Sealed Instruments III
Bill Long 11/30/05
New York's Attempt to Deal with Sealed Instruments
The question for America in the 19th century, then, was how or whether the requirement of an actual seal would be relaxed for formal documents. Did a will, a contract, a deed, which had historically required a seal, still require one in America. Would a signature just be enough? Did you need both?*
[*The phrase "signed, sealed, and delivered" no doubt emerged from this period, and not with Stevie Wonder, but I don't know the exact history of that term. I did a little research in August 2007 on this issue, and I found a 1738 case from the "Propriety Province of Maryland" which not only uses the phrase but says that it is quoting from a deed made in 1663 which ended with this phrase. Thus, I think we have traced it back well into the 17th century. Other phrases could be used..."I have hereunto set my hand and seal" or "As witness this our hands..."]
In the early days of the 19th century, the classic statement of American law wea the Commentaries compiled by Chancellor James Kent. In discussing the 1810 case from New York (Warren v. Lynch, 5 Johns. 238), Kent said:
"A scrawl with a pen is not a seal, and deserves no notice...The calling a paper a deed will not make it one, if it want the requisite formalities...The policy of the rule consists in giving ceremony and solemnity to the execution of important instruments, by means of which the attention of the parties is more certainly and effectually fixed, and frauds less likely to be practiced upon the unwary."
Later in his work, Kent fulminated against one of the recent developments in "seal law"--the substitution of the scroll or a flourish of the pen for a real live, wax-impressed seal:
"This is destroying the character of seals, and it is, in effect, abolishing them, and with them the definition of a deed or specialty, and all distinction between writings sealed, and writings not sealed...To abolish the use of seals by the substitution of a flourish of the pen, and yet continue to call the instrument which has such a substitute, a deed or writing, sealed and delivered within the purview of the common or the statute law of the land, seems to be a misnomer" (Vol 4 at 453).
The Floodgates Open
But Kent's protest was unavailing. The use of wax or a like adhesive substance was relaxed by the NY Legislature in 1829 for courts and public officers. This statute (which appeared in 2 Revised Statutes 404, sec. 61) provided that an impression could be made directly upon paper (i.e., without wax), and in 1848 this privilege was extended to corporations. But the real change in New York occured in a statue passed by the legisature in 1892. In the only law I have ever seen that used the word "mucilage," it provided:
"The private seal of a person, other than a corporation, to any instrument or writing shall consist of a wafer, wax or similar adhesive substance affixed thereto, or of paper or other similar substance affixed thereto, by mucilage or other adhesive substance, or of the word 'seal,' or the letters 'L.S.,' opposite the signature" (NY Laws of 1892, ch. 677, sec. 13).
Notice the last 12 words. Not only could the seal and wax be used, as in the common law, but now the word "seal" or the "letters L.S." could be used. The latter stands for "locus sigillae," or "the place of the mark or signature." This statute signifies an erosion that had taken place in the 19th century. As Eric Mills Holmes, the editor/author of the latest volume of Corbin on Contracts which covers sealed instruments, said, during the 19th century the accepted forms of seal included:
"wax, a gummed wafer, an impression on the paper itself, the word 'seal,' the letters 'L.S.' or any mark intended to be a seal (often called a scroll or scrawl) (Holmes words first appeared in 29 Willamette LR (1993) at 634-35).*
[*One wonders to what extent the development of the noun and verb "scrawl' is from its poor attempt to draw a 'scroll' in trying to replace the strict common law requirement of a wax seal with something more easily accessible. Thus, if your 'scrawl' was written, it would be as if you were trying to imitate a 'scroll,' an earlier acceptable substitute for a seal in some quarters.]
But courts had tremendous latitude with statutes that developed in the 19th century because many of them had open-ended statements at the end like the statement just quoted--where anything that was 'intended' to be a seal would function as this for purposes of a sealed instrument. Eventually this became rather comical, hwoever, as courts interpreted a pen-mark no bigger than 1/8 inch in length at the end of one's signature to be a "seal," for the purposes of the legal requirement of a sealed instrument. However, courts had also to deal with the issue of whether the text itself had to say something to the effect that a person was setting his seal on the document in order for a little pen mark to be accepted as a seal.
By the begining of the 20th century, then, jurisdictions were in considerable disarray about what you needed in order to have a "sealed instrument." In fact the seriousness of the notion of sealed instrument, originating in Medieval England, had been completely lost by this time. Was a signature the same as a seal? Did you need some other independent symbol? What, in fact, was the difference between a sealed instrument and a "normal" contract?
While most states today do not recognize a sealed instrument as special in any way, about 20 or so still do (as Holmes points out in the article cited above). But, the crazy-quilt patchwork of state statutes is bewildering. And, not only that. It seems that with the rush to get rid of the common law of sealed instruments that one of the centrally important functions of common law seals has been lost--the ability to contract for a gratuitous promise.
So, I lament the loss of seals, but I lament even more the fact that the UCC, Article 2, just mentions them only to dismiss them. Wouldn't it have been better to point to some of this rich and interesting history, a history that may tell us as much about ourselves as a more "sexy" history of the 19th century?
Copyright © 2004-2008 William R.Long