Then as to the pledge or surety.  He no longer paid with his body, unless in very exceptional cases, but his liability was translated into money, and enforced in an action of debt.  This time-honored contract, like the other debts of Glanvill’s time, could be established by witness without a writing, 2 and in this case there was not such a consideration, such a benefit to the promisor, as the law required when the doctrine was first enunciated.  But this also is unimportant, because his liability on the oath of witness came to an end, as well as that of the warrantor, before the foundations were laid for the rule which I am seeking to explain.  A writing soon came to be required, as will be seen in a moment.

The result so far is, that the only action of contract in Glanvill’s time was debt, that the only debts recovered [261] without writing were those which have been described, and that the only one of these for which there was not quid pro quo ceased to be recoverable in that way by the reign of Edward III.

But great changes were beginning in the reign of Henry II.  More various and complex contracts soon came to be enforced.  It may be asked, Why was not the scope of the witness oath enlarged, or, if any better proof were forthcoming, why was not the secta done away with, and other oral testimony admitted?  In any event, what can the law of Henry II.’s time have to do with consideration, which not heard of until centuries later?

It is manifest that a witness oath, which disposes of a case by the simple fact that it is sworn, is not a satisfactory mode of proof.  A written admission of debt produced in court, and sufficiently identified as issuing from the defendant, is obviously much better.  The only weak point about a writing is the means of identifying it as the defendant’s, and this difficulty disappeared as soon as the use of seals became common.  This had more or less taken place in Glanvill’s time, and then all that a party had to do was to produce the writing and satisfy the court by inspection that the impression on the wax fitted his opponent’s seal. 1 The oath of the secta could always be successfully met by wager of law, 2 that is, by a counter oath the part of the defendant, with the same or double the number of fellow-swearers produced by the plaintiff.  But a writing proved to be the defendant’s could not be contradicted. [262] 1 For if a man said he was bound, he was bound.  There was no question of consideration, because there was as yet no such doctrine.  He was equally bound if he acknowledged all obligation in any place having a record, such as the superior courts, by which his acknowledgment could be proved.  Indeed, to this day some securities are taken simply by an oral admission before the clerk of a court noted by him in his papers.  The advantage of the writing was not only that it furnished better proof in the old cases, but also that it made it possible to enforce obligations for which there would otherwise have been no proof at all.