|Subject:||Customs of Fordwich|
|Original source:||British Library, Cotton MS., Faustina A.i, ff.85-89|
|Transcription in:||G.J. Turner and H.E. Salter, eds., The Register of St. Augustine's Abbey, Canterbury. London: British Academy Records of Social and Economic History, 1915, 145-53.|
|Date:||late 13th century?|
These are the customs which the mayor and community of Fordwich have enjoyed since ancient times and continue to enjoy.
First, they claim that within that liberty no hundred court [session] shall be held between the Nativity of the Blessed Mary [8 September] and the Monday following the festival of St. Andrew the Apostle [30 November]. On which day they shall present before the steward of the Abbot of St. Augustine, Canterbury, or his deputy all the customs written below together with other franchises embodied in its charter. That day shall be for a view of frankpledge, but no pleas of land are to be heard on that day.
No hundred court is held after summons has been issued to the barons, regarding service to the king, nor while some of their liberty should happen to be [absent] in that service. Nor shall they hold any hundred court is they are summoned to the king's parliament or to the Shepway court. No hundred court shall be held except once every three weeks, and then with reasonable advance warning [to parties], viz. 3 days, but 15 days advance summons for those who are party to a plea of land. And no hundred court shall be held on any day other than a Monday.
They claim that no hundred court shall be held, nor shall judgement be pronounced in any plea other than in the hundred court, without the mayor and 12 jurats of the town being present. That no freeman of the liberty is to be amerced at any hundred court held in that town because of his absence, so long as the mayor and 12 jurats shall be involved in rendering judgement, except in the case of the hundred held, as mentioned, on the Monday following the festival of St. Andrew the Apostle – on which day anyone defaulting [in appearance] may be amerced up to 6d. And that if anyone of the liberty shall be put on any inquisition [jury] and defaults [in appearance], so that he is subject to amercement, that amercement is to be assessed by his peers and levied in the same way.
They claim that in all crown pleas arising within the liberty in which an outsider has brought a suit against any freeman regarding lands or tenements that are within the liberty, that freeman shall be allowed a certain number of delays, viz. 3 summonses, 3 essoins, and 3 defaults [in appearance]. And in pleas of debt, trespass, contracts and other civil pleas between freeman and freeman they may have as many delays as in the pleas of land. But if an outsider has brought a suit against any freeman in a plea of debt, trespass, contract or any other civil plea, the freeman shall defend from day to day, and hour to hour.
They claim that if a man wishes to alienate lands or tenements within the liberty in which his wife has rights, then the wife is to appear in person before the mayor and jurats of the town and be examined in their presence (as is the practice in the king's court). And then, immediately after her declaration, according to the way and custom of the town, her wishes in that regard are to be enrolled and may serve in perpetuity as a record of the legal decision between the parties.
They claim that every man and woman of the liberty may bequeath all lands and tenements they have acquired within the liberty and that they may make their testaments concerning those bequests in the presence of the mayor, bailiff, and jurats – if they are able to be there. If they cannot find the time, then before at least 3 jurats of the town who can if necessary duly prove the last will of the deceased at another time – within a year and a day after the death of the deceased – before the mayor, bailiff, and community. If he or they to whom the lands or tenements are thus bequeathed is or are unwilling to prove the testament before the mayor, bailiff, and community within a year and a day, the property shall remain forever with whomever has the right to them by way of heredity, as if they had not been bequeathed. If there are those who are suddenly overtaken by illness, so that they are unable to draw up testaments regarding such acquisitions, then they may declare their wishes orally before the mayor or at least 2 jurats and they shall receive approval and be fulfilled as if they were legacies made in a testament.
Moreover, if there are those of the liberty who die intestate, their goods and possessions are to come into the hands of the mayor and jurats, for disposal on behalf of the deceased as they consider it most expedient for the benefit of the souls of the deceased, without the intervention in such matters on any grounds by any ordinary of the Church.
They claim that if any man or woman wishes to sell his or her lands and tenements in the liberty, according to the custom of the town he or she should first offer them to the closest blood relative. If he or she should sell them to anyone else of the liberty or an outsider, before thus offering them to the nearest kin, and that blood relative, in the presence of the mayor and jurats, shows his money to the seller in an amount equal to what the latter is able to get from the other, the seller shall discount the blood relative 12d. in the pound. If that close kin is known to be in distant parts at the time of the sale and purchase of those lands and tenements, whenever he returns home (if within a year and a day) he may come before the mayor and jurats and claim the same terms of sale according to the custom of the liberty. If that is the case, because of his absence for so long a time, he shall have a respite of 40 days in paying the price in the original terms of sale made between the other parties. If he who had obtained possession refuses to accept the relative's claim, then the latter shall immediately enter into the lands or tenements by view of the mayor and jurats; on condition, however, that he satisfy the purchaser for the whole price that he previously paid for the lands and tenements, within that period or at the end of the 40 days at the latest.
They claim that, regarding lands and tenements within the liberty that are put up for sale, freemen of the town should, if they wish, have the first chance to acquire them, before outsiders.
They claim that no-one may despoil, of the revenues issuing therefrom, the lands or tenements within the liberty belonging to children of the town. All minors who are underage shall be nurtured, after the death of their ancestors, by the mayor of the town and not by any others who contest for the right. According to the custom of the town, sufficient surety is to be provided for answering to the mayor, when they [i.e. the heirs] reach their majority, for their possessions and other things that rightfully belong to them, and for providing for their material needs as is necessary and required in similar cases.
They claim that if a thief who has committed a felony outside the liberty is prosecuted for that felony within the liberty, those who wish to prosecute him for the felony may lay an accusation before the mayor, bailiff, and jurats and thus proceed against the felon to the point of judgement until he is acquitted or convicted according to the custom of the town. After his conviction, the felon shall forfeit his possessions (if he has any) to the king, who is lord of the town.
They claim that if a thief is arrested for any felony committed outside the liberty and those who are escorting the shackled thief bring him into the liberty without permission from the mayor, bailiff, and jurats of the town, then the bailiff, together with mayor and jurats, is to take the thief into custody and hold him in the king's prison within the liberty, until those who thus brought the thief have paid a fine of 10s. for "le vorueng", of which half [goes] to the abbot and the other half to the community of the town. After they have paid the fine, the bailiff, together with the mayor and jurats, is to escort the thief to the boundary of the liberty and there hand him over to those who previously had custody of him. Similarly, if someone has brought a shackled felon to the boundary of the liberty, wishes to enter the liberty, and requests permission from the mayor, bailiff, and jurats, then the mayor, bailiff, and jurats may lead the felon, unshackled, through the interior of the liberty to the [far] boundary of the liberty and there without delay hand him back to those men who previously had custody.
They claim that if any informer who is an outsider accuses any man from the liberty of any felony – regardless of whether the felony was committed inside or outside the liberty – the informer is to enter the liberty with all the equipment allowed to an informer. When he enters the town he is to be led to the river called the Stour and is to stand therein, at a point where the water comes up to his navel, with his equipment in the manner of an informer, ready to uphold his accusation [by combat]. And the freeman who has been accused, dressed in a garment called a "scorrie" and with an instrument called an "ore" 3 yards long, is to come along the river in a two-bench boat until he is facing the informer. That boat is to be tied up to the quay with a rope and he shall fight with the informer until the contest between them is decided.
They claim that if any misfortune should happen within the liberty so that someone is feloniously killed or falls from a house or a tree, or such a thing suddenly occurs by any other similar kind of misfortune, the king's coroner shall not because of that enter the liberty but, instead of the coroner, the mayor, bailiff, and jurats shall have view of the felony or misfortune; and the forfeited possessions [of the felon] and deodands, if there are any, are forfeit to the king.
They claim that if any freeman or outsider is arrested or indicted for a felony outside or inside the liberty and flees to a church within the liberty, the mayor and community may not by any means take him into custody so long as he stays inside that church. Should he succeed in escaping from the church within a period of 40 days, [neither] the mayor nor the community are liable to pay any compensation for that escape. If at the end of the 40 days, or earlier, he wishes to abjure the liberty, the mayor, bailiff, and jurats are to escort the felon to the boundary of the town liberty and there hear his abjuration according to the custom of the liberty.
They claim that if any man or woman of the liberty buys stolen goods, either inside or outside the liberty, and someone lays a claim to the item as his own property, but the purchaser can legitimately prove with the third hand that the item was bought in good faith and without complicity, then he who has laid claim to the item may have it back, if he wishes, by satisfying the purchaser for the same amount he had previously paid for the item; otherwise the buyer may keep the item as his own. If in such a case the man or woman is found on a second occasion to have bought any item thus and has been prosecuted as aforesaid, he or she is to prove with the sixth hand that the item was bought in good faith under all the aforesaid circumstances, and thus shall enjoy his franchise. If on a third occasion he is challenged on such a purchase, then he is to prove with the 12th hand that the item was bought in good faith; and if he is able to prove it thus, then let it be just as it is said above. Otherwise, if he is not able to prove it by that method, then judgement shall be given according to the law of the land.
They claim that the king shall not have suit in any case within the liberty.
They claim that if any waif or stray should come into the liberty, he who takes custody of it is to have an announcement made of the fact in the church within the liberty on three [successive] Sundays, in case someone wishes to lay claim to it. If after the announcement is made no-one wishes to put in a claim, then it is to remain in his custody for a year and a day; and after that year and a day one more announcement is to be made in the church, as indicated. If someone then lays claim to it and proves it with the third hand in front of the mayor and jurats, he who had custody of it for that period is to be fully reimbursed for all expenses he incurred during the entire period, after which he is to hand it over to the claimant without delay. But if no-one wishes to lay claim after the announcement is made, then it is to be sold and the expenses he has incurred up to then are to be repaid, and of whatever remains beyond the expenses one half shall go to the king and the other half to the community of the town.
They claim that ten days after they have elected the mayor of the town, the mayor, bailiff, and those jurats who are available are to examine all measures of length and weight within the town and, if they find some measures that are defective in length or weight, those [who own the measures] that are defective are to be amerced according to the custom of the town, of which half goes to the king and the other half to the community of the town.
They claim that any ale-wife who wishes to brew within the liberty should be amerced no more than 2d. for an entire year, which amercement is to be paid to the king.
They claim [that there is] no "kerbrech" within the liberty.
They claim that if some ale-wife brews unwholesome ale within the liberty or [sells it] at a price lower than it ought to be and is brought before the mayor, bailiff, and jurats on this charge, the ale-wife is to be amerced up to 11d., of which half goes to the king and the other half to the community of the town. And if she should be found guilty of this on a second occasion, she is to be amerced up to 22d., of which half to the king and the other half to the community. And if she should be found guilty a third time she is to renounce her role as an ale-wife for a year and a day and even then may not return to it without permission from the mayor, bailiff, and jurats.
They claim that all the following are freemen of the town, viz.: those who marry any freeman or freewoman of the town; whoever is born within the liberty; and also, they who purchase the liberty.
They claim that if someone should wish to share in their liberty, he may reside for a year and a day and, if the mayor and community are satisfied that he is honest and well-behaved and if he wishes to remain longer among them in the liberty, he may pay 11d. to have the liberty, of which half goes to the king and the other half to the community of the town.
They claim all the above free customs along with others which they cannot at the moment bring to mind, which we and our predecessors have from time immemorial up to the present day used and enjoyed, together with other franchises more fully set out in our charters, so that we on behalf of ourselves and our heirs in future times without any kind of challenge in regard to the same may uphold them and henceforth forever be capable of governing [ourselves].
Concerning the rights of the abbot there regarding anyone arriving with a cargo of fish who seeks permission to dock at the port of Fordwich: since the abbot is lord of both the town and the port, it is his custom and right to make the first purchase if he wishes.
They claim that the mayor and jurats should be at the service of, and look after, merchants and everyone else coming to the town, to the best of their ability. So that if the lord's bailiff might wish to take from them or from their merchandize excessive tolls or perhaps seeks to oppress them in some other way, the mayor and jurats shall go to the bailiff and ask him that he not commit this kind of extortion to the detriment of the king's town. If after being requested he is unwilling to desist, and those merchants or others coming afterwards want justice against the bailiff in the king's court or before the warden of the Cinque Ports, the community ought to provide them with assistance and advice and, when the time comes, bear witness to the injury the bailiff has caused them. Even if the merchants coming after cannot or do not want to do so, the mayor and jurats ought to take counsel together and have written down all unjust exactions of this type and all wrongs that they see him [commit]. And if that bailiff is determined to commit other abuses against the liberty and the community, those of his wrongs which they can verify they are to confront him with and take an adversarial stance against the misbehaving outsider. Better, however, for the mayor and bailiff to get on well together because each, through friendly relations and reciprocal communication, could then undertake his duties in a better, more informed, and easier fashion. To accomplish that purpose, so that it is clearly understood what the bailiff ought rightfully to perform, his official duties are as follows: he ought to collect, in person or by a deputy assigned by him, the tolls due to the Abbot of St. Augustine, Canterbury, as specified in his list of tolls, since the king has granted him his royal prerogative within the liberty insofar as he holds the town of the king, and not otherwise. It is well-known that he ought not to collect tolls from certain persons, viz.: from any of the freemen of the Cinque Ports or their members; from those men of the liberty of the city of Canterbury who are at scot and lot within the city; from men of London who are at scot and lot within the walls of their city; from men of the Archbishop of Canterbury who reside on the archbishop's lands; from men of the hundred of Middleton who reside in the hundred; from men of the Abbot of Battle; from men of the Abbot of St. Albans. Any other merchants whatsoever, no matter when or how often they come into the liberty, ought to be subject to paying tolls there depending on the quantity of their merchandize, as set out in the bailiff's list of tolls. If any bailiff or anyone else infringes this against the franchise, our warden of the Cinque Ports will whenever necessary be on the lookout for injuries committed against the community and the liberty, under penalty of £10 to his profit.
They claim that whenever and as often as the town of Fordwich is without a bailiff of the Abbot of the monastery of St. Augustine, Canterbury (who has rule over the town under the king), he may send one of his own men – whomever he wishes to select to occupy the ballivalty – with letters patent under the communal seal of the monastery and other letters from the abbot himself requiring the acquiescence of the mayor and community. Which letters having been read out before the mayor and community, the bailiff ought at the direction of the mayor to take his oath [of office] before the mayor, jurats, and the whole community, in the following fashion:
And then he is to receive the white rod [of office] from the abbot's steward, if he is present, and if not, from the mayor. It is said that the community may appoint a bailiff from among themselves and that they are to obey him in all matters that fall under his office and ballivalty. Otherwise the ballivalty is not to be occupied until what is stated above has been fully performed. The bailiff has the power to receive all complaints that arise within the town in all matters of law, whether involving freemen or outsiders; and, depending on the nature of the lawsuit, may make attachments or summonses, grant bail, or do whatever else is appropriate to the cases.
If however the plaintiff or the defendant should be an outsider, or if both parties are outsiders, the plea ought to be held according to its type before the mayor, bailiff, and jurats of the town, from day to day and hour to hour, because all outsiders ought to have justice in the town within three days in all pleas, except for pleas of land and pleas of the crown.
It is also permitted to both plaintiff or defendant to appoint an attorney [with power] to win or lose before the mayor and bailiff, or before the mayor without the bailiff, in all pleas except for pleas of land – for attornies in such cases should not be recognized [by the court] except in full hundred session. However, those who are outsiders ought to receive justice and answer to the law whether before the attorney of the mayor and bailiff or in their presence. The same ought to hold true when a freeman is involved in a suit with outsider, regardless of whether that outsider is the plaintiff or defendant, because a freeman going up against another freeman does not have to plead in the absence of the mayor or bailiff, and for this particular reason it is desirable to have a bailiff who resides within the liberty. The bailiff or his deputy, when they receive such a complaint, is obliged to inform the mayor or his deputy, so that he may be present on a day specified to preside over the plea, together his jurats who ought to come, as mentioned.
It is the duty of the bailiff or his sergeant in these types of pleas to make reasonable distraint on the defendant to oblige him to answer. So that if the lawsuit should be one involving a large debt then a large distraint may be taken; if on the other hand it is a lesser matter then the amount of the distraint taken is to be proportionate to the offence committed – [for example?] if a mariner should bring an action against his [ship]master for unjust detinue of 20s. then the master may be distrained by his ship's sail, or by its cable or anchors, so long as other sufficient distraints can be found in the same ship. The bailiff should receive 4d. for taking this kind of distraint, on water or on land, and amercements from those who are convicted, which are to be paid to the abbot. On the other hand, it is the custom for him not to take anything for distraints made on land, other than the amercements from those convicted, since the abbot ought to look after the interests of the plaintiff in regard to those amercements.
After the establishment of a Saxon kingdom in Kent, the old Roman town of Canterbury was made its capital, and it subsequently became the base for a re-Christianization effort; but in both cases its role during the early and middle Saxon periods was largely administrative, rather than as a centre of commerce. The Kentish kings founded a group of ports/market centres to facilitate the cross-Channel trade with France in luxury items, and the building of Canterbury cathedral and St. Augustine's Abbey likewise required the import of high-quality building materials, from France and the Isle of Wight. Fordwich was the most prominent of these deliberately founded centres, serving as Canterbury's outport. Another was Sandwich, also located on the same estuary, but at the coast.
To the northeast of Canterbury, beyond the abbey and the ancient church of St. Martin, was a wide stretch of gravel that terminated at the highest navigeable point on a broad estuarine channel, predecessor to the River Stour. It was at that point, where there was also a ford across the channel, that a wik was founded – probably by the king – on the southern side of the channel and a quay built, as a point for landing goods and probably for selling them. On the far side of the channel, a royal residence probably offered fortified protection in case of need. Commercial activity at this Fordewicum is evidenced from the seventh century, although the first mention of the place by name was in 675. In the next century we hear of the king exempting monasteries from the shipping tolls that were collected, on his behalf, at Fordwich.
Fordwich appears to have been under the jurisdiction of Canterbury: the king and (later) the earl shared jurisdiction, while the cathedral itself had some jurisdiction there – its own quay, with adjacent property, later the subject of disputes with the abbey. The abbey also had landed interests in Fordwich and expanded these, acquiring from Edward the Confessor in 1055 all his lands and associated jurisdiction in the town. A new abbot granted this away to the sheriff soon after the Conquest. But control soon returned to the hands of the abbey, as the Conqueror's half-brother Odo, Bishop of Bayeux, granted away the authority that had come to him from the pre-Conquest earl, and as the sheriff restored to the abbey his part of the lordship, perhaps as late as 1111. The situation seems a little confused, but in Domesday Fordwich is referred to as a "small borough" in which most burgage plots (73) were held of the abbey. It remained under the abbey's lordship until the Dissolution. Despite its modest size, it was one of only a handful of boroughs and important enough to have hundred status. However, the narrowing and silting of the Stour contributed to its decline. In fact, it lost in 1880 its borough status, which was only restored in relatively recent times, and its present-day claim to fame is still as England's smallest borough.
The Domesday Monachorum, a survey contemporary with the king's Domesday, but dealing only with the possessions of the Church in Kent, confirms the king's Domesday in showing that the archbishop held 7 burgage plots in Fordwich which had withdrawn their service, but goes on to indicate that this service was naval in character. This has led historians to wonder whether Fordwich was already, at that time, an affiliate of the Cinque Ports (whose special jurisdictional privileges were held through naval service to the king), through association with Sandwich, a full member of the league. We know that Fordwich was a "corporate member" through Sandwich in the thirteenth century. Yet, in the charter Fordwich was granted by Henry II (1184), the privileges obtained were typical of normal boroughs, and had none of the special features associated with the Cinque Ports; furthermore, the charter included the grant of a Merchant Gild, an institution not found in any of the Cinque Ports. It has been argued (K.M.E. Murray, The Constitutional History of the Cinque Ports, 1935) that Fordwich perhaps had been a member of Sandwich ca.1066, but the default of ship service from the archbishop's tenants led to the abbot banning his own tenants from providing the service; as a result of which Fordwich's membership lapsed, to be renewed in the thirteenth century when Fordwich was in contest with the abbey and needed the support that the king's Warden of the Cinque Ports was prepared to give to member towns against their overlords. Whether or not that was the case, Fordwich did become an associate member of the Cinque Ports under its more thriving neighbour Sandwich, became in some regards subordinate to Sandwich, and reshaped its constitution somewhat to be more consistent with that of Sandwich.
Not much survives of the medieval records of Fordwich. Perhaps the most important document is the custumal, which has survived in several variants. With so many rival authorities claiming jurisdictions in the town – the abbey, Canterbury, Sandwich – a record of the town's rights and local laws was an important document. The version above is probably a selection from the full custumal, representing chapters of particular interest or concern to the Abbot of St. Augustines; the use of the third person plural at the beginning of each chapter suggests a scribal modification of the original, although the scribe seems on one occasion (one of the later chapters, laying general claim to franchises) to have lapsed into quoting from the source of the copy, using the first person plural. On the other hand, perhaps there is a connection between this document and the annual declaration of town customs before the abbot's steward in the hundred court.
The register, known as the Black Book, into which the abbot had the chapters copied dates from the late 13th century, a period in which the town was involved in disputes with the abbey over issues related to local jurisdiction and administration. Some of the capitula have an adjacent marginal annotation "to be noted", while others have more detailed annotations indicating jurisdictions the subject of dispute between town and abbot. It is evident from the chapter regarding abuses by the abbot's bailiff that the collection of local tolls was a sore point, and the chapter emphasises (the townsmen's perspective) that the abbot has this right only by grant of the king, possibly a veiled threat. It may be noted that the record of this document in the Black Book is followed by a statement of the abbot's rights within the town.
At least one of the three other known versions also appears to have been drafted for the benefit of the abbey, and dates from the early fifteenth century. The other two copies date from the late fourteenth century and the second half of the fifteenth. The former may also have been a version produced for the abbey, or some other external authority. The latter is the fullest copy, but strongly shows evidence of having modelled or remodelled customs after those of Sandwich.
The custumal reflects some of the local idiosyncracies in applying customary law. The seemingly bizarre chapter concerning trial by combat between an "approver" and the one he accuses, for example. A similar idiosyncracy, mentioned in another version of the custumal, was that condemned felons were to be taken from the abbot's court to the Thiefswell where, their hands bound with a rope going underneath their legs so that their knees were in a bending position, they were thrown (by the accuser) into the well to drown. Or again, any man elected mayor or jurat who persisted in refusing to accept office was to be punished by having his house pulled down, a custom found in at least one other Cinque Port (Dover). The affiliation with the Cinque Ports likely explains some of the peculiarities in terms of exemption from the general judicial system of the realm (e.g. abjurations being related to the liberty rather than the realm, deodands going to the town rather than the king, the exclusion the coroner in investigating suspicious deaths or of ecclesiastical ordinaries in matters of testaments). This affiliation did not lessen Fordwich's subordination to its lord, the abbot of St. Augustine's, but was a stick that could be waved at the abbey in some circumstances.
"the Nativity of the Blessed Mary and the Monday
following the festival of St. Andrew the Apostle"
"service to the king"
"day to day, and hour to hour"
"closest blood relative"
"fight with the informer"
"view of the felony"
"prove with the third/sixth/12th
"waif or stray"
"one half shall go to the king"
"bailiff from outside"
"Cinque Ports or their members"
"when or how often"
"on water or on land"
|Created: August 18, 2001. Last update: November 15, 2002||© Stephen Alsford, 2001-2003|