English Legal Records

Most European historical documents from before the early thirteenth century have been published, both in facsimile and in translation. Projects begun in the 19th Century have resulted in the publication of most known English rolls and writs through the 12th century. Growth of the bureaucracy starting in the late 1100’s resulted in mountains of documents, in cities and towns large and small, thousands of documents exist that have never been published and are rarely even read. Some collections in important repositories have been arranged and indexed (the index of rolls at the British Public Records Office, for example, is available on the Internet), though the indexing — much of which was also done in 19th century — is not always accurate or complete.

Less than 2000 English documents exist that purport to be from the period before 1066 and many of those are probably later forgeries. We have no real idea how many documents were actually produced before 1066. A few written title documents exist from the Anglo-Saxon period but they are for monastic property. The religious houses wrote the documents themselves and had them signed by the grantor. Property transfers otherwise were memorialized by an object given the grantee by the grantor, sometimes the twig or piece of ground mentioned in law books but often a knife or similar object. (The forgeries mentioned above are themselves old — produced in the couple of centuries after 1066 — which is why it is difficult to verify their dates.)

By comparison, by about 1250 a judge on assize (i.e., riding the circuit) could produce 2000 documents in about six weeks. Most of those have not survived but the fact that we know roughly how many were produced is instructive. By 1200 modern document procedures were beginning to be established — e.g., archiving copies of documents, filing correspondence received, and keeping copies of outgoing correspondence. (Making extra copies is ancient but in Anglo-Saxon England they were stored haphazardly, usually at a church or shrine where other valuable things were kept.)

The use of written title documents increased in the twelfth century. It is hard for us, though, to understand what early users thought of them. To some extent they were seen as equivalents of the twig or knife — an object that helped call to memory the fact of the transfer. (There are even some instances of the writing’s being carved into the object rather than put on parchment, and others of the documents’ being tied to the object.) That is apparently why, early on, the transfer was not valid unless "livery of seisin" (the physical act of handing over the twig or knife or title document) had taken place; that act was still thought of as the important part. In other words, when the written documents appeared they did not replace the traditional acts but merely supplemented them; only gradually did they increase in importance.

This changed over the course of about 200 years. By the latter thirteenth century the king’s law courts had stopped accepting objects as evidence of title; in the early fourteenth century, as we know by looking at comments in court records, the importance of livery of seisin was no longer felt by laymen and had become merely a common-law technicality.

Having records and using them, however, are different things. The notion of using documents for later reference came slowly, in part because filing systems were cumbersome (it is easier for modern scholars to search thirteenth-century documents than it was for thirteenth-century clerks who, when

they did try to find things, often missed them). The famous Domesday Book — listing in detail all the landholdings in England — was completed in the eleventh century but there is little evidence that it was used as a reference until about 200 years later, when there begins to be mention of looking things up in it; before then, the traditional method — namely, having elders in the community testify about who had owned the land — was used.

English legal records were for centuries kept in the form of rolls rather than books. It is not clear why this was since the roll was already an outdated technology. There is some evidence that rolls were used in Anglo-Saxon England and the Normans may have continued the practice after their conquest of England in 1066 in order to maintain an appearance of continuity.

The English rolls were different from those used in antiquity. In ancient rolls individual papyrus "pages," glued together side-by-side to form the roll, were written on in columns across the long side of the page. The English rolls were parchment, written across the short side of the page as we do. The pages were bound together with leather strips in two different styles: "Chancery" style and "Exchequer" style, named for the government offices that favored them. Chancery rolls and law-court records were bound together at the top; Exchequer rolls were bound at the ends.

It took a while, however, for laws to be recorded in a central archive. The pre-literate tradition of having new laws proclaimed by criers continued. For example, no "official version," as we would understand it, of Magna Carta (1215) exists; many written copies were made for criers and sheriffs to use in proclaiming it, several of which still exist, but it was not written onto any government roll.

This is basic to an understanding of how these people thought about law. As is typical of manuscripts, there were differences among the various written copies of Magna Carta. No one copy was more correct or official than another. To us this would be a problem. But the "letter of the law" mattered less to people whose grasp of letters was not strong to begin with. The gist of the law was what was important. A law, in other words, was something other than the form of words used to express it in a particular document.