form to arbitrary formal requirements.51 The important contract is the formal contract, the nexum or sponsio or stipulatio in Roman law, the specialty in Anglo-American law, in which the form is more than evidence, it is the very contract.52 Consequently in Roman law, until the fusion completed by Justinian's legislation, we find always two sets of institutions and of rules. There are civil acquisition and natural acquisition, civil incapacities and natural incapacities, civil servitudes and praetorian servitudes, civil obligations and natural obligations. In the same way in the AngloAmerican legal system, there are two sets of institutions, legal and equitable, and two sets of rules, legal and equitable, in every part of the private law. We say of these that equity looks to the substance and not the form, and the implication that the law, used in the sense of the older element, which grew up in the courts of common law, looks to the form is entirely in accord with the truth. In each case, the civil or the common-law rule or institution, which is formal, represents the stage of the strict law, while the natural or praetorian or equitable rule or institution, which is substantial, represents the later stage of equity or natural law. What are the reasons for this formalism of the period of strict law?

For one thing, forms prevented dispute. The form was fixed. It was known or should be known by all. Men's ideas might differ as to whether there was something novel, called a substantial right, contained in or behind the form, and if so, as to what it was. But the form allowed no scope for such disputes, and in the beginnings of a legal system, as well as in the pre-legal period, a chief end is to avoid dispute. In any age or in any place where men are inclined on slight provocation to take the righting of wrongs into their own hands, the law that hesitates is lost.53

51 Co. Lit. 214 b; Gaius, I, § 119, II, § 26.

52 Ames, Specialty Contracts and Equitable Defences, 9 HARV. L. Rev. 49.

53 Ante, note 29. Hanifa (the oracle of Mohammedan law) gives as a reason for holding certain sales void that they involve an uncertainty which "would occasion contention between the parties." Hamilton's Hedaya (Grady's ed.), 244. There is a certain value in this in modern law. "The advantage of formalism is that the form is for a legal act what the stamp is for coin. It fixes its value and effect in an authoritative and easily recognizable manner. It is often difficult to determine whether what is said amounts only to a willingness to treat about a matter or is an absolute contract, and the adoption of a form removes this difficulty." Brantly, Contracts, 36.

Secondly, the strict law arose and took form when there were few records and records were possible only in very exceptional cases. Most things had to be preserved in the memory of witnesses or of magistrates.54 Ceremonial was a stimulus to memory. Men could remember that a ceremony had taken place before them, especially one which everyone knew was the only way to produce legal results. They might or might not remember that an informal transaction had taken place in their presence; they might or might not remember its details. The details of formal transactions follow fixed lines. If one knows the kind of ceremony, the details fill themselves in with certainty. The details of informal transactions, on the other hand, vary infinitely and there is no means of knowing what they were save by remembering each detail. After records came into use, the ideas and tendencies belonging to a period of no records had become established, and formalism had a long tradition behind it.55

Third, and most important, forms were a safeguard against arbitrary action of the magistrate at a time when there was no elaborate body of substantive rules and principles to furnish standards of decision. Hence the great tenacity with which the common law has held to forms is connected with the Germanic and the Anglo-American jealousy of arbitrary magisterial action. In later periods of formal over-refinement, such as the eighteenth century, forms may sometimes come into the law for their own sake.56 But the forms of the period of strict law subserved a purely practical purpose. Jhering says of them:

"Form is the sworn enemy of caprice, the twin sister of liberty. ... Fixed forms are the school of discipline and order, and thereby

54 "It was long before the theory was forgotten that the rolls of the courts were mere aids for the memories of the justices." Pollock and Maitland, History of English Law, 1 ed., II, 667. "We are not at all sure that the justices of assize of the first half of cent. xiii usually kept rolls." Ibid., note 3. See Digby, History of the Law of Real Property, 5 ed., 147. So in the Roman law, until the reform of procedure in the later empire, even judgments were pronounced orally in the presence of the parties. Bethmann-Hollweg, Civilprozess des gemeinen Rechts, II, 624.

"They [i. e., forms] were often retained, more or less modified, simply because they had been always associated with some particular transaction." Muirhead, Historical Introduction to the Private Law of Rome, 2 ed., 144.

56 As to the formal, dilatory, artificial procedure of the eighteenth century, see my paper, Some Principles of Procedural Reform, 4 Ill. L. Rev. 388, 491.

of liberty itself. They are a bulwark against external attacks, since they will only break, not bend, and where a people has truly understood the service of freedom, it has also instinctively discovered the value of form and has felt intuitively that in its forms it did not possess and hold to something purely external, but to the palladium of its liberty." 57

Indeed the main argument of those who resist procedural reform today is that elimination of formal procedure will take away the safeguards against arbitrary judicial action.58 But relatively few forms in modern law have been devised consciously for such an end. In modern law forms are of two kinds. By far the greater number are simply survivals. Some have survived from the period of formal law. In other cases substantial rules, devised for purposes now forgotten, survive their occasion in the shape of formal requirements. The second class of forms has been devised in modern times to serve substantial modern ends. For example, seal and consideration 59 in contracts are survivals. Each centuries ago ceased to serve the purpose for which it was devised and became a formal requirement only. On the other hand the statute of frauds imposes a modern form for modern reasons, namely, to protect the social interest in security of transactions and security of acquisitions. Forms must still play an important part where the law is seeking to protect those interests. But it must be remembered that the period of strict law is a period of legal remedies. While the logical sequence is interest, right, remedy, the historical sequence is the reverse, remedy, right, interest. When remedies were known, but not rights, the only limits of the remedy were formal. The rules which make up the traditional element of a legal system often grew up with reference to quite different ends

57 Geist des römischen Rechts, II, § 45 (5 ed., 471-472). See Heusler, Institutionen des deutschen Privatrechts, § 12; Pollock and Maitland, History of English Law, 1 ed., II, 561. Also Bleckley, C. J., in Cochran v. State, 62 Ga. 731, 733.

58 See note 44, supra. Cf. Powell, Technicalities, So called, West Pub. Co.'s Docket, Jan., 1909, 6. Judge Powell argues that technicalities are "the characteristic which distinguished courts from mobs."

59 Pollock, Contracts, 7 ed., 8; Holmes, J., in Krell v. Codman, 154 Mass. 454. The reason in the case of consideration is purely historical. The requirement arose from procedural difficulties which were forgotten for centuries till historians dug them up. Ames, History of Assumpsit, 2 HARV. L. REV. 1, 53, 377; History of Parol Contracts Prior to Assumpsit, 8 HARV. L. REV. 852. If today we can find a philosophical basis, consideration, as it has grown up historically, only conforms thereto in part.

from those we now seek and before the ends we now seek had been recognized. This is true especially of formal procedural rules. Today, when interests and rights are defined and remedies exist only for securing them within the defined limits, there are better means of controlling judicial action than hard and fast formal procedure.60

The same considerations are behind the rigidity and immutability that characterize the strict law. Conscious change appears to be at war with the very idea of law, since there are no fixed rules or settled principles to dictate its course. If the law is legislative in form, as in the case of the Twelve Tables, interpretation is the most that is permitted; for the idea of formally superseding law by new law if not inconceivable in such a period, would be startling, as implying that law was something arbitrary that could be adopted or rejected at will. In part this is no doubt a survival of the idea of sacred law, which is proper to the preceding period. But chiefly it is connected with the formal character of the strict law, since, as Jhering puts it, forms will break but not bend. Hence even a customary law or usus fori in this stage is fixed and unyielding.

Individualism and the unmoral attitude of the strict law are closely connected, although the latter is also connected with the formal character of the law, regarding nothing but conformity or want of conformity to the exact letter. Examples of individualism are the insistence upon full and exact performance at all events of a duty undertaken in legal form, without allowance for accident and without mercy for the defaulter, the harsh standard of duress, regarding only imminent danger of life or limb,62 the objective standard of fraud and of duress,63 and the strict commonlaw doctrines as to contributory negligence and assumption of

61

60 See my paper, Some Principles of Procedural Reform, 4 Ill. L. Rev. 388, 491. 61 For example, the provisions of the Twelve Tables as to nexi and judgment debtors, Bruns, Fontes Iuris Romani Antiqui, 6 ed., I, 20-21; the rule of the common law that recognized and enforced a penalty or forfeiture incurred through the rising of a river which it was necessary for the debtor to pass in order to comply with the condition of an undertaking or a mortgage, or through some like mischance, Spence, History of the Equitable Jurisdiction of the Court of Chancery, I, 629.

62 Code, II, 4, 13; Blackstone, Commentaries, I, 129–131.

63 "Moreover, it is not the fear of a foolish man but that which might befall even a very firm man which we shall speak of as belonging to this edict." Digest, IV, 2, 6. Compare Blackstone, Commentaries, I, 131.

66

68

risk. Examples of the unmoral attitude of the strict law are its ignoring of trusts,64 its refusal to consider mistake, fraud or duress where one of its formal legal transactions is in question,65 its refusal to recognize payment where a formal contract is not formally released, its refusal to permit set offs,67 its refusal to give legal effect to a mere promise, however deliberate, without more, its doctrine of the independence of the two sides of a bilateral contract.69 69 The idea in each case is that a man of full age must take care of himself. There is no legal paternalism or maternalism to save him from himself. If he has made a foolish bargain he must perform his side like a man, for he has but himself to blame; if he has acted, he has done so at his own risk with a duty of keeping his eyes open, and he must abide the appointed consequences. In short he must "be a good sport" and bear his losses smiling. Hence the stock argument of the strict law for the many harsh rules it enforces is that the situation was produced by the party's own folly and he must abide it.70 But the whole point of view is that of primitive society," and, despite the eulogies which have been pronounced upon these features of the strict law as molders of strong and self-reliant character,72 it may be asserted confidently that they

64 Institutes, II, 23, § 1; Doctor and Student, Dial. II, chap. 7.

65 Gaius, IV, §§ 116, 117; Ames, Specialty Contracts and Equitable Defenses, 9 HARV. L. REV. 49.

66 Gaius, III, § 168; Doctor and Student, Dial. II, chap. 6; Replication of a Serjaunte at the Lawes of England to Certaine Pointes Alleged by a Student of the said Lawes, Hargrave, Law Tracts, 323, 324-325; Finch, Law, bk. I, chap. 3, § 7.

67 Institutes, IV, 6, § 30; Spence, History of the Equitable Jurisdiction of the Court of Chancery, I, 651.

68 Paulus, Sententiae, II, 14, § 1; Doctor and Student, Dial. II, chap. 24.

69 Langdell, Summary of the Law of Contracts, §§ 140-143. Cf. the original doctrine of the common law as to conditions in bilateral contracts: "What is the reason that mutual promises shall bear an action without performance? One's bargain is to be performed according as he makes it. If he make a bargain and rely on another's covenant or promise to have what he would have done to him, it is his own fault." Holt, C. J., in Thorp v. Thorp (1701), 12 Mod. 455.

70 Britton, bk. II, chap. 2, § 6 (86); Rich v. Aldred, 6 Mod. 216; Reeves, History of English Law, III, 453-454; Story, Equity Jurisprudence, II, § 803.

71 Tacitus tells us the Germans played dice as a serious business even staking their liberty, and that if one lost in such a case, he voluntarily went into slavery and "patiently allowed himself to be bound and sold." Germania, 24.

72 Dillon, Laws and Jurisprudence of England and America, 157; Cooley, Constitutional Limitations, 7 ed., 50; Bryce, The Influence of National Character and Historical Environment on the Development of the Common Law, Rep. Am. Bar Ass'n, XXXI, 444; Mercer, The Relationship of Law and National Spirit, Rep. Am. Bar