an injury; and, when these obligations are ratified by law, the interested party may compel the performance by a judicial action. On this principle the civilians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice.163 1. The goddess of faith (of human and social faith) was Promises worshipped, not only in her temples, but in the lives of the Romans; and, if that nation was deficient in the more amiable qualities of benevolence and generosity, they astonished the Greeks by their sincere and simple performance of the most burthensome engagements.164 Yet among the same people, according to the rigid maxims of the patricians and decemvirs, a naked pact, a promise, or even an oath, did not create any civil obligation, unless it was confirmed by the legal form of a stipulation. Whatever might be the etymology of the Latin word, it conveyed the idea of a firm and irrevocable contract, which was always expressed in the mode of a question and answer. Do you promise to pay me one hundred pieces of gold? was the solemn interrogation of Seius. I do promise-was the reply of Sempronius. The friends of Sempronius, who answered for his ability and inclination, might be separately sued at the option of Seius; and the benefit of partition, or order of reciprocal actions, insensibly deviated from the strict theory of stipulation. The most cautious and deliberate consent was justly required to sustain the validity of a gratuitous promise; and the citizen who might have obtained a legal security incurred the suspicion of fraud, and paid the forfeit of his neglect. But the ingenuity of the civilians successfully laboured to convert simple engagements into the form of solemn stipulations. The prætors, as the guardians of social faith, admitted every rational evidence of a voluntary and deliberate act, which in their tribunal produced an equitable obligation, and for which they gave an action and a remedy.16 163 The Institutes of Caius (1. ii. tit. ix. x. p. 144-214), of Justinian (1. iii. tit. xiv-xxx. 1. iv. tit. i-vi.), and of Theophilus (p. 616-837), distinguish four sorts of obligations-aut re, aut verbis, aut literis, aut consensu; but I confess myself partial to my own division. [More accurately, obligations are the effect of either (1) contract or (2) delict, and there are four forms of contract-aut re, &c. author's attempt to improve the division is not successful.] The 164 How much is the cool, rational evidence of Polybius (1. vi. p. 693, [c. 56] 1. xxxi. p. 1459, 1460 [xxxii. 12]) superior to vague, indiscriminate applause-omnium maxime et præcipue fidem coluit (A. Gellius, xx. 1). 165 The Jus Prætorium de Pactis et Transactionibus is a separate and satisfactory treatise of Gerard Noodt (Opp. tom. i. p. 483-564). And I will here observe Benefits 2. The obligations of the second class, as they were contracted by the delivery of a thing, are marked by the civilians with the epithet of real 166 A grateful return is due to the author of a benefit; and whoever is entrusted with the property of another has bound himself to the sacred duty of restitution. In the case of a friendly loan the merit of generosity is on the side of the lender only, in a deposit on the side of the receiver; but in a pledge, and the rest of the selfish commerce of ordinary life, the benefit is compensated by an equivalent, and the obligation to restore is variously modified by the nature of the transaction. The Latin language very happily expresses the fundamental difference between the commodatum and the mutuum, which our poverty is reduced to confound under the vague and common appellation of a loan. In the former, the borrower was obliged to restore the same individual thing with which he had been accommodated for the temporary supply of his wants; in the latter, it was destined for his use and consumption, and he discharged this mutual engagement by substituting the same specific value, according to a just estimation of number, of weight, and of measure. dominion is transferred to the purchaser, and he repays the In the contract of sale, the absolute benefit with an adequate sum of gold or silver, the price and universal standard of all earthly possessions. The obligation of another contract, that of location, is of a more complicated kind. Lands or houses, labour or talents, may be hired for a definite term; at the expiration of the time, the thing itself must be restored to the owner, with an additional reward for the beneficial occupation and employment. In these lucrative contracts, to which may be added those of partnership and commissions, the civilians sometimes imagine the delivery of the object, and sometimes presume the consent of the parties. The substantial that the universities of Holland and Brandenburgh, in the beginning of the present 166 The nice and various subject of contracts by consent is spread over four not clearly enough brought out. (a) Mutuum and (b) commodatum, deposit and C pledge has been refined into the invisible rights of a mortgage or hypotheca; and the agreement of sale, for a certain price, imputes, from that moment, the chances of gain or loss to the account of the purchaser. It may be fairly supposed that every man will obey the dictates of his interest; and, if he accepts the benefit, he is obliged to sustain the expense, of the transaction In this boundless subject, the historian will observe the location of land and money, the rent of the one and the interest of the other, as they materially affect the prosperity of agriculture and commerce. The landlord was often obliged to advance the stock and instruments of husbandry, and to content himself with a partition of the fruits. If the feeble tenant was oppressed by accident, contagion, or hostile violence, he claimed a proportionable relief from the equity of the laws; five years were the customary term, and no solid or costly improvements could be expected from a farmer who, at each moment, might be ejected by the sale of the estate. 167 Usury,168 the inveter-Interest of ate grievance of the city, had been discouraged by the Twelve money Tables,169 and abolished by the clamours of the people. It was revived by their wants and idleness, tolerated by the discretion of the prætors, and finally determined by the Code of Justinian. Persons of illustrious rank were confined to the moderate profit 167 The covenants of rent are defined in the Pandects (1. xix.) and the Code (1. iv. tit. lxv.). The quinquennium, or term of five years, appears to have been a custom rather than a law; but in France all leases of land were determined in nine years. This limitation was removed only in the year 1775 (Encyclopedie Méthodique, tom. i. de la Jurisprudence, p. 668, 669); and I am sorry to observe that it yet prevails in the beauteous and happy country where I am permitted to reside. 168 I might implicitly acquiesce in the sense and learning of the three books of G. Noodt, de fœnore et usuris (Opp. tom. i. p. 175-268). The interpretation of the asses or centesimae usurae at twelve, the unciariae at one per cent. is maintained by the best critics and civilians: Noodt (1. ii. c. 2, p. 207), Gravina (Opp. p. 205, &c. 210), Heineccius (Antiquitat. ad Institut. 1. iii. tit. xv.), Montesquieu (Esprit des Loix, 1. xxii. c. 22, tom. ii. p. 36. Défense de l'Esprit des Loix, tom. iii. p. 478, &c.), and above all John Frederic Gronovius (de Pecuniâ Veteri, 1. iii. c. 13, p. 213-227 and his three Antexegeses, p. 455-655), the founder, or at least the champion, of this probable opinion; which is however perplexed with some difficulties. The centesima usura which subsisted from the later republic to Justinian was 12 per cent. (one hundredth of the capital per month). It is still a question whether the foenus unciarium of the xii. Tables was the same (12 per cent.), or of the capital.] 169 Primo xii. tabulis sanctitum est nequis unciario fœnore amplius exerceret (Tacit. Annal. vi. 16). Pour peu (says Montesquieu, Esprit des Loix, 1. xxii. c. 22) qu'on soit versé dans l'histoire de Rome, on verra qu'une pareille loi ne devoit pas être l'ouvrage des décemvirs. Was Tacitus ignorant-or stupid? But the wiser and more virtuous patricians might sacrifice their avarice to their ambition, and might attempt to check the odious practice by such interest as no lender would accept, and such penalties as no debtor would incur. Injuries I F of four per cent.; six was pronounced to be the ordinary and 3. Nature and society impose the strict obligation of repairing an injury; and the sufferer by private injustice acquires a personal right and a legitimate action. If the property of another be entrusted to our care, the requisite degree of care may rise and fall according to the benefit which we derive from such temporary possession; we are seldom made responsible for inevitable accident, but the consequences of a voluntary fault must always be imputed to the author.173 A Roman pursued and recovered his stolen goods by a civil action of theft; they might pass through a succession of pure and innocent hands, but nothing less than a prescription of thirty years could extinguish his original claim. They were restored by the sentence of the prætor, and the injury was compensated by double, or threefold, or even quadruple damages, as the deed had been perpetrated by secret fraud or open rapine, as the robber had been surprised in the fact or detected by a subsequent research. The Aquilian law 174 defended the living property of a citizen, his slaves and cattle, from the stroke of 170 Justinian has not condescended to give usury a place in his Institutes; but the necessary rules and restrictions are inserted in the Pandects (l. xxii. tit. i. ii.), and the Code (1. iv. tit. xxxii. xxxiii.). 171 The fathers are unanimous (Barbeyrac, Morale des Pères, p. 144, &c.): Cyprian, Lactantius, Basil, Chrysostom (see his frivolous arguments in Noodt, L. i. c. 7, p. 188), Gregory of Nyssa, Ambrose, Jerom, Augustin, and a host of councils and casuists. 172 Cato, Seneca, Plutarch, have loudly condemned the practice or abuse of usury. According to the etymology of fænus and rókos, the principal is supposed to generate the interest: a breed of barren metal, exclaims Shakspeare-and the stage is the echo of the public voice. [Cp. Aristotle, Politics, i. 10 ad fin.] 173 Sir William Jones has given an ingenious and rational Essay on the law of Bailment (London, 1781, p. 127, in 8vo). He is perhaps the only lawyer equally conversant with the year-books of Westminster, the commentaries of Ulpian, the Attic pleadings of Isæus, and the sentences of Arabian and Persian cadhis. 174 Noodt (Opp. tom. i. p. 137-172) has composed a separate treatise, ad Legem Aquiliam (Pandest, 1. ix. tit. ii.). malice or negligence; the highest price was allowed that could be ascribed to the domestic animal at any moment of the year preceding his death; a similar latitude of thirty days was granted on the destruction of any other valuable effects. A personal injury is blunted or sharpened by the manners of the times and the sensibility of the individual; the pain or the disgrace of a word or blow cannot easily be appreciated by a pecuniary equivalent. The rude jurisprudence of the decemvirs had confounded all hasty insults, which did not amount to the fracture of a limb, by condemning the aggressor to the common penalty of twenty-five asses. But the same denomination of money was reduced, in three centuries, from a pound to the weight of half an ounce ; and the insolence of a wealthy Roman indulged himself in the cheap amusement of breaking and satisfying the law of the Twelve Tables. Veratius ran through the streets striking on the face the inoffensive passengers, and his attendant purse-bearer immediately silenced their clamours by the legal tender of twenty-five pieces of copper, about the value of one shilling.175 The equity of the prætors examined and estimated the distinct merits of each particular complaint. In the adjudication of civil damages, the magistrate assumed a right to consider the various circumstances of time and place, of age and dignity, which may aggravate the shame and sufferings of the injured person; but, if he admitted the idea of a fine, a punishment, an example, he invaded the province, though, perhaps, he supplied the defects, of the criminal law. IV. Of crimes The execution of the Alban dictator, who was dismembered ments by eight horses, is represented by Livy as the first and the last instance of Roman cruelty in the punishment of the most atrocious crimes.176 But this act of justice, or revenge, was inflicted on a foreign enemy in the heat of victory, and at the command of a single man. The Twelve Tables afford a more severity of decisive proof of the national spirit, since they were framed by Tables the wisest of the senate and accepted by the free voices of the people; yet these laws, like the statutes of Draco,177 are written 175 Aulus Gellius (Noct. Attic. xx. 1.) borrowed his story from the commentaries of Q. Labeo on the xii tables. 176 The narrative of Livy (i. 28) is weighty and solemn. At tu dictis Albane maneres is an harsh reflection, unworthy of Virgil's humanity (Æneid, viii. 643). Heyne, with his usual good taste, observes that the subject was too horrid for the shield of Æneas (tom. iii. p. 229). 177 The age of Draco (Olympiad xxxix. 1) is fixed by Sir John Marsham (Canon Chronicus, p. 593-596) and Corsini (Fasti Attici, tom. iii. p. 62). For his laws, see the writers on the government of Athens, Sigonius, Meursius, Potter, &c. and punish the Twelve |