Ancient Law by Henry Maine Chapter 9

Ancient Law
by Henry Maine

Chapter 9

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 everchanging 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 truth 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
inclusion 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 member 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
member 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 appear 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 enter, 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 other 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 revered, 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
enfording 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 tablebook 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 juris prudence; 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 or 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 or 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 deliver 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 rounded 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,. the of
everything violent, marvellous, or unintelligible in 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 Physic, which has not been Altered 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 metaphysic 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 characteristic 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
Cesarian 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 medieval
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 person 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 takin
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(1*) 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 writer 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 (2*) 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 aptitude 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 juris prudence
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 art 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.

NOTES:

1. The passage quoted is transcribed with slight alterations from
a paper contributed by the author to the Cambridge Essays for
1856.

2. Cambridge Essays, 1856.