Feudal England: Historical Studies on the Eleventh and Twelfth Centuries

by John Horace Round

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.