Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/709

JUS CIVILE.] ROMAN LAW 685 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. 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 nothing of them beyond what was still in observance. That he has repro- duced 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 judg- ment or confession. 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 obtain authority to carry him away and provisionally confine him in the domestic lock-up. Such a course, however, was avoided either (1) by instant payment or other implement of the judgment, or (2) by the intervention of a vindex or champion. The position taken by the latter was not exactly that either of a surety or of an attorney for the judicatus demanding a rehearing of the case : he appeared rather as a con- troverter 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 necessitated 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 ; but on payment he had 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 alterna- tive being his sale as a slave beyond the Roman frontier. Accord- ing to this view a man sentenced to twenty-five asses for a petty assault, which he could not pay, might have to suffer death in- stead. Manifest theft was considered a greater offence, or at least to merit a heavier punishment, than non-manifest, slavery for the former, a pecuniary penalty for the latter ; but, if it had been the case that every judicahis who failed within three months to satisfy his creditor might be put to death, then the non-manifest thief against whom a judgment had been obtained must often in the end have suffered a penalty more serious than that which overtook him whose theft had been manifest, slavery for the graver offence, death for the lighter. Capite poenas dabat, therefore, cannot have meant death. But it is just as impossible that it can have meant slavery. And there is abundant evidence that the addif.tus, even after the completion of his two months of provisional detention, was still de jure free, that he was not capite minutus even as regarded citizenship or family rights, and that any property he had still remained his own. The only other explanation is that "he paid the penalty with his person," in contradistinction to "his means. " Caput is used in opposition to bona. Under the law of the Tables, when the manus injectio was at the instance of one creditor only, the extent of the latter's right was to detain his debtor in free bondage, making what use he could of his services, and exercising discipline over him as if he were a slave. But for the mistaken notion that a creditor was entitled after the expiry of the three months to put his debtor to death of which there is not a single instance on record it is unlikely that any one would have thought of imputing to the partis secanto such an inhuman meaning as that a plurality of creditors might cut the body of their addictus in pieces and each take a share. The opinion is entertained by many jurists that the 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. There are two difficulties to face, (1 ) that, once a debtor was in the hands of a creditor, even provisionally, manus injectio by a second creditor was impossible ; and (2) that the debtor's estate did not fall within the power of the incarcerat- ing creditor. The first is removed by a suggestion of Voigt's, that the plurality of creditors Gellius speaks of may have referred to the case of co-heirs taking proceedings against a debtor of their ancestor's. The second disappears on a slight rearrangement of the words of the Tables as Gellius records them. 1 The result to 1 Reconstructions are always hazardous. But, on the footing above explained, the provision of the Tables may have been something like which it brings us is this : where there was but one creditor con- cerned, and the two months of provisional detention expired with- out payment, or intervention of a vindex, or compromise of some sort, the debtor definitively became his creditor's free bondman in virtue of the magisterial addictio ; but, where co-heirs were con- cerned, as bondage and service to all of them would have been inconvenient if not impossible when they were not to continue to possess the inheritance in common, the debtor was sent across the Tiber and sold as a slave, and the price got for him divided among them. If one or other got more than his fair share, no harm was done ; for the disproportion could eventually be redressed in an action of partition (actio familiae erciscundae). The disgraceful cruelties and indignities to which credi- tors subjected both their judgment and nexal debtors led 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 Pcetilian law of 428 were meant to protect them against the needless and unjustifiable severity that had characterized their treatment. The manus injectio itself was not abolished, nor the possible intervention of a vindex ; neither were the domum duetto that followed, and the provisional imprisonment with the light chains, authorized by the Tables while it lasted ; nor 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 647 u.c. provided a creditor with machinery for attacking the estate of his debtor, he had still the alternative of incarceration. This might be avoided under the Julian law of cessio by the debtor's making a complete surrender of his goods to his creditor ; but, failing such surrender, incarceration continued to be resorted to even under the legislation of Justinian. Latterly, however, it was not by manus injectio that the incarceration was effected ; for it went out of use with the definitive establishment of the formular system of procedure. It was as directed against judgment and nexal debtors (see infra, p. 693) that manus injectio was of most importance and chiefly made its mark in history. But there were other cases in which it was resorted to under special statutory authority, where a remedy seemed advisable more sharp and summary than that by ordinary action. In some of these it was spoken of as manus injectio pro judicato (i. e. , as if upon a judgment), in others as simple manus injectio (manus injectio pura). In the first the arrestee was not allowed to dispute his alleged indebtedness in person ; he could do so only through a vindex ; and if no one intervened for him in that character he was carried off and dealt with by his arresting creditor as if a judgment had been obtained against him. In the second he was not required to find a vindex, but might himself dispute the verity of the charge made against him, under penalty, however, of a duplication of his liability if he failed in his contention. By a Lex Vallia, probably in the latter half of the 6th century of the city, this manus injectio pura was substituted for that pro judicato in all cases in which the ground of arrest was neither judgment nor depensum, i. e. , payment by a surety or other party on account of the true debtor, who failed to relieve the former within six months thereafter. The Legis Actio per Pignoris Capionem. 2 In the ritual this: "Tertiis nundinis addicitor. Capite poenas dato. Si plures sunt, trans Tiberim peregre venum danto, partis secanto. Si plus minusve secuerunt, se fraude esto " "On the third market-day there shall be decree of addiction. The addictus shall then pay the penalty with his person. If there be several creditors to whom he is awarded, let them sell him beyond Tiber and divide the price. If any of them have got more or less than his fair share, no harm shall result." 2 To the literature on p. 681, note 1, add Degenkolb, Die Lex Hiero-