Publisher's Synopsis
This is a thorough and scholarly treatment of a subject which owes much of its difficulty and at the same time of its interest to the fact that it lies upon the by no means scientific frontier between law and morality. The question as to the period at which informal transactions became actionable at Borne may, perhaps, always remain a debatable one, but whether we incline to an early or a relatively late date - and at the moment the current of opinion seems in favor of the latter - the subject of infamia will always be of interest in the history of Roman private law; for, as regulated by the censor, it seems to have been in many cases a substitute for and a precursor of a definite legal sanction. Its interest for the student of public law is even greater.
Mr. Greenidge devotes his first forty pages to a definition of the subject and an outline of his treatise. He justly remarks that a definition of an institution whose history extended over many centuries must be a very general one, though it is not, perhaps, as valueless as he appears to think. If it does nothing more, his definition (p. 37) illustrates the clearness and sobriety which are marked characteristics of his book. He agrees in the main with Mommsen as against Savigny that infamia during the republic was not a clearly marked juristic conception. He traces its origin to the censorian control over manners and morals, a control which, being legally irresponsible, produced, fortunately for Roman morality, no definite code of rules, though the censorian edict was in all probability, like the praetorian, largely tralatitious. He argues against the distinction which Savigny and others have supposed to exist between censoria notatio and infamia, or, substituting facts for names, between disqualifications imposed arbitrarily by the censor and a system of permanent disabilities existing independently of the discretion of the censor, although enforced through his agency. The conclusion arrived at is that in republican times condemnation neither on the ground of delict nor of fiduciary obligations produced ipso iure disqualification for office or loss of suffrage. The magistrate could treat the condemnation as a ground of exclusion, but, as is shown by the case of Antonius, the colleague of Cicero in the consulship, he could disregard it. With reference to crimes it was only gradually, by legal interpretation, that the principle was established that infamia followed conviction. In the 'Lex lulia Municipalis, ' 'a codification of the most permanent portion of the censorian infamia' touching the disqualifications for the position of senator in a municipal town, we have most valuable evidence as to the nature and limitation of the conception at the close of the republican period. After tracing in some detail the working of infamia in connexion with the senate and the equestrian order, Mr. Greenidge passes on to the praetorian infamia. He shows that the praetors in whose edicts infamia appears as a bar to indiscriminate postulation borrowed the conception from the censors: in their hands, however, it became of necessity definite and codified. In Chapter V. we see how in the empire the idea, inherent in the censorian procedure, of exclusion from public honors became again the dominant one. By the time of Constantine infamia is a definite legal conception, with fixed consequences, and is used by the emperors as a powerful means of punishing crimes and administrative abuses.
-The English Historical Review
