Imatges de pÓgina


manship, rude, and their inscriptions are 1654, &c.), until very lately, when the numfrequently different from the usual cu- ber of articles styled contraband of war has rial style upon the ancient coins. From been prodigiously increased. Many belligthese circumstances, we may conclude erent powers, in the war which broke out that they did not belong to the age of the near the end of the last century, gave a parRoman emperors whose images they tial and arbitrary construction to the term; bear, but to a later one. Eckel, in his for instance, England and Russia, in 1794, masterly treatise on the contorniati, fol- who wished to prevent neutral powers lows the opinion of Morelli and Mahudel, from supplying France with corn; and who consider them to have been made the might of England enabled her to enfrom the reign of Constantine the Great force her own construction, which made to that of Valentinian. It has been ascer- such articles, for example, as salted meat tained that they were not struck by public contraband, under the pretext that it could authority; and the ancients have trans- only be intended for the garrisons and ships' mitted no account of their destination, crews. “ The catalogue of contrabands," which must, therefore, be left to conjec- says sir William Scott (now lord Stowell),

The frequent representations of “has varied very much; sometimes in race-grounds, palms, men shouting to the such a manner as to make it difficult to charioteers, and even the images of the assign the reason of the variations, owing emperors Nero and Trajan, &c., upon to particular circumstances, the history of them, make it probable that they were in- which has not accompanied the history tended for the frequenters of the games at of the decisions. The king is bound to the circus in Rome and Constantinople, watch over the safety of the state ; he for whose amusement both these emperors may, therefore, make new declarations of provided so abundantly. They were, prob- contraband, when articles come into use, ably, distributed as tickets of admission as implements of war, which were before for the spectators, by the directors of the innocent. This is not the exercise of disbands. The images of celebrated men, cretion over contraband. The law of which are found upon them, are of little nations prohibits contraband, and it is the value as portraits, because they do not Usus bellici, which, shifting from time to appear to have been executed with care. time, make the law shift with them. The CONTOUR. (See Outline.)

greatest difficulty seems to have occurred CONTRABAND, in commerce; all goods in the instance of provisions, which have and wares exported from or imported into not been held, universally, contraband, any country, against the laws of said though Vattel admits that they become country. There are, also, a number of so on certain occasions, when there is an articles termed contraband of war, which expectation of reducing the enemy by neutrals may be prevented, by one bellig- famine. In modern times, one of the erent, from carrying to another. What is to principal criteria, adopted by the courts, be considered contraband

of war depends for the decision of the question, whether upon existing treaties. These, however, any particular cargo of provisions be conhave not settled, with much precision, fiscable as contraband, is, to examine the articles embraced under this term. whether those provisions be in a rude or Indeed, before the Consolato del Mare of a manufactured state. Articles are treated the Italian mercantile states, the subjects with greater indulgence in their native of many powers were forbidden to furnish condition than when they are wrought their enemies with arms. The rule was up for the convenience of the enemy's afterwards established, that a belligerent immediate consumption.” Of late, the power might prevent neutrals from sup- practice of treating provisions as contraplying its enemy with munitions of war; band of war, when asserted at all, has hence the name contraband (contra bannum) been, undoubtedly, less strict ; a proof that was introduced. Subsequently, the term the belligerent was not entirely confident contraband was extended so as to embrace of his right to confiscate. The belligerent articles out of which munitions of war has exercised the right of preëmption only were made. All other articles, however, -a right of purchase with a reasonable even such as might be useful to the ene- compensation to the individual whose my, such as grain, wine, provisions, mon- property has been diverted, by the act of ey, &c., were allowed to pass free, a few the belligerent, from its original destinaonly being excepted, by particular trea- tion. Every state determines for itself ties (as, for instance, in the compact be- what articles shall be deemed contraband tween France and Spain, in 1604, in the in the way of trade; for the most part, on treaty between England and Holland, in the principle that nothing shall be im


suffers wrong.

ported which the country itself produces (contractus realis), in which the object and in abundance, and nothing exported but extent of the obligation are determined by that which exceeds its own consumption. the real benefit conferred. Such a con(See Smuggling.)

tract arises from delivering a thing, with CONTRACT ; an agreement or covenant or without pay; as, for instance, a debetween two or more persons, in which posit, a mutuum, or a pawn. A detereach party binds himself to do or forbear minate form of agreement, however, is not some act, and each acquires a right to always necessary. Civil intercourse alwhat the other promises. Natural law lows another kind of contracts, in which requires that if one person accepts from the simple consent of the parties gives another a service, he should render to him obligation to agreements, so that they may something in return, whether this be ex- constitute the ground of an action (conpressly agreed upon, or only implied from tractus consensuales). Such, according to the nature of the undertaking. Mutual the Roman law, is 'sale, hire (as well the promises of future good offices also are lending of a thing as services done for binding, at least by the natural law, if money), partnership, an accepted comone of the contracting parties has there- mission, and the contract for a fee farm by been induced to act; for, if he does rent (emphyteusis). But the same obliganot receive the thing stipulated for, he tory power, and this in the strictest sense,

We may go further, was allowed, also, to a verbal promise and say, that confidence in promises given in a certain solemn form, called a is so essential to the existence of social stipulation (contractus verbalis), as well as intercourse among men, that even the to a written obligation (contractus literalis, bare promise of one of the parties, when chirographarius). The form of a stipulagiven and received in earnest, that is, with tion became continually more lax, apthe idea of its being binding, is not en- proaching nearer to a simple promise, and, tirely destitute of the force of obliga- at last, amounted to nothing more than tion. In every state, it will be necessary this, that he who wanted to bind another to retain these principles, since the idea (stipulator) asked him, in a form of his of justice implanted in the human mind own choosing, “Do you promise to give should not be violated. It is the part of me such a thing ?” and the other, who legislation to provide for special cases, to was to be bound, answered, “ I promise establish certain forms, and to fix, accord- it.” It is obvious that, in this way, every ing to rules founded upon experience, the simple promise (pactum) could be made effects of each promise ; also to withdraw actionable, and that the alteration, in modfrom certain contracts their natural obli- ern times, in the law of some parts of Eugation, or to determine this in others, in rope, which admits of an action upon which it is uncertain according to natural every compact, amounts, in fact, only to law. Such has been the course of the this, that the form of a stipulation has Roman law, which, by its consistency and become even more lax, so that there is justice in regard to contracts, has obtained, no longer any necessity for the claimant on the continent of Europe, almost uni- (promissarius) to commence with his quesversal authority. In that law, at an early tion, but the compact can as well begin period, a contract (contractus), in the with the declaration of the party under proper sense of the word, was an agree- obligation (promissor). These forms of ment binding on both parties. It was contracts are, in their essential parts, setrequired to be in a determinate form; and tled; and the legal relation, together with there was an equally determinate mode the action arising from it, has a fixed name of impeaching it. A contract was distin- (contractus nominati). But other relations, guished from a simple pactor promise (pac- also, as exchanges of things and services, tum); and it was a fundamental doctrine, service for service, gift for gift, gift for that a simple pact (pactum) would not service, service for gift (do ut des, facio ut entitle one to maintain a legal action, but facias, do ut facias, facio ut des)

, gave rise merely to raise an objection in defence. to rights and obligations, but in such diThe essential character of contracts in the versified ways, that an appropriate form stricter sense, is founded on the circum- of action could be framed only from the stance that such a legal relation is neces- statement of each particular case (actio in sary for the most simple social inter- factum prescriptis verbis); and there were, course, and imposes, according to its na- accordingly, no technical terms adapted ture, certain duties. The most simple to such variously combined relations. of these relations arise from a positive act, Hence arose the contractus innominati, as the transfer of a thing to be returned which were considered as real contracts so far only that the actual performance prodigals), or because the contract was of one party entitled him to an action; and, founded on an error (an innocent error on even in this case, there was not an abso- the side of the party making the mistake, lute obligation on the other party to the or one occasioned by the deceit of the performance of his part of the contract ; other party), or when the engagement was but, in most cases, simply the duty of extorted by force and fear, there can be restoring what had been received. But no valid contract. To contracts may also the modern law creates here (though not be added conditions, which either delay or without dispute) a perfect duty to perform dissolve them, and also precise determinathe very thing promised. Finally, the tions of time, place and object (modus), Roman law attributed the effect of action- which coincide, at times, with the condiable obligations even to some partial prom- tion. A contract must be possible and ises and agreements (pacta); not only to legal, else it is without force. No one can those which were added as appendices to be obliged to undertake what is impossible, other real contracts (pacta adjecta), but or decidedly immoral (causa turpis). Acalso to some of a different kind. These cording to the Roman law, it is a matter were either declared obligatory by a formal of dispute, whether an obligation to do law, or were admitted as grounds of ac- something or to leave something undone tion by the pretor (pacta legitima and pre- gives a right to compel a specific

performtoria). Most of the technical designations ance, or whether it gives merely a claim of these are indeed new, yet the ancients to indemnification. The English and had several, as, for instance, re, consensu, French laws have adopted the latter docverbis, literis, contrahitur obligatio, &c. In trine (toute obligation de faire ou de ne pas this way donations, promises of dowry, faire se résoud en dommages et intérêts). promises of interest, acknowledgments of Obligations resembling express contracts debt, &c., were made actionable. It is arise if one person does something for always implied in the idea of a contract, another, without the knowledge and desire that the real cause of its obligation is of the latter; so that the latter is bound to founded on some particular rational ob- give a recompense for what has been thus ject of the party who promises (causa civi- beneficially done for him (obligatio quasi lis), and that mere promises and agree- ex contractu). In this case, there is no conments are not binding. Even stipulations, sent existing, neither is it supposed, but which have no ground, or an unlawful the consent could not have been refused, one (nullam aut injustam causam), are or it was not necessary. Such relations, valid, indeed, with regard to their form, resembling express contracts, arise in cases but are open to the objection of intrinsic of guardianship, between guardian and groundlessness, except when they are do- ward, by the receipt of money for a nonnations. With these views were also existing debt by mistake, the amount of connected certain divisions of these legal which ought to be restored; so by a relations, and of the actions arising from beneficial performance of some business them, according to which, in some cases, for another, without any actual commis the object of the obligation was strictly sion from him, where the circumstances enforced (actiones stricti juris); but, in raise a presumption of obligation.—Thus others, the liability could be settled only far the present article refers to the general by the decree depending upon all the cir- theory of contracts, founded either upon cumstances of the special action before natural justice or the principles of the the court (actiones bonæ fidei). Other civil and Roman law. A short account divisions refer to the relation of the parties, will now be added of the nature and oblias, in some of them, the obligation is only gation of contracts by the common law; on one side, as to return the thing re- that is, by the law which regulates this ceived in lending (contractus unilaterales); subject in the jurisprudence of England and, in others, there are reciprocal obliga- and America. The original basis of the tions, as in a sale, a partnership (contractus common law, as to contracts, was, without bilaterales); or they concern the subject doubt, the civil or Roman law; but it has of the contracts, whether relating to prop- undergone some modifications in its inerty or to some other object. To the corporation into our jurisprudence. A conditions necessary for the formation of contract may be defined, in the common a contract belongs the consent of the con- law, to be an agreement made in one tracting parties. Accordingly, when this form, between parties capable of contractis wanting, either because the parties ing, for a legal object or purpose, and were not capable of taking upon them- upon a sufficient consideration. It must selves the obligation (as minors, madmen, be an agreement or mutual bargain, volEntary, and without force or fraud; and different countries, and different times are laerefore it includes an assent given bona assigned for different acts. By the comfide. The notion of an assent includes a mon law, all persons are infants until twenphysical and moral power of assenting, ty-one years of age, and then are considered and the deliberate and free use of this as of full age for all purposes whatsoever. power. And this leads us to the consid- By the same law, the ages of males and eration of the next point, which is, that it females are different for different purposes. must be between parties capable of con- A male at fourteen is at years of discretion, tracting Upon principles of universal and may consent or disagree to marriage, law, an infant, having no discretion or may choose his guardian, and, if his dismoral power of perception, cannot make cretion is actually proved, he may make a a contract; nor can a person who is in- testament of his personal estate, though sane or mad; nor an idiot, or person labor- not of his lands; at seventeen, he may be ing under such mental debility or such an executor. A female may, at seven natural defects as prevent a just exercise years, be betrothed in marriage ; at nine, of reason.

The common law recognises is entitled to dower; at twelve, may consent these principles, and therefore it treats as or agree to marriage; at fourteen, may nullities all contracts entered into by such choose a guardian; at seventeen, may be persons; it treats in like manner con

an executrix; and at twenty-one, is of full tracts made by aged and imbecile men, age for all purposes. Both males and whose understanding has become so weak females are capable of making contracts and inefficient that they are liable to im- for necessaries during their minority; but, position, and cannot act with a reasonable in general, other contracts do not bind discretion. In respect to persons who them, unless manifestly for their benefit; enter into contracts in a state of intoxica- and, though contracts made with them tion, the old law, with a view to deter cannot be avoided by the other side, the inmen from such practices, did not hold the fants themselves, when they arrive at age, contracts void, so that the party might set may ratify them; for, as to them, they are them aside at his own suit, upon the generally voidable, and not void. A conground that no man should be allowed to tract, too, must be for some legal object or stultify himself, or allege his own vice to purpose ; that is, for something which the excuse his non-performance of a contract. law allows to be done or omitted ; for it But this principle, if it is now acted upon is a general principle, that all contracts at all, is received with great modifications; which are prohibited by law, whether and, if there be any undue advantage they involve moral turpitude, or are nieretaken of the party's situation, he will be ly prohibited by positive law, are void and relieved. The common law, indeed, seems incapable of binding the parties. A conoriginally to have disabled a party who tract, too, must have a sufficient considerwas insane from avoiding, after the recov- ation to support it. Considerations are ery of his reason, any contract made dur- either valuable in themselves, or good. A ing his insanity; partly upon the maxim good consideration is such as flows from that no man should be permitted to stultify blood or natural affection between near himself, and partly upon the supposed relations, such as parent and child. In danger, in admitting such defences, of respect to such considerations, it may be overturning deliberate and solemn con- said, that they are, as between the parties, tracts. But his legal representatives, after generally sufficient to support an executed his death, were always allowed to avoid contract; that is, a contract which has them; and when he has a guardian ap- completed its operation by a transfer of pointed, the guardian may avoid his con- the thing, such as a gift or grant,

or assigntracts in a proper suit; so that the doc- ment and delivery of a thing. But where trine, if it now exists (and it has been the rights of third persons, such as credimuch questioned), is more a matter of tors, intervene, such gifts, or grants, or form than of substance. The general assignments, are not always valid, as against inclination, in American courts, has been them. For a man must be just before he to allow the party himself to show that the is generous. But in respect to good concontract was void by reason of insanity, siderations, if the contract is not executed, &c. In respect to who shall be deemed but is a mere chose in action, such as a infants or minors, the laws of every civ- promise to pay money, or to deliver ilized country have provided a certain goods, or to give a thing, such a contract age, at which persons shall be deemed has no legal obligation, and cannot be capable of all sorts of contracts, and for all enforced in a suit, in a court of law. It is purposes sui juris. The time differs in generally deemed a voluntary promise or





naked pact. A valuable consideration is enterprises of the garrison, so that the one arising from, or on account of, money troops carrying on the siege lie between or goods received, or services done, or the lines of circumvallation and contraother contracts of reciprocal benefit, or vallation. As the line of circumvallation marriage, or a loss or injury, or forbear- must be out of the reach of cannon-shot ance of right. In all such cases, if a from the place besieged, its circumference promise is made on any of these or the is necessarily so great as to render both its like accounts, it is binding in law. If A erection and its defence difficult. It is, promises to pay ten dollars to B for goods therefore, seldom resorted to, and a corps sold to A, or money borrowed, &c., it is a of observation is generally preferred. binding contract. So if A promises to CONTUMACY. (See Contempt.) The Latpay B a debt due from C, if B will forbear, in term contumacia is used, on the contifor a certain time, to sue C, it is a binding nent of Europe, to express the offence of contract. So, if A has done an injury to non-appearance in court of a person sumB's lands or goods, and promises to indem- moned judicially. In civil causes, a pernify him, it is a good contract. In all son, in such case, may be properly made these cases, there is a mutuality of interest liable to a decision against him, for his or consideration-a quid pro quo. But a neglect in not appearing to defend bis mere moral obligation creates no contract; rights; but, by an extension of the princias if A promises to give a pauper his ple to criminal cases, persons are often clothes, or to supply him with necessaries. sentenced, in their absence, to punishment But though, in general, a contract is not in contumaciam, as it is called, particularly binding, unless made upon a valuable con- those who are charged with political sideration, there are certain forms in the offences, who can expect little justice uncommon law, as there are in the civil law, der despotic governments.

Such senby which a party may bind himself with- tences are manifestly unjust, since an inout such consideration. If, therefore, A nocent person ought not to suffer punishenter into a written contract, under his ment, even if he courts it, and neglects the seal, with B, to pay him a sum of money, means of defence. Sentences in contumaor do any other act, there the common ciam, in criminal offences, therefore, are law considers the deed of such high solem- generally set aside, if the accused person nity, that it will hold it binding. It deems appears and submits to trial. During the it as importing a valuable consideration, late political persecutions in Prussia, Ausor rather will not suffer the contrary to be tria, Italy, Spain and France, a great numproved, and acts upon the solemnity of ber of sentences in contumaciam have taken the instrument as, of itself, of paramount place, and even sentences of death have obligation. There are certain contracts been passed in this way. which the common law requires to be Conty, or Conti. (See Bourbon.) done in a particular mode to give them CONVENTICLE ; a private assembly, or validity, and therefore another requisite is, meeting, for the exercise of religion. The that the contract must be in due form. name was at first given as an appellation There are certain things, which can be of reproach, to the religious assemblies of conveyed or transferred only by some Wickliffe, in the reigns of Edward III written instrument or deed, such as incor- and Richard II, and is now applied to poreal hereditaments, as rights of ways, illegal meetings of nonconformists. There easements, &c.; and, generally speaking, were several statutes made, in former lands can now be granted only by deed. reigns, for the suppression of conventicles; There are, also, many cases specially pro- but, by 1 William and Mary, it is ordered vided for by statutes, in which contracts that dissenters may assemble for the perare not binding, unless reduced to writing, formance of religious worship, provided and signed by the party or his agent. their doors be not locked, barred or boltAmong these are contracts for the debts ed. Conventicle, in strict propriety, deof another, contracts respecting lands, and notes an unlawful assembly, and cannot, contracts respecting goods beyond a cer- therefore, be justly applied to the legal tain value. Indeed, many of the regulations, assembling of persons in places of worhere referred to as part of the common law, ship, certified or licensed according to the are, in the different states of the American requisitions of law. In the U. States, the union, variously modified by the local juris- word has no application, and is little used. prudence, and, principally, by statutes. CONVENTION (from the Latin); a meet

CONTRAVALLATION; a line formed in ing. The word, in a political sense, is the same manner as the line of circumval- generally used for a meeting of delegates lation, to defend the besiegers against the convened for a special purpose. Thus it

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