Sealed Instruments I--A Brief History
Bill Long 11/30/05
Anyone who studies the law of sales in America immediately confronts Article 2 of the Uniform Commercial Code. That Code was adopted by most states in the 1950s and 1960s, and has become the basis for effecting and encouraging commercial transactions in America. Article 2 is the Bible of the American free-market system. But there is one provision in that article that allures by its very brevity, and that is 2-203. It is entitled "Seals Inoperative." All it says is:
"The affixing of a seal to a record evidencing a contract for sale or an offer to buy or sell goods does not constitute the record a sealed instrument. The law with respect to sealed instruments does not apply to such a contract or offer."
The section is arresting for two reasons: (1) it explicitly says that a seal on an instrument does not make it a sealed instrument, and (2) it hints at the fact that there is such a thing as a "law of sealed instruments," which will not apply to Article 2 transactions. Whenever you have a contradiction in a legal statement, or a statement that appears jarringly inconsistent, as does the first sentence, you know that there is a fascinating history lying directly under the surface of such a statement. It is as if 2-203 may be likened to a door man at a house who, upon opening the door to you, solemnly declares that all is under control in the house when in fact you hear screams of anguish in the background as he tells you all is well. You simply want to enter and poke around for yourself. So, the purpose of these essays is to enter into the fascinating realm of seals in the history of the common law. My special interest is to understand how the symbolism of the seal broke down in America of the 19th century, and how that breakdown has actually occasioned problems in American law which the seal effectively solved. Let's begin, however, with some limitations.
What These Essays Does Not Do
I haven't been able to find answers to some of the following questions/issues. If you can help out, let me know. I don't know when seals were first used in the common law, and to which types of documents they were first affixed. Were the first sealed documents wills? land transfers? royal documents of some kind? When was this done? What is the relationship of a sealed instrument to a cause of action in covenant? When did the use of seals become regularized for various forms of action? Was it by statute or by decree or common law decision? These questions point to the related but important question of the history of "formal" documents in common law England--where forms have to be observed in order for validity to attach to the document. Now, let's move to what seems to be more sure.
The Seal and the Ceremony of the Seal
Law as well as theology only "work" in human life if you can convince people to take them seriously. That is, if no one thinks that medicine men or shamans have any power or can influence the economy in our society, they won't be given chairs on the New York Stock Exchange. If no one believes that legal opinions of robed judges make any difference, and if no officers of the law enforced their decisions, there would be no reason to take what they say seriously. How, then, did the church and law convince people to take them seriously? By elaborate ritual, combined with temporal or eternal sanctions. For example, the Medieval Catholic Church had the power of excommunication. Withholding the sacraments from someone could determine a person's eternal destiny. Therefore, the threat of excommunication could channel a person's conduct and bring them around to obedience.
Law, too, had its ceremonies. One of the most significant was the ceremony of sealing a document. In order to do this you had to have a number of things: (1) a parchment or paper on which certain promises were written; (2) wax that took a while to heat; and (3) a signet ring or other hard object with which to press on the heated wax which was affixed to the document. This impressed image then would function as both a signature and what current contracts law calls "consideration." The person was obliging himself to fulfill the duties spelled out on the parchment. We don't know when the requirements for this kind of document in the area of wills, land transfers and contracts emerged, but some scholars suggest a time around 1300--the time of Edward I.
So fixed was this ceremony in the mind of the common law that by the time of Edward Coke in the early 17th century, he could assert:
"Sigillum est cera impressa, quia cera sine impressione non est sigillum." Translated, this is, "Impressed wax is a sign (mark, signature), since wax without an impression is not a sign."
Though the second half of the sentence has a "duh" factor to it, we understand immediately what Coke is driving at. The thing that makes something a sealed instrument is the waxed impression. Thus, a person makes his mark or sign by pressing the item (ring) onto the wax. That is the way you make a sealed instrument. Because this principle was articulated in Latin by someone as authoritative as Coke, the statement carries a lot of weight. As we saw with Bacon's Maxim 23, a fancy Latin phrase not only gives the impression of great authority but it often retards the development of law. The next essay develops this theme.
Copyright © 2004-2008 William R.Long