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 civil ians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice.*

1. 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.† 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. Whatever might be the etymology of the Latin word, it conveyed 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 laboured 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 tit. 10-25), and Theophilus (p. 328-514); and the immense detail occupies twelve books (28-39) of the Pandects.

* The Institutes of Caius (1. 2, tit. 9, 10, p. 144-214), of Justinian (1. 3, tit. 14-30; 1. 4, tit. 1-6), and of Theophilus (p. 616-837), distinguish four sorts of obligations-aut re, aut verbis, aut literis, aut consensu; but I confess myself partial to my own division.

How much is the cool, rational evidence of Polybius (1. 6, p. 693; 1. 31, p. 1459, 1460) superior to vague, indiscriminate applauseomnium maxime et præcipue fidem coluit. (A. Gellius, 20. 1.)

deliberate act, which in their tribunal produced an equitable obligation, and for which they gave an action and a remedy.*

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. 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 appellation of a loan. In the former, the borrower was obliged to restore the same individual thing with which he had been accommodated for the temporary supply of his wants; in the latter, it was destined for his use and consumption, 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, labour 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

* The Jus Prætorium de Pactis et Transactionibus is a separate and satisfactory treatise of Gerard Noodt. (Op. tom. i, p. 483-564.) And I will here observe that the universities of Holland and Brandenburgh, in the beginning of the present century, appear to have studied the civil law on the most just and liberal principles. [Simple agreements (pacta) were as binding as solemn contracts. But every compact did not give an equal right to an action or direct judicial proceeding. It was the duty of the judge, in all other respects, to maintain the validity of a pactum. Every form of agreement ought to contain a stipulation, from which the right of action proceeded.-WARNKÖNIG.]

The nice and various subject of contracts by consent is spread over four books (17-20) of the Pandects, and is one of the parts best deserving of the attention of an English student.

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 terrant 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 improvements ould be expected from a farmer, who, at each moment, might be ejected by the sale of the estate. Usury,† the inveterate grievance of the city, had been discouraged by the Twelve Tables, and

* The covenants of rent are defined in the Pandects (1. 19) and the Code (1. 4, tit. 65). 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 Methodique, tom. i, de la Jurisprudence, p. 668, 669), and I am sorry to observe that it yet prevails in the beauteous and happy country where I am permitted to reside.

+ I might implicitly acquiesce in the sense and learning of the three books of G. Noodt, de fœnore et usuris (Opp. tom. i, p. 175—268). The interpretation of the asses or centesimæ usuræ at twelve, the unciariæ at one per cent. is maintained by the best critics and civilians; Noodt (1. 2, c. 2, p. 207), Gravina (Opp. p. 205, &c. 210), Heineccius (Antiquitat. ad Institut. 1. 3, tit. 15), Montesquieu (Esprit des Loix, ì. 22, c. 22, tom. ii, p. 36. Défense de l'Esprit des Loix, tom. ii, D. 478, &c.), and above all, John Frederic Gronovius (De Pecunia Veteri, 1. 3, c. 13, p. 213-227), and his three Antexegeses (p. 455655), the founder, or at least the champion, of this probable opinion; which is, however, perplexed with some difficulties.

Primo duodecim tabulis sancitum est ne quis unciario fenore amplius exerceret. (Tacit. Annal. 6. 16.) Pour peu (says Montes quieu, Esprit des Loix, 1. 22, c. 22), qu'on soit versé dans l'Histoire

abolished by the clamours 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 de Rome, on verra qu'une pareille loi ne devoit pas être l'ouvrage des decemvirs. 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. [It is now well ascertained that the "foenus unciarium' " amounted to an annual rate of ten per cent. In M. Hugo's Magazine of Civil Law (vol. v, p. 180), there is an article in which M. Schrader carries on the conjectures of Niebuhr, Hist. Rom. ii, p. 431.-WARNKÖNIG.] [Niebuhr's latest views of this, as well as other subjects, are to be found in his Lectures. After referring (vol. i, p. 337) to this rate of interest, and his opinion as confirmed by his pupil, M. Schrader, he corrects a former mistake by admitting that the "foenus unciarium was introduced, as stated by Tacitus, in the Twelve Tables;" but that the law against usury was re-enacted forty years after the taking or Rome by the Gauls. Then, treating of the period immediately antecedent to the Tarentine war A.U.C. 470, he says (p. 541): "To take interest was at that time forbidden, and money-lenders were obliged to use foreigners as screens. When negotiating a loan, on which interest was to be paid, the parties went to Præneste and Tibur. Some Tiburtine ostensibly furnished the money, and if any litigation arose out of the transaction, it was decided in his forum. Thus the prohibition of usury may be reconciled with the fact that it was nevertheless practised." After the close of the long contest with Carthage a hundred years later, he says again (ii, 192): “The monied interest became of great importance. The acquisition of Sicily opened a wide field for the employment of capital, and the enterprizing went into the provinces to make fortunes. In Rome, all interest was illegal; yet the prohibition to take it was evaded and unavailing. As in the middle ages such business was done through Jews, so in Rome it was carried on by foreigners and freedmen; while in the provinces it had no check whatever. The property (publicanum) of the Roman State had grown so vast, that it was leased out in lots, such as the mines of Spain, the tithes of Sicily or Illyricum, or the tunny-fisheries on the Sardinian coast. The farmers of these made immense profits, and became suddenly rich, as others do now by stock-jobbing. If a warcontribution was levied on any State, some publicanus was always ready to advance the money at twelve per cent., which was the very lowest rate, but often as high as twenty-four and even thirty-six per cent. Then the governors of the provinces took care that the lenders were repaid. A reckless circulation of money thus began.”—ED.]

had not attempted to define; but except in this perilous adventure, the practice of exorbitant usury was severely restrained.* The most simple interest was condemned by the clergy of the East and West:† but the sense of mutual benefit, which had triumphed over the laws of the republic, has resisted with equal firmness the decrees of the church, and even the prejudices of mankind.‡

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 intrusted 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 consequences of a voluntary fault must always be imputed. to the author.§ A Roman pursued and recovered his stolen goods by a civil action of theft; they might pass through a succession of pure and innocent hands, but nothing less than a prescription of thirty years could extinguish his original claim. They were restored by the sentence of the prætor, and the injury was compensated by double, or threefold, or even quadruple damages, as the deed had been perpetrated by secret fraud or open rapine, as the robber had been surprised in the fact, or detected by a subsequent research. The Aquilian law¶ defended the living property of a citizen, his slaves and cattle, from the stroke of malice or negligence: the highest price was allowed that could be

* Justinian has not condescended to give usury a place in his Institutes; but the necessary rules and restrictions are inserted in the Pandects (1. 22, tit. 1, 2) and the Code (1. 4, tit. 32, 33).

The fathers are unanimous (Barbeyrac, Morale des Pères, p. 144, &c.), Cyprian, Lactantius, Basil, Chrysostom (see his frivolous argu ments in Noodt, 1. 1, c. 7, p. 188), Gregory of Nyssa, Ambrose, Jerome, Augustin, and a host of councils and casuists.

Cato, Seneca, Plutarch, have loudly condemned the practice or abuse of usury. According to the etymology of foenus and Toxos, 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.

§ Sir William Jones has given an ingenious and rational Essay on the Law of Bailment (London, 1781, p. 127, in 8vo.). He is, perhaps, the only lawyer equally conversant with the year-books of Westminster, the Commentaries of Ulpian, the Attic pleadings of Isæus, and the sentences of Arabian and Persian cadhis.

Noodt (Opp. tom. i, p. 137-172) has composed a separate treatise, ad Legem Aquiliani. (Pandect. 1. 9, tit. 2.)