ferior courts, of the Law Merchant, and--last, not
least--of the Church.

Fidel laesio.

Popular custom, in all European countries, recognized simpler ways of
pledging faith than parchment and seal. A handshake was enough to bind a
bargain. Whatever secular law might say, the Church said it was an open
sin to break plighted faith; a matter, therefore, for spiritual
correction, in other words, for compulsion exercised on the defaulter by
the bishop's or the archdeacon's court, armed with the power of
excommunication. In this way the ecclesiastical courts acquired much
business which was, in fact, as secular as that of a modern county
court, with the incident profits. Medieval courts lived by the suitors'
fees. What were the king's judges to do? However high they put their
claims in the course of the rivalry between Church and Crown, they could
not effectually prohibit the bishop or his official from dealing with
matters for which the king's court provided no remedy. Continental
jurists had seen their way, starting from the Roman system as it was
left by Justinian, to reduce its formalities to a vanishing quantity,
and expand their jurisdiction to the full breadth of current usage.
English judges could not do this in the 15th century, if they could ever
have done so. Nor would simplification of the requisites of a deed, such
as has now been introduced in many jurisdictions, have been of much use
at a time when only a minority even of well-to-do laymen could write
with any facility.

There was no principle and no form of action in English law which
recognized any general duty of keeping promises. But could not breach of
faith by which a party had suffered be treated as some kind of legal
wrong? There was a known action of trespass and a known action of
deceit, this last of a special kind, mostly for what would now be called
abuse of the process of the court; but in the later middle ages it was
an admitted remedy for giving a false warranty on a sale of goods. Also
there was room for actions "on the case," on facts analogous to those
covered by the old writs, though not precisely within their terms. If
the king's judges were to capture this important branch of business from
the clerical hands which threatened to engross it, the only way was to
devise some new form of action on the case. There were signs, moreover,
that the court of chancery would not neglect so promising a field if the
common law judges left it open.