Covenants and the Law of Proof, 1290–1321 John Baker It Is

Deeds speak louder than words: covenants and the law of proof, 1290–1321

John Baker

It is somewhat rash to venture an opinion on late-thirteenth-century law in the presence of one who knows everything there is to know about the law of that period, but since this seems to be the one topic on which Pro- fessor Brand has not yet pronounced perhaps these musings will provoke a definitive response from him. The question is, when and why did the central courts of Common Law come to insist on specialty, a sealed writ- ing, to prove a covenant. The contradictory literature is profoundly per- plexing to those of us who have found ourselves lecturing on the history of the law of contract; but our starting point is on fairly clear ground. There are four basic assertions which can be made with reasonable confidence. First, contrary to what was once sometimes thought,1 it was not an immemorial rule that a deed was required. There is no clear indication in the records of a rule requiring a deed before the 1290s,2 and we still find covenant cases being tried by jury or wager of law in that decade; but there are signs in the year books of an emerging rule in the 1290s and 1300s, and an invariable rule after 1321. Secondly, the rule applied at first in some actions of covenant and not in others; and it could sometimes apply to covenants pleaded in other forms of action. It was not therefore, in origin, a rule about a specific form of action, but about the underlying elements of the action. Professor Milsom has warned us that it is in any case misleading to think of covenant as a

1 See, e.g., William M. McGovern, ‘The Enforcement of Oral Contracts prior to Assump- sit’, Northwestern University Law Review 65 (1970), 576–614, at 576–582; cf. A.W. Brian Simp- son, History of the Common Law of Contract: the Rise of Assumpsit (Oxford, 1975), pp. 10–11 (‘there seems never to have been a time when the royal courts regularly allowed actions to be taken on parole [sic] covenants’; but the word ‘regularly’ here seems to recognise exceptions). On the other hand, William Searle Holdsworth, History of English Law, 3rd edn, (London, 1923), 3:417, following Frederick Pollock and Frederic William Maitland, His- tory of English Law before the Time of Edward I (Cambridge, 1895), 2:219, treated the matter as having been settled in the time of Edward I. 2 For a problematic case of 1234, found by Maitland, see the discussion in Patrick Philbin, ‘Proving the Will of Another: The Specialty Requirement in Covenant’, Harvard Law Review 105 (1992), 2001–2020, at 2003–2004. 178 john baker single ‘form of action’.3 The writ was broad enough to cover any action based on an agreement, and in many cases was an artificial preliminary to a final concord. Even in real cases, a breach of covenant might sometimes be a simple failure to follow words with actions, whereas in other cases there was an element of visible wrong, misfeasance, which may have required a lower evidential threshhold. But we are getting ahead of the four basic assertions. The third of them is that the rule was never applied in London or other local courts,4 where covenant retained its pristine informality without fear of error.5 It cannot therefore have been part of the substantive English law of contract, but was a rule of procedure or evidence applied only to pro- ceedings commenced in the central courts and eyres.6 Fourthly, the rule was not extended in a general way to the other contractual action of debt, in which wager of law remained possible in the central royal courts in many situations. Any explanation of the covenant rule must explain this difference, though it is a point which has been avoided by most previous writers and this omission weakens their explanations.7 Given that the essential concept of covenant is an agreement, whether informal or formal, and that the effect of the change in practice was to exclude the informal covenant for a time from the central courts, the dif- ficulty lies in explaining this change of practice. We have not been short of theories. Professor (now Judge) Arnold was the first to look into the plea rolls for further particulars, albeit for a period (as he acknowledged) just after the change seems to have occurred.8 He thought the explanation

3 Stroud Francis Charles Milsom, Historical Foundations of the Common Law, 2nd edn, (London, 1981), p. 246. 4 This point was made by Simpson, History of the Common Law of Contract, p. 16. 5 This was formally decided in Welsh v. Hoper (1533): John H. Baker and Stroud Francis Charles Milsom, Sources of English Legal History: Private Law to 1750 (2nd edition by John Baker), p. 324 (error from Hereford Guildhall Court). Cf. Wetenhale v. Arden (1346), below, n. 72, which was a writ of error from justices in eyre in the county palatine of Chester; the court below must have been treated as a royal court for this purpose, and bound to follow the same rule as the London eyre of 1321. 6 Cf. Pollock and Maitland, History of English Law before the Time of Edward I, 2:220 (‘the lawyers do not think that they are laying down a rule of substantive law about the form that a covenant must take; they are talking about evidence’). 7 The problem was discussed briefly in my Introduction to English Legal History, 2nd edn, (Cambridge, 1979), pp. 267–268. See also Philbin, ‘Proving the Will of Another’, pp. 2014–2020. 8 Morris S. Arnold, ‘Fourteenth Century Promises’, Cambridge Law Journal 35 (1976), 321–334.