If we insist on reading the history
of morality as reflected in jurisprudence, by turning our eyes not on
the law of Contract but on the law of Crime, we must be careful that
we read it aright. The only form of dishonesty treated of in the most
ancient Roman law is Theft. At the moment at which I write, the
newest chapter in the English criminal law is one which attempts to
prescribe punishment for the frauds of Trustees. The proper inference
from this contrast is not that the primitive Romans practised a higher
morality than ourselves. We should rather say that, in the interval
between their days and ours, morality has advanced from a very rude to
a highly refined conception--from viewing the rights of property as
exclusively sacred, to looking upon the rights growing out of the mere
unilateral reposal of confidence as entitled to the protection of the
penal law.

The definite theories of jurists are scarcely nearer the truth in this
point than the opinions of the multitude. To begin with the views of
the Roman lawyers, we find them inconsistent with the true history of
moral and legal progress. One class of contracts, in which the
plighted faith of the contracting parties was the only material
ingredient, they specifically denominated Contracts _juris gentium_,
and though these contracts were undoubtedly the latest born into the
Roman system, the expression employed implies, if a definite meaning
be extracted from it, that they were more ancient than certain other
forms of engagement treated of in Roman law, in which the neglect of a
mere technical formality was as fatal to the obligation as
misunderstanding or deceit. But then the antiquity to which they were
referred was vague, shadowy, and only capable of being understood
through the Present; nor was it until the language of the Roman
lawyers became the language of an age which had lost the key to their
mode of thought that a "Contract of the Law of Nations" came to be
distinctly looked upon as a Contract known to man in a State of
Nature. Rousseau adopted both the juridical and the popular error. In
the Dissertation on the effects of Art and Science upon Morals, the
first of his works which attracted attention and the one in which he
states most unreservedly the opinions which made him the founder of a
sect, the veracity and good faith attributed to the ancient Persians
are repeatedly pointed out as traits of primitive innocence which have
been gradually oblitera