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.