Historical Law-Tracts. Henry Home, Lord Kames
for the business of a merchant cannot be carried on to any extent, or with any success, without previous agreements.
As far back as we can trace the Roman law, we find its authority interposed in behalf of sale, location, and other contracts deemed essential to commerce. And that commerce was advanced in Rome before action was sustained upon such contracts, is evident from the contract of society or partnership put in that class. Other covenants were not regarded, but left upon the <68> obligation of the natural law. One general exception there was: A promise or paction, of whatever nature, executed in a solemn form of words, termed stipulatio, was countenanced with an action. This solemn manner of agreement, testified the deliberate purpose of the parties; and at the same time removed all ambiguity as to their meaning, to which language in its infancy is liable(1). <69>
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Courts of law were a salutary invention in the social state; for by them individuals are compelled to do their duty. This invention, as commonly happens, was originally confined within narrow bounds. To take under the protection of a court, natural obligations of every sort, would, in a new experiment, have been reckoned too bold. It was deemed sufficient to enforce, by legal authority, those particular duties that contribute most to the well-being of society. A regulation so important gave satisfaction; and, while recent, left no desire or thought of any farther improvement. This <70> fairly accounts for what is observed above, that in the infancy of law, promises and agreements which make a figure are countenanced with an action, while others of less utility are left upon conscience. But here it must be remarked, that this distinction is not made where the effect of a promise or agreement is not to create an obligation, but to dissolve it. Pacta liberatoria have, in all ages, been enforced by courts of law. The reason commonly assigned, that liberty is more favourable than obligation, is not satisfactory; for no pactions merit more favour than those which promote the good of society, by obliging individuals to serve and aid each other. The following reason will perhaps be reckoned more solid. There is a wide difference betwixt refusing action even where the claim is just, and sustaining action upon an unjust claim. With respect to the former, all that can be complained of is, that the court is less useful than it might be: The latter would be countenancing, or rather enforcing, iniquity. It is not surprising to find courts confined within too narrow bounds, in point of utility: But it would be strange indeed if it were made their duty to enforce wrong of any sort. Thus where a court refuses to make effectual a gratuitous promise, there is no harm done; matters are left where they were before courts were instituted. But it is undoubtedly unjust to demand payment of a <71> debt after it is discharged, though by a gratuitous promise only. And therefore,
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when in this case an action for payment is brought, the court has no choice: It cannot otherwise avoid supporting this unjust claim, but by sustaining the gratuitous promise as a good defence against the action(2).
One case excepted, similar to the Roman stipulatio, of which afterward, it appears to me that no naked promise or covenant was, by our forefathers, countenanced with an action. A contract of buying and selling was certainly not binding by the municipal law of this island, unless the price was paid, or the thing sold delivered. There was locus poenitentiae even after arles were given; and change of mind was attended with no other penalty, but loss of the arles, or value of them.* Our ancient writers are not so express upon other covenants; but as permutation, or in place of it buying and <72> selling, are of all the most useful covenants in common life, we may reasonably conclude, that if an agreement of this kind was not made effectual by law, other agreements would not be more privileged.
The case hinted above as an exception, is where an agreement is made or acknowledged in the face of court, taken down in writing, and recorded in the books of the court.† For though this was done chiefly to make evidence, the solemn manner of making the agreement probably had the same effect with stipulatio in the Roman law, which tied both parties, and absolutely barred repentance. And indeed the recording a transaction would be an idle solemnity, if the parties were not bound by it.
The occasion of introducing this form, I conjecture to be what follows. In difficult or intricate cases, it was an early practice for judges to interpose, by pressing a transaction betwixt the parties; of which there are instances in the court of session, not far back. This practice brought about many agreements betwixt litigants, which were always recorded in the court where the process depended. The record was compleat evidence of the fact; and
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if either party broke the concord or agreement, a decree went against him without other proof.* The <73> singular advantages of a concord or transaction thus finished in face of court, moved individuals to make all their agreements, of any importance, in that form. And indeed, while writing continued a rare art, skilful artists, except in courts of justice, were not easily found readily to take down a covenant in writing.
So much upon the first head, How far naked covenants and promises were effectual by our old law. What proof of a bargain was required by a court of justice, comes next to be examined. Evidence may justly be distinguished into natural and artificial. To the former belong proof by witnesses, by confession of the party, and by writ. To the latter belong those extraordinary methods invented in days of gross superstition, for bringing out the truth in doubtful cases, such as the trial by fire, the trial by water, and singular battle.
Before writing was invented, or rather while, like painting, it was in the hands of a few artists, witnesses were relied on for evidence in all cases. Witnesses were in particular admitted for proving a debt to what ever extent, as well as for proving payment. But experience discovered both the danger and uncertainty of such evidence; which therefore was confined within narrower bounds gradually as the art of writing became more common. It was first established, that two witnesses were not sufficient <74> to prove a debt above forty shillings; and that there must be a number of witnesses in proportion to the extent of the debt. Afterward, when the art of writing was more diffused, the King’s courts took upon them to confine the proof of debt to writing, and the confession of the party, leaving inferior judges to follow the common law, by admitting debt to be proved by witnesses. This seems to be the import of Quon. Attach. cap. 81. and the only proper sense that it can bear. The burghs adhered the longest to the common law,† by admitting two witnesses to prove debt to any extent(3).
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The King’s courts assumed the like privilege in other actions. Though they admitted witnesses to prove that a contract of sale, for example, or location, was performed in part, in order to be a foundation for decreeing full performance; yet they permitted nothing to be <75> proved by witnesses, but what is customary in every covenant of the sort. If any singular paction was alledged, such an irritancy ob non solutum canonem, witnesses were not admitted to prove such pactions, more than to prove a claim of debt. The proof was confined to writ, or confession of the party.*
The second species of natural evidence, is, confession of the party; which, in the strictest sense, must be a confession; that is, it must be voluntary. For, by the original law of this island, no man was bound to bear testimony against himself, whether in civil or criminal causes. So stands the common law of England to this day; though courts of equity take greater liberty. Our law was the same, till it came to be established, through the influence of the Roman law, that in civil actions, the facts set forth in the libel or declaration may be referred to the defendant’s testimony, and he be held as confessed if he refuse to give his oath. The transition was easy from civil matters, to such slight delinquencies as are punished with pecuniary penalties in a civil court; and in these also, by our present practice, the person accused is obliged to give evidence against himself.
The discovery of truth by oath of party, denied in civil courts, was, in the ecclesiastical court, obtained by a circuit. An action for <76> payment could not be brought before the ecclesiastical court; but in a religious view a complaint could be brought for breach of faith and promise. The party, as in the presence of God, was bound to declare, whether he had not made the promise. The truth being thus drawn from him, he was of course enjoined, not only to do penance, but also to satisfy the complainer. This was in effect a decree, which was followed with