exceeded either by a Decree of the Senate, or for any other reason; the number can, however, be diminished, since it is apparent that this measure has been taken for the benefit of the civil service. 4These persons, moreover, do not enjoy this exemption, unless they have been regularly registered by a Decree of the Senate, and are not negligent in their practice. 5Paulus states that philosophers are also exempted from guardianship; for he says philosophers, orators, grammarians, and those who publicly instruct youths, are excused from the exercise of its duties. Ulpianus also makes a similar statement in the Fourth Book on the Office of Proconsul. 6Our Emperor and his father stated in a Rescript addressed to Lælius Bassus that a physician could be rejected by a municipality even though he had already been licensed. 7The same Constitution of the Divine Pius states with reference to philosophers that their number has not been officially determined, because very few really belong to this profession. I think, however, that those who are endowed with great wealth will voluntarily contribute their property for the benefit of their country. But where they speak principally of their worldly possessions, it is evident from this fact that they are not true philosophers. 8There is a Section of a Constitution of the Emperor Commodus mentioned in a Rescript of Antoninus Pius, in which it is apparent that philosophers enjoy exemption from the duties of guardianship. It is expressed in the following terms: “Moreover, in conformity with all these things, as soon as my Divine Father ascended the throne, he confirmed by a Constitution all existing honors and immunities, stating that philosophers, rhetoricians, grammarians, and physicians were exempt, while conducting the schools of the priesthood, and that they cannot be forced to furnish supplies of corn, wine, or oil, or purchase the same; that they cannot be compelled to preside in court, or act as deputies, or be enrolled in armies, or, against their consent, be subjected to any other public service.” 9It must also be remembered that anyone who gives instruction in his own country, or practices medicine, is entitled to this exemption, for if a man from Comana teaches or practices medicine in Cæsarea, he will not be exempt at Comana. This rule has also been promulgated by the Divine Severus and Antoninus. 10Indeed, Paulus writes that the Divine Pius and Antoninus ordered that persons distinguished for learning should be exempt, even if they exceeded the number of those already registered; where they established their residence in a different district. 11It was promulgated by the Divine Severus and Antoninus that anyone who taught philosophy at Rome either with or without a salary should enjoy the same exemption as if he taught in his own country. It can be adduced as a reason for such a decree that, as the Imperial City is considered to be the common country of all the people, he who honorably makes himself useful should enjoy exemption there, not less than in the place of his birth or residence. 12In fact, teachers giving instruction in any district are not entitled to exemption, but those who teach at Rome are released from guardianship and curatorship. 13Ulpianus, in his Book on the Duties of the Prætor having Jurisdiction of Guardianship, writes as follows: “Athletes are entitled to exemption from guardianship, but only such as have been crowned in the Sacred Games.” 14The governorship of provinces, as, for instance, of Asia, Bithynia, Cappadocia, confers exemption from guardianship; that is, so long as the parties hold the office. 15Guardianship is not a public employment, nor one to which a salary is attached, but a civil office; and it is held that the administration of a guardianship cannot be carried on outside of the province. 16The magistrates of cities are released from guardianship and curatorship. 17Enmity resulting from the accusation of a capital crime, manifested by the appointee against the father of the ward, also affords a release from guardianship, unless it appears that the guardian was appointed subsequently by will, or after the will was drawn up, the strife due to the capital accusation no longer existed; or the enmity preceded the execution of the will; and it is clear that the guardian was appointed for the purpose of being subjected to responsibility and annoyance growing out of the transaction of business. This also is made manifest by a Rescript of the Emperor Severus. 18Moreover, anyone can be released from the duties of guardianship when a question is raised with reference to the condition of the ward, and it appears that this was not done through malice, but from motives of good faith. This rule was promulgated by the Divine Marcus and Severus. 19Paulus writes as follows with reference to persons residing in the country, who are of humble rank and illiterate: “Inferior rank and rusticity sometimes can be alleged as an excuse, according to Rescripts of the Divine Hadrian and Antoninus.” The excuse of a party who states that he has no knowledge of letters should not be accepted unless he is inexperienced in business.

The Same, Excuses, Book II. The term “children” also extends to grandchildren.

Modestinus, Excuses, Book III. Soldiers, however, who have honorably served their time of enlistment are at present entitled to exemption from the guardianship of any other persons whomsoever. But with reference to the guardianship of the children of those who have served in the same rank, or of such as were formerly soldiers, the comrades of the latter shall be excused during the first year following their discharge. But, after that time, they shall not be entitled to exemption; for the equality of military distinction always appears to be stronger than the privilege attaching to the service, unless perhaps they should have other good reasons for release from guardianship; as, for instance, the number of their years, or anything else of this kind for which it is customary for private individuals to be exempt from all similar obligations. This rule, however, applies to the sons but not to the grandsons of those who were formerly soldiers, for the grandsons of veterans are held to occupy the same position as other private individuals. 1Those, indeed, who have been ignominiously discharged, are considered to be like persons who have never been in the army, and for this reason they themselves are not entitled to the privilege of a soldier; and if others who were formerly in the service should be appointed guardians of their children, they will not be required to serve. 2Sometimes, however, soldiers do not complete their terms of service and still are entitled to exemption from guardianship; but this is not the same exemption as those are entitled to who have served their full time. He who has been more than twenty years in military service is held to be in the same position as he who has served as a soldier for the full time. 3Anyone who has been discharged within this time is not entitled to perpetual exemption from guardianship, but only to exemption for a certain period; just as is the case with other civil employments. Where anyone is released from military duty within five years, he shall not claim any exemption for himself; and he who has served five years shall be entitled to exemption for one year; he who has served eight, shall be exempt for two years; he who has served twelve, for three years; he who has served sixteen for four years; and he who has served twenty years shall, as we stated above, always be exempt. 4Anyone who has served in the Night Watch of Rome shall be entitled to exemption for only one year. 5What has been stated also applies to persons who have been honorably discharged, or have received a discharge on account of illness, for this is also an honorable excuse; but he who has been ignominiously discharged is not entitled to exemption. 6A veteran is considered to be one who has not only served in a legion but has served in any military capacity whatsoever, provided he has been honorably discharged. He can, however, be appointed guardian of the children of another soldier; for one who has served in a legion can be appointed guardian of the children of another who has served in the Night Watch. 7A former soldier can also be appointed curator for a minor in the service, where the father of the latter is dead, or even if he has been emancipated. 8Constitutions exist which establish all these rules. 9Ulpianus also states the same things. Those who have been dishonorably discharged are evidently excluded from guardianship in the City, for the reason that it is unlawful for them to enter therein. Anyone who has served in the urban cohorts, even though he has been discharged before twenty years have elapsed, is still entitled to perpetual exemption from guardianship. 10The question, however, arose whether former soldiers should accept a guardianship at once, or whether during the same time, they could not discharge the duties of the office more than once, so that the first guardianship having been terminated, they could again claim their privilege in a different manner from private persons, who have executed their trust. This will not benefit those who are not entitled to the privilege, nor can it be reckoned among the three which afford exemption; just as in the case of those who were formerly in military service it is no advantage to have been appointed guardians. This was promulgated in the Curiæ, as is shown by a Constitution of the Divine Severus and Antoninus. 11It makes no difference for what reason the children of a fellow-soldier require a guardian or a curator; whether because they are emancipated, or because their father is dead. 12Centurions of the first company of the triarii, are, under the Imperial Constitutions entitled to exemption from all other guardianships, for such captains shall serve as the guardians of the children of others. Those, however, shall be considered centurions of the first company of the triarii who perform the functions of this office. Where, however, one of them dies without discharging his military duties, another officer of this kind shall not be appointed guardian of his children.

Modestinus, Excuses, Book III. However, not only those who have served in the ranks, as well as in the other divisions of the triarii, but also those who, on account of some necessity, have been absent on public business for the benefit of the Roman people, shall be entitled to exemption for the term of one year after their return. 1This term of a year is not only granted to those who have completed their ordinary time of military service while engaged in the business for the State, but also to such as have discharged duties of any kind required by the public service, and have returned, even if in so doing they have consumed less time than had been allotted. 2Where, however, such persons, were administering guardianships before their departure, and, on this account, relinquished them, because they were absent on public business; after they have returned they must immediately take up their duties again without the benefit of the year of exemption, for this year applies to future and new guardianships, and not to those which should be resumed. 3The year of completed days shall be reckoned from the time when the party who is returning takes, or should select, the most direct route, and not one which is circuitous. 4Moreover, guardians who are appointed by will can legally refuse to assume the administration of property situated in another province; as is shown by the following Constitution of the Divine Severus: “The Divine Severus and Antoninus, Emperors, to Valerius. If you have been appointed a testamentary guardian, you must appear within the prescribed time and ask to be released from the administration of property situated in another province.” 5Where one who has completed his service as first centurion of the triarii, has undertaken the guardianship of the son of one of his fellow-soldiers, and has been restored to his position through military necessity, he must relinquish the cares of the guardianship. 6In like manner, a curator shall be appointed for minors in the place of the guardian where the latter has become the colleague of the father of said minors; as is set forth in a Constitution of the Divine Severus; and this is applicable to all similar instances, so that a curator can be appointed in the place of such a guardian when he is temporarily released. 7Where a freedman, who has not arrived at puberty, is appointed by his patron guardian of his children, or where any minor under twenty-five years of age is appointed, so long as he is under the age of puberty, he shall not be required to discharge his duties, but in the meantime a curator shall be appointed in his place. The rule is the same where the legal guardian happens to be a minor, for a curator shall meanwhile be appointed in his stead. 8Where a guardian is ill, but it is not necessary for him to be permanently discharged from the guardianship, a curator shall, for the time, be appointed in his stead, and when he recovers, he shall again resume the performance of his duties. A similar rule applies where a guardian becomes insane. With reference to this, Ulpianus writes as follows: “Illness is a valid excuse, but it must be such an impediment as to prevent anyone from attending to his own affairs”; which our Emperor, together with his father, also stated in a Rescript.

Modestinus, Excuses, Book III. Ulpianus said the same thing. But it is added in this Rescript that it is customary for guardians to be released either temporarily or permanently according to the character of the disease with which they are afflicted. Moreover, insanity does not bring about an absolute discharge, but causes the temporary appointment of a curator. 1There are also others who, although they are already acting as guardians or curators, can still be instantly released from any remaining responsibility; as, for instance, those who, in obedience to a rescript of the Emperor, have changed their residence, he being aware that they were guardians, and having given his express permission for the change to be made, this fact having been stated in the Imperial Letters.

The Same, Excuses, Book IV. It must be noted that neither guardians appointed by proper authority nor testamentary guardians are required to appeal, as is stated by the Constitution of the Divine Severus and Antoninus. This rule should also be observed with reference to the appointment of a curator, for curators in very few respects differ from guardians. They, however, have permission to appeal from decisions brought against them when they offer excuses. 1It is necessary, however, for many formalities to be observed in order that guardians and curators may show good cause for their discharge. They are required, in the first place, to make application to the court within the time prescribed by law, which is as follows. He who is in the same town where he has been appointed, or within the hundredth milestone from said town, shall file his excuse within fifty days, for after this he shall not be permitted to do so, but will be obliged to discharge his duties; and if he does not observe any of these requirements, he will be in the same position as if he had been guilty of negligence, and there will be no way left for him to offer his excuse. Where, however, he is distant more than a hundred miles from the town, he will be entitled to twenty miles for every day from the one on which he received notice of his appointment (and this notice must be served upon him by the Governor either personally, or at his residence) and, in addition to the above twenty days, he shall be entitled to thirty more for the purpose of offering his excuse. This rule likewise applies to all designated by will, whether they are guardians or curators, whose appointments it is customary to have confirmed by a magistrate. 2We also find another provision in the Decree of the Divine Marcus, which is worthy of examination. For, indeed, the legislator grants to the guardian who is in the town in which he was appointed, or who is within the distance of a hundred miles from the same, the term of fifty days, but to him who resides beyond the distance of a hundred miles, he grants one day for every twenty miles, and, in addition to these, he allows thirty days for the presentation of his excuses. It results from this that, if the residence of the person is distant one hundred and sixty miles, he would be entitled to a term of thirty-eight days, that is to say, eight days for the hundred and sixty miles, or one day for every twenty miles, and thirty days in addition, in which to make application to be excused. Therefore, he whose residence is farther away is in a worse condition that he who resides within a hundred miles, or in the town itself; for, indeed, the term of fifty days is always granted to the latter, but a shorter time is allowed the former. But although the terms of the law, if strictly interpreted, should be understood in this way, still, the intention of the legislator was entirely different; for Cerbidius Scævola, Julius Paulus, and Domitius Ulpianus, authorities most eminent and learned in the law, held that this is the case, stating that the rule must be observed that no one shall be entitled to a term of less than fifty days, when the time computed for the journey added to the thirty days which the law allows for the offering of excuses, exceeds fifty days; for instance, if we should say than anyone resides four hundred and forty miles from the town, he will be entitled to twenty-two days to make the journey, and thirty more to present his application to be excused. 3All must observe this rule with reference to time who, for any reason whatsoever, desire, either wholly or in part, to be released from the duties of guardianship or curatorship. 4It has been decided as the result of this that, where anyone desires to avail himself of any kind of an excuse, he shall not be heard, if he does not make his application within the prescribed time; unless, indeed, he should be a citizen of some other state. 5It is so necessary for the prescribed time to be observed, that if this is not done, and the party having presented his excuse should be discharged, he will not be released; as the Divine Severus and Antoninus state in one of their Constitutions which directs that he who has been appointed in the place of a guardian shall not be retained in office, on the ground that it is not lawful for a second guardian to be appointed where there already is one. 6It will be sufficient for the guardian to apply to be excused within the prescribed time; for if afterwards, he, having changed his mind, should desist, it will not prejudice him. Therefore, if anyone merely presents himself, and does not afterwards remain for the purpose of offering his excuses, after the prescribed time has elapsed he will be barred by an exception. This is stated in a Constitution of the Emperors Severus and Antoninus. 7Where anyone, by reason of illness or any other necessity (for instance, on account of the dangers of the sea, or the severity of the winter, or the attacks of robbers, or any other similar impediment), is not able to appear within the prescribed time, indulgence should be granted him, since his good faith is sufficiently established by natural justice; as the Constitution of the Emperors Severus and Antoninus sets forth. 8Again, it should be remembered that it is not sufficient for the guardian to merely appear in court, but he is required to give evidence with reference to the reason for which he asks his discharge, and if he has several reasons to advance which may facilitate it, he must enumerate them all; and if he does not do so, he will resemble a party who has never appeared, or if he did appear, did not show good cause for his discharge. 9The fifty days aforesaid are reckoned continuously, beginning from the time of notice served upon the party who was appointed. 10It is necessary for the reasons for discharge to be presented orally in court, or by a petition. The party can also reduce his reasons to writing, as the same Emperors declare. 11These are the rules having reference to the time prescribed by law which must be obeyed. Now let us consider those who are not required to comply with these rules. 12Guardians who have not been legally appointed (that is to say, who have been appointed by parties who have no right to do so; or where they were not eligible; or where the wards were responsible for the illegality; or in case the proper legal formalities were not observed), and were not confirmed, and did not administer the trust, will be discharged, and no one can raise the objection that they did not, in their application to be excused, observe the time prescribed by law; for they are not required to make such application, as is proved by the constitutions hereinafter mentioned, which I have submitted by way of example, and which, indeed, are applicable to all cases. “The Divine Severus and Antoninus, Emperors, to Narcissus: Having been appointed guardian by the maternal grandfather of the ward, you are not required to make application to be excused, for you are not legally liable, and therefore if you do not interfere in the administration of the estate you will be secure.” Again, in like manner, where magistrates appoint a guardian or a curator who is not subject to their jurisdiction, he will not be required to observe the time prescribed by law, inasmuch as he is neither a citizen, nor a resident of the town.

The Same, Excuses, Book V. Those who are not of Consular or Senatorial dignity can be appointed guardians for persons of that rank; just as persons of Consular or Senatorial dignity can be appointed for those who are not of that rank.

The Same, Excuses, Book V. Where, in matters relating to the excuses of guardians and curators, reference is had to a freedman, it must be noted that not only the freedman of the father of the ward, but also the freedman of his mother, is understood. 1And since we are discussing the children of a patron, it must be noted that this term is not only applicable to descendants in the first degree; that is to say, to sons and daughters, but also to grandchildren on both sides, as well as to those who succeed to them. 2And even though a freedman may obtain the right to wear a gold ring, he still retains the rank of freedman, in accordance with what was decreed by Marcus Antoninus. 3Where a slave purchases himself with his own money, and is manumitted, he shall never be included among other freedmen. 4Where there are several freedmen, one shall be appointed guardian for all the children of his patron, and he shall not be discharged even if he is already administering three guardianships.

Modestinus, Excuses, Book VI. Where guardians or curators have been appointed, they are forbidden to rent any property belonging to the Emperor before they have rendered their accounts. And if anyone, concealing the fact, should appear for the purpose of renting lands belonging to the Emperor, he shall be punished as a forger. This decision the Emperor Severus also sanctioned. 1As a result of this, persons who are administering a guardianship or a curatorship are forbidden to rent anything from the Treasury.

Modestinus, Excuses, Book VI. In order that we may not leave anything having reference to the confirmation of guardians undiscussed, we will make a few observations on this subject. 1Certain guardians are properly appointed by will, that is to say, where this is done by those who have a right to do so and for those who must accept them, and in the manner and at the place where this should be done. A father can lawfully appoint a guardian for his children or his grandchildren who are under his control, but he must do this by will. Where, however, a person makes the appointment who cannot do so, as for instance, a mother, a patron, or a stranger, or where a guardian is appointed for anyone illegally; for example, when a father appoints a guardian for his son or daughter who is not under his control, or if he should say: “I request you to take charge of the affairs of my son”, or if he should appoint a guardian or curator by a codicil which is not confirmed by a will; in these instances, the Imperial Constitutions permit anything that may be lacking to be supplied by the consular authorities, and the guardians to be confirmed in accordance with the intention of the testator. 2And if, indeed, the father should appoint a guardian without making any complete and thorough investigation as to his character and qualifications, he shall be confirmed without ceremony. Where, however, anyone else appoints one, inquiry shall be made whether he is fit for the place. 3It is also necessary to know that, while a curator cannot legally be appointed by will, still, if he is appointed, it is customary for him to be confirmed.

The Same, Excuses, Book VI. An eunuch can also be appointed a guardian, and he cannot allege his infirmity as an excuse, as is set forth in a Constitution of the Emperors Severus and Antoninus. 1He who has promised to act as guardian of the children of anyone cannot be excused from guardianship, even though he would otherwise have a lawful reason for his discharge. 2It must be remembered that occupancy of an office is not a reasonable excuse for anyone. Wherefore, if a party is a Senator, he can be a guardian of persons of inferior rank, as well as of the children of a Senator, as the Divine Marcus and Commodus stated in a Rescript. 3Where, however, anyone is the guardian or curator of a ward who is not of Senatorial or other distinguished rank, and he afterwards becomes a Senator, he shall be instantly discharged. His discharge, however, will not take place where the children whose guardianship or curatorship he is administering are of Senatorial rank. 4In like manner, anyone who is of inferior rank shall not be excused from the guardianship or curatorship of wards occupying a higher position than himself. 5The Constitutions of the Emperors state that neither weighers nor accountants (whom we usually designate as arithmeticians), are entitled to exemption. 6Moreover, Jews can be guardians of wards who are not Hebrews, just as they can administer property belonging to other trusts; for the constitutions prescribe that they shall remain unmolested, except under circumstances where the public worship may be contaminated. 7An account due to a municipality is not classed as a single guardianship in an application for exemption. 8The freedmen of the wives of Senators are not released from the duties of guardianship, even though they may transact the business of their patronesses; for this privilege is only conceded to the freedmen of males of Senatorial rank. 9If the Governor of a city, that is a magistrate, incurs the responsibility of guardianship through an appointment, he cannot include this with other guardianships for the purpose of being released; just as the sureties of a guardian, or those who are appointed honorary guardians by will, are not allowed to do so. 10He who collects taxes for the State shall not be excused from curatorship. 11It has been asked if a person who is able to advance several reasons why he should be discharged, any one of which is not sufficient of itself, can be excused. For instance, where a man has not reached the age of seventy years, and is not administering three guardianships, and has not five children, or cannot allege any other lawful reason to be discharged, but is administering two guardianships, has two children, and is sixty years old; or where he gives several other reasons which, of themselves, do not afford absolute cause for relief, but which altogether would appear to be sufficient to enable him to be excused, it has been held that he cannot be discharged. 12Where a person receives, or is entitled to exemption from civil or public employment, he will not, for this reason, be excused from guardianship or curatorship. 13Where anyone has been discharged from guardianship or curatorship, he can, under no circumstances, make use of the causes set forth in the documents to obtain a discharge from another guardianship or curatorship, if he does not advance other reasons for said discharge. 14Anyone who states that he was not known to the father or mother of the ward shall not be excused on that account. 15Moreover, where anyone has the administration of three guardianships or curatorships, he has no right to be excused from the administration of a fourth; for instance, if he has manifested a desire to accept it. A guardian, however, is only held to have manifested such a desire, who manages a moderate estate. 16Ulpianus states in his work on Exceptions, that where a party is administering as one of three guardianships, that of his emancipated son: “I know that a doubt has arisen as to whether this can be asserted in his favor where he applies to be excused from a fourth.” I find, however, that a Rescript exists where the guardianship of an emancipated daughter is allowed to be included among other guardianships for this purpose. 17Where anyone under paternal control is appointed a guardian, and his father refuses to become his surety, the laws direct that the father himself shall be made guardian, and that the security of the guardianship shall in no way be interfered with, as is stated in a Constitution of the Divine Hadrian, which is as follows: “The Emperor Hadrian to Bitrasius Pollio, Deputy at Lyons. If Claudius Macer, although he is a son under paternal control, appears to be a suitable person to be a guardian, and his father is unwilling to provide security for him, in order that he may deprive his son of the guardianship, and he continues to display this perfidious spirit, I think that you can properly counteract this fraud by compelling both his son and himself to administer the guardianship of the children of Clement.”