Failing every other kind of guardian, at Rome one used to be appointed under the lex Atilia by the praetor of the city and the majority of the tribunes of the people; in the provinces one was appointed under the lex Iulia et Titia by the president of the province.
1 Again, on the appointment of a testamentary guardian subject to a condition, or on an appointment limited to take effect after a certain time, a substitute could be appointed under these statutes during the pendency of the condition, or until the expiration of the term: and even if no condition was attached to the appointment of a testamentary guardian, a temporary guardian could be obtained under these statutes until the succession had vested. In all these cases the office of the guardian so appointed determined as soon as the condition was fulfilled, or the term expired, or the succession vested in the heir.
2 On the capture of a guardian by the enemy, the same statutes regulated the appointment of a substitute, who continued in office until the return of the captive; for if he returned, he recovered the guardianship by the law of postliminium.
3 But guardians have now ceased to be appointed under these statutes, the place of the magistrates directed by them to appoint being taken, first, by the consuls, who began to appoint guardians to pupils of either sex after inquiry into the case, and then by the praetors, who were substituted for the consuls by the imperial constitutions; for these statutes contained no provisions as to security to be taken from guardians for the safety of their pupils' property, or compelling them to accept the office in case of disinclination.
4 Under the present law, guardians are appointed at Rome by the prefect of the city, and by the praetor when the case falls within his jurisdiction; in the provinces they are appointed, after inquiry, by the governor, or by inferior magistrates at the latter's behest if the pupil's property is of no great value.
5 By our constitution, however, we have done away with all difficulties of this kind relating to the appointing person, and dispensed with the necessity of waiting for an order from the governor, by enacting that if the property of the pupil or adult does not exceed five hundred solidi, guardians or curators shall be appointed by the officers known as defenders of the city, along with the holy bishop of the place, or in the presence of other public persons, or by the magistrates, or by the judge of the city of Alexandria; security being given in the amounts required by the constitution, and those who take it being responsible if it be insufficient.
6 The wardship of children below the age of puberty is in accordance with the law of nature, which prescribes that persons of immature years shall be under another's guidance and control.
7 As guardians have the management of their pupils' business, they are liable to be sued on account of their administration as soon as the pupil attains the age of puberty.