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1. The Bordesley Charter: A Window on Chancery Procedure?

This month's contributor, Adam Chambers, is Senior Parliamentary Assitant for Penny Mordaunt MP and studying part-time for the Masters in Medieval History at KCL. In this essay Adam makes a convincing case for disparity between the dating of charters and the date of their enrolment as evidence, not of lax clerks or a chaotic system, but of a Chancery in 'impressive control'.

⁋1It is said that historians of the thirteenth century chancery are in danger of ‘getting lost in the rolls’. How reassuring that chancery clerks were apparently subject to the same affliction, for the charter rolls are littered with examples of out of sequence enrolments. Little wonder that clerks surrounded by the detritus of an itinerant office which produced hundreds of writs and letters each week would occasionally err, but from the frequency with which this occurred should we conclude that such mistakes were acceptable at the time, or should we be less content to impugn the chancery’s standards and malign its clerks?

⁋2Living as we do with a lack of contemporary guidance, the potential of a single grant to intimate new probabilities, if not new certainties, about how a king’s patronage was begged, bought and booked should not be dismissed. The alignment across the charter, fine and close rolls of entries connected with the bestowal of woods on the monks of Bordesley Abbey in Worcestershire in 1230 provides a penetrating insight to the chancery at work; a single grant which could help to thin the fog which shrouds aspects of chancery bureaucracy. It is the purpose here to explore what the Bordesley grant tells us about the dating and enrolment of charters, and to reveal how the whole process hinged on the fine. In support of this evidence it will be instructive to consider the charters granted to that consummate courtier Godfrey de Crowcombe, as well as the peculiarities of the 1228-29 charter roll. In so doing it will be possible to exculpate the clerks and see that certain mistakes are indicative of a sophisticated system of account, rather than evidence of a lax scribal service.

⁋3The charter which granted custody of the woods of Holloway, Tuneshal’ and Tardebigge in the king’s wood of Feckenham, Worcestershire, to the monks of Bordesley in 1230 is dated 7 February at Westminster, but is enrolled with another February Westminster charter between entries dated 9 April at Reading. ¹ This might be an error, but the evidence of the other chancery rolls suggests not. The abbot of Bordesley offered 100 marks for the charter in a fine which is dateless, but which sits with other dateless entries between fines of 8 April and 12 April. ² This is mirrored by a letter of instruction on the close roll dated 9 April at Reading. ³ This synchronicity encourages the belief that the ‘data per manum’ clause tells us when the terms of a charter were settled, that its enrolment and issue were contingent on a fine being agreed (saving acts of kingly generosity), and that letters of instruction would then be dispatched. Other grants made in early April 1230 support this supposition. Of the sequence of entries on the charter roll dated 7 April, 9 April, 7 February, 27 February, 9 April, 8 April, 8 April and 10 April, the first, third, fifth, sixth and eighth have letters close dated 9 April - there are no corresponding letters or fines for the others. ⁴ The charters of Stephen de Seagrave (7 April) and Ralph de Neville (9 April) have matching fines among those dateless entries mentioned above; the latter an example of chancery procedure at its smoothest: the fine, the charter and the letter close perhaps made on the same day. To test the validity of this hypothesis the meaning of the ‘data per manum’ clause and the precepts of charter and fine enrolment must be reviewed.

⁋4The ‘data per manum’ clause, including a place and time date and the name of the authorising chancery official, was adopted on the accession of Richard I and subsequently became de rigueur. ⁵ The datary was not honorific but was someone present in the chancery on the stated date, and consequently we can infer that a real action is being referenced. ⁶ A variety of dataries are named during the years of usually absentee chancellors in the reigns of Richard and John, but when Henry III assumed charter-giving power in 1227 Chancellor Ralph de Neville habitually gave the king’s charters. ⁷ Nevertheless, the practice of the datary being present in the chancery, or more accurately with the great seal, still obtained during de Neville’s chancellorship. ⁸ The act of giving a charter was therefore one of accepting responsibility and accountability for it. De Neville’s decision to act as datary should be seen in these terms, not as the advent of an honorific datary or the diminution of administrative transparency or procedural checks on the king.

⁋5Jean Edwards has set out four scenarios which could have informed the date of charters: that of the day the document was delivered – literally ‘given by the hand’; that of the day on which the document was sealed; the date of an instructing warrant or of the day of its receipt in the chancery; and the day on which the terms of the grant were finalised. ⁹ She dismisses the first as engrossments show the date to have been written at the same time as the rest of the document, it being unlikely that beneficiaries would always have been on-hand to take the charter immediately, and as completed charters could remain in the chancery unclaimed; the second because drafts from which engrossments were made bear dates that must be earlier than the date the seal was applied; and the third because there is no evidence to show such a causal relationship in the early thirteenth century. ¹⁰ Sir H.C. Maxwell-Lyte outlined similar possibilities in his seminal work on the great seal, and in a confused passage settled on the agency of warrants and the use of chancery discretion as the origin of dating clauses. Sadly, he rather ignored charters and abandoned the thirteenth century as providing material too ‘scanty’ to draw conclusions. ¹¹ Edwards, though, accepted the fourth of her possibilities: ‘the dating-clause bore witness to the fact that approval had been granted for that charter to be engrossed and issued.’ ¹² David Carpenter comes to the same conclusion in his revisionist piece re-establishing the issue of Magna Carta on 15 June, the date in its ‘data per manum’ clause; ¹³ however, just the approval of the charter’s terms is thus signified. Had the use of ‘data per manum’ been a device unique to Magna Carta then there would be cause to let the matter rest on that testimony alone, but by 1215 the term was entrenched. Carpenter’s argument that Magna Carta was issued on 15 June is convincing, but it depends on circumstantial evidence, the more so because it was never enrolled.

⁋6That the datary cleared a charter for engrossment makes sense, yet we should consider whether that decision alone was sufficiently note-worthy to warrant its use in the dating clause, particularly as the accountability of the datary was guaranteed. Edwards suggests that the date a charter was actually delivered is irrelevant; ¹⁴ however, it is the act of delivering the charter which made it valid. This is tacitly acknowledged by the debate surrounding the issue of Magna Carta, and is evidenced by Edward III’s threat to destroy documents which languished in the hanaper and to cancel their enrolments unless the chancery fees (not to be confused with fines offered to the king) were paid. ¹⁵ Importantly, this shows that the physical charter was inherently linked to the grant, which could not be enjoyed until the parchment proof was collected. ¹⁶ Therefore, the date on which the charter was handed over to the beneficiary could have been usefully applied to a charter, giving a date of commencement for its terms which the date of the chancellor’s authorisation apparently did not; though as we have seen recourse was not made to such a convenient expedient. That unclaimed instruments were sealed means that the date on which the seal was applied was indeed irrelevant. In this context it is remarkable that the day on which a charter was witnessed has been ignored as the possible origin of the date it carried. This rests on whether the witness lists are factual accounts of the councillors attending the king, but the balance of evidence weighs in favour of their verisimilitude.

⁋7Russell’s contention that the lists indicate social status and council seating plans is not germane, but he does show that people present on the witness lists were at court and that those absent from court are not on the lists. ¹⁷ Haskins put the contrary view, citing evidence of letters which sought the consent of the addressees to serve as witnesses, and the substitution by the end of the 1100s of ‘hiis testibus’ for the assertion that witnesses ‘heard and saw’ in royal charters. ¹⁸ It must be said that such letters are not routine and rather indicate that a witness’s assent had to be sought – which undermines the notion of fictitious lists. The change to ‘hiis testibus’ is perhaps evidence of what Michael Clanchy has called the transition ‘from memory to written record’; by 1200 the political class was sufficiently comfortable with written records that it was unnecessary to explain what being a witness meant. ¹⁹

⁋8If the lists were confections we would expect uniformity in entry after entry, especially for like-dated charters, but this is not the case. ²⁰ If witnesses did not personally agree to a charter’s terms it would be pointless for beneficiaries to appeal to them in defence of those terms - yet they did, ²¹ and it is unlikely that councillors would accept accountability in this way for grants they had not approved. If the beneficiary chose the men to serve as nominal witnesses we would expect to see the most significant councillors feature on every occasion - yet they do not. In these respects the Bordesley charter is instructive. It was witnessed by Ralph fitz Nicholas, steward of the household, who put his name to all the charters witnessed at Westminster and Marlborough from 28 January to 5 March 1230, but none of the Reading charters which follow on the roll bears his name. ²² He reappears when the court reaches Portsmouth when once again his name is a constant presence. ²³ The inference must be that when at court fitz Nicholas would act as a witness, and that the perfect sequence adumbrated above is evidence of the witness lists as truthful accounts of which councillors approved charters. In particular, it shows that we can trust the date of the Bordesley charter and that suspicions of irregularity sit rightly with its late enrolment. ²⁴

⁋9A charter’s date should be regarded as the day on which its terms were agreed in council. Authorisation for engrossment, if it were to be given, would be given on the same day; the chancellor was, after all, in and of the council if not yet its nominal head. ²⁵ Though Stamp wrote of the period 1250-65 we should see his description of the ‘king sitting regularly day by day at some definite time to transact business, the ordinary members of the council and the chancellor being present and clerks de precepto in attendance’ as relevant to Henry III’s early majority. ²⁶ In this way the names of the men holding substantive discussions about the distribution of patronage could be recorded accurately.

⁋10That council discussions were not formalities has implications for our understanding of the charter process. Edwards has explained how enrolments could be made from both drafts and engrossments, ²⁷ probably dependent on whether the engrossment had yet been made, but now we can see that engrossment could only happen after the council meeting which explains why the final instruments are typically produced at one sitting. ²⁸ A draft might be prepared ahead of the council session, and if approval were given be placed on a spindle to await enrolment as Cazel thought. ²⁹ What Cazel did not appreciate is that enrolment was contingent on the status of the fine offered for the grant, and it is this which explains how a charter, such as that of the Bordesley monks, is correctly enrolled so much later than it is dated.

⁋11That those petitioning for charters would make an offer of a fine is likely, but it would be incredible if king and council simply accepted it without demur. It seems that in the Bordesley case the king and council were happy to make the grant, but demanded such a price that the abbot had to consider if it could be met. Only when the fine was confirmed were the woods secured and the charter ratified by entry on the roll. In cases where the fine is dated earlier than the charter we can trust that the beneficiary, perhaps on chancery advice, made an acceptable offer at the first, ³⁰ and in cases where the fine and charter are contemporaneous that the beneficiary was able to acquiesce to the council’s demands immediately. The delegate or agent of the Bordesley monks was evidently not invested with the plenipotentiary authority required to proceed without resort to further debate at the abbey.

⁋12It is apt to remember that enrolment was in the interest of both the king and the charter’s beneficiary; the king had a reference of what he had agreed, and the beneficiary had the security of a permanent central record. Unnecessary delay suited neither party. We can dismiss Richardson’s notion of a register of fees owed, ³¹ not least because there is no evidence of entries being crossed off on the settlement of debts, but he is correct that enrolment happened before the charter was issued; as we have seen, sealed and enrolled instruments remained in the chancery pending the settlement of fees. A man who had no difficulty finding the wherewithal to meet these fees was Godfrey de Crowcombe.

⁋13Entered in keeping with the chronology of the rolls, Henry III’s grants to Godfrey de Crowcombe testify that all things being equal enrolments would be made almost immediately following the chancellor’s authorisation, and to the beneficiary’s desire to see this done. ³² Crowcombe, a steward of Henry’s household and regular charter witness, was in a position to see that his charters were registered promptly and the anxiety which caused him to seek confirmation of grants only recently given would likely drive him to follow the process to its conclusion. ³³ That Crowcombe did not have to buy his property grants meant that there could be no possibility of wrangling about a fine to cause delay. ³⁴

⁋14Exceptions to this trend in Crowcombe’s charters are revealing. Carpenter’s suspicion of chicanery on Crowcombe’s part in his acquisition of Sibford Gower is supported by the relevant charter’s late enrolment, ³⁵ and the power struggles of summer 1232 account for another anomaly. ³⁶ His charter of 1 August 1227 is enrolled with another of that date amid a sequence of charters dated 18-22 July, ³⁷ interrupting a passage of almost uniform chronology. ³⁸ Crowcombe’s charter is at the top of the membrane and in a hand distinct from those of July below, which seem to be by the same scribe. ³⁹ The likely explanation is that the chancery had fallen behind and was making enrolments for July in early August. One can imagine that Crowcombe was sufficiently importunate to ensure that his charter was enrolled at once rather in sequence. ⁴⁰ Edwards has identified similar occurrences of advanced dates appearing amid a series of sequential entries; the result of belated enrolments after periods of heavy work. ⁴¹

⁋15This is a pertinent reminder that we must differentiate between procedure and perversion. That scribes apparently worked simultaneously on multiple sheets of parchment and that the roll was probably stitched together only at year’s end explains some of the out of sequence enrolments. The charter roll of 1228-29 has three distinct series of enrolments which sit out of sequence with the rest. That at the head of the roll (membranes 18 and 19) relates to Hubert de Burgh and is a jumbled enrolment of charters dated 8 and 28 November, 10, 12, and 13 December, and 2 January. ⁴² They sit on separate membranes from the entries which follow save for the final entry, as printed, on membrane 18; however, inspection of the original roll shows this to be a later addition stitched to the margin. ⁴³ The second series is for, or concerns, Ralph de Neville. It covers membranes 14 and 15, and the final entry on 16. All are dated 16 November, and sit between entries for 23 January above and 20 January below. ⁴⁴ All the entries seem to be by the same scribe except that on membrane 16 and the final entry on membranes 14 and 15. ⁴⁵ The third is for Joceline de Wells. Once again on separate membranes, all the entries are dated 15 May and it is appended at the very end of the roll. ⁴⁶ The four membranes used are much wider than the rest of the roll and the enrolments are made predominantly by the same scribe with the occasional intervention of others. ⁴⁷ Outside these series the roll maintains a broad chronology.

⁋16There are no relevant fines for the de Burgh or de Neville entries, and tellingly membrane 18 is endorsed ‘Carte Justiciarii’. ⁴⁸ This, with the fact that charters with the same time and place dates as those in all three series are enrolled in their ‘proper’ places, indicates that the ‘personal’ membranes were kept separately from the main enrolments. The dates of the de Burgh charters make their presence at the head of the roll logical, but the placement of the de Neville membranes among January charters when they could have been joined to others of 16 November at the head of membrane 17 is less straightforward. We might speculate that the final entries on membranes 14, 15 and 16 had been recorded together on a separate membrane, but that it was felt meet to condense the sequence when it came to enrolment. The chance availability of space for a single entry at the foot of membrane 16 decided the sequence’s position on the roll, with the outstanding entries added to the exclusively de Neville membranes; this would certainly account for the change of scribe for these three entries.

⁋17It seems that the roll was initially kept in leaf form so that the de Wells charters could be accommodated with their contemporaries but was stitched together in the new regnal year, perhaps to avoid further confusion after the mis-enrolment of a charter of 19 November 1229, which is the last entry on the membrane before those of de Wells. ⁴⁹ Recorded together and separately from the main sequence, the de Wells enrolments are at the end of the roll because, in keeping with the Bordesley pattern, the process was delayed pending confirmation of the dateless fine enrolled in April 1230 which relates to the charter for the manor of Cheddar and other property. ⁵⁰

⁋18Similar evidence that membranes were not stitched together as each was completed is found in the roll of 1231-32, in which near-perfect chronology is achieved if membranes 17 and 18 are switched. ⁵¹ That rolls were ordinarily closed at the end of the regnal year is suggested by the enrolment of a charter of 1227-28 on the roll of 1228-29. ⁵²

⁋19There were, of course, simple mistakes. The grant of Bulwell to Philip Marc and his wife in 1230 was enrolled in error on the patent roll, where it is dated 28 January at Westminster (in chronology on the roll), without a witness list and authorised ‘teste rege’. ⁵³ The entry is crossed out with the explanation ‘Quia aliter in rotulo cartarum’. ⁵⁴ Turning to the charter roll we find the corresponding entry made verbatim, save for the addition of a witness list and a proper ‘datum per manum’ clause with the date 9 January at Lincoln. ⁵⁵ As with the Bordesley Charter the truth of this date is testified by the witness list. In this instance it is the presence of Walter de Evermue on all the charters agreed while the court was at Lincoln on 8 and 9 January 1230 and on none of those made during its stay at Westminster between 27 January and 28 February, amongst which the Marc charter is enrolled, that shows the charter to be dated correctly and enrolled out of chronology. ⁵⁶

⁋20Is it possible that the grant to Philip Marc was initially made by a letter patent which was superseded by a charter? ⁵⁷ Deliberation about the most appropriate instrument could even account for the delayed enrolment of the latter; however, if this was the case one would expect the patent to have been made earlier than the charter, yet as has been stated the patent roll entry is dated 28 January and the charter is accurately dated 9 January. As the former is part of a chronological sequence, notwithstanding a passage of four consecutive late-enrolled December 1229 grants, and the charter is enrolled between entries for 28 January and 1 February, it is reasonably certain that the deletion and correction were executed very shortly after the patent roll entry was made and possibly even on the same day - a notion supported by the corresponding letter close of 28 January. ⁵⁸ This must be telling, and the most likely explanation for the whole episode is that the enrolling clerk was confused by the draft he was using. That the patent and charter roll entries are exactly the same except for the witness list and datary clause indicates that the same draft of terms was used for both enrolments, perhaps the one presented to the council for discussion on 9 January. Consequently, one can speculate with some conviction that on this occasion the witnesses at council and the chancellor’s authorisation were recorded separately from the draft of terms. The enrolling clerk worked through his batch of drafts and made an assumption that the Marc grant, lacking the features of a charter, was a letter patent and used the discretion noted by Maxwell-Lyte to put down the date of the day on which he laboured for want of another. Later in his work he came across the details of the witness list and ‘data per manum’ clause, it could even have been the very next parchment on Cazel’s spindle, and made the correction. There is no reason to suppose that the clerk’s note on the patent roll of ‘Quia aliter rotulo cartarum’ indicates the existence of separate patent and charter instruments, rather it simply refers to the latter in distinction to the patent roll entry.

⁋21This case raises the possibilities that drafts could be sufficiently vague as to permit confusion between patents and charters; that the details from council meetings could have been recorded separately from the charter draft readied ahead of its session; and, that in the absence of a fine to explain a delayed enrolment one might infer the exercise of kingly craft - certainly the king had toyed with Marc’s custody of Bulwell in previous years. ⁵⁹

⁋22It is the frequent lament of historians that there is no ‘Dialogue of the Chancery’. Perhaps we will find it if we stop looking. In the meantime it has been possible to account for anomalies and validate the Bordesley charter procedure. On receipt of a petition or warrant in the chancery a draft would be produced for submission to the council. Chancery clerks would advise the would-be beneficiary on an appropriate fine, and this would be put to the council with the draft. At the council session the king and those councillors attending him that day would either agree the draft and fine as proposed, or revisions would be made. In both cases the terms with which the king and council had pronounced themselves satisfied would be drawn up with the names of those councillors who attended the session and authorised by the chancellor for engrossment, contingent upon the supplicant agreeing to any revised terms. When no changes were necessary and when beneficiaries were able to agree quickly to the council’s revisions, the fine and charter could be enrolled as soon as the pressure of chancery work permitted, which might therefore follow engrossment and the application of the great seal. Should the supplicant have had to consider if he could afford the council’s demands or an agent have been required to put them to an absent master, enrolment of both the charter and the fine would perforce have to wait for confirmation that the terms were indeed worth the cost. The enrolled, engrossed and sealed charter would then remain in the chancery pending the payment of the fees associated with those procedures. This was the work of a Chancery not in chaos or disarray, but impressive control.