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 p630  Impubes

Article by George Long, M.A., Fellow of Trinity College
on pp630‑631 of

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

IMPU′BES. An infans [Infans] was incapable of doing any legal act. An impubes, who had passed the limits of infantia, could do any legal act with the auctoritas of his tutor; without such auctoritas he could only do those acts which were for his benefit. Accordingly such an impubes could stipulate (stipulari), but not promise (promittere); in other words, as Gaius (III.107) expresses it, a pupillus could only be bound by the auctoritas of his tutor, but he could bind another without such auctoritas. [Infans]

But this remark as to pupilli only applies to those who had understanding enough to know what they were doing (qui jam aliquem intellectum habent), and not to those who were infantes or Infanti proximi, though in the case of the infanti proximi a liberal interpretation was given to the rule of 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, but this was done for their benefit only (propter utilitatem eorum), and therefore could not apply to a case where the pupillus might be a loser (cf. Inst. III. tit. 19 s10 with Gaius, III.108). An impubes who was in the power of his father, could not bind himself even with the auctoritas 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.

In the case of obligationes ex delicto, the notion of the auctoritas of a tutor was of course excluded, as such auctoritas was only requisite for the purpose of giving effect to rightful acts. If the impubes was of sufficient capacity to understand the nature of his delict, he was bound by it; otherwise, he was not. In the case of a person who was Pubertati proximus, there was a legal presumption of such capacity; but still this presumption did not exclude a consideration of the degree of understanding of the impubes and the nature of the act, for the act might be such as either to be perfectly intelligible, as theft, or it might be an act which an impubes imperfectly understood, as when he was made the instrument of fraud. These principles were applicable to cases of furtum, damnum injuria datum, injuria, and others; and also to crimes, in which the nature of the act mainly determined whether or not guilt should be imputed.

An impubes could enter into a contract by which he was released from a debt, but he could not release a debt without the auctoritas of his tutor. He could not pay money without his tutor; nor could he receive money without his tutor, at least it was not a valid payment, because such payment was, as a consequence, followed by a release to the debtor. But since the rule as to the incapacity of an impubes was made only to save him from loss, he could not retain both the money and the claim.

An impubes could not be a plaintiff or a defendant in a suit without his tutor. He could acquire the owner­ship of property alone, but he could not alienate it without the consent of his tutor, nor could he manumit a slave without such consent. He could contract sponsalia alone, because the auctoritas of the tutor has reference only to property; if he was in his father's power, he was of course entirely under his father's control.

An impubes could acquire an hereditas with the consent of his tutor, which consent was necessary, because an hereditas was accompanied with obligations. But as the act of cretion was an act that must be done by the heres himself, neither his tutor nor a slave could take the hereditas for a pupillus, and he was in consequence of his age incapable of taking it himself. This difficulty was got over by the doctrine of pro herede gestio: the tutor might permit the pupillus to act as heres, which had the effect of cretion; and this doctrine would apply even in the case of infantes, for no expression of words was necessary in order to effectº the pro herede gestio. In the case of the bonorum possessio, the father could apply for it on behalf of his child, and the tutor on behalf of his pupillus, without any act  p631 being done by the impubes. By the imperial legislation, a tutor was allowed to acquire the hereditas for his pupillus, and a father for his son, who was in his power; and thus the doctrine of the pro herede gestio was rendered unnecessary.

A pupillus could not part with a possession without the auctoritas of a tutor, for though possession of itself was no legal right, legal advantages were attached to it. As to the acquisition of possession, possession in itself being a bare fact, and the fundamental condition of it being the animus possidendi, consequently the pupillus could only acquire possession by himself, and when he had capacity to understand the nature of his act. But with the auctoritas of his tutor he could acquire possession even when he was an infans, and thus the acquisition of possession by a pupillus was facilitated, utilitatis causa. There was no formal difficulty in such possession any more than in the case of pro herede gestio, for in neither instance was it necessary for words to be used. Subsequently the legal doctrine was established that a tutor could acquire possession for his pupillus (Dig. 41 tit. 2 s1 §20).

With the attainment of pubertas, a person obtained the full power of his property, and the tutela ceased: he could also dispose of his property by will; and he could contract marriage. According to the legislation of Justinian (Inst. I tit. 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. The Sabiniani maintained that the age of pubertas was to be determined by physical capacity ( habitu corporis), to ascertain which a personal examination might be necessary; the Proculiani fixed the age of fourteen complete, as that which absolutely determined the attainment of puberty (Gaius, I.196; Ulp. Frag. XI.28). It appears, therefore, that under the earlier emperors there was some doubt as to the time when pubertas was attained, though there was no doubt that with the attainment of puberty, whatever that time might be, full legal capacity was acquired.

Until a Roman youth assumed the toga virilis, he wore the toga praetexta, the broad purple hem of which (praetexta) at once distinguished him from other persons. The toga virilis was assumed at the Liberalia in the month of March,​a and though no age appears to have been positively fixed for the ceremony, it probably took place as a general rule on the feast which next followed the completion of the fourteenth year; though it is certain that the completion of the fourteenth year was not always the time observed. Still, so long as a male wore the praetexta, he was Impubes, and when he assumed the toga virilis, he was Pubes. Accordingly, Vesticeps (Festus, s.v.) was the same as Pubes, and Investis or praetextatus the same as Impubes (Gell. V.19. Vesticeps). After the assumption of the toga virilis, the son who was in the power of his father had a capacity to contract debts; and a pupillus was released from the tutela. But if neither the pupillus wished to get rid of his tutor, nor the tutor to be released from the responsibility of his office (for which he received no emolument), the period of assuming the toga virilis might be deferred. If the pupillus and the tutor could not agree, it might be necessary that there should be a judicial decision. In such case the Proculiani maintained as a theoretical question, that the age of fourteen should be taken as absolutely determining the question, fourteen being the age after the attainment of which the praetexta had been generally laid aside. The Sabiniani maintained that as the time of puberty had never been absolutely fixed, but had depended on free choice, some other mode of deciding the question must be adopted, where free choice was out of the question, and therefore they adopted that of the physical development (habitus corporis). But though there are allusions to this matter (Quinct. Inst. Or. IV.2), there is no evidence to show that inspection of the person was ever actually resorted to in order to determine the age of puberty. It appears that the completion of fourteen years was established as the commencement of pubertas. The real foundation of the rule as to the fourteen and the twelve years appears to be, that in two sexes respectively, puberty was, as a general rule in Italy, attained about these ages. In the case of females, the time had been fixed absolutely at twelve by immemorial custom, and had no reference to any practice similar to that among males of adopting the toga virilis, for women wore the toga praetexta until they were married. And further, though the pupillaris tutela ended with females with the twelfth year, they were from that time subject to another kind of tutela.

A male had a capacity to make a will upon completing his fourteenth, and a female upon completing her twelfth year (Gaius, II.113; Paulus, S.R. III. tit4a); and the same ages, as already observed, determined the capacity, in the two sexes, for contracting a legal marriage. The dispute between the two schools as to the time when the male attained the age of puberty, appears to have had reference to the termination of the tutela, and his general capacity to do legal acts; for the test of the personal examination could hardly, from the nature of the case, apply to the capacity to make a will or contract a marriage, as Savigny shows.

Spadones (males who could never attain physical pubertas) might make a testament after attaining the age of eighteen (Savigny, System des heut. Röm. Rechts, vol. III p55, &c.).

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Thayer's Note:

a The toga virilis was assumed at the Liberalia: In imperial times, according to Platner, this ceremony took place in the Temple of Mars Ultor.

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