Part 26

Of anything that could be called the constitution of the boroughs, next to nothing can we learn. We may take it that in most cases the king's farmer was the sheriff of the shire; in some few cases, as for example at Hereford, the reeve of the borough may have been directly accountable to the king[807]. We know no proof that in any case the reeve was an elected officer. Probably in each borough a court was held which was a court for the borough; probably it was, at least as a general rule, co-ordinate with a hundred court, and indeed at starting the borough seems to be regarded as a vill which is also a hundred[808]. The action of this court, however, like the action of other hundred courts, must as time went on have been hampered by the growth of seignorial justice. The sake and soke which a lord might have over his men and over his lands were certainly not excluded by the borough walls. He had sometimes been expressly told that he might enjoy these rights 'within borough and without borough.' It is difficult for us to realize the exact meaning that 'sake and soke' would bear when ascribed to a prelate or thegn who had but two or three houses within the town. Perhaps in such cases the town houses were for jurisdictional purposes deemed to be situate within some rural manor of their lord. But in a borough a lord might have a compact group of tenants quite large enough to form a petty court. In such a case the borough court would have the seignorial courts as rivals, and many a dispute would there be. At Lincoln one Tochi had a hall which undoubtedly was free 'from all custom'; but he had also thirty houses over which the king had toll and forfeiture. So the burgesses swore; but a certain priest was ready to prove by ordeal that they swore falsely[809]. In these cases the lord's territory would appear in later times as a little 'liberty' lying within the borough walls. The middle ages were far spent before such liberties had become mere petty nuisances[810]. In the old cathedral towns, such as Canterbury and Winchester, the bishop's jurisdictional powers and immunities were serious affairs, for the bishop's tenants were numerous[811]. Nevertheless, in the great and ancient boroughs, the boroughs which stand out as types and models, there was from a very remote time a court, a borough-moot or portman-moot, which was not seignorial, a court which was a unit in a national system of courts.

[The borough court.]

Of the form that the borough court took we can say little. Perhaps at first it would be an assembly of all the free burg-men or port-men. As its business increased in the large boroughs, as it began to sit once a week instead of thrice a year, a set of persons bound to serve as doomsmen may have been formed, a set of aldermen or lawmen whose offices might or might not be hereditary, might or might not 'run with' the possession of certain specific tenements. A 'husting' might be formed, that is, a house-thing as distinct from a 'thing' or court held in the open air. Law required that there should be standing witnesses in a borough, before whom bargains and sales should take place. Such a demand might hasten the formation of a small body of doomsmen. In Cambridge there were lawmen of thegnly rank[812]; in Lincoln there were twelve lawmen[813]; in Stamford there had been twelve, though at the date of Domesday Book there were but nine[814]; we read of four _iudices_ in York[815], and of twelve _iudices_ in Chester[816]. So late as 1275 the twelve lawmen of Stamford lived on in the persons of their heirs or successors. There are, said a jury, twelve men in Stamford who are called lawmen because their ancestors were in old time the judges of the laws (_iudices legum_) in the said town; they hold of the king in chief; by what service we do not know; but you can find out from Domesday Book[817]. Over the bodies of these, presumably Danish, lawmen there has been much disputation. We know that taken individually the lawmen of Lincoln were holders of heritable franchises, of sake and soke. We know that among the twelve _iudices_ of Chester were men of the king, men of the earl, men of the bishop; they had to attend the 'hundred,' that is, we take it, the borough court. We know no more; but it seems likely that we have to deal with persons who collectively form a group of doomsmen, while individually each of them is a great man, of thegnly rank, with sake and soke over his men and his lands; his office passes to his heir[818]. On the whole, however, we must doubt whether the generality of English boroughs had arrived at even this somewhat rudimentary stage of organization. In 1200 the men of Ipswich, having received a charter from King John, decided that there should be in their borough twelve chief portmen, 'as there were in the other free boroughs in England,' who should have full power to govern and maintain the town and to render the judgments of its court[819]. Now Ipswich has a right to be placed in the class of ancient boroughs, of county towns, and yet to all appearance it had no definite class of chief men or doomsmen until the year 1200. Still we ought not to infer from this that the town moot had been in practice a democratic institution. There may be a great deal of oligarchy, and oligarchy of an oppressive kind, though the ruling class has never been defined by law. Domesday Book allows us to see in various towns a large number of poor folk who can not pay taxes or can only pay a poll tax. We must be chary of conceding to this crowd any share in the dooms of the court[820].

[Definition of the borough.]

But what concerns the government of the boroughs has for the time been sufficiently said by others. In our few last words we will return to our first theme, the difference between the borough and the mere township.

[Mediatized boroughs.]

We have seen that in Domesday Book a prominent position is conceded to certain towns. They are not brought under any rubric which would place them upon the king's or any other person's land. It must now be confessed that there are some other towns that are not thus treated and that none the less are called boroughs. If, however, we remember that burgesses often are in law where they are not in fact, the list that we shall make of these boroughs will not be long. Still such boroughs exist and a few words should be said about them. They seem to fall into two classes, for they are described as being on the king's land or on the land of some noble or prelate. Of the latter class we will speak first. It does not contain many members and in some cases we can be certain that in the Confessor's day the borough in question had no other lord than the king. Totness is a case in point. It now falls under the title _Terra Judhel de Tottenais_; but we are told that King Edward held it in demesne[821]. In Sussex we see that Steyning, Pevensey and Lewes are called _burgi_[822], Steyning is placed on the land of the Abbot of Fécamp, Pevensey on that of the Count of Mortain and Lewes on that of William of Warenne; but at Lewes there have been many haws appurtenant to the rural manors of the shire thegns[823]. In Kent the borough of Hythe seems to be completely under the archbishop[824]. He has burgesses at Romney over whom he has justiciary rights, but they serve the king[825]. The 'little borough called Fordwich' belonged to the Abbot of St Augustin. But of this we know the history. The Confessor gave him the royal two-thirds, while the bishop of Bayeux as the successor of Earl Godwin gave him the comital one-third[826]. Further north, Louth in Lincolnshire and Newark in Nottinghamshire seem to be accounted boroughs; they both belong to the bishop of Lincoln; but in the case of Newark (which was probably an old _burh_) we may doubt whether his title is very ancient[827]. We are told that at Tatteshall, the Pontefract of later days[828], there are sixty 'minute burgesses,' that is, we take it, burgesses in a small way. Ilbert de Lacy is now their lord; but here again we may suspect a recent act of mediatization[829]. Grantham in Lincolnshire is placed on the Terra Regis; it had belonged to Queen Edith; there were, however, seventy-seven tofts in it which belonged to 'the sokemen of the thegns,' that is, to the sokemen of the thegns of the shire[830]. Then in Suffolk we see that Ipswich is described at the end of the section which deals with the royal estates; a similar place is found for Norwich, Yarmouth and Thetford in the survey of Norfolk[831]. But for Dunwich we must look elsewhere. There were burgesses at Dunwich; but to all seeming the royal rights over the town had passed into the hands of Eadric of Laxfield[832]. The successor of the same Eadric has burgesses among his tenants at Eye[833]. There are burgesses at Clare, though Clare belongs altogether to the progenitor of the lordly race which will take its name from this little town[834]. But at least in this last case, the burgesses may be new-comers, or rather perhaps we may see that an old idea is giving way to a newer idea of a borough, and that if men engaged in trade or handicraft settle round a market-place and pay money-rents to a lord they will be called burgesses, though the town is no national fortress. At Berkhampstead 52 burgesses are collected in a _burbium_, but they may be as new as the two _arpents_ of vineyard[835]. We must not say dogmatically that never in the days before the Conquest had a village become a borough while it had for its one and only landlord some person other than the king, some bishop, or some thegn. This may have happened at Taunton. In 1086 there were burgesses at Taunton and it enjoyed 'burh-riht,' and yet from a very remote time it had belonged to the bishops of Winchester. But the cases in which we may suppose that a village in private hands became a _burgus_ and that this change took place before the Norman invasion seem to be extremely few. In these few the cause of the change may have been that the king by way of special favour imposed his _burhgrið_ upon the town and thereby augmented the revenue of its lord[836].

[Boroughs on the king's land.]

As to the boroughs that are regarded as standing on the king's land, these also seem to be few and for the more part they are small. There are burgesses at Maldon[837]; but Maldon is not placed by the side of Colchester[838]; it is described among the royal estates. There are burgesses at Bristol[839]; but Bristol is not placed beside Gloucester and Winchcombe. Perhaps we should have heard more of it, if it had not, like Tamworth, stood on the border of two counties. In the south-west the king's officials seem to be grappling with difficulties as best they may. In Dorset they place Dorchester, Bridport, Wareham and Shaftesbury above the rubric _Terra Regis_[840], and we can not find that they reckon any other place as a borough. In Devonshire we see Exeter above the line; Lidford and Barnstaple, however, are called boroughs though they are assigned to the king's land, and (as already said) Totness is a borough, though it is mediatized and is described among the estates of its Breton lord[841]. No borough in Somerset is placed above the line, though we learn that the king has 107 burgesses in Ilchester who pay him 20 shillings[842], and that he and others have burgesses at Bath[843]. Perhaps the space that stands vacant before the list of the tenants in chief should have been filled with some words about these two towns. Axbridge, Langport and Milborne seem to be boroughs; Axbridge and Langport occur in that list of ancient fortresses which we have called The Burghal Hidage[844]. Wells was an episcopal, Somerton a royal manor; we have no reason for calling either of them a borough. In Hampshire another of the ancient fortresses, Twyneham (the modern Christ Church) is still called _burgus_, but seems to be finding its level among the royal manors[845]. In Wiltshire Malmesbury and Marlborough are placed above the line. We learn that the king receives £50 from the _burgus_ of Wilton[846], and we also learn incidentally that various lords have burgesses in that town; for example, the bishop of Salisbury has burgesses in Wilton who belong to his manor of Salisbury[847]. Old Salisbury ('old Sarum' as we foolishly call it) seems to be a mere manor belonging to the bishop; but the king receives its third penny. He receives also the third penny of Cricklade, which we have named before now as one of the old Wessex strongholds, and several of the county magnates had burgesses there. On the other hand Calne, Bedwind and Warminster are reckoned to be manors on the king's land. Burgesses belong to them; but whether those burgesses are really resident in them may not be quite certain[848]. Devizes we can not find. That puzzles should occur in this quarter is what our general theory might lead us to expect. In the old home of the West-Saxon kings there may well have been towns which had long ago secured the name and the peace of royal burgs, though they manifested none of that tenurial heterogeneity which is the common mark of a borough. A town, a village, which not only belonged to the king but contained a palace or house in which he often dwelt, would enjoy his special peace, and might maintain its burghal dignity long after there was little, if any, real difference between it and other manors or villages of which the king was the immediate landlord. Already in 1086 there may have been 'rotten boroughs,' boroughs that were rotten before they were ripe[849].

[Attributes of the borough.]

A borough belongs to the genus _villa_ (_tún_). In age after age our task is to discover its _differentia_, and the task is hard because, as age succeeds age, changes in law and changes in fact are making the old distinctions obsolete while others are becoming important. Let us observe, then, that already when Domesday Book was in the making those ancient attributes of which we have been speaking were disappearing or were fated soon to disappear. We have thought of the typical borough as a fortified town maintained by a district for military purposes. But already the shire thegns have been letting their haws at a rent and probably have been letting them to craftsmen and traders. Also the time has come for knight-service and castles and castle-guard. We have thought of the typical borough as the sphere of a special peace. But the day is at hand when a revolution in the criminal law will destroy the old system of _wer_ and _wíte_ and _bót_, and the king's peace will reign always and everywhere[850]. We have thought of the typical borough as a town which has a court. But the day is at hand when almost every village will have its court, its manorial court. New contrasts, however, are emerging as the old contrasts fade away. Against a background of villeinage and week-work, the borough begins to stand out as the scene of burgage tenure. The service by which the burgess holds his tenement is a money rent. This may lead to a large increase in the number of boroughs. If a lord enfranchises a manor, abolishes villein customs, takes money rents, allows his tenants to farm the court and perhaps also to farm a market that he has acquired from the king, he will be said to create a _liber burgus_[851]. Merchant gilds, elected bailiffs, elected mayors and common seals will appear and will complicate the question. There will follow a time of uncertainty and confusion when the sheriffs will decide as suits them best which of the smaller towns are boroughs and which are not.

[Classification of boroughs.]

If the theory that we have been suggesting is true, all or very nearly all our ancient boroughs (and we will draw the line of ancientry at the Conquest) are in their inception royal boroughs. The group of burgesses when taken as a whole had no superior other than the king. His was the peace that prevailed in the streets; the profits of the court and of the market were his, though they were farmed by a reeve. Rarely, however, was he the landlord of all the burgesses. In general not a few of them lived in houses that belonged to the thegns of the shire. We must be careful therefore before we speak of these towns as 'boroughs on the royal demesne.' For the more part, the compilers of Domesday Book have refused to place them on the _Terra Regis_. In course of time some of them will be currently spoken of as boroughs on or of the royal demesne. The rights of those who represent the thegns of the shire will have become mere rights to rent, and, their origin being forgotten, they will even be treated as mere rent-charges[852]. The great majority of the burgesses will in many instances be the king's immediate tenants and he will be the only lord of that incorporeal thing, 'the borough,' the only man who can grant it a charter or let it to farm. But we must distinguish between these towns and those which at the Conquest were manors on the king's land. These latter, if he enfranchises them, will be boroughs on the royal demesne in an exacter sense. So, again, we must distinguish between those ancient boroughs which the king has mediatized and those manors of mesne lords which are raised to the rank of boroughs. We have seen that from the ancient borough the king received a revenue of tolls and fines. Therefore he had something to give away. He could mediatize the borough. Domesday Book shows us that this had already been done in a few instances[853]. At a later time some even of the county towns passed out of the king's hands into the hands of earls. This happened at Leicester and at Warwick. The earl succeeded to the king's rights, and the burgesses had to go to the earl for their liberties and their charters. But such cases are very distinct from those in which a mesne lord grants an enfranchising charter to the men of a place which has hitherto been one of his manors, and by speaking of boroughs which are 'on the land of mesne lords' we must not confuse two classes of towns which have long had different histories. In the ancient boroughs there is from the first an element that we must call both artificial and national. The borough does not grow up spontaneously; it is made; it is 'wrought'; it is 'timbered.' It has a national purpose; it is maintained 'at the cost of the nation' by the duty that the shire owes to it. This trait may soon have disappeared, may soon have been forgotten, but a great work had been done. In these nationally supported and heterogeneously peopled towns a new kind of community might wax and thrive.

FOOTNOTES:

[698] A sketch of the principal argument of this section was published in Eng. Hist. Rev., xi. 13, as a review of Keutgen's Untersuchungen über den Ursprung der deutschen Stadtverfassung. The origin of the French and German towns has become the theme of a large and very interesting literature. A good introduction to this will be found in an article by M. Pirenne, L'origine des constitutions urbaines, Revue historique, liii. 52, lvii. 293, and an article by Mr Ashley, Quarterly Journal of Economics, vol. x. July, 1896. The continuous survival of Roman municipal institutions even in Gaul seems to be denied by almost all modern students.

[699] Hist. Eng. Law, i. 625.

[700] Stubbs, Const. Hist. iii. 448.

[701] We must exclude cases in which the king takes an aid from his whole demesne, e.g. for his daughter's marriage, for in such a case many royal manors which have no right to be called boroughs must make a gift.

[702] Round, Geoffrey de Mandeville, 347, has excellent remarks on this point.

[703] Nearly.

[704] This may come only from the Staffordshire part of Tamworth.

[705] Chichester pays in later years; but very little.

[706] Pipe Roll, 31 Hen. I. p. 139.

[707] Was the blank space in D. B. i. 246 left for the borough of Tamworth? This borough is incidentally mentioned in D. B. i. 238, 246, 246 b.

[708] But the account of the two sister boroughs here falls between the accounts of the two sister counties.

[709] D. B. i. 337. It is even called a _suburbium_ of Lincoln, though it lies full 10 miles from the city.

[710] The one glimpse that I have had of the manuscript suggested to me (1) that the accounts of some of the boroughs were postscripts, and (2) that space was left for accounts of London and Winchester. The anatomy of the book deserves examination by an expert.

[711] D. B. i. 154.

[712] D. B. i. 56.

[713] D. B. i. 58.

[714] D. B. i. 238.

[715] D. B. i. 143.

[716] Ellis, Introduction, ii. 446; Winchcombe Land-boc, ed. Royce, p. xiv; Stevenson, Rental of Gloucester, p. ix.

[717] D. B. i. 128, 128 b; and above, p. 111.

[718] K. 855 (iv. 211).

[719] Stow, Survey, ed. Strype, Bk. iii. p. 121.

[720] D. B. i. 135 b.

[721] Hist. Eng. Law, i. 636.

[722] Rot. Hund. ii. 361.

[723] D. B. i. 189.

[724] Rental of Gloucester, ed. W. H. Stevenson: Gloucester, 1890, p. x.

[725] There are many examples in Kemble's Codex.

[726] Pipe Roll, 31 Hen. I. p. 41: 'Vicecomes reddit compotum de £80 de auxilio civitatis.... Et in perdonis.... Comiti de Mellent 25 sol.... Comiti de Lerecestria 35 sol.... Comiti de Warenna 16 sol.... Comiti Gloecestriae 116 sol. et 8 den.' See also the Liber Wintoniae, D. B. iv. 531 ff.

[727] In the A.-S. land-books the word _civitas_ is commonly applied to Worcester, Winchester, Canterbury, and other such places, which are both bishops' sees and the head places of large districts. But (K. v. p. 180) Gloucester is a _civitas_, and for some time after the Conquest it is rather the county town than the cathedral town that bears this title. Did any one ever speak of Selsey or Sherborne as a _civitas_? In 803 (K. v. p. 65) the bishops of Canterbury, Lichfield, Leicester, Sidnacester, Worcester, Winchester, Dunwich, London and Rochester style themselves bishops of _civitates_, while those of Hereford, Sherborne, Elmham and Selsey do not use this word. But an inference from this would be rash.