Ancient Law Chapter 9

ected 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 C

ontract 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 fo

r 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 s

hows 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 c

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