an oath, did not create any civil
obligation, unless it was confirmed by the legal form of a stipulation.
Whatever might be the etymology of the Latin word, it conveyed the idea
of a firm and irrevocable contract, which was always expressed in the
mode of a question and answer. Do you promise to pay me one hundred
pieces of gold? was the solemn interrogation of Seius. I do promise, was
the reply of Sempronius. The friends of Sempronius, who answered for
his ability and inclination, might be separately sued at the option of
Seius; and the benefit of partition, or order of reciprocal actions,
insensibly deviated from the strict theory of stipulation. The most
cautious and deliberate consent was justly required to sustain the
validity of a gratuitous promise; and the citizen who might have
obtained a legal security, incurred the suspicion of fraud, and paid the
forfeit of his neglect. But the ingenuity of the civilians successfully
labored to convert simple engagements into the form of solemn
stipulations. The praetors, as the guardians of social faith, admitted
every rational evidence of a voluntary and deliberate act, which in
their tribunal produced an equitable obligation, and for which they gave
an action and a remedy. [160]

[Footnote 159: How much is the cool, rational evidence of Polybius (l.
vi. p. 693, l. xxxi. p. 1459, 1460) superior to vague, indiscriminate
applause--omnium maxime et praecipue fidem coluit, (A. Gellius, xx. l.)]

[Footnote 160: The Jus Praetorium de Pactis et Transactionibus is a
separate and satisfactory treatise of Gerard Noodt, (Opp. tom. i. p.
483--564.) And I will here observe, that the universities of Holland
and Brandenburg, in the beginning of the present century, appear to have
studied the civil law on the most just and liberal principles. * Note:
Simple agreements (pacta) formed as valid an obligation as a solemn
contract. Only an action, or the right to a direct judicial prosecution,
was not permitted in every case of compact. In all other respects, the
judge was bound to maintain an agreement made by pactum. The stipulation
was a form common to every kind of agreement, by which the right of
action was given to this.--W.]

2. The obligations of the second class, as they were contracted by the
delivery of a thing, are marked by the civilians with the epithet of
real. [161] A grateful return is due to the author of a benefit; and
whoever is intrusted with the property of another, ha