MANUS INJE´CTIO
MANUS INJE´CTIO is a kind of legalised self-help,
which consists in a claimant laying hands on and arresting the person
subject to his claim, according to the forms of early procedure.
Manus injectio is used to signify either (1) an
arrest of this kind made out of court, and (2) an arrest carried out in
court before the magistratus, which is the strict sense of the term.
1. The seizure of a slave by his master is called
manus
injectio; e.g. the act of Claudius in seizing Virginia is so
described (
Liv. 3.44). A plaintiff might bring a
defendant into court by
manus injectio, if the
latter refused to obey his
in jus vocatio or
summons; and in the case of a judgment debtor or person in the position of a
judgment debtor, he could do this without any
in jus
vocatio.
2.
Manus injectio, carried out in court before
the magistratus, is the process of execution for debt according to the law
of the Twelve Tables; it is one of the five forms of
legis actio, and as
[p. 2.125]such is
described by Gaius (4.12). The law of the Twelve Tables relating to it is
cited and explained in a well-known passage of Gellius (
20.1). It appears from these sources that a debtor who had
formally acknowledged his debt and a judgment debtor had thirty days allowed
them to make payment, and after that time were liable to arrest at the hands
of their creditor and to be brought into court ( “aeris confessi
rebusque jure judicatis triginta dies justi sunto. Post deinde manus
injectio esto. In jus ducito,” Gell.
l.c.). Both parties being before the magistratus, the creditor
addressed the debtor as follows: “Quod tu mihi judicatus (sive
damnatus) es sestertium decem milia, quandoque non solvisti, ob eam rem
ego tibi sestertium decem milium judicati manum injicio” (Gaius,
l.c.); and he at the same time laid hold of some
part of the debtor's body, which was the act of
manus
injectio. The debtor was not allowed to resist the arrest and
maintain an action (
manum sibi depellere et pro se lege
agere): all he could do was to provide a responsible
substitute called
vindex (
qui vim dicit), who could resist (
manum
depellere or
vindicare) and carry
on an action as defendant. The debtor was released, it seems, by such
intervention on his behalf, and the vindex liable if his defence was
unsuccessful (cf.
Liv. 6.14). In default of a
vindex, the creditor might carry the debtor to his house (
domum ducere), and keep him in confinement for sixty days,
during which time the debtor's name and the amount of his debt were
proclaimed at three successive markets (
nundinae). This
domum ductio
probably required an order of the magistratus, which would be given as a
matter of course, supposing the judgment or acknowledgment to have been
proved (Lex Rubr. cc. 21, 22). During this period of sixty days, the debtor
was not a slave, but he was kept in chains, which could not be above a
certain weight ( “quindecim pondo, ne majore, aut si volet, minore,
vincito” ); the creditor being bound to supply him with a bare
maintenance, if he did not keep himself. ( “Si volet, suo vivito. Ni
suo vivit, qui eom vinctum habebit, libras farris endo dies dato. Si
volet. plus dato.” ) If there was no arrangement between the
parties, and the debtor did not pay his debt or anyone on his behalf, he
suffered a
maxima capitis deminutio, and might
be put to death or sold as a slave beyond the Tiber, all his property
passing to his creditor, and when there were several joint creditors being
divided amongst them (as to the different interpretations of the words
partis secanto, see
NEXUM). According to some writers, there was an
addictio or magisterial assignment of the
debtor to the creditor at the end of the sixty days; but there is no mention
in our authorities of any reappearance of the parties in court, and it is
perhaps better to suppose that a conditional assignment was contained in the
original order of tie magistratus. Persons who contracted a money debt by
nexum, which was a formal proceeding
per aes et libram in the presence of
witnesses, were probably considered to have made a sufficiently public
acknowledgment of their debt, and so may have been liable at once to
manus injectio on default; but the opinion
of some writers that no execution or proceedings in court were necessary in
this case cannot be supported, nor can it be shown that any part of the
ordinary process was omitted.
Manus injectio was not applicable for the
enforcement of any but a liquidated money claim; and was confined under the
Twelve Tables to
judicati, damnati, and
confessi. In course of time, however, some
other debtors were put either wholly or partly on the same footing as
judicati (Gaius, 4.22-25). The Lex
Publilia, evidently following the analogy of the Twelve Tables, allowed the
manus injectio in the case of money paid by
a sponsor, if the sponsor was not repaid in six months. The Lex Furia. de
sponsu allowed it against him who had exacted from a sponsor more than his
just proportion (
virilis pars). These and other
leges allowed the
manus injectio pro judicato;
that is, treated the debt as if it were a
res
judicata. Other leges granted the
manus
injectio pura; that is,
non pro
judicato, as the Lex Furia testamentaria and the Lex Marcia
adversus feneratores. But in these cases the defendant might resist the
manus injectio (
manum sibi depellere), and
defend his cause; but it would appear that he could only relieve himself
from the
manus injectio, by actually
undertaking to defend himself by legal means. Accordingly it was in these
cases an execution, if the defendant chose to let it be so; if he did not,
it was the same as serving him with process to appear before the praetor. In
course of time a law was passed called the Lex Vallia, by which every
manus injectio was made
pura, except in the cases of judicatus and of a person whose
debt had been paid by his sponsor (
is pro quo depensum
est); and consequently in the two latter cases, even after the
passing of this lex, an insolvent person could only escape arrest by finding
a vindex. The Lex Poetelia had previously put an end to
manus injectio on account of
nexum. This form of execution for debt was however put an end to
by the Lex Aebutia, which partly abolished the
legis
actio procedure. A dramatic scene of
manus
injectio is portrayed on a sarcophagus at Rome (Voigt, 1.63,
n. 3; Helbig,
Bullet. dell' Inst. 1866, 90, &c.).
(Keller,
Der röm. Civilprocess, §
§ 19, 83; Bethmann-Hollweg,
Der römische
Civilprocess, vol. 1.45; Bekker,
Die Aktionen d.
röm. Privatrechts, vol. i.; Karlowa,
Der
röm. Civilprocess z. Zeit. d. legis actionis; Huschke,
Nexum, p. 79, &c.; Savigny,
Das Alt.-Röm. Schuldrecht, Verm. Schr. vol. ii.
p. 369; Voigt,
XII. Tafeln, 1, § § 63-65;
Muirhead,
Roman Law, § 36.)
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