In the time of Edward I. an ordinance was passed that "No Portuguese or Germans shall keep hostels, but that persons of those countries shall lodge with freemen of the city." It has been supposed that by "freemen" are intended native freemen, but this is doubtful, since cases occur of strangers and foreigners being admitted to the freedom for the very purpose of becoming hostelers and herbergeours. Even when this privilege was granted them, they were not suffered to compete on equal terms with the Englishman, being required to keep their houses "in the heart of the City," and rigidly excluded from the more profitable regions on the banks of the Thames.
The necessity of hostelers and herbergeours being freemen was due apparently to the survival of the old Saxon law of frank-pledge, which was still in force at the close of the reign of Edward III. No hosteler or herbergeour might entertain a stranger longer than a day and a night, unless he undertook to answer for his guest's behaviour, and he was left in no uncertainty as to the course of conduct he was expected to pursue towards the always undesirable alien. In many respects his position resembled that of a master of a workhouse rather than a speculative tradesman. Thus, at times when it was forbidden to carry arms in the City, it became his duty to take possession of his guests' arms and retain them until the strangers departed. If the latter did not comply with his demand, they were fined and imprisoned. At other times, when the regulations were not so severe, he had to tell his guests that they were not to carry arms after curfew rang, or go wandering about the streets of the City. Should it happen that urgent business compelled a guest to be absent from the hostel for a night, the keeper was obliged to warn him, with the best grace he might, that he must take care to be back as soon as possible.
Obviously there would have been much unfairness in making hostelers and herbergeours answer for the misdeeds of persons with whom they had only transient relations, if there had been no system for preventing the escape of dishonest and desperate characters who would be especially susceptible to the attractions of a great city and could not be held in check by the fatherly admonitions of an anxious host. Nor, again, was it to be supposed that the native population consisted wholly of highly moral and virtuous persons, incapable of such low crimes as burglary. To counteract the designs of these enemies of order, it was enacted temp. Edward I. that barriers and chains should be placed across the streets of the City and "more especially towards the water (Fleet River) near the Friars Preachers." From the same reign also dates an ordinance that the Aldermen and men of the respective wards should keep watch and ward on horseback at night, each Alderman keeping three horses for that object. Moreover, each of the City gates was placed in charge of a Sergeant-at-arms, who had his quarters over the gateway. It was the duty of this official to keep guard by night, and he was assisted in this task by a watchman (wayte), whose wages he had to pay out of his own salary. The regulations of the City required that each gate should be kept in the daytime by two men, well armed; and on certain occasions the Bedel received orders to summon the men of the ward to watch the gate armed. If they did not attend in person, they had to find substitutes at their own expense.
One of the grandest spectacles in Old London was that of the Marching Watch on St. John's Day. Comprised in it were about two thousand men, some mounted, others on foot. There were "demilances" riding on great horses; gunners with harquebuses and wheel-locks; archers in white coats, bearing bent bows and sheafs of arrows; pikemen in bright corslets; and bill-men with aprons of mail. There was likewise a cresset train numbering nearly two thousand men. Each cresset—flaming rope, soaked in pitch, in an iron frame held aloft on a shaft—was carried by one man and served by another. Very imposing were the Constables of the Watch, with their glittering armour and gold chains, each preceded by his minstrel and followed by his henchman, and with his cresset bearer by his side. Then came the City waits (musicians) and the morris dancers—Robin Hood, Maid Marian, and the rest; after whom appeared the Mayor, with his sword bearer, henchmen, footmen, and giants, followed by the Sheriffs. All the windows facing the street stood open, and there was no lack of distinguished spectators. To quote Nicols:
Kings, great peers, and many a noble dame,
Whose bright, pearl-glittering robes did mock the flame
Of the night's burning lights, did sit to see
How every senator, in his degree,
Adorn'd with shining gold and purple weeds,
And stately mounted on rich trapped steeds,
Their guard attending, through the streets did ride
Before their foot-bands, graced with glittering pride
Of rich gilt arms, whose glory did present
A sunshine to the eye, as if it meant
Amongst the cresset lights shot up on high
To chase dark night for ever from the sky.
By the Setting of the Watch on Midsummer Eve appears to have been meant the stationing of these armed guards in various parts of the City, which they were to secure from harm on that night only. In the thirty-first year of his reign Henry VIII. abolished the Marching Watch, and substituted for it a permanent watch maintained out of the funds which had previously gone to support the great annual pageant. For harnessed constables Londoners now had watchmen equipped with lanthorn and halberd, whose duty it was to call upon the sleeping citizens to hang out their lights, as required on dark wintry nights:
Lanthorn and a whole candle light.
Hang out your lights! Hear!
The next thing to be added was a bell. This institution was not popular with all; and Dekker, satirically expressing the feeling of the malcontents, defined the bell as "the child of darkness, a common night-walker, a man that had no man to wait upon him, but only a dog; one that was a disordered person, and at midnight would beat at men's doors, bidding them (in mere mockery) to look to their candles, when they themselves were in their dead sleeps."
Milton, on the other hand, makes grateful mention of the salutation as a lullaby and prophylactic:
Far from all resort of mirth,
Save the cricket on the hearth
Or the bellman's drowsy charm
To bless the doors from nightly harm.
Having said something of the means employed to prevent crime and arrest criminals, we must go on to refer to the punishments in vogue in the event of conviction. And here it may be observed that, among other interferences with commerce and the liberty of the subject, hostelers were not allowed to make either bread or beer. The former they were compelled by public enactment to buy from the baker, and the latter from the brewer or brewster (female brewer). But the City, if it defended what was esteemed the legitimate claim of the baker to a proper livelihood, was equally solicitous for the welfare of his customers, and woe betide the baker who sold bread deficient in weight or quality! For the first offence he was drawn on a hurdle from the Guildhall through the principal streets, which would be thronged with people and foul with traffic, and hanging from his neck was the guilty loaf. In the Record-room at the Guildhall is an Assisa Panis containing a pen-and-ink sketch of the ceremony, from which it appears that the unhappy tradesman wore neither shoes nor stockings and had his arms strapped to his sides. It seems also that the hurdle was drawn by two horses, which suggests that it was rattled along at an inconsiderate pace. For the second offence the baker was again conveyed on a hurdle "through the great streets of Chepe," and he further underwent an hour's exposure in the pillory, probably erected in Cheapside, with what consequences may be imagined. If he proved so incorrigible as to commit the offence a third time, the hurdle was again requisitioned, but, public patience being exhausted, his oven was demolished and he was forced to abjure his trade of baker in the City for ever. From the reign of Edward II. the penalty of the hurdle was no longer imposed for the first offence, the pillory being employed instead.
Exposure in the pillory was a favourite prescription, a kind of judicial panacea, to which all sorts of the morally infirm were introduced in turn. Mr. Riley has compiled a list of the sins atoned for by such involuntary penance, which, if we were guided by that alone, would testify to a shocking state of depravity in the Metropolis. Culling from this catalogue, we find that the pillory was considered a fitting reward for various impostures: pretending to be a holy hermit; pretending to be the son of the Earl of Ormond; pretending to be a physician; pretending to be the summoner of the Archbishop of Canterbury and so summoning the Prioress of Clerkenwell; pretending to be one of the Sheriff's sergeants and meeting the bakers of Stratford and arresting them with a view to fradulently extorting a fine, etc., etc. Scandalum magnatum also merited the pillory—a fact brought home to an idle gossip who occupied that uneasy elevation for "telling lies" about the famous Mayor, William Walworth. "Telling lies" of John Tremayne the Recorder was, in the same way, held to justify a public exhibition of the impudent and imprudent person. So, too, anti-social forestalling.
There were cases, however, in which this common method of advertising paltry offences was thought not to involve an adequate degree of notoriety and reprobation. We have already adduced one instance—that of the unscrupulous baker—in which it was attempted to evoke superior indignation. There were others. The natural destiny of impostors was, as we have seen, the pillory; among the qualifications for this shadow of crucifixion being "pretending to be a physician."
The civic fathers endeavoured to cope with the "social evil" by drenching all engaged in immoral traffic with nauseous doses of public ridicule. Thus, if a man were convicted of keeping a house of ill-fame, immediately his hair and beard were shaved off, save for a fringe (liste) on his head two inches in breadth. He was then conveyed to the pillory, accompanied by minstrels, and there he had to abide at the discretion of the Mayor and Aldermen. If he was found guilty of the offence a third time, he was compelled to abjure the City.
A woman convicted of being a common night-walker was committed to prison—probably the Tun, on Cornhill—and thence she was led to Aldgate with a hood of rayed cloth on her head and a white wand in her hand. Next she was escorted by musicians to the thewe (pillory)—in Cheap, probably—and there the character of her offence was proclaimed. Finally, she was taken through Cheap and Newgate to "Cokkeslane" without the walls, where she was required to dwell. If guilty a third time, her hair was cropped close, while she stood in the pillory, and she was marched to one of the gates and made to abjure the City for the remainder of her life. A procurer or procuress was also set in the thewe to the accompaniment of music, with a "distaf with towen"—i.e., a distaff dressed with flax—in his or her hand; and the transgressor was made to serve as a public spectacle for such time as the Mayor and Aldermen deemed fit. A priest detected in the company of a loose female, if she were single, was conveyed to the Tun, attended by musicians; and upon a third conviction he was forced to abjure the City for ever, the woman meanwhile being taken to one of the Sheriff's Counters and thence to the Tun. If his partner in guilt chanced to be married, both of them were conducted to one of the Counters, or to Newgate, and after that to the Guildhall; and in the event of conviction they were removed to Newgate, where their heads were shaved like those of thieves. This done, they were led with the inevitable music through Cheap, and lastly incarcerated in the Tun during the pleasure of the Mayor and Aldermen. The same procedure was observed if the male offender was a married layman.
Incidentally in the course of the narrative we have mentioned various instances of interference with business. We may conclude the chapter by citing a few more, and, as we have spoken of bakers, illustrations may be drawn from that trade. Every baker dwelling within the walls was obliged to have his own seal for impressing the loaves, and these seals were periodically inspected by the Alderman of the Ward, who kept a counterpart of the impression. A baker might not sell bread "before his oven" or in any secret place—only in the King's markets; and to every baker was assigned his market, to which the bread was carried in baskets hence called panniers. "Panyers Alley," in Newgate Street, was a famous stand for bakers' boys. Bread was sold also by female hucksters or regratresses, who received it from the bakers and delivered it from house to house. They were allowed to have thirteen batches for twelve, which is the origin of the phrase "baker's dozen," and the extra batch represented their legitimate profit; but a practice grew up whereby they obtained sixpence on Monday mornings as estrene, and threepence on Fridays as "curtasie money." This was disallowed by ordinance on pain of amercement, and bakers were admonished, in lieu of such payments, to increase the size of the loaf "to the profit of the public."
Blount's "Ancient Tenures," a meritorious seventeenth-century work which has been edited by Mr. W. C. Hazlitt, contains a description of the military and civil functions performed, and the privileges enjoyed, by the house of Fitzwalter, in connexion with the City of London. The latter stand in close relation to the subject with which we have just dealt, but it will be convenient to discuss first the obligations and then the "liberties" annexed to their observance. By way of preface we may recapitulate what Blount, who obtained his account from Dugdale, has recorded, and, having done so, we will proceed to investigate and amplify his version of what is beyond question an important chapter in the early administration of the city.
Confining ourselves to the facts as there stated, we find that the duty of providing for the safety of London devolved on the hereditary castellans, the Fitzwalters, Lords of Wodeham, who discharged the office of Chief Standard-bearer in fee for the castlery of Castle Baynard within the City. When war loomed on the horizon Fitzwalter, armed and astride his horse of service, and attended by twenty men-at-arms, who were mounted on horses harnessed with mail or iron, proceeded to the great door of the Minster of St. Paul with a banner of his arms displayed before him. There he was met by the Mayor, Sheriffs, and Aldermen, who came armed and afoot out of the Minster, the Mayor bearing his banner which was gules and charged with the image of St. Paul, or, the head, hands, and feet argent, and in the hands a sword also argent.
On perceiving their approach, Fitzwalter dismounted, saluted the Mayor as his comrade, and, addressing him, said: "Sir Mayor, I am come to do my service, which I owe to the City." The Mayor, Sheriffs, and Aldermen replied thereupon: "We allow you here, as our Standard-bearer of this City in fee, this banner of the City to carry and govern to your power, to the honour and profit of the City."
Fitzwalter then took the banner in his hand, and the Mayor and the Sheriffs, following him to the door, presented him with a horse of the value of £20, garnished with a saddle of his arms and covered with a sendal of the same. They also delivered to his chamberlain £20 sterling for his charges of that day. Holding the banner in his hand, Fitzwalter mounted the horse presented to him, and, as soon as he was seated, desired the Mayor that a marshal might be chosen straightway out of the host of London. This request having been complied with, he preferred another—namely, that the common signal might be sounded through the City, when it would be the duty of the commonalty to follow the Banner of St. Paul, borne before them by the Castellan, to Aldgate.
In the event of Fitzwalter marching out of the City, he chose from every ward two of the sagest inhabitants to superintend the defence of the City in his absence, and form a council of war, holding its sittings in the Priory of the Trinity adjoining Aldgate. It was supposed that the Army of London might be engaged from time to time in besieging towns or castles; and should a siege exceed a year in duration, the utmost amount Fitzwalter could claim as remuneration was one hundred shillings. If such were the duties of the Castellan in time of war, he had rights hardly less important in time of peace. Here it should be premised that under Norman rule the King's justice or the King's peace was assured by the grant of soke and soken—the former being the power of hearing and determining causes and levying fines and forfeitures, and the latter the area within which soke and other privileges were exercised. In the City of London the Fitzwalters had a soken extending from the wall of the Canonry of St. Paul as a man went down by the "bracine" or brewhouse of St. Paul to the Thames; and thence to the side of the mill that stood on the water running down by the Fleet Bridge, by London Walls, round by the Friars Preachers to Ludgate, and by the back of the friary to the corner of the wall of the said Canons of St. Paul. It embraced, in fact, the whole parish of the Church of St. Andrew, which was in their gift.
Appendant to this soken were various rights and privileges. Fitzwalter might choose from the sokemanry, or inhabitants of the soken, a Sokeman par excellence; and if any of the sokemanry was impleaded in the Guildhall on any matter not touching the body of the Mayor or any of the Sheriffs for the time being, the Sokeman might demand the court of Fitzwalter. But while the Mayor and Citizens had to allow him to hold his court, his sentence was expected to coincide with that of the Guildhall. He exercised, indeed, a co-ordinate rather than an appellate jurisdiction, as may be shown in the following manner:
Suppose that a thief had been taken in the soken, stocks and a prison were in readiness for him; and he was thence carried before the Mayor to receive his sentence, but not until he had been conveyed to Fitzwalter's court and within his franchise. The nature of the sentence, to which the latter's assent was required, varied with the gravity of the offence. If the person were condemned for simple larceny, he was conducted to the Elms, near Smithfield—the usual place of execution before Tyburn was adopted for the purpose—and there "suffered his judgment," i.e., was hanged like other common thieves. If, on the other hand, the theft was associated with treason, the crime, it was considered, called for more exemplary punishment, and the felon was bound to a pillar in the Thames at Wood-wharf, to which watermen fastened their boats or barges, there to remain during two successive floods and ebbs of the tide.
So important a franchise in the City was in itself a high honour, and it carried other distinctions with it. The Fitzwalter of the day, when the Mayor was minded to hold a Great Council, was invited to attend, and be a member of it; and on his arrival, the Mayor or his deputy was required to rise and appoint him a place by his side. During the time he was at the hustings, all judgments were pronounced by his mouth, and such waifs as might accrue whilst he was there were presented by him to the bailiffs of the City or to whomsoever he pleased, by the advice of the Mayor.
Such is the story as we find it in the pages of Blount, in which it appears apropos of nothing—merely as an instance of curious and picturesque usages which had long ceased to exist. Blount, as we have seen, gives as his authority Sir William Dugdale, who alludes to the subject in his "Extinct Baronage of England," and Dugdale seems to have owed the information to the "Collection of Glover, Somerset Herald." Stow also knew of the "services and franchises," and it is thought that he had seen a copy of them in the "Liber Custumarum." The latter is accessible in print in Riley's edition of the "Munimenta Gildhallæ Londiniensis," and corresponds in all or most respects with what we have found in Blount.
So much for the antecedents of the story.
The Fitzwalters are said to have come over with the Conqueror, and to have been invested with the soke before mentioned by his favour and in requital of their services. That the family had at one time extraordinary rights in the City of London is shown by the evidence of the Patent Rolls, from which we learn that in the third year of Edward I. (1275) Robert Fitzwalter received licence from the Crown to transfer Baynard Castle, "adjoining the wall of the City, with all walls and fosses thereunto pertaining, as also the Tourelle called Montfichet," to Robert Kilwardley, Archbishop of Canterbury, for the purpose of founding the House and Church of the Friars Preachers—"provided always that by reason of this grant nothing shall be extinguished to him and his heirs which to his Barony did belong, but that whatsoever relating thereto, as well in rents, landing of vessels, and other franchises and privileges in the City of London or elsewhere, without diminution unto him the said Robert, or to that Barony, have recently belonged, shall henceforth be reserved."
This Robert was the son of Walter Fitzwalter and grandson of his more illustrious namesake, the Marshal of the Army of God and Captain of the Barons in the days of King John; and it may be noted in passing that either to the last-named or his son Walter, as lord of Dunmow in Essex, has been ascribed the institution of the Flitch. Thirty years after the sale of his patrimonial estate Robert Fitzwalter, in 1303, recited and claimed his services "and franchises" before Sir John le Blount, Warden of the City; and as late as 1321, as shown by the "Placita de Quo Warranto," the Justiciars of the Iter were inquiring into the claims of Fitzwalter in relation to the City of London. One of his rights he was prepared to waive—namely, that of drowning traitors at Wood-wharf. The Justiciars refused to take cognizance of the matter, but the Fitzwalters did not soon or easily abandon their demands, which were renewed by John, grandson of Robert Fitzwalter, in 1347. On the feast of St. Matthew in that year it was announced to the Mayor, Aldermen, and Citizens in Common Council "that John, Lord Fitzwalter, claims to have franchises in the Ward of Castle Baynard wholly repugnant to the liberties of the City, and to the prejudice of the estate of his lordship the King, and of the liberties of the City aforesaid. For now of late he has made stocks for imprisonment of persons in the said Ward and [has claimed] to make deliverance of persons imprisoned." Thereupon it was agreed "that the said John had no franchise within the liberties of the City aforesaid, nor was he in future to intermeddle with any pleas holden in the Guildhall of London or with any matters touching the liberties of the City."
Probably this resolution served as a quietus of the efforts of the Fitzwalters to establish or re-establish the right of jurisdiction over the citizens of London. It seems likely that these were endeavours to reinstitute ancient privileges rather than to create new. The document in the "Liber Custumarum," used in support of the claims of Robert Fitzwalter in 1303, contains a reference to the Friars Preachers, which would lead to the supposition that it was drawn up at the time; but Riley believes that it was remodelled, perhaps only to the extent of this interpolation, and that otherwise it was a copy of an earlier pronouncement pertaining to the days of the first Robert Fitzwalter, who would have been the actual owner of Baynard Castle.
This has an important bearing on the reality of the dual or reciprocal obligations, which were apparently embodied in a compact between the Mayor and Citizens of London on the one part, and their military chief or champion on the other. Thus it will be necessary to glance at the personal history of the elder Robert Fitzwalter, on which something has been already said. According to the Chronicle of Dunmow and other early records, the principal reason of Fitzwalter's insatiable hatred of King John was that the monarch had attempted the chastity of Matilda, Robert's fair daughter, who, by the way, is identified by Anthony Munday and other Elizabethan playwrights with the Maid Marian of Robin Hood. Dugdale is disposed to accept this story; but, granting that it is true, it hardly suffices to explain Fitzwalter's pre-eminence in the forces of the rebellious Barons. This seems to have been due to his influence with the wealthy citizens of London, who were among the staunchest opponents of the astute and tyrannous sovereign. On May 24, 1215—the Sunday next before Ascension Day, when many of the inhabitants would have been in attendance on Divine service—the army of the Barons, marching from Ware, were permitted to enter the City, unopposed, through the gate of Aldgate. Fitzwalter's position as Castellan, and his connexion with the Priory of Holy Trinity at Aldgate, furnish an easy and natural explanation of this proceeding. In 1217 the citizens of London raised a force of 20,000 men for the assistance of the Dauphin of France against King Henry and his guardian William Marshal, Earl of Pembroke, and Robert Fitzwalter acted as commander. He died in 1234, and was buried before the high altar in the church of Dunmow Priory.
In the description of the banner delivered to Fitzwalter by the Mayor we have the earliest mention of the assumption of any sort of arms by the City of London. It may be noted that the sword is stated by some heraldic authorities to have been argent, whilst by others this detail is omitted. In Saxon times York also had its standard-bearer. The "Great Gate" of St. Paul's was probably the Northern Gate.
Still keeping to the military aspects of the subject—at the commencement of the fourteenth century there was at the west end of St. Paul's Cathedral a waste piece of ground, which was the property of the City; and here it was the custom for the citizens to make a muster of arms under the command or inspection of the lord of Baynard Castle for the defence of the City, "so often as the said citizens might see fit." Moreover, at the east end of the church lay a smaller plot, on which the citizens held folkmotes and made parade of arms for preserving the King's peace. This was perhaps a relic of the Anglo-Saxon institution of Inward, which is mentioned in Domesday, and was designed for the maintenance of order within the walls. Adjacent to this smaller plot was the clochier or campanile of St. Paul's, which was a distinct building from the cathedral proper, and contained the great bell, known as the motbelle, by which the citizens were summoned to the Folkmote or an assembly of arms on occasions "when within the respective bailiwicks of the Aldermen anything unexpected, doubtful, or disastrous against the realm, or the royal crown, chanced suddenly to take place." When the King required the services of the Host of London against foreign enemies or outside the confines of the City, it is natural to suppose that the muster was held on the larger of the two spaces.
The musters and parades of the Host probably lapsed when, by the sale of Baynard Castle, the Fitzwalters ceased to be de facto Castellans of London. This is a fair inference from the circumstance that in 1321 the citizens complained before the Justiciars Itinerant that the Dean and Chapter had unlawfully taken possession of the vacant spaces, enclosed them with walls, and even erected dwelling-houses on the eastern plot. The blazonry of the Banner of St. Paul, which would have been no longer used, was so far forgotten that eighty or a hundred years later nothing remained but the sword, which was supposed to stand for the dagger of that militant mayor, Sir William Walworth, who is said to have terminated therewith the lawlessness of Wat Tyler.
Were we obliged to sum up the difference between town and country in one word, that word would be "trade." In mediæval, far more than in modern, times country places had their fairs, but London, with its markets open Sundays and week-days, enjoyed all the benefits of a perpetual fair; from which strangers and foreigners, though under some disadvantages compared with freemen, were by no means excluded.
One of the great principles regulating commercial transactions in the Middle Ages and enforced by law and custom was publicity. Bakers, as we have seen, might not sell bread "before their oven," and to this we may add that fishmongers might not take fish into their shops—they had to expose it for sale outside. The object of such arrangements was to ensure fair dealing all round. As Justice is usually figured with a pair of scales, it may be taken for granted that the important question of due weight did not escape the attention of legislators, and it attained considerable prominence in 31 Edward I. (A.D. 1303), in which year the statute De Nova Custuma was promulgated. This statute provided that in every market town and fair throughout the Kingdom there was to be erected in some fixed spot the Royal Beam or Balance, and that both vendor and purchaser were to view the scale before weighing, to see that it was empty. Prior to being used, the arms of the balance had to be exactly equal, and when the tronator was weighing, he had to remove his hands as soon as they were level. It may be observed that the citizens of London refused to accept the "New Custom," stating that it had always been the custom for all buyers of wares, whether archbishops, bishops, earls, barons, or other persons, to have the draught of the beam; but we have learnt by this time that a local custom was not allowed to override the law of the land, and thus it is most improbable that this protest, though it led to the issuing of two Royal mandates, was long persisted in.
But the "New Custom" statute contained another provision—namely, when once a bargain had been ratified, neither of the contracting parties was to recede from it. If they, or either of them, took this course after the weighing process, it would be bringing the Royal Beam into contempt, and such profanation could not be contemplated; but the sacredness of contract had been affirmed by local ordinances or customs before this measure was enacted. A contract was held to be good when God's Penny, or earnest money, had been given and received by the principals. As God's Penny, or that which it symbolized, was the basis of all business, and business was the life of towns, the custom appears worthy of notice in some detail.
The arles, or earnest money, was given to a servant on hiring, as shown by an entry in the Shuttleworth Accounts (printed by the Chetham Society) for September, 1590: "4d., earnest money, was paid unto a cook to serve at the next Assizes." Similarly, in February, 1592: "To John Hay upon earnest to serve for a year as butler and brewster at Smithhills, 4d." Previous entries state that 12d. was paid to John Horebyn "upon erlynges" of a bargain for ditching, and that "3d. was given of erles unto the gardener for his hiring another year."
Mr. Gerald P. Gordon, to whom we are indebted for much valuable information, quotes as an analogous instance the gift of the "King's shilling" to a recruit on enlistment. As regards mercantile transactions he considers that the usage "was not so much a partial or symbolic payment of the price as a distinct payment for the seller's forbearance to deliver to somebody else." This view of the case appears to us extremely doubtful, as it would render the contract binding on one of the parties only—namely, the buyer; whereas Bracton and "Fleta" aver that if the seller default he must pay double the earnest. Mr. Gordon subsequently adduces a Preston decree, that "if a buyer should buy any goods in large or small quantities and give earnest, and he who agreed to sell should rue the bargain, he shall pay the double asked. But if the buyer fingers the goods, he must either take them or pay the seller 5s." We infer, therefore, from his evidence alone, that the payment of earnest was essentially symbolical and served all the purpose of a written contract.
That the act was regarded as expressive of mutual understanding is shown by a Northampton ordinance of about the year 1260: "That if anyone put a penny or any merchandise before the seller be agreed to the bargain, he shall forfeit the penny to the use of the bailiffs." The importance of the due-fulfilment of the contract was recognized by the imposition of a penalty on anyone who delivered the earnest and afterwards declined to make good the bargain. At Waterford about 1300 it was enacted that "whoever gives God's silver and repents, be he who he may, shall pay 10s."; and at Cork in 1614 an ordinance was passed, disfranchising the defaulter of his councillorship and freedom and compelling him to pay a fine of £20.
In the early part of the sixteenth century God's Penny was paid at Waterford on ships' freights; and at Youghal, in 1611, it was paid into court for the right of buying wines on board ship. As may have been noticed in previous examples, the arles did not necessarily consist of a penny. An ordinance of Berwick of the year 1249 declared: "If anyone buy herring or other aforesaid goods and give God's penny or other silver in earnest, he shall pay the merchant from whom he bought the said goods according to the bargain made." But a penny sufficed. Noyes, the Attorney-General of Charles I., is emphatic on this point. "If," he says in his "Maxims," "the bargain be that you shall give me two pounds for my horse, and you do give me one penny in earnest, which I do accept, this is a perfect bargain." The impression left upon one's mind is that the most important contracts as well as the most trifling dealings were settled by the exchange of God's Penny or some equivalent ceremony.
Now, it is evident on the face of it that the transactions must have taken place in the presence of witnesses; otherwise a man who had made an awkward bargain would have found it easy to escape from his dilemma by denying that he had either given or received the penny. In early times, before writing became a common accomplishment, and when, as now, men might be eager to clinch a bargain without loss of time, it was desirable in the interests of common honesty that such agreements should be made in the light of day and in the face of the world. This custom appears to have continued to a late date. Thus, if O'Keeffe the dramatist may be believed, there was in the centre of Limerick Exchange a pillar with a circular plate of copper, about three feet in diameter, called "the nail," on which the earnest of all Stock Exchange bargains had to be paid. At Bristol there are said to have been four pillars called "the nails" in front of the Exchange, the purpose being the same; and similarly, at Liverpool, bargains were completed on a plate of copper, also called "the nail," and standing in front of the Exchange. It is probable, however, as Mr. Gordon observes, that, the phrase "payment on the nail" did not originate from circumstances like these, but was an adaptation of the Latin super unguem or the French sur l'ongle, by which is meant "paying down into a man's hand." It might thus stand for a bargain the opposite of that of which God's Penny was the usual symbol. It appears to have been the custom at Ipswich in 1291 for traders not to make writings or tallies if two witnesses were in attendance to prove that the undertaking was to pay on a near day ou freschement sur le ungle. The notion of immediate payment is still conveyed by the expression, and would cover the entire amount, not merely God's Penny. However, that payment was undoubtedly made "on the nail;" hence some confusion may have arisen, especially where plates and pillars were provided for the deposit of earnest money.
In all this there is much to remind us of the Roman mancipatio, a method of sale which demanded the presence of five witnesses, and in which the buyer took possession of his new purchase by holding in his hand a bronze ingot and repeating the formula: "This man [i.e., a slave] I claim as belonging to me by right quiritary; and be he [or he is] purchased to me by this ingot and this scale of bronze [i.e., that in which the purchase money had been weighed out]."
We have expressed the opinion that the payment of God's Penny was a symbolical act, and this opinion is supported by the fact that there were in mediæval England hand-clasp bargains. Marbeck, a musician and theologian of the sixteenth century, remarks: "As ye see: after all bargaines there is a signe thereof made, eyther clapping of hands or giving earnest." Among the provisions of the Grimsby charter of 1259 is one to the effect that only buyers of the said town might make bargains by hand-clasp for herring or other fish or for corn. To this was added that hand-clasp bargains were to be valid, unless the merchandise, which was the subject of such a bargain, should be inferior to that agreed upon—a question which has to be determined by men worthy of credit. In Shakespeare's "Henry V." we meet with the saying: "Give me your answer, i' faith, do; and so clasp hands and a bargain; how say you, lady?" This recalls that the joining of hands in the marriage ceremony is in the highest degree symbolical; and it is, of course, the common token of faith in friendship. Judging by these parallels, the payment of God's Penny was not less symbolical than its equivalent, the clapping or clasping of hands.
In the course of the preceding chapter reference was made to the illiteracy of our ancestors in its bearing upon trade usages. In the present chapter we propose to supplement this allusion by drawing attention to a feature of commercial life which was certainly influenced by, if not actually due to, the prevailing lack of education. The combination "Merchants' Marks" is so familiar as to suggest that such marks were used by merchants alone. This was by no means the case. Farmers also had their marks. "When a yeoman," says Mr. Williams, "affixed a mark to a deed, he drew a signum by which his land, cattle, etc., were identified"; and in Sussex, we are informed, the post-mortem inquisitions from the time of Henry VII. to that of Charles II. exhibit a large number of yeomen's marks—"other than crosses"—which were employed as signatures. Masons' and printers' marks are further varieties of the same mode of identification.
All these are distinctively trade uses, but the astonishing thing is that, in Germany at any rate, marks were affixed, in conjunction with regular signatures, by ecclesiastical dignitaries and secular nobles, probably as an additional guarantee. They were also used on shields, and in England were frequently impaled with the owners' arms.
Marks, then, were in no sense the exclusive characteristic of the merchant class; and yet, owing to the fact that these devices were necessarily more used by traders, they may be considered on the whole as belonging to their domain. As we have seen, every baker in the City was obliged to stamp his loaves with his own proper mark; and in other branches of commerce men would value their mark as a means of advertisement. As persons engaged in commerce were commonly debarred from the privilege of armorial bearings, marks were freely employed not only in relation to special callings, but also for ornamentation or commemoration in any and every sphere in which merchants desired to leave the impress of their personality and interest. They were to be found on the fronts of houses, over the fireplace in halls, on seals, on sepulchral slabs and monumental brasses, and on painted windows. In his description of a Dominican convent—printed in full in Prof. Skeat's "Specimens of English Literature" (a.d. 1394-1579)—the author of "Peres the Ploughman's Crede" speaks as follows:
Than I munt me forth the minster to knowen
And awayted a wone wonderly well y-built,
With arches on every hall & belliche [beautifully] y-carven
With crochets on corners, with knots of gold,
Wide windows y-wrought, y-written full thick,
Shyning with shapen shields to shewen about,
With marks of merchants y-meddled between,
Mo than twenty and two, twice y-numbered;
There is none herald that hath half such a roll,
Right as a ragman hath reckoned them new.
Another circumstance has to be noted—namely, that merchants' marks were entirely distinct from shop signs, such as that of the Golden Fleece, which, though serving the same purpose of aiding or enlightening the unlearned, were more pictorial in character. Dr. Barrington, in his "Lectures on Heraldry," defines merchants' marks as "various fanciful forms, distorted representations of initials of names," which, he says, were "placed upon articles of merchandise, because armorial ensigns could not have been so placed without debasement."
To those merchants who had no arms—and they were doubtless the vast majority—the mark served as a substitute, and was regarded with the same feelings of pride and attachment as the ensigns of the nobility and gentry. But unquestionably its chief value was strictly commercial, as is proved by an instance of litigation in the twenty-second year of Queen Elizabeth's reign, which is thus narrated by Mr. Justice Doddridge: "An action was brought upon the case in common pleas by a clothier, that, whereas he had gained reputation by the making of his cloth, by reason whereof he had great utterance to his great benefit and profit, and that he used to set his mark to his cloth, another clothier, perceiving it, used the same mark to his ill-made cloth on purpose to deceive him, and it was resolved that an action did lie."
Merchants' marks appear to have been especially common in towns depending on the manufacture of wool. It so happens that one of those towns was that in the immediate neighbourhood of which these chapters were written; and, agreeably to what has been stated, the Church of St. Peter, Tiverton, which owed much to the munificence of the old merchants, carries a number of such marks. East Anglia is particularly rich in such marks, as is shown by Mr. W. C. Ewing's papers in the "Transactions of the Norfolk and Norwich Archæological Society" (vol. iii.). Mr. Dawson Turner, in his Historical Introduction to Colman's "Engravings of Sepulchral Brasses in Norfolk and Suffolk," after stating that merchants or burgesses were probably the only classes except the military that were represented on monuments, goes on to observe that "these are chiefly to be found in borough towns or the parochial churches of large commercial counties where the woollen manufacture flourished." And, as we have pointed out, the merchant's mark very often accompanied him to his grave.
We have now reached the borderland, where from urban customs we pass to those of the country; and it will form a natural transition if we conclude the chapter and the section with some remarks on the rural use of marks, which is still common in regard to stock. In this Connexion they are generally styled yeomen's marks; and, from the circumstances of the case, it seems certain that the adoption of such symbols took place on the farm long before they were employed on the mart. The point has been raised whether so-called "pictorial marks" are, and have always been, nothing more than rude drawings of familiar objects. Mr. J. H. Scott has dealt with this problem in an examination of Homeyer's theory that marks were originally runic forms, and he expresses the opinion that, assuming this to be true of certain types of marks, "they lost their character at an early period and were regarded merely as signs or symbols not as letters of an alphabet." As regards "pictorial marks," he holds that the similarity to various objects is accidental. If so, this is rather in favour of Homeyer's derivation of marks from runes, the forms in some cases being identical. Moreover, as Homeyer notes, "signa" for identifying cattle, horses, trees, clothes, and as boundary marks, are referred to in the Lex Salica, the Edictum Rotharis, and the Anglo-Saxon laws, so that we have here something like a pedigree of the custom.
Urban customs appear of more interest and importance than rural usages by reason of the greater complexity of relations implied by the interdependence of members of a populous community. In the country the organization of society is more simple, and the life of the fields, if more tranquil, must always be less vivid, and, if the term may be allowed, less conscious than that of the town. Nothing, however, is more certain than that the formation of towns came after and was in most instances the progeny of rural conditions. It is an amazing circumstance that not until the middle of the last century did the great city of Manchester emancipate itself from the last traces of feudal subjection by the purchase of manorial and market rights. Just as the word pecunia is derived from pecus, just as the merchant's mark is in all likelihood descended from that of the yeoman, even so in many municipal appointments there is strong evidence of the once all-prevalent agricultural element.
If we turn to London, we shall discover that its administration was conducted, to a large extent, on country and manorial lines. The necessary result was chaos. As Mr. J. H. Round observes, "The genius of the Anglo-Saxon system was ill adapted, or rather wholly unsuitable, to urban life ... while of unconquerable persistence and strength in small manageable rural communities, it was bound to, and did, break down when applied to large and growing towns, whose life lay not in agriculture, but in trade. In a parish, in a hundred, the Englishman was at home, but in a town, and still more in such a town as London, he found himself at his wits' end." But the practical spirit, the common sense of our race, successfully asserted itself—e.g., in the case of the Sheriffs, who in London are elected by the citizens. In general, sheriffs are appointed by the Crown, and, as the name implies, they are strictly county officers. In the case of the special franchise of the Fitzwalters we have seen how eagerly the Corporation embraced the opportunity afforded by the sale of Baynard Castle to secure greater freedom and homogeneity in the government of the City.
Subordinate to the sheriff in the administration of a county are various classes of bailiffs; and the bailiff bore to the lord of a fee much the same relation as the sheriff did to the King. For one or other of these reasons the mayors of provincial towns were, in the early days of local autonomy, termed bailiffs. By a charter granted in 1200 King John permitted the citizens of Lincoln to elect two of their number "well and faithfully to maintain the provostship (præposituram) of the city." Twenty-two years afterwards the persons holding this office were called upon to represent the city in a dispute with the burgesses of Beverley—"Ballivi civitatis Lincolnie summoniti fuerunt ad respondendum burgensibus de Beverlaco." The record continues: "Et Major Lincolnie et Robertus filius Eudonis ballivi Lincolnie veniunt et defendunt," etc. Maitland, in his edition of Bracton's "Note-Book," in which these particulars occur, suggests that the name of one of the bailiffs has been omitted, but Mr. Round is doubtless right in holding that the senior bailiff was the "Mayor of Lincoln." Stevenson's "Report on the Gloucester Corporation Records" (9th Appendix to the 12th Report on Hist. MSS.) renders it certain that the titles were interchangeable. "A noteworthy circumstance," he says, "is that although the office of Mayor of Gloucester was not created until 1483, one Richard the Burgess is frequently described in the witness clauses as 'tunc Majore de Glouc.' The dates of these deeds range between circa 1220 and circa 1240. Sometimes this appears to be the title of the senior Bailiff, as Richard Burgess and Thomas Ouenat are described as Bailiffs in a deed circa 1230, but in another deed of the same date Burgess is called 'Major' and Ouenat 'Bailiff.'"
In some boroughs the old royal officer, the Portreeve—the title is a hybrid compounded of the Anglo-Saxon gerefa and the Latin porta (not portus), alluding to the gate, where the markets were held—bore sway. At Tiverton, which was incorporated in 1614, the offices of Mayor and Portreeve existed side by side, and down to the year 1790 the latter exercised the power of summoning certain people to attend the septennial perambulation of the Town Lake—a stream of water the property of the inhabitants. On such occasions the Portreeve completely effaced the Mayor, who is not mentioned by name in connexion with the proceedings. The following extracts from a record in the Court Leet books of the proceedings on September 1, 1774, will demonstrate that the celebration, which took place entirely within the confines of the borough, was a survival of a state of things anterior to the grant of a charter.
"A procession and survey of the ancient rivulet, watercourse, or town lake, running from a spring rising near an ash pollard in and at the head of a certain common called Norwood Common, within the said Hundred, Manor, and Borough to Coggan's Well near the Market Cross in the town of Tiverton aforesaid, belonging to the inhabitants of, and others his Majesty's liege subjects, living, sojourning, and residing in the town of Tiverton aforesaid, for their sole use and benefit, was made and taken by Mr. Martin Dunsford (Portreeve), Henry Atkins, Esq. (Steward), Thomas Warren and Philip Davey (water bailiffs) and the Rev. Mr. William Wood ... and divers other persons, free suitors, tenants and inhabitants of the said town, parish, and hundred of Tiverton, by the order of the honourable Sir Thomas Carew, baronet, Dame Elizabeth Carew and Edward Colman, Esq., Lords of the Hundred, Manor and Borough aforesaid, the first day of September in the year of our Lord one thousand seven hundred and seventy-four.
"The Portreeve and Free Suitors, having adjourned the Court Baron, which was this day held, proceeded from the Court or Church House in the following order:—The Bailiff of the Hundred with his staff and a basket of cakes; the children of the Charity School and other boys two and two; the two water bailiffs with white staves; music; Freeholders and Free Suitors two and two; the Steward; the Portreeve with his staff; other gentlemen of the town, &c., who attended the Portreeve on this occasion; the Common Cryer of the Hundred, Manor, and Borough aforesaid, as assistant to the Bailiff of the Hundred with his staff.
"In this manner they proceeded at first to the Market Cross, and there at Coggan's Well, the Cryer with his staff in the well made the following proclamation in the usual and ancient form—'Oyez! Oyez!! Oyez!!! I do hereby proclaim and give notice that by order of the Lords of this Hundred, Manor, and Borough of Tiverton, and on behalf of the inhabitants of this town and parish, the Portreeve and inhabitants now here assembled, publicly proclaim this stream of water, for the sole use and benefit of the inhabitants of the town of Tiverton and other his Majesty's liege subjects there being and sojourning, from the Market Cross in Tiverton to Norwood Common." They then proceeded in the same order through the Back Lane, in every part as it ran and through the ancient path of the water bailiffs time out of mind and made the like proclamation at the following places.... The Portreeve and free suitors and others that attended them in their way noted every diversion and nuisance that seemed to affect the Lake, and afterwards returned to Tiverton and dined at the Vine Tavern, where they gave the following charity children and other poor boys that attended them twopence a-piece....
These duties are now performed by the Mayor and Corporation, but the custom was observed in the traditional manner at least as late as 1830. We have ascertained that not only did the Portreeve take the lead on these occasions, but, like the Mayor and other members of the Corporation, he was ex officio guardian of the poor of the town and parish—a privilege which he shared with them alone. We have here, therefore, an instance of dual authority lasting well into the nineteenth century, or nearly six hundred years after London had purged itself of the feudal element in its administration. To appreciate its full significance we have to remember that there existed, side by side with corporate towns, others which were not actually corporate, but were known, nevertheless, as free boroughs or liberties, the reason being that the owners of tenements in them held of the lord by burgage tenure in the same way as the freemen of Liverpool held of the King, and that there were manorial courts, which exempted the burgesses from the jurisdiction of the Sheriff's Hundred Court, the Sheriff's County Court, and even the higher courts of the Crown.
The executive officers, the Portreeve and the Bailiffs exercised functions probably as old as the borough itself, and therefore, in almost every instance, to be traced to the freer times preceding the Norman Conquest. Stoford, in Somerset, a good type of such a town, retained its constitution until the middle of the eighteenth century. In the reign of Edward I. it included no fewer than seventy-four burgages; and the burgesses set such store by their privileges that they would not permit an inquisition to be taken by the jury of the county save in conjunction with a jury of their own. The borough had a guildhall, the "Zuldhous," for which a rent of 2s. was paid to the lord of the fee by certain Representatives of the "Commonalty." Commenting on this circumstance, the late Mr. John Batten, F.S.A., remarks: "It proves that the burgesses had not acquired the true element of a corporation, by which the Guildhall would have passed by law to the members for the time being; but that it was necessary to convey it to certain persons as feoffees or trustees." Stoford, however, had its official seal, bearing the ungrammatical, but intelligible, legend,
This may seem rather an example of urbs in rure than of rus in urbe, for it was on such half-emancipated towns that corporate boroughs like Hereford looked down (see above, p. 177), and precisely because of their subjection to a lord. Stoford, and similar places, were deemed, and were, wholly, or almost wholly, rural, and the real question is how far the term urbs is applicable to them. As used in this connexion, it is intended to denote precisely what the term "borough" did in its widest signification—namely, a self-governing community; and the "free" but non-corporate boroughs were clearly more allied to ordinary manors than to towns and cities priding themselves on their independence.
The terms "portreeve" and "bailiff" are extremely familiar, and the offices they denote are by no means extinct; but, in addition to these functionaries, there has been perpetuated a whole family of minor ministers even more closely associated with the agricultural aspects of town life. Mr. G. L. Gomme, F.S.A., so well known for his labours in various fields of antiquarian interest, has devoted particular attention to this matter, and for what follows we are indebted entirely to his industrious research. He points out that "the old village community was organized and self-acting," and "possessed a body of officers and servants which made it independent of outside help." These officers and servants were, in fairly numerous instances, retained long after the village had outgrown its primitive limits. In quite a variety of places we meet with pound-keepers, pound-drivers, and pinders; and the hayward also has been found in as many as fifteen different towns. In the same list are included the brookwarden of Arundel, the field-grieve of Berwick-on-Tweed, the grass-men of Newcastle-on-Tyne, the warreners of Scarborough, the keeper of the greenyard in London, the hedge-lookers of Lancaster and Clitheroe, the molecatcher of Arundel, Leicestershire, and Richmond, the field-driver of Bedford, the herd, the nolts-herds, the town swine-herds of Alnwick, Newcastle, Shrewsbury, and Doncaster, the pasture-masters of Beverley and York, the moss-grieves of Alnwick, the moormen and mossmen of Lancaster, the moor-wardens of Axbridge, the fen-reeves of Beccles and Southwold, and the woodwards of Havering and Nottingham.
It will occur to most people that, if these offices were maintained, the reason must have been something more than the mere force of conservatism, great as that has been in the steady evolution of English life; and such was undoubtedly the case in most of, if not all, the cases cited. In other words, the townsmen, individually, as a body, or in the persons of a limited number of elect, continued to enjoy certain rights, and to hold a financial stake, in the soil surrounding that on which their town was planted. The officers were often paid not in cash, but in kind, either a quantity of grain being allotted to them or a piece of land. The latter form of remuneration, which was the more common, is exemplified at Doncaster, where there is a field called the Pinder's Balk, which the pinder cultivated for his own profit. At Malmesbury, it appears, he occupied the position of honour held in other towns by the Mayor, and his salary is represented by a piece of land called the Alderman's Kitchen.
Let us now turn to the communities themselves. At Nottingham resident burgesses have a right, falling to them in order of seniority, to the "burgess part"—i.e., a piece of land, either field or meadow, for which each pays a small ground rent to the Corporation.[14] These "parts" number 254, and they are of varying value, so that, as Mr. Gomme puts it, they constitute "a sort of lottery." At Manchester there are 280 allotments, each about an acre in extent, in which all the commoners have an interest. To forty-eight landholders is assigned an acre each, and twenty-four assistant (?) burgesses have each of them an additional acre. At Berwick-on-Tweed there are two portions of land, of which one is demised, under the name of "treasurer's farms," by the mayor, bailiff, and burgesses to tenants. The other part includes sundry parcels called meadows ranging from 1¼ to 2½ acres; and every year at a meeting of the burgesses—the "meadowguild," as it is termed—the lands vacated by the death or departure of those last in occupation go to the oldest burgesses or burgesses' widows eligible by residence, the right of choice depending on seniority.
The land belonging to the Corporation of Langharne is similarly allocated. When an occupier dies, the profits accruing from his share are kept by his representatives, and at the ensuing Michaelmas Court the burgess next in age to the deceased is presented by the jury, and obtains the share previously held by him. Mr. Gomme points out that the reverence for age discoverable in so many of these customs is characteristic of the Teutonic races and of primitive communities in general. An interesting feature of this case is that corn is sown in 330 acres for three years in succession and during the next three years they are grassed out.
The heading of the chapter is "Rus in Urbe," and, still following Mr. Gomme's guidance, we have now to trace a transition that occurred in the use of these public lands as the urban element became more and more preponderant. It seems that while there are boroughs with common pasture only, there has been found no instance of a borough having arable and meadow allotments, and no common pasture. The inference is that, as the community grew more addicted to mercantile pursuits, they were less able to devote themselves to the cares of husbandry, and, accordingly, the lands ceased to be cultivated. But they were still of considerable value for grazing purposes. The merchants' cattle and horses might be placed in them—the latter, perhaps, being subsequently entered in the service of trade. Existing arrangements in boroughs which have abandoned agriculture afford clear indications that at one time allotments were carried out and rules enforced with regard to cultivation and the annual crops.
The history of many towns shows that they formerly enjoyed rights of common which they no longer enjoy, and the manner in which these became lost is in numerous instances a mystery. When, from being lands of which the tenants were virtually seised for life, they passed through some evolution into being the property of the corporation let to freemen or others as the case might be, they might not improbably be sold for the good of the community at large. In earlier days the right may have been surrendered by timid or ignorant townspeople under the pressure of a local lord of the manor strong enough to set the law at defiance, or a compromise may have been effected between him and those in temporary enjoyment of the benefit. These, as we have observed, sometimes consisted of no more than a fraction of the inhabitants, and, as the population increased, this would be a diminishing fraction, with the result that outsiders would be apathetic regarding the fate of the common. Where there was a special qualification, it was not necessarily seniority. At Huntingdon, for example, it was the freemen dwelling in "commonable" houses who were privileged to use the common.
There were other restrictions than those already named. In the locality just mentioned "commonable" burgesses, if we may imitate their manner of speech, might depasture two cows and one horse from Old May-day till Martinmas, and four sheep from Martinmas till Candlemas. At Coventry, in what are called Lammas Lands, the allowance is two horses and one cow. How very wise and necessary these limitations were may be gleaned from the following extract from a decree in Chancery in 42 Elizabeth. The bill—we have modernized the spelling—recites that,
"Divers years past sundry godly and well-disposed persons having commiseration of the poor estate of the said town and parish, did in sundry times in divers kings' reigns assure certain lands, tenements, rents, common of pasture, of profits of markets and fairs and other annual commodities under divers and sundry persons for the ease and relief of the same poor inhabitants of the said town and parish, and namely one William, sometimes Lord of the Town and Borough of Torrington Magna aforesaid, by his deed did assure unto the free burgesses of the said town, and some others of his free tenants of his said manor dwelling in the parish of Torrington aforesaid, common of pasture for their beasts and cattle in and throughout his waste grounds within his manor of Great Torrington, lying within the aforesaid parish and known by divers names there, by the name of the Wester Common and one other by the name of Hatchmoor Common with, others, which waste grounds in the whole do contain about five hundred acres of land and are lying very near adjoining to the said town on each side thereof, the which hath been and so might continue and be very profitable and commodious for all the poor inhabitants of the said town and other free tenants of the said manor that by the same grant ought to have common of pasture therein, if the same were used in any reasonable rate or with any indifferency according to the good and charitable mind and intent of the said granter thereof, but in what form or what the words of the deeds are the said complainants could not express.
"They, or some of them [the defendants], do continually oppress and surcharge with their beasts, sheep, and cattle the common grounds, so as the poor inhabitants cannot well keep a cow or horse thereupon for their use and commodity in any good estate, whereas if the same were used with any indifferency according to the true intent of the donor thereof, every inhabitant within the said town that hath any ancient burgage to which the said common of pasture was granted might well keep two kine or a cow and a gelding or a horse beast with little or no charge. All which was devoured and eaten up by six or eight of the richest greedy persons of the same town and the inhabitants thereof."
But the benefit of common was sometimes not merely attenuated by the action of a powerful and covetous few, but, as was before observed, wholly or partially lost. The following passage from the same bill throws some light on the point:
"And also the said Roger Ley under colour of a lease, which he himself with the residue of his consorts made of certain tenements, parcel of the said lands and tenements, unto certain of the children of the said Ley wherein he had cunningly inserted parcel of the same common ground contrary to the knowledge and weeting of the residue of his cofeoffees or some of them had entered upon parcel of the said common ground called Hatchmoor or lying in Hatchmoor, wherein the said complainants, having burgages within the said town, and all other that dwell in the ancient burgages or dwelling-houses within the said town, ought and had used time out of mind to have common of pasture, without any colour of lawful right had enclosed and tilled two parcels thereof containing about fourteen or sixteen acres and made divers leases thereof to persons unknown, and had shut up an ancient lane or way, commonly called Dark Lane, leading from the said town to the said common of Hatchmoor, through which the inhabitants of the said town had always time out of mind, until the said enclosure, used go and drive to the said common, to the great hindrance, hurt, and damage of the said complainants, and to the disinherison of the said town for ever."
That towns, and even great towns, abode by the traditions of country life, is now abundantly manifest, but the indications above given shed only partial light on rural conditions in their earliest and fullest form. These will furnish the theme of the following chapter, which, it is hoped, will furnish the clue to much that is mysterious in the data thus far supplied.