hey have been the means
also, at times, of intrenching the rules they sought to explain and of
fastening on the law doctrines of which it were better rid. Nowhere is
the reciprocal action of legal rules and philosophical theories more
strikingly manifest than in our law of contractual liability.

Law did not concern itself at first with agreements or breaches of
agreements. Its function was to keep the peace by regulating or
preventing private war and this only required it to deal with personal
violence and with disputes over the possession of property. I may
remind you of the proposition of Hippodamus in the fifth century B. C.
that there were but three subjects of lawsuits, namely, insult,
injury and homicide. If a dispute over breach of an agreement led to
an assault and a breach of the peace, tribunals might be called on to
act. But it was the assault not the breach of agreement with which
they were concerned. Controversy as to possession of property was a
fertile source of disturbance of the peace and tribunals would
entertain an action to recover possession. Agreements to compound for
a wrong are perhaps the earliest type. But the law had its eye upon
the need of composition, not upon the agreement. No basis for a law of
contracts was to be found in the power of the tribunals with respect
to injuries although our law did make assumpsit out of trespass on the
case. On the other hand recovery of property could be used for this
purpose. Hence the first legal, as distinguished from religious,
contract was worked out on the analogy of a real transaction. Before
this, however, another possibility had developed in the religiously
sanctioned promise.

Religion, the internal discipline of the organized kindred, and the
law of the state were three co-ordinate agencies of social control in
ancient society. Nor was law for a long time the chief of these nor
the one which covered the widest field. If the gods had been called to
witness or good faith had a religious sanction, the duty to keep a
promise was a matter for religion. Otherwise the mere pact or
agreement not within the cognizance of the priests was but a matter
for self-help. Hindu law shows the idea of religious duty to keep
faith in full vigor. In the Hindu system the relation between the
parties to a debt is not legal but religious and now that a law has
grown up under English influence it is said that there is a legal
obligation because there is a religious obl