CHAPTER IX

THE EARLY HISTORY OF CONTRACT

THERE are few general propositions concerning the
age to which we belong which seem at first sight
likely to be received with readier concurrence
than the assertion that the society of our day
is mainly distinguished from that of preceding
generations by the largeness of the sphere which
is occupied in it by Contract. Some of the
phenomena on which this proposition rests are
among those most frequently singled out for
notice, for comment, and for eulogy. Not many
of us are so unobservant as not to perceive that
in innumerable cases where old law fixed a man's
social position irreversibly at his birth, modern
law allows him to create it for himself by con-
vention ; and indeed several of the few exceptions
which remain to this rule are constantly de-
nounced 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 by-gone 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 be-
tween past ages and the present enters into the

ajo



CHAP, ix] CONTRACT AND POLITICAL ECONOMY 27!

very essence of the most famous contemporary
speculations. It is certain that the science of
Political Economy, the only department of moral
inquiry which has made any considerable progress
in our day, would fail to correspond with the facts
of life if it were not true that Imperative Law
had abandoned the largest part of the field which
it once occupied, and had left men to settle
rules of conduct for themselves with a liberty
never allowed to them till recently. The bias
indeed of most persons trained in political economy
is to consider the general truth on which their
science reposes as entitled to become universal,
and, when they apply it as an art, their efforts
are ordinarily directed to enlarging the province
of Contract and to curtailing that of Imperative
Law, except so far as law is necessary to enforce
the performance of Contracts. The impulse given
by thinkers who are under the influence of these
ideas is beginning to be very strongly felt in the
Western world. Legislation has nearly confessed
its inability to keep pace with the activity of man
in discovery, in invention, and in the manipulation
of accumulated wealth ; and the law even of
the least advanced communities tends more and
more to become a mere surface-stratum, having
under it an ever-changing assemblage of contrac-
tual 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 back-
ward a condition that we need not be surprised



272 EARLY HISTORY OF CONTRACT [CHAP, ix

at not finding these truths recognised in the
commonplaces which pass current concerning
the progress of society. These commonplaces
answer much more to our prejudices than to our
convictions. The strong disinclination of most
men to regard morality as advancing seems to
be especially powerful when the virtues on which
Contract depends are in question, and many of us
have an almost instinctive reluctance to admitting
that good faith and trust in our fellows are more
widely diffused than of old, or that there is any-
thing 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 aston-
ishing from their complication as well as shocking
from their criminality. But the very character
of these frauds shows clearly that, before they
became possible, the moral obligations of which
they are the breach must have been more than
proportionately developed. It is the confidence
reposed and deserved by the many which affords
facilities for the bad faith of the few, so that,
if colossal examples of dishonesty occur, there is
no surer conclusion than that scrupulous honesty
is displayed in the average of the transactions
which, in the particular case, have supplied the
delinquent with his opportunity. If we insist
on reading the history of morality as reflected
in jurisprudence, by turning our eyes not on the
law of Contract but on the law of Crime, we must
be careful that we read it aright. The only form
of dishonesty treated of in the most ancient



CHAP, ix] THEORIES OF CONTRACT 273

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 re-
ferred 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

18



274 EARLY HISTORY OF CONTRACT [CHAP, ix

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 pas-
sions, derived all its sap from the speculations of
lawyers. True it certainly is that the famous
Englishmen, for whom it had first had attraction,
valued it chiefly for its political serviceableness,
but, as I shall presently attempt to explain, they
would never have arrived at it, if politicians had
not long conducted their controversies in "legal
phraseology. Nor were the English authors of
the theory blind to that speculative amplitude
which recommended it so strongly to the French-
men 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



CHAP, ix] ANALYSIS OF SOCIAL PHENOMENA 275

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 fore-
fathers 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 de-
generates into an idle exercise of curiosity, and
is especially apt to incapacitate the inquirer for



276 EARLY HISTORY OF CONTRACT [CHAP, ix

comprehending states of society which differ con-
siderably 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 Con-
tracts, 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 under-
standing 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



CHAP.IX! EARLY NOTIONS OF CONTRACT 277

station into which he is born, and next from the
imperative commands addressed to him by the
chief of the household of which he forms part.
Such a system leaves the very smallest room for
Contract. The members of the same family (for
so we may interpret the evidence) are wholly
incapable of contracting with each other, and the
family is entitled to disregard the engagements
by which any one of its subordinate members has
attempted to bind it. Family, it is true, may
contract with family, chieftain with chieftain, but
the transaction is one of the same nature, and
encumbered by as many formalities, as the
alienation of property, and the disregard of one
iota of the performance is fatal to the obligation.
The positive duty resulting from one man's
reliance on the word of another is among the
slowest conquests of advancing civilisation.

Neither Ancient Law nor any other source of
evidence discloses to us society entirely destitute
of the conception of Contract. But the concep-
tion, when it first shows itself, is obviously rudi-
mentary. 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



278 EARLY HISTORY OF CONTRACT [CHAP, ix

maturity* At first, nothing is seen like the inter-
position of law to compel the performance of
a promise. That which the law arms with its
sanctions is not a promise, but a promise accom-
panied with a solemn ceremonial. Not only are
the 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 depend.
Slowly, but most distinctly, the mental engage-
ment 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 Con-
vention ; and when the Convention has once been



CHAP, ix] EARLY ROMAN CONTRACTS 279

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
da\spi 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 y 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 tes 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 accompani-
ments 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



280 EARLY HISTORY OF CONTRACT [CHAP, ix

hence has. arisen the difficulty, for the definition
thus ^pited appears to confound Contracts and
Conveyances, which in the philosophy of juris-
prudence are not simply kept apart, but are
actually opposed to each other. The jus in re,
right inrem, right " availing against all the world/ 1
or Proprietary Right, is sharply distinguished by
the analyst of mature jurisprudence from the jus
ad rent, right in per sonant, right " availing against
a single individual or group/ ' or Obligation. Now
Conveyances transfer Proprietary Rights, Con-
tracts create Obligations how then can the two
be included under the same name or same general
conception ? This, like many similar embarrass-
ments, has been occasioned by the error of ascrib-
ing 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 indica-
tions not to be mistaken of a state of social affairs
in which Conveyances and Contracts were practi-
cally 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 con-
ceptions and by legal phraseology in the infancy
of Jurisprudence. The change which they under-
go appears to be a change from general to special ;
or, as we might otherwise express it, the ancient
conceptions and the ancient terms are subjected



CHAP, ix] SPECIALISING PROCESS IN ANCIENT LAW 28l

to a process of gradual specialisation. An ancient
legal conception corresponds not to one t$zt 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 Tiistory
of Jurisprudence at the next stage, we find that
the subordinate conceptions have gradually dis-
engaged 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 cha-
racter, 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 abso-
lutely certain of its old Roman name, but there
is very strong reason for believing, from the
number of expressions indicating shades of the
notion of power into which the word manus enters,
that the ancient general term was manus. But,
when Roman law has advanced a little, both the
name and the idea have become specialised.
Power is discriminated, both in word and in con-
ception, according to the object over which it is
exerted. Exercised over material commodities
or slaves, it has become dominium over children,



282 EARLY HISTORY OF CONTRACT [CHAP.

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 Mancipa-
tion. The ancient Nexum still designates the
same ceremony, but only when it is employed for
the special purpose of solemnising a contract.

When two or three legal conceptions are spoken
of as anciently blended in one, it is not intended
to imply that some one of the included notions
may not be older than the others, or, when those
others have been formed, may not greatly pre-
dominate over and take precedence of 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



CHAP, ix] THE NEXUM 283

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 exer-
cised, 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 per-
version of the Nexum from its original functions
first gave rise to its employment in Contracts, and
that the very slightness of the change long pre-
vented 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 con-
fidence as the early history of Wills, but we are
not quite without hints that contracts first showed



284 EARLY HISTORY OF CONTRACT [CHAP, ix

themselves through the nexum being put to a new
use and afterwards obtained recognition as dis-
tinct 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 libripcns, 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 y 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 obliga-
tion 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



CHAP, ix] CONVEYANCES AND CONTRACTS 285

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 im-
portance for many reasons. The speculations of
the last century concerning mankind in a state
of nature, are not unfairly summed up in the
doctrine that " in the primitive society property
was nothing, and obligation everything " ; and it
will now be seen that, if the proposition were
reversed, it would be nearer the reality. On the
other hand, considered historically, the primitive
association of Conveyances and Contracts ex-
plains something which often strikes the scholar
and jurist as singularly enigmatical, I mean the
extraordinary and uniform severity of very ancient
systems of law to debtors, and the extravagant
powers which they lodge with creditors. When
once we understand that the nexum was artificially
prolonged to give time to the debtor, we can better
comprehend his position in the eye of the public
and of the law. His indebtedness was doubtless
regarded as an anomaly, and suspense of payment
in general as an artifice and a distortion of strict
rule. The person who had duly consummated his
part in the transaction must, on the contrary,
have stood in peculiar favour ; and nothing would
seem more natural than to arm him with stringent
facilities for enforcing the completion of a pro-
ceeding which, of strict right, ought never to have
been extended or deferred.



286 EARLY HISTORY OF CONTRACT [CHAP, tx

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, Manci-
pium or Mancipatio, had to be used for the purpose
of designating the true nexum or transaction in
which the property was really transferred. Con-
tracts are therefore now severed from Convey-
ances, and the first stage in their history is accom-
plished, 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 attempt-
ing 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 signifi-
cation 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



CHAP. ] ROMAN ANALYSIS OF AGREEMENT 287

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 clear-
ness 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 Obliga-
tion are chiefly those classed under the heads of
Contract and Delict, of Agreement and Wrong ;
but a variety of other acts have a similar conse-
quence which are not capable of being comprised
in an exact classification. It is to be remarked,
however, that the Pact 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



288 EARLY HISTORY OF CONTRACT [CHAP, ix

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 figu-
rative image was allowed to present itself, explains
an otherwise puzzling peculiarity of Roman legal
phraseology, the fact that " Obligation " signifies
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 contract constituted the only
descriptions of engagement which the law would
enforce. The meaning of the fourfold distribution
is t 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 re-
quired over and above the mere agreement of the



CHAP, ix] CONVENTION AND CONTRACT 289

contracting parties. In the Verbal Contract, as
soon as the Convention was effected, a form of
words had to be gone through before the " vin-
culum juris " was attached to it. In the Literal
Contract, an entry in a ledger or table-book had
the effect of clothing the Convention with the
Obligation, and the same result followed, in the
case of the Real Contract, from the delivery of
the Res or Thing which was the subject of the
preliminary engagement. The contracting parties
can^e, 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
Nexilm. 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

19



2QO EARLY HISTORY OF CONTRACT [CHAP, ix

demanded by the primitive notion over and above
the mere agreement of the persons interested.
They formed the agency by which the Obligation
was ajanexed. The old Nexum has now be-
queathed 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 con-
veyance, 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 at 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 re-
flection. It is not to be disputed that they had
a value of this kind, which was gradually recog-
nised ; but there is proof that their function
in respect to Contracts was at first formal and
ceremonial in the statement of our authorities,



CHAP, ix] THE VERBAL CONTRACT 2QI

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 par-
ticular occasion.

But although it is essential for the proper
appreciation of the history of contract-law that
the Stipulation should be understood to have been
looked upon as a solemn form before it was
recognised as a useful security, it would be wrong
on the other hand to shut our eyes to its real
usefulness. The Verbal Contract, though it had
lost much of its ancient importance, survived to
the latest period of Roman jurisprudence j 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 Stipu-
lation 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



EARLY HISTORY OF CONTRACT ICHAP. ix

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 interro-
gation ; 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 con-
venience* sake with one of the parties, for ex-
ample, if we wished to speak generally of a con-
tractor, it is always the promisor at whom our
words are pointing. But the general language
of Roman law takes a different turn ; it alVays
regards the contract, if we may so speak, from
the point of view of the promise ; 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 stipu-
lation is most vividly illustrated by referring to
the actual examples in the pages of the Latin
comic dramatists. If the entire scenes are read



CHAP, ix] THE LITERAL CONTRACT 2Q3

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 medi-
tating the promise must have been arrested by
the question, and how ample was the opportunity
for withdrawal from an improvident undertaking.
In the Literal or Written Contract, the formal
act by which an Obligation was superinduced on
the Convention, was an entry of the sum due,
where it could be specifically ascertained, on the
debit side of a ledger. The explanation of this
contract turns on a point of Roman domestic
manners, the systematic character and exceeding
regularity of book-keeping in ancient times. There
are several minor difficulties of old Roman law,
as, for example, the nature of the Slave's Peculium,
which are only cleared up when we recollect that
a Roman household consisted of a number of
persons strictly accountable to its head, and that
every single item of domestic receipt and expendi-
ture, after being entered in waste books, was
transferred at stated periods to a general house-
hold 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



2Q4 EARLY HISTORY OF CONTRACT [CHAP, ix

a correspondent entry in his own books was
necessary to give it legal effect. The essential
point is however established, that, in the case
of this Contract, all formalities were dispensed
with on a condition being complied with. This
is another step downwards in the history of
contract-law.

The Contract which stands next in historical
succession, the Real Contract, shows a great
advance in ethical conceptions. Whenever any
agreement had for its object the delivery ei 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. 4 For
the first time then moral considerations appear
as an ingredient in Contract-law, and the Real
Contract differs from its two predecessors in
being founded on these, rather than on respect
for technical forms or on deference to Roman
domestic habits.

We now reach the fourth class, or Consensual
Contracts, the most interesting and important of



CHAP, ix] THE CONSENSUAL CONTRACTS 295

all. Four specified Contracts were distinguished
by this name : Mandatum, i.e. Commission or
Agency ; Societas or Partnership ; Emtio Ven-
ditio or Sale ; and Locatio Conductio or Letting
and Hiring. A few pages back, 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 tl!e 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 stipulations, and by



296 EARLY HISTORY OF CONTRACT [CHAP, ix

the Liter ce 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 unquestion-
ably 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 signi-
fication 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 Pere-
grinus, 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



CHAP. ] THE CONSENSUAL CONTRACTS 2Q7

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 qualifica-
tion, 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 "
hadbeen 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



298 EARLY HISTORY OF CONTRACT [CHAP, ix

and distinctions of the Roman lawyers. One of
them is the distinction between Natural and
Civil Obligations. When a person of full in-
tellectual 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 di absolutely refuse to recognise it ; and natural
obligations differed in many respects from obliga-
tions 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 pecu-
liar doctrine of the jurisconsults could not have
had its origin earlier than the period at which the
Convention was severed from the technical ingre-
dients 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 niiature
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 re-
covery of a debt could be met by showing a mere
informal agreement to waive or postpone the
payment.



CHAP, ix] NATURAL AND CIVIL OBLIGATION 299

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 in-
stances j 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}.
Pact! 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



3OO EARLY HISTORY OF CONTRACT [CHAP, ix

is the last to alter, and the Pacts equitably
enforced continued to be designated simply Prae-
torian Pacts.