Chapter 8
 
The Early History of Property
 
    The Roman Institutional Treatises, after giving their
definition of the various forms and modifications of ownership,
proceed to discuss the Natural Modes of Acquiring Property. Those
who are unfamiliar with the history of jurisprudence are not
likely to look upon these "natural modes" of acquisition as
possessing, at first sight, either much speculative or much
practical interest. The wild animal which is snared or killed by
the hunter, the soil which is added to our field by the
imperceptible deposits of a river, the tree which strikes its
roots into our ground, are each said by the Roman lawyers to be
acquired by us naturally. The older jurisconsults had doubtless
observed that such acquisitions were universally sanctioned by
the usages of the little societies around them, and thus the
lawyers of a later age, finding them classed in the ancient Jus
Gentium, and perceiving them to be of the simplest description,
allotted them a place among the ordinances of Nature. The dignity
with which they were invested has gone on increasing in modern
times till it is quite out of proportion to their original
importance. Theory has made them its favourite food, and has
enabled them to exercise the most serious influence on practice. 
    It will be necessary for us to attend to one only among these
"natural modes of acquisition," Occupatio or Occupancy. Occupancy
is the advisedly taking possession of that which at the moment is
the property of no man, with the view (adds the technical
definition) of acquiring property in it for yourself. The objects
which the Roman lawyers called res nullius  -- things which have
not or have never had an owner -- can only be ascertained by
enumerating them. Among things which never had an owner are wild
animals, fishes, wild fowl, jewels disinterred for the first
time, and lands newly discovered or never before cultivated.
Among things which have not an owner are moveables which have
been abandoned, lands which have been deserted, and (an anomalous
but most formidable item) the property of an enemy. In all these
objects the full rights of dominion were acquired by the
Occupant, who first took possession of them with the intention of
keeping them as his own -- an intention which, in certain cases,
had to be manifested by specific acts. It is not difficult, I
think, to understand the universality which caused the practice
of Occupancy to be placed by one generation of Roman lawyers in
the Law common to all Nations, and the simplicity which
occasioned its being attributed by another to the Law of Nature.
But for its fortunes in modern legal history we are less prepared
by a priori considerations. The Roman principle of Occupancy, and
the rules into which the jurisconsults expanded it, are the
source of all modern International Law on the subject of Capture
in War and of the acquisition of sovereign rights in newly
discovered countries. They have also supplied a theory of the
Origin of Property, which is at once the popular theory, and the
theory which, in one form or another, is acquiesced in by the
great majority of speculative jurists. 
    I have said that the Roman principle of Occupancy has
determined the tenor of that chapter of International Law which
is concerned with Capture in War. The Law of Warlike Capture
derives its rules from the assumption that communities are
remitted to a state of nature by the outbreak of hostilities, and
that, in the artificial natural condition thus produced, the
institution of private property falls into abeyance so far as
concerns the belligerents. As the later writers on the Law of
Nature have always been anxious to maintain that private property
was in some sense sanctioned by the system which they were
expounding, the hypothesis that an enemy's property is res
nullius has seemed to them perverse and shocking, and they are
careful to stigmatise it as a mere fiction of jurisprudence. But,
as soon as the Law of Nature is traced to its source in the Jus
Gentium, we see at once how the goods of an enemy came to be
looked upon as nobody's property, and therefore as capable of
being acquired by the first occupant. The idea would occur
spontaneously to persons practising the ancient forms of Warfare,
when victory dissolved the organisation of the conquering army
and dismissed the soldiers to indiscriminate plunder. It is
probable, however, that originally it was only moveable property
which was thus permitted to be acquired by the Captor. We know on
independent authority that a very different rule prevailed in
ancient 

Italy

 as to the acquisition of ownership in the soil of a
conquered country, and we may therefore suspect that the
application of the principle of occupancy to land (always a
matter of difficulty) dates from the period when the Jus Gentium
was becoming the Code of Nature, and that it is the result of a
generalisation effected by the jurisconsults of the golden age.
Their dogmas on the point are preserved in the Pandects of
Justinian, and amount to an unqualified assertion that enemy's
property of every sort is res nullius to the other belligerent,
and that Occupancy, by which the Captor makes them his own, is an
institution of Natural Law. The rules which International
jurisprudence derives from these positions have sometimes been
stigmatised as needlessly indulgent to the ferocity and cupidity
of combatants, but the charge has been made, I think, by persons
who are unacquainted with the history of wars, and who are
consequently ignorant how great an exploit it is to command
obedience for a rule of any kind. The Roman principle of
Occupancy, when it was admitted into the modern law of Capture in
War, drew with it a number of subordinate canons, limiting and
giving precision to its operation, and if the contests which have
been waged since the treatise of Grotius became an authority, are
compared with those of an earlier date, it will be seen that, as
soon as the Roman maxims were received, Warfare instantly assumed
a more tolerable complexion. If the Roman law of Occupancy is to
be taxed with having had pernicious influence on any part of the
modern Law of Nations, there is another chapter in it which may
be said, with some reason, to have been injuriously affected. In
applying to the discovery of new countries the same principles
which the Romans had applied to the finding of a jewel, the
Publicists forced into their service a doctrine altogether
unequal to the task expected from it. Elevated into extreme
importance by the discoveries of the great navigator of the
fifteenth and sixteenth centuries, it raised more disputes than
it solved. The greatest uncertainty was very shortly found to
exist on the very two points on which certainty was most
required, the extent of the territory which was acquired for his
sovereign by the discoverer, and the nature of the acts which
were necessary to complete the ad prehensio or assumption of
sovereign possession. Moreover, the principle itself, conferring
as it did such enormous advantages as the consequence of a piece
of good luck, was instinctively mutinied against by some of the
most adventurous nations in 
Europe
, the Dutch, the English, and
the Portuguese. Our own countrymen, without expressly denying the
rule of International Law, never did, in practice, admit the
claim of the Spaniards to engross the whole of 

America

 south of
the 
Gulf of Mexico
, or that of the King of France to monopolise
the valleys of the 

Ohio

 and the 

Mississippi

. From the accession
of 

Elizabeth

 to the accession of Charles the Second, it cannot be
said that there was at any time thorough peace in the American
waters, and the encroachments of the New England Colonists on the
territory of the French King continued for almost a century
longer. Bentham was so struck with the confusion attending the
application of the legal principle, that he went out of his way
to eulogise the famous Bull of Pope Alexander the Sixth, dividing
the undiscovered countries of the world between the Spaniards and
Portuguese by a line drawn one hundred leagues West of the

Azores
; and, grotesque as his praises may appear at first sight,
it may be doubted whether the arrangement of Pope Alexander is
absurder in principle than the rule of Public law, which gave
half a continent to the monarch whose servants had fulfilled the
conditions required by Roman jurisprudence for the acquisition of
property in a valuable object which could be covered by the hand.

 
    To all who pursue the inquiries which are the subject of this
volume Occupancy is pre-eminently interesting on the score of the
service it has been made to perform for speculative
jurisprudence, in furnishing a supposed explanation of the origin
of private property It was once universally believed that the
proceeding implied in Occupancy was identical with the process by
which the earth and its fruits, which were at first in common,
became the allowed property of individuals. The course of thought
which led to this assumption is not difficult to understand, if
we seize the shade of difference which separates the ancient from
the modern conception of Natural Law. The Roman lawyers had laid
down that Occupancy was one of the Natural modes of acquiring
property, and they undoubtedly believed that, were mankind living
under the institutions of Nature, Occupancy would be one of their
practices. How far they persuaded themselves that such a
condition of the race had ever existed, is a point, as I have
already stated, which their language leaves in much uncertainty;
but they certainly do seem to have made the conjecture, which has
at all times possessed much plausibility, that the institution of
property was not so old as the existence of mankind. Modem
jurisprudence, accepting all their dogmas without reservation,
went far beyond them in the eager curiosity with which it dwelt
on the supposed state of Nature. Since then it had received the
position that the earth and its fruits were once res nullius, and
since its peculiar view of Nature led it to assume without
hesitation that the human race had actually practised the
Occupancy of res nullius long before the organisation of civil
societies, the inference immediately suggested itself that
Occupancy was the process by which the "no man's goods" of the
primitive world became the private property of individuals in the
world of history. It would be wearisome to enumerate the jurists
who have subscribed to this theory in one shape or another, and
it is the less necessary to attempt it because Blackstone, who is
always a faithful index of the average opinions of his day, has
summed them up in his 2nd book and 1st chapter. 
    "The earth," he writes, "and all things therein were the
general property of mankind from the immediate gift of the
Creator. Not that the communion of goods seems ever to have been
applicable, even in the earliest ages, to aught but the substance
of the thing; nor could be extended to the use of it. For, by the
law of nature and reason he who first began to use it acquired
therein a kind of transient property that lasted so long as he
was using it, and no longer; or to speak with greater precision,
the right of possession continued for the same time only that the
act of possession lasted. Thus the ground was in common, and no
part was the permanent property of any man in particular; yet
whoever was in the occupation of any determined spot of it, for
rest, for shade, or the like, acquired for the time a sort of
ownership, from which it would have been unjust and contrary to
the law of nature to have driven him by force, but the instant
that he quitted the use of occupation of it, another might seize
it without injustice." He then proceeds to argue that "when
mankind increased in number, it became necessary to entertain
conceptions of more permanent dominion, and to appropriate to
individuals not the immediate use only, but the very substance of
the thing to be used."
    Some ambiguities of expression in this passage lead to the
suspicion that Blackstone did not quite understand the meaning of
the proposition which he found in his authorities, that property
in the earth's surface was first acquired, under the law of
Nature, by the occupant; but the limitation which designedly or
through misapprehension he has imposed on the theory brings it
into a form which it has not infrequently assumed. Many writers
more famous than Blackstone for precision of language have laid
down that, in the beginning of things, Occupancy first gave a
right against the world to an exclusive but temporary enjoyment,
and that afterwards this right, while it remained exclusive,
became perpetual. Their object in so stating their theory was to
reconcile the doctrine that in the state of Nature res nullius
became property through Occupancy, with the inference which they
drew from the Scriptural history that the Patriarchs did not at
first permanently appropriate the soil which had been grazed over
by their flocks and herds. 
    The only criticism which could be directly applied to the
theory of Blackstone would consist in inquiring whether the
circumstances which make up his picture of a primitive society
are more or less probable than other incidents which could be
imagined with equal readiness. Pursuing this method of
examination, we might fairly ask whether the man who had occupied
(Blackstone evidently uses this word with its ordinary English
meaning) a particular spot of ground for rest or shade would be
permitted to retain it without disturbance. The chances surely
are that his right to possession would be exactly coextensive
with his power to keep it, and that he would be constantly liable
to disturbance by the first comer who coveted the spot and
thought himself strong enough to drive away the possessor. But
the truth is that all such cavil at these positions is perfectly
idle from the very baselessness of the positions themselves. What
mankind did in the primitive state may not be a hopeless subject
of inquiry, but of their motives for doing it it is impossible to
know anything. These sketches of the plight of human beings in
the first ages of the world are effected by first supposing
mankind to be divested of a great part of the circumstances by
which they are now surrounded, and by then assuming that, in the
condition thus imagined, they would preserve the same sentiments
and prejudices by which they are now actuated, -- although, in
fact, these sentiments may have been created and engendered by
those very circumstances of which, by the hypothesis, they are to
be stripped. 
    There is an aphorism of Savigny which has been sometimes
thought to countenance a view of the origin of property somewhat
similar to the theories epitomised by Blackstone. The great
German jurist has laid down that all Property is founded on
Adverse Possession ripened by Prescription. It is only with
respect to Roman law that Savigny makes this statement, and
before it can fully be appreciated much labour must be expended
in explaining and defining the expressions employed. His meaning
will, however, be indicated with sufficient accuracy if we
consider him to assert that, how far soever we carry our inquiry
into the ideas of property received among the Romans, however
closely we approach in tracing them to the infancy of law, we can
get no farther than a conception of ownership involving the three
elements in the canon  -- Possession, Adverseness of Possession,
that is a holding not permissive or subordinate, but exclusive
against the world, and Prescription, or a period of time during
which the Adverse Possession has uninterruptedly continued. It is
exceedingly probable that this maxim might be enunciated with
more generality than was allowed to it by its author, and that no
sound or safe conclusion can be looked for from investigations
into any system of laws which are pushed farther back than the
point at which these combined ideas constitute the notion of
proprietary right. Meantime, so far from bearing out the popular
theory of the origin of property, Savigny's canon is particularly
valuable as directing our attention to its weakest point. In the
view of Blackstone and those whom he follows, it was the mode of
assuming the exclusive enjoyment which mysteriously affected the
minds of the fathers of our race. But the mystery does not reside
here. It is not wonderful that property began in adverse
possession. It is not surprising that the first proprietor should
have been the strong man armed who kept his goods in peace. But
why it was that lapse of time created a sentiment of respect for
his possession -- which is the exact source of the universal
reverence of mankind for that which has for a long period de
facto existed -- are questions really deserving the profoundest
examination, but lying far beyond the boundary of our present
inquiries. 
    Before pointing out the quarter in which we may hope to glean
some information, scanty and uncertain at best, concerning the
early history of proprietary right, I venture to state my opinion
that the popular impression in reference to the part played by
Occupancy in the first stages of civilisation directly reverses
the truth. Occupancy is the advised assumption of physical
possession; and the notion that an act of this description
confers a title to "res nullius," so far from being
characteristic of very early societies, is in all probability the
growth of a refined jurisprudence and of a settled condition of
the laws. It is only when the rights of property have gained a
sanction from long practical inviolability and when the vast
majority of the objects of enjoyment have been subjected to
private ownership, that mere possession is allowed to invest the
first possessor with dominion over commodities in which no prior
proprietorship has been asserted. The sentiment in which this
doctrine originated is absolutely irreconcilable with that
infrequency and uncertainty of proprietary rights which
distinguish the beginnings of civilisation. Its true basis seems
to be, not an instinctive bias towards the institution of
Property, but a presumption arising out of the long continuance
of that institution, that everything ought to have an owner. When
possession is taken of a "res nullius," that is, of an object
which is not, or has never been, reduced to dominion, the
possessor is permitted to become proprietor from a feeling that
all valuable things are naturally the subjects of an exclusive
enjoyment, and that in the given case there is no one to invest
with the right of property except the Occupant. The Occupant in
short, becomes the owner, because all things are presumed to be
somebody's property and because no one can be pointed out as
having a better right than he to the proprietorship of this
particular thing. 
    Even were there no other objection to the descriptions of
mankind in their natural state which we have been discussing,
there is one particular in which they are fatally at variance
with the authentic evidence possessed by us. It will be observed
that the acts and motives which these theories suppose are the
acts and motives of Individuals. It is each Individual who for
himself subscribes the Social Compact. It is some shifting
sandbank in which the grains are Individual men, that according
to the theory of Hobbes is hardened into the social rock by the
wholesome discipline of force. It is an Individual who, in the
picture drawn by Blackstone, "is in the occupation of a
determined spot of ground for rest, for shade, or the like." The
vice is one which necessarily afflicts all the theories descended
from the Natural Law of the Romans, which differed principally
from their Civil Law in the account which it took of Individuals,
and which has rendered precisely its greatest service to
civilisation in enfranchising the individual from the authority
of archaic society. But Ancient Law, it must again be repeated,
knows next to nothing of Individuals. It is concerned not with
Individuals, but with Families, not with single human beings, but
groups. Even when the law of the State has succeeded in
permeating the small circles of kindred into which it had
originally no means of penetrating, the view it takes of
Individuals is curiously different from that taken by
jurisprudence in its maturest stage. The life of each citizen is
not regarded as limited by birth and death; it is but a
continuation of the existence of his forefathers, and it will be
prolonged in the existence of his descendants. 
    The Roman distinction between the Law of Persons and the Law
of Things, which though extremely convenient is entirely
artificial, has evidently done much to divert inquiry on the
subject before us from the true direction. The lessons learned in
discussing the Jus Personarum have been forgotten where the Jus
Rerum is reached, and Property, Contract, and Delict, have been
considered as if no hints concerning their original nature were
to be gained from the facts ascertained respecting the original
condition of Persons. The futility of this method would be
manifest if a system of pure archaic law could be brought before
us, and if the experiment could be tried of applying to it the
Roman classifications. It would soon be seen that the separation
of the Law of Persons from that of Things has no meaning in the
infancy of law, that the rules belonging to the two departments
are inextricably mingled together, and that the distinctions of
the later jurists are appropriate only to the later
jurisprudence. From what has been said in the earlier portions of
this treatise, it will be gathered that there is a strong a
priori improbability of our obtaining any clue to the early
history of property, if we confine our notice to the proprietary
rights of individuals. It is more than likely that
joint-ownership, and not separate ownership, is the really
archaic institution, and that the forms of property which will
afford us instruction will be those which are associated with the
rights of families and of groups of kindred. The Roman
jurisprudence will not here assist in enlightening us, for it is
exactly the Roman jurisprudence which, transformed by the theory
of Natural Law, has bequeathed to the moderns the impression that
individual ownership is the normal state of proprietary right,
and that ownership in common by groups of men is only the
exception to a general rule. There is, however, one community
which will always be carefully examined by the inquirer who is in
quest of any lost institution of primeval society. How far soever
any such institution may have undergone change among the branch
of the Indo-European family which has been settled for ages in


India

, it will seldom be found to have entirely cast aside the
shell in which it was originally reared. It happens that, among
the Hindoos, we do find a form of ownership which ought at once
to rivet our attention from its exactly fitting in with the ideas
which our studies in the Law of Persons would lead us to
entertain respecting the original condition of property. The
Village Community of India is at once an organised patriarchal
society and an assemblage of co-proprietors. The personal
relations to each other of the men who compose it are
indistinguishably confounded with their proprietary rights, and
to the attempts of English functionaries to separate the two may
be assigned some of the most formidable miscarriages of
Anglo-Indian administration. The Village Community is known to be
of immense antiquity. In whatever direction research has been
pushed into Indian history, general or local, it has always found
the Community in existence at the farthest point of its progress.
A great number of intelligent and observant writers, most of whom
had no theory of any sort to support concerning its nature and
origin, agree in considering it the least destructible
institution of a society which never willingly surrenders any one
of its usages to innovation. Conquests and revolutions seem to
have swept over it without disturbing or displacing it, and the
most beneficent systems of government in 

India

 have always been
those which have recognised it as the basis of administration. 
    The mature Roman law, and modern jurisprudence following in
its wake, look upon co-ownership as an exceptional and momentary
condition of the rights of property. This view is clearly
indicated in the maxim which obtains universally in Western

Europe
, Nemo in communione potest invitus detineri ("No one can
be kept in co-proprietorship against his will"). But in 

India

this order of ideas is reversed, and it may be said that separate
proprietorship is always on its way to become proprietorship in
common. The process has been adverted to already. As soon as a
son is born, he acquires a vested interest in his father's
substance, and on attaining years of discretion he is even, in
certain contingencies, permitted by the letter of the law to call
for a partition of the family estate. As a fact, however, a
division rarely takes place even at the death of the father, and
the property constantly remains undivided for several
generations, though every member of every generation has a legal
right to an undivided share in it. The domain thus held in common
is sometimes administered by an elected manager, but more
generally, and in some provinces always, it is managed by the
eldest agnate, by the eldest representative of the eldest line of
the stock. Such an assemblage of joint proprietors, a body of
kindred holding a domain in common, is the simplest form of an
Indian Village Community, but the Community is more than a
brotherhood of relatives and more than an association of
partners. It is an organized society, and besides providing for
the management of the common fund, it seldom fails to provide, by
a complete staff of functionaries, for internal government, for
police, for the administration of justice, and for the
apportionment of taxes and public duties. 
    The process which I have described as that under which a
Village Community is formed, may be regarded as typical. Yet it
is not to be supposed that every Village Community in 

India

 drew
together in so simple a manner. Although, in the North of 

India

,
the archives, as I am informed, almost invariably show that the
Community was founded by a single assemblage of blood-relations,
they also supply information that men of alien extraction have
always, from time to time, been engrafted on it, and a mere
purchaser of a share may generally, under certain conditions, be
admitted to the brotherhood. In the South of the 
Peninsula
 there
are often Communities which appear to have sprung not from one
but from two or more families; and there are some whose
composition is known to be entirely artificial; indeed, the
occasional aggregation of men of different castes in the same
society is fatal to the hypothesis of a common descent. Yet in
all these brotherhoods either the tradition is preserved, or the
assumption made, of an original common parentage. Mountstuart
Elphinstone, who writes more particularly of the Southern Village
Communities, observes of them (History of India, i. 126): "The
popular notion is that the Village landholders are all descended
from one or more individuals who settled the village; and that
the only exceptions are formed by persons who have derived their
rights by purchase or otherwise from members of the original
stock. The supposition is confirmed by the fact that, to this
day, there are only single families of landholders in small
villages and not many in large ones; but each has branched out
into so many members that it is not uncommon for the whole
agricultural labour to be done by the landholders, without the
aid either of tenants or of labourers. The rights of the
landholders are their collectively and, though they almost always
have a more or less perfect partition of them, they never have an
entire separation. A landholder, for instance, can sell or
mortgage his rights; but he must first have the consent of the
Village, and the purchaser steps exactly into his place and takes
up all his obligations. If a family becomes extinct, its share
returns to the common stock."
    Some considerations which have been offered in the fifth
chapter of this volume will assist the reader, I trust, in
appreciating the significance of Elphinstone's language. No
institution of the primitive world is likely to have been
preserved to our day, unless it has acquired an elasticity
foreign to its original nature through some vivifying legal
fiction. The Village Community then is not necessarily an
assemblage of blood-relations, but it is either such an
assemblage or a body of co-proprietor formed on the model of an
association of kinsmen. The type with which it should be compared
is evidently not the Roman Family, but the Roman Gens or House.
The Gens was also a group on the model of the family. it was the
family extended by a variety of fictions of which the exact
nature was lost in antiquity. In historical times, its leading
characteristics were the very two which Elphinstone remarks in
the Village Community. There was always the assumption of a
common origin, an assumption sometimes notoriously at variance
with fact; and, to repeat the historian's words, "if a family
became extinct, its share returned to the common stock." In old
Roman law, unclaimed inheritances escheated to the Gentiles. It
is further suspected by all who have examined their history that
the Communities, like the Gentes, have been very generally
adulterated by the admission of strangers, but the exact mode of
absorption cannot now be ascertained. At present, they are
recruited, as Elphinstone tells us, by the admission of
purchasers, with the consent of the brotherhood. The acquisition
of the adopted member is, however, of the nature of a universal
succession; together with the share he has bought, he succeeds to
the liabilities which the vendor had incurred towards the
aggregate group. He is an Emptor Familiae, and inherits the legal
clothing of the person whose place he begins to fill. The consent
of the whole brotherhood required for his admission may remind us
of the consent which the Comitia Curiata, the Parliament of that
larger brotherhood of self-styled kinsmen, the ancient Roman
commonwealth, so strenuously insisted on as essential to the
legalisation of an Adoption or the confirmation of a Will. 
    The tokens of an extreme antiquity are discoverable in almost
every single feature of the Indian Village Communities. We have
so many independent reasons for suspecting that the infancy of
law is distinguished by the prevalence of co-ownership by the
intermixture of personal with proprietary rights, and by the
confusion of public with private duties, that we should be
justified in deducing many important conclusions from our
observation of these proprietary brotherhoods, even if no
similarly compounded societies could be detected in any other
part of the world. It happens, however, that much earnest
curiosity has been very recently attracted to a similar set of
phenomena in those parts of 
Europe
 which have been most slightly
affected by the feudal transformation of property, and which in
many important particulars have as close an affinity with the
Eastern as with the Western world. The researches of M. de
Haxthausen, M. Tengoborski, and others, have shown us that the
Russian villages are not fortuitous assemblages of men, nor are
they unions founded on contract; they are naturally organised
communities like those of 

India

. It is true that these villages
are always in theory the patrimony of some noble proprietor, and
the peasants have within historical times been converted into the
predial, and to a great extent into the personal, serfs of the
seignior. But the pressure of this superior ownership has never
crushed the ancient organisation of the village, and it is
probable that the enactment of the Czar of Russia, who is
supposed to have introduced serfdom, was really intended to
prevent the peasants from abandoning that co-operation without
which the old social order could not long be maintained. In the
assumption of an agnatic connection between the villagers, in the
blending of personal rights with privileges of ownership, and in
a variety of spontaneous provisions for internal administration,
the 

Russian
 
Village

 appears to be a nearly exact repetition of
the Indian Community; but there is one important difference which
we note with the greatest interest. The co-owners of an Indian
village, though their property is blended, have their rights
distinct, and this separation of rights is complete and continues
indefinitely. The severance of rights is also theoretically
complete in a Russian village, but there it is only temporary.
After the expiration of a given, built not in all cases of the
same, period separate ownerships are extinguished, the land of
the village is thrown into a mass, and then it is re-distributed
among the families composing the community, according to their
number. This repartition having been effected, the rights of
families and of individuals are again allowed to branch out into
various lines, which they continue to follow till another period
of division comes round. An even more curious variation from this
type of ownership occurs in some of those countries which long
formed a debateable land between the 
Turkish empire
 and the
possessions of the House of Austria, In Servia, in 

Croatia

, and
the Austrian Sclavonia, the villages are also brotherhoods of
persons who are at once co-owners and kinsmen; but there the
internal arrangements of the community differ from those adverted
to in the last two examples. The substance of the common property
is in this case neither divided in practice nor considered in
theory as divisible, but the entire land is cultivated by the
combineD labour of all the villagers, and the produce is annually
distributed among the households, sometimes according to their
supposed wants, sometimes according to rules which give to
particular persons a fixed share of the usufruct. All these
practices are traced by the jurists of the East of Europe to a
principle which is asserted to be found in the earliest
Sclavonian laws, the principle that the property of families
cannot be divided for a perpetuity. 
    The great interest of these phenomena in an inquiry like the
present arises from the light they throw on the development of
distinct proprietary rights inside the groups by which property
seems to have been originally held. We have the strongest reason
for thinking that property once belonged not to individuals nor
even to isolated families, but to larger societies composed on
the patriarchal model; but the mode of transition from ancient to
modern ownerships, obscure at best, would have been infinitely
obscurer if several distinguishable forms of Village Communities
had not been discovered and examined. It is worth while to attend
to the varieties of internal arrangement within the patriarchal
groups which are, or were till recently, observable among races
of Indo-European blood. The chiefs of the ruder 
Highland
 clans
used, it is said, to dole out food to the heads of the households
under their jurisdiction at the very shortest intervals, and
sometimes day by day. A periodical distribution is also made to
the Sclavonian villagers of the Austrian and Turkish provinces by
the elders of their body, but then it is a distribution once for
all of the total produce of the year. In the Russian villages,
however, the substance of the property ceases to be looked upon
as indivisible, and separate proprietary claims are allowed
freely to grow up, but then the progress of separation is
peremptorily arrested after it has continued a certain time. In


India

, not only is there no indivisibility of the common fund,
but separate proprietorship in parts of it may be indefinitely
prolonged and may branch out into any number of derivative
ownerships, the de facto partition of the stock being, however,
checked by inveterate usage, and by the rule against the
admission of strangers without the consent of the brotherhood. It
is not of course intended to insist that these different forms of
the Village Community represent distinct stages in a process of
transmutation which has been everywhere accomplished in the same
manner. But, though the evidence does not warrant our going so
far as this, it renders less presumptuous the conjecture that
private property, in the shape in which we know it, was chiefly
formed by the gradual disentanglement of the separate rights of
individuals from the blended rights of a community. Our studies
in the Law of Persons seemed to show us the Family expanding into
the Agnatic group of kinsmen, then the Agnatic group dissolving
into separate households; lastly the household supplanted by the
individual; and it is now suggested that each step in the change
corresponds to an analogous alteration in the nature of
Ownership. If there be any truth in the suggestion, it is to be
observed that it materially affects the problem which theorists
on the origin of Property have generally proposed to themselves.
The question -- perhaps an insoluble one which they have mostly
agitated is, what were the motives which first induced men to
respect each other's possessions? It may still be put, without
much hope of finding an answer to it, in the form of any inquiry
into the reasons which led one composite group to keep aloof from
the domain of another. But, if it be true that far the most
important passage in the history of Private Property is its
gradual elimination from the co-ownership of kinsmen, then the
great point of inquiry is identical with that which lies on the
threshold of all historical law -- what were the motives which
originally prompted men to hold together in the family union? To
such a question, Jurisprudence, unassisted by other sciences, is
not competent to give a reply. The fact can only be noted. 
    The undivided state of property in ancient societies is
consistent with a peculiar sharpness of division, which shows
itself as soon as any single share is completely separated from
the patrimony of the group. This phenomenon springs, doubtless,
from the circumstance that the property is supposed to become the
domain of a new group, so that any dealing with it, in its
divided state, is a transaction between two highly complex
bodies. I have already compared Ancient Law to Modern
International Law, in respect of the size and complexity of the
corporate associations, whose rights and duties it settles. As
the contracts and conveyances known to ancient law are contracts
and conveyances to which not single individuals, but organised
companies of men, are parties, they are in the highest degree
ceremonious; they require a variety of symbolical acts and words
intended to impress the business on the memory of all who take
part in it; and they demand the presence of an inordinate number
of witnesses. From these peculiarities, and others allied to
them, springs the universally unmalleable character of the
ancient forms of property. Sometimes the patrimony of the family
is absolutely inalienable, as was the case with the Sclavonians,
and still oftener, though alienations may not be entirely
illegitimate, they are virtually impracticable, as among most of
the Germanic tribes, from the necessity of having the consent of
a large number of persons to the transfer. Where these
impediments do not exist, or can be surmounted, the act of
conveyance itself is generally burdened with a perfect load of
ceremony, in which not one iota can be safely neglected. Ancient
law uniformly refuses to dispense with a single gesture, however
grotesque; with a single syllable, however its meaning may have
been forgotten; with a single witness, however superfluous may be
his testimony. The entire solemnities must be scrupulously
completed by persons legally entitled to take part in them, or
else the conveyance is null, and the seller is re-established in
the rights of which he had vainly attempted to divest himself. 
    These various obstacles to the free circulation of the
objects of use and enjoyment, begin of course to make themselves
felt as soon as society has acquired even a slight degree of
activity, and the expedients by which advancing communities
endeavour to overcome them form the staple of the history of
Property. Of such expedients there is one which takes precedence
of the rest from its antiquity and universality. The idea seems
to have spontaneously suggested itself to a great number of early
societies, to classify property into kinds. One kind or sort of
property is placed on a lower footing of dignity than the others,
but at the same time is relieved from the fetters which antiquity
has imposed on them. Subsequently, the superior convenience of
the rules governing the transfer and descent of the lower order
of property becomes generally recognised, and by a gradual course
of innovation the plasticity of the less dignified class of
valuable objects is communicated to the classes which stand
conventionally higher. The history of Roman Property Law is the
history of the assimilation of Res Mancipi to Res Nec Mancipi.
The history of Property on the European Continent is the history
of the subversion of the feudalised law of land by the Romanised
law of moveables; and, though the history of ownership in 

England

is not nearly completed, it is visibly the law of personalty
which threatens to absorb and annihilate the law of realty. 
    The only natural classification of the objects of enjoyment,
the only classification which corresponds with an essential
difference in the subject-matter, is that which divides them into
Moveables and Immoveables. Familiar as is this classification to
jurisprudence, it was very slowly developed by Roman law; from
which we inherit it, and was only finally adopted by it in its
latest stage. The classifications of Ancient Law have sometimes a
superficial resemblance to this. They occasionally divide
property into categories, and place immoveables in one of them;
but then it is found that they either class along with
immoveables a number of objects which have no sort of relation
with them, or else divorce them from various rights to which they
have a close affinity. Thus, the Res Mancipi of Roman Law
included not only land, but slaves, horses, and oxen. Scottish
law ranks with land a certain class of securities, and Hindoo law
associates it with slaves. English law, on the other hand, parts
leases of land for years from other interests in the soil, and
joins them to personalty under the name of chattels real.
Moreover the classifications of Ancient Law are classifications
implying superiority and inferiority; while the distinction
between moveables and immoveables, so long at least as it was
confined to Roman jurisprudence, carried with it no suggestion
whatever of a difference in dignity. The Res Mancipi, however,
did certainly at first enjoy a precedence over the Res Nec
Mancipi, as did heritable property in Scotland and realty in
England, over the personalty to which they were opposed. The
lawyers of all systems have spared no pains in striving to refer
these classifications to some intelligible principle; but the
reasons of the severance must ever be vainly sought for in the
philosophy of law: they belong not to its philosophy, but to its
history. The explanation which appears to cover the greatest
number of instances is, that the objects of enjoyment honoured
above the rest were the forms of property known first and
earliest to each particular community, and dignified therefore
emphatically with the designation of Property. On the other hand,
the articles not enumerated among the favoured objects seem to
have been placed on a lower standing, because the knowledge of
their value was posterior to the epoch at which the catalogue of
superior property was settled. They were at first unknown, rare,
limited in their uses, or else regarded as mere appendages to the
privileged objects. Thus, though the Roman Res Mancipi included a
number of moveable articles of great value, still the most costly
jewels were never allowed to take rank as Res Mancipi, because
they were unknown to the early Romans. In the same way chattels
real in England are said to have been degraded to the footing of
personalty, from the infrequency and valuelessness of such
estates under the feudal land-law. But the grand point of
interest is, the continued degradation of these commodities when
their importance had increased and their number had multiplied.
Why were they not successively intruded among the favoured
objects of enjoyment? One reason is found in the stubbornness
with which Ancient Law adheres to its classifications. It is a
characteristic both of uneducated minds and of early societies,
that they are little able to conceive a general rule apart from
the particular applications of it with which they are practically
familiar. They cannot dissociate a general term or maxim from the
special examples which meet them in daily experience; and in this
way the designation covering the best-known forms of property is
denied to articles which exactly resemble them in being objects
of enjoyment and subjects of right. But to these influences,
which exert peculiar force in a subject-matter so stable as that
of law, are afterwards added others more consistent with progress
in enlightenment and in the conceptions of general expediency.
Courts and lawyers become at last alive to the inconvenience of
the embarrassing formalities required for the transfer, recovery,
or devolution of the favoured commodities, and grow unwilling to
fetter the newer descriptions of property with the technical
trammels which characterised the infancy of law. Hence arises a
disposition to keep these last on a lower grade in the
arrangements of Jurisprudence, and to permit their transfer by
simpler processes than those which, in archaic conveyances, serve
as stumbling-blocks to good faith and stepping-stones to fraud.
We are perhaps in some danger of underrating the inconveniences
of the ancient modes of transfer. Our instruments of conveyance
are written, so that their language, well pondered by the
professional draftsman, is rarely defective in accuracy. But an
ancient conveyance was not written, but acted. Gestures and words
took the place of written technical phraseology, and any formula
mispronounced, or symbolical act omitted, would have vitiated the
proceeding as fatally as a material mistake in stating the uses
or setting out the remainders would, two hundred years ago, have
vitiated an English deed. Indeed, the mischiefs of the archaic
ceremonial are even thus only half stated. So long as elaborate
conveyances, written or acted, are required for the alienation of
land alone, the chances of mistake are not considerable in the
transfer of a description of property which is seldom got rid of
with much precipitation. But the higher class of property in the
ancient world comprised not only land but several of the
commonest and several of the most valuable moveables. When once
the wheels of society had begun to move quickly, there must have
been immense inconvenience in demanding a highly intricate form
of transfer for a horse or an ox, or for the most costly chattel
of the old world -- the Slave. Such commodities must have been
constantly and even ordinarily conveyed with incomplete forms,
and held, therefore, under imperfect titles. 
    The Res Mancipi of old Roman law were land -- in historical
times, land on Italian soil, -- slaves and beasts of burden, such
as horses and oxen. It is impossible to doubt that the objects
which make up the class are the instruments of agricultural
labour, the commodities of first consequence to a primitive
people. Such commodities were at first, I imagine, called
emphatically Things or Property, and the mode of conveyance by
which they were transferred was called a Mancipium or
Mancipation; but it was not probably till much later that they
received the distinctive appellation of Res Mancipi, "Things
which require a Mancipation." By their side there may have
existed or grown up a class of objects, for which it was not
worth while to insist upon the full ceremony of Mancipation. It
would be enough if, in transferring these last from owner to
owner, a part only of the ordinary formalities were proceeded
with, namely, that actual delivery, physical transfer, or
tradition, which is the most obvious index of a change of
proprietorship. Such commodities were the Res Nec Mancipi of the
ancient jurisprudence, "things which did not require a
Mancipation," little prized probably at first, and not often
passed from one group of proprietors to another. While, however,
the list of the Res Mancipi was irrevocably closed, that of the
Res Nec Mancipi admitted of indefinite expansion; and hence every
fresh conquest of man over material nature added an item to the
Res Nec Mancipi, or effected an improvement in those already
recognised. Insensibly, therefore, they mounted to an equality
with the Res Mancipi, and the impression of an intrinsic
inferiority being thus dissipated, men began to observe the
manifold advantages of the simple formality which accompanied
their transfer over the more intricate and more venerable
ceremonial. Two of the agents of legal amelioration, Fictions and
Equity, were assiduously employed by the Roman lawyers to give
the practical effects of a Mancipation to a Tradition: and,
though Roman legislators long shrank from enacting that the right
of property in a Res Mancipi should be immediately transferred by
bare delivery of the article, yet even this step was at last
ventured upon by Justinian, in whose jurisprudence the difference
between Res Mancipi and Res Nec Mancipi disappears, and Tradition
or Delivery becomes the one great conveyance known to the law.
The marked preference which the Roman lawyers very early gave to
Tradition caused them to assign it a place in their theory which
has helped to blind their modern disciples to its true history.
It was classed among the "natural" modes of acquisition, both
because it was generally practised among the Italian tribes, and
because it was a process which attained its object by the
simplest mechanism. If the expressions of the jurisconsults be
pressed, they undoubtedly imply that Tradition, which belongs to
the Law Natural, is more ancient than Mancipation, which is an
institution of Civil Society; and this, I need not say, is the
exact reverse of the truth. 
    The distinction between Res Mancipi and Res Nec Mancipi is
the type of a class of distinctions to which civilisation is much
indebted, distinctions which run through the whole mass of
commodities, placing a few of them in a class by themselves, and
relegating the others to a lower category. The inferior kinds of
property are first, from disdain and disregard, released from the
perplexed ceremonies in which primitive law delights, and thus
afterwards, in another state of intellectual progress, the simple
methods of transfer and recovery which have been allowed to come
into use serve as a model which condemns by its convenience and
simplicity the cumbrous solemnities inherited from ancient days.
But, in some societies, the trammels in which Property is tied up
are much too complicated and stringent to be relaxed in so easy a
manner. Whenever male children have been born to a Hindoo, the
law of India, as I have stated, gives them all an interest in his
property, and makes their consent a necessary condition of its
alienation. In the same spirit, the general usage of the old
Germanic peoples -- it is remarkable that the Anglo-Saxon customs
seem to have been an exception forbade alienations without the
consent of the male children; and the primitive law of the
Sclavonians even prohibited them altogether. It is evident that
such impediments as these cannot be overcome by a distinction
between kinds of property, inasmuch as the difficulty extends to
commodities of all sorts; and accordingly, Ancient Law, when once
launched on a course of improvement, encounters them with a
distinction of another character, a distinction classifying
property, not according to its nature but according to its
origin. In India, where there are traces of both systems of
classification, the one which we are considering is exemplified
in the difference which Hindoo law establishes between
Inheritances and Acquisitions. The inherited property of the
father is shared by the children as soon as they are born; but
according to the custom of most provinces, the acquisitions made
by him during his lifetime are wholly his own, and can be
transferred by him at pleasure. A similar distinction was not
unknown to Roman law, in which the earliest innovation on the
Parental Powers took the form of a permission given to the son to
keep for himself whatever he might have acquired in military
service. But the most extensive use ever made of this mode of
classification appears to have been among the Germans, I have
repeatedly stated that the allod, though not inalienable, was
commonly transferable with the greatest difficulty. and moreover,
it descended exclusively to the agnatic kindred. Hence an
extraordinary variety of distinctions came to be recognised, all
intended to diminish the inconveniences inseparable from allodial
property. The wehrgeld, for example, or composition for the
homicide of a relative, which occupies so large a space in German
jurisprudence, formed no part of the family domain, and descended
according to rules of succession altogether different. Similarly,
the reipus, or fine leviable on the re-marriage of a widow, did
not enter into the allod of the person to whom it was paid, and
followed a line of devolution in which the privileges of the
agnates were neglected. The law, too, as among the Hindoos,
distinguished the Acquisitions of the chief of the household from
his Inherited property, and permitted him to deal with them under
much more liberal conditions. Classifications of the other sort
were also admitted, and the familiar distinction drawn between
land and moveables; but moveable property was divided into
several subordinate categories, to each of which different rules
applied. This exuberance of classification, which may strike us
as strange in so rude a people as the German conquerors of the
Empire, is doubtless to be explained by the presence in their
systems of a considerable element of Roman law, absorbed by them
during their long sojourn on the confines of the Roman dominion.
It is not difficult to trace a great number of the rules
governing the transfer and devolution of the commodities which
lay outside the allod, to their source in Roman jurisprudence,
from which they were probably borrowed at widely distant epochs,
and in fragmentary importations. How far the obstacles to the
free circulation of property were surmounted by such
contrivances, we have not the means even of conjecturing, for the
distinctions adverted to have no modern history. As I before
explained, the allodial form of property was entirely lost in the
feudal, and when the consolidation of feudalism was once
completed, there was practically but one distinction left
standing of all those which had been known to the western world
-- the distinction between land and goods, immoveables and
moveables. Externally this distinction was the same with that
which Roman law had finally accepted, but the law of the middle
ages differed from that of Rome in distinctly considering
immoveable property to be more dignified than moveable. Yet this
one sample is enough to show the importance of the class of
expedients to which it belongs. In all the countries governed by
systems based on the French codes, that is, through much the
greatest part of the Continent of Europe, the law of moveables,
which was always Roman law, has superseded and annulled the
feudal law of land. England is the only country of importance in
which this transmutation, though it has gone some way, is not
nearly accomplished. Our own, too, it may be added, is the only
considerable European country in which the separation of
moveables from immoveables has been somewhat disturbed by the
same influences which caused the ancient classifications to
depart from the only one which is countenanced by nature. In the
main, the English distinction has been between land and goods;
but a certain class of goods have gone as heir-looms with the
land, and a certain description of interests in land have from
historical causes been ranked with personalty This is not the
only instance in which English jurisprudence, standing apart from
the main current of legal modification, has reproduced phenomena
of archaic law. 
    I proceed to notice one or two more contrivances by which the
ancient trammels of proprietary right were more or less
successfully relaxed, premising that the scheme of this treatise
only permits me to mention those which are of great antiquity. On
one of them in particular it is necessary to dwell for a moment
or two, because persons unacquainted with the early history of
law will not be easily persuaded that a principle, of which
modern jurisprudence has very slowly and with the greatest
difficulty obtained the recognition, was really familiar to the
very infancy of legal science. There is no principle in all law
which the moderns, in spite of its beneficial character, have
been so loath to adopt and to carry to its legitimate
consequences as that which was known to the Romans as Usucapion,
and which has descended to modern jurisprudence under the name of
Prescription. It was a positive rule of the oldest Roman law, a
rule older than the Twelve Tables, that commodities which had
been uninterruptedly possessed for a certain period became the
property of the possessor. The period of possession was
exceedingly short one or two years according to the nature of the
commodities and in historical times Usucapion was only allowed to
operate when possession had commenced in a particular way; but I
think it likely that at a less advanced epoch possession was
converted into ownership under conditions even less severe than
we read of in our authorities. As I have said before, I am far
from asserting that the respect of men for de facto possession is
a phenomenon which jurisprudence can account for by itself, but
it is very necessary to remark that primitive societies, in
adopting the principle of Usucapion, were not beset with any of
the speculative doubts and hesitations which have impeded its
reception among the moderns. Prescriptions were viewed by the
modern lawyers, first with repugnance, afterwards with reluctant
approval. In several countries, including our own, legislation
long declined to advance beyond the rude device of barring all
actions based on a wrong which had been suffered earlier than a
fixed point of time in the past, generally the first year of some
preceding reign; nor was it till the middle ages had finally
closed, and James the First had ascended the throne of England,
that we obtained a true statute of limitation of a very imperfect
kind. This tardiness in copying one of the most famous chapters
of Roman law, which was no doubt constantly read by the majority
of European lawyers, the modern world owes to the influence of
the Canon Law. The ecclesiastical customs out of which the Canon
Law grew, concerned as they were with sacred or quasi-sacred
interests, very naturally regarded the privileges which they
conferred as incapable of being lost through disuse however
prolonged; and in accordance with this view, the spiritual
jurisprudence, when afterwards consolidated, was distinguished by
a marked leaning against Prescriptions. It was the fate of the
Canon Law when held up by the clerical lawyers as a pattern to
secular legislation, to have a peculiar influence on first
principles. It gave to the bodies of custom which were formed
throughout Europe far fewer express rules than did the Roman law,
but then it seems to have communicated a bias to professional
opinion on a surprising number of fundamental points, and the
tendencies thus produced progressively gained strength as each
system was developed. One of the dispositions it produced was a
disrelish for Prescriptions; but I do not know that this
prejudice would have operated as powerfully as it has done, if it
had not fallen in with the doctrine of the scholastic jurists of
the realist sect, who taught that, whatever turn actual
legislation might take, a right, how long soever neglected, was
in point of fact indestructible. The remains of this state of
feeling still exist. Wherever the philosophy of law is earnestly
discussed, questions respecting the speculative basis of
Prescription are always hotly disputed; and it is still a point
of the greatest interest in France and Germany, whether a person
who has been out of possession for a series of years is deprived
of his ownership as a penalty for his neglect, or loses it
through the summary interposition of the law in its desire to
have afinis litium. But no such scruples troubled the mind of
early Roman society. Their ancient usages directly took away the
ownership of everybody who had been out of possession, under
certain circumstances, during one or two year. What was the exact
tenor of the rule of Usucapion in its earliest shape, it is not
easy to say; but, taken with the limitations which we find
attending it in the books, it was a most useful security against
the mischiefs of a too cumbrous system of conveyance. In order to
have the benefit of Usucapion, it was necessary that the adverse
possession should have begun in good faith, that is, with belief
on the part of the possessor that he was lawfully acquiring the
property, and it was farther required that the commodity should
have been transferred to him by some mode of alienation which,
however unequal to conferring a complete title in the particular
case, was at least recognised by the law. In the case therefore
of a Mancipation, however slovenly the performance might have
been, yet if it had been carried so far as to involve a Tradition
or Delivery, the vice of the title would be cured by Usucapion in
two years at most. I know nothing in the practice of the Romans
which testifies so strongly to their legal genius as the use
which they made of Usucapion. The difficulties which beset them
were nearly the same with those which embarrassed and still
embarrass the lawyers of England. Owing to the complexity of
their system, which as yet they had neither the courage nor the
power to reconstruct, actual right was constantly getting
divorced from technical right, the equitable ownership from the
legal. But Usucapion, as manipulated by the jurisconsults,
supplied a self-acting machinery, by which the defects of titles
to property were always in course of being cured, and by which
the ownerships that were temporarily separated were again rapidly
cemented together with the briefest possible delay. Usucapion did
not lose its advantages till the reforms of Justinian. But as
soon as law and equity had been completely fused, and when
Mancipation ceased to be the Roman conveyance, there was no
further necessity for the ancient contrivance, and Usucapion,
with its periods of time considerably lengthened, became the
Prescription which has at length been adopted by nearly all
systems of modern law. 
    I pass by with brief mention another expedient having the
same object with the last, which, though it did not immediately
make its appearance in English legal history, was of immemorial
antiquity in Roman law. such indeed is its apparent age that some
German civilians, not sufficiently aware of the light thrown on
the subject by the analogies of English law, have thought it even
older than the Mancipation. I speak of the Cessio in Jure, a
collusive recovery, in a Court of law of property sought to be
conveyed. The plaintiff claimed the subject of this proceeding
with the ordinary forms of a litigation; the defendant made
default; and the commodity was of course adjudged to the
plaintiff. I need scarcely remind the English lawyer that this
expedient suggested itself to our forefathers, and produced those
famous Fines and Recoveries which did so much to undo the
harshest trammels of the feudal land-law. The Roman and English
contrivances have very much in common and illustrate each other
most instructively, but there is this difference between them,
that the object of the English lawyers was to remove
complications already introduced into the title, while the Roman
jurisconsults sought to prevent them by substituting a mode of
transfer necessarily unimpeachable for one which too often
miscarried. The device is, in fact, one which suggests itself as
soon as Courts of Law are in steady operation, but are
nevertheless still under the empire of primitive notions. In an
advanced state of legal opinion, tribunals regard collusive
litigation as an abuse of their procedure; but there has always
been a time when, if their forms were scrupulously complied with,
they never dreamed of looking further. 
    The influence of Courts of Law and of their procedure upon
Property has been most extensive, but the subject is too large
for the dimensions of this treatise, and would carry us further
down the course of legal history than is consistent with its
scheme. It is desirable, however, to mention, that to this
influence we must attribute the importance of the distinction
between Property and Possession -- not, indeed, the distinction
itself, which (in the language of an eminent English civilian) is
the same thing as the distinction between the legal right to act
upon a thing and the physical power to do so -- but the
extraordinary importance which the distinction has obtained in
the philosophy of law. Few educated persons are so little versed
in legal literature as not to have heard that the language of the
Roman jurisconsults on the subject of Possession long occasioned
the greatest possible perplexity, and that the genius of Savigny
is supposed to have chiefly proved itself by the solution which
he discovered for the enigma. Possession, in fact, when employed
by the Roman lawyers, appears to have contracted a shade of
meaning not easily accounted for. The word, as appears from its
etymology; must have originally denoted physical contact or
physical contact resumeable at pleasure; but, as actually used
without any qualifying epithet, it signifies not simply physical
detention, but physical detention coupled with the intention to
hold the thing detained as one's own. Savigny, following Niebuhr,
perceived that for this anomaly there could only be a historical
origin. He pointed out that the Patrician burghers of Rome, who
had become tenants of the greatest part of the public domain at
nominal rents, were, in the view of the old Roman law, mere
possessors, but then they were possessors intending to keep their
land against all comers. They, in truth, put forward a claim
almost identical with that which has recently been advanced in
England by the lessees of Church lands. Admitting that in theory
they were the tenants-at-will of the state, they contended that
time and undisturbed enjoyment had ripened their holding into a
species of ownership, and that it would be unjust to eject them
for the purpose of redistributing the domain. The association of
this claim with the Patrician tenancies, permanently influenced
the sense of "possession." Meanwhile the only legal remedies of
which the tenants could avail themselves, if ejected or
threatened with disturbance, were the Possessory Interdicts,
summary processes of Roman law which were either expressly
devised by the Praetor for their protection, or else, according
to another theory, had in older times been employed for the
provisional maintenance of possessions pending the settlement of
questions of legal right. It came, therefore, to be understood
that everybody who possessed property as his own had the power of
demanding the Interdicts, and, by a system of highly artificial
pleading, the Interdictal process was moulded into a shape fitted
for the trial of conflicting claims to a disputed possession.
Then commenced a movement which, as Mr John Austin pointed out,
exactly reproduced itself in English law. Proprietors, domini,
began to prefer the simpler forms or speedier course of the
Interdict to the lagging and intricate formalities of the Real
Action, and for the purpose of availing themselves of the
possessory remedy fell back upon the possession which was
supposed to be involved in their proprietorship. The liberty
conceded to persons who were not true Possessors, but Owners, to
vindicate their rights by possessory remedies, though it may have
been at first a boon, had ultimately the effect of seriously
deteriorating both English and Roman jurisprudence. The Roman law
owes to it those subtleties on the subject of Possession which
have done so much to discredit it, while English law, after the
actions which it appropriated to the recovery of real property
had fallen into the most hopeless confusion, got rid at last of
the whole tangled mass by a heroic remedy. No one can doubt that
the virtual abolition of the English real actions which took
place nearly thirty years since was a public benefit, but still
persons sensitive to the harmonies of jurisprudence will lament
that, instead of cleansing, improving, and simplifying the true
proprietary actions, we sacrificed them all to the possessory
action of ejectment, thus basing our whole system of land
recovery upon a legal fiction. 
    Legal tribunals have also powerfully assisted to shape and
modify conceptions of proprietary right by means of the
distinction between Law and Equity, which always makes its first
appearance as a distinction between jurisdictions. Equitable
property in England is simply property held under the
jurisdiction of the Court of Chancery. At Rome, the Praetor's
Edict introduced its novel principles in the guise of a promise
that under certain circumstances a particular action or a
particular plea would be granted; and, accordingly, the property
in bonis, or Equitable Property, of Roman law was property
exclusively protected by remedies which had their source in the
Edict. The mechanism by which equitable rights were saved from
being overridden by the claims of the legal owner was somewhat
different in the two systems. With us their independence is
secured by the Injunction of the Court of Chancery. Since however
Law and Equity, while not as yet consolidated, were administered
under the Roman system by the same Court, nothing like the
Injunction was required, and the Magistrate took the simpler
course of refusing to grant to the Civil Law Owner those actions
and pleas by which alone he could obtain the property that
belonged in equity to another. But the practical operation of
both systems was nearly the same. Both, by means of a distinction
in procedure, were able to preserve new forms of property in a
sort of provisional existence, until the time should come when
they were recognised by the whole law. In this way, the Roman
Praetor gave an immediate right of property to the person who had
acquired a Res Mancipi by mere delivery, without waiting for the
ripening of Usucapion. Similarly he in time recognised an
ownership in the Mortgagee who had at first been a mere "bailee"
or depositary, and in the Emphyteuta, or tenant of land which was
subject to a fixed perpetual rent. Following a parallel line of
progress, the English Court of Chancery created a special
proprietorship for the Mortgagor, for the Cestui que Trust, for
the Married Woman who had the advantage of a particular kind of
settlement, and for the Purchaser who had not yet acquired a
complete legal ownership. All these are examples in which forms
of proprietory right, distinctly new, were recognised and
preserved. But indirectly Property has been affected in a
thousand ways by equity both in England and at Rome. Into
whatever corner of jurisprudence its authors pushed the powerful
instrument in their command, they were sure to meet, and touch,
and more or less materially modify the law of property: When in
the preceding pages I have spoken of certain ancient legal
distinctions and expedients as having powerfully affected the
history of ownership, I must be understood to mean that the
greatest part of their influence has arisen from the hints and
suggestions of improvement infused by them into the mental
atmosphere which was breathed by the fabricators of equitable
systems. 
    But to describe the influence of Equity on Ownership would be
to write its history down to our own days. I have alluded to it
principally because several esteemed contemporary writers have
thought that in the Roman severance of Equitable from Legal
property we have the clue to that difference in the conception of
Ownership, which apparently distinguishes the law of the middle
ages from the law of the Roman Empire. The leading characteristic
of the feudal conception is its recognition of a double
proprietorship, the superior ownership of the lord of the fief
co-existing with the inferior property or estate of the tenant.
Now this duplication of proprietary rightlooks, it is urged,
extremely like a generalised form of the Roman distribution of
rights over property into Quiritarian or legal, and (to use a
word of late origin) Bonitarian or equitable. Gaius himself
observes upon the splitting of dominion into two parts as a
singularity of Roman law, and expressly contrasts it with the
entire or allodial ownership to which other nations were
accustomed. Justinian, it is true, re-consolidated dominion into
one, but then it was the partially reformed system of the Western
Empire, and not Justinian's jurisprudence, with which the
barbarians were in contact during so many centuries. While they
remained poised on the edge of the Empire, it may well be that
they learned this distinction, which afterwards bore remarkable
fruit. In favour of this theory, it must at all events be
admitted that the element of Roman law in the various bodies of
barbarian custom has been very imperfectly examined. The
erroneous or insufficient theories which have served to explain
Feudalism resemble each other in their tendency to draw off
attention from this particular ingredient in its texture. The
older investigators, who have been mostly followed in this
country, attached an exclusive importance to the circumstances of
the turbulent period during which the Feudal system grew to
maturity; and in later times a new source of error has been added
to those already existing, in that pride of nationality which has
led German writers to exaggerate the completeness of the social
fabric which their forefathers had built up before their
appearance in the Roman world. One or two English inquirers who
looked in the right quarter for the foundations of the feudal
system, failed nevertheless to conduct their investigations to
any satisfactory result, either from searching too exclusively
for analogies in the compilations of Justinian, or from confining
their attention to the compendia of Roman law which are found
appended to some of the extant barbarian codes. But, if Roman
jurisprudence had any influence on the barbarous societies, it
had probably produced the greatest part of its effects before the
legislation of Justinian, and before the preparation of these
compendia. It was not the reformed and purified jurisprudence of
Justinian, but the undigested system which prevailed in the
Western Empire, and which the Eastern Corpus Juris never
succeeded in displacing, that I conceive to have clothed with
flesh and muscle the scanty skeleton of barbarous usage. The
change must be supposed to have taken place before the Germanic
tribes had distinctly appropriated, as conqueror, any portion of
the Roman dominions, and therefore long before Germanic monarchs
had ordered breviaries of Roman law to be drawn up for the use of
their Roman subjects. The necessity for some such hypothesis will
be felt by everybody who can appreciate the difference between
archaic and developed law. Rude as are the Leges Barbarorum which
remain to us, they are not rude enough to satisfy the theory of
their purely barbarous origin; nor have we any reason for
believing that we have received, in written records, more than a
fraction of the fixed rules which were practised among themselves
by the members of the conquering tribes. If we can once persuade
ourselves that a considerable element of debased Roman law
already existed in the barbarian systems, we shall have done
something to remove a grave difficulty. The German law of the
conquerors and the Roman law of their subjects would not have
combined if they had not possessed more affinity for each other
than refined jurisprudence has usually for the customs of
savages. It is extremely likely that the codes of the barbarians,
archaic as they seem, are only a compound of true primitive usage
with half-understood Roman rules, and that it was the foreign
ingredient which enabled them to coalesce with a Roman
jurisprudence that had already receded somewhat from the
comparative finish which it had acquired under the Western
Emperors. 
    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 class of estated proprietors, the Municipalities.
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 laded domain by an Italian corporation
must have been excessively imperfect. Accordingly, we are told
that with the municipalities 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 constitute 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 classes 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 class 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 gratitude to the feudal
superior, the obligation to assist 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 debasement. 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 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.

 

 


Chapter 10

 
The Early History of Delict and Crime

 
    The Teutonic Codes, including those of our Anglo-Saxon
ancestors, are the only bodies of archaic secular law which have
come down to us in such a state that we can form an exact notion
of their original dimensions. Although the extant fragments of
Roman and Hellenic codes suffice to prove to us their general
character, there does not remain enough of them for us to be
quite sure of their precise magnitude or of the proportion of
their parts to each other. But still on the whole all the known
collections of ancient law are characterised by a feature which
broadly distinguishes them from systems of mature jurisprudence.
The proportion of criminal to civil law is exceedingly different.
In the German codes, the civil part of the law has trifling
dimensions as compared with the criminal. The traditions which
speak of the sanguinary penalties inflicted by the code of Draco
seem to indicate that it had the same characteristic. In the
Twelve Tables alone, produced by a society of greater legal
genius and at first of gentler manners, the civil law has
something like its modern precedence; but the relative amount of
space given to the modes of redressing wrong, though not
enormous, appears to have been large. It may be laid down, I
think, that the more archaic the code, the fuller and the minuter
is its penal legislation. The phenomenon has often been observed,
and has been explained, no doubt to a great extent correctly, by
the Violence habitual to the communities which for the first time
reduced their laws to writing. The legislator, it is said,
proportioned the divisions of his work to the frequency of a
certain class of incidents in barbarian life. I imagine, however,
that this account is not quite complete. It should be recollected
that the comparative barrenness of civil law in archaic
collections is consistent with those other characteristics of
ancient jurisprudence which have been discussed in this treatise.
Nine-tenths of the civil part of the law practised by civilised
societies are made up of the Law of Persons, of the Law of
Property and of inheritance, and of the Law of Contract. But it
is plain that all these provinces of jurisprudence must shrink
within narrower boundaries, the nearer we make our approaches to
the infancy of social brotherhood. The Law of Persons, which is
nothing else than the Law of Status, will be restricted to the
scantiest limits as long as all forms of Status are merged in
common subjection to Paternal Power, as long as the Wife has no
rights against her Husband, the Son none against his Father; and
the infant Ward none against the Agnates who are his Guardians.
Similarly, the rules relating to Property and Succession can
never be plentiful, so long as land and goods devolve within the
family, and, if distributed at all, are distributed inside its
circle. But the greatest gap in ancient civil law will always be
caused by the absence of Contract, which some archaic codes do
not mention at all, while others significantly attest the
immaturity of the moral notions on which Contract depends by
supplying its place with an elaborate jurisprudence of Oaths.
There are no corresponding reasons for the poverty of penal law,
and accordingly, even if it be hazardous to pronounce that the
childhood of nations is always a period of ungoverned violence,
we shall still be able to understand why the modem relation of
criminal law to civil should be inverted in ancient. codes. 
    I have spoken of primitive jurisprudence as giving to
criminal law a priority unknown in a later age. The expression
has been used for convenience' sake, but in fact the inspection
of ancient codes shows that the law which they exhibit in unusual
quantities is not true criminal law. All civilised systems agree
in drawing a distinction between offences against the State or
Community and offences against the Individual, and the two
classes of injuries, thus kept apart, I may here, without
pretending that the terms have always been employed consistently
in jurisprudence, call Crimes and Wrongs, crimina and delicta.
Now the penal law of ancient communities is not the law of
Crimes; it is the law of Wrongs, or, to use the English technical
word, of Torts. The person injured proceeds against the
wrong-doer by an ordinary civil action, and recovers compensation
in the shape of money-damages if he succeeds. If the Commentaries
of Gaius be opened at the place where the writer treats of the
penal jurisprudence founded on the Twelve Tables, it will be seen
that at the head of the civil wrongs recognised by the Roman law
stood Furtum or Theft. Offences which we are accustomed to regard
exclusively as crimes are exclusively treated as torts, and not
theft only, but assault and violent robbery, are associated by
the jurisconsult with trespass, libel and slander. All alike gave
rise to an Obligation or vinculum juris, and were all requited by
a payment of money. This peculiarity, however, is most strongly
brought out in the consolidated Laws of the Germanic tribes.
Without an exception, they describe an immense system of money
compensations for homicide, and with few exceptions, as large a
scheme of compensations for minor injuries. "Under Anglo-Saxon
law," writes Mr. Kemble (Anglo-Saxons, i. 177), "a sum was placed
on the life of every free man, according to his rank, and a
corresponding sum on every wound that could be inflicted on his
person, for nearly every injury that could be done to his civil
rights, honour or peace; the sum being aggravated according to
adventitious circumstances." These compositions are evidently
regarded as a valuable source of income; highly complex rules
regulate the title to them and the responsibility for them; and,
as I have already had occasion to state, they often follow a very
peculiar line of devolution, if they have not been acquitted at
the decease of the person to whom they belong. If therefore the
criterion of a delict, wrong, or tort be that the person who
suffers it, and not the State, is conceived to be wronged, it may
be asserted that in the infancy of jurisprudence the citizen
depends for protection against violence or fraud not on the Law
of Crime but on the Law of Tort. 
    Torts then are copiously enlarged upon in primitive
jurisprudence. It must be added that Sins are known to it also.
Of the Teutonic codes it is almost unnecessary to make this
assertion, because those codes, in the form in which we have
received them,were compiled or recast by Christian legislators.
But it is also true that non-Christian bodies of archaic law
entail penal consequences on certain classes of acts and on
certain classes of omissions, as being violations of divine
prescriptions and commands. The law administered at Athens by the
Senate of Areopagus was probably a special religious code, and at
Rome, apparently from a very early period, the Pontifical
jurisprudence punished adultery, sacrilege and perhaps murder.
There were therefore in the Athenian and in the Roman States laws
punishing sins. There were also laws punishing torts. The
conception of offence against God produced the first class of
ordinances; the conception of offence against one's neighbour
produced the second; but the idea of offence against the State or
aggregate community did not at first produce a true criminal
jurisprudence. 
    Yet it is not to be supposed that a conception so simple and
elementary as that of wrong done to the State was wanting in any
primitive society. It seems rather that the very distinctness
with which this conception is realised is the true cause which at
first prevents the growth of a criminal law At all events, when
the Roman community conceived itself to be injured, the analogy
of a personal wrong received was carried out to its consequences
with absolute literalness, and the State avenged itself by a
single act on the individual wrong-doer. The result was that, in
the infancy of the commonwealth, every offence vitally touching
its security or its interests was punished by a separate
enactment of the legislature. And this is the earliest conception
of a crimen or Crime -- an act involving such high issues that
the State, instead of leaving its cognisance to the civil
tribunal or the religious court, directed a special law or
privilegium against the perpetrator. Every indictment therefore
took the form of a bill of pains and penalties, and the trial of
a criminal was a proceeding wholly extraordinary, wholly
irregular, wholly independent of settled rules and fixed
conditions. Consequently, both for the reason that the tribunal
dispensing justice was the sovereign state itself and also for
the reason that no classification of the acts prescribed or
forbidden was possible, there was not at this epoch any Law of
crimes, any criminal jurisprudence. The procedure was identical
with the forms of passing an ordinary statute; it was set in
motion by the same persons and conducted with precisely the same
solemnities. And it is to be observed that, when a regular
criminal law with an apparatus of Courts and officers for its
administration had afterwards come into being, the old procedure,
as might be supposed from its conformity with theory, still in
strictness remained practicable; and, much as resort to such an
expedient was discredited, the people of Rome always retained the
power of punishing by a special law offences against its majesty.
The classical scholar does not require to be reminded that in
exactly the same manner the Athenian Bill of Pains and Penalties,
or, survived the establishment of regular tribunals. It is known
too that when the freemen of the Teutonic races assembled for
legislation, they also claimed authority to punish offences of
peculiar blackness or perpetrated by criminals of exalted
station. Of this nature was the criminal jurisdiction of the
Anglo-Saxon Witenagemot. 
    It may be thought that the difference which I have asserted
to exist between the ancient and modern view of penal law has
only a verbal existence. The community it may be said, besides
interposing to punish crimes legislatively, has from the earliest
times interfered by its tribunals to compel the wrong doer to
compound for his wrong, and, if it does this, it must always have
supposed that in some way it was injured through his offence.
But, however rigorous this inference may seem to us now-a-days,
it is very doubtful whether it was actually drawn by the men of
primitive antiquity. How little the notion of injury to the
community had to do with the earliest interferences of the State
through its tribunals, is shown by the curious circumstances that
in the original administration of justice, the proceedings were a
close imitation of the series of acts which were likely to be
gone through in private life by persons who were disputing, but
who afterwards suffered their quarrel to be appeased. The
magistrate carefully simulated the demeanour of a private
arbitrator casually called in. 
    In order to show that this statement is not a mere fanciful
conceit, I will produce the evidence on which it rests. Very far
the most ancient judicial proceeding known to us is the Legis
Actio Sacramenti of the Romans, out of which all the later Roman
Law of Actions may be proved to have grown. Gaius carefully
describes its ceremonial. Unmeaning and grotesque as it appears
at first sight, a little attention enables us to decipher and
interpret it. 
    The subject of litigation is supposed to be. in Court. If it
is moveable, it is actually there. If it be immoveable, a
fragment or sample of it is brought in its place; land, for
instance, is represented by a clod, a house by a single brick. In
the example selected by Gaius, the suit is for a slave. The
proceeding begins by the plaintiff's advancing with a rod, which,
as Gaius expressly tells, symbolised a spear. He lays hold of the
slave and asserts a right to him with the words, "Hunc ego
hominem ex Jure Quiritium meum esse dico secundum suam causam

sicut dixi." and then saying, "Ecce tibi Vindictam imposui," he
touches him with the spear. The defendant goes through the same
series of acts and gestures. On this the Praetor intervenes, and
bids the litigants relax their hold, "Mittite ambo hominem." They
obey, and the plaintiff demands from the defendant the reason of
his interference, "Postulo anne dicas qua ex causa vindicaveris."

a question which is replied to by a fresh assertion of right,
"Jus peregi sicut vindictam imposui." On this, the first claimant
offers to stake a sum of money, called a Sacramentum, on the
justice of his own case, "Quando tu injuria provocasti, Daeris
Sacramento te provoco," and the defendant, in the phrase
"Similiter ego te," accepts the wager. The subsequent proceedings
were no longer of a formal kind, but it is to be observed that
the Praetor took security for the Sacramentum, which always went
into the coffers of the State. 
    Such was the necessary preface of every ancient Roman suit.
It is impossible, I think, to refuse assent to the suggestion of
those who see in it a dramatisation of the Origin of Justice. Two
armed men are wrangling about some disputed property The Praetor,
vir pietate gravis, happens to be going by, and interposes to
stop the contest. The disputants state their case to him, and
agree that he shall arbitrate between them, it being arranged
that the loser, besides resigning the subject of the quarrel,
shall pay a sum of money to the umpire as remuneration for his
trouble and loss of time. This interpretation would be less
plausible than it is, were it not that, by a surprising
coincidence, the ceremony described by Gaius as the imperative
course of proceeding in a Legis Actio is substantially the same
with one of the two subjects which the God Hephaestus is
described by Homer as moulding into the First Compartment of the
Shield of Achilles. In the Homeric trial-scene, the dispute, as
if expressly intended to bring out the characteristics of
primitive society, is not about property but about the
composition for a homicide. One person asserts that he has paid
it, the other that he has never received it. The point of detail,
however, which stamps the picture as the counterpart of the
archaic Roman practice is the reward designed for the judges. Two
talents of gold lie in the middle, to be given to him who shall
explain the grounds of the decision most to the satisfaction of
the audience, The magnitude of this sum as compared with the
trifling amount of the Sacramentum seems to me indicative of the
indifference between fluctuating usage and usage consolidated
into law. The scene introduced by the poet as a striking and
characteristic, but still only occasional, feature of city-life
in the heroic age has stiffened, at the opening of the history.
of civil process, into the regular, ordinary formalities of a
lawsuit. It is natural therefore that in the Legis Actio the
remuneration of the Judge should be reduced to a reasonable sum,
and that, instead of being adjudged to one of a number of
arbitrators by popular acclamation, it should be paid as a matter
of course to the State which the Praetor represents. But that the
incidents described so vividly by homer, and by Gaius with even
more than the usual crudity of technical language, have
substantially the same meaning, I cannot doubt; and, in
confirmation of this view, it may be added that many observers of
the earliest judicial usages of modern Europe have remarked that
the fines inflicted by Courts on offenders were originally
sacramenta. The State did not take from the defendant a
composition for any wrong supposed to be done to itself, but
claimed a share in the compensation awarded to the plaintiff
simply as the fair price of its time and trouble. Mr. Kemble
expressly assigns this character to the Anglo-Saxon bannum or
fredum. 
    Ancient law furnishes other proofs that the earliest
administrators of justice simulated the probable acts of persons
engaged in a private quarrel. In settling the damages to be
awarded, they took as their guide the measure of vengeance likely
to be exacted by an aggrieved person under the circumstances of
the case. This is the true explanation of the very different
penalties imposed by ancient law on offenders caught in the act
or soon after it and on offenders detected after considerable
delay some strange exemplifications of this peculiarity are
supplied by the old Roman law of Theft. The Laws of the Twelve
Tables seem to have divided Thefts into Manifest and
Non-Manifest, and to have allotted. extraordinarily different
penalties to the offence according as it fell under one head or
the other. The Manifest Thief was he who was caught within the
house in which he had been pilfering, or who was taken while
making off to a place of safety with the stolen goods; the Twelve
Tables condemned him to be put to death if he were already a
slave, and, if he was a freeman, they made him the bondsman of
the owner of the property. The Non-Manifest Thief was he who was
detected under any other circumstances than those described; and
the old code simply directed that an offender of this sort should
refund double the value of what he had stolen. In Gaius's day the
excessive severity of the Twelve Tables to the Manifest Thief had
naturally been much mitigated, but the law still maintained the
old principle by mulcting him in fourfold the value of the stolen
goods, while the Non-Manifest Thief still continued to pay merely
the double. The ancient lawgiver doubtless considered that the
injured proprietor, if left to himself, would inflict a very
different punishment when his blood was hot from that with which
he would be satisfied when the Thief was detected after a
considerable interval; and to this calculation the legal scale of
penalties was adjusted. The principle is precisely the same as
that followed in the Anglo-Saxon and other Germanic codes, when
they suffer a thief chased down and caught with the booty to be
hanged or decapitated on the spot, while they exact the full
penalties of homicide from anybody who kills him after the
pursuit has been intermitted. These archaic distinctions bring
home to us very forcibly the distance of a refined from a rude
jurisprudence. The modem administrator of justice has confessedly
one of the hardest tasks before him when he undertakes to
discriminate between the degrees of criminality which belong to
offences falling within the same technical description. It is
always easy to say that a man is guilty of manslaughter, larceny,
or bigamy, but it is often most difficult to pronounce what
extent of moral guilt he has incurred, and consequently what
measure of punishment he has deserved. There is hardly any
perplexity in casuistry, or in the analysis of motive, which we
may not be called upon to confront, if we attempt to settle such
a point with precision; and accordingly the law of our day shows
an increasing tendency to abstain as much as possible from laying
down positive rules on the subject. In France, the jury is left
to decide whether the offence which it finds committed has been
attended by extenuating circumstances; in England, a nearly
unbounded latitude in the selection of punishments is now allowed
to the judge; while all States have in reserve an ultimate remedy
for the miscarriages of law in the Prerogative of Pardon,
universally lodged with the Chief Magistrate. It is curious to
observe how little the men of primitive times were troubled with
these scruples, how completely they were persuaded that the
impulses of the injured person were the proper measure of the
vengeance he was entitled to exact, and how literally they
imitated the probable rise and fall of his passions in fixing
their scale of punishment. I wish it could be said that their
method of legislation is quite extinct. There are, however,
several modern systems of law which, in cases of graver wrong,
admit the fact of the wrong doer leaving been taken in the act to
be pleaded in justification of inordinate punishment inflicted on
them by the sufferer-an indulgence which, though superficially
regarded it may seem intelligible, is based, as it seems to me,
on a very low morality. 
    Nothing, I have said, can be simpler than the considerations
which ultimately led ancient societies to the formation of a true
criminal jurisprudence. The State conceived itself to be wronged,
and the Popular Assembly struck straight at the offender with the
same movement which accompanied its legislative action. it is
further true of the ancient world though not precisely of the
modern, as I shall have occasion to point out -- that the
earliest criminal tribunals were merely subdivisions, or
committees, of the legislature. This, at all events, is the
conclusion pointed at by the legal history of the two great
states of antiquity, with tolerable clearness in one case, and
with absolute distinctness in the other. The primitive penal law
of Athens entrusted the castigation of offences partly to the
Archons, who seem to have punished them as torts, and partly to
the Senate of Areopagus, which punished them as sins. Both
jurisdictions were substantially transferred in the end to the
Heliaea, the High Court of Popular Justice, and the functions of
the Archons and of the Areopagus became either merely ministerial
or quite insignificant. But "Heliaea" is only an old word for
Assembly; the Heliaea of classical times was simply the Popular
Assembly convened for judicial purposes, and the famous
Dikasteries of Athens were only its subdivisions or panels. The
corresponding changes which occurred at Rome are still more
easily interpreted, because the Romans confined their experiments
to the penal law, and did not, like the Athenians, construct
popular courts with a civil as well as a criminal jurisdiction.
The history of Roman criminal jurisprudence begins with the old
Judicia Populi, at which the Kings are said to have presided.
These were simply solemn trials of great offenders under
legislative forms. It seems, however that from an early period
the Comitia had occasionally delegated its criminal jurisdiction
to a Quaestio or Commission, which bore much the same relation to
the Assembly as a Committee of the House of Commons bears to the
House itself, except that the Roman Commissioners or Quaestores
did not merely report to the Comitia, but exercised all powers
which that body was itself in the habit of exercising, even to
the passing sentence on the Accused. A Quaestio of this sort was
only appointed to try a particular offender, but there was
nothing to prevent two or three Quaestiones sitting at the same
time; and it is probable that several of them were appointed
simultaneously, when several grave cases of wrong to the
community had occurred together. There are also indications that
now and then these Quaestiones approached the character of our
Standing Committees, in that they were appointed periodically,
and without waiting for occasion to arise in the commission of
some serious crime. The old Quaestores Parricidii, who are
mentioned in connection with transactions of very ancient date,
as being deputed to try (or, as some take it, to search out and
try) all cases of paricide and murder, seem to have been
appointed regularly every year; and the Duumviri Perduellionis,
or Commission of Two for trial of violent injury to the
Commonwealth, are also believed by most writers to have been
named periodically. The delegations of power to these latter
functionaries bring us some way forwards. instead of being
appointed when and as state-offences were committed, they had a
general, though a temporary jurisdiction over such as might be
perpetrated. Our proximity to a regular criminal jurisprudence is
also indicated by the general terms "Parricidium" and
"Perduellio" which mark the approach to something like a
classification of crimes. 
    The true criminal law did not however come into existence
till the year B.C. 149, when L. Calpurnius Piso carried the
statute known as the Lex Calpurnia de Repetundis. The law applied
to cases Repetundarum Pecuniarum, that is, claims by Provincials
to recover monies improperly received by a Governor-General, but
the great and permanent importance of this statute arose from its
establishing the first Quaestio Perpetua. A Quaestio Perpetua was
a Permanent Commission as opposed to those which were occasional
and to those which were temporary. It was a regular criminal
tribunal whose existence dated from the passing of the statute
creating it and continued till another statute should pass
abolishing it. Its members were not specially nominated, as were
the members of the older Quaestiones, but provision was made in
the law constituting it for selecting from particular classes the
judges who were to officiate, and for renewing them in conformity
with definite rules. The offences of which it took cognisance
were also expressly named and defined in this statute, and the
new Quaestio had authority to try and sentence all persons in
future whose acts should fall under the definitions of crime
supplied by the law. It was therefore a regular criminal
judicature, administering a true criminal jurisprudence. 
    The primitive history of criminal law divides itself
therefore into four stages. Understanding that the conception of
Crime, as distinguished from that of Wrong or Tort and from that
of Sin, involves the idea of injury to the State or collective
community, we first find that the commonwealth, in literal
conformity with the conception, itself interposed directly, and
by isolated acts, to avenge itself on the author of the evil
which it had suffered. This is the point from which we start;
each indictment is now a bill of pains and penalties, a special
law naming the criminal and prescribing his punishment. A second
step is accomplished, when the multiplicity of crimes compels the
legislature to delegate its powers to particular Quaestiones or
Commissions, each of which is deputed to investigate a particular
accusation, and if it be proved, to punish the particular
offender. Yet another movement is made when the legislature,
instead of waiting for the alleged commission of a crime as the
occasion of appointing a Quaestio, periodically nominates
Commissioners like the Quaestores Parricidii and the Duumviri
Perduellionis, on the chance of certain classes of crimes being
committed, and in the expectation that they will be perpetrated.
The last stage is reached when the Quaestiones from being
periodical or occasional become permanent Benches or
Chambers-when the judges, instead of being named in the
particular law nominating the Commission, are directed to be
chosen through all future time in a particular way and from a
particular class and when certain acts are described in general
language and declared to be crimes, to be visited, in the event
of their perpetration, with specified penalties appropriated to
each description. 
    If the Quaestiones Perpetuae had had a longer history, they
would doubtless have come to be regarded as a distinct
institution, and their relation to the Comitia would have seemed
no closer than the connection of our own Courts of Law with the
Sovereign, who is theoretically the fountain of justice. But the
imperial despotism destroyed them before their origin had been
completely forgotten, and, so long as they lasted, these
Permanent Commissions were looked upon by the Romans as the mere
depositaries of a delegated power. The cognisance of crimes was
considered a natural attribute of the legislature, and the mind
of the citizen never ceased to be carried back from the
Quaestiones, to the Comitia which had deputed them to put into
exercise some of its own inalienable functions. The view which
regarded the Quaestiones, even when they became permanent, as
mere Committees of the Popular Assembly -- as bodies which only
ministered to a higher authority -- had some important legal
consequences which left their mark on the criminal law to the
very latest period. One immediate result was that the Comitia
continued to exercise criminal jurisdiction by way of bill of
pains and penalties, long after the Quaestiones had been
established. Though the legislature had consented to delegate its
powers for the sake of convenience to bodies external to itself,
it did not follow that it surrendered them. The Comitia and the
Quaestiones went on trying and punishing offenders side by side;
and any unusual outburst of popular indignation was sure, until
the extinction of the Republic, to call down upon its object an
indictment before the Assembly of the Tribes.
    One of the most remarkable peculiarities of the institutions
of the Republic is also traceable to this dependance of the
Quaestiones on the Comitia. The disappearance of the punishment
of death from the penal system of Republican Rome used to be a
very favourite topic with the writers of the last century, who
were perpetually using it to point some theory of the Roman
character or of modem social economy The reason which can be
confidently assigned for it stamps it as purely fortuitous. Of
the three forms which the Roman legislature successively assumed,
one, it is well known-the Comitia Centuriata -- was exclusively
taken to represent the State as embodied for military operations.
The Assembly of the Centuries, therefore, had all powers which
may be supposed to be properly lodged with a General commanding
an army, and, among them, it had authority to subject all
offenders to the same correction to which a soldier rendered
himself liable by breaches of discipline. The Comitia Centuriata
could therefore inflict capital punishment. Not so, however, the
Comitia Curiata or Comitia Tributa, They were fettered on this
point by the sacredness with which the person of a Roman citizen,
inside the walls of the city, was invested by religion and law;
and, with respect to the last of them, the Comitia Tributa, we
know for certain that it became a fixed principle that the
Assembly of the Tribes could at most impose a fine. So long as
criminal jurisdiction was confined to the legislature, and so
long as the assemblies of the centuries and of the Tribes
continued to exercise co-ordinate powers, it was easy to prefer
indictments for graver crimes before the legislative body which
dispensed the heavier penalties; but then it happened that the
more democratic assembly, that of the Tribes, almost entirely
superseded the others, and became the ordinary legislature of the
later Republic. Now the decline of the Republic was exactly the
period during which the Quaestiones Perpetuae were established,
so that the statutes creating them were all passed by a
legislative assembly which itself could not, at its ordinary
sittings, punish a criminal with death. It followed that the
Permanent judicial Commissions, holding a delegated authority,
were circumscribed in their attributes and capacities by the
limits of the powers residing with the body which deputed them.
They could do nothing which the Assembly of the Tribes could not
have done; and, as the Assembly could not sentence to death, the
Quaestiones were equally incompetent to award capital punishment.
The anomaly thus resulting was not viewed in ancient times with
anything like the favour which it has attracted among the
moderns, and indeed, while it is questionable whether the Roman
character was at all the better for it, it is certain that the
Roman Constitution was a great deal the worse. Like every other
institution which has accompanied the human race down the current
of its history, the punishment of death is a necessity of society
in certain stages of the civilising process. There is a time when
the attempt to dispense with it baulks both of the two great
instincts which lie at the root of all penal law. Without it, the
community neither feels that it is sufficiently revenged on the
criminal, nor thinks that the example of his punishment is
adequate to deter others from imitating him. The incompetence of
the Roman Tribunals to pass sentence of death led distinctly and
directly to those frightful Revolutionary intervals, known as the
Proscriptions, during which all law was formally suspended simply
because party violence could find no other avenue to the
vengeance for which it was thirsting. No cause contributed so
powerfully to the decay of political capacity in the Roman people
as this periodical abeyance of the laws; and, when it had once
been resorted to, we need not hesitate to assert that the ruin of
Roman liberty became merely a question of time. If the practice
of the Tribunals had afforded an adequate vent for popular
passion, the forms of judiciAl procedure would no doubt have been
as flagrantly perverted as with us in the reigns of the later
Stuarts, but national character would not have suffered as deeply
as it did, nor would the stability of Roman institutions have
been as seriously enfeebled. 
    I will mention two more singularities of the Roman Criminal
System which were produced by the same theory of judicial
authority. They are, the extreme multiplicity of the Roman
criminal tribunals, and the capricious and anomalous
classification of crimes which characterised Roman penal
jurisprudence throughout its entire history. Every Quaestio, it
has been said, whether Perpetual or otherwise, had its origin in
a distinct statute. From the law which created it, it derived its
authority; it rigorously observed the limits which its charter
prescribed to it, and touched no form of criminality which that
charter did not expressly define. As then the statutes which
constituted the various Quaestiones were all called forth by
particular emergencies, each of them being in fact passed to
punish a class of acts which the circumstances of the time
rendered particularly odious or particularly dangerous, these
enactments made not the slightest reference to each other, and
were connected by no common principle. Twenty or thirty different
criminal laws were in existence together, with exactly the same
number of Quaestiones to administer them; nor was any attempt
made during the Republic to fuse these distinct judicial bodies
into one, or to give symmetry to the provisions of the statutes
which appointed them and defined their duties. The state of the
Roman criminal jurisdiction at this period, exhibited some
resemblances to the administration of civil remedies in England
at the time when the English Courts of Common Law had not as yet
introduced those fictitious averments into their writs which
enabled them to trespass on each other's peculiar province. Like
the Quaestiones, the Courts of Queen's Bench, Common Pleas, and
Exchequer were all theoretical emanations from a higher
authority, and each entertained a special class of cases supposed
to be committed to it by the fountain of its jurisdiction; but
then the Roman Quaestiones were many more than three in number,
and it was infinitely less easy to discriminate the acts which
fell under the cognisance of each Quaestio, than to distinguish
between the provinces of the three Courts in Westminster Hall.
The difficulty of drawing exact lines between the spheres of the
different Quaestiones made the multiplicity of Roman tribunals
something more than a mere inconvenience; for we read with
astonishment that when it was not immediately clear under what
general description a man's alleged offences ranged themselves,
he might be indicted at once or successively before several
different Commissions, on the chance of some one of them
declaring itself competent to convict him; and, although
conviction by one Quaestio ousted the jurisdiction of the rest,
acquittal by one of them could not be pleaded to an accusation
before another. This was directly contrary to the rule of the
Roman civil law; and we may be sure that a people so sensitive as
the Romans to anomalies (or, as their significant phrase was, to
inelegancies) in jurisprudence, would not long have tolerated it,
had not the melancholy history of the Quaestiones caused them to
be regarded much more as temporary weapons in the hands of
factions than as permanent institutions for the correction of
crime. The Emperors soon abolished this multiplicity and conflict
of jurisdiction; but it is remarkable that they did not remove
another singularity of the criminal law which stands in close
connection with the number of the Courts. The classifications of
crimes which are contained even in the Corpus Juris of Justinian
are remarkably capricious. Each Quaestio had, in fact, confined
itself to the crimes committed to its cognisance by its charter.
These crimes, however, were only classed together in the original
statute because they happened to call simultaneously for
castigation at the moment of passing it. They had not therefore
anything necessarily in common; but the fact of their
constituting the particular subject-matter of trials before a
particular Quaestio impressed itself naturally on the public
attention, and so inveterate did the association become between
the offences mentioned in the same statute that, even when formal
attempts were made by Sylla and by the Emperor Augustus to
consolidate the Roman criminal law the legislator preserved the
old grouping. The Statutes of Sylla and Augustus were the
foundation of the penal jurisprudence of the Empire, and nothing
can be more extraordinary than some of the classifications which
they bequeathed to it. I need only give a single example in the
fact that perjury was always classed with cutting and wounding
and with poisoning, no doubt because a law of Sylla, the Lex
Cornelia de Sicariis et Veneficis, had given jurisdiction over
all these three forms of crime to the same Permanent Commission.
It seems too that this capricious grouping of crimes affected the
vernacular speech of the Romans. People naturally fell into the
habit of designating all the offences enumerated in one law by
the first name on the list, which doubtless gave its style to the
Law Court deputed to try them all. All the offences tried by the
Quaestio De Adulteriis would thus be called Adultery. 
    I have dwelt on the history and characteristics of the Roman
Quaestiones because the formation of a criminal jurisprudence is
nowhere else so instructively exemplified. The last Quaestiones
were added by the Emperor Augustus, and from that time the Romans
may be said to have had a tolerably complete criminal law.
Concurrently with its growth, the analogous process had gone on,
which I have called the conversion of Wrongs into Crimes, for
though the Roman legislature did not extinguish the civil, remedy
for the more heinous offences, it offered the sufferer a redress
which he was sure to prefer. Still, even after Augustus had
completed his legislation, several offences continued to be
regarded as Wrongs, which modern societies look upon exclusively
as Crimes; nor did they become criminally punishable till some
late but uncertain date, at which the law began to take notice of
a new description of offences called in the Digest crimina
extraordinaria. These were doubtless a class of acts which the
theory of Roman jurisprudence treated merely as wrongs; but the
growing sense of the majesty of society revolted from their
entailing nothing worse on their perpetrator than the payment of
money damages, and accordingly the injured person seems to have
been permitted, if he pleased, to pursue them as crimes extra
ordinem, that is by a mode of redress departing in some respect
or other from the ordinary procedure. From this period at which
these crimina extraordinaria were first recognised, the list of
crimes in the Roman State must have been as long as in any
community of the modern world. 
    It is unnecessary to describe with any minuteness the mode of
administering criminal justice under the Roman Empire, but it is
to be noted that both its theory and practice have had powerful
effect on modern society. The Emperors did not immediately
abolish the Quaestiones, and at first they committed an extensive
criminal jurisdiction to the Senate, in which, however servile it
might show itself in fact, the Emperor was no more nominally.
than a Senator like the rest. But some sort of collateral
criminal jurisdiction had been claimed by the Prince from the
first; and this, as recollections of the free commonwealth
decayed, tended steadily to gain at the expense of the old
tribunals. Gradually the punishment of crimes was transferred to
magistrates directly nominated by the Emperor and the privileges
of the Senate passed to the Imperial Privy Council, which also
became a Court of ultimate criminal appeal. Under these
influences the doctrine, familiar to the moderns, insensibly
shaped itself that the Sovereign is the fountain of all Justice
and the depositary of all Grace. It was not so much the fruit of
increasing adulation and servility as of the centralisation of
the Empire which had by this time perfected itself. The theory of
criminal justice had, in fact, worked round almost to the point
from which it started. It had begun in the belief that it was the
business of the collective community to avenge its own wrongs by
its own hand; and it ended in the doctrine that the chastisement
of crimes belonged in an especial manner to the Sovereign as
representative and mandatary of his people. The new view differed
from the old one chiefly in the air of awfulness and majesty
which the guardianship of justice appeared to throw around the
person of the Sovereign. 
    This later Roman view of the Sovereign's relation to justice
certainly assisted in saving modern societies from the necessity
of travelling through the series of changes which I have
illustrated by the history of the Quaestiones. In the primitive
law of almost all the races which have peopled Western Europe
there are vestiges of the archaic notion that the punishment of
crimes belongs to the general assembly of freemen; and there are
some States -- Scotland is said to be one of them -- in which the
parentage of the existing judicature can be traced up to a
Committee of the legislative body. But the development of the
criminal law was universally hastened by two causes, the memory
of the Roman Empire and the influence of the Church. On the one
hand traditions of the majesty of the Caesars, perpetuated by the
temporary ascendency of the House of Charlemagne, were
surrounding Sovereigns with a prestige which a mere barbarous
chieftain could never otherwise have acquired and were
communicating to the pettiest feudal potentate the character of
guardian of society and representative of the State. On the other
hand, the Church, in its anxiety to put a curb on sanguinary
ferocity, sought about for authority to punish the graver
misdeeds, and found it in those passages of Scripture which speak
with approval of the powers of punishment committed to the civil
magistrate. The New Testament was appealed to as proving that
secular rulers exist for the terror of evildoers; the Old
Testament, as laying down that "Whoso sheddeth man's blood, by
man shall his blood be shed." There can be no doubt, I imagine,
that modern ideas on the subject of crime are based upon two
assumptions contended for by the Church in the Dark Ages-first,
that each feudal ruler, in his degree, might be assimilated to
the Roman Magistrates spoken of by Saint Paul; and next, that the
offences which he was to chastise were those selected for
prohibition in the Mosaic Commandments, or rather such of them as
the Church did not reserve to her own cognisance. Heresy
(supposed to be included in the First and Second Commandments),
Adultery, and Perjury were ecclesiastical offences, and the
Church only admitted the co-operation of the secular arm for the
purpose of inflicting severer punishment in cases of
extraordinary aggravation. At the same time, she taught that
murder and robbery with their various modifications were under
the jurisdiction of civil rulers, not as an accident of their
position but by the express ordinance of God. 
    There is a passage in the writings of King Alfred (Kemble,
ii. 209) which brings out into remarkable clearness the struggle
of the various ideas that prevailed in his day as to the origin
of criminal jurisdiction. It will be seen that Alfred attributes
it partly to the authority of the Church and partly to that of
the Witan, while he expressly claims for treason against the lord
the same immunity from ordinary rules which the Roman Law of
Majestas had assigned to treason against the Caesar. "After this
it happened," he writes, "that many nations received the faith of
Christ, and there were many synods assembled throughout the
earth, and among the English race also after they had received
the faith of Christ, both of holy bishops and of their exalted
Witan. They then ordained that, out of that mercy which Christ
had taught, secular lords, with their leave, might without sin
take for every misdeed the bot in money which they ordained;
except in cases of treason against a lord, to which they dared
not assign any mercy because Almighty God adjudged none to them
that despised Him, nor did Christ adjudge any to them which sold
Him to death; and He commanded that a lord should be loved like
Himself."