to the townspeople, they were not suffered to do much harm to the course of the common law. The criminal justice, too, extended merely to the punishment of criminals caught in the act, and the boroughs had to appear before the King's justices in eyre, which they did by twelve of their own men. Later, they had the right of 'the return of writs. The people, also, held their lands at money rents. Mesne tenures were reduced in boroughs to political insignificance, a development dangerous to feudalism. The seignorial court gave way to the 'court leet' and the 'court baron.' On a few points of private law the boroughs would swerve from the ordinary rules, as the giving the whole tenement to the younger son by 'borough English.'1 The serf who has become a burgess or a member of a merchant gild becomes free. They were 'quit of toll' and had mercantile privileges. They might farm the borough, hold it in fee farm, that is, under a perpetual lease, a long step towards independence."2

An examination of the records by a great authority shows that the municipal liberties asserted by the boroughs caused the adoption of the jury and a uniform system of common law throughout England. This was brought about by pressure in opposite directions; first, the burgesses asserted the right to trial by jury as against the ordeal, the duel, and compurgation, and, second, the visitations of the itinerant justices were rendered less irksome by the substitution of trial by jury and the extension of municipal jurisdiction. The burgesses and the king's judges adopted

The observance of this borough law was based upon respect for a custom which had become a rule of property (amounting perhaps to a covenant) whereby rights were vested.

? Pollock and Maitland, I, 552, 617, 663, quoting Madox, Firma Burgi, chap. v.

the maxim: lex non jaceat sed inquisitio fiat.1

The

common law, as well as the institutions which it developed, or in the midst of which it grew up, is pervaded by a spirit of freedom which distinguishes it from all other systems, and peculiarly adapts it to the institutions of a self-governed people.'

"2

§ 15. THE MUNICIPAL CORPORATION HOLDS FRANCHISES AS A TRUST FOR ITS MEMBERS. "To whom were these franchises given and in whom do they inhere? They are given to the citizens, men, burgesses of a certain place and their heirs. Were they given (1) to each person in severalty? (2) Jointly or in common; i.e., to all with. survivorship whether to the individual representative or to the surviving fellow? (3) To an ideal person? The real difficulty will be seen by comparing a borough charter with the other instruments. First, the Abbot and Convent of Malmesbury grant land 'to the men who have taken it of our house for the purpose of building houses to hold to them and their heirs of our said house forever.' There is to be no corporation, no co-ownership, no common enjoyment. It is not to be a borough. Second, King John would have it known that he has granted to his men of Cornwall that certain moors shall be disafforested and that the said men may hunt thereon; also that without their consent their serfs shall not be received into the liberties of the king's boroughs; also that the fees of the honour of Mortain (which are small) shall not pay the full rate of scutage. 'Therefore,' he says, 'we will that the said men of Cornwall and their heirs shall hold all the premises of us and our heirs with all liberties and free customs.' The third charter is one by which this same King John made a

1 See the learned article, entitled "Modes of Trial in the Mediaval Boroughs of England," by Prof. Charles Gross, XV, Harvard Law Review, 691-706.

2

John F. Dillon, Laws and Jurisprudence of England and America, 157.

grant to all the freemen of England and their heirs; it is no other than what will be known for all time as the Great Charter. At the end of its famous clauses we read how all the men of England are to have and hold these liberties to them and their heirs of King John and his heirs forever.1

"Now, these last two instruments, the Cornish Charter and the Great Charter, are in form just like an ordinary borough charter. The King grants 'libertates' to the men of Nottingham, the men of Cornwall, the men of England and their heirs. In what mode do the grantees hold their liberties? Does each 'man' acquire a several right to be enjoyed in severalty? Do all the men become tenants, or, again, is the true recipient of the grant a fictitious person, a corporation? The form of the Great Charter and the Charter of the men of Cornwall compel us to say that these questions have not yet been fairly faced. If we take the Great Charter and work out any theory as to its grantees and the mode in which they received the boon, we are brought to absurdities. The modern Englishman who would take advantage of its provisions must show himself heir or assign (if such liberties be alienable) of some who lived in 1215; or if a clause of the charter be broken, then either all Englishmen must join in an action against the offender or the corporation of England must appear by its attorney. There remains the possibility that it is a gift to uncertain persons, to all and singular who at any time shall answer the description 'men of the realm of England'; but is such a gift conceivable?

"It may be replied that Magna Charta, whatever its form may be, is in substance no deed of grant but a great code of laws. That is very true, but the facts remain that the form of this solemn instrument is that of a deed of grant. That was the form which to the prelates, clerks,

1 Pollock and Maitland, I, 658, ff.

and lawyers of the time seemed the most apt for the purpose. The king was to grant liberties to the men of England as he had granted them to the men of Cornwall and the men of London. Or, let us look at the other side of this similitude. Henry III, if he grants liberties to the men of Nottingham, will execute an instrument whose jural form will be exactly the same as that of the charters that he seals in favor of the men of England. This makes the borough of Nottingham look, not like a corporation, but merely like a portion of the earth's surface within which certain laws are to prevail.

"But a time would come when the townsfolk would perceive that they had enviable liberties that were conmunicable to others, that they could make burgesses out of non-burgesses. Thus the apparent communalism of old times covers an individualism which has deep and ancient

Every right, every duty, however communal its character, spontaneously becomes the right, the duty of an individual by attaching itself to the land that he holds. Yet, the community is a community because it is a subordinate of a greater community, of a nation. In taking leave of the 'communities of the land' we will once more lay stress upon their royal and therefore their national character. The nation is not a federation of communities, nor is it a hierarchy of lords and vassals; the king is above all and has a direct hold of every individual. The communities of the land are far more often the bearers of duties than of rights; they appear before the law courts as punishable units. The civic corporation has become a corporation because it purchased regal franchises; the proudest city will lose its liberties if it exceeds or abuses those powers that are given to it from above. But above the king himself, is the greatest of all communities - the university of the realm. "

1 End of Vol. I, Pollock and Maitland, I, 678.

§ 16. THIS TRUST IS FOR THE BENEFIT OF ALL CITIZENS OF THE UNITED STATES.- Self-government exists, then, within territorial corporations. As to internal affairs, the corporation is independent within the limits of the Constitution of the United States and the limitations self-imposed by grants to State governments expressed in the State constitutions; as to its collective action, it is governed by the general law of the sovereign just as any other corporation or individual. A true notion of the relation of independence and law as regards municipalities at the present time may be given by a comparison of a city under the ancient idea of nationality, and a city under the modern idea. Fustel de Coulanges, the great authority upon "The Ancient City," presents one side of the question as follows:

"What has now been said concerning the institutions of the ancients and especially that about their religious beliefs, gives us an idea of the great difference that always existed between two cités. However near to one another in situation, they always formed two completely separate societies. Between them there was much more than the distance which separates two towns, much more than the frontier that divides two states; their gods were not the same, nor their ceremonies, nor their prayers. The religion of one 'cité' was forbidden to the citizen of the next 'cité.' It was believed that the divinities of one town would receive the homage and prayer of none but denizens.

"1

The cité was thus delimited by that most resisting of barriers, religious sentiment. The people of one town were not bound by the ties which, now being lost in practical identity of conditions, are not taken

1 Chap. xiv, p. 237.