按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
s。 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 him at sight； there was at first ＇249＇ no way of securing the indemnity to which the plaintiff was entitled unless the defendant chose to give such security。 /1/
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 a trace of this in the fiction of John Doe and Richard Roe； 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。 /2/ This security was the hostage of earlier days； and later； when the actions for punishment and for redress were separated from each other； became the bail of the criminal law。 The liability was still conceived in the same way as when the bail 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 has committed himself to the power of another by way of surety。 /3/ The very phrase is copied in the English laws of Henry I。 /4/ We have seen what this meant in the story of Huon of Bordeaux。 The Mirror of Justices /5/ says that King Canute used to judge the mainprisors according as the principals when their principals not in judgment； but that King Henry I。 confined Canute's rule to mainprisors who were consenting to the fact。
As late as the reign of Edward III。； Shard； an English judge； after stating the law as it still is； that bail are a prisoner's ＇250＇ keepers； and shall be charged if he escapes； observes； that some say that the bail shall be hanged in his place。 /1/ This was the law in the analogous case of a jailer。 /2/ The old notion is to be traced in the form still given by modern writers for the undertaking of bail for felony。 They are bound 〃body for body；〃 /3/ and modern law…books find it necessary 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。 /4/ 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 authorized to take it。 The signature of the bail was not necessary； /5/ and it was not requisite that the person bailed should bind himself as a party。 /6/
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 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。 His bail； to 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 ＇251＇ 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； looked to the body of the contracting party as the satisfaction。
Debt is another and more popular candidate for the honors of priority。 Since the time of Savigny； the first appearance of contract both in Roman and German law has often been attributed to the case of a sale by some accident 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 tense。 The nature of the particular promise which was first enforced in a given system can hardly lead to any truth of general importance。 But the history of the action of debt is instructive； 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 Glanvill's treatise the action of debt 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 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 ＇252＇ natural opinion； seeing that 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。 /1/
The substance of the plaintiff's claim as set forth 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； 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 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 the defendant's 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； assumpsit； was the survival of this relic of early days。
Finally； in England as in Germany； debt for the detention of money was the twin brother of the action brought for wrongfully withholding 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 far enough back； we are very likely to find some forgotten circumstance of procedure at its source。 Illustrations of this truth have been given already。 The action of debt and the other actions of contract will furnish others。 Debt throws most light upon the doctrine of consideration。
Our law does not enforce every promise which a man may make。 Promises made as ninety…nine promises out of a hundred are； by word o