sealed instruments and history and sealed instruments at common law

History of Sealed Instruments II

Bill Long 11/30/05

Relaxing a Rigid Rule

We should begin with just a word on the advantage of having sealed instruments at common law. First, it impressed upon everyone (pun intended) the seriousness of the action contemplated (contract, will, land transfer). Second, it allowed for something that the "modern" law of contracts doesn't consistently allow--the enforceability of a gratuitous promise. That is, if X promises to Y (a beggar) that X would give him an overcoat, and does not do so, Y has no grounds in current law to enforce the promise. It is a "mere gratuitous promise." Yet, at common law, if X had made that same promise in a sealed instrument, it would have been enforceable.*

[*I don't know the answer to the question of when non-sealed document contracts entered into the common law, whether they were parallel phenomena with sealed contracts and to what extent one had a "choice" in entering into one or the other type of contract. Typically, a sealed-instrument contract allowed a much longer limitations period to sue on than a simple contract.]

But there seemed to be one major disadvantage of having them. The person who made such a contract had to have some kind of coat of arms or signet ring, possibly with the family crest, which would be affixed to the documents. But what about if a ready supply of wax wasn't at hand? What about if a person became educated, learned to write, and realized that the notion of a signature was just as valid as a seal?* Would the seemingly authoritative word of Coke still prevail?

[*This provokes another interesting historical question, doesn't it, about how, when and where the authority of the signature developed in legal documents. Anyone have a clue?]

Telling the History from Another Perspective

Before going on to the way that the notion of seals was eroded in American law, it might be helpful to quote an obscure passage from a 1527 book entitled Termes de la Ley or Certain Difficult and Obscure Words and Terms of the Common and Statute Laws of This Realm, Now in Use, Expounded and Explained, by John Rastell (d. 1536). It was first published in French with a Latin title page, but was translated into English in the 18th century. Under the heading DEEDS, he has the following story:

"[At the time of the Norman conquest] they used to engrave in their seals their own pictures and counterfeits, covered with a long coat over their armours. But after this, the gentlemen of the better sort took up the fashion, and because they were not all warriors, they made seals engraven with their several coats or shields of arms, for difference sake, as the author reports. At length about the time of Edward III (i.e., 1327-77) seals became very common; so that not only such as bear arms used to seal, but other men also fashioned to themselves signets of their own devices, some taking the letters of their own names, some flowers, some knots and flourishes, some birds and beasts, and some other things, as we now yet daily see used. Some other manners of sealings besides these have been heard of among us; as namely, that of King Edward III, by which he gave to Norman the Hunter,

"The hope and the hop town,
With all the bounds upside down:
And in witness that it was sooth,
He bit the wax with his fore tooth."

... "I, William, King, give to thee Plowden Royden, my hop and hop lands, with all the bounds up and down, from heaven to earth, from earth to hell for thee and thine to dwell, from me and mine, to thee and thine, for a bow and a broad arrow, when I come to hunt upon yarrow. In witness that this is sooth, I bit this wax with my tooth, in the presence of Magge, Maud, and Margery, and my third son Henry" (quoted in the first edition of Corbin on Contracts, sec. 240. This wonderful quotation has dropped out of the more "modern" versions of Corbin).

Would this be called "sealing by dentition?" Though Coke might have been insistent that all sealed documents had to have the impression in wax, he probably didn't intend that the teeth of the monarch would qualify for a "sigillum."

Seals in America

Once you arrive in America the two basic assumptions behind the law of sealed instruments no longer obtain. First, many, many people had learned how to read and therefore could sign their names and, second, the use of signets, coats of arms and other signs of nobility were no longer used. Indeed, they were disparaged. So, how would this doctrine of the sacredness of the sealed instrument fare in democratic America? In fact, there was no reason to eliminate the idea of a sealed instrument, since it represented something that America wanted as well: serious contracts. But what would be the role of the seal? And, to be quite practical, what would be the role of wax? Was it essential to have a "serious contract" that you have some kind of sealed document? Would a simple signature do? And, how many "levels" of contracts would you then have? All of these questions swirled around the minds of courts in the 19th century as America tried to come to grips with this issue which is no issue now, but bedeviled the courts and legislatures of this land for decades. The next essay will show how one state dealt with the problem.

1547