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

TUTOR. TUTOR. 1179
ritas." There were other cases also in wvhich the The special cases in which the auctoritas of a Tutor
capacity of a Miulier was greater than that of a was required were, if the woman had to sue " lege,"
Pupillus or Pupilla. The object of this rule seems or in a legitimumjudicium, if she was going to bind
to have been the same as the restriction on the herself by a contract, if she was doing any Civil
Testamentary power of women, for her Agnati act, or permitting her freedwoman to be in contuwho were a woman's Legitimi Tutores were in- bernium with the slave of another person, or alienterested in preventing the alienation of her pro- ating a Res Mancipi. Among Civil Acts (civilia
perty. negotia) was the making of a Testament, the rules
A Muller might have a Tutor appointed by her as to which are stated in the article TESTAfather's Testament; or by the Testament of her IMENTUAi. Libertae could not make a will withhusband in whose hand she was (tutor dativus), out the consent of their Patroni, for the will was
She might also receive from her husband's will the an act which deprived the Patron of his rights
Tutoris Optio (tutor optivus). Women who had (Gaius, iii. 43) as being a Legitimus tutor. Gaius
no testamentary Tutor, were in the tutela of their mentions a Rescript of Antoninus, by which those
Agnati, until this rule of law was repealed by a who claimed the bonorum possessio secundum taLex Claudia, which Gains (i. 157) illustrates as bulas non jure factas, could maintain their right
follows: " a masculus impubes has his frater against those who claimed it ab intestate. He adds,
pubes or his patruus for his tutor; but women this Rescript certainly applies to the wills of males,
(faemninae) cannot have such a tutor." This old and also of feminae who had not performed the
tutela of the Twelve Tables (legitinma tutela) and ceremony of Mancipatio or Nuncupatio; but he
that of manumissores (patronoruem tutela) could be does not decide whether it applies to the testatransferred by the In jure cessio, while that of ments of women made without the auctoritas of a
pupilli could not,'" being," as Gaius observes, tutor; and by tutor he means not those who ex"not onerous, for it terminated with the period of ercised the legitima tutela of parents or Patroni;
puberty." But, as already suggested, there were but Tutors of the other kind (alterius genesis, comother reasons why the Agnati could part with the pare ii. 122 and i. 194, 195) who could be comtutela, which in the case of Patroni are obvious. pelled to give their auctoritas. It would be a fair
The tutela of Patroni was not included within the conclusion, however, that a woman's will made
Lex Claudia. The Tutela fiduciaria was ap- without the auctoritas of such tutores, ought to be
parently a device of the lawyers for releasing a valid under the Rescript.
woman from the tutela legitima (Cic. pro Mzurena, A payment made to a mulier was a release to
c. 12); though it seems to have been retained, the debtor, for a woman could part with Res nec
after the passing of the Lex Claudia, which took Mancipi without the auctoritas of a Tutor: if,
away the tutela of Agnati over women, as a general however, she did not receive the money, but afmode by which a woman changed her Tutor. fected to release the debtor by acceptilatio, this was
(Gaius, i. 115.) To effect this, the woman made not a valid release to him. (Cic. Top. 11; Gaius,
a 6 coemptio fiduciae causa;'" she was then re- ii. 83, 85, iii. 171.) She could not manumit
mancipated by the coemptionator to some person without the auctoritas of a tutor. (Ulp. Frag. tit. i.
of her own choice: this person manumitted her by s. 17; compare Cic. pro M. Coel. c. 29.) Gaius (ii.
Vindicta, and thus became her Tutor fiduciarius. 47) states that no alienation of a Res Mancipi
Thus the woman passed from her own fnamilia to by a mulier in agnatorum tutela was valid unless
another, and her Agnati lost all claims upon her it was delivered with the anctoritas of a Tutor,
property, and her Tutor fiduciarius might be com- which he expresses by saying that her Res Manpelled by the Praetor to give his auctoritas to her cipi could not otherwise be the object of Usucapion,
acts. (Gaius, i. 190, ii. ] 22.) and that this was a provision of the Twelve Tables
A tutor dativus was given to women under the (ii. 47). In other cases, if a Res Mancipi was
Lex Atilia, when there was no tutor; and in other transferred by tradition, the purchaser acquired the
cases which have been already mentioned. (Gaius, Quiritarian ownership by Usucapion [UsUCAPIO];
i. 173, &c.; Ulp. Frag. tit. 11.) The Vestal Virgins but in the case of a woman's Res Mancipi, the
were exempt from tutela; and both Ingenuae and auctoritas of the Tutor was required in order that
Libertinae were exempted from tutela by the Jus Usucapion might be effected. In another passage
Liberorum. (Gaius, i. 145, 194.) Octavia, the (ii. 80) Gaiuns observes that a woman cannot
sister of Caesar Octavianus, and his wife Livia, alienate her Res Mancipi without the auctoritas of
were released from Tutela by a special enactment. her tutor, which means that the formal act of
(Dion Cass. xlix. 38.) The tutela of feminae mancipatio is null without his auctoritas; and such
was determined by the death of the Tutor, or that act could not operate as a traditio for want of his
of the woman; and by her acquiring the Jus auctoritas as appears from the other passage (ii. 47).
Liberorum, either by bearing children, or from the The passage of Cicero (pro Fltcco, c. 34) is in acImperial favour. The abdicatio of the Tutor, and cordance with Gaius; but another (ad Att. i. 5) is
the In jure cessio (so long as the In jure cessio expressed so vaguely, that though the explanation
was in use) merely effected a change of Tutor. is generally supposed to be clear, it seems exMulieres differed from pupilli and pupillae in ceedingly doubtful, if it can be rightly understood.
having a capacity to manage their affairs, and only The possibility of Uusucapion, when there was the
requiring in certain cases the Auctoritas of a Tutor. auctoritas of the Tutor, appears from Gaius; but
If the woman was in the legitima tutela of patroni it does not appear why Cicero should deny, geneor parentes, the Tutores could not be compelled, rally, the possibility of Usucapion of a woman's
except in certain very special cases, to give their property, when she was in Legitima Tutela. The
auctoritas to acts which tended to deprive them of passage, however, is perfectly intelligible on the
the woman's property, or to diminish it before it supposition of there having been a transfer without
might come to their hands. (Gaius, 192.) Other the auctoritas of a Tutor, and on the further supTutores could be compelled to give their auctoritas. position of Cicero thinking it unnecessary to state