Objects as a means of authentication
Before the use of written charters became common, objects would be used to preserve memory and provide evidence of an act, especially when obtaining title to a property. The object served as a symbol of the conveyance. For instance, Earl Warenne gave a gift to Lewes Priory in 1147, and both he and his brother had hair from their head cut off by Henry of Blois, bishop of Winchester before the altar for retention by the Priory as evidence of the gift,1 although by the reign of Henry II judges began to refuse to take cognizance of symbolic objects other than sealed writings. However, the production of an object could still be adduced as evidence, and knives were used for this purpose, especially for a conveyance.2
In England, there was a time when a personal signature was not accepted as a lawful mark of authentication on a document unless the person signing the document was a Jew. A Christian was required to sign with a cross, or their signum was affixed to the document in the form of an impression of a seal.3 Seal impressions were made in malleable metals, such as gold or silver, while the papacy used lead. The use of metals prevented the impression from being attached directly to the document, which meant the seal had to be attached to the document in some other way, such as with a piece of string. Sealing wax, which is an amalgam of beeswax and resin, then began to be used. Beeswax becomes malleable when gently heated, and resin acts as an adhesive. In the sixteenth century, shellac was introduced as a seal material, and remains popular today. By 1300 in England, the use of seals had permeated society to such an extent that serfs and villeins were using documents, especially to convey property. The use of seals has a long history in many parts of the world, including China, Japan and Korea, where they continue to be used daily.4
Clanchy has observed that there would be occasions when the addition of the sign of the cross or the impression of a seal on a charter was not considered a sufficient means of authentication. Hence documents would include a list of witnesses attending the event in which the promise was made. In such cases, the emphasis would have been on the public ceremonial attendant upon the transaction.5 It was also possible that parties would rely on the particular handwriting of a scribe to establish the authenticity of a document.6 The test of distinctive handwriting was acknowledged in the Statute of Merchants of 1285, requiring all merchants to have their debts recorded before the mayor of London, or before similar authorities in other cities and towns, as designated. Each bond was to be written by a nominated clerk, and the bond had to be enrolled in the hand of the clerk who was known to the persons to whom the bond was addressed. The handwriting of the clerk acted to authenticate the text written in the bond.7
Iris Agmon observed a similar practice in the Jaffa court records, where the act of authentication was solely for the purposes of the court:
Prior to the 1879 regulations, a significant characteristic of the practice of signing records, mostly registrations, as inscribed in the Jaffa court records, is that it was often the scribe who signed on behalf of the person whose signature was needed. Hence, it seems that the court documents were rendered official by the format of the title of the signatory and the name written below this title by the scribe, and not by the authentic handwriting of this person. Sometimes the title alone without the person’s name sufficed. This format, when attached to the relevant record written by a court scribe in a volume of court records, validated the document as an official record of the court. It is worth noting in this regard that the purpose of these signatures was not to approve the content of the record or its authenticity outside the court, for these records would be preserved only by the court personnel.8
Such documents were copied into the court records word for word in their totality, and attempts were made to imitate the shape of the text on the original paper, including signatures and seals. It is suggested that this practice was linked to the centrality of the ambivalence of Islamic law regarding the reliability of written documents. Islamic legal doctrine regarded oral testimony generally as more reliable than written texts: ‘Apparently, by imitating the shape of the original document, the scribe was attempting to render the written text in terms of its orality, as if the exact reconstruction of the original shape of the text was a trace of the oral testimony or instruction given by its author in court.’9
The presumption about what constitutes a signature is predicated on the concept of literacy. Evidence from anthropological studies of non-literate societies and sociological studies of people living in deprived areas of the industrialized world suggests that literacy itself is primarily a form of technology.10 This is reflected in the history of literacy, because in medieval society it was rare for the most educated people to know how to write. There was no value placed on a personal signature. Documents were ratified with a cross, because the cross was a solemn symbol of Christian truth. This method of authentication was retained after the conquest of England by the Normans in 1066,11 and is illustrated in a grant dated 1068–76 by Waleran of property at Bures St Mary, Suffolk, to St Stephen’s Abbey, Caen, attested by William I, Queen Matilda, John of Bayeaux, bishop of Rouen, and Roger and Robert Beaumont, with their names added by the scribe next to each cross.12
Sometimes two copies of a document, whatever the subject, would be produced. This form of document was known as a chirograph, dating from the ninth century or earlier. A chirograph might record an agreement between two parties, including a marriage settlement, conveyance of land or repayment of a loan. The text was written twice, usually on the two halves of one side of a piece of parchment. When written on the same parchment, the two halves were separated by being torn or cut into two pieces, usually with the edges forming a wavy line or a zigzag as a precaution against forgery or alteration.13 In addition, the scribe would add text across the division, such as the word CHIROGRAPHUM.14 Each party would be given one of the halves of the parchment, duly authenticated by the impression of the seal of the other party, and each piece served to authenticate the other. This practice was so popular that chirographs became known as indentures. Tripartite chirographs were also widely used in England for drawing up wills in the tenth and eleventh centuries.15
1 M. T. Clanchy, From Memory to Written Record: England 1066–1307 (2nd edn, Blackwell 1993), 38, where further examples are given.
2 Clanchy, From Memory to Written Record, 39, 257–259 indicating knives were often used to convey land, and the blade had to be broken in the process.
3 Clanchy, From Memory to Written Record, 233; P. D. A. Harvey and A. McGuinness, A Guide to British Medieval Seals (University of Toronto Press 1996), 1. P. M. Barnes and L. C. Hector, A Guide to Seals in the Public Record Office (2nd edn, HMSO 1968) illustrates on page 3 that the meaning of ‘seal’ is the actual impression that was attached to a document, and the ‘matrix’ or ‘die’ is the implement which makes the impression. The words ‘matrix’ and ‘die’ will not be used for fear of making the subject far too technical.
4 For the importance of the Great Seal in the political context, see Hugh Hanley, ‘“The last shadow”: negotiating the Great Seal and direct access to the king, 1931’ (2015) 26 Irish Studies in International Affairs 257; Peter Walne, ‘The Great Seal deputed of Virginia’ (1958) The Virginia Magazine of History and Biography 3; Gwilyn Dodd, ‘Trilingualism in the medieval English bureaucracy: the use – and disuse – of languages in the fifteenth-century Privy Seal Office’ (2012) 51(2) Journal of British Studies 253; for discussion of where a seal was forged to falsely represent that a painting was by a particular painter, see Yu Leqi, ‘A problem of attribution: a rediscovered Chinese landscape painting in the University of Pennsylvania Museum’ (2017) 72 Arts Asiatiques 153; further items of interest include: Lamia Balafrej, The Making of the Artist in Late Timurid Painting (Edinburgh University Press 2019), ch 5 ‘Wondrous Signature’; Li Xueqin, (trs) K. C. Chang, Eastern Zhou and Qin Civilizations (Yale University Press 1985); Susan M. Johns, Noblewomen, Aristocracy and Power in the Twelfth-Century Anglo-Norm Realm (Manchester University Press 2003), ch 7 ‘Seals’; Brigitte Miriam Bedos-Rezak, Seals – Making and Marking Connections across the Medieval World (Arc Humanities Press 2018); W. P. Wallace, ‘The Public Seal of Athens’ (1949) 3(2) Phoenix 70; Lothar Wagner, ‘Art as an instrument for political legitimation during the Tang: “The small seal script and the legitimation seal”’ (1997) 40(2) Oriens Extremus 159.
5 Clanchy, From Memory to Written Record, 295.
6 On the forgery of early charters, see Christopher N. L. Brooke, ‘Approaches to medieval forgery’ (1968) 8(38) Journal of the Society of Archivists 377; Bruce O’Brien, ‘Forgery and the literacy of the early common law’ (1995) 27(1) Albion: A Quarterly Journal Concerned with British Studies 1; Alfred Hiatt, The Making of Medieval Forgeries: False Documentation in Fifteenth-Century England (The British Library 2004); David Cannadine (ed.), Westminster Abbey: A Church in History (Paul Mellon Centre for Studies in British Art in association with The Dean and Chapter of the Collegiate Church of St Peter Westminster 2019), 14–15, 16, 17, 21, 34–35, 46, 363–364, 381.
7 Clanchy, From Memory to Written Record, 307; see also F. W. Shipley, ‘The Vatican Codex of Livy’s third decade and its signatures’ (1910) 4(4) The Classical Quarterly 277.
8 Iris Agmon, ‘Recording procedures and legal culture in the late Ottoman Shariʿa court of Jaffa, 1865–1890’ (2004) 11(3) Islamic Law and Society 333, 353.
9 Agmon, ‘Recording procedures and legal culture’, 354–355.
10 Clanchy, From Memory to Written Record, 7.
11 W. S. Holdsworth, A History of English Law, III (3rd edn, Methuen), 231.
12 Harvey and McGuinness, A Guide to British Medieval Seals, figure 1. Museums across the world display early documents, and it is fun to seek out such documents to note the various designs of a cross that people adopted. Two documents from the state archive of Dubrovnik on display in the Dubrovnik maritime museum show a variety of crosses: a contract between Dubrovnik and Termoli from 1203, signed in Termoli on the mutual exemption from port duties and taxes; an agreement on the renewal of friendship between Dubrovnik and Molfetta from 1208, confirming mutual exemption from port duties and taxes as stated in the previous contract from 1148.
13 In a similar fashion, after being notched with the amount received, tally sticks were cracked open lengthways by splitting the stick vertically into two. The tally-writer then inscribed the smooth sides with the details of the person to whom the tally was given and the reason for the payment. Samuel Pepys describes being nominated as Treasurer of the Committee of Tanger (now Tangiers), and indicates that he was ‘put into a condition of striking of Tallys’: 20 March 1665. As a record, they were light, small and virtually impossible to forge. To make space in the rambling buildings making up the Palace of Westminster, the Treasury ordered any tally sticks no longer being used as records to be destroyed. In burning the tally sticks in the furnaces that heated the House of Lords, the heat generated was so great as to cause the House of Lords and House of Commons to burn to the ground (Caroline Shenton, The Day Parliament Burned Down (Oxford University Press 2012), 14–15; 50–53, 240).
14 Clanchy, From Memory to Written Record, 87; for an example of an agreement between Colchester Abbey and the burgesses dating from 1254, see plate VII in the Harvard Law Library MS 87, 2.254.
15 Pierre Chaplais, English Diplomatic Practice in the Middle Ages (Hambledon and London 2003), 40–41.