Just as the Universities and the Judiciary were found to have a common link in the Order of the Coif, so we find that the Judiciary and the City were bound each to each by the existence of by-laws, or, as they were termed in a technical sense, "customs." Although, to avoid misapprehension, these "customs" may be styled by-laws, and many of them strictly answer to the description, on the whole they bore a very different relation to the laws of the land from the by-laws of modern corporations, the latter being purely subsidiary, while the former affected the most important issues, and, in the absence of much general legislation, possessed all the validity of statute law.
Custom in Law

As there was considerable variation between the customs of different towns and different counties, it became the duty of the Justices on Eyre to investigate what was the custom, with regard to the subject of the plea, in the particular locality, and they gave their decisions accordingly.

Some of these cases are sufficiently amusing, as may be gathered from the following record of a case heard in the Salop Inter of 1292:

"One Adam brought a writ of Entry against B.—B.: 'Sir, we vouch to warranty, &c., W. de C., who is under age, to be summoned, &c.'—C. came and prayed his age.—Spigornel (for Adam): 'Sir, according to the custom of the town, he is of age when he knows how to count up to twelve pence, and he shall answer in a writ of Right at that age; and inasmuch as he would answer in a writ of Right at that age, he shall warrant at that age, or shall counterplead, &c. But now he is nineteen years old, which is nearly of full age. Judgment if he shall not warrant or counterplead.' Judgment that he should."

From the same Year-Book we obtain an insight into the working of what may be termed communal law in the weighty matter of succession. One Isabel brought the Novel Disseisin against a chaplain named Martin de Hereford and others for a tenement in Shrewsbury. The defence was that Martin had entered by the devise of one William Silke, and that the custom of the town permitted a man on his death-bed to devise tenements of his own purchase. Isabel's counsel, on the other hand, contended that William's father held the tenements by the law of England, and that William merely purchased the freehold, arguing also that the devise was made in contravention of the statute (7 Ed. I., st. 27), since it was made in mortmain for the beneficiaries to chant for him and his heirs for ever. The Judge ruled that alienation contrary to the statute was no justification for the heir to enter; and he drew attention to the inconsistency of counsel in pleading that Silke could not devise his inheritance, and that he could devise if there were no infraction of the statute. Counsel thereupon elected to abide by his first contention, and the question of fact was referred to the Assise (or Jury) which found that part of the tenements were in William's seisin and that William had purchased his father's estate therein.

We now come to the concluding passages of this highly interesting suit:

"Berewyke [the Judge]: 'For that he could not purchase his own heritage so that it could be styled his own purchase; and he devised the tenements; and the custom of the town does not permit a man to devise his heritage; Therefore this Court adjudges that Sybil (sic) do recover her seisin of the tenements which were not devisable. Now what say you as to the remainder?'

"The Assise said that the remainder of the tenements were of his own purchase from several persons in the town, and that in his last illness he devised them to Martin for the term of his life, and that the testament was proved at the Guildhall according to the custom of the town; and that the executors were commanded to deliver seisin to Martin, and that according to the custom he had the seisin, &c.

"Berewyke: 'Since it is found that he entered on the tenements according to the custom, &c.—although you were seised for four weeks, yet that ought not to give you a title—this Court adjudges that you do take nothing by the writ, &c. After Martin's death be well advised.'"

Communal law, however, was not allowed to override the law of England.[12] This principle was asserted in 1293, when Thomas le Chamberleyn brought a writ before the Common Bench against a certain W., who, he complained, had taken his horse in the highway in the town of Bernewell. The writ ran—"took in the highway and still keeps impounded." There was the usual wrangle between counsel, and an attempt was made to oust or invalidate the writ by asserting that six years and a half before it (the writ) was purchased the animal had been surrendered. After this preliminary fencing counsel for the defence produced his real case, which was that by the King's charter the burgesses of Cambridge had a franchise to this extent, that when clerks or other persons were in debt they might seize their horses or other property within the liberty; and as Thomas was bound in so many shillings, his horse was seized according to the custom of the town, and in no other way. The trespass being admitted, the Judge (Gislingham) proceeded to give judgment on the plea of justification. He said:

"For that it is against the common law and against the statutes to make such a taking in the highway unless he be the King's bailiff, notwithstanding any franchise which the King may have granted, therefore the Court adjudges that Thomas do recover his damages, and that W. be in mercy for his tortious taking."

This leads to another point. Corporations had their local courts, and some of them, by virtue of this fact, claimed exemption from the jurisdiction of the higher courts. Such was the case at Liverpool, and according to Sir. F. A. Picton there are instances on record in which they succeeded in establishing their claim. How far these local authorities were fit to be entrusted with the execution of justice may be estimated by some lively incidents which took place in the early days of October, 1565. One Thomas Johnson had been apprehended for picking purses. Apparently he underwent no regular trial, but was dealt with summarily, the programme being as follows: First, he was imprisoned several days and nights, and then he was nailed by the ear to a post at the flesh-shambles. As the next item, he was turned out naked from the middle upwards, and many boys, with withy rods, whipped him out of the town. He was then locked to a clog with an iron chain and horseblock until the Friday morning following, and finally abjured the town before the Mayor and Bailiffs, at the same time making restitution of 6s. 8d. to the wife of one Henry Myln. Thus, there was a rude efficacy in the process, but it might perhaps have been received as sufficient ground for a writ of certiorari if Johnson had again fallen into the hands of his tormentors.

It is certain that at times towns had to answer, through their officers, for alleged acts of illegality in their corporate capacity. Thus in 1292 one Adam—the reader will observe that the records do not give the actual names, Adam being chosen as beginning with the first letter of the alphabet—brought the Replegiare against B., &c., stating that B., &c., had tortiously taken his chattels in the High Street of the Town of Gloucester and conveyed them to their toll booth in the same town. B. and C., the bailiffs, defended the seizure, asserting that by the custom of the town of Gloucester only freemen might cut cloth there—strangers might sell cloth by the piece, but not cut it.

Adam was not a freeman of the town, but, in opposition to the custom, he had come and cut his cloth. As against this Adam produced a charter witnessing that the King had granted him the right of cutting cloth in the same way as other freemen, and, by virtue of the charter, he maintained that he had been seised from time whereof, &c. The bailiffs repudiated this claim. We do not learn what the judgment was in this case, but the phrase "other freemen" is suspicious. It suggests that the charter had been granted in ignorance of the custom of this particular town, not out of disrespect for it, since the tendency of all the evidence is to show that local autonomy and local privileges in such matters were treated with infinite care. It almost appears as if Adam had taken advantage of an ambiguity. As regards ordinary civil rights Adam was doubtless a freeman—otherwise he could not have brought this action—but he was not a freeman in the sense that he paid scot and lot in the town of Gloucester.

Such persons were often styled "foreigners," and therefore the plaintiff in this case would have occupied precisely the same position as "foreign" merchants who transgressed the customs of London. One of these was that they were not to attend any market or fair at a greater distance than three miles from the City, nor had Justices or Sheriff power to give them leave to do so. If a Sheriff caught any "foreign" merchant beyond those bounds, he was supposed to bring him back, and the money found on his person having been confiscated was shared between the Sheriff and the citizens. If, however, the citizens were alone responsible for the capture, the whole of the money went to them. Other rules were that merchants repairing to London for the sale of linen, cloth and wool might do business only on three days of the week (Mondays, Tuesdays, and Wednesdays). They were then, if anything remained to be sold, to pack up their goods and wait till the following week; and in no case were they to sell ad detail (retail).

A custom which we meet with at Dover and Reading, and was probably adopted by other towns, is one described in sundry ordinances de stachia, the latter being barbarous Latin for "stake." This was a device for recovering possession of a tenement after a specified time, when the tenant had fallen into arrears of rent, and consisted in the landlord erecting a stake in front of the house as a notification of his claim.
Crown and Town

Despite identity of usage at Dover and Reading on the subject of the stake, it would be pardonable to conclude that in those times of difficult communication there existed a great diversity of burghal laws, entailing considerable inconvenience and hardship, especially in the case of those engaged in trade. Since the adoption or growth of customs depended on the interests or sentiments of particular communities, diversity was, to some extent, inevitable, but the tendency to local independence—an independence tenaciously maintained and jealously guarded—was tempered by counter-tendencies. Thus it was not always to the interest of a town or city to stand in complete isolation from centres of a similar type, or possibly of a superior organization; and, in such instances, a smaller, weaker, less perfectly developed community might seek to improve its status or fortune by modelling its arrangements on those of a more advanced and more powerful neighbour, and in addition to and as a corollary of this, enter into a formal or informal alliance with it, in which the latter would hold the position of protector or patron.

In the Middle Ages there subsisted between the towns and the feudal aristocracy an antagonism sometimes silent and slumbering, sometimes wakened into fierce consciousness and expressing itself not only in hardy words, but in sanguinary deeds. On the Continent the towns were the hotbeds of revolution, and the commune, with its mayor as figure-head, signalized the triumph of the insurrectionary temper. This state of things was more marked on the Continent than in England, where the Barons led the assault on tyranny, and where, for his own purposes, the monarch fostered the prosperity of towns of his own planting. But Mr. J. H. Round, in his singularly able article on "The Origin of the Mayoralty of London," contributed to the "Arch?ological Journal," shows conclusively that this institution, now the ?gis of all that is staid, stable, and respectable, was the offspring of the spirit of revolt which spread like a contagion from Italy to France, Germany, and the Low Countries, and thence to the Thames.

Dr. Gross's valuable contribution to the "Antiquary" (1885), treating of the affiliation of towns, is of a general character, and illustrated largely by continental examples; anyone, however, who wishes to grasp the full significance of medi?val relationships as between town and town, will be well advised in consulting that succinct account. Here we must confine ourselves to English experience, in which the same traits appear, only more faintly. Before proceeding to this inquiry it may not be amiss to advert briefly to another aspect of the subject. We have said above that, in England, the monarch inclined to favour certain towns for his own purposes, and such towns were naturally of the highest precedence. If we turn to Liverpool, we shall find that in 1206 it received a visit from King John, who the following year issued letters patent of which the following is a translation:

"John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to all his liegemen who would desire to have burgages at the town of Liverpool, greeting. Know ye that we have granted to all who may take burgages at Liverpool that they may have all the liberties and free customs in the town of Liverpool which any free borough on the sea has in our land; and therefore we command that securely, and in our peace, you may come to receive and occupy our burgages. And in testimony thereof we transmit to you these our letters patent. Witness, Simon de Pateshill, at Winchester, the 28th day of August in the ninth year of our reign."

At a later period the people of Liverpool might not have thanked the Crown for facilitating the settlement of a large body of strangers in their midst. Everywhere burgesses were strongly opposed to the colonization of their towns by "upland men," less on sentimental grounds than from the fact that these "foreigners" frequently did not take steps to become naturalized and pay scot and lot towards communal expenses. Clearly this objection did not apply to Liverpool in this instance, and at that relatively early stage of its history the incorporation of a number of well-to-do and industrious immigrants might naturally have been hailed as a gain. It must have been so regarded by the King.

Liverpool was the port of embarkation for troops sailing to Ireland, and is said to have owed its foundation to this circumstance in the days of Strongbow. The advantage of a numerous, loyal, and able-bodied population was seen in 1573, when the Earl of Essex passed through the place on his way to Ireland. It happened that he left behind him a detachment of soldiers, and the "motley coats" and "blue coats," having quarrelled, used their weapons on each other. With admirable promptitude, the Mayor summoned the trained bands, and the rest of the story may be told in the vivacious language of a contemporary:

"Mr. Mayor and all the town suddenly, as pleased God Almighty, were ready upon the heath, every man with their best weapons; so as by good chance every householder being at home, Sunday morning, eager as lions, made show almost even like to the number of the captains and all their soldiers.... After the battle array [which was efficacious in staying the conflict] Mr. Captain showed all gentleness and courtesy to the Mayor, and came up to the town in friendship and amity."

Trained bands formed part of the equipment of a well-appointed medi?val town—a description to which, as we shall show, Liverpool possessed exceptional claims. But the Crown did not benefit solely in this way. The burgages erected numbered 168, each of which paid a ground rent of one shilling per annum into the royal exchequer. The custom dues of the Duchy of Lancaster were another source of profit, and retainers of the King were occasionally quartered on them. Thus in 1372 one Rankyn, a follower of John of Gaunt, was retained on condition that he "in time of peace shall be at board at court ... and that he shall have and take for the term of his life, in the whole, twenty-five marks sterling from the farm of the town of Liverpool."

The object of all towns was to acquire the fullest measure of self-government, and in this respect, despite probable exactions arising from the system of fee-farm leases, Liverpool must be reckoned extraordinarily fortunate. The term "commune" also—word of sinister import since 1871, but used in medi?val England in the innocuous sense of "borough"—seems to have special point in reference to the trading regulations of that ancient port, if compared with the greater individualism of other places, though commercial transactions were universally the subject of manifold restrictions designed to protect the interests of the native against the intrusive and vexatious rivalry of the foreigner. At Liverpool matters went far beyond that.

The Corporation itself for a long time farmed the custom dues, and also levied tolls on, all merchandise that passed through the port. Much land and other property belonged to it, as well as the ecclesiastical patronage, which included the appointment and dismissal of incumbents, wardens, and other church officers. The hanse, composed of the entire body of freemen and burgesses, required that all produce, upon importation, should be first offered to it, and it was then inspected by "prizers" or appraisers, who gave an estimate of its value. If the importers did not care to sell at the price, they had to haggle with the town respecting the sum to be paid for leave to sell in the open market; and any merchant or trader who treated with them on his own account was liable to heavy penalties.[13]

We have previously given a sample of original methods of administering justice at Liverpool, and much might be written of its curious penal code, which embraced such offences as eavesdropping. Hence the protest embodied in the following presentment of the Grand Jury on March 31, 1651, may well express the inner thought of many preceding generations of culprits:

"Item, wee p'sent William Mee for saying and cursing in the court, pointing His finger towards Mr. Mayor and the Jurie, 'If such men as those can give anie judgment, the Divell goe with you and all the acts you have done.' Amerced in five pounds."

We need not recur to the topic of trained bands, and will only remark that in this and other respects Liverpool obtained a degree of self-sufficiency and independence surpassing anything known at the present time, and, apparently, far beyond the common standard even of medi?val towns. It might therefore have stood forth as an object not so much of envy as of imitation. In point of fact, Liverpool—owing, no doubt, to its comparatively late rise and geographical situation—was not one of those towns whose customs were widely copied. In Wales the custom of Hereford held the field, and in the south-west the custom of Winchester, which, through transmission to Newcastle, prevailed also in Northumberland and Scotland. The customs of York and the Cinque Ports attracted smaller groups, while the custom of London was not only mother of the custom of Oxford, but grandmother of the custom of Bedford, since the citizens of Oxford were called in by the last-named town to a............