Ancient Law Part 6

But, though all this must be allowed, there are several considerations which render it unlikely that the feudal form of ownership was directly suggested by the Roman duplication of domainial rights. The distinction between legal and equitable property strikes one as a subtlety little likely to be appreciated by barbarians; and, moreover, it can scarcely be understood unless Courts of Law are contemplated in regular operation. But the strongest reason against this theory is the existence in Roman Law of a form of property--a creation of Equity, it is true--which supplies a much simpler explanation of the transition from one set of ideas to the other. This is the Emphyteusis, upon which the Fief of the middle ages has often been fathered, though without much knowledge of the exact share which it had in bringing feudal ownership into the world. The truth is that the Emphyteusis, not probably as yet known by its Greek designation, marks one stage in a current of ideas which led ultimately to feudalism. The first mention in Roman history of estates larger than could be farmed by a Paterfamilias, with his household of sons and slaves, occurs when we come to the holdings of the Roman patricians. These great proprietors appear to have had no idea of any system of farming by free tenants.

Their _latifundia_ seem to have been universally cultivated by slave-gangs, under bailiffs who were themselves slaves or freedmen; and the only organisation attempted appears to have consisted in dividing the inferior slaves into small bodies, and making them the _peculium_ of the better and trustier sort, who thus acquired a kind of interest in the efficiency of their labour. This system was, however, especially disadvantageous to one cla.s.s of estated proprietors, the Munic.i.p.alities. Functionaries in Italy were changed with the rapidity which often surprises us in the administration of Rome herself; so that the superintendence of a large landed domain by an Italian corporation must have been excessively imperfect.

Accordingly, we are told that with the munic.i.p.alities began the practice of letting out _agri vectigules_, that is, of leasing land for a perpetuity to a free tenant, at a fixed rent, and under certain conditions. The plan was afterwards extensively imitated by individual proprietors, and the tenant, whose relation to the owner had originally been determined by his contract, was subsequently recognised by the Praetor as having himself a qualified proprietorship, which in time became known as an Emphyteusis. From this point the history of tenure parts into two branches. In the course of that long period during which our records of the Roman Empire are most incomplete, the slave-gangs of the great Roman families became transformed into the _coloni_, whose origin and situation const.i.tute one of the obscurest questions in all history. We may suspect that they were formed partly by the elevation of the slaves, and partly by the degradation of the free farmers; and that they prove the richer cla.s.ses of the Roman Empire to have become aware of the increased value which landed property obtains when the cultivator had an interest in the produce of the land. We know that their servitude was predial; that it wanted many of the characteristics of absolute slavery, and that they acquitted their service to the landlord in rendering to him a fixed portion of the annual crop. We know further that they survived all the mutations of society in the ancient and modern worlds. Though included in the lower courses of the feudal structure, they continued in many countries to render to the landlord precisely the same dues which they had paid to the Roman _dominus_, and from a particular cla.s.s among them, the _coloni medietarii_ who reserved half the produce for the owner, are descended the _metayer_ tenantry, who still conduct the cultivation of the soil in almost all the South of Europe. On the other hand, the Emphyteusis, if we may so interpret the allusions to it in the _Corpus Juris_, became a favourite and beneficial modification of property; and it may be conjectured that wherever free farmers existed, it was this tenure which regulated their interest in the land. The Praetor, as has been said, treated the Emphyteuta as a true proprietor. When ejected, he was allowed to reinstate himself by a Real Action, the distinctive badge of proprietory right, and he was protected from disturbance by the author of his lease so long as the _canon_, or quit-rent, was punctually paid. But at the same time it must not be supposed that the ownership of the author of the lease was either extinct or dormant. It was kept alive by a power of re-entry on nonpayment of the rent, a right of pre-emption in case of sale, and a certain control over the mode of cultivation. We have, therefore, in the Emphyteusis a striking example of the double ownership which characterised feudal property, and one, moreover, which is much simpler and much more easily imitated than the juxtaposition of legal and equitable rights. The history of the Roman tenure does not end, however, at this point. We have clear evidence that between the great fortresses which, disposed along the line of the Rhine and Danube, long secured the frontier of the Empire against its barbarian neighbours, there extended a succession of strips of land, the _agri limitrophi_, which were occupied by veteran soldiers of the Roman army on the terms of an Emphyteusis. There was a double ownership. The Roman State was landlord of the soil, but the soldiers cultivated it without disturbance so long as they held themselves ready to be called out for military service whenever the state of the border should require it. In fact, a sort of garrison-duty, under a system closely resembling that of the military colonies on the Austro-Turkish border, had taken the place of the quit-rent which was the service of the ordinary Emphyteuta. It seems impossible to doubt that this was the precedent copied by the barbarian monarchs who founded feudalism. It had been within their view for some hundred years, and many of the veterans who guarded the border were, it is to be remembered, themselves of barbarian extraction, who probably spoke the Germanic tongues. Not only does the proximity of so easily followed a model explain whence the Frankish and Lombard Sovereigns got the idea of securing the military service of their followers by granting away portions of their public domain; but it perhaps explains the tendency which immediately showed itself in the Benefices to become hereditary, for an Emphyteusis, though capable of being moulded to the terms of the original contract, nevertheless descended as a general rule to the heirs of the grantee.

It is true that the holder of a benefice, and more recently the lord of one of those fiefs into which the benefices were transformed, appears to have owed certain services which were not likely to have been rendered by the military colonist, and were certainly not rendered by the Emphyteuta. The duty of respect and grat.i.tude to the feudal superior, the obligation to a.s.sist in endowing his daughter and equipping his son, the liability to his guardianship in minority, and many other similar incidents of tenure, must have been literally borrowed from the relations of Patron and Freedman under Roman law, that is, of quondam-master and quondam-slave. But then it is known that the earliest beneficiaries were the personal companions of the sovereign, and it is indisputable that this position, brilliant as it seems, was at first attended by some shade of servile debas.e.m.e.nt. The person who ministered to the Sovereign in his Court had given up something of that absolute personal freedom which was the proudest privilege of the allodial proprietor.

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 a.s.sertion 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 un.o.bservant 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 pa.s.sionate 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 inst.i.tutions, 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 ent.i.tled 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 acc.u.mulated 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 a.s.semblage 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 pa.s.s 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 ent.i.tled 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 mult.i.tude. To begin with the views of the Roman lawyers, we find them inconsistent with the true history of moral and legal progress. One cla.s.s 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 a.s.sumed by the error we are discussing. It is a theory which, though nursed into importance by political pa.s.sions, 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 const.i.tuents 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 superst.i.tions. 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 a.n.a.lysis of society as it exists and moves before our eyes; but, through omitting to call in the a.s.sistance of history, this a.n.a.lysis 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 const.i.tution 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 ent.i.tled 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 enc.u.mbered 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 dest.i.tute 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 a.n.a.lysis which mature jurisprudence applies to the conditions of mind under which a particular verbal a.s.sent 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 trans.m.u.tation 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 sh.e.l.l 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 Manc.i.p.ation, 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.

Manc.i.p.ation 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 a.n.a.lyst 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 embarra.s.sments, 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 _ma.n.u.s_ enters, that the ancient general term was _ma.n.u.s_. 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 _ma.n.u.s_. 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 Manc.i.p.ation. 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 n.o.body 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 enc.u.mbrance of the nominal manc.i.p.ation, 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 a.s.sistant, 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 pa.s.sed 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 a.s.sociation 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 a.s.sociation between this word and the notion of a Contract, that a special term, Mancipium or Manc.i.p.atio, 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 pa.s.sed through in this interval, it is necessary to trespa.s.s a little on a subject which lies properly beyond the range of these pages, the a.n.a.lysis of Agreement effected by the Roman jurisconsults. Of this a.n.a.lysis, 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 cla.s.sed 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 cla.s.sification. 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 cla.s.sification 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 const.i.tuted 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 cla.s.s 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 Inst.i.tutional 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 const.i.tuted 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 trans.m.u.ted 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 a.n.a.logous 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 const.i.tute 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 inst.i.tution 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 a.s.sent 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 ill.u.s.trated by referring to the actual examples in the pages of the Latin comic dramatists. If the entire scenes are read down in which these pa.s.sages 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 cla.s.s, 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 a.s.serted 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 a.s.sent 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 a.s.sent 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 a.n.a.logous 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 inc.u.mbrance, 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 a.s.sent. 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 a.s.sured. 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 const.i.tuted the stage in the history of Contract-law from which all modern conceptions of contract took their start. The motion of the will which const.i.tutes 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 cla.s.sed in the Jus Gentium, and it was not long before this cla.s.sification 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 circ.u.mstance 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 n.o.body 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 reb.u.t.ted 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 pa.s.s 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 att.i.tude of the contractors is solely regarded, and external circ.u.mstances have no t.i.tle 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 cla.s.s 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 appet.i.te 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 mult.i.tudes 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 a.s.sent 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 cla.s.ses 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 a.s.sumed 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 cla.s.sical 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 a.s.sertions 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 p.r.o.nounce 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 cla.s.sification. 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 circ.u.mstances 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 cla.s.s 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 w