BOOK II. capital punishment, carries with it also the loss of Roman honour. But, besides, any man's civic reputation can be merely diminished, so that he retains citizenship, though it is curtailed as to some rights: this abatement of reputation, which arises by virtue of a legal precept, is INFAMY. The legal conception of 'infamia 'rests essentially upon habit and custom, the recognition and operation of which were especially procured by the cena Nota censoria, sors by means of their official power," as well as by the other magistrates in the conduct of elections and the decision appertaining to that upon qualification to vote, censor's service. and in legal sentences; it attained full development in the Praetorian Edict." tribu morere,— limited in ope ration to the period of the And in the 1. Iulia muni cip. (§ 7). From 'infamia' must be distinguished the mere de facto abatement of honour, which consists in reproachable conduct or ill-repute of a person (turpitudo, ignominia, turpis persona). This is not a legal conception, and comes into question jurally alone when the judge or magistrate, in some decision or ordinance, has to take into account the moral character of such person. Callistr. Existimatio est dignitatis illaesae status legibus ac moribus comprobatus, qui ex delicto nostro auctoritate legum aut minuitur aut consumitur. § Minuitur existimatio, quotiens manente libertate circa statum dignitatis poena plectimur, sicuti cum relegatur quis . . vel cum in eam causam quis incidit, quae edicto perpetuo infamiae causa enumeratur. § Consumitur vero, quotiens magna capitis deminutio intervenit, veluti cum aqua et igni interdicitur.-D. 50, 13, 5, §§ 1-3.1 1 Reputation is the condition of unimpaired dignity, established by laws and customs, which, by virtue of the laws, is either lessened or destroyed by our fault. § Reputation is lessened whenever, while retaining our freedom, we suffer penal punishment in respect of the status appertaining to our dignity; as when a man is banished . . . or when any one lapses into that condition which, in the perpetual edict, is assigned as a cause of infamy. § But it is destroyed whenever great abatement of status occurs, as when a person is interdicted fire and water. Gell. xv. 13, § II: Item ex XII tabulis id est : Gai. Cum lege quis intestabilis iubetur esse, The ground of 'infamia' is always conduct dishonourable according to Roman sentiment. As regards parti cular cases of infamy, it sometimes appears as the im mediate result of certain notorious, dishonourable acts or BOOK II. Part I. conditions; at other times, as the effect of a judicial a Ulp. xiii. 1, 2. sentence (actiones famosae) or magisterial decree. Ulp. Probrum et opprobrium idem est; probra quaedam natura turpia sunt, quaedam civiliter et quasi more civitatis: ut puta furtum, adulterium natura turpe est; enimvero tutelae damnari, hoc non natura probrum est, sed more civitatis nec enim natura probrum est quod potest etiam in hominem idoneum incidere.— D. 50, 16, 42.3 Praetoris verba dicunt: INFAMIA NOTATVR 1 And so it is according to the Twelve Tables: 'He that shall allow himself to be summoned as a witness or shall be balanceholder, in default of his vouching as witness, shall be a marked man and incapable of acting as a witness. 2 When a man is by statute declared to be incapable of testation, that comprehends the non-reception of his testimony, and more than that, as some are of opinion that testimony neither should be given in his own favour. Some outrageous 3 Probrum and opprobrium are the same. acts are by Nature disgraceful, some according to the ius civile, and, as it were, by the custom of the State; e.g., theft and adultery are by Nature disgraceful, but to be condemned in the action of guardianship is not by Nature outrageous, but is according to the custom of the State; for indeed that is not by Nature outrageous which can even befall an upright man. BOOK II. (1) QVI AB EXERCITV IGNOMINIAE CAVSA AB IMPERATORE EOVE, CVI DE EA RE STATVENDI POTESTAS FVERIT, DIMISSVS ERIT; (2) QVI AR TIS LVDICRAE PRONVNTIANDIVE CAVSA IN SCAENAM PRODIERIT : QVI LENOCINIVM FECERIT; (3) QVI IN IVDICIO PVBLICO CALVMNIAE PRAE VARICATIONISVE CAVSA QVID FECISSE IVDICATVS ERIT; (4) QVI PACTVSVE ERIT; QVI PRO SOCIO, [FIDVCIAE,] TVTELAE, MANDATI, DEPOSITI SVO NOMINE NON NON IVSSV EIVS IN CVIVS POTESTATE ESSET, EIVSVE TEMPORE CONSTITVTAS HABVERIT.-D. 3, 2, I 1 The words of the Praetor run: 'He is marked with the brand of infamy (1) who shall be dismissed from the army because of disgrace, by the general, or by such person as shall have power to deal with such matter; (2) who shall take to the stage for pantomimes or declamation; who shall carry on the business of a procurer; (3) who in a public trial shall be condemned for having done something for the sake of chicanery and collusion; (4) who hath been or shall be condemned in his own name, or as having entered into an agreement upon the ground of theft, of robbery, offences against personal reputation, fraud and deceit; who in his own name, and not by the -QVEIVE LEGE PLAETORIA OB EAMVE REM, -Lex Iulia municip. c. 25.1 The effect of infamy was especially and essentially one of Public Law; the 'infamis' was divested of citizenship in its political significance, i.e., he lost the 'ius suffragii et honorum,' and indeed eligibility not only for offices of the State and commonwealth, but also for the senate and decurionatus. With respect to Private Law, infamy limited the right to the 'postulare.' Ulp. Postulare autem est, desiderium suum. vel amici sui in iure apud eum qui iurisdictioni praeest; exponere vel alterius desiderio contradicere. Hoc edicto continentur etiam omnes, qui edicto praetoris ut infames notantur; qui BOOK II. Part I. counter-claim, shall be condemned upon a contract of partnership [of pledge], of guardianship, of commission, of deposit; (5) he that shall marry a woman who was under his power after the death of his son-in-law, upon knowing of his death, within the period in which the custom is to mourn for the husband, and before her lamentation for the husband has taken place; or he who shall marry her while knowing that it is not by the direction of him under whose power she is; and he that shall suffer such person as he had under power to marry a woman included in the above provision; [or the woman that, while not under the power of her parent, and her husband being dead, when she knew that he was dead, shall marry within that period in which the custom is to mourn for the husband]; (6) or he that in his own name, not by the direction of the person in whose power he was, or in the name of him or her whom he had in power, has contracted two betrothals or two marriages at the same time. 1 'Or he that has been or shall be condemned by the 1. Prae toria, or because he has done or shall do what is contrary to that. lex. . . or whosesoever goods are or shall be possessed or prescribed according to the Edict. U BOOK II. "§ 45. omnes nisi pro se et certis personis ne postulent. —D. 3, 1, 1. 1, §§ 2, 8.1 Paul. i. 2, 1: Omnes infames, qui postulare prohibentur, cognitores fieri non possunt, etiam volentibus adversariis. Infamy operated also as a relative obstacle to marriage; but in the Justinianean Law it lost for the For the appli- most part all practical application. cation given by the Modern Law to the Roman doc trines as to the capacity for lights of natural Persons, see Arndts, Lehrbuch der l'andekten,' § 32. C CHAPTER II. CAPACITY TO ACT. $58. IN GENERAL. Supra, § 32. CAPACITY to act, in contrast with capacity for rights, is that capacity recognised by Law of a person to undertake acts with juristic effect; and so, himself to declare the legal will that belongs to him as a Person. The general prerequisite of capacity to act is the natural faculty of will of the person (natural capacity to act); but juristic capacity to act requires besides as special element a comprehension, inherent in the person, of the meaning and purpose of the legal act to be undertaken. According as the one or the other is wanting, we speak of full or of limited capacity to act. both cases the person needs a representative who In 1 Now postulare is, for a man to make his claim or that of his client, or to gainsay the claim of the other party, before the court and in the presence of him who administers the Law.In this edict all persons, besides, are included who are branded as infames by the Praetorian Edict; none of whom shall make any claim save for themselves and certain persons. 2 All persons under infamy, who are forbidden to make claims, are unable to become representatives, even if the opponent consent. |