), which signifies literally a person to whom anything
is given in charge (Dem. c. Aphob.
i. p. 819.19; Hdt. 3.63
; Xenoph. Cyrop.
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
); the father of Demosthenes three, two relatives and
Therippides (γένει μὲν οὐδὲν
Dem. c. Aphob.
i. p. 814.4: cf. ii. p.
840.15 f.); Plato (D. L. 3.43
) appointed seven
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
), the archon deciding who were best entitled to the office (Pollux,
8.89, ἐπιτρόπων καταστάσεις
authorising them to act as guardians (Argum.
κατὰ ϝόμον ἐπίτροπος τῶν τοῦ ἀδελφοῦ
Lys. de Aristoph. bon.
9, παιδάρια τρία ἠναγκασμένοι
--the brother of age, Lys. c. Theomn.
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 ἡ οὐσία
We have no information as to the number of
guardians required; Plato fixes the number at five (Legg.
p. 924 B). It may be taken for granted that none but citizens, of age and
could act as guardians; when
Pasion appointed a metoec Phormion one of the guardians of his son (Dem.
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,
i. p. 828.46; Plat. Alcib.
i. p. 122 A),
and protection of the ward (Aeschin. c. Tim.
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.
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.
1112.37; see also Plato's directions [p. 1.752]
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
Ammonius, s. v. οἶκος μὲν
λέγεται ἡ 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
§ 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
§ 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
§ 6), or to a phasis μισθώσεως
(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 ἢ κατὰ τὴν
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
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.
§ 21; Dem. c. Aphob.
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.
950.20). In case the accounts were unsatisfactory, and a compromise could
not be effected (Frohberger on Lys. c. Diogit.
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
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.
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.
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
2, 7) mentions ὀρφανοφύλακες
(cf. Photius, s. v.), and Demosthenes
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
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
] ; according to
Comparetti and Merriam (Amer. Journ. of Arch.
2.1), they were
guardians appointed by the father before his death. Thalheim
p. 140 n.) looks upon the συνορφανισταὶ
in Dittenberger (S. I.
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.
ed. Lipsius, p. 549 f.; Schulthess,
Vormundschaft n. Att. Recht.
. 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]
. . . .
(αὗται δ᾽ εἰσι κατὰ τῶν ἐπιτρόπων
(αὗται δέ εἰσι κατὰ [τῶν] ἐπιτρόπων καὶ τῶν
οἴκου ὀρφανικοῦ κακώσεως
(εἰσι δὲ καὶ [αὗται κατὰ τῶν]
) . . . .
εἰς ἐπιτροπῆς κατάστασιν, εἰς ἐπιτροπῆς
διαδικασίαν, εἰ [πλείονες τῆς αὐτῆς θέλουσ]ιν ἐπίτροπον αὐτὸν
. . . .
μισθοῖ δὲ καὶ τοὺς οἴκους τῶν