PART I. deed-was not, strictly speaking, the will. The will-the essence of CHAPTER II. the thing-was the "Sententia voluntatis;" the declaration of his will by the testator-the desire and act of his mind as expressed either in words or in writing. The will took effect whether it was written or not. The only use of the writing, therefore, was, that it more certainly preserved evidence of what the will was. Now this is a distinction which it is useful to bear in mind, viz., that even where writing is by law made essential, (for words are by a general principle of law sufficient to constitute an obligation, unless writing be required,) the deed, i.e., the writing, is not the operating act of the granter. His mental act is that which constitutes the right of the grantee, and the deed is the evidence of that mental act. This is clearly shewn by the power under our Law, when a deed is lost, to supply its place by judicially proving its tenor. If the deed constituted the right, then the right would be lost along with it; but the right remains, having been created by the mental act of the granter, although the evidence of it is impaired by the loss of the deed. At the same time it must be kept in view, that, although the operating energy of a transaction depends upon the mental act of the granter, that mental act must be declared and made known in the way which the Law has required; otherwise it is clear that no benefit can accrue to the party in whose favour it is granted; and where solemnities are prescribed under the sanction of nullity, the consequence of omitting a solemnity so prescribed is, that no effect can be given to the deed or other attempted declaration, any more than if the act had remained undeclared in the mind of the granter. The second lesson which we are taught by the singularly stringent conditions under which the Roman will was made, is the purpose of solemnities in the execution of deeds. What was the end of these solemnities in the case cited? The calling of so many witnesses so carefully selected, their subscriptions and their seals, added nothing to, and in no way affected, the intention-the will-of the testator, as that intention and will existed in his own mind. It was not to help him to make up his mind that the witnesses were called. The design of the whole complicated ceremonial was simply this, to make assurance sure, that the will, as expressed in writing or in words, was in truth the voluntatis sententia-the very mind and will of the testator. The whole proceeding was directed to this end. The calling of seven witnesses was itself a strong evidence of the formed intention to make a will; the concurrence of seven witnesses, especially when all who might be biassed or incapacitated by influence, venality, or infirmity, were excluded, was a singularly strong proof of the purport of the will; and when the will was written, the writing or subscription of it by the testator, and the subscription and sealing by all the witnesses, afforded the strongest guarantee that, after the testator's death, his very will and intention would exist in the precise terms in which it flowed from his own mind and lips. PART I. CHAPTER II. EXECUTION OF The design of solemnities in the execution of deeds, then, is to make DESIGN of Soit certain that the thing, stated in the deed as done, was really the mind LEMNITIES IN and act of the granter. The law fixes certain forms to be observed DEEDS. by the maker of a deed, and says to him, "The observance of these "forms shall be the test whether you were in earnest." If they are observed, the deed will receive effect; if they are not observed, the deed will not receive effect. Solemnities are thus the legal tests of the validity of deeds. The method and details of the execution of deeds among the Romans are characteristic of the high degree of civilisation to which that people had attained. A history of the modes of executing deeds in Scotland and England, would be illustrative chiefly of the confinement of the art of writing, and of the advantages connected with it, to the Clergy before the Reformation,―of the influence of religion and its associations carried into the ordinary secular transactions of life,—and of the rapid advancement of education in Scotland after the Reformation. BY THE SEAL OF The seal is that part of the execution under the Civil Law which AUTHENTICA was most generally retained after the fall of the Roman Empire; and TION OF DEEDS this was a mode of authentication not peculiar to that Law, but de- THE GRANTER. rived by it, probably, from more ancient sources. From the book of Esther we find, that sealing was in the East the mode of authenticating Royal mandates-" For the writing which is written in viii. 8. "the king's name, and sealed with the king's ring, may no man re"verse." There are other instances in the Sacred Writings of the use of seals, and the book of Jeremiah contains in its 32d chapter an account of the purchase of a field—" I subscribed the evidence and "sealed it, and took witnesses, and weighed him the money in the "balances." Sealing, however, was not a mode of authentication used in the earlier writings with which we are acquainted in Scotland. It is the opinion of some, that the Scotch borrowed from the AngloSaxons their method of authenticating deeds. Amongst the Saxons such persons as could write subscribed their names, and whether they could write or not, they affixed a mark in the form of a cross,-a mode of subscription which is in use among the illiterate at the present day. A charter is preserved bearing the subscription by a cross of one of the Saxon kings, with the ingenuous confession that it was so signed on account of his inability to write. That this mode of subscription had a religious import, appears from the terms of the attestation of this charter:-" Propria manu pro ignorantia literarum SIGNUM SANCTE CRUCIS expressi et subscripsi." And it is equally clear from other evidence, that the signature by a cross was regarded as imparting to the deed upon which it was subscribed the preserva PART I. Ross's Lec tive influence of a charm-a feeling expressed in the rhyming hexaCHAPTER II. meter, "Per crucis hoc signum fugit hinc procul omne malignum.". On the fourth page of Anderson's Diplomata, there will be found a tures, p. 123. charter of Duncan I. of Scotland, attested by the cross of the king and crosses made by the writer of the deed and by various witnesses. The last mentioned charter has appended to it also the seal of the king, and in this he is supposed to have imitated William the Conqueror, who introduced the practice of sealing as the sole mode of attesting writings. The Normans did not subscribe, because they could not write; and the practice of subscribing was abolished in England after the Conquest. The impressions of their seals consisted of a knight on horseback, or other devices; and coats of arms were not introduced until after the Crusades, during which they were first used for the purpose of distinguishing different countries and persons. The practice of execution by sealing alone continued in England until the time of Charles II., when the Saxon custom of signing was revived by statute, although it does not appear to have come rapidly into general observance; and hence the common form of attesting English deeds, "sealed and delivered," continued long after the additional formality of signing was required by statute. The form of execution in Scotland appears to have followed the English practice; and this circumstance may be attributed with probability to the connexion of both countries with the Church of Rome, whose clergy long possessed almost exclusively the art of writing. Accordingly, we find deeds prior to the year 1540 executed by the seal of the granter alone, the names of witnesses being inserted at the end of deeds relating to important matters. The test of the authenticity of a deed, therefore, Stair, iv. 42, 5; was the correspondence of the seal appended to it, with the known Mackenzie, i seal of the granter bearing his coat of arms or his initials. Such a 253; Reg. Maj. system was manifestly imperfect, and liable to abuse; and it was probably as a precaution against the falsification of seals, that freeholders were required, by an Act of James I., 1429, cap. 130, to attend, personally or by their attorneys, and to produce their seals at the sheriff's head court. iii. 8, 4. i. AUTHENTICA conta It may be noticed that MAGNA CHARTA was executed before witTION BY SEAL, nesses; and this continued to be the practice in deeds by the Sovereign of England until the time of Richard I., who altered the style to "teste me ipso," which form still continues. In deeds by subjects, again, the names of witnesses present were inserted in a clause commencing with the words, "his testibus," which was discontinued in the reign of Henry VIII., when, upon the revival of learning, writing having become more general, the practice was introduced, which still prevails, of witnesses subscribing their attestation either at the bottom or on the back of the deed. In like manner, in Scotland the names of witnesses present either accidentally or upon requisition were PART I. mentioned in deeds, anterior to the period when the subscription of witnesses became first customary, and afterwards, as we shall pre- CHAPTER II. sently find, a statutory requisite. But as long as sealing remained the legal form of executing deeds, it was not essential to the validity of the deed that it should be witnessed. This appears from the case of Town of Edinburgh v. Town of Leith, 11th March 1630. M. 14500. The inconveniences connected with the attestation of deeds by sealing are distinctly stated by Sir Thomas Craig, who says:- Lib. 2. Dieg. 4. "Eighty years since unlimited faith was given to deeds, although they were authenticated by the seal of the disponer alone; but frequently after his death many inconveniences were occasioned by "fraud on the part of his widow, or of the person who had obtained possession of his seal, and it often happened that dispositions con"cocted after the death of the proprietor were authenticated by his "seal." These evils called loudly for a remedy, and accordingly the Act, to which I am now to direct your particular attention, was passed 1540, c. 117. with the approval, according to Craig, of all classes. That Act is the first of the several statutes by which the execution of deeds is now regulated. It was passed in the latter end of the reign of James V., who, although he resisted the attempts made by Henry VIII. through his ambassador to detach him from adherence to the Church of Rome, and supported measures of extreme severity to smother the Reformation in its infancy, yet pursued an enlightened policy in other respects, of which a remarkable example was, that, in this same year 1540, in order to diffuse a knowledge of the laws among the inferior judges and the body of the people, the Acts of Parliament were ordered to be printed from an authentic copy attested by the sign-manual of the Clerk-Register. Such an order implied advancement in general knowledge and intelligence-a conclusion strikingly confirmed by what occurred two years later, after the death of this monarch, when liberty was granted to read the Bible in an approved translation. EARLY STATU. DEEDS. 1540, cap. 117. The statute now referred to is chapter 117 of the seventh parliament of James V., 1540. Its preamble corresponds with the state- MENTS AS TO ment of Craig, being in these terms:-" Because mennis seales may EXECUTION OF "of adventure be tint, quhairthrow great hurt may be genered to "them that awe the samin; and that mennis seales may be feinzied "or put to writinges after their decease." And it enacts:-"That "therefore na faith be given in time cumming to ony obligation, "band, or uther writing under ane seale, without the subscription of "him that awe the samin, and witnesse; or else, gif the partie can"not write, with the subscription of ane notar thereto." This statute is the foundation of the present system of executing deeds, its grand feature being, that, in place of the previous unsatisfactory practice of sealing, it required the subscription of the party either by his own PART I. hand, or, if he could not write, by the hand of a notary. It was CHAPTER II. defective, however, inasmuch as, while witnesses were required to the subscription of the party, there was no injunction that the witnesses themselves should subscribe, and it was left doubtful whether witnesses were necessary at all in the case of subscription by a notary; nor did the Act contain any provision for inserting in the deed, or otherwise preserving, the names of the witnesses where they did not subscribe, or their designations whether they subscribed or not. Mr. Ross, in commenting upon Lord KAMES' strictures upon the Act Lectures, i. 127. 1540, says :-"That Act expressly requires the subscription both of "the party and of the witnesses." In this, however, he is not borne out by the terms of the Act, which, although it required witnesses, is silent as to their subscription; and the practice which followed upon it shewed that it was understood to contain no express rule upon this point. In some instances the witnesses subjoined their subscriptions, and in others they did not subscribe, though their names were inserted in the deed; and the latter practice, which was the more common, left it much in the power of the granters of deeds to commit frauds by naming witnesses suitable to their own purposes, either where the deed had not been legally executed, or where the execution had been regular, but the real witnesses were removed. Another inconvenience attendant upon the Act 1540, was found in practice to result from the character of the notaries of that time, which was not such as to afford sufficient security against fraud, where the intervention of only one notary was required. It was attempted to correct both these evils, viz., the uncertain and lax practice with respect to witnesses, and the insufficiency of one notary, by the Act of James VI., 1579, cap. 80. By this statute it was ordained, "that all "contractes, obligationes, reversiones, assignationes and discharges of "reversiones, or eikes theirto, and generallie all writtes importing heri"tabill titill, or utheris bandes and obligationes of great importance to be maid in time cumming, sall be subscrived and seilled be the principall parties gif they can subscrive, utherwise be twa famous "notars befoir four famous witnesses, denominat be their speciall "dwelling-places, or sum uther evident takens, that the witnesses "may be knawen being present at that time, utherwise the saidis writs "to mak na faith." This enactment, which is stated by Sir George Mackenzie to have been framed upon the model of a similar law made in France in the year 1556, expressly requires, it will be observed, that the party should still seal as well as subscribe, the solemnity of sealing having likewise been continued by implication in the previous Act of 1540. By the subsequent Act 1584, cap. 4, it was declared that, with respect to sealing, the Act should not apply to such writs, contracts, or obligations, as the parties agreed should be registered in the books of Council or other Judges' books, registration being a more 1579, c. 80. 1584, c. 4. |