07 - Common Law by Oliver Wendell Holmes, Jr.

Dive into the rich history and intricate details of common law in the United States, exploring its evolution and significance through compelling narratives. (summary by TB27)

Episode Transcript

Speaker 1 (00:00):
The Lecture seven of the Common Law by Oliver Wendell
Holmes Junior. This recording is in the public domain. Contract
one history. The doctrine of contract has been so sorely
remodeled to meet the needs of modern times that there
is less here than elsewhere for historical research. It has

(00:23):
being so aily discussed that there is less room here
elsewhere for essentially new analysis. But a short account of
the gross of modern doctrines, whether necessary or not, will
at least be interesting, while an analysis of their main
characteristics cannot be omitted and may present some new features.

(00:44):
It is popularly supposed that the oldest forms of contract
known to our law are covenant and dead, and they
are of early date, no doubt. But there are other
contracts still in use, which, although they have in some
degree put on modern forms, at least suggest the question

(01:04):
whether they were not of equally early appearance. One of these,
the promissory oaps, is no longer the foundation of any rights.
In private law. It is used, but is mainly as
a solemnity connected with entering upon a public office. The
judge swears that he will execute justice according to law.

(01:26):
The juryman that he will find his verdict, according to
law and the evidence, the newly adopted citizen that he
will bear true faith and allegiance to the government of
his choice. But there is another contract which plays a
more important part. It may perhaps sound paradoxical to mention
the contract of suretyship. Suretyship nowadays is only an accessory

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obligation which presupposes a principle undertaking, and which, so far
as the nature of the contract goes, is just like
any other. But as has been pointed out by la Fairrier,
and very likely by earlier writers, the surety of ancient
law was the hostage, and the giving of hostages was

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by no means confined to international dealings. In the old
medical romance of UoN of Bordeaux, UoN, having killed the
son of Charlemagne, is required by the emperor to perform
various seeming impossibilities as the price of forgiveness. UoN starts
upon the task, leaving twelve of his knights as hostages.

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He returns successful, but at first the Emperor is made
to believe that his orders have been disobeyed. Thereupon Charlemagne
cries out, I summon hither the pledges for UoN I
will hang them, and they shall have no ransom. So
when UoN is to fight a duel by way of

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establishing the truth or falsehood of a charge against each
party begins by producing some of his friends as hostages.
When hostages are given for a duel, which is to
determine the truth or falsehood of an accusation, the transaction
is very mere to the giving of similar security than
the trial of a case in court. This was, in

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fact the usual course of the Germanic procedure. It will
be remembered that the earliest appearance of law was as
a substitute for the private feuds between families or clans.
But while a defendant who did not peaceably submit to
the jurisdiction of the court might be put outside the
protection of the law, so that any man might kill

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him at sight, there was at first no way of
securing the indemnity to which the plaintiff was entitled, unless
the defendant chose to give such security. English customs, which
have been preserved to us, are somewhat more advanced, but
one of the noticeable features in their procedure is the
giving of security at every step. All lawyers will remember

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a trace of this in the fiction of John Doe
and Richard Rowe the plaintiff's pledges to prosecute his action.
But a more significant example is found in the rule
repeated in many of the early laws that a defendant
accused of a wrong must either find security or go
to prison. This security was the hostage of earlier days,

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and later, when the actions for punishment and for address
were separated from each other became the bail of the
criminal law. The liability was still conceived in the same
way as when the bell actually put his own body
into the power of the party secured. One of Charlemagne's
additions to the Lex Salica speaks of a freeman who

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has committed himself to the power of another by way
of surety. The very phrase is copied in the English
Laws of Henry the First. We have seen what this
meant in the story of UoN of Bordeaux. The Mirror
of Justices says that King Canute used to judge the
Mabrison according as the principles, when their principles appeared not

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in judgment, but that King Henry the First confine Cannut's
rule to Matbrison's, who were consenting to the fact. As
late as the reign of Edward the surd Chard. An
English judge, after stating the law as it still is,
that Bell are a prisoner's keepers and shall be charged

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if he escapes, observes that some say that the bail
shall be hanged in his place. This was the law
in the analogous case of a jailer. The old notion
is to be traced in the form still given by
modern writers. The undertaking of Bell for felony their bound
body for body, and modern law books find it necessary

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to state that this does not make them liable to
the punishment of the principal offender if he does not appear,
but only to a fine. The contract also differed from
our modern ideas in the mode of execution. It was
simply a solemn admission of liability in the presence of
the officer authorised to take it. The signature of the

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bell was not necessary, and it was not requisite that
the person Bell should bind himself as a party. But
these peculiarities have been modified or done away with by statute.
And I have dwelt upon the case not so much
as a special form of contract differing from all others,
as because the history of its origin shows one of

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the first appearances of contract in our law. It is
to be traced to the gradual increase of faith in
the honor of a hostage if the case calling for
his surrender should arrive, and to the consequent relaxation of
actual imprisonment. An illustration may be found in the parallel
mode of dealing with the prisoner himself is belle to

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whom his body is supposed to be delivered, have a
right to seize him at any time and anywhere, but
he is allowed to go at large until surrendered. It
will be noticed that this form of contract, like debt,
as dealt with by the Roman law of the twelve Tables,
and for the same motive, although by a different process,

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looked to the body of the contracting party as the satisfaction.
Deb is another and more popular candidate for the honors
of priority. Since the time of SALEGNI, the first appearance
of contract, both in Roman and German law, has often
been attributed to the case of a sale by some accident.

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Remaining incomplete, the question does not seem to be of
great philosophical significance, for to explain how mankind first learned
to promise, we must go to metaphysics and find out
how it ever came to frame a future ten. The
nature of the particular promise which was first enforced in
a given system can hardly lead to any truce of

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general importance. But the history of the action of debt
is instructed, although in a humbler way. It is necessary
to know something about it in order to understand the
enlightened rules which make up the law of contract at
the present time. In Glanville's treatise, the action of debt

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is found already to be one of the well known remedies.
But the law of those days was still in a
somewhat primitive state, and it will easily be imagined that
a form of action which goes back as far as
that was not founded on any very delicate discriminations. It was,
as I shall try to show directly, simply, the general

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form in which any money claim was collected, except unliquidated
claims for damages by force, for which there was established
the equally general remedy of trespass. It has been thought
that the action was adopted from the then more civilized
procedure of the Roman law, a natural opinion, seeing that

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all the early English law writers adopt their phraseology and
classification from Rome. Still, it seems much more probable that
the action is of pure German descent. It has the
features of the primitive procedure which is found upon the continent,
as described by Laband the substance of the plaintiffs claim,

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as said force in the writ of debt, is that
the defendant owes him so much and wrongfully withholds it.
It does not matter for a claim framed like that,
how the defendant's duty arises. It is not confined to contract.
It is satisfied if there is a duty to pay
on any ground. It states a mere conclusion of law,

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not the facts upon which that conclusion is based and
from which the liability arises. The old German complaint was
in like manner a owes me so much. It was
characteristic of the German procedure that the defendant could meet
that complaint by answering in an equally general form that

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he did not owe the plaintiff. The plaintiff had to
do more than simply allege a debt if he would
prevent the defendant from escaping in that way. In England,
if the plaintiff had not something to show for his debt.
The defendant's denial turned him out of court, and even
if he had he was liable to be defeated by

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the defendant swearing with some of his friends to back
him that he owed nothing. The chief reason why debt
was supplanted for centuries by a later remedy assim sit
was the survival of this felic of early days. Finally,
in England, as in Germany, debt for the detention of
money was the twin brother of the action board for

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wrongfully was holding any other kind of chattel. The gist
of the complaint in either case was the same. It
seems strange that this crude product of the infancy of
law should have any importance for us at the present time.
Yet whenever we trace a leading doctrine of substantive law

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far enough back, we are very likely to find some
forgotten circumstance of procedure at its source. Illustrations of this
truce have been given already. The action of debt and
the other actions of contract will furnish others. Debt throws
most like upon the doctrine of consideration. Our law does

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not enforce every promise which a man may make promises
made as ninety nine promises out of one hundred r
by word of mouths or simple writing are not binding
unless there is a consideration for them. That it is,
as it is commonly explained, unless the promisee has either
conferred a benefit on the promise so or or incurred

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a detriment as the inducement to the promise. It has
been thought that this rule was borrowed from Roman law
by the Chancery, and, after undergoing some modification, there passed
into the common law. But this account of the matter
is at least questionable so far as the use of

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words goes. I am not aware that consideration is distinctly
called cause before the reign of elizabeths. In the earlier repause,
it always appears as quid pro quote. Its first appearance,
so far as I know, is in Fletter's account of
the action of debt, And although I am inclined to
believe that Fletter's statement is not to be trusted, a

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careful consideration of the chronological order of the cases in
the yearbooks would show. I think that the doctrine was
fully developed in debt before any mention of it. Inequity
can be found one of the earliest references to what
a promisor was to have for his undertaking was in
the action of a sumsit, but the doctrine certainly did

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not originate there. The first mention of consideration in connection
with equity which I have seen is in the form
of quid pro quote, and occurs after the requirement had
been thoroughly established in debt. The single fact that a
consideration was never acquired for contracts under seal, unless fletter

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is to be trusted against the great weight of nearly
contemporaneous evidence, goes far to show that the rule cannot
have originated on grounds of policy as a rule of
substantive law. And conversely, the coincidence of the doctrine with
the peculiar mode of procedure points very strongly to the
probability that the peculiar requirement and the peculiar procedure were

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connect It will throw light on the question to put
together a few undisputed facts and to consider what consequences
naturally followed. It will therefore be desirable to examine the
action of debt a little further. But it is only
fair to admit at the outset that I offer the

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explanation which follows with great hesitation, and I think that
the full appreciation of the objections which might be urged.
It was observed a moment ago that in order to
recover against a defendant who denied his debt, the plaintiff
had to show something for it, otherwise he was turned
over to the limited jurisdiction of the spiritual tribunals. This

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requirement did not mean evidence in the modern sense. It
meant simply that he must maintain his cause in one
of the ways then recognized by law. These were three,
the duel, writing, and witnesses. The duel need not be discussed,
as it soon ceased to be used in debt and

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has no bearing on what I have to say. Trial
by writing and by witnesses, on the other hand, must
both be carefully studied. It will be convenient to consider
the latter first, and to find out what these witnesses were.
One thing we know at the start they were not
witnesses as we understand the term. They were not produced

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before jury for examination and cross examination, nor did their
testimony depend for its effect on being believed by the
court that heard it. Nowadays, the case is not decided
by the evidence, but by a verdict or finding of facts,
followed by a judgment. The oas of a witness has
no effect unless it is believed. But in the time

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of Henry the second our trial by joy did not exist.
When an oath was allowed to be sworn, it had
the same effect whether it was believed or not. There
was no provision for sifting it by a second body.
In those cases where a trial by witnesses was possible,
if the party called on to go forward could find

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a certain number of men who were willing to swear
in a certain form, there was an end of the matter. Now,
this seems like a more primitive way of establishing a
debt than the production of the defendant's written acknowledgement, and
it is material to discover its origin. The cases in
which this mode of trial was used appear from the

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early books and reports to have been almost wholly confined
to claims arising out of a sale or loan. And
the question at once occurs whether we are not upon
traces of an institution which was already ancient when Glanville wrote.
For centuries before the conquest, Anglo Saxon law had required

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the election of a certain number of official witnesses, two
or three of whom were to be called in to
every bargain of sale. The object for which these witnesses
were established is not commonly supposed to have been the
proof of debts. They go back to a time when
set and similar offenses with a chief ground of litigation,

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and the purpose for which they were appointed was to
afford a means of deciding whether a person charged with
having stolen property had come by it rightfully or not.
A defendant could clear himself of the felony by their
oaths that he had bought or received the thing openly
in the way appointed by law. Having been present at

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the bargain, the witnesses were able to swear to what
they had seen and heard, if any question arose between
the parties. Accordingly, their use was not confined to disposing
of a charge of felony, But that particular service identifies
the transaction witnesses of the Saxon period. Now we know

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that the use of these witnesses did not at once
disappear under Norman influence. They found with their old function
in the laws of William the Conqueror. The language of
Glanville seems to prove that they were still known under
Henry the Second. He says that if a purchaser cannot
summon in the man from whom he bought to warrant

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the property to him and defend the suit, but if
he does, the peril is shifted to the cellar. Then
if the purchaser has sufficient proof of his having lawfully
brought the thing the Legitimur Marcatur swore, it will clear
him of felony. But if he have not sufficient suit,
he will be in danger. This is the law of

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William Over Again, it follows that purchases still used the
transaction witnesses, But Glenville also seems to admit the use
of witness to establish debts, as the transaction witnesses were
formerly available for this purpose. I see no reason to
doubt that they still were, and that he is speaking

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of them here. Also. Moreover, for a long time after
Henry the Second, whenever an action was brought for debt
of which there is no written evidence, the plaintiff, when
asked what he had to show for it, always answered
good suit, and tended his witnesses, who were sometimes examined
by the court. I think it is not straining the

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evidence to infer that the good suit of the later
reports was the descendant of the Saxon Transaction witnesses. As
it has been shown that Glanville's sector was assuming this
step in the argument to have been taken, it will
be well to recall again for a moment the original
nature of the witness oath. It was confined to facts

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within the witness's knowledge by sight and hearing. But as
the purposes for which witnesses were provided only require their
presence when property changed hands, the principal case in which
they could be of service between them the parties to
a bargain was when a debt was claimed by reason
of the delivery of property. The purpose did not extend

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to agreements which were executory on both sides, because there
no question of seft could arise, and Glanville shows that
in his time the King's court did not enforce such agreements. Now,
if the oaths of the sector could only be used
to establish a debt, whether the Transaction witnesses could have sworn,

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it will be seen readily enough how an accident of
procedure may have led to a most important rule of
substantive law, the rule that witnesses could only swear to
facts within their knowledge, coupled with the accident that these
witnesses were not used in transactions which might create a
debt except for a particular fact, namely the delivery of property,

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together with the further accident that this delivery was quit
pro quo, was equivalent to the rule that when a
debt was proved by witnesses, there must be quid pro quote.
But these debts proved by witnesses instead of by deed,
are what we call simple contract debts, and thus, beginning
with debt and subsequently extending itself to other contracts, is

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established our peculiar and most important doctrine that every simple
contract must have a consideration. This was never the law
as to debts or contracts proved in the usual way
by the defendants seal, and the fact that it applied
only to obligations which were formally established by a procedure
of limited use goes far to show that the connection

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with procedure was not accidental. The mode of proof soon changed,
but as late as the reign of Queen Elizabeths we
find a trace of this original connection. It is said
that the common law requires that there should be a
new cause i e. Consideration, where thereof the country may

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have intelligence or knowledge for the trial of it, if
need be so that it is necessary for the public real.
Lord Mansfield showed his intuition of the historic grounds of
our law when he said, I take it that the
ancient notion about the want of consideration was for the
sake of evidence only for when it is reduced into writing,

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as in confidence, specialties, bonds, et cetera. There was no
objection to the want of consideration. If it should be
objected that the preceding argument is necessarily confined to debt,
whereas the requirement of consideration applies equally to all simple contracts,
the answer is that, in all probability, the rule originated

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with the debt and spread from debt to other contracts.
But again, it may be asked whether there were no
other contracts proved by witness except those which have been mentioned.
Were there no contracts proved in that way to which
the accidental consideration was wanting? To this also, there is

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an easy answer. The contracts enforced by the civil courts,
even as late as Henry the Second, were few and simple.
The witness procedure was no doubt bored enough for all
the contracts which were made in early times. Besides those
of sale, loan, and the like which have been mentioned,

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I find but two contractual obligations. These were the warranties
accompanying a sale and suretyship, which was referred to at
the beginning of the lecture of the former warranty of
title was rather regarded as an obligation raised by the
law out of the relation of buyer and seller, than

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as a contract. Other express warranties were matters within the
knowledge of the transaction witnesses, and were sworn to by
them in Saxon times, But in the Norman period warranty
is very little hurdle, except with regard to land, and
then it was decided by the duel. It so wholly

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disappeared except where it was embodied in adeed that it
can have had no influence upon the law of consideration.
I shall therefore assume without more detail, that it does
not bear upon the case. Then, as to the pledge
or shorty, he no longer paid with his body, unless
in very exceptional cases, but his liability was translated into

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money and enforced in an action of debt. This time
honored contract like the other debts of Glanville's time could
be established by witness without writing, and in this case
there was not such a consideration such a benefit to
the promiser as the law required when the doctrine was
first enunciated. But this also is unimportant, because his life

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liability on the oaths of witness came to an end,
as well as that of the warranter. Before the foundations
were laid for the rule which I am seeking to explain,
a writing soon came to be required, as will be
seen in a moment. The result so far is that
the only action of contract in Glanville's time was debt,

(25:23):
that the only debts recovered without writing were those which
have been described, and that the only one of these
for which there is not quit pro quote ceased to
be recoverable in that way by the reign of Edward
the Thurd. But great changes were beginning in the reign
of Henry the Second. More various and complex contracts soon

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came to be enforced. It may be asked, why was
not the scope of the witness oath enlarged, or, if
any better proof were forcecoming, why was not the sector
done away with? And other old testimony admitted. In any event,
what can the law of Henry the second's time have
to do with consideration which was not heard of until

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centuries later. It is manifest that a witness oas which
disposes of a case by the simple fact that it
is sworn, is not a satisfactory mode of proof. A
written admission of debt, produced in corps and sufficiently identified
as issuing from the defendant is obviously much better. The
only weak point about a writing is a means of

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identifying it as the defendants, and this difficulty disappeared as
soon as the use of seals became common. This had
more or less taken place in Glanville's time, and then
all that a party had to do was to produce
the writing and satisfy the court by inspection that the
impression on the wax fitted his opponent's seal. The oas

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of the sector could always be successfully met by wager
of law, that is, by a counter oas on the
part of the day defendant was the same or double
the number of fellow swearers produced by the plaintiff. But
a writing proved to be the defendants could not be contradicted.
For if a man said he was bound. He was bound.

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There was no question of consideration, because there was as
yet no such doctrine. He was equally bound if he
acknowledged all obligation in any place having a record, such
as the superior courts by which his acknowledgment could be proved. Indeed,
to this day some securities are taken simply by an

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all admission before the clerk of a court noted by
him in his papers. The advantage of the writing was
not only that it furnished better proof in the old cases,
but also that it made it possible to enforce obligations
for which there would otherwise have been no proof at all.
What has been said sufficiently explains the preference of proof

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by writing to proof by the old fashioned witness. But
there were other equally good reasons why the latter should
not be extended beyond its ancient limits. The transaction witnesses
were losing their statutory and official character. Already in Glanville's time,
the usual modes of proving a debt were by the

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duel or by writing. One hundred years later, Bracton shows
that the sector had degenerated to the retainers and household
of the party, and he says that their oath raises
but a slight presumption. Moreover, a new mode of trial
was growing up, which, although it was not made use
of in these cases for a good while, must have

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tended to diminish the estimate set on the witness oaths.
By contrast, this was the beginning of our trial by jury.
It was at first an inquest of the neighbours most
likely to know about a disputed matter of fact. They
spoke from their own knowledge, but they were selected by
an officer of the corps instead of by the interested party,

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and were intended to be impartial. Soon witnesses were sudden
before them, not as of old to the case by
their oath, but to aid the inquest to find a
verdict by their testimony. With the advent of this enlightened procedure,
the sector soon ceased to decide the case, and it

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may well be asked why it did not disappear and
leave no traces. Taking into account the conservatism of the
English law and the fact that before deeds came in
the only debts for which there had been a remedy
were debts proved by the transaction witnesses, it would not
have been a surprise to find the tender of suit

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persisting in those cases. But there was another reason, still
more imperative. The defense in debt where there was no
deed was by wager of law. A section of Magna
Carta was interpreted to prohibit a man's being put to
his law on the plane his own statement without good witness.
Hence the statute required witness, that is the sector in

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every case of debt where the plaintiff did not rely
upon a writing. Thus it happened that suit continued to
be tendered in those cases where it had been of old,
and as the defendant, if he did not admit the
debt in such cases, always waged his law. It was
long before the inquest got much foothold to establish a

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debt which arose merely by way of promise or acknowledgment,
and for which there had formerly been no mode of trial,
provided you must have a writing. The new form of
proof which introduced it into the law. The rule was
laid down by parole. The party is not obliged. But
the old debts were not conceived of as raised by

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a promise. They were a duty springing from the plaintiff's
receipt of property, a fact which could be seen and
sworn to. In these cases, the old law maintained aimed,
and even extended itself a little by strict analogy. But
the undertaking of a surety, in whatever form it was closed,
did not really arise out of any such fact. It

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had become of the same nature as other promises, and
it was soon doubted whether it should not be proved
by the same evidence. By the reign of Edward the Third,
it was settled that a deed was necessary, except where
the customs of particular cities had kept the old law
in force. This reign may be taken as representing the

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time when the divisions and rules of procedure were established,
which have lasted until the present day. It is therefore
worsewhile to repeat and sum up the condition of the law.
At that time, it was still necessary that the sector
should be tended in every action of debt, for which
no writing was produced. For this, as well as for

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other reasons which have been mentioned, the sphere of such
actions was not materire enlarged beyond those cases which had
formerly been established by the witness oath. As surety ship
was no longer one of these, they became strictly limited
to cases in which the debt arose from the seat
of a quid pro quo. Moreover, there was no other

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action of contract which could be maintained without a writing.
New species of contracts were now enforced by an action
of covenant, for there a deed was always necessary. At
the same time, the sector had shrunk to a form.
Although it was still argued that its function was more
important in contract than elsewhere, it could no longer be

(32:38):
examined before the court. It was a mere survival, and
the transaction witness had ceased to be an institution. Hence
the necessity of tendering the witness. Oaths did not fix
the limit of debt upon a simple contract except by tradition,
and it is not surprising to find that the action
was slightly extended by analogy from its scope. In Glanville's time,

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the debt remained substantially at the point which I have indicated,
and no new action available for simple contracts was introduced
for a century. In the meantime, the inversion which I
have explained took place, and what was an accident of
procedure had become a doctrine of substantive law. The change
was easy when the debts, which could be enforced without

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deed or sprung from a benefit to the debtor. The
influence of the Roman law, no doubt aided in bringing
about this result. It will be remembered that in the
reign of Henry, the second most simple contracts and debts
for which there was not the evidence of deed or
witness were left to be enforced by the ecclesiastical courts

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so far as their jurisdiction extended. Perhaps it was this
circumstance which led Glanville and his successes to apply the
terminology of the civilians to common law debts. But whether
he borrowed it from the ecclesiastical courts or went directly
to the fountain head, certain it is that Glanville makes
use of the classification and technical language of the corpus

(34:08):
Ouris throughout his tenth book. There were certain special contracts
in the Roman system, called real, which bound the contractor
either to return a certain thing put into his hands
by the contractee, as in a case of lease or loan,
or to deliver other articles of the same kind, as

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when grain, oil, or money was lent. This class did
not correspond except in the most superficial way with the
common law debts, but Glanvale adopted the nomenclature, and later
writers began to draw conclusions from it. The USIR Fletter,
a writer by no means always intelligent in following and

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adopting his predecessor's use of the Roman law, says that
to raise a debt there must be not only a
certain thing promised, but a certain thing promised in return.
If Fletter had confined his statements to debts by simple contract,
it might well have been suggested by the existing state

(35:11):
of the law. But as he also required a writing
and a seal in addition to the matter given or
promised in return, the doctrine laid down by him can
hardly have prevailed at any time. It was probably nothing
more than a slight vagary of reasoning based upon the
Roman elements which he borrowed from Racton. It only remains

(35:33):
to trace the gradual appearance of consideration in the decisions.
The case of the Reign of Edward, the Thurd seems
to distinguish between a parole obligation founded on voluntary payments
by the oblige and one founded on a payment at
the obliger's request. It also speaks of the debt or
duty in that case as arising by cause of payments.

(35:57):
Somewhat similar language is used in the next reign. So
in the twelfth year of Henry the Force, there is
an approach to the sword. If money is promised to
a man for making a release, and he makes the release,
he will have a good action of debt in the matter.
In the next reign, it was decided that in such
a case the plaintiff could not recover without having executed

(36:20):
the release, which is explained by the editor on the
ground that ex noodle pactor non ochitur actual. But the
most important fact is that from Edward the First to
Henry the six we find no case where a debt
was recovered unless a consideration had in fact been received.

(36:41):
Another fact to be noticed is that, since Edward the served,
debts arising from a transaction without writing are said to
arise from contract, as distinguished from debts arising from an obligation. Hence,
when consideration was required as such, it was required in
con tracts not under seal, whether debts or not. Under

(37:04):
Henry the six quid pro quo became a necessity in
all such contracts. In the third year of that reign,
it was objected to an action upon an assumpcate for
not building a mel that it was not shown what
the defendant was to have for doing it. In the
thirty six year of the same reign ad. Fourteen fifty nine,

(37:27):
the doctrine appears for grown and is assumed to be familiar.
The case turned upon a question which was debated for
centuries before it was settled. While the debt would lie
for a sum of money promised by the defendant to
the plaintiff if he would marry the defendant's daughter. But
whereas formerly the debate had been whether the promise was

(37:49):
not so far incident to the marriage that it belonged
exclusively to the jurisdiction of the spiritual courts, it now
touched the purely mundaine doubt whether the defendant had had
quidpro cro. It will be remembered that the fact formally
sworn to by the transaction witnesses, was a benefit to
the defendant, namely a delivery of the things sold or

(38:13):
the money lent to him. Such cases also offer the
most obvious form of consideration. The natural question is what
the promiser was to have for his promise. It is
only by analysis that the supposed policy of the law
is seen to be equally satisfied by a detriment incurred

(38:33):
by the promise. See It therefore, not unnaturally happened that
the judges, when they first laid down the law that
there must be a quid pro crow, were slow to
recognize a detriment to the contracte as satisfying the requirement
which I had been laid down. In the case which
I have mentioned. Some of the judges when inclined to

(38:53):
hold that getting rid of his daughter was a sufficient
benefit to the defendant to make him a debtor for
the money which he promised, And there was even some
hint of the opinion that marrying the lady was a
consideration because it was a detriment to the promisee. But
the other opinion prevailed, at least for a time, because

(39:14):
the defendant had had nothing from the plaintiff to raise
a debt. So it was held that a service rendered
to a third person upon the defendant's request and promise
of a reward would not be enough, although not without
strong opinions to the contrary, And for a time the
presidents were settled it became established law that an action

(39:37):
of debt would only lie upon a consideration actually received
by and inuring too the benefit of the debtor. It was, however,
no peculiarity of either the action or contract of debt
which led to this view, but the imperfectly developed theory
of consideration prevailing between the reigns of Henry the six

(39:59):
and Elizabeth's. The theory the same in assimsit and in equity.
Wherever consideration was mentioned, it was always as quid pro
quo as what the contractor was to have for his contract. Moreover,
before consideration was ever heard of, debt was the time
honored remedy on every obligation to pay money enforced by law,

(40:22):
except the liability to damages for a wrong. It has
been shown already that a surety could be sued in
debt until the time of Edward the third without writing.
Yet a surety receives no benefit from the dealing with
his principle. For instance, if a man sells corn to A,
and B says I will pay if A does not,

(40:45):
the sale does be no good so far as appears
by the terms of the bargain. For this reason, debt
cannot now be maintained against a surety in such a case.
It was not always so, it is not so to
this day. If there is an obligation under seal. In
that case, it does not matter how the obligation arose,

(41:06):
or whether there was any consideration for it or not.
But a writing was a more general way of establishing
a debt in Glanville's time than a witness, and it
is absurd to determine the scope of the action by
considering only a single class of debts enforced by it. Moreover,
a writing for a long time was only another, although

(41:27):
more conclusive mode of proof. The foundation of the action
was the same. However it was proved, this was a
duty or duty to the plaintiff, in other words, that
money was due him, no matter how as anyone may
see by reading the earlier yearbooks. Hence it was the

(41:47):
debt lay equally upon a judgment which established such a
duty by matter of record, or upon the defendant's admission
recorded in like manner. To sum up the action of
debt as passed through three stages. At first, it was
the only remedy to recover money due, except when the
liability was simply to pay damages. For a wrongful act.

(42:11):
It was closely akin to Indeed, it was but a
branch of the action for any form of personal property
which the defendant was bound by contract or otherwise to
hand over to the plaintiff. If there was a contract
to pay money, the only question was how you could
prove it. Any such contract which could be proved by

(42:32):
any of the means known to early law, constituted a debt.
There was no theory of consideration, and therefore, of course
no limit to either the action or the contract based
upon the nature of the consideration received. The second stage
was when the doctrine of consideration was introduced in its

(42:52):
earlier form of a benefit to the promise or. This
applied to all contracts not underseal while it prevailed, but
it was established while debt was the only action for
money payable by such contracts. The precedents are, for the
most part, precedence in debt. The third stage was reached

(43:13):
when a larger view was taken of consideration and it
was expressed in terms of detriment to the promisee. This
change was a change in substantive law, and logically it
should have been applied throughout, but it arose in another
and later form of action under circumstances peculiarly connected with

(43:33):
that action, as will be explained hereafter, the result was
that the new doctrine prevailed in the new action, and
the old in the old, and that what was really
the anomaly of inconsistent series carried out side by side,
disguised itself in the form of a limitation upon the
action of debt. That action did not remain, as formerly

(43:56):
the remedy for all binding contracts to pay money, but
so far as Peroll contracts were concerned, could only be
used where the consideration was a benefit actually received by
the promise. Law with regard to obligations arising in any
other way, it has remained unchanged. I must now devote
a few words to the effect upon our law of

(44:18):
the other mode of proof which I have mentioned. I
mean charters. A charter was simply a writing as view
could write. Most people had to authenticate a document in
some other way, for instance by making their mark. This
was in fact the universal practice in England until the
introduction of Norman customs. With them seals came in, but

(44:41):
as late as Henry the Second they were said by
the Chief Justice of England to belong properly only to
kings and to very great men. I know no ground
for thinking that an authentic charter had any less effect
at that time were not under seal than when it
was sealed. It was only evidence either way, and is
called so. In many of the early cases it could

(45:04):
be waived and suit tended in its place. Its conclusive
effect was due to the satisfactory nature of the evidence,
not to the seal. But when seals came into use,
they obviously made the evidence of the charter better in
so far as the seal was more difficult to forge
than a stroke of the pen. Seals acquired such importance

(45:26):
that for a time a man was bound by his seal,
although it was affixed without his consent. At last, a
seal came to be required in order that a charter
should have its ancient effect. A covenant or contract under
seal was no longer a promise well proved. It was
a promise of a distinct nature for which a distinct

(45:46):
form of action came to be provided. I have shown
how the requirement of consideration became a rule of substantive law,
and also why it never had any foothold in the
domain of covenants. The exception of covenants from the requirement
became a rule of substantive law. Also, the man who
had set his hand to a charter from being bound

(46:09):
because he had consented to be and because there was
a writing to prove it, was now held by the
use of the seal and by deed alone, as distinguished
from all other writings. And to maintain the integrity of
an inadequate theory, a seal was said to import a consideration. Nowadays,
it is sometimes thought more philosophical to say that a

(46:31):
covenant is a formal contract which survives alongside of the
ordinary consensual contract, just as happened in the Roman law.
But this is not a very instructive way of putting
it either. In one sense, every single form which the
law requires in order to make a promise binding, over
and above the mere expression of the promisur as well consideration,

(46:54):
is a form as much as a seal. The only
difference is that one form is of more modern introduction
and has a foundation in good sense order least falls
in with our common habits of thought, so that we
do not notice it, whereas the other is a survival
from an older condition. Of the law, and is less
manifestly sensible or less familiar. I may add that under

(47:19):
the influence of the latter consideration, the law of covenance
is breaking down. In many states. It is held that
a mere scroll or flourish of the pen is a
sufficient seal. From this, it is a short step to
abolish the distinction between sealed and unsealed instruments altogether, and
this has been done in some of the Western states.

(47:41):
While covenants survive in a somewhat weak old age, and
debt has disappeared, leaving a vaguely disturbing influence behind it,
the whole modern law of contract has grown up through
the medium of the action of a simpsit, which must
now be explained. The Norman Conquest, all ordinary actions were

(48:02):
begun by a writ issuing from the king and ordering
the defendant to be summoned before the court to answer
the plaintiff. These writs were issued as a matter of
course in the various well known actions from which they
took their names. There were writs of debt and of covenant.
There were writs of trespass for forcible injuries to the

(48:24):
plaintiff's person or to property in his possession and so on.
But these writs were only issued with the actions which
were known to the law, and without a writ, the
court had no authority to try a case. In the
time of Edward I, there were but few of such actions.
The cases in which you could recover money of another

(48:47):
fell into a small number of groups, for each of
which there was a particular form of suing and stating
your claim. These forms had ceased to be adequate. Thus
there were many cases which did not exactly fall within
the definition of a trespass, but for which it was
proper that a remedy should be furnished. In order to

(49:10):
furnish a remedy, the first thing to be done was
to furnish a writ. Accordingly, the famous statute of thirteen
Edward c. Twenty four authorized the office from which the
old wits issued to frame new ones in cases similar
in principle to those for which writs were found, and
requiring like remedy, but not exactly falling within the scope

(49:34):
of the writs already in use. Thus, writs of trespass
on the case began to make their appearance. That is,
writz stating a ground of complaint to a trespass but
not quite amounting to a trespass, as it had been
sued for in the order precedence. To take an instance,
which is substantially one of the earliest cases. Suppose that

(49:56):
a man left a horse with a blacksmith to be shot,
and he negligently drove a nail into the horse's foot.
It might be that the owner of the horse could
not have one of the old rits because the horse
was not in his possession when the damage was done.
A stract trespass property could only be committed against the
person in possession of it. It could not be committed

(50:19):
by one who was in possession himself. But as laming
the horse was equally a wrong, whether the owner held
the horse by the bridle or left it with dismiss
and as the wrong was closely analogous to a trespass,
although not one, the law gave the owner a writ
of trespass on the case. An example like this raises

(50:40):
no difficulty. It is as much an action of tort
for a wrong as trespass itself. No contract was stated,
and none was necessary on principle. But this does not
belong to the class of cases to be considered for
the problem before us is to trace the origin of
as simpsit, which is an action of contract. A sum sit, however,

(51:04):
began as an action of trespass on the case, and
the thing to be discovered is how trespass on the
case ever became available for mere breach of agreement. It
will be well to examine some of the earliest cases
in which an undertaking as sum sit was alleged. The
first reported in the books is of the reign of

(51:24):
Edward the Third. The plaintiff alleged that the defendant undertook
to carry the plaintiff's horse safely across the Humber, but
surcharged the vote by reason of which the horse perished.
It was objected that the action should have been either
covenant for breach of the agreement, or else trespass, but
it was answered that the defendant committed a wrongful act

(51:47):
when he surcharged the boat, and the objection was overruled.
This case, again, although an undertaking was stated, hardly introduced
a new principle. The force did not proceed directly from
the defendant, to be sure, but it was brought to
bear by the combination of his overloading and then pushing
into the stream. The next case is of the same

(52:10):
rain and goes further. Though It set forth that the
defendant undertook to cure the plaintiff's horse of sickness manuchier
pi de combe predicti de infamiliarity, and did this work
so negligently that the horse died. This differs from the
case of laaning the horse with a nail in two respects.

(52:30):
It does not charge any forcible act, nor indeed any
act at all, but a mere omission. On the other hand,
it states an undertaking which the other did not. The
defendant at once objected that this was an action for
breach of an undertaking, and that the plaintiff should have
brought covenant. The plaintiff replied that he could not do

(52:52):
that without a deed, and that the action was for
negligently causing the deaths of the horse, that is, for
a tour, not for breach of contract. Then said the defendant,
you might have had trespass. But the plaintiff answered that
by saying that the horse was not killed by force,
but died ber death des sa couri. And upon this argument,

(53:14):
though it was a judged good thorpe j saying that
he had seen a man indicted for killing a patient
by want of care default in curing whom he had
undertaken to cure. Both these cases, it will be seen,
were dealt with by the court as pure actions of
talt notwithstanding the allegation of an undertaking on the part

(53:36):
of the defendant. But it will also be seen that
they are successively more remote from an ordinary case of trespass.
In the case last stated, especially, the destroying force did
not proceed from the defendant in any sense. And thus
we are confronted with the question what possible analogy could
have been found between a wrongful act producing harm and

(53:58):
a failure to act at all? Before I attempt to
answer it, let me illustrate a little further by examples
of somewhat later date. Suppose a man undertook to work
upon another's house, and by his unskillfulness, spoiled his employer's timbers.
It would be like a trespass, although not one, and

(54:18):
the employer would sue in trespass on the case. This
was stated as clear law by one of the judges
in the reign of Henry the fourth. But suppose that
instead of directly spoiling the materials, the carpenter had simply
left a hole in the roof through which the rain
had come in and done the damage. The analogy to
the previous case is marked, but we are a step

(54:41):
farther away from trespass because the force does not come
from the defendant. Yet in this instance also the judges
saw the trespass on the case would lie in the
time of Henry. The force the action could not have
been maintained for a simple refusal to build, according to agreement.
But it was suggested by the court that if the

(55:03):
writ had mentioned that the thing had been commenced and
then by not done, it would have been otherwise. I
now occur to the question what likeness could there have
been between an omission and a trespass sufficient to warrant
a writ of trespass on the case. In order to
find an answer, it is essential to notice that in

(55:23):
all the earlier cases, the omission occurred in the course
of dealing with the plaintiff's person or property, and occasion
damage to the one or the other. In view of
this fact, Thorpe's reference to indictments for killing a patient
by want of care and the later distinction between neglect
before and after the task is commenced, are most pregnant.

(55:45):
The former becomes still more suggestive when it is remembered
that this is the first argument or analogy to be
found upon the subject. The meaning of that analogy is plain.
Although a man has a perfect right to stand by
and see his neighbor property destroyed, or, for the matter
of that, to watch his neighbor perish for want of
his help, yet if he wants into medals, he has

(56:08):
no longer the same freedom. He cannot withdraw at will.
To give a more specific example, if a surgeon from
benevolence cuts the umbilical cord of a newly born child,
he cannot stop there and watch the patient plead to death.
It would be murder wilfully to allow death to come
to pass in that way, as much as if the

(56:28):
intention had been entertained at the time of cutting the cord,
It would not matter whether the wickedness began with the
act or with the subsequent omission. The same reasoning applies
to civil liability. A carpenter need not go to work
upon another man's house at all, but if he accepts
the other's confidence and inter medals, he cannot stop at

(56:50):
will and leave the roof open to the weather. So
in the case of the farrier, when he had taken
charge of the horse, he could not stop at the
critical moment and leave the consequences to fortune. So still
more clearly, when the ferryman undertook to carry a horse
across the Humber, although the war to drown the horse,
his remote acts of overloading his boat and pushing it

(57:13):
into the stream in that condition occasioned the loss, and
he was answerable for it. In the foregoing cases, the
duty was independent of contract, or at least were so
regarded by the judges who decided them, and stood on
the general rules applied to human conduct. Even by the
criminal law. The immediate occasion of the damage complained of

(57:34):
may have been a mere omission letting in the operation
of natural forces. But if you connect it as it
was connected in fact with the previous dealings, you have
a course of action and conduct which, taken as a whole,
has caused or occasioned the harm. The objection may be
urged to be sure that there is a considerable step

(57:55):
from holding a man liable for the consequences of his
acts which he might have prevented, to making him answerable
for not having interfered with the course of nature when
he neither set it in motion nor opened the door
for it to do harm. And that there is just
that difference between making a hole in a roof and
leaving it open, or cutting the cord and letting it

(58:17):
lead on the one side, and the case of a
failure who receives a sick horse and amids proper precautions
on the other. There seemed to be two answers to this. First,
it is not clear that such a distinction was adverted
to by the court which decided the case which I
have mentioned. It was alleged that the defendant performed his

(58:38):
cure so negligently that the horse died. It might not
have occurred to the judges that the defendant's conduct possibly
went no further than the omission of a series of
beneficial measures. It was probably assumed to have consisted of
a combination of acts and neglects, which, taken as a whole,
amounted to an improper dealing with the thing. In the

(59:00):
next place, it is doubtful whether the distinction is a
sound one on practical grounds. It may well be that,
so long as one allows a trust to be reposed
in him, he is bound to use such precautions as
are known to him, although he has made no contract,
and is at liberty to announce the trust in any
reasonable manner. This view derives some support from the issue

(59:23):
on which the parties went to trial, which was that
the defendant performed the cure as well as he knew.
How without this that the horse died for default of
his care. But it cannot be denied that the allegation
of an undertaking conveyed the idea of a promise as
well as that of an entering upon the business in hand. Indeed,

(59:44):
the latter element is sufficiently conveyed, perhaps without it. It
may be asked, therefore, whether the promise did not count
for something in raising a duty to act, So far
as this involves the consequence that the action was in
fact for the breach of a contract. The answer has
been given already, and is sustained by too great a

(01:00:04):
weight of a society to be doubted. To bind the
defendant by a contract, an instrument under seal was essential,
as has been shown already. Even the ancient sphere of
debt had been limited by this requirement, and in the
time of Edward the thurd a deed was necessary even
to bind a surety. It was so a fortiori to

(01:00:25):
introduce a liability upon promises not enforced by the ancient law. Nevertheless,
the suggestion was made at an early date that an
action on the case for damage by negligence, that is,
by an omission of proper precautions, alleging an undertaking by
way of inducement, was in fact an action of contract.

(01:00:45):
Five years after the action for negligence in curing a
horse which has been stated, an action was brought in
form against a surgeon, alleging that he undertook to cure
the plaintiff's hand, and that by his negligence the hand
was maimed. There was, however, this difference, that it was
set force that the plaintiff's hand had been wounded by
one t B. And hence it appeared that, however much

(01:01:09):
the bad treatment may have aggravated matters, the maiming was
properly attributable to TB, and that the plaintiff had an
action against him. This may have led the defendant to
adopt the course he did, because he felt uncertain whether
any action of torque would lie He took issue on
the undertaking, assuming that to be essential to the plaintiff's case,

(01:01:30):
and then objected that the writ did not show the
place of the undertaking, and hence was bad because it
did not show whence the inquest should be summoned to
speak to that point. The writ was adjudged bad on
that ground, which seems as if the court sanctioned the
defendant's view. Indeed, one of the judges called it an
action of covenant, and said that of necessity it was

(01:01:52):
maintainable without specialty, because for so small a matter a
man cannot always have a clerk at hand to write
a d for fair especialty. At the same time, the
earlier cases which have been mentioned were cited and relied
on them, and it is evident that the court was
not prepared to go beyond them or to hold that
the action could be maintained on its merits. Apart from

(01:02:15):
the technical objection. In another connection, it seems to have
considered the action from the point of view of trespass.
Whatever questions this case may suggest, the class of actions
which alleged an undertaking on the part of the defendant
continued to be dealt with as actions of Talt. For
a long time after Edward the Thurd, the liability was

(01:02:37):
limited to damage to person or property arising after the
defendant had entered upon the employment, and it was mainly
through reasoning drawn from the law of Taught that it
was afterwards extended, as will be seen. At the beginning
of the reign of Henry the six, it was probably
still the law that the action would not lie for

(01:02:58):
simple failure to keep a promise, but it had been
several times suggested, as has been shown, that it would
be otherwise if the omission or neglect occurred in the
course of performance and the defendant's conduct had been followed
by physical damage. This suggestion took its most striking form
in the early years of Henry the six, when the

(01:03:18):
case of the carpenter leaving a hole in the roof
was put when the courts had got as far as
since it was easy to go one step farther and
to allow the same effect to an omission at any
stage followed by similar damage. What is the difference in principle?
It was asked a few years later between the cases
where it is admitted that the action will lie and

(01:03:40):
that of a smiths who undertakes to show a horse,
and as not by reason of which the horse goes lame,
or that of a lawyer who undertakes to argue your case, and,
after thus inducing you to rely upon him, neglects to
be present, so that you lose it. It was said
that in the earlier instances, the duty was dependent on

(01:04:01):
or accessory to the covenant, and that if the action
would lie on the accessory matter, it would lie on
the principle. It was held on demurrh that an action
would lie for not procuring certain releases which the defendant
had undertaken to get. Five years later, another case came up,
which was very like that of the Farrire in the

(01:04:21):
reign of Edward the Thurd. It was alleged that the
defendant undertook to cure the plaintiff's horse and applied medicine
so negligently that the horse died. In this, as in
the earlier case, the issue was taken on the assumpsit,
and now the difference between an omission and an act
was clearly stated. The declaration was held not to mean

(01:04:42):
necessarily anything more than an omission, and it was said
that but for the undertaking the defendant would have owed
no duty to act. Hence, the allegation of the defendant's
promise was material, and an issue could properly be taken
on it. This decision distinctly separated from the matter of
actions on the case a special class arising out of

(01:05:03):
a promise as the source of the defendant's obligation, and
it was only a matter of time for that class
to become a new and distinct action of contract. Had
this change taken place at once, the doctrine of consideration,
which was first definitely enunciated about the same time, would
no doubt have been applied, and a quid pro quo

(01:05:23):
would have been required for the undertaking. But the notion
of tort was not at once abandoned. The law was
laid down at the beginning of the reign of Henry
the sevenths in accordance with the earlier decisions, and it
was said that the action would not lie for failure
to keep up promise, but only for negligence after the
defendant had entered upon his undertaking. So far as the

(01:05:46):
action did not exceed the true limits of taught, it
was immaterial whether there was a consideration for the undertaking
or not. But when the mistake was made of supposing
that all cases, whether proper taughts or not, in which
an assumpsit was alleged, were equally founded on the promise,
one of two erroneous conclusions was naturally thought to follow. Either,

(01:06:08):
no assumpsit needed any quid pro quo, as there was
clearly none in the older precedence, they be in cases
of pure talt or elst. Those presidents were wrong, and
a quid pro quo should be alleged in every case.
It was long recognized, with more or less understanding of
the true limit, that in cases where the gist of

(01:06:28):
the action was negligent damage to property, a consideration was
not necessary, and there are some traces of the notion
that it was always superfluous, as late ast Charles the first.
In the case of that reign, the defendant retained an
attorney to act in a suit for a third person,
and promised to pay him all his fees and expenses.

(01:06:49):
The attorney rendered the service and then brought debt. It
was objected that debt did not lie because there was
no contract between the parties and the defendant had not
any quid pro The court adopted the argument and said
that there was no contract or consideration to ground this action,
but that the plaintiff might have sued in assumsit. It

(01:07:11):
was perhaps the lingering of this idea, and the often
repeated notion that an assumsit was not a contract to
which was attributable a more enlarged theory of consideration than
prevailed in debt. It was settled that assumseit would lie
for mere omission or nonfeasance. The cases which have been
mentioned of the reign of Henry the six were followed

(01:07:31):
by others in the latter years of Henry the sevens,
and it was never again doubted an action for such
a cause was clearly for breach of promise, as had
been recognized from the time of Edward the Third. If
so a consideration was necessary, notwithstanding occasional vagaries that also
had been settled or taken for granted in many cases

(01:07:52):
of Queen Elizabeth's time. But the bastard origin of the action,
which gave rise to the doubt how far any consideration
at all was necessary, made it possible to hold considerations
sufficient which had been in debt. Another circumstance may not
have been without its influence. It would seem that in
the period when assumsit was just growing into its full proportions,

(01:08:14):
there was some little inclination to identify consideration was the
Roman causer. Taken in its broadest sense, the word cause
was used for consideration in the early years of Elizabeth's
was referenced to a covenant to stand seized to uses.
It was used in the same sense in the action
of assimsit in the last Sighted report. Although the principal

(01:08:37):
case only laid down a doctrine that would be followed today,
there was also stated an anonymous case, which was interpreted
to mean that an executed consideration furnished upon request but
without any promise of any kind, would support a subsequent
promise to pay for it. Starting from this authority and
the word cause, the conclusion was soon reached that the

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there was a great difference between a contract and an assumsit,
and that whereas in contracts everything which is requisite or
to concur and meet together viz. The consideration of the
one side and the sale or the promise on the
other side to maintain an action upon an assumsit, the
same is not to requisite, for it is sufficient if

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there be a moving cause or consideration president, for which
cause or consideration the promise was made. Thus, where the
defendant retained the paintiff to be to his aunt at
ten shillings a week, it was held that assumsit would
lie because the service, though not beneficial to the defendant,
was a charge or detriment to the paintiff. The old

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questions were re argued, and views which were very near
prevailing in debt under Henry the Six prevailed in assumpsit.
Under Elizabeth and James, a surety could be sued in assumsit,
although he had ceased to be liable in debt. There
was the same remedy on a promise in consideration that
the plaintiff would marry the defendant's daughter. The illusion that

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a sumsit thus extended did not mean contract could not
be kept up. In view of this admission and of
the ancient presidents, the law oscillated for a time in
the direction of reward as the true essence of consideration.
But the other view prevailed, and thus in fact made
a change in the substantive law. A simple contract to

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be recognized as binding by the courts of Henry the
Six must have been based upon a benefit to the debtor.
Now a promise might be enforced in consideration of a
detriment to the promise, saying, but in the true archaic
spirit the doctrine was not separated or distinguished from the
remedy which introduced it, and thus debt in modern times
has presented the altered appearance of a duty limited to

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cases where the consideration was of a special sort. The
later fortunes of a sumsit can be briefly told. It
introduced by lateral contracts because a promise was a detriment
therefore a sufficient consideration for another promise. It supplanted debt
because the existence of the duty to pay was sufficient

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consideration for a promise to pay, or rather because before
a consideration was acquired, and as soon as as sim
sit would lie for nonfeasance, this action was used to
avoid the defendant's wager of law. It vastly extended the
number of actionable contracts which had formerly been confined to
debts and covenants, whereas nearly any promise could be sued

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in a sumsit, and it introduced a theory which has
had a great influence on modern law, that all the
liabilities of a bailey are founded on contract. Whether the
prominence which was thus given to contract as the foundation
of legal rights and duties had anything to do with
the similar prominence which it soon acquired in political speculation.

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It is beyond my province to inquire. End of Lectures
seven