法律辅导：AncientLawChapter9

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　　Chapter 9. The Early History of Contract
　　There are few general propositions concerning the age to which we belong which seem at first sight likely to be received with readier concurrence than the assertion that the society of our day is mainly distinguished from that of preceding generations by the largeness of the sphere which is occupied in it by Contract. Some of the phenomena on which this proposition rests are among those most frequently singled out for notice， for comment， and for eulogy. Not many of us are so unobservant as not to perceive that in innumerable cases where old law fixed a man's social position irreversibly at his birth， modern law allows him to create it for himself by convention； and indeed several of the few exceptions which remain to this rule are constantly denounced with passionate indignation. The point， for instance， which is really debated in the vigorous controversy still carried on upon the subject of negro servitude， is whether the status of the slave does not belong to bygone institutions， and whether the only relation between employer and labourer which commends itself to modern morality be not a relation determined exclusively by contract.
　　The recognition of this difference between past ages and the present enters into the very essence of the most famous contemporary speculations. It is certain that the science of Political Economy， the only department of moral inquiry which has made any considerable progress in our day， would fail to correspond with the facts of life if it were not true that Imperative Law had abandoned the largest part of the field which it once occupied， and had left men to settle rules of conduct for themselves with a liberty never allowed to them till recently. The bias indeed of most persons trained in political economy is to consider the general truth on which their science reposes as entitled to become universal， and， when they apply it as an art， their efforts are ordinarily directed to enlarging the province of Contract and to curtailing that of Imperative Law， except so far as law is necessary to enforce the performance of Contracts. The impulse given by thinkers who are under the influence of these ideas is beginning to be very strongly felt in the Western world. Legislation has nearly confessed its inability to keep pace with the activity of man in discovery， in invention， and in the manipulation of accumulated wealth； and the law even of the least advanced communities tends more and more to become a mere surface-stratum having under it an everchanging assemblage of contractual rules with which it rarely interferes except to compel compliance with a few fundamental principles or unless it be called in to punish the violation of good faith.
  R- }' n0 H2 k- i7 {2 l( g　　Social inquiries， so far as they depend on the consideration of legal phenomena， are in so backward a condition that we need not be surprised at not finding these truth recognised in the commonplaces which pass current concerning the progress of society. These commonplaces answer much more to our prejudices than to our convictions. The strong disinclination of most men to regard morality as advancing seems to be especially powerful when the virtues on which Contract depends are in question， and many of us have almost instinctive reluctance to admitting that good faith and trust in our fellows are more widely diffused than of old， or that there is anything in contemporary manners which parallels the Loyalty of the antique world. From time to time， these prepossessions are greatly strengthened by the spectacle of frauds， unheard of before the period at which they were observed， and astonishing from their complication as well as shocking from criminality.
　　But the very character of these frauds shows clearly that， before they became possible， the moral obligations of which they are the breach must have been more than proportionately developed. It is the confidence reposed and deserved by the many which affords facilities for the bad faith of the few， so that， if colossal examples of dishonesty occur， there is no surer inclusion than that scrupulous honesty is displayed in the average of the transactions which， in the particular case， have supplied the delinquent with his opportunity. If we insist on reading the history of morality as reflected in jurisprudence， by turning our eyes not on the law of Contract but on the law of Crime， we must be careful that we read it aright. The only form of dishonesty treated of in the most ancient Roman law is Theft. At the moment at which I write， the newest chapter in the English criminal law is one which attempts to prescribe punishment for the frauds of Trustees. The proper inference from this contrast is not that the primitive Romans practised a higher morality than ourselves. We should rather say that， in the interval between their days and ours， morality has advanced from a very rude to a highly refined conception from viewing the rights of property as exclusively sacred， to looking upon the rights growing out of the mere unilateral reposal of confidence as entitled to the protection of the penal law.

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　　The definite theories of jurists are scarcely nearer the truth in this point than the opinions of the multitude. To begin with the views of the Roman lawyers， we find them inconsistent with the true history of moral and legal progress. One class of contracts， in which the plighted faith of the contracting parties was the only material ingredient， they specifically denominated Contracts juris gentium， and though these contracts were undoubtedly the latest born into the Roman system， the expression employed implies， if a definite meaning be extracted from it， that they were more ancient than certain other forms of engagement treated of in Roman law， in which the neglect of a mere technical formality was as fatal to the obligation as misunderstanding or deceit. But then the antiquity to which they were referred was vague， shadowy， and only capable of being understood through the Present； nor was it until the language of the Roman lawyers became the language of an age which had lost the key to their mode of thought that a "Contract of the Law of Nations" came to be distinctly looked upon as a Contract known to man in a State of Nature. Rousseau adopted both the juridical and the popular error. In the Dissertation on the effects of Art and Science upon Morals， the first of his works which attracted attention and the one in which he states most unreservedly the opinions which made him the founder of a sect， the veracity and good faith attributed to the ancient Persians are repeatedly pointed out as traits of primitive innocence which have been gradually obliterated by civilisation； and at a later period he found a basis for all his speculations in the doctrine of an original Social Contract. The Social Contract or Compact is the most systematic form which has ever been assumed by the error we are discussing. It is a theory which， though nursed into importance by political passions， derived all its sap from the speculations of lawyers. True it certainly is that the famous Englishmen， for whom it had first had attraction， valued it chiefly for its political serviceableness， but， as I shall presently attempt to explain， they would never have arrived at it， if politicians had not long conducted their controversies in legal phraseology.
+ e5 \% l# ?" N* o" O　　Nor were the English authors of the theory blind to that speculative amplitude which recommended it so strongly to the Frenchmen who inherited it from them. Their writings show they perceived that it could be made to account for all social， quite as well as for all political phenomena. They had observed the fact， already striking in their day， that of the positive rules obeyed by men， the greater part were created by Contract， the lesser by Imperative Law. But they were ignorant or careless of the historical relation of these two constituents of jurisprudence. It was for the purpose， therefore， of gratifying their speculative tastes by attributing all jurisprudence to a uniform source， as much as with the view of eluding the doctrines which claimed a divine parentage for Imperative Law that they devised the theory that all Law had its origin in Contract. In another stage of thought， they would have been satisfied to leave their theory in the condition of an ingenious hypothesis or a convenient verbal formula. But that age was under the dominion of legal superstitions. The State of Nature had been talked about till it had ceased to be regarded as paradoxical， and hence it seemed easy to give a fallacious reality and definiteness to the contractual origin of Law by insisting on the Social Compact as a historical fact.</p>
　　Our own generation has got rid of these erroneous juridical theories， partly by outgrowing the intellectual state to which they belong， and partly by almost ceasing to theorise on such subjects altogether. The favourite occupation of active minds at the present moment， and the one which answers to the speculations of our forefathers on the origin of the social state， is the analysis of society as it exists and moves before our eyes； but， through omitting to call in the assistance of history， this analysis too often degenerates into an idle exercise of curiosity， and is especially apt to incapacitate the inquirer for comprehending states of society which differ considerably from that to which he is accustomed. The mistake of judging the men of other periods by the morality of our own day has its parallel in the mistake of supposing that every wheel and bolt in the modern social machine had its counterpart in more rudimentary societies. Such impressions ramify very widely， and masque themselves very subtly， in historical works written in the modern fashion； but I find the trace of their presence in the domain of jurisprudence in the praise which is frequently bestowed on the little apologue of Montesquieu concerning the Troglodytes， inserted in the Lettres Persanes.

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　　The Troglodytes were a people who systematically violated their Contracts， and so perished utterly. If the story bears the moral which its author intended， and is employed to expose an anti-social heresy by which this century and the last have been threatened， it is most unexceptionable； but if the inference be obtained from it that society could not possibly hold together without attaching a sacredness to promises and agreements which should be on something like a par with the respect that is paid to them by a mature civilisation， it involves an error so grave as to be fatal to all sound understanding of legal history. The fact is that the Troglodytes have flourished and founded powerful states with very small attention to the obligations of Contract. The point which before all others has to be apprehended in the constitution of primitive societies is that the individual creates for himself few or no rights， and few or no duties. The rules which he obeys are derived first from the station into which he is born， and next from the imperative commands addressed to him by the chief of the household of which he forms part. Such a system leaves the very smallest room for Contract. The member of the same family （for so we may interpret the evidence） are wholly incapable of contracting with each other， and the family is entitled to disregard the engagements by which any one of its subordinate member has attempted to bind it. Family， it is true， may contract with family， chieftain with chieftain， but the transaction is one of the same nature， and encumbered by as many formalities， as the alienation of property， and the disregard of one iota of the performance is fatal to the obligation. The positive duty resulting from one man's reliance on the word of another is among the slowest conquests of advancing civilisation.
$ Y1 v/ v  r2 J. e6 j, E　　Neither Ancient Law nor any other source of evidence discloses to us society entirely destitute of the conception of Contract. But the conception， when it first shows itself， is obviously rudimentary. No trustworthy primitive record can be read without perceiving that the habit of mind which induces us to make good a promise is as yet imperfectly developed， and that acts of flagrant perfidy are often mentioned without blame and sometimes described with approbation. In the Homeric literature， for instance， the deceitful cunning of Ulysses appears as a virtue of the same rank with the prudence of Nestor， the constancy of Hector， and the gallantry of Achilles. Ancient law is still more suggestive of the distance which separates the crude form of Contract from its maturity. At first， nothing is seen like the interposition of law to compel the performance of a promise. That which the law arms with its sanctions is not a promise， but a promise accompanied with a solemn ceremonial. Not only are formalities of equal importance with the promise itself， but they are， if anything， of greater importance； for that delicate analysis which mature jurisprudence applies to the conditions of mind under which a particular verbal assent is given appears， in ancient law， to be transferred to the words and gestures of the accompanying performance.
- z( y1 g) n( s' r/ c, ~4 l2 F, z　　No pledge is enforced if a single form be omitted or misplaced， but， on the other hand， if the forms can be shown to have been accurately proceeded with， it is of no avail to plead that the promise was made under duress or deception. The transmutation of this ancient view into the familiar notion of a Contract is plainly seen in the history of jurisprudence. First one or two steps in the ceremonial are dispensed with； then the others are simplified or permitted to be neglected on certain conditions； lastly， a few specific contracts are separated from the rest and allowed to be entered into without form， the selected contracts being those on which the activity and energy of social intercourse depends. Slowly， but most distinctly， the mental engagement isolates itself amid the technicalities， and gradually becomes the sole ingredient on which the interest of the jurisconsult is concentrated. Such a mental engagement， signified through external acts， the Romans called a Pact or Convention； and when the Convention has once been conceived as the nucleus of a Contract， it soon becomes the tendency of advancing jurisprudence to break away the external shell of form and ceremony. Forms are thenceforward only retained so far as they are guarantees of authenticity， and securities for caution and deliberation. The idea of a Contract is fully developed， or， to employ the Roman phrase， Contracts are absorbed in Pacts.

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　　The history of this course of change in Roman law is exceedingly instructive. At the earliest dawn of the jurisprudence， the term in use for a Contract was one which is very familiar to the students of historical Latinity. It was nexum， and the parties to the contract were said to be nexi， expressions which must be carefully attended to on account of the singular durableness of the metaphor on which they are founded. The notion that persons under a contractual engagement are connected together by a strong bond or chain， continued till the last to influence the Roman jurisprudence of Contract； and flowing thence it has mixed itself with modern ideas. What then was involved in this nexum or bond？ A definition which has descended to us from one of the Latin antiquarians describes nexum as omne quod geritur per aes et libram， "every transaction with the copper and the balance，" and these words have occasioned a good deal of perplexity. The copper and the balance are the well-known accompaniments of the Mancipation， the ancient solemnity described in a former chapter， by which the right of ownership in the highest form of Roman Property was transferred from one person to another. Mancipation was a conveyance， and hence has arisen the difficulty， for the definition thus cited appears to confound Contracts and Conveyances， which in the philosophy of jurisprudence are not simply kept apart， but are actually opposed to each other. The jus in re， right in rem， right "availing against all the world，" or Proprietary Right， is sharply distinguished by the analyst of mature jurisprudence from the jus ad rem， right in personam， right "availing a single individual or group，" or obligation. Now Conveyances transfer Proprietary Rights， Contracts create Obligations —— how then can the two be included under the same name or same general conception？ This， like many similar embarrassments， has been occasioned by the error of ascribing to the mental condition of an unformed society a faculty which pre-eminently belongs to an advanced stage of intellectual development， the faculty of distinguishing in speculation ideas which are blended in practice. We have indications not to be mistaken of a state of social affairs in which Conveyances and Contracts were practically confounded； nor did the discrepance of the conceptions become perceptible till men had begun to adopt a distinct practice in contracting and conveying.
　　It may here be observed that we know enough of ancient Roman law to give some idea of the mode of transformation followed by legal conceptions and by legal phraseology in the infancy of Jurisprudence. The change which they undergo appear to be a change from general to special； or， as we might otherwise express it， the ancient conceptions and the ancient terms are subjected to a process of gradual specialisation. An ancient legal conception corresponds not to one but to several modern conceptions. An ancient technical expression serves to indicate a variety of things which in modern law have separate names allotted to them. If however we take up the history of Jurisprudence at the next stage， we find that the subordinate conceptions have gradually disengaged themselves and that the old general names are giving way to special appellations. The old general conception is not obliterated， but it has ceased to cover more than one or a few of the notions which it first included. So too the old technical name remains， but it discharges only one of the functions which it once performed. We may exemplify this phenomenon in various ways.
& t4 l, ^* V! A) o; ~# w　　Patriarchal Power of all sorts appears， for instance， to have been once conceived as identical in character， and it was doubtless distinguished by one name. The Power exercised by the ancestor was the same whether it was exercised over the family or the material property —— over flocks， herds， slaves， children， or wife. We cannot be absolutely certain of its old Roman name， but there is very strong reason for believing， from the number of expressions indicating shades of the notion of power into which the word manus enter， that the ancient general term was manus. But， when Roman law has advanced a little， both the name and the idea have become specialised. Power is discriminated， both in word and in conception， according to the object over which it is exerted. Exercised over material commodities or slaves， it has become dominium —— over children， it is Potestas —— over free persons whose services have been made away to another by their own ancestor， it is mancipium —— over a wife， it is still manus.

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　　The old word， it will be perceived， has not altogether fallen into desuetude， but is confined to one very special exercise of the authority it had formerly denoted. This example will enable us to comprehend the nature of the historical alliance between Contracts and Conveyances. There seems to have been one solemn ceremonial at first for all solemn transactions， and its name at Rome appears to have been nexum. Precisely the same forms which were in use when a conveyance of property was effected 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 Contract 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.</p>