This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
We consider elsewhere the gradual extension of the use of the seal as a means of authenticating instruments. With the adoption by the lower strata of free men of a form which had once been characteristic of the great men of the realm,1 we find an increasing disposition to recognize the new form of instrument as creating a distinct class of rights. When Glanville wrote the sealed charter was only one kind of evidence, though often the most satisfactory kind, of proving the debt sued for. The tendency of special forms of evidence to develop into special forms of contract is very strong. Soon after Glanville wrote, it appears from the records of the courts that they were beginning to allow a special form of writ for formal written instruments. This is the writ of covenant. Pollock and Maitland2 give examples of the writ of covenant of the dates of 1194 A. D. and 1201 A. D. By the time of Bracton the action of covenant is in general use, though he uses language which seems to imply that the courts exercised a rather arbitrary discretion in deciding what contracts they would enforce, and that they were on the whole averse to enforcing contracts made out of court. In speaking of stipulations he refers to the "Conventional which is drawn up on the agreement of each party, and not by order of the judge or of the praetor, and of which there are as many kinds as there are penalties for contracts, with which the court of the king does not interfere at all except as a matter of grace."3 "Although it is not allowable tot any of the parties to recede from covenants it is not usual at any time for a necessity to be imposed on the court of our lord the king to discuss private covenants of this kind. But, nevertheless, if anyone recedes from a covenant the other party is aided by an action on the covenant, according as will be explained below."4 During the century following Glanville the action of covenant became firmly established as a means of enforcing formal contracts.5
1 See Sec. 1156.
2 History of English Law (2d Ed.), Vol. II, 216.