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]