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tract, appears everywhere only at an advanced stage of legal development. This is undoubtedly sound. Even the classical Roman law in its final form never attained a really general theory of contracts. Ultimately the want was supplied, but it would hardly be too much to say of the canonists on the Continent, certainly not too much to say of the common lawyers in England, that they took the kingdom of heaven by violence (cp. my Oxford Lectures, 1890, pp. 59-62 ; details and references for the English history in Pollock on Contract, 7th ed., pp. 136, 170; the use of the specially English term Consideration to represent the Roman causa is too dangerous a liberty to be allowed to any lesser man than Maine).
Maine censures unnamed English critics for identifying the quasi-contracts of the Civil Law (the term is, of course, not classical) with the implied contracts of the Common Law. But the truth is that this latter expression is, or very lately was, ambiguous. Real agreements manifested by acts and conduct, and not by words, were constantly spoken of as “implied' contracts in English books, as Maine says, at the time when he wrote and long afterwards. Thus the Indian Contract Act of 1872 declares that a promise made otherwise than in words is said to be implied. Here a real agreement is inferred as a fact. But also many relations resembling those created by contract' (to use again the language of the Indian Act) arise from facts which in Roman law would produce an obligation quasi ex contractu. Such facts, under the Common Law, may produce an obligation ascribed in the old system of pleading to a fictitious promise, which promise was said to be implied' by the law. There are therefore so-called implied contracts in our law which may quite properly be compared with the quasi-contracts of the Roman law; they cover, indeed, much of the same ground. Of late years the term quasi-contract bas been fully naturalized in the American law schools, and by this time it is fairly well known in England. "Constructive contract would have been correct and in harmony with the general usage of the Common Law, but no one seems ever to have used it.
One result, and a somewhat important one, of observing how late and slow of growth any general doctrine of contract has been in any system of civilized law is to strengthen the conviction that a huge anachronism is involved in those political theories which seek to make contract the foundation of all positive law and even of government itself. It should be noted that the doctrine of the Social Contract is much earlier than appears in Maine's statement, and that the theory of the divine right of kings, to which Maine alludes very briefly, was in its origin directed not against popular liberty but against papal and ecclesiastical claims to supremacy in
temporal as well as spiritual affairs, as Mr. J. Neville Figgis has shown at large in his learned and acute monograph (The Theory of the Divine Right of Kings, Cambridge, 1896).
We have said that the classical Roman system of contract was not theoretically complete ; but this did not prevent the discovery that rights could be freely and largely modified by contract (for a discovery this was to the men of the Middle Ages, when the revived study of Roman law made the fact prominent) from exercising a fascination which is not at all exaggerated in Maine's remarks at the end of this chapter. For a time there was a tendency to assume that estates and interests in land could be modified without limit at the will of parties, and this was not effectually checked in England until the latter part of the thirteenth century.
CHAPTER X. Note S. Archaic Procedure. The account given by Maine of the symbolism involved in the Legis Actio Sacramenti may be taken as generally correct. The Sacramentum itself, however, seems, according to the generally received modern opinion, to have had the definite and practical purpose of bringing the matter in dispute within the highest jurisdiction. Each party swears to the justice of his cause under a conventional forfeit, and thus the king, who is also chief priest, is brought in to decide which of them is perjured: 'il faut au roi, chef de la religion et de la justice criminelle, chercher qui a raison.' The separation of civil and spiritual jurisdiction under the Republic led to the abolition of the oath (Girard, Manuel, pp. 13, 977). If this opinion is right, the Praetor does not represent a discreet passer-by, nor yet (as might also be conjectured) the village elders, but intervenes as the minister of the king's justice, conceived in the first instance (as it was in England in the early Middle Ages) as an extraordinary justice applicable only for special reasons. English readers hardly need to be reminded of the fictions by which the King's Bench and Exchequer extended their jurisdiction to ordinary pleas between subjects.
Maine's reference to the trial scene described in the Iliad, 2. 497-508, as adorning the shield of Achilles, is very brief; but the whole scene is of such interest for early legal history that we may be allowed to dwell on it a little. The point specially made by Maine is that the two talents of gold are a fee for the member of the court who shall be thought to speak the law best. On this he is confirmed by Dr. W. Leaf's very careful interpretation of the passage in his notes ad loc., and his earlier paper in Journ. Hell, Stud. viii. 122. There is no difficulty about the magnitude of the
sum, for the Homeric talent represents only the value of one ox (Ridgeway in Journ. Hell. Stud. viii. 133). We shall now give Dr. Leaf's version,
• The people were gathered in the place of assembly, and there had sprung up a strife; two men were striving about the price of a man slain. The one averred that he had paid in full [namely by tender of the blood-fine then and there before the assembly'; but Dr. Leaf's alternative in his later notes to the Iliad, Appendix I, “claimed to pay,” is as good or better for the grammar of evyeto Távt' åtoðouvai, and makes better sense], and made declaration thereof to the people, but the other refused to accept aught [this is the proper idiomatic meaning of αναίνετο μηδέν έλέσθαι : denied that he had received anything" is, even apart from the context, barely admissible); and both were desirous to take an issue at the band of a daysman [this person, lotwp, summons the council and presides, but the judgment has to be theirs; he is more like the sheriff in the old county court than a modern judge or referee]; and the people were shouting for both, taking part for either side (not unlike such glimpses as Bracton's Note Book and other sources afford us of the behaviour of mediaeval county courts]. And the heralds were restraining the people, and the elders sate on polished stones in the holy circle (such stones may be seen on Dartmoor to this day), and in their hands they held the clear-voiced herald's staves. With these they rose up and gave sentence in turn; and in their midst lay two talents of gold to give to him among them that spake the justest doom.'
In addition to Dr. Leaf's reasons for rejecting the view formerly current that the dispute is on the mere question of fact whether a blood-fine admitted to be due has been paid or not, we may observe that such a payment would surely be made in a notorious manner and with ample witness, to say nothing of the physical difficulty of handing over some score of cattle (for such would be the most likely form of payment) as privately as modern debtors hand over cash or post a cheque.
The result is that we are confronted with an ancient Greek bloodfeud in an interesting stage of transition, that in which the slain man's kindred are no longer free to accept or refuse compensation at their will, but are expected to abandon the feud, in a proper case, on receiving a sum fixed either by custom or by the judgment of the assembly. Homicide aggravated by treachery or the like would probably not fall within such a rule; and the amount of the fine, if we may judge by the practice of Iceland as described in the Sagas, might give matter enough for discussion among the wise men even if no preliminary question arose. Indications of a similar stage, though not clear enough to amount to proof if they stood alone, may be found in the Anglo-Saxon laws.
There is no question in the Homeric text of a formally compulsory jurisdiction; the parties have agreed to put themselves on the judgment of the assembly whether in all the circumstances, whatever they were, tender of the customary fine ought to be accepted. But when such voluntary references have become common practice we are near the point at which they cease to be voluntary, and the party who stands out for what formerly would have been his right incurs, at all events, public reprobation which will be an efficient sanction for most purposes.
Maine's opinion that in the infancy of criminal jurisdiction the sum paid to the king, or the State, was not penal, but a fee for hearing and determining the cause at the request of the parties, the fair price of its time and trouble,' is borne out by later researches in the antiquities of Germanic law. Such was probably at one time the wite of the Anglo-Saxon laws, though it is treated as penal in the earliest documents we have. If one feature in early procedure may be fixed on more than another as marking the recognition of criminal and civil responsibility as distiuct in character, though one and the same act may be and quite commonly is both a wrong and an offence, perhaps it is the appearance of a special fine for breaking the peace. The development of the king's peace in England from a privilege attached to certain persons, places, and occasions, to the common right of every lawful man belongs to another and later stage.
REVIEWS AND NOTICES.
(Short notices do not necessarily exclude fuller review hereafter.
A Treatise on Private International Law: with principal reference to its
Practice in England. Fourth Edition. By John WESTLAKE, K.C.,
xxx and 437 pp. (168.) The last edition of this work was published fifteen years ago. In the course of so long a period a number of matters of Private International Law have to some extent undergone modification. Thus, as Professor Westlake points out, ‘De Nicols v. Curlier has settled that the proprietary relations of husband and wife are unaffected by a change of domicile after their marriage; Le Mesurier v. Le Mesurier has established that a residence not amounting to domicile cannot found the jurisdiction for divorce ; Winans v. Att.-Gen. has dispelled the uncertainty which certain cases, culminating in Moorhouse v. Lord, had thrown over the animus necessary for acquiring a domicile of choice,' &c. These modifications and others of minor importance, and additions of a corroborative rather than a modificative character, have increased the dimensions of the book from 382 pages, composing the third edition in 1890, to 437 pages in the present volume.
Professor Westlake discusses in particular the new doctrine known to the scientific lawyer under the name of Renvoi. He explains that what are called the international laws of a country, though distinguished from the rules of private international law adopted in it, form with the latter the whole law of a country. For example, twenty-one as the English or Danish age of majority and nineteen as the Italian, carefully separated from all consideration of an enacting authority having a definite range of legitimate action,' are treated as being the International laws of the respective countries, and their whole laws on the subject are made up by adding the principle of domicile or nationality as the case may be. ! Then on one view, which is called in French renvoi and in German “ Rückverweisung,” the rules of private international law are understood as referring a judge to the whole law of a given country, and not merely to its internal laws, so that in the case put above the principle of domicile would be understood as referring an English or Danish judge, who might be seized of the case, to the whole law of Italy, as determining the majority of the de cuius; this reference being made, the principle of nationality included in the whole law of Italy, would refer the same judge back to the whole law of his own country; that whole law would send him again to Italy; and so on for ever. No result is arrived at: there is a circulus inextricabilis.' The opponents of the renvoi treat the theoretical possibility of the circulus inextricabilis as proof that the rules of private international