Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/719

Rh JUS CIVILE.] ROMAN LAW 695 contract ; for Paul's derivation of it from stipulum, " firm," is much to be preferred to the earlier and more fanciful ones from stips or stipula. It was round the stipulation that the jurists grouped most of their disquisitions upon the general doctrines of the law of contract, capacity of parties, requisites of consent, consequences of fraud, error, and intimidation, effects of conditions and specifications of time, and so forth. It may well be said, therefore, that its introduction marked an epoch in the history of the law. There is, however, no certainty either as to the time or as to the manner of its introduction. So far as appears it was unknown at the time of the compilation of the XII. Tables, at least in private life ; one of the first unmistakable allusions to it is in the Aquilian law of 476 u.c. The mention of it in that enactment, however, is with regard to a phase of it which cannot have been reached for many years after it had come into use ; and the probability is that it originated before the middle of the 5th century, its first statu- tory recognition being in the Siliau law introducing the legis actio per condictionem (supra, p. 683). In its earliest days it bore the name not of stipulatio but of sponsio, for the reason that the inter- rogatory of the party becoming creditor was invariably formulated with the word spondes e.g., centum dare spondesl while the answer was simply spondco. There has been much speculation as to the origin of the con- tract. Modern criticism has three theories, (1) that it was the verbal remnant of the nexitm, after the business with the copper and the scales had gone into disuse ; (2) that it was evolved out of the oath at the great altar of Hercules and the appeal to Fides (supra, p. 675) ; (3) that it was imported from Latium, which it had reached from some of the Greek settlements farther south. The last view is the most probable. Verrius Flaccus, as quoted by Festus, connects it with the Greek <r7reV5i/ and ffirovS-f) ; and Gaius incidentally observes that it was said to be of Greek origin. A libation (airovorf) is frequently referred to by Homer and Herodotus as an accompaniment of treaties and other solemn covenants, a common offering by the parties to the gods which imparted sanctity to the transaction. Leist 1 is of opinion that the practice passed into Sicily and Lower Italy, but that gradually the libation and other religious features were dropped, although the word ffirovdri was retained in the sense of an engagement that bound parties just as if the old ritual had been observed, and that it travelled northward into Latium and thence to Kome under the name of sponsio, being used in the first instance in public life for the conclusion of treaties, and afterwards in private life for the con- clusion of contracts. The meaning of S2)ondes as a question by a creditor to his debtor (although latterly, we may well believe, un- known to them) thus came to be ' ' Do you engage as solemnly as if the old ceremonial were gone through between us?" There are many examples of such simplification of terms, none more familiar than when a man says "I give you my oath upon it," without either himself or the individual addressed thinking it necessary to go through the form. It is not a little remarkable that, although the idea was derived from abroad, the use of the words spondes and spondeo in contracting were, down at least to the time of Gains, confined in Rome to Roman citizens. The sponsio as a form of contract was essentially juris civilis. So at first were the later and less solemn forms of stipulation, promittisne ? promitto, dabisne ? dabo, and the like. Gaius speaks of these as juris gentium, i.e., binding even between Romans and peregrins. Such they became eventually, but not until towards the end of the republic. Yet, although juris civilis, both the sponsio and the later forms were from the first free from many of the impediments of the earlier actus legitimi. No witnesses were required to assist at them ; and they were always susceptible of quali- fication by conditions and terms. It was very long, how- ever, before parties had much latitude in their choice of language ; spondeo was so peculiarly solemn that no equi- valent could be admitted ; and even the later styles may be said to have remained stereotyped until well on in the empire. And it was the use of the words of style that made the contract. It was formal, not material ; that is to say, action lay upon the promise the words embodied, aparl from any consideration whether or not value had been given for it. In time this serious disadvantage was abated ; firs 1 Orasco-Italische Rechtsgeschichte, Jena, 1884, pp. 465-470 Upon the sponsionis vinculum internationally, see Livy, ix. 9. >y introducing in certain cases words that excluded action n presence of fraud, antecedent or subsequent, on the part f the creditor, and afterwards by praetorian exceptions, uch as a plea of " no value," or by having the contract set iside on the motion of the nominal debtor before proceed- ngs had been taken upon it by the creditor. Originally ,he stipulation was employed only in regard to engagements whose terms were in every respect definite and certain, and was enforced by the legis actio per condictionem. But in ime it came to T^e employed in engagements that were rom the first indefinite. This seems to have been due to the intervention of the praetors, and to have originated after hat per formulas. The remedy in such a case was not spoken of as a condiction but as an actio ex stipulatu. CHAPTER III. THE JUS GENTIUM AND JUS HONORARIUM. (Latter half of the Republic.) I. INFLUENCES THAT OPERATED ON THE LAW. Growth of Commerce and Influx of Foreigners. While Influx it may be admitted that commerce was beginning to take f for - root in Rome in the 5th century, yet it was not until the ei e ners - 6th that it really became of importance. The campaigns in which Rome was engaged until the end of the First Punic War absorbed all its energies. But after that time the influx of strangers, and their settlement in the city for purposes of trade, became very rapid, first Latins and other allies, and afterwards Greeks, Carthaginians, and Asiatics. For them and the regulation of their affairs the jus civile the law peculiar to Rome and its citizens was applicable only if they were members of allied states to which commercium and recuperatio were guaranteed by treaty. But multitudes were not in this favoured posi- tion ; and even those who were soon found the range of Roman modes of acquiring property and contracting obligations too narrow for their requirements. Hence a jus gentium was gradually developed 2 which very early in its history drove treaty covenants for recuperatio out of use ; its application may for a time have been limited to transactions between non-citizens or between citizens and non-citizens, but it was eventually accepted in the deal- ings of citizens inter se and became part and parcel of the jus Romanorum. Gaius and Justinian speak of it as " the common law of mankind," " the law in use among all nations " ; but the language must not be taken too literally. The Roman jus gentium was not built up by the adoption of one doctrine or institution after another that was found to be generally current elsewhere. In the earliest stages of its recognition it was "an inde- pendent international private law, which, as such, re- gulated intercourse between peregrins or between peregrins and citizens on the basis of their common libertas"; 3 during the republic it was purely empirical and free from the influence of scientific theory, but its extensions in the early empire were a creation of the jurists, a com- bination of comparative jurisprudence and rational specu- lation. To say that it was de facto in observance every- where is inaccurate ; on the contrary, it was Roman law, built up by Roman jurists, though called into existence through the necessities of intercourse with and among non-Romans. It may be a little difficult for a modern jurist to say 2 On the Roman jus gentium, see Voigt, Das jus naturale, aequum et bonum, und jus gentium d. Romer, 4 vols., Leipsic, 1856-75; Nettle- ship, in the Journal of Philology, vol. xiii. (1885), p. 169 sq. 8 Voigt, Jus nat., vol. ii. 661. He distinguishes the jus civile, jus gentium, and jus naturale as the systems which applied respectively to the citizen, the freeman, and the man.
 * he system of the legis actiones had begun to give place to