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On the whole, we are persuaded this work will take its place among the many valuable contributions which America has made to our law libraries ; it has been prepared with infinite care. On its arrangement, which is excellent and most easy of reference, very great labour must have been bestowed ; the typography is beautiful; it is printed, indeed, with an accuracy of which very few English books can boast. The author states his authorities with remarkable fidelity, and draws conclusions in which we should anticipate very general acquiescence in this country. In fact, almost the only blemish we have remarked, consists in occasional mistakes as to matters of practice, and of history, in regard to the English courts, etiquettes, usages ;--with one of these (which in all are very few) we will conclude. The author, in a note to his chapter -on Mandamus, referring to a case in the Queen’s Bench,‘ where the Council of a borough were ordered to pay costs, tells us, “Counsel are, in the English practice, required to pay costs occasioned by their delay!"
1 Redf., § 190, p. 445.
“ HE general outline of an urban constitution, in the earlier
days of the Saxons,” says Mr. Kemhle, “may have been somewhat of the following character :—The freemen, either with or without the co-operation of the lord, but usually with it, formed themselves into associations or clubs, called gylols. These must not be confounded either on the one side with the houses (in Anglo-Saxon, hosa), 1'. e., trading guilds, or on the other with the guilds of crafts (collegia opificum) of later ages. Looking to the analogy of the country-gylds or tithings, described in detail in the ninth chapter of the first book, we may believe that the whole free town population was distributed into such associations; but that in each town taken altogether, they formed a compact and substantial body, called in general, the Ba1'hwa1'e,and perhaps sometimes more especially the I ngang burhware, or burgher’s club. It is also certain, from various expressions in the boundaries of charters, as “ Burhware maed” (burgher’s mead), “ burhware mearc,” and the like, that they were in possession of real property as a corporate body. \Vhether they had any provision for the management of corporation revenues, we cannot tell ; but we may unhesitatingly aflirm, that the gylds had each its common purse, maintained, at least in part, by private institutions, or what we
may more familiarly term rates levied under their bye-laws.
These gylds, whether in their original nature, religious, political, or merely social unions, rested upon another and solemn principle. They were sworn brotherhoods between man and man, established and fortified by “ ath and wed,” oath and pledge ; and in them we consequently recognise the germ of their sworn communes, communoe or commaniw, which, in the times of the densest seignorial darkness, offered a noble resistance to episcopal and
baronial tyranny, and formed the nursing-cradles of popular liberty. They were alliances, oflensive and defensive, among the free citizens, and in the strict theory possessed all the royalties, privileges, and rights of independent government and internal jurisdiction. How far they could make them valid depended entirely upon the relative strength of the neighbouring lord, whether he were ealdorman, king, or bishop. When they had full power they probably placed themselves under a gerefa of their own, duly elected from among the members of their o\vn body, who thenceforth took the name of port-gerq’fa, or bm~hgerq’/'a, and not only administered justice in the burhware-m6te or busting, on behalf of the whole state, but, if necessary, led the city train-bands to the field. Such a civic-political constitution seems the germ of those later liberties which we understand by the expression, that a city is a county of itself—words once more weighty than they now are, when privilege has become less valuable before the face of an equal law. Nevertheless, there was once a time when it was no slight advantage for a population to be under a portreeve or sheriff of their own, and not to be exposed to the arbitrary will of a. noble or bishop, who might claim to exercise the comitial authority within their precincts. Such a free organization was capable of placing a city upon terms of equality with other constituted powers; and hence we can easily understand the position so frequently assumed by the inhabitants of London. As late as the tenth century, and under ./Ethelstan, a prince who had carried the influence of the crown to an extent unexampled among any of his predecessors, we find the burghers treating as power to power with the king, under their portreeve and bishop, engaging indeed to follow his advice if he have any to give which shall be for their advantage ; but, nevertheless, constituting their own worn gyldship or commune, by their own authority, on a basis of mutual alliance and guarantee as to themselves seemed good. The rights of such a corporation were, in truth, royal. They had their own alliances and feuds ; their own jurisdictions, courts of justice, and power of execution; their own markets and tolls; their own power of internal taxation; their personal freedom, with all its dignity and privileges. And to secure these great blessings, they had their own towers and walls
and fortified houses, bell and banner, watch and ward, and their own armed militia.
This picture is intended to apply to the earliest times in our
history of which we have distinct traces; but the pertinacity of our ancestors in sticking to their rights and customs, preserved the essential features of the Saxon town the same through many an age, and many a civil storm. Under the Norman kings, the old customs used “from time whereof the memory of manvran not ”—that is, anterior to all record, and only resting upon tradition from father to son—were clung to with invincible determination, and the towns continued to extract from one monarch after another, charters by which these customs were recognised and confirmed. Slight changes may from time to time have crept in as the altered state of circumstances required. Under the Norman kings new conditions arose; and the retention of the old rights and privileges was sometimes bought by submission to the general regulations which these monarchs imposed. The old language gradually changed, and legal terms of French origin, were introduced in the place of the vernacular Saxon ones, of which the meaning was frequently lost even when the words themselves were retained. But substantially it would seem that the towns resolutely maintained their ancient usages and modes of procedure ; and thus the municipal regulations of a borough in the fourteenth century may be considered as no very distant likeness of those of the ninth or tenth.
With the Reformation very considerable changes took place, and during the sixteenth and seventeenth centuries the circumstances of the borough towns were greatly altered. Places which had been once‘ flourishing emporiums of trade, sunk into poverty and insignificance; and the memorials of their former greatness only remained in a few old records, and the right which they still retained of being represented in parliament.
The Cinque Ports—that is, the towns of Dover, Hastings, Sandwich, Hithe, and Romney, with their members or adjacent towns, Rye, Winchelsea, and others of smaller note, are examples of this mutability of mundane affairs. These towns once formed a little confederacy of republics, each governed by its own customs and laws, and all banded together to resist the encroachments of external powers, whether seignorial, episcopal, or regal. Few of them now retain any outward marks of their former importance. Of most of these places the custumals and records have been preserved. In Lyon’s History of Dover Castle, the custumals of Dover, Sandwich, Hastings, Hithe, and Romney, are given in English, from manuscripts of the sixteenth century. That of Romney seems to have been made from an original of an earlier date than the rest, and has been transcribed or translated by some one who did not entirely comprehend the meaning of his text, as mistakes and obscurities occur. The Tudor period had already set in, and the old French terms were beginning to become obscure when this translation was made.
We have lately fallen upon a copy of the custumal of this town (unfortunately imperfect) in its original French. It is contained in the Registrum of Daniel Roughe, town-clerk of the jurats of Romney, from the twenty-seventh year of Edward III. (A. D. 1353) until the fourth year of the reign of Richard II., a MS. which furnishes a mass of formularies of all sorts in use in the fourteenth century. The volume containing this'curious record is preserved in the library of St-. Catherine’s Hall, Cambridge. We propose to present our readers with a copy of as much of the custumal as is preserved, and some of the forms of procedure, which together give a lively picture of Romney in its best days, when it was a flourishing port, and a leading member of the little group of towns which once were looked upon as the guardians of England against the attacks of France.
We have endeavoured to make our translation as literal as
possible, and we have placed the original French on the opposite page.