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Some Preliminaries to the Study of English Common Law Records1
Published online by Cambridge University Press: 16 January 2009
Extract
In his Inaugural Lecture as Downing Professor at Cambridge in 1888 F. W. Maitland, after introducing to his hearers certain matters—the variety, classification and enormous mass of Legal Records surviving in England—which were then little appreciated, went on to develop two lines of thought: first, that the wealth of evidence contained in these Records needed, if it was to be utilised, the labour of Scholars trained in the Law; and second, that it was evidence not only for Legal Historians but also, and much more, for other Historians and Students of every kind. The first of these propositions needs a little qualification: indeed Maitland himself would, I am sure, now qualify it, for some of the most enthusiastic and most successful Scholars who have followed in his footsteps have been not Lawyers but Historians. Still it remains true that the first and worst difficulties to be solved are legal ones, obscurities not soluble by any of the ordinary aids to the understanding of ancient Documents in general but arising from points of Law: some of them points which the Historian might puzzle over for hours whereas the Lawyer would solve them in a moment; all of them peculiar to this one great category of Records.
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References
2 Printed in Maitland's Collected Papers, Vol. I. Read in conjunction with his programme for the newly founded Selden Society, issued in the previous year, it presents an astonishingly comprehensive survey of a field then almost unknown.
3 To name only two, Professor B. H. Putnam, our leading authority on medieval Justices of the Peace and their Records, and her Colleague the late Professor N. Neilson. Maitland himself has been recorded as saying that one of his first classes consisted of ‘two faithful Women and William Cunningham’: but the last named was later Archdeacon Cunningham, the Economie Historian, and the Women were Mary Bateson and Ellen A. McArthur, both distinguished Historians.
4 See my Later Court Hands (Cambridge, 1927): in particular pp. 74 and 75.
5 Edward Cocker, Godfather to a well-known proverb, was one of a large number of professional Writing Masters who are known to have practised, and in many cases published copy-books, in London during the seventeenth and early eighteenth centuries. All of them taught, apparently, the Legal as well as other writings, but Cocker's copies are the best known for the Legal hands and continued to be reproduced long after his death. He gives copies for the small and highly current, the medium and the large Legal: the latter being that described by one of the Norths (in a phrase afterwards borrowed and misapplied by Walter Scott) as resembling pig's ribs. Sec North, Roger: Lives of the Norths, Jessop's, ed. (1890), Vol. I, p. 22.Google Scholar
6 I.e., from the late twelfth to the mid fifteenth.
7 It was still in common use by Lawyers at this date: indeed, North, Roger, in his Discourse on the Study of the Laws (1824), p. 13Google Scholar, remarks: ‘For really the Law is scarcely expressible properly in English, and, when it is done, it must be Françoise, or very uncouth. All moots and exercises, nay, many practices of the law, must be in French, at the bar of the courts of justice; as when Assizes or Appeals are arraigned, the Array, that is, Pannels of Juries challenged or excepted to, it must be done in French; so Courts, Bars, and such transactions as reach no further than the Bench, and Counsel, with the Officers, and not to the Country … are to be done in Law French’.
8 The long narrow ‘Roll’ here described is not strictly speaking peculiar to purely Legal Records—it is used also in the Exchequer Memoranda Rolls: but these are in effect quasi-legal; and it is not, so far as I know, normal elsewhere.
9 The single membrane is also, rather confusingly, called rotulus.
10 One of the later Rolls of the Common Pleas may weigh half a hundredweight.
11 An unique Sheriff's Roll for Bedfordshire and Buckinghamshire in the years 1333—4 is the subject of a volume by G. H. Fowler published in 1929 for the Bedfordshire Historical Record Society. On this were entered over 2,000 Writs received by the Sheriff: from the King's Courts with notes of the action taken.
12 The only exceptions are normally in the Records of Courts of post-medieval institution: the most notable being the Sessions Roll of Justices of the Peace, actually as a rule a combination of one long membrane and a file of Miscellanea.
13 Dickens, Charles, Pickwick Papers, Chapter XXXIXGoogle Scholar: Mr. Perker apparently made one word of it, but it is of course two, ca sa—capias ad satisfaciendum.
14 The third is that of Original Communications preserved by the recipient.
15 For example in citation of a Writ of distringas the words donec, etc., are enough to represent a whole clause—donee aliud a nobis inde habueris preceptum. The Clerk who wished to be even briefer would make a single abbreviation, dis', stand for the whole Writ.
16 On this subject see Maitland's article in Collected Papers, Vol. II. The Registrum itself, however, it must be admitted, sometimes uses etc.
17 For example the re fa lo (recordari facias loquelam) addressed by the Crown to a County Court and duly registered in its Plea Roll.
18 Putnam, Miss has discovered and published (in Oxford Studies in Social and Legal History, Vol. VII (Oxford, 1924))Google Scholar one medieval formulary compiled for the guidance of a Justice of the Peace in Worcestershire in the early fifteenth century.
19 Miss Putnam (op. cit.) has compiled a list of no less than 57 new works or new editions of old ones, published between 1506 and 1599 for the enlightenment of Justices of the Peace. On the side of County Administration no such bibliography is available but the Student will find some indications in G. H. Fowler's Sheriff's Roll, already cited.
20 It is important to remember here the number—well into five figures—of the medieval Manorial Courts.
21 A good example of varying denominations is supplied by Macclesfield; which had a Hundred Court, Hallmotes of the Forest and of the Manor and Forest, Portmote and Great Leet of the Borough, Court of the Mayor, Swainmote of the Forest, and Court Leet of the Manor and Forest.
22 For example the thirteenth century treatise ‘Cy poet on juuenes homme ver Coment il deyt sotylement parler en Court’, printed by the Selden Society in The Court Baron (1890). This is known to exist in more than one copy: a new one, from which I take the above rendering of the title, was noted some years ago in a volume in the possession of Messrs. Sweet and Maxwell, who printed a translation of it.
23 So far as I am aware there is no bibliography available but some of these treatises have been reprinted by the Manorial Society.
24 Our earliest Plea Rolls (see, for example, that reproduced in Johnson, and Jenkinson, , Court Hand Illustrated (Oxford: 1915)Google Scholar Plate IX) were apparently written actually, as they purport to be, in Court: but the Clerks soon gave up the attempt to do this. Thereafter procedure varied. In some cases a draft was prepared beforehand with gaps left in it, perhaps, which might or might not be filled up in Court: in others (and this probably became more and more the normal way) the Plea Roll entry was written up subsequently from notes. See some account of procedure in the Common Bench in the late Miss Isobel Thornley's Yearbooks, 11 Richard II (Ames Foundation: 1937) and Hastings, MargaretCourt of Common Pleas (New York: 1947).Google Scholar
Towards the end it would seem that in some of the Royal Courts the Attorneys in the case were responsible for making the ‘enrolment’, being supplied with a numbered ‘membrane’ which they were to write and send in for filing: but at what date this became the custom is a question not yet settled.
On the other hand we have in the fourteenth century County Court Roll for Bedfordshire (published by G. H. Fowler with his Sheriff's Roll) evidence that the notes on the roll of one Session were the basis of a draft, made beforehand, for next Session's proceedings. See an article in English Historical Review, Vol. XLIII, p. 21.
25 For the history of this curious sign which appears (though often unrecognised) in the margin of Plea Rolls of every kind and date see my Later Court Hands (Cambridge: 1927), p. 92.Google Scholar
26 There is only one exception—the rare case where there are several Defendants of whom one at least has come and one at least has not.
27 There is a curtain amount of known evidence on this point. For example Justices and many other Royal Officials who for one reason or another habitually perambulated the Kingdom were empowered to receive formally, or acquired the habit of receiving, appointments of Attorneys and certifying them to the Courts concerned: no doubt in return for a suitable fee.
28 See an article by Fowler, R. C. in English Historical Review, Vol. XXII, p. 101CrossRefGoogle Scholar, and further notes by Miss M. T. Martin, ibid., Vol. XXII, p. 526; A. E. Stamp, ibid., Vol. XXIX, p. 323, and Miss Elsie Toms, ibid., Vol. LI, p. 268: and cp. Crump, C. G. in John Rylands Bulletin, VIII, p. 140.Google Scholar
29 It is to be remembered that many of these findings are in the nature rather of presentments than of what we should call verdicts—statements by persons who were in a position to know the facts, not judgments of the value of evidence.
30 It is only within comparatively recent years that the process of removing them from bulk storage in sacks has been begun.
31 All those I have seen were added in a small hand in the space at the end of an entry on the Plea Roll or in the margin at the same point.
32 The development of a practice of adding, in the bottom righthand corner of a ‘Judicial’ Writ, a reference to the membrane of the Plea Roll where the Court's order for its issue is recorded is interesting evidence on this point. In the case of an ‘Original’ Writ out of the Chancery the name of the Cursitor who issued it will be given in the same place. See some examples in Plate XLI of my Later Court Hands.
33 It includes not only the well-known mia (misericordia) in the margin but the almost equally common addition between lines or in the margin of small notes such as iiij.d. indicating the amount of an amercement.
34 In the case at any rate of the Royal Courts it is very clear that each Plea Roll is regarded primarily as belonging to a particular Justice, though after the lapse of a certain time he may be expected to deliver it up for permanent preservation as a Record.
35 Of Plea Rolls alone the Public Record Office contains over 17,000 drawn from more than 20 Courts: this is without counting the Manorial.