Ancient Law Chapter 9

ngagement 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 n

ourished 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 co

mes 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，

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