Chapter XVIII: 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.

Walter (Geschichte des Römischen Rechts, sects. 583-715, 2d
ed.) calls in question the above explanation of Von Savigny, on
grounds which do not appear to me sufficient.

How long the feeling continued, that it was immoral and
irreligious to receive any interest at all for money lent, may be
seen from the following notice respecting the state of the law in
France even down to 1789:—

“Avant la Révolution Française (de 1789) le prêt à intérêt
n’était pas également admis dans les diverses parties du royaume.
Dans les pays de droit écrit, il était permis de stipuler
l’intérêt des déniers prêtés: mais la jurisprudence des parlemens
resistait souvent à cet usage. Suivant le droit commun des pays
coutumiers, on ne pouvait stipuler aucun intérêt pour le prêt
appelé en droit _mutuum_. On tenait pour maxime que l’argent ne
produisant rien par lui-même, un tel prêt devait être gratuit:
que la perception d’intérêts était une usure: à cet égard, on
admettait assez généralement les principes du droit canonique. Du
reste, la législation et la jurisprudence variaient suivant les
localités et suivant la nature des contrâts et des obligations.”
(Carette, Lois Annotées, ou Lois, Décrets, Ordonnances, Paris
1843; Note sur le Décret de l’Assemblée Nationale concernant le
Prêt et Intérêt. Août 11, 1789.)

The National Assembly declared the legality of all loans on
interest, “suivant le taux déterminé par la loi,” but did not
then fix any special rate. “Le décret du 11 Avril, 1793, défendit
la vente et l’achat du numéraire.” “La loi du 6 floréal, an III,
déclara que l’or et l’argent sont marchandises; mais elle fut
rapportée par le décret du 2 prairial suivant. Les articles 1905
et 1907 du Code Civil permettent le prêt à intérêt, mais au taux
fixé ou autorisé par la loi. La loi du 3 Sept. 1807 a fixé le
taux d’intérêt à 5 per cent. en matière civile et à 6 per cent.
en matière commerciale.”

The article on Lending-houses, in Beckmann’s History of
Inventions (vol. iii, pp. 9-50), is highly interesting and
instructive on the same subject. It traces the gradual calling in
question, mitigation, and disappearance, of the ancient antipathy
against taking interest for money, an antipathy long sanctioned
by the ecclesiastics as well as by the jurists. Lending-houses,
or Monts de Piété, were first commenced in Italy about the
middle of the fifteenth century, by some Franciscan monks, for
the purpose of rescuing poor borrowers from the exorbitant
exactions of the Jews: Pope Pius the Second (Æneas Silvius, one
of the ablest of the popes, about 1458-1464), was the first who
approved of one of them at Perugia, but even the papal sanction
was long combated by a large proportion of ecclesiastics. At
first, it was to be purely charitable; not only neither giving
interest to those who contributed money, nor taking interest
from the borrowers,—but not even providing fixed pay to the
administrators: interest was tacitly taken, but the popes
were a long time before they would formally approve of such a
practice. “At Vicenza, in order to avoid the reproach of usury,
the artifice was employed of not demanding any interest, but
admonishing the borrowers that they should give a remuneration
according to their piety and ability,” (p. 31.) The Dominicans,
partisans of the old doctrine, called these establishments
Montes _Impietatis_. A Franciscan monk Bernardinus, one of the
most active promoters of the Monts de Piété, did not venture to
defend, but only to excuse as an unavoidable evil, the payment
of wages to the clerks and administrators: “Speciosius et
religiosius fatebatur Bernardinus fore, si absque ullo penitus
obolo et pretio mutuum daretur et commodaretur libere pecunia,
sed pium opus et pauperum subsidium exiguo sic duraturum tempore.
Non enim (inquit) tantus est ardor hominum, ut gubernatores
et officiales, Montium ministerio necessarii, velint laborem
hunc omnem gratis subire: quod si remunerandi sint ex sorte
principali, vel ipso deposito, seu exili Montium ærario, brevi
exhaurietur, et commodum opportunumque istud pauperum refugium
ubique peribit.” (p. 33.)

The Council of Trent, during the following century, pronounced
in favor of the legality and usefulness of these lending-houses,
and this has since been understood to be the sentiment of the
Catholic church generally.

To trace this gradual change of moral feeling is highly
instructive,—the more so, as that general basis of sentiment,
of which the antipathy against lending money on interest is
only a particular case, still prevails largely in society and
directs the current of moral approbation and disapprobation. In
some nations, as among the ancient Persians before Cyrus, this
sentiment has been carried so far as to repudiate and despise all
buying and selling (Herodot. i, 153). With many, the principle
of reciprocity in human dealings appears, when conceived in
theory, odious and contemptible, and goes by some bad name, such
as egoism, selfishness, calculation, political economy, etc: the
only sentiment which they will admit in theory, is, that the man
who has, ought to be ready at all times to give away what he has
to him who has not; while the latter is encouraged to expect and
require such gratuitous donation.