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The History of English Law before the Time of Edward I. Reprint of 2nd edition, with a Select Bibliography and Notes by Professor S.F. Milsom. (Indianapolis: Liberty Fund, 2010). Vol. 2.

Author: Sir Frederick Pollock
Author: Frederic William Maitland

Part of: The History of English Law before the Time of Edward I, 2 vols.

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Select bibliography and notes by Professor S. F. C. Milsom, published here as an appendix, was originally published in Cambridge University Press’s 1968 reissue of The History of English Law before the Time of Edward I. Reprinted by permission of Cambridge University Press.

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Chapter V

Contract

Late development of a law of contract.The law of contract holds anything but a conspicuous place among the institutions of English law before the Norman Conquest. In fact it is rudimentary. Many centuries must pass away before it wins that dominance which we at the present day concede to it. Even in the schemes of Hale and Blackstone it appears as a mere supplement to the law of property. The Anglo-Saxon dooms tell us but little about it; they tell us less the more carefully we examine them. For example, certain provisions which may seem at first sight to show a considerable development in this department turn out, on closer scrutiny, to have a wholly different bearing. There are many ordinances requiring men who traffic in cattle to make their purchases openly and before good witnesses.1 But they really have nothing to do with enforcing a contract of sale between the parties. Their purpose is to protect an honest buyer against possible claims by some third person alleging that the beasts were stolen from him. If the Anglo-Saxon teám was an ancestor of the later law of warranty in one line, and of rules of proof, ultimately to be hardened into rules of the law of contract, in another, the results were undesigned and indirect. Anglo-Saxon society barely knew what credit was, and had no occasion for much regulation of contracts. We find the same state of things throughout northern and western Europe. Ideas assumed as fundamental by this branch of law in modern times and so familiar to modern lawyers as apparently to need no explanation had perished in the general breaking up of the Roman system, and had to be painfully reconstructed in the middle ages. Further, it is not free from doubt (though we have no need to dwell upon it here) how far the Romans themselves had attained to truly general conceptions. In any case the Germanic races, not only of the Karolingian period, but down to a much later time, had no general notion whatever of promise or agreement as a source of civil obligation. Early Germanic law recognized, if we speak in Roman terms, only Formal and Real Contracts. It had not gone so far as to admit a Consensual Contract in any case. Sale, for example, was a Real, not a Consensual, transaction. All recent inquirers seem to concur in accepting this much as having been conclusively established.2

The Real and the Formal Contract.Beyond this there is much ground that is debatable, and we have no reason for believing that the order of events was exactly the same in all the countries of western Europe; indeed it is plain that at latest in the thirteenth century our English law was taking a course of its own. One main question is as to the derivation of the “formal contract” of old Germanic law from the “real contract.” Some “real contracts,” or transactions that we should regard as such, must appear at a very early time. Sale and exchange, it may be, are as yet only known to the law as completed transactions, which leave no outstanding duty to be enforced; no credit has been given on either side; the money was paid when the ox was delivered and the parties have never been bound to deliver or to pay. But loans there must soon be, and the borrower ought to return what is lent him. Also a gage (wed, vadium, gagium), or as we should now call it a pledge, will sometimes be given.3 Even in these cases, however, it is long before any idea of contractual obligation emerges. The lender claims not what has been promised him but what belongs to him. He does so in the case of the loan for use (commodatum); but he does so also in the case of the loan for consumption (mutuum); we have already seen how slowly these two cases are distinguished.4 Then in the case of the gage there probably was at first no outstanding duty on the side of the debtor when once the gage had been given. He had become indebted for a wergild or a bót; he handed over some thing of sufficient value to cover and more than cover the debt; the debt was satisfied; the only outstanding duty was that of the recipient of the gage, who was bound to hand it back if within due time its giver came to redeem it. But here again, if the gage was not restored, the claim for it would take the form, “You unjustly detain what is mine.”5 Again, a pledge or surety was in the beginning but an animated gage, a hostage delivered over to slavery but subject to redemption. The wed or gage, however, was capable of becoming a symbol; an object which intrinsically was of trifling value might be given and might serve to bind the contract. Among the Franks, whom we must regard as being for many purposes our ancestors in law, it took the shape of the festuca.

Fides facta.The formal contract. The formal contract.Whether this transition from the “real” to the “formal” can be accomplished without the intervention of sacral ceremonies seems doubtful. There are some who regard the festuca as a stout staff which has taken the place of a spear and is a symbol of physical power.6 Others see in it a little bit of stick on which imprecatory runes have been cut.7 It is hard to decide such questions, for, especially under the influence of a new religion, symbols lose their old meanings and are mixed up. Popular etymology confounds confusion. When a straw takes the place of a stick, this we are told is the outcome of speculations which derive the Roman stipulatio from stipula.8 Our English documents come from too late a time to throw much light upon these archaic problems. The Anglo-Saxon is constantly finding both wed and borh; but what his wed is we do not know. In later times “the rod” plays a part in the conveyance of land, and is perhaps still more often used when there is a “quit-claim,” a renunciation of rights;9 but we sometimes hear of it also when “faith” is “made.” Hengham tells us that when an essoiner promises that his principal will appear and warrant the essoin, he makes his faith upon the crier’s wand,10 and we find the free miner of the Forest of Dean making his faith upon a holly stick.11 But at any rate the Franks and Lombards in yet early times came by a binding contractual ceremony, the fides facta. At first it seems to be usually performed in court. The duty of paying wergild or other bót seems to have been that which first led to a legal process of giving credit. Where the sum due was greater (as must have often happened) than the party buying off the feud could raise forthwith, or at any rate produce in a convenient form, he was allowed to pay by instalments on giving security. Originally he must give either gages or hostages which fully secure the sum; at a later time he makes faith “with gage and pledge”; and among the Franks his gage is a festuca. He passes the festuca to the creditor who hands it to the pledge. The pledge is bound to the creditor; for a while he is still regarded as a hostage, a hostage who is at large but is bound to surrender himself if called upon to do so. He holds the debtor’s wed and this gives him power to constrain the debtor to pay the debt. Here is a general form of contract which can be used for a great variety of purposes, and the forms can be abandoned one by one or take weaker shapes. A man may make himself his own pledge by passing the festuca from the one hand to the other.12 The festuca with its runes may be rationalized into a tally stick.13 If sticks and straws will do, why not any other trifle? A glove becomes the gage of battle. Even this trifle may disappear and leave nothing save an empty hand to be grasped; but this in turn becomes indistinguishable from the distinct and very ancient form of faith-plight by the right hand which we now must mention.

The hand-grasp.In many countries of western Europe, and in other parts of the world also, we find the mutual grasp of hands (palmata, paumée, Handschlag) as a form which binds a bargain. It is possible to regard this as a relic of a more elaborate ceremony by which some material wed passed from hand to hand; but the mutuality of the hand-grip seems to make against this explanation. We think it more likely that the promisor proffered his hand in the name of himself and for the purpose of devoting himself to the god or the goddess if he broke faith. Expanded in words, the underlying idea would be of this kind: “As I here deliver myself to you by my right hand, so I deliver myself to the wrath of Fides—or of Jupiter acting by the ministry of Fides, Dius fidius—if I break faith in this thing.”14 Whether the Germans have borrowed this symbolic act from the Roman provincials and have thus taken over a Roman practice along with the Roman term fides, or whether it has an independent root in their own heathen religion, we will not dare to decide.15 However, the grasp of hands appears among them at an early time as a mode of contracting solemn, if not as yet legally binding, obligations.16 Probably we ought to keep the mutual grasp apart from another act of great legal efficacy, that of placing one’s folded hands within the hands of another in token of subjection. This act, which as the act of homage is to transform the world, appears among our English forefathers in the days of Edward the Elder.17 But at any rate the feudal, or rather the vassalic, contract is a formal contract and its very essence is fides, faith, fealty.

The Church and thefides facta.We must, however, remember that agreements sanctioned by sacral forms are not of necessity enforced by law; indeed so long as men firmly believe that the gods interfere with human affairs there may be something akin to profanity in the attempt to take the vow out of their hands and to do for them what they are quite capable of doing for themselves. But the Christian church could not leave sinners to the wrath of God; it was her duty to bring them to repentance. Her action becomes of great importance, because she is beginning to hold courts, to distribute penances according to fixed rules, to evolve law. She transmutes the fides facta and makes it her own. She was glad to find a form which was not an oath, but which, even if it did not already involve an ancient sacral element, could be regarded as a transaction directly concerning the Christian faith. She was bound to express some disapprobation of oaths, that is, of unnecessary oaths; she could not blot out the “Swear not at all” from her sacred books. True that she invented new oaths, the oath upon the relics, the oath upon the gospels. These new oaths took their place beside and then began to drive out the ancient German imprecations. This process was very slow; the heathen oaths on weapons and on rings lived on, though they now occupied a secondary place in the hierarchy of assertions; men would still swear upon a sword in Christian England.18 True also that the church would enforce oaths by penance and did not nicely distinguish between the assertory and the promissory oath. Already in the seventh century Archbishop Theodore has a graduated scheme of penances for a graduated scheme of oaths. He was not prepared to define a censure for a breach of an oath that was sworn upon the hand of a mere layman; but an oath sworn upon a priest’s hand was a different matter.19

Oath and faith.Still, as already said, the church was bound to express some disapprobation of unnecessary swearing. The clergy at all events ought to refrain from it. At times it is asserted that even in court a priest should not be compelled to swear; no more should be exacted of him than “Veritatem in Christo dico, non mentior.”20 A new and a Christian tinge is therefore given to the old contract with wed and borh. It may look like an oath; we may think that it implicitly contains all the essentials of an oath; but no relic or book or other thing is sworn upon and no express words of imprecation are used.21 A gage is given; that gage is fides; that fides is the giver’s Christianity; he pawns his hope of salvation. If, on the one hand, the wed is spiritualized and becomes incorporeal, on the other hand a man’s Christianity is “realized”; it becomes a thing, an object to be given and returned.22 An “age of faith” uses daring phrases about these matters. When a man makes a vow to God he will place his faith upon an altar and will find sureties who are to have coercive power over him.23 But more, when he makes a promise to another man, he will sometimes offer God as his surety.24 We must remember that in very old times the surety or pledge had in truth been the principal debtor, the creditor’s only debtor, while his possession of the wed gave him power over the person whose plegius he was. Hence it is that when we obtain details of the ceremony by which faith is “made” or “given” or “pledged,” we often find that the manual act takes place, not between the promisor and the promisee, but between the promisor and a third person who is sometimes expressly called a fideiussor. He is generally one whose station gives him coercive power over the promisor; he is the bishop of the diocese or the sheriff of the county. He does not accept any legal liability for the promise; but he holds the promisor’s faith in his hands and can constrain him to redeem it by ecclesiastical censure or temporal distress.25 We are far from saying that whenever faith was pledged, even in the most ancient times, three persons took part in the transaction. It may well be that sometimes the promisor put his faith directly into the hands of the promisee, and in this form the ceremony would become fused with that mutual grasp of hands which, as already said, may have had a somewhat different origin. And like a man’s religious faith, so his wordly honour can be regarded as an object that is pawned to a creditor. Of pledges of honour which have definite legal results much may be read in the German documents of the later middle ages.26 To this day we speak as though we could pledge our faith, our honour, our word, while the term borrow tells us of a time when men rarely, if ever, lent without receiving sufficient borh. Here, however, we are concerned to notice that a form of contract has been devised which the ecclesiastical tribunals may fairly claim to enforce:—a man has pawned his religion; very often, he has placed it in the hand of the bishop.27

The written document as a form.Meanwhile the written document is beginning to present itself as a validating form for transactions. To the eye of the barbarians the Roman provincials seemed to be conveying land by means of documents and to be stipulating by means of documents.28 It is broadly stated that according to the “Lex Romana” any one who contravenes or will not perform a written agreement is infamous and to be punished.29 The written document, which few have the art to manufacture, is regarded with mystical awe; it takes its place beside the festuca.30 The act of setting one’s hand to it is a stipulatio;31 it is delivered over as a symbol along with twig and turf and glove.32 For a long time, however, it is chiefly used as a means of creating or transferring rights in land by way of gift, sale, lease or gage; it is rarely used for the purpose of creating or attesting the creation of purely personal rights.33 But it has a future before it. The belief that the Romans stipulated by writing, the argument a fortiori that if men can be bound by question and answer they must be bound by their charters, will not easily be dispelled.34 The most carefully worded documents that will be sealed in the England of the thirteenth century, the bonds given to Lombard merchants, will speak of stipulation.35

English law in the twelfth century.It would be idle to inquire what stage of development these various institutions had attained in the England or the Normandy of the year 1066. The God-borh flits before us in Alfred’s laws,36 and we have other evidence that a “wedded” promise was under the sanction of the church.37 We may see the solemn contract of betrothal38 and may read of promises secured by oath and wed and borh.39 But, for example, we cannot tell in what, if any, cases a merely symbolic gage will have the effect of binding a bargain. To all appearance writing has hardly been used for any legal purpose except when land is to be conveyed or a last will is to be made. There is no sure ground earlier than Glanvill’s book. But that book reminds us that in the twelfth century two new forces are beginning to play upon the law of contract: the classical Roman law is being slowly disinterred and the canon law is taking shape. Glanvill knows a little, Bracton knows much more about both. For a moment we may glance at them, though the influence that they exercise over English law is but superficial and transient.

Medieval Roman law.In the twelfth century the revived study of Justinian’s books, though it urged men to rediscover or to construct some general law about the validity of agreements, tended also to confirm the notion that something more than a formless expression of agreement must be required if an action is to be given.40Nudum pactum non parit actionem—so much at least was clear beyond a doubt, and the glossators set themselves to describe, sometimes in picturesque phrases, those various “vestments” which will keep the pact from perishing of cold.41 The Roman formal contract, the stipulatio, might be dead past resuscitation, yet they were neither prepared to put a new ceremony in its place nor to declare that ceremonies are needless. The mere pactum in their eyes derives its name from that mutual grasp of hands (palmarum ictus) whereby men were wont to bind a bargain.42 Even in countries where “the imperial laws” had a claim to rule because they were imperial, the civilian’s doctrine of contract was too remote from traditional practice to sway the decisions of the courts, and the civilian was beginning to find in the canonist a rival who had a simpler doctrine and one less hampered by ancient history. Bracton makes a half-hearted attempt to engraft the theory of the legists upon the stock of English law. No part of his book has of late attracted more attention than the meagre chapters that he gives to contract; none is a worse specimen of his work.43 It is a scholastic exercise poorly performed. Here and there half unwillingly he lets us see some valuable truth, as when, despite Justinian and Azo, he mixes up the mutuum and the commodatum and refuses to treat sale as “consensual.” But there is no life in this part of his treatise because there is no practical experience behind it. The main lesson that we learn from it is that at the end of Henry III.’s reign our king’s court has no general doctrine of contract.44

The canon law.We have seen that ecclesiastical law gained a foot-hold within the province of contract by giving a Christian colouring to the old formal agreement, the pledge of faith. This having been accomplished, the canonists began to speak slightingly of ceremonies. The sacred texts, which teach that the Christian’s Yea or Nay should be enough, may have hastened the change, but we believe that the motive force had its origin elsewhere. The law of marriage had fallen into the canonist’s hand, and in the middle of the twelfth century, after long hesitation, he was beginning to teach that a bare interchange of words was sufficient to constitute a marriage. This doctrine was not due to any contempt for ceremonies, but to quite other causes of which we must speak elsewhere.45 Nevertheless, it could not but exercise a powerful influence outside the sphere of marriage law, and some small counterpoise to the enormous harm that it did within that sphere may be found in the effects that it produced in other quarters. If, not merely a binding contract to marry, but an indissoluble marriage can be constituted without any formalities, it would be ridiculous to demand more than consenting words in the case of other agreements. In the course of the thirteenth century the canonists were coming to this opinion, and could cite in its favour two sentences which had found a place in the Gregorian statute-book. Even the “nude pact” should be enforced, at any rate by penitential discipline.46

Evolution of a law of contract on the continent.From this point onward the process of arriving at a general law of contract was different in England and on the continent, although some curious particular coincidences may be found. Both here and elsewhere the secular courts were put on their mettle, so to speak, by the competition of the spiritual forum. In Italy, where the power of the revived Roman law was at its strongest, the development of the new doctrine, which would cast aside the elaborate learning of “vestments” and enforce the naked agreement, was to some extent checked by the difficulty of stating it in a Roman form of plausible appearance, even for the use of ecclesiastical judges, while, on the other side, the problem for the civilian was to find means of expanding or evading the classical Roman rules and of opening the door of the secular tribunal to formless agreements by practically abolishing the Roman conception of nudum pactum.47 In Germany and in northern France the old Teutonic formalism was but slowly undermined by the new principle, and in one and the same book we may find the speculative Pacta sunt servanda lying side by side with the practical demand for formalities.48 In England the Courts Christian were early in occupation of the ground and bold in magnifying their jurisdiction, and the king’s judges were rather slow to discover how profitable a field their rivals were occupying. It is not a little remarkable that Bracton, in search for principles, preferred importing the system of the glossators, which at all events preached the sterility of the naked pact, to adopting the novel and ecclesiastical doctrine. His efforts ended in a sad failure. English law went on its way uninfluenced by Italian learning, but confirmed in its belief that pacts require vestments. The problem of constructing a general law of contract was not faced until a much later day, when the common-law system of pleading was mature, and what was then sought was a new cause and form of action which could find a place within limits that were already drawn.

Influence of Roman and canon law in England.In Italy we find some jurists holding that an action de dolo will lie for damage caused by breach of an informal pact.49 This offers a striking parallel to the influence of the action of deceit in forming that English action of assumpsit which was to become by slow degrees the ordinary means of enforcing an informal contract. But the method which found most favour among the Italians was to hold that an additional express promise (pactum geminatum or duplex) was a sufficient “clothing” of the natural obligation of a nudum pactum to make it actionable. The opinion formerly current in our courts that an express promise, founded on an existing moral duty, is a sufficient cause of action in assumpsit, is not unlike this. But all this lies in the future. Gradually upon the continent the new principle that had been proclaimed by the canonists gained ground; the French lawyers of the sixteenth century, going back as humanists to the original Roman authorities, held out latest of all. From the seventeenth century onwards German writers boldly appealed to the law of nature. The modern philosophic lawyers of Germany do not seem wholly satisfied with the results.50 But, before the thirteenth century was out, both Roman and canon law had lost their power to control the development of English temporal law. The last effective words that they had spoken here were contradictory. About one point Bracton and his epitomators are clear— Nudum pactum non parit actionem; but the words sculptured on the tomb of “the English Justinian” are the canonical Pactum serva.

English law in the thirteenth century.Our task now becomes that of tracing the fortunes of three different institutions, the germs of which we have already seen, namely (1) the pledge of faith, (2) the action of debt, and (3) the action of covenant. We shall be compelled to speak chiefly of the doctrines of the king’s court. These were to be in the future the English law of contract; but we must remember that in the twelfth and even in the thirteenth century that court was not professing to administer the whole law. There were other courts for the recovery of debts, and both Glanvill and Bracton seem willing to admit that there may be many binding agreements which royal justice will not enforce or will only enforce as a matter of grace and favour.51

(1) The pledge of faith.(1) We have seen how “an interposition of faith” accomplished by some manual act could be converted into a vestment for pacts, and how this vestment was sanctified by a doctrine which saw in the faith that was pledged the pledgor’s Christianity. This interpretation brought the ceremony within the cognizance of the ecclesiastical tribunals, which in the twelfth century were seeking to enlarge their borders. The ceremony is often mentioned in deeds of that age, and it must frequently have taken that elaborate form which involved the action of three persons, the faith being deposited in the hands of some mediator or fideiussor who was often the bishop and judge ordinary, but often the sheriff of the county or the steward of a lord who kept a court.52 The letters of John of Salisbury allow us to see that in the earliest years of Henry II.’s reign the ecclesiastical tribunals, even the Roman curia, were busy over agreements made by Englishmen with pledge of faith.53 Then came the quarrel between Henry and Becket.

The church’s jurisdiction in case of broken faith.We hardly need explain, after all that we have elsewhere said, that there was no question of a war all along the line between the spiritual and the temporal power. The king never disputed that many questions belonged of right to the justice of the church, nor the bishop that many belonged to the justice of the king. But there was always a greater or less extent of border-land that might be more or less plausibly fought for. In this region the mastery was with the party which could establish the right to draw the boundary. This was as clearly perceived by Henry and Becket as by any modern theorist; and the controversy centred round the question: who in doubtful cases should decide where a cause should be tried. The Constitutions of Clarendon (1164) mark the king’s determination that his justices, not the bishops, shall be the persons to say what matters are for the royal court and what are not. The fifteenth article, which alone concerns us here, is in these terms: “Placita de debitis, quae fide interposita debentur, vel absque interpositione fidei, sint in iustitia regis.”

We cannot be certain about the precise meaning that the king’s advisers attributed to these words. Becket and his friends interpreted them to mean that the ecclesiastical tribunals were deprived of all jurisdiction of every kind over breaches of oath or breaches of faith.54 This article was among those that the pope condemned.55Struggle between ecclesiastical and temporal justice. After the murder Henry was compelled to renounce his “innovations”; but here as in other cases we are left to guess how much he conceived to be covered by that term. A few years afterwards we have Glanvill’s statement of the law.56 He admits that fidei laesio vel transgressio is a proper subject of criminal cognizance in the ecclesiastical court; but is careful to add that by statute (per assisam regni, that is, by the Constitutions of Clarendon) the “interposition of faith” must not be so used as to oust the king’s jurisdiction over the debts of the laity or their tenements. Thenceforward there were two subjects of debate. We have seen that the spiritual courts claimed a civil, that is, a non-criminal jurisdiction over all personal actions in which a clerk was defendant. We have seen how this claim was resisted and slowly abandoned;57 still there can be little doubt that during the thirteenth century clerks were often sued upon their contracts in the courts Christian.58

The writs of prohibition.But what concerns us here is the assertion of a criminal jurisdiction to be exercised in foro externo over all causes of broken oath or broken faith. Now the lay courts did not deny that this jurisdiction had a legitimate sphere. They defined that sphere by two writs of prohibition; the one forbad the ecclesiastical judges to meddle with “lay fee,” the other forbad them to meddle with chattels or debts except in matrimonial and testamentary causes.59 How wide a province was left to them is by no means clear. It is plain that a creditor who had a claim which the king’s court would enforce was not to hale his opponent before the ordinary on a charge of violated faith. That a man might sometimes wish to do this is also evident; he might thus attain his end more speedily than by an action of debt.60 In such cases a promise not to seek a prohibition, a renunciation of the privilegium fori, would not stay the issue of the writ, for no one could renounce the king’s right to protect his own jurisdiction, though the man who thus went against his own act might be sent to gaol, and a certain validity was thus conceded to those renuncia-tory clauses which are not uncommon in the charters of this age.61 But there were as yet numerous agreements which the king’s court did not profess to enforce. Might the court Christian punish a breach of these when they involved a gage of faith? We doubt it. They must in almost every case have fallen within the words of the writ of prohibition. At any rate the clergy were profoundly dissatisfied with the law administered by the royal justices, and spoke as though the spiritual forum was prohibited from punishing a breach of faith in any pecuniary matter if it were not of a testamentary or matrimonial character.62 Certainly these writs were always buzzing about the ears of the ecclesiastical judges;63 they retaliated with excommunications, and we may see Northampton laid under an interdict because its mayor enforced a prohibition.64

Circumspecte agatis.A document attributed to the year 1285, which in after days was ranked among the statutes, the Circumspecte agatis, suggests that at some time or another some concession was made in this matter by the lay power.65 This document may be described as a royal circular sent to the judges; perhaps it was issued along with a set of commissions, or sent to the judges after they had already started on their circuits. The bishop’s court is not to be interfered with in matters of spiritual discipline (pro hiis quae sunt mere spiritualia); and it is laid down as already settled that violent laying of hands upon a clerk, defamation, and (according to some, but by no means all copies) breach of faith, are good subjects of ecclesiastical jurisdiction, so long as, not the payment of money, but spiritual correction is the object of the suit. The words about breach of faith may possibly be authentic;66 but there were lawyers in the fourteenth century who protested that this document was concocted by the prelates and of no authority.67 In any case the quarrelling went on as before; no change was made in the writs of prohibition. Both parties were in their turn aggressors. In 1373 the commons in parliament complain that the courts Christian are encroaching to themselves pleas of debt even where there has been no lesion of faith,68 and it seems plain that the ecclesiastical judges did not care to inquire whether a complainant could have found a remedy in a lay court.69 On the other hand, the king’s justices would concede but a small territory to the canonists; their doctrine is that the only promises that are subjects for spiritual jurisdiction are promises which concern spiritual matters.70 That one court, if it has received no prohibition, should have a right to do what another court can prohibit it from it doing, need not surprise us: this in the middle ages is no antinomy.

The formal pledge of faith in the ecclesiastical court.Within the limits assigned to their civil or non-penal jurisdiction the English courts Christian were in all probability able and willing to enforce the doctrines of the Italian decretists, who, as already said, were slowly coming to the opinion that the “nude pact” will support an action. These limits however were not very wide, though they included testamentary and matrimonial causes and other matters “merely spiritual.” No English canonist, so far as we are aware, achieved anything for the law of contract. Outside the limits just mentioned the very most that the ecclesiastical judge could do was to punish by corporal penance a breach of promise which was also a breach of faith, and the king’s courts would not have allowed him to whittle away the requirement of “form.” To the end there must be at least a hand-shake in order to bring the case within his cognizance.71

The king’s court and the pledge of faith.One curious result of this bickering over “faith” seems to have been that already in Glanvill’s day the king’s justices had set their faces against what might otherwise have become the English formal contract. Glanvill gives us to understand that a plaintiff who claims a debt in the royal court must produce some proof other than an interposition of faith.72 In other words, the grasp of hands will not serve as a sufficient vestment for a contract. The same may be said of the gage. If a thing be given by way of gage, the creditor can keep it and can call upon the debtor to “acquit” it by paying the debt; but, if the debtor will not do this, then no worse will happen to him than the loss of the gage.73 This prevents our treating the delivery of a rod or a glove as a validating ceremony. Within a sphere marked out for it by ancient law, the symbolic wed was still used. This sphere we may call that of the “procedural contract” made in the course of litigation, the contract to appear before the court, the contract to abide by and fulfil its award. By this time justice had grown so strong that these engagements were hardly regarded as contracts; but, at least in theory, men found gage as well as pledge for their appearance in court, and when they were there they “waged” battle, or “waged” their law, or “waged” an amercement, by the delivery of a glove or some other symbol.74 In the exchequer75 and in other courts men were constantly pledging their faith (affidare) that essoins would be warranted, that pleas would be prosecuted and the like;76 but they were ceasing to think that in such cases the court’s power to punish a defaulter was given to it by agreement. We should be rash were we to assume that the local courts of the twelfth century paid no heed to these ceremonies. Blackstone has recorded how in his day men shook hands over a bargain;77 they do it still; but already in Henry II.’s reign the decisive step has been taken; common as these manual acts may be, they are not to become the formal contract of English temporal law.

(2) The action of debt.(2) We must now turn to the action of debt. But first we ought to notice that in the thirteenth century a prudent creditor was seldom compelled to bring an action for the recovery of money that he had lent. He had not trusted his debtor’s bare word nor even his written bond, but had obtained either a judgment or a recognizance before the loan was made. We see numerous actions of debt brought merely in order that they may not be defended, and we may be pretty sure that in many cases no money has been advanced until a judgment has been given for its repayment. Still more often there is upon the plea rolls what purports to be the compromise of an action of debt. The defendant confesses (cognoscit, recognoscit) that he owes a sum of money, promises to pay it upon a certain day and “grants” that, if he does not pay it, the sheriff may levy it from his lands and goods; in return the plaintiff is sometimes said to remit the damages which are supposed to be already due to him from his debto.78 Still more often the parties go into theThe recognizance. chancery or the exchequer and procure the making of an entry upon the close roll or some other roll. The borrower confesses (recognoscit) that he owes a certain sum which is to be paid upon a certain day, and grants that, if default be made, the money may be levied by the sheriff. This practice, which is of some importance in the history of the chancery, may have its origin in the fact (for fact it is) that some of its officers were money lenders on a great scale; but no doubt it has ancient roots; it is analogous to the practice of “levying fines”; indeed we ought to notice that at this period the “fine of lands” sometimes involves an agreement to pay money and one which can be enforced by summary processes. Now the recognizance is aptly called a “contract of record”; we might also call it an “execu-tory” contract, if we used this adjective in an unfamiliar sense, but one that it will bear. The recognizance is equivalent to a judgment; nothing remains to be done but execution. Within a year from the date fixed for payment, a writ of execution will issue as a matter of course on the creditor’s applying for it, unless the debtor, having discharged his duty, has procured the cancellation or “vacation” of the entry which describes the confession. The legislation of Edward I. in favour of merchants instituted a new and popular “contract of record,” the so-called “statute merchant.” This we must not examine; but already before his accession the recognizance was in common use and large sums of money were being lent upon its security.

The action of debt in Glanvill.Glanvill knows an action of debt in the king’s court.79 The original writ is a close copy of that form of the writ of right for land which is known as a Praecipe in capite. The sheriff is to bid the debtor render a hundred marks which he owes to the plaintiff “and whereof the plaintiff complains that the defendant unjustly deforces him”; if the debtor will not obey this order, then he is to be summoned before the king’s court. The creditor is being “deforced” of money just as the demandant who brings a writ of right is being “deforced” of land. There may be trial by battle in the one case as in the other. The bold crudity of archaic thought equates the repayment of an equivalent sum of money to the restitution of specific land or goods. To all appearances our ancestors could not conceive credit under any other form. The claimant of a debt asks for what is his own. After all, we may doubt whether the majority of fairly well-to-do people, even at this day, realize that what a man calls “my money in the bank” is a mere personal obligation of the banker to him.80 The gulf that we see between mutuum and commodatum is slurred over. If we would rethink the thoughts of our forefathers we must hold that the action of debt is proprietary, while at the same time we must hold, as we saw in the last chapter, that there is no action for the recovery of a chattel that would be called proprietary by a modern lawyer.81

An action of debt in the king’s court is rare.Though Glanvill gives a writ of debt and though the action of debt occasionally appears on the very earliest plea rolls,82 it long remains a rare action in the king’s court. In the case of debts any royal writ, whether it takes the form of a Praecipe or of a Iusticies,83 seems to be regarded as a luxury which the king is entitled to sell at a high price. Even in the earlier years of Henry III.’s reign the plaintiff must often promise the king a quarter or a third of all that he recovers before he will get his writ.84 That men are willing to purchase the king’s interference at this extravagant price seems to tell us that the justice of the local courts is feeble and that credit is seldom given. All the entries relating to Staffordshire cases that appear upon the rolls of the king’s court during this long reign of fifty-six years are in print; some eight actions of debt are all that we find among innumerable novel disseisins.85 Staffordshire was a poor and backward county and our series of rolls is by no means perfect; but still this is a significant fact. In the last years of the reign, however, the action was becoming much commoner; fifty-three entries on the plea roll of one term speak of it, and some of the loans to which they testify are large.86 First from the Jew, then from the Lombard, Englishmen were learning to lend money and to give credit for the price of goods.

Proprietary character of the action.We may see the action gradually losing some of its proprietary traits; we may see the notion of personal obligation slowly emerging. The offer of battle in proof of debt vanishes so early that we are unable to give any instance in which it was made; thus one link between the writ of right for land and what we might well call the writ of right for money is broken. Then the eloquent “de-forces” of Glanvill’s precedent disappears. In the king’s courts one says “detains” not “deforces”; but late in the thirteenth century the old phrase was still being used in local courts and the deforcement was even said to be a breach of the peace.87 But “debt” was falling apart from “detinue”: in other words, lawyers were beginning to feel that there are certain cases in which the word debet ought, certain in which it ought not, to be used.88 They were beginning to feel that the two forms of “loan,” the commodatum and the mutuum, are not all one, and this although the judgment in detinue gave the defendant a choice between returning the thing that he had borrowed and paying an equivalent in money.89 One ought not to say debet when there is a commodatum. But further—and this is very curious—even when there is a money loan the word debet should only be used so long as both parties to the transaction are alive; if either dies, the money may be “unlawfully detained” by the representative of the one or from the representative of the other, but there is no longer any “owing” of the money. This looks like a clumsy struggle on the part of the idea of obligation to find its proper place in the legal system.90 Centuries will pass away before it comes by its just rights. Well worthy of remark is the fate of the Roman term. It is useless for Bracton to talk of obligationes ex contractu vel quasi, ex maleficio vel quasi; an obligation, or in English a “bond,” is a document written and sealed containing a confession of a debt; in later times “contract” is the genus, “obligation” the species.91

Debts arising from sale.By far the commonest origin of an action of debt is a loan of money. But soon we begin to see the same action used for the price of goods. The contract of sale as presented by Glanvill is thoroughly Germanic.92 Scraps of Roman phraseology are brought in, only to be followed by qualification amounting to contradiction. To make a binding sale there must be either delivery of the thing, payment of the whole or part of the price, or giving of earnest.93 The specially appointed witnesses, the “transaction witnesses” of the Anglo-Saxon laws, have by this time disappeared or are fast disappearing, and we must think of them as having provided, not an alternative form or evidence of the contract, but a collateral precaution:—the man who bought cattle without their testimony was exposed to criminal charges. In substance the conditions mentioned by Glanvill are the very conditions which in the seventeenth century our Statute of Frauds will allow as alternatives in a case of sale to a note or memorandum in writing.94

Earnest.We must observe that the giving of earnest is treated as a quite different thing from part payment. Earnest, as modern German writers have shown,95 is not a partial or symbolic payment of the price, but a distinct payment for the seller’s forbearance to sell or deliver a thing to any one else. In the Statute of Frauds, “something in earnest to bind the bargain” and “part payment” are distinguished indeed, but thrown into the same clause as if the distinction had ceased to be strongly felt. In Glanvill’s time earnest was still, as it was by early Germanic law, less binding than delivery of the goods or part-payment of the price, for if the buyer did not choose to complete his bargain, he only lost the earnest he had given. The seller who had received earnest had no right to withdraw from the bargain, but Glanvill leaves it uncertain what penalty or compensation he was liable to pay. In the thirteenth century Bracton and Fleta state the rule that the defaulting seller must repay double the earnest.96 In Fleta the law merchant is said to be much more stringent, in fact prohibitory, the forfeit being five shillings for every farthing of the earnest, in other words “pound for penny.”97 It is among the merchants that the giving of earnest first loses its old character and becomes a form which binds both buyer and seller in a contract of sale. To all appearance this change was not accomplished without the intermediation of a religious idea. All over western Europe the earnest becomes known as the God’s penny or Holy Ghost’s penny (denarius Dei).98 Sometimes we find that it is to be expended in the purchase of tapers for the patron saint of the town or in works of mercy.99 Thus the contract is put under divine protection. In the law merchant as stated by Fleta we seem to see the God’s penny yet afraid, if we may so speak, to proclaim itself as what it really is, namely a sufficient vestment for a contract of sale. A few years later Edward I. took the step that remained to be taken, and by his Carta Mercatoria, in words which seem to have come from the south of Europe,100 proclaimed that among merchants the God’s penny binds the contract of sale so that neither party may resile from it.101 At a later day this new rule passed from the law merchant into the common law.102

Law of sale continued.Returning however to Glanvill’s account of sale, we must notice that in case a third person claims the object as stolen from him, the seller must be prepared to warrant the buyer’s right, or, if he refuses to do this, to be himself impleaded by the buyer, and in either case there may be a trial by battle.103 We have seen above how the old rules which set a limit to the voucher of warrantors were still being maintained; the fourth, or perhaps the third, warrantor is not allowed to vouch.104 That the ownership of the purchased goods did not pass to the buyer until they were delivered to him seems plain. We may gather from Bracton and Fleta that this was so even when the whole price had been paid.105 Unless there was some special agreement to the contrary, the risk remained with the party who was in possession of the goods.106 At the same time the question about the transfer of ownership has not as yet taken that sharp form with which we are familiar, because, as we endeavoured to show in an earlier chapter,107 it is but slowly that an owner of goods who is not also the possessor of them acquires legal remedies against thieves or trespassers who meddle with them. For this reason our law was able to reconsider this question about the effect of the contract of sale at a time when its notion of ownership had become more precise than it was in Bracton’s day.

Scope of the action of debt.Even in Edward I.’s time, whatever may have been the potential scope of the action of debt, it seems (if we may judge from the plea rolls, the Year Books and some manuscript precedents that have come to us) to have been used but rarely save for five purposes: it was used, namely, to obtain (1) money lent, (2) the price of goods sold, (3) arrears of rent due upon a lease for years, (4) money due from a surety (plegius), and (5) a debt confessed by a sealed document.108 We cannot say that any theory hemmed the action within these narrow limits. As anything that we should call a contract was not its essence, we soon find that it can be used whenever a fixed sum, “a sum certain,” is due from one man to another. Statutory penalties, forfeitures under by-laws, amercements inflicted by inferior courts, money adjudged by any court, can be recovered by it. This was never forgotten in England so long as the old system of common law pleading was retained.109 Already in 1293 the bailiff of one of the Bishop of Ely’s manors has paid a sum of money to the bishop’s steward for him to pay over to the bishop; the steward has neglected or refused to do his duty; the bailiff seeks restitution by action of debt.110 In the next year we are told that if the purchaser of land pays his money and the vendor will not enfeoff him, an action of debt will lie.111 An action of debt against his father’s executors is considered the appropriate remedy for the child who claims a legitima portio of his father’s goods.112 If however we look only at the cases in which the action is used for what modern lawyers would regard as the enforcement of a contract, and if we put aside for a while the promise under seal, we have the money loan, the sale of goods, the lease of land and the surety’s undertaking, as the four main causes for an action of debt. The action against the surety has had its own separate history; the surety has been a hostage and in later days a formal ceremony with a wed or festuca has been the foundation of the claim against him.113 In the three other cases the defendant has received something—nay, he has received some thing—from the plaintiff. To use the phrase which appears at a later day, he obviously has quid pro quo, and the quid is a material thing. We do not say that the doctrine rested here even for a moment. Probably the king’s court would have put services rendered on an equality with goods sold and delivered. The fact that we cannot give an instance of an action brought by a servant to recover his wages may well be due to the existence of local courts which were fully competent to deal with such matters. But we much doubt whether at the end of the thirteenth century the action extended beyond those cases in which the defendant had received some material thing or some service from the plaintiff.114

The doctrine ofquid pro quo.Any formulated doctrine of quid pro quo was still in the future. Therefore we are not concerned to explore the history of the generalization which in after days is expressed by that curious term. The courts are proceeding outwards from a typical debt. In its earliest stage the action is thought of as an action whereby a man “recovers” what belongs to him. It has its root in the money loan; for a very long time it is chiefly used for the recovery of money that has been lent. The case of the unpaid vendor is not—this is soon seen—essentially different from that of the lender: he has parted with property and demands a return. It enters no one’s head that a promise is the ground of this action. No pleader propounding such an action will think of beginning his count with “Whereas the defendant promised to pay”; he will begin with “Whereas the plaintiff lent or (as the case may be) sold or leased to the defendant.” In short he will mention some causa debendi and that cause will not be a promise.115 The Norman custumal which lies parallel to, but is much less romanized than, Bracton’s book, puts this very neatly:— “Ex promisso autem nemo debitor constituitur, nisi causa precesserit legitima promittendi.”116 Our English writers give us nothing so succinct as this, because unfortunately the Italian glossators have led them astray with a theory of “vestments” which will not fit the English facts; but we cannot doubt that the Norman maxim would have commanded the assent of every English pleader. No one thinks of transgressing it. If you sue in debt you must rely on loan, or sale, or some other similar transaction. At a later time, various transactions have been pronounced to be similar to loan and sale, and an attempt is made to define them by one general phrase, or, in other words, to discover the common element in the legitimae causae debendi.

Gratuitous gifts and promises in early law.That this should be found in quid pro quo is not unnatural. We may take it as a general principle of ancient German law that the courts will not undertake to uphold gratuitous gifts or to enforce gratuitous promises.117 The existence of this principle is shown by the efforts that are made to evade it. We can trace back the manufacture of what an English lawyer would call “nominal considerations” to the remotest period. In the very old Lombard laws we see that the giver of a gift always receives some valueless trifle in return, which just serves to make his gift not a gift but an exchange.118 At a much later time both in France and in England we see the baby, who as expectant heir is brought in to take part in a sale of land, getting a penny or a toy. The buyer gives the seller a coin by way of earnest, otherwise the seller’s promise would not bind him. The churches would not acquire their vast territories if they had nothing to offer in return; but they have the most “valuable” of “considerations” at their disposal. As regards the conveyance of land, the principle is concealed by feudalism, but only because it is so triumphant that a breach of it is hardly conceivable. Every alienation of land, a sale, an onerous lease in fee farm, is a “gift” but no “gift” of land is gratuitous; the donee will always become liable to render service, though it be but the service of prayers. Every fine levied in the king’s court will expressly show a quid pro quo; often a sparrow-hawk is given in return for a wide tract of land; and this is so, though here the bargain takes the solemnest of solemn forms.119 Perhaps we may doubt whether in the thirteenth century a purely gratuitous promise, though made in a sealed instrument, would have been enforced if its gratuitous character had stood openly revealed.120 We are not contending that the principle had as yet been formulated. It is long before men formulate general negations of this kind. They proceed outwards from a type such as the loan of money: they admit one causa debendi after another, until at last they have to face the task of generalization. Still we think that all along there is a strong feeling that, whatever promises the law may enforce, purely gratuitous promises are not and ought not to be enforceable.121

In the action of debt, unless the plaintiff relied on a sealed document,Proof of debt. the defendant might as a general rule wage his law: that is to say, he might undertake to deny the debt by an oath with oath-helpers.122 A wager of battle there had seldom been in such cases, and in the thirteenth century it was no longer allowed. In the earlier years of that age a defendant would sometimes meet the charge by demanding that the “suitors” who were produced by the plaintiff should be examined, and, if they failed to tell a consistent story, the action was dismissed; but the tender of “suit” was, at least in the king’s court, rapidly becoming a mere form.123 Efforts were made from time to time to place the tally, at all events if it bore writing and a seal, on an equality with the sealed charter. In cases between merchants a royal ordinance decreed that, if the defendant denied the tally, the plaintiff might prove his case by witnesses and the country in the same way as that in which the execution of a charter could be proved.124 The common law, however, allowed the defendant to meet a tally by wager of law. In mercantile cases, when a tally of acquittance was produced against a tally of debt, the defendant was allowed to make good his assertion by an oath sworn upon nine altars in nine churches.125 In the city of London the “foreigner” who could not find oath-helpers was allowed to swear away a debt by visiting the six churches that were nearest the gildhall.126 The ease with which the defendant could escape was in the end the ruin of this old action.

In the action of debt the plaintiff demands a sum of moneyDamages in debt. together with “damages” for the unjust detention. The damages claimed by the plaintiff are often very high,127 and he has a chance of getting all that he claims, for if the defendant wages, but fails to make his law, there will be no mitigation or “taxation” of the amount that the plaintiff has mentioned.128 In other cases the jurors under the control of the justices seem to be free to award what damages they please, provided that they do not give more than has been demanded. There is no usury here, for there has been no bargain that the creditor shall receive any certain sum for the use of his money, still, so far as we can see, the plaintiff gets damages though he has only proved that the debt was not paid when it was due.

Limit to the action.One boundary of the action of debt is fixed from the first and cannot be removed. The plaintiff must claim some fixed sum that is due to him. We must have a quite different action if “unliquidated” sums are to be claimed by way of damages for breach of contract.

(3) Action of covenant.(3) The writ of covenant (breve de conventione) is not mentioned by Glanvill; but it appears within a short time after the publication of his book129 and already in the early years of Henry III. it can be had “as of course,” at all events when the tenement that is in question is of small value.130 Before Henry’s death it has become a popular writ. On the roll for the Easter term for 1271 we found thirty-five actions of covenant pending.131 But the popularity of the writ is due to the fact that men are by this time commonly employing it when they want to convey land by way of fine.132 The great majority of actions of covenant are brought merely in order that they may be compromised. We doubt whether any principle was involved in the choice; but may infer that the procedure instituted by this writ was cheap and expeditious for those who wished to get to their final concord. In all the oldest specimens that we have seen, whether on the plea rolls or in the registers, the subject matter of the conventio is land or one of those incorporeal things that are likened to land.

Covenants and leases.The specific want that this action has come to meet is that which is occasioned by the growing practice of letting lands for terms of years. The placitum conventionis is almost always what we should call an action on a lease. We have seen above how an unsuccessful attempt was made to treat the termor as having no rights in, no possession or seisin of, the land, but merely the benefit of an agreement. This attempt, as already said, we are inclined to regard as an outcome of misdirected Romanism; at any rate it failed. The termor, however, is protected by the writ of covenant and for a while this is his only protection; the action therefore becomes popular as leases for terms of years become common.133 At a little later time it finds another employment. Family settlements are being made by way of feoffment and refeoffment; the settlor takes a covenant for refeoffment from his feoffee. Again, there is some evidence that in the course of the thirteenth century attempts were made to establish a kind of qualified tenure in villeinage by express agreements.134 In all these cases, however, the writ mentions a certain piece of land, an advowson or the like, as the subject matter of the conventio and the judgment will often award this subject matter to the successful plaintiff.135 As may well be supposed, in days when the typical conventio was a lease of land for a term of years and the lessee was gaining a “real” right in the land, men were not very certain that other conventiones concerning land would not give real rights, that a covenant to enfeoff, or a covenant not to alienate might not bind the land and hold good against a subsequent feoffee.136 However, in 1284 the Statutum Walliae made it clear that a feoffment cannot thus be set aside in favour of an earlier conventio, and specified this case as one of those in which the freehold cannot be recovered and judgment must be for damages.137

Scope of the action.The same great statute assures us that in an action of covenant sometimes movables, sometimes immovables are demanded, also that the enforceable covenants are infinite in number so that no list of them can be made;138 and, though we believe that the covenants which had as yet been enforced by the king’s court had for the more part belonged to a very few classes, still it is plain that the writ was flexible and that no one was prepared to set strict limits to its scope. Bracton speaks as though the royal justices had a free hand in the enforcement of “private conventions” and might in this particular do more than they were actually doing.139 We can produce a few examples in which the plaintiff is not claiming land or an incorporeal thing such as a rent or an advowson.140 However, in the Statute of Wales we have a sufficient declaration that, as regards the subject matter of the agreements that can be enforced by this action, no boundaries have been or can be drawn. One limitation however soon becomes apparent, and is curious. The action of covenant cannot be employed for the recovery of a debt, even though the existence of the debt is attested by a sealed instrument. A debt cannot have its origin in a promise or a conventio; it must arise from some transaction such as loan, or sale or the like; and the law is economical; the fact that a man has one action is a reason for not giving him another.141

The covenant must be written.But what of form? Before the end of Edward I.’s reign the king’s court had established the rule that the only conventio that can be enforced by action is one that is expressed in a written document sealed “by the party to be charged therewith.” Thenceforward the word conventio and the French and English covenant, at least in the mouths of Westminster lawyers, imply or even denote a sealed document. There had been some hesitation; nor is this to be wondered at. Pacta sunt servanda was in the air; Pactum serva was Edward’s chosen motto. The most that the Romanist could do for the written agreement was to place it alongside the stipulatio or to say that it was a stipulatio, and he knew that according to the latest doctrine of mature Roman law a stipulatio could be made by a simple question and answer without the use of any magical or sacramental phrases. Again, the king’s court had refused to attribute any special efficacy to what we may call the old Germanic forms, the symbolic wed and the grasp of hands; these had fallen under the patronage of the rival tribunals of the church. There was a special reason for hesitation and confusion, for it was chiefly for the protection of lessees of land that the writ of covenant had come into being; for some time it was the termor’s only writ, and no one had yet said or would ever say that the “term of years” could not (apart from statute) be created by word of mouth and delivery of possession. To require a charter for a lease would have been to require more than was demanded where there was to be a feoffment in fee simple. And so for a while we seem to see some unwritten agreements enforced as conventiones, and, even when it is plain that the unwritten agreement will bear no action, men think that it will bear an “exception”: in other words, that it can be set up by way of defence. What is more, the lawyers do not think that they are laying down a rule of substantive law about the form that a covenant must take; they are talking about evidence. The man who relies upon a covenant must produce in proof some “specialty” (especialté, aliquid speciale); the production of “suit” is not enough. Thenceforward, however, it is only a short step to holding as a matter of law that a “deed”—and by a deed (fet, factum) men are beginning to mean a sealed piece of parchment— has an operative force of its own which intentions expressed, never so plainly, in other ways have not. The sealing and delivering of the parchment is the contractual act. Further, what is done by “deed” can only be undone by “deed.”142

The action of account.One other action remains to be mentioned, namely, the action of account. Here, again, the writ was modelled upon the proprietary writs. The defendant must “justly and without delay render to the plaintiff” something, namely, an account for the time during which he was the plaintiff’s bailiff and receiver of the plaintiff’s money. Even in the modern theory of our law “the obligation to render an account is not founded upon contract, but is created by law independently of contract.”143 The earliest instance of this action known to us dates from 1232:144 the writ seems to come upon the register late in Henry III.’s reign,145 and much of its efficacy in later times was due to the statutes of 1267 and 1285.146 These statutes sanctioned a procedure against accountants which was in that age a procedure of exceptional rigour. We gather that the accountants in question were for the more part “bailiffs” in the somewhat narrow sense that this word commonly bore, manorial bailiffs. In Edward I.’s day the action was being used in a few other cases; it had been given by statute against the guardian in socage,147 and we find that it can be used among traders who have joined in a commercial adventure: the trade of the Italian bankers was being carried on by large “societies” and Englishmen were beginning to learn a little about partnership.148 Throughout the fourteenth and fifteenth centuries the action was frequent enough, as the Year Books and Abridgements show. In after times the more powerful and convenient jurisdiction of equity superseded the process of account at common law, though the action lingered on in one application, as a remedy between tenants in common, late enough to furnish one or two modern examples. But on the whole it did very little for our law of contract.

Covenant in the local courts.We have been speaking of actions in the king’s court; but we imagine that in the thirteenth century the local courts were still very free to go their own way about such matters as contract. There is evidence that some of them enforced by action of “covenant” agreements that were not in writing.149 It is possible that these agreements had been fastened by a grasp of hands; as yet we know but too little of what was done by the municipal and manorial tribunals. Pacta sunt servanda was, as we have said, already in the air. The scheme of actions offered by the king’s court had become rigid just too soon, and in later centuries the Westminster lawyers were put to strange and tortuous devices in their attempt to develop a comprehensive law of contract. They had to invent a new action for the enforcement of unwritten agreements, and its starting point was the semi-criminal action of trespass. Of their bold and ingenious inventions we must not here speak. At present we see them equipped with the actions of debt, covenant and account; each has its own narrow sphere and many an agreement though, as we should say, made for valuable consideration, finds no remedy in the king’s court.

The sealed document.The English formal contract, therefore, is no product of ancient folk-law. The “act and deed” that is chosen is one that in the past has been possible only to men of the highest rank. The use of the seal comes to us from the court of Frankish kings. At the date of the Conquest the Norman duke has a seal and his cousin the late king of England had a seal; but in all probability very few of William’s followers, only the counts and bishops, have seals.150 Even in the chancery of our Norman kings the apposition of a seal had to struggle with older methods of perfecting a charter. A seal sufficed for writs, but a solemn “land-book” would as of old bear the crosses of the king and the attesting magnates, ink crosses which they had drawn, or at least touched, with their own hands.151 This old ceremony did not utterly disappear before Stephen’s day; but men were beginning to look for a seal as an essential part of a charter. The unsealed “books” of the Anglo-Saxon kings are called in question if they have not been confirmed by a sealed document.152 Gilbert de Balliol called in question the charters granted by his ancestors to Battle Abbey; Richard de Lucy the justiciar replied that it was not the fashion of old time that every petty knightling should have a seal.153 For some time to come we meet with cases in which a man who had land to give had no seal of his own and delivered a charter which had passed under the seal of the sheriff or of some nobleman. In the France of Bracton’s day the privilege of using a seal was confined to “gentixhomes”; a man of lower degree would execute his bond by carrying it before his lord and procuring the apposition of his lord’s seal.154 But in England, as we have often seen, the law for the great became the law for all, and before the end of the thirteenth century the free and lawful man usually had a seal. It is commonly assumed that jurors will as a matter of course have seals. We must not think of the act of sealing as a mere formality; the impressed wax was treated as a valuable piece of evidence. If a man denied a charter that was produced against him and the witnesses named in it were dead, the seal on it would be compared with the seals on instruments the genuineness of which he admitted, and thus he might be convicted of a false plea.155 “Nient mon fet” was a very common defence, and forgery, even the forgery of royal writs and papal bulls, was by no means rare.

Growth of written documents.In the twelfth century charters of feoffment had become common; they sometimes contained clauses of warranty. In the next century leases for years and documents which dealt with easements, with rights of pasturage, with tithes and the like, were not unfrequent; they sometimes contained penal clauses which were destined to create money debts.156 Occasionally there was an agreement for a penal sum which was to go to the king or to the sheriff, to the fabric fund of Westminster abbey or to the relief of the Holy Land.157 In John’s reign the Earl of Salisbury, becoming surety for the good behaviour of Peter de Maulay, declares that, if Peter offends, all the earl’s hawks shall belong to the king; and so Gilbert Fitz Remfrey invokes perpetual disherison on himself should he adhere to Magna Carta which the pope has quashed.158 But documents of a purely obligatory character were still rare. They seem to come hither with the Italian bankers. They generally took the formThe single bond. of the “single bond”;159 the bond with a clause of defeasance seems to be of later date. The creditor confesses himself to be bound (se teneri) in respect of money lent, and obliges himself and all his goods, movable and immovable, for its repayment on a fixed day or after the lapse of so many days from the presentation of the bond. Sometimes we may see (at all events when the lender is an Italian) a distinct promise to pay interest (interesse);160 more often there is a promise to pay all damages and costs which the creditor shall incur, and this is sometimes coupled with a promise that the creditor’s sworn or unsworn assertion shall fix their amount.161 When a rate of interest was fixed, it was high. With the pope’s approval, Henry III. borrowed 540 marks from Florentine merchants, and, if repayment were not made after six months or thereabouts, the debt was to bear interest at sixty per cent.162 Often the debtor had to renounce in advance every possible “exception” that civil or canon or customary law might give him. The cautious Lombard meant to have an instrument that would be available in every court, English or foreign. But even an English lawyer might think it well to protect himself by such phrases. Thus when Mr. Justice Roubury lent the Bishop of Durham £200, the bishop submitted himself to every sort of jurisdiction and renounced every sort of exception.163 Often the debtor is bound to pay the money either to the creditor or to any attorney or mandatory of his who shall produce the bond.

Mercantile documents.The clause which promises payment to the creditor “or his attorney” is of great interest. Ancient German law, like ancient Roman law, sees great difficulties in the way of an assignment of a debt or other benefit of a contract.164 The assignee who sued the debtor would be met by the plea “I never bound myself to pay money to you.” But further, men do not see how there can be a transfer of a right unless that right is embodied in some corporeal thing. The history of the “incorporeal things” has shown us this; they are not completely transferred until the transferee has obtained seisin, has turned his beasts onto the pasture, presented a clerk to the church or hanged a thief upon the gallows.165 A covenant or a warranty of title may be so bound up with land that the assignee of the land will be able to sue the covenantor or warrantor. At an early time we may see the assignee of a lease bringing an action of covenant against the lessor.166 But, even in the region of warranty, we find that much depends on the use of the word assigns; the feoffor will only be bound to warrant the feoffee’s assigns if he has expressly promised to warrant them.167

Assignment of debts.In the case, however, of the mere debt there is nothing that can be pictured as a transfer of a thing; there can be no seisin or change of seisin. In course of time a way of escape was found in the appointment of an attorney. In the thirteenth century men often appear in the king’s court by attorney; but they do not even yet enjoy, unless by virtue of some special favour purchased from the king, any right of appointing attorneys to conduct prospective litigation; when an action has been begun, then and not until then, an attorney can be appointed.168 The idea of representation is new;169 it has spread outwards from a king who has so many affairs that he cannot conduct them in person. However, it has by this time spread so far that the debtor who in express written words promises to pay money either to the creditor or to the mandatory (nuntius) or attorney of the creditor is bound by his promise; he has himself given the creditor power to appoint a representative for the exaction of the debt. Often in the bonds that are before us the debtor promises to pay the creditor or “his certain attorney producing these letters.” The attorney will have to produce the bond and also evidence, probably in the form of a “power of attorney,” that he is the attorney of the original creditor.170 It seems probable that the process which in the end enables men to transfer mere personal rights has taken advantage, if we may so speak, of the appearance of the contract in a material form, the form of a document. That document, is it not itself the bond, the obligation? If so, a bond can be transferred. For a very long time past the Italians have been slowly elaborating a law of negotiable paper or negotiable parchment; they have learnt that they can make a binding promise in favour of any one who produces the letter in which the obligation is embodied. Englishmen are not yet doing this, but under Italian teaching they are already promising to pay the Florentine or Sienese capitalist or any attorney of his who produces the bond.171

Agency in contract.The whole law of agency is yet in its infancy. The king indeed ever since John’s day has been issuing letters of credit empowering his agents to borrow money and to promise repayment in his name.172 A great prelate will sometimes do the like.173 It is by this time admitted that a man by his deed can appoint another to do many acts in his name, though he cannot appoint an attorney to appear for him in court until litigation has been begun.174 Attorneys were appointed to deliver and to receive seisin.175 Among the clergy the idea of procuration was striking root; it was beginning to bear fruit in the domain of public law; the elected knights and burgesses must bring with them to parliament “full powers” for the representation of the shires and boroughs. But of any informal agency, of any implied agency, we read very little.176 We seem to see the beginning of it when an abbot is sued for the price of goods which were purchased by a monk and came to the use of the convent.177

Agency and “uses.”The germ of agency is hardly to be distinguished from the germ of another institution which in our English law has an eventful future before it, the “use, trust or confidence.” In tracing its embryonic history we must first notice the now established truth that the English word use when it is employed with a technical meaning in legal documents is derived, not from the Latin word usus, but from the Latin word opus, which in old French becomes os or oes.178 True that the two words are in course of time confused, so that if by a Latin document land is to be conveyed to the use of John, the scribe of the charter will write ad opus Johannis or ad usum Johannis indifferently, or will perhaps adopt the fuller formula ad opus et ad usum; nevertheless the earliest history of “the use” is the early history of the phrase ad opus.179 Now this both in France and in England we may find in very ancient days. A man will sometimes receive money to the use (ad opus) of another person; in particular, money is frequently being received for the king’s use. A king must have many officers who are always receiving money, and we have to distinguish what they receive for their own proper use (ad opussuum proprium) from what they receive on behalf of the king. Further, long before the Norman Conquest we may find a man saying that he conveys land to a bishop to the use of a church, or conveys land to a church to the use of a dead saint. The difficulty of framing a satisfactory theory touching the whereabouts of the ownership of what we may loosely call “the lands of the churches” gives rise to such phrases. In the thirteenth century we commonly find that where there is what to our eyes is an informal agency, this term adopus is used to describe it. Outside the ecclesiastical sphere there is but little talk of “procuration”; there is no current word that is equivalent to our agent; John does not receive money or chattels “as agent for” Roger; he receives it to the use of Roger (ad opus Rogeri).

Chattels held to the use of another.Now in the case of money and chattels that haziness in the conception of ownership to which we have often called attention180 prevents us from making a satisfactory analysis of the notion that this ad opus implies. William delivers two marks or three oxen to John, who receives them to the use of Roger. In whom, we may ask, is the ownership of the coins or of the beasts? Is it already in Roger; or, on the other hand, is it in John, and is Roger’s right a merely personal right against John? This question does not arise in a clear form, because possession is far more important than ownership. We will suppose that John, who is the bailiff of one of Roger’s manors, has in the ordinary course of business gone to a market, sold Roger’s corn, purchased cattle with the price of the corn and is now driving them home. We take it that if a thief or trespasser swoops down and drives off the oxen, John can bring an appeal or an action and call the beasts his own proper chattels. We take it that he himself cannot steal the beasts; even in the modern common law he cannot steal them until he has in some way put them in his employer’s possession.181 We are not very certain that, if he appropriates them to his own use, Roger has any remedy except an action of debt or of account, in which his claim can be satisfied by a money payment. And yet the notion that the beasts are Roger’s, not John’s, is growing and destined to grow. In course of time the relationship expressed by the vague ad opus will in this region develop into a law of agency. In this region the phrase will appear in our own day as expressing rights and duties which the common law can sanction without the help of any “equity.” The common law will know the wrong that is committed when a man “converts to his use” (ad opus suum proprium) the goods of another; and in course of time it will know the obligation which arises when money is “had and received to the use” of some person other than the recipient.

Lands held to the use of another.It is not so in the case of land, for there our old law had to deal with a clearer and intenser ownership. But first we must remark that at a very remote period one family at all events of our legal ancestors have known what we may call a trust, a temporary trust, of lands. The Frank of the Lex Salica is already employing it; by the intermediation of a third person, whom he puts in seisin of his lands and goods, he succeeds in appointing or adopting an heir.182 Along one line of development we may see this third person, this “saleman,” becoming the testamentary executor of whom we must speak hereafter; but our English law by forbidding testamentary dispositions of land has prevented us from obtaining many materials in this quarter. However, in the England of the twelfth century we sometimes see the lord intervening between the vendor and the purchaser of land. The vendor surrenders the land to the lord “to the use” of the purchaser by a rod, and the lord by the same rod delivers the land to the purchaser.183 Freeholders, it is true, have soon acquired so large a liberty of alienation that we seldom read of their taking part in such surrenders; but their humbler neighbours (for instance, the king’s sokemen) are often surrendering land “to the use” of one who has bought it. What if the lord when the symbolic stick was in his hand refused to part with it? Perhaps the law had never been compelled to consider so rare an event; and in these cases the land ought to be in the lord’s seisin for but a moment. However, we soon begin to see what we cannot but call permanent “uses.” A slight but unbroken thread of cases, beginning while the Conquest is yet recent, shows us that a man will from time to time convey his land to another “to the use” of a third. For example, he is going on a crusade and wishes that his land shall be held to the use of his children, or he wishes that his wife or his sister shall enjoy the land, but doubts, it may be, whether a woman can hold a military fee or whether a husband can enfeoff his wife. Here there must be at the least an honourable understanding that the trust is to be observed, and there may be a formal “interposition of faith.” Then, again, we see that some of the lands and revenues of a religious house have often been devoted to some special object; they have been given to the convent “to the use” of the library or “to the use” of the infirmary, and we can hardly doubt that a bishop will hold himself bound to provide that these dedications, which are sometimes guarded by the anathema, shall be maintained. Lastly, in the early years of the thirteenth century the Franciscan friars came hither. The law of their being forbad them to own anything; but they needed at least some poor dormitory, and the faithful were soon offering them houses in abundance. A remarkable plan was adopted. They had come as missionaries to the towns; the benefactor who was minded to give them a house, would convey that house to the borough community “to the use of” or “as an inhabitation for” the friars. Already, when Bracton was writing, plots of land in London had been thus conveyed to the city for the benefit of the Franciscans. The nascent corporation was becoming a trustee. It is an old doctrine that the inventors of “the use” were “the clergy” or “the monks.” We should be nearer the truth if we said that, to all seeming, the first persons who in England employed “the use” on a large scale were, not the clergy, nor the monks, but the friars of St. Francis.

The “use” of lands.Now in few, if any, of these cases can the ad opus be regarded as expressing the relation which we conceive to exist between a principal and an agent. It is intended that the “feoffee to uses” (we can employ no other term to describe him) shall be the owner or legal tenant of the land, that he shall be seised, that he shall bear the burdens incumbent on owners or tenants, but he is to hold his rights for the benefit of another. Such transactions seem to have been too uncommon to generate any definite legal theory. Some of them may have been enforced by the ecclesiastical courts. Assuredly the citizens of London would have known what an interdict meant, had they misappropriated the lands conveyed to them for the use of the friars, those darlings of popes and kings. Again, in some cases the feoffment might perhaps be regarded as a “gift upon condition,” and in others a written agreement about the occupation of the land might be enforced as a covenant. But at the time when the system of original writs was taking its final form “the use” had not become common enough to find a comfortable niche in the fabric. And so for a while it lives a precarious life until it obtains protection in the “equitable” jurisdiction of the chancellors. If in the thirteenth century our courts of common law had already come to a comprehensive doctrine of contract, if they had been ready to draw an exact line of demarcation between “real” and “personal” rights, they might have reduced “the use” to submission and assigned to it a place in their scheme of actions: in particular, they might have given the feoffor a personal, a contractual, action against the feoffee. But this was not quite what was wanted by those who took part in these transactions; it was not the feoffor, it was the person whom he desired to benefit (the cestui que use of later days) who required a remedy, and moreover a remedy that would secure him, not money compensation, but enjoyment of the land. “The use” seems to be accomplishing its manifest destiny when at length after many adventures it appears as “equitable ownership.”

Feudalism and contract.We have been laying stress on the late growth of a law of contract, so for one moment we must glance at another side of the picture. The master who taught us that “the movement of the progressive societies has hitherto been a movement from Status to Contract,” was quick to add that feudal society was governed by the law of contract.184 There is no paradox here. In the really feudal centuries men could do by a contract, by the formal contract of vassalage or commendation, many things that cannot be done now-a-days. They could contract to stand by each other in warfare “against all men who can live and die”; they could (as Domesday Book says) “go with their land” to any lord whom they pleased; they could make the relation between king and subject look like the outcome of agreement; the law of contract threatened to swallow up all public law. Those were the golden days of “free,” if “formal,” contract. The idea that men can fix their rights and duties by agreement is in its early days an unruly, anarchical idea. If there is to be any law at all, contract must be taught to know its place.

Note on the Phrase “Ad Opus,” and the Early History of the Use

I. The employment of the phrase ad opus meum (tuum, suum as meaning on my (your, his) behalf, or for my (your, his) profit or advantage, can be traced back into very early Frankish formulas. See Zeumer’s quarto edition of the Formulae Merovingici et Karolini Aevi (Monumenta Germaniae), index s.v. opus. Thus, e.g.:—

p. 115 “ut nobis aliquid de silva ad opus ecclesiae nostrae . . . dare iubeatis.” (But here opus ecclesiae may mean the fabric of the church.)

p. 234 “per quem accepit venerabilis vir ille abba ad opus monasterio suo [= monasterii sui] . . . masas ad commanendum.”

p. 208 “ad ipsam iam dictam ecclesiam ad opus sancti illius . . . dono.”

p. 315 (An emperor is speaking) “telonium vero, excepto ad opus nostrum inter Q et D vel ad C [place names ubi ad opus nostrum decima exigitur, aliubi eis ne requiratur.”

II. So in Karolingian laws for the Lombards. Mon. Germ. Leges, iv. Liber Papiensis Pippini, 28 (p. 520): “De compositionibus quae ad palatium pertinent: si comites ipsas causas convenerint ad requirendum, illi tertiam partem ad eorum percipiant opus, duos vero ad palatium.” (The comes gets “the third penny of the county” for his own use.)

Lib. Pap. Ludovici Pii 40 (p. 538): “Ut de debito quod ad opus nostrum fuerit wadiatum talis consideratio fiat.”

III. From Frankish models the phrase has passed into Anglo-Saxon land-books. Thus, e.g.:—

Cenwulf of Mercia, ad 809, Kemble, Cod. Dipl. v. 66: “Item in alio loco dedi eidem venerabili viro ad opus praefatae Christi ecclesiae et monachorum ibidem deo servientium terram . . .”

Beornwulf of Mercia, ad 822, Kemble, Cod. Dipl. v. 69: “Rex dedit ecclesiae Christi et Wulfredo episcopo ad opus monachorum . . . villam Godmeresham.”

Werhard’s testament, ad 832, Kemble, Cod. Dipl. i. 297: the archbishop acquired lands for the use of the cathedral convent: “ad opus . . . familiae [Christi].”

IV. It is not uncommon in Domesday Book. Thus, e.g.:—

D. B. i. 209: “Inter totum reddit per annum xxii. libras . . . ad firmam regis . . . Ad opus reginae duas uncias auri . . . et i. unciam auri ad opus vicecomitis per annum.”

D. B. i. 60 b: “Duae hidae non geldabant quia de firma regis erant et ad opus regis calumniatae sunt.”

D. B. ii. 311: “Soca et saca in Blideburh ad opus regis et comitis.”

V. A very early instance of the French al os occurs in Leges Willelmi, i. 2 § 3: “E cil francs hom . . . seit mis en forfeit el cunté, afert al os le vescunte en Denelahe xl. ores . . . De ces xxxii. ores averad le vescunte al os le rei x. ores.” The sheriff takes certain sums for his own use, others for the king’s use. This document can hardly be of later date than the early years of the twelfth century.

VI. In order to show the identity of opus and os or oes we may pass to Britton, ii. 13: “Villenage est tenement de demeynes de chescun seignur baillé a tenir a sa volunté par vileins services de emprouwer al oes le seignur.” VII. A few examples of the employment of this phrase in connexion with the receipt of money or chattels may now be given.

Liberate Roll 45 Hen. III. (Archaeologia, xxviii. 269): Order by the king for payment of 600 marks which two Florentine merchants lent him, to wit, 100 marks for the use (ad opus) of the king of Scotland and 500 for the use of John of Britanny.

Liberate Roll 53 Hen. III. (Archaeologia, xxviii. 271): Order by the king for payment to two Florentines of money lent to him for the purpose of paying off debts due in respect of cloth and other articles taken “to our use (ad opus nostrum)” by the purveyors of our wardrobe.

Note Book, pl. 177 (ad 1222): A defendant in an action of debt confesses that he has received money from the plaintiff, but alleges that he was steward of Roger de C. and received it ad opus eiusdem Rogeri. He vouches Roger to warranty.

Selby Coucher Book, ii. 204 (ad 1285): “Omnibus . . . R. de Y. ballivus domini Normanni de Arcy salutem. Noveritis me recepisse duodecim libras . . . de Abbate de Seleby ad opus dicti Normanni, in quibus idem Abbas ei tenebatur . . . Et ego . . . dictum abbatem . . . versus dominum meum de supradicta pecunia indempnem conservabo et adquietabo.”

Y. B. 21-22 Edw. I. p. 23: “Richard ly bayla les chateus a la oeus le Eveske de Ba.”

Y. B. 33-35 Edw. I. p. 239: “Il ad conté qe eux nous livererent meyme largent al oes Alice la fille B.”

VIII. We now turn to cases in which land is concerned:—

Whitby Cartulary, i. 203-4 (middle of the twelfth century): Roger Mowbray has given land to the monks of Whitby; in his charter he says “Reginaldus autem Puer vendidit ecclesiae praefatae de Wyteby totum ius quod habuit in praefata terra et reliquit michi ad opus illorum, et ego reddidi eis, et saisivi per idem lignum per quod et recepi illud.”

Burton Cartulary, p. 21, from an “extent” which seems to come to us from the first years of the twelfth century: “tenet Godfridus viii. bovatae [corr. bovatas] pro viii. sol. praeter illam terram quae ad ecclesiam iacet quam tenet cum ecclesia ad opus fratris sui parvuli, cum ad id etatis venerit ut possit et debeat servire ipsi ecclesiae.”

Ramsey Cartulary, ii. 257-58, from a charter dated by the editors in 1080-87: “Hanc conventionem fecit Eudo scilicet Dapifer Regis cum Ailsio Abbate Rameseiae . . . de Berkeforde ut Eudo habere deberet ad opus sororis suae Muriellae partem Sancti Benedicti quae adiacebat ecclesiae Rameseiae quamdiu Eudo et soror eius viverent, ad dimidium servitium unius militis, tali quidem pacto ut post Eudonis sororisque decessum tam partem propriam Eudonis is quam in eadem villa habuit, quam partem ecclesiae Rameseiae, Deo et Sancto Benedicto ad usum fratrum eternaliter . . . possidendam . . . relinqueret.” In D. B. i. 210 b, we find “In Bereforde tenet Eudo dapifer v. hidas de feodo Abbatis [de Ramesy].” So here we have a “Domesday tenant” as “feoffee to uses.”

Ancient Charters (Pipe Roll Soc.), p. 21 (circ. ad 1127): Richard fitz Pons announces that having with his wife’s concurrence disposed of her marriage portion, he has given other lands to her; “et inde saisivi Milonem fratrem eius loco ipsius ut ipse eam manute-neat et ab omni defendat iniuria.”

Curia Regis Roll No. 81, Trin. 6 Hen. III. m. 1 d. Assize of mort d’ancestor by Richard de Barre on the death of his father William against William’s brother Richard de Roughal for a rent. Defendant alleges that William held it in custodia, having purchased it to the use of (ad opus the defendant with the defendant’s money. The jurors say that William bought it to the use of the defendant, so that William was seised not in fee but in wardship (custodia). An attempt is here made to bring the relationship that we are examining under the category of custodia.

Note Book, pl. 999 (ad 1224): R, who is going to the Holy Land, commits his land to his brother W. to keep to the use of his (R’) sons (commisit terram illam W. ad opus puerorum suorum); on R’s death his eldest son demands the land from W, who refuses to surrender it; a suit between them in a seignorial court is compromised; each of them is to have half the land.

Note Book, pl. 1683 (ad 1225): R is said to have bought land from G to the use of the said G. Apparently R received the land from G on the understanding that he (R) was to convey it to G and the daughter of R (whom G was going to marry) by way of a marriage portion.

Note Book, pl. 1851 (ad 1226-27): A man who has married a second wife is said to have bought land to the use of this wife and the heirs of her body begotten by him.

Note Book, pl. 641 (ad 1231): It is asserted that E impleaded R for certain land, that R confessed that the land was E’s in consideration of 12 marks, which M paid on behalf of E, and that M then took the land to the use (ad opus) of E. Apparently M was to hold the land in gage as security for the 12 marks.

Note Book, pl. 754 (ad 1233): Jurors say that R desired to enfeoff his son P, an infant seven years old; he gave the land in the hundred court and took the child’s homage; he went to the land and delivered seisin; he then committed the land to one X to keep to the use of P (ad custodiendum ad opus ipsius Petri) and afterwards he committed it to Y for the same purpose; X and Y held the land for five years to the use of P.

Note Book, pl. 1244 (ad 1238-39): A woman, mother of H, desires a house belonging to R; H procures from R a grant of the house to H to the use (ad opus) of his mother for her life.

Assize Roll No. 1182, m. 8 (one of Bracton’s Devonshire rolls): “Iuratores dicunt quod idem Robertus aliquando tenuit hundredum illud et quod inde cepit expleta. Et quaesiti ad opus cuius, utrum ad opus proprium vel ad opus ipsius Ricardi, dicunt quod expleta inde cepit, sed nesciunt utrum ad opus suum proprium vel ad opus ipsius Ricardi quia nesciunt quid inde fecit.”

Chronicon de Melsa, ii. 116 (an account of what happened in the middle of the thirteenth century compiled from charters): Robert confirmed to us monks the tenements that we held of his fee; “et in-super duas bovatas cum uno tofto . . . ad opus Ceciliae sororis suae et heredum suorum de corpore suo procreatorum nobis concessit; ita quod ipsa Cecilia ipsa toftum et ii. bovatas terrae per forinsecum servitium et xiv. sol. et iv. den. annuos de nobis teneret. Unde eadem toftum et ii. bovatas concessimus dictae Ceciliae in forma praescripta.”

Historians of the Church of York, iii. 160: In 1240 Hubert de Burgh in effect creates a trust for sale. He gives certain houses to God for the defence of the Holy Land and delivers them to three persons “ad disponendum et venditioni exponendum.” They sell to the Archbishop of York.

IX. The lands and revenues of a religious house were often appropriated to various specific purposes, e.g. ad victum monachorum, ad vestitum monachorum, to the use of the sacrist, cellarer, almoner or the like, and sometimes this appropriation was designated by the donor. Thus, e.g. Winchcombe Landboc, i. 55, “ad opus librorum”; i. 148, “ad usus infirmorum monachorum”; i. 73, certain tithes are devoted “in usum operationis ecclesiae,” and in 1206 this devotion of them is protected by a ban pronounced by the abbot; only in case of famine or other urgent necessity may they be diverted from this use. So land may be given “to God and the church of St. German of Selby to buy eucharistic wine (ad vinum missarum emendum”; Selby Coucher, ii. 34.

In the ecclesiastical context just mentioned usus is a commoner term than opus. But the two words are almost convertible. On Curia Regis Roll No. 115 (18-19 Hen. III.) m. 3 is an action against a royal purveyor. He took some fish ad opus Regis and converted it in usus Regis.

X. In the great dispute which raged between the Archbishops of Canterbury and the monks of the cathedral monastery one of the questions at issue was whether certain revenues, which undoubtedly belonged to “the church” of Canterbury, had been irrevocably devoted to certain specific uses, so that the archbishop, who was abbot of the house, could not divert them to other purposes. In 1185 Pope Urban III. pronounces against the archbishop. He must restore certain parochial churches to the use of the almonry. “Ecclesiae de Estreia et de Munechetun . . . ad usus pauperum provide deputatae fuissent, et a . . . praedecessoribus nostris eisdem usibus confirmatae . . . Monemus quatenus . . . praescriptas ecclesias usibus illis restituas.” Again, the prior and convent are to administer certain revenues which are set apart “in perpetuos usus luminarium, sacrorum vestimentorum et restaurationis ipsius ecclesiae, et in usus hospitum et infirmorum.” At one stage in the quarrel certain representatives of the monks in the presence of Henry II. received from the archbishop’s hand three manors “ad opus trium obedientiariorum, cellerarii, camerarii et sacristae.” See Epistolae Cantuarienses, pp. 5, 38, 95.

XI. Historians of the Church of York, iii. 155: In 1241 we see an Archbishop of York using somewhat complicated machinery for the creation of a trust. He conveys land to the chapter on condition that (ita quod) they will convey it to each successive archbishop to be held by him at a rent, which rent is to be paid to the treasurer of the cathedral and expended by him in the maintenance of a chantry. The event that an archbishop may not be willing to accept the land subject to this rent is provided for. This “ordination” is protected by a sentence of excommunication.

XII. We now come to the very important case of the Franciscans.

Thomas of Eccleston, De adventu Fratrum Minorum (Monumenta Franciscana, i.), p. 16: “Igitur Cantuariae contulit eis aream quandam et aedificavit capellam . . . Alexander magister Hospitalis Sacerdotum; et quia fratres nihil omnino appropriare sibi voluerunt, facta est communitati civitatis propria, fratribus vero pro civium libitu commodata . . . Londoniae autem hospitatus est fratres dominus Johannes Ywin, qui emptam pro fratribus aream communitati civium appropriavit, fratrum autem usumfructum eiusdem pro libitu dominorum devotissime designavit . . . Ricardus le Muliner contulit aream et domum communitati villae [Oxoniae] ad opus fratrum.” This account of what happened in or about 1225 is given by a contemporary.

Prima Fundatio Fratrum Minorum Londoniae (Monumenta Franciscana, i.), p. 494. This document gives an account of many donations of land made to the city of London in favour of the Franciscans. The first charter that it states is one of 1225, in which John Iwyn says that for the salvation of his soul he has given a piece of land to the communitas of the city of London in frankalmoin “ad inhospitandum [ a word missing pauperes fratres minorum [minores?] quamdiu voluerint ibi esse.”

XIII. The attempt of the early Franciscans to live without property of any sort or kind led to subtle disputations and in the end to a world-shaking conflict. At one time the popes sought to distinguish between ownership and usufruct or use; the Franciscans might enjoy the use but could not have ownership; the dominium of all that was given to their use was deemed to be vested in the Roman church and any litigation about it was to be carried on by papal procurators. This doctrine was defined by Nicholas III. in 1279. In 1322 John XXII. did his best to overrule it, declaring that the istinction between use and property was fallacious and that the friars were not debarred from ownership (Extrav. Jo. XXII. 14. 3). Charges of heresy about this matter were freely flung about by and against him, and the question whether Christ and His Apostles had owned goods became a question between Pope and Emperor, between Guelph and Ghibelline. In the earlier stages of the debate there was an instructive discussion as to the position of the third person, who was sometimes introduced as an intermediary between the charitable donor and the friars who were to take the benefit of the gift. He could not be treated as agent or procurator for the friars unless the ownership were ascribed to them. Gregory IX. was for treating him as an agent for the donor. See Lea, History of the Inquisition, iii. 5-7, 29-31, 129-54. XIV. It is very possible that the case of the Franciscans did much towards introducing among us both the word usus and the desire to discover some expedient which would give the practical benefits of ownership to those who could yet say that they owned nothing. In every large town in England there were Minorites who knew all about the stormy controversy, who had heard how some of their foreign brethren had gone to the stake rather than suffer that the testament of St. Francis should be overlaid by the evasive glosses of lawyerly popes, and who were always being twitted with their impossible theories by their Dominican rivals. On the continent the battle was fought with weapons drawn from the armoury of the legist. Among these were usus and usufructus. It seems to have been thought at one time that the case could be met by allowing the friars a usus or usufructus, these terms being employed in a sense that would not be too remote from that which they had borne in the old Roman texts. Thus it is possible that there was a momentary contact between Roman law—medieval, not classical, Roman law—and the development of the English use. Englishmen became familiar with an employment of the word usus which would make it stand for something that just is not, though it looks exceedingly like, dominium. But we hardly need say that the use of our English law is not derived from the Roman “personal servitude”; the two have no feature in common. Nor can we believe that the Roman fideicommissum has anything to do with the evolution of the English use. In the first place, the English use in its earliest stage is seldom, if ever, the outcome of a last will, while the fideicommissum belongs essentially to the law of testaments. In the second place, if the English use were a fideicommissum it would be called so, and we should not see it gradually emerging out of such phrases as ad opus and ad usum. What we see is a vague idea, which developing in one direction becomes what we now know as agency, and developing in another direction becomes that use which the common law will not, but equity will, protect. It is only in the much later developments and refinements of modern family settlements that the English system of uses becomes capable of suggesting Fideicommiss to modern German inquirers as an approximate equivalent. Where Roman law has been “received” the fideicommissum plays a part which is insignificant when compared with that played by the trust in our English system. Of course, again, our “equitable ownership,” when it has reached its full stature, has enough in common with the praetorian bonorum possessio to make a comparison between the two instructive; but an attempt to derive the one from the other would be too wild for discussion.

[1 ] Schmid, Gesetze, Glossar, s.v. Marktrecht.

[2 ] Sohm, Recht der Eheschliessung; Heusler, Institutionen, ii. 225; Schröder, D. R. G., p. 283; Franken, Französisches Pfandrecht, 43; Esmein, Études sur les contrats dans le très-ancien droit français; Viollet, Histoire du droit civil français, 599; Pertile, Storia del diritto italiano, iv. 465: Amira in Paul’s Grundriss der Germanischen Phiologie, vol. ii. pt. 2, p. 161.

[3 ] In modern times we use the world pledge when a thing is given by way of security. But throughout the middle ages such a thing is a gage, a vadium. On the other hand the word pledge, which answered to the A.-S. borh, was reserved for cases in which there was what we now call suretyship; the plegius was a surety. Thus the common formula Pone per vadium et salvos plegios would, according to our modern use of words, become “Exact a pledge and safe sureties.” In this chapter we shall give to gage and pledge their old meanings: a gage is a thing, a pledge is a person.

[4 ] See above, vol. ii. p. 177.

[5 ] Wigmore, The Pledge Idea, Harv. L. R. x. 326 ff.

[6 ] Schröder, D. R. G., p. 60.

[7 ] Heusler, Institutionen, i. 76.

[8 ] Heusler, Institutionen, i. 77. It is not unknown in England that in the surrender of copyholds a straw will sometimes take the place of the rod. A straw is inserted in the top of the document which witnesses the surrender of a copyhold and is fixed in that place by seals. The person who is making the surrender holds one end of the straw when he hands the document to the steward. We owe this note to Dr. Kenny.

[9 ] See above, vol. ii. p. 95.

[10 ] Hengham Magna, cap. 6: “affidatis in manibus vel super virgam clamatoris.” The clamator is the crier of the court.

[11 ] See the Book of Dennis, a custumal of the Forest, of which we have only an English version made in 1673 from an ancient original. It is printed by H. G. Nicholls, Iron Making in the Olden Times (1866), p. 71. “And there the debtor before the Constable and his Clarke, the Gaveller and the Miners, and none other Folke to plead right but onely the Miners, shall be there and hold a stick of holly and then the said Myner demanding the debt shall putt his hand upon the sticke and none others with him and shall sweare upon his Faith that the said debt is due to him.”

[12 ] This is the Selbstbürgschaft of German writers; Heusler, Institutionen, ii. 242; Schröder. D. R. G., p. 286.

[13 ] Heusler, Instit., i. 76, 92.

[14 ] For the special connexion of Fides with Jupiter, see Ennius, ap. Cic. Off. 3, 29, 104: “O Fides alma apta pinnis et iusiurandum Iovis.” Cp. Leist, Altarisches Ius Civile, pp. 420 ff. Leist has no doubt (p. 449) that the hand itself was the gage. Promises by oath were said to have been put by Numa under the protection of all the gods, ibid. 429. Cicero’s comment, “qui ius igitur iurandum violat, is fidem violat” etc., deriving the force of a formal oath from the natural obligation of fides implied in it, is a reversal, perhaps a conscious reversal, of the process of archaic morality. Other passages in Cicero show that the cult of Fides was treated as deliberate ethical allegory by educated Romans of his time.

[15 ] There is abundant authority to show that the Roman custom was both ancient and popular. Fides is the special name of iustitia as applied creditis in rebus: Cic. Orat. Part. c. 22 § 78, cf. Dig. 12, 1, 1. “[Populus Romanus] omnium [virtutum] maxime et praecipue fidem coluit”: Gell. 20, 1. See Muirhead, Private Law of Rome, 149, 163; Dion. H. 2, 75; Livy, 1, 21 § 4; and (as to the right hand) Plin. H. N. xi. 45, 103; Servius on Aen. 3. 607; Pacchioni, Actio ex sponsu (repr. from Archivio Giuridico) Bologna, 1888, on the distinct history of the Stipulation. Brunner, Röm. u. Germ. Urkunde, 222, holds that very possibly the Franks found the provincials using the phrase fidem facere to describe the ceremony of stipulation, and borrowed it (they borrowed the word stipulatio also) for the purpose of describing their own formal contract. Caesar, B. G., iv. 11, makes certain Germans employ the phrase iureiurando fidem facere; Esmein, Études sur les contrats, 73.

[16 ] See Ducange, s.v. Dextrae. Esmein, Études sur les contrats, 98.

[17 ] Laws of Edward, ii. 6. If a thief forfeits his freedom “and his hand on hand sylle (et manum suam in manum mittat),” he is to be treated as a slave. See Brunner, D. R. G. ii. 270.

[18 ] Brunner, D. R. G. ii. 428; Schmid, Gesetze, App. vii. 1 § 4: when a blood-feud is being compromised the peace is sworn “on ánum wæpne.” The oath on the sword was itself invested with a Christian character by association with the cross of the guard. In the 16th century the oath of admission to the gild of Spanish fencing-masters was taken “super signum sanctae crucis factum de pluribus ensibus”; Rev. archéol. vi. 589.

[19 ] Theodore’s Penitential, i. 6 (Haddan and Stubbs, iii. 182): “Quis periurium facit in aecclesia, xi. annos peniteat. Qui vero necessitate coactus sit, iii. quadragesimas. Qui autem in manu hominis iurat, apud Graecos nihil est. Si vero iuraverit in manu episcopi vel presbiteri aut diaconi seu in alteri [corr. altari] sive in cruce consecrata, et mentitus est, iii. annos peniteat.”

[20 ] Laws of Wihtræd, 18. So after several centuries, “Clericus non debet iurare in iudicio coram iudicibus saecularibus”; Protest of Grosseteste, Ann. Burton, 426.

[21 ] The process whereby in England the word affidavit has come to imply an actual oath upon the gospels would be worthy of investigation. But it does not fall within our period.

[22 ] Rievaulx Cartulary, p. 164: Henry Archbishop of York declares to his successors and to the cathedral chapter how in his presence Robert de Ros confirmed to Rievaulx Abbey the lands given by Walter Espec; “et primum haec omnia sacramento firmavit, deinde Christianitatem in manu mea qua se obsidem dedit et me plegium constituit de his omnibus”; therefore if he infringes the pact, he is to be coerced by ecclesiastical censures. Another good instance will be found in Madox, Formulare, p. 3. See also Ducange, s.v. Christianitas. For some political pacts sanctioned by affidation, see Round, Geoffrey de Mandeville, p. 384.

[23 ] Eadmer. Hist. Nov. p. 31: Rufus in a moment of terrified repentance promises to restore the good laws; “spondet in hoc fidem suam, et vades inter se et Deum facit episcopos suos, mittens qui hoc votum super altare sua vice promittant.”

[24 ] Letters of John of Salisbury, ed. Giles, ii. 224: Henry II. Promises to forgive Becket; “primo Deum et (ut dici solet) Christianitatem suam obsidem dabat; deinde patruum suum . . . et omnes qui convenerant constituebat fideiussores.”

[25 ] Rievaulx Cartulary, 33: Roger de Mowbray says, “Hanc donationem [a gift to Rievaulx] ego et Nigellus filius meus manu nostra affidavimus tendendam in manu Roberti Decani [Eboracensis] . . . et ipsam ecclesiam Eboracensem testem et fideiussorem inter nos et monachos constituimus, ita ut si aliquando ego vel heredes mei ab hac conventione deviaverimus ipsa ecclesia ad haec exequenda nos ecclesiastica revocet disciplina.” For other instances see ibid. pp. 37, 39, 159, 169.

[26 ] Kohler, Shakespeare vor dem Forum der Jurisprudenz, p. 62.

[27 ] See an article by Sir Edward Fry, Specific Performance and Laesio Fidei, L. Q. R. v. 235. The godborh should be compared with the practice of “taking God to witness” and inscribing His name at the head of a list of witnesses who attest a charter. See the ancient Welsh documents written in the Book of St. Chad and reproduced by Gwenogvryn Evans in his edition of the Liber Landavensis, p. xlv, where the first witness is “Deus Omnipotens.”

[28 ] See Brunner, Röm. u. Germ. Urkunde.

[29 ] Rozière, Recueil des formules, i. 152: “Romanamque legem ordinantem ut quicumque in aetate perfecta pactionem vel diffinitionem per scripturam fecerit, et hoc quod fecit implere neglexerit, aut contra eam ire praesumpserit, infames vocetur et ipsam causam agere non permittatur, atque poenam statutam cogeture exsolvere.” See Esmein, Études, 17.

[30 ] Heusler, Institutionen, i. 87-92.

[31 ] Brunner, Urkunde, 224. Kemble, Cod. Dip. vol. v. p. 54 (ad 791): “cunctis astipulantibus et confirmantibus nominatis atque infra descriptis.” Charter of Henry I., Monasticon, iv. 18: “Hanc donationem confirmo ego Henricus rex et astipulatione sanctae crucis et appositione sigilli mei.”

[32 ] See above, vol. ii. p. 90.

[33 ] See Rozière’s collection of formulas passim.

[34 ] Bracton, f. 100 b; Bracton and Azo (Selden Soc.), p. 155. It should be remembered that Justinian (Inst. 3, 21) had done his very best to lead the medieval lawyers astray.

[35 ] Cart. Rievaulx, p. 410; a bond given in 1275 by the abbot to a Florentine firm: “promittimus et tenemur per legitimam stipulationem . . . tenemur per praedictam stipulationem.” Camb. Univ. Libr. ms Ee. 5. 31, f. 12 b; the convent of Christ Church, Canterbury, gives a bond to the Frescobaldi: “Nos vero dictas xxx. marcas vel consimiles praedictis Johanni, Coppo, Rutto et Tedaldo stipulantibus tam pro se ipsis quam pro praedictis Gyno et aliis sociis suis . . . promittimus reddere.” In 1214 the Earl of Ferrers becomes a surety for a debt due by King John to the Pope; in his charter he says “constitui me fideiussorem . . . per solempnem stipulationem promittens quod . . . satisfaciam”; Rot. Pat. Joh. p. 139.

[36 ] Alfred, 33.

[37 ] Alfred, 1 § 8.

[38 ] Schmid, Gesetze, App. vi.

[39 ] Schmid, Gesetze, Glossar, s.v. Eid, wed, borh.

[40 ] Seuffert, Geschichte der obligatorischen Verträge.

[41 ] Azo, Summa Cod. de pactis (2, 3), paints for us a shivering pact which nestles among the furs, the “vair and grise,” of some well-dressed contract and becomes pactum adiectum. Bracton and Azo, 143.

[42 ] Azo, l.c.: “vel dicitur [pactum] a percussione palmarum; veteres enim consentientes palmas ad invicem percutiebant in signum non violandae fidei.”

[43 ] Salmond, Essays in Jurisprudence, p. 174.

[44 ] As to the character of this part of Bracton’s work, see Bracton and Azo (Selden Soc.), 142 ff. Britton, i. 156, and Fleta, p. 120, repeat the learning of vestments. Fleta, however, has some valuable passages about the action of debt. It is not unlikely that Bracton intended to give a chapter to that action.

[45 ] See below, the section on Marriage.

[46 ] cc. 1. 3. X., de pactis, 1. 35; Seuffert, op. cit. 47. One of the first writers who proclaim this doctrine is that Hostiensis, who (see above, vol. i. pp. 130, 227) had made himself but too well known in England. Hostiensis, ad tit. de pactis. § quid sit effectus: “Ut modis omnibus servetur, etiamsi sit nudum secundum canones . . . quia inter simplicem loquelam et iuramentum non facit Deus differentiam.” See Seuffert, op. cit. 50.

[47 ] Seuffert, op. cit. passim.

[48 ] Franken, Das französische Pfandrecht, pp. 43 ff.

[49 ] Seuffert, op. cit. 77, 80.

[50 ] Seuffert, op. cit. ad fin.

[51 ] Glanvill, x. 8: “Curia domini Regis huiusmodi privatas conventiones de rebus dandis vel accipiendis in vadium vel alias huiusmodi, extra curiam, sive etiam in aliis curiis quam in curia domini Regis, factis, tueri non solet nec warantizare.” Ibid. x. 18: “Praedictos vero contractus qui ex privatorum consensu fiunt breviter transigimus, quia, ut praedictum est, privatas conventiones non solet curia do-mini Regis tueri.” See also the passage from Bracton, cited below, p. 227, note 139.

[52 ] Northumberland Assize Rolls (Surtees Soc.), p. 56: in 1253 a marriage settlement is secured by faith deposited in the hands of the Abbot of Newminster and the Prior of Hexham. Winchcombe Landboc, i. 204: A. W., on quit-claiming land to the abbot, pledges his faith in the hands of E. R. Rievaulx Cartulary, 39: S. and his wife, releasing land to their lord, pledge faith in the hands of the lord’s steward in full court: they then go before the sheriff and pledge faith in his hands. See ibid., 69, 76, 77, 89, 100-102, 139.

[53 ] Letters of John of Salisbury, ed. Giles, vol. i. pp. 1, 3, 8, 21 etc.

[54 ] Hoveden, i. 238, and Materials for the Life of Becket, v. 294: “Quod non liceat episcopo coercere aliquem de periurio vel fide laesa.” See also Materials, ii. 380, vi. 265. William Fitz Stephen (Mater. iii. 47) gives this version:—“Ne omnis controversia de fidei vel sacramenti trangressione sit in foro ecclesiastico; sed tantum de fide adacta pro nuptiis vel dote vel huiusmodi, quae non debent fieri nisi in facie ecclesiae. De aliter dato fidei sacramento, ut de debitis vel sic, statuit rex causam esse in foro laico.” Anonymus II. (Mater. iv. 102) says: “Quod apud iudicem ecclesiae non conveniatur aliquis laicus super laesa fide vel periurio de pecunia.”

[55 ] Materials, v. 79.

[56 ] Glanvill, x. 12.

[57 ] See above, vol. i. p. 470.

[58 ] In John of Oxford’s collection of precedents (circ. 1280) the example of an ecclesiastical libel (littera editionis) is one in which a plaintiff, who has transcribed a book for the defendant, claims an unliquidated sum, the amount of which is to be determined by the estimate of good men; Maitland, A Conveyancer in the Thirteenth Century, L. Q. R. vii. 67.

[59 ] Glanvill, xii. 21, 22; Select Civil Pleas (Selden Soc.), pl. 83. History of the Register, Harv. L. R. iii. 112, 114; Reg. Brev. Orig. f. 34. The ordinaries must not hold plea concerning chattels or debts “quae non sunt de testamento vel matrimonio.”

[60 ] Note Book, pl. 351: “quia ibi maturius iusticiam habere potuit.”

[61 ] Bracton, f. 401 b. In 1303 Bereford J. remarks that not long ago such clauses had been frequent in mercantile documents, but that they were against law; Y. B. 30-31 Edw. I. 493. Sometimes the promisor had expressly obliged himself “sub poena anathematis”; Selby Coucher, ii. 140.

[62 ] Grosseteste’s articles (1258), Ann. Burton, 423: “Item sub colore prohibitionis placiti in curia Christianitatis de pecunia, nisi sit de testamento vel matrimonio, impedit et perturbat [Rex] processum in foro ecclesiastico super fidei laesione, periurio . . . in magnum animarum detrimentum.”

[63 ] Note Book, pl. 50, 351, 670, 683, 1361, 1464, 1671, 1893.

[64 ] Note Book, pl. 351.

[65 ] Statutes of the Realm, i. 101. The editors of this volume seem to have failed to find any authentic text of this writ. It certainly ought to be enrolled somewhere. The author of the Mirror treats it as a statute. Possibly Britton, i. 28, alludes to it. A reason for giving it to the year 1285 is that it appears to be issued in consequence of a petition presented in that year by the bishops; Wilkins, Concilia, ii. 117. In this they complain in general terms that they are prohibited from entertaining causes de fidei vel sacramenti laesione.

[66 ] Such mss as we have consulted leave this very doubtful. Curiously enough Coke gives while Lyndwood, p. 97, omits the important words. The Articuli Cleri of 1315 (Statutes, i. 171) mention assaults on clerks and defamation as offences proper for ecclesiastical punishment, but say no word of breach of faith. See also Makower, Const. Hist., 434.

[67 ] Fitzherbert, Abr. Jurisdiction, pl. 28. See also Prynne, Records, iii. 336.

[68 ] Rot. Parl. ii. 319: “eaux ont encroché plee de dette ov une addition q’est appellé fide-lesion la ou unqes nul ne fust.” This injures the lords who have courts.

[69 ] Thus in 1378 Richard Vicar of Westley is cited in the Bishop of Ely’s court at the instance of a Cambridge tailor to answer for perjury and breach of faith which apparently consist in his not having paid a loan of eight shillings. Register of Bp. Arundel (in the Palace at Ely), f. 88 b. See the cases from Hale’s Precedents and Proceedings collected in Harv. L. R., vi. 403. Also Depositions and other Ecclesiastical Proceedings in the Courts of Durham (Surtees Soc.), p. 50 (ad 1535); the agreement enforced is for the purchase of a horse.

[70 ] Lib. Ass. f. 101. ann. 22. pl. 70; Y. B. 2 Hen. IV. f. 10 (Mich. pl. 45); 11 Hen. IV. f. 38 (Trin. pl. 40); 36 Hen. VI. f. 29 (Pasch. pl. 11); 20 Edw. IV. f. 10 (Mich. pl. 9); 22 Edw. IV. f. 20 (Trin. pl. 47); Second Inst. 493.

[71 ] Depositions and other Ecclesiastical Proceedings in the Courts of Durham (Surtees Soc.), p. 50; in 1535 a deponent in a case of breach of faith says that he heard the oral agreement made; “et desuper idem [reus] fidem fecit dicto actori—vidit dictum reum ponentem manum suam dextram in manu dextra ipsius actoris in supplementum promissi sui.”

[72 ] Glanvill, x. 12: “creditor ipse si non habeat inde vadium neque plegium, neque aliam disrationationem nisi sola fide, nulla est haec probatio in curia domini Regis.”

[73 ] Glanvill, x. 6. 7.

[74 ]Pone per vadium et salvos plegios—when the sheriff is bidden to do this, he, so far as we can see, merely exacts pledges (sureties). Of the wager of law we have this account in ms Brit. Mus. Egerton, 656, f. 188 b: “II gagera la ley de sun gaunt plyee e le baylera en la meyn cely e puys reprendra arere sun gaunt, e dunke trovera il plegges de la ley.” When in later times we find that the glove is “thrown down” as a gage of battle, we may perhaps suspect that some act of defiance has been confused with the act of wager.

[75 ] Dialogus, ii. 12, 19, 21, 28.

[76 ] See e.g. Hengham Magna, c. 6: Select Pleas in Manorial Courts (Selden Soc.), p. 6.

[77 ] Blackstone, Comm. ii. 448: “Antiently, among all the northern nations, shaking of hands was held necessary to bind the bargain; a custom which we still retain in many verbal contracts.”

[78 ] Select Civil Pleas (Selden Soc.), pl. 102. This has begun as early as 1201.

[79 ] Glanvill, x. 2.

[80 ] See Langdell, Contracts, §§ 99, 100.

[81 ] The doctrine that we are here maintaining about Old English law had, we believe, become the orthodox doctrine about old German law. Of late Dr. Heusler (Institutionen, i. 377-396) has vigorously attacked it, declaring that the German at a very remote time saw a difference between real and personal rights and between real and personal actions. We wish that he had considered the English actions of debt and detinue. What we have here said is in accord with Holmes, Common Law, p. 252; Salmond, Essays on Jurisprudence, 175.

[82 ] Rolls of the King’s Court (Pipe Roll Soc.), pp. 24, 25; Rot. Cur. Reg. (ed. Pal-grave), i. 5. See above, p. 180.

[83 ] A Praecipe brings the case to the royal court, a Iusticies commits it to the sheriff.

[84 ] Maitland, Register of Original Writs, Harv. L. R., iii. 112, 114; Excerpta e Rot. Fin. i. 29, 49, 62, 68; Glanvill Revised, Harv. L. R., vi. 15.

[85 ] Staffordshire Historical Collections, vol. iv.

[86 ] Curia Regis Roll for Pasch. 55 Hen. III. (No. 202).

[87 ] Select Pleas in Manorial Courts, 140, 144, 150, 152.

[88 ] See above, vol. ii. p. 181.

[89 ] In the language which the royal chancery employs in describing the loans of money made to the king by Italian bankers a change occurs about the middle of Henry III.’s reign; commodare gives place to mutuo tradere, mutuo liberare and the like. See Archaeologia, xxviii. 261.

[90 ] Y. B. 21-22 Edw. I. p. 615; 30-31 Edw. I. p. 391; 33-35 Edw. I. p. 455. In the last of these cases it is said that the heir of the original creditor is not a creditor, and therefore he cannot say debes mihi. In the early records of debt and detinue the active party does not complain (queritur) he demands (petit); in other words he is a “demandant” rather than a “plaintiff” and the action is “petitory.” See Note Book, pl. 645, 732, 830.

[91 ] So in French customary law obligation has a similar narrow meaning: Esmein, Études sur les contrats, pp. 151, 177.

[92 ] Glanvill, x. 14; Bracton, f. 61b. In this instance Bracton has worked into his book almost the whole of Glanvill’s text.

[93 ] Glanvill, x. 14: “Perficitur autem emptio et venditio cum effectu ex quo de pretio inter contrahentes convenit, ita tamen quod secuta fuerit rei emptae et venditae traditio, vel quod pretium fuerit solutum totum sive pars, vel saltem quod arrhae inde fuerint datae et receptae.”

[94 ] Stat. 29 Car. II. c. 3. sec. 17: “except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made” etc. These words appear almost unchanged in sec. 4 of our new Sale of Goods Act, 56-57 Vic. c. 71.

[95 ] Heusler, Institutionen, i. 76-86; ii. 253-57.

[96 ] Bracton, f. 61b, 62; Fleta, pp. 126-27. Bracton here uses the words of Inst. 3. 23, and it is possible that this definition of the vendor’s liability is due to Roman influence. Glanvill was uncertain as to the penalty that should be inflicted upon him. But the rule that the defaulting vendor shall lose the same sum that the buyer has risked is not unnatural. At any rate we cannot think that the law of earnest as known to Glanvill and Bracton is derived from the Roman law books, though this is the opinion expressed by Sir Edward Fry in Howev.Smith, 27 Chan. Div. 89, 102. The origin of the word earnest or ernes seems very obscure. The editors of the Oxford English Dictionary think that it may be traced to arrula, a diminutive of arra, through the forms arles, erles, ernes.

[97 ] A penalty of five solidi is denounced by French law-books of this age in a somewhat similar case; Franken, Das französische Pfandrecht, 57.

[98 ] For England see Select Pleas in Manorial Courts, p. 151; for Germany, Heusler, Institutionen, ii. 255; for France, Esmein, Études sur les contrats, 24; Franken, op. cit. 61; for Italy, Pertile, Storia del diritto, iv. 473.

[99 ] St. Trophimus had the benefit of it at Arles; St. Lawrence at Salon.

[100 ] Thus in the statutes of Avignon (quoted by Esmein, op. cit. 24): “Item statuimus quod quaelibet mercadaria, cuiuscumque rei emptio, et in re locata, et in quolibet alio contractu, postquam pro eis contrahendis contrahentes inter se dederint vel alius pro eis denarium dei, firma et irrevocabilis habentur, et contrahentes teneantur precise solvere precium et rem tradere super quam celebratus est contractus ultro citroque adimplere.”

[101 ] Munimenta Gildhallae, ii. 206: “Item quod quilibet contractus per ipsos mercatores cum quibuscunque personis undecunque fuerint, super quocunque genere mercandisae initis, firmus sit et stabilis, ita quod neuter praedictorum mercatorum ab illo contractu possit discedere vel resilire postquam denarius dei inter principales personas contrahentes datus fuerit et receptus.” See also the charter for the Gascon wine-merchants, Lib. Rub. Scac. iii. 1061.

[102 ] Noy, Maxims, c. 42: “If the bargain be that you shall give me ten pounds for my horse, and you do give me one penny in earnest, which I do accept, this is a perfect bargain; you shall have the horse by an action on the case and I shall have the money by an action of debt.” In Madox, Form. Angl. No. 167, we find a payment of a penny racione ernesii mentioned in a deed relating to the sale of growing crops which are not to be carried away until the residue of the price is paid. This from 1322; the earnest is here spoken of as though it were part of the price. This happens in some earlier cases also; Select Pleas in Manorial Courts, p. 140.

[103 ] Glanvill, x. 15.

[104 ] See above, vol. ii. p. 171.

[105 ] Bracton, f. 62; Fleta, p. 127: “quia revera qui rem emptori nondum tradidit adhuc ipse dominus erit, quia traditionibus et usucapionibus etc.”

[106 ] Glanvill, x. 14. Bracton, f. 62, with Glanvill and the Institutes both open before him, deliberately contradicts the latter and copies the former.

[107 ] See above, vol. ii. pp. 178.

[108 ] In a few cases it would perhaps be used to recover arrears of a freehold rent; but this was exceptional. See above, vol. ii. p. 132.

[109 ] In the sixteenth century, however, the word contract had acquired a special association with the action of debt. See Fitz. Abr. Dett, passim.

[110 ] Y. B. 21-22 Edw. I. p. 39. This was a notable action. The count in it is preserved in a collection of precedents, ms Lansdowne, 652, f. 223 b.

[111 ] Y. B. 21-22 Edw. I. p. 599.

[112 ] This is given as a precedent in ms Lansdowne, 652, f. 223 b. We shall speak of this action in another chapter.

[113 ] So late as 1314 (Y. B. 7 Edw. II. f. 242) an action of debt is brought against a surety who has not bound himself by sealed instrument. See Holmes, Common Law, pp. 260, 264, 280; Salmond, Essays in Jurisprudence, 182.

[114 ] In 1292 (Y. B. 21-22 Edw. I. p. 111) we find an action which departs from the common precedents. The plaintiff let land to the defendant for fourteen years; the defendant was to build a house worth £14 and in default was to pay that sum, or (so it seems) such part of it as was not covered by the value of any house that he had built. He built a house worth £6. 10s. The plaintiff brings an action of debt for £7. 10s. The objection that this is a case of covenant, not debt, is overruled.

[115 ] Glanvill, x. 3: “Is qui petit pluribus ex causis debitum petere potest, aut enim debetur ei quid ex causa mutui, aut ex causa venditionis, aut ex commodato, aut ex locato, aut ex deposito, aut ex alia iusta debendi causa.”

[116 ] Summa, p. 215; Ancienne coutume (ed. de Gruchy), c. 91 (90). The French text says—“Aulcun n’est estably debteur pour promesse qu’il face, se il ny eust droicte cause de promettre.” The whole of the chapters relating to debts and contracts is very instructive.

[117 ] Heusler, Institutionen, i. 81; Schröder, D. R. G. 61. The statement current in English books of recent times that the solemnity of a deed “imports consideration” is historically incorrect, but shows the persistence of this idea.

[118 ] This is the Lombard launichild (Lohngeld); see Heusler, Institutionen, i. 81; Val de Lièvre, Launegild und Wadia. Is the modern custom of nominally selling, not giving, a knife or other weapon or weapon-like thing to be regarded as a mere survival of this? Or has the launichild coalesced with some other and perhaps even older superstitious form? Dr. Brunner, Pol. Sci. Quarterly, ix. 542, suggests that if the donee were cut by the knife, he might under ancient law hold the donor answerable for the wound.

[119 ] See Fines, ed. Hunter, passim. When a fine is levied in favour of a religious house, the “consideration” stated in the chirograph is very often the admission of the benefactor into the benefit of the monks’ prayers; see e.g. Selby Coucher, ii. 329, 333. The sparrow-hawk is a “common form” in fines of Edward I.’s day.

[120 ] The ordinary bond of this period generally states that there has been a loan of money, and, even when both parties are Englishmen, it often contains a renunciation of the exceptio non numeratae pecuniae. See, e.g. Selby Coucher, ii. p. 243, where this occurs in a quit-claim. This probably was an unnecessary precaution learnt from the Italian bankers; for see Bracton, f. 100 b. But in any case the bond is no mere promise; it is the confession of a legal debt. It says, Sciatis me teneri. As Bracton puts it, the obligor scripsit se debere and is bound by his confession.

[121 ] We cannot accept the ingenious theory advocated by Mr. Justice Holmes, Common Law, pp. 255-59, which would connect the requirement of quid pro quo with the requirement of a secta, and this with the requirement of transaction witnesses. The demand for a secta is no peculiarity of the action of debt. The plaintiff who complains (e.g.) of an assault, must produce a secta, but his suitors will not be “official witnesses.” Again, the action to recover money lent is for a long while the typical action of debt; but we have no reason to believe that money loans were contracted before official witnesses. Lastly, we have no proof that the official witnesses were ever called in by the plaintiff to establish a contract; they were called in by a defendant to protect him against a charge of theft. The history of “consideration” lies outside the period with which we are dealing. Few points in English legal history have been more thoroughly discussed within recent times. See Holmes, Common Law, Lecture vi.; Salmond, Essays in Jurisprudence, iv.; Hare on Contracts, ch. vii.; Ames, History of Assumpsit, Harv. L. R. ii. 1, 53; Jenks, Doctrine of Consideration; Pollock, Principles of Contract, App. Note E; Esmein, Un chapitre de l’histoire des contrats en droit anglais, Nouvelle revue historique de droit français et étranger, 1893, p. 555. Mr. Ames has put the subject, from the fifteenth century downwards, on a new footing.

[122 ] Even in debt for rent when there is no deed a wager of law is permitted; Y. B. 20-21 Edw. I. p. 304.

[123 ] Note Book, pl. 1693; Fleta, p. 138, allows an examination. So late as 1324 a plaintiff fails because he has no “suitors” ready; Y. B. 18 Edw. II. f. 582.

[124 ] Fleta, p. 138; this boon was conceded to merchants “ex gratia principis.” Select Civil Pleas, pl. 146; Note Book, pl. 645; Y. B. 20-21 Edw. I. p. 305; 21-22 Edw. I. p. 457; 30-31 Edw. I. p. 235; 32-33 Edw. I. p. 185. A collection of cases, ms Harley, 25. f. 179, 188, contains an interesting discussion about sealed tallies. Plaintiff produces a tally. Defendant wishes to wage his law. Plaintiff asks “Is this your deed?” Defendant answers “We need not say.” Then a judge says “Coment qil seient taillés, vus les avez aforcé par le planter de vostre seel, et icy vostre fet.” To this it is replied that in the time of Sir John Metingham (temp. Edw. I.) a sealed tally was admitted but the judgment was reversed.

[125 ] Fleta, pl. 138.

[126 ] Munimenta Gildhallae, i. 203. In the Laws of Alfred, 33, we read of an oath in four churches outsworn by an oath in twelve.

[127 ] See e.g. Northumberland Assize Rolls, p. 169: the plaintiff claims seven marks, the price of a horse sold about four years ago, and ten marks damages. At a little later time the civic court in London by general rule allowed damages at the rate of 20 per cent per annum unless the debt was confessed at the first summons. See Munim. Gildh. i. 471.

[128 ] Y. B. 33-35 Edw. I. p. 397. Hence a would-be verse found in ms precedent books: “Qui legem vadiat, nisi lex in tempore fiat, Mox condemnetur, taxatio non sibi detur.”

[129 ] Rolls of the King’s Court (Pipe Roll Soc.), p. 53 (ad 1194, the earliest extant plea roll); an essoin is cast in a “placitum convencionis per cirographum”; but this may be an action on a fine. Select Civil Pleas (Selden Soc.), pl. 89 (ad 1201) seems an indubitable specimen. Brevia Placitata, ed. Turner, 21.

[130 ] Maitland, Register of Writs, Harv. L. R. iii. 113-15. The writ first appears in the Registers as a Iusticies, which can be had as of course when the annual value of the land is worth less than 40 shillings. See also Excerpta e Rot. Fin. i. 31.

[131 ] Curia Regis Rolls (Rec. Off.), No. 202, Pasch. 55 Hen. III.

[132 ] See above, vol. ii. p. 102. The writ of warantia cartae is for this purpose its principal rival. Blackstone, Comm. ii. 350, mentions as alternatives the warantia cartae and the de consuetudinibus et servitiis.

[133 ] See above, vol. ii. p. 110.

[134 ] See above, vol. i. p. 428.

[135 ] Note book, pl. 1739; action by ejected termor: “Et ideo consideratum est quod conventio teneatur et quod Hugo habeat seisinam suam usque ad terminum suum x. annorum.”

[136 ] See Note Book, pl. 36. Bracton, f. 46; if a feoffment be made upon condition that the feoffee is not to alienate, the lord can eject one who purchases from the feoffee “propter modum et conventionem in donatione appositam.” Bracton does not here distinguish between condition and covenant. See also Y. B. 21-22 Edw. I. p. 183, where the objection is taken that one cannot recover a freehold in a writ of covenant; and Note Book, pl. 1656, where the action is refused to one who could bring the novel disseisin. In Y. B. 30-31 Edw. I. p. 145, we read how “this action is personal and is given against the person who did the trespass and the tort.” Thus the conception of the writ has been fluctuating between opposite poles. The statement that a breach of covenant is “tort” and “trespass” is of some importance when connected with the later history of assumpsit.

[137 ] Statutes of the Realm, vol. i. p. 66.

[138 ] Ibid.: “et quia infiniti sunt contractus conventionum difficile esset facere mentionem de quolibet in speciali.”

[139 ] Bracton, f. 34, 100; Bracton and Azo, p. 152: “Iudicialis autem poterit esse stipulatio, vel conventionalis . . . Conventionalis, quae ex conventione utriusque partis concipitur . . . et quarum totidem sunt genera, quot paene rerum contrahendarum, de quibus omnino curia regis se non intromittit nisi aliquando de gratia.” It is not very plain whether by this last phrase, which is a reminiscence of Glanvill, x. 8, Bracton means to say that the court sometimes as a matter of grace enforces unwritten agreements, or that it only enforces written agreements occasionally and as a matter of grace. On the same page, following the general tendency of medieval Roman law, he explains that a stipulatio may well be made per scripturam. In the passage here quoted the printed book gives poenae instead of paene, which (though every ms of this age would give pene even if the word was poenae) is indubitably the true reading; see Inst. 3, 18 § 3.

[140 ] Y. B. 21-22 Edw. I. p. 111: it is said that an action of covenant will lie for not building a house. Y. B. 21-22 Edw. I. p. 183: a Prioress has convenanted to provide a chaplain to sing service in the plaintiff’s chapel. But even here there is “a chantry” of which “seisin” is alleged. Y. B. 20-21 Edw. I. p. 223: covenant to return a horse that has been lent or to pay £20. But for reasons given below (p. 229) some doubt hangs over this case. Note Book, pl. 1058 (ad 1225): covenant that the plaintiff and his wife may live with the defendant, and that, if they wish to depart, he will cause them to have certain lands. Note Book, pl. 1129: covenant that plaintiff may have a hundred pigs in a certain wood. But here the plaintiff seems to be claiming a “profit.” Warranties or agreements of a similar kind seem to be occasionally enforced by writ of covenant; but usually they are enforced either by voucher or by the writ of warantia cartae. In Edward I.’s time it is thought that there are some cases in which a plaintiff can choose between debt and covenant; Y. B. 20-21 Edw. I. p. 141; 21-22 Edw. I. pp. 111, 601.

[141 ] Ames, Harv. L. R. ii. 56: “The writer has discovered no case in which a plaintiff succeeded in an action of covenant, where the claim was for a sum certain, antecedent to the seventeenth century.”

[142 ] The period of hesitation is illustrated by Note Book, pl. 890, 1129, 1549. But as early as 1234-35 we have found (Record Office, Curia Regis Roll, No. 115, m. 7) a fairly clear case of an action of covenant dismissed because the plaintiff has no deed: “et quia dictus H. non protulit cartam nec cyrographum de praedicta terra, consideratum est quod loquela illa vacua est.” On the roll for Pasch. 34 Hen. III. (Record Office, Curia Regis Roll, No. 140), m. 15 d, W. E. sues the Abbot of Evesham “quod teneat ei conventionem”; the plaintiff counts that the abbot came before the justices in eyre, granted the plaintiff an elaborate corody, and further granted that he would execute a deed (conficeret cartam) embodying this concession; suit is tendered and no appeal is made to any record. The abbot confesses the conventio, denies the breach and wages his law. In Y. B. 20-21 Edw. I. p. 223—as late therefore as 1292—we seem to see that whether “suit” will support an action of covenant is still doubtful, while it will support an action of debt. (See however, p. 487; we cannot be quite certain that one of the reporters has not blundered.) In Y. B. 21-22 Edw. I. p. 621, a defendant sets up an agreement by way of defence; on being asked what he has to prove the covenant, he appeals to “the country.” “Nota” says the reporter “ke la ou un covenant est aleggé cum chose incident en play yl put estre detrié par pays.” In Y. B. 32-33 Edw. I. p. 297, an action of covenant is brought against tenant pur autre vie for wasting the tenement; he demands judgment as the plaintiff has nothing to prove the covenant or the lease; but is told to find a better answer. This case shows the point of contact between the covenant and the lease. Ibid. p. 201, a writ of covenant is brought against a termor who is holding beyond his term; he promised to execute a written agreement, but has not; the defendant at first relies on the want of a “specialty,” but is driven to claim a freehold. The rule that what is done by “deed” can in general only be undone by “deed” appears in Y. B. 33-35 Edw. I. pp. 127, 331, 547. See Bracton, f. 101: “eisdem modis dissolvitur obligatio . . . quibus contrahitur, ut si conscripserim me debere, scribat creditor se accepisse.” This is romanesque (see the passages collected by Moyle in his comment on Inst. 3. 29) but is quite in harmony with English thought, and was rigorously enforced. See Ames, Specialty Contracts and Equitable Defences, Harv. L. R. ix. 49. The technical use of the word deed seems the outcome of the very common plea Non est factum meum, Nient mon fet, i.e. I did not execute that document. As a word which will stand for the document itself, it slowly supplants carta; it is thus used in Y. B. 33-35 Edw. I. p. 331: “nous avoms vostre fet.” As to specialty (aliquid speciale), this comes to the front in quo waranto proceedings; the claimant of a franchise must have something special to show for it. In relation to contract, the demand for specialty seems a demand for some proof other than a verdict of “the country.”

[143 ] Langdell, Survey of Equity Jurisdiction, Harv. L. R. ii. 243.

[144 ] Note Book, pl. 859.

[145 ] Maitland, Register of Original Writs, Harv. L. R. iii. 173. Brevia Placitata, ed. Turner, 23.

[146 ] Stat. Marlb. c. 23; Stat. West. II. c. 11.

[147 ] See above, vol. i. p. 340.

[148 ] Y. B. 32-33 Edw. I. p. 377, where “la manere de la companye des Lombars” is mentioned; 33-35 Edw. I. p. 295.

[149 ] Select Pleas in Manorial Courts, p. 157: action in the Fair of St. Ives (ad 1275) by a master against a servant who has left his service; the breach of contract is admitted; the judgment is that John do serve Richard to the end of the term; no written document is mentioned. See also The Court Baron (Selden Soc.), p. 115; unwritten agreement enforced in a manorial court of the Bishop of Ely. We have seen several such cases on the rolls of the court of Wisbech now preserved in the palace at Ely. In one case of Edward I.’s time the plaintiff alleges an agreement (conventio) for the sale of two acres of land for one mark. The plaintiff has paid the price but the defendant has refused to enfeoff him. No word is said of any writing. The defendant denies the agreement and asks for an inquest. The jurors find that the agreement was made, and the plaintiff has judgment for damages. For the civic courts in London, see Munimenta Gildhallae, i. 214; Fitz. Nat. Brev. 146 a. For Nottingham, see Records of Nottingham, i. 161, 167, 207. We may well believe that in the larger towns unwritten covenants were commonly enforced.

[150 ] Bresslau, Urkundenlehre, i. 521 ff; Giry, Manuel de diplomatique, 636 ff.

[151 ] The Monasticon testifies to the existence of many charters granted by the Norman kings, including Stephen, which either bore no seals, or else were also signed with crosses in the old fashion. Maitland, Domesday Book, p. 265. The Exeter Charter of William I. (Facsimiles of Anglo-Saxon Charters, vol. i. no. 16) will serve as a specimen. Sometimes the cross is spoken of as more sacred than the seal; see Monast. ii. 385-86: “non solum sigillo meo sed etiam sigillo Dei omnipotentis, id est, sanctae crucis.”

[152 ] Gesta Abbatum, i. 151. In Henry II.’s time the unsealed charters of St. Albans are considered to be validated by the sealed confirmation obtained from Henry I.

[153 ] Bigelow, Placita, 177: “Moris antiquitus non erat quemlibet militulum sigillum habere, quod regibus et praecipuis tantum competit personis.”

[154 ] Beaumanoir, c. 35 § 18: “Trois manieres de lettres sunt: le premiere entre gentix homes de lor seaus, car il poent fere obligation contr’eus par le tesmognage de lor seaus; et le second, si est que tous gentil home et home de poeste poent fere reconnisances de lor convenances par devant lor seigneurs dessoz qui il sont couquant et levant, ou par devant le sovrain.”

[155 ] The trial by collation of seals is illustrated in Note Book, pl. 1, 51, 102, 234, 237 etc.

[156 ] Winchcombe Landboc, i. 239: if J. S. breaks the water pipe of the Abbot of Winchcombe, which runs through his land, he will repair it, and in default of repair will pay half a mark for each day’s neglect. Reg. Malmesb. ii. 83: if rent falls into arrear the lessee will pay an additional 10 shillings pro misericordia.

[157 ] Winchcombe Landboc, i. 239: the sheriff may distrain and take a halfmark for the king’s use. Newminster Cartulary, 98: a penal sum to be paid in subsidium terrae sanctae. See also the precedents of John of Oxford, L. Q. R. vii. 65; Madox, Formulare, p. 359, and Archaeologia, xxviii. p. 228.

[158 ] Rot. Cart. Joh. pp. 191, 221.

[159 ] See Blackstone, Comm. ii. 340. Not one of the commentators, so far as we know, has rightly understood this term in the place where Shakespeare has made it classical (Merch. of Venice, Act i. Sc. 3). Shylock first offers to take a bond without a penalty, and then adds the fantastic penalty of the pound of flesh, ostensibly as a jesting afterthought.

[160 ] Cart. Riev. p. 410: the abbot is to pay one mark on every ten marks for every delay of two months, i.e. sixty per cent per annum “pro recompensatione, interesse, et expensis.” This pact is secured by recognizance in the king’s court. See also Mat. Par. Chron. Maj. iii. 330.

[161 ] See e.g. Registr. Palatin. Dunelmense, i. 91: “super quibus iuramento eorundem vel eorum unius socii, fidem volumus adhiberi.” Madox, Formulare, p. 359: “damnis et expensis quae vel quas se simplici verbo suo dixerint sustinuisse.”

[162 ] Prynne, Records, ii. 1034; see also ibid. 845.

[163 ] Registr. Palatin. Dunelmense, i. 276 (ad 1311): “Et ad haec omnia fideliter facienda obligamus nos et omnia bona nostra mobilia et immobilia, ecclesiastica et mundana, ubicunque locorum inventa, iurisdictioni et coercioni cuiuscunque iudicis ecclesiastici vel civilis quem idem dominus Gilbertus adire vel eligere voluerit in hac parte: exceptioni non numeratae, non traditae, non solutae, nobis pecuniae, et in nostram et ecclesiae nostrae utilitatem non conversae, et omni iuri scripto canonico et civili, ac omni rationi et privilegio per quam vel quod contra praemissa, vel aliquod praemissorum, venire possemus, renunciantes penitus et expresse.” The finest specimen of a renunciatory clause that we have seen is in a bond given in 1293 by the Abbot of Glastonbury to some merchants of Lucca for the enormous sum of £1750; Archaeologia, xxviii. 227; it must have been settled by a learned civilian. A good instance of a bond for the delivery of wool sold by the obligor is in Prynne, Records, iii. 185.

[164 ] Pollock, Principles of Contract, App. Note F; Brunner in Holtzendorff’s Encyklopädie (5th ed.) p. 279.

[165 ] See above, vol. ii. p. 145-46.

[166 ] Note Book, pl. 804.

[167 ] See Bracton, f. 37 b.

[168 ] See above, vol. i. p. 225.

[169 ] Heusler, Institutionen, i. 203.

[170 ] On a roll of 1285 we read how the executors of the countess of Leicester have attorned Baruncino Gualteri of Lucca to receive certain moneys due to her; this in consideration of a loan from Baruncino. When he demands payment he will have to produce “litteras praedictorum executorum dictam assignationem testificantes.” See Archaeologia, xxviii. 282. By this time the king is frequently “assigning” the produce of taxes not yet collected.

[171 ] The clause “vel suo certo attornato [vel nuntio] has litteras deferenti” is quite common. The only English instance that we have seen of a clause which differs from this is in Select Pleas in Manorial Courts, p. 152, where in 1275 a merchant of Bordeaux sues on a bond which contains a promise to pay to him “vel cuicunque de suis scriptum obligatorium portanti.” But here the person who demands the debt can apparently be required to show that he is a partner or the like (de suis) of the creditor named in the bond. For the history of such clauses, see Brunner, Forschungen, p. 524 fol.; Heusler, Institutionen, i. 211; Jenks, Early History of Negotiable Instruments, L. Q. R. ix. 70. Apparently Bracton, f. 41 b, knew these mercantile documents under the name missibilia.

[172 ] Archaeologia, xxviii. 217.

[173 ] Registr. Palatin. Dunelmense, i. 69 (ad 1311): appointment of an agent to contract a large loan.

[174 ] One cannot do homage by attorney; Note Book, pl. 41.

[175 ] Bracton, f. 40. The passage in which Bracton, f. 100 b, tells us “per quas personas acquiritur obligatio” is a piece of inept Romanism. See Bracton and Azo, p. 160.

[176 ] Note Book, pl. 873: a plaintiff claims a wardship sold to her by the defendant’s steward: “et quia ipsa nihil ostendit quod ipse Ricardus [the defendant ] ei aliquid inde concesserit, consideratum est quod Ricardus inde sine die.”

[177 ] Y. B. 33-35 Edw. I. p. 567. Already in Leg. Henr. 23 § 4, we read that the abbot must answer for the acts of the obedientiaries (i.e. the cellarer, chamberlain, sacrist, etc.) of the house. The legal deadness of the monks favours the growth of a law of agency.

[178 ] L. Q. R. iii. 116.

[179 ] See the note appended to the end of this chapter. Mr. Justice Holmes, L. Q. R. i. 162, was the first to point to the right quarter for the origin of “uses.”

[180 ] See above, vol. ii. pp. 160, 185.

[181 ] See Mr. Justice Wright’s statement and authorities, in Pollock and Wright, Possession, p. 191.

[182 ] Lex Salica, tit. 46, De adfathamire. Heusler, Institutionen, i. 215.

[183 ] See above, vol. i. p. 365.

[184 ] Maine, Ancient Law, 6th ed. pp. 170, 305.

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Chapter V: Contract - Sir Frederick Pollock, The History of English Law before the Time of Edward I, vol. 2 [1898]