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That the Trinity society of Coventry was not the last of these astute fraternities of traders we know;⁴²⁶ that it was not the first we may safely believe. Indeed, it might well have been modelled on the fraternity of the Trinity at Lynn⁴²⁷– an older company by a hundred and fifty years, whose members would at no time have found any trouble in discussing the secrets of their policy with the merchants of Coventry. It may be that the texture of society was never so simple or so uniform as historians have believed, that the humble mediæval merchant loomed big in the eyes of his yet humbler fellow-citizens, and that in many a trading town the Guild Merchant was the monument of the successful capitalists of the village, and of a triumph so complete that the petty details of its progress fell out of memory. How many typical forms the early guild may have taken from town to town, as it squeezed its way with or without a welcome into communities of every shape and consistence, we have not yet materials to say; nor do we yet know by what varieties of compact it may have become the indispensable minister or the master of the municipal authority; or what was its common relation to the lesser forms of trade. It is indeed conceivable that later research may show us that in many cases the subjection of the crafts to the town – a subjection so astonishing in the silence, the calm, the rapidity with which it is affected – was carried out by the indissoluble union of guild and corporation. Organized in days when the way to wealth lay in the buying and selling of raw material, and in consequence by its constitution destitute of powers to follow the artizan into his workroom and meddle with his tools and the stuff of his trade, the Guild Merchant must very early have seen its officers falling behind the officers of the town before whom all bars and doors were thrown open; but if, suiting their policy to the necessities of the situation, seneschals and scavins of the Guild preserved their power by becoming bailiffs and councillors of the borough, not by laying down their authority before the wardens of the cobblers or the tailors, or even by taking them into its councils; such a guild might make its end neither by resigning to the crafts its cherished prerogatives nor by a spontaneous death, but by a consecrated alliance, in which it only seemed to merge its identity in the borough corporation, while in reality it secured the preservation of its ancient name and guaranteed the traditions and authority of its order. As in Coventry, the force which had first served to overthrow the mastery of the lord of the soil might be employed later to enforce its own despotism over a subject people; and the question whether it used an old or a new name was a matter of little consequence to the inferior and dependent class. In either case the control of the town rested in the hands of an oligarchy of the richer sort of traders, who by combination were able to exact from the mass of the working people an unlimited submission, and practically held at their mercy the fortunes of the free commons of the city.

NOTE A

The satisfactory working of the system may be inferred from its continued use in the next century. Plymouth may serve as an illustration. Among the three little fishing hamlets, the Augustinian Priors’ Sutton or South Town at the mouth of the Plym, and two King’s Suttons which had been granted out to noble families, the first stirrings of independent life seem to have begun about 1282, when the Sutton people, wanting to be free burgesses and to have their fair and market, begged for a piece of waste ground near the port, five perches long and one broad, and a piece of land “in the withdrawal of the sea” six acres big, where the King’s bailiff held his court in a certain house, and where every fishing boat coming to dry nets or sails paid toll to the King. They set up a stone cross and a stall for their market; in 1311 they made a final agreement with the Prior, and then or very soon after began yearly to elect a “Præpositus, or Custos Ville de Sutton Priors, which did then rule and govern under the King.” (In the time of Edward the Third he was called mayor; Hist. MSS. Com. ix. 274-5, 279, see also 297.) In 1411 the townsmen petition that they may yearly elect a mayor and be incorporated so as to be able to buy tenements without royal license (Gross, i. 94); but apparently it was not till 1440 that they really gained their wish by the efforts of a rich merchant of Bristol, Richard Trenode, who traded with Plymouth, and of his sister Thomasine, widow of a Plymouth citizen; who at great cost and labour won for the group of hamlets their final union into the free borough of Plymouth “with one Mayor and one perpetual Commonalty”; for which the town in gratitude bound itself in a sum of £200 to maintain a chaplain in the parish church of S. Andrew to pray daily for their souls.

The important point is, however, that it was in this year, 1440, that the Plymouth Guild Merchant was either first established, or formally confirmed and given a definite position. (Gross, i. 15.) On one side a religious guild, on the other it was the governing body of the town, very jealous of its monopoly of power, as we see from the order of 1472, that every man made a freeman should be either a whole or a half-brother in Our Lady and S. George’s Guild, a whole brother paying 12d. yearly, and a half-brother 6d.; and that if any of the commons was made one of the Twenty-four he must pay 8d. yearly to the Guild, while if one of the Twenty-four was made one of the Twelve he must pay 1s. (Hist. MSS. Com. ix. 272.) Like the Guild at Coventry of a century earlier the fraternity seems to have been at first an organization of the more enterprising inhabitants to secure the liberties promised by charter, to make a stand against any aggressions of the Earl of Devon, and to rid themselves of some of their obligations to the Prior, on the plea of a convenient poverty, and a subtle appeal to the new King Edward the Fourth to revise arrangements made by Henry the Sixth “late in deed and not of right King of England.” (Hist. MSS. Com. ix. 272.) The ancient Guild of Totnes, known as the “Guild of the Commonalty” as late as 1333, survived in full power in 1449, when it was ordered that no one shall carry the mace before the mayor save a member of the Merchant Guild (Hist. MSS. Com. iii. 344-5).

CHAPTER IX
THE TOWN DEMOCRACY

According to a theory which is commonly accepted the English borough in its first condition, and probably during a considerable part of the twelfth and thirteenth centuries, did actually realize the ideal of a true democratic society; the spirit of popular liberty penetrated the whole community, pervading the council and assembly of the town, the leet court, the guild merchant, the companies of artizans; and under the favouring influences of equality and fraternity government was guided by common consent of the burgesses, by whom elections were conducted and administration controlled. Elsewhere it is known that the early communes, however strong their protest against the tyranny of alien despots, were within their own circle far from democratic in temper or practice; but it has been believed that in England, possibly by virtue of her people’s passionate instinct for liberty, town societies wore a more popular character and expressed a loftier freedom. If this theory be exact, however, the reign of the democracy was brief, and the later history of the towns from the fourteenth century onwards is the tale of a swift decline from the enjoyment of primitive liberty into impotent subjection to the rule of a narrow and selfish oligarchy, the usurpers of the people’s rights.⁴²⁸ The hypothesis of a constant degradation of municipal liberty from the thirteenth to the sixteenth centuries becomes invested with extraordinary interest, since all our judgments of the part that England has played in the history of free government must be coloured and determined by the ideas we accept as to the kind of civil freedom in which her people have really believed, the classes who have held to that faith, and the means by which they have pursued it. In the absence of some strong compulsion, forcing men to yield obedience to a “select” body, we question what outward influences or what inward apathy could have led the boroughs, at the moment when wealth and prosperity crowned their vast activity, thus unanimously to betray the privileges of their constitution and to deny their early faith; for in view of the whole drift of English history, and remembering how great a part the men of the towns played at this time in English life, it may well seem inconceivable that the mental and political emancipation of the sixteenth century should have been attained by a people who in the conduct of their own local affairs had already universally abandoned a noble tradition of ancient rights and idly consented to the tyranny of a mere plutocracy.

To find an example of the primitive form of municipal institutions, and how they were at the outset understood by the people, we naturally turn to the well-known story of Ipswich. On June 29, 1200, “the whole community of the borough” elected the two bailiffs by whom it was to be governed, and four coroners, whose business it was to keep the pleas of the crown and see that the bailiffs treat rich and poor justly; and on the same day by common counsel of the town it was ordered that there should be “twelve sworn capital portmen, just as there are in other boroughs in England, who are to have full power to govern and uphold the said borough with all its liberties, to render the judgments of the town, and to ordain and do all things necessary for the maintenance of its honour.” From this moment “the community” as it were unclothed itself of power to lay it on the shoulders of the bailiffs and coroners, who thereupon proceeded to act with all the authority with which they had been endued. They first appointed four approved and lawful men of each parish, who in their turn elected the twelve portmen. This being done, bailiffs, coroners, and portmen met – a little company of twelve, since bailiffs and coroners had all been appointed capital portmen too – to make ordinances about the collection of customs and the police officers by whom their decrees were to be carried out. In due time the whole community was called together to give their assent and consent to these ordinances; and they once more assembled to bestow a portion of their common land on the portmen in return for their labour in the common service, and to agree that all the laws and free customs of the town should be entered in a doomsday roll to be kept by the bailiffs.⁴²⁹

Here then we have the simplest form of early government – a council of twelve “worthy and sufficient men” to assist the mayor or bailiffs in the administration of the town, controlled by a referendum to the general body of burghers. The doors of the common house or the church where the councillors met stood open to all the freemen of the borough who might attend to hear discussions, even in cases where they were not allowed to join in them.⁴³⁰ And in the original idea of the free borough every public act was legally supposed to require the whole consent of the community from which theoretically at least all power was ultimately derived; so that whether a new distribution of the common fields was made, or soldiers were called out and a settlement agreed upon as to their payment, or guns bought or hired for the common house or the church tower; whether an inquiry was ordained about the “livelihood” of the inhabitants and the taxes to be imposed on them, or a new law proposed, or new freemen admitted to the city liberties, or municipal officers elected, it was officially assumed that the unanimous assent of the whole people had been given in their common assembly.

The privileges of the common assembly are perhaps best defined in the customs of Hereford, drawn up in 1383, but which doubtless embody customs of older times. There we learn that at the great meetings held at Michaelmas and Easter, to which the whole people were gathered for view of frankpledge (in other words at the court leet), “the pleas of the court being finished, the bailiff and steward, on the behalf of our lord the king and the commonalty, may command that all those which are not of the liberty should go out of the house and depart from the court; and then the bailiff and steward may take notice if there are any secrets or business which may concern the state of the city or the citizens thereof, and let them proceed therein as they ought to do.”⁴³¹ To these assemblies, according to the custom of Hereford, the people ought to come, and if there was anyone “which will complain of any trespasses committed, or any other thing touching the state of the city or themselves, they ought to speak the truth upon their own peril, not bringing with them any stranger … because we do not use that strangers shall come and implead amongst us and know the secrets of the court for divers dangers that thereby may ensue.”⁴³² In case of necessity the bailiff “by all kinds of rigour” might compel the discreeter citizens to come to the court and take their due part in its labours; and in Sandwich we know that if the burgesses summoned by bell or horn failed to appear, the “rigour” of the mayor might go as far as the sending of a serjeant to shut up all shops and work-rooms in the town, and thus compel the burghers’ attention to public instead of private business.

In the general assembly there was always present the most conspicuous, if the most unwieldy, symbol of the authority of the people, and of the supreme power which was theirs, not only by law, but by an ancient customary right which to the last remained independent of statute or charter. It is true that the common gathering of the people – without executive authority, without power to initiate laws, called together merely to give or refuse assent to the deeds of the government – would in itself have given the democracy very little hold on the town magistrates in the exercise of their office. The theory of the constitution, however, was that those who were mainly charged with making and administering the laws should be yearly chosen for their work by the people whom they were called to govern. The mayor who stood at the head of the administration was, according to the common formula which pointed back to the fundamental right and first intention of the institution, elected “by assent and consent of the whole community of the town,” and “in the place from of old accustomed;”⁴³³ and as each community was allowed to decide for itself how this “assent and consent” should be ascertained, there were perhaps towns where the practice followed the theory. Thus in Sandwich the unanimous consent of the whole town was given by public vote in a general assembly. On the first Monday in December at one o’clock of the day, the town serjeant sounded the common horn, and made his cry at the fourteen accustomed places, “Every man of twelve years or more go to St. Clement’s Church; there our commonalty hath need. Haste, haste!”; and when the people had gathered in the church, having first ordered the mayor to withdraw, they named him and three other natives of the town to be “put in election,” one of whom was then appointed by the whole assembly voting after their degree, jurats first and freemen afterwards.⁴³⁴

This practice was no doubt rare, but the theory that the mayor was the elected servant of the whole people, enshrined in the town book of customs, in ordinance and statute, never died out of the common speech and belief of the people. “We must obey our chief bailiff as one presenting the person of the king,” the burghers of Hereford say deferentially, and proceed to make him swear on assuming office “that he shall do all things belonging to his office by the counsel of his faithful citizens”; and to order that if he refused to answer complaints he should be proceeded against as for perjury; that if his accounts were not faithfully rendered all his goods should be seized; and that if “he shall be dishonest or proclaimed or suspected or convicted of any crime, he shall forthwith be put out of his place.”⁴³⁵ And as the mayor was the people’s servant, so in theory at least his election was supposed to be of their pure free-will. “From this time forth,” say the inhabitants of Wycombe in 1505, “no burgess nor foreigner make no labour, nor desire no man to speak before the day of election of the mayor for no singular desire, but every man to show their voices at their own mind, without trouble or unreasonable doing there in the time of their election.”⁴³⁶

The chosen head of the people was thus to the popular sentiment the type and symbol of their freedom, and a Bristol chronicler tells us how, the mayor being accused by an enemy of the king’s household, the townspeople followed after him as he was led to prison, lamenting and weeping “as sons for their natural father.”⁴³⁷ He was assisted by councillors also chosen to uphold the liberties of the borough; and the frequent use of elected juries in public business served still further to maintain the ancient tradition of rights vested in the people. In the manor courts of the country the jury made its way slowly and with difficulty, but in the town courts it seems to have taken complete hold very early, and to have been worked constantly and elaborately.⁴³⁸ The system was applied to all manner of local business. Not only did the Leet jury in some towns, as in Nottingham and Andover, occupy itself with a vast range of affairs connected with government and legislation; but it was a universal custom to appoint representatives of the community for any special purpose. Everywhere we have glimpses of bodies of jurors chosen to elect officers, to assess taxes, to make statements as to a broken bridge, to hold discussions about tallages or about disputed boundaries⁴³⁹– transient apparitions supposed, when their work is done, to dissolve into their constituent householders, and which appear and vanish again as the centuries pass, till the burghers, recognizing in them an admirable machinery for larger uses, fix or seek to fix them into permanent existence as town councils. To a people inheriting the high and inalienable prerogatives of a chartered borough, with the right of free meeting and free speech in their general assembly, presided over by a “natural father” of their own choosing, the jury system might seem to afford the final safeguard of liberty.

Such was the ideal of a self-governing community in early times – an ideal to which in later ages men looked back wistfully, as summing up the faith and practice of a golden age. Whenever the mayor was summoned to take his oath to the people on “the Black Book” of the city, instead of the Gospels;⁴⁴⁰ whenever according to custom the ancient ordinances of the town were yearly read before the people gathered together, the ideal of a noble liberty was proclaimed anew. The boast that the borough’s rights were founded and grounded upon franchises, liberties, and free ancient customs, and not upon common law,⁴⁴¹ remained a living faith; and a tradition of independence sanctioned and enjoined by authority was handed down from generation to generation, by men who believed themselves born into a birthright of freedom for which they need plead neither the law of nature nor the law of Rome,⁴⁴² since it was the honest handicraft of English kings and English lawyers, and paid for in hard cash out of their own grandfathers’ pockets.

But behind law and charter there lay always the great appeal to immemorial custom. In that dim time of which no memory is, a power yet more venerable and imposing than law itself had been the keeper of popular liberties; and to the last we may perhaps trace the obscure record of a double origin of rights in the two words by which the borough expressed its corporate existence – the “Citizens” or “Burgesses,” and the “Commonalty” or “Community.” By the common explanation of these terms they are supposed originally to have borne exactly the same meaning, and alike served to express the general body of freemen in the borough; but presently to have diverged in sense as the more important “citizens” gradually absorbed the management of public business, and appropriated to themselves the name of honour, while the lower classes were massed together as “the communitas,” so that this word at last came to be little more than a contemptuous nick-name given to the mob in the later days of oligarchic rule. In the town records, however, we find these two words used from first to last in a precise and formal manner which is most characteristic of the Middle Ages; each one having its own character and meaning, and neither of them invading the place of the other. As far back as the thirteenth century “the Burgesses” already appear as distinct from the commons at large, and use their title with an official and technical significance attached to the phraze which gives it a special value.⁴⁴³ The use of the word in charters and deeds seems then to denote the corporate body of citizens who had been legally endowed with certain privileges, whose association had been created by charter and was dissolved if the borough lost its franchise; and who in a vast mass of business, and especially in relations of the borough to the crown, were represented by the official body of the town which acted in their name, and especially assumed the title of “the Burgesses.”

But behind this corporate body lies the “communitas” – a term which has a far earlier origin and a far deeper meaning. Whatever may be the base use of the word which has crept into chronicles and common talk, in municipal deeds and ordinances it is a name of dignity and honour – an ancient title of nobility. It carries the mind far back to the primitive society of householders in the ville, bound by mutual ties and protected by customary rights, which had preceded the free borough, and by its discipline had created the advanced type of commonwealth which is discovered to us in Ipswich at the inauguration of its new career as a chartered town. We feel the story of new beginnings such as this to be the consummation of a long history; and even under the corporate life of the citizens recognized by law we may sometimes detect the persistent survival of the ancient community, which still emerges in the half light with its consecrated title, and the remnants of its old functions ever clinging to its shadowy form. For it seems that in municipal records the “community” or “commune” possibly appears as something which existed before the corporation in time,⁴⁴⁴ which might have its common seal separate from the mayor’s seal,⁴⁴⁵ which held property and exercised certain powers, and independent as it was of all charters, survived all loss of franchises conferred by royal grant alone. We seem to find it asserting its existence when the borough had been dismembered, and there was no longer any place for “the citizens.” It sends its appeals to the King over the heads of the official caste; when an intermunicipal treaty has to be drawn up the “communitas” usually appears as the contracting body, whose members are bound together in mutual responsibility; it claimed to hold common property of the borough under its own name and apparently by some other title than the burgesses; and by its very existence it maintained to the last the tradition of an ancient free community reaching back to a time of which no memory was, and endowed with prerogatives on which neither mayor nor council dared to lay their hands.

The privileges of the early community were no doubt quickly merged in the more liberal rights which were made sure to the borough by its charter; but there was one department, the management of their common lands, in which the existence of a separate power seems to exhibit itself beyond all doubt.⁴⁴⁶ Never did the commonalty abandon their right of control over the public estate. The division of strips of arable ground, the apportionment of pastures and closes, the letting of stalls or fields, the gathering in of rents for burgages or common property let on lease, these were things done by the act and in the name of the whole community, without any mention of “council” or “citizens”; and in one borough after another any tampering with the public estate by the governing class drove the whole body of inhabitants into the streets threatening revolution. In their claim to “have knowledge from year to year how the common ground is occupied and by whom, and if that it be not rented the commons to seize it into their hands, to that end that they may be remembered of their right, and to have profit and avail thereof” … and “to know verily what their rent cometh to,”⁴⁴⁷ the freemen of the fifteenth century carried on a tradition known in the boroughs two hundred years before, and in many instances their tenacious grip on the town lands was evidently one of the most important factors in the shaping of town politics.⁴⁴⁸

From the very beginning of municipal records, therefore, we find the town living as it were a double life – the one buttressed on either side by law and charter – the other sending roots deep down into the past, and drawing from primitive custom and tradition a sustenance which “Westminster law”⁴⁴⁹ could neither give nor take away; the one regularly expressed in the stately proceedings of “the Citizens” – the other finding a fitful and incoherent, but no less distinctive utterance in the doings of “the commonalty;” and the two, intimately allied and constantly hostile, persisting side by side through centuries of strained but honourable union. With these immemorial traditions of franchises, liberties, and free ancient customs, it followed that when burghers set up any plea for liberties old or new they imported no revolutionary note into their demands. It is hard to tell from what source they drew their faith in a freedom which they confessed to have been lost, which indeed neither they nor their fathers had known; but it seems that the conviction never failed of an ancient type and pattern of liberty which had been proved once for all by remote ancestors of the heroic age. Townsmen professed to claim nothing more than such privileges as were “according to our Red Book as we do think”; or that had been bestowed by a charter of the House of Alfred which had once compassed them about with liberty, though it was now, alas, casualiter amissa; or that dated back to the time when the grace of the Lady Godiva had broken the bonds of slavery. Just as Englishmen under the rule of the foreign kings looked back with desire to the good laws of the Confessor, so the burghers had their fiction, too, of the joy of their first estate as by law established, and turned over the rolls of their treasure chest and bought copies of Magna Charta, to discover anew the light of privilege that had once irradiated the whole commonalty. We have seen in the case of Exeter how this essential faith of the people survived, as it had preceded, their study of historical documents. As the spirit of independence and discussion awoke, the conflict that was presently to be waged in the domain of religion was oddly foreshadowed in the realm of municipal politics; when the common folk demanded that they should be allowed to return to the written law in its primitive and unadulterated purity; while the guardians of established order, aldermen and councillors and great people of “the clothing,” – resting on the theory of a living tradition and its secular “developement,” – appealed with no less confidence and insistence to the majesty of law as it appeared when interpreted by the custom of generations and expounded by the scarlet-robed officials who surrounded the mayor.

NOTE A

Mr. Maitland (Law Quarterly, January, 1893) gives a most interesting account of the customs of holding and dividing lands in various boroughs. On the whole he doubts whether the holding of land by burgesses subject to communal regulations is generally a very ancient arrangement. There seems, however, to be evidence for the antiquity of the holding of common property by the community; and it may be possible further to discover the existence of a permanent distinction between the property thus held by the community for the common use, and that held by the corporation for certain special purposes, such as payment of ferm, taxes, public servants, and the like – a distinction which rests on the different function which I have suggested in the case of those bodies.

The community of Ipswich apparently possessed land before 1200. (Gross, ii. 122, cap. xviii. 115.) For its common lands see also Hist. MSS. Com. ix. 234-7, 246. Lands were held by Wycombe (Ibid. v. 556-7). In Morpeth the “burgesses and community” make grants of land in the thirteenth century. (Ibid. vi. 527.) Andover in 1314 owned land managed by the community. (Gross, ii. 307, 326, 330.) Oxford (Boase, 47) and Chester might also be cited. Also Hythe (Hist. MSS. Com. iv. i. 432, 433), and Worcester (English Guilds, 386) and Preston (Preston Guild Records, xxiv.). The Nottingham Records mention the “land of the community” (ii. 269. See also 304-6). A grant of six acres of mosses was given to Liverpool in 1309 (Picton’s Municipal Records, i. 8, 12. For the results of holding this property see 11). Birmingham held land and rights of common (Survey of the Borough and Manor, xiv. 74, 102).

Romney held the Salt Marsh, the Gorse, the Horseho, and the Harpe pastures, the old bed of the Rother, the forelands and saltpits and warrens and gardens and marshlands, “the land of the commonalty” (Hist. MSS. Com. v. 536, 537, 539, 540-3).

Lydd (Ibid. v. 525, 531-2) seems to have held marshland common on the Ripe for at least four hundred sheep, and the boroughs of Dengemarsh and Orwellstow. Its ownership of the shore as against the claims of the crown was proved in the time of Elizabeth by evidence from “the face and vieu of the antienty of the town and church, and buryall of men cross-legged and such like monuments.” A seal given to the community by the archbishop at the beginning of their incorporation “long before the Conquest,” as rumour said, was used (as distinguished from the bailiff’s seal) as late as Elizabeth’s time for the selling or letting of lands by the town. (Ibid. v. 530-2.) The cases of Lydd and Morpeth illustrate the way in which the lord of a borough granted it the possession of land along with grants of local government and independence.

Colchester had 500 acres of Lammas lands besides Mile End Heath, etc. (Cutts’ Colchester, 142-4); and meadow still divided by boundary stones into strips. (Ibid. 67-8. See also for 1322 p. 142.)

Coventry owned common lands in the fourteenth century, of which there is no suggestion that they were newly acquired, and which belonged to the community and not to the corporation, and were distinct from lands or property acquired under the statute of mortmain and used for the payment of town officers, etc.

There were boroughs whose disputes about their property dated from the very beginning of their corporate existence. Southampton was already quarrelling about its common in the thirteenth century; and the Norwich citizens were engaged in a lawsuit in 1205 as to their rights of pasture on land for which rent was due to the Prior, but which the Prior could not legally either enclose or cultivate without a grant from the city. (Norwich Town Close Evidences, 4, 5. For the common lands see ibid. pp. 52-64.)

In some instances the burghers apparently did not profess to own the soil but only to hold an exclusive right to its use; and the furious excitement of the Norwich citizens (see p. 392) about a tribute of 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.