<Preliminary introduction>

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

“Description: 238 leaves : vellum ; 27 cm.

“Notes: Written in a legal hand, long lines, 39 to a full page.

“The first folio contains an illuminated initial miniature of a king with forked beard (presumably Henry IV) with a floreate border, and ornamental pen letters and rubrications in blue and red.

“Bound in early 18c. English rough calf.”

The cataloguing in Baker’s English Legal Manuscripts, 1, no. 53 reads as follows:

“REGISTRUM BREVIUM

“MS. 26.

“Early C.xv, 238 ff., illuminated initial and border, miniature of king with forked beard (presumably Henry IV). The first writ is by John de Wethorp against W. de M. for land in Nottinghamshire, tested 3 Oct. 5 Henry [? IV]. Preceded by an index.

“‘Legh’ (ter, in the miniature); ‘Constat Johanni Clough’ (early C.xvi); given by William Malverne (d. 1539), last abbot of Gloucester, to one Hunt; ‘C. Fairfax’, i.e. Charles Fairfax (d. 1673) of Lincoln’s Inn; Thomas Pulleyn (d. 1759), of Burley Hall, Yorkshire (MS. 138); later belonged to Sir Thomas Phillipps (MS. 11124); his sale, S.8 June 1898, no. 492, to Redford; acquired by George Dunn in Aug. 1908, his sale, S. 12 Feb. 1913, no. 237; bought privately by HLS.

“Census, I, 1027, no. 26; A.B. Emden, Biographical Register of the University of Oxford 1501-40 (1974), 374; Early Registers, xxvi, cxvi n. 9; ELM, II, 22.”

Neither Baker’s count nor that in HOLLIS of the medieval folios is quite accurate. As will be seen below, the number should be 246, excluding the early modern endpapers, of which there are a large number. We also have doubts about the date of composition of the register, though not of about that of its main contents.

The manuscript is approximately 270 X 200 mm.

The primary script of the text is consistent and legible, probably datable to the 15th century though not necessarily early in the century. Other, later hands, often in French and sometimes in English, appear in the margins, in the notes written below the main text, and in the additions before and after the main text. Some of the marginal notes are written in a cursive script that is sometimes called ‘Elizabethan secretary’. A number of hands write in this script. More common are the notes written in a bold gothic script that seems to be quite late. The vast majority of the notes and additions in this script seem be the product of one hand.

The manuscript is laid out with a text block and horizontal lines for the text in pencil or dry–point. The original text observes the layout quite scrupulously. It is violated frequently in the later additions. There are gaps and blank pages to allow the insertion of additional material.

The first page of the register (our fol. 12r) has an elaborate floral border and a decorated capital with a miniature of a king with a forked beard. Throughout the manuscript, the ‘R’ in ‘Rex’ at the beginning of a writ is frequently painted in blue and decorated with red scroll-work. There are also red and blue paragraph marks throughout. There are geometric doodles on fol. 6v but no grotesques.

The leather-and-board binding probably dates from the 18th century. It is in decent condition, although the ropes binding the spine are exposed and the leather has peeled significantly. Both covers are impressed with a small decorative border.

The manuscript is foliated in arabic in the upper right–hand corners in what looks like an early modern script, though we will call it ‘medieval’. The numbers are of the same style as those in the alphabetical list of contents that begins on our fol. 7r, which as we will argue below, dates from the 16th century. The quire that contains this list of contents is not foliated, but all but the first folio (seq. 16–17) of the preceding quire (a ternion) is. The foliation returns, beginning with ‘6’, at the beginning of the register proper. From this fol. 6 onwards, all the medieval folios, except for the last one, are foliated, and correctly.

We resisted the temptation to refoliate the manuscript digitally to include all the medieval folios. The medieval foliation is visible and accurate, if one remembers to add six to it from medieval fol. 6 on in order to the get to the digital foliation. We did digitally foliate the last medieval folio. Adding that number (245) to the medieval folio at the very beginning that is not foliated gives the count of medieval folios (246). Fragments after fol. 24 and 61, the first tipped in, the second pinned to fol. 62, are not included in the digital foliation.

Most folios include chapter numbers recto and verso. Signatures appear on the rectos of the first four folios of each quire in the lower right corners.

The quiring of the medieval folios begins with what seems to be two regular ternions followed by 29 regular quaternions. As indicated in the Detailed Contents, the second of these quires may have been reconstructed from a quire used for other purposes. The last folio of the last quaternion (our fol. 243r) ends in mid-sentence, and does not carryover to the bifolium that follows. As will be seen below, there is also evidence that something more that is now missing followed fol. 243 as late as the 17th century. It is possible that as much as a quire is missing, but there are other possibilities that involve less loss. The contents of the register seem to be nearing the end. Our confidence, however, that not much is missing is shaken by the fact, as indicated in the Detailed Contents, that the first quire contains later references to folios reaching into the early 300s, far more than we now have. We return to this problem below.

At the beginning of the manuscript there is a ternion of basically blank endpapers, preceded by what is either a full bifolium or a bifolium lacking one, depending on whether the marbled pastedown carried over to the freestanding marbled endpaper or is separate from it (we cannot tell which from the images). There is quaternion of basically blank endpapers at the end, followed, once more, by either a bifolium or a bifolium lacking one. These endpapers were almost certainly added when the manuscript was most recently bound, probably in the 18th century. Our collation includes the quires of endpapers but ignores the very first and last groups.

The collation follows with a reconciliation of the digital and manuscript foliation:

1⁶ (unfoliated [seq. 5–16]), 2⁶ (unfoliated [seq. 17]–f. 5), 3⁶ f. 6–11 [unfoliated in the ms.], 4–32⁸ (f. 12–243, fragment tipped in after 24 and unbound fragment after 61 not foliated and not included in the quiring [f. 6-237 in the ms.], 33² (f. 244–245, ?1 quire missing before this one [f. 238–unfoliated in the ms.], 34⁸ (unfoliated [seq. 513–529]).

The base text of the register clearly dates from fairly early in the 15th century. Baker was inclined to think that the King Henry in whose fifth year the initial writ of right is tested is Henry IV, which would give us a date in 1404, but it could be Henry V, which would give us a date in 1418, or Henry VI, which would give us a date in 1426. Nothing in the contents, as we have seen them so far, requires a date after Henry IV, but the contents may not tell us when the manuscript was written. The script would tend to push us to a date at least in the second quarter of the 15th century, and it might be later than that.

This was obviously a working register for some time. The additions before and after the main text, the indexing (but not the capitularium), and the extensive notes in the text itself are in hands that date from 16th century.

The additions before and after the main text are all written in a ‘gothic’ script and are described in the Detailed Contents. They are mostly in note form and are not particularly sophisticated from a legal point view, though they do evince some interest in broader principles, such as actio personalis moritur cum persona. Probably the same hand, certainly one writing in the same script, is responsible for the Index, an alphabetical listing of the writs with the folio on which they are to be found. The same or a similar hand to that which wrote the additions before and after the main text has written many, but not all, the notes in the text of the register itself. In one case it translates into French and Latin notes that are written in English in the register (fol. 29). This hand is quite similar to the base hand of the register. It is usually distinguishable from the base hand of the register by the fact that the writer used a blacker ink than did the scribe of the main text. Usually too, the letter-forms, particularly of the majuscules, seem to be later, but there are passages where one could not be sure that this hand was later than that of the main text.

We have looked for later additions to the manuscript that employ the same gothic script but are in a different hand from the dominant one. There are one or two examples (e.g., fol. 21r), but the overwhelming majority of the examples seem to be not only in the same script but also in the same hand. On this assumption, that hand is much later than the main contents of the register. As is demonstrated in detail in the conclusion to the Preliminary Analysis of the Writs, that hand certainly was making notes in the main text as late as 1573 and probably as late as 1585/6. The similarity of this hand to that of the main text raises the question whether the main text itself was written at a date much later than its contents. We leave the description of the additions for a moment to pursue that question, beginning with what what we know of the provenance of the manuscript:

Since he wrote the catalogue, Baker has identified the John Clough who owned the manuscript in the early 16th century as the John Clough (Clowgh) who was a Chancery cursitor in the 1530s and probably the Clough (no given name) who was of Inner Temple from 1520. Baker, Men of Court 1.485.

That makes even more puzzling the 17th-century note on fol. 245r which says that William Malvern ‘nuper abbas Sancti Petri Glouc’’ gave the book to one Hunt. The folio being referred to is probably one of the ones that are now missing at the end of the preceding quire. Dunn (seq. 5) thought that Hunt’s first initial was ‘J.’, but we do not know why he thought that.

Malvern was the last abbot of Gloucester. He became abbot in 1520 and died in office in 1539, when dissolution was very much in the wind but had not yet happened. See C. Litzenberger, in ODNB s.n. Malvern, William [formerly William Parker] (1485x90–1539). Malvern had degrees in civil law and also in theology, but it is hard to see why he might have been interested in this manuscript. Perhaps he bought it to give to Hunt. There are a number of Hunts in Baker, Men of Court, but the only one firmly identified with Gloucestershire is John I (1.910), who is too early.

This is, perhaps, enough to revise the order of probable owners of the manuscript given both by Baker and Dunn. The first may be ‘Legh’, whose name is written in the initial capital on our fol. 12r.¹ The name is too common to make any identification possible. Malvern is next, but he may have bought it in order to give to a lawyer, perhaps a clerk, named Hunt. From there it passed into the hands of Clough, whom we can quite firmly identify with the Chancery. All of the later additions to the manuscript, however, seem to have been made by others well after Clough’s time.²

1. It is not clear that Legh is the first owner. Baker read the name three times in the image. The first is in the upper right-hand corner of the image. In the upper left-hand corner is what may be ‘De brevibus’ written in a script that seems too late for 15th century. The second is in the loop of the ‘H’, but the third is not in the stem of the ‘H’ but what is there looks like ‘chn’ leading us to wonder whether we should thinking that Legh’s given name was Christian. That is not a common given name in the 15th century. None of the various Leghs in Baker’s Men of Court has that given name.

2. At this point, we probably should revise Dunn’s description of Charles Fairfax, the third owner. He was not a parliamentary general. That was his brother Ferdinando and his nephew Thomas. He was, however, a parliamentary colonel in the Second Civil War. He was of Lincoln’s Inn, and is well known as a genealogist and antiquary. See A. Hopper, in ODNB s.n. Fairfax, Charles (1597–1673).

Legh being unidentifiable, the first dates that we have for ownership of the manuscript are Malvern’s dates, most likely sometime between 1520 and 1539. Is it possible that the story should begin with Malvern, i.e., not only that he owned the manuscript but that he had it made? That possibility would seem to do violence with what seems to be the date of the script of the base manuscript, but we have already seen that dating by script can sometimes be misleading. We would not have suspected that a man who could write in a way quite similar to the text of main manuscript would be writing as late as 1573 or even 1585/6. The date in the intial writ of right patent also seems to stand in the way this proposal. The ‘Henry’ of the writ could, of course, be Henry VIII, but that would put the date of the writ in 1513, probably too early for Malvern.

That Malvern bought an already existing manuscript does not, of course, mean that the manuscript has to have been made in the first quarter of the 15th century. The Henry of the writ of right patent could be not only Henry VIII, but also Henry VII, which would give us a date in 1489. And the script does look late for a date in the first quarter of the 15th century.

Ultimately, however, we come to the conclusion that the most likely date for the making of the base text is the second quarter of the 15th century. What brings us to this conclusion is the fact that the capitulary that begins the register, which is written in the same script as the base text and is used for the Summary of Contents below, bears a remarkable resemblance to that for HLS MS 27, which we dated to the 15th century, probably before 1450 rather than after. Both divide their respective registers into 46 chapters. The first 29 chapters of our manuscript map directly onto those for MS 27. Our manuscript includes a chapter De etate probanda after De avo et consanguineo, whereas MS 27 does not. MS 27 divides writs of entry into four chapters, whereas our manuscript uses only three. De libertatis allocandis and ‘Corrodies and pensions’ are in MS 27 in reverse order. With these exceptions the final sixteen chapters map directly onto each other. The underlying contents of the two registers are also remarkably similar, though they are not quite the same. (The initial writ of right patent, for example, is certainly not the same.)

The dating of HLS MS 27 is pretty solid. Not only do its contents and script fit with what we might expect in the second quarter of the 15th century, but we can be quite confident that it was owned by a man who was a Chancery clerk between 1429 and 1451. The script and contents of our manuscript fit with those dates. That means that the Henry whose name is on the intial writ of right patent is probably Henry VI, and the date is 1426.³

3. In the case of MS 27, an attempt to update the writ addressed to the bailiffs of the queen confirmed, in a backhanded way, that the initial writ of right patent was dated in the reign of Henry VI. We lack that attempt to update here. The writ to the baillifs of the queen names the queen as ‘Anne’, i.e., Anne of Bohemia, Richard the Second’s first queen, who died in 1394.

What this means, of course, is that the script of the main contents of the register is not particularly conservative. It is about what we expect for its time. It does mean, however, that the 16th-century gothic script is very conservative. This is not, however, surprising if we attribute it to a Chancery clerk. Chancery clerks, particularly those who were responsible for original writs, were trained to write in this way.

Returning now to the later additions: there are scattered throughout the capitularium in a much later hand notes of other writs with folio references. Some of these references go far beyond the folio numbers that we have in our register, a few of them into the early 300s. As we have seen there is clearly something missing after our fol. 243. It is possible that there was a great deal of material added to the register, material going well beyond the original chapters. This material would then have had to have been removed before the alphabetical list of writs was made, because all of the folio references in the index are to be found in what we have. It seems more likely that the folio references that are found in the Capitularium are to another register. The references on our fol. 3r seem to correspond to what is found in the printed register of 1553, fol. 308–312, and we rather suspect that the others do too. The printed register is also referred to by folio number without title on fol. 12v, and probably elsewhere as well. References to a fol. 256 are found on our fol. 238. It is hard to see how these rules could have been derived from what is found on fol. 256 of the printed register either of 1531 or 1553 (which are the same), but it is even harder to see how anything relevant to these topics would have been included in our register after our last folios. It is possible that these rules were copied from manuscript notes on a fol. 256 of the printed register.

The alphabetical index of contents is a bit odd. It is not strictly alphabetical except for the initial letter. What seems to have happened is that the maker went through the register gathering names of writs that he arranged according to the first letter of alphabet of their names. He then wrote down the folio number on which the writ was found. He made no attempt, however, to arrange the result in alphabetical order. Hence, the letter ‘a’ begins with writs of attorney that are found fol. 6 through 27 in folio order. He then proceeds to advocacio decimarum also found on fol. 27. Ad iura regia from fol. 58 is tucked in at the bottom of the column, but the beginning of the next column gives us assisa ultime presentationis, attorn’ inde, and attinct’ inde, all on fol. 28. The result then combines what today we would think of as an index with what today we think of as a table of contents. The highest folio reference that we have found is proteccio pro abbate on our fol. 11v which references medieval fol. 237 (our fol. 243, the antepenultimate folio in our numbering). That the index was inserted without foliation after the first foliated pages may be explained by the fact that the indexer wanted the register to begin with the medieval capitularium, already foliated.

The unfoliated fragment that is tipped in between our fol. 24 and 25 is of considerable antiquity. The script is much more like that of the main text than it is like that of the gothic script of the 16th-century additions. It contains five aliters and a nota for de execucione iudicii, which is on fol. 24. It may not have been there when the 16th-century annotators turned their attention to the manuscript. If it was, they paid no attention to it. It is not foliated, and there are no later notes on it.

The unfoliated fragment that is attached to fol. 62r with a common pin is a copy, probably made in the 15th century, of a writ of scire facias issued in 17 Edw. III with the name of Robert Parning, chancellor, after the regnal year.⁴ The date of the writ would be 1343, sometime before August of that year when Parning died. The marginalia describe the writ as ‘Scire facias quando consultacio non debeat concedi post prohibicionem’. That topic is related to the writ that appears on fol. 47r. There is no evidence that the later annotators paid any attention to this writ, but they evince an interest in other writs of Parning’s on fol. 21r and 22r.

4. Parning’s name may be misspelled, as it frequently is, ‘Parvyng’; see C. L. Kingsford, rev. W. M. Ormrod, in ODNB s.n. Parning, Sir Robert (d. 1343).

The contents of the 16th-century additions to the main register are transcribed or described below in the Preliminary Analysis of the Writs. The conclusion to that Analysis summarizes what can be learned from these additions, comparing and contrasting those written in gothic script with those written in cursive script. We summarize the conclusions that we reached there and add a bit more speculation:

The writer(s) of the notes in gothic script, of whom there were, for the most part, probably only one and those who wrote in cursive script, of whom there were several, though one of them may have been the same as the principal author of the gothic script, were contemporaries who worked on the manuscript at the same time. What distinguishes them is a difference in concerns. The concerns do overlap. Both, for example, make considerable use of rules derived from Fitzherbert’s Nouvel natura brevium. They also share a lack of concern with the, quite substantial, contents of the register after formedon. The concerns, however, of the writer of the gothic script are more distinctively clerical. He lists, for example, the stages of mesne process for virtually every major writ. His is the list of forms of address on seq. 18. The writers of the cursive script are quite capable of getting into matters of minute detail about the framing of the writs, but show more interest than does the writer of the gothic script in case law. The writer(s) of the cursive script, and in this case it is probably only one, makes considerable use of Brooke’s abridgement, whereas the writer of the gothic script uses it, so far as we have so far discovered, only once.

The most plausible explanation of how the later additions were made would seem to be that the manuscript was owned by a Chancery clerk in the first decades of the reign of Elizabeth I. He made most, if not all, of the additions in gothic script, but he shared his manuscript with other Chancery clerks who made additions in more informal hands. Locating the manuscript in the Chancery when this happened cannot quite be proven, though we have fairly firm evidence that it belonged to a Chancery clerk in 1530s. An alternative location might be one of the inns of Chancery, but although there are some fundamentals contained in the manuscript that would be appropriate for beginners, what was done with some of the additions is, at least to us, too sophisticated for beginners. Further, the citations to folio numbers beyond what we have in the manuscript suggest that those who were working on the manuscript had common access to a printed register. There is no evidence that the inns of Chancery had libraries.

To go from the speculative to the even more speculative, it is striking that we seem to have located the activity of the annotators during the period in which James Dyer served as CJCP (1559–1582). Dyer is well known for his hesitance in accepting the transition from the real actions to ejectment. See J. H. Baker in ODNB, s.n. Dyer, Sir James (1510–1582). Our annotators are interested in original writs in the traditional actions (both personal and real but mostly real) almost to the exclusion of any other type of original writ, and very much to the exclusion of the largely administrative writs that make up the contents of the register after formedon. Our annotators are also interested in history. Four different notes, three in gothic script and one in cursive, comment on the invention of writs by Robert Parning, Chanc 1341–1343 (fol. 21r, 22r). The gothic hand has added at the end two writs concerning review of the court of the Constable in the time of John Cheney, 1393–1397. We should not be surprised at finding sympathy with Dyer’s views in the Chancery in this period. His view was carried on by Coke and is reflected in the publication of Booth’s Real Actions in 1701. By that time, of course, the interest was antiquarian and nostalgic.

To return to the manuscript itself: this is a very large register, even without taking into account what may be missing at the end. It probably dates from the second quarter of the 15th century. It may have been made for clerk, as HLS MS 27 seems to have been, but we lack the evidence for that that we have for MS 27, other than the similarity of the contents of the two registers.⁵ Early in the 16th century, it fell into the hands of a Chancery clerk, a cursitor, for whom original writs would have been of particular interest. It seems to have remained in the Chancery for some time. Hands certainly dating from the second half of the 16th century added notes either for themselves or for the instruction of others, forms of address, and rules about writs, not only before and after the register, but also in the register itself. One of these annotators also foliated and indexed the register. The evidence that the manuscript provides of the activity and interests of this group of clerks makes this manuscript, so far as we now know, unique. That the clerks of the Chancery would have been working on a manuscript register as late as the reign of Elizabeth I might cast doubt on the common assumption that the printed register simply took over after its publication in 1531, though the writers of these notes are aware of the printed register. Later the manuscript fell into the hands of a 17th-century antiquary, to whom we probably owe its preservation.

5. Hall, Early Registers cxvi, n. 9. Lists this as one of the registers of monastic provenance, i.e., Gloucester abbey. We are inclined to think that it was the property of the abbot, and only for a brief period, and not of the abbey. Since we lack any evidence of the whereabouts of the manuscript in the 15th century, it is, of course, possible that it was at Gloucester abbey when Malvern gave it to Hunt, though one would wonder whether the abbot had the authority to do that, if it really was the property of the abbot and convent. Suffice it to say here that the evidence of a connection of this manuscript with Gloucester abbey is not nearly so firm as that of the connection of HLS MS 28 with Titchfield abbey.

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We argue in the Introduction that this register is to be dated in or shortly after 1426. The date is not as certain as is the date of 1424 for MS 27, but the striking similarity of the index of the two registers and the substantial similarity of their contents make it quite likely that the Henry in whose name and in whose third year the initial writ of right was tested was Henry VI.

The register fell into the hands of 16th-century Chancery clerks who made considerable additions. We have attempted in what follows to transcribe or describe the 16th-century additions. We have put these transcriptions or descriptions in the notes field. Had we left them in the writs field it would have thrown off the count of the writs. We have distinguished between those notes written in a ‘gothic’ script, as described in the Introduction, from those written in what seems to be Elizabethan secretary, which we have called ‘cursive’. Where the script is not marked it should be assumed to be ‘gothic’. We have made no attempt to distinguish among the hands writing in these two styles unless we were absolutely sure that it was a hand different from the two basic ones. We claim no expertise in Elizabethan secretary and even those additions made in ‘gothic’ script are not always easy to read. One must, however, start somewhere.

The following table gives a rough transcription of the marginalia in the register in the order in which they appear on the page. The following table gives a rough transcription of the marginalia in the register in the order in which they appear on the page. Two counts of the writs are given in the right-hand columns of the following table. 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’.