A History of the County of Cambridge and the Isle of Ely: Volume 4, City of Ely; Ely, N. and S. Witchford and Wisbech Hundreds. Originally published by Victoria County History, London, 2002.
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The Medieval Liberty of Ely
The franchises enjoyed in the Isle of Ely by the bishops and monks during the Middle Ages included three main groups of privileges. In the first place, the Isle, like the rest of the church's lands, was an administrative immunity. The bishop, the prior and their successors, said a charter of Edward III in 1343, shall make return of summonses of the Exchequer and all other royal writs in their hundreds and their fees, so that no sheriff or bailiff shall enter them save in case of default by the bishop, prior or their servants. (fn. 1) In other words, throughout the liberty all administrative duties normally carried out by sheriffs and their subordinates or by special royal commissioners were the responsibility of officers of the franchise. They arrested and imprisoned criminals; executed sentence upon them (fn. 2) and collected amercements; distrained upon collectors of royal taxes to make payment at the Exchequer; (fn. 3) arrayed men-at-arms for the king's armies. (fn. 4) So the list might go on through all the infinite variety of activities of medieval local government. This right to exclude the king's ministers might not be absolute. The king issued commissions of sewers with a jurisdiction over the Isle; (fn. 5) and the surveyors of weights and measures appointed in 1350 were to exercise their office in the liberty of the Bishop of Ely as well as elsewhere in the county of Cambridge. (fn. 6) These are, however, small exceptions to a general rule.
Secondly, the Isle was a judicial immunity. No suit was owed from within it to the Cambridge shire court, nor did the sheriff hold any court whatsoever inside its boundaries. Further, in the words of letters patent of 1369, 'the abbots and afterwards the bishops . . . have always used that whenever any resident be impleaded within the Isle or without by denizens or foreigners of any cause or anything emergent within the Isle before secular justices, that plea shall be determined before the bishop's justices at Ely'. (fn. 7) This claim was asserted against the king's justices itinerant in the shires; (fn. 8) it was also interpreted as excluding the Isle from the jurisdiction of the central king's courts. Cases were successfully claimed by the bishop from the King's Bench (fn. 9) and Common Pleas; (fn. 10) the jurisdiction of the Exchequer of Pleas was denied (fn. 11) and the right of the steward and marshal to exercise any office in the Isle when the king was at Ely. (fn. 12)
There were, of course, exceptions once again to these broad rules. When the bishopric was in the king's hand the justices in eyre were no longer excluded; (fn. 13) and even at other times the sheriff might be empowered to enter the bishop's court by writ of accedas ad curiam. (fn. 14) In addition, the bishop's courts must commonly have taken action in accordance with royal writs; (fn. 15) and when the bishop claimed cognizance of cases begun in the royal courts, the plaintiff would be told to proceed in the bishop's court that justice might be done to him there, but otherwise he might return to the king's court. (fn. 16) In a like manner, the king retained the right to pardon offenders convicted by justices in the Isle. (fn. 17) Royal intervention might even be sought by the bishop or prior when faced with a situation that either found hard to manage. The prior asked for a special commission of oyer and terminer in 1292 when the Abbot of Ramsey and others had mowed his meadows and reed bed at Sutton, and felled his timber. (fn. 18) So did the bishop in 1328 when his bailiff was prevented from holding the view of frankpledge; (fn. 19) and when certain men at Ely erected a mill to the loss of the bishop's multure, and resisted the bishop's bailiff when he tried to take away the upper millstone. (fn. 20) There was much give and take between the king and the lords of the liberty of Ely. The king insisted upon the due performance of responsibilities, but he also was willing to defend the bishop and prior in the rights given by him and his ancestors to the church.
Finally, the liberty of Ely involved important fiscal privileges. From the 13th century these consisted in the main of the rights of bishop and prior to receive all judicial profits from their lands and men, both in the Isle and elsewhere. At an earlier date the liberty had also been exempt from national taxation, from gelds and Danegelds; (fn. 21) but this exemption never applied to the new taxation of the 13th and later centuries. In the early 13th century the bishop and prior might collect these royal taxes in the liberty, (fn. 22) or special royal collectors might be appointed by the king for the purpose; (fn. 23) but the liberty paid just the same. From 1270 onwards, moreover, the same commissioners seem to have acted both in the Isle and the shire proper. (fn. 24) The extension of the church's immunity to include lay subsidies may well have been something that no king felt he could afford. In 1327, the Isle contributed rather more than one-sixth of the total subscribed by the county of Cambridge to the twentieth levied in that year. (fn. 25)
In order to sustain the responsibilities of the liberty, there grew up in the Isle a series of courts, institutions and offices analogous to those which existed in the shire outside it. At the same time, though close, the analogy was not complete. Both the differences and the similarities will emerge soon enough from a description of the institutions of the liberty. Beginning with the courts and at the bottom of the franchisal ladder, the jurisdiction exercised in the shire in the view of frankpledge and the sheriff's tourn was, in the Isle, everywhere in private hands. But the arrangements for exercising this jurisdiction varied somewhat in the different hundreds. In Ely hundred the bishop held courts leet in his demesne manors, (fn. 26) and the prior may also have had a leet at Ely; (fn. 27) but there was no sheriff's tourn in the hundred, and presumably the business appropriate to it was transacted in the leets. Nor was there a sheriff's tourn in Wisbech hundred; and there, moreover, instead of a leet being held in each manor, a single leet was held for all the vills of the hundred. (fn. 28) It was held annually at Wisbech, and the juries of each vill came forward in turn to present the faults and failings of their own community. The business of the leets, how ever, was very similar in both hundreds: the normal petty police matters, common nuisances, and offences against the assizes of bread and ale, together with a liberal admixture of domanial matters which might, more properly, have been dealt with in the halimotes.
The arrangements in Witchford hundred were rather different. The bishop held courts leet in his four demesne manors and in two or three other places in the hundred; (fn. 29) but elsewhere the leets were held by the prior or by other manorial lords. (fn. 30) In these circumstances (so unlike those of Ely and Wisbech hundreds, where most of the manors and courts were the bishop's) the bishop made arrangements more closely akin to those in the shire outside the liberty. Twice a year he sent his steward on a sheriff's tourn in the hundred; and each vill attended before him by its free jury and by the reeve and four men to make presentments about petty crime and breaches of the assizes. (fn. 31)
In the holding of the courts leet the bishop and the prior had equal rights in their own lands; but all the higher franchises in the Isle belonged to the bishop alone. First amongst these were the hundred courts, which, by the 13th century, were three in number. It is less easy to say when the practice of holding three separate courts was instituted. In Saxon times the 'two hundreds' seem to have been convened, at least on occasions, in a single assembly at the north gate of the monastery; (fn. 32) and in 1086 'the two hundreds which meet at Witchford' were certainly not two separate geographical areas. (fn. 33) By the later 12th century, however, some progress seems to have been made in the development of separate courts for the hundreds. 'All the men of the two hundreds, the chronicler says, ought to assemble fortnightly at Ely or at Witchford, or at Modich which is a quarter part of these hundreds.' (fn. 34) The court at Modich was almost certainly the original of the Wisbech hundred court; but it is hardly clear whether the courts which assembled at Ely and Witchford were already two separate courts, or merely alternate meetings of the same court. By the 13th century Ely and Witchford hundreds had become clearly separated from one another, and there remained only faint vestiges from the time when there had been only one court for the two hundreds. Yet still, in the 15th century, there was a court at Ely named the 'court of the palace' calling upon suitors from both the southern hundreds of the Isle. But the suitors did not come, and no business was done; and for all the mark it leaves upon the records, the court had done little or nothing for many generations. (fn. 35) Yet the list of those who should have come preserves some shadow of the court which assembled from the two hundreds to meet Ealdorman Aethelwine and Wulfstan of Dalham.
Of the three hundred courts, the surviving rolls of Wisbech hundred go back to the later years of Edward I. (fn. 36) At that period, it was still a very busy court. It met every three weeks and transacted all the normal business of a hundred court; in addition, however, it exercised supervision over the leets and halimotes in the hundred and did a very great deal of business which was seignorial rather than franchisal. It exacted dues and obligations from the bishop's tenants, both bond and free; and spent a very great deal of time. registering transfers of customary land. Indeed, in the reign of Edward II, a special court called the curia bondorum or curia nativorum seems to have been set up to deal with this business. It was a court for the whole hundred; and like the hundred court, at first at least, (fn. 37) it met every three weeks. Apart from seignorial business, moreover, it dealt with petty cases of trespass and the like very similar to those which are found on the rolls of the hundred court itself. These and other peculiarities of the Wisbech hundred are no doubt explicable by the fact that most of the men of the hundred were the bishop's tenants, and that convenience could dictate what business should be done in the different courts held in the hundred.
Witchford hundred court was very different, if only because its suitors were commonly men of other lords. There is, therefore, no domanial business recorded on its rolls. True, these rolls have not survived for any period before the later 14th century; and by that time their content is meagre, since the justices of the peace had taken away much of the business which earlier would have been done in the hundred court. (fn. 38) In fact, at this date, Witchford hundred court was concerned mainly with minor pleas of debt. In the case of Ely hundred, there is a preliminary difficulty of identifying the court in which the hundredal jurisdiction was exercised-particularly as there are no surviving records of any of the Ely courts of a date earlier than the 15th century. Of these records, those which bear most resemblance to the rolls of a hundred court derive from the Barton Court of Ely. They contain mainly pleas of debt and covenant-familiar residual business of the hundred courts in the later Middle Ages; and extracts from earlier rolls preserved by Wren make it clear that the Barton Court exercised jurisdiction over Ely and its hamlets, and over Littleport and Downham. (fn. 39) On the other hand, it was hardly an orthodox hundred court. It met weekly like a borough court; and (as at Wisbech) it transacted seignorial as well as hundredal business-for in it lands were let to farm, tallages and reliefs exacted, labour services enforced, and licences to marry given to the customary tenants. (fn. 40) The explanation of these peculiarities may be the same as that for the peculiarities of Wisbech hundred. In both cases, moreover, the hundredal business may have been tacked on to a pre-existing domanial court when the single administrative area of the 'two hundreds' broke up into its three constituent hundreds.
By contrast with the leets and hundreds, the courts in which the bishop exercised his highest franchises have left very few records, and no rolls at all, from medieval times; and their nature has therefore to be inferred from less direct evidence. The extent of their jurisdiction, however, was succinctly laid down on a number of occasions. The bishop had the right to determine before his own justices all pleas, including pleas of the crown, which arose in the Isle of Ely. Therefore, all commissions upon which the king's justices acted outside the liberty, and all writs touching cases in the Isle, should be handed over to the bishop's ministers. The bishop's justices would then execute the commissions and determine the cases. (fn. 41)
In the 13th century, this superior jurisdiction appears to have been exercised in a single court sitting at Ely, with powers as comprehensive as the courts held by the king's justices in eyre. This court in the early part of the century was called merely curia Elyensis; (fn. 42) later and more commonly it was termed the court of the bishop's itinerant justices. (fn. 43) It is clear, from extracts preserved in a conventual register, that these justices of the bishop did everything that the royal itinerant justices did in the shires. They heard civil pleas that were terminated by a final concord; executed criminal justice; heard presentments about escaped felons, claims to liberties and the verdicts of coroners' inquests. (fn. 44) If the rolls of this court had survived, they would differ little (if at all) from the rolls of the king's justices in eyre.
In the later 13th and 14th centuries, however, we begin to hear something of more specialized judicial commissions. As early as 1286 there is a record of the bishop's justices of jail delivery. (fn. 45) Though Edward I in that year claimed the right to appoint such commissions for the Isle, (fn. 46) in fact the bishop would appear to do so from time to time in the later Middle Ages, (fn. 47) just as he also seems to have felt empowered to appoint justices of oyer and terminer. (fn. 48) More important still, the bishop claimed the right to have his own justices of assize for the liberty. We hear of them holding a plea of mort d'ancestor in the reign of Edward II; (fn. 49) in the middle of the 14th century the Bailiff of Wisbech hundred was collecting amercements imposed by them; (fn. 50) and, at the end of the century, they were holding three sessions a year in the Isle just as the king's justices of assize were doing outside it. (fn. 51) These justices of assize, furthermore, seem gradually to have acquired a comprehensive jurisdiction in all common law matters; and to have stepped more or less into the shoes occupied by the bishop's itinerant justices of an earlier date. By the mid-15th century, they were called justices ad omnia placita, and equipped with a commission of assize in its comprehensive late medieval form and a commission to deliver the jails of the liberty. (fn. 52) Nor is it surprising that the active members of these panels of justices-the members designated for the quorum-should have included a number of professional lawyers. Such were John Prisott in 1448, who may have become Chief Justice of Common Pleas the following year; and Gilbert Haltoft (1448-56), already Chief Baron of the Exchequer; and Thomas Billings, first appointed a justice in the Isle in 1455 and continuing in the office after he became a justice of the King's Bench in 1464 and Chief Justice in 1469. (fn. 53)
Finally, in the course of the 14th century, the Bishop of Ely also acquired the right to nominate his own commissions of the peace in the Isle. As early as 1338 Bishop Montacute was commanded to cause the statutes for maintaining the peace to be observed in the Isle, and to see that his bailiffs and ministers arrested persons transgressing against them. (fn. 54) In 1358, during the exile of Bishop Lisle, the king appointed special justices of labourers for the liberty. (fn. 55) By Richard II's reign the bishop's franchise in this particular was fully worked out, (fn. 56) and the justices in the shire were warned not to meddle with the keeping of the peace in the Isle, but to send copies of their commission to the bishop to execute as he had been wont to do. (fn. 57) At this period, the bishop's justices apparently held sessions quarterly at Ely, and others at Wisbech, Whittlesey, Sutton, and Haddenham. (fn. 58) By the end of the 15th century, however, the sessions had settled down at Ely and Wisbech, where the modern successors of the medieval justices continued to hold them down to the reign of William IV. (fn. 58)
This medieval liberty of Ely, naturally enough, called for a considerable administrative staff to shoulder the responsibilities involved in it. During most of the Middle Ages, the central figure of this staff was the bishop's steward. At least from the 13th century he was first and foremost a judicial official. He sometimes presided in the courts leet and the hundred courts; (fn. 59) and he was clearly the normal president in the higher franchise courts. It was to the steward that the itinerant justices at Cambridge in 1272 handed over their commission; (fn. 60) and in 1286 it was said that 'all the stewards of the bishop since the last eyre have held all pleas of the crown, in delivering jails, in pleas de iuratis et assisis, and in pleading all pleas which can be pleaded in the county court; and all this they have been able to do from time beyond memory'. (fn. 61) It is hardly surprising that, in Richard II's reign, the bishop's steward should have been called the bishop's justiciar. (fn. 62) Only in the 15th century was he beginning to be pushed aside by more narrowly professional men of the law, no doubt the ancestors of the later Chief Justices of the Isle of Ely.
Meanwhile, the steward had acquired a number of assistants. By the end of the 13th century, there was a deputy steward in the Isle; (fn. 63) and in effect the constable of Wisbech castle acted as a second deputy in the northern part of the liberty. (fn. 64) Each of the hundreds had its own hundred bailiff (fn. 65) and its own coroner; (fn. 66) and both bishop and prior had jailers looking after their prisons at Ely (fn. 67) (the bishop's other jail at Wisbech was in the charge of the constable and his staff (fn. 68) ). Finally, at the very bottom of the hierarchy were village and manorial officers: constables of the peace doing the work they did everywhere; (fn. 69) beadles and haywards, who made attachments and collected amercements; (fn. 70) and even the reeves, keeping the rolls of the tithings in the manor. (fn. 71) The total number of officials must have been quite large; but then they administered a very comprehensive and exclusive liberty.
This does not, however, necessarily mean that the liberty of Ely was a county palatine, even though 'divers statutes' might describe it so. In Coke's words:
'The power and authority of those that had counties palatine was king-like, for they might pardon treasons, murders, felonies and outlawries thereupon. They might also make justices of eire, justices of assise, of gaol-delivery and of the peace. And all original and judicial writs, and all manner of indictments of treason and felony, and the processes thereupon were made in the name of the persons having such county palatine.' (fn. 72)
Clearly the medieval bishops of Ely possessed a number of these powers. As indicated above, however, the right to pardon men convicted in the bishop's courts was retained by the crown; and the justices appointed by the bishop took action upon royal commissions and writs handed over to them by the king's justices sitting in the shire of Cambridge. (fn. 73) It may be significant in this respect that no chancery grew up in the medieval liberty of Ely comparable with the chanceries of Lancaster and Durham; for this liberty, however extensive, was never quite a palatinate.