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 when grain, oil, or money was lent. This cla.s.s did not correspond, except in the most superficial way, with the common-law debts.

But Glanvill adopted the nomenclature, and later writers began to draw conclusions from it. The author of Fleta, a writer by no means always intelligent in following and adopting his predecessors' use of the Roman law, /1/ says that to raise a debt there must be not only a certain thing promised, but a certain thing promised in return. /2/

If Fleta had confined his statement to debts by simple contract, it might well have been suggested by the existing state 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 Bracton.

[267] It only remains to trace the gradual appearance of consideration in the decisions. A case of the reign of Edward III. /1/ seems to distinguish between a parol obligation founded on voluntary payments by the obligee and one founded on a payment at the obligor's request. It also speaks of the debt or "duty" in that case as arising by cause of payments. Somewhat similar language is used in the next reign. /2/ So, in the twelfth year of Henry IV., /3/ there is an approach to the thought: "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 /4/ it was decided that, in such a case, the plaintiff could not recover without having executed the release, which is explained by the editor on the ground that ex nudo pacto non oritur actio. But the most important fact is, that from Edward I. to Henry VI. we find no case where a debt was recovered, unless a consideration had in fact been received.

Another fact to be noticed is, that since Edward III. debts arising from a transaction without writing are said to arise from contract, as distinguished from debts arising from an obligation.

/5/ Hence, when consideration was required as such, it was required in contracts not under seal, whether debts or not. Under Henry VI. quid pro quo became a necessity in all such contracts.

In the third year of that reign /6/ it was objected to au action upon an [268] a.s.sumpsit for not building a mill, that it was not shown what the defendant was to have for doing it. In the thirty-sixth year of the same reign (A.D. 1459), the doctrine appears full grown, and is a.s.sumed to be familiar. /1/

The case turned upon a question which was debated for centuries before it was settled, whether 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 not so far incident to the marriage that it belonged exclusively to the jurisdiction of the spiritual courts, it now touched the purely mundane doubt whether the defendant had had quid pro quo.

It will be remembered that the fact formerly sworn to by the transaction witnesses was a benefit to the defendant, namely, a delivery of the things sold or the money lent to him. Such cases, also, offer the most obvious form of consideration. The natural question is, what the promisor was to have for his promise. /2/ It is only by a.n.a.lysis that the supposed policy of the law is seen to be equally satisfied by a detriment incurred by the promisee. It therefore not unnaturally happened that the judges, when they first laid down the law that there must be quid pro quo, were slow to recognize a detriment to the contractee as satisfying the requirement which had been laid down. In the case which I have mentioned some of the judges were inclined to 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 [269] consideration, because it was a detriment to the promisee. /1/ But the other opinion prevailed, at least for a time, because the defendant had had nothing from the plaintiff to raise a debt. /2/

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, /3/ although not without strong opinions to the contrary, and for a time the precedents were settled. It became established law that an action of debt would only lie upon a consideration actually received by and enuring to 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 VI. and Elizabeth. The theory the same in a.s.sumpsit, /4/ and in equity. /5/ 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, except the liability to damages for a wrong. /6/ It has been shown already that a surety could be sued in debt until the time of Edward III. without a writing, yet a surety receives no benefit from the dealing with his princ.i.p.al. For instance, if a man sells corn to A, [270] and B says, "I will pay if A does not," the sale does B 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, or whether there was any consideration for it or not. But a writing was a more general way of establishing a debt in Glanvill's time than witness, and it is absurd to determine the scope of the action by considering only a single cla.s.s of debts enforced by it. Moreover, a writing for a long time was only another, although more conclusive, mode of proof.

The foundation of the action was the same, however it was proved.

This was a duty or "duity" /1/ to the plaintiff, in other words, that money was due him, no matter how, as any one may see by reading the earlier Year Books. Hence it was, that debt lay equally upon a judgment, /2/ which established such a duty by matter of record, or upon the defendant's admission recorded in like manner. /3/

To sum up, the action of debt has pa.s.sed 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. 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. /4/ If there was a contract to pay money, the only question was how you [271] could prove it. Any such contract, which could be proved by any of the means known to early law, const.i.tuted 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 earlier form of a benefit to the promisor. This applied to all contracts not under seal 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, precedents in debt.

The third stage was reached 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 circ.u.mstances peculiarly connected with 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 theories 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, the remedy for all binding contracts to pay money, but, so far as parol contracts were concerned, could only be used where the consideration was a benefit actually received by the promisor. 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 the other mode of proof which I have mentioned. I mean charters. A charter was simply a writing. As few could write, most people had to authenticate a doc.u.ment [272] 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. /1/ With them seals came in. But as late as Henry II. they were said by the Chief Justice of England to belong properly only to kings and to very great men. /2/ I know no ground for thinking that an authentic charter had any less effect at that time when not under seal than when it was sealed. /3/ It was only evidence either way, and is called so in many of the early cases. /4/ It could be waived, and suit tendered in its place. /5/ Its conclusive effect was due to the satisfactory nature of the evidence, not to the seal. /6/

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, that, for a time, a man was bound by his seal, although it was affixed without his consent. /7/ At last a seal came to be required, in order that a charter should have its ancient effect.

/8/

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 form of action came to be provided. [273] /1/ 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 because he had consented to be, and because there was a writing to prove it, /2/ was now held by force 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 a consideration.

Nowadays, it is sometimes thought more philosophical to say that a 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, everything is form which the law requires in order to make a promise binding over and above the mere expression of the promisor's will. Consideration is a form as much as a seal. The only difference is, that one form is of modern introduction, and has a foundation in good sense, or at least 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 the influence of the latter consideration, the law of covenants 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.

[274] 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.s.sumpsit, which must now be explained.

After the Norman conquest all ordinary actions were 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 trespa.s.s for forcible injuries to the plaintiff's person, or to property in his possession, and so on. But these writs were only issued for 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 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 trespa.s.s, but for which it was proper that a remedy should be furnished. In order to furnish a remedy, the first thing to be done was to furnish a writ. Accordingly, the famous statute of 13 Edward I., c. 24, authorized the office from which the old writs 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 of the writs already in use.

Thus writs of trespa.s.s on the case began to make their appearance; that is, writs stating a ground of complaint [275] to a trespa.s.s, but not quite amounting to a trespa.s.s as it had been sued for in the older precedents. To take an instance which is substantially one of the earliest cases, suppose that a man left a horse with a blacksmith to be shod, 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 writs, because the horse was not in his possession when the damage was done. A strict trespa.s.s property could only be committed against the person in possession of it. It could not be committed by one who was in possession himself. /1/ But as laming the horse was equally a wrong, whether the owner held the horse by the bridle or left it with the smith, and as the wrong was closely a.n.a.logous to a trespa.s.s, although not one, the law gave the owner a writ of trespa.s.s on the case.

/2/

An example like this raises no difficulty; it is as much an action of tort for a wrong as trespa.s.s itself. No contract was stated, and none was necessary on principle. But this does not belong to the cla.s.s of cases to be considered, for the problem before us is to trace the origin of a.s.sumpsit, which is an action of contract. a.s.sumpsit, however, began as an action of trespa.s.s on the case, and the thing to be discovered is how trespa.s.s on the case ever became available for a mere breach of agreement.

It will be well to examine some of the earliest cases in which an undertaking (a.s.sumpsit) was alleged. The first reported in the books is of the reign of Edward III. /3/ The plaintiff alleged that the defendant undertook to carry the plaintiff's horse safely across the Humber, but surcharged [276] the boat, 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 trespa.s.s. But it was answered that the defendant committed a wrongful act 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 reign, and goes further. /1/ The writ set forth that the defendant undertook to cure the plaintiff's horse of sickness (manucepit equum praedicti W. de infirmirate), and did his work so negligently that the horse died. This differs from the case of laming the horse with a nail in two respects. 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 a breach of an undertaking, and that the plaintiff should have brought covenant. The plaintiff replied, that he could not do that without a deed, and that the action was for negligently causing the death of the horse; that is, for a tort, not for a breach of contract. Then, said the defendant, you might have had trespa.s.s. But the plaintiff answered that by saying that the horse was not killed by force, but died per def. de sa cure; and upon this argument the writ was adjudged 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.

[277] Both these cases, it will be seen, were dealt with by the court as pure actions of tort, notwithstanding the allegation of an undertaking on the part of the defendant. But it will also be seen that they are successively more remote from an ordinary case of trespa.s.s. 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 a.n.a.logy could have been found between a wrongful act producing harm, and a failure to act at all?

I attempt to answer it, let me ill.u.s.trate a little further by examples of somewhat later date. Suppose a man undertook to work upon another's house, and by his unskilfulness spoiled his employer's timbers; it would be like a trespa.s.s, although not one, and the employer would sue in trespa.s.s on the case. This was stated as clear law by one of the judges in the reign of Henry IV. /1/ 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 a.n.a.logy to the previous case is marked, but we are a step farther away from trespa.s.s, because the force does not come from the defendant. Yet in this instance also the judges thought that trespa.s.s on the case would lie. /2/ In the time of Henry IV. 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 writ had mentioned "that the thing had been commenced and then by not done, it would have been otherwise."

/3/

[278] I now recur to the question, What likeness could there have been between an omission and a trespa.s.s sufficient to warrant a writ of trespa.s.s on the case? In order to find an answer it is essential to notice that in all the earlier cases the omission occurred in the course of dealing with the plaintiff's person or property, and occasioned 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. The former becomes still more suggestive when it is remembered that this is the first argument or a.n.a.logy to be found upon the subject.

The meaning of that a.n.a.logy is plain. Although a man has a perfect right to stand by and see his neighbor's property destroyed, or, for the matter of that, to watch his neighbor perish for want of his help, yet if he once intermeddles he has 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 bleed to death. It would be murder wilfully to allow death to come to pa.s.s in that way, as much as if the 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 intermeddles, he cannot stop at 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 [279] and leave the consequences to fortune. So, still more clearly, when the ferryman undertook to carry a horse across the Humber, although the water drowned the horse, his remote acts of overloading his boat and pushing it 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 was 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 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 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 bleed, on the one side, and the case of a farrier who receives a sick horse and omits proper precautions, on the other.

/1/

There seem 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 cure so negligently that the horse died. It might not have occurred to [280] the judges that the defendant's conduct possibly went no further than the omission of a series of beneficial measures. It was probably a.s.sumed 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 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 renounce the trust in any reasonable manner. This view derives some support from the issue 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 (cure?). /1/

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, 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 weight of authority to be doubted. /2/ 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 III. a deed was necessary even to bind a surety. It was so [281] a fortiori to 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.

Five years after the action for negligence in curing a horse, which has been stated, an action was brought /1/ 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 forth that the plaintiff's hand had been wounded by one T.B. And hence it appeared that, however much the bad treatment may have aggravated matters, the maiming was properly attributable to T.B., 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 tort would lie. He took issue on the undertaking, a.s.suming that to be essential to the plaintiff's case, 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 maintainable without specialty, because for so small a matter a man cannot always have a clerk at hand to write a deed" (pur faire especially). At the same time the earlier cases which [282]

have been mentioned were cited and relied on, 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 the technical objection. In another connection it seems to have considered the action from the point of view of trespa.s.s. /1/

Whatever questions this case may suggest, the cla.s.s of actions which alleged an undertaking on the part of the defendant continued to be dealt with as actions of tort for a long time after Edward III. The liability was 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 tort that it was afterwards extended, as will be seen.

At the beginning of the reign of Henry VI. it was probably still the law that the action would not lie for a simple failure to keep a promise. /2/ 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. /3/ This suggestion took its most striking form in the early years of Henry VI., when the case of the carpenter leaving a hole in the roof was put. /4/ When the courts had got as far as this, it was easy to go one step farther, and to allow the same effect to an omission at any stage, followed by similar damage.

[283] What is the difference in principle, it was asked, a few years later, /1/ between the cases where it is admitted that the action will lie, and that of a smith who undertakes to shoe a horse and does 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 or accessory to the covenant, and that, if the action would lie on the accessory matter, it would lie on the princ.i.p.al. /2/ It was held on demurrer that an action would lie for not procuring certain releases which the defendant had undertaken to get.

Five years later another case /3/ came up, which was very like that of the farrier in the reign of Edward III. 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 a.s.sumpsit. And now the difference between an omission and an act was clearly stated, the declaration was held not to mean 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 ma.s.s of actions on the case a special cla.s.s arising out of a promise as the source of the defendant's obligation, and it was only a matter of time for that cla.s.s to become a new and distinct [284] 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 would have been required for the undertaking. /1/ But the notion of tort was not at once abandoned. The law was laid down at the beginning of the reign of Henry VII., in accordance with the earlier decisions, and it was said that the action would not lie for a failure to keep a promise, but only for negligence after the defendant had entered upon his undertaking. /2/

So far as the action did not exceed the true limits of tort, 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 torts or not, in which an a.s.sumpsit was alleged, were equally founded on the promise, one of two erroneous conclusions was naturally thought to follow.

Either no a.s.sumpsit needed any quid pro quo, /3/ as there was clearly none in the older precedents, (they being cases of pure tort,) or else those precedents 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 the action was negligent damage to property, a consideration was not necessary. /4/ And there are some traces of the notion that it was always superfluous, as late as Charles I.

[285] In a 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. 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 quo. 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 a.s.sumpsit. /1/

It was, perhaps, the lingering of this idea, and the often repeated notion that an a.s.sumpsit was not a contract, /2/ to which was attributable a more enlarged theory of consideration than prevailed in debt. It was settled that a.s.sumpsit would lie for a mere omission or nonfeasance. The cases which have been mentioned of the reign of Henry VI. were followed by others in the latter years of Henry VII., /3/ and it was never again doubted. An action for such a cause was clearly for a breach of promise, as had been recognized from the time of Edward III. If so, a consideration was necessary. /4/ Notwithstanding occasional vagaries, that also had been settled or taken for granted in many cases of Queen Elizabeth's time. But the b.a.s.t.a.r.d 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 circ.u.mstance may not have been without its influence. It would seem that, in the period when a.s.sumpsit [286] was just growing into its full proportions, there was some little inclination to identify consideration with the Roman causa, taken in its broadest sense. The word "cause" was used for consideration in the early years of Elizabeth, with reference to a covenant to stand seized to uses. /1/ It was used in the same sense in the action of a.s.sumpsit. /2/ In the last cited report, although the princ.i.p.al case only laid down a doctrine that would be followed to-day, 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. /3/ Starting from this authority and the word "cause," the conclusion was soon reached that there was a great difference between a contract and an a.s.sumpsit; and that, whereas in contracts "everything which is requisite ought 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 a.s.sumpsit, the same is not requisite, for it is sufficient if there be a moving cause or consideration precedent; for which cause or consideration the promise was made." /4/