Part 27

[728] An interesting example is this. In 779 Offa conveys to a thegn land at Sulmonnesburg. The boundaries mentioned in the charter are those of the present parish of Bourton-on-the-Water. 'Sulmonnesburg ... is the ancient camp close to Bourton which gave its name to the Domesday Hundred of Salmanesberie, and at a gap in the rampart of which a Court Leet was held till recently.' See C. S. Taylor, Pre-Domesday Hide of Gloucestershire, Trans. Bristol and Gloucestershire Archæol. Soc. vol. xviii. pt. 2. As regards the names of hills and of villages named from hills there may occasionally be some difficulty in marking off those which go back to _beorh_ (_berry_, _berrow_, _barrow_) from those which go back to _burh_ (_burgh_, _borough_, _bury_). Mr Stevenson tells me that in the West of England the termination _-borough_ sometimes represents _-beorh_.

[729] Alfred, 40; Ine, 45.

[730] Aethelr. IV. 4. The Quadripartitus is our only authority for these _Instituta_; but Dr Liebermann (Quadrip. p. 138) holds that the translator had in front of him a document written before the Conquest. Schmid would read _borh-bryce_; see p. 541; but this emendation seems needless. Has not the sum been Normanized? The king's _burh-bryce_ used to be 120 (i.e. in English 'a hundred') shillings, and a hundred _Norman_ shillings make £5. So according to the Berkshire custom (D. B. i. 56 b) he who by night breaks a _civitas_ pays 100 shillings to the king and not (it is noted) to the sheriff.

[731] D. B. i. 2: 'Concordatum est de rectis callibus quae habent per civitatem introitum et exitum, quicunque in illis forisfecerit, regi emendabit.' See the important document contained in a St Augustin's Cartulary and printed in Larking, Domesday of Kent, Appendix, 35: 'Et omnes vie civitatis que habent duas portas, hoc est introitum et exitum, ille sunt de consuetudine Regis.'

[732] Schmid, App. XII; Leg. Henr. c. 16.

[733] Fleta, p. 66; see also 13 Ric. II. stat. 1. cap. 3.

[734] Edmund, II. 2.

[735] See also Schmid, App. IV. (Be griðe and be munde), § 15: 'If any man fights or steals in the king's _burh_ or the neighbourhood (the 'verge'), he forfeits his life, if the king will not concede that he be redeemed by a _wergild_.'

[736] Æthelstan, II. 20.

[737] K. 1334 (vi. p. 195): a contract made at Exeter before Earl Godwin and all the shire.

[738] Edgar, III. 5; Cnut, II. 18.

[739] Mention is made of the walls of Rochester and Canterbury in various charters from the middle of cent. viii onwards: K. vol. i. pp. 138, 183, 274; vol. ii. pp. 1, 26, 36, 57, 86; vol. v. p. 68.

[740] Green, Conquest of England, 189-207.

[741] For instance, K. iii. pp. 5, 50.

[742] K. 1154 (v. 302): 'adiacent etiam agri quamplurimi circa castellum quod Welingaford vocitatur.'--K. 152 (i. 183): 'castelli quod nominatur Hrofescester.'--K. 276 (ii. 57): 'castelli Hrobi.'

[743] A beautiful example is given by Staffordshire and Warwickshire. Each has its borough in its centre, while Tamworth on the border is partly in the one shire, partly in the other. See Pipe Roll, 31 Hen. I. 75, 76, 107, 108. As to these Mercian shires, see Stubbs, Const. Hist., i. 123; Green, Conquest of England, 237: 'Hertfordshire, Buckinghamshire and Bedfordshire are other instances of purely military creation, districts assigned to the fortresses which Eadward raised at these points.'

[744] See our index under _Burghal Hidage_. Mr W. H. Stevenson's valuable aid in the identification of these burgs is gratefully acknowledged.

[745] D. B. i. 154.

[746] D. B. i. 262 b.

[747] It will be understood that we are not contending for an exact correspondence between civil and military geography. Oxford and Wallingford are border towns. Berkshire men help to maintain Oxford, and Oxfordshire men help to maintain Wallingford.

[748] Widukind, I. 35. For comments see Waitz, Heinrich V. 95; Richter, Annalen, iii. 8; Giesebrecht, Kaiserzeit (ed. 5), i. 222, 811; Keutgen, Ursprung der deutschen Stadtverfassung, p. 44. Giesebrecht holds that Edward's measures may well have been Henry's model.

[749] A.-S. Chron. ann. 894.

[750] A charter of 899 (K. v. p. 141) professes to tell how King Alfred, Abp Plegmund and Æthelred ealdorman of the Mercians held a moot 'de instauratione urbis Londoniae.' One result of this moot was that two plots of land inside the walls, with hythes outside the walls, were given by the king, the one to the church of Canterbury, the other to the church of Worcester. How will the _instauratio_ of London be secured by such grants?

[751] K. 1144 (v. 280). Other cases: K. 663 (Chichester), 673 (Winchester), 705 (Warwick), 724 (Warwick), 746 (Oxford), 1235 (Winchester).

[752] K. 765-6, 805.

[753] Schmid, App. V. This might mean a seat (of justice) in the gate of his own _burh_. But this document will hardly be older than, if so old as, cent. x., by which time we should suppose that _burh_ more often pointed to a borough than to a strong house. We may guess that in the latter sense it was supplanted by the _hall_ of which we read a great deal in Domesday. See above, p. 109. However, it does not seem certain that O. E. _geat_ can mean _street_.

[754] A.-S. Chron. ann. 994.

[755] Thorpe, Diplomatarium, 610. When the Confessor sends a writ to London he addresses it to the bishop, portreeve and burh-thegns. See K. iv. pp. 856, 857, 861, 872.

[756] Gross, Gild Merchant, i. 183, 189.

[757] Gross, op. cit. ii. 37.

[758] Hist. Eng. Law, i. 257.

[759] A.-S. Chron. ann. 1097: 'Eac manege sciran þe mid weorce to Lundenne belumpon ...' Thorpe thought good to substitute _scipan_ for _sciran_.

[760] D. B. i. 298. Outside York were some lands which gelded with the city; 'et in tribus operibus Regis cum civibus erant.' This refers to the _trinoda necessitas_.

[761] Sohm, Die Entstehung des deutschen Städtewesens: Leipzig, 1890.

[762] Ellis, Introduction, i. 248-253.

[763] D. B. i. 56 b.

[764] D. B. i. 1. Black Book of the Admiralty, ii. 158: 'the herring season, that is from St. Michael's Day to St. Clement's (Nov. 23).' St. Andrew's Day is Dec. 1.

[765] Edward, I. 1; Æthelstan, II. 12, 13; IV. 2; VI. 10; Edmund, III. 5; Edgar, IV. 7-11; Leg. Will. I. 45; Leg. Will. III. 10. See Schmid, Glossar. s.v. _Marktrecht_.

[766] Edgar, IV. 3-6. We should expect rather 36 than 33, and _xxxvi_ might easily become _xxxiii_.

[767] K. 280 (ii. 63), 316 (ii. 118).

[768] Kemble, Cod. Dip. 1075 (v. 142); Kemble, Saxons, ii. 328; Thorpe, 136: 'ge landfeoh, ge fihtwite, ge stale, ge wohceapung, ge burhwealles sceatinge.' In D. B. i. 173 it is said that the Bishop of Worcester had received the third penny of the borough. Apparently in the Confessor's day he received £6, the third of a sum of £18. As to the early history of markets, see the paper contributed by Mr C. I. Elton to the Report of the Royal Commission on Market Rights, 1889.

[769] Æthelstan, II. 14.

[770] The general equivalence of _port_ and _burh_ we may perhaps infer from Æthelstan, II. 14: No one is to coin money outside a _port_, and there is to be a moneyer in every _burh_.

[771] Stockport, Langport, Amport, Newport-Pagnell, Milborne Port, Littleport are instances. But a very small river might be sufficient to make a place a haven.

[772] Seemingly if this O.-E. _port_ is not Lat. _portus_, it is Lat. _porta_, and there is some fascination about the suggestion that the _burh-geat_, or in modern German the _Burg-gasse_, in which the market is held, was described in Latin as _porta burgi_. In A.D. 762 (K. i. p. 133) we have a house 'quae iam ad Quenegatum urbis Dorouernis in foro posita est.' In A.D. 845 (K. ii. p. 26) we find a 'publica strata' in Canterbury 'ubi appellatur Weoweraget,' that is, the gate of the men of Wye. But what we have to account for is the adoption of _port_ as an English word, and if our ancestors might have used _geat_, they need not have borrowed. In A.D. 857 (K. ii. p. 63) the king bestows on the church of Worcester certain liberties at a spot in the town of London, 'hoc est, quod habeat intus liberaliter modium et pondera et mensura sicut in porto mos est ad fruendum.' To have public weights and measures is characteristic of a _portus_ (= haven). The word may have spread outwards from London. Dr Stubbs (Const. Hist. i. 439) gives a weighty vote for _porta_; but the continental usage deserves attention. Pirenne, Revue historique, lvii. 75: 'Toutes les villes anciennes [en Flandre] s'y forment au bord des eaux et portent le nom caractéristique de _portus_, c'est-à-dire de débarcadères. C'est de ce mot _portus_ que vient le mot flamand _poorter_, qui désigne le bourgeois.' See D. B. i. 181 b: 'in Hereford Port.'

[773] D. B. i. 143.

[774] D. B. i. 230.

[775] Cutts, Colchester, 65; Round in The Antiquary, vol. vi. (1882) p. 5.

[776] D. B. ii. 106-7. See Round, op. cit., p. 252.

[777] Hist. Eng. Law, i. 629.

[778] D. B. i. 252.

[779] D. B. i. 179. So at Chester (i. 262 b) it is considered possible that the heir will not be able to pay the relief of ten shillings and will forfeit the tenement.

[780] D. B. i. 336.

[781] D. B. ii. 116. See also the case of Thetford (D. B. ii. 119), where there had been numerous burgesses who could choose their lords.

[782] D. B. i. 280.

[783] D. B. i. 336 b.

[784] D. B. ii. 117.

[785] D. B. i. 2. In 923 (K. v. p. 186) we hear of land outside Canterbury called _Burhuuare bocaceras_, apparently acres booked to [certain] burgesses.

[786] D. B. i. 100.

[787] D. B. ii. 107: 'In commune burgensum iiii. xx. acrae terrae; et circa murum viii. percae; de quo toto per annum habent burgenses lx. sol. ad servicium regis si opus fuerit, sin autem, in commune dividunt.' As to this most difficult passage, see Round, Antiquary, vol. vi. (1882) p. 97. Perhaps the most natural interpretation of it is that the community or commune of the burgesses holds this land and receives by way of rent from tenants, to whom it is let, the sum of 60 shillings a year, which, if this be necessary, goes to make up what the borough has to pay to the king, or otherwise is divisible among the burgesses. But, as Mr Round rightly remarks, 60 shillings for this land would be a large rent.

[788] D. B. i. 2: 'Ipsi quoque burgenses habebant de rege 33 acras terrae in gildam suam.' Another version says, '33 agros terre quos burgenses semper habuerunt in gilda eorum de donis omnium regum.' The document here cited is preserved in a cartulary of St Augustin, and is printed in Larking, Domesday of Kent, App. 35. It is closely connected with the Domesday Survey and is of the highest interest.

[789] Gross, Gild Merchant, ii. 37.

[790] We do not even know for certain that when our record says that the burgesses and the clerks held land 'in gildam suam,' more was meant than that the land was part of their geldable property. See Gross, Gild Merchant, i. 189. In the Exon Domesday the geld is _gildum_.

[791] D. B. i. 154.

[792] See above, p. 179.

[793] In modern York the freemen inhabiting the different wards had rights of pasture varying from ward to ward: Appendix to Report of Municipal Corporations' Commissioners, 1835, p. 1745. York is one of the towns in which we may perhaps suppose that there has been a gradual union of several communities which were at one time agrarianly distinct. See D. B. i. 298. Dr Stubbs seems to regard this as a common case and speaks of 'the townships which made up the _burh_' (Const. Hist. i. 101). We can not think that the evidence usually points in this direction, and have grave doubts as to the existence within the walls of various communities that were called townships. Within borough walls we must not leap from parish to township.

[794] D. B. i. 203. As to the whole of this matter see Mr Round's paper on Domesday Finance in Domesday Studies, vol. i.

[795] Hist. Eng. Law, i. 635.

[796] D. B. i. 219.

[797] The case of London is anomalous; but not so anomalous as it is often supposed to be. On this point see Round, Geoffrey de Mandeville, 347 ff. On the Pipe Roll of 2 Hen. II. (pp. 24, 28) the citizens of Lincoln are accounting for a farm of £180, while the sheriff in consequence of this arrangement is credited with £140 (blanch) when he accounts for the farm of the shire. This is as yet a rare phenomenon.

[798] As to the round sums cast on the boroughs, see Round in Domesday Studies, i. 117 ff.; also Round, Feudal England, 156.

[799] This may not have been the case in East Anglia.

[800] D. B. i. 252.

[801] D. B. i. 298. Of York we read: 'In the geld of the city are 84 carucates of land, each of which gelds as much as one house in the city.' This seems to point to an automatic adjustment. To find out how much geld any house pays, divide the total sum that is thrown upon York by the number of houses + 84.

[802] Mr Round (Domesday Studies, i. 129) who has done more than anyone else for the elucidation of the finance of Domesday, has spoken of 'the great Anglo-Saxon principle of _collective liability_.' This may be a useful term, provided that we distinguish (_a_) liability of a corporation for the whole tax whenever it is levied; (_b_) joint and several liability of all the burgesses for the whole tax whenever it is levied; (_c_) liability of each burgess for a share of the whole tax, the amount that he must pay in any year being affected by an increase or decrease in the number of contributories.

[803] See the entry touching Colchester, above, p. 201, note 787.

[804] D. B. i. 1.

[805] D. B. i. 238. The custom of Warwick was that when the king made an expedition by land ten burgesses of Warwick should go for all the rest. He who did not go when summoned [summoned by whom?] paid 100 shillings to the king; [so his offence was against the king not against the town.] And if the king went against his enemies by sea, they sent him four boat-swains or four pounds in money.

[806] D. B. i. 56 b.

[807] D. B. i. 179.

[808] At Chester (D. B. i. 262 b) the twelve civic _iudices_ paid a fine if they were absent without excuse from the 'hundret.' This seems to mean that their court was called a hundred moot. It is very possible that, at least in the earliest time, the moot that was held in the borough had jurisdiction over a territory considerably larger than the walled space, and in this case the urban would hardly differ from the rural hundred. A somewhat new kind of 'hundred' might be formed without the introduction of any new idea.

[809] D. B. i. 336.

[810] Hist. Eng. Law, i. 631.

[811] Green, Town Life, vol. i. ch. xi.

[812] D. B. i. 189.

[813] D. B. i. 336 b.

[814] D. B. i. 336 b.

[815] D. B. i. 298.

[816] D. B. i. 262 b.

[817] R. H. i. 354-6.

[818] Besides the well known English books, see a paper by Konrad Maurer, Sitzungsberichte der Akademie der Wissenschaften zu München, Philosoph.-philolog. Classe, 1887, vol. ii. p. 363. In the Leges Edw. Conf. 38 § 2, the 'lagemanni et meliores homines de burgo' seem to serve as inquest men, rather than doomsmen; while the _lahmen_ of the document concerning the Dunsetan (Schmid, App. I.) seem to be doomsmen.

[819] Gross, Gild Merchant, ii. 114 ff.; Hist. Eng. Law, i. 642.

[820] D. B. ii. 290, Ipswich: 'Modo vero sunt 110 burgenses qui consuetudinem reddunt et 100 pauperes burgenses qui non possunt reddere ad geltum Regis nisi unum denarium de suis capitibus.' D. B. ii. 116, Norwich: 'Modo sunt in burgo 665 burgenses anglici et consuetudines reddunt, et 480 bordarii qui propter pauperiem nullam reddunt consuetudinem.'

[821] D. B. i. 108 b.

[822] Whether the _novum burgum_ mentioned in D. B. i. 17 is Winchelsea or Rye or a new town at Hastings seems to be disputable. See Round, Feudal England, 568.

[823] D. B. i. 26 b, 27.

[824] D. B. i. 4 b.

[825] D. B. i. 4 b. See also, 10 b.

[826] D. B. i. 12.

[827] D. B. i. 345, 283 b. It has been said that Leofric gave Newark to the see.

[828] Dodsworth's Yorkshire Notes, ed. R. Holmes (reprinted from Yorkshire Archaeological Journal), p. 126.

[829] D. B. i. 316 b. The estate is ingeldable and therefore looks like an ancient possession of the king.

[830] D. B. 337 b: 'Toftes sochemanorum teignorum.' Some commentators have seen here 'sokemen thegns'; but the other interpretation seems far more probable.

[831] Had these towns been described in Great Domesday, they would probably have been definitely placed outside the _Terra Regis_.

[832] D. B. ii. 311, 312, 385.

[833] D. B. ii. 319 b.

[834] D. B. ii. 389 b: 'semper unum mercatum modo 43 burgenses.' For Sudbury, see D. B. ii. 286 b; for Beccles, 369 b.

[835] D. B. i. 136 b: 'In burbio huius villae 52 burgenses.' The word _burbium_ looks as if some one had argued that as _suburbium_ means an annex to a town, therefore _burbium_ must mean a town. But the influence of _burh_, _burg_, _bourg_ may be suspected. A few pages back (132) the _burgum_ of Hertford seems to be spoken of as 'hoc suburbium.' It is of course to be remembered that _burgus_ or _burgum_ was a word with which the Normans were familiar: it was becoming the French _bourg_. It is difficult to unravel any distinctively French thread in the institutional history of our boroughs during the Norman age; but the little knot of traders clustered outside a lord's castle at Clare or Berkhampstead, at Tutbury, Wigmore or Rhuddlan may have for its type rather a French _bourg_ than an English _burh_. Indeed at Rhuddlan (i. 269) the burgesses have received the law of Breteuil.

[836] For Taunton, see D. B. i. 87 b: 'Istae consuetudines pertinent ad Tantone: burgeristh, latrones, pacis infractio, hainfare, denarii de hundred, denarii S. Petri, ciricieti.' Compare the document which stands as K. 897 (iv. 233): 'Ðæt is ærest ... seo men redden into Tantune cirhsceattas and burhgerihtu.' See also K. 1084 (v. 157): 'ut episcopi homines [apud Tantun] tam nobiles quam ignobiles ... hoc idem ius in omni haberent dignitate quo regis homines perfruuntur, regalibus fiscis commorantes.'

[837] D. B. ii. 5 b.

[838] D. B. ii. 104.

[839] D. B. i. 163.

[840] D. B. i. 75.

[841] D. B. i. 100, 108 b.

[842] D. B. i. 86 b.

[843] D. B. i. 87.

[844] See above, p. 188.

[845] D. B. 38 b, 44.

[846] D. B. 64 b.

[847] D. B. 66.

[848] The burgesses belonging to Ramsbury are really at Cricklade: D. B. i. 66.

[849] It seems very possible that already before the Conquest some boroughs had fallen out of the list. In cent. x. we read, for example, of a _burh_ at Towcester and of a _burh_ at Witham in Essex. We must not indeed contend that a shire-supported town with tenurial heterogeneity came into existence wherever Edward the Elder or the Lady of the Mercians 'wrought a _burh_.' But still during a time of peace the walls of a petty _burh_ would be neglected, and, if the great majority of the inhabitants were the king's tenants, there would be little to distinguish this place from a royal village of the common kind. See for Towcester, D. B. i. 219 b; for Witham, D. B. ii. 1 b. In later days we may see an old borough, such as Buckingham, falling very low and sending no burgesses to parliament. It will be understood that we have not pledged ourselves to any list of the places that were boroughs in 1066. There are difficult cases such as that of St Albans; see above, p. 181. But, we are persuaded that few places were deemed _burgi_, except the shire towns.

[850] A last relic of the old borough peace may be found in Britton's definition of burglary (i. 42): 'Burglars are those who feloniously in time of peace break churches, or the houses of others, or the walls or gates of our cities or boroughs (_de nos citez ou de nos burgs_).'

[851] By a charter of enfranchisement a lord might introduce burgage tenure and abolish 'servile customs'; but it must be, to say the least, doubtful whether he could, without the king's licence, confer upon a village the public status of a borough and e.g. authorize it to behave like a hundred before the justices in eyre. This is one of the reasons why sheriffs can draw the line where they please, and why some towns which have been enfranchised never obtain a secure place in the list of parliamentary boroughs.

[852] Hist. Eng. Law, i. 630. When it is being said that if land in the borough escheats, it always escheats to the king, the mesne tenures are already being forgotten within the borough, just as in modern times we have forgotten them in the open country. The burgher's power of devising his land made escheat a rare event, and so destroyed the evidence of mesne tenure.

[853] See above, p. 212. Also the king might give away an undivided share of the borough. Apparently the church of Worcester had received the third penny of the city ever since the day when the _burh_ was wrought by the ealdorman and lady of the Mercians. See above, p. 194.

ESSAY II.

ENGLAND BEFORE THE CONQUEST.

[Object of this Essay.]