statute staple and statutes staple and counterfeit and history of seals and recognizance

This essay is dedicated to understanding or at least pausing on certain legal terms and other words or phrases I came across as I was researching the topics described in the previous essay. Let's begin with William Wetmore Story's division of "Contracts of Record" (which are one of three branches of the law of contracts, for him) into (a) judgments; (b) recognizances; and (c) statutes staple. I am not interested in the first. So, let's begin with what a recognizance is, er, was.

1. Recognizance. Before this word had a meaning in criminal law (to promise to apear in court on a particular day or to keep the peace), this word had a significance in contract law. It is derived from the Latin recognoscere, meaning "to acknowledge" or "to confess," and meant, "a bond or obligation, entered into and recorded before a court or magistrate, by which a person engages himself to perform some act or observe some condition (such as pay a debt)." It can also be a sum of money pledged as a surety for such performance. We could take a further detour here by talking about defeasance (if you default) or mainprize, which recognizance was meant to supplant, but these would be unhelpful detours. Chaucer (ca. 1386) was the first, apparently, to use the term: "He was bounden in a reconyssaunce, To paye twenty thousand sheeld anon." It was used 50 years later in the Rolls of Parliament: "Bounde by a reconysaunce in youre Chauncellerye, to paye to you at certain dayes in the same recognisance specified." Thus, a recognizance was a a debt obligation going back to at least the 14th century. It was included by Story as a "Contract of Record," because it was entered into in the presence of the court.

But I ran across another use of the term recognitio, which lies behind recognizance, in the history of seals. It happened in medieval England that the seal became of primary importance to authenticate a document. Signatures, which had been part of earlier Carolingian and Norman culture, were replaced by the seals, which themselves had a long and distinguished history. But who could have and use seals? At first only the royal household or the church had seals, but, as time went on (13th century), pressure arose for what was called the "private signet." But what, really, was a private signet worth? You could put your seal to a document, but if you ultimately had few goods to back it up, your seal wasn't worth much. Thus, there was a lot of interest in obtaining a sigillum authenticum-- an "authentic seal."

In a history which I don't fully know, I know that there arose a sort of business in seals, in order to make money for the crown or the church. Because a private seal was not worth much, you could, as it were buy a public seal on your document. It would cost you, no doubt, but if you could secure the public seal, it would be tantamount to saying that you were good for your word (what I don't know, however, is whether a legal obligation was being assumed by the government or church if you could "purchase" the seal of those entities?). In order to get this seal of approval, so to speak, you had to present yourself before a judge and make acknowledgment (recognitio or confessio) of the execution of a contract, which acknowledgment the judge recorded in the form of a letter, called a "letter of acknowledgment." So, the recognitio was a solemn acknowledgment of a debt owed to another or a contract entered into in front of a judge. Now we know why this is a "contract" or a "document" of record.

2. Statute staple. Story lists the "statutes staple" as another form of "Contract of Record" recognized at common law. The statute staple is really a kind of subset of the "statute merchant," which goes back to Edward I (13 Edw. 1). In the "statute merchant," a merchant entered into an acknowledgment before the chief magistrate of some trading town that if he entered into debt at the market, his goods could be seized in satisfaction of the debt, and not his goods only but his lands could be delivered to the creditor so that rents and profits from them could be extracted to satisfy the debt. In addition, the body of the debtor might be imprisoned while this was going on. We see, then, that the statute merchant is a kind of "private recognizance." The "statute staple" was passed during the reign of Edward III in 1353 (27 Edw III, stat. 2) and had similar provisons to the "statute merchant." One of the issues confronting the monarch in the mid 14th century was the desire to centralize the legal action in England under their control. The "statutes staple" became involved in this problem.* Because the oath was

[*As you no doubt believe, the issue is far more complext than I can indicate here. A good basic review of some of this material is by Kevin M. Teevan, "A History of Legislative Reform of the Common Law of Contract," 26 U Tol LR 35 (1994).]

taken in the presence of a public official, it could be included as a sort of "contract of record."

3. A third word that brought me up short in my reading in the last few days was counterfeit. I thought I knew what counterfeit meant until I ran into it in Rastell's 1527 dictionary in the following sentence: "[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." What does it mean to engrave in one's seals a "counterfeit?" The word is derived from the Latin and French meaning "to make in opposition or contrast, hence, in opposing imitation." The original English signification, going back to the 14th century, means both "imitated" and "forged." But the "forgery" aspect is there from the beginning. From 1393: "This letter..was counterfet in suche a wise, That no man shulde it apperceive."

But the language was supple enough also to have a usage which simply meant "imitated or represented in a picture or image; portrayed." We have the authority of Shakespeare and Dickens for usage in this way. From Hamlet, "Looke here, upon this Picture, and on this,/ The counterfet presentment of two Brothers." And, from Nicholas Nickleby, "To infuse into the counterfeit countenance of Miss Nickleby a bright salmon flesh-tint." I suppose, then, that in the quotation given from Rastell above a counterfeit would be an imitation less precise or exact than the 'picture,' but still an imitation of it. And now, since thoughts of love are on my mind today, I will leave this essay with another quotation from Shakespeare. From MoV: "What find I here? Fair Portia's counterfeit." Would that we could recapture the true sense of counterfeit...

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