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p636 Infans

Article by George Long, M.A., Fellow of Trinity College
on pp636‑637 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

INFANS, INFANTIA In the Roman law there were several distinctions of age which were made with reference to the capacity for doing legal acts:

  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 end of fourteen or twelve years, according as the person was a male or a female, during which persons were defined as Qui fari possunt. The persons included in these first two classes were Impuberes.

  3. The third period was from the end of the twelfth or fourteenth to the end of the twenty-fifth year, during which period persons were Adolescentes, Adulti.
    The persons included in these three classes were minores XXV annis or annorum, and were often, for brevity's sake, called minores only [Curator]; and the persons included in the third and fourth class were Puberes.

  4. The fourth period was from the age of twenty-five, during which persons were Majores.

The term Impubes comprehends Infans, as all Infantes are Impuberes; but all Impuberes are not Infantes. Thus the Impuberes were divided into two classes; Infantes or thus under seven years of age, and those above seven, who are generally understood by the term Impuberes. Pupillus is a general name for all Impuberes not in the power of a father (Dig. 50. tit. 16 s.239).

The commencement of Pubertas was the commencement of full capacity to do legal acts. Before the commencement of Pubertas, a person, according to the old civil law, could do no legal act without the auctoritas of a tutor. This rule was made for those Impuberes who had property of their own; for it could have no application of the Impuberes who were in the power of a father. Now the age of pubertas was fixed as above mentioned, on the supposition that persons were then competent to understand the nature of their acts, and the age of twelve or fourteen was only fixed because it was necessary to fix some limit which might apply to all cases; but it was obvious that 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. Accordingly, a person who was proximus pubertati was in course of time considered competent to do certain legal acts without the auctoritas of a tutor; but to secure him against fraud or 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; but still with the same limitation; the Impubes could do not act to his prejudice without the auctoritas of a tutor. 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 of doing legal acts.

Infans properly means Qui fari non potest; and he of whom could be predicated, Fari potest, was not Infans, and was capable of doing certain legal acts. The phrase Qui fari potest is itself ambiguous; but the Romans, in a legal sense, did not limit it to the mere capacity of to uttering words, which a child of two or three years 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 intelligible speech, but also a capacity for legal acts in which speech was required. Thus the period of infantia was extended beyond that which the strict etymological meaning of the word signifies, and its termination was fixed by a positive rule at the end of the seventh year, as appears by numerous passages (Dig. 26 tit. 7 s.1; 23 tit. 1 s.14; Cod. 6 tit. 30 s.18; Quintilian, Inst. Or. I.1; Isidorus, Orig. XI.2).

The expressions proximus pubertati, and proximus p637infantiae or infanti (Gaius, III.109), are used by the Roman jurists to signify respectively one who is near attaining Pubertas, and one who has just passed the limit of Infantia (Savigny, System des heut. R. R. vol. III) [Impubes]

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