<Preliminary introduction>

The HOLLIS cataloguing may be found here. The following items are worth repeating:

“Description: 178 leaves ; 21 cm.

The cataloguing in Baker’s English Legal Manuscripts, 1, no. 98 reads as follows:

“REGISTRUM BREVIUM

“MS. 166.

“C.xiv, 178ff., early C.xvi binding with arms of Henry VIII impaling Katharine of Aragon (d. 1536). The first writ is for land in Nottinghamshire.

“‘Charles H. Read’ (C.xix); ‘Augustus W. Franks from W. Greenwell’, i.e. Augustus Wollaston Franks (later knight, d. 1897); sold at S. 24 July 1939, no. 196, to Blades; put up again, S. 20 Dec. 1939, no. 607; bought from Sweet & Maxwell, and received on 6 May 1941.

“New Gallery, Regent Street, London, Exhibition of the Royal House of Tudor (1890), 266, no. 1370 (when in possession of Mr A.W. Franks).”

Neither Baker’s count of the folios nor that in HOLLIS seems to correspond to what is actually there; our count puts the total at 201. (Baker and HOLLIS may have relied on the medieval foliation, which, as we will see below, is unreliable.) We will also express below some doubts about the binding. We may have found an addition to Baker’s provenance; on fol. 146v there is note: ‘George Griffith 5th September 1822’.

The manuscript is approximately 210 X 145 mm.

The somewhat informal script is consistent and legible, with a second, almost certainly later, script providing additions and re-inking in a darker color. There is no reason to doubt that that the basic script dates from the 14th century. The ascenders on some of the pages rise into the upper margin, perhaps suggesting a date earlier in the 14th century rather than later. There seems to be more than one hand at work using the basic script. The darker script is harder to date, but we would incline to date it in the 15th century, though probably fairly early in that century. There may also be more than one hand at work in the darker script, but the uniformity of the color of ink suggests not. Fol. 177v is written in a hand that is not either of these and probably dates from the last quarter of the 14th century. Fol. 178r–179v are written in a cursive script that probably dates from early in the 16th century.

Paragraph marks and dividers are drawn in red. There are a number of decorated initial capitals, in red and blue, but no illuminations. The quality of this decoration is not particularly high. We have found three informal drawings, all of which seem to suggest that the artist was distancing himself from the contents of the manuscript (listed in the Detailed Contents). We have found one possible grotesque.

The decorated leather binding is in remarkably good condition considering its probable age. Baker saw the arms of Henry VIII impaled with those of Katherine of Aragon on it. They are not visible on the images, but we have no reason to doubt that they are there. They allows us to date the binding with some precision. It is highly unlikely that it antedates Henry and Katherine’s marriage in 1509 or postdates their divorce in 1533. The metal clasps that hold the foredge together look as if they have been repaired or replaced at some more recent time. That there are bifolia of modern freestanding endpapers both front back and that the pastedowns are also modern suggest that the manuscript was rebound in these covers, perhaps on the occasion of its display in the ‘Exhibition of the Royal House of Tudor’ in 1890.

One folio (fol. 22) is torn and stitched with coarse thread; the text is still legible. A quire would seem to be missing after our fol. 153.

Medieval foliation accompanies the headers in a different hand from the main text. It appears on both recto and verso, and begins on our fol. 5r with ‘ij’. It follows consistently three numbers lower than our foliation until medieval fol. 139, which is repeated. It jumps ahead by eight where the quire is missing. We have refoliated the manuscript digitally, including the three medieval folios at the beginning and carrying on beyond the medieval foliation to include the last three quires, but omitting the endpapers in the front and back.

Unusually, medieval signatures marks are found on the final pages of the quires. Modern ones, which probably date from the rebinding, occur on their first pages, with a few on the first four pages.

The missing quire is indicated by the fact that the medieval quiring skips from xviij to xx, by the fact that fol. 154 begins in mid-sentence, and, perhaps, by the fact that there is a scribble in a hand of uncertain date at the bottom of fol. 153v that looks like ‘OWL’ but may be a very badly formed ‘quire’. The medieval foliation tells a similar story. Our fol. 153 is numbered ‘cxlix’ on both recto and verso; fol. 154 is numbered ‘clviij’. What might be missing from the contents is discussed below.

Quiring/collation (omitting the modern endpapers):

1³ (f. 1–3), 2–8⁸ (f. 4–59), 9¹² (f. 60–71), 10–13⁸ (f. 72–103), 14⁶ (f. 104–109), 15–16⁸ (f. 110–125), 17⁶ (f. 126–135), 18⁸ (f. 136–143), 19¹⁰ (f. 144–153), 20–25⁸ (f. 154–201).

Lacking a date in the initial writ of right patent, setting a date for the manuscript is, to some extent, speculative. The script is consistent with a date in the mid-14th century and no king is mentioned other than an Edward. The style of the ascenders on the top line of some of the pages suggests the style of the 13th century, but that style is by no means confined to the 13th century, particularly, it would seem, when the scribe is seeking to be somewhat retardataire. The clearest clues that we have so far found as to a date are on fol. 4r, the first page of register. In the writ to the bailiffs of the queen, she is named as ‘Phe’, almost certainly Philippa of Hainaut, who was queen of England from 1330 until her death in 1369. Further down the page is a writ addressed to the bailiffs of the earl of Lancaster, which is marked ‘quando dominus fuit extra regnum’. The earl is almost certainly Henry of Grosmont, who went on a number of missions both diplomatic and military for Edward III, in the 1330s and 1340s. He was made duke of Lancaster in 1351, so the writ almost certainly dates from before that time. That does not necessarily mean that the register was written before that time, but it makes it likely enough to suggest a terminus ante quem of 1351.

The terminus post quem is easier. The initial writ of right patent styles the king as ‘rex Francie’. Edward III adopted this style in January of 1340 and used it until 1360. His style is given 28 times throughout the manuscript, and it always includes ‘rex Francie’. In only one of these is the attestation clause not completed cut off with an ‘etc’. On fol. 165v, the writ is tested at ‘Merton 28 etc’. We have not yet been able to find any time in the relevant years when the Chancery was dating royal documents at Merton, much less on the 28th day of any month.¹ Hence, our tentative bracketing dates for the manuscript are 1340 X 1351.

1. The only time during the relevant years when Edward III was at Merton was from 1–6 Jan., 1349. W. M. Ormrod, Edward III at 622. The Chancery, however, does not seem to have dated any documents there, and, of course, 1–6 does not include 28. More plausible is 28 July 1341. The king was at Langley, but the wardrobe was at Merton. C. Shenton, Itinerary of Edward III and his Household 223. The Chancery, however, was dating documents that day at Havering atte Bower, where the Privy Seal was. It is possible that the clerk of this writ got mixed up.

The first three folios contain a list of contents of the register. Fol. 1r through fol. 3r tracks the contents of the register almost exactly, using the medieval foliation described above. On fol. 3v the list is somewhat less precise, reflecting, probably, the fact that there are fewer headers from our fol. 150 forward. The list stops with fol. 180 (our fol. 176), the last folio that is numbered in the medieval foliation.

Although the list from our fol. 150 forward is somewhat less precise and not complete, everything that is found in the list corresponds to something that is in the register, normally on the folios given in the list or within the range of folios given in the list. We can thus with some confidence reconstruct the contents of the missing quire from the contents list, the folio numbers being the medieval folios of the now missing folios between our fol. 153 and 154:

The last item is not quite right. Our fol. 154 (medieval fol. 158) does contain writs of formedon, but ‘Supersedeas de trans’ does not appear until our fol. 155r. The remaining entries in the list do, however, track the medieval foliation except that ‘De proteccionibus’, which is supposed to begin on medieval fol. 168 does not, in fact, begin until fol. 169. These errors could mean that a folio got inserted, but since all the rest of the entries do track, they are probably just errors.

The end of the manuscript poses some puzzles. The medieval fol. 180 is on our fol. 176r which contains a ‘Carta pacis in Hibernia’, which the indexer probably thought of as belonging in his category ‘De cartis perdonacions’. Fol. 176v is also foliated with the medieval fol. 180 and contains in the later script a case of idempnitate nominis, which can be included in the category of carte perdonacionis only by considerable stretch of that term. It also contains in the same script, and probably hand, an extract from a sample writ of trespass that does not fit the category at all. The blank space at the bottom of the page has an informal drawing of a dog and human profile. Here, the medieval foliation ends.

Fol. 177r contains a copy of the last page of the contents (fol. 3v), or, perhaps, fol. 3v is a copy of this page. Fol. 177v contains a copy of a justicies writ of debt issued in the name of King Richard [II] on 10 May of his first year (1378). The hand is not one that have seen before and would seem to be roughly contemporary with the date of the writ. The writ seems to have been written over text that was rubbed out.

Fol. 178r begins the third-to-last full quire in the manuscript. A cursive hand probably dating from early in the 16th century transcribes an audita querela to the sheriffs of London ‘ubi quis ?renditur [?retinetur] in statuto stapule infra etatem’. The obligation was apparently entered into on 13 August in year 21 of the king’s reign. Assuming, as seems likely on the basis of the script, that the king is Henry VIII, this would be 1529. The writ runs over to fol. 179v. The rest of this quire, the next quire, and first two folios of the last quire are headed with majuscules running from A to R. The rectos contain occasional names of writs written in gothic script that could be contemporary with the majuscules, which are clearly from the 16th century. The hand of the script is definitely not that of the writer of the 15th-century material in the main register. Other than that these folios are basically blank with an occasional drawing, pen trials, or, quite mysteriously, what seems to be a third of a page of code on fol. 200v.

The names of the writs on the final quires follow:

If we are willing to accept that what could be ‘io’ is really arabic‘10’, then what we are looking at here is relatively clear. It is the beginning of an alphabetical index of the writs such as that in HLS MS 26. The writ of right is on manuscript fol. 1. Manuscript fol. 10 contains a pone and a recordari in a writ of right. There is no Accedas ad curiam in the writ headers on manuscript fol. 10 but one of the regulae deals with it.

In summary, this is basically a large register dating from the second quarter of the 14th century. Probably in the 15th century, it fell into the hands of an owner who added or had added quite a few additional writs, with, it would seem, a particular focus on trespass. That owner is probably also responsible for some notes, some improvements in the descriptions of the writs, and the list of contents. Why he duplicated the last page of the contents at the beginning and end of manuscript, is a puzzle. Perhaps he started at the end, and then decided to do something more ambitious at the beginning. A 16th-century owner added the final three quires, putting in a long writ that interested him at the beginning. He probably intended to index the contents of the register. We can see the beginnings of a scheme, but the scheme was never executed. If we have the date right, he may not have continued because the printed register that first appeared in 1531 has a similar table at the beginning.

Everything that we know about our three owners would point to some kind of legal professional, a serjeant, an attorney, or a clerk. The basic script of the manuscript is work-a-day; the decoration is routine. The basic register is large, just the kind of thing that a lawyer or a clerk would want. Its contents are described in some detail in the conclusion to the Analysis of Writs. The 15th-century additions are technical and detailed. What the 16th-century owner planned is what a 16th-century lawyer or aspiring lawyer might plan to do with this manuscript. There is nothing about this manuscript that would connect it with royalty other than the binding. Indeed, at the very time when the binding seems to have been created, the manuscript seems to have belonged to a lawyer, who was planning additions. That, in turn, might lead one to think that the binding was supplied from another manuscript or that it is a forgery.

The Preliminary Analysis of Writs below contains rough transcriptions of the names of the writs found in the margins of the regiser. The conclusion to that table compares the structure and contents this register with those found in HLS MS 28 and Hall’s register ‘R’, both of which date from about a generation earlier than our register.

No heading found

As indicated in the Introduction, the contents of this register almost certainly date from the second quarter of the 14th century, probably between 1340 and 1351, with additions that were probably made fairly early in the 15th century. The scribe of the original text omitted the marginalia from a number of the writs, although there are almost always marginal red or blue paragraph marks indicating where a new writ or entry begins. The 15th-century hand has filled in a number of them, but others remain just paragraph marks. We have indicated in our analysis what the 15th-century hand wrote by putting it in square brackets. Where there is just a paragraph mark that is indicated by ‘paragraph mark only’ in diamond brackets.

The following table gives the names of the writs as found in the marginalia and counts them. Two counts of the writs are given in the right-hand columns. The first counts all the writs for which there are marginal notes, excluding, however, the notes that are labelled ‘Regula’ or ‘Nota’. The second excludes from the total all the writs where the marginal note includes the words ‘eodem’ or ‘aliter’.

The totals are large: 1271 in the long count, 867 in the short one. If we wish, we can add to that the 11 writs that were probably on the missing quire. (See the Introduction.) If we do that, however, then we probably should try to exclude the writs that were added, probably early in the 15th century. There would seem to be 13 of these included in the count, to which we should add the 16th-century addition on fol. 178r–179v. Whether we take the number from the table or that derived from the inclusions and exclusions, 1268 or 864, we are clearly in the right ball park for statistical purposes.

The total is quite a bit larger than Hall’s register ‘R’. Using the first of the two numbers, which gives a total close to the way in which Hall counted the writs in ‘R’, we have 1271 or 1268, as opposed to Hall’s 886. Our register was probably compiled 25 or 30 years after Hall’s ‘R’. The intervening years seem to have made a difference in the size.

HLS MS 28 is roughly contemporary with Hall’s ‘R’. It has approximately the same number of writs (941 vs. 886). In the conclusion to the analysis of the writs in MS 28, we compared its structure with that of ‘R’. They were similar, though not quite the same. The same can be said of this register, when compared with the other two, but the differences seem to greater.

The contents of all three registers can be mapped onto a group of large categories with approximate proportions of the coverage: Right (10%), Ecclesiastical (13%), Waste (3%), Replevin (4%), Criminal (0%), Trespass (10%), Account (2%), Rights in land (3%), Debt (4%), Warranty of charter (1%), Annuity, Mesne (1%), Covenant (3%), Dower (1%), Wardship (2%), Escheat (1%), Local courts (2%), Writs on statutes (5%), Novel disseisin (12%), Mort d’ancestor (3%), Ejectment (0%), Entry (4%), Formedon (1%), Ad quod dampnum (4%), Protections (5%), Pardons (1%), Miscellaneous (2%). (Proportions that are zero percent are less than half a percent.) Broadly speaking, the proportions track those of MS 28 at the beginning (MS 28: Right [11%], Ecclesiastical [14%], Waste [3%]). That means, of course, that there are considerably more writs in each category so that MS 166 could have equivalent proportions in a much larger register. The proportions then fall below those of MS 28 for the remaining categories that are found in both manuscripts, so that MS 161 can devote 10% of its contents to categories after formedon: Ad quod dampnum, Protections, and Pardons, categories that do not exist as categories in MS 28. A detailed comparison that includes Hall’s ‘R’ follows:

Like MS 28 and Hall’s ‘R’, our register begins with the writ of right with its variants and subprocedures (fol. 4r–21r; MS 28 fol. 61r–69r; R1–R75). It is, however, considerably larger (18 folios vs. 9 in MS 28; 128 writs vs. 75 in ‘R’). The headers divide it into numerous subcategories.

All three registers then have a broad section dealing with ecclesiastical writs without regard to the type of writ (right of advowson, darein presentement, quare impedit, prohibition, consultation, de excommunicato capiendo) (fol. 22r–45r; fol. 69v–80v in MS 28; R76–R161). This section is also considerably larger than it is in the other two (25 folios vs. 12 in MS 28; 143 writs vs. 63 in ‘R’). The headers divide it into three large subcategories: De advocacionibus, Prohibicio, Consultacio, before descending into basically folio-by-folio detail.

Waste follows in all three registers. In none of them is it very large, but it is larger in ours than it is in the others (fol. 45v–49r; fol. 80v–82r in MS 28; R162–R180) (5 folios vs. 1.5 in MS 28; 39 writs vs. 9 in ‘R’).

Replevin follows in all three registers (fol. 50r–56r; fol. 82v–88v in MS 28; R181–R243). Here, if anything, our register appears a bit shorter (7 folios vs. 8 in MS 28; 52 writs vs. 63 in ‘R’). The differences are almost certainly not statistically significant, but they probably indicate that the maker of our register was not interested in expanding the examples of replevin writs as he had in the preceding categories.

As in MS 28 and ‘R’, our register includes a brief section that we called ‘rights of lordship’ in the other two (de nativis habendis and de libertate probanda, but including aid, tallage, and scutage) (fol. 56v–57r; fol. 89r–90r in MS 28; R244–R252). The headers in our register focus on the first two. The scope of this section in all three registers is approximately the same (2 folios vs. 1.5 in MS 28; 9 writs vs. 9 in ‘R’).

Unlike MS 28 but like ‘R’, our section dealing, broadly speaking, with trespass and crime begins with the writ de minis. As in all three registers, civil trespass precedes anything that we might call criminal (de conspiracione, de odio et athia). None of the registers devotes much space to the criminal. Unlike the other two, ours briefly returns to civil trespass after it deals with the criminal. Comparison of the coverage is best made by considering the whole broad section (fol. 58r–77v; fol. 90v–102r in MS 28; R257–R411). Once more, our register is fuller than MS 28 (20.5 folios vs. 13 in MS 28), but not much more than ‘R’ (180 writs vs. 155 in ‘R’).

Account follows as a separate category in our register, whereas it is mixed in with writs concerning rights in land in both MS 28 and ‘R’, both of which are very skimpy on the topic. The better part of one page (fol. 81r) is devoted to Quod nullus placiteur sine bevi Regis de libero tenemento. This has no parallel in the other two registers. There follows a section that deals with rights in land, including de racionalibus divisis (fol. 81v–85v), but not mesne, which is treated after debt (fol. 96r–96v). Comparison with the other two registers can only be approximate because these topics are all jumbled up in those registers, but broadly speaking these topics are found in fol. 103r–107r in MS 28, R412–R475 in ‘R’, a total of 5.5 folios in MS 28 and 64 writs in ‘R’. The corresponding numbers in our register are 8 (fol. 78r–80v, 81r–85v, 96r–96v) and 59, approximately the same numbers but somewhat better organized.

Both MS 28 and ‘R’ have reasonably coherent sections that treat with debt, detinue, and convent, the latter leading to de fine facto (fol. 107v–114r in MS 28; R478–R555). Our register treats with those topics in that order but it intersperses between debt and covenant warranty of charter, annuity, customs and services, and mesne, and devotes more space to the making and enforcement of fines. The result is considerably longer than the other two registers (16.5 folios vs. 7.5 in MS 28; 146 writs vs. 78 in ‘R’).

Like MS 28 and unlike ‘R’, our register next considers dower (fol. 101v–102r). Like ‘R’, and unlike MS 28, it then moves to wardship and succession (fol. 102v–107r). Writs about making attorney in local courts follow, as they do in ‘R’ (fol. 107v–110v), preceded, as they are not in ‘R’, with some sample forms for making an attorney that are not writs. ‘R’ considers wardship and succession before dower. Otherwise, our register follows the order of ‘R’. MS 28 has making attorney is jammed in between dower and wardship. The totals for the three groups are 7 folios in MS 28 (fol. 114v–122r), 65 writs in ‘R’ (R556–R620), and 10 folios and 90 writs in our register.

Our register then has a section that has no equivalent in either MS 28 or ‘R’, although the section in MS 28 on those who do not have to appear at assizes (fol. 122v–124r) and the somewhat broader parallel section in ‘R’ (R614–R633) anticipate it. The headers in our register eventually settle on a general name for this section, ‘brevia de statuto’, but before it gets there it is specific: Ne fiant plures secte pro una hereditate, De contribucione facienda, Quod ille qui habet eius partem faciat sectam, Quod barones (or in patria non commorantes, or homines de antiquo dominico, or coronatores) non ponantur in assisis, De trans’, De coronatore eligendo, Quod marescalli et senescallus non teneant placitum de libero tenemento, De estrepamento, De manutencione. Those who do not have appear at assizes are there, but the section is much broader. Not all of them cite statutory authority, but some of them do; we are aware of statutory authority for others. For example, the writ de manutencione could well have been thought to have been authorized by one, or some combination of, the statutes of Edward I cited in J. Rose, Maintenance in Medieval England (Cambridge: CUP, 2017), 30. We rather suspect that statutes or ordinances could be found to support all of them, but some of them may have their origins in royal writs for particular people that were then generalized. The result, once more is a longer section than that found in MS 28 or ‘R’ (6 folios vs. 1.5 in MS 28; 31 writs vs. 20 in ‘R’).

Novel disseisin and mort d’ancestor (fol. 121r–147v), their spinoffs and related writs have, of course, their parallels in MS 28 (fol. 125v–135r) and ‘R’ (R645–R766). Once more they are longer in our register (27.5 folios vs. 11 in MS 28; 178 writs vs. 122 in ‘R’). The same cannot be said of entry and formedon (fol. 148r–157r; fol. 135r–148r in MS 28; R767–R874). This section is longer in MS 28 and much longer in ‘R’ (5.5 folios vs. 14 in MS 28; 35 writs vs. 107 in ‘R’). We should recall that our manuscript is lacking eight folios in this section, and we know that there were 11 separate headings in this section. It is highly unlikely, however, that it was as extensive on this topic as is ‘R’, and it may not have been as extensive as it is in MS 28.

There is very little in MS 28 after formedon. Both our register and ‘R’ contain ‘administrative’ sections after formedon (fol. 158r–176r; R875–R886), which the headers in our manuscript divide between ‘Si sit ad dampnum’ and ‘Proteccio’. The same type of material is found in ‘R’, but there is much less of it (84 writs vs. 12 in ‘R’).

Our register is clearly of the same type as MS 28 and ‘R’. It is somewhat better organized, and except for entry and formedon it contains a considerable amount more material. In terms of the organizational ideas that seem to underlie it, we might point to ‘brevia de statuto’. The idea, but not the term, may be there in ‘R’, and this is not the first time that we have found that category so defined. HLS MS 52, which we dated with some hesitancy in 1307, has ‘brevia de statutis’. HLS MS 60, dating from approximately 1327, has ‘de statutis’. In both those cases it applies to a group of writs, probably thought to have been derived from Westminster II, c. 38, about those who are not to be placed on assizes. In MS 166 it is applied to other statutes (e.g., De adnullando recogniciones per vim et duriciam factas, which would seem to be based in 1 Edw. 3, c. 3, or Quod vicecomes ponat inquis’ magis propinquos et magis sufficientes, which would seem to be based on Articuli super cartas, 28 Edw. 1, c. 9, but it could be based on an interpretation of Westminster II, c. 38). It has not yet been expanded in the headings to all that it might include, although such writs, including those not to be placed on assizes, are right before it, a fact that suggests that the category was already recognized by those who compiled the register. The other thing that we might point to is the expansion of the category of what seem to be largely ‘administrative’ writs following formedon. This category will expand considerably as the century goes on.