legal words and statutes staple and statute staple and recognizance

As is usually the case for me these days, I began my day by searching around to understand some concepts that were only imperfectly formed in my mind the day before (essays on Sealed Instruments) to see if I could understand things more fully. The method might loosely be called "Knowledge Backfilling" since each day I have to go back to fill in the holes created by the previous day's hunt. I wonder why people generally believe that knowledge acquisition is a cumulative process; I find that it is just trying to fill in gaping holes created by earlier questions. And, it seems, every time you try to mend the holes, you find newer and bigger holes. Sort of like the street-paving people in my town, I think. Well, first let me begin with the story of how I got to some words today, and then to the words themselves.

Getting my Bearings

I began last month doing some preliminary work on the history of sales law, since I will be teaching Article 2 of the UCC again in January. I began to delve into sales, which leads you to contracts, which leads you to the history of contracts, which led me to some terminology in the maxims of Francis Bacon in the early 17th century distinguishing between what he called patent and latent ambiguity in texts. This led me to how he thought the distinction should be defined, and then to his observation that in "matters of specialty," you don't use extrinsic evidence to tell you what a contract/deed means. Well, I had to search out what was meant by a "matter of specialty," and I ran into the notion of contracts under seal. Thus, I did a lot of historical work on that subject. But this created further problems for me because it suggested that there were two kinds of contracts, at least, those under seal and those which scholars called "Simple" or "Parol" contracts--those not under seal. So, then I was juggling at least two ideas in my mind (really three): Bacon and his maxims, difference between various kinds of contracts at common law and, deep in my mind, the history of sales law. In fact, here is the way my mind was working today for each category:

1. Bacon. I began to do some research on him, his maxims, and his world. I discovered that it is quite complicated (did I expect anything less?) and that the maxims were only one work among many in the history of English legal maxims. I began to see that I could really get bogged down in that, though I would love to memorize loads of Latin phrases and sentences. Actually, I have been walking around town in the past few days reciting a maxim of Erasmus (I ended up spending an evening on him and writing an essay because a friend was studying him in seminary) which goes like this: "In regione caecorum, rex est luscus." I saw that if I really wanted to get into Bacon, then, I could devote a good deal of time to him and maxims in general. It would be time very well spent, I believe. So, I ordered in interlibrary loan his 1630 volume (posthumously published) on The Elements of the Common Lawes of England, which discusses his 25 legal maxims at length. But, as luck would have it, I became entranced both by his title and by his first sentence, and just had to pause on some phrases (which I will get to presently). Thus, I don't know where and how I will pursue Bacon, because he is only a rather minor target at present.

2. Contracts. The real thing that got me redirected was my foray into the law of contracts, especially that of sealed instruments. I still don't know much, but this took me to a treatment on the history of seals. Actually, the best brief excerpts I found from various books on the subject was in an old edition of Wigmore on Evidence, sec. 2161 (2nd ed.). In a fascinating series of excerpts he takes me from early Norman times until about the 15th century on seals. This is not the place to tell you what I learned here about seals, though some of the knowledge will, no doubt, seep out in later essays. But this led me to the problem of how to distinguish contracts at common law--I thought there were two categories after about 1600 or so: Sealed contracts and Simple contracts. I came across reference to a book by William Wetmore Story (Joseph's son), who wrote a book on Contracts Not Under Seal in the 1870s. In that book, he distinguishes three kinds of contracts: (a) Contracts of Record; (b) Agreements by specialty (under seal); and (c) Simple contracts. I knew I didn't want to get any deeper at this point into agreements by specialty, even though I still have tons of questions about them), but I saw that he divided "Contracts of Record" into three more categories: (a) judgments; (b) recognizances; and (c) statutes staple. Whoops, more things not clear now. So, I had to search out what a recognizance was, because I thought it had to do with criminal law. Well, didn't YOU? And, then, what is a "statute staple?"

3. I saw by this time that I was getting seriously away from the original project which had claimed my attention: the study of the history of sales law. So, I know I need to get back to that. My conception was and is as follows. I was going to go section by section of the Uniform Sales Act of 1906 ("USA") with the help of Williston's 1909 treatise on the subject, to try to understand fairly completely where "sales law was" 100 years ago in America. This would be my "baseline" knowledge so that I could then go into how the UCC arose. This latter task would take me to the biography of Karl Llewellyn, the various drafts of what would become the UCC in the 1940s and finally the publication and approval of Article 2 in the 1950s. The topic that got me distracted in my original search into the history of sales law was in section 4 of the USA, on the statute of frauds (1677). As usual, when I begin to read, I get hung up in the first sentence or even first few words and find myself unable to continue. So it happened here. It happened as follows. The first words of sec. 4 say: "A contract to sell or a sale of any goods or choses in action..." Oops. Choses in action. I knew what a chose in action was; I am not that dumb. It is an instrument on which you can sue. But I wanted to get into the concept of a chose in action, because I thought that it had to be more difficult than that. Indeed, it is. I could easily have taken two roads on this quest, then. I could have tried to study how it was that the definition of a chose in action developed and expanded over time, taking ever more concepts under its umbrella, or I could have tried to focus on what turned out to be an interesting but terribly obscure legal issue of the 19th century: the assignability of choses in action. I need to get back to both of those topics this afternoon.

But, for now, I am hung up on some words from the 17th century and some legal concepts mentioned above. The next essay treats some of these.

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