De his qui notantur infamia
(Concerning Those Who Are Branded With Infamy.)
1 Iulianus libro primo ad edictum. Praetoris verba dicunt: ‘Infamia notatur qui ab exercitu ignominiae causa ab imperatore eove, cui de ea re statuendi potestas fuerit, dimissus erit: qui artis ludicrae pronuntiandive causa in scaenam prodierit: qui lenocinium fecerit: qui in iudicio publico calumniae praevaricationisve causa quid fecisse iudicatus erit: qui furti, vi bonorum raptorum, iniuriarum, de dolo malo et fraude suo nomine damnatus pactusve erit: qui pro socio, tutelae, mandati, depositi suo nomine non contrario iudicio damnatus erit: qui eam, quae in potestate eius esset, genero mortuo, cum eum mortuum esse sciret, intra id tempus, quo elugere virum moris est, antequam virum elugeret, in matrimonium collocaverit: eamve sciens quis uxorem duxerit non iussu eius, in cuius potestate est: et qui eum, quem in potestate haberet, eam, de qua supra comprehensum est, uxorem ducere passus fuerit: quive suo nomine non iussu eius in cuius potestate esset, eiusve nomine quem quamve in potestate haberet bina sponsalia binasve nuptias in eodem tempore constitutas habuerit.’
1 Julianus, On the Edict, Book I. The words of the Prætor are as follows: “He who is discharged from the army for disgraceful conduct, either by the Emperor, or by one to whom authority has been granted to act in the matter, is branded with infamy. This also applies to one who appears upon the stage for the purpose of acting, or declaiming; to one who follows the occupation of a procurer; to one who has been convicted in court of false accusation or betrayal of his client’s interest; to one who has been convicted of theft, robbery, injury, bad faith, or fraud, in his own name, or has compromised any of these offences; to one who has been condemned in his own name in an action based on partnership, guardianship, mandate, or deposit, in a direct action; to one who gave his daughter, who was under his control in marriage after the death of his son-in-law, he knowing him to be dead before the time had elapsed which is customary for a widow to mourn for her husband; to one who married her, being also aware of this, without the order of the person under whose control he was; to him who permitted him to marry her while he was under his control, being aware of the above mentioned facts; and also to one who, on his own responsibility, and not by the order, or in the name of the party under whose control he was, permits any male or female whom he has under his control, to contract two betrothals, or two marriages at the same time”.
2 Ulpianus libro sexto ad edictum. Quod ait praetor: ‘qui ab exercitu dimissus erit’: dimissum accipere debemus militem caligatum, vel si quis alius usque ad centurionem, vel praefectum cohortis vel alae vel legionis, vel tribunum sive cohortis sive legionis dimissus est. hoc amplius Pomponius ait etiam eum, qui exercitui praeest, licet consularibus insignibus utitur, ignominiae causa ab imperatore missum hac nota laborare: ergo et si dux cum exercitui praeest dimissus erit, notatur, et si princeps dimiserit et adiecerit ignominiae causa se mittere, ut plerumque facit, non dubitabis et ex edicto praetoris eum infamia esse notatum: non tamen si citra indignationem principis successor ei datus est. 1Exercitum autem non unam cohortem neque unam alam dicimus, sed numeros multos militum: nam exercitui praeesse dicimus eum, qui legionem vel legiones cum suis auxiliis ab imperatore commissas administrat: sed hic etiam eum, qui ab aliquo numero militum missus est, quasi ab exercitu missum sic accipiemus. 2‘Ignominiae causa missum’: hoc ideo adiectum est, quoniam multa genera sunt missionum. est honesta, quae emeritis stipendiis vel ante ab imperatore indulgetur: est causaria, quae propter valetudinem laboribus militiae solvit: est ignominiosa. ignominiosa autem missio totiens est, quotiens is qui mittit addidit nominatim ignominiae causa se mittere: semper enim debet addere, cur miles mittatur. sed et si eum exauctoraverit, id est insignia militaria detraxerit, inter infames efficit, licet non addidisset ignominiae causa se eum exauctorasse. est et quartum genus missionis, si quis evitandorum munerum causa militiam subisset: haec autem missio existimationem non laedit, ut est saepissime rescriptum. 3Miles, qui lege Iulia de adulteriis fuerit damnatus, ita infamis est, ut etiam ipsa sententia eum sacramento ignominiae causa solvat. 4Ignominia autem missis neque in urbe neque alibi, ubi imperator est, morari licet. 5Ait praetor: ‘qui in scaenam prodierit, infamis est’. scaena est, ut Labeo definit, quae ludorum faciendorum causa quolibet loco, ubi quis consistat moveaturque spectaculum sui praebiturus, posita sit in publico privatove vel in vico, quo tamen loco passim homines spectaculi causa admittantur. eos enim, qui quaestus causa in certamina descendunt et omnes propter praemium in scaenam prodeuntes famosos esse Pegasus et Nerva filius responderunt.
2 Ulpianus, On the Edict, Book VI. The words of the Prætor: “Who is discharged from the army”, must be understood to refer to one who wears the military insignia, as, for instance, where anyone up to the rank of centurion, or prefect of a cohort, or of a troop, or of a legion, or the tribune of a cohort, or of a legion, is discharged. Pomponius goes still further, and says that the commander of an army, even though he may wear the badges of consular rank, if dismissed by the Emperor for some disgraceful cause, is branded with this mark of infamy. Therefore if a general is discharged while in command of the army he is branded with infamy, and where the Emperor discharges him, and adds that this is done on account of disgraceful conduct, as he generally does, there is no doubt that he is branded with infamy under the Edict of the Prætor. This is not the case, however, if a successor is appointed for him without his having incurred the displeasure of the Emperor. 1By an “army” we do not mean a single cohort, or a single troop, but several bodies of soldiers; hence we say that a man commands an army when he has charge of a legion, or a number of legions which, with the auxiliaries, have been entrusted to him by the Emperor. But, in this instance, where a man has been dismissed from the command of any body of soldiers, we must understand that he has been dismissed from the army. 2The phrase, “Discharged on account of disgraceful conduct”, is added for the reason that there are several kinds of discharges, one of these is an honorable discharge allowed by the Emperor, where a man has finished his time of service, or where this was done previously through the indulgence of the Emperor; another is where a soldier is released from military service on the ground of ill health; and there is also dishonorable discharge. The latter occurs whenever he who orders it adds expressly that it is done on account of disgraceful conduct, and they ought always to add why the soldier is discharged. But where a man is degraded, that is to say deprived of his insignia of rank, he becomes infamous, even though the words, “degraded on account of disgraceful conduct”, were not added. There is a fourth kind of discharge where a party enters the military service in order to avoid performing the duties of an office, but this does not affect his reputation, as has been very frequently stated in rescripts. 3A soldier who has been convicted under the Lex Julia de Adulteriis, becomes infamous to such a degree that the sentence itself ignominiously releases him from his oath. 4Those who have been dishonorably discharged are not allowed to live either at Rome, or where the Emperor resides. 5The Prætor says: “He who appears upon the stage is infamous”. The stage, as defined by Labeo, means any place whether public or private, or on the street, where anyone appears or moves about making an exhibition of himself; provided that it is a place where persons, without distinction, are admitted for the purpose of viewing a public show; and those who contend for gain, as well as all those who appear upon the stage for compensation, are infamous; as Pegasus, and the younger Nerva have stated.
3 Gaius libro primo ad edictum provinciale. Qui autem operas suas locavit, ut prodiret artis ludicrae causa neque prodit, non notatur: quia non est ea res adeo turpis, ut etiam consilium puniri debeat.
3 Gaius, On the Provincial Edict, Book I. He who hires himself for the purpose of appearing in public exhibitions, and does not do so, is not branded with infamy; because the offence is not so disgraceful a one that even the intention to commit it should be punished.
4 Ulpianus libro sexto ad edictum. Athletas autem Sabinus et Cassius responderunt omnino artem ludicram non facere: virtutis enim gratia hoc facere. et generaliter ita omnes opinantur et utile videtur, ut neque thymelici neque xystici neque agitatores nec qui aquam equis spargunt ceteraque eorum ministeria, qui certaminibus sacris deserviunt, ignominiosi habeantur. 1Designatores autem, quos Graeci βραβευτὰς appellant, artem ludicram non facere Celsus probat, quia ministerium, non artem ludicram exerceant. et sane locus iste hodie a principe non pro modico beneficio datur. 2Ait praetor: ‘qui lenocinium fecerit’. lenocinium facit qui quaestuaria mancipia habuerit: sed et qui in liberis hunc quaestum exercet, in eadem causa est. sive autem principaliter hoc negotium gerat sive alterius negotiationis accessione utatur (ut puta si caupo fuit vel stabularius et mancipia talia habuit ministrantia et occasione ministerii quaestum facientia: sive balneator fuerit, velut in quibusdam provinciis fit, in balineis ad custodienda vestimenta conducta habens mancipia hoc genus observantia in officina), lenocinii poena tenebitur. 3Pomponius et eum, qui in servitute peculiaria mancipia prostituta habuit, notari post libertatem ait. 4Calumniator ita demum notatur, si fuerit calumniae causa damnatus: neque enim sufficit calumniatum: item praevaricator. praevaricator autem est quasi varicator, qui diversam partem adiuvat prodita causa sua: quod nomen Labeo a varia certatione tractum ait, nam qui praevaricatur, ex utraque parte constitit, quin immo ex adversa. 5Item ‘si qui furti, vi bonorum raptorum, iniuriarum, de dolo malo suo nomine damnatus pactusve erit’ simili modo infames sunt,
4 Ulpianus, On the Edict, Book VI. Sabinus and Cassius have given their opinion that athletes should not by any means be regarded as exercising the profession of an actor, because their object is to exhibit their strength; and, as a general thing, all men agree that it seems useful, and that neither musicians nor wrestlers, nor charioteers, nor those who wash horses, nor those who perform other duties in the sacred games, should be considered disgraced. 1Celsus holds that those who preside over the public games whom the Greeks call brabeutas, do not practice the theatrical profession, for the reason that they perform a public service, and do not act as players; and indeed this place is at present granted by the Emperor as an extraordinary favor. 2The Prætor says, “Who acts as a procurer”. He acts as a procurer who profits by the prostitution of slaves; but where anyone obtains such profit by means of persons who are free, he is in the same category. Moreover, where he makes this his principal occupation, or as an addition to some other business; as, for instance, where he is an inn-keeper or a stable-keeper and has slaves of this kind for attendance on strangers, and, by means of their opportunities he obtains money in this manner; or if he is a bath-keeper, as is the custom in some provinces, and has slaves for the purpose of taking care of the clothes of customers, and these are guilty of such practices in the baths, he is liable to the punishment of a procurer. 3Pomponius is of the opinion that a slave who uses for this purpose other slaves who are his private property, is branded with infamy after he has obtained his freedom. 4A party guilty of calumny is also branded with infamy, if judgment is rendered against him on that account; for it is not sufficient that he should have committed the act, and the same rule applies to a prevaricator. A prevaricator is, so to speak, a person who is not consistent, but who betrays his own side by assisting the other; the name Labeo says is derived from Varia Gertatione, for whoever prevaricates takes his position on both sides and, in fact, on the side of his adversary. 5Moreover, “Anyone who has been convicted of theft, robbery, injury, or bad faith in his own name, or has compromised any of these offences, in like manner, is infamous.”
5 Paulus libro quinto ad edictum. quoniam intellegitur confiteri crimen qui paciscitur.
5 Paulus, On the Edict, Book V. This is the case because a man who compromises a crime is considered as having committed it.
6 Ulpianus libro sexto ad edictum. ‘Furti’ accipe sive manifesti sive nec manifesti. 1Sed si furti vel aliis famosis actionibus quis condemnatus provocavit, pendente iudicio nondum inter famosos habetur: si autem omnia tempora provocationis lapsa sunt, retro infamis est: quamvis si iniusta appellatio eius visa sit, hodie notari puto, non retro notatur. 2Si quis alieno nomine condemnatus fuerit, non laborat infamia: et ideo nec procurator meus vel defensor vel tutor vel curator vel heres furti vel ex alia simili specie condemnatus infamia notabuntur, nec ego, si ab initio per procuratorem causa agitata est. 3‘Pactusve’ inquit ‘erit’: pactum sic accipimus, si cum pretio quantocumque pactus est: alioquin et qui precibus inpetravit ne secum ageretur erit notatus nec erit veniae ulla ratio, quod est inhumanum. 4Qui iussu praetoris pretio dato pactus est, non notatur. 4aSed et si iureiurando delato iuraverit quis se non deliquisse, non erit notatus: nam quodammodo innocentiam suam iureiurando adprobavit. 5‘Mandati condemnatus’: verbis edicti notatur non solum qui mandatum suscepit, sed et is, qui fidem, quam adversarius secutus est, non praestat. ut puta fideiussi pro te et solvi: mandati te si condemnavero, famosum facio. 6Illud plane addendum est, quod interdum et heres suo nomine damnatur et ideo infamis fit, si in deposito vel in mandato male versatus sit: non tamen in tutela vel pro socio heres suo nomine damnari potest, quia heres neque in tutelam neque in societatem succedit, sed tantum in aes alienum defuncti. 7Contrario iudicio damnatus non erit infamis: nec immerito. nam in contrariis non de perfidia agitur, sed de calculo, qui fere iudicio solet dirimi.
6 Ulpianus, On the Edict, Book VI. The term theft must be understood to mean either that which is manifest or non-manifest. 1Where a party who has been convicted of theft, or any other infamous offence, appeals, he is not to be included among infamous persons while the case is pending, but where the time fixed for the appeal has elapsed, he is considered infamous from the date of his conviction; although if his appeal appears to be ill founded, I am of the opinion that he should be branded from that day, and not from the time of the judgment. 2Where anyone loses a case while acting for another, he does not incur infamy; and, therefore, neither my agent, nor defender, nor guardian, nor curator, nor heir, will be branded with infamy in an action for theft, or any other of the same character; not even if the action was defended by an agent from the beginning. 3“Or compromised.” We understand compromise to mean where an agreement was made for a sum of money without reference to the amount; for, otherwise, if a party, by force or entreaty induces another not to proceed against him, he will be branded with infamy, so that no indulgence will be considered; which is inhuman. 4He who compromises for a given sum by order of the Prætor is not deemed infamous. 4aBut where an oath has been tendered, and the party swears that he has done no wrong, he will not be considered infamous, because he, to a certain extent, proves his innocence by his oath. 5Where anyone loses a case of mandate, he is, by the terms of the Edict, branded with infamy; and this applies not only to him who accepted the trust, but also to those who did not keep faith, where the other party depended upon his doing so; as, for instance, where I have become your surety and have made payment, if I obtain judgment against you in an action of mandate, I render you infamous. 6It should, by all means, be added that an heir sometimes has judgment rendered against him on his own account, and therefore becomes infamous; for instance, if he is guilty of bad faith with reference to a deposit, or a mandate. For an heir cannot have judgment rendered against him on his own account in cases arising out of guardianship, and partnership, because he does not succeed a deceased person either in guardianship or partnership, but only incurs liability for debts of the deceased. 7A party who loses his case in a contrary action brought against him, is not infamous; and not without reason, for in contrary actions there is no question of bad faith, but only one of calculation, which is generally decided by the court.
7 Paulus libro quinto ad edictum. In actionibus, quae ex contractu proficiscuntur, licet famosae sint et damnati notantur, attamen pactus non notatur, merito: quoniam ex his causis non tam turpis est pactio quam ex superioribus.
7 Paulus, On the Edict, Book V. In actions arising out of contracts, even though they involve infamy, and those who lose them are branded with it, still, where a party makes an agreement he does not become infamous, and very properly, since a compromise in cases of this kind is not disgraceful, as it is in the preceding ones.
8 Ulpianus libro sexto ad edictum. ‘Genero’ inquit ‘mortuo’: merito adiecit praetor: ‘cum eum mortuum esse sciret’, ne ignorantia puniatur. sed cum tempus luctus continuum est, merito et ignoranti cedit ex die mortis mariti: et ideo si post legitimum tempus cognovit, Labeo ait ipsa die et sumere eam lugubria et deponere.
8 Ulpianus, On the Edict, Book VI. The Prætor says “When the son-in-law is dead”, and appropriately adds, “When he knows that he was dead”, to prevent his being punished for ignorance; for, as the time of mourning is continuous, it is fitting that it should run from the day of the husband’s death, even if his widow is ignorant of the fact; and therefore, if she learns of it after the time fixed by law, Labeo says that she can put on mourning, and leave it off, on the same day.
9 Paulus libro quinto ad edictum. Uxores viri lugere non compelluntur. 1Sponsi nullus luctus est.
10 Idem libro octavo ad edictum. Solet a principe impetrari, ut intra legitimum tempus mulieri nubere liceat. 1Quae virum eluget, intra id tempus sponsam fuisse non nocet.
11 Ulpianus libro sexto ad edictum. Liberorum autem et parentium luctus impedimento nuptiis non est. 1Etsi talis sit maritus, quem more maiorum lugeri non oportet, non posse eam nuptum intra legitimum tempus collocari: praetor enim ad id tempus se rettulit, quo vir elugeretur: qui solet elugeri propter turbationem sanguinis. 2Pomponius eam, quae intra legitimum tempus partum ediderit, putat statim posse nuptiis se collocare: quod verum puto. 3Non solent autem lugeri, ut Neratius ait, hostes vel perduellionis damnati nec suspendiosi nec qui manus sibi intulerunt non taedio vitae, sed mala conscientia: si quis ergo post huiusmodi exitum mariti nuptum se collocaverit, infamia notabitur. 4Notatur etiam ‘qui eam duxit’, sed si sciens: ignorantia enim excusatur non iuris, sed facti. excusatur qui iussu eius, in cuius potestate erat, duxerit, et ipse, qui passus est ducere, notatur, utrumque recte: nam et qui obtemperavit, venia dignus est et qui passus est ducere, notari ignominia.
11 Ulpianus, On the Edict, Book VI. Mourning for children or parents is no impediment to marriage. 1Even where the husband was such a person that it was not proper to mourn for him, by the custom of our ancestors his widow cannot be married until the period prescribed by law has elapsed; for the Prætor goes back to the time during which a husband should be mourned, for this is customary in order to prevent confusion of blood. 2Pomponius thinks that where a woman has had a child within the time fixed by law, she can marry without delay, which I hold to be correct. 3It is not customary, as Neratius says, to mourn for enemies, or for persons condemned for treason, or for those who hang, or otherwise lay violent hands upon themselves, not from being tired of life, but on account of bad consciences. Therefore if anyone, after the death of a husband of this kind, marries his widow, she will be branded with infamy. 4He also is branded who marries her if he is aware of the fact; for ignorance of the law is not excusable, but ignorance of the fact is. He is excused who married her by the order of someone under whose control he was, and he who permitted him to marry her is branded with infamy. In both these instances, the rule is a very proper one, for he who obeyed is worthy of pardon, and he who suffered him to marry is branded with ignominy.
12 Paulus libro quinto ad edictum. Qui iussu patris duxit, quamvis liberatus potestate patria eam retinuit, non notatur.
12 Paulus, On the Edict, Book V. He who marries a woman under such circumstances, by the order of his father, even if he retains her after he is freed from the control of his father, is not branded with infamy.
13 Ulpianus libro sexto ad edictum. Quid ergo si non ducere sit passus, sed posteaquam duxit ratum habuerit? ut puta initio ignoravit talem esse, postea scit? non notabitur: praetor enim ad initium nuptiarum se rettulit. 1Si quis alieno nomine bina sponsalia constituerit, non notatur, nisi eius nomine constituat, quem quamve in potestate haberet: certe qui filium vel filiam constituere patitur, quodammodo ipse videtur constituisse. 2Quod ait praetor ‘eodem tempore’, non initium sponsaliorum eodem tempore factum accipiendum est, sed si in idem tempus concurrant. 3Item si alteri sponsa, alteri nupta sit, ex sententia edicti punitur. 4Cum autem factum notetur, etiam si cum ea quis nuptias vel sponsalia constituat, quam uxorem ducere vel non potest vel fas non est, erit notatus. 5Ex compromisso arbiter infamiam non facit, quia non per omnia sententia est. 6Quantum ad infamiam pertinet, multum interest, in causa quae agebatur causa cognita aliquid pronuntiatum sit an quaedam extrinsecus sunt elocuta: nam ex his infamia non inrogatur. 7Poena gravior ultra legem imposita existimationem conservat, ut et constitutum est et responsum. ut puta si eum, qui parte bonorum multari debuit, praeses relegaverit: dicendum erit duriori sententia cum eo transactum de existimatione eius idcircoque non esse infamem. sed si in causa furti nec manifesti in quadruplum iudex condemnavit, oneratum quidem reum poena aucta, nam ex furto non manifesto in duplum conveniri debuit: verum hanc rem existimationem ei non conservasse, quamvis si in poena non pecuniaria eum onerasset, transactum cum eo videtur. 8Crimen stellionatus infamiam irrogat damnato, quamvis publicum non est iudicium.
13 Ulpianus, On the Edict, Book VI. What then if he did not suffer him to marry, but ratified the marriage after it was contracted, for instance, if in the beginning he was ignorant that the woman came within the terms of the Edict, but ascertains this subsequently? He will not be branded with infamy, for the Prætor goes back to the commencement of the marriage. 1Where a party contracts two betrothals in the name of another, he will not be branded with infamy unless he contracted them in the name of a person of either sex whom he has under his control. Where a party suffers his son or his daughter to contract a betrothal, he is, to a certain extent, held to have contracted it himself. 2When the Prætor says, “At the same time”; it is not to be understood that the betrothals were contracted at the same time, but also that they existed during the same period. 3Moreover, where a woman is betrothed to one man and married to another, she is punished by the terms of the Edict. 4Since it is the act which is branded with infamy, likewise, where a man contracts marriage or betrothal with a woman whom he either cannot lawfully marry, or with whom marriage is not right, he will be branded with infamy. 5An arbiter does not incur infamy by reason of a reference to arbitration because his award is not in every respect equivalent to a judgment. 6As to what relates to infamy, it makes a great difference where judgment is rendered after the trial of a case in which something was stated which was not to the purpose, for infamy is not incurred by matters of this kind. 7Where a penalty more severe than that authorized by law is imposed, the reputation of the party is preserved. This has already been established by rescripts and opinions; as, for instance, where a magistrate banished a party who should have been fined a portion of his property, it must be said that by this more severe sentence the party has compromised for the maintenance of his reputation, and that therefore he is not infamous. Where, however, in a case of non-manifest theft, the judge fines the culprit fourfold the amount, the latter is, in fact, oppressed with an increased penalty; (for in a case of nonmanifest theft he only should be sued for double the amount) but this does not preserve his reputation, although if he had not been oppressed with a pecuniary penalty, he would still have been considered to have made a compromise. 8Conviction for the crime of swindling imposes infamy upon the offender, even though it may not be the subject of a criminal prosecution.
14 Paulus libro quinto ad edictum. Servus, cuius nomine noxale iudicium dominus acceperit, deinde eundem liberum et heredem instituerit, ex eodem iudicio damnatus non est famosus, quia non suo nomine condemnatur: quippe cum initio lis in eum contestata non sit.
14 Paulus, On the Edict, Book V. Where a master defended his slave in a noxal action, and afterwards liberated him and made him his heir, and judgment was rendered against the slave in the same action, he does not become infamous, for the reason that he was not condemned on his own account, since in the beginning he was not a party to the joinder of issue.
15 Ulpianus libro octavo ad edictum. Notatur quae per calumniam ventris nomine in possessionem missa est, dum se adseverat praegnatem,
15 Ulpianus, On the Edict, Book VIII. A woman is branded with infamy who is placed in possession of an estate in the name of an unborn child by fraudulently representing that she was pregnant;
16 Paulus libro octavo ad edictum. cum non praegnas esset vel ex alio concepisset:
16 Paulus, On the Edict, Book VIII. Whether she was not actually pregnant, or whether she had conceived by another.
17 Ulpianus libro octavo ad edictum. debuit enim coerceri quae praetorem decepit. sed ea notatur, quae cum suae potestatis esset hoc facit.
17 Ulpianus, On the Edict, Book VIII. She also ought to be punished who deceives the Prætor, but a woman only is branded with infamy who does this while she is her own mistress.
18 Gaius libro tertio ad edictum provinciale. Ea, quae falsa existimatione decepta est, non potest videri per calumniam in possessione fuisse.
18 Gaius, On the Provincial Edict, Book III. A woman who is herself deceived by a false impression, cannot be held to have been fraudulently placed in possession.
19 Ulpianus libro octavo ad edictum. Non alia autem notatur quam ea, de qua pronuntiatum est calumniae causa eam fuisse in possessionem missam. idque et in patre erit servandum, qui calumniae causa passus est filiam, quam in potestate habebat, in possessionem ventris nomine mitti.
19 Ulpianus, On the Edict, Book VIII. No woman becomes infamous except one who has been judicially decided “to have been placed in possession of the property through fraud”. This rule also applies to a father who permitted his daughter, while under his control, to fraudulently be placed in possession in behalf of her unborn child.
20 Papinianus libro primo responsorum. Ob haec verba sententiae praesidis provinciae ‘callido commento videris accusationis instigator fuisse’ pudor potius oneratur, quam ignominia videtur irrogari: non enim qui exhortatur mandatoris opera fungitur.
20 Papinianus, Opinions, Book I. A party to whom the following words of a sentence of the Governor of a province were addressed, namely: “You seem to have been the instigator of an accusation by means of a crafty device”; is held to rather cover him with shame than to brand him with ignominy, for he who urges anyone does not perform the functions of a mandator.
21 Paulus libro secundo responsorum. Lucius Titius crimen intendit Gaio Seio quasi iniuriam passus atque in eam rem testationem apud praefectum praetorio recitavit: praefectus fide non habita testationis nullam iniuriam Lucium Titium passum esse a Gaio Seio pronuntiavit. quaero, an testes, quorum testimonium reprobatum est, quasi ex falso testimonio inter infames habentur. Paulus respondit nihil proponi, cur hi, de quibus quaeritur, infamium loco haberi debeant, cum non oportet ex sententia sive iusta sive iniusta pro alio habita alium praegravari.
21 Paulus, Opinions, Book II. Lucius Titius brought a charge against Gaius Seius, stating that he had suffered injury from him, and read written evidence to that effect in the presence of the prætorian prefect. The prefect, without paying attention to the testimony, ruled: “That Lucius Titius had not suffered any injury at the hands of Gaius Seius”. I ask whether the witnesses whose evidence was rejected are to be considered infamous from having given false testimony? Paulus answered that nothing was shown which would justify that the parties concerning whom the inquiry is made should be considered infamous, since it is not proper where a judgment, either just or unjust, is given in favor of one party for another to be prejudiced by it.
22 Marcellus libro secundo publicorum. Ictus fustium infamiam non importat, sed causa, propter quam id pati meruit, si ea fuit, quae infamiam damnato irrogat. in ceteris quoque generibus poenarum eadem forma statuta est.
22 Marcellus, Public Affairs, Book II. Blows with rods do not of themselves cause infamy, but the reason for which the person deserved to suffer the punishment does, if it was of such a nature as to render him who was convicted infamous. The same rule also applies to other kinds of punishment.
23 Ulpianus libro octavo ad edictum. Parentes et liberi utriusque sexus nec non et ceteri adgnati vel cognati secundum pietatis rationem et animi sui patientiam, prout quisque voluerit, lugendi sunt: qui autem eos non eluxit, non notatur infamia.
23 Ulpianus, On the Edict, Book VIII. Mourning should take place for parents and children of both sexes, as well as for other agnates and cognates, in accordance with the dictates of affection and the mental suffering to the extent that a person may desire; but anyone who does not mourn for them is not branded with infamy.
24 Idem libro sexto ad edictum. Imperator Severus rescripsit non offuisse mulieris famae quaestum eius in servitute factum.
24 The Same, On the Edict, Book VI. The Emperor Severus stated in a Rescript that a woman was not branded with infamy, who had been compelled to prostitute herself for money while in slavery.
25 Papinianus libro secundo quaestionum. Exheredatum quoque filium luctum habere patris memoriae placuit, idemque et in matre iuris est, cuius hereditas ad filium non pertinet. 1Si quis in bello ceciderit, etsi corpus eius non conpareat, lugebitur.
25 Papinianus, Questions, Book II. It has been settled that a son, although disinherited, should mourn for the memory of his father; and the same rule applies to a mother whose estate does not pass to her son. 1Where anyone is killed in battle he must be mourned for, even though his body may not be found.