NEXUM
NEXUM The most general meaning of this obscure and
much-debated term seems to be any legal transaction entered into with the
wellknown form of the Balance and Bronze. Festus says, “Nexum est, ut
ait Gallus Aelius, quodcunque per aes et libram geritur, idque necti
dicitur: quo in genere sunt haec: testamentifactio, nexi datio, nexi
liberatio:” similarly Varro (
L. L. 7.105),
“Nexum Manilius scribit omne quod per aes et libram geritur, in
quo sunt mancipia:” the similarity of the expression suggesting
strongly that both writers were transcribing somewhat unintelligently from
an older author. But some writers (among whom Varro mentions Mucius
Scaevola) seem to have restricted the signification of nexum to transactions
effected
per aes et libram with the object of
creating an obligation--in other words, to contract as opposed to mere
conveyance: and there is a large consensus, if not complete unanimity, among
those learned in the antiquities of Roman law, in favour of the view that
there was a very old contract-form among the Romans called
nexum, in which the obligation or
juris vinculum was established by the use of the
aes et libra, and which, so long as it subsisted,
possessed at least one very peculiar characteristic, which made it extremely
popular among the wealthy patrician lending class at Rome.
It is supposed that the form was originally employed for creating money
loans. The ceremonial was the same in substance as that in every
mancipation, and included the presence, besides the parties themselves, of
the five witnesses and a libripens. But to the conveyance of the money,
which alone an ordinary mancipation would have contained, there seems to
have been superadded a
damnatio by the lender,
analogous to that in one of the four old forms of bequest [
LEGATUM], which Huschke
conjectures to have run somewhat as follows: “Quod ego tibi mille
asses hoc aere aeneaque libra nexos dedi, eos tu mihi post annum cum
fenore unciario dare damnas esto.” According to this view, the
obligation arose, as it were, from an act of legislation, the five witnesses
representing the whole populus, as in other transactions in which the same
form was observed. By others (especially Niebuhr, following Salmasius) the
obligation is held to originate in a second mancipation: the lender conveyed
the money to the borrower, and then the latter sold or pledged himself to
the former as a security for repayment, it being provided that no action was
to be taken on this sale or mortgage of the person until default had been
made in performance of the obligation: but since Savigny's essay referred to
at the conclusion of this article, the hypothesis of a sale or pledge of
himself by the borrower seems to find few supporters. So much as to the
divergent views as to the precise mode in which the obligation to repay the
money loan originated. Subsequently it is believed that by the
fiction of a money loan other contracts (e. g.
sales) came to be represented as made by nexum, which thus became an
abstract form in which any transaction which left an outstanding money debt
could be expressed (
Liv. 8.28). The debt was
termed
nexum aes ( “nexum aes apud
antiquos dicebatur pecunia, quae per nexum obligatur,”
Festus: so, too, Varro observes, “Quod
obligatur per libram, nec suum sit, inde Nexum dictum” ), and
sometimes, too, perhaps
nuncupata pecunia; for,
according to Festus, “nuncupata pecunia est, ut ait Cincius in lib.
ii. de officio jurisconsulti, nomina certa nominibus certis pronuntiata:
CUM NEXUM FACIET MANCIPIUMQUE, UTI LINGUA
NUNCUPASSIT, ita ut nominavit locutusve erit, ITA IUS ESTO. The making of a contract in this
form was known as
nexi datio, and the
debtor was said
nexum inire” (
Liv. 7.19).
The peculiarity of this form of incurring obligation, to which it owed its
popularity among the lending class, was that, if the day fixed for payment
passed without such payment being made, the creditor was under no necessity
of bringing an action at law to prove the existence of the debt: the debtor
stood on the same footing with a defendant against whom a judgment had been
given (
judicatus), or who had admitted his
liability in court (
in jure confessus): he
became
nexus himself, and liable forthwith to
the severe execution procedure by
manus
injectio, or, as Hölder expresses it, “Nexum ist
die Begründung einer Executionsreifen Geldschuld
per aes et libram.”
“Liber” (says Varro) “qui suas operas in servitutem pro
pecunia quadam debebat, dum solveret, nexus vocatur, ut ab aere
obaeratus;” a definition clearly referring to the nexus'
liability to be sold into foreign slavery at one time, and later to work out
his debt as quasi-slave of his creditor. As soon as the day fixed for
repayment had passed, the latter could arrest him at once, take him before
the praetor, and after statement of the contract (supported, it may be
presumed, by the evidence of the five witnesses) have him, along with the
children in his power (
Liv. 2.24;
Dionys. A. R. 6.29,
37),
addictus
in the usual way to himself by the magistrate. After such
addictio, the debtor was in the unenviable position described
under MANUS INJECTIO, of which a full account is given by Gellius (
20.1). Unless he paid the debt, or got a vindex to
undertake his defence at the risk of being condemned
[p. 2.230]in double damages, the creditor led him away and kept him
chained and fettered in one of the private prisons so familiar to readers of
early Roman history, in which he had the privilege of being supported on his
own means, in default of which the creditor was bound to provide him daily
with at least a pound of meal. His detention here lasted for sixty days,
during the first half of which he could still procure his release by payment
or compromise: during the second half the creditor had to take him before
the praetor on. three successive market-days, and publicly proclaim the
amount of the debt, to give anyone else an opportunity of saving him from
the final severities prescribed by the Twelve Tables. At the conclusion of
the sixty days, if the money were still unpaid, the creditor had the choice
of two alternatives: either to set him free, or to remove him from the. list
of Roman citizens by selling him into foreign slavery or: killing him. If
there were more than one creditor, the statute permitted them to cut each
from his body a portion proportionate to their claims: “tertiis
nundinis partes secanto: si plus minusve secuerunt, se fraude
esto.” The advantages of nexum, as a form of contract, thus consisted
in the creditor's being dispensed from the necessity of proving his debt by
the ordinary legal process; over the ordinary creditor he had a superiority
analogous to that of the landlord who can distrain for rent. But this was
seriously curtailed by a Lex Vallia (Gaius, 4.25, Studemund), which limited
the operation of
manus injectio in its original
form tothe cases of judgment debtors and defendants its condemned in an
actio depensi [INTERCESSIO]: the
nexum-debtor, on being arrested for nonpayment, was allowed “sibi
manum depellere et pro se agere;” he was no longer obliged to
submit to imprisonment until the debt was proved against him by ordinary
legal process, and against this he. could defend himself in person, instead
of through a. vindex, though still he would have to pay double damages if
cast in the suit. Subsequently a statute usually called Poetelia or Poetelia
Papiria, the relation of which to the Lex Vallia is very obscure, is
believed to have practically put an end to nexum as a form of contract
altogether. The passages on which this inference is based are the
following:--
Liv. 8.28, “Eo anno plebei
Romanae velut aliud initium libertatis factum est, quod necti desierunt:
mutatum autem jus ob unius feneratoris simul libidinem simul
crudelitatem insignem. L. Papirius is fuit, cui cum se T. Publilius ob
aes alienum paternum nexum dedisset, quae aetas formaque misericordiam
elicere poterat, ad libidinem et contumeliam animum accenderunt. Victum
eo die ob impotentem injuriam unius ingens vinculum fidei: jussique
consules ferre ad populum, ne quis, nisi qui noxam meruisset, donec
poenam lueret, in compedibus aut in nervo teneretur, pecuniae creditae
bona debitoris non corpus obnoxium esset. Ita nexi soluti cautumque in
posterum ne necterentur;” --
Cic.
de Republ. 2.34, 59, “Cum sunt propter
unius libidinem omnia nexa civium liberata, nectierque postea
desitum;” --Varr.
L. L. 7.105, “ut omnes, qui
bonam copiam jurarunt, ne essent nexi sed soluti” (cf.
Dionys. A. R. 16.5). The general result of
the statute seems to have been to release all those who at the time of its
enactment were in private imprisonment under a nexum, because they had not
chosen to dispute their liability, and to prohibit for the future the
employment of
manus injectio in any form
against debtors who had incurred an obligation in this manner; nexum lost
the last of its old advantages for the creditor which the Lex Vallia had
left it, and so went out of use: “Nectier postea desitum.” It
is not improbable that the Lex Silia, which introduced a new
legis actio for, the recovery of money debts, was
occasioned by this legislation.
It would seem that even before the Lex Poetilia the rule of the Twelve
Tables, which compelled the creditor, after the lapse of sixty days, to
either release, kill, or sell the
debitor
addictus into foreign slavery, had been repealed or gone into
desuetude. The Lex Poetilia sanctioned the retention of the debtor as a
quasislave of the creditor, but prohibited the use of bonds or fetters
unless the action in which he had been condemned was
ex
delicto: he could be kept at work by the creditor, the value
of his labour being deducted from the sum of his debt, and returned to his
former status as soon as it had been discharged in full.
Corresponding to the creation of an obligation by nexum was a similar method
of discharge, called
nexi liberatio. The form
of this, though no longer used for this particular purpose after nexum had
ceased to exist, survived for the discharge of other obligations held to be
incurred
per aes et libram or in a similar
manner: application in the payment of judgment debts and of legacies given
per damnationem is described by Gaius
(3.173-175).
Though this general theory of nexum as a contract-form is accepted (with more
or less of divergence and modification) by most writers on Roman law, it
should be remarked that the passages in the Latin authors in which the words
nectere, nexum, nexus occur,, contain in
themselves very little to support it. The writer of this article has been
favoured by Professor Nettleship of Oxford with an exhaustive examination of
these passages, the general conclusion to which he was led being that the
terms express only obligation in general, especially obligation in the way
of pledging, and that the hypothesis of a special contract-called
nexum, coordinate with stipulatio and expensilatio,
is really untenable. If the writer understands him correctly, he takes the
passages dealing with the so-called Lex Poetelia to chronicle only the
abolition of the private prisons of the Roman usurers, or at any rate the
prohibition of the older severities on the part of the gaoler, whatever the
nature of the action in which the defendant had been condemned.
Among earlier writers there appears to have been considerable confusion
between
nexum and
addictio.
“Addicere” apparently expresses the magisterial award of one
person to another--under the older and more severe procedure, for private
execution or sale into foreign slavery: under the later system, to work out
by his labour the sum due to his unsatisfied creditor. A man might be
addictus either because he was
judicatus or
confessus,
because he had failed to perform a contract into which he had entered by
nexum, or under the Twelve Tables because he
[p. 2.231]had
“been convicted of
furtum
manifestum” (Gaius, 3.189); but the relation between the
two terms seems sufficiently clear, though Niebuhr was the first writer who
placed it in clear. light. He himself found the leading characteristic of
nexum in the sale or pledging of. his own
person by the debtor; but this idea, as has been observed above, was
strongly combated by Savigny, who propounded the theory that the personal
execution known as
manus injectio was allowed
only on money loans and other debts fictitiously represented as money loans
by means of nexum; the execution upon all other judgments was against the
property, not against the person, of the debtor. This, however, has found
little favour with Savigny's successors, and seems to be sufficiently
disproved by Gaius (4.21), who says that
manus
injectio was prescribed as the proper procedure on all judgment
debts whatsoever by the Twelve Tables. A divergent view expounded with great
fulness by Huschke, and adopted by Mr. Long in the earlier editions of this
work, is that nexum entitled the creditor to seize the debtor, and to treat
him in the manner described by Gellius, without resorting to the magistrate
for formal
addictio at all. Van Heusde
represents nexum as the condition from which
addictio proceeded, and thinks that. the Lex Poetelia abolished
both by permitting in the future only execution against the property; but
the survival of
addictio in consequence of
manus injectio resorted to upon a judgment
to far later times is proved clearly by
Liv.
33.14; Sallust.
Cat. 33; Cic.
pro
Flacco, 20-22, 48-53.
(The best discussions on the subject are Niebuhr,
Röm.
Geschichte, 1.637-644, 2.667-673, 3.178-181; Savigny,
Ueber das altrômische Schuldrecht, vermischte
Schriften, 2.396-470; Scheurl,
Vom Nexum,
Erlangen, 1839; C. Sell,
de juris Romani nexo et
mancipio, Brunswick, 1840; C. Van Heusde,
de lege
Poetelia Papiria, 1842; Bachofen,
Das
Nexum, 1843; Danz,
Geschichte des röm.
Rechts, 1846, Theil 2.85-106; Huschke,
Ueber das Recht des
Nexunm, Leipzig, 1.846; Giraud,
Des Nexi ou de la
condition des debiteurs chez les Romains, Paris, 1847; Muirhead,
Roman Law; Puchta,
Institutionen,
§ § 162, 269, 277, 321.)
[
J.B.M]
