previous next


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]

hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: