THE TOWN DEMOCRACY
ACCORDING to a theory which is commonly accepted the English borough
in its first condition, and probably during a considerable part of the
twelfth and thirteenth centuries, did actually realize the ideal of
a true democratic society; the spirit of popular liberty penetrated
the whole community, pervading the council and assembly of the town,
the leet court, the guild merchant, the companies of artizans; and
under the favouring influences of equality and fraternity government
was guided by common consent of the burgesses, by whom elections
were conducted and administration controlled. Elsewhere it is known
that the early communes, however strong their protest against the
tyranny of alien despots, were within their own circle far from
democratic in temper or practice; but it has been believed that in
England, possibly by virtue of her people’s passionate instinct for
liberty, town societies wore a more popular character and expressed
a loftier freedom. If this theory be exact, however, the reign of
the democracy was brief, and the later history of the towns from
the fourteenth century onwards is the tale of a swift decline from
the enjoyment of primitive liberty into impotent subjection to the
rule of a narrow and selfish oligarchy, the usurpers of the people’s
rights.[428] The hypothesis of a constant degradation of municipal
liberty from the thirteenth to the sixteenth centuries becomes invested
with extraordinary interest, since all our judgments of the part that
England has played in the history of free government must be coloured
and determined by the ideas we accept as to the kind of civil freedom
in which her people have really believed, the classes who have held
to that faith, and the means by which they have pursued it. In the
absence of some strong compulsion, forcing men to yield obedience to
a “select” body, we question what outward influences or what inward
apathy could have led the boroughs, at the moment when wealth and
prosperity crowned their vast activity, thus unanimously to betray the
privileges of their constitution and to deny their early faith; for in
view of the whole drift of English history, and remembering how great a
part the men of the towns played at this time in English life, it may
well seem inconceivable that the mental and political emancipation of
the sixteenth century should have been attained by a people who in the
conduct of their own local affairs had already universally abandoned a
noble tradition of ancient rights and idly consented to the tyranny of
a mere plutocracy.
To find an example of the primitive form of municipal institutions,
and how they were at the outset understood by the people, we naturally
turn to the well-known story of Ipswich. On June 29, 1200, “the whole
community of the borough” elected the two bailiffs by whom it was to be
governed, and four coroners, whose business it was to keep the pleas
of the crown and see that the bailiffs treat rich and poor justly;
and on the same day by common counsel of the town it was ordered that
there should be “twelve sworn capital portmen, just as there are in
other boroughs in England, who are to have full power to govern and
uphold the said borough with all its liberties, to render the judgments
of the town, and to ordain and do all things necessary for the
maintenance of its honour.” From this moment “the community” as it were
unclothed itself of power to lay it on the shoulders of the bailiffs
and coroners, who thereupon proceeded to act with all the authority
with which they had been endued. They first appointed four approved
and lawful men of each parish, who in their turn elected the twelve
portmen. This being done, bailiffs, coroners, and portmen met—a little
company of twelve, since bailiffs and coroners had all been appointed
capital portmen too—to make ordinances about the collection of customs
and the police officers by whom their decrees were to be carried out.
In due time the whole community was called together to give their
assent and consent to these ordinances; and they once more assembled
to bestow a portion of their common land on the portmen in return for
their labour in the common service, and to agree that all the laws and
free customs of the town should be entered in a doomsday roll to be
kept by the bailiffs.[429]
Here then we have the simplest form of early government—a council of
twelve “worthy and sufficient men” to assist the mayor or bailiffs in
the administration of the town, controlled by a _referendum_ to the
general body of burghers. The doors of the common house or the church
where the councillors met stood open to all the freemen of the borough
who might attend to hear discussions, even in cases where they were
not allowed to join in them.[430] And in the original idea of the free
borough every public act was legally supposed to require the whole
consent of the community from which theoretically at least all power
was ultimately derived; so that whether a new distribution of the
common fields was made, or soldiers were called out and a settlement
agreed upon as to their payment, or guns bought or hired for the common
house or the church tower; whether an inquiry was ordained about the
“livelihood” of the inhabitants and the taxes to be imposed on them,
or a new law proposed, or new freemen admitted to the city liberties,
or municipal officers elected, it was officially assumed that the
unanimous assent of the whole people had been given in their common
assembly.
The privileges of the common assembly are perhaps best defined in the
customs of Hereford, drawn up in 1383, but which doubtless embody
customs of older times. There we learn that at the great meetings held
at Michaelmas and Easter, to which the whole people were gathered for
view of frankpledge (in other words at the court leet), “the pleas of
the court being finished, the bailiff and steward, on the behalf of
our lord the king and the commonalty, may command that all those which
are not of the liberty should go out of the house and depart from the
court; and then the bailiff and steward may take notice if there are
any secrets or business which may concern the state of the city or
the citizens thereof, and let them proceed therein as they ought to
do.”[431] To these assemblies, according to the custom of Hereford,
the people ought to come, and if there was anyone “which will complain
of any trespasses committed, or any other thing touching the state of
the city or themselves, they ought to speak the truth upon their own
peril, not bringing with them any stranger ... because we do not use
that strangers shall come and implead amongst us and know the secrets
of the court for divers dangers that thereby may ensue.”[432] In case
of necessity the bailiff “by all kinds of rigour” might compel the
discreeter citizens to come to the court and take their due part in its
labours; and in Sandwich we know that if the burgesses summoned by
bell or horn failed to appear, the “rigour” of the mayor might go as
far as the sending of a serjeant to shut up all shops and work-rooms in
the town, and thus compel the burghers’ attention to public instead of
private business.
In the general assembly there was always present the most conspicuous,
if the most unwieldy, symbol of the authority of the people, and
of the supreme power which was theirs, not only by law, but by an
ancient customary right which to the last remained independent of
statute or charter. It is true that the common gathering of the
people—without executive authority, without power to initiate laws,
called together merely to give or refuse assent to the deeds of the
government—would in itself have given the democracy very little
hold on the town magistrates in the exercise of their office. The
theory of the constitution, however, was that those who were mainly
charged with making and administering the laws should be yearly chosen
for their work by the people whom they were called to govern. The
mayor who stood at the head of the administration was, according to
the common formula which pointed back to the fundamental right and
first intention of the institution, elected “by assent and consent
of the whole community of the town,” and “in the place from of old
accustomed;”[433] and as each community was allowed to decide for
itself how this “assent and consent” should be ascertained, there were
perhaps towns where the practice followed the theory. Thus in Sandwich
the unanimous consent of the whole town was given by public vote in
a general assembly. On the first Monday in December at one o’clock of
the day, the town serjeant sounded the common horn, and made his cry
at the fourteen accustomed places, “Every man of twelve years or more
go to St. Clement’s Church; there our commonalty hath need. Haste,
haste!”; and when the people had gathered in the church, having first
ordered the mayor to withdraw, they named him and three other natives
of the town to be “put in election,” one of whom was then appointed by
the whole assembly voting after their degree, jurats first and freemen
afterwards.[434]
This practice was no doubt rare, but the theory that the mayor was
the elected servant of the whole people, enshrined in the town book
of customs, in ordinance and statute, never died out of the common
speech and belief of the people. “We must obey our chief bailiff as
one presenting the person of the king,” the burghers of Hereford
say deferentially, and proceed to make him swear on assuming office
“that he shall do all things belonging to his office by the counsel
of his faithful citizens”; and to order that if he refused to answer
complaints he should be proceeded against as for perjury; that if
his accounts were not faithfully rendered all his goods should be
seized; and that if “he shall be dishonest or proclaimed or suspected
or convicted of any crime, he shall forthwith be put out of his
place.”[435] And as the mayor was the people’s servant, so in theory
at least his election was supposed to be of their pure free-will. “From
this time forth,” say the inhabitants of Wycombe in 1505, “no burgess
nor foreigner make no labour, nor desire no man to speak before the day
of election of the mayor for no singular desire, but every man to show
their voices at their own mind, without trouble or unreasonable doing
there in the time of their election.”[436]
The chosen head of the people was thus to the popular sentiment the
type and symbol of their freedom, and a Bristol chronicler tells us
how, the mayor being accused by an enemy of the king’s household, the
townspeople followed after him as he was led to prison, lamenting and
weeping “as sons for their natural father.”[437] He was assisted by
councillors also chosen to uphold the liberties of the borough; and the
frequent use of elected juries in public business served still further
to maintain the ancient tradition of rights vested in the people. In
the manor courts of the country the jury made its way slowly and with
difficulty, but in the town courts it seems to have taken complete hold
very early, and to have been worked constantly and elaborately.[438]
The system was applied to all manner of local business. Not only did
the Leet jury in some towns, as in Nottingham and Andover, occupy
itself with a vast range of affairs connected with government and
legislation; but it was a universal custom to appoint representatives
of the community for any special purpose. Everywhere we have glimpses
of bodies of jurors chosen to elect officers, to assess taxes, to make
statements as to a broken bridge, to hold discussions about tallages or
about disputed boundaries[439]—transient apparitions supposed, when
their work is done, to dissolve into their constituent householders,
and which appear and vanish again as the centuries pass, till the
burghers, recognizing in them an admirable machinery for larger uses,
fix or seek to fix them into permanent existence as town councils. To a
people inheriting the high and inalienable prerogatives of a chartered
borough, with the right of free meeting and free speech in their
general assembly, presided over by a “natural father” of their own
choosing, the jury system might seem to afford the final safeguard of
liberty.
Such was the ideal of a self-governing community in early times—an
ideal to which in later ages men looked back wistfully, as summing up
the faith and practice of a golden age. Whenever the mayor was summoned
to take his oath to the people on “the Black Book” of the city,
instead of the Gospels;[440] whenever according to custom the ancient
ordinances of the town were yearly read before the people gathered
together, the ideal of a noble liberty was proclaimed anew. The boast
that the borough’s rights were founded and grounded upon franchises,
liberties, and free ancient customs, and not upon common law,[441]
remained a living faith; and a tradition of independence sanctioned and
enjoined by authority was handed down from generation to generation, by
men who believed themselves born into a birthright of freedom for which
they need plead neither the law of nature nor the law of Rome,[442]
since it was the honest handicraft of English kings and English
lawyers, and paid for in hard cash out of their own grandfathers’
pockets.
But behind law and charter there lay always the great appeal to
immemorial custom. In that dim time of which no memory is, a power
yet more venerable and imposing than law itself had been the keeper
of popular liberties; and to the last we may perhaps trace the
obscure record of a double origin of rights in the two words by
which the borough expressed its corporate existence—the “Citizens”
or “Burgesses,” and the “Commonalty” or “Community.” By the common
explanation of these terms they are supposed originally to have borne
exactly the same meaning, and alike served to express the general body
of freemen in the borough; but presently to have diverged in sense as
the more important “citizens” gradually absorbed the management of
public business, and appropriated to themselves the name of honour,
while the lower classes were massed together as “the communitas,” so
that this word at last came to be little more than a contemptuous
nick-name given to the mob in the later days of oligarchic rule. In
the town records, however, we find these two words used from first to
last in a precise and formal manner which is most characteristic of the
Middle Ages; each one having its own character and meaning, and neither
of them invading the place of the other. As far back as the thirteenth
century “the Burgesses” already appear as distinct from the commons at
large, and use their title with an official and technical significance
attached to the phraze which gives it a special value.[443] The use
of the word in charters and deeds seems then to denote the corporate
body of citizens who had been legally endowed with certain privileges,
whose association had been created by charter and was dissolved if the
borough lost its franchise; and who in a vast mass of business, and
especially in relations of the borough to the crown, were represented
by the official body of the town which acted in their name, and
especially assumed the title of “the Burgesses.”
But behind this corporate body lies the “communitas”—a term which has
a far earlier origin and a far deeper meaning. Whatever may be the base
use of the word which has crept into chronicles and common talk, in
municipal deeds and ordinances it is a name of dignity and honour—an
ancient title of nobility. It carries the mind far back to the
primitive society of householders in the ville, bound by mutual ties
and protected by customary rights, which had preceded the free borough,
and by its discipline had created the advanced type of commonwealth
which is discovered to us in Ipswich at the inauguration of its new
career as a chartered town. We feel the story of new beginnings such
as this to be the consummation of a long history; and even under the
corporate life of the citizens recognized by law we may sometimes
detect the persistent survival of the ancient community, which still
emerges in the half light with its consecrated title, and the remnants
of its old functions ever clinging to its shadowy form. For it seems
that in municipal records the “community” or “commune” possibly appears
as something which existed before the corporation in time,[444]
which might have its common seal separate from the mayor’s seal,[445]
which held property and exercised certain powers, and independent as
it was of all charters, survived all loss of franchises conferred by
royal grant alone. We seem to find it asserting its existence when the
borough had been dismembered, and there was no longer any place for
“the citizens.” It sends its appeals to the King over the heads of the
official caste; when an intermunicipal treaty has to be drawn up the
“communitas” usually appears as the contracting body, whose members
are bound together in mutual responsibility; it claimed to hold common
property of the borough under its own name and apparently by some other
title than the burgesses; and by its very existence it maintained to
the last the tradition of an ancient free community reaching back to
a time of which no memory was, and endowed with prerogatives on which
neither mayor nor council dared to lay their hands.
The privileges of the early community were no doubt quickly merged in
the more liberal rights which were made sure to the borough by its
charter; but there was one department, the management of their common
lands, in which the existence of a separate power seems to exhibit
itself beyond all doubt.[446] Never did the commonalty abandon their
right of control over the public estate. The division of strips of
arable ground, the apportionment of pastures and closes, the letting
of stalls or fields, the gathering in of rents for burgages or common
property let on lease, these were things done by the act and in
the name of the whole community, without any mention of “council”
or “citizens”; and in one borough after another any tampering with
the public estate by the governing class drove the whole body of
inhabitants into the streets threatening revolution. In their claim to
“have knowledge from year to year how the common ground is occupied
and by whom, and if that it be not rented the commons to seize it
into their hands, to that end that they may be remembered of their
right, and to have profit and avail thereof” ... and “to know verily
what their rent cometh to,”[447] the freemen of the fifteenth century
carried on a tradition known in the boroughs two hundred years before,
and in many instances their tenacious grip on the town lands was
evidently one of the most important factors in the shaping of town
politics.[448]
From the very beginning of municipal records, therefore, we find the
town living as it were a double life—the one buttressed on either
side by law and charter—the other sending roots deep down into the
past, and drawing from primitive custom and tradition a sustenance
which “Westminster law”[449] could neither give nor take away; the one
regularly expressed in the stately proceedings of “the Citizens”—the
other finding a fitful and incoherent, but no less distinctive
utterance in the doings of “the commonalty;” and the two, intimately
allied and constantly hostile, persisting side by side through
centuries of strained but honourable union. With these immemorial
traditions of franchises, liberties, and free ancient customs, it
followed that when burghers set up any plea for liberties old or new
they imported no revolutionary note into their demands. It is hard
to tell from what source they drew their faith in a freedom which
they confessed to have been lost, which indeed neither they nor their
fathers had known; but it seems that the conviction never failed of an
ancient type and pattern of liberty which had been proved once for all
by remote ancestors of the heroic age. Townsmen professed to claim
nothing more than such privileges as were “according to our Red Book
as we do think”; or that had been bestowed by a charter of the House
of Alfred which had once compassed them about with liberty, though it
was now, alas, _casualiter amissa_; or that dated back to the time when
the grace of the Lady Godiva had broken the bonds of slavery. Just
as Englishmen under the rule of the foreign kings looked back with
desire to the good laws of the Confessor, so the burghers had their
fiction, too, of the joy of their first estate as by law established,
and turned over the rolls of their treasure chest and bought copies of
Magna Charta, to discover anew the light of privilege that had once
irradiated the whole commonalty. We have seen in the case of Exeter
how this essential faith of the people survived, as it had preceded,
their study of historical documents. As the spirit of independence and
discussion awoke, the conflict that was presently to be waged in the
domain of religion was oddly foreshadowed in the realm of municipal
politics; when the common folk demanded that they should be allowed to
return to the written law in its primitive and unadulterated purity;
while the guardians of established order, aldermen and councillors
and great people of “the clothing,”—resting on the theory of a
living tradition and its secular “developement,”—appealed with no
less confidence and insistence to the majesty of law as it appeared
when interpreted by the custom of generations and expounded by the
scarlet-robed officials who surrounded the mayor.
NOTE A.
Mr. Maitland (Law Quarterly, January, 1893) gives a most interesting
account of the customs of holding and dividing lands in various
boroughs. On the whole he doubts whether the holding of land by
burgesses subject to communal regulations is generally a very ancient
arrangement. There seems, however, to be evidence for the antiquity
of the holding of common property by the community; and it may be
possible further to discover the existence of a permanent distinction
between the property thus held by the community for the common use,
and that held by the corporation for certain special purposes, such as
payment of ferm, taxes, public servants, and the like—a distinction
which rests on the different function which I have suggested in the
case of those bodies.
The community of Ipswich apparently possessed land before 1200.
(Gross, ii. 122, cap. xviii. 115.) For its common lands see also
Hist. MSS. Com. ix. 234-7, 246. Lands were held by Wycombe (Ibid. v.
556-7). In Morpeth the “burgesses and community” make grants of land
in the thirteenth century. (Ibid. vi. 527.) Andover in 1314 owned land
managed by the community. (Gross, ii. 307, 326, 330.) Oxford (Boase,
47) and Chester might also be cited. Also Hythe (Hist. MSS. Com. iv.
i. 432, 433), and Worcester (English Guilds, 386) and Preston (Preston
Guild Records, xxiv.). The Nottingham Records mention the “land of the
community” (ii. 269. See also 304-6). A grant of six acres of mosses
was given to Liverpool in 1309 (Picton’s Municipal Records, i. 8, 12.
For the results of holding this property see 11). Birmingham held land
and rights of common (Survey of the Borough and Manor, xiv. 74, 102).
Romney held the Salt Marsh, the Gorse, the Horseho, and the Harpe
pastures, the old bed of the Rother, the forelands and saltpits and
warrens and gardens and marshlands, “the land of the commonalty”
(Hist. MSS. Com. v. 536, 537, 539, 540-3).
Lydd (Ibid. v. 525, 531-2) seems to have held marshland common on the
Ripe for at least four hundred sheep, and the boroughs of Dengemarsh
and Orwellstow. Its ownership of the shore as against the claims of
the crown was proved in the time of Elizabeth by evidence from “the
face and vieu of the antienty of the town and church, and buryall
of men cross-legged and such like monuments.” A seal given to the
community by the archbishop at the beginning of their incorporation
“long before the Conquest,” as rumour said, was used (as distinguished
from the bailiff’s seal) as late as Elizabeth’s time for the selling
or letting of lands by the town. (Ibid. v. 530-2.) The cases of Lydd
and Morpeth illustrate the way in which the lord of a borough granted
it the possession of land along with grants of local government and
independence.
Colchester had 500 acres of Lammas lands besides Mile End Heath, etc.
(Cutts’ Colchester, 142-4); and meadow still divided by boundary
stones into strips. (Ibid. 67-8. See also for 1322 p. 142.)
Coventry owned common lands in the fourteenth century, of which there
is no suggestion that they were newly acquired, and which belonged to
the community and not to the corporation, and were distinct from lands
or property acquired under the statute of mortmain and used for the
payment of town officers, etc.
There were boroughs whose disputes about their property dated from the
very beginning of their corporate existence. Southampton was already
quarrelling about its common in the thirteenth century; and the
Norwich citizens were engaged in a lawsuit in 1205 as to their rights
of pasture on land for which rent was due to the Prior, but which the
Prior could not legally either enclose or cultivate without a grant
from the city. (Norwich Town Close Evidences, 4, 5. For the common
lands see ibid. pp. 52-64.)
In some instances the burghers apparently did not profess to own the
soil but only to hold an exclusive right to its use; and the furious
excitement of the Norwich citizens (see p. 392) about a tribute of
4_s._ yearly to the Prior for a certain meadow proves how very thin
the boundary line between possession and use might become.
The main evidence as to the possession of lands lies in the town
archives and not in public records. It is a question for lawyers why
disputes concerning them apparently were not brought before the judges
of the King’s Bench, but seem to have been settled at home by fighting
or by arbitration. Possibly because the “communitas” had no power to
sue in the law courts as a legal person. In any case it must have had
all kinds of dangers to fear—the danger of having local customary law
overridden by Westminster law, the danger of advertising the amount
of their possessions, and a danger which is constantly present in
town records, of encroachments under one pretence or another by the
corporation or members of it, and the fear of which, in days when
“the law is ended as a man is friended,” would give reason enough for
keeping out of the courts.