The Ancient Library

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ritas." There jyere other cases also in which the capacity of a ikulier was greater than that of a Pupilhis or Pirpilla. The object of this rule seems to have been the same as the restriction on the Testamentary power of women, for her Agnati who were a woman's Legitimi Tutores were in­terested in preventing the alienation of her pro­perty.

A Mulier might have a Tutor appointed by her father's Testament ; or by the Testament of her husband in whose hand she was (tutor dativus). She might also receive from her husband's will the Tutoris Optio (tutor optivus). Women who had no testamentary Tutor, were in the tutela of their Agnati, until this rule of law was repealed by a Lex Claudia, which Gains (i. 157) illustrates as follows: " a masculus impubes has his frater pubes or his patruus for his tutor ; but women (faeminae) cannot have such a tutor." This old tutela of the Twelve Tables (legitima tutela) and that of manumissores (patronorum tutela} could be transferred by the In jure cessio, while that of pupilli could not, " being," as Gaius observes, " not onerous, for it terminated with the period of puberty.'- But, as already suggested, there were other reasons why the Agnati could part with the tutela, which in the case of Patroni are obvious. The tutela of Patroni was not included within the Lex Claudia. The Tutela fiduciaria was ap­parently a device of the lawyers for releasing a woman from the tutela legitima (Cic. pro Murena, c. 12) ; though it seems to have been retained, after the passing of the Lex Claudia, which took away the tutela of Agnati over women, as a general mode by which a woman changed her Tutor. (Gaius, i. 115.) To effect this, the woman made a " coemptio fiduciae causa ; " she was then re-mancipated by the coemptionator to some person of her own choice: this person manumitted her by Vindicta, and thus became her Tutor fiduciarius. Thus the woman passed from her own familia to another, and her Agnati lost all claims upon her property, and her Tutor fiduciarius might be com­pelled by the Praetor to give his auctoritas to her acts. (Gaius, i. 190, ii. 122.)

A tutor dativus was given to women under the Lex Atilia, when there was no tutor ; and in other cases which have been already mentioned. (Gaius, i. 173, &c.; Ulp. Frag. tit. 11.) The Vestal Virgins were exempt from tutela ; and both Ingenuae and Libertinae were exempted from tutela by the Jus Liberorum. (Gaius, i. 145, 194.) Octavia, the sister of Caesar Octavianus, and his wife Livia, were released from Tutela by a special enactment. (Dion Cass. xlix. 38.) The tutela of feminae was determined by the death of the Tutor, or that of the woman ; and by her acquiring the Jus Liberorum, either by bearing children, or from the Imperial favour. The abdicatio of the Tutor, and the In jure cessio (so long as the In jure cessio was in use) merely effected a change of Tutor.

Mulieres differed from pupilli and pupillae in having a capacity to manage their affairs, and only requiring in certain cases the Auctoritas of a Tutor. If the woman was in the legitima tutela of patroni or parentes, the Tutores could not be compelled, except in certain very special cases, to give their auctoritas to acts which tended to deprive them of the woman's property, or to diminish it before it might come to their hands. (Gaius, 192.) Other Tutores could be compelled to give their auctoritas.


The special cases in which the auctoritas of a Tutor was required were, if the woman ,had to sue '* lege," or in a legitimum judicium, if she was going to bind herself by a contract, if she was doing any Civil act. or permitting her freedwoman to be in contu-bernium with the slave of another person, or alien­ating a Res Mancipi. Among Civil Acts (civilia negotia) was the making of a Testament, the rules as to which are stated in the article testa-MENTUflj. Libertae could not make a will with­out the consent of their Patroni, for the will was an act which deprived the Patron of his rights (Gaius, iii. 43) as being a Legitimus tutor. Gaius mentions a Rescript of Antoninus, by which those who claimed the bonorum possessio secundum ta-bulas non jure factas, could maintain their right against those who claimed it ab intestate. He adds, this Rescript certainly applies to the wills of males, and also of feminae who had not performed the ceremony of Mancipatio or Nuncupatio ; but he does not decide whether it applies to the testa­ments of women made without the auctoritas of a tutor ; and by tutor he means not those who ex­ercised the legitima tutela of parents or Patroni ; but Tutors of the other kind (alterius generis, com­pare ii. 122 and i. 194, 195) who could be com­pelled to give their auctoritas. It would be a fair conclusion, however, that a woman's will made without the auctoritas of such tutores, ought to be valid under the Rescript.

A payment made to a mulier was a release to the debtor, for a woman could part with Res nee Mancipi without the auctoritas of a Tutor: if, however, she did not receive the money, but af­fected to release the debtor by acceptilatio, this was not a valid release to him. (Cic. Top. 11 ; Gaius, ii. 83, 85, iii. 171.) She could not manumit without the auctoritas of a tutor. (Ulp. Frag. tit. i. s. 17; compare Cic. pro M. Cod. c. 29.) Gaius (ii. 47) states that no alienation of a Res Mancipi by a mulier in agnatormn tutela was valid unless it was delivered with the auctoritas of a Tutor, which he expresses by saying that her Res Man­cipi could not otherwise be the object of Usucapion, and that this was a provision of the Twelve Tables (ii. 47). In other cases, if a Res Mancipi was transferred by tradition, the purchaser acquired the Quiritarian ownership by Usucapion [UsucAPio]; but in the case of a woman^s Res Mancipi, the auctoritas of the Tutor was required in order that Usucapion might be effected. In another passage (ii. 80) Gaius observes that a woman cannot alienate her Res Mancipi without the auctoritas of her tutor, which means that the formal act of mancipatio is null without his auctoritas ; and such act could not operate as a traditio for want of his auctoritas as appears from the other passage (ii. 47). The passage of Cicero (pro Flacco, c. 34) is in ac­cordance with Gaius; but another (ad Ait. i. 5) is expressed so vaguely, that though the explanation is generally supposed to be clear, it seems ex­ceedingly doubtful, if it can be rightly understood. The possibility of Uusucapion, when there was the auctoritas of the Tutor, appears from Gaius ; but it does not appear why Cicero should deny, gene­rally, the possibility of Usucapion of a woman's property, when she was in Legitima Tutela. The passage, however, is perfectly intelligible on the supposition of there having been a transfer without the auctoritas of a Tutor, and on the further sup­position of Cicero thinking it unnecessary to state

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