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CHAPTER THIRTEEN. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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Et civitas Londonie habeat omnes antiquas libertates et liberas consuetudines suas, tam per terras, quam per aquas. Preterea volumus et concedimus quod omnes alie civitates, et burgi, et ville, et portus, habeant omnes libertates et liberas consuetudines suas.
And the city of London shall have all its ancient liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.
A full list of London’s liberties and customs would be a long one; and to relate how each of these grew up and was confirmed by the Crown need not be here attempted. The most cherished of the privileges enjoyed in John’s day by the citizens were the right to appoint a civic chief, who bore the name of mayor, and the right to choose the sheriffs who should collect the city’s firma1 (or annual rent payable to the exchequer), so as to obviate the intrusion of royal bailiffs. Only a brief account of the way in which the metropolis obtained these privileges is here required.
The chief feature of London before the Norman Conquest seems to have been lack of proper municipal organization. Dr. Stubbs describes the capital during the eleventh century as “a bundle of communities, townships, parishes, and lordships, of which each has its own constitution.”2 It was thus a collection of small administrative units, rather than one large unit. Some semblance of legal unity was, it is true, afforded by the folkmoot, in which the citizens regularly assembled; by its smaller council known as “husteng”; and perhaps also by its “cnihtengild” (if, indeed, this third body be not entirely mythical); while the existence of a “portreeve” shows that for some financial purposes the city was treated as one whole. London, however, prior to the reign of Henry I. was far from possessing the machinery of an efficient municipal government.
The first step towards a constitution is generally supposed to have been taken by the citizens when they obtained a charter from Henry I. in the last years of his reign (1130–35). This is not strictly accurate. London, indeed, by that grant gained valuable privileges; but it did not obtain a constitution. The chief rights actually conferred by Henry were as follows:—(1) The firma was fixed at the reduced rate of £300 per annum, the citizens obtaining a lease in perpetuity of their own city with the surrounding county of Middlesex—the grant being made to the citizens and their heirs; (2) they acquired the right to appoint the sheriffs of London and Middlesex, implying the exclusion of the King’s tax–collectors by men of their own choosing; (3) a similar right of appointing their own nominee as justiciar was also conferred on them, to the exclusion apparently of the royal justices of eyre. Many minor privileges were confirmed which need not here be specified. Mr. J. H. Round1 argues with convincing force that these concessions, important as they were, did not confer a civic constitution upon London. Henry’s charter, in his opinion, confirmed the separate jurisdictions and franchises, perpetuating the old state of disunion, rather than creating a new principle of cohesion. Mr. Round proves, further, that the new concessions were cancelled by Stephen in 1141, when Geoffrey de Mandeville compelled Stephen to appoint him as sheriff and justiciar of London. Earlier in the same year, the citizens had risen against Matilda and tried to establish a sworn Commune, presumably of the continental type.2 When London was placed in Earl Geoffrey’s hands, all vestige of this would be swept away, along with any of the privileges granted by Henry I. that had endured till then.
Henry II., indeed, granted a charter in 1155, which is usually interpreted as a full confirmation of the concessions of the earlier Henry.3 Mr. Round has proved the error of this opinion.4 The charter of 1155 restricted, rather than enlarged, the privileges of London, being couched in cautious and somewhat grudging terms. The main concessions of the earlier charter were omitted: the citizens no longer elected their sheriffs or justiciar; the reduction of the firma to £300 was not confirmed; and subsequent pipe rolls show that Henry doubled that amount.
The next crisis came early in Richard’s reign. Then it was, perhaps, that London obtained its municipal constitution. Then also it may have regained the privileges precariously held under Henry I. and Stephen. The form in which the constitution came at last was, Mr. Round argues, borrowed from France, and was neither more nor less than the Commune, so well known on the Continent in the twelfth and thirteenth centuries. Mr. Round1 has shown that these concessions were not, as has sometimes been supposed, voluntarily granted in 1189 by Richard I., but were extorted from his brother John, when that ambitious prince was bidding for powerful allies to support his claim to act as Regent. London, Mr. Round maintains, got its constitution on 8th October, 1191, under picturesque and memorable circumstances. While Richard tarried in the Holy Land, a scramble took place at home for the right to represent him. The Chancellor Longchamp had been appointed Regent; but John, wily and unscrupulous, ousted him, with the help of the men of London. At the critical moment, the metropolis had offered support on conditions, which included restoration of the short–lived privileges conferred by Henry I., and, in addition, a municipal constitution of the continental type.
Mr. Round, in a notable passage, describes the scene. “When, in the crisis of October, 1191, the administration found itself paralysed by the conflict between John, as the King’s brother, and Longchamp, as the King’s representative, London, finding that she held the scales, promptly named the ‘Commune’ as the price of her support. The chronicles of the day enable us to picture to ourselves the scene, as the excited citizens, who had poured forth overnight, with lanterns and torches to welcome John to the capital, streamed together on the morning of the eventful 8th October at the well–known sound of the great bell, swinging out from its campanile in St. Paul’s Churchyard. There they heard John take the oath to the ‘Commune,’ like a French king or lord; and then London, for the first time, had a municipality of her own.”1
For any accurate definition of a Commune we look in vain to contemporary writers. Richard of Devizes2 quotes with approval, “Communia est tumor plebis, timor regni, tepor sacerdotii.” Some insight has been gained in recent years, however, into its exact nature. A Commune was a town that had obtained recognition as a corporate entity, as a link in the feudal chain, becoming the free vassal of the King or other lord, and itself capable of having subvassals of its own.3 Its chief institutions were a mayor and elective council, generally composed of twenty–four members, some or all of whom were known as échevins or skivini. Perhaps, the chief peculiarity of the Commune was the method of its formation, namely, by popular association or conspiracy, involving the taking of an oath of a more or less revolutionary nature by the citizens, and its subsequent ratification by those in authority. It is generally admitted that these communes, though revolutionary in origin, were not necessarily democratic in their sympathies.
From 1191 onwards, London was governed by its own mayor, an official chosen by the citizens, but holding office for life, until the citizens obtained a further concession in 1215. It has sometimes been argued that as a mayor was the natural head of a Commune, the continued existence of the one implied the existence of the other. It seems more likely, however, that if a Commune was actually set up in 1191, it did not long survive Richard’s return from captivity. Mayors were to be found in the twelfth century ruling over boroughs that were not technically “Communes”; and Richard may have been willing to accept a mayor of London’s choosing, while he repudiated the city’s claim to independence as a Commune.
When John became King, he granted three charters to the capital for a gersuma (or slump payment) of 3000 marks.1 All franchises specified in the charter of Henry I. were confirmed, with one exception: the liberty to appoint a justiciar of their own, now seen to be inconsistent with the Crown’s centralizing policy, was abandoned. None of these charters made mention of mayor or commune, but they confirmed some minor privileges gained in Richard’s reign.2
A fourth charter, dated 20th March, 1201, was of temporary interest. The fifth and last of the series came in the crisis of 1215, and some light is possibly shed on it by comparison with the petition of nine articles already mentioned,3 which seems to represent the demands made by the Londoners at that date. Besides exemption from arbitrary tallage and several minor concessions, they demanded the control of Thames, the annual election of their mayor in the folkmoot, freedom of access for foreign traders, and the right to distrain for debt against the persons and property of debtors.
Some of these demands were granted by John’s fifth charter, dated 9th May, 1215, some five weeks previous to Magna Charter, and representing the bait thrown by John to gain their support in this new crisis as he had gained it in the earlier crisis of 1191. The men of London obtained the right to appoint a mayor annually, and, if they chose, to depose him at the year’s end and appoint another in his place, a right which Miss Norgate aptly calls “the crowning privilege of a fully constituted municipality.”4 The charter at the same time confirms all liberties already enjoyed, “as well within London as without, as well on water as on land, salva nobis chamberlengia nostra.” The control of Thames and Medway, mentioned with more particularity in Magna Carta, seems to be here granted; while the freedom of access of foreign merchants is qualified by John’s reservation of the right to take toll from them by appropriating such of their choicest wares as his chamberlain might select for the royal household.1
If the nine articles contain London’s demands in 1215, the Charter of 9th May gives what John was willing to promise in return for the city’s support; and the Articuli Baronum what the barons compelled him to grant to the city after it had preferred their alliance to his; while Magna Carta shows some slight modifications in the King’s favour.
Such was the London whose privileges were confirmed by chapter 13 of Magna Carta in words that avoided details and confined themselves to a general confirmation of ancient “liberties and free customs.”2 Neither mayor nor Commune is mentioned; but the question has been raised whether by implication the Great Charter does not recognize the existence of one or both of these.
As the charter of 9th May had granted to London the right to elect a mayor, and as the mayor was appointed one of the 25 executors under chapter 61, it is clear that Magna Carta accepted that magistrate as head of the city’s government; and the recognition of a mayor has sometimes been held to suggest also the recognition of a Commune. Professor Adams, on the other hand, has based an argument for the existence of a Commune after June, 1215, mainly upon the omission of the word tallage from chapter 12, which thus makes it possible to infer that an auxilium is the only imposition to be lawfully levied on London.3 He seeks to show, further, that London lost this status of a Commune in 1216, when the charter was reissued without the chapter associating London with the payment of auxilium: “this clause was omitted, and with it London’s legal right to a Commune fell to the ground.”4
It is pertinent to note, however, that the Patent Rolls for 12211 refer to “the mayor and Commune of London.” If this implies the existence of a real Commune of the continental type, the date of its final abolition may possibly have been the year following, when London quarrelled with the young King’s ministers and had difficulty in making peace.2 On the whole, it must be left an open question whether or not the privileges granted to London in 1215 included the establishment of a Commune, and, if so, when that form of municipal government came to an end.
In this chapter of John’s Magna Carta (in contrast with the last clause of chapter 12), London did not stand alone. “All other cities, boroughs, towns and ports” were confirmed in their liberties and free customs. A specification of these was, of course, impossible; each borough was left to prove its privileges as best it might. In the reissues of Henry, London shared the distinction of being mentioned by name with “the barons of the Cinque ports,” who from their wealth, their situation, and their fleet, were allies worth conciliating. They played, indeed, a prominent part in the decisive naval victory gained by Hubert de Burgh on 24th August, 1217.3
Among the most cherished privileges claimed by the chartered boroughs were the rights to exact tolls and to place oppressive restrictions upon rival traders not members of their guilds, foreigners and denizens alike. The general confirmation of privileges in this chapter has been held to contradict chapter 41, which grants protection and immunities to foreign merchants.4 The inconsistency, however, is perhaps greater in appearance than reality, since the later chapter aimed at abolition of “evil customs” inflicted by the King, not of those inflicted by the boroughs. At the same time, any favour shown to aliens would be bitterly resented by English traders. If the charter had been put in force in its integrity, the more specific privileges in favour of foreign merchants would have prevailed in opposition to the vague confirmation of borough “liberties,” wherever the two conflicted.1
Other portions of John’s Great Charter that specially affected Londoners were the last clause of chapter 12, and chapters 33 and 41; while many of the privileges granted or confirmed in other chapters were shared by them.
[1 ]Firma is explained infra, c. 25.
[2 ]Stubbs, Const. Hist., I. 439. Round, Commune, 220, is in substantial agreement. Miss Bateson, however, thinks “there has been a tendency unduly to minimise the measure of administrative unity in the twelfth–century shire of London.” See evidence produced by her, Engl. Hist. Rev., XVII. 480–510.
[1 ]Geoffrey de Mandeville, 356.
[2 ]William of Malmesbury, II. 576.
[3 ]See e.g. Miss Norgate, Angevin Kings, II. 471.
[4 ]Geoffrey, 367.
[1 ]Commune of London, 222.
[1 ]Commune of London, 224.
[2 ]Select Charters, p. 252.
[3 ]Luchaire, Communes Françaises, p. 97, defines it as “seigneurie collective populaire.”
[1 ]Miss Bateson, Engl. Hist. Rev., XVII. 508.
[2 ]E.g. removal of obstacles in Thames and Medway. Cf. infra, c. 33.
[3 ]Supra, p. 236.
[4 ]John Lackland, 228. From this date the list of mayors shows frequent, sometimes annual, changes. Serlo, the mercer, was mayor in May, 1215, when London opened its gates to the insurgents, while William Hardell had succeeded him before 2nd June, 1216.
[1 ]See text of Charter in Sel. Chart., 315.
[2 ]The meaning of both words is discussed infra, c. 39.
[3 ]See supra, p. 236. M. Petit–Dutaillis (Studies Supplementary, 102) doubts whether the citizens in 1215 had any wish to become a Commune, and holds that their desire was to escape burdensome exactions, no matter what these might be called. Prof. Adams (Origin, 367) maintains, in reply, that the only practicable method of effecting this exemption was to obtain recognition as a Commune.
[4 ]Ibid., 361.
[1 ]Rot. Pat., 303–4.
[2 ]See Norgate, Minority, 186, and authorities there cited.
[3 ]See supra, p. 145.
[4 ]Cf. Pollock and Maitland, I. 447–8.
[1 ]Cf. infra, c. 41.