The extreme importance of this history of Contract， as a safeguard against almost innumerable delusions， must be my justification for discussing it at so considerable a length. It gives a complete account of the march of ideas from one great landmark of jurisprudence to another. We begin with Nexum， in which a Contract and a Conveyance are blended， and in which the formalities which accompany the agreement are even more important than the agreement itself. from the Nexum we pass to the Stipulation， which is a simplified form of the older ceremonial. The Literal Contract comes next， and here all formalities are waived， if proof of the agreement can be supplied from the rigid observances of a Roman household. In the Real Contract a moral duty is for the first time recognised， and persons who have joined or acquiesced in the partial performance of an engagement are forbidden to repudiate it on account of defects in form. Lastly， the Consensual Contracts emerge， in which the mental attitude of the contractors is solely regarded， and external circumstances have no title to notice except as evidence of the inward undertaking. It is of course uncertain how far this progress of Roman ideas from a gross to a refined conception exemplifies the necessary progress of human thought on the subject of Contract. The Contract-law of all other ancient societies but the Roman is either too scanty to furnish information， or else is entirely lost； and modern jurisprudence is so thoroughly leavened with the Roman notions that it furnishes us with no contrasts or parallels from which instruction can be gleaned. from the absence， however，。 the of everything violent， marvellous， or unintelligible in changes I have described， it may be reasonably believed that the history of ancient Roman Contracts is， up to a certain point， typical of the history of this class of legal conceptions in other ancient societies. But it is only up to a certain point that the progress of Roman law can be taken to represent the progress of other systems of jurisprudence. The theory of Natural law is exclusively Roman. The notion of the vinculum juris， so far as my knowledge extends， is exclusively Roman. The many peculiarities of the mature Roman law of Contract and Delict which are traceable to these two ideas， whether singly or in combination， are therefore among the exclusive products of one particular society. These later legal conceptions are important， not because they typify the necessary results of advancing thought under all conditions， but because they have exercised perfectly enormous influence on the intellectual diathesis of the modern world.

　　I know nothing more wonderful than the variety of sciences to which Roman law， Roman Contract-law more particularly， has contributed modes of thought， courses of reasoning， and a technical language. Of the subjects which have whetted the intellectual appetite of the moderns， there is scarcely one， except Physic， which has not been Altered through Roman jurisprudence. The science of pure Metaphysics had， indeed， rather a Greek than a Roman parentage， but Politics， Moral Philosophy， and even Theology found in Roman law not only a vehicle of expression， but a nidus in which some of their profoundest inquiries were nourished into maturity. For the purpose of accounting for this phenomenon， it is not absolutely necessary to discuss the mysterious relation between words and ideas， or to explain how it is that the human mind has never grappled with any subject of thought， unless it has been provided beforehand with a proper store of language and with an apparatus of appropriate logical methods. It is enough to remark， that， when the philosophical interests of the Eastern and Western worlds were separated， the founders of Western thought belonged to a society which spoke Latin and reflected in Latin. But in the Western provinces the only language which retained sufficient precision for philosophical purposes was the language of Roman law， which by a singular fortune had preserved nearly all the purity of the Augustan age， while vernacular Latin was degenerating into a dialect of portentous barbarism. And if Roman jurisprudence supplied the only means of exactness in speech， still more emphatically did it furnish the only means of exactness， subtlety， or depth in thought. For at least three centuries， philosophy and science were without a home in the West； and though metaphysic and metaphysical theology were engrossing the mental energies of multitudes of Roman subjects， the phraseology employed in these ardent inquiries was exclusively Greek， and their theatre was the Eastern half of the Empire. Sometimes， indeed， the conclusions of the Eastern disputants became so important that every man''s assent to them， or dissent from them， had to be recorded， and then the West was introduced to the results of Eastern controversy， which it generally acquiesced in without interest and without resistance. Meanwhile， one department of inquiry， difficult enough for the most laborious， deep enough for the most subtle， delicate enough for the most refined， had never lost its attractions for the educated classes of the Western provinces. To the cultivated citizen of Africa， of Spain， of Gaul and of Northern Italy it was jurisprudence， and jurisprudence only， which stood in the place of poetry and history， of philosophy and science. So far then from there being anything mysterious in the palpably legal complexion of the earliest efforts of Western thought it would rather be astonishing if it had assumed any other hue. I can only express my surprise at the scantiness of the attention which has been given to the difference between Western ideas and Eastern， between Western theology and Eastern， caused by the presence of a new ingredient. It is precisely because the influence of jurisprudence begins to be powerful that the foundation of Constantinople and the subsequent separation of the Western Empire from the Eastern， are epochs in philosophical history. But continental thinkers are doubtless less capable of appreciating the importance of this crisis by the very intimacy with which notions derived from Roman Law are mingled up with every day ideas. Englishmen， on the other hand， are blind to it through the monstrous ignorance to which they condemn themselves of the most plentiful source of the stream of modern knowledge， of the one intellectual result of the Roman civilisation. At the same time， an Englishman， who will be at the pains to familiarise himself with the classical Roman law is perhaps， from the very slightness of the interest which his countrymen have hitherto taken in the subject， a better judge than a Frenchman or a German of the value of the assertions I have ventured to make. Anybody who knows what Roman jurisprudence is， as actually practised by the Romans， and who will observe in what characteristic the earliest Western theology and philosophy differ from the phases of thought which preceded them， may be safely left to pronounce what was the new element which had begun to pervade and govern speculation.

　　The part of Roman law which has had most extensive influence on foreign subjects of inquiry has been the law of Obligation， or what comes nearly to the same thing， of Contract and Delict. The Romans themselves were not unaware of the offices which the copious and malleable terminology belonging to this part of their system might be made to discharge， and this is proved by their employment of the peculiar adjunct quasi in such expressions as Quasi-Contract and Quasi-Delict. “Quasi，” so used， is exclusively a term of classification. It has been usual with English critics to identify the Quasi-contracts with implied contracts， but this is an error， for implied contracts are true contracts， which quasi-contracts are not. In implied contracts， acts and circumstances are the symbols of the same ingredients which are symbolised， in express contracts， by words； and whether a man employs one set of symbols or the other must be a matter of indifference so far as concerns the theory of agreement. But a Quasi-Contract is not a contract at all. The commonest sample of the class is the relation subsisting between two persons one of whom has paid money to the other through mistake. The law， consulting the interests of morality， imposes an obligation on the receiver to refund， but the very nature of the transaction indicates that it is not a contract， inasmuch as the Convention， the most essential ingredient of Contract， is wanting. This word “quasi，” prefixed to a term of Roman law， implies that the conception to which it serves as an index is connected with the conception with which the comparison is instituted by a strong superficial analogy or resemblance. It does not denote that the two conceptions are the same or that they belong to the same genus. On the contrary， it negatives the notion of an identity between them； but it points out that they are sufficiently similar for one to be classed as the sequel to the other， and that the phraseology taken from one department of law may be transferred to the other and employed without violent straining in the statement of rules which would otherwise be imperfectly expressed.

　　It has been shrewdly remarked， that the confusion between Implied Contracts， which are true contracts， and Quasi Contracts， which are not contracts at all， has much in common with the famous error which attributed political rights and duties to an Original Compact between the governed and the governor. Long before this theory had clothed itself in definite shape， the phraseology of Roman contract-law had been largely drawn upon to describe that reciprocity of rights and duties which men had always conceived as existing between sovereigns and subjects. While the world was full of maxims setting forth with the utmost positiveness the claims of kings to implicit obedience —— maxims which pretended to have had their origin in the New Testament， but which were really derived from indelible recollections of the Cesarian despotism —— the consciousness of correlative rights possessed by the governed would have been entirely without the means of expression if the Roman law of Obligation had not supplied a language capable of shadowing forth an idea which was as yet imperfectly developed. The antagonism between the privileges of kings and their duties to their subjects was never， I believe， lost sight of since Western history began， but it had interest for few except speculative writers so long as feudalism continued in vigour， for feudalism effectually controlled by express customs the exorbitant theoretical pretensions of most European sovereigns. It is notorious， however， that as soon as the decay of the Feudal System had thrown the medieval constitutions out of working order， and when the Reformation had discredited the authority of the Pope， the doctrine of the divine right of Kings rose immediately into an importance which had never before attended it. The vogue which it obtained entailed still more constant resort to the phraseology of Roman law， and a controversy which had originally worn a theological aspect assumed more and more the air of a legal disputation. A phenomenon then appeared which has repeatedly shown itself in the history of opinion. Just when the argument for monarchical authority rounded itself into the definite doctrine of Filmer， the phraseology， borrowed from the Law of Contract， which had been used in defence of the rights of subjects， crystallised into the theory of an actual original compact between king and people， a theory which， first in English and afterwards， and more particularly， in French hands， expanded into a comprehensive explanation of all the phenomena of society and law. But the only real connection between political and legal science had consisted in the last giving to the first the benefit of its peculiarly plastic terminology. The Roman jurisprudence of Contract had performed for the relation of sovereign and subject precisely the same service which， in a humbler sphere， it rendered to the relation of person bound together by an obligation of “quasi-contract.” It had furnished a body of words and phrases which approximated with sufficient accuracy to the ideas which then were from time to time forming on the subject of political obligation. The doctrine of an Original Compact can never be put higher than it is placed by Dr. Whewell， when he suggests that， though unsound， “it may be a convenient form for the expression of moral truths.”

　　The extensive employment of legal language on political subjects previously to the invention of the Original Compact， and the powerful influence which that assumption has exercised subsequently， amply account for the plentifulness in political science of words and conceptions， which were the exclusive creation of Roman jurisprudence. Of their plentifulness in Moral Philosophy a rather different explanation must be given， inasmuch as ethical writings have laid Roman law under contribution much more directly than political speculations， and their authors have been much more conscious of the extent of their obligation. In speaking of moral philosophy as extraordinarily indebted to Roman jurisprudence， I must be understood to intend moral philosophy as understood previously to the break in its history effected by Kant， that is， as the science of the rules governing human conduct， of their proper interpretation and of the limitations to which they are subject. Since the rise of the Critical Philosophy， moral science has almost wholly lost its older meaning， and， except where it is preserved under a debased form in the casuistry still cultivated by Roman Catholic theologians， it seems to be regarded nearly universally as a branch of ontological inquiry. I do not know that there is a single contemporary English writer， with the exception of Dr. Whewell， who understands moral philosophy as it was understood before it was absorbed by metaphysics and before the groundwork of its rules came to be a more important consideration than the rules themselves. So long， however， as ethical science had to do with the practical regimen of conduct， it was more or less saturated with Roman law. Like all the great subjects of modern thought， it was originally incorporated with theology. The science of Moral Theology， as it was at first called， and as it is still designated by the Roman Catholic divines， was undoubtedly constructed， to the full knowledge of its authors， by takin principles of conduct from the system of the Church， and by using the language and methods of jurisprudence for their expression and expansion. While this process went on， it was inevitable that jurisprudence， though merely intended to be the vehicle of thought， should communicate its colour to the thought itself. The tinge received through contact with legal conceptions is perfectly perceptible in the earliest ethical literature of the modern world， and it is evident， I think， that the Law of Contract， based as it is on the complete reciprocity and indissoluble connection of rights and duties， has acted as a wholesome corrective to the predispositions of writers who， if left to themselves， might have exclusively viewed a moral obligation as the public duty of a citizen in the Civitas Dei. But the amount of Roman Law in moral theology becomes sensibly smaller at the time of its cultivation by the great Spanish moralists. Moral theology， developed by the juridical method of doctor commenting on doctor， provided itself with a phraseology of its own， and Aristotelian peculiarities of reasoning and expression， imbibed doubtless in great part from the Disputations on Morals in the academical schools， take the place of that special turn of thought and speech which can never be mistaken by any person conversant with the Roman law. If the credit of the Spanish school of moral theologians had continued， the juridical ingredient in ethical science would have been insignificant， but the use made of their conclusions by the next generation of Roman Catholic writers on these subjects almost entirely destroyed their influence. Moral Theology， degraded into Casuistry， lost all interest for the leaders of European speculation； and the new science of Moral Philosophy， which was entirely in the hands of the Protestants， swerved greatly aside from the path which the moral theologians had followed. The effect was vastly to increase the influence of Roman law on ethical inquiry.

　　“Shortly（1*） after the Reformation， we find two great schools of thought dividing this class of subjects between them. The most influential of the two was at first the sect of school known to us as the Casuists， all of them in spiritual communion with the Roman Catholic Church， and nearly all of them affiliated to one or other of her religious orders. On the other side were a body of writer connected with each other by a common intellectual descent from the great author of the treatise De Jure Belli et Pacis， Hugo Grotius. Almost all of the latter were adherents of the Reformation， and though it cannot be said that they were formally and avowedly at conflict with the Casuists， the origin and object of their system were nevertheless essentially different from those of Casuistry. It is necessary to call attention to this difference， because it involves the question of the influence of Roman law on that department of thought with which both systems are concerned. The book of Grotius， though it touches questions of pure Ethics in every page， and though it is the parent immediate or remote of innumerable volumes of formal morality， is not， as is well known， a professed treatise on Moral Philosophy； it is an attempt to determine the Law of Nature， or Natural Law. Now， without entering upon the question， whether the conception of a Law Natural be not exclusively a creation of the Roman jurisconsults， we may lay down that， even on the admission of Grotius himself， the dicta of the Roman jurisprudence as to what parts of known positive law must be taken to be parts of the Law of Nature， are， if not infallible， to be received at all events with the profoundest respect. Hence the system of Grotius is implicated with Roman law at its very foundation， and this connection rendered inevitable —— what the legal training of the writer would perhaps have entailed without it —— the free employment in every paragraph of technical phraseology， and of modes of reasoning， defining， and illustrating， which must sometimes conceal the sense， and almost always the force and cogency， of the argument from the reader who is unfamiliar with the sources whence they have been derived. On the other hand， Casuistry borrows little from Roman law， and the views of morality contended for have nothing whatever in common with the undertaking of Grotius. All that philosophy of right and wrong which has become famous， or infamous， under the name of Casuistry， had its origin in the distinction between Mortal and Venial Sin. A natural anxiety to escape the awful consequences of determining a particular act to be mortally sinful， and a desire， equally intelligible， to assist the Roman Catholic Church in its conflict with Protestantism by disburthening it of an inconvenient theory， were the motives which impelled the authors of the Casuistical philosophy to the invention of an elaborate system of criteria， intended to remove immoral actions， in as many cases as possible， out of the category of mortal offences， and to stamp them as venial sins. The fate of this experiment is matter of ordinary history. We know that the distinctions of Casuistry， by enabling the priesthood to adjust spiritual control to all the varieties of human character， did really confer on it an influence with princes， statesmen， and generals， unheard of in the ages before the Reformation， and did really contribute largely to that great reaction which checked and narrowed the first successes of Protestantism. But beginning in the attempt， not to establish， but to evade —— not to discover a principle， but to escape a postulate —— not to settle the nature of right and wrong， but to determine what was not wrong of a particular nature， —— Casuistry went on with its dexterous refinements till it ended in so attenuating the moral features of actions， and so belying the moral instincts of Our being， that at length the conscience of mankind rose suddenly in revolt against it， and consigned to one common ruin the system and its doctors. The blow， long pending， was finally struck in the Provincial Letters of Pascal， and since the appearance of those memorable Papers， no moralist of the smallest influence or credit has ever avowedly conducted his speculations in the footsteps of the Casuists. The whole field of ethical science was thus left at the exclusive command of the writers who followed Grotius； and it still exhibits in an extraordinary degree the traces of that entanglement with Roman law which is sometimes imputed as a fault， and sometimes the highest of its recommendations， to the Grotian theory Many inquirers since Grotius''s day have modified his principles， and many， of course， since the rise of the Critical Philosophy， have quite deserted them； but even those who have departed most widely from his fundamental assumptions have inherited much of his method of statement， of his train of thought， and of his mode of illustration； and these have little meaning and no point to the person ignorant of Roman jurisprudence.”

　　I have already said that， with the exception of the physical sciences， there is no walk of knowledge which has been so slightly affected by Roman law as Metaphysics. The reason is that discussion on metaphysical subjects has always been conducted in Greek， first in pure Greek， and afterwards in a dialect of Latin expressly constructed to give expression to Greek conceptions. The modern languages have only been fitted to metaphysical inquiries by adopting this Latin dialect， or by imitating the process which was originally followed in its formation. The source of the phraseology which has been always employed for metaphysical discussion in modern times was the Latin translations of Aristotle， in which， whether derived or not from Arabic versions， the plan of the translator was not to seek for analogous expressions in any part of Latin literature， but to construct anew from Latin roots a set of phrases equal to the expression of Greek philosophical ideas. Over such a process the terminology of Roman law can have exercised little influence； at most， a few Latin law terms in a transmuted shape have made their way into metaphysical language. At the same time it is worthy of remark that whenever the problems of metaphysics are those which have been most strongly agitated in Western Europe， the thought， if not the language， betrays a legal parentage. Few things in the history of speculation are more impressive than the fact that no Greek-speaking people has ever felt itself seriously perplexed by the great question of Free-will and Necessity： I do not pretend to offer any summary explanation of this， but it does not seem an irrelevant suggestion that neither the Greeks， nor any society speaking and thinking in their language， ever showed the smallest capacity for producing a philosophy of law. Legal science is a Roman creation， and the problem of Free-will arises when we contemplate a metaphysical conception under a legal aspect. How came it to be a question whether invariable sequence was identical with necessary connection？ I can only say that the tendency of Roman law， which became stronger as it advanced， was to look upon legal consequences as united to legal causes by an inexorable necessity， a tendency most markedly exemplified in the definition of Obligation which I have repeatedly cited， “Juris vinculum quo necessitate adstringimur alicujus solvendae rei.”

　　But the problem of Free-will was theological before it became philosophical， and， if its terms have been affected by jurisprudence， it will be because Jurisprudence had made itself felt in Theology. The great point of inquiry which is here suggested has never been satisfactorily elucidated. What has to be determined， is whether jurisprudence has ever served as the medium through which theological principles have been viewed； whether， by supplying a peculiar language， a peculiar mode of reasoning， and a peculiar solution of many of the problems of life， it has ever opened new channels in which theological speculation could flow out and expand itself. For the purpose of giving an answer it is necessary to recollect what is already agreed upon by the best writers as to the intellectual food which theology first assimilated. It is conceded on all sides that the earliest language of the Christian Church was Greek， and that the problems to which it first addressed itself were those for which Greek philosophy in its later forms had prepared the way. Greek metaphysical literature contained the sole stock of words and ideas out of which the human mind could provide itself with the means of engaging in the profound controversies as to the Divine Persons， the Divine Substance， and the Divine Natures. The Latin language and the meagre Latin philosophy were quite unequal to the undertaking， and accordingly the Western or Latin-speaking provinces of the Empire adopted the conclusions of the East without disputing or reviewing them. “Latin Christianity，” says Dean Milman， “accepted the creed which its narrow and barren vocabulary could hardly express in adequate terms. Yet， throughout， the adhesion of Rome and the West was a passive acquiescence in the dogmatic system which had been wrought out by the profounder theology of the Eastern divines， rather than a vigorous and original examination on her part of those mysteries. The Latin Church was the scholar as well as the loyal partizan of Athanasius.” But when the separation of East and West became wider， and the Latin-speaking Western Empire began to live with an intellectual life of its own， its deference to the East was all at once exchanged for the agitation of a number of questions entirely foreign to Eastern speculation. “While Greek theology （Milman， Latin Christianity， Preface， 5） went on defining with still more exquisite subtlety the Godhead and the nature of Christ” —— “while the interminable controversy still lengthened out and cast forth sect after sect from the enfeebled community” —— the Western Church threw itself with passionate ardour into a new order of disputes， the same which from those days to this have never lost their interest for any family of mankind at any time included in the Latin communion. The nature of Sin and its transmission by inheritance —— the debt owed by man and its vicarious satisfaction —— the necessity and sufficiency of the Atonement —— above all the apparent antagonism between Free-will and the Divine Providence —— these were the points which the West began to debate as ardently as ever the East had discussed the articles of its more special creed. Why is it then that on the two sides of the line which divides the Greek-speaking from the Latin-speaking provinces there lie two classes of theological problems so strikingly different from one another？ The historians of the Church have come close upon the solution when they remark that the new problems were more “practical，” less absolutely speculative， than those which had torn Eastern Christianity asunder， but none of them， so far as I am aware， has quite reached it. I affirm without hesitation that the difference between the two theological systems is accounted for by the fact that， in passing from the East to the West， theological speculation had passed from a climate of Greek metaphysics to a climate of Roman law. For some centuries before these controversies rose into overwhelming importance， all the intellectual activity of the Western Romans had been expended on jurisprudence exclusively. They had been occupied in applying a peculiar set of principles to all the combinations in which the circumstances of life are capable of being arranged. No foreign pursuit or taste called off their attention from this engrossing occupation， and for carrying it on they possessed a vocabulary as accurate as it was copious， a strict method of reasoning， a stock of general propositions on conduct more or less verified by experience， and a rigid moral philosophy. It was impossible that they should not select from the questions indicated by the Christian records those which had some affinity with the order of speculations to which they were accustomed， and that their manner of dealing with them should borrow something from their forensic habits. Almost everybody who has knowledge enough of Roman law to appreciate the Roman penal system， the Roman theory of the obligations established by Contract or Delict， the Roman view of Debts and of the modes of incurring， extinguishing， and transmitting them， the Roman notion of the continuance of individual existence by Universal Succession， may be trusted to say whence arose the frame of mind to which the problems of Western theology proved so congenial， whence came the phraseology in which these problems were stated， and whence the description of reasoning employed in their solution. It must only be recollected that Roman law which had worked itself into Western thought was neither the archaic system of the ancient city， nor the pruned and curtailed jurisprudence of the Byzantine Emperors； still less， of course， was it the mass of rules， nearly buried in a parasitical overgrowth of modern speculative doctrine， which passes by the name of Modern Civil Law. I speak only of that philosophy of jurisprudence， wrought out by the great juridical thinkers of the Antonine age， which may. still be partially reproduced from the Pandects of Justinian， a system to which few faults can be attributed except it perhaps aimed at a higher degree of elegance， certainty， and precision， than human affairs will permit to the limits within which human laws seek to confine them.

　　It is a singular result of that ignorance of Roman law which Englishmen readily confess， and of which they are sometimes not ashamed to boast， that many English writers of note and credit have been led by it to put forward the most untenable of paradoxes concerning the condition of human intellect during the Roman Empire. It has been constantly asserted， As unhesitatingly as if there were no temerity in advancing the proposition， that from the close of the Augustan era to the general awakening of interest on the points of the Christian faith， the mental energies of the civilised world were smitten with a paralysis. Now there are two subjects of thought —— the only two perhaps with the exception of physical science —— which are able to give employment to all the Powers and capacities which the mind possesses. One of them is Metaphysical inquiry， which knows no limits so long as the mind is satisfied to work on itself； the other is law， which is as extensive as the concerns of mankind. It happens that， during the very period indicated， the Greek-speaking provinces were devoted to one， the Latin Speaking provinces to the other， of these studies. I say nothing of the fruits of speculation in Alexandria and the East， but I confidently affirm that Rome and the West had an occupation in hand fully capable of compensating them for the absence of every other mental exercise， and I add that the results achieved， so far as we know them， were not unworthy of the continuous and exclusive labour bestowed on producing them. Nobody except a professional lawyer is perhaps in a position completely to understand how much of the intellectual strength of individuals Law is capable of absorbing， but a layman has no difficulty in comprehending why it was that an unusual share of the collective intellect of Rome was engrossed by jurisprudence. “The proficiency （2*） of a given community in jurisprudence depends in the long run on the same conditions as its progress in any other line of inquiry； and the chief of these are the proportion of the national intellect devoted to it， and the length of time during which it is so devoted. Now， a combination of all the causes， direct and indirect， which contribute to the advancing and perfecting of a science continued to operate on the jurisprudence of Rome through the entire space between the Twelve Tables and the severance of the two Empires， —— and that not irregularly or at intervals， but in steadily increasing force and constantly augmenting number. We should reflect that the earliest intellectual exercise to which a young nation devotes itself is the study of its laws. As soon as the mind makes its first conscious efforts towards generalisation， the concerns of every-day life are the first to press for inclusion within general rules and comprehensive formulas. The popularity of the pursuit on which all the energies of the young commonwealth are bent is at the outset unbounded； but it ceases in time. The monopoly of mind by law is broken down. The crowd at the morning audience of the great Roman jurisconsult lessens. The students are counted by hundreds instead of thousands in the English Inns of Court. Art， Literature， Science， and Politics， claim their share of the national intellect； and the practice of jurisprudence is confined within the circle of a profession， never indeed limited or insignificant， but attracted as much by the rewards as by the intrinsic recommendations of their science. This succession of changes exhibited itself even more strikingly at Rome than in England. To the close of the Republic the law was the sole field for all ability except the special talent of a capacity for generalship. But a new stage of intellectual progress began with the Augustan age， as it did with our own Elizabethan era. We all know what were its achievements in poetry and prose； but there are some indications， it should be remarked， that， besides its efflorescence in ornamental literature， it was on the eve of throwing out new aptitude for conquest in physical science. Here， however， is the point at which the history of mind in the Roman State ceases to be parallel to the routes which mental progress had since then pursued. The brief span of Roman literature， strictly so called， was suddenly closed under a variety of influences， which though they may partially be traced it would be improper in this place to analyse. Ancient intellect was forcibly thrust back into its old courses， and law again became no less exclusively the proper sphere for talent than it had been in the days when the Romans despised philosophy and poetry as the toys of a childish race. Of what nature were the external inducements which， during the Imperial period， tended to draw a man of inherent capacity to the pursuits of the jurisconsult may best be understood by considering the option which was practically before him in his choice of a profession. He might become a teacher of rhetoric， a commander of frontier-posts， or a professional writer of panegyrics. The only other walk of active life which was open to him was the practice of the law. Through that lay the approach to wealth， to fame， to office， to the council-chamber of the monarch —— it may be to the very throne itself.”

　　The premium on the study of jurisprudence was so enormous that there were schools of law in every part of the Empire， even in the very domain of Metaphysics. But， though the transfer of the seat of empire to Byzantium gave a perceptible impetus to its cultivation in the East， jurisprudence never dethroned the pursuits which there competed with it. Its language was Latin， an exotic dialect in the Eastern half of the Empire. It is only of the West that we can lay down that law was not only the mental food of the ambitious and aspiring， but the sole aliment of all intellectual activity. Greek philosophy had never been more than a transient fashionable taste with the educated class of Rome itself， and when the new Eastern capital had been created， and the Empire subsequently divided into two， the divorce of the Western provinces from Greek speculation， and their exclusive devotion to jurisprudence， became more decided than ever. As soon then as they ceased to sit at the feet of the Greeks and began to ponder out a theology of their own， the theology proved to be permeated with forensic ideas and couched in a forensic phraseology. It is certain that this substratum of law in Western theology lies exceedingly deep. A new set of Greek theories， the Aristotelian philosophy， made their way afterwards into the West and almost entirely buried its indigenous doctrines. But when at the Reformation it partially shook itself free from their influence， it instantly supplied their place with Law. It is difficult to say whether the religious system of Calvin or the religious system of the Arminians has the more markedly legal character.

　　The vast influence of the specific jurisprudence of Contract produced by the Romans upon the corresponding department of modern Law belongs rather to the history of mature juris prudence than to a treatise like the present. It did not make itself felt till the school of Bologna founded the legal science of modern Europe. But the fact that the Romans， before their Empire fell， had so fully developed the conception of Contract becomes of importance at a much earlier period than this. Feudalism， I have repeatedly asserted， was a compound of archaic barbarian usage with Roman law； no other explanation of it is tenable， or even intelligible. The earliest social forms of the feudal period differ in little from the ordinary associations in which the men of primitive civilisations are everywhere seen united. A Fief was an organically complete brotherhood of associates whose proprietary and personal rights were inextricably blended together. It had much in common with an Indian Village Community and much in common with a Highland clan. But still it presents some phenomena which we never find in the associations which are spontaneously formed by beginners in civilisation. True archaic communities are held together not by express rules， but by sentiment， or， we should perhaps say， by instinct； and new comers into the brotherhood are brought within the range of this instinct by falsely pretending to share in the blood relationship from which it naturally springs. But the earliest feudal communities were neither bound together by mere sentiment nor recruited by a fiction. The tie which united them was Contract， and they obtained new associates by contracting with them. The relation of the lord to the vassals had originally been settled by express engagement， and a person wishing to engraft himself on the brotherhood by commendation or infeudation came to a distinct understanding as to the conditions on which he was to be admitted. It is therefore the sphere occupied in them by Contract which principally distinguishes the feudal institutions from the unadulterated usages of primitive races. The lord had many of the characteristics of a patriarchal chieftain， but his prerogative was limited by a variety of settled customs traceable to the express conditions which had been agreed upon when the infeudation took place. Hence flow the chief differences which forbid us to class the feudal societies with true archaic communities. They were much more durable and much more various； more durable， because express rules art less destructible than instinctive habits， and more various， because the contracts on which they were founded were adjusted to the minutest circumstances and wishes of the persons who surrendered or granted away their lands. This last consideration may serve to indicate how greatly the vulgar opinions current among us as to the origin of modern society stand in need of revision. It is often said that the irregular and various contour of modern civilisation is due to the exuberant and erratic genius of the Germanic races， and it is often contrasted with the dull routine of the Roman Empire. The truth is that the Empire bequeathed to modern society the legal conception to which all this irregularity is attributable； if the customs and institutions of barbarians have one characteristic more striking than another， it is their extreme uniformity.

　　NOTES： 1. The passage quoted is transcribed with slight alterations from a paper contributed by the author to the Cambridge Essays for 1856. 2. Cambridge Essays， 1856.

　　Henry Sumner Maine

第九章　契约的早期史

　　关于我们所处的时代，能一见而立即同意接受的一般命题是这样一个说法，即我们今日的社会和以前历代社会之间所存在的主要不同之点；乃在于契约在社会中所占范围的大小。这个说法所根据的现象，有些都是常常被提出来受到注意、批评和颂扬的。我们决不会毫不经心地不理会到：在无数的事例中，旧的法律是在人出生时就不可改变地确定了一个人的社会地位，现代法律则允许他用协议的方法来为其自己创设社会地位；真的，对于这个规定有几个例外，不断地在热烈愤慨下遭到废弃。例如，黑奴问题，到现在仍被剧烈争论着，其真正争执之点是：奴隶的身分究竟是不是属于过去的制度，又如雇主和工人之间能合乎现代道德的唯一关系，究竟是不是完全由契约决定的一种关系。承认过去和现在之间存在这种差别，是最著名的现代思想的实质。可以断言，“政治经济学”是今日有相当进步的唯一伦理研究部门，它将会和生活的事实不相符合，如果“强行法”对它一度占据的领域的绝大部分不肯加以放弃，并且人们不能具有直到最近才允许他们有的决定其自己行为规律的一种自由。受到政治经济学训练的大多数人都有这样一种偏见，认为他们的科学所根据的一般真理是有可能变为普遍性的真理的，并且，当他们把它作为一种艺术而运用时，他们一般都着重于扩大“契约”的领域，缩小“强行法”的领域，只有在必须依靠法律以强制“契约”的履行时，才是例外。一些思想家在这种思潮影响下作出的鼓动，开始在西方世界中很强烈地感觉到。

　　立法几乎已经自己承认它和人类在发现、发明以及大量积累财富各方面的活动无法并驾齐驱；即使在最不进步的社会中，法律亦逐渐倾向于成为一种仅仅的表层，在它下面，有一种不断在变更着的契约规定的集合，除非为了要强迫遵从少数基本原理或者为了处罚违背信用必须诉求法律外，法律绝少干预这些契约的规定。

　　社会研究，因为它们必须依靠对法律现象的考究，是在一种非常落后的状态中，因此，我们发现这些真理不为今天流行着的有关社会进步的日常用语所承认，是不足为奇的。这些日常用语比较符合我们的偏见，而不符合我们的信念。当“契约”所根据的道德成为问题的时候，绝大多数的人都更强有力地不顾把道德认为是进步的，我们中有许多人几乎本能地不愿承认我们同胞所有的善意和信任，会比古时代更为广泛传布，也不愿承认我们当代的礼仪中有能和古代世界中的忠诚相比拟的东西。有的时候，这些先入之见的声势为诈欺行为所大大加强，这种诈欺行为是在它们被目睹之前所未曾听到过的，并且以其犯罪行为而使人震骇，更以其复杂而令人惊异。但这些欺诈行为的性质明白地显示出：在它们成为可能之前，它们所破坏的道德义务必定已超过了一定比例的发展。由于多数人笃守信义，就给了少数人不顾信义的方便，因此，当巨大的不诚实的事件发生时，必然的结论是，在一般的交易中都显现出审慎的正直，只在特殊情形中才予犯法者以可乘之机。如果我们坚持要从法律学上的反映来看道德史，并且把我们的眼光向着“犯罪”法而不是向着 “契约”法，则我们必须细心谨慎，才不致错误。最古罗马法所处理的唯一形式的不诚实，是“窃盗罪”。在我写本书的时候，英国刑法中最新的一章，是企图为 “受托人”的欺诈行为作出处罚的规定。从这对比中所可能得到的正当推论，并不是原始罗马人比我们有更高的道德观念。我们应该说，在他们和我们相隔开的时代中间，道德已经从一个很粗浅的概念进步到一种高度精炼的概念——从把财产权视为绝对神圣，发展到把仅仅由于片面信用而产生的权利视为有权受到刑事法律的保护。

　　法学家的各种明确理论，在这一点上，并不比普通人的意见更接近真理。试从罗马法律家的见解开始，我们发现他们的见解和道德及法律进步的真正历史并不符合。在有一类的契约中，以缔约两造的善意担保为唯一要件，这种契约他们特别称之为“万民法契约”（Contracts juris gentium）。

　　并且，虽然这些契约无疑地是罗马制度中最迟产生的，但其所用的用语，如果我们可以从中吸取其含义的话，实包含着：这些契约比在罗马法中处理的某种其他形式的约定还要古远，在罗马法中忽视一个专门手续程序，就要像误会或欺骗一样损害到责任。然而所谓它们是古远的说法，是模糊的、暧昧的，是只能通过“现在”方能理解的；所谓“国际法契约”被明白地看作人类在“自然状态”下所知道的一种“契约”，也要到罗马法律家的用语变成了对罗马法律家的思想方式已不再能理解的一个时代的用语之后才能理解。卢梭兼有了法律上的和通俗的错误。在“论艺术和科学对道德的影响”（Dissertation on the Effects of Art and Science upon Morals）——这是他作品中引人注意的第一部，并且是他最无保留地申述他的意见使他成为一个学派首创人的一篇作品——中，他一再指出古波斯人的诚实和善意，认为这些是原始人天真的特征，已经逐渐为文明所消灭了的；到一个较后的时期，他把他所有理论完全放在一个原始“社会契约”学理的基础上。所谓“社会契约”，是我们正在讨论的错误所形成的最有系统的一种形式。这个理论虽然为政治热情所抚育而趋于重要，但所有它的营养则完全来自法律学的纯理论。首先受它吸引的著名英国人士所以重视它，主要是由于可以在政治上利用它，但是，正象我现在解释的，如果政治家不是长期地用法律用语来进行争辩，则他们将决不可能达到它。同时这个理论的英国著者也不是对于这理论的深远影响茫然不见的，因为法国人就是经过这种推荐而承继到它的。法国人的著作显示出：他们认为这个理论可以用来说明一切政治现象，同时也可以说明一切社会现象。他们看到在他们时代中已经非常触目的事实，即人类所遵守的现实法规中，比较大的部分都是由“契约” 设定的，只有少数是由“强行法”设定的。但是，他们对于法律学中这两个要素的历史关系，或者是一无所知，或者是漠不关心。因此，他们提出一切“法律”源自 “契约”的理论，其目的是在满足他们的尝试，要把所有法律学归因于一个一致渊源的纯理论，同时也在规避主张“强行法”来自神授的各种学理。在另一个思想阶段中，他们可能满足于把他们的理论停留在一个巧妙假设或一个便利的口头公式的情况中。但这个时代，是在法律迷信的统治之下。“自然状态”已不再是似是而非的东西了，因此，在坚持“社会契约”是一种历史事实时，就很容易使“法律”起源于契约的理论获得一种虚伪的真实性和明确性。

　　我们自己的一代已经摈弃了这些错误的法律理论，部分由于我们已经超过了他们所处的智力状态，部分由于我们已经几乎完全停止再在这类主题上进行推理。喜爱研究的人们在目前所乐于从事的工作，以及答复我们祖先对社会状态起源所持纯理论的工作，是对现在存在和在我们眼前活动的社会进行分析；但是，由于缺少历史的帮助，这种分析就时常退化而成为一种徒然是好奇心的活动，并且特别容易使研究者不能理解和他所习见的有很大不同的社会状态。用我们自己时代的道德观念来评价其他时代的人们，其错误正如假定现代社会机器中的每一个轮子、每一只螺钉在较原始的社会中都有其相对物的那样错误。在用现代风格写成的历史著作中，这类印象繁衍很广，并且都很巧妙地掩盖着它们自己；但是我在法律学的领域中也发现了它们的痕迹，如一般对孟德斯鸠穿插在其“波斯人信札”（Lettres Persanes）中有关“穴居人”（Troglodytes）的小寓言所作的颂扬中。据说“穴居人”是一种人，由于他们系统地破坏其“契约”，因而全部遭受灭亡。如果这个故事表示着著者意中的道德观念，并且是用以暴露这一世纪和上一个世纪曾受到其威胁的一种反社会异端，这诚然是无可指摘的；但如果由它而得到的推论是：一个社会在允约和合意上如果没有给予一种神圣性，而这种神圣性与一个成熟文明所给予的尊敬相类似，这个社会就不可能结合在一起，则它所含有的错误将是非常严重的，它将使我们对于法律史不能作出正确的理解。事实是，“穴居人”完全没有注意到“契约”责任，却曾兴旺起来，建立过强有力的国家。在原始社会组织中，必须首先了解的一点是，个人并不为其自己设定任何权利，也不为其自己设定任何义务。

　　他所应遵守的规则，首先来自他所出生的场所，其次来自他作为其中成员的户主所给他的强行命令。在这样制度下，就很少有“契约”活动的余地。同一家族的成员之间（我们得这样来解释证据）是完全不能相互缔结契约的，对于其从属成员中任何一人企图拘束家族而作出的合意，家族有权置之不理。诚然，家族得与其他家族缔结契约，族长得与族长缔结契约，但这种交易在性质上和财产的让与相同，并同样地有许多繁文缛节，只要在履行时忽略其中一个细节就足以使义务归于无效。由于一个人对另外一个人的话加以信赖而产生积极义务，是进步文明最迟缓的胜利品之一。

　　无论是“古代法”或是任何其他证据，都没有告诉我们有一种毫无“契约”概念的社会。这种概念在最初出现时，显然是极原始的。在可靠的原始记录中，我们都可以注意到，使我们实践一个允约的习性还没有完全发展，种种罪恶昭彰不信不义的行为常被提到，竟毫无非难，有时反加以赞许。例如，在荷马文学中，优烈锡士的欺诈狡猾，好象是和纳斯佗（Nestor）的智虑明达、海克佗（Hector）的坚毅不拔以及亚济里斯（Achilles）的英雄豪侠处于同等的一种美德。古代法特别使我看到粗糙形式的和成熟时期的“契约”间存在着一个很远的距离。在开始时，法律对于强迫履行一个允约，并不加以干预。使法律执有制裁武器的，不是一个允约，而是附着一种庄严仪式的允约。仪式不但和允约本身有同样的重要性，仪式并且还比允约更为重要；因为成熟的法律学着重于仔细分析据供一个特定的口头同意的心理条件，而在古代法中则着重于附着在仪式上的言语和动作。如果有一个形式被遗漏了或用错了，则誓约就不能强行，但是，在另一方面，如果所有形式经表明已完全正确进行，则纵使以允约是在威胁或欺骗之下作出为辩解，也属徒然。从这样一种古代的看法，转变而成为一个“契约”的熟习观念，其转化过程在法律学史中是显然可见的。在起初，仪式中有一个或二个步骤省略了；后来其他的也简化了或者在某种条件下忽略了；最后，少数特殊的契约从其他契约中分离出来，准许不经任何仪式而缔结定约，这种选定的契约都是些社会交往活动和力量所依靠的。心头的约定从繁文缛节中迟缓地但是非常显著地分离出来，并且逐渐地成为法学专家兴趣集中的唯一要素。

　　这种心头约定通过外界行为而表示，罗马人称之为一个“合约”（Pact）或“协议”（Convention）；当“协议”一度视为一个“契约”的核心时，在前进中的法律学不久就产生了一种倾向，使契约逐渐和其形式和仪式的外壳脱离。在这以后，形式只在为了要保证真实性和为了要保证谨慎和细心时才加保留。一个“契约”的观念是完全地发展了，或者，用罗马人的用语来说，“契约”是吸收在“合约”中了。

　　罗马法律中这个变更过程的历史，是非常有启发性的。在法律学的最初曙光期，用以表示一个“契约”的名词是历史“拉丁语法”学者很熟悉的一个名词。这就是“耐克逊”，契约的两造称为“耐克先”（nexi），这两个用语必须特别注意，由于它们所依据的隐喻特别持久。在一个契约合意下的人们由一个强有力的约束或连锁联结在一起，这个观念一直继续着，直到最后影响着罗马的“契约”法律学；并且由这里顺流而下，它和各种现代观念混合起来。然则在这耐克逊或约束中，究竟包括些什么？从一个拉丁考古学家传下来的一个定义，认为耐克逊是每一种用铜片和衡具的交易（omne quod geritur per fs et libram），这些文字曾引起了许多疑惑。铜片和衡具是“曼企帕地荷”的著名附属物，即在前章中描述过的古代仪式，通过这种仪式“罗马财产”最高形式中的所有权就由一个人移转到另外一个人。“曼企帕地荷”是一种让与，因此就发生了一个困难，因为这样的定义似乎把“契约”和“让与”混淆起来了，而在法律哲学上，它们不仅仅是各别的，而且在实际上是相互对立的。物权（jus in re）、对世权（right in rem），即“对全世界有效的”权利或“财产所有权”，在成熟法律学的分析中是和人权（jus ad rem）、对人权（right in personam），即“对一单独个人或团体有效的”权利或债权，有明显的区别的。

　　“让与”转移“财产所有权”，“契约”创设“债权”——然则，这两者怎样会包括在同一的名称或同一的一般概念之下？这和许多相似的困难一样，是由于把显然属于智力发展进步阶段的一种能力，把在实践上混合在一起的各种纯理论观点加以区别的能力，错误地认为属于一个未成形社会的心理状态而产生的。我们有不可误解的有关社会事务状态的各种迹象，证明“让与”和“契约”在实际上是混淆不分的；同时，直到人们在缔约和让与中采用一种各别的实践前，这两个概念的差异从来没有为人们所领会到。

　　这里可以看到，我们对古罗马法已具有足够的知识，使我们可以提供一些在法律学萌芽时代各种法律概念和法律用语所遵循的转化方式的大概。它们所经历的变更似乎是从一般到特殊的一种变更；或者，换言之，古代的概念和古代的名词是处于逐渐专门化的过程中。一个古代的法律概念相当于不仅一个而是几个现代概念。一个古代的专门术语可以用来表示许多东西，这些东西在现代法律中分别具有各种不同的名称。如果我们研究下一阶段的法律学史，我们就可以看到次要的概念逐渐地被解脱出来，旧的一般的名称正为特别的名称所代替。旧的一般概念并没有被遗忘，但它已不再包括它起初包括的一种或几种观点。因此同样的，古代的专门术语依旧存在，但它只执行着它以前一度具有的许多职能中的一种。我们可以从许多方面来证明这种现象。例如，各式各样的“父权”在过去曾一度被认为是属于同一性质的，它也无疑地被归属于一个名称之下。祖先所行使的权力，不论它是对家族或是对物质财产——对牛、羊、奴隶、子女或妻——行使的统是一样的。我们不能绝对地确定权力的旧的罗马名称，但我们有强有力的理由相信：曼奴斯（manus）能表示各种不同程度的权力，就可知道古代对于权力的一般名词是曼奴斯。但是，当罗马法稍稍进步了后，名称和观念都专门化了。“权力”按照着它所行使的对象而在文字上或在概念上明确地区分了。对物质商品或奴隶行使的权力，成为完全所有权——对儿女，称为家父权——，对那些已被他们的祖先把他们的劳役卖给了别人的自由人，称为曼企帕因——，对其子，则仍然是曼奴斯。可以看到，旧的文字并没有完全废止，只是限制于它以前表示的权限的一种特定的行使上而已。

　　这个例子可以使我们理解“契约”和“让与”在历史上所发生的关联的性质。一切要式行为在开始时可能只有一种庄严的仪式，在罗马，它的名称在过去似乎就是耐克逊。过去在让与财产时所用的同样形式，后来似乎就恰恰被用于缔结一个契约。但经过不多时候，我们到达了这样一个时期，当时一个“契约”的观念又被从一个“让与”的观念中分离了出来。这样，就发生了一个双重的变化。“用铜片和衡具”的交易，当它的目的是在移转财产时，采用了一个新的、特殊的名称，“曼企帕地荷”。而古代的“耐克逊”则仍旧用以表示原来的仪式，但这样仪式只被用于使契约庄严化的特殊目的。

　　当我们说：在古代二种或三种法律概念往往混合为一，我们的意思并不是在暗示：在这些包括在一起的几个观念之中不可能有一种观念会比其他各种观念古老一些，或者，在几个观念形成时，也不可能有一种观念会较其他观念显著地占优势，并居于它们之上。为什么一个法律概念会继续长期包括几个概念，一个术语会代替几个术语，其理由无疑地是因为在原始社会中，往往在人们有机会注意或给与适当名称之前，法律在实践上很早已发生了变化。虽然我们已说过，“父权”在最初时并不是因它所行使的对象的不同而有所区分，然我确切地感到，“对子女的权力”（Power over Children）实即是古代“权力”概念的基础；我也深信在最早应用“耐克逊”时，也即是在原来应用它的人们的心目中，“耐克逊”的作用是在使财产的移转有适当的庄严仪式。大概“耐克逊”的略微歪曲其原来的职能，最初是为了使它适用于“契约”，而由于它改变的程度十分轻微，所以人们长期没有觉察或注意到。旧的名称仍旧保留着，因为人们没有感觉到他们需要一个新的名称。旧的观念盘踞在人们脑中，因为没有人发现有理由要费心来研究它。这种情况，在“遗嘱” 史中已有了明白的例证。一个“遗嘱”在最初只是简单的财产移转。只在这种特殊让与和一切其他让与之间逐渐发生了巨大的实践上的差别，才使这种让与被分别对待，即使是这样，也还需要经过几个世纪以后，法律改良者才把这名义上的曼企帕地荷，作为无用的累赘而加以清除，并同意在“遗嘱”中除了“遗嘱人”的明白意思外，其他一切都非必要。不幸的是，我们无法以对“遗嘱”的早期史的绝对信心来追溯“契约”的早期史，但我们并非完全没有暗示，说明契约在最初出现时是把耐克逊放在一种新的应用中，后来通过实际试验获得了重要效果，被承认为一种各别的交易。下述过程的描写虽然是出于臆测，但并非全无根据。我们试以一次现款买卖作为“耐克逊”的通常形式。出卖人携带他意欲处分的财产——例如一个奴隶——买受人带来了他用作金钱的粗铜块——还有一个不可缺少的助手，即司秤，他带来了一个天平秤。通过规定手续，奴隶被移交给买受人——铜块经司秤秤过，然后移交给出卖人。在这交易继续进行的过程中，我们称之为耐克逊，买卖的双方是耐克先；但一当交易完成后，耐克逊就告中止，出卖人和买受人即不再具有他们因这暂时关系而产生的名称。在这里，我们试再根据商业史的发展向前跨进一步。假定奴隶是移转了，但没有付钱。在这种情况下，就出卖人说，耐克逊是完成了，并且当他已移交其财产后，他已不再是耐克苏斯（nexus）；但就买受人说，耐克逊仍在继续着。就他的部分而论，交易还未完成，他仍被认为是耐克苏斯。因此，可以看到，这同一名词在一方面是指财产品以移转的“让与”，在另一方面又是指债务人对于还没有偿付的买价的个人债务。我们还可以更进一步，假设一种程序是完全属于形式，在这程序中并没有东西移转，也没有东西偿付；这就表明了一种更高级商业活动的交易，一种将来生效的买卖契约（executory Contract of Sale）。

　　如果在一般见解和职业见解中，真的都把一个契约长期地认为是一种不完全的让与，这个真理的重要性是有多种理由的。在上一世纪中，有关人类在自然状态中的各种纯理论被概括为这样一个学理，即“在原始社会中财产是不当什么的，被重视的只有债务”，这并非是完全不适当的；但现在可以看到，如果把这个命题颠倒过来，可能会更接近于实际。另一方面，从历史上考虑，“让与”和“契约”在原始时代的联系，说明了某些常被学者和法学家认为特别难以解释的东西，我的意思是指：极古法律制度中一般都对于债务人非常苛酷，并给与债权人以过分的权力。当我们一度懂得了耐克逊是被人为地延长了以使债务人有一定的时间，我们就可以更好地理解他在公众和法律之前的地位。他的负债无疑地被认为是一种变例，而中止付款一般被认为是一种诡计和对于严格的规定的一种歪曲。相反的，凡是在交易中正当地完成其任务的人，必为人所尊重；那就很自然的要使他掌握紧急的武器，以便强使程序完成，这个程序严格地讲，是决不应该准许展期或迟延的。

　　因此，“耐克逊”的原意是一种财产让与，在不知不觉中也用来表示一个“契约”，并且，在最后，这个字和一个“契约”观念经常发生联系，不得不用一个特定名词即“曼企帕因”或“曼企帕地荷”来表明真正的“耐克逊”或交易，这样财产是真正的移转了。现在，“契约”便从“让与”中分离出来，它们的历史的第一阶段于是完成了。但它们发展到这样一个时期，即缔约者的允约要比附带进行的手续程序有更高神圣性的时期，则还有很大一段距离。为了说明这一时期中所发生的变化的性质，必须略为越出本文范围之外，研究一下罗马法学专家关于“合意”的分析。这种分析是他们智慧最美丽的纪念碑，在这分析中，我只须约略提一下，它把“债”和 “协议”或“合约”在理论上加以分开。边沁和奥斯丁先生宣称，“一个契约有两个要素：首先，要约者一造表示意向，要做他约定要做的行为或遵守他约定要遵守的不行为。其次，是受约者表示他预期要约者一造履行其提出的允约”。这在实际上是和罗马法律家的学理完全相同的，但在他们的见解中，这些“表示”的结果不是一个“契约”而是一个“协议”或“合约”。一个“合约”是个人相互间同意的极端产物，它显然还不够成为一个“契约”。它最后是否会成为一个“契约”，要看法律是否把一个“债”附加上去。一个“契约”是一个“合约”（或“协议”）加上一个“债”。在这个“合约”还没有附带着“债”的时候，它称为空虚（nude 或naked）合约。

　　什么是一个“债”？罗马法律家的定义是：“应负担履行义务的法锁”（Juris vinculum，quo mecessitate ad stringimur alicujus solvenderei）。这个定义通过它们所根据的共同隐喻而把“债”和“耐克逊”联系起来，并明白告诉我们一个特殊概念的体系。“债”是法律用以把人或集体的人结合在一起的“束缚”或“锁链”，作为某种自愿行为的后果。凡引起“债”的效果的行为，主要是那些归类在“契约”和“侵权”、“合意”和“损害”等题目之下的行为；但是有许多其他行为能造成类似后果的，却不能包括在一种确切分类中。应予注意的是，行为并不是由于任何道德上的必要而使它自己负上 “债”的；这是由法律根据其充沛的权力而附加上去的，这是非常有必要加以注意的一点，因为“市民法”的现代解释者有时提出了一个不同的学理，并以他们自己道德的或形而上学的理论来作为支持。法锁的意