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History of the Decline and Fall of the Roman Empir

Was the solemn interrogation of Seius


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

[Footnote 157: Of the civil jurisprudence of successions, testaments, codicils, legacies, and trusts, the principles are ascertained in the Institutes of Caius, (l. ii. tit. ii.--ix. p. 91--144,) Justinian, (l. ii. tit. x.--xxv.,) and Theophilus, (p. 328--514;) and the immense detail occupies twelve books (xxviii.--xxxix.) of the Pandects.] III. The general duties of mankind are imposed by their public and private relations: but their specific obligations to each other can only be the effect of, 1. a promise, 2. a benefit, or 3. an injury: and when these obligations are ratified by law, the interested party may compel the performance by a judicial action. On this principle, the civilians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice. [158]

[Footnote 158: The Institutes of Caius, (l. ii. tit. ix. x. p. 144--214,) of Justinian, (l. iii. tit. xiv.--xxx. l. 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. Note: It is not at all applicable to the Roman system of contracts, even if I were allowed to be good.--M.]

Chapter XLIV: Idea Of The Roman Jurisprudence.--Part VII.

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. [159] Yet among the same people, according to the rigid maxims of the patricians and decemvirs, a naked pact, a promise, or even an oath, did not create any civil obligation, unless it was confirmed by the legal form of a stipulation. 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 labored to convert simple engagements into the form of solemn stipulations. The praetors, as the guardians of social faith, admitted every rational evidence of a voluntary and deliberate act, which in their tribunal produced an equitable obligation, and for which they gave an action and a remedy. [160]

[Footnote 159: How much is the cool, rational evidence of Polybius (l. vi. p. 693, l. xxxi. p. 1459, 1460) superior to vague, indiscriminate applause--omnium maxime et praecipue fidem coluit, (A. Gellius, xx. l.)]


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