[IDEM libro singulari ad orationem diui Antonini et Commodi. ] §23.2.60.prSi quis tutor quidem non sit, periculum tamen tutelae ad eum pertineat, an sententia orationis contineatur? ueluti si pupilla ab hostibus capta fuerit aut falsis allegationibus a tutela se excusauerit, ut ex sacris constitutionibus periculum ad eum pertineat? et dicendum est hos quoque ad senatus consultum pertinere: nam et huiusmodi periculum in numerum trium tutelarum computari comprobatum est.
[THE SAME, in his Single Book on the Address of the Divine Antoninus and Commodus.] If anyone is not indeed a guardian, but the risk of guardianship nevertheless pertains to him, is he included in the meaning of the address? For example, if a female ward has been captured by enemies, or if he has excused himself from guardianship by false allegations, so that under the sacred constitutions the risk pertains to him. And it must be said that these persons also pertain to the senatusconsultum; for it has been approved that a risk of this kind is also computed in the number of three guardianships.
§23.2.60.1Sed si propter alterius personam periculum ad eum peruenit, uideamus ne extra sententiam senatus consulti sit: ueluti si magistratus in tutelae periculum incidit uel fideiusserit quis pro tutore uel curatore, quia nec in numerum trium tutelarum haec imputantur: et consequens est hoc probare.
But if the risk reaches him because of another person, let us see whether he is outside the meaning of the senatusconsultum; for example, if a magistrate falls into the risk of guardianship, or if someone has become surety for a guardian or curator, because these also are not imputed into the number of three guardianships; and it is consistent to approve this.
§23.2.60.2Quid ergo si honoris causa tutor datus sit? quatenus nec huiusmodi tutela in numerum computatur, numquid idem sit? sed ratio in contrarium ducit, quod dictum est et honorarium tutorem periculum solere pati, si male passus sit administrari tutelam.
What then if a guardian is appointed for the sake of honor? Insofar as a guardianship of this kind is not computed in the number, would the same hold true? But reason leads to the contrary, because it has been said that even an honorary guardian is accustomed to suffer the risk if he has permitted the guardianship to be badly administered.
§23.2.60.3Quin autem ille, qui, cum datus est tutor, cessat in administratione, pertineat ad orationem, non est dubitandum, quia perinde tenetur ex sacris constitutionibus atque si gessisset.
Moreover, there is no doubt that he who, having been appointed guardian, fails to act in the administration, pertains to the address, because he is bound under the sacred constitutions in the same manner as if he had administered.
§23.2.60.4Quid ergo si, cum se uellet excusare aliquo titulo nec in promptu probationes haberet, excusationis negotium fuerit dilatum et inter moras pupilla adoleuerit, an ad senatus consultum pertineat? quaestio in eo est, an et post pubertatem officio finito excusationem eius recipi oporteat: nam si recipitur et excusauerit, impune potest ducere: si uero non debeat recipi post officium finitum, non recte ducit.
What then if, when he wished to excuse himself on some ground and did not have the proofs at hand, the matter of the excuse was delayed and during the delay the female ward reached puberty, does he pertain to the senatusconsultum? The question is whether his excuse ought to be received even after puberty, when his office has ended; for if it is received and he is excused, he can marry her with impunity; but if indeed it ought not to be received after the office has ended, he does not marry her lawfully.
et ait Papinianus libro quinto responsorum officio finito excusationem recipi non oportere et ideo exacti temporis periculum ad eum pertinere.
And Papinian says in the fifth book of his Responses that after the office has ended, the excuse ought not to be received, and therefore the risk of the elapsed time pertains to him.
sed mihi hoc nequaquam placet: iniquum enim est propter dilationem, quae forte non dolo, sed quae ex necessitate contingit, non excusari uel nuptias impediri excusatione recepta.
But this is by no means pleasing to me; for it is unjust that, because of a delay which occurred perhaps not by fraud, but by necessity, he should not be excused, or that the marriage should be prevented though the excuse should be received.
§23.2.60.5Quamuis uerbis orationis cautum sit, ne uxorem tutor pupillam suam ducat, tamen intellegendum est ne desponderi quidem posse: nam cum qua nuptiae contrahi non possunt, haec plerumque ne quidem desponderi potest: nam quae duci potest, iure despondetur.
Although it is provided by the words of the address that a guardian shall not marry his female ward, it must nevertheless be understood that she cannot even be betrothed; for one with whom marriage cannot be contracted, generally cannot even be betrothed; for she who can be married is lawfully betrothed.
§23.2.60.6Quid ergo si adoptiuus filius tutoris duxerit pupillam illicite posteaque emancipatus fuerit? credendum est de adoptiuis emancipatis senatum non sensisse, quia post emancipationem in totum adoptiuae familiae obliuiscuntur.
What then if the adoptive son of a guardian has unlawfully married a female ward and has afterwards been emancipated? It must be believed that the senate did not mean to refer to emancipated adoptive children, because after emancipation they completely cease to belong to the adoptive family.
§23.2.60.7Naturales liberi licet in adoptionem dati fuerint, senatus consulto continentur.
Natural children, although they have been given in adoption, are included in the senatusconsultum.
§23.2.60.8Quid ergo si tutor datus prouocauit et postea heres eius uictus est? praeteriti temporis periculum praestare debet.
What then if a designated guardian appealed and afterwards his heir was defeated? He must make good the risk of the past time.
an uero si filius heres fuerit et uictus est, ad orationem pertineat? et consequens est hoc probare, quoniam rationem debet reddere.
But if a son has been the heir and was defeated, does he pertain to the address? And it is consistent to approve this, since he must render an account.