There is a
defective passage in Gaius, which seems to say that liability may
sometimes be escaped by giving up even the dead body of the
offender. /1/ So Livy relates that, Brutulus Papins having caused
a breach of truce with the Romans, the Samnites determined to
surrender him, and that, upon his avoiding disgrace and
punishment by suicide, they sent his lifeless body. It is
noticeable that the surrender seems to be regarded as the natural
expiation for the breach of treaty, /2/ and that it is equally a
matter of course to send the body when the wrong-doer has
perished. /3/
The most curious examples of this sort occur in the region of
what we should now call contract. Livy again furnishes an
example, if, indeed, the last is not one. The Roman Consul
Postumius concluded the disgraceful peace of the Caudine Forks
(per sponsionem, as Livy says, denying the common story that it
was per feedus), and he was sent to Rome to obtain the sanction
of the people. When there however, he proposed that the persons
who had made the [13] 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 noxoe deditio.
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