Front Page Titles (by Subject) CHAPTER 1: ORIGINS - A Concise History of the Common Law
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CHAPTER 1: ORIGINS - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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In the Anglo-Saxon period a law of contract would have been a luxury. The enforcement of public order and the elementary protection of life and property were as much as the Anglo-Saxon states could undertake with any hope of success. We therefore find that the Anglo-Saxon law regarded contract as somewhat exceptional and only undertook to enforce it under particular circumstances.
CONTRACT IN ANGLO-SAXON LAW
In order to conclude a contract Anglo-Saxon law required numerous external acts, and several of these survived for many centuries. First of all there was the wed, which after the Norman Conquest was called a gage, and consisted of a valuable object which was delivered by the promisor either to the promisee himself or to a third party as security for carrying out the contract. Then, too, there was the borh, who after the Norman Conquest was called a “pledge”, and consisted of personal sureties. It must always be remembered that during the middle ages the word “pledge” means a person and not a thing. In the course of time the valuable gage is frequently replaced by a trifling object of slight value or even by a small sum of money; the gage consequently becomes merely a symbol instead of a valuable security, and the contract is then said to be formal. The Statute of Frauds and later legislation sanctioned the continuance of this type of contract concluded by earnest money.
The occasions upon which it became necessary to contract during the Anglo-Saxon age were mainly of two types. In the first place the solemn ceremonies by which a betrothal was effected were essentially contractual, for the betrothal was in effect a contract for a sale. The Anglo-Saxon marriage on its civil side (which was independent of the Church’s sacramental views) still consisted of the sale by the woman’s kinsfolk of the jurisdiction or guardianship over her (which they called mund) to the prospective husband.1 Even after this ceased to be a strictly commercial transaction, betrothal and marriage ceremonies retained a good many survivals of the older order—Maitland has described the marriage forms of the Church of England as “a remarkable cabinet of legal antiquities”, and the Episcopal Church of America has also retained most of them.1 The betrothal was effected by the delivery of a wed and thus became a “wedding”, that is to say, the conclusion of a contract for a future marriage.
The other great situation in which contract played a part was the conclusion of a treaty subsequent to a homicide. The Anglo-Saxon texts tell us with great particularity the procedure to be followed in order to exact the payment of wer by the slayer to the kinsmen of the victim.2 The sum involved was considerable, and then, as throughout the middle ages, it was difficult to liquidate a large debt in cash at short notice. It therefore became necessary to allow the slayer credit and this was done by assembling every contractual engine known to the law. Spokesmen were appointed, and they negotiated until it seemed prudent to allow the parties to come face to face. Then the treaty was made, the slayer promising to pay and the kinsmen of the slain calling off the feud; until finally the transaction was completed by giving wed and finding borh.
Buying and selling there undoubtedly was, but sale seems always to have been an executed contract, and the Anglo-Saxon law of sale is really little more than a set of police regulations to prevent dealings in stolen goods.3 It is a matter of conjecture whether there was a law of debt; there were, however, a few rules on the vendor’s warranty of title4 and quality5 of goods sold.
A possible third occasion when the Anglo-Saxons made executory contracts was the remarkable procedure to secure the presence of a defendant before the courts; in Anglo-Saxon law this was effected by means which were clearly contractual.6
THE THREE-PARTY CONTRACT
Gradually other matters came to be treated in the same manner and with the same machinery, that is to say, the valuable security of wed and the surety of borh. This borh becomes, in effect, a third party to the proceedings and in many cases the Anglo-Saxon contract is clearly a three-party arrangement.7 Thus we find a party contracting by wed and borh to appear in court, which in those days was regarded in much the same light as a modern submission to arbitration. As Sir William Holdsworth observes:
“The furnishing of the sureties was no mere form; it was a substantial sanction. These sureties were bound primarily to the creditor; and it was to the sureties that he looked for the carrying out of the undertaking. The debtor, according to the Lombard law, gave the wed to the creditor, who handed it to the surety as the sign and proof of his primary liability. There is thus some ground for the view that the institution of suretyship is the base upon which liability for the fulfilment of procedural and eventually other undertakings was founded. Probably these sureties were regarded somewhat in the light of hostages; and English law still retains a trace of this primitive conception in the fact that the bail of our modern criminal law are bound ‘body for body’. As Holmes says, modern books still find it necessary to explain that this undertaking does not now render them liable to the punishment of the principal offender, if the accused is not produced.”1
As we have said, the wed in many cases became a form, very often consisting of a rod or stick which was handed over, or held, as a symbol of the transaction.2 Another form, the hand grasp, seems to have been originally Roman3 and may have been brought to England from the continent by the Church; in the marriage ceremony, for example, both forms are employed (the hand grasp and the gift of a ring), while the ceremony of homage is likewise done by a peculiar form of hand grasp. Typically mercantile forms were earnest money, and a drink.4
PLEDGE OF FAITH
Under the influence of the Church another form appears, the pledge of faith. It is perhaps hardly accurate to regard this as a form, for the object involved was intensely real to the mediaeval mind. The wed in this case was the promisor’s hope of salvation, and it was characteristic of mediaeval thought that this could be treated as a material object, and handed over to a third person as security for a debt or for the performance of a promise. Owing to its sacred character the faith was usually pledged to an ecclesiastic—in important cases to a bishop—but examples are to be found where this holy thing was committed to the strong hands of the sheriff. Later still, less solemn objects could be pledged, such as the promisor’s “honour” or his “word”. The Church always maintained that when faith was pledged she had jurisdiction over all the circumstances of the case, including the contract itself as well as the pledge. If this claim had been established England might very soon have received the canon law of contract, but Henry II, and later Edward I, firmly held out against it; by the Constitutions of Clarendon1 the Church’s jurisdiction over the contract was denied, although the Crown did not object to the Church punishing breach of faith by spiritual censures as a sin. In other words, the Church was permitted to treat breach of faith as a crime, but was forbidden to give a civil remedy.2
CONTRACTS UNDER SEAL
We have said nothing of written contracts in Anglo-Saxon law, and indeed it seems that they were not in general use. When they do appear after the Conquest the contract under seal is treated as a form of the most solemn and binding kind.3 It has even been suggested that there may be a connection between the delivery by the promisor of a sealed document to the promisee, and the older method of delivering a wed. This may be, but still there can be no doubt that the written contract (which after the Conquest, and throughout the year-book period, was called an “obligation”) was mainly of continental origin.
GLANVILL ON DEBT
When we come to Glanvill, we find that the common law of contract is still slight and that the King’s court is not anxious to enlarge it. There was now an action of debt about which he gives a fair amount of seemingly settled law. A new procedure appears, moreover, which will long remain important. This consisted in bringing an action of debt in the King’s court which the defendant declined to contest. Judgment was therefore entered for the plaintiff, who thus acquired the advantage of the royal machinery in enforcing judgment. There can be no doubt that many of these actions were collusive, one might almost say fictitious, and brought for the sole purpose of giving the creditor the benefit of a debt of record.4 This becomes common soon after Glanvill’s day. Glanvill enumerates various sorts of contracts in Roman terms, and correctly defines them, but later on he does not hold himself bound by these definitions.5 He expressly warns us that the King’s court cannot be troubled with “private conventions”. He leaves us a clear impression that the writ of debt is as far as the curia regis will go in the direction of a law of contract.1 In Glanvill’s time, and later, it is clear that the writ of debt is rather a costly luxury; it is certainly framed upon an expensive model, for it is a praecipe quod reddat like the writ of right and demands a sum of money of which the defendant deforces2 the creditor; the King may also demand a handsome commission3 for he is still apt to think rather of the business side of debt-collecting than of his duty to administer public justice, and for a time the action of debt, like other praecipe actions, might perhaps lead to trial by battle.4
BRACTON ON COVENANT
When we come to Bracton we find that he mentions an action which was unknown to Glanvill, namely, the action of covenant. By Bracton’s day it was quite certain that the King’s court had decided not to enforce those contracts which were concluded merely by such forms as the delivery of sticks and other trifling objects; the only form which the King’s courts recognised henceforward being the deed under seal and the recognisance of record. Whereas Glanvill would exclude all “private covenants” from the King’s court, Bracton, on the other hand, assures us that they are justiciable there, provided that they comply with this rule. Bracton has a good many Romanesque generalisations on the matter of contract, but it is clear, at least in this case, that his statements of substantive law accurately represent the practice of the King’s courts, which insisted that to be actionable a contract should be either real, that is to say, money or chattels must have passed, or formal, and here Bracton identifies the deed under seal with the stipulatio. A curious survival from Anglo-Saxon times, however, was the rule that the contract of suretyship, though made verbally (like the Anglo-Saxon borh), was yet enforceable; on the other hand, contracts effected by pledge of faith could not be enforced in the King’s court, nor would the Crown allow them to be enforced in the Church courts—at least in theory. “Although these courts, in spite of royal prohibitions, long continue to exercise much jurisdiction of this kind, it is clear that according to the common law as laid down in the royal courts the real and the formal principles were fast coming to be the only two recognised. . . . Bracton practically admits that there is no such thing as a consensual contract in English law.”5
For marriage as a sale, see Ine, 31. There is a short Anglo-Saxon tract on marriage in Liebermann, Gesetze, i. 442; it is translated in Essays in Anglo-Saxon Law, 171-172.
There is a valuable collection of old English wedding rituals in Freisen, Eheschliessungsrecht Grossbritanniens (Görresgesellschaft, 1919).
Liebermann, Gesetze, i. 392.
IV Edgar, 6-11 (962-963), is typical.
II Æthelred, 8-9 (991).
Oaths, 7 (Liebermann, i. 399).
Above, p. 384.
The system was not confined to England—cf. Lex Salica, 46; Vinogradoff, Collected Papers, i. 150. It may be that espousal was a three-party contract; if so, this might explain the mysterious foresprecher of the Anglo-Saxon text (for whom, see Esmein, Mariage en droit canonique (2nd edn.), i. 201).
Holdsworth, ii. 83, 84. With this compare H. F. Jolowicz, Historical Introduction to Roman Law (2nd edn.), 163. It has also been suggested that the joinder of several debtors in one debt was due to the difficulties which arose if the debtor died before discharge: A. Esmein, L’Intransmissibilité première des créances et des dettes, Nouvelle Revue historique de droit (1887), 48.
Pollock and Maitland, ii. 187.
To other writers it seems Germanic; it is easy to exaggerate the antithesis between Roman and Germanic elements in early law.
Cf. A. Esmein, Le Vin d’appointement, Nouvelle Revue historique de droit (1887), 61 where a commentary is given on Rabelais, Pantagruel, iii. 41.
Constitutions of Clarendon, c. 15 (1164); Glanvill, x. 12; Circumspecte Agatis (1285; the text, authenticity and date of this document have been established by E. B. Graves, English Historical Review, xliii. 1).
The Church continued to encroach on contract, e.g. Rot. Parl., ii. 319 (1373), in spite of the settled common law that all suits in ecclesiastical courts for chattels could be prohibited unless they arose out of matrimonial or testamentary matters.
For some speculations from the thirteenth century about the theory of the deed under seal, see Brevia Placitata (Selden Society), 111, 202-203; cf. Casus Placitorum (Selden Society), lxxxvii, no. 35.
Compare the use of the fine as a conveyance; a later practice was simply to confess the debt without any litigation and have it enrolled on the back of the close roll in Chancery. This was called a recognisance. The Statutes of Merchants and Staples set up special machinery for the recording of debts of this sort, and even allowed land to be taken in execution upon them; above, p. 392.
Glanvill, x. 3.
Glanvill, x. 8, and 18.
For the significance of this word, see Pollock and Maitland, ii. 205. For its use as late as 1367, see Page, Crowland Abbey, 172. As to whether debt was “real” or “personal”, see above, p. 362.
In John’s day, a register of writs regarded one-third as the proper proportion: Pollock and Maitland, i. 554.
Glanvill’s assertion (x. 12) is not supported by the rolls; see Woodbine’s note in his edition, 256-257.
Holdsworth, iii, 416.