THE VOCABULARY OF PRIVILEGE

The jurists of the classical period of Roman law presented Imperial society as divided into two main groups, of higher and lower status.¹.

This particular formula is in fact only one of several that occur in the sources. It is by far the most popular one in Paul’s Sen­tences, but that is a late third-century work? In texts from the Severan period or before there is no single occurrence of the terms honestiores and humiliores in combination.³ Papinian, reporting a rescript of Pius, used honestior and humilioris loci, a close approxi­mation.⁴ Again, Marcianus, writing of the Cornelian law de sicariis et veneficiis, contrasted the penalty for honestiore loco positi or altiores with that for humiliores.³ It is normal for honestiores or humiliores to be balanced by another phrase altogether; or a cognate adjective is found qualifying a noun,⁶ sometimes in a participial construction,⁷ sometimes in a full clause.⁸

When lawyers dealt in general terms with the subject of legal discrimination, they preferred to say that consideration was given, or should be given, to the persona—in particular to the persona of

¹               Other divisions are also given recognition, e.g. the division between free men and slaves. See pp. 260-1.

²               Refs, in Cardascia, art. cit.

³ Cardascia, art. cit. 324, thinks of Paul's Sentences as Severan in date.

⁴               Dig. 48. 5. 39. 8. Note the singular honestior (cf. 47. 18. 1. 2), and the use of a noun with humilis (cf. Gai. Inst. 3. 225; Dig. 48. 19. 28. 11). See also Dig.

47.    9. 12 and 47. 12. 11 = PS 5. 19A (both humilior); 2. 15. 8. 23; 48. 8. 3. 5;

48.    13. 7 (all honestior). For the superlative, again with a noun, Coll. 12. 5. 1 (humillimus). For humilis standing alone see Dig. 4. 3. 11. 1.

³ Dig. 48. 8. 3. 5.                                                               ⁶ See n. 4 above.

⁷ Dig. 48. 8. 1. 5 (humiliore loco positum); Pliny, Ep. 8. 6.16 (honesto loco nati).

* Dig. 47. 14. 1. 3 = Coll. 11. 8. 3 (qui honestiore loco nati sunt); cf. Dig. 48. 13. 7 (si h. I. natus sit).

the accused. Penalties for crimes, for example, were awarded in part pro persona.¹ Sometimes the word persona is understood:^{[192] [193]} pro dignitate is shorthand for pro dignitate personae, pro condicione for pro condicione personae, and so on. In the same way, personae should be supplied with honestiores and humiliores. The notion of persona, then, is primary.

'Humiliores' and synonyms.

What is zplebeiusl Gaius’ definition oiplebs is broad: the rest of the citizenry^ excluding senators (ceteri cives sine senatoribus).¹ If this statement were given a provincial or municipal setting, ‘plebeians’ would turn out to be the bulk of the citizen population, excluding the decurions.^[199] There is a clear contrast in legal texts between penalties for decurions and those for plebeians.^[200] Indeed, a whole group of penalties is labelled plebeiorum poenae.^{[201] [202] [203]} These are the sorts of penalties which might be applied to slaves.’¹ In addition, plebeius is found opposite consularis receptae auctoritatis,³³ honestior,^[204] and (in company with humiliore loco natus) a long list of officials.^[205]

Tenuiores^{New Roman",serif;color:black;font-weight:bold'>[206]} is rare in the classical period but common in later texts, where it stands for free men of low status, habitually subject to oppression by potentiores. Such oppression was not, however, a peculiar feature of the late Empire.¹ The references of potentio- res and honestiores are not identical.²

‘Honestiores'.³ Honestiores is connected with honor or honos. The noun itself appears occasionally in phrases that describe the privileged groups, such as in honore aliquo positi.⁴ Here the word honor seems to refer quite closely to an official position or office.⁵ Again, propter honorem, high-status defendants are granted a freer kind of custodia.⁶ The reference is apparently to the ‘honour’ or esteem which attaches to a member of the higher orders, whether for offices held or for high social standing.

veteranis et liberis veteranorum idem honor habetur, qui et de­curionibus.⁷

Political and social predominance are closely linked with moral ascendancy.⁸ Honestus and honestior have a definite moral flavour. In Cicero’s description of an honestus in the Brutus, moral superiority is nicely combined with success in politics:

cum honos sit praemium virtutis iudicio studioque civium delatum ad aliquem, qui eum sententiis, qui suffragiis adeptus est, is mihi et honestus et honoratus videtur.’

The addition of et honoratus underlines the respect which is due to the man of the type described.

¹               Dig. i. 18. 6. 2; 5; 47. 22. 1 praef.; ibid. 3. 2 (collegia tenuiorum)·, 48. 19. 28. 7.

²               On potentiores see Cardascia, art. cit. 308-9; J. Gagi, Les Classes sociales dans I’Empire romain (1964), 417-24; J. Gaudemet, The Irish Jurist i, N.s. 1 (1966), 128.

³               The earliest uses of honestiores in a social sense are to be found in Seneca (Ep. 47. 15) and Petronius (Sat. 34. 7). Among rare synonyms are altiores (Dig. 48. 8. 3. 5); splendidiores personae (Dig. 47. 21. 2); from the fourth century, maiores personae (Coll. 15. 3. 7); honorati (ibid.); cf.

⁴               Dig. 48. 8. 16; cf. CTh 9. 16. 6 = CJ 9.18. 7 (a.D. 358) (honoribus praediti). ^s Dig. 50. 4. 14 praef. (honor municipalis)·, 50. 2. 2. 2 (honor decurionis); cf.

50. 5· 5 (^a decurionatu, quamvis hic quoque honor est).

⁶               Dig. 48. 3. 1.

^{7face="Times New Roman">} Dig. 49. 18. 3; cf. 48. 19. 28. 5 (honoris reverentiam). · See below.

• Cic. Brutus 281: ‘Since honour is the prize given for virtue by the citizenry out of esteem and affection, he who has won it by their judgement and approba­tion is in my eyes both honourable and honoured.’

‘Dignitas'. Cicero provides a definition:

dignitas est alicuius honesta et cultu et honore et verecundia digna auctoritas.¹

In this heavily loaded sentence, the emphasis is placed on moral qualities, manner of life, and the esteem which these evoke— or rather command, for auctoritas is a full-blooded word, meaning influence or power, the authority which in the Roman context is derived from political leadership.² The word dignitas may stand for a particular office, and in this sense it is found in both the singular and the plural.³ Valerian and Gallienus dealt with a case of injury to a priest who was actually wearing the dignitatis habitum et ornamenta at the time.⁴ Position or office is perhaps central in in aliqua dignitate positus, which is contrasted with humiliore loco positus,³ or humiliores* But it is often impossible to separate the various shades of meaning possessed by the word: the office itself, the prestige that is acquired through office, the rank in society that an office holder attains to, the quality of his life.

The word was sometimes used with reference to decurions.’ Paulus, reporting Pius’ ruling that an ex-decurion should not be tortured, commented that the concession was given in memoriam prioris dignitatis* It would be idle to try to decide which sense of the word is the dominant one here.

1       Cic. de inv. 2. 166: ‘Dignity is honourable prestige. It merits respect, honour, and reverence/ Of words of similar meaning, such as uuctorites, amplitude), males tas, only the first features in the legal texts.

2 See p. 227.                                                                                     _t

3       See Dig. so. 2. 12. The plural does not always mean ‘offices’. See Dig. a decurion served for life, and, by the Severan epoch, was normally succeeded by his son.¹

Another fringe case where an attempt to categorize achieves little is the employment of hi qui altioris dignitatis sunt (opposed to inferioris dignitatis homines) and hi qui inferioris dignitatis sunt (opposed to antecedentis gradus homines).³· And is the normal sense of dignitas rather than the social sense paramount in the passages which describe the virtues of reliable witnesses: dignitas, fides, mores, gravitas!³ A text concerning the actio de dolo shows how closely the three senses of dignitas are connected:

size=2 color=black face="Times New Roman">sed nec humili adversus eum qui dignitate excellet debet dari (sc. actio): puta plebeio adversus consularem receptae auctoritatis, vel luxurioso atque prodigo aut alias vili adversus hominem vitae emendatioris.⁴

Consular office and rank, the influence in the community which this brings, and the virtuous life all indicate dignitas.

‘Condicio¹. Condicio appears in many contexts;⁵ in some it stands for social rank. For example, some are debarred from accusing propter condicionem suam (ut libertini contra patronos)? in crimes relating to the pilfering of shipwrecks, as in other cases, the penalty is to be decided ex personarum condicione (et rerum qualitate).³ Torture is permissible as a last resort, si personarum condicio pateretur? Those who tamper with the levee-banks of the Nile are punished pro condicione sua (et pro admissi mensura).⁹

¹               See pp. 243 ff., on the social status of decurions.

*       Dig. 23. 2. 49 (Marcellus). Other occurrences of the word in the Dig. in a similar sense include: Dig. 1.5. 20; 1. 9. 1 praef.; 23. 2.66 praef.; 25. 4. r. 13; 35· 3· 3· 5! 47· «· 10; 48. 13. 8. 1; 48. 19. 28. 9; 30. 13. 5. 2.

³               Dig. 22. 5. 2; ibid. 3. 1; 3. 2; PS 5. 15. 1. See J. Ph. Ldvy, op. cit. (p. 212 n. 3), ii. 29 ff.

⁴               Dig. 4. 3. 11. i (Ulp.): ‘Nor should the action be granted to a man of low rank against one of conspicuous dignity, to a commoner, for example, against a consular of acknowledged prestige, or to a man whose life is wanton and wasteful, or in some other way worthless, against one of exemplary life.’

³ Quint. Inst. 5. 10. 26: ‘condicionis etiam distantia est: nam clarus an obscurus, magistratus an privatus, pater an filius, civis an peregrinus, liber an servus, maritus an caelebs, parens liberorum an orbus sit, plurimum distat.’

⁶ ^i?· 48. 2. 8; cf. Cjf 9. 21. 1 praef. (libertina condicio).

¹ Dig. 47. 9. 4. 1.

•       Cf 9. 41. 8. 2 (DiocL and Max.).

⁹               Dig. 47. 11. 10.

An attempt has been made by Cardascia to show that condicio was not used in any phrase that is relevant to the honestiores! humiliores distinction.¹ When pro condicione personae appears, the argument runs, it is the dichotomy of free men and slaves, or a trichotomy of honestiores, humiliores, and slaves, which is in question. Yet in Dig. 47. 11. 10 pro condicione sua is echoed by secundum suam dignitatem. The latter formula, and therefore the former, is one of the many that point to the honestioreslhumiliores distinction. Moreover, there is no reference here to slaves and to free men. The trichotomy referred to above occurs in Dig. 47. 9. 4.1, where Paulus quotes a rescript of Pius (the interpretation of which is disputed).² Again, the comment that follows the quotation has a wider application than the one case to which the Emperor ad­dressed himself. The words are:

face="Times New Roman">et omnino ut in ceteris, ita huiusmodi causis ex personarum con­dicione et rerum qualitate diligenter sunt aestimandae.³

Two possible exceptions are dismissed by Cardascia on inadequate grounds. In PS. 5. 25. 10 there is no hint of a distinction between slaves and free. The second text, Dig. 22. 5. 3 praef., runs:

exploranda ... condicio cuiusque, utrum quis decurio an plebeius sit.⁴

This is considered irrelevant because the opposition here is al­legedly between ‘orders’ rather than ‘classes’. At this point Cardascia’s discussion is coloured by his theory about the nature of the categories of honestiores and humiliores. He claims that the terms represent ‘classes’ rather than ‘estates’: condicio is held to be the technical term for ‘estates’. At this juncture, it is only necessary to say that Cardascia’s theory gains no support from the use of the word condicio in the legal texts.⁵

¹ Cardascia, art. cit. 336, and n. 1.                                   ² See pp. 163-4.

³               ‘In general, in cases of this kind, as in the other cases, a careful assessment should be made on the basis of the status of the person and the nature of the goods.* One of the ceterae causae is provided by Modestinus. In Dig. 47. 21.1 he states that there is no longer a fine for moving boundary-stones, ‘sed pro condicione admittentium coercitione transigendum*.

⁴               ‘The status of each man... should be investigated, to ascertain whether he is a decurion or a commoner.’ See also Cjf12.1.1 (privata condicio... clarissima).

^s Cardascia, art. cit. 332 ff.; see p. 234 n. 1 for criticisms of his theory of the nature of the categories.

Brasiello gave Cardasela a starting-point for his argument, by distinguishing between condicio and status on the one hand, and dignitas on the other. The former, it is argued, stands for personal condicio or ‘capacità’, the latter for social condicio or ‘stimà’.¹ The above discussion has given grounds for thinking that the distinction was not all-pervasive. Condicio and dignitas are virtual synonyms in passages that describe preferential treatment, or a difference of penalty.²

'gravitas', 'fides'. Auctoritas, as has been noted, is as­sociated with dignitas and is closely connected with office hold­ing.³ Injury is atrox when the injured man is a senator, a knight, a decurion, or a man ‘signally prestigious in some other way’ (vel alias spectatae auctoritatis viro).⁴ The last phrase covers such offi­cials as magistrates, aediles, and judges. Again, an action for fraud was not given to a plebeian against a consular ‘of acknowledged prestige’ (receptae auctoritatis).* Auctoritas is a quality in a witness which recommends itself to judges.⁶ Another is gravitas which denotes constancy, stability, trustworthiness, or fides.¹

'Existimatio'.* It is another characteristic of a good witness that he should possess existimatio, reputation or good name; it also

^x U. Brasiello, op. cit. 552 ff. ; IJ 1. 16. 5 shows that status and dignitas are not synonymous—perhaps Dig. 1. 5. 20 does too—but not that there is ‘opposi­tion’ between the two (just as in the latter text magistratus and potestas are not opposed). Status is commonly used when the condition of a slave is contrasted with that of a free man. e.g. CJ 9. 21. 1 praef. ; Dig. 1. 5 pass. This applies equally to Dig. 40. 15. 3: ‘ante quinquennium defuncto status honestior, quam mortis tempore fuisse existimatur, vindicari non prohibetur, idcirco et si quis in servitute moriatur, post quinquennium liber decessisse probari potest.* Despite Cardasela (art. cit. 336 n. 1, incorrect reference), the status of a liber is loftier (honestior) than that of a servus in the same sense that a decurion *s surpasses a plebeian’s.

²CJ 9. 41. 8. 2 with PS 5. 29. 2; Dig. 48. 8. 1. 2 with 49. 16. 6. 1.

³               See above, p. 224; cf. Lévy, op. cit. 63 ff.; F. Schulz, Principles of Roman Law (1936), 164 ff., with bibl.

⁴ PS 5. 4. 10.

⁵ Dig. 4. 3. 11. i (Ulpian/Labeo).

⁶ Dig. 22. 5. 3. 2; 4.

⁷               Ibid. 2. See Lévy, op. cit. 48 ff. Gravitas and fides are moral qualities; ibid. 92: ‘Gravitas n’a aucune signification juridique.’

⁸ Dig. 22. 5. 3. 1; cf. 48. 18. 10. 5. See Brasiello, op. cit. 546. Other words of similar meaning occur primarily in non-legal sources : fama, laus, decus, nomen, gloria, etc.

connotes status, which stands or falls with dignitas. Callistratus writes:

existimatio est dignitatis inlaesae status, legibus ac moribus com­probatus, qui ex delicto nostro auctoritate legum aut minuitur aut consumitur.¹

Callistratus claims for existimatio the approbation of law and cus­tom. He does not say that it rests on them, or derives from them.

'Qualitas'. Qualitas acts as a variant for dignitas or condicio, in pro- qualitate personae,¹ and similar phrases.³

'Gradus'. This is another term for social rank. Humiliore loco is found opposed to in aliquo gradu,⁴ and in honore aliquo positi opposed to secundo gradu.¹

'Locus', 'ordo'. These are also status terms. Marcus and Com- modus found one Aelius Priscus

tali .. loco atque ordine esse, ut a suis vel etiam in propria villa custodiatur.

He was thus saved from a sojourn in prison in chains.⁶ Phrases such as honestiore loco natus are common.⁷

'Fortuna.'. In the legal sources there is one relevant passage: humilioris quidem fortunae summo supplicio adficiuntur, honestiores in insulam deportantur.⁸

Loci might have been written for fortunae.⁹

¹               lang=EN-US style='font-style:italic'>Dig. 50. 13. 5. 1: ‘Good name is a condition of unimpaired dignity. It is upheld by law and custom, but again, by the authority of the laws, is diminished or destroyed through our offences.’

²    Dig. 48. 13. 7; cf. PS 1. 21. 12; CJ 9. 39. 1 (a.d. 374).

³               PS 1. 21. 5 (pro personarum qualitate); Coll. 11. 3. 1; PS 5. 18. 1 (pro qualitate eius)\ PS 5. 22. 1 = Dig. 48. 19. 38. 2 (pro qualitate dignitatis).

⁴    Dig. 47. 9. 12; cf. Coll. 12. 5. 1 (humillimo loco/in aliquo gradu).

⁵ Dig. 48. 8. 16; cf. 23. 2. 49, and see Cardascia, art. cit. 326 n. 8.

⁶               Dig. 1. 18. 14: ‘is of sufficient status and rank to be guarded by his own family and in his own house.’ For ordo see also CJ 5. 4. 10 (Diocl.): claritas] secundi ordinis virum. Cardascia (art. cit. 336) found the term ordo irrelevant to the honestiores]humiliores distinction (cf. condicio and status).

⁷               Dig. 47. 9. 12. 1; 47. 14. 1. 3 = Coll. 11. 8. 3; 48. 8. 3. 5; 48. 13. 7; Coll. 12. 5· 1; cf. Dig. 47. 10. 45 and 48. 5. 39. 8.

⁸               PS 5. 19A = Dig. 47. 12. 11: ‘Those defendants who are of humble circum­stances are given the ultimate penalty, while men of rank are deported to an island.’ Cf. Tac. Ann. 2. 72 (Germanicus).

⁹ For the broad application of the word fortuna see Cic. de inv. 1. 24. 34-5;

'Genus*, ‘mores*, 'facultates*

For the rhetoricians birth, moral qualities, and wealth were three of the more important aspects of a person from which arguments in law courts could be drawn.¹ The legal documents reflect this. 'Genus*. In the Acta Hermaisci, the Emperor Trajan is represented as provoked by the insults of a defendant, the Alexandrian gym- nasiarch Hermaiscus, into crying out: ‘You answer me wilfully, trusting in your birth (sc. to protect you)’ (auflaS^j dnoKpivr) 7re7roifld)s to) ceavrov yevet). This was Trajan’s second warning. It is uncertain whether Hermaiscus thought his lineage would influence Trajan in his favour. The Emperor at least was aware of it.²

In the Digest, high birth is mentioned among qualifications for privilege, in formulae such as qui honestiore loco nati sunt.³ In addition, there are a number of texts in which sons of decurions, veterans, and others are specifically protected from ‘plebeian’ penalties.⁴ The implication may be that the principle that privi­lege was inheritable was not universally accepted; but it does seem to presuppose the existence of the principle.

¹               Genus: Quint. Inst. Or. 5. 10. 24 ff.; Cic. de inv. 2. 35. 107; 1. 24. 34-5; Auct. ad Herenn. 3. 6. 10; 13. Mores: Quint. Inst. Or. 5. 10. 24ff.; 7. 2. 33. Facultates: ibid. 5. 10. 26; Cic. de inv. 1. 24. 34; Auct. ad Herenn. 3. 6. 10.

²               Acta Hermaisci, P. Oxy. 1242, col. iii, 1. 44, in H. A. Musurillo, Acts of the Pagan Martyrs (1954), viii. 45 (text) and 177 (comm.); cf. Acta Athenodori, P. Oxy. 2177, fr. 2, col. ii, 1. 55, in Acts x. 61; and Acta Appiani, P. Oxy. 33, col. iv-v, 11. 15 ff., in Acts, xi. 67.

³               Similarly, low birth was a disqualification: Dig. 47. 14. 1.3 = Coll. 11. 8. 3; 48. 13. 7 fin.; CJg. 41. 9 (a.d. 290): *ne alieni forte sordidae stirpis splendidis et ingenuis natalibus audeant subrogari.’ aycvjfc/dycyjfc: CJ 2. 11. 16 (a.d. 240); cf. Acta Athenodori and Acta Appiani (last note). Genus: CTh 9. 35. 1 = CJ 9. 8. 4 (a.d. 369).

⁴               Decurions: Dig. 50. 2. 2. 2; Q7 9. 41. 11. 1; 9. 47. 9(daughter). Veterans: Dig. 49. 18. 3; Q7 9. 41. 8; 9. 47. 5.

Eminentissimi viri_t perfectissimi viri: CJg. 41. 11 praef. (sons, grandsons, and great-grandsons).

‘Mores'. According to Quintilian, there is sometimes a causal con­nection between birth and manner of life:

genus, nam similes parentibus et' maioribus filii plerumque credun- tur, et nonnumquam ad honeste turpiterque vivendum inde causae fluunt.¹

Ulpian underlined the word nonnumquam with an example of a base father who produced an upright son. It is significant that Ulpian considered that a son’s traditional subservience to a father before the law² could be waived if there was a dispute between them:

interdum tamen putamus... iniuriarum actionem filio dandam, ut puta si patris persona vilis abiectaque sit, filii honesta.³

That public mores exercised a regulative function in Roman society hardly needs stating. There is a recognition of this in a rescript of Caracalla, in which mores is placed beside leges and constitutiones'.

pacta, quae contra leges constitutionesque vel contra bonos mores fiunt, nullam vim habere indubitati iuris est.⁴

But mores played this role already under the Republic. It was written in the praetor’s edict that an actio iniuriarum would be given for convicium (abuse) which was judged to be adversus bonos mores.³ A ruling of Severus illustrates how mores could supplement leges. There was nothing illegal about the marriage of a freed­man with his patroness, or with the daughter, wife, grand­daughter, or great-granddaughter of his patron. But Severus considered it out of keeping with the mores of his times.⁶

¹ Quint. Inst. Or. 5. 10. 24: ‘with regard to birth, sons are commonly thought to be like their parents and ancestors, and sometimes this is the reason for the honourable or dishonourable quality of their lives.’ If possible, the defendant’s counsel should demonstrate his client’s vita integra. See Auct. ad Herenn. 2. 3. 5; cf. Quint. Inst. Or. 7. 2. 27 ff.

³ e.g. Dig. 48. 19. 16. 3; cf. IJ 4. 4. 9 (atrox iniuria); Dig. 4. 3. 11. 1 (actio doli). For the unequal relationship of libertus and patronus see Dig. 4. 3. 11. 1; IJ 4· 4. 9; Dig. 47. 10. 7. 2 and ibid. 11. 7; CJ 5. 4. 3. Cf. PS 2. 19. 9.

³               Dig. 47. 10. 17. 13: ‘We can imagine the situation arising on occasion where an action for injury should be granted to a son» as when the father’s character is base and worthless, and the son’s honourable.’

⁴               CJ 2. 3. 6 (a.d. 213): ‘It is undoubtedly part of law that settlements which are made contrary to enactments and constitutions and canons of good conduct have no force.’

⁵ Dig. 47. 10. 15. 2; 5; 6; 20; 23; 34; 39; cf. 4. 2. 3. 1.

⁶ CJ 5. 4. 3 (a.d. 196).

The mores of a potential accuser,¹ and also of a witness,* were subject to scrutiny by the judge. In the case of a witness, the judge was urged to make inquiry ‘et an honestae et inculpatae vitae, an vero notatus quis et reprehensibilis’.³ Some would-be witnesses were ruled out ‘propter notam et infamiam vitae suae’.⁴ This last statement of Callistratus follows the citation of a section of the Julian law on violence. The law contained a list of those prohibited from giving testimony. The intestabiles are mostly infames, that is, they belonged to a category of persons who lacked various legal prerogatives which citizens normally possessed. Either a criminal record or the exercise of certain sordid practices had placed them in this category.⁵ Apart from legal disqualifica­tions, harsher penalties were traditionally their lot, according to Callistratus:

maiores nostri in omni supplicio severius servos quam liberos, famosos quam integrae famae homines punierunt.⁶

The terms infames and famosi are apparently coextensive.⁷

The concept of a man honestae et inculpatae vitae as one who has not besmirched his name is somewhat negative. Other texts mention more positive attributes.⁸ More interesting for present purposes is the use with a moral sense of the adjective honestus— and also of the noun honestas, for honestas and existimatio are put forward as qualities of a trustworthy witness.’ In Ulpian’s hypo­thetical confrontation of father against son the persona vilis abiectaque of the one is pitted against the honesta {persona) of the other. Again, honestum appears as an antonym of adversus bonos mores, in a passage that recalls in subject-matter the rescripts of

¹               Dig. 48. 2. 16 (accusers); see also Gellius 14. 2. sff.; 10 ff.; 2iff. (both parties). See pp. 210-11.

³ Dig. 22. 5. 2.

³               Ibid. 3 praef.: ‘whether the man was of honourable and blameless life, or whether he had suffered disgrace and was deserving of censure*.

⁴               Ibid. 3. 5: ‘because of the shame and notoriety of their lives’.

³ Infames·, see, for a brief discussion, W. W. Buckland, Text-Book of Roman Law* (1963), 91 ff.

⁶               Dig. 48. 19. 28. 16: ‘Our ancestors, in every case of punishment, have awarded harsher penalties to slaves than to free men and to men of bad reputa­tion than to men of unblemished name.*

⁷               See, e.g., Dig. 48. 2. 13; 48. 4. 7 praef.{famosi)', cf. Coll. 4. 4 {infames).

⁸                                                                                                                                                                                                                                          Dig. 22. 5. 3 praef.        ⁹ Ibid. 21. 3.

Caracalla and Severus quoted above. Modestinus ruled out certain types of marriage partners for the daughter of a senator with the words:

semper in coniunctionibus non solum quid liceat considerandum est, sed et quid honestum sit.¹

That a word with a basically moral meaning, honestus, should have been chosen to describe men of distinguished social position, honestiores, demonstrates that, in Roman eyes, there was more than a contingent connection between social position and moral values.^{[213] [214] [215]} style='font-style:italic'>‘Facultates*. Honestus vir is synonymous with vir locuples in a passage of Ulpian:

cum Titio honesto viro pecuniam credere vellem, subiecisti mihi alium Titium egenum, quasi ille esset locuples, et nummos acceptos cum eo divisisti: furti tenearis.. ?

Idoneus is used for honestus in a parallel passage, and is perhaps the more common word in such contexts.^[216]

Amplissimae facultates might keep a man out of prison.^[217] A wealthy defendant could be entrusted to fideiussores, no doubt partly because he would be less inclined to run away and abandon his estate. Again, a rich man could expect not to be beaten.^{[218] [219]} This exemption was not granted simply because he could pay damages; it was a prerogative accorded to status.

In contrast with honestus and idoneus, locuples¹ (locupletior) and possessor¹ are relatively neutral, descriptive terms. The use of the first two for men of means illustrates the well-known truth that the possession of wealth gave access to the governing elite; the use of the last two testifies to the significance of wealth in the eyes of the law.

* Dig. 50.9.1. See p. 257.