[247] LECTURE VII.
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 [248] 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, /1/ 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. /2/ 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." /3/ 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 [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 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 and reports to have been almost wholly confined to
claims arising out of a sale or loan. And the question at once
occurs, whether we are not upon traces of an institution which
was already ancient when Glanvill wrote. For centuries before the
Conquest Anglo-Saxon law /1/ had required the election of a
certain [256] number of official witnesses, two or three of whom
were to be called in to every bargain of sale. The object for
which these witnesses were established is not commonly supposed
to have been the proof of debts. They go back to a time when
theft and similar offences were the chief ground of litigation,
and the purpose for which they were appointed was to afford a
means of deciding whether a person charged with having stolen
property had come by it rightfully or not. A defendant could
clear himself of the felony by their oath that he had bought or
received the thing openly in the way appointed by law.
Having been present at the bargain, the witnesses were able to
swear to what they had seen and heard, if any question arose
between the parties. Accordingly, their use was not confined to
disposing of a charge of felony. But that particular service
identifies the transaction witnesses of the Saxon period. Now we
know that the use of these witnesses did not at once disappear
under Norman influence. They are found with their old function in
the laws of William the Conqueror. /1/ The language of Glanvill
seems to prove that they were still known under Henry II. He says
that, if a purchaser cannot summon in the man from whom he
bought, to warrant the property to him and defend the suit, (for
if he does, the peril is shifted to the seller,) then if the
purchaser has sufficient proof of his having lawfully bought the
thing, de legittimo marcatu suo, it will clear him of felony. But
if he have not sufficient suit, he will be in danger. /2/ This is
the law of William over again. It follows that purchasers still
used the transaction witnesses.
But Glanvill also seems to admit the use of witness to establish
debts. /1/ As the transaction witnesses were formerly available
for this purpose, I see no reason to doubt that they still were,
and that he is speaking of them here also. /2/ Moreover, for a
long time after Henry II., whenever an action was brought for a
debt of which there was no written evidence, the plaintiff, when
asked what he had to show for it, always answered "good suit,"
and tendered his witnesses, who were sometimes examined by the
court. /3/ I think it is not straining the evidence to infer that
the "good suit" of the later reports was the descendant of the
Saxon transaction witnesses, as it has been shown that Glanvill's
secta was. /4/
Assuming this step in the argument to have been taken, it will be
well to recall again for a moment the original nature of the
witness oath. It was confined to facts within the witnesses'
knowledge by sight and hearing. But as the purposes for which
witnesses were provided only required their presence when
property changed hands, the principal case in which they could be
of service between the parties [258] to a bargain was when a debt
was claimed by reason of the delivery of property. The purpose
did not extend to agreements which were executory on both sides,
because there no question of theft could arise. And Glanvill
shows that in his time the King's Court did not enforce such
agreements. /1/ Now, if the oath of the secta could only be used
to establish a debt where the transaction witnesses could have
sworn, it will be seen, readily enough, how an accident of
procedure may have led to a most important rule of substantive
law.
The rule that witnesses could only swear to facts within their
knowledge, coupled with the accident that these witnesses were
not used in transactions which might create a debt, except for a
particular fact, namely, the delivery of property, together with
the further accident that this delivery was quid pro quo, was
equivalent to the rule that, when a debt was proved by witnesses
there must be quid pro quo. But these debts proved by witnesses,
instead of by deed are what we call simple contract debts, and
thus beginning with debt, and subsequently extending itself to
other contracts, is established our peculiar and most important
doctrine that every simple contract must have a consideration.
This was never the law as to debts or contracts proved in the
usual way by the defendant's seal, and the fact that it applied
only to obligations which were formerly established by a
procedure of limited use, [259] goes far to show that the
connection with procedure was not accidental.
The mode of proof soon changed, but as late as the reign of Queen
Elizabeth we find a trace of this original connection. It is
said, "But the common law requires that there should be a new
cause (i. e. consideration), whereof the country may have
intelligence or knowledge for the trial of it, if need be, so
that it is necessary for the Public-weal." /1/ Lord Mansfield
showed his intuition of the historical grounds of our law when he
said, "I take it that the ancient notion about the want of
consideration was for the sake of evidence only; for when it is
reduced into writing, as in covenants, specialties, bonds, etc.,
there was no objection to the want of consideration." /2/
If it should be objected that the preceding argument is
necessarily confined to debt, whereas the requirement of
consideration applies equally to all simple contracts, the answer
is, that in all probability the rule originated with debt, and
spread from debt to other contracts.
But, again, it may be asked whether there were no other contracts
proved by witness except those which have been mentioned. Were
there no contracts proved in that way to which the accidental
consideration was wanting? To this also there is an easy answer.
The contracts enforced by the civil courts, even as late as Henry
II., were few and simple. The witness procedure was no doubt
broad enough for all the contracts which were made in early
times. Besides those of sale, loan, and the like, which have been
mentioned, I find but two contractual [260] obligations. These
were the warranties accompanying a sale and suretyship which was
referred to at the beginning of the Lecture. Of the former,
warranty of title was rather regarded as an obligation raised by
the law out of the relation of buyer and seller than as a
contract. Other express warranties were matters within the
knowledge of the transaction witnesses, and were sworn to by them
in Saxon times. /1/
But in the Norman period warranty is very little heard of, except
with regard to land, and then it was decided by the duel. It so
wholly disappeared, except where it was embodied in a deed, that
it can have had no influence upon the law of consideration. I
shall therefore assume, without more detail, that it does not
bear upon the case.
Then as to the pledge or surety. He no longer paid with his body,
unless in very exceptional cases, but his liability was
translated into money, and enforced in an action of debt. This
time-honored contract, like the other debts of Glanvill's time,
could be established by witness without a writing, /2/ and in
this case there was not such a consideration, such a benefit to
the promisor, as the law required when the doctrine was first
enunciated. But this also is unimportant, because his liability
on the oath of witness came to an end, as well as that of the
warrantor, before the foundations were laid for the rule which I
am seeking to explain. A writing soon came to be required, as
will be seen in a moment.
The result so far is, that the only action of contract in
Glanvill's time was debt, that the only debts recovered [261]
without writing were those which have been described, and that
the only one of these for which there was not quid pro quo ceased
to be recoverable in that way by the reign of Edward III.
But great changes were beginning in the reign of Henry II. More
various and complex contracts soon came to be enforced. It may be
asked, Why was not the scope of the witness oath enlarged, or, if
any better proof were forthcoming, why was not the secta done
away with, and other oral testimony admitted? In any event, what
can the law of Henry II.'s time have to do with consideration,
which not heard of until centuries later?
It is manifest that a witness oath, which disposes of a case by
the simple fact that it is sworn, is not a satisfactory mode of
proof. A written admission of debt produced in court, and
sufficiently identified as issuing from the defendant, is
obviously much better. The only weak point about a writing is the
means of identifying it as the defendant's, and this difficulty
disappeared as soon as the use of seals became common. This had
more or less taken place in Glanvill's time, and then all that a
party had to do was to produce the writing and satisfy the court
by inspection that the impression on the wax fitted his
opponent's seal. /1/ The oath of the secta could always be
successfully met by wager of law, /2/ that is, by a counter oath
the part of the defendant, with the same or double the number of
fellow-swearers produced by the plaintiff. But a writing proved
to be the defendant's could not be contradicted. [262] /1/ For if
a man said he was bound, he was bound. There was no question of
consideration, because there was as yet no such doctrine. He was
equally bound if he acknowledged all obligation in any place
having a record, such as the superior courts, by which his
acknowledgment could be proved. Indeed, to this day some
securities are taken simply by an oral admission before the clerk
of a court noted by him in his papers. The advantage of the
writing was not only that it furnished better proof in the old
cases, but also that it made it possible to enforce obligations
for which there would otherwise have been no proof at all.
What has been said sufficiently explains the preference of proof
by writing to proof by the old-fashioned witness oath. But there
were other equally good reasons why the latter should not be
extended beyond its ancient limits. The transaction witnesses
were losing their statutory and official character. Already in
Glanvill's time the usual modes of proving a debt were by the
duel or by writing. /2/ A hundred years later Bracton shows that
the secta had degenerated to the retainers and household of the
party, and he says that their oath raises but a slight
presumption. /3/
Moreover, a new mode of trial was growing up, which, although it
was not made use of in these cases /4/ for a good while, must
have tended to diminish the estimate set on the witness oath by
contrast. This was the beginning of our trial by jury. It was at
first an inquest of the neighbors [263] most likely to know about
a disputed matter of fact. They spoke from their own knowledge,
but they were selected by an officer of the court instead of by
the interested party, and were intended to be impartial. /1/ Soon
witnesses were summoned before them, not, as of old, to the case
by their oath, but to aid the inquest to find a verdict by their
testimony. With the advent of this enlightened procedure, the
secta soon ceased to decide the case, and it may well be asked
why it did not disappear and leave no traces.
Taking into account the conservatism of the English law, and the
fact that, before deeds came in, the only debts for which there
had been a remedy were debts proved by the transaction witnesses,
it would not have been a surprise to find the tender of suit
persisting in those cases. But there was another reason still
more imperative. The defence in debt where there was no deed was
by wager of law. /2/ A section of Magna Charta was interpreted to
prohibit a man's being put to his law on the plaintiff's own
statement without good witness. /3/ Hence, the statute required
witness--that is, the secta--in every case of debt where the
plaintiff did not rely upon a writing. Thus it happened that suit
continued to be tendered in those cases where it had been of old,
/4/ and as the defendant, if he did not admit the debt in such
cases, always waged his law, it was long before the inquest got
much foothold.
To establish a debt which arose merely by way of promise or
acknowledgment, and for which there had formerly [264] been no
mode of trial provided, you must have a writing, the new form of
proof which introduced it into the law. The rule was laid down,
"by parol the party is not obliged." /1/ But the old debts were
not conceived of as raised by a promise. /2/ They were a "duty"
springing from the plaintiff's receipt of property, a fact which
could be seen and sworn to. In these cases the old law maintained
and even extended itself a little by strict analogy.
But the undertaking of a surety, in whatever form it was clothed,
did not really arise out of any such fact. It had become of the
same nature as other promises, and it was soon doubted whether it
should not be proved by the same evidence. /3/ By the reign of
Edward III., it was settled that a deed was necessary, /4/ except
where the customs of particular cities had kept the old law in
force. /5/
This reign may be taken as representing the time when the
divisions and rules of procedure were established which have
lasted until the present day. It is therefore worth while to
repeat and sum up the condition of the law at that time.
It was still necessary that the secta should be tendered in every
action of debt for which no writing was produced. For this, as
well as for the other reasons which have been mentioned, the
sphere of such actions was not materially enlarged beyond those
cases which had formerly been established by the witness-oath.
As suretyship was no [265] longer one of these, they became
strictly limited to cases in which the debt arose from the
receipt of a quid pro quo. Moreover there was no other action of
contract which could be maintained without a writing. New species
of contracts were now enforced by an action of covenant, but
there a deed was always necessary. At the same time the secta had
shrunk to a form, although it was still argued that its function
was more important in contract than elsewhere. It could no longer
be examined before the court. /1/ It was a mere survival, and the
transaction witness had ceased to be an institution. Hence, the
necessity of tendering the witness oath did not fix the limit of
debt upon simple contract except by tradition, and it is not
surprising to find that the action was slightly extended by
analogy from its scope in Glanvill's time.
But debt remained substantially at the point which I have
indicated, and no new action available for simple contracts was
introduced for a century. In the mean time the inversion which I
have explained took place, and what was an accident of procedure
had become a doctrine of substantive law. The change was easy
when the debts which could be enforced without deed all sprung
from a benefit to the debtor.
The influence of the Roman law, no doubt, aided in bringing about
this result. It will be remembered that in the reign of Henry II.
most simple contracts and debts for which there was not the
evidence of deed or witness were left to be enforced by the
ecclesiastical courts, so far as their jurisdiction extended. /2/
Perhaps it was this circumstance [266] which led Glanvill and his
successors to apply the terminology of the civilians to
common-law debts. But whether he borrowed it from the
ecclesiastical courts, or went directly to the fountain-head,
certain it is that Glanvill makes use of the classification and
technical language of the Corpus Juris throughout his tenth book.
There were certain special contracts in the Roman system called
real, which bound the contractor either to return a certain thing
put into his hands by the contractee, as in a case of lease or
loan, or to deliver other articles of the same kind, as when
grain, oil, or money was lent. This class did not correspond,
except in the most superficial way, with the common-law debts.
But Glanvill adopted the nomenclature, and later writers began to
draw conclusions from it. The author of Fleta, a writer by no
means always intelligent in following and adopting his
predecessors' use of the Roman law, /1/ says that to raise a debt
there must be not only a certain thing promised, but a certain
thing promised in return. /2/
If Fleta had confined his statement to debts by simple contract,
it might well have been suggested by the existing state of the
law. But as he also required a writing and a seal, in addition to
the matter given or promised in return, the doctrine laid down by
him can hardly have prevailed at any time. It was probably
nothing more than a slight vagary of reasoning based upon the
Roman elements which he borrowed from Bracton.
[267] It only remains to trace the gradual appearance of
consideration in the decisions. A case of the reign of Edward
III. /1/ seems to distinguish between a parol obligation founded
on voluntary payments by the obligee and one founded on a payment
at the obligor's request. It also speaks of the debt or "duty" in
that case as arising by cause of payments. Somewhat similar
language is used in the next reign. /2/ So, in the twelfth year
of Henry IV., /3/ there is an approach to the thought: "If money
is promised to a man for making a release, and he makes the
release, he will have a good action of debt in the matter." In
the next reign /4/ it was decided that, in such a case, the
plaintiff could not recover without having executed the release,
which is explained by the editor on the ground that ex nudo pacto
non oritur actio. But the most important fact is, that from
Edward I. to Henry VI. we find no case where a debt was
recovered, unless a consideration had in fact been received.
Another fact to be noticed is, that since Edward III. debts
arising from a transaction without writing are said to arise from
contract, as distinguished from debts arising from an obligation.
/5/ Hence, when consideration was required as such, it was
required in contracts not under seal, whether debts or not. Under
Henry VI. quid pro quo became a necessity in all such contracts.
In the third year of that reign /6/ it was objected to au action
upon an [268] assumpsit for not building a mill, that it was not
shown what the defendant was to have for doing it. In the
thirty-sixth year of the same reign (A.D. 1459), the doctrine
appears full grown, and is assumed to be familiar. /1/
The case turned upon a question which was debated for centuries
before it was settled, whether debt would lie for a sum of money
promised by the defendant to the plaintiff if he would marry the
defendant's daughter. But whereas formerly the debate had been
whether the promise was not so far incident to the marriage that
it belonged exclusively to the jurisdiction of the spiritual
courts, it now touched the purely mundane doubt whether the
defendant had had quid pro quo.
It will be remembered that the fact formerly sworn to by the
transaction witnesses was a benefit to the defendant, namely, a
delivery of the things sold or the money lent to him. Such cases,
also, offer the most obvious form of consideration. The natural
question is, what the promisor was to have for his promise. /2/
It is only by analysis that the supposed policy of the law is
seen to be equally satisfied by a detriment incurred by the
promisee. It therefore not unnaturally happened that the judges,
when they first laid down the law that there must be quid pro
quo, were slow to recognize a detriment to the contractee as
satisfying the requirement which had been laid down. In the case
which I have mentioned some of the judges were inclined to hold
that getting rid of his daughter was a sufficient benefit to the
defendant to make him a debtor for the money which he promised;
and there was even some hint of the opinion, that marrying the
lady was a [269] consideration, because it was a detriment to the
promisee. /1/ But the other opinion prevailed, at least for a
time, because the defendant had had nothing from the plaintiff to
raise a debt. /2/
So it was held that a service rendered to a third person upon the
defendant's request and promise of a reward would not be enough,
/3/ although not without strong opinions to the contrary, and for
a time the precedents were settled. It became established law
that an action of debt would only lie upon a consideration
actually received by and enuring to the benefit of the debtor.
It was, however, no peculiarity of either the action or contract
of debt which led to this view, but the imperfectly developed
theory of consideration prevailing between the reigns of Henry
VI. and Elizabeth. The theory the same in assumpsit, /4/ and in
equity. /5/ Wherever consideration was mentioned, it was always
as quid pro quo, as what the contractor was to have for his
contract.
Moreover, before consideration was ever heard of, debt was the
time-honored remedy on every obligation to pay money enforced by
law, except the liability to damages for a wrong. /6/ It has been
shown already that a surety could be sued in debt until the time
of Edward III. without a writing, yet a surety receives no
benefit from the dealing with his principal. For instance, if a
man sells corn to A, [270] and B says, "I will pay if A does
not," the sale does B no good so far as appears by the terms of
the bargain. For this reason, debt cannot now be maintained
against a surety in such a case.
It was not always so. It is not so to this day if there is an
obligation under seal. In that case, it does not matter how the
obligation arose, or whether there was any consideration for it
or not. But a writing was a more general way of establishing a
debt in Glanvill's time than witness, and it is absurd to
determine the scope of the action by considering only a single
class of debts enforced by it. Moreover, a writing for a long
time was only another, although more conclusive, mode of proof.
The foundation of the action was the same, however it was proved.
This was a duty or "duity" /1/ to the plaintiff, in other words,
that money was due him, no matter how, as any one may see by
reading the earlier Year Books. Hence it was, that debt lay
equally upon a judgment, /2/ which established such a duty by
matter of record, or upon the defendant's admission recorded in
like manner. /3/
To sum up, the action of debt has passed through three stages. At
first, it was the only remedy to recover money due, except when
the liability was simply to pay damages for a wrongful act. It
was closely akin to--indeed it was but a branch of--the action
for any form of personal property which the defendant was bound
by contract or otherwise to hand over to the plaintiff. /4/ If
there was a contract to pay money, the only question was how you
[271] could prove it. Any such contract, which could be proved by
any of the means known to early law, constituted a debt. There
was no theory of consideration, and therefore, of course, no
limit to either the action or the contract based upon the nature
of the consideration received.
The second stage was when the doctrine of consideration was
introduced in its earlier form of a benefit to the promisor. This
applied to all contracts not under seal while it prevailed, but
it was established while debt was the only action for money
payable by such contracts. The precedents are, for the most part,
precedents in debt.
The third stage was reached when a larger view was taken of
consideration, and it was expressed in terms of detriment to the
promisee. This change was a change in substantive law, and
logically it should have been applied throughout. But it arose in
another and later form of action, under circumstances peculiarly
connected with that action, as will be explained hereafter. The
result was that the new doctrine prevailed in the new action, and
the old in the old, and that what was really the anomaly of
inconsistent theories carried out side by side disguised itself
in the form of a limitation upon the action of debt. That action
did not remain, as formerly, the remedy for all binding contracts
to pay money, but, so far as parol contracts were concerned,
could only be used where the consideration was a benefit actually
received by the promisor. With regard to obligations arising in
any other way, it has remained unchanged.
I must now devote a few words to the effect upon our law of the
other mode of proof which I have mentioned. I mean charters. A
charter was simply a writing. As few could write, most people had
to authenticate a document [272] in some other way, for instance,
by making their mark. This was, in fact, the universal practice
in England until the introduction of Norman customs. /1/ With
them seals came in. But as late as Henry II. they were said by
the Chief Justice of England to belong properly only to kings and
to very great men. /2/ I know no ground for thinking that an
authentic charter had any less effect at that time when not under
seal than when it was sealed. /3/ It was only evidence either
way, and is called so in many of the early cases. /4/ It could be
waived, and suit tendered in its place. /5/ Its conclusive effect
was due to the satisfactory nature of the evidence, not to the
seal. /6/
But when seals came into use they obviously made the evidence of
the charter better, in so far as the seal was more difficult to
forge than a stroke of the pen. Seals acquired such importance,
that, for a time, a man was bound by his seal, although it was
affixed without his consent. /7/ At last a seal came to be
required, in order that a charter should have its ancient effect.
/8/
A covenant or contract under seal was no longer a promise well
proved; it was a promise of a distinct nature, for which a
distinct form of action came to be provided. [273] /1/ I have
shown how the requirement of consideration became a rule of
substantive law, and also why it never had any foothold in the
domain of covenants. The exception of covenants from the
requirement became a rule of substantive law also. The man who
had set his hand to a charter, from being bound because he had
consented to be, and because there was a writing to prove it, /2/
was now held by force of the seal and by deed alone as
distinguished from all other writings. And to maintain the
integrity of an inadequate theory, a seal was said to a
consideration.
Nowadays, it is sometimes thought more philosophical to say that
a covenant is a formal contract, which survives alongside of the
ordinary consensual contract, just as happened in the Roman law.
But this is not a very instructive way of putting it either. In
one sense, everything is form which the law requires in order to
make a promise binding over and above the mere expression of the
promisor's will. Consideration is a form as much as a seal. The
only difference is, that one form is of modern introduction, and
has a foundation in good sense, or at least in with our common
habits of thought, so that we do not notice it, whereas the other
is a survival from an older condition of the law, and is less
manifestly sensible, or less familiar. I may add, that, under the
influence of the latter consideration, the law of covenants is
breaking down. In many States it is held that a mere scroll or
flourish of the pen is a sufficient seal. From this it is a short
step to abolish the distinction between sealed and unsealed
instruments altogether, and this has been done in some of the
Western States.
[274] While covenants survive in a somewhat weak old age, and
debt has disappeared, leaving a vaguely disturbing influence
behind it, the whole modern law of contract has grown up through
the medium of the action of Assumpsit, which must now be
explained.
After the Norman conquest all ordinary actions were begun by a
writ issuing from the king, and ordering the defendant to be
summoned before the court to answer the plaintiff. These writs
were issued as a matter of course, in the various well-known
actions from which they took their names. There were writs of
debt and of covenant; there were writs of trespass for forcible
injuries to the plaintiff's person, or to property in his
possession, and so on. But these writs were only issued for the
actions which were known to the law, and without a writ the court
had no authority to try a case. In the time of Edward I. there
were but few of such actions. The cases in which you could
recover money of another fell into a small number of groups, for
each of which there was a particular form of suing and stating
your claim.
These forms had ceased to be adequate. Thus there were many cases
which did not exactly fall within the definition of a trespass,
but for which it was proper that a remedy should be furnished. In
order to furnish a remedy, the first thing to be done was to
furnish a writ. Accordingly, the famous statute of 13 Edward I.,
c. 24, authorized the office from which the old writs issued to
frame new ones in cases similar in principle to those for which
writs were found, and requiring like remedy, but not exactly
falling within the scope of the writs already in use.
Thus writs of trespass on the case began to make their
appearance; that is, writs stating a ground of complaint [275] to
a trespass, but not quite amounting to a trespass as it had been
sued for in the older precedents. To take an instance which is
substantially one of the earliest cases, suppose that a man left
a horse with a blacksmith to be shod, and he negligently drove a
nail into the horse's foot. It might be that the owner of the
horse could not have one of the old writs, because the horse was
not in his possession when the damage was done. A strict trespass
property could only be committed against the person in possession
of it. It could not be committed by one who was in possession
himself. /1/ But as laming the horse was equally a wrong, whether
the owner held the horse by the bridle or left it with the smith,
and as the wrong was closely analogous to a trespass, although
not one, the law gave the owner a writ of trespass on the case.
/2/
An example like this raises no difficulty; it is as much an
action of tort for a wrong as trespass itself. No contract was
stated, and none was necessary on principle. But this does not
belong to the class of cases to be considered, for the problem
before us is to trace the origin of assumpsit, which is an action
of contract. Assumpsit, however, began as an action of trespass
on the case, and the thing to be discovered is how trespass on
the case ever became available for a mere breach of agreement.
It will be well to examine some of the earliest cases in which an
undertaking (assumpsit) was alleged. The first reported in the
books is of the reign of Edward III. /3/ The plaintiff alleged
that the defendant undertook to carry the plaintiff's horse
safely across the Humber, but surcharged [276] the boat, by
reason of which the horse perished. It was objected that the
action should have been either covenant for breach of the
agreement, or else trespass. But it was answered that the
defendant committed a wrongful act when he surcharged the boat,
and the objection was overruled. This case again, although an
undertaking was stated, hardly introduced a new principle. The
force did not proceed directly from the defendant, to be sure,
but it was brought to bear by the combination of his overloading
and then pushing into the stream.
The next case is of the same reign, and goes further. /1/ The
writ set forth that the defendant undertook to cure the
plaintiff's horse of sickness (manucepit equum praedicti W. de
infirmirate), and did his work so negligently that the horse
died. This differs from the case of laming the horse with a nail
in two respects. It does not charge any forcible act, nor indeed
any act at all, but a mere omission. On the other hand, it states
an undertaking, which the other did not. The defendant at once
objected that this was an action for a breach of an undertaking,
and that the plaintiff should have brought covenant. The
plaintiff replied, that he could not do that without a deed, and
that the action was for negligently causing the death of the
horse; that is, for a tort, not for a breach of contract. Then,
said the defendant, you might have had trespass. But the
plaintiff answered that by saying that the horse was not killed
by force, but died per def. de sa cure; and upon this argument
the writ was adjudged good, Thorpe, J. saying that he had seen a
man indicted for killing a patient by want of care (default in
curing), whom he had undertaken to cure.
[277] Both these cases, it will be seen, were dealt with by the
court as pure actions of tort, notwithstanding the allegation of
an undertaking on the part of the defendant. But it will also be
seen that they are successively more remote from an ordinary case
of trespass. In the case last stated, especially, the destroying
force did not proceed from the defendant in any sense. And thus
we are confronted with the question, What possible analogy could
have been found between a wrongful act producing harm, and a
failure to act at all?
I attempt to answer it, let me illustrate a little further by
examples of somewhat later date. Suppose a man undertook to work
upon another's house, and by his unskilfulness spoiled his
employer's timbers; it would be like a trespass, although not
one, and the employer would sue in trespass on the case. This was
stated as clear law by one of the judges in the reign of Henry
IV. /1/ But suppose that, instead of directly spoiling the
materials, the carpenter had simply left a hole in the roof
through which the rain had come in and done the damage. The
analogy to the previous case is marked, but we are a step farther
away from trespass, because the force does not come from the
defendant. Yet in this instance also the judges thought that
trespass on the case would lie. /2/ In the time of Henry IV. the
action could not have been maintained for a simple refusal to
build according to agreement; but it was suggested by the court,
that, if the writ had mentioned "that the thing had been
commenced and then by not done, it would have been otherwise."
/3/
[278] I now recur to the question, What likeness could there have
been between an omission and a trespass sufficient to warrant a
writ of trespass on the case? In order to find an answer it is
essential to notice that in all the earlier cases the omission
occurred in the course of dealing with the plaintiff's person or
property, and occasioned damage to the one or the other. In view
of this fact, Thorpe's reference to indictments for killing a
patient by want of care, and the later distinction between
neglect before and after the task is commenced, are most
pregnant. The former becomes still more suggestive when it is
remembered that this is the first argument or analogy to be found
upon the subject.
The meaning of that analogy is plain. Although a man has a
perfect right to stand by and see his neighbor's property
destroyed, or, for the matter of that, to watch his neighbor
perish for want of his help, yet if he once intermeddles he has
no longer the same freedom. He cannot withdraw at will. To give a
more specific example, if a surgeon from benevolence cuts the
umbilical cord of a newly-born child, he cannot stop there and
watch the patient bleed to death. It would be murder wilfully to
allow death to come to pass in that way, as much as if the
intention had been entertained at the time of cutting the cord.
It would not matter whether the wickedness began with the act, or
with the subsequent omission.
The same reasoning applies to civil liability. A carpenter need
not go to work upon another man's house at all, but if he accepts
the other's confidence and intermeddles, he cannot stop at will
and leave the roof open to the weather. So in the case of the
farrier, when he had taken charge of the horse, he could not stop
at the critical moment [279] and leave the consequences to
fortune. So, still more clearly, when the ferryman undertook to
carry a horse across the Humber, although the water drowned the
horse, his remote acts of overloading his boat and pushing it
into the stream in that condition occasioned the loss, and he was
answerable for it.
In the foregoing cases the duty was independent of contract, or
at least was so regarded by the judges who decided them, and
stood on the general rules applied to human conduct even by the
criminal law. The immediate occasion of the damage complained of
may have been a mere omission letting in the operation of natural
forces. But if you connect it, as it was connected in fact, with
the previous dealings, you have a course of action and conduct
which, taken as a whole, has caused or occasioned the harm.
The objection may be urged, to be sure, that there is a
considerable step from holding a man liable for the consequences
of his acts which he might have prevented, to making him
answerable for not having interfered with the course of nature
when he neither set it in motion nor opened the door for it to do
harm, and that there is just that difference between making a
hole in a roof and leaving it open, or cutting the cord and
letting it bleed, on the one side, and the case of a farrier who
receives a sick horse and omits proper precautions, on the other.
/1/
There seem to be two answers to this. First, it is not clear that
such a distinction was adverted to by the court which decided the
case which I have mentioned. It was alleged that the defendant
performed his cure so negligently that the horse died. It might
not have occurred to [280] the judges that the defendant's
conduct possibly went no further than the omission of a series of
beneficial measures. It was probably assumed to have consisted of
a combination of acts and neglects, which taken as a whole
amounted to an improper dealing with the thing.
In the next place, it is doubtful whether the distinction is a
sound one on practical grounds. It may well be that, so long as
one allows a trust to be reposed in him, he is bound to use such
precautions as are known to him, although he has made no
contract, and is at liberty to renounce the trust in any
reasonable manner. This view derives some support from the issue
on which the parties went to trial, which was that the defendant
performed the cure as well as he knew how, without this, that the
horse died for default of his care (cure?). /1/
But it cannot be denied that the allegation of an undertaking
conveyed the idea of a promise, as well as that of an entering
upon the business in hand. Indeed, the latter element is
sufficiently conveyed, perhaps, without it. It may be asked,
therefore, whether the promise did not count for something in
raising a duty to act. So far as this involves the consequence
that the action was in fact for the breach of a contract, the
answer has been given already, and is sustained by too great a
weight of authority to be doubted. /2/ To bind the defendant by a
contract, an instrument under seal was essential. As has been
shown, already, even the ancient sphere of debt had been limited
by this requirement, and in the time of Edward III. a deed was
necessary even to bind a surety. It was so [281] a fortiori to
introduce a liability upon promises not enforced by the ancient
law. Nevertheless, the suggestion was made at an early date, that
an action on the case for damage by negligence, that is, by an
omission of proper precautions, alleging an undertaking by way of
inducement, was in fact an action of contract.
Five years after the action for negligence in curing a horse,
which has been stated, an action was brought /1/ in form against
a surgeon, alleging that he undertook to cure the plaintiff's
hand, and that by his negligence the hand was maimed. There was,
however, this difference, that it was set forth that the
plaintiff's hand had been wounded by one T.B. And hence it
appeared that, however much the bad treatment may have aggravated
matters, the maiming was properly attributable to T.B., and that
the plaintiff had an action against him. This may have led the
defendant to adopt the course he did, because he felt uncertain
whether any action of tort would lie. He took issue on the
undertaking, assuming that to be essential to the plaintiff's
case, and then objected that the writ did not show the place of
the undertaking, and hence was bad, because it did not show
whence the inquest should be summoned to speak to that point. The
writ was adjudged bad on that ground, which seems as if the court
sanctioned the defendant's view. Indeed, one of the judges called
it an action of covenant, and said that "of necessity it was
maintainable without specialty, because for so small a matter a
man cannot always have a clerk at hand to write a deed" (pur
faire especially). At the same time the earlier cases which [282]
have been mentioned were cited and relied on, and it is evident
that the court was not prepared to go beyond them, or to hold
that the action could be maintained on its merits apart from the
technical objection. In another connection it seems to have
considered the action from the point of view of trespass. /1/
Whatever questions this case may suggest, the class of actions
which alleged an undertaking on the part of the defendant
continued to be dealt with as actions of tort for a long time
after Edward III. The liability was limited to damage to person
or property arising after the defendant had entered upon the
employment. And it was mainly through reasoning drawn from the
law of tort that it was afterwards extended, as will be seen.
At the beginning of the reign of Henry VI. it was probably still
the law that the action would not lie for a simple failure to
keep a promise. /2/ But it had been several times suggested, as
has been shown, that it would be otherwise if the omission or
neglect occurred in the course of performance, and the
defendant's conduct had been followed by physical damage. /3/
This suggestion took its most striking form in the early years of
Henry VI., when the case of the carpenter leaving a hole in the
roof was put. /4/ When the courts had got as far as this, it was
easy to go one step farther, and to allow the same effect to an
omission at any stage, followed by similar damage.
[283] What is the difference in principle, it was asked, a few
years later, /1/ between the cases where it is admitted that the
action will lie, and that of a smith who undertakes to shoe a
horse and does not, by reason of which the horse goes lame,--or
that of a lawyer, who undertakes to argue your case, and, after
thus inducing you to rely upon him, neglects to be present, so
that you lose it? It was said that in the earlier instances the
duty was dependent on or accessory to the covenant, and that, if
the action would lie on the accessory matter, it would lie on the
principal. /2/ It was held on demurrer that an action would lie
for not procuring certain releases which the defendant had
undertaken to get.
Five years later another case /3/ came up, which was very like
that of the farrier in the reign of Edward III. It was alleged
that the defendant undertook to cure the plaintiff's horse, and
applied medicine so negligently that the horse died. In this, as
in the earlier case, the issue was taken on the assumpsit. And
now the difference between an omission and an act was clearly
stated, the declaration was held not to mean necessarily anything
more than an omission, and it was said that but for the
undertaking the defendant would have owed no duty to act. Hence
the allegation of the defendant's promise was material, and an
issue could properly be taken on it.
This decision distinctly separated from the mass of actions on
the case a special class arising out of a promise as the source
of the defendant's obligation, and it was only a matter of time
for that class to become a new and distinct [284] action of
contract. Had this change taken place at once, the doctrine of
consideration, which was first definitely enunciated about the
same time, would no doubt have been applied, and a quid pro quo
would have been required for the undertaking. /1/ But the notion
of tort was not at once abandoned. The law was laid down at the
beginning of the reign of Henry VII., in accordance with the
earlier decisions, and it was said that the action would not lie
for a failure to keep a promise, but only for negligence after
the defendant had entered upon his undertaking. /2/
So far as the action did not exceed the true limits of tort, it
was immaterial whether there was a consideration for the
undertaking or not. But when the mistake was made of supposing
that all cases, whether proper torts or not, in which an
assumpsit was alleged, were equally founded on the promise, one
of two erroneous conclusions was naturally thought to follow.
Either no assumpsit needed any quid pro quo, /3/ as there was
clearly none in the older precedents, (they being cases of pure
tort,) or else those precedents were wrong, and a quid pro quo
should be alleged in every case. It was long recognized with more
or less understanding of the true limit, that, in cases where the
gist of the action was negligent damage to property, a
consideration was not necessary. /4/ And there are some traces of
the notion that it was always superfluous, as late as Charles I.
[285] In a case of that reign, the defendant retained an attorney
to act in a suit for a third person, and promised to pay him all
his fees and expenses. The attorney rendered the service, and
then brought debt. It was objected that debt did not lie, because
there was no contract between the parties, and the defendant had
not any quid pro quo. The court adopted the argument, and said
that there was no contract or consideration to ground this
action, but that the plaintiff might have sued in assumpsit. /1/
It was, perhaps, the lingering of this idea, and the often
repeated notion that an assumpsit was not a contract, /2/ to
which was attributable a more enlarged theory of consideration
than prevailed in debt. It was settled that assumpsit would lie
for a mere omission or nonfeasance. The cases which have been
mentioned of the reign of Henry VI. were followed by others in
the latter years of Henry VII., /3/ and it was never again
doubted. An action for such a cause was clearly for a breach of
promise, as had been recognized from the time of Edward III. If
so, a consideration was necessary. /4/ Notwithstanding occasional
vagaries, that also had been settled or taken for granted in many
cases of Queen Elizabeth's time. But the bastard origin of the
action which gave rise to the doubt how far any consideration at
all was necessary, made it possible to hold considerations
sufficient which had been in debt.
Another circumstance may not have been without its influence. It
would seem that, in the period when assumpsit [286] was just
growing into its full proportions, there was some little
inclination to identify consideration with the Roman causa, taken
in its broadest sense. The word "cause" was used for
consideration in the early years of Elizabeth, with reference to
a covenant to stand seized to uses. /1/ It was used in the same
sense in the action of assumpsit. /2/ In the last cited report,
although the principal case only laid down a doctrine that would
be followed to-day, there was also stated an anonymous case which
was interpreted to mean that an executed consideration furnished
upon request, but without any promise of any kind, would support
a subsequent promise to pay for it. /3/ Starting from this
authority and the word "cause," the conclusion was soon reached
that there was a great difference between a contract and an
assumpsit; and that, whereas in contracts "everything which is
requisite ought to concur and meet together, viz. the
consideration of the one side, and the sale or the promise on the
other side, ... to maintain an action upon an assumpsit, the same
is not requisite, for it is sufficient if there be a moving cause
or consideration precedent; for which cause or consideration the
promise was made." /4/
Thus, where the defendant retained the plaintiff to be [287] to
his aunt at ten shillings a week, it was held that assumpsit
would lie, because the service, though not beneficial to the
defendant, was a charge or detriment to the plaintiff. /1/ The
old questions were reargued, and views which were very near
prevailing in debt under Henry VI., prevailed in assumpsit under
Elizabeth and James.
A surety could be sued in assumpsit, although he had ceased to be
liable in debt. /2/ There was the same remedy on a promise in
consideration that the plaintiff would marry the defendant's
daughter. /3/ The illusion that assumpsit thus extended did not
mean contract, could not be kept up. In view of this admission
and of the ancient precedents, the law oscillated for a time in
the direction of reward as the true essence of consideration. /4/
But the other view prevailed, and thus, in fact, made a change in
the substantive law. A simple contract, to be recognized as
binding by the courts of Henry VI., must have been based upon a
benefit to the debtor; now a promise might be enforced in
consideration of a detriment to the promisee. But in the true
archaic spirit the doctrine was not separated or distinguished
from the remedy which introduced it, and thus debt in modern
times has presented the altered appearance of a duty limited to
cases where the consideration was of a special sort.
The later fortunes of assumpsit can be briefly told. It
introduced bilateral contracts, because a promise was a [288]
detriment, and therefore a sufficient consideration for another
promise. It supplanted debt, because the existence of the duty to
pay was sufficient consideration for a promise to pay, or rather
because, before a consideration was required, and as soon as
assumpsit would lie for a nonfeasance, this action was used to
avoid the defendant's wager of law. It vastly extended the number
of actionable contracts, which had formerly been confined to
debts and covenants, whereas nearly any promise could be sued in
assumpsit; and it introduced a theory which has had great
influence on modern law,--that all the liabilities of a bailee
are founded on contract. /1/ Whether the prominence which was
thus given to contract as the foundation of legal rights and
duties had anything to do with the similar prominence which it
soon acquired in political speculation, it is beyond my province
to inquire.