The Ancient Library

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turn, Rapina, Injuriae, and Dolus Malus, provided the offender was condemned in his own name, or provided in his own name he paid a sum of money by way of compensation ; of condemnation in an ac­tion Pro Socio, Tutelae, Mandatum, Depositum or Fiducia (compare the Edict with Cic. pro Rose. Com. 6, pro Rose. Amer. 38, 39, pro Caecina, 2, Top. c. 10; Tab. Heracl. 1. Ill), provided the offender was condemned in his own name. Infamia only followed for a condemnatio in a directa actio, not if a man was condemned con-trario judicio, unless the person condemned was guilty of some special dishonesty. Infamia was also a consequence of insolvency, when a man's bona were Possessa, Proscripta, Vendita (Cic. pro Quint. 15 ; Tab. Heracl. 1. 113—117 ; Gaius, ii. 154) ; of a widow marrying within the time ap­pointed for mourning, but the Infamia attached to the second husband, if he was a paterfamilias, and if he was not, then to his father, and to the father of the widow if she was in his power ; the Edict does not speak of the Infamia of the widow, but it was subsequently extended to her. Infamia was a consequence of a man being at the same time in the relation of a double marriage or double sponsa-lia ; the Infamia attached to the man if he was a paterfamilias, and if he was not, to his father ; the Edict here also speaks only of the man, but the Infamia was subsequently extended to the woman. Infamia was a consequence of prostitution in the case of a woman, of similar conduct in a man (qui muliebria passus est\ of Lenocinium or gaining a living by aiding in prostitution (Tab. Heracl. 1. 123) ; of appearing on a public stage as an actor, of engaging for money to appear in the fights of the wild beasts, even if a man did not appear, and of appearing there, though not for money.

It results from this enumeration that Infamia was only the consequence of an act committed by the person who became Infamis, and was not the consequence of any punishment for such act. In some cases it only followed upon condemnation ; in others it was a direct consequence of an act, as soon as such act was notorious.

It has sometimes been supposed that the Prae­tor established the Infamia as a rule of law, which however was not the case. The Praetor made cer­tain rules as to Postulatio (Dig. 3. tit. 1. s. 1), for the purpose of maintaining the purity of his court. With respect to the Postulatio, he distributed per­sons into three classes. The second class compre­hended, among others, certain persons who were turpitudine notdbiles, who might postulate for them­selves but not for others. The third class contained, among others, all those " qui Edicto Praetoris ut infames notantur," and were not already enume­rated in the second class. Accordingly it was necessary for the Praetor to enumerate all the In­fames who were not included in the second class, and this he did in the Edict as quoted. (Dig. 3. tit. 2. s, 1.) Consistently with this, Infamia was al­ready an established legal condition ; and the Prae­tor in his edicts on Postulation did not make a class of persons called Infames, but he enumerated as persons to be excluded from certain rights of Postulation, those who were Infames. Conse­quently the legal notion of Infamia was fixed before these edicts.

It is necessary to distinguish Infamia from the Nota Censoria. The Infamia does not seem to have been created by written law, but to have


been an old Roman institution. In many cases, though not in all, it was a consequence of a judi­cial decision. The power of the Censors was in its effects analogous to the Infamia, but different from it in many respects. The Censors could at their pleasure remove a man from the Senate or the Equites, remove him into a lower tribe, or remove him out of all the tribes, and so deprive him of his suffragium, by reducing him to the condition of an aerarius. (Cic. pro Cluent. 43, 45.) They could also affix a mark of ignominy or censure opposite to a man's name in the list of citizens, nota censoria or subscriptio (Cic. pro Cluent. 42, 43, 44, 46, 47) ; and in doing this, they were not bound to make any special inquiry, but might follow general opinion. This arbitrary mode of proceeding was however partly remedied by the fact that such a censorian nota might be opposed by a colleague, or removed by the following censors, or by a judicial decision, or by a lex. Accordingly the censorian nota was not perpetual, and therein it differed essentially from Infamia, which was perpetual.

The consequences of Infamia were the loss of certain political rights, but not all. It was not a capitis deminutio, but it resembled it. The In-famis became an Aerarius, and lost the suffragium and honores ; that is, he lost the capacity for cer­tain so-called public rights, but not the capacity for private rights. Under the empire, the Infamia lost its effect as to public rights, for such rights became unimportant.

It might be doubted whether the loss of the suffragium was a consequence of Infamia, but the affirmative side is maintained by Savigny with such reasons as may be pronounced completely con­clusive. It appears from Livy (vii. 2) and Valerius Maximus (ii. 4. § 4), that the Actores Atellanarum were not either removed from their tribe (nee tribu moveniw"), nor incapable of serving in the army: in other words such actors did not become Infames, like other actors. The phrase " tribu moveri " is ambiguous, and may mean either to remove from one tribe to a lower, or to move from all the tribes, and so make a man an aerarius. Now the mere re­moving from one tribe to another must have been an act of the Censors only, for it was necessary to fix the tribe into which the removal was made: but this could not be the case in a matter of In­famia, which was the effect of a general rule, and a general rule could only operate in a general way ; that is, " tribu moveri," as a consequence of In­famia, must liave been a removal from all the tribes, and a degradation to the state of an Aera­rius. (Compare Liv. xlv. 15.)

The Lex Julia Municipals does not contain the word Infamia, but it mentions nearly the same cases as those which the Edict mentions as cases of Infamia. The Lex excludes persons who fall within its terms, from being Senatores, Decuriones, Conscripti of their city, from giving their vote in the senate of their city, and from magistracies which gave a man access to the senate : but it says nothing of the right of voting being taken away. Savigny observes that there would be no incon­sistency in supposing that the lex refused only the Honores in the municipal towns, while it still allowed Infames to retain the suffragium in towns, though the practice was different in Rome, if we consider that the suffragium in the Roman Comitia was a high privilege, while in the munici­pal towns it was comparatively unimportant

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