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INFA´MIA The infamia at Rome was a moral censure pronounced by a competent authority in the state on individual members of the community, as a result of certain actions which they had committed, or certain modes of life which they had pursued. This censure involved disqualification for certain rights in public and private law, and the persons so censured and disqualified were called infames. A clear conception of the grounds and consequences of infamia can only be gathered from a consideration of the specific modes of its exercise. There is hardly a term in Roman law which admits so little as this of a general description, and this is owing to the impossibility of tracing the development of rules out of a practice which was originally not regulated by any certain rules. That principles were developed which specified with some accuracy the kinds of actions which produced infamia, and perhaps also the kinds of disqualification which followed it, we know from the definite enumeration of such actions in the title of the Digest which treats of the subject (Dig. 3, 2), from the Lex Julia Municipalis of 45 B.C. (C. I. L. n. 206), and to a less degree from the Lex Acilia Repetundarum of 123 B.C. (C. I. L. n. 198). These enumerate on the whole similar kinds of actions as producing infamia; but the disqualifications are in each case dissimilar, and adapted to the special spheres of action of which the documents severally treat. Of these the title in the Digest, which treats of infamia only so far as it affected procedure in the praetor's court, gives the clearest answer to the question “What constitutes infamia?” but an answer only applicable to an age when the idea had reached its final form. The answer to the question “What were the consequences of infamia?” is only given with reference to the special object considered, which is here the working of the praetor's court. When we look from the praetorian to what was probably its original source, the censorian infamia, we are leaving codification and coming to scattered facts of history. The relation of the censor's to the praetor's infamia is indeed difficult to establish. There are two alternative suppositions possible as to their connexion, either that they were pursued independently of one another, or that the praetorian was based on the censorian. It is not a distinction of much importance in one respect, because in both cases the grounds of infamia would probably have coincided, though the purposes would have differed. But, as the only object of the praetorian infamia was to preserve the dignity of the praetor's court ( “dignitatis tuendae et decoris sui causa,” Dig. 3, 1, 1), it seems more natural on the whole that it should have been based on the censorian, which had the more important object of excluding from service to the state, from the army, the senate and the comitia, people who were disgraced by unworthy acts or occupations. This will justify us in treating infamia under two aspects, its primary and its secondary. Primarily it is a matter of public law, as shown in the censor's exercise of it, in the Lex Acilia and the Lex Julia Municipalis. Secondarily it is a matter of private law, as shown in the list of those “qui edicto praetoris ut infames notantur” (Dig. 3, 1, 1.8). The questions to be considered are the causes of infamy, its primary and its secondary effects.

The original view of infamy being that it was a course pursued in the public interest, the causes of infamy were those acts which it was considered would render a man unworthy of continuing to perform the public duties with which he was invested. The power of pronouncing this moral verdict rested with the censor, and was originally not an extraordinary power added to his other functions, but one arising naturally out of his duty of registering the names of Roman citizens in their several orders on the occasion of a census; although at a later period the censor might summon citizens at other times than when the census was in progress. It was a duty exercised in the interests of the whole state, and was a standing safeguard for the preservation of the πάτρια ἔθη of the community (Dionys. A. R. 19.16), regulated originally not by fixed rules, but by the standard of morality or respectability which it was conceived should be maintained by each of the three orders--the senate, the equites, and the voting and military populace (Cic. de Leg. 3.3, 7, “censores mores populi regunto; probrum in senatu ne relinquunto ;” Liv. 4.8, 2, “in senatu equitumque centuriis decoris dedecorisque discrimen sub dicione ejus magistratus esset :” cf. Liv. 42.3, 7; 40.46, 1). The profession, for instance, which disqualified for office would not have disqualified for the right of voting; while some professions, such as that of an actor, disqualified for every honour. The censor's power in this case closely resembles that of the consul, who can refuse to receive the names of those candidates for office whom he deems unworthy of the position they desire to fill (Vell. 2.92). There were no fixed rules to bind either magistrate: and much as the censor's decisions resembled a trial at law in outward appearance, in the accusation that was usually, though not always, put forward by a third party (Liv. 39.42, 7), and the defence which was permitted to the accused (Plut. C. Gracch. 2), it differed from it in the fact that there were no fixed rules of procedure for conducting the case, and no fixed rules of law for binding the decision arrived at (Cic. Clu. 45, 126, “censores nihil se testibus, nihil tabulis, nihil denique causa cognita statuisse dicent” ). It was not a judicium, says Cicero, but an animadversio and an exercise of auctoritas (Cic. Clu. 42, 117), and it was not followed by strictly penal consequences. Though it might [p. 1.1007]disqualify, it did not punish, and the result of the censor's judgment was only ignominia (Cic. de Repub. 4, 6, “ut omnis ea judicatio versatur tantum modo in nomine, animadversio illa ignominia dicta est” ). The process was spoken of as a notatio, from the nota which the censor wrote under the name of the person affected (Liv. 39.42, 6, “ut censores motis e senatu adscriberent notas ;” Cic. Clu. 45, 118, “subscriptiones” ), the offence which formed the ground of censure being usually spoken of as a probrum. An attempt was made to check the arbitrary employment of this notatio by a plebiscitum passed in 58 B.C. by Publius Clodius. This enjoined that the individual, before being subjected to ignominia, must be condemned by both censors and must be impeached by a third party (Ascon. in Pison. p. 9; D. C. 38.13). This would have taken the initiative from the censor, and in this respect, as well as in the closer investigation which this change necessitated, brought the censorian process nearer to a process of law. But this plebiscitum was soon abrogated, and since the censor's decisions continued to be arbitrary it is little wonder that they did not become permanent. They might be set aside at each new lustrum by the incoming censor; and since the modes of decision were not fixed, the decisions themselves were not respected. Yet we find that, in the case of certain offences that involved ignominy, a permanent character had begun to be given by succeeding censors to a decision once pronounced. This was the case with perjury (Cic. de Off. 1.1. 3, 40, “eos omnes censores, quoad quisque eorum vixit, quia pejerassent, in aerarios reliquerunt” ), with condemnation in a disgraceful suit (Cic. Clu. 42, 119, “turpi judicio damnati in perpetuum omni honore ac dignitate privantur” ), and especially in the case of disgraceful professions, such as that of an actor was accounted. The precedent having been established that this disqualified for all civic honours (Augustin. de Civ. Dei, 2.12, “genus id hominum tribu moveri notatione censoria voluerunt;” Tertull. de Spect. 22, “scenicos manifesto damnant ignominia et capitis deminutione” ), it was natural that it should continue to be respected, and thus we find how the censorian infamia came to assume in time a tralaticiory character that gives us the permanent categories in the Lex Julia Municipalis and in the Digest. Certain standing offences came to be regarded as necessarily involving notatio, and as involving a notatio that the censors thought fit to make permanent; and we would naturally expect that offences which were thought deserving of a permanent notatio would involve the most serious disqualification, that of exclusion from all civic duties. It is possible, therefore, to say with Savigny, that there were a class of offences involving permanent disqualification, and that of the most severe kind, and we may safely seek such cases in later documents, such as the praetor's edict in the Digest; but that these cases had the exclusive title of infamia, and that this was distinguished from the censoria notatio, can hardly be established from the evidence adduced (Cic. Clu. 42, 119; Dig. 48, 7 ; Cod. 12, 1, 2; Savigny, System, 2. § § 76 sq.).

If we turn to the special cases on which the censor laid the mark of ignominy, we shall find that they comprehend breaches of almost all the duties to society, from family to state obligations. In the higher spheres of office the ex-magistrate might be degraded for a misuse of his powers (Plut. TG 2 ; Liv. 44.16, 8), the judex for accepting bribes (Cic. Clu. 42, 119), the soldier for shirking service (Liv. 24.18) or showing cowardice or disobedience in battle (Liv. 27.11 ; V. Max. 2.9, 7). As regards the mass of citizens, we find that the misuse of the right of voting called down the infamia, as we find in the case of the censor who disqualified the whole burgess community, “quod et innocentem se condemnassent et condemnatum consulem et censorem fecissent” (Liv. 29.37). Further, any disgrace that attached to appearance in a court of law, false witness and false oaths (Cic. de Off. 3.3. 1, 111), criminal condemnation in a judicium populi, theft and some other private delicts ( “furtum et captae pecuniae,” Cic. Clu. 42, 120), and dishonourable conduct in trade (Suet. Aug. 39), involved infamy. It was also the result of certain professions, such as that of a mime (Macrob. Saturn. 2.7, 3), and of dishonour attaching to a man in private life, arising from non-performance of the sacra gentilicia (Dionys. A. R. 20.13), misuse of the powers of divorce (V. Max. 2.9, 2), and even from bad husbandry, neglect of property (Plin. Nat. 18.11), and luxurious living (Plut. TG 14). When we turn from these instances to the more definite categories of offences mentioned in the Lex Julia Municipalis and in the praetor's edict (Dig. 3, tit. 2, “De his qui notantur infamia;” Cod. 2.12, “ex quibus causis infamia irrogatur” ), we find that infamia followed condemnation on account of a criminal offence, originally when calumnia or praevaricatio had been established (Dig. 3, 2, 1), but finally as a result of any condemnation in a judicium publicum (Dig. 48, 1, 7 ; Just. Inst. 4.18, 2), to expulsion of soldiers from the army ignominiae causa (cf. Lex Jul. Munic. 1. 121), and to perjury of certain kinds; to certain private delicts, theft, robbery, injury, and deceit (dolus malus), the infamia extending to cases of compromise ( “damnatus pactusve est,” Dig. 2, 2, 1) and to usury (Cod. 2, 12, 20); to breaches of other obligatory relations, such as pro Socio, Tutelae, Mandati, Depositi (Dig. l.c.: cf. Cic. pro Rosc. Com. 6; Lex Jul. Munic. 1. 111), and to insolvency in regard to all obligations ( “bona possessa, proscripta, vendita,” Cic. pro Quinct. 15; Lex Jul. Munic. 11. 113-117; Gaius, 2.154); to certain acts concerning the relations of the sexes: one who has married or given in marriage a woman before the period of mourning has elapsed, or has been the cause of double marriage or double sponsalia with a woman, is infamis. Infamia was also attached to the keeping of a house of ill-fame and to certain professions, such as those of actors and gladiators (Dig. l.c.; Lex Jul. Munic. 11. 117 and 123). It will be seen from these instances that infamia always follows as the result of a personal act, and depends, as Savigny says, either on a judicial sentence or on an extrajudicial matter of fact.

The primary effect of infamia was always a disqualification for certain public rights. The [p. 1.1008]nature of the disqualification depended partly on the rank of the person disqualified, but was always regulated to some degree by the gravity of the offence. The senator, guilty of an action that disgraced his position, was removed from the list (V. Max. 2.9, 2), the knight was forced to give up his position in the equestrian centuries (Liv. 29.37, 9), and the commoner was removed from the tribe ( “tribu moveri” ). This expression of “removal from the tribe” may signify two distinct kinds of disqualification: either the minor one of removal from a higher to a lower tribe (Liv. 45.15, “neque enim, si tribu movere possit, quod sit nihil aliud quam mutare jubere tribum, ideo omnibus quinque et triginta tribubus emovere posse, id est civitatem libertatemque eripere :” cf. Cic. Clu. 43, 122), or the severest disqualification of relegation from all the thirty-five tribes to the position of an aerarius (Liv. 42.10, “omnes quos senatu moverunt, quibusque equos ademerunt, aerarios fecerunt et tribu moverunt” ), that is, to the position of “civitas sine suffragio,” in which, as Livy says, “libertas civitasque,” so far as the active manifestations of political life were concerned, were wholly lost. Thus this extreme disqualification is spoken of as a “capitis minutio,” and certain actions which were held by the censors necessarily to involve it are spoken of by Cicero as “summae existimationis et paene dicam capitis” (Cic. pro Rosc. Com. 6). The fact that certain actions could be spoken of as necessarily involving this extreme infamia shows that disqualification was not wholly regulated by rank. The magistrate who has misused his functions, and the eques who has disgraced himself in war, may not only lose their rank in the senate and the equestrian centuries, but be relegated to the position of aerarii (Liv. 44.16, 8; V. Max. 2.9, 7). And it is extremely probable, as has been stated, that certain offences, by whomsoever they were committed, came to be considered as necessarily involving this relegation, and in the case of such offences the principle may have been upheld that the relegation should be permanent; that is, that it should be sanctioned in turn by each succeeding censor. In this way a table of actions that involved infamia might be drawn up and applied in various ways. In the Lex Julia Municipalis it is applied for the exclusion of unworthy members from the local senate of “conscripti” or “decuriones” : and as early as the Lex Acilia certain acts (such as service as a gladiator) and circumstances (such as condemnation in a judicium publicum) were taken as involving perpetual disqualification from the bench of judices which the law created (Lex Acilia, 100.13).

If we turn from the primary or public law to the secondary or private law effects of infamy, we find that these arose from the mode in which the praetor's edict was framed. In the edict three classes of individuals were distinguished as regards their capacity to postulate (Dig. 3, 1, “de postulando” ). The first class was composed of those not able to postulate for themselves, the second of those able to postulate only for themselves, and the third of those able to postulate for themselves, and only in exceptional cases for others. In this third class were included “omnes qui edicto praetoris ut infames notantur” (Dig. 3, 1, 1, 8). This limited capacity for postulation, which was a restriction originating solely from the praetor's regard for the dignity of his court, was followed by some important consequences. One of its results was that an infamous person could not, as a rule, act as a cognitor nor as a procurator (Fragm. Vatic. 322-324). The consequence of this was that no action could be assigned to an infamous person, because all such assignments took the form of commissions to a cognitor or procurator. This effect of infamy was, however, counteracted by the form of assignment known as utiles actiones. These did not require the nomination of a cognitor or procurator; and as the person to whom the assignment was made in this form prosecuted the claim in his own name ( “utiliter eam movere suo nomine conceditur,” Cod. 4, 39, 9), an infamous person to whom postulation in his own interest was never forbidden could not be excluded. Another result of the limitation of the power of postulation by an infamous person was that no such person could undertake a popular is actio; that is, a case in which a money penalty was enforced on behalf of the state, because the sustainer of such an action was a procurator of the state, (Dig. 47, 23, 4). An adversary could not be compelled to contest an action with a procurator who was infamis, or with a procurator appointed by at infamis. He could put forward an exceptio, which the praetor was bound to grant. These exceptiones were finally removed by Justinian (Inst. 4.3, 11).

A distinction between the working of infamia in the time of the Republic and of the Empire respectively arose from the relative importance of civic honours in these two periods. During the Republic the civic privileges possessed by the ordinary citizen, especially the right of voting and of serving in the army, were of more, importance: and accordingly the public-law effects of infamy played a larger part in this period. In the Empire it is the private-law effects that are brought most prominently before us. Again, as during the Empire the populus had sunk into comparative unimportance, the censorian powers of the “cura morum,” so far as they were exercised by the emperors, were concerned, more particularly than in the Republic, in preserving the purity of the two higher orders, the senate and the equites. And lastly it is clear that the censorian infamia of the Republic, since it was concerned wholly with civic honours, could not affect women; yet we find in the Empire that infamia did attach to women, as to those taken in adultery (Dig. 23, 2, 43, 12). The omission of the mention of infamia as attaching to the woman who contracts an unlawful marriage (Dig. 3, 2, 1), while it attaches to the man, is explained by the fact that women were prevented by their sex from postulating for others at all (Dig. 3, 1, 5), and it was not necessary to mention them in the list of infames, which is, in this connexion, a list of those who could postulate only in certain cases for others.

(Mommsen, Römisches Staatsrecht, 2.1, p. 375 ff.; Savigny, System des römischen Rechts, 2.76 ff., translated under the title of “Jural Relations,” by W. H. Rattigan, pp. 125 ff.)


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