account, but there are some considerations which I should like to suggest in a summary way. We are not bound to assume with Sohm that his Frankish ancestors had a theory in their heads which, even if a trifle inarticulate, was the majestic peer of all that was done at Rome. The result of that assumption is to lead to the further one, tacitly made, but felt to be there, that there must have been some theory of contract from the beginning, if only you can find what it was. It seems to me well to remember that men begin with no theory at all, and with no such generalization as contract. They begin with particular cases, and even when they have generalized they are often a long way from the final generalizations of a later time. Down into this century consideration was described by enumeration, as you may see in Tidd's "Practice," or Blackstone,[1] and only of late years has it been reduced to the universal expression of detriment to the promisee. So, bailment was Bailment and nothing further until modern times. It was not contract. And so warranty was Warranty, a duty imposed by law upon the vendor, and nothing more.[2] A trust still is only a Trust, although according to the orthodox it creates merely a personal obligation.
Well, I have called attention elsewhere to the fact that giving hostages may be followed back to the beginning of our legal history, as far back as sales, that is, and that out of the hostage grew the surety, quite independently of the development of debt or formal contract. If the obligation of the surety, who, by a paradox explained by his origin, appears often in early law without a principal contractor, as the only party bound, had furnished the analogy for other undertakings, we never should have had the doctrine of consideration. If other undertakings were to be governed by the analogy of the law developed out of sales, sureties must either have received a quid pro quo or have made a covenant. There was a clash between the competing ideas, and just as commerce was prevailing over war the children of the sale drove the child of the hostage from the field. In the time of Edward III. it was decided that a surety was not bound without a covenant, except in certain cities where local custom maintained the ancient law. Warranty of land came to require, and thus to be, a covenant in the same way, although the warranty of title upon a sale of chattels still
