How far effective.

contrary to the tenor of their ancient franchise, they exacted toll from men of the county, who bought corn and other victuals for their household store1. Sometimes the scope of the privilege was expressly limited in the charter itself: the Conqueror issued a precept that all things which the monks of Abingdon bought ad victum were to be free from toll and custom 2.

The question of toll and custom is one of fundamental importance in the history of mediaeval commerce. Its exact economic significance lies in this: the immunity of outsiders from the payment of toll facilitated the growth of commercial intercourse, encouraged the development of internal trade, curtailed the monopoly of the gild-brethren, and finally helped to break down the custom barriers of the boroughs, thus paving the way for national economic unity. On this account it is important to decide how far the privilege was respected in everyday practice, and to what extent it succeeded in placing real limits to burghal exclusiveness. It has been said that the words of the charter conferring freedom from toll had but little immediate result, and were practically meaningless 3. But there is abundant evidence to prove that the privilege did not remain a dead letter. In 1301 the city of London was ordered to restore to certain burgesses of Oxford their merchandise upon which the citizens had distrained for toll," and to cease to demand such toll in future, inasmuch as burgesses of Oxford were by charter quit of all toll throughout the realm "4. A parallel instance is that of Andover in 1312, and of Ipswich in 13175, while in 1318 Reading also established its claim before the mayor of London in virtue of a charter granted as recently as 12536.

1 Rot. Hund. i. 12 b.

2 Davis, Regesta Regum, i. 54. But the distinction was not always enforced; see Oak Book of Southampton, ii. 47-53.

3 Ashley, Economic History, ii. 44.

4 Letter Book C, 106. Oxford again asserted its freedom from toll in 1330: Collectanea (Oxford Hist. Soc.), iii. 131.

Letter Book D, 299 (Andover); Bacon, Ipswich, 53 (also p. 184 for 1512). Records of Reading, i. 283. In 1347 it renewed its claim: Letter Book F, 176. The Cinque Ports made good their claim to exemption (1516) Jeake, Charters, 8. For Exeter's claim, as a town of Ancient Demesne, see Select Cases in the Star Chamber, i. 71 seq.

Nor did the city of London stand alone in acknowledging the trading immunities of merchant strangers; there are numerous instances at Colchester and other towns1. In 1493 disputes arose between Bristol and Coventry; the former admitted the right of Coventry to be quit of ordinary tolls, but charged' quayage' on the ground that the quay was of recent construction and therefore the tax was not included in their exemption 2. It is clear, then, that immunity from toll was no barren or paper concession devoid of all relation to the realities of commercial life. Indeed at Norwich in 1289 a burgess was punished, because of his own accord he gave toll and custom in markets and fairs "contrary to the liberty of the city"". A few years later (1313), distraint taken from certain citizens of Norwich at Boston fair on account of their refusal to pay toll was restored upon the production of their charter 4. We have already seen how steadfastly the citizens of London adhered to their privileges at the fairs of Bury St. Edmunds and Waltham, and there are other examples 5. Nor is it possible to agree that the exercise of the privilege always depended upon the priority of the grant. In the thirteenth century the question was still unsettled, but subsequently even where a borough was able to urge an older charter in support of its trade monopoly, it was usually compelled to recognize the validity of charters conferred at a later date. The men of Marlborough were declared to be free of toll and custom in Southampton, "notwithstanding that the charter of the men of Southampton is older than the charter of the men of Marlborough "". Eton College founded by Henry VI. claimed to be quit of toll in Bristol, whose charter was granted by Henry II. London, whose privileges dated from

1 Colchester: Red Paper Book, 17, 60, 97, 102. Bristol Little Red Book, ii. 199, and following note. Torksey: Records of Nottingham, i. 139. 2 Coventry Leet Book, ii. 549-552. For the settlement: ibid. iii. 599. 3 Hudson, Leet Jurisdiction in Norwich, 29.

4 Records of Norwich, ii. 327.

5 Supra, p. 220. See also Select Cases in the Star Chamber, i. 36.

This was the legal view: Bracton, f. 56 b, f. 58; Fitzherbert, Natura Brevium, 518 (note c). Similarly, Gross, Gild Merchant, i. 44 (n. 6). The cases in Bracton's Note-Book dealing with the exaction of tolls are: vol. ii. pp. 14, 121; iii. 141, 559. 7 Charter Rolls, i. 244 (1239).

8 Little Red Book of Bristol, ii. 232. At Yarmouth, which claimed to

Immunity conceded in actual practice.

the twelfth century, acknowledged those of Reading, which belonged to the thirteenth. Indeed, if the date of the charter determined the validity of the grant, London whose charter was the oldest in England could have taken toll from every town in England. But though some charters expressly contain a clause, "saving in all things the liberties of the city of London "1, many towns, as we have seen, were allowed to go toll-free in London itself.

It would be easy to multiply proofs in support of the contention here advanced that the privilege of exemption from toll was a real one. It was usual for burgesses and men of religion travelling in other towns to carry with them letters or memoranda of their claims to immunity from custom, and these were often entered upon the town records as evidence. The Oak Book of Southampton contains mention of over forty boroughs enjoying immunity from toll, and a long list is also inserted among the records of Bristol and Yarmouth 2. Many of the charters, it may be added, are of more recent date than those of Southampton, Bristol or Yarmouth. Examples of the passports carried by burgesses are found at Leicester and Northampton 3. Their purpose was to prevent false claims on the part of non-burgesses, and they serve to show that discrimination in the levy of tolls was made as a matter of course between those who were qualified for exemption, and those who were not. The distinction is implied in John's charter to Chesterfield, where toll was allowed to be taken in the markets from those who had no franchise (libertates) 4. Again, many boroughs were protected from infringement of their charters by the right to make reprisals; they were definitely empowered to distrain upon the goods of traders

impose toll by virtue of a charter from John, the men of Grimsby were allowed to go free of toll by virtue of a grant from Edward II.: Swinden, Antiquities of Yarmouth, 28.

1 Birch, Charters of Lincoln, 7. For Stafford, infra, p. 259.

Oak Book of Southampton, i. 6-21; Little Red Book of Bristol, ii. 132, 199, 211, 232 seq.; Swinden, Antiquities of Yarmouth, 28 seq.

3 Records of Leicester, ii. 230 (1420), iii. 191; Records of Northampton, i. 378-380. At Colchester (1491) Billericay men presented letters and were excused toll: Red Paper Book, 97.

4 Yeatman, Records of Chesterfield, 25.

де

domiciled in their midst, who came from the town where toll had been taken. Henry I.'s charter to London contained the passage that "if any one take toll or custom from the citizens of London, the citizens of London shall take in the city from the borough or town where the toll was taken as much as the Londoner gave for toll "1. Accordingly, in the fourteenth century we find many letters addressed by London to the authorities of provincial towns threatening to take ' withernam', that is, to seize the goods of their citizens whenever they repaired to London, unless they restored the toll they had taken 2. The right of withernam' was also conferred on many other towns, Northampton, Yarmouth, Lincoln, Dublin, Colchester 3. These concurrent indications all bear out the view that exemption from toll was a normal and familiar practice. Equally also they afford a strong presumption that the degree of internal free trade enjoyed by English merchants and others in the Middle Ages has been unduly minimized.

of the

nominal.

Dr. Gross has taught us to recognize as the essence of Monopoly the gild merchant the exclusive right of its members to gildsmen trade within the borough. But the conviction is forced often only upon us that the monopoly of the gildsmen must often have tended to be more nominal than real. One example may serve to show how the monopoly was apt to work out in practice. In 1280 a burgess of Stafford brought a lawsuit against the town of Newcastle-under-Lyme, because it had taken from him four ells of cloth in which he was trading in Newcastle. The defendants pleaded that burgesses of Newcastle alone were entitled to cut cloth or keep open shop within their town. The plaintiff rejoined that "all the burgesses of Stafford possess all liberties and free customs the same as any other burgess of England, saving within the city of London "; judgment was therefore given in his

1 Liebermann, Gesetze, i. 525.

* R. R. Sharpe, Calendar of Letters (1885), passim. See also infra, P. 274. For a letter from Rye to the authorities of Hull (1580), see Jeake, Charters of the Cinque Ports, 57.

3 (i.) Northampton: Select Civil Pleas, i. No. 27. (ii.) Yarmouth: Rymer, Fadera, i. part i. 100. (iii.) Birch, Charters of Lincoln, 4. (iv.) Gilbert, Documents of Ireland, 53. (v.) Benham, Charters of Colchester, 2.

Communal

bility for

debts.

favour1. Approached from this fresh standpoint, the merchant gild does not appear quite in the old light, and its claims when put to the test of law and economic practice seem to undergo an appreciable shrinkage.

We have seen how the trading community of every responsi borough enjoyed extensive privileges which served to strengthen the solidarity of its members; on the other hand, it was burdened with corresponding obligations. In each town the merchants formed a close corporation 2 sharing mutual responsibilities and common liabilities; in particular they were held responsible for debts contracted by any of their fellowship in the way of his trade. Early in the twelfth century the city of London acquired the right to distrain on the fellow-townsmen of defaulting debtors 3. Gradually the privilege of withernam' was extended to other towns 4; but it was always conferred by charter, an indication that strictly it was an exceptional and not a normal part of the ordinary municipal franchise. In any case it clearly became the general practice, and most towns probably had recourse to it either in virtue of a charter or by usurpation. It has been supposed that this system of reprisals originated in the idea that a community was under a certain liability or guarantee for the debts of traders who belonged to it 5. But it appears more likely that the practice gained ground as the only possible method of impressing upon the debtors' court elementary notions of right and wrong, and its duty to deal justice to the stranger. This is shown by a passage in the Leicester custumal, where it is distinctly stated that they were "wont to distraint neighbour for neighbour in order to produce" the debtor. In this respect the system of intermunicipal reprisals is analogous to that of modern international reprisals, and the individual who

1 Banco Roll, Mich. 8-9 Edw. I.; Wm. Salt Archæol. Soc. vi. part i. III. 2 Cf. Fleta (ed. 1647), c. 63, § 4: quod erant tali debitori affines, ut de una societate, vel civitate ". Liebermann, Gesetze, i. 525.

▲ Benham, Charters of Colchester, 2; Charter Rolls, i. 158 (Waterford); Gilbert, Documents of Ireland, 52 (Dublin), 94 (Drogheda). See also Borough Custumals, i. 120 for other examples.

5 Maitland in Cambridge Borough Charters, p. xix.

6 Records of Leicester, i. 163.

'Gierke, Genossenschaftsrecht, cit. Select Pleas in Manorial Courts, i. 135.