Origins of the Liberty of Ely
The first presumably authentic and contemporary evidence for the liberty
of Ely is contained in Edgar's charters of endowment for the refounded
monastery in 970. In order to provide the monks with food and clothing, the
king says, he has given them all the soke over the fenlands in the two hundreds,
over the five hundreds meeting at Wicklaw in East Anglia, and over all lands
now assigned to the monastery or that would be assigned to it in the future. (fn. 11)
The two hundreds of the fenland are our immediate concern. Probably they
had roughly the same bounds in 970 as had the two hundreds of the Isle surveyed by the Domesday commissioners in 1086 and as the Isle of Ely had in
more modern times. The problems raised by Edgar's charter, therefore, are
whether the king merely restored a state of affairs prevailing in earlier Saxon
times and the meaning of the soke which he conferred upon the refounded abbey.
Clearly the 12th-century chroniclers of Ely did their best to convey the
impression that Edgar did no more than restore rights enjoyed by the church
from the time of St. Etheldreda onwards. It is, on the other hand, quite certain
that no evidence has survived which permits a precise reconstruction of the
administrative geography of eastern England before the 10th century, and that
surviving accounts of St. Etheldreda's abbey are based mainly upon tradition
rather than record. Further, some evidence does exist which tells heavily
against the view that the Isle is an administrative area of extreme antiquity. It
has been suggested that, in the 7th and 8th centuries, the district 'was normally
partitioned into two spheres. The more southerly portions, including Ely, were
part of East Anglia; while the district to the north of this, that is the district
about Crowland, Thorney and Whittlesmere, were part of mid-Anglia or
Mercia.' (fn. 12) The part of the Isle about Wisbech, in turn, retained for many
generations a marked individuality of its own. Its social organization during
the Middle Ages was closely akin to that of the Norfolk marshland; it was
continuously referred to in terms which suggest that it had been originally an
East Anglian 'ferthyng', an administrative area which in this district antedated
the creation of the hundreds. (fn. 13) In short, the 'two hundreds' of the fenland of
Edgar's charter bear evident marks of artificiality, of having been constructed
out of more than one original piece. It may also be suspected that they were,
in 970, of fairly recent creation-a product of reorganization, of reconstruction.
This may have been the work of the Danish army based on Cambridge in the
9th century; or, perhaps more likely, of the West Saxon kings after they won
back eastern England from the Danes. (fn. 14)
The liberty of Ely, therefore, though still ancient, may be less ancient
than is sometimes supposed. It probably had a precise beginning in the year
970 in King Edgar's grant to the monks of soke over the two hundreds of the
fen. This leaves the problem of defining the meaning of that soke which Edgar
conceded to the church; and of tracing the steps whereby this soke came to
imply an immunity so privileged that it could be called a county palatine.
Were the rights of the monks in the Isle such as to make the two hundreds an
immunity from the very beginning ? Did they even constitute a court-holding
privilege at all ? These are the questions which modern learning suggests we
ought to ask about this Anglo-Saxon franchise. (fn. 15)
There is very little early evidence for interpreting Edgar's charters, but
some of the records of late 10th-century land-pleas may be important in this
connexion. Ealdorman Aethelwine of the East Angles, we are told, when disputes arose about the abbey's title to lands in Witchford, 'came to Ely, and
within the cemetery at the north gate of the monastery held a plea with all the
hundred present'. (fn. 16) Similarly Wulfstan of Dalham, sheriff of Cambridgeshire,
presided over a plea to the north of the monastery, the two hundreds being
gathered there. (fn. 17) Again, following a dispute about land at Stonea, 'Ealdorman
Aethelwine came to Ely, and Begmund and others were summoned to a plea
before the citizens and the hundredors once, and again, and many times';
because they failed to attend, the case was finally settled by the ealdorman in
a 'great plea' at Cambridge. (fn. 18) It is not easy to know how to interpret these
cases. They may be exceptional; the ealdorman and the sheriff may have been
specially called in by the abbot to preside over his hundred courts. On the
other hand, it is also possible that, in the beginning, the liberty of Ely was
merely a fiscal privilege. The monks enjoyed the right to receive, the emendationes delictorum from the courts of the Isle, (fn. 19) the fines and amercements in the
terminology of a later time. They may not at first have had the right to hold
the courts of the Isle themselves.
In the course of the 11th century, however, the liberty of Ely certainly
became a court-holding franchise. In 1052 Edward the Confessor gave Ely
Abbey to Wulfric 'in all things within borough and without, (with) toll and
team and infangentheof, fihtwite and fyrdwite, hamsoke and grithbrice, let his
man live where he lives and work where he works'; (fn. 20) and it was in very similar
terms that the Conqueror confirmed the liberty of Ely, (fn. 21) and later kings
throughout the 12th century. (fn. 22) The use of the terms team and infangentheof in
all these documents from the Confessor's writ onwards suggests that, wherever
the church of Ely had lands, it had its own courts where defendants in cases of
theft could vouch to warranty and where hand-having thieves could be dealt
with. (fn. 23) That these private courts included the hundred courts of the Isle is
implied, even for the time before the Norman Conquest, by two writs of
Henry I. One expresses the king's will that the men of the Bishop of Ely
should not plead elsewhere than they were accustomed to plead in the days of
the Confessor, of the Conqueror and of William Rufus. (fn. 24) The other orders all
barons holding in the bishop's hundreds to come to pleas held in the courts of
those hundreds at the summons of the bishop's bailiffs, as they had been
accustomed to come in Henry's father's time and his brother's. (fn. 25) The significance of these writs is made quite clear by Bishop Hervey's concession in 1128
to Thorney Abbey in its manor of Whittlesey of 'all those customs and secular
causes which the church of Ely has in its hundreds of Witchford'; and the
elucidation of this concession by the Bishop of Rochester as implying exemption
from suit to the bishop's court in Witchford hundred. (fn. 26)
The combined testimony of these documents makes it clear that the church
of Ely possessed the right to hold the hundred courts of the Isle of Ely in
Henry I's time, in the time of his brother and his father, and in the time of the
Confessor. How much farther back this right went there is very little to tell
us; nor is it easy to sum up the degree of immunity the church enjoyed in the
Isle either before or after 1066. There are, however, two points worth making.
First, none of the charters of the church of Ely, from King Edgar's down to
that of Henry II, suggests that there was anything special or distinctive about
the liberty of Ely in the Isle. The abbey's liberty extended over all the church's
men and all its lands; the liberty in the Isle was merely a parcel of a liberty
which the church of Ely had everywhere it had property. Presumably, therefore, at this early time the franchises of the abbots and bishops in the Isle were
analogous to those which the church had later outside the Isle. These included
the right to hold certain private hundred courts in Norfolk and Suffolk; to hold
the view of frankpledge in all its manors and hundreds; to plead in its own
courts all pleas the sheriff could plead in the public courts; to have the return
of all writs; to arrest and imprison all criminals, bring them to trial and execute
sentence upon them; to collect and retain for the use of the church all fines and
amercements in whatever court they were imposed. (fn. 27) In short, the liberty of
Ely everywhere consisted in a comprehensive immunity against the intervention
of the sheriff and his subordinates within its lands and hundreds. It must have
been a franchise which, in the Isle and elsewhere, excluded most outside interference so long as the control of local administration was concentrated mainly
in the sheriff's hands.
During the 12th century, however, the sheriff's activities in local administration were being supplemented and in part superseded by those of other
agencies, and in particular by those of the king's itinerant justices before whom,
in 1166, no man was to fail to appear on account of any liberty. In face of
these encroachments, the liberty of Ely outside the Isle became less of an immunity than in earlier times. The bishop and the prior made good a claim to
receive the fines and amercements imposed on their men, lands, and hundreds
by royal justices; (fn. 28) but this fiscal privilege conferred no exemption from the
jurisdiction of the king's courts or from the performance of suit to them. (fn. 29)
Only the Isle of Ely came to enjoy such an immunity that the king's courts
exercised no jurisdiction within its boundaries. At what precise date this franchise was established is less clear. Two charters of King Stephen, granting
Becontree hundred (Essex) to the nuns of Barking, may have some relevance
to this question. (fn. 30) The nuns were to hold the hundred 'as freely as the church
of St. Edmund and the church of St. Etheldreda of Ely hold their hundreds'.
But in both a qualification was attached: in one 'salvis aliis consuetudinibus meis
regalibus'; in the other 'salvis tantum placitis corone mee que per justiciam
meam debent placitari'. If these are genuine documents, and if the qualification
also applied to the privilege of the church of Ely in the two hundreds of the
Isle, the later exemption of that district from the jurisdiction of the king's
justices may not apply in the first half of the 12th century. There is some support for this possibility in the tale of a miracle performed by St. Etheldreda in
the reign of Henry I. She released from prison a certain Bricstan who, being
accused of stealing the king's money, had been condemned 'Radulfo Basset
sedente pro tribunali, congregatis eciam provincialibus universis apud Huntedoniam ut mos est in Anglia'. The important point is that Bricstan was a man
of Chatteris in the Isle; yet he was taken before the justice sent out into
Huntingdonshire from the king's curia. (fn. 31)
On the other hand, when the priory chronicle took final shape in the later
12th century, it was claimed that the church had the right to entertain all pleas
of the crown in the Isle and to exclude all royal ministers from the Isle. (fn. 32) In
1189, finally, Richard I's charter for the first time drew a clear distinction
between the liberty of Ely in the Isle and elsewhere. (fn. 33) The Isle was free and
quit of all royal exaction; outside the Isle the church had its sake and its soke,
toll and team and infangentheof and so on. By the early 13th century, the
exemption of the Isle from the jurisdiction of the royal courts was firmly enough
established to have given rise to institutions within it to administer higher
justice. At least as early as 1220 there was a curia Elyensis capable of hearing
a plea under a writ of mort d'ancestor. (fn. 34) By 1251 a number of tenures had
been created in the vill of Ely specifically for the defence and exercise of this
franchise. William the son of Elyas had to go with the lord's steward and
knights to Cambridge on the coming of the king's justices there, to demand
the church's liberties. Nicholas his brother and others held land for rent and
services and for performing the office of coroner; while John de Marisco had
6 acres for which he paid nothing, but he too had to be a coroner and go to
meet the justices. (fn. 35) By this date, the foundations of the medieval liberty of Ely
in the Isle were fully laid.
Before discussing this medieval liberty, however, one further preliminary
matter demands attention. One eventual result of the establishment of a bishopric at Ely in 1109 was that, in the Isle and elsewhere, the bishop and the
cathedral priory became landowners more or less independent of one another. (fn. 36)
This had consequences also for the liberty. There is nothing in Bishop Hervey's
charter of endowment for the monks to show that he gave them any share in
the franchises of the Isle; (fn. 37) while Niel's well-known charter, purporting to
come from about the year 1135 and granting to the priory judicial privileges
similar to the bishop's, has been regarded as of dubious authenticity. (fn. 38) On the
other hand, there is a later charter of Niel's which does concede to the monks
the right to hold pleas arising in their own lands; (fn. 39) and this concession was confirmed by William Longchamp towards the end of the 12th century. (fn. 40) This
agreement in principle, however, left a wide margin for disagreement about
details. On at least three occasions during the 13th century the precise extent
of the conventual liberty was submitted to the verdict of sworn inquests; (fn. 41) and
there were still points at issue between the bishop and the monks which had to
be put to arbitration in 1417. (fn. 42)
The final result of all this discussion, in general terms, can be summed up
fairly concisely. The prior and convent had their courts and their leets in all
their manors. They received the profits of justice done upon all their men,
both in their own and in the bishop's courts. They enjoyed in their own
manors administrative powers of arrest, attachment and execution of sentence.
They had a prison at Ely separate from the bishop's prison. In short, they had
all the lesser liberties the bishop had. The higher liberties, on the other hand-
the right to hold hundred courts in the Isle and plead placita vicecomitalia;
jurisdiction over pleas of the crown; the execution and return of royal writs-
these were reserved to the bishop. Thus, in treating of the lesser franchises of
the liberty, material can be drawn indifferently from conventual and episcopal
records; but the conventual records contain little about those highest franchises
which made the liberty of Ely very nearly a palatinate.