Ulpianus, On the Edict, Book VI. The Prætor has proposed this Title for the purpose of preserving order, and maintaining his dignity; and to prevent applications from being made to him casually and indiscriminately. 1With this end in view, he established three classes of persons, namely: those whom he forbade to apply to him and all others whom he permitted only to apply in their own behalf; and still others, whom he permitted to apply both for certain persons and for themselves. 2To apply to the court is to state one’s own wish, or that of one’s friend before a magistrate who has jurisdiction, or to oppose the wish of another. 3The Prætor begins with those who are absolutely forbidden to make an application to him, and in this portion of the Edict he has reference to those whom he excused by reason of youth, or on account of some accident. He forbids the party to apply to him on the ground of youth, when he is under seventeen years of age, for the reason that he considered this age to be too young to appear in public; although it is stated that Nerva, the son, gave opinions publicly on questions of law at that age, or a little later. The Prætor forbids a party to appear before him on account of accident, for instance where he is deaf and cannot hear at all; for no one ought to be allowed to make an application to court who is unable to hear the decree of the Prætor, as this would be a source of danger to him, since if he did not hear the decree, he could be punished, as being contumacious, if he did not obey. 4The Prætor states: “If the parties have no advocate I will give them one”. Not only is the Prætor accustomed to show this favor to such persons, but also he will do so where anyone is not able to obtain an advocate for certain reasons; as for instance, because of the intrigues of his adversaries, or through fear. 5Under the second section of the Edict those are referred to who cannot appear for others, and in this portion of it the Prætor includes such as are incapacitated by their sex, or by an accident, and he also mentions persons who are branded with infamy. On the ground of sex, he forbids women to appear for others, and the reason for this prohibition is to prevent them from interfering in the cases of others, contrary to what is becoming the modesty of their sex, and in order that women may not perform duties which belong to men. The origin of this restriction was derived from the case of a certain Carfania, an extremely shameless woman, whose effrontery and annoyance of the magistrate gave rise to this Edict. On account of accident, where a Prætor rejects the application of a man who is entirely blind, because he cannot see the insignia of the magistracy and pay them proper respect. Labeo says that Publius, a blind man, the father of Asprenas Nonius, had his chair turned around, and was denied a hearing by Brutus, when he wished to make a statement before him. But although a blind man cannot appear in court for another, he can still retain his Senatorial dignity, and perform the duties of a judge. Can he then, also hold the office of a magistrate? We will consider this matter. There is an example of one who did hold such an office, for Appius Claudius, a blind man, was present at public councils, and gave a very severe opinion in the Senate with reference to prisoners taken from Pyrrhus. The better opinion is for us to say that he can hold the office of magistrate which he has already obtained, but should be forbidden to aspire to a new one; and this rule has been established by many examples. 6He also forbids a party to appear before him in behalf of others, who has suffered his body to be used like that of a woman. If, however, he has been violated by robbers or by enemies, he should not be branded with infamy, as Pomponius says. A party who has been convicted of a capital crime cannot appear in behalf of another. It is also forbidden, by a decree of the Senate, that a person who has been convicted in court of false accusation, shall appear before a judge of inferior jurisdiction. Moreover, a man who has hired himself to fight with wild beasts is forbidden to appear. We should understand the term “wild beasts” to rather apply to their fierceness, than to the kind of animals; but what if the animal should be a lion, but a tame one, or some other animal which was tame but still provided with teeth? For this reason a man who has hired himself to fight, is branded with infamy by that very fact, whether he fight or not; because if he should fight, when he did not hire himself to do so, he would not be liable but only one who has hired himself for that purpose. Therefore, the ancient authorities hold that those are not liable who, for the sake of showing their courage, do this without compensation; unless they suffer themselves to be honored in the arena; for I think that, in this instance, they cannot avoid being branded with infamy. Where, however, anyone hires himself to hunt wild beasts, or to fight with one that is committing damage in the neighborhood, outside the arena, he is not to be branded with infamy; hence the Prætor permits persons to appear in court before him in their own behalf, who have not fought with wild beasts in order to show their courage, but forbids them to do so for others. Nevertheless, it is perfectly proper to permit such persons, where they are exercising the office of guardian, or any other of the game kind, to appear in behalf of those whose affairs they are transacting. Where anyone violates this provision of the Edict, he is not permitted to appear for others, but may also be punished by a pecuniary fine, whose amount is to be arbitrarily fixed by the judge. 7As we stated in the beginning of this Title, the Prætor divides parties who cannot appear into three classes, and the third of these is one by which he does not refuse them altogether the right of appearing, but says that they must not appear for everybody, and they are, so to speak, less guilty than those mentioned under former heads. 8The Prætor says: “Those who are forbidden to appear by law, plebiscite, a decree of the Senate, an edict, or an Imperial Ordinance, unless in behalf of certain persons, cannot appear before me in court for anyone else than persons authorized by law”. All others who are branded with infamy by the Edict of the Prætor are included in this Edict, and cannot appear except in their own behalf, and in that of certain specified persons. 9The Prætor then adds: “Where any one of those who are mentioned above has not been restored to his original condition”. One who is included in “those mentioned above”, is understood to mean one of those who come under the third clause of the Edict, who are forbidden to appear in behalf of certain persons; for if they were included under the other clauses, complete restitution would be obtained with difficulty. 10Pomponius asks what restitution the Prætor has reference to, whether it is that granted by the Emperor, or that granted by the Senate? And he is of the opinion that either is referred to; but the inquiry arises as to whether the Prætor can grant restitution, and it seems to me that such decrees of the Prætor should not be observed unless they form part of the duties of his jurisdiction; as in the case of youth, where anyone has been deceived, and in the other instances which We snail examine under the Title, “Concerning Complete Restitution”. The proof of this opinion is that where anyone is convicted of an offence involving infamy, and the sentence is annulled by complete restitution, Pomponius thinks that he is freed from the infamy. 11The Prætor also says: “They cannot appear for anyone except a parent, their patron, their patroness, their children, or the parents of their patron or patroness”; with reference to which persons we have spoken more fully under the Title: “Concerning Summons”. He also adds “Or in behalf of their children, their brother, sister, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepson, stepdaughter, male or female ward, or a person of either sex who is insane”.

Ulpianus, On the Edict, Book VI. “Where guardianship, or curatorship, has been given over any such persons by a parent, or by a majority of the guardians, or by a magistrate who had jurisdiction in the matter.” 1When affinity is mentioned, we must not understand that which formerly existed, but that which exists at the present time. 2Pomponius says that the words, daughter-in-law, son-in-law, father-in-law, and mother-in-law are intended to include degrees which are more remote than those which the preposition pro generally designates. 3And that, with reference to curators, he ought to have added persons who are dumb, and others for whom it is customary to appoint curators, that is to say, persons who are deaf, spendthrifts, and minors.

The Same, On the Edict, Book VI. I am of the opinion that those can appear in court without violation of the Edict, who, not voluntarily but through necessity, are discharging the duties of an office, even if they are such as cannot appear in their own behalf. 1Where anyone is forbidden to act as an advocate, if this has reference to the time during which the magistrate exercises jurisdiction, I think that he can afterwards appear before his successor.

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.

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.”

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.

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.

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. 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.

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.

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.

The Same, On the Edict, Book VI. A blind man can perform the duties of a judge.

Ulpianus, On the Edict, Book VI. It makes little difference, in the contracting of betrothals, whether this is done by the parties in the presence of one another, or by means of an intermediary, or in writing, or in some other way; and very frequently the conditions of marriages are settled by the agency of others than those chiefly interested.

Ulpianus, On the Edict, Book VI. The magistrate having jurisdiction of a suit does not always observe the time prescribed by law, for sometimes he shortens, and sometimes he extends it, dependent upon the nature of the case, the amount of property in dispute, or the obedience or obstinacy of the parties; but rarely is the judgment executed within the time fixed by law, as, for example, where the question of support is to be determined, or relief is to be granted to a minor of twenty-five years of age.

Ulpianus, On the Edict of the Prætor, Book VI. A prevaricator is a person who takes both sides, and assists the adverse party by the betrayal of his own case. This term, Labeo says, is derived from a varying contest, for he acts in this manner who, apparently being on one side, actually favors the other. 1A prevaricator, properly so called, is one who appears as accuser in a criminal prosecution. An advocate, however, is not correctly said to be a prevaricator. What then should be done with him if he should be guilty of this offence, in either a private or a public proceeding, that is to say, if he has betrayed his own side? It is usual for him to be punished arbitrarily.

Ulpianus, On the Edict, Book VI. If a Governor or a judge should make the statement: “You have committed violence,” in proceedings under an interdict, the defendant shall not be branded with infamy, nor shall the penalty of the Julian Law be inflicted. When, however, this is done during the prosecution of a crime, it is another thing. What would be the rule if the Governor should not make a distinction in the application of the Julian Law relating to Public Offences, and that relating to private ones? It must then be held that proceedings have been instituted for the punishment of a crime. But, if the defendant is accused of offences under both laws, the one which is less severe, that is to say, the one relating to private violence should be followed.

Ulpianus, On the Edict, Book VI. In cases in which the Treasury is interested, those who make agreements with the informers are considered as having confessed, provided they have given them any money, no matter how small an amount.

Ulpianus, On the Edict, Book VI. A soldier who is on furlough is not considered to be absent on business for the State.

The Same, On the Edict, Book VI. It is established that creditors should be understood to be those to whom something is due and collectible by any action or prosecution, or under the Civil Law, without the power of preventing its recovery either by pleading a perpetual exception, or by taking advantage of Prætorian Law, or of any extraordinary proceeding; whether the indebtedness is absolute, or is to be discharged within a certain time, or under some condition. When the debt is due under natural law, they do not, properly speaking, occupy the place of creditors. If, however, the claim should not be based upon money lent, but upon a contract, they are still understood to be creditors.

Ulpianus, On the Edict, Book VI. For instance, where anything is due to a person on account of a purchase, a lease, or any other transaction, or even because of a crime, it seems to me that he can be held to be a creditor. When, however, the indebtedness arises from some public proceeding, he cannot be said to occupy the place of a creditor before issue has been joined, but he can afterwards. 1He who is in default pays less than he owes, for less is paid when the time of settlement is deferred.