You are in [Themes] [Elizabethan Hungerford] [The Case of the Missing Charters]
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In many ways the Elizabethan age was a turning point in Hungerford's history. The townspeople came very close indeed to losing their traditional privileges, such as the free fishery, and profits of markets and fairs. This was because they could not produce a charter to prove that Hungerford was a Borough, and as such able to act on its own behalf in a Court of Law and to hold the full range of Borough rights.
We have to go back to the middle ages to understand why things became so difficult in the late Elizabethan period. Most authorities agree that Hungerford was part of the Crown's lands in 1086 and was included within the royal manor of Kintbury. This was important, because as tenants of ancient demesne, Hungerford's people enjoyed certain liberties, privileges and duties. They had to furnish provisions for the king's household, but they did not have to contribute towards expenses of the Knights of the Shire nor pay any tolls (See E Hallam, The Domesday Book through Nine Centuries, esp Chap 4). Another privilege enjoyed by medieval townspeople was burgage tenure. This was a kind of economic incentive offered by lords of the manor to attract new settlers and promote trade. Burgage plots were laid out on either side of the High Street, and could be sold or exchanged freely, unlike normal manorial holdings. Other privileges were the subject of specific grants. Simon de Montfort was said to have given the free inhabitants herbage and pannage in his wood of Bauteley, but this charter, if it did exist, has been lost. More importantly, John of Gaunt granted the townsmen the right of fishing in the manorial waters, mill pounds excepted.
With these various liberties, medieval Hungerford was part-way towards becoming a full Borough, but it never seems to have enjoyed the full privileges - the right to act as a corporation, hold property and issue bye laws. However, rights over fishing and grazing seem to have hardened into a tradition which extended as far as borough status. It was this ambiguity, of 'tradition' versus the 'written record', which was to lead to serious conflicts, involving Crown, gentry and town (VCH Berks, Vol 4, p 185-6, and P Walne, The Missing Charter of Hungerford, Transactions of Newbury and District Field Club 10(2) 1954, p44-49).
The story of the missing charter, and indeed whether such a charter ever existed, has been explored by a number of historians. W. H. Summers' The Story of Hungerford reports the story at length and it is also covered in the Victoria County History and elsewhere. The whole business was long and complex, and made all the more confusing by minor squabbles and grudges. What may be the most helpful here is to summarise the various 'landmarks' and then to comment more generally on what the whole business can tell us about local politics and society at the time.
In 1565 John Youll (or Yewell) tenant of the Queen's Mill in Hungerford had bought a mill stone at Southampton and, on being asked to pay toll for it, strenuously denied this saving he dwelt in Hungerford which is free by Charter. Back home, he asked to see the Charter, and documents were produced from the Town Chest which must have looked important, but, unfortunately, no-one could read them. So the Constable, John Lovelack, took them away to have them translated.
In 1568-9 the inhabitants of Hungerford took a case to the Duchy Court against Brian Gunter (perhaps lessee of Hopgrass at that time), concerning rights of pasture in Freeman's Marsh. This legal action was rather ill-judged - perhaps the townsmen should have made sure of their ground first - because it raised the whole question of their status. Only a Borough could act as a corporation and bring a legal action such as this. The effect of acting in this way brought the whole question of the town's status to the notice of the Duchy Court.
Pandora's box had been opened. In January 1573, the Surveyor of the Duchy lands held a special court to make enquiries about certain manor customs, particularly fishing rights. The main objective was simple: the Crown needed every source of income and would do its utmost to ensure that rights and revenues were not diverted elsewhere. It was of vital importance for the townspeople to prove that they were entitled to the fishery, but the necessary charters were missing.
Had they been stolen? Some people thought so: they remembered that John Lovelack had taken some documents away after the case against Brian Gunter in 1568, and it was alleged that, along with William Butler, he had fraudulently disposed of them. An official complaint was filed in the Duchy Court in London. As a result of this, a Special Commission was ordered to examine witnesses and take evidence from both sides so that a judgment could be made.
This Commission sat in Hungerford between June and September 1573. Much of the proceedings seemed to concern the contents of the Town Chest, in which all the town's legal documents were stored.
Norman Hidden states: "In evidence given by Edward by Edward Brouker, vicar of Hungerford, in 1573 in the "Missing Charters Case", he suggested that at that date the town hall had if not a muniments room, at least a muniments chest, stating that "the writings, deeds, charters and miniments touching and concerning the said lands and tenements or otherwise of the borough hath been of long time put into one little chest and that same little chest was always placed in one great chest which always stood in the town hall of Hungerford, and that the great chest had one lock and one key to the same and that the little chest had two locks and as he supposeth but one key, and that the custody of all the keys hath always been accustomed to be delivered to one of the most ancient men of the town that hath been Constable, to keep for the year following the Hocktide Court there holden, and that to the town hall there was one key and one lock, the custody whereof always remaineth with one appointed to keep the clock and ring the bell".
John Yowle in the same case gives a little further information. The small chest or coffer was "safe and sound with iron" and if the chest was to be opened it should be done in the presence of the Constable with at least three others."
It seems clear that Lovelack had taken the chest to his house to examine the contents privately, but no-one seemed sure of what documents should have been in there in the first place. The conflicting testimonies, hearsay and malicious backbiting must have been extremely tedious for the Commissioners. The final decision was that there was no proof any charters had existed, so no one could be charged with stealing them. There seemed little doubt that some documents had been removed, perhaps in connection with some property, but this was not the concern of the Court. The main concern was to establish the status of the town. It seemed abundantly clear that it was not a Borough, nor had it ever been one. If a charter of incorporation had been granted by John of Gaunt, there would have been clear evidence of it elsewhere.
However, this was not the end of the story by many means. Once it was evident that Hungerford was not a corporation, in any shape or form, other liberties and privileges looked less secure. In 1574 the Constable Thomas Seymour, Nicholas Passion and John Fawler on behalf of the inhabitants complained that John Hall of Kintbury claimed the bailiwick of the town and intended to infringe their ancient rights and privileges. This time they appealed directly to the Earl of Pembroke at Wilton, with whom the Queen was staying. She graciously ordered that the inhabitants should have their ancient rights, but did not specify what they were! (VCH Berks, Vol 4, p 186).
Her Highness commanded me to signify unto her Chancellor and Council of the Court of the Duchy of Lancaster, that the said inhabitants should hereafter have use and enjoy without interruption all such liberties and profits and benefits as heretofore, time out of mind, and remembrance of man, they had used and enjoyed: yielding, paying and doing such rents, duties and services as had always been accustomed. Except they knew some special good cause and matter to the contrary, where if any such were her Highness' pleasure, was to be advertised by her said Chancellor. (Copy in BRO)
(Derek Patience emailed the Virtual Museum in Mar 2011 saying: "You may be interested to know that I have been able to trace my ancestry back directly to Nicholas Passion, who was born in Westbury in Wiltshire in 1501, and came to Hungerford in the mid 1550s, and was involved in the 'Missing Charters' case in 1573". He kindly offered excellent transcriptions of Duchy of Lancaster Rentals and Surveys).
Shortly afterwards, the townspeople placed on record their ancient customs. If one lesson had been learnt, it was that a clear statement would help prevent further encroachment on their liberties. Accordingly, in 1583 The Libertie of the Towne of Hungerforde detailed Certayne ancient customs perpeptuallie remayning. This set out, in English, election of the jury at the Hocktide court; the officers of constable, coroner, etc; the payments of commoners' pennies; and all the other ancient ceremonies connected with Hocktide (Copy in BRO).
However, it took a long fight before the fishing rights were firmly vested with the townsmen. In 1591, it was stated that the fishery of the rivers of Hungerford belonged to the royalty of the said manor (BRO DL42/117). The Kennet was described as a:
"fayre river which yeldeth store of fishe and especiallie trowtes and crevices (crayfish) which by some restraynte would yeild Her Majesty some proffyt where nowe it yeldeth none, in that the inhabitants prentent title therunto by usage .... the troute of the same river is accompted by the beste troute within this land".
In 1592 John Fawler, then Constable, sued two neighbouring lords of the manor (Denford and Avington) for fishing in the waters opposite to their respective manors (this seems a reasonable enough occupation). The case ran and ran - in 1610 it was found that the townsmen held the right of fishing three days a week by custom and by right of a charter which witnesses had seen and heard read but which had been purloined. Eventually, and of course by this time we are outside the reign of Elizabeth, the fishing rights of the Crown were conveyed to the feoffees of the town (VCH Berks Vol 4, p 186; Walne op cit).
Finally, by a legal agreement in 1617, the Borough of Hungerford was transferred to the Constable and thirteen trustees upon trust to observe certain articles. These articles laid down the guide lines which ensured the smooth running of the Borough for the good and mutual benefit of its inhabitants. The lord of the manor became a corporate body and, although denied the status of a legally incorporated Borough, Hungerford became a self-governing body with associated privileges and powers. They could issue bye laws, but they were by mutual agreement of all the inhabitants and not imposed by a higher authority. Three hundred and fifty years later, the articles are still followed today.
Altogether, a remarkable story.
(From Elizabethan Hungerford, Julie Shuttleworth et al, 1995)
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The Canal Wharf, 2011