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), confirm 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.

[¹] Archæological Review, iv. 439-44.

[²] ibid., p. 441.

[³] The Cinque Ports, p. 64.

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

[⁵] The Cinque Ports, p. 63.

[⁶] ibid., p. 71.

[⁷] Supra, p. 421.

[⁸] The Cinque Ports, p. 26.

[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.

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

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

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

[¹²] The Cinque Ports, pp. 77-9.

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

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

[¹⁵] See my paper on the origin of 'The Mayoralty of London', in Archæological Journal (1894).