puberty, does not necessarily belong to their manumitter, but on whoever before manumission was their quiritary owner. Accordingly, a female slave belonging to you as quiritary owner, to me as bonitary owner, if manumitted by me without your joining in the manumission, becomes a Latin, and her property belongs to me, but her guardianship to you, by the enactment of the lex Junia. If the slave is made a Latin by one who combines the character of bonitary and quiritary owner, both her effects, and the guardianship of her, belong to one and the same person.
§ 164 a. As in default of agnates the inheritance by the law of the Twelve Tables devolved on the gens it may be inferred by the reasoning adopted in § 165 that the guardianship passed to it also. So it is probable that at the beginning of the lacuna Gaius made mention of the statutory guardianship of the Gentiles, and that this is the passage on the subject referred to in 3, 17. As to the nature of the gens, see Introduction.
§ 166 a. Cf. §§ 115, 175, 195 a.
§ 167. It seems anomalous that a Latin, i.e. a non-civis, should have been a subject of wardship: for as tutela is an institute of jus civile (§§ 142, comm., 189), i.e. jus civium, we should have expected that, as in the case of patria potestas, both pater and filius must be cives Romani, § 128, so here both parties, the ward as well as the guardian, must of necessity be cives Romani. The anomaly, however, was expressly enacted by the lex Junia: which further departed from the law of the Twelve Tables by separating the guardianship from the right of succession; for it gave the guardianship to the person who before the manumission had been quiritary owner, but the right of succession to the person who had previously been bonitary owner. Latinus was not only capable of being a ward, but also of being a guardian, Fragmenta Vaticana, 193; that is, though he was incapable of being a testamentary guardian, § 23, he could, it would seem, be made a tutor dativus, that is, appointed by a magistrate, § 185.
DE CESSICIA TVTELA.
§ 168. Statutory guardians, whether agnates or patrons, and manumitters of free persons, are permitted to transfer the guardianship of a female ward by surrender before a magistrate; the guardianship of a male ward is not allowed to be transferred, because it is not considered onerous, being terminated by the ward’s attaining the age of puberty.
§ 169. The surrenderee of a guardianship is called a cessionary guardian.
§ 170. On his death or loss of status the guardianship reverts to the surrenderor, and on the surrenderor’s death or loss of status it is devested from the cessionary and reverts to the person entitled after the surrenderor.
§ 171. As far, however, as agnates are concerned, in the present day there is no such thing as cessionary guardianship, for agnatic guardianship over female wards was abolished by the lex Claudia.
§ 172. Fiduciary guardians, according to some, are also disabled from transferring their guardianship, having voluntarily undertaken the burden; but although this is the better opinion, yet a parent who has mancipated a daughter, granddaughter, or great-granddaughter, with a condition of remancipation to himself, and manumitted her after remancipation, should be excepted from the rule, for he is ranked with statutory guardians, and has the same privilege as the patron of a manumitted slave.
§ 168. In later Roman law, when the interest of the ward and not that of the agnates was principally regarded, guardianship became inalienable. Similarly in English jurisprudence guardianship is said not to be capable of assignment or transfer, because it is not a right but a duty.
DE PETENDO ALIO TVTORE.
§ 173. Moreover, a decree of the senate permits female wards to demand a substitute in the place of an absent guardian, who is thus superseded: and the distance of his residence from her domicil [provided it amounts to absence] is immaterial.
§ 174. But an exception is made in favour of an absent patron, who cannot be superseded on the application of a freedwoman.
§ 175. Ranked with patrons is the parent who by mancipation, remancipation, and manumission of a daughter, granddaughter, or great-granddaughter, has become her statutory guardian. His sons only rank as fiduciary guardians, unlike a patron’s sons, who succeed to the same form of guardianship as vested in their father.
§ 176. For a special and limited purpose the senate permits even the place of a patron in his absence to be filled by a substitute; for instance, to authorize the acceptance of an inheritance.
§ 177. The senatusconsult gives similar permission when a patron’s son is himself a ward.
§ 178. For likewise the lex Julia, regulating the marriages of the various orders, permitted a woman whose statutory guardian was himself a ward to apply to the praetor of the city to appoint a guardian for the purpose of constituting her dower.
§ 179. For a patron’s son even before the age of puberty is a freedwoman’s guardian, although unable to authorize any proceeding, being himself disabled from acting without his guardian’s authorization.
§ 180. Also a woman whose statutory guardian is a lunatic or dumb is permitted by the senatusconsult, for the purpose of settling her dower, to apply for a substitutive guardian.
§ 181. In which cases the continued guardianship of the patron or patron’s son is undisputed.
§ 182. The senate further decreed that if the guardian of a male or female ward is suspected of misconduct and removed from office, or if he alleges valid grounds for declining to act and is relieved of his functions, a substitute shall be appointed by the magistrate, and on his appointment the office of the former guardian shall determine.
§ 183. These rules are in force both in Rome and in the provinces, but in Rome application for the appointment of a tutor must be made to the praetor; in the provinces, to the governor of the province.
§ 184. During the era of litigation by statute-process [4, § 10], another cause of appointing a substitute was the imminence of statute-process between the guardian and the woman or ward; for as the guardian could not give his authority in respect of his own suit, another guardian was appointed to authorize the proceedings in the action, who was called a praetorian guardian, because he was appointed by the praetor of the city. But some hold that since the abolition of statute-process this mode of appointing a guardian ceased to be used, others maintain that it is still the practice on the occasion of a statutory suit (4, § 103).
§ 173. Cf. Ulp. 11, 22. The name and date of this senatusconsultum cannot be ascertained.
§ 178. Gaius, as already stated, wrote a special treatise or commentary on this important law relating to marriage.
§ 179. The law was changed by Justinian, who enacted that no one could become guardian who had not attained his majority, i. e. completed twenty-five years of age, Inst. 1, 25, 13; Cod. 5, 30, 5. The fact of not having attained this age had previously been ground of excuse.
§ 182. Cf. Inst. Just. 1, 26. The actio suspecti tutoris for the removal of the guardian from his office could be maintained by any person in the interest of the ward. If removed on account of fraud the guardian was infamis, but not so if it was simply for negligence.
§ 183. The ambiguity of the Latin language leaves it doubtful whether in the foregoing paragraphs, §§ 173, 176, 180, 182, Gaius refers to one or several senatusconsults. From Dig. 26, 1, 17, however, it appears
