Feudal England: Historical Studies on the Eleventh and Twelfth Centuries

Chapter XXIV: Conclusion (7)

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1. Lions Robert fitz Roger Cart. Ant. EE. 6
2. Château Gaillard Hugh Bardulf Cart. Ant. EE. 10
3. Château Gaillard Ely Cart. Ant. JJ. 43
4. Château Gaillard Ely Cart. Ant. NN. 26
5. Château Gaillard William Longchamp Cart. Ant. JJ. 46
6. Lire Rievaulx Abbey Rievaulx Cartulary
(Surtees Soc.), p. 308
7. Lire Rievaulx Abbey Rievaulx Cartulary
(Surtees Soc.), p. 308
8. Thomas Basset Hist. MSS., 9th
Report, ii. 404
9. Roche d'Orival Alan Basset Cott. Cart. xvi. 1
(Rymer i. 67)
10. Roche d'Orival Alan Basset Anc. Deeds, Ser. A.
No. 5924
11. Château Gaillard Shaftesbury Abbey Harl. MS. 61, fo. 26
12. Château Gaillard Peterborough Abbey Cart. Ant. EE. 21
13. Château Gaillard Waltham Abbey Cart. Ant. RR. 7 & 8
14. Château Gaillard Roger de Sancto Manveo Cart. Ant. BB. 6
15. Château Gaillard Fontevrault Cart. Ant. F. 1
16. Lions St Leonard's, Stratford Add. MS. 6, 166,
fo. 341
17. Château Gaillard Stratford Langthorne Abbey Cart. Ant. E. 1
18. Château Gaillard St Jacques de Boishallebout Add. Cart. (Brit.
Mus.) No. 3
19. Château Gaillard Boxley Abbey Cart. Ant. Q. 8
20. Château Gaillard St Alban's Abbey Ancient Deeds,
A. 1050
21. Château Gaillard Tynmouth Priory Cart. Ant. BB. 18
22. Château Gaillard Llanthony Abbey Cart. Ant. B. 26
23. Lions The Templars Deville's Transcripts
24. Lions Church of Durham Surtees Soc., vol.
IX. p. lvi.
25. 'Sanctum Ebruskum' Domus Dei (Southampton) Cart. Ant. D. 30
26. Cahagnes Spalding Priory Add. MS. 5844, fo. 228
27. Château du Loir Gilbert fitz Roger Hist. MSS., 10th
Report, 325
28. Chinon W. Briwerre Great Coucher II.
1, 67 IV. (1, 2)
29. [No place] Noel 'serviens' Cart. Ant. D. 30

[Footnote 1: Canon Raine, _Historiæ Dunelmensis Scriptores
Tres_ (Surtees Soc.), p. 379.]

[Footnote 2: Speed's History (1611).]

[Footnote 3: _Const. Hist._, i. 506.]

[Footnote 4: _Norman Conquest_, v. 693. Compare _The Office of
the Historical Professor_, pp. 16, 17: 'In a long and careful
study of the Bishop of Chester's writings ... I have never
found a flaw in the statement of his evidence. If I have now
and then lighted on something that looked like oversight, I
have always found in the end that the oversight was mine and
not his.']

[Footnote 5: _England under the Angevin Kings_, ii. 343.]

[Footnote 6: I have been able to identify this very charter.]

[Footnote 7: This is the only confirmation I have found later
than March 3. If the date can be relied on, it is of special
interest as being the day before the king died.]

[Footnote 8: Charters to W. Briwere, June 22, 1190, and March
11, 1199 (1198-9), transcribed in the Great Coucher (Duchy of
Lancaster).]

[Footnote 9: Dr Stubbs, indeed, writes, as we have seen, that
'the seal that was now broken must have been the one which the
chancellor had used during the king's absence'. But Longchamp
had been ejected from the chancellorship in October 1191,
whereas Richard limits the period of abuse to the duration of
his captivity, which did not begin till December 20, 1192.]

[Footnote 10: _The Great Seals of England_ (Stock), p. 149.]

[Footnote 11: Its impression is attached to a charter tested
at Tours, now at Lambeth Palace. If the date of this charter
is correctly given, it is an important contribution to the
Itinerary of Richard.]

[Footnote 12: _Ibid._, p. 19.]

[Footnote 13: It is singular that Mr Wyon, while giving these
_data_, should himself assign the change to '_circ._ 1197',
and still more singular that he should elsewhere (p. 20)
accept the usual passage from Hoveden (iii. 267).]

[Footnote 14: Miss Norgate (1194), ii. 343.]

[Footnote 15: _Annales Monastici_, ii. 251.]

[Footnote 16: _Ibid._, iv. 389 (Vespasian E, iv.).]

[Footnote 17: Faust A. 8. fo. 136. It is a striking instance
of the confusion and blundering to be met with even in our
best chronicles that M. Paris (_Chron. Maj._, ii. 356) has
an independent allusion to the king's change of seal (as
a 'factum Ricardi regis enorme') in which he gives us a
circumstantial account of the event and of the prior of St
Alban's going over to France to secure the confirmation, 'cum
effusione multæ pecuniæ et laboris', but assigns it to the
year 1189. Hoveden's error pales before such a blunder as
this, which has been accepted without question by the learned
editor, Dr Luard.]

[Footnote 18: Hoveden, by placing it wrongly (p. 66) _after_
Hubert's resignation (p. 48), to which it was some two months
previous, has misled Miss Norgate into the belief that it was
the work of his successor, Geoffrey.]

[Footnote 19: Stubbs' _Hoveden_, iv., xxxii.]

[Footnote 20: _Ibid._, p. xxv.]

[Footnote 21: _Ibid._, p. xxxi.]

[Footnote 22: iii. 276. This distinctly implies that the truce
had been nominally in full force. Note that it is here spoken
of as '_till_ All Saints', while in the document itself (iii.
259) it is made for a year _from_ All Saints. Miss Norgate
(ii. 367) speaks of it as 'till All Saints' (1195), but I
think it was made from July 1194 to All Saints 1195.]

[Footnote 23: I have not found a single charter of municipal
liberties, though the reign was so rich in them, among these
confirmations. Nor since this article first appeared, in
1888 (_Arch. Rev._, vol. i.), have I found more than four
additional cases of resealed charters, raising the total
to twenty-eight. Of these a detailed list is given on pp.
442-15.]

[Footnote 24: 'Scilicet die secunda coronationis nostræ.']

[Footnote 25: 'December' in Cart. Ant., which date is accepted
in Gibson's 'Monastery of Tynmouth'.]

COMMUNAL HOUSE DEMOLITION

There was a strange custom peculiar to the ancient community of the Cinque Ports, which has not, so far as I know, been found elsewhere in England. If a member of any one of these towns was elected to serve as Mayor or 'Jurat' (the governing bodies consisting of a Mayor and twelve 'Jurats'), and refused to accept the office, his house was publicly demolished by the community. An extract from the Custumal of Sandwich, headed 'Pena maioris electi recusantis officium suum', will make the custom clear:

Si maior sic electus officium suum recipere noluit, primo et
secundo et tercio monitus, tota communitas ibit ad capitale
messuagium suum, si habuerit proprium, et illud cum armis
omnimodo quo poterit prosternat usque ad terram.... Similiter
quicunque juratus fuerit electus, et jurare noluerit, simile
judicium.[1]

Although the custom of house demolition is apparently, as I have said, peculiar in England to the Cinque Ports, it was of widespread occurrence abroad. Thither, therefore, we must turn our steps in order to investigate its history.

It is in Flanders and in Northern France, and in Picardy, most of all, that we find this singular custom prevailing, and discover its inseparable connection with the institution of the _Commune_. It would seem that the penalty of house demolition was originally decreed for offences against the _commune_ in its corporate capacity. Thierry, basing his conclusions mainly on the charters of the _commune_ of Amiens and the daughter-charter of Abbeville writes:

Celui qui se soustrait à la justice de la Commune est puni
de banissement, et sa maison est abattue. Celui qui tient
des propos injurieux contre la Commune encourt la même peine.
Voilà pour les dispositions communes aux chartes d'Amiens et
d'Abbeville, c'est-à-dire pour celles qui authentiquement sont
plus anciennes que l'acte royal de 1190. Si l'on ne s'y arrête
pas et qu'on relève dans cet acte d'autres dispositions,
probablement primitives aussi, on trouvera les peines du crime
politique, _l'abatis de maison_ et le banissement, appliquées
à celui qui viole sciemment les constitutions de la Commune et
à celui qui, blessé dans une querelle, refuse la composition
en justice et refuse pareillement de donner sécurité à son
adversaire.

Une peine moindre, car elle se réduit à ce que la maison du
délinquant soit abattue s'il n'aime mieux en payer la valeur,
est appliquée à celui qui addresse des injures au Maire dans
l'exercice de ses fonctions, et à celui qui frappe un de
ses Jurés devant les magistrats, en pleine audience. Ainsi
l'abatis de maison, vengeance de la Commune lésée ou offensée,
était à la fois un châtiment par lui-même et le signe
qui rendait plus terrible aux imaginations la sentence de
banissement conditionnel ou absolu. Il avait lieu dans la
plupart ... des communes du nord de la France avec un appareil
sombre et imposant; en présence des citoyens, convoqués à
son de cloche, le Maire frappait un coup de marteau contre
la demeure du condamné, et des ouvriers, requis pour service
public, procédaient à la démolition qu'ils poursuivaient
jusqu'à ce qu'il ne restât plus pierre sur pierre.[2]

The public character of the ceremony, which was no less marked at Sandwich (_vide supra_), is well illustrated in the _Ordonnances_ of Philip of Alsace (_circ._ 1178) on the powers of his _baillis_ in Flanders:

Domus diruenda Judicio Scabinorum, post quindenam a scabinis
indultam, quandocunque comes præceperit, aut ballivus ejus,
diruetur a communia villæ, campana pulsata per Scabinos; et
qui ad diruendam illam non venerit, in forisfacto erit, etc.,
etc.

This ringing of the communal bell--parallel to the moot-bell of England--is an important feature in the matter. Without insisting upon a stray allusion, one may ask whether an entry in the Colchester records in the sixteenth century, threatening that if an offending burgess does not make amends, the town will 'ring him out of his freedom', may not be explained by this practice.

There are plenty of other early instances of this house demolition in recognized _Communes_. At Bruges we read (_circ._ 1190): 'Si scabini voluerint domum eius prosternere, poterunt', etc., etc. So, too, at Roye, the charter (_circ._ 1183) provides: 'Domus forisfactoris diruetur si Major voluerit, et si Major redempcionem accipiet de domibus diruendis', etc., etc.... 'Si quis extraneus ... forisfactum fecerit ... Major et homines ville ad diruendam domum ejus exeant; quæ si sit adeo fortis ut vi Burgensium dirui non possit, ad eam diruendam vim et auxilium conferemus'.[3] So essential was the power of distraint, as we might term it, given to the community over its members, by the possession of a house, that it was sometimes made compulsory on a new member to become possessed of a house within a year of his joining. This was the case at Laon, one of the oldest of the _Communes_, the charter of Louis VI (1128) providing that 'Quicunque autem in Pace ista recipiatur, infra anni spatium aut domum sibi edificet, aut vineas emet ... per que justiciari possit, si quid forte in eum querele evenerit'. Where, in the absence of such provision, the culprit had no house to be demolished, it would seem that, in some cases, he had to procure one, for the express purpose of being demolished, before he could be restored to his membership. Thus, at Abbeville, the charter of _Commune_ provides that 'si domum non habuerit, antequam villam intret, domum centum solidorum, quam communia prosternat, inveniet'.

Thierry pointed out how the 'commune' of north-eastern France found its way, through its adoption in Normandy, to the opposite corner of the country 'sur les terres de la domination Anglaise'.[4] The form 'jurats' adopted by the Cinque Ports for the members of their governing body suggests, indeed, some connection with Gascony, to which region, as Thierry observed, it more especially belongs.[5] I was much struck, when visiting Bayonne, with its interesting municipal history. Thierry alludes to its peculiar character;[6] and, as the town had commercial relations with the Cinque Ports, and illustrates, moreover, the tendency of a commercial port to adopt, from other regions, a constitution peculiar to itself, I shall here give from its local customs the provisions as to house demolition.

Appended to John's charter granting a _communa_ to Bayonne (April 19, 1215) we find a code of communal ordinances based partly on those in the Rouen and Falaise charters and partly on the customs of La Rochelle. In this code the penalty of destroying the offender's house was decreed for a magistrate who accepted bribes,[7] for a citizen who shirked his military service,[8] for a perjured man,[9] for a thief.[10]

It again appears as the penalty for receiving bribes in the local Custumal assigned to 1273: 'La soe maison sera darrocade, et que jameis ed ni son her no hage juridiccion en le communi.' In the foundation-charter granted to Sanabria by Alphonso IX of Leon, in 1220, we find this penalty similarly assigned to perjury ('que la su casa sea derribada por esta razon'); but when the charter was altered by Alphonso X (September 1, 1258), the penalty was commuted for a pecuniary fine of sixty 'sueldos', on the ground that the destruction of the house was an injury to the city and to himself.[11] This is important as affording an instance of the actual introduction of commutation.

Now, my contention is that, as the practice of communal house demolition wandered down into Gascony, and thence actually crossed the Pyrenees into Spain, so--in the opposite direction--it crossed the channel and established itself in the Cinque Ports. As these movements become better understood, we are learning to treat them scientifically, and to trace them through their growth to their origin. In the case of the _commune_, the principle of filiation enables us to accomplish this with remarkable success.

But, it may be asked, is there any instance, on the other side of the channel, of house demolition being the penalty prescribed for refusal to accept office as Mayor or Jurat? It is, I reply, at Amiens the very penalty prescribed for that offence! The Custumal of Amiens contained these two clauses:

Et convient que chis qui pris est faiche le serment de le
mairie; et se il ne veult faire, on abatera se maison, et
demourra en le merchy du roy au jugement de esquevins.

Derekief se li maires qui eslus seroit refusoit le mairie et
vausist souffrir le damage, jà pour che ne demouerroit qu'il
ne fesist l'office; et se aucuns refusoit l'esquevinage, on
abateroit sa maison et l'amenderoit au jugement de esquevins,
et pour chou ne demoureroit mie que il ne fesist l'office de
l'esquevinage.[12]

Thierry, who was ignorant of the Cinque Ports custom--as the historians of the Cinque Ports appear to have been ignorant of that at Amiens--describes this provision as 'loi remarquable en ce qu'elle faisait revivre et sanctionnait par des garanties toutes nouvelles ce principe de la législation romaine, que les offices municipaux sont une charge obligatoire'.[13] But this brings us face to face with the difficult and disputed question of the persistence of Roman institutions. Personally, I have always thought it rash to accept similarity as proof of continuity. Here, for instance, the occurrence of this practice at Sandwich might lead to the inference that the institutions of Sandwich were of direct Roman origin. Yet, if this practice was imported from France, we see how erroneous that inference would be. A _reductio ad absurdum_ of this rash argument, as I have elsewhere pointed out, would be found in the suggestion that every modern borough rejoicing in the possession of aldermen had derived its institutions continuously from Anglo-Saxon times. In the particular instance of this practice, we should note that it occurs (_a_) in that portion of France where the municipal development was least Roman in character; (_b_) in a peculiar and original form--the 'garanties toutes nouvelles' of Thierry.

Again, we find the infliction of fines for non-acceptance of municipal office a familiar custom in England even to the present day. These fines were undoubtedly commutations for an original expulsion from the community; and at Colchester, for example, we have a case of a man being deprived of 'his freedom' for declining the office of alderman, and of his having to make 'submission' and pay a fine before it was restored. The fact is, that in every community, whether urban or rural, where office was a necessary but burdensome duty--like modern jury-service or mediaeval 'suit'--a penalty had to be imposed upon those who declined to discharge it. The peculiarity of the Sandwich and Amiens cases consists not in the imposition of a penalty, but in the character of the penalty imposed.

Pass we now from the consideration of this penalty to the wider and important conclusions suggested by its local occurrence.

I have always been puzzled by the peculiar phenomena presented by the 'Cinque Ports' organization. To other writers it would seem to present no such difficulty; but to me it is unique in England, and inexplicable on English lines. In that able monograph of Professor Burrows,[13] which is the latest contribution on the subject, the writer, I venture to think, leaves the problem as obscure as ever. I shall now, therefore, advance the suggestion, which has long been taking form in my mind, that the 'Cinque Ports' corporation was of foreign origin, and was an offshoot of the communal movement in Northern France.

From Picardy, which faced the Cinque Ports, they derived, I believe, their confederation. To quote Thierry:

La région du nord, qui est le berceau, et pour ainsi dire la
terre classique des communes jurées, comprend la Picardie,
l'Artois, etc.... Parmi ces provinces, la Picardie est celle
qui renferme le plus grand nombre de communes proprement
dites, où cette forme de régime atteint le plus haut degré
d'indépendance et où dans ses applications, elle offre le plus
de variété. Les communes de Picardie avaient en général toute
justice, haute, moyenne et basse. Nonseulement dans cette
province les chartes municipales des villes se trouvaient
appliquées à de simples villages, dont quelques-uns n'existent
plus, mais encore _il y avait des confédérations de plusieurs
villages ou hameaux réunis en municipalités sous une charte et
une magistrature collectives_.[14]

Let me briefly summarize the arguments on which I base my hypothesis:

(1) There is no parallel to the Cinque Ports confederation in England,[15] but there is in Picardy.

(2) The very name 'Cinque Ports' betrays a foreign origin,[16] as does the fact that the oath taken by the King's Warden to the Corporation was termed, not an oath, but a 'serement' (as in France).

(3) The English Merchant-Guild[17] and the English 'Alderman'[18] were unknown to the Cinque Ports constitutions; but they all possessed the typical constitution of the _communes_ of Northern France, namely a Mayor, with a Council of twelve, these twelve councillors having the French name of _Jurats_.[19]

(4) In the Cinque Ports, as in the French _Communes_, we find side by side with this elective administration, a royal officer, with us a Warden, with them the _Sénéchal_ (or _Prévôt_ or _Bailli_) _du Roi_.

(5) The very same penalty of house demolition for refusal to accept office as Mayor or Jurat was exacted in the Cinque Ports (and nowhere else in England) as at Amiens.

I do not contend that the French 'commune' was adopted intact by the Cinque Ports, for, of course, it was not so. In the matter of names alone, they are not styled a 'commune', nor are the members of their community termed 'jurés' (_jurati_), but 'barons' (_barones_). The study, however, of the 'commune' in France itself reveals the adaptation to environment it underwent on transplantation. And, the salient feature of the Cinque Ports organization, the fact that they formed a single community, possessing a single assembly, and receiving a joint charter, is paralleled most remarkably in the joint 'communes' of Picardy, containing from four to eight separate 'Vills'.[20]

It would be very satisfactory if the French 'communes' could throw light on the obscure title of 'barons' appertaining to the men of the Cinque Ports, and to them, I maintain (against Professor Burrows), alone among English burgesses. I have elsewhere shown that there is evidence of the use of this term at an earlier period than is supposed, viz., in the early years of Stephen;[21] but on its origin the 'commune' throws no light. One can only quote the parallel afforded by the 'commune' of Niort, and this is taken from a late document (1579). Its officers are said to hold of the King 'à droit de baronie, à foi et homage-lige, au devoir d'un gant ou cinq sols tournois, pour tous devoirs, payables à chaque mutation de seigneur'.[22] This 'devoir' is parallel, it will be seen, to the 'canopy-service' (or 'Honours at Court') of the Cinque Ports, rendered as it was, in practice, 'à chaque mutation de seigneur'. It is noteworthy that a French royal charter of 1196 contains the clause: 'prefati quatuor ville exercitum et equitationem novis debent _sicut alie communie nostre_';[23] but one can scarcely connect this with the naval service of the Cinque Ports. Yet it was part, undoubtedly, of the communal principle that the 'commune' should hold directly of the King, and not of any mediate lord, and this principle would explain the style 'barones regis' applied to the men of the Cinque Ports.

To sum up, there are features about the Cinque Ports organization which can only be accounted for, it seems to me, by the hypothesis here advanced. If this novel solution be accepted,[24] a question at once arises as to the date at which this communal confederacy was established. From what we know of the origin of the 'commune', we can scarcely believe in its adoption here till a generation, at least, after the Conquest. 'Only the least informed and most sceptical,' writes Professor Burrows, 'have placed the act of incorporation later than the date of the Conqueror',[25] but a wider knowledge of municipal institutions would lead to the opposite conclusion. It is possible that the reign of Henry I may have witnessed the superimposing of a communal confederacy on the existing institutions of the several ports; it is impossible, at any rate, to trace it in Domesday, and difficult, indeed, to reconcile with its existence the evidence afforded by the Great Survey. It is conceivable that the position already attained, in the Conqueror's days, by Dover, may have served as a model for the other Ports, when they learnt the power of the principle that lay at the root of the _commune_--'L'union fait la force'.[26]

[Footnote 1: Boys' _Sandwich_, p. 431.]

[Footnote 2: _Monographie de la Constitution communale
d'Amiens_ (_Essai sur l'Histoire ... du Tiers-Etat_, pp.
347-8). The charter of Abbeville prescribed this penalty
('domus ejus et omnia ad ejus mancionem pertinentia
prosternantur') for homicide, which lies outside the class of
'political offences'. Giry, in his _Etablissements de Rouen_
(1883), speaks of the 'abattis de maison' as 'caractéristique
du droit municipal du Nord' (i. 431), but I do not find that
he anywhere mentions it as the penalty appointed for refusing
office.]

[Footnote 3: _Recueil des Ordonnances des Rois de France_,
xi., p. 228.]

[Footnote 4: So also p. 263, where he calls attention to
'l'établissement de la constitution communale de Rouen et de
Falaise dans quatre des provinces annexées au XII^{e} siècle à
la domination anglo-normande'; and to 'cette adoption de la
commune jurée selon le type donné par les grandes villes de la
Normandie, événement auquel contribua sans doute la politique
des rois d'Angleterre'.]

[Footnote 5: 'À Bordeaux ... le principal titre de
magistrature était celui de Jurats, titre qu'on retrouve dans
une foule de villes, depuis la Gironde jusqu'au milieu de la
chaîne des Pyrénées' (p. 247).]

[Footnote 6: 'Au milieu de cette unité d'organisation
administrative et judiciaire la ville de Bayonne se
détache, et contraste avec toutes les autres. On la voit, au
commencement du XIII^e siècle, abandonner le régime municipal
indigène et chercher de loin une constitution éstrangère,
celle des communes normandes, transportée et perfectionée
dans les villes du Poitou et de la Saintonge; c'est une double
cause, la suzeraineté des rois d'Angleterre étendue de la
Normandie aux Pyrénées, et le commerce d'une ville maritime,
qui amène ainsi aux extrémités de la zone municipale du Midi
la commune jurée dans sa forme native, avec toutes ses règles
et ses pratiques' (p. 249).]

[Footnote 7: 'La soe maizon, so es del marie o d'aquet quiu
loguer aura pres, sera darrocade seins contredit.']

[Footnote 8: 'E en merce de la comunie, de sa maizon
darrocar.']

[Footnote 9: 'Sera en merce dou maire e dous pars de sa maizon
darrocar.']

[Footnote 10: 'La maison ons ed estaue sera abatude per les
justizies de la comunie.']

[Footnote 11: 'Ca esto tornarie en dano de Nos e de la nuestra
Puebla.' (_Boletin de la real Academia de la Historia_,
October 1888.)]

[Footnote 12: 'Ancienne Coutume d'Amiens' (_Recueil des Monum.
ined. de l'Histoire du Tiers-Etat_, I. pp. 159, 160).]

[Footnote 13: He refers us to the Theodosian Code. Lib.
XII, tit. 1, 'de decurionibus', and D., Lib. I, tit. 4, 'de
muneribus et honoribus'.]

[Footnote 13 (sic): _Cinque Ports_ (Historic Towns Series), by
Montagu Burrows.]

[Footnote 14: _Essai sur l'Histoire du Tiers-Etat_, p. 240.
(The italics are my own.)]

[Footnote 15: The Danish 'Five Boroughs' stand apart, as a
temporary confederation, the character of which we do not
know.]

[Footnote 16: Professor Burrows makes light of this name,
asserting that 'it is hard to say when the French form came
into common use' (p. 56). But 'the five Cinque Ports', which
he admits to be the correct style, is a pleonasm which proves
the 'Cinque' to be older than the 'Five'.]

[Footnote 17: 'London and the Cinque Ports stand isolated
from their fellows in the common absence of the institution'
(Burrows, p. 43).]

[Footnote 18: 'The same may be said of the office of
"Alderman" ... The term seems to be only accidentally, if not
erroneously, used' (_ibid._, p. 44).]

[Footnote 19: The mayor and his twelve _pairs_, _jurats_
(or _jurés_) or _échevins_, were an essential feature of the
_commune_, and spread with the communal movement.]

[Footnote 20: _Recueil des Ordonnances des Rois de France_,
xi. 231, 237, 245, 277, 291, 308, 315. The text must now be
modified in the light of my further criticism, in the next
paper, of the early date alleged for the confederation of the
Ports.]

[Footnote 21: This was written in reliance on the statement by
Mr Howlett (_Chronicles of the reigns of Stephen, Henry II
and Richard I_, vol. iii., p. xl) that an interesting writ he
quoted from 'the cartulary of St Benet-at-Hulme' was 'safely
attributable to the year 1137'. It is a writ of Robert, Earl
of Leicester, acting as justiciary, and 'gives', says Mr
Howlett, 'a clear idea of the Earl's position at the opening
of the reign'. As he has made himself master of the period,
and has specially studied its manuscript sources, I accepted
his assurance without question. But as it subsequently struck
me that such a writ was more likely to be issued by the Earl
when justiciary under Henry II, I referred to the cartulary
and found that the writ contained the words 'avi regis',
proving it, of course, to belong to the reign, not of Stephen,
but of Henry II:

'R. Com(es) leg(recestriæ) Baronibus regis de Hastingg' salutem.
Precipio quod abbas et monachi de Hulmo teneant bene et in pace
et juste terras suas in Gernemut ... sicut eas melius tenuerunt
tempore Regis H. _avi regis_ ... T. R. Basset per breve
regis de ultra mare' (Galba E. 2, fo. 33_b_).

We can only, therefore, say of its date that it is previous to
the Earl's death in 1168. In any case, however, it is of much
interest as connecting Yarmouth with Hastings alone, not, as
alleged, with the Cinque Ports as a whole. This is in perfect
accordance with the fact that John's charter to Hastings in
1205 duly mentions its rights at Yarmouth, of which there is
no mention in his charters to the other ports.

I have noted in this same cartulary, and on the same page, an
interesting confirmation by Henry II to the Abbey of the land,
'quam lefwinus et Robertus presbyteri et Bonefacius et ceteri
barones mei de Hastingges eidem ecclesie dederunt in Gernemut'
apud Den ... Test' Thom' cancellario. Apud Westmonasterium'.
The name of Thomas fixes the date as not later than 1158.
In the charters of 1205, the people of Hastings are styled
'barons', but those of the other ports only 'homines'.]

[Footnote 22: This represents the 'esporle' of South-Western
France (cf. p. 243, n. 278).]

[Footnote 23: _Recueil_ (_ut supra_), xi. 277.]

[Footnote 24: I can find no trace of it in Professor
Burrows' careful _résumé_ of the factors in the Cinque Ports
organization.]

[Footnote 25: _Cinque Ports_, p. 56.]

[Footnote 26: Professor Burrows is very severe on those who
question the alleged charter of Edward the Confessor to the
Ports and 'the sweeping franchises' that it conferred (pp.
55-6, 59). But the sole evidence for its alleged existence is
the charter of 1278, which does not even, I think, necessarily
imply it. For the allusion to the liberties the Ports
possessed in the days of Edward and his successors might well
be taken from such a charter as that of Henry II to Lincoln,
in which he grants to the citizens all the liberties 'quas
habuerunt tempore Edwardi et Willelmi et Henrici regum
Anglorum'. This does not imply that those kings had granted
charters.

[The result of my further investigation has been to develop
much further the position here _Arch. Rev._, December 1889,
adopted, and to modify accordingly the closing paragraph in
the text.]]

THE CINQUE PORTS CHARTERS

I have allowed the preceding paper to stand as it was written, in spite of the rejoinder by Professor Burrows, entitled, 'The Antiquity of the Cinque Ports Charters'.[1]

So far as regards my French analogies, Professor Burrows adopts the argument that I have not proved a parallel sufficiently close and complete. But this does not meet my contention: (1) that in the Cinque Ports organization we find peculiar words and things; (2) that these peculiarities are not found elsewhere in England; (3) that they are found in France. Admitting, however, that 'the earliest title is Norman French', the Professor urges that Edward the Confessor was a 'half-Norman king', and that 'nothing is more likely than that he should grant his charter to the Confederation under a Norman name'.[2]

This brings us at once to Edward's alleged charter; and, indeed, my critic recurs at the outset to his belief in 'the Ports having been chartered as a Confederation by Edward the Confessor' (p. 439). At the close of the article he reminds us again that he 'accepted the charter of Edward the Confessor as a faithful landmark, and showed how the history of our early kings and their institutions appeared to coincide with the statement'. But he adds that 'if proof can be brought against the issue of such a charter', he will be 'the first to recognize it'.

It is curious that my critic cannot perceive what must be obvious to all those who are familiar with 'the history of our early kings and their institutions', namely that the _onus probandi_ rests, not, as he alleges, on those who question, but on those who maintain the startling proposition that Edward the Confessor issued such a charter of incorporation. Nothing short of proof positive could induce us to accept so unheard-of an anticipation of later times. That proof Professor Burrows claims to find in the great charter of Edward I to the Ports. He contends that, according to this document, Edward 'saw' the Confessor's charter,[3] and blames me for omitting its statement to that effect (p. 443). Unfortunately he quotes the words, as indeed he had done in his book, from an English translation only, and that a misleading one. The actual words (as given by Jeake), confirms to the Ports their liberties as held:

temporibus Regum Angliæ Edwardi, Willelmi primi et secundi,
Henrici regis proavi nostri, et temporibus Regis Richardi
et Regis Johannis avi nostri et Domini Henrici Regis patris
nostri per cartas eorundem, sicut cartæ illæ quas iidem
Barones nostri inde habent, et quas inspeximus, rationabiliter
testantur.

In this peculiar wording we notice two points: (1) that it divides the kings into two groups, and that Henry II is placed in the first group, not, as we should expect, with his sons; (2) that Edward does not say that he has 'inspected' charters of all the kings named, but only 'cartæ _illæ_ quas iidem Barones nostri inde habent'.[4] I claim, therefore, to read the words as not implying that Edward had actually seen any charter older than that of Richard, whose name heads what I have termed the second group of kings. It is noteworthy that Richard's is the earliest charter of which the contents are known to ourselves.

But let us see how the matter stands with reference to previous charters. Professor Burrows holds that the form of Edward I's charter 'certainly supposes that the former charters were granted' also to the Ports collectively.[5] Indeed, he 'need not point out', we read, 'that the charters referred to are charters to the Confederation, not to separate Ports' (p. 444). Where do we find them? 'That the charter of Henry,' we are told (p. 439), 'which we know about from those of his sons, has no more survived than those of his predecessors, has always seemed to me an argument of some weight.' But no charter of Henry II to the Confederation is spoken of by his sons. We have in the _Rotuli Chartarum_ what Professor Burrows terms, 'the series of six charters, dated June 6, and 7, 1205'. Each Port on this occasion received a separate charter, and in each case reference is made to that Port's charter from Henry II. Of a collective charter we hear nothing. Nor are John's charters even identical in form: to quote once more Professor Burrows:

It should also be noted that the franchises of Sandwich are
to be such as the town enjoyed in the reigns of 'William and
Henry'; of Dover, as in that of Edward'; of Hythe, as in those
of 'Edward, William I, William II, and Henry'.[6]

And in none of them is any charter mentioned earlier than that of Henry II.

These charters of John are most important, but have not, so far as I know, received scientific treatment. The charter to Hastings is in many ways distinct from the others. It alone speaks of the 'Honours at Court', the rights at Yarmouth, and the ship-service due, and alone mentions that this service was rendered 'pro hiis libertatibus'. The charter to Rye and Winchelsea is modelled on that of Hastings, and neither of them goes back beyond the charter of Henry II. The charters to Dover and to Hythe, it will be found, are closely parallel, and in both cases the privileges are to be enjoyed as in the times of Edward, William I, William II, and Henry (I). Sandwich has her liberties confirmed as in the days of Henry I, King William, 'and our predecessors'; Romney as in the days of Henry I.

If it be urged that the rights of Yarmouth, though only specified in the Hastings charter, were included under general liberties in the charters to the other Ports, I appeal, in reply, to that writ of Henry II[7] which treats the Barons of Hastings alone as possessing authority at Yarmouth. The charter and the writ confirm one another.

We see, then, that when we interpret the great charter of Edward I to the Ports (1278) in the light of evidence, not of supposition, we find that Henry II and John did grant separate charters to the different Ports as to other towns (not a collective charter to them all), and that these therefore must have been the charters referred to in the general confirmation of 1278. In other words, it was Edward I, not Edward the Confessor, who granted the first 'Charter to the Confederation', as a whole. Utterly subversive though it be of Professor Burrows' view, this is the only conclusion in harmony with the known facts.

Thus the sole result of examining my critic's evidence is to make me carry my scepticism further still. I now hold that even so late as the days of John, the Ports had individual relations to the crown, although their relations _inter se_ were becoming of a closer character, as was illustrated by the fact that their several charters were all obtained at the same time. Hastings alone, as yet, had rights at Yarmouth recognized: hers were the only portsmen styled 'barons' by the crown.

It is always, in these matters, necessary to bear in mind that the local organization was apt to be ahead of the crown, and that communal institutions and municipal developments might be winked at for a time to avoid formal recognition. In this way I believe the rights and privileges belonging in strictness to Hastings alone were gradually extended in practice to the other ports. There is, for instance, a St Bertin charter granted by the so-called 'barons of Dover', although the formal legend on their seal styles them only 'burgesses'. The portsmen may all in practice have been loosely styled 'barons', even though Hastings alone had a special right to that distinction. Professor Burrows speaks of 'its acknowledged claim to be the Premier Port of the Confederation' as 'a circumstance of the greatest significance in our inquiry',[8] and here I entirely agree with him. But I cannot think his explanation of that pre-eminence in any way satisfactory. He lays great stress on 'the identification lately established beyond any reasonable doubt between the town in the Bourne valley and the "New Burgh" of Domesday Book'. I have searched long and in vain for this identification, but, whether it be accepted or not, it throws no light on the old town, the King's town, of Hastings.[9]

The importance of Hastings before the Conquest is shown not only by the action of its ships in 1049, but also by its possessing a mint. Yet the only mention of this town in Domesday is the incidental entry that the Abbot of Fécamp had 'in Hastings' appurtenant to his Manor of Brede, 'iiii. burgenses et xiiii. bordarios'.[10] One is fairly driven to the bold hypothesis that Hastings, which ought to have figured at the head of the county survey (as did Dover in Kent), was one of the important towns wholly omitted in Domesday.[11] The fact that its ship-service, when first mentioned, was as large as that of Dover is a further proof of its importance.

The geographical position of Hastings also severs its case, as widely as do its privileges, from those of the Kentish ports. It is therefore difficult to resist the impression that the distinction in John's charter had a real origin and meaning. The 'barons' of Hastings were, I believe, the men of the _King's_ town (not, as alleged, the Abbot's) and so far from the Abbot's men being admitted to share their distinction, we find the latter, at Rye and Winchelsea, styled in John's charter 'homines', not even 'homines nostri'.

The accepted view as to Rye and Winchelsea is thus set forth by Professor Burrows:

The Confessor had evidently intended to make the little group
of Sussex towns, the 'New Burgh', Winchelsea, and Rye, a
strong link of communication between England and Normandy; but
Godwin and Harold had contrived to prevent the two latter from
becoming the property of the Abbey of Fécamp, to which Edward
granted them in the early part of his reign; and this formed
one of the Norman grievances. William promised to restore them
to the Abbey, and when he had conquered England he kept his
word.... Of the grant of Winchelsea and Rye to the same Abbey
as part of the lands of Steyning we have distinct evidence in
the charter of resumption issued by Henry III in 1247 (p. 27;
cf. _supra_, p. 248).

Although this view has always been held by local historians and antiquaries, it seems to me obvious that there must be error somewhere. Rye and Winchelsea belonged geographically to the Abbey's lordship of Brede in the extreme west of the county; its lordship of Steyning was in East Sussex. On examining for myself the charter of resumption and comparing it with the Abbey's claims as to Brede at the _quo warranto_ inquiry, I discovered the solution of the mystery. Rye and Winchelsea were not, as alleged, appurtenant to Steyning, but belonged to the Manor of Brede. The Abbey, however, claimed on behalf of its Manor of Brede (including Rye and Winchelsea) all the franchises granted to Steyning, contending that they were meant to extend to all its lands in Sussex. This claim was urged and recognized in the case of the charter of resumption (1246), the source of the whole misapprehension.

But to return to the 'barons', Professor Burrows, discussing the title, writes thus:[12]

It is admitted that the title was at first only held by the
Portsmen in common with the citizens of several other places,
as that of a responsible man in a privileged community, of a
'baro' or 'vir' of some dignity; but, of course, not in the
least in the sense of a 'baron' such as the word came to mean
in the twelfth and thirteenth centuries.

I do not know which were these 'several other places'; but I think the word 'baron' can be shown to have here had a definite connotation. The exemption from 'wardship and marriage', for instance, granted by Edward I (1278), implies that these 'barons' were subject to the burdens of tenants-in-chief, while their extraordinary appeal, after the battle of St Mahé (1293), to 'the judgment of their peers, earls, and barons'[13] has not, so far as I know, received the attention it deserves. By such a phrase the Cinque Ports 'barons' virtually claimed the privilege of peers of the realm.

But one must not wander too far along these tempting paths. When tradition is replaced, as it may be in part, by evidence, we shall have, not improbably, to unlearn much that now passes current as genuine Cinque Ports history. On the other hand, there may be in store for us glimpses of much that is interesting and new.[14]

Apart, however, from problems as yet difficult and obscure, we shall be standing on sure ground in asserting that the charter of Edward I is the first that was granted to the Ports collectively, and that the rights and liberties it confirmed were those which had been granted to the separate ports by Henry II and John, and which it then made uniform and applicable to the whole confederation. As at London,[15] we have always to remember that communal institutions might develop locally before their existence is proved by the crown's formal recognition. Delay in that recognition is not proof of their non-existence. What complicates so greatly the study of the Cinque Ports polity is the difficulty of disentangling its three component elements: the old English institutions common to other towns; the special relation to the crown in connection with their ship-service; and the foreign or communal factor on which I have myself insisted. No impartial student, I believe, will deny that I have fairly established the existence of this third element. Its relative importance and its sphere of action must remain, of course, as yet matter of conjecture.

[Footnote 1: _Archæological Review_, iv. 439-44.]

[Footnote 2: _Ibid._, p. 441.]

[Footnote 3: _The Cinque Ports_, p. 64.]

[Footnote 4: Had he seen them all, the wording would have run,
'per cartas eorundem, quas iidem', etc.]

[Footnote 5: _The Cinque Ports_, p. 63.]

[Footnote 6: _Ibid._, p. 71.]

[Footnote 7: _Supra_, p. 421.]

[Footnote 8: _The Cinque Ports_, p. 26.]

[Footnote 9: The Professor's argument that 'the lordship of
St Denis over the Saxon Hastings had ceased--probably when the
Northmen took possession of the Seine valley and blocked out
the French; that of Fécamp was the renewal of the old idea
on an adjoining territory' (_Cinque Ports_, p. 27), is as
baseless as that which follows it as to Winchelsea and Rye.
For the 'charter of Offa, king of the Mercians' (p. 25),
granting Hastings to St Denis, has been conclusively shown by
Mr Stevenson to be a forgery.]

[Footnote 10: One cannot, of course, speak positively without
seeing that 'identification' on which Professor Burrows
relies. But, unless there is evidence to the contrary, it
seems difficult to resist the conclusion that this estate
of the Abbey 'in Hastings' was identical with that which it
actually possessed in the Bourne Valley. For this by no means
included the whole 'town in the Bourne Valley', but only that
portion of it at the foot of the West Hill, which is bordered
by Courthouse Street, Bourne Street, John Street, and High
Street, together with St Clement's Church and its block of
buildings (_Sussex Arch. Coll._, xiv. 67). And this conclusion
is strengthened by the fact that in Domesday its rents are 63s
'in Hastings', and 158s in the 'novus burgus', while at the
Dissolution they were only 35s 4d in Hastings. In that case
we must after all look for the 'novus burgus' of Domesday at
Winchelsea or Rye.

Nor is the history of Hastings harbour at all as clear as
could be wished. 'The ancient Harbour once occupied', no
doubt, 'Priory Valley' (_Cinque Ports_, p. 9); but I can find
no trace of a haven 'formed by the Bourne between the East
and West Hills', which replaced it on its silting-up. On
the contrary, the old map of Hastings in 1746 (_Sussex Arch.
Coll._, vol. xii) shows us the 'haven' (with ships) in the
Priory Valley to the west of the Castle Hill. Was not this
a later harbour (1637), and the real original one out to the
south?]

[Footnote 11: Chichester, Lewes, and Pevensey are all duly
entered, under the names of their respective lords.]

[Footnote 12: _The Cinque Ports_, pp. 77-9.]

[Footnote 13: _The Cinque Ports_, p. 123. Compare the
banishment of the Despencers (1321) by the 'piers de la terre,
countes et barouns'.]

[Footnote 14: The courts of the Cinque Ports, for instance,
greatly need investigation. One can only throw out as a mere
conjecture the suggestion that if the Court of Guestling
derived its name, as Professor Burrows admits is probable,
from Guestling (the _caput_ of a Hundred), midway between
Hastings and Winchelsea, it may have been originally a
_Sussex_ Court for the Hastings group, while the Court of
Broadhill--afterwards 'Broderield' and 'Brotherhood' (_The
Cinque Ports_, p. 178)--may have been the Kentish one. The
admitted corruption in the traditional derivation of both
names, together with the court's change of _locale_, shows
how much obscurity surrounds their true origin. Few, I
think, would accept Professor Burrows' view that, because the
Brodhull, when we first have record of it, was held 'near the
village of Dymchurch' (p. 46), it was named from 'the "broad
hill" of Dymchurch, which may well have been some portion of
the wall which extended for three miles along the beach' (p.
47). As the Guestling was not a court of 'Guests', so 'the
broad hill', from which the meeting derived its name, must
have been originally somewhere else than down 'on Dymchurch
beach' (p. 75), between Romney Marsh and the sea.]

[Footnote 15: See my paper on the origin of 'The Mayoralty of
London', in _Archæological Journal_ (1894).]

ADDENDA

Pages 20, 107. In case I should not have made sufficiently clear my views as to the filiation of the Domesday MSS., it may be well to explain that what I deny on p. 21 is that the _Inq. Com. Cant._ and the _Inq. El._ can both have been copied from a third document intermediate between them and the original returns. But, as I state on pp. 20, 123, it cannot be _proved_ that the _Inq. Com. Cant._ was itself transcribed direct from the original returns, as it might, possibly, be only a copy of an earlier transcript of these returns.

Page 30. A remarkable instance of the occasional untrustworthiness of the figures given in these texts is afforded by the Manors of Stretham and Wilburton, co. Cambridgeshire, which were farmed together. The correct figures for their ploughteams were these:

Dominium Homines Total
Stretham 4[1] 5 9
Wilburton 3[2] 4 7[3]
__ __
7 9

The footnotes show the errors.

Thus the A text, which is the best known, gives two figures out of three wrongly for Wilburton, and Mr Pell, by accepting as genuine these two erroneous figures, was led to quite erroneous conclusions.

Pages 68-9. The parallel for this system of counting by threes and sixes is found in the wergild of Scandinavia, with its _rétt_ of 3 marcs, or 6, or 12, the 6 or the 12 _aurar_, the 12 ells or the 12 feet of _vadmal_.

For the _formulæ_ on p. 68 an instructive parallel is found in the Frostathing's Law:

If a _haulld_ wounds a man, he is liable to pay 6
_baugar_ (rings) to the king, and 12 _aurar_ are in each ring
... a _lendrmann_ 12, a jarl 24, a king 48, 12 _aurar_ being
in each ring.

Thus we find in Scandinavia the counterpart of the system of counting found in the 'Danish' districts of England, just as we find in Angeln and Ditmarsh the counterpart of the 'hide', with its four 'yards', found in southern England (_Archæologia_, xxxvii. 380).

Page 105. For the election of _juratores_ we may compare the Abingdon Abbey case, under Henry II: 'ex utroque parte seniores viri eligerentur qui secundum quod eis verum videretur ... jurarent; ... segregati qui jurarent diversis opinionibus causam suam confundebant'. For juries of eight or sixteen we may compare Jocelin de Brakelonde's narrative of a suit for an advowson in 1191: 'delatum est juramentum per consensum utriusque partis sexdecim legalibus de hundredo'.

Page 126. Compare here Mr Freeman's text (iii. 413-4):

There can be little doubt that William's ravages were not only
done systematically, but were done with a fixed and politic
purpose.... It is impossible to doubt that the systematic
harrying of the whole country round Hastings was done with the
deliberate purpose of provoking the English king.... The work
was done with a completeness which shows that it was something
more than the mere passing damage wrought by an enemy in need
of food.

Domesday is appealed to, as in the Appendix, for this view.

Page 205. Though I have spoken in the text of _William_ de Montfichet, following, like Dugdale, the _Liber Niger_, I have since found that the tenant of the fief, in 1166, was his son Gilbert, the _carta_ being wrongly assigned in the _Liber Niger_ itself to William. There are similar and instructive errors to be found in it.

Page 244. The succession of Schelin, the Domesday under-tenant by his son Robert, in 1095 identifies the former with Schelin, the Dorset tenant-in-chief, from whom Shilling Ockford took its name, and who was succeeded in Dorset also by his son Robert (_Montacute Cartulary_).

Pages 293-4. To guard (as I have to do at every turn) against misrepresentation, I may explain that the Battle Chronicle is the primary authority I follow for the feigned flight. Its words 'fugam, cum exercitu duce simulante', distinctly assert that the Duke himself, with the main body of his army, 'turned in seeming flight'. It must, surely, be because this evidence is quite opposed to Mr Freeman's view that he ignored it in his text (pp. 488-90). The essential point to grasp, according to my own view, is that a detachment, told off for the purpose, thrust itself between the pursuing English and the hill to cut off their retreat, and that the main body of the Normans then faced about. The English, one may add, are hardly likely to have ventured down into the plain unless the feigned flight was so general as to make them think they could safely do so.

Pages 311-12. 'Mainly from oral tradition.' This refers, of course, to Mr Archer's contention.

Page 356. On the great influence, by their connection, of the Clares see also the _Becket Memorials_ (iii. 43), where Fitz Stephen writes (1163):

Illi autem comiti de Clara fere omnes nobiles Angliæ
propinquitate adhærebant, qui et pulcherrimam totius regni
sororem habebat, quam rex aliquando concupierat.

We are reminded here of the curious story in the _Monasticon_ (iv. 608) that, some forty years before, Roheis de Clare, the wife of Eudo Dapifer, was, on his death (1120), destined by her brethren for the second wife of Henry I, a story which illustrates, at least, the position attributed to the family.

Pages 357-8. The Montfichet match is not shown in the chart pedigree, nor is the important marriage of Adeliza, another daughter of Gilbert (fitz Richard) de Clare, to Aubrey de Vere, the Chamberlain, which is well ascertained (_Geoffrey de Mandeville_, pp. 390-2). By him she had _inter alios_ a daughter, with the Clare name of 'Rohese', who married Geoffrey de Mandeville, first Earl of Essex (_ibid._). The existence of this Adeliza may be held to be against my affiliation of 'Adelidis de Tunbridge', which avowedly is only a conjecture.

Page 360. A chart pedigree is here given to illustrate the connection of Robert fitz Richard (de Clare), through his wife, with the Earls of Northampton and the Scottish kings:

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