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objected to au action upon an ＇268＇ assumpsit for not building a mill； that it was not shown what the defendant was to have for doing it。 In the thirty…sixth year of the same reign （A。D。 1459）； the doctrine appears full grown； and is assumed to be familiar。 /1/
The case turned upon a question which was debated for centuries before it was settled； whether debt would lie for a sum of money promised by the defendant to the plaintiff if he would marry the defendant's daughter。 But whereas formerly the debate had been whether the promise was not so far incident to the marriage that it belonged exclusively to the jurisdiction of the spiritual courts； it now touched the purely mundane doubt whether the defendant had had quid pro quo。
It will be remembered that the fact formerly sworn to by the transaction witnesses was a benefit to the defendant； namely； a delivery of the things sold or the money lent to him。 Such cases； also； offer the most obvious form of consideration。 The natural question is； what the promisor was to have for his promise。 /2/ It is only by analysis that the supposed policy of the law is seen to be equally satisfied by a detriment incurred by the promisee。 It therefore not unnaturally happened that the judges； when they first laid down the law that there must be quid pro quo； were slow to recognize a detriment to the contractee as satisfying the requirement which had been laid down。 In the case which I have mentioned some of the judges were inclined to hold that getting rid of his daughter was a sufficient benefit to the defendant to make him a debtor for the money which he promised； and there was even some hint of the opinion； that marrying the lady was a ＇269＇ consideration； because it was a detriment to the promisee。 /1/ But the other opinion prevailed； at least for a time； because the defendant had had nothing from the plaintiff to raise a debt。 /2/
So it was held that a service rendered to a third person upon the defendant's request and promise of a reward would not be enough； /3/ although not without strong opinions to the contrary； and for a time the precedents were settled。 It became established law that an action of debt would only lie upon a consideration actually received by and enuring to the benefit of the debtor。
It was； however； no peculiarity of either the action or contract of debt which led to this view； but the imperfectly developed theory of consideration prevailing between the reigns of Henry VI。 and Elizabeth。 The theory the same in assumpsit； /4/ and in equity。 /5/ Wherever consideration was mentioned； it was always as quid pro quo； as what the contractor was to have for his contract。
Moreover； before consideration was ever heard of； debt was the time…honored remedy on every obligation to pay money enforced by law； except the liability to damages for a wrong。 /6/ It has been shown already that a surety could be sued in debt until the time of Edward III。 without a writing； yet a surety receives no benefit from the dealing with his principal。 For instance； if a man sells corn to A； ＇270＇ and B says； 〃I will pay if A does not；〃 the sale does B no good so far as appears by the terms of the bargain。 For this reason； debt cannot now be maintained against a surety in such a case。
It was not always so。 It is not so to this day if there is an obligation under seal。 In that case； it does not matter how the obligation arose； or whether there was any consideration for it or not。 But a writing was a more general way of establishing a debt in Glanvill's time than witness； and it is absurd to determine the scope of the action by considering only a single class of debts enforced by it。 Moreover； a writing for a long time was only another； although more conclusive； mode of proof。 The foundation of the action was the same； however it was proved。 This was a duty or 〃duity〃 /1/ to the plaintiff； in other words； that money was due him； no matter how； as any one may see by reading the earlier Year Books。 Hence it was； that debt lay equally upon a judgment； /2/ which established such a duty by matter of record； or upon the defendant's admission recorded in like manner。 /3/
To sum up； the action of debt has passed through three stages。 At first； it was the only remedy to recover money due； except when the liability was simply to pay damages for a wrongful act。 It was closely akin toindeed it was but a branch ofthe action for any form of personal property which the defendant was bound by contract or otherwise to hand over to the plaintiff。 /4/ If there was a contract to pay money； the only question was how you ＇271＇ could prove it。 Any such contract； which could be proved by any of the means known to early law； constituted a debt。 There was no theory of consideration； and therefore； of course； no limit to either the action or the contract based upon the nature of the consideration received。
The second stage was when the doctrine of consideration was introduced in its earlier form of a benefit to the promisor。 This applied to all contracts not under seal while it prevailed； but it was established while debt was the only action for money payable by such contracts。 The precedents are； for the most part； precedents in debt。
The third stage was reached when a larger view was taken of consideration； and it was expressed in terms of detriment to the promisee。 This change was a change in substantive law； and logically it should have been applied throughout。 But it arose in another and later form of action； under circumstances peculiarly connected with that action； as will be explained hereafter。 The result was that the new doctrine prevailed in the new action； and the old in the old； and that what was really the anomaly of inconsistent theories carried out side by side disguised itself in the form of a limitation upon the action of debt。 That action did not remain； as formerly； the remedy for all binding contracts to pay money； but； so far as parol contracts were concerned； could only be used where the consideration was a benefit actually received by the promisor。 With regard to obligations arising in any other way； it has remained unchanged。
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。 A charter was simply a writing。 As few could write； most people had to authenticate a document ＇272＇ 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。 /1/ 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。 /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