The Ancient Library

Scanned text contains errors.

On this page: Infans



Cicero (pro Rose. Com. 6) speaks of the judicia Fiduciae, Tutelae, and Societatis as " summae existimationis et pene capitis." In another oration (pro Quint. 8, 9, 13, 15, 22) he speaks of the ex edicto possessio "bonorum as a capitis causa, and in fact as identical with Infamia (c. 1.5, cujus bona ex edicto possidentur. hujus omnis fama et exis-iimatio cum bonis simul possidetur). This capitis minutio, however, as already observed, affected only the public rights of a citizen ; whereas the capitis deminuto of the imperial period and the expression capitalis causa, apply to the complete loss of citizenship. This change manifestly arose from the circumstance of the public rights of the citizens under the empire having become alto­gether unimportant, and thus the phrase capitis deminutio, under the empire, applies solely to the individual's capacity for private rights.

In his private rights the Infamis was under some incapacities. He could only postulate before the Praetor on his own behalf, and on behalf of certain persons who were very nearly related to him, but not generally on behalf of all 'persons. Consequently he could not generally be a Cognitor or a Procurator. Nor could a cause of action be assigned to him, for by the old law he must sue as the cognitor or procurator of the assignor (Gaius, ii. 39) ; but this incapacity became unimportant when the Cessio was effected by the utiles actiones without the intervention of a Cognitor or Procu­ rator. The Infamis could not sustain a Popularis Actio, for in such case he must be considered as a procurator of the state. The Inf&mis was also limited as to his capacity for marriage, an incapa­ city which originated in the Lex Julia. (Ulp. Frag. xiii.) This lex prohibited senators, and the chil­ dren of senators, from contracting marriage with Libertini and Libertinae, and also with other dis­ reputable persons enumerated in the lex: it also forbade all freemen from marrying with certain disreputable women. The Jurists made the fol­ lowing change: — they made the two classes of disreputable persons the same, which were not the same before, and they extended the prohibition, both for senators and others, to all those whom the Edict enumerated as Infames. The provisions of the Lex Julia did not render the marriage null, but it deprived the parties to such marriage of the privi­ leges conferred by the lex ; that is, such a marriage did not release them from the penalties of celibacy. A senatus-consultum, under M. Aurelius, however, made such marriage null in certain cases. (Savigny, System, &c., vol. ii.) [G. L.J


INFANS, INFA'NTIA. 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 denned as those 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 xninores 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 those 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 to 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, ]aut 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 pubert)\ ; but still with the same limitation: the Impube^s could do no 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 uttering words, which a child of two or three years generally pos­sesses, but they understood by it a certain degree of intellectual developement; 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 proxi-

About | First | English Index | Classified Index | Latin Index | Greek Index



page #  
Search this site
All non-public domain material, including introductions, markup, and OCR © 2005 Tim Spalding.
Ancient Library was developed and hosted by Tim Spalding of