CHAPTER XII
CONFEDERATION
The fact that the English burghers took so impatiently the one hindrance that lay in their path to independence and supremacy is itself a proof of the habit of prosperity and success which they were accustomed to accept as part of their natural heritage in the pleasant place where their lot had fallen. How little they had at any time to reckon with opposition is obvious from the striking fact that they never found themselves compelled to form any kind of union or alliance for common purposes. Here the story of English boroughs is in vivid contrast to that of the continental towns. The powerful confederations formed in European countries by towns battling against tremendous odds to protect their commerce, liberty, and law, had no parallel among the comparatively peaceful and regular conditions of English life, where self-government was so easily attained, and where trade was so generally secure, that the necessity never arose for the creation of any such associations. Towns on the royal demesne stood in no need of any combined effort to defend their freedom; and the towns on ecclesiastical lands or feudal estates that had grievances to complain of were few, scattered, and subject to so many different lords that combination among them would have been wholly impossible. Organized common action was therefore practically unknown among the English boroughs; for the loose tie of affiliation which bound together communities of which one had adopted the charter and copied the customs of another was a bond so slight as to be scarcely recognized,722 and implied no mutual obligations whatever. In moments of excited strife or rapid constitutional growth a borough might undoubtedly become fired by the example of a near neighbour, or catch the contagion which spread from some community more advanced in its experiments and daring in its pretensions; but these movements of sympathy, of voluntary affiliation, of emulation, never resulted in any kind of federation or alliance. For the developement of its liberties each borough was ultimately left to depend only on its own resources; while such societies as were constituted in later days in England for trading purposes took the form of federations of men not of towns.723
There was but one exception to this general rule, and in the Confederation of the Cinque Ports we have the single illustration in England of an association of towns created and maintained for common interests. From Seaford in Sussex to Brightlingsea in Essex ports and villages were bound together into one society. To the original group of the Five Ports – Hastings, Sandwich, Dover, Romney, and Hythe, whose alliance probably reaches back to the time when the English learned war and commerce from Danish masters – the two Ancient Towns, Winchelsea and Rye, had been added immediately after the Norman Conquest; and what with the desire of these seven to divide their burdens of taxation and war charges with the neighbouring villages, and the readiness of the villages on their side to seek admission to the Port privileges,724 an association had in course of time been evolved consisting of seven head Ports with eight corporate and twenty-four non-corporate members,725 all gathered under the rule of the Lord Warden. To the last they bore traces of foreign influences in the name of Jurats by which they called their “portmen,” and of Barons which they gave to their “freemen.” But amid the curious vicissitudes of their history, and the odd incidents of their ownership in times when it seemed natural and simple to grant away the very frontier defences of England to Norman counts and Breton dukes and abbots of Fécamp and monks of Canterbury,726 and in later days after English kings had realised the advantages of themselves owning the main gates by which their country opened on the European world,727 these communities remained firmly united under their federal government.728 The King’s writ did not run in the Ports unless it bore the seal of the Lord Warden. Exempt by charter from serving on juries, assizes, or recognizances outside their own territory,729 the freemen could be impleaded only in their own courts.730 No prisoner from the Ports could be summoned by the Judges to Westminster, and in the case of an express order from the King “some demur should be made to the first mandate till it be known with certainty it is his pleasure,”731 while on the other hand any stranger who committed a crime within their liberties might be claimed by the mayor and jurats from any lordship in the realm, even from the King himself.732 They had even, after a fight which lasted for generations, successfully resisted all attempts to bring their local jurisdiction within the general judicial system of the kingdom, and the Justices Itinerant were shut out from crossing their boundaries or sitting at their Court of Shepway.733 Ancient privileges were jealously guarded. “New Acts of Parliament,” they said, “ought not to alter the free customs.”734 No deodand was given to the Crown “because it never was the custom here.”735 If an ecclesiastical officer came from Canterbury to make an inventory of the goods of a Sandwich man who had died without a will, he was not allowed to act because it was contrary to the ancient customs and liberties of the town.736 Their corporate dignity was officially recognized on great occasions of State, such as the coronation of a King or the consecration of an Archbishop, when the envoys of the Cinque Ports were treated with special honour and sat at the right hand table in the hall; and each of the Ports in turn sent representatives to carry the canopy over the newly-crowned King, and after the ceremony to bear it back with its silk hangings, its spears, and its silver bells, as the town’s spoils.737
As to the idea or principle which held this society of towns together and the purpose which it was meant to serve, the definition given by a minister of the Crown would probably have been very different from that given by a baron of the Ports. To a statesman the confederation of the Cinque Ports was organized in the interests of the whole country, and maintained as the bulwark of national safety; and the policy of West Saxon rulers, of Danish conquerors, of Norman kings, of Angevin statesmen, had all alike aimed at the increasing of its public utility. Holding their posts in the first line of defence against invasion, the Cinque Port towns were bound to keep a sufficient number of men within their walls for defence against the enemy, and watch that inhabitants were not driven away by the imposition of undue local taxes; they had to bear heavy costs for ordnance, ammunition, fortifications; to set a nightly watch in every borough and at every dangerous creek or harbour; to have armed forces ready to meet the first brunt of attack, while their citizens might expect in time of war to see their houses sacked and burned again and again. They had to provide every year fifty-seven ships and 1,197 men with provisions for the defence of the kingdom,738 and if these were not enough in number or in size greater ones and more were required of them. If they hesitated to comply with such demands, or if they were shown not to have held firm against the invader, they were roughly reminded of the bargain on the terms of which alone all their privileges were held, and saw their charters and franchises seized into the King’s hand.739
This view of the organization of the Cinque Ports for the public service was visibly represented in the rule of the King’s officer, the Lord Warden of the Ports and Constable of Dover Castle. His authority the men of the Cinque Ports were never for a moment allowed to forget; and the Lieutenant of Dover or his messengers, continually riding round the Ports with message or proclamation or to “make inquisition,”740 were everywhere helped on their way by dinners, breakfasts, pipes of wine, or a play at the public expense. From Dover came proclamations “warning us of the Danes”; ordering “that no man should quarrel with other for none old sores”; commanding “to arrest the men who came from beyond sea without leave and without billets”; or to seize ships for crossing over to Flanders; calling out vessels “to watch the sea”; or to serve the King in siege or battle during the French war; summoning men “to keep the Castle of Dover”; or decreeing the amount of benevolences to be paid to the King.741 The subjection of the whole confederation to his rule was publicly recognized every year in the Court of Shepway, when at his summons there came from every port the mayor and a little group of jurats carrying with them the required gifts and dues, wine and swans and fish and spices to furnish breakfast for officials and suitors at the court; or costly offerings to soften the hearts of wardens and judges, and induce them on their first entering into office to look favourably on their subjects. Before them as they sat on either side of the Warden on the open plain near Lympne742 proclamation was made as to the taxes to be raised by the confederation, the special military services required of the freemen, or the new decrees issued by the Government; and special offences against the Crown were judged. A whole community might be charged with a breach of the King’s peace,743 or an aggrieved corporation made application that officers of the Ports should be sent to help in the arrest and punishment of some stranger who had committed a crime in their town; and prisoners from the various towns accused of coining false money, treason, or counterfeiting the King’s seal,744 were tried, and if found guilty were forthwith tied on a sledge, drawn round the circuit of Shepway, and hanged on the spot.745
Nor did the authority of the Warden end at Shepway. As Constable of the Castle he had his court-martial in Dover.746 As Admiral he could order a “quest of the Admiralty” to be held on the sea-shore, or perhaps at some one of the Ports which had offended against the laws of the confederation – a calamity which the town at once sought to avert by negociations and bribes “that he should not hold the court.” As Chancellor he issued precepts and summonses as to the services to be performed by the Ports in return for their privileges, and exercised in his court of chancery the complicated jurisdiction that gradually arose out of these records. There were moments when the King was stirred to a recollection of his sovereignty – moments when the towns had pushed independence too far, or when the treasure in the royal coffers had fallen low; then from Westminster a writ of enquiry would come as to the privileges of the Ports, delegates were summoned from the various towns to appear before the Warden, and might find themselves kept many days and nights at Dover747 while “inquisition was made for the King.” Sometimes they were ordered to assemble on the sea-shore. Sometimes the Warden came down the steep path of the castle hill to the tiny church of S. James, set in the first little reach of level ground below the walls of the fortification, and there the jurats came up to meet him from their lodgings in the town below, and after days of discussion probably returned home with heavy news of fines to be levied for buying a new charter, or for getting the confirmation of some doubtful privilege.
In the authority of the Warden we see the view held at Westminster about the uses of the Cinque Ports and the main object of their existence. To the people on the other hand the association had another and wholly different character. So completely was all the business of the Warden’s court at Shepway looked on by the portsmen as the King’s affair, and so slight was their sense of participation in it, that they presently gave up attending it altogether, leaving the Warden at last to preside in solitary state. In course of time even the ancient site was abandoned, and instead of the annual assembly at Shepway the president only summoned an occasional court of appeal to be held at Dover,748 and there, surrounded by a group of lawyers to advise him, sat on the chalk cliff fronting the castle to hear certain cases immediately touching the King’s interest.749 Meanwhile the barons of the Ports had their own tradition of independence and self-government; and the popular belief as to the object and meaning of the confederation was embodied in another court which sat on the Broad Hill, near Romney – a court where the Lord Warden had no seat.750 It was there that the whole interest of the people centred, as turning their backs on the King’s courts and leaving him to conduct through the Lord Warden the matters which were his peculiar business, they occupied themselves with the management of their own special affairs. For to the fisherman of the coast the confederation of the villages was in its origin and working simply a great trading company of the Ports for the protection of their staple business, the herring fishery, and for the preservation of their ancient customs of harbourage and sale on the strand at the mouth of the Yare – a matter which became of absorbing importance when their monopoly was threatened by the fishermen of Yarmouth, so that from the time of John onwards they could only preserve their interests by ceaseless vigilance and by costly appeals to King and Parliament, and Council.751 In the eyes of the barons therefore the great assembly of the confederation was that which yearly met to discuss the business of the Yarmouth fair. And this was in the strictest sense a court of the people themselves, summoned only by common consent,752 presided over by the chief magistrate of each Port in turn, and in which every town was represented by its mayor or bailiff, three elected jurats, and three commons. The sheltered harbour of Romney formed a sort of natural centre of the Ports, and the delegates met for business on the Broad Hill or Bromhille of Dymchurch close by, whence they possibly took the name of Brodhull, a name which in later days when the first site was forsaken and forgotten and the delegates met in Romney itself, became changed into “Brothyrhill” or Brotherhood.753
On the first day of meeting the business, as befitted an association for trading purposes which dated back to the time when the herring fishery was the staple trade of the Ports, was invariably the Yarmouth fair, and the court heard the report of the bailiffs of the last fair who stood bare-headed before them, and elected their successors who were to govern the coming fair.754 But other interests had grown up round the assembly hill. The seafaring population, masters and mariners of trading barges, saw in the union of Ports the power which regulated the relations of seamen on either side of the Channel. To the taxpayers it was a voluntary association for the equitable adjustment of their burdens. And all the inhabitants alike recognized its importance for maintaining against lords of other franchises the privileges which had been granted them in return for their services.755
On the great day when the Yarmouth fair was under discussion the Court of Brotherhood sat alone; but on the following days when other work was to be done – the distribution between the various towns of the taxation756 ordered at Shepway, the discussion of commercial relations,757 the care of the common corporate privileges of the confederation758– the Court of Brotherhood was joined by the Court of Guestling, probably a descendant of the ancient Hundred Court once held in the old town of Gestlinges near the border-line of Kent and Sussex.759 To this court each town might send the mayor, two jurats, and two commoners; so that if all the delegates came the number of the united assemblies would be seventy-seven; as a matter of fact however in the time of Henry the Sixth the business was done by about thirty members.760 All the important affairs of the Cinque Ports practically lay in their hands, and their decisions, registered as Acts of the Brodhull by the Common Clerk of the Cinque Ports,761 became the law of the whole confederation.
Constantly reminded of their ancient covenant and confederation by imminent perils, arduous exertions and recurring taxes, trained to habits of vigilance and mutual support, the Cinque Ports kept a jealous watch against the slightest infraction of the privileges of their united body. But there was one matter with which the confederation had nothing whatever to do. Subject to a variety of jurisdictions, some of them depending on the King, some on the Archbishop, some on a bigger neighbouring town, the special liberties of each borough had been developed under very different conditions; and the whole association took no heed of the defence of the liberties of any single Port against its lord, or the enlargement of the privileges of any one member of their society as apart from the whole.762 The corporate existence of the united Cinque Ports was a thing altogether apart from the corporate existence of each town within it; and indeed combination for any purpose of securing local liberties would have been out of the question in a confederacy where a certain outward uniformity was but the screen of endless diversity, and towns bound together by special duties and privileges were widely separated from one another in all the conditions of government.763 This is very evident if we compare the situation of Sandwich and Romney – much more so if we consider the position of any of the subordinate members of the Ports.
I. For many centuries Sandwich belonged to the monks of Christ Church, Canterbury, and so long as it was a humble little port powerful kings like Eadgar, Cnut, Henry the First, and Henry the Second had been content to have it so, and with indifferent acquiescence confirmed the monastic rights over the town. But when in the course of time Sandwich became the port through which almost the whole of the continental trade with England passed, when its commerce and revenue increased till it stood far before Dover in importance,764 when it was the chief harbour from which monarchs or their ambassadors set sail for France, or from which armies were sent forth in time of war, the King began to look more seriously on the powers exercised over it by the convent. An inquest ordered by the Crown in 1227 reported in favour of the rights of Christ Church over Sandwich, but by judicious bargaining matters were finally arranged to the royal satisfaction. At the price of a grant of lands in Kent Edward the First bought the town, and though the monks were still allowed certain lands and houses free from municipal charges, and continued to receive large sums from the wharf which was known as Monkenkey with its crane for loading and unloading ships,765 and from the warehouses enclosing it, they had to abandon their powers of taxing at discretion all passengers and goods which crossed the bounds of their territory.766
The Sandwich people had elected their own mayor since the beginning of the thirteenth century; while the royal interests were now looked after by a bailiff appointed by the King.767 The townsmen however kept a jealous watch over their own prerogatives. When in 1321 Christ Church obtained a royal writ to protect their property from the town taxes the mayor and community refused to accept it because it had been issued to the King’s bailiff, and the convent had to get a new writ.768 The bailiff’s powers were carefully defined and kept in strict subordination to those of the mayor. He collected the King’s dues on goods brought into the town;769 and it was he who summoned the Hundred Court every three weeks to meet in S. Clement’s church for view of frankpledge, for pleas of land, questions of trespass, covenant, debt, battery, bloodshed, and so on;770 but he could not hold the court without the mayor’s leave, nor issue the summonses without the mayor’s orders.771 The mayor for his part, if he was elected in S. Clement’s, the church where the courts of the King were held, had his seat of government in S. Peter’s, a church that stood in the very centre of the town near the Market-place and Common Hall, and in whose tower the “Brande goose bell” hung which summoned jurats and council men to the Common Assembly, and rang out the hours for the market. He gathered the Town Council for business to S. Peter’s, and in S. Peter’s he sat every Thursday, and if business required it on other days, to judge the people.772 Though the bailiff sat by his side and took part in the business of the court, yet for offences against the corporation the mayor and jurats might punish the freemen “without consulting the bailiff or any one else.”773 To them belonged the entire regulation of trade and the management of weights and measures, for “the bailiff has nothing to do with this business.” In no case was he allowed to interfere with the town market; “that business belongs wholly to the mayor and jurats,” the town customs declared.774
II. Sandwich in fact after it had passed to the Crown enjoyed the full freedom common to the royal boroughs. Bound only by allegiance to the general law of the Cinque Ports it long maintained, as we shall see later, a real independence of local life and a vigorous democratic temper. But in Romney, in the very port where the general assembly of the Cinque Ports held its deliberations, the conditions were wholly different. For a moment Romney like other towns enjoyed its share of profits in the growing trade of the country.775 The vintners engaged in the wine trade rose from ten in 1340 to forty-eight who headed the list of taxpayers in 1394; a new ward was called after its cloth-dealer Hollyngbroke;776 and merchants from Prussia, Holland, Spain, and Flanders, citizens of Bristol and of London, men from York and from Dorset gathered within its walls. But a doom was already on the town. As early as 1381 it had begun its vain struggle against winds and tides which silted up its port, destroyed its river channel, and forced the Rother into a new bed. Dutch and Flemish engineers had been called over to make scientific sluices and barriers, and the whole population had been summoned out to dig a water-course, but in spite of incessant efforts the men of Romney saw their trade driven into other ports.777 The forty-eight vintners of 1394 had sunk to forty-four in 1415, to five in 1431, and to one in 1449.778 The burghers were being steadily ruined, and the story of their decay remains registered in the long lists of citizens who pledged their goods for debt, giving in promise of payment saddles, cups, table-cloths, helmets, cloths, which were delivered by the creditor into the hands of the bailiff for keeping in the Common Hall “according to custom,” and when the day of payment had passed were appraised by bailiff and jurats, often at half or a quarter of the value at which they had been first declared, and handed over to the creditor.779
Through good and evil fortune moreover Romney had to maintain a constant struggle for freedom. The Archbishop of Canterbury was lord of the manor, and appointed, subject to the ratification of the Lord Warden, the bailiff of the town,780 choosing if it seemed good to him one of his own servants or squires, and by a curious exception from the general law having liberty to select a publican.781 The bailiff fixed the days for holding the market. He gathered in the Archbishop’s dues, made sure that his share of any wax, or wine, or goods cast on the shore from wrecks was handed over, and that the jurats collected in proper time the capons and swans and cygnets which had to be sent to him, or that a porpoise taken by the fishermen should be duly despatched to the lord. The common horn sounded twice at the market-place and at the cross to summon the people to his court.
The question of government and of the bailiff’s position was however always in debate. The “best men of the town” rode to Archbishop Courtenay “to know his will and what he proposed to do against their liberties”; and for the following century the Romney men were always on the watch, and heavily taxed in gifts and bribes “to protect the liberty of the town that the said lord might not usurp it.”782 The bailiff’s power indeed was strictly limited. So far as the administration of justice went he was absolutely controlled by the twelve jurats who were yearly elected “for to keep and govern the port and town;”783 and “in case the bailiff do other execution than the sworn men have judged against the usage of the town” they might fine him £10 to the commons.784 But this was not enough. In 1395 the jurats made suit to the Lord Archbishop to “put his bailiwick into the hands of the community of Romney at ferm,”785 and for the century which followed they were always seeking for some means of gaining complete control of the government. For lack of better security a simple expedient was discovered. The townspeople allowed a custom to grow up that the Archbishop should not be expected to appoint a new officer every year, but that whoever was sent to the town should be understood to hold his post permanently. When in 1521 the prelate complained that the jurats would not let his bailiff enter Romney786 they answered that when there was no bailiff in the town the Archbishop might send a new one, but that the accustomed bailiff who had been admitted seven or eight years ago was still living and was “of good name and fame,” and so the place was not void; moreover, they said, a bailiff must make his appearance with certain formalities and “be of good opinion,” but this new man had not been sent with the proper forms. The fixity of tenure787 which the townsfolk thus raised to the dignity of a “customary” right was a real guarantee that the bailiff should no longer be a mere dependent holding his post at the pleasure of a distant master, trembling under the apprehension of hazarding his employment by preferring the interests of the commonalty to those of his lord, and only intent on heaping up treasure against the day when his credit and employment should come to an end. He became more and more identified with the townsfolk among whom he lived, and on whose approval he was made dependent by their contention that he should hold office so long as he was, in their opinion, “of good name and fame.”
But the burghers were still dissatisfied with so precarious a tenure of independence. There was a proposal which came to nothing to unite the bailiff and jurats of the town with the bailiff and jurats of the marsh; but in 1484 the people profited by the troubles of Richard’s reign to plan a thoroughgoing revolution.788 They set up a mayor for themselves, and sent to have a silver mace made at Canterbury under the very walls of the Cathedral precincts. The Archbishop called in the help of the Crown and the great people of the London law courts, and after much battling and negotiation the matter was ended before the year was out by a Privy Seal being sent down to Romney to depose the mayor. Before a generation had passed away however the struggle broke out again with new vigour, and in 1521 town and prelate were again quarrelling over all the old grievances.789
The main point of the burghers’ argument was to deny the Archbishop’s assertion that “the town is all bishopric.” The jurats contended that “from all time” they had had the privileges of one of the capital Five Ports, that their grant of “streme and strond” of the sea and all other rights came to them from the King and not the Archbishop; and that they held the greater part of their town directly from the Crown,790 on which land the Archbishop had no right to enter, and the commonalty had rights of justice. So also the Archbishop had no right to the marsh and pasturage of four hundred acres which had once been creek and haven, but had been left dry land since about 1380 by the withdrawal of the sea a good half-mile from the town, for this “void place” left by the main course of the stream through the town belonged to the King. Arguing therefore from this fiction of being on royal soil the jurats went on to claim the popular control of justice which was used in royal boroughs, and frowardly kept the courts without the bailiff, boldly asserting in their own defence that he was at the best but a minister of the King’s courts in Romney and not a judge; for if the town courts were in fact courts of the King, they were under the royal grants and charters which ordained that mayor and jurats, or bailiff and jurats, elected by the people, were to hold courts, hear pleas, and have fines and amercements and other profits of leets and law-days; and therefore since the bailiff of Romney was not elected by the commons he was clearly excluded and had nothing to do in the said courts save as minister and executioner, and any record of pleas before him was void. In times past, they declared, he had merely been allowed to sit among them by favour, and not of duty. The fines raised at leets and law-days they claimed for the town’s use, saying that these had only been given to the most Reverend Father by the favour of the jurats to obtain his good lordship; but that he had never any right whatever to leet or law-day, fine or amercement. So persistent were their protestations of independence that it seems as though ultimately the Archbishop’s heavy wrath settled down to rest on the town. When Cranmer leased out the bailiwick of Hythe to the townspeople,791 he refused to give to Romney a similar lease – a gift which it had begged of Courtenay a hundred and fifty years before. Cranmer’s lordship indeed came to an end at the Reformation, but even then Romney was for a time governed by its senior jurat, and it was not until 1563 that it seemed to have sufficiently purged its iniquity, and that Elizabeth finally allowed its people to elect a mayor.
III. From the instances of Sandwich and Romney it is evident that the bond which existed between the chief Ports only served certain definite ends, and had no influence whatever on the developement of local liberties or the intimate relations of a borough to its lord. And if this was the case with the leading Ports, still less was it possible for the subordinate members of the confederation to look for aid in their private controversies. Romney itself for example in the midst of its struggle with the Archbishop was engaged in a resolute effort to retain its own hold over its dependent town of Lydd. There also the Archbishop of Canterbury was lord of the manor, both of the town and of a great part of the grazing land round it known as Dengemarsh, in which lay the fishing-station of Lydd, Denge Ness; while the rest of Dengemarsh was divided between the Abbot of Battle, the Castle of Rochester, and Christ Church, Canterbury, all alike ready to raise at any time questions of disputed rights. As far as the Archbishop was concerned the townsmen had commuted their services at his court of Aldington for a yearly payment, and became “lords in mean” of their own borough – possibly in the time of Henry the Sixth when they first began formally to use the style of Bailiffs, Jurats, and Commonalty of Lydd; but the Archbishop’s seal with the mitre was still used in deeds for selling or letting land.792