Là èrent del pais li barun assemblé.']
[Footnote 14: _Ibid._, 106; so Garnier--
'Pur c'èrent assemblé cele genz à cel jur,
Et li prince et li cunte et des baruns plusur.']
[Footnote 15: 'Veniens itaque legatus ad curiam, convenit
tutores regis ... Willelmum de Sancto Johanne, Willelmum
filium Aldelinae, Hugonem de Gundulfivilla, Randulfum
Stephani' (i. 108-9).]
[Footnote 16: 'Qui de portu Suthamtune transfretaturi erant'
(i. 111). Geoffrey sent back a scornful reply (see also
Garnier) expressing his wonder that the young king could think
of meeting a man who meant to disinherit him. This statement
agrees with Becket's own complaint (vii. 406) that his
_archidiabolus_ Geoffrey was instructed to make this charge.]
[Footnote 17: III. 120. 'Duo archidiaconi ... jam in Cantiam
venerant, ad regem illac transfretaturi. Audito autem
quod archiepiscopus appulsus Cantuariae esset, lora statim
diverterunt, ad occidentals maris portus tendentes.' This
convicts Mr Eyton of error in asserting that on December 1st
the two archdeacons were at Dover, waiting to cross (p. 149).]
[Footnote 18: _Ibid._, i. 111.]
[Footnote 19: _Memorials_, iii. 127.]
THE FIRST KNOWN FINE (1175)
In his masterly introduction to _Select Pleas of the Crown_,[1]
Professor Maitland, with his usual skill, discusses the evolution of
the _Curia Regis_ and the relation of the central to the itinerant
courts. An appendix to this introduction is devoted to 'early fines';
and the conclusion arrived at, as to the date when regular fines
began, is that 'the evidence seems to point to the year 1178
or thereabouts, just, that is, to the time when King Henry was
remodelling the Curia Regis; thenceforward we have traces of a fairly
continuous series of fines' (p. xxvii). More definitely still, in his
latest work, he traces the existence of fines 'from the year 1179'.
The earlier document I here print from the valuable cartulary of
Evesham (_Vesp._ B. xxiv., fo. 71, etc.) is, I contend, a true fine,
and is fortunately dated with exactitude (July 20th):
Hæc est finalis concordia facta in curia domini Regis apud
Evesham ad proximum festum sancte Margarete post mortem
comitis Reginaldi[2] Cornub' coram Willelmo filio Audelini
et Willelmo filio Radulfi et Willelmo Basset et aliis
justiciariis domini regis qui ibi tunc aderant, inter Rogerum
filium Willelmi et Robertum Trunket de terra de Ragl' unde
placitum fuit inter eos in curia domini Regis. Scilicet quod
predictus Wibertus Trunket clamavit quietam predicto Rogero
terram illam de Ragl' et [_sic_] feud[um] et hereditatem suam
et totum jus suum quod in predicta terra habebat, et ipse
trunchet reddidit in curia domini Regis terram illam de Ragl'
in manu [_sic_] abbatis de Evesham, et ipse abbas ibi statim
in curia Regis reddidit eam predicto Rogero. Pro hac autem
concessione dedit predictus Rogerus predicto trunchet xx.
marcas argenti, et predictus abbas dedit truchet unum anulum
argenteum cum cural.
The transcript of this fine is immediately followed by a royal charter
confirming it, and establishing Roger in possession:
H. dei gratia ... Sciatis me concessisse et presenti carta
confirmasse finem que factus fuit in curia mea inter, etc.,
etc. ... et Wibertus eam reddidit solutam et quietam in manu
abbatis de evesham de cujus feodo terra illa est.... Et
ideo volo et firmiter precipio.... Test. Willelmo Audelin',
Willelmo filio Radulfi, Willelmo Basset, Berteram de Verdun,
Gaufrido Salvagio. Apud Evesham.
Mr Eyton, to whom this fine was unknown, does not, in his _Court and
Itinerary of Henry II_, include Evesham among the places visited by
the king in 1175, but makes him visit Feckenham about October (p.
196). But as we learn from the above fine that Henry was at Evesham
on July 20th, Mr Eyton's conclusions must be reconsidered. Henry,
according to him, was at Woodstock July 8th and at Nottingham August
1st. Now this latter date is derived from a Nottingham charter (p.
193), among the witnesses to which are William fitz Audelin 'Dapifer',
William Basset, and William fitz Ralf, the very three justices
before whom our fine had been levied at Evesham on July 20th. I hold,
therefore, that Henry proceeded (possibly through Lichfield, as
Mr Eyton asserts) from Woodstock to Nottingham _via_ Evesham; and,
further, that he visited Feckenham (to the north of Evesham) on
this occasion, and not, as Mr Eyton imagined, in October. We find
accordingly that of the Feckenham charters quoted by that writer (p.
196), one is witnessed by all three of our officers, William fitz
Audelin 'Dapifer', William fitz Ralf, and William Basset; one by
William fitz Audelin and William fitz Ralf; and the third by William
fitz Ralf and William Basset.
Now, working from the Pipe-Rolls, Mr Eyton discovered that:
while the king was in Staffordshire there were pleas held in
that county which are expressed to have been held by William
fitz Ralph, Bertram de Verdon, and William Basset _in curia
Regis_ (p. 193).
He also noted that
the Pipe-Roll of 1175, after duly recounting the results of
the ordinary assizes, held by William de Lanvall and Thomas
Basset (who appear to have visited York while the king was
there), contains the following (in regard to a different kind
of judicature than that at which the two justiciars presided),
and which probably took place in a court of which the king in
person was president:
'Placita et conventiones per Willelmum filius Radulfi,
Bertram de Verdon, et Willelmum Basset, in curia Regis.' These
_Placita_ were apparently nothing more than fines with the
crown (p. 194).
So, too, he found that at Northampton
the three justiciars who had attended him in his special
_curia_ in Staffordshire and at York, negotiated a fine by
Robert de Nevill, 'pro rehabenda saisina de Uppetona quæ fuit
Radulfi de Waltervilla' (p. 194).
My own evidence proves that the same three justiciars had been with
him, earlier in the summer, in his special _curia_ at Evesham, where
an actual fine was levied.
Thus we have proof that in the summer of 1175 the king was accompanied
on his progress by a special group of justices, with whose assistance
he held pleas, just as, a generation later, John, in his ninth
year, 'was journeying about the country with three judges in his
train--Simon Pateshull, Potterne, and Pont Audemer'.[3] While he
was doing this, as Eyton has shown, two great eyres were going
on throughout the country, one of them conducted by William de
Lanvall[ei] and Thomas Basset, the other by Ranulf de Glanville and
Hugh de Cressi. It is noteworthy that all these four are found, with
William fitz Audelin, among the witnesses to a royal charter assigned
by Mr Eyton--rightly, no doubt--to the king's stay at York (_circ._
August 10, 1175), as they also are among the witnesses to the
Nottingham charter mentioned above (p. 385), assigned by Eyton to
August 1st. The latter, therefore, brings together the king's own
party of three or four justices with the four justices in eyre.
The great importance of this royal _iter_ consists in its bearing on
the evolution of the _curia regis_. The years 1175 and 1176 form a
critical epoch in this institutional development. Dr Stubbs, writing
on this subject, reminds us that 'the first _placita curiæ regis_
mentioned by Madox are in 1175' (i. 600), and speaks of the 'two
circuits of the justices in 1175, and the six circuits of the judges
in 1176' (_ibid._). So far, indeed, all is clear. The two judicial
eyres of 1175 are known to us from the Pipe-Rolls; the six of 1176 are
found in the chronicles also, for they were settled by the Assize of
Northampton in January of that year (i. 484-5). The really difficult
subject is the king's own _iter_, for which, we have seen, there is
clear evidence, but of which Dr Stubbs, working from Madox, seems to
have been unaware. His words are:
All the eighteen justices of 1176 were officers of the
Exchequer; some of them are found in 1175 holding 'placita
curiæ regis' in bodies of three or four judges, and not in the
same combinations in which they took their judicial journeys.
We can scarcely help the conclusion that the new jurisprudence
was being administered by committees of the general body of
justices, who were equally qualified to sit in the Curia and
Exchequer, and to undertake the fiscal and judicial work of
the eyre.
[_Note_: For instance, in 1176, William fitz Ralf, Bertram de
Verdun, and William Basset hear pleas in Curia Regis touching
Bucks. and Beds.; yet on the eyre, these two counties are
visited by three other judges, etc.]
These statements are based on Madox's extracts from the Pipe-Rolls,[4]
which afford, however, more definite evidence than Dr Stubbs
discovered. In the Pipe-Roll of 1175 and its immediate successor
we find 'Placita _in Curia Regis_' held by a single group of
judges--William fitz Ralf, Bertram de Verdon, and William Basset
(Thomas Basset is a substitute in one case and William fitz Audelin,
we have seen, in another)--quite distinct from the 'placita' of the
justices in eyre, which were not described as 'in curia regis'. The
view, therefore, that I now advance is that these pleas, 'in curia
regis', were held by a separate group of judges in the train of the
king himself, whose _iter_ began at Reading, June 1175.[5] It was
there, I believe, that were held the 'placita' for Bucks and Beds,
duly recorded in the Pipe-Roll of 1175. That this royal _iter_
was continued through the Exchequer year 1175-6 seems to be well
established, and the chronological difficulty of distinguishing
between the two years renders the discovery of a fixed point, such as
that afforded by the Evesham fine, of special value. Its evidence also
establishes the presence of the king in person,[6] whose charter of
confirmation should be carefully noted on account of its reciting the
fine.
Having now traced the royal _iter_, of which the pleas are
distinguished on the Pipe-Rolls as held 'in curia regis', I turn to
the circuits of the judges. I have fortunately lighted, in the
course of my researches, on two more fines earlier than any known to
Professor Maitland. And, better still, one of these is the original
document itself. The date of the first is July 1 and of the second
June 29, 1176. The justices named in each case are those who are
known to have gone the circuits, in which Leicester and Oxford were
respectively comprised.[7] The importance of these documents demands
that they should be printed _in extenso_.
I
Hec est finalis concordia facta apud Legr[ecestr]am proxima
die Jovis post proximum festum apostolorum petri et pauli
postquam Hugucio legatus Rome pervenit in Angliam,[8] coram
Hugonem de Gundevile et Willelmo filio Radulfi et Willelmo
Basset, Justiciariis domini Regis, et ceteris Baronibus qui
ibi tunc aderant Inter Galfridum Ridel et Bertramum de Verdun
de terra de Madeleye, unde placitum fuit inter eos in curia
Domini Regis, Videlicet quod Galfridus Ridel dedit Bertrammo
[_sic_] de Verdun feodum I militis in Leycest'syre, scilicet
servitium viii. car. terre quas Robert Devel tenet in
Swineford et in Walecote et servitium ii. car. terre quas
Walterus de Folevile tenet in parva Essebi et servitium I car.
terre quam peverel tenet in Flekeneye, et servitium i. car.
terre quam Hardeui[nus] tenet in eadem Flekeneye. Et has xii.
car. terre dedit ei et concessit in feodo et hereditate per
servicium unius militis. Et in Staffordesyre dedit predictus
Galfridus prenominato Bretamo [_sic_] xii. bov. terre quas
habebat in Crokestene de feodo de Madelye et servitium de
Foxwiss et de Hanekote per v. sol. inde annuatim reddendos
Galfrido pro omnibus que ad illum pertinent. Has vero terras
in Leycest'syre et in Staffordsyre dedit Galfridus Ridel et
concessit Bertramo et heredibus suis tenendas de illo et de
heredibus suis in feodo et hereditate libere et quiete per
prenominatum servitium pro omnibus que ad illum pertinent, et
pro ista donatione et concessione Bertrammus [_sic_] de Werdun
[_sic_] totam calumpniam quam habuit versus Galfridum in
Madeleye quietum clamavit de illo et de heredibus suis
Galfrido Ridel et heredibus suis.[9]
II
Hec est finalis concordia que facta fuit apud Ox[eneforde] in
curia Regis coram Ricardo Giffard et Rogero filio Reinfr[idi]
et Johanne de Caerdif Justitiis Regis ... proximum festum
apostolorum petri et pauli postquam dominus Rex cepit
ligantiam baronum Scotie apud [Ebo]racum[10] inter Canonicos
Oseneie et Ingream et tres filias eius scilicet Gundream et
Isabella et Margaretam de terre de Oxenef[orde] unde placitum
fuerat inter eos in curia Regis scilicet quod Ingrea et tres
filie sue prenominate clamaverunt predictis canonicis quietam
terram illam in Oxenenef[orde] de se et de heredibus suis pro
xx. sol. quos canonici illi dederunt et omne jus quod in eadem
terra habebant quietum illis clamaverunt.[11]
It will be observed that the Oxford fine is described as made 'in
curia regis', while the Leicester one is not. It would seem, then,
that in spite of the distinction drawn at first on the rolls, the
phrase 'curia regis' was already creeping in as describing a court at
which the king was not present.
I have also discovered, in MS., a 'fine' of some ten or twelve years
earlier, most valuable for comparison with those which I have here
discussed. We have there a similar charter of confirmation, in
which the king describes the transaction as 'finem illum quem Abbas
Willelmus de Hulmo fecit coram me',[12] and the document confirmed,
moreover, describes itself as a 'finis' between the Abbot of Holme
and William and Henry de Neville, brothers.[13] But the form is very
different from that of the true fine, which is fully developed in
our example of 1175. The Holme 'fine' may be safely assigned to March
1163-March 1166,[14] and as it was 'made' at Westminster, it not
improbably belongs to the series of proceedings there _circ._ March 8,
1163. It may fairly be presumed that if, at the date of this fine,
the fully developed form existed it would have been duly employed
at Westminster on this occasion. We may therefore safely assert,
at least, that it came into use between the dates of these two
transactions.
As bearing on the evolution of the fine, the charter of Henry II,
confirming a 'finis et concordia', and assigned by me to 1163-70,[15]
ought to be compared with the Holme charter, as indicating, perhaps,
some advance, through the close resemblance between the clauses, in
these royal charters, confirming the fine points to an almost common
stage of development.
HOLME LEWES
Quare volo et firmiter precipio Et ideo volo et firmiter precipio
quod finis ille sicut coram me ut finis iste et concordia
factus est stabilis sit, et stabilis sit et firma maneat et
firmiter et inconcusse ex inconcusse inter eos teneatur,
utraque parte teneatur. sicut facta fuit coram me et
utrobique concessa.
The part played by William fitz Audelin in the affairs, at this time,
of Ireland, gives also some importance to this proof of his presence
at Evesham on July 20, 1175. It brings us, indeed, in contact with the
great 'Laudabiliter' controversy. Miss Norgate holds that William fitz
Audelin was sent to Ireland in charge (with the Prior of Wallingford)
of that contested document in 1175.[16] Professor Tout, in his
biography of William, writes on the contrary, oddly enough, that he
was 'sent in 1174 or 1175' [_sic_] on this mission, but 'soon left
Ireland, for he appears as a witness of the treaty of Falaise in
October 1174 [_sic_], and in 1175 and 1176 he was constantly
in attendance at court in discharge of his duties as steward or
seneschal'.[17] This confusion, however, is slight when compared with
the statements as to William's tenure of the government of Ireland. It
is agreed that he was sent to succeed Earl Richard (who died April 5,
1176); but while Miss Norgate holds that 'early in the next year
Henry found it necessary to recall him',[18] Professor Tout places his
recall in 1179, consequent on complaints against him to the king in
January of that year. Without undertaking to decide the question, I
may suggest that William had returned to England by May 1177--for
he is proved by charters to have attended the Oxford council of that
date--when Henry replaced him, as governor, by Hugh de Lacy, but
entrusted him, as Hoveden states, with Wexford. We have only to assume
that Gerald, by mistake, assigns to 1172 his Wexford appointment,
which really belonged to 1177 (Professor Tout thinks this probable),
and then the solution I suggest satisfies all the requirements.
William fitz Audelin, I may add, has been peculiarly the sport of
genealogists. Having been selected by them as ancestor to the great
Irish house of Burke ('De Burgo') he was further transformed, by a
flight of fancy even wilder than usual, into a lineal descendant of
Charlemagne. Who he really was seems to have remained unknown, for his
life in the _Dictionary of National Biography_ treats with suspicion,
though duly mentioning, his alleged descent from Charlemagne.
Moreover, his very name would seem to have been left in doubt.
It would, of course, be difficult to distinguish 'Aldelinus' from
'Aldelmus' in MS., and I confess to having looked on the latter--which
is the form adopted by Professor Tout in the _Dictionary of National
Biography_, as by Miss Norgate and others--as probable enough from
its likeness to the English 'Aldhelm'. But the 'fitz Audeline' of
the Anglo-Norman poem on the Conquest of Ireland seems decisive.
'Willelmus filius Audelini, domini regis dapifer' was the style he
used in his own charters.[19]
Having always kept a look-out for him in Yorkshire, I recognized
William at once in a charter which is among those abstracted in the
Report on the Portland MSS.[20] This is a confirmation by Roger de
Mowbray of a grant to Fountains by 'Aldelin de Aldefeld and Ralph
his son and his other sons'. Among the witnesses are 'Ralph son
of Aldelin, William his brother', and at the close, 'Amelin son
of Aldel'. Now, if we turn to the _cartæ_ of 1166, we find, under
Yorkshire, that Ralph 'filius Aldelin' held half a knight's fee of
Roger de Mowbray, and William filius Aldelin one fee of Henry de
Lacy. Here we recognize the two brothers mentioned in the charters
above.[21] The small fief of William 'filius Aldelin' himself is
entered under Hampshire, where it is described as 'terra quam dominus
Rex dedit Willelmo filio Aldelin, Marscallo suo, cum Juliana filia
Roberti Dorsnelli'.
It is through this Juliana that we obtain the coping-stone of proof.
Her charter granting Little Maplestead, Essex, to the Hospitallers,
has for its first witness 'Radulfo filio Adelini', who, as we have
seen above, was her husband's brother.[22] And he is also the first
witness to William's confirmation of her gift.[23]
The parentage and the true name of William fitz Audelin are thus, at
length, clearly established.
[Footnote 1: Vol. i. (Selden Society).]
[Footnote 2: 'Reg.' MS. The earl died July 1, 1175. This fine
further confirms the accuracy of the _Gesta Henrici_ (see
Eyton, p. 192).]
[Footnote 3: Maitland's _Select Pleas of the Crown_, I. xv.]
[Footnote 4: _History of the Exchequer_ (Ed. 1711), pp. 64,
65.]
[Footnote 5: Eyton's _Itinerary_ p. 191.]
[Footnote 6: Prof Maitland has explained that this presence
was formal (_Select Pleas of the Crown_, I. xiv).]
[Footnote 7: Except that Robert fitz Bernard's place is taken
by John of Cardiff.]
[Footnote 8: October 27, 1175.]
[Footnote 9: Sloane Charter xxxi. 4, No. 34. See also
Addenda.]
[Footnote 10: August 1175.]
[Footnote 11: Cotton Charter, xi. 73 (original).]
[Footnote 12: Galba, E., II. fo. 31_b_.]
[Footnote 13: _Ibid._, 62_b_.]
[Footnote 14: The witnesses to the fine and the charter
confirming it included Richard Archdeacon of Poitiers and
Robert Earl of Leicester. The former gives us the limit March
1163, and the king was not in England in the lifetime of the
latter after March 1166.]
[Footnote 15: See my _Ancient Charters_, pp. 67-8.]
[Footnote 16: 'It is acknowledged on all hands that there is
no sign of any attempt on Henry's part to publish the letter
in Ireland ... before 1175. In that year Gerald states that
the letter was read ... at Waterford.' _English Historical
Review_, viii. 44. Cf. p. 31. See also _Angevin Kings_, ii.
182.]
[Footnote 17: _Dictionary of National Biography_. I differ
wholly from both writers, and take the view, based on record
evidence, that, contrary to the accepted belief, William
visited Ireland some two years earlier.]
[Footnote 18: _England under the Angevin Kings_, ii. 183.]
[Footnote 19: The name of 'Audelin' is extant as a surname. I
have met with it in London.]
[Footnote 20: 13th Report Hist. MSS., App. ii., p. 4. We are
indebted, I believe, to Mr Maxwell Lyte for these interesting
abstracts.]
[Footnote 21: The name seems to be preserved in Thorpe-Audlin
(_vulgo_ Audling), a township in the West Riding of Yorkshire,
some 4-1/2 miles from Pontefract.]
[Footnote 22: It seems to be printed only in a footnote to
Morant's _Essex_ (i. 282). 'Radulfo filio Willelmi domini mei'
is a witness, which certainly suggests that William had been
married before.]
[Footnote 23: See _Monasticon_. Prof Tout seems to have been
unaware of these charters of William, one of which is dated.
Indeed he only says that William 'is said to have married'
Juliana, giving the _carta_ (1166) as his authority.]
THE MONTMORENCY IMPOSTURE
Many a jest has been levelled at the Irish family of Morres for
seeking and obtaining permission from the Crown, some eighty years
ago, to assume the glorious name of 'De Montmorency', in lieu of their
own, as having been originally that of their family.[1] They have
since borne, as is well known, not merely the name, but even the
arms and the proud device of that illustrious house. Moreover,
the introduction of the name Bouchard, borne by the present Lord
Mountmorres, proves the determination of the family to persist in
their lofty pretensions.
I am not aware whether these pretensions have ever been regularly
exposed: they seem to have been thought too fantastic for serious
criticism. At the same time, it must be remembered that they have been
formally and officially recognized by Sir W. Betham as Deputy Ulster,
by the English crown (on the strength of his statement) and by the
Chevalier De la Rue, 'garde-général des archives du Royaume', on the
French side, in 1818. On the other hand, it must not be forgotten that
MM. de Montmorency at the time, in spite of the repeated and strenuous
appeals of the Morres family, declined to admit their claim to be
members of the house of Montmorency.
To the indignant protest of Col. Hervey Morres (styling himself 'de
Montmorency-Morres') against this action of the French house, we owe
the most complete exposition of the case on behalf of his family.[2]
On it, therefore, my criticisms will be based. Nor will these
criticisms be destructive only: they will show that the pedigrees
upheld by Col. Morres and his opponents were both alike erroneous,
and will establish the real facts, which, it will be found, completely
vindicate the accuracy of Giraldus Cambrensis.
The controversy hinged on a well-known personage. 'Herveius de Monte
Mauricii', as Giraldus terms him. The French house, taking their
stand on the historians of their family, insisted that he was the only
Montmorency who had gone to Ireland in his time, and that as he had,
admittedly, left no legitimate issue, the Morres claim was untenable.
The Irish house contended that, on the contrary, others of the family
had come over also, and that they were lineally descended from one
of Hervey's brothers, but the whole story undoubtedly sprang from the
mention of this Hervey--the sole connecting link--and from the curious
form in which Giraldus chose to latinize his name.
Now Duchesne, the historian of the house of Montmorency, whose version
Desormeaux and Père Anselme did but follow in the main, wrote thus of
Hervey:
Il espousa Elizabeth de Meullent veuve de Gislebert de Claire,
Comte de Pembroc en Angleterre et mère de Richard de Claire,
surnommé Strongbow, Comte de Pembroke, dompteur de l'Hibernie,
duquel à raison de cette alliance un Autheur du temps le
qualifie parastre ou beaupère (p. 92).[3]
But this 'Autheur' is Giraldus Cambrensis, on whom Duchesne based his
account, and who, we find, does not speak of Hervey as stepfather, but
as paternal uncle of Strongbow:
Herveius de Monte Mauricii, vir quoque fugitivus a facie
fortunæ, inermis et inops, ex parte Richardi comitis cujus
_patruus_ erat, explorator potius quam expugnator advenit (i.
3).
Duchesne's version, therefore, is out of court, although it was
repeated by Père Anselme, and even adopted in the _Genealogist_ by so
skilled and able a genealogist as Mr G. W. Watson.[4]
Col. Hervey Morres went so far as to accuse Duchesne and Desormeaux
'd'adulation, d'immoralité, et de mauvaise foi' in giving this account
of his great namesake; and he proceeded to substitute a version of
his own, severing the hapless man and converting him into two! To make
this clear, I must print the essential part of the pedigree as given
by him.
Hervé
de Montmorency
|
-------------------------------------------
| | |
Bouchard Geoffroi Hervé,
de Montmorency dit le Riche 1st Bishop
V | of Ely [1109-31]
|
-------------------------------
| |
Adelaide = Hervé Robert, fils de
de de Montmorency Geoffroi, fils
Clermont | de Hervé
| |
| |
---------------- -----------------------
| | | | |
Guillaume, HERVÉ, Etienne, Jordan HERVÉ,
ob. s. p. fils de Hervé, d. 1136, V Connétable
chamberlain to aged 56 or 57 d'Irelande,
Henry II, 1182 | ob. s. p. 1205
|
|
Robert,
fils d'Etienne
The explanation is extremely simple: the whole pedigree is concocted
with a view to making the Irish Hervey uncle to Robert fitz Stephen.
This was done to satisfy the supposed requirements of Giraldus, whose
words Col. Morres thus triumphantly quoted:
Robertus Stephanides ... Inter cæteros _Herveius de
Montemaurisco_ ROBERTI PATRUUS, _nepoti suo se_ comitem
præbuit (p. 77).
Unfortunately for him, he had gone, not to Giraldus, but to
'Stonyhurst de rebus Hibernicis i. 69-70, _d'après Giraldus
Cambrensis'_. Stonyhurst had carelessly made Giraldus speak of Hervey
as uncle, not to Earl Richard, but to Robert fitz Stephen, and the
pedigree was accordingly constructed to fit this error. When the error
is corrected, the pedigree collapses; and the very passage which is
quoted to confirm it at once unmasks the concoction.
And now having made it clear that both sides were in error, I shall
set forth the true explanation of the words of Giraldus. The clue is
given us by those Deeping charters which, oddly enough, Col. Morres
duly quoted and appealed to. The first is found in the _Monasticon_,
ii. 601:
Adeliz, uxor Gilberti filii Ricardi et Gillebertus, et
Baldewinus, et Rohaisia pueri Gilberti episcopo Lincolniensi
... salutem.... Hiis testibus, Gilberto filio Gilberti,
Galterio, _Hervæo_, Baldwino fratribus ejus et Rohaisia sorore
eorum, etc., etc.
The next is the confirmation of this grant by Robert Bishop of Lincoln
(ob. 1123) as 'donum Adelidæ _de Montemoraci_' (p. 602). The third is
a charter of 'Adeliz, mater comitis Gilberti' (p. 603), who is also
styled in the Thorney Register 'Adelitia de Claromonte'. Col. Morres
also relied much on a grant to Castleacre by 'Adalicia de Claromonte',
to which the first witness is 'Her. de Montemorentino',[5] but the
relationship of the witness to the grantor is not stated.
Gilbert (1) Adeliz (2) [? Bouchard]
fitzRichard = of Clermont = de Montmorenci
of Clare |
__________|__________________________ |_____
| | | | |
Richard Gilbert Walter | Hervey
fitzGilbert, fitzGilbert, fitzGilbert | de Montmorenci,
slain 1136 Earl of of Clare | Constable
Pembroke | of Ireland
| __|________________
| | |
Richard Baldwin Rohaisia
fitzGilbert, fitzGilbert
Earl of Pembroke, of Clare
'Strongbow'
Hervey de Montmorency is also mentioned in the Bilegh Abbey
confirmation charter of Richard I, but it gives us no information.
We have now, however, sufficient evidence to recover the true
genealogy, which is interesting enough. This shows us how Hervey was
'paternal uncle' to Strongbow,[6] and why he witnessed his mother's
charter (_ut supra_) with his brothers and sister, but did not join in
their grant. We see, also, how Duchesne's error arose from his making
the widow not of Gilbert, but of his son and namesake the first Earl
of Pembroke, marry a Montmorenci. The error is not surprising in the
case of such a family as the Clares, whose alliances and ramifications
are made specially puzzling by the repetition of their Christian
names.
On the other hand, the 'dimidiation' of Hervey in the pedigree put
forward by the Morres family was merely the fruit of the resolve to
make him at all costs uncle to Robert fitz Stephen, as the words of
Giraldus were supposed to require, in their misquoted form.
Poor Hervey has, indeed, been the sport of genealogists and
historians. Mr Dimock, in his Rolls edition of Giraldus, renders his
name as 'Mont-Maurice', Miss Norgate as 'Mountmorris',[7] Mrs Green as
Mount Moriss,[8] Mr Hunt, who has written his life in the _Dictionary
of National Biography_ as Mount-Maurice, and even Mr Orpen, in
his admirable edition of the Anglo-Norman poem on the Conquest, as
'Montmaurice' (p. 335). This last is the strangest case, because the
forms found in the poem are 'Mumoreci' and 'Momorci', while, as
Mr Orpen duly points out, it is 'Munmoreci' in the Register of St
Thomas's, and 'Mundmorici' in the Cartulary of St Mary's (p. 266).
Hervey was constable to his nephew Earl Richard's troops in Ireland,
and described himself as 'Marescallus Domini Regis de Hibernia, et
senescallus de tota terra Ricardi Comitis'.
Having now shown that the alleged descent can be absolutely disproved
so far as concerns the only Montmorenci whose name occurs in
connection with Ireland, I proceed to glance at his supposed
relatives, none of whom, it is important to remember, even bore the
name of Montmorency.
The chart pedigree printed above (p. 357) will show how Robert fitz
Stephen was converted into a Montmorenci, though the parentage of
his father Stephen, constable of Cardigan, is wholly unknown. It
need scarcely be said that no proof is, or can be, given for this
filiation; but the following passage on Stephen is an excellent
illustration of the sort of evidence which is vouched for this wholly
imaginary pedigree:
Ce seigneur, très-jeune encore, en 1087, confirma
conjointement avec son père et son aïeul Hervé, fils de
Bouchard, la donation faite par Turillus le Gros à l'abbaye de
St. Florent de Saumur de certaines bénéfices.
Sig. Hervei filii Burchardi, Sig. Roberti filii ejus, Sig.
Stephani militis ejus.
All that is needed, we are told, is to read grandson ('petit fils')
instead of _filius_ for Robert, and great-grandson for _miles_--on the
ground that _miles_ sometimes meant 'un jeune homme'! Such is a type
of the 'proofs' on which this pedigree rests. But its absurdities
and inconsistencies go even further than this. The dates work out as
follows:
Hervey de Montmorency
|
Geoffrey 'le Riche'
|
Robert fitzGeoffrey
tenant-in-chief 1166
|
-------------------------------------------
| | |
Stephen, Hervey, Geoffrey,
born. _circ._ 1080, d. 1205 d. 1211
died 1136, having
witnessed above
charter in 1087
|
Robert fitz Stephen
Thus Stephen, who was born about 1080, and was a witness in 1087,
would be _son_ to a man who flourished in 1166, and _brother_ to men
who died in 1205 and 1211.[9]
But what are we to say when we learn further that this Stephen, who
died in '1136', is the 'Stephanus de Marisco' who appears in the
_Liber Niger_ as a tenant of the Bishop of Ely in 1166! The probable,
and indeed only, explanation is that Col. Morres did not even know
when the returns in the _Liber Niger_ were compiled. Their real date
again destroys this cock-and-bull pedigree, or genealogical nightmare,
which, for sheer topsy-turveydom, has, I venture to assert, never been
surpassed.
I strongly suspect that the whole story arose from the occurrence in
Ireland, in the thirteenth century, of the latinized name 'De Marisco'
or 'De Mariscis', which represents of course, neither Montmorenci nor
Morres, but simply Marsh. Genealogists, no doubt, were attracted by
the form 'De Monte Maurisco' into tracing a connection; but, so far
as can be understood, Col. Morres discarded this resemblance, and
represented his alleged ancestors as 'seigneurs de Mariscis ou
des marches' in England, connecting them with the fen district in
Cambridgeshire. It would be easy to show that the early pedigree
positively teems with absurdities similar to those I have already
exposed, but it would be sheer waste of time to devote any more
attention to proofs, which Col. Morres proudly boasted were 'vérifiés
avec la plus scrupuleuse attention par l'autorité competente et
sanctionnés désormais par l'autorisation du prince qui gouverne
aujourd'hui l'empire britannique' (p. 25).
I do not hesitate to say that a more impudent claim was never
successfully foisted on the authorities and the public. The chief
sinner in the matter was, of course, Sir W. Betham, who certified
(June 29, 1815) that this audacious concoction was 'established
on evidence of the most unquestionable authority, chiefly from the
ancient public records' (p. 203). The Crown naturally could only
accept the statement of its own officer of arms, and accordingly
described the alleged descent as being duly proved and recorded.[10]
As for the French expert, the Chevalier de la Rue, of whose
investigation and favourable verdict (April 17, 1818) so much has been
made, it will scarcely be believed that he actually, with the sole
exception of the _Monasticon_, did not attempt to verify the 'proofs'
set before him! It will be seen from his own words that his decision
was subject to their genuineness:
Toutes les citations puisées par monsieur de Morrès dans les
monuments, registres, et terriers publics d'Angleterre
étant, _comme je n'en doute pas_, aussi exactes que celles du
Monasticon (p. 37).
The value of his loudly-trumpeted verdict may be estimated from this
admission.
It is only right that MM. de Montmorency and all those in France who
are interested in historical genealogy should understand that no
one among ourselves, whose opinion is worth having, would dream of
defending this gross usurpation. We may hope and believe that in the
present day no officer of arms would behave like Sir W. Betham,
and certify, as 'established on evidence of the most unquestionable
authority' a descent which is not merely 'not proven', but can be
absolutely disproved. It cannot be stated too emphatically, or known
too widely, that the house of Morres has no more right, by hereditary
descent, to the name and arms of 'De Montmorency' than any of the
numerous families of Morris, or indeed, for the matter of that, the
family of Smith.[11]
[Footnote 1: See, for instance, the _Complete Peerage_ of G.
E. C. _sub_ 'Frankfort de Montmorency'.]
[Footnote 2: _Les Montmorency de France et les Montmorency
d'Irlande, ou Précis historique des démarches faites à
l'occasion de la reprise du nom de ses ancêtres par la branche
de Montmorency-marisco-morres._ Paris, 1828.]
[Footnote 3: _Histoire de la maison de Montmorency_. Paris,
1624.]
[Footnote 4: Vol. x., p. 6.]
[Footnote 5: Blomefield's _Norfolk_, ix. 5.]
[Footnote 6: Since this article was written, Mr Hunt's life of
Hervey has appeared in the _Dict. Nat. Biog._ He has arrived
at precisely the same conclusions as myself.]
[Footnote 7: _England under the Angevin Kings_, ii. 101, 112.]
[Footnote 8: _Henry the Second_, p. 159.]
[Footnote 9: 'Etienne de Mariscis [_sic_] ... fut tué en 1136
par les Gallois lorsqu'il gouvernait ce pays' (p. 74). 'Il
n'était agé lors de sa mort que de cinquante six ou cinquante
sept ans' (p. 75).]
[Footnote 10: _London Gazette_, September 9, 1815; _Dublin
Gazette_, August 12, 1815.]
[Footnote 11: For an even more illustrious foreign descent,
see my paper, 'Our English Hapsburgs: a great delusion'
(_Genealogist_, N.S., x. 193).]
THE OXFORD DEBATE ON FOREIGN SERVICE (1197)
Great importance is rightly assigned to the first instances of 'a
constitutional opposition to a royal demand for money',[1] of which
the two alleged earliest cases are 'the opposition of St Thomas to the
king's manipulation of the danegeld [1163], and the refusal by St Hugh
of Lincoln to furnish money for Richard's war in France [1197]'.[2]
These two precedents are always classed together: Dr Stubbs writes of
St Hugh's action:
The only formal resistance to the king in the national
council proceeds from St Hugh of Lincoln and Bishop Herbert
of Salisbury, who refuse to consent to grant him an aid in
knights and money for his foreign warfare ... an act which
stands out prominently by the side of St Thomas's protest
against Henry's proposal to appropriate the sheriff's share of
danegeld.[3]
And Mr Freeman repeats the parallel:
Thomas ... withstands, and withstands successfully, the
levying of a danegeld.... As Thomas of London had withstood
the demands of the father, Hugh of Avalon withstood the
demands of the son. In a great council ... [he] spoke up for
the laws and rights of Englishmen ... no men or money were
they bound to contribute for undertakings beyond the sea.[4]
Having already discussed the earlier instance,[5] and advanced the
view that the Woodstock debate [1163] did not relate to danegeld at
all, but to an attempt of the king to seize for himself the _auxilium
vicecomitis_ (a local levy) I now approach the later instance.
'This occasion,' we read, 'is a memorable one':[6] it is that of
an 'event of great importance',[7] of 'a landmark in constitutional
history'.[8] No apology, therefore, is needed for endeavouring to
throw some further light on an event of such cardinal importance. But,
to clear the ground, let us first define what we mean by 'opposition
to a royal demand for money'. However autocratic the king may have
been--and on this point there is not only a difference of opinion
but a difference in fact corresponding with his strength at any given
period--there were limits set by law or custom (or, should we rather
say, limits, both written and unwritten?) beyond which he could not
pass. 'Domesday', for instance, was a written limit: if the king
claimed from a Manor assessed at ten hides the danegeld due from
twenty, the tenant need only appeal to 'Domesday' (_poneret se super
rotulum Winton'_). Or, again, if from a feudal tenant owing the
forty days' service the king were to claim eighty days, he would be
transgressing unwritten custom as binding as a written record. But
outside these limits there lay a debatable ground where that elastic
term _auxilium_ proved conveniently expansive. It was here that the
crown could increase its demands, and here that a conflict would arise
as to where the limit should be placed, a conflict to be determined
not by law, but by a trial of strength between the crown and its
opponents. We have, then, to decide to which of these spheres the
action of St Hugh should be assigned, whether to that of the lawyer
appealing to the letter of the bond, or to that of the popular leader
opposing the demands of the king, though they did not contravene the
law. If one may use the terms, for convenience sake, it was a question
of law or a question of politics; and only if it was the latter had it
a true constitutional importance.
The two chief accounts of the Oxford debate are found in _Roger
Hoveden_ and the _Magna Vita St Hugonis_. As they are both printed in
_Select Charters_, I need not repeat them here. There is, however, an
independent version in the _Vita_ of Giraldus Cambrensis, which it may
be desirable to add:
In Anglicanam coepit [rex] ecclesiam duris exactionibus
debacchari. Unde collecto in unum regni clero, habitoque
contra insolitum et tam urgens incommodum districtiore
consilio, verbum ad importunas pariter et importabiles
impositiones contradictionis et cleri totius pro ecclesiastica
libertate responsionis, in ore Lincolnensis tanquam personae
prae ceteris approbatae religionis authenticae magis communi
omnium desiderio est assignatum (vii. 103-4).
Gerald's editor impugns the correctness of these statements, on the
grounds that the assembly was not clerical merely and that the bishop
did not speak on behalf of the whole church. But the passage seems to
me to refer to a meeting of the clergy in which it was decided that St
Hugh should be their spokesman at the council. Of the other objection
I shall treat below.
According to Hoveden, Richard asked for either (1) three hundred
knights who would serve him, at their own costs, for a year, or (2) a
sum sufficient to enable him to hire three hundred knights for a
year at the rate of three shillings a day. The _Magna Vita_, however,
implies that the former alternative alone was laid before the council.
The grounds on which St Hugh protested are thus given by our two
authorities:
Respondit pro se, quod ipse in hoc voluntati regis nequaquam
adquiesceret, tum quia processu temporis in ecclesiae suae
detrimentum redundaret, tum quia successores sui dicerent,
'Patres nostri comederunt uvam acerbam, et dentes filiorum
obstupescunt' (Hoveden).
Scio equidem ad militare servitium domino regi, sed in hac
terra solummodo exhibendum, Lincolniensem ecclesiam teneri;
extra metas vero Angliae nil tale ab ea deberi. Unde mihi
consultius arbitror ad natale solum repedare ... quam hic
pontificatum gerere et ecclesiam mihi commissam, antiquas
immunitates perdendo, insolitis angariis subjugare (_Magna
Vita_).
Two points stand out clearly--one that St Hugh took his stand on the
prescriptive rights of his church, rights infringed by the king's
demand; the other, that he spoke for himself alone, not for the
church, still less for the barons, and least of all for the nation.
Our authorities, however, are so vague that they leave in doubt the
precise point 'taken' by the saintly prelate. Mr Freeman, we have
seen, confidently assumes that he 'spoke up for the laws and rights of
Englishmen'; Miss Norgate holds that he took up the position of Thomas
and Anselm as 'a champion of constitutional liberty',[9] whatever that
may mean; even Dr Stubbs claims that he 'acted on behalf of the nation
to which he had joined himself'.[10]
I venture to think that the clue to the enigma is to be found in quite
another quarter. In the chronicle of Jocelin de Brakelond we find a
most instructive passage, which refers, it cannot be doubted, to the
same episode. The story is told somewhat differently, but the point
raised is the same. King Richard, we are told, demanded that knights
should be sent him from England, in the proportion of one from every
ten due by the church 'baronies'. The _servitium debitum_ of St
Edmund's being forty, the abbot was called upon to send four.[11] That
the principle of joint equipment, which had been adopted under Henry
II in 1157,[12] and again I think by Longchamp in 1191,[13] was
resorted to on this occasion is the more probable because a few years
later (1205) we find King John similarly demanding 'quod novem milites
per totam Angliam invenirent decimum militem, bene paratum equis et
armis, ad defensionem regni nostri'. I admit, however, that it is not
mentioned in the other versions of our episode, and Jocelin speaks
only of the demand upon the church fiefs. But the point is that
when the abbot consulted his tenants as to sending the four knights
required, they protested that they were liable to pay scutage, but not
to serve out of England.[14] Now this is a _locus classicus_ on the
institution of scutage. Its bearing I shall examine below, after
finishing the story. The abbot, we read, finding himself in a strait,
crossed the sea in search of the king, who told him that a fine would
not avail; he wanted men, not money.[15]
Surely we have here the key to the position taken by St Hugh. When he
claimed that his fief was not bound 'ad servitium militare ... extra
metas Angliae' he cannot have referred to the payment of scutage, for
that had been paid by his predecessors and himself without infringing
the liberties of their church.[16] He must, therefore, have referred
not to 'money', but to _personal_ service outside the realm. But was
this exemption peculiar to the church of Lincoln? If we find the same
privilege existing at St Edmund's and at Salisbury, may we not infer
that the church contingents were only bound to serve in person
for 'defence, not defiance',[17] and that we have here the perfect
explanation of the fact that scutage, as commutation for service, is
an institution, when it first appears, peculiar to church fiefs? The
mediaeval dread of creating a precedent preyed on the abbot as on the
saint. From the council of Lillebonne to the Bedford _auxilium_ (1224)
it was always the same cry:
Creiment k'il seit en feu tornez
Et en costume seit tenu
Et par costume seit rendu.
It was in this spirit that Hugh of Avalon, I take it, made his stand:
other prelates might waive the point, in consideration of the king's
necessities, but he, at least, would never allow a standing exemption
to be broken through and thus impaired for all time.
His attitude, we are told, proved fatal to the scheme, compelling the
king and his ministers to abandon it in impotent wrath. But perhaps
his biographer exaggerates the defeat, for the Bishop of Salisbury,
we know, had to purchase the king's pardon for his action by a heavy
fine, while the Abbot of St Edmund's had to compromise the matter
by the payment of a large sum.[18] It seems probable that similar
compromises would be arranged in other cases where the request was not
complied with.
If, then, I am right in the solution I offer, St Hugh must have taken
the narrowest ground, and have acted on behalf of ecclesiastical
privilege, and only incidentally even for that, his protest being
limited to his own church.[19] And, further, it follows that, like
St Thomas, he was acting strictly on the defensive. To say that his
action affords 'the first clear case of the refusal of a money grant
demanded directly by the crown, and a most valuable precedent, for
later times',[20] is, I submit with all respect, to set it in a quite
erroneous light. In 1197, as in 1163, the crown was trying to infringe
on well-established rights, and St Hugh like St Thomas, resisted that
infringement, so far as his own rights were concerned, just as he
would have resisted an attempt of the crown to deprive his see of a
Manor, of feudal services, or of goods. The crown might take its pound
of flesh, but more than that it should not have; never, through any
action of his, should his church be deprived of its prescriptive
rights.[21]
Here this article originally closed; but I am tempted to refer to one
touching on the same subject which appeared a year later in the pages
of the same review.[22] Alluding to 'the question of foreign service'
as a prominent grievance under John,[23] I wrote:
Ralf of Coggeshall, and Walter of Coventry, assert that the
northern barons denied their liability to foreign service
in respect of lands held in England. John retorted that the
principle had been admitted in the days of his father and
his brother, and therefore claimed it _tanquam debitum_. This
justifies the fears expressed sixteen years before by St
Hugh of Lincoln, and explains what I termed, in examining his
action, the mediaeval dread of creating a precedent.[24]
The final loss of Normandy had, of course, altered the case, but even
while it still formed part of an English King's possessions, there
must always have been scope for argument as to feudal obligations. To
quote once more from the same article:
The question must have been complicated by the growth of the
king's dominions. Did the feudatories owe service to the king,
as their lord, in whatever war he was engaged? Or were they
only bound to follow him as King of England? Or were they, as
holding _a conquestu_, only bound to serve in the dominions
of the Conqueror who enfeoffed them, i.e. in England and
Normandy?[25]
On the death of the Conqueror, the question would arise for the King
of the English and the Duke of the Normans were no longer one and the
same. It comes to the front accordingly in a gathering of the barons
at Winchester, which Mr Freeman assigns to Easter, 1090.[26] Orderic,
here his authority, places it under 1089, and although his chronology
is not to be always blindly followed, there is no ground for supposing
here that the date is wrong. When he is following out a story or
carried on by allusion, Orderic, like other chroniclers, anticipates
or wanders in his dates; but this gathering has no connection with
what precedes or follows; there is, therefore, nothing to account for
his placing it under 1089, if it really belonged to 1090.
But the point to which I would call attention is the nature and
intention of this gathering. Orderic writes:
Confirmatus itaque in regno, turmas optimatum ascivit, et
Guentoniæ congregatis, quæ intrinsecus ruminabat sic ore
deprompsit.
Mr Freeman attaches to the speech that follows no small importance.
Holding that the king 'was now ready to take the decisive step of
crossing the sea himself or sending others to cross it', he pointed
out that:
even William Rufus, in all his pride and self-confidence, knew
that it did not depend wholly on himself to send either native
or adopted Englishmen on such an errand. He had learned enough
of English constitutional law not to think of venturing on
a foreign war without the constitutional sanction of his
kingdom. In a Gemot [_sic_] at Winchester, seemingly the
Easter Gemot of the third year of his reign, he laid his
schemes before the assembled Witan [_sic_], and obtained their
consent to a war with the Duke of the Normans.[27]
Of course, in reading Mr Freeman's works we must reconcile ourselves
to 'Gemot' and 'Witan' being thrust upon us at every turn, however
radically false a conception these words may convey. At the close of
his dealing with this episode, he refers us, as a parallel, to the
'full Gemot' of 1047, in which 'the popular character of the assembly
still', we learn, 'impresses itself on the language of history'. Now
Orderic describes those who were summoned to our Winchester gathering
as 'turmas optimatum'; he makes William begin his speech 'nostri
egregii barones'; and he places in his mouth language essentially
feudal and Norman:
Nunc igitur commoneo vos omnes, qui patris mei homines
fuistis, et feudos vestros in Normannia et Anglia de illo
tenuistis[28] ... c[oe]nobia quæ patres nostri construxerunt
in Neustria ... Decet ergo ut, sicut nomen ejus [_i.e._
Willelmi] et diadema gero, sic ad defensionem patriæ inhæream
ejus [_i.e._ Normanniæ] studio.
Mr Freeman expressed astonishment and delight at William's
'constitutional language', and declared that though, in its actual
wording, the speech, of course, was Orderic's:
the constitutional doctrines which he has worked into his
speech cannot fail to set forth the ordinary constitutional
usage of the time. Even in the darkest hour in which England
had any settled government at all, etc., etc.[29]
And then follows the usual lament for 'the days of King Eadward',
when it was not a 'cabinet', but a crowd, that dealt with the delicate
question of peace or war.
Now even the late Professor's most ardent followers cannot represent
my criticism here as 'trifling', or unimportant. Mr Freeman, I hold,
had misconceived the matter altogether. The whole thing is sheer
delusion. William's appeal, as set before us, was not the fruit of
studies in English 'constitutional law': it was the appeal of a feudal
lord to 'barons' holding by feudal tenure. Should there be any one
who feels the slightest doubt upon the question, let him turn to Mr
Freeman's own account of the great 'Assembly of Lillebonne'. He could
not himself avoid a passing glance at the parallel, when he wrote
that 'William the Red had as good reasons to give for an invasion
of Normandy as his father had once had to give for an invasion of
England'.[30] Contrasting that Assembly (1066) with an English Gemot,
he wrote that 'in William's Assembly we hear of none but barons'.[31]
Precisely. But that remark is equally true of his son's Assembly at
Winchester.[32] And when we learn, a few years later, the
composition of his Assembly, we find it admittedly restricted to
tenants-in-chief.[33] Of the two Assemblies, that of Lillebonne
revealed a more active opposition, showed more 'parliamentary
boldness', than that of Winchester.[34] The latter merely applauded,
we read, the King's appeal. Like his father, he appealed to his barons
to follow him on foreign service; like him also, he pleaded his wrongs
and the justice of his righteous cause.
Of the two, the father seems, as I have said, to have met with more
opposition than the son. One might therefore produce an argument _ad
absurdum_, and contend that, on Mr Freeman's showing, an English King
was not less, but more, absolute than a Norman Duke. In any case we
have now seen that the ideas about 'constitutional usage', and so
forth, imported here by Mr Freeman, were nothing but a figment of
his brain. The Assembly of Winchester no more resulted from 'English
constitutional law' than did the Assembly of Lillebonne, convened for
a similar purpose. William Rufus had to deal with barons who could not
be anxious to invade Normandy merely to make him Duke of the Normans.
If they had any preference in the matter, it would be rather for
Robert than for William, for a weak rather than a strong ruler;
but, apart from preference, the barons would be loth to engage in
internecine warfare merely for the personal advantage of one brother
or the other. This was seen in the peaceful close of the invasion
by Duke Robert, as with that of Duke Henry half a century later. The
question, in short, that arose in 1066, when a Duke of the Normans
asked his barons to make him King of the English, arose once more in
the days of his son, when a King of the English asked his barons to
make him Duke of the Normans.
It was here no question of 'the laws and rights of Englishmen':[35] it
was to no folkmoot that William Rufus spoke. When we read of the King
in his court, composed of his tenants-in-chief,[36] as surrounded by
'no small part of the nation',[37] when we hear of the mass of
'the Assembly ... crying Yea, yea';[38] when we learn that 'a
great numerical proportion, most likely a numerical majority, were
natives',[39] we are fairly prepared for the astounding statement
that:
The wide fields which had seen the great review and the great
homage in the days of the elder William, could alone hold the
crowd which came together to share in the great court of doom
which was holden by the younger.[40]
For we see that in all these fantasies of a brain viewing plain facts
through a mist of moots and 'witan', we have what can only be termed
history in masquerade.
[Footnote 1: Stubbs' _Const. Hist._ (1874), i. 510.]
[Footnote 2: _Ibid._, p. 577.]
[Footnote 3: _Select Charters_ (1870), pp. 28-9. So too,
preface to _Rog. Hoveden_ (1871): 'It may be placed on a par
with St Thomas's opposition to Henry II in 1163' (iv., pp.
xci-xcii). So also _Early Plantagenets_ (1876), p. 126, and
_Const. Hist._, i. 510.]
[Footnote 4: _Norm. Conq._, v. 675, 695.]
[Footnote 5: See above, p. 377.]
[Footnote 6: _Early Plantagenets_, p. 126.]
[Footnote 7: _Const. Hist._, i. 509.]
[Footnote 8: _Ibid._, p. 510, and pref. to _Rog. Hoveden_,
iv., pp. xci-xcii.]
[Footnote 9: _England under the Angevin Kings_, ii. 350.]
[Footnote 10: _Early Plantagenets_, p. 126.]
[Footnote 11: 'Precepit rex Ricardus omnibus episcopis et
abbatibus Angliae ut de suis baroniis novem milites facerent
decimum, et sine dilacione venirent ad eum in Normanniam,
cum equis et armis in auxilium contra Regem Franciae. Unde et
abbatem oportuit respondere de iiii. militibus mittendis' (ed.
Camden Soc, p. 63).]
[Footnote 12: 'Præparavit maximam expeditionem ita ut duo
milites de tota Anglia tertium pararent ad opprimendum
Gualenses.' _Robert de Torigni_.]
[Footnote 13: 'Tertium cum omnibus armis totius Angliae
militem die nominato mandavit venire Wintoniam.' Ric. Devizes
(Rolls Series), p. 409.]
[Footnote 14: 'Cumque summoneri fecisset omnes milites suos,
et eos inde convenisset, responderunt feudos suos, quos de
Sancto Ædmundo tenuerunt, hoc non debere, nec se nec patres
eorum unquam Angliam exisse, set scutagium aliquando ad
praeceptum regis dedisse' (_ibid._).]
[Footnote 15: 'Abbas vero in arcto posito, hinc videns
libertatem suorum militum periclitari, illinc timens ne
amitteret saisinam baronie sue pro defectu servicii regis,
sicut contigerat Episcopo Lundonensi [? Lincolnensi] et multis
baronibus Angliæ, statim transfretavit, et ... in primis
nullum potuit facere finem cum rege per denarios. Dicenti
ergo se non indigere auro nec argento, sed quatuor milites
instanter exigenti', etc. (_ibid._).]
[Footnote 16: 'In quibis conservandis sive exhibendis hactenus
fere per tredecim annos a rectis praedecessorum meorum
vestigiis non recessi' (_Magna Vita_).]
[Footnote 17: 'Ad publicam rem tuendam' (_Abingdon Cart._, ii.
3).]
[Footnote 18: 'Quatuor milites stipendiarios optulit abbas.
Quos cum rex recepisset, apud castellum de Hou misit. Abbas
autem in instanti eis xxxvi. marcas dedit ad expensas xl.
dierum. In crastino autem venerunt quidam familiares regis,
consulentes abbati ut sibi caute provideret, dicentes werram
posse durare per annum integrum vel amplius, et expensas
militum excrescere et multiplicari in perpetuum dampnum ei et
ecclesiae suae. Et ideo consulebant ut, antequam recederet
de curia, finem faceret cum rege, unde posset quietus esse
de militibus predictis post xl. dies. Abbas autem, sano
usus consilio, centum libras regi dedit pro tali quietantia'
(_Jocelin_, p. 63). It is noteworthy that thirty-six marcs
would represent just three shillings a day (for forty days)
for each knight, the very sum named by Hoveden. In 1205
the pay named in John's writ was two shillings a day (home
service), but both these sums are largely in excess of the
eight pence a day paid, as we have seen, under Henry II, the
discrepancy being incomprehensible, unless the higher wage
implied a larger following.]
[Footnote 19: Dr Stubbs held [1870] that he acted 'not
on ecclesiastical but on constitutional grounds' (_Select
Charters_, p. 28), though he subsequently [1871] doubted
whether 'the grounds of the opposition' were 'ecclesiastical
or constitutional' (Pref. to _Hoveden_, iv., p. xci), and even
admitted that 'the opposition of St Hugh was based not on
his right as a member of the national council, but on the
immunities of the church' (_Const. Hist._, i. 578).]
[Footnote 20: _Hoveden_, iv., xcii.]
[Footnote 21: 'Antiquas immunitates perdendo.']
[Footnote 22: 'An Unknown Charter of Liberties.' _English
Historical Review_, viii. 288 _et seq._]
[Footnote 23: See Dr Stubbs' Pref. to _W. Coventry_, p. lxiv.]
[Footnote 24: _English Historical Review_, viii. 293.]
[Footnote 25: _Ibid._]
[Footnote 26: _Will. Rufus_, i. 222.]
[Footnote 27: _Ibid._, i 222.]
[Footnote 28: Mr Freeman quotes this passage and duly renders
it in his text (i. 232).]
[Footnote 29: _Ibid._, i. 22.]
[Footnote 30: _Ibid._, i. 222.]
[Footnote 31: _Norm. Conq._, iii. 290.]
[Footnote 32: 'Turmas optimatum'--'barones'. Cf. _supra_, pp.
247, 262.]
[Footnote 33: _Will. Rufus_, ii. 56-7.]
[Footnote 34: _Norm. Conq._, iii. 294-6, 298.]
[Footnote 35: _Supra_, p. 398.]
[Footnote 36: At Salisbury, January 13, 1096.]
[Footnote 37: _Will. Rufus_, ii. 57.]
[Footnote 38: _Ibid._, 59.]
[Footnote 39: _Ibid._, 57.]
[Footnote 40: _Ibid._, 56.]
RICHARD THE FIRST'S CHANGE OF SEAL (1198)
With the superficial student and the empiric politician, it
is too common to relegate the investigation of such changes
to the domain of archæology. I shall not attempt to rebut
the imputation; only, if such things are archæology, then
archæology is history.--STUBBS, Preface to _R. Hoveden_, IV,
lxxx.
Historical research is about to pass, if indeed it is not already
passing, into a new sphere--the sphere of Archæology. The central idea
of that great advance which the present generation has witnessed in
the domain of history has been the rebuilding of the historical
fabric on the relatively sure foundation of original and contemporary
authorities, studied in the purest texts. Chronicles, however, are not
inexhaustible: for many periods they are all too few. The reaper has
almost done his work; the turn of the gleaner has come. The smaller
_quellen_ of history have now to be diligently examined and made to
yield those fragments of information which will supplement, often
where most needed, our existing stock of knowledge.
But this is not our only gain as we leave the broad highways trodden
by so many before us. Those precious fragments which are to form our
spoils will enable us to do more than supplement the statements of
our standard chroniclers: they will afford the means of checking, of
testing, by independent evidence, these statements, of submitting our
witnesses to a cross-examination which may shake their testimony and
their credit in a most unexpected manner.
As an instance of the results to be attained by archæological
research, I have selected Richard the First's celebrated change of
seal. Interesting as being the occasion on which the three lions first
appear as the Royal arms of England--arms unchanged to the present
day--it possesses exceptional historical importance from the
circumstances by which it was accompanied, and which led, admittedly,
to its adoption.
Historians have agreed, without the least hesitation, to refer this
event to the year 1194, and to place it subsequent to the truce of
Tillières or about the beginning of August. 'That Richard I,' writes a
veteran student,[1] 'adopted a new seal upon his return from the Holy
Land is a matter of notoriety.' Speed, in fact, had shown the way. We
are told by him that 'the king caused [1194] a new broad seale to
be made, requiring that all charters granted under his former seale
should be confirmed under this, whereby he drew a great masse of money
to his treasurie'.[2] The Bishop of Oxford, with his wonted accuracy,
faithfully reproduces the statement of Hoveden (the original and sole
authority we shall find for the story), telling us that 'Amongst other
oppressive acts he [Richard] took the seal from his unscrupulous
but faithful chancellor, and, having ordered a new one to be made,
proclaimed the nullity of all charters which had been sealed with the
old one.'[3] Mr Freeman similarly places the episode just before 'the
licenses for the tournaments' (August 20, 1194), and consistently
refers to Dr Stubbs's history.[4] Miss Norgate, in her valuable work,
our latest authority on the period, assigns the event to the same
date, and tells us that 'Rog. Hoveden's very confused account of the
seals is made clear by Bishop Stubbs'.[5] Mr Maitland, in his noble
edition of 'Bracton's Note-book', gives a case (ii. 69) in which a
charter sealed 'secundo sigillo Regis Ricardi' was actually produced
in court (1219), and explains that 'Richard had a new seal made in
1194', referring to Hoveden for his authority.[6]
It should be observed that all these writers rely merely on Hoveden,
none of them throwing any light on the process of confirmation, or
telling us how it was effected, and whether any traces of it remain.
An independent writer, M. Boivin-Champeaux, in his monograph on
William Longchamp, discusses the episode at some length, and
asserts that the repudiated documents were 'assujettis, pour leur
revalidation, à une nouvelle et coûteuse scellure'. Like the others,
however, he relies on the authority of Hoveden, and consequently
repeats the same date.
In the course of examining some ancient charters, I recognized one
of them as nothing less than an actual instance of a confirmation
consequent on this change of seal. But its incomprehensible feature
was that the charter was confirmed on August 22, 1198, having
originally been granted, 'sub primo sigillo', so recently as January
7th preceding. How could this be possible if the great seal had been
changed so early as August 1194, and if the first seal, as stated
by Dr Stubbs, was 'broken' on that occasion? Careful and prolonged
research among the charters of the period (both in the original and in
transcripts) has enabled me to answer the question, and to prove that
(as, of course, the above charter implies) the change of seal did
not take place in 1194, but 1198, and between January and May of that
year.
Original charters under the second seal, confirming grants under
the first, are distinctly rare. I have found, as yet, but one in
the Public Record Office, and only two at the British Museum. But
of originals and transcripts together I have noted twenty-eight. The
dates of the original grants range from September 5, 1189, to January
7, 1198 (1197-8), and of the confirmations from May 27, 1198, to April
5, 1199.[7]
In a single instance there is fortunately preserved not only the text
of the confirmation charter, but also that of the original grant.[8]
From this we learn that the charter of confirmation did not
necessarily give the wording, but only the gist ('tenor') of the
original grant. We are thus brought to the instructive formula
invariably used in these charters:
Is erat tenor carte nostre in primo sigillo nostro. Quod quia
aliquando perditum fuit, et, dum capti essemus in alem[anniâ],
in aliena potestate constitutum, mutatum est. Huius autem
innovationis testes sunt Hii, etc., etc.
We may here turn to the passage in Hoveden [ed. Stubbs, iii. 267]
on which historians have relied, and see how far the reasons for the
change given in the charters themselves correspond with those alleged
by the chronicler.
Fecit sibi novum sigillum fieri, et mandavit, per singulas
terras suas, quod nihil ratum foret quod fuerat per vetus
sigillum suum; tum quia cancellarius ille operatus fuerat inde
minus discrete quam esset necesse, tum quia sigillum illud
perditum erat, quando Rogerus Malus Catulus, vicecancellarius
suus, submersus erat in mari ante insulam de Cipro, et
præcepit rex quod omnes qui cartas habebant venirent ad novum
sigillum ad cartas suas renovandas.
In both cases we find there are two reasons given; but while one of
these is the same in both, namely the temporary loss of the seal
when Roger Malchael was drowned, the other is wholly and essentially
different. The whole aspect of the transaction is thus altered. To
illustrate this I shall now place side by side the independent glosses
of the Bishop of Oxford and of M. Boivin-Champeaux:
Richard's first seal was lost Sur deux exemplaires usuels du
when the vice-chancellor was grand sceau, le premier, que
drowned between Rhodes and Cyprus portait le vice-chancelier
in 1190; but it was recovered Mauchien, avait été perdu lors
with his dead body. The seal that de l'ouragan qui, en vue de
was now broken must have been the Chypre avait assailli la flotte
one which the chancellor had used Anglo-Normande, le second était
during the king's absence. resté en Angleterre; mais il
Richard, however, when he was at avait subi, par suite de la
Messina, had allowed his seal to revolution du 10 octobre, de
be set to various grants for nombreuses vicissitudes.
which he took money, but which Richard se prévalut de ces
he never intended to confirm. circonstances jointes au
Therefore probably he found it désaveu de la trève de Tillières
convenient now to have a new pour publier un édit aux termes
seal in lieu of both the former duquels tous les actes publics
ones, although he threw the blame passés sous son règne, qui
of the transactions annulled upon avaient été légalisés avec les
the chancellor. The importance of anciens sceaux étaient frappés
the seal is already very great. de nullité et assujettis, pour
(_Const. Hist._, i. 506, note.) leur revalidation â une nouvelle
et coûteuse scellure. Cette
ordonnance aurait pu, à la
rigueur, se colorer, si elle
n'avait concerné que les actes
accomplis pendant l'expédition
et la captivité du roi; mais le
comble de l'impudence et de
l'iniquité était de l'appliquer
même à ceux qui avaient précéde
son départ ou suivi son retour
(p. 223).
Thus both writers assume that there were two seals, one which remained
in England with the chancellor, and one which accompanied the king
to the east. They further (though Dr Stubbs is somewhat obscure) hold
that the two excuses given refer respectively to the two seals, thus
discrediting both. But when we turn to the charters themselves, we
find but one seal mentioned, and to that one seal alone both the
excuses refer. The king explains that on two occasions it was, so to
speak, 'out on the loose'--(1) when his vice-chancellor was drowned;
(2) when he himself was captured in Germany. This was, of course, the
seal which accompanied him to the east.[9] The king makes no allusion
to any other or to the chancellor. Such charters and grants as are
known to us all proceed from the king himself, either before he left
Messina or after he had reached Germany on his return. No charter or
grant of Longchamp, as representing him, is known. In short, the whole
of our record evidence points one way: the charters which the king
proclaimed must be confirmed, and which we find brought to him for
that purpose were those which he had himself granted, and no other.
Lastly, even had we nothing before us but the passage in Hoveden which
all have followed, I contend that it may, and indeed ought to be,
read as referring to a single seal. But it is, as Miss Norgate justly
observes, 'very confused', from its allusion to the chancellor's use
of the seal. That allusion, however, would most naturally refer to the
truce of Tillières, and not to the use of a separate seal in England.
Therefore even if we accepted, which I do not, Hoveden's statement, it
would not warrant the inference that has been drawn.
Again, when Miss Norgate writes of the 'withdrawal of the seal from
William', and when Dr Stubbs tells us that the king 'took the
seal from' him, these statements may have two meanings. But M.
Boivin-Champeaux is more precise: 'L'emploi de ces procédés emportait
le mépris et la violation non seulement de tous les actes étrangers
au chancelier, mais encore de tous ceux où il avait mis la main. Il ne
pouvait décemment conserver les sceaux. Le roi les lui enleva.' This
is a distinct assertion that Longchamp was deprived of his office. Yet
all our evidence points to the conclusion that he remained chancellor
to the day of his death.
Dismissing Hoveden for the time, and returning to the testimony of the
charters, we have seen that they point to the event we are discussing
having taken place in 1198, between January 7, at which date the first
seal was still in use, and May 27, when charters were already being
brought for confirmation under the second seal. Passing now from the
charters to the seals still in existence, we learn from Mr Wyon's
magnificent work[10] (which has appeared since I completed my own
investigation) that the first seal was still in use on April 1,
1198,[11] while an impression of the second is found as early as May
22, 1198.[12] Thus our limit of time for the change is narrowed to
April 1-May 22, 1198.[13] The evidence of the charters and of the
seals being thus in perfect harmony, let us see whether this limit
of date corresponds with a time of financial difficulty. For, so
desperate a device as that of the king's repudiation of his charters
would only have been resorted to at a time of extreme pressure. What
do we find? We find that the time of this change of seal corresponds
with the great financial crisis of Richard's reign. The Church had
at length lost patience, and had actually in the Council at Oxford
(December 1197) raised a protest. The 'want of money', in Miss
Norgate's words, was 'a difficulty which ... must have seemed
well-nigh insurmountable'. Preparations were being made for a huge
levy at five shillings on every ploughland. It was at this moment
that the desperate king repudiated all the charters he had granted
throughout his reign, and proclaimed that they must be 'brought to him
for confirmation; in other words ... paid for a second time'.[14]
Let us now look at the other chroniclers. R. Coggeshall is independent
and precise:
Accessit autem ad totius mali cumulum, juxta vitæ ejus
terminum, prioris sigilli sui renovatio, quo exiit edictum
per totum ejus regnum ut omnes cartæ, confirmationes, ac
privilegiatæ libertates quæ prioris sigilli impressione
roboraverat, irrita forent nec alicujus libertatis vigorem
obtinerent, nisi posteriori sigillo roborarentur. In quibus
renovandis et iterum comparandis innumerabilis pecunia
congesta est (p. 93).
This is in complete accordance with the now ascertained fact that
Richard changed his seal, and regranted the old charters, within the
last year of his life. Similarly independent and precise evidence is
afforded by the Annals of Waverley:
MCXCVIII. Anno X. regis Ricardi præcepit idem rex omnes cartas
in regno suo emptas reformari, et novo sigilli sui impressione
roborari, vel omnes cassari, cujuscunque dignitatis aut
ordinis essent, qui vellent sua protectione defensari, vel
universa bona sua confiscari.[15]
Further, we read in the Annals of Worcester[16] and in the _Historia
Major_ of M. Paris (ii. 450-451)[17] that in 1198, 'circaque festum
sancti Michaelis, mutatæ sunt carte quas prius fecerat rex Ricardus,
novo sigillo suo'. Now this Michaelmas fell just in the heart of the
period within which the process of confirmation is proved to have been
going on.
We see, then, that the evidence (1) of the seals, (2) of the charters,
(3) of the circumstances of the time, (4) of other chroniclers, all
concur in pointing to the spring of 1198. And now we will lastly
appeal to Hoveden against himself. After telling us of the king's
proclamation on the refusal of the religious to contribute to the
carucage in the spring of 1198, he adds:
Præterea præcepit idem rex ut omnes, tam clerici quam laici,
qui cartas sive confirmationes habebant de sigillo suo veteri
deferrent eas ad sigillum suum novum renovandas, et nisi
fecerint, nihil quod actum fuerat per sigillum suum vetus
ratum haberetur (iv. 66).
This passage, which ought to be compared with Coggeshall, is merely
ignored by Dr Stubbs. Miss Norgate, however, boldly explains it as 'a
renewal of the decree requiring all charters granted under the king's
old seal to be brought up for confirmation under the new one'
(ii. 356). But the passage stands by itself, as describing a new
measure.[18]
The only conclusion to be drawn from this cumulative evidence is that
the earlier passage in Hoveden (1194) which has been so universally
accepted, must be rejected altogether. Against the facts I have
adduced it cannot stand.
Incredible though it may seem that a court official, a chronicler
so able and well informed, indeed, in the words of his editor, 'our
primary authority for the period',[19] should have misstated so
grossly an event, as it were, under his own eyes, we must remember
that 'Hoveden's personality is to a certain degree vindicated by a
sort of carelessness about exact dates'.[20] Yet even so, 'few are
the points', our supreme authority assures us, 'in which a very
close examination and collation with contemporary authors can detect
chronological error in Hoveden'.[21] Nor, of the eight anachronisms
laboriously established by Dr Stubbs, does any one approach in
magnitude the error I have here exposed. The importance of every
anachronism in its bearing on the authorship of the chronicle is by
him clearly explained.
How far does the rejection of this statement on the change of seal
affect the statement which precedes it as to the Truce of Tillières?
Hoveden places the latter and the former in the relation of cause and
effect:
Deinde veniens in Normanniam moleste tulit quicquid factum
fuerat de supradictis treugis, et imputans cancellario suo hoc
per eum fuisse factum, abstulit ab eo sigillum suum, et fecit,
etc. (iii. 267).
This is rendered by Dr Stubbs in the margin: 'He annuls the truce and
all the acts of the chancellor passed under the old seal.' The passage
has also been so read by M. Boivin-Champeaux (p. 221); but if that is
the meaning, which I think is by no means certain, Hoveden contradicts
himself. For he speaks five months later of the truce ('Treuga quæ
inter eos statuta fuerat duratura usque ad festum omnium sanctorum')
as not having stopped private raids on either side.[22] R. de Diceto,
mentioning the truce (ii. 120), says nothing of it being annulled, nor
does R. Newburgh in his careful account. On the contrary, he implies
that it held good, though the terms were thought dishonourable to
Richard (ii. 420). I should, therefore, read Hoveden as stating simply
that Richard was much annoyed at ('moleste tulit') its terms, and was
wroth with the chancellor for accepting them.
In addition to correcting the received date for Richard the First's
change of seal, the evidence I have collected enables us, for the
first time, to learn how and to what extent the confirmation of
the charters was effected. We find that it was no sweeping process,
carried out on a single occasion, but that it was gradually and slowly
proceeding during the last eleven months of the king's life. Here,
then, is the explanation of another fact (also hitherto overlooked),
namely that only a minority of the charters were ever confirmed
under the second seal.[23] For the king's death abruptly stopped the
operation of that oppressive decree which was being so reluctantly
obeyed.
It should be superfluous for me to add that, in thus correcting
previous statements, I have not impeached the accuracy of our greatest
living historian, who could only form his judgment from the evidence
before him. The result of my researches has been to show that the
evidence itself breaks down when submitted to the test of fact.
_Granted_ _at_ _Confirmed_
1. 16 April, 1194[24] Winchester 27 May, 1198
2. 2 December, 1189 Canterbury 15 June, 1198
3. 10 October, 1189 Westminster 1 July, 1198
4. 28 November, 1189 Canterbury 1 July, 1198
5. 1 July, 1190 Dangu 3 July, 1198
6. 5 September, 1189 Westminster 30 July, 1198
7. 17 September, 1189 Geddington 30 July, 1198
8. 25 April, 1194 22 August, 1198
9. 12 December, 1194 Chinon 22 August, 1198
10. 7 January, 1198 Vaudreuil 22 August, 1198
11. 8 December, 1189 Dover 10 September [1198]
12. 6 December, 1189 Dover 15 September [1198]
13. 14 March, 1190 Nonancourt 18 September, 1198
14. 23 March, 1190 Rouen 19 September, 1198
15. 29 November, 1189 Canterbury 9 October, 1198
16. 6 October, 1189 Westminster 20 October, 1198
17. 7 December, 1189 Dover 24 October, 1198
18. 23 March, 1190 Rouen 5 November, 1198
19. 7 December, 1189 Dover 10 November, 1198
20. 17 September, 1189 Geddington 12 November [1198]
21. 28 November,[25] 1189 Canterbury 13 November, 1198
22. 27 July, 1197 Isle d'Andely 14 November, 1198
23. 10 November, 1189 Westminster 30 November, 1198
24. 5 August, 1190 Marseilles 7 December, 1198
25. September, 1197 Rouen 17 December, 1198
26. 1189 [No place] 24 January, 1199
27. 15 April, 1190 Evreux 3 March, 1199
28. 22 June, 1190 Chinon 11 March, 1199
29. 25 April, 1194 Portsmouth 5 April, 1199
_at_ _Grantee_ _Authority_
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.