well stored, and trained and accustomed to think. We may likewise have, and indeed we actually have year by year, to consider proposed changes in our system of law or practice. And if we have learned merely by rote, we cannot be trusted, nor can we trust ourselves, to frame or adjust the requisite writings. It is the more necessary that we should apply ourselves to the study of clauses and words, and their legal meaning and import, now that, in consequence of the recent Conveyancing Acts, some clauses occurring in older deeds are practically abolished; and others of great importance, intimate acquaintance with which is essential, are transferred from deeds to the Statute-book-the deeds containing only a few relative words, which are more suggestive of inquiry than in themselves expressive. We are now more than ever, therefore, in danger on this critical point; and I desire the more forcibly to press upon your attention the value of the scientific acquaintance with all the materials we have to work on.

I believe I need hardly say that I cordially welcomed these Conveyancing Acts. They have greatly simplified forms, diminished expense, and removed the risk of error. Built upon our well-tried and venerable system of Land Rights, they have confirmed its principles, and have proved, even to those who doubted, how perfectly these are, and can be, adapted to our national wants. But whilst full of admiration of the Acts, and grateful to their distinguished authors for the benefits they have conferred on the Conveyancer, I wish at the same time to warn you of the collateral danger they seem to involve.

Thus far there is no difficulty as to what is necessary in preparation for the active duties of practical Conveyancing.

But Conveyancers, from their position in Scotland as the ordinary legal advisers of a large portion of the community, have to exercise an important influence in society. They are necessarily resorted to on those occasions when the individuals who consult them are most apt to propose, with all eagerness, and, perhaps, with perfect sincerity, what is an undue exercise of power, or, it may be, is positively wrong. Now, without arrogating to ourselves higher rules or principles of action than we allow to be in operation with the members of other classes in the community, I state my belief that a beneficial influence is exercised by those belonging to our profession to an extent which is little thought of, and, indeed, almost unknown. The decisions of courts of law expose cases in which there has been a failure in duty, but they seldom tell of those where the duty has been performed. The cases of this last description are almost unknown,-silence on the subject being itself an essential part of the Conveyancer's duty. But, considering the extent and diversity of the interests open to be affected by the influence I am speaking of, and the variety of character we necessarily meet with, the comparatively small number of cases open to animadversion demonstrates that the influence is made to operate, in the main, well and honourably.

Still there are cases where advisers have come short of their duty on this point, and their clients, or their clients' memories, have been exposed, where, probably, a little more courage, joined with discretion, in the adviser, might have been called into exercise with the highest benefit.

If those who thus seek advice are under the influence of short-sighted or morbid views, our duty to them bids us point out what we see to be the better course; and if, through temptation or passion, they seek our aid to accomplish what is wrong, our duty to them directs us further to point out their error, and, if they will not desist, it is as clear a duty to our profession, and most of all to ourselves, to cease to be their advisers.

I urge, then, in addition to the diligent and patient study of principles and forms, the utmost care in the preparation of deeds, the choice of words, and arrangement of clauses; moral courage when required in advising, and self-denial when called for in practice, and all these on the ground of simple duty. You have chosen a high and honourable, though a laborious, profession. A more elevated moral tone is not to be found in any class than in that with which you propose to connect yourselves. You are also about to engage in the study of Conveyancing at a time when our system is well understood; and I entreat each of you to think that it lies with himself not only to maintain, but to advance, its estimation and position, and to preserve for Scotch Conveyancers that character for accuracy and learning and honour which they have so long enjoyed.

BRANCH I.

DEEDS IN GENERAL

TITLE I--SOLEMNITIES IN THE EXECUTION OF DEEDS.

CHAPTER I.

We are now to enter on the special business of the Class; and I am to explain the solemnities to be observed in the execution and authentication of Deeds in general (other than bills and promissory-notes),—that is, of the Writings by which obligations and rights are legally instructed, or proved, and perfected in Scotland.

OBJECTS OF
STATUTORY

EXECUTION OF

DEEDS.

One of the first great objects in every system of jurisprudence is to GENERAL give security of title to property, and specially to afford protection to parties contracting with one another against fraud and error. It is also SOLEMNITIES OF essential to the wellbeing of society that parties should not, by the want of solemnities in point of form, be readily entrapped into important transactions. Lord Stair says on this point,1 the prime interest of men is 'to enjoy their rights not only in safety and security, but in confi'dence and quietness of mind, that they may clearly know what is their 'right, and may securely enjoy the same.'

The law interposes to prevent fraud, by attaching punishments, more or less severe, to the crimes of fabrication and deception in reference to the execution of deeds. And, as human nature is constituted, it is absolutely necessary that such sanctions should be established and enforced. But penal sanctions would be totally inadequate by themselves to the protection of the interests of the community. The fear of punishment, after having successfully broken the law, would not protect us from the breach of it. Special solemnities, applicable to the execution of deeds, are essential to aid in preventing the breach of the law. Hence has arisen that branch in our code which relates to the mode of executing and authenticating deeds, as to which Lord Stair says, 'For the security of the people, and anticipation of error and fraud, and that evident 'probation may be had, men do most profitably order deeds to be done in such a palpable and plain form as it may easily appear whether 'false or not.'

1 Stair, i. 1. 15.

ANCIENT MODES

OF AUTHENTI-
CATING TRANS-

ACTIONS AND
DEEDS.

AMONG THE

JEWS.

AMONG THE
ROMANS.

We shall find that in Scotland great attention has been paid to this important subject; but before explaining the rules of law upon it, which are for the most part statutory, but partly customary, it may be interesting to advert very generally to some of the modes or forms anciently adopted in authenticating transactions, and deeds, as containing enduring evidence of transactions.

You will find recorded in the book of Genesis' the solemn manner in which Abraham took evidence of his purchase from Ephron the Hittite of a field for a burying-place; the payment of the price and the transfer of the property being made in the presence of all them that went in at the gate of the city; and you may, perhaps, have observed that he specially records the acquisition as including not only the field, but the 'cave therein, and the trees that were in the field.'

I next notice the passage in Jeremiah, in which, upon a Jewish purchase, the purchaser says, 'I subscribed the evidence, and sealed it, and took witnesses.' And I took the evidence of the purchase, both that which was sealed according to the law and custom, and also that 'which was open: and I gave the evidence of the purchase unto Baruch, in the sight of Hanameel' (that is the seller), 'and in the presence of 'the witnesses that subscribed the book of the purchase, before all the Jews that sat in the court of the prison,' etc.

We have here a public ceremony, with written evidence subscribed, sealed, and attested by subscribing witnesses superadded. The party who subscribed seems, however, to have been the purchaser, not the seller; the seller and witnesses standing by, and seeing the document given by the purchaser to a third party, who was to preserve it for the purchaser. The seal made use of was probably the signet ring, which we know to have been of the highest authority in early times amongst the Jews and other eastern nations.

Mr. Robert Bell, in his Lectures on the Attestation of Deeds, gives the particulars of the authentication of a variety of ancient Roman deeds, and, among others, that of the gift of a monument made by Statia Irene, A.D. 252, the date being set forth with reference to the Roman consuls then in office. The party subscribes thus: Iisdem Consulibus, eodem die, Statia Irene, jus liberum habens, donationi monumenti supra scripti, sicut supra scriptum est, consensi, subscripsi et adsignavi. "This holograph docquet' (Mr. Bell says) is the subscription of the party.' We have here the great essential of consent by the party, stated in express terms at the same time that she signs and seals. Again, upon turning over the copies of ancient deeds given by Mabillon in his work De Re Diplomatica, published in 1681, and supplement in 1704, many curious varieties of the mode of authentication will be found. Some deeds of very early date bear simply the subscription of the party. Some bear to be subscribed and sealed with the ring, 1 Gen. xxiii. 16 to the end.

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2 Jer. xxxii. 10-12.

and some contain an order so to seal, indicating a keeper of the seal. Not a few parties, ecclesiastics, sign with the addition 'peccator,' or 'quamvis peccator et indignus.' Some adhibit their signatures in nomine Christi; in almost all cases the sign of the cross is affixed, and sometimes by the witnesses as well as by the parties. In some instances there are witnesses who sign, certifying, as was in strict conformity with rule, that they had been specially called to witness; and, in one case, the testament of Ermenthruda, a noble lady, two of the witnesses, besides expressing that they were specially called, add that they sign in the lady's presence, and a third says, scripsi, relegi, et subscripsi,-a very early instance of a deed containing the name of the writer, now one of the Scotch statutory formalities.

To come nearer home, Blackstone1 mentions that the method of the SAXONS. Saxons was, for such as could write, to subscribe their names, and, 'whether they could write or not, to affix the sign of the cross,--which 'custom our illiterate vulgar do for the most part to this day keep up, by signing a cross for their mark, when unable to write their names; and indeed this inability to write, and therefore making a cross in its 'stead, is honestly avowed by Cadwalla, a Saxon king, at the end of one of his charters; which the Emperor Justin in the East, and Theodoric 'king of the Goths in Italy, had before authorized by their example, on ' account of their inability to write. In like manner, and for the same 'insurmountable reason, the Normans, at their first settlement in France, NORMANS. ' used the practice of sealing only, without writing their names,--which 'custom continued when learning made its way among them, though the reason for doing it had ceased; and hence the Charter of Edward the Confessor to Westminster Abbey-himself being brought up in Normandy-was witnessed only by his seal, and is generally thought 'to be the oldest sealed charter of any authenticity in England. At the Conquest, the Norman lords brought over into this kingdom their own fashions, and introduced waxen seals only, instead of the English 'method of writing their names, and signing with the sign of the cross. This neglect of signing, and resting only upon the authenticity of seals, ENGLISH. ' remained very long among us; for it was held, in all our books, that 'sealing alone was sufficient to authenticate a deed, and so the common 'form of attesting deeds as sealed and delivered' continues to this day, ' notwithstanding the Statute 29 Charles II. cap. 3, passed in 1676 (and 'known as the Statute of Frauds), revives the Saxon custom, and ex'pressly directs the signing in all grants of land, and many other species ' of deed.' Blackstone adds, that 'the more modern opinion perhaps is, that the Statute of Frauds is applicable only to mere agreements, and that signing is not essential to the validity of a deed;' and this agrees with the definition of a deed given in the Supplement to Jarman and Bythewood's Conveyancing, (1850,) where it is said 'sealing and delivery are necessary to make a deed-signing is not.' But in a note to Stewart's

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1 Blackstone's Commentaries, vol. ii. p. 401.