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,160 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.161 A grateful return is due to the author of a benefit; and whoever is intrusted 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 p. 1459, 1460) superior to vague, indiscriminate applause-omnium maxime et præcipue fidem coluit (A. Gellius, xx. 1 [tom. ii. p. 289, ed. Bipont.]). 160 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 that the universities of Holland and Brandenburg, in the beginning of the present century, appear to have studied the civil law on the most just and liberal principles. 161 The nice and various subject of contracts by consent is spread over four books (xvii.-xx.) of the Pandects, and is one of the parts best deserving of the attention of an English student.b a The oldest Roman law does not seem to have admitted the obligatory force of pacta. A pact is necessarily the foundation of a contract, but at first it was not in se binding unless matured into contract by going through certain forms. It was the particular form resorted to which gave the name to the contract and caused it to be classed with the real, the verbal, or the literal contracts. The consensual contracts required no form, and were in fact only a special kind of pact. There is little doubt that the consensual contracts furnished the hint for the later doctrine -introduced apparently by the edictthat all pacts, founded on consideration, are in se obligatory. It seems that a pact might always have been pleaded by excep tio to rebut a claim.-S. b This is erroneously called "benefits." Gibbon enumerates various kinds of contracts, of which some alone are properly called benefits.-W. 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. In the contract of sale, the absolute dominion is transferred to the purchaser, and he repays the 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 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.162 Usury, 163 162 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 (Encyclopédie 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. 163 I might implicitly acquiesce in the sense and learning of the three books of G. Interest of the inveterate grievance of the city, had been discouraged by the Twelve Tables, 164 and abolished by the clamours of the money. 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 of four per cent.; six was pronounced to be the ordinary and legal standard of interest; eight was allowed for the convenience of manufacturers and merchants; twelve was granted to nautical insurance, which the wiser ancients had not attempted to define; but, except in this perilous adventure, the practice of exorbitant usury was severely restrained. 165 The most simple interest was condemned by the clergy of the East and West; 166 but the sense of mutual benefit, which had triumphed over the laws of the republic, has resisted with equal firmness the decrees of the church, and even the prejudices of mankind.167 Injuries. 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 intrusted to our care, the requisite degree of care may rise and fall according to the benefit which we derive from such Noodt, de fœnore et usuris (Opp. tom. i. p. 175-268). The interpretation of the asses or centesima usura at twelve, the unciaria 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 Pecunia 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. 164 Primo xii Tabulis sancitum est ne quis 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." 165 Justinian has not condescended to give usury a place in his Institutes; but the necessary rules and restrictions are inserted in the Pandects (1. xxii. tit. i. ii.) and the Code (1. iv. tit. xxxii. xxxiii.). 166 The fathers are unanimous (Barbeyrac, Morale des Pères, p. 144, &c.): Cyprian, Lactantius, Basil, Chrysostom (see his frivolous arguments in Noodt, 1. i. c. 7, p. 188), Gregory of Nyssa, Ambrose, Jerom, Augustin, and a host of councils and casuists. 167 Cato, Seneca, Plutarch, have loudly condemned the practice or abuse of usury. According to the etymology of foenus and roxos, 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. "The real nature of the foenus unciarium has been proved: it amounted in a year of twelve months to ten per cent. See, in the Magazine for Civil Law by M. Hugo, vol. v. p. 180, 184, an article of M. Schrader, following up the conjec tures of Niebuhr, Hist. Rom. tom. ii. p. 431.-W. Compare a very clear account of this question in the appendix to Mr. Travers Twiss's Epitome of Niebuhr, vol. ii. p. 257.-M. temporary possession; we are seldom made responsible for inevitable accident, but the consequences of a voluntary fault must always be imputed to the author. 168 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 three-fold, 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 169 defended the living property of a citizen, his slaves and cattle, from the stroke of 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 pursebearer immediately silenced their clamours by the legal tender of twenty-five pieces of copper, about the value of one shilling.170 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. The execution of the Alban dictator, who was dismembered by 168 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. 169 Noodt (Opp. tom. i. p. 137-172) has composed a separate treatise, ad Legem Aquiliam (Pandect. 1. ix. tit. ii.). 170 Aulus Gellius (Noct. Attic. xx. 1 [tom. ii. p. 284]) borrowed this story from the Commentaries of Q. Labeo on the xii tables. ments. Severity of eight horses, is represented by Livy as the first and the last instance Punish- of Roman cruelty in the punishment of the most atrocious crimes.171 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 decisive the Twelve proof of the national spirit, since they were framed by the Tables. wisest of the senate and accepted by the free voices of the people; yet these laws, like the statutes of Draco,172 are written in characters of blood. 173 They approve the inhuman and unequal principle of retaliation; and the forfeit of an eye for an eye, a tooth for a tooth, a limb for a limb, is rigorously exacted, unless the offender can redeem his pardon by a fine of three hundred pounds of copper. The decemvirs distributed with much liberality the slighter chastisements of flagellation and servitude; and nine crimes of a very different complexion are adjudged worthy of death. 1. Any act of treason against the state, or of correspondence with the public enemy. The mode of execution was painful and ignominious: the head of the degenerate Roman was shrouded in a veil, his hands were tied behind his back, and, after he had been scourged by the lictor, he was suspended in the midst of the forum on a cross, or inauspicious tree. 2. Nocturnal meetings in the city, whatever might be the pretence —of pleasure, or religion, or the public good. 3. The murder of a citizen; for which the common feelings of mankind demand the blood of the murderer. Poison is still more odious than the sword or dagger; and we are surprised to discover, in two flagitious events, how early such subtle wickedness had infected the simplicity of the republic and the chaste virtues of the Roman matrons.174 The parricide, who violated the duties of nature and gratitude, was cast into the river or the sea, enclosed in a sack; and a cock, a viper, a dog, and a monkey, were successively added as the most suitable companions. 175 Italy 171 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). 172 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. 173 The viith, de delictis, of the xii tables is delineated by Gravina (Opp. p. 292, 293, with a commentary, p. 214-230). Aulus Gellius (xx. 1) and the Collatio Legum Mosaicarum et Romanarum afford much original information. 174 Livy mentions two remarkable and flagitious æras, of 3000 persons accused, and of 190 noble matrons convicted, of the crime of poisoning (xl. 43, viii. 18). Mr. Hume discriminates the ages of private and public virtue (Essays, vol. i. p. 22, 23). I would rather say that such ebullitions of mischief (as in France in the year 1680) are accidents and prodigies which leave no marks on the manners of a nation. 175 The xii tables and Cicero (pro Roscio Amerino, c. 25, 26) are content with the sack; Seneca (Excerpt. Controvers. v. 4) adorns it with serpents; Juvenal pities the guiltless monkey (innoxia simia—Satir, xiii. 156). Adrian (apud Dositheum Magis |