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. STATUTORY EXECUTION OF 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 OBJECTS OF 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 DEEDS. 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 1 Stair, i. 1. 15. ANCIENT MODES We shall find that in Scotland great attention has been paid to this CATING TRANS- 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. ACTIONS AND DEEDS. AMONG THE AMONG THE You will find recorded in the book of Genesis1 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 witness.' '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 give the evidence of the purchase unto Baruch, ' in the sight of Hanameel' (that is, the seller), 'and in 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. 3 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 Diplomaticâ, 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, 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 1 Gen. xxiii. 16 to the end. 2 Jer. xxxii. 10-12. 3 Lectures, p. 4. 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.a 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 Theodric king of the Goths in Italy, had before authorised 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 1 Blackstone's Commentaries, vol. ii. p. 401. a It is now no longer necessary to name the writer of a deed. See Note at the end of this Chapter. ANCIENT SCOT TISH FORMS. CROWN CHARTERS. edition of Blackstone (1854) it is said that the ceremony of sealing a deed is now of little importance.' To us, so long accustomed to think sealing a very inferior mode of authenticating deeds by private parties, it seems remarkable that, in England, signing should until recently have been thought of secondary importance in any case. As regards witnesses (I am still referring to English forms), the Magna Charta1 of King Henry III., and his Charter of the Forest, of the same date, 11th February 1225, bear to be witnessed by many persons of note, who do not sign. The Statutes of Edward I., 12th October 1299, confirming these charters, are granted 'Teste Edwardo, filio nostro.' The Statutum Hibernia, 9th February 1229, is attested thus: 'I myself, witness; and the 'teste meipsa' continues to be the form in most Crown writs at the present day. In private deeds, the ancient custom was to specify in the deed the persons who attended as witnesses, and who, in former times, did not sign their names (that not always being in their power), but only heard the deed read. But in the reign of Henry VIII., learning being revived, and the faculty of writing more general, the witnesses usually subscribed their attestations, either at the foot, or on the back, of the deed. This continues to be the rule, but it does not appear to be the result of any Statute, except as regards Wills, which, by the Act commonly known as Campbell's Act,2 are not valid unless signed at the foot by the testator, or by some other person in his presence, and by his direction; and unless the signature shall be made or acknowledged by the testator, in the presence of two or more witnesses at the same time, which witnesses shall attest, and shall subscribe, the Will in the presence of the testator. Anciently in Scotland, according to the Antiquarian Ruddiman, the practice of the Saxons and Normans was followed, in evidence of which he refers to the Charter by King Duncan II., forming the first of the Charters of which facsimiles are given in Anderson's Diplomata Scotiæ. This Charter, the genuineness of which, however, appears to be questioned, is authenticated by the cross of the King, and crosses made by his brother, who was a consenting party, and by the witnesses present. It is not sealed, but by and by, in the reign of the same Duncan, waxen seals came into use in authentications. In some ancient Scotch Charters the witnesses who happened to be present, whether men or women, were named in the clause of attestation. A Charter by David Earl of Huntingdon is tested in this manner- Testimonio Mathildis Reginæ, et Wilielmi filii sui.' This method, Mr. Walter Ross tells us in his Lectures, was continued in Crown Charters down to the reign of Malcolm IV., in which a Charter to Walter, Steward of Scotland, was so attested. Another 1 King John's Magna Charta was granted on 19th June 1215, and it has the Great Seal attached. No one witnesses it as Chancellor, and Lord Campbell supposes that for the time the Great Seal was in the King's own keeping, and was attached to the charter by himself. 27 Will. IV. & 1 Vict. c. 26, s. 9. Charter of the same Prince, forming No. 25 of Anderson's Collection, has about fifty witnesses, men and women of the first note. This style came soon afterwards to be altered to' In cujus rei testimonium sigillum nostrum apponi precepimus, testibus,' etc., which continues in Charters from the Crown to the present day; and the witnesses named, who in such cases have never been in use to sign, have for a long period been the persons holding certain high offices. These are at present the Lord Clerk Register, the Lord Justice-Clerk, and the Director of the Royal Chancery. DEEDS. Private deeds were anciently executed and attested in Scotland in PRIVATE the same manner as Crown Charters. The great test came to be the affixing of the grantor's seal, which, in some instances at least, appears to have made the party responsible, though done without his actual consent. On this subject the Regiam Majestatem says,1 Because the debtor may 'grant and acknowledge the seale, and deny that writ to have been 'made with his consent. 1 C 4. Gif he confessis in the Court the seale to be his seale, he shall 'warrand that writ, and shall be compelled to keep and fulfil the tenor 'thereof. 5. And shall impute to his own evil keeping of the seale, gif he 'incurres any damage or skaith, through the negligent keeping thereof.' Sometimes, again, as we are told by Craig,2 parties in authenticating their own deeds used seals lent them by others,- tanta erat iis temporibus, inter contrahentes, simplicitas;' but, when such lent seal was used, it was proper to state the fact in the Charter, mentioning the name of the owner of the seal. The object of this was both to certify the liability of the real grantor, notwithstanding the seal used was not his, and to obviate all claim of liability against the owner of the lent seal. But, even when the grantor had a seal which was appended to his Charter, there are instances in which, if his seal was not well known, he appended also some other seal, the authenticity of which was undoubted. Thus I find an instance of this in a writing dated 5th November 1448, to which the seal of the grantor is appended, and the clause of attestation bears that, in regard the same is little known, the seal of a certain nobleman was also appended. RELIANCE ON DEEDS. But the use of seals, excepting public or official seals, which were OBJECTIONS TO usually in special custody, and altogether distinctive in their character, SEALS IN CASE was clearly open to much objection as a mode of authentication, both OF PRIVATE as regards grantors and grantees. It was probably, among other reasons, in order to diminish the risk arising from the liability of private seals to be fabricated, that the Act 1429, cap. 130, was passed, ordaining that 'upon the serving of inqueistes and Retoures againe to the Kingis Chappel' (that is, the Chancery), 'all Free-halders, dwelland within ony Schirreffe'doms, compeir at the head Courtes, in their proper persones, with their 2 Craig, De feudis, Book ii. Dieg. 4, 1 Regiam Majestatem, Book iii. cap. 8, No. 3. s. 15. |