APPENDIX.
The explanation which M. von Savigny gives of the Nexi and Addicti under the old Roman law of debtor and creditor (after he has refuted the elucidation of Niebuhr on the same subject), while it throws great light on the historical changes in Roman legislation on that important subject, sets forth at the same time the marked difference made in the procedure of Rome, between the demand of the creditor for repayment of principal, and the demand for payment of interest.
The primitive Roman law distinguished a debt arising from money lent (pecunia certa credita) from debts arising out of contract, delict, sale, etc., or any other source: the creditor on the former ground had a quick and easy process, by which he acquired the fullest power over the person and property of his debtor. After the debt on loan was either confessed or proved before the magistrate, thirty days were allowed to the debtor for payment: if payment was not made within that time, the creditor laid hold of him (manûs injectio) and carried him before the magistrate again. The debtor was now again required either to pay or to find a surety (vindex); if neither of these demands were complied with, the creditor took possession of him and carried him home, where he kept him in chains for two months; during which interval he brought him before the prætor publicly on three successive nundinæ. If the debt was not paid within these two months, the sentence of addiction was pronounced, and the creditor became empowered either to put his debtor to death, or to sell him for a slave (p. 81), or to keep him at forced work, without any restriction as to the degree of ill usage which might be inflicted upon him. The judgment of the magistrate authorized him, besides, to seize the property of his debtor wherever he could find any, within the limits sufficient for payment: this was one of the points which Niebuhr had denied.
Such was the old law of Rome, with respect to the consequences of an action for money had and received, for more than a century after the Twelve Tables. But the law did not apply this stringent personal execution to any debt except that arising from loan,—and even in that debt only to the principal money, not to the interest,—which latter had to be claimed by a process both more gentle and less efficient, applying to the property only and not to the person of the debtor. Accordingly, it was to the advantage of the creditor to devise some means for bringing his claim of interest under the same stringent process as his claim for the principal; it was also to his advantage, if his claim arose, not out of money lent, but out of sale, compensation for injury, or any other source, to give it the form of an action for money lent. Now the nexum, or nexi obligatio, was an artifice—a fictitious loan—whereby this purpose was accomplished. The severe process which legally belonged only to the recovery of the principal money, was extended by the nexum so as to comprehend the interest; and so as to comprehend, also, claims for money arising from all other sources (as well as from loan), wherein the law gave no direct recourse except against the property of a debtor. The debitor nexus was made liable by this legal artifice to pass into the condition of an addictus, either without having borrowed money at all, or for the interest as well as for the principal of that which he had borrowed.
The Lex Pœtelia, passed about B. C. 325, liberated all the nexi then under liability, and interdicted the nexi obligatio forever afterwards (Cicero, De Republ. ii, 34; Livy, viii, 28). Here, as in the seisachtheia of Solon, the existing contracts were cancelled, at the same time that the whole class of similar contracts were forbidden for the future.
But though the nexi obligatio was thus abolished, the old stringent remedy still continued against the debtor on loan, as far as the principal sum borrowed, apart from interest. Some mitigations were introduced: by a Lex Julia, the still more important provision was added, that the debtor by means of a cessio bonorum might save his person from seizure. But this cessio bonorum was coupled with conditions which could not always be fulfilled, nor was the debtor admitted to the benefit of it, if he had been guilty of carelessness or dishonesty. Accordingly, the old stringent process, and the addiction in which it ended, though it became less frequent, still continued throughout the course of Imperial Rome, and even down to the time of Justinian. The private prison, with adjudicated debtors working in it, was still the appendage to a Roman money-lender’s house, even in the third and fourth centuries after the Christian era, though the practice seems to have become rarer and rarer. The status of the addictus debitor, with its peculiar rights and obligations, is discussed by Quintilian (vii, 3); and Aulus Gellius observes: “Addici namque nunc et vinciri multos videmus, quia vinculorum pœnam deterrimi homines contemnunt,” (xx, 1.)
If the addictus debitor was adjudged to several creditors, they were allowed by the Twelve Tables to divide his body among them. No example was known of this power having been ever carried into effect, but the law was understood to give the power distinctly.
It is useful to have before us the old Roman law of debtor and creditor, partly as a point of comparison with the ante-Solonian practice in Attica, partly to illustrate the difference drawn in an early state of society between the claim for the principal and the claim for the interest.
See the Abhandlung of Von Savigny in the Transactions of the Berlin Academy for 1833, pp. 70-103; the subject is also treated by the same admirable expositor, in his System des heutigen Römischen Rechts, vol. v, sect. 219, and in Beilage xiv, 10-11 of that volume.
The same peculiar stringent process, which was available in the case of an action for pecunia certa credita, was also specially extended to the surety, who had paid down money to liquidate another man’s debt; the debtor, if solvent, became his addictus,—this was the actio depensi. I have already remarked in a former note, that in the Attic law, a case analogous to this was the only one in which the original remedy against the person of the debtor was always maintained. When a man had paid money to redeem a citizen from captivity, the latter, if he did not repay it, became the slave of the party who had advanced the money.