The purpose of the borough council was partly to provide a formal mechanism for supplying the executive with the legal advice needed to make decisions, partly to ensure that consultation with at least some members of the community occurred before decisions were finalised. The fact that it became necessary to institute second councils, to represent interests that the original council had been supposed to, is symptomatic of a modification of borough constitutional theory. This theory rested upon the principle of the community as the source of governmental authority. The basic objection to the form of pre-charter borough governments was that the executive was responsible to the king rather than to the community. By communitas is meant more than just the aggregate of individual residents; it implies joint interest, united action - in fact a corporate existence of which charters of incorporation were little more than a belated acknowledgement. Like probi homines, the term is not always used consistently in the sources, but the change in application is more easily perceived. Before towns acquired self-government, 'burgesses' referred to all residents who were at scot and lot - that is, contributing to the financial obligations (e.g. royal taxations) laid on the town as a whole. Following the fee farm grants, the status of burgess, with associated superior privileges related to the chartered liberties, was accorded only to those who elected to support the new local government in special ways: an immediate contribution to the borough treasury in the form of an entrance fine; and the taking of an oath to defend the borough liberties, keep secret matters discussed in assembly, and be obedient to the executive. Henceforth the term 'community' appears sometimes applied only to the freemen, but sometimes used in addition as a more comprehensive reference to all tax-paying residents. At first an inclusive term, it later came to be interpreted, as we shall see, as referring to a lower estate; the higher estate being the personnel of government, who saw themselves as the 'burgesses' of the titles of incorporation.
It can be argued that the borough community had a corporate personality long before the introduction of incorporation grants involving the Five Points: rights of perpetual succession, possession of a common seal, ownership of property, making of by-laws, suing and being sued. We have already seen that legislative power was inherent in the concept of the town council. Communal ownership of property - churches and fields within the liberty - is seen as early as Domesday; in 1200 the Ipswich community granted Odenholm meadow to the perpetual use of the portmen, as a reward for their service. The community as a whole, rather than its individual members, was responsible for paying royal taxes and the borough farm. The medieval town seal of Yarmouth was inscribed "Sigillum Communitatis de Gernemuthae", and that of Colchester "Colecestrensis sui Burgi comune sigillum"; that of Norwich, although inscribed "Sigillum Ballivorum Norwici", was on at least one occasion described as "sigillum Communitatis Norwici". The 1200 proceedings in Ipswich included the making of a common seal,
ad serviendum in grossis negociis tangentibus communitatem dicti Burgi, et eciam ad litteras inde consignandas de veritate testificandas pro omnibus et singulis Burgensibus eiusdem Burgi, et ad omnia alia facienda que fieri debeant ad communem honorem et utilitatem ville predicte;so that the seal could not be used without common consent, clavigers were appointed to have custody of the keys of the chest in which the seal and other communal treasures were kept, a constitutional feature confirmed in the 1320 ordinances.
The community was quite capable of playing the parts of plaintiff or defendant in court. In 1329 the abbot of St. John's successfully sued twenty named men and the whole community of Colchester for disseising him of land in Greenstead. The abbots' periodic legal battles with the community over jurisdiction in the hamlets surrounding the borough are well documented in the Red Paper and Red Parchment Books and in abbey records, whilst the leet records in Colchester's court rolls show, in turn, the many charges which the community brought against the abbot. In fact leet jurisdiction was concerned not so much with offences against individuals but against the community as a whole; for instance: illicit trading by non-freemen who had not purchased a licence from the community; the blocking of common ditches, thoroughfares, or the market-place with refuse; allowing one's livestock to roam freely in the streets. Also that most heinous of crimes, denying the right of every freeman to an equal share in any sale of merchandise, by forestalling the goods before they reached port or market. Thus, in 1406 Henry Bosse, John Kymberle and three other men were amerced for forestalling a cargo of fish bound for Colchester and then refusing to let any burgess have a share unless he paid them a 20d. premium, this action causing a shortage of fish at affordable prices. Again, in 1359 John Pebemarsh and five fellow-bakers were convicted of "oppressing the people" by arranging with the town millers to have their corn ground before that of the community. Forestalling was probably that much more a grievous sin for freemen than non-freemen, for in the former's case it involved breaking one's oath of loyalty to the community; which oath was intended to create a special bond of unity and mutual support between equals (pares).
As evidence that the notion of 'community' is not one imposed by the historian in retrospect, we may note a court battle of 1326 between the men of Great Yarmouth and those of Little Yarmouth and Gorleston, over market jurisdictions. The attorneys of Great Yarmouth successfully argued that their opponents ought not to be heard because they formed no community, had no common seal, and so had no communal rights, whereas Great Yarmouth had been a borough possessing such rights since Domesday.
The vehicle of expression of the will of the community was the assembly, which Mrs. Green described as "the most conspicuous, if the most unwieldy, symbol of the authority of the people." Its roots lay in the very ancient institution of the folkmoot. A Yarmouth conveyance of c.1168-75 was witnessed by "the elder and younger of the town", presumably meaning such a meeting; and in the twelfth century a communitas acting corporately to receive or make grants (pre-dating any visible city officialdom) indicates the same. But it is rare for a folkmoot to leave documentary evidence. The folkmoot always lay at the bottom level of the borough constitutional hierarchy. At Ipswich meetings took place in a court context, the Great Court alias portmanmoot, which was transmuted in the fifteenth century (as the Petty Court absorbed the purely judicial functions) into the General Court, a strictly administrative organ. At Colchester meetings were recorded amongst judicial business, but the title of "assembly" was accorded these entries. At Lynn and Norwich separate series of records were the by-product of assembly meetings, known under the title of Congregatio Communitatis, a tautological title since the two terms were effectively synonymous.
Regardless of the actual practice of government, the theory of authority deriving from the community remained in force throughout the medieval period. Although, in effect, the role of the greater part of the populace in Ipswich in 1200 may have been a passive one, the setting up of an administration took place in the context of the folkmoot, and the assent of the community - "ordinatum est per commune consilium dicte villate", "concessum est per totam Communitatem", "de communi assensu et una voce" - is clearly indispensable to the proceedings. The communal authority behind legislation is also clearly expressed in the custumal. It is seen not only with regard to legislation, but also in other matters. Particularly in the granting of taxations, and the leasing of plots of common soil and other community properties or sources of profit, always said to be made either by town officers and community or sometimes just the community. Also in the vetting of applicants for the franchise; in 1346 Richard Randolf was turned down on his first application because "communitas ipsum noluit admittere", perhaps because he had a bad reputation. Again, the mayor of Lynn was forbidden to impose taxes or make any financial commitments on behalf of the borough without the advice and consent of his comburgesses and the commons. Perhaps the best statement of the theory of community authority is found in chapter 38 of the Norwich custumal, ordaining that:
quia mercandia in civitate est et esse debet communibus communis omnibus qui sunt pares civitatis .... (it is the duty of the bailiffs to investigate and punish infringements of this equal shares principle) .... ne communitas in defectum Ballivorum remedium apponere cogatur.
Ironically, it was in Norwich that the theory was most successfully subverted. A focal point of the constitutional conflict there in the early fifteenth century stemmed from the action of the city rulers in 1380 - a secret action, without community consent, their opponents later claimed - in obtaining a grant from the king of legislative powers on the same lines as those obtained by London in 1341, but omitting the London clause requiring community assent to all legislation. This proviso was restored to Norwich's constitution by the settlement of 1415, but its effect was considerably dampened by the simultaneous introduction of the Common Council to give the assent in place of the open assembly, and by the interim strengthening of the city rulers, particularly by the incorporation charter of 1404.
<!A HREF="mc1_int.html">Structure of Borough Government<!/A> | Social and Economic Background of Office-Holders
Monopolisation of Office | Attitudes Towards Office-holding | Professionalism in Administration
Quality of Government | Conflict and Solidarity in Urban Politics
|Created: July 30, 1998. Last update: December 1, 1998||© Stephen Alsford, 1998-2003|