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On this page: Impluvium – Impubes

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IMPUBES.

specially conferred by a Lex Curiata, and was not incident to any office ; (3) a power without which no military operation could be considered as done in the name and on the behalf of the state. Of this a notable example is recorded in Livy (xxvi. 2), where the senate refused to recognise a Roman as a commander because he .had not received the Imperium in due form.

In respect of his Imperium, he who received it was styled imperator (avTOKpdr&p*) : he might be a consul or a proconsul. It was an ancient practice, observes Tacitus-(Ann. iii. 74), for the soldiers of a victorious general to salute him by the title of imperator ; but in the instance referred to by Tacitus, the Emperor Tiberius allowed the soldiers to confer the title on an individual who had it not already, while under the republic the title as a matter of course was given with the Imperium ; and every general who received the Imperium was entitled to the name of imperator. After a victory it was usual for the soldiers to salute their com­mander as imperator, but this salutation neither gave nor confirmed the title. Under the republic, observes Tacitus, there were several imperatores at a time: Augustus granted the title to some ; but the last instance, he adds, of the title being conferred was in the ease of Blaesus, under Tiberius. There were, however, later instances. The assumption of the praenomen of imperator by Julius Caesar (Suet. Caes. c. 76) was a usurpation ; or it may have been conferred by the senate (Dion Cassius, xliii. 44). Under the republic the title came properly after the name ; thus Cicero, when he was proconsul in Cilicia, could properly style himself M. Tullius Cicero Imperator, for the term merely expressed that he had the Imperium. Ti­berius and Claudius refused to assume the prae­nomen of Imperator, but the use of it as a prae-nomeri became established among their successors, as we see from the imperial coins. The title Im­perator sometimes appears' on the imperial medals, followed by a numeral (VI, for instance), which indicates that it was specially assumed by them on the occasion of some great victory ; for though the victory might be gained by their generals, it was considered to be gained under the auspices of the Imperator.

The term Imperium was applied in the republi­ can period to express the sovereignty of the Ro­ man state, Thus Gaul is said by Cicero (Pro Font. 1) to have come under the Imperium and Ditio of the Populus Roinanus ; and the notion of the Majestas Populi Romani is said to be " in Imperii atque in nominis populi Romani dignitate." (Cic, Or. Part. 30.) Compare the use of Impe­ rium in Horace, Od. i. 37, iii. 5. [G. L.]

IMPLUVIUM. [Donas, p. 427, b.J

IMPUBES. An infans [!nfans] 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 pupilius could only be bound by the auctoritas of his tutor, but he could bind another without such auctoritas. [!nfans]

But this remark as to pupilli only applies to those who had understanding enough to know what they were doing (qui jam aliqaem intellectum ha-

1MPUBKS.

and not to those who were infantes or Infantr proximi, though in the case of the infanti proximi a liberal interpretation was given to the rule of law (ienignior juris interpretatio)^ by virtue of which a pupilius, who was infanti proximns, was placed on the same footing as one who was pubertati proximus, but this was done for their benefit only (propter utilitatem eoruni), and therefore could not apply to a case where the pupilius might be a loser (Compare Inst. iii. tit. 19.s. 10 with Gains, 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 cas-e of a pupilius, the auc­toritas of the tutor was only allowed, in respect of the pupilius 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, dam-num 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 necessaiy, 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 pupilius, 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 pupilius 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 the pro herede gestio. In the case of the bonoram possessio, the father could apply for it on behalf of his child, and the- tutor on behalf of his pupilius, without any act

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