CHA P. sanction to confidential testaments and codicils, XLIV. and gently unravelled the forms and restraints of the republican jurisprudence *. But as the new practice of trusts degenerated into some abuse, the trustee was enabled, by the Tribellian 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 +.

III. Or

ACTIONS.

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 errected a similar jurisprudence, the fair conclusion of universal reason and justice ‡.

1. The

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

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. p. 91-144), Justinian (1. ii. tit. x-xx v.), and Theophilus (p. 328-514.); and the immense detail occupies twelve books (xxviii-xxxix.) of the Pandects.

The Institutes of Caius (1. ii. tit. ix, x. p. 144-214.), of Justinian (1. iii. tit. xiv-xxx. 1. iv. tit. i-vi.), 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,

Promises

i. The goddess of faith (of human and social c HAP faith) was worshipped, not only in her temples, XLIV. 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 burthensome 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 citi zen 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 engageG 2

ments

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

CHA P. ments into the form of solemn stipulations. The XLIV. 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 *.

2. The obligations of the second class, as they Benefits. were contracted by the delivery of a thing, are marked by the civilians with the epithet of real t. A grateful return is due to the author of a benefit; and whoever is entrusted 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

The Jus Prætorium de Pactis et Transactionibus is a separate and satisfactory treatise of Gerard Noodt (Opp. 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.

The nice and various subjects 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 stu dent.

which he had been accommodated for the tempo- CHA P. rary supply of his wants; in the latter, it was XLIV. 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 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 expence, 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

CHAP. and instruments of husbandry, and to content XLIV. 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 improvements could be expected from a farmer, who, at each moment might be ejected by the sale of the estate *. Usury, the inveterate grievance of Interest of the city, had been discouraged by the twelve money. tabies, and abolished by the clamours of the people.

Hocan, 30

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 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 centesime usura at twelve, the unciaria at one per cent. is maintained by the best critics and civilians: Noodt (1. ii. c. 2. p. 207.), Gra vina (Opp. p. 205, &c. 210.), Heineccius (Antiquitat. ad Institut. 1. iii. tit. xv.), Montesquieu (Esprit. de Loix, 1. xxii. c. 22. tom. ii. p. 36. Defense de l'Esprit des Loix, tom. iii. Pa 478, &c.) and above all John Frederic Gronovius (de Pecunia Veteri, 1. iii. c. 13. p. 213-227. and his three Antexegeses, P. 455-655.) the founder, or at least the champion, of this probable opinion; which is however perplexed with some difficulties.

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