1Julianus, 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”.

2Ulpianus, 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.

3Gaius, 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.

4Ulpianus, 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.”

5Paulus, On the Edict, Book V. This is the case because a man who compromises a crime is considered as having committed it.

6Ulpianus, 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.

7Paulus, 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.

8Ulpianus, 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.

9Paulus, On the Edict, Book V. Husbands are not compelled to mourn for their wives. 1There is no mourning for one betrothed.

10The Same, On the Edict, Book VIII. It is customary to obtain permission from the Emperor for a widow to marry within the time fixed by law. 1A woman can be betrothed during the time she is in mourning for her husband.

11Ulpianus, 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. 2Ad Dig. 3,2,11,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 22, Note 3.Pomponius 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.

12Paulus, 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.

13Ulpianus, 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.

14Paulus, 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.

15Ulpianus, 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;

16Paulus, On the Edict, Book VIII. Whether she was not actually pregnant, or whether she had conceived by another.

17Ulpianus, 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.

18Gaius, 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.

19Ulpianus, 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.

20Papinianus, 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.

21Paulus, 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.

22Marcellus, 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.

23Ulpianus, 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.

24The 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.

25Papinianus, 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.