CHAPTER IX

THE EARLY HISTORY OF CONTRACT

There are few general propositions concerning the age to which we

belong which seem at first sight likely to be received with readier

concurrence than the assertion that the society of our day is mainly

distinguished from that of preceding generations by the largeness of

the sphere which is occupied in it by Contract. Some of the phenomena

on which this proposition rests are among those most frequently

singled out for notice, for comment, and for eulogy. Not many of us

are so unobservant as not to perceive that in innumerable cases where

old law fixed a man's social position irreversibly at his birth,

modern law allows him to create it for himself by convention; and

indeed several of the few exceptions which remain to this rule are

constantly denounced with passionate indignation. The point, for

instance, which is really debated in the vigorous controversy still

carried on upon the subject of negro servitude, is whether the status

of the slave does not belong to bygone institutions, and whether the

only relation between employer and labourer which commends itself to

modern morality be not a relation determined exclusively by contract.

The recognition of this difference between past ages and the present

enters into the very essence of the most famous contemporary

speculations. It is certain that the science of Political Economy, the

only department of moral inquiry which has made any considerable

progress in our day, would fail to correspond with the facts of life

if it were not true that Imperative Law had abandoned the largest part

of the field which it once occupied, and had left men to settle rules

of conduct for themselves with a liberty never allowed to them till

recently. The bias indeed of most persons trained in political economy

is to consider the general truth on which their science reposes as

entitled to become universal, and, when they apply it as an art, their

efforts are ordinarily directed to enlarging the province of Contract

and to curtailing that of Imperative Law, except so far as law is

necessary to enforce the performance of Contracts. The impulse given

by thinkers who are under the influence of these ideas is beginning to

be very strongly felt in the Western world. Legislation has nearly

confessed its inability to keep pace with the activity of man in

discovery, in invention, and in the manipulation of accumulated

wealth; and the law even of the least advanced communities tends more

and more to become a mere surface-stratum having under it an

ever-changing assemblage of contractual rules with which it rarely

interferes except to compel compliance with a few fundamental

principles or unless it be called in to punish the violation of good

faith.

Social inquiries, so far as they depend on the consideration of legal

phenomena, are in so backward a condition that we need not be

surprised at not finding these truths recognised in the commonplaces

which pass current concerning the progress of society. These

commonplaces answer much more to our prejudices than to our

convictions. The strong disinclination of most men to regard morality

as advancing seems to be especially powerful when the virtues on which

Contract depends are in question, and many of us have almost

instinctive reluctance to admitting that good faith and trust in our

fellows are more widely diffused than of old, or that there is

anything in contemporary manners which parallels the loyalty of the

antique world. From time to time, these prepossessions are greatly

strengthened by the spectacle of frauds, unheard of before the period

at which they were observed, and astonishing from their complication

as well as shocking from criminality. But the very character of these

frauds shows clearly that, before they became possible, the moral

obligations of which they are the breach must have been more than

proportionately developed. It is the confidence reposed and deserved

by the many which affords facilities for the bad faith of the few, so

that, if colossal examples of dishonesty occur, there is no surer

conclusion than that scrupulous honesty is displayed in the average of

the transactions which, in the particular case, have supplied the

delinquent with his opportunity. If we insist on reading the history

of morality as reflected in jurisprudence, by turning our eyes not on

the law of Contract but on the law of Crime, we must be careful that

we read it aright. The only form of dishonesty treated of in the most

ancient Roman law is Theft. At the moment at which I write, the

newest chapter in the English criminal law is one which attempts to

prescribe punishment for the frauds of Trustees. The proper inference

from this contrast is not that the primitive Romans practised a higher

morality than ourselves. We should rather say that, in the interval

between their days and ours, morality has advanced from a very rude to

a highly refined conception--from viewing the rights of property as

exclusively sacred, to looking upon the rights growing out of the mere

unilateral reposal of confidence as entitled to the protection of the

penal law.

The definite theories of jurists are scarcely nearer the truth in this

point than the opinions of the multitude. To begin with the views of

the Roman lawyers, we find them inconsistent with the true history of

moral and legal progress. One class of contracts, in which the

plighted faith of the contracting parties was the only material

ingredient, they specifically denominated Contracts _juris gentium_,

and though these contracts were undoubtedly the latest born into the

Roman system, the expression employed implies, if a definite meaning

be extracted from it, that they were more ancient than certain other

forms of engagement treated of in Roman law, in which the neglect of a

mere technical formality was as fatal to the obligation as

misunderstanding or deceit. But then the antiquity to which they were

referred was vague, shadowy, and only capable of being understood

through the Present; nor was it until the language of the Roman

lawyers became the language of an age which had lost the key to their

mode of thought that a "Contract of the Law of Nations" came to be

distinctly looked upon as a Contract known to man in a State of

Nature. Rousseau adopted both the juridical and the popular error. In

the Dissertation on the effects of Art and Science upon Morals, the

first of his works which attracted attention and the one in which he

states most unreservedly the opinions which made him the founder of a

sect, the veracity and good faith attributed to the ancient Persians

are repeatedly pointed out as traits of primitive innocence which have

been gradually obliterated by civilisation; and at a later period he

found a basis for all his speculations in the doctrine of an original

Social Contract. The Social Contract or Compact is the most systematic

form which has ever been assumed by the error we are discussing. It

is a theory which, though nursed into importance by political

passions, derived all its sap from the speculations of lawyers. True

it certainly is that the famous Englishmen, for whom it had first had

attraction, valued it chiefly for its political serviceableness, but,

as I shall presently attempt to explain, they would never have arrived

at it, if politicians had not long conducted their controversies in

legal phraseology. Nor were the English authors of the theory blind to

that speculative amplitude which recommended it so strongly to the

Frenchmen who inherited it from them. Their writings show they

perceived that it could be made to account for all social, quite as

well as for all political phenomena. They had observed the fact,

already striking in their day, that of the positive rules obeyed by

men, the greater part were created by Contract, the lesser by

Imperative Law. But they were ignorant or careless of the historical

relation of these two constituents of jurisprudence. It was for the

purpose, therefore, of gratifying their speculative tastes by

attributing all jurisprudence to a uniform source, as much as with the

view of eluding the doctrines which claimed a divine parentage for

Imperative Law, that they devised the theory that all Law had its

origin in Contract. In another stage of thought, they would have been

satisfied to leave their theory in the condition of an ingenious

hypothesis or a convenient verbal formula. But that age was under the

dominion of legal superstitions. The State of Nature had been talked

about till it had ceased to be regarded as paradoxical, and hence it

seemed easy to give a fallacious reality and definiteness to the

contractual origin of Law by insisting on the Social Compact as a

historical fact.

Our own generation has got rid of these erroneous juridical theories,

partly by outgrowing the intellectual state to which they belong, and

partly by almost ceasing to theorise on such subjects altogether. The

favourite occupation of active minds at the present moment, and the

one which answers to the speculations of our forefathers on the origin

of the social state, is the analysis of society as it exists and moves

before our eyes; but, through omitting to call in the assistance of

history, this analysis too often degenerates into an idle exercise of

curiosity, and is especially apt to incapacitate the inquirer for

comprehending states of society which differ considerably from that to

which he is accustomed. The mistake of judging the men of other

periods by the morality of our own day has its parallel in the mistake

of supposing that every wheel and bolt in the modern social machine

had its counterpart in more rudimentary societies. Such impressions

ramify very widely, and masque themselves very subtly, in historical

works written in the modern fashion; but I find the trace of their

presence in the domain of jurisprudence in the praise which is

frequently bestowed on the little apologue of Montesquieu concerning

the Troglodytes, inserted in the _Lettres Persanes_. The Troglodytes

were a people who systematically violated their Contracts, and so

perished utterly. If the story bears the moral which its author

intended, and is employed to expose an anti-social heresy by which

this century and the last have been threatened, it is most

unexceptionable; but if the inference be obtained from it that society

could not possibly hold together without attaching a sacredness to

promises and agreements which should be on something like a par with

the respect that is paid to them by a mature civilisation, it involves

an error so grave as to be fatal to all sound understanding of legal

history. The fact is that the Troglodytes have flourished and founded

powerful states with very small attention to the obligations of

Contract. The point which before all others has to be apprehended in

the constitution of primitive societies is that the individual creates

for himself few or no rights, and few or no duties. The rules which he

obeys are derived first from the station into which he is born, and

next from the imperative commands addressed to him by the chief of the

household of which he forms part. Such a system leaves the very

smallest room for Contract. The members of the same family (for so we

may interpret the evidence) are wholly incapable of contracting with

each other, and the family is entitled to disregard the engagements by

which any one of its subordinate members has attempted to bind it.

Family, it is true, may contract with family, chieftain with

chieftain, but the transaction is one of the same nature, and

encumbered by as many formalities, as the alienation of property, and

the disregard of one iota of the performance is fatal to the

obligation. The positive duty resulting from one man's reliance on the

word of another is among the slowest conquests of advancing

civilisation.

Neither Ancient Law nor any other source of evidence discloses to us

society entirely destitute of the conception of Contract. But the

conception, when it first shows itself, is obviously rudimentary. No

trustworthy primitive record can be read without perceiving that the

habit of mind which induces us to make good a promise is as yet

imperfectly developed, and that acts of flagrant perfidy are often

mentioned without blame and sometimes described with approbation. In

the Homeric literature, for instance, the deceitful cunning of Ulysses

appears as a virtue of the same rank with the prudence of Nestor, the

constancy of Hector, and the gallantry of Achilles. Ancient law is

still more suggestive of the distance which separates the crude form

of Contract from its maturity. At first, nothing is seen like the

interposition of law to compel the performance of a promise. That

which the law arms with its sanctions is not a promise, but a promise

accompanied with a solemn ceremonial. Not only are formalities of

equal importance with the promise itself, but they are, if anything,

of greater importance; for that delicate analysis which mature

jurisprudence applies to the conditions of mind under which a

particular verbal assent is given appears, in ancient law, to be

transferred to the words and gestures of the accompanying performance.

No pledge is enforced if a single form be omitted or misplaced, but,

on the other hand, if the forms can be shown to have been accurately

proceeded with, it is of no avail to plead that the promise was made

under duress or deception. The transmutation of this ancient view into

the familiar notion of a Contract is plainly seen in the history of

jurisprudence. First one or two steps in the ceremonial are dispensed

with; then the others are simplified or permitted to be neglected on

certain conditions; lastly, a few specific contracts are separated

from the rest and allowed to be entered into without form, the

selected contracts being those on which the activity and energy of

social intercourse depends. Slowly, but most distinctly, the mental

engagement isolates itself amid the technicalities, and gradually

becomes the sole ingredient on which the interest of the jurisconsult

is concentrated. Such a mental engagement, signified through external

acts, the Romans called a Pact or Convention; and when the Convention

has once been conceived as the nucleus of a Contract, it soon becomes

the tendency of advancing jurisprudence to break away the external

shell of form and ceremony. Forms are thenceforward only retained so

far as they are guarantees of authenticity, and securities for

caution and deliberation. The idea of a Contract is fully developed,

or, to employ the Roman phrase, Contracts are absorbed in Pacts.

The history of this course of change in Roman law is exceedingly

instructive. 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? A definition which has

descended to us from one of the Latin antiquarians describes _nexum_

as _omne quod geritur per aes et libram_, "every transaction with the

copper and the balance," and these words have occasioned a good deal

of perplexity. The copper and the balance are the well-known

accompaniments of the Mancipation, the ancient solemnity described in

a former chapter, by which the right of ownership in the highest form

of Roman Property was transferred from one person to another.

Mancipation was a _conveyance_, and hence has arisen the difficulty,

for the definition thus cited appears to confound Contracts and

Conveyances, which in the philosophy of jurisprudence are not simply

kept apart, but are actually opposed to each other. The _jus in re_,

right _in rem_, right "availing against all the world," or Proprietary

Right, is sharply distinguished by the analyst of mature jurisprudence

from the _jus ad rem_, right _in personam_, right "availing a single

individual or group," or obligation. Now Conveyances transfer

Proprietary Rights, Contracts create Obligations--how then can the two

be included under the same name or same general conception? This, like

many similar embarrassments, has been occasioned by the error of

ascribing to the mental condition of an unformed society a faculty

which pre-eminently belongs to an advanced stage of intellectual

development, the faculty of distinguishing in speculation ideas which

are blended in practice. We have indications not to be mistaken of a

state of social affairs in which Conveyances and Contracts were

practically confounded; nor did the discrepance of the conceptions

become perceptible till men had begun to adopt a distinct practice in

contracting and conveying.

It may here be observed that we know enough of ancient Roman law to

give some idea of the mode of transformation followed by legal

conceptions and by legal phraseology in the infancy of Jurisprudence.

The change which they undergo appears to be a change from general to

special; or, as we might otherwise express it, the ancient conceptions

and the ancient terms are subjected to a process of gradual

specialisation. An ancient legal conception corresponds not to one but

to several modern conceptions. An ancient technical expression serves

to indicate a variety of things which in modern law have separate

names allotted to them. If however we take up the history of

Jurisprudence at the next stage, we find that the subordinate

conceptions have gradually disengaged themselves and that the old

general names are giving way to special appellations. The old general

conception is not obliterated, but it has ceased to cover more than

one or a few of the notions which it first included. So too the old

technical name remains, but it discharges only one of the functions

which it once performed. We may exemplify this phenomenon in various

ways. Patriarchal Power of all sorts appears, for instance, to have

been once conceived as identical in character, and it was doubtless

distinguished by one name. The Power exercised by the ancestor was the

same whether it was exercised over the family or the material

property--over flocks, herds, slaves, children, or wife. We cannot be

absolutely certain of its old Roman name, but there is very strong

reason for believing, from the number of expressions indicating shades

of the notion of _power_ into which the word _manus_ enters, that the

ancient general term was _manus_. But, when Roman law has advanced a

little, both the name and the idea have become specialised. Power is

discriminated, both in word and in conception, according to the

object over which it is exerted. Exercised over material commodities

or slaves, it has become _dominium_--over children, it is

_Potestas_--over free persons whose services have been made away to

another by their own ancestor, it is _mancipium_--over a wife, it is

still _manus_. The old word, it will be perceived, has not altogether

fallen into desuetude, but is confined to one very special exercise

of the authority it had formerly denoted. This example will enable us

to comprehend the nature of the historical alliance between Contracts

and Conveyances. There seems to have been one solemn ceremonial at

first for all solemn transactions, and its name at Rome appears to

have been _nexum_. Precisely the same forms which were in use when a

conveyance of property was effected seem to have been employed in the

making of a contract. But we have not very far to move onwards before

we come to a period at which the notion of a Contract has disengaged

itself from the notion of a Conveyance. A double change has thus taken

place. The transaction "with the copper and the balance," when

intended to have for its office the transfer of property, is known by

the new and special name of Mancipation. The ancient Nexum still

designates the same ceremony, but only when it is employed for the

special purpose of solemnising a contract.

When two or three legal conceptions are spoken of as anciently blended

in one, it is not intended to imply that some one of the included

notions may not be older than the others, or, when those others have

been formed, may not greatly predominate over and take precedence over

them. The reason why one legal conception continues so long to cover

several conceptions, and one technical phrase to do instead of

several, is doubtless that practical changes are accomplished in the

law of primitive societies long before men see occasion to notice or

name them. 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. It is likely that a

very slight perversion of the Nexum from its original functions first

gave rise to its employment in Contracts, and that the very slightness

of the change long prevented its being appreciated or noticed. The old

name remained because men had not become conscious that they wanted a

new one; the old notion clung to the mind because nobody had seen

reason to be at the pains of examining it. We have had the process

clearly exemplified in the history of Testaments. A Will was at first

a simple conveyance of property. It was only the enormous practical

difference that gradually showed itself between this particular

conveyance and all others which caused it to be regarded separately,

and even as it was, centuries elapsed before the ameliorators of law

cleared away the useless encumbrance of the nominal mancipation, and

consented to care for nothing in the Will but the expressed intentions

of the Testator. 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. The seller brought the property of which he intended to

dispose--a slave, for example--the purchaser attended with the rough

ingots of copper which served for money--and an indispensable

assistant, the _libripens_, presented himself with a pair of scales.

The slave with certain fixed formalities was handed over to the

vendee--the copper was weighed by the _libripens_ and passed to the

vendor. So long as the business lasted it was a _nexum_, and the

parties were _nexi_; but the moment it was completed, the _nexum_

ended, and the vendor and purchaser ceased to bear the name derived

from their momentary relation. But now, let us move a step onward in

commercial history. Suppose the slave transferred, but the money not

paid. In _that_ case, the _nexum_ is finished, so far as the seller is

concerned, and when he has once handed over his property, he is no

longer _nexus_; but, in regard to the purchaser, the _nexum_

continues. The transaction, as to his part of it, is incomplete, and

he is still considered to be _nexus_. It follows, therefore, that the

same term described the Conveyance by which the right of property was

transmitted, and the personal obligation of the debtor for the unpaid

purchase-money. We may still go forward, and picture to ourselves a

proceeding wholly formal, in which _nothing_ is handed over and

_nothing_ paid; we are brought at once to a transaction indicative of

much higher commercial activity, an _executory Contract of Sale_.

If it be true that, both in the popular and in the professional view,

a _Contract_ was long regarded as an _incomplete Conveyance_, the

truth has importance for many reasons. The speculations of the last

century concerning mankind in a state of nature, are not unfairly

summed up in the doctrine that "in the primitive society property was

nothing, and obligation everything;" and it will now be seen that, if

the proposition were reversed, it would be nearer the reality. On the

other hand, considered historically, the primitive association of

Conveyances and Contracts explains something which often strikes the

scholar and jurist as singularly enigmatical, I mean the extraordinary

and uniform severity of very ancient systems of law to _debtors_, and

the extravagant powers which they lodge with _creditors_. When once we

understand that the _nexum_ was artificially prolonged to give time to

the debtor, we can better comprehend his position in the eye of the

public and of the law. His indebtedness was doubtless regarded as an

anomaly, and suspense of payment in general as an artifice and a

distortion of strict rule. The person who had duly consummated his

part in the transaction must, on the contrary, have stood in peculiar

favour; and nothing would seem more natural than to arm him with

stringent facilities for enforcing the completion of a proceeding

which, of strict right, ought never to have been extended or deferred.

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. Contracts are therefore now severed

from Conveyances, and the first stage in their history is

accomplished, but still they are far enough from that epoch of their

development when the promise of the contractor has a higher sacredness

than the formalities with which it is coupled. In attempting to

indicate the character of the changes passed through in this interval,

it is necessary to trespass a little on a subject which lies properly

beyond the range of these pages, the analysis of Agreement effected by

the Roman jurisconsults. Of this analysis, the most beautiful monument

of their sagacity, I need not say more than that it is based on the

theoretical separation of the Obligation from the Convention or Pact.

Bentham and Mr. Austin have laid down that the "two main essentials of

a contract are these: first, a signification by the promising party of

his _intention_ to do the acts or to observe the forbearances which he

promises to do or to observe. Secondly, a signification by the

promisee that he _expects_ the promising party will fulfil the

proffered promise." This is virtually identical with the doctrine of

the Roman lawyers, but then, in their view, the result of these

"significations" was not a Contract, but a Convention or Pact. A Pact

was the utmost product of the engagements of individuals agreeing

among themselves, and it distinctly fell short of a Contract. Whether

it ultimately became a Contract depended on the question whether the

law annexed an Obligation to it. A Contract was a Pact (or Convention)

_plus_ an Obligation. So long as the Pact remained unclothed with the

Obligation, it was called _nude_ or _naked_.

What was an Obligation? It is defined by the Roman lawyers as "Juris

vinculum, quo necessitate adstringimur alicujus solvendae rei." This

definition connects the Obligation with the Nexum through the common

metaphor on which they are founded, and shows us with much clearness

the pedigree of a peculiar conception. The Obligation is the "bond" or

"chain" with which the law joins together persons or groups of

persons, in consequence of certain voluntary acts. The acts which have

the effect of attracting an Obligation are chiefly those classed under

the heads of Contract and Delict, of Agreement and Wrong; but a

variety of other acts have a similar consequence which are not capable

of being comprised in an exact classification. It is to be remarked,

however, that the act does not draw to itself the Obligation in

consequence of any moral necessity; it is the law which annexes it in

the plenitude of its power, a point the more necessary to be noted,

because a different doctrine has sometimes been propounded by modern

interpreters of the Civil Law who had moral or metaphysical theories

of their own to support. The image of a _vinculum juris_ colours and

pervades every part of the Roman law of Contract and Delict. The law

bound the parties together, and the _chain_ could only be undone by

the process called _solutio_, an expression still figurative, to which

our word "payment" is only occasionally and incidentally equivalent.

The consistency with which the figurative image was allowed to present

itself, explains an otherwise puzzling peculiarity of Roman legal

phraseology, the fact that "Obligation" signified rights as well as

duties, the right, for example, to have a debt paid as well as the

duty of paying it. The Romans kept in fact the entire picture of the

"legal chain" before their eyes, and regarded one end of it no more

and no less than the other.

In the developed Roman law, the Convention, as soon as it was

completed, was, in almost all cases, at once crowned with the

Obligation, and so became a Contract; and this was the result to which

contract-law was surely tending. But for the purpose of this inquiry,

we must attend particularly to the intermediate stage--that in which

something more than a perfect agreement was required to attract the

Obligation. This epoch is synchronous with the period at which the

famous Roman classification of Contracts into four sorts--the Verbal,

the Literal, the Real, and the Consensual--had come into use, and

during which these four orders of Contracts constituted the only

descriptions of engagement which the law would enforce. The meaning of

the fourfold distribution is readily understood as soon as we

apprehend the theory which severed the Obligation from the Convention.

Each class of contracts was in fact named from certain formalities

which were required over and above the mere agreement of the

contracting parties. In the Verbal Contract, as soon as the Convention

was effected, a form of words had to be gone through before the

vinculum juris was attached to it. In the Literal Contract, an entry

in a ledger or table-book had the effect of clothing the Convention

with the Obligation, and the same result followed, in the case of the

Real Contract, from the delivery of the Res or Thing which was the

subject of the preliminary engagement. The contracting parties came,

in short, to an understanding in each case; but, if they went no

further, they were not _obliged_ to one another, and could not compel

performance or ask redress for a breach of faith. But let them comply

with certain prescribed formalities, and the Contract was immediately

complete, taking its name from the particular form which it had suited

them to adopt. 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. Several species of Verbal Contract were anciently in

use, but the most important of all, and the only one treated of by our

authorities, was effected by means of a _stipulation_, that is, a

Question and Answer; a question addressed by the person who exacted

the promise, and an answer given by the person who made it. This

question and answer constituted the additional ingredient which, as I

have just explained, was demanded by the primitive notion over and

above the mere agreement of the persons interested. They formed the

agency by which the Obligation was annexed. The old Nexum has now

bequeathed to maturer jurisprudence first of all the conception of a

chain uniting the contracting parties, and this has become the

Obligation. It has further transmitted the notion of a ceremonial

accompanying and consecrating the engagement, and this ceremonial has

been transmuted into the Stipulation. The conversion of the solemn

conveyance, which was the prominent feature of the original Nexum,

into a mere question and answer, would be more of a mystery than it is

if we had not the analogous history of Roman Testaments to enlighten

us. Looking to that history, we can understand how the formal

Conveyance was first separated from the part of the proceeding which

had immediate reference to the business in hand, and how afterwards it

was omitted altogether. 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. It would be a mistake to consider them as exclusively

recommending themselves to the older Roman lawyers through their

usefulness in furnishing persons meditating an agreement with an

opportunity for consideration and reflection. It is not to be disputed

that they had a value of this kind, which was gradually recognised;

but there is proof that their function in respect to Contracts was at

first formal and ceremonial in the statement of our authorities, that

not every question and answer was of old sufficient to constitute a

Stipulation, but only a question and answer couched in technical

phraseology specially appropriated to the particular occasion.

But although it is essential for the proper appreciation of the

history of contract-law that the Stipulation should be understood to

have been looked upon as a solemn form before it was recognised as a

useful security, it would be wrong on the other hand to shut our eyes

to its real usefulness. The Verbal Contract, though it had lost much

of its ancient importance, survived to the latest period of Roman

jurisprudence; and we may take it for granted that no institution of

Roman law had so extended a longevity unless it served some practical

advantage. I observe in an English writer some expressions of surprise

that the Romans even of the earliest times were content with so meagre

a protection against haste and irreflection. But on examining the

Stipulation closely, and remembering that we have to do with a state

of society in which written evidence was not easily procurable, I

think we must admit that this Question and Answer, had it been

expressly devised to answer the purpose which it served, would have

been justly designated a highly ingenious expedient. It was the

_promisee_ who, in the character of stipulator, put all the terms of

the contract into the form of a question, and the answer was given by

the _promisor_. "Do you promise that you will deliver me such and such

a slave, at such and such a place, on such and such a day?" "I do

promise." Now, if we reflect for a moment, we shall see that this

obligation to put the promise interrogatively inverts the natural

position of the parties, and, by effectually breaking the tenor of the

conversation, prevents the attention from gliding over a dangerous

pledge. With us, a verbal promise is, generally speaking, to be

gathered exclusively from the words of the promisor. In old Roman law,

another step was absolutely required; it was necessary for the

promisee, after the agreement had been made, to sum up all its terms

in a solemn interrogation; and it was of this interrogation, of

course, and of the assent to it, that proof had to be given at the

trial--_not_ of the promise, which was not in itself binding. How

great a difference this seemingly insignificant peculiarity may make

in the phraseology of contract-law is speedily realised by the

beginner in Roman jurisprudence, one of whose first stumbling-blocks

is almost universally created by it. When we in English have occasion,

in mentioning a contract, to connect it for convenience' sake with one

of the parties--for example, if we wished to speak generally of a

contractor--it is always the _promisor_ at whom our words are

pointing. But the general language of Roman law takes a different

turn; it always regards the contract, if we may so speak, from the

point of view of the _promisee_; in speaking of a party to a contract,

it is always the Stipulator, the person who asks the question, who is

primarily alluded to. But the serviceableness of the stipulation is

most vividly illustrated by referring to the actual examples in the

pages of the Latin comic dramatists. If the entire scenes are read

down in which these passages occur (ex. gra. Plautus, _Pseudolus_, Act

I. sc. i; Act IV. sc. 6; _Trinummus_, Act V. sc. 2), it will be

perceived how effectually the attention of the person meditating the

promise must have been arrested by the question, and how ample was the

opportunity for withdrawal from an improvident undertaking.

In the Literal or Written Contract, the formal act, by which an

Obligation was superinduced on the Convention, was an entry of the sum

due, where it could be specifically ascertained, on the debit side of

a ledger. The explanation of this Contract turns on a point of Roman

domestic manners, the systematic character and exceeding regularity of

bookkeeping in ancient times. There are several minor difficulties of

old Roman law, as, for example, the nature of the Slave's Peculium,

which are only cleared up when we recollect that a Roman household

consisted of a number of persons strictly accountable to its head, and

that every single item of domestic receipt and expenditure, after

being entered in waste books, was transferred at stated periods to a

general household ledger. There are some obscurities, however, in the

descriptions we have received of the Literal Contract, the fact being

that the habit of keeping books ceased to be universal in later times,

and the expression "Literal Contract" came to signify a form of

engagement entirely different from that originally understood. We are

not, therefore, in a position to say, with respect to the primitive

Literal Contract, whether the obligation was created by a simple entry

on the part of the creditor, or whether the consent of the debtor or a

corresponding entry in his own books was necessary to give it legal

effect. The essential point is however established that, in the case

of this Contract, all formalities were dispensed with on a condition

being complied with. This is another step downwards in the history of

contract-law.

The Contract which stands next in historical succession, the Real

Contract, shows a great advance in ethical conceptions. Whenever any

agreement had for its object the delivery of a specific thing--and

this is the case with the large majority of simple engagements--the

Obligation was drawn down as soon as the delivery had actually taken

place. Such a result must have involved a serious innovation on the

oldest ideas of Contract; for doubtless, in the primitive times, when

a contracting party had neglected to clothe his agreement in a

stipulation, nothing done in pursuance of the agreement would be

recognised by the law. A person who had paid over money on loan would

be unable to sue for its repayment unless he had formally _stipulated_

for it. But, in the Real Contract, performance on one side is allowed

to impose a legal duty on the other--evidently on ethical grounds. For

the first time then moral considerations appear as an ingredient in

Contract-law, and the Real Contract differs from its two predecessors

in being founded on these, rather than on respect for technical forms

or on deference to Roman domestic habits.

We now reach the fourth class, or Consensual Contracts, the most

interesting and important of all. Four specified Contracts were

distinguished by this name: Mandatum, _i.e._ Commission or Agency;

Societas or Partnership; Emtio Venditio or Sale; and Locatio Conductio

or Letting and Hiring. A few pages ago, after stating that a Contract

consisted of a Pact or Convention to which an Obligation had been

superadded, I spoke of certain acts or formalities by which the law

permitted the Obligation to be attracted to the Pact. I used this

language on account of the advantage of a general expression, but it

is not strictly correct unless it be understood to include the

negative as well as the positive. For, in truth, the peculiarity of

these Consensual Contracts is that _no_ formalities, are required to

create them out of the Pact. Much that is indefensible, and much more

that is obscure, has been written about the Consensual Contracts, and

it has even been asserted that in them the _consent_ of the Parties is

more emphatically given than in any other species of agreement. But

the term Consensual merely indicates that the Obligation is here

annexed at once to the _Consensus_. The Consensus, or mutual assent of

the parties, is the final and crowning ingredient in the Convention,

and it is the special characteristic of agreements falling under one

of the four heads of Sale, Partnership, Agency, and Hiring, that, as

soon as the assent of the parties has supplied this ingredient, there

is _at once_ a Contract. The Consensus draws with it the Obligation,

performing, in transactions of the sort specified, the exact functions

which are discharged, in the other contracts, by the _Res_ or Thing,

by the _Verba_ stipulationis, and by the _Literae_ or written entry in

a ledger. Consensual is therefore a term which does not involve the

slightest anomaly, but is exactly analogous to Real, Verbal, and

Literal.

In the intercourse of life the commonest and most important of all the

contracts are unquestionably the four styled Consensual. The larger

part of the collective existence of every community is consumed in

transactions of buying and selling, of letting and hiring, of

alliances between men for purposes of business, of delegation of

business from one man to another; and this is no doubt the

consideration which led the Romans, as it has led most societies, to

relieve these transactions from technical incumbrance, to abstain as

much as possible from clogging the most efficient springs of social

movement. Such motives were not of course confined to Rome, and the

commerce of the Romans with their neighbours must have given them

abundant opportunities for observing that the contracts before us

tended everywhere to become _Consensual_, obligatory on the mere

signification of mutual assent. Hence, following their usual practice,

they distinguished these contracts as contracts _Juris Gentium_. Yet I

do not think that they were so named at a very early period. The first

notions of a Jus Gentium may have been deposited in the minds of the

Roman lawyers long before the appointment of a Praetor Peregrinus, but

it would only be through extensive and regular trade that they would

be familiarised with the contractual system of other Italian

communities, and such a trade would scarcely attain considerable

proportions before Italy had been thoroughly pacified, and the

supremacy of Rome conclusively assured. Although, however, there is

strong probability that the Consensual Contracts were the latest-born

into the Roman system, and though it is likely that the qualification,

_Juris Gentium_, stamps the recency of their origin, yet this very

expression, which attributes them to the "Law of Nations," has in

modern times produced the notion of their extreme antiquity. For,

when the "Law of Nations" had been converted into the "Law of Nature,"

it seemed to be implied that the Consensual Contracts were the type of

the agreements most congenial to the natural state; and hence arose

the singular belief that the younger the civilisation, the simpler

must be its forms of contract.

The Consensual Contracts, it will be observed, were extremely limited

in number. But it cannot be doubted that they constituted the stage in

the history of Contract-law from which all modern conceptions of

contract took their start. The motion of the will which constitutes

agreement was now completely insulated, and became the subject of

separate contemplation; forms were entirely eliminated from the notion

of contract, and external acts were only regarded as symbols of the

internal act of volition. The Consensual Contracts had, moreover, been

classed in the Jus Gentium, and it was not long before this

classification drew with it the inference that they were the species

of agreement which represented the engagements approved of by Nature

and included in her code. This point once reached, we are prepared for

several celebrated doctrines and distinctions of the Roman lawyers.

One of them is the distinction between Natural and Civil Obligations.

When a person of full intellectual maturity had deliberately bound

himself by an engagement, he was said to be under a _natural

obligation_, even though he had omitted some necessary formality, and

even though through some technical impediment he was devoid of the

formal capacity for making a valid contract. The law (and this is what

the distinction implies) would not enforce the obligation, but it did

not absolutely refuse to recognise it; and _natural obligations_

differed in many respects from obligations which were merely null and

void, more particularly in the circumstance that they could be civilly

confirmed, if the capacity for contract were subsequently acquired.

Another very peculiar doctrine of the jurisconsults could not have had

its origin earlier than the period at which the Convention was severed

from the technical ingredients of Contract. They taught that though

nothing but a Contract could be the foundation of an _action_, a mere

Pact or Convention could be the basis of a _plea_. It followed from

this, that though nobody could sue upon an agreement which he had not

taken the precaution to mature into a Contract by complying with the

proper forms, nevertheless a claim arising out of a valid contract

could be rebutted by proving a counter-agreement which had never got

beyond the state of a simple convention. An action for the recovery of

a debt could be met by showing a mere informal agreement to waive or

postpone the payment.

The doctrine just stated indicates the hesitation of the Praetors in

making their advances towards the greatest of their innovations. Their

theory of Natural law must have led them to look with especial favour

on the Consensual Contracts and on those Pacts or Conventions of which

the Consensual Contracts were only particular instances; but they did

not at once venture on extending to all Conventions the liberty of the

Consensual Contracts. They took advantage of that special

superintendence over procedure which had been confided to them since

the first beginnings of Roman law, and, while they still declined to

permit a suit to be launched which was not based on a formal contract,

they gave full play to their new theory of agreement in directing the

ulterior stages of the proceeding. But, when they had proceeded thus

far, it was inevitable that they should proceed farther. The

revolution of the ancient law of Contract was consummated when the

Praetor of some one year announced in his Edict that he would grant

equitable actions upon Pacts which had never been matured at all into

Contracts, provided only that the Pacts in question had been founded

on a consideration (_causa_). Pacts of this sort are always enforced

under the advanced Roman jurisprudence. The principle is merely the

principle of the Consensual Contract carried to its proper

consequence; and, in fact, if the technical language of the Romans had

been as plastic as their legal theories, these Pacts enforced by the

Praetor would have been styled new Contracts, new Consensual Contracts.

Legal phraseology is, however, the part of the law which is the last

to alter, and the Pacts equitably enforced continued to be designated

simply Praetorian Pacts. It will be remarked that unless there were

consideration for the Pact, it would continue _nude_ so far as the new

jurisprudence was concerned; in order to give it effect, it would be

necessary to convert it by a stipulation into a Verbal Contract.

The extreme importance of this history of Contract, as a safeguard

against almost innumerable delusions, must be my justification for

discussing it at so considerable a length. It gives a complete account

of the march of ideas from one great landmark of jurisprudence to

another. We begin with Nexum, in which a Contract and a Conveyance are

blended, and in which the formalities which accompany the agreement

are even more important than the agreement itself. From the Nexum we

pass to the Stipulation, which is a simplified form of the older

ceremonial. The Literal Contract comes next, and here all formalities

are waived, if proof of the agreement can be supplied from the rigid

observances of a Roman household. In the Real Contract a moral duty is

for the first time recognised, and persons who have joined or

acquiesced in the partial performance of an engagement are forbidden

to repudiate it on account of defects in form. Lastly, the Consensual

Contracts emerge, in which the mental attitude of the contractors is

solely regarded, and external circumstances have no title to notice

except as evidence of the inward undertaking. It is of course

uncertain how far this progress of Roman ideas from a gross to a

refined conception exemplifies the necessary progress of human thought

on the subject of Contract. The Contract-law of all other ancient

societies but the Roman is either too scanty to furnish information,

or else is entirely lost; and modern jurisprudence is so thoroughly

leavened with the Roman notions that it furnishes us with no contrasts

or parallels from which instruction can be gleaned. From the absence,

however, of everything violent, marvellous, or unintelligible in the

changes I have described, it may be reasonably believed that the

history of ancient Roman Contracts is, up to a certain point, typical

of the history of this class of legal conceptions in other ancient

societies. But it is only up to a certain point that the progress of

Roman law can be taken to represent the progress of other systems of

jurisprudence. The theory of Natural law is exclusively Roman. The

notion of the _vinculum juris_, so far as my knowledge extends, is

exclusively Roman. The many peculiarities of the mature Roman law of

Contract and Delict which are traceable to these two ideas, whether

singly or in combination, are therefore among the exclusive products

of one particular society. These later legal conceptions are

important, not because they typify the necessary results of advancing

thought under all conditions, but because they have exercised

perfectly enormous influence on the intellectual diathesis of the

modern world.

I know nothing more wonderful than the variety of sciences to which

Roman law, Roman Contract-law more particularly, has contributed modes

of thought, courses of reasoning, and a technical language. Of the

subjects which have whetted the intellectual appetite of the moderns,

there is scarcely one, except Physics, which has not been filtered

through Roman jurisprudence. The science of pure Metaphysics had,

indeed, rather a Greek than a Roman parentage, but Politics, Moral

Philosophy, and even Theology, found in Roman law not only a vehicle

of expression, but a nidus in which some of their profoundest

inquiries were nourished into maturity. For the purpose of accounting

for this phenomenon, it is not absolutely necessary to discuss the

mysterious relation between words and ideas, or to explain how it is

that the human mind has never grappled with any subject of thought,

unless it has been provided beforehand with a proper store of language

and with an apparatus of appropriate logical methods. It is enough to

remark, that, when the philosophical interests of the Eastern and

Western worlds were separated, the founders of Western thought

belonged to a society which spoke Latin and reflected in Latin. But in

the Western provinces the only language which retained sufficient

precision for philosophical purposes was the language of Roman law,

which by a singular fortune had preserved nearly all the purity of the

Augustan age, while vernacular Latin was degenerating into a dialect

of portentous barbarism. And if Roman jurisprudence supplied the only

means of exactness in speech, still more emphatically did it furnish

the only means of exactness, subtlety, or depth in thought. For at

least three centuries, philosophy and science were without a home in

the West; and though metaphysics and metaphysical theology were

engrossing the mental energies of multitudes of Roman subjects, the

phraseology employed in these ardent inquiries was exclusively Greek,

and their theatre was the Eastern half of the Empire. Sometimes,

indeed, the conclusions of the Eastern disputants became so important

that every man's assent to them, or dissent from them, had to be

recorded, and then the West was introduced to the results of Eastern

controversy, which it generally acquiesced in without interest and

without resistance. Meanwhile, one department of inquiry, difficult

enough for the most laborious, deep enough for the most subtle,

delicate enough for the most refined, had never lost its attractions

for the educated classes of the Western provinces. To the cultivated

citizen of Africa, of Spain, of Gaul and of Northern Italy, it was

jurisprudence, and jurisprudence only, which stood in the place of

poetry and history, of philosophy and science. So far then from there

being anything mysterious in the palpably legal complexion of the

earliest efforts of Western thought it would rather be astonishing if

it had assumed any other hue. I can only express my surprise at the

scantiness of the attention which has been given to the difference

between Western ideas and Eastern, between Western theology and

Eastern, caused by the presence of a new ingredient. It is precisely

because the influence of jurisprudence begins to be powerful that the

foundation of Constantinople and the subsequent separation of the

Western Empire from the Eastern, are epochs in philosophical history.

But continental thinkers are doubtless less capable of appreciating

the importance of this crisis by the very intimacy with which notions

derived from Roman Law are mingled up with every-day ideas.

Englishmen, on the other hand, are blind to it through the monstrous

ignorance to which they condemn themselves of the most plentiful

source of the stream of modern knowledge, of the one intellectual

result of the Roman civilisation. At the same time, an Englishman, who

will be at the pains to familiarise himself with the classical Roman

law, is perhaps, from the very slightness of the interest which his

countrymen have hitherto taken in the subject, a better judge than a

Frenchman or a German of the value of the assertions I have ventured

to make. Anybody who knows what Roman jurisprudence is, as actually

practised by the Romans, and who will observe in what characteristics

the earliest Western theology and philosophy differ from the phases of

thought which preceded them, may be safely left to pronounce what was

the new element which had begun to pervade and govern speculation.

The part of Roman law which has had most extensive influence on

foreign subjects of inquiry has been the law of Obligation, or what

comes nearly to the same thing, of Contract and Delict. The Romans

themselves were not unaware of the offices which the copious and

malleable terminology belonging to this part of their system might be

made to discharge, and this is proved by their employment of the

peculiar adjunct _quasi_ in such expressions as Quasi-Contract and

Quasi-Delict. "Quasi," so used, is exclusively a term of

classification. It has been usual with English critics to identify the

Quasi-contracts with _implied_ contracts, but this is an error, for

implied contracts are true contracts, which quasi-contracts are not.

In implied contracts, acts and circumstances are the symbols of the

same ingredients which are symbolised, in express contracts, by words;

and whether a man employs one set of symbols or the other must be a

matter of indifference so far as concerns the theory of agreement. But

a Quasi-Contract is not a contract at all. The commonest sample of the

class is the relation subsisting between two persons one of whom has

paid money to the other through mistake. The law, consulting the

interests of morality, imposes an obligation on the receiver to

refund, but the very nature of the transaction indicates that it is

not a contract, inasmuch as the Convention, the most essential

ingredient of Contract, is wanting. This word "quasi," prefixed to a

term of Roman law, implies that the conception to which it serves as

an index is connected with the conception with which the comparison is

instituted by a strong superficial analogy or resemblance. It does not

denote that the two conceptions are the same or that they belong to

the same genus. On the contrary, it negatives the notion of an

identity between them; but it points out that they are sufficiently

similar for one to be classed as the sequel to the other, and that the

phraseology taken from one department of law may be transferred to the

other and employed without violent straining in the statement of rules

which would otherwise be imperfectly expressed.

It has been shrewdly remarked, that the confusion between Implied

Contracts, which are true contracts, and Quasi Contracts, which are

not contracts at all, has much in common with the famous error which

attributed political rights and duties to an Original Compact between

the governed and the governor. Long before this theory had clothed

itself in definite shape, the phraseology of Roman contract-law had

been largely drawn upon to describe that reciprocity of rights and

duties which men had always conceived as existing between sovereigns

and subjects. While the world was full of maxims setting forth with

the utmost positiveness the claims of kings to implicit

obedience--maxims which pretended to have had their origin in the New

Testament, but which were really derived from indelible recollections

of the Caesarian despotism--the consciousness of correlative rights

possessed by the governed would have been entirely without the means

of expression if the Roman law of Obligation had not supplied a

language capable of shadowing forth an idea which was as yet

imperfectly developed. The antagonism between the privileges of kings

and their duties to their subjects was never, I believe, lost sight of

since Western history began, but it had interest for few except

speculative writers so long as feudalism continued in vigour, for

feudalism effectually controlled by express customs the exorbitant

theoretical pretensions of most European sovereigns. It is notorious,

however, that as soon as the decay of the Feudal System had thrown the

mediaeval constitutions out of working order, and when the Reformation

had discredited the authority of the Pope, the doctrine of the divine

right of Kings rose immediately into an importance which had never

before attended it. The vogue which it obtained entailed still more

constant resort to the phraseology of Roman law, and a controversy

which had originally worn a theological aspect assumed more and more

the air of a legal disputation. A phenomenon then appeared which has

repeatedly shown itself in the history of opinion. Just when the

argument for monarchical authority rounded itself into the definite

doctrine of Filmer, the phraseology, borrowed from the Law of

Contract, which had been used in defence of the rights of subjects,

crystallised into the theory of an actual original compact between

king and people, a theory which, first in English and afterwards, and

more particularly, in French hands, expanded into a comprehensive

explanation of all the phenomena of society and law. But the only real

connection between political and legal science had consisted in the

last giving to the first the benefit of its peculiarly plastic

terminology. The Roman jurisprudence of Contract had performed for the

relation of sovereign and subject precisely the same service which, in

a humbler sphere, it rendered to the relation of persons bound

together by an obligation of "quasi-contract." It had furnished a body

of words and phrases which approximated with sufficient accuracy to

the ideas which then were from time to time forming on the subject of

political obligation. The doctrine of an Original Compact can never be

put higher than it is placed by Dr. Whewell, when he suggests that,

though unsound, "it may be a _convenient_ form for the expression of

moral truths."

The extensive employment of legal language on political subjects

previously to the invention of the Original Compact, and the powerful

influence which that assumption has exercised subsequently, amply

account for the plentifulness in political science of words and

conceptions, which were the exclusive creation of Roman jurisprudence.

Of their plentifulness in Moral Philosophy a rather different

explanation must be given, inasmuch as ethical writings have laid

Roman law under contribution much more directly than political

speculations, and their authors have been much more conscious of the

extent of their obligation. In speaking of moral philosophy as

extraordinarily indebted to Roman jurisprudence, I must be understood

to intend moral philosophy as understood previously to the break in

its history effected by Kant, that is, as the science of the rules

governing human conduct, of their proper interpretation and of the

limitations to which they are subject. Since the rise of the Critical

Philosophy, moral science has almost wholly lost its older meaning,

and, except where it is preserved under a debased form in the

casuistry still cultivated by Roman Catholic theologians, it seems to

be regarded nearly universally as a branch of ontological inquiry. I

do not know that there is a single contemporary English writer, with

the exception of Dr. Whewell, who understands moral philosophy as it

was understood before it was absorbed by metaphysics and before the

groundwork of its rules came to be a more important consideration than

the rules themselves. So long, however, as ethical science had to do

with the practical regimen of conduct, it was more or less saturated

with Roman law. Like all the great subjects of modern thought, it was

originally incorporated with theology. The science of Moral Theology,

as it was at first called, and as it is still designated by the Roman

Catholic divines, was undoubtedly constructed, to the full knowledge

of its authors, by taking principles of conduct from the system of the

Church, and by using the language and methods of jurisprudence for

their expression and expansion. While this process went on, it was

inevitable that jurisprudence, though merely intended to be the

vehicle of thought, should communicate its colour to the thought

itself. The tinge received through contact with legal conceptions is

perfectly perceptible in the earliest ethical literature of the modern

world, and it is evident, I think, that the Law of Contract, based as

it is on the complete reciprocity and indissoluble connection of

rights and duties, has acted as a wholesome corrective to the

predispositions of writers who, if left to themselves, might have

exclusively viewed a moral obligation as the public duty of a citizen

in the Civitas Dei. But the amount of Roman Law in moral theology

becomes sensibly smaller at the time of its cultivation by the great

Spanish moralists. Moral theology, developed by the juridical method

of doctor commenting on doctor, provided itself with a phraseology of

its own, and Aristotelian peculiarities of reasoning and expression,

imbibed doubtless in great part from the Disputations on Morals in the

academical schools, take the place of that special turn of thought and

speech which can never be mistaken by any person conversant with the

Roman law. If the credit of the Spanish school of moral theologians

had continued, the juridical ingredient in ethical science would have

been insignificant, but the use made of their conclusions by the next

generation of Roman Catholic writers on these subjects almost entirely

destroyed their influence. Moral Theology, degraded into Casuistry,

lost all interest for the leaders of European speculation; and the new

science of Moral Philosophy, which was entirely in the hands of the

Protestants, swerved greatly aside from the path which the moral

theologians had followed. The effect was vastly to increase the

influence of Roman law on ethical inquiry.

Shortly[5] after the Reformation, we find two great schools of

thought dividing this class of subjects between them. The most

influential of the two was at first the sect of school known to us as

the Casuists, all of them in spiritual communion with the Roman

Catholic Church, and nearly all of them affiliated to one or other of

her religious orders. On the other side were a body of writers

connected with each other by a common intellectual descent from the

great author of the treatise _De Jure Belli et Pacis_, Hugo Grotius.

Almost all of the latter were adherents of the Reformation, and

though it cannot be said that they were formally and avowedly at

conflict with the Casuists, the origin and object of their system were

nevertheless essentially different from those of Casuistry. It is

necessary to call attention to this difference, because it involves

the question of the influence of Roman law on that department of

thought with which both systems are concerned. The book of Grotius,

though it touches questions of pure Ethics in every page, and though

it is the parent immediate or remote of innumerable volumes of formal

morality, is not, as is well known, a professed treatise on Moral

Philosophy; it is an attempt to determine the Law of Nature, or

Natural Law. Now, without entering upon the question, whether the

conception of a Law Natural be not exclusively a creation of the Roman

jurisconsults, we may lay down that, even on the admission of Grotius

himself, the dicta of the Roman jurisprudence as to what parts of

known positive law must be taken to be parts of the Law of Nature,

are, if not infallible, to be received at all events with the

profoundest respect. Hence the system of Grotius is implicated with

Roman law at its very foundation, and this connection rendered

inevitable--what the legal training of the writer would perhaps have

entailed without it--the free employment in every paragraph of

technical phraseology, and of modes of reasoning, defining, and

illustrating, which must sometimes conceal the sense, and almost

always the force and cogency, of the argument from the reader who is

unfamiliar with the sources whence they have been derived. On the

other hand, Casuistry borrows little from Roman law, and the views of

morality contended for have nothing whatever in common with the

undertaking of Grotius. All that philosophy of right and wrong which

has become famous, or infamous, under the name of Casuistry, had its

origin in the distinction between Mortal and Venial Sin. A natural

anxiety to escape the awful consequences of determining a particular

act to be mortally sinful, and a desire, equally intelligible, to

assist the Roman Catholic Church in its conflict with Protestantism by

disburthening it of an inconvenient theory, were the motives which

impelled the authors of the Casuistical philosophy to the invention of

an elaborate system of criteria, intended to remove immoral actions,

in as many cases as possible, out of the category of mortal offences,

and to stamp them as venial sins. The fate of this experiment is

matter of ordinary history. We know that the distinctions of

Casuistry, by enabling the priesthood to adjust spiritual control to

all the varieties of human character, did really confer on it an

influence with princes, statesmen, and generals, unheard of in the

ages before the Reformation, and did really contribute largely to that

great reaction which checked and narrowed the first successes of

Protestantism. But beginning in the attempt, not to establish, but to

evade--not to discover a principle, but to escape a postulate--not to

settle the nature of right and wrong, but to determine what was not

wrong of a particular nature,--Casuistry went on with its dexterous

refinements till it ended in so attenuating the moral features of

actions, and so belying the moral instincts of our being, that at

length the conscience of mankind rose suddenly in revolt against it,

and consigned to one common ruin the system and its doctors. The blow,

long pending, was finally struck in the _Provincial Letters_ of

Pascal, and since the appearance of those memorable Papers, no

moralist of the smallest influence or credit has ever avowedly

conducted his speculations in the footsteps of the Casuists. The whole

field of ethical science was thus left at the exclusive command of the

writers who followed Grotius; and it still exhibits in an

extraordinary degree the traces of that entanglement with Roman law

which is sometimes imputed as a fault, and sometimes the highest of

its recommendations, to the Grotian theory. Many inquirers since

Grotius's day have modified his principles, and many, of course, since

the rise of the Critical Philosophy, have quite deserted them; but

even those who have departed most widely from his fundamental

assumptions have inherited much of his method of statement, of his

train of thought, and of his mode of illustration; and these have

little meaning and no point to the person ignorant of Roman jurisprudence.

I have already said that, with the exception of the physical sciences,

there is no walk of knowledge which has been so slightly affected by

Roman law as Metaphysics. The reason is that discussion on

metaphysical subjects has always been conducted in Greek, first in

pure Greek, and afterwards in a dialect of Latin expressly constructed

to give expression to Greek conceptions. The modern languages have

only been fitted to metaphysical inquiries by adopting this Latin

dialect, or by imitating the process which was originally followed in

its formation. The source of the phraseology which has been always

employed for metaphysical discussion in modern times was the Latin

translations of Aristotle, in which, whether derived or not from

Arabic versions, the plan of the translator was not to seek for

analogous expressions in any part of Latin literature, but to

construct anew from Latin roots a set of phrases equal to the

expression of Greek philosophical ideas. Over such a process the

terminology of Roman law can have exercised little influence; at most,

a few Latin law terms in a transmuted shape have made their way into

metaphysical language. At the same time it is worthy of remark that

whenever the problems of metaphysics are those which have been most

strongly agitated in Western Europe, the thought, if not the language,

betrays a legal parentage. Few things in the history of speculation

are more impressive than the fact that no Greek-speaking people has

ever felt itself seriously perplexed by the great question of

Free-will and Necessity. I do not pretend to offer any summary

explanation of this, but it does not seem an irrelevant suggestion

that neither the Greeks, nor any society speaking and thinking in

their language, ever showed the smallest capacity for producing a

philosophy of law. Legal science is a Roman creation, and the problem

of Free-will arises when we contemplate a metaphysical conception

under a legal aspect. How came it to be a question whether invariable

sequence was identical with necessary connection? I can only say that

the tendency of Roman law, which became stronger as it advanced, was

to look upon legal consequences as united to legal causes by an

inexorable necessity, a tendency most markedly exemplified in the

definition of Obligation which I have repeatedly cited, "Juris

vinculum quo necessitate adstringimur alicujus solvendae rei."

But the problem of Free-will was theological before it became

philosophical, and, if its terms have been affected by jurisprudence,

it will be because Jurisprudence had made itself felt in Theology. The

great point of inquiry which is here suggested has never been

satisfactorily elucidated. What has to be determined, is whether

jurisprudence has ever served as the medium through which theological

principles have been viewed; whether, by supplying a peculiar

language, a peculiar mode of reasoning, and a peculiar solution of

many of the problems of life, it has ever opened new channels in

which theological speculation could flow out and expand itself. For

the purpose of giving an answer it is necessary to recollect what is

already agreed upon by the best writers as to the intellectual food

which theology first assimilated. It is conceded on all sides that the

earliest language of the Christian Church was Greek, and that the

problems to which it first addressed itself were those for which Greek

philosophy in its later forms had prepared the way. Greek metaphysical

literature contained the sole stock of words and ideas out of which

the human mind could provide itself with the means of engaging in the

profound controversies as to the Divine Persons, the Divine Substance,

and the Divine Natures. The Latin language and the meagre Latin

philosophy were quite unequal to the undertaking, and accordingly the

Western or Latin-speaking provinces of the Empire adopted the

conclusions of the East without disputing or reviewing them. "Latin

Christianity," says Dean Milman, "accepted the creed which its narrow

and barren vocabulary could hardly express in adequate terms. Yet,

throughout, the adhesion of Rome and the West was a passive

acquiescence in the dogmatic system which had been wrought out by the

profounder theology of the Eastern divines, rather than a vigorous and

original examination on her part of those mysteries. The Latin Church

was the scholar as well as the loyal partizan of Athanasius." But when

the separation of East and West became wider, and the Latin-speaking

Western Empire began to live with an intellectual life of its own, its

deference to the East was all at once exchanged for the agitation of a

number of questions entirely foreign to Eastern speculation. "While

Greek theology (Milman, _Latin Christianity_, Preface, 5) went on

defining with still more exquisite subtlety the Godhead and the nature

of Christ"--"while the interminable controversy still lengthened out

and cast forth sect after sect from the enfeebled community"--the

Western Church threw itself with passionate ardour into a new order of

disputes, the same which from those days to this have never lost their

interest for any family of mankind at any time included in the Latin

communion. The nature of Sin and its transmission by inheritance--the

debt owed by man and its vicarious satisfaction--the necessity and

sufficiency of the Atonement--above all the apparent antagonism

between Free-will and the Divine Providence--these were the points

which the West began to debate as ardently as ever the East had

discussed the articles of its more special creed. Why is it then that

on the two sides of the line which divides the Greek-speaking from the

Latin-speaking provinces there lie two classes of theological problems

so strikingly different from one another? The historians of the Church

have come close upon the solution when they remark that the new

problems were more "practical," less absolutely speculative, than

those which had torn Eastern Christianity asunder, but none of them,

so far as I am aware, has quite reached it. I affirm without

hesitation that the difference between the two theological systems is

accounted for by the fact that, in passing from the East to the West,

theological speculation had passed from a climate of Greek metaphysics

to a climate of Roman law. For some centuries before these

controversies rose into overwhelming importance, all the intellectual

activity of the Western Romans had been expended on jurisprudence

exclusively. They had been occupied in applying a peculiar set of

principles to all the combinations in which the circumstances of life

are capable of being arranged. No foreign pursuit or taste called off

their attention from this engrossing occupation, and for carrying it

on they possessed a vocabulary as accurate as it was copious, a strict

method of reasoning, a stock of general propositions on conduct more

or less verified by experience, and a rigid moral philosophy. It was

impossible that they should not select from the questions indicated by

the Christian records those which had some affinity with the order of

speculations to which they were accustomed, and that their manner of

dealing with them should borrow something from their forensic habits.

Almost everybody who has knowledge enough of Roman law to appreciate

the Roman penal system, the Roman theory of the obligations

established by Contract or Delict, the Roman view of Debts and of the

modes of incurring, extinguishing, and transmitting them, the Roman

notion of the continuance of individual existence by Universal

Succession, may be trusted to say whence arose the frame of mind to

which the problems of Western theology proved so congenial, whence

came the phraseology in which these problems were stated, and whence

the description of reasoning employed in their solution. It must only

be recollected that Roman law which had worked itself into Western

thought was neither the archaic system of the ancient city, nor the

pruned and curtailed jurisprudence of the Byzantine Emperors; still

less, of course, was it the mass of rules, nearly buried in a

parasitical overgrowth of modern speculative doctrine, which passes by

the name of Modern Civil Law. I speak only of that philosophy of

jurisprudence, wrought out by the great juridical thinkers of the

Antonine age, which may still be partially reproduced from the

Pandects of Justinian, a system to which few faults can be attributed

except it perhaps aimed at a higher degree of elegance, certainty, and

precision, than human affairs will permit to the limits within which

human laws seek to confine them.

It is a singular result of that ignorance of Roman law which

Englishmen readily confess, and of which they are sometimes not

ashamed to boast, that many English writers of note and credit have

been led by it to put forward the most untenable of paradoxes

concerning the condition of human intellect during the Roman Empire.

It has been constantly asserted, as unhesitatingly as if there were no

temerity in advancing the proposition, that from the close of the

Augustan era to the general awakening of interest on the points of the

Christian faith, the mental energies of the civilised world were

smitten with a paralysis. Now there are two subjects of thought--the

only two perhaps with the exception of physical science--which are

able to give employment to all the powers and capacities which the

mind possesses. One of them is Metaphysical inquiry, which knows no

limits so long as the mind is satisfied to work on itself; the other

is Law, which is as extensive as the concerns of mankind. It happens

that, during the very period indicated, the Greek-speaking provinces

were devoted to one, the Latin-speaking provinces to the other, of

these studies. I say nothing of the fruits of speculation in

Alexandria and the East, but I confidently affirm that Rome and the

West had an occupation in hand fully capable of compensating them for

the absence of every other mental exercise, and I add that the results

achieved, so far as we know them, were not unworthy of the continuous

and exclusive labour bestowed on producing them. Nobody except a

professional lawyer is perhaps in a position completely to understand

how much of the intellectual strength of individuals Law is capable of

absorbing, but a layman has no difficulty in comprehending why it was

that an unusual share of the collective intellect of Rome was

engrossed by jurisprudence. "The proficiency[6] of a given community

in jurisprudence depends in the long run on the same conditions as its

progress in any other line of inquiry; and the chief of these are the

proportion of the national intellect devoted to it, and the length of

time during which it is so devoted. Now, a combination of all the

causes, direct and indirect, which contribute to the advancing and

perfecting of a science continued to operate on the jurisprudence of

Rome through the entire space between the Twelve Tables and the

severance of the two Empires,--and that not irregularly or at

intervals, but in steadily increasing force and constantly augmenting

number. We should reflect that the earliest intellectual exercise to

which a young nation devotes itself is the study of its laws. As soon

as the mind makes its first conscious efforts towards generalisation,

the concerns of every-day life are the first to press for inclusion

within general rules and comprehensive formulas. The popularity of the

pursuit on which all the energies of the young commonwealth are bent

is at the outset unbounded; but it ceases in time. The monopoly of

mind by law is broken down. The crowd at the morning audience of the

great Roman jurisconsult lessens. The students are counted by hundreds

instead of thousands in the English Inns of Court. Art, Literature,

Science, and Politics, claim their share of the national intellect;

and the practice of jurisprudence is confined within the circle of a

profession, never indeed limited or insignificant, but attracted as

much by the rewards as by the intrinsic recommendations of their

science. This succession of changes exhibited itself even more

strikingly at Rome than in England. To the close of the Republic the

law was the sole field for all ability except the special talent of a

capacity for generalship. But a new stage of intellectual progress

began with the Augustan age, as it did with our own Elizabethan era.

We all know what were its achievements in poetry and prose; but there

are some indications, it should be remarked, that, besides its

efflorescence in ornamental literature, it was on the eve of throwing

out new aptitudes for conquest in physical science. Here, however, is

the point at which the history of mind in the Roman State ceases to

be parallel to the routes which mental progress had since then

pursued. The brief span of Roman literature, strictly so called, was

suddenly closed under a variety of influences, which though they may

partially be traced it would be improper in this place to analyse.

Ancient intellect was forcibly thrust back into its old courses, and

law again became no less exclusively the proper sphere for talent than

it had been in the days when the Romans despised philosophy and poetry

as the toys of a childish race. Of what nature were the external

inducements which, during the Imperial period, tended to draw a man of

inherent capacity to the pursuits of the jurisconsult may best be

understood by considering the option which was practically before him

in his choice of a profession. He might become a teacher of rhetoric,

a commander of frontier-posts, or a professional writer of panegyrics.

The only other walk of active life which was open to him was the

practice of the law. Through _that_ lay the approach to wealth, to

fame, to office, to the council-chamber of the monarch--it may be to

the very throne itself."

The premium on the study of jurisprudence was so enormous that there

were schools of law in every part of the Empire, even in the very

domain of Metaphysics. But, though the transfer of the seat of empire

to Byzantium gave a perceptible impetus to its cultivation in the

East, jurisprudence never dethroned the pursuits which there competed

with it. Its language was Latin, an exotic dialect in the Eastern half

of the Empire. It is only of the West that we can lay down that law

was not only the mental food of the ambitious and aspiring, but the

sole aliment of all intellectual activity. Greek philosophy had never

been more than a transient fashionable taste with the educated class

of Rome itself, and when the new Eastern capital had been created, and

the Empire subsequently divided into two, the divorce of the Western

provinces from Greek speculation, and their exclusive devotion to

jurisprudence, became more decided than ever. As soon then as they

ceased to sit at the feet of the Greeks and began to ponder out a

theology of their own, the theology proved to be permeated with

forensic ideas and couched in a forensic phraseology. It is certain

that this substratum of law in Western theology lies exceedingly deep.

A new set of Greek theories, the Aristotelian philosophy, made

their way afterwards into the West and almost entirely buried its

indigenous doctrines. But when at the Reformation it partially shook

itself free from their influence, it instantly supplied their place

with Law. It is difficult to say whether the religious system of

Calvin or the religious system of the Arminians has the more markedly

legal character.

The vast influence of the specific jurisprudence of Contract produced

by the Romans upon the corresponding department of modern Law belongs

rather to the history of mature jurisprudence than to a treatise like

the present. It did not make itself felt till the school of Bologna

founded the legal science of modern Europe. But the fact that the

Romans, before their Empire fell, had so fully developed the

conception of Contract becomes of importance at a much earlier period

than this. Feudalism, I have repeatedly asserted, was a compound of

archaic barbarian usage with Roman law; no other explanation of it is

tenable, or even intelligible. The earliest social forms of the feudal

period differ in little from the ordinary associations in which the

men of primitive civilisations are everywhere seen united. A Fief was

an organically complete brotherhood of associates whose proprietary

and personal rights were inextricably blended together. It had much in

common with an Indian Village Community and much in common with a

Highland clan. But still it presents some phenomena which we never

find in the associations which are spontaneously formed by beginners

in civilisation. True archaic communities are held together not by

express rules, but by sentiment, or, we should perhaps say, by

instinct; and new comers into the brotherhood are brought within the

range of this instinct by falsely pretending to share in the

blood-relationship from which it naturally springs. But the earliest

feudal communities were neither bound together by mere sentiment nor

recruited by a fiction. The tie which united them was Contract, and

they obtained new associates by contracting with them. The relation of

the lord to the vassals had originally been settled by express

engagement, and a person wishing to engraft himself on the brotherhood

by _commendation_ or _infeudation_ came to a distinct understanding as

to the conditions on which he was to be admitted. It is therefore the

sphere occupied in them by Contract which principally distinguishes

the feudal institutions from the unadulterated usages of primitive

races. The lord had many of the characteristics of a patriarchal

chieftain, but his prerogative was limited by a variety of settled

customs traceable to the express conditions which had been agreed upon

when the infeudation took place. Hence flow the chief differences

which forbid us to class the feudal societies with true archaic

communities. They were much more durable and much more various; more

durable, because express rules are less destructible than instinctive

habits, and more various, because the contracts on which they were

founded were adjusted to the minutest circumstances and wishes of the

persons who surrendered or granted away their lands. This last

consideration may serve to indicate how greatly the vulgar opinions

current among us as to the origin of modern society stand in need of

revision. It is often said that the irregular and various contour of

modern civilisation is due to the exuberant and erratic genius of the

Germanic races, and it is often contrasted with the dull routine of

the Roman Empire. The truth is that the Empire bequeathed to modern

society the legal conception to which all this irregularity is

attributable; if the customs and institutions of barbarians have one

characteristic more striking than another, it is their extreme

uniformity.

[5] The passage quoted is transcribed with slight

alterations from a paper contributed by the author to

the _Cambridge Essays_ for 1856.

[6] _Cambridge Essays_, 1856.