Town Life in the Fifteenth Century, Volume 2

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 4s. 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.

CHAPTER X

THE TOWN OLIGARCHY

It is evident that if the towns had been called on for a confession of faith, the declaration of a pure and unadulterated freedom would have been in every mouth. There remains the question of how far it was found possible to carry that faith into the common practice of daily life.

We have seen how freedom was enthroned at Ipswich before the whole community of townsmen, who with outstretched hands and loud unanimous voice swore before heaven to maintain the liberties of the new republic. If, however, we glance again at Ipswich when it next comes clearly into view, a century after it had obtained its grant of privileges, there is very little trace of a golden age save for publicans and portmen. For in 1321 we find a narrow official class in the noontide of their power. Since there was no fixed day for elections they had been used by “lordly usurpation and private covin” to make bailiffs at their own pleasure secretly without consent of the people; they grievously taxed and amerced the commons for their own private purposes; they used the common seal without the common consent to the great burden and damage of the commonalty; and made new burgesses at their own pleasure without the public knowledge, so as to divide the entrance money among themselves; and by a regular system of forestalling and secret sale, merchants and inn-keepers had combined to rob the commons of their right to free and equal trade.[450] Against these abuses the burgesses sought to repeat and reinforce the ordinances of the town, but it may well be doubted whether the customary defiance of the laws of 1200 was likely to be corrected by the mere re-enactment or amendment of rules in the book of ordinances.

For it was not in Ipswich alone that the commonalty were held at the mercy of a handful of men in power, without hope of redress through their assemblies or constitutional methods at home. In 1304 justices were sent down from Westminster to inquire into a complaint of “the poor men of our city of Norwich,” where, according to the petition of the commons, the rich, in defiance of all laws against forestalling, bought up victuals and goods before they came into the market, and daily inflicted other grievances on the said poor men “to the manifest deterioration of the city.”[451] And again in 1307, “les menes gentz de la communaute de la ville de Norweiz” appeal to the king on the ground that an inquiry by justices had been promised them concerning the fines and tallages which weighed them down; the poor people, they said, had been unjustly taxed by the bailiffs and the rich (“les riches”), “but on the hearing, the bailiffs and the rich spoke so fair to the said poor people, promising them redress and that they should have no cause to complain in future, and that no tallage should be levied from them without their common assent, that the poor men ceased from their suit. But now the said bailiffs and rich have levied two hundred marks without warrant and threaten to levy a still higher tallage.”[452] The law of the matter was clear enough, for only a year or two before the principle that the bailiffs could only assess taxes “by the assent of the whole of the commonalty or of the greater part of the same” had been re-affirmed;[453] and the king accordingly sent answer, “If tallage have been made without assent of the commonalty, let them have a writ against those who have imposed such tallage to answer before the king, and that henceforth it be not done.”

It is, however, hard to say what amount of relief to the mean folk was actually given by such an order from high quarters. At the very same time, in 1304, the people of the neighbouring borough of Lynn were seeking protection against the ruling burgesses, and charged them with the usual trespasses – with assessing tallages without the unanimous consent of the community; levying these tallages and other great sums of money from the poor and but moderately endowed men of the community; employing the sums thus raised for their own use and not for the advantage of the community or the reparation of the town; forestalling goods on the way to market; and establishing and using corruptions contrary both to common and to merchant law. The great people of Lynn, however, easily put themselves beyond all fear of justice by simply buying from the king in 1305[454] letters of pardon and release for the crimes of which they were accused – letters which evidently left them free to go on in the same course. Upon which the people instinctively turned to their natural ally, the lord of the manor himself, and through the powerful aid of the Bishop, and his aid only, were able to win from the mayor in 1309 the composition which became the charter of their liberties, according to which all the “unreasonable grievous” tasks and tallages laid by “the great men of the town upon the mean people and the poor” – or as the Latin version has it by the potentiores on the mediocres and inferiores – and their “grievous distressing so violently of them,” were to come to an end, and taxes were henceforth to be assessed in due measure according to the three degrees of prosperity.[455]

It is evident that we need not wait for the fifteenth century to discover an oligarchical system of administration which was in its full strength in the English boroughs as early as 1300, and can even be traced back at least fifty years earlier. In the middle of the thirteenth century the commons of Lincoln, having a dispute with the lord of S. Botolph’s fair about tolls, formally withdrew altogether from the fair till they should obtain a remedy from the king; but two sons of the mayor and two other burghers, rich traders who did not want their business interrupted, and who were evidently town officials with command of the common seal, gave the lord a charter promising a yearly rent of £10 from the Lincoln citizens, and this “without any assent or consent of the commonalty.” It was in vain that the people made remonstrance; the charter was still binding in 1276,[456] and in 1325 the inhabitants of Lincoln were still without defence against the “great lords of the said city” who formed the corporation. While “les grauntz Seigneurs” themselves paid nothing, the “mean people” were arbitrarily taxed without their own consent; they alone were forced to keep the nightly watch; they paid their murage tax for the building of the wall, and the rulers used the money for their own purposes and rendered no accounts to the people;[457] and the pitiful appeal of the commonalty to the king praying him to provide some remedy for their grievances only proved how helpless they were to influence the governing body which was supposed to rule solely by their consent. In like manner the mayor and other officers of Oxford were charged in 1294 with exacting tallages without the king’s order or the town’s consent, applying the town revenues to their own uses, raising loans without proper receipts, and collecting money for expenses of the rich on juries and assizes while the poor were left to pay their own costs.[458] Probably the richer party secured the jury, for the verdict was given against the burgher who had instituted the suit; but his complaint is so absolutely similar to those raised in other towns at the same time that we can scarcely doubt its truth.[459]

The inner contentions of Bristol[460] and of Andover[461] in the early years of the fourteenth century repeat in varying forms the same story of a few rich burghers managing the whole machinery of administration, and of a commonalty whose voice was often scarcely heard in elections, who were unable to secure the just assessment of taxes, or to prevent the money from being devoted to improper uses, and who daily saw the laws of trade – the assize of bread or beer, the injunctions against forestalling and regrating and a thousand tricks of commerce – diverted to the convenience of the rich officials, while the common folk patiently expiated their sins before the judgment seat of the great offenders who sat in careless immunity on their high places.

It is manifestly hard to find in the thirteenth and fourteenth centuries the happy age of the historian’s dream, when “there was a warmer relation between high and low, when each class thought more of its duties than its interests, and religion, which was the same to all, was really believed in. Under such conditions,” we are told, “inequality was natural and wholesome;” and apparently an age of innocence and peace attested the fostering care of a universal faith; for according to this theory, so highly commended and so widely believed, it was only “when religion became opinion, dubious more or less and divorced from conduct, while pleasures became more various and more attainable, the favoured classes fell away from the intention of their institution, monopolized the sweets of life and left the bitter to the poor.”[462] Whatever “the intention of their institution” may have been, however, there is not a particle of proof that the intention of the favoured classes themselves did at this time differ sensibly from that which prevailed at the Reformation; nor were the dominant folk of town or country disposed voluntarily to nail their interests on the cross of duty – whether we consider the knight “hunting hardily” hares and foxes,[463] and wholly regardless of his oath to the labourer “to keep him and his chattel as covenant was between them;”[464] or the lord with his loud laugh calling for his rent;[465] or the trader filling his pockets in “deceit of the poor commons,” the alderman adding field to field, the cook and brewer building their burgages out of the pence of the poor. The relations of inequality, in the exceedingly bitter form in which they were then known, may have seemed natural, or perhaps supernatural, to an age when all life, social, economic, and political, was brought under the universal sway of dogma and superstition; but it is certain that they were not held to be wholesome by those who suffered, and whose struggles to win the freedom so long promised to them in ordinance and charter fill the town records of succeeding centuries.

For in these young republics formidable difficulties lay in the way of securing any popular control whatever over administration. In the first place the general assembly, which was to be the pledge of the people’s liberties, and to assure to them the final word about the taxes they had to pay and the manner in which they were to be governed, proved in its actual working but a poor security for freedom. It would seem sometimes that in the hurry and excitement of expanding trade, men busy in their shops had as little time or attention to bestow on serious politics as American citizens of a later date; or perhaps the very opposite accident might befall the borough, and a heterogeneous and unmanageable mob gathered at the place of assembly, where strangers and unenfranchised journeymen pushed their way in among the lawful citizens. But a tumultuous gathering of ignorant and over-tasked artizans and poor householders crowding from the narrow lanes of the borough must manifestly have been a very rare and occasional expedient, and at the best meant an assembly incapable of real business. In general it would seem that any small number of burgesses who happened to be present at a meeting in the common hall or at the court leet, or a select group of the better class specially summoned by the mayor,[466] were taken to represent the general body of inhabitants, and their consent was legally counted as conveying the assent of the burghers at large. From the very first, and under the most favourable circumstances, it is evident that the assembly gave no real security to the commonalty, that through its gatherings they could never hope to bring sustained or efficient pressure to bear on the governing class, and that “the entire assent and consent of the whole community” was for the most part simply taken for granted. If the theory of government by the people for the people already existed in law books and ordinances the means of realizing such an ideal had yet to be found.