conveyance, was a ceremony per aes et libram, and the interest of the matter for Maine lay in the way in which a rudimentary distinction was established between the two. Does contract derive from conveyance, or is it impossible to conceive of conveyance except in opposition to contract, so that the two ideas must develop together?

The origin of the idea of obligations arising from wrong is well known. We start with self-redress or vengeance, which is gradually regulated, and we pass by observable stages through voluntary to compulsory composition. Here the Roman sources agree with the results of comparative law. But the origin of obligations arising out of agreement is not so simple. In other systems of law it has been. traced to some extent to the practice of giving hostages or guarantors for blood-money. This develops into a system of self-guarantee, and so of direct conventional liability of the principal debtor, taking sometimes the form of a self-pledge or of a conditional self-sale by the debtor. One of the questions which we must ask to-day is whether these analogies will unlock the riddle of early nexum.

I must deal first with our sources. The historians 5 raise the problem as I have put it-aes alienum leading to bondage but that is their main contribution.

It is impossible to infer a consistent picture of legal details from Livy or Dionysius, particularly from Livy. The legal form of the matter was not their chief interest, and if it had been, their account of it would not have commanded great confidence. The other sources emanate from men who at any rate were accustomed to think juristically; but to all the sources alike applies the reflection that they were written centuries after the abolition of nexum in its primitive form.

These other sources consist of one passage of Varro, three of Festus, a number from Cicero, one of Gaius, one

5 The passages in Livy are fully set out in Roby, Private Law, 2 pp. 297 ff. 7, and so are readily accessible to English readers. The passages in Dionysius are most fully set out by Kleineidam, Die Personalexekution der Zwolftafeln. Breslau, 1904, pp. 62 T., viz. 4, 9. 11. 5. 53. 64. 69. 6, 23. 24. 26. 29. 37. 41. 46. 58. 59 76. 79. 82. 83. 16, 5.

"De L. L., 7, 105.

Festus, p. 173, s. v. nuncupata; p. 165, s. V. nexum and

Nexum ୦୧୫.

See Roby. Private Law, 2, pp. 304-5.

9

Gaius, 2, 27 provincialis soli nexum non esse.'

of Frontinus,10 one of Boethius "at first sight a formidable array. But the list includes every known passage in which the word nexum bears a technical sense before it fades into a general term for obligation in the Digest and the Codes. Only one passage in Cicero (De Repub. 2, 59) refers directly to our nexum, that already quoted in which he describes its abolition. According to the ordinary Ciceronian usage, like that of Gaius, Frontinus, and Boethius, nerum means simply the conveyance per aes et libram. In short, in these authors nexum is equivalent to mancipation.

This usage of the word may indeed be highly significant, but at any rate it reduces the bulk of our authorities. There remain the one passage of Varro and the three of Festus.

14

Varro, de L. L. 7. 105, "Nexum, Manilius 12 scribit omne quod per libram et aes geritur, in quo sint mancipia. Mucius quae per aes et libram fiant ut obligetur 18 praeter quom mancipio detur. Hoc verius esse ipsum verbum ostendit, de quo quaeritur, nam id aes,15 quod obligatur per libram, neque suum fit, inde nexum vocatur. Liber qui suas operas in servitutem pro pecunia quam debebat dabat1 dum solveret, nexus vocatus, ut ab aere obaeratus.18 Hoc C. Poetelio Libone Visolo dictatore sublatum ne fieret; et omnes, qui bonam copiam iurarunt, ne essent nexi, dissoluti.”

17

Here we have definitions of the transaction of nexum by Manilius (probably the consul of 149 B.C. and according to Pomponius one of the founders of the civil law) and by Mucius (who is probably the celebrated Q. Mucius Scaevola, consul 95 B.C.). To these definitions is appended a description of the man nexus which I have already quoted. Though the whole passage is of fundamental importance, its cogency is much impaired by the state of the text, difficulties of interpretation, and the fact that even Manilius and Mucius are not very good authorities for an institution as it existed before 326 B.C.

10 Ed. Lachmann, p. 36, Stipendiarii nexum non habent,'
11 Orelli, p. 322.

12 Ms. Mamilius.

The text given follows Mommsen, Zeitschr. d. Sav.-Stift, Rom. Abt. (=ZSS.), 23. p. 349, n. 1, and p. 354, n. See also Kretschmar, ZSS. 30, pp. 61-4.

3.

13 MS. obligentur.

14 MS. quam.

The emendation is not strictly necessary.

15 MS. idem. Mommsen 1. c. conj. aes; generally accepted.

16 MS. omits dabat.

17 MS. vocatur.

18 MS. obaeratus. Mommsen's conj. obseratus (1. c.) is very tempting, but it appears to have passed unnoticed.

The Festus passages are hardly less important.

Festus, p. 173, "Nuncupata pecunia est, ut ait Cincius in L. H de officio iuris consulti, nominata, certa, nominibus propriis pronuntiata: cum nexum faciet mancipiumque, uti lingua nuncupassit, ita ius esto. Ita uti nominavit locutusve erit, ita, ius esto." We are in the habit of referring the saw

cum nexum faciet," &c., to the Twelve Tables, and if this ascription is correct, we have here by far the oldest mention of nexum.

Festus, p. 165, “Nexum est, ut ait Gallus Aelius, quodcunque per aes et libram geritur, id quod necti dicitur; in quo genere sunt haec: testamenti factio, nexi datio, nexi liberatio." The jurist Aelius Gallus here confirms and somewhat extends the contemporary Ciceronian usage.

Festus, p. 165, "Nexum aes apud antiquos dicebatur pecunia quae per nexum obligatur." No authority is given. for this remarkable statement. Festus himself belongs to the second or third century, B. C., but his work was abstracted from that of the Augustan Verrius Flaccus, who in turn depended upon Varro.

In this state of the sources we have a fertile ground for hypotheses. There is just enough to make us speculate, too little to give us proof. And therefore we are not concerned with a question of right or wrong, truth or untruth, but of probable or less probable. The rival possibilities may even be found to be pretty equally balanced. At any rate it is too late for new suggestions, every possible view has been represented, and our duty is chiefly one of critical appreciation.

II. NIEBUHR AND HUSCHke.

The nineteenth century bequeathed to us two principal theories of nexum, that of Niebuhr 19 and that of Huschke.20 Indeed, in the last quarter of the century, this volcanic controversy assumed a delusive appearance of extinction, since the Huschkeian theory, in a modified form, received almost universal acceptance.21 But adhesions must be weighed as

12 Röm. Gesch., 1, pp. 322 ff. (Berlin, 1853).

2 Uber das Recht des Nerum. Leipzig, 1846.

A long list of Huschke's followers is given by Senn, Nouvelle Revue Historique (= N. R. H.), 1905, p. 52, n. 4.

well as counted, and Niebuhr continued to have weighty adherents.22

In 1901 Mitteis opened the twentieth-century controversy by an attack on the Huschkeian theory, which met with great success; but the new theory, quite distinct from Niebuhr's, which he suggested in its place, appears to have found few if any supporters.2

23

Of those who accept Mitteis's negative argument against Huschke, Mommsen reiterates the old alternative of Niebuhr, while the others, e.g., Lenel, Stintzing, and Pfluger, solve the problem in a totally novel way. But others again, e.g., Bekker, Kübler, Senn, Girard, Eisele, still cling to the Huschkeian view. Consideration of space will oblige me to refer very briefly to the highly original hypotheses of Schlossmann.

Let us first understand the nineteenth-century solutions. According to Niebuhr the borrower sold himself by a mancipation in the usual form to the lender, the sale being subject to two conditions which made it substantially a pledge, a suspensive condition-the mancipation was not to take effect till default in payment, and a resolutive condition-dum solveret, the mancipation is destroyed by payment. This transaction is called nexum, and the debtor thus conditionally the property of the creditor is called nexus.

Besides the analogy of the German self-sale there is much. that favours this view. In the first place a certain a priori plausibility. We start with sale as an ultimate conception, and we derive from it a transaction whose operation is in

Stintzing, Nexum Mancipiumque und Mancipatio, p. 7, n. 4, and p. 8. n. 1, cites Brinz, Pandekten, 2, p. 12; Kuntze, Cursus, s. 138, and Obligationen, s. 5; Horten, Personalexekution, 2. pp. 18 ff. "Cp. Costa, Diritto Romano Privato. p. 332, n. 2. In chronological order: Mitteis, ZSS. 22, pp. 96 ff. Roby, Private Law, 2, pp. 296 ff. (Cambridge, 1902); Bekker. ZSS. 23. pp. 11 ff., 429-30; Lenel, ibid., pp. 84 ff.; Mommsen, ibid., pp. 348 ff.; Naber. Mnemosyne, 31, pp. 214-16; Schlossmann, Altrömisches Schuldrecht, &c. (Leipzig, 1904); Kübler, Wochenschr. f. klass. Philol. 1904 pp. 175-83, 206-12; Schlossmann, Nerum (Leipzig, 1904): Kübler. Wochenschr. f. klass Philol. 1904, pp. 764-72; Kübler, ZSS. 25. pp. 254 ff.; Mitteis, ibid., pp. 282-3: Kleineidam, Die Personalexekution der Zwölftafeln (Breslau, 1904): Huvelin, Nerum ou Nerus. Daremberg-Saglio; Senn. N. R. H., 1905, pp. 49 ff.; Swoboda, ZSS. 26, pp. 219 ff.: Stintzing, Nerum Mancipiumque und Mancipatio (Leipzig, 1907); Mitteis. Römisches Privatrecht, 1, pp. 136 ff. (Leipzig, 1908): Pflüger. Nerum und Mancipium (Leinzig, 1908): Kretschmar. ZSS. 29. pp. 227 ff.; ZSS. 30. pp. 62 ff.; Bekker. ZSS. 30, pp. 30 ff.; Girard. Manuel, pp. 478 ff. (Paris, 1911): Eisele. Studien zur röm. Rechtsgeschichte (Tübingen, 1912). Pacchioni, Mélanges Girard, 2, pp. 319 ff. (Paris, 1912). came to my notice too late to affect this lecture.

personam only because the person is treated as a thing; an intelligible transition from conveyance to contract. And secondly, if nexum was a modified mancipation, we can understand why later speech made nexum synonymous with mancipation.

Against such arguments must be set the weighty objections of Savigny,24 that a self-mancipation is entirely unknown to Roman law; that a conditional mancipation is against all principle; and that the supposition of a fiducia or trust imposed upon the creditor is of no assistance, since the person presumably entitled to enforce it, i.e., the debtor, would be in the creditor's power, in whom therefore his right of action would be merged.

The difficulty of appreciating the force of these objections is that we do not know how far they existed at the time when Niebuhr's self-mancipation would have flourished. They are true of classical law, and it must be said that they look more like an inheritance from formalistic times than a creation of classical law.

A much stronger objection, to my mind, has been urged by several authors in the recent controversy, namely that if nexum was a mancipatio, its release should be a remancipatio. Now nexi liberatio must be identified with the solutio per aes et libram of Gaius, and this was not a remancipatio at all. Again, the identification of nexum with mancipatio is contrary to the opinion of Mucius in the Varro passage, according to the best interpretation for what it is worth.

Niebuhr was an historian, and the objections to him are juristic. Let us see if the jurist Huschke fares better.

In his view nexum covers every debt arising p. a. et l., including a loan so contracted. This loan took the form of a weighing of the metal to be lent, before libripens and witnesses, accompanied by a formula spoken by the creditor in which he declared the debtor damnas to repay him. These nexum debts were precisely equivalent, so far as they were liquidated, to a judgment debt (indicatum), and were therefore enforceable by the creditor without judgment on the person of the debtor by manus iniectio. They stood to indicatum as mancipatio to in iure cessio.

In support of this view he urged the constant juxtaposition of nexi and indicati in the historians; the form of re

24 Vermischte Schriften, 2, pp. 396 ff.