legislation of Augustus-entitled the lex Julia et Papia Poppaa, followed up by a constitution of Severus-fathers, both natural and adoptive, were compellable by the magistrate to find a fitting marriage for their daughters, and to provide them with an amount of dower proportioned to their own estate, and to the circumstances of the case. § 4-Guardians and Trustees in Guardianship. The subject of guardianship only belongs to the topic of the family, strictly so called, so far as the institution of the tutor or guardian to the person of the minor-and the curator-or managing trustee, may be treated as supplying the temporary defects in the composition of the family occasioned through death, immature age, or physical calamity, and as a means by which the final purposes of the family as a social group were carried to completion. It will be convenient to distribute the topic of guardianship generally, under the following heads : (1) Nature and purpose of the institution of guardianship. (2) Modes of appointment of guardians to those under age, and of trustees in guardianship to other persons. (3) Rights, duties, responsibilities, and liabilities of guardians. (1) NATURE AND PURPOSE OF THE INSTITUTION OF GUARDIANSHIP. Where, through the death of his father or other person in whose power he was, a citizen became his own master (sui juris) but was below the age of fourteen years, or, if a woman, at any age, a substitute for the deceased head of a household was temporarily provided, both to protect the interests of the youthful or incompetent person, and to guard the public against the consequences which might follow from want of judgment and experience. The office of guardian, so introduced, was regarded as a service of public moment, and not of mere private convenience or arrangement. It was imposed on certain classes of persons, or on certain individual persons, as a public burden or duty to be rendered to the State, which, in default of certain well-recognized grounds of exemption, could not be evaded, nor shifted to the shoulders of another. The severity of these principles, indeed, only applied to the guardians of those under age, or of women, though it is uncertain how long, or to what extent the guardianship of women existed. For persons between the ages of fourteen and twenty-five a laxer form of guardianship (curatela) was occasionally, though in accordance with strict rules, provided for the protection and management of their property; and it was the same in character, as in name, as that by which the interests of the insane and insolvents were guarded against prejudice and loss. The guardian of those under age differed from all other classes of guardians, not only in the fact that such an official was universally appointed, but also in the significant circumstance that he controlled the whole life of his ward in addition to managing his estate and property. In the case of all classes of guardians the most rigid securities were taken, both at the time of their entering on the discharge of their functions and on their being released from it, for their faithful execution of the task entrusted to them. They were appointed by methods supposed to imply the highest amount of circumspection and caution; they were subject at every point and turn to magisterial control and, if necessary, intervention; they were bound, on surrendering their post, to present strict accounts, and to make good all deficiencies. Effective judicial remedies and special processes were in vogue for attaining these ends. (2) MODES OF APPOINTMENT. The history of the appointment of guardians follows very closely that of the history of Intestate and Testa mentary Succession. Indeed, from a time probably preceding that of the XII. Tables, a fixed notion prevailed that, on the one hand, the best and most natural guardian of the young orphan was the person who was most concerned in maintaining the integrity of the property, because he was the next successor to it; and on the other hand, that the claims on the part of a father to determine by Will who should succeed to his estate supplied at once a precedent and a reason for permitting him to determine the guardian of his children. The modes of attaining to the office of guardians in Justinian's time were threefold: (a) by testamentary disposition (tutor testamentarius); (b) by propinquity of relationship as ascertained by law (tutor legitimus); (c) by the appointment of a magistrate (tutor Atilianus or dativus). (a) It was the oldest parental right, as guaranteed by the XII. Tables, for the head of a family to nominate a guardian to the sons under age, and to the unmarried daughters of any age, whom his death might liberate from parental control; or to posthumous children who would have come under that control, had their father lived. There was no restriction as to the quality of the person who might be selected for the office in the exercise of parental discretion; and as the office was a public service, and not a mere private arrangement, even persons in the control of another might be nominated, as also might magistrates, Prætors, consuls, persons at the time of appointment incapacitated by reason of age or physical infirmity, or by the non-fulfilment of conditions to be satisfied, it may be, at a period later than that of the testator's death. For intervals of time not provided for, a special and temporary appointment was made by the magistrate. Generally speaking, the guardian appointed by a parental Will was exempted from the necessity of undergoing judicial scrutiny, and of giving the security imposed in other cases; unless, indeed, since the making of the Will, fresh circumstances had supervened by which, owing to the impoverishment of the guardian, or a disclosure of his previously bad character, or of the bad terms which had existed between him and the testator, the interests of the ward might seem to be prejudiced. In the case of a father or mother providing by will for their natural children, either of them could in the same way nominate a guardian, whose appointment, however, required confir- L. 4 (v. 29). mation at the hands of the magistrate. (b) It has already been noticed that it was a fixed principle at all periods that the proper guardian of a person under age was the one who was most directly interested in the protection of his estate, in consequence of being marked out by law as the next successor to it. According to modern ideas, some suspicion pointing to the possibility of what is known in English law as "constructive fraud" would seem to attach to the person who would presumably derive most benefit from certain kinds of misfortune befalling the ward. But the interest in the wellbeing of the bulk of the estate was supposed likely to predominate in the generality of cases, and consequently the Agnates first, and, on their failing, the Gentiles (or members of the clan), were designated by the XII. Tables as succeeding to the rights of guardianship as well as to the rights of inheritance. Where there were several Agnates equally near, they were all guardians, but the management was entrusted to one. The same principle of assigning the rights of guardianship to the person or persons who inherited from the ward on an intestate succession, was preserved in the latest legislation of Justinian, when, in his 118th Novell, he reconstituted, for the use of members of the Christian Church, the whole law of intestate succession. In this Novell, he announced broadly that the office of guardianship was to be undertaken by any one who was in the next order of succession to the inheritance, no distinction being made between "Agnates and Cognates." Women were indeed prohibited by the same law from undertaking the office of guardian, except in the case of the mother and the grandmother, who, if they abstained from Nov. (cxviii. 5). a second marriage, would be preferred to all other candidates for the guardianship of children, with the sole exception of those nominated by Will. One species of the legitimate guardianship was called fiduciary. This name, in Justinian's legislation, meant the guardianship which befell the sons of a deceased emancipating father or master as exercised over previously emancipated children or slaves. In Gaius' time, the term fiduciary signified the guardian, who became such through the mere accident of the fictitious legal process which, on a father's three times selling his son in order to emancipate him, required a stranger at last to do the final emancipating act, and so to constitute himself, at least for the Gaius (i. 166). moment, a fiduciary guardian. Where, under Ulp. (xi. 5). the older law, a "legitimate" guardianship was transferred by the fictitious confession of judgment (in jure cessio), the new guardian was called the cessicius tutor. (c) The first provision made for the appointment of guardians in default of a nomination by Will, or through intestate succession, was made by the lex Atilia, from which, in spite of its repeated amendments and amplifications, the name of Atilianus tutor, as well as that of dativus tutor, was given to all guardians appointed in this way. The appointment by Will might be insufficient or unsatisfactory, owing to the temporary interposition of a condition, or through some accident which might befall a guardian originally appointed, or through some incapacity which time and later events alone could disclose. Justinian, following the policy adopted by his predecessors in view of the extension of the empire, enacted that, whereas generally the appointment of guardians belonged, at Rome, to the præfect of the city or a Prætor, and in the provinces to the presidents or pro-consuls, or their legates, the ordinary municipal magistrates should henceforth appoint to the D. (xxvi. 5). L. 30, C. (i. 4). office, in all cases where the means of the ward did not exceed five hundred solidi (that is, say about four hundred pounds sterling). Besides these municipal magistrates, certain other special officials |