parties have embodied a transaction in a document, the writing is indisputable as to the terms of the transaction, how far back in our history does this rule go, and what were the circumstances of its origin and development? . . . Our primitive system knew it not. Only towards the end of the middle ages does it come into being; and only in fairly modern times does it gain complete recognition. Its history falls, by a rough division, into three periods, I. from primitive times till the vogue of the seal in the I2oos; II. then, on English soil, till the staute of frauds and perjuries, in 1678; III. and thence, its mod ern recognition. I. In the primitve Germanic notions of the time of the barbarian invasions and under the Merovingian and Carlovingian monarchies, there was certainly no notion of the indisputability of the terms of a docu ment. . . . In this stage, then, the carta merely plays a convenient part, first, by enabling the formal delivery of the land to be made svmbolically away from the premises, and, next, by preserving against future forgettulness the names of the witnesses. The important and unquestionable fact is that the tenor of the writing does not legally and bindingly establish anything. . . . II. The rise of the seal brings a new era for written documents, not merely by furnish ing them with a means of authenticating genuineness, but also by rendering them in disputable as to the terms of the transaction and thus dispensing with the summoning of witnesses. The vogue of the seal and of the transaction-witness wax and wane, the one relatively to the other. This legal value of the seal was the result of a practice working from above downwards, from the king to the people at large. It is involved, in the beginning, with the principle that the king's word is indisputable. Who gives him the lie forfeits life. The king's seal to a document makes the truth of the document incontesta ble. This leads, along another line, to the modern doctrine of the verity of judicial rec ords,—to be noticed later. Here, for private
men's documents, its significance is that the indisputability of a document sealed by the king marked it with an extraordinary quality much to be sought after. As the habitual use of the seal extends downwards, its valu able attributes go with it. First, a few counts and bishops acquire seals; and then their courtesies are sought in lending the impress and guarantee of their seal to some docu ment of an inferior person, as serving him in future instead of witnesses. Finally, the ordinary freeman comes usually to have a seal; and his seal too makes a document indisputable—4t least, by himself. This ex tension of the seal begins in the loóos, and is completed by the 12005. Thus the old regime of proof by transaction-witnesses disappears by degrees; by the 13005 they are almost superfluous. . . . For mercantile contracts, the advance seems to be settled by the 13005. But for land-transactions there is more tardy prog ress. ... By the time of Coke's Com mentary upon Littleton and of Sheppard's Touchstone, by the i6oos, on the whole—the modern rule of indisputability is established for all transactions affecting reality. . . . But, meantime, what of the theory of the rule? At the outset, in the Anglo-Norman times, as already noticed, it arises merely as a testimonial rule; the writing replaces the transaction-witnesses as a mode of proof. But in its modern shape it is a constitutive rule; the writing itself is operative; the writ ing is the act, not merely one of the possible ways of proving the act. By what sequence of ideas was this transaction of theory ef fected? (1) At first, the new principle appears merely as a waiver of ordinary proof, permit ting the substitution of another. The man who has sealed a document is not allowed to bring his transaction-witnesses or his compurgators to prove what the transaction really was; he has in advance waived this right. . . . (2) Alongside of this theory, but playing gradually a more important part, was the theory that a transaction of one "nature" cannot be overturned by anvthing of an in
