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The registration of a deed of land in Ontario : a study in special diplomatics Davidson, Steven 1994

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THE REGISTRATION OF A DEED OF LAND IN ONTARIO: A STUDY IN SPECIAL DIPLOMATICS by STEVEN DAVIDSON B.A. (Hon.)/ Queen's University, 1986 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARCHIVAL STUDIES in THE FACULTY OF GRADUATE STUDIES (SCHOOL OF LIBRARY, ARCHIVAL AND INFORMATION STUDIES) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA April 1994 © Steven Davidson, 1994 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of <>C ttfhO L g ^ L l 8 # ^ ^ / f ^ ^ / v / ^ , 4 l*J ?=D 4M+-T,» «. The University of British Columbia <YC~U. X) I ^~C Vancouver, Canada Date 4>^f ,z)ij. DE-6 (2/88) ABSTRACT The principles of diplomatics and the methodology of diplomatic analysis have long been recognized in Europe as important elements of archival education. However, North American archivists have tended to view the diplomatic discipline as archaic and better suited to its traditional use in the study of medieval European documents than to the study of the records of modern North American administrations. Objections to the application of diplomatics to modern documents have focused on two points: first, that diplomatics is of limited practical value beyond the demonstration of authenticity, which is the purpose for which it was first developed; and secondly, that the nature of modern documents is fundamentally different from the nature of medieval documents and diplomatics is therefore not relevant to the study of modern documents. This thesis serves as a pilot study in the application of diplomatics in a modern administrative context, and its purpose is to challenge both these objections. The framework for this thesis was determined by a consideration of the unique characteristics of medieval and modern documents as tools of administrative activity. Given that a single medieval document typically embodies an entire ii transaction, while most modern documents embody only a fragment of a transaction, it was apparent that a diplomatic analysis of a single modern document would be less conclusive than a similar analysis of a single medieval document. For a diplomatic analysis of a single modern document to be meaningful, therefore, the focus of the study must shift from the single document to the entire documentary residue of the transaction in which the document participated. The methodology of the diplomatic analysis remains unchanged, in that it still begins with an analysis of a single document, but the overall focus of enquiry broadens to comprise a sequence of diplomatic analyses of all the documents which participated in the transaction. The thesis focuses on two transactions involving the registration of a deed of land under the Ontario land registry system, one taking place in 1822 and the other in 1873. In order to identify all the documents which participated in these transactions, it was first necessary to examine the legal requirements for registration as revealed in the relevant legislation. After the activities required to be undertaken to complete the registration transaction were identified, these were then arranged into a logical sequence comprising a single coherent procedure. In this manner, a separate procedural outline was constructed for each period in the registry system's early development, and the documents which participated in each respective registration transaction were identified according to iii the procedure governing the transaction at that time. On the basis of the two procedural outlines, separate diplomatic studies were undertaken of the documents participating in each respective transaction. These studies consist of a sequence of diplomatic analyses of all the documents which participated in each transaction. The studies reveal the changing nature of both the documents and the procedure, and this information is expressed in a consistent and standardized manner according to the terminology of diplomatics. The importance of this information for the arrangement, description and appraisal of these documents confirms the relevance of the diplomatic analyses to the study of modern documents. In conclusion, the principles of diplomatics are very much relevant to an understanding of modern documents. The results of the two diplomatic studies confirm that the methodology of diplomatics can successfully be applied to a modern administrative context and can be used by archivists in varying degrees of completeness and formality in order to uncover information critical to the arrangement, description and appraisal of modern documents. In revealing, through an analysis of a document's forms, the nature of the document in terms of its procedural context and the circumstances of its creation, diplomatics has the capacity to help facilitate the management of modern North American archives. iv TABLE OF CONTENTS ABSTRACT ii LIST OF ILLUSTRATIONS vi ACKNOWLEDGEMENTS vii INTRODUCTION 1 Chapter 1: THE ONTARIO LAND REGISTRY SYSTEM 17 Chapter 2: THE REGISTRATION OF A MEMORIAL OF A DEED IN 1822 52 Chapter 3: THE REGISTRATION OF A DEED IN 1873 92 CONCLUSIONS 128 SELECTED BIBLIOGRAPHY 137 V LIST OF ILLUSTRATIONS Page Memorial of a deed, 20 February 1822, recto 55 Memorial of a deed, 20 February 1822, verso 56 Deed of land, 8 February 1822, recto 73 Deed of land, 8 February 1822, verso 74 Entry No. 762 in Frontenac County Register G 85 Deed, 28 October 1872, first leaf, recto 94 Deed, 28 October 1872, second leaf, recto 95 Deed, 28 October 1872, second leaf, verso 96 First attachment to duplicate deed, recto 109 Second attachment to duplicate deed, recto 110 Duplicate deed, first leaf, recto 111 Duplicate deed, second leaf, recto 112 Duplicate deed, second leaf, verso 113 Entry No. 541 in Pittsburgh Township Register D 12 3 vi ACKNOWLEDGEMENTS I would first like to acknowledge the assistance of my supervisor, Professor Luciana Duranti, whose interest in diplomatics sparked my own and whose knowledge of diplomatic principles was always willingly shared. I would also like to express my appreciation to the staff of the Queen's University Archives, who were of great assistance in helping me to identify and locate documents for this study. The staff at Queen's, particularly Anne MacDermaid and Dr. Shirley Spragge, also provided much advice and encouragement during my practicum at Queen's in the summer of 1990 when I was trying to decide upon a thesis topic. Rob MacKinnon and Christina Andrews both played important although very different roles in my life while I was working on this thesis. I thank them for their endurance. Finally, my parents were, as they have always been, a consistent source of support and encouragement. Their assistance, both tangible and intangible, is greatly appreciated. vii 1 INTRODUCTION Diplomatics is a relatively new addition to the standard curriculum of archival studies in Canada. This is due in part to the fact that Luciana Duranti's recent series of articles in Archivaria constitutes the only comprehensive exposition of diplomatic theory published in English to date.1 While diplomatics, in conjunction with palaeography, has long formed the basis for archival education in European countries, North American archivists have tended to view these disciplines as archaic and better suited to the study of medieval European documents than the records of modern North American administrations. Spurred on by Duranti's interpretation of standard Italian, German and French diplomatics texts, North American archivists have now begun to debate both the intrinsic 'Luciana Duranti, "Diplomatics: New Uses for an Old Science (Part I)," Archivaria 28 (Summer 1989): 7-27, hereinafter cited as Duranti, "Diplomatics I;" idem, "Diplomatics: New Uses for an Old Science (Part II)," Archivaria 29 (Winter 1989-90): 4-17, hereinafter cited as Duranti, "Diplomatics II;" idem, "Diplomatics: New Uses for an Old Science (Part III)," Archivaria 30 (Summer 1990): 4-20, hereinafter cited as Duranti, "Diplomatics III;" idem, "Diplomatics: New Uses for an Old Science (Part IV)," Archivaria 31 (Winter 1990-91): 10-25, hereinafter cited as Duranti, "Diplomatics IV;" idem, "Diplomatics: New Uses for an Old science (Part V ) , " Archivaria 32 (Summer 1991): 6-24, hereinafter cited as Duranti, "Diplomatics V;" idem, "Diplomatics: New Uses for an Old Science (Part VI)," Archivaria 33 (Winter 1991-92): 6-24, hereinafter cited as Duranti, "Diplomatics VI." 2 merits of diplomatic principles and the way in which these principles can best be applied to modern North American archives. This thesis constitutes one of the first applications of the methodology of diplomatic analysis in a modern North American administrative context.2 As such, its purpose is to serve as a test of the usability and relevance of diplomatic principles in the modern records environment. Both the historical origins of diplomatics and the unique nature of modern archival documents present significant challenges to the application of diplomatics in a modern context, and the approach undertaken in this thesis constitutes an attempt to overcome these challenges. The results of the diplomatic studies undertaken in this thesis should serve not only to validate the relevance of diplomatic principles in a modern context, but should also suggest ways in which the information gathered through a diplomatic analysis can be usefully applied to North American archives. Diplomatics is the study of the formal characteristics of a document. Given that the document is "the elemental archival 20ther pilot studies produced to date consist of Janet Turner, "Experimenting With New Tools: Special Diplomatics and the Study of Authority in the United Church of Canada," Archivaria 30 (Summer 1990): 91-103, and Janice Simpson, "Broadcast Archives: A Diplomatic Examination" (Master of Archival Studies thesis, University of British Columbia, 1994). 3 unit,"3 it may therefore be said that diplomatics constitutes the most rudimentary of all the archival disciplines. A diplomatic analysis examines "the genesis, forms and transmission" of an archival document,4 and ascertains a document's relationship with its creator and with the activity or transaction which led to its creation. The resultant understanding of the documentary, administrative and procedural context of the document provides the means for determining the document's purpose. Taken altogether, the information extrapolated from a document during the diplomatic analysis allows for a precise articulation of the document's essential nature. The methodology of diplomatic analysis consists of two components: a "definitional component," involving the identification and labelling of each of the constituent parts of a document in a manner that is meaningful and consistent; and a "deductive component," involving the extrapolation of information about the document's origins and procedural context through a functional analysis of the forms of the document identified during the labelling process. The methodology moves from the specific to the general, that is, from the constituent parts of the document to the persons involved in the creation of the document, the act or transaction of which the document is a part, 3Paola Carucci, II Documento Contemporaneo. Diplomatica e Criteri di Edizione (Roma: La Nuova Italia Scientifica, 1987), 11, cited in Duranti, "Diplomatics I," 17. 4Duranti, "Diplomatics I," 17. 4 and the procedure or procedures governing the document's creation and use. When the principles and methodology of diplomatics are applied to specific documents and specific administrative contexts, the activity undertaken is known as "special diplomatics."5 Whereas "general diplomatics" constitutes a body of universal principles, "special diplomatics" is the application of those principles through the methodology of diplomatic analysis to a specific document or set of documents. Studies in special diplomatics are therefore the means by which information about real documents and administrations is deduced and the practical value of diplomatics is realized. They are also the means by which the principles of diplomatics are tested and the relevance and adaptability of these principles to various contexts are challenged. This thesis is a study in special diplomatics that will test the relevance and usability of diplomatic principles for a specific set of modern documents created in a specific administrative context. Given the essentially practical purpose of a special diplomatic study, it is useful to note that the origins of diplomatics are also rooted in practicality. In order to understand the fundamental challenges facing the application of diplomatics to modern documents, it is necessary to examine the 5See Ibid., 9. 5 historical reasons for the development of diplomatics. This will also provide the context for outlining the approach to the application of diplomatics to modern documents undertaken by this thesis. Diplomatics was first developed in Europe during the seventeenth century doctrinal conflicts caused by the Reformation and Counter-Reformation. Its purpose was to resolve questions concerning the authenticity of documents in order to verify rights and privileges conveyed by those documents. This was necessitated by the fact that, during the early Middle Ages, when legal rights and privileges were first required to be substantiated in written rather than exclusively oral form, the creation of forged documents had become widespread.6 In the seventeenth century, when the same ancient rights and privileges embodied in these documents were being disputed, it became necessary to develop a means by which the authenticity or falsity of the documents themselves could be proved. The science of diplomatics was thus developed to achieve this essentially pragmatic end. The first use of the term "diplomatic" to mean the systematic study of documents, or diplomas, was by the 6Christopher N.L. Brooke, "Approaches to Medieval Forgery," Journal of the Society of Archivists 3 (1965-69): 377-78. Benedictine scholar and monk, Jean Mabillon.7 His six-part De Re Diplomatica, published in Paris in 1681, provided a set of rules and criteria for the critical analysis of documents, thus laying the foundations for what are now the separate sciences of palaeography and diplomatics.8 On a practical level, however, Mabillon's treatise was first and foremost a defense on behalf of the Benedictine monks of Saint-Denis against a warning issued in 1675 by the Bollandist Father Daniel van Papenbroeck concerning the suspect authenticity of early monastic charters. As most of the charters to which van Papenbroeck referred were in the custody of the Benedictines, Mabillon's treatise was an attempt to refute van Papenbroeck's charges of forgery. The methodology developed by Mabillon and still valid today consisted of examining a large sample of documents and then categorizing and analyzing them in terms of their various common characteristics. These characteristics included the medium, ink, 7The history of diplomatics has been drawn from Leonard E. Boyle, "Diplomatics," in Medieval Studies: An Introduction, 2nd ed., edited by James M. Powell (Syracuse, N.Y.: Syracuse University Press, 1992); Don C. Skemer, "Diplomatics and Archives, American Archivist 52 (Summer 1989): 376-382; Duranti, "Diplomatics I," 12-17; and Encyclopedia Britannica, 11th Edition (Cambridge: Cambridge University Press, 1910), s.v. "Diplomatic," by Sir Edward Maunde Thompson. 8Mabillon devoted one volume of his treatise to the systematic study of types of scripts. However, the term "palaeography" was not used until 1708, when another Benedictine monk, Bernado de Montfaucon, published his Palaeoqraphia graeca, sive de ortu et progressu leterarum. Palaeography only emerged as a separate discipline after the establishment of the Ecole des Chartes in Paris in 1821. 7 script, punctuation, abbreviations, formulas, subscriptions, seals, special signs, chancery notes and other indications of the documents' internal structures and order. Through an examination of these, Mabillon was able to detect patterns from which he could draw conclusions about the circumstances of the documents' creation. The generalizations which Mabillon was able to make about specific categories of documents could then be used as a basis for analyzing and authenticating other documents within these same categories. Mabillon's defence of the authenticity of the Benedictine charters was so thorough that, after a long pause, van Papenbroeck wrote a letter of recantation in which he said, "Count me as your friend, I beg of you. I am not a learned man, but I desire to be taught."9 The use of diplomatics to determine the authenticity of documents has by no means been abandoned by modern European archivists and historians. In fact, the opposite is true. Particularly in England, diplomatics became, and continues to be, a discipline employed primarily by medievalists to investigate the authenticity and circumstances of creation of single medieval documents. The subjects of many of these investigations have been the documents created by the large number of English monastic communities which forged documents in order to support 9Quoted in Brooke, "Approaches to Medieval Forgery," 378. 8 their claims of exemption from episcopal control.10 While determining the authenticity of these documents no longer has legal implications as at the time of Mabillon, the historical and archival questions posed by the issue of medieval forgery, which can frequently be profound and complex, have resulted in the production of numerous studies in medieval special diplomatics.11 The fact that North American archivists virtually never have cause to demonstrate the historical authenticity of the documents in their custody and control constitutes one of the two most significant objections to the application of diplomatics to modern archival documents presented by the North American archival community. In order for the principles of diplomatics to be accepted as not only universally valid but also universally relevant, it must therefore be demonstrated that the information deduced during a diplomatic analysis has an inherent value for all archival functions, not only for the determination of 10For an indication of the extent to which English diplomatists have been preoccupied with the issue of medieval forgery, see Christopher N.L. Brooke, "Approaches to Medieval Forgery," 377-86, and idem, "The Teaching of Diplomatic," Journal of the Society of Archivists 4 (1970), 1-9. nSee, for example, the following studies published over the years in the English Journal of the Society of Archivists: Pierre Chaplais, "The Origin and Authenticity of the Royal Anglo-Saxon Diploma," JSA 3 (1965-69): 48-61; idem, "Some Early Anglo-Saxon Diplomas on Single Sheets: Originals or Copies?" JSA 3 (1965-69): 315-336; Christopher N. L. Brooke, "Approaches to Medieval Forgery," JSA 3 (1965-69): 377-386; idem, G. Keir, and S. Reynolds, "Henry I's Charter for the City of London," JSA 4 (1970-73): 558-78; Lesley Abrams, "'Lucid Intervals': A Rediscovered Anglo-Saxon Royal Diploma from Glastonbury Abbey," JSA 10 (April 1989): 43-56. 9 authenticity. In other words, empirical evidence is needed to show that the diplomatic analysis of modern documents has a practical use for archivists. Without this evidence, diplomatics will remain in North America little more than a methodology of analysis based on historically sound but now largely irrelevant principles. The second significant objection to the application of diplomatics to modern North American documents concerns the fundamental difference between modern documents and medieval documents. As Gerard and Christiane Naud have stated, Alors que la charte medievale concentre 1'information sur l'histoire dont elle est l'outil et le produit, respresentant une sorte de noeud d'information, le papier administratif contemporain ne livre lui, que l'un des elements d'une information atomisee. La piece d'un dossier n'a d'interet que si elle est a sa place dans le dossier, qui est, lui, l'unite de base, l'outil de base, du travail administratif.n Duranti emphasizes the importance of the Nauds' statement in highlighting the essential difference between the genesis of medieval documents and the genesis of modern documents: Each medieval document contained the whole transaction generating it, and its creation, as the apex of the transaction, was either sequential to it ... or parallel .... On the contrary, each modern document incorporates only one phase of the transaction, or even less, and its creation, as a means of carrying out the transaction, is integrated in each of the phases through which the 12Gerard and Christiane Naud, "L'Analyse des archives administratives contemporaines," Gazette des archives 115 (4e trimestre 1981): 218. Also quoted in translation in Duranti, "Diplomatics IV," 14. 10 transaction develops ....13 While the complete administrative context of modern documents can therefore only be known with reference to the other documents participating in the same transaction, a single medieval document embodying an entire administrative transaction can be understood on its own. Given that a diplomatic analysis is conducted at the document level rather than at the dossier level,14 it is therefore evident that a diplomatic analysis of a single modern document embodying only a fragment of an administrative transaction will be far less conclusive than a diplomatic analysis of a single medieval document embodying an entire transaction. This presents an important but not insurmountable challenge to the application of diplomatics in a modern context. Central to the challenge is the fact that document level analysis and control of modern documents is in most cases neither feasible nor desirable. As Gerard and Christiane Naud pointed out, the single document as the instrument of administrative activity has been replaced by the dossier, and it is the dossier which is analogous to the medieval document of traditional diplomatic enquiry, not the single modern document. In order for a diplomatic analysis of a single modern document to be meaningful, therefore, the 13Duranti, "Diplomatics IV," 14. 14A dossier can be described as a conceptual "file" of all the documents related to a single activity or transaction created or received by a single administration or individual. 11 scope of the analysis must be broadened to consider not only the document's place within the dossier, but also the relationship of the document to all the other documents within the dossier. In essence, the focus of the enquiry is shifted from the single document to the complete documentary residue of the activity or transaction out of which the document was created. This is not to say that the methodology of the diplomatic analysis changes, as it still begins with an examination of a single document. But it does mean that the overall focus of enquiry broadens to comprise a sequence of analyses of multiple documents, all of which participated in the same activity or transaction. Given that the documentary residue of a modern activity or transaction is often physically scattered among dossiers held by several administrations which participated in the same activity or transaction, the question arises of how these documents are to be identified. The answer lies in the identification of procedures. As Peter Sigmond states, "almost all activities of an administration can be reduced to procedures, set out in instructions and regulations."15 By using whatever procedural guidelines exist, an archivist can determine what the requirements were for carrying out a particular activity or transaction, and thus also what documents should have been produced in fulfilment of those requirements. As Duranti states 15J. Peter Sigmond, "Form, Function and Archival Value," Archivaria 33 (Winter 1991-92): 144. 12 in her discussion of administrative procedures, "the focus is always the transaction and its procedure, and the starting point is constituted by the documentary forms embodying them."16 A diplomatic analysis of some or all of the documents generated during the course of the transaction will therefore either confirm that the requirements of the procedure were in fact met, or will reveal discrepancies which may be of importance from both an archival and an historical perspective. Taken altogether, the sequence of diplomatic analyses will reveal the essential nature of the documents considered, of the activity or transaction for which they were created, and of the procedure governing that activity or transaction. This information can then be applied to all the functions involved in the archival management of the documents, including particularly arrangement, description and appraisal. As a test of the application of the methodology of diplomatic analysis to modern records, this thesis focuses its enquiry therefore not on a single document, but on a single transaction governed by an established procedure. Specifically, the thesis consists of a diplomatic analysis of all the documents generated within the procedure governing the registration of land in Ontario in the nineteenth century. While the focus of enquiry is a transaction involving the registration of land, the methodology employed is consistent with the methodology of 16Duranti, "Diplomatics IV," 18. 13 traditional diplomatic analysis. The transaction provides the overall framework for the study, but the documents themselves remain the subject of the formal analysis. The Ontario land registry system was chosen as the focus of enquiry for this thesis for two reasons. First, the Ontario land registry system is one of the oldest administrative systems in Canada. Established in 1795 in what was then the Province of Upper Canada, its procedures are based on administrative practices of the late eighteenth and early nineteenth centuries which have been gradually adapted and modernized over time. The long period of evolution and modification of the system, which continues to this day, allows for two separate sets of analyses to be undertaken, one for each period in the system's early development. This thesis examines first the registration of a deed of land in 1822, and secondly the registration of a deed of land in 1873. The documents generated during each of these transactions are representative of the requirements of the registry system as it existed at each time, and the comparison of the results of the two sets of analyses enhances the understanding of the changing nature of the documents and of the registry system itself. Secondly, as the registration of ownership of land is an important public policy issue, the legal requirements for registration are clearly outlined in provincial legislation. 14 While the legislation does not provide a clear outline of the procedures governing the registration transaction, it does provide information about the documents required and the activities involved to the extent that a conceptual set of registration procedures can be determined. Moreover, as one of the objectives of a diplomatic analysis is a determination of the procedural context and of the purpose within that context of each document, the results of each set of diplomatic analyses can usefully be compared with the legislation and a determination can be made of the extent to which practice conformed to statutory prescription. The thesis is divided into three chapters followed by a conclusion. The first chapter discusses the unique character of the Ontario land registry system and compares it with a conventional registry system. It also provides an outline of the origins and historical development of the Ontario land registry system, and presents conceptual sets of procedures as deduced from the legislation governing the registry system. The second and third chapters contain the two sets of formal diplomatic analyses undertaken in this study, the second chapter consisting of an analysis of the documents involved in the registration of a deed in 1822, and the third chapter consisting of an analysis of the documents involved in the registration of a deed in 1873. The thesis is concluded by an assessment of the results of the two sets of analyses and a discussion of whether the broadening 15 of the focus of enquiry to the level of transaction, as undertaken here, constitutes a viable approach to the application of diplomatics to modern documents. Before proceeding to an examination of the Ontario land registry system and of the documents generated under it, a brief statement about sources is in order. The literature on diplomatics in English is exceedingly limited. The English have published a great number of studies in special diplomatics, yet there is no standard English language text of general diplomatics. For the principles of general diplomatics, therefore, this thesis relies primarily on the six articles published in Archivaria by Duranti, supplemented by a limited number of French texts. While brief definitions of the terms and principles of diplomatics are provided when necessary, the reader is directed throughout the text to more complete expositions of these terms and principles in Duranti. For the legal requirements of the land registry system, this thesis relies first on the relevant provincial legislation, and secondly on standard Canadian legal texts concerning the law of real property. The latter were the principal sources for the description of the nature of the Ontario land registry system in comparison with a conventional registry system. A combination of contemporary commentaries and current legal and historical works was also used in tracing the history and development of the registry system. 16 The two deeds of land which form the basis for the two sets of diplomatic analyses undertaken in this thesis were registered in the Frontenac Country Registry Office in Kingston, Ontario. They were chosen on the basis of the availability of additional unregistered documents relating to the same registration transactions. These latter documents were located in two separate fonds in the custody of the Queen's University Archives. Together, the two sets of documents examined in this thesis are representative of the documentation required for the registration of a deed of land in nineteenth century Ontario. 17 CHAPTER 1 THE ONTARIO LAND REGISTRY SYSTEM A diplomatic analysis of the documents involved in the registration of a deed of land under the Ontario land registry system requires a previous examination of the nature of that system, its historical origins, and its development as revealed in complementary sources. This examination serves two purposes. First, it provides an historical and administrative context for the legal requirements for registration as defined in the relevant legislation. Secondly, it allows for the construction of a conceptual set of registration procedures to be used both to guide and to evaluate the results of the two sets of diplomatic analyses which follow. The Ontario land registry system was established by statute in 1795 and is not a registry system in the conventional sense of the term.1 Under the Ontario registry system, entry in the register is not a requirement for the completion of a transaction involving the transfer of ownership of real property. In other words, a transfer is complete in law upon the execution of the instrument embodying the transfer, which is typically a deed. Registration of the deed is therefore not necessary to make the Statutes of Upper Canada. 1795, 35 Geo. 3, c. 5. 18 transfer effective. This differs substantially from a conventional registry system, where a transaction is complete only upon the entry in the register of the document embodying the transaction. This latter type of registry system corresponds to the Torrens system of land registration, which was introduced in parts of Ontario in the 1880s and is called in Ontario the land titles system.2 As DiCastri explains, under the Torrens system title passes not on the execution of the conveyance [deed] but on its registration. Registration is everything.3 While registration under the Ontario land titles system therefore represents the embodiment of the transfer transaction, under the Ontario land registry system it merely provides evidence of that transaction. This distinction has a direct bearing on the legal value of both the documents which have been registered and the registers themselves, and also has important implications for the diplomatic analysis of the registered documents and the related register entries. The basis for the distinction between the Ontario land registry system and the land titles system lies in the fact that the former provides only for the registration of deeds, while the 2Statutes of Ontario. 1885, 48 Vict., c. 22; 1887, 50 Vict., c. 15; 1887, 50 Vict., c. 16. 3Victor DiCastri, The Registration of Title to Land, vol. 1 (Toronto: Carswell, 1987), p. 1-7. The term "conveyance" is used in law to denote both the act of transfer and the instrument or document embodying the transfer. Henry Campbell Black, Black's Law Dictionary. Abridged 5th ed. (St. Paul, Minn.: West Publishing Co., 1983), 176. 19 latter provides also for the registration of titles. A title can be defined as "the right to or ownership in land, ... [or] the evidence of such ownership,"4 while a deed is simply "the written instrument, signed, and delivered, by which one person conveys land ... to another."5 Under the land titles system, not only is the entry of the deed in the register necessary in order for the transaction to be complete and effective, but the registrar is also required to issue to the purchaser a certificate of ownership with respect to the land transferred under the deed. This certificate is an affirmation by the state that the entry in the register is a true representation of the condition of title to the parcel of land under consideration. The register is thus a register of the transaction, in which the title is stated explicitly. By contrast, the land registry system allows only for the deposit of deeds in the registry office, their entry in the register, and their certification by the registrar to the effect that this has been done. There is no provision for an "authoritative declaration of title" by the state. As DiCastri explains, Title by deed cannot be demonstrated as an ascertained fact, 4Black, Black's Law Dictionary, 772. 5Ibid., 215. Formerly, it was necessary for an instrument to be signed, sealed, and delivered before it could be called a deed. But the sealing has become increasingly anachronistic, and is in fact omitted from this definition. 20 but presents a fact deducible from documentary evidence. There is no affirmation of title by the state.6 The registered deeds, or memorials of deeds as the case may be, are the documentary evidence of titles to land, but are not themselves the titles. Title can be ascertained only by a critical examination of all the documents relating to whatever parcel of land is under consideration. Moreover, as Simpson shows, the registration of a deed does not guarantee that the deed is free of defects, and the registrar assumes no responsibility as to its effects. A deed does not in itself prove title; it is merely a record of an isolated transaction. If properly drawn, it shows that a particular transaction took place, but it does not prove that the parties were legally entitled to carry out the transaction and consequently it does not prove the transaction valid.7 The registration of a deed in the Ontario land registry system thus in no way guarantees that the rights to land expressed in the deed correspond to the condition of title to the parcel under consideration. Registration serves, rather, to gather these documents together in a central location, giving notice to the world of the transactions contained in the documents but providing no judgement as to the particular rights to land expressed in them. In the words of one observer, the registry serves simply as a "storehouse" for depositing and making 6 DiCas t r i , p . 1-11. 7S. Rowton Simpson, Land Law and R e g i s t r a t i o n (Cambridge: Cambridge U n i v e r s i t y P r e s s , 1976), 15. 21 available all documents affecting land.8 As the registration of deeds forms only part of the much broader law governing the transfer of land in Ontario, it is important to explore briefly the role of registration within that broader context. Under the original 1795 Registry Act, the registration of a deed was optional. The Act merely stated that "a memorial of all deeds and conveyances which shall be made and executed ... may at the election of the party or parties concerned be registered in such manner as is hereinafter directed."9 Failure to register did not invalidate a deed or a conveyance, and indeed the validity of unregistered conveyances was subsequently confirmed by the 1834 Real Property Amendment Act.10 Moreover, the Act did not provide for the registration of the deed itself, but rather for the registration of a memorial of the deed. The memorial was essentially an abstract of various particulars contained in the deed, and its registration allowed for the original instrument to be retained by the purchaser of the property. These provisions thus considerably mitigated the initial impact of the registry system on the practice of conveyancing in the province. 8R.C.B. Risk, "The Records of Title to Land: A Plea for Reform," University of Toronto Law Journal 21 (1971): 466. 9Statutes of Upper Canada. 1795, 35 Geo. 3, c. 5, s. 2. '"Statutes of Upper Canada. 1834, 4 Will. 4, c. 1, s. 47. 22 The primary incentive for registration was the protection provided under the 1795 Act to registered land owners against subsequent registered claims against their land. However, two conditions had to be met before the protection of the Act could be invoked. First, the original grant from the Crown had to have been confirmed by letters patent issued by the Crown. Secondly, a deed relating to the parcel of land in question had to have been previously registered. The latter requirement was based on the original purpose of the Act which, as Armour explains, was to settle priorities, not between registered conveyances themselves, nor between unregistered conveyances themselves, but between registered and unregistered conveyances of the same land. ... The act provided a security against purchasers being defeated by prior secret conveyances, by offering to all persons the opportunity of registering their deeds, under peril of their being considered fraudulent, if unregistered, as against subsequent registered conveyances.n It was not until 1851 that the prior registration requirement was abolished and the same protection was extended to all registered deeds, regardless of whether a deed pertaining to the same land had already been registered.12 In this sense, the registration of deeds was finally made compulsory. The 1851 Registry Law Amendment Act also settled disputes between registered deeds by stating that they should "be deemed and taken as good and effectual both in Law and in Equity according to the priority of nEdward Douglas Armour, A Treatise on the Investigation of Titles to Real Estate in Ontario, 4th ed. (Toronto: Canada Law Books Co., 1925), 58. 12Statutes of the Province of Canada, 1850, 13 & 14 Vict., c. 63, s. 3. 23 the time of registering such memorial or certificate,"13 and between unregistered deeds by assigning priority "according to the priority of time of execution."14 These priority provisions have remained substantially unaltered to the present.15 The registry system also exercises a considerable influence on the practice of conveyancing itself. Unlike the land titles system, where the registration of a title serves to cure any defects which may be embodied in the deed,16 the validity of a conveyance under the registry system is completely dependent upon the validity of all previous conveyances affecting the parcel of land in question. As DiCastri explains, a purchaser can acquire only such title as his vendor possesses and the title of each successive owner is dependent upon that of his predecessor. Each dealing represents a link in a chain of title which is only as strong as its weakest link.17 In the absence of a clear statement of title, then, it is necessary to search the register every time and examine all the relevant documents in order to establish a title before dealing with any land subject to it. This is the essential weakness of 13Ibid. 14Ibid., s. 4. 15For a more detailed history of the development of priority provisions under the Ontario land registry system, see Marcia Neave, "Conveyancing Under the Ontario Registry Act: An Analysis of the Priority Provisions and Some Suggestions for Reform," Canadian Bar Review 55 (1977): 507-10. 16DiCastri, p. 1-7. 17Ibid. 24 the registry system for, regardless of how thoroughly the title has been searched in the past, it must be done just as thoroughly again for every transaction affecting the same parcel of land. Initially, it was common practice to trace titles back to the original Crown grant in order to establish a "good root of title." But, as the province developed, this process became extremely cumbersome. Accordingly, the search period for a good root of title was eventually limited to forty years by the 1929 Investigation of Titles Act.18 This continues in effect today, and the substance of the Investigation of Titles Act has been incorporated as Part III of the current 1990 Registry Act.19 However, a system of conveyancing which is dependent solely on documentary evidence for the affirmation of titles can be complex and slow, and most importantly, it provides no guarantee of the true state of title. The registry system is thus not without problems. Indeed, the legal literature contains considerable debate about the relative merits of a system based on the registration of deeds versus one based on the registration of titles. By virtually all accounts, the simplicity and lack of uncertainty characteristic of the title registry is becoming increasingly preferred. However, for the purpose of this thesis, the important point to 18Statutes of Ontario. 1929, 19 Geo. 5, c. 41. 19Revised Statutes of Ontario, 1990, c. R.20. 25 note about the Ontario land registry system is that it places an extraordinary emphasis on the evidential value of documents. Under the registry system, a registered deed has an enduring legal value which is as important to the validity of all subsequent transactions affecting the land to which it relates as it is dependent upon the validity of all the transactions which preceded it. This fact has significant implications in terms of a diplomatic analysis of the documents generated within the registration procedure. Given the unique nature of the Ontario land registry system, it is useful to examine the origins of the system and the reasons for its introduction in Upper Canada. This will also make it possible to trace the system's procedural development over time, which in turn will determine the focus of the following diplomatic analyses. The Ontario land registry system is the oldest system of land registration in Canada. As mentioned above, it was established in 1795 by an Act of the first Parliament of Upper Canada under the leadership of the province's first Lieutenant-Governor, John Graves Simcoe. The Act provided for the establishment of a central registry office "in each and every county and riding" of the province, in which documents, or rather memorials of documents, could be deposited and registered "for 26 the better securing and more perfect knowledge of the same."20 Thus the two objectives of the system were clearly stated: to provide secure physical storage for documents related to land, and to provide notice to the world of the transactions contained in those documents. The early priority given to legislation affecting the registration of deeds indicates the importance attached to regulating land tenure within the context of the government's overall land policy. For Simcoe, the land policy was the cornerstone of all plans for the development of the province, as he saw in it the principal means of providing the incentives necessary to promote settlement and investment.21 Indeed, Simcoe's speech from the throne to the Fourth Session of the First Parliament urged measures which would ensure security to possessors of capital who might be induced to invest it in land in the province.22 It is certain that this was the reason for the introduction of the Registry Act, for in his prorogation speech on 10 August 1795, Simcoe thanked the Parliament for its attention to his recommendation "for substantiating the security 20Statutes of Upper Canada. 1795, 35 Geo. 3, c. 5, s. 1. 21See Gerald M. Craig, Upper Canada: The Formative Years 1784-1841 (Toronto: McClelland and Stewart, 1963), 20-41. 22William Renwick Riddel 1, The Life of John Graves Simcoe. First Lieutenant-Governor of the Province of Upper Canada. 1792-96 (Toronto: McClelland & Stewart Ltd., 1926), 271. 27 of landed property by [passing] the 'Register Bill.'"23 The establishment of a general land registration system was thus intended to help convey the message that Upper Canada was a stable place to invest, and that not only was land freely available to those wishing to invest, but the orderliness and regularity of the subsequent transfer of that land was to some degree protected by the state through the establishment of a land registry system. Aside from this general policy objective, there was a more immediate reason for the establishment of a land registry system in Upper Canada. Since 1784, loyalist refugees from the United States had been permitted to settle on land granted by the Crown in various areas of what was to become southern Ontario. These land allotments had been granted on the basis of location tickets with the expectation that, once certain conditions of settlement had been met, formal title to the land would be conferred by letters patent issued by the Crown. The process for having land patented was very complex, however, and there was often a considerable interval between the issuing of the location ticket and the granting of the patent.24 In the meantime, the original holders of the location tickets might have died, moved on, or otherwise found it necessary to dispose of their property before 23Ibid. ^See R.W. Widdis, "Tracing Property Ownership in Nineteenth-century Ontario: A Guide to the Archival Sources," Canadian Papers in Rural History 2 (1980): 84. 28 it had been patented. Simcoe described the situation in a letter to the British Secretary of State in August 1795, shortly after the passing of the Registry Act: The great delay that has hitherto been in the issuing of the Grants of the Crown lands and taking up the Certificates has occasioned many and encreasing [sic] difficulties, scarcely a single Grant has as yet been ratified, and there seems to have been a disposition in many Persons in the Province to decry the propriety or the necessity of the Exchange of Certificates for Grants; to remedy this evil, as well as to authenticate and confirm the Titles and property of Individuals, It was thought expedient particularly to recommend a general Register Bill which has accordingly taken place.25 The regulation and security of real property was thus seen by Simcoe to be of paramount importance not only to his overall plans for the development of the province, but also to the immediate cause of orderly settlement. The establishment of a land registry system in Upper Canada in 1795 was in itself a significant feat, but it was all the more remarkable considering that there was at the time no comparable system of general land registration in England. Under the Upper Canada Property and Civil Rights Act of 1792,26 the laws of England relating to real property had been introduced into the new province of Upper Canada. Yet, at that time, the sole English enactment relating to the general registration of deeds 25Simcoe to the Duke of Portland, 22 Aug. 1795, in The Correspondence of Lieutenant-Governor John Graves Simcoe, Vol. IV, 1795-1796. ed. E.A. Cruikshank (Toronto: Ontario Historical Society, 1926), 76. 26Statutes of Upper Canada. 1792, 32 Geo. 3, c. 1. 29 was the Statute of Enrolments, passed in 1535 during the reign of Henry VIII.27 The Statute of Enrolments stated that no "estate of inheritance or freehold" should be conveyed by bargain and sale unless the sale was made "by writing indented sealed," and that such indentures should be enroled within six months "in one of the King's courts of record at Westminster," or before the justices and clerks of the peace in the county in which the lands were situated.28 The effectiveness of this act had been considerably undermined, however, by its failure to provide for estates which were less than freehold. Under the various loopholes contained in the Statute of Uses, which was passed earlier the same year,29 a leasehold could effectively over time 27Laws, Statutes, etc., Statute of Enrolments, 1535. 27 Hen. 8, c. 16. 28Ibid., s. 1. The term "indented" refers to the process by which a deed was written out twice on a single sheet of parchment and then "severed by cutting with an irregular or * indented' edge, so that the genuineness of the two halves could be shown by fitting them together," thus making an indenture. Simpson, 63. The process of sealing in order to give authenticity to a document was used in England from at least the reign of Edward the Confessor, but became widely used in the middle ages—a time when most landowners were illiterate but every freeman and even the more substantial villeins had their own particular seals. The seal was originally of wax, stamped with the person's own insignia, but this was eventually replaced by a simple adhesive wafer. The person executing the deed placed his forefinger on the seal and declared "I deliver this as my act and deed." As mentioned above, sealing is no longer a requirement for a deed, and this practice has fallen into disuse. See Simpson, 62-3, and Hubert Hall, Studies in English Official Historical Documents (1908; reprint, New York: Burt Franklin, 1969), 168. 29Laws, Statutes, etc., Statute of Uses. 1535. 27 Hen. 8, c. 10. 30 be converted to a freehold without public ceremony.30 In this way, registration of deeds was to a large extent avoided. Moreover, it was not until the Statute of Frauds was passed in 167731 that it was made a requirement for all land transfers to be embodied in a written document in order for the transfer to be effective.32 Thereafter, at least the existence of land documents was ensured, if not their registration. In the absence of a general register, it became customary in 30Under the feudal system, it was the nature of the services rendered in exchange for land which determined tenure. Freehold land was initially held in exchange for services "considered to be of a free and honourable nature, like military duty," although the term has come to be virtually synonymous with absolute ownership. Simpson, 28. A leasehold was and continues to be derived either directly or indirectly from a freehold, and is a means of tenure by which land is held according to a contract, called a lease, for a period shorter in duration than the interest of the person granting the lease, and in exchange for a consideration, usually a rent. Simpson, xliii, 31. Under the Statute of Uses. a leaseholder, called a lessee, was deemed to be in lawful possession of his land, and could thus acquire the freehold from the lessor, or landlord, by means of a simple deed, called a release. Because the lessee was already in possession, there was no need for livery of seisin, which was the public ceremony consisting of the symbolic delivery of possession before witnesses on the land itself (eg. the vendor physically handing to the purchaser a branch or piece of turf from the land) , and thus "the lessee became the owner in fee simple without any public ceremony." This method of "lease and release" became the common method of transferring freehold lands, and was not abolished until the Real Property Act of 1845 made the deed of grant the usual form of conveyance. See Simpson, 37-8, and Sir Ernest Dowson, V.L.O. Sheppard, Land Registration, 2nd ed., Colonial Research Publications, no. 13 (London: Her Majesty's Stationery Office, 1952), 7-8. 31Laws, Statutes, etc., Statute of Frauds. 1677. 29 Car. 2, c. 3, s. 1. 32W.S. Holdsworth, The History of English Law, vol. 7 (London: Methuen, 1966), 354-5. See below, page 80, note 30, for the diplomatic significance of the embodiment of a transfer in writing. 31 England for the owner of land to retain custody of the deed himself, and for each new owner to be given the deeds of his predecessors as proof of his title. Thus developed a complex system of private conveyancing, firmly rooted in the traditions of English common law. This is not to suggest that there was a complete lack of interest in establishing a general registry system. The Statute of Enrolments itself had been the result of a compromise, for in 1529 Henry VIII had supported a bill which would have required that as soon as a deed of conveyance was sealed and livery of seisin made,33 the deed should be registered "in the schere town in which the land lay."34 The Bill had been obstructed by the House of Commons, however, as the large landowners feared a loss in their power to make secure family settlements and secret conveyances. The lawyers, who were also influential in the Commons, also obstructed the Bill for fear of the loss of what was for them a very profitable business.35 Clearly, then, while the private transfer and storage of deeds did have the advantage of keeping all the deeds together in one place, it also provided ample opportunity for fraud.36 The piecemeal attempts undertaken to alleviate this 33See above, note 30, for a definition of livery of seisin. ^Quoted in Holdsworth, vol. 4, 451. The Bill is quoted in its entirety as Appendix III of the same volume. 35Ibid., 453. 36J. J. Hopper, A Sketch of the Torrens System (1917) , quoted in DiCastri, p. 1-11. 32 situation had virtually no impact on the subsequent development of general land registration in England. However, it is generally accepted that the isolated local registry systems which were established in three English counties served as the model for the registry system which was established in Upper Canada. In 1663, the first of these five local registries was established for a district in the fens called the Bedford Level.37 Later, in the early eighteenth century, registries were also established for the counties of Yorkshire and Middlesex.38 Intended to serve as central deed depository for each respective district, these registry systems bear a close resemblance to the system introduced in Upper Canada in 1795. As Marcia Neave points out, "the 1795 [Upper Canadian] Act closely resembled the English (and particularly the Middlesex) legislation in its terms."39 37The Bedford Level Registry was established by 15 Car. 2 (1663), c. 17, s. 8. It was controlled by the Bedford Level Corporation and served an area comprised of some 703 square miles. This included the whole of the Isle of Ely, with extensive areas in Huntingdonshire, Norfolk, and Suffolk, and smaller districts in Northamptonshire and south-east Lincolnshire. See W.E. Tate, "The Five English District Statutory Registries of Deeds," Bulletin of the Institute of Historical Research 20 (1947): 97-8. For an overview of its history, see G.H.H. Glasgow, "The Deed Registries of England and Wales," Solicitor Quarterly 4 (1965): 22-26. 38The system was established in the West Riding of Yorkshire by 2 & 3 Anne (1703), c. 4, amended by 5 & 6 Anne (1706), c. 18; in the East Riding of Yorkshire and Kingston-upon-Hull by 6 Anne (1707), c. 35; in Middlesex by 7 Anne (1708), c. 20; and in the North Riding of Yorkshire by 8 Geo. 2 (1735) , c. 6. For an overview of the history of these registries, see Francis Sheppard and Victor Belcher, "The Deeds Registries of Yorkshire and Middlesex," Journal of the Society of Archivists 6 (April 1980): 274-86. Neave, 506. 33 Interestingly, a central land registration system had been established in New England in the mid-seventeenth century, and this would have been known to many of the loyalist settlers now populating the new province.40 However, it is clear from the content of the English and Canadian statutes that the colonial legislators looked to England for their legislative model, not the United States. In terms of its content, then, the 1795 Registry Act called for the establishment "in every county and riding of this Province ... [of] an office for the enregistering of memorials of all deeds and instruments by which lands within the same shall or may be transferred or disposed of .... "41 The Governor or Lieutenant-Governor was to name the place where the registry office should be kept, and "to nominate and appoint a person of sufficient integrity and ability to each and every office [to be the registrar]."42 This was similar to the provisions of the 40For a brief description of the New England system, see Neave, 506. For the history of registry legislation in the U.S., Neave cites J.H. Beale, "The Origin of the System of Recording Deeds in America," The Green Bag 19 (1907): 335; George L. Haskins, "Beginnings of the Recording System in Massachusetts," Boston University Law Review (1941): 281; and P.H. Marshall, "An Historical Sketch of the American Recording Acts," Cleveland and Marshall Law Review (1955): 56. 41Statutes of Upper Canada, 1795, 35 Geo. 3, c. 5, s. 1. 42The Act referred to the office of "register," rather than "registrar," which Riddell states is a comparatively recent term. Riddell, 270, note 8. For the sake of clarity, the term registrar will be used in this thesis to refer to the officer in charge of a registry office, and the term register will be used only to refer to the book in which deeds and memorials of deeds were transcribed. 34 Middlesex Registry Act, under which the registrar was appointed by officials acting under the authority of the Lord Chancellor,43 but it differed from the Yorkshire registries, where the position of registrar was an elected one. The principal duty of the registrar was to "faithfully cause to be enregistered a memorial of all deeds and other instruments by which lands may be transferred or alienated, that shall or may be presented to him in manner hereinafter mentioned."44 The registrar was not instructed to affirm the effectiveness of the deeds presented to him, but merely to provide certification that a memorial of the same had been registered. It should be emphasized again that the Act called for the registration of memorials of deeds, rather than of the deeds themselves. This was consistent with the local registry systems of Yorkshire and Middlesex,45 and suggests the origins of the In Ontario today, the position of registrar continues to be an appointment of the Lieutenant-Governor in Council. Revised Statutes of Ontario, 1990, c. R.20, s. 9(1). 43The registrar was appointed by the Clerk of Inrolments in Chancery, the Clerk of Inrolments in the Court of the Queen's Bench, the Clerk of the Warrants in the Common Pleas, and the Remembrancer or his deputy in the Court of Exchequer, under the general control of the Lord Chancellor. 7 Anne (1708), c. 20, s. 2. "Ibid. 45The registries of Middlesex and the East and West Yorkshire Ridings required the registration of memorials, while the registry of the North Riding, established thirty years later, allowed either a memorial or a full-length copy of the instrument to be registered. Regardless of statutory requirements, however, Tate maintains that in practice all the English registries contain many 35 deed registries in the English practice of private conveyancing. A memorial is defined by Simpson as "an abstract of the particulars of a deed for the purpose of registration."46 According to the Act, every memorial was to contain the date of the deed, the names and additions of the interested parties and of all the witnesses, their addresses, and a description of the land under consideration "in such manner as the same are expressed or mentioned in such deed, ... or to the same effect."47 Significantly, a memorial did not require a disclosure of price. Beyond the secrecy inherent in the private conveyancing tradition, Armour suggests that the registration of memorials rather than of the instruments themselves was consistent with a policy of the law, which was "to avoid disclosures to the public as to titles, but to give to intending purchasers or mortgagees such information as to the title as could be given consistently with this policy."48 Moreover, this provision for secrecy seems to have had an added basis in a traditional stigma against borrowing money. As J.J. Hopper explains, If he wished to borrow money, the owner took his deeds and deposited them with the money lender. This method had the advantage of simplicity and secrecy. In those days borrowing money on the strength of the homestead was not considered a commercial transaction, but rather enrolments both of memorials and deeds at full length. Tate, 99. 46Simpson, xliii. 47Statutes of Upper Canada. 1795, 35 Geo. 3, c. 5, s. 5. 48Armour, 60. 36 a thing to be concealed if possible. A man went to the money lender with his deeds with much the same feeling that a householder today might go into the side door of a pawn shop to raise money on his watch or on the family silver.49 The object of the registry was thus not to expose titles to public scrutiny, but simply to provide notice of transactions contained in registered deeds, and the registration of memorials provided an adequate means of achieving this objective. Along this same line, there was no provision in the Act for the memorials or the other books of the registry to be open to inspection by the public. The Act simply required the registrar to make searches "as often as required ... concerning all memorials that are registered," and to "give certificates concerning the same under his hand, if required by any person."50 It did not specifically provide that the books of the registry or the memorials should be shown to anyone who wished to make a search of them.51 Once again, this was consistent with the policy of the local English registries, and reflects the importance of privacy in the common law tradition. With regard to the procedure for the registration of a memorial, the Act specified only the requirements for registration and the general manner by which it should take 49Hopper, op.cit., quoted in DiCastri, p. 1-11. 50Statutes of Upper Canada, 1795, 35 Geo. 3, c. 5, s. 8. 51Armour, 71. 37 place. It did not outline a sequence of activities intended to comprise a single coherent procedure. As the focus of the diplomatic analyses which follow will to a large extent be shaped by what can be known of the registration procedure and of the documents required under that procedure, it is therefore necessary at this point to construct a conceptual procedural outline. This can be done by first considering all the requirements for registration described in the Act, and the activities undertaken in order to meet those requirements. The Act specified that "all and every memorial or memorials so to be entered and registered, shall be put into writing, and brought to the said [registry] office."52 In the case of deeds, the memorial was to be "under the hand and seal of some or one of the grantors, or some or one of the grantees, his or their heirs, executors, or administrators, guardians or trustees." It was also to be attested by two witnesses, one of whom was to be one of the witnesses to the execution of the deed, the memorial of which was being registered. This witness was to be present before the registrar or his deputy in order that he should "upon his oath ... prove the signing and sealing of such memorial, and the execution of the deed or conveyance mentioned in such memorial." After administering the oath, the registrar or deputy was instructed to "endorse a certificate thereof on every such memorial, and sign the same." The deed itself was to be produced "Statutes of Upper Canada, 1795, 35 Geo. 3, c. 5, s. 4. 38 to the registrar or deputy registrar at the time of registration, and the registrar or deputy was required to "endorse a certificate [of registration] on every such deed," mentioning "the certain day, hour and time" when the memorial was "entered and registered," and also indicating the book and page number in which the memorial was entered and also the number assigned to it.53 Finally, the registrar or deputy registrar was required to "sign the said certificate when so endorsed," and the certificate was to "be taken and allowed as evidence of such respective registries in all courts of record whatsoever." It is not stated explicitly, but it is implied and was in fact the practice that the deed itself should be retained by the party or parties initiating the registration. Finally, the registrar was instructed to "enter or register the said memorials in the same order that they shall respectively come to his hand." This description of the manner of registration is not suitable for the purposes of diplomatic analysis, nor is it complete. In the first place, it is implicit in the description of the certificate of registration that, at some point prior to the endorsement of the certificate by the registrar on the back of the original deed, the memorial has already been entered in a register book. Secondly, additional requirements for registration were outlined in other parts of the Act which also have procedural implications. The Act states that every page of 53Ibid., s. 5. 39 the register book should be numbered, and that every memorial entered therein should also be given a number. The Act also requires that an annotation be entered "in the margins of the said register books and of the said memorial," which should indicate "the day of the month and the year and hour or time of the day when every memorial is registered."54 In order to provide access to the memorials, the registrar was also required to "keep an alphabetical calendar of all townships and parishes" within the district under the jurisdiction of the registry office. The calender was to consist of the names of all the parties mentioned in registered memorials, listed opposite the number of the corresponding memorials. Finally, the registrar was entitled to a collection of fees.55 The Act's failure to outline a sequence of steps has posed legal as well as diplomatic problems, and the solution proposed by jurisprudence is interesting even if it is not entirely suited to diplomatic purposes. The legal discussion has concentrated primarily on determining the precise moment of registration, an issue of particular legal importance with regard to the priority provisions described earlier. The problem was made no less 54Ibid. 55In 1795 the fees were two shillings and six pence for the registration of a memorial not exceeding one hundred words, and thereafter the rate of one shilling for every hundred words above the first hundred. The same rates were to apply for certificates or copies issued out of the office. These fees remained unchanged until the introduction of a new fee structure in 1853. 40 difficult by the precise manner in which the Act required the registrar to certify registration. As Armour states, "there is no direction in this Act as to the manner in which registration was to be effected."56 One possible construct was provided by Chief Justice Harrison, who divided the prescribed duties of the registrar into two classes: "those that relate to the registry, and those which are to follow registration, and are designed to evidence it."57 Yet, as Armour shows, the simplicity of this logical division was not transformed into a corresponding legal division, and thus, as a general guideline, this categorization has not proved useful.58 Rather, acting on the assumption that all these activities were essential to registration, Armour states that "we must resort to the fiction that all the duties of the Registrar are supposed to be performed simultaneously as soon as he has received the instrument."59 In practice, he says, registration was always considered complete when the instrument had been received by the Registrar. ... It was also a universal practice for the Registrar to certify the registration as having taken place at the moment when the instrument was received for registration.60 Thus, the legal determination of the moment of registration was derived by neatly avoiding the fact that in a world of practicality, all the requirements of registration can only be 56Armour, 71. 5 7Lawrie v . R a t h b u n , 38 U.C.R. r 2 6 1 , q u o t e d i n Armour, 6 3 . 58See Armour, 6 3 - 7 2 . 5 9 I b i d . , 6 8 . ^ I b i d . , 7 2 . 41 met in succession, rather than at once. For this reason, and on the basis of the preceding overview of the Registry Act, a diplomatic procedural outline for the registration of the memorial of a deed as it was prescribed in 1795 reveals a necessary logical sequence: Step 1 Presentation by the purchaser to the registrar of memorial of deed, in the prescribed form and properly attested, together with original deed;61 Step 2 Payment of fees; Step 3 Oath of witness before registrar, and endorsement of certificate on memorial by registrar; Step 4 Transcription of memorial in register; Step 5 Entering of marginal annotation in register; Step 6 Endorsement by registrar of certificate of registration on back of deed and deed returned to owner; Step 7 Entering of memorial references in alphabetical calendar; Step 8 Filing of memorial and affidavit of witness. In practice, it is perhaps unlikely that the registering party was required to wait while the clerk of the registry office transcribed the memorial into the register book before being issued a certificate of registration by the registrar. Yet, the information contained in the certificate presupposes that entry 61Unless otherwise specified, the term registrar is used to refer to either the registrar or the deputy registrar. 42 in the register has in fact taken place. It is perhaps more likely to assume that the act of registration was begun, or the place in the register simply identified, and that the certificate was issued more or less immediately. This procedure remained substantially intact until the registry system underwent a major reform in 1865. But there were some minor changes and clarifications of detail introduced in the interim, some of which affected procedure. Many of these were introduced under the Registry Law Amendment Act of 1846.62 This Act conceded that the witness to the execution of the deed and memorial no longer needed to appear in person before the registrar or deputy registrar, but could instead swear his oath before any judge of the Court of the Queen's Bench, or any judge of a District Court, or any commissioner of the Court of the Queen's Bench.63 Also, a corporate seal affixed to any deed or memorial was to be considered in itself sufficient evidence of the due execution of the deed or memorial, and no further verification was to be required.64 The Act further stated that the registrar was under no obligation to register any instrument unless all fees had already been paid.65 The fees themselves remained constant at the levels set in 1795, and were not changed 62Statutes of the Province of Canada, 1846, 9 Vict., c. 34. 63Ibid., s. 7. MIbid., s. 29. 65Ibid., s. 27. 43 until 1853 when the Act was amended to introduce a more elaborate fee structure.66 The 1846 Act also required that every registry office be provided within eighteen months of the passing of the Act with "safe and proper fire-proof offices and vaults ... for the keeping of all books, records, and other papers belonging to the office of Register."67 The cost of each new registry office was not to exceed two hundred and fifty pounds, and the expense was to be borne by the Council of the District in which the county office was situated. In addition, the Provincial Secretary was to provide, at the District Council's expense, every registry office with "fit and proper" register books, which were to be "of one uniform size or nearly so."68 Yet, where previously there had been one register book for each entire county, there was now to be a separate book for each township or city.69 From 1853, following the dissolution of the District system of local government, the county treasurer became responsible for providing each registry office in the county with proper register books, and these were to be paid for "by such Treasurer out of the ^Statutes of the Province of Canada. 1853, 16 Vict., c. 187, s. 8. 67Statutes of the Province of Canada, 1846, 9 Vict., c. 34, s. 19. 68Ibid., s. 22. 69Ibid. 44 County Funds."70 A schedule to the 1853 Act also provided the form for a certificate which was to accompany each register book. Where this certificate had previously been issued by the Provincial Secretary, it was now to be issued by the Judge of the County Court having jurisdiction in the county in which the office was situated.71 The only other significant change preceding the reforms of 18 65 was the introduction of a registry account book.72 Formerly, the method of keeping accounts had not been regulated, and presumably had been left to the discretion of each registrar. But from 1853, every registrar was required to keep a book in which were to be entered all fees received, broken down according to memorials, certificates and other documents, and searches.73 A return was accordingly to be submitted "in detail" to the legislature annually.74 In 1865, all of these amendments to the original Registry Act were consolidated in a new Registry Act, which itself 70Statutes of the Province of Canada, 1853, 16 Vict., c. 187, s. 3. 71Ibid. , and Schedule. 72Ibid. s. 9. 73Ibid. 74Ibid. 45 introduced substantial changes into the system.75 These changes were primarily related to a relaxation of the secrecy provisions which had been so pervasive in the original registry legislation. The Act discontinued the practice of registering memorials of deeds, and instead required for the first time the registration of the original deeds. From 1 January 1866, registration was to consist of the deposit of the original deed in the registry office, rather than the deposit of a memorial of the deed.76 The deed, together with all the required affidavits and certificates, except certificates issued by the Registrar, was to be copied "at full length" in the register book.77 In the case of two or more original deeds, only one deed was to be deposited, but the registrar was instructed to endorse upon both deeds a certificate of registration.78 The other important change under the 1865 Act was the introduction of a second index. The registrar had still to compile an alphabetical index which, although required under the initial 1795 act, was now to be kept according to a clearly prescribed form.79 But the second index, called an abstract index, was completely new and was to be a geographical index 75Statutes of the Province of Canada, 1865, 29 Vict., c. 24. 76Ibid., s. 35. ^Ibid., ss. 30, 40. 78Ibid., s. 31. 7 9 Ibid . , s . 29, and Schedule F. 46 rather than an alphabetical one.80 It was to be organized according to a prescribed form with "a separate and distinct head" for each lot of land as originally patented by the Crown. Under each heading was to be entered specific information abstracted from every registered instrument pertaining to that lot. There was even a column entitled "Consideration," requiring for the first time a disclosure of price. This abstract index greatly increased access to the documents, as it made it possible to search a title without necessarily knowing the names of the parties involved in every relevant transaction — something which had been impossible to do with just the alphabetical index. Moreover, while both these indexes were to be introduced on 1 January 1866, the Act stipulated that "in order to make every Index required by this Act complete," it was to be the duty of every registrar to enter in the indexes all the registrations affecting lands which had been recorded prior to that date.81 In other words, the abstract indexes were to be made retroactive to the initial patent from the Crown.82 The government's new approach to public access was perhaps best revealed in the Act by the statement that all the books of 80Ibid. , s. 28, and Schedule E. 81Ibid., s. 33. 82The abstract index ultimately replaced the alphabetical index as the primary tool for conducting a title search. The alphabetical index was closed in 1972 by Statutes of Ontario, 1972, c. 133, s. 11, and Neave states that it was of little importance for many years prior to that. Neave, 504. 47 the registry were to be deemed the property of the Crown "for the use and benefit of the public."83 This contrasts sharply with the situation as it had existed before, where the public had been denied access except at the discretion of the registrar. Yet, while it is interesting to speculate on the philosophical underpinnings of this shift in policy, it seems reasonable to suggest that it was also motivated by an effort to provide relief for what must by this time have been a terribly over-burdened and inefficient system. The staff of the registry office had been responsible not only for carrying out the activities required for registration, but also for searching titles on behalf of parties to a conveyance. Now, much of this work was to be shifted from the registry office staff to the interested parties themselves. For the first time, the books of the registry and the registered documents were to be made available for public inspection. The Act stated that, in addition to issuing copies and abstracts, the registrar was now also required to "exhibit the original registered Instrument, and also the books of the office relating thereto when the party desires to make a personal inspection of such books."84 As Armour points out, this was a remarkable change from 1795, as it allowed for the first time the whole title to be "spread upon the books" and opened to the public view. 83Ibid., s. 20. MIbid., s. 18. 85 Armour, 60. 48 Other changes were also brought about by the 1865 act, such as the granting to every registrar of a seal of office for the purpose of formalizing certified copies86 and the introduction of a new fee structure.87 Provision was also made in case the books of the registry should become damaged through use, and the Act required that any such book be copied at length into another book, accompanied by a prescribed set of affidavits attesting to the authenticity of the copy, and that "every such original book shall, nevertheless, be carefully preserved."88 Also, with the discontinuation of the practice of registering memorials, it was of course no longer necessary for a witness to swear to the execution of both the deed and the memorial. It was still necessary, however, for one of the witnesses to the deed to provide an affidavit of the execution of the deed, sworn before a qualified official.89 The witness was required to set forth his name, place of residence, and occupation, and to swear to the execution of the original and duplicate if any; to the place of execution; and to his personal knowledge of the parties to the instrument, "if such be the fact," or of one or more of them, "according to the fact."90 In addition, the affidavit was to be 86Statutes of the Province of Canada, 1865, 29 Vict., c. 24, s. 19. 87Ibid., s. 68. 88Ibid., s .27. 89Ibid., s. 42. ^Ibid., s. 39. 49 "made on the said Instrument," rather than appended to it as had been acceptable in the past, and it was to be "copied at full length in the Register Book." The requirement that the affidavit be "made on the said Instrument" was the cause of some confusion,91 however, and in 18 68 this phrase was amended to say "made on the said Instrument or securely attached thereto, . . . . "92 Finally, although it appears to have always been a general practice, the registrar or deputy registrar was for the first time required to sign the marginal annotation in the registry book.93 As for the 1795 Act, the 1865 Act provides a general description of the "manner of registering," but neglects to provide a sequential outline of the procedure to be undertaken. Nonetheless, a logical sequence of activities can be determined in order to construct a conceptual procedural outline: Step 1 Presentation by the purchaser to the registrar of original deed (or both original deeds in the case of two originals), together with affidavit of execution and any other necessary affidavits; 91Ibid. , s. 40. Responding to a letter on the question in March 1866, the editor of the Upper Canada Law Journal stated his view that the act required the affidavit "to be on some part of the instrument itself, and that annexing an affidavit does not seem to be sufficient under the wording of the act." Upper Canada Law Journal 2 (March 1866): 82. 92Statutes of Ontario. 1868, 31 Vict., c. 20, s. 39. 93Statutes of the Province of Canada. 1865, 29 Vict., c. 24, s. 54. 50 Step 2 Payment of fees; Step 3 Transcription of deed and all affidavits in the register; Step 4 Entering of marginal annotation in register with signature of registrar; Step 5 Endorsement by registrar of certificate of registration on back of deed(s); Step 5 Entering of deed references in alphabetical and abstract indexes; Step 6 Filing of deed with all affidavits. The requirements for registration outlined above were confirmed by statute in 1868 by the newly constituted Ontario Provincial Parliament.94 The 18 68 Registry Act also introduced a complete schedule of forms and amended the witness' affidavit of execution to include, in addition to all the other elements, an oath to the effect that he had been a subscribing witness to the deed. According to Mallon, this latter amendment implied that the witness had subscribed his name to the deed, thus disqualifying a marksman from being a witness.95 Beyond these changes, the land registration legislation remained substantially unaltered until the enactment of the Land Registration Reform Act in 1984.% ^Statutes of Ontario, 1868, 31 Vict., c. 20. 95J.W. Mallon, Reguirements for Registration Being a Guide to The Preparation of Deeds and Other Instruments for Registration in Ontario (Toronto: Carswell Company, 1941), 7. 96Statutes of Ontario, 1984, c. 31. 51 Having thus identified the legal requirements for the registration of a deed in nineteenth century Ontario, and from there deduced a conceptual set of outlines of the procedure governing the act of registration, it is now possible to proceed to a diplomatic analysis of the documents generated under that procedure. While the procedural outlines developed in this chapter will be used to structure the set of diplomatic analyses which follow, it should be emphasized that one of the objectives of a diplomatic analysis is itself to determine the procedural context of the documents being analyzed. The results of these diplomatic analyses may therefore either confirm the procedural outlines proposed here, or they may provide additional information about the procedure as it is revealed in the forms of the documents generated under it. In either case, the overall focus of enquiry will be the registration procedure, but the subject of the analyses will be the documentary residue of that procedure. 52 CHAPTER 2 THE REGISTRATION OF A MEMORIAL OF A DEED IN 182 2 As mentioned earlier, the registration of a deed under the original 1795 Registry Act consisted of the registration of a memorial of a deed, rather than the registration of the deed itself. This changed in 1865, when the registration of memorials was discontinued and replaced by the registration of the original deeds. Given this change in the requirements for registration, it is therefore appropriate to conduct a diplomatic analysis of the documents generated under the registration procedure both before and after 1865. This chapter consists of a diplomatic study of the registration of a memorial of a deed in 1822. The memorial to be examined here is representative of memorials registered prior to 1865, and is from the Frontenac County Registry Office in Kingston, Ontario (see Figures 1 and 2). 1 The memorial was registered on 21 February 1822 and pertains to the transfer of a parcel of land in what was then the town of Kingston between two gentlemen of that town, William Brass and Jerry Whitehead. Following the procedural outline developed in chapter one, this study will begin with a diplomatic lnMemorial of a Deed from William Brass to Jerry Whitehead (20 February 1822)," Book G, No. 762, Frontenac County Registry Office, Kingston, Ontario. 53 analysis of the memorial and proceed to a diplomatic analysis of the other documents which participated in the registration procedure. In all cases, the methodology of diplomatic analysis begins with an examination of the document itself and, on the basis of this analysis, gradually broadens its scope to include a consideration of the persons involved in the document, the specific act to which the document is linked, and the procedure or procedures which determined the function of that document in its original context. The most important objective of the analysis is to establish the context of the document through an examination of its forms, and thus to gain a more complete appreciation of its nature. The forms of a document are defined as all the characteristics of a document "which can be separated from the determination of the particular subjects, persons or places [the document] is about."2 In other words, form is the complex of the rules of representation governing the communication of a message by means of a written document.3 Documentary form is both 2Duranti, "Diplomatics I," 15. 3The term "written document" is used here to describe any message which is "produced on a medium (paper, disc, magnetic tape, etc.) by means of a writing instrument (pen, pencil, printer, etc.) or of an apparatus for fixing data, images and/or voices." The attribute "written" is thus used in diplomatics to refer to "the expression of ideas in a form which is both objectified (documentary) and syntactic (governed by rules of arrangement)" 54 physical and intellectual, and consists of the external make-up of the document as well as its internal articulation.4 Diplomatists have referred to the elements of the former as the document's extrinsic characteristics, and to the elements of the latter as its intrinsic characteristics. Conceptually, it may be said that the intrinsic characteristics are those which make a document complete, while the extrinsic characteristics are those which contribute to making it effective.5 A diplomatic analysis begins with an examination of a document's extrinsic characteristics and proceeds to an examination of its intrinsic characteristics. With respect to the memorial, several extrinsic characteristics are identifiable prior to reading the document. For instance, it is immediately apparent that the medium on which the memorial is written is paper, and that it consists of a single folio, written on both the recto and the verso.6 The Ibid. 4Ibid. 5Duranti, "Diplomatics V," 6. 6A folio is defined as a "leaf of paper, parchment, etc., especially if not numbered as two separate pages." Because the memorial is written on only one side of the paper, the other being used for the endorsement, the backing of the memorial can be referred to as a folio. However, a folio is also defined as a "sheet of paper folded once," such as is the case with the indenture to be examined in the next chapter. The Concise Oxford Dictionary, 7th ed. (Oxford: Oxford University Press, 1982): 380. For purposes of clarity, in the course of this study the former definition will in all cases apply unless it is specifically stated in the text that the sheet has been folded. 55 i J / /A <iy* r "^ > . 2> - , VJ. x« * ^ To (Vie Register of the County of ^tj^i^iS^^* / ^JQ 'efibttWQX JrtC to he registered pjr«uanl to the Statute of an Tnde iture of Bargain and tale, beal «ate the c.i.p'X^ ilaj of scT^^t <* w in the jear ofjDur ' "J rt ' W1' ' ' ' " * • • - * and ,tev-t~K.t!y / ^ ~' made between ^Crt^i^^t^j %?!.&. a1 u of ibe cuundi otlier part (.whereby the said oration of 4 , j /. , ^^^ *t/o-< ^^^J ^ ^ . <*< >**•**« sfflA't:6rA*- &- &C ufIa»fJ mont/ of lfppcl Cu»-J», 10 ^*.—~«, h-.id p*.d by .he ta.4 C*C*-t^<f •*•:*• w j j v4i —at or before the soiling and delivery hereof, the receipt and:' u <^sr- — -acknowledge, lur/f granted, bargained, sold, aliened, Eutuferred, released and confirmed unto the said CP***5&'. •?'''„' '••ZZ^XIL/L/^. 4, jLjs • • : -h«i™ »"d "sign* for ever, A L L ~ ^ b c 2 r - -Messuage or Tenement, certain piece tract or parcel' of. Land and Premises, situate, Jying and being is tbe Jfy-O&Zi'-C~ i n l u e Prorince of Upper Canaaa,,cbntoinin£j by admeasurement e-*^jj?£jJ&~ ^*^.Ax;^A'^t*-<... liC/iJSA^f '-rf,*.\:. .- vi***^-?^ JC" which said tract or parcel of land is butted aad , hounded as follows (that is (0 say) t '£ ^ , L.. i,. ,'^  / ^ ^ ,-A, <>.-..-,.<~t a^A^^^/^4.J^cC^^^^^£t^ be (he tome more or less, being eo-;<.-./t. t>-j.*..c£~*f ., e/bM ac*m Cf -'A*. "A. -*y^-To*elherwitfc_alt houseif ooUbouief Ynd buildings tlicreon erected; with ail woods, wayi, waters aad ^ water cuii.vti, and all and lingular the licreditamenu, improvements ami appurtenances thereto belonging, or -. in any wise appertaining, and the reversion and rrvenions, remainder "and remainders, rents, issues and profits • thereof; and all the estate, right, title, property, interest, claim and demand whatsoever, either at Law or U Equity of : X***^  l h e , a i d .&2*>teczkr^> /$st£y& . — -of, in, to or out of the same, and evfery part aod parcel tbereof*. the same, with'all and singular (he rights, members and appurtenances, uuto - the said eJi-***y f>l£sAiU*.X^^<^*y A^Jf mm.-heirs andassigrfs, to theonly proper use and behoof of thesaid cs*£&4-y ^A*-&?*£*** 06 JZ*~*>. f - 'w- : —^——;— ....ow———f —., heirs sod Wsigns for eger: which said Indenture '* — ^tf&^£^~ *//Z-y&£' ' J'aod is hereby required to be registered by me the said a%£*-*y ' ^ * £ L ^ > C _ « ~ . G £ > *'"•——1 — '. :^  '. ^Lttie Grant*-*^  in said are mentioaed. nitre hereto set my hand and seal, the " -„• dayof ' ^ o w * ^ '<. in the.jrear of our Lord Oiie Thousand Eight Jiundred aod Tweoty^ ^J l 4 i t - i : m ' ; ^ ; i l ^ ^ •" '•':•• •'-./•:" , ; / . ';--.?&y*# JXrSigned and Sealed in thepTUokgof h5e5 Fig . 1. Memorial of a deed, 20 February 1822, recto. 5 6 *.&f~zr m 1- Hwx •'•>-jp.-< : . . . . . .v--;-.----.«.^.. . . !i.r,..)f,i.i-r~^-ii.*j-.:>.:U;.fc:. :. .-- l K \ • l' 'T Sir, ,..,., . . . . . .,.„:iv &• K A p ?. U ' V - ' -* t f— -innITii iiM>i:-'-*('/"i'iir'»».|-«-- ^••N'|^  «»>,*? t-itJzi<-.vi',iY,Bqflfr ... "V MX: Fig . 2 . Memorial of a deed, 20 February 1822, verso. 57 folio measures 9% inches x 15% inches, has been folded twice and is endorsed.7 The memorial is a charta recta, which means that the layout of the writing is parallel to the shorter side of the folio. The format is a typeset form consisting of one paragraph, with the form blanks completed in a single handwritten script. The conceptual partitions of the document are introduced by typeset Gothic script, while the inscription and the concluding section of the clause of corroboration, preceding the attestation of the witnesses, are both in typeset italics. The memorial contains three signatures, and there is a plain white paper seal, square in shape, which has been affixed with an adhesive to the bottom right hand corner of the document opposite the signature of Jerry Whitehead. Annotations are also considered among the extrinsic characteristics of a document because they do not contribute to the document's completeness. Rather, they may contribute to its effectiveness by providing evidence of the execution phase of the procedure governing the creation and transmission of the document, or they may reveal subsequent steps in the transaction of which the document is a part, or they may consist simply of marks and labels assigned by the archives or records service responsible for the document's maintenance and retrieval.8 But 7The endorsement is the comment or explanation written on the back of a document. Etymologically, it is from the Latin in (on, upon) and dorsum (back). Concise Oxford Dictionary. 318. See Duranti, "Diplomatics V," 9. 58 whatever their role, the document itself is complete without annotations, and their function is auxiliary to the purpose of the document. Accordingly, it is appropriate at this stage of the diplomatic analysis of the memorial to examine the annotations which appear on it. The annotations are on the verso of the memorial, and run parallel to the longer side of the folio as for a charta transversa. The first of these forms part of the endorsement, and appears at the top left hand corner if the folio is open. It contains the title of the document, "Memorial of a Deed from William Brass to Jerry Whitehead," and a reference note, "G No. 762," indicating that at some point during the registration procedure the memorial was transcribed in Book G of the register and given the number seven hundred and sixty-two. These annotations were probably added by a clerk in the registry office as part of the office's administrative procedure. Being part of the endorsement, these annotations would have appeared on one of the outside "covers" of the folio when the folio was folded, indicating that their purpose was probably to allow for the easy identification and retrieval of the document. The second annotation appears directly below the preceding one and is a declaration by the registrar certifying the due administration of the oath of the witness. This is in fact a separate document, in the form of a certificate, which plays a 59 role in the registration procedure which is distinct from that of the memorial. As such, the certificate can be analyzed independently of the memorial. This will be done below, immediately following the analysis of the memorial, when the procedural context of the certificate can better be determined. Similarly, the third annotation, which appears on the right hand side, is a separate document which participates in a distinct phase of the registration procedure. This is the affidavit of the witness, and it proves the execution of the memorial and the execution of the deed to which the memorial relates. While this document too will be analyzed in detail below, it is possible even at this stage to determine the relationship between the affidavit and the certificate described: the affidavit provides evidence of the oath of the witness, and the certificate attests to the due administration of that oath. In order to identify the intrinsic characteristics of the memorial, it is important first to determine the pattern by which they have been grouped together. Alessandro Pratesi states that every document presents "an obvious typical structure,"9 and this is typically manifested in the division of the document into three sections: the protocol, the text, and the eschatocol. These sections correspond to physical partitions, and each 9Alessandro Pratesi, Elementi di diplomatica generale (Bari: Adriatica Editrice, n.d.), 62, quoted in Duranti, "Diplomatics V," 11. 60 section has a specific purpose. The protocol usually contains the administrative context and opening formalities; the eschatocol contains the documentary context and closing formalities; and the text comprises the body of the document and indicates the relationship of the document to the act of which it is a part.10 While each section tends to exhibit characteristics which are generally consistent from document to document, the components of each vary according to the specific function of the document and according to the nature of its creator. With respect to the memorial, the protocol is very short and consists only of the inscription. This is the mention of the addressee of the document, who in this case is clearly identified by the phrase, "To the Register of the County of Frontenac." The text consists of the entire main paragraph, and begins with "A Memorial to be registered," concluding with the phrase "the said Jerry Whitehead the Grantee in said Indenture mentioned." The purpose of the document is embodied in the disposition, and is usually indicated by means of a dispositive clause containing the principal verb in the text. In this case, the dispositive clause 10Alain de Boiiard, Manuel de Diplomatique Francaise et Pontificale, vol. 1 (Paris: Editions Auguste Picard, 1929): 255. French and German diplomatists have traditionally used the terms "initial protocol" and "final protocol" instead of "protocol" and "eschatocol." De Boiiard in fact uses the generic term "protocol" here, yet explains the use of "eschatocol" in a note, and indeed uses it in a chart on the following page. For a discussion of the origins of the terms, see Duranti, "Diplomatics V," at n. 18. For a more complete description of the three sections, together with a summary of the constituent elements of each, see ibid., 11-16. 61 reads "[This is] A Memorial to be registered ...." The eschatocol begins with the phrase "In Witness Whereof," and continues to the end of the writing on the recto. It consists of a clause of corroboration, which outlines the procedure undertaken in order to validate the document and guarantee its authenticity, and includes a mention of the chronological date. This is followed by the attestation, which is constituted by the signature of Jerry Whitehead. At the bottom left hand corner, the clause of corroboration continues, introducing the attestation of the two witnesses, Samuel Aykroyd and Aaron Brewer. Their signatures serve to authenticate the signature of Jerry Whitehead. In summary, the intrinsic characteristics of the document are as follows: Protocol: "To the Register of the County of Frontenac" inscription: "To ... Frontenac" Text: "A Memorial ... in said Indenture mentioned." disposition: "A Memorial ... Indenture mentioned." title: "A Memorial" dispositive clause: "[This is] A Memorial to be registered ...." Eschatocol: "In Witness ... [signatures]" clause of corroboration: "In Witness ... in the presence of" chronological date: "the twentieth day of February ... One Thousand Eight Hundred and Twenty-two" attestations: subscription of author: Jerry Whitehead subscription of witnesses: Saml Aykroyd Aaron Brewer 62 It is now possible to identify the persons involved in the creation and transmission of the memorial. Diplomatics assumes the presence of at least three persons in the creation of any document: the two protagonists responsible for its issue and receipt (the author and the addressee), and the writer. These may be three different individuals, or a single individual who assumed two or more roles; similarly, the persons involved in the documentation of the act may coincide with the persons involved in the act to which the document relates, or they may differ.11 In addition, a document may involve the presence of witnesses, whose role is to confer solemnity on the document, or to validate or authenticate the document or some aspect of it.12 With regard to the memorial, the author of the document is Jerry Whitehead, because the document has been issued according to his will and under his authority. The addressee is the registrar of Frontenac County. The writer, who is responsible "for the tenor and articulation of the writing,"13 is also Jerry Whitehead. The witnesses to the attestation of the memorial are Samuel Aykroyd and Aaron Brewer. It is a somewhat less straightforward process to identify nSee Duranti, "Diplomatics III," 5-14. 12Ibid., 8. 13Ibid., 7. 63 the persons involved in the act to which the memorial relates. In fact, there are two separate acts taking place: the main act involving the transfer of land, and the subsidiary action involving the registration of a memorial of the deed embodying that transfer. The act of registration is subsidiary in relation to the act of transfer because its execution presupposes the existence of the act involving the transfer. Each of these acts is governed by a procedure in which the memorial plays a unique role, and the act of registration is one step within the procedure required to complete the transfer.14 To clarify, it may be said that the act involving the transfer of land occurs at the "macro" level, while the act involving the registration of the memorial takes places at the "micro" level. To consider the macro level first, it can be understood from the memorial that the transaction represented in the memorial involves the transfer of a parcel of land from William Brass, the grantor, to Jerry Whitehead, the grantee, who are respectively the first and second party mentioned in the deed embodying that transfer. The act is a contract involving the convergence of the two wills represented in the deed in order to produce a single 14This type of act is also known as a compound act on procedure, where the final act follows a series of different acts, carried out concurrently or in sequence by a number of different individuals and/or organs. Each act embodies different motivations and interests and accomplishes a distinct function, yet each contributes to the accomplishment of the final act. Duranti, "Diplomatics II," 14. In this case, it can be said that the act of registration embodies the execution phase of the compound act on procedure governing the transfer of land (see below, page 66). 64 act, which is the transfer.15 By convention, diplomatics identifies the parties to a contract according to the order in which they are represented in the document embodying the contract.16 Therefore, William Brass, of the first part, can be said to be the author of the act as he is mentioned first, while Jerry Whitehead, of the second part, can be said to be its addressee, as he is mentioned second. In addition, the witnesses to the deed, who are thus also the witnesses to the act, are identified in the memorial as Samuel Aykroyd and John Lane. At the micro level, the author of the act of registration appears initially to be Jerry Whitehead, as is suggested by the phrase "is hereby required to be registered by me ...," and the addressee of the act appears to be the registrar of Frontenac County. In this sense, the act is a simple act, where the will to accomplish it is concentrated in one individual, Jerry Whitehead. Yet, it should be recognized that Whitehead is the author of the act of registration only in the sense that it is according to his will and authority that the act is initiated. When the entry in the register is analyzed below, however, it will become evident that the author of the act of registration as it is embodied in the subsequent phases of the registration procedure is in fact the registrar, and that the addressee is the 15For a more complete definition of the diplomatic categorization of acts, see Duranti, "Diplomatics II," 13-14. 'Duranti, "Diplomatics III," 17. 65 County of Frontenac. In this latter sense, the complete act of registration is a compound act on procedure in which the petitioner initiates the procedure and the registrar carries it out. With respect to the memorial, however, it is still correct to say that the presentation of the memorial to the registrar for registration is a simple act, and that the author is Jerry Whitehead and the addressee is the registrar. It is now possible to determine the relationship between the memorial and the procedures governing the two acts of which it is a part, these being the transfer of land and the act of registration. To provide a framework for this stage of the analysis, it will be useful to refer to a model developed by Duranti to represent the structure of modern procedures and the role of documentation within those procedures. Duranti's model is derived from the classical diplomatic analysis of medieval procedures, which was based on a distinction between the moment of action and the moment of the documentation of that action, and it attempts to adapt the methodology of diplomatics to the modern context.17 According to this model, every procedure is composed, conceptually at least, of six phases: initiative, inquiry, consultation, deliberation, deliberation control, and 17Duranti, "Diplomatics IV," 11-14. For a comprehensive description of the classical diplomatic analysis of the procedures governing the generation of documents, see A. de Boiiard, 61-111. 66 execution.18 This schematization will serve as the basis for the discussion of procedures in this study. With respect to the act involving the transfer of land, the memorial participates in the final phase of the procedure governing the transfer of land, the execution phase. The embodiment of the transaction in the memorial subsequent to its embodiment in the deed is necessary for the completion of the central act of the execution phase of the transfer procedure, which is registration. With respect to the act of registration itself, the memorial presented to the registrar by the party applying for registration embodies the initiative phase of the procedure. It is now possible, on the basis of the preceding analysis, to give a more detailed characterization of the memorial itself. As stated in the text of the document, this is a memorial of an 18The initiative phase consists of those acts, written and/or oral, which start the mechanism of the procedure. The inquiry phase involves the collection of the elements necessary to evaluate the situation, and the consultation phase involves the collection of opinions and advice after all the relevant data has been assembled. The deliberation phase embodies the final decision making, and the deliberation control is the intervention of an authority other than the author of the document embodying the transaction who exerts control over the deliberation and/or its forms. Finally, the execution phase is constituted of all the actions which give a formal character to the transaction, such as validation, communication, notification, and publication. Duranti, "Diplomatics IV," 14-15. 67 indenture of bargain and sale.19 While the nature of the author of the memorial is private, the nature of the document is public because it is addressed to a public official and the rules governing its form and the procedure of its formation were imposed by a public authority.20 In addition, as the transfer of land constitutes the primary act to which the memorial is linked, the function of the memorial with respect to the action is probative: the memorial provides evidence of the transfer but does not in itself embody the act of transfer. Finally, the memorial under consideration is an original, which in diplomatic terms means that it is a perfect document with respect to completeness and enforceability, and that it was the first to be issued in such a form by its creator.21 In summary, the diplomatic description of the memorial may be expressed as follows: 1822, February 20. Kingston, Upper Canada. William Brass grants to Jerry Whitehead town lot 323 in the town of Kingston, in consideration of the sum of one hundred pounds. Memorial of an indenture of bargain and sale, public, probative, original. 1 folio, r and v. 19A bargain and sale is "a contract ... by the owner of land, in consideration of money or its equivalent paid, to sell land to another person ...." Black, Black's Law Dictionary, 78. An indenture of bargain and sale is the document embodying that contract. For a more detailed description of an indenture, see below, page 80, note 29. 20For a discussion of the diplomatic concepts of public and private, see Duranti, "Diplomatics III," 14-17. 21Duranti, "Diplomatics, I," 19. 68 At this stage, in order to complete the analysis of the memorial, it is useful to return to the annotations described briefly at the beginning of this section. To consider first the affidavit of the witness, it is evident that the protocol of the affidavit is empty, and that the document consists only of the text and eschatocol.22 The entire text is composed of the oath of the witness, which can be summarized as: "Samuel Aykroyd ... maketh oath and saith ...." The eschatocol contains the attestation of Samuel Aykroyd, as well as the clause of corroboration ("Sworn before me"), followed by the chronological date ("the twentieth day of February 1822"), and the attestation of James Nickalls, Jr., deputy registrar. The act referred to in the affidavit is the swearing of an oath, and this is a simple oral act whose author is Samuel Aykroyd and whose addressee is the deputy registrar. The authority for issuing the affidavit lies with the official authorized to administer the oath, however, and so both the author and writer of the document are the registrar, while the addressee of the document is anybody with an interest in its content. The signature of the registrar therefore constitutes the subscription of the author, while the signature of Aykroyd serves as a countersignature and attests that the content of the document conforms to the will of the 22An affidavit is "a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation. Black, Black's Law Dictionary. 28. 69 author of the act. As the affidavit was issued by a public authority, the document is public in nature, and because it provides evidence of an oral act which was complete prior to its documentation, it is also a probative document. The affidavit serves to authenticate two of the documents presented to the registrar upon application for registration, the memorial and the deed, and so the affidavit participates in the inquiry phase of the registration procedure. The diplomatic description of the affidavit may be expressed as follows: [1822, February 20. Kingston, Upper Canada.] Samuel Aykroyd proves upon his oath before James Nickalls, deputy registrar, the due execution of a memorial by Jerry Whitehead and the execution of a deed by William Brass and Jerry Whitehead. Affidavit, public, probative, original. 1 page, written on the verso of the memorial to which it refers. The final annotation on the memorial, which consists of the certificate of the registrar regarding the administration of the oath of the witness, can be analyzed in a similar fashion. Again, the protocol is empty, and the document is made up of text and eschatocol. As is the case with many documents which provide evidence of an action but do not themselves embody that action, the dispositive clause is omitted from the text. Logically, the certificate should read: "This is to certify that . . . . •* The eschatocol consists of the attestation of James Nickalls, Jr., followed by the qualification of his signature identifying him as 70 the deputy registrar for the County of Frontenac. Nickalls is both the author and the writer of the certificate, and the addressee is the County of Frontenac. The act of administering an oath is a simple act, and the author of the act is the deputy registrar, James Nickalls, while the addressee is the witness to the memorial, Samuel Aykroyd. The document is a certificate, public in nature, and as it provides evidence of an act which was complete before being documented, it is also a probative document. The endorsement of the certificate on the memorial is one of the acts required to be undertaken by the registrar to provide evidence that due process has been followed, and so the certificate participates in the inquiry phase of the registration procedure. The diplomatic description of the certificate may thus be expressed as follows: [1822, February 20. Kingston, Upper Canada.] James Nickalls, Jr., deputy registrar for Frontenac County, attests to the administration of the oath of Samuel Aykroyd, witness to a memorial. Certificate, public, probative, original. 1 page, written on the verso of the memorial to which it refers. It is clear from the preceding analysis that what initially appeared to be a single document, that is to say, a memorial of a deed, is in fact a set of documents, and that each document plays a distinct role in the procedure governing the registration of the memorial. The memorial itself participates in the initiative 71 phase of the procedure, and the affidavit of the witness and the certificate of the registrar participate in the inquiry phase. A diplomatic analysis of the memorial thus reveals the procedural context of the memorial, and confirms in a tangible way the due prosecution of the procedure governing registration as it was manifested in the forms of the document. The next document to be analyzed is logically the original deed referred to in the memorial, which was also required to be presented to the registrar upon application for registration (see Figures 3 and 4) .23 After the registration of the memorial, this deed would have remained in the possession of the applicant for registration, Jerry Whitehead. As was the case with the memorial, it is possible that an analysis of this document will also reveal evidence of subsequent phases in the registration procedure. Again, the analysis of the forms of the document begins with an examination of its extrinsic characteristics. The medium is paper, and the deed consists of a single folio, written on both the recto and the verso. The folio measures 18% inches x 14% inches, and has been folded once lengthwise and twice crosswise. The top edge of the deed has been cut unevenly, which suggests 23"Deed. William Brass to Jerry Whitehead," in Upper Canada Land Papers (Collection 2266, box 1, folder II) , Queen's University Archives. 72 that it is an indenture.24 The deed is a charta transversa, which means that the layout of the writing is parallel to the longer side of the folio. The format is a typeset form, and the form blanks have been completed in a single handwritten script. The conceptual partitions of the document are introduced by headings in typeset Gothic script, some words and phrases are in typeset upper case humanistic letters, and the clause of corroboration relating to the attestation of the witnesses is in typeset italics. The deed also contains four signatures. The protocol and text are included in a single paragraph, but the eschatocol is indented to form a second, much shorter, paragraph. With respect to special signs, there is a large, crown-shaped watermark in the paper. There are also two plain white paper seals which have been affixed with red adhesive to the bottom of the indenture beside the signatures of William Brass and Jerry Whitehead. The seals are in the shape of a square, and the corners of each have been folded over to form a smaller square.25 24See above page 29, note 28, for the origin of the term indenture. The presence of an unevenly cut edge suggests that the deed was written in duplicate on the same sheet of paper, and that the sheet was then cut to form two separate but equally valid deeds. The uneven or "indented" edges of the two deeds could then later be matched in order to confirm the authenticity of the deeds. The location of the duplicate deed in this case is not known. However, as the duplicate deed did not participate in the registration procedure, a diplomatic analysis of it is not directly relevant to this study. Suffice to say, the duplicate deed most likely remained in the possession of the other party to the deed, William Brass. 25The seals would probably have originally contained the personal signets of Brass and Whitehead, impressed in red wax. As commonly happens, however, the wax has dried out and become detached from the document, leaving only the paper portion. 73 _day of o$Jru+*» made ihenr.JJsC  »'* <A&*-~%S . JPJJ** y°*L£^ 0 B r ^or4« OgeThomoDdl M^ji^^Xl,____, r __..,_.. .. ... x fj&fi%(l%tt .kJ, U h M , aat-baaaa.. and buikliap (Una* « kffanaiaiaf. asd lb* mmiq» aad mmam, nniaJn u4 rt—t aj., wiifn. and nur-cnnn, ami ill aud u-^ uJtr, lb* hanJuataM Ia>pnx*iKSt«, Cad lpfiartawaeM Ib*feo» bdengiaf. ar ii *>/ * • * pmautMnoC A«>t • • tha cwaie, ri-to. liilV iWr i< prapaaj, dais, aad aanaad <raal«wjalaerai UWari. Etanr. «*<C- ibr7 ** " . **•• *"al•* * * tidlttwdia—n, aat p r n i l M u J m ; part,'tad pafol &*>& , "*'••.-1# 6*P* gttf J ^ y tl> afraawd WiU» firea, ar pared of had, aertdrtiaifti. .nU pwiiw " ^ *•*» and wry rf dw> rigfcla, i«wt«n, aad •aavtea.ac*aI r>rcd and dkckargrd tnm •»• 1 ,- wtataanrr.'nt>~ " ^ ^ " " V * ' J- ^ ™ * S/^AJ?. ? ' — .1 . • • — & b«it»i«4 «• !» . , U<fc*oJy >vsp«f*ai,Bnarstaadbrhaar aflat «::>• idBaaiMrttan aad cacb tad anf^af A«a, d Wn and UHja*. n nunnc aad bra M M W J rajatral wwf stall *ad H ( i W U la^I - " ^ y—~$7yZ f mAjBt-u-uarr . , v S - , ^ i s ^ . • •$**tf*£^,i^£T . ^ - ! _, WidluaK»U.aad p m l n ^ M n*alia^>ilk cb«_if^feau^uJnrr, j ! pu< aad pared (>*raa( aad W H . < V _ t n U ; aod rijatfaaj iciicd <• htnof (r»««J, bwjtKJ, . . . , - „ - r^ •w, « o f f , »«ni '»- i«viy. *B u4 ntpto. tfc« H U htintim.*.. tul )>«•«• tan* • n i « « J . ' - kicwd la b* b«n^ uamt4, aa^My ^A *a iVj^5* lbC^ *i>k t k t a ^ ' t * . , f L I ? " • » Filbaat ttM fc*. ~ 1 . w U i . kak«mD>, ankriaUaa, aUon)Mk>a>r * « 1 «aau<wicr. afar af — . - -•*— tactaal •^•r^'--''- - ^ V ^ ' — ^ v - • f - * - * y — - . v y ^ ^ 7 > . ' W * J»i>-^- -piaiW. baiM<4. *My-**i*t W U a. toad,»«, (wrfrtl, ah-Jata, »jd «ltr««*ta* Bran ay taiauuKi la ttM • i m , afanJ-ia t>a at f i ih inm a«^  |j <a i^>. fcaxby J. • * • . « aa, .aaiii™. * M»ulaiM« ,< aa. .* a ^ * . • , ata^ » c n i m H M , a - «Ctt ayay att«f a«f—. T amon* wtmyctw. * fartK^ud M t^f la'waalai*' " • » > ! • act pwol Uwraaf, i j . DUB, ar in4cr -^"~ iDr^: , /<fe>-> «p..r.:i—- * a - ^ ~ ^ , i««, «-l »H. m l emj «Jw jwn-j ur r<nwu, lunn;. « ;a.auu; u j n^la. n^ti,aiii^ ir»«. ar iaictnt. af, i«r»V>. jbc aA • \ ^ A nni/*u>i wV«r tfafal ti w a a M i Wi«Jw», UIM; tad thi»e*. •*< J^KaWa^MawAaia iHww*-|K pau,!  • i j »Jl .1 .11 limn l.fiMfl*r, upuo Hie r«KHa>* 1^0*0, , r j n to* prup^ tottt^i en¥iJ!iVla«i7aj"^ . Us,. .n4 «»,;.!,, B . U , ^ , K^u-lnlsr, Icy .i-J t i« . l t , of a>» af pocaw la IK MOT, doo*, .ckaaoWJTJ, W™^ nd nealol, . 3 u l o.f, .xk «lU«.cn, C B . n j M t f . w . ^ n . . , , ™ lAa.i-.- »U»Ut^«.'fcw tW («»«, budcriail awt t fa lH l ( ru l i^ . aaarr,!^ and vaiiwf, af af arJ . bcarpby com«,M . * • iMt ia l rrtrj of ibcir H^H>, wmter^/ad^pjarttaaae.*, to tW aol; p n K i K , and araaof afia< m.t _ * j nuaabl^ ikiiwd, uwrd, m irijaiml. ^/'' -)-J p r t a - A - | ^ U aad K i l t , tl>< Oa 11 /Ate Jo*, •/&££'**. A Fig . 3 . Deed of land , 8 February 1822, recto. 74 - ^ r - r ^ r % -'.•.iir.mzi: i. 5fw •;;:o ;o -i--:. "c t:bi::.'..'L:j:.-G3 ;:!) n: " '••••_ " • - - V . •••••>•'>• v ,-; jir') tJ r . i ir , . - ^ j ^ .«£•:.* ir Y'-;,:cr •>:: riKcrfL-.-.u:: 1.1 •••• A Lr= ,U'1KII;C:II LI ' . ' , ' I :" . 'C;- . /L ' ,rii»II . ' • ; . ' l ic idl i l «:n;i ,m-i:ct'i Lrc,',=j=p^T . L''..-;* i( Fig. 4. Deed of land, 8 February 1822, verso, folded in half to show annotations. 75 In addition to these physical characteristics, there are four sets of annotations on the deed. The first is in the left margin of the recto, enclosed by entwined double lines, and is a receipt for the payment of one hundred pounds by Jerry Whitehead to William Brass. One hundred pounds is the consideration required under the terms of the bargain and sale embodied in the indenture, and the receipt of this in full is acknowledged by the signature of William Brass. The receipt carries the same date as the indenture (8 February 1822), and is witnessed by John Lane and Samuel Aykroyd. Clearly, this is a separate document which participates in the procedure governing the transfer of land. As the focus of this study is the procedure for registration, rather than the procedure for the transfer of land, a complete analysis of the receipt is unnecessary. Nonetheless, it can be said that the receipt is a document which partially embodies the final decision taken with respect to the terms of the transfer, and thus it participates in the deliberation phase of the procedure governing the transfer of land. There is also an annotation to the receipt, which is written directly below the bottom border of the receipt. This is simply a mention of the manufacturer of the form, and reads "KINGSTON—Printed at the Chronicle Office."26 On the verso, on what was one of the outside "covers" when the document was folded, is an annotation consisting of the title 26The Kingston Chronicle was a newspaper published in Kingston during the early nineteenth century. 76 of the document, together with a brief description of the contents. This is the endorsement, and is similar to the one which appears on the "cover" of the memorial. As the deed itself was not registered, it is unlikely that this was added by the staff of the registry office. More likely, it was added by the individual who compiled the document and was intended to assist in the deed's identification and retrieval. Beneath the endorsement is a cryptic note ("Regd. lOp"), which probably was added by the staff of the registry office, and may be a receipt for the payment of the fees for registration. Finally, also on the verso, there is an annotation consisting of the certification by the registrar of the registration of a memorial of the indenture. As this is clearly a separate document related to the registration procedure, it will be useful to return to it following the analysis of the deed itself. With respect to the intrinsic characteristics of the deed, the first step of the diplomatic analysis is once again to identify the three sections, protocol, text, and eschatocol. The protocol begins with "This Indenture," and continues to "Jerry Whitehead of the same place Gentleman of the other part." It includes the title of the document ("This Indenture"), and both the chronological date ("the eighth day of February ... One Thousand Eight Hundred and twenty two"), and the topical date 77 ("at Kingston in the Province of UPPER CANADA"). Also present are the superscription, which is the mention of the author of the document ("William Brass ... Gentleman"), and the inscription, which is the mention of its addressee ("Jerry Whitehead ... Gentleman") ,27 The text begins with "Witnesseth," and continues to "reasonably devised, advised, or required." It is introduced by the notification ("Witnesseth"),28 and consists almost entirely of the disposition. The dispositive clause is embodied in the formulaic expression "Doth grant, bargain, sell, alien, transfer, release, and confirm, ...." Intermingled throughout the disposition are three special clauses, two of obligation and one of derogation. The clauses of obligation are "And also that he the said Jerry Whitehead ... have, hold, use, occupy ... without the let, suit, trouble, hindrance ... of or by him the said William Brass ... or either of them," and "And further ... William Brass ... will at all times hereafter, upon the reasonable request ... or required," and the clause of derogation is "(under the reservations ... expressed in the original GRANT FROM THE CROWN)." 27See p. 64 above for a description of the diplomatic convention concerning the identification of parties to a contract. 28The notification serves to introduce the fact (or act) contained in the document by commanding the attention of all interested parties ("... pour annoncer, par un appel a 1'attention des interesses, le fait relate au coeur meme du document") . De Boiiard, 274. 78 The eschatocol consists of the last paragraph of the deed, and begins with "In Witness Whereof," continuing to the end of the recto. It is introduced by the clause of corroboration ("In Witness Whereof ... above first written"), and includes the attestation, which is constituted by the signatures of William Brass and Jerry Whitehead. At the bottom left hand corner, the clause of corroboration continues, introducing the attestation of the two witnesses, Samuel Aykroyd and John Lane. Their signatures serve to authenticate the signatures of William Brass and Jerry Whitehead. In summary, the intrinsic characteristics of the indenture are as follows: Protocol: "This Indenture ... of the other part" title: "This Indenture" datation: chronological, "the eighth day of February ... twenty two;" topical, "at Kingston ... UPPER CANADA" superscription: "William Brass ... of the one part" inscription: "Jerry Whitehead ... of the other part" Text: "Witnesseth ... or required" notification: "Witnesseth" disposition: "That the said William ... or required" dispositive clause: "Doth grant ... and confirm" first clause of obligation: "And also ... either of them" second clause of obligation: "And further ... or required" clause of derogation: "(under ... THE CROWN,)" Eschatocol: "In Witness Whereof ... [signatures]" clause of corroboration: "In Witness ... in the 79 presence of" attestations: subscription of author: William Brass subscription of addressee: Jerry Whitehead subscription of witnesses: Saml Aykroyd John Lane Predictably, the forms of the deed are more extensive and complex than those of the memorial. Nonetheless, the identification of the persons involved can proceed as before. As already stated, the author of the deed is William Brass, and the addressee is Jerry Whitehead. Because there is no sign of the intervention of a public authority, it can be said that the writers of the deed are also William Brass and Jerry Whitehead. The act to which the deed relates is the transfer of land from William Brass to Jerry Whitehead, and it is a contract whose author is William Brass and whose addressee is Jerry Whitehead. The deed is the embodiment of the contract, and thus it is also the embodiment of the deliberation phase of the procedure governing the transfer of land. With respect to the procedure for registration, the function of the deed is somewhat different than that of the memorial. While both were required to be presented to the registrar, the inscription and dispositive clause of the memorial indicate that the memorial is the primary document involved in the initiative phase of the procedure. The deed itself was simply provided to the registrar in order for the registrar to confirm the authenticity of the memorial, after which it was returned to the applicant. Accordingly, the deed 80 participates in the inquiry phase of the registration procedure. The title of the deed indicates that the deed is an indenture.29 As was suggested above in the discussion of the deed's extrinsic characteristics, this is further evidenced by the uneven cut of the top edge of the deed. As the deed is the embodiment of a contract between two private individuals, the deed can also be classified as a private document. The deed embodies the contract between Brass and Whitehead, without which the transfer of land between the two could not be realised, and so the function of the document with respect to the act of transfer is dispositive.30 Finally, like the memorial, the deed is an original. 29The legal definition of an indenture is "a deed to which two or more persons are parties, and in which these enter into reciprocal and corresponding grants or obligations. Black, Black's Law Dictionary. 393. Deed is a general term, and refers to any written document which has been signed and delivered. An indented edge, which is characteristic of early indentures, is typically not found in modern documents (for example, see the analysis of the indenture in the following chapter). 30A dispositive document is one which embodies the act to which it is related, and without which the act would not be complete. See de Boiiard, 47-8, and Duranti, "Diplomatics II," 7. DiCastri points out that a deed of land only gained dispositive value under the 1677 Statute of Frauds, when it became a requirement for a transfer of land to be embodied in a written document in order for the transfer to be effective. Prior to that, the act of transfer was embodied in the act of livery of seisin (see above, page 30, note 30) , and a deed simply described the terms of the transfer and provided evidence of it (i.e. the deed was a probative document). With the requirement that the transfer be in writing, however, "the dispositive, as opposed to the testimonial, character of the written instrument superseded the uncertain testimony of slippery memory." DiCastri, p. 1-3. 81 The diplomatic description of the deed may thus be expressed as follows: 1822, February 8. Kingston, Upper Canada. William Brass grants to Jerry Whitehead town lot 323 in the town of Kingston, in consideration of the sum of one hundred pounds. Indenture of bargain and sale, private, dispositive, original. 1 folio, r and v. At this point it is necessary to return to the annotation endorsed by the registrar on the verso of the deed, which was mentioned in connection with the extrinsic characteristics of the document. As is frequently the case with certificates, the protocol is empty. The text, however, contains a clearly articulated dispositive clause: "I do hereby Certify ...," and a description of the registration of the memorial of the deed, including the date and time at which the registration occurred and the place in the register where the memorial was entered. The eschatocol contains the attestation of James Nickalls, Jr., followed by the qualification of his signature ("Dy. Register, Frontenac"). This is clearly a certificate of registration, and both the author and writer of the certificate are the registrar, James Nickalls. The addressee of the certificate is Jerry Whitehead, who required the certificate as evidence that the registration procedure was complete. The act to which the certificate relates is the registration of the memorial as embodied in the simple act of entering the memorial in the register, which was carried out by the registrar during the 82 deliberation phase of the procedure governing registration. Yet, because the certificate attests to the registration of the memorial but does not directly contribute to the act of registration, it participates in the execution phase of the registration procedure. It also constitutes the final step in the execution phase of the procedure governing the transfer of land. The certificate is public in nature and, as it provides evidence of an act which was complete prior to being documented, it is a probative document. The diplomatic description of the certificate may be expressed as follows: [1822, February 21. Kingston, Upper Canada.] James Nickalls, Jr., deputy registrar for Frontenac County attests to the registration of a memorial of a deed. Certificate, public, probative, original. 1 page, written on the verso of the deed to which the registered memorial refers. It is interesting to note that the date of registration, as indicated in the certificate described above, is one day later than the date of the oath of the witness before the registrar, as indicated in the certificate to that effect endorsed on the memorial. The reason for this may or may not become clear upon an analysis of the register. But in any regard, it is evident at this stage that an analysis of two documents has revealed what are in fact five separate documents generated at various stages during the procedure for registration. Before considering these 83 documents altogether, however, it will be useful first to undertake an analysis of the register. The register presents a unique problem diplomatically, for the diplomatic forms of the document entered in the register are determined as much by the physical characteristics of the register as they are by the nature of the transcribed document itself. In fact, in a very real sense the register constitutes one record made up of the aggregate of all the record entries and can itself be analyzed on the basis of its own extrinsic and intrinsic characteristics. However, for the purposes of the analyses conducted here, the register will only be considered as a physical entity and will be examined among the extrinsic characteristics of the registered memorial, while the consideration of intrinsic characteristics will concentrate only on those of the relevant register entry. The register in which the memorial was entered is a brown leather-bound volume measuring 10 inches x 15 inches (see Figure 5) .31 Embossed on the front cover, in Gothic script, is the letter "G,M signifying that this is book G of the land register for Frontenac County. Inserted inside the front cover of the register is a separate slim paper notebook with the edges of the pages cut in the form of a thumb index. This is an alphabetical 31Register for the County of Frontenac, Book G (24 May 1821 to 12 July 1823), F309, Queen's University Archives. 84 index to this volume of the register. The register entry related to the memorial under consideration comprises two pages, one opposite the other, and each page has a wide margin on the left hand side. The entry is handwritten in a single script. In addition to these physical characteristics, there are several annotations accompanying the entry of the memorial. At the top of each page is a number, indicating the page number of the register ("146, 147"). In the margin of each page appears the annotation "N° 762," which is the number assigned to the memorial by the registrar upon registration.32 At the bottom of page 146, in the margin, is written the word "City," which was probably added to distinguish this entry from those relating to transfers of land in the county.33 Besides these annotations, which are of a purely technical nature, there are two substantive annotations which deserve a closer examination. In the left margin of page 146, there is a statement, written and signed by James Nickalls, the deputy 320riginally the memorial numbers were assigned separately for each volume, but in the 1860s they became consecutive according to the order of registration. Shirley C. Spragge, "The History of the Land Record Copy Books," in Land Records in Ontario Registry Offices, ed. A. David McFall and Jean McFall (Toronto: Ontario Genealogical Society, 1987), 11. 33It may be recalled that there was at this time only one register for each county. It was not until 1846 that the registrar was required to keep a separate book for each township and city (see above, page 43). 85 I >J^^:f*tf„ _ ™ ~ ^ , « -»~~f*~>""S-"** AJ / & « £ £ ! . . \Ca*z€tf{^C0+££2UA>u€^&&Y£Cffto<*LAetr****i CStfersttJ't/.tffail. \ & i - ^ i i W . £??£*&&•. t?C-Ji&*&£<j^'- 1. •4fk~rr/* •« i^?* . - ' Fig . 5. Entry No. 762 in Frontenac County R e g i s t e r G. 86 registrar, indicating the date and time of the registration of the memorial, and also the location in the register of the relevant entry and the number assigned to that entry. Except for the omission of the opening phrase "I do hereby Certify that ...," this annotation corresponds exactly to the certificate of registration endorsed on the original deed. But where the certificate on the deed has a probative value with respect to the registration of the memorial, the marginal annotation in the register serves to authenticate the regularity of the procedure followed in registering the memorial. Moreover, while the author of the document transcribed is Jerry Whitehead, the author of the act of registration by transcription is the deputy registrar, and his attestation in the marginal annotation confirms that the registration of the memorial has been carried out according to his will.34 The final annotation is appended to the transcription of the memorial, and closely resembles the certificate of registration endorsed by the deputy registrar on the verso of the memorial. The only difference between the two is that the word "within" in the certificate on the memorial is replaced here with the word "foregoing." Both the certificate on the memorial and the transcription of the certificate in the register are in the hand ^The annotation cannot be considered a separate document because it does not perform a role in the registration procedure distinct from that of the entry in the register. It serves simply as a form of authentication of the register entry, and so remains an extrinsic element of the entry. 87 of the deputy registrar and each is attested by his signature. The transcription of the certificate in the register was not required under the Registry Act, and the significance of its inclusion as an annotation will be discussed in greater detail below. However, at this point it is possible to say that the transcribed certificate simply provides additional evidence of the regularity of the procedure followed in registering the memorial. With respect to the register entry itself, the primary act to which the entry relates is the registration of the transfer of land. The act of registration by transcription is a simple act, and the author of both the act of registration and the register entry is the deputy registrar. The addressee of both the act and the register entry is the county of Frontenac. As the register entry is the embodiment of the final decision taken in the registration procedure, the entry participates in the deliberation phase of that procedure. However, with respect to the larger act involving the transfer of land, the entry in the register serves as notification to any interested person that the transfer referred to in the registered memorial has taken place. The entry therefore participates in the execution phase of the transfer procedure. In summary, the diplomatic description of the register entry may be expressed as follows: 88 1822, February 21. Frontenac County, Upper Canada. Registration of memorial of deed in which William Brass grants to Jerry Whitehead town lot 323 in the town of Kingston, in consideration of the sum of one hundred pounds, dated 1822, February 20. Kingston, Upper Canada. Unabridged transcription in Frontenac County Register G, Entry No. 762, public, probative, original. 2 pages. On the basis of the foregoing analyses of the documents which participated in the act of registering the transfer of land, it is now possible to clarify the procedural context of each document by grouping them according to their role within the registration procedure. Following the six procedural stages as identified by Duranti, the documents participated in the registration procedure in the following manner: Initiative memorial (made and presented); Inquiry deed (presented); affidavit (made by a witness to both the deed and the memorial); certificate confirming oath of witness (endorsed on memorial); Consultation no additional documentary residue; Deliberation entry of memorial in register with marginal and appended annotations; Deliberation Control relevant legislation (consulted); Execution certificate of registration (endorsed on deed); entry in alphabetical index and in register index. 89 When this grouping of documents is compared with the legislated requirements for registration as reflected in the procedural outline proposed in the first chapter of this study,35 it is evident that the staff of the Frontenac County Registry Office carried out its responsibilities in a thorough and competent manner. Indeed, the two discrepancies which are apparent between the prescribed duties of the registrar and the manifestation of these duties in the documentary forms are the result of additional activities on the part of the registrar, rather than of any omission or avoidance of duties. Both discrepancies are related to the deliberation phase of the procedure, and both pertain to the entry of the memorial in the register. The first discrepancy concerns the marginal annotation made in the register by the registrar. According to the Registry Act, it was only required that this annotation should indicate "the day of the month and the year and hour or time of the day" when the memorial was registered, and the signature of the registrar was not mentioned. In fact, it was not until 18 65 that the registrar was specifically required to sign the annotation.36 The fact that the annotation was signed in this case, and the fact that annotations of this nature appear to have been signed consistently by this registrar, indicates that the need for the 35See above, page 41. 3629 Vict. , c. 24, s. 54. 90 authentication of the register entry was realized long before 1865. The signature of the registrar therefore provided an added security in the form of an attestation that the forms of the transcription of the memorial were correct and that they corresponded perfectly to the will of the registrar. The second discrepancy concerns the transcription in the register of the certificate confirming the oath of the witness. As stated above, this annotation in the register was not required under the Registry Act, and in fact it was never made a statutory requirement. While the annotation does provide an additional authentication of the procedure governing the transcription of the memorial, it is in fact unnecessary. The transcription of the memorial in the register presupposes the swearing of the oath by the witness, and this in any case was to have already been attested by the certificate endorsed on the memorial. The annotation may perhaps simply have been intended to safeguard the information concerning the registration transaction in case the original memorial were ever lost or destroyed. One final issue which should be addressed is the one day lag between the date of the administration of the oath of the witness by the registrar and the date of registration. As was mentioned earlier in the discussion of the conceptual outline for the registration procedure, it would appear unlikely that the registering party and the witness were required to wait for the 91 registrar to transcribe the memorial into the register before being issued the certificate of registration. However, it is clear from the discrepancy in dates that the registrar did not issue the certificate immediately upon application for registration. What would appear to have been the procedure is that the applicant presented the memorial for deposit, at which time the registrar examined both the memorial and the deed and administered the oath of the witness. The applicant was then instructed to retain the deed and to return with it at a specified time, at which point the registrar would have completed the entry of the memorial in the register and would endorse the certificate of registration on the deed. In other words, the legal "fiction" referred to by Armour of the coincidence of the moment of application and the moment of registration was clearly not observed by the registrar of Frontenac County.37 This concludes the diplomatic study of the registration of a memorial of a deed. The results of this study will be contrasted with those of the diplomatic study of the registration of a deed, which will be undertaken in the next chapter. 37Armour, 71. See above, page 40, for a discussion of this issue. 92 CHAPTER 3 THE REGISTRATION OF A DEED IN 1873 Under the 1865 Registry Act, the practice of registering memorials of deeds was discontinued and replaced with a system of registration of the original deeds.1 A study of the registration of a deed of land in 1873 will complete this diplomatic analysis of the documents generated under the Ontario land registration procedure. The deed to be examined in this chapter is from the Frontenac County Registry Office in Kingston (see Figures 6, 7 and 8) .2 It was registered on 1 April 1873, and pertains to the transfer of a parcel of land in the township of Pittsburgh between Michael and James Macdonald and John Doyle. This study follows the procedural outline developed in chapter one. It begins with a diplomatic analysis of the registered document, which is the deed, and continues with a diplomatic analysis of the other documents which participated in the registration procedure. 'Statutes of the Province of Canada, 1865, 29 Vict., c. 24. 2"Deed of Land, Michael and James Macdonald to John Doyle (October 28, 1872)," Township of Pittsburgh, Book D, No. 541, Frontenac County Registry Office, Kingston, Ontario. 93 The examination of the extrinsic characteristics of the deed reveals that the medium on which the deed is written is paper, and that it consists of a single folio which has been folded once to make two leaves. All the edges of the folio are evenly cut. Each leaf of the folio measures 10% inches x 16 inches, and the first leaf is written on only the recto, while the second leaf is written on both the recto and the verso. The document has been folded twice again crosswise and endorsed. The deed is a charta recta, which means that the writing is parallel to the shorter side of the leaf, and the format consists of a typeset form bordered by fine pink lines grouped in duplicate, triplicate and quadruplicate. The script is typeset italics, with the headings and various selected phrases written in typeset Gothic script. The form blanks have been completed in a single handwritten script, and there are four signatures on the deed. Finally, there are two plain round paper seals with jagged edges, purple in colour, which have been affixed with an adhesive to the bottom right hand corner of the recto of the second leaf, opposite the signatures of Michael Macdonald and James Macdonald. In addition to these physical characteristics, there are several annotations on the deed. The first is on the recto of the second leaf, in the left hand margin, and is a receipt for the payment of eight thousand dollars from John Doyle to Michael and James Macdonald. Eight thousand dollars is the consideration required under the terms of the bargain and sale embodied in the Mr**** 'S7 !I()W$fit5mtur ^\y$if-r${»yw$ Pi-* {Ije ^tycagj&ftfzp ^^y^&*~-ezz~ &£ eX—' £?-&<-£, ^-:f-dLL&^ est* X^ : ->-^ ^ ^ ^ 0 i M u } J h ^ f™ n w « * w W o f - -o f .+#0/&=*»»*^«a!f' A-O 4&C Ja^f fUwi^ of ffu, fittf- tnXt*-**d« pxv&u^ of**,, fa*v pxxA ^ p qrtytif Wk £ * / £ Qifrf-IP nihility ./&*** az/acro /ucuxlcfScacAef] &Z*u£ Ct+ttt' fU4>H4&6& ,<H-/tt4X,fc- T ^ ^ i - t ^ S L <£*-£-<-&£ -*-*L*-^_«— **^ Q ••M Fig. Deed, 28 October 1872, first leaf, recto. 95 K^  H *&? h#P? tftfP&P fyof$>,««/e *&;,**% fi«x£y~ cf/A J^^'^^^^-^^'CJ- fuv&r '?>v-, -ftetAj ctttcC cutyz&ru -/o a*%cC fix/ 7Z™, *3*<^ w<4forut// -Stcuvf- Mi&z&cf- farm- -f&L &CWPI/ ^CX\t/wub yew/re*^ erf *&e fart frx*i- £c>rhx«xcvt'^e*/6 tfk, s#cud fut*h^ &f -/&u ffao^*£ jfavej- A&xrfrv^T~-&&?**. f&s/tJzA ri*r&to£A^fcwdt4>l<( <x,t*o etaf-eft- '/fuLSyixtceC fezu^^* <x&-flies j&t&f- futxf— J •*-A<z<tf/ a%<u£ JitxtteJ-fuw aA^/Al/s^ttccC -Cec+ttU jiti, rtevn eUC %yi\fisT&'sJrw^yiatAt-sC^-MJU fvz&l- ^>#xAr <CO^^CU4t«4-.-Mtssfrtt^ A&tf^. cfi <M# ^^.e-*—«£ fa*t -rtiat y^&p w& execute,yHtcw •jTi/if&bi/ cc^tcx^uctd <*£-iLA^Jxi££C -6utcfo a4 **uzt/ de/ >te4*tu&rj&, J -^te^te/o Js«xAe4 . ~«fe<*<««£ wit -S&!/ •fa&M*uz/<?j— . e y v ^ A ^ ^ f t F i g . 7. Deed, 28 October 1872, second l ea f , 96 Fig. 8. Deed, 28 October 1872, second leaf, verso. 97 deed, and the receipt of this in full is acknowledged by the signatures of Michael Macdonald and James Macdonald. The receipt carries the same date as the deed (28 October 1872), and is witnessed by H.G. Meagher. Aside from the fact that this receipt contains the signature of only one witness, while the receipt on the 1822 deed examined in chapter two contained the signatures of two witnesses, the two receipts are similar in nature and clearly serve the same function within the deliberation phase of the procedure governing the transfer of land. The remaining annotations are on the verso of the second leaf, and run parallel to the longer side of the leaf as for a charta transversa. The first of these is at the far left hand side, and consists of the registrar's certification of the due registration of the deed. This is clearly a certificate of registration, similar to the one endorsed by the registrar on the 1822 deed. However, this certificate differs from the 1822 certificate in two ways. First, unlike the 1822 certificate, this certificate is introduced by a reference to the title of the deed, "Deed, McDonald et al. to Doyle," and an abstract of the particulars of registration, "D Pittsburgh 541."3 It also contains the phrase "In 348," which may be a reference to another instrument. Secondly, the purpose of this certificate is quite distinct from the purpose of the 1822 certificate. As the deed 3As the certificate itself explains, this indicates that the deed was registered in Book D of the register for Pittsburgh Township and was given the entry number five hundred and forty-one. 98 on which the 1822 certificate was endorsed was not registered, but rather remained in the possession of the addressee of the deed, the certificate of the registrar provided evidence for the addressee of the deed that a memorial of the deed had been registered. Accordingly, the addressee of the certificate was the addressee of the deed.4 However, as the deed under examination in this case was itself registered and deposited in the Registry Office, the certificate endorsed on it provided evidence of the registration procedure for the municipality having jurisdiction over the land being transferred. Thus, in this case, the addressee of the certificate is the township of Pittsburgh. The author of the certificate is the registrar, and the certificate participates in the execution phase of the procedure governing registration. The diplomatic description of the certificate may therefore be expressed as follows: 1873, April 1. [Kingston, Ontario.] R.M. Rose, registrar for Frontenac County, attests to the registration of a deed involving the transfer of land from Michael and James Macdonald to John Doyle. Certificate, public, probative, original. 1 page, written on the verso of the second leaf of the deed to which it refers. To the left of the signature of the registrar in the eschatocol of the certificate is a barely distinguishable annotation consisting of the word "paid," followed by what may be 4See above, page 81, for a description of the 1822 certificate. 99 a signature. A similar annotation appeared below the endorsement on the 1822 deed, and these may both be informal receipts made by the staff of the registry office for the payment of the fees for registration. Immediately to the right of the certificate of registration is the endorsement. This consists of headings in typeset Gothic script with the form blanks completed in a handwritten script. It includes the title of the document, "Deed of land," the date of the document, and the names of the grantors and the grantee in the transaction involving the transfer of land. A space intended to be filled in with a description of the parcel of land under consideration has been left blank. Immediately below this are the names and address of the solicitors responsible for compiling the deed, Gildersleeve and Walkem of Clarence Street, Kingston. When properly folded, this endorsement would have appeared on one of the outside "covers" of the deed and would have facilitated the deed's identification and retrieval. The right half of the verso of the second leaf is devoted to the affidavit of the witness, which attests to the authenticity of the execution of both this deed and a duplicate original of the deed. This affidavit differs in several respects from the affidavit on the 1822 memorial, and presents several unique characteristics. In the first place, the format of this document consists of a printed form written in typeset italic script with 100 the headings written in typeset Gothic script, and the form blanks have been completed in a single handwritten script. Secondly, the affidavit is written on a separate sheet of paper which has been affixed to the deed with an adhesive, and covers a similar affidavit which is printed directly onto the deed itself. The affidavit which is printed onto the deed refers to the oath of Patrick Dunne, which was sworn before a notary public in Silver City, Nevada on 11 March 1872. This affidavit has been crossed out with two diagonal lines extending from each corner of the document to form a large "X." While the reason for the rejection of this affidavit and its replacement by the affidavit written on a separate sheet of paper cannot be determined absolutely, it is undoubtedly connected to the fact that the date of Dunne's affidavit precedes by some seven months the date of the deed whose execution it purports to attest.5 The second and legally valid affidavit refers to the oath of Henry Gordon Meagher of the city of Kingston, which was sworn in Kingston before a Commissioner for taking Affidavits on 1 April 1873. It may be noted that, while the signatures of both Dunne and Meagher appear in the eschatocol of the deed as witnesses to the execution of the deed, Meagher's affidavit states that the deed and duplicate deed were executed in Kingston, while Dunne's invalid affidavit states that they were executed in Nevada. As Dunne's affidavit was sworn prior to the execution of the deeds, 5The date of the execution of the deed is 28 October 1872. 101 it would appear that Dunne was making an educated guess as to where the deeds would be executed. This affidavit itself is a slightly more elaborate version of the 1822 affidavit, and contains a brief protocol which is partially enclosed by two lines forming a right angle. The protocol contains the entitling ("County of Frontenac")6 and the notification ("to wit"). The entire text is composed of the oath of the witness, which can be summarized as "I Henry Gordon Meagher ... make oath and Say ...." The eschatocol contains the attestation of H.G. Meagher, as well as the clause of corroboration ("Sworn before me"), followed by the topical and chronological dates and the attestation of Edward H. Smythe, a Commissioner for taking Affidavits. It may be recalled from the examination of the 1822 affidavit that the authority for issuing an affidavit lies with the official authorized to administer the oath, and so the author and writer of the document are the Commissioner, Edward H. Smythe. The addressee of the document is anybody with an interest in its content. The act to which the affidavit refers is the swearing of an oath, which is a simple oral act whose author is H.G. Meagher and whose addressee is Edward H. Smythe. The affidavit is public in nature, and as it 6The entitling is the name of the authority issuing the document, or of which the author of the document is an officer. Duranti, "Diplomatics V," 11. In this case, the author of the document is the Commissioner for Taking Affidavits, and the Commissioner is a Frontenac County official. The most common form of entitling in modern documents is the letter-head. 102 provides evidence of an oral act which was complete prior to its documentation, it is a probative document. The affidavit serves to authenticate the two original deeds, and so the affidavit participates in the inquiry phase of the registration procedure. The diplomatic description of the affidavit may thus be expressed as follows: [1873, April 1. Kingston, Ontario.] H.G. Meagher proves upon his oath before Edward H. Smythe, Commissioner for Taking Affidavits, the due execution of a deed and duplicate deed by Michael Macdonald and James Macdonald. Affidavit of execution, public, probative, original. 1 page, written on the verso of the second leaf of the deed to which it refers. There is one final annotation on the deed, which appears directly below the affidavit of the witness. This consists simply of the name and address of the manufacturer of the form and reads "(G.B. Ware, Litho., 16 Toronto St., Toronto).11 The annotation is printed in typeset italic script and is enclosed in parentheses. Having thus analyzed the extrinsic characteristics of the deed, it now possible to examine its intrinsic characteristics. Again, this begins with the identification of the elements of the protocol, text, and eschatocol. The protocol begins with "This Indenture," and continues to John Doyle ... of the Second part." It includes the title of the document ("This Indenture"), followed by the chronological date ("the twenty eighth day of 103 October one thousand eight hundred and seventy two"). Also present are the superscription ("Between Michael Macdonald ... and James Macdonald ... both of the First part"), and the inscription ("John Doyle ... of the Second part"). The protocol also contains a reference to the statutory basis of the deed ("In pursuance of the Act respecting Short forms of Conveyances"), which is the preamble, and an indication that the deed has been "made in duplicate." The text is introduced by the notification ("Witnesseth"), and continues to "their claims upon the said lands." It consists entirely of the disposition, and the dispositive clause is embodied in the phrase "Do grant unto the said party of the Second part ...." Three clauses of obligation are also incorporated into the disposition: "And that ... shall have quiet possession ... incumbrances;" "And the said parties of the first part ... will execute such further assurances of the said lands as may be requisite;" and "And the said parties ... release ... all their claims upon the said lands." Finally, there is also a clause of derogation similar to the one contained in the 1822 deed: "Subject nonetheless ... in the original Grant thereof from the Crown." The eschatocol begins with "In Witness whereof" and continues to the end of the recto of the second leaf. It is introduced by the first section of the clause of corroboration ("In Witness Whereof ... set their hands and seals"), and includes the attestation, constituted by the signatures of Michael Macdonald and James Macdonald. The eschatocol continues with the second part of the clause of corroboration, which introduces the attestation of the two witnesses, Patrick Dunne and H.G. Meagher. The signatures of the two witnesses serve to authenticate the signatures of Michael Macdonald and James Macdonald. In summary, the intrinsic characteristics of the indenture are as follows: Protocol: "This Indenture ... of the Second part" title: "This Indenture" chronological date: "Twenty eighth ... seventy-two" preamble: "In pursuance ... Short forms of Conveyances" superscription: "Michael Macdonald ... of the First part" inscription: "John Doyle ... of the Second part" Text: "Witnesseth ... upon the said lands" notification: "Witnesseth" disposition: "that in consideration ... upon the said lands" dispositive clause: "Do grant unto the said party of the second part ...." first clause of obligation: "And that ... have quiet possession of ... incumbrances" second clause of obligation: "And the said parties ... as may be requisite" third clause of obligation: "And the said parties ... their claims upon the said lands" clause of derogation: "subject ... the Crown" Eschatocol: "In Witness ... [signatures]" clause of corroboration: "In Witness ... in the presence of" 105 attestations: subscription of authors: Michael Macdonald James Macdonald subscription of witnesses: Patrick Dunne H. G. Meagher It is interesting to note that the forms of the deed are similar but not identical to the forms of the sample deed provided in the Schedule to the Registry Act.7 In particular, the statement in the protocol that the deed was made in duplicate was not required under either the Schedule to the 1859 consolidated version of the Act or under the 1865 Act. However, an editorial in the Upper Canada Law Journal. published immediately after the introduction of the 1865 Act, recommended that "instruments executed in duplicate should shew [sic] the fact by a short declaration at the commencement after the words "This Indenture," or in some other convenient place."8 While this suggestion was not reflected in legislation, the practice was apparently adopted in this case. On the basis of the foregoing analysis of the forms of the deed, it is now possible to identify the persons involved in its creation and transmission. Given that the deed is a contract between two parties, and that diplomatics identifies the persons in a contract according to the order in which they are presented Consolidated Statutes of Upper Canada. 1859, 22 Vict., c. 91, Schedule. 8"The Registry Act," Upper Canada Law Journal (February 1866), 29. 106 in the contract, the authors of the deed are Michael Macdonald and James Macdonald, while the addressee is John Doyle.9 There is no indication of the intervention of a public authority, and so, on the basis of the attestation, the writers of the document can also be identified as Michael Macdonald and James Macdonald. The primary act to which the deed is related is the transfer of land from Michael and James Macdonald to John Doyle. As stated, this is a contract whose authors are Michael Macdonald and James Macdonald, and whose addressee is John Doyle. The deed is the embodiment of the contract, and thus it is also the embodiment of the deliberation phase of the procedure governing the transfer of land. With respect to the secondary act in which the deed is involved, which is the registration of a deed, the role of the deed is quite different than it was in the case of the 1822 registration examined in chapter two. In that case, the deed was required as evidence of the authenticity of the memorial being registered, and therefore the deed participated in the inquiry phase of the registration procedure. In this case, it is the deed itself which was presented for registration, not a memorial of the deed, and therefore the deed participates in the 9Regardless of the diplomatic convention, it is also correct to say that Michael and James Macdonald are the authors of the deed because they are the only parties to execute the deed. Doyle did not execute the deed, and this confirms his role as addressee. (Note: The absence of Doyle's signature is consistent with Black's definition of deed, which is that it is "a conveyance of realty . .. signed by the grantor, whereby title to realty is transferred from one to another" [my italics]. Black, Black's Law Dictionary. 215) . 107 initiative phase of the registration procedure. As in the case of the 1822 deed, the title of the document indicates that the deed is an indenture. However, unlike the 1822 deed, all the edges of this deed are evenly cut. This may suggest that by the time this deed was executed, the unevenly cut edge of an indenture had become anachronistic and that the signatures and seals of the parties had become the primary means of authentication and validation of the deed. The deed is the embodiment of a contract between two private individuals, and as it was created without the intervention of a public authority, it can be classified as a private document. Moreover, as the deed embodies the contract between the Macdonalds and Doyle, without which the transfer of land between the two parties could not be realised, the function of the deed with respect to the act of transfer is dispositive. Finally, the deed is an original. Accordingly, the diplomatic description of the deed may be expressed as follows: 1872, October 28. [Kingston, Ontario.] Michael Macdonald and James Macdonald grant to John Doyle the south half of lot D in the township of Pittsburgh in the county of Frontenac, in consideration of the sum of eight thousand dollars. Indenture of bargain and sale, private, dispositive, original. 1 folio, folded, r and v. As was the case in the analyses undertaken in chapter two, the examination of the registered deed has revealed the presence 108 of several documents, each of which plays a distinct role in the procedures governing the transfer of land and the registration of a deed. These documents will be considered altogether below. However, as it is stated in the protocol of the deed that the deed was made in duplicate, it is appropriate to turn first to an examination of the duplicate deed.10 The duplicate deed was not deposited in the registry office, but rather would have remained in the possession of the grantee, John Doyle, in order to provide evidence of his ownership of the land referred to in the deed (see Figures 9, 10, 11, 12 and 13).11 As should be expected in a duplicate original, this deed is identical in almost every respect to the deed which was deposited in the registry office. The intrinsic elements are consistent with those of the registered deed, as are most of the extrinsic elements. The only differences lie in the handwritten script used to fill in the form blanks of the deed and in some of the annotations. The duplicate deed contains a variation of the certificate of registration which appears on the registered deed, as well as two other annotations which are not found on the 10For a discussion of the diplomatic concept of originality with respect to the two deeds, see below, page 12 0. The term "duplicate" is used here to indicate that the deed was issued in duplicate, and its use is not meant to suggest that the duplicate deed is a copy of the registered deed. n"Deed. Michael Macdonald and James Macdonald to John Doyle (October 28, 1872)," in Nickle Collection (Collection 2269, Box 22), Queen's University Archives. 109 '/h-L*^A**^o- /^-a>t*&v~~*<-££' t Fig. 9. First attachment to duplicate deed, recto. 110 3 (^ZA fc?r:-•v. Fig. 10. Second attachment to Duplicate deed, recto. l i! (Llmidlu^utur? cine. r/uaJaiic/ etcf/if /i<iur/iuC uUtL'. <&/><>•*:• fy 7e-f 7. if*it rutv^jmua* ol* lljt* ^ ck x-ts^ccl'mc ^ • " Z y ' ^ f r v fo(.ft/ii& efts <yca.C:// /ci-imr&z. /C£7C-ILVy/tT? 7,7- 7c t-ctc/uc^,^f£f/Z.^ ., -• h///Ky ?7tf7Sy^(S.&fW /'?s/r,Tr<c /£r " C//,//• 07/7/ -/•'/7/-C4S7 (5TT/ZC -7!,Kr£'n'-t /fa- /p<~-rc'itee"7y<t £/-7-tC77i77,i/i:(7'n-a-i-t,s7 / « / v v w 'j ;/ - £.&<///<':/u~7y<:<7?:\ / ' r—r/.i-tTZ-. /f/t-rc <T,&'&•,/'./•;.> r^,,, </-',Xr/ /77'cs-vrtft. . ^ Q i t n t ; i i ^ H l tlycii'jIT- r&u,yiircz<x,il<rus *f-•/ /aufid innuy <yf tiwiadcf, iicw lf>Gu4> 7y -/fU/^TtucC/lrn/y &y txlct/:&#7^6t /caif ,\rO 4-&C jttuf, ftaz&76.v/'tfn ,&*M- \3XXr7r I'tU- a r m / t<-/lirei/cJ -ftctcl-y (y &tf7*t ac/ntpn.licia<^, 6A77/ AxZc Jrczio fwc«f « v of-tfo; Jfoufr tttxiA "190 &\'<X\\V iwh /A,-,<„«( /u-l/y //77k, ^7e-r<r7 //ait /17S 7U,u> <M**C ttt.u'tf.ts fot, e-j.-tx-.,^ . ...„. _ „ _... . _, ,Yfrr. 7/77-/7' s/t-tsC ~/'l%-trw7.<£& T7 €*7&IUScri-iCz7/c-1/(77 iy'7i7f77/ca/7Cl,:77l7>t.^7'.7^k /77^77^/IL'T7 TtTTTt^ - Jct*e-/7 77/- fTalo a.£i£/p*0ii'£> ^l&oeas/Jo'r •///•^Tx/r/ 7/ea /C/fu/feu S"-J\" ' //- s S/Z. Jj l!7 itt/j ~<LfZ^7 u Fig. 11. Duplicate deed, first leaf, recto. 112 \ j •X ~V\ ^ N x \ itficiv 'ffu/ytfrx.lc£ <ct*tcoA J,'<rt/t• s~<0/IOL*{ yte'/ ••tUeu rxfici cU3t</ia ft a+tcLfi'tJit./a&ctO j A M JTT& a*"^ mdy ten.'%&X- CVCP -iflU-jVir luvti/iucds re fru, 7^-cti/n,^tni^ -cUkUstcvficnA fu^tt^oc'^ rvii*/, c*tu/i./lnvJ exfrudJttfC in- ft?*, il\\l£p«Ae piXitetS of A-8C jitM ^«*<- Cavxzictwi........ ,, Jrrid faUff cf Hit--JfCtt-UC' futof A&ert^&'^/ias&fa.tJfAi IM-ru-tf/ul Uxnd*+t<!a+vu acJ-cf /tu-r6uu-y fu<lfb/J' <.f- /Ac fa.tr/- ft-Ct.*/— j 5{lvtJ t u t ^ i -//ii^jtucf, ftaik/ cf'•/&. ^SJ>7~sC>'frC(.%'r-f/la-£l -/tttviJ qttli/- y*UU3£J-rur}V cf-/fib .JrutC <Ci-M.<{J -/ia. -falll cU6 WUi>t4ite=«cA £4nfc /&, ,^aiti fuizkiS cfjAv -fi~>i- {»«*&+• <Ccrt?<Xi<Z<4p .tii-Hl '/{us,<Sci<£ 'ftatft/ cf -ffu; -Je<UTt^Z'' f.a*.t- / / f c i / i S f e ^ M * ^ /2^T*yJ!-0 - - C i . Fig. 12. Duplicate deed, second leaf, recto. 113 Fig. 13. Duplicate deed, second leaf, verso. 114 registered deed. Before undertaking a diplomatic analysis of the duplicate deed itself, it will be useful first to consider the annotations which are unique to the duplicate deed. The certificate of registration which appears on the duplicate deed presents an interesting contrast to that which appears on the registered deed. As was the case with the certificate on the registered deed, this certificate appears on the verso of the second leaf of the folio on which the deed is written. However, this certificate runs parallel to the shorter side of the leaf as for a charts, recta. While both certificates are signed by the registrar, the certificate on the duplicate deed attests to the due registration of a "Duplicate of the Within Instrument" and does not include the introductory reference note which appears in the certificate on the registered deed. In addition, while the addressee of the certificate on the registered deed was the municipality having jurisdiction over the land referred to in the deed, the addressee of the certificate on the duplicate deed is the addressee of the deed. This is consistent with the certificate endorsed on the 1822 deed, where the addressee of that deed also retained possession of the deed and required evidence that the registration procedure had been completed. The author of all three certificates is the registrar, and the certificates participate in the execution phase of the registration procedure. 115 The diplomatic description of the certificate of registration endorsed on the duplicate deed may therefore be expressed as follows: 1873, April 1. [Kingston, Ontario.] R.M. Rose, registrar for Frontenac County, attests to the registration of a duplicate deed involving the transfer of land from Michael and James Macdonald to John Doyle. Certificate, public, probative, original. 1 page, written on the verso of the duplicate original of the deed held by the party of the second part. The other two annotations which appear on the duplicate original are in the form of attachments to the deed. Attachments are characteristic of modern documents, and consist of documents or copies of documents which are attached to or enclosed with a transactional document in order to provide additional information relevant to the transaction. This information may concern earlier stages in the procedure governing the transaction, or may concern another transaction which is related or analogous to the current one. In either case, the attachments become part of the extrinsic elements of the main document and are therefore considered among the annotations on that document. As with all other documents, the two attachments may be analyzed first in terms of their extrinsic characteristics, and then in terms of their intrinsic characteristics. To consider the extrinsic characteristics first, each of the documents is written on a sheet of blue legal-sized paper and is affixed to the deed with a wax seal, one sheet on top of the other. In 116 addition, both are written in the same handwritten script, and each contains a single signature in a different hand. From the similarity in medium and script, it is possible to conclude that these documents were compiled at the same time and by the same person. Also, the fact that they were attached to the deed rather than written directly on it suggests that their purpose is not directly connected to the registration procedure. A diplomatic analysis of the intrinsic characteristics of the attachments may provide further evidence to support these conclusions. The first attachment consists of an affirmation of fact provided by Michael Macdonald, one of the parties to the deed and a grantor in the transaction involving the transfer of land to John Doyle.12 By this affirmation, Macdonald affirms the fact that he is a bachelor and has never been married, and that he has "never been surety for any person to the Crown nor ... a bondsman to the Crown myself for any purpose." The protocol contains the topical date ("City of Kingston") and the notification ("To Wit"). The text, which begins with "I Michael Macdonald," is devoted to his statement that he is free of legal bounds or ties. The eschatocol contains only the attestation of Michael Macdonald. 12An affirmation of fact is "a statement concerning a subject-matter of a transaction ... which is affirmed as an existing fact material to the transaction, and reasonably induces the other party to consider and rely upon it, as a fact." Black, Black's Law Dictionary, 29. 117 Even though Macdonald's affirmation is written in a hand which is obviously not his own, the fact that it is an expression of his will and that it was created without the evident intervention of another authority indicates that both the author and writer of the document are Michael Macdonald. As the purpose of the document is simply to make public the author's affirmation, the addressee of the document is any member of the public with an interest in the document's contents. The act of making an affirmation is a simple act, whose author and addressee are the same as those of the document. The document is an original, public in nature, and as it embodies the act of affirming a fact, it is a dispositive document. The diplomatic description of the affidavit may thus be expressed as follows: [no date]. Kingston, Ontario. Michael Macdonald of Picton affirms that he is a bachelor, that he has never been married, and that he has never been a bondsman to the Crown or surety to the Crown for another person. Affirmation of fact, public, dispositive, original. 1 folio, recto, attached to a deed involving the transfer of land from Michael and James Macdonald to John Doyle, dated 1872, October 28. Kingston, Ontario. The second attachment consists of an affirmation of fact provided by James Macdonald, another party to the deed and the other grantor in the transaction involving the transfer of land to John Doyle. By this affirmation, Macdonald states that he is an unmarried man; that John Wafer, a former owner of the property 118 under consideration, was his grandfather; that John Wafer died intestate prior to 1 January 1852; and that Peter Wafer was the eldest son of John Wafer and was therefore his heir at law. The protocol contains the subject ("In the matter of . . . " ) , which is written as a style of cause in a court record. The text begins with "I James Macdonald," and is devoted to the affirmation of James Macdonald. The eschatocol contains the chronological date ("21 March 1873") and the attestation of James Macdonald. Again, even though the affirmation is written in a hand which is obviously not that of James Macdonald, the document is an expression of Macdonald's will and was created without the evident intervention of another authority. The author and writer of the document are therefore both James Macdonald and the addressee is any member of the public with an interest in the document's contents. The act of making a solemn statement is a simple act, and the author and addressee of the act are the same as those of the document. The document is an original, public in nature, and as it is the embodiment of the act of affirming a fact, it is a dispositive document. The diplomatic description of the second attachment may thus be expressed as follows: 1873, March 21. [Kingston, Ontario.] James Macdonald of Picton states that he is an unmarried man; that John Wafer was his grandfather; that John Wafer died prior to 1 January 1852; and that Peter Wafer was the eldest son of John Wafer and was therefore his heir at law. 119 Affirmation of fact, public, dispositive, original. 1 folio, recto, attached to a deed involving the transfer of land from Michael and James Macdonald to John Doyle, dated 1872, October 28. Kingston, Ontario. It would appear from an examination of these two affirmations of fact that neither is directly related to the procedure governing the registration of the deed. The only direct link to the transfer of land referred to in the deed is the mention in James Macdonald's statement of John Wafer, a former owner of the land in question. Yet, the fact that James Macdonald's affirmation was executed only nine days prior to the registration of the deed, and the fact that this affirmation was subsequently attached to a duplicate of the registered deed suggests that there is a very real connection between the two. Also, the similar extrinsic characteristics of both Michael and James Macdonald's affirmations suggest that the purposes of the two affirmations are similar. In point of fact, the presence of the two affirmations as attachments to the deed is very directly related to the registration procedure. It may be recalled from the discussion of the nature of the registry system in chapter one that the system provides for the registration of deeds, not the registration of titles. It is therefore necessary every time a transfer takes place to search the register in order to confirm that the grantor has clear title to the land in question and is 120 thereby within his or her rights to enter into a transaction concerning that land. Clearly, the purpose of the attachments was to confirm that there were no outstanding claims on the land granted to John Doyle, that no dower rights could apply, that the Crown had no interest in the land, and that a direct line of succession linked the Macdonalds to a former owner of the land. Thus, while the affirmations of fact do not participate directly in the registration procedure, but rather in the inquiry phase of the procedure governing the transfer of land, their creation is due to the unique requirements of the registry system. To complete the analysis of the duplicate deed, it is necessary to consider the diplomatic concept of originality and the manner in which originality is manifested in both the registered deed and the duplicate deed. As stated earlier, an original document is one which is perfect with respect to completeness and enforceability, and it must be the first to be issued in such a form by its creator.13 Both the registered deed and the duplicate deed meet these criteria. They were issued at precisely the same time, in precisely the same manner, and each is a perfect and enforceable embodiment of the transaction described in it. From a diplomatic point of view, both deeds are originals, and from a legal point of view both are of equal value and enforceability. As both were presented to the registrar upon application for registration, both participate in the initiative 13Duranti, "Diplomatics I," 19. 121 phase of the registration procedure.14 The diplomatic description of the duplicate deed may therefore be expressed in the same manner as that of the registered deed: 1872, October 28. [Kingston, Ontario.] Michael Macdonald and James Macdonald grant to John Doyle the south half of lot D in the township of Pittsburgh in the county of Frontenac, in consideration of the sum of eight thousand dollars. Indenture of bargain and sale, private, dispositive, original. 1 folio, folded, r and v. It is appropriate at this point to undertake a diplomatic analysis of the register in which the deed was entered. As for the analysis of the 1822 register undertaken in the previous chapter, the physical characteristics of the register will be considered among the extrinsic characteristics of the registered deed, and the consideration of intrinsic characteristics will concentrate only on those of the relevant register entry. The register in which the deed is entered is a brown leather-bound volume measuring 11 inches x 17% inches and consisting of eight hundred and eighty-seven pages (see Figure 14).15 There are decorative black bands embossed on the cover, 14Under the 1865 Registry Act, where "one of two or more original parts [deeds]" was registered, the registrar was required to endorse on each a certificate of registration. Statutes of the Province of Canada, 1865, 29 Vict., c. 24, s. 31. Thus, the presentation of the two deeds constitutes the initiative phase of the registration procedure. "Register for the Township of Pittsburgh, Book D (January 14, 1870 to October 6, 1873, Instruments 1 to 594), F116, Queen's University Archives. 122 and written on the spine in black magic marker is "D" and "PITTS," annotations doubtlessly added by registry office staff to aid in the identification and retrieval of the register. Attached with an adhesive to the inside of the front cover of the register is a certificate, signed and dated by the judge of the Frontenac County Court, attesting to the number of pages contained in the register.16 The edges of the first several pages of the register are cut in the form of a thumb index, which is an alphabetical index to this volume of the register. The entry related to the deed under consideration comprises one and a half pages, one opposite the other, and each page has a wide margin on the left hand side. The transcription is handwritten in a single script. In addition to these physical characteristics, there are two annotations of a technical nature accompanying the entry of the deed. A type-set number at the top of each page indicates the page number ("804, 805"). A second annotation "N2 541" in the margin of the left hand page, beside the beginning of the transcription, indicates the number assigned to the deed by the registrar upon registration. Annotations of a similar nature were included in the entry relating to the memorial in the 1822 register. 16From 1853, this certificate was required to be included with every register book provided to a registry office by the county treasurer. The form of the certificate was included in the schedule to the 1853 Registry Act. Statutes of the Province of Canada, 1853, 16 Vict., c. 187, s. 3 and Schedule. 123 804 ~f>£th/ XiJu,~t.~ \rU*~tJm-*lr*f)0 y,-,.,,„, . »_,^r_. V?»77V L una / l ' y,.„, / /SW/t/.- &,/? ji..^.S?rr,**^<V-Y^ : ^ L ^ V > » i ^ A U-r A SO** ' / * • * £ * n , ^ . ^ ^ " » f c , y / ^ « £ r < U ^ ^ ^ t r " * ~ o / ..'/Skit <.^S^ : ,-r-Tf . 'frt^J>H^^Z+ •f**>-'^~*i*£>~'{**-j{ -***• « t -»T-*0^," r f S ? v n ~ J ^ 5 J " « T — * X^JCS •£&•&...— 2 ^ b '%••/'&/-2s-*£r*r>m^* -*^7^«V?« /i-yy,^^. *>_TW__-, ' V ^ ^U?J*i\^-J,.-Fig . 14. Ent ry No. 541 in P i t t s b u r g h Township R e g i s t e r D. 124 The only substantive annotation is located in the margin of the left hand page, directly below "N2 541." This is an annotation signed by the registrar attesting to the date and time of registration. As was the case for the marginal annotation in the 1822 register analyzed earlier, this attestation by the registrar serves to authenticate the regularity of the procedure followed in registering the deed. Also, while the authors of the transcribed deed remain Michael and James Macdonald, the author of the act of registration and of the register entry is the registrar, and his attestation in the marginal annotation confirms that the transcription of the deed conforms perfectly to his will. It may be recalled that, in the 1822 register, the registrar also signed the marginal annotation, even though he was not required to do so by statute. In 1865, statutory prescription finally caught up with what appears to have been common practice, and the signature of the registrar was from that point required.17 The registrar's signature here is thus in conformity with the requirements of the law. As an unabridged transcription, the intrinsic elements of the register entry remain consistent with those of the deed itself. Moreover, the transcription of the deed also includes two of the extrinsic characteristics of the deed, these being transcriptions of two of the annotations on the deed. The "Statutes of the Province of Canada, 1865, 29 Vict., c. 24, s. 54. 125 transcribed annotations are the receipt of payment related to the transfer of land, and the affidavit of H.G. Meagher confirming the execution of the duplicate deeds. With respect to the acts to which the register entry is related, the entry's function is the same as that of the 1822 register entry. The entry participates in the deliberation phase of the procedure governing the registration of the transfer of land, and the author and addressee of both the act of registration and the register entry are the registrar and the township of Pittsburgh, respectively. The entry also participates in the execution phase of the procedure governing the transfer of land as it provides notification to the world that the transfer referred to in the transcribed deed has taken place. The diplomatic description of the entry can thus be expressed as follows: 1873, April 1. Pittsburgh Township, Ontario. Registration of a deed in which Michael Macdonald and James Macdonald grant to John Doyle the south half of lot D in the township of Pittsburgh in the county of Frontenac, in consideration of the sum of eight thousand dollars, dated 1872, October 28. Kingston, Ontario. Unabridged transcription in Pittsburgh Township Register D, Entry No. 541, private, probative, original. 2 pages. On the basis of the foregoing analyses of the documents 126 which participated in the act of registering a deed, it is again possible to clarify the procedural context of each document by grouping them according to their role within the registration procedure. As was done for the study of the registration of a memorial, it will again be useful to structure this analysis around Duranti's six stages of a procedure. Initiative registered deed and duplicate deed (presented); Inquiry attestations of fact appended to duplicate deed; affidavit (made by a witness to the deed); Consultation no additional documentary residue; Deliberation entry of deed in register with marginal annotation signed by registrar; Deliberation Control relevant legislation (consulted); Execution certificate of registration (endorsed on registered deed and duplicate deed); entry in alphabetical index, and abstract index and register index. As was the case in the diplomatic study undertaken in the previous chapter, a comparison of this grouping of documents with the legislated requirements for registration as reflected in the procedural outline proposed in chapter one reveals a marked consistency between prescription and practice.18 As before, a diplomatic analyses of all the documents generated under the See above, pages 49-50. 127 registration procedure provides tangible confirmation of that procedure as revealed in the forms of the documents. Moreover, the fact that the information about the procedure deduced during this set of diplomatic analyses again conforms to that which was already known about the procedure from the legislation serves to demonstrate the validity of the results of the analyses. This concludes the diplomatic study of the registration of a deed. 128 CONCLUSIONS The two diplomatic studies of documents generated under the Ontario land registry system constitute a test of the relevance and applicability of the methodology of diplomatic analysis in a modern North American administrative context. As stated in the introduction, the approach to the analysis undertaken here involved a consideration of both the historical origins of diplomatics and the unique nature of modern documents. Given that studies in special diplomatics have traditionally focused on single medieval documents, and that the purpose of these studies has typically been to determine the authenticity of the analyzed documents, it was recognized that the traditional application of diplomatics is of limited relevance to modern documents. Moreover, the fact that a single modern document tends to embody only a fragment of an administrative transaction while a single medieval document typically embodies an entire transaction suggests that a diplomatic analysis of the single modern document will be far less conclusive than a diplomatic analysis of the single medieval document. In order to apply the methodology of diplomatic analysis to modern documents, it was therefore proposed that the focus of the two studies undertaken in this thesis should be an entire activity or transaction rather than a single document, and that the studies should comprise a sequence of diplomatic analyses of all the documents which participated in 129 that activity or transaction. The focus of enquiry of the studies undertaken here was thus the transaction involving the registration of a deed under the Ontario land registry system, and the studies themselves were comprised of a sequence of separate diplomatic analyses of all the documents which participated in the procedure governing the registration transaction. In order to assess the viability of this approach to the application of diplomatics to modern documents, it will be useful to structure the discussion around two basic questions. First, was the application of the diplomatic methodology to an entire transaction possible? And secondly, was the resultant analysis of any practical value? In assessing the latter, it will also be necessary to consider the extent to which Canadian archivists will realistically be able to employ the diplomatic methodology in the conduct of their daily work. The first question can be answered clearly in the affirmative. The two studies demonstrate that where the procedure governing a transaction is known or knowable, all the documents which participated in that procedure can be identified and then analyzed. While in this case the procedure governing the registration of a deed was not officially outlined in a systematic fashion, an examination of the legislation governing the registry system revealed the legal requirements for 130 registration which could then be arranged into a logical sequence of activities comprising a single coherent procedure. This procedural outline was then used to provide a structural framework for the two studies, and the diplomatic analyses of all the documents which participated in that procedure fell naturally into place within that framework. In situations where the procedure governing a transaction is not known or knowable, the question of whether the application of the diplomatic methodology to an entire transaction is possible becomes somewhat more problematic. However, this dilemma serves in fact to highlight what may be one of the most vital uses of diplomatics in a modern context. As demonstrated in the two studies, the information deduced during a diplomatic analysis of a document serves to clarify the nature of that document with respect to its procedural context and with respect to the persons involved in both the creation of the document and the transaction in which the document participated. On the basis of this information, the overall procedure governing the transaction can then gradually be understood. For the two studies undertaken here, this information was used only to confirm a procedure which was already known and thus also to validate the results of the analyses. However, in cases where the procedure is not known, this information can be used to reconstruct the procedure and thus also to identify other documents which participated in that procedure. While this reconstruction and identification process will be a gradual one which proceeds only as the sequence of diplomatic analyses itself unfolds, the approach is nonetheless identical to the one employed in this thesis and the results should be no less valid. The second question concerning the practical value of the analysis can be answered less precisely. To some extent, the usefulness of the information deduced during a diplomatic analysis will depend upon what is already known about the documents and the procedure being studied. In the case of the two studies undertaken in this thesis, the analyses served to reveal new information about the documents and the procedure, to confirm information which was already known, and to reveal discrepancies between that which was supposed to have happened and that which in fact did happen. In the first place, the analyses revealed the presence of additional "documents within documents" which participated in their own right within the registration procedure, and these documents were then identified and described according to the terminology of diplomatics. Secondly, the analyses confirmed where the process of registration was conducted in accordance with legislated requirements and also revealed where these legislated requirements were not adhered to. In this regard, it was shown that in most respects the registration transaction was carried out as prescribed. However, in the case of the registration of the 1822 memorial, some discrepancies between prescription and 132 practice were revealed which demonstrated that weaknesses in the registration procedure were already recognized in 1822, even though the procedure itself was not modified until much later. All of this information served to clarify the nature of the documents being analyzed, the nature of the interrelationships among these documents, and the nature of the procedure itself. With respect to the basic archival functions of arrangement, description and appraisal, the practical value of this information is readily apparent. The capacity of diplomatics to clarify the interrelationships among documents is an invaluable tool for arrangement, and the terminological rigour imposed by diplomatics provides a precise and consistent vocabulary for description. Yet, the most useful aspect of diplomatics with respect to modern documents may be its capacity to determine the procedural context of documents and to identify discrepancies between prescribed procedure and actual practice. Clearly, in situations where the original order of a set of documents has been lost, or where the provenance of the documents is unknown, a diplomatic analysis of the various types of documents which present themselves will reveal information about the procedural context of the documents, the transactions in which they participated, and the persons involved in their creation which will assist in placing the documents once more within their proper administrative context. This type of contextual information is critical in assessing the value of the documents 133 for the purpose of appraisal, as well as in making informed decisions concerning the documents' subsequent arrangement and description. Having thus concluded that the application of the methodology of diplomatic analysis to an entire transaction is possible, and that the resultant analysis is indeed of practical value, it remains to be considered whether Canadian archivists will reasonably be able to employ the diplomatic methodology in the conduct of their daily work. Given the competing demands on archivists' time, it might be suggested that Canadian archivists will not be able to engage in such an involved and time-consuming endeavour. In order to address this issue, it must first be recognized that the two studies undertaken in this thesis are characterized by a high degree of formality. An extremely literal application of the diplomatic methodology was necessary for the purpose of this thesis in order to demonstrate whether or not the methodology could usefully be applied to modern documents. In order to conduct this test, it was important to apply the methodology in a manner that was both consistent and highly structured. However, having thus demonstrated the value and applicability of the methodology, it can now be suggested that such a high degree of formality may not always be necessary. 134 In regard to levels of formality, one of England's foremost diplomatists, Christopher Brooke, writes, The formal exposition of the elements of a document, studied like a grammatical exercise, represents an extreme in the study and teaching of diplomatic with which I have little sympathy.i For Brooke, the literal or "grammatical" approach to the application of diplomatics is not meaningful unless it is directed toward a specific end or related to the resolution of some historical or administrative issue. In other words, the principles of diplomatics may be used, not just as they were here as the basis for the full-scale application of the formal diplomatic methodology, but as a tool with which to resolve specific archival and historical questions. The many published English studies in special diplomatics cited in this study provide useful examples of how the diplomatic methodology can be both formally and informally employed in order to resolve very specific problems.2 Yet, more importantly, these studies also demonstrate how English archivists have selectively drawn on a variety of disciplines, including history, archival science, diplomatics and palaeography, in order to arrive at as comprehensive an understanding as possible of the true nature of a document. The conscious application of each of these disciplines is of course not required in order to resolve every 'Brooke, "The Teaching of Diplomatic," 2. 2See above, page 8, note 11. 135 archival or historical problem, as clearly familiar documentary forms and familiar scripts will not need to be subjected to the same diplomatic and palaeographic scrutiny as their unfamiliar counterparts. Nonetheless, an awareness of each of these disciplines and an ability to apply selected principles from each undoubtedly influences the mind-set of English archivists as they carry out all the archival functions. For Canadian archivists, the situation is much the same. The familiarity of the forms of most modern documents renders a formal diplomatic analysis of these forms unnecessary, just as a familiarity with modern scripts would render a formal palaeographic analysis of the scripts unnecessary. Yet, the fact that most contemporary documentary forms and scripts are easily recognized and understood does not mean that an understanding of how forms and scripts may be analyzed is not valuable. On the contrary, as shown above, situations arise where the procedural context of modern documents is not fully known, or where discrepancies exist between prescribed procedure and actual practice which give rise to a variety of archival and historical problems. In these cases, the application of the diplomatic methodology, whether formally or in an informal and selective manner, can reveal information about the circumstances of the documents' creation which may be critical to the documents' archival control. In any event, regardless of how the principles are applied, their presence among the tools at the archivist's 136 disposal will to a large extent determine how the archivist approaches these problems and thus also how they are resolved. It is concluded, therefore, that the principles of diplomatics are very much relevant to an understanding of modern documents, and that the methodology of diplomatic analysis can in many instances be of great assistance to Canadian archivists. In fact, it is not the value of diplomatic principles which should be questioned, but rather the level of formality with which these principles are applied. While Canadian archivists may not be called upon to demonstrate the authenticity of medieval charters and deeds as many of their European counter-parts still are, their need for diplomatics is nonetheless the same: to reveal, through an analysis of a document's forms, the circumstances of the document's creation in order to achieve a greater understanding of the document's nature. It is in this regard that diplomatics has the greatest capacity to assist Canadian archivists in facilitating the management of modern North American archives. 137 SELECTED BIBLIOGRAPHY A. DIPLOMATICS Boyle, Leonard E. "Diplomatics." In Medieval Studies: An Introduction. 2nd ed., edited by James M. Powell. Syracuse, N.Y.: Syracuse University Press, 1992. Brooke, Christopher N.L. "Approaches to Medieval Forgery." Journal of the Society of Archivists 3 (1965-69): 377-86. . "The Teaching of Diplomatic." Journal of the Society of Archivists 4 (1970): 1-9. De Bouard, Alain. Manuel de Diplomatique Francaise et Pontificale. Vol. 1. Paris: Editions Auguste Picard, 1929. Duranti, Luciana. "Diplomatics: New Uses for an Old Science (Part I).11 Archivaria 28 (Summer 1989): 7-27. . "Diplomatics: New Uses for an Old Science (Part II)." Archivaria 29 (Winter 1989-90): 4-17. . "Diplomatics: New Uses for an Old Science (Part III)." Archivaria 30 (Summer 1990): 4-20. . "Diplomatics: New Uses for an Old Science (Part IV)." Archivaria 31 (Winter 1990-91): 10-25. . "Diplomatics: New Uses for an Old Science (Part V ) . " Archivaria 32 (Summer 1991): 6-24. . "Diplomatics: New Uses for an Old Science (Part VI)." Archivaria 33 (Winter 1991-92): 6-24. Encyclopedia Britannica. 11th ed. Cambridge: Cambridge University Press, 1910. S.v. "Diplomatic," by Sir Edward Maunde Thompson. Giry, A. Manuel de Diplomatique. Paris: Hachette, 1894. Hall, Hubert. Studies in English Official Historical Documents. 1908; reprint, New York: Burt Franklin, 1969. 138 Jenkinson, Sir Hilary. "Archives and the Science and Study of Diplomatic." Journal of the Society of Archivists 1 (October 1958): 207-210. MacNeil, Heather. "Weaving Provenancial and Documentary Relations." Archivaria 34 (Summer 1992): 192-98. Naud, Gerard, and Christiane Naud. "1/Analyse des archives administratives contemporaines." Gazette des archives 115 (4e trimestre 1981): 216-45. New Encyclopedia Britannica. 15th ed. Chicago: University of Chicago Press, 1988. S.v. "Diplomatics," by Peter Herde. Sigmond, J. Peter. "Form, Function and Archival Value." Archivaria 33 (Winter 1991-92): 141-47. Skemer, Don C. "Diplomatics and Archives." American Archivist 52 (Summer 1989): 376-82. Turner, Janet. "Experimenting With New Tools: Special Diplomatics and the Study of Authority in the United Church of Canada." Archivaria 30 (Summer 1990): 91-103. B. THE ONTARIO LAND REGISTRY SYSTEM: LEGISLATION Canada (Province of). Statutes of the Province of Canada, 1846. 9 Vict., c. 34. Statutes of the Province of Canada. 1850. 13 & 14 Vict., c. 63. Statutes of the Province of Canada. 1853 16 Vict., c. 187 Statutes of the Province of Canada. 1855, 18 Vict., c. 127 Statutes of the Province of Canada. 1865, 29 Vict., c. 24. . Consolidated Statutes of Upper Canada. 1859. 22 Vict., c. 91. Ontario. Statutes of Ontario. 1868. 31 Vict., c. 20. . Statutes of Ontario. 1929. 19 Geo. 5, c. 41. Statutes of Ontario. 1984. C. 31. 139 Revised Statutes of Ontario. 1990. C. R.20. Upper Canada (Province of). Statutes of Upper Canada. 1795. 35 Geo. 3, c. 5. . Statutes of Upper Canada. 1797. 37 Geo. 3, c. 8. . Statutes of Upper Canada. 1818. 58 Geo. 3, c. 8. . Statutes of Upper Canada. 1834. 4 Will. 4, c. 1. C. THE ONTARIO LAND REGISTRY SYSTEM: SECONDARY SOURCES Armour, Edward Douglas. A Treatise on the Investigation of Titles to Real Estate in Ontario. 4th ed. Toronto: Canada Law Books Co., 1925. DiCastri, Victor. The Registration of Title to Land. Vol. 1. Toronto: Carswell, 1987. . Thorn's Canadian Torrens System. 2nd ed. Calgary: Burroughs & Co., 1962. Dowson, Sir Ernest, and V.L.O. Sheppard. Land Registration. 2nd ed. Colonial Office Research Publications, no. 13. London: Her Majesty's Stationery Office, 1956. Craig, Gerald M. Upper Canada: The Formative Years 1784-1841. Toronto: McClelland St Stewart Ltd., 1963. Cruikshank, E.A., ed. The Correspondence of Lieutenant-Governor John Graves Simcoe. Vol. 4 (1795-96). Toronto: Ontario Historical Society, 1926. Glasgow, G.H.H. "The Deed Registries of England and Wales." Solicitor Quarterly 4 (1965): 21-37. Globe, Janet. Title Searching in Ontario: A Procedural Guide. Toronto: Butterworths, 1980. Holdsworth, W.S. The History of English Law. London: Methuen, 1966. Hunter, W.H. The Dominion Conveyancer. 3rd ed. Toronto: Carswell Company, 1913. Mallon, J.W. Requirements for Registration Being a Guide to the Preparation of Deeds and Other Instuments for 140 Registration in Ontario. Toronto: Carswell Company, 1941. Magwood, W. Marsh. "The Systems of Land Registration and Guarantees of Title in the Province of Ontario." University of Toronto Lav Journal 13 (1959): 93-106. Neave, Marcia. "Conveyancing Under the Ontario Registry Act: An Analysis of the Priority Provisions and Some Suggestions for Reform." Canadian Bar Reviev 55 (1977): 500-548. Riddell, William Renvick. The Life of John Graves Simcoe, First Lieutenant-Governor of the Province of Upper Canada. 1792-96. Toronto: McClelland & Stevart Ltd., 1926. Risk, R.C.B. "The Records of Title to Land: A Plea for Reform." University of Toronto Lav Journal 21 (1971): 465-97. Sheppard, Francis, and Victor Belcher. "The Deeds Registries of Yorkshire and Middlesex." Journal of the Society of Archivists 6 (April 1980): 274-86. Simpson, S. Rowton. Land Law and Registration. Cambridge: Cambridge University Press, 197 6. Spragge, Shirley C. "The History of the Land Record Copy Books." In Land Records in Ontario Registry Offices, ed. A. David McFall and Jean McFall, 11-12. Toronto: Ontario Genealogical Society, 1982. Tate, W.E. "The Five English District Statutory Registries of Deeds." Bulletin of the Institute of Historical Research 20 (1947): 97-105. Taylor, T.W. The Investigation of Titles to Estates in Fee Simple. 2nd ed. Toronto: Willing & Williamson, 1873. Upper Canada Lav Journal. February 1866; March 1866. Widdis, R.W. "Tracing Property Ownership in Nineteenth-century Ontario: A Guide to the Archival Sources." Canadian Papers in Rural History 2 (1980): 83-102. Youdan, T.G. "The Length of a Title Search in Ontario." Canadian Bar Review 64 (1986): 507-33. 

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