[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.]

No one can spend patient hours in examining the complex web disclosed by

Domesday Book without making some theories, at least some guesses, about

the political, social and economic threads of which that web has been

woven. But if we here venture to fashion and state a few such theories

or such guesses, it is with no hope that they will be a complete

explanation of old English history. For, in the first place, we are to

speak mainly of the things of the law, of legal ideas and legal forms,

and once for all we may protest that we have no wish to overestimate

their importance. The elaborate and long continued development to which

we point when we speak of 'feudalism,' can not be fully explained by any

discussion of legal ideas and legal forms. On the other hand, it can not

be fully explained without such discussion, for almost all that we can

know about it is to be found in legal documents. In the second place, we

are to make a selection. Certain phases of our oldest legal history,

notably those which are called 'constitutional,' have been so fully

treated by classical books, that at the present moment there is no good

reason why we should traverse the ground that has been covered.

Therefore if, for example, we say little or nothing of the ancient

Germanic _comitatus_ or of the relationship between lord and man in so

far as it is a merely personal relationship, this will not be because we

have overlooked these matters; it will be because there is nothing to be

gained by our repeating what has been well and sufficiently said by Dr

Konrad Maurer, Dr Reinhold Schmid, Dr Stubbs and others. And if, again,

we lay great stress on what may be called the ecclesiastical phase of

the feudalizing process, this will not be because we think it the only

phase, it will be because we think that too little attention has been

paid by English writers to the influence which the churches exercised

upon temporal affairs by means of their endowments. The day for an

artistically proportioned picture of the growth of feudalism has not yet

come; the day for a quantitative analysis of the elements of feudalism

may never come; for the present we must be content if we can bring out a

few new truths or set a few old truths in a new light. The vast and

intricate subject may be approached from many different quarters. If we

can make some little progress along our chosen path, we shall be all the

more willing to admit that progress along other paths is possible.

[Fundamental controversies as to Anglo-Saxon history.]

It can not but be, however, that this part of our work should be

controversial, though it need not be polemical. We are told that 'in

spite of all the labour that has been spent on the early history of

England, scholars are still at variance upon the most fundamental of

questions: the question whether that history began with a population of

independent freemen or with a population of dependent serfs[854]'. Some

exception may be taken to this statement. No one denies that for the

purposes of English history slavery is a primitive institution, nor that

in the seventh and eighth centuries there were many slaves in England.

On the other hand, no one will assert that we can ascertain, even

approximately, the ratio that the number of slaves bore to the number of

free men. Moreover such terms as 'dependent' and 'independent' are not

words that we can profitably quarrel over, since they are inexact and

ambiguous. For all this, however, it may well be said that there are two

main theories before the world. The one would trace the English manor

back to the Roman villa, would think of the soil of England as being

tilled from the first mainly by men who, when they were not mere slaves,

were _coloni_ ascript to the land. The other would postulate the

existence of a large number of free men who with their own labour tilled

their own soil, of men who might fairly be called free 'peasant

proprietors' since they were far from rich and had few slaves or

servants, and yet who were no mere peasants since they habitually bore

arms in the national host. What may be considered for the moment as a

variant on this latter doctrine would place the ownership of the soil,

or of large tracts of the soil, not in these free peasants taken as

individuals, but in free village communities.

[The Romanesque theory unacceptable.]

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