Roman Law Terms with Letters T

Tabellae. Wax covered wooden tablets on which the voters in a popular assembly recorded their vote in legislative and jurisdictional matters through appropriate abbreviations, such as a, c, u.r.

In elections of magistrates votes also were made on tablets on which the names of the candidates were inscribed. The pertinent rules concerning the use of tablets in voting = leges tabellariae.

Liebenam, RE 4, 692; Lafaye, DS 5, 5.

Tabellariae leges. See tabellae, leges tabellariae. Tabellarius. A messenger (courier) charged with the delivery of private letters (tabellae). The term seems to have been applied also to officials of the cursus publicus (post service) concerned with the movement of the official correspondence.—See statio.

Schroff, RE 4A; Lafaye, DS 5.

Tabellio. A private, professional person who drew up written documents for private individuals. The jurists and lawyers advised their clients about legal problems; the tabelliones assisted them in writing legal documents (testaments, transactions) and applications (libelli, preces) to be addressed to the emperor or higher officials. The tabelliones exercised their profession on public places (fora, markets) or in offices (stationes) assisted by clerks and secretaries (scribae, notarii). Their activity was controlled by governmental officials who were authorized to inflict penalties for fraud or negligence or for cooperation in illicit transactions. Justinian required every tabellio to obtain official permission (auctoritas), and settled rules about the formalities to be observed by a tabellio in his work (C. 4.21.17, a.d. 528, Nov. 44). In the case of a dispute between the parties, the tabellio was obliged to testify about the conformity of the document with the transaction concluded with his cooperation.—The ceiling-price schedule issued by Diocletian (see EDICTUM DIOCLETIANI DE PRETIIS) fixed the fees to be paid to a tabellio, by the lines of the written document.—See instrumentum, tabularius.

Sachers, RE 4A; Lecrivain, DS 5; Rota, NDI 12; Μ. Tardy, Les tabelliones remains (These Bordeaux, 1901) ; T. Pfaff, Tabellio und Tabularius, 1905; H. Steinacker, Die antiken Grundlagen der frühmittelalterlichen Privaturkunde №27) 79} A. Segre, BIDR 35 (1927) 87; J, C. Brown, Origin and early history of the office of notary (Edinburgh, 1936) 17; Berger, Jour, of Juristic Papyrol- ogy 1 (1945) 37 (=BIDR 55-56, Post-Bellum [1951] 120).

Taberna. A shop used for the sale of merchandise or for an industrial or commercial activity. Taberna argentaria = a banker’s shop. Usually, tabernae were built by private individuals on public ground along streets and roads or in the vicinity of marketplaces, with the permission of local authorities. The builder was permitted to transfer the use of the taberna to another person^

Schneider, RE 4A, 1864; Kübler, ibid. 929; Chapot, DS 5. Tabernarius. The owner of a taberna. Tabernarius (or tabernaria) was also the keeper of an inn-tavern.

Schneider, RE 4A.

Tabula (tabulae). A tablet used for writing, in both public and private life. See tabulae ceratae. The administration used tabulae of bronze or of wood covered with white paint (see album) for public announcements, such as publication of laws, the praetorian Edict, and imperial enactments (see promulgatio) and in public offices for records, registration, accounting books, documents, etc. See tabulae publicae. In private life the use of tabulae (in the plural, since normally two tablets were joined together, see diptychum) was widespread: in the household for notes on income and expenses (see codex accepti et expensi ), for records of the family history, in banking for account books, and generally for all kinds of transactions and legal acts. Thus the term tabula occurs in connection with the pertinent contractual relation (tabula emptionis, tabula cautionis, tabula contractus, tabula chirographi, and the like). The most frequent use is tabulae testamenti = a testament.—See testimonium per tabulas.

Sachers, RE 4A; Lafaye, DS 5; H. Steinacker, Die antiken Grundlagen der frühmittelalterlichen Urkunde (1927) 82.

Tabula Bantina. See lex latina tabulae bantinae. Tabula Hebana. See destinatio.

Coli, Parola del Passato 6 (1951) 433; idem, Iura 3 (1952) 90; Staveley, AmJPhilol 74 (1953) 1.

Tabula Heracleensis. See lex iulia municipalis. Tabula picta. See pictura.

Tabulae censoriae. Registers made by the censors during the registration of the population (see census). The tabulae censoriae, also called libri censorii, were first preserved in the censors’ office, but were later transferred to the state archive (see aerarium). Tabulae censoriae actually comprised all documents connected with the activity of the censors, in particular the contracts concluded by them with private persons (contractors) concerning professional services rendered to the state.—See censores, tabulae IUNI0RUM.

Tabulae ceratae. Wooden tablets covered with wax on which writing was done with a stylus. Syn. tabulae ceraeque. On the use of such tablets for documents, see tabula, diptychum, TRiPTYCHUM. Many such tablets have been preserved in the mines of Transylvania Pompei, and in Herculaneum.

Lafaye, DS 5, 12; Editions: in the Corpus Inscriptionum Latinarum and in the collections of pre-Justinian sources {Fontes, see General Bibliography, Ch. XII), the most recent one by Arangio-Ruiz, FIR 3 (1943). For the wax tablets of Herculanum: Maiuri, La parola del passato 1 (1946/7) 373, 8 (1948) 165; Pugliese-Carratelli, ibid. 1, 379; Arangio-Ruiz, ibid. 8 (1948) 129; idem, RIDA 1 (1948) 9.—P. Krüger, Gesch. der Quellen² (1912) 267.

Tabulae communes municipii. Account books concerning the administration of municipalities. They also contained records of contracts concluded with private persons.

Tabulae dotales (dotis). See instrumentum dotale, TABULAE NUPTIALES.

Tabulae duodecim. See lex duodecim tabularum.

Tabulae honestae missionis. See missio, diploma MILITARE.

Lammert, RE 4A.

Tabulae iuniorum. Registers of young men to be called to military service. The tabulae were a part of the TABULAE CENSORIAE. See IUNIORES.

Tabulae nuptiales. A written marriage contract. Its usage appears as early as the beginning of the Prin- cipate. The contract was not a requisite for the validity of the marriage. It contained among other things provisions concerning the dowry, its constitution, and restitution when the marriage would be dissolved. The tabulae nuptiales acquired particular importance in Justinian’s law (C. 5.27.10, a.d. 529) inasmuch as children born of a non-marital union of two persons who later made an instrumentum dotale (generally considered a proof of the existence of a marriage), were regarded as legitimate. Justinian also made a written marriage contract mandatory for some marriages (e.g., with a slave [Nov. 22.11; 78.3], with actresses or their daughters). Syn. tabulae matrimoniales, instrumentum nuptiale.—See instrumentum DOTALE.

Kiibler, RE 4A, 1949; Castelli, SDHI 4 (1938) 208; J. P. P. Levy, RDH 30 (1952) 468.

Tabulae patronatus. See patronus municipii. Tabulae primae. See testamentum pupillare. Tabulae publicae. Tablets used in public administration, in particular records of the official activities of the magistrates. When the year of service of a magistrate was over, his official tabulae were transferred to the aerarium populi romani which served as a general state archive under the supervision (cura tabularum publicarum) of the quaestors. In the Principate the archive was under the control of curatores tabularum publicarum who later were replaced by praefecti.

Kornemann, RE 4A.

Tabulae quaestoriae. The account books of the quaestores, concerning financial administration.

Tabulae secundae. See testamentum pupiliare.

Tabulae signatae (septem sigillis). A written testimony signed and sealed by (seven) witnesses to serve as evidence that a transaction was concluded or that a legally important event happened.—See testimonium per tabulas, testatio.

Sachers, RE 4A, 1885; Kaser, RE 5A, 1027; Lecrivain, DS 5, 155; Brassloff, ZSS 27 (1906) 217.

Tabulae testamenti. (Or simply tabulae.) A written testament.—D. 37.2; 38.6.—See testamentum, bonorum possessio secundum tabulas, bonorum possessio contra tabulas.

Archi, StPav 26 (1941) 63.

Tabulae triumphales. See triumphus.

Tabularium. An archive in which documents (tabulae) were kept. The central archive was the aerarium populi romani. See tabulae publicae. In addition, there were several special tabularia, as, e.g., one in the temple of Ceres for plebiscita and senatusconsulta. Tabularium Caesaris = a general archive for the imperial administration, the emperor’s correspondence, reports from provincial governors, and the like. In the provinces there were a special tabularium for the records of the provincial administration and a tabularium principis (Caesaris) chiefly concerned Auth the financial administration the imperial domains included. The latter was called also tabularium publicum. The municipalities had a tabularium civitatis.

Sachers, RE 4A; Lafaye, DS 5; Del Prete, NDI 12, 1; Richmond, OCD.

Tabularium castrense. A special archive for military administration. In the Empire it was a part of the imperial archive. Tabularium legionis = the archive of a legion.

Tabularius. A subordinate official in the fiscal administration, chiefly concerned with taxes. Originally slaves (servi publici), later freedmen, occupied the posts of tabularii who were active in the various branches of the general and financial administration (rationes) and subject to a chief, praepositus tabulariorum. They were organized as a collegium. Tabularii were also found in provincial and municipal administration as well as in the army. Their connection with the archives and public records in the various offices (hence their official title), their collaboration in drawing up public documents in the different domains of public administration, and their experience in such work led in the later Empire to their being permitted to assist private persons in writing documents.

The activity of tabularii in the private field became similar to that of private notaries (tabelliones). In post-Justinian times there was no difference between tabelliones and tabularii.—C. 10.71.

Sachers, RE 4A; Lafaye, DS 5; I. Pfaff, Tabellio und tabularius, 1905; H. Steinacker, Die antiken Grundlagen der frühmittelalterlichen Privaturkunde, 1927, 78.

Tacere. To be silent, to give no answer. In classical law there were no strict rules about the significance of the silence of a person who gave no answer in court when questioned by a magistrate or judge. With regard to confessio in iure the jurists assumed that “he who is silent does not confess at all, but it is true that he does not deny” (D. 11.1.11.4). In Justinian’s Digest the compilers promoted this opinion to a general rule by placing it in the final title “On legal rules” (D. 50.17.142). Only with reference to interrogatio in iure was silence on the part of a person interrogated by the magistrate considered a contempt of court and interpreted in his disfavor.—In certain contractual relations the silence of a party could be regarded as consent in particular when the renewal of an agreement was at issue; see silentium, tacite.

Tacite. Secretly, not expressly stated, self-understood. Some clauses are assumed to be agreed upon (tacite inesse) if the parties do not exclude them. Thus, e.g., in a pledge of rustic lands it is self-understood that the proceeds (fructus) are,also pledged.—See tacere, silentium, and the following items.

Tacitum fideicommissum. A fideicommissum based on a secret agreement between the testator and the heir to the effect that after the testator’s death the heir was to deliver the legacy to an incapable person. Such an agreement, concluded in order to defraud the law, was void, the thing involved was seized by the fisc, and the heir became indignus and was excluded from any benefit under the testament.

Tacitum pignus (or tacite contractum). See hypotheca tacita.—C. 8.14.

Taciturnitas. See silentium.

Tacitus. See HYPOTHECA tacita, reconducito, consensus, and the foregoing items.

Tacitus consensus omnium (or populi). Alleged as the foundation of customary law.—See consuetudo, mores.

Talio. Retaliation, infliction of the same injury on the delinquent as that done by him. Talio was a kind of private vengeance which was permitted under the earliest law. The institution is already established in the Twelve Tables (VIII 2) as a sanction in the case of membrum ruptum. Retaliation was carried out by the injured person himself or in the case of his inability by his nearest relative. The parties might, however, agree on a pecuniary compensation to be paid by the offender (pacisci de talione redimenda), according to the Twelve Tables; in this case the application of talio was excluded. In the penal law of the later Empire penalties for certain crimes are somewhat reminiscent of the ancient idea of retaliation, e.g., in case of arson the culprit was punished by death through burning; see crematio.

Herdlitczka, RE 4A; Jolowicz, The assessment of penalties in primitive law, in Cambridge Legal Essays (1926) 203; Genzmer, ZSS 62 (1942) 122.

Talis. When used with reference to someone or something (tale) mentioned before, instead of is (id), this is not classical Latin. It occurs frequently in interpolated passages.

Guarneri-Citati, Indice* (1927) 86.

Tangere. To touch. The verb appears in the definition of corporeal things : quae tangi possunt ( = which can be touched upon).—See res corporales.

Tanta. Justinian’s enactment of December 16, 533, by which the Digest was promulgated. The Greek version (not a literal translation) of this constitution is called dedoken (from the initial word). Both constitutions are very instructive for the understanding of the emperor’s intentions and the nature of his legislative work, made up of excerpts taken from the writings of the classical jurists.—See digesta iusti- NTANI, DEDOKEN.

Ebrard, ZSS 40 (1919) 113.

Tarruntenus Paternus. A Roman jurist of the second half of the second century after Christ. He wrote a treatise De re militari (— on military matters) which dealt with tactics and with legal problems connected with the military service. From one excerpt of the work (D. 50.6.7) we know of a long list of professionals who worked for the army and were therefore exempt from public services (munera).

Berger, RE 4A, 2405; W. Kunkel, Hcrkunft und- sosiale Stcllnng dor rom. Juris ten, 1952, 219.

Taxatio. The establishment of a maximum to which the defendant in a civil trial could be condemned. The limit was expressed in the part of the procedural formula called condemnAtio through a clause starting with the word dumtaxat ( = not exceeding, only) followed by the indication of the amount which the condemnation could not exceed. The limit could be determined otherwise, by a specification of the fund from which the plaintiff was to be satisfied, e.g., the defendant’s peculium (dumtaxat de peculio). See beneficium com petent i ae.—Another kind of taxatio was in the case of iusiurandum in litem. The judge could impose on the plaintiff as the utmost limit his estimation of the value of the object in litigation.

Kaser, RE 5A; Levy, ZSS 36 (1915) 64.

Tectum. A roof. Tectum praestare (exhibere) alicui = to grant someone a dwelling. Sub eodem tecto = under the same roof, in the same household. The last expression was broadly interpreted by the jurists in connection with the senatusconsultum silania- num which submitted to investigation and torture all slaves, living sub eodem tecto when their master was assassinated and the murdered not discovered.— Tecta sarta (from sarcire) — roofs well repaired, buildings in good condition. The question as to who is obliged to repair the roof of a house is discussed by the jurists with regard to a usufruct and use (usits) (agreed upon or bequeathed) of the house.

O. Karlowa, Rom. Rechtsyeschichte 1 (1885) 247.

Telum. A missile, a weapon of any kind. The meaning of the term is discussed by the jurists in connection with the lex iulia de vi publica, under which an aggressor who used a telum against the victim or an armed thief was guilty of violence of a higher degree. There the term was interpreted in the broadest sense; telum was anything by which a man could hurt another, “a stone, a piece of wood or iron thrown by hand” (D. 50.16.233.2).—See vis armata, turba.

Temere litigare. See poenae temere litigantium, temeritas.

Temeritas. Rashness, lack of caution, of'reflection, in starting a lawsuit or accusing a person of a crime. See CALUMNIA, POENAE TEMERE LITIGANTIUM.

Chiovenda, RISG 26 (1898) 26.

Temo. A recruit-tax, levied primarily on landowners to be used for wages for mercenary soldiers and for payments to be made as commutation for actual service in the army.—See aurum tironum. Temonarii = collectors of the tax.

Kubitschek, RE 5A; Humbert, DS 1, 579.

Temperate. To moderate, to apply moderation. In the language of the imperial chancery the term is frequently used of the activity of jurisdictional officials in moderating the consequences of a strict application of the law.

Tempestas. A storm. A tempestas is among those unforeseen accidents (casus jortuiti), like inundation (vis fluminis — flood) which were accepted as an excuse for non-appearance in court.

Templa. Places (edifices) in which solemn sacrifices (e.g., auspicia) were celebrated. The establishment and surveyance of templa were duties of the augures. —See sacrificium.—Templa in the later Empire = churches.—C. 11.70; 71; 79; 7.38.

Wissowa, RE 2, 2337; Dorigny, DS 5; Blumenthal, Klio 27 (1934) 1.

Templa pagana. Pagan temples. They were ordered closed by Constantine (C. 1.11.1, a.d. 354).

Tempora. When referring to certain procedural institutions, terms fixed by law, within which certain remedies are available to parties involved in^a legal controversy (e.g., for an action, an appeal, an interdict, a restitutio in integrant).—C. 2.52; 7.63.

Temporalis (temporarius). Limited in time (quod tempore finitur), continuing for a limited time. Ant. PERPETUUS. See ACTIONES TEMPORALES, EXCEP

TIONS DILATORIAE.

Tempus. Time, a period. Cerium tempus = a fixed day (dies) or a fixed interval of time within which (intra certum tempus) Certain legal acts were to be performed in order to avoid loss. Ad (certum) tempus — for a fixed time. Ant. in perpetuum — forever. Justinian’s compilers in many instances replaced the terms established for certain legal acts in earlier law by colorless expressions, such as tempus legitimum, statutum, constitutum ( = legal, established time) thereby adopting the older texts to later legislation by which the pertinent terms were changed.— See PRIOR TEMPORE POTIOR IURE, ACCESSIO TEMPORIS, STATUTUM TEMPUS, TEMPORALIS, PLUSPETITIO, and the following items.

Pagge, NDI 12, 258 (s.v. termini) ; Milone, Dottrina ro~ mana del compute del tempo, ANap 1912; Guarneri-Citati, Indice' (1927) 87.

Tempus ad deliberandum (deliberationis). At the request of the creditors of an inheritance, the praetor could impose on the heir (heres voluntarius) a fixed term, normally one hundred days in which to decide whether or not to accept the inheritance.—See deli- berare.—D. 28.8; C. 6.30.

Tempus continuum. A period of time computed according to the calendar without the omission of any days. Ant. tempus utile.—See dies continui, annus continuus.

Tempus iudicati. The period of time granted to a defendant to comply with the judgment-debt (iudi- catum). The Twelve Tables fixed the term at thirty days (triginta dies) ; see dies iusti. In the cognitio extra ordinem the official who rendered the judgment could settle another period. In Justinian law the tempus iudicati was extended to four months.—See iudicatum.

Tempus legitimum. See legitimus, tempus.

Tempus lugendi. See luctus, sublugere.

Tempus statutum (tempora statuta). See statutum tempus, tempus.

Tempus utile. An interval of time in which certain days are not computed, to wit, days in whichf the action which had to be accomplished during a fixed time could not be taken. The reasons were either personal (captivity of the person who had to perform the action, his absence in the interest of the state, sickness, and the like) or official when judicial activity of the courts were suspended (see dies nefasti) or the magistrate before whom the action was to be performed could not be reached. Ant. tempus continuum.—See ANNUS utilis, dies utiles, iustitium. Kübler, RE 5A; NDI 12, 1; Ubbelohde, Berechnung des t. u. bei honorarischen Temporalklagen, 1891.

Temulatio. Drunkenness.—See impetus.

Tenere (aliquid). To hold a thing, to have physical power over a thing.—See detentio.

Tenere. (Intransitive.) To be legally valid (e.g., obligatio, stipulatio tenet).

Teneri. To be liable (under a statute = lege, under a senatusconsultum = senatusconsulto), to be suable (actione, interdicto).

Frese, ACDR Roma 2 (1935) 241.

Tenor. The content, text of a statute or a senatusconsultum, a legal rule.

Tenuiores. See humiliores. Ant. HONESTIORES.— See COLLEGIA FUNERATICIA.

Cardascia, RHD 28 (1950) 308.

Terentius Clemens. A little known jurist of the second century after Christ, author of an extensive treatise on the lex iulia et papia (in 20 books). He is not cited by later jurists, but his work was used by Justinian’s compilers.

Berger, RE 5A, 650.

Tergiversatio. (From tergiversari.) The withdrawal of the accuser from a criminal trial. The accused could demand that the trial be brought to an end so that he could sue the accuser for calumnia. The Senatusconsultum Turpillianum (a.d. 61) fixed a fine and declared the accuser who deserted the accusation (tergiversator) to be infamous. The accuser’s withdrawal could be declared expressly during the trial or manifested by his non-appearance in court. He might, however, justify his withdrawal by a reasonable excuse. Syn. deserere, desistere, destituere accusationem.—D. 48.16.—See CALUMNIA.

Taubenschlag, RE 5A; Lecrivain, DS 5; Μ. Wlassak, Anklage und Streitbefestigung im Kriminalrecht der Römer, SbWien 184, 1 (1917) 199; Levy, ZSS 53 (1933) 211; Lauria, St Ratti 1934, 124; Bohacek, St Riccobono 1 (1936) 361.

Terminare. To fix the boundaries of a municipality or of landed property belonging to a public corporate body or a private person through boundary stones (terminus, cippus, lapis). The judgment of arbitrators in a boundary dispute between two communities in the district of Liguria is preserved in an inscription, called Sententia Minuciorum.

Fabricius, RE 5A; Toutain, DS 5; for Sent. Minuciorum: Arangio-Ruiz, FIR 3 (1943) no. 163 (Bibl.).

Terminare litem. To end a controversy by judgment in a trial or by arbitration.

Termini. Boundary stones indicating the borders of a landed property. Syn. cippus, lapis.—D. 47.21.— See TERMINARE, ACTIO FINIUM REGUNDORUM, TERMINARE.

Toutain, DS 5, 121; Holland, Amer. Jour, of Archeology 37 (1933) 549.

Terminum movere (termini motio). To remove a boundary stone in order to change the existing ownership situation of landed property. According to an ancient provision (attributed to King Numa Pompilius), destruction or disarrangement of such stones which were considered as being under religious sanction. made the wrongdoer an outlaw (see sacer). An agrarian law by Caesar and enactments by the emperors Nerva and Hadrian ordered severe penalties for terminum movere. Syn. terminum avellere, auferre.—D. 47.21.—See actio de termino moto.

Taubenschlag, RE 5 A ; Lécrivain, DS 5.

Terrae motus. An earthquake. It is reckoned among the cases of vis maior; see casus fortuitus.

TerrenUS. See IUGATI0 TERRENA.

Terribiles libri. The “terrible books,” Justinian’s term for books 47 and 48 of the Digest (Tanta, 8c) which contain rules on crimes and penalties.

Territorium. The territory of a community or the whole land assigned to a colony; see universitas agrorum. Territorium is also the territory in which a magistrate exercised his jurisdictional activity. “A magistrate who exercises jurisdiction beyond his territory may be disobeyed with impunity” (D. 2.1.20). Toutain, DS 5.

Terror. See METUS.

Tertullianus. A little known jurist represented in Justinian’s Digest by five texts, author of Quaestiones and a monograph on Peculium castrense. His identification with the contemporaneous Church Father, Tertullianus (middle of the third century), often assumed, is very doubtful.

Steinwenter, RE SA, 844; Koch, ibid. 822; Kubler, Lehrbuch der Gesch., 1925, 278 (Bibl.) ; De Labriolle, Tertul- licn jurisconsulte, NRHD 30 (1906) 5; W. Kunkel, Herkunft und saziale Stellung der rom. Juristen, 1952, 236.

Tessera. A square tablet, a token used as a proof of identity, a ticket. Tesserae for public spectacles (ludi) were distributed to poor people by the curatores ludorum.—See the following items.

Lafaye, DS 5, 134; Rostowzew, R’óm. Bleitesserae, 1905.

Tessera frumentaria. A token for a certain quantity of grain (five modii monthly) which gratuitously was distributed to needy people by the government.—See FRUMENTATIO.

Rostowzew, RE 7, 179; Regling, RE SA, 852; Cardinali, DE 3, 271; Lafaye, DS 5, 133; Rota, NDI 12, 2; Van Berchem, Distributions de blé à la plèbe romaine (1939) 85.

Tessera hospitalis. A token of identity which permitted recognition of a stranger (hospes) to whom as an individual or to whose nation Rome granted HOSPITIUM.

Tessera militaris. A token of identity given to soldiers of a military unit through which they could be distinguished from the enemy and recognized as members of the Roman army. The tessera were provided with a catchword. An officer of lower rank charged with the distribution of the tessera =■ tesserarius.

Lafaye, DS 5, 135; Lammert, RE SA.

Tessera nummaria. Similar to the tessera frumentaria. It gave the right to a sum of money which some emperors used to distribute to the people as a gift.—See MISSILIA.

Cardinali, DE 3, 271.

Tessera nummularia. A tablet, attached to a sealed bag with coins, certifying that the coins are genuine. The statement was issued by a mint officer; see NUMMULARIUS, SPECTATOR.

Regling, RE 13; Laum, RE Suppl. 4, 78; Herzog, Abhandlungen der Giessener Hoehschulgesellschaft 1 (1919) ; Cary, JRS 13 (1923) 110.

Tesserarius. See tessera militaris.

Testamentarius. (Adj.) Pertaining to, connected with, or established in, a testament (e.g., hereditas, libertas, manumissio, tutor, tutela). Lex testamentaria = a statute which was concerned with the making of a testament; see lex furia, falsum (for Lex Cornelia).

Testamentarius. (Noun.) One who wrote a testament for another. Syn. scriptor testamenti.—See SENATUSCONSULTUM LIBONIANUM, QUAESTIO DOMITIANA.

Testamenti apertura. See apertura testamenti.

Testamenti factio. The legal capacity of a person to make a testament (ius testamenti faciendi). This testamenti factio (called in the literature by the nonRoman term, testamenti factio activa) is to be distinguished from the capacity to be instituted heir in a testament or to be rewarded with a legacy (testamenti factio passiva). For active testamenti factio the Roman juristic language used the expression testator habet testamenti factionem cum aliquo (cum herede, cum legatario) for the so-called testamenti factio passiva: heres (legatarius) habet testamenti factionem cum testatore. Testamenti factio also refers to the ability to witness a testament of a specific person. Testamenti factio was required on the part of the testator both when the testament was being made and at the time of his death. A testament made by a person without capacity did not become valid if he later acquired it. See fictio legis corneliae. Those unable to make a testament were slaves (except public slaves, servi publici, who could dispose of half their peculium by a last will), persons alieni iuris as long as they were under paternal power, persons below the age of puberty, lunatics (see furiosus), spendthrifts (see prodigus) and women (see coemptio fiduciae causa). From the time of Hadrian women were permitted to make a testament with the consent of their guardians (see tutela mulierum). In later postclassical law apostates and heretics were excluded from making a testament (see apostata, haeretici) and from taking under one. Only Roman citizens could be instituted heirs in the testament of a Roman citizen. For restrictions concerning women, see lex voconia. Persons alieni iuris could be heirs and legatees, but whatever they acquired went to their pater familias. A testator’s slave could be instituted as an heir only cum libertate, i.e., if he was freed in the same testament. Another man’s slave acquired all that he received from a testament for his master, provided that the latter had testamenti factio passiva. The institution of “uncertain persons’’ (see personae incertae) was not permitted. Exceptions in favor of the state, municipalities, charitable institutions (see piae causae) and collegia, were gradually admitted. See also postumi, dii, ecclesia. For the ability to witness a will, see testis ad testamentum adhibitus.—Inst. 2.12; D. 28.1.

De Crescenzio, ND I 12, 1, 964; Schulz, ZSS 35 (1914) 112; H. Kruger, ZSS 53 (1933) 505; Volterra, BIDR 48 (1941) 74; B. Biondi, Istituti fondanientali 2 (1948) 6.

Testamentum. A solemn act by which a testator instituted one or more heirs to succeed to his property after his death. The appointment of an heir was the fundamental element of a testament (see institutio heredis) ; a last will in which an heir was not appointed was not valid. A testament could contain other dispositions, such as legacies {legata, fideicommissa), manumission of slaves, appointment of a guardian. Since a testament “derived its efficiency from the institution of an heir” (Gaius, Inst. 2.229), all dispositions made in the testament prior to the institution of the heir were null under the classical law. This principle was abolished by Justinian. For the various forms and types of testaments, see the following items. A will could be revoked by a later one; see revocare testamentum. The later testamentum invalidated the first since nobody could leave two testaments. See codicilli. The existence of a valid testament excluded the admission of heirs on intestacy. Syn. tabulae testamenti, tabulae.—Inst. 2.10; 17; D. 28.1; 29.3; 35.1; C. 6.23. —See testamenti factio, contextus, supprimere TABULAS, SENATUSCONSULTUM libonianum, querela INOFFICIOSI TESTAMENTI, LEX VOCONIA, BONORUM POSSESSIO SECUNDUM TABULAS, NUNCUPATIO, MANCIPATIO FAMILIAE, FAVOR TESTAMENTI, VOLUNTAS DEFUNCTI, LINUM, MANUMISSIO TESTAMENTO.

Kubler, RE 5A; Cuq, DS 5; Arangio-Ruiz, FIR 3 (1943) no. 47 ff.; C. Appleton, Le testament romain, 1903 ( = Rev. gen. de droit 27, 1902/3) ; Liebenthal, Ursprung und Entwicklung des rom. Testaments, 1914; A. Suman, Favor testamenti e voluntas testantium, 1916; Levy-Bruhl, NRH 44 (1920) 618; 45 (1920) 634; Goldmann, ZSS 51 (1931) 223; David, ZSS 52 (1932) 314; F. Wieacker, Hausgenossenschaft und Erb einset sung. Ober die Anfange des rom Testaments, Fschr Siber 1940; Volterra, BIDR 48 (1941) 74; B. Biondi, Successione testamentaria, 1943; Van Oven, in the collective work Het testament (Arnhem, 1951) 9.

Testamentum apud acta conditum. A testamentum made before a judicial or municipal authority. An official record was made and entered in the archives of the office.

Testamentum calatis comitiis. See comitia calata. The solemn performance before the popular assembly was a kind of adoption to have an heir in the event of the testator’s death; its primary purpose was to secure his own and his ancestors’ worship.

B. Biondi, Successione testamentaria. 1943, 47; C. Cosentini,.87 sui liberti 1 (1948) 17; M. Kaser, Das al from. Ins (1949) 148 (Bibl.).

Testamentum caeci. The testament of a blind man. Under the classical law he could make a testament per aes at libram. In later law a written testamentum was permitted in the presence of an additional eighth witness (or a city official, tabularius) who wrote down the testament as dictated by the testator before seven witnesses.

Testamentum desertum. See testamentum destitutum.

Testamentum destitutum. A testament, all the heirs of which died before the testator or before the acceptance of the inheritance, or refused to accept it. Syn. testamentum desertum (= an abandoned testament). In such a case succession on intestacy took place.—See LEX VOCONIA.

Testamentum duplex. See testamentum pupillare.

Testamentum falsum.' A forged testament. It is null since it does not express the will of the testator.— See FALSUM, SENATUSCONSULTUM LIBONIANUM.

B. Biondi, Successione testamentaria (1943) 590.

Testamentum holographum. A testament written by the testator in his own hand. In classical law such a testament was subject to all the requirements of a written testament. Only an imperial constitution (Nov. 21.2 of Theodosius II and Valentinian III of a.d. 446) recognized the validity of such a testament without witnesses. The constitution was, however, not accepted into Justinian’s Code.—See testamentum PARENTIS INTER LIBEROS, TESTAMENTUM MUTI.

Testamentum imperfectum. A testament in which the rules of form were not fully satisfied, in particular when the witnesses did not sign or seal it. It was void.

Testamentum in procinctu. A testament made by a soldier when a battle was imminent or, at least, when the army was in a permanent camp.

Zocco-Rosa, RISG 35 (1903) 302; idem, Il t. i. p., 1910;

C. Cosentini, St sui liberti 1 (1948) 21.

Testamentum iniustum. A testament made by a person who backed testamenti factio or one in which an heir {heres) was not appointed. Ant. testamentum iustum.—D. 28.3.

Testamentum inofficiosum. See querela inofficiosi TESTAMENTI, TESTAMENTUM RESCISSUM.

Testamentum inutile. An invalid testament.—See

TESTAMENTUM RUPTUM, TESTAMENTUM NULLUM.

Testamentum irritum. A testament which was valid when the testator made it, but which became void because he lost his capacity (testamenti factio) later (e.g., through capitis deminutio when he lost liberty or citizenship).—D. 28.3.

Testamentum iure factum. A testament made by a testator able to make a will (see testamenti factio) with all the formalities prescribed for its validity observed.

Testamentum iure praetorio factum. See testamentum PRAETORIUM.

Testamentum iustum. See testamentum iniustum.

Testamentum militis. A soldier’s testament. It was exempt from all formalities. Soldiers might make a testament “in any way they want and can” (D. 29.1.1 pr.). Even a will written by a soldier, dying in battle, with his blood on the scabbard of his sword or with the point of the sword on the sand, was valid. Several legal rules which were binding with regard to all other testaments were not applicable to a testamentum militis. A soldier could make two testaments, and he could dispose of a part of his property while the remainder went to his heirs on intestacy. Neither querela inofficiosi testamenti nor Lex Falcidia were applicable to a soldier’s testament. A testamentum militis was the testament the soldier made during his service. It was valid for one year after his discharge. Justinian made, however, an important change, restricting the privileges to soldiers engaged in a battle with the enemy. Syn. testamentum iure militari factum.—Inst. 2.11; D. 29.1; 37.13; C. 6.21. See TESTAMENTUM IN PROCINCTU.

Cuq, DS 5, 140; Kübler, RE 5, 1000; Arangio-Ruiz, BIDR 18 (1906) 157; Calderini, Atene e Roma, 1915, 259; Ta- massia, AVen 85 (1927) ; Weiss, ZSS 45 (1934) 567; Guarino, RendLomb 72, 2 (1938/9) 355; A. Haegerstroem, Der röm. Obligationsbegriff 2 (1943) Beil. 52; B. Biondi, Successione testamentaria (1943) 73; S. v. Bolla, Aus röm. und bürgerlichem Erbrecht (1950) 1.

Testamentum muti (surdi). A testament of a dumb (or deaf) man. It should be written in his own hand according to an enactment by Justinian.

Testamentum nullum. A testament which is void from the beginning, e.g., when the testator lacked testamenti factio, when the prescribed forms were not observed, or when there was no appointment of an heir (see heredis tnstitutio).

Testamentum parentis inter liberos. A testament by which a father {pater familias) disposed of his property in favor of his children alone. Such a testament could be made without witnesses if the testator wrote it in his own hand and gave the exact names of the heirs and their shares. It was a different act when a father ordered the way in which his property was to be divided among his children on intestacy {divisio inter liberos}. This was no testament at all and the document had to be signed by the father and the children.

Rabel, Elterliche Teilung. Fschr zur 49. Versammlung deutscher Philologen, Basel, 1907; B. Biondi, Successione testamentaria (1943) 70; Solazzi, SDHI 10 (1944) 356.

Testamentum per aes et libram. See mancipatio FAMILIAE, FAMILIAE EMPTOR, NUNCUPATIO, PER AES ET LIBRAM, TESTIMONIUM DOMESTICUM.

Kamps, RHD 15 (1936) 142; Amelotti, SDHI 15 (1949) 34.

Testamentum per nuncupationem. See nuncupatio. According to the civil law {ius civile) the oral declaration made before seven witnesses should be pronounced in a prescribed formula (Gaius, Inst. 2.204) in which the testator referred to his detailed written dispositions. The praetor, however, granted BONORUM POSSESSIO SECUNDUM TABULAS even when the prescribed formula was not pronounced. Later imperial legislation recognized a merely oral testament {testamentum per nuncupationem), without any written document, when the testator announced his will and appointed heirs in the presence of witnesses. An heir thus appointed — heres nuncupatus.—See TESTAMENTUM PER AES ET LIBRAM.

Solazzi, SDHI 17 (1951) 262, 18 (1952) 212.

Testamentum (iure, rite) perfectum. See perfectus, TESTAMENTUM IMPERFECTUM.

Testamentiim pestis tempore. A testament made in time of pestilence. The witnesses were not bound to be present simultaneously.

Testamentum posterius. A later testament made by a testator in order to revoke an earlier one. See revocare testamentum. The first testament was “broken” (testamentum ruptum).

Kubler, RE 5A, 1008.

Testamentum praetorium. A testament valid according to the praetorian law (but invalid under civil law). The praetorian Edict granted bonorum possessio secundum tabulas if some of the formalities required by ius civile {mancipatio familiae, nuncupatio) had not been observed and a written will was made in the presence of seven witnesses and sealed by them. —See TESTAMENTUM PER NUNCUPATIONEM.

B. Biondi, Successione testamentaria (1943) 49.

Testamentum principi oblatum. A testament consigned to the emperor. Later, deposition in a public archive sufficed.

Testamentum pupillare. That part of a father’s testament in which he made a testament for a child then under his paternal power and below the age of puberty for the event that the child died before reaching puberty. See substitutio pupillaris. Later, it became customary to write down the child’s testament {testamentum filii, testamentum pupillare) in a second, separate document {tabulae secundae) in order to avoid the child’s heir becoming known when the father’s testament was opened upon his death. The prospective heir of the child who would inherit only if the child died before reaching puberty, might be interested in the child’s premature death and therefore it was advisable to keep secret the content of the testamentum pupillare. In the case of a separate document for the substitutio pupillaris the father’s testament is called testamentum duplex, the tabulae secundae being only a supplement to the real testament which dealt with the succession to the father’s property {tabulae primae).

B. Biondi, Successione testamentaria (1943) 254.

Testamentum rescissum. A testament rescinded as inofficiosum as a result of a querela inofficiosi testamenti.—See rescindere.

Testamentum ruptum. A testament which was �?�?broken” by a later event (e.g., by the birth of a posthumous child who was omitted in the father’s testament, see postumus suus) or was revoked by the testator through a later testament; see testamentum posterius.—D. 28.3.

Kiibler, RE 5A, 1008; Sanfilippo, AnPal 17 (1937) 73; De Sarlo, AG 142 (1952) 69.

Testamentum ruri conditum. A testament made in the country by a rustic person. In Justinian law such a testament was valid if only five persons were present. If some of the witnesses were illiterate others might sign for them.

Testamentum surdi. See testamentum muti.

Testamentum tripertitum. A particular type of testament the requirements for which were fixed in a late imperial constitution (C. 6.23.11, a.d. 429) : it had to be made without interruption (uno contextu, see contextus), in the presence of seven witnesses (who had to subscribe and seal it), and, in addition, the testator had to sign it ("subscripsi” = “I signed”). If he was illiterate, another could sign for him. The term tripertitum (— tripartite), used by lust., Inst. 2.10.3, derives from the fact that in the formalities mentioned three sources of law are combined: ius civile, ius praetorium and imperial legislation.

Riccobono, Archiv fiir Rechtsphilosophie 16 (1922) 503.

Testari. To be a witness to a legal act or transaction, to testify, to make a legally important declaration before a witness. Hence testari also means to invite another person to be a witness, and consequently to let the witness sign a written document to be used as evidence (in testatum redigere). In some texts testari is syn. with testamentum facere.—See testatio, testis, testimonium.—D. 29.6; C. 6.34.

Wenger, RE 2A, 2427; Schulz, J RS 33 (1943) 61; Kunkel, ZSS 66 (1948) 425.

Testatio. A document containing a declaration made in presence of, and signed by, witnesses for the purpose of evidence. Testatio is also the oral or written testimony of a witness.—See testis, contestatio.

Kaser, RE 5A, 1030; Vazny, AnPal 8 (1921) 481; Taubenschlag, ZSS 38 (1917) 255; Weiss, BIDR 51/52 (1948) 316; Arangio-Ruiz, RIDA 1 (1948) 18; J. P. P. Levy, RIID 30 (1952) 453.

Testato. (Adv.) In the presence of a witness or witnesses (e.g., to notify someone of something legally important to another, to summon, to make a declaration). Testato decedere (mori) = to die after having made a testament. Ant.* intestato.

Testator (testatrix). One who has made a testament. The wishes of a testator are referred to by expressions like velle, nolle, scribere, iubere, mandare.

Testificari (testificatio). To testify, to prove through witnesses.—See TESTATIO.

Testimoniales. (Sc. litterae.) A written official certificate (in later imperial constitutions).

Testimonium. In a broader sense, any kind of evidence; in a narrower sense, the testimony of a witness; see testis. Testimonium of a witness was given in person, normally under oath.—See testimonium PER TABULAS.

Kaser, RE 5A; Lecrivain, DS 5; Berger, OCD.

Testimonium domesticum. The testimony of a witness who lived in the household of the person on whose behalf he was testifying. In a testament urn per aes et libram persons subject to the paternal power of the testator were excluded from acting as witnesses. In general a testimonium domesticum was not considered a probatory evidence.

Testimonium falsum. False testimony. A witness who knowingly gave false testimony in a capital trial was considered a murderer and punished under the lex Cornelia de sicariis. The Twelve Tables fixed the death penalty for testimonium falsum; the accused was executed by being thrown from the Tarpeian rock (see deicere de Saxo tarpeio). Under the later law the penalty was exile.—See falsum.

Kaser, RE 5A, 1053; Taubenschlag. RE 5A; Lecrivain, DS 5; Pringsheim, RIDA 6 (1951) 161.

Testimonium unius. (Sc. testis.) The testimony of a single witness. It is without any probatory value. An imperial constitution of a.d. 334 (C. 4.20.9) ordered that the testimony of a sole witness should not be heard at all.

Testimonium per tabulas. A voluntary testimony given extrajudicially in writing. Normally it had little authority except if the witness could not appear in court personally because of age, absence, or bad health.

Testis. A witness. There were witnesses whose presence was necessary for the validity of an act or transaction (e.g., a testament, mancipatio, acts per aes et libram, etc.) and witnesses in a trial, civil or criminal, who testified about facts. Only Roman citizens above the age of fourteen could witness solemn legal acts. Excluded were persons with certain physical defects which made it impossible for them to perceive actions or words, lunatics, and individuals convicted of crime. The Twelve Tables already contained the rule that a witness to a legal transaction could not afterwards refuse to testify if his testimony was required in a trial. Should he do so, he became unable to serve as a witness in the future and could not ask others to witness his acts (improbus et intesfabilis). Thus, he lost the ability to make a testament. For solemn acts the number of witnesses was prescribed (usually seven), for other acts, in which their presence was not required by law but was requested by a party for the purpose of evidence, two witnesses were sufficient. Near kinship with a person involved in the transaction, living with him in the same household (see testimonium domesticum), close friendship or open enmity barred a witness from giving testimony. Descendants were not admitted to testimony in matters concerning their ascendants and vice versa; similarly freedmen and their descendants with regard to their manumitters. There were no strict rules for the evaluation of the testimony of witnesses and of other means of evidence. The judges were advised to “explore exactly whether a witness was worthy of confidence” (D. 22.5.3 pr.) through examination of his social situation, his financial condition, his moral reliability (e.g., whether he would do anything for profit) and the like. The directive given by the emperor Hadrian to a high official is characteristic: “you should estimate through the judgment of your mind (ex sententia animi tai) what you should assume to be true and what to be no more than barely proved” (D. 22.5.3.3).—D. 22.5; C. 4.20).—See testimonium, TESTATIO, SUBSCRIPTIO, INTESTABILIS, VACILLARE, SENATUSCONSULTUM SILANIANUM (concerning testimony of slaves), tormenta, antestatus, litis contestatio, and the following items.

Kaser, RE 5A; Lecrivain, DS 5, 152; Berger, OCD (s.v. testimonium) ; Messina, Riv. pcnalc 73 (1911) 278.

Testis ad testamentum adhibitus. A witness present at the making of a testament. The capacity of a person to be a witness to a specific testament is also termed testamenti factio. The witness had to be invited (see testis rogatus)—not forced—to serve and to be present near the testator during the entire act. He should know that it was a will which he witnessed, but the contents could remain unknown to him. At the opening of the testament (see apertura testamenti) he had to recognize the authenticity of his seal. Specific restrictions were imposed with regard to witnesses belonging to the immediate family of the testator. See testamentum domesticum. Women and slaves were excluded. The rules concerning the admission of a person (or persons subject to his paternal power) to witness a testament in which he was instituted as an heir were finally settled by Justinian who excluded them all. Legatees, however, were admitted.—See testamentum, quaestio DOMITIANA, SCRIPTOR TESTAMENTI.

Kaser, RE 5A, 1041; B. Biondi, Successione testamentaria (1943) 59.

Testis idoneus. A person legally able to be a witness. There were general reasons for excluding a person from being a witness in all cases (see testis) and specific reasons which applied only in particular cases, the hindrance being a special relationship between the proposed witness and the acting person or the act itself. See TESTIS, TESTIMONIUM DOMESTICUM, TESTIS ad testamentum adhibitus. No one could be a witness if forced or ordered to do so by the acting person.—See testis rogatus.

Testis in re propria (sua). “No one is a proper witness in his own matter” (D. 22.5.10).

Testis rogatus. A witness who was requested (not forced or ordered) to be a witness. He had to be informed only about the nature of the act he was to witness.

Texere (textura). For weaving one’s wool or another material into another man’s cloth, see intexere.

Thalelaeus. A law teacher (probably in Beirut), contemporary with Justinian, author of an extensive commentary on Justinian’s Code. His werk was abundantly excerpted for the basilica, their scholia and for later Byzantine legal works.

Kubier, RE 5A (s.v. Thalelaios, no. 4) ; Berger, BIDR 55-56 (1952) 124.

Theatrum. Theatres were public property (res publicae, res universitatis) and could not be in private ownership. Admission was free. A person who was prevented from entering a theatre could sue the opponent by actio iniuriarum (see iniuria). An outrage inflicted on a person in a theatre was treated as iniuria atrox. But a creditor could summon his debtor to court in a theatre (in ius vocatio).—See LEX ROSCIA, LEX IULIA THEATRALIS.

Navarre, DS 5, 204; A. Guichard, De la legislation du theatre ä Rome (These Douai, 1880).

Theodorus Scholasticus. Born in Hermoupolis in Egypt (hence he is called Hermo polit anus or Thebanus), a juristic writer of the second half of the sixth century. He wrote a summary (index) of Justinian’s Code and an abridged edition of the emperor’s Novels (Epitome, Syntomos Nearon).

Kiibler, RE 5A. 1863 (no. 43) ; Zachariae, Anccdota (1843) p. XXII and 7 (edition of the Syntomos ton nearon diataxeon) ; Heimbach, Basilica 6 (1870) 80, 88; J. A. B. Mortreuil, Histoire du droit bysantin 1 (1843) 306.

Theophilus. A law teacher in Constantinople, one of the most active collaborators of Justinian in the codification of the laws. He was a member of the commission which compiled the first Code and the Digest, and together with Dorotheus he composed the Institutes (institutiones iustiniani). He wrote a summary of the initial part of the Digest and a paraphrase of Justinian’s Institutes, a work which despite some occasional errors is instructive from different points of view.------------------ See PARAPHRASIS INSTITUTIONUM.

Kiibler, RE 5A, 2138 (no. 14).

Thesaurensis. An official of the later Empire charged with the administration of public (imperial) storehouses. See THESAURUS.

Dorigny, DS 5, 224; O. Hirschfeld, Kaiserliche Verwaltungsbeamte² (1905) 308.

Thesauri. (In the Empire.) The treasury of the emperor. It was administered by the procurator thesaurorum, in the later Empire by the comes thesauro- rum who was among the high officials in charge of the imperial household.

O. Hirschfeld, Kaiserliche Verwaltungsbeamte² (1905) 307. Thesaurus. A treasure-trove, a valuable movable (primarily money) which had been hidden for so long a time so that its actual owner was unknown and his identity could no longer be established. The finder of a thesaurus (inventor thesauri) could keep it for himself if he found it on his own land or in a sacred place (locus sac er or religio sus). If he found it in another’s land by accident, only one-half belonged to him and the other half to the landowner. If the thesaurus was found in ground which was a locus publicus, the finder shared the thesaurus with the fisc. A finder who did not report his find to the fisc when the latter was entitled to a half, lost his share and had to pay the entire amount of the thesaurus to the fisc. Finding a thesaurus in another’s land through deliberate search gave the finder no right at all.— C. 10.15.

Kùbler, RE 6A ; Dorigny, DS 5 ; Ravetta, L'acquisto di tesoro, 1910; Bonfante, Mèi Girard 1 (1912) 123 (= Scritti 2 [1926] 904); Schulz, ZSS 35 (1914) 94; Appleton, St Bonfante 3 (1930) 1; G. Hill, Treasure-trove in law and practice (1936) 5; Biscardi, StSen 54 (1940) 297; Dull, ZSS 61 (1941) 19; Hubaux and Hicter, RIDA 2 (1949) 425.

Thesaurus. (In administrative law.) A storehouse. See HORREUM, THESAURI.

Tiberis. The river Tiber. For venditio trans Tiberini (— selling a free person beyond the Tiber), see SERVUS, ADDICTUS, TRANS TIBERIM.

Tignum iunctum. A beam used for the construction of a house ; in a broader sense, any material used for that purpose. According to the rule, superficies cedit solo (see superficies) the owner of the building became owner of the material used even if it originally belonged to another. The latter could not sue the owner for the recovery of the material as long as the house stood firm; if it collapsed or if the material was separated in some other way, he might then claim his property. He had an action, however, the actio de tigno iuncto, against the owner for double the value of the material if the latter was used in bad faith (e.g., if it was stolen). A claim for separation of the material was not permissible. Justinian introduced the ius tollendi in favor of the owner of the material.—D. 47.3.—See servitus tigni immittendi.

Chapot, DS 5 ; Ehrhardt, RE 6A ; E. Heilborn, T. i., plantatio und accessio (Diss. Breslau, 1907) ; Riccobono, AnPal 3-4 (1917) 445; E. Levy, Konkurrenz der Aktionen 1 (1918) 420; R. Monier, Le t. i., 1922; Berger, SV Riccobono 1 (1936) 623; Pampaioni, Scritti giur. 1 (1941, ex 1883, 1885) 217, 485; idem, BIDR 21 (1909) 205.

Timor. Fear, anxiety. “A groundless fear is no just excuse” (D. 50.17.184).—See metus.

Tingere. To dye. If one dyed another person’s fabric (wool) by applying a product (e.g., purple) of his own, the owner of the material remained owner of the colored stuff.—See fullo.

Tipoukeitos. A peculiar Byzantine juristic product of the late eleventh century, a repertory, or kind of “table of contents,” indicating all the topics dealt with in the basilica, in the order of their titles and sections. The origin of the name is the Greek phrase “ti pou keitai” ( — what is where, sc. in the Basilica). The author was a judge, Patzes.

Recent edition: Μ. Kritou tou Patze Tipoukeitos sive Librorum 60 Basilicorum Summarium 1 (books 1-12, 1914) by Ferrini and Mercati, 2 (books 13-23, 1929) by Doelger, 3 (books 24-38, 1944) by Seidl and Hoermann, in Studi e Testi, vol. 25, 51, 107 (Città del Vaticano).—Noailles, Mèi Cornil 2 (1926) 177; Seidl, Die Basiliken des Patzes, Fschr Koschaker 3 (1939) 294; H. Miiller, Der letzte Titel des XX. Buches der Basiliken des Patzes (Diss. Greifswald, 1940); Berger, Trad 3 (1945) 394 (= BIDR 55-56 [1951] 277); Wenger, ibid. 10 (Bibi.); Seidl, Byzantinische Ztschr. 44 (1951) 534.

Tiro. In military service a recruit, a soldier newly enlisted, without sufficient training. The tirones were mostly 17 to 20 years of age.—C. 12.43.—delicta militum.

Lammert, RE 6A; Cagnat, DS 5.

Tiro. A beginner in a profession, also in that of a lawyer. Tiro was also a young man solemnly introduced in the jorum by his parents for the first time. On this occasion he wore the toga praetexta (toga civilis).

Tirocinium. The state of being a tiro (a beginner in military service, in a profession or in political life). Hence tirocinium is used in the sense of lack of experience.

Regner, RE 6A, 1450 ; S. Cugia, Profili del tirocinio industriale, 1922.

Tironatus. See tirocinium.

Titles. See RAMNES.

Schachermeyr, RE 6A.

Titii sodales. A college of priests charged with special religious duties (sacrifices), the nature of which is not quite clear.

Weinstock, RE 6A; Cagnat, DS 5.

Titius (Lucius Titius). A fictitious name frequently used in juristic writings to indicate a party involved in the case under discussion.—See nomen.

Tituli ex corpore Ulpiani. (Also called Epitome Ulpiani or Regulae Ulpiani in the literature.) An apocryphal collection of legal rules, attributed until recent times to Ulpian. It was perhaps written by a later unknown jurist about the end of the third century or shortly thereafter. Many rules of the collection remind one of the Institutes of Gaius.

Edition: F. Schulz, Die Epitome Ulpiani des Cod. Vat. Reg. 1128 (1926).—E. Albertario, Studi 5 (1937) 491; Volterra, RStDIt 8 (1935) 390 (Bibl.); F. Schulz, History of R. legal science, 1946, 180.

Titulus. A dedicatory or honorary inscription on a temple, gravestone, or building; a placard placed on a house to indicate that there is an apartment for rent; a tablet hung on a slave offered for sale in the market. Titulus is also the title of a book, of a chapter in a juristic work, or of a section in the praetorian Edict (e.g., titulus de in ius vocando}.— The word has a specific meaning in connection with the acquisition of ownership, predominantly in the field of USUCAPIO.

Schulz, ZSS 68 (1951) 21.

Toga. The outer garment (robe, cloak) of a Roman citizen when he appeared in public (at the jorum} ; hence it was called vestis jorensis (garment for the jorum}. The use of a toga was prohibited to soldiers, foreigners, and persons condemned to exile. Originally women also wore a toga, but it was soon replaced by the stola, the toga being reserved for women of ill fame condemned in a criminal trial (iudicium publicum} or for adultery, and for prostitutes. The normal toga of a Roman citizen (of white wool) was also called toga pura or libera.—See trabea, clavus.

Courby, DS 5; Wright, OCD-, L. Wilson, The R. toga (1924).

Toga Candida. See candidatus.

Toga picta. A purple robe embroidered with gold. It was one of the insignia of higher Republican officials, worn only on the occasion of a triumph (see triumphus) or other solemn celebration. The custom was adopted by the emperors. Syn. toga pal- mata.—See toga purpurea.

Ehlers, RE 7 A, 505; Courby, DS 5, 349.

Toga praetexta. A white robe with a purple border stripe. It was one of the insignia of consuls, praetors, and priests. In the Principate the emperor wore a toga praetexta when he appeared within the walls of Rome in public. Young men over fourteen wore the toga praetexta as a sign of manhood before they put on the toga virilis. Hence togatus {praetextatus} = a youth in the age of manhood.—See impubes.

Goethert, RE 6A, 1659 ; Regner, ibid. 1451.

Toga pura. See toga.

Toga purpurea. A toga of purple color. It was the toga of the kings. Later it was used by a triumphant army commander when he entered Rome after a victorious war; see triumphus.—See toga picta.

Toga sordida. A dark grey toga worn when one was mourning or appeared in court as an accused.

Toga virilis. The normal white toga of a Roman citizen. There was no fixed age for wearing the toga virilis; normally young men between sixteen and eighteen put on the toga virilis. After a solemn ceremony which usually took place at a religious feast, dedicated to Bacchus, the youth wearing the white toga was introduced to the forum accompanied by his parents and relatives, after which he ceased to wear the toga praetexta.—See impubes.

Regner, RE 6A, 1451; Hunziker, DS 5.

Togatus. A Roman citizen wearing (or having the right to wear) the toga virilis. In later juristic language togatus was any state official wearing the toga as his official robe. The term was also applied to.lawyers pleading in court {togatus fori}.

Steinwenter, RE 6A, 1666 ; Philipp, ibid. 1662; Ehlers, RE 7A, 505.

Tollere. See IUS TOLLENDI.

Tollere altius. See servitus altius non tollendi. Tollere legem. To abolish a statute by promulgating a new one.

Tollere liberum. To lift a child. According to an ancient custom when a married woman bore a son, the father {pater jamilias) lifted him up from the earth, thus denoting symbolically that he was accepting him in the family as his son. The act had no legal significance; the omission of this gesture was without legal effects.

Declareuil, Mel Girard 1 (1912) 326; Perozzi, St Simon- celli (1917) 213 (= Scritti 3 [1948] 93; Berger, Jour, of Juristic Papyrology 1 (1945) 30 (= BIDR 55-56 [1951] 114); Volterra, Fschr Schulz 1 (1951) 388; idem, lura 3 (1952) 216.

Tolli. With reference to legal acts and transactions, to be annulled, to become void (e.g., a testament, an agreement, an obligation, a stipulation). Actio tolli- tur = the right to sue a person is abolished.

Tormentum. Torture. It was applied in Roman criminal procedure as a means to extort {torquere} from a person suspected of a crime a confession or a testimony from a witness. On the other hand, tormentum was applied as a penalty, in particular as an aggravation of the death penalty, in the Republic only to slaves, in the Empire also to free citizens, as, e.g., in the case of crimen maiestatis or murder through poisoning. From the late second century on, distinction was made between honestiores and humiliores inasmuch as with regard to the former torture was applied only in the case of heinous crimes {maiestas, magia}. In the later Empire torturing became more frequent.—The use of torture in questioning witnesses {tormentum became almost synonymous with quaestio} was severely criticized by jurists and by some emperors. “Many persons undergo torture through endurance so that by no means can the truth be extorted from them; others instead are so unable to suffer pains that they prefer to lie than to be tormented. It so happens that they confess in different ways incriminating not only themselves but also others” (D. 48.18.1 pr.). A slave could not be compelled by torture to testify against his master. Torture as a penalty for crimes committed by slaves was practiced in a large measure. Masters were permitted to torture their slaves if the crime was directed against the masters themselves (until the third century). In other cases permission to torture had to be secured from the authorities. For the torture of slaves suspected as murderers of their master, see senatusconsultum silanianum. Torture was applied as a penalty against an accuser who initiated a

criminal trial against another for treason (crimen maiestatis) and was not able to prove his accusation. —Tormentum is also the instrument used for torturing.—D. 48.18; C. 9.41.—See quaestio per tormenta, TALIO, FUSTIS, SUPPLICIUM FUSTUARIUM, FLAGELLUM, VERBERA, MALA MANSIO.

Ehrhardt, RE 6A; Lafaye, DS 5; Berger, OCD, Torquere. See tormentum.

Torrentia flumina. See flumina torrentia.

Tortor. One who executed the torture, the torturer. He is to be distinguished from the quaesitor, the official who questioned the accused or a witness.— See TORMENTUM, CARNIFEX.

Trabea. A toga with purple and scarlet worn by the kings and in the Republic by consuls on specific solemn occasions. Hence trabea is used in the meaning of consulship, and the adj. trabeatus is syn. with consularis. Certain high priests, as the flamen Dialis, and persons of equestrian rank also wore the trabea.

Schuppe, RE 6A; Courby, DS 5.

Tractare. To treat. The term refers to the treatment to be applied to certain categories of criminals. The verb is also used of the administration of property or the management of one’s own or another’s affairs (tractare bona, negotia, pecuniam). With reference to juristic discussions (oral or written) tractare = to deal with, to discuss a problem (quaestionem, materiam). Hence tractatus = a juristic dissertation.

Tractatores. Officials in the financial administration (in the later Empire) subordinate to the praefectus praetorio.

Tractatus. See tractare.

Tractatus de gradibus cognationum. See de gradibus COGNATIONUM.

Tractatus de peculiis. See de peculiis.

Tractoria. A written official permission for the use of the state post. The tractoria implied also board and lodging at the expense of the state for travelers in official mission. From the second half of the fourth century on the tractoria were signed by the emperor.—C. 12.51(52).

Ensslin, RE 6A; Humbert, DS 5; Ganshof, TR 8 (1928) 69.

Tractus. A larger tract of land (a district) in the emperor’s domain, 'administered by a procurator who also exercised certain jurisdictional functions in the name of the emperor in disputes between the principal lessee of the domain (conductor) and the sublessee (colonus). Syn. regio.

Tractus temporis. A lapse (a period) of time. A legal rule (D. 50.17.29) stated: “what is invalid at the beginning cannot become valid through lapse of time (tractu temporis).”—See initium.

Tradere. To teach. Justinian used frequently the term in his constitution omnem as syn. with docere, when he dealt with the courses which the teachers of law

739 had to offer in the law schools.—See traditur, traditio.

Traditio. (From tradere.) The transfer of ownership over a res nec mancipi (see res mancipi) through the handing over of it to the transferee by the owner. A simple delivery of res mancipi did not transfer ownership (see mancipatio), the transferee acquired only the so-called bonitary ownership (see in bonis esse) which could be converted in quiritary ownership (under ius civile) through usucapio. The classical traditio required a just cause (iusta causa) since, being only a transfer of possession of a thing from one person to another, it had, in order to transfer ownership, to be based on a special legal relationship of an obligatory or another nature between transferor and transferee. “A simple delivery of a thing never transfers ownership, unless a sale or another just cause preceded the delivery” (D. 41.1.31 pr.). A iusta causa also was a donation. There was, however, no just cause if the transaction, which was followed by traditio, was prohibited by law, as, e.g., a gift between husband and wife (see donatio inter virum et uxorem). Transfer of ownership could be performed? only by the owner of the thing or by a person authorized by him or by the law (see alienatio). Normally traditio was a material act : the effective delivery of the thing to be transferred from hand to hand which, when movables (money) were concerned, was very simple. The delivery of an immovable (a piece of land) was executed through introduction of the acquirer on the land and his walking around the boundaries of the property. In later development the acquirer’s entering on the premises or even a more simplified formality sufficed ; see traditio longa manu, traditio ficta, claves, custos. Traditio was an institution iuris gentium which arose from relations with foreigners. It was therefore available to peregrines. With regard to provincial land (fundus provincialis) it was the only mode of acquisition of ownership. In Justinian’s law the distinction between res mancipi and res nec mancipi having been abolished, the traditio served as a general means for the transfer of ownership. The compilers substituted in many texts traditio for mancipatio which was no longer actual, and tradere for mancipio dare (or accipere).—D. 21.3; 41.1; 41.2; C. 7.32.—See exceptio rei ven- DITAE ET TRADITAE.

Ehrhardt, RE 6A; Beauchet and Collinet, DS 5; Aru, NDI 12; P. De Francisci, Il trasferimento della proprietà (1924) ; Betti, St Bonfante 1 (1930) 305; idem, BIDR 41 (1933) 143; H. Lange, Das kausale Element im Tat- bestand der klass. Eigentumstradition, 1930; Monier, St Bonfante 3 (1930) 219; A. Ehrhardt, Iusta causa traditio- nis, 1931 ; D. Hazewinkel-Suringa, Mancipatio en t. (Amsterdam, 1932) ; G. G. Archi, Il trasferimento della proprietà, 1934; H. H. Pfliiger, Zur Lehre vom Erwerb des Eigentums, 1937; Thayer, BI DR 44 (1937) 439; S. Romano, Nuovi studi sul trasferimento della proprietà, 1937 ;

C. A. Funaioli, La tradisione, 1942, 5; Μ. Kaser, Eigentum und Besitz (1943) 195; Voci, SDHI 15 (1949) 141; J. G. Fuchs, lusta causa traditionis und romanist. Wissenschaft (Diss. Basel, 1949) ; Levy, West Roman vulgar law, 1952, passim; van Oven, TR 20 (1952) 441.

Traditio brevi manu. Occurred when the transferee held already the thing, the ownership of which had to be transferred, but not as its owner, as, e.g., when a depositee or commodatarius of a thing acquired the ownership of it through sale or donation. A handing over of the thing in such a case was superfluous.— See CONSTITUTUM POSSESSORIUM.

Stella-Maranca, NDI 2, 544; Schulz, Einführung in das Studium der Digesten (1916) 62; Arno, StPav 16 (1931). Traditio chartae (per chartam). The delivery of an immovable through the handing over of a written deed of conveyance of property to the transferee. This form of traditio was practiced in the later Empire. The document was termed also epistula traditionis. Syn. TRADITIO INSTRUMENTI.

Brandileone, St Scialoja 1 (1905) 3; Riccobono, ZSS 33 (1912) 277; H. Steinacker, Die antiken Grundlagen der frühmittelalterlichen Urkunde (1927) 88.

Traditio clavium. See claves.

Traditio ficta. (A non-Roman term.) A symbolic handing over of a thing which was to be delivered to the transferee. There was no physical delivery thereof but other acts, performed instead, manifested the transfer of the thing beyond any doubt. The typical case of such a traditio was the delivery of keys of a shop, or of a house, to the transferee.

Biermann, T. f., 1891; Riccobono, ZSS 33 (1912) 259, 34 (1913) 159; C. A. Funaioli, Traditio, 1942, 29.

Traditio in incertam personam. Called in the literature a form of traditio in which the transferee was not a certain individual but any one of the people. Such a case was the so-called iactus missilium; see missilia.

Berger, RE 9, 553; idem, BIDR 32 (1922) 154; F. Prings- heim, Kauf mit fremdem Geld (1916) 66; Kaden, ZSS 53 (1933) 613.

Traditio instrumenti. See traditio chartae.

Traditio longa manu. A form of traditio in which the thing to be transferred to the acquirer was placed with his knowledge and consent in his sight (in conspectu) so that he might take possession thereof whenever he pleased. The handing over of a thing to a person other than the real acquirer with the consent of the latter or in his presence, had the same legal effect.

F. Schulz, Einführung in das Studium der Digesten (1916) 66.

Traditio nuda. See nuda traditio.

Traditio possessionis (tradere possessionem). Handing over possession. The expression correctly stresses the external aspect of traditio.—See traditio, VACUA POSSESSIO.

Traditio servitutis. The “delivery” of a servitude could hardly be an institution of the classical law since traditio was applicable only to corporeal things and not to rights. The meaning of the expression was to put the beneficiary of the servitude in the position of being able to exercise his right (e.g., an usufruct = traditio ususfructus).

Riccobono, ZSS 34 (1913) 208.

Traditur (traditum est). It is taught, held, handed down. The expression is used of doctrines which have been prevailing among jurists for a long period of time (through tradition).

Tragoedus. See mimus.

Traiecticia pecunia. See fenus nauticum. Traiec- ticius contractus, an agreement concerning a maritime loan (fenus nauticum).

Trans Tiberim. Beyond the river Tiber, i.e., beyond the boundaries of the city of Rome (urbs), abroad.— See ADDICTUS, SERVUS, TIBERIS.

Sautel, in Varia, Etudes de droit romain (Publications de ITnst. de dr. rom. de I’Univ, de Paris, 9) 1952, 86.

Transactio. (From transigere.) An extrajudicial agreement between two parties involved in a controversy in order to settle it in a friendly way and avoid a trial in court. Transigere = “to settle a doubtful matter, an uncertain and unfinished controversy” (D. 2.15.1). Usually the parties made reciprocal concessions, the claimant renouncing his action, the debtor recognizing his liability and either paying immediately his debt or promising to do so in the future, normally through stipulatio to make the claim easily suable. From the juristic point of view the transactio was a pact (pactum). A transactio over a controversy already decided by a judgment was not permissible unless (under later law) an appeal from it was brought. Postclassical and Justinian’s legislation favored the transactio as a friendly settlement of controversies. The transactio became an autonomous legal institution similar in type and effect to innominate contracts (see contractus in- nominati).—D. 2.15; C. 2.4.

Kaser, RE 6A; C. Bertolini, Transazione, 1900; M. E. Peterlongo, La transazione, 1936; G. Boyer, Pacte cx- tinctif d’action en dr. civil rom., Recueil de LAcad. de legislation de Toulouse, 13 (1937) ; Riccobono, Miscellanea G. Mercati, 5 (1946) 24.

Transcripticia nomina. See nomina transcripticia. Transcriptio. See nomina transcripticia.

Transferre. To transfer to another (a right, a thing, possession, etc.). There was a fundamental rule concerning the transfer of property or rights to another: “No one can transfer to another more rights (plus iuris) than he has himself” (D. 50.17.54). Another rule stated: “What belongs to us cannot be transferred to another without an action of ours (sine facto nostro),” D. 50.17.11.

Transferre. (When referred to a legal norm.) To apply a legal principle to an analogous case.

Transferre actionem (translatio actionis). See

CESSIO.

Transferre domicilium. To transfer the domicile. The transfer was to be real and factual (re et facto, D. 50.1.20), not simply by a declaration before witnesses.

Transferre possessionem. See traditio.

Transfuga. (From transfugere.) A soldier who runs over to the enemy (ad hostem transit, transfugit). In war time he was punished by flogging to death, Transfuga also was a soldier who when taken by the enemy as a prisoner did not escape although he had the opportunity to do so. A transfuga was regarded as an enemy and had no ius postliminii. Syn. perfuga. Schnorr v. Carolsfeld, RE 6A.

Transfusio. See the definition of novatio. Transigere. See transactio.

Transire. To pass over, to devolve to, to be transferred to another (e.g., an inheritance, a right or an obligation, ownership, a legal remedy such as an actio, exceptio or querela}.

Transire ad hostem. To desert to the enemy. Syn. transfugere.—See transfuga.

Transitio ad plebem. Transition from the patrician order to the plebeian. This brought the new plebeian the advantage of his eligibility to the plebeian tribunate. The transition was achieved through adoption by a plebeian performed in an assembly of the plebeians (concilium plebis).

Kühler, RE Siber, RE 21, 125; Humbert, DS 2, 1509. Transitus. See in transitu.

Translatio dominii. See translatio iuris.

Translatio iudicii. An alteration in the procedural formula in a specific trial after the issue was framed (litis contestatio). Such alteration became necessary when a change of a person involved in the trial occurred, e.g., the death of the judge, appointed in the procedural formula, or of one of the parties or his representative (death of a cognitor, withdrawal of, or loss of citizenship by, the cognitor). Minor complications were caused if the change concerned other representatives of a party, a procurator (see procurator in a civil trial), a guardian or a curator. The technical side of the translatio iudicii in the events mentioned is not quite clear, in particular, whether a new litis contestatio, a restitutio in integrum, or a specific agreement between the parties, confirmed by the competent magistrate, was necessary. It is likely that all instances of translatio iudicii were technically not treated in the same way.

Kaser, RE 6A, 2160; P. Koschaker, T. i. (1905) ; J. Duquesne, T. i. (Paris, 1910) ; Wlassak, Judikationsbefehl, SbWien 197, 4 (1921) 234.

Translatio iuris. The transfer of a right from one person to another either by an act inter vivos (an agreement, a donation) or mortis causa, through succession. See transferre. Translatio rei (dominii) — the transfer of ownership.—See cessio, dominium.

Kaser, RE 6A, 2158.

Translatio legati. See ademptio legati.—Inst. 2.21; 34.4.

Kaser, RE 6A, 2168; Sanfilippo, AnPal 17 (1937) 120. Translatio rei. See traditio, translatio juris.

Kaser, RE 6A, 2159 (Bibl.).

Transmittere (transmissio). Primarily used of the transfer of a right from one person to another through inheritance or legacy (mortis causa). In a specific, technical sense, transmitti (pass.) refers to a transfer of the right to accept an inheritance by the appointed heir to his successors. Under the classical law, when an heir upon whom an inheritance was conferred (delata, see deferre hereditatem) died before the acceptance of the inheritance (see aditio hereditatis), the latter was not “transmitted” to another. Some exceptions from this rule, however, were admitted in the later law. Two cases of transmissio are particularly important. First, the so-called transmissio Theodosiana (C. 6.52.1), which occurred when a testator appointed his descendant as an heir and the latter died before the testament was opened (see apertura testamenti). In such an event the heir’s •nearest descendant had the right to accept the inheritance. In a much larger measure the classical rule was superseded by the so-called transmissio lusti- niana (C. 6.30.19) : if an heir (a testamentary one or on intestacy) died before a year elapsed from the time he had notice of the delatio or before the time for deliberation (see deliberare, tempus ad deliberandum) expired, his heirs could accept the inheritance during the rest of the time. If an heir died without having knowledge of the inheritance conferred upon him, the pertinent terms (one year or the tempus ad deliberandum, respectively) ran fully in favor of his heirs.—C. 6.50; 52.

P. Bonfante, Corso di dir. rom., 6 (1930) 243; B. Biondi, Successione testamentaria (1943) 251.

Transversus. See linea, latus.

Trebatius, Caius T. Testa. One of the last Republican jurists, contemporary with, and friend of, Cicero, teacher of Labeo. No direct excerpt from his works is preserved in the Digest, nor is a title of a writing of his cited. Literary sources make it clear that he wrote a treatise on civil law (de iure civili) and an extensive work on divine law. He enjoyed high esteem with the classical jurists.

Sonnet, RE 6A, 2251; Berger, RE Suppl. 7, 1619; idem, OCD.

Trecenarii. Imperial officials receiving the highest annual salary of 300,000 sesterces. Lower groups were ducenarii (with a salary of 200,000 sesterces), centenarii (100,000) and sexagenarii (60,000).—See PROCURATORES (iN PUBLIC LAW).

Kubitschek, RE 3; Seeck, RE 5 (s.v. ducenarii) ; A. Segre, TAmPhilolAs 74 (1943) 102.

Trecenarius. In the army, the highest officer (centurio) in the PRAETORIUM.

Lammert, RE 6A.

Tres faciunt collegium. The minimum number of members of an association was three (D. 50.16.85). See COLLEGIUM.

Ties partes. In some manuscripts of the Digest a part of the second (middle) portion (see infortia- tum), to wit, from D. 35.2.82 until the end of book 38, appears as a separate volume starting with the words “tres partes.” The division has no essential significance at all; it might be a jest of the scribe who saw in these two words an allusion to the division of the Digest into three volumes.—See vulgata. Kantorowicz, TR 15 (1937) 40.

Tresviri (triumviri). A body of three officials associated in the same official functions. Additional words indicate the office and functions for which they were appointed. They acted in common or separately if they agreed upon the division of their functions among themselves.—See the following items.

Strasburger, RE 7A (j.t/. triumviri) ; Lecrivain, DS 5.

Tresviri aediles, (tn municipalities.) In some municipia there were three aediles instead of two (duoviri aediles).

E. Manni, Per la storia dei municipi (1947) 159.

Tresviri (triumviri) agris dandis (or dividundis). See tresviri coloniae deducendae.

Tresviri aere argento auro flando feriundo. See TRESVIRI MONETALES.

Tresviri capitales. Magistrates of a lower rank {magistratus minores') belonging to the group of vigintisexviri. They exercised police functions in Rome and fulfilled certain tasks in criminal and civil jurisdiction (arresting suspect persons, castigating thieves and slaves, supervising executions of persons condemned to death). They also collected pecuniary fines (multae), the sum of sacramentum from the party defeated (see legis actio sacramenti), if the sum was not deposited before. A Lex Papiria of an unknown date (between 242 and 122 b.c.) ordered their election by comitia tributa, presided over by the praetor urbanus. The tresviri capitales still existed in the third century after Christ but most of their functions were performed under the Principate by the vigiles.

Strasburger, RE 7 A, 518; Lecrivain, DS 5, 413; G. Ro- tondi, Leges publicae populi Romani (1912) 312.

Tresviri (triumviri) coloniae deducendae. Three commissioners appointed for the foundation of a colony and the distribution of plots of land among the colonists. Their number increased in the course of time (quinqueviri, septemviri, decemviri) and their official title was enlarged through the addition of words such as agris dandis, assignandis, indicandis.

Strasburger, RE 7A, 511; Schulten, DE 2, 429; Bayet, Rev. des Etudes Latines 6 (1928) 270.

Tresviri monetales. Masters of the mint. They were magistrates of lower rank (magistratus minores) and belonged to the group of officials called by the collective name vigintisexviri. Under the Republic their names were impressed on the coins. From the time of Augustus their official title was tresviri aere argento auro flando feriundo ( — the officials to blow and coin bronze, silver and gold). From the third century the masters of the mint bore the title procurators monetae; from the time of Diocletian they were appointed for each dioecesis.

Strasburger, RE 7A, 515.

Tresviri nocturni. See vigintisexviri. 'They were probably predecessors of the tresviri capitales. Strasburger, RE 7A, 518.

Tria verba. See do dico addico.

Paoli, NRH 30 (1952) 297.

Triarii. See CENTURIO.

Lammert, RE 7A; H. M. D. Parker, The* Roman legions (1928) 10.

Tribonianus. Justinian’s principal collaborator and adviser in his legislative work. He was a member of the commission appointed by the emperor for the compilation of the first Code and presided over the commissions which composed the Institutes, the Digest, and the second Code. Hence the changes made by the compilers on the texts of classical juristic writings and imperial constitutions, collected for Justinian’s codification, are termed in the literature emblemata Triboniani (“Tribonianisms”). During the work on the codification he was—with a brief interruption—Quaestor sacri palatii and temporarily magister officiorum. He probably also was the author of Justinian’s earlier Novels. He died about a.d. 545. In spite of some critical remarks about his character by a contemporary writer (Procopius of Caesarea) the reliability of which are not beyond doubt, Tribonianus was the most prominent personality of Justinian’s epoch. The emperor speaks of him with the highest praise. His collection of rare juristic works which served the compilers in the preparation of the Digest, is particularly emphasized by Justinian (Tanta c. 17).

Kubler, RE 6A; Berger, OCD; E. Stein, Bull, de la Classe des Lettres, Acad. Royale de Belgique, 23 (1937) 365.

Tribu moveri. See nota censoria.

Tribuere. To grant, to concede. The term refers to legal remedies granted both by law (a statute) and a jurisdictional magistrate. Tribuere appears in the classical definition of justice (see iustitia) : ius suum cuique tribuere (= to render everyone his due).— See TRIBUTIO, ACTIO TRIBUTORIA, ULTRO TRIBUTA.

Tribunal. A platform for a court, in the open air or (under the Principate) in a basilica. The jurisdictional magistrate, his secretary, and his council (consilium) were seated on the tribunal. The seat of the presiding magistrate was in the middle on the front of the tribunal (pro tribunali). The magistrate acted pro irilntnali when he decided about bonorum pos- sessio, missiones, restitutio in integrum, appointment of guardians, adoptions, manumissions, and the like. Ant. de plano. Tribunal was later used in the sense of a court.—See in transitu, centumviri.

Weiss, RE 6A; Chapot, DS 5; Severini, NDI 12, 2; Pernice, ZSS 14 (1893) 135; Kubler, Festschrift fur O. Hirschfeld (1903) 58; H. D. Johnson, The R. tribunal, Baltimore, 1927; Dull, ZSS 52 (1932) 174; Wenger, ZSS 59 (1939) 376.

Tribunal. (In a military camp.) A higher platform on which a military commander and his retinue were seated.

Lammert, RE 6A, 2430.

Tribunatus. The office of a tribune, in military service (in the army or in the imperial guard).

Tribuni. The following items deal with the more important officials bearing the title of tribunus. There were some more functionaries called tribuni, during the whole period of Roman history, for some specific functions of subordinate nature. Several of them were involved in the administration of military supplies.

Lengle, RE 6A.

Tribuni aerarii. Originally they were officials of the tribus charged with the payment of stipend to soldiers, collection of the necessary means for this purpose (tributum) imposed on the members of the tribus, and the management of contributions and booty taken from the enemy. Since these functions were assigned to financially reliable persons, the term tribuni aerarii was later applied to persons classified in higher classes of the census. A lex Aurelia (70 b.c.) ordered that one-third (300) of the jurors in criminal courts (quaestiones) be selected among the tribuni aerarii, but a statute issued under the dictator Caesar abolished that privilege. Although the census of tribuni aerarii was lower than that of persons of equestrian rank (see equites), they belonged to the well-to-do group of the society.—See lex aurelia IUDICIARIA, TRIBUS.

Lengle, RE 6A, 2432; Treves, OCD; Hill, AmJPhilol 67 (1946) 61.

Tribuni celerum. See celeres.

Tribuni civitatis. Military commanders and high officials of the civil administration in larger cities in the later Empire (particularly in Egypt).

Lengle, RE 6A, 2435.

Tribuni classis. Conimanders of navy units, probably of a lower rank than the praefectus classis.

Lengle, RE 6A, 2436.

Tribuni cohortis. Military commanders of cohortes praetoriae, subordinate to the praefectus praetorio. Later the title was given to specific (voluntary) units of the military forces in the field.

Lengle, RE 6A, 2436.

Tribuni laticlavii. Among all military tribunes who normally were of equestrian rank, they ranked highest since they belonged to the senatorial class.

Tribuni militum. The highest officers in the legions, normally of equestrian rank (see tribuni laticlavii). There were six tribuni militum in a legion; one of them assumed in times of war the command of the whole legion. In peace time their activity was manifold, as described by the jurist Macer, in his work “On military matters” (de re militari) : “to hold the soldiers in the camps, to make them exercise for training, to keep the keys of the gates, to make sometimes the rounds of the watch, to supervise the distribution of the food, to examine the grain, to restrain frauds attempted by the furnishers of food, to punish offenses, to be frequently present in the headquarters, to hear the complaints of the legionnaires, to inspect their healthy conditions,” etc. (D. 49.16.12.2). Under the Principate the title tribuni militum was conferred on commanders of other units of a more or less military character and on officials of the imperial administration.—See lex licinia cassia.

Liebenam, RE 6, 1639; Parker, OCD.

Tribuni militum consular! potestate. Military tribunes with consular power. The tribuni militum con- sulari pot estate were created first in 444 b.c. in the place of consuls. Their number varied from three to six, and they were appointed as extraordinary magistrates by a decree of the senate. They disappeared as a constitutional institution in 367 b.c. when the praetorship was established.

Lengle, RE 6A, 2448; Bernardi, RendLomb 79 (1945-46) 3.

Tribuni numerorum. See numerus.

Tribuni plebis. Plebeian tribunes. The office was created in 494 b.c. after the first secession of the plebeians to the Sacred Mount (Mons Sacer}. The tribuni plebis were originally not magistrates of the state but officials of the plebeian order (see plebs). Their number increased gradually from two to ten. The development of the plebeian tribunate reflects the development of the rights and social situation of the plebs. The primary function of the tribuni was the defense of the plebeians against illegal acts and abuses of the patrician magistrates (ins auxilii, see auxi- lium, intercessio tribunicia). The house of the tribuni had to be accessible even during the night; a tribunus could not be absent from Rome longer than one day. Originally the tribunes were elected by the plebeian assemblies (see concilia plebis), later by comitia tributa. The office and the person of a tribunus were sacrosanct (see sacrosanctitas) ; one who violated the sacrosanctity of a tribunus became an outlaw (see sacer, leges sacratae). For the right of the tribunes to protest against the administrative acts and legislative proposals of the magistrates (ins intercedendi), see intercessio in public law. A tribunus had the right to convoke a gathering of the plebs (concilia plebis), to preside over it, and to make proposals of bills to the plebeian assembly on which the plebs voted (see plebiscita). The tribunes obtained the greatest success in the field of legislation when they were admitted to the meetings of the senate and were granted the right to make legislative proposals which after approval by the senate were transmitted to the comitia tributa for a vote. Later, the tribuni were authorized to convoke the senate and under the Lex Atinia (149 b.c.) they obtained a seat in the senate after their term of service. Tribunes had ius co'ercendi (see coercitio) over persons who offended their dignity or opposed their orders. They could order the arrest of the wrongdoer which was made by the aediles plebis or the subordinates of the tribuni, the viatores. In the field of jurisdiction the tribunes assumed the competence of the former duo- viri perduellionis in cases qualified as perduellio and decided upon offenses against their person. Generally they inflicted fines {multae), but they had the power to pronounce even the death penalty. The latter and higher fines (over 3020 sesterces), however, had to be confirmed by the comitia centuriata or tributa (for fines). Only a plebeian could be a tribune (see transitio ad plebem). The tribuni had no imperium, but their legal position became in the later Republic very similar to that of magistrates. The great importance of the plebeian tribunate is evidenced by the fact that Augustus based his sovereign power primarily on tribunicia potestas, against which no ius^intercedendi (either by tribunes or by magistrates) could be applied. Consequently, the tribunes lost much of their prestige although their ius intercedendi against the orders of magistrates, the ius auxilii, and some minor rights as well as their honorific privileges remained undiminished. Mention of tribuni plebis still occurs in the fifth century, but only as an honorary title.—See moreover, ius AGENDI CUM PLEBE, LEX AURELIA, LEX CORNELIA (on tribunes), LEX HORTENSIA, LEX PUBLILIA PHILONIS, LEX POMPEIA LICINIA, LEX ICILIA, LEX PUBLILIA VOLERONIS, LEX VALERIA HORATIA, TRIBUNICIA POTESTAS.

Lengle, RE 6A, 2454 (Bibl.); Lecrivain, DS 5; Anon., NDI 12, 2 (s.v. tribunato) ; Momigliano, OCD; idem, Bull. Comm, archeol. comunale di Roma, 59 (1932) 157; F. Stella-Maranca, Il tribunato della plebe dalla Lex Hortensia alia lex Cornelia (1901) ; B. Kiibler, Privatrecht- liche Kompetenz der Volkstribunen in der Kaiserzeit (Fschr O. Hirschfeld, 1903) ; E. Meyer, Kleine Schriften, 1910, 351; E. Cocchia, Tribunato della plebe (1917) E. Pai$, Ricerche sulla storia 3 (1918) 3 (on Fasti tribunicii), 227; G. Niccolini, I tribuni e il processo capitale, Atti della Soc. Linguistica Ligure di Scienze e Lett. 3 (1924); idem, Historia 3 (1929) 181; idem, I fasti dei trib. della plebe, 1934; H. Siber, Die plebeischen Magistraturen bis zur lex Hortensia, 1936; Brecht, ZSS 59 (1939) 271; G. De Sanctis, Miscellanea G. Mercati, 5 (1946) ; C. W. Westrup, Introduction to early R. law, 4, 1 (1950) 91; Siber, RE 21, 169,

Tribuni scholarum. See scholae.

Tribuni vigilum. See vigiles.

Tribuni voluptatum. Police officers in the later Empire who had the supervision of public games and theatrical spectacles, and the control of public morals.

Tribunicia potestas. The fullness of power conferred on plebeian tribunes. Caesar and Augustus had the title tribunicia potestate conferred on them in-order to be inviolable {sacrosanctus).—See tribuni plebis.

Mattingly, IRS 20 (1930) 78; Strack, Klio, Neue Folge 14 (1939) ; De Visscher, SDHI 5 (1939) 101 (= Nouvelles Ftudes, 1949, 27); Gioffredi, SDHI 11 (1945) 37; M. Grant, From imperium to auctoritas, 1946, 446.

Tribunicius. (Adj.) Connected with the office of a tribunus plebis.

Tribunicius. (Noun.) A retired tribune.—See ad- lectio.

Tribunus et notarius. See notarius.

Tribus. A tribe. The original three tribes, Ramnes, Tities, and Luceres (see ram nes) were of ethnic character. The later division of the territory of Rome into four tribus (ascribed to King Servius Tullius) was a local one and superseded the ethnic division. In 495 b.c., sixteen country tribus were added to the former urban ones and after 241 b.c. there were thirty-five tribus altogether, the original four urban tribus {tribus urbanae) and thirty-one “rustic” {tribus rusticae) covering the whole country. In the tribus rusticae the landowners were concentrated, whereas the city-tribus embraced (since 304 b.c.) the non-owners of land. The tribus rusticae became thus more distinguished and the assignment to an urban tribus was implied in a tribu moveri (expulsion from a tribus rustica) through a nota censoria. Each Roman citizen had to be registered in a tribus during the census. The registration gave him the right to vote in the popular assembly of the tribus {comitia tributa). The division in tribus served for calling to military service and taxation within the tribus {tri- butim). The tribuni aerarii functioned as chairmen of the tribus. Their principal duty was to pay off the soldiers of the tribus {aes militare) and to collaborate in the assessment of the landed property for taxation purposes. In the later Republic the territorial basis for the enrollment into a tribus was not strictly observed. Under the Principate the tribus became an organization for relief of its poor members who were entitled to some help in grain and food from the state. See tesserae frumentariae.—See

CURIAE MUNICIPIORUM.

Kubitschek, RE 6A; Chapot, DS 5; Momigliano, OCD; O. Hirschfeld, Kleine Schriften (1913) 248; Niccolini, St Bonfante 2 (1930) 235; E. Taubler, SbHeid 1929/30, Heft 4; Last, JRS 35 (1945) 30; Gintowt, Eos 43 (1948/9) 198.

Tribus municipiorum. See curiae municipiorum. Tributarius. (Noun.) A taxpayer. The term refers to payers of taxes of any kind. Tributarius (adj.) — connected with, or pertinent to, the payment of TRIBUTUM.—See PRAEDIA tributaria.

A. Segre, Trad 5 (1947) 103.

Tributim. By tribus, e.g., voting tributim in the co- mitia tributa.—See tribus, lex Valeria horatia.

Tributio. (From tribuere.) Distribution of an insolvent commercial peculium belonging to a slave or films jamilias among its creditors (see actio tri- butoria).—See TRIBUTUM.

Tributoria actio. See actio tributoria.

Tributum. In earlier times an extraordinary charge in kind imposed (indie ere) on citizens, non-soldiers, in war time in order to secure equipment and nourishment for the army. After a victorious war the tributum was sometimes reimbursed to the payers if the booty and contribution taken from the enemy was large enough to cover the expenses of the war. Syn. tributio. Later, tributum became a general term for taxes; see the following items. For tributum in the provinces, see TRIBUTUM SOLI, STIPENDIUM, PRAEDIA tributaria.—C. 10.16; 21.

Schwahn, RE 7A; Lecrivain, DS 5; Schlossmann, Arch, für lateinische Lexicographic 14 (1906) 25; Ciapessoni, St su Gaio (1943) 52; L. Clerici, Economia e finanza dei Romani, 1 (1943) 440; Van Oven, in Tractatus tributarii, offered to P. J. A. Adriani (Haarlem, 1949) 29.

Tributum capitis. A tax imposed on the population of certain provinces. The tax was not uniform. It was either a tax from property other than land or a poll-tax levied as a capitatio plebeia (humana) which was paid by certain groups of the population subjugated.—See capitatio in the provinces.

Schwahn, RE 7A, 68; E. H. Stevenson, Roman provincial administration, 2nd ed. 1949, 151; Tcherikover, Jozir. of Juristic Papyrology 4 (Warsaw, 1950) 193.

Tributum soli. A land tax, the most important impost in the provinces paid either in kind or in money. It was based on a survey of the land and an evaluation by experts. Originally there was no difference between Stipendium and tributum; under the Principate distinction' was made depending upon the circumstance whether the province was imperial or senatorial : tributum was paid in imperial provinces, Stipendium in senatorial.—See praedia stipendiaria, PRAEDIA TRIBUTARIA.

Schwahn, RE 7A, 10; 62; 70; Anon, NDI 12, 2.

Tributum temerarium. A general extraordinary tax paid voluntarily ^in times of urgent necessity (emergency) by· well-to-do persons in order to save the state from financial calamity. The money given was considered a loan to be repaid by the state when its financial situation would improve. Tlfe.tributum temerarium was practiced only in the Republic.

Schwahn, RE 7A, 58.

Triginta dies. A period of thirty days. It was applied in both criminal and civil procedure on various occasions. Its origin was perhaps in sacral law (armistice) from which it was by statute or custom transferred into legal procedural practice.—See dies iusti, TEMPUS IUDICATI, LEX PINARIA, LEX CICEREIA.

F. Kleineidam, Personalexecution der Zwölf Tafeln (1904) 130; Düll, Fschr Koschaker 1 (1939) 27.

Trinoctium. Three consecutive nights. Through a wife’s intentional absence for three nights from the common dwelling with her husband, the acquisition of manus (power) over her through usus was interrupted. The marriage concluded through cohabitation remained valid and could be continued when the wife returned to the common home.—See usur- pare.

Levy-Bruhl, TR 14 (1936) 452 (—Nouv. Etudes [1947] 72); Wolff, TR 16 (1938) 145; Kaser, lura 1 (1950) 72. Trinundinum. See nundinae, promulgare, lex caecilia didia. Syn. trinum nundinum.

Kroll, RE 17, 1471; Treves, OCT)-, G. Rotondi, Leges publicae pop. Rom. (1912) 125.

Tripertita. The title of the earliest Roman juristic treatise, written by the jurist Sextus Aelius Petus Catus; see aelius.

Tripertitum ius. See testamentum tripertitum. Triplicatio. See duplicatio, replicatio.

Triptychum. Three wooden, wax covered, square tablets bound together like a booklet with six pages. Pages one and six were left blank, pages from two to five contained the text of the document (scrip tura interior on pages two and three was sealed by the witnesses on page four, scriptura exterior was written on pages four and five).—See tabulae, tabulae CERATAE, DIPTYCHUM.

P. Kruger, Gesch. der Quellen² (1912) 267.

Triticaria condictio. See condictio triticaria.

Triumphator. A military commander (an emperor or a high magistrate entering Rome under an imposing ceremonial (see triumphus) after a victorious war. As an honorific title the term was applied to emperors in the later Empire.

Triumphus. The solemn entrance of a military commander in Rome after a victorious war. Under the Republic it was only a dictator, a consul, or a praetor (magistrates with imperium) who had the right to celebrate the victory of his troops (or the navy, triumphus navalis, maritimus) in this way, if they were still in office (in magistratu) and a previous decision of the senate granting the triumphus was passed before they returned to the city of Rome (pome- rium). Only a victory over the enemy obtained by bloodshed (at least five thousand enemies killed) gave the right to a triumphus, according to a lex Maria Porcia of 62 b.c., which fixed penalties for commanders who gave false information about the number of enemies killed in war. In the Empire, the triumphus was a prerogative of the emperor. The triumphator had the right to certain special insignia (ornamenta triumphalia) such as a chariot richly ornamented with gold, ivory, and laurels (currus triumphalis), a toga picta (vestis triumphalis), a laurel crown (corona triumphalis) on his head, while another crown (made of gold) was held over his head by a public slave, etc. A lesser triumphus (minor triumphus), called ovatio, was also granted by the senate in cases in which the military success did not justify a full triumph or when the campaign was of lesser importance.—See acclamatio.

Ehlers, RE 7A; Borzsak, RE 18, 1122; Rohde, RE 18, 1890 ova t io) ; Cagnat, DS 5; Cuq, DS 3, 1155; G.

Rotondi, Leges publicae populi Rom. (1912) 382.

Triumvirale indicium. In postclassical times three arbitrators chosen by the parties to settle a controversy between them.

Triumviri. See tresviri.

Triumviri rei publicae constituendae causa. See LEX TITIA.

Tryphoninus, Claudius. A jurist of the first half of the third century, member of the council of the emperor Septimius Severus, a disciple of the famous jurist Cervidius Scaevola. He wrote notes (notae) to his teacher’s work and an extensive casuistic collection, Disputationes (in 21 books).—See Claudius.

Jors, RE 3, 2882; W. Kunkel, Herkunft und soziale Stellung der rom. Juristen, 1952, 231.

Tubero, Quintus Aelius. A jurist of the second half of the last century of the Republic. He wrote on constitutional law (on the senate) and on the duties of a judge. Of another jurist of the same name, who was consul in 118 b.c., very little is known. He was highly praised by Cicero.

Klebs, RE 1, 535 (no. 155), 537 (no. 156); Grosso, ATor 78 (1942/3) 180.

Tuditanus, Caius Sempronius. Consul 129 b.c., the first jurist who wrote on public law, author of a treatise on magistracies (at least in 13 books).

Miinzer, RE 2A, 1441.

Tueri. To defend, to protect, to take care, to administer carefully (one’s property, affairs). The term is frequently applied to legal institutions and procedural remedies (actions, exceptions, interdicts) by which a person could defend his rights and interests in court or be granted protection by the praetor; see tuitio PRAETORIS.

Tuitio praetoris. Protection, defense, granted by the praetor in specific cases in which, under ius civile, such a protection was not available.—See ipso iure, MANUMISSIO PRAETORIA, SERVITUTES PRAETORIAE, IUS HONORARIUM.

S. Solazzi, Requisite e modi di costitusione dello servitu prediali (1947) 137.

Tumultus. A riot, an uproar, a violent agitation (revolt) of the people against public authorities (adversus rem publicam) when an internal critical situation was threatening. In such circumstances exceptional measures were taken, as, e.g., calling all citizens to arms and suspension of exemptions from military service. The state of tumultus was publicly proclaimed by the senate. With regard to contractual obligations the impossibility of their fulfillment caused by accidents during a tumultus were considered a vis maior.—See iustitium, senatusconsultum ultiMUM, DEPOSITUM MISERABILE, TURBA, SEDITIO.

Sachers, RE 7 A, 1345.

Tunc enim (or autem, etenim, certe, deinde). Occurs in interpolated texts, in particular when the locutions follow a negative conditional phrase (nisi...) and serve to define precisely the exceptional case (tunc = in that case). The locutions, however, are not an absolutely reliable criterion of interpolation, as often has been assumed.

E. Albertario, Fit 36 (1911) 801; Berger, KrVj 14 (1912) 419; Guarneri-Citati, Indice* \927, s.vv. enim_f tunc.

Turba. A riot, a turmoil. Robbery committed during a riot in which many persons (“not three or four,” D.,47:8.£3) were engaged was more severely punished than a simple rapina. Turba also refers to a multitude of persons whom a man gathered in order to enter with violence another’s house for the purpose of plundering. If the accomplices were armed (turba cupi telis), the culprit was punished by death.—D. 47.8.—See tumultus.

Esmein, Mel Girard 1 (1912) 458.

Turbatio. A tumultuous disturbance of public order and peace.—See turba.

Turbatio sanguinis. See luctus.

Turma. A small cavalry unit, normally of thirty cavalrymen, one-tenth of all horsemen attached to a legion. See equites legionis. Commander of a turma was the decurio commanding the first decuria ( — ten cavalrymen) of the turma. The decuria was the smallest cavalry unit. In the Empire a larger unit was the ala which consisted of sixteen or more turmae.

Lammert, RE 7A; Cagnat, DS 5.

Turmarii. Imperial officers in the later,’Empire concerned with the enlistment of recruits for the cavalry.

Turpis. See CONDICIO TURPIS, CONDICTIO OB TURPEM CAUSAM, ACTIONES FAMOSAE, RES TURPIS, and the following items.

Turpis persona. A person whose occupation or conduct was disreputable. Among personae turpes were actors (see scaenicus), gladiators (see harenarii), prostitutes (see meretrix), owners of houses of lewdness (see Lena, leno). A turpis persona was excluded from guardianship and could not contest a testament through querela inofficiosi testamenti. See TURPITUDO.

Sachers, RE 7A, 1435.

Turpis stipulatio. A stipulatio under which a person assumed an obligation to commit a crime. The promise was null. Stipulatio ex turpi causa = a stipulatio in which the ground of the promise was immoral although the object was not (e.g., a promise made to prevent a crime intended by another). In such a case the promisor when sued for payment, could oppose the exceptio doli; on the other hand the magistrate could refuse the plaintiff the actio (denegatio actionis) against the promisor.—See condictio ob TURPEM CAUSAM.

Siber, St Bonfante 4 (1930) 105.

Turpitudo. The quality of a person to be of bad repute (turpis persona) because of his profession,

immoral or improper conduct. Such persons were condemned by public opinion and branded factually with infamy although legally they were not infamous (infamis). In the literature this kind of infamy is called infamia facti, to be distinguished from infamia iuris, i.e., infamy inflicted by law.—See infamia, EXISTIMATIO, TURPIS PERSONA, ACTI0NES FAM0SAE, NOTA CENSORIA, IGNOMINIA.

Sachers, RE 7A.

Tuscianus. A jurist of the second century after Christ, successor of lavolenus in the leadership of the Sabi- nian school (see sabiniani). No excerpt of his works is known.

Berger, RE 7A, 1462; Guarino, AnCat 1 (1947) 331; Kunkel, Herkunft und soziale Stelluncj der rom. Juristen, 1952, 153.

Tutela. See tutela impuberum, the primary type of guardianship.

Tutela agnatorum. See tutela legitima agnatorum.

Tutela dativa. See tutela testamentaria, tutor dativus.

Tutela fiduciaria. Fiduciary guardianship. One instance of tutela fiduciaria occurs in connection with the coemptio fiduciae causa. Another instance was connected with emancipatio, when the person who purchased a son from his father for the third time did not remancipate him to the father but manumitted him himself (manumissor extraneus); this gave the manumitter fiduciary guardianship over the emancipated.—Inst. 1.19.

Sachers, RE 7A, 1595; W. W. Buckland, Textbook² (1932) 147.

Tutela impuberum. Guardianship over persons sul· iuris (not under paternal power) who were below the age of puberty (see impubes). The definition of tutela, given by the Republican jurist Servius Sulpicius Rufus (and quoted by Justinian in his Inst. 1.13.1), runs: “a right and power over a free person, granted and allowed under ius civile, to protect him who, because of his age, is not able to defend himself” (D. 26.1.1. pr.). The guardian (tutor = tuitor) had to protect the person and the property of* the ward (pupillus) and his functions are qualified as a power (pot^stas) although it was not so extensive as the paternal power (patria potestas). “A tutor does not only administer the property of the ward (res pupilli) but he also has to take care of his moral behavior” (mores, D. 26.7.12.3). Tutela is not only a right; it created on the part of the tutor duties for the fulfillment of which he was responsible. Consequently guardianship was considered a munus (a charge); under the later Principate it was designated as a munus publicum ( = a public service) inasmuch as the protection of young people unable to manage their affairs was also in the public interest. The further development of the institution was dominated by the tendency to extend the liability of the guardians and to submit them more and more to the control of the public authorities. The original independence of the tutor in the administration of the ward’s affairs— he was then considered domini loco (taking the place of the owner)—was in the course of time restricted in many ways, although, as a matter of principle, he was authorized to manage all matters connected with the ward’s property (negotia pupilli ger ere). Certain acts of the tutor were prohibited, such as donations (except small ones, usual in family events and in social relations), transactions in which the guardian himself was interested (in re propria), and what was most important, the alienation and hypothecation of the ward’s landed property; see oratio severi. For specific purposes, however, when the interests of the ward required it, permission to alienate could be given by a magistrate. The principal function of the tutor was his cooperation in legal acts performed by the ward himself who as a person sui iuris could, if he was beyond the age of infancy (infantia maior) validly conclude but only with the authorization (approval, auctoritas) of the guardian (see auctoriTATEM INTERPONERE, AUCTORITAS TUTORIS). The auctoritas was unnecessary when the act concluded by the pupillus was exclusively to his advantage. In civil ’lawsuits the tutor was authorized to represent the ward but not without certain restrictions depending either on the form of procedure (under the regime of legis actiones he could represent only an infans, under the formulary procedure there were no restrictions) or on the age of the impubes (e.g., a mature impubes could sue his adversary sine tutore auctore). The earliest form of the appointment of a tutor was the testamentary one (tutela testamentaria) which occurred when a father or the person who had paternal power (patria potestas) over the impubes nominated a tutor in his testament (by which the impubes normally was instituted as an heir, heres). In the absence of a testamentary appointment, the tutor was designated by the law (tutela legitima). There was also an appointment by a magistrate; see tutela dativa. For the requirements concerning the personal ability to be a guardian, see tutor. Originally not responsible at all, the guardian was later made liable for damages caused by fraudulent (dolus, fraus) or negligent (culpa) administration of the ward’s property. He could be removed under an accusation to be suspect (see tutor suspectus), sued by the actio (de) rationibus distrahendis in the case of fraud committed in the management of the guardianship, and by the actio tutelae (arbitrium tutelae) for rendering an account of what he had done for the ward, for the restitution of the ward’s property and for indemnifying the ward for losses which resulted from fraudulent and (later) negligent administration. The latter action was a bonae fidei actio and involved infamy to the guardian if he was con- demned. For security given by the guardian, see cautio rem pupilli salvam fore. From the time of Constantine the ward had a general hypothec {hypotheca omnium bonorum) on the guardian’s property. The guardian could seek a reimbursement of his expenses made in the interest of ward through actio tutelae contraria.—In Justinian’s codification the law of guardianship was thoroughly reformed. Alterations of classical texts obscured many details in the development of the institution and in the field of the guardian’s duties and responsibilities. Moreover, the tendency towards equalization of the different types of tutela with respect to the forms of appointments contributed considerably to the confusion of the picture.—Inst. 1.13-15, 17-22, 24-26; D. 26.2.1-10, 27.1-9; C. 5.28-68, 71-75; 9.10.—See moreover, EXCUSATIO, POTIORIS NOMINATIO, PRAETOR TUTELARIS, ACTIO SUBSIDIARIA, INVENTARIUM, PERI- CULUM TUTELAE,,ABDICATIO, IN IURE CESSIO TUTELAE, ACTIO RATIONIBUS DISTRAHENDIS, CONTUTORES, USU- rae pupillares, and the following items.

Sachers, RE 7A; Beauchet and Collinet, DS 5; Solazzi, ND! 12, 2; Berger, OCD 400 (s.v. guardianship) ; Renard, NRH (1901) 634; Peters, ZSS 32 (1911) 188; R. Taubenschlag, Studien (1913); Solazzi, Tutele e curatele, RISG 53 (1913) 263, 54 (1914) 17, 273; idem, RendLomb 49 (1916) 638, 53 (1920) 121; idem, Istituti tutelari (1929); idem, StPav 6 (1921) 115; idem, St sulla tutela, Pubbl. Univ. Modena 9 (1925), 13 (1926); E. Levy, Die Konkurrenz der Aktionen 1 (1918) 143; La Pira, BIDR 38 (1929) 53; Vazny, ACDR Roma 2 (1935) 529; Lauria, St Riccobono 3 (1936) 283; Kühler, St Besta 1 (1939) 75; V. Arangio-Ruiz, Rariora (1946) 149; Siber, ZSS 65 (1947) 162; Levy-Bruhl, St Solazzi (1948) 318; Guarino, ibid. 31; Biondi, Fschr Schulz 1 (1951) 52; Provera, ludicia contraria, MemTor Ser. II, 75 (1952) 45.

Tutela legitima. Guardianship in which the choice of the guardian was fixed by law {lex). Under “law” the Twelve Tables are meant (see legitimus). -If a testator failed to appoint a tutor to his son or descendant who was below the age of puberty {impubes) and was to become sui iuris at the death of the testator, the nearest agnates, the same who succeeded ab intestato, had to be the guardians of the persons mentioned. If such relatives were lacking, the Twelve Tables called members of the testator’s gens {gentiles) nearest in relationship. Justinian’s reform of the succession on intestacy (Nov. 118) devolved guardianship to the cognates of the deceased.—Inst. 1.15; 17; 18; D. 26.4; C. 5.30.

Tutela legitima parentiß. A father who emancipated his son {parens manumissor) before the latter became pubes was under the law (see legitimus) the guardian of the son.—Inst. 1.18.—See parens manumissor, EMANCIPATIO.

Tutela legitima patroni. A patron (and after his death his son) became guardian of his freedman whom he manumitted from slavery when the slave was below the age of puberty.—Inst. 1.17.

Tutela mulierum. Guardianship over women sui iuris, i.e., who were neither under paternal power {patria potestas) nor under that of her husband {manus). In the developed stage of the institution the principal function of the tutor mulieris was to give his authorization (auctoritas) to more important transactions or acts performed by the woman, such as manumission of slaves, acceptance of an inheritance, making a testament, assuming an obligation, alienations, constitution of a dowry, and the like. The women’s weakness of sex (see infirmitas sexus), light- mindedness, and ignorance of business and courtaffairs are given as grounds for their protection through tutelage. The appointment of a woman’s guardian was made in the same way as the tutela impuberum : by testament of the person in whose power (paternal or marital) she was, by law {tutela legitima of the agnates and of members of the gens, gentiles, in earlier times) or by a magistrate {tutela dativa). The woman could enforce the auctoritas of the guardian in the case of an unjustified refusal of approval by applying to a magistrate. The tutela mulierum was still in force under Diocletian. In the Theodosian Code there is no mention thereof.—See COEMPTIO fiduciae causa, optio tutoris, ius liberorum, VESTALES, TUTOR AD CERTAM REM, LEX CLAUDIA DE TUTELA MULIERUM, USUCAPIO EX RUTI- LIANA CONSTITUTIONS.

Sachers, RE 7 A, 1588; Solazzi, Aeg 2 (1921) 155.

Tutela testamentaria. Appointment of a tutor by a testator in his last will for his son of a descendant in his paternal power below the age of puberty who at his death would become sui iuris (independent of paternal power). If there was no guardian appointed by testament or if the appointed guardian was excused, legitimate guardianship {tutela legitima) entered into account. The appointment had to be made by name {nominatim). Guardians appointed by testament were treated by legislation with favorable regard as deserving particular confidence inasmuch as they had been selected by the testator.—Inst. 1.14; D. 26.2; C. 5.28.—See cautio rem pupilli salvam FORE, CONFIRMARE TUTOREM, TUTOR DATIVUS.

Tutelaris (tutelarius). See praetor ti/telarius. Schneider, RE 7A, 1608.

Tutor. A guardian. Only Roman citizens could be guardians (some exceptions were admitted in favor of Latins, see latini). Minority was a ground for exemption from assuming a guardianship; Justinian set the age of twenty-five as the minimum age for tutors. Persons with physical defects (dumbness, deafness) were excluded whereas mental defects were only a ground for excuse. Soldiers could not be appointed as guardians. Women were not admitted to guardianship, since it was considered a man’s work {munus masculorum, munus virile). From a.d. 390 grandmothers and mothers were permitted to assume the tutorship of their grandchildren or children if they were widows and solemnly declared not to marry again, and if there was no testamentary or legitimate tutor (C. 5.35.2).—For the rights and duties of a tutor, see tutela.—D. 26.5; C. 5.34; 35.—See nomi- NATIO POTIORIS.

Solazzi, RISG 64 (1920) 2; Frezza, StCagl 22 (1934).

Tutor ad augmentum datus. An additional guardian appointed to assist the primary guardian when the ward’s property substantially increased (e.g., through an inheritance).

Tutor ad certam rem. A guardian could not be appointed for one specific affair. An exception was the tutor praetorius, appointed for a woman under guardianship, for the constitution of dowry if the guardian under law {tutor legitimus) was unable to exercise his functions. In the case of larger estates consisting of distant properties the appointment of a tutor for certain locally delimited affairs was admissible; see TUTOR AD AUGMENTUM DATUS, TUTOR ADIUNCTUS.

Tutor adiunctus. An additional tutor appointed by a magistrate when the principal tutor was temporarily unable to fulfill his duties (e.g., he became a prisoner of war).—C. 5.36.

Sachers, RE 7A, 1524.

Tutor Atilianus. See lex atilia.

Tutor cessans. One of two or more guardians (see contutores) who did not participate in the management of the ward’s affairs at all. Originally he was not liable but later he could be compelled by the praetor to fulfill his duties, and from the time of Marcus Aurelius he could be sued by an actio tutelae utilis for damages if he did not excuse himself within fifty days.—See tutor gerens.

Sachers, RE 7A, 1577; Solazzi, RISG 54 (1914) 35.

Tutor cessicius. See IN JURE cessio tutelae.

Tutor dativus (datus). A guardian appointed by a magistrate: in Rome by the praetor urbanus (see lex atilia), in the provinces by the governor under the Lex lulia et Titia. Under the Principate consuls and praetors appointed guardians, and from the time of Marcus Aurelius a special praetor was concerned with tutelary matters; see praetor tutelarius. The term tutor dativus refers sometimes to a tutor appointed in a testament.—D. 26.5; C. 5.47.

Sachers, RE 7A, 1512; Solazzi, RISG 54 (1914) 17, 273.

Tutor ex lege lulia et Titia. See lex iulia et titia. —Inst. 1.20.

Tutor falsus. See falsus tutor, pro tutore gerere, ACTIO PROTUTELAE.

Tutor fiduciarius. See tutela fiduciaria.

Tutor gerens. A guardian who factually administered the ward’s property (gerere), alone or together with another tutor (see contutores) and performed acts connected with the guardianship as a whole (admin- istratio tutelae). Ant. tutor cessans.—D. 26.7.

Sachers, RE 7A, 1523; Solazzi, RISG 54 (1914) 35.

Tutor honorarius (honoris causa datus). An honorary tutor. He was free from any responsibility since he actually did not participate in the management of the ward’s affairs.

Sachers, RE 7 A, 1522, 1578; Levy, ZSS 37 (1916) 71.

Tutor in litem. A tutor especially appointed for the defense of the ward’s interest in a trial against his guardian. In Justinian’s law a curator accomplished such a task.—See tutor praetorius.—C. 5.44.

Tutor legitimus. See tutela legitima. Tutor mulieris. See tutela mulierum.

Tutor notitiae causa datus. A guardian appointed in a testament, in addition to the principal guardian, who had to assist and instruct the latter (ad instruendos contutores) in the administration of the ward’s affairs. Normally he was the testator’s freedman who was acquainted with the ward’s affairs.

Sachers, RE 7 A, 1552; Levy, ZSS 37 (1916) 49.

Tutor optivus. See OPTIO TUTORIS.

Tutor praetorius. In the case of a controversy between the guardian and the ward during the guardianship the praetor appointed a special tutor who protected the ward’s interests in the trial. Under Justinian’s law a curator was appointed for this purpose. —See TUTOR IN LITEM.

Peters, ZSS 32 (1911) 221.

Tutor suspectus. A person who for various reasons (primarily of moral or financial nature) was not suitable for a specific guardianship. A guardian could be considered suspectus not only before he started the administration of the ward’s property, but also when he later performed an act or concluded a transaction from which by his fraud or negligence a considerable loss resulted for the ward, or when through his inexcusable absence he proved that he did not care for the ward’s interest. There were also other cases which rendered the tutor suspect, among them his open enmity against the pupillus and his family or his moral conduct (mores) which clearly indicated that he did not deserve confidence. A tutor suspectus could be denounced to the tutelary authority (postulare, accusare tutorem suspectum) by any one, but not by the ward himself ; when the allegations of the accuser proved true in a special proceeding (de suspect o tutore cognoscere), he could be removed (removere, remotio) from the guardianship. The removed tutor was branded with infamy only when his actions were fraudulent. The accusatio suspecti tu- toris (called also crimen suspecti tutoris) known already in the Twelve Tables, was in postclassical law extended to curators.—Inst. 1.26; D. 26.10; C. 5.43.

Sachers, RE 7A, 1556; Solazzi, La minore età (1912) 259; R. Taubenschlag, V ormundschaftliche Studien (1913) 27; Berger, ZSS 35 (1914) 39; Solazzi, BIDR 28 (1915) 131 ; idem, Istituti tutelari (1929) 207; R. Laprat, Crimen suspecti tutoris (1926); Kaden, ZSS 48 (1928) 699; Cardasela, RHD 28 (1950) 312.

Tutor temporarius. A guardian temporarily appointed when the tutor testamentarius or legitimus was absent (e.g., in the interest of the state) or temporarily unable to fulfill his duties (e.g., because of sickness).

Sachers, RE 1 A, 1521.

Tutore auctore. Refers to acts of the ward which could be performed only with the authorization of his guardian; see auctoritas tutoris, tutela, tutela MULIERUM.

Tutor io nomine agere. To act in court as a guardian in the interest of the ward.

Tutrix. A woman appointed as guardian. In classical law women were excluded from guardianship. Exceptions were introduced in postclassical law.—C. 3.27.—See tutor.

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Source: Berger Adolf. Encyclopedic Dictionary of Roman Law. Philadelphia: The American philosophical Society,1953. — 479 p.. 1953

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