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Law of dates.
As soon as attestations began to be general, we find the signatures to have been made by persons residing in the most distant parts of a county, as well as in the immediate neighbourhood of the parties interested; and, from the great number of names contained in the major part of them, both Saxon and Norman, it is evident that these instruments were executed at courts lect, county courts, or other large assemblies of the sheriff and freeholders.* In stating the law on this formal part of a charter, Petersdorf has a note of so much historical importance, as to obviate the necessity of an apology for its introduction: “ The attestation by witnesses,” he says, " is not essential to the deed itself, but only constitutes the evidence of its authenticity. Mr. Justice Wyndham remarked that he had seen several deeds made in Queen Elizabeth's time without witnesses. Modern deeds are nothing more than an improvement or amplification of the breria testata, mentioned by feodal writers, which were written memorandums introduced to perpetuate the tenor of the conveyance and investiture, when grants by parole became the foundation of frequent
489. “ Hoc denique sciant omnes quod rex per cultellum eburneum quod in manu tenuit et abbati porrexit hoc donum peregit apud curiam, testimonio virorum illorum nomina quorum infra scripta dinoscuntur."--Ibid. Chart. n. V., p. 497.
* Nearly the same view has been taken by Messrs. Nicholson and Burn. “ The sheriff is often mentioned as a witness to ancient grants, together with divers of the principal gentlemen of the county; and the reason is, these matters, for the greater notoriety thereof, were frequently transacted in the county court, which in ancient times was the court for almost all business.”—“Subscribing witnesses were not usual in those days, nor till many ages after. And therefore the writings only mention such and such persons
as witnesses, who were generally the principal persons for rank and distincEarly con- tion there present. The truth is, very few people could then write, not even veyancers. persons of the highest rank and eminence, &c.” Clericus, which is often
affixed to the names of witnesses, they add, does not always signify a clergyman, for this they expressed by persona, or, if not beneficed, by capellanus. Clericus seems commonly the person who wrote the instrument. Gilbert de Wateby was a common conveyancer in the north of England, in the reign of Henry the Third.-/list. Westm. & Cumb., Vol. I., p. 33, note.
dispute and uncertainty. To this end, they registered in the deed the persons who attended as witnesses, which were formerly done without their signing their names, (that not being always in their power); but they only heard the deed read, and then the clerk or scribe added their names in a sort of memorandum. • Hiis testibus Johanne Moore, Jacobo Smith et aliis ad hanc rem convocatis.' This, like other transactions, was originally done coram paribus, and frequently when assembled in the court baron, hundred or county court, which was then expressed in the attestation, teste comitatu, hundreds, &c. (Spelm. Gloss. 228.) Afterwards the attestation of other witnesses was allowed, the trial in case of a dispute being still reserved to the pares, with whom the witnesses (if more than one) were assisted and joined in the verdict, till that also was abrogated by the statute of York, 12 Edward II., St. 1, c. 2; and in this manner, with some such clause of hiis testibus, are all old deeds and charters, particularly Magna Charta, attested. And in the time of Sir Edward Coke, creations of nobility were still witnessed in the same manner; but in the king's common charters, writs, or letters patent, the style is now altered; for, at present, the king is his own witness, and attests his letters patent thus; teste meipso, witness ourselves at Westminster, a form which was introduced by Richard the First, (Madox, n. 15,) but not commonly used till the reign of Henry the Eighth, (Ibid., Diss., fo. 32,) which was also the era of discontinuing it in the deeds of subjects, learning being then revived, and the facility of writing more general; and therefore ever since that time, witnesses have usually subscribed their attestations at the bottom or on the back of the deed.*
In consequence of the very great publicity with which the conferring of immunities, and the erection or transference of a manor, were transacted in early times, an opinion might be induced that a date was unnecessary in such cases; and,
Abridgm., Vol. VII., p. 664 note.
in fact, it is not now an essential requisite.* The date I.
being optional, some charters are found with, and some without indications of the time of publication. The peculiar circumstances of the Saxon monks after the conquest,
might have led them to omit dates in the numerous Forgeries Latin charters, which they forged in order to secure of the Saxon themselves in their possessions. The practice, thus intro
duced, would be readily adopted by the Norman invaders, who employed every expedient to plunder them. The Normans were constantly demanding a sight of the written evidences of their lands, and the monks well knew that it would have been useless or impolitic to produce these evidences or charters, from which, the former, besides
being ignorant of the language, entertained a strong averPrevalence sion. They abhorred the Saxon idiom, and administered of the French
the laws and statutes in French; even boys in schools were language. taught French and not English grammar, so that the
English, that is the Saxon, manner of writing was lost, and the French manner used in all charters and books. The monks were, therefore, compelled to the pious fraud of forging their evidences in Latin, and great numbers, till lately supposed original, are still extant. It is not, however, to be supposed that English was totally neglected, even under the Norman princes. Some of the charters of
With regard to the date of a deed, says Mr. Cruise, it may be placed at the beginning or at the end. In decds indented, it is now usually placed at the beginning; and in deeds poll at the end.—It is not, however, absolutely necessary that a deed should be dated; for if a deed bears no date, or has an impossible date, it will take effect from the time of its delivery; and the time of their delivery is presumed to be the time of their date, unless the contrary appears. Deeds take place according to priority of their dates, or times of their delivery ; it being a maxim of the common law, qui prior est in tempore, potior est in jure.—Digest, Vol. IV., ch. 20, s. 2, 3, 4, 5, p. 275, 276.
+ Ingulfus, p. 61.
# Warton, Hist. Engl. Poetry, Vol. I., p. 3, cites Spelm. in Not. ad Concil., p. 215. Stillingf. Orig. Eccles. Brit., p. 14. Marsham, Præfat. ad Dugd. Monast. Wharton, Angl.-Sacr. Præ., pp. ii, iii, iv. Ingulf., p. 51.
William I. himself, are in Saxon, and St. Godric and BOOK
1. Layamon composed their poems in their native language. A proclamation issued in the 43rd of Henry III., is extant Saxon proin Somner, * Hickes,t Hearne, I and the new edition of
in the 13th Rymer's Federa. It is certainly written in Normanno- century. Saxon, though Lord Lyttleton considers it to be “ old English,” a very loose and indefinite description, for pure Saxon may be so denominated. Robert of Gloucester, in this reign, has a passage in which he says, that the Nor- Norman
contempt of mans could speak only their own tongue, and that the high- the English men of the land, who sprang from their blood, held all that language. speech, which they received from them; for if a man could speak French he was well spoken of. But low men held to English, their native language. And he weens that there is no man in any country in the world, except England alone, that does not hold to his native speech. But well he wots, that it is good to know both; for the more a man knows, the more is he worth. The passage itself is a specimen of English at this period :
". And þe Normans ne coupe speke po bote her owe speche
* Dict, ad v. unnan.
Text. Roffens. in fine.
Rot. Pat., 43 Hen. III., m. 3, n. 40. | Rob. of Glouc. Chron., p. 364. It will be observed that only two Saxon letters occur in this extract, which is a good specimen of the language throughout the poem. These are the þ or Thorn, improperly called Theta by Spelman and others; and the y, our y; but in the contemporary proclamation, all the characters are Saxon, and the orthography is, in many por
Eight years after the Saxon proclamation of Henry the Third, the first French statute was enacted.* Mr. Hallam notices a proclamation of Edward the First, in the Fædera, where he endeavours to excite his subjects against the king of France, by imputing to him the intention of conquering the country, and abolishing the English language, which is frequently repeated in the proclamations of Edward the Third.+ It is still more singular that the preamble of the statute of 18 Edward III., st. 2, which is itself in French,
alleges the very same imputation against the French Oldest deed king. However, in this reign, we find the oldest English in English. instrument known to exist. It bears the date of 1343;
and, in 1362, a statute, written in Norman-French, was passed, requiring that all pleas in courts of justice should be pleaded, debated, and decided in English.Ş Rymer has inserted an instrument in English, dated 1385. Ralph Iligden, about the latter part of the reign of Edward the Third, says, that gentlemen's children are taught to speak
French from the time they are rocked in the cradle; and General uplandish men, (i. e. countrymen, lower classes,) will liken affectation themselves to gentlemen with great business for to speak of French.
French, for to be the more told of; which is the very re-
“ And French she spake ful fetously
tions of it, superior to that which prevailed in the reigns of Steplien and
* Stat. 18, Edw. III., st. 2. Barrington, Observ. on Anc. Stats., p. 258.
Ritson, p. 80.
Stat. 36 Edw. III., st. 1, cap. 15; enforoed by 4 Geo. II., c. 20, and 6 Geo. II., c. 14.