The Liberty of Ely: Origins of the Liberty of Ely

Origins of the Liberty of Ely

The first presumably authentic and contemporary evidence for the liberty of Ely is contained in Edgar's charters of endowment for the refounded monastery in 970. In order to provide the monks with food and clothing, the king says, he has given them all the soke over the fenlands in the two hundreds, over the five hundreds meeting at Wicklaw in East Anglia, and over all lands now assigned to the monastery or that would be assigned to it in the future. (fn. 1) The two hundreds of the fenland are our immediate concern. Probably they had roughly the same bounds in 970 as had the two hundreds of the Isle surveyed by the Domesday commissioners in 1086 and as the Isle of Ely had in more modern times. The problems raised by Edgar's charter, therefore, are whether the king merely restored a state of affairs prevailing in earlier Saxon times and the meaning of the soke which he conferred upon the refounded abbey.

Clearly the 12th-century chroniclers of Ely did their best to convey the impression that Edgar did no more than restore rights enjoyed by the church from the time of St. Etheldreda onwards. It is, on the other hand, quite certain that no evidence has survived which permits a precise reconstruction of the administrative geography of eastern England before the 10th century, and that surviving accounts of St. Etheldreda's abbey are based mainly upon tradition rather than record. Further, some evidence does exist which tells heavily against the view that the Isle is an administrative area of extreme antiquity. It has been suggested that, in the 7th and 8th centuries, the district 'was normally partitioned into two spheres. The more southerly portions, including Ely, were part of East Anglia; while the district to the north of this, that is the district about Crowland, Thorney and Whittlesmere, were part of mid-Anglia or Mercia.' (fn. 2) The part of the Isle about Wisbech, in turn, retained for many generations a marked individuality of its own. Its social organization during the Middle Ages was closely akin to that of the Norfolk marshland; it was continuously referred to in terms which suggest that it had been originally an East Anglian 'ferthyng', an administrative area which in this district antedated the creation of the hundreds. (fn. 3) In short, the 'two hundreds' of the fenland of Edgar's charter bear evident marks of artificiality, of having been constructed out of more than one original piece. It may also be suspected that they were, in 970, of fairly recent creation-a product of reorganization, of reconstruction. This may have been the work of the Danish army based on Cambridge in the 9th century; or, perhaps more likely, of the West Saxon kings after they won back eastern England from the Danes. (fn. 4)

The liberty of Ely, therefore, though still ancient, may be less ancient than is sometimes supposed. It probably had a precise beginning in the year 970 in King Edgar's grant to the monks of soke over the two hundreds of the fen. This leaves the problem of defining the meaning of that soke which Edgar conceded to the church; and of tracing the steps whereby this soke came to imply an immunity so privileged that it could be called a county palatine. Were the rights of the monks in the Isle such as to make the two hundreds an immunity from the very beginning ? Did they even constitute a court-holding privilege at all ? These are the questions which modern learning suggests we ought to ask about this Anglo-Saxon franchise. (fn. 5)

There is very little early evidence for interpreting Edgar's charters, but some of the records of late 10th-century land-pleas may be important in this connexion. Ealdorman Aethelwine of the East Angles, we are told, when disputes arose about the abbey's title to lands in Witchford, 'came to Ely, and within the cemetery at the north gate of the monastery held a plea with all the hundred present'. (fn. 6) Similarly Wulfstan of Dalham, sheriff of Cambridgeshire, presided over a plea to the north of the monastery, the two hundreds being gathered there. (fn. 7) Again, following a dispute about land at Stonea, 'Ealdorman Aethelwine came to Ely, and Begmund and others were summoned to a plea before the citizens and the hundredors once, and again, and many times'; because they failed to attend, the case was finally settled by the ealdorman in a 'great plea' at Cambridge. (fn. 8) It is not easy to know how to interpret these cases. They may be exceptional; the ealdorman and the sheriff may have been specially called in by the abbot to preside over his hundred courts. On the other hand, it is also possible that, in the beginning, the liberty of Ely was merely a fiscal privilege. The monks enjoyed the right to receive, the emendationes delictorum from the courts of the Isle, (fn. 9) the fines and amercements in the terminology of a later time. They may not at first have had the right to hold the courts of the Isle themselves.

In the course of the 11th century, however, the liberty of Ely certainly became a court-holding franchise. In 1052 Edward the Confessor gave Ely Abbey to Wulfric 'in all things within borough and without, (with) toll and team and infangentheof, fihtwite and fyrdwite, hamsoke and grithbrice, let his man live where he lives and work where he works'; (fn. 10) and it was in very similar terms that the Conqueror confirmed the liberty of Ely, (fn. 11) and later kings throughout the 12th century. (fn. 12) The use of the terms team and infangentheof in all these documents from the Confessor's writ onwards suggests that, wherever the church of Ely had lands, it had its own courts where defendants in cases of theft could vouch to warranty and where hand-having thieves could be dealt with. (fn. 13) That these private courts included the hundred courts of the Isle is implied, even for the time before the Norman Conquest, by two writs of Henry I. One expresses the king's will that the men of the Bishop of Ely should not plead elsewhere than they were accustomed to plead in the days of the Confessor, of the Conqueror and of William Rufus. (fn. 14) The other orders all barons holding in the bishop's hundreds to come to pleas held in the courts of those hundreds at the summons of the bishop's bailiffs, as they had been accustomed to come in Henry's father's time and his brother's. (fn. 15) The significance of these writs is made quite clear by Bishop Hervey's concession in 1128 to Thorney Abbey in its manor of Whittlesey of 'all those customs and secular causes which the church of Ely has in its hundreds of Witchford'; and the elucidation of this concession by the Bishop of Rochester as implying exemption from suit to the bishop's court in Witchford hundred. (fn. 16)

The combined testimony of these documents makes it clear that the church of Ely possessed the right to hold the hundred courts of the Isle of Ely in Henry I's time, in the time of his brother and his father, and in the time of the Confessor. How much farther back this right went there is very little to tell us; nor is it easy to sum up the degree of immunity the church enjoyed in the Isle either before or after 1066. There are, however, two points worth making. First, none of the charters of the church of Ely, from King Edgar's down to that of Henry II, suggests that there was anything special or distinctive about the liberty of Ely in the Isle. The abbey's liberty extended over all the church's men and all its lands; the liberty in the Isle was merely a parcel of a liberty which the church of Ely had everywhere it had property. Presumably, therefore, at this early time the franchises of the abbots and bishops in the Isle were analogous to those which the church had later outside the Isle. These included the right to hold certain private hundred courts in Norfolk and Suffolk; to hold the view of frankpledge in all its manors and hundreds; to plead in its own courts all pleas the sheriff could plead in the public courts; to have the return of all writs; to arrest and imprison all criminals, bring them to trial and execute sentence upon them; to collect and retain for the use of the church all fines and amercements in whatever court they were imposed. (fn. 17) In short, the liberty of Ely everywhere consisted in a comprehensive immunity against the intervention of the sheriff and his subordinates within its lands and hundreds. It must have been a franchise which, in the Isle and elsewhere, excluded most outside interference so long as the control of local administration was concentrated mainly in the sheriff's hands.

During the 12th century, however, the sheriff's activities in local administration were being supplemented and in part superseded by those of other agencies, and in particular by those of the king's itinerant justices before whom, in 1166, no man was to fail to appear on account of any liberty. In face of these encroachments, the liberty of Ely outside the Isle became less of an immunity than in earlier times. The bishop and the prior made good a claim to receive the fines and amercements imposed on their men, lands, and hundreds by royal justices; (fn. 18) but this fiscal privilege conferred no exemption from the jurisdiction of the king's courts or from the performance of suit to them. (fn. 19) Only the Isle of Ely came to enjoy such an immunity that the king's courts exercised no jurisdiction within its boundaries. At what precise date this franchise was established is less clear. Two charters of King Stephen, granting Becontree hundred (Essex) to the nuns of Barking, may have some relevance to this question. (fn. 20) The nuns were to hold the hundred 'as freely as the church of St. Edmund and the church of St. Etheldreda of Ely hold their hundreds'. But in both a qualification was attached: in one 'salvis aliis consuetudinibus meis regalibus'; in the other 'salvis tantum placitis corone mee que per justiciam meam debent placitari'. If these are genuine documents, and if the qualification also applied to the privilege of the church of Ely in the two hundreds of the Isle, the later exemption of that district from the jurisdiction of the king's justices may not apply in the first half of the 12th century. There is some support for this possibility in the tale of a miracle performed by St. Etheldreda in the reign of Henry I. She released from prison a certain Bricstan who, being accused of stealing the king's money, had been condemned 'Radulfo Basset sedente pro tribunali, congregatis eciam provincialibus universis apud Huntedoniam ut mos est in Anglia'. The important point is that Bricstan was a man of Chatteris in the Isle; yet he was taken before the justice sent out into Huntingdonshire from the king's curia. (fn. 21)

On the other hand, when the priory chronicle took final shape in the later 12th century, it was claimed that the church had the right to entertain all pleas of the crown in the Isle and to exclude all royal ministers from the Isle. (fn. 22) In 1189, finally, Richard I's charter for the first time drew a clear distinction between the liberty of Ely in the Isle and elsewhere. (fn. 23) The Isle was free and quit of all royal exaction; outside the Isle the church had its sake and its soke, toll and team and infangentheof and so on. By the early 13th century, the exemption of the Isle from the jurisdiction of the royal courts was firmly enough established to have given rise to institutions within it to administer higher justice. At least as early as 1220 there was a curia Elyensis capable of hearing a plea under a writ of mort d'ancestor. (fn. 24) By 1251 a number of tenures had been created in the vill of Ely specifically for the defence and exercise of this franchise. William the son of Elyas had to go with the lord's steward and knights to Cambridge on the coming of the king's justices there, to demand the church's liberties. Nicholas his brother and others held land for rent and services and for performing the office of coroner; while John de Marisco had 6 acres for which he paid nothing, but he too had to be a coroner and go to meet the justices. (fn. 25) By this date, the foundations of the medieval liberty of Ely in the Isle were fully laid.

Before discussing this medieval liberty, however, one further preliminary matter demands attention. One eventual result of the establishment of a bishopric at Ely in 1109 was that, in the Isle and elsewhere, the bishop and the cathedral priory became landowners more or less independent of one another. (fn. 26) This had consequences also for the liberty. There is nothing in Bishop Hervey's charter of endowment for the monks to show that he gave them any share in the franchises of the Isle; (fn. 27) while Niel's well-known charter, purporting to come from about the year 1135 and granting to the priory judicial privileges similar to the bishop's, has been regarded as of dubious authenticity. (fn. 28) On the other hand, there is a later charter of Niel's which does concede to the monks the right to hold pleas arising in their own lands; (fn. 29) and this concession was confirmed by William Longchamp towards the end of the 12th century. (fn. 30) This agreement in principle, however, left a wide margin for disagreement about details. On at least three occasions during the 13th century the precise extent of the conventual liberty was submitted to the verdict of sworn inquests; (fn. 31) and there were still points at issue between the bishop and the monks which had to be put to arbitration in 1417. (fn. 32)

The final result of all this discussion, in general terms, can be summed up fairly concisely. The prior and convent had their courts and their leets in all their manors. They received the profits of justice done upon all their men, both in their own and in the bishop's courts. They enjoyed in their own manors administrative powers of arrest, attachment and execution of sentence. They had a prison at Ely separate from the bishop's prison. In short, they had all the lesser liberties the bishop had. The higher liberties, on the other hand- the right to hold hundred courts in the Isle and plead placita vicecomitalia; jurisdiction over pleas of the crown; the execution and return of royal writs- these were reserved to the bishop. Thus, in treating of the lesser franchises of the liberty, material can be drawn indifferently from conventual and episcopal records; but the conventual records contain little about those highest franchises which made the liberty of Ely very nearly a palatinate.