J. Ames, Lectures on Legal History 98-99, 104-106 (1913)

J. AMES, LECTURES ON LEGAL HISTORY 98-99, 104-106 (1913): "When the Germans became familiar with Roman civilization it was natural to put the terms of the agreement into a written document, which was passed to the creditor along with the wadia; and in time the wadia itself was omitted. This document, adding the requirement of a seal to make it formal, is the English covenant.

"The earliest covenants we find in the books seem to touch the land. The earliest instance of a covenant not relating to land is of the time of Edward III. The earliest covenants were regarded as grants, and suit could not be brought on the covenant itself. So a covenant to stand seised was a grant, and executed itself. The same is true of a covenant for the payment of money; it was a grant of the money, and executed itself. For failure to pay the money, debt would lie. Afterwards an action of covenant was allowed, so that to-day there is an option.

"A seal was always essential. It was considered, formerly, of much greater importance than now. Glanvill says that if the defendant admits that a seal upon the instrument is his seal, but denies the execution of the instrument, he is, nevertheless, bound, for he must set it down to his own carelessness that he could not keep his seal. The case supposed would arise where the seal had been lost or stolen. There is a case to this effect in the time of John. The doctrine was somewhat qualified by the time of Bracton. He seems to think that a covenantor would not be liable unless it was by his negligence that the matter occurred, as by leaving the seal in the possession of his bailiff or his wife. In the time of Edward I. is a case on the same principle, being a petition to the King that a certain seal that had been lost should no longer have validity. In Riley's Memorial of London it is said that public cry was made that A. had lost his seal and that he would no longer be bound by the same. Riley also gives an account of making a new seal for the city of London, and it is stated, as if it was important, that the old seal was broken with due formality. Of course this doctrine has left no trace in modern times. For centuries a covenantor has not generally used a distinctive seal; any kind of impression has been sufficient. . . .

"It has been often said that a seal imports a consideration, as if a consideration were as essential in contracts by specialty as it is in the case of parol promises. But it is hardly necessary to point out the fallacy of this view. It is now generally agreed that the specialty obligation, like the Roman stipulatio, owes its validity to the mere fact of its formal execution. The true nature of a specialty as a formal contract was clearly stated by Bracton: 'Per scripturam vero obligatur quis, ut si quis scripserit alicui se debere, sive pecunia numerata sit sive non, obligatur ex scriptura, nec habebit exceptionem pecuniae non numeratae contra scripturam, quia scripsit se debere.'

"Bracton's statement is confirmed by a decision about a century later. The action was debt upon a covenant to pay £100 to the plaintiff upon the latter's marrying the defendant's daughter. it was objected that this being a debt upon a covenant touching marriage was within the jurisdiction of the spiritual court. But the common-law judges, while conceding the exclusive jurisdiction of the spiritual court if the promise had been by parol, gave judgment for the plaintiff, because this action was founded wholly upon the deed. In another case it is said: 'In debt upon a contract the plaintiff shall show in his count for what consideration (cause) the defendant became his debtor. Otherwise in debt upon a specialty (obligation), for the specialty is the contract in itself.'

"The specialty being the contract itself, the loss or destruction of the instrument would logically mean the loss of all the obligee's rights against the obligor. And such was the law. 'If one loses his obligation, he loses his duty.' 'Where the action is upon a specialty, if the specialty is lost, the whole action is lost.' The injustice of allowing the obligor to profit at the expense of the obligee by the mere accident of the loss of the obligation is obvious. But this ethical consideration was irrelevant in a court of common law. It did finally prevail in Chancery, which, in the seventeenth century, upon the obligee's affidavit of the loss or destruction of the instrument, compelled the obligor to perform his moral duty. A century later the common-law judges, not to be outdone by the chancellors, decided, by an act of judicial legislation, that if profert of a specialty was impossible by reason of its loss or destruction, the plaintiff might recover, nevertheless, upon secondary evidence of its contents.

"The difference between the ethical attitude of equity and the unmoral (not immoral) attitude of the common law in dealing with specialty contracts appears most conspicuously in the treatment of defenses founded upon the conduct of the obligee. As the obligee, who could not produce the specialty, was powerless at common law against an obligor, who unconscionably refused to fulfil his promise, so the obligor who had formally executed the instrument was, at common law, helpless against an obligee who had the specialty, no matter how reprehensible his conduct in seeking to enforce it. On the other hand, as equity enabled the owner of a lost obligation to enforce it against an unjust obligor, so also would the Chancellor furnish the obligor with a defense by enjoining the action of the obligee, whenever it was plainly uniust for him to insist upon his strict legal right."