or of naval service may seem more eloquent. Thus of Dover we are told
that the burgesses used to supply twenty ships for fifteen days in the
year with twenty-one men in each ship, and that they did this because
the king had released to them his sake and soke[804]. Here we seem to
read of a definite transaction between the king of the one part and the
borough of the other part, and one which implies a good deal of
governmental organization in the borough. We would say nothing to lessen
the just force of such a passage, which does not stand alone[805]; but
still there need be but little more organization in the borough of Dover
than there is in Berkshire. It was the custom of that county that, when
the king summoned his host, only one soldier went from every five hides,
while each hide provided him with four shillings for his equipment and
wages[806]. We may guess that in a county such a scheme very rapidly
'realized' itself and took root in the soil, that in a borough there was
less 'realism,' that there were more frequent readjustments of the
burden; but the difference is a difference of degree.
[Government of the boroughs.]
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.
[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.