are fully described in the survey are the king's own burgesses, and in
some cases his share is very large. This suggests that the land on which
the borough stands has been royal land and that the king provided the
shire thegns with sites for their haws. For their haws they have
sometimes been paying him small rents. On the other hand, at Leicester,
though the king has some 40 houses, the great majority belong to Hugh of
Grantmesnil. He has about 80 houses which pertain to 17 different manors
and which may in the past have been held by many different thegns; but
he also holds 110 houses which are not allotted to manors and which have
probably come to him as the representative of the earls and ealdormen of
an older time[774]. This looks as if in this case the soil had been not
royal but 'comital' land at the time when the place was fortified and
when the landowners of the shire, including perhaps the king, were
obliged to build houses within the wall. But though we fully admit that
each of our boroughs has lived its own life, our evidence seems to point
to the conclusion that in those truly ancient boroughs of which we have
been speaking, though there might be many inhabitants who held and who
cultivated arable land lying without the walls, there were from a remote
time other burgesses who were not landowners and were not
agriculturists and yet were men of importance in the borough. If we
look, for example, at the elaborate account of Colchester we shall first
read the names of the king's burgesses. 'Of these 276 burgesses of the
king, the majority have one house and a plot of land of from one to
twenty-five acres; some possess more than one house and some have none;
they had in all 355 houses and held 1296 acres of land[775]'. But these
were not the only burgesses. Various magnates had houses which were
annexed to their rural manors. Count Eustace (to name a few) had 12,
Geoffrey de Mandeville 2, the Abbot of Westminster 4, the Abbess of
Barking 3, and seemingly to these houses no strips in the arable fields
were attached[776]. Thus, though many of the burgesses may till the
soil, the borough community is not an agrarian community. We can not
treat it as a village community that has prospered and slowly changed
its habits. A new principle has been introduced, an element of
heterogeneity. The men who meet each other in court and market, the men
who will hereafter farm the court and market, are not the shareholders
in an agricultural concern.
[Burgage tenure.]
That tenurial heterogeneity of which we have been speaking had another
important effect. When in later days a rural manor is being raised to
the rank of a _liber burgus_, the introduction of 'burgage tenure' seems
to be regarded as the very essence of the enfranchisement[777]. Probably
this feature had appeared in many boroughs at an early date. The lord
with lands in Oxfordshire may have been bound to keep a few houses and
retainers in Oxford. If, however, the commercial element in the town
began to get the better of the military element, if Oxford became a
centre of trade, then a house in Oxford could be let for a money rent.
In Domesday Book the barons are drawing rents from their borough houses.
If any return is to be made by the occupier to the owner it will take
the form of a money rent; it can hardly take another form. Thus tenure
at a money rent would become the typical tenure of a burgage tenement.
It will be a securely heritable tenure, because the landlord is an
absentee and has too few tenants in the town to require the care of a
resident reeve. But there may have been many dwellers in some of the
boroughs who were bound to help in the cultivation of a stretch of royal
or episcopal demesne that lay close to the walls. In the west some of
the king's burgesses seem to have been holding under onerous terms. At
Shrewsbury, which lies near the border of Wales where every girl's
marriage gave rise to an _amobyr_, a maid had to pay ten, a widow twenty
shillings when she took a husband, and a relief of ten shillings was due
when a burgess died[778]. At Hereford the reeve's consent was necessary
when a burgage was to be sold, and he took a third of the price. When a
burgess died the king got his horse and arms (these Hereford burgesses
were fighting men); if he had no horse, then ten shillings 'or his land
with the houses.' Any one who was too poor to do his service might
abandon his tenement to the reeve without having to pay for it. Such an
entry as this seems to tell us that the services were no trivial return
for the tenement[779].
[Eastern and western boroughs.]
On the other hand, we may see at Stamford what seem to be the remains of
a very free group of settlers, presumably Danes. The town contains among
other houses 77 houses of sokemen 'who hold their lands in demesne and
seek lords wherever they please, and over whom the king has nothing but
wite and heriot and toll.' These may be the same persons who hold 272
acres of land and pay no rent for it[780]. At Norwich, again, we seem to
hear of a time when the burgesses were free to commend themselves to
whomever they would, and were therefore living in houses which were all
their own, and for which they paid no rent[781]. It is very possible
that, so far as landlordly rights are concerned, there was as much
difference between the eastern and the western towns as there was
between the eastern and the western villages. Still if we look at
borough after borough, tenure at a money rent is the tenure of the
burgage houses that we expect to find, and such a tenure, even if in its
origin it has been precarious, is likely to become heritable and
secure. As to the shire thegns, they have in some cases paid to the king
small rents for their haws; but in others, for example at Oxford, tenure
by wall-work has been their tenure, and when in other towns we find them
paying rent to the king we may perhaps see commuted wall-work.
[Common property of the burgesses.]
[The community as landholders.]
Traces are few in Domesday Book of any property that can be regarded as
the property of a nascent municipal corporation, and even of any that
can be called the joint or common property of the burgesses. In general
each burgess holds his house in the town of the king or of some other
lord by a several title, and, if he has land in the neighbouring fields,
this also he holds by a several title. 'In the borough of Nottingham
there were in King Edward's day 183 burgesses and 19 _villani_. To this
borough belong 6 carucates of land for the king's geld and one meadow
and certain small woods ... This land was divided between 38 burgesses
and [the king] received 75_s_. 7_d_. from the rent of the land and the
works of the burgesses.' 'In the borough of Derby there were in King
Edward's day 243 resident burgesses.... To this borough belong 12
carucates of land for the geld, but they might be ploughed by 8 teams.
This land was divided among 41 burgesses who had 12 teams[782].' In
these cases we see plainly enough that such arable land as is in any way
connected with the borough has been held by but a few out of the total
number of the burgesses. Therefore we must deal cautiously with entries
that are less explicit. When, for example, in the description of
Stamford we read 'Lagemanni et burgenses habent cclxxii. acras sine omni
consuetudine[783],' we must not at once decide that there is any
ownership by the burgesses as a corporation, or any joint ownership, or
even that all the burgesses have strips in these fields, though
apparently the burgesses who have strips pay no rent for them. This is
the fact and the only fact that the commissioners desire to record. They
do not care whether every burgess has a piece, or whether (as was
certainly the case elsewhere) only some of them held land outside the
walls. When of Norwich we read 'et in burgo tenent burgenses xliii.
capellas[784],' we do not suppose that all the Norwich burghers have
chapels, still less that they hold the forty-three chapels as
co-owners, still less that these chapels belong to a corporation. We
remember that the Latin language has neither a definite nor an
indefinite article. Therefore when of 80 acres at Canterbury, which are
now held by Ralph de Colombiers, we read 'quas tenebant burgenses in
alodia de rege,' we need not suppose that these acres had belonged to
_the_ (i.e. to all the) burgesses of Canterbury[785]. So of Exeter it is
written: 'Burgenses Exoniae urbis habent extra civitatem terram xii.
caruc[arum] quae nullam consuetudinem reddunt nisi ad ipsam civitatem.'
This, though another interpretation is possible, may only mean that
there are outside the city twelve plough-lands which are held by
burgesses whose rents go to make up that sum of £18 which is paid to the
king, or rather in part to the sheriff and in part to the queen dowager,
as the ferm of the city[786]. Concerning Colchester there is an entry
which perhaps ascribes to the community of burgesses the ownership or
the tenancy of fourscore acres of land and of a strip eight perches in
width surrounding the town wall; but this entry is exceedingly
obscure[787]. Another dark case occurs at Canterbury. We are told that
the burgesses or certain burgesses used to hold land of the king 'in
their gild[788].' Along with this we must read another passage which
states how in the same city the Archbishop has twelve burgesses and
thirty-two houses which 'the clerks of the vill hold in their gild.'
Apparently in this last case we have a clerical club or fraternity
holding land, and the burgher's gild may be of much the same nature, a
voluntary association. Not very long after the date of Domesday, for
Anselm was still alive, an exchange of lands was made between the
convent (_hired_, _familia_) of Christ Church and the 'cnihts' of the
chapman gild of Canterbury. The transaction takes place between the
'hired' on the one hand, the 'heap' (for such is the word employed) on
the other. The witnesses to this transaction are Archbishop Anselm and
the 'hired' on the one hand, Calveal the portreeve and 'the eldest men
of the heap' on the other[789]. But to see a municipal corporation in
the burghers' gild of Domesday Book would be very rash. We do not know
that all the burghers belonged to it or that it had any governmental
functions[790].
[Rights of common.]
We may of course find that a group of burgesses has 'rights of common;'
but rights of common, though they are rights which are to be enjoyed in
common, are apt to be common rights in no other sense, for each commoner
has a several title to send his beasts onto the pasture. Thus 'all the
burgesses of Oxford have pasture in common outside the wall which brings
in [to the king] 6_s._ 8_d[791]._' The soil is the king's; the burgesses
pay for the right of grazing it. The roundness of the sum that they pay
seems indeed to hint at some arrangement between the king and the
burgesses taken in mass; but probably each burgess, and the lord of each
burgess, regards a right of pasture as appurtenant to a burgage
tenement. The case is striking, for we have seen how heterogeneous a
group these Oxford burgesses were[792]. No less than nine prelates, to
say nothing of earls and barons, had burgesses in the city. We must
greatly doubt whether there is any power in any assembly of the
burgesses to take from the Bishop of Winchester or the Count of Mortain
the customary rights of pasture that have been enjoyed by the tenants of
his tenements.
[Absence of communalism in the boroughs.]
We might perhaps have guessed that the boroughs would be the places of
all others in which such communalism as there was in the ancient village
community would maintain and develop itself, until in course of time the
borough corporation, the ideal borough, would stand out as the owner of
lands which lay within and without the wall. But, if we have not been
going astray, we may see why this did not happen, at least in what we
may call the old national boroughs. The burgensic group was not
homogeneous enough. We may suppose that some members of it had inherited
arable strips and pasture rights from the original settlers; but others
were 'knights' who had been placed in the haws of the shire-thegns, or
were merchants and craftsmen who had been attracted by the market, and
for them there would be no room in an old agrarian scheme. Indeed it is
not improbable that, even as regards rights of pasture, there was more
difference between burgess and burgess than there was between villager
and villager. In modern times it is not unknown that some of the
burgesses will have pasture rights, while others will have none, and in
those who are thus favoured we may fancy that we see the successors in
title of the king's tenants who turned out their beasts on the king's
land[793].
[The borough community and its lord.]
We have seen that in the boroughs a group of men is formed whose
principle of cohesion is not to be found in land tenure. The definition
of a burgess may involve the possession of a house within or hard by the
walls; but the burgesses do not coalesce as being the tenants or the men
of one lord; and yet coalesce they will. They are united in and by the
moot and the market-place, united under the king in whose peace they
traffic; and then they are soon united over against the king, who exacts
toll from them and has favours to grant them. They aspire to farm their
own tolls, to manage their own market and their own court. The king's
rights are pecuniary rights; he is entitled to collect numerous small
sums. Instead of these he may be willing to take a fixed sum every year,
or, in other words, to let his rights to farm.
[The farm of the borough.]
This step seems to have been very generally taken before the Conquest.
Already the boroughs were farmed. Now the sums which the king would draw
from a borough would be of several different kinds. In the first place,
there would be the profits of the market and of the borough court. In
the second place, there would be the gafol, the 'haw-gavel' and
'land-gavel' arising from tenements belonging to the king and occupied
by burgesses. In the third place, there might be the danegeld; but the
danegeld was a tax, an occasional tax, and for the moment we may leave
it out of our consideration. Now the profits of the market and court
seem to have been farmed. The sums that they bring in to the king are
round sums. The farmer seems to have been the sheriff or in some cases
the king's portreeve. We can find no case in which it is absolutely
clear to our minds that the borough itself, the _communitas burgi_, is
reckoned to be the king's farmer. Again, the king's gafol, that is his
burgage rents, may be farmed: they are computed at a round sum. Thus at
Huntingdon ten pounds are paid by way of land-gafol, and we may be
fairly certain that the sum of the rents of the individual burgesses who
held their tenements immediately of the king (there were other burgesses
who belonged to the Abbot of Ramsey) did not exactly make up this neat
sum[794]. In this case, however, the sum due to the king from his
farmer, probably the sheriff, in respect of the land-gafol is expressly
distinguished from the sum that he has to pay for the farm of the
borough (_firma burgi_):--at least in its narrowest sense, the _burgus_
which is farmed is not a mass of lands and houses, it is a market and a
court[795]. But, though we find no case in which the community of the
borough is unambiguously treated as the king's farmer, there are cases
in which it seems to come before us as the sheriff's farmer. 'The
burgesses' of Northampton pay to the sheriff £30. 10_s._ per
annum:--'this belongs to his farm[796].' The sheriff of Northamptonshire
is liable to the king for a round sum as the farm of the shire, but
'the burgesses' of Northampton are liable to the sheriff for a round
sum. This may mean that for this round sum they are jointly and
severally liable, while, on the other hand, they collect the tolls and
fines, perhaps also the king's burgage rents, and have an opportunity of
making profit by the transaction.
[The sheriff and the borough's farm.]
We must not be in haste to expel the sheriff from the boroughs of the
shire, or to bring the burgesses into immediate contact with the king's
treasury. We must remember that at the beginning of Henry II.'s reign
there is scarcely an exception to the rule that the boroughs of the
shire are in the eyes of auditors at the Exchequer simply parts of that
county which the sheriff farms. So far as the farm is concerned, the
royal treasury knows nothing of any boroughs[797]. The sheriff of
Gloucestershire, for example, accounts for a round sum which is the farm
of his county; neither he nor any one else accounts to the king for any
farm of the borough of Gloucester. If, as is most probable, the borough
is being farmed, it is being farmed by some person or persons to whom,
not the king, but the sheriff has let it for a longer or shorter period
at a fixed rent. Here, again, we see the likeness between a borough and
a hundred. The king lets the shire to farm; the shire includes hundreds
and boroughs; the sheriff 'lets the hundreds to farm; the sheriff lets
the boroughs to farm.' A few years later a new arrangement is made. The
king begins to let the borough of Gloucester to farm. A sum of £50
(blanch) is now deducted from the rent that the sheriff has been paying
for his shire, and, on the other hand, Osmund the reeve accounts for
£55, which is the rent of the borough. We must not antedate a change
which is taking place very gradually in the middle of the twelfth
century. Nor must we at once reject the inference that, as the bailiffs
to whom the sheriff lets the hundreds are chosen by him, so also the
bailiffs or portreeves to whom he lets the boroughs are or have been
chosen by him. It seems very possible that one of the first steps
towards independence that a borough takes is that its burgesses induce
the sheriff to accept their nominee as his farmer of the town if they in
mass will make themselves jointly and severally liable for the rent.
These movements take place in the dark and we can not date them; but to
antedate them would be easy.
[The community and the geld.]
We also see that the 'geld' that the borough has to pay is a round sum
that remains constant from year to year. Cambridge, for example, is
assessed at a hundred hides, Bedford at half a hundred[798]. Now we have
good reason to believe that, in the open country also, a round sum of
geld or (and this is the same thing) a round number of hides had been
thrown upon the hundreds, that the sum thrown upon a hundred was then
partitioned among the vills, and that the sum thrown upon a vill was
partitioned among the persons who held land in the vill. In the open
country, however, when once the partition had been made, the number of
hides that was cast upon the land of any one proprietor seems to have
been fixed for good and all[799]. If we suppose, for example, that a
vill had been assessed at ten hides and that five of those units had
been assigned to a certain Edward, then Edward or his successors in
title would always have to pay for five hides, and would have to pay for
no more although the other proprietors in the vill obtained an exemption
from the tax or were insolvent. In short, the tax though originally
distributed by a partitionary method was not repartitionable. On the
other hand, in the boroughs a more communal arrangement seems to have
prevailed. In some sense or another, the whole borough, no matter what
its fortunes might be, remained answerable for the twenty, fifty or a
hundred hides that had been imposed upon it. Such a difference would
naturally arise. In the open country the taxational hidation was
supposed to represent and did represent, albeit rudely, a state of facts
that had once existed. The man who was charged with a hide ought in
truth to have had one of those agrarian units that were commonly known
as hides. But when a borough was charged with hides, a method of
taxation that was adapted to and suggested by rural arrangements was
being inappropriately applied to what had become or would soon become
an urban district. Thus the gross sum that is cast upon the borough does
not split itself once and for all into many small sums each of which
takes root in a particular tenement. The whole sum is exigible from the
whole borough every time a geld is imposed. It is repartitionable.
[Partition of taxes.]
For all this, however, we must be careful not to see more communalism or
more local self-government than really exists. At first sight we may
think that we detect a communal or a joint liability of all the
burgesses for the whole sum that is due from the borough in any one
year. 'The English born' burgesses of Shrewsbury send up a piteous
wail[800]. They still have to pay the whole geld as they paid it in the
Confessor's day, although the earl has taken for his castle the sites of
fifty-one houses, and other fifty houses are waste, and forty-three
French burgesses hold houses which used to pay geld, and the earl has
given to the abbey, which he has founded, thirty-nine burgesses who used
to pay geld along with the others. But, when we examine the matter more
closely, we may doubt whether there is here any joint and several (to
say nothing of any corporate) liability. Very various are the modes in
which a land-tax or house-tax may be assessed and levied. Suppose a tax
of £100 imposed upon a certain district in which there are a hundred
houses. Suppose it also to be law that, though some of these houses come
to the hands of elemosynary corporations (which we will imagine to enjoy
an immunity from taxation) still the whole £100 must be raised annually
from the householders of the district. For all this, we have not as yet
decided that any householder will ever be liable, even in the first
instance, for more than his own particular share of the £100. A
readjustment of taxation there must be. It may take one of many forms.
There may be a revaluation of the district, and the £100 may be newly
apportioned by some meeting of householders or some government officer.
But, again, the readjustment may be automatic. Formerly there were 100
houses to pay £100. Now there are 90 houses to pay £100. That each of
the 90 must pay ten-ninths of a pound is a conclusion that the rule of
three draws for us. In the middle ages an automatic readjustment was all
the easier because of the common assumption that the value of lands and
houses was known to every one and that one virgate in a manor was as
good as another, one 'haw' in a borough as good as another[801]. We do
not say that the complaint of the burgesses at Shrewsbury points to no
more than an automatic readjustment of taxation which all along has been
a taxation of individuals; still the warning is needful that the
exaction at regular or irregular intervals of a fixed amount from a
district, or from the householders or inhabitants of a district, an
amount which remains constant though certain portions of the district
obtain immunity from the impost, does not of necessity point to any kind
of liability that is not the liability of one single individual for
specific sums which he and he only has to pay; nor does it of necessity
point to any self-governing or self-assessing assembly of
inhabitants[802].
[No corporation implied by the farming of the borough.]
Returning, however, to the case of Northampton, it certainly seems to
tell us of a composition, not indeed between the burgesses and the king,
but between the burgesses and the sheriff. 'The burgesses of Northampton
pay to the sheriff £30. 10_s._' We may believe that 'the burgesses' who
pay this sum have a chance of making a profit. If so, 'the burgesses'
are already beginning to farm 'the borough.' From this, nevertheless, we
must not leap to corporate liability or corporate property. Very likely
the sheriff regards every burgess of Northampton as liable to him for
the whole £30. 10_s._; very certainly, as we think, he does not look for
payment merely to property which belongs, not to any individual burgess
nor to any sum of individual burgesses, but to 'the borough' of
Northampton. Nor if the burgesses make profit out of tolls and fines,
does it follow that they have a permanent common purse; they may divide
the surplus every year[803], or we may suspect them of drinking the
profits as soon as they are made.
[Borough and county organization.]