154

persons whom he named might die before him, or reject the inheritance, or be exposed to some legal disqualification. In the contemplation of these events, he was permitted to substitute second and third heirs, to replace each other according to the order of the testament; and the incapacity of a madman or an infant to bequeath his property might be supplied by a similar substitution." But the power of the testator expired with the acceptance of the testament; each Roman of mature age and discretion acquired the ab solute dominion of his inheritance, and the simplicity of the civil law was never clouded by the long and intricate entails which confine the happiness and freedom of unborn generations.

Conquest and the formalities of law established the use of codicils. If a Roman was surprised by death in a remote province of the empire, he addressed a short epistle to his legitimate or testamentary heir; who fulfilled with honor, or neglected with impunity, this last request, which the judges before the age of Augustus were not authorized to enforce. A codicil might be expressed in any mode, or in any language; but the subscription of five witnesses must declare that it was the genuine composition of the author. His intention, however laudable, was sometimes illegal; and the invention of fidei-commissa, or trusts, arose from the struggle between natural justice and positive jurisprudence. A stranger of Greece or Africa might be the friend or benefactor of a childless Roman, but none, except a fellow-citizen, could act as his heir. The Voconian law, which abolished female succession, restrained the legacy or inheritance of a woman to the sum of one hundred thousand sesterces, 155 and an only daughter was condemned almost as an alien in her father's house. The zeal of friendship, and parental affection, suggested a liberal artifice: a qualified citizen was named in the testament, with a prayer or injunction that he would restore the inheritance to the person for whom it was truly intended. Various was the conduct of the trustees in this painful situation; they had sworn to observe the laws of their country, but honor

154 The substitutions fidei-commissaires of the modern civil law is a feudal idea grafted on the Roman jurisprudence, and bears scarcely any resemblance to the ancient fidei-commissa (Institutions du Droit François, tom. i. pp. 347-383. Denissart, Décisions de Jurisprudence, tom. iv. pp. 577-604). They were stretched to the fourth degree by an abuse of the clixth Novel; a partial, perplexed, declamatory law.

155 Dion Cassius (tom. ii. 1. lvi. p. 814, with Reimar's Notes) specifies in Greek noney the sum of 25,000 drachms.

prompted them to violate their oath; and if they preferred their interest under the mask of patriotism, they forfeited the esteem of every virtuous mind. The declaration of Augustus relieved their doubts, gave a legal sanction to confidential testaments and codicils, and gently unravelled the forms and restraints of the republican jurisprudence.156 But as the new practice of trusts degenerated into some abuse, the trustee was enabled, by the Trebellian and Pegasian decrees, to reserve one-fourth of the estate, or to transfer on the head of the real heir all the debts and actions of the succession. The interpretation of testaments was strict and literal; but the language of trusts and codicils was delivered from the minute and technical accuracy of the civilians.157

III. The general duties of mankind are imposed by their public and private relations: but their specific obligations to each other can only be the effect of, 1. a promise, 2. a benefit, or 3. 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.158

I. The goddess of faith (of human and social faith) was 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 burdensome engagements." 159 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. What ever might be the etymology of the Latin word, it conveyed

156 The revolutions of the Roman laws of inheritance are finely, though sometimes fancifully, deduced by Montesquieu (Esprit des Loix, 1. xxvii.).

157 Of the civil jurisprudence of successions, testaments, codicils, legacies, and trusts, the principles are ascertained in the Institutes of Caius (1. ii. tit. ii.ix. pp. 91-144), Justinian (1. ii. tit. x.-xxv.), and Theophilus (pp. 328-514); and the immense detail occupies twelve books (xxviii.-xxxix.) of the Pandects.

15 The Institutes of Caius (1. ii. tit. ix. x. pp. 144-214), of Justinian (1. iii. tit. xiv.-xxx. 1. iv. tit. i.-vi.), and of Theophilus (pp. 616-837), distinguish four sorts of obligations-aut re, aut verbis, aut literis, aut consensu: but I confess myself partial to my own division.*

15% How much is the cool, rational evidence of Polybius (1. vi. p. 693, 1. xxxi. pp. 1459, 1460) superior to vague, indiscriminate applause-omnium maxime et præcipue fidem coluit (A. Gellius, xx. 1).

It is not at all applicable to the Roman system of contracts, even if it were allowed to be good.-M.

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 labored 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

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 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

160 The Jus Prætorium de Pactis et Transactionibus is a separate and satisfactory treatise of Gerard Noodt (Opp. tom. i. pp. 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.†

* Simple agreements (pacta) formed as valid an obligation as a solemn contract. Only an action, or the right to a direct judicial prosecution, was not permitted in every case of compact. In all other respects, the judge was bound to maintain an agreement made by pactum. The stipulation was a form common to every kind of agreement, by which the right of action was given to this.-W. This is erroneously called "benefits." Gibbon enumerates various kinds of contracts, of which some alone are properly called benefits.-W.

appellation of a loan. In the former, the borrower was obliged to restore the same individual thing with which he bad been accommodated for the temporary supply of his wants; in the latter, it was destined for his use and cousumption, 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, labor 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 improve ments could be expected from a farmer, who, at each moment, might be ejected by the sale of the estate.162 Usury,168 the

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, pp. 668, (69); 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. Noodt, de fœnore et usuris (Opp. tom. i. pp. 175-268). The interpretation of the asses or centesima usura at twelve, the unciarice at one per cent., is main

VOL. III.-45

inveterate grievance of the city, had been discouraged by the Twelve Tables, 14 and abolished by the clamors 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 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, had resisted with equal firmness the decrees of the church, and even the prejudices of mankind.16

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

tained by the best critics and civilians: Noodt (1. ii. c. 2, p. 207), Gravina (Opp. pp. 205, &c., 210), Heineccius (Antiquitat. ad lnstitut. 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, pp. 213-227, and his three Antexegeses, pp. 455-655), the founder, or at least the champion, of this probable opinion, which is, however, perplexed with some difficulties.

16 Primo xii. Tabulis sancitum est ne quis unciario fœnore amplius exerceret (Tacit. Annal. vi. 16). Pour peu (says Montesquieu, Esprit des Loix, 1. xxii. 22) qu'on soit versé dans l'histoire de Rome, on verra qu'une pareille loi ne devoit pas etre 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.*

16 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. xxxiij.)

106 The Fathers are unanimous (Barbevrac, Morale des Pères, p. 144, &c.): Cyp rian. 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.

10 Cato, Seneca, Plutarch, have loudly condemned the practice or abuse of usury. According to the etymology of fonus and Tokos, 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. pp. 180, 184, an article of M. Schrader, following up the conjectures of Niebuhr, Hist. Rom. tom. ii. p. 431.-W.

Compare a very clear account of this question in the appendix to Mr. Trav ers Twiss's Epitome of Niebuhir, vol. ii. p. 257.-M.