<Preliminary introduction>

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

“Description: 91 leaves : vellum ; 28 cm.

“Summary: Includes Brevia placitata (in Law-French); Hengham Magna and Parva; Judicium essoniorum; Cadit assisa; Cum sit necessarium (i.e. Modus componendi brevia); Exceptiones ad cassandum brevia (in law-French); De bastardia; Tractatus corone; Placita corone (in law-French); Articuli in narrando; Exceptiones contra brevia.

“Notes: Written in a neat legal hand, long lines, 40 to a full page.

“Rubricated in blue and red with several large and finely decorated initial pen-letters with marginal elongations.

“Laid in is ‘MS 24b’ a single leaf (28 x 18.5 cm) written in 24 lines in Anglicana script with alternating red and blue paragraph marks, laid in; it contains the Tractatus de bastardia (end) and Exceptiones ad cassandum brevia (beginning).

“Publications: Jerome S. Arkenberg, ‘The story behind a stray medieval manuscript leaf’ in the Harvard Library Bulletin, New Series, v.8, n. 4 (Winter 1997), pp. 46–54.”

The cataloguing in Baker’s English Legal Manuscripts, 1, no. 49 reads as follows:

“REGISTRUM BREVIUM; TRACTS

“MS. 24.

“Early C.xiv, 91 ff. Includes Brevia placitata; Hengham Magna and Parva; Judicium essoniorum; Cadit assisa; Cum sit necessarium (i.e. Modus componendi brevia); Exceptiones ad cassandum brevia; De bastardia; Tractatus corone; Placita corone; Articuli in narrando; Exceptiones contra brevia.

“‘Edwardus Wallwyn’ (c. 1500); ‘Franciscus Palgrave Int. Templi Soc. MDCCCXXIII’: i.e. Sir Francis Palgrave (d. 1861); ‘Alfred J. Horwood, Temple’ (d. 1881); his sale, S. 8 June 1883, no. 1334, to Ridler; acquired by George Dunn in March 1898; his sale, S. 11 Feb. 1913, no. 12; bought privately by HLS.

“Census, I, 1026-1027, no. 24; Hengham, lxxvi, no. 39; Brevia Placitata, 66 SS xiv; J.M. Kaye ed., Placita Corone (1966), sigla O; Early Registers, xxvi, li n. 6.”

The HOLLIS description of HLS MS 24b is mistaken, out-of-date, and incomplete. MS 24b is a single leaf that was originally tipped in between fol. 79 and 80 (it is numbered in pencil 79b and 79a). It was removed from the manuscript and given a separate shelfmark, HLS MS 24b, but is still stored loose at the end of HLS MS 24. It was photographed in reverse order. Seq. 192 is the end of Excepciones ad cassandum brevia, and seq. 191 contains the explicit of Excepciones and the beginning of the Tractatus de bastardia, i.e., the opposite of the contents as described in HOLLIS. A learned description of this leaf may be found in J. S. Arkenberg, ‘The Story Behind a Stray Manuscript Leaf’, Harvard Library Bulletin, n.s. 8.4 (1997) 46–54 (online). He dates it to the 13th century. We agree, and would be inclined to date it a bit earlier than the main manuscript. We have not pursued how closely the texts given in the leaf match those the same texts in the main manuscript.

The HOLLIS date for the main manuscript (ca. 1275) is too early. The initial writ of right in the register is tested on 2 January 1294, giving us a pretty solid terminus a quo. The Analysis of Writs, below, suggests that there is a reference to Articuli super cartas (1300), c. 13, on fol. 31v; hence, our suggested date of ca. 1300.

Less serious, but annoying, Brevia placitata is misspelled in the HOLLIS entry, as is Excepciones ad cassandum brevia.

The binding is undistinguished.

The decoration is as described in HOLLIS. The script is a legal English semi-cursive hand of the late 13th or early 14th century. The script is similar throughout the manuscript. We have not checked to see if more than one scribe was at work. The overall impression is of a quite high-quality production.

The manuscript measures approximately 280 X 185 mm.

The manuscript has a modern foliation in pencil in the upper right-hand corner beginning with the first folio that has medieval writing on it and not including the endpapers. The digital foliation corresponds to this foliation. As noted above, the pencilled foliation numbers HLS MS 24b fol. 79a and 79b. We have retained that foliation but have placed the image in seq. 191 and 192 where the item is currently found. The original foliation did not foliate the 19th-century note that was tipped in following fol. 90. We have listed it as unfoliated in its proper place.

There are medieval signature marks running from a to n and missing i/j. The quire breaks correspond to these marks, giving us quires that originally consisted of eleven quaternions and two ternions. The original signature i/j is entirely missing; it would have been the ninth quire. What is now the twelfth and last quire lacks one, probably at the end. Collation of the medieval parts of the manuscript as they are now follows:

1⁸ (f. 1–8), 2⁶ (f. 9–14), 3–7⁸ (f. 15–60), 8⁶ (f. 61–68), 9–11⁸ (f. 69–84), 12⁸ (f. 85–91, lacks one, probably at the end).

Both the HOLLIS and Baker descriptions of the contents of the manuscript are accurate. They do not, however, give the order of the contents nor do they mention the inclusion of the short tract called De divisione brevium which is incorporated in Articuli in narrando. The complete contents, in order, follows:

Brevia placitata, Register of Writs, Hengham magna, Judicium essoniorum; Cadit assisa, Hengham parva, Cum sit necessarium, Exceptiones ad cassandum brevia, De bastardia, Tractatus corone, Placita corone, Articuli in narrando, De divisione brevium, Excepciones contra brevia

Most of Hengham magna is lacking. All that is there is a relatively short excerpt from the very end of the work. The rest of it was probably contained in the now-missing signature i/j. That signature probably also contained the end of the register, which as we now have it ends in mid-sentence.

Although the register of writs occupies the largest proportion of pages in the manuscript, that proportion is still less than half of the pages (48% vs. 52%). That means that more than half of the manuscript is devoted to instructional treatises, of which by far the largest proportion is devoted to Brevia placitata (26% of the total pages in the manuscript). The substantial presence of these instructional treatises, coupled with the fact that Brevia placitata comes first suggests that the manuscript was compiled for instructional purposes. This suggestion is reinforced by the fact, as suggested below in the discussion of the writs, that the register of writs is in some ways a bit old-fashioned for its date. We tentatively conclude, then, that this manuscript represents a collection of material for a teacher of aspiring lawyers and clerks, or even for one of his students. There would, of course, be a substantial overlap between what a teacher would need and what a practicing lawyer or chancery clerk would need, but the contents of the manuscript points more in the direction of the former. The conclusion to the Analysis of Writs suggests another possibility – that the original owner was a specialized Chancery clerk. That possibility probably better accounts for the contents of the register but not for the rest of the manuscript. We leave it to the reader to decide which is more likely.

In closing we might mention that the provenance of this manuscript is quite distinguished. It belonged to Sir Francis Palgrave (d. 1861), who was in many ways the founder of the Public Record Office (now The National Archives) and to Alfred J. Horwood (d. 1881), the first modern editor of the Year Books. It came to HLS as part of the Dunn collection. Portions of the version of Brevia placitata in this manuscript were edited by Plucknett as an appendix to Turner’s edition of Brevia placitata (Selden Society no. 65), p. 183–216. He began with Horwood’s transcription of it. The story of the collaborative scholarship in the days before copy machines and email that was involved in this effort is told in the introduction to MS 33.

No heading found

As noted in the Introduction, the initial writ of right in the register is tested on 2 January 1294. Incorporated in the section of the register of trespass (fol. 31v) is a reference to an unnamed statute, which seems to be Articuli super cartas, c. 12, 28 Edw. 1 (1300). As will be seen below, there is much in this register that suggests an earlier date. Perhaps the principle of c. 12 of Articuli super cartas– that beasts of the plough were not to be taken in distress for debt if something else were available that was sufficient– had been derived from previous statutes, e.g., Marlborough c. 4, 15; Westminster I, c. 16, 17. The Chapters in eyre, temp. incert., S.R. 1:238, states the principle and seems to refer it Westminster I. The presence, however, of this reference seems to be sufficient to raise the probable date of mansucript to ca. 1300, even though most of the material in the register is earlier than that. We will return to this question after we examine the contents of the register.

This is the first register of writs that we have that is not combined with a statute-book, though, as noted above, the manuscript also contains a number of instructional treatises. The register itself seems to be complete, save for the very end. Probably little is missing there because the missing quire that would have contained the last page or folio of the register would also have contained almost all of Hengham magna.

The headers of the register were written in a small hand, roughly contemporary with the manuscript and more informal than the main hand of the manuscript. They were also written very close to the top of the page. Some of them were clearly cut off in binding; others that are no longer visible at all may have been. Four of them contain Roman numerals, suggesting that they might have been connected with an index of writs. If they were, it was not in the order of the manuscript because the numbers are not sequential. Since there are only fourteen headers now visible, we did not base our divisions of the manuscript into sections on them, though they did provide some guidance. The presence of the headers is also encouraging because they indicate that contemporaries were thinking of grouping the writs in a way similar to what we have been using.

The following table gives a rough transcription the marginalia in the register in the order in which they appear on the page. Two counts are given in the right-hand columns of the table. The first counts all the writs for which there are marginal notes, excluding, however, the notes that labelled ‘Regula’ or ‘Nota’. The second excludes from the total all the writs where the marginal note includes the words ‘eodem’ or ‘aliter’.

This register is transitional between Hall’s Register ‘CC’ and his Register ‘R’ both in terms of its probable date and in terms of its contents. It contains substantially more writs (471, the second of the two totals, which is closer to the way in which Hall counted the writs in ‘CC’) than does ‘CC’ (237) but fewer (647, using the first of the two counts, which is closer to the way that Hall counted the writs in ‘R’) than ‘R’ (886). The major categories of writs are pretty much what we have come to expect as is the order (with a rough proportion of the total space in the register devoted to this category): Right (9%), Ecclesiastical (11%), Waste (2%), Replevin (9%), Trespass (7%), Criminal (19%), Account (1%), Rights in land, Debt, Covenant, Dower, Wardship (16%), Novel disseisin (10%), Mort d’ancestor (4%), Entry, Formedon (4%), Assizes (4%), Miscellaneous (3%). There are some differences. The expected writs of right and ecclesiastical writs occupy proportionally less space than they had in the previous registers. There is a new category, waste, now broken out from its previous position buried in ecclesiastical. In replevin, the headers call our attention to a page-worth of writs concerning villeins: De nativo habendo, De tallagio levando. These writs are found in other registers grouped with replevin, but this is the first register to note that their position is odd. Trespass follows, and it is substantial (8%, comparable to the 9% in MS 36). Criminal writs follow trespass, and the criminal section is substantial (20%, the largest proportion in the whole collection and perhaps the largest proportion in any register that we have). The miscellaneous category that intervenes between account and novel disseisin is miscellaneous indeed, mostly rights in land and/or rights of lordship but also what little is devoted to debt and covenant, dower, wardship. It is also large (16%, the second largest proportion of writs). Novel disseisin, mort d’ancestor and related writs follow (together 14% of the writs). Entry follows, confined, it would seem to entry in the first degree, with no per, cui, or post. Tucked into this section are two formedon writs, neither of which needs to have been based on the statute. The register closes with a fairly substantial section De ponendo in assisis (4%) and a very miscellaneous section (3%) that has all the hallmarks of being a collection of afterthoughts.

To return to the question of the date of the register: Most of the section De ponendo in assisis would seem to be based, though it is not cited, on Westminster II, c. 38. (The writ on fol. 58v that men over the age of 70 are not to be put on assizes is a particularly good example.) The marginal reference to the writ De herede rapto on fol. 46r that the writ is ‘secundum statutum’ is probably a reference to Westminster II, c. 35. On fol. 54r the writ that directs the assizes to be taken, as the marginalia put it, ‘non obstante statuto’, is almost certainly a reference to Westminster II, c. 30. Hence, despite the old-fashioned quality of the writs of entry and formedon, there can be little doubt that the maker of this register was aware of Westminster II. Except for the probable reference to c. 12 of Articulis super cartas, noted at the beginning of the table, we have found no references so far that have to be later than the 1294 date of the initial writ of right patent.

Our initial impression, principally on the basis of the number of instructional treatises that it includes, was that this register was designed for teaching purposes more than for practical purposes. We are not sure that we would back away from that suggestion. Those who teach law will know that our courses are not totally up-to-date in every respect. We become interested in certain topics and certain recent developments, and the rest of the course remains as it had been for some time. This register has some of those qualities. The teacher became interested in criminal law; he incorporated some material from Westminster II, but left formedon and entry as they had been for almost a generation. Organizational improvements were made, but a large section in the middle of register was a jumble. That did not bother the teacher. He knew where to find what he was looking for.

There is, however, another possibility that may be more plausible. This is a practical register, but not the register of a practicing lawyer. It is the register of a practicing clerk. His specialty was not writs that originated litigation in the central royal courts; his specialty was commissions from the king: commissions to make inquests, commissions to deliver gaols, commissions to take assizes. Almost everything that is up-to-date in this register deals with those topics, as does most of the large criminal section. Almost everything that is out-of-date, or downplayed, deals with originating private litigation in the central royal courts. If all we had was the register, that imagination of the owner fits better than does the imagination of a teacher. It does not, however, fit well with more than half of the contents of the manuscript, the instructional treatises. One can think of ways around this fact, for example, that these treatises were what our putative clerk learned from when it was not clear where his professional specialty lay, but the puzzle remains.