The Ancient Library
 

Scanned text contains errors.

NEXUM.

is not herself auclor, but her guardian is auctor." There may be some weight in this observation, the point of which appears to be this : there was man-cipatio in the case of adoption, where the adopted person Avas in the power of another, but no man-cipatio in the case of Adrogation, where the adopted person was not in the power of another. The tacit conclusion then seems to be, that if in one case there was no mancipatio and yet a person was brought into the power of another with his own consent, there could be no mancipa­tio when a person consented to put himself into a servile relation to another ; for it is here assumed that a nexum was voluntary. But this is not a legitimate conclusion. It is easy to see that man­cipatio in the case of adoption, where the son was in the power of the father, was a sufficient form, considering that the person adopted was only a films familias ; and that Adrogation, which was of a person who was sui juris, was a very different matter, and required other forms to be observed, because the person adrogated was not a filius-familias. [adoption.] A nexum effected no change of familia like an adoption or adrogation, and while its object was different from that of both of these ceremonies, it is quite consistent for its form to have been the same as the form of the one, and different from the form of the other.

The mode in which Goettling (p. 123) explains this matter of the nexum is as follows : " A free citizen can come into a mancipii causa when he cannot pay a loan (aes cojifessum) out of his own means. What in such case he has to give security for, that to which he has bound himself, is called nexum (namely aes) ; hence the phrases nexi datio, nexi liberatio. The person who does such an act is called nexum (from nexus nexus) iniens, nexum fadens, but after he has received the loan in the above solemn manner, he is nexu obligatus, nexu vinctus: as soon as he has failed to fulfil his obli­gation, and in consequence of such failure has been addicted (addictus), and given in mancipium by the magistrate, he is called nexus (adjective), qui se nexum dedit" — a more confused account of the thing, or one more remote from legal precision, can­not be imagined. The passage of Livy (ii. 27) is not easy to explain. (Compare Liv. ii. 23.)

The Lex Poetelia (b. c. 326) alleviated the con­dition of the nexi. So far as we can understand its provisions, it set all the nexi free or made them soluti (Liv. viii. 28, nexi sohtti\ and it enacted that for the future there should be no nexum (cautumque in posterum ne necterentur^ and that no debtor should for the future be put in chains. Addictio however still continued in force after the Lex Poetelia, as we see in several instances. (Liv. xxiii. 14; Sail. Cat. 33 ; Cic. pro Flacco, 20.) It appears from the Lex Galliae Cisalpinae (c. 21, .22), that in the case of other actions there was only a Possessio Bonorum, but in the case of pe-cunia certa credita there was personal execution. The enactment of the Lex Julia which introduced the Bonorum Cessio, and gradual changes in so­ciety, must have diminished the frequency of the Addictio. [BoNORUM cessio.] In the system of Justinian, Nexum did not exist, for the use of aos et libra in legal transactions had ceased.

Neither the Addictus nor the Nexus was a slave, and his ingenuitas was only in suspense. As to the Nexum, it must have been necessary that the effect of the legal act by which the ingenuus was

7.9?

NEXUM.

made a nexus should be done a\vay with by another legal act; and this seems to be the Nexi liberatio which was done per aes et libram. It also ap­pears from a passage in Livy (vi. 14), that a certain person, who was judicatus pecuniae, and is not described as nexus, was released from his obligation per aes et libram. In the time of Gains an imaginary form of payment per aes et libram was retained in cases where the obligation was contracted either per aes et libram or was due ex judicati causa. (Gaius, iii. 173—175.) There seems indeed no reason why this ceremony should have been used in the case of an addictus who wished to be restored to his former state, for the Addictio was by implication only to have an effect till the debt was paid. It might be contended that such was the effect of the Nexum also, but we must distinguish between the effect of a sentence of the Praetor and a solemn act like that of the Nexum, which was in form a transfer of owner­ship. The addictus was protected against injuria from his master (Gaius. i. 141), and it is said that he retained his name and tribe ; but it is somewhat difficult to understand how he retained his tribe, since he had sustained Tnfamia. Upon the dis­charge of his obligations the addictus, it seems, returned to his former status.

It was Niebuhr's opinion that the Nexum, when it became a form of giving security, had not its complete effect until the debtor was unable to pay and was brought into the condition of a debtor-slave by the addictio. An answer to this has been already given. If it required an addictio to make a person nexus, what was the use of a Nexum when a man might become addictus, even when there was no Nexum? The only intelligible so­lution of all these difficulties is that a Nexum, in which there was a mancipatio personae, had an immediate effect.

It seems to be a legal consequence of a Nexum and an Addictio that the children, if they were in the power of the parent, must follow his condition, as in the case of adrogation.

In the case mentioned in Livy (viii. 28), where the son is said to have been nexus for his father's debt (cum se nexum dcdisset), it may be that the father bound his son only, which he could certainly do just in the same way as he could mancipate him. If the son was not in his father's power, he could still bind himself on be­half of his father. The expression in Livy does not enable us to determine which of the two possible cases was the real case, but it seems pro­bable that the son was in the power of the father. Unterholzner observes (Lelire des Rom. Rechts von den Schztldvetfidltnissen, i. p. 31. note g): "The legal condition of the nexi is one of the most ob­scure points in the old Roman law. It is here as­sumed that a man by the personae mancipatio came into this condition. Persons who were in the Patria Potestas could for the noxae causa, which was long maintained in practice, and also on ac­count of the debts of him who had the Potestas, consequently in a sense after the nature of a pawn, and by virtue of the so-called paternal power of sale, be mancipated. Further, we must assume that persons who were sui juris could also manci­pate themselves by way of pawn, though no evi­dence of that has been preserved. This is made the less incredible, since we cannot doubt, that women who were sui juris could make a coemtio,

Pages
About | First | English Index | Classified Index | Latin Index | Greek Index

796

797

798
letter/word  
page #  
Search this site
Google


ancientlibrary.com
WWW
All non-public domain material, including introductions, markup, and OCR © 2005 Tim Spalding.
Ancient Library was developed and hosted by Tim Spalding of Isidore-of-Seville.com.