CONTRACT.-- I.HISTORY.
The doctrine of contract has been so thoroughly remodelled to meet the needs of modern times, that there is less here than elsewhere for historical research.It has been so ably discussed that there is less room here elsewhere for essentially new analysis.But a short of the growth 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.
It is popularly supposed that the oldest forms of contract known to our law are covenant and debt, 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 whether they were not of equally early appearance.
One of these, the promissory oath, is no longer the foundation of any rights in private law.It is used, but as mainly as a solemnity connected with entering upon a public office.The judge swears that he will execute justice according to law, 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 obligation, which presupposes a principal undertaking, and which, so far as the nature of the contract goes, is just like any other.But, as has been pointed out by Laferriere, and very likely by earlier writers, the surety of ancient law was the hostage, and the giving of hostages was by no means confined to international dealings.
In the old metrical romance of Huon of Bordeaux, Huon, having killed the son of Charlemagne, is required by the Emperor to perform various seeming impossibilities as the price of forgiveness.Huon starts upon the task, leaving twelve of his knights as hostages. 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 Huon.I will hang them, and they shall have no ransom." So, when Huon is to fight a duel, by way of establishing the truth or falsehood of a charge against him, 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 near to the giving of similar security in the trial of a cause in court.This was in 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 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 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. 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. The very phrase is copied in the English laws of Henry I. We have seen what this meant in the story of Huon of Bordeaux.The Mirror of Justices 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 keepers, and shall be charged 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 for the undertaking of bail for felony.They are bound "body for body," 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. 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, and it was not requisite that the person bailed 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 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
