This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The action of debt was adopted by the king's courts from Anglo-Saxon law. The Anglo-Saxon oath of defense against debt has already been given. Its existence shows that the action of debt is the oldest of contract actions, except possibly the action on the promise made with pledge of faith. The earliest work on the common law during the Angevin period bears the name of Ranulph de Glanville, Justiciar of England.1 Glanville, writing toward the end of the reign of Henry II, devotes Book 10 to a discussion "of the debts of the laity, arising from different kinds of contracts, namely: from sale, purchase, gift, loan, borrowing, letting out and hiring; and the pledges and gages, whether movable or immovable; and of charters concerning debts." An examination of this chapter shows that as a rule Glanville is treating of contracts which are executed upon the one side, and the remedy sought by the person who has thus executed the contract is to compel payment. His right is thought of as substantially a right to certain property, whether he is seeking to recover specific property, or to recover payment under the contract. The writ which Glanville gives as the proper one to issue when the plaintiff complains to the king's court concerning a debt that is due him is as follows: "The King to the Sheriff, Health. Command N. that justly and without delay he render to R. one hundred marks which he owes him, as he says, and of which he complains that he has unjustly deforced him. And, unless he does so, summon him, by good Summoners, that he be before me or my Justices at Westminster in fifteen days from the Pentecost, to shew wherefore he has not done it. And have there the summoners and this writ. Witness, etc."2 The debt is looked upon as property of which the defendant is deforced, as we today look upon wrongful detention of specific personal property.3 In analogy, probably, to the law of real property, a debt was thought of as a grant. We find, therefore, that by the year 1188 A. D. at the latest, the action of debt was thoroughly established in the king's courts. "Pleas concerning the Debts of the Laity also belong to the king's Crown and Dignity."4 Even the fact that the debtor had pledged his faith could not shake off the jurisdiction of the king's court, whatever claims the ecclesiastical courts might make. "Pleas of debt due with pledge of faith or without pledge of faith are to be in the king's jurisdiction."5 Debt shows its primitive origin in the fact that wager of law is a defense. The commonest form of the wager of law consisted in the defendant's swearing that he did not owe the debt; and a certain number of other witnesses (often twelve) swearing that they believed him. They were practically character witnesses only. Another form of wager of law was defendant's making the oath with certain additional solemnities, often in a certain number of churches. That such defenses were allowed shows that the action of debt is so old that the mode of proof which is characteristic of early Germanic jurisprudence could attach to it and become an inseparable part of it. In later times a forced and artificial attempt to rationalize this method of proof was made. It was said that the plaintiff had voluntarily given credit to the defendant and had thus vouched for his credibility. This late and insufficient explanation was probably not thought of for generations after the wager of law became a defense in the action of debt. Debt lay from the first, as we have seen, for a fixed and liquidated sum of money due and owing from the defendant to the plaintiff.6 It was an action in one sense much narrower than contract, for it omitted all executory agreements. in another sense it was much wider, for it provided a means of recovering a liquidated sum which might be due for some reason outside of contract: such as a penalty imposed by statute.
1 Who wrote this work or how he spelled his name are questions not involved here. The author will, for convenience, be referred to as "Glanville."
2 Glanville, Book X, ch. 2.
3 Pollock & Maitland, History of English Law (2d Ed.), Vol. II, 204, 205.
4 Glanville, Book X, ch. 1.
5 Constitutions of Clarendon, ch. 15.
For translation, see Sel. Doc. Eng. Const. Hist., Adams & Stephens1.
6 Pollock & Maitland, History of English Law (2d Ed.), Vol. II, 210; Black. Com. III, 154.
An interesting incident in English law is the attempt of some of the local courts to free the action of debt from the defenses of wager of law. If the king's courts had been willing or able to do this the field which assumpsit was to occupy in the future would have been clearly narrowed. With a little greater liberality as to the effect of variance in proving the debt so as to conform to the rights and the declaration, the common counts would have been unnecessary. The king's courts, however, made no attempt to adopt this local jurisprudence and the action of debt remained fixed in its original form.
Sec. 19. Other contracts in the law of Henry IL The contracts enforced by the king's courts during the period of which Glanville wrote, which bore some resemblance to our executory contracts, were contracts of warranty.1 Glanville tells us that a solemn pledge of the faith of the defendant will not be received as any proof in the king's court, though breach of contract with a violation of faith, may be proceeded for in the Court Christian;2 other proof is necessary; and this other proof may be by a proper witness, by the duel, or by a charter.3 Apart from this casual reference to sealed instruments as evidence in an action of debt, or in some cases as underlying a warranty, Glanville makes no allusion to the action which was subsequently known as covenant, and based upon an instrument under seal. The remaining kinds of contracts appear to have been outside of the jurisdiction of the king's court. Thus Glanville tells us that if there is a contract for a pledge, and the debtor after having received the loan, should not give the pledge, the king's court is not in the habit of giving protection to private agreements of this description made out of court, or even in any other court than that of the king; and therefore, if such compacts are not observed, the king's court does not interfere.4 So, after a meager outline of letting and hiring, Glanville tells us that he passes briefly over the foregoing contracts, because the king's court does not usually take cognizance of them.5 Glanville therefore recognizes an action for a fixed and liquidated debt and for certain breaches of warranty, but not for a mere promise, however solemn, or for breaches of ordinary contract. It seems clear, from this chapter of Glanville, that many rights were left to the local courts, or the ecclesiastical courts. If the material for writing a complete history of the English Law of Contract shall ever be gathered, it will be found that during the early Angevin period, the king's court selected certain rights to enforce, leaving others to the ecclesiastical and local courts: as the law administered by the courts of the king came to be looked upon as the common law, the law of the other courts dwindled to local custom, and thus passed to oblivion, or was transferred to the realm of religion which we look upon as being outside of law; and that by this means a great mass of rights which once were enforceable in some way, and in some court, became obsolete, and that the subsequent development of the law of contract has been in a great measure a gradual winning back by the common law, as developed by the king's courts and the other courts following their precedents, of the ground thus lost. The more we are able to learn about the law of the local courts and the ecclesiastical courts, the more probable this appears.
1 Glanville, Book X, ch, 15. 2 Glanville, Book X, ch. 12. 3 Glanville, Book X, ch. 12.
4 Glanville, Book X, ch. 8. 5 Glanville, Book X, ch. 18.