International Law Research; Vol. 2, No. 1; 2013 ISSN 1927-5234 E-ISSN 1927-5242 Published by Canadian Center of Science and Education Liberties and Customs of the City of London – Are There any Left? Graham S McBain1 1 Solicitor. MA (Cantab), LLB (Cantab), LLM (Harv). Open Scholar, Peterhouse, Cambridge. Fulbright Scholar, Harvard Law School. Correspondence: Graham S McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: August 23, 2012 Accepted: December 17, 2012 Online Published: July 5, 2013 doi:10.5539/ilr.v2n1p32 URL: http://dx.doi.org/10.5539/ilr.v2n1p32 Abstract The ‘City of London’ is famed throughout the world. However, few people realise that, today, it is actually very limited in physical ambit (to the ‘Square Mile’). And, that it is not the same as the city of London as such. Nor, that it’s mayor (the Lord Mayor of the City of London) is not the same as the Mayor of London (currently, Boris Johnson). However, the City of London is governed by a series of charters from c. 1132. Charters in which sovereigns of England - in return for generous loans and sums of money - granted to the City of London many Crown prerogatives (privileges). These charters were to be replicated in numerous other charters granted to cities, boroughs and towns throughout England in the ensuing centuries. This article argues that - in modern times - we need modern law. Law that is understandable to laymen as well as lawyers. It also argues that all these charters granted to the City of London are palpably obsolete and should be cancelled. If so, then so should those charters granted to cities, boroughs and towns. In this way, much obsolete law will be removed and the law made more intelligible. This can only be to the common good. Keywords: crown prerogatives, franchise, city of London, charters, customs Introduction The City of London (the City) has had a long - but not necessarily amicable - historical association with the Crown. In times past, as well as being the capital of the country and the power base of English sovereigns, London was a fruitful source of funds for impecunious monarchs.1 In turn, its citizens often supported political factions which opposed the sovereign - especially when the occupant of the throne was rapacious. However, despite political differences, there remained a certain mutuality of relationship since, in exchange for frequent loans and gifts of money, the City would often receive specific Crown privileges not given to their fellow countrymen. These privileges were usually termed ‘liberties’ or ‘franchises.’2 The grant of liberties pre-dates the Norman conquest of 1066. The nature of some of these liberties are now lost in the mists of time; others are referred to in Crown charters and patents granted to the City.3 These liberties were jealously guarded by the citizens of London and, in return for money, sovereigns were usually happy to confirm them. Some sovereigns were also happy to seize the liberties of London back into their hands should the City incur their displeasure. Over time, many of the ‘liberties’ 1 Bohun (1723), pp x-xv list the sums ‘exacted, and I may say extorted from the city and citizens of London, under the pretence of granting their charters or confirming or restoring their rights and liberties.’ The reference to the ‘City’ is used in this article to refer - in short form - to the ‘mayor, commonalty and citizens of the City of London’ (also often referred to, from the 19th century onwards, as the Corporation of London). See also Halsbury Laws, 29 (2), para 40. 2 Blackstone (1765-9), vol 2, p 37, ‘Franchise and liberty are used as synonymous terms: and their definition is, a royal privilege, or branch of the king’s prerogative, subsisting in the hands of a subject.’ Chitty (1820), pp 118-9, ‘The jura coronae or rights of the Crown, so long as they are attached to the king, are called prerogatives; but when such prerogatives are delegated to a subject, they acquire the appellation of franchise; for all franchises are derived from the king.’ 3 Texts on the City include: Allen (1858); Anon (1765); Arnold (1811); Birch (1884); Bohun, n 1); Calthrop (1670); COL (1953); Gomme (1907); Inwood (1998); Jacob (1732); LL (1680); Luffman (1793); Maitland (1756); Noorthouck (1773); Norton (1869); Page (1929); Pulling (1854); Riley (1859-62); Riley(1868); Riley (1863); Round (1899); Sharpe (1899, editor of the ‘Letterbooks’); Stow (1965); Stubbs (1966); Thomas (1924-61). See generally, Sweet & Maxwell (1955). 32 www.ccsenet.org/ilr International Law Research Vol. 2, No. 1; 2013 granted to the City were extended to others - to the Cinque Ports,4 to boroughs5 and towns, as well as to individuals landowners. In modern times, it is important for English law to be more accessible to the general public and to reflect prevailing social conditions. The purpose of this article is to analyse the liberties and customs of the City and to identify the extent to which they are now obsolete. Also, to consider whether the many charters granted to the City are still needed - or whether they have done their job and they can be cancelled. In respect of the liberties of the City, it should be noted that, today, they only extend to the ‘Square Mile’6 - a small geographical part of the vast conurbation that presently comprises the capital.7 Thus, what was once granted to all the citizens of London now only applies to a tiny proportion of its inhabitants, an important factor to be bourn in mind. When analysing the liberties granted to the City, reference may be made to legal texts on constitutional law8 as well as to those on legal history.9 Also, to the abridgments (major10 and minor11) as well as to authors such as Coke12 and Blackstone.13 Much useful material is contained in number of older texts on the laws, customs, rights and privileges of the City.14 The liberties granted to the City in charters from various sovereigns (see Appendix) as well as those arising from custom, fit into certain general categories. They may be summarised as follows: Taxes and Tolls. The City obtained exemption from various taxes (scot and lot, danegeld) as well as fines (murdrum, childwite, jeresgive, scotale, miskenning). It also gained the right to pay the same tallage and aids as other citizens as well as an exemption from tolls and a maximum sum for amercements; Judicial Rights. The City obtained the right to be tried by their own courts, that is, ‘within the walls’. Also, freedom from ‘wager by battle’ as well as the rights of infangthef, outfangthef, escheat, waifs, estrays and treasure trove. Also, certain legal rights distinct from the common law in respect of: lands, promises, debts, wills as well as orphans, apprentices, feme sole, hostlers and defamatory words. The mayor and aldermen obtained the right to be justices of the peace (JP’s) and the mayor, a justice of goal delivery and of oyer and terminer; War and Billeting. The City obtained exemption from being compelled to provide troops for war outside the City and to be free of billeting; Officials. The City obtained the right to appoint a mayor, sheriffs, chamberlain, common clerk and common sarjeant. Provision was also made for the annual election of aldermen; Offices of the Mayor. The mayor obtained the offices of : escheator, bailiff of the Thames, admiral of the port of London, clerk of the market, keeper of the great beam, gauger of merchandise, outroper, coroner, registrar of pawns, custodian of Bedlam, assistant to the butler at the coronation and lord lieutenant; Merchants and Markets. The City obtained the right to impose various restrictions on merchants as well as brokers. Also, the right to have: their own clerk of the market, courts of piepowder, market overt and freedom for purveyance. Further, the ability to impose: charges on the weighing, carriage, survey (ie. inspection) and the measurement of goods and coals; 4 McBain (2011a). 5 Ballard(1913), pp 180-94; Ballard & Tait(1923); Weinbaum(1943); Madox (1989); Bateson (1904-5); Brady (1711) and Cam (1957). 6 The Square Mile comprises an area of 1.12 sq km (including Middle and Inner Temple and the river Thames adjoining, to the middle of the river, for certain purposes).This area can be altered under the Local Government Act 1992 and it is to be noted that the physical parameters of the City have undergone many charges over the centuries (including in 1994).The Square Mile is administered by the Corporation of London and has a resident population of c.10,000. It is divided into 25 wards for electoral puposes. See Halsbury, n 1, vol 29(2), para 31. 7 Greater London comprises the city and 32 London boroughs. It has an area of 607 sq miles and a population of c. 7.7m (2009). It is administered by the Greater London Authority and has a directly elected mayor (not to be confused with the lord mayor of the City of London). See Halsbury, n 1, vol 29(2), para 34. 8 Anson (1935); Barendt (1998); Bradley & Ewing (2006); De Smith & Brazier (1998); Dicey (1948); Phillips & Jackson (2001); Le Sueur & Sunkin (1997); Jennings (1959); Marshall (1971); Sunkin & Payne (1999). 9 Brougham (1861); Hallam (1897); Jolliffe (1948); Keir & Lawson (1979), ch 2 (intro); Maitland (1963); Petit-Dutaillis & Lefebre (1930); Robertson, (1935); Stubbs (1883); Taswell-Langmead (1960); Thomson (1938); Wilkinson (1958). See also Allen (1849). 10 Brooke (1586); Fitzherbert (1577); Rolle (1668); Statham (c. 1490). 11 Bacon (1798); Comyns (1822); D’Anvers (1725-37); Hughes (1660-3); Lilley (1765); Nelson (1725-6); Sheppard (1759); Viner (1741-57).