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.]