'Le juefne Rei aveit à Wincestre trové.

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.

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