by instalments, was the nearest approach to a continuing contract,
as we now understand the term, which the experience of
Germanic antiquity could furnish. It is also probable that the
performance of such undertakings, as it concerned the general
peace, was at an early time regarded as material to the commonweal;
and that these covenants of peace, rather than the
rudimentary selling and bartering of their day, first caused our
Germanic ancestors to realize the importance of putting some
promises at any rate under public sanction. We have not now
to attempt any reconstruction of archaic judgment and justice,
or the lack of either, at any period of the darkness and twilight
which precede the history of the middle ages. But the history
of the law, and even the present form of much law still common
to almost all the English-speaking world, can be understood
only when we bear in mind that our forefathers did not start
from any general conception of the state’s duty to enforce
private agreements, but, on the contrary, the state’s powers and
functions in this regard were extended gradually, unsystematically,
and by shifts and devices of ingenious suitors and counsel,
aided by judges, rather than by any direct provisions of princes
and rulers. Money debts, it is true, were recoverable from an
early time. But this was not because the debtor had promised
to repay the loan; it was because the money was deemed still to
belong to the creditor, as if the identical coins were merely in
the debtor’s custody. The creditor sued to recover money, for
centuries after the Norman Conquest, in exactly the same form
which he would have used to demand possession of land; the
action of debt closely resembled the “real actions,” and, like
them, might be finally determined by a judicial combat; and
down to Blackstone’s time the creditor was said to have a
property in the debt—property which the debtor had “granted”
him. Giving credit, in this way of thinking, is not reliance on
the right to call hereafter for an act, the payment of so much
current money or its equivalent, to be performed by the debtor,
but merely suspension of the immediate right to possess one’s
own particular money, as the owner of a house let for a term
suspends his right to occupy it. This was no road to the modern
doctrine of contract, and the passage had to be made another way.
In fact the old action of debt covered part of the ground of contract only by accident. It was really an action to recover any property that was not land; for the remedy of a dispossessed owner of chattels, afterwards known as detinue, was only a slightly varying form of it. Action for debt. If the property claimed was a certain sum of money, it might be due because the defendant had received money on loan, or because he had received goods of which the agreed price remained unpaid; or, in later times at any rate, because he had become liable in some way by judgment, statute or other authority of law, to pay a fine or fixed penalty to the plaintiff. Here the person recovering might be as considerable as the lord of a manor, or as mean as a “common informer”; the principle was the same. In every case outside this last class, that is to say, whenever there was a debt in the popular sense of the word, it had to be shown that the defendant had actually received the money or goods; this value received came to be called quid pro quo—a term unknown, to all appearance, out of England. Nevertheless the foundation of the plaintiff’s right was not bargain or promise, but the unjust detention by the defendant of the plaintiff’s money or goods.
We are not concerned here to trace the change from the ancient method of proof—oath backed by “good suit,” i.e. the oaths of an adequate number of friends and neighbours—through the earlier form of jury trial, in which the jury were supposed to know the truth of Modes of proof. their own knowledge, to the modern establishment of facts by testimony brought before a jury who are bound to give their verdict according to the evidence. But there was one mode of proof which, after the Norman Conquest, made a material addition to the substantive law. This was the proof by writing, which means writing authenticated by seal. Proof by writing was admitted under Roman influence, but, once admitted, it acquired the character of being conclusive which belonged to all proof in early Germanic procedure. Oath, ordeal and battle were all final in their results. When the process was started there was no room for discussion. So the sealed writing was final too, and a man could not deny his own deed. We still say that he cannot, but with modern refinements. Thus the deed, being allowed as a solemn and probative document, furnished a means by which a man could bind himself, or rather effectually declare himself bound, to anything not positively forbidden by law. Whoever could afford parchment and the services of a clerk might have the benefit of a “formal contract” in the Roman sense of the term. At this day the form of deed called a bond or “obligation” is, as it stands settled after various experiments, extremely artificial; but it is essentially a solemn admission of liability, though its conclusive stringency has been relaxed by modern legislation and practice in the interest of substantial justice. By this means the performance of all sorts of undertakings, pecuniary and otherwise, could be and was legally secured. Bonds were well known in the 13th century, and from the 14th century onwards were freely used for commercial and other purposes; as for certain limited purposes they still are. The “covenant” of modern draftsmen is a direct promise made by deed; it occurs mainly as incident to conveyances of land. The medieval “covenant,” conventio, was, when we first hear of it, practically equivalent to a lease, and never became a common instrument of miscellaneous contracting, though the old books recognize the possibility of turning it to various uses of which there are examples; nor had it any sensible influence on the later development of the law. On the whole, in the old common law one could do a great deal by deed, but very little without deed. The minor bargains of daily life, so far as they involved mutual credit, were left to the jurisdiction of inferior courts, of the Law Merchant, and—last, not least—of the Church.
Popular custom, in all European countries, recognized simpler ways of pledging faith than parchment and seal. A handshake was enough to bind a bargain. Whatever secular law might say, the Church said it was an open sin to break plighted faith; a matter, therefore, for spiritual Fidel laesio. correction, in other words, for compulsion exercised on the defaulter by the bishop’s or the archdeacon’s court, armed with the power of excommunication. In this way the ecclesiastical courts acquired much business which was, in fact, as secular as that of a modern county court, with the incident profits. Medieval courts lived by the suitors’ fees. What were the king’s judges to do? However high they put their claims in the course of the rivalry between Church and Crown, they could not effectually prohibit the bishop or his official from dealing with matters for which the king’s court provided no remedy. Continental jurists had seen their way, starting from the Roman system as it was left by Justinian, to reduce its formalities to a vanishing quantity, and expand their jurisdiction to the full breadth of current usage. English judges could not do this in the 15th century, if they could ever have done so. Nor would simplification of the requisites of a deed, such as has now been introduced in many jurisdictions, have been of much use at a time when only a minority even of well-to-do laymen could write with any facility.
There was no principle and no form of action in English law which recognized any general duty of keeping promises. But could not breach of faith by which a party had suffered be treated as some kind of legal wrong? There was a known action of trespass and a known action of deceit, this last of a special kind, mostly for what would now be called abuse of the process of the court; but in the later middle ages it was an admitted remedy for giving a false warranty on a sale of goods. Also there was room for actions “on the case,” on facts analogous to those covered by the old writs, though not precisely within their terms. If the king’s judges were to capture this important branch of business from the clerical hands which threatened to engross it, the only way was to devise some new form of action on the case. There were signs, moreover, that the court of chancery would not neglect so promising a field if the common law judges left it open.
