contract, including himself, should be given up in satisfaction of it. For, he said, the Roman people not having sanctioned the agreement, who is so ignorant of the jus fetialium as not to know that they are released from obligation by surrendering us? The formula of surrender seems to bring the case within the noxæ deditio.[1] Cicero narrates a similar surrender of Maneinus by the paterpatratus to the Numantines, who, however, like the Samnites in the former case, refused to receive him.[2]
It might be asked what analogy could have been found between a breach of contract and those wrongs which excite the desire for vengeance. But it must be remembered that the distinction between tort and breaches of contract, and especially between the remedies for the two, is not found ready made. It is conceivable that a procedure adapted to redress for violence was extended to other cases as they arose. Slaves were surrendered for theft as well as
- ↑ Livy, IX. 5, 8, 9, 10. “Nam quod deditione nostra negant exsolvi religione populum, id istos magis ne dedantur, quam quia ita se res habeat, dicere, quis adeo juris fetialium expers est, qui ignoret?” The formula of surrender was as follows: “Quandoque hisee homines injussu populi Romani Quiritium fœdus ictum iri spoponderunt, atque ob cam rem noxam nocuerunt; ob eam rem, quo populus Romanus scelere impio sit solutus, hosce homines vobis dedo.” Cf. Zonaras, VII. 26, ed. Niebuhr, vol. 43, pp. 98, 99.
- ↑ De Orator. I. 40, and elsewhere. It is to be noticed that Floras, in his account, says dedilumc Mancini expiavit. Kpitome, II. 18. It has already been observed that the cases mentioned by Livy seem to suggest that the object of the surrender was expiation, as much as they do that it was satisfaction of a contract. Zonaras says, Postnmius and Oalvinus th iavro&s rrju alrlav AvaStxo^vw. (VII. 26, ed. Niebuhr, Vol. 43, pp. 1*3, 99.) Cf. ib. p. 97. Compare Serv. ml Virg. Kclog, IV. 43 : " In legibus Numre eautum est, ut si quis imprudens ocridisset hominem pro capite occisi et natis [agnatis? Ifusclike] ejus in concione oiTerret arietcm." Id. Geor. III. 387, and Festus, Subici, tiuhitjere. Hut cf. Wordsworth's Fragments and Specimens of Early Latin, note to XII Tab., XII. 2. p. 538
