lease which, according to Gaius, was the same for a indicatum as for a debt incurred p. a. et l., and the doubling of the condemnation in later times against a defendant who denied liability in the actions on a legatum per damnationem and a mancipatory warranty, just as in the actio indicati. This doubling, he contends, is derived from the doubling against a vindex in a m. i., which was the common process for enforcing all these debts in early days. The formula of release for the principal case of nexumloan is not given by Gaius, but from that which he gives for 1. p. d. there is reason to infer that the release of a nexumloan recited a damnatio by the creditor, and this damnatio, it must be inferred, was an essential part of the formula of binding uttered by the creditor at the making of the loan. Now, according to Huschke, damnas esto was the regular term in statutes, as in wills and in judgments, for declaring a debt enforceable by m. i. The chief argument for this view is the formula of m. i. given by Gaius 4, 21, which recites "quod tu mihi indicatus sive damnatus es," &c. But the best remembered, though to my mind the least valuable, part of Huschke's argument, is his description of the nexum-loan as publicistic. He explains its peculiarly stringent effect by the consideration of the public nature of the transaction p. a. et l.—a weighing of metal as money by a libripens before five witnesses. These witnesses, according to his view, represent the five Servian classes, that is, the Roman people. The weighing is a public function, the creation of money, the state measure of value. The right acquired by nexum is acquired by the creditor in a public capacity as pars populi, and has the sanctity of a debt created by the authority of the State. After the introduction of coinage the weighing became symbolic, it was done once for all by the mint; but nexum did not at once lose its old effects. III. THE TWENTIETH-CENTURY SOLUTIONS. The view found in possession by Mitteis was not the Huschkeian view in its original form, as I have just sketched it. The revised versions varied, and therefore perhaps Mitteis was justified in attacking the original version. But the result of this procedure was that some of his arguments had been anticipated. However, for the moment, I will deal with the new solutions on their positive side. According to Mitteis,25 Huschke and Niebuhr were both wrong in deriving the right to seize the debtor from the nature of the nexum-loan. This was a contract in the modern sense. enforceable by legis a°. sacramento in personam. The condition of debtor-bondage, of a nexis in short, arose from a second transaction, also called nexum and also p. a. et l., which, if we will be taught by comparative law, can only have been a self-mancipation with immediate effect though defeasible on payment. By it the creditor got a right of ownership in his debtor, and the debtor avoided the terrible consequences of allowing himself to become indicatus. The novel feature of this theory is the gap which it leaves between the loan and the bondage. Both Huschke and Niebuhr join the two together; the bondage is implicit in the nature of the loan itself; and thus Mitteis stands as far from Niebuhr as from Huschke, and the self-mancipations of Niebuhr and Mitteis are not a point of agreement. In fact Mitteis's conception of the loan itself is nearer to Huschke's than to Niebuhr's. What is this wedge which Mitteis drives between the nexum-loan and bondage? I cannot resume all his arguments, but they amount to this, that Livy in describing the entry into bondage sometimes uses the phrases nexum se dare, nexum inire, and the like, and these point to a fresh act consummating a debtor's ruin, rather than to a regular enforcement of a bondage flowing ipso iure from the loan. There is a debt, and there follows nexum inire. Mitteis says this nexum inire means a second transaction by way of self-mancipation, while Huschke, and for that matter Niebuhr, says that it refers simply to the de facto beginning of bondage. Philologically Mitteis's is the better interpretation of the phrases, but I believe that careful examination will reduce the relevant passages of Livy to a single one, and I do not admit that the description of nexus in Varro, at the end of the passage quoted above (p. 139), is at all decisive. It says the nexus "dabat operas," and, waiving the fact that " dabat" is a conjecture, we have no right to deduce from this phrase a technical datio in the sense of a conveyance. The man 2 Mitteis, ZSS. 22, pp. 96 ff. In his first article Mitteis was willing to concede that the selfmancipation might occasionally accompany the loan, and in such case be suspensively conditioned till default, as well as resolutively: ZSS. 22, pp. 122-3. But he revoked this concession in 1904: ZSS. 25, pp. 282-3. "rendered his services "; that is all. If indeed we accept Mommsen's tempting emendations id aes (MS. idem) and ut ab aere obseratus (MS. obaeratus), the passage tells the other way. The man is put in bonds by the nexum aes, which is the money lent (pecunia quae per nexum obligatur), and there is thus a direct connection between the loan and the bondage. The passages of Livy cited by Mitteis as inconsistent with Huschke's doctrine, and we may add with Niebuhr's, are Livy 2, 24, 6 (cf. Dion. 6, 26, 1 and 6, 29, 1); 8, 28, 2 (cp. Val. Max. 6, 1, 9); and 7, 19, 5. Livy 2, 24, 6 (edict of Servilius 495 B.C.) we quis civem Romanum vinctum aut clausum teneret quominus ei nominis edendi apud consules potestas fieret, neu quis militis donec in castris esset bona possideret aut venderet, liberos nepotesve eius moraretur." Huschke 26 explained this and the companion passages of Dionysius by the hypothesis that execution on nexum-loan included those in the debtor's potestas. In that case, asks Mitteis, how are we to explain Livy 8, 28, 2, "L. papirius is fuit; cui oum se C. Publilius ob aes alienum paternum nexum dedisset," &c., and Val. Max. 6, 1, 9, “T. Veturius cum propter domesticam ruinam et grave aes alienum C. Plotio nexum se dare admodum adolescentulus coactus esset," &c.? If the son was bound by the father's nexum, why force him nexum se dare? The phrase nexum se dare must denote a fresh legal act, not the de facto beginning of bondage as Huschke 27 would have it. . In further confirmation of Mitteis, Livy 7, 19, 5, "Nam etsi unciario fenore facto levata usura esset, sorte ipsa obruebantur inopes nexumque inibant." Here nexum inire cannot be the execution of existing debts, but must be a transaction consequent on previous debts. But the difficulty about sons is easily surmountable. Thereis no need to suppose that the nexum-loan bound the sons ipso iure. The supposition that a father might on occasion mancipate his children by way of further security sufficiently accounts for the infrequent notices of their seizure. Bekker 28 and Mommsen,29 it is true, both preserve Huschke's doctrine that the sons were bound by the father's nexum. Bekker sug 26 Nerum, p. 61, n. 67. 29 ZSS. 23, p. 350. gests that the father's debts were not nexum-debts, but I feel that we are bound to assume that they arose out of loans, and loans, naturally, by way of nerum. Mommsen thinks that the creditor may have had the kindness to renew with the sons the nexum of the father, though they were already fully bound by it. But why should he? It is easier to suppose that the nexum-debt did not descend, at least with full force, upon the heres: 30 Livy 7, 19, 5, however, remains independent of these explanations. The people were first crushed by loans, and then nexum inibant. Nexum inire, says Mitteis, must be taken as contractum inire; it cannot mean the de facto entry into bondage, as Huschke contended. The explanation of Mommsen 31 and Kubler,32 that the previous debts were in some milder form (presumably sponsio, not mutuum, as there is interest), does not satisfy. It is better to recall the fact that the modern Huschkeian position does involve a definite act of submission to bondage by the nexum-debtor. The m. i. provided by the Twelve Tables for iudicati terminates in death or sale trans Tiberim.33 Why, then, if nexi and iudicati are not essentially distinguished, do nexi appear in the historians as kept in permanent bondage? How is it that Livy, who does not spare our sensibilities, gives us no example of the extreme penalties being inflicted either on iudicati or on nexi?34 We can only suppose that a conventioual substitute, under the ius paciscendi cum creditore (Twelve Tables, 3, 5), took their place in practice. Such pacta may even have become obligatory, just as pacta in composition of delicts became obligatory in the shape of the early penal actions." 35 On this shewing the inconsistency of Livy 7, 19, 5 with the Huschkeian view is not more than verbal. Livy describes as nexum, in this one passage, the pactum which led to the characteristic result of nexum. Another passage sometimes quoted against Huschke creates no difficulty at all (Livy 2, 23, 5, 6). A centurian complains, "Aes alienum fecisse. Id cumulatum usuris primo se agro paterno avitoque exuisse, deinde fortunis aliis. Postremo 30 Nerum, p. 61, n. 67. 31 ZSS. 23, p. 350. 32 ZSS. 25, p. 276. 33 Twelve Tables, 3; Aul. Gell. 20. 1, 42 ff.. 15, 13, 11; Schlossmann, Schuldrecht, &c., pp. 61 ff.; Kleineidam, Personalexekution, pp. 244 ff. "Cp. Aul. Gell. 20, 1, 48-52. Bekker, ZSS. 23, 16; Kleineidam, op. cit., pp. 56 ff., 74. velut tabem pervenisse ad corpus: ductum se ab creditoribus non in servitium set in ergastulum et carnificinam esse.” Naturally a man would sell his last acre and part with his last shilling before submitting to bondage. The historians in depicting economic ruin dwell by preference on the last and most drastic stages of debt, and are comparatively silent about the earlier and less drastic. Mitteis also cites passages from Dionysius, but I am so convinced that Dionysius directly supports the Huschkeian view, that I will reserve till later the consideration of his evidence, for what it may be worth. One passage of Livy (7, 19, 5), if I am right, two or three more if I am wrong, seem an insufficient basis from which to infer juristic details to which there are strong objections. The objections are indeed strong. The proposition of two distinct nexa, a nexum-loan and a nexum creating bondage, is a paradox imposing a heavy burden of proof. Mommsen ** at once pointed out that Mucius's opinion in the Varro-passage proves the identity of nexum with a contract of loan; that no aes remains to be weighed in the supposed second transaction; that the second nexum is unnecessary, since the desired effects can equally well be attributed to the first; and that the passages of the historians admit of a different interpretation from Mitteis's. On the positive side Mommsen, in cryptic and guarded language, declared himself for Niebuhr's old theory. These objections to Mitteis seem decisive; the doctrine of two nera has been refuted, so far as refutation is possible in this sphere. But it led to an interesting development. Lenel," while accepting Mitteis's doctrine of two stages, the incurring of the debt and the contracting of bondage, rejects that of two nexa; for him the first stage, the loan, is not nexum at all. The second stage, the nexum inire, nexum se dare, of Livy is the only nexum in this connexion, but it has nothing to do with the nexum of the Twelve Tables, of Manilius, Mucius, and the rest. It was not a self-mancipation, which, with Savigny, Lenel holds to be impossible, but most probably a vadimonium. This remarkable suggestion is arrived at as follows. The earliest debts were penalties for delicts, and a man unable to pay them found vades. Later he was his own vas, and thus a way of creating liability by contract arose. The total disappearance of the vadimonio nexus is due to the abolition of bondage by the Lex Poetelia. 36 ZSS. 23, pp. 348 ff. |