This leads to another point. Corporations had their local courts, and some of them, by virtue of this fact, claimed exemption from the jurisdiction of the higher courts. Such was the case at Liverpool, and according to Sir. F. A. Picton there are instances on record in which they succeeded in establishing their claim. How far these local authorities were fit to be entrusted with the execution of justice may be estimated by some lively incidents which took place in the early days of October, 1565. One Thomas Johnson had been apprehended for picking purses. Apparently he underwent no regular trial, but was dealt with summarily, the programme being as follows: First, he was imprisoned several days and nights, and then he was nailed by the ear to a post at the flesh-shambles. As the next item, he was turned out naked from the middle upwards, and many boys, with withy rods, whipped him out of the town. He was then locked to a clog with an iron chain and horseblock until the Friday morning following, and finally abjured the town before the Mayor and Bailiffs, at the same time making restitution of 6s. 8d. to the wife of one Henry Myln. Thus, there was a rude efficacy in the process, but it might perhaps have been received as sufficient ground for a writ of certiorari if Johnson had again fallen into the hands of his tormentors.
It is certain that at times towns had to answer, through their officers, for alleged acts of illegality in their corporate capacity. Thus in 1292 one Adam—the reader will observe that the records do not give the actual names, Adam being chosen as beginning with the first letter of the alphabet—brought the Replegiare against B., &c., stating that B., &c., had tortiously taken his chattels in the High Street of the Town of Gloucester and conveyed them to their toll booth in the same town. B. and C., the bailiffs, defended the seizure, asserting that by the custom of the town of Gloucester only freemen might cut cloth there—strangers might sell cloth by the piece, but not cut it.
Adam was not a freeman of the town, but, in opposition to the custom, he had come and cut his cloth. As against this Adam produced a charter witnessing that the King had granted him the right of cutting cloth in the same way as other freemen, and, by virtue of the charter, he maintained that he had been seised from time whereof, &c. The bailiffs repudiated this claim. We do not learn what the judgment was in this case, but the phrase "other freemen" is suspicious. It suggests that the charter had been granted in ignorance of the custom of this particular town, not out of disrespect for it, since the tendency of all the evidence is to show that local autonomy and local privileges in such matters were treated with infinite care. It almost appears as if Adam had taken advantage of an ambiguity. As regards ordinary civil rights Adam was doubtless a freeman—otherwise he could not have brought this action—but he was not a freeman in the sense that he paid scot and lot in the town of Gloucester.
Such persons were often styled "foreigners," and therefore the plaintiff in this case would have occupied precisely the same position as "foreign" merchants who transgressed the customs of London. One of these was that they were not to attend any market or fair at a greater distance than three miles from the City, nor had Justices or Sheriff power to give them leave to do so. If a Sheriff caught any "foreign" merchant beyond those bounds, he was supposed to bring him back, and the money found on his person having been confiscated was shared between the Sheriff and the citizens. If, however, the citizens were alone responsible for the capture, the whole of the money went to them. Other rules were that merchants repairing to London for the sale of linen, cloth and wool might do business only on three days of the week (Mondays, Tuesdays, and Wednesdays). They were then, if anything remained to be sold, to pack up their goods and wait till the following week; and in no case were they to sell ad detail (retail).
A custom which we meet with at Dover and Reading, and was probably adopted by other towns, is one described in sundry ordinances de stachia, the latter being barbarous Latin for "stake." This was a device for recovering possession of a tenement after a specified time, when the tenant had fallen into arrears of rent, and consisted in the landlord erecting a stake in front of the house as a notification of his claim.
Crown and Town
Despite identity of usage at Dover and Reading on the subject of the stake, it would be pardonable to conclude that in those times of difficult communication there existed a great diversity of burghal laws, entailing considerable inconvenience and hardship, especially in the case of those engaged in trade. Since the adoption or growth of customs depended on the interests or sentiments of particular communities, diversity was, to some extent, inevitable, but the tendency to local independence—an independence tenaciously maintained and jealously guarded—was tempered by counter-tendencies. Thus it was not always to the interest of a town or city to stand in complete isolation from centres of a similar type, or possibly of a superior organization; and, in such instances, a smaller, weaker, less perfectly developed community might seek to improve its status or fortune by modelling its arrangements on those of a more advanced and more powerful neighbour, and in addition to and as a corollary of this, enter into a formal or informal alliance with it, in which the latter would hold the position of protector or patron.
In the Middle Ages there subsisted between the towns and the feudal aristocracy an antagonism sometimes silent and slumbering, sometimes wakened into fierce consciousness and expressing itself not only in hardy words, but in sanguinary deeds. On the Continent the towns were the hotbeds of revolution, and the commune, with its mayor as figure-head, signalized the triumph of the insurrectionary temper. This state of things was more marked on the Continent than in England, where the Barons led the assault on tyranny, and where, for his own purposes, the monarch fostered the prosperity of towns of his own planting. But Mr. J. H. Round, in his singularly able article on "The Origin of the Mayoralty of London," contributed to the "Archæological Journal," shows conclusively that this institution, now the ægis of all that is staid, stable, and respectable, was the offspring of the spirit of revolt which spread like a contagion from Italy to France, Germany, and the Low Countries, and thence to the Thames.
Dr. Gross's valuable contribution to the "Antiquary" (1885), treating of the affiliation of towns, is of a general character, and illustrated largely by continental examples; anyone, however, who wishes to grasp the full significance of mediæval relationships as between town and town, will be well advised in consulting that succinct account. Here we must confine ourselves to English experience, in which the same traits appear, only more faintly. Before proceeding to this inquiry it may not be amiss to advert briefly to another aspect of the subject. We have said above that, in England, the monarch inclined to favour certain towns for his own purposes, and such towns were naturally of the highest precedence. If we turn to Liverpool, we shall find that in 1206 it received a visit from King John, who the following year issued letters patent of which the following is a translation:
"John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to all his liegemen who would desire to have burgages at the town of Liverpool, greeting. Know ye that we have granted to all who may take burgages at Liverpool that they may have all the liberties and free customs in the town of Liverpool which any free borough on the sea has in our land; and therefore we command that securely, and in our peace, you may come to receive and occupy our burgages. And in testimony thereof we transmit to you these our letters patent. Witness, Simon de Pateshill, at Winchester, the 28th day of August in the ninth year of our reign."