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Manus haec inimica tyrannis.

Thursday, March 12, 2009

The Collatine Surrender

I was recently re-reading the first couple of books of Livy on early Roman history — although “history” is rather a misnomer here, as so much of that earliest history is more legend than fact. Nevertheless, I was struck by a certain event that passed during the reign of the elder king Tarquin, in which the city of Collatia surrenders to Rome. The relevant passage is to be found at I.38.2.

The Collatine surrender is very formal. In fact, it bears an uncanny resemblance to the stipulatio, which was a formal contract in Roman law. And in structure, it particularly resembles a very early kind of stipulatio, called the sponsio. The surrender occurs in the following question and answer form:

ROMANS: Are you the legates and spokesmen sent by the people of Collatia? (“Estisne…?”)
COLLATINES: We are. (“Sumus.”)
ROMANS: Is the People of Collatia its own master? (“Estne…?”)
COLLATINES: It is. (“Est.”)
ROMANS: Do you surrender yourselves and the People of Collatia? (“Deditisne…?)
COLLATINES: We do. (“Dedimus.”)
ROMANS: I accept the surrender. (“At ego recipio.”)

In general, the form is, again, question and answer, with the main verb of each answer corresponding to that of the question. In early Roman law, it was very important that the formula be uttered absolutely accurately. Any mistakes, or even any stumbling over the words would invalidate the contract. This is not only superstition; there was a logic to the formula as a whole. The formal structure of the Collatine surrender is as follows:

1. Establishing agency (“Are you the legates…?”).

2. Establishing the competence of the principal for whom the agents act/contract (“Is the People of Collatia its own master?”)

3. Extraction of the promise (“Do you surrender yourselves…?”)

4. Acceptance of promise

There are a couple of things to note about this as it relates to the English common law of contracts. First, in a typical common law contract, step 3 would take the form of an offer on the part of the Collatines, which offer would be followed by an acceptance (step 4).

Second, in the Collatine surrender there is not that element that common law contract theory calls consideration, or at least it is not explicitly stated. The Collatines promise something (indeed, everything), while the Romans offer nothing in return. We could, however, read such a consideration into the contract, e.g. the Romans offer cessation of hostilities. In any case, the doctrine of consideration is no longer as important in the common law as it once was.

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