APPENDIX I THE NEXUS AND THE VINDEX. (Note to pp. 71 and 73.) THE attempt on p. 71 to explain the contract of nexum is, like all others that have been made, conjectural; but I have not adopted the usual course of explaining nexum by means of the legis actio per manus iniectionem. There is no evidence from antiquity that the manus iniectio, in the sense which it bore in the Twelve Tables and in conformity with the rules there laid down, ever applied to the nexal debtor. The only evidence of this which can be adduced is gained by taking aeris confessi in the procedure described by Gellius (xx. 1, 45 'Aeris confessi rebusque iure iudicatis triginta dies iusti sunto') as a reference to the nexus (Muirhead, Hist. Intr. to Private Law of Rome, 2nd ed. p. 192), and not, as I have done (p. 72), to the judgement debtor who confesses. The theory which I have suggested is that the contract of nexum is quite independent of the legis actio per man. ini., and that by this contract the debtor did not become a quasi-judgement debtor, but a mancipium of his creditor. Mancipium, of course, does not imply that he is a slave, but simply that he is owned. The son under power is owned, but is not a slave. The more general theory is that the nexus was pro iudicato, and in conformity with this view Huschke (Nexum, p. 56) conjectured the following formula for the contract : QUOD EGO TIBI MILLE LIBRAS HOC AERE AENEAQUE LIBRA NEXAS DEDI, EAS TU MIHI POST ANNUM IURE NEXI DARE DAMNAS ESTO: the dare damnas esto expressing a quasi-condemnation (cf. lex Ursonensis, c. LXI 'Si quis in eo vim faciet, ast eius vincitur, dupli damnas esto '). But that the contract of servitude for debt, so widely spread in the Greek world (Diod. i. 79, 5), had at Rome this artificial and derivative origin is improbable. 'At Athens we can even observe the two processes-the contract and the judgement— by which servitude for debt was effected (Ath. Pol. 2); and it is unlikely that, wherever these two methods are found, the contract should be pronounced a quasi-judgement. With respect to the vindex of the leg. act. per man. ini. (p. 73) there are three questions which must be raised. These are (1) what rôle he played, (2) what he was liable for, (3) whether his unsuccessful intervention released the debtor. There is a pretty general agreement amongst modern authorities that he was some kind of representative who took over the action, that he was liable for double the amount of the original debt [because by this intervention he had committed a delict (Huschke, Nexum, p. 96; Girard, Droit Romain, p. 959, n. 3)] and that his intervention, even when unsuccessful, liberated the chief debtor (Zimmern, Civilprozess, p. 132; Huschke, Nexum, pp. 95, 96; Puchta, Inst. pp. 95, 96; Keller, Civilprocess, § 19; Bethmann-Hollweg, Civilprozess, i. p. 197; Ihering, Geist, i. p. 153). Unger was a dissentient. In an article in the Zeitschrift für Rechtsgeschichte (vii. p. 192 sq.) he pointed out the emphatic nature of the statements that representation was unknown in the legis actio (Gaius, iv. 82; Just. Inst. iv. 10) and showed that the vindex is one who simply denies that the creditor has a right over a particular person (Festus, p. 376). Both lay hands on the debtor, and the procedure was probably a sacramento actio. So far Unger is undoubtedly right. The answer to question (1) is that the vinder may be materially, but is not formally, a-procurator or defender; he is a man who is conducting his own case in the interest of another. Unger further held that the vindex, if unsuccessful, was only liable for the amount of the sacramentum- a view which is probable and consistent with the legal position of the vinder, unless we believe that his interference was considered delictal. Questions (2) and (3) really go together, for, if the vindex was only liable for the sacramentum, his conviction could not free the debtor whom he had championed. The latter was then liable in duplum, perhaps because his action in denying the debt and presenting the vindex ('vindicem dabat,' Gaius, iv. 21) was considered a delicta! interference with the course of justice. If, on the other hand, the vindex was liable for double the debt, it seems reasonable to suppose that the debtor was freed, although this is by no means certain, since the vindex is, as we have seen, not formally a representative, nor a defendant in an action, and does not take the litis contestatio with respect to the debt on himself. In the midst of such evenly balanced probabilities it seemed safer to state the ordinary view in the text, and to suggest the modifying considerations in this note. Unger's view is the most attractive because it is the most scientific; but in dealing with these questions of early Roman procedure, we are dealing with a time when there was plenty of law but little jurisprudence. There may have been a lack of logical connexion between the position of the vindex and his liabilities, and unfortunately the central fact-the meaning of the pocna dupli-is still an unfathomable mystery. APPENDIX II CICERO'S SPEECHES FOR QUINCTIUS, ROSCIUS THE ACTOR, TULLIUS AND CAECINA. COMMENTARIES ON THE SPEECHES 1. General (on some or all of the Speeches). Hotmani (F.) Iurisconsulti opera. Tom. iii (Geneva, 1600). Keller (F. L. von) Semestrium ad M. Tullium Ciceronem libri tres Bethmann-Hollweg (M. A. von) Römischer Civilprozess (Bonn, 1865), Gasquy (A.) Cicéron Jurisconsulte (Paris, 1887). On the 'pro Quinctio.' Rau (S. J. E.) Disputatio iuridica ad M. Tullii Ciceronis orationem pro Frei (J.) Der Rechtsstreit zwischen P. Quinctius und S. Naevius; eine Kübler (B.) Der Process des Quinctius und C. Aquilius Gallus in Zeitschrift On the 'pro Roscio comoedo.' Rovers (J. A. C.) De Ciceronis oratione pro Roscio comoedo (Utrecht, 1826). Munchen (M.) M. Tullii Ciceronis pro Q. Roscio comoedo orationem iuridice exposuit (Köln, 1829). Puchta in Rheinisches Museum für Jurisprudenz, Bd. i. (1833), p. 316 ff. Schmidt (C. A.) M. Tullii Ciceronis pro Q. Roscio comoedo oratio (Leipzig, 1839). On the 'pro Caecina.' Cras (H. C.) Dissertatio iuridica inauguralis qua specimen iurisprudentiae Ciceronianae exhibetur, sive Ciceronem iustam pro A. Caecina causam dixisse ostenditur (Leyden, 1769). On the 'pro Tullio.' Huschke (P. E.) Orationis pro M. Tullio quae extunt cum commentariis et excursibus. Inter analecta literaria curante J. G. Huschkio (Leipzig, 1826). The Commentaries are referred to in the following notes by the names of their authors alone. (1) PRO QUINCTIO. GELLIUS says that this was the first case pleaded by Cicero, and that he was twenty-six years old at the time'. The date thus assigned to it is the consulship of Tullius and Dolabella (81 B. C.), and this assignment agrees with certain notes of time given in Cicero's speech. Quinctius, we are told, left Rome in the January of the year when Scipio and Norbanus were consuls (83 B. C.); he returned on the Ides of September of the same year; but Naevius, his opponent, waited eighteen months before pressing his case against him. Cicero also remarks that his first forensic efforts were made under the dictatorship of Sulla3. 2 In his conduct of the defence Cicero succeeded M. Junius. now hampered by official business. The counsel for Naevius was Q. Hortensius', who was assisted by L. Philippus, his senior at the Bar. They were furnished with advice and support by an advocatio of distinguished men'. The iudex in this, as in the former, hearing was C. Aquilius Gallus; and by his side there sat as assessors 10 L. Lucilius Balbus, M. Claudius Marcellus and P. Quinctilius". The case had now come on for a renewed hearing after an adjournment (ampliatio), which was necessitated perhaps by Aquilius having declared himself not sufficiently informed by the earlier pleadings. Hortensius threw the blame for this delay on the advocates of Quinctius and attempted to get from the praetor a limit of time for the speeches on either side 1. But Aquilius, who, as iudex, had now entire control of the proceedings, had scouted this claim. Yet the plaint was not without effect on Cicero; he promises to be brief, and to deal summarily with what he represents as a very lengthy controversy. It was, however, the controversy, not the case, that had been drawn out. When Cicero speaks of the proceedings as having lasted two years, he is reckoning from the Ides of September of 83, when Quinctius had concluded his final |