Whoever has glanced through the pages of any text-book on Mercantile Law will hardly deny that Contract is the handmaid if not actually the child of Trade. Merchants and bankers must have what soldiers and farmers seldom need, the means of making and enforcing various agreements with ease and certainty. Thus, turning to the special case before us, we should expect to find that when Rome was in her infancy and when her free inhabitants busied themselves chiefly with tillage and with petty warfare, their rules of sale, loan, suretyship, were few and clumsy. Villages do not contain lawyers, and even in tdwns hucksters do not employ them. Poverty of Contract was in fact a striking feature of the early Roman Law, and can be readily understood in the light of the rule just stated. The explanation given by Sir Henry Maine is doubtless true, but does not seem altogether adequate. He points out 1 that the Roman house- hold consisted of many families under the rule of a 1 Ancient Law, p. 312. B. E. 1 2 INTRODUCTION. paternal autocrat, so that few freemen had what we should call legal capacity, and consequently there arose few occasions for Contract. This may indeed account for the non-existence of Agency, but not for that of all other contractual forms. For if the households had been trading instead of farming corporations, they must necessarily have been more richly provided in this respect. The fact that their commerce was trivial, if it existed at all, alone accounts completely for the insignificance of Con- tract in their early Law. The origin of Contract as a feature of social life was therefore simultaneous with the birth of Trade and requires no further explanation. It is with the origin and history of its individual forms that the following pages have to deal. As Roman civilization progresses we find Commerce extending and Contract growing steadily to be more complex and more flexible. Before the end of the Roman Republic the rudimentary modes of agreement which sufficed for the requirements of a semi-barbarous people have been almost wholly transformed into the elaborate system f of Contract preserved for us in the fragments of the Antonine jurists. CHAPTER I. THE REGAL PERIOD: EARLY AGREEMENTS. At the most remote period concerning which statements of reasonable accuracy can be made, and which for convenience we may call the Regal Period, we can distinguish three ways of securing the fulfilment of a promise. The promise could be enforced either (1) by the person interested, or (2) by the gods, or (3) by the community. When however we speak of enforcement, we must not think of what is now called specific performance, a con- ception unknown to primitive Law. The only kind of enforcement then possible was to make punish- ment the alternative of performance. I. Self-help, the most obvious method of re- dress in a society just emerging from barbarism, was doubtless the most ancient protection to promises, since we find it to have been not only the mode by which the anger of the individual was expressed, but also one of the authorised means employed by the gods or the community to signify their displeasure. This rough form of justice fell within the domain of Law in the sense that the law allowed it, and even 1—2 4 THE REGAL PERIOD: EARLY AGREEMENTS. encouraged men to punish the delinquent, whenever religion or custom had been violated. But as people grew more civilized and the nation larger, self-help must have proved a difficult and therefore inade- quate remedy. Accordingly its scope was by degrees narrowed, and at last with the introduction of surer methods it became wholly obsolete. II. Religious Law, as administered by the priests, the representatives of the gods, was another powerful agency for the support of promises. A violation of Fides, the sacred bond formed between the parties to an agreement, was an act of impiety which laid a burden on the conscience of the delin- quent and may even have entailed religious disabili- ties. Fides was of the essence of every compact, but there were certain cases in which its violation was punished with exceptional severity. If an agreement had been solemnly made in the presence of the gods, its breach was punishable as an act of gross sacrilege. III. The third agency for the protection of promises was legal in our sense of the word. It consisted of penalties imposed upon bad faith by the laws of the nation, the rules of the gens, or the by-laws of the guild to which the delinquent belonged. What the sanction was in each case we are left to conjecture. It may have been public disgrace, or exclusion from the guild, or the paying of a fine. And as some promises might be strength- ened by an appeal to the gods, so might others by an invocation of the people as witnesses. Agreements then might be of three kinds corre- EARLY PACTA. 5 sponding to the three kinds of sanction. They might consist of (1) an entirely formless compact, (2) a solemn appeal to the gods, or (3) a solemn appeal to the people. I. A formless compact is called pactum in the language of the twelve Tables. It was merely a distinct understanding between parties who trusted to each other's word, and in the infancy of Law it must have been the kind of agreement most generally used in the ordinary business of life. Such agreements are doubtless the oldest of all, since it is almost impossible to conceive of a time when men did not barter acts and promises as freely as they bartered goods and without the accompani- ment of any ceremony. Compacts of this sort were protected by the universal respect for Fides, and their violation may perhaps have been visited with penalties by the guild or by the gens. But intensely religious as the early Romans were, there must have been cases in which conscience was too weak a barrier against fraud, and slight penalties were ineffectual. Fear of the gods had to be reinforced by the fear of man, and self-help was the remedy which naturally suggested itself. In the twelve Tables pactum appears in a negative shape, as a compact by performing which retaliation or a law-suit could be avoided 1 . If this compact was broken the offended party pursued his remedy. Similarly where a positive pactum was violated, the injured person must have had the option of chastising 1 Gell. zx. 1. 14. Auct. ad Her. n. 13. 20. 6 THE REGAL PERIOD: EARLY AGREEMENTS. the delinquent. His revenge might take the form of personal violence, seizure of the other's goods, or the retention of a pawn already in his possession. He could choose his own mode of punishment, but if his adversary proved too strong for him, he doubtless had to go unavenged ; whereas if the broken agree- ment belonged to either of the other classes, the injured party had the whole support of the priesthood or the community at his back, and thus was certain of obtaining satisfaction. It is therefore plain that though formless agreements contained the germ of Contract, they could not have produced a true law of Contract, because by their very nature they lacked binding force. Their sanction depended on the caprice of individuals, whereas the essence of Contract is that the breach of an agreement is punishable in a particular way. A further element was needed, and this was supplied by the invocation of higher powers. II. At what period the feshion was introduced of confirming promises by an appeal to the gods it would be idle to guess. Originally, it seems, the plain meaning of such appeals was alone con- sidered, and their form was of no importance. But under the influence of custom or of the priest- hood, they assumed by degrees a formal character, and it is thus that we find them in our earliest authorities. Since Religion and Law were both at first the monopoly of the priestly order, and since the religious forms of promise have their counterpart in the customs of Greece and other primitive peoples, PUBLIC AGREEMENTS. 7 whereas the secular forms are peculiarly Roman 1 , the religious forms are evidently the older, and formal contract has therefore had a religious origin. Fides being a divine thing, the most natural means of confirming a promise was to place it under divine protection. This could be accomplished in two ways, by iusiurandum or by sponsio, each of which was a solemn declaration placing the promise or agreement under the guardianship of the gods. Each of these forms has a curious history, and as they are the earliest specimens of true Contract, we may discuss them in the next chapter. III. Another method, and one peculiar to the Romans, which naturally suggested itself for the protection of agreements, was to perform the whole transaction in view of the people. Publicity ensured the fairness of the agreement, and placed its ex- istence beyond dispute. If the transaction was essentially a public matter, such as the official sale of public lands, or the giving out of public contracts, no formality seems ever to have been required, so that even a formless agreement was in that case binding. The same validity could be secured for private contracts by having them publicly witnessed, and the nexum was but one application of this principle. In testamentary Law it seems probable that the public will in comitiis calatis was also formless, whereas in private the testator could only give effect to his will by formally saying to his fellow-citizens " testimonium mihi perhibetote" Thus the two elements which turned a bare 1 See p. 22. 8 THE REGAL PERIOD: EARLY AGREEMENTS. \ agreement into a contract were religion and publicity. The naked agreements (pacta) need not concern us, since their validity as contracts never received complete recognition. But it will be the object of the following pages to show how agreements grew into contracts by being invested with a religious or public dignity, and to trace the subsequent process by which this outward clothing was slowly cast off. Formalism was the only means by which Contract could have risen to an established position, but when that position was folly attained we shall find Contract discarding forms and returning to the state of bare agreement from which it had sprung. CHAPTER II. CONTRACTS OF THE REGAL PERIOD. Art 1. Ivsivrandvm is derived by some from Iouisiurandum 1 , which merely indicates that Jupiter was the god by whom men generally swore. To make an oath was to call upon some god to witness the integrity of the swearer, and to punish him if he swerved from it. This appears from the wording of the oath in Livy 2 , where Scipio says: "Si sciensfalloy turn me, Iuppiter optime maxime, domum familiam remque rneam pessimo leto afficias" and from the oath upon the Iuppiter lapis given by Polybius and Paulus Diaconus, where a man throws down a flint and says : " Si sciens /alio, turn me Dispiter salua urbe arceque bonis eiiciat, uti ego hunc lapidem" A promise accompanied by an oath was simply a unilateral contract under religious sanction. And it would seem that the oath was in fact used for purposes of contract. Cicero remarks 8 that the oath was proved by the language of the XII Tables to have been in former times the most binding form of promise ; and since an oath was still morally binding 1 Cf. Apul. de deo Socr. 5. a xzii. 53. » Off. ni. 31. 111. 10 CONTRACTS OF THE REGAL PERIOD., in the time of Cicero, though it had then no legal force, the point of his remark must be that in earlier times the oath was legally binding also. From Dionysius we know that the altar of Hercules (called Ara Maxima) was a place at which solemn compacts (ovvdfjtcai) were often made 1 , while Plautus and Cicero inform us that such compacts were solemnized by grasping the altar and taking an oath 2 . It would seem probable that the gods were consulted by the taking of auspices before an oath was made. Cicero says that even in private affairs the ancients used to take no step without asking the advice of the gods 8 ; and we may safely conjecture that whenever a god was called upon to witness a solemn promise, he was first enquired of, so that he might have the option of refusing his assent by giving unfavourable auspices. The terms of the oath were known as concepta uerba, at least in the later Republic, and like the other forms of the period they were strictly construed 4 . Periuriv/m did not mean then, as now, false swearing. It meant the breach of an oath 5 , the commission of any act at variance with the uerha concepta 9 . There is some dispute as to what were the exact consequences of such a breach. Voigt 7 thinks that it merely entailed excommunication from religious rites, but Danz 8 is clearly right in maintaining that its consequences in early times were far more serious ; 1 Dion. i. 40. 2 Plaut. Rud. 5. 2. 49. Cio. Flacc. 36. 90. 8 Div. 1. 16. 28. 4 Seru. ad Aen. 12. 13. 6 i.e. 8ciem fallere, Plin. Paneg. 64. Seneca, Ben. in. 37. 4. 6 Off. in. 29. 108. 7 Ius Nat. in. 229. 8 Ram. RG. n. § 149. EFFECTS OF IVSIVRANDVM. 11 they amounted in fact to complete outlawry. Cicero says that the sacratae leges of the ancients confirmed the validity of oaths. Now a sacrata lex was one which declared the transgressor to be sacer (i.e. a victim devoted) to some particular god 1 , and sacer in the so-called laws of Seruius Tullius 2 and in the XII Tables 8 was the epithet of condem- nation applied to the undutiful child and the unrighteous patron. So likewise it seems highly probable that the breaker of an oath became sacer, and that his punishment, as Cicero hints 4 , was usually death. The formula of an oath given by Polybius 6 is more comprehensive than that given by Paulus Diaconus 8 , for in it the swearer prays that, if he should transgress, he may forfeit not onry the religious but also the civil rights of his countrymen. This shows that the oath-breaker was an utter outcast; in fact, as the gods could not always execute vengeance in person, what they did was to withdraw their protection from the offender and leave him tolhe punishment of his fellow-men 7 . The drawbacks to this method of contract were the same as those of the old English Law, which made hanging the penalty for a slight theft ; the penalty was likely to be out of all proportion to the injury inflicted by a breach of the promise. So awful indeed was it, that no promise of an ordinary kind could well be given in such a dangerous form, and consequently the oath was not available for the 1 Festus, p. 318, s.u. sacratae. 2 Fest. p. 230, s.u. plorare. 8 Seru. ad Aen. 6. 609. 4 Leg. n. 9. 22. B in. 25. 6 p. 114, s.u. lapidem. 7 Liu. v. 11. 16. 12 CONTRACTS OF THE REGAL PERIOD. common affairs of daily life. The use of the oath therefore disappeared with the rise of other forms of binding agreement, the severity of whose remedies was proportionate to the rights which had been violated; while at the same time the breaking of an oath came to be considered as a moral, instead of a legal, offence, and by the end of the Republic entailed nothing more serious than disgrace (dedecus). In one instance only did the legal force of the oath survive. As late as the days of Justinian^ the services due to patrons by their freedmen were still promised under oath 1 . But the penalty for the neglect of those services had changed with the development of the law. At and before the time of the XII Tables, the freedman who neglected his patron, like the patron who injured his freedman 2 , no doubt became sacer, and was an outlaw fleeing for his life, as we are told by Dionysius 3 . But in classical times the heavy religious penalty had disappeared, and the iurisiurandi obligatio was en- forced by a special praetorian action, the actio operarum*. By the time of Ulpian the effects of the iurata operarum promissio seem indeed to have been identical with those of the operarum stipu- latio*, though the forms of the two were still quite distinct. We may then summarise as follows our knowledge as to this primitive mode of contract : The form was a verbal declaration on the part of the promisor, couched in a solemn and carefully 1 38 Dig. 1. 7. a Sera, ad Aen. 6. 609. 8 n. 10. 4 38 Dig. 1. 2 and 7. 5 Cf. 38 Dig. 1. 10. 1 THE EARLY 8P0N8I0. 13 worded 1 formula (concepta tierba), wherein he called upon the gods {testari deos)*, to behold his good faith and to punish him for a breach of it. The sanction was the withdrawal of divine protection, so that the delinquent was exposed to death at the hand of any man who chose to slay him. The mode of release, if any, does not appear. In classical times it was the acceptilatio*, but this Was clearly anomalous and resulted from the similar juristic treatment of operae promissae and operae iuratae. Art. 2. Sponsio. Though the point is contested by high authority, yet it scarcely admits of a doubt that there existed from very early times another form, known as sponsio, by which agreements could be made under religious sanction. This method, as Danz has pointed out, was originally connected with the preceding one. It was derived from the stern and solemn compact made under an oath to the gods. But Danz goes too far when he identifies the two, and states that sponsio was but another name for the sworn promise 4 . The stages through which the sponsio seems to have passed tell a different story. The word is closely connected with airovSij, tnrivSeiv, and hence originally meant a pouring out of wine 8 , quite distinct from the con- vivial \ocfirf or libatio 6 , so that " libation " is not its proper equivalent. The other derivation given by 1 38 Dig. 1. 7, fr. 3. 2 Plant. Rud. 5. 2. 52. * 46 Dig. 4. 13. 4 Danz, Sacr. Schutz, p. 106. 8 Festus p. 329 s.u. spondere. 6 Leist, Greco-It. R. O. p. 464, note o. 14 CONTRACTS OF THE REGAL PERIOD. Varro 1 and Verrius 2 from sports, the will, whence according to Girtanner 8 sponsio must have meant a declaration of the will, savours somewhat too strongly of classical etymology. I. This pouring out of wine, as Leist 4 has shown, was in the Homeric age a constant accom- paniment to the conclusion of a sworn compact of alliance (optcia iriara) between friendly nations. The sacrificial wine seems originally to have added force to the oath by symbolising the blood which would be spilt if the gods were insulted by a breach of that oath. In this then its original form sponsio was nothing more than an accessory piece of cere- monial. II. The second stage was brought about by the omission of the oath and by the use of wine-pouring alone as the principal ceremony in making less important agreements of a private nature. In the Indian Sutras for instance a sacrifice of wine is customary at betrothals 5 , and comparison shows that the marriage ceremonies of the Romans, in connec- tion with which we find sponsio and sponsalia applied to the betrothal and sponsa to the bride 6 , were very like those of other Aryan communities 7 . We may therefore clearly infer that at Rome also there was a time when the pouring out of wine was a part of the marriage-contract; and thus our derivation of the word receives independent confirmation. III. In the third and last stage sponsio meant 1 L. L. vi. 7. 69. 2 Festus, «. u. spondere. 8 Stip. p. 84. 4 Greco-It. B. G. § 60. 8 Leist, AlUAr. I. Civ. p. 448. 8 Gell. iv. 4. Varro, L. L. vi. 7. 70. 7 Leist, loc. ciu PECULIAEITIES OF SPONSIO. 15 nothing more than a particular form of promise, and it is easy to see how this came about. At first the verbal promise took its name from the ceremony of wine-pouring which gave to it binding force ; but in course of time this ceremony was left out as taken for granted, and then the promise alone, provided words of style were correctly used, still retained its old uses and its old name. Sponsio from being a ceremonial act became a form of words. Such was the final stage of its development. The importance attached to the use of the words spondesne ?, spondeo in preference to all others 1 thus becomes clear. Spondesne ? spondeo originally meant " Do you promise by the sacrifice of wine V "I do so promise," just as we say, "I give you my oath," when we do not dream of actually taking one. Another peculiarity of sponsio, noticed though not explained by Gaius 2 , was the fact that it could be used in one exceptional case to make a binding agreement between Romans and aliens, namely, at the conclusion of a treaty. Gaius expresses surprise at this exception. But if, as above stated, a sacrifice of pure wine {airovhal a/cprjTot) was one of the early formalities of an international compact (op/cia mard), it was natural that the word spondeo should survive on such occasions, even after the oath and the wine- pouring had long since vanished. Sponsio being then a religious act and subse- quently a religious formula, its sanctity was doubtless protected by the pontiffs with suitable penalties. What these penalties were we cannot hope to know, 1 Gai. in. 93. 2 in. 94. 16 CONTRACTS OF THE REGAL PERIOD. though clearly they were the forerunners of the penal sponsio tertiae partis of the later procedure. Varro 1 informs us that, besides being used at be- trothals the sponsio was employed in money (pecu/nia) transactions. If pecunia includes more than money we may well suppose that cattle and other forms of property, which could be designated by number and not by weight, were capable of being promised in this manner. Indeed it is by no means unlikely 2 that nexum was at one time the proper form for a loan of money by weight, while sponsio was the proper form for a loan of coined money (pecunia nwmerata). The making of a sponsio for a sum of money was at all events the distinguishing feature of the afibio per sponsionem, and though we cannot now enter upon the disputed history of that action, its antiquity will hardly be denied. The account here given of the origin and early history of the sponsio is so different from the views taken by many excellent authorities that we must examine their theories in order to see why they appear untenable. One great class of commentators have held that the sponsio is not a primitive institu- tion, but was introduced at a date subsequent to the XII Tables. The adherents of this theory are afraid of admitting the existence, at so early a period, of a form of contract so convenient and flexible as the sponsio, and they also attach great weight to the fact that no mention of sponsio occurs in our fragments of the XII Tables. While it would doubtless be an anachronism to ascribe to the early 1 L. L. vi. 7. 70. a Karsten, Stip. p. 42. J THEORIES AS TO ORIGIN OF SPONSIO. 17 sponsio the actionability and breadth of scope which it had in later times, still it may very well have been sanctioned by religious law, in ways of which nothing can be known unless the pontifical Com- mentaries of Papirius 1 should some day be discovered. As to the silence of the XII Tables on this subject, we are told by Pomponius that they were intended to define and reform the law rather than to serve as a comprehensive code 2 . Therefore they may well have passed over a subject like sponsio which was already regulated by the priesthood. Or, if they did mention it, their provisions on the subject may have been lost, like the provisions as to iusiurandum, which' we know of only through a casual remark of Cicero's 8 . The early date here attributed to the sponsio cannot therefore be disproved by any such negative evidence. Let us see how the case stands with regard to the question of origin. (a) The theory best known in England, owing to its support by Sir H. Maine, is that sponsio was a simplified form of neocum, in which the ceremonial had fallen away and the nuncupatio had alone been left 4 . This explanation is now so utterly obsolete that it is not worth refuting, especially since Mr Hunter's exhaustive criticism 5 . One fact which in itself is utterly fatal to such a theory is that the nuncupatio was an assertion requiring no reply 6 , i Dion. in. 36. 2 1 Dig. 2. 2. 4. 8 Off. in. 31. 111. * Maine, Am. Law, p. 326. 5 Hunter, Roman Law, p. 385. 6 Gai. n. 24. B. E. 2 18 CONTRACTS OF THE REGAL PERIOD. whereas the essential thing about the sponsio was a question coupled with an answer. (6) Voigt follows Girtanner in maintaining that spondere signified originally " to declare one's will," and he vaguely ascribes the use of sponsiones in the making of agreements to an ancient custom existing at Borne as well as in Latium 1 . He agrees with the view here expressed that the sponsio was known prior to the XII Tables, but thinks that before the XII Tables it was neither a contract (which is strictly true if by contract we mean an agreement enforceable by action), nor an act in the law, and that its use as a contract began in the fourth century as a result of Latin influence 2 . In another place 8 he expresses the opinion that its introduction as a contract was due to legislation, and most probably to the Lex Silia. The objections to this view are (1) that the etymology is probably wrong, and (2) that the inference drawn as to the original meaning of spondere iuvolves us in serious difficulties. An expression of the will can be made by a formless declaration as well as by a formal one. And if a formless agreement be a sponsio, as it must be if sponsio means any declaration of the will, how are we to explain the formal importance attaching to the use of the particular words " spon- desne ? spondeo." (3) This view ignores the religious nature of the sponsio, which I have endeavoured to establish, and (4) it forgets that sponsio, being part of the marriage ceremonial, one of the first subjects 1 Rom. RG. i. p. 42. 2 16. p. 43. 8 Ius Nat. §§ 33-4. THEORIES AS TO ORIGIN OF SPONSIO* 19 to be regulated by the laws of Romulus 1 , is most probably one of the oldest Roman institutions. Again (5), as Esmarch has observed 2 , the legislative origin of the sponsio is a very rash hypothesis. We only know that the Lex Silia introduced an improved procedure for matters which were already actionable, and had a new formal contract been created by such a definite act we should almost certainly have been informed of this by the classical writers. (c) Danz also derives sponsio from sports, the will; but he takes spondere to mean sua sponte iurare, and thinks that the original sponsio was exactly the same as iusiurandum, i.e. nothing more than an oath of a particular kind 3 . . His chief argu- ment for this view is to be found in Paulus Diaconus, who gives consponsor = coniurator. But why need we suppose that Paulus meant more than to give a synonym ? in which case it by no means follows that spondere = iurare. For such a statement as that we have absolutely no authority. Moreover, as we saw above, iusiurandum was a one-sided declaration on the part of the promisor only. How then could the sponsio, consisting as it did of question and answer, have sprung from such a source ? especially since the iusiurandum, though no longer armed with a legal sanction, was still used as late as the days of Plautus alongside of the sponsio and in complete contrast to it ? (d) Girtanner, in his reply to the "Sacrale Schutz" of Danz 4 , maintains that sponsio had nothing 1 Dion. n. 25. 2 K. V. filr G. u. R. W. n. 516. 3 Sacr. Schutz, p. 149. 4 Ueber die Sponsio, p. 4 fif. 2—2 9 20 CONTRACTS OF THE REGAL PERIOD. to do with an oath, but was a simple declaration of the individual will, and that stipulatio had its origin in the respect paid to Fides. This view however is even less supported by evidence than that of Danz 1 . Arguing again from analogy Girtanner thinks that, as the Roman people regulated its affairs by expressing its will publicly in the Comitia, so we may conjecture that individuals could validly express their will in private affairs, in other words could make a binding sponsio. But this, as well as being a wrong analogy, is a misapprehension of a leading principle of early Law. For, as we have seen, no agreement resting simply upon the will of the parties (i.e. pactum) was valid without some outward stamp being affixed to it, in the shape of approval expressed by the gods or by the people. In the language of the more modern law, we may say that such approval, tacit or explicit, religious or secular, was the original causa ciuilis which dis- tinguished contractus from pactiones. Now a popular vote in the Comitia bore the stamp of public approval as plainly as did the nexum. But the sponsio, requiring no witnesses, was clearly not endorsed by the people ; therefore the endorsement which it needed in order to become a contractus iuris cvuilis must have been of a religious nature, and that such was the case appears plainly if we admit that sponsio originated in a religious cere- monial such as I have described. To recapitulate the view here given, we may conclude that sponsio was a primordial institution 1 See Windscheid, K. F. fiir G. «. R. W. i. 291. GROWTH OF SPONSIO. 21 of the Roman and Latin peoples, which grew into its later form through three stages, (a) It was originally a sacrifice of wine annexed to a solemn compact of alliance or of peace made under an oath to the gods. (b) Next it became a sacrifice used as an appeal to the gods in compacts not made under oath such as betrothals. Just as iusiurandum for many purposes was sufficient without the pouring out of wine, so for other purposes sponsio came to be sufficient without the oath, (c) Lastly it became a verbal formula, expressed in language implying the accompaniment of a wine-sacrifice, but at the making of which no sacrifice was ever actually performed. In this final stage, which continued as late as the days of Justi- nian, Its form was a question put by the promisee, and an answer given by the promisor, each using the verb spondere. " Filiam mihi spondesne ? " " Spondeo? " Centum dari spondes ? " " Spondeo? Throughout its history this was a form which Roman citizens alone could use, in which fact we clearly see religious exclusiveness and a further proof of religious origin. Why they used question and answer rather than plain statement is a minor point the origin of which no theory has yet accounted for. The most plausible conjecture seems to be that the recapitulation by the promisee was intended to secure the complete understanding by the promisor of the exact nature of his promise. Its sanction in the early period of which we are treating was doubtless* imposed by the priests, but owing to our almost complete ignorance of the 22 CONTRACTS OF THE REGAL PERIOD. pontifical law we cannot tell what that sanction was. Having now examined the ways in which an agreement could be made binding under religious sanction, let us see how binding agreements could be made with the approval of the community. There is reason to believe that this secular class of contracts is less ancient than the religious class, because nexum and mancipium were peculiar to the Romans, whereas traces of iusiurandum and sponsio are found, as Leist has shown, in other Aryan civilizations 1 . Art. 3. nexvm. There is no more disputed sub- ject in the whole history of Roman Law than the origin and development of this one contract. Yet the facts are simple, and though we cannot be sure that every detail is accurate, we have enough information to see clearly what the transaction was like as a whole. We know that it was a negotium per aes et libram, a weighing of raw copper or other commodity measured by weight in the presence of witnesses 2 ; that the commodity so weighed was a loan 8 ; and that default in the repayment of a loan thus made exposed the borrower to bondage 4 and savage punishment at the hands of the lender. We know also that it existed as a loan before the XII Tables, for it is mentioned in them as something quite different from mancipium 6 . To assert, as Bech- mann does, that since nexum included conveyance as 1 Alt Ar. I. Civ. I« e Abt. pp. 435-443. 2 Gai. in. 173. 3 Muciu* in Varro, L. L. 7. 105. 4 Varro, L. L. vi. 5. 5 Clark, E. R. L. § 22. THEORIES AS TO ORIGIN OF NEXVM. 23 well as loan " mancipiumque " must therefore be an interpolation into the text of the XII Tables 1 , is an arbitrary and unnecessary conjecture. The etymology of nexwm, and of mancipium shows that they were distinct conceptions. Mancipium implies the transfer of mami8, ownership ; nexum implies the making of a bond (cf. nectere, to bind), the precise equivalent of obligatio in the later law. It is true that both nexwm and mancipium required the use of copper and scales, to measure in one case the price, in the other the amount of the loan. But this coincidence by no means proves that the two transactions were identical. A modern deed is used both for leases and for conveyances of real property, yet that would be a strange argument to prove that a lease and a conveyance were originally the same thing. Here however we are met by a difficulty. If, as some hold 8 and as I have tried to prove, we must regard mancipium as an institution of prehistoric times distinct from the purely contractual nexwm, how are we to explain the fact that nexwm is used by Cicero 8 and by other classical writers 4 as equi- valent to mancipium, or as a general term signifying omne quod per aes et libram geritur, whether a loan, a will, or a conveyance ? Now first we must notice the fact that neamm had at any rate not always been synonymous with mancipium, for if it had been so, there could have been no doubt in the minds of 1 Kauf f p. 130. * Mommsen, Hist. 1. 11. p. 162 n. * ad Fam. 7. 30 ; de Or. 3. 40; Top. 5. 28; Parad. 5. 1. 35. ; pro Mwr. 2. 4 Boethius lib. 3 ad Top. 5. 28 ; Gallus Aelius in Festas, s.u. nexwm ; Manilim in Varro, L. L. 7. 105. 24 CONTRACTS OF THE REGAL PERIOD. Scaeuola and Varro that a res nexa was the same thing as a res mamipata. This Scaeuola and Varro both deny, and we must remember that Mucius Scaeuola was the Papinian of his day. Manilius 1 on the other hand, struck perhaps by the likeness in form of the obsolete nexum to other still existing negotia per aes et libram, seems to have made nexum into a generic term for this whole class of trans- actions. In this he was followed by Gallus Aelius 2 . The new and wider meaning, given by them to that which was a technical term at the period of the XII Tables, apparently became general in literature, partly for the very reason that nexum no longer had an actual existence, partly because need liberatio, the old release of nexum, had been adopted by custom as the proper form of release in matters which had nothing to do with the original nexum, namely in the release of judgment-debts and of legacies per damnationem*. One peculiarity men- tioned by Gaius in the release of such legacies seems altogether fatal to the theory that mandpium was but a species of the genus nexum. Gaius says that nexi liberatio could be used only for legacies of things measured by weight. Such things were the sole objects of the true nexum, whereas res maricipi included land and cattle. Therefore if mancipiwm were only a species of nexum we should certainly find nexi liberatio applying to legacies of res mancipi, but this, as Gaius shows, was not the case. The view that nexum was the parent gestum per 1 Varro, L. L. vu. 105. a Festus, p. 165, s. u. nexum. 3 Gai. iii. 173-5. NEXVM DISTINCT FROM MANCIPIVM. 25 aes et libram, and that mancipium was the name given later to one particular form of nexum, is worth examining at some length, because it is widely accepted 1 , and because it fundamentally affects our opinion concerning the early history of an important contract. Bechmarm 2 thinks it more reasonable to suppose that nexum narrowed from a general to a specific conception. But it is scarcely conceivable that nexum should have had the vague generic meaning of quodcumque per aes et libram geritur* when it was still a living mode of contract, and the technical meaning of obligatio per aes et libram when such a contractual form no longer existed. What seems far more likely is that nexum had a technical meaning until it ceased to be practised subsequently to the Lex Poetilia, and that its loose meaning was introduced in the later Bepublic, partly to denote the binding force of any contract 4 , partly as a convenient expression for any transaction per aes et libram\ Even in Cicero we find the word nexum used chiefly with a view to elegance of style 8 in places where mandpatio would have been a clumsy word and where 7 there could be no doubt as to the real meaning. But when Cicero is writing history, he uses nexum in its old technical sense and actually tells us that it had become obsolete 8 . 1 See Bechmann, Kauf, i. p. 130 ; Clark, E. R. L. § 22. 2 .16. p. 181. • Varro, I. c. — Festus, *. u. nexum. 4 Cf. "nexu uetu&ti " in Ulpian, 12 Dig. 6. 26. 7. 5 Cic. de Or. in. 40. 159. 6 Uar. Resp. vn. 14; ad Fam. vii. 30. 2; Top. 5. 28. 7 As in pro Mur. 2; Parad. v. 1. 35. 8 de Rep. 2. 34 and cf. Liu. mi. 28. 1. 26 CONTRACTS OF THE REGAL PERIOD. Rejecting then as untenable the notion that nexum denoted a variety of transactions, let us see how it originated. The most obvious way of lending corn or copper or any other ponderable commodity, was to weigh it out to the borrower, who would naturally at the same time specify by word of mouth the terms on which he accepted the loan. In order to make the transaction binding, an obvious precaution would be to call in witnesses, or if the transaction took place, as it most likely would, in the market-place, the mere publicity of the loan would be enough. Thus it was, we may believe, that a nexurn was originally made. It was a formless agreement necessarily accompanied by the act of weighing and made under public super- vision. It dealt only with commodities which could be measured with the scales and weights, and did not recognize the distinction between res mancipi and res nee mancipi, — a strong argument that nescum and mandpium were, as above said, totally distinct affairs. Its sanction lay in the acts of violence which the creditor might see fit to commit against the debtor, if payment was not performed according to the terms of his agreement. Personal violence was regulated by the XII Tables, in the rules of manus iniectio, but before that time it is safe to conjecture that any form of retaliation against the person or property of the debtor was freely allowed. The fixing of the number of witnesses at five 1 , which we find also in rnancipium, . is the only modification of nexum that we know of prior to 1 Gai. hi. 174. . FUNCTION OF NEXAL WITNESSES. 27 the XII Tables. Bekker 1 suggests that this change was one of the reforms of Seruius Tullius, and that the five witnesses, by representing the five classes of the Servian ceruma, personified the whole people. This is a mere conjecture, but a very plausible one. For we are told by Dionysius 8 that Seruius made fifty enactments on the subject of Contract and Crime, and in another passage of the same author 8 , we find an analogous case of a law which forbade the exposure of a child except with the approval of five witnesses. But here a question has been raised as to what the witnesses did. The correct answer, I believe, is that given by Bechmann 4 , who maintains that the witnesses approved the transaction as a whole, and vouched for its being properly and fairly performed. Huschke, on the other hand, claims that the function of the witnesses was to superintend the weighing of the copper, and that before the intro- duction of coined money some such public supervision was necessary in order to convert the raw copper into a lawful medium of exchange 5 . This view is part of Huschke's theory, that neacum had two marked peculiarities: (1) it was a legal act per- formed under public authority, and (2) it was the recognised mode of measuring out copper money by weight. The first part of Huschke's theory may be accepted without reserve, but the second part seems quite untenable. We have no evidence to show that nexum was confined to loans of money or of 1 Akt, i. 22 ff. a iv. 13. » ii. 15. 4 Kauf, i. p. 90. 8 Nexum, p. 16 ff. 28 CONTRACTS OF THE REGAL PERIOD. copper. Indeed we gather from a passage of Cicero that far, corn, may have been the earliest object of nexum 1 , while Gaius states that anything measurable by weight could be dealt with by neari solvtio*. No inference in favour of Huschke's theory can be drawn from the name negotium per cms et libram, for this phrase obviously dates from the more recent times when the ceremony had only a formal signifi- cance, and when the aes (ravduscvlum) was merely struck against the scales. If then we reject the second part of Huschke's theory, and admit, as we certainly should, that nexum could deal with any ponderable commodity, it is evident that his whole view as to the function of the witnesses must collapse also. The very notion of turning copper from merchandise into legal tender is far too subtle to have ever occurred to the minds of the early Romans. As Bechmann 8 rightly remarks, the original object of the State in making coin was not to create an authorised medium of exchange, but simply to warrant the weight and fineness of the medium most generally used. The view of Buschke seems therefore a complete anachronism. There is also another interpretation of neawm radically different from the one here advocated, and formerly given by some authorities 4 , but which has few if any supporters among modern jurists. This , view was founded upon a loosely expressed remark of Varro's in which nexus is defined as 1 Cic. de Leg. Agr. n. 30. 83. 2 in. 175. 8 Kauf, i. p. 87. 4 See Sell, Scbeurl, Niebuhr, Christiansen, Puchta, quoted in Danz, Rom. RG. n. 25. NEXVM A LOAN BY WEIGHT. 29 a freeman who gives himself into slavery for a debt which he owes 1 . The inference drawn from this remark was that the debtor's body, not the creditor's money, was the object of nexwm, and that a debtor who sold himself by mancipium as a pledge for the repayment of a loan was said to make a nexum' 2 . Such a theory does not however harmonize with the facts. The evidence is entirely opposed to it, for Varro's statement, as will be seen later on, admits of quite another meaning. Neither nexum nor man- cipium is ever found practised by a man upon his own person. Nor could nexum have applied to a debtors person, for the idea of treating a debtor like a res mancipi or like a thing quod pondere numero constat, is absurd. Again, if nexum = mancipium, the conveyance of the debtors body as a pledge must have taken effect as soon as the money was lent, therefore (1) by thus becoming nexus he must have been in mancipio long before a default could occur, which is too strange to be believed, and (2) being in mancipio he must have been capite deminutus*, which Quintilian expressly states that no nexal debtor ever was 4 . Clearly then mancipium was under no cir- cumstances a factor in nexum. Thus it would seem that the theory which regards nexum as a loan of raw copper or other goods measurable by weight, is the one beset with fewest difficulties. Such goods correspond pretty nearly to what in the later law were called res fungibiles. 1 Varro, L. L. vii. 105 and see page 52. 8 nexum inire, Liu. vn. 19. 6. 3 Paul. Diao. p. 70, *. u. deminutus. 4 Decl. 311. 30 CONTRACTS OF THE REGAL PERIOD. The borrower was not required to return the very same thing, but an equal quantity of the same kind of thing. And this explains why neanim, the first genuine contract of the Roman Law, should have received such ample protection. A tool or a beast of burden could be lent with but little risk, for either could be easily identified ; but the loan of corn or of metal would have been attended with very great risk, had not the law been careful to ensure the publicity of every such transaction. lusiurandum or sponsio might no doubt have been used for making loans, but they both lacked . the great advantage of accurate measurement, which neanim owed to its public character. It was the presence of witnesses which raised neanim from a formless loan into a contract of loan. This general sketch of the original neanim is all that can be given with certainty. The details of the picture cannot be filled in, unless we draw upon our imagination. We do not know what verbal agreement passed between the borrower and the lender, though it is fairly certain that payment of interest on the loan might be made a part of the contract. We cannot even be quite sure whether the scale-holder (libripens) was an official, as some have suggested, or a mere assistant 1 . Our description of the contract may then be briefly recapitulated as follows: The form consisted of the weighing out and delivery to the borrower of goods measurable by weight, in the presence of witnesses, (five in number, 1 See page 52. EARLY FORM OF NEXVM. 31 probably since the time of Seruius Tullius), whose attendance ensured the proper performance of the ceremony. The ownership of the particular goods passed to the borrower, who was merely bound to return an equal quantity of the same kind of goods, but the terms of each contract were approximately fixed by a verbal agreement uttered at the time. The sanction consisted of the violent measures which the creditor might choose to take against a defaulting debtor. Before the XII Tables there seems to have been no limit to the creditor's power of punishment. Any violence against the debtor was approved by custom and justified by the noto- riety of the transaction, so that self-help was more easily exercised and probably more severe in the case of nexum than in that of any other agreement. The release (nexi solutio) was a ceremony pre- cisely similar to that of the nexum itself, the amount of the loan being weighed and delivered to the lender, in presence of witnesses 1 . Art. 4. We have now examined three methods by which a binding promise could be made in the earliest period of the Roman Law. The next question which confronts us is whether there existed at that time any other method. The other forms of contract, besides those already described, which are found existing at the period of the XII Tables, were fiducia, lex mancipi, uadimonium, and dotis dictio. Did any of these have their origin before this time ? Fiducia is doubtful, and lex mancipi, as we shall see, owed its existence to an important provision 1 Gai. in. 174. \.t 32 CONTRACTS OF THE REGAL PERIOD. of that code. As to the origin of uadirnonium, we cannot be certain, but judging from a passage in Gellius 1 we are almost forced to the conclusion that uadimonium also was a creation of the XII Tables. Gellius speaks of •' uades et subuades et XX V asses et taliones...omnisque ilia XII Tabhlarum antiquitas." We know that twenty-five asses was the fine imposed by the XII Tables for cutting down another man's tree, therefore it would seem from the context that uades had also been introduced by that code. The point cannot be settled, but since the XII Tables were at any rate the first enactments on the subject of which anything is known, we may discuss uadimonium in treating of the next period. The only contract of which the remote antiquity is beyond dispute is the dotis dictio. Art. 5. DOTIS DICTIO. Dionysius 8 informs us that in the earliest times a dowry was given with daughters on their marriage, and that if the father could not afford this expense his clients were bound to contribute. Hence it is clear not only that dos existed from very early times, but that custom even in remote antiquity had fenced it about with strict rules. From Ulpian 8 we know that dos could be bestowed either by dotis dictio, dotis promissio, or dotis datio. The promissio was a promise by stipu- lation, and the datio was the transfer by mancipation or tradition of the property constituting the dowry ; so that these two are easy to understand. But dotis dictio is an obscure subject. It is difficult to know whence it acquired its binding force as a contract, 1 xvi. 10. 8. 2 ii. 10. 8 Reg. vi. 1. THEORIES A8 TO D0TI8 DICTIO. 33 since in form it was unlike all other contracts with which we are acquainted. Its antiquity is evidenced not only by this peculiarity of form, but 9,lso by a passage in the Theodosian Code which speaks of dotis dictio as conforming with the ancient law 1 . An illustration occurs in Terence 2 , where the father says, "Dos, Pamphile, est decern talenta" and Pamphilus, the future son-in-law, replies, "Accipio"; but we need not conclude that the transaction was always formal, for the above Code 8 , in permitting the use of any form, seems rather to be restating the old law than making a new enactment. A further peculiarity, stated by Ulpian 4 and by Gaius 5 , was that dotis dictio could be validly used only by the bride, by her father or cognates on the fathers side, or by a debtor of the bride acting with her authority. Dictio is a significant word, for Ulpian 6 distinguishes between dictum and promis- sum, the former, he says, being a mere statement, the latter a binding promise. This distinction should doubtless be applied in the present case, since dotis dictio and dotis promissio were clearly different. The following theories seem to be erroneous : (a) Von Meykow 7 holds that dictio was adopted as a form of promise instead of sponsio for this family affair of dos, in order not to hurt the feelings of the bride and of her kinsmen by appearing to question their bona fides. That theory would be a plausible explanation, if dictio could ever have meant a 1 C. Th. 3. 12. 3. 2 And. 5. 4. 48. 3 3. 13. 4. 4 Reg. vi. 2. 5 Epit. n. 9. 3. 6 21 Dig. 1. 19. 7 Diet. d. Rfim. Brautg. p. 5 ff. B. E. 3 34 CONTRACTS OF THE REGAL PERIOD. promise, but from what Ulpian says, this can hardly be admitted. (6) Bechmann 1 , again, connects dotis dictio with the ceremony of sponsio at the betrothal of a daughter. The dos, he thinks, was promised by a sponsio made at the betrothal, so that the peculiar form known as dotis dictio was originally nothing more than the specification of a dowry already promised. The dotis dictio would therefore have been at first a mere pactum adiectum, which was made actionable in later times, while still preserving its ancient form. The objection to this theory is tKat it lacks evidence : indeed the only passage (that of Terence) in which dotis dictio is presented to us with a context goes to show that this contract was in no way connected with the act of betrothal. (c) Another explanation is given by Czylharz 2 , ie. that dotis dictio was a formal contract. His view is based on the scholia attached to the passage of Terence, which say of the bridegroom's answer: "Mle nisi dixisset ' accipio' dos non esset." Czylharz therefore looks upon the contract as an inverted stipulation. The offer of a promise was made by the promisor, and when accepted by the promisee became a contract. Though such a process is quite in harmony with modern notions of Contract, it would have been a complete anomaly at Rome. And we cannot believe that, if acceptance by the promisee had been a necessary part of the dotis dictio, we should not have been so informed by Gaius, when he has been so careful to impress 1 Rom. Dotalrecht. 2 Abt. p. 103. a Z.f. R. G. vn. 243. THEORY OF DANZ. 35 upon us that the dotis dictio could be made nulla interrogatione praecedente. Thus the view of Czylharz besides being in itself improbable is almost entirely unsupported by evidence. Even the scholiast on Terence need not necessarily mean that " accipio " was an indispensable part of the trans- action. He may merely have meant that the bride- groom at this juncture could decline the proffered dos if he chose, and this interpretation is borne out by Iulianus 1 and Marcellus 8 , who give formulae of dotis dictio without any words of acceptance. A satisfactory solution of the problem seems to have been found by Danz 8 . He looks upon dos as having been due from the father or male ascendants of the bride as an officium pietatis 4 , and quotes passages from the classical writers in which they speak of refusing to dower a sister or a daughter as a most shameful thing 5 . The source of the obligation lay in this relationship to the bride, not in any binding effect of the dotis dictio itself. But in order that the obligation might be actionable its amount had to be fixed, and this was just what the dictio accomplished. It was an acknowledgment of the debt which custom had decreed that the bride's family must pay to the bridegroom. In this respect the dos was precisely analogous to the debt of service which a freedman owed as an offidum to his patron, and which he acknowledged by the iurata operarumpromissio. The dos and the operae were both officio, pietatis, but 1 23 Dig. 3. 44. 2 23 Dig. 3. 59. 3 Rom. RO. I. 163. 4 See 23 Dig. 3. 2. 5 Plaut. Trin. 3. 2. 63 ; Oic. Quint. 31. 98. 3—2 36 CONTRACTS OF THE REGAL PERIOD. it became customary to specify their nature and their quantity. In the one case this was done by an oath, in the other by a simple declaration, and in both cases the law gave an action to protect these anomalous forms of agreement. What kind of action could be brought on a dotis dictio is not known. Voigt 1 states it to have been an actio dictae dotis, for which he even gives the formula, but formula and action are alike purely conjectural. We can only infer that the dotis dictio was action- able since it constituted a valid contract. How or when this came to pass we cannot tell. A further advantage of Danz' theory, and one not mentioned by him, is that it explains the capacity of the three classes of persons by whom alone dotis dictio could be performed. (1) The father and male ascendants of the bride were bound to provide a dos under penalty of ignominia 2 ; (2) the bride, if sui iuris, was bound to contribute to the support of her husband's household for exactly the same reason 3 ; and (3) a debtor of the bride was bound to carry out her orders with respect to her assets in his posses- sion, and supposing her whole fortune to have con- sisted of a debt due to her, it is evident that a dotis dictio by the debtor was the only way in which this fortune could be settled as a dos at all. Thus the hypothesis that the dos was a debt morally due from the father of the bride, or from the bride herself, whenever a marriage took place, completely explains the curious limitation with 1 XII Taf. ii. § 123. 2 24 Dig. 3. 1. 8 Cic. Top. 4. 23. FORM OF D0TI8 DICTIO. 37 regard to the parties who could perform dotis dictio. The nature of the transaction may then be summarized as follows : Its form was an oral declaration on the part of (1) the bride's father or male cognates, (2) of the bride herself, or (3) of a debtor of the bride, setting forth the nature and amount of the property which he or she meant to bestow as dowry, and spoken in the presence of the bridegroom. Land as well as moveables could be settled in this manner 1 . No particular formula was necessary. The bridegroom might, if he liked, express himself satisfied with the dos so specified ; but his acceptance does not seem to have been an essential feature of the proceeding. Most probably he did not have to speak at all. Its sanction does not appear, though we may be sure that there was some action to compel perform- ance of the promise. This action, whatever it may have been, could of course be brought by the bride's husband against the maker of the dotis dictio. Perhaps in the earliest times the sanction was a purely religious one. Art. 6. Now that we have seen the various ways in which a binding contract could be made in the earliest period of Roman history, we may con- sider briefly the general characteristics of that primi- tive contractual system. The first striking point is that all the contracts hitherto mentioned are unilateral: the promisor alone was bound, and he was not entitled, in virtue of the contract, to any counterperformance on the part of the promisee. 1 Gai. Ep. 3. 9. 38 CONTRACTS OF THE REGAL PERIOD. The second point is that the consent of the parties was not sufficient to bind them. Over and above that consent the agreement between them was required to bear the stamp of popular or divine approval. Even in dotis dictio, as we have just seen, a simple declaration uttered by the promisor was invested with the force of a contract merely because the substance of that declaration was a transfer of property approved and required by public opinion. Thirdly we notice that the intention of the con- tracting parties was verbally expressed, but that the language employed was not originally of any impor- tance (except in the one case of sponsio), provided the intention was clearly conveyed. We must therefore modify the statement so commonly made that the earliest known contracts were couched in a particular form of words. For how did each of these particular forms originate and acquire the shape in which we afterwards find it ? By having long been used to express agreements which were binding though their language was informal, and by having thus gradually obtained a technical significance. Conse- quently the formal stage was not the earliest stage of Contract. The most primitive contract of all was not an agreement clothed with a form, but an agree- ment clothed with the approval of Church or State.
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