assessed the damages himself and as a matter of course—that the
instruction to him was quanti res erit, tantam pecuniam condemnato.
The Legis Actio per Manus Injectionem.[1]—This “action of the law” was ordinarily employed as a means of execution Per manus injectionem. against the body of a judgment-debtor or one who had confessed liability in the first stage of a process. But, in certain cases, it is conjectured, it was thought proper that a creditor should have a more summary remedy than was afforded by a sacramental action or one per judicis postulationem, and he was allowed to apprehend his debtor without any antecedent judgment or confession; in which cases, if the debtor disputed liability, the question could be tried only in proceedings at his instance, or sometimes at that of a third party on his behalf, for a stay of execution. It will simplify matters, however, to confine our attention to it in the meantime as a means of execution against the body of a judgment-debtor.
Gaius's description of it is very general; for details we are indebted principally to the Noctes Atticae of Aulus Gellius, in an account which he gives (put into the mouth of Caecilius Africanus, a well-known jurist of about the same time as Gaius, and a contemporary of his own) of the provisions of the XII. Tables in reference to it. Africanus is made to say that according to his belief (opinor) the words of the statute were these: “For admitted money debts and in causes that have been regularly determined by judgment (aeris confessi rebusque jure judicatis) there shall be thirty days' grace. After that there may be manus injectio. The apprehending creditor shall then bring his debtor before the magistrate. If he still fail to satisfy the judgment, and no vindex come forward to relieve him, his creditor may carry him home and put him in chains. He may live at his own cost; if not, his creditor must give him daily a pound of spelt, or more if he please.” Africanus continues narrativé: “There was still room for the parties to come to terms; but, if they did not, the debtor was kept in chains for sixty days. Towards the end of that time he was brought before the praetor in the comitium on three consecutive market-days, and the amount of the judgment-debt proclaimed on each occasion. After the third proclamation capita poenas dabat”—what these words mean will be considered in the sequel—“or else he was sent across the Tiber to be sold to a foreigner. And this capital penalty, sanctioned in the hope of deterring men from unfaithfulness to their engagements, was one to be dreaded because of its atrocity and of the new terrors with which the decemvirs thought proper to invest it. For, if it was to more creditors than one that the debtor had been adjudged, they might, if they pleased, cut up and divide his body. Here are the words of the statute—‘Tertiis nundinis partis secanto. Si plus minusve secuerunt, se fraude esto.’ ”
Such is Gellius's account of the provisions of the XII. Tables in reference to this legis actio, and he is to a considerable extent corroborated by Quintilian, Tertullian and Dio Cassius. But it is to be borne in mind that he does not vouch for its accuracy; the Tables were already in his time matter of antiquity, and even the jurists knew little about them beyond what was still in observance. That he has reproduced them only partially seems almost beyond question; for in another chapter he himself quotes a couple of sentences that are to all appearance from the same context. We have to face, therefore, the extreme probability that the record is incomplete and the possibility besides that it is not literally accurate. There is room for error, consequently, in two directions; but the nature and effect of the procedure in its main features may be gathered from the texts as they stand with reasonable certainty.
It was competent only after thirty days from the date of judgment or confession.[2] It was apprehension of the debtor by the creditor himself,—in its first stage, at least, an act of pure self-help. The debtor had at once to be brought before the magistrate, in order that his creditor might solemnly go through the required formalities before he could carry him away and provisionally confine him in the domestic lock-up. It was this appearance before the magistrate that made it a legis actio. Such a course, however, was avoided either (1) by instant payment or other implement of the judgment or arrangement with the creditor, or (2) by the intervention of a vindex or champion. The position taken by the latter was not that either of a surety or of an attorney for the judicatus demanding a rehearing of the case: he appeared rather as a controverter in his own name of the right of the creditor to proceed further with his execution, on the ground that the judgment was invalid. This might necessitate an action between the vindex and the creditor, in which the former was plaintiff, but to which the debtor was not a party. If it failed, then the vindex was liable for double the amount of the original debt, as a penalty on him for having improperly interfered with the course of justice; his interference was treated as a delict, but on payment he had presumably relief against the original debtor who had been liberated through his intervention. Failing a vindex and failing payment, the creditor took his debtor home and incarcerated him, dealing with him for sixty days in the manner above described. On their expiry, without any arrangement, there was a magisterial decree (addictio) awarding the debtor to his creditor.
What right did this addictio confer upon the creditor? The debtor, says Gellius, “capite poenas dabat,” which he interprets as meaning that his creditor might put him to death, the alternative being his sale as a slave beyond the Tiber. There is, however, a diversity of opinion among the modern writers as to the true meaning of these words. While some hold, and rightly it is thought, that the Gellian interpretation is correct, others object to it as extravagant. It is objected to by Muirhead on the ground, inter alia, of its incredible severity in the case of petty debtors. He holds that capite poenas dabat meant simply that the debtor “paid the penalty with his person,” in contradistinction to “his means.” Caput is thus merely used in opposition to bona. Even more numerous are the writers who object to Gellius's statement that the body of the addictus when killed might be cut in pieces where there were several creditors. They hold that the words partis secanto of the Tables referred not to the body but to the belongings of the debtor,—that when there were concurrent creditors they shared his familia amongst them.[3] But these views are, it is thought, somewhat fanciful refinements. Poena capitis always implies either death, slavery or deprivation of citizenship; there is nothing more astonishing in a creditor's right to kill his debtor than in a father's right to kill his child; and comparative law gives many instances, of a parallel kind, of the harshness of primitive law to defaulting debtors. The partir secanto was probably a relic of earlier times, and Gellius admits that he never heard or read of a dissection having taken place.
The cruelties and indignities to which creditors subjected both their judgment and nexal debtors led, as above noticed, to many a commotion in the first two centuries of the Republic. The latter were probably much more numerous than the judicati, and, being in great part the victims of innocent misfortune, it was the sufferings they endured at the hands of relentless creditors that so often roused the sympathies and indignation of the populace. But the judgment-debtors had suffered along with them; and some of the provisions of the Poetilian law of 326 B.C., already mentioned, were meant to protect the former against the needless and unjustifiable severity that had characterized their treatment by their creditors. The manus injectio itself was not abolished, nor the possible intervention of a vindex; neither were the domum ductio that followed, and the provisional imprisonment with the light chains, authorized by the Tables while it lasted; nor apparently was the formal addictio of the debtor to his creditor when the sixty days had expired without arrangement. But after addiction, if it was for nothing more than civil debt, there were to be no more dungeons and stripes, fetters and foot-blocks; the creditor was to treat his debtor and his industry as a source of profit that would in time diminish and possibly extinguish his indebtedness, rather than as an object upon which he might perpetrate any cruelty by way of punishment. Although the edict of P. Rutilius of 107 B.C. provided a creditor with machinery for
- ↑ To the literature on p. 548, note 1, may be added Huschke, Nexum (1846), pp. 79 seq.; Savigny, “Das altröm. Schuldrecht,” in his Verm. Schriften (1850), ii. 396 seq.; Hoffmann, Die Forcten u. Sanaten, nebst Anhang über d. altröm. Schuldrecht (Vienna, 1866), pp. 54 seq.; Vainberg, Le nexum et la contrainte par corps en droit Rom. (Paris, 1874), pp. 36 seq.; Voigt, XII. Tafeln, vol. i. §§ 63-65; Jhering (as on p. 548), pp. 196 seq., 232 seq.; Cuq, Institutions juridiques, 2nd ed. i. 141 seq.; Schlossmann, Altrömisches Schuldrecht (1904); Kleineidam, Personalexekution der XII. Tafeln (1904).
- ↑ In his Historical Introduction, 2nd ed. pp. 192-193, Muirhead maintains that the “aeris confessi” of the Tables refers to nexal debtors, but this view has, it is thought, insurmountable objections to overcome.
- ↑ For a fuller explanation, see Muirhead, Hist. Introduction, 2nd ed. pp. 198 seq., and authorities there cited. See also Kleineidam, Personalexekution, pp. 235 seq. Lenel must be added to those writers who think that “partis secanto,” &c., refers to the goods of the debtor (Zeitschr. d. Sav. Stift. xxvi. pp. 507-509).
