De Petendo Alio Tvtore, De Atiliano Tvtore, Et Eo Qvi Ex Lege Ivlia Et Titia Datvr. (2)

§ 185. Failing every other form of guardian, at Rome a guardian is appointed under the lex Atilia by the praetor of the city and the major part of the tribunes of the people, called an Atilian guardian: in the provinces, a guardian is appointed by the president of the province under the lex Julia and Titia.

§ 186. Accordingly, on the appointment of a testamentary guardian subject to a condition, or on an appointment which is not to commence till after a certain time, during the pendency of the condition and before the time has come, a substitute is appointed by these magistrates; also, when the appointment of a testamentary guardian is not subject to a condition, so long as no heir has entered under the will, a temporary guardian may be obtained under those statutes, whose office will determine as soon as the guardian becomes entitled under the will.

§ 187. On the hostile capture of a guardian the same statutes regulate the appointment of a substitute to continue in office until the return of the captive; for if the captive returns he recovers the guardianship in virtue of his rehabilitation.

The foregoing statement shows the various forms of guardian: the question of the number of orders to which these forms may be reduced involves a long discussion, for it is a point on which the ancient jurists differed greatly; and as I have examined it at length, both in my interpretation of the edict and in my commentary on Quintus Mucius, for the present occasion it may suffice to observe that some, as Quintus Mucius, make five orders; others, as Servius Sulpicius, three; others, as Labeo, two; others make as many orders as there are forms of guardian.

In the time of Justinian there were three forms of guardian,—testamentary, or appointed by will; statutory, or prescribed by the law in case of intestacy; and magisterial (dativus), or appointed by the magistrate, in default of a testamentary or statutory guardian. The other forms of guardian had become obsolete, except a kind of fiduciary one, Inst. 1, 19, in consequence of the change in legislation.

For an account of Q. Mucius Scaevola (Consul b. c. 95) and Servius Sulpicius Rufus (Consul b. c. 51), who may be regarded as the fathers of Roman jurisprudence, see Roby, Intr. to Justinian’s Digest, pp. cvi and cxi.