THE CHARTER of HENRY I
[Illustration: CORONATION OF HENRY I
Claud MS., A. iii. (contemporary).]
We know that in the memorable and brief document which is called
William’s Charter, the laws and customs of Edward the Confessor were
simply confirmed. Probably the City asked no more and wanted no more.
Sixty years later the City, having prospered and grown and being wiser,
wished for a definition of their laws and liberties, which was given
them by Henry the First. I say sixty, and not thirty years, because, as
has been already advanced, it seems probable that Henry’s Charter was
granted in the year 1130, and not, as has been generally assumed, at
the beginning of his reign. I now propose to take this Charter clause
by clause.
“Henry, by the grace of God, King of England, to the archbishop of
Canterbury, and to the bishops and abbots, earls and barons, justices
and sheriffs, and to all his faithful subjects of England, French and
English, greeting.
Know ye that I have granted to my citizens of London, to hold
Middlesex to farm for three hundred pounds, upon accompt to them and
their heirs: so that the said citizens shall place as sheriff whom
they will of themselves: and shall place whomsoever, or such a one as
they will of themselves, for keeping of the pleas of the crown, and of
the pleadings of the same, and none other shall be justice over the
same men of London: and the citizens of London shall not plead without
the walls of London for any plea. And be they free from scot and lot
and danegeld, and of all murder: and none of them shall wage battle.
And if any one of the citizens shall be impleaded concerning the
pleas of the crown, the man of London shall discharge himself by his
oath, which shall be adjudged within the City: and none shall lodge
within the walls, neither of my household, nor any other, nor lodging
delivered by force.
And all the men of London shall be quit and free, and all their goods,
throughout England, and the ports of the sea, of and from all toll
and passage and lestage, and all other customs: and the churches and
barons and citizens shall and may peaceably and quietly have and hold
their sokes with all their customs; so that the strangers that shall
be lodged in the sokes shall give custom to none but to him to whom
the soke appertains, or to his officer, whom he shall put there: And
a man of London shall not be adjudged in amerciaments of money but of
one hundred shillings (I speak of the pleas which appertain to money);
and further there shall be no more miskenning in the hustings, nor
in the folkmote, nor in any other pleas within the City: and in the
hustings may sit once a week, that is to say, on Monday: And I will
cause my citizens to have their lands, premises, bonds and debts,
within the City and without: and I will do them right by the law of
the City, of the lands of which they shall complain to me:
And if they shall take toll or custom of any citizen of London, the
citizens of London in the City shall take of the borough or town,
where toll or custom was so taken, so much as the man of London gave
for toll, and as he received damage thereby; and all debtors, which do
owe debts to the citizens of London, shall pay them in London, or else
discharge themselves in London, that they owe none: but, if they will
not pay the same, neither some to clear themselves that they owe none,
the citizens of London, to whom the debts shall be due, may take their
goods in the City of London, of the borough or town, or of the country
wherein he remains who shall owe the debt: And the citizens of London
may have their chaces to hunt, as well and fully as their ancestors
have had, that is to say, in Chiltre, and in Middlesex and Surrey.
Witness the bishop of Winchester, and Robert son of Richier, and
Hugh Bygot, and Alured of Toteneys, and William of Alba-spina and
Hubert the King’s chamberlain, and William de Montfichet, and
Hangulf de Teney, and John Bellet, and Robert son of Siward. At
Westminster.”
The Charter of Henry the First must be considered both on account of
the liberties and privileges it grants, and the light it throws upon
the government of the City.
First—The Charter is addressed, not to the City of London with which it
was concerned, but to “The Archbishop of Canterbury, and the Bishops
and the Abbots, Earls and Barons, Justices and Sheriffs, and all his
faithful subjects, French and English, of all England.”
Why was it not addressed to the City? Because as yet there was no City
in the modern sense of the word. It might have been addressed to the
Bishop and the Portreeve, as William’s Charter: it was addressed to the
whole country, because the concessions made to London were understood
to concern the whole country.
From a historical point of view, the constitution of London at this
time is of very great importance, for the simple reason that, after the
Norman Conquest, London, by a succession of fortunate events, almost
wholly escaped the changes and innovations introduced by the Normans.
In the midst of the feudal oppressions and exactions which weighed
down the rest of the kingdom, London still preserved untouched and
undisturbed the free and independent rights which had belonged to all
the towns of the kingdom—there were not many—in Saxon times. In this
respect London was not only the one surviving Saxon City, she contained
also the very Ark of the English constitution itself.
[Illustration: AN ANCIENT SEAL OF ROBERT, FIFTH BARON FITZWALTER]
Let us now return to Henry’s Charter, taking it point by point.
(1) He grants to the citizens the Farm of Middlesex for £300 yearly
rent.
That is to say, the citizens of London were to have the right of
collecting the King’s demesne revenues within the limits of the County
of Middlesex. These revenues consisted of dues and tolls at markets,
ports, and bridges, with fines and forfeitures accruing from the
penal provisions of forest laws, and from the fines from the Courts
of Justice. They were collected by the Sheriff or the Portreeve for
the King; or they were farmed by the Sheriff, who paid a fixed sum for
the whole, making his own profit or his own loss out of the difference
between the sum collected and the sum paid. Now if the collection
of dues was granted to the citizens, a corporate body was thereby
informally created, though the people might not understand entirely
what it meant.
This grant has given rise to some controversy. The views and arguments
advanced by Mr. J. H. Round (_Geoffrey de Mandeville_, App. P, pp. 347
_et seq._) appear to me to satisfy all the conditions of the problem
and to meet all the difficulties. In what follows, therefore, I shall
endeavour to explain the meaning of the concession and its bearing upon
the early administration of the City in accordance with the views of
this scholar and antiquary.
The important words of the Charter are these:—
“Sciatis me concessisse civibus meis London(iarum), tenendum Middlesex
ad firmam pro ccc libris ad compotum, ipsis et hæredibus suis de
me et hæredibus meis ita quod ipsi cives ponent vicecomitem qualem
voluerint de se ipsis: et justitiarium qualem voluerint de se ipsis, ad
custodiendum placita coronæ meæ et eadem placitanda, et nullus alius
erit justitiarius super ipsos homines London(iarum).”
Does this grant mean the shrievalty of Middlesex apart from London or
of Middlesex including London? “In the almost contemporary Pipe Roll
(31 Hen. 1) it is called the Ferm of ‘London.’”
In the Charters granted to Geoffrey, Stephen gives him the
“Shrievalties of London and Middlesex,” while the Empress gives him the
“Shrievalty of London and Middlesex.” Again, “the Pipe Rolls of Henry
the Second denote the same _firma_ as that of ‘London,’ and also as
that of ‘London and Middlesex.’” In the Roll of Richard the First there
is the phrase “de veteri firma _Comitat’_ Lond’ et Middelsexa.” And
Henry the Third grants to the citizens of London—
“Vicecomitatum Londoniæ et de Middelsexia, cum omnibus rebus et
consuetudinibus quæ pertinent ad predictum Vicecomitatum, infra
civitatem et extra per terras et aquas ... Reddendo inde annuatim ...
trescentas libras sterlingorum blancorum.”
Round also maintains that the Royal Writs and Charters bear the same
witness. When they are directed to the local authorities it is to those
of London, or of “London and Middlesex,” or of “Middlesex.” The three
are, for all purposes, used as equivalent terms. “There was never but
one ferm and never but one shrievalty.”
I need not follow Round in his arguments against other opinions. The
treatment of Middlesex, he says, including London, was exactly like
that of other counties. The _firma_ of Herts was £60; that of Essex
£300; that of Middlesex, the very small shire, because it included
London, and for no other reason, was £300 also.
In other counties the “reeve” took his title from the “shire.” In
Middlesex, where the “port” was the most important part of the shire,
the “reeve” took his name from the port. The Vicecomes of “London,” or
“London and Middlesex,” was the successor of the Portreeve, or he was
the Portreeve under another name. The Shirereeve and the Portreeve,
then, are never mentioned together; writs are directed to a Portreeve,
or to a Shirereeve, but never to both. William the Conqueror addresses,
in Anglo-Saxon, the Portreeve; in Latin, the Vicecomes. Round sums up
(p. 359):—
“This conclusion throws a new light on the Charter by which Henry
I. granted to the citizens of London Middlesex (_i.e._ Middlesex
inclusive of London) at Farm. Broadly speaking, the transaction in
question may be regarded in this aspect. Instead of leasing the
_corpus comitatus_ to any one individual for a year, or for a term
of years, the king leased it to the citizens as a body, leased it,
moreover, in perpetuity, and at the low original _firma_ of £300
a year. The change effected was simply that which was involved in
placing the citizens, as a body, in the shoes of the Sheriff ‘of
London and Middlesex.’”
We find Stephen and the Empress in turn bestowing upon Geoffrey de
Mandeville the shrievalty of London and Middlesex. Therefore no regard
at all was paid to Henry’s Charter by Stephen or the Empress.
[Illustration:
_Valentine & Sons, Limited._
THE TEMPLE CHURCH]
From all this it follows that if Henry’s Charter should be dated 1130,
the citizens enjoyed the right of electing their Sheriffs and paying
the moderate rent of £300 for five years only, out of the whole
century. Let me once more quote Round (p. 372):—
“We see then that, in absolute contradiction of the received belief
on the subject, the shrievalty was not in the hands of the citizens
during the twelfth century (_i.e._ from ‘1101’), but was held by them
for a few years only, about the close of the reign of Henry I. The
fact that the sheriffs of London and Middlesex were, under Henry II.
and Richard I., appointed throughout by the Crown, must compel our
historians to reconsider the independent position they have assigned
to the City at that period. The Crown, moreover, must have had an
object in retaining this appointment in its own hands. We may find
it, I think, in that jealousy of exceptional privilege or exemption
which characterised the _régime_ of Henry II. For, as I have shown,
the charters to Geoffrey remind us that the ambition of the urban
communities was analogous to that of the great feudatories, in so far
as they both strove for exemption from official rule. It was precisely
to this ambition that Henry II. was opposed; and thus, when he granted
his charter to London, he wholly omitted two of his grandfather’s
concessions, and narrowed down those that remained, that they might
not be operative outside the actual walls of the City. When the
shrievalty was restored by John to the citizens (1199), the concession
had lost its chief importance through the triumph of the ‘communal’
principle. When that civic revolution had taken place which introduced
the ‘communa’ with its mayor—a revolution to which Henry II. would
never, writes the Chronicler, have submitted—when a Londoner was
able to boast that he would have no king but his mayor, then had the
sheriff’s position become but of secondary importance, subordinate, as
it has remained ever since, to that of the mayor himself.”
As to the “independent position” of the City spoken of in this passage,
perhaps that has been partly exaggerated. At the same time, when we
consider (1) that London, as Stubbs states and Round agrees, was a
bundle of communities, townships, parishes, and lordships, of which
each had its own constitution; that (2) as Stubbs states and Round
agrees, by Henry’s Charter, “no new incorporation is bestowed; the
churches, the barons, the citizens retain their ancient customs”; (3)
the really great concession made by Henry; and (4) the continuance of
the form, if not the reality, of the Folkmote, we must acknowledge
that the independence of the City was relatively great. And we must
remember, further, that the Sheriff, or the Portreeve, was not the
Mayor, nor was he the Justiciar; he was the financial officer of the
King to look after the _firma_, and the taxes, fines, etc. The various
jurisdictions and lordships had their own Courts; the City was not a
corporate body; it had no head, unless it was the chief of that shadowy
association, the Guild Merchant; it had no commune, and it had no Mayor.
(2) Henry gave them the right to appoint their own Justiciar.
Under the Saxon kings, criminal cases were tried in the Courts held by
the Sheriff in his hundred, or the lord over his demesne. There were
thus a very great number of Courts, the fines and forfeitures of which
went to the owner of the _soc_ or estate. William the Conqueror secured
to himself the proceeds of these trials, together with the revenues
arising from the new feudal tenures, by establishing the _aula regis_,
the King’s Court, with the Chief Justiciar who sat in it. The _aula
regis_ went with the King wherever he went. Before long, persons were
appointed to be itinerant justices, so that the _aula regis_ included
and suspended all older Courts. These new and uncertain jurisdictions
were extremely unpopular. If, however, a city could obtain the
privilege of electing its own Justiciar for its own cases, there would
be some security of obtaining justice without delays—the Justiciar
holding his office on good behaviour only; also that the ancient laws
and customs would be observed; that there would be no temptation to
impose arbitrary and grievous fines; that the numerous extortions
connected with the new feudal tenure, possible where the royal revenues
largely depended upon the amounts so raised, might in some measure be
checked.
The office of Justiciar of London presents many difficulties,
partly because there is no evidence, with a few exceptions, of the
existence of such an officer. The office, Round contends (_Geoffrey de
Mandeville_, p. 373), “represents a middle term, a transitional stage,
between the essentially _local_ shirereeve and the central ‘_justice_’ of
the King’s Court.” He shows that—
“The office sprang from ‘the differentiation of the sheriff and the
justice,’ and represented, as it were, the localisation of the central
judicial element. That is to say, the _justitiarius_ for Essex, or
Herts, or London and Middlesex, was a purely local officer, and yet
exercised, within the limits of his bailiwick, all the authority
of the king’s justice. So transient was this state of things that
scarcely a trace of it remains. Yet Richard de Luci may have held the
post, as we saw, for the county of Essex, and there is evidence that
Norfolk had a justice of its own in the person of Ralf Passelewe.
Now, in the case of London, the office was created by the Charter of
Henry I., a charter which was granted (as I contend) towards the end
of his reign, and which expired with the accession of Henry II. It is,
therefore, in Stephen’s reign that we should expect to find it [the
office of justiciar] still in existence; and it is precisely in that
reign that we find the office _eo nomine_ twice granted to the Earl of
Essex, and twice mentioned as held by Gervase, otherwise Gervase of
Cornhill.”
We find a good deal more.
In the second year of Stephen, the King was called upon to decide
between the Priory of the Holy Trinity and the Constable of the Tower
concerning certain lands on East Smithfield. Among those present in
Court was one Andrew Buchuinte—“Bucca uncta”—an Italian by origin, with
many other burgesses of London. The King called upon Andrew to speak in
the name of the citizens as their Justiciar. This same Andrew is found
as a witness at the investiture of the Priory with the Cnihten gild’s
soke in 1125, and again as a witness in the agreement between Ramsey
Abbey and Holy Trinity, between 1125 and 1130. During the existence of
the office of Justiciar, the King addressed him by name, followed by
the Sheriff and the citizens.
In 1339, Andrew had ceased to be Justiciar. He was succeeded by Osbert
Octodenarius—“Huit deniers”—whom Garnier calls
Une riche hume Lundreis
Ke mult ert koneiiset de Frans et d’Engleis.
This Osbert was Thomas à Becket’s kinsman and first employer.
In 1141 the Empress addresses a writ to Osbert Octodenarius, as the
Justiciar, according to Round’s conclusion, his name being followed by
that of the Sheriff.
Eleven years before this, in 1130, the name of Gervase appears as
Justiciar; it is in the very year of Henry’s Charter. Round connects
this Gervase with Gervase of Cornhill without any reasonable doubt.
Lastly, we find, as stated above, Geoffrey de Mandeville appointed
Justiciar by Charter of the Empress. He calls himself “Comes Essex
et Justiciarius Londoniæ” in a document of 1142-43. It is therefore
certain that this great Earl counted it among his chief honours to be
the Justiciar of London. Considering the history of this lord, we may
well understand the kind of justice which he would mete out to the
unfortunate citizens.
(3) He granted that they should not plead without the City walls.
This gave the parties to a civil case the same kind of protection as
the preceding clause gave to defendants in a criminal case. The _aula
regis_ travelled with the King. Plaintiff, defendant, and witnesses had
to travel about with the King also, until they could get their case
heard. It was a grievance exactly like that of the present day, when
more cases are set down for the day than can possibly be heard, and
plaintiff, defendant, and witnesses, and solicitors have to attend,
day after day, until their case comes on; those who come up from the
country have to live in hotels at great cost; those who live in London
have to neglect their business at great loss. It is strange that we
should now be submitting to a system quite as iniquitous and, one would
say, as intolerable, as that from which London was relieved early in
the second quarter of the twelfth century.
(4) The citizens were to be “free from Scot and Lot and Danegeld and
all Murder.”
Scot and Lot must be taken together as meaning the levy of taxes by
any kind of authority for public purposes. Every citizen had, for
civic purposes, to pay his Scot and Lot, _i.e._ his rates, according
to his means. Danegeld was a tax of so much for every hide of land (a
hide being probably one hundred acres). It was originally imposed for
the purpose of resisting, expelling, or buying off the Danes. It was
abolished in the reign of Henry the Second. In any case of murder the
hundred in which the murder took place had to pay a fine. This, in a
populous city, where violence was rife and murders were frequent, might
become a burden of a very oppressive kind. Exemption, therefore, was a
privilege of some importance.
(5) None of the citizens should be called upon to wage battle.
When we consider that the only justification of ordeal by battle was
the theory that the Lord Himself would protect the right, we ask
whether the Age of Faith had already passed away. It had not, but here
and there were glimmerings of change. According to G. Norton, no man
was ever compelled to fight in order to prove his innocence.
“If any man charged another with treason, murder, felony, or other
_capital_ offence, he was said to _appeal_ him, and was termed an
appellant; and the defendant, or party charged, was at liberty either
to put himself upon his country for trial, or to defend himself by
his _body_. If he chose the latter, the appellant was bound to meet
him on an appointed day in marshalled lists, and the parties fought
armed with sticks shod with horn. The party vanquished was adjudged
to death, either as a false accuser or as guilty of the charge. If
the defendant could maintain his ground until the stars appeared,
the appellant was deemed vanquished; if the defendant called for
quarter, or was slain, judgment of death was equally passed upon
him.”—_Historical Account of London_, p. 360.
(6) A man might be allowed to “purge himself by oath.”
By this ancient method the accused appeared in Court accompanied
by his friends, compurgators. He swore that he was innocent. His
compurgators swore that they believed in his innocence. The number of
compurgators was generally twelve.
(7) The citizens were allowed to refuse lodging to the King’s household.
This permission removed a fruitful cause of quarrel. It was intolerable
that any man-at-arms might enter any house and demand lodging and
entertainment in the King’s name. With the Tower in the east of London,
and Baynard’s Castle in the west, and the King’s house a mile or so
outside the City, there seems no reason why the King should have
claimed this right.
(8) The citizens were to be free of toll, passage, and lestage.
Many people can remember the turnpike toll, the nuisance it was, and
the trouble it gave; how, near great cities, roads were found out
by which the toll could be evaded. Let them suppose a time when the
turnpike toll was multiplied a hundredfold. There were tolls for
markets, tolls of passage—fords and ferries, of lestage, a toll of so
much for every last of leather exported, tolls of stallage, tolls of
murage, tolls of wharfage, tolls of cranage, tolls through and tolls
traverse (_i.e._ tolls for repair of road or street). Then imagine the
relief of the London merchant travelling with his wares and his long
train of loaded pack-horses from one market-town to another, and from
fair to fair, when he was told that henceforth he should travel free
and pay no toll. Why did the King grant this privilege, one of the
largest and most beneficent in this Charter? Surely in wise recognition
of the fact that the more free and unfettered trade was made, the more
it would develop and increase, and make his kingdom rich and strong.
(9) No man was to be assessed beyond his means.
The penalty of a fine by way of punishment is at once deterrent and
inconvenient. It does not degrade, like flogging; it does not make a
man useless and costly, like imprisonment; it does not inflict public
disgrace, like the pillory. At the same time, in the hands of a harsh
magistrate, it may ruin a man to be fined above his power to pay. The
strong feeling on the subject shown in this clause was also illustrated
later on, when in Magna Charta it was enacted that a man might be
assessed, but “so as not to deprive him of his land, or of his stock in
husbandry or in trade.” To this day the ancient feeling against heavy
fines survives in the unwillingness always shown by juries to award
heavy damages.
(10) There should be no _miskennings_ in the Courts, and the hustings
should be held every Monday.
What were miskennings? Nobody knows. It is interpreted to mean that
a man shall not unjustly prosecute another in any of the City Courts
by deserting his first plea and substituting another. According to
Norton,[25] it is the same as miscounting, and it means false pleading
or mispleading. He goes on to show that the Normans brought with them
considerable proficiency in jurisprudence, and a “mischievous dexterity
in special pleading, by which the rights of suitors were often made to
depend on the ingenuity of the _countors_ (lawyers), rather than on the
real merits of the case.”
I have considered this Charter clause by clause, because in it Henry
seems to have given the citizens everything that they could ask or
obtain by purchase. London was left, save in one respect, absolutely
free. In fact, the citizens never did ask for more. The Charter
was framed in order to allow the City to get rich without let or
hindrance. One right the King reserved: that of taking their money for
himself; and this right, there can be no doubt, was the reason why
he surrendered all the rest; the reason why London was encouraged to
grow so wealthy and so strong. It was a right, however, which was not
felt to be a grievance. It was the very essence of things that in a
mediæval kingdom the King should be free to tax his subjects. It will
be observed that the rights conferred by the Charter of William are
not recited here. Probably they were recognised as a matter of common
usage, so that it was no longer necessary to repeat them.
FOOTNOTES:
[25] _Commentaries on the History, Constitution, and Chartered
Franchises of the City of London_, by George Norton.