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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.” 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.” Pfluger,” therefore, who follows Lenel in denying that the loan was a nearum, returns to Scheurl’s “ old doctrine of mancipation of operae for the form of the nearum creating bondage. Thus those who accept Mitteis’s doctrine of two transactions, a loan and a creation of bondage, will not accept his two nera; but whereas the older writers had never heard of the second nerum, 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 nearum-loan be justified? If not, we are thrown back upon the old choice between Niebuhr and Huschke. Lenel “brought two arguments against the existence of a nerum in the sense of a loan per aes et libram. 1. The identification of merum with mancipium in the Twelve Tables phrase, “ubi nearum facietmancipiumque.” He argued that the suffix -que instead of -ve shews that nearum mancipiumque represent one transaction. But, as Kubler and Kleineidam * simultaneously pointed out, -que and -re 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 nearum means om me quod per aes et libram geritur, or more narrowly mancipatio. To this argument there are two answers: first, that it takes no account of Mucius's weighty dissent in the Varro-passage, and secondly, that the later identification, by Cicero and others, of merum with mancipium is not a technical usage, but a popular usage centuries after the Lea Poetelia. These two points need devel. opment.
* Debray, N. R. H. 1910. pp. 521 ff. * Mitteis, ZSS. 22, p. 97: Festschrift f. Bekker (1907), pp. 100 f.: Privatrecht, 1, pp. 266 f. “Pflüger, Nerum und Mancipium (Leipzig, 1908). * Scheurl, Vom Nerum, 1839, cited by Pflüger, p. 97, n. 187. * ZSS. 23, pp. 84 ft. “ Kübler, ZSS. 25, pp. 254 f.; Kleineidam, Personalexekution. * See the preceding note. * Privatrecht, 1, pp. 136 ft. * Wissowa in Mitteis, Privatrecht, 1, 141, n. 16.
Mucius, Lenel admits, dissented from the current view, “nerum est omne quod per aes et libram geritur,” but he must be understood to have said that nearum denotes what is contained in an act per aes et libram in addition to (praeter quam squod] 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 nerum 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 nerum mancipiumque in the Twelve Tables describes one single transaction. But Kuhler and Kleineidam “ have both shewn the superiority of the older interpretation: “nerum 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) mantipations.”. 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,” to whom the nerum-loan is an awkward fact, who has observed that a technical usage of the word nerum is only preserved in the phrases nerum aes, neri datio and neri liberatio. Neari datio may refer to mancipation, but norum aes is defined by Festus as “pecunia quae per merum obligatur,” and neri liberatio (of Aelium Sallus in Festus) must be identical with the solutio per aes et libram of Gaius. It means freeing from nearum, not freeing by way of nerum." 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 of nerum refers to debt. I conclude that nearum-loan exists, though I admit that the later popular usage of the term nerum creates a difficulty which has not yet been satisfactorily explained. Thus to my first definite conclusion, that Mitteis’s two neira are impossible, I add a second, that the one nearum that exists is the nearum-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 nearum 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 nearum 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 merum. 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).
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 nerum mancipiumque refers to the fiduciary pledge of persons or things; merum, according to Mucius, standing for the contractual and mancipium for the conveyancing element. When the Ler Poetelia killed nerum mancipiumque of persons, nearum mancipiumque of things became the general name for a transaction per aes libram. Personnearum 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
* See the references, p. 8, n. 22. Huvelin combines a fiducia rv mancipation with a damnatio. Stintzing identifies nearum with mancipium, but distinguishes nearum mancipiumque from mancipatio. Kretschmar is for nearum a binding of operae enforceable by legis actio sacramento in personam. He gives an original interpretation of the Varro-passape.
* In this extreme form Schlossmann's doctrine is refuted by Kleineidam's citation of Twelve Tables 5, 9. in his Personalexekution, p. S9
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 manci. pation of things. But his theory of person-nerum 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 " 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 re. cently by Eisele.” I must content myself here with the most important. 1. Huschke had argued of nearum, because publicistic therefore executable by m. i. Mitteis “ complains that the con. ception “publicistic * is cloudy and ungrounded, and one can only agree. If indeed nearum 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 nerum is executable by m. i. is precisely what Mitteis " 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 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.” Kubler,” 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 testes práxeos ūuses ék te emou (the debtor) kai ek tón huparchóntón moi pántón kathaper ek dikes, 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 * 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.
* Supra, p. 147, n. 2.
* Supra, p. 141. * Studien zur röm. Rechtsgeschichte (Tübingen, 1912). * ZSS. 22, pp. 100-3: Eisele, Studien. pp. 1-8. * Mitteis, op. cit., p. 104.
(b) The second objection * to Huschke's is Gaius's treatment of m. i. Not merely is he silent about m. i. on nerum, 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 tudicato, in which case nearum 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 * pointed out that m. i. is the oldest legis a”., 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; nearum-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 indicato is the conception of a later age, when m. i. iudicati had become the type, and execution of a debt without judg
* Supra, p. 141. * Kübler, ZSS. 25, pp. 276 f. Swoboda, ZSS. 26, pp. 210 f. : Pflüger, Nerum und Mancipium, pp. 80 f.; Mitteis. ZSS. 29, p. 501; Mitteis-Wilcken, Papyruskunde (1912). 2, 1, 121 * Reichsrecht u. Volksrecht, pp. 419 ff. * Private Law, 2, p. 308. * Mitteis, op. cit., pp. 105-6. 8- ;Attorn 1, pp. 18 f.; cp. ZSS. 23, pp. 11 ff.: 30, pp. 15, 18-19.