Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

TUTOR. T UTOR.' 1177
-nearest Agnati, and such Tutores were called Legi- by' testament, for they wecre confirnied by the
tisi. The nearest Agnati were also the heredes in Twelve Tables, and tutores appointed under any
case of the immediate heredes of the Testator dying other Lex as the Atilia. Various Senatusconsulta
intestate and without issue, and the tutela was declared in what cases a tutor might be appointed;
therefore a right which they claimed as well as a thus the Lex Julia de maritandis ordinibus (Papia
duty imposed on them. Persius (ii. 1.2) alludes to et Poppaea) enacted that the Praetor should apthe claim of the Tutor as heres to his pupillus. A point a tutor for a woman or a virgin, who was reson who was pubes, was the legitinus tutor of a quired to marry by this law, " ad dotem dandam,
so1n who was impubes; and if there was no son who dicendram, promittendamve," if her Legitimus tutor
was pubes, the son who was impubes had his father's was himself a Pupillus: a Senatusconsultum exbrother (patrzuns) for his tutor. The same rule ap- tended the provision to the provinces, and enacted
plied to females also, till it was altered by a Lex that in such case the praesides should appoint a
Claudia. If there were several agnati in the same tutor; and also that if a tutor was mutus or furiosus,
degree, they were all tutores. If there were no another should be appointed for the purposes of the
Agnati, the tutela belonged to the Gentiles, so long Lex. The case above mentioned of a tutor being
as the Jus Gentilicium was in force. (Gaius, iii. given in the case of an action between a tutor and
17, and i. 164.) The tutela in which a freedman his ward, is a case of a tutor Moribus datus. In
was with respect to his Patronus was also Legitima; the Imperial period from the time of Claudius trnot that it was expressly given by the words (lex) tores extra ordinem were appointed by the consuls
of the Twelve Tables, but it flowed from the lex also.
as a consequence (per consequentianm, Ulp. Frac. Only those could be Tutores who were sui juris.
tit. 11); for as the hereditates of intestate liberti A person could not be named Tutor in a Testaand libertee belonged to the patronus, it was as- ment, unless he had the Testamentifactio with the
sumed that the tutela belonged to him also, since Testator, a rule which excluded such persons as
the Twelve Tables allowed the same persons to be Peregrini. The Latini Juniani were excluded by
tutors in the case of an ingennus, to whom they the Lex Junia. (Gains, i. 23.) WVomen could
gave the hereditas in case there was no suus heres. not be Tutores. Many persons who were com(Gaius, i. 165.) petent to be Tutores, might excuse themselves
If a free person had been mancipated to another from taking the office: these grounds of excuse
either by the parent or coemptionator, and such (excusationes) were, among others, age, absence,
other person manumitted the free person, he be- the being already Tutor in other cases, the holding
came his tutor fiduciarius by analogy to the case of of particular offices and other grounds which are
freedman and patron. (Compare Gains, i. 166 with enumerated in the Fragmenta Vaticana (123Ulp. Froq. tit. 11. s. 5.) [EIMANCIPATIO;FIDUCIA.] 247). In the system of Justinian the tutela is
If an impubes had neither a tutor Dativus nor viewed as a Publicum munus.
Legitimnus, he had one given to him, in Rome, un- The power of the Tutor was with respect to the
der the provisions of the Lex Atilia by the Praetor property and pecuniary interests, not the person of
Url-anus and the major part of the Tribuni Plebis; the Pupillus, and the passage of the Twelve Tables
in the provinces in such cases a tutor was appointed which gives or confirms to a testator the power of disby the Praesides under the provisions of the Lex posing of his property, uses the phrase, Uti legessit
Julia et Titia. [LEX JULIA ET TITIA.] If a super pecunia tutelave suae rei, that is the Tutela
tutor was appointed by testament either sub condi- of the property. It was not absolutely essential
cione or ex die certo, a tutor miight be given under to the notion of Tutela that the Tutor should have
these Leges so long as the condition had not taken the administration of property; and he had it not
effect or the day had not arrived: and even when in the case of Mulieres. It might happen that the
a tutor had been appointed absolutely (pure), a Tutores from their nearness of blood anld other
tutor might be given under these Leges so long as causes might have the guardianship of the nmthere was no heres; but the power of such tutor pubes; but then the protection of the property of
ceased as soon as there was a tutor under the tes- the Impubes was the special office of the Tutor,
tament, that is, as soon as there was a heres to and the care of the infant belonged to the mother,
take the hereditas. If a tutor was captured by if she survived (custodian matrumz, Hoer. Ep. i. 1.
the enemy, a tutor was also given under these 22). In a case mentioned by Livy (iv. 9), where
Leges, but such tutor ceased to be tutor, as soon as the mother and the Tutores could not agree about
thll original tutor returned from captivity, for he the marriage of the mother's daughter, the marecovered his tutela Jure Postliminii. gistratus decided in favour of the mother's power
Before the passing of the Lex Atilia tutors were (seczundums parentis arbitrium). As to the later
given by the praetor in other cases, as for instance, law, see Dig. 27. tit. 2 s. s. 1. ~ 6.
when the legis actiones were in use, the Praetor A pupillus could do no act by which he dimiappointed a tutor if there was any action between nished his property, but any act to which he was
a tutor and a woman or ward, for the tutor could a party was valid, so far as concerned the pupillus,
not give the necessary authority- (auctoritas) to if it was for his advantage. Consequently a
the acts of those whose tutor he was, in a matter pupillus could contract obligationes, which were for
in which his own interest was concerned. Other his advantage, without his Tutor. (Gaius, iii. 107.)
cases in which a tutor was given are mentioned by The Tutor's office was " negotia gerere et auctoriUlpian, Frog. tit. 11. tatem interponere." Thus the natural act of the
Ulpian's division of Tutores is into Legitimi, pupillus became by auctoritatis interpositio of the
Senatusconsultis constituti, Moribus introducti. Tutor, a legal act; and thus the pupillus anld his
His legitimi tutores comprehend all those who be- Tutor formed one complete person, as to legal cacome tutores by virtue of any Lex, and specially pacity to act. No particular form was required
by the Twelve Tables: accordingly it comprises for the expression of the tutor's auctoritas, and his
tutores in the case of intestacy, tutores appointed presence, when the act was done. by the pupillus,