.■-Wi4r.>v.\\M6«i.y'Mt?.v tin !i!! en", Qfnrnsll Siaui &rl(Dnl Eibrarg '"l^miajits place in Roman public and pr 3 1924 021 131 531 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 924021 1 31 531 INFAMIA ITS PLACE IN EOMAN PUBLIC AND PRIVATE LAW GEEENIDGE Bovibon HENRY FROWDE Oxford University Press Warehouss Amen Corner, E.C. gtew ©etft MACMILLAN & CO., 66, FIFTH AVENUE INFAMIA ITS PLACE m ROMAN PUBLIC AND PRIVATE LAW A. H. J. GEEENIDGE, M.A. HEETFOKD COLLEGE Oxfotr5 AT THE CLARENDON PRESS LONDON: HENRY FEOWDE OXrOED UKIVEESITT PEESS 'WAEEHOUSE, AMEN COEHES AND STEVENS & SONS, LIMITED 119 & 120 Chanceet Lane 1894 OxfetS PRINTED AT THE CLARENDON PRESS BY HORACE HART, PRINTER TO THE UNIVERSITY 07^ PREFACE Some few enquirers, gifted with sufficient imagination, may perhaps be able to realise, almost at the outset, the nature of any particular task which they are undertaking. This has not been my fortune in wiiting the history of the Infamia. Starting under the impression that, in following up the traces of this singular institution, I was dealing with a somewhat narrow juristic question, I soon found myself confronted by a subject, the juristic aspect of which was quite secondary to its moral and social significance. In its ethical aspect, Infamia is in touch with almost every department of Koman life ; in its juristic aspect it is difficult to say what department of Roman law — public, criminal, and private — it did not to some extent control. A subject which has so many branches is liable to partial treatment. Infamia has been no exception to this rule. One department of it, generally known as the censorian infamia, has often been treated by writers on constitutional law. Another department — the Infamia known to us from the legal books of Justinian — has been the almost exclusive property of writers on private law ; and unfortunately, through a series of accidents which will be fully traced in the course of this work, this second branch of the subject has come to usurp the exclusive title of Infamia. VUl PREFACE But the first duty of a historian is to restore to their due proportions the different parts of a subject or the various epochs of a period. From a historical stand-point Infamia must be studied as a whole. This is the reason why I have ventured to go over such well-worn ground as the history of the censorship in the Eepublic and even to trace the feeble survivals of this institution which are met with in the Empire, before investigating the codified institution of imperial times, which has hitherto generally borne the exclusive title of Infamia, but which is in reality only the palest reflection of that ' rule of manners,' which supported the dignitas of the free state, and gave it strength to win what the new Monarchy and the later Empire found it so difficult to retain. A. H. J. G. Hertford Colleoe, Oxford, April, 1894. CONTENTS \_The references are to the pages.'] Chapter I. PAGES On the meaning op ' existimatio ' . . . 1-17 Ideas expressed by existimatio and digniias 'when used in a juristic sense ; absence of strictly technical terminology, i. Limitations of the conception ; comparison of existimatio with mput, 4. Loss of existimatio implies disabilities in public and in private law, 8. Disabilities in public law considered in connection with Jionores, with the suffragium and with ordines, ib. Eolation of infamia to other forms of disqualification, 12. The civil-law aspects of infamia, 13. Summary of the modes in which existimatio might be affected and infamia brought about, 14. Outline of the plan to be followed in discussing infamia, 17. Chaptee II. On the meaning of 'infamia' .... 18-40 Probable meaning of infamia when used in its widest juristic sense, 18. Criticism of Savignys theory that infamia was distinct from other forms of disqualification based on moral grounds, ai. Infamia in connection with actions and delicts, 24 ; as a con- sequence of criminal condemnation, 28. Infamia as involving the loss of all active political rights, 33. Result — there were many kinds of infamia ; summary of the modes in which they might be brought about, 35. Definition of infamia, 37. Its characteristics ; the result of a personal act, 38 ; mediate and immediate infamia, ib. Conditions necessary to constitute mediate infamia, 39. X CONTENTS Chapter III. PAQES The censorian infamia and its developments . 41-112 § I. General characteristics of the censorian in- famia . 41-74 The censorian infamia springs &om the censor's duties of registration, 41. Characteristics of the evidence for the cen- sorian infamia, 43. Attributes of the censorship which directed its procedure, 46. How far was this procedure a Judicium? 51. Permanent and tralaticiary character of some of the censor's rulings, 56 ; secured by the censor's Edict, 57. Grounds of the censorian infamia, 60. § 2. The censorian mfamia in its cormection with the Senate 74-87 The lectio Senaius in the earlier and the later period of the Eepublic ; exclusion comes to be based solely on infamia, 74, Procedure in the Eepublic, 78 ; in the Principate, 82. Expulsion by the Senate of its own members, 84. Changes introduced by the later Empire : the Senate and the claris^mi : new modes of selection and exclusion, 85. § 3. The censorian infamia in its cormection with the 'Equites' 88-104 Meaning of equites in the Eepublic and in the Principate, 88. The recognitio eguitum, 93. Modes of reTision employed in the Principate, 97. The equites and the order of perfectissimi in the later Empire, 100. Differences between the application of infamia in the Eepublic, the Principate, and the Empire, 102. Gradual merging of the censorian in the codified praetorian infamia, 102. Importance of Infamia as illustrating the different types of nobility of the Eepublic, Principate, and Empire, 104. § 4. Effects of the censorian infamia . . 105-112 Disqualifications for public duties of different kinds, 105. Meaning of 'removal from the tribe' and 'relegation to the aerarii,' 106. Question whether this extreme disqualification affected other public rights, no. Importance of this extreme disqualification when made permanent, in. CONTENTS XI Chapter IV. PAOES The praetoeian infamia and its developments . 1 13-143 Probable relation of the praetorian to the cenaorian infamia, 113. The edict de posMando from which thia infamia aroae, ii8. The grounds of the praetorian infamia as gathered from the Edict and from the lex Julia Municipalis, 121, Chapter V. Later history op the infamia .... 144-153 Prevalence of the codified infamia of the Edict : it becomes the infamia of the Empire, 144. Its employment by the emperors, chiefly after Constantino, to check abuses, either (i) Judicial, 143 ; or (ii) administrative, 149. Its employment against heretics in the Christian Empire, 152. Chapter VI. Effects of the developed conception of infamia 154-170 Primary effects ; exclusion from hcmores, the Senate, and dignitates in general, 154 ; from the judicial bench, 155 ; from the army, 157. Secondary or civil law effects ; limitation of the right of representation in courts of law and its consequences, 158. Special limitations in civil rights, 161 ; incapacity to give •evidence, meaning of intestabilis, 165. Special disability affecting freedmen, 170. Chapter VII. Infamia in its application to women . . . 170-176 Women exempt from the censorian infamia, 170; question how they became subject to the praetorian infamia ; probable mention of the mulieres famosae in the edidum cognUorium of the praetor, 172. Causes of the infamia attaching to women, 173. Its effects, genei-al and special, 174. Chapter VIII. Modes of extinguishing infamia .... 177-185 Remission of the censorian infamia, 177. Possible remission of the praetorian infamia. Extinction of mediate infamia by resUMio in integrum, 179. Extinction of infamia by Emperor through abolitio infamiae, 18 r. Power of judge to avert infamia, i8a. Forms of temporary disqualification in the principate, 184. Xll CONTENTS Chaptee IX. PAGES MoDiriED FORMS OF DISQUALIFICATION BASED ON CHAEACTEE AND STANDING 1 86-1 99 § I. Disqualifications based on character . . 186-192 Conception of turpitudo as a ground of disqualification in public law, 186 ; as a ground for disabilities in private law, 189. § 2. Disqualifications hosed on stcmdmg . . 193-199 Conception of vilitas as a ground of disquaUficatiou in public law, 193 ; as a ground for disabilities in private law, 198 ; its application to women, ib. APPENDIX. Note I. — On the rules of mourning at Eome and the form which they assume in the praetor's Edict ........ 200 Note II. — On the bankruptcy clause in the Lex Julia MuMicipalis ...... 206 Note III. — On the law of treason promulgated in the reigns of Arcadius and Honorius, and the infamia created by this law . . . . 209 INDEX 215 ERRATUM. Page 169, line 20. Omit the words ' From an interpretation' to 'receiving under a testament,' and the reference in note 3. Greeruchif : tiijintiiu INFAMIA CHAPTEE I. ON THE MEANING OF ' EXISTIMATIO. ' The object of the present treatise is an attempt to investigate the history of a conception of Roman Law, which, for want of a better English equivalent, may be termed that of ' civil honour.' The difficulty of nomen- clature, however, is unfortunately not confined to the search of English equivalents for conceptions alien to English law. Such a difficulty might conceivably be met by the employment of a new terminology, or might more easily be dispensed with by the use of the technical Roman terms themselves, without any attempt at translation. The difficulty lies deeper than this, and arises from the fact that, though the conception of civil honour was brought home to the Romans by some of their most important political institutions, and underlay many — if not most — of the events of the citizen's daily life, yet there is a striking absence of any strictly technical terminology to express the condition itself, or, what is more important, the mode in which this condition might be destroyed. In the forensic speeches of a Republican lawyer, in the responsa of Roman emperors, B INPAMIA. [Chap. and in the writings of the classical jurists, we meet only the vague expressions, never accurately defined, which were current in the ordinary Latin language and literature. The two terms by which the conception was most usually expressed were those of existimatio and dignitas. Both of these convey the notion of the outward respect in which a man is held, which is based upon his deserts and measured by his position in society. As a rule, the only authority which can thus take the measure of a man and assign him his fit and proper place is society itself, and the conception is merely one of ' positive morality.' When, however, the State steps in, not in a penal capacity, but simply with the desire of regulating the position of the individual with reference to what it conceives to be State-functions, whether in public or in private laWj in accordance with what it believes to be that individual's deserts, then the conception becomes juristic, and social respect develops into civil honoui-. Although this is, perhaps, the nearest approach that can be made to a general description of what the Koman jurist meant by dignitas or existimatio, yet it would be misleading to suppose that, by the ' regulation ' of the individual's position by the State, it is meant that the State actually ' assigned ' that position. On the contrary, the point of view of the Eoman law is that that position is one already existing, that the State interferes to diminish it (minuere), sometimes in exceptional cases to restore it (restituere), but never, so far as the conception is a universal one, applicable to all Roman citizens without distinction of rank, does it interfere to increase it. Leaving out of sight all the distinctions of privileged and unprivileged classes in Rome, of dominus and servus, ingenuus and libertinus, patronus and cliens, with which we have here no concern, and fixing our attention on the civis romanus, we shall find that civil honour at Rome is known to us I.] ON THE MEANING OF ' EXISTIMATIO.' 3 entirely under its negative aspect. This at once accounts for the absence, noticed above, of a positive definition of the conception ; a procedure which is purely negative can hardly give rise to a positive terminology: and further that terminology can be neither definite nor accurate when that procedure is concerned with diminishing the varying degrees of existimatio belonging to different classes of individuals and with reference to very distinct needs of the State. The complexity will be greatly increased if we find that the procedure itself was not simple. In this particular case we shall find that it was extremely complex. The authorities who wielded at Rome the power of lessening the civil honour of the individual were many in number, and they exercised this power for very different purposes. These considerations render it no matter for surprise that this subject is the most unsettled in the whole province of Roman law, and one on which, with reference to certain points, any historian, on the evidence which we at present possess, must be content with merely probable conclusions ^. The historian is fortunate who is able to show that these points are of comparatively minor importance : and that a juristic conception which appears before us in the laws of the Twelve Tables, grew with the growth of the Republic, assumed a somewhat different but hardly less important form under the Roman Empire, and gathered fresh strength with the new disabilities which necessarily accompanied the recognition of Christianity as the State-religion, can be restored in something of its old continuity. What appears to be the most signal proof of incompleteness of know- ledge — but one that is by no means so serious as it looks — is that modem historians are not agreed as to what was the ' As two of the most important links in the chain of evidence are epigi'aphic — the Lex Julia Municipalis and the Lex Acilia Bepetundarum — there is yet hope that this evidence may be added to. B a 4 INFAMIA. [Ohap. general name given by the Romans to this derogation of dignitas, or whether it had such a general name at all. It wiU be provisionally spoken of here as the Roman infamia ; although the right to use this word in this extended sense is one that will have to be proved during the course of the work ^- It will now be necessary to point out, with such degree of accuracy as is attainable, the limits of the present subject — a task especially necessary in this case, since the treatment of infamia here will be somewhat wider than that which has been allotted to it by most writers on the subject. It has been observed above that the Roman State and the Roman jurist always looked on existimatio as a condition of which the citizen was already in enjoyment. ' Jw/amid and its variants : — Infamia ; Liv. xxvii. ii {otihecmsoriarmtatto), ' erant peipauci, quos ea infamia adtingeret : ' cf. Cic. pro Rose. Amer. 39, 113 ; pro Quinctio, 14, 46. In the legal books infamia is the usual term, with such variants as 'infamiae detrimentum ' (Cod. ii. 11 (12) i), 'damnum infamiae' (ib. 5), 'famae damnum' (ib. 8), 'infamiae macula' (ib. 20), ' detrimentum famae ' (Cod. i. 40, 8). Ignominia : Cic. pro Quinctio, 15, 49, and often ; probrum : ib. 2, 9, and often ; these two words are generally applied to the censoria notatio. The expression used for the pronouncement of infamia is in the Edict (Dig. iii. 2) ' infamia notare ; ' this is the most usual expression. Notare is often used alone, and generally of persons; but we also find 'factimi notare' (Dig. ii. 3, 13). But the modes of expressing the fact of infamia are very numerous, especially in the imperial rescripts. Amongst them may be cited 'in- famiam irrogare ' (Just. Inst. iv. 18, 2), ' ignominia irrogari ' (Dig. ii. 3, 20), ' damnare ignominia ' (Tertull. de Spect. 22), ' ignominia notare ' (Cod. ii. 11 (12), 15) : ' ignominiae maculam inrogare ' (ib. 13), ' labem pudoris contrahere' (Cod. ii. 11 (12), 15): ' existimationis macula' (ib. 17), ' existimationem laedere' (Dig. ii. 8, 2), 'jaotura existimationis' (Cod. x. 32 (81), 31) ; 'opinionis imminutio' (Cod. ii. 6, 6). Besides the usual infames of persons (or more rarely the fuller 'infames personae,' Cod. X. 59 (57)\ we find 'famosus,' 'inter infames haberi' (Cod. ii. 11 (12) passim) : ' famosum facere ' (Dig. ii. 3), ' quos infamia ab honestorum coetu segregat' (Cod. xii. 1, 2), 'notabilis esse' (Cod. ix. 8, 5). In Gelliua (xiv. 7, 8) we find the expression ' facere existimatos ' : and in Capitolinus (Vit. M. Anton. 12) we find 'famae detestandae' used of the infamia incurred by a man who had fought as a gladiator. I.] ON THE MEANING OF ' EXISTIMATIO.' 5 Existimatio is, in fact, defined for us as dignitatis illaesae status ^. It was so far a conception similar to that which the old Eoman law knew as caput, and which the later jurists generally described as status. The limits of the present subject may best be defined by showing the relations which these two conceptions, existimatio and caput, bore to one another. It is clear, on examination, that the conceptions differ from one another in two respects. Caput denotes the whole condition of the Eoman citizen as the subject of all kinds of personal rights, and is therefore necessarily a much wider and more comprehensive term than existi- inatio. They differ further in the respect that existi'matio possesses a connotation which is on the whole wider than that of caput. It conveys the notion of moral censure as well as that of legal punishment : it is the status legibus ac moribus comprobatus ^, whereas caput might be described as a status legibths coimprobatus alone ^. If we accept the ordinary Roman subdivisions of caput and assume that it ' Callistratus in Dig. 1. 13 (de extraord. cogn.) 5, §§ 1-3. 2 Callistratus (1. c.) ' existimatio est dignitatis illaesae status, legibus ac moribus comprobatus, qui ex delicto auctoritate legum aut minuitur aut consumitur. Minuitur existimatio, quotiens, manente libertate, circa statum dignitatis poena plectimur — vel cum in eam causam quis incidit, quae edicto perpetuo, infamiae causa, enumerantur. Consumitur vero, qiiotiens magna capitis deminutio intervenit, id est, cvun libertas adimitur.' The use of the positive conception existimatio and its equivalents in a juristic sense may be illustrated from Cic. pro Quinct. 15, 49 ('fama et existimatio '), cf. 16, 51 ; 23, 73 ; 31, 98 and 99. In the same speech we find (81, 79) 'Integra sua fama' and (15, 49) 'existimatio est Integra' ; in pro Eosc. Com. (5, 15) 'bona existimatio'; ib. 6, 16 ' summae existimationis.' 'Integra fama' is found in Dig. xxvi. 10, 4, 2. Cf. Cod. x. 11 ('integram existimationem illibatamque conservat ') and ib. § 21 (' inviolatam existimationem obtinent'). For variants see Cic. pro Rose. Amer. 39, 1 14 : ' honestas ' and Cod. x. 59 (57) ' Integra dignitas.' ' This is true even in the rare cases where capitis deminutio ensues from a lapse of duty to the State : as in the case of the person who does not appear to be registered at the census (the iruiensus) Cic. pro Caec. 34, 99), or who attempts to evade military service (Ulp. Beg. xi. 11). These are both strictly penal measures. 6 INFAMIA. [Chap. consists in freedom (libertas), in citizenship (civitas), and in membership of a familia, it is clear that the eodstimatio of an individual may be aflFected without his being involved in either of the three kinds of capitis deminutio. For purposes of illustration we may anticipate for a moment facts which will be treated of in detail later on, and take the instance of the Roman censor who, on moral grounds, suspends for a time the individual citizen's right of voting {jus suffragii). Yet all the other rights implied in civitas still remain intact, and the citizen has not suffered the vnedia capitis deminutio. And, even if we take what seems the most extreme disqualification in civil law, the rendering of an individual intestabilis (a word the history of which will be traced further on), whether this means incapable of being a witness, or incapable of having a witness, to a testament, or both*, this disqualification destroys an important right connected with the familia, but does not produce the m,inima capitis dem/inutio or loss of farailia itself. These partial derogations of the citizen's rights never do, in fact, involve a real capitis deminutio, and hence the consideration of the modes in which caput may be destroyed or restored lies entirely outside the scope of this work. The distinction between a change in dignitas and status is in fact drawn for us in the legal writings of Justinian^; a change in the former produces no capitis deminutio: and although we often find in Latin authors disqualifications of difierent degrees and for different purposes spoken of as a loss of caput, yet this terminology was due to a more or less superficial analogy, natural enough in non-juristic writers, to whom • Gaius in Dig. xxviii. 1, 26. ' Inst. i. 16, § 5, 'Quibus autem dignitas magis quam status per- mutatur oapite non minuuntur : et ideo senatu motum capite non minui constat.' I.] ON THE MEANING OP ' EXISTIMATIO,' 7 the conception of caput was as vague as the term itself ^ Sometimes indeed the analogy was very close. When the censor took from the citizen the right of voting, it did seem as if civitas and libertas were snatched away % for all the active manifestations of political life were now withheld. Still more was this the case if each succeeding censor did, as is probable, accept in certain cases the ruling of his predecessors, and rigorously exclude from all active political rights men disgraced by certain professions such as that of an actor ^- This permanent disqualification seemed to entail a modified capitis deminutio * : and hence we are not surprised to find that this terminology crept into a province to which it was, strictly speaking, inapplicable. Here, therefore, is one limitation on our discussion of the subject which is not only justifiable but necessary. With the consideration of caput or status, with the conditions on which it depends, and the circumstances by which it may ' For instances of this usage see Liv. xlv. 15 ; Cic. pro Quinct. 9, 32 : 13, 44, 45 ; pro Eosc. Com. 6 ; TertuU. de Speet. 22. These passages will be examined in detail later on. ^ Liv. 1. c. ' civitatem libertatemque eripere.' ' Tertull. 1. u. ' scenicos manifeste damnant ignominia et capitis deminu- tione.' ' Still more was this the case when the disqualification was hereditary, as it was in the exceptional instance of Sulla's proscription list. Here the disqualification in some respects resembled the Greek drifua. The dis- abilities imposed by Sulla on the children of the pi-oscribed, and to which a retrospective legal sanction was granted by the Lex Valeria (Plut. Sulla, 32 ; Cic. de Leg. Agr. iii. 2, 7), and which were perhaps further confirmed by a law of the dictator himself, were illogical and arbitrary. The pretext for them was that those so disfranchised were the children of hostes (Cic. pro Kosc. Amer. 43, 126). As such they should have suffered complete capitis deminutio. But we know that they were disfranchised only for certain purposes. The general effect was to debar them from all chances of a public career (' a republica summoveri' Cic. ap. Quinct. ii. 1, 85). But this was not strictly a capitis deminutio. This exceptional legislation does not belong to the general history of civil honour at Eome, for many reasons, and above all because, as we shall see, the Koman infamia was not hereditary. 8 INPAMIA. [Chap. be lost, we have nothing to do. Other limitations, which it is necessary to mention, may best be seen, if we proceed to sketch rapidly the main course which this discussion will take, and the chief questions which, during the course of it, will have to be answered. The history of the Roman Infamia is a history of special disqualifications, based on moral grounds, from certain public or quasi-public functions : by the latter are meant those functions, such as postulation in the praetor's court, which, though based primarily on the rights of the indi- vidual in private law, yet necessarily bring him into contact with an official of the State. The easiest manner of classifying these disqualifications will, therefore, be to divide them into two main categories of (i) those dis- qualifications which have reference primarily to public rights {jura pvMica) and (ii) those which have reference primarily to the procedure necessary for the exercise of private rights {jura privata) ^ ; although it may be boldly said, in the latter case, that the disqualification ultimately has reference to private rights themselves, since any limitation on procedure is inconceivable without some limitation of the rights which are reached by such procedure. The disabilities which were connected with the public law of Rome will necessarily be considered fii-st. What- ever may be our theory as to the origin of the term infamia in Roman law, there can be no doubt that the disabilities ' The word ' primarily' is particularly necessary as regards the second category, since at Kome a limitation in procedure in the matter of private law might affect a man's capacity to act on behalf of the State. E. g. the limitation on the right of postulation imposed on the in/amis in the praetor's edict prevented a, man so declared in/amis from sustaining Si popularis actio — one in which a money penalty was exacted on behalf of the State ; since in such a case he appeared as a cognitor or promrator of the State. I.] ON THE MEANING OE ' EXISTIMATIO.' 9 which it implies were concerned primarily with the exercise of public rights by Roman citizens. By the side of these mere questions of procedure in civil law, even considered as affecting the majesty of such a magistrate as the Roman praetor, sink into comparative insignificance. But, not only, as will be shown, is the conception of existimatio and its violation, infamia, prior in respect to public to that which we meet with in respect to private law ; it is also a far more striking conception in the former case than in the latter. Equality in private law is an idea which arouses little in- terest or wonder : but nowhere, save in a state like Rome, which on the whole recognized perfect equality amongst the citizens in matters of public honour and public duty, could the conception oi existimatio — of a moral standard to which all citizens alike should conform — be fairly exhibited. So far as the disabilities implied in infamia affected public rights, they may again be conveniently subdivided into two classes ; (i) those affecting the honores of the State, by which, as will be seen, are meant strictly the magistracies of the State, and (ii) those affecting the jura puhlica of all citizens other than magistrates — the most important of these ^ttra which the State cared to control being the right of voting, and the right (for it was a right as well as a duty) of serving in the Roman legions. This is a simple and in the abstract perhaps an exhaustive classification of what were meant by ' public rights ' — they are generally summed up briefly as the jus honorum and the Jus suffragii. In practice however they formed, as we should expect, but a portion of the functions of State which might be exercised by the individual citizen. By the side of them we find a class of offices, which were never regarded as honores, and can as little be looked on as jura puhlica, since they could not be claimed of right by any and every Roman citizen. They were offices other than the regular lO INFAMIA. [Chap. magistracies, for which certain special qualifications were necessary. One of these was the position of a senator, and the special qualification for this during a great portion of the Eepublic and during the Empire was the previous holding of a specified magistracy. With this special qualification we have here no concern; but what does concern us is this : that, in consequence of this special qualification, and of the importance of the duties of a senator to which it led, developed the notion of a dignitas peculiar to that position. Not only society but the State demanded a standard of conduct conformable to that rank : and here for the first time we are introduced, not to exis- timatio as a simple and universal conception, attaching to honores in general or to jura publica in general, but attaching to a class or ordo, which is presumed to have a life-long tenure of its position, and to which necessarily but few of the citizens can belong. Amongst classes the senatorius ordo claims the first place with the historian as it claimed the first place with the censors in their revisions : and we need but give a passing notice, and only with reference to our subject, to that strange anomaly of the Eoman constitution — the existence of a body, hardly recognized by constitutional law at all (if indeed we can speak of constitutional law in connection with a govern- ment such as that of Eome), but which was long obeyed as the de facto sovereign of the State, and which the State accordingly took excessive care to preserve from every stain which might weaken the influence and the power not secured to it by statute-law. To the senate ecdstimatio was everything, and that this truth was fully recognized by the State will be clearly shown when we come to treat of the exercise of the censorian power in relation to that body. Amongst ordines more distinctly recognized by public law were the equites, who, whether regarded as I.] ON THE MEANING OP ' EXISTIMATIO.' II a military body or as a civU order, required special mone- tary qualifications, and others which varied from time to time as the condition for admission to their ranks. Here, again, the only point that we need dwell on is that the con- ception of a dignitas and an existimatio was established, applicable to that order and differing (sometimes, it is true, according to the caprice of the magistrate whose duty it was to regulate the citizen's position) from that of the magistracy, the senate and the voting populace. More artificial — because less stable — was the ordo of the Ju- dices. A special existimatio attached to these as well. Only as the album judicuvi was often created afresh by leges judiciariae, the conception of this existimatio could be — and apparently was — embodied in law. At least one of the earliest notices we possess of the legal recog- nition of infamia is contained in the Lex Acilia Repetun- darum, of laa B.C., the clauses of which containing the qualifications for the jurors, who were to be employed on that special quaestio, were undoubtedly copied from the Lex Judiciaria of C, Gracchus. However the moral qualifications of the diflferent classes in the State were determined in each particular case, the main fact about existim^atio is now clear. It difi'ered according to the needs of the community. And, simple and obvious as the fact may seem, it is yet the one which it is most important to bear- in mind when we are studying the Roman infam^ia. Infamia could not have been a uniform procedure if eoeistiviatio was not a uniform conception. Before leaving the subject of qualifications for State- functions, another and very necessary limitation of the subject may now be pointed out: and that is, that we cannot consider here the qualifications for magistracies (honores) or other offices of State any more than we can consider the qualifications for citizenship generally. la INFAMIA. [Chap. Although the Eoman State might ordain that a man must be of a certain age before he can hold office at all, that he must exercise some functions before exercising others, or even that he must not be disqualified physically for office, yet none of these conditions touch the question of existi- matio. There was, however, one condition requisite for holding office at Rome which does present a difficulty to us, because it seems to lie on the borderland between the ordinary qualifications and that of dignitas or existi'matio with which we are here concerned. It was certainly a rule at Rome that any one who exercised a trade or pro- fession for payment should not be eligible for the magis- tracy: and a historic instance of the application of this rule is furnished by the case of a certain Cn. Flavins, a scriba of the aediles, whom the magistrate presiding over the election for the curule aedileship refused to receive as a candidate for that post until he had formally abandoned his profession^. There can be no doubt that this principle was based on the consideration that it was beneath the dignity of a Roman magistrate to be engaged in such an occupation : and was the outcome of a conception some- what similar to the Greek idea of ^avavaia, which in this case, as in some Greek Republics ^, found open legal expres- sion. It, therefore, is, to some extent, connected with our subject : although the disquaKfication was here not based on moral grounds, and the man so disquahfied would certainly not have been described as infamis. A more difficult question will meet us later on in the case of certain pro- fessions which disqualified for municipal offices, and which were evidently considered disgraceful^. The individuals • Mommsen, Staatsrecht, i. p. 497. Gell. vii. (vi.) 9. Liv. ix. 46. ' Arist. Pol. iii. 5, 7, p. 1278 a. ' Those namely mentioned in the Lex Julia Municipalis, 1. 104. For this form of disqualification, see ch. ix. § 2. I.J ON THE MEANING OF ' EXISTIMATIO.' 13 holding these also would hardly have been described aa infamea: although we cannot argue from our modern notions to the singular prejudices which even the most democratic portions of the ancient world entertained to- wards certain modes of life. The other disqualifications with which we are concerned were all based on a moral stigma, and all affected existimatio through infamia. When we turn from the public law efiects of this censure to its application in the procedure of the civil law we leave all such grades behind us. The juristic formula, omnes homines aequales sunt, although extended almost as widely from the original sphere to which it applied by the Roman jurists themselves as it has been by modern thinkers, was yet in its narrowest sense strictly applicable to the jus privatum of Rome. This equality necessarily embraced procedure — which, in the special case we shall have to consider, was the capacity for postulation in the praetor's court. And the equality could only be disturbed by some special disability, which might be that of age or sex, of physical or moral incapacity. Amongst the kinds of moral unfitness which produced disability in this given case, that known as the infam,ia holds the first place. The natm-e of the subject which we have to treat in detail is now tolerably clear. It is the subject of the special disqualifications based on an injury to reputation (laesa existim,atio). The questions to which it gives rise are partly moral, partly juristic: since the institution itself depended on the theory that a moral taint involved a civic disability. It was this civic disability, conceived consciously as based on a moral imperfection, that was generally spoken of by the Romans as infamia. Before proceeding to the proof of this point, which is, after all, not of very great importance (for it is little more than the justification of a nomenclature), it will be con- 14 INPAMIA. [Chap. venient to close this introduetory chapter by giving a sketch of the main points which will be touched on in the discus- sion, more especially as many — ^if not most — of these points have been the subject of long-sustained controversy, and it is important to set the precise issues clearly before us. Next to the conception itself, the main point which we shall have to consider is the nature of the machinery by which the civic disqualification based on it was secured. It will be found that there were three modes by which it could be brought about. (i) By the performance of their duties by the magistrates who had the right of admitting citizens to honores, to the ordines, and to the exercise of the publica jura generally. These magistrates were, to some extent, the consuls or other magistrates who presided at elections to office, but more particularly the censor. The working of this kind of disqualification is known to us entirely from facts recorded by historians, and not from public documents. A question that must necessarily be answered in this connection is, how far the caprice (arbitrium) of these magistrates was limited by recognized rules of procedure or by legal prescriptions. (ii) By the performance of his functions by a magistrate who had the control of procedure in the civil courts, that is, the praetor. The mode in which this disqualification was brought about is known to us from legal documents ; namely, from the portions of the praetor's edicts dealing with this subject which have been preserved for us (no doubt incompletely) in the Digest, from the amplifications of the commentators, and from further interpretations in the Codex. (iii) By legislation. The laws dealing with this subject are known to us from official documents which have been preserved in inscriptions, from the legal books of Justi- nian, and to some extent also from scattered notices preserved in other writers. Such laws were statutes I.] ON THE MEANING OF ' EXISTIMATIO.' 1 5 embodying principles of constitutional law^, certain statutes of the criminal law (the leges judiciorv/m publi- coruTn), perhaps certain civil laws themselves, and decrees of the Roman Emperors. In one particular case we find a civic disability imposed by the only great charter that Rome possessed, the laws of the Twelve Tables. It is at once clear that the first two classes mentioned above bear a much greater resemblance to one another than either of them bears to the third class. What may be, for purposes of convenience, termed the censorian and the praetorian infamia, are both exercises of the auctoritas of a magistrate. It is the resemblance and the difference between the modes of exercise of these two kinds of authority that have given rise to most of the controverted points with which we shall have to deal. The disputed questions are concerned both with the causes and with the effects of these two kinds of disqualification. If we ask, ' Did the grounds of the censorian and the praetorian ^ infamia coincide?' our answer will be, on the whole, in the affirmative ; the chief diflTerence that we shall observe being that the grounds in the latter case were necessarily of a somewhat narrower compass than in the former. If we ask further ' Did the consequences of the two kinds of infamia coincide ? ' we shall certainly find that the effects in either case were different, each procedure being regulated strictly with reference to its own object. But we shall also find that the attempt which has been made to distinguish infam,ia as a permanent disqualification from political rights, from the censoria notatio as a temporary disqualification, is a failure, in the extreme form in which this theory has been stated by many eminent authorities. It is untenable, that is, for the period of the Republic, where alone it can be properly tested, for it was only then ' As the Lex J'olia Municipcdis and to a less extent tlie Tabidae Bantinae. 1 6 INFAMIA. [Chap. that the censoria notatio was in full working and was in the nature of a living and progressive political insti- tution ; although it will not be denied that, at some period during the Empire, as a consequence mainly of the decline of active political life and definite political progress, infamia did become a fixed and rigorous conception and did disqualify permanently from certain political functions. The third class of disqualifications mentioned above ought to be of a comparatively simple character. The mandate of the law ought, we might think, to be of a more uniform character than the arbitrium of the magistrate. Here again we shall find that on the whole the grounds of the infamia created by statute tend to coincide, only difiering, as we should expect they must differ, from the scope of the particular laws. The narrowness or the fulness of the grounds embraced depended naturally on the object which each law had in view: and therefore we must conclude, that, in the case of laws, as in the case of magistrates, it is impossible to expect uniformity in the effects they ordained. But, although the law might ordain that certain effects should follow certain causes, at Rome, where during the Eepublic the machinery necessary for enforcing a law was notoriously inadequate, and the dis- cretionary power of the magistrate extremely great, a question noticed above necessarily suggests itself in this connection, namely, how far the magistrate in power — the consul presiding at the elections or the censor making out the list of the Senate — felt himself absolutely bound by such legal prescriptions. There were no doubt many modes of ignoring them, and hardly a single definite regulation for bringing the facts before the notice of the magistrate. In the case of the censorian power especially we shall therefore find that it is hardly possible to give a simple answer to this question. I.] ON THE MEANING OF ' EXISTIMATIO.' 17 In the course of this discussion it is proposed to treat the modes by which infamia could be brought about, and its consequences when effected in the following order. First, the censorian procedure of the Republic, which is, on the whole, the oldest and certainly the most important; and in close connection with this procedure, the developments which it subsequently attained, as applied mainly to the construction of the higher orders of the State, in the Principate and in the later Empire. Secondly, we shall concern ourselves with the praetorian infamia: and in this (the most difficult portion of the subject) the following questions will arise for settlement : (i) the rules of postulation in the praetor's court and the structure of the three edicts referring to postulation ; (3) the grounds of the disqualifications resulting from these rules : and in connection with these grounds we shall have to consider the various attempts which have been made to recon- struct the edict dealing with the infames, which has come down to us in a fragmentary and disjointed state ; (3) the consequences, mainly in civil law following on this restriction of postulation. We then reach the developed conception of infamia, as it is known to us in the legal books of Justinian. This, and the modified forms in which existimatio could still be affected in the later Empire, and which fell short of the developed conception of infam,ia, form the conclusion of the history of Civil Honour, so far as its chief possessors, men, were concerned. A further subject which will demand treatment — and one which, because on account of its anomalous character, it could not be classified with the others, has not been noticed in this introductory chapter — is the conception of infamia as attaching to women. We shall have to consider this exceptional stigma in its probable connection with the praetor's edict and with the Julian laws. CHAPTER II. ON THE MEANING OF ' INFAMIA.' It is now necessary to redeem a promise made in the preceding chapter, and to attempt to give a history of the word infamia, so far as it bore a juristic or quasi-juristic sense. Verbal discussions of this kind have of themselves little interest or importance : more especially with reference to a conception, which, as has been already shown, was expressed in no strictly technical terminology. It is, however, rendered essential in this case on account of the attempts which have been made to narrow the term down to a very special juristic signification — an attempt which has resulted in falsifying and obscuring the whole history of Civil Honour at Rome. To every reader of classical Latin literature it is obvious that infamia is used of the ill report which accompanies moral turpitude of almost every kind — a use which is so frequent as not to require illustration. It may be worth noticing, however, that it is used as synonymous with wordsj which we know, from direct evidence, bore a quasi- legal by the side of their ordinary signification. It is thus found conjoined with probrum ^, which, as we shall see, was the term regularly employed to denote the offence which led the censors to ' mark ' (notare) an individual : and with igTwminia ^, which we know was the name usually given ' Cie. pro Coel. 18, 42 ; cf. pro Quinot. 2, 9 and 14, 46. =■ Cic. Tusc. iv. 20, 45. ON THE MEANING OE ' INFAMIA,' 19 to the dishonour attaching to an individual in consequence of the censorian notatio. It need not surprise us, there- fore, if infamia — certainly the widest of the terms de- scriptive of ill-repute — bore the widest quasi-juristic sense. One further consideration will make it almost certain that this was the case. We have seen from the passage of Callistratus (p. 5) that existimatio came to have almost a technical juristic sense which we have attempted to translate by the words ' civil honour.' In the pleadings of Cicero which have reference to disqualification based on loss of reputation we find favia and existimatio used constantly as synonyms. In a passage of the speech pro Quinctio, for instance, he asserts that ' cujus bona ex edicto possidentur, hujus omnis fama et existimatio cum bonis simul possidetur ^ '. There was no convenient negative form for the term existimatio, which was becoming technical : but there was for its synonym fama : infam,ia, in fact, must have been the technical equivalent to laesa existimatio or minutio existiviationis. If we find a nari\)wer juristic sense attaching to this word in very late developments of Roman law, this is no proof that the narrower signification always attached to it, especially if we can show that, from historical causes, the restric- tion of the term was in the long run natural and perhaps inevitable. Even if we believe, however, that infam,ia was the juristic term usually employed for loss of civil honour, we cannot be always certain where it denotes a legal disqualification, and where a merely moral censure. We may take a rather extreme instance in illustration. Asconius tells us, with reference to the trial of Catiline for extortion in 65 B.C., ' pro Quinet. 5, 50 ; cf. 23, 73 : 24, 76 : 31, 97 and 98 ; pro Rose. Cora. 5, 15 ('bonae existimationis '), 6, 16 (' summae existimationis ') ; pro Rose. Am. 39, 112 and 114 ('infamia' opposed to ' honestas'). 2, 20 INFAMIA, [Chap. 'ita quidem judicio est absolutus Catilina, ut Clodius infamis fuerit praevaricatus esse: nam et rejectio judicum ad arbitrium rei videbatur esse facta ^.' Now we know from more than one source that praevaricatio, if proved, was followed by disqualifications both in public and private law: but he would be a bold commentator who would positively assert that infamis in this passage is used of the efiect of legal disability and not of moral censure. Even in an official document it is by no means always certain where infamia is used in a juristic sense. In the ' oratio ' which M. Antoninus sent to the senate on the sup- pression of the conspiracy of Avidius Cassius the following words occur ^: ' Ego vero a vobis peto, ut conscios senatorii ordinis et equestris a caede, a proscriptione, a timore, ab infamia, ab invidia . . . vindicetis ; ' infamia may here mean ' ill-repute ' simply, or it may have the later technical sense of exclusion from service to the State, which, by the time of the Antonines, was becoming more definitely attached to the word. Mommsen probably goes too far when he asserts that infamis was in the time of the Republic neither a legal expression nor a legal conception *, although he is no doubt correct in the assertion that the conception was variable, and not restricted to the special signification given it by Savigny and others. It was, probably, partly a juristic conception during the Republic : one of those that have become narrowed during the course of history, ' Ascon. in or. in tog. cand. p. 113. '' Vit. Avid. Cass. 12. ' Mommsen (Staatsr. i. p. 496, n. 2) says, with special reference to the question he is treating, i. e. qualification for office, ' Die Bezeichnung infamis wird meines Wissens in republikanischer Zeit nie auf den als beaeholten von der Wahl ausgeschlossenen Burger angewandt : freilich aber wiisste ich auch keinen anderen technisehen Ausdruck anzugeben, der die rechtliche Stellung zum Beispiel von Cicero's Clienten P. Sulla ausdriickte — vielmehr ist in/amis, wie unser ehrlos, zun^chst weder eiu Eeohtsausdruck noch ein Rechtsbegriff, sondern ein Ausdruck der gew5hn- lichen Rede und darum von schwankender Begrenzung.' 11.] ON THE MEANING OF ' INPAMIA.' 21 and which are unfortunately far better known to us in their later than in their earlier stages. The chief justification for the extended use of the term must, however, be derived from a criticism of those who hold that it bore, throughout the greater part of its early history and chiefly in Republican times, a narrow and special meaning. Most modern views of infamia havd been derived from the treatment of it by Savigny in his ' System des Romischen Rechts ' {^^ 76 sq.). His conclusions in that work are briefly as follows. After reviewing the causes of infamia, as they are expressed in the document from which they are best known to us, the praetor's Edict as given in the Digest, and after noticing that the object of the praetor's infamy is clearly shown, i. e. that it is merely a means of regulating procedure dignitatis tuendae causa, he raises the question, ' Did the praetor create this infamy?' He answers this question in the negative, and holds that the praetor ' presupposes the idea of infamy to be an old recognized legal notion, the limits of whose application were not by any means doubtful to him.' He considers that that application belonged essentially to public law : that the notion of infamy consisted in the loss of all political rights in regard to a subsisting citizen- ship. The infamis became an aerarius and lost the suffragium et honores. The definition of such a person was as follows : ' That Roman is called infamis, who in consequence of a general rule (not of censorian caprice), in regard to a subsisting citizenship, has lost the political rights belonging thereto.' His view of the final history of the conception is that ' this signification of infamy lost its importance under the Emperors, as the political rights of citizenship fell into the background. From this period, then, infamy only remained visible in secondary efiects ; and this accounts for the obscure form in which it appears 23 INFAMIA. [Chap. in our law sources.' But, perhaps, the most remarkable point in his conclusion is that this disqualification, while in the height of its political vigour, 'operated immutably- through life.' Infamia, according to Savigny, is a per- petual disqualification from all public rights, regulated according to general rules. This theory involves three main contentions, the evi- dence for which must be examined in some detail. They are, firstly, that there was a sharp and definite conception of infamia ; secondly, that infamia was consciously distinguished from the censoria notatio, the only procedure which, so far as we know, dealt extensively with political rights during the Kepublic, in enjoining a definite exclu- sion from dignitates and the suffragium ; and thirdly, that the disqualification entailed by infamia was permanent. The two latter contentions are to some extent identical, since we know that the censoria notatio might be, and perhaps in most cases was, merely temporary in its efiects ; they may, therefore, be discussed together. As regards the first point, it is remarkable that this definite and terrible disqualification left so few traces in Roman law that there is hardly a passage which can be interpreted as a distinct reference to it in the writings of the classical jurists ; but, even from these few traces left by the legal writers, the kind of definiteness demanded by Savigny's theory (i.e. definite exclusion from public rights) is by no means proved. In Dig. xlviii. 7 {ad legem Jvliam de vi pHvata) we find the following words of Marcian used with reference to those de vi privata damnati : ' Cautum est, ne senator sit, ne decurio, aut ullum honorem capiat, neve in eum ordlnem sedeat, neve judex sit: et videlicet omni honore quad infamis ex senatus consulto carebit:' It is possible that the last line adds no new penalty, but simply sums up the consequences enumerated just before ; II.] ON THE MEANING OF ' INFAMIA.' 23 even, however, if we suppose the senatus consultum to have increased the penalty, quasi infamis is only added to show the ground of the disqualification : the words are equivalent to 'on account of the minutio existimationis involved in condemnation.' A passage of Modestinus at the end of the same title (§ 8) seems to furnish a better instance of definiteness. It runs, ' Si creditor sine auc- toritate judicis res debitoris occupet, hac lege tenetur et tertia parte bonorum multatur et infamis Jit.' Here the last words do seem to extend a principle to a new case : but the principle so extended is simply the infamia of the laiv, or of its interpretation by the senatus consultum; and we cannot argue from the infaTniia following condem- nation in a single judicium publicum, to the conception generally. For it will be shown later on that the kinds of disqualification created by various criminal laws differed from one another. Consequently, so far as these passages are concerned, we need not admit the recognition of a definite infamia debarring from all honores even for the time of the classical jurists. The proof of the second contention — that infamia diflered from the censoria notatio, and excluded from all public rights, rests on passages which certainly do contrast the arbitrary discretionary power of the censors, in the usual exercise of their functions, with certain principles which entailed a more definite, perhaps a more permanent, disqualification. But nowhere in these passages is the term infamia applied to the latter form of disability and denied to the former. The reasons which led Savigny to restrict the term to the one class of cases were: that in the Digest we find that the praetorian infamia is an immediate effect of certain causes ; and that some of these causes are mentioned in Republican literature as producing consequences more serious than the ordinary ignominia of 24 INFAMIA. [chap. the censors. Therefore, it was argued, the individuals so affected must have been called infavnes, and distinguished from those who were merely notati. This is an uncon- vincing argument with respect to the history of a term so vague as that of infa/mia, and proves nothing as to its early usage. The more important question, however, is one that is not concerned with a mere name but with the procedure. Was there, in fact, a system running parallel with the censorship, which entailed more definite and permanent disabilities than were entailed by that office itself? Savigny and the writers who follow him answer the question in the affirmative : admitting, however, that the censorship was the only medium through which both kinds of disqualification were effected, but thinking that in the one case the magistrate was bound by fixed principles, in the other exercised his own discretion. That this distinc- tion is drawn for us by our authorities there can be no manner of doubt ; it is only on the question of interpreta- tion that we venture to differ from Savigny. The view that will be here maintained is that these fixed principles of disqualification, so far from being imposed on the magis- trate from without, were created by him, at least in the main. We know that there were certain laws at Rome which enjoined disqualification for certain offices; these, no doubt, the magistrate was bound to respect. But the historical evidence is, on the whole, in favour of the view that the permanent categories which we find iu the Lex Julia Municipalis and in the Digest were themselves the creation of magisterial authority, that the rules observed by the censors were to some extent tralaticiary, like the rules observed by the praetor iu his edict: but that, in consequence of the mode in which these rules were created, any magistrate might violate them without II.] ON THE MEANING OF ' INPAMIA.' 25 entailing on himself the consequences of the law. It is merely this distinction between a principle that should be observed, and one that might be neglected, by each succeeding censor that is drawn for us by Cicero in his speech ' pro Cluentio' (42, 119). He is arguing that, if the censoria auctoritas be a true judicium, then its conse- quences should be permanent, and ' therefore,' he says, ' ut ceteri, turpi judicio danmati, in perpetuum omni honore ac dignitate privantur, sic hominibus ignominia notatis neque ad honorem aditus neque in curiam reditus esset.' The particular instance given here of a turpe judicium is furtum. It was, therefore, improper for the consul or other presiding official to admit a man condemned for furtum to the magistracy, perhaps for the censor to admit him to the Senate. But that the former admission at least was not impossible we know from an actual historical instance, drawn from Cicero's own writings. In the speech ' In toga Candida' he taunted a certain Mucius with having ' compromised ' {pactus, depectus) in an actio furti — a proceeding which the Koman law regarded as equivalent to condemnation. This Mucius whom he addressed was at that time tribune of the Plebs^. The notion of exclusion ' Ascon. in or. in tog. cand. p. 112 'Q. enim Mucins tr. pi. interce- debat — himc Mucium in hao oratione Cicero appellans sic ait — "cum tecum furti L. Calenus ageret, me potissimnm fortunai-um tuarum patro- num esse voluisti — nisi forte hoc dicturus ea, quo tempore cum L. Caleno furti depectMS sis, eo tempore in me tibi parum esse auxilii vidisse." ' That the conception of padio as equivalent to condemnation was an early principle in Koman law is shown by the Lex Jul. Munic. 1. no 'quel furtei quod ipse fecit fecerit condemnatus pactusve est erit.' Cf. Dig. iii. 2 {d-e his qui not. inf.) ' qui furti, vi bonorum raptonim, injuriarum, de dolo malo et fraude sue nomine damnatus pactusve erit.' The principle itself is explained by Paulus (Dig. iii. 2, 5), ' quoniam intellegitur confiteri crimen qui paciscitur.' The only manner in which the case of Mucius could be regarded as exceptional would be on the principle mentioned by TJlpian (1. c. § 6) ' qui jussu praetoris pretio dato pactus est, non notatur.' But the words of Cicero sufficiently show that this was not the case. 26 INFAMIA. [Chap. as based on a turpe judicium must, therefore, have been a principle created by the magistrates and capable of being neglected by them^. Perhaps one of the earliest codifica- tions and legalisations of this, as of other, principles of disqualification is that which we find contained in the Lex Julia Municipalis, by which these principles were extended to municipal offices. In this law, and in the praetor's Edict, we find other private delicts^ producing infamia of difierent kinds ; but it cannot be shown that any of these delicts ipso jure produced disqualification for ofiice ; stiU less could they have necessarily involved the loss of the suffragium. If we pass from these private delicts to the next cate- gory given in these two documents we find that infamia followed condemnation consequent on certain obligatory relations^, such as Jiducia, pro socio, tutela, mandatum. It has been consequently argued that condemnation in these produced disqualification for the honores and the suffragium. That some serious breach of existiinatio did follow condemnation in these actions we learn from Cicero, who tells us (pro Rose. Com. 6, 16) that ' si qua enim sunt privata judicia summ^ae existimMionis et. paene dicam capitis, tiia haec sunt, fiduciae, tutelae, societatis,' the reason being the peculiar moral turpitude involved in such breaches of faith : ' aeque enim perfidiosum et nefarium est fidem frangere, quae continet vitam, et pupillum fraudare, qui in tutelam pervenit, et socium fallere, qui se in negotio conjunxit'; and Tnandatu/m, he describes as a turpissim/u/m * In the caae mentioned by Cicero (pro Cluent. 42, 120 'quos . . . censores furti et captarum pecuniarvun notaverunt ') the notatio preceded the judicium and was naturally of less weight than one based on a verdict. ' In the Lex Jul. Munio. furtum, injuriae and dolus mcUus ; the Edict adds vi bona rapta. ' Fiduciae (in Edict depositi), pro socio, tuMae, mandaU. II.] ON THE MEANING OF ' INPAMIA.' 27 judicium,^, one in which condemnation involves the loss of honestas omnis. Yet, if we try to discover what the loss of this existimatio involved, we shall find it very difficult to do so. He actually speaks, for instance, of Eoscius the actor, who, according to Savigny's theory, was ipso jure deprived of all political rights, as being in danger of losing bona eodstimatio in an action pro socio^. In the speech pro Quinctio he speaks of a writ of bonorum possessio as a causa capitis^, one which, if w£ take his language strictly, must have excluded from all political rights*. That this "was most certainly not the necessary consequence of a writ of bonorum possessio we know from the ease of an indi- vidual with whom Cicero himself was brought into very close contact. Antonius, his competitor and eventually his colleague in the consulship, had been excluded from the Senate by the censors on the ground, amongst others which they mentioned, that his goods were proscripta. Yet he was afterwards restored to that body, and finally raised to the highest magistracy in the State^. ' Cic. pro Rose. Amer. 39. 113, 114. ' Pro Eosc. Com. 5, 15. " On this language see above, p. 7, and of. Modestinus (in Dig. 1. 16, 103) ' licet " capitalis " latine loquentibus omnis causa existima- tionis videatur, tamen appellatio capitalis mortis vel amissionis civitatis intellegenda est.' In this particular speech pro Quinctio Cicero's abuse of legal phraseology is directed by the argument to which he wishes to lead up. This argument is contained in the words (9, 33) 'judicium esse, C. Aquili, non de re pecuniaria, sed de fama fortunisque P. Quinctii vides. Quum majores ita constituerint, «<, qui pro capite diceret, is postefi'iore loco diceret: nos, inaudita criminatione accusatorum, priore loco causam dicere intelligis.' This argument, eminently applicable to a criminal cause in which capid was iuTolved, does not in the least hold good for a case in which an indiyidual has to show cause why a writ, the consequence of which involved some loss of existimatio, should not be made absolute. * Pro Quinct. 13, 42 'quid igitur pugnas? an, quod saepe raultis in locis dixisti, ne in civitate sit, ne locum suum, quem adhuc honestlssime defendit, obtineat? ne numeretur inter vivos? decernat de vita et omamentis suis omnibus?' ' Q. Cicero, De pet. cons. 8 ' eorum alterius (sc. Antonii) bona proscripta 28 INFAMIA. [Chap. The solution of the riddle is that these cases involved no definite infamia, but might be used by the magistrates as a ground of exclusion from public functions. Where disqualifications were imposed by law at Rome they seem to have been invariably of the nature of appendices to special leges''-. We should, therefore, expect to find them an ingredient in the criminal law which grew up in the last century of the Republic, and to some extent appended as a sanction to administrative law. We should not look for them as a legally recognised element in the civil law : and the instances that have been cited show that this expectation is verified. But, when we turn to the criminal legislation of Rome, we find that there is ample evidence for a legal control over the powers both of the presiding magistrate and of the censor. The disqualification pronounced by a criminal law, and which followed condemnation in a criminal trial, was one that afiected eadstimatio, and therefore produced infamia : and this infamia was one which the magistrate was bound to see executed. When, however, we consider the character of the judicia publica or quaestiones per- petuae of Rome, we are not surprised to find that this disqualification was not of a uniform character. The criminal courts at Rome were of a gradual growth : and one of their most distinctive marks was that each court (quaestio) depended on a special lex^, which defined the vidimus.' Ascon. in or. in tog. cand. p. in 'hiuc Antonium Gellius et Lentulus censores . . . senatu movenint causasque subscripserunt, quod socios diripuerit, quod judicium recusarit, quod propter aeris alieni magnitudinem praedia manoiparit bonaque sua in potestate non habeat.' Cicero's word proscripta seems to show that bankruptcy proceedings are meant. ' Such laws are those spoken of by Cicero (pro Cluent. 43, 120) 'quibus exceptum est, de quibus causis aut magistratum capere non liceat aut judicem legi aut alternm accusare.' " Cie. pro Cluent. 36, 97 : Phil. i. 9, 23 ; Lex Acilia Bepetundarum, 1. 17 ; II.J ON THE MEANING OF ' INFAMIA.' 29 offence, the procedure, the punishment, and the disquali- fication (presuming that one was attached) which should follow condemnation. Thus we are told that the Lex Cornelia de Annibitu enacted that those condemned under that law should not be candidates for office for ten years, and that this was followed in 67 b.c. by a Lex Calpurnia dealing with the same offence, which enacted that the condemned should be excluded perpetually fi-om all offices and from the Senate 1. It is doubtful, however, whether either of these disqualifications is a quite fair instance of the later relation in which infatnia stood to criminal con- demnation ; they are described by our authority as the poena ; one was the whole, the other a part of the penalty, rather than a consequence following on con- denmation. This seems to have been the essence of the early disqualifications accompanying criminal laws ; they were in every case part of the penalty. The Lex Julia Repetundarum, besides ordaining exclusion from the Senate, seems to have enacted that any one condemned for an offence under this law should be incapable of being a judex or even of giving evidence in a court of law^- A very far-reaching, but probably late, extension of the principle of disqualification is found in the attachment to the Lex Julia de vi privata of exclusion from all office, from the Senate and from the bench of judices. This was effected by a senatus consultuvi, and the person so Dig. xlviii. 1, i 'non omnia judicia, in quibus crimen vertitur, et publica sunt, sed ea tantum, quae ex legibus judiciorum publicorum veniunt." ' Sehol. Bob. in Cie. pro Sulla, 5, 17, p. 361 Orell. '(ambitus) damnati lege Cornelia hoc genua poenae ferebant, ut magistratuum petitione per decem annos abstinerent. Aliquanto postea seTerior lex Calpurnia et pecunia multavit et in perpetuum honoribus carere jussit damnatos.' For exclusion from the Senate, Dio Cass. xxvi. 21. ' Dig. i. 9, 2 'judicare vel testimonium dicere.' That it excluded from the Senate may be gathered from a comparison of this passage with Suet. Caes. 43. 30 INFAMIA. [chap. disqualified is said to be excluded from these privileges quobsi infamis\ Criminal laws which contained such sanctions no doubt agreed in excluding from the magis- tracy and from the Senate. When minor disqualifications alone are mentioned we must probably apply the later legal principle given by Pomponius, that -'qui indignus est inferiore ordine, indignior est superiore'. This principle, reasonable in itself, was recognised in the municipia of the Empire, and municipal law is often but a reflection of that of the Republic^. Hitherto we have been dealing with the later period of criminal legislation at Rome ; but, even before the complete growth of the quaestiones, and their replacement of the old criminal procedure of the judicia populi, we find a striking instance of the general application of the principle of disqualification. In the year 104 B.C. we are told that a lex Cassia was passed which limited to a con- siderable extent the discretionary power of the censor ; for it enacted that 'quern populus damnasset cuive imperium abrogasset in senatu non esset^." It is a striking proof of the chaotic nature of the Roman infamia, so far as it depended on legislation, that the most sweeping measure of the kind was connected with the judicia populi which were rapidly becoming obsolete, and that, so far as we ' See p. 22. " Pomponius in Dig. i. 9, 4. For municipal offices, Dig. xlviii. 22, 7, 22 'si cui honore uno interdictum sit, non tantum eum honorem petere non possit, verum ne eos quoque, qui eo honore majores sunt ' ; but on the other hand interdiction from honores did not necessarily imply inter- diction from ordo, Dig. xlviii. 22, 7, 20 and 21 ; cf. Dig. 1. 2, 2. ' Ascon. in Cornel, p. 78. Mommsen (Staatsr. i. p. 492, n. i) argues that, although disqualification for the Senate alone is mentioned, yet the law must have implied exclusion from office, since the two were so closely connected. This is probably correct (see last note) ; but it is obvious that, if this was the case, the implication was not contained in the law itself. Only the more striking provision has been preserved by our authority. II.] ON THE MEANING OP 'INPAMIA.' 31 know, only a few of the Judicia puhlica contained clauses of a similar kind. At the same time we do meet with traces of a class of laws which recognised a disqualification, based on condemna- tion, which was a nearer approach to the later infamia. In the Lex AcUia Repetundarum of 12a we find it enacted that the praetor is not to assign as Judex in this court, or as a patronus to the prosecutor under this law, one who has been condemned in a certain kind oi judicium publicum'^; but this is only disqualification from certain causes and for a special purpose. Documentary evidence is, on the whole, in favour of the conclusion that criminal condemnation did not disqualify from ofiice at the end of the Eepublic. In the Lex Julia Municipalis only con- demnation involving exsilium is mentioned ; in the praetor's Edict (a reflex, as we shall see, of the censor's ruHngs) only condemnation involving loss of caput produces the praetorian infamia. But gradual legal interpretation (an instance of which is given us in the clause appended by a senatus consul- tum to the Lex Julia de vi privata) tended to establish the principle that infamia should follow condemnation for criminal offences ; that it was finally established we know from the words of Macer in the Digest (xlviii. 1, 7), ' Infamem non ex omni crimine sententia facit, sed ex eo, quod judicii publici causam habuit. Itaque ex eo crimine, quod judicii publici non fuit, damnatum infamia non sequetur, nisi id crimen ex ea actione fuit, quae etiam in ' Lex Aeilia Kep. 1. iii 'queive quaestione joudicioque publico con- demnatus sit, quod circa eum in senatum legei non liceat.' The words ' quod circa,' &e. imply that only certain judicia puhlica necessitated exclusion from the Senate. As a fact, however, only three judicia puUica appear to be known previously to this date : that repetundarum (of which this law is a re-enactment), a quaestio de sicariis (Cic. de Fin. ii. 16, 54) and possibly a quaestio de ambitu (Plut. Mar. 5). 32 INFAMIA. [Chap. private judicio infamiam condemnato importat, veluti furti, vi bonorum raptorum, injuriarum/ When it was finally established it was, although the completion of a process, little more than a juristic survival. Codification had led to the association of the disqualifications pronounced by criminal law with those attendant on civil actions, which, as we have seen, were not originally regulated by law. But this codification was effected earliest, for Rome itself, by the praetor's Edict, which had no reference to exclusion from state functions — the primary object of infamia — but only to a limitation in civil procedure. It is no doubt this praetorian infamia, with its minor disabilities, which Macer has, at least chiefly, before his eyes. It is true that the cases specified in the edict came again to involve dis- qualification for political offices, and there are not lacking' indications that this principle was gaining recognition as early as Hadrian and his immediate successors ; but exclu- sion from functions of state is neither mentioned nor assumed as a necessary consequence of infamia of any kind in the writings of the classical jurists ; the very fact that they mention the disqualifications created by special laws shows the absence of any such general consequence attending criminal condemnation at least. But a definite and uniform conception of infam,ia, developed from that of the praetor's Edict, was being reached ; and by a rescript of Constantine this infam/la is made a ground of exclusion from all offices and honours^- There must, however, have been a considerable interval between the extension of the ' The most universal rule is that of Constantine (Cod. 12. i, 2), ' neque famosis et notatis, et quos scelus aut vitae turpitude inquinat, et quos infamia ab honestorum coetu segregat, dignitatis portae patebunt.' Earlier and more partial constitutions are found in Cod. x. 32 (31), 8 (Valerianus) Cod. x. 59 (57) (Diooletianus and Maximianus). In another part of the work we shall trace the growth of this change further back still— to the time of Hadrian and the Antouines. II.] ON THE MEANING OP ' INF AMU.' 33 praetorian infamia to criminal condemnation and the recog- nition of the principle that exclusion from dignitates was a necessary consequence of this stigma. It is obvious, from the foregoing review, that the criminal law of Rome knew of no one perpetual disqualification attendant on a Tninutio existiviationis brought about by conviction. Above all, loss of the most distinctive poli- tical right of citizenship — the suffragium — is never men- tioned in these cases. Sometimes these laws disqualify from honores and from the Senate, sometimes from the album Judicum, sometimes they go so far as to inhibit the evidence of the condemned; but nowhere are the disabilities uniform, and nowhere do they imply the loss of all political privileges. It was the same with ordinary laws ; although some Roman statutes included loss of dignitas amongst the penalties mentioned in their sanc- tion^, it is quite possible that we have in such cases the exception rather than the rule: and there is no evidence that the disqualifications pronounced in these sanctions showed any more uniformity than those of the criminal law. We may now pass on to the cases in which all political privileges seem to be destroyed in consequence of infamia. The most extreme disqualification known to us in Roman public law was in most cases due wholly to the exercise of his power by the censor, and seems seldom to have been recog- nised by a law which controlled his authority. Nowhere do we find more strongly marked at once the power of this magistrate and the mode in which this power was con- trolled by precedents, which developed into rules, than in ' See tlie Lex Agraria (of iii B.C.) 1. 41 'neve ei ob earn rem magis- tratum quern minus petere capere gerere habereque liceto'; and the long list of disabilitiea appended to the fragment known as the Lex Latino, Tabulae Bantinae. D 34 INFAMIA. [chap. the practice of ' excluding from the tribe.' It was in the power of the censor, if he saw sufficient cause, to remove an individual from the tribe, or to * relegate him to the aerarii,' expressions the full meaning of which will be investigated in the next chapter, but which, when used in their strict and original sense, meant to deprive an indi- vidual, so censured, of his vote. Sometimes this procedure was arbitrary, and, when so employed, the censure was so grave as naturally to arouse a protest against the employ- ment of such a power by a magistrate on his own dis- cretion^. But in other cases this discretionary power disappeared before the unwritten rules of his office, which had been sustained for centuries. In some cases it was felt incumbent invariably to exercise this power of exclu- sion from the franchise. We find the principle recognised in the case of the profession of an actor. As we have already seen the exercise of any profession disqualified for a magistracy, and justified the presiding magistrate in refusing to accept the name of the individual associated with it. This disability, like the similar ordinance which forbade trade to senators^, only afiected existi/matio to a limited extent: but it was otherwise with what was considered a positively disgraceful profession such as that of a scenicus. Tertullian tells us ^ ' quadrigarios scenicos manifeste damnant ignominia et capitis deminutione, arcentes curia, rostris, senatu equite ceterisque honoribus ; ' and Augustine*, quoting Cicero, ' cum artem ludicram scenamque totam probro duxerunt, genus id hominum non modo honore civium reHquorum carere, sed etiam tribu moveri notatione censoria voluerunt': a passage, the ' Liv. xiv. 15. ' A principle perhaps recognised rather than established by a Lex Claudia of 218 B.C. ' De speot. 22. * De civ. dei, ii. 13. II.] ON THE MEANING OF ' INFAMIA.' ^5 technical terminology of which (as exemplified by the words probrum, trihu moveri, notatio censoria) shows that this exclusion was due wholly to the tralaticiary rules of their office established by the college of censors^. This is also implied in the language of Livy ^, where he accounts for the fact that the religious acting brotherhood of the Atellani, established to check the plague of 364 B.C., was not subject to these severe political disabilities. He says ' eo institutum manet, ut actores Atellanarum nee tribu moveantur, et stipendia, tamquam expertes artis ludicrae, faciant.' This conception of the ars ludicra as involving disgrace was naturally taken up, together with the others, when various necessities dictated the attempt to codify the idea of ivfainia. It appears in the Lex Julia Municipalis and in the praetor's Edict. But the chief point which we must notice here is that where the content of infamia is at its widest, where it means — what some would have it always mean — exclusion from all political rights, there its application is at its narrowest. It applies, so far as we know, chiefly to the case of one profession which was con- sidered disgraceful, and to the very exceptional instances in which censors chose to exercise their power of producing a complete suspension of all public rights, which might be reversed by their successors in office. This review is unfavourable to the belief that a definite and uniform conception oiinfamia existed in the Republic or even in the Principate. A summary of results may best ■ This principle is not contradicted by the case of Laberius described by Macrobius (Sat. ii. 7, 3). He claims to have lost his position as an eques the moment he appeared as a mime ; and so firmly was the principle established that the censor never admitted such to active citizenship that there was some justification in the claim. But, had the incident occurred in the Eepublic, Laberius might no doubt have retained his position both as an eques and as a voting citizen until the next census. ' vii. 2. D a 36 INFAMIA. [Chap. be made by referring again to the sketch which has been given in the first chapter (p. 14) of the various ways in which infamia might be pronounced. More definite answers can now be given to the questions stated there. Of the special kinds of infaviia we see that — (i) One was pronounced by the presiding- magistrate who had the right of admitting to honores, and who might refuse to nominate unworthy candidates ; or by an official who had the control of the ordines, and might degrade members from the ranks. Exclusions of this kind were based, chiefly towards the end of the Republic, on a mini- mum of statute-law; but the evidence is very strongly in favour of their having been based most largely on customary law, created by the magistrates and sanctioned by the tacit consent of the community. (ii) Another infamia was pronounced by the praetor, with reference to a narrow object of his own, the control of his court. By a strange accident of history, due to the early codification of the praetor's Edict, this became the infamia of later Roman law. It came eventually to have a political signification attached to it, justified by its character (for the grounds of the praetorian infamia were borrowed from those of exclusion from political rights), but quite disproportionate to its original object, and as the ground of deprivation of civil rights has influenced modern systems of law. (iii) Very many diflerent degrees of infamia were estab- lished by the criminal legislation of Rome, and to some extent by administrative law. But the gradual growth of this legal infamia may be tested by the fact that it took some centuries of interpretation to evolve even the simple principle that criminal condemnation in a jvdicium publi- cwm produced disqualification for the exercise of public rights. How from these various conceptions one ruling II.] ON THE MEANING OF ' INFAMIA.' ?>1 idea oiinfamia developed, it will be the main object of this work to show. The scattered threads can only be collected when we have dealt with the infamia of the praetor's court, which became the dominant legal form of this disability. Now that we have reviewed the chief modes in which infamia operated during the greater period of its growth, we are in a position to judge how very ill-defined this institution was both in its causes and in its consequences, and how impossible it is to gain any clear conception of it apart from an examination of the specific modes of its exercise. When we know it at the latest stages of its development it was an institution regulated according to cei-tain rules, but the formation of these rules was the work of centuries ; and hence a definition applicable to the conception at every stage of its history must be so general as to be almost valueless. From this general point of view we may perhaps repeat the definition which we have given elsewhere and say that the Roman infamia 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 involving disqualification for certain rights both in public and in private law ^.' But iU-defined as the actual working of the institution may be, its general relation to the personal rights of the individual is sufliciently clear. Existiviatio, or the moral approbation of the State, which was one of the grounds on which the full exercise of personal rights was based, is a conception applicable only to the individual, and has reference only to the capacities he may be possessed of durino' his lifetime. Hence the minutio of it does not •o 1 Art. Infamia in Smith's Dictionary of Greek and Roman Antiquities (3rd edition). 38 INFAMIA. [Chap. extend beyond the lifetime of the individual, and infamia is not hereditary; it does not destroy status, and therefore cannot be perpetuated ^. Again the instances already cited are sufficient to show the truth of Savigny's remark, that infamia always follows as the result of a personal act. Infamia always involves the idea of personstl responsibility, and thus, from a moral standpoint, rises far above the mere conception of status. The law, it is true, makes little distinction between the degrees of individual responsibility ; as in Ai-istotle's conception of distributive justice, the end in view is too great a one to make it possible to scrutinise closely the moral claims of the individual. The State deprives the man who chooses to remain an actor of his vote, it debars the auctioneer and the undertaker from municipal magistracies ; it may sometimes omit to impose such severe disqualifications on a man guilty of crime or breach of faith. But, although the degrees of moral censure are not perfect, and indeed cannot be, when we are dealing with the interests of the State, yet the idea of responsibility is apparent throughout. It is clear also that the personal act which produces infamia may do so in two ways ; it may lead to it either directly or indirectly ; to quote again Savigny's admirable analysis of the conception, ,■ infamia depends either on a judicial sentence or on an extra-judicial matter of fact; it is, to use the technical terms invented by modern commentators which do not appear in our ancient texts, either mediate or immediate : mediate when it follows on a judicial sentence, immediate 1 when it is the consequence of a matter of fact. This distinction is not of sufficient importance to make it an adequate fundam^ntum, divisionis for the discussion of the whole of the subject: but it will be found ' This was the principle of the early infamia ; we shall find one instance in which it was modified during the Empire, p. 149. II.J ON THE MEANING OF ' INFAMIA.' 39 a convenient basis for classifying the actual grounds of infawAa, as they are known to us in their fullest extent. In connection with this distinction, however, and with the general estimate of infamia discussed in this chapter it will be convenient to mention the conditions laid down by the classical jurists and recognised by the legislation of the emperors, which were requisite to enable infamia to take eifect. With respect to immediate infamia nothing is said, because no further definition was needed to complete the conception. It depended simply on a matter of fact, and to make this infamia effective, nothing more was needed than suiEcient evidence of the fact before the magistrate who admitted to office or before the praetor. With respect to mediate infamia the case was rather different. It was the result of a sentence : and what was meant by a sentence had to be clearly defined by the jurists. The first condition laid down is that the ; author of the sentence must be a judge. The decision of an arbiter did not produce infam.ia^. Secondly, the decision of the judge must be pronounced as the result of a trial {causa cognita). A mere remark or interlocution introduced by a judge during the course of a trial did not have the same effect. Thus calumnia, if proved after a trial, produced infamia, but if the judge turned to one of the parties during an action and intimated that he was guilty of calumnia, no results followed this statement of belief^- Equally ineffective was the expression of opinion on the part of a judge that the evidence to which he was listening was false ^. " Ulpian in Dig. iii. 2, 13, 5. * Ulpian in Dig. iii. 2, 13, 6; Cod. iii. 11 (12) 17 (Gordian a. d. 242) : ' etenim cum non causa cognita dictum est avxocpavTih (i. e. calumniaris), sed ad postulatum patroni interlocutione judicis respousum sit, nequa- quam hoc infamiam inrogat.' ^ Paulus in Dig. iii. 2, 21. 40 INPAMIA. Again, a sentence in a criminal court was invariably followed by some form of punishment. But infamia is always the result of a sentence, never of any particular form of punishment. A punishment in itself disgraceful, such as scourging, does no injiu-y to existimatio^. We shall see the peculiar importance of this principle when we come to discuss the modes by which infamia was extin- guished, and the curious relation which was established, in the procedure of the Empire, between a sentence and a punishment, when it was thought fit to reestablish a man in the fuU possession of his civil honour. "■ Marcellus in Dig. iii. 2, 22: 'ictus fustiom infamiam nou importat, sed causa propter quam id pati meruit, si ea fuit, quae infamiam damnato inrogat. In ceteris quoque generibus poenaram eadem foi-ma statuta est.' Of. Cod. ii. 11 (12), i and 14. CHAPTEE III. THE CBNSORIAN INFAMIA AND ITS DEVELOPMENTS. § 1. General characteristics of the censorian infamia. In the year 443 B.C. a magistracy was established in Rome, which was ' a small thing in its origin, but grew so great that it came to hold in its hands the guidance of the manners and of the training of Rome ^.' The primary duty of this new magistracy, the censorship, was that of number- ing the people — one that had originally belonged to the supreme magistrate, the consul: but which, like the financial business of the State, wa,s gradually felt to be incompatible with the exercise of the active functions of that office. The duties of the censor, though apparently multifarious, really spring from a common source. With the registration of citizens was intimately connected the assignment of the pecuniary burdens which the State imposed on individuals ; hence the connection of the censor with Finance. With registration was still more intimately connected the con- sideration of the moral worth of the individual citizen, | as a guarantee of the proper exercise of even the most sub- ordinate public duties : h ence the censorian ' rule of manners ' (regimen morum). So closely were the three functions associated that we shall see how the censors sometimes employed the powers given them by the control of taxation ' Liv. iv. 8. 42 INPAMIA. [chap. as a means of emphasizing their disapprobation of a moral offence. The separation of these duties from the consulship and their attachment to the new office must have had a very important influence on the history of the Roman infamia. The idea itself, of a rejection of individual citizens from service to the State based on moral grounds, cannot have been a new one. It must have been as closely associated with the consular registration of the mass of citizens as it was without doubt one of the grounds on which the consuls exercised their right of selecting or rejecting the members of their own peculiar advising body — the Senate. But, just as the rules for selecting senators became for the first time definite and formulated when this duty was transferred to the censors, so the principles which i-egulated the infamia must have become more precise, when they were in the hands of a magistrate, of whom they were felt to be not only the special but the chief function. To the average consciousness the significance of the censorship as a means of moral control completely overshadowed the other attributes of that office. There came a time in the history of the Republic, during the period succeeding Sulla's reform of the constitution, when it seemed possible to dispense with all the duties of registration connected with this office. The abolition of the tributum had taken away their powers of taxation ; the centuries of Roman knights, which they were in the habit of revising, had almost ceased to exist as a distinct body: and the Senate was filled up by a fixed and self-working principle of admission. Yet the cry for the censoriuum nomen was raised; but raised only as a demand for an authority which could punish outrages on justice, with which at times the criminal law could or would not deaP- This was the only pretext ' Cie. Div. 3. 8 'judicum culpa atque dedecore etiam censorium uomen, Ill-] THE CENSORIAN INFAMIA. 43 for its restoration during the closing years of the Eepublic, and one sufficient to quicken it into occasional life, as long as there was a real meaning in the institution. When the rule of the free burgesses at last gave place to the administration, under imperial guidance, of the twin bureaucracies of the senatorial and equestrian orders, this department of the office still survived, sometimes under the same, sometimes under other names, for the purpose of preserving the purity of the lists of these two governing classes. It would on a priori grounds be inconceivable that an institution which had such a history as this, and in which the procedure was so uniform and so invariably directed to the same issues, should not have developed a code of its own, setting forth both the grounds and the consequences of disqualification with some adherence to a logical classifi- cation. Even documentary precedents were at hand on which successive censors could model their judgments. We shall see that the censors were in the habit of issuing edicts, and each succeeding holder of the office had at least before him his predecessor's list of names, under which were written the grounds of disqualification. We may elicit from Cicero, an unwilling witness, the fact that suc- ceeding censors had begun to give a permanent character to decisions pronounced by those who had previously held office. Eut we cannot help a feeling of disappointment quod asperius antea populo videri solebat, id nunc poseitur, id jam populare atque plausibile factum est.' The senatorial iurft'ces were crimin- ally liable for judicial corruption : the equites were exempt by a clause of a law of C. Gracchus which was constantly upheld (Cic. pro Cluent. 55, 154 : ad Att. ii. 1, 8). The law of C. Gracchus seems even to have limited the power of the censors to take cognisance of this offence (Lex Acil. Eep. 1. 28). Cicero's remark in the passage quoted is justified by the fact that the censors often took it on themselves to degrade for offences which had not been proved in a court of law. Cf. Cic. pro Cluent. 42, 120. 44 INFAMIA. [Chap, when we turn to the specific instances of censorian severity with which our authorities have furnished us. It is time that to a large extent they do bear out our expectations, for they often show us constantly recurring acts punished in a constantly recurring manner. What we have really to guard against is the supposition that we have "here anything like the true relative proportions of the moral offences they visited, or anything approaching an exhaustive catalogue of such offences. Mommsen has well remarked that our authorities pos- sibly present us with more exceptions than rules. A historian like Livy, who loves to chronicle exciting inci- dents, tells us of a censor who disfranchised almost the whole Eoman community for an alleged abuse of its power of voting ; but he would form a strange impression of the censorship who imagined that it often proceeded on the lines of such official insanity. Raconteurs and scholars like Plutarch and Gellius single out, as we should expect, only the strangest and most amusing instances from the mass before them — perhaps in some cases they were the only ones that had survived. And meanwhile all forget to mention cases, which must inevitably have occurred at every census, but which were too ordinary to attract attention. We may anticipate for a moment and take as a case in point one of the simplest and most obvious duties known to the Eoman, and enjoined no doubt by the pontifical law of Rome — that of mourning for the dead. A violation of this mourning, in a modified form, is visited with infamia by the praetor's Edict, as known to us in the Digest; a violation of it in the extreme form which it assumed in the Republic, must a fortiori have often been visited by the guardian of morality and religion : yet no instance appears in our authorities. Such simple instances have naturally given place to the III.J THE CENSORIAN INPAMIA. 45 more exciting stories of Koman knights who were struck from the list for making witty but indiscreet remarks to the presiding magistrates, or of a senator whom Cato degraded for kissing his wife before his unmarried daughter. It is also a singular and rather an unfortunate coin- cidence that the most detailed account which we possess of the theory of the censorian supervision, given us by a capable authority who lived at a time when the office was in fuU — though not its fullest — vigour, should come from what all must admit to be a prejudiced source. The object of Cicero, speaking as a barrister in defence of Cluentius, is to throw discredit on the whole censorian system, and to elicit the sympathy of a jury with whom this system was never very popular. The passage is, no doubt, of the greatest importance for our subject, and may be safely used, if only we remember that we have here a characteristic instance of the mode in which the orator ' threw dust in the eyes of a jury.' Such considerations should be borne in mind by those who object to the attempts to fill up the gaps between the earlier and later stages of the infamia by pointing to the fact that there are discrepancies between the historical instances of the one and the documentary evidence for the other. It will be shown that in aU probabiKty every case that we find in the praetor's Edict had its prototype in the censorian procedure— only that these more ordinary, although not less serious cases — have not been transmitted to us, in connection with the censorship, on account of the peculiar nature of our evidence. The function of the censors with which we are concerned, is generally summed up briefly as the rule of manners (regimen morum) : it is also described as the apportionment of honour and dis- honour, as the mode in which position [dignitas) was 46 INFAMIA. [chap. assigned, and moral disgrace punished^; and, although the consideration of the complex functions of the censor- ship, which made it the most anomalous of Roman magistracies, is outside "the scope of this work, yet it is necessary to examine some of the attributes of the office which were peculiarly associated with ihis censoria potestas. Both the extent and the limitations of the powers involved in it are the only adequate explanation of its development, which was an outcome both of its weakness and of its strength. There are four attributes of the office with which we are concerned. The first is one which secured its power and freedom, namely, its iiTesponsibility ; the three others are modes in which some limitation of this power was effected ; they are, the short tenure of office, the impossibility of re-election, and the collegiate principle. (i) The censorship is spoken of by Dionysius as an irresponsible office (apxrj awnevdwosy : and the irresponsi- ' Cio. De Leg. iii. 3, 7 ' oensores mores populi regunto ; probrum in senatu ne relinquunto.' Liv. iv. 8, 2 ' in senatu equitumque centuriis deeoris dedecorisque discrimen sub dicione ejus magistratus esset.' Cf. Liv. xl. 46 ; xli. 27 ; xlii. 3. In Cicero (pro Cluent. 46, 128) the functions of the censors are summed up as consisting 'in delectu dignitatis et in judicio civium et in animadTersione vitiorum,' cf. | 129 ' tu es praefectus moribus, magister veteris disciplinae ac severitatis.' De Prov. Cons. 19, 46 'illud morum severissimum magisterium.' ' Dionys. xix. 16. The scandals connected with the censorship, of 204 E. 0. (Liv. xxix. 37) led to an attempt to call the censors to account (' Cn. Baebius tr. pi. diem ad populum utrique dixit '), which was resisted by the Senate who declared these magistrates irresponsible (Liv. 1. c. ; Val. Max. vii. 2, 6). Attempts of the same kind were made by the tribunes both before (in 214 b. 0. Liv. xxiv. 43) and after this senatus- considtum (Liv. xliii. 16). This latter was successful : and although the trial of Gracchus and Claudius in 169 b. o. arose from their financial business with the publicani, yet the special charge brought by the tribune against Claudius ('quod ooncionem a se avooasset') might apply equally to any exercise of the censoria potestas which infringed the majestas of the tribune. The same cause led to the very violent attempt of the tribune C. Ateius Ill-] THE CENSOEIAN INPAMIA. 47 bility was marked by the fact that they could not be called to account judicially for any act done in connection with the census. This principle seems never to have been strictly recognised by law : at best it was guaranteed by a decree of the Senate of the year 304 b. c. ; yet so impor- tant was the principle felt to be, that every attempt to enforce responsibility, which was made by the tribunes, was either staved off by the Senate or remitted by the good sense of the magistrates themselves, and ended in failure. It was not until the year 58 B.C. that a definite attempt was made to render the censors responsible. One of the effects of the Clodian plebiscitum of that year would certainly have been to render the censors judicially liable for a breach of any of the provisions contained in that law. But this law was soon repealed, and even had it remained valid, came too late in Republican history to alter the development of the regimen morum. Not only were the censors exempt from all liability for their past actions ; they were also free from the usual fetters of a Roman magistrate during their tenure of power : and it is quite clear that the tribunician veto, the only one which could ' have affected this office, was not applicable against the specific potestas exercised in connection with the census^. It is difiicult to form a judgment on this aspect of the office ; but the belief is at least permissible that the Roman censorship would have been a more valuable contribution Labeo to secure the responsibility of the censor Metellus by carrying him off to the Tarpeian rock (Plin. H. N. vii. 44). Although Metellus' life was saved, yet, according to Pliny, he was condemned for majestas and his goods confiscated. ' The powerlessness of the tribune with respect to the census is shown by many passages of Livy ; see amongst others Liv. xliv. 16 ' multis equi adempti, inter quos P. Kutilio, qui tr. pi. eos violenter accusarat : tribu quoque is motus et aerarius factus.' The obnuntiatio could, however, be used against the summons of the people to the census and lustrum, as against any other contio (Cic. ad Att. iv. 9, i). 48 INPAMIA. [Ohap. to the moral history of the world had its powers been limited in some more definite way. Had the ofiice been a responsible one, it would either have evolved of itself more definite rules of conduct, or have had such rules imposed on it from without, which would appear with some distinctness in our authorities. But it is only by the historian in his search for records that the regret can be entertained. As early codification is in every case a misfortune — and one that may be gauged in this par- ticular instance by a comparison of the later with the earlier infamia — it was in strict accordance with the pro- gressive political institutions of Eome that she recognised a progressive moral code as equally in harmony with her national life. (ii) The limitation of the censors' tenure of office to eighteen months — a tenure which, even as thus fixed, exceeded that of the other Republican magistrates — was an assertion of the principle that the censorship was merely an occasional office : nor is it probable that the office was ever coextensive with the quinquennial period of the lustrum. Since it is probable that the cur a moruw, came eventually to be exercised at other times than when the census was actually in progress, this rule was an effective guarantee against the possibility of the peculiar moral notions of two men being imprinted on the life of the State for an uninteiTupted period of five years ^. ' In Liv. iv. 24 we find the mention of the law of the dictator Mamereus Aemilius (434 a. c.) by which the censorship was limited to eighteen months, and in Liv. ix. 34 Claudius' attempted violation of this law. Mommsen (Staatsr. ii. p. 349) thinks the original quinciuennial pei-iod of the offtce a mistake due to a confusion between the duration of the validity of the censorian ordinances and the duration of the oiBce itself. He suggests that this Lex Aemilia first made the censorship an indepen- dent magistracy with a fixed tenure. The words that Livy (iv. 24) assigns to the dictator, 'grave esse, iisdem per tot annos magna parte vitae obnoxios vivere,' although true of the later powers of the censor, III.] THE OENSOEIAN INFAMIA. 49 (iii) Re-election to the censorship was forbidden, and on I the same grounds which dictated the last-mentioned limita- \ tion. But this prohibition was still more important in fostering a free and powerful, because unconscious, develop- ment of the infamia^ Since succeeding colleges had always the power of reversing the actions of their predecessors, it was essential that these officials should not have a chance of stereotyping their decisions or reverting to an antiquated procedure. The swing of the pendulum from conservatism to liberalism in moral notions must no doubt have been an interesting subject of contem- plation in connection with this office ; but like the changes of parties and of programmes it was healthy, and while the high- water mark of conservatism has left its trace every- where on our records, the more moderate holders of the office are concealed in consequence of the more modified views they took as to the average demands that might be made on human nature. But by far the most effective limitation on censorian caprice arose from the collegiate nature of the office, and the mutual power of veto which this principle involved. In accordance with the theory of the Eoman collegiate system the censors act independently of one another, and the negative in every case overrides the positive decision. Thus the senator whom one censor erased from the list might be retained by his colleague, the new candidate are an anachronism with reference to the time at which they are supposed to have been uttered. ^ Liv. xxiii. 23 'nee censoriam vim uni permissam, et eidem iterum.' In Plut. Cor. I we find a reference to Marcius Censorinus and his law against re-election to the censorship. Cf. Val. Max. iv. 1. 3 'Marcius Eutilus Censorinus (Censor 294 and 265 B. c.) . . . populum . . . oratione corripuit, quod eam potestatem bis sibi detulisset, cujus majores, quia nimis magna videretur, tempus coartandum judicasaent.' Mommsen remarks that the law could not have been the work of Censorinus, as the censor had no power to introduce laws (Staatsr. i. p. 520). 50 INFAMIA. • [chap. whom one placed on the list of the Senate might be re- jected by the other. When Cicero attempts to exhibit this power of the censors' to annul one another's actions as one of the inherent weaknesses of the office, which destroyed the respect that might be paid to its decisions^, he ignores for the moment the fact that Uie same argu- ment might be used with greater force of the highest civil magistracy of Rome, the praetorship ; and that this conflict in the censorship is not necessarily one act of caprice overriding another, but may be due to the oppo- sition of two rules of procedure, or to the assertion of a rule of procedure over an act of caprice. Nowhere was this conflict of authority more necessary than in cases where principles had to be maintained and minute ques- tions of personal evidence investigated by magistrates, who also pronounced a penalty varying in its degrees, and which was supposed to be nicely adjusted to the gravity of the offence. Those must indeed have been remarkable years mentioned by Livy — remarkable, that is, for the blackness of their criminals in high places—^ in which there was perfect agreement between the censors as to the individuals to be excluded from honours and as to the form which this exclusion should take *. The quasi-judicial position of the censor is at once ' Cic. pro Clueut. 43, isa 'atque etiam ipsi inter se censores sua judicia tanti esse arbitrantur, ut alter alterius judicium non mode reprehendat, sed etiam resoindat t ut alter de senatu moveri velit, alter retineat et ordine amplissimo dignum existimet : ut alter in aerarios referri aut tribu moveri jubeat, alter vetet.' App. B. C. i. a8 ti/mjt^i Koii/tos KamlXtos M^reWos (censor loa b. c.) T\avKiav re PovXiiovra Kal 'AirovK^iov :SaTopvTvov SeSr/fiapxiiKora ijSrj Trjs a^iiiaias wapiKvf — oi /lijv iSwijBrj' i y&p ol ffwapx""' "w aw40eTO. " Liv. xlii. lo (173 B.C.) 'concors et e republica censura fuit. Omnes quos senatu moverunt, quibusque equos ademerunt, aerarios fecerunt, et tribu moverunt : neque ab altero notatum alter probavit.' xlv. 15 (168 B. c.) ' omnes iidem ab utroque et tribu remoti, et aerarii facti.' III.] TEE CENSORIAN INFAMIA. 51 apparent from this review of his most essential attributes. The framing of the edict by successive colleges of magistrates, the mutual veto within the college, operated here as they did in the praetor's court. And, as the praetor was bound to embody statute-law in his edict, so the censors must have been morally bound to recognise and carry out the sumptuary laws and the laws repressive of particular forms of immorality^. The chief difference was that the actual procedure in the censor's court was less vigorous and less uniform, and the question raised for us by Cicero ' how far was the censorship a JudiciumV depends for its answer on the extent to which the censors can be shown to have recognised the formahties which were usual in the ordinary process of law. The censorian process is often spoken of as a trial ' {Jvdicium), or as a trial concerned with morals {judiciwm de moribusY: sometimes more generally as a cognizance [notioY. Cicero's arguments against its being a, judiciwm are that none of the accompaniments of a regular trial, such as sworn evidence or records, were essential to the exercise of what he calls the censorian auctoritas, and that the decisions of the censors did not command that universal respect which was accorded to judgments pronounced by a competent court*. Both these arguments 1 An instance of activity of this kind is furnished by Appius Claudius, censor in 50 b. c. Cic. ad Fam. viii. 14, 4 ' Scis Appium censorem hie ostenta facere ? de signis et tabulis, de agri modo, de aere alieno acerrime agere ? ' " Lit. xxiii. 23 'judicium arbitriumque de fama ac moribus,' cf. Cic. pro Sest. 25, 55 ; de Prov. Cons. 19, 46 ; in Pis. 4, 10 ; Tac. Ann. xi. 25 'judicium censorum.' Judicatio is also employed by Cicero (de Kepub. 4, 6), and in Gellius (iv. 20) we even meet the expression ' in jure stare ' used of a man appearing before the censors. 2 ' Notio,' Cic. pro Sest., de Prov. Cons., in Pis. 11. cc. ; Liv. xxvii. 25. » Cic. pro Cluent. 45, 126 ' Quid igitur censores secuti sunt ? ne ipsi quidem, ut gravissime dicant, quidquam aliud dicent praeter sermonem atque famam. Nihil se testibus, nihil tabulis, nihil gravi aliquo argu- E a 53 INFAMIA. [Chap. are no doubt theoretically valid ; as regards the first, it is clear that the censor's acts are legally a pure exercise of discretion {arbitrium) and independent authority {auc- toritas): they seem to have been spoken of usually as animadversiones, a word which does not necessarily convey, although it does not deny, the connotation of regular forms of procedure. It is hardly necessary to add the main point which differentiates the censor's court from a criminal trial at law, and that is that the consequences of the procedure in the former were never regarded as strictly penal. Although it might disqualify, it did not ! punish, and the result of the censor's judgment was only ignominia'': The process was spoken of as a notatio, from the mark (nota) which the censor made under the name of the person affected, to which was appended a written record of the cause or causes for which he had been degraded (subscriptio)^. It is evident that this record might take either one of two forms, in accordance with the nature of the grounds on which it was based. It might be either a record of an ah-eady proven fact or a statement of the belief of the censors^. In the former case, in which nothing required to be proved, the necessity for judicial procedure would clearly be obviated : it was niento eomperisse, nihil denique, causa cognita, statuisse dicent ;' 42, 117 'Sequiturid, quod illi judicium appellant, majores autem nostri numquam neque judicium nominarunt, neque proinde, ut rem judicatam, obaer- vaverunt, animadversionem atque auctoritatem censoriam' (cf. 44, 123 ; 46, 128) ; 42, 1 19 ' Hie primum illud commune proponam, numquam animadversionibus censoriis hanc civitatem ita contentam ut rebus judicatis fuiase.' ' Cie. de Eepub. 4, 6 'ut omnis ea judicatio versatur tantum modo in nomine, animadversio ilia ignominia dicta est.' " Liv. xxix. 42, 6 ' ut censorea metis e senatu adscribereut notas.' Cic. pro Cluent. 45, 118 ' subscriptiones ' ; ib. 42, 119 'causam subscribere.' A good instance of a sitbscriptto written under a senatorial name has been preserved by Asconius (in Or. in tog. cand. p. iii) ; see p. 27, note 5. ' Cic. pro Cluent. 44, 123 'ac primum illud statuamus, utrum, quia censores subscripserint, ita sit, an, quia ita fuerit, illi subacripserint.' III.] THE CENSOEIAN INFAMIA. 53 in the latter case that it required to be, and, bo far as we can determine, was in most cases resorted to. We possess, in fact, abundant evidence that, in the latter case, all the main outlines of a judicium, were present: and that a censor endued with a full conception of his duties, refused to act even on his strongest convictions of guilt, unless these were supported by independent accusation and evidence. Thus we find Scipio Africanus, censor in 199 B.C., expressing his firmest belief that a knight who stood before him had committed perjury, and inviting evidence of the crime. When this evidence was not forthcoming, he said ' Lead your horse on : I will not act the part of accuser, of witness, and of judge^'. The summons to the supposed delinquents to plead their cause {causam dicere), the accusation by a third party which was sometimes invited, sometimes offered spontaneously, the evidence of witnesses who were summoned in his favour by the accused, and the defence which was per- mitted him, all conduced to create in the procedure before the censor a strong resemblance to the ordinary process of law^. We must bear in mind, however, that these forms, although they might have been usual, were by no means necessary : and that, above all, the censors could not ^ Cic. pro Cluent. 48, 134 ; Val. Max. iv. 1, 10 'Traduc equum, inquit, Sacerdos, ae lucrifao censoriam notam, ne ego in tua persona et accusatoris, et testis, et judiois partes egisse videar.' ^ Summons : Liv. xxiv. 18 (214 b. c.) 'jusso deinde eo eeterisque ejusdem noxae reis eausam dicere, quum purgari nequissent, pronuntiaverunt ' ; accusation: Liv. xxix. 42 (Cato's censorship 184 B.C.) 'longe gravissima in L. Quinctium oratio est, qua si accusator ante notam, non censor post notam, usus esset, retinere Quinctium in senatu ne frater quidem T. Quinctius, si turn censor esset, potuisset'; accusation and defence: Plut. C. Gracch. 2 xaTTjyopias avrZ yevonevris knl toiv TiiajTuv k.t.X. ; wit- nesses : Cic, Val. Max. 11. cc. In Gell. (It. 20) we find the story of a witness, summoned for the defence, who excited the censor's displeasure by yawning, and only escaped degradation by pleading that it was a physical infirmity. 54 INFAMIA. [Chap. wait for the formal accusation of a delinquent. They were, by the very nature of their office, necessarily influenced by a prevailing rumour growing out of a prevailing scandal^. If the rumour was prevalent that a bench of jvdices had been bribed, the censors would be on the look out for these Judices at the census, and, as in the case of the consilium Junianum, if they could not punish all, would at least punish the most guilty. From an adverse point of view it might easily appear as if the censorship were swayed by the ventus popularis, and as if they adopted the procedure of visiting their displeasure on certain individuals of a class, ' to encourage the others.' But this latter defect could not be helped, and is indeed a proof of the caution with which the censors directed their animadversions. With regard to the second point made by Cicero, that the judgments of the censors did not command the universal attention of those of the courts of law, it is true that the censorian infamia was not bound to be respected by other magistrates, except with reference to the particular disqualification pronounced by the censor. Besides the instances of the election of men suffering from ignominia of various degrees to a magistracy we are told that the censor's judgments did not necessarily influence the praetor in his selection of the Judices^- But Cicero's statements must mark the exceptions, not the rules. If it were true that the censor's judgments were systematically disregarded both by magistrates and people, the continuance of the regimen morum would have been an impossibility. ' Cic. pro Cluent. 47, 130 'verum omnis intelligimus, in istis sub- scriptionibus ventum quemdam popularem esse quaesitum— piaetermitti a censoribus, et negligi macula judlciorum posse non videbatur.' ^ Cic. pro Cluent. 43, 121 ' Praetores urbani, qui jurati debent optimum quemque in selectos judices referre, numquam sibi ad earn rem censoriam ignominiam impedimento esse oportere duxerunt: cf. 45, 126. III.] THE OENSOEIAN INFAMIA, 55 Yet the ai-bitrary employment of the notatio was, in the later Republic, in an age intolerant of discipline, and jealous of any authority which it did not seem to control, regarded as a defect of the office. The attack came from the democracy, but, unlike Sulla's practical abolition of the office, it assumed a wise and moderate form. Amongst the plebiscites passed by the tribune Clodius, in the year 58 B. c, was one enjoining that individuals, before being subjected to ignominia, must be condemned by both censors and must be impeached by a third party ^. The first of these regulations appears at first sight to intro- duce no innovation : since no ignominia pronounced by one censor could at any time have been effective without the tacit consent of his colleague. It shows, however, that, where no difference of opinion was contemplated, the cen- sors were accustomed, for the purpose of expediting busi- ness, to act independently of one another : and the meaning of the regulation must have been that in all future cases, the cognisance was to come before both of the magistrates sitting together. This would have rendered their proce- dure more formal, and have added weight to their judg- ments. The second element in the new procedure was one that, as we have seen, was never ignored, but was not always observed, by the censors. Its enforcement, by the law of Clodius, would have had the effect of taking the initiative from the censors in every case, and in this respect, as well as in the closer investigation which this change necessitated, it would have brought the censorian process nearer to a process of law. It lessened the censor's arbitrary power in one respect, in that it would have pre- vented him from taking cognisance of a great many offences ' Ascon. in Pison. p. 124 : ' ne quern cenaores in senatu legendo praeter- irent, neve qua ignominia affioereut, nisi qui apud eos aecusatua et utriuaque eenaoris sententia damnatus esaet.' Cf. Dio Casa. xxxviii. 13. 56 INFAMIA. [chap. which he would gladly have noticed, and which were per- haps specified in his edict — but this was a clear gain to the censorship as an institution ; for it was the one regula- tion necessary for bringing the office into close harmony with current public opinion. It would also have lessened the censor's discretionary authority in another and still more wholesome manner : in that it would have prevented him from ignoring the disqualifications pronounced by law, the effectiveness of which rested hitherto on his knowledge and his choice of initiative, but on which he would be bound to act when they were formally presented to him by a voluntary prosecutor. It is impossible, therefore, to agree with Cicero when he speaks of this law as destroying the sanctity and effectiveness of the office ^. It democratised the censorship, but, in so doing, promised it a new and vigorous life, in recognising it as still the wholesomest expression for the public opinion of a free community. But a free democracy was not the gift in store for Rome : and Clodius was the last reformer that the Republic pro- duced. His law was lost in one of those conservative reactions that preceded the downfall of the senatorial government^. The censorship itself, the most republican because the most aristocratic of institutions, was soon to disappear before the new monarchy; but insensibly, and without external aid, it had done its work in defining the conception of infamia. As the praetor's edict was tending towards redaction, so the free life of the censorship was giving place to a code. It had long been the tendency of the office : for we find that, in the case of certain offences which involved ignominy, a permanent character had been ' Cie. pro Sest. 25, 55 '«t cenaoria notio et graviasimum judicium sanctissimi magistratua de republica toUeretur.' Cf. de Prov. Cons. 19, 46. ^ It was repealed by a Lex CaeaXia carried by Metellus Scipio in 52 b. c. (Dio Caas. xl. 57). III.] THE CENSORIAN INFAMIA. hi given to the rulings of the censors. This was the case with peijury^ with condemnation in a disgraceful suit^ and espe- cially with disgraceful professions, such as that of an actor was accounted ^. ' The precedent having been established that this disqualified for all civic honours, it was natural that it should continue to be respected, and thus we find how the censorian infamia came to assume in time a tralaticiary character that gives us the permanent categories in the Lex Julia Municipalis and in the Digest. Certain stand- ing ofiences came to be regarded as necessarily involving notatio, and as involving a notatio that the censors thought fit to make permanent ; and we should naturally expect that ofiences which were thought deserving of a permanent notatio would involve the most serious disquaUfication/ that of exclusion from all civic duties. It is possible, therefore, to say with Savigny, that there was a class of offences involving permanent disqualification, and that of the most severe kind, and we may perhaps with safety 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 ever, during the Repubhc, distinguished from the censoria notatio, cannot, as we have seen, be established from the evidence adduced. This permanent character secured by successive judg- ments could hardly have asserted itself without the use of written records. It has already been observed that the censors had many such records ready to hand : and we have now to notice the most important, because the fullest and perhaps the most permanent, of them, the censorian ' Cio. de Off. i. 13, 40 ' eos omnes ceusores, quoad quisque eorum vixit, quia pejerassent, in aerarios reliquerunt.' ^ Cic. pro Cluent. 42, 119 'turpi judicio damnati in perpetuum omni honore ac dignitate privantur.' ' Augustin. de civ. Dei, ii. 12 ; Tertull. de Spect. 22 ; see p. 34. ' Art. infamia in Smith's Diet, of Greek and Koman Antiquities (3rd ed.). 58 INFAMIA. [Ohap. Edict. The right of issuing commands in the form of Edicts {jus edicevdi), in connection with the spheres of administra- tion within their own departments, is common to all Roman magistrates, from the quaestor in his collection of the taxes to the consul in the higher branches of administration. All of these Edicts probably corresponded to one another in their general form — they contained commands, prohibitions, and advice : and it is needless to say, when we are dealing with Roman administration, that all of them were modelled on precedents. The differ- ences between them were simply those of more or less regularity and continuity. Some of them, such as those of the consuls and quaestors, were merely occasional, others, such as those of the praetors, curule aediles, and provincial governors, continuous [perpetua), and transmitted (trcda- ticia). We have every evidence that the censors' Edict belonged to this latter category, in so far as it was a regular preliminary to the exercise of their office. Our sources do not enable us to state with certainty whether each successive censorian Edict embodied, like the praetor's, all the rulings of his predecessors. What they show us is that the censor, when he meant to make a new departure, and to animadvert on certain evils which had hitherto escaped censure, mentioned these in his Edict and em- phasized their importance in the speech (oratio) which he delivered on the same occasion. But it is extremely probable that he preceded it with at least a general statement that he would hold as offences against custom and morals (praeter consuetudinem et morem tnojorum'^) all that had been so held by previous censors with certain exceptions (rare we may believe and mainly due to the change in legal obliga- ' 'Haeo nova, quae praeter consuetudinem ac morem majorum fiunt, neque placent, neque recta videntur ' : from the speech of the censors of 92 B. c. (Suet, de clar. rhet. i ; Gell. xv. 11, 2). III.] THE CENSOEIAN INFAMIA. 59 tions) which he chose to specify. And, although it can be only a matter of conjecture, it is equally probable that he enumerated in particular certain grave offences, which he would profess to deal with as they had been dealt with by past censors — those namely which have been mentioned as involving the severest disqualification, and which formed the fragment afterwards codified as the infamia of the Empire. Our actual information about the censors' Edict is as fragmentary and unsatisfactory as that about the censorian infamia itself ; but we can discover that it contained three elements: these being, fii-stly advice, secondly expressions of displeasure, and thirdly actual prohibitions. The advice given seems often to have been of a fatherly character, general directions for securing safety and happiness, and to have had no connection with the nota^. Exhortations to marriage were perhaps as common as any other form of this advice^. On the other hand, expressions of dis- pleasure, introduced by the words nobis nonplacere, directed against new and unhealthy customs, and actual prohibitions, such as those against forms of luxury lately introduced ^, would have had no meaning except they were meant to be followed up by the nota : and as in many cases it must have been difficult and would have been often unfair to enforce them by penalties at the census immediately fol- ' One of the Emperor Claudius' edicts contained the advice that ' nothing is so good for the bite of a snake as the sap of the yew-tree ' (Suet. Claud. i6). 2 It was in a censorian oratio that L. Caec. Metellus, censor 131 E. c, uttered his remarkable exhortation to marriage ; he urged the citizens to wed, and so show that they preferred the safety of the State to theii' own happiness, Gell. i. 6 ; Livy adds (Ep. 59) ' exstat oratio ejus, quam Augustus Caesar, quum de maritandis ordinibus ageret, velut in haec tempera scriptam, in senatu reoitavit.' For another censorian oratio see Gell. iv. 20. ' Many such are mentioned by Pliny, H. N. viii. 51 and 57 ; xi. 13 ; xiii. 3 ; xiv. 14 ; xxxvi. i. In his edicts the emperor Claudius inveighed against ' theatralis populi lascivia.' Tac. Ann. xi. 13. 6o INFAMIA. [Chap. lowing, they must have been meant as precedents to bind succeeding censors. The censors' edict was spoken of, with not more and not less propriety than that of the praetor, as a lex^. It was the viva vox, not of jus but of mores^, and the moral code, even when only partially written, was a happy mean between the State-enforced morality of the Greek law-giver and the fluctuating and ill-defined con- ceptions of modern public opinion. When we come to the special grounds of censorian censure, which were in the later Republic severally called by the singular name of opus censor ium^, but are more usually spoken of as probra*, we should wish to be able to trace historically the gradual development of moral conceptions exhibited by this censure, or rather, as the censorship was always regarded as a conservative institu- tion aiming at the preservation of an ideal mos majorum, of the gradually extending spheres of Roman life which forced greater activity on the censorship. But this would be to write the history of Roman morals, and their con- nection with dififerent epochs in the censorship could only be restored conjecturaUy, on account of the fragmentary nature of our authorities. It is obvious, however, that its sphere must have gradually increased with the increase of national immorality, if such a name can justly be given ' The censorian Edicts are called leges censoriae by Pliny (11. ec.) ; there is no reason to think with Mommsen (Staatsr. ii. p. 373, n. 2) that the expression was invented by this author. In popular phraseology they would naturally have been spoken of as 'ordinances'; and they could never have been confused with the leges censoriae proper, vrhere lex bore ■its old sense of contract. The pi-aetor's Edict was spoken of as lex anmut (Cio. in Terr. i. 42, 108). * Mareian speaks of thejits honorarium as viva mx juris civilis (Dig. i. 1, 8). " Gell. iv. 12 ; xiv. 7. It is probable that the expression was found by Gellius in his authorities ; the latter passage suggests its employment in the Commentarium of Varro. From its use by Gellius a man exposed to censure might be said opus censorium facere. * For probrum see pp. 4 and 18. III.] THE CBNSORIAN INFAMIA. 6l to the greater complexity in the relations of life which Imperialism necessarily forced on Rome. In the early period of its history we may agree with Lange in saying that it must have been mainly concerned with what we should call relations of private life. No developed com- munity has ever realised more keenly than Rome did, even in the later stages of her history, the truth that the State has its basis in the family ; and in the earlier times, when the family was the real unit, and individual rights as such were hardly recognised, this truth must have been still more keenly felt. We may well believe, therefore, that the evils affecting the position of the family, the neglect of the res familiares, questions of celibacy and divorce, misuse of the patria potestas and the rights of the patronus, neglect of the family sacra, prodigality and luxury were the matters that chiefly called in early times for the cognisance of the censors. Some writers have even at- tempted to go back beyond the history of the censorship, almost beyond that of the State, and have imagined that, in the old patrician community, some methods of animad- verting on such abuses were in the hands of the gens, an institution, which, as known to us in historic times, possesses hardly any corporate capacity at all. Even, however, if such were the case, it is highly improbable that the sanctions of such corporations could have had an effect on the exercise of the publica jura of the State, and therefore their activity, if even it existed, had no beariog on the history of the infamia. If we pass from the circle of the family, and examine the relations existing between independent members of the community, we find that many business relations had no sanction other than good faith (fides) — one therefore enforceable by no other power than that which regulated the civil honour of the State ; many of the rulings of the early censorship must 62, INFAMIA, [Chap. thus have been directed to the relations of private law : and in this respect the infamia of the Empire is no bad reflection of the earliest stages of the institution, since it was largely directed to the punishment of breaches of trust. Again the transition from the old pontifical jurisdiction with its religious penalties to the sanction of the criminal . law, must have left for a time an open space, to be filled up only by the infamia. The early censorship must in fact have been largely concerned in regulating by its sanctions the relations of private life in matters moral, civil or quasi- criminal. There is even good reason to believe that this always continued to be the main aspect of the office, although a disproportionate importance is given to its regulation of political functions by our historical authori- ties. Its later growth, as regards the control of private life, may be measured by the growth of analogous rules which we can trace : for instance, by the long succession of the sumptuary laws of RomCj which extend from the Lex Oppia of 315 B.C. to the close of the Republic^. The political evils entailed by the growth of Roman dominion, such as the corruption and misconduct of officials, which entailed disqualification pronounced either by the law or by the censors, are fuUy noticed by our authorities and will be made sufficiently apparent by the following sketch. It win be convenient to divide the instances of censorian severity which may be gathered from our texts under four heads : (i) those concerned with family life or the relations of private life ; (ii) a category closely akin to this of dis- qualifications following as the result of certain modes of life, trades, or professions ; (iii) instances of censure that ' The only sumptuary regulations known to us earlier than the Lex Oppia were those contained in the Twelve Tables limiting the expenses of funerals (Cie. de Leg. ii. 33). It is characteristic of the earlier period that the only expense which the law felt itself bound to check was one connected with a religious obligation. III.] THE CBNSOEIAN INF AMI A. 6^ followed political misconduct. All these instances fall under the head of what modern jurists, in dealing with the praetor's edict, have called immediate infamy. The (iv) fourth class of instances of infamia mediata — that following condemnation by ajudicial sentence — plays but a subordinate part in our authorities. (i) In considering the censor's control of private life, we must remember that the census was one of full heads of families {patresfamiliarum). Women and sons under power did not appear: the father answered all questions concerning them put by the censor. The father in his capacity as judge and magistrate of the household {judex domesticus, domesticus magisiratus) was responsible for its conduct \ Cicero indeed tells us that the reason why the Roman State never felt bound to appoint inspectors of women (mulieribus praefecti, yvvaiKov6ix.oi), such as existed in Greek constitutions, was that the woman was responsible to the man, the man to the censor^. So effective was this control that Dionysius, in a comparison between Athens, Sparta, and Rome, tells us that it was at Rome alone that the State ventured to intrude beyond the threshold of the household ^. He enumerates no less than seven modes in which this control was exercised, and his account may be verified and supplemented by references in other autho- rities. The slave was unprotected by the civil law, and until ' 'judex domesticus' (Sen. Controv. ii- 3) ; 'domesticus magistratus' (de Benef. iii. 11) ; cf. Liv. xxxiv. i (the agitation about the repeal of the Lex Oppia), 'matronae nulla nee auctoritate, nee verecundia, nee imperio mrorum contineri limine poterant.' ^ Cie. de Eepub. iv. 6, 16 ' Nee vero mulieribus praefectus praeponatur, qui apud Graecos creari solet ; sed sit censor, qui viros doceat moderari uxoribus.' lb. § 18, the word famosa occurs applied to a woman under the censure of the cognati. ' Dionys. xx. 13. The Spartan's home, he saya, was his castle, 'Fai/imot 51 vdcrav dvairfr&aavTes oiKiav, Kcd f^^XP^ '''^^ Saifiariov rfjf &.pxh^ twv ri^-qruiv irpoayayovreSj airdvTojv iTTolrjtTav enlatconov /tai See the instances in Tae. Ann. iv. 31, 8 ; xii. 59, 4. 2 Tac. Ann. xiv. 41, -i, where the case of Valerius Ponticus is described. Tacitus says ' additur senatus consulto, qui talem operam emptitasset Tendidissetve, perinde poena teneretur ac publico judicio calumniae condemnatus ' ; cf. Dig. xlviii. 16 (ad s. c. Turpillianum). 86 IKrAMIA. [Chap. through the quaestorship and the praefcorship, especially through the latter, for by the end of the fourth century a.d. the quaestorship tends to disappear, and dispensation must have been frequently granted by the Emperors from this useless magistracy^. The Emperor might still employ the adlectio ; but, in view of his actual control of the offices through which the Senate was entered, this was only necessary when he meant to dispense a candidate from the expenses of the praetorship. Such candidates of Caesar were adledi et immunes^. Entrance into the senatorial order, on the other hand, might be effected in a great many ways. The son of a darissiynus is prospectively a possible senator by birth ^; but his reception eyen into the order requires a formal professio, made when he has reached maturity*- It was, however, with entrance to the orderj even more than with admission to the actual Senate, that the Emperor's power of adlectio was concerned. Many modes were adopted by which the introduction of officials of a lower rank into the order of darissimi might be effected^; and in some cases this introduction was ac- companied by dispensation from the praetorship, and thereby by admission to the Senate as well. What the effect of this system was on the infamia in its application to the Senate is not very easy to determine. ' X^criTam (Le S^nat romain depuia Diocl^tien, p. lo) conjectures that candidates, who were able to pay the expenses of the praetorship, were probably dispensed from the quaestorship. ' Cod. Theod. Ti. 23, i. '' Symm. Ep. x. 66 ' his copvdati sunt quos senatui vestro reeens ortus adjeoit.' L^crivain shows (op. cit. p. 12) that ' senatui' here means only the order. * Such are the individuals mentioned by Symmachus as being added by the professio to the senatorial census. Symm. Ep. x. 67 'ut majestas vestra cognoscat quis in amplissimam curiam coUegarum numerus in- fluxerit, et quid censibus senatoriis aut nova professio incrementi dederit aufc exemptio vetus amputarit.' '' For these modes see Lecrivain op. cit. pp. 16-19. Ill-] THE OENSOEIAN INFAMIA. 87 The album of the Senate is kept by the prefect of the city, and it must have been the business of this official to keep the Emperor informed of any moral lapses on the part of members which rendered their expulsion desirable. But the system of exclusion was in some respects more rigid and definite than it had been in the earlier periods. It is hardly necessary to remark that Constantine's Edict, which excluded the infames from all dignities applied with special force to the Senate and to the order of the clarisdvii. The praetorian infamia, the history of which it will soon be our business to trace, had, in fact, through interpretation and extension by imperial constitutions, assumed the dimensions of a great and rigid system which could be so applied. But there are passages in the Theo- dosian Code which prove that general moral considerations were still taken into account, at least in the selection of senators^. There is little reason to doubt that similar considerations might lead to their exclusion from the order, of which they were already members : and we may therefore conclude that, besides the application of the systematized infamia, the Emperor exercises a notatio, , which was no doubt meant to involve permanent dis- ! qualification, although it was necessarily capable of reversal by his successor on the throne. ' Cod. Theod. ii. 17, 2 (Constantine a. d. 321) ' ita ut senatores apud gravitatis tuae ofBoium de suis moribus et honestate perdooeant.' lb. xii. 1. 74, 5 (Valentinian, Valens and Gratian A. D. 371), 'ceterum suae potestatis (as opposed to the curiales), et nullis per proTinoias functio- nibus obligatis, vel longae mllitiae labore vel proximis erga nos juvantibus codicillos senatorioa reportaverint, nisi vitiis aut actae vitae opprobriis amplissimo ordine deprehendantur indigni, indepti semel clarissimatus dignitatem perpetuo manebunt in ordine senatorum.' 88 INPAMIA. [Chap. § 3. The Censorian Infa/mia in its connection with the ' equites.' The constitution of the next class, the equites, demands a more particular examination, in connection with the censorian revision to which it was subjected, than need be accorded to the two other classes of the voting populace and the Senate. The reason is that the word eques itself varied considerably in its applications during the period of the Republic, and perhaps even in the time of the Empire ; and although it would be out of place to go minutely into the history of the Roman knights, some consideration of the various senses in which the word was used is necessary in order to guard against misconceptions as to the nature of the particular class which is mentioned as subject to this special scrutiny. The word equites was primarily applied to the citizen cavalry of 1,800 men, serving on horses supplied by the State. These formed the centurioLe equitum equo publico, which remained unaltered in num- bers at least until the time of Sulla, and in all essential respects unaltered in form to the close of the Republic. This body was the ordo equester in the strict sense of the words ^, but this title soon became extended beyond its proper bounds. Somewhere about the close of the fifth century B. c. — tradition puts the change at the time of the siege of Veil 403 B.C. — individuals not included in the eighteen centuries were admitted to serve as cavalry-men with their own horses [equo privato). A particular census was required from such individuals. They formed no ' The official terminology applicable to the order is known to us chiefly from inscriptions of the Empire. The full official title was eques Bomanus equo publico (Wilmanna, 2178, 2182), which was shortened, sometimes into eques Bomanus, sometimes into equo publico (Wilmanns, Index, p. 540), the latter expression being less usual and more technical than the former (Mommsen, Staatsr. iii. p. 480). Ill-] THE OENSOEIAN INFAMIA. 89 definite corps ; but, after they had proved their monetary qualification before the censor^, they were selected for service by the imperator. One of the consequences of this change may have been that the qualification required for these equites equo privato"^ was extended to the equites equo publico : although, since the latter had no doubt always been selected from the richer citizens, this was no great innovation. Another and far more important consequence was that the term eques, and even the expres- sion ordo equester, were transferred from the possessors of public horses, not only to those who served equo privato, but to all who had proved, by reference to the census, their right to serve in the cavalry at all. The term eques thus came loosely to denote anyone possessed of a certain census, which was subsequently fixed at 400,000 sesterces, and who was therefore potentially a knight^. When we bear in mind this extension of the term, we are not surprised to find the designation equites ' Polyb. vi. 42, 9 irKovrlySTjv avrwv ycyevTj fievrjs vir^ tov tiixtjtov ttjs efcXoyrjs. ' There seems to be no direct authority for the expression equites equo privato as an official title. Yet that those who served equo privato were called equites is undoubted. Belot (Histoire des chev. rom.) employs these words to describe the moneyed class created by this extension of service. Marquardt employs the convenient, but hardly authorized, expression equites censu to describe this class (Hist. eq. Rom. iii. 2). ' There is no direct authority for this particular census earlier than the Principate : unless we accept as such the conjectural filling up of the lacuna in the qualifications for the judices under the Lex Acilia Bepetun- darum (C. I. L. i. 198, 1. 16) ' facito utei CDL viros ita legat quei ha[ce civitate E8 CCCC n. plurisve census sief].' That the ' knights ' who sat on the juries were chosen by reference to a census is shown by Cicero (Phil, i. 8, 20 ' census praefiniebatur — in judice enim speetari et fortuna debet et dignitas '). Mispoulet (Inst. Rom. ii. p. 200) concludes from a passage of Livy (xxiv. 2) that no census existed for the equites in 214 b. c. The passage may perhaps be taken as an indication that no strict census then existed for the equites equo publico ; but it prbves nothing in respect to the other ' knights,' who at that time had none of the characteristics of a corporate body, and would not therefore have been mentioned in an official enumeration such as this. 90 INPAMIA. [Chap. applied to the important political class created by the Lex Judiciaria of C. Gracchus in 133 B.C. The main quali- fications of the Gracchan jurors, so far as they can be determined, were, that they should be possessed of the equestrian census, that they should not hold or have held certain public offices which were specified, that they should not be senators or men of senatorial family. These qualifications would, therefore, have excluded many of the equites equo publico, who were sons of senators: but the Judices would all have been equites in the wider sense of the word : and hence the civil class of equites was given something of a corporate character, and because of itself something approaching to an ordo. Such is the history of the equites so far as it can be traced with any certainty. The history of the order after this period can only be a matter of conjecture^. The important point to be borne in mind throughout, with reference to the censorian revision, is — that the only corporate body which the censor specially examines is that of the old centuriae equitum equo publico. The other knights appear as indi- viduals with the mass of the citizens ; the censor's only business with them is to admit them as ' knights ' by admitting that they possessed the requisite census. The censor, therefore, would not have revised specially such a class as that created by C. Gracchus ; it is equally improbable that he would have revised specially such ' The history of the order from the time of Sulla to the close of the Eepublic, and its constitution during that period, must rest largely on conjecture. The only certain point is that some of the constituent elements of the centuriae equitum in the later years of the Eepublic can be made out with a fair degree of accuracy. Such elements were the sons of senators, the mounted officers of the army — at least the tribuni militum — and perhaps also the members of the vigintivirate, who belonged to the latidami of the Empire ; these may have been enrolled as a matter of course in the equestrian centuries. A large portion of the body would have held this position simply as preparatory to a subsequent senatorial career. III.] THE OBNSOEIAN INPAMIA. 9 1 equites as those to which later leges Judiciariae gave wholly or partially the control of the law-courts. If we imagine that the equites to whom the Gracchan and other laws gave the courts were selected exclusively from the equites equo publico, this fact would indeed have given additional importance to the censorian revision of the equestrian centuries. It must have ceased to become a purely military revision, and the consideration of the mode in which the duties of this order had been performed in the courts of law must have been specially taken into account^. But if, as is more probable, by equites were ' Mommsen considers that tlie equites included in the album judimim created by the Lex Aurelia of 70 b. c. were the equites equo publico (Staatsr. iii. p. 486) ; and he takes the same view of the Lex Judieiaria of C. Gracchus. But the account of the Lex Aurelia in Schol. Bob. ad Cic. pro Placco, 2, 4 (' lex euim Aurelia judieiaria ita cavebat, ut ex parte tertia senatores judicarent, ex partibus duabus tribuni aerarii et equites, ejusdem scilicet ordinis viri '), compared with the passages of Cicero in which he identifies the equites and tribuni aerarii (pro Font. 12, 36 ; pro Cluent. 43, 121, 47, 130 ; pro Flacco, 38, 96) can best be understood if we imagine that by equites under this law were meant merely the possessors of the requisite monetary qualification. If we accept Belot's conjecture that the tribuni aerarii were the second class in the census, no sharp line could be drawn between them and the first class. To admit members of the highest census would be a political change, which would justify the importance attributed to the laws of Gracchus and Cotta by Cicero, and explain their known effects, especially in connection with provincial government. But this effect could scarcely have been produced by a mere admission from the equites equo publico, a, body which was losing in importance at this period, and was largely composed of men under senatorial age. The whole histoiy of the political contests that centred round the courts of law at this period prove that the contest was between the government, i. e. the senate, on the one hand, and the moneyed class on the other. It is true that in the letter of Q. Cicero, de Pet. Cons. (8, 33) the influence of the ordo equester (in the wider sense of the term) over the centuriae equitum is mentioned ; but this was an influence that could not be guaranteed to be perpetually effective. The mode in which the latter are spoken of, as yovmg men with no very definite political convictions, shows how inappropriate it would have been, from the standpoint of the anti-senatorial party, to entrust the courts of law to such hands. 93 INFAMIA., [Chap. simply meant all citizens of equestrian census — with certain restrictive conditions added by the Gracchan law, and perhaps by others — then the censorian supervision of the Judices, the importance of which we learn from Cicero's appeal in the ' Divinatio/ must have been conducted only as a part of the general scrutiny of the mass of citizens. We are met by precisely the same difficulty in connec- tion with the organization of the early Principate. The question arises whether, under this regiime as under that of the Republic, we have in the ordo equester a civil as well as a military class, or whether the only equites during the Empire were those serving equo publico. The balance of evidence is on the whole in favour of the existence of two orders during the reigns of the earliest emperors, and of the disappearance of one of these at a period corresponding to the close of Trajan's or the beginning of Hadrian s rule^ ■ Mommsen (Staatsr. iii. p. 489 ff.) thinks that all the equiies under the Empire tvere equites equo publico. According to this view the definition of an eques would be ' a citizen whose monetary qualification had been admitted, and who had sent in a request for an equus puUicus which the Emperor had granted.' Mispoulet (Inst. Bom. ii. p. 204) seems to minimise the importance of the imperial selection : but that the selection was of importance is clearly proved by such inscriptions as equAi publico honoratus (Wilm. 244, 2208, 2246 b), u, diva Sadriano equo publico honoratus (Wilm. 1825), equo publico exomatus ab Impp. Seven et Antonino Augg. (Wilm. I575)- The view of Mommsen has been combated by Willems (Le dr. publ. p. 385). To his arguments we may add that the usurpation of the gold ring by freedmen, which was repressed by Claudius (Suet. CI. 25) and Domitian, and the inspection in the theatre instituted by the latter (Martial, v. 8), can refer only to a civil order of equites ; these pretenders could scarcely have claimed to be equites equo publico : and again that Die Oassius, according to the probable interpretation of the passage which is given by Naudet (De la noblesse chez les Komains, p. 82) distinguishes the equites equo publico from ' the other ' equites (Dio, Ivi. 42, 01 re iiriteis, 01 Tc i« ToC TiKovs Kot 01 dWoi). On the whole we follow the view of Belot, who thinks that the equites were at the beginning of the Principate what they had been at the end of the Republic, i. e. the general class regulated by a census together with the close order of the equites equo publico, but believes that the order ended by becoming what it had been in origin, the corporation of the equites equo publico (Hist, des chev. rom. III-J THE OENSOEIAN INFAMIA. 93 The distinctioiij however, between the modes of revision of the two orders is of less importance under the Empire than under the Kepublic. The civil equites would no longer have been taken with the mass of the citizens. Even before the institution of the special imperial bureau a censihus, some commission with corresponding powers, such as those occasionally employed by Augustus, would no doubt have kept and constantly revised the list of both the equites and the equites equo publico, as long as these two classes existed side by side. The review of the knights (recognitio equitum) was during the Republic an integral part of the census, and is sometimes spoken of as the equitum, census^. It took place, however, not in the Campus Martius, where the concio of the citizens was summoned for assessment and scrutiny, but in the Forum ^, where most of the censorian business was transacted. The knights appear as a cor- ii. pp. 334 and 365). This view is probable and may be supported by the following evidence ; (i) the title quadrigenaritis which appears in later inscriptions as expressing the qualification for a judex seems distinct from equestrian rank ; compare (e. g.) L. Lucceio — judid CCCO selecto (Orelli 2357) and quin. decur. judi{cum) {inter) quatringenarios (Henzen, 6469) with judex decuriarum V equo publico per Trajanum (Wilm. ssg^), equo publico judex selecius ex V decuriis (Wilm. 2 no), equum publicum habens adlectus in V decurias (Wilm. 2203) ; (2) the gold ring became eventually a means of conferring, not equestrian rank, but ingenuitas merely (Dig. xxxviii. 2, 3 ; Justin. Novellae, 78) ; (3) the most probable intei-pretation of certain words of Gaius and Ulpian is that the monetary qualification was not alone sufficient to confer equestrian rank under the Antonine Emperors (Gaius in Dig. xxiv. 1, 42 ; Ulpian, Pragm. 7, 2). The change in the character of the equites may, therefore, be considered established, but there is no evidence to fix its date. It is not improbable, however, that it accom- panied Hadrian's reorganization of the bureaucracy. ' Eecoguitio equitum (Suet. Claud. 16) : so 'equitatum recoguoscere (Liv. xxxix. 44 ; Val. Max. ii. 9, 7) ; ' equitum turmas recognoscere ' (Suet. Aug. 38) ; ' equitum census ' (Cic. pro Cluent. 48, 134 ; Liv. xxix. 37 ; Gell. iv. 20) ; so ' equites recensere (Liv. xxxviii. 28 ; xliii. 16 ; Suet. Vesp. 9). 2 Plut. Pomp. 22. 94 INFAMIA. [Chap. porate body, and, while the censor reads the list of names ' each member of the corps is summoned in turn by the herald's voice ^ before the tribunal. They appear, like the other citizens, in the order of their tribes, and each knight files past in turn, leading his horse by the bridle, and waits before the magistrates to hear the words of praise or blame. It was, in the first place, a military scrutiny ; the attention of the censors was first directed to the question whether they could claim their discharge. In the earliest times of the Republic, when the knights were the active citizen cavalry at Rome, there was an evident incompatibility between the possession of a public horse and a seat in the senate: — later this incompatibility was not felt, and in the year 304 B. c. we find that both censors were them- selves equites^. But again, towards the close of the second century, the rule was enforced by law that a man who entered the Senate must cease to be an eques *, and to quit the centuries he had to ' enumerate each of the generals and commanders under whom he had served, to submit to an examination of his conduct, and thus be released from the service ® '. When further we remember that, at least as late as the period of the Gracchi, military service, in the camp or the province, was a necessary qualification for a magis- tracy, and that this service, which for the cavalry was ten ' Suet. Calig. 16 ' eorum, qui minore culpa tenerentur, nominibus modo in recitatione praeteritis.' Lange (E6m. Alt. i. 584) takes this of the redtatio of the album equitum which closed the procedure. The list, however, must have been read by the censors during the recognitio : and it is improbable that it was read a second time, especially in the time of the Empire when enormous numbers took part in the procession. ^ Val. Max. ii. 9, 7 ; Varro ap. Non. p. 61. ' Liv. xxix. 37. * Cic. de Eepub. iv. a 'nimis multis jam stulte hanc utilitatem toUi cupientibus, qui novam largitionem quaerunt aliquo plebiscite redden- dorum equorum.' ° Plut. Pomp. 22. III.] THE CENSOEIAN INFAMIA. 95 years, had to be proved before the censors^, we see how the military discharge granted by these ofBcials became of political importance. No doubt, as a rule, this missio honesta had to be granted, if the eques proved his case : but the censors claimed and exercised the right of not allowing past service to count, and even, while taking away the public horse, of demanding renewed cavalry service at the rider's own expense ^. It is one of the cases in which infamia almost becomes a penal measure. More important, however, and more significant of the censorian power than this enforced retention in the service, is the ignominious dismissal from the centuries before the term of service was completed. As this was primarily a military revision, we find certain special grounds of censure such as the uncared-for condition of the horse {ini-politia^), determining its rider's removal from the ranks, or at least prohibiting his receiving any further assistance from the State for its support*- But every ground of censure which could be based on any moral taint is as applicable to the knight as to the commoner, and even more so, since the standard of existimatio is in the former case higher than in the latter. To dismiss a knight from the centuries was often felt to be too slight a penalty, and it was often, perhaps usually, combined ' Plut. C. Gracch. 2. This qualification was abolished in the later Kepuhlio. The stipendia, which were one of the qualifications for muni- cipal magistracies, might be sei-ved in caslris inve provincia (Lex Julia Municip. 1. 100). ' liiv. xxvii. II (209 B.C.). '(Censores) addiderunt acerbitati (i.e. the deprivation of the public horse) etiam tempus, no praeterita stipendia proderent iis, quae equo publico emeruerant, sed dena stipendia equis privatis facerent.' It resembles in principle the arbitrary increase of taxation of an aerarius (Liv. iv. 24) or of a caelebs (Val. Max. ii. 9, i). ^ Gell. iv. 12 ' si quis eques Eomanus equum habere gracilentum aut parum nitidum visus erat " impolitiae " notabatur.' * Festus, p. 108, 'impolitias censores facere dicebantur, cum equiti aes abnegabant ob equum male curatum.' 96 INFAMIA. [Chap. ■with removal from the tribe or relegation to the aerarii. After the knight had appeared before the tribunal, if the censors desired him to remain in the centuries, they told him to lead his horse on (traduc equum'^) ; when they judged him unworthy to remain, they bade him sell his horse (veTide equum ^). Removal from the ranks of the knights is generally expressed by reference to the deprivation of the public horse ^. Since the main object of the revision was the military efficiency of the corps, bodily unfitness for further service was naturally a ground for dismissal. It was equally naturally not a ground for censure, and counted, with the retirement from service consequent on a completion of the requisite campaigns, as a missio honesta *- The final duty of the censors was the filling up of the places thus left vacant. Fresh knights were recruited from the ranks of the infantry (pedites), either at the censors' own discretion, or, if we suppose that at any period of the Republic a fixed census was required for members of the centuriae equitv/m, with reference to such monetary qualification. The corps of the equites equo publico continued on into the Empire, and on a vastly extended scale. During the earlier Principate the censorship was occasionally resumed, yet even at this period the conferment of the public horse at the discretion of the princeps was probably not unknown ', * Cic. pro Cluent. 48, 134 ; Val. Max. iv. 1, 10. ' Liv. xxix. 37 ; xlv. 15. ' Adimere equum, Liv. xxiv. 18 ; xli. 27 ; xlii. 10, &c. * Gell. vii. 22 'nimis pingui homini et corpulento censores equum adimere solitos — non enim poena id fuit, ut quidam existimant ; aed munus sine iguominia remittebatur.' For ' ignomiuia ' as applied to dis- missal from the centuries, see Suet. Calig. 16 ; Claud. 16 (' sine ignominia dimisit'). The missio in the case mentioned by Gellius is parallel to the 'missio causaria, quae propter valetudinem laboribus mllitiae solvit' (XJlpian in Dig. iii. 2, 2). " The passage in Suet. (Tib. 41) where it is stated that Tiberius became HI.] THE CENSOR! AN INF AMI A. 97 and thus the centuries might be recruited even when there was no ofEcial census. But where censors are found, as under Augustus, or where Emperors themselves undertake this office, as Claudius and Vespasian, the selection and elimina- tion of equites must have followed the same rules as those which characterised the Republican revision 1. The old censorian principles of infamia were followed in these cases ^, and these principles were of greater importance now that the corps d'^lite of the later Republic was rapidly becoming the civil service staff of the imperial administration. But the censorship was only an occasional office under the Empire, and the equites equo publico, already a large class under Augustus, became stiU larger when the principle was recognised that there was no other mode of attaining equestrian rank, and gaining admission to the official career which depended on it, than by receiving the gift of the public horse from the Emperor ^. We are not therefore surprised to find a permanent bureau established which had the duties of admission to the ranks of this order as one of its special functions. This bureau, which was also, concerned with the necessarily less frequent requests for admission into the Senate, appears to have been a branch of the department of petitions (a libellis *} : so careless 'ut postea non decurias equitum xinquam supplerit,' cannot be taken as an evidence : since when the equites are spoken of as judices at this period, we do not know what knights are referred to. ' It has been thought that the revision of knights described in Suet. Claud. 16 ; Vesp. 9 refers to the censorships of these Emperors. It may, however, refer to the proceedings at the pompa. ' Suet. Claud. 16. ' When Strabo (iii. 5, 3, p. 169) says that as the result of a census 500 knights {TrevTaKoffiovs dvSpas Tifii]0ivras iiririicov^) were recognised at Gades, and as many at Patavium in Italy, he is speaking of a time when there was more than one mode of admission to equestrian rank. We cannot assume, therefore, that this great number of municipal knights consisted all of equites equo publico. * A censihus a libeliisAug. (Wilm. 1249 b), a libellis et censibus (Wilm. 1257), H 98 INFAMIA. [chap. and although the primary duties of its members were those of admission, yet they must also have kept a watch over the maintenance of the qualifications requisite for the re- tention of rank in an order. They would probably have pointed out to the princeps the cases in which either the money or the character qualification had ceased to exist, and many a knight would probably have found himself removed from the corps, without the open disgi-ace of being deprived of his public horse at the annual procession. The revision at this annual procession can only be regarded as supplementary to that of the standing bureau, from the time that these two institutions existed side by side. This third mode of revision has, like the second, no parallel in the time of the Republic. It was then a simple pageant which was witnessed on the Ides of July, when the knights passed on horseback — 'From Castor in the Forum to Mars without the wall,' to celebrate the help given by the Twin Brethren at the battle of the Lake Regillus. This pageant, which had fallen into disuse in the later Republic, was revived by Augustus : and the procession of the knights {transvecUo equitum) became to some extent a revision of the order {prohatio equitum)''-. It differed from the recognitio equitum of the Republic in that the knights now passed a censibus equitum romanorum (Wilm. 1275, C. I. L. x. 6657), which Wilmanns interprets as though it were a censibvs acdpiendis eepiiies romanos, but it clearly refers to the department a UbeUis, and Mommsen is no doubt right in saying that this one mention of the knights is a proof that their requests for admission were the most frequent which the bureau had to consider. Greek equivalents IttI K^vaov toC Sf/SaffroO (C. I. 6r. 3497), lirJ mjvaov (C. I. Gr. 3751). ' Suet. Aug. 38 'Equitum txirmas frequenter recognovit, post longam intercapedinem reducto more transvectionis.' When Suetonius adds ' sed neque detrahi quemquam in transvehendo ab accusatore passus est (quod fieri solebat) ' he seems to be confusing the recognitio with the transeeMo of the Republic. III.] THE CENSOEIAN INPAMIA. 99 sitting on horseback, and in the far greater numbers which appeared in the procession ; we are told that on one occasion as many as five thousand knights took part in the pompa before Augustus i. The niissio which the censors had granted in the earlier period of the Eepublic was now no longer necessary — nor indeed attainable. The position of an eques was now one that was held for life : and except that the career ended for a member of the order with his entrance into the Senate (for the standing incompatibility of the positions of eques and senator, recognised in the later Republic, had now been emphasized by the still more divergent careers of the two orders), exemption from the formal duties of an eques equo publico was the exception rather than the rule. As a means of meeting demands for retirement from this tiresome official duty, Augustus, besides making unavoidable concessions to those whose physical infirmities prevented them from riding, finally permitted all members above the age of thirty-five to return their public horse and thus retire from the corps ^. But the censure was directed nearly in the same manner as in the Republican recognitio ; the knights were ques- tioned one by one, and made to give an account of their conduct^ ; those whose answers were unsatisfactory were visited with ignominia, which in its severest form could hardly have gone further than the deprivation of the public horse*. This probatio of the equites was no doubt ' Dionys. vi. 13. ^ Suet Aug. 38 ' . . . et senio vel aliqua corporis labe insignibus permlsit, praemisso in ordine equo, ad respondendum, quoties citarentur, pedibus venire ; mox reddendi equi gratiam fecit eis, qui majores annorum quinque et triginta retinere eum noUent.' " The words quoted from Suet. (Aug. 38, on the preced. page) seem to imply that the accusation by a third party, not unusual though not necessary in the time of the Republic, was dispensed with by Augustus. ' Suet. Aug. 39. • TJnumqnemque equitum rationem vitae reddere co(5git ; atque ex improbatis alios poena, alios ignominia notavit ; plures H 3 lOO INFAMIA. [chap. regarded by Augustus as a serious part of the duties of the State ; it is shown by the fact that more than once he asked the Senate for committees, either of three members or of ten, to assist him in the work^. There can be little doubt, therefore, of the seriousness of the infamia thus publicly pronounced. The pompa is found recurring under subsequent Emperors, it is mentioned in connection with the reigns of Caligula, Nero, Vitellius, and Severus Alexander^, and the existence of it can be traced as late as the fourth century A. D.^ But its importance, as a means of producing infamia, must probably have diminished after the institu- tion of the permanent bureau, which had as one of its duties the census of the knights*- With the close of the Principate we have come to an end of the history of the equites, as a great adminis- trative order of the Empire. The knights disappear with the dyarchy. Under the monarchical rule of Constantine and his successors, which made the assignment of all func- tions and the title of each branch of nobility depend immediately on the sovereign, there was no motive for keeping the equestrian career entirely distinct from the admonitione, sed varia.' (The poena here must have been an increase of service or burdens parallel to those penalties inflicted by the censors of the Republic : see p. 95.) Suet. Calig. 16, ' palam adempto equo, quibus aut probri aliquid aut ignominiae inesset.' Of. Ov. Trist. ii. 541. ' Suet. Aug. 37 ' triumviratum legendi senatus, et alterum recogno- scendi turmas equitum, quotiescunque opus esset.' Cap. 39, 'impetratisque a senatu decern adjutoribus.' These commissions are brought into relation with the pompae by Suetonius. It is possible, however, that they may have acted on other occasions. ' Caligula (Suet. Calig. 16) ; Nero (Dio Cass. Ixiii. 13) ; Vitellius' regulations about the equites (Tac. Hist. ii. 62) probably have reference to the transvectio ; a similar reference is perhaps implied in the words of Lampridius (Alex. Sev. 15) '(senatum et) equestrem ordinem purgavit.' ' Zosimus, ii. 29. ' With reference to purely military offences the penalty of loss of standing could of course be pronounced at once. Dig. xlix. 16 (de re mil.) 5, r ' qui in pace desemit, eques gradu pellendus est.' III.] THE CENSOEIAN INFAMIA. 101 senatorial. By a curious revolution of history the title equ'ites is again restricted to a definite urban organisation. We have seen that the review of the knights still persists in the fourth century A. D., and a constitution of this period still calls that body the second order in the Empire^. They, therefore, still exist as a corporation, but a corporation found mainly in the two capitals, Rome and Constantinople^, the members of which are registered, under Constantine, before the prefect of the watch. That a city prefect, not of the highest rank, should deal with the civil honour of members of this order shows the little distinction it enjoyed : and this is still further shown by an examination of the class, which still perpetuated to some extent the functions and dignities of the old eques- trian order. In the third century two titles are borne by the eqtdtes, those of egregius and perfectissimus. The title egregius disappears during the later Empire ; but a class of functionaries of inferior rank to the clarissivii is still designated by the title perfectissivii. Imperial constitutions show that vir perfectissimus is now quite distinct from eques^: and the perfectissimatus denotes a class composed of very different elements, connected only by a common title of nobility, and created by the Emperor, which bears a shadowy resemblance to the equestrian order, composed as this was in the later Principate of functionaries of different rank, connected only by the gift of the public horse. Like the list of the ' Cod. Theod. vi. 36, i (Valentinian and Valens 364 a. d ) ' equites Romani, quos seeundi gradus in urbe omnium obtinere volumua digni- tatem ex indigenis Romanis et civibus eligantur, vel his peregrinis, quos corporatis non oportet annecti.' ^ The title appears to have been occasionally given to provincial corporations, e.g. to the navicularii, supposed in this case to be those of Africa (Cod. Theod. xiii. 5, 16 ; Gratian, Valentinian and Theodosius a.d. 379). = Cod. Theod. vi. 36 and 37 (the distinct titles dealing with the distinct orders) : cf. the constitution cited in the next note. loa INFAMIA, [chap. equites, that of the perfectissimi is made out by an urban functionary, apparently by the vicar of one of the city prefects^. In concluding this review of the infamia, regarded as a branch of public law, some distinctions are suggested between its operation in the Kepublic and in the Empire. During the EepubUc the civic privileges possessed by the ordinary citizen, especially the right of voting, were of more importance, and were therefore carefully regulated by the State. In the Principate the populus had sunk into comparative unimportance, and the cura Tnorum of the princeps, which is not so much a definite function attaching to his office as one arising naturally from the other administrative duties in which he is engaged, was concerned, more exclusively than in the Republic, in preserving the purity of the two higher orders, the Senate and the equites^. Once, indeed, during the later Principate we find the censorship restored. In the year 351 A.D., during the reign of Decius, an attempt was made to call the old institution into new life. The duty of election was entrusted to the Senate, and the acclamations of the fathers made Valerian guardian of their own morals and of those of the community. But the prudence of Valerian was proof against the committal of a blunder and an anachron- ism. ' Do not call me,' he said to the Emperor, ' to pro- nounce judgment on the people, the soldiers, the Senate, the world; it is for this task that you bear the name Augustus. With you the censorship rests, no mere citizen ' Cod. Theod. ii. 17, 2 (Constantine a. d. 321), 2 'ita ut senatores apud gravitatis tuae officium de suis moribus et honestate perdoceant, perfec- tissimi apud vicariam praefecturam ' (? ' vicarius praefeoturae urbis,' an office which we know existed under Constantine, C. I. L. vi. n. 1704 ; Mommsen, Mem. del Instit. ii. 309-311), 'equites Bomani et ceteri apud praefectum vigilum, navicularii apud praefectum annouae.' ^ So of Severus Alexander (a. d. 222-235) '^^ are told ' senatum et equestrem ordinem purgavifc ' (Vit. Alex. 15}. III.] THE OENSOEIAN INPAMIA. 103 can fill it^.' The Empire which succeeded the Principate, showed equal anxiety, though in a less discriminating way, to maintain the dignity of the orders of nobility which it created. The definite infamia, developed from the praetor's Edict, came in time to involve exclusion from all honours and dignities. How early this result was reached we cannot say with certainty. In the time of Hadi-ian and the early Antonine Emperors infamia is often mentioned as debarring from special posts : but the references to exclusion at this period look rather as though it was based on special grounds applicable to special cases. Once indeed we find a regulation, dating from the reigns of Severus and Antoninus, unimportant in itself but of great interest as one of the earliest instances known of exclusion from ofiice being based on the infamia of the praetor's Edict. A rescript of these Emperors declared that no one could be a legatus, or accredited representative of a municipal town, who had not the Jus postulandi, that is, apparently, who belonged to the second class named by the praetor, the in turpitudine notabiles, who had no right of postulating for others ^- The obvious necessity for such a regulation in the case of a legatus, and the very fact that a rescript was required to create or confirm the disability, show that legislation on this subject was occa- sional and dictated by the necessity of meeting particular contingencies as they arose. Again, the hesitating manner in which Marcian, writing probably under Antoninus (Caracalla), speaks of infamia as a bar to the exercise of ' Vita Valerianonim, 5 & 6. ^ Marcian in Dig. 1. 7, 5 (4), i, ' sed et eos quibus jus postulandi non est legatione fungi non posse et ideo harena missum non jure legatum esse missum divi Severus et Antoninus rescripserunt.' The reference seems to be to the class in the second Edict 'de postulando' (Dig. iii. 1. I, s), although it is doubtful whether gladiators occurred, in the second Edict with iestiarii, or in the third Edict with actors (see p. 121). 104 INPAMIA. [Chap. the important office of assessor, or recognised legal assistant to a judge or provincial governor^, shows that there was no definite rule of exclusion recognised at this period^. We have, in fact, no certain knowledge of the universal application of the infamia for this purpose earlier than the regulation of Constantino, which has been so frequently referred to in this work as marking an epoch in the history of Civil Honour. The history of the ordines, which has here been sketched, is but another proof of the old lesson that the truest type of aristocracy is to be found in Republican governments. Caesar, the great iconoclast, knew that he was breaking the spirit of the Eepublic when he flooded the Senate with men of low and foreign birth, and caused admission to nobility to depend on the will of the princeps alone. In his reaction against this policy, as in his other institutions, Augustus restored the Republic. But Caesar's was the policy of the Empire, not of the Principate. As it was Caesar that designed the plan of crippling Roman law by codifying it in its infancy, — a consummation for which the world was only prepared six centuries later, — so it was he who first suggested the great distinction which we observe between the orders of nobility as they existed respectively under the Republic and under the Empire of Constantine. But nearly four centuries were required before the Roman world was fit for the realisation of even this portion of the plans of the over-hasty dictator : and meanwhile the conservatism of Augustus had given the ' Marcian in Dig. i. 22, 2 'liberti adsidere possunt. Infames autem licet non prohibeantur legibus adsidere, attamen arbitror, ut aliquo quoque deereto principali refertur constitutum, non posse officio adsessoris fungi.' " One of the grounds of the praetor's infamia— ignominious dismissal from the army — excluded from honores in the Antonine period, Cod. xii. 35 (36), 3. III.] THE CENSOEIAN INFAMIA. 1 05 nations a dignified administration and their golden age of peace. Constantine and Ms successors created an artificial aristocracy: and one, therefore, that was based on personal standing rather than on birth. In the later Empire there were many rounds in the ladder of promo- tion, but the transition from the lowest to the highest ranks in the State was easier than it had been either in the Republic or in the Principate, because it depended more fully on the will of the Emperor. 'We have laid stress,' says a careful student of the Byzantine organi- sation^ ' on the arbitrary nature of the imperial selection, in showing how deeply the Emperors dipped into the middle and lower classes ; but then they attach almost all these new comers to the Senate ; they ennoble them. One need not see in this the evil intention of drowning the ancient aristocracy in these foreign elements ; it was rather an homage to, and a mark of confidence in, the Senate, which regains its legitimate place in the govern- ment and in the palace.' But it was a thoroughly artificial hierarchy, and the artificial mode of exclusion represented by the codified infamia was eminently suited to such a nobility. §4. Effects of the Censorian Infainia. The primary efiect of the censorian infamia was always a disqualification for certain public rights. The 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^j the knight was forced to give up his position in ' L^crivain, op. cit. p.. 37. 2 Val. Max. ii. 9, 2. 106 INFAMIA. [Chap. the equestrian centuries^, and the commoner was removed from the tribe {trihu Tnoveri) or made an aerariua {aerarius fieri, relinqui). This final disqualification, the only one applicable to the whole citizen community, will require a more detailed examination, due not only to its importance, but to the fact that there are few more controverted points in the history of the infamia than the precise meaning of relegation to the aerarii. The theory as to the meaning of this word aerarius which seems to have gained most general acceptance in recent times is that of Mommsen ; it is a theory which depends on the assumption that in the earliest times the tribes at Rome were strictly local, in the sense that possession of land was the only means of obtaining membership of a tribe. Aerarius, according to this view, is opposed to trihulis. The trihulis was the land-holder (assiduus), who was taxed on his holding and required to "bear arms ; the aerarii were the non-assidui who were taxed on their personal property. Originally, therefore, the word implied exclusion from the tribes : and if the censor, at this epoch, made a man an aerarius, he deprived him of his vote and of his right of service in the legions. But, according to Mommsen, a complete change in the word resulted, in the year 312 B.C., as a consequence of innovations which were then introduced in the structure of the tribes. Appius the censor divorced the tribes from land, and gave the landless citizens, the aerarii, a place in these divisions ^. The censor henceforth assigned the tribe for each individual : and the necessary consequence of this change was that the aerarii as such vanished, and with it the censor's right of excluding individuals from the comitia and from the army. The final change occurred in 304 B.C., during the censorship of L. Fabius and P. Decius. ' Li*^. xxix. 37, 9. ' Diodor. xx. 46 ; Liv. ix 46. III.J THE CENSOEIAN INPAMIA. 107 In this year a compromise was adopted between those who maintained landed and those who upheld personal rights. For the more aristocratic country tribes the principle of membership recognised before the time of the censor Appius continued in force. His innovation remained valid only for the four city tribes, into which the landless citizens were now distributed!; and, consequently, it is thought that the principle established by Appius continued to be recognised ; that is, that the censor could no longer deprive a man wholly of his tribe, which meant deprivation of his vote^. From this time the freedman and the notcdus had a tribe. But the censor could still strike out of the land tribes and relegate to the tribes of the landless citizens using the old formula of relegation to the aerarii hut in a different sense. Relegation to the aerarii henceforth meant only relegation from a higher to a lower tribe, and in this sense brought with it no material dfsadvantages either as regards taxation or military service^. There are many serious objections to this theory, even if we admit that the slender evidence, on which the sup- posed great change of the year 312 B.C. rests, can bear this interpretation*. Firstly, it makes a curiously unmeaning pleonasm of the juxtaposition of words which we constantly ' Liv. I. c. ' Liv. xlv. 15. ^ Momiusen, Staatsr. ii. 392 sq. ; 402 sq. * The passages of Diodorus (xx. 46) (App. Claudius as censor 312 b. c.) eSajK€ Tois TToXtTOis oTToi wpoapoiVTo rtfJL-rjaaaOaL, and of Livy (ix. 46) 'forenaia factio App. Claudi censura Tires nacta, qui . . . humilibus per omnea tribus divisia forum et campuiu corrupit,' need in themselves imply nothing more than the conception of people, who had already been in some tribes, being spread over others, as understood by Lange (EOm. Alt. p. 381). Similarly, the event of 304 (Liv. 1. c.) ' aliud integer _populus . . . aliud forensis factio tendebat . . . Fabius aimul concordiae cauaa, simul ne humillimorum in manu comitia essent, omnem forensem turbam excretam in quattuor tribua conjecit urbanaaque eas appellavit,' is interpreted by Lange (1. c.) as a replacement of the forensis factio in the triius urbanae. I08 INFAMIA. [Chap. find in Livy when this censorian procedure is described ; the expression tribu movere et aerarium facere ought to signify two distinct acts^. Secondly, the assertion that is made that after 31a B.C. the principle was strictly observed that the censor could not deprive a citizen of his vote is by no means borne out by the passage of Livy usually quoted to support it^. The mere assertion of a member of the Claudian house, which always furnished the radical leaders of Rome, that no one could be deprived of his vote without the consent of the people, is by no means worthy to be elevated into a principle of Roman constitutional law; and we know that in the case of one class, that of actors, the principle of exclusion from the tribe was con- sistently observed. As they were forbidden to serve in the legions there is little doubt that they were also de- prived of their vote. Thirdly, there is the incident of the censor of 204 B.C. who remitted to the aerarii (aerarios reliquit) thirty-four out of the thirty-five tribes for an alleged misuse of their voting power ^. This censor evidently meant to disfranchise the voting community in some way, and relegation to the urban tribes is here out of the question. Fourthly, the theory that we have dis- cussed concerning the meaning of the word aerarius can only be framed by going off the direct line of evidence ; ' Liv. xlv. 15 'omnes iidem ab utroque et tribu remoti et aerarii facti'; xliv. i6 'tribu quoque is motus et aerarius factus'; xxyii. ii ; iv. 24 ; xxix. 37 'aerarios reliquit'; Cic. de Orat ii. 64, 260 ; pro Cluent. 45, 126. Gell. iv. 12 & 20 ' in aerarios retulit,' ' relatusque in aerarios.' In one passage of Livy (xxiv. 18) the order is reversed, ' ea supra duo millia nominum in aerarios relata, tribuque omnes moti'; for the probable reason of this, see note 3 on next page. A similar reversal of the order is found in Liv. xlii. 10. To elevate from the aerarii is ' ex aerariis eximere ' (Cic. de Orat. ii. 66, 268). ' Liv. xlv. 15. The passages quoted by Belot (i. p. 201) to support this view (Cic. pro Domo, 29 & 30, pro Balbo, 11 ; pro Caecina, 33, 35) are not to the point, since they refer to caput, ^ Liv. xxix. 37. in.] THE CENSOEIAN INFAMIA. 109 the only definition of aerarius which we possess refers, not to the tribes but to the centuries ^ It is to the organi- sation of the comitia centuriata that Belot^ has rightly- looked in his account of this disqualification, and we may accept his conclusions with some modifications. The aerarii were the capite censi ; they were not included amongst the citizens of the five classes, but were infra classem. Thus, as Belot says, the action of the censor Livius in 204 B.C., since it occurred after the reforma- tion of the comitia centuriata, would have reduced this assembly to the ten centuries (five seniores and five juniores) of the tribe Maecia, the only one exempted from relega- tion to the aerarii. This view is borne out by other passages in Livy, which are best understood by considering that aeranus refers only to the centuriate organisation^. What then, we may ask, was the full disability implied in the expression ' they were removed from the tribe and relegated to the aerarii' 1 We know that removal from the tribe was used to signify mere relegation by the censor from the higher rustic to the lower urban tribes*- But this would hardly be a penalty corresponding to removal from the centuries, unless we suppose that a century of jjroletarii, composed of the capite censi or aerarii, still voted in the ' Ps. Asc. in Divin. p. 103 (Orelli) ' regendis moribus eivitatis censores quinto quoque anno creari solebant. Hi prorsus cives sic notabant ; nt, qui senator esset, ejieeretur senatu ; qui eques Romanus, equum publicum perderet ; qui plebeius, in Caeritum tabulas referretur et aerarius fieret, ac per hoc non esset in albo centuriae suae, sed ad hoc [non] esset civis, tantummodo ut pro capite sue tributi nomine aera praeberet.' ' Hist, des chev. Rom. p. 200 sq. ' Thus in Liv. xxiv. 18, in aerarios relata is put first to bring it into closer connection with ex juniorum tabuhs excerpserunt preceding. Belot remax-ks (I.e.) that, in the case of the man whom the censors ' octupli- cato(que) censu aerarium fecerunt ' (Liv. iv. 24), the census of this aeranus was made equal to that of a member of the first class (12,500 asses raised to 100,000 asses according to the figures given by Diouysius, iv. 17). * Liv. xlv. IS ; Dionys. xix. 18 ; Plin. H. N. xviii. 3, 13. no INFAMIA. [Chap. reformed comitia centuriata^. It is possible, therefore, that in the later Eepublic 'removal from the tribe' was used in two senses, and that when the expression tribu movere et aerarium facere is found, the first two words mean total exclusion from the tribe, the last two total exclusion from the centuries. This second disqualification would have entailed exclusion from the legions, as long as the soldiers were selected from the classes, and before Marius introduced the custom of enlistment from the capite censi^- The removal from the tribe, whether in the milder or in the severer form was usually the work of the censor: it seems, however, that it might be made the consequence of criminal laws, amongst the other disqualifications which such laws enjoined, even where loss of caput was not one of these consequences ^. The censor's power of removal from the tribe might also be limited by a provision of statute law, as it is by the Lex Acilia Repetundarum*. It can hardly be doubted that by the removal mentioned in such documents the severer kind of disqualification, entailing loss of the suffrage, is meant. The question has been raised whether a man who had been made an aerarius, and who was therefore presumably also tribu motus in the sense of total exclusion from the tribe, still possessed what is sometimes called the jus ' As is supposed by Willems, le Droit publ. rom. p. 90 ; a view that is supported by Cic. de Eepub. ii. 22. 2 Sail. Jug. 86. ^ If the Lex Acilia is earlier than the Lex Servilia we do not know what penalty followed a eonviction for Sepetundae at the time the law was passed : but removal from the tribe appe^irs to have been one of its consequences : 1. 77. (Amongst the rewards given to successful prosecu- tors under this law) [in quam tribum, qmijus is nomen ex h. I. detokrit, sufra- gium Merit, in earn tribum sufragiuPjVa ferunto inque eam tribum censento.' * Lex Acilia Bep. 1. 28 ' . . . gjuei pequniam ex [h. 1] capiat, eum ob eam rem, quod pequniam ex h. 1. ceper[ft, nei . . . neive tribu mo]veto, neive equom adimito, neive quid ei 06 eam rem fraudei esto.' III.] THE CBNSOEIAN INFAMIA. in honorum, and preserved the right to stand for a magistracy at Eome. Cicero tells us that the censorian ignominia was no bar, so far as statute-law was concerned, to standing for a magistracy ^ ; but this statement, besides being ren- dered doubtful, like all Cicero's assertions about the censor- ship, by the context in which it occurs, is of little value on this point ; the censorian ignominia is so wide a term, and could be used without the connotation of its severest form, total exclusion from the tribes and from the centuries. There are, however, many instances of those notati by the censors being elected to magistracies, and in fact it became the usual mode of regaining a lost seat in the Senate after the time of Sulla ^, although there is no certain instance known of a man's reaching office, when the nota had made him an aerariws, and while this 7iota lasted. But, strange as the theory seems which permits a man who had been deprived of his vote to stand for a magistracy, its possibility can hardly be doubted. It is one of the anomalies of Eoman constitutional law which is most easily explained. It rests on the fact that the censor had control over admission to the tribes, but none over admission to the honores. The magistrate who presided at election to office might no doubt exercise the right of rejecting anyone suffering from the censoria notatio, but it was a right exercised at his own discretion. We have dwelt at some length on this severest of all the disqualifications which the censor claimed the right to ' Cic. pro Cluent. 43, 120. ^ " See the instances collected by Mommsen (Staatsr. i. p. 521, n. 3) ; C. Hostilius Mancinus, cons. 137 E. c, took the praetorship for this purpose (Cic. de Orat. i. 40, 181 ; Dig. 1. 7, 18) ; P. Lentulus Sura, praetor, 76; eons. 71 ; removed from senate, 70; assumed the praetorship again, 63 (Plut. Cic. 17 ; Veil. ii. 34 ; Dio, xxxvii. 30) ; Sallust, quaestor, then tribune, 52 ; removed from senate, 50 ; quaestor again to return to the senate (Decl. in Sail. 6 ; Dio, xl. 63, xlii. 52) ; in the latter passage of Dio arpaTriyds is a mistake. 113 INFAMIA. impose, because it probably gives us the key to the deve- loped conception of infamia which we shall soon proceed to examine. "We are not surprised to find this extreme disqualification spoken of, however improperly, as a capitis minutio, or to find that certain actions which were held by the censors necessarily to involve it, are described by Cicero as ' summae existimationis et paene dicam capitis ^.' 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 in the equestrian centuries, but be relegated to the position of aerarii ^. And it is extremely probable, as has already been stated, that certain ofiences, by whomsoever they were committed, came to be considered as necessarily involving this relegation, and in the case of such ofiences 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 which 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. We shall soon see that it was applied to a far different purpose by the praetor in his Edict, and that this application attained a develop- ment which was destined to alter the whole character of the infamia. ' See p. 26. ' Lix. xliv. 16 ; Val. Max. ii. 9, 7. CHAPTER IV. THE PRAETORIAN INFAMIA AND ITS DEVELOPMENTS. We now turn to the infamia as it is known to us in its final stage, that of its codification. It contains the disqualifications recognised in the processes of civil law, and is known to us from the excerpts which we have of the praetor's Edict in the Digest. Although the final form of this conception of infamia was assumed in the Empire — at the latest at the time of Julian's redaction of the Edict in the reign of Hadrian ^ — yet its beginnings stretch back into the Republic, how far back is one of the questions which we shall have to answer. It must not, however, be supposed that the categories of the Edict exhaust the infamia of the Empire. We shall find many cases which are not in the Edict as it has been pre- served to us. It is not, however, fair to assume, as has been done by some modern jurists, that all such cases were created posterior to the redaction of the Edict. Such an assumption ignores the fact that more than one kind of infamia was in working during the Empire as during the Republic, and that exclusion from the Senate and from the equestrian order still went on, perhaps in a progressive spirit. Some of these cases never crept into the Edictum perpetuum at all. But on the whole, most ' Further developments, ao far as the Edict was concerned, were in the way of elimination, not of addition. I 1 14 INPAMIA, [Chap. cases that we find in the legal books of Justinian, which are not in the Edict, may be with probability held to have been created subsequently to its redaction and to have been due to juristic interpretation. The earliest titles of the Edictwm perpetuum as con- solidated by Salvius Julianus, dealt with the preliminaries of legal procedure : amongst others with the forms of legal request made by parties to an action before the praetor. Such legal requests made pro tribunali were from early times called postulations (postulationes), perhaps, as E-udorff suggests, because they chiefly had their origin in the Judicis arbitrive postulatio of the legis actio''-. It was in connection with such postulation that infamia was treated by the praetor. The only object of the praetorian infamia was to preserve the dignity of the praetor's court ^, and to prevent the frequent appearance in it of unworthy mem- bers of the community. Indiscriminate postulation was, therefore, only permitted to an integra persona, who, as the technical phrase ran, 'was allowed by the Edict to postulate ' {cui per edictum postulare licet) '. The question naturally arises 'What was the connection between this praetorian and the censorian infamia which has just been treated 1 ' Two alternative suppositions are possible as to their connection : one that they were pursued inde- pendently of one another, the other that the praetorian was based on the censorian. The second alternative must be preferred on many grounds, (i) From the general nature ' Zeitschr. f. Eechtsgesch. iv. p. 45. Postulation is defined by Ulpian as ' desiderium suum vel amici sui in jure apud eum, qui jurisdictioni praeest, exponere : Tel alterius desiderio contradieere.' ' 'dignitatis tuendae et decoris sui causa' (Dig. iii. 1, i). ' Paulus in Dig. xlvii. 23, 4 'Popularis actio integrae personae per- mittitur, hoc est cui per edictum postulare licet.' Ulpian in Dig. i. 16, 9 (the proconsul ought) eosque solos pati postulare, quibus per edictum ejus postulare permittitur.' IV.] THE PRAETORIAN INFAMIA. 115 of the case. Since the only ohject of the praetorian infamia was to preserve the dignity of the praetor's court, it seems inevitable 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 disgi-aced by unworthy acts or oc- cupations. As regards the cases specified, there is precisely the correspondence between the two lists which we should expect, if the praetor's had been borrowed from the censor's. It is shorter, it deals only with the most aggravated cases, it is wholly non-political. We have already attempted to show that the censor's infamia was much more largely concerned with civil actions than has generally been sup- posed. It is these civil actions that come most prominently before us in the Edict, as was natural in a court of civil law. (ii) Procuratory, or representation by others, was unknown in the system of the legis actiones^ or only recognised in certain very exceptional cases ^. Now the praetor's list of infamous persons is a list of persons who are limited in postulation for others. Postulation for others has little meaning apart from representation by a cognitor or procurator, so that it is difficult to see how a developed conception of the infamia, applicable to civil process, could have originated before the introduction of the formulary system, perhaps as late as the beginning of the second century B.c.^ At this time there must have been a fully developed conception of the grounds of censorian disquali- fication, and that the praetor should not have availed himself of it is inconceivable, (iii) If any weight is to be attached to the language in which the praetorian infamia ' Gai. iv. 82. ^ Under the system of procedure per legis actiones procuratory wag allowed onlj pro populo, pro liberfate, ot pro tutda (Justin. Inst. iv. 10 "i. 3 The date of the Lex Aebutia is wholly uncertain. It seems generally to be placed between the dates 150 and 250 B. c. I a £i6 INFAMIA. [Chap. is described, by the praetor himself^, and by the com- mentators, it is at once manifest that it is borrowed from the censorian procedure — more especially is this the case with the words nota, notare, notati. To speak of a nota in connection with the censor, who affixes a mark to individual names is a strictly accurate mode of speaking ; it is not strictly applicable to the praetor who only makes out a general list of cases : and is evidently an expression borrowed from the censorian infamia, when a portion of that conception was taken up by the praetor for his own uses. But (iv) we possess a very valuable connecting link between the censor's and the praetor's use of the conception in the Lex Julia Municipcdis, which is a codification of the most permanent portion of the censorian infamia, the cases codified being employed as the basis for disqualifica- tion for the position of a senator in a municipal town. So similar are the grounds of disqualification in this law and in the Edict, that Rudorff has with some success used Caesar's Local Government Act as a means for reconstruct- ing this portion of the Edict as it must have existed at the close of the Republic and in the early Empire, before some of its clauses became antiquated by changes in law and in social life introduced subsequently to its redaction by Julian^. This is possible enough, but that the clauses of Caesar's law were borrowed from the praetor's Edict of his day is highly improbable. It is a case of concurrence, not of adaptation ^. We cannot go so far as Savigny and say ' Dig. iii. 2, i ' Praetoris verba dicunt " Infamia notatur qui &c." ' For the terminology employed to describe the infamia, see above, p. 4. ' Kudorff in Zeitschr. f. Eechtsgeseh. iv. ('Die ProzeaserOffnung nach dem Edict'), p. 45 (' Postulation und Advocatur'). ' Similar regulations borrowed from the censorship were no doubt to be found in the Lex Pompeia of the Asiatic provinces ; Plin. ad Traj. 113 (115) 'eadem lege sanoitur quibus de causls e senatu a censoribua ojiciautur.' IV.] THE PRAETORIAN INFAMIA. I 1 7 that these cases, which disqualified from the municipal Senates, would at Rome always have disqualified from the right of voting as well, nor can we even say with Mommsen that they would invariably have disqualified for offices at Rome : for, so far as we can judge, their use in this respect would have depended on the discretion of officials, at least as far as the majority of the grounds of exclusion are con- cerned 1. It is in fact the earliest codification — at least the earliest known to us — of the principles usually recognised by the censors. The censorian infamia was adapted to this purpose by Caesar, as it had been adapted to the purpose of civil process by the praetor. With respect to postulation, the praetor framed three rules which were expressed in three edicts. These edicts had reference to three distinct classes of individuals. The fii'st class was composed of those not able to postulate for themselves at all : this prohibition being directed with reference to age or physical infirmity of a certain kind. Boys under seventeen fell under it, and those who were so deaf as to be unable to hear the praetor's rulings. Advocacy was, therefore, necessary in these cases, and if the parties couM not furnish a representative, the praetor gave one^. The second class was composed of those able to postulate only for themselves. This prohibition was directed with reference to sex, physical infirmity, and gross moral turpitude. Under it fell women, the blind, and those who were in turpitudine notabiles. From the instances given by Ulpian, which led to the adoption of the rule in the first two cases, it seems clear that the motive of it was the dignity of the praetor's court ^- ' The cases of special disqualifications pronounced by criminal laws must always be excepted. ^ ' Ait praetor ," Si non habebunt advocatum, ego dabo." ' ' The rule was adopted somewhat late. The Carfania of the Digest who made herself so objectionable in the praetor's court and gave rise J 1 8 INI'AMIA. [Chap. But of course they were both sharply distinguished from the remaining category of in turpitudine notabUes, which furnished illustrations of the extreme limit of infamia'. The third class contained those who were able to postulate for themselves, and only in exceptional cases for others. In this third class were included omnes qui edicto prae- toris ut infames notantur'^. It is on this third Edict de postulando that we must fix our attention, if we would estimate rightly the connection between infamia and the working of the praetor's court. The mention of the infames comes before us mainly in three portions of the legal books of Justinian : first, in the title dealing with postulation {de poktulando), where the mention of the limitation of postulation of the infames is made ^ : secondly in the title immediately following it, de his qui notantur infamia''', where a detailed list of the infames is given ; thirdly, in a supplementary title of the Codex of Justinian, ex quibus causis infamia irrogatur ^. It is the first two of these passages that contain the verbal extracts from the praetor's Edict, on which any attempt to reconstruct the Edict must depend. It is very evident that the order of the Edict is not followed in the Digest, and this is probably due not to the compilers but to the commentators themselves. The most remarkable fact to the principle Eudorff identifies with Gaia Afrania (died 49 or 48 b. c), wife of the senator Licinius Buoco. Val. Max. viii. 3, 2 ; Juv. ii. 69 (Zeitsohr. f. E. G. iv. p. 47). The incident of the exclusion of the blind belongs, he thinks, to Caesar's time (ib.). For the Roman sentiment about women appearing in court he compares Plutarch, comp. Lye. c. Num. 4, XeyfToi yovv voT( yvvcuKiis e'nrovcfrjs SiKr/v iSiav iv dyopa irc^^ai t^i» avyKKrjTov tls 6iov, nvuOavofievijVj t'ipos dpa t§ irvXei ffTjfiftov (tjj t6 yeyevrjfuevou. ' This distinction is made in the language of Ulpian (Dig. iii. 1, 5) 'in quo edicto excepit praetor sexum et casum, item notavit personas in turpitudine notabiles.' ' Dig. iii. 1. I, 8. ' Dig. iii. 1, i. * Dig. iii. 2. ' Cod. ii. 11 (^12) 'de causis, ex quibus infamia alicui inrogatur.' IV.J THE PEAETOKIAN INFAMIA. J19 that strikes a reader of these titles, is that while most of the praetor's tertium edidum is excerpted from the commentators, mainly from the sixth book of Ulpian's commentary to the Edict, the list of the infumes is not. It bears on it the strange superscription, Julianus lihro pnmo ad edictum, a heading which must be wrong in any case, since Julian's redaction of the Edict was, so far as we know, not divided into books, but was only one short book divided into rubricated titles ^ Still the fact of the list of the infumes being taken from Julian shows that it was not excerpted, in the form in which it stood in the Edict, by the commentators, but only referred to generally by them. It was important, ia the compilation, to have this detailed list, and consequently it was excerpted from the edictwm perpetuum of Julian. This portion of the third Edict, therefore, ran as follows (the words of the commentators being in italics): 'Ait praetor: "Qui lege, plebis scito, senatus consulto, edicto (i. e. the praetor's Edict as referring to persons other ' It would be rash to follow Eudorif in reading 'TJlpianus libro vi ad edictum ' for Julianus libro I ad edictum : since it is impossible to see why the error should have crept into this one paragraph of the title. The view of Karlowa (Zeitschr. f. K. Or. ix. p. 208) that the edictal list of the infames was not in the tertium edictum de postidando, but only a reference to it, contained in the words ' qui . . . edicto . . . nisi pro certis personis postulare prohibentvir,' seems disproved by two facts ; (i) that the list of the worst infames (the in turpitudinc notabUes) was certainly in the second Edict, and summed up by Ulpian in the sixth book of his commentary : and (ii) there is no other possible place in the Edict where this list of infames could have come. The general conclusion reached above is practically that of Rudorff, but based on more general grounds, his detailed arguments being unconvincing. He bases it on the refer- ences by the commentators to the list of infames as being in this Edict. But these references can be explained, if there was a mere mention of the infames, as being (amongst others) limited in postulation, and not the detailed list of these persons. The view stated above differs from that of Rudorff in the belief that the compilers did not excerpt a detailed list of the infames from any of the commentators : probably because they could not find it there. I30 INFAMIA. than the infames) decreto principum nisi pro cei'tis personis postulare prohibentur : hi pro alio, quam pro quo licebit, in jure apud me ne postulent. Hoc edicto continentur etiam alii omnes qui edicto praetoris (i.e. the tralaticiary Edict) ut infames notantur."' (From the Sixth book of Ulpian's commentary to the Edict.) [The last clause, ' Hoc edicto . . . ut infames notantur,' is taken by Mommsen, Karlowa, and Lenel, as a remark of Ulpian's, not as the words of the praetor. But they are probably words of the Edict ; the first ' edicto ' referring, not to the infatnes, but to persons similarly limited in postulation for other reasons.] 'Praetoris verba dicunt: "Infamia notatur qui,'" &c. ; then follows the detailed list of the infames (taken from Julian's redaction). 'Beinde adicit praetor: "Qui ex his omnibus, qui supra scripti sunt, in integrum restitutus non erit." ' (From the sixth book of Ulpian's commentary to the Edict.) As will be seen from these words of the praetors, and from the commentators, the limitations on postulation mentioned in the third Edict affected persons other than the infames, just as the severer limitations in the second Edict were not confined to those in turpitvdine notabiles. But with these other persons we have no concern, and we may fix our attention on the infames of two grades mentioned in these categories, and consider the grounds and the civil-law efiects of this developed conception of infamia. The fact that the treatment of the grounds of this praetorian infamia will occupy a far larger space than the discussion devoted to the grounds of the censorian, must not be taken as a proof of the greater importance of the former in history. It is simply due to the accident of the greater wealth of evidence in the one case than in the other, and to the circumstance that it is only when we IV.] THE PRAETORIAN INFAMIA, I3J reach this stage of codification that intricate questions of civil law arise which require detailed treatment. The disproportionate nature of the evidence for the two stages of the infamia has been a misfortune as tending to give a false idea of their relative importance. The cases of infamia, that are divided into two sections in the praetor's Edict, naturally fall all together in the Lex Julia Municipalis. Although they involved the same degree of political, they involved two degrees of civil, disqualification. The edictwni secundum, in the list it gives of those who cannot postulate for others at all, contains the following instances of immediate infamia. (i) ' Qui corpore suo muliebria passus est ^.' (ii) Those who have hired out their services to fight with wild beasts. The Lex Julia Municipalis contains, as a parallel case, the acting as a training-master (lanista), and the hiring of one's self as a gladiator^. This case would naturally have disappeared from the Edict, after the abolition of gladiatorial shows ; but Rudoiff would add it to the Edict, as it existed in the time of Hadrian^. It is doubtful, however, whether it would have been contained in this second Edict or in the thii-d *. As cases of mediate infamia it specifies — (iii) Condemnation on a capital charge ^. ' This ■was repressed by a Lex Smntinia in the time of the Republic : but was a constantly growing evil in the time of the Empire. An attempt was made to repress it by an energetic Edict of Constantino (Cod. ix. 9, 30 (31) ). It is paralleled in the L. J. M. by ' queive corpore quaestum fecit fecerit.' ' ' Queive lanistaturam . . . fecit fecerit, queive depugnandei eaussa auc- toratus est erit fuit fuerit.' 3 Zeitschr. f. R. G. iv. p. 48. ' Lenel, Das Edictum perpetuum, p. 64. Bestiarii must always have been classed lower than lanistae or gladiatores. = Edict — ' qui capitali crimine damnatus est.' L. J. M. ' queive judicio publico Romae condemnatus est erit, quo circa eum in Italia esse non liceat, ncque in integium restitutas est erit.' 1 33 INFAMIA. [Ohap. (iv) Apparently false accusation (calumnia) in an ordi- nary criminal court [judicium publicum). This case is peculiarly difficult in its occurrence under this head, since apparently the same case was specified in the third Edict'^. There is, however, a difference of statement in the two cases : and it may answer to the two diflferent kinds of criminal procedure by which calumnia was decided. Calu7nnia,-we know, was taken cognisance of by a law, the Zex Remmia^, which ordained a poena legitima ; the trial in this case being one different from that in which the calumnia had taken place, although generally before the same Judge*; in this case the calumniator might be said to be calumniae damnatus, and under these circumstances was entirely restricted from postulation. But, on the other hand, it is probable that calumnia, as assimilated to praevaricatio, might be decided extra ordinem in the course of the trial. This might be the case when the falsely accused brought no formal counter-charge of calumnia, but it had been decided on the motion of the judge during the trial (in judicio publico). In this case condemnation was followed only by a partial limitation of postulation *. ^ XJlpian says, with reference to tlie second Edict, 'item senatus consulto etiam apud judioes pedaneos postulare prohlbetur calumniae publiui judicii damnatus (Dig. iii. 1, 6). In the third edict we find ' qui in judicio publico caltminiae praevaricationisve causa quid fecisse judi- catus erit ' (Dig. iii. 2, i). ^ The punishment enjoined by the Lex Bemmia — the branding with the letter K — became antiquated, perhaps as early as the time of Trajan (Kein, Criminalrecht, p. 8ii), the other provisions of the law seem to have been in force until a late period of the Empire (,Dig. xlviii. 16, i, 2 and 3 ; xxii. 5, 13). " Dig. xlviii. 1. c. * This procedure extra ordinem was probably much more usual than that under the Lex Bemmia. How closely connected calumnia and prae- varicatio were is shown by the words in the third Edict, by the parallel passage in the Lex Julia Municipaiis and by Macer in Dig. (xlvii. 15, 4) ' Si is, de cujus calumnia agi prohibetur, praevaricator in causa judicii publici pronuntiatus sit, infamis erit.' IV .J THE PEAETOEIAN INPAMIA. 123 The third Edict contained the following cases of immediate infamia. (v) Ignominious dismissal of a soldier from the army^. Besides the actual punishments inflicted for breaches of military discipline, three subordinate penalties were recog- nised; these were change of service {riiilitiae mutatio), degradation from one i"ank to another {gradus dejectio), and ignominious dismissal from the service (ignominiosa missio ^). Such dismissal might be pronounced by the com- mander-in-chief — in later times the Emperor — or by any one to whom he had delegated his authority, and apparently at his own discretion, since no particular class of offences is mentioned as necessarily involving this degradation. Since there were many kinds of missio — the honesta, for instance, following the completion of military service or a fiction of this completion granted by the Emperor, and the causaria granted on grounds of ill-health — the assertion by the commander that it was ignominious (ignominiae causa se mittere) was necessary in order that it should entail infamia in accordance with the praetor's Edict (ex edicto praetoris) ^. It is evident, therefore, that this case does not quite correspond to others of immediate infamia, since it does not follow on a course of action merely, but on one recognised by a judgment. The judgment, however, is not a legal sentence, and since the infamia is here recognised as the result of a matter of fact, it may be fairly brought under this category. The ignominious dismissal is here ^ Edict : ' qui ab exereitu ignominiae causa ab imperatore eove, cui de ea re statuendi poteatas fuerit, dismissus erit.' L. J. M. ' quoive aput exercitum ingnominiae caussa ordo ademptus eat erit ; quemve imperator ingnominiae cauaaa ab exereitu decedere jusit juaerit.' " Dig. xlix. 16 {de re militari\ 3, j.. ' Ulpian in Dig. iii. 2, 2 ; Macer in Dig. xlix. 16, 13 ; the exauctoratio of the Empire, i. e. the deprivation of the insignia militaria, waa accounted ignominious diamiasal, and followed by infamia (Ulpian 1. c). J 24 INPAMIA. [chap. mentioned merely in connection with the purposes of the Edict. But throughout the history of Rome it involved other more serious disqualifications. In Caesar's municipal law it is made a bar to being a member of a local Senate ; in the Empire such persons lost all the specific civil privileges of soldiers {jus militiae'^) and were forbidden to live at Rome, and apparently in any place where the Emperor was residing ^. (vi) Dishonourable trades or professions are next men- tioned: and amongst these the profession of an actor; any one who has appeared on the stage {scaena), for the purpose of exhibiting himself, is declared infamis by the Edict ^. The history of this disquahfication has already been sketched, and it only remains to describe the legal interpretation put upon this prohibition by the classical jurists. As regards the main point, what constituted a stage, Ulpian quotes Labeo's definition, that it was any place to which the public was admitted, and where one exhibited one's self, in whatever manner, for their amuse- ment*. But, with the growing taste for acting, a rule based on this rigorous definition could not possibly be permanent; and we find that even the rival schools of Proculians and Sabinians agi-eed that the question of payment was the crucial one in determining this infamia. This was the view even of the Proculians '. The Sabinians ' Dig. xxix. 1, 26. ' Dig. xlix. 16, 13, 3 ' neque Bomae neque in sacro comitatu agere potest ' ; hence excused from ' urbica tutela' (Dig. xxvii. 1, 8, 9) : cf. Cod. xii. 35 (36), 3. ^ Edict : 'qui artis iudicrae pronuntiandive causa in seaenam prodierit'; L. J. M. ' queiye . . . artemve ludicram fecit fecerit.' * 'Scaena est, ut Labeo definit, quae ludomm faciendorum causa quolibet loco, ubi quis consistat moveaturque spectaculum sui praebiturus, posita sit in publico priyatoque vel in vico ' (Dig. iii. 2. u, 5). " ' Eos enim, qui quaestus causa in certamina descendunt et omnes propter praemium in seaenam prodeuntes famosos esse Pegasus et Nerva fiUus responderunt ' (Dig. 1. c). IV.] THE PRAETORIAN INF AMI A. 125 went further, and exempted athletes, whose motive was honour {virtus) rather than money, from this category; and the exemption extended to other classes who occupied a dignified position at shows and games, which had been elevated by the abolition of gladiatorial combats. Ulpian mentions among such the musicians of the orchestra {thy- melici), the athletes of the portico (xystici), the chariot- drivers {agitatores), and those who tended the horses after the race {qui aquain equis spargunt). All these, as well as the umpires at the games (designatores, ^pa^iVTaLY were free from ignominia, as performing a service {ministenwm) recognised by the princeps : and the spirit of this interpre- tation accords with the privileges conferred on athletes in later times by imperial rescript ^. (vii) Immediate infamia also attached to one qui lenoci- nium fecerit^, whether this trade was exercised directly or indirectly* ; the stigma even attached to the freedman, who had exercised it during a condition of slavery. (viii) The next case of infamia ensuing on a matter of fact is peculiarly interesting as being one of the latest survivals of the old pontifical law that for so long a period had the censorian notation as its sanction. It relates to the rules of mourning {Luctus) at Rome. These rules had originally been very complicated : and the religious law ' In the Lex Julia Munidpalis disqualification from local magistracies (lionores) attaches to those 'quei praeconium diasignationem libitinamve faciet,' as long as they pursue these callings ('dum eorum quid faciet'). ' Designator ' here may mean a man who shows people to their seats in the theatre (Plant. Poen. prol. 19) : it can hardly have its meaning of undertaker, as this is contained in the last words. ^ As by that of Diocletian and Maximian (de athletis) Cod. x. 54 (53). ^ L. J. M. ' queive lenociniuni faciet.' * Dig. iii. 2, 4, 2. In the case of the lenocinium created by the Lex Julia de adulteriis (Dig. xlyiii. 5, 22) infamia in respect to the man 'qui de adulterio uxoris suae quid ceperit, item in eum, qui in adulterio depreliensam retinuerit,' was mediate, following on condemnation. 126 INFAMU. [chap. had prescribed the kind and the length of mourning to be observed for relatives, with reference both to the degree of kinship and the age at which they had died'. These rules had been gradually mitigated both by custom and by law: and it is probable that the Christian Empire abolished all the pontifical rules about the external signs of mourning, if indeed they had not sunk into desuetude earlier than the time of Constantine. The only rule of the kind which is found in the praetor's Edict, in the abbreviated form which it assumes in the Digest, relates to the year of mourning (annus ludus) prescribed for widows after the death of their husbands. There can be little doubt — even though it has been denied by the great authority of Savigny — that this 'year of mourning' had originally a religious or at least a moral significance. It was meant to satisfy the conventions of mores, meant also perhaps to appease the manes of the deceased husband. But from early times it had also a more practical signi- ficancCj and was prescribed as a means of avoiding doubt- fulness of paternity (turbatio sanguinis). It was possibly only in this form that it was taken cognizance of by the praetor, at the time of the redaction of the Edict : it was certainly the only meaning it had at the time of the legislation of Justinian when this excerpt from the Edict was introduced into the Pandects. The infamia following a breach of these rules would naturally be expected to attach primarily to the woman who violates them : and that such a one was in/amis we shall see when we come to consider this conception in its connection with women. But the praetor's third Edict de postulando could take no cognisance of women, who only appear in the second, and ai'e prohibited absolutely from postulation for others. In ' On this question — ^perhaps the one that has raised most controversy in the whole history of the Infamia — see Appendix, note i. IV.J THE PRAETORIAN INEAMIA. 127 this catalogue of the infames, therefore, the men only appear, who are in any degree directly responsible for the violation of the period of mourning. The infamia falls on (i) the father of the widow, if she is under his power, when he has given her in marriage within the given time, ' although he was aware that his former step-son had died at such and such a time, within which time the period of mourning should run^'. (ii) On a man sm juris who marries a widow during this period, in case that he acted with knowledge of the circumstances {sciens). He must know the fact, ignorance of the law being no excuse. If, however, he was not sui juris, and only acted on the commands of one, under whose power he was, he escaped infamia, and escaped it even when, on emancipation, he retained the wife so wedded. On the other hand the man, in whose power he stood, incurred it, if he had ordered or, with knowledge of the circumstances, tolerated the marriage ^- To the question as to what should happen in the case of one who had not permitted this union, but had ratified it after it had been accomplished, Ulpian answers that he wiU not be marked with infamy, because the spirit of the Edict was only to look at the moment at which the marriage had been contracted ^- (ix) The last case of immediate infamy mentioned in the Edict resembles the preceding in that it deals with marriage. A man was in/amis who in his own name {svx) ' ' Qui earn, quae in potestate ejus esset, genero mortuo, cum eum mortuum [tuni] esse sciret, intra id tempus, quo elugere virum moris est antequam virum elugeret, in matrimohium collocaverit.' The inser- tion of ' turn ' in this passage, suggested by Karlowa, though not essential to the meaning, is rendered probable by the similar reading of the Frag- menta Vaticana (Zeitschr. f. R. G. ix. p. 235). ' 'Qui eum, quem in potestate haberet, earn, de qua supra comprehen- sum est, uxorem ducere passus fuerit.' See Dig. iii. 2, 11-13. ' Dig. ii. 3, 13 ' praetor enim ad initiura nuptiarum se rettulit.' 1 28 INFAMIA. [Chap. nomine) and not acting at the commands of another in whose power he was, committed bigamy, or entered into betrothal with two women at once. Infamia may also be imagined to have fallen on the woman guilty of the same offence, but it could not be mentioned in this Edict which dealt only with men. The same stigma attached to the individual, in whose power the man or the woman was, and who consciously forwarded such double marriage or double sponsalia''^- Under the same category, according to the meaning of the Edict (ex sententia edicti), Ulpian tells us, was put the man, who, when betrothed to one woman, was married to another, or when married to one was betrothed to another. Bigamy was amply provided for by the criminal law of Rome, and it was not so much the effect in this case as the intention that was con- sidered^. So much was this the case that legal disabilities to marriage were no bar to the infamia. If a man was improperly betrothed to a woman whom he could not marry he was none the less visited with the stigma. (x) We now turn to the cases of infamia mediata mentioned in the Edict : foremost amongst them comes condemnation for calumnia and praevaricatio in the course of an ordinary trial ^ (in judicio publico, in causa judicii publici). Calv/mnia in this connection has been already discussed : it involved the disqualifications mentioned in the third Edict when the procedure dealing with it was assimilated to that usual in praevaricatio. As calumnia ' 'Quive suo nomine non jussu ejus in cujus potestate esset, ejuave nomine quern quamve in potestate haberet bina sponsalia binasve nuptias in eodem tempore constitutas habuerit.' ' Eodem tempore,' as TJlpian tells us, is to be understood as ' concurrently ' : cf. Cod. v. 5, ■^. ^ Cod. ix. 9, i8 ' non juris effectus . . . sed animi destinatio cogitatur.' •< Edict 'qui in judicio publico calumniae praevaricationisve causa quid fecisse judicatus erit' (cf. Dig. xlvii. 15, 4 ' in causa judicii publici') ; L. J. M. ' quemve k(alumniae) praeyaricationis caussa accussasse fecisseve quod judicatum est erit.' IV.] THE PEABTOEIAN INFAMIA. 1 29 consisted in bringing false charges {falsa crimina in- tendere), so praevaricatio consisted in concealing ti-ue charges {vera crimina abseonderey. The large part these offences play in the history of Civil Honour at Rome is to be explained by the absence of public prosecution, which involved a greater necessity of guarding against malicious or negligent impeachment than would be necessary in a state where such an institution existed. Praevaricatio was declared to exist in cases ' where the accuser concealed or suppressed true evidence against the accused, or passed lightly over the main evidence, or did not call important witnesses, or so challenged the jury as to leave only the most corruptible^.' There was never any separate law imposing penalties for prevarication nor any separate court in which it could be tried ; it was always, therefore, a cognitio extraordinaria, and was punished by a poena extraordinaria^, although by the Senatus consultum Turpillianum the penalty was so far fixed that it was assimilated to that of condemnation for calumnia in a Judicium publicum,*- The procedure re- mained throughout the same. When an accused had been acquitted through praevaricatio, he might be put on his trial again, but the new trial must commence by an accusation of the previous accuser for praevaricatio : after condemnation in this case, the original trial proceeded'. '■ Dig. xlviii. 16, i, i. In the praetor's Edict, and in the Lex Julia Municipalis, praevaricatio must be taken as covering what was afterwards called tergiversoMo, the offence of ' in universum ab accusatione desistere ' (Dig. 1. c). The S. C. l^rpiUianum covered both (Tac. Ann. xiv. 41 ; Dig. 1. 2, 6, 3). Tergiversatio in the Empire was followed by infamia 'quam veteres jusserant sanctiones' (Cod. ix. ii, i). It is doubtful whether this infamia was immediate, following merely on the abandon- ment of the trial, or whether this abandonment had to be noted by a judex. ^ Rein, Criminalrecht, p. 801. ^ Dig. xlvii. 15, i and 2. * Tac. Ann. xiv. 41. ° Rein, Criminalrecht, p. 801. K 130 INPAMIA. [Chap. This procedure was ratified by the Lex Julia judiciorv/m puhlicorwrri^, and thus the offence of praevaricatio was always decided in causa judicii publici. The infamia could only follow condemnation in the regular form ^ : in all these cases of mediate infamia the sentence must be pronounced causa cognita. A mere remark of interroga- tory addressed by the judge to the parties in the action, whatever belief it might express, was not sufficient to produce infamia^. (xi) The Edict next takes cognisance of certain private delicts: theft (furtwm), robbery (vi bona rapta), injury (injuriae), and fraud (dolus malus); and much the same category is mentioned in the Lex Julia Municipalis as producing the disqualifications there in question*. It was only certain private delicts, in which a civil judgment adverse to the defendant necessarily involved disgrace ; these are the famosae actiones. But the incidence of the infamia was not in these cases avoided by compromise (pactio). Compromise in the case of private delicts was tantamount to condemnation and entailed the same con- sequences ^- To this rule, however, there were two limita- tions. The words of Ulpian show that the arrangement here meant must be a monetary one ^ : the defendant was, therefore, not marked, if the plaintifi" gave up the action * Dig. xlvii. 15, 3, I ' Cavetur lege Julia publicorum, ut non prius accusetur, quam de prioris accusatoris praevaricatione eonstiterit et pro- nuntiatum fuerit.' ' Dig. iii. 2, 4, 4 ' si fuerit . . . damnatus : ' cf. L. J. M. ' judicatum est erit.' ' Ulpian in Dig. iii. 2, 13, 6 : cf. Dig. xlviii, 1, 14. See p. 39. * Edict ' Qui furti, vi bonorum raptorum, injuriarum, de dolo malo et fraude suo nomine damnatus pactusve erit '-jL.J.M.' Quel furtei quod ipse fecit fecerit condemnatus pactusve est erit ; queive judioio . . . injuriarum sive d(olo) m(alo) condemnatus est erit.' For furtum cf. CoUatio, 7, 5. ' Paulus in Dig. iii. 2, 5 ' quoniam intellegitur confiteri crimen qui paciscitur.' ° Dig. I.e. 6 'Pactum sic accipimus, si cum pretio quantocumque pactus est.' IV.] THE PEAETOEIAN INPAMIA. 131 gratuitously : and secondly, even if the arrangement was monetary, but had been entered into at the bidding of the praetor, it did not produce infamia^. In contractual rela- tions on the other hand, even though, as in those which will be discussed in the next section, condemnation was pro- ductive of infamia, arrangement was not followed by the same consequences, the idea apparently being that in these contractual relations a monetary arrangement did not involve the same admission of fraud. (xii) In certain obligatory relations other than delicts an adverse judgment on the defendant produced infamia : this was the case with the contractual relations of partner- ship {pro socio), mandate and deposit, and the quasi- contract of tutela^. One of the limitations to the incidence of this infamia, as well as to that springing from the private delicts mentioned in the last section, is that the adverse verdict must be given against the defendant in his own name (suo nomine); those, therefore, who presented themselves in court and were condemned in the name of another (alieno nomine), such as pro- curators, tutors, curators, were not affected by infamia : nor could those in whose names they had presented themselves, if they had conducted the case throughout^. The first were not condemned themselves but in the name of another, while the second were not condemned in their own person*. On the same principle exemption from infamia is granted to the heroes, if he simply represents ' tripian, 1. c. § 3. ' Edict ' Qui pro socio, tutelae, mandati, depositi suo nomine non contrario judicio damnatus erit ' ; L. J. M. ' Queive judicio fiduoiae, pro socio, tutelae, mandate! . . . condemnatus est erit ; queive lege Plaetoria ob eamve rem, quod adversus eam legem fecit, fecerit, condemnatus est erit ' : of. Collatio, 10. 2, 4 ; 10. 6. ' Ulpian in Dig. iii. 2, 6, 2. ' In Cod. vii. 45 (de sent, et interloc.) i, it is said of an individual repre- sented by another, ' cujus persona in judicio non fuit.' K 2, 132 INPAMIA. [chap. the testator, in any of these four actions, although he might be pursued in solidum in actions springing from contracts of the testator (even from the quasi-contract of tutela) and in actions springing from a delict ^. With respect to the four contractual relations mentioned in the Edict, there was another condition requisite before infamia could result : and that was that the action springing from them must be direct (non contrario judicio), i. e. it must be an action meant to enforce the rights of the mandator, depositor, or ward. An actio contraria, on the other hand, that is, an action against the depositor or ward, to enforce the execution of obligations connected with the contract, but arising subsequently to it, such as indemnification for expenses, did not produce infamia^ : since in those actions there was no question of bad faith (perfidia)^- This gives the reason why these obligations, and no others, are followed by infamia ; they all involve breaches of trust. It is true that in a mandate non-fulfillment of the obliga- tion might arise from negligence rather than fraud: but even negligence in such a matter seems to have been interpreted as fraud*; the rule was hardest in respect to ' For actions springing from contracts of the testator see Pomponiua in Dig. xliv. 7, 12 ; for actions springing from delicts, Paulus, ib. 49. The heres might, however, be condemned in his own name, ' si in deposito vel in mandate male versatus sit,' and in this case became in/amis. (Ulpiau in Dig. iii. 2, 6, 6). 2 The condition, non contrario judicio, though applicable to the last three contracts, is not applicable to partnership (pro socio) ; in this case the action on both sides is direct (Eabaud, De la note d'inf., p. 5a). Yet the principle may have been extended to partnership, so far as mere indemni- fication was concerned. ' Ulpian in Dig. iii. 2, 6, 7 ' in contrariis non de perfidia agitur, sed de ealculo,' &c. ; in Dig. xvi. 3, 5 ' non . . . de fide rupta agitur, sed de indemnitate ejus qui depositum suscepit.' * Cic. pro Eosc. Amer. 39, 113 : confirmed by a rescript of Constantine (Cod. iv. 35, 21) : ' in re mandata non pecuniae solum . . . verum etiam existimationis perioulum est . . . nee quicquam in eorum administratione neglectum ac deelinatum culpa vacuum est.' IV.] THE PRABTOEIAN INFAMIA. 133 tutela ; non-fulfilment of tliis obligation might arise from accidental circumstances ; but even in this case the rigour of the law accounted it a prohrv^m to be followed by infamia. It is explained by the jurists as due to the exigencies of society 1 : and this makes it impossible to agree with those modern writers who have considered that particular fraud {dolus malus) had to be proved in these cases ^. They are assumed, in order to strengthen the feeling of obligation with respect to these trusts, necessarily to involve a breach of faith, however hard this interpretation might be in particular instances. It is one of the clearest survivals from the time when the censorship used its vast powers to enforce bona fides, as yet unsupported by any law. This exhausts the cases of infamia mentioned in the edictum, perpetuum in the mutilated form in which it has come down to us. It is quite certain that these do not exhaust the list framed by the praetor. Infamia necessarily changed to some extent, not only with the moral notions of the times, but with what to a certain extent expressed these: the recognition or non-recognition given by the positive law to certain courses of action'. Some of these sources of infamia became antiquated before the redaction of the Edict by Julian : others became antiquated between ' Ulpian in Dig. 1. 16 (de verb, signif.) 42 (as -opposed to furtrnn and afiM&riMm which are natura turpe) 'Tutelae damnari hoc non natura probrum est sed more civitatis : nee enim natura probrum est quod potuit etiam in hominem idoneum incidere.' The chief passage quoted against the view that breach of tutela always involved infamia is Just. Inst. i. 26 {de suspect, tut. et cur.) 6 ' suspectus autem remotus, si quidem ob dolum, famosus est ; si ob culpam, non aeque.' ^ Cf. Modestinus in Collatio, 10. 2, 5 ' Depositi damnatus infamis est : qui vero commodati damuatur, non fit infamis : alter enim propter dolum, alter propter culpam condemnatur.' ' This was the case with usury. It does not appear to have been forbidden by positive law in the later Eepublio and early Empire. The infamia attaching to it was probably, at one time, in the Edict. ^34 INPAMIA, [chap. that period and the date of the codification of the law by Justinian. It is this latter process which the fortunate possession of the Lex Julia Municipalis enables us with some success to trace. There are few cases mentioned in it wJiich may not have continued down to Hadrian's time, while all the cases (except perhaps one^) must certainly have appeared in the Edict at the close of the Republic. The first case of the kind which we have to consider belongs to the class of causes of infamia which spring from actions, and refers to the legislation which was directed to the protection of minors. The Lex Julia Municipalis disqualifies anyone 'who has been con- demned under the Lex Plaetoria, or on a ground arising from an oSence against that law ^.' Condemnation under the Lex Plaetoria was condemnation in a judicium publicum rei privatae springing from this law ; the latter portion of the ordinance, which refers to condemnation on a 'ground arising from the law' has been variously interpreted. Mommsen explains it of the exceptio legis Plaetonae in a privatum, judicium, having reference, e. g. to a loan (pecunia credita^). But, as Rudorff" remarks, it is difficult to see how an exceptio, if held valid, could give rise to a condemnation ; and it is best understood, as he explains it, of the praeJudiciuTn, or formal counter-action brought by the defendant in the original case in the form ^ The clause in the L. J. M. against those who had taken part in a proscription (' Queive oh caput c(ivis) K(omanei) referundum pecuniam praemium aliudve quid cepit ceperit ') is a political measure of Caesar's which could hardly have appeared in the. Edict. " ' Queive lege Plaetoria oh eamve rem, quod adversus eam legem fecit fecerit, condemnatus est erit.' ^ Mommsen in C. I. L. i. p. 125, ' Lege Plaetoria condemnatur vocatus in judicium publicum rei privatae, quod ex hac lege descendit (^Cic. De N. D. iii. 30, 74) ; oh eam rem, quod adversus legem Plaetoriam fecit, condemnatur qui in judicio private sive pecuniae creditae sive alio ideo non obtinuit, quia reus exceptionem legis Plaetoriae (Dig. xliv. 1, 7, i) a praetore impetraverat judioique probaverat.' IV.] THE PBAETOEIAN INFAMIA. I35 of the sponsio^. If his cause were established by the plaintiff, the defendant was condemned in the small amount of the sponsio. But at the same time it was decided that he had offended against the Lex Pluetoria: and either as a result of condemnation in this praeju- dicium, or in the Judicium publicum rei privatae, by which it was followed, he was declared infamis. It was really a condemnation for fraud, proved in the praeju- diciuTTb, and was therefore in any case included in the praetor's list, as we possess it, under the words dolus m^dus. (xiii) The next case that comes before us in the Lex Jvlia Municipalis, and which was certainly contained in the praetor's Edict, was that of bankruptcy. It is strange that it should have been cut out of the Edict even by the Justinianian compilers : for, quite apart from the mitigation of the law of debtor and creditor, effected during the Empire and completed by Justinian, the case of fraudulent bankruptcy must still have remained, and we should have expected it to deserve special considera- tion. When bankruptcy first made its appearance as a ground for the praetorian infamia it is impossible to say : but there is abundant evidence that, at the close of the Kepublic, it was frequently, though not invariably, made a ground for exclusion from honours by the censor^. The peculiar severity of the old Roman bankruptcy law makes it natural to beheve that political disabilities were from early times attached to an act which seems to have been regarded as a failure in civic duty. The nexal debtor of early times, although in bonds, was still a citizen and could serve in the Roman legions when necessity required it. But we have no direct evidence to show whether his political status was seriously affected, if he emerged from ' Zeitsehr. f. K. G. iv. p. 51. ^ See p. 27, 136 INFAMIA. [chap. being a nexus, or whetlier a similar disability attached to the jural debtor who had been incarcerated. The very early practice, however, of instituting a slave as an heir to a bankrupt estate (da/mnosa hereditas), in order to spare the memory of the testator, shows the sentiment on the subject, and sentiment of this kind is apt to be reflected in the law ^. It is after imprisonment for debt had practically, although not legally, disappeared, and been replaced by the enforced sale by the creditor of the debtor's goods (bonorum venditio) introduced by the praetor in the last century of the Republic, that we first find infamia connected with bankruptcy. The seizure and sale of the debtor's goods {bonorum possessio, proscriptio) in accordance with the Edict (ex edicto praetoris) seriously affected existimatio : and this is just such a case as the praetor would most readily have taken up from the censors' lists, since it was so intimately connected with the working of his own court. The disqualifications of the Lex Julia Municipalis affect the man^ 'who has sworn before the court that he has no means of meeting his engagements, or has sworn that he has some means of meeting his engagements, either in giving notice to his securities or creditors that he is not solvent, or by coming to an arrangement with his creditors on the ground of ' Just. Inst. i. 6, I ' valde enim prospiciendum erat, ut egentes homines . . . vel servum suum necessarium heredem habeant, qui satisfacturus esset creditoribus, aut hoc eo non faoiente ereditores res hereditarias servi nomine vendant, ne injuria defunctus afficiatur' : of. Gai. ii. 154. " ' Queive in jure \bonam copiam abjurmit'] abjuraverit, bonamve oopiam juravit juraverit ; quei (omit ve) sponsoribus oreditoribusve aueis reuun- tiavit renuntiaverit se soldum solvere non posse, aut cum eis pactus est erit se soldum solvere non posse ; prove quo datum depensum est erit ; quojuave bona ex edicto ejus, qu(ei) j(ure) d(eicundo) praefuit praefuerit, — praeterquam sei quojus, quom pupillus esset reive publicae caussa abeaset neque d(olo) m(alo) fecit feeerit quo magia r(ei) p(ublicae) c(aussa) a(besset) \_possessa proscriptave sunt enrnf] — ^possesaa proscriptave sunt erunt.' IV.] THE PRAETORIAN INFAMIA. 137 insolvency; or one who has caused his securities to pay for him; or one whose goods have been seized and put up for public sale, in accordance with the Edict of the judicial magistrate, except he be a ward or absent bona fide on the service of the Stated' The cases of bankruptcy which are here mentioned as producing infamia fall there- fore under two heads, (i) the case of ordinary bankruptcy, whether accompanied or not by a compromise affected by the creditors, (a) the case where a creditor has entrusted to his securities {sponsores) the duty of paying for him, and has not reimbursed them — a proceeding which was tech- nically a breach of onandatum, and therefore of itself infamous, though not involving specific fraud (dolus mains). Lastly comes the provision referring to the enforced sale of goods (bonorum venditio), which was at this period possible in any case of bankruptcy, whether fraudulent or not, except of course in the contingencies mentioned of arrange- ment with creditors or settlement by securities. It is impossible to see in either of the cases here mentioned, as has been done by some modern writers ^, a reference to fraudulent bankruptcy : and the extreme severity of the Roman law in this respect, so consistent with the rigorous instincts of mercantile honesty that distinguished the nation, continued unabated until the early Empire. The change came with the cessio bonorum introduced by the Lex Julia ; this gave the debtor the power of securing freedom from personal arrest by the surrender of his property, although it did not amount to a discharge ; ' A conclusive proof that regulations such as these figured in the Edict of Julian is furnished by Kudorff (Zeitschr. f. R. G. iv. p. 52), who notices that the expressions solidum non solvere (Dig. xlvi. 3, 85, i), reipuMicae causa abesse (Dig. xlix. 16, i) were found in the Edict as commented on by Ulpian and Callistratus. If so, they must have appeared in the provisions respecting infamia in Julian's Edict. 2 E. g. Buschke and Rudorff, see Appendix, note 2. 138 INFAMIA. [Ohap. and the principle was finally observed that the cession of goods, even though followed by their sale en masse, did not produce infamia^. The cessio bonorum was, however, essentially a beneficium^, and could not have applied to fraudulent bankrupts. The bonorum venditio had disappeared as a whole with the Judida ordinaria by the time of Justinian ^ It was this that infamia had followed : and the absence of any mention of bankruptcy in the list of infames as cut down by the compilers of the Digest shows that it could not have afiected civil honour in the final stage of the Roman law. Such are the cases by which the Edict may be supple- mented by this law of Caesar's. There is one case remaining which was certainly in the Edict ; for it was, perhaps more than any other, a source of infamia directly created by the praetor, and the absence of any specific mention of it in the form in which the Edict has come down to us is not easily explained, since it was a point of law which never became antiquated. (xiv) It had reference to the removal of a tutor, and in later times a curator as weU, who was under the suspicion of maladministering the affairs of his ward {suspecti crimen). This removal might be based on various grounds ; some produced infamia, others did not. A distinction was drawn between actual fraud {dolus) and mere fault or negligence {culpa, negligentia)\ The former ground produced infamia ' Cod. ii. 11 (12\ II (Severus Alexander, A. d. 223), ' Debitores qui bonis cesserint, licet ex ea causa bona eorum venierint, infames non fiunt.' ^ Cod. vii. 71, I 'in eo enim (i.e. 'cessio bonorum') tantum hoc beneficium eia prodest, ne judicati detrahantur in carcerem.' * Inst. iii. 12 ' cum extraordinariia judiciis posteritas usa est, ideo cum ipsis ordinariis judiciis etiam bonorum venditiones exspiraverunt.' * Inst. i. 26 {de susp. tut. et air.), 6 ; 'suspectus autem remotus, si quidem ob dolum, famosus est : si ob culpam, nm, aeque.' This has been explained by reference to Dig. xxxvii. 15, 12 'licet enim verbis edicti non habeantur infames ita condemnati, re tamen ipsa et opinione hominum non effugiunt IV.] THE PEAETOEIAN INPAMIA. 139 in the legal sense, the latter did not ; and naturally, when the ground of removal by the magistrate was mere lack of ability, energy, or force of character, existimatio remained intact ^. It was thus extremely important that the praetor should state the ground of removal^. Where by any chance the magistrate had omitted to state the ground of the removal, the verdict of Papinian was accepted, that this removal did not produce infamia ^. (xv) Closely connected with the foregoing, as having reference to tutela, is a case of infamia which may be posterior to the redaction of the Edict. It was created by a senutus consultum, of unknown date, but earlier than the reign of M. Aurelius*, which forbade tutors or curators to marry their wards or to give them in mamage to their sons. In the former case the guardian, in the latter both he and his son were infames, and this was the case even though the son were under power at the time of his marriage '. The marriage itself was in such case null ; but the invalidity was removed and the infamia averted if the formal consent of the father of the ward had been infamiae notam.' The same principle is affirmed in Cod. v. 43, 9 (Diocletian and Maximian, A. d. 294). ' TJlpian in Dig. xxvi. 10, 3, 18. ^ TJlpian in Dig. xxvi. 10, 4, i ' deereto igitur debebit causa removendi significari, ut appareat de existimatione.' ' Mentioned by Callistratus (Dig. xxiii. 2, 64), Tryphoninus (ib. 67), and in a constitution of Diocletian and Maximian (Cod. v. 6, 7). * Paulus in Dig. xxiii. 2, 66 ' Non est matrimonium, si tutor vel curator pupillam suam intra vieesimum et sextum annum . . . ducat uxorem vel earn filio suo jungat : quo facto uterque infamatiir . . . nee interest filius sui juris an in patris potestate sit ' ; ' uterque ' must refer to father and son : not as Marezoll takes it (Biirg. Ehr. p. 159) to tutor (et) curator, in spite of its apparent contradiction to the principle laid down with respect to the rules of mourning (qvii jussu patris duxit . . . non notatur,' Dig. iii. 2, 12). The constitution of Diocletian and Maximian (Cod. v. 6, 7) has only reference to the case of the father, and cannot be adduced as evidence against the principle laid down by Paulus, as it is by Hepp (De la note d'Inf. p. 47). 140 INFAMIA. [chap. obtained either during his lifetime or through his testament, or else by a grace of the Emperor ^- The reason given for this singular provision was that such a marriage was assumed to be tantamount to a confession of maladministration, and to be a cloak to cover irregularities committed during guardianship^. The part'played by tutory in the history of infamia — the three modes by which civil honour was affected, condemnation in an action, removal on suspicion, and this supposedly fraudulent marriage — ^is a good instance of the manner in •which fides was protected, throughout the history of Roman law, by this form of sanction ^. Immediate infamia was also produced in the time of the Empire by (xvi) an accusation to the fiscus which was not proved by the accuser * ; a mode of checking rash delation, which resembles the penalties imposed by the Senate on its members in the early Principate, and the stigma attached to delatores in the later Empire ; and (xvii) to usury ^. This, as has been remarked, may once have figured in the praetor's Edict, as it was doubtless a ground for the nota of the censor at the time when usury was forbidden by law, and even, perhaps, when it was discountenanced, though not forbidden. It may, therefore, be treated as one of the sources of infamia ' Dig. xxiii. 2, 66 ; Cod. v. 6, ^. '' ' velut confessum de tutela' (Cod. v. 6, 7) : ef. Dig. xxiii. 2, 67. ' As regards the formal classification of these two cases of infamia result- ing from tutela, the latter appears to be immediate, the former mediate ; for the removal on suspicion may be assimilated to a sentence, and the infamia does not follow here on a course of action but on its recognition by a magistrate. * Dig. xlix. 14 {dejurefisd), -z, and 18, § 7. " Cod. ii. 11 (12), 20 (Diocletian and Maximian, a. d. 290) ' Improbum foenus exercentibus et usuras usurarum illicite exigentibus infamiae macula irroganda est.' IV.] THE PEAETORIAN INFAMIA. X41 that had a long, if interrupted, recognition in Roman law; although it is only known to us as producing this effect from a constitution of Diocletian and Maximian of the year 390 A.B. How this infamia was pronounced is not quite clear: it was immediate, since it followed on the fact of the exaction of an illicit rate of interest; but this fact could hardly have become apparent otherwise than in an action for recovery ^. Turning now to cases of infaviia mediata other than those mentioned in the Edict, we find the penalty attached to two extraordinary delicts. These were the violation of a sepulchre, and robbery of an inheritance. (xviii) Violation of a sepulchre was an extraordinary delict, in which a money-penalty could be recovered by means of an actio ; and this action produced infamia ^- It was also an extraordinary crime punished by a poena ^ and in one particular form could actually be made the subject of a Judicium 2mhlic%ini*, as technically falling under one of the clauses of the Lex Julia de vi puhlica. In this case also it would produce the infamia which followed condemnation in these eoui-ts. The very nature of this offence shows that it must have had a long history in Roman law as a means of derogating from civil honour. The Emperor Julian, when in the year 363 he made it sacrilege, goes back in memory to the spirit of the older religion which had treated it as such, and mentions the form of expiation (piaculum) to which it led ®. It belonged, in fact, to the old pontifical law of Rome, the offences against which, when its own peculiar sanctions had been ' Eabaud, Sur I'infamie h Eome, p. 50. ' Dig. xlvii. 12, i and g. ^ Paulua in Dig. ib. 11. ' Macer in Dig. ib. 8. ° Cod. ix. 19, 5 (Julian, a. d. 363\ 'Lapidem hine movere et terram sollicitare et cespitem vellere proximum sacrilegio majorea semper habu- erunt — ne in piaculum incidant contaminata religione bustorum, hoc fieri prohibemus poena sacrilegii cohibentes.' 14* INFAMIA. [Chap. rendered invalid, were taken up and punished by the censors. It formed part of their care of the sacra genti- licia ; and it is a mere accident that this kind of infamia is known to us only in its latest stage, as the result of a formal delict or a formal crime. (xix) The actio expilatae hereditatis belongs to that class of extraordinary delicts which approximated to fv^rtuTn, but were not technically included under that head. It naturally led therefore to the same consequences as the main offence to which it approximated, and produced infamia^. The Emperor M. Aurelius organised for it a special procedure in criminal law ^, and Ulpian classes it with stellionatus as a crimen extraordinarium^. In this case it must have been followed by a poena extraordinaria : and probably the same disabilities resulted from the imposition of this penalty as were consequent on the actio. It seems fair to conclude that all the other offences approximating to furtum, which were punished extra ordinem* must have produced infamia, although this is not mentioned in connection with them. With respect to criminal law in its developed form, infamia might follow as a consequence of condemnation both in the ordinary courts and in the judicia extraordi- naria. With respect to the former, the final assertion of the principle, that condemnation in ebuy judicium publicum produced infamia, has already been noticed. With respect to the cognitiones eodraordinariae, calumnia, praevari- catio, tergiversatio — all of which followed this form — have already been treated in connection with the praetor's Edict. But one great extension was necessary in order to make infamia co-extensive with almost the whole circle ' Ulpian in Dig. xlvil. 19, 2 ; Cod. ii. 11 (12\ 12. " Dig. xlvii. 19, I. ^ lb. 11, 3. * As those mentioned in Dig. xlvii. titles 16 to 18. IV.] THE PEA.BTOEIAN INFAMIA. 143 of the criminal law ; and this was effected by making it the invariable accompaniment of the crime of stellionatus. (xx) Stellionatus is sometimes treated as a delict : more often as a crime, to which an extraordinary penalty was attached^. It was more properly the latter and the widest of charges, covering the whole field of criminality not usurped by special courts ; it was, in fact, in criminal matters what fraud [dolus vtwlus) was in civil actions^, and as such naturally produced infamia''. 1 Papinian in Dig. xlvii. 20, i , ' Actio stellionatus neque publicia judioiis neque privatis actionibiis continetur.' Cf. Ulpian in Dig. ib. 3. Cod. ix. 34, 3 (Gordian, a. n. 242), 'Stellionatus accusatio inter orimina publica non habetur.' ^ Ulpian in Dig. xlvii. 20, 3, ' quod enim in privatis judioiis est de dolo actio, lioo in eriminibus stellionatus prosecutio — et ut generaliter dixerim, deficiente titulo criminis hoe crimen locum habet Poena autem stellionatus nulla legitima est, cum nee legitimum crimen sit.' ^ Ulpian in Dig. iii. 2, 13, 8, says, ' Crimen stellionatus infamiam irrogat damnato, quamvis publicum non est judicium ' : in Dig. xlvii. 20, 2 he says, ' Stellionatus judicium famosum quidem [non] est, sed coerci- tionem extraordinariam habet.' We must follov? Favre and Krueger in omitting the 'non' in this latter passage. This would be an unjustifiable mode of cutting the knot if it vrere only done to reconcile the conflict betw^een the two extracts ; but it is necessary in order to give a tolerable sense to the second passage standing by itself. CHAPTEE V. LATEE HISTORY OF THE INFAMIA, We now reach the last stage in the history of the infamia. The praetorian conception had swallowed up the censorian, and it was natural that the codified form should prevail. But the notion, inherent in the censorian procedure, of exclusion from public honours, now again became the dominant idea. When it became so cannot be stated with certainty ; we know of no general principle which made infamia a ground of exclusion from all public honours before the time of Constantine. But, already in the second century of the Empire, infamia seems to be extended as a fixed conception to new cases. It was employed to meet one of the growing evils of the times — that of delatio. (xxi) False ddatores were punished with ' the nota ' by M. Aurelius ; even those who proved their case were made infames by Macrinus^. But it was chiefly after the conception had been fixed by Constantine that we find a change in the character of the infamia. It was a change that naturally accom- panied the transference of law-making from the judges ■ Vit. M. Anton, ii, 'Caliunniis quadruplatorum intercessit, adposita falsis delatoribus nota'- Vit. Maerini, 12, 'Delatores, si non probarent, capite adfecit, si probarent, delato pecuniae praemio infames dimisit.' Already in the early Prinoipate it had been made a ground of exclusion from the Senate (Tac. Ann. iv. 31, 8 ; xii. 59). LATER HISTORY OF THE INFAMIA. 1 45 and the interpreting jurisconsults to the sole person of the Emperor. The infamia has no longer a natural growth : it almost loses its moral significance. It is employed merely as a very powerful weapon in the hands of the Emperor to check evils of administration as they arose. The added cases of infamia form only a disconnected list. They are chiefly valuable as throwing light on some of the evils which threatened the administration even of the ' divine' and ' hallowed ' rule of the later Caesars. They may be conveniently divided into judicial and administrative. I. Injudicial matters the judge was in/amis (xxii) Who, in a case which he had sent on appeal to the Emperor, had not forwarded all the documents which had been produced by the parties in the case, and were necessary to the full solution of the question at issue. The reason given for this threat was the necessity of obviating the delay, which would ensue if the Emperor had to refer back to the lower court for information which should have been supplied from the first^. But the wisdom of this nota can still better be defended if we think of the power that suppression of documentary evidence might give to an unjust or corrupt judge. (Constantine, a.d. 319.) (xxiii) Who has tolerated the harsh treatment of prisoners and who has not executed summary punishment on the guardians of prisons (stratores) guilty of such treatment. (Constantine, a.d. 320^.) (xxiv) A judge or provincial governor who has submitted to torture a principalis or senator of a municipal town. (Gratian, Valentinian II, and Theodosius I, a.d. 381^.) ' Cod. vii. 62, 15 'ne causas, quae in nostram venerint scientiam rursus transferri ad judicia necesse sit, instructiones necessarias plene aetis inseri praecipimus,' &c. ■" Cod. ix. 4, I, 5. " Cod. X. 32 (31), 33 : foi^ the principle that decurions might not be tortured, see Dig. 1. 2, 14. L 14.6 INPAMIA. [Chap. (xxv) The judge who has made a praefectianus or palatinus or ordinary soldier, or anyone who has filled these posts, intercessor or executor, in any case whether public or private. (Valentinian II, Theodosius I, and Arcadius, A. d. 386 1). (xxvi) Who has shelved, left unpunished, or visited with a lighter penalty than that ordained by law, a crime of breach of the peace (violentia) which has been proved before him. (Valentinian II, Theodosius I, and Arcadius, A.D. 390 2.) (xxvii) After the Court the Bar deserved attention : and we find the Emperors taking precautions against a form of civilised barbarism peculiarly difficult to deal with — the unmeasured license of invective and insinuation which not unfrequently marks the pleadings of advocates. Probably lawyers of the free Eepublic, having no privileged position, were always open to a charge of slander, although the pleadings which have been preserved show that it could not have been efiectual. At a time when the jury-system had disappeared such forms of oratory must have been less usual, since they are only effective before popular courts. The Emperors Valentinian and Valens treated such invectives as injuria and visited them with infamia (A.D. 368)3. Other employments of the nota were made to check the abuse of the right of appeal to the Emperor and to the higher courts of appeal which he had established, par- ticularly to that of the praefectus praetorio. (xxviii) The first regulation refers to the case of an appeal which has not been allowed by a subordinate » Cod. i. 40, 8. = lb. ix. 12, 8, 3. ' Cod. li. 6, 6 ' agant (advocatl) quod causa desidei-at ; temperent ab injuria. Nam si quis adeo procax fuerit, ut non ratione, sed probris putet esse certandum, opinionis suae imminutione quatietur.' v.] LATER HISTORY OF THE INPAMIA. 147 Judge of Appeal, but which has then been brought to the highest court, that of the i^'raefectua praetorio, to be heard afresh ^ If, in this final stage, the appellant lost his case he was in/amis (Constantine, A.D. 331). (xxix) Infamia also visited the appellant who, instead of employing the normal course of appeal^ addressed a special supplication to the sovereign {petere per supplica- tioneni), (Constantine, a.d. 331)^. By a constitution of Valentinian II, Theodosius I and Arcadius, issued in the year 384 a.d., this procedure was treated as ambitus, and possibly the infamia in this case was mediate, arising from a condemnation on this charge^. (xxx) Before this period the appellant guilty of contempt of court by insulting the judge had been visited with infamia*. (xxxi) In civil matters, the only new regulation — if indeed it was a new one and not the restatement of an old principle — that comes before us during this period, recalls the early working of the infamia in its connection with private law ; for it refers to the violation of verbal compacts. By a constitution of Arcadius and Honorius, of the year 395 A.D., any one over age who has violated a pact or transaction by not fulfilling the promises con- tained in it, or has attempted to evade it by a request made to the judge, or a supphcation addressed to the sovereign, is declared infamia^. (xxxii) In criminal matters we also meet with new applications of infamia, answering to changes in procedure ' 'ut apud eos de integra litiget tamquam appellatione suscepta' (Cod. vii. 62, 19). There was no appeal to the Emperor from the praef. praet. (ib.) ' Cod. i. 21, 3. ^ Cod. i. 16 ' ut, si quisquam speciali supplicatione eliciendum aliquod rescriptum temptaverit . . . damnatus ambitus criraine maneat infamis.' * Dig. xlvii. 10, 42 (Paulus, lib. v. sent. [L 18]). ' Cod. ii. 4, 41. L a 148 INFAMIA. [Chap. or to the increased disapprobation with which certain special crimes were viewed. The first regulation refers to the change in procedure adopted in the case of contumacious rei who refused to appear before the court. The Emperors Severus and Antoninus, whUe maintaining by a rescript the old principle that no one could be condemned in his absence, yet ordained that in such cases the individual should be posted up as wanted by the court (absens requiroidus adnotatus), and that the governors of provinces should issue Edicts to demand their presence^. These Edicts, caHed progra^m- mata, did not in any way prejudge the guilt of the requirendus adnotatus ^ : but, while in civil actions (pecuniariae causae) such an Edict produced no effect on character, it was enacted by a constitution of Honorius and Theodosius II in 421 a.d. that the individual against whom a programma criminale had been issued in con- sequence of a crimen pvMicum, which he had committed should be in/amis^. This was in reality only a more general application of an older principle which had pre- vailed in the time of the classical jurists. Trajan's principle that no one should be condemned in absence was upheld. Punishments, however, were imposed on contumaces, but the rule was adopted that these punish- ments on the absent should be only such as affected existimatio, never such as affected caput*. By this later constitution of the fifth century all the requirendi, who were presumably contumacious, were immediately rendered infames without' the necessity of awaiting the special sentence of a criminal court. (xxxiii) The only other criminal ordinance which re- quires mention in connection with the infamia marks the •■ Dig. xlviii. 17, i. " Cod. vii. 57, 6. 3 Cod. ix. 40, 3. » Dig. xMii. 19, 5 (Ulpian). v.] LATEB HISTORY OF THE INPAMIA. 149 climax of the law of treason, ever the curse of the Eoman Empire. In the matter of abstract injustice it goes far beyond any other use to which the Eomans put their con- ception of Civil Honour. By a constitution of Arcadius and Honorius in 397 a.d. it was enacted that the sons of those who had entered into a dangerous conspiracy against the Emperor or the imperial councils — i.e. members of the Con- sistory and the Senate — should be infames, excluded from all honours and from the army, and should be further debarred from receiving any direct or indirect inheritance. It was a remarkable abuse of the conception in both these respects : as transmitting the stigma from father to son, contrary to the principle that the infamia was not here- ditary; and as attaching a civic disability to the nota which did not usually accompany it^. To this ordinance a rider was added, that any one who interceded for those, on whom the disabilities were imposed, should be also infam.is. II. The other regulations made by the Emperors, from Diocletian and Constantine onwards, were concerned with questions of general administration. (xxxiv) To the beginning of this period belongs the ampli- fication of a rule respecting freedmen. The Lex Visellia of 33 B. c. had imposed penalties on men of this class who ven- tured to usurp the offices and honours [honores et dignitates) ' Cod. ix. 8, 5. ' Filii vero ejus ... a materna vel avita, omnium etiam proximorum hereditate ac successione habeantur alieni, testamentis extraneorum nihil capiant, sint perpetuo egentes et pauperes, infamia eos paterna semper comitetur, ad nuUos umquam honores, nulla piorsus sacrameuta perveuiant.' To daughters the Falcidian fourth was allowed ; the dowries of the mothers that would have gone to the sons were to fall to the flsms : but the fourth of these also was allowed to daughters. The offender himself, if convicted after death {comricto mortuo), was punished by damnatio memoriae. On the relation of this ordinance to the general theory of punishment and to the law of treason in particular, see Appendix, Note III. 150 INFAMIA. [Chap. reserved for men of free birtli (ingenui) — amongst these offices being that of a senator in a municipal town. The rule only affected freedmen who had not had the fiction of free-birth bestowed on them by the right of the gold ring {jus aureorum anulorum), or, later, by the restoration to the birth-right (natalihus restitutio) — both in the gift of the Emperor. By a constitution of Diocletian and Maximian, issued about 300 a.d., freedmen guilty of such conduct were not only punished but declared infaines. As they were ah-eady debarred from office, infamia in this case must have been felt chiefly in its civil consequences. It is not likely that such a man would ever have attained the fiction of ingenuitas from the Emperor: but, if this ever happened, we must assume that the infamia would have been withdrawn at the same time by an imperial decree^. This ground of infamia naturally disappeared when Justinian abolished the distinction between lihertini and ingenui, by enacting that the conferment of ingenuitas should follow as a matter of course all cases of formal manumission ?. (xxxv) A further employment of infamia had reference to forbidden marriage. Unions had been prohibited between senators and men of high position, and a class of women described as humiles abjectaeque, in consequence of birth or occupation ^- By a regulation of Constantine issued in ^^6 A.D. dignitaries of the State — senatores, perfectissimi, duumviri of the municipal towns, and the members of the ' Cod. ix. 21 ' Lex Visellia libertinae condicionis homines persequitur, si ea quae ingenuorum sunt circa honores et dignitates ausi fuerint attemptare vol decurionatum adripere, nisi jure aureorum anulorum impetrato a principe sustentantur ... in curiam autem se immiscens damno quidem cum infamia adficitur.' Cf. Cod. x. 33 (32), i (Diocletian and Maximian) ' si libertus vel jus aureorum anulorum adeptus non est vel natalibus suis non restitutus,' &c. 2 Not. 78, i. ^ q^^ y 5^ ^ v.] LATER HISTORY OF THE INFAMIA. 151 religious colleges of Phoeniciarclis and Syriarchs are given in the enumeration — are marked with infamy, if they pass as legitimate children born of such women as those with whom marriage was interdicted ^- This ground of infamia again was removed by Justinian, when he repealed the prohibitions of marriage ordained by his predecessors^. (xxxvi) The next regulation is an attempt to meet an evil which appeared at the very outset of the Roman imperial system as organised under a single rule, and which grew with its growth. This was the extreme un- willingness of citizens of the municipal towns to fill the offices of their native places. The life of a senator (decurio) came in course of time to be one of burden, expense, and even of danger : and concealment of the unlucky people who were qualified for the local senates was not unusual. A constitution of Valentinian I, Valens and Gratian, of 371 A.D., punishes any one guilty of such concealment with infamia^. (xxxvii) An incidental case of infamia originated with the regulations of Theodosius II and Valentinian III as regards imperial rescripts. While in 426 A.D. laying down rules for, and in some respects limiting, the validity of such rescripts, they enacted that any one who gave a bad or distorted intei-pretation, or impugned the validity of an imperial answer which he had elicited, should be infamis*. (xxxviii) The next employment of this disability which we meet with is interesting and important as having reference to education. It proceeded from Theodosius II and Valentinian III in 425 a.d., but the principle on which it ' Cod V. 27, I. ^ Nov. 89, 15, the Constitution of Constantine is mentioned as having sunk into desuetude ('non utendo perempta est '), and is formally repealed {'quam videlicet constitutionem etiam omnino perimimus'). Cf. Nov. 117, 4. = Cod. X. 32 (,.31;, 31. ' Cod. i. 14, 2. 152 INFAMIA. [Chap. depended was established by the Emperor Julian in 362 A.D. Julian created a state-sanction for education by requiring that all teachers and professors (magistros stvdiorwm doctoresque) should show special qualifications, both moral and intellectual, and that this should be recognised by a diploma granted, in the States of the Roman world generally, by a decree of the local Senate 1. Whether Julian meant to stamp out private and unauthorised instruction or not, the constitution of Theodosius and Valentinian only punished unqualified professors with infamia, who lectured in the public halls and lecture rooms {in publicis magistrationibus cdlulisque) and did not affect private tutors^. (xxxix) The last instance of infamia that we have to chronicle was an inevitable consequence of the recogni- tion of a canon of orthodoxy by the State. By an Edict of Gratian, Valentinian II, and Theodosius I, published in 380 A.D., all heretics are declared infames''^. Special dis- abilities were from time to time inflicted both on heretics and pagans. Theodosius I declared the Eunomians intes- tabiles ; a similar threat was pronounced by the same Emperor against Christians who had gone over to heathen- dom*. But it was on heretics rather than on pagans that disabilities were most frequently imposed ; and by this infamia was finally meant exclusion from all honours and dignities. In the times of turmoil and confusion that intervened between Theodosius I and Justinian such a regulation could not always be enforced. Catholic Emperors were often at the mercy of their Arian sup- porters, and Gothic princes could set at defiance the rules ' Cod. X. 53 (52), 7. ' Cod. xi. 19 (18). ' Cod. i. 1 ((fe summa trinitate et de fide catholica), i. {Impp. Gratianus, Valmtiniarms, et Theodosius A. A. A. ad popidum urbis ConstanHnopolitanae), * Cod. Theod. xvi. 5, 6-23 ; xvi. 7, 1, z. v.] LATER HISTORY OF THE INFAMIA. 153 of the orthodox Empire. Yet, so far as the internal administration of peaceful provinces was concerned, we may perhaps suppose these disabilities to have been really enforced from the time of Theodosius onwards. The definitions of heresy depend on the decisions of the suc- cessive councils. By Justinian orthodoxy was defined in accordance with the decisions of the Councils of Nicaea, Constantinople, Ephesus and Chalcedon^. ' Cod. i. 1. 2 {Nicaena fides recognised by G-ratian, Valentinian II, and Theodosius I 381 a. d.), 3 (Nicaea and Ephesus by Theodosius II and Valentinian III, a.d. 448), 4 (Chalcedon by Marcian, a. n. 452), 6, § 11 (Nicaea, Constantinople, Ephesus, and Chalcedon by Justinian, a. d. 533). In this list of the imperial applications of infamia two cases have been omitted as being unauthentic. The first is a constitution of Constantine, a.d. 319 in Cod. vii. 49, 2 : ' De eo, qui pretio depravatus aut gratia perperajn judicaverit ei vindicta quem laeserit non solum existimationis dispendiis, sed etiam litis dis- crimine praebeatur.' In spite of the many curious expressions used to describe the infamia in imperial constitutions, existimationis dispendia is almost too singular to stand, and the right reading is perhaps that of Godefroy, aestimationis. Cf. Dig. v. 1, 15 'judex tunc litem suam facere intellegitur, cum dolo malo in fraudem legis sententiam dixerit . . . ut veram aestimationem litis praestare cogatur.' The other is the pretended Edict of Justinian's appended to Cod. ii. 58 (59) : ' Pateat omnibus nostram rem publicam procurantibus con- ventieulam seu conspirationem jurisjurandi religione vel quoquo modo compositam a nostra majestate prohiberi et detestari : unde hujus rei fautores et socios ab onmi publico honore sibi commisso iufamiae nota privamus, non habentibus autem ad ullum publici honoris gradum acce- dendi licentiam penitus amputamus.' It is generally regarded as an apocryphal addition of the twelfth century. CHAPTER VI. EFFECTS OF THE DEVELOPED CONCEPTION OF INFAMIA. It has now been sufficiently demonstrated that infamia was always primarily a matter of public law ; it was only secondarily, and in accordance with the use to which the praetor put the conception in order to guard the dignity of his own court, a matter of private law. This justifies us in treating the consequences of infamia as a whole under the main divisions of its primary and its secondary effects. The most important amongst the primary effects of infamia were those which touched the honores, or individual magistracies of the State. With respect to these we have seen that there was no universal regulation in the time of the Republic. Criminal laws had occasionally as one of their sanctions exclusion from honores, and the magistrates who presided over the admission to office might have been bound to respect them. At the same time the censors, acting independently of any decree of the State, took it upon themselves to exclude from all functions, over which they had control, certain classes of individuals which developed into something like a fixed category in conse- quence of the rulings of successive holders of the office. But to create a perpetual exclusion of infames as such from office two things were necessary : one was the fixing of the conception of infamia through the persistence of the praetorian list, and the commentaries of the jurists to which it gave rise; the other was the decree of an THE DEVELOPED CONCEPTION OF INFAMIA. 155 Emperor. Both were realised : and after Constantine a definite category of persons called infainies were for ever excluded from the dignitates of the State. There are two pohtical capacities, however, which de- serve fui-ther consideration in connection with the infames. These are the judicial bench and the army. As regards judices, we know that special laws which prescribed the mode of selection for the album judicum excluded certain people on moral gi'ounds, and pronounced them infames for this limited purpose. And these grounds are, as we should expect, in touch with the wider category of the praetorian infamies. Thus the Lex Acilia Repe- tundaruvi of 122 b.c. excludes anyone who has hired himself out to fight as a gladiator, or whose condemnation in a criminal court has entailed exclusion from the Senate^. Again certain criminal laws had appended as one of their formal penalties that a man condemned under them should for ever be prohibited from being a Judex. This was one of the provisions of the Lex Julia de vi privata and also of the Lex Julia repetundarum^ ; and we may notice that the juristic interpretation of this latter law put exclusion from the Senate and exclusion from the judicial bench on the same leveP. Such principles were sure to develope : and were helped out by the very free hand which the praetor had in the selection of his judicea. The 'urban praetors,' says Cicero, ' are bound on oath to select the best men*.' It is, therefore, in the highest degi'ee improbable ' Lex Adl. Bep. 1. 13. ' For Lex Julia de vi privata see Marcian in Dig. xlviii. 7, i (p. 22), Lex Julia Repetundarum, Dig. xlviii. 11, 6. ' Marcellus in Dig. i. 9, 2. 'Cassius Longinus non putat ei permit- tendum, qui propter turpitudinem senatu motus nee restitutus est, judicare vel testimonium dicere, quia lex Julia repetundarum hoc fieri vetat.' Cf. Cod. xii. 1, 12. Cic. pro Cluent. 43, 121 'praetores urbani, qui jurati debeut optimum quemque in selgctos judices referre.' 156 INPAMIA. [Chap. that the praetor would ever have selected as judices those whom his own Edict had declared infames for the much less important purpose of postulation. The praetor, like the censor, was partly limited by law, partly followed his own discretion. He was not bound to follow the line taken by the censors, in their pronouncements of igno- nninia ; but that he systematically disregarded the censorian rulings is, as we have seen, in spite of Cicero's apparent statement to that effect, extremely improbable. It was, in fact, rendered almost impossible by the circumstance that the censors had the first chance of excluding from lists (the Senate and to a less degree the equites) from which the jvdices were afterwards selected by the praetor. The praetor's scrutiny must in fact have been more severe than that of the censors : and it may be taken as certain that none of the individuals whom the praetor's Edict pronounced infamies could appear on the judicial bench. Since this was the category utilised and developed by the later Empire, a similar exclusion may safely be assumed as having been perpetuated under that regime, so far as there yet remained any room for Judices proper under the cognitiones extraordiTiariaehy ■which the Judicia ordinaria had been replaced. We shall have occasion to examine later on the cases in which either laws or certain observed principles of procedure prohibited certain classes of individuals from appearing as witnesses in courts of law. In these cases again we may argue a fortiori that the individuals in question would have been excluded from the position ot judices'^ - ' The mode in which these special prohibitions about evidence were extended as cases of infamia may be illustrated by a comparison of Dig. xxii. 5, 3, 5 (the list of persons whom the Lex Jidia da m prohibited from giving evidence) with Cod. viii. 12, 8 ' quod si illi (i. e. servi) metu atque exhortatione dominorum violentiam admiserint, palam est secundum VI.J THE DEVELOPED CONCEPTION OF INEAMIA. 157 The question ' Did the developed conception of infamia, as it existed under the Empire, exclude from service in the army ? ' we may answer in the affirmative : but only with confidence so far as the most extreme grounds of this disqualification were concerned^. Service in the legions was regarded as a honor rather than a munus, and the law here follows the analogy of the regulations about dignitates. We find for instance that, if a soldier had been ' relegated,' and after fulfilling the term of his exile, sought enlistment, the reason for his condemnation {causa damnationis) was the essential point in the decision. If it was such as to involve perpetual infamia it also in- volved perpetual exclusion from the ranks. Again the requirendus adnotatus was excluded from the ranks, and a man in this position was, as we have seen, made infamis by a constitution of Honorius and Theodosius of the fifth century a.d. Admission was also denied to those con- demned for adulterium, or in a.iij judicium publicum, and these were amongst the infcmies^. Lastly, an imperial constitution which we possess, while providing for restora- tion of exiles through a grace of the Emperor {generalis indulgentia), denies that restoration to the ranks can be one of its consequences, and puts military functions on the same level as Integra existimatio^ : and the sons of traitors who, by the constitution of Arcadius and Honorius, are debarred honores, are also forbidden the sacramenta*. legem Juliam dominum infamem pronuntiatum loci aut originis propriae dignitate non uti.' ' The list of grounds on whicli enlistment was forbidden given in the Dig. (xlix. 16, 4, 1-9) includes only certain cases of infamia ; but it is possible that this list is not exhaustive, so far as the rules of service of the later Empire are concerned. ^ Dig. xlix. 16 {de re militari), 4, §§4, 6, and 7. " Cod. ix. 51 [de sententiain passis et restitutis\ 7. ' Cod. ix. 8, 5, see p. 149. 158 INFAMIA. [Chap. If we turn now to the secondary, or civil law effects of infamia, we find that these were naturally connected with the working of the praetor's court, and with the purpose for which he framed the Edict including the list of infavies. What was spoken of as the second Edict contained a list of those who were allowed to postulate only for themselves : and amongst this class were the in turpitudine notabiles. Improper attempts at advocacy on the part of such persons were not merely repulsed by the magistrate, but were punished extra ordinem with a fine. The third Edict contained the list of those able to postulate for themselves, and only in exceptional cases for others^. In this thii'd class were included omnes qui edicto praetoris ut infames notantur. This limited capacity for postulation 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 pro- curator^. The consequence of this was that the assign- ment of an action to an infamous person was impossible, because all such assignments took the form of commissions to a cognitor or procurator. This effect of infamia was, 1 The exceptional eases were enumerated by the praetor as follows : ' Pro alio ne postuleut praeterquam pro parente, patrono patrona, liberis parentibusque patroni patrouae . . . liberisve suis, fratre sorore, uxore, socero socru, genero nuru, Titrico noverca, privigno privigna, pupillo pupilla, furioso furiosa.' ['fatuo, fatua,' added by Gaius, but probably not in the Edict (Lenel, p. 63)], cui eorum a parente aut de majoris partis tribunorum (Lenel) sententia aut ab eo, cujus de ea re jurisdictio fuit, ea tutela curatiove data erit.' 2 Fragm. Vat. §§ 322-334 'verba autem edicti haec sunt: "alieno," inquit, "nomine, item per alios ageudi potestatem non faciam in his causis, in quibus ne dent cognitorem neve dentur, edietum comprehendit." quod ait "slieno nomine item per alios" breviter repetit duo edicta cognitoria, unum quod pertinet ad eos qui dantur cognitores, aiterum ad eos qui dant (Suppl. Hollweg) ; ut qui prohibentur vel dare vel dari cognitores, idem et procuratores dare darive arceantur. Ob turpi tudinem et famosi- tatem prohibentur quidam cognituram suscipere, ad sectionem (i. e. postulation as an ' adsector in libertatem ') non nisi suspecti praetori.' VI.] THE DEVELOPED CONCEPTION OP INFAMIA. 159 however, counteracted in time by the form of assignment known as utiles actiones. These did not require the nomination of a cognitor or procurator : and since the person to whom the assignment was made in this form prosecuted the claim in his own name^, an infamous person to whom postulation in his own interest was never for- bidden 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 popu- laris 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 ^. In all these cases in which infames were prohibited from postu- lating the consent of the adversary was not sufficient to establish their claim to appear in this character. Even had they gained such consent, the prohibition was still upheld by the praetor, in his own interest and in that of his court ^ So far we have been considering the disabilities which affected an infamous person in consequence of his in- capacity to be a cognitor or procurator : a result which in itself follows from the limitation on the right of postu- lation, which was the main object of the praetorian infamia. Another and much less accountable consequence of infamia was that a person so affected could not give a cognitor or procurator. It is difficult to connect this disability at all closely with the fact of limitation in postulation : and various theories have been framed to account for it. It has been held that it was done in the interest of the opposite party, that the defendant could with more success ' Cod. iv. 39, 9 ' utiliter earn movere suo nomine conceditur. ' 2 Dig. xlvii. 23, 4. ^ Gains in Dig. iii. 1. 7 ' quos prohibet praetor apud se postulai-e, omni- raodo prohibet, etiamsi adversarius eos patiatur postulare.' i6o INPAMIA. [chap. take exception to the acts of an infamis when the latter appeared in person : or that the capacity of being repre- sented would have given the infames the opportunity of avoiding open disgrace and reprehension. Whatever the immediate motive may have been, it must be taken as in some sort a penalising measure, representation being re- garded as a privilege not to be extended to unworthy persons^. It is only very distantly connected with the limitation in postulation, and Karlowa is no doubt right in holding that the list of those who could not give was by no means necessarily coincident with the list of those who could not be cognitors and procurators^. We know from the Vatican Fragments that the edictum cognitorium contained two parts, or, as it is expressed, that there were two edicta cognitoria. The first referred to those who could not be cognitores, the second to those who could not present cognitores. It is in this second list that the persons labouring under the disability we are considering must have come : but this second list may have been wider than the first ; for women, although they cannot be cognitors, since they are unable to postulate for others at all, may yet give cognitors ; and Karlowa is no doubt right in thinking that this is the origin of the list of Tnulieres famosae, fragments of which have come down to us. These limitations in the matter of representation, by which the infames were afiected, were maintained, chiefly ' We may agree with Karlowa (Zeitschr. f. E. G. ix. p. 223) that it is an anachronism to base this disability on such a principle as that stated in Nov. 71 praef. ('fertm- enim quibusdam constitutionibus, ut nuUi clarissimorum liceat per se litem exercei-e, sed per procuratorem om- nino'); but yet representation may always have been regarded in the abstract as a privilege, the exception and not the rule. How much this privilege depended on the discretion of the magistrate is shown by Papiuian in Dig. iii. 1, 9. 2 Zeitschr. f. E. G. 1. k-.. VI.] THE DEVELOPED CONCEPTION OF INFAMIA. l6l by the judicial power, but in part also by the adversary. The latter could not be compelled to contest an action with a procurator who was infamis, or with a procurator appointed by an infamis. He could put forward an exceptio, which the praetor was bound to grant. These eaxeptiones, partly on account of their infrequent use, partly on account of theii" dilatory nature and the fruitless controversies to which they gave rise, were finally abolished by Justinian^. As we know that the limitations in pos- tulation were still upheld in the law sanctioned by Justinian, this removal can only mean that the motion for rejection of the infames was taken out of the hands of the adversary, and entrusted entirely to those of the presiding judge. When we turn from these disabilities in the matter of procedure to consider whether any special disabilities as regards civil rights in general were imposed on the infames, we find ourselves again confronted by the difficulty that met us in the early history of the infamia. We shall find many civil disabilities imposed on indi- viduals in consequence of some stain on their moral character or some defect in their social standing ; but how far the persons bo enumerated are coincident with the list made out by the praetor and developed by the imperial legislation is in most cases a matter of doubt. We shall have to consider the probability of their identity in each particular case. But it is clear that a civic disability, ' Inst. iv. 13, II ' eas vero exceptiones, quae olim procuratoribus propter infamiam, vel dantis vel ipsius procuratoris, opponebantur : cum in judiciis freguentari nullo modo perspeximus, conc[uieacere sancimus ; ne dum de his altereatur, ipsius negotii disceptatio proteletur.' Tie words 'frequentari . . . perspeximus' have been variously interpreted ; but the meaning given by Savigny (Syst. 11. p. 218, note h), ' since they are seldom resorted to (and therefore there is no practical need for their maintenance) ' Is probably correct. M l62 INPAMIA. [Chap. recognised by the State, and resting on moral grounds, is an integral pait of the history of Civil Honour, and as such these cases require discussion, whether we believe that, in treating them, we are dealing with the infames proper or not. We find in the title of the Digest that deals with punish- ments the statement that the traditions of the Roman law had been to inflict a heavier penalty on famosi than on those whose reputation was untouched. This was a natural provision, whether stated ia each given case by the laws or left to the discretion of the judge. It is simply the usually recognised principle that the past record of a condemned man must be considered before punishment can justly be meted out. If it refers to a definite class of infames, the provision is certainly not limited to these, but may be taken as also embracing those whom the Roman law summed up vaguely as turpes''-- But in this connection we may notice a peculiai" suspen- sion of the ordinary guarantees of legal protection which did aflfect certain of the infames. The Roman law of adultery recognised the right of pxivate vengeance for the maintenance of family honour ; it tended, however, to limit the exercise of this right to the father of the household. But the right even of the husband to slay the adulterer was recognised, if the latter was a gladiator, a bestiarius or condemned in a judicium, publicum,, or one of those qui corpore quaestum faciunt^. The Lex Julia de adul- teriis contained, therefore, a particular enumeration of persons, most of these belonging to the class called by • Callistratus in Dig. xlviii. 19, 28, 16, 'majores nostri in omni supplicio severius . . . famosos quam integrae famae homines punierunt.' ' CoUatio 4. 3, I ; 4. 12, 13 ; it was a question whether a Ubertus could slay his patronus if the latter was one of these infames (Dig. xlviii. 5, 39, 9)- VI.] THE DEVELOPED CONCEPTION OF INEAMJA. 163 the praetor in turpitudine notabUes. This is one of the instances in which we find a list, created with a special purpose, and narrower than that fixed by the praetor. Another instance of the framing of such a list introduces us to a disability of considerable importance in the public law of Rome. The right to bring criminal accusations was universal, except where it was restricted by special limita- tions. Such were those created by status, sex, or age, which do not concern us here. But amongst them is one which is in touch with the infamia ; prosecution is forbidden to a class of individuals propter delictum pro- priwm ut infames. This class was a fixed one : and the enumeration of its members is given by Ulpian: it is simply a list of some of the worst cases of the praetor's Edict, including bestiarii, actors and lenones, those found guilty of calumnia, or those who have been pronounced guilty of calumnia and praevaricatio in a criminal court ^: to which were added those who have accepted money for their functions as prosecutors. An important point to notice in connection with this list of Ulpian's is that the extract in which it occurs is taken from his work de adulteriis. It seems probable, therefore, that the list was first framed by the Lex Julia de adulteriis, with special application to that law, but was afterwards made universal. If this is the case it is another illustration of an interesting point in the history of the infamia : the influence namely of the Julian legislation (whether of Caesar or Augustus) in fixing the conception of infamia by employing a list, sometimes as wide as, sometimes ' Dig. xlviii. 2, 4. The distinction between ' calumnia notati ' and ' q^ui praevaricationis calumniaeve causa quid fecisse judicio publico pronuntiatus erit' appears to be the same as that in the praetor's Edict (p. 122) ; to this Macer and Paulus add (ib. 11. 8 and 9) conduct resembling calumnia. M 2 x64 INFAMIA. [Ohap. narrower than, that of the praetor, for the purpose of very various kinds of disqualification. In the title of the Digest (de accusationibus et inscrip- tionibus), in which this list is found, the disability is stated as being universal. Sometimes, however, it is met with in a modified form. Thus, in a prosecution for adultery, in the case of a concurrent accusation of a woman by her husband and her father, the husband was prefen-ed : but he lost this prior right of prosecution if the father could point out that the husband was in/amis or likely to be guilty of collusion 1. The estimate as to what constituted this infamia may have been based on the provisions of the law, but may conceivably have depended to some extent on the discretionary power of the judge. Occasionally, when the public interest was supposed to require it, we find this bar to prosecution removed altogether. An infarais could accuse in cases of treason, or in questions connected with the corn-supply^. But, if the list of infames was in this case a com- paratively narrow one, the extension of the tenninology applicable to this conception is the point specially noticeable in the next civic disability which we have to consider. Ulpian states a principle which seems to have been observed very early in Roman law : namely, that a person of disreputable character could not bring an action for dolus mnalus against a person of honourable character and position, 'since it produced infamia' {cum sit famosa). If by this is meant that no actiones famosae could be brought under such circumstances, it certainly was a serious disabUity, when we consider the extent of such actions. But the disability, whatever its extent may * Dig. xlviii. 5 {ad leg. Jul. de adult.'), 3. ^ Treason (Dig. xlviii. 4, 7) ; ' propter publicam utilitatem ad annonam pertinentem' (Dig. xlviii. 2, 13). VI.] THE DEVELOPED CONCEPTION OF INPAMIA. l6^ have been, did not fall on the infames of the Edict alone ; they are found, or rather their existence is implied, in a mixed company of luxuriosi, prodigi, and viles ^■ It was the same with respect to a curious provision as regards inheritance by which individuals of bad reputation, including the infames, were affected. The formal com- plaiat that might be lodged against a will which violated family obligations without due cause {querela inofficiosi testariienti) was always at the disposal of ascendants and descendants. By two anomalous constitutions of Constan- tine it was open to consanguineous brothers and sisters, if the scripti keredes were tainted by infamia, low moral character or even low social standing^. We must agree with Savigny that this is not a consequence following on any fixed conception of infamia : but that the decision in each particular case as to whether the testament was inoffi- ciosum must have been left to the decision of the judge^. We now turn to a civic disability which had a long history thi-oughout the whole period of Roman law, and which, in one of its aspects, is the oldest disability of the kiad known to us. It is the incapacity to be a witness : and this incapacity may be treated from three points of view : according as it was concerned with evi- dence in public courts of law, with evidence in formal acts of private law, and with evidence connected with testamentary dispositions. We shall see that there was the tendency, which we should expect, to make the limita- tions of evidence in these three cases coincide. Theoreti- cally they were summed up in one general principle : it is ' Dig. iv. 3 {de dolo maid), ii ' et quibusdam personis non dabitur . . . vel luxurioao atque prodigo aut alias vili adversus hominem vitae emendations. Et ita Labeo.' 2 Cod. iii. 28, 7 'si scripti heredes infamiae vel turpitudinis vel levis notae macula adsparguntur.' More fully in Cod. Theod. ii. 19, i and 3. 2 Syst. ii. p. 223. 1 66 INPAMIA. [Chap. only from the point of view of their history that they can be distinguished. The great general principle was that anyone could give evidence, both in criminal and in civil cases, according to the demands of circumstances, except where testimony was legally interdicted or excused ^. Limitation of the capacity for evidence based on character was therefore fully recog- nised, and from the nature of the limitation, it is one that demands a place in the history of Civil Honour at Eome. (i) The incapacity to give evidence in the public courts was, like most such incapacities, created by the special criminal laws of Rome, and was sometimes one of the I provisions of procedure created under the law, sometimes ': one of the formal penalties which it inflicted. As an instance of the first kind of provision we may take the clause of the Lex Julia de vi, which mentioned a class of individuals, closely resembling those of the Lex Julia Municipalis and the praetor's Edict, who were forbidden to give evidence under this law. The prohibition affected anyone who had been condemned in a judicium publicum,, and had not been reinstated, who was in bonds or custody of the State, who had hired himself out to fight with beasts, who had been convicted of taking money for the purpose of giving or refusing to give evidence, and the woman quae palam quaestum faciei feceritve^. There was no mention of the infames here, and there probably was none in any of the criminal laws of Eome. Where special ' Dig. xxii. 5 {de testibus), i, i ' adhiberi quoque testes possunt non solum in criminalibus causis, aed etiam in peeuniariis litibus, sicubi res postulat, ex his quibus non interdieitur testimonium neo ulla lege a dicendo testimonio excusantur.' Cf. Justinian (Nov. go praef.) 'licere autem omnibus etiam valde vilissimis testimonium perhibere et ante nos pro- hibuei-unt legislatores : scilicet multas exceptiones facientes et plurimos excludentes etiam ipso testium nomine vel sehemate.' ^ Dig. xxii. 5, 3, 5. VI.] THE DEVELOPED CONCEPTION OP INFAMIA. 167 laws did not make provisions such as those contained in the Lex Julia, the principle followed was the natural one of estimating evidence according to character and position^; and the application of this principle rested with the judge. He was limited, however, by the provisions of some of the other criminal laws: those, namely, which enacted that anyone condemned under them should lose the capacity for being a witness. The Lex Julia repetundarum enacted that anyone condemned under this law should lose the power testimonium publice dicere^ ; and the prohibition of testimony was also a consequence of condemnation under the Lex Julia de adulteriis ^. The prohibition here probably applied in the first instance only to courts of lawj but there was clearly the capacity for extension to testamentary evidence, which stood on quite a difierent footing *. There was equally clearly room for disagreement amongst the jurists on this point. Ulpian says that one condemned for repetundae can be a witness to a testament; Paulus says that he cannot^- Papioian rules that a man condemned for advItenuTu could not be a valid witness to a testament, and that, by the interpretation of the law, he was in every sense of the word intestabilis^. We see from these instances how very partial was the legal application of this disabihty for evidence based on character and on the fact of condemnation; nowhere is it stated that a ' Dig. xxii. 5, 2 and 3. ' Dig. xlviii. 11, 6 ; i. 9, 2 ; xxviii. 1, 20 ; xxii. 5, 15. ^ Dig. xxviii. 1, 20, 6 ; xxii. 5, 14. 'E.g. women could be witnesses in judicia puMica, but not to a testament. ° Ulpian in Dig. xxviii. 1, 20 ; Paulus in Dig. xxii. 5, 15. * Papinian in Dig. xxii. 5, 14 ' scio quidem tractatum ease, an ad testamentum faciendum adhiberi possit adulterii damnatus ; et sane juste testimonii ofScio ei interdicetur. Existimo ergo neque jure civili testa- mentum valere, ad quod hujusmodi testis processit, neque jure praetorio, quod jus civile subsequitur, ut neque hereditas adiri neque bonorum possessio dari possit.' 1 68 INFAMIA. [Chap. definite list of infa/mes was ever excluded, as a whole, from testimony. (ii) In certain formal acts of private law a similar stress (and one naturally still more important in this connection) was laid on the fact that the witnesses must be of good character and position. A depositum in money claimed by an heir could only be opened in the presence of honourable persons (honestae personae)^, the opening of a will in the absence of the witnesses ought only to be performed before men of the best reputation (intervenientibus optvmae opinionis viris ^), and a pignus or hypotheca drawn up as a written instrument between friends was not so valid as those publice confecta, unless the signatures of three or more witnesses of proved and sound opinion (probatae atque integrae opinionis) were appended to it^. The evidence of the infames proper would almost certainly not have been allowed on such occasions ; but they are not the only persons referred to in the prohibitions. (iii) When we turn to the third category — that of incapacity to be a witness to a testament — we find our- selves dealing with a conception which was one of the earliest in Roman law and one of the strangest in its later developments. This was the conception of a man being intestabilis. A provision of the Twelve Tables enacted that ' anyone who had consented to be a witness or libripens (to a testament transacted per aes et lihram) and had subsequently refused to give evidence when required to do so, should be improbus and intestabilis^.' The primary meaning of intestabilis here was clearly 'incapable of ' Dig. xvi. 3, I, 36. ^ lb. xxix. 3, 7. " Cod. viii. 17 (18), 11, x. * 'Qui se sierit testarier, libripensve fuerit, ni testimonium fariatur {MS. fatiatur, Schoell), improbus intestabilisque esto' (Gell. xv. 13). Improbus has been interpreted in this passage as qui prohare non potest. VI.] THE DEVELOPED CONCEPTION OP INFAMIA. 169 being a witness to a will ' ; the man who- had broken faith on one occasion was not to be allowed another chance of exhibiting the same tendencies ; but, when we consider the excessive importance of personal evidence in this formal act of testament-making, the sanction seems too light, and it is conceivable that even at this time intestabilis had the sense of ' incapable of having evidence given for him in turn ' ; that is, ' incapable of making a will.' That it acquired this meaning in later law is undoubted. Gains indeed tells us^ that 'when a man is created intestabilis by law, it means that his testimony is not to be received, and further, as some think, that he shall not have testimony given for him.' But later jurists have no doubt as to this second meaning being an integral part of the conception. Ulpian, in fact, and the Institutes of Justinian, treat it as primary^. It has already been noticed that, although the rules of evidence in courts of law and those for testa- ments had no necessary connection with each other, yet prohibitions originating with the former were extended to the latter. From an interpretation to the Lex Julia de—adulteriis given by Papinian it even appears that vfbteetmbilis- h&d reached the point of being understood as '-iiica^abla_of receiving under a testament^.' The origin of the conception is natural. It was limited capacity for giving evidence (or benefiting by evidence) based on bad moral character. It was rendered definite, however, by being made part of the formal sanction of ■ Dig. xxviii. 1, 26. ^ TJlpian in Dig. xxviii. 1, 18 ' si quis ob carmen famosum damnetur, senatus consulto expressum est, ut intestabilis sit ; ergo nee testamentum facere poterit nee ad testamentum adhiberi.' Inat. ii. 10, 6 'testes autem adhiberi possunt ii, cum quibus testamenti factio est . . . nee is, quem leges jubent improbum intestabilemque esse, possunt in numero testium adhiberi.' ' Dig. -xsii. 5, 14, quoted p. 167, note 6. 170 INFAMIA, positive law. Thus anyone condemned for a carmen fatnosum, was intestabilis in the fullest sense of the word ^. But, though we are here dealing with a derogation of Civil Honour, we are not deahng with the infames proper; there is not the least trace of their having been intestabiles. As regards evidence in general, Justinian, by one of his Novellae, formulated the rule that witnesses must be either of good station or good character. From the extremely loose wording of the ordinance it is doubtful whether it intended to exclude the infames proper from evidence. It seems rather a general rule meant for the guidance of the judge and leaving much to his discretion ^. We find a special disability, the ground of which approximates to infamia, imposed on certain freedmen under the Lex Julia et Fapia Poppaea. A clause of that law enacted that a freedman, who had two or more children in his power, should be freed from their customary duties and engagements to theu' patronus and his children, except they had been actors or had hired out their services to fight with beasts ^.' ' Dig. xxviii, 1, 18, quoted on preceding page, note 2. ^ Nov. 90, I ' sancimus autem . . . bonae opinionis esse oportere testes et aut carentes hujusmodi derogatione per dignitatis aut militiae aut divi- tiarum aut officii causam, aut si non tales consistunt, ex utroque tamen quia sunt fide digni testimonium perhibere (Greek, 4^' kripaiv 7oCf on KaSearaaiv ci(i6inaToi /iapTvpoinevoi), et non quosdam artifices ignobiles neque vilissimos nee nimis obscenos ad testimonium procedere, sed ut si qua de his dubitatio fuerit, possit facile demonstrari testium vita, quia inculpabilis atque moderata est.' ^ Dig. xxxviii. 1, 37 (Paulus, lib. ii. ad legem JiMam et Papiam). CHAPTER VII. INFAMIA IN ITS APPLICATION TO WOMEN. Women were altogether exempt from the censorian infamia of the Republic, since it was concerned wholly with civic honours, in which women had no share. Neither could they be mentioned in the third Edict which contained the list of the praetorian infames, since this was a list of those who could postulate only in certain cases for others, and women were mentioned in the second Edict amongst those who could not postulate for others at all. And yet there are several mentions in the texts of women being infames, e.g. in a passage of the Vatican Fragments taken from the Edict the woman who violates the rules of mourning is declared infaviis. How they came to be such is a matter of much controversy: and more than one explanation of the fact has been adduced. According to Savigny's theory, which has been usually followed, it originated with the Julian marriage laws. By the Zex Julia, as it has been preserved to us by Ulpian ^, ' We must here accept Mommsen's transposition of the clause corpore qvMestum facientem to its proper place ; which has obviated so much difficulty. With this emendation the words of Ulpian (Fragm. tit. xiii. j run ' lege Julia prohibentur uxores ducere senatores quidem liberique eorum libertinas et quae ipsae quarumve pater materve artem ludicram fecerit ; iidem et ceteri autem ingenui prohibentur uxorem ducere palam corpore quaestum facientem, et lenam, et a lenone lenave manumissam, et in adul- terio deprehensam, et judicio publico damnatam, et quae artem ludicram fecerit : adicit Mauriciauum senatus consultum a senatu damnatam.' 173 INFAMIA. [chap. senators and their descendants are forbidden to marry freedwomen, actresses, and the daughters of actors or actresses. Other freeborn Romans (ingenui) were for- bidden to marry prostitutes, lenae, a woman manumitted by a leno or lena, one caught in adultery or condemned in a judiciwm publicum, actresses ; and, in accordance with a senatus consultum, a woman condemned by the Senate. According to Savigny's theory, it was iirst through this Zex Julia and its interpreters that the conception of infamia, hitherto applicable only to men, was extended to women as well ; and this by a twofold process. The cases of illegal marriage mentioned in that law were for the future treated also as cases of true infamia, and conversely the cases of infamia mentioned in the Edict, so far as they could be thought of in relation to women (as they could be, for instance, in the violation of the rules of mourning) were taken up under the prohibitions of marriage in the Zex Julia. To the question, 'Why should these cases have been introduced into the praetorian Edict about the infaTnes, where they were entirely out of place ? ' Savigny's answer is that it was done because the praetorian Edict about the ivfames was the only place where a list of the infames clothed with a legal aspect was found. The condition which the Edict assumed by these additions is presented by the text of the Vatican fragments ; and the reason why the cases of infamia applicable to women, which are found here, do not appear in the Edict as embodied in the Digest, is that Justinian abrogated the Zex Julia ; hence infamia as applied to women naturally disappeared. The one fatal objection to this brilliant theory is that there could have been no motive or excuse whatever for introducing a list of infamous women into the Edict connected with the title de postulando, which referred only to procedure, VII.] INFAMIA IN ITS APPLICATION TO WOMEN. 173 and to a procedure in this case applicable only to men. The origin of infamia as attaching to women must cer- tainly be praetorian, since it could have had no place in public law. The reason of this infamia can only be satis- factorily explained if it can be proved that there was a place in the praetor's Edict where a list of infamous women would naturally have come in. Such a place has been satisfactorily pointed out by Karlowa^- He connects the infamia of women with the second of the restrictions in postulation which have already been treated ; that is, with the prohibi- tion to give a cognitor or procurator. As women have the capacity to give cognitors, it is in that one of the two edicta cognitoria of which the Vatican Fragments speak, which treated of those who could not give cognitores, that a list of viulieres famosae may have come. Since such a list must have been far older than the Julian law, the cases mentioned in this law may have been in part suggested by the praetor's category — those prohibitions, e.g. which are based on character and standing rather than on birth ; and this may account for the fact that famosae is used of the women debarred from marriage on certain grounds ^, and that, as Savigny has remarked ^, the phraseo- logy of the infamia and especially the word notare, is applied to the women mentioned in the Julian marriage law. It was indeed inevitable that many of the cases should have been mentioned both in the law and in the Edict ; prostitutes *, lenae, the woman condemned in a ' Zeitschr. f. E. G. ix. p. 224 sq. ^ TJlpian, Frag. tit. xvi. 2 'aliquando nihil inter se capiunt ; id est, si contra legem Juliam Papiamque Poppaeam eontraxerint matrimonium, verbi gratia si famosam ingenuus uxorem dijxerit, aut libertinam senator.' ' Syst. ii. p. 519. * Dig. iii. 2, 24 'Imperator Severus rescripsit non offuisse mulieris famae quaestum ejus in servitute factum" (from Ulpian's commentary to the Edict). 174 INPAMIA. [Chap. Judicium publicum, the woman caught in adultery, must have appeared in both. Two other cases of infamia in its application to women, which appeared in the edictwm cognitorium,, have been preserved. The first is a case of calumnia in civil law : and refers to the woman who has been put into possession of the goods of her late husband by a false representation that she is enceinte ^ ; she incurred infamia as deceiving the praetor, but only when she was suae potestatis. If she was under power, and therefore represented by her father, he incurred the nota. The second refers to the woman who violates the rules of mourning. The edictum cognitorium, as represented by the Vatican Fragments, makes the woman infamis (i) who has not fulfilled the rules of mourning for her husband, father, or children; (ii) who, being a widow, and not under her father's power, has married again within the prescribed period of mourning^- The first of these regulations, connected as it was with the old pagan rites of mourning, disappeared at least as early as the Christian Empire ; the second continued in force, in consequence of its importance in preventing doubtfulness of paternity. The effects of the praetorian infamia attaching to women, besides its immediate object, which was to limit the power of putting forward legal representatives in court, may have been similar to the civil-law consequences which affected men who were infam.es, so far as these could be thought of in relation to women. Such would have been the suspicion of their evidence in court, the querela inafficiosi testamenti, the aggravation of punishment. We have seen that many of the women, with whom marriage was forbidden by the ' Dig. iii. 2, 15 (tllpian) ' notatur quae per calumniam ventris nomine in possessionem missa est, dum se adseverat praegnatem (16, Paulus) cum non praegnas esset vel ex alio concepisset.' ' Fragm. Vat. § 320. VII.] INFAMIA IN ITS APPLICATION TO "WOMEN. 175 Lex Julia et Papia Poppaea, were in the strict sense faviosae, as being also included in the praetor's Edict. But the consequences of this marriage law do not belong to the history of Civil Honour, because, so far as we know, the incapacities imposed by this law were reciprocal, and attached as well to the husband who was not infamis as to the wife who was fanwsa. There is one regulation, however, that grew out of the Julian laws, which did apply to certain members of the class of infamous women. It was due to a curious mode adopted by certain women for the purpose of avoiding the penalties of the Julian criminal legislation. Suetonius tells us that in the reign of Tiberius women of bad character, in order to avoid the penalties of the laws, threw off the rights and the dignity of matrons by openly professing the trade of lenae^. The immediate object of this ruse was to avoid the penalties for adultery : and the abuse had to be met by a decree of the Senate *. But it also had, as Savigny has pointed out, another conse- quence : and that was, that such women, whatever their original position, could no longer be affected by the penalties imposed on voluntary celibacy, since they were now lenae, and as such were, by the Julian law, forbidden marriage even with freeborn citizens (ingenui)^. Their celibacy was now, legally speaking, involuntary. To meet this consequence they were, in the reign of Domitian, placed on a level with voluntary celibates, and debarred from receiving inheritances and legacies *- ' Suet. Tib. 35 'feminae famosae, ut, ad evitandas legum poeuag, jure ae dignitate matronali exsolverentur, lenocinium profiteri coeperant.' ^ Papiuiau in Dig. xlviii. 5, ir (,10), 2 ' mulier, quae evitandae poenae adulterii gratia lenocinium fecerit aut operas suas in scaenam locarit, adulterii accusari daniuarique ex senatus eonsulto potest.' 3 Syst. ii. p. 557. * Suet. Dom. 8 ' probrosis feminis leeticae usum ademit, jusque capiendi legata haereditatesque.' Ij6 INFAMIA. But besides this exceptional regulation, which has, strictly speaking, no connection with the infamia, we do meet with special disabilities in private law imposed on one class of infamous women, in addition to the general disabilities which they might share with men. Two con- stitutions of Gratian, Valentinian, and Theodosius, given in the years 380 and 381 A.D., limit the rights of women, who have violated the rules of the ' year of mourning ' to share in intestate inheritances, prohibit their acceptance of other bequests, and forbid them to retain the pro- perty settled on, or bequeathed to, them by their former husbands ^. This is one of those peculiar disabilities, com- moner in the earlier history of the infamia, rarer in the later, by which a special penalty was created to suit a special offence, even after universal disqualifications had been made a consequence of the general category of infamous actions, in which that offence was classed. ' Cod. V. 9, I & 2 ; the first constitution also limits the amount of dowry which such a woman might bring, or of property which she might bequeath, to her second husband. CHAPTER VIII. MODES OF EXTINGUISHING INPAMIA. Op the theory of the censorian infamia, so far as its permanence was concerned, two possible views may be taken. One is that it was in theory perpetual, while subject to reversal by each succeeding censor : but that the power of the censor to rescind his predecessor's acts was treated as legally the exception and not the rule. The other view is that the disqualifications pronounced by the censor were considered as valid only for the lustral period of five years which intervened between his ordi- nances and the appointment of his successor ^ : that the reinstatement of the persons so disqualified was regarded as the rule, and the perpetuity of the infamia as the excep- tion. Whichever of these two views we accept (and there is no dkect literary evidence to decide our preference for either), there is little doubt that the actual procedure of the censorship, so far as the mass of cases that came before it was concerned, coiTesponded rather to the latter than to the former. There must have been comparatively few offences that came before the censorship which deserved a punishment of more than five years' duration. The exceptional cases, in which perpetuity of disqualifica- tion was enjoined by succeeding colleges of censors, tended, 1 This second view is the one taken by Mommsen, Staatsrecht, ii. p. 387. N 178 INPAMIA. [Chap. as we saw, to develope into the conception of the later definite and permanent infamia. The praetorian infamia in its origin may possibly have been subject to variations similar to those of the censorian. The rules of procedure laid down by the praetor were theoretically valid only during his year of office, and might be modified by his successor. It was not inevitable that every praetor should take precisely the same view of the dignity of his court, or of the modes in which this dignity might be infringed. But, when we remember certain facts connected with the praetorian infamia, that the Edict in which it found a place had even a more tralaticiary character than the Edict of any other magistrate in Rome, that the class of infames which the praetors dealt with was less wide and more specific than that of the censors, and remember also the remarkable correspondence between the praetor's list and that of the Lex Julia Municipcdis and other laws, there is a strong presumption that it became defined at a comparatively early period, and that fully two centuries before the redaction of the Julian Edict the praetor's list of the infames was fully formulated. Starting from the assumption that the praetor adhered to a definite list of infaraes in the edictum perpetuum, the question presents itself ' Was there any mode of extinguish- ing infamia in any giv«n instance?' Was it possible, for instance, to restore a man who had been condemned in a judicium publicum, or iorfurtum, to his old position of an integra persona'^ and was this restoration possible in the still more difficult case of a man who had incurred immediate infamy in any of the modes mentioned in the Edict? The question became stiU more important when the stage was reached at which the praetorian infamia was taken up by the State and became the ground of disqualification for office. It is from this double point VIII.] MODES OF EXTINGUISHING INFAMIA. 179 of view, from the point of view both of the praetor's court and of the other consequences which came to attach to the praetorian infamia, that the classical jurists and the imperial constitutions give ub answers to these questions. The possibihty of a remission of infamia was contem- plated in the praetor's Edict. After speaking of the limitation in postulation which he enjoined, the praetor in his Edict concluded with the words ' so far as any of the above mentioned persons have not been restored to their original position^.' The ' above mentioned persons,' to whom the praetor referred, might consist of either of the two classes, whom he had limited in postulation on moral or judicial grounds : that is, the in turpitudine notabiles of the second Edict and the infames of the third: but Ulpian tells us that restitutio in integrv/m could hardly be thought of, or was at least extremely difficult, in connec- tion with the first of these two classes^ : so that the praetor was thinking mainly of his list of infames proper when he spoke of a possible restitution. It is also clear, from the use of the words restitutio in integrum, that the praetor is speaking mainly of one kind of infamia : that is, of the mediate infamia consequent on a judicial sentence, and which might be removed by the quashing of the sentence. The expression has no strict application to immediate infamy : although, as we shall see, there was in the later Empire a mode of abolishing even this : and, when it was removed, there can be no doubt that at that period the limitations in postulation were removed also. ^ 'Deinde adicit praetor : "Qui ex his omnibus, qui supra script! sunt, in integrum restitutus non erit " ' (Ulpian in Dig. iii. 1, i, 9). ' Ulpian in Dig. ib. ' ceterum si ex superioribus (fuerit), diflioile in integrum restitutio impetrabitur.' N 3 l8o INPAMIA. [Chap. There can be no doubt that, when the praetor in the Eepublic used the words (as there is every reason to believe he did) ' Qui ex his omnibus . . . restitutus non erit,' he was thinking mainly of his own power of in in- tegrwni restitutio. But to the classical jurists commenting on the Julian Edict it was natural to raise the question what kind of restitutio was here meant. Pomponius answered the question by saying that the restitution meant was that granted by an indulgence of the Senate and princeps, as High Courts of Justice: it was an inevitable answer, because the complete rescinding of a sentence rested only with these high courts, and came, as time went on, to be vested more and more in the hands of the Emperor. This is not the place to trace the growth of the prerogative of the Emperor in his power of reversing or alteiing a sentence : but, how completely it was taken out of the hands of judges, whether at Rome or in the provinces, and how entirely transferred to those of the Emperor, we learn from many passages of the Digest^- It is natural therefore that, as regards the power of the praetor in this respect, the opinion of the jurists was that his restitution was only valid in the case of the infames, if it followed the ordinary rules which directed the prae- torian restitution in other respects : in other words, if the praetor, following his ordinary rules, procured by in integrum restitutio the acquittal of one who had been ^ Dig. xlii. 1, 45, i, in increasing or diminishing a penalty 'sine prinoipali auctoritate nihil est statuendum ' ; cf. Consultatio, 7, 2. Dig. xlviii. 18, I, 27 ; the praeses provinciae has not the power resiitvere. Cf. xlviii. 19, 9, II ; Dig. 1. u. 27 'nonnulla exstant prineipalia reseripta, quibus vel poena eorum minuta est vel in integrum restitutio concessa.' Dig. xlvii. 2, 64 (63) 'non poterit praeses provinciae efficere, ut furti damnatum non sequatur infamia ' (i. e. probably in the case of a pemmiaria damnatio as mentioned in Dig. xlviii. 19, 10, 2) ; the passage no doubt means to imply that the princeps can do so. viil] modes of EXTINGUISHTNG INFAMIA. l8l condemned in a famosum judicium, such a man was not infa'mis, according to the opinion of Pomponius^ The legal principle underlying this extinction of mediate infamia is that restitutio in integrum quashes a sentence : for infamia does not depend either on a crime or on the infliction of a punishment, but only on a sentence. This accounts for the fact that remission of a penalty granted by the Emperor through a generalis indulgent ia or generalis abolitio does not have the effect of averting the infamy which followed the sentence inflicting that punish- ment^. But such an indulgence might no doubt contain a clause specially remitting the infamia. The final form which the remission of infamia assumed was, therefore, as follows. Mediate infamia could be extinguished by a restitutio in integrum granted by the Emperor, and probably also by an abolitio infamiae appended as a special grace to an indulgence remitting a penalty. Immediate infamia, on the other hand, which did not depend on a sentence, could only be removed by a special benefit {heneficium) of the Emperor. This was known as abolitio infamiae, and is often referred to in the legal texts ^ It might sometimes be conditioned. For instance, if a woman had concluded an over-hasty marriage, and had male or female children by her first husband, the infamia that followed her violation of the rules of mourning could only be remitted if she made over half the property she possessed at the time of her second marriage to the children of the first *» ' Dig. iii. 1, 1, lo. 2 Cod. ix. 43 {de generali aholitione), 3 (Valentinian, Valens, and Gratian, 371 A. D.) ' Indulgentia, patres conseripti, quos liberat notat nee infamiam criminis toUit, sed poenae gratiam facit.' Cf. Cod. ix. 51, 7. ' Cod. i. 32 (31), 33, 'perpetua infamia inustus nee speciali quidem rescripto notam eluere mereatur'; Cod. ix. 8, 5. In Cod. vi. 56, 4 it is spoken of as infamiae abolitio, and is conferred by an imperiale henefldum. * Cod. vi. 56, 4, I. l82 INl'AMIA. [Chap. We have seen that the judge has no power to avert the infamia following on a sentence which he has pronounced. This rule is absolute. But it was felt to be inexpedient and unwise to take wholly from the judge, who alone could know all the merits of a case, the power of remit- ting this terrible disqualification. Hence the curious principle was developed that the judge could remit the infamia which followed the ordinary sentence imposed in a given case, by pronouncing a heavier penalty than that recognised by custom or by law^. The principle was recognised both in civil actions (at least where these were concerned with delicts) and in criminal cases. The proce- dure was spoken of as a transactio, and was thus regarded as an agreement between the judge and the offender, the latter choosing between the lighter sentence with infamia and the heavier sentence without it. Some modern writers have stood aghast at this very anomalous procedure : and have declared it to be in direct conflict with the principle of Roman law that the judge has no discretionary power in imposing a sentence, to be in antagonism with the principle clearly stated by Papinian that ' the judge decides the fact and not the law ^.' ^ Ulpian in Dig. iii. 2, 13, 7 'poena gravior ultra legem imposita existimationem conservat.' ' Dig. 1. 1, 15 'cum faoti quidem quaestio sit in potestate judicantium, juris autem auetoritas non sit,' quoted also by Marcian in Dig. xlviii. 16, r, 4. The statement of Macer in Dig. xlvii. 10, 4, which has been quoted as expressing the same principle, is not to the point ; it refers to the en-or of a judge by which infamia has been improperly avei-ted. Equally little can be concluded from Maeer's words in Dig. xlvii. 2, 64 (63) ' non poterit praeses provinciae efScere, ut furti damnatum non sequatur infamia.' We do not know the context here ; it may refer to a pecuniaria damnatio, such as that mentioned in Dig. xlviii. 19, 10, 2, which is also from the second book of Macer de publids judiciis. Now an increase in a money-penalty never remitted infamia ; see on this TJlpian in Dig. iii. 2, 13, 7 (if in the ease of furtum a heavier money-penalty has been exacted, e. g. four times for double the amount, ' hanc rem existimationem ei non conservasse, quamvis, si in poena non pemniaria mm onerasset, transacium cum eo videiur'). VIII.] MODES OF EXTINGUISHING INPAMIA. I83 But the jurists Ulpian, Macer, and Papinian himself state the principle with perfect clearness. It is represented as being applicable to all classes alike ^ ; the remission of infamia thus eflFected may restore a decurion to his order ^ or a soldier to the ranks ^, when the sentence had been completed: although the offence for which they had been condemned would, if the ordinary penalty had been imposed, have involved perpetual disqualification for these functions. One illustration given us is the actio famosa of theft; if a corporal punishment had been imposed in place of the usual pecuniary compensation, the man so condemned was not infamis^. On the other hand, the principle is equally clearly stated, that a diminution of the penalty fixed by law cannot be employed as a means of averting infamia. From the words of Papinian alone* we can draw the conclusion, to which in any case we should be forced, that while the increase of the penalty, for the purpose of averting infamia, was not regarded as an instance of the judge's failing to carry out the sentence fixed by law, the diminution of the penalty was regarded in this light ^. The meaning of the anomaly (if it be one) ^ Macer in Dig. xlviii. 19, 10, 2 'in personis tarn plebeiorum quam decurionum illud constitutum est, ut qui majori poena adficitur, quam legibus statuta est, infamis non fiat.' ^ Papinian in Dig. 1. 1, 15 and 2, 5. ' Dig. xlix. 16, 4, 4. * Dig. xlviii. 19, 10, 2. * The above quoted dictum of Papinian (Dig. 1. 1, 15) comes immediately after tbe words ' minoribus vero, quam leges permittunt subjectos nihilo minus inter infames haberi,' and clearly only refers to the case of the lesser penalty. ' An instance of the application of this mode of averting infamia is known to us from a very obscure constitution of Severus and Antoninus, A.D. 198 (Cod. ii. 11 (12), 4) 'si Posidonium in tempus anni relegatum secundum sententiam non exoessisse proconsulis probaveris, quinque annis exilio temporario damnandum inter infames haberi non oportet, quando sententiae severitas cum ceteris damnis transigere videatur.' The correction which has been suggested, 'relegandum' for 'relegatum,' and 184 INPAMIA. [chap. is not very far to seek. The incidence of the infamia was largely due to historical causes, and in certain cases may have seemed hardly equivalent to the offence which incurred it : while the suitability of its application must have depended largely on the circumstances of the person and on the facts of the case. It was convenient, therefore, to leave some discretionary power to the judge : but this could not be given in the form of a power to remit infamia, which had come to be a prerogative of the Emperor. The exceptional and perhaps not very perfect system of im- posing an equivalent sentence was, therefore, substituted in its stead. This attempt to restrict the incidence of the permanent disqualification of infamia prepares us for the revival of the theory of temporary disqualification, which reappears again in the second century of the Empire. The earliest ordinances on the subject appear to be those of Hadrian, and the practice was continued by his successors. This temporary disqualification is known to us in connection with the disabilities imposed on advocati and on the senators of municipal towns {decuriones). It is treated in relation to both of the aspects of the developed concep- tion of infamia, the praetorian rules of postulation and disqualification from office. Thus, by a rescript of Antoninus Pius, the advocate who had been forbidden the exercise of his functions for a period of five years, recovered, after this interval had elapsed, the unrestricted right of postulation^; by a rescript of Hadrian the same right was restored to a man who had returned from exile ^: but in this latter case we must suppose that the exile had followed as a consequence of an extraordinary sentence, ' damnatum ' for 'damnandum,' seems to be the only reading which can restore meaning to this passage. ' Papinian in Dig. iii. 1, 8. " lb. VIII.] MODES OF EXTINGUISHING INFAMIA. 185 which did not of itself involve infamia^- There is nothing exceptional in the assertion of this principle. It only- shows, what has already been abundantly demonstrated from other sources, that the conception of infamia was becoming a fixed and definite one, and it was necessary to distinguish it from other kinds of merely temporary disqualification. This distinction is specially marked in the case of exclusion from the ordo decurionum. Tem- porary removal from the order was recognised as a conse- quence of many kinds of conviction ; but it made the greatest difference whether this conviction in itself involved the definite infamia or not. Removal in consequence of a reason which in itself involved infamia, was regarded as necessarily permanent in its character ; unless the infamia had been averted by the form of transactio already discussed ^ : on the other hand, if the ground of the removal was not of this character, we find indeed that the temporary exclusion did produce the effects of a temporary infamia, in the sense that the person so affected could not obtain other offices (honores) while the exclusion lasted ^ ; but that, when this period of enforced retirement had elapsed, he could both re-enter his order and fill other offices of state *- * This follows as a consequence from the principle quoted from Papinian in the next note. ' Papinian in Dig. 1. 2, 5 ' ad tempus ordine motos ex crimine, quod ignominiam importat, in perpetuum moveri placuit. Ad tempus autem exulare jussos ex crimine leviore velut transacto negotio non esse inter infames habendos.' ^ Cod. X. 61 (59), 2 (Gordian) 'ad tempus exsulare decurio jussus et impleto tempore regressus pristinam quidem dignitatem reeipit, ad novos vero honores non admittitur, nisi tanto tempore his abstinuerit quanto per fugam afuit.' Cf. Papinian in Dig. 1. 1, 15. * Cod. ib. I {pars edicti imperatoris Antonini) ' quibus posthac ordine sua vel advocationibus ad tempus interdicetur, post impletum temporis spatium non prorogabitur infamia.' Cf. Dig. 1. 2, 3. CHAPTER IX. MODIFIEB FORMS OF DISQUALIFICATION BASED ON CHARACTER AND STANDING. A DESCRIPTION of the developed conception of infamia, its causes and its consequences, by no means exhausts the subject with which the history of Civil Honour has to deal in the later stages of Koman public and private law. This has already been made apparent in the fact that many of the disabilities which we have discussed as falling on the infames, were also imposed on many who were not strictly included in this category, but were assimilated to it on moral grounds. Two forms of disqualification yet remain to be treated: the first are those which were based on general defects of moral character, and which affected a vaguely defined class of individuals, in which the inf amies were not necessarily included ; the second consist of those which were based, not on character, but on occupation and social standing. § I. Disqualifications based on character. It is hardly necessary to poiat out how very familiar the idea was to Roman law of disqualifications based on the estimate formed of a man's character by a magistrate in authority. It was the essence of the censorship; but it affected a department of state even more important than that which the censors controlled — the admission to MODIFIED POEMS OF DISQUALIFICATION. 1 87 Tionores. The rescript of Constantine by which the infames were forbidden admission to office includes in the list of the prohibited those quos scelus aut vitae turpitudo inquinat^. This was no innovation, but merely the renewal of a practice familiar to the Republic. It is clear that the application of such a principle, which involved a moral estimate not defined by law, must have rested wholly on the discretionary power of the magistrate who controlled the admission to honores, and was limited only by the respect for precedent and the moral necessity which the magistrate was under of consulting his consiliuTn in all cases of special difficulty^. Cicero tells us that the eensona notatio was no legal bar to a man's standing for a magistracy ; yet undoubtedly the presiding consul would feel himself justified in refusing to receive the name of a candidate who was labouring under the nota. The Republican magistrate claims the right not only of refusing , to receive the candidate's name ^, but of refusing to return him as elected*, even if he receives a majority of votes at I the coTnitia. This mode in which the rejection was exer- cised remained the same throughout the whole of Roman history; that is, it must have rested wholly with the officials in authority whether, in each particular case, they ' Cod. xii. 1, 2. The legal texts distinguish between the infamia of opinion and that of the Edict ; Dig. xxxvii. 16, 2 : Cod. ix. 9, 24 (25). 2 Ascon. in or. in tog. cand. p. 115. The candidate was accused on a criminal charge, The procedure of the consul shows that there could have been no law on the subject ; although, that the reus delatus could not seek hcmores was a fixed principle of later municipal law (Dig. 1. 4, 7 ; cf. 1. 1, 17, 2 and ib. 21, 5). ' Veil. ii. 92 ' (C. Sentius Satuminus) consul (19 b. c.) . . . quaesturam petentes, quos indignos judicavit, profiteri vetuit.' * Val. Max. iii. 8, 3 ' quum an Palicanum suffragio populi consulem creatum renuntiaturus esset interrogaretur (Piso consul 67 B.C.) "non renuntiabo," inquit.' We may contrast with this discretionary power of the presiding magistrate the prohibition of the remmtiatio of legally disqualified candidates in the Lex Jidia Municipalis, 1. 132. l88 INFAMIA. [Chap. thought there were sufficient grounds to justify it. There is reason to believe that at Rome itself, the magistrate, in the Republic and early Principate, exercised a freer right of rejection than the officials who admitted to honours in the municipal towns: since offices were here regarded rather more in the light of burdens than of honours, and the tend- ency might have been to limit the moral disqualifications to those contained in laws, such as the Lex Julia Municipcdis. In the later Empire it becomes a duty imposed alike on all officials who have control over the admission to honores. Another disqualification which afiected those distinguished for turpitudo, which is the usual expression for moral depravity employed in our texts, was exclusion from the position of a judex. We have not here to deal with specific disqualifications from the bench, such as those discussed above in connection with the infames'^, but with disqualifications based on a more general estimate of character. The praetor in the Republic could, as has been already remarked, exercise a very free choice in the selection of his panels, and might reject those whom he thought unworthy of the post. In the Principate such a supervision was exercised by the Emperor as well as by the praetor^. In the later Empire there is but little question of the choice of Judices by a special magistrate. We are, therefore, not surprised to find, at a time when the word had almost changed its meaning, a specific regulation emanating from the Emperors Gratian, Valentinian, and Theodosius in 380 a.d., enacting that those judges who had proved themselves unworthy of their position should be stripped of their dignity^. The question as to the limita- tion of the right to give evidence in courts of law has ' P. 156, cf. Dig. i. 9, 2. " Bethmann-Hollweg, Civilprozess, § 65. ' Cod. xii. 1, 12 'judioes, qui se furtis et seeleribus fuerint maeulasse convicti . . . honore exuti inter pessimos quosque et plebeios habeantur.' IX.] MODIFIED FORMS OP DISQUALIFICATION. 189 already been sufficiently discussed in connection with the infames. It was seen that in all cases the admissibility of evidence, so far as not provided for by positive laws, depended wholly on the estimate of the judge ^. Hitherto we have been considering the conception of turpitvdo from the point of view of public law. But it played quite as large, if not a larger, part in the private law of Eome. There was ample room for the creation of such a conception in the free working of the praetor's court ; it was inevitable that, in framing rules which were meant to facilitate the exercise of rights, he should make the application of them depend in certain instances upon character. This conception, which has been sometimes called iiifamia facti by modern jurists to distinguish it from the more definite and codified infamia (infamia Juris), was taken up and applied by the classical jurists and played its part in the legislation of the later Empire. The principle of its application was precisely the same in private as in public law. The existence of turpitvdo , in each particular case was based on the estimate of character formed by the judge. Thus to the singular question that has been raised, whether turpitudo, like infamia, was permanent, no simple answer can be returned. It rested entirely with the judge to decide whether a bad record in the past had permanently afiected a man's character, or whether a reform had taken place : although this estimate of the judge could hardly be employed in the particular cases in which members of this category corresponded to the in turpitudine notabiles of the Edict. In other cases, in which this conception assumed a more definite form through being followed by fixed legal dis- abilities, turpitvdo was sometimes regarded as ineradicable ; for the purposes of the Lex Julia et Papia Pop2Mea ' Pp. 167 and 170. 190 INFAMIA. [Ohap. a prostitute's character could not be re-established by her subsequently resorting to a more honest mode of life ^. The legal texts furnish abundant illustrations of the application of this conception of turpitudo, which is at once so real and so vague, by praetors, jurists, and emperors. We are not surprised to find it intimately connected with the law of guardianship (tutela), which played so large a part in the history of the infamia proper. Although in the case of a testamentary tutela guardians were not compelled to give security for the safety of the property they administered; yet the praetor under these conditions preferred to appoint as tutores those who were willing to offer security. But the advantages of this guarantee might be outweighed by blemishes of character : and the rule was not maintained in the case of a man of bad antecedents, who might be able to offer sui-eties, but whom it would be exceedingly dangerous to appoint as sole administrator ^. The judge has here to decide between moral and material advantages as a guarantee for just dealing. In another and more remarkable regulation con- nected with the administration of goods, the rights of the father are themselves suspended on grounds of character. In an intei-pretation given by Constantine, in 321 a.d.^ we find the principle restated, that a father who had been deported and restored recovered the patria potestas and the administration of the goods of his son; but the property was not to be entrusted to his absolute direction if, from prodigal or dissolute habits, he was considered likely to squander it. Another illustration of similar regulations made for the protection of children was connected with the ' TJlpian, libra prima ad legem JiMam et Fapiam in Dig. xxiii. 2, 43, 4 • non solum autem ea quae facit, Terum ea quoque quae fecit, etsi facere desiit, lege notatur ; neque enim aboletur turpitudo, quae postea intermissa est.' ' TJlpian in Dig. xxvi. 2, 17, i. ' Cod. ix. 51, 13, 2. IX.] MODIFIED FOEMS OF DISQUALIFICATION. 191 exliibitory interdicts of the praetor. In the case in which a writ de liheris exhibendis had been issued and obeyed, the child, if it was iTnpuhes, was entrusted to the custody of the professing father until the case was heard, but only on the condition that he was a man of good character^. To this category belong the many provisions for the interdiction of spendthrifts, which seem to have played a part in the very earliest Roman law, and are indeed based on the ancient theory that property belongs not so much to the head of the family as to the family itself^. Another special prohibition of a legal right, with reference to property which we meet with in our texts, is the refusal of an action for the recovery of a dowry to a father if his character leads to the presupposition that he would squander it when recovered ^- We find the conception in a more extended form — sometimes approximating to the idea of lowness in social standing — influencing other points of procedure. An actio injuriamm pursued in the interest of a son under power was granted usually to the father, 'but sometimes it is thought that, even if the father remit the action, it should be given to the son, as for instance, if the father be a low and abject being, the son honourable ; for such a parent should not be allowed to measure an insult done to his son by the standard of his own low character*.' Such a regulation as this applies perhaps to low social standing — the legal disabilities consequent on which we shall have to consider in the next section — as well as to character. The same is true of the conditions under which the querela inojfficiosi testafnenti might be lodged by consanguineous brothers and sisters * — conditions which have already been discussed in connection with the infames. We also find ' Ulpiau in Dig. xliii. 30, 3, 4. ^ Muirhead, Roman Law, p. 32. " Ulpian in Dig. xxiv. 3, 22, 6. * XJlpian in Dig. xlvii, 10, 17, 13. " Cod. iii. 28, 27, see p. 165. 19a INFAMIA, [chap. turpitudo made a valid ground for excluding a daughter from an inheritance^. In betrothal and marriage the conception played an important part, as it well deserved to do. Betrothal was based on consenb; but the consent of the father was taken as the consent of the daughter. Her only power of dissent was based on her showing that the husband proposed by her father was a low and disrepu- table person^. By one of the Novellae of Justinian badness of character was recognised as a valid motive of divorce for a woman against her husband ^. We have already seen that the rigorously scientific character of Eoman law in its codified form, which left so little to the discretion of the judge, was modified in connection with the infamia, in the particular cases in which an exemption from this penalty seemed desirable*. The modification which has just been discussed, the theory that disabilities in private law should be based on an individual estimate of character, was a healthier one stLU. It did not proceed on the paternal theory of protecting the individual against himself, but aimed only at the protection of the weak, where wrong might ensue from a too rigorous application of the principles of law. Codification was necessary to the infamia at a time when political disabilities were imposed by a central despotism over a world-wide Empii-e. Where private interests were at stake it would have been injurious, and the vagueness of the Eoman conception of turpitudo is its real strength ; the vaguest was the fittest expression which this form of equity could assume. ' Cod. iii. 28, ig (Diocletian and Maximian, a. d. 293"). " XJlpian in Dig. xxiii. 1, la : another motive, difference of religious belief, was added in the Christian Empire (Cod. v. 1, 5, 3). ' Nov. 22, 15.^ » P. 183. JX.] MODIFIED POEMS OP DISQUALIFICATION, 1 93 § 2. Disqualifications based on standing. We have now to consider certain disqualifications in public and private law which the Eoman State considered a necessary accompaniment of a low degree of social standing. Such disqualifications are certainly based on a supposed absence of existimatio or dignitas, although the absence here is rather the result of social prejudice than of moral censure. There is always, however, a quasi- moral significance in the Roman conception of vilitas, as in the Greek conception of ^avavaia. Husbandry, according ' to Roman notions the noblest mode of winning a liveli- hood^, did not disqualify from ofiice, on however small i a scale it might be practised. But a profession for which i pay was given was in the Republic a bar to all honours ^, \ and all trading on a small scale was under a social ban, , although we cannot say that it was followed by the same political consequences. The notion underlying this Republican prejudice must have been the same as that which Aristotle puts into philosophical language when he says that the free man is he who lives for himself and not for others : the taking of pay was supposed to destroy that ; independence of character which became the citizen of ' a free state. Roscius almost ceased to be an actor in the eyes of the Roman world, because he would not sell his gifts, just as Polygnotus escaped the charge of ^avavcria in the Greek world, because he painted for the pure love of his art. And the pettier the gain, the pettier were the means which it was thought would be taken to secure it ; ' lying,' says Cicero, 'is the essence of retail trade.' Some par- ticular trades were looked on with special disfavour ; the purveyors of the amenities of life {ministri voluptatum) ' Cio. de Off. i. 42, 150. " See p. 12. J 94 INPAMIA. [chap. were considered a degraded class; the Koman connected unpleasant associations with the collectors of port dues and with money-lenders, and took a gloomy view of auctioneers and undertakers ^- We have ah-eady seen that the exercise of a trade or pro- fession debarred from office during the Republic : and this exclusion from office necessarily kept those who followed this mode of life out of the Senate at Rome ^. This must have been the rule throughout the Principate, although the ener- getic rescripts of the later Emperors show that it must have been much neglected during the later portion of this period. By a constitution, similar to that by which Constantine had debarred the infames and all qvx)8 vitae turpitvdo inquinat from office, Constantius excluded from dignities every one en- gaged in a small trade, and the members of other professions which he specified^- This may be taken as a priaciple which was theoretically recognised throughout the whole of Roman history, but only in application to the offices of the central government. It never applied to municipal offices, after the qualifications to these were controlled by Rome. Caesar's municipal law only excluded individuals exercising certain specified professions from the hoTwres and ' Cicero (1. c.) after enumerating the ' quaestus, qui in odia hominum ineurrunt,' accounts as sordidi those 'qui mercantur a mercatoribus, quod statim vendant. Nihil enim proficiant, nisi admodum mentiantur. ' He then mentions the ' artes . . . quae ministrae sunt voluptatum.' To all these he opposes (i) the arts requiring pmdmtia or which are of great utility, such as medicine, architecture, philosophy, (2) merchandise on a large scale, and (3) the best of all modes of living, agriculture. ' A Lex CUmdia — a plebisdtum of 218 B.C. — sought to prohibit senators from engaging in maritime trade ; but the law was antiqua et mortua by the time of Cicero (^in Verr. v. 18, 45). ' Cod. xii. 7, 6 'ne quis ex ultimis negotiatoribus vel monetariis (generally understood as 'minters,' 'coiners') abjectisque ofSeiis vel deformis minigterii stationaiiis omnique officiorum faece diversisqne pastis turpibua lucris aliqua frui dignitate pertemptet. Sed et si quis meruerit, repeUatur.' IX.] MODIFIED FOEMS OF DISQUALIFICATION. 195 the local senates ; and in the Empire small traders, although submitted to degrading punishments, were not debarred either the decurionate or the municipal honores. This was a necessary permission considering the extreme diffi- culty of getting municipal offices filled at all: and we are told by Callistratus that the standard of qualifications should vary according to the ease or difficulty with which candidates were found in the different states ^. Disqualifications which were based on the exercise of a trade or profession were by their very nature not perpetual. They were removed as soon as the trade or profession was abandoned. This was the principle of Republican Rome and of Caesar's municipal law, and the same condition seems to have been recognised during the Empire ^. There is as striking an absence of strictly technical terminology to express this disability as that which we have found in other departments of Civil Honour, which throughout its history may almost be called a conception without a name. The individuals disqualified seem never to have been called infames ; sometimes they are spoken of as viles, sometimes as humiles, according as the disgraceful profession or the low standing is the idea specially promi- nent at the time: but these two words do not exclude a variety of other names, aU equally vague but of somewhat kindred meaning ^. ' Dig. 1. 2 {de decur. etJU. eor.), 12. 2 Lex Jul. Munic. 1. 105 'neve eum — dum eorum quid faciet— renun- tiato ' ; cf. Cie. ad Fam. vi. 18, written in 46 b. c. (quoted by Savigny, Verm. Schr. iii. p. 338) ' simul accepi a Seleuco tuo literas ; statim quaesivi e Balbo per oodicillos, quid esset in lege. Kescripsit, "eos, qui facerent praeconium, vetari esse in decurionibus ; qui fecissent non vetari." ' ' Dig. 1. 2, 12 ' viles personas ' ; Dig. iv. 3, 11, i ' humilis,' as opposed to one 'qui dignitate excellet,' as 'plebeius' to 'consularis.' Dig. xlviii. 19, s8 'tenuiores homines' as opposed to ' honestiores.' Cod. xii. 1, 12 2 196 INPAMIA. [Ohap. To the class of disqualifications expressed by these words one more may be added, which belongs, at least conceivably, to the same category ; it is the disqualification which might be based on illegitimacy. At first sight this may seem a question rather of status than of existimatio, but really it is one that lies on the borderland between legal and social standing. It is quite conceivable that a State might recognise most of the legal rights of the illegitimate and yet debar them from certain honours. As a matter of fact this theory was but slightly pressed at Rome. It is true that at Rome the spurii filii, or siTie patre filii, as the abbreviation of these words came afterwards to be inter- preted^, were at one time debarred from Roman magis- tracies ; but this disqualification rested rather on grounds of status, since at that time they were not accounted free- born {ingenui). Subsequently, perhaps as late as the year 189 B.c.^, they were placed on a level with the ingenui, and this disability was removed. In the Principate, however, it appears that spurii were limited as a rule to the four city tribes ^ ; they were subject, therefore, to a limi- tation of rights somewhat similar to that which affected actors and the sons of actresses *. When we turn to municipal offices we find no trace of this disqualification being observed. It is true that ' pessimi et plebeii' ; Justin. Nov. 90, i 'et non quosdam artifices ignobiles neque vilissimos nee nimis obscures.' ' Mommsen (Staatsr. iii. p. 72, n. 4) thinks that the s(ine) p{atre) flii of Gaius (i. 64) and Plutarch (Qu. Eom. 103) was a mistaken conjecture of the later jurists based on the abbreriated form of sp{uni) filii. Later, when they were reckoned ingenui, the designation was read as Sp{urii) filii, sons of an imaginary father Spu/rius (Festus s. v. nothum). ' If with Mommsen (Staatsr. iii. pp. 423, 423) we believe it to have been an effect of the Terentinum plebisdtum. ^ Mommsen, Staatsr. iii. p. 443. * These appear to be found mainly in the one tribe Esquilina (Mommsen, I.e.). IX.] MODIFIED POEMS OP DISQUALIFICATION. 1 97 separate municipia may have enjoined regulations of their own with reference to this class ; but Caesar's municipal law did not disqualify the spurii from office or from the Senate, and such disqualification was not recognised in the Antonine period^- The tendency of imperial legislation, under the guidance of the jus naturale, was in fact to remove as far as possible the disabilities arising from illegitimacy ^- The fact of vilitas, therefore, if we may use the term, was a bar to the offices of the central government, but not to municipal offices ; and it could not be thought of as a ground of exclusion from the army, since the profession of a soldier was, in the Empire at least, legally inconsistent with the exercise of any other trade or business ^. There is a disqualification in public law which we have already had occasion to notice as affecting both the infames and the turpes ; namely the limitation of the right to prosecute. It cannot be said that this limitation was imposed on the viles or humiles in general; but the possession of a certain amount of wealth was considex'ed a condition necessary for the exercise of this right. Poor men were, therefore, excluded from this political privilege, except in those cases in which their own interests were directly concerned*- Again the principle already noted ' Ulpian in Dig. 1 2, 3 ' spurios posse in ordinem allegi nulla dubitatio est. Sed si habeat competitorem legitime quaesitum, praeferri eum (oportet del.), divi fratres . . . rescripserunt.' ' As shown, e.g. by the Orphitian senaius consultum, which gave children, legitimate or illegitimate, a prior right of succession to their mother, and by the modes of legitimation of children born out of wedlock introduced by Constantino and his successors. 2 Vita Maximinorum 8 (a.d. 235-238) ; Cod. xii. 35 (36), 15 (Leo, a.d. 458) ; soldiers are here forbidden agriculture or trade, but only on the ground that such occupations interfered with their military duties. • Dig. xlviii. 2, 10 '(prohibentur accusare) nonnulli propter paupertatem, ut sunt qui minus quam qulnquaginta aureos habent.' In all these 198 INFAMIA, [chap. that certain persons could not bring an aMio doli, or possibly any action involving infamia, against honourable persons, was applied to men of low social standing as well as to those of low character ; and this was a principle early recognised in Roman law ^. But the law of the Empire went further than this ; it cannot be said that all men were equal in its eyes so far as its infliction of penalties was concerned: and the man of small estate might be submitted to degrading punishments from which the more honourable classes were exempt^. A more defensible provision was one concerned with the infamia itself. The imposition of infamia could have but little effect on a man practically debarred from all honours by his social station. A judge was, therefore, entitled to pronounce in certain cases a severer penalty in place of a sentence involving loss of existimatio ^. Finally, the principles regulating the admissibility of evidence, and the provision connected with the querela inofficiosi testamenti, which have been already treated, applied to individuals of low social standing as well as to the infames and the turpes : and under the same conditions which we have before described ; that is, it depended entirely on the discretion of the judge, and on the merits of the case, whether he should allow the testimony or admit the validity of the petition. The conception here discussed was clearly not confined to men ; in its private law effects, and in one at least of its consequences in public law — that which permitted degrading punishments — it was equally applicable to excepted cases the principle is held (Dig. ib. 11) 'si suam injuriam exequantur mortemve propinquorum defendent, ab accusatione nou excluduntur.' ' TJlpian in Dig. iv. 3, ii, i ; he adds ' et ita Labeo.' ■= Callistratus in Dig. xlviii. 19, 28. ■■ TJlpian in Dig. xlvii. 10, 35 ; ef. Cod. ix. 44, a. IX.] MODIFIED FOEMS OF DISQUALIFICATION. 1 99 women. But the chief form in which a class of women is presented to us as of low station or origin is in connection with the marriage laws of the later Empire. Poverty was not sufficient to constitute lowliness of station for this purpose ; but a definite list of abjectae mulieres was drawn up, based partly on birth, partly on profession, with whom marriage was forbidden to senators and high officials^. One of the sanctions of this law was nullity of the marriage, and we have seen that an attempt on the part of the husband to make the children of such unions pass as legitimate was visited by infamia^. ' Cod. T. 5, 7 (Valentinian III and Mareian, a. d. 454) ' humiles vero abjectasque personas eas tantmn modo mulieres esse censemus : ancillam ancUlae filiam, libertam libertae filiam, seaenioam Tel scaenicae filiam, tabernariam Tel tabemarii Tel lenonis aut harenarii filiam, aut earn quae mercimoniis publico praefuit.' ^ See p. 151 for this infamia, and for the repeal of these marriage laws by Justinian. APPENDIX Note I, p. 136. The evidences for the rules of mourning in Republican Rome, as fixed by the college of Pontifices, are very slight. Plutarch, in his life of Numa (c. 12), sums up the Pontifical law on the subject as follows : — avTos de Koi ra nevdrj Ka6 rjXiKLas icai ;^poi'oi'S era^ev' OLov TraiSa firj TrevBeiv vforrepov TpifTOvs, fir/Si Ttpea-pirepov irkelovas ixrjvas &v i^iaafv €VLavTS)V fi^xP^ '^^^ deKa^ Kai nepairepo) prj^epiav fjKiKiav^ oKkh tov paKpO' TCLTOVy 7T£V0ovs ;^poi'oi» clvai b€Kap.7}Viaiov (e0 o(rov Koi ^(rjpevovaLV at Ta>v ano6av6vTu>v ytiyaiKejV With the exception of the last senteneCj which will demand further comment, the passage treats of the length of mourn- ing, as determined by the age of the deceased. The rules given by Plutarch refer only to children ; the parallel passage in the Fragm. Vat. (§ 321) includes parents as well, and seems to show that in no case did the period of mourning ever exceed a year in duration, and that this year was always reckoned as ten months. The passage runs :— ' Lugendi autem sunt parentes anno ', liberi majores x annorum aequo anno, quern annum decern mensuum esse Pomponius ait ; nee leve argumentum est annum x mensuum esse, cum minores liberi tot mensibus elugeantur, quot annomm decesserint usque ad trimatum ; minor trimo non lugetur, sed sublugetur; minor auniculo neque lugetur neque sublugetur.' This statement, which is probably taken from Ulpian's ' There is a lacuna after ' anno,' as though a word had dropped out. aoa APPENDIX. commentary to the Edicts is contradicted in many particulars by a passage in Paulus (i. 21, 13), found in the Codex VesontinuSj which runs as follows : 'Parentes et filii majores sex annis anno lugeri possunt: minores mense : maritus decern mensibus : et cognati proximioris gradus octo.' But the valuelessness of this passage is generally admitted. Savigny (System, ii, Beil. vii. 11) regards it as an interpola- tion: and this opinion is followed by Karlowa (Zeitschr. f. R. G. ix. p. 237). Such, then, were the rules of mourning laid down by the Pontifical college, and enforced by the censors. That these rules, which were no doubt always embodied in the edictum censorium, found their way into the praetor's Edict, seems shown by the fact that some commentator, probably Ulpian, found it worth while to mention them in that portion of his commentary which dealt with the edictum cognitorium. It is a portion of this commentary which is found in the extract from the Fragmenta Vaticana quoted above. Women, who were included in this Edict with respect to their capacity to give cognitors or procurators, are regarded as infames for the purposes of the Edict, if they did not fulfil these conditions of mourning. Such formal rules had apparently ceased to be binding upon men by the time when this commentary on the Edict was written, at least so far as the duty of mourning parents was concerned '- It is with reference to this change that we must probably explain a passage of Ulpian which speaks of fixed rules of mourning as having been abolished : Dig. iii. 2, 23 (Ulp. lihr. viii. ad Edict.) ' parentes et liberi utriusque sexus nee non et ceteri adgnati vel cognati secundum pietatis rationem, et animi sui patientiam, ^roM< quisque voluerit, lugendi sunt: qui autem eos non eluxit, non notatur infamia.' ' There was, however, some doubt on the point ; Pragm. Vat. § 320 ; '"parentem," inquit (praetor), hie omnes parentes accipe utriusque sexus, nam lugendi eos mwlieribus maris est. quamquam Papinianus libro ii. quaestionum etiam a liberis virilis sexus lugendos esse dicat ; quod nescio ubi legerit.' APPENDIX. 203 Ulpian could never have meant this to be a general rule, at a time when the violation of mourning did produce inf amia on women, as shown by the Fragm. Vat. It must, as Karlowa suggests (op. cit. p. 237) have occurred in a context referring only to men. It is quoted (out of its context) as a general principle in the Digest, because by the time of Justinian the formal rules of mourning had been wholly abolished. Can we point to a time when these rules wholly ceased to be binding? It is possible that the date is given by a passage in the Code, which runs as follows : Cod. ii. 11, 12 (15) (Grordian 239 a. d.) 'decreto amplissimi ordinis luctu feminarum deminuto tristior habitus ceteraque hoc genus insignia mulieribus remittuntur.' But this only furnishes an approximate date on the two suppositions (i) that the >S. G. referred to was one passed in Gordian^s time (about 239 a. d.), and so after the death of Ulpian, who was murdered 228 a.d., and (2) that it was not a mere temporary remission of mourning for a temporary purpose. If the S. C. was passed at a period much before the time of Gordian, as held by Savigny, then the explana- tion, given by the Scholiasts to the Basilica and by Cujacius, that it was merely a temporary remission, must be the right one. For it is certain that the rules of mourning were binding on women at the time at which the Edict was commented on by Ulpian. It is possible that this second explanation is correct : the temporary regulation becomes an absolute rule, as quoted in Justinian^s Code; and Christianity, which must have laid but little stress on the external signs of mourning, succeeded in abolishing these rules of the Pontifical law. The rescript of Gordian, as embodied by Justinian in his Code, becomes a recognition of their final abolition. There is, however, one exception to this abolition which deserves special consideration. The obligation imposed by the Pontifical law on a widow to mourn her husband during the space of ten months, before contracting a second marriage, a04 APPENDIX. is found in the Edict even in the mutilated form in which it has been preserved to us by Justinian's compilers. With reference to this obligation two questions have been raised : (i) What was the original meaning of the rule ? (a) What was the object with which the rule was maintained in the Pandects of Justinian, at a time when all the other regulations about mourning parents and children had been abolished ? The answer to the first question appears to be that the mourning for the husband had from the first a twofold significance, unlike the mourning for other relatives. It was enjoined, firstly, as an external sign of grief required by religious law; and, secondly, as a means of preventing doubt- fulness of paternity in the case of a posthumous child being bom j the ten months' luctus of the widow was, to use the expression of the later Roman law, a means of avoiding turbatio sanguinis. This, indeed, has been denied by Savigny (System ii., Beil. vii. 6), who believed that the second was at all times the only motive. The arguments which he adduces from the passages cited from jurists in the Digest must, however, at once be disallowed; for the excerpts have evidently been so made as to bring prominently before us only the motive which was the ruling one in Justinian's time, that is, the avoidance of turbatio sanguinis ^. But the evidences from earlier literature are on the whole against Savigny's view. The passages collected by Cujas (Observ. vi. 32) show the double motive of the older Pontifical regulations. This double motive appears in the notice of Ovid (Fasti, i. 33) : 'Quod satis est, utero matris dum prodeat infans Hoc anno statuit temporis esse satis. Per totidem menses a funere conjugis uxor Sustinet in vidua tristia signa domo,' and the religious objection to a second marriage within the ' Dig. iii. 2, 11, i and 2. On these passages see Karlowa's criticism (op. cit. pp. 235, 236) ; he assigns these passages to their true context in Ulpian's commentary to the Edict. APPENDIX. 205 prescribed period o£ mourning was perhaps based on many- grounds of sentiment, not the least potent of which may have been that dwelt on by Apuleius (Metamorph. viii.), fear of vengeance from the manes of the deceased husband. We do find modifications in the external signs of mourning occasionally permitted the widow, e.g. on the occasion of a betrothal ^. But Savigny's view that a new marriage might be concluded 'in a perfectly sober spirit/ and was, therefore, in itself no violation of mourning, appears contrary to Roman religious sentiment. Yet the fear of turbatio sanguinis must always have been a powerful motive from the secular point of view, and naturally survived when the purely religious objections had almost disappeared. For perhaps these never did quite disap- pear even in the Christian Empire. The Scholiast to the Basiliea at least recognises the ' reverence due to the husband ' as one of the bars to marriage (Nicaeus ad Basil. 22, tit. 2, p. 623, Fabr.), and this sentiment still survives in the language of some of the constitutions of the Christian Emperors, e. g. : Cod. V. 9, 1 (Gratian, Valentinian II, and Theodosius I, a.d. 380) 'si qua mulier nequaquam luctus religionem priori viro nuptiarum festinatione praestiterit, ex jure quidem notissimo sit infamis ' (cf. the language of the next constitution given by the same Emperors, a.d. 381). But it is equally apparent that the chief motive for the retention of this form of the infamia of the Edict by the compilers of Justinian, was the purely civil ground of the avoidance of turbatio sanguinis (Rudorff, Zeitschr. f. R. G-. iv. p. ^^). This is shown by the arrangement of the extracts which are found in the title of the Dig. (iii. 2) dealing with the infames : and although we occasionally get a reminiscence ' The betrothal of the widow herself, according to Savigny, but this is by no means the necessary meaning of the words of Festus (p. 155 Muell. minuebatur . . . luctus . . . privatis . , . quum puella desponsaretur). On these occasions the mourning was not ' shortened,' as Savigny explains, but 'lessened,' i.e. half-mourning was adopted. 2o6 APPBKDIX, of the old religious rules \ these would never have survived apart from the secular ground which dictated the prohibition of a hasty second marriage. Note II, p. 137. The interpretation of this clause, which is given in the text of the work, demands some justification, for it difBers essentially from those given by Buschke and Rudorff. The chief ground on which I venture to disagree with their explanations is that the meaning which they attach to the three words of most importance in the clause (' bonam copiam jurare •") seems to me inconsistent with the probable interpre- tation of those words in the context which, of aU others, throws most light upon their meaning. The sentence in question runs : — ' Queive in jure [bonam copiam abjuravit] (suppL Mommsen) abjuraverit, bonamve copiam juravit juraverit, quei (omitting ve) sponsoribus creditoribusve sueis renuntiavit rennntiaverit, se soldum solvere non posse, aut cum eis pactus est erit, se soldum solvere non posse.' The words, on the meaning of which the whole interpretation of this passage turns, are ' bonam copiam jurare.' Buschke {Das RecU des Nexum, pp. 138, 139) understands the second case here mentioned (i. e. the case of the man ' qui bonam copiam juravit' &c.) as a single case of fraudulent bankruptcy. It is the case of a man ' who has first declared his insolvency to his creditors, or has already obtained a remission from them ("quei sponsoribus . . . se soldum ' E.g. in the extract from Ulpian (Dig. iii. 2, ii, i) 'etsi talis sit maritus, quern more majorum lugeri non oportet, non posse eam nuptum intra legitimum tempus collocarl,' the ground of the praetor's ruling in this case heing turbatio smiguinis. Husbands, whom widows were excused from mourning, were those who had been hostes, perduellionis damnaii, suspendwsi, or those qui manus sibi intutera/nt non taedio vitae, sed maia conscienlia (l.o. § 3). APPENDIX. 307 solvere non posse '^) but who afterwards, perhaps with reference to another creditor, has sworn his solvency before the court, to gain certain privileges thereby, probably to secure freedom from personal arrest in accordance with the Edict.' Bonam copiam jurare is here taken to mean ' to swear that one is solvent.' But, even if we believe that this can be the meaning of the words, it certainly seems that this explana- tion would require ' queive bonam copiam,'' &c. ; that is, it would require a new clause extending down to the words solvere non posse, sharply severed from the preceding clause, which would refer to the ordinary bankrupt, who has simply sworn that he is insolvent (' quel . . . abjuraverit '). Rudorff (Zeitschr. f. R. G. iv. p. 51 seq.) understands the words as referring to two kinds of fraudulent bankruptcy. ' The first is maintaining solvency on oath (when it is only done to escape arrest and avoid insolvency), the second is the announcement of insolvency and arrangement (through which the creditor is cheated of a portion of his goods).' The passages of Rudorff's explanation which I have enclosed in brackets seem to me purely gratuitous additions to the words of the law. They rest on the assumption (which is a mere assiunption so far as these particular words are concerned) that the case treated of in the law must be one of fraudulent bankruptcy. The important point of this explanation is, however, that Rudorff agrees with Huschke in thinking that *■ bonam copiam jurare ' means ' to swear to solvency.'' And this is the meaning attached to the words by Forcellini (s.v. ' ejuro '' : ' jurare bonam copiam est jurejurando in judicio afiirmare, esse sibi tantam copiam rei familiaris, qua creditoribus satisfieri omnimodo possit '). But this meaning of ' bonam copiam jurare ' will not suit the most important passage in which the words occur. Varro (L. L. viii. T05) in describing the emancipation of the next, ' Liber, qui suas operas in servitutem pro pecunia quam debet dat, dum solveret, nexus vocatur, ut ab aere obaeratus. Hoc C. Poetilio 2o8 APPENDIX. Libone Visolo (Lachmann for C. popillio vocare sillo) dictatore sublatum ne fieret ; et omnes, qui honam copiam jurarunt, ne essent nexi dissoluti.' This C. Poetilius was dictator in 313 B.C., but the change referred to is no doubt that mentioned by Livy (viii. a8) in connection with the year 326 ^ : — 'Jussique consules ferre ad populum, ne quis, nisi qui noxam meruisset, donee poenam lueret, in compedibus aut in nervo teneretur : pecuniae creditae bona debitoris, non corpus obnoxium asset.' Livy makes it a universal release of nexi, Varro only of those debtors ' qui bonam copiam jurarunt.' As no nexus could possibly be solvent, or be kept in servitude after he was solvent (Varro 1. c. dum solveret), the words cannot mean ' swore to solvency.' They have been taken to mean ' who swore that they had done their best, or would do their best, to meet their debts and satisfy their creditors.' I should prefer the explanation ' who swore that they had reasonable hopes (literally " means ■") of ultimately satisfying their ereditors.' This agrees best with the words of the Lex Julia Municipalis and with a passage in one of Cicero's letters to Paetus (ad Fam. is. 16, 7) : — ' Tu autem, quod mihi bonam copiam ejures, TiiViil est ; tum enim, quum rem babebas, quaesticulis te faciebam attentiorem ; nunc, quura tam aequo animo bona perdas, non eo sis consilio, ut, quum me hospitio recipias, aestimationem te aliquam putes accipere ; etiam base levior est plaga ab amico quam a debitore.' Ejware here is equivalent to the abjwrare of the law. Paetus, who had represented his wealth as rapidly disappearing in consequence of his being obliged to accept aegtimationes, in accordance with Caesar's law, had written to Cicero to say that he was hopelessly insolvent. If we accept this meaning for the words, the clause in the Lex must refer to the debtor ' who has sworn that he has ^ The other reading, adopted by Forcellini [s.u. 'ejuTo'], 'C. Popilio rogante Sulla dictatore," though perhaps closer to the MS., is rendered impossible by the fact that no such condition as that of the nesats could have existed in the time of Sulla. APPENDIX. 209 reasonable means of meeting his engagements, and, as having such, has come to an arrangement with his creditors on the ground of incapacity to pay in full.' It would show, therefore, a case of ordinary bankruptcy, but accompanied by a compromise accepted by the creditors. If we turn now to the case of the man ' quel bonam copiam abjuravit,' it cannot mean, according to this explanation, to ' swear insolvency ' simply. It refers to a man ' who has taken an oath that he has no means of meeting his engagements.' The four divisions of the clause, in fact, balance one another in the following way: — (i) the man who has sworn that he has no means of meeting his engagements, (a) and has made a renuntiatio to this effect : (li) the man who has sworn that he has some means of meeting his engagements, [h) and has come to an arrangement with his creditors. Note III, p. 149. This Constitution, issued in the year 397 a.b. under the names of Arcadius and Honorius — for we may exempt these Emperors, one of whom was fourteen and the other thirteen years of age at this date, from any active share in its promulgation — is of some importance as a singular violation of the theory of infamia and of the theory of punishment in Roman law. We have already seen that the infamia was not hereditary (pp. 7 and 38) : and we know that the principle was upheld by the lawyers of the Empire, in the case of disqualifications consequent on criminal condemnation, or analogous circum- stances, such as criminal accusation, that these disqualifications V aio INPAMIA. could not be transmitted from father to son. The most general statement of this principle is made by Callistratus (Dig. xlviii. 19, Be poenis, %6) : — ' Crimen vel poena paterna nullam maculam filio infligere potest : namque unusquisque ex suo admisso sorti subicitur nee alieni criminis successor constituitur, idque divi fratres Hierapolitanis rescripserunt.' A similar statement, with reference to the qualifications for municipal offices, is made by Ulpian (Dig. 1. 2, Be deem, etfil. eor., a, 7): — 'Nullum patris delictum innocenti filio poenae est: ideoque nee ordine decurionum aut ceteris honoribus propter ejusmodi causam prohibetur.' More particular applications of the principle, with reference to municipal ofiices, are to be found in Dig. 1. 3, 13, 2 and 4, i, 9- The theory that civic disabilities could not be entailed on a son in consequence of the crime or punishment of his father was only a part of the more general theory that punishment itself could not be transmitted. This was a very early principle in the Roman criminal law. Dionysius tells us (viii. 80) that, on the execution of Sp. Cassius in 485 B.C., a proposal was made that his children should be put to death ; but that this proposal was indignantly rejected by the Senate. He continues : — Kai f'l (Keivov to e^os tovto 'Pa>iiaiois eiri^mpwv yiyovev, eas Tijs Koff Tjjias SLaTrjpoi/ievoy ^XiKias, d Claudia (de senatoribus), 34 note 2, 194 note 2 ; Clodia (de censoribus), 47, 55, 79 ; Cor- nelia de ambitu, 29 ; Julia et Papia Poppaea, 170, 171, 172, 175, 189 ; Julia de adulteriis, 162, 163, 167, 169 ; Julia de bonis cedendis, 137 ; Julia municipalis, 24, 26, 57, 67, 70, 72, 116, 121, 134; Julia Eepetundarum, 29, 155, 167 ; Julia de vi privata, 29, 155, 166 ; Julia de vi publica, 141, 166 ; Moenia, 65 note 4 ; Marcia (de feneratoribus), 70 ; Marcia (de censoribus), 49 note i ; Oppia, 62 ; Ovinia, 76 ; Plaetoria, 134 ; Kemmia, 122 ; Scantinia, 121 note I ; Visellia, 149. Lex naturalis, 64. Libertinae, 66 note i, 171 note i. Libertini, infamia of certain, 149, 170. Luxury, 66. Magistrates, punished by censors, 70 ; for qualifications see Infamia and Honores. Mandatum, 26 note 3, 131, 137. Marriage, 59, 66, 150, 192, 199. Mediate infamia, conditions re- quired for, 39 ; in connection with censorship, 73 ; in the Edict, 128. Missio, honesta, 95, 123 ; causaria, 96 note I, 123 ; ignominiosa, 123. Mourning, rules of, 44, 67, 125, 174. ai8 INDEX. Uunicipal offices, 30 uote 2, 112, 116, 150, 184, 187 notes 2 and 4, 194, 197. ITexus, 135. Wota, 52. Ifotare, 4 note, 116, 173. n'otatio censoria, 4 note, 15, 22, 52, 57- Ifotio, 51. Oath, of censor, 80; violation of, see Perjury. Obligatory relations productive of infamia, 26, 131. Opus censorlum, 60. Oratio of censors, 58, 59 ; of Em- peror, 20. Ordo, conception of, 10 ; for Ordines see Clarissimi, Squites, Judicea, Iiecti6 senatus, Ferfectissimi. Paotio, as equivalent to condemna- tion, 25 note I, 130. Patria potestas, misuse of, 64, 190. Patron ; see Client. Perfectissimi, loi, 150. Perfidia, 132 ; see Pides. Perjury, 53, 57, 72. Plebiscitum ; see Iiex. Pontifical law, 66; see Mourning. Possessio (proscriptio) bonorum, 27, 136. Postulatio, 114; rules of, 117; see Edict. Praefectus praetorio, 147 ; urbi, 87 ; vigilum, loi ; praefecti mvdieri- bus, 63. Praevaricatio, 20, 72, 85, 128, 163. Probrum, 4 note, 18, 60. Programma criminale, 148. Prosecute, right to ; see Accuse. Pro socio (actio), 26 note 3, 131. Prostitutes, 166, 172, 190 note i. Punishments, regulation of, 162, 174, 198; infamia averted by increase of, 183 ; substitution for infamia, 198. Querela inofficiosi testamenti, 165, 174, 19I; 198- Eecitatio of list of Senate, 80 ; of list of Equites, 94. Becoguitio equitum, 69, 93. Kegimen moruju, 41, 45. Bepetundae, 167; see Xiex Acilia and Julia. Bequirendus adnotatus, 148. Bescripts, misinterpretation of, a ground of infamia, 151. Bestitutio in integrum, 179. Savigny's theory of infamia, 21, 57. Senate, as a Court of Justice, 84 ; see Lectio senatus. Senatus consultum, to lex Julia de vi priv., 29 ; to lex Julia et Pap. Popp., 172; about Tutela, 139; Turpillianum, 85, 129. Sepulchri violati (actio), 141. Slave, protection of, 63. Soldiers, infamia of, 70 note i, 71, 73 note 2, 100 note 4, 123 ; see Army and Missio. Sparta compared with Eome, 63. Sponsalia ; see Betrothal. Status, compared with Existimatio, 5-38. Stellionatus, 143. Sublectio, 76 note i, 79. Subscriptio censoria, 52, 80. Suffragium, loss of, 34, 109; misuse of, punished by censor, 71, 108. Suicide, 73. Sumptuary laws, 62. Suspeoti crimen, 138. Tergiversatio, 129 note i. Trade and professions as grounds of disqualification, 12, 34 note 2, 121, 125 note I, 194. INDKX. 219 Transactio, i8a, 185. Trausvectio equitum, 98. Treason, 149. Tribe, removal from, 34, 106, 109 ; limited by statute-law, no. Tribuni aerarii, 91 note. Turbatio sanguinis, 126. Turpitudo and turpes, 162, 165, 187 ; in turpitudine notabiles, 117, 121, 163, 179. Tutela, 26 note 3, 67, 131, 133, 138, 139, 190. Twelve Tables, sumptuary regula- tions of, 62 note ; protect clients, 64 ; sanction divorce, 65 ; prohibit usury, 70 ; render individuals in- testabiles, 168. Usury, 70, 133 note 3, 140. Venditio bonorum, 137. Verbal compacts, violation of, 147 ; see Fides. Veto of tribune not valid against censors, 47 ; mutual of censors, 49. Vi bonorum raptorum (actio), 26 note 2, 130. Vioaria praefectura, 102. Vilitas and viles, 165, 193. Witnesses, incapacity to be, 165, 174, 198. Women, as subject to infamia, 171 ; see Abjectae and Famosae. THE END. €fatenbon (pve^e, O;efotb^ I. LITERATURE AND PHILOLOGY. SECTION I. DICTIONARIES, GRAMMARS, &c. ANGLO-SAXON". An Anglo-Saxon Dictionary, based on the MS. Collections of the late Joseph Boswokth, D.D., Professor of Anglo- Saxon, Oxford. Edited and enlarged by Prof. T. N. Toilek, M.A. Parts I-III. A— SAE. 4to, 15s. eaoh. Part IV. Sect. I. SAH- SWlBKIAN. 8s. 6d. ARABIC. A Practical Arabic Grammar. Compiled by A. O. Geebn, Brigade Major, Royal Engineers. Parti. Third Edition. Enlarged. Crown 8vo, 7*. 6d. Part II. Third Edition. Enlarged and Remsed. los. 6d. BENGALI. Grammar of the Bengali Language ; Literary and Colloquial. By John Beames. Crown 8vo, clotli, d. Julius Caesar, is. ' Henry the Fifth. 28. Eichard the Third. 2s.6d. Twelfth Night, is. 6i. King Lear. is. 6rf. King John. is. (ti. Henry the Eighth. 2S. Shakespeare as a Dramatic Artist; a popular Illustration of the Principles of Scientific Criticism. By K. G. MonLlON, M.A. Third Edition, JEnlarged. Crown 8vo, Js. 6d. Bacon. I. Advancement of Learning. Edited by W. Aldis Wbight, D.C.L. Third Edition. Extra fcap. 8to, 4*. 6d. II. The Essays. Edited, with Introduction and Illustrative Notes, by S. H. Reynolds, M.A. 8vo, half-bound, 12*. 6d. MILTON. I. Areopagitica. With Introduction and Notes. By John W. Hales, M.A. Third Edition. Extra fcap. 8vo, 3s. II. Poems. Edited by R. C. Beottne, M.A. In two Volumes. New Edition, Bevised. Extra fcap. 8vo, 6*. 6d. Sold separately. Vol. I, 4s. ; Vol. II, 3s. In paper covers .• Lycidas, 3d. L' Allegro, $d. Comus, 6d. Edited with Notes, by O. Elton, B.A. Lycidas, 6d. L' Allegro, ^d. II Penseroso, 4^. Comus, l«. III. Paradise Lost. Book I. Edited by H. C. Beeching, M.A. Extra fcap. 8vo, stiff covers, is. 6d. ; in Parchment, 3s. 6d. IV. Paradise Lost. Book II. Edited by E. K. Chambeks, B.A. Extra fcap. 8to, i*. 6d. Books I and II combined, 2s. 6d. V. Samson Agonistes. Edited, with Introduction and Notes, by J. Chueton Collins, M.A. Extra fcap. 8vo, stiff covers, is. Milton's Prosody. By Robert Bkddges. Small 4to, 8s. 6d. net. Oxford : Clarendon Press. A Series of English Classics. 1 1 Bunyan. I. The Pilgrim's Progress, Grace Abounding, Eelation of the Imprisonment of Mr. John Buktait. Edited, with Bio- graphical Introduction and Notes, by E. Venables, M.A. Extra fcap. 8vo, cloth, 3s. dd. ; in Parchment, 4*. 6d. II. The Holy War, and The Heavenly Footman. Edited by Mabbl Peacock. Extra fcap. 8vo, 3s. 6d. Fuller. Wise Words and Quaint Counsels of Thomas Puller. Selected by Adgostus Jessopp, D.D. Crown 8vo, 6*. Clarendon. I. History of the Eebellion. Book VI. Edited by T. Aenold, M.A. Extra fcap. 8vo, 4s. 6d. II. Characters and Episodes of the Great Eebellion. Selections from Clarendon. Edited by G. Botle, M.A., Dean of Salisbury. Crown 8vo, gilt top, 'js. 6d, [See also p. 55.] Dryden. Select Poems. (Stanzas on the Death of Oliver Cromwell ; Astraea Eedux ; Annus Mirabilis ; Absalom and Achitophel ; Keligio Laici ; The Hind and the Panther.) Edited by W. D. Cheistie, M.A; Fifth Hdition. Eevised by C. H. Fieth, M.A. Extra fcap. 8vo, 3*. 6d. An Essay of Dramatic Poesy. Edited, with Notes, by Thomas Abuold, M.A. Extra fcap. Svo, 3s. 6d. Locke. Conduct of the Understanding. Edited, with Intro- duction, Notes, &o., by T. Fowlee, D.D. Third Edition. Extra fcap. Svo, 2s. 6d. Addison. Selections from Papers in the Spectator. With Notes. By T. Aenold, M.A. Extra fcap. 8vo, 4s. 6d. ; in Parchment, 6«. Steele. Selections from the Tatler, Spectator, and Guardian. Edited by Austin Dobson. Extra fcap. 8to, 6«. ; in Parchment-, 'js. td. Swift. Selections from his Works. Edited, with Life, In- troductions, and Notes, by Henry Ceaik. Two Vols. Crown 8vo, cloth extra, 15*. jElaoh volume may ie had separately, price ys. dd. Pope. Select Works. With Introduction and Notes. By Maek Pattison, B.D. I. Essay on Man. Sixth Edition. Extra fcap. Svo, is. 6d. II. Satires and Epistles. Fourth Edition. Extra fcap. Svo, 2S. Parnell. The Hermit. Paper coyers, id. Thomson. The Seasons, and The Castle of Indolence. Edited by J. LOGIE KoBEBTSON, M.A. Extra fcap. Svo, 4s. 6d. The Castle of Indolence. By the same Editor. Extra fcap, Svo, IS. 6d. London : Hehkt Fbowde, Amen Corner, E.G. 12 /. Literature and Philology. Gray. Selected Poems. Edited by Edmund Gossb, M.A. Sxtra fcap. Svo. In FarcHmezit, 38. The game, together with Supplementary Notes for Schools, by Foster Watson, M.A. Stiff covers, is. dA. Elegy, and Ode on Eton College. Paper covers, zd. Chesterfield. Lord Chesterfield's Worlflly Wisdom. Selec- tions &om his Letters and Characters. Edited by Gr. Bibkeeck Hill, D.C.L. Crown Svo, 6s. Groldsmith. I. Selected Poems. Edited with Introduction and Notes, by AnsTiK DoBSON. Extra foap. Svo, 3s. dA. ; in Parchment, 4«. dd. II. The Traveller. Edited by G. Birkbeok Hill, D.C.L. Stiff covers, i*. III. The Deserted Village. Paper covers, zd. JOHNSON. I. Easselas. Edited, with Introduction and Notes, by Gr. Bikkbbok; Hill, D.C.L. Extra fcap. Svo, bevelled boards, 3*. 6d. ; in Parchment, 4*. dd, II. Rasseias; Lives of Dryden and Pope. Edited by Alfeed MiLNBS, M.A. (London). Extra fcap. Svo, 4*. dd. ; or Lives of Dbtden and Pope only, stiff covers, 2s. dd. III. Life of Milton. Edited by C. H. Fieth, M.A. Extra fcap. Svo, cloth, 2*. dd. ; stiff covers, is. dd. IV. Wit and Wisdom of Samuel Johnson. Edited by Gr. BiEKBECK HiLL, D.C.L. Crown Svo, ys. dd. v. Vanity of Human Wishes. With Notes, by E. J. . Patne, M.A. Paper covers, ifi. VI. Letters of Samuel Johnson, LL.D. Collected and Edited by Gr. Bibkbiok HttL, D.C.L. 3 vols. Medium Svo, half- roan, 288. BOSWELL. Boswell's Life of Johnson. With the Journal of a Tour to the Hebrides. Edited by G. Birkbeok Hill, D.C.L., Pembroke College. 6 vols. Medium Svo, half-bound, 3L 3». Cowper. Edited, with Life, Introductions, and Notes, by H. T. GRirriTH, B.A. I. The Didactic Poems of 1783, with Selections from the Minor Pieces, A.D. 1 779-1 7S3. Extra fcap. Svo, 3s. II. The Task, with Tirocinium, and Selections from the Minor Poems, A.D. 1 7S4-1 799. Second Edition. Extra fcap. Svo, 3*. Oxford: Clarendon JPiasg, A Series of English Classics. 13 Burke. Select Works. Edited, with Introduction and Notes, by E. J. Payne, M.A. I. Thoughts on the Present Discontents; the two Speeches on America. Second Edition. Extra fcap. 8to, 4*. 6d. II. Reflections on the French Revolution. Second Edition. Extra fcap. 8vo, 5*. III. Four Letters on the Proposals for Peace with the Kegioide Directory of France. Second Edition. Extra fcap. 8vo, 6». Burns. Selected Poems. Edited, with Introduction, Notes, and a Glossary, by J. LOGIE Eobertson, M.A. Crown 8to, 6s. Keats. Hyperion, Book I. With Notes by W. T. Arnold, B.A. Paper covers, ^d. Byron. Childe Harold. With Introduction and Notes, by H. F. TozEE, M.A. Second Edition. Extra fcap. 8vo, 3«. 6d. ; in Parch- ment, 5«. Scott. Lady of the Lake. Edited, with Preface and Notes, by W. MiNTO, M.A. Extra fcap. 8vo, 3*. 6d. Lay of the Last Minstrel. By the same Editor. With Map. Second Edition. Extra fcap. 8vo, 2«. ; in parchment, 3s. 6d. Lay of the Last Minstrel. Introduction and Canto I, with Preface and Notes, by the same Editor. 6d. Lord of the Isles. Edited, with Introduction and Notes, by Thomas Bayne. Extra fcap. 8vo, 3s. 6d. Marmion. Edited, with Introduction and Notes, by T. Bayne. Extra fcap. 8vo, 3s. 6d. Shelley. Adonais. Edited, with Introduction and Notes, by W. M. EossETTl. Crown 8vo, 5«. Campbell. Gertrude of Wyoming. Edited, with Introduction and Notes, by H. Macaulay FitzGibbon, M.A. Second Edition. Extra fcap. 8vo, I*. Wordswortli. The White Doe of Rylstone, &c. Edited by William Knight, LL.D. Extra fcap. 8vo, 2s. 6d. Shairp. Aspects of Poetry; being Lectures delivered at Oxford, by J. C. Shaikp, LL.D. Crown 8vo, los. 6d. Palgrave. The Treasury of Sacred Song. With Notes Explanatory and Biographical. By F. T. Palgravb, M.A. Thirteenth Thousand. Extra fcap. 8vo, 4s. 6d. London : Hehrt Frowde, Amen Comer, E.G. 14 /. Literature and Philology. SECTION IIL EUROPEAN LANGUAGES, MEDIAEVAL AND MODERN. (1) FRENCH AND ITALIAN. Brachet's Etymological Dictionary of the French Language. Translated by G. W. Kitchin, D.D. Third Edition. Crown 8vo, 7s. 6d. Historical Grammar of the French Language. Trans- lated by G. W. KiTCHiN, D.D. Seventh Edition. Extra feap. 8vo, 3*. 6d. Saintsbury. Primer of French Literature. By Geoege Sainisbubt, M.A. Third Edition, Revised. Extra fcap. 8to, 2s. — Short History of French Literature. Fourth Edition. Crown 8vo, log. 6d. — Specimens of French Literature, from Villon to Hugo. Second Edition. Crown 8vo, 9*. Song of Dermot and the Earl. An Old French Poem. Edited, with Translation, Notes, &c., by G. H. Obpek. Extra fcap. 8vo, 8«. 6d. Toynbee. Specimens of Old French (ix-xv centuries). With Introduction, Notes, and Glossary. By Paget Toynbee, M.A. Crown 8to, i6». Beaam.archais' Le Barbier de Seville. Edited, with Intro- duction and Notes, by Austin Dobson. Extra fcap. 8vo, 2S. 6d. Comeille's Horace. Edited, with Introduction and Notes, by Geobge Saintsbdby, M.A. Extra fcap. 8vo, 2S. 6d. Molifere's Les Precieuses Ridicules. Edited, with Introduction and Notes, by Andeew Lang, M.A. Second Edition. Extra fcap. 8vo, IS. 6d. Musset's On ne badine pas avec 1' Amour, andFantasio. Edited, with Prolegomena, Notes, &c., by W. H. Pollock. Extra fcap. 8vo, 2S. Oxford : Clarendon Press, French and Italian. 15 Racine's Esther. Edited, with Introduction and Notes, by George Saintsbuet, M.A. Extra fcap. 8vo, 2». Voltaire's Merope. Edited, with Introduction and Notes, by G-EORGE Sainisburt, M.A. Extra foap. 8vo, as. *#♦ The above six Flays may he had in ornamental case, and bound in Imitation Parchment, price 12s. 6d. Moli&re. Le Misanthrope. Edited by H. W. G. Maekheim, M.A. Extra fcap. 8vo, 3s. 6a!. MASSON'S FRENCH CLASSICS. 'Edited ly Oustave Masson, B.A. Corneille's Cinna. With Notes, Glossary, &c. Extra fcap. 8vo, 2«. ; stiff covers, i«. 6d. Louis XIV and his Contemporaries ; as described in Extracts from the best Memoirs of the Seventeenth Century. With English Notes, Genealogical Tables, &c. Extra fcap. 8vo, 7.S. 6d. Maistre, Xavier de, &c. Voyage autour de ma Chambre, by Xaviek de Maistre ; Ourika, by Madame de Ddras ; Le Vieux TaUleur, by MM. Brckmann-Chatrian ; La Veill(?e de Vinoennes, by Alfred de Vignt; Les Jumeaux de rH6tel Corneille, by Edmobd About ; M^saventures d'un i)colier, by Eodolphb TOpffbr. Third JEdition, Mevised. Extra fcap. 8vo, 2s. 6d. Voyage autour de ma Chambre. Limp, is. 6d. Molidre's Les Fourberies de Scapin, and Racine's Athalie. With Voltaire's Life of Molifere. Extra fcap. 8vo, 2s. 6d. Les Fourberies de Scapin. With Voltaire's Life of Molifere. Extra fcap. 8vo, stiff covers, is. 6d. Les Femmes Savantes. With Notes, Glossary, &c. Extra fcap. 8vo, cloth, 2S. ; stiff covers, is. 6d. Racine's Androraaque, and Corneille's Le Menteur. With Louis Bacine's Life of his Father. Extra fcap. 8vo, 2s. 6d. Regnard's Le Joueur, and Bmeys and Palaprat's Le Gron- deur. Extra fcap. 8vo, 2S. 6d. Sevign6, Madame de, and her chief Contemporaries. Selections from their Correspondence. Extra fcap. 8vo, 3s. London : Hekey Feowdb, Ameu Comer, E.G. 1 6 /. Literature and Philology. Blouet. L'Eloquenee de la Chaire et de la Tribune Prangaises. Edited by Paul Blobbt, B. A. Vol. I.Sacred Oratory. Iktrafcap. 8to, it. 6d. Gautier, Theophile. Scenes of Travel. Selected and Edited by Gbokge Saintsbuet, M.A. Second Edition. Extra foap. 8vo, 2*. Perranlt's Popular Tales, Edited from the Original Editions, with Introduction, &c., by A. Lang, M.A. Extra fcap. 8to, 5«. 6d. Quinet's Lettres a sa Mere. Selected and Edited by Geoege Saintsbdet, M.A, Extra fcap. 8to, 2*. Sainte-Beuve. Selections from the Causeries du Lundi. Edited by Geoege Saintsbuet, M.A. Extra fcap. 8vo, 2«. A Primer of Italian Literature. B7 E. J. Snell, M.A. Extra fcap. 8vo, 3s. 6d. *?, Dante. Selections from the Inferno. With Introduction and Notes. By H. B. Cotterill, B.A. Extra fcap. 8vo, 4*. 6(i. Tasso. La Gerusalemme Liberata. Cantos i, ii. With In- troduction and Notes. By the same Editor. Extra fcap. 8vo, 28. 6d. (2) GERMAN AND GOTHIC. Max Miiller. The German Classics, from the Fourth to the Nineteenth Century. With Biographical Notices, Translations into Modern German, and Notes. By F. Max MiJLLBB, M.A. A New Edition, Revised, Enlarged, and Adapted to Wilhblm Schebeb's ' History of German Literature,' by E. Liohtenstedt. 2 vols. Crown 8vo, 2I«. Scherer. A History of German Literature by Wilhelm SoHEBEB. Translated from the Third German Edition by Mrs. F. C. CoNTBEABE. Edited by F. Max MtiLLER. 2 vols. 8vo, 21s. Or, separately, los. 6d. each volume. A History of German Literature, from the Accession of Frederick the Great to the Death of Goethe. By the same. Crown 8vo, 5s. Skeat. The Gospel of St. Mark in Gothic. By W. W. Skeat, Litt.D. Extra fcap. 8vo, cloth, 4s. Wright. An Old High German Primer. With Grammar, Notes, and Glossary. By Joseph Weight, Ph.D. Extra fcap. 8vo, 3*. 6d. A Middle High German Primer. With Grammar,' Notes, and Glossary. By the same Author. Extra fcap. 8vo, 38. 6d. A Primer of the Gothic Language. With Grammar, Notes, and Glossary. . By the same Author. Extra fcap. 8vo, 4*. 6d. Oxford ; Clarendon Press. German and Gothic. 17 LANGS' S GERMAN COURSE. By HERMANN LAN&E, Lecturer on French and German at the Manchester Technical School, and Lecturer on German at the Manchester Athenaeum. I. Germans at Home ; a Practical Introduction to German Conversation, with an Appendix containing the Essentiala of German Grammar. Third Edition. 8vo, 2». 6d. II. German Manual; a German Grammar, Reading Book, and a Handbook of German Conversation. Second Edition. 8vo, 7«. 6d. III. Grammar of the German Language. 8vo, 35. 6d. TV. German Composition ; A Theoretical and Practical Guide to the Art of Translating English Prose into German. Third Edition. 8vo, 4«. 6d. *^* A Key to the above, price 5s. net. German Spelling; A Synopsis of the Changes which it has undergone through the Government Begulations of 1880. 6d. BUCEHEIM'S GERMAN CLASSICS. Edited, with Siographical, Historical, and Critical Introductions, Arguments (to the Dramas), and Complete Commentaries, iy C. A. Buchheim, Phil. Doc, Professor in King's College, London. Becker (the Historian). JPriedrich der Grosse. Edited, with Notes, an Historical Introduction, and a Map. Second Edition, is. 6d. Goethe : (a) Egmont. A Tragedy. Fourth Edition. 3s. (6) Iphigenie auf Tauris. A Drama. Third Edition. 3*. Heine : > (a) Prosa : being Selections from his Prose Writings. Second Edition. 4s. 6d. (6) Harzreise. Second Edition, zs. 6d. Lessing : (a) Nathan der Weise. A Dramatic Poem. Second Edition. 4s. dd. (6) Minna von Barnhelm. A Comedy. Fifth Edition. 3s. 6d. Schiller : (a) Wilhelm TeU. A Drama. Large Edition. With Map. Seventh Edition. $s. 6d. (5) Wilhelm TeU. School Edition. With Map. Fourth Edition. 28. (c) Historische Skizzen. With Map. Fifth Edition. 2s. 6d. (d) Jungfrau von Orleans. 4s. 6d. (e) Maria Stuart. [^Immediately/. ^ London : Heset Fkowde, Amen Comer, E.G. C i8 /. Literature and Philology. Modern German Reader. A Graduated Collection of Ex- tracts from Modern German Authors : — ^ Part I. Prose Extracts. With English Notes, a _ Grammatical Ap))en(lix, and a complete Vocabulary. Seventh Edition. 2s. 6d. Part II. Extracts in Prose and Poetry. With English Notes and an Index. Second Edition. 23. 6d. German Poetry for Beginners. Edited with English Notes and a complete Vocabulary, by Emma S. Bdohheim. Extra fcap. 8vo, 2s. Elementary German Prose Composition. With Notes, Vocabulary, &c. By the same Editor. Cloth, 2s, ; stiflF covers, is. 6(7. Chamisso. Peter Schlemihl's Wundersame Geschichte. Edited with Notes and a complete Vocabulary, by Emma S. Buchhbim. Fourth Thousand: Extra fcap. 8vo, 2«. Lessing. The Laokoon ; with English Notes by A. Hamann, Phil. Doc, M.A. Revised, with an Introduction, by L. E. Upcott, M.A. Extra fcap. 8vo, 4*. 6d. Niebuhr : Griechisehe Heroen-Geschiehten (Tales of Greek Heroes). With English Notes and Vocabulary, by Emma S. Buchheim. Second BeYised Edition. Extra fcap. 8vo, cloth, 2*.; stiflF covers, is. 6d. Edition A. Text in German Type. Edition B. Text in Roman Type. Riehl's Seines Vaters Sohn atid Gespensterkampf. Edited with Notes by H. T. Geeeans. Extra fcap. 8vo, 2S. Schiller's Wilhelm Tell. Translated into English Verse by E. Massie, M.A. Extra fcap. 8vo, 5s. (3) SCATiTDINAVIAN. Cleasby and Vigfiisson. An Icelandic-English Dictionary, based on the MS. collections of the late Eichaed Clbasbt. Enlarged and completed by G. Vigfusson, M.A. With an Introduction, and Life of Richard Cleasby, by G. Webbe Dasbnt, D.C.L. 4to, 3*. 'js. Sargent. Grammar of the Dano-Norwegian Language. By J. Y. Saroent, M.A. Crown 8vo, Js. 6d. Sweet. Icelandic Primer, with Grammar, Notes, and Glossary. By Henrt Sweet, M.A. Extra fcap. 8vo, 3*. 6d. Vigfiisson. Sturlunga Saga, including the Islendinga Saga of Lawman STtJKLA^THOEDsaoN and other works. Edited by Gubbeand ViGEUssoN, M.A. In 2 vols. 8vo, 2I. 2s. Vigfiisson and Powell. Icelandic Prose Reader, with Notes, Grammar, and Glossary. By G. Vigeusson, M.A., and E. Yoek Powell, M.A. Extra fcap. 8vo, los. 6d. ' Corpvs Poetievm Boreale. The Poetiy of the Old Northern Tongue, from the Earliest Times to the Thirteenth Century. Edited, classified, and translated, with Introduction, Excursus, and Notes, by GnBBKAND Vigfusson, M.A., and F. Yoek Powell, M.A. 2 vols. 8vo, 2/. 2S. Oxford : Clarendon Press, Latin', Standard Works. 19 SECTION IV. CLASSICAL LANGUAGES. (1) LATIN. STANDARD WORKS AND EDITIONS. King and Cookson. The Principles of Sound and Inflexion, as illustrated in the Greek and Latin Languages. By J. E. King, M.A., and Christophek Cookson, M.A. 8vo, i8s. Lewis and Short. A Latin Dictionary, founded on Andrews' edition of Freund's Latin Dictionary, revised, enlarged, and in great part rewritten by Chablton T. Lewis, Ph.D., and Chakles Shobt, LL.D. 4to, il. 5«. Merry. Selected Fragments of Eoman Poetry. Edited with Introduction and Notes by W. W. Meret, D.D. Crown 8vo, Ss. M. Ifettleship. Contributions to Latin Lexicography. By Henry Nettleship, M.A. Bvo, 21s. Lectures and Essays on Subjects connected with Latin Scholarship and Literature. Crown 8vo, 7*. 6d. The Roman Satura. 8to, sewed, i«. Ancient Lives of Vergil. Svo, sewed, 2*. Papillon. Manual of Comparative Philology. By T. L. Papillon, M.A. Third Edition. Crown Svo, 6s. Pinder. Selections from the less known Latin Poets. By North Pinder, M.A. Svo, 15*. Rushforth. Latin Historical Inscriptions, illustrating the History of the Early Empire. By G. M«N. Edsheorth, M.A. Svo, I OS. net. Sellar. Roman Poets of the Republic. By W. Y. Sellae, M.A. Third Edition. Crown Svo, 10s. Roman Poets of the Augustan Age, Viegil. Second Edition. Crown Svo, 9s. Horace and the Elegiac Poets. With a Memoir of the Author by Andrew Lang, M.A., and a Portrait. Svo, cloth, 14*. Wordsworth. Fragments and Specimens of Early Latin, With Introductions and Notes. By J. Wordsworth, D.D. Svo, iSs. London : Hehby Feowdk, Amen Comer, E.C, C 2 20 /. Literature and Philology. Avianus. The Fables. Edited, with Prolegomena, Critical Apparatus, Commentary, &c., by B. Ellis, M.A., LL.D. 8vo, 8». fid. Catulli Veronensis Liber. Iterum recognovit, apparatum criticumprolegomenaappeudicesaddidit, Robinson Ellis, A.M. 8vo, i6*. Catullus, a Commentary on. By Robinson Ellis, M.A. Second Edition. 8to, iSs. Cicero. De Oratore Libri Tres. With Introduction and Notes. By A. S. WiLKiNS, Litt.D. 8vo, i8s. Also eeparatelff : — Book I, Second Edition. 7«. 6d. Book II, Second Edition. 5». Book III, 68. Philippic Orations. With Notes. By J. R. King, M.A. Second Edition. 8vo, los. 6d. Select Letters. With English Introductions, Notes, and Appendices. By Albert Watson, M.A. Fourth Edition. 8vo, iSe. Horace. With a Commentary. Vol. I. The Odes, Carmen Seculare, and Epodes. By E. C. Wiokham, M. A. Second Edition. 8vo,i2s. Vol. II. The Satires, Epistles, and De Arte Poetica. By the same Editor. Svo, 12s. Livy, Book I. With Introduction, Historical Examination, and Notes. By J. R. Seelkt, M.A. Third Edition. Svo, 6s. Manilius. Noetes Manilianae ; sive Dissertationes in Astro- nomioa Mauilii. Accedvnt ConieotYxae in Germanici Aratea. Soripsit R. Ellis. Crown 8vo, 6s. Ovid. P. Ovidii Nasonis Ibis. Ex Novis Codicibus edidit, Scholia Vetera Commentarium cum Prolegomenis Appendice Indice addidit, R. Ellis, A.M. 8vo, io«. 6d. P. Ovidi Nasonis Ti-istium Libri V. Recensuit S. G. Owen, A.M. 8vo, 16a. PersiuB. The Satires. With a Translation and Commen- tary. By John Conington, M.A. Edited by Hbnby Nettlbship, M.A. Third Edition. 8vo, 8*. 6d. Plautus. Rudens. Edited, with Critical and Ex.planatory Notes, by E. A. Sonnensohein, M.A. Svo, Ss. 6d. Bentley's Plautine Emendations. From his copy of Gronovius. By E. A. Sonnensohein, M.A. (Aneodota Oxon.) 2s. 6d. Quintillan. Institutionis Oratoriae Liber X. Edited by W. Peterson, M.A. Svo, 1 2s. 6d. Scriptores Latini rei Metricae. Ed.T.GAisFoiiD,S.T.P. 8vo, 5s. Oxford : Olarendou Press. Latin: Educational Works. 21 Tacitus. The Annals. Books I-VI. Edited, with Intro- duction and Notes, by H. Fubnbaux, M.A. 8vo, i8». Books XI-XVI. By the same Editor. 8vo, 20«. Dialogus De Oratoribus. A Revised Text, with Intro- ductory Essays and Critical and Explanatory Notes, By W. Peterson, M.A., LL.D. 8vo, los. 6(J. LATIN EDUCATIONAL WORKS. Grammars, Exercise Books, &c. ALLEH. Rudimenta Latina. Comprising Accidence, and Exercises of a very Elementary Character, for the use of Beginners. By John Babeow Allen, M.A. Extra fcap. Svo, 28. An Elementary Latin Grammar. By the same Author. Ninety-Seventh Thousand. Extra fcap. Sto, is. 6d. A First Latin Exercise Book. By the same Author. Seventh Hdition. Extra fcap. Svo, 2S. 6d. A Second Latin Exercise Book. By the same Author. Second Edition. Extra fcap. Svo, 3«. 6d. %* A Key to First and Second Latin Exercise Books, in one volume, price 5s. net. Supplied to Teachers only, on application to the Secretary, Clarendon Press. An Introduction to Latin Syntax. By W. S. Gibson, M.A. Extra fcap. Svo, 2«. First Latin Reader. By T. J. Nunns, M.A, Third Edition. Extra fcap. Svo, 2S. A Latin Prose Primer, By J. Y. Sakgent, M.A, Extra fcap. Svo, 28. 6d. Passages for Translation into Latin. Selected by J. Y. Sakgent, M.A. Seventh Edition. Extra fcap. Svo, 2s. 6d. \* A Key to the above, price 5*. net. Supplied to Teachers only, on application to the Secretary, Clarendon Press. Latin Prose Composition. By G. G. Ramsay, M.A., LL.D. Third Edition. Extra fcap. Svo. Vol. I. Syntax, Exercises with Notes, Sfc. 4s. 6d. Vol. II. Passages of Graduated Difficulty for Translation info Latin, together with an Introduction on Continuous Prose. 48. 6d. %* A Key to Vol. I of the above, price 58. net. Supplied to Teachers only, on application to the Secretary, Clarendon Press. London: Hehbt Fbowde, Amen Comer, E.C. 22 /. Literature and Philology, Hints and Helps for Latin Elegiacs. By H. Lee-Waenee, M.A. Extra foap. 8vo, 3s. 6d. *^* A Key to the above, price 4s. 6A. net. Supplied to Teachers only, on application to the Secretary, Clarendon Press. Reddenda Minora ; or, Easy Passages, Latin and Greek, for Unseen Translation. For the nse of Lower Forms. Composed and selected by C. S. Jekbam, M.A. Third Edition. Extra fcap. 8vo, i«. 6d. Anglice Reddenda ; or. Extracts, Latin and Greek, for Unseen Translation. By C. S. Jbebam, M.A. Faarth Edition. Extra fcap. 8vo, 2s. 6d. Second Series. By the same Editor, 3*, Models and Exercises in Unseen Translation. ByH.F. Fox, M.A., andT. M.Beomlet, M.A. Sevised Edition. Extrafcap.Svo, 5«.6d. *j* A Key to Passages quoted in the above, price 6d. Supplied to Teachers only, on application to the Secretary, Clarendon Press. An Elementary Latin Dictionary. By Chaelton T. Lewis, Ph.D. Square 8vo, 78. 6d. A School Latin Dictionary. By Chaelton T. Lewis, Ph.D. Small 4to, i8j. An Introduction to the Comparative Grammar of Greek and Latin. By J. E. King, M.A., and C. CooKSON, M.A. Extra fcap. 8vo, 5s. 6d, Latin Classics fob Schools. Caesar. The Commentaries (for Schools). With Notes and Maps. By Charles E. Moberlt, M.A. The Gallic War. Second Edition. Extra fcap. 8vo. Books I and II, 2s. ; III-V, 2s. 6d.; VI-VIII, 3s. 6d. Books I-III, stiff cover, 2S.. The Civil War. Extra fcap. 8vo, 3s. 6d. Catulli Veronensis Carmina Selecta, secundum recognitionem EoBlNSOif Ellis, A.M. Extra fcap. 8to, 3s. 6d. CICERO. Selection of Interesting and Descriptive Passages. With Notes. By Henet Walfobd, M.A. In three Parts. Third Edition. Extra fcap. Sto, 4s. 6d. Each Part separately, limp, i^. 6d. Part I. Anecdotes from Grecian and Roman History. Part II. Omens and Dreams : Beauties of Nature. Part III. Rome's Rule of her Provinces. Oxford: Clarendon Press. Latin: Educational Works. 23 Cicero. De Amicitia. With Introduction and Notes. By St. Geohge Stock, M.A. Extra fcap. 8vo, 3s. De Seneetute. Edited, with Introduction and Notes, by L. HnxLET, M.A. Extra feap. 8vo, is. — pro Cluentio. "With Introduction and Notes. By W. Eamsat, M.A. Edited by G. G. Eamsay, M.A. Second Hdiiion- Extra foap. 8to, 3s. 6d. — pro Marcello, pro Ligario, pro Kege Deiotaro. With Introduction and Notes. By W. Y. Pausset, M. A. Extrafoap. Svo, 2s.6rf. — pro Milone. With Notes, &c. By A. B. Poynton, M.A. Extra foap. Svo, 2s. 6d. — pro Roseio. With Notes. By St. Geoege Stock, M.A. Extra fcap. Svo, 3s. 6d. — Select Orations (for Schools). In Verrem Actio Prima. De Imperio Gn. Pompeii. Pro Archia. Philippioa IX. With Introduc- tion and Notes by J. R. King, M.A. Second Edition. Extra fcap. Svo, 2s. 6d. — In Q. Caecilium Divinatio, and In C. Verrem Actio Prima. With Introduction and Notes, by J. B. King, M.A. Extra fcap. Svo, limp, is. 6d. — Speeches against Catilina. With Introduction and Notes, by E. A. Upcott, M.A. Second Edition. Extra fcap. Svo, 2s. 6d. — Selected Letters (for Schools). With Notes. By the late C. E. Peichakd, M.A., and E. E. Beknabd, M.A. Second Edition. Extra fcap. Svo, 3s. Select Letters. Text. By Albert Watson, M.A, Second Edition. Extra fcap. Svo, 4s. Cornelius Nepos. With Notes. By Oscau Bkowning, M.A. Third Edition. Eevised by "W. E. Inge, M.A. Extra foap. Svo, 3s. Horace. With a Commentary. (In a size suitable for the use of Schools.) Vol. I. The Odes, Carmen Seculare, and Epodes. By E. C. WlCKHAM, M.A. Second Edition. Extra fcap. Svo, 6s. Odes, Book I. By the same Editor. Extra fcap. Svo, as. Selected Odes. With Notes for the use of a Fifth Eorm. By E. C. Wickham, M.A. Extra fcap. Svo, as. London: Hesbt Fbowde, Amen Comer, E.G. 24 /. Literature and Philology. Juvenal. Thirteen Satires. Edited, with Introduction and Notes, by C. H. Pearson, M.A., and Hbkberi A. Sieono, M.A., LL.D. Second Edition. Crown 8vo, 98. Livy. Books V-VII. With Introduction and Notes. By A. B. Cldbk, B.A. Second Edition. Revised by P. E. Matheson, M. A. Extra fcap. 8vo, 5«. Book V. By the same Editors. Extra fcap. 8vo, 2s. 6d. Book VII. By the same Editors. Extra fcap. Svo, »«. Books XXI-XXIII. With Introduction and Notes. By M. T. Tatham, M. A. Second Edition, Enlarged. Extra fcap. Svo, 5s. Book XXI. By the same Editor. Extra fcap. 8vo, 2s. 6d. Book XXII. With Introduction, Notes, and Maps. By the same Editor. Extra fcap. Svo, 2s. 6d. Selections (for Schools). With Notes and Maps. By H. Lee-Wabnbb, M.A. Extra fcap. Svo. In Parts, limp, each is. 6d. Part I. The Caudine Disaster. Part n. Hannihal's Campaign in Italy. Part III. The Macedonian "War. Ovid. Selections for the use of Schools. With Introduc- tions and Notes, and an Appendix on the Homan Calendar. By W. Ramsay, M.A. Edited by G. G. Ramsay, M.A. Third Edition. Extra fcap. Svo, 5». 6d. Tristia. Book I. The Text revised, with an Introduction and Notes. By S. G. Owen, B.A. Second Edition. Extra fcap. Svo, 3«. 6d. Tristia. Book III. With Introduction and Notes. By the same Editor. Extra fcap. Svo, 28. Plautus. Captivi. Edited by Wallace M. Lindsay, M.A. Extra fcap. Svo, 28. 6d. Trinummus. With Notes and Introductions. (Intended for the Higher Forms of Public Schools.) By C. E. Fbeeman, M.A., and A. Sloman, M.A. Extra fcap. Svo, 38. Pliny. Selected Letters (for Schools). With Notes. By C. E. Pbichabd, M.A., and E. R. Beenaed, M.A. Third Edition. Extra fcap. Svo, 3s. Quintilian. Institutionis Oratoriae. Liber X. By W. Peter- son, M.A. Extra fcap. Svo, 3s. 6d. Sallust. With Introduction and Notes. By W. W. Capes, M.A. Second Edition. Extra fcap. Svo, 48. 6d. Oxford: Clarendon Press. Greek : Standard Works. 25 Tacitus. The Annals. Books I-IV. Edited, with Intro- duction and Notes (for the use of SohoolB and Junior Students), by- H. FuRNEAUX, M.A. Extra foap. 8vo, 5«. The Annals. Book I. With Introduction and Notes, by the same Editor. Extra foap. 8vo, limp, is. Terence. Andria. With Notes and Introductions. By C. E. Ereeman, M.A., and A. Sloman, M.A. Extra foap. 8to, 3«. Adelphi. With Notes and Introductions. (Intended for the Higher Forms of Public Schools.) By A. Sloman, M.A. Extra foap. Svo, 3«. Phormio. With Notes and Introductions. By A. Sloman, M.A. Extra foap. Svo, 3s. Tibullus and Propertius. Selections. Edited by G. G. Eamsat, M.A. (In one or two parts.) Extra foap. Svo, 6«. Virgil. With an Introduction and Notes. By T. L. Papillon, M.A., and A. E. Haigh, M.A. 2 vols. Crown Svo, las. Aeneid. By the same Editors. In Four Farts. Crown Svo, 3s. eacli. Bucolics and Georgics. By the same Editors. Crown Svo, 3s. 6(?. Bucolics. Edited by C. S. Jeeram, M.A. Extra fcap. Svo, 25. ^d. Georgics, Books I, II. By the same Editor. Extra foap. Svo, 2s. 6cJ. Georgics, Books III, IV. By the same Editor. Extra 'to foap. Svo, 2*. dd,. — Aeneid I. With Introduction and Notes. By the same Editor. Extra fcap. Svo, limp, i«. (sd. Aeneid IX. Edited, with Introduction and Notes, by A. E. Haigh, M.A. Extra foap. Svo, limp, is. dd. In two Parts, 2». (2) GREEK. STANDARD WORKS AND EDITIONS. Allen. Notes on Abbreviations in Greek Manuscripts. By T. W. Allen, M.A., Queen's College, Oxford. Eoyal Svo, 5*. Chandler. A Practical Introduction to Greek Accentuation, by H. W. Chandler, M.A. Second Edition, los. 6d. London: Henbt Fbov^de, Amen Comer, E.G. 26 /. Literature and Philology. Haigh. The Attic Theatre. A Description of the Stage and Theatre of the Athenians, and of the Dramatic Performances at Athens. By A. E. Haish, M.A. 8vo, 12s. 6(J. Head. Historia Numorum : A Manual of Greek Numismatics. By Bakolat V. Head, D.C.L. Koyal 8to, half-bound, 2l. 2s. Hicks. A Manual of Greek Historical Inscriptions. By E. L. Hicks, M.A. 8to, 10s. 6d. King and Cookson. The Principles of Sound and Inflexion, as illustrated in the Greek and Latin Languages. By J. E. KiuG, M.A., aud Christophee Cookson, M.A. Svo, i8«. Liddell and Scott. A Greek-English Lexicon, by H. G. LiDDELL, D.D., and Eobekt Soott, D.D. Seventh Edition, ttevised and Augmented throughout. 4to, i2. i6e. Papillon. Manual of Comparative Philology. By T. L. Papillon, M.A. Third Edition. Crown 8vo, 6s. Paton and Hicks. The Inscriptions of Cos. By W. R. Paton and E. L. Hicks. Royal 8vo, linen, with Map, 28s. Veitch. Greek Verbs, Irregular and Defective. ByW.VEiTCH, LL.D. Fourth Edition. Crown 8vo, 10*. 6d. Vocabulary, a copious Greek-English, compiled from the best authorities. 24mo, 3*. Aeschinem et Isocratem, Scholia Graeca in. Edidit G.DiNDOBPins. 1852. 8vo, 4s. Aeschines. See under Oratores Attici, and Demosthenes. Aesehyli quae supersunt in Codice Laurentiano quoad effici potuit et ad oognitionem neoesse est visum typis desoripta edidit E. Mekkel. Small folio, il. is. Aeschylus : Tragoediae et Fragmenta, ex recensione Guil. Dindokeii. Second Edition. 1851. 8vo, 5*. 6rf. Annotationes Gtjil. Dindoefii. Partes II. 1841. 8vo, io«. Anecdota Graeca Oxoniensia. Edidit J. A. Ceameb,, S.T.P. Tomi IV. 1835. 8vo, il. 2s. Graeca e Codd. Mss. Bibliothecae Eegiae Parisiensis. Edidit J. A. Ceamek, S.T.P. Tomi IV. 1839. 8ro, il. 2s. Apsinis et Iiongini Rhetorica. E Codicibus mss. recensuit JOH. Bakics. 1849. 8vo, 3s. Oxford : Clarendon Press. Greek: Standard Works. 27 Aristophanes. A Complete Concordance to the Comedies and Fragments. By Hbnkt Dunbak, M.D. 4to, \l.\s. J. Caravellae Index in Aristophanem. 8vo, 35. Comoediae et Fragmenta, ex recensione GuiL. Dindokfii. Tomi II. 1835. 8vo, IIS. Annotationes GuiL. DiNDORFii. Partes II. 8vo, ii«. Scholia Graeca ex Codicibus aucta et emendata a GuiL. DiNDOEPlo. Partes III, 1838. 8vo, iJ. ARISTOTLE. Ex recensione Immanuelis Bekkeei. Aceedunt Indices Sylburgiani. Tomi XL 1837. Svo, 2Z. los. The volumes (except vols. I and IX) may be had separately, price 68. M. each. Ethica Nicomachea, recognovit brevique Adnotatione critica instruxit I. Btwatee. 8vo, ds, The same, on 4to paper^ for Marginal Notes, io«. 6A. Contributions to the Textual Criticism of Aristotle's Wieomachean Ethics. By Ingbam Btwatek. Stiff cover, 3S. dd. Notes on the Nicomachean Ethics of Aristotle. By J. A. Stewart, M.A. 2 vols. 8vo, 32s. The Polities, with Introductions, Notes, &c., by W. L. Newman, M.A., Fellow of Balliol College, Oxford. Vols. I and II. Medium 8vo, 28s. The Politics, translated into English, with Introduction, Marginal Analysis, Notes, and Indices, by B. Jowett, M.A. Medium 8vo. 2 vols, 3 IS. Aristotelian Studies. I. On the Structure of the Seventh Book of the Nicomachean Ethics. By J. C. Wilson, M.A. 8vo, stiff covers, 5s The English Manuscripts of the Nicomachean Ethics, described in relation to Bekker's Manuscripts and other Sources. By J. A. Stewakt, M.A. (Anecdota Oxon.) Small 4to, 3*. 6d. On the History of the process by which the Aristotelian "Writings arrived at their present form. By E. Shute, M.A. Svo, ^s.M. — Physics. Book VII. Collation of various mss. ; with Introduction by E. Shute, M.A. (Anecdota Oxon.) Small 4to, 2«. London; Henkt Pbowde, Amen Comer, E.C. 28 /. Literature and Philology. Choerobosoi Dictata in Theodosii Canones, neenon Epimerismi inPsalmos. E Codioibus MSS. edidit TH0MA3 Gaispobd, S.T.P. Tomi III. 8vo, I5«. Demosthenes. Ex recensione Guil. Dindoefii. Tomi IX. 8vo, 2I. 6«. Separately : — Teztus, il. IS. Annotationes, 158. Scholia, io«. Demosthenes and Aeschines. The Orations of Demosthenes and Aeschines on the Crown. With Introductory Essays and Notes. By Gr. A. SiMCox, M.A., and W. H. SiMCOX, M.A. 8vo, 12s. Euripides. Tragoediae et Fragmenta, ex recensione Guil. DiNDOBPll. Tomi II. 1833. 8to, 10*. Annotationes Guil. Dindoefii. Partes II. 8vo, io«. Scholia Graeca, ex Codicibus aucta et emendata a Guil. DiNDORFio. Tomi IV. 8vo, i?. i6». Alcestis, ex recensione G. Dindoefii, 8vo, a*. 6d. Harpoerationis Ije^con. Ex recensione G. Dindoefii. Tomi II. 8to, ios. 6d. Hephaestionis Enchiridion, Terentianus Maurus, Proclus, &c. Edidit T. Gaisfobd, S.T.P. Tomi II. loj. Heracliti Ephesii Reliquiae. Recensuit I. BrwATER, M.A. Appendicis loco additae sunt Diogenis Laertii Vita Heracliti, Particulae Hippocratei De Diaeta Lib. I, Epistolae Heracliteae. 8vo, 6s. Herodotus. Books V and VI. Terpsichore and Erato. Edited, with Notes and Appendices, by EvELTN Abbott, M.A., LL.D. 8vo, with two Maps, los. 6d. HOMER. A Complete Concordance to the Odyssey and Hymns of Homer ; to which is added a Concordance to the Parallel Passages in the niad, Odyssey, and Hymns. By Hbnet Ddnbab, M.D. 4to, ij. is. Seberi Index in Homerum. 1780. 8vo, 6s. 6d. A Grammar of the Homeric Dialect. By D. B. Monro, M.A. Second Edition. 8vo, 148. Ilias, cum brevi Annotatione C. G. Heynii. Accedunt Scholia minora. Tomi II. 8vo, 15*. Oxford: Clarendon Frsss, Greek : Standard Works. 29 HOMER {continued). Ilias, ex rec. Gun. Dindoefii. 8vo, 5«. 6d. Scholia Graeca in Iliadem. Edited by W. Dindorf, after a new collation of the Venetian MSB. by D. B. MoNEO, M.A., Provost of Oriel College. 4 vols. 8vo, 2I. 10a. Scholia Graeca in Iliadem Townleyana. Kecensuit Ernestds Maass. 3 vols. 8vo, il. 16s. Odyssea, ex rec. G. Dindoiifii. 8vo, 5«. 6d. Scholia Graeca in Odysseam. Edidit Guil. Dindokfius. Tomi II. 8vo, 1 55. 6d. Odyssey. Books I-XII. Edited with English Notes, Appendices, &c. By W. W. Meert, D.D., and the late James Riddell, M.A. Second Edition. Svo, i6«. Hymni Homerici. Codicibus denuo eollatis reeensuit Alfeedus Goodwin. Small folio. With four Plates. 21s.net. Oratores Attici, ex recensione Bekkeri : I. Antiphon, Andocides, et Lysias. Svo, 7*. II. Isocrates. Svo, 7*. III. Isaeus, Aeschines, Lyourgus, Dinarchus, &c. Svo, 7*. Paroemiographi Graeci, quorum pars nunc primum ex Codd. iiss. vulgatur. Edidit T. Gaisfoed, S.T.P. Svo, 5*. M. PLATO. Apology, with a revised Text and English Notes, and a Digest of Platonic Idioms, by James Kiddell, M.A. Svo, S«. 6d. Philebus, with a revised Text and English Notes, by Edward Postb, M.A, Svo, 7*. 6d. Sophistes and Politicus, with a revised Text and English Notes, by L. Campbell, M.A. Svo, iSs. Theaetetus, with a revised Text and English Notes, by L. Campbell, M.A. Second Edition. Svo, los. 6d. The Dialogues, translated into English, with Analyses and Introductions, by B. Jowett, M.A. Third Edition. 5 vols, medium Svo, 4?. 4». In half-moroooo, jZ. The Republic, translated into English, with Analysis and Introduction, by B. Jowett, M.A. Third Edition. Medium Svo, I2s.6d.; half-roan, 144. Index to Plato. Compiled for Prof. Jowett's Translation of the Dialogues. By Evelyn Abbott, M.A. Svo, paper covers, 28. 6(i. London : Hehby fBOWDE, Amen Comer, E.C. 30 /. Literature and Philology. Plotinus. Edidit F. Creuzer. Tomi III. 4to, \l. 8». Plutarehi Moralia, id est, Opera, exceptis Vitis, reliqna. Edidit Dahiel "Wtttenbach. Aocedit Index Graeoitatie. Tomi VIII. Partes XV. 1 795-1830. 8vo, cloth, 3?. los. Polybius. Selections. Edited by J. L. Strachan-Davidson, M.A. With Maps. Medium 8 vo, buokram, 2 1«. SOPHOCLES. The Plays and Fragments. With English Notes and Introductions, by Lewis Campbell, M.A. 2 vols. Vol. I. Oedipus Tyrannus. Oedipus Coloneus. Antigone. 'Sto, i6«. Vol. II. Ajax. Electra. Trachiniae. Philoctetes. Fragments. 8to, i6«. Tragoediae et Fragmenta, ex recensione et cum eom- mentariisGuiL.DiNDOKFii. Third Edition. 2 vols. Foap. 8to, ll. is. Each Play separately, limp, 2S. 6d. Tragoediae et Fragmenta cum Annotationibus GuiL. DlNDOKFii. Tomi II. 8vo, ios. The Text, Vol. I, 5*. 6d. The Notes, Vol. II, 4s. 6d. Stobaei Florilegium. Ad mss. fidem emendavit et sup- plevit T. Gaiseoed, S.T.P. Tomi IV. 8to, il. ' Eclogarum Physicarum et Ethicarum libri duo. Ac- cedit Hieroclis Commentariua in aurea oarmina Pythagoreorum. Ad MSB. Codd. recensuit T. Gaisfoed, S.T.P. Tomi II. Svo, ii». STKABO, Selections from. "With an Introduction on Strabo's Life and Works. By H. F. Tozee, M.A., F.R.G.S. With Maps and Plans. 8vo, cloth, 12s. Thucydides. Translated into English, with Introduction, Marginal Analysis, Notes, and Indices. By B. JowEir, M.A., Begius Professor of Greek. 2 vols. Medium 8vo, il. 12s. XENOPHON. Ex rec. et cum annotatt. L. Dindorfii. I. Historia Graeea. Second Edition. 8vo, log. 6rf. II. Expeditio Cyri. Second Edition. 8to, los. 6rf. III. Institutio Cyri. Svo, io«. 6d. IV. Memorabilia Soeratis. 8vo, is. 6d. V. Opuscula Politica Equestria et Venatica cum Arriani Libello de Venatione. 8vo, los. 6d. Oxford: Clarendon Press, Greek: Educational Works. 31 GREEK EDUCATIONAL WORKS. Grammars, Exercise Books, &c. Chandler. The Elements of Greek Accentuation : abridged from hislargerworkby H. W. Chandler, M.A. Extra fcap. 8vo, 3*. 6d. King and Cooksou. An Introduction to the Comparative Grammar of Greek and Latin. By J. E. KiNa, M.A., and C. Cookson, M.A. Extra fcap. 8vo, 5s. 6d. Liddell and Scott, An Intermediate Greek -English Lexicon, founded upon the Seventh Edition of Liddell and Soott's Greek Lexicon. Small 4to, 1 2s. 6d, Liddell and Scott. A Greek-English Lexicon, abridged from Liddell and Scon's 4to edition. Square i2mo, 7*. 6d. Miller. A Greek Testament Primer. An Easy Grammar and Reading Book for the use of Students beginning Greek. By the Rev. E. Millee, M.A. Second Edition. Extra fcap. 8vo, 3*. dd. Moulton. The Ancient Classical Drama. A Study in Literary Evolution. Intended for Readers in English and in the Original. By R. G. Moulton, M.A. Crown 8vo, 8s. 6d. "Wordsworth. A Greek Primer, for the use of beginners in that Language. By the Right Rev. Chables Wordsworth, D.C.L. Seventy-seventh, Thousand. Extra fcap. 8vo, is. 6d. Graeeae Grammaticae Rudimenta in usum Scholarum. Auctore Caeolo Wordsworth, D.C.L. Nineteenth Edition. lamo, 48. A Primer of Greek Prose Composition. By J. Y. Sargent, M.A. Extra fcap. Bvo, 3*. 6d. *^* A Key to the above, price 5*. net. Supplied to Teachers only, on application to the Secretary, Clarendon Press. Passages for Translation into Greek Prose. By J. Young Sargent, M.A. Extra fcap. 8vo, 3s. Bxemplaria Graeoa. Being Greek Renderings of Selected ' Passages for Translation into Greek Prose.' By the same Author. Extra fcap. 8vo, 3«. London : Hbhbt Fkowde, Amen Comer, E.G. 32 /. Literature and Philology. Models and Materials for Greek Iambic Verse. By J. Y. Sasqent, M.A. Extra fcap. 8to, 48. dA. Graeee Reddenda. By C. S. Jeeeam, M.A. Extra fcap. 8vo, 2s. 6d. Reddenda Minora ; or, Easy Passages, Latin and Greek, for Unseen Translation. By C. S. Jbbeam, M.A. Third Edition. Extra fcap. 8yo, is. 6d. Angllce Reddenda; or, Extracts, Latin and Greek, for Unseen Translation. By C. S. Jebbau, M.A. Extra fcap. Sto, 28. 6d. Anglice Reddenda. Second Series. By the same Author. Extra fcap. 8vo, 3s. Models and Exercises in Unseen Translation. By H. F. Eox, M.A., and T. M. Beomlet, M.A. Extra fcap. 8vo, 5«. 6d. *»* A Key to Passages quoted in the above, price 6ii. Supplied to Teachers only, on application to the Secretary, Clarendon Press. Golden Treasury of Ancient Greek Poetry. By R. S. Weight, M.A. Second Edition. Eevised by Eveitn Abbott, M.A., LL.D. Extra fcap. 8vo, 10s. 6d. Golden Treasury of Greek Prose, being a Collection of the finest passages in the principal Greek Prose Writers, with Introductory Notices and Notes. By E. S. Weight, M.A., and J. E. L. Shadwell, M.A. Extra fcap. 8to, 4s. 6(2. Gejixk Beasees. Easy Greek Reader. By Evelyn Abbott, M.A. In one or two Parts. Extra fcap. 8vo, 3*. First Greek Reader. By W. G, Rushbeooke, M.L. Third Edition. Extra fcap. 8vo, 2a. 6d. Second Greek Reader. By A. M. Bell, M.A. Second Edition. Extra fcap. 8to, 3s. Specimens of Greek Dialects ; being a Fourth Greek Reader. With Introductions, &c. By W. W. Merbt, D.D. Extra fcap. 8vo, 4*. 6d. Selections &om Homer and the Greek Dramatists ; being a Fifth Greek Beader. With Explanatory Notes and Introductions to the Study of Greek Epic and Dramatic Poetry. By Evelyn Abbott, M.A. Extra fcap. 8vo, 48. 6d. Oxford : Clarendon Press. Greek: Educational Works. 33 Greek Classics pob, Schools. Aeschylus. In Single Plays. Extra feap. 8vo. I. Agamemnon. With Introduction and Notes, by Arthur Sidgwick, M.A. Fourth Hdition. 3s. II. Choephoroi. By the same Editor. 3*. III. Eumenides. By the same Editor. New Edition. 3*. IV. Prometheus Bound. With Introduction and Notes, by A. 0. Peiokabd, M.A. Second Edition. 2e. Aristophanes. In Single Plays. Edited, with English Notes, Introductions, &c., by W. W. Meret, D.D. Extra foap. 8vo. I. The Acharnians. TUrd Edition, 3*. II. The Clouds. Third Edition, 3s. III. The Frogs. Third Edition, 3s. IV. The Knights. Second Edition, 3s. V. The Birds. 3s. 6d. VI. The Wasps. 3s. 6d. Cebes. Tabula. With Introduction and Notes. By C. S. Jeeeam, M.A. Extra foap. 8vo, 2s. 6d. Demosthenes. Orations against Philip. With Introduction and Notes, by Evelyn Abbott, M.A., and P. E. Matheson, M.A. Vol. I. Philippic I. Olynthiacs I-III. Third Edition. Extra foap. 8vo, 3*. Vol.11. De Pace, Philippic II, DeClieraoneso, Philippic III. Extra fcap. 8vo, 4s. 6d. Euripides. In Single Plays. Edited with Introduction and Notes. Extra foap. 8to. I. Alcestis. By C. S. JereaMj M.A. Third Edition. is.6d. II. Cyclops. By W. E. Long, M.A. %s. 6d. III. Hecuba. By C. H. Eussell, M.A. is. 6d. IV. Helena. By C. S. Jeream, M.A. 35. V. Heracleidae. By C. S. Jerram, M.A. 3*. VI. Iphigenia in Tauris. By the same Editor. 3*. VII. Medea. ByC.B. Heberden,M.A. Second Edition. 2s. VIII. Bacchae. By A. H. Cebickshank, M.A. q,s. 6d. London : Hshet Feowde, Amen Comer, E.G. D 34 /. Liter ahtre and Philology. Herodotus. Book IX. Edited, \1rith Notes, by Evelyn Abbott, M.A. Extra foap. 8vo, 3a. Selections. Edited, with Introduction and Notes, by W. W. Meret, D.D. Extra fcap. 8to, 2s. dd. Homer. I. For Beginners. Iliad, Book III. By M. T. Tatham, M.A. Extra fcap. 8vo, is. 6(Z. II. Iliad, Books I-XII. With an Introduction and a brief Homeric Grammar, and Notes. By D. B. MoNKO, M.A. Third Edition. Extra fcap. 8vo, 6s. III. Iliad, Books XIII-XXIV. With Notes. By the same Editor. Second Edition. Extra foap. 8vo, 6*. IV. Iliad, Book I. By the same Editor. Second Edition. Extra fcap. 8to, 2*. V. Iliad, Book XXI. With Introduction and Notes. By Hekbekt Hailstone, M.A. Extra foap. 8vo, is. 6d. VI. Odyssey, Books I-XII. By W. W. Meeey, D.D. Fiftieth Thousand. Extra fcap. 8to, 6s. Books I and II, separately, each m. 6d. Booka VI and VII. Extra fcap. 8vo. is. 6d. VII. Odyssey, Books VII-XII. By the same Editor. Extra fcap. 8vo, 3*. VIIT. Odyssey, Books XIII-XXIV. By the same Editor. Thirteenth Thousand. Extra foap. 8vo, 5*. Lueian. Vera Historia. By C. S. Jerram, M.A. Second Edition. Extra fcap. 8vo, is. 6d. Lysias. Epitaphios. Edited, with Introduction and Notes, by E. J. Shell, B.A. Extra foap. 8vo, 2s. Plato. With Introduction and Notes. By St. George Stock, M.A. Extra fcap. 8vo. The Apologj'. Second Edition. 2s. 6d. Crito, 2S. Meno. Second Edition. 2S. 6d, Selections. With Introductions and Notes. By John PuKTES, M.A., and Preface by B. Jowett, M.A. Second Edition. Extra foap. 8to, j*. Plutarch. Lives of the Gracchi. Edited, with Introduction, Notes, and Indices, by G. E. Undebhill, M.A. Crown 8vo. 4*. 6d. Oxford: Clarendon FresB. Greek: Educational Works. Sophocles. Edited, with Introductions and English Notes, by Lewis Campbell, M.A., and Evelyn Abbott, M.A. Ne^D Edition. 2 vols. Extra foap. 8vo, los. 6d, Sold separately : Vol. I, Text, 4s. 6d. ; Vol. II, Explanatory Notes, 6*. Or in single Plays: — Oedipus Coloneus, Antigone, i«. gd. each; Oedipus Tyrannus, Ajax, Electra, Trachiniae, Philoctetes, 2S. each. Oedipus Rex : Dindorf's Text, with Notes by the present Bishop of St. David's. Extra foap. 8vo, limp. Is. 6d. Theocritus (for Schools). With English Notes. By H. Ktn ASTON, D.D. (late Snow). Fifth Edition. Extra foap. 8vo, 4s. 6d. XENOPHOIT. Easy Selections (for Junior Classes). With a Vocabulary, Notes, and Map. By J. S. Phillpotts, B.C.L., and C. S. Jerbam, M.A. Third Edition. Extra fcap. 8vo, 3s. 6d. Selections (for Schools). With Notes and Maps. By J. S. Phillpotts, B.C.L. Fourth Edition. Extra foap. 8vo, 3*. 6d. Anabasis, Book I. Edited for the use of Junior Classes and Private Students. With Introduction, Notes, &c. By J. Maeshall, M.A. Extra fcap. 8vo, 2«. 6d. Anabasis, Book II. With Notes and Map. By C. S. Jbbeam, M.A. Extra foap. 8vo, 2s. Anabasis, Book III. With Introduction, Analysis, Notes, &e. By J. Marshall, M.A. Extra fcap. 8vo, 2s. 6(i. Anabasis, Book IV. By J. Marshall, M.A. Extra foap. 8vo, 2s. ■ Vocabulary to the Anabasis. By J. Marshall, M.A. Extra fcap. 8vo, is. 6d. Cyropaedia, Book I. With Introduction and Notes. By C. Bigg, D.D. Extra fcap. 8vo, 2«. Cyropaedia, Books IV and V. With Introduction and Notes. By C. Bigg, D.D. Extra fcap. 8vo, as. 6d. Hellenica, Books I, II. With Introduction and Notes. By G. E. Undekhill, M.A. Extra fcap. 8vo, 3s. Memorabilia. Edited with Introduction and Notes, &c., by J. Marshall, M_A. Extra fcap. 8vo, 48. 6d. London: Hehkt Fbowdb, Amen Comer, E.C, D 3 36 /, Literature and Philology. SECTION V. ORIENTAL LANGUAGES*. THE SACRED BOOKS OF THE BAST. Translated bt vabious Omental Scholabs, and edited by F. Max Mullee. Krst Series, Vols. I— XXIV. Demy 8vo, cloth. Vol. I. The Upanishads. Translated by F. Max Mullek. Part I. io«. 6d. Vol. II. The Sacred Laws of the Aryas, as taught in the Schools of Apastamba, Gautama, V^sish^^a, and Baudh^yana. Trans- lated by Prof. Geoeg Buhlee. Part I. los. 6d. Vol. III. The Sacred Books of China. The Texts of Con- f uclanism. Translated by James Legge. Part I. 12s. 6d. Vol. IV. The Zend-Avesta. Part I. The Vendidad. Trans- lated by James Dabmesteteb. ios. 6d. Vol. V. The Pahlavi Texts. Translated by E. W. West. Part I. I as. 6d. Vols. VI and IX. The Qur'an. Translated by E. H. PaLMEB. 218. Vol. VII. The Institutes of Vish;«u. Translated by Julius Jolly, ios. 6d. Vol. VIII. The Bhagavadgita, with The Sanatsu^atiya, and The Anuglta. Translated by KAshinIth Tkimeak Telang. io«. 6d. Vol. X. The Dhammapada, translated from P§,li by F. Max MtJLLEK ; and The Sutta-NipUta, translated from P^li by V, Fausboll ; being Canonical Books of the Buddhists, ios. 6d. Vol. XI. Buddhist Suttas. Translated from Pali by T. W. Bhts Davids, ios. 6d. Vol. XII. The ^atapatha-Br^hmaKa, according to the Text of the Madhyandina School. Translated by Julius Eggeling. Part I. Books I and II. 12s. 6d. Vol. XIII. Vinaya Texts. Translated from the Pali by T. W. Ehts Davids and Hermann Oldenbbbg. Part I. ios. 6d. * See also Aneodota Oxon., Series II, III, pp. 41-43, below. Oxford : Clarendon Press, Sacred Books of the East, 37 The Sacred Books of the East {continued). Vol. XIV. The Sacred Laws of the Aryas, as taught in the Schools of Apastamba, Gautama, Vasish^Aa and Baudhayana. Translated by Geoeg Buhlee. Part 11. los. 6d. Vol. XV. The Upanishads. Translated by F. Max Muller. Part II. io«. 6d, Vol. XVI. The Sacred Books of China. The Texts of Confucianism. Translated by James Legge. Part II. los.dd. Vol. XVII. Vinaya Texts. Translated from the Pali hy T. W. Ehys Davids and Hsemann Oldenberg. Part II. los. 6d. Vol. XVIII. Pahlavi Texts. Translated by E. W. West. Part II. 12S. 6d. Vol. XIX. The Fo-sho-hing-tsan-king. A Life of Buddha by Asvaghosha Bodhisattva, translated from Sanskrit into Chinese by Dharmaraksha, a.d. 420, and from Chinese into English by Samuel Beal. ios. 6d. Vol. XX. Vinaya Texts. Translated from the Pali by T. W. Rhys Davids and Hbemann Oldenbekq. Part III. los. 6d. Vol. XXI. The Saddharma-puKf^arika ; or, the Lotus of the True Law. Translated by H. Kj;en. 12s. 6d. Vol. XXII. (?aina-Sutras. Translated from Prakrit by Heemann Jaoobi. Parti. 10s. 6d. Vol. XXIII. The Zend-Avesta. Part II. Translated by James Dabmestetee. ios. 6d. Vol. XXIV. Pahlavi Texts. Translated by E. W. West. Part III. 10*. 6d. Second Series. Vol. XXV. Manu. Translated by Geokg Buhlee. 31*. Vol. XXVI. The &itapatha-Brahma«a. Translated by Julius Eggelikg. Part II. 12s. 6d. Vols. XXVII and XXVIII. The Sacred Books of China. The Texts of Confucianism. Translated by James Legge. Parts III and IV. 25«. Vols. XXIX and XXX. The Gnhya-Siitras, Rules of Vedic Domestic Ceremonies. Translated by Heemann Oldenbeeg. Part I (Vol. XXIX). 1 2s. 6d. Part II (VoL XXX). 12*. 6(7. London: Hehet Feowdb, Amen Comer E.O 38 /. Literature and Philology. The Sacred Books of the East (continued). Vol. XXXI. The Zend-Avesta. Part III. Translated by L. H. Mills, i 2i. 6d. Vol. XXXII. Vedic Hymns. Translated by F. Max MULLBB. Part I. iSs. 6d. Vol. XXXIII. Narada, and some Minor Law-books. Translated by JuLins JoLLT. io«. 6d. Vol. XXXIV, The Vedanta-Siitras, with xSankara's Com- mentary. Translated by G. Thibaut. i 2s. 6d. Vol. XXXV. The Questions of King Milinda. Part I. Translated from tlie Pali by T. W. Khts Davids, los. 6d. Vols. XXXIX and XL. The Sacred Books of China. The Texts of Taoism. Translated by Jambs Lbgge. 21s. Vol. XXXVII. The Contents of the Nasks, as stated in the Eighth and Ninth Books of the Dlnkard. Part I. Translated by E. W. West. 15s. Vol. XLI. ;5'atapatha-Brahma«a. Part III. Translated by JOLIUS EgGBLING. 128. 6d. In the Press : — Vol. XXXVI. The Questions of King Milinda. Part IL Translated by T. W. Rhys Davids. Vol. XXXVIII. . The Vedanta-Siitras. Part II. Vol. XLII. The Buddha-Aarita. Translated Ijy E. B. Cowell. The Sukhavati-vyftha. Translated by F. Max Mdller. ARABIC. A Practical Arabic Grammar. Compiledby A. O. Green, Brigade Major, Royal Engineers. Part I. Third Edition. Revised and TSnlarged. Crown 8vo, 7«. 6d. Part II. Third Edition. Sevised and Enlarged, los. 6d. BENGAIiI. Grammar of the Bengali Language ; Literary and Colloquial. By John Beames. Crown 8vo, cloth, 4s. 6d. CHINESE. The Chinese Classics: with a Translation, Critical and Exegetical Notes, Prolegomena, and Copious Indexes. By Jambs Leggb, D.D., LL.D. In Eight Volumes. Royal 8vo. Vol. I. Confucian Analects, &c. New Edition, xl. los. Vol. II. The Wo"rks of Mencius. i^. 10*. Vol. III. The Shoo-King ; or, The Book of Historical Documents. In two Parts, ll. los. each. Vol. IV. The She-King ; or, The Book of Poetry. In two Parts. iZ. los. each. Vol. V. The Ch un Ts'ew, with the Tso Chuen. In two Parts, il, los. each. Oxford : Clarendon Press. Oriental Languages. 39 CHINES!!. The Nestorian Monument of Hsi-an Fu in Shen-hsl, China, relating to the Diffusion of Christianity in China in the Seventh and Eighth Centuries. By James Legge, D.D. 2s. 6d. Record of Buddhistic Kingdoms; being an Account by the Chinese Monk Fa-HIEN of his travels in India and Ceylon (a.d. 399-414). Translated and annotated, with u Corean recension of the Chinese Text, by James Legge, D.D. Crown 4to, boards, io«. 6d. Catalogue of the Chinese Translation of the Buddhist Tripifaka, the Sacred Canon of the Buddhists in China and Japan. Compiled by BuNTiu Nanjio. 4to, il. 12s. 6d. Handbook of the Chinese Language. Parts I and II. Grammar and Chrestomathy. By James Summers. 8vo,il.Ss. CHAIiDEE. Book of Tobit. A Chaldee Text, from a unique JIS. in the Bodleian Library. Edited by Ad. Neubauee, M.A. Crown 8vo, 6s. COPTIC. Libri Prophetarum Majorum, cum Lamentationibus Jeremiae, in Dialecto Linguae Aegyptiacae Memphitica seu Coptica. Edidit cum Versione Latina H. Tattam, S.T.P. Tomi II. 8vo, 17*. Libri duodecim Prophetarum Minorum in Ling. Aegj^pt. Tulgo Coptica. Edidit H. Tattam, A.M. 8vo, 8«. 6d. Novum Testamentum Coptice, cura D. Wilkins. la.?. 6d. HEBREW. Psalms in Hebrew (without points). Cr. 8vo, 2,s. Driver. Notes on the Hebrew Text of the Books of Samuel. By S. R. Dbivek, D.D. 8vo, 14*. Treatise on the use of the Tenses in Hebrew. By S. E. Dbivke, D.D. Third JSdition. Crown 8vo, Is. 6d. Commentary on the Book of Proverbs. Attributed to Abraham Ibn Ezra. Edited from a Manuscript in the Bodleian Library by S. E. Dkivek, D.D. Crown 8vo, paper covers, 3s. 6d. A Hebrew and English Lexicon of the Old Testament, with an Appendix containing the Biblical Aramaic, based on the Thesaurus and Lexicon of Gesenius, by Ekanois Brown, D.D., S. B. Dkiveb, D.D., and C. A. Bkiggs, D.D. Parts I and II. Small 4to, each, 2«. 6d. Neubauer. Book of Hebrew Roots, by Abu '1-Walid Marwan ibn Janah, otherwise called Eabbi Y6nah. Now first edited, with an Appendix, by Ad. Nbubauek. 4to, 2I. Js. 6d. Spurrell. Notes on the Hebrew Text of the Book of Genesis. By G. J. Spueeell, M.A. Crown 8vo, los. 6d. "Wickes. Hebrew Accentuation of Psalms, Proverbs, and Job. By William Wickes, D.D. 8vo, 5*. Hebrew Prose Accentuation. 8vo, los. 6d. London; Hemet Fbowdb, Amen Corner, E.G. 40 /. Literature and Philology. SANSKRIT. — Sanskrit-English Dictionary, Etymologically and Philologically arranged, with special reference to Greek, Latin, German, Anglo-Saxon, !EngliBh, and other cognate Indo-European Languages. By Sir M. MoNiEE- Williams, D.C.L. 4to, 4?. 14s. 6(Z. Practical Grammar of the Sanskrit Language, arranged with reference to the Classical Languages of Europe, by Sir M. Moniek- WiLHAMS, D.C.L. Fov/rth Mdition. 8vo, 158. Nalopakhyanam. Story of Nala, an Episode of the Maha- bh^rata : Sanskrit Text, with a copious Vocabulary, and an improved version of Dean Milman's Translation, by Sir M. Monieb- Williams, D.C.L. Second Edition, Revised and Improved. 8vo, 15*. Sakuntala. A Sanskrit Drama, in seven Acts. Edited by Sm M. Moniee- Williams, D.C.L. Second Edition. 8vo, il. is. SYBIAC. — Thesaurus Syriaeus : collegerunt Quatrem^re, Bernstein, Lorsbaoh, Arnoldi, AgreU, Field, Eoediger : edidit E. Patnb Smith, S.T.P. Vol. I, containing Fase. I-V. Sm. fol. sZ. 5*. Fasc. VI, il. IS.; VII, il. lis. 6d.; VIII, il. 16s.; IX, il. £«. The Book of Kalilah and Dimnah. Translated from Arabic into Syriao. Edited by W. Weight, LL.D. 8vo. il. is. Cyrilli Arehiepiscopi Alexandrini Commentarii in Lueae Evangelium quae supersunt Syi-iaee. E MSS. apud Mns. Britan. edidit K. Patne Smith, A.M. 4to, il. 2s. Translated by R. Patne Smith, M.A. 2 vols. 8vo, 14s. Bphraemi Syri, Rabulae Episcopi Edesseni, Balaei, &e., Opera Seleota. E Codd. Syriacis MSS. in Museo Britannieo et Bibliotheca Bodleiana asservatis primus edidit J. J. OvEBBEOK. 8vo, il. is. John, Bishop of Ephesus. The Third Part of his Eccle- siastical History. [In Syriac] Now first edited by William CnBETON, M.A. 4to, il. 12s. Translated by R. Patne Smith, M.A. 8vo, io«. TAMIL. First Lessons in Tamil. By G. U. Pope, D.D. MftA Edition. Crown 8vo, 74. 6d. The Naladiyar, or Four Hundred Quatrains in Tamil. Edited by G. U. Pope, D.D. Svo, i8s. Large Paper, 2I. half Roxhurgh. ZEND. The Ancient MS. of the Yasna, with its Pahlavi Translation (a.d. 1323), generally quoted as Ja, and now in the posses- sion of the Bodleian library. Reproduced in Facsimile, and Edited with an Introductory Note by L. H. Mills, D.D. Half-bound, Imperial 4to, lol. los. net. Oxford: Clarendon Press. Anecdota Oxoniensia. 41 SECTION VI. ANECDOTA OXONIENSIA. (Crown 4to, stifif covers.) I. CLASSICAL SERIES. I. The English Manuscripts of the Nicomachean Ethics. By J. A. Stewart, M.A. 3*. 6d. II. Nonius Mai-cellus, de Compendiosa Doctrina, Harleian MS. 2719. Collated by J. H. Onions, M.A. 3s. 6rf. III. Aristotle's Physics. Book VII. With Introduction by K. Shuts, M.A. 2*. IV. Bentley's Plautine Emendations. From his copy of G-ronovius. By E. A. Sonnenschein, M.A. 2*. 6d. V. Harleian MS. 2610 ; Ovid's Metamorphoses I, II, III. 1-622 ; XXIV Latin Epigrams from Bodleian or other MSS. ; Latin Glosses on ApoUinaris Sidonius from MS. Digby 172. Collated and Edited by Robinson Ellis, M. A., LL.D. 4s. VI. A Collation with the Ancient Armenian Versions of the Greek Text of Aristotle's Categories, De Interpretatione, De Mundo, De Virtutibus et Vitiis, and of Porphyry's Introduction. By F. C. Contbeabe, M.A. 14s. VII. Collations from the Harleian MS. of Cicero 2,682,. By Albert C. Clark, M.A. 7s. 6d. II. SEMITIC SEKIES. I. Commentary on Ezra and Nehemiah. By Rabbi Saadiah. Edited by H. J. Mathews, M.A. 3*. 6d. II. The Book of the Bee. Edited by Ernest A. Wai.lis Budge, M.A. 21*. III. A Commentary on the Book of Daniel, By Japhet Ibn All. Edited and Translated by D. S. Margoliouth, M.A. 21s. IV. Mediaeval Jewish Chronicles and Chronological Notes. Edited by Ad. Neubauer, M.A. 14*. V. The Palestinian Version of the Holy Scriptures. Five more Fragments recently acquired by the Bodleian Library. Edited by G. H. Gwilliam, B.D. 6s. London : Ebnby Fbowde, Amen Corner, E.C. 42 /. Literature and Philology. ANECDOTA OXONIENSIA {continued). III. ABTAIT SEKIES. I. Buddhist Texts from Japan, i. VayraM/^edika. Edited by F. Max Mdllee. 3«. (>A. II. Buddhist Texts from Japan. 2. Sulih§,vati Vyiiha. Edited by F. Max MBllbe, M.A., and Buntid Nanjio. 7«. 6rf. III. Buddhist Texts from Japan. 3. The Ancient Palm- leaves containing the Pra^na-Paramita-Hridaya-SHtra and the Ushjslaha-Vigaya-DharaBl, edited by F. Max MiitLKB, M.A., and BuNTiu Nanjio, M.A. With an Appendix by G. Buhleb. io«. IV. KUtyayana's Sarvanukramawi of the K?gveda. With Extracts from ShadguruiiBhya's Commentary entitledVedS,rthadlpika. Edited by A. A. Maodonell, M.A., Ph.D. i6«. V. The Dharma Sa«?graha. Edited by Kenjiu Kasawaba, F. Max Mulleb, and H. Wenzel. 7*. 6rf. VII. The Buddha-Zarita of Asvaghosha. Edited, from three MSS., by E. B. Cowell, M.A. 12s. 6d. IT. MEDIAEVAL AND MODEBN SEBIES. I. Sinonoma Bartholomei. Edited by J. L. G. Mowat, M.A. 3s. 6d. II. Alphila. Edited by J. L. G. Mowat, M.A. la*. 6i. III. The Saltair Na Bann. Edited from a MS. in the Bodleian Library, by Whitley Stokes, D.C.L. yg. dd. IV. The Cath Einntraga, or Battle of Ventry. Edited by Kdno Mbteb, Ph.D., M.A. 6,?. V. Lives of Saints, from the Book of Lismore. Edited, with Translation, by Whitley Stokes, D.C.L. li. lis. 6d. Oxford : Clarendon Press. The Holy Scriptures, &c. 43 II. THEOLOGY. A. THE HOLY SCRIPTURES, APOCRYPHA, &c. COPTIC. Libri Prophetarum Majorum, cum Lamentationibus Jeremiae, in Dialecto Linguae Aegyptiaoae Memphitica seu Coptica, Edidit earn Versione Latirta H. Tattam, S.T.P. Tomi II. 8vo, 17s. Libri duodecim Prophetarum Minorum in Ling. Aegypt. vulgo Cciptica. Edidit H. Tattam, A.M. Svo, 8s. 6(i. Novum Testamentum Coptice, eura D. Wilkins. 1716. 4to, 12s. 6d. ENGLISH. The Holy Bible in the Earliest English Versions, made from the Latin Vulgate by John WYOLiFrB and his followers : edited by Eorshall and Madden. 4 vols. Eoyal 4to, 3I. 3s. Also reprinted from the above, with Introduction and Glossary by W. W. Skeat, Litt.D. I. The Books of Job, Psalms, Proverbs, Ecclesiastes, and the Song of Solomon. Extra fcap. 8vo, 3«. 6d. II. The New Testament. Extra fcap. 8vo, 6s. — The Holy Bible : an exact reprint, page for page, of the Authorised Version published in the year 1611. Demy 4to, half-bound, il. is. — The Holy Bible, Eevised Version*. Cheap editions for School Use. Kevised Bible. Pearl i6mo, cloth boards, i«. 6c?. Eevised New Testament. Nonpareil 32mo, 6d. ; Brevier i6mo, is. Long Primer 8vo, is. 6d. — The Oxford Bible for Teachers, containing the Holy Scriptures, together with a new, enlarged, and illustrated edition of the OxFOBD Helps to the Study of the Bible, comprising Introductions to the several Books, the History and Antiquities of the Jews, the results of Modem Discoveries, and the Natural History of Palestine, with copious Tables, Concordance and Indices, and a series of Maps. Prices in various sizes and bindings from 'js. 6d. to 2I. 2S. * The Revised Version is the joint property of the Universities of Oxford and Cambridge. London : Heset FbowdEi Amen Comer, E.G. 44 II' Theology. EI9'GLISH Helps to the Study of the Bible, taken from the OxroBD Bible fob Teaohees. New, Enlarged, and Illustrated Edition. Crown 8vo, 4«. 6d, The Psalter, or Psalms of David, and certain Canticles, with a Translation and Exposition in English, by Richabd Kollb of Ham- pole. Edited by H. E. Bbamlet, M.A., Fellow of S. M. Magdalen College, Oxford. With an Introduction and Glossary. Demy 8vo, il. is. Studia Biblica et Ecclesiastica. Essays in Biblical and Patristic Criticism, and kindred subjects. By Members of the Uni- versity of Oxford. 8vo. Vol. I, los. 6d. Vol. II, 12S. 6d. Vol. Ill, i6s. Lectures on the Book of Job. Delivered in Westminster Abbey by the Very Bev. G. G. Bkadlet, D.D. Second Edition. Crown 8vo, 7*. 6d. Iiectures on Ecclesiastes. Bythe same Author. Cr. 8 vo, 4«. 6d. The Book of Wisdom : the Greek Text, the Latin Vul- gate, and the Authorised English Version ; with an Introduction, Critical Apparatus, and a Commentary. By W. J. Deane, M.A. 4to, I2s. 6d. The rive Books of Maccabees, in English, with Notes and Illustrations by Hbnet Cotton, D.C.L. 8vo, los. 6d. The Book of Enoch. Translated from Dillmann's Ethiopic Text (emended and revised), and Edited by E. H. Charles, M.A. 8vo, i6«. List of Editions of the Bible in English. By Henry Cotton, D.C.L. Second Edition. 8vo, 8s. 6d. Bhemes and Doway. An attempt to show what has been done by Eoman Catholics for the diffusion of the Holy Scriptures in English. By Henet Cotton, D.C.L. 8to, gs. GOTHIC. Evangeliorum Versio Gothica, cum Interpr. et Annott. E. Benzelii. Edidit E. Lye, A.M. 4to, 1 2s. 6d. The Gospel of St. Mark in Gothic, according to the translation made by Wulpila in the Fourth Century. Edited by W. W. Skbat, Litt.D. Extra fcap. 8vo, 4*. GBEEK. Old Testament. Vetus Testamentum ex Versione Septuagiuta Interpretum secundum exemplar Vaticanum Eomae editum. Accedit potior varietas Codicis Alexandrini. Tomllll. i8mo, i8«. Vetus Testamentum Graece cum Variis Lectionibus. Editionem a E. Holmes, S.T.P. inchoatam continuavit J. Paesons, S.T.B. Tomi V. folio, J I. Oxford: Clarendon Press, The Holy Scriptures, &c. 45 GBEEK — A Concordance to the Septuagint and the other Greek Versions of the Old Testament (including the Apocryphal Books). By the late Edwin Hatch, M.A., and H. A. Redpath, M.A. Parts I-III. A-'IflBHA. Imperial 4to, eaeli, 21s, Part IV. In the Press. — Origenis Hexaplorum quae supersunt ; sive, Veterum Interpretum Graecorum in totum Vetus Testamentum Fragmenta. Edidi t Fkedeeiods Field, A.M. 2 vols. 1875. 4to, 5?. 5*. — Essays in Biblical Greek. By Edwin Hatch, M. A., D.D. 8¥o, io«. 6d. — An Essay on the Place of Ecclesiasticus in Semitic Literature. By D. S. Makgoliouth, M.A., Laudian Professor of Arabic in the University of Oxford. Small 4to, 2S. 6d. — New Testament. Novum Testamentum Graece. Anti- quissimorum Codicum Textus in ordine parallelo dispositi. Edidit E. H. Hansell, S.T.B. Tomi III. 8vo, 24*. — Novum Testamentum Graece. Aecedunt parallela S. Scriptnrae loca, &c. Edidit Cabolcs Lloyd, S.T.P.E. i8mo, 3s. On writing paper, with wide margin, 'js. 6d. Critical Appendices to the above, by W. Sandat, M.A. Extra fcap. 8vo, cloth, 3s. 6d. — Novum Testamentum Graece. Aecedunt parallela S. Scripturae loca, &c. Ed. C. Llotd, with Sandat's Appendices. Cloth, 6s. ; paste grain, •js. 6d. ; morocco, 10s. 6d. — Novum Testamentum Graece juxta Exemplar Millianum. i8mo, 2s. 6d. On writing paper, with wide margin, 'js. 6d. — Evangelia Sacra Graece. Fcap. 8vo, limp, i«. 6d. The Greek Testament, with the Eeadings adopted by the Kevisers of the Authorised Version : (i) Pica type, with Marginal Eeferences. Demy 8to, 10«. 6(i. (2) Long Primer type. Ecap. 8to, 4*. 6