A Mothers andtutela (guardianship') in Roman law

1 The obligation to request a guardian

If the mother of a minor child were still alive, she would probably undertake the care and upbringing of the child herself, but in classical law she was not supposed to serve as his offi­cial tutor [see Part II.A.3 below], and she was required by Roman law to see that a male guardian was appointed.

If she did not ask for a guardian to be appointed, a mother would forfeit the right to inherit from her child granted to women with the ius liberorum by the s.c. Tertullianum enacted under Hadrian.⁴⁷ A treatise by the jurist Modestinus on those who can be excused from the duty of serving as a minor's guardian (which was regarded as burdensome) cites a letter (epis­tula) of the emperor Septimius Severus (reigned 193-211) to this effect. (Modestinus' treatise was written in Greek, and the Digest excerpt is in Greek, except for the quote from Severus' letter, which is cited in the original Latin.)

D.26.6.2.2 (Modestinus): The things said about a mother are shown in an epistula of Severus, as the words have been appended below: “The deified Severus to Cuspius Rufinus: I wish it to be clear to all that I direct my whole consideration to coming to the aid of fatherless minors (pupilli), since it pertains to the public welfare.

D.38.17.2.28 (Ulpian): Moreover, she is punished for not requesting (a tutor) for her sons, and undoubtedly for her daughters. What about for her grandchildren? Similarly, she is punished for not requesting.

This applied to mothers with Roman citizenship both in Rome and in the provinces. Exceptions might be made if the fatherless child had not inherited any property that needed protection, or if the mother were very young:

D.38.17.2.23 (Ulpian): [the beginning of the passage is omitted here.] But from whom does she “not request”? Indeed, the constitution (of Septimius Severus) says from the praetor (of Rome): but I think the law has application even in the provinces, even if she does not request (a guardian) from munic­ipal officials, since the necessity of giving (guardians) is associated also with municipal magistrates.

D.38.17.2.26 (Ulpian): But if she does not request (a tutor) for completely destitute children, she ought to be pardoned.

size=2 color=black face="Times New Roman">D.38.17.2.45 (Ulpian): I think that also, if a mother has not requested a tutor for one who will not be able to discharge his debts, she should be pardoned. For she took thought for his interests, so that he would be less troubled (by creditors taking legal proceedings against him) as someone who was without a defense.

Cod. Just. 2.34.2, 3 March, 294

Emperors Diocletian and Maximian and the Caesars to Procula:

Though it is agreed that no one is excused by reason of age in the case of delicts,⁴⁸ however, it is not at all fitting that a mother who erred due to the slipperiness of her age and did not request a tutor for her children be denied to succeed to them, since this only applies in the case of mothers who are of the age of majority.⁴⁹ The fifth day before the Nones of March in the consul­ship of the Caesars.

Sometimes mothers did request a guardian, only to find that circumstances beyond their control prevented him from serving.

Cod. Just. 5.31.3, 12 July, 215

Emperor Antoninus (Caracalla) Augustus to Atalanta:

Make application from the relevant official for another suitable guardian to be given to your children from the same province in place of the guardian who died or was sent into perpetual exile. He (the official) will see to their advantage according to his own duty. Posted on the fourth day before the Ides of July in the second consulship of Laetus and the consulship of Cerealis.

Cod. Just. 5.31.8, 11 March, 291

Emperors Diocletian and Maximian Augusti to Musicus:

Since the careful duty of seeking a guardian is demanded from mothers, random accidents are not regarded as impediments. You declare that the procurator, who had been appointed by a mother for seeking a guardian for a fatherless minor, was killed by bandits and that her petition was delayed by necessity. It is very hard that a mother, in whom, you assert, no moral defect was present, be rejected from succession to the inheritance. Posted on the fifth day before the Ides of March in the consulship of Tiberianus and Dion.

The mother about whom Musicus wrote to the emperors had appointed a legal representa­tive (procurator) to bring her request for a guardian for her child. The procurator had been murdered by bandits, and the petition was evidently not delivered and approved before the child died. The emperors appear sympathetic, but state the rule firmly.

If a child's mother did not request a tutor, others might do so:⁵⁰

Cod. Just. 5.31.10, 30 April, 294

Emperors Diocletian and Maximian Augusti and the Caesars to Priscus:

If their mother does not fulfill the duty she owes in requesting guardians for your brother’s grandchildren, you are able to make a formal request for guardians. Subscribed at Sirmium on the day before the Kalends of May in the consulship of the Caesars.

Cod. Just. 5.34.6, 30 April, 293

Emperors Diocletian and Maximian Augusti and the Caesars to Leontius:

In regard to the fact that you say their mother was not willing to request tutors for her children, concerning this matter approach the governor of the province, since, if he has determined that she neglected (to do this), even the magistrate himself is not prohibited from giving tutors or from submitting names, so that they can be assigned by the decree itself.⁵¹ Posted on the day before the Kalends of May in the consulship of the Augusti.

Constantine allowed mothers whose children had died after reaching puberty to inherit from them even if they had neglected to appoint a tutor whenthechildwas below puberty. ⁵² There was some legal precedent for this [D.38.17.2.29 (Ulpian); Chiusi 1994,159-63], and it may already have been the practice [Beaucamp 1990,317]:

Cod. Just. 6.56.3, 27 July, 318

Emperor Constantine Augustus to Catullinus, proconsul of Africa:

It is certain that mothers, who have lost children⁵³ past puberty, though they did not request guardians for them when they were minors, ought not at all to be prevented by the objection of “guardian not requested” for the purpose of excluding them from succession to them (their children).

Alaw of the eastern emperor Theodosius II repealed an earlier law that had said that a mother who had not petitioned for a guardian for her minor children was to die intestate — that is, as if she herselfhad not made a will. This law (said by the early sixth-century Interpretation of Novel 11 to have been in the Theodosian Code) is no longer extant, but may have been Cod. Theod. 3.18.2, which is not preserved [Chiusi 1994, 161]. While describing the law he repeals as punishing mothers too harshly, Theodosius II repeated that those who failed to have a guardian appointed for a minor were banned from succession upon the child's death.⁵⁵ He also repeated his grandfa­ther's rule that a widow who remarried could not undertake the legal guardianship of her childrenbyherfirsthusband[Cod. Theod. 3.17.4;seePartII.A.3 below].

Novel 11 of Theodosius II, 10 July, 439

Emperors Theodosius and Valentinian Augusti to Florentius, praetorian prefect:

In all things moderation is desired, especially in the laws, through which it is fitting that offenders be corrected according to the nature of their crimes. For that which exceeds the limit of correction is not useful nor should it be observed by judges. Thus, we decree that the constitution, which ordered that mothers, who do not seek legal protection for their pupilli or minors⁵⁶ or make an inventory of the possessions left (by their deceased children), die (as if) intestate, is to become obsolescent, seeing that it is harsh and punishes mothers with an immoderate penalty.

(1) But in order that we not appear to promise impunity to offenders by cutting back superfluous or inhumane measures, we have decided that the advantages of pupilli must be provided for by this most salutary law.

(2)We wish the same to be observed also if the mother, having under­taken the legal guardianship of her children, has aspired to a second marriage against the oath which she offered, before she had another tutor appointed for him and performed what she owed to him from the accounts of a guardianship that had been administered.

(3) But if, contrary to the authority of this law, before she has completed these things, she has believed that she should be joined to a second husband, her husband's goods also shall be held liable by right of security to the accounts of the previous guardianship, Florentius, dearest and most loving parent. (4) And so your illustrious and magnificent authority shall enjoin, by the posting of edicts, that this law, which will endure forever, is observed by all. Given at Constantinople on the sixth day before the Ides of July in the seventeenth consulship of Our Lord Theodosius Augustus and the consulship of Festus, a man of senatorial rank (v.c.).⁵⁷

In 479, the eastern emperor Zeno extended the requirement that mothers have tutors appointed for their fatherless children to apply to illegitimate children as well [Cod. Just. 5.31.11].

2    Guarding th^e guardians

A mother was supposed not only to request the appointment of a tutor, but to see that he exercised the guardianship responsibly and honorably. Otherwise she would lose her right to inherit from her children if they died intestate [see Part II.A.1 above]:

D.38.17.2.34 (Ulpian): What if she requested unworthy men, that is, less suitable for guardianship, since she knew that the praetor would not appoint them? But what if the praetor did appoint them, following the mother's request? Indeed, it is the fault of the praetor, but we also punish the mother's plan.

D.38.17.2.42 (Ulpian): What if she did not compel them (the tutors) to be involved in the guardianship? And since we desire a complete duty from the mother, she ought to take care of these things also, lest they stand in her way in regard to the inheritance.

In general, women were legally incapable of bring an action on behalf of others [Chapter 1, Part V.A.1], but exception was made when the guardians of an underage relative were believed to be fraudulent or untrustworthy. A legal action against untrustworthy guardians (crimen suspecti tutoris or de suspectis tutoribus) could be brought during the period of guardian­ship, with the purpose of removing the tutor from responsibility, and (if actual fraud rather than incompetence or negligence could be shown) penalizing him with the legal brand of infamia. If the guardianship had already ended, an action on the conduct of the guardianship (actio tutelae) could be brought, the penalty for which was also infamia [Buckland 1963, 160—5]. The possibility of legal action, and the apparent frequency of cases against negligent or fraudulent guardians, no doubt served to keep tutores honest and cautious, and to deter some from undertaking the guardianship [Saller 1994, 198—200].

In the case of actio tutelae, the most suitable person to bring charges would be the former ward, now of an age to act legally for himself or herself. But the action de suspectis tutoribus was open to any woman who could claim to be motivated by the sense of duty (pietas) to kin, though she should not violate her “sense of shame” [see Chapter 1, Part IV.B] by being over­bold or aggressive. The following is from Ulpian’s commentary on the Praetor's Edict:

D.26.10.1.6 (Ulpian): It is fitting to see who can bring charges against untrustworthy guardians; and it should be known that this action is, as it were, a public action, that is, it lies open to all. 7: But indeed, even women are allowed (to prosecute untrustworthy guardians), but only those women, who come to this course of action led by the sense of duty owed to kin, as for instance, a mother. A nurse also and a grandmother can bring charges. Even a sister can, for there is a rescript of the deified (Septimius) Severus regarding a sister. And if there is any other woman, whose well-considered sense of duty (pietas) the praetor has understood (to be that) of a woman who does not go beyond her sense of shame (verecundia) for her sex, but, induced by her sense of duty, is not able to keep to herself the injury done to the minor, he will allow her to bring an accusation.

Cod. Just. 5.43.1, 13 August, 212

Emperor Antoninus (Caracalla) Augustus to Domitia:

You can make an accusation of “untrustworthy guardian” against your freedman and the guardian of your son, if you think that he is administering his (the son’s) property in a fraudulent manner, only if his term of duty (as guardian) has not ended with the puberty of his ward. For if he has legally ceased to be guardian, he must be brought to trial in a judgment on the guardianship. Posted on the Ides of August in the consulship of the two Aspers.

Cod. Just. 5.43.3, 13 January, 229

Emperor Alexander (Severus) Augustus to Fortunata:

The governor of the province will force the guardians of your children to acknowledge their duty of administration in every way, after more severe remedies have been applied. But if they persevere in the same obstinate disobedience, you are not prevented from bringing an accusation of “untrustworthy guardians,” so that others may be sought in their place. Posted on the Ides of January in the third consulship of Alexander Augustus and the consulship of Dio.

On the other hand, mothers were not positively required to bring charges against guardians, as this was really a “man’s job:”

D.26.6.4.4 (Tryphoninus): She who did not bring a charge of untrust­worthy guardian, does not incur a penalty either by the words or the opinion of the constitution,⁵⁸ because it is the characteristic of a masculine mind to judge and evaluate deeds of this sort and a mother is able to be ignorant even of (a guardian’s) crimes, and it is enough for her to have requested such a guardian as appeared suitable when an investigation was made by the praetor. And therefore also her judgment is not sufficient for choosing guardians, but an investigation is made, even if she has in her will given guardians to her own children especially for their own property.

Moreover, maternal vigilance did not extend to bringing criminal charges of forgery against their children’s legal adversaries [cf. Cod. Just. 9.22.19 in Chapter 1, Part V.A]. Defending their wards’ property and business affairs was in fact the duty of tutors and (for those above puberty) curators, as Alexander Severus reminded one mother:

Cod. Just. 9.1.5, 1 October, 222

Emperor Alexander (Severus) Augustus to Marcellina:

By a decree of the Senate it has not been permitted for a woman to prose­cute someone under the Cornelian law (on forgery), unless the matter pertains to her. Therefore, since your sons have tutors and curators, they ought to deliberate whether they should make the accusation that the docu­ments, on account of which you say your sons’ enemy has prevailed, are forgeries. Posted on the Kalends of October in the consulship of Alexander Augustus.

Sometimes exception was made if a mother acted out of her sense of duty (pietas) to appeal a judgment already made against her child:

lang=EN-US style='font-size:10.0pt;font-weight: bold'>D.49.5.1 (Ulpian): But also when a mother (who) perceived that her son’s property was destroyed by a court judgment has appealed, it should be attributed to pietas that she also ought to be heard. And if she has preferred to take charge of preparing a lawsuit, she does not appear to intercede,⁵⁹ though she is not able to defend (the case) from the beginning.

3    Mothers as guardians

In classical Roman law, women, even mothers, were not supposed to be tutors. But a number of legal passages indicate that many mothers did undertake the administration of their chil­dren’s property, and effectively served as guardian [see Chiusi 1994]. Emperors had to inform some mothers that taking on the official responsibility of their child’s guardianship was too much for the “weakness” of their sex [cf. Chapter 1, Part IV.C]:

Cod. Just. 5.35.1 and 5.31.6, 20 September, 224

The Emperor Alexander (Severus) Augustus to Otacilia:

(5.35.1) Administering a guardianship is a man’s burden, and such a duty is beyond the sex of feminine weakness.

(5.31.6) A mother’s sense of duty (pietas) is able to instruct you which tutors you ought to request for your son, but also to observe that nothing contrary to what is necessary is done concerning the boy's affairs. However, the necessity of requesting curators has not been imposed on mothers, since those who have reached puberty but are less than twenty-five ought to request curators for themselves, if their affairs require it. Posted on the tenth day before the Kalends of October in the consulship of Julianus and Crispinus.⁶⁰

Cod. Just. 2.12.18, 21 January, 294

The Emperors Diocletian and Maximian Augusti and the Caesars to Dionysia:

It is generally agreed that undertaking someone else's defense is a man's duty and beyond the womanly sex. Therefore, if your son is a fatherless minor (pupillus), request a tutor for him. Subscribed (by the emperor) on the twelfth day before the Kalends of February at Sirmium in the consulship of the Caesars.

Two passages in the Digest, attributed to second-century jurists, suggest that it was possible for a mother to receive the right to serve as her child’s guardian by imperial grant. (Both passages may have been subject to later interpolation, however.⁶¹)

D.26.1.16 pr. (Gaius): Guardianship is generally a masculine duty.

D.26.1.18 (Neratius): Women are not able to be given as guardians, since this is an obligation of males, unless they make a special request from the emperor for the guardianship of their children.

Sometimes, however, a husband would state in his will that he wished his wife to be their children’s guardian after his death. This may particularly have been the case in provinces where there was a custom of widowed mothers serving as their children’s guardians [see Part II.B below]. In the following passage, Papinian’s emphasis on “our laws” (leges nostrae} implies that those making such appointments were provincials who had recently acquired Roman citizenship and were continuing to use their native laws and customs:

D.26.2.26 pr. (Papinian): In our law, the guardianship of children held in common is entrusted to the mother in the father's will without effect. Nor, if the governor of the province had made a mistake through inexperience, and has decided that the father's wish is to be followed, shall his successor correctly follow his (predecessor's) ruling, which our laws do not accept.

Not only were some husbands in the provinces appointing their wives guardians because they did not realize it had no effect in Roman law, but some governors were also unaware of the law and were ratifying the appointment.

Papinian, who was executed by Caracalla in 212, must have written this passage before the Constitutio Antoniniana granted Roman citizenship to all provincials. But the number of passages that refer to a husband’s entrusting of the administration of his children’s property to their mother suggests that this was a phenomenon known in Italy as well as in the provinces:

D.38.17.2.25 (Ulpian): What if the father had prohibited that a tutor be requested, since he wanted their (the children’s) property to be administered through the mother? She will fall under the penalty⁶² if she does not request (a guardian) or administer the guardianship legitimately.

D.26.7.5.8 (Ulpian): Papinian writes the following in the fifth book of his Responses: A father entrusted the guardianship of his children to be carried on by their mother’s counsel, and he released the guardians (from responsi- billity) for that reason. Therefore the duty of the guardians will be no less diminished, but it will be suitable for good men to admit the mother’s counsel in a beneficial way, though neither the guardian’s release nor the father’s wish, or the mother’s intercession, shall infringe upon the duty of the guardian.

In the following case, the husband had actually made his wife heir rather than their son, and she had assumed full responsibility for the inheritance, passing it on to the son when he reached an age old enough not to have a tutor. Because he legally did not own any property while underage, but only acquired it upon reaching puberty, his mother could be exempted from the requirement that she have a tutor appointed for him [on which see II.A.1], so the penalty decreed by Septimius Severus for mothers who failed to have tutors appointed did not apply [Chiusi 1994, 161-3, and cf. D.38.17.2.26 in II.A].

D.38.17.2.46 (Ulpian): And if by chance someone made his wife, the mother of their son held in common, heir, and asked that, having waived security (against loss) she restore the inheritance to their son when he reached puberty, and the mother did not request tutors, it ought to be said that the constitution (of Septimius Severus) does not apply, since she followed the father’s wish and did not request tutors for a son who had nothing. But if she did not waive security against loss, the opposite will be true, since indeed on account of this he ought to have tutors. [the rest of the passage is omitted here]

In the case below, a mother took full responsibility for her daughter’s inheritance (Scaevola does not say whether the father had requested this in his will) and, like the mother in the previous passage, had handed over the property to her daughter when she reached maturity. The mother’s administration of her daughter’s financial affairs does not appear to have been questioned by the bankers with whom she dealt. It was only because the daughter later complained that she had not received the money herself, that the question of responsibility arose:⁶³

D.46.3.88 (Scaevola): A mother administered the business affairs of her daughter, heir to her father who died intestate, and gave items to be sold through the bankers, and this very fact was written in the account-book. The bankers paid the entire proceeds of the sale (to the mother) and for almost nine years after the payment, whatever had to be done, the mother did in the name of the pupilla and arranged for her marriage to a husband and handed her property over to her. It was inquired, whether the girl has an action against the bankers, when she herself did not stipulate for the price of the items which were given for sale, but her mother did. He replied that if the question were whether the bankers were legally released by this payment, he responded that they were legally released. (Claudius): For this question pending from the jurisdiction underlies (the decision): whether they seem in good faith to have paid the prices for the items which they knew belonged to the pupilla, to the mother, who did not have the right of administration. And therefore, if they knew this, they are not released, to be sure, if the mother should not be able to discharge her debts.

There were certain things a mother could not do legally [see Gardner 1998, 249—50; cf. Cod. Just. 9.1.5 and D.49.5.1 in Part II.A.2]:

D.3.5.30.6 (Papinian): Though a mother may administer her son's business affairs according to the father's wish, trusting in her sense of family duty (pietas), however, she will not have the right of appointing an advocate for the sake of lawsuits at her own risk, because she herself does not correctly act in her son's name nor can she alienate his property or release one who is a debtor to the youth by accepting money.

A mother who did administer her child’s affairs instead of having a guardian appointed would herself be responsible for any mismanagement that might occur, and would need to produce her child's financial accounts when the child passed the age of guardianship:

Cod. Just. 5.45.1, (no day given) 259

Emperors Valerian and Gallienus Augusti to Marcellus:

Even women, if they have administered a pupil's affairs in place of a tutor, are bound to render an account. Posted in the consulship of Aemilianus and Bassus.

However, appointed guardians who then relinquished their authority to their wards’ mother were still considered responsible. A tutor would want to get some sort of security from the mother to guarantee that she herself would be financially liable for any mismanage­ment. Two tutors found themselves in an awkward situation when their former pupils became unhappy with the way their affairs had been managed:⁶⁴

Cod. Just. 5.46.2, 12 July, 246

size=2 color=black face="Times New Roman">Emperors Philip Augustus and Philip Caesar to Asclepiades and Menander:

You assert that certain of your pupils' affairs were administered by their mother and likewise by their paternal grandfather, and that security from loss was promised to you in their names. If this is so and the same pupils, having reached legal age, prefer to go to law not against their own mother and grandfather, but against you, not undeservedly will you desire security from the loss to be offered by those whom you claim previously undertook the administration at their own risk. Posted on the fourth day before the Ides of July in the consulship of Praesens and Albinus.

A mother who gave security that she would be responsible could not later claim the protection of the s.c. Nelleianum [see Chapter 1, Part IV.D] on the grounds that she had been interceding on behalf of someone else:

Sent. Pauli II.xi.2: A mother, who promised an indemnity on behalf of the tutors of her children, does not come under the benefit of the Senate's decree.

D.16.1.8.1 (Ulpian): If a mother has intervened as guarantor before her son's tutors, so that they do not sell his estates, and has promised an indem­nity to them, Papinian in his ninth book of Questions does not think that she has interceded. For (he says) she did not take on another's obligation either old or new, but she made this obligation her own.

But if she had not provided surety or a guarantor, she could claim the protection of the Senate’s decree and avoid liability for any losses:

Cod. Just. 4.29.6, 10 March, 228

Emperor Alexander (Severus) Augustus to Torquatus:

If a mother, when she was administering her own children's patrimony, promised security to their tutors and offered a guarantor or gave pledges, neither she nor the guarantor offered by her nor her pledged property are helped by the aid of the Senate's decree, since in a certain way she appears to have administered her own business.

(1) But if, however, when the tutor was willing to excuse himself, she interposed herself, promising an indemnity to him, she is by no means prohibited from using the aid of the Senate's decree. (2) But if indeed, she requested tutors and undertook the risk of her own accord, in so far as she is held (liable), she is protected by the law's authority. Posted on the sixth day before the Ides of October in the consulship of Modestus and Probus.

A mother who undertook administrative duties properly belonging to a tutor could be prosecuted for “unauthorized administration” (negotia gesta} or “unauthorized guardianship” (pro tutore negotia gesta):

Sent. Pauli I.iv.4: A mother, who intervened in the affairs of her own chil­dren, will be held liable to the children themselves and to the tutors for “unauthorized administration.”

But if she requested the appointment of guardians who turned out to be fraudulent, she was not legally liable for the damage, nor was she expected to provide surety for guardians who had been appointed at her request. In such cases “womanly weakness” could be an advantage:

Cod. Just. 5.46.1, 13 March, 234

Emperor Alexander (Severus) to Bruttia:

The magistrates gave the guardians which you requested at their own risk, rather than you, contrary to the condition of your sex, being bound by this obligation for anyone else because you asked for guardians to be given to your children at your risk. Posted on the third day before the Ides of March in the second consulship of Maximus and the consulship of Urbanus.

In the fourth century, imperial law allowed mothers to serve as guardians to their own children, provided they declared that they would not remarry and thereby subject their chil­dren to the hostile machinations of a stepfather. The first extant law to this effect is that of Theodosius I, who legislated extensively on the remarriage of widows [cf. Part I above]. But the book of the Theodosian Code which preserves this law has not come down to us in its orig­inal state, and it is possible that there was earlier legislation allowing widows to serve as their children’s guardian, and that Theodosius’ innovation was the restriction of this right to mothers who did not remarry [Arjava 1996, 91-2; cf. Chiusi 1994, 192-3; Gardner 1986a, 150-1]. On the other hand, in stressing that mothers do not have to serve as guardians, and that they can do so only if there is no tutor legitimus, the law appears to be explicating a new policy [Beaucamp 1990, 325-30].

The weakening and ultimate disappearance of the guardianship of women may have made the idea of a woman serving as a tutor herself more acceptable [Chiusi 1994, 191]. Note, however, that mothers can undertake the guardianship only if there is no tutor legitimus avail­able — that is, no male relative on the father’s side such as a paternal uncle (who would be the most suitable tutor) — or if existing guardians have been excused or disqualified through misconduct or ill health.⁶⁵

Cod. Theod. 3.17.4, 21 January, 390

Emperors Valentinian (II), Theodosius (I) and Arcadius Augusti to Tatian, praetorian prefect:

Mothers who request the guardianship of administering business affairs for their children after the loss of their husbands, are to avow in the public records that they will not enter a second marriage, before the confirmation of such a duty can come to them legally.⁶⁶ (1) Certainly no woman is forced in a choice of this sort, but she is to proceed freely by will into the condi­tions which we have set forth. For if they prefer to choose other marriages, they ought not to administer their children’s guardianship.

(2)But so that after the guardianship has been legally undertaken, incur­sion upon it may not be easy for them, we order that first the property of the man who aspired to the marriage of the woman carrying out the guardian­ship is to come under obligation and be held liable to the accounts of the little ones, so that nothing is lost by carelessness, nothing lost by fraud.

(3)We add the following to this: that a woman, if she is above legal age, shall have the right of requesting the guardianship only when a tutor legit­imus has been lacking or is excused by privilege from the guardianship, or is removed by the character of “untrustworthy” or is discovered to be not even suitable for administering his own properties on account of the ill health of his mind or body.

(4)But if women have fled from guardianship and have preferred marriage, and there is not any legitimus able to be called for reasonable causes, then only the urban prefect, illustrious man, with the approval of the praetor who is in charge of bestowing guardianships, or the judges who restore laws to the provinces will order defenders from another order to be given to the minors by means of investigation.

Given at Milan on the twelfth day before the Kalends of February in the fourth consulship of Valentinian Augustus and the consulship of Neo- terius.⁶⁷