« ПретходнаНастави »
phum" written across it, was cut through and divided Indenting of with a knife, each party was enabled, on any future occasion, by merely comparing the two parts together, at once to identify the instrument he had executed. Other words were often used instead of chirographum, such as “ Indentura,” “ Ave Maria,” or the first five or six letters of the alphabet (a). When cut through or indented, either in acute angles, instar dentium, as formerly, or in modum undularum, as at present, the deed is called an indenture; but when shaven evenly or polled, a deedpoll (6).
XI. From the time of the Conquest, the ancient use of seals. custom of subsigning charters with crosses -a mode still practised by the illiterate--gradually gave way to the Norman usage of affixing to them seals of wax. Both seals and crosses were occasionally used (c); but until the reign of Henry II. the privilege of using a seal hardly extended to any but princes and the greater barons (d). Seals were of various forms — round, oblong, or oval; and of various colours — red, green, or yellow. They were either fixed to a cautel of parchment cut from or appended to the
(a) Madox, Form. pp. 169, quest to the present time. The 269, et alibi.
double portraiture was borrowed (6) Madox, Form. Diss. p. 28; from the Conqueror's Great Seal, Bla. Com. ii. 295.
which, on one side, exhibits his (c) Madox, p. 27; Palgrave, effigy as the Duke of Normandy, P. 2, 216. In the British Mu- and on the other, as King of seum there is a collection of casts, England. nearly complete, from the Great (d) Palgrave, P. 2, 70, 216. Seals of England from the Con- Spelman's English Works, p. 254.
bottom of the charter, or fastened by silken or flaxen strings braided or wreathed together (a). Even the witnesses sometimes affixed their seals (6). Sealing is still essential to the validity of a deed; and Blackstone (c), who is blindly followed by others, supposes that since the 29 Car. II. c. 3, signing is also requisite. That statute, however, though worded loosely, hardly warrants such a construction (d).
Attestation of charters.
XII. There is another important ceremony used in executing charters, which is worth noticing-the Attestation. In ancient times the witnesses were exceedingly numerous, and until the reign of Henry VIII. (e), their names were commonly inserted in the charter itself — not by the witnesses themselves, many of whom were unable to write, but by the
clerk in their presence. The clause in which this Hijs Testibus. was done has been called the “Hijs Testibus.” It
is found in the charters both of private men and of kings. About the time of Richard I. another kind of teste,
said to be peculiar to the kings of England, was introTeste meipso. duced—the “Teste meipso.” It was at first used
in writs or mandatory precepts, but afterwards in royal charters ; and the same form was sometimes employed by the King's Chief Justiciar ($). Madox has endeavoured, with patriotic earnestness, to vindicate this usage against the ridicule cast upon it by
(a) Mados, Form. pp. 40, 42, this work, Book ii. chap. viii. et alibi.
(e) Spelman's English Works, (b) Madox, Form. Diss. p. p. 256. 28.
(f) Madox, Form. Diss. p. (c) Vol. ii. 306. (d) See the first volume of
Pope Pius; but what can reconcile us to the absurdity of one being a witness to himself?
XIII. Of the principal sorts of charters in ancient Carta Peoffatimes, the “Carta Feoffamenti” was the one most commonly used. Livery of seisin, called by the feud- Livery of seisin ists investiture, was so essential to the operation of a feoffment, that without it no estate could pass. There were various ways of giving seisin. In 1096 King William II. gave the Abbot of Tavistock seisin of the manor of Wlurinton, per cultellum eburneum; whereupon the knife, which had words of donation engraved on its haft, was laid up in a shrine of the abbey. Madox, who cites this instance, has enumerated various other symbols (a); but he omits to mention that they were sometimes very richly orna mented. One entailed by Lord Ormond, in 1515, is Lord Ormond's thus described by him in his will :-“The lytle whyte horne of ivory, garnished at both thendes with gold, and corse thereunto of whyte sylke, barred with barres of gold, and a tyret of gold thereupon, which was myn ancestours at fyrst time they were called to honour, and hath sythen contynually remained in the same blode (6).”
XIV. The act of enfeoffing was often performed Act of enfeof.
ing, how perin the hundred or county court, (as in the Anglo- forined.
(a) Madox, Form. Diss. pp. the first of his family, butler of 9, 10.
Ireland, 1177, or on the crea(6) Archæologia, iii. 20. Mr. tion of the first Earl of Ormond Astle conjectures that this symbol by Edward I., when the county came into the family either on of Tipperary was made palatine. Henry II.'s a ppointing Theobald,
Saxon times), in the presence of a number of witnesses, who attested the transaction (a). In the absence of the feoffor, seisin was sometimes given by one deputed by him for that purpose. The King issued his writ, (precept or letters), to command the sheriff, provost, or other officer to deliver seisin; a subject made a letter of attorney, either by a distinct
instrument, or in the charter of feoffment (6). AnOperative
cient charters of feoffment usually contain the operative words “ dedisse, concessisse, et confirmasse," or “donasse,” and the term “ feoffavi” is sometimes met with. They were commonly made pro homagio et ser
vitio of the feoffee, to hold of the feoffor and his heirs; Quia eniptores but, after the statute Quia emptores terrarum, these 18Edw. 1, c. 1. words were omitted; and feoffments were then made
ad tenendum de capitalibus dominis feodi. This, it may be observed, put an end to the creation of those
petty manors with which provincial pride sought to Warranty. elevate itself into importance (c). A clause of gene
ral warranty was usually inserted, to which was often added the oath of the party. Coke enumerates eight formal parts of a feoffment, but the fifth, sixth, and seventh are not found in ancient charters (d).
XV. A still more solemn mode of conveyance was by Fine. Antiquaries have not determined at what
(a) Madox, Form. Diss. p. 24. grant a portion of it amongst his (6) Ibid. pp. 10, 11.
followers for service, rent, and (c) “ This statute stopt the suit of court; and by this means course of creating new manors, usurped by little and little the which in former times was so or- manner and fashion of a manor." dinary in our county of Norfolk, as Spelman's English Works, p. no man almost that had an hundred 250. acres of free land, but would (d) Madox, Form. Diss. p. 5.
period this species of assurance, which resembles the transactio of the Roman law (a), was first introduced into this country. Catlyn, who was Chief Justice in Origin of. Elizabeth's time, asserts the existence of Fines among the Anglo-Saxons; and Blackstone seems to have acquiesced in this opinion (6). Cruise, indeed, says that Fines could not possibly have been known in England until 1130, when a copy of the Pandects was found at Amalfi; which discovery, he supposes, first revived the study of the Roman law. But this popular story, which ought not to have been passed over without gloss or comment by the editor of Mr. Cruise's work, has been discredited by Savigny; and the inference drawn from it is certainly unwarranted; for, as that eminent jurist has shown, the Pandects were known in different parts of Europe long before the capture of Amalfi (c). Sir Francis Palgrave suggests that Sir Robert Catlyn's opinion was probably founded on the circumstance, that among the Anglo-Saxons hostile suits concerning land were often concluded by an amicable agreement before the witan, and commemorated in a charter, which thus became one of the evidences of title (d). Whatever view, however, may be taken of this question, all writers agree that no records of Fines have
(a) Cowell's Interpreter, verb. in England in the seventh cenFine; Co. Litt. 262 a.
tury; and Alcuin, in 804, when (6) Bla. Com. ii. 349. describing the school at York,
(c) Savigny, i. 442. And see speaks of jurisprudence as inHallam's Literature of Europe, cluded within the course of i. 81; Middle Ages, iii. 514. study. St. Aldelmus bears testimony (d) Palgrave, P. 1, 144. to the study of the Roman law