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. 2 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. 3 It was only evidence either way, and is called so in many of the early cases. 4 It could be waived, and suit tendered in its place. 5 Its conclusive effect was due to the satisfactory nature of the evidence, not to the seal. 6

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. 7 At last a seal came to be required, in order that a charter should have its ancient effect. 8

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. [273] 1 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, 2 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.

[274] 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.