The Ancient Library

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rity : accordingly in one sense Nexum included Mancipium, as explained in mancipium ; in an­other sense, Mancipium and Nexum are opposed in the same way in which Sale and Mortgage or Pledge are opposed. The formal part of both transactions consisted in a transfer per aes et libram. This explanation is consistent with the definitions of the jurists, and the uses of these two words.

The person who became Nexus by the effect of a Nexum or Nexus (for this form of the word also is used) was said Nexum inire. (Liv. vii. 19.) The phrases Nexi datio, Nexi liberatio respectively express the contracting and the release from the obligation.

The Roman law as to the payment of borrowed money (pecunia certa credita; see Lex Gall. Cisalp. 21, 22) was very strict. A curious passage of Gellius (xx. 1) gives us the ancient mode of legal procedure in the case of debt, as fixed by the Twelve Tables. If the debtor admitted the debt, or had been condemned in the amount of the debt by a judex, he had thirty days allowed him for payment. At the expiration of this time, he was liable to the Manus Injectio [manus injectio], and ultimately to be assigned over to the creditor {addictus) by the sentence of the praetor. The creditor was required to keep him for sixty days in chains, during which time he publicly exposed the debtor on three nundinae, and proclaimed the amount of his debt. If no person released the prisoner by paying the debt, the creditor might sell him as a slave or put him to death. If there were several creditors, the letter of the law al­lowed them to cut the debtor in pieces, and to take their share of his body in proportion to their debt. Gellius says that there was no instance of a credi­tor ever having adopted this extreme mode of satis­fying his debt. But the creditor might treat the debtor, who was addictus, as a slave, and compel him to work out his debt ; and the treatment was often very severe.

In this passage Gellius does not speak of Nexi, but only of Addicti; which is sometimes alleged as evidence of the identity of nexus and addictus, but it proves no such identity. If a Nexus is what he is here supposed to be, the Law of the Twelve Tables could not apply ; for when a man had once become Nexus with respect to one creditor, he could not become Nexus to another ; and if he became Nexus to several at once, in this case the creditors must abide by their contract in taking a joint se­curity. This Law of the Twelve Tables only applied to the case of a debtor being assigned over by a judicial sentence to several debtors, and it provided for the settlement of their conflicting claims. The distinction between a nexum and a res judicata is obvious enough, though some writers have missed it.

The precise condition of a Nexus has however been a subject of much discussion among scholars, and it is not easy to reconcile all the passages in which the term occurs so as to deduce from them a consistent view of the matter. Sometimes indeed Nexus appears to be used in the same sense as Addictus, which cannot cause any difficulty if we consider that the effect of being Nexus and Ad­dictus was the same, as will presently be made probable.

As a Nexum was effected per aes et libram, it was in the form of a sale, and of course there was


an object of sale ; and this object of sale might be a thing or a person. We need not assume that " per aes et libram se obligare," and for a man to make himself Nexus are the same. In the case of Nexum aes, it is more consistent to consider the aes as the object of the obligatio per aes et libram, and in the case when a man made himself Nexus to consider the man as the object. It does not follow then that an obligatio per aes et libram always made a man Nexus ; but there is no difficulty in as­suming that a man only became Nexus with refer­ence to an obligatio per aes et libram, so that a man could contract an obligatio per aes et libramy and at the same time could make himself Nexus. A free man could not properly be the object of a sale, but it requires only a slight acquaintance with Ro­man law to perceive that this difficulty could be got over by a fiction. As in the case of Manu­mission Per Vindictam there was a fiction that the slave was free ; so there might here be a fiction that the freeman was a slave. And if this is not admitted as a probable solution, it cannot be denied that there is as much difficulty in understanding the co-emtio of a female, who was sui juris, which as a legal fact is quite certain, as the formal sale of a freeman with his consent. The notion of a free­man giving himself into the power of another, so far from being foreign to the notions of Roman law, as some writers have asserted, is perfectly consistent with them, as we see in the instance of adrogation. The Nexum then being in the form of a sale, the Nexus was in a servile condition as a necessary consequence of the Nexum, and the opinion that there must be an addictio to give effect to the Nexum, is inconsistent with the no­tion of the Nexum. According to this view, a Nexus, as soon as the contract of Nexum wag made, was in the condition of an Addictus, and both were treated as slaves. But it has been urged, that "one cannot discover any reason for this self-pledging (nexum\ since every insolvent, even when there was no nexum, must become his creditor's slave (addictus), and how can we under­stand that the abolition of the nexum was such an advantage gained by the Plebeians (Liv. viii. 28), if the addictio still remained, which might be ob­tained when there was no nexum ; and it cannot be denied that it did remain ? " The advantage consists precisely in the difference between a con­tract which cannot be enforced against a person without the forms of legal proceeding, and a con­tract which at once gives a man a power over his debtor without any application to a court of justice. The effect of the abolition of the Nexum, in this its special sense, while the Addictio still existed, may be illustrated by the supposed case of a landlord's remedy for the recovery of his rent by distress being abolished, while his other remedies under the contract for letting and hiring remained. It is remarked by Goettling (Geschiclite der Rom. Staatsverfassung) that " the comparison of the Adrogatio and the Adoptio gives the clearest proof of the correctness of Savigny's view, who re­jects the notion of a freeman pledging himself. In the case of the Adrogatio of a Roman, who is sui juris, there was no mancipatio which such person could effect as to himself: but in the case of adop­tion, a mancipatio occurs, and it is effected by the living father and the son together. In the case of coemtio it certainly appears, as if the woman of herself effected a self-mancipation ; she, however,

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