This post is part of our ‘The People and the Law’ Online Symposium, a series exploring early modern English legal sources. Laura Flannigan is a Junior Research Fellow at St John’s College, Oxford University. She works on litigation, society, and politics in late medieval and early modern England. You can follow her on Twitter/X at @LFlannigan17.

Laura Flannigan

Historians often take for granted that the high usage of England’s early modern law courts denotes a widespread ‘law-mindedness’ in that period. Certainly by c.1600 English society was litigious on a scale unprecedented at the time and unrivalled since. But litigating was a complex business. It required an ample personal archive of evidence on which to base a case, and the know-how to appeal to the appropriate court with the correct documentation at the right time. Where few today would automatically know how to go about commencing a lawsuit, our pre-modern forebears were more likely to be legally literate. What did they know about law and its procedures in the midst of the early modern ‘legal revolution’, and how did they know it?

I’ve recently spent time tracing the circulation of legal knowledge through one type of source material: manuscript ‘commonplace’ books. By this I mean not the systematised collections of reading notes curated by learned gentlemen or the alphabetically ordered definitions accumulated by law students, both following humanist traditions of commonplacing. Rather, my focus has been the scrappier, personal notebooks of estate administrators, rural gentry, and urban merchants. These contain everything from astrological diagrams, popular literature, and religious treatises to more personal financial reckonings, instructions for hawking and hunting, medical remedies, and household recipes. At the time of writing this piece I’ve studied twenty such books from the period c.1400 to c.1600, originating from all corners of England – from Hampshire to Northumberland, Norfolk to Somerset.[1]

Their contents validate Christopher Brooks’s sentiment that law ‘provided one of the principal discourses through which early-modern English people conceptualised the world in which they lived’.[2] Several of these manuscripts include among their lists of aphorisms certain pithy observations on judicial processes, like ‘better is a friend in court than a penny in the purse’. Four notebooks from the early sixteenth century contain the same doggerel verse providing advice for those ‘who so will be wise in purchasing’ lands: recommending that they check the ‘seller be of age’ and ‘make thy charter of warrantise to thyn heires & assigneys’. Elsewhere in their notebooks these compilers – themselves often landowners and administrators – copied their own deeds and wrote memoranda about their own lawsuits. Legal information was as useful to have to hand as the financial accounts and domestic recipes recorded on other pages of the same books.

What struck me was the frequency with which these commonplace books served as stores not only of personal notes about law and litigation but as repositories for re-usable legal documentation. Eight of the manuscript books I’ve examined contain what we might term ‘legal formularies’. As one example found in the notebook of the Worsley family from fifteenth-century Nottinghamshire (Cambridge UL MS Ll.1.18) succinctly describes it, these formularies contain ‘Examples of obligations, indentures, and the like’. In a dedicated section or quire of the manuscript they brought together standard examples of the most commonly used administrative documents of the time: indentures confirming arrangements for land; deeds releasing property titles and claims at law; obligations binding disputants to keep the peace against each other; and pleadings for various courts and jurisdictions, among others.

An early, extensive example is the commonplace book of Robert Reynes, a yeoman from the Norfolk village of Acle, written across the late fifteenth century (Bodleian Tanner MS 407). Reynes’s rough formulary contains a series of standard grants, acquittances, and obligations, some naming him as a party but most not. As in examples from other manuscripts, we can be fairly sure these were designed for re-use because names and places are abbreviated, usually into initials (Reynes used the format ‘Johannes H de Acle’ but other writers went further and substituted real names and places for ‘A.B. of C.’). Meanwhile, dating clauses at the end are missing or truncated. At the same time, Reynes supplied several instances of the same type of document, for different configurations of parties – obligations ‘1 to 1’ and ‘2 to 2’, as he titled them. He gives examples in Latin and in English, and even provides singular and plural Latin pronouns above the line, for easy adaptation to different circumstances:

Intriguingly, none of these formularies has a common source, copied from some printed or manuscript text in circulation. Instead, each seems to have been a one-off, curated collection. Where place-names remain in the exemplary documents they clearly point to sources close to the compilers’ homes, aligning with information elsewhere in their respective books. So, all of Reynes’s examples concern people and properties around his native Norfolk – Acle, but also Yarmouth and Norwich – while the aforementioned Worsley book draws on legal forms collected primarily from the collegiate church in Southwell, where that family was based.

Similarly proactive collection of legal forms was going on in the later sixteenth and seventeenth centuries, too. The commonplace book of Roger Columbell of Darley in Derbyshire (BL Add. MS 6702), from the 1580s or later, includes the formula for a release said to be copied from ‘Leonard Bamford’s booke of presidents’. This is just one of many similar provenance notes found across these commonplace books, indicating that compilers accessed the archives of friends and neighbours for their examples. It also implies that even when printed formularies, such as Fitzherbert’s Natura Brevium or Thomas Phaer’s New Book of Presidents, were readily available there still existed some desire for personally curated collections of exemplar documents.

This continuity in exemplar gathering from the fifteenth to the seventeenth century maps onto the period of growing litigiousness. We might even speculate that a legalism grounded in documentary evidence – and disputes over their contents and meanings – engendered more litigation, as much as the other way around. That said, questions remain as to how we read commonplace books as evidence of knowledge. To put it another way: do these formularies reflect the widespread ubiquity of and familiarity with legal documentation by the fifteenth century, or does the impulse to copy available examples speak to continuing ‘exemplar poverty’ in places like Acle, Southwell, and Darley?[3] I have more thinking to do here.

As it stands, these manuscript formularies might be taken to represent one channel by which people became prepared for potential legal encounters: through literate neighbours, who had the formulae of the law to hand and could likely act as scribes, too. But this is one piece in the much larger puzzle of legal literacy and its application.

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[1] These are: The National Archives E 36/198; Bodleian Library Ashmole 750, Tanner MS 407, Lyell MS 35, MS Gough Norfolk 43, and Latin misc. c. 66; Cambridge, Trinity College O.9.38 and O.2.53; Cambridge, Queen’s College MS 34; Cambridge University Library MS Ll.1.18; Yale, Beinecke Library MS 365; British Library Sloane MS 1584, Lansdowne MS 762, Harley MS 2252, and Additional MS 6702; Oxford, Balliol College MS 354; Huntington Library mssHM 60413; Kent Archives U1522/F1; and Columbia University Library, Plimpton MSS 259 and 276.

[2] C.W. Brooks, Law, Politics and Society in Early Modern England (Cambridge University Press, 2008).

[3] To borrow a term from Ralph Hanna, ‘Miscellaneity and Vernacularity: Conditions of Literary Production in Late Medieval England’, in Stephen G. Nicholas and Siegfried Wenzel eds., The Whole Book: Cultural Perspectives on the Medieval Miscellany (University of Michigan Press, 1996), 47.