The Liberty of Ely: The Liberty of Ely in modern times

Pages 15-27

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 Liberty of Ely in Modern Times

After the end of the 15th century, some of the institutions of the medieval liberty of Ely can, for the most part, be left out of the reckoning. The business done by the hundred courts, though their rolls continue down to the 17th century, had already begun to decline quite rapidly in the 14th century; (fn. 1) while the hundreds themselves, as administrative areas, were commonly replaced by the new 'divisions' of the Isle established by the justices of the peace. Courts leet, similarly, though still held at Wisbech in the reign of James II (fn. 2) and at Ely in 1715 where they cost Bishop Fleetwood £6 10s. for the steward's dinner, (fn. 3) had likewise become of small importance. The institutions which mattered in Bishop Fleetwood's time and long before were the six-monthly assizes and the quarter sessions of the justices of the peace. They form the main subjects in the history of the liberty in modern times.

The Tudor period was a time of trial for the liberty of Ely, although it emerged with less abatement than most medieval franchises. The form which this trial took may best be discussed in connexion with particular institutions; here it is enough to say that there seems to have been an attempt by Henry VII and Henry VIII to assert closer royal control over the liberty, that the Privy Council down to 1640 at least made the royal will continuously felt in the Isle, and that the long vacancy from 1581 to 1600 tended to bring the administration of the liberty into closer connexion with that of the county of Cambridge. One consequence was that, throughout the modern period, the administrative history of the Isle of Ely is much like that of any of the English shires. It was governed by a very similar group of officials, exercising much the same powers in much the same way as any other local government area of the time. In what follows, therefore, illustrations of the administrative system of the liberty are testimony in the main to the similarities between it and the system which prevailed generally. This much at least was achieved by the Tudors and Stuarts and their Privy Councils.

Nevertheless, it was still precisely during this period that the liberty acquired the title of a County Palatine. If its institutions were more and more closely assimilated to those outside its bounds, the administrative distinctness of the Isle remained. Right down to 1836 it had its own assizes and chief justice; its own justices of the peace; its own jails and houses of correction; its own rates separate from the rates of the county; its own Chief Bailiff with powers equivalent to the powers of the sheriff in the shire. (fn. 4) In these respects the Isle was treated, nearly enough, as a separate county; and that is true in other respects too, even to the extent of giving to it in 1565 its own commission for the repressing of pirates. (fn. 5) On the other hand, although it had its own Chief Bailiff, the liberty never acquired a sheriff of its own; and (as in medieval times) it continued to pay taxes along with the shire, including the ship money of Charles I and the hearth tax of Charles II. (fn. 6) This half-way status of the liberty is perhaps best illustrated by its relations with the Lords Lieutenant of Cambridgeshire. In the reign of Edward VI Bishop Goodrich secured his own appointment as Lord Lieutenant for the Isle, an office treated as quite separate from the lord lieutenancy of Cambridgeshire. (fn. 7) The bishop combined the lieutenancy with power to nominate the custos rotulorum of the Isle; (fn. 8) and so might have prepared the ground for the union of the two offices, which became normal elsewhere, (fn. 9) in the bishop's hand. A period of obscurity follows. In the early years of Elizabeth there does not seem to have been a separate lieutenancy for the Isle; on the other hand the commission for the county does not specifically include the liberty, (fn. 10) and in 1565 Lord North was told that the mustering of great horses and geldings there should be referred (as had been accustomed) to the bishop. (fn. 11) During the long vacancy after 1581, however, the Isle almost inevitably was absorbed into the jurisdiction of the Lord Lieutenant of the shire, (fn. 12) and the latter's authority was effectively exercised within it. (fn. 13) In 1598, he obtained permission to appoint a special deputy for the Isle; (fn. 14) and even after the end of the vacancy in 1600 this pattern apparently persisted. (fn. 15)

If the medieval liberty of Ely was abridged in this way, there is nothing surprising in the fact that, under Cromwell's rule, there was a Major-General whose authority included the Isle of Ely and was exercised there by a special deputy. (fn. 16) Further, at least up to 1640, the Privy Council exercised a continuous administrative supervision over the liberty. It was continuously receiving reports on every conceivable matter from the justices of the Isle; it was ready to prescribe punishment for the author of 'slanderous reports touching some of the council'; it summoned before it a justice of the peace who had suffered the Bailiff of Wisbech hundred to utter with impunity 'seditious or very scandalous speeches touching her Majesty'. (fn. 17) In a like manner, the liberty did not exclude the jurisdiction of Star Chamber, (fn. 18) or the right of the crown to appoint special justices of assize to deal with the men who rioted in 1816 for higher wages, cheaper flour, and 2d. a pint off beer. (fn. 19) And, of course, the crown retained the right to pardon and revoke pardons, (fn. 20) and to commute a sentence of death imposed at the Ely assizes for the less serious one of transportation. (fn. 21)

In all these respects the crown was continuing to exercise an old authority, or refusing to allow the liberty to obtain an exemption from the authority of new agencies developed by the State during the 16th century. At least as important was the increased control exerted over the commissions of assize and the peace in the Isle. So far as the justices of assize were concerned, they were still sitting thrice yearly in Elizabeth's reign, but later sat only twice yearly at Ely and Wisbech alternately. (fn. 22) But large changes took place in the medieval practice. Then, the king's justices in the shire had handed over their commission to the bishop's representative, and this commission was then executed in the Isle by justices appointed by the bishop. This practice changed at any rate with the accession of Henry VII. In 1491, 1501 and 1515 commissions of jail delivery were issued by the crown for the liberty, in which the king nominated the justices who were to execute them. The bishop merely reissued the same commission to the same panel of men, although he still seems to have nominated his own justices of assize. Naturally enough, however, he commissioned a group of men who corresponded very closely with the justices of jail delivery nominated by the king. (fn. 23) This practice continued; for in 1574 Lord North set at the beginning of his roll for the Ely assizes the royal patent constituting himself and others justices to deliver Ely jail. (fn. 24) By the 18th century the assizes in the liberty were held by justices nominated by the crown in commissions of oyer and terminer and jail delivery of the sort delivered to the king's justices of assize outside it. (fn. 25)

This apparent assumption of control over the assizes of the liberty was not, in fact, quite so complete as it seems to be. In the early Tudor period (possibly even under the Yorkists (fn. 26) ) the effective members of the lengthy list of justices who were nominated probably consisted of the bishop's steward of the Isle (fn. 27) and one or two important royal judges or officials. (fn. 28) The latter included, between 1487 and 1515, Sir James Hobart, the Attorney-General; and two Chief Justices of the King's Bench-Sir William Huse and the well-known Sir John Fyneux, 'steward of one hundred and twenty-nine manors and counsel to sixteen noblemen at once'. (fn. 29) If these royal judges were in fact the main figures at the bishop's assizes, then the king's control in the liberty had significantly increased during this period. Such a policy, moreover, is still suggested by the fact that in Mary's reign Sir Clement Heigham, one of her Catholic privy councillors, sat as the 'king's and queen's justice' at Wisbech when Robert. Pygot was presented for heresy. (fn. 30)

The employment of such prominent royal judges as Flowerdew, Shute and Popham to hold the assizes in the Isle by Elizabeth, (fn. 31) on the other hand, may have a different explanation. They may have sat simply because the see was vacant, and there was no bishop to nominate his own justice; for as early as 1575 the Wisbech assizes were held 'before John Goldewelle, Chief Justice for pleas within the Isle of Ely'. (fn. 32) Except during the vacancy from 1581 to 1600, in fact, from that time forward the usual president at the assizes in the Isle was the Chief Justice of the Liberty. Some of them were men of distinction in the legal world-Hitcham in 1610 was queen's Attorney-General; Sir Edward Turner was Speaker of the Cavalier Parliament; and perhaps even Edward Christian ought to be mentioned here, for although Gunning said he died 'in the full vigour of his incapacity', he was an editor of Blackstone and Professor of the Laws of England in the University of Cambridge. (fn. 33) But these chief justices were not judges in the king's courts. Bramston, indeed, seems to have resigned the justiceship of the Isle when he became Chief Justice of the King's Bench in 1635, and Godbolt when he became a judge of the Common Pleas in 1647; so did Turner on his appointment as Solicitor-General in 1670, and the aged Salathiel Lovell even when appointed Recorder of London in 1692. (fn. 34) The office of Chief Justice, moreover, was very definitely conferred by the bishop. His duty was 'to hear and determine all pleas ... real, personal or mixed, moved ... by any person whatsoever within the Isle ... which, according to the liberties of the bishop of Ely ... ought to be held and impleaded ... before the justice aforesaid in the Isle aforesaid, and to do justice therein to the parties according to the law and custom of the realm and my liberties aforesaid'. (fn. 35) He held office after 1689 'as long as he shall demean himself well therein', and previously, no doubt, at the bishop's pleasure. His patent stipulated for the payment of a salary of £10 a year by the bishop, but in fact at the end of the 18th century he was receiving the sum of 50 guineas for each attendance at the assizes. (fn. 36)

Thus, although the assizes at Ely and Wisbech were held under royal commission, from Elizabeth's reign down to the 18th century (fn. 37) the presiding judges in fact were the Chief Justice of the Isle and one or two of the justices of the peace. This was made possible by the fact that the royal commissions always included the Chief Justice and all or most of the justices of the peace in the liberty. A long list of judges might be nominated by the Crown, but effectively the list could be narrowed down to these few men who were in a direct manner the bishop's nominees. Thus, it would seem, the invasions upon the liberty by the early Tudors had not been sustained.

It was, therefore, in this manner that the Chief Justice of the Isle and his colleagues came to hold the assizes for the liberty. The occasions were not unmarked by ceremony. A coach would be sent to meet the judge, with a pair of leaders; at Wisbech there would be a nosegay for him, though not apparently at Ely; a preacher would be in attendance and trumpeters. (fn. 38) Before his arrival the Chief Bailiff would have summoned all justices, bailiffs, coroners, and constables to be there with their records and indictments; and commanded the presence of all prisoners in the jails of the liberty, and of such juries as were necessary for presentment and trial. (fn. 39) The beginning of proceedings would no doubt be delayed by the sermon; and further by the fact that Edward Christian at least 'twice during every year inflicted upon the Grand Jury of Ely a charge of unconscionable length' which 'rarely had any reference to the cases in the Calendar'. (fn. 40) He may have thought a more specific charge unnecessary: as he said, 'I will not detain you with any observations upon the indictments ... because I see several magistrates upon the Grand Jury', and he was quite convinced that 'the enlightened magistracy of the Isle' knew well enough their routine business. (fn. 41)

Much of the judicial business of the assizes was concerned with civil actions between neighbour and neighbour. In the early modern period the jurisdiction of the bishop's court in cases of this sort was probably as comprehensive as it had been in medieval times, and as late as Charles II's reign Bishop Wren could demand cognizance of such a case from the King's Bench. (fn. 42) In the 18th century, however, doubt was cast upon the legality of fines levied and common recoveries suffered in the bishop's court. Partly for this reason, and partly because the practice had grown up of allowing cases from the Isle to begin in the king's courts or to be removed there by writ of certiorari, it was noted that 'business on the pleas side' was on the decline in that century. None the less, even at this date, the liberty courts were still a great convenience for the inhabitants of the Isle since 'they have justice administered, as it were, at their very doors'. (fn. 43) It was no doubt similarly convenient that Courts of Requests, to deal more rapidly and cheaply with actions for debt under 40s., were set up at Ely in 1778 and Wisbech in 1811 (fn. 44) -although this may have helped to reduce the amount of business transacted at the assizes.

The criminal jurisdiction of the bishop's assizes, on the other hand, remained little impaired right down to 1836. It seems to be true in the 18th century that serious crime was not very common. Time and time again (such episodes as the Littleport riots apart) Chief Justice Christian could congratulate the 'enlightened magistracy' of the Isle upon the few prisoners in the calendar; and, after sixteen years of office, he could say with satisfaction in 1816 that he had 'been called upon to pronounce judgement of death upon sixteen prisoners only'. (fn. 45) That is hardly a bad record in view of the severity of the criminal law of the time. The calendar of the Wisbech assizes in 1773 is not untypical. Four men were accused of stealing a wether; one was acquitted, and the others (together with a man who had stolen a red cow) were sentenced to death, but reprieved whilst application was made for commutation of this sentence to one of transportation. The only other prisoner, who had stolen two coats and some light coloured cloth, was sentenced to transportation for seven years. Most of the applications to commute the death sentence, furthermore, seem to have been allowed. Only four of the sixteen men Christian sentenced actually suffered the death penalty; ten he recommended to mercy himself, and two others 'by the recommendation and interference of others . . . obtained from the royal clemency that lenity which was refused them by myself'. (fn. 46) It may be added, however, that the business of the assizes in the 17th century was sometimes richer in picturesque incident. Even in a few published extracts, (fn. 47) we may read of Dorothy Ellis, to whom the Devil appeared in the likeness of a great cat; of John Neale who awaited the time when the Anabaptists would preach from the pulpits, called Charles Stuart a bastard and the seed of a bastard, and laid bets against the Restoration; and of William Gotobed and others who stole lead from the Cathedral roof.

Before leaving the assizes a word should be said about procedure. Much of the work had been done in advance: each indictment was accompanied by a file of depositions taken before the justices of the peace, the verdict of a coroner's inquest, and so on. It remained only for the grand jury of the Isle to certify the indictment as a 'true bill' for trial to proceed. (fn. 48) In addition, of course, both the grand jury and the constables of parishes and hundreds might present additional faults and failings in open court; but by the 18th century in fact they were presenting very little. At the Ely assizes in 1774, the constables of Wisbech hundred did present a causeway at Outwell which had become a public danger, but otherwise 'all was well'. (fn. 49) On at least one occasion, however, in 1764, the grand jury presented an address to the Chief Justice in return for his charge.

'The inhabitants of this Isle, they told him, having long endured much Sufferings from a corrupt Administration in this Island by the Infusion of Evil Council into the mind of the Prince of this Palatinate, rejoice not a little from knowing that a Man of your understanding and righteous spirit is joined to the Cabinet Council of our Great Good Lord Doctor Mawson Bishop over this Isle.... On first reflection we are a free born people. . . . The Magistracy . . . are made for the People. . . . We this day are more. We are the Grand Jury of this Island-and as such are-the Guardians of the Lives and Liberties of our Country. . . . From hence we are led to lay open-to remonstrate on Grievances too heavy to be borne patiently, silently. The Loss of our Liberty who are free born- False Imprisonment by the Suppression of one Assize of the two. . . . Barbarities under Imprisonment little inferior to the Inquisition abroad. . . . For that End We urge on your Lordship when in Council assembled to press on others our Prelates Council a speedy redress of those Grievances . . . before Christmas next . . . [otherwise] . . . We the Grand Jury are unanimously and stedfastly purposed in January next to fly for succour to the Guardians above all of the Commonwealth of England, The Honourable the House of Commons.' (fn. 50)

It is hardly a matter of surprise that the foreman of the jury on this occasion was that same James Collier who did so much to secure an improvement of conditions in the jail at Ely. (fn. 51)

The Chief Justice held the assizes only twice a year. By contrast and in Edward Christian's words: 'The justices of the peace constitute the broad basis of the pyramid of government of this country: they are acting perpetually in their towns, villages and neighbourhoods; by their constant co-operation and unceasing exertions, the good order and tranquillity of the country are preserved.' (fn. 52) This was as true of the liberty of Ely as it was elsewhere; and in this, as in other respects, the liberty had its own particularity. This was succinctly put in 1638, during the troubles which attended the draining of the fens. One Edward Powell had given 2d. to the town crier of Ely to proclaim that all should meet next morning to go to the king to petition for their fens. When Mr. Goodrich, a justice, called Powell before him, the latter answered: 'If I deny it, the-crier's evidence, being but one man's, is no evidence; and if I confess it, what harm? For what was he and the rest of the justices? They were but bishop's justices and not the king's.' (fn. 53) Yet Powell was not quite correct as to his facts. It is true that there was a separate commission of the peace for the liberty; but this commission was issued by the king, and the justices were 'the justices of the peace of our lord the king assigned to hold and keep the peace in the Isle of Ely'. (fn. 54) It is true, on the other hand, that in the 18th century the panel of justices to be appointed was submitted to the Lord Chancellor by the bishop, (fn. 55) and that to all seeming the Chancellor normally issued the commission as requested. But there might be difficulties. Bishop Fleetwood wrote, against eight of the names he suggested for the commission of the peace in 1714:

'These eight, and ten more, the Lord Chancellor had put into Commission, to serve some purposes, without acquainting the Bishop with it, contrary to immemorial Custom, and turned four of the Old ones out. I left out the ten to vindicate the Bishop's privilege, and to show some resentment for the ill usage of my Predecessor, and left the other eight in Commission, because the good of the Isle required it, as I was told.' (fn. 56)

Such troubles may have been infrequent, but once again a change had taken place since medieval times. In 1417 the Prior of Ely had complained about the treatment of his tenants by the justices whom 'the bishop has constituted to conserve the king's peace in the Isle'. (fn. 57) The change over to royal commissions of the peace is usually associated with the statute 27 Henry VIII c. 24; (fn. 58) but here again the second Tudor may have been following in his father's footsteps. In the commission which Bishop Alcock issued in 1487 there are the significant words: 'know that the king has assigned and constituted John, Archbishop of Canterbury, etc., to be keepers and justices of the peace'; and in 1490 the terms of reference of the commission were to be such as were 'contained in the letters of the lord king'. (fn. 59) It looks as though, as in the appointment of justices of assize, the bishop's liberty may have been abruptly curtailed as soon as the Tudors ascended the throne-even though Henry VIII allowed that the bishop and his steward should always be members of the commission of the peace for the liberty. (fn. 60)

It is true, of course, that the bishop recovered control of the commission by nominating its members, just as he recovered control over the commissions of assize by ensuring that they should be led by his own chief justice. The justices of the Isle remained the bishop's justices, even though they did have the king's patent. But under the early Tudors they may have been for a time in a more literal sense the king's justices; and as the king appointed them, so he might remove them, as Thomas Megges wished him to remove Alexander Balam in 1535. (fn. 61) Perhaps it was the control exercised by the Privy Council in the 16th and early 17th centuries which in the end led the Crown to acquiesce in de facto nomination by the bishop; for the bishop's justices fulfilled all the obligations of, and were as closely supervised as, the king's justices elsewhere. They certified Chancery about the behaviour of French denizens; (fn. 62) they investigated for the Council slanderous reports and treasonable rumours; (fn. 63) they regulated corn supplies, fixed prices, and dealt with 'the foul disorders committed by badgers and like engrossers of corn, grain and other dead victual'; (fn. 64) they took measures to safeguard the recusants in custody at Wisbech castle; (fn. 65) and, when they failed to take action about scandalous speech or any other matter, they could be brought before the Council to answer for their neglect. (fn. 66)

The number of men sustaining these burdens does not seem to have been large at an early date. In 1487 and 1489 there were a dozen names in the commission, in 1490 only eight: and since men like the Archbishop of Canterbury, the Chief Justice and the Attorney-General were included, the effective numbers must have been fewer. (fn. 67) In the late 16th and early 17th centuries, Council letters were addressed to groups of justices varying in number from three to seven; (fn. 68) while the Quakers reported, in 1659, that there were only eight justices in the Isle-a number they thought too low. (fn. 69) By the 18th century, however, they might have been satisfied. The commission of 1776 contained fifty-four names. Some of these (the half-dozen peers, the dean, and the archdeacon for example) may not have been active magistrates; but this would still leave a considerable number of effective members consisting of most of the twenty-five 'esquires' and the seven rectors or vicars named in the commission. (fn. 70) It is perhaps not inappropriate that the clergyman justice would seem to have played quite a prominent part amongst the enlightened magistrates of the Isle. There were at least two of them amongst the justices who tried to check the rioters at Littleport and Ely in 1816; and another, the Revd. J. Vachell, had perhaps been active enough to stimulate the rioters to plunder his house. (fn. 71) A little earlier, there were four clergymen amongst the magistrates who had committed the five prisoners in Ely jail on Boxing Day, 1805. (fn. 72)

In the 18th century, there is no sign whatsoever that these justices received any remuneration for their services, save for the Quarter Sessions dinner the cost of which Bishop Fleetwood was concerned to abridge. (fn. 73) Indeed, it is far from clear that they had ever received payment: even in 1586, during the long vacancy, there is no mention of wages paid to them, though much is said of the fees paid to other officials from the 'justiciarius ad assisas infra Insulam Eliensem' down to the Forester of Somersham and the keeper of Downham Park. (fn. 74) However, the important thing about the justices, as Christian said, was that, paid or unpaid, they were acting perpetually in their villages and neighbourhoods. In practice this meant there was a distinction between the general body of the justices, whose activities were more or less restricted to their own localities, and a kind of inner ring who undertook the greater and more specialized responsibility of holding the sessions. The work of the wider body did not lack variety. Justices sitting singly or in pairs in their own neighbourhoods compiled most of the depositions upon which the sessions and assizes acted; (fn. 75) and took security for appearance in court, or committed to jail, those accused of offences. Two justices convicted Benett Crabb 'for prophanely swearing often oaths' at Littleport; singly or in pairs they examined vagrants and issued passes for them to go even so far as Belfast; and generally supervised the day-to-day affairs of a society still literally parochial in its government. (fn. 76) It was in this real sense that the justices were 'the broad basis of the pyramid of government'.

Benett Crabb's conviction, however, was submitted to the Quarter Sessions for confirmation; and the sessions spent much time, not only in dealing with offenders committed to their attention, but also in confirming or quashing vagrants' passes issued by local justices and otherwise supervising their acts. Formally, in the 18th century, these courts met quarterly-alternately at the White Hart in Ely and the Rose and Crown in Wisbech. In fact they met much more frequently (though hardly with absolute regularity) by means of the simple expedient of adjourning and reassembling periodically between the main quarter days. In 1740-1, for instance, there were no fewer than twenty meetings of the court; and the following time-table for the summer of 1741 seems to be quite typical. The main sessions met at Wisbech on 14 July; but further meetings were held at Wisbech on 25 July, at Ely on 1, 8, and 15 August, at Wisbech on 3 September, and again at Ely on 25 September. (fn. 77) In some cases it might be noted that there was 'nothing done at this adjournment', (fn. 78) but at least formal meetings of the justices were frequent enough to give adequate attention to business. These formal sessions might also be supplemented by less formal meetings: at Wisbech in 1827 these latter were held every Wednesday and Saturday in the new Town Hall from 12 o'clock to 3. (fn. 79)

The sessions and their adjournments were, as indicated above, very much the province of an inner ring of justices. (fn. 80) The work they did there had almost unlimited variety. They dealt, of course, with the usual range of offences, great and small. Francis Goodday had broken Benjamin Talbott's doors and windows at Sutton; Cyprian Day had feloniously stolen 5 lb. of candles, and Thomas Saunders two pieces of brass; John Harding was 'a loose, idle and disorderly fellow, being taken with wood on his shoulder'. John Woolaston, again, had been drunk but was discharged 'this time', even though Christian had advised the magistrates 'to pay particular attention to public houses' since he was convinced that the Littleport riots were 'the effect of a casual meeting of an idle rabble in an ale-house'. (fn. 81) Of course, too, from time to time, one like John Nunn would be ordered to appear 'concerning a bastard child begotten on the body of Catherine Cork, a single woman, with which the said Catherine Cork is now with child'. Some of these offenders might merely be bound over to keep the peace; a thief like Cyprian Day, on the other hand, was more likely to 'have his body stripped naked and be whipped around the market place in Ely on Saturday next . . . until his body be bloody and receive fifteen lashes and no more'. Women were no more exempt from this punishment than men.

Besides judicial work of this sort, the sessions had important administrative functions. They assessed highway rates and enforced statutory labour on the roads. They appointed drainage commissioners pursuant to a recent act of parliament. They assessed the poor rate, laid down rules for its collection, and audited the accounts of the treasurers who received and spent it. They scrutinized removal orders, and enforced upon churchwardens and overseers their responsibilities for the poor. They regulated apprenticeship; appointed constables of parishes, chief constables of hundreds, and treasurers of the poor rate; they dismissed the keeper of Wisbech House of Correction and appointed another in his place. (fn. 82) Further, though proceedings took place at the best inn available, there was a good deal of formality about them. The chairman might deliver a charge no less lengthy than that delivered by the Chief Justice at the assizes. (fn. 83) The Chief Bailiff summoned a grand jury and all the officers of the liberty as he did for the assizes; (fn. 84) and the grand jury and the constables made very similar presentments. True, in the later 18th century, they had little to say (save once, that Joseph Scorer was keeping a bawdy house at Wisbech); but a hundred years earlier it had been different. The grand jury had noticed that William Beesley had stopped a water-course, and that Jeremy Cutter had an inadequate fence between his house and the common hill next the river. The constables of Ely presented a lady who spoke evil words when asked to pay hearth tax; three men at Downham 'for walking about in the night and disordering themselves'; an Ely man who refused to lend his cart for removing' vagrants, and three Downham men who refused to pay their rates. The constables of Witchford hundred had also noted a number of men who had absented themselves from their parish churches. (fn. 85) The administrative system which stretched down from the Quarter Sessions to these village constables was a very intimate affair.

There remains the administrative staff of the liberty which gave effect to, and supplemented, the occasional action of the Chief Justice and the continuous activities of the justices of the peace. The central administrative officer was the High or Chief Bailiff of the Isle, a life officer with powers equivalent to those of the sheriff in the shire. His duties included preparation for the assizes and sessions; the return and execution of writs; financial responsibility for assizes, quarter sessions, and Ely jail; and arrangements for the execution of condemned felons. (fn. 86) Under him he had a deputy bailiff in the 18th century who seems to have taken responsibility in the northern division of the Isle; and bailiffs in the three hundreds of the Isle, the bailiff of Ely hundred being also in charge of Ely jail. His custody of this jail seems hardly to have given satisfaction at this period, (fn. 87) despite a public subscription in 1724 to repair and improve it. (fn. 88) However, when Edward Christian visited the jail and the Bridewell in 1819, he was 'happy to find, every thing in each that could contribute to the health, comfort and reformation of persons who are placed there for punishment'. (fn. 89) The sting may lie in the last phrase of his verdict.

To some extent the Chief Bailiff and his subordinates still acted within the framework of the old hundreds of the Isle. This was less applicable in the case of officials serving under the justices of the peace. As early as the 15th century the sessions of the peace seem to have been settling down at Ely and Wisbech, and already to have exercised authority in what became the 'divisions' of the Isle. (fn. 90) Of these there were two only, a northern division consisting of Wisbech hundred and the north part of Witchford hundred, and a southern division consisting of Ely hundred and the south part of Witchford hundred. (fn. 91) Each division in the 17th and 18th centuries acquired its own panel of active justices, a more or less self-contained staff, its own rates and its own Bridewell, (fn. 92) and its own coroner. In fact, by the 18th century, apart from the Chief Justice and the Chief Bailiff, only the Clerk of the Peace seems to have exercised his office over the whole of the liberty; and he enjoyed the additional titles of Clerk of the Crown, Clerk of the Assizes, Prothonotary, Chirographer, and Undersecretary in the Isle. (fn. 93)

At lower levels, each division had its own treasurer for administering the poor rate; (fn. 94) and lower still, of course, there was the great body of unpaid, parttime officials which ultimately shouldered most of the detailed work of local government. There was a chief constable for each hundred or part hundred in a division, responsible for the collection of poor rates as well as for police measures in his bailiwick (it may well have been appropriate, therefore, that the chief constable of Ely hundred in 1816 was also the local agent of Mortlock's bank). (fn. 95) At the real base of the pyramid were the parish officers: surveyors of highways; village constables who collected rates and taxes, maintained order, moved on 'strollers' and vagrants, and once in a while took a felon to London for transportation; (fn. 96) and, finally, the churchwardens and the overseers, responsible in particular for the administration of the poor law. In all these respects the liberty of Ely was very much like any other part of rural England in the 17th and the 18th centuries.

By the time of the Reform Bill of 1832, however, the external situation was changing. In the debates on that measure Macaulay said that it was time 'to pay a decent, a rational, a manly reverence to our ancestors, not by superstitiously adhering to what they, in other circumstances, did, but by doing what they, in our circumstances, would have done'. (fn. 97) From this rational point of view, the liberty of the 'prince of the palatinate' in the Isle of Ely, with his Chief Justice and his justices and his 'cabinet council', was doubtless anomalous and anachronistic. It could also, no doubt, be criticized in detail: there were no police in the Isle, and fifty special constables had to be enrolled to control an anti-Poor Law meeting near Ely in 1836; Ely jail, according to the Inspector of Prisons, was 'most inefficient' and its jailer 'old, respectable and now physically incompetent' after thirty-four years of service. (fn. 98) So the question of abolition was raised. Some opposition there was, (fn. 99) but none the less in 1836 an Act was passed 'for the extinguishing of the secular jurisdiction of the archbishop of York and the bishop of Ely in certain liberties'. (fn. 100) The Chief Justiceship of the Isle was swept away; future holders of the offices of Custos Rotulorum and Chief Bailiff were to be appointed by the Crown. The Clerk of the Peace in the Isle for the future was to be nominated by the Custos Rotulorum, and coroners were to be elected by the freeholders of the Isle. Ely jail was abolished, the assizes were to be held in the Isle under the normal provisions laid down in 3 and 4 William IV c. 71, and the Isle was to be deemed a division of the county of Cambridge. It was a division, doubtless, which had some peculiarities. Its rates were separate from those of the county-assessed, levied, and paid as though the Isle were a separate shire. It still had its own commission of the peace. These anomalies were ironed out by making the Isle into an administrative county in 1888, (fn. 101) thus preserving into contemporary times the outline of the medieval liberty of Ely.

There remains only a footnote to the acts which abolished the bishop's liberty. In the course of debates on the Justices of the Peace Bill in 1949 in the House of Lords, Lord Merthyr moved an amendment which would have had the effect of ending the right of the Bishop of Ely and his steward to sit as justices for the Isle in virtue of the statute of 27 Henry VIII c. 18. But the amendment had been anticipated. Its mover 'earned a gentle rebuke from the Lord Chancellor . . . Lord Jowitt told him that by the Statute Law Revision Act passed last year the provisions of the old act passed in the reign of Henry VIII had been repealed'. (fn. 102)


  • 1. Above, p. 12.
  • 2. Bp.'s Mun., C 10 (Court R.).
  • 3. Bp.'s Mun., A 6 (Bp. Fleetwood's Commonplace Bk.). He reduced the cost of this dinner to a maximum of £5 just as, at the same time, he scaled down the cost of the Quarter Sessions dinners and the dinner to the judge at the Assizes.
  • 4. On the general character of the Liberty in modern times see Webb, The Parish and the County, 313 et seq., Ethel M. Hampson, Treatment of Poverty in Cambs. 220, and W. Watson, An Historical Account of... Wisbech (1827), 104-5.
  • 5. Acts of P.C. 1558-70, 284, 289, 297.
  • 6. Cal. S.P. Dom. 1635, 375; 1635-6, 149; Bp.'s Mun., F 10 (Presentments of Constables, &c.).
  • 7. Acts of P.C. 1550-2, 259; 1552-4, 49, 276. Scott Thomson, Lords Lieutenant in 16th Century, 32-33.
  • 8. This was saved to the bishop by 3 & 4 Edw. VI c. 1.
  • 9. Webb, The Parish and the County, 286, 373-4.
  • 10. Despite the statement of D.N.B. xli, 170, Lord North's commission in 1569 does not seem to include the Isle: see S. Haynes, A Collect. of State Papers ... 1542-70 (1740), 560, and cf. Cooper, Annals of Camb. ii, 248.
  • 11. Acts of P.C. 1558-70, 242, and cf. Scott Thomson, Lords Lieutenant in 16th Century, 52-53.
  • 12. e.g. the commission to Lord North in 1596 (Cal. S.P. Dom. 1595-7, 296).
  • 13. See Lord North's arrangements for the trained bands of the Isle (Acts of P.C. 1588, 134).
  • 14. Ibid. 1597-8, 630, and Scott Thomson, Lords Lieutenant in 16th Century, 66.
  • 15. The commissions for Cambs. in 1602 and 1603 extended to the Isle (Cal. S.P. Dom. 1580-1625, 419; 1601-3, 206), and for Sir Simon Steward's misdeeds as Deputy Lieutenant for the Isle, which brought him to the notice of the Privy Council and Star Chamber, see Cal. S.P. Dom. 1625-6, 331, 360-1, 529; Acts of P.C. 1626, 29. It should, however, be noted that the bishop to a limited degree exercised some of the powers of a lord lieutenant, in nominating (for example) the panel of justices of the peace for the liberty (below, pp. 21-22).
  • 16. Cal. S.P. Dom. 1655-6, 175, 235, &c.
  • 17. Acts of P.C. 1571-5, 316; 1599-1600, 707-8, 731.
  • 18. e.g. Cal. S.P. Dom. 1633-4, 69.
  • 19. A Full and Correct Report of the Trials for Rioting at Ely and Littleport, by a Member of the Inner Temple (1816), esp. 1, 2, 37. The appointment of this special commission gave some offence to Edward Christian, Chief Justice of the Isle: see his Charges delivered to the Grand Juries of the Isle of Ely (1819), 386.
  • 20. See Cal. S.P. Dom. 1679-80, 193; 1680-1, 441, 455, 464.
  • 21. See below, p. 20.
  • 22. Watson, Hist. Wisb. 104, 352 n.
  • 23. Cal. Pat. 1485-94, 360; 1494-1509, 247; Bp.'s Mun., Reg. West, ff. 1a, 1b.
  • 24. Bp.'s Mun., E 1 (Gaol Delivery R.).
  • 25. Ibid., F 5: commissions of 1692, 1761, and 1793. In 1714 the bishop paid for two commissions of oyer and terminer £5 to the clerk of the Crown and £1 1s. to the Chancellor for his fiat (Bp.'s Mun., A 6 (Bp. Fleetwood's Commonplace Bk.)). It does not appear that the bishop's justices received powers to entertain cases at nisi prius, perhaps because down to the 17th century at least the liberty was exempted from the jurisdiction of the central courts of common law.
  • 26. The fact that Thomas Billings remained a justice in the Isle even after he became a judge (above, pp. 13- 14) may indicate that Tudor policy had been anticipated by the Yorkists.
  • 27. e.g. Robert Bradbery in 1491 and John Burgoyne in 1510 (Ely Dioc. Remembrancer, 1908, 180; Watson, Hist. Wisb. 110).
  • 28. Cal. Pat. 1485-94, 138.
  • 29. Foss, Biographia Juridica, 254, 359.
  • 30. Ibid. 337-8; Ely Dioc. Remembrancer, 1914, 279.
  • 31. Bp.'s Mun., E 1 and 2 (Gaol Delivery R.); Foss, Biographia Juridica, 257, 527, 612.
  • 32. Bp.'s Mun., E 1 (Gaol Delivery R., 17 Eliz.).
  • 33. Above, p. 1; Foss, Biographia Juridica, 680-1; Christian, Charges. For a very unfavourable portrait of Christian, including the final shaft quoted above, see H. Gunning, Reminiscences of Camb. i, 192-200 (1855 ed.). Gunning considers that Christian's appointment to the Chief Justiceship of the Isle was a matter of 'good fortune', though rather grudgingly he admits that the edition of Blackstone 'was very creditable to him'.
  • 34. Foss, Biographia Juridica, 116-17, 166, 415, 618.
  • 35. Patents of appointment in Bp.'s Mun., F 11 (1691, 1738).
  • 36. Receipts in Bp.'s Mun., F 11. In 1836, apparently, the chief justice's salary was £155 a year (H.O. 52/28).
  • 37. Bp.'s Mun., F 11 (Kalendars of Assizes, 1759-74).
  • 38. Bp.'s Mun., F 6 (Chief Bailiff's Accts. 1798-9), and see A. Gibbons, Ely Episc. Rec. 128-9.
  • 39. Bp.'s Mun., E 1 (Gaol Delivery R., Ely Assizes, 16 Eliz.).
  • 40. Gunning, Reminiscences, i, 200.
  • 41. Christian, Charges, 7-8, 218.
  • 42. Bentham, Ely, App. 26-27.
  • 43. Ibid. 24-25.
  • 44. V.C.H. Cambs. ii, 108 n.
  • 45. Christian, Charges, 7-8, 218, 381, 388.
  • 46. Christian, Charges, 381; Bp.'s Mun., F 11 (Kalendar of Wisbech Assizes, 1773).
  • 47. Gibbons, Ely Episc. Rec. 112-14.
  • 48. Cf. Webb, The Parish and the County, 448, and for an indictment ignored, Bp.'s Mun., F 11 (Kalendar of Ely Assizes, 1761).
  • 49. Bp.'s Mun., F 1 (Plea and Gaol Delivery R.) and F 10 (Verdicts of Grand Juries, &c.).
  • 50. The whole document is printed by Gibbons in Ely Episc. Rec. 425-6.
  • 51. J. Howard, State of the Prisons in Engl. and Wales (1780), 248-9.
  • 52. Charges, pp. iii-iv.
  • 53. Cal. S.P. Dom. 1638-9, 301.
  • 54. Bp.'s Mun., F 5 (Commission of the Peace, 1793), F 11 (Q. Sess. Min. Bk., Ely Sess., 7 Oct. 1740).
  • 55. Bp.'s Mun., F 5 for such a letter from the bishop to Henry, Earl Bathurst in 1776.
  • 56. Bp.'s Mun., A 6 (Bp. Fleetwood's Commonplace Bk.).
  • 57. Bentham, Ely, App. 31.
  • 58. e.g. Hampson, Treatment of Poverty in Cambs. 220 n.
  • 59. Bp.'s Mun., Reg. Alcock, ff. 12, 54.
  • 60. 27 Hen. VIII c. 18.
  • 61. L. & P. Hen. VIII, viii, no. 1088. Megges seems to have been an agent of Thomas Cromwell in the Isle, and to have hoped from his favour to have obtained a house and farm in the Isle which had belonged to the prior of Ely (ibid. ix, no. 754). No doubt he also hoped that his object would be brought nearer by the postscript to this letter: 'I send you a present of swans, cranes and herons. Your hundred pikes are ready when it is your pleasure to have them.'
  • 62. Cal. Pat. 1557-8, 13.
  • 63. Acts of P.C. 1571-5, 316; Cal. S.P. Dom. 1625-6, 42.
  • 64. Cal. S.P. Dom. 1581-90, 333; Acts of P.C. 1595-6, 132, 137.
  • 65. Acts of P.C. 1615-16, 383.
  • 66. Ibid. 1599-1600, 707-8.
  • 67. Bp.'s Mun., Reg. Alcock, ff. 12, 54, 58.
  • 68. Acts of P.C. 1595-6, 132-3; 1615-16, 383; Cal. S.P. Dom. 1625-6, 42.
  • 69. Cal. S.P. Dom. 1658-9, 358.
  • 70. Bp.'s Mun., F 5 (Commissions of the Peace).
  • 71. A Full and Correct Rep. 37, 40, 49; Camb. Chron. 31 May 1816.
  • 72. Bp.'s Mun., F 11 (State of the Prisoners in Ely Gaol).
  • 73. Above, note 18.
  • 74. Bp.'s Mun., D 5 (5) (Sede Vacante Receiver's Acct., 29-30 Eliz.).
  • 75. For some 17th-century samples, see Gibbons, Ely Episc. Rec. 132-3.
  • 76. Bp.'s Mun., F 11 (Q. Sess. Min. Bk., Ely, 1740-1).
  • 77. Bp.'s Mun., F 11 (Ely and Wisbech 1740-1).
  • 78. e.g. at Ely, 28 Feb. 1741.
  • 79. Watson, Hist. Wisb. 352.
  • 80. At Ely in 1740-1, for instance, two to four justices sat on the Bench, consisting of some or all of the following: Edward Partridge, Aungier Peacock, Henry Morley, and George Mayfield.
  • 81. Christian, Charges, 8-9.
  • 82. On all this see Bp.'s Mun., F 6 (Treas. Accts.) and F 11 (Q. Sess. Min. Bk. 1740-7).
  • 83. See J. Nasmith, A Charge Delivered to the Grand Jury at the Gen. Q. Sess. of the Peace, ... 2 Apr. 1799- a very lengthy discourse on poor law administration, which bears some resemblance to Christian's charges.
  • 84. Bp.'s Mun., F 4 (Notice of Q. Sess. at Wisbech July 1769).
  • 85. Ibid. F 10 (Verdicts of Grand Juries, &c.).
  • 86. Ibid. F 1 (Chief Bailiff's Acct. 1798-9) and F 11 (Pat. of Appointment for the High Bailiff, 1792). Gibbons, Ely Episc. Rec. 128-30.
  • 87. V.C.H. Cambs. ii, 108-9.
  • 88. Bp.'s Mun., F 6 (Receipts and Accts.).
  • 89. Charges, 349.
  • 90. See above, p. 14. In 36 Hen. VI a man from Whittlesey in Witchford hundred was presented before the justices at Wisbech by the constable of Witchford hundred, and there was a similar instance in 20 Edw. IV (Bp.'s Mun., G 2 (Bp. Wren's Note Bk. f. 350)-extracts from rolls which have since vanished).
  • 91. See Hampson, Treatment of Poverty in Cambs. 226 n. The north and south parts of Witchford hundred were already separately distinguished in 1640-2 (Cambs. Subs. R., 1250-1695, ed. W. M. Palmer, 17, 67). The south part had its own Chief Constable in 1741 (Bp's Mun., F 11 (Q. Sess., Ely, 31 Jan. 1741)), the north part apparently by 1769 (ibid. F 10, Verdicts of Grand Juries, &c.). The two parts are shown on the maps of Cambs. of R. G. Baker (1821) and J. & C. Walker (1837) as though they were separate hundreds but not eo nomine. In Pigot's Commercial Dir. (1830) and in the Census Returns of 1831 they are named as the separate hundreds of North and South Witchford.
  • 92. Wisbech Bridewell also served as a jail for the northern division after the castle ceased to be used for that purpose, presumably after it was leased in the later 17th century (Watson, Hist. Wisb. 131).
  • 93. Bp.'s Mun., F 11 (Pat. of Appointment for Edward Bellamy, 1802).
  • 94. Ibid. F 6 (Treas. Accts. 1741-9). There is no sign that there was ever a treasurer for the liberty as a whole, equivalent to 'county treasurers' elsewhere.
  • 95. A Full and Correct Report of the Trials . . ., 36.
  • 96. Bp.'s Mun., F 6 (Treas. Accts. 1741-9).
  • 97. T. B. Macaulay, Writings and Speeches (1871), 487 (Speech of 2 Mar. 1831).
  • 98. H.O. 52/28.
  • 99. A memorial praying for continuance of the separate jurisdiction of the Isle was presented by 350 'clergy,gentlemen and yeomen' from all over the Isle. The corporation of Wisbech, on the other hand, seem to have accepted the extinguishing of the liberty but to have wished the Isle to be treated as a separate county. They stress the fact that its population was greater than some English and most Welsh counties; that rates would increase; that Wisbech is far from Cambridge and that more time would be taken at the assizes (H.O. 52/28).
  • 100. 6 & 7 Wm. IV c. 87, amended by 7 Wm. IV & 1 Vic. c. 53. By a further Act (1 & 2 Vic. c. 94) the records of the abolished jurisdiction were placed in the charge of the Master of the Rolls; but they had not been examined by any of his officers in 1853, and have not to this day been removed from the bishop's custody. See F. S. Thomas, Handbk. of the Publ. Rec. (1853), 356; Rep. of the Royal Com. on Publ. Rec. H.C. [Cd. 6361], App. ii, 15 (1912-13), xliv; H.C. [Cd. 7544], App. ii, 39, 142 (1912-13), xlvi; H.C. [Cmd. 367], 20 (1919), xxviii; H. Hall, Repertory of Brit. Archives, 79.
  • 101. Webb, The Parish and the County, 317.
  • 102. Camb. Daily News, 22 Oct. 1949, and see 11 & 12 Geo. VI c. 62.