Page:Harvard Law Review Volume 10.djvu/350

324 324 HARVARD LAW REVIEW. On the other side, the " pledge " or " collateral security " idea developed by a similar transfer of emphasis where the res handed How shall he pay ? There is no credit ; present satisfaction, provisional or final, is all that creditors of that time take. There are three primitive ways of giving satisfaction. One is by handing over property; this is simple enough. Another is by self-surrender, working out the debt if possible. A third is by handing over the body of a relative ; this is natural enough from the debtor's point of view, such is the solidarity of family responsibility ; from the creditor's point of view it is equally natural, for his ultimate hold on the family property or the corporal servitude of the surety {geisel, pleige, fidejussor) is ample ; and it is even a question whether this payment by corporal surety was not the most natural early form. At any rate, it would be so where a judicial sentence of the assembly was to be satisfied; for property enough the debtor has probably not with him, and his own freedom he needs in order to collect what will pay his creditor. He therefore offers one or more of his relatives as provisional satisfac- tion. A common form (now accepted as authentic) for this was : the debtor hands a stick, a glove, etc., as his wadium, to the creditor, bringing forward at the same time the fidejussor, and the creditor passes the wadium to the fidejussor. The problem is to explain this process. A question which all the theories have to answer, viz. how the wadium came to be a mere valueless article, is here answered by pointing out that the fidejussor was the real payment, — not a surety in our modern sense, but the substantial substitute for present payment, and the real reliance of the creditor. Another question next occurs : Why have the siick-wadium at all ? Why not merely hand over the pieige without the other formality ? In fact, we do not find the intervening siick-zoadium in all primitive laws, — not in the Roman, for example, although we do find the human pledge. But there seem to be two good reasons which account for it in the Germanic law. One is, that, as the typical transaction of provisional payment in every-day life involved the handing over of some res on the spot to the creditor, it was entirely natural that this part of the process should persist in form at least. Another is that the hand- ing of the wadium to the pleige made it possible for him to get redress against the original debtor if he subsequently left the pleige to suffer. The debtor could not be thought of as subject to a levy from another unless the other had some mark of a creditor; and the surety would be content with a wadium of nominal value (as the creditor would not), because family feeling would compel the debtor to redeem. Thus, the wadium was handed to the creditor as a formal, though worthless payment, freeing the debtor; then the pleige surrendered himself to the creditor, and thus liberavit wadiwn, taking it himself. In later times, the personal surety dropped out of the transaction, because it was no longer in harmony with social conditions, and because credit had developed, while the wadium stick or glove remained associated in form with the idea of plighted faith. Three facts in particular seem to narrow down the explanation of the process to something like the above : (i) The wadium was the regular and proper accompaniment in judgment promises, but was casual only in extra-judicial promises, — indicating the former as the home of the form ; (2) the debtor had to give a substantial substitute for payment, either property or self or relative ; he was primitively never let off with a mere form, — indicating that the wadium would never have been allowed to become a res of trifling value if it had not been accompanied by other sufficient value ; and (3) in the judgment-promise with wadium iht pleige always accompanied it, indicating that it was the presence of the substantial pleige which allowed the wadium to become of mere nominal value, and paved the way for its becoming a conventional form. The foregoing attempt to restate the origin of the wadium promise is of course based