THE SHUDRAS : THE BRAHMANIC .... STATUS OF THE SHUDRAS 61
conviction for offence varied according to the gravity of the offence. [1 ] If the offence was serious the diminution of his existimatio was called infamia . If the offence was less grave it was called turpitudo. Infamia resulted in the extinguishment of existimatio. Under the Roman Law a defendant, in addition to ordinary damages, was subjected to infamia . Condemnation for theft, robbery, injuria or fraud, entailed infamy. So a partner, a mandatarius, a depositarins, tutor, a mortgagee (in contractus fiducioe ) if condemned for wilful breach of duty, was held to be infamous.
The consequence of infamia was exclusion from political rights, [2] not merely from office (honours), but even from the right to vote in elections ( suffragium ).
From this brief survey of the basis of rights and disabilities in Roman Law, it will be clear that the basis was the same for all. They did not differ from community to community. Rights and disabilities according to Roman Law were regulated by general considerations, such as caput and existimatio . Whoever had caput and existimatio had rights. Whoever lost his caput and his existimatio suffered disabilities. What is the position under the Brahmanic Law? There again, it is quite clear that rights and disabilities were not based on general uniform considerations. They were based on communal considerations. All rights for the first three Varnas and all disabilities for the Shudras was the principle on which the Brahmanic Law was based.
The protagonists of Brahmanic Laws may urge that this comparison is too favourable to Roman Law and that the statement that Roman Law did not distribute rights and liabilities on communal basis is not true. This may be conceded. For so far as the relation between the Patricians and Plebians was concerned the distribution of rights and liabilities was communal. But in this connection the following facts must be noted.
Such as robbery, theft, perjury, fraud, appearing on the public stage as an actor or gladiator, ignominious expulsion from the army, gaining a living by aiding in prostitution and other disreputable occupations and other variety of acts involving gross moral turpitude.
There were other consequences of infamia such as exclusion from the office of attorney, disability to act on behalf of another in a law suit or giving evidence. Infamia was inflicted in two ways, either by the censors or by the judgement of a Court of Law. It was in the power of the censors, in superintending public morality, to deprive senators of their dignity, to remove knights from the equestrian order and even to strip a citizen of all his political rights by classing him among the aerarii . The censors also put a nota censoria opposite to a man’s name in the roll of citizens; and this might be done upon their own responsibility; without special inquiry, though they generally acted in accordance with public opinion. The nota censoria produced no effect except during the magistracy of the censor who imposed it. In this respect it differed essentially from infamy, which was perpetual, unless the stigma was removed by the prerogative of the people or the Emperor.