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EPI´TROPUS

EPI´TROPUS (ἐπίτροπος), which signifies literally a person to whom anything is given in charge (Dem. c. Aphob. i. p. 819.19; Hdt. 3.63; Xenoph. Cyrop. 4.2, 35, etc.), occurs, however, much more frequently in the sense of a guardian of orphan children. Of such guardians there were at Athens two kinds: (i.) Those appointed in the will of the deceased father (καταλείπειν), usually, but not necessarily, near relatives. The father of Alcibiades and Cleinias appointed Pericles and his brother Ariphron (Plat. Alcib. i. p. 104 B; Plut. Alc. 1, προσήκοντες κατὰ γένος); the father of Demosthenes three, two relatives and Therippides (γένει μὲν οὐδὲν προσήκοντι, Dem. c. Aphob. i. p. 814.4: cf. ii. p. 840.15 f.); Plato (D. L. 3.43) appointed seven ἐπίτροποι, i. e. executors according to Schulin, d. Griech. Testam. p. 29 (in Theophrastus' will they are called ἐπιμεληταί, D. L. 5.56); cf. also Plat. Legg. xi. p. 924 A. (ii.) In the absence of directions by will, the next of kin (tutores legitimi1), the archon deciding who were best entitled to the office (Pollux, 8.89, ἐπιτρόπων καταστάσεις) and authorising them to act as guardians (Argum. Isae. Arist., κατὰ ϝόμον ἐπίτροπος τῶν τοῦ ἀδελφοῦ γενόμενος; Lys. de Aristoph. bon. § 9, παιδάρια τρία ἠναγκασμένοι τρέφειν--the brother of age, Lys. c. Theomn. 1.5; the uncle, Isae. Cleonym. § 9, etc.); or, if there were no relatives or none fit to undertake the office, such persons as the archon selected from the whole body of Athenian citizens. The passages quoted above clearly show that Diogenes Laert. (1.56) is wrong in ascribing to Solon a law μὴ ἐπιτροπεύειν εἰς ὃν οὐσία ἔρχεται. We have no information as to the number of guardians required; Plato fixes the number at five (Legg. xi. p. 924 B). It may be taken for granted that none but citizens, of age and ἐπίτιμοι, could act as guardians; when Pasion appointed a metoec Phormion one of the guardians of his son (Dem. pro Phorm. p. 946.8), this was probably done because of his ability to carry on the business.

The law ascribed to Solon by Diogenes Laert. has been compared with the law of Charondas (Diod. 12.15), which ordained that the nearest kinsmen of the father should manage the property of orphans, but that the orphans should be brought up with the mother's relatives; cf. Gortyn Code, 8.50 f. At Athens, however, the duties of the guardian comprehended the personal care--the maintenance (τροφή, Lys. c. Diog. § § 9, 20), education (παιδεία, Dem. c. Aphob. i. p. 828.46; Plat. Alcib. i. p. 122 A), and protection of the ward (Aeschin. c. Tim. § 16), the assertion of his rights,--and the safe custody and profitable disposition of his inheritance during his minority, besides making a proper provision for the widow if she remained in the house of her late husband. In accordance with these, the guardian was bound to appear in court in all actions in behalf of or against his ward (Dem. c. Aphob. i. p. 821.26), to perform annually the funeral rites to the deceased parent on behalf of the ward (Isae. Cleom. § 10), to give in an account of the taxable capital (τίμημα) when an εἰσφορὰ (the only impost to which orphans were liable) was levied, and make the proportionate payment in the minor's name (Dem. c. Aphob. i. p. 815.7). With reference to the administration of the ward's estate, a testamentary guardian was bound to execute the trusts of the will (Dem. c. Steph. i. p. 1112.37; see also Plato's directions [p. 1.752]with regard to a certain piece of land, μὴ ἐξέστω τοῦτο μηδενὶ μήτε ἀποδόσθαι μήτε ἀλλάξασθαι, etc.). If the deceased had left no will or no specific directions as to its management, two courses were open to the guardian to pursue, viz. either to let it out to farm to the highest bidder (μισθοῦν τὸν οἶκον; Ammonius, s. v. οἶκος μὲν λέγεται πᾶσα οἰκία), or to keep it in his own hands and employ it as he best could for the benefit of the minor (διοικεῖν, Dem. c. Naus. et Xen. p. 987.8). In the former case he had to make an application to the archon (Isae. Philoct. § 36), who thereupon let the inheritance (the whole or in parts) to the highest bidder in presence of a court of justice; the farmer or farmers had to hypothecate real property to guarantee the fulfilment of the contract [HORI], and had to pay an annual percentage (sometimes more than 12 per cent. per annum, Dem. c. Aphob. i. p. 831.58 f.; cf. Att. Process, ed. Lipsius, p. 362 f.). The guardian might himself farm his ward's estates (Schömann on lsae. Philoct. § 36). In the latter case he might lay out the money in buying land (Lys. c. Diogit. § 23; Dem. c. Naus. et Xen. p. 986.7), or might lend it out on good security, and here it is said to have been ordained by law that money belonging to a minor should be vested in mortgages, but in no other security (so Boeckh, Sthh.3 i. p. 170, explains Lys. fr. 260 =Suid. s. v. ἔγγειον: Van den Es, de Jur. famil. p. 176, doubts that there was such a law). It seems probable that a constant control of the guardian's proceedings was exercised by the archon (Dem. c. Onet. i. p. 865.6).

If the guardian violated his duties, by neglecting the maintenance of his ward, by illtreatment treatment of his person, or by mismanaging his property, he was liable to a criminal prosecution which any Athenian might bring against him during the term of the ward's pupilage, viz. an eisangelia κακώσεως (Isae. Hagn. § 6), or to a phasis μισθώσεως ὀίκου (Dem. c. Naus. et Xen. p. 991.23), if he had not let the estate (but Harpocration, s. v. φάσις, can scarcely be right in saying that the guardian was liable to phasis εἰ ἐλάττονος κατὰ τὴν ἀξίαν μεμίσθωτο, considering that it was the archon who let the estate; Pollux's (8.47) definition is too general, τοὺς περὶ τοὺς ὀρφανοὺς ἐξαμαρτάνοντας). Both were τιμητοί, and one consequence of conviction was the removal of the guardian (Isae. Hagn. § 31). The guardianship expired when the ward attained his eighteenth year; and if the estate had been leased out, the farmer paid in the market-place the capital he had received and the interest (Isae. Menecl. § 21; Dem. c. Aphob. i. p. 832.58); if, however, the inheritance had been managed by the guardian, it was from him that the heir received his property and the account of his disbursements during the minority (Dem. pro Phorm. p. 950.20). In case the accounts were unsatisfactory, and a compromise could not be effected (Frohberger on Lys. c. Diogit. § 2), the heir might institute a δίκη ἐπιτροπῆς against his late guardian; this action was τιμητός (Dem. c. Aphob. i. p. 834.67, etc.), and the plaintiff was liable to epobelia upon failing to obtain the votes of a fifth of the dicasts ;--or in case the guardian had died, he might bring a δίκη βλάβης against the guardian's representatives (Dem. c. Naus. et Xen.). The right to sue a guardian for breach of duty was barred by the lapse of five years (Dem. c. Naus. et Xen. p. 989.17; cf. Plat. Legg. xi. p. 928 C). Meier infers from the case of Demosthenes that, where there were several guardians, they incurred a several and not a joint liability. No legal recompense was allowed to guardians for the performance of their duty; but it seems to have been common for testators to give legacies to the guardians, and Meier suggests that the general dishonesty of the Athenian character rendered it necessary thus to bribe guardians to be honest. A particularly flagrant case of violation of trust is that in Lysias, c. Diogit. Diogiton, who was both grandfather and uncle of his wards (for he had given his daughter in marriage to his brother), defrauded them of the whole of their inheritance, which, it is contended, amounted to more than fifteen talents.

It is a disputed question whether there was at Athens, besides the archon, a special magistracy to watch over the interests of orphans; Xenophon (de Vectig. 2, 7) mentions ὀρφανοφύλακες (cf. Photius, s. v.), and Demosthenes (c. Onet. i. p. 865.6) speaks of meetings and discussions held on the subject of his affairs, καὶ ταρὰ τῷ ἄρχοντι καὶ παρὰ τοῖς ἄλλοις: cf. also the fifteen oldest νομοφύλακες charged with the permanent control of the guardians in Plat. Legg. xi. p. 924 C. According to Zitelmann, Roby, etc., the ὀρπανοδικασταὶ in Gortyn Code, 12.21, 25, were public officers [COSMI] ; according to Comparetti and Merriam (Amer. Journ. of Arch. 2.1), they were guardians appointed by the father before his death. Thalheim (Rechtsalterth. p. 140 n.) looks upon the συνορφανισταὶ in Dittenberger (S. I. G. No. 344, 1. 28, Ephesus, 100.84 B.C.) as a magistracy. It would seem from Heracl. Pontic. (Polit. 40) that in Iasus a special magistracy watched over the education of the orphans. (Att. Process, ed. Lipsius, p. 549 f.; Schulthess, Vormundschaft n. Att. Recht.) [J.S.M] [H.H]

(Appendix). Ath. Pol. 56 contains a full account (of which Pollux, 8.89, gives a summary) of the functions of the archon; we quote here the passages which refer to the superintendence he exercised over orphans and their estates: γραφαὶ δ[ὲ καὶ δ]ίκαι λαγχάνονται πρὸς αὐτόν, ἃς ἀνακρίνας εἶτ̓ [εἰς δὶ]καστήριον εἰσά[γει] . . . .

ὀρφανῶν κ[ακώ]σεως (αὗται δ᾽ εἰσι κατὰ τῶν ἐπιτρόπων

ἐπικλήρου κακώσε[ως] (αὗται δέ εἰσι κατὰ [τῶν] ἐπιτρόπων καὶ τῶν συνοικούντων),

οἴκου ὀρφανικοῦ κακώσεως (εἰσι δὲ καὶ [αὗται κατὰ τῶν] ἐπιτρό[πω]ν) . . . .

εἰς ἐπιτροπῆς κατάστασιν, εἰς ἐπιτροπῆς διαδικασίαν, εἰ [πλείονες τῆς αὐτῆς θέλουσ]ιν ἐπίτροπον αὐτὸν ἐγγράψαι. . . .

μισθοῖ δὲ καὶ τοὺς οἴκους τῶν ὀρφανῶν.

1 We find tutores legitimi in Sparta (Paus. 3.5, 7, . δὲ ἐπετρόπευεν αὐτοὺς γένους ἐγγύτατα ὤν), in Syracuse (Plat. Epist. vii. p. 345 D, ὄντος μὲν άδελφιδοῦ αὺτοῦ, κατὰ νόμους δ᾽ἐπιτροπεύοντος). For Ephesus two classes of guardians are mentioned, ὑπὸ πατρὸς καταλελειμμένοι ὑπὸ δήμου ἡιρημένοι (Dittenberger, S. I. G. No. 344, 1. 56). A woman as ἐπίτροπος in Erythrae (ibid. No. 370, 1. 122). The guardian of a Spartan king under age was called πρόδικος (Xen. Hell. 4.2, 9; Plut. Lyc. 3); he was usually the next of kin, e. g. Pausanias was guardian of Pleistarchus ἀνεψιὸς ὤν (Thuc. 1.132); cf. Hdt. 9.10.

hide References (9 total)
  • Cross-references from this page (3):
    • Diodorus, Historical Library, 12.15
    • Herodotus, Histories, 3.63
    • Plutarch, Alcibiades, 1
  • Cross-references in notes from this page (6):
    • Herodotus, Histories, 9.10
    • Pausanias, Description of Greece, 3.5
    • Pausanias, Description of Greece, 3.7
    • Xenophon, Hellenica, 4.2
    • Thucydides, Histories, 1.132
    • Plutarch, Lycurgus, 3
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