Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/718

Rh 694 ROMAN LAW [JUS CIVILE. protection, even before the conventional term of repayment, that the debtor was in bonds, virtually a pledge, from the very first, and the tightness or looseness of them a matter in the discretion of his creditor. 1 Voigt holds that the nexum did not give the creditor any peculiar hold over his debtor, and that on the latter's failure to repay an ordinary action was necessary, to be followed by the usual proceedings in execution if judgment was in favour of the former. These views may be said to be the two extremes ; and be- tween them lie a good many others, more or less divergent. The difficulty of arriving at a conclusion is caused to some extent by the ambiguity of the words nexus and nexum. The transaction itself was called nexum ; the money advanced was nexum aes (hence nexi, i.e., aeris datio) ; the bond was nexus (of the fourth declension); .and the debtor on whom the bond was laid was also nexus (of the second). All this is simple enough. But we find the same word nexus employed by the historians as almost synonymous with vinctus, to denote the condition of a debtor put in fetters by his creditor. That might be the condition either of a nexal borrower or of an ordinary judgment-debtor. The former in such a case was doubly nexus ; he was at once in the bonds of legal obligation and in those of physical constraint. In many passages in which Livy and others speak of the nexi it is extremely difficult, sometimes impossible, to be sure in which sense they use the word. It is therefore not sur- prising that there should be considerable diversity of opinion on the subject, and such frequent identification of the legal status of a nexal debtor (nexus) with that of a judgment-debtor (Jiuiicatus). Almost all writers Voigt 2 is a distinguished exception concur in opinion that the nexal contract entitled the creditor, after expiry of thirty days from the conventional date of repayment of the loan, to proceed against his debtor by manus injectio without any ante- cedent action or judgment, and failing settlement to detain him, and put him to servile labour and subject him to servile treatment, until the loan was repaid. The parallel of such a course is to be met with amongst all ancient nations, Jews, Greeks, Scandinavians, Germans, &c. 3 And it was not altogether unreasonable. If a borrower had already exhausted all available means of raising money, had sold or mortgaged everything he possessed of any value, what other course was open to him in his necessity except to im- pledge himself ? That the creditor should have been entitled to realize the right he had thus acquired without the judgment on it of a court of law is equally intelligible: The nexal contract was a public act, carried out in the presence of the representatives of the people, who w^re witnesses alike of the acknowledgment of indebted- ness and of the tacit engagement of the debtor. The only valid ob- jection that could be stated against the creditor's apprehension of his debtor in execution was that the indebtedness no longer existed, that the loan had been repaid. But a nexal debt could be legally discharged only by nexi liberatio, which also was a solemn proce- dure per aes et libram in the presence of five citizen witnesses. What need for a judicial inquiry in the presence of facts so notorious ? A creditor would rarely be daring enough to proceed to mamis injectio if his loan had been repaid ; if he did, the testimony of the wit- nesses to the discharge would at once procure the release of his alleged debtor. It was probably to give opportunity for such proof, if there was room for it, that the XII. Tables required that a creditor who had apprehended a nexal debtor should bring him into court before carrying him off into detention. But there was no room for the intervention of a vindex or cham- pion, for there was no judgment whose regularity he could impugn. Nor was there any room for a magisterial addictio of the debtor to his creditor ; for the latter's right of detention was founded on contract, and needed no decree to strengthen it. The creditor was entitled at once, after apprehension of his debtor and production of him in court in terms of the statute, to carry him home with him, take such steps as were necessary to ensure his safe custody, and employ his services in profitable industry. But that he could kill him or sell him, as some suppose, is a proposition that is destitute of any authority to support it. Equally untenable is the notion 1 Brinz, in Griinhut's Zeitschr., voL i. p. 22. He likens the position of the nexus to that of a thing land, say mortgaged to a creditor in security of a claim. Such security the Roman jurists constantly speak of as res obligata, and sometimes as res nexa. As Briuz observes, the thing was obligata from the first, and continued so as long as the debt it secured was unpaid, even though the creditor found it unnecessary to reduce it into possession or interfere with it in any way. 2 He holds that there was nothing peculiar in the obligation created nexo, i.e., that it did not impose any immediate liability on the borrower which the lender could enforce without judicial intervention, but that the latter required to proceed against the former in ordinary course, by what he calls an actio pecuniae nuncupates. 8 See authorities in Brinz's paper in Grunhut's Zeitschr., voL i. p. 25. The Greek phrase was tirl ffufian Bavtifciv. There is a curious style in Marculfus (Form., ii. 27), in which a borrower engages that, until he shall have repaid his loan, his creditor shall have right to his services so many days a week, and shall have power to inflict corporal punishment if there be dilatoriuess in rendering them. that the nexus became a slave, or that, while retaining his freedom, his wife, children, and belongings fell with him into the hands of his creditor. He certainly was not in a worse position than an addictus, of whom Quintilian states distinctly that he still retained his position in the census and in his tribe. Many a time, when the exigencies of the state required it, were the nexi temporarily released in order to obey a call to arms, to fulfil the duty incumbent on them as citizens. In fact a nexal debtor suffered no capitisdcntin- utio at all because of his detention. If he was a house-father he still retained his manus over his wife and potestas over his children. But they did not share his quasi-servitude. Their earnings legally belonged to him, but were no doubt retained by them with his consent for their own support. They certainly did not fall to his creditor. It was the body of his debtor that he was entitled to, and too often he wreaked his vengeance on it by way of punishment ; there was as yet no machinery for attaching the debtor's goods in substantial reparation for the loss caused by his breach of contract. The abuses to which the system gave rise alike in the case of Fcetili nexal and of judgment debtors have already been alluded to. In the law. year 428 a more than ordinarily flagrant outrage committed by a creditor upon one of his young nexi, who, Livy says, had given himself up as responsible for a loan contracted by his deceased father, roused the populace to such a pitch of indignation as to necessitate instant remedial legislation. The result was the Pce- tilian law (Lex Poetilia Popm'a). So far as can be gathered from the meagre accounts of it we possess, it contained at least these three provisions (1) that fetters and neck, arm, or foot blocks should in future be applied only to persons undergoing imprisonment for crime or delict ; (2) that no one should ever again be the nexus of his creditor in respect of borrowed money ; and (3) that all existing nexi qui bonam copiam jurarent should be released. The first was intended to prevent unnecessary restraint upon judgment-debtors formally given over to their creditors. The second did not neces- sarily abolish the contract of loan per aes et libram, but only what had hitherto been an ipso jure consequence of it, the creditor's right to incarcerate his debtor without either the judgment of a court or the warrant of a magistrate. For the future, execution was to be done against a borrower only as a judgment-debtor form- ally made over to his creditor by magisterial decree, and under the restrictions and limitations imposed by the Pcetilian law itself. This very soon led to the disuse of nexal obligation ; once it was deprived of its distinctive processual advantages it rapidly gave place to the simpler engagement by stipulation enforceable per con- dictionem. As for the release of the then existing nexi, Cicero, Livy, and Dionysius say nothing of any condition annexed to the boon the statute conferred upon them ; it is only'Varro who limits it to those qui bonam copiam jurarunt, those apparently who were able to declare on oath that they had done their best and could do no more to meet their creditors' claims. Such a limitation can hardly be called unreasonable, even were we to assume as prob- ably we ought to do that the release spoken of was only from the bonds of physical restraint, not from those of legal obligation. Introduction of the Stijmlation^ Few events in the Stipu history of the private law were followed by more far- 11 ' reaching consequences than the introduction of the stipu- lation. It exercised an enormous influence on the law of contract ; for by means of it there was created a unilateral obligation that in time became adaptable to almost every conceivable undertaking by one man in favour of another. By the use of certain words of style in the form of ques- tion and answer any lawful agreement could thereby be made not only morally but legally binding, so that much which previously had no other guarantee than a man's sense of honour now passed directly under the protection of the tribunals. Stipulations became the complement of engagements which without them rested simply on good faith, as when a vendor gave his stipulatory promise to his vendee to guarantee peaceable possession of the thing sold or its freedom from faults, and the vendee in turn gave his promise for payment of the price. The question and answer in the form prescribed by law made the en- gagement fast and sure. Hence the generic name of the 4 Literature : Liebe, Die Stipulation u. das einfache Versprechen, Brunswick, ] 840 ; Schmidt (rev. Liebe), in Richter's Krit. Jakrb,, vol. v. pp. 869 sq., 961 sq. ; Gneist, Die formellen Vcrtrage d. riim. Rechts, Berlin, 1845, p. 113 sq. ; Heimbach, Die Lehre row Creditum, Leipsic, 1849 ; Danz, Der sacrale Schutz im riim. Rechte, Jena, 1857, pp. 102-142, 236 sq. ; Schlesinger, Zur Lehre von den Formalcontradcn, Leipsic, 1858, 2 ; Voigt, Jus nat., d-c., d. Rom., vol. ii. 33, vol. iv., Beilage xix. ; Girtanner, Die Stipulation, Kiel, 1859 ; Bekker, Aktionen, vol. i. pp. 382-401 ; Karsten, Die Stipulation, Rostock, 1878.