Bill Long 11/29/05
Trying Hard to Get Started
The route that brought me to this essay is easy to explain. I was studying the difference, suggested by Francis Bacon around 1600, between latent and patent ambiguity, and came across his phrase a "matter of specialty." As I explained there, a "matter of specialty" was a formal contract, a contract under seal, which imported the utmost seriousness into the contracting process in the common law world. Bacon was saying that such a contract with patent ambiguity in it (one could construe a word reasonably in more than one way) could not be explained by extrinsic evidence because of the impropriety of mingling averments (oral claims about what might have been meant) with specialties (solemn written contracts). So, I decided to explore more specifically the concept of "specialty," which word I will write about elsewhere. This led me to an article on the history of using sealed instruments in contract law, which I am now reading. But I became confused, a not uncommon situation, by a paragraph in this article where it tries to describe the origins of sealed instruments by linking it with the early English common law action of covenant. It cited a leading legal historian of 100 years ago, James Barr Ames of Harvard. I happened to have Ames at my feet as I was studying, and so I wanted to see if Ames, a writer who seems to write his sentences with utmost clarity, brevity and skill, could clarify for me the connection between the ancient action of covenant and the seal.
Turning to Ames
So, I opened to Ames' lecture entitled "Covenant" (Lectures in Legal History, 97ff.). I want to follow him paragraph by paragraph with you in this and the next essay, because I got lost and I want to show you how I got lost. I think that how I got lost gives us a window into why most of our life consists of getting confused, with occasional shafts of lightning thrown across our path so that we keep from plunging headlong into most abysses that confront us. He begins:
"In the ancient Germanic law all contracts were formal contracts. The history of the contractual obligation appears to be as follows:"
Got him so far. Formal obligations (where some kind of ceremonial form predominated) were the order of the day in the "ancient" German world. He doesn't define ancient, but I am thinking of about 2000 years ago. Let's continue.
"When a wrongdoer had committed a wrong upon another, the wrong gave rise to the blood-feud, which could be satisfied only by a pecuniary compensation; but if the wrongdoer was unable to pay the pecuniary compensation he was allowed to furnish a hostage. The hostage was a person who in default of payment of the debt became a slave of the creditor. Later it became the duty of the hostage to pay the debt if the debtor did not do so; that is, he became a surety for the debt."
We have a number of concepts here but if we take them one at a time, a clear picture emerges [and that, frankly, is all I really am interested in...a clear and defensible picture of the past]. First, he is talking about ancient Germanic law. He doesn't give us dates but because on the next page he talks about the time when the Germans became familiar with Roman law, we must assume that he is speaking of some period way back there, maybe in the 2nd or 3rd century. In any case, there are no footnotes, which allows us to imagine the history. I don't mind imagining history, because that is what we do all the time anyway. I assume that I will find some documents some day to support or disprove this theory of Ames, but as for now, I am willing to go along with what he says about ancient Germanic custom.
So, second, in this ancient Germanic world, a sort of East of the Rhine and West of the Elbe experience I suppose, blood feuds were solved by paying money for wrongs committed. If you couldn't afford to pay the money, you had to give a hostage to the creditor, which hostage would become the creditor's slave upon default. Clear enough. Then, third, at some "later" time the hostage had to pay the debt if the debtor defaulted. Tiny confusion here. What is the hostage doing while the debtor is trying (or in the process of refusing) to pay the debt? Just hanging out? Working for the creditor? How is this "normalized?" Well, Ames doesn't tell us. But somehow "later" it becomes the task of the hostage to pay the debt upon default of the debtor. He has become, in our modern language, "surety" for the debt. How is he supposed to pay it off? Working like Joseph for Jacob for seven years, or fourteen, or twenty? I am confused, but I still am in the same room as Ames; that is, I still can live with what he is saying.
As you can see, what started as a quest to understand a phrase in Bacon, which took me to the word specialty, which led me to an aspect of sales law (sealed instruments--and I wanted to take a detour to understand Article 2's reluctance to recognize sealed instruments), which took me to an article on the history of sealed instruments, which led me to a confusing paragraph in that article, which led me to the font of all knowledge, James Barr Ames, which is where I am right now. We are with the hostage who now, in some way, is his own surety. I think I can live with this. Let's move on to the next paragraphs.
Copyright © 2004-2008 William R.Long