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The forms, under which the dealings between Romans and Latins were conducted, were of course the general forms which regulated the mutual dealings of patricians and plebeians; for the -mancipatio- and the -nexum- were originally not at all formal acts, but the significant expression of legal ideas which held a sway at least as extensive as the range of the Latin language.
The ancient Nexum still designates the same ceremony, but only when it is employed for the special purpose of solemnising a contract.
It is unfortunate that we cannot track the early history of Contracts with the same absolute confidence as the early history of Wills, but we are not quite without hints that contracts first showed themselves through the nexum being put to a new use and afterwards obtained recognition as distinct transactions through the important practical consequences of the experiment.
There is some, but not very violent, conjecture in the following delineation of the process. Let us conceive a sale for ready money as the normal type of the Nexum.
Nexum, therefore, which originally signified a Conveyance of property, came insensibly to denote a Contract also, and ultimately so constant became the association between this word and the notion of a Contract, that a special term, Mancipium or Mancipatio, had to be used for the purpose of designating the true nexum or transaction in which the property was really transferred.
At the earliest dawn of the jurisprudence, the term in use for a Contract was one which is very familiar to the students of historical Latinity. It was nexum, and the parties to the contract were said to be nexi, expressions which must be carefully attended to on account of the singular durableness of the metaphor on which they are founded.
The notion that persons under a contractual engagement are connected together by a strong bond or chain, continued till the last to influence the Roman jurisprudence of Contract; and flowing thence it has mixed itself with modern ideas. What then was involved in this nexum or bond?
Though I have said that Patriarchal Power was not at first distinguished according to the objects over which it was exercised, I feel sure that Power over Children was the root of the old conception of Power; and I cannot doubt that the earliest use of the Nexum, and the one primarily regarded by those who resorted to it, was to give proper solemnity to the alienation of property.
The exceptions to this practice will be noticed presently. I have enumerated the four Contracts in their historical order, which order, however, the Roman Institutional writers did not invariably follow. There can be no doubt that the Verbal Contract was the most ancient of the four, and that it is the eldest known descendant of the primitive Nexum.
As then the question and answer of the Stipulation were unquestionably the Nexum in a simplified shape, we are prepared to find that they long partook of the nature of a technical form.
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