This power of granting exemptions from the restrictions of the Gilds seems to have been exercised in various towns in different degrees. In some it extended no further than the permitting “foreigners” to come to casual markets on payment of a toll upon each occasion. In others however it was more largely and generally used, merchants being allowed to be resident and to trade continually and regularly by payment of an annual fine.
In the latter case the effect was to create two distinct classes of traders within the town. The burgesses may be divided into two classes, those of them who were gildsmen and those who were not. We now see that the tradesmen dwelling in the towns may similarly be divided into two classes, (i) those who were free of the town or of one of the Gilds (or free both of the town and one of its Gilds), and (ii) those who were neither burgesses nor gildsmen. Thus another has been added to the classes into which the inhabitants of towns are usually divided. Mention of these unfree tradesmen is found in the records of many towns in England and Wales: in Norwich, Winchester, Lincoln, Leicester, Andover, Yarmouth, Canterbury, Henley-on-Thames, Malmesbury, Bury S. Edmunds, Totnes, Wigan, Chester, Shrewsbury, Worcester, Clun, Brecknock, Neath, Bishops’ Castle, and others.
The designation of these unfree tradesmen varies. At Andover they were known as custumarii (in opposition to the hansarii—the full members of the Gild). At Canterbury a similar body appears under the name of intrants. In Scotland and the north of England they were called stallingers. The most usual name for them is however censer, chencer, tenser, and variations of these.
Censer is apparently the name applied to one who pays a cense or cess. In Domesday mention is made of censarius—“Ibi sunt nunc 14 censarii habentes septem carucatas”—and the censarius is described as “qui terram ad censum annuum tenet.” The connection of the word is here purely territorial. It becomes more personal later in the history as is seen in the “Compotus Civitatis Wyntoniæ” of the third year of Edward I., which contains the following entry:—“Et de xliiijs. ijd. ob. de hominibus habitacionibus in civitate Wynton’ qui non sunt de libertate, qui dicuntur Censarii, per idem tempus.” Here the censarii are evidently considered in their capacity not as possible landowners, but solely as tradesmen. The census has changed from the land rent of Domesday to a distinctly personal payment.
A somewhat different class from the censarii of Winchester are mentioned in the statute 27 Henry VIII., cap. 7. From the preamble we can form a good idea of the lawlessness and confusion which prevailed on the borders of Wales at that period. It is related that in the Marches, where thick forests frequently fringe the roads, “certain unreasonable Customs and Exactions have been of long time unlawfully exacted and used, contrary both to the law of God and man, to the express wrong and great impoverishment of divers of the king’s true subjects.” The most crying of these evils was that the foresters were accustomed to plunder all passing along the roads (probably under the plea of taking toll), unless they bore “a Token delivered to them by the chief Foresters ... or else were yearly Tributors or Chensers.” The statute offers no explanation of these terms, but it is most likely they applied to persons paying an annual sum, either to the king or the Lords Marchers, of the nature of Chief Rent, especially as Cowell, in giving his explanation of the word chenser which will be noticed later, refers to this Act of Henry VIII. in support of his definition. If this be so we see that although the signification of the term had been extended so as to include distinctly personal and commercial tolls, it had, in some districts, also retained its original connection with land. This, censor, censer, gensor, chencer, and other variations, is the most usual form of the word, but occasionally it is found as tenser, tensor, tensur, and tensure. Tenser and tensor are used at Shrewsbury; at Worcester the same word appears as tensure or tensar (English Gilds, pp. 382, 394).
It is difficult to say whether or no tenser is a confusion of censer. Etymologically the words seem akin, cense being a tax or toll (cess), and tensare meaning to lay under toll or tribute. In the Iter of 1164 enquiry is directed to be made “de prisis et tenseriis omnium ballivorum domini regis ... et quare prisæ illæ captæ fuerint, et per quem” etc. Another derivation of tenser has been given. Owen and Blakeway (Vol. ii. p. 525) explain it to be a corruption of “tenancier,” and apparently intend to imply that these non-gildated traders were considered as holding directly of the king. This view receives some confirmation from Cowell’s definition of the “censure” and “censers” of Cornwall. He says (A Law Dictionary: or the Interpreter etc., ed. 1727) “Censure, or Custuma vocata censure, (from the Latin Census, which Hesychius expounds to be a kind of personal money, paid for every Poll) is, in divers Manors in Cornwall and Devon, the calling of all Resiants therein above the age of sixteen, to swear Fealty to the Lord, to pay ijd per Poll, and jd per an. ever after; as cert-money or Common Fine; and these thus sworn, are called Censers.” “Chensers,” he says again, “are such as pay Tribute or cense, Chief-rent or Quit-rent, for so the French censier signifies.” Whether or no we receive Owen and Blakeway’s derivation of the word from tenancier, even with the support of Cowell’s “censers” of Cornwall, we may press the latter authority into service in showing that the signification of censer and tenser, however different the two words might be in origin, became very similar in actual use.
The fines which the tensers or censers paid were imposed in the Court Leet. On the Court Leet Rolls at Shrewsbury are entered lists of names and fines headed “Nomina eorum qui merchandizant infra villam Salopie et Suburbia eiusdem, et non Burgenses, ergo sunt in misericordia.” In the first year of the reign of Henry IV. (A.D. 1399) it was ordered that these fines should be levied before the feast of S. Katharine (November 25) in each year. The Court Leet also decided the amount of the fines, but in later times when the select body of magnates had deprived the popular courts of so many of their powers and privileges we find that the apportioning of the tensers’ fines had also passed to the close corporation. In 1519 the corporation fixed the tolls at 6d. quarterly. The statute 35 Henry VIII., cap. 18, gave the control of the unfree tradesmen in Canterbury to the Mayor and Aldermen of the City. “No foreigner, not being free of the said City, shall buy or sell any Merchandize (saving Victual) to another foreigner; nor shall keep any shop nor use any mystery within the said City or the liberties thereof, without the License of the Mayor and Aldermen, or the major part of them, in writing under their Seal.” At Winchester in 1650 the rates were revised by the Mayor and Aldermen. The highest limit was fixed at £5, but the fees actually paid were generally sums varying from 6d. to 3/4 only (Gross, II. 264).
When such a privilege was exercised by a select body it was certain to give rise to abuses. Such was found to be the case in early years when the fines were imposed by an authority other than the general assembly of burgesses. In the county court held at Lincoln in 1272 it was alleged that the late Mayor had taken pledges from the burgesses of Grimsby unjustly under the plea of exacting gildwite (as the fine or toll was sometimes called). We learn that at Shrewsbury in 1449-50 “this yeare the Burgesses and Tenssaars ... did varye.” What the cause of contention was, or how the dispute was settled, we do not know, but it could hardly arise over anything other than the question concerning the tolls to be paid by the tensers.
In some towns special civic officials were appointed to supervise the tensers. At Chester the “leave-lookers” were among the most important of the borough officers. The word leve or leave has very much the same signification as the word cense or cess. It is the English “levy,” and was the fee or toll for permission to trade. The “leve-lookers” were the officials who exacted the levy or toll which unfree tradesmen were obliged to pay. At Chester they were “appointed annually by the Mayor for the purpose of collecting the duty of 2s. 6d. claimed by the corporation to be levied yearly upon all non-freemen who exercise any trade within the liberties of the City.” Their duties are described as having been “to give Licence and compound with any that came either to buy or sell within these liberties contrary to our grants;” “if any did dwell within the city that were not free, if they did ever buy or sell within the liberties, they did likewise compound with the Custos and Mercator [Custos Gilde Mercatorie] by the year ... the Leave-lookers do gather two pence halfpenny upon the pound, of all Wares sold by Forraigners within the City.” (Gross, II. 42.) The same name is found at Wigan, where the duty of the “gate-waiters or leave-lookers” was to see that all “foreigners” paid their fines for licence to reside and trade in the town. (Sinclair, Wigan, passim.)
It is not easy to define the exact status of the tensers. They were certainly considered as an inferior body of burgesses, and might comprise three classes. Firstly, those not willing or not able to enter one of the gilds; secondly, traders waiting to be admitted burgesses; thirdly ex-burgesses fallen from the higher state through misfortune.