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p634 Infamia

An article on pp634‑636 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

INFAMIA. The provisions as to Infamia, as they appear in the legislation of Justinian, are contained in Dig. 3 tit. 2 De his qui notantur Infamia, and in Cod. 2 tit. 12 Ex quibus causis Infamia irrogatur. The Digest contains (s1) the cases of Infamia as enumerated in the Praetor's Edict. There are also various provisions on the subject in the Lex Julia Municipalis (B.C. 45), commonly called the Table of Heraclea.

Infamia was a consequence of condemnation in any Judicium Publicum, of ignominious (ignominiae causa) expulsion from the army (Tab. Heracl. 1.121), of a woman being detected in adultery, though she might not have been condemned in a Judicium Publicum, &c.; of condemnatio for Furtum, p635Rapina, 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 Rosc. Com. 6, pro Rosc. Amer. 38, 39, pro Caecina, 2, Top. c10; Tab. Heracl. 1.111), 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 contrario 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 sponsalia; 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 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 s1), 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 notabiles, 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 s1). 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 Infamis 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 (nec tribu moventur), 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 have been a removal from all the tribes, and a degradation to the state of an Aerarius (compare Liv. XLV.15).

The Lex Julia Municipalis 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 such 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.

p636 Cicero (pro Rosc. 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 (c15, cujus bona ex edicto possidentur, hujus omnis fama et existimatio cum bonis simul possidetur). This capitis minutio, however, as already observed, affected only the public rights of a citizen; whereas the capitis deminutio 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 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 Procurator. The Infamis could not sustain a Popularis Actio, for in such case he must be considered as a procurator of the state. The Infamis was also limited as to his capacity for marriage, an incapacity which originated in the Lex Julia (Ulp. Frag. XIII). This lex prohibited senators, and the children of senators, from contracting marriage with Libertini and Libertinae, and also with other disreputable persons enumerated in the lex: it also forbade all freedmen from marrying with certain disreputable women. The Jurists made the following 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 privileges 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).


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