Latin
Ancient Law
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.409
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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 vigor, 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, crystallized 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."