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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 of mouth or simple writing； are not binding unless there is a consideration for them。 That is； as it is commonly explained； unless the promisee has either conferred a benefit on the promisor； or incurred a detriment； as the inducement to the promise。
It has been thought that this rule was borrowed from Roman law by the Chancery； and； after undergoing some modification there； passed into the common law。
But this account of the matter is at least questionable。 So far as the use of words goes； I am not aware that consideration is distinctly called cause before the reign of Elizabeth； in the earlier reports it always appears as quid pro quo。 Its first appearance； so far as I know； is in Fleta's account of the action of debt； /1/ and although I am inclined to believe that Fleta's statement is not to be trusted； a careful consideration of the chronological order of the cases in the Year Books will show； I think； that the doctrine was fully developed in debt before any mention of it in equity can be found。 One of the earliest ＇254＇ references to what a promisor was to have for his undertaking was in the action of assumpsit。 /1/ But the doctrine certainly did not originate there。 The first mention of consideration in connection with equity which I have seen is in the form of quid pro quo； /2/ and occurs after the requirement had been thoroughly established in debt。 /3/
The single fact that a consideration was never required for contracts under seal； unless Fleta is to be trusted against the great weight of nearly contemporaneous evidence； goes far to show that the rule cannot have originated on grounds of policy as a rule of substantive law。 And conversely； the coincidence of the doctrine with a peculiar mode of procedure points very strongly to the probability that the peculiar requirement and the peculiar procedure were connected。 It will throw light on the question to put together a few undisputed facts； and to consider what consequences naturally followed。 It will therefore be desirable to examine the action of debt a little further。 But it is only fair to admit； at the outset； that I offer the explanation which follows with great hesitation； and； I think； with a full appreciation of the objections which might be urged。
It was observed a moment ago； that； in order to recover against a defendant who denied his debt； the plaintiff had to show something for it； otherwise he was turned over to the limited jurisdiction of the spiritual tribunals。 /4/ This requirement did not mean evidence in the modern sense。 It meant simply that he must maintain his cause in one of the ways then recognized by law。 These were three； the ＇255＇ duel； a writing； and witnesses。 The duel need not be discussed； as it soon ceased to be used in debt； and has no bearing on what I have to say。 Trial by writing and by witnesses； on the other hand； must both be carefully studied。 It will be convenient to consider the latter first and to find out what these witnesses were。
One thing we know at the start； they were not witnesses as we understand the term。 They were not produced before a jury for examination and cross… examination； nor did their testimony depend for its effect on being believed by the court that heard it。 Nowadays； a case is not decided by the evidence； but by a verdict； or a finding of facts； followed by a judgment。 The oath of a witness has no effect unless it is believed。 But in the time of Henry II。 our trial by jury did not exist。 When an oath was allowed to be sworn it had the same effect； whether it was believed or not。 There was no provision for sifting it by a second body。 In those cases where a trial by witnesses was possible； if the party called on to go forward could find a certain number of men who were willing to swear in a certain form； there was an end of the matter。
Now this seems like a more primitive way of establishing a debt than the production of the defendant's written acknowledgement； and it is material to discover its origin。
The cases in which this mode of trial was used appear from the early books