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