BATTLE FOR FREEDOM
(1.) _Towns on Royal Demesne_
SO auspicious a beginning of municipal life as was granted to Ipswich
did not however fall as a matter of course to the lot of every English
town, nor was political liberty by any means an inevitable consequence
of favourable commercial conditions, or necessarily withheld from
boroughs in a humbler way of trade. In a society where all towns alike
depended upon some lord of the manor who owned the soil and exercised
feudal rights over his tenants, that which mainly determined for each
community the measure of independence it should win, and the price
which its people should pay for liberty, was the form of lordship to
which it was subject. By the decisive accidents of position and tenure
the fate of the town was fixed, rather than by the merits or exertions
of the burghers.
First among the boroughs in number and importance were those in
“ancient demesne”—that is, boroughs which held directly from the
king, and were therefore reckoned as being a part of the national
property, such as Canterbury, York, Winchester, Southampton, Yarmouth,
Nottingham, Gloucester, and so on. A second group was formed by the
towns which belonged to a lay noble, like Morpeth, Berkeley, or
Leicester; or were held by him as a special grant from the king, as
Barnstaple or Liverpool. Finally there were the towns on ecclesiastical
estates, whether they were the property of a bishopric like Lynn, which
was under the Bishop of Norwich, Wells under the Bishop of Wells,
Romney and Hythe under the Archbishop of Canterbury; or whether they
owed suit and fealty to a convent, as the towns of Reading and St.
Albans, which belonged to the abbots of those monasteries respectively,
Fordwich to St. Augustine’s at Canterbury, Weymouth to St. Swithun’s
at Winchester.[425] In all these various groups the towns were equally
willing to relieve their feudal superior, king or lord or bishop,
of the cares of government, and the only question was how far the
king would go in supporting these demands, or how far the noble and
ecclesiastic could be compelled to acquiesce in a re-distribution of
feudal jurisdiction and privileges in favour of traders and “mean”
people.
Happily for the national wealth and freedom the great majority of
towns in England, and almost all those of importance, were part of
the royal demesne, and the king was lord of the soil. Fenced in by
privileges which had been devised to protect the interest of the King,
and which they gradually found means to transform into institutions
for the protection of their own interests, the burghers on ancient
demesne were bound into one fellowship by the inheritance of a common
tradition and common immunities;[426] and regarding their towns as the
very aristocracy among the boroughs, enjoyed a self-conscious dignity
such as the Great Powers of Europe might feel towards the less favoured
minor States. There is the ring of a haughty spirit in the answer sent
by the men of Hereford when the people of Cardiff begged for a copy of
their “customs” to help them in deciding on the constitution of their
own government. “The King’s citizens of Hereford,” they say, “who have
the custody of his city (in regard that it is the principal city of
all the market towns from the sea even unto the bounds of the Severn)
ought of ancient usage to deliver their laws and customs to such towns
when need requires, yet in this case they are in no wise bound to do
it, because they say they are not of the same condition; for there
are some towns which hold of our Lord the King of England and his
heirs without any mesne lord; and to such we are bound, when and as
often as need shall be, to certify of our laws and customs, chiefly
because we hold by one and the same tenure; and nothing shall be taken
of them in the name of a reward, except only by our common town clerk
for the writing and his pains as they can agree. But there are other
market towns which hold of divers lords of the kingdom wherein are both
natives and rustics of ancient time, who pay to their lords corporal
service of divers kinds, with other services which are not used among
us, and who may be expelled out of those towns by their lords, and may
not inhabit in them or be restored to their former state, but by the
common law of England.[427] And chiefly those and others that hold by
such foreign services in such towns are not of our condition; neither
shall they have our laws and customs but by way of purchase, to be
performed to our Capital Bailiff as they can agree between them, at the
pleasure and to the benefit of the city aforesaid.”[428]
I. Singular advantages, indeed, fell to the lot of towns thus happily
situated on the national estate. The King was a Lord of the Manor too
remote to have opportunity for overmuch meddling, and too greatly
occupied with affairs of state to concern himself with the details
of government in his numerous boroughs.[429] County magnates might
cling passionately to the right of holding local courts as sources
of power, and yet more important sources of wealth; but such rights
were of small consequence to a powerful sovereign, who as supreme head
of the law could call up criminals to his own judgement seat from
every court in the country.[430] Confidence of supremacy made him
careless to put it to the test by abrupt assertions of authority, as
private owners, apprehensive and uncertain, might be tempted to do;
and in his indifference to small uses of power and devices for paltry
gain, he held loosely to rights that brought much trouble and little
profit.[431] So long as his yearly ferm was punctually paid,[432] he
was ready to grant to the townsfolk leave to gather into their own
treasury the petty sums collected at the borough or manor courts,[433]
or to make their mayor the king’s escheator; and while he thus won
their gratitude and friendship he lost nothing by his generosity. In
surrendering local claims for a fixed payment, he not only relieved
himself of the charge of salaries to a multitude of minor officials,
but he had no longer to suffer from the loss of fines and dues and
forfeitures which were nominally levied for the King, but which had
a constant tendency to find their way into the pockets of the town
officers or the tax-collectors rather than into his exchequer. In many
cases, moreover, he may have gained considerably by the price which he
demanded for his favours; and the royal accounts possibly give a very
inadequate record of the number of special gifts of money and yearly
annuities paid by boroughs to the King in return for liberties granted
to them.[434]
II. As lord of the manor, therefore, the King was a liberal master,
always ready to arrange a compromise with his tenants as to vexatious
feudal claims. But he was equally ready to listen to their prayers for
freedom from the control of officers of the Shire and the Hundred.
So long as it was to the benefit of the central authority to break
up and weaken provincial governments, to curtail the powers of the
sheriff, to confound ambitious designs of local magnates, and shatter
pretensions on the part of the nobles which might tend to strengthen
hereditary enemies of the crown, so long the townspeople might count on
the sovereign’s support in the struggle for independence. In questions
therefore that arose as to rival jurisdictions, in claims put forward
by a borough against neighbouring lords for rights of navigation
or pasturage or fishing, in all disputes which were carried in the
last resort to the arbitration of the king, his sympathy, especially
if a fitting “courtesy” was offered by the burghers, was with his
borough.[435] Powers won from local governments or from feudal lords
were divided between the King and the municipality; and under shelter
of the royal authority large rights of local self-government were
rapidly gathered into the burghers’ hands. Functions once exercised
by the bailiff of the hundred and the sheriff of the county were
handed over to the mayor; he collected the fee-ferm, held the view of
frankpledge, levied taxes,[436] mustered the men-at-arms, and presided
over civil and criminal courts.
III. Nor was there any serious difficulty as to the exercise of
the sovereign rights of the crown. To the King it mattered little
whether he sent a special deputy direct from the court, or whether he
delegated powers to the mayor, and used him as an official immediately
responsible to the crown; while on the other hand such a change meant
much present solace to the townsfolk. A compromise was therefore
easily brought about between the monarch and the people. The mayor was
invariably appointed as the King’s Clerk of the Market, the Measurer
and Gauger at the King’s Standard, the Manager of the King’s Assize;
he became the representative of the sovereign in the most important
charges of administration, as one of the King’s Justices[437] in the
town, as Admiral,[438] as Mayor of the Staple. Administrative changes
such as these left the power of the sovereign untouched and cost him
nothing; while on the other hand the central government was by this
means provided with a ready-made staff of trained officials,—a staff
which the King could not possibly have created,[439] nor paid out of
his empty exchequer even if he had been able to create it—but which
had become absolutely essential for carrying out the supervision
of local affairs at a time when such supervision was growing more
important every day, from the point of view both of the King and
of the people. The towns on their side, relieved by the new system
from miseries[440] under which they had suffered, readily forgot
distinctions between laws made by them and made for them, so long as
these were administered by officers of whom they were allowed the
election and control.[441]
IV. Finally if the towns suffered from the officers of the royal
household, a remedy was easily granted them. The sovereign found no
personal inconvenience in transferring the duties of these officers
to the governors of the boroughs themselves; and the mayor or bailiff
became the King’s Steward, and Marshal of the King’s Household in the
borough. In short, as the towns advanced to independence, all manner
of powers and responsibilities were heaped together on their chief
officer, with no clear discrimination between his various and oddly
mingled functions. Men did not pause to ask which of his masters the
mayor at any given moment was serving, whether he was acting as head of
the city government to carry out the burghers’ will, or as the officer
appointed by the sovereign to execute his laws;[442] and nice questions
as to the exact division of authority which had really taken place were
so manifestly irrelevant in presence of the harmonious concentration
of all power in a single hand, that jealousies and suspicions on both
sides were allayed, to the great furtherance of peace and concord. To
the mediæval poet who drew a picture of Love as “the leader of our
Lord’s folk in Heaven,” standing as a “mean” or mediator of peace,
there was one obvious comparison—even “as the mayor is between the
King and the commons.”[443]
The history of the royal boroughs, therefore, so far as their relations
with the King are concerned, reduces itself into a long list of favours
asked and given. Frequent troubles of state no doubt stimulated the
generosity of sovereigns; and times of political disturbance and
revolution proved occasions when the towns rose into independence
through the necessities of kings, who confirmed old franchises and
granted new ones, and “right largely made charters thereof, to the
intent to have the more good-will and love in their land.”[444]
The civil wars under Henry the Second,[445] the money difficulties
of Richard and John, the troubled minority of Henry the Third, the
disorders under Edward the Second, the commercial policy of Edward the
Third, the political insecurity of Henry the Fourth after his seizure
of the throne, the financial needs of Henry the Fifth, the tumults
and fears of the reign of Henry the Sixth, the anxiety of Edward the
Fourth to conciliate the kingdom,—all these were so many heaven-sent
opportunities for the burghers to win new instalments of local liberty;
while the two periods of reaction brought about by the fear of the
Peasant Revolt under Richard the Second, and the nervous apprehensions
of Richard the Third, were themselves made use of by the governing
class in the boroughs to confirm and tighten their authority. So
monotonous indeed is the record of the burghers on the royal demesne,
all moving together along the same well-beaten road to independence,
winning the same privileges, even winning them at the same time,[446]
that a brief statement of liberties secured by any single city will
serve to illustrate the general history of all.
Up to the time of Henry the Second Norwich enjoyed certain liberties
and privileges, but its citizens were practically feudal servants of
the King, who appointed their governors, took the profits of their
courts, and looked on the city as a private possession of his own.
Their true freedom began with the charter granted them in 1194 by
Richard the First.[447] They were to have the customs of London;
the burgesses might not be summoned to answer any plea outside the
city; they were henceforth to elect their own Provost, “such as may
be fitting to us and to them;” and they were allowed to hold their
city at a ferm rent of £108 a year, which they themselves, instead
of the sheriff, should collect and pay to the Exchequer. For the
confirmation of their rights, “and for having the city in their hand,”
the Norwich people paid 200 marks.[448] From this time the provost
took the place of the officer formerly appointed by the King, presided
over the Borough Court in the Tolbooth and possibly held the view of
frankpledge, and paid the fines of the courts into the city treasury.
The sheriff of the county, however, still held a higher court, the
_Curia Comitatus_, within the enclosure of the castle, where he
exercised criminal jurisdiction, and jurors made the presentments
ordered by the assize of Clarendon.[449]
But this power of the sheriff only lingered on for a few years. In 1223
a new arrangement was made between the citizens and Henry the Third.
Norwich consisted of four distinct divisions which had been naturally
formed out of the four hamlets created by the first settlers and
which had by degrees become united into a single town:—_Conesford_,
where the earliest comers gathered round the ford over the river,
protected by the stream on one side, and on the other by the mound
on which the castle stood in later days; the _Westwick_, whose name
shews its later foundation, and which lay on the further side of the
fortifications, within the bend of the river; the _Magna Crofta_ or
big field of the castle, lying below the entrenchments midway between
Conesford and Westwick, which was made at the Conquest into a new ward,
Mancroft Ward; and the _Ward-over-the-Water_ on the further bank of
the river, somewhat cut off from the rest of the town.[450] For the
government of these “leets,” as the divisions came to be called, it was
decided in 1223 that the burghers should elect four bailiffs, one for
each district.[451] There was no longer to be any provost, since the
bailiffs were to take his place in joint government of the town, and
were further to take over the criminal jurisdiction hitherto exercised
by the sheriff in his court at the castle. From this time therefore
most of the social, commercial, and criminal affairs of the city lay in
the burghers’ own hands.
The four bailiffs, however, had still no control over the castle and
its entrenchments, nor over a wide reach of land that lay along the
river, stretching past Conesford and Mancroft and Westwick—land
owned by the prior and convent; nor had they any authority over
the cathedral, the priory, and the bishop’s palace that lay within
Westwick, nor over property owned by them or by other ecclesiastical
bodies which penetrated into the heart of the city; while on the other
hand tenants of castle and prior and bishop were all making their
profit out of the city trade, and enjoying its peace and protection.
Therefore the next claim of the burghers necessarily was that the
King should give to the municipality authority to tax for the common
expenses all inhabitants alike, under whatever lord they held; and in
1229 they obtained a royal grant that all “who should partake of the
liberties which we have granted to the said citizens of Norwich ...
shall be taxed and give aid as the said citizens;” and that “if anyone
has withdrawn from their customs and scots, he shall return to their
society and custom, and follow their scot, so that no one shall be quit
therefrom.”[452] There was no trifling with the municipal authority
in this matter; in 1236 and 1237 when the tenants of castle and prior
attempted to resist the claim on their moneys, the sheriff was ordered
to summon them before him to show by what right or warrant they claimed
acquittance from payments to the city treasury; and again in 1276, when
the tenants of the castle refused to pay their share of taxes, the case
was brought before the barons of the exchequer, and an order came from
Westminster that the sheriff was forthwith to levy the sum due and hand
it over to the city.[453]
Henry the Third granted many other favours “to our beloved citizens
of Norwich,” feeling perhaps the advantage of their friendship amid
the increasing troubles of his reign; and the burghers of Norwich
certainly, like those of Winchester, took sides with him in the war
against Simon de Montfort.[454] In 1253 they had been allowed to
enclose their city with a ditch.[455] In 1255 (twenty years before
a general law was passed to this effect for all Englishmen), they
were freed from arrest for debt of which they were not sureties or
principal debtors. And in 1256 Henry granted a charter which ordered
that the “citizens shall answer at our exchequer by their own hands
for all debts and demands ... and that no sheriff or other bailiff
of ours shall henceforth enter the city aforesaid to make distresses
for any debts;” which decreed further that all merchants who shared
in the Norwich liberties and merchandises were to pay the city taxes
“wheresoever they shall make their residences;” and which ordained
lastly that “no guild shall henceforth be held in the aforesaid city to
the injury of the said city.”[456] The sheriff was thus finally shut
out from all land or houses held by the citizens; and absent merchants
were subjected to their lot and scot.
From Edward the First the citizens in 1305 obtained the right to hold
the Leet of Newgate in Norwich, which the King had “lately recovered
against the Prior of Holy Trinity”; and further paid a fine down,
and promised to pay £10 yearly into the Exchequer for ever, for
a charter granting that they should not be impleaded outside the
city; that they should not be convicted by any foreigners but only
by their co-citizens, save in matters touching the King or the whole
commonalty; that the bailiffs should have power to assess tallages and
other reasonable aids “by the assent of the whole of the commonalty,
or of the greater part of the same” for the protection and advantage
of the city, and to make “reasonable distresses” for the levying of
these tallages as was done in other cities; and that they should hold
the Leet of Newgate which the Crown had “lately recovered against the
Prior of Holy Trinity.”[457] Further the burghers remembered a trouble
into which they had fallen in the case of a thief who had stolen some
cloth and brought much sorrow on the city; for having fled to the
church of St. George he finally escaped out of it though the door was
guarded by four parishes, who were all fined for their lax vigilance;
then being caught and condemned by the bailiffs and commonalty he was
condemned to be hung, but at his burial found to be still alive, and
the man who had cut him down was thrown into prison; and lastly the
bailiffs were accused of illegal action in hanging him “without any
man’s suit and without capture in the act,” and of “taking up thieves
and malefactors for trespasses done outside the city and executing
judgement on them in the city,” and the city liberties had been seized
into the King’s hands, and a royal officer set to rule over them.[458]
So the burghers in 1307 presented a petition that the right of infang
theof and outfang theof, which they had used at all times “whereof
memory runneth not,” might now be definitely inserted in their charter.
Further, since the sheriff “by malice” still found means on one excuse
or another to arrest a citizen from time to time—and this though the
Norwich people had the return of all manner of writs[459] so that
neither the sheriff nor any foreign bailiff had any right to meddle
with them—they required of the King that at their demand every citizen
thus seized should be delivered over to them out of the hands of the
alien. Likewise they prayed that so long as a burgher lived in the
city he should never be required to attend any foreign court whatever
by reason of any foreign tenure he might hold; and that no foreign
tenement should give the right to sheriffs or foreign bailiff to
summon him to be in juries or inquests outside the city. Lastly, as a
protection against any danger of forfeiting their franchise by failure
to pay the ferm rent, they asked permission for the corporation to hold
in perpetual possession certain lands and houses the profits of which
might be set apart for the rent.[460]
Under Edward the Third the sheriff of the county was deprived of his
last plea for interference within the city walls. Up to this time he
had still collected rents and taxes and done justice for the tenants
of the Castle Fee; and the ditches of the Castle and the Fee, thus
freed from city rule, had been made a sort of refuge for felons and
malefactors flying from the jurisdiction of the city officers. All
this, however, was in 1346 handed over to the bailiffs, and the sheriff
was in no wise to interfere.[461] Moreover, in consideration of the
cost to which the citizens had gone in enclosing the city, they were
set free for ever from the jurisdiction of the clerk of the market of
the King’s household.[462] Norwich was further given its own Admiral,
who sailed about in the “admiral’s barge,” and who held admiralty
courts and administered its law.[463] In 1331 it became a Staple town,
and its mayor was made a mayor of the Staple, with a salary of £20 and
a seal given by the king.[464]
Meanwhile the Norwich people had been gradually perfecting their own
internal system of government—a system which will be described in a
later chapter—and in the difficulties of Henry the Fourth they found
opportunity to complete their work. A sum of £1,000 given to the King,
besides heavy fines paid in bribes on all sides, secured in 1403 a
charter which finally guaranteed to them the constitution of their
choice.[465] Norwich was made into a county of itself. A mayor was
appointed, who was given supreme rights of jurisship.” in the city,
and received from the King himself a sword which was to be carried
before him with the point erect, along with the gold or silver maces
borne by the serjeants-at-mace. The four bailiffs were replaced by two
sheriffs, also elected by the burgesses, who were charged with matters
concerning the interests of the crown which had formerly been the
business of the bailiffs, and were responsible for the yearly rent of
the city. The mayor was appointed the King’s escheator, and thus the
last office which had been reserved in alien hands was given over to
the municipality. Finally in token of the consummation of the municipal
hopes the old seal of the bailiffs was abolished to make way for a new
city seal.
Norwich was but one among a number of boroughs whose inhabitants
quietly and steadily gathered to themselves the liberties that made
them free, for in the fellowship of towns holding of the King under a
uniform tenure throughout the “ancient demesne,” the list of privileges
granted to any one became the model for its neighbours near and
far.[466] With orderly progression, unbroken by any of the violent and
dramatic incidents that indicate a time of conflict, all the bigger
towns won by gradual instalments complete local independence. Such
changes of method as we observe are simply changes made necessary by
new national legislation, such as the form of incorporation required
after the Statute of Mortmain,[467] or the right to elect Justices
of the Peace when one power after another had been given to these
officers by law.[468] We do not distinguish seasons of plentiful
harvest and periods barren of all growth; in one century as in another
Kings stooped to accept the “courtesies” offered, and granted the
favours solicited. Nor do we find records of advantages hastily given
and timidly withdrawn; or, until the reign of Richard the Third,[469]
is there any suggestion of anxiety on the part of Kings to check or
limit the free action of the boroughs.[470] Up to that time rulers of
the state seem to have had no apprehension of peril to public order,
of jeopardy to trading interests, of injury to the administration of
justice, of possible usurpations by the municipalities which might
bring them into collision with the ordered forces of the world; and for
three hundred years statesmen freely allowed the growth of municipal
ambition, and gave full scope for the developement of all the various
systems of local self-government. The full importance of these facts
only becomes clear when we turn to the history of the towns that were
under subjection to other lords than the nation itself; and compare
the peaceful negotiations by which matters were arranged between the
royal boroughs and the State, with the violence of feeling aroused
when the misgivings and alarms of private owners were brought into the
controversy.