We cannot say that such an evolution is impossible, since it would be an exact parallel to the German radiation, and the praes of later publicistic law is to some extent analogous. But a vadimonium outside the law of procedure is unsupported by any Roman evidence.38 What is the force of comparative law in such circumstances? Its real function seems to be to enable us to understand the native evidence when we are moving in a region of unfamiliar because primitive ideas. But the native evidence, when so understood, must prove its own case. The same analogy has been applied with much greater probability by Mitteis to sponsio.39 40 Pfluger, therefore, who follows Lenel in denying that the loan was a nexum, returns to Scheurl's 41 old doctrine of mancipation of operae for the form of the nexum creating bondage. Thus those who accept Mitteis's doctrine of two transactions, a loan and a creation of bondage, will not accept his two nexa; but whereas the older writers had never heard of the second nexum, the younger school proposes to abolish the first. And this is the logical outcome of the new speculation, for Mitteis's position is evidently a compromise. Can this denial of the existence of nexum-loan be justified? If not, we are thrown back upon the old choice between Niebuhr and Huschke. Lenel 42 brought two arguments against the existence of a nexum in the sense of a loan per aes et libram. 1. The identification of nexum with mancipium in the Twelve Tables phrase," ubi nexum faciet mancipiumque." He argued that the suffix -que instead of -ve shews that nexum mancipiumque represent one transaction. But, as Kubler and Kleineidam simultaneously pointed out, -que and -ve are so constantly confused in manuscripts and inscriptions that there is no presumption for -que in the original text. But, admitting -que, there are other passages in the Twelve Tables where -que is disjunctive, not conjunctive. 2. In later speech nexum means omne quod per aes et libram geritur, or more narrowly mancipatio. To this argument there are two answers: first, that it takes no account of 38 Debray, N. R. H. 1910. pp. 521 ff. "Mitteis, ZSS. 22, p. 97: Festschrift f. Bekker (1907), pp. 109 ff.; Privatrecht, 1, pp. 266 ff. . "Pflüger, Nerum und Mancipium (Leipzig, 1908). "Scheurl, Vom Nerum, 1839, cited by Pflüger, p. 97, n. 187. 42 ZSS. 23, pp. 84 ff. "Kübler, ZSS. 25, pp. 254 ff.; Kleineidam, Personalexekution. Mucius's weighty dissent in the Varro-passage, and secondly, that the later identification, by Cicero and others, of nexum with mancipium is not a technical usage, but a popular usage centuries after the Lex Poetelia. These two points need development. 66 Mucius, Lenel admits, dissented from the current view, nexum est omne quod per aes et libram geritur," but he must be understood to have said that nexum denotes what is contained in an act per aes et libram in addition to (praeter quam [quod] mancipio detur) the mansipium or laying hold of the thing, in fact that it is that part of the transaction which creates an obligation. Thus Mucius suggests that nexum refers to the obligatory side of a mancipatio (actiones auctoritatis, and de modo agri), mancipium to the conveyancing. And so it is that the phrase nexum mancipiumque in the Twelve Tables describes one single transaction. But Kubler and Kleineidam have both shewn the superiority of the older interpretation: "nexum is, according to Manilius, every transaction per aes et libram, mancipations included; according to Mucius it refers (only) to acts per aes et libram of a (purely) obligatory character, excluding (therefore) mancipations.". The pivot of this interpretation is that "praeter quam (or quom) " mancipio detur" of Mucius, or perhaps Varro, must be antithetical to "in quo sint mancipia" of Manilius, or again perhaps Varro. Hence praeter, which in itself may be inclusive or exclusive, must here be used in its exclusive sense. But if we ask what acts per aes et libram other than mancipations Mucius can have meant, we can only answer loans. It is Mitteis,45 to whom the nexum-loan is an awkward fact, who has observed that a technical usage of the word nexum is only preserved in the phrases nexum aes, nexi datio and nexi liberatio. Nexi datio may refer to mancipation, but nexum aes is defined by Festus as pecunia quae per nexum obligatur," and nexi liberatio (of Aelium Sallus in Festus) must be identical with the solutio per aes et libram of Gaius. It means freeing from nexum, not freeing by way of nexum.*6 As I have pointed out already, this solutio is the contrarius actus of a debt created by an act per aes et libram distinct from a mancipatio. Thus one, if not the only, technical usage "See the preceding note. 46 Wissowa in Mitteis, Privatrecht, 1, 141, n. 16. of nexum refers to debt. I conclude that nexum-loan exists, though I admit that the later popular usage of the term nexum creates a difficulty which has not yet been satisfactorily explained. Thus to my first definite conclusion, that Mitteis's two nexa are impossible, I add a second, that the one nexum that exists is the nexum-loan, A complete account of modern views would include the theories of Schlossmann, Huvelin, Stintzing, and Kretschmar. We must confine ourselves to a very brief mention of the highly original position of the first-named. Like Lenel, he adopts Mitteis's argument against Huschke, and like Lenel he identifies nexum with mancipium in the Twelve Tables. But his conclusions are quite different. He emends and translates the opinion of Mucius reported by Varro (supra, p. 139) as follows: "Mucius says that the term nexum is applied to things that are bound per aes et libram, abstracting from the fact that they are also mancipated. This the word itself shews. For the same Mucius writes: that which is bound per aes et libram does not become really one's own (neque suum), whence nexum. A free man who was giving his services instead of money which he owed until he paid it was called nerus from nectere" (inserting a nectendo) as obaeratus is derived from aes" (i.e., the raudusculum used in the mancipation). 66 This interpretation makes the passage, up to the last sentence, deal with the fiduciary mancipation of things still practised in Mucius's day; and the last sentence with a disused fiduciary self-mancipation of persons. Similarly the Twelve Tables phrase nexum mancipiumque refers to the fiduciary pledge of persons or things; nexum, according to Mucius, standing for the contractual and mancipium for the conveyancing element. When the Lex Poetelia killed nexum mancipiumque of persons, nexum mancipiumque of things became the general name for a transaction per aes libram. Personnexum was enforced by personal action, judgment, and m. i. According to this theory there is no such thing as a simple debt in primitive Roman Law. A man may charge his pro 4 See the references, p. 8, n. 22. Huvelin combines a fiduciary mancipation with a damnatio. Stintzing identifies nexum with mancipium, but distinguishes nerum mancipiumque from mancipatio. Kretschmar is for nexum a binding of operae enforceable by legis actio sacramento in personam. He gives an original interpretation of the Varro-passage. 48 In this extreme form Schlossmann's doctrine is refuted by Kleineidam's citation of Twelve Tables 5, 9. in his Personalexekution, p. 89 perty, or in the last resort his person, but not simply pledge his credit; and the charge on property involves no general personal liability. One must admit that Schlossmann has called attention to an unduly neglected form of early debt, the fiduciary mancipation of things. But his theory of person-nexum is the real question here, and it is reached by an interpretation of Mucius which is at least as objectionable as Lenel's, and involves, moreover, unnecessary emendations. In short, here also the refutations of Kubler and Kleineidam seem complete, and we have also to remember the difficulties involved by every theory of self-mancipation. IV. NIEBUHR OR HUSCHKE, We are thrown back upon the old question: what was the exact form of this loan, and how did it lead to bondage? We are faced with the old alternative: Niebuhr or Huschke. I have already stated 50 that the objections of Niebuhr's view are almost insuperable. Still, they must be balanced against the objections, old and new, which Mitteis urges against Huschke. These have been dealt with in detail recently by Eisele.51 I must content myself here with the most important. 1. Huschke had argued of nexum, because publicistic therefore executable by m. i. Mitteis 52 complains that the conception "publicistic" is cloudy and ungrounded, and one can only agree. If indeed nexum can be shewn aliunde to have been executable by m. i., the adjective "publicistic" is not altogether inappropriate, but in any case it serves no good purpose. 2. That nexum is executable by m. i. is precisely what Mitteis 53 denies can be shewn. In fact he argues the contrary, from comparative law, from Gaius's treatment of m. i., and from the historians. (a) Comparative law, it is urged, offers no examples of contracts directly executable on the person, but many examples of contracts by way of self-sale or self-pledge. This leads us to look for the self-sale in the Roman evidence, but it cannot Supra, p. 147, n. 2. 59 Supra, p. 141. 51 Studien zur röm. Rechtsgeschichte (Tübingen, 1912). 53 Mitteis, op. cit., p. 104. impose a Roman self-sale upon us a priori and against powerful native objections, and, as we have said, there is no trace of such an institution in Roman Law, and it seems against principle.5+ Kubler,55 indeed, has raised the question whether comparative law speaks so decidedly as Mitteis contends. He points out that the Greek contracts with execution clauses, in the form tes tes práxeos öuses ek te emou (the debtor) kai ek tón huparchóntôn moi pántôn kathaper ek díkes, frequently found in the papyri, created a right of execution against the person of the debtor without judgment. And Mitteis himself has abandoned his older view 56 that these clauses created no such right. But it remains to be seen whether such contracts are at all primitive in the Greek world, and not the product of somewhat advanced commercial needs. At any rate this consideration makes Roby's citation of our own cognovit actionem irrelevant. (b) The second objection 58 to Huschke's is Gaius's treatment of m. i. Not merely is he silent about m. i. on nexum, but he treats it as in origin iudicati and in its extensions pro iudicato. We answer that it is one thing to contradict Gaius, another to doubt his implied conceptions of legal history. Huschke, like Gaius, seems to have regarded m. i. as primarily iudicato, in which case nexum ought to have appeared as a case of m. i. pro iudicato. But this is precisely a point on which comparative law has changed our whole view. As long ago as 1871 Bekker in his Aktionem 59 pointed out that m. i. is the oldest legis ao., and consequently there must have been a time when there was m. i. without any possible judgment to enforce. What debts, other than judgment debts, could m. i. have enforced? Delictual penalties, probably; nexum-debts, possibly. Nexum grounded m. i. because m. i. was the ordinary way of enforcing a debt, not because it was given the privilege of being enforced like a iudicatum, pro iudicato. M. i. pro iudicato is the conception of a later age, when m. i. iudicati had become the type, and execution of a debt without judg 54 Supra, p. 141. Kübler, ZSS. 25, pp. 276 ff. Swoboda, ZSS. 26, pp. 210 ff.: Pflüger, Nexum und Mancipium, pp. 80 ff.: Mitteis. ZSS. 29, p. 501; Mitteis-Wilcken, Papyruskunde (1912), 2, 1, 121. Reichsrecht u. Volksrecht, pp. 419 ff. 57 Private Law, 2, p. 308. "Mitteis, op. cit., pp. 105-6. "Aktionen, 1, pp. 18 ff.: cp. ZSS. 23, pp. 11 ff.; 30, pp. 15, 18-19. |