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We know that in the memorable and brief document which is called William’s Charter, the laws and customs of Edward the Confessor were simply confirmed. Probably the City asked no more and wanted no more. Sixty years later the City, having prospered and grown and being wiser, wished for a definition of their laws and liberties, which was given them by Henry the First. I say sixty, and not thirty years, because, as has been already advanced, it seems probable that Henry’s Charter was granted in the year 1130, and not, as has been generally assumed, at the beginning of his reign. I now propose to take this Charter clause by clause.
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“Henry, by the grace of God, King of England, to the archbishop of Canterbury, and to the bishops and abbots, earls and barons, justices and sheriffs, and to all his faithful subjects of England, French and English, greeting.
Know ye that I have granted to my citizens of London, to hold Middlesex to farm for three hundred pounds, upon accompt to them and their heirs: so that the said citizens shall place as sheriff whom they will of themselves: and shall place whomsoever, or such a one as they will of themselves, for keeping of the pleas of the crown, and of the pleadings of the same, and none other shall be justice over the same men of London: and the citizens of London shall not plead without the walls of London for any plea. And be they free from scot and lot and danegeld, and of all murder: and none of them shall wage battle. And if any one of the citizens shall be impleaded concerning the pleas of the crown, the man of London shall discharge himself by his oath, which shall be adjudged within the City: and none shall lodge within the walls, neither of my household, nor any other, nor lodging delivered by force.
And all the men of London shall be quit and free, and all their goods, throughout England, and the ports of the sea, of and from all toll and passage and lestage, and all other customs: and the churches and barons and citizens shall and may peaceably and quietly have and hold their sokes with all their customs; so that the strangers that shall be lodged in the sokes shall give custom to none but to him to whom the soke appertains, or to his officer, whom he shall put there: And a man of London shall not be adjudged in amerciaments of money but of one hundred shillings (I speak of the pleas which appertain to money); and further there shall be no more miskenning in the hustings, nor in the folkmote, nor in any other pleas within the City: and in the hustings may sit once a week, that is to say, on Monday: And I will cause my citizens to have their lands, premises, bonds and debts, within the City and without: and I will do them right by the law of the City, of the lands of which they shall complain to me:
And if they shall take toll or custom of any citizen of London, the citizens of London in the City shall take of the borough or town, where toll or custom was so taken, so much as the man of London gave for toll, and as he received damage thereby; and all debtors, which do owe debts to the citizens of London, shall pay them in London, or else discharge themselves in London, that they owe none: but, if they will not pay the same, neither some to clear themselves that they owe none, the citizens of London, to whom the debts shall be due, may take their goods in the City of London, of the borough or town, or of the country wherein he remains who shall owe the debt: And the citizens of London may have their chaces to hunt, as well and fully as their ancestors have had, that is to say, in Chiltre, and in Middlesex and Surrey.
Witness the bishop of Winchester, and Robert son of Richier, and Hugh Bygot, and Alured of Toteneys, and William of Alba-spina and Hubert the King’s chamberlain, and William de Montfichet, and Hangulf de Teney, and John Bellet, and Robert son of Siward. At Westminster.”
The Charter of Henry the First must be considered both on account of the liberties and privileges it grants, and the light it throws upon the government of the City.
First—The Charter is addressed, not to the City of London with which it was concerned, but to “The Archbishop of Canterbury, and the Bishops and the Abbots, Earls and Barons, Justices and Sheriffs, and all his faithful subjects, French and English, of all England.”
Why was it not addressed to the City? Because as yet there was no City in the modern sense of the word. It might have been addressed to the Bishop and the Portreeve, as William’s Charter: it was addressed to the whole country, because the concessions made to London were understood to concern the whole country.
From a historical point of view, the constitution of London at this time is of very great importance, for the simple reason that, after the Norman Conquest, London, by a succession of fortunate events, almost wholly escaped the changes281 and innovations introduced by the Normans. In the midst of the feudal oppressions and exactions which weighed down the rest of the kingdom, London still preserved untouched and undisturbed the free and independent rights which had belonged to all the towns of the kingdom—there were not many—in Saxon times. In this respect London was not only the one surviving Saxon City, she contained also the very Ark of the English constitution itself.
Let us now return to Henry’s Charter, taking it point by point.
(1) He grants to the citizens the Farm of Middlesex for £300 yearly rent.
That is to say, the citizens of London were to have the right of collecting the King’s demesne revenues within the limits of the County of Middlesex. These revenues consisted of dues and tolls at markets, ports, and bridges, with fines and forfeitures accruing from the penal provisions of forest laws, and from the fines from the Courts of Justice. They were collected by the Sheriff or the Portreeve for the King; or they were farmed by the Sheriff, who paid a fixed sum for the whole, making his own profit or his own loss out of the difference between the sum collected and the sum paid. Now if the collection of dues was granted to the citizens, a corporate body was thereby informally created, though the people might not understand entirely what it meant.
This grant has given rise to some controversy. The views and arguments advanced by Mr. J. H. Round (Geoffrey de Mandeville, App. P, pp. 347 et seq.) appear to me to satisfy all the conditions of the problem and to meet all the difficulties. In what follows, therefore, I shall endeavour to explain the meaning of the concession and its bearing upon the early administration of the City in accordance with the views of this scholar and antiquary.
The important words of the Charter are these:—
“Sciatis me concessisse civibus meis London(iarum), tenendum Middlesex ad firmam pro ccc libris ad compotum, ipsis et hæredibus suis de me et hæredibus meis ita quod ipsi cives ponent vicecomitem qualem voluerint de se ipsis: et justitiarium qualem voluerint de se ipsis, ad custodiendum placita coronæ meæ et eadem placitanda, et nullus alius erit justitiarius super ipsos homines London(iarum).”
Does this grant mean the shrievalty of Middlesex apart from London or of Middlesex including London?282 “In the almost contemporary Pipe Roll (31 Hen. 1) it is called the Ferm of ‘London.’”
In the Charters granted to Geoffrey, Stephen gives him the “Shrievalties of London and Middlesex,” while the Empress gives him the “Shrievalty of London and Middlesex.” Again, “the Pipe Rolls of Henry the Second denote the same firma as that of ‘London,’ and also as that of ‘London and Middlesex.’” In the Roll of Richard the First there is the phrase “de veteri firma Comitat’ Lond’ et Middelsexa.” And Henry the Third grants to the citizens of London—
“Vicecomitatum Londoniæ et de Middelsexia, cum omnibus rebus et consuetudinibus quæ pertinent ad predictum Vicecomitatum, infra civitatem et extra per terras et aquas ... Reddendo inde annuatim ... trescentas libras sterlingorum blancorum.”
Round also maintains that the Royal Writs and Charters bear the same witness. When they are directed to the local authorities it is to those of London, or of “London and Middlesex,” or of “Middlesex.” The three are, for all purposes, used as equivalent terms. “There was never but one ferm and never but one shrievalty.”
I need not follow Round in his arguments against other opinions. The treatment of Middlesex, he says, including London, was exactly like that of other counties. The firma of Herts was £60; that of Essex £300; that of Middlesex, the very small shire, because it included London, and for no other reason, was £300 also.
In other counties the “reeve” took his title from the “shire.” In Middlesex, where the “port” was the most important part of the shire, the “reeve” took his name from the port. The Vicecomes of “London,” or “London and Middlesex,” was the successor of the Portreeve, or he was the Portreeve under another name. The Shirereeve and the Portreeve, then, are never mentioned together; writs are directed to a Portreeve, or to a Shirereeve, but never to both. William the Conqueror addresses, in Anglo-Saxon, the Portreeve; in Latin, the Vicecomes. Round sums up (p. 359):—
“This conclusion throws a new light on the Charter by which Henry I. granted to the citizens of London Middlesex (i.e. Middlesex inclusive of London) at Farm. Broadly speaking, the transaction in question may be regarded in this aspect. Instead of leasing the corpus comitatus to any one individual for a year, or for a term of years, the king leased it to the citizens as a body, leased it, moreover, in perpetuity, and at the low original firma of £300 a year. The change effected was simply that which was involved in placing the citizens, as a body, in the shoes of the Sheriff ‘of London and Middlesex.’”
We find Stephen and the Empress in turn bestowing upon Geoffrey de Mandeville the shrievalty of London and Middlesex. Therefore no regard at all was paid to Henry’s Charter by Stephen or the Empress.283
From all this it follows that if Henry’s Charter should be dated 1130, the citizens enjoyed the right of electing their Sheriffs and paying the moderate rent of £300 for five years only, out of the whole century. Let me once more quote Round (p. 372):—
“We see then that, in absolute contradiction of the received belief on the subject, the shrievalty was not in the hands of the citizens during the twelfth century (i.e. from ‘1101’), but was held by them for a few years only, about the close of the reign of Henry I. The fact that the sheriffs of London and Middlesex were, under Henry II. and Richard I., appointed throughout by the Crown, must compel our historians to reconsider the independent position they have assigned to the City at that period. The Crown, moreover, must have had an object in retaining this appointment in its own hands. We may find it, I think, in that jealousy of exceptional privilege or exemption which characterised the régime of Henry II. For, as I have shown, the charters to Geoffrey remind us that the ambition284 of the urban communities was analogous to that of the great feudatories, in so far as they both strove for exemption from official rule. It was precisely to this ambition that Henry II. was opposed; and thus, when he granted his charter to London, he wholly omitted two of his grandfather’s concessions, and narrowed down those that remained, that they might not be operative outside the actual walls of the City. When the shrievalty was restored by John to the citizens (1199), the concession had lost its chief importance through the triumph of the ‘communal’ principle. When that civic revolution had taken place which introduced the ‘communa’ with its mayor—a revolution to which Henry II. would never, writes the Chronicler, have submitted—when a Londoner was able to boast that he would have no king but his mayor, then had the sheriff’s position become but of secondary importance, subordinate, as it has remained ever since, to that of the mayor himself.”
As to the “independent position” of the City spoken of in this passage, perhaps that has been partly exaggerated. At the same time, when we consider (1) that London, as Stubbs states and Round agrees, was a bundle of communities, townships, parishes, and lordships, of which each had its own constitution; that (2) as Stubbs states and Round agrees, by Henry’s Charter, “no new incorporation is bestowed; the churches, the barons, the citizens retain their ancient customs”; (3) the really great concession made by Henry; and (4) the continuance of the form, if not the reality, of the Folkmote, we must acknowledge that the independence of the City was relatively great. And we must remember, further, that the Sheriff, or the Portreeve, was not the Mayor, nor was he the Justiciar; he was the financial officer of the King to look after the firma, and the taxes, fines, etc. The various jurisdictions and lordships had their own Courts; the City was not a corporate body; it had no head, unless it was the chief of that shadowy association, the Guild Merchant; it had no commune, and it had no Mayor.
(2) Henry gave them the right to appoint their own Justiciar.
Under the Saxon kings, criminal cases were tried in the Courts held by the Sheriff in his hundred, or the lord over his demesne. There were thus a very great number of Courts, the fines and forfeitures of which went to the owner of the soc or estate. William the Conqueror secured to himself the proceeds of these trials, together with the revenues arising from the new feudal tenures, by establishing the aula regis, the King’s Court, with the Chief Justiciar who sat in it. The aula regis went with the King wherever he went. Before long, persons were appointed to be itinerant justices, so that the aula regis included and suspended all older Courts. These new and uncertain jurisdictions were extremely unpopular. If, however, a city could obtain the privilege of electing its own Justiciar for its own cases, there would be some security of obtaining justice without delays—the Justiciar holding his office on good behaviour only; also that the ancient laws and customs would be observed; that there would be no temptation to impose arbitrary and grievous fines; that the numerous extortions connected with the new feudal tenure, possible where the royal revenues largely depended upon the amounts so raised, might in some measure be checked.
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The office of Justiciar of London presents many difficulties, partly because there is no evidence, with a few exceptions, of the existence of such an officer. The office, Round contends (Geoffrey de Mandeville, p. 373), “represents a middle term, a transitional stage, between the essentially local shirereeve and the central ‘justice’ of the King’s Court.” He shows that—
“The office sprang from ‘the differentiation of the sheriff and the justice,’ and represented, as it were, the localisation of the central judicial element. That is to say, the justitiarius for Essex, or Herts, or London and Middlesex, was a purely local officer, and yet exercised, within the limits of his bailiwick, all the authority of the king’s justice. So transient was this state of things that scarcely a trace of it remains. Yet Richard de Luci may have held the post, as we saw, for the county of Essex, and there is evidence that Norfolk had a justice of its own in the person of Ralf Passelewe. Now, in the case of London, the office was created by the Charter of Henry I., a charter which was granted (as I contend) towards the end of his reign, and which expired with the accession of Henry II. It is, therefore, in Stephen’s reign that we should expect to find it [the office of justiciar] still in existence; and it is precisely in that reign that we find the office eo nomine twice granted to the Earl of Essex, and twice mentioned as held by Gervase, otherwise Gervase of Cornhill.”
We find a good deal more.
In the second year of Stephen, the King was called upon to decide between the Priory of the Holy Trinity and the Constable of the Tower concerning certain lands on East Smithfield. Among those present in Court was one Andrew Buchuinte—“Bucca uncta”—an Italian by origin, with many other burgesses of London. The King called upon Andrew to speak in the name of the citizens as their Justiciar. This same Andrew is found as a witness at the investiture of the Priory with the Cnihten gild’s soke in 1125, and again as a witness in the agreement between Ramsey Abbey and Holy Trinity, between 1125 and 1130. During the existence of the office of Justiciar, the King addressed him by name, followed by the Sheriff and the citizens.
In 1339, Andrew had ceased to be Justiciar. He was succeeded by Osbert Octodenarius—“Huit deniers”—whom Garnier calls
This Osbert was Thomas à Becket’s kinsman and first employer.
In 1141 the Empress addresses a writ to Osbert Octodenarius, as the Justiciar, according to Round’s conclusion, his name being followed by that of the Sheriff.
Eleven years before this, in 1130, the name of Gervase appears as Justiciar; it is in the very year of Henry’s Charter. Round connects this Gervase with Gervase of Cornhill without any reasonable doubt.
Lastly, we find, as stated above, Geoffrey de Mandeville appointed Justiciar by Charter of the Empress. He calls himself “Comes Essex et Justiciarius Londoniæ” in a document of 1142-43. It is therefore certain that this great Earl counted it among his chief honours to be the Justiciar of London. Considering the history of286 this lord, we may well understand the kind of justice which he would mete out to the unfortunate citizens.
(3) He granted that they should not plead without the City walls.
This gave the parties to a civil case the same kind of protection as the preceding clause gave to defendants in a criminal case. The aula regis travelled with the King. Plaintiff, defendant, and witnesses had to travel about with the King also, until they could get their case heard. It was a grievance exactly like that of the present day, when more cases are set down for the day than can possibly be heard, and plaintiff, defendant, and witnesses, and solicitors have to attend, day after day, until their case comes on; those who come up from the country have to live in hotels at great cost; those who live in London have to neglect their business at great loss. It is strange that we should now be submitting to a system quite as iniquitous and, one would say, as intolerable, as that from which London was relieved early in the second quarter of the twelfth century.
(4) The citizens were to be “free from Scot and Lot and Danegeld and all Murder.”
Scot and Lot must be taken together as meaning the levy of taxes by any kind of authority for public purposes. Every citizen had, for civic purposes, to pay his Scot and Lot, i.e. his rates, according to his means. Danegeld was a tax of so much for every hide of land (a hide being probably one hundred acres). It was originally imposed for the purpose of resisting, expelling, or buying off the Danes. It was abolished in the reign of Henry the Second. In any case of murder the hundred in which the murder took place had to pay a fine. This, in a populous city, where violence was rife and murders were frequent, might become a burden of a very oppressive kind. Exemption, therefore, was a privilege of some importance.
(5) None of the citizens should be called upon to wage battle.
When we consider that the only justification of ordeal by battle was the theory that the Lord Himself would protect the right, we ask whether the Age of Faith had already passed away. It had not, but here and there were glimmerings of change. According to G. Norton, no man was ever compelled to fight in order to prove his innocence.
“If any man charged another with treason, murder, felony, or other capital offence, he was said to appeal him, and was termed an appellant; and the defendant, or party charged, was at liberty either to put himself upon his country for trial, or to defend himself by his body. If he chose the latter, the appellant was bound to meet him on an appointed day in marshalled lists, and the parties fought armed with sticks shod with horn. The party vanquished was adjudged to death, either as a false accuser or as guilty of the charge. If the defendant could maintain his ground until the stars appeared, the appellant was deemed vanquished; if the defendant called for quarter, or was slain, judgment of death was equally passed upon him.”—Historical Account of London, p. 360.
(6) A man might be allowed to “purge himself by oath.”
By this ancient method the accused appeared in Court accompanied by his287 friends, compurgators. He swore that he was innocent. His compurgators swore that they believed in his innocence. The number of compurgators was generally twelve.
(7) The citizens were allowed to refuse lodging to the King’s household.
This permission removed a fruitful cause of quarrel. It was intolerable that any man-at-arms might enter any house and demand lodging and entertainment in the King’s name. With the Tower in the east of London, and Baynard’s Castle in the west, and the King’s house a mile or so outside the City, there seems no reason why the King should have claimed this right.
(8) The citizens were to be free of toll, passage, and lestage.
Many people can remember the turnpike toll, the nuisance it was, and the trouble it gave; how, near great cities, roads were found out by which the toll could be evaded. Let them suppose a time when the turnpike toll was multiplied a hundredfold. There were tolls for markets, tolls of passage—fords and ferries, of lestage, a toll of so much for every last of leather exported, tolls of stallage, tolls of murage, tolls of wharfage, tolls of cranage, tolls through and tolls traverse (i.e. tolls for repair of road or street). Then imagine the relief of the London merchant travelling with his wares and his long train of loaded pack-horses from one market-town to another, and from fair to fair, when he was told that henceforth he should travel free and pay no toll. Why did the King grant this privilege, one of the largest and most beneficent in this Charter? Surely in wise recognition of the fact that the more free and unfettered trade was made, the more it would develop and increase, and make his kingdom rich and strong.
(9) No man was to be assessed beyond his means.
The penalty of a fine by way of punishment is at once deterrent and inconvenient. It does not degrade, like flogging; it does not make a man useless and costly, like imprisonment; it does not inflict public disgrace, like the pillory. At the same time, in the hands of a harsh magistrate, it may ruin a man to be fined above his power to pay. The strong feeling on the subject shown in this clause was also illustrated later on, when in Magna Charta it was enacted that a man might be assessed, but “so as not to deprive him of his land, or of his stock in husbandry or in trade.” To this day the ancient feeling against heavy fines survives in the unwillingness always shown by juries to award heavy damages.
(10) There should be no miskennings in the Courts, and the hustings should be held every Monday.
What were miskennings? Nobody knows. It is interpreted to mean that a man shall not unjustly prosecute another in any of the City Courts by deserting his first plea and substituting another. According to Norton,25 it is the same as mis288counting, and it means false pleading or mispleading. He goes on to show that the Normans brought with them considerable proficiency in jurisprudence, and a “mischievous dexterity in special pleading, by which the rights of suitors were often made to depend on the ingenuity of the countors (lawyers), rather than on the real merits of the case.”
I have considered this Charter clause by clause, because in it Henry seems to have given the citizens everything that they could ask or obtain by purchase. London was left, save in one respect, absolutely free. In fact, the citizens never did ask for more. The Charter was framed in order to allow the City to get rich without let or hindrance. One right the King reserved: that of taking their money for himself; and this right, there can be no doubt, was the reason why he surrendered all the rest; the reason why London was encouraged to grow so wealthy and so strong. It was a right, however, which was not felt to be a grievance. It was the very essence of things that in a mediæval kingdom the King should be free to tax his subjects. It will be observed that the rights conferred by the Charter of William are not recited here. Probably they were recognised as a matter of common usage, so that it was no longer necessary to repeat them.
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