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Rh but, as it is in harmony with the formula which is given by Gaius for dissolving an obligation of this kind, and with that most frequently employed in the Republic for imposing by a public act liability to pay a fixed and definite sum, it may not be wide of the mark.

What was the effect of this procedure? The question is one not easily answered. Brinz expressed the opinion that the creditor was entitled in virtue of the nexum to take his debtor into custody at any time when he considered such a course necessary for his own protection, even before the conventional term of repayment—that the debtor was in bonds, virtually a pledge, from the very first, and the tightness or looseness of them a matter in the discretion of his creditor. Voigt holds that the nexum did not give the creditor any peculiar hold over his debtor, and that on the latter's failure to repay an ordinary action was necessary, to be followed by the usual proceedings in execution if judgment was in favour of the former. These views may be said to be the two extremes; and between them lie a good many others, more or less divergent. The difficulty of arriving at a conclusion is caused to some extent by the ambiguity of the words nexus and nexum. The transaction itself was called nexum and occasionally also nexus; the money advanced was nexum aes (hence nexi, i.e. aeris, datio); the bond was nexus (of the fourth declension); and the debtor on whom the bond was laid was also nexus (of the second). All this is simple enough. But we find the same word nexus employed by the historians as almost synonymous with vinctus—to denote the condition of a debtor put in fetters by his creditor. That might be the condition either of a nexal borrower or of an ordinary judgment-debtor. The former in such a case was doubly nexus; he was at once in the bonds of legal obligation and in those of physical constraint. In many passages in which Livy and others speak of the nexi it is extremely difficult, sometimes impossible, to be sure in which sense they use the word. It is therefore not surprising that there should be considerable diversity of opinion on the subject.

Since Huschke, the great majority of writers—Voigt, Lenel and Mitteis are distinguished exceptions—concur in opinion that the nexal contract entitled the creditor, after expiry of thirty days from the conventional date of repayment of the loan, to proceed against his debtor by manus injectio without any antecedent action or judgment, and failing settlement to detain him, and put him to servile labour, and subject him to servile treatment, until the loan was repaid. The parallel of such a course is to be met with amongst many ancient nations—Jews, Greeks, Scandinavians, Germans, &c. And it was not altogether unreasonable. If a borrower had already exhausted all available means of raising money, had sold or mortgaged everything he possessed of any value, what other course was open to him in his necessity except to impledge himself? That the creditor should have been entitled to realize the right he had thus acquired without the judgment on it of a court of law is equally intelligible. It was just a case of regulated self-help. The nexal contract was a public act, carried out in the presence of the five citizen witnesses and libripens, who were witnesses alike of the acknowledgment of indebtedness and of the tacit engagement of the debtor. The only valid objection apparently that could be stated against the creditor's apprehension of his debtor in execution was that the indebtedness no longer existed—that the loan had been repaid. But a nexal debt

could be legally discharged only by nexi liberatio, which also was a solemn procedure per aes et libram in the presence of five citizen witnesses. What need for a judicial inquiry in the presence of facts so notorious? A creditor would rarely be daring enough to proceed to manus injectio if his loan had been repaid; if he did, the testimony of the witnesses to the discharge would at once procure the release of his alleged debtor. It was probably to give opportunity for such proof, if there was room for it, that the XII. Tables required that a creditor who had apprehended a nexal debtor should bring him into court before carrying him off into detention.

Whether there was room for a vindex and for a magisterial addiction of the debtor after sixty days, with power to kill or sell into slavery after addiction, are disputed questions, but there seems no good reason for distinguishing a nexal from a judicatus debtor in these respects. Untenable is the notion at any rate that the nexus by the mere contract was placed in loco servi, or that by arrest he was in a worse position than one condemned for a judgment debt, of whom Quintilian states distinctly that he still retained his position in the census and in his tribe. Many a time when the exigencies of the state required it, were the nexi temporarily released in order to obey a call to arms—to fulfil the duty incumbent on them as citizens. The nexal debtor's position after arrest in regard to his family rights is obscure. If originally they shared his nexal condition, this did not long continue to be the law. If he was a house-father he seemingly still retained his manus over his wife and potestas over his children. Their earnings legally belonged to him, and did not fall to his creditor. It was the body of his debtor that the creditor was entitled to, and too often he wreaked his vengeance on it by way of punishment; there was as yet no machinery for attaching the debtor's goods in substantial reparation for the loss caused by his breach of contract.

The abuses to which this system of personal execution gave rise were great. Livy tells us that in the year 428 (326 ) a

more than ordinarily flagrant outrage committed by a creditor upon one of his young nexi, who had given himself up as responsible for a loan contracted by his deceased father, roused the populace to such a pitch of indignation as to necessitate instant remedial legislation. The result was the Poetilian law (Lex Poetilia Papiria). So far as can be gathered from the meagre accounts of it we possess, it contained at least these three provisions—(1) that fetters and neck, arm or foot blocks should in future be applied only to persons undergoing imprisonment for crime or delict; (2) that no one should ever again be the nexus of his creditor in respect of borrowed money; and (3) that all existing nexi should be released. The first was intended to prevent unnecessary restraint upon judgment-debtors formally given over to their creditors. The second did not necessarily abolish the contract of loan per aes et libram, but only what had hitherto been an ipso jure consequence of it—the creditor's right to incarcerate his debtor without either the judgment of a court or the warrant of a magistrate. For the future, execution was to be done against a borrower only as a judgment-debtor formally made over to his creditor by magisterial decree, and under the restrictions and limitations imposed by the Poetilian law itself. This very soon led to the disuse of nexal obligation; once it was deprived of its distinctive processual advantages it rapidly gave place to the simpler engagement by stipulation usually enforceable per condictionem. As for the release of the then existing nexi, Cicero, Livy and Dionysius say nothing of any condition annexed to the boon the statute conferred upon them; but Varro limits it to those qui bonam copiam jurarunt—those apparently who were able to declare on oath that they had done their best and could do no more to meet their creditors' claims. Such a limitation can hardly be called unreasonable, even were we to assume—as probably we ought to do—that the release spoken of was only from the bonds of physical restraint, not from those of legal obligation.

Introduction of the Stipulation. —Few events in the history of the private law were followed by more far-reaching

consequences than the introduction of the stipulation. It exercised an enormous influence on the law of contract; for by means of it there was created a unilateral obligation that in time became adaptable to almost every conceivable undertaking by one man in favour of another. By the use of certain words of style in the form of question and answer any lawful agreement could thereby be made not only