RECORDING DEEDS IN AMERICA from which the Plymouth provision for acknowledgment was copied. The subse quent proceedings are, however, different from those that prevailed in America. The deed having been acknowledged was pro claimed in open court, and, no one appear ing to deny it, it was enrolled as a judicial acknowledgment and had force as res judica a. The provision for acknowledgment, which was found in the borough customs, was not unknown in the manorial courts. Thu i when a mortgage on a copyhold interest was paid off, the mortgagee made acknowl edgment before the lord or his steward of the payment.1 When a feme covert owned copyhold lands, she might join with her husband in a surrender; in which case she must be examined by the steward apart from her husband.2 These points are re markably like certain features of our land system. The Plymouth practice of ac knowledgment originated, as has been seen, during the governorship of William Brad ford, and the ordinance by which acknowl edgment was required was passed while Edward Winslow was governor. These two men, the greatest leaders of the colony, seem to have adopted this practice of acknowledgment either from borough or from manorial customs with which they had been familiar in England. It is possible that the Plymouth ordi nance, so far as the provision for recording was concerned, was based upon the English law as to the enrollment of bargains and sales. I have already pointed out that the Plymouth deeds were deeds of bargain and sale, which was to become the typical 1 i Watkins Copyholds 184. This is very similar to the earliest recorded instance of an acknowledg ment in the Plymouth records, above mentioned. • Ibid 101.
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American form. The provision that the deed should be recorded is not unlike the provision of the English law.1 Be that as it may, this portion of the Plymouth act did not influence the Massachusetts ordi nance of 1640; and there seems to be noth ing in that ordinance which is based upon the English law for enrolling bargains and sales. The local customs by which a registry was provided in York and in Middlesex are more likely to have influenced the Massa chusetts ordinance. The ordinance pro vided for recording in districts, and to that extent it followed the plan of the local registry. But the English customs pro vided a record of the deeds only for the purpose of safely keeping the evidence. No additional power was given to the deed by reason of its being recorded; the county merely furnished a safe place of deposit for the deeds of such persons as chose to avail themselves of it. The leg islators of Massachusetts, therefore, de rived at most nothing more than the pro vision for recording the deeds in the local registries from this source. The most distinctive feature of the American system, the priority given to the earliest recorded deed, appears to have no prototype among foreign systems. It was foreshadowed in the ordinance providing for books of possessions, and was fully developed by the earliest settlers of Massa chusetts as a remedy for difficulties newly felt as consequence of the democratic land-holding system of the Puritan Com monwealth. The distinctive features of the American system of recording deeds are therefore indigenous. Cambridge, Mass., May, 1907. 1 27 Hen. VIII, chap. 16.
