<Preliminary introduction>

The HOLLIS cataloguing may be found here. That cataloguing is fuller than most, and parts of it are worth repeating here:

“Description: 341 leaves : vellum ; 23 cm.

“Summary: Preceding the statutes are the following: A table of contents; the “capitula” of several statutes; Ista sunt vocabula Anglicana usitata in cartis antiquorum Regum Anglie exposita ab Alexandro Archidiacono Salopiensi secundum quod continetur in legibus Alueredi, Athelstani, & Edwardi Regum Anglie; Nimina diversarum consuetudinum; a summary showing the statutes applicable to certain cases.

“Thereafter the statutes contain: Constitutio synodalis Londonie celebrata per dominium Bonefacium Archiep. Cantaur; Statutum de conjunctione feoffatus. Westm. Edw. xxvij die Marcij anno regni nostri tricesimo; Statutum de mercatoribus editum apud Acton Burnell; Inquiratur de maneris terris seu tenementis que de domino rege . . . tenebatur per servicum militare.

“Then follow the general statutes: Magna carta regis (Henrici) de libertatibus regni; Carta de foresta; sentencia super cartas lata; Confirmatio domini regis super magnam cartam foreste; Confirmatio domini Archiepiscopi super cartas; Statutum quod vocatur nullum tallagium; Privisiones de Mertone; Statutum de Marleberge; Statutum primum Westmon; Statutum Gloucestr; Explanationes eorundem; Statutum Wesmon secundum; Statutum de scaccario; Statutum de districtionibus scaccarij; Capitula de itenere que tangunt coronam (the end of this and the beginning of the next are wanting); Articuli itineris; Statutum de mercatoribus; Statutum quo warranto; Statutum de Gauelot de London; Statutum novum quo warranto; Statutum de juratoribus; Statutum de prohibitionibus; Statutum de moneta; Dies communes in placito dotis; Statutum de religiosis; Statutum ad inquirend trangr’ (Rageman) . . . .

“Notes: Written in several legal hands in law-French and Latin.

“Rubricated with painted capitals in blue and red.

“Originally bound in brown calf by Clyde (ca. 1850); disbound and boxed ca. 1990.”

The cataloguing in Baker’s English Legal Manuscripts, 1, no. 59 reads as follows:

“59 STATUTA VETERA; TRACTS

“MS. 33.

“Early C.xiv, 341 ff. Includes De antiquo dominico corone; Placita corone; Quot modis dicitur exceptio; Hengham Magna and Parva; Summa bastardie; Ordo exceptionum; Modus componendi brevia; Judicium essoniorum; Cadit assisa.

“Belonged to Bertram (d. 1878), 4th earl of Ashburnham (MS. 186 in App.), and to his son the 5th earl; his sale, S. 1 May 1899, no. 118, to Leighton for George Dunn; his sale, S. 12 Feb. 1913, no. 273; bought privately by HLS.

“Census, I, 1028-1029, no. 33; Hengham, lxxv, no. 37; Brevia Placitata, 66 SS xiv.”

The HOLLIS description of the contents of the manuscript is taken from the Sotheby’s catalogue for the Ashburnham sale of 1899, and is fairly accurate so far as it goes. (Corrections to the transcriptions of the titles, which contain a number of errors, will be found in the ‘heading’ section in the Detailed Contents.) Baker’s description seems to be confined to identifying some of the short treatises. Neither the HOLLIS cataloguer nor Baker seems to have compared the description in Sotheby’s catalogue for the Dunn sale. Had they done so, they would have discovered that this manuscript also contains the treatise known as Britton (fol. 122r–246v), a fact that does not seem to have been noticed since 1913. We seem to have all of it, but it is out of order, giving the impression that it is incomplete. Britton has not been edited since the nineteenth century. Anyone contemplating doing it should know that this manuscript seems to date from close to the traditional date given for the treatise (c. 1300).

Another item of considerable importance is also not mentioned in either description. The manuscript contains a version of Brevia placitata (fol. 264v–286v), quite different from the one edited by Turner and Plucknett (Selden Society no. 65). This fact, however, is quite well known, because that version of Brevia placitata is also the version that appears in HLS MS 24, substantial extracts from which were printed by Plucknett as an appendix to Turner’s edition of Brevia placitata, p. 183–216. Apparently the version in the two manuscripts was sufficiently close that Helen Cam was able to correct errors and doubtful readings in Horwood’s transcript of MS 24 by consulting MS 33.¹

¹ The missing link in the chain is Samuel E. Thorne, who at that time was the law librarian at Yale. He made a copy of Horwood’s transcription, which accompanied the manuscript when HLL acquired it, and transmitted it to Plucknett. Cam, who was teaching at Harvard at the time, checked Plucknett’s transcription against the original and MS 33.

There is a text of Casus placitorum in the manuscript (fol. 259r–262r). Its presence here does not seem to have been previously noted.

There are at least two collections of writs in the manuscript (fol. 286v–292v, a jumble; 293r–327r, a seemingly complete register). Hall, Early Registers, p. xxvi, notes the presence of a register in the manuscript, which he dates to the 14th century. Neither Baker nor HOLLIS mentions the register, and, once more, it turns out to be of some interest.

One can have some sympathy with previous cataloguers. The manuscript is something of a mess. The problems with the manuscript, moreover, antedate its nineteenth century binding. There are missing folios. It is not clear that the manuscript was originally in one piece, and figuring out how the pieces were originally constructed involves some guess-work. We have done what we can in the time available. We think we have a better idea of the various pieces than anyone before us has had. Careful study would probably reveal that we too have made mistakes.

The manuscript is approximately 240 X 150 mm.

A number of hands are at work. As a general matter, the script is less cursive than what is frequently found in legal manuscripts. This is particularly true of the register of writs, which is written in what is definitely a book hand rather than the semi-cursive hand typical of English legal manuscripts.

There are a few decorated initial capitals noted in the Detailed Contents, and a few miscellaneous drawings.

The nineteenth-century binding is not particularly distinguished and is now off the manuscript. Both the manuscript and the binding are kept in a box.

A large tear in fol. 225 has been sewn shut; a smaller one in fol. 112 does not affect the text. Some trimming seems to have taken place at the top, and occasionally on the sides, perhaps when the manuscript was bound. Otherwise, the condition of what are now unbound quires is quite good. Considering the interest of the contents (discussed below), the quires should be rebound.

There is a modern pencilled foliation that skips the initial and final endpapers and begins with the index to the statutes. We checked it digitally; it is accurate, and we used it.

There are medieval or early modern signature marks on some, but not all, of the quires. With one exception (where there is a missing folio), they seem to mark quire breaks that are now visible. The carryovers also indicate quire breaks. Beginning on fol. 86r, there are pencilled quire numbers, beginning with 9, in the lower left hand corner. They were probably put in when in the manuscript was rebound in the middle of the 19th century. The number 9 is repeated by mistake on fol. 98r. Our quire numbers are one higher on fol. 86r, probably because we counted that index of statutes at the beginning and the 19th-century binder did not. Starting with fol. 98r, they are two higher. Folio 132r brings the two numberings back to within one of each other. By skipping the bifolium that contains the contents of the register of writs, the 19th-century binder’s numbers, starting on fol. 307, are once more two lower than ours. In all cases our quire breaks correspond to those indicated by the numbers.

The quiring is somewhat irregular, but the basic unit seems to the sexternion. That is a bit odd, but HLS MS 12, which is roughly contemporary, is also quired in sexterions. We have not yet compared the quiring that we give below on the basis of the images with the actual manuscript. That should clear up some of the puzzles, because the manuscript is currently disbound. There are unlikely, however, to be any major surprises:

Collation: v (unfoliated endpages), 1⁴ (f. 1–4), 2⁸ (f. 5–12), 3¹² (f. 13–23, lacks 1 at the beginning), 4⁸ (f. 24–31), 5¹⁰ (f. 32–41), 6¹⁰ (f. 42–50, lacks 1 after 48), 7¹² (f. 50–61, lacks 1), 8–12¹² (fol. 62–121), 13¹⁰ (f. 122–131), 14¹⁴ (f. 132–145), 15–17¹² (fol. 146–181), 18⁸ (f. 182–189), 19¹² (f. 190–202 + 1 tipped in), 20¹² (f. 203–226, the last one being blank), 21¹⁴ (fol. 227–239, lacks one after 232), 22⁸ (fol. 240–246, lacks one after 246), 23–25¹² (f. 247–282), 26¹⁰ (fol. 283–292), 27² (fol. 293–294), 28–31¹² (f. 295–341, the last one being blank), i (unfoliated, probably originally tipped into 341), iv

There may be text missing at the beginning of quire 2, but the quiring seems to be regular. The first folio of Magna Carta is missing at the beginning of quire 3. There is no text missing as a result of the missing folio in quire 6; there is probably none missing as a result of the missing folio in quire 7 (we cannot tell from the images where the stub is). Quire 13 begins Britton. It is hard to imagine that there is not a quire break someplace in the monstrous quires 14 and 21, but none is visible, and the 19th-century binder did not find any either. There is no text missing as a result of the missing folio in quire 21. Quires 21 and 22 are out of the order of the Britton text. They belong after fol. 189. This is probably the result of misbinding, but their irregular quiring may indicate that they were omitted by scribal error in the copying of the Britton text. They were then copied, probably by the same scribe, and added after what had been designed to be the end of Britton. (Folio 226 at the end of quire 20 is blank.) It is unclear from the images whether fol. 341 is part of the original quiring or whether quire 32 has one fol. cut out at the end.

The quiring and the layout of the texts both point in the same direction: The manuscript as we now have it is basically in three parts: statutes and tracts, Britton, and writs (including what seems to be a complete register). Britton is on entirely separate quires and is laid out differently from the statutes and tracts. It is currently inserted toward the end of the statutes and tracts, but these return after it. The first collection of writs begins in mid-quire after Brevia placitata. The complete register, however, has its own quires, as does the contents list that precedes it. Fet asaver follows the end of the register in mid-quire, and the manuscript closes with additional statutes of Edward I entered in a later hand.

The index at the beginning of the manuscript deals only with the statutes and tracts, which it numbers. These numbers are found in Hindu-Arabic next to the item in question, and are reflected in the majuscule Roman numerals that are used in the headers. The index does not quite match the numbers used in the text, but it is close, until the end when it begins to deviate substantially. Brevia placitata, Casus placitorum, and Fet asaver are not included in the index (although Brevia placitata does have a Roman numeral in its header). All three probably should be regarded as belonging to the ‘writs’ part of the manuscript. Britton is also not included in the index.

As we have already noted, various English legal hands are at work. Most of them could date from the late thirteenth or early fourteenth century. The hand of the basic collection of statutes may be slightly earlier than the rest. At the beginning of the manuscript the statute of Joint-tenants is in what looks like a fifteenth-century hand, and the statute that follows (Acton Burnell) seems to be in a fourteenth-century hand but later most of what is contained in the beginning of the manuscript. At the very end of the manuscript a sample writ, the Prerogativa regis and the Modus levandi fines are added in what looks like a fifteenth-century hand.

If this manuscript was originally one (a question that cannot be firmly answered in its present state), it was probably made for a lawyer in the early fourteenth century who wanted a complete law library, with the exception of Year Books, under one cover. That the first collection of writs stops abruptly, to be followed by what seems to be a complete register, might be explained by our putative lawyer’s having started to compile a register on his own and then having decided to include a complete register in the more normal form that he already had.² It is possible that Britton was added later from a separate source, but the further we get into the 14th century the less likely it is that a medieval lawyer would have confined himself to material that, so far as we can tell, stops in 1307. The additions that seem to date from the 15th century were made by someone who, of course, realized the chronological limitations of the material but was trying to fill in material that antedated 1307 but was not in the manuscript. Most of the additions at the beginning (before Magna Carta) probably date from the time of the original owner. They are entered in the index in a 15th-century hand.

¹ As will be seen from the Analysis of Writs, the complete register is quite out-of-date for the first years of the 14th century. We are unsure about the date of the first writs, which seem to be largely or exclusively judicial writs, that begin the first collection. The first collection then starts to enter a writ of right patent that is dated in 1277, but then abruptly breaks off. The same writ of right patent is found at the beginning of the complete register. What seems to have happened is that having begun to recopy the complete register, our lawyer or his clerk decided simply to include the older complete register, but to furnish it with an index, the numbers from which were then entered in the older copy to supply what was there lacking, marginal headings indicating what the writ was.

The fact, however, that the three main pieces of the manuscript are on separate quires means that we cannot be completely sure that they were ever gathered under one cover around the time of the their composition. The fact that the fifteenth-century additions to the index do not include Britton or the register of writs may suggest that they were not. (The fifteenth-century additions at the end of the register do not have to be connected with a statute-book, although they may be.) These doubts raise the possibility that the collection as we now have it does not antedate the 19th-century binding. On balance, however, we are inclined to think, for reasons suggested in the previous paragraph and its note, that the register was part of the original plan. Of Britton we can be less sure. It is awkwardly inserted between two quires of the tracts that follow the basic statute-book.

There is nothing in the main manuscript that has to be dated later than 35 Edw. 1 (1307), the statute of Carlisle, which is inserted as something of an afterthought between Casus placitorum and Brevia placitata. All of the additions in later hands are also of items that must be, or can be, from that king’s reign. Hence, our approximate date of ca. 1307.

No heading found

The initial writ of right patent is tested by a King Edward at Westminster on 20 May in year 5. (The same date is found in the writ of right patent in the ‘false start’ on the register, described more fully in the table below. The interest of this false start lies in the fact that it begins with what seem to be judicial rather than original writs.) If this is Edward I, the year is 1277. That it is not Edward II is suggested not only by the contents of the register but also by the fact that Edward II was in York on 20 May of his fifth year. The script is a book hand, quite unusual, perhaps unique, among our registers of writs. The descriptions of the writs in the table are not found, as is usual, in the marginalia, but in an index, where they are numbered, with the number being placed next to the writ itself. We have found no attestation clauses that are filled out other than the one on the initial writ of right patent. That does not mean that they are not there; we have not checked them all. What is there in rather large quantity is what look like real names in writs rather than ‘A de B’. Once more we have not checked them all, and our confidence in the date of the writ of right patent could be upset by a more careful examination of the cast of characters. What we have found so far, however, is consistent with that date. For example, Gilbert de Clare (b. 1243, 7th earl of Gloucester and 6th of Hereford 1262–1295) is the addressee of a writ on fol. 322r. (See M. Altschul, in ODNB s.n.) The key to the date of the writ is that it refers to the brief vacancy in the see of Winchester between John Gervais and Nicholas of Ely from 19 or 20 Jan. to 2 May 1268, and to Nicholas as if he were alive; he died in 1280.

Our confidence in the date is based on the legal contents of the register. The limitation period for De nativo habendo is the coronation of Henry III, that for novel disseisin is the voyage of Henry III to Gascony. Both correspond to the limitation periods in Westminster I, c. 39, 3 Edw. 1, and they replace earlier limitation periods. The writs of entry, however, are still dealing with three degrees, per and cui, and do not know post. They have thus not fully come to grips with c. 29 of Marlborough. Trespass is there, but as an afterthought, after the numbering of the writs has ceased. The only possible references to Westminster II (1285) turn out to support the proposition that the register antedates 1285. There are two writs of formedon, one in the descender, one in reverter. The former is not in the form given in the statute, and the latter the statute itself says is already in ‘common use’ in the Chancery.

The following table gives the names of the writs as found in the numbered index and counts them. Two counts are given in the right-hand columns of the table. The first counts all the writs. The second excludes from the total all the writs where the heading includes the words ‘eodem’ or ‘aliter’.