IMPU´BES
IMPU´BES In the Roman law there were several
distinctions of age which were made with reference to the legal position of
a person. 1. The first period was from birth to the end of the seventh year,
during which time persons were called
infantes,
or
qui fari non possunt. 2. The second period
was from the end of seven years to the age of puberty, which came to be
fixed at the end of fourteen or twelve years, according as the person was a
male or female
[p. 1.1000]（
infantia
majores). 3. The third period was from the age of puberty to
the end of the twenty-fifth year, during which period persons were
adolescentes, adulti, puberes, minores xxv
annis or
annos or
annorum, or simply
minores [
CURATOR]. 4. The fourth period was from the age of twenty-five,
during which persons were
majores.
Thus impuberes were divided into two classes:
infantes or those under seven years of age, and
infantia majores or those above seven, who are
generally understood by the term
impuberes. An
impubes not in the power of a father, whether above or below infantia, was
subject in respect of his property to a guardian called
tutor, and hence the term
pupillus or ward is often used as equivalent to impubes. Of the
two classes of impuberes:--
1.
Infans, infantia.--Infans properly means
qui fari non potest. The phrase
qui fari potest is itself ambiguous; but the Romans
in a legal sense did not limit it to the mere capacity of uttering words,
which a child of two or three years old generally possesses, but they
understood by it a certain degree of intellectual development; and,
accordingly, the expression
qui fari potest
expressed not only that degree of intellectual development which is shown by
the use of speech, but also the capacity of speaking fluently and
grammatically, and so of using legal forms of words. A person while he was
an infans could not perform any legal act, nor could he incur any liability
on account of a delict. The termination of infantia was fixed from a very
early time by a positive rule of law at the end of the seventh year.
2.
Impuberes, infantia majores.--An impubes who had passed the
limits of infantia and was not in the power of a father could do any legal
act with the sanction (
auctoritas) of his
tutor; without the interposition of his tutor he could only do those acts
which were for his benefit, not such as might injure him. Accordingly, such
an impubes could be a promisee in a stipulation (
stipulari, stipulator), but he could not be the party making
the promise (
promittere, promissor); in other
words, as Gaius (3.107) expresses it, a pupillus could only be bound with
the sanction of his tutor, but he could bind another without such sanction
(cf. Inst. 1.21, pr. 1). An impubes who was pupillus could not release a
debt without the concurrence of his tutor, though he could enter into a
binding contract by himself that he should be released from a debt. He could
not pay money without his tutor; nor could he receive money without his
tutor in payment of a debt,--at least it was not a valid payment; but since
the rule as to the incapacity of an impubes was made only to save him from
loss, the praetor would not allow him to recover the debt again, while he
retained the benefit of the previous payment. He could enter into a
betrothal (
sponsalia) alone, because the
auctoritas of the tutor had reference only to property; and sponsalia did
not give rise to any liability to be sued. An impubes could not without the
sanction of his tutor be plaintiff or defendant in a suit. He could acquire
the ownership of property alone, but he could not alienate it, or manumit a
slave unless with the concurrence of his tutor. Such sanction was also
necessary to enable a pupillus to transfer possession of a thing; for though
possession as such was not founded on legal right, legal advantages were
attached to it. As to the acquisition of possession, possession itself being
a bare fact, and one of its fundamental conditions being the
animus possidendi, the pupillus could not properly
acquire possession for himself, till he was legally capable of an act of
will; but with the co-operation of his tutor he was allowed to acquire
possession, while he was an infans, and thus the acquisition of possession
by a pupillus was facilitated
utilitatis causa.
There was no formal difficulty in this case, because it was not necessary
that words should be used. Subsequently the legal doctrine was established
that a tutor could acquire possession for his pupillus (
Dig. 41,
2,
1.20).
An impubes could acquire a hereditas with the sanction of his tutor, which
sanction was necessary, because a heres was personally liable for the debts
of the deceased ; but in early times such acquisition could not be effected,
since the hereditas could only be acquired by means of a very formal act
(
actus legitimus), called
cretio, in which the tutor was incapable of
interposing. This difficulty was got over by the doctrine of
pro herede gestio: the tutor might permit the
pupillus to act as heres, which was allowed the same effect as cretio; and
this doctrine would apply even in the case of infantes, as no expression of
words was necessary in order to the
pro herede
gestio. In the case of the praetorian succession (
bonorum possessio), the father could apply for it on
behalf of his child, and the tutor on behalf of his pupillus, without any
act being done by the impubes. By the imperial legislation, a tutor was
allowed to acquire the hereditas for his pupillus, and the father for his
son, who was in his power, and therefore the doctrine of
pro herede gerere was rendered unnecessary in this case.
According to Savigny, the rule that an
impubes major
infantiâ could act for his own benefit without the
sanction of a tutor was unknown to the early civil law, which did not
recognise any act of a pupillus unless it was sanctioned by his tutor. But
as the age of puberty was only fixed because it was necessary to fix some
limit which might apply to all cases; and as in many cases, when a person
bordered on the age of puberty (
pubertati
proximus) and had not yet attained it, he might have sufficient
understanding to do many legal acts, a person who was
proximus pubertati was in course of time considered competent
to do certain legal acts without the auctoritas of a tutor, though to secure
him against fraud and mistake he could only do such acts as were for his own
advantage. This relaxation of the old law was beneficial both to the impubes
and to others; but owing to its being confined to such narrow limits of
time, it was of little practical use, and accordingly it was extended as a
positive rule to a longer period below the age of puberty. It was, however,
necessary to fix a limit here also, and accordingly it was determined that
such limited capacity to do legal acts should commence with the termination
of infantia, which, legally defined, is that period after which a person,
either alone or with a tutor, is capable cf doing legal acts. The principle
of the law
[p. 1.1001]was that a person could not act for
himself, until he had understanding enough to know what he was doing
(
qui jam aliquem intellectum habent); and
though a person who was not much above the age of infantia (
infanti proximus) might not have such understanding,
a more liberal interpretation was given to the law (
benignior juris interpretatio), by virtue of which a pupillus
who was
infanti proximus was placed on the same
footing as one who was
pubertati proximus.
(Compare Inst. 3.19, 10, with Gaius, 3.108.)
There has been considerable difference of opinion among commentators as to
the exact meaning of the terms
pubertati
proximus and
infantiae or
infanti proximus (Gaius, 3.109). (See Gensler, in
Ziv. Arch. 4.18; Dirksen, in
Rhein.
Mus. 1.316.) They signify respectively one who is near
attaining pubertas and one who has just outgrown infancy; but whether there
was an intermediate period during which an impubes was neither
infantiae proximus nor
pubertati
proximus, is doubtful.
An impubes who was in the power of his father could not bind himself by legal
acts even with the sanction of his father; for, in the case of a pupillus,
the auctoritas of the tutor was only allowed in respect of the pupillus
having property of his own, which a son in the power of his father could not
have.
An impubes
major infantia was liable on account of
his delicts, if he understood the nature of his acts, and there was a
presumption of such understanding in the case of an impubes
pubertati proximus. An impubes could not contract a
valid marriage.
According to the legislation of Justinian (Inst. 1.22) pubertas in the case
of a male was attained with the completion of the fourteenth, and in a
female with the completion of the twelfth year; but it seems probable that
in early Roman law the age of puberty might differ in individual cases
instead of being a fixed period. In the case of females, the rule of twelve
years was established much earlier than the corresponding rule in the case
of males, and was unquestionably the law according to the writings of the
jurists. (As to the ancient practice, see Serv. in
Aen. 7.53;
Quint.
Ded. 279.)
There was a dispute among the jurists as to the test for determining the
puberty of males. The Sabinians maintained that the age of puberty was to be
determined by physical capacity (
habitu
corporis), to ascertain which a personal examination might be
necessary; the Proculians fixed the age of fourteen complete, as that which
absolutely determined the attainment of puberty (Gaius, 1.196; Ulp.
Frag. 11, 28); and this latter view was, as we have seen,
confirmed by Justinian, fourteen being the ordinary age of puberty in males
and twelve in females. The view of the Proculians appears to have been that
of the ancient law, which was modified as manners became more refined (Cod.
5, 60, 3).
The attainment of puberty by a man was celebrated by sacrifices and by the
assumption of the toga virilis: thus
investis
is opposed to
vesticeps or
pubes. In Apuleius (
de Mag. 98) a tutor is blamed
for having given the toga virilis to his pupillus at too early an age
(Voigt,
Zuölf Tafeln, 1.32). On attaining puberty, a
man became capable of exercising public rights, though with some
restrictions. Thus a person could not participate in the Comitia Centuriata,
and was not liable for military service till he had reached
juventus, i.e. completed his seventeenth year.
(
Dionys. A. R. 4.16 ; Tubero,
Hist. bei Gell. 10.28, 1: cf.
Liv.
22.57,
9;
25.5,
8;
44.44,
3;--Plut.
C.
Gracch. 5, as cited by Voigt; see also Marquardt, 121.) As to the
protection given to
minores vigintiquinque annis,
see
CURATOR (Bynkershoek,
Obs. 3.24; Cramer,
de Pubert. termino;
Klein,
Schriften herausg. von Batjen, 40, &c.;
Savigny,
Syst. § 1091; Rossbach,
Römische Ehe, 273 f., 275 f., 403 f. ;
Marquardt,
Privatleben, 1.121 f.; Becker-Göll,
Gallus, 2.108 f.; Voigt,
Zwölf Tafeln, 1.32).
There appears to have been no practice among women, similar to that among
men, of adopting the toga virilis, as women probably wore the toga praetexta
till they were married. (See Rossbach,
Die Röm. Ehe,
273 and 417; and for a contrary opinion, Voigt,
ubi
supra, 1.32, n. 14, and
Rhein. Mus. f. Phil.,
N. F., 1878, 33.486.) It is to be noticed that, though the pupillaris tutela
ended with females on the completion of their twelfth year, they still
remained subject to tutela of a modified kind (
perpetua
tutela mulierum) until the later period of Roman law.
[
G.L] [
E.A.W]
