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 [14] for assault; 1 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. 2 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. 3

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. 4 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 a 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 noxoe deditio for wrongs.  Neither is the seeming adhesion of liability to the very body which did the harm of the first importance. [15] The Roman law dealt mainly with living creatures,—­ with animals and slaves.  If a man was run over, it did not surrender the wagon which crushed him, but the ox which drew the wagon. 1 At this stage the notion is easy to understand.  The desire for vengeance may be felt as strongly against a slave as against a freeman, and it is not without example nowadays that a like passion should be felt against an animal.  The surrender of the slave or beast empowered the injured party to do his will upon them.  Payment by the owner was merely a privilege in case he wanted to buy the vengeance off.

It will readily be imagined that such a system as has been described could not last when civilization had advanced to any considerable height.  What had been the privilege of buying off vengeance by agreement, of paying the damage instead of surrendering the body of the offender, no doubt became a general custom.  The Aquilian law, passed about a couple of centuries later than the date of the Twelve Tables,