INFA´MIA
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.)
[
A.H.G]
