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.Acharter was simply a writing.As few could write, most people had to authenticate a document 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. 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. 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. It was only evidence either way, and is called so in many of the early cases. It could be waived, and suit tendered in its place. Its conclusive effect was due to the satisfactory nature of the evidence, not to the seal. 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. At last a seal came to be required, in order that a charter should have its ancient effect.
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. 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, 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.
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 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. 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.
