Niebuhr's lectures on Roman history, Vol. 1 (of 3)Niebuhr, Barthold Georg
History
Niebuhr's lectures on Roman history, Vol. 1 (of 3)
Niebuhr, Barthold Georg
Rome -- History
_nexum_ every transaction was originally called, which by _traditio_
and by weighing out of money was done in the presence of witnesses, a
thing afterwards usual only in fictitious sales, and then significative
of a right of mortgage, by which in case of neglect of payment a
definite right of property was secured to the creditor. Frequently also
people were allowed to discharge their debt by work. An industrious
workman might advantageously dispose of his labour in times when there
was a great demand for it; if, for instance, a man, who had pledged
himself, had a son who was still in his full strength; the father
sold him to the creditor; and when the son had discharged the debt
by his work, he became again free of the _mancipium_ of his master.
Yet the interest accumulated at such a usurious rate, that it became
very difficult for a debtor who was poor to redeem himself; though,
if he worked as a _nexus_, he at least paid the interest. During such
a period of labour the master had full authority over him as over a
slave. That those who thus worked in payment of debts were a numerous
class, is expressly asserted by writers.
But there was yet another way in which bondage for debt arose. One
might also become a debtor without contract; as for instance, by
neglecting to pay a legacy, or should a tradesman work for me, and I
do not pay him; and again, if I commit a crime, I am bound in Roman
law to make amends to the injured party according to a fixed estimate,
_obligatio ex delicto_. All these relations constitute a second class
of liabilities, and in these cases there was addiction without _nexus_,
as was laid down in the twelve tables. The prætor sentences the thief
to give me double what he has stolen; and if the man does not pay it
by the appointed day, he addicts him to me as a bondman for debt. In
the same manner, if I sue any one for a purchase and he cannot deny
the debt (_æs confessum_), I demand his _addictio_ for a certain time.
This was a _vinculum fidei_, an intimidation, so that the debtor, of
course, strained every nerve to pay. To this only did the expression
_vinculum fidei_ refer, not to the _nexum_; as vindication was here
allowed, and there was no question about the fulfilment of a contract.
When a Roman was _in nexu_, having sold himself to another in the event
of his not paying, as the Merchant of Venice did to Shylock, he had to
pay the taxes on his freehold all the same, however heavily incumbered
it might be; for _nexo solutoque idem jus esto_, was the law of the
twelve tables. But quite different is the case of the addictus, who
is the creditor’s own, and has no personal rights. Thus we have the
solution of the enigma in the accounts given in our books, that debtors
who had sold themselves (that is to say, _nexi_) served notwithstanding
in the legions.[91] Livy does not enter into this subject, because he
was not conscious of the difficulty: Dionysius indeed remarks it, but
he is embarrassed by it.
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