Page:The Common Law by Oliver Wendell Holmes.djvu/31

14 for assault; and it is said that a debtor who did not pay his debts, or a seller who failed to deliver an article for which he had been paid, was dealt with on the same footing as a thief. This line of thought, together with the quasi material conception of legal obligations as binding the offending body, which has been noticed, would perhaps explain the well-known law of the Twelve Tables as to insolvent debtors. According to that law, if a man was indebted to several creditors and insolvent, after certain formalities they might cut up his body and divide it among them. If there was a single creditor, he might put his debtor to death or sell him as a slave.

If no other right were given but to reduce a debtor to slavery, the law might be taken to look only to compensation, and to be modelled on the natural working of self-redress. The principle of our own law, that taking a man's body on execution satisfies the debt, although he is not detained an hour, seems to be explained in that way. But the right to put to death looks like vengeance, and the division of the body shows that the debt was conceived very literally to inhere in or bind the body with vinculum juris.

Whatever may be the true explanation of surrender in connection with contracts, for the present purpose we need not go further than the common case of noxæ deditio for wrongs. Neither is the seeming adhesion of liability to the very body which did the harm of the first importance.