Dark as the history of our villages may be, the history of the boroughs is darker yet; or rather, perhaps, the darkness seems blacker because we are compelled to suppose that it conceals from our view changes more rapid and intricate than those that have happened in the open country. The few paragraphs that follow will be devoted mainly to the development of one suggestion which has come to us from foreign , but which may throw a little light where every feeble ray is useful. At completeness we must not aim, and in our first words we ought to protest that no general theory will tell the story of every or any particular town.(1*)
In the thirteenth century a legal, though a wavering, line is drawn between the borough and the mere vill or rural township.(2*) It is a wavering line, for stress can be laid now upon one and now upon another attribute of the ancient and indubitable boroughs, and this selected attribute can then be employed as a test for the claims of other towns. When in Edward I's day the sheriffs are being told to bid every borough send two burgesses to the king's parliaments, there are somewhat more than 150 places to which such summonses will at times be addressed, though before the end of the middle ages the plumber of 'parliamentary boroughs' will have shrunk to 100 or thereabouts.(3*) Many towns seem to hover on the border line and in some cases the sheriff has been able to decide whether or not a town shall be represented in the councils of the realm. Yet if we go back to the early years of the tenth century, we shall still find this contrast between the borough and the mere township existing as a contrast where legal consequences flow. Where lies the contrast? What is it that makes a borough to be a borough? That is the problem that we desire to solve. It is a legal problem. We are not to ask why some places are thickly populated or why trade has flowed in this or that channel. We are to ask why certain vills are severed from other vills and are called boroughs.
We may reasonably wish, however, since mental pictures must be painted, to know at the outset whereabouts the line will be drawn, and whether when we are speaking of the Conqueror's reign and earlier times we shall have a large or a small number of boroughs on our hands. Will it be a hundred and fifty, or a hundred, or will it be only fifty? At once we will say that some fifty boroughs stand out prominently and will demand our best attention, though a second and far less important class was already being formed.
In the middle of the twelfth century the Exchequer was treating certain places in an exceptional fashion. It was subjecting them to a special tax in the form of an auxilium or donum. This fact we may take as the starting point for our researches. Now if we read the unique Pipe Roll of Henry I's reign and the earliest Pipe Rolls of Henry II's we observe that an 'aid' or a 'gift' is from time to time collected from the 'cities and boroughs,' and if we put down the names of the towns which are charged with this impost, we obtain a remarkable result.(4*) Speaking bry we may say that the only towns which pay are 'county towns.' For a large part of England this is strictly true. We will follow the order of Domesday beginning however with its second zone. If London is in Middlesex,(5*) it is Middlesex's one borough. In Hertfordshire is Hertford. In Buckinghamshire is Buckingham, but no aid can be expected from it. In Oxfordshire is Oxford. In Gloucestershire is Gloucester, but Winchcombe also asserts its burghal rank. In Worcestershire is Worcester, while Droitwich appears occasionally with a small gift. Hereford is the one borough of Herefordshire. Turning to the third zone, we pass rapidly through Cambridgeshire, Huntingdonshire, Bedfordshire and Northamptonshire; each has its borough. This will be true of Leicestershire also; but Leicester is by this time so completely in the hands of its earl that the king gets nothing from it. Nor, would it seem, does he get anything from Warwick. Half in Warwickshire, half in Staffordshire lies Tamworth; Stafford also pays. At times Bridgenorth appears beside Shrewsbury. Nothing is received from Chester, for it is the head of a palatinate. Derby, Nottingham and York are the only representatives of their shires. Lincolnshire has Stamford on its border as well as Lincoln in its centre. Norfolk has Thetford as well as Norwich; but Suffolk has only Ipswich and Essex only Colchester.
In the southern zone matters are not so simple. Kent contains Canterbury and Rochester; Surrey contains Guildford and Southwark; Sussex only Chichester. Hampshire has Winchester; Southampton is receiving special treatment. Wallingford represents Berkshire. When we get to Wiltshire and Dorset we are in the classical land of small boroughs. There are various little towns whose fate is in the balance; Marlborough and Calne seem for the moment to be the most prominent. In Somersetshire, whatever may have been true in the past, Ilchester is standing out as the one borough that pays an aid. Exeter has now no second in Devonshire. If there is a borough in Cornwall, it makes no gift to the king.
We may obtain some notion of the relative rank of these towns if we set forth the amounts with which they are charged in 1130 and in 1156, though the materials for this comparison are unfortunately incomplete.
Pipe Roll Pipe Roll
31 Hen. I 2 Hen. II
?
? London
120
120 Winchester
80 Lincoln
60
60 York
40
40 Norwich
30
33 1/3 Exeter
20 Canterbury
20
13 1/3 Colchester
20
12 2/3(6*) Oxford
20
20 Gloucester
15
15 Wallingford
15 Worcester
15 Cambridge
12
12 Hereford
10 Thetford
10 Northampton
10 Rochester
10 Nottingham |
15
15 Derby
| Wiltshire boroughs
17 Calne
1 Dorset boroughs
15 Huntingdon
8
8 Ipswich
7
3 1/3 Guildford
5
5 Southwark
5
5 Hertford
5 Stamford
5 Bedford
5
6 2/3 Shrewsbury
5 Droitwich
5 Stafford
3 1/3
3 1/3 Winchcombe
3
5 Tamworth
2 3/4
1 1/4(7*) Ilchester
2 1/2 Chichester(8*)
Now we are not putting this forward as a list of those English towns that were the most prosperous in the middle of the twelfth century. We have made no mention of flourishing seaports, of Dover, Hastings, Bristol, Yarmouth. Nor is this a list of all the places that are casually called burgi on rolls of Henry II's reign. That name is given to Scarborough, Knaresborough, Tickhill, Cirencester and various other towns. New tests of 'burgality' (if we may make that word) are emerging and old tests are becoming obsolete. We see too that some towns are dropping out of the list of aid-paying boroughs. In 1130 Wallingford has thrice failed to pay its aid of ?5 and the whole debt of ?5 must be forgiven to the burgesses pro paupertate eorum.(9*) So Wallingford drops out of this list. Probably Buckingham has dropped out at an earlier time for a similar reason. But still this list, especially in the form that it takes in Henry I's time, is of great importance to those who are going to study the boroughs of Domesday It looks like a traditional list. It deals out nice round sums. It is endeavouring to keep Wallingford on a par with Gloucester and above Northampton. It is retaining Winchcombe.
If we make the experiment, we shall discover that this catalogue really is a good prologue to Domesday We will once more visit the counties which form the second zone. The account that our record gives of Hertfordshire has a preface. That preface deals with the borough of Hertford and precedes even the list of the Hertfordshire tenants in chief. Buckingham in Buckinghamshire and Oxford in Oxfordshire are similarly treated. In Gloucestershire the city of Gloucester and the borough of Winchcombe are described before the body of the county is touched. In Worcestershire, Herefordshire, Cambridgeshire, Huntingdonshire, Bedfordshire, Northamptonshire, Leicestershire, Warwickshire, Staffordshire,(10*) Shropshire, Cheshire, Derbyshire, Nottinghamshire(11*) and Yorkshire the same procedure is adopted: the account of the shire's city or borough precedes the account of the shire. In Lincolnshire the description of the county is introduced by the description of Lincoln and Stamford; also of Torksey, which had been a place of military importance and seems to have been closely united with the city of Lincoln by some governmental bond.(12*) Convenient arrangement is not the strong point of 'Little Domesday'; but what is said therein of Colchester is said at the very end of the survey of Essex, while Norwich, Yarmouth and Thetford stand at the end of the royal estates in Norfolk, and Ipswich stands at the end of the royal estates in Suffolk.
If now we enter the southern zone and keep in our minds the scheme that we have seen prevailing in the greater part of England, we shall observe that the account of Kent has a prologue touching Dover, Canterbury and Rochester. In Berkshire an excellent account of Wallingford precedes the rubric Terra Regis. Four places in Dorset are singled out for prefatory treatment, namely, Dorchester, Bridport, Wareham and Shaftesbury. In Devon Exeter stands, if we may so speak, above the line, and stands alone, though Barnstaple, Lidford and Totness are reckoned as boroughs. Of the other counties there is more to be said. If we compare the first page of the survey of Somerset with the first pages that are devoted to its two neighbours, Dorset and Devon, we shall probably come to the conclusion that the compilers of the scrupled to put any Somerset vill on a par with Exeter, Dorchester, Bridport, Wareham and Shaftesbury. In each of the three cases the page is mapped out in precisely the same fashion. The second column is headed by Terra Regis. A long way down in the first column begins the list of tenants in chief. The upper part of the first column contains in one case the account of Exeter, in another the account of the four Dorset boroughs, but in the third case, that of Somerset, it is left blank. In Wiltshire, Malmesbury and Marlborough stand above the line; but, if we look to the foot of the page, we shall suspect that the compilers can not easily force their general scheme upon this part of the country. In Surrey, no place stands above the line. Guildford is the first place mentioned in the Terra Regis; Southwark seems to be inadequately treated on a later page. The case of Sussex is like that of Somerset; the list of the tenants in chief is preceded by a blank space. In Hampshire a whole column is left blank. On a later page the borough of Southampton has a column to itself; in the next column stands the Terra Regis of the Isle of Wight. And now let us turn back to the Middlesex that we have as yet ignored. Nearly two columns, to say nothing of some precedent pages are void.(13*)
Now we must not be led away into speculations which would be vain. We must not, for example, inquire whether the information that had been obtained touching London and Winchester was too bulky to fill a room that had been left for it. We must not inquire whether something was to be said of Chichester or Hastings, of Ilchester or of Bristol, that has not been said. But apparently we may attribute to King William's officials a certain general idea. It is an idea which suits the greater part of England very well, though they find difficulties in their way when they endeavour to impose it on some of the counties that lie south of the Thames. The brfact stands clear that throughout the larger part of England the commissioners found a town in each county, and in general one town only, which required special treatment. They do not locate it on the Terra Regis; they do not locate it on any man's lands. It stands outside the general system of land tenure.
For a while, then, let us confine our attention to these county towns, and we shall soon see why it is that they are rarely brought under any rubric which would describe them as pieces of the king's soil or pieces of some one else's soil. The trait to which we allude we shall call (for want of a better term) the tenurial heterogeneity of the burgesses. In those boroughs that are fully described we seldom, if ever, find that all the burgesses have the same landlord. Of course there is a sense in which, according to the view of the Domesday surveyors and of all later lawyers, every inch of borough land is held of one landlord, namely, the king; but in that sense every inch of England has the same landlord. The fact that we would bring into relief is this, that normally the burgesses of the borough do not hold their burgages immediately of one and the same lord; they are not 'peers of a tenure'; the group that they constitute is not a tenurial group. Far rather we shall find that, though there will be some burgesses holding immediately of the king, there will be others whose titles can be traced to the king only through the medium of other lords. And the mesne lord will often be a very great man, some prelate or baron with a widespread honour. Within the borough he will, to use the language of Domesday 'have' or 'hold' a small group of burgesses, and sometimes they will be reckoned as annexed to or as 'lying in' some manor distant from the town. It seems generally expected that the barons of the county should have a few burgages apiece in the county town. This arrangement does not look new. Seemingly the great men of an earlier day, the antecessores of the Frenchmen, have owned town-houses: not so much houses for their own use, as houses or 'haws' (hagae) in which they could keep a few 'burgesses.'
Some examples of this remarkable arrangement should be given. First we will look at Oxford. The king has many houses; the Archbishop of Canterbury has 7; the Bishop of Winchester 9; the Bishop of Bayeux 18; the Bishop of Lincoln 30; the Bishop of Coutances 2; the Bishop of Hereford 3 ; the Abbot of St. Edmunds's 1; the Abbot of Abingdon 14; the Abbot of Eynsham 13. And so with the worldly great:the Count of Mortain has 10; Count Hugh has 7; the Count of Evreux 1; Robert of Ouilly 12; Roger of Ivry 15; Walter Giffard 17: -- but we need not repeat the whole long list.(1*)
It is so at Wallingford; King Edward had 8 virgates on which were 276 houses, and they paid him ?1 rent; Bishop Walkelin of Winchester has 27, which pay 25 shillings; the Abbot of Abingdon has two acres, on which are 7 houses paying 4 shillings; Milo Crispin has 20 houses, which pay 12 shillings and 10 pence; and so forth.(15*) Further, it is said that the Bishop's 27 houses are valued in Brightwell; and, turning to the account of Brightwell, there, sure enough, we find mention of the 25 shillings which these houses pay.(16*) Milo's 20 houses are said to 'lie in' Newnham; he has also in Wallingford 6 houses which are in Hazeley, 1 which is in Stoke, 1 which is in Chalgrove, one acre with 6 houses which is in Sutton, one acre with 11 houses which is in Bray; 'all this land' we are told 'belongs to Oxfordshire, but nevertheless it is in Wallingford.' Yes, Milo's manor of Chalgrove lies five, his manor of Hazeley lies seven, miles from Wallingford; nevertheless, houses which are physically in Wallingford are constructively in Chalgrove and Hazeley. That we are not dealing with a Norman y is in this case extremely plain. Wallingford is a border town. We read first of the Berkshire landowners who have burgesses within it. There follows a list of the Oxfordshire 'thegns' who hold houses in Wallingford. Archbishop Lanfranc and Count Hugh appear in this context as 'thegns' of Oxfordshire.
When we have obtained this clue, we soon begin to see that what is true of Oxford and Wallingford is true even of those towns of which no substantive description is given us. Thus there are 'haws' or town-houses in Winchester which are attached to manors in all corners of Hampshire, at Wallop, Clatford, Basingstoke, Eversley, Candover, Strathfield, Minstead and elsewhere. Some of the manors to which the burghers of London were attached are not, even in our own day, within our monstrous town; there are some at Banstead and Bletchingley in Surrey, at Waltham and Thurrock in Essex. But in every quarter we see this curious scheme. At Warwick the king has in his demesne 113 houses, and his barons have 112.(17*) Of the barons' houses it is written: 'These houses belong to the lands which the barons hold outside the borough and are valued there.' Or turn we to a small town: -- at Buckingham the barons have 26 burgesses; no one of them has more than 5.(18*) The page that tells us this presents to us an admirable contrast between Buckingham and its future rival. Aylesbury is just an ordinary royal manor and stands under the rubric Terra Regis. Buckingham is a very petty townlet; but it is a borough, and Count Hugh and the Bishop of Coutances, Robert of Ouilly, Roger of Ivry, Arnulf of Hesdin and other mighty men have burgesses there. As a climax we may mention the case of Winchcombe. The burgages in this little town were held by many great people. About the year 1100 the king had 60; the Abbot of Winchcombe 40; the Abbot of Evesham 2; the Bishop of Hereford 2; Robert of Bell阭e 3 ; Robert Fitzhamon 5, and divers other persons of note had some 29 houses among them.(19*) However poor, however small, Winchcombe may have been, it radically differed from the common manor and the common village.
We have seen above how in the Conqueror's day the Abbey of Westminster had a manor at Staines(20*) and how that manor included 48 burgesses who paid 40s. a year. Were those burgesses really in Staines, and was Staines a borough? No, they were in the city of London. The Confessor had told his Middlesex thegns how he willed that St Peter and the brethren at Westminster should have the manor (cotlif) of Staines with the land called Staninghaw (mid dam lande Staeningehaga) within London and all other things that had belonged to Staines.(21*) Is not the guess permissible that Staining Lane in the City of London,(22*) wherein stood the church of St Mary, Staining, was so called, not 'because stainers lived in it' but because it once contained the haws of the men of Staines? We must be careful before we find boroughs in Domesday for its language is deceptive. Perhaps we may believe that really and physically there were forty-six burgesses in the vill of St Albans;(23*) but, after what we have read of Staines, can we be quite sure that these burgesses were not in London? The burgesses who de iure 'are in' one place are often de facto in quite another place.
We may for a moment pass over two centuries and turn to the detailed account of Cambridge given to us by the Hundred Rolls, the most elaborate description that we have of any medieval borough. Now in one sense the 'vill' or borough of Cambridge belongs to the king, and, under him, to the burgesses, for they hold it of him in capite at a fee-farm rent. But this does not mean that each burgess hold his tenement of the corporation or communitas of burgesses, which in its turn holds every yard of land of the king in chief. It does not even mean that each burgess holds immediately of the king, the communitas intervening as farmer of the king's rents.(24*) No, the titles of the various burgesses go up to the king by many various routes. Some of them pay rents to the officers of the borough who are the king's farmers; but many of them do not. The Chancellor and Masters of the University, for example, hold three messuages in the vill of Cambridge; 'but,' say the sworn burgesses, 'what they pay for the same, we do not know and cannot discover.'(25*) How could it be otherwise? Domesday shows us that the Count of Britanny had ten burgesses in Cambridge.(26*) Count Alan's houses will never be held in chief of the crown by any burgess: they will form part of the honour of Richmond to the end of time. We may take another example which will show the permanence of proprietary arrangements in the boroughs. From an account of Gloucester which comes to us from the year 1100 or thereabouts we learn that there were 300 houses in the king's demesne and 313 belonging to other lords. From the year 1455 we have another account which tells of 310 tenements paying landgavel to the king's farmers and 346 which pay them nothing.(27*)
Perhaps no further examples are needed. But this tenurial heterogeneity seems to be an attribute of all or nearly all the very ancient boroughs, the county towns. In some cases the king was the landlord of far the greater number of the burgesses. In other cases the bishop became in course of time the lord of some large quarter of a town in which his cathedral stood. At Canterbury and Rochester, at Winchester and Worcester, this process had been at work from remote days; the bishops had been acquiring land and 'haws' within the walls.(28*) But we can see that in Henry I's day there were still four earls who were keeping up their interest in their burgesses at Winchester.(29*) In the later middle ages we may, if we will, call these places royal boroughs and the king's 'demesne boroughs,' for the burgesses derive their 'liberties' directly from the king. But we must keep these ancient boroughs well apart from any royal manors which the king has newly raised to burghal rank. In the latter he will be the immediate landlord of every burgess; in the former a good deal of rent will be paid, not to him, nor to the community as his farmers, but to those who are filling the shoes of the thegns of the shire.
This said, we will turn back our thoughts to the oldest days. The word that deserves our best attention is burh, the future borough, for little good would come of an attempt to found a theory upon the Latin words, such as civitas, oppidum and urbs which occur in some of those magniloquent land-.(30*) Now it seems fairly clear that for some long time after the Germanic invasions the word burh meant merely a fastness, a stronghold, and suggested no thick population nor any population at all. This we might learn from the map of England. The hill-top that has been fortified as a burh. Very often it has given its name to a neighbouring village.(31*) But, to say nothing of hamlets, we have full two hundred and fifty parishes whose names end in burgh, borough or bury, and in many cases we see no sign in them of an ancient camp or of an exceptionally dense population. It seems a mere chance that they are not tons or hams, worths or thorpes. Then again, in Essex and neighbouring shires it is common to find that in the village called X there is a squire's mansion or a cluster of houses called X-bury. Further, we can see plainly from our oldest laws that the palisade or entrenchment around a great man's house is a burh. Thus Alfred: The king's burh-bryce (the sum to be paid for breaking his burh) is 120 shillings, an archbishop's 90 shillings, another bishop's 60 shillings, a twelve-hundred man's 30 shillings, a six-hundred-man's 15 shillings, a ceorl's edor-bryce (the sum to be paid for breaking his hedge) 5 shillings.(32*) The ceorl, whose wer is 200 shillings, will not have a burh, he will only have a hedge round his house; but the man whose wer is 600 shillings will probably have some stockade, some rude rampart; he will have a burh.
We observe the heavy bot of 120 shillings which protects the king's burh. May we not see here the very first stage in the legal history of our boroughs? We pass over some centuries and we read in a statement of the Londoners' customs that a man who is guilty of unlawful violence must pay the king's burh-bryce of five pounds.(33*) And then the Domesday surveyors tell us how at Canterbury every crime committed in those streets which run right through the city is a crime against the king, and so it is if committed upon the high-r outside the city for the space of one league, three perches and three feet.(34*) This curious accuracy over perches and feet sends us to another ancient document: -- 'Thus far shall the king's peace (grid) extend from his burh-geat where he is sitting towards all four quarters, namely, three miles, three furlongs, three acre-breadths, nine feet, nine hand-breadths, nine barleycorns.'(35*) And then we remember how Fleta tells us that the verge of the king's palace is twelve leagues in circumference, and how within that ambit the palace court, the king's most private court, has jurisdiction.(36*)
Has not legal fiction been at work since an early time? Has not the sanctity of the king's house extended itself over a group of houses? The term burh seems to spread outwards from the defensible house of the king and with it the sphere of his burh-bryce is amplified. Within the borough there reigns a special peace. This has a double meaning: -- not only do acts which would be illegal anywhere become more illegal when they are done within the borough, but acts which would be legal elsewhere are illegal there. King Edmund legislating against the blood-feud makes his burh as sacred as a church; it is a sanctuary where the feud may not be prosecuted.(37*) If in construing such a passage we doubt how to translate burh, whether by house or by borough, we are admitting that the language of the law does not distinguish between the two. The Englishman's house is his castle, or, to use an older term, his burh; the king's borough is the king's house, for his house-peace prevails in its streets.(38*)
Our oldest laws seem to know no burh other than the strong house of a great (but he need not be a very great) man. Early in the tenth century, however, the word had already acquired a new meaning. In AEthelstan's day it seems to be supposed by the legislator that a moot will usually be held in a burh. If a man neglects three summonses to a moot, the oldest men of the burh are to ride to his place and seize his goods.(39*) Already a burh will have many men in it. Some of them will be elder-men, aldermen. A moot will be held in it. Very possibly this will be the shire-moot, for, since there is riding to be done, we see that the person who ought to have come to the moot may live at a distance.(40*) A little later the burh certainly has a moot of its own. Edgar bids his subjects seek the burh-gemot as well as the scyr-gemot and the hundred-gemot. The borough-moot is to be held thrice a year.(41*) At least from this time forward, the borough has a court. An important line is thus drawn between the borough and the mere tun. The borough has a court; the village has none, or, if the villages are getting courts, this is due to the action of lords who have sake and soke and is not commanded by national law. National law commands that there shall be a moot thrice a year in every burh.
The extension of the term burh from a fortified house to a fortified group of houses must be explained by those who are skilled in the history of military affairs. It is for them to tell us, for example, how much use the Angles and Saxons in the oldest days made of the entrenched hill-tops, and whether the walls of the Roman towns were continuously repaired.(42*) Howbeit, a time seems to have come, at latest in the struggle between the Danish invaders and the West-Saxon kings, when the establishment and maintenance of what we might call fortified towns was seen to be a matter of importance. There was to be a cluster of inhabited dwellings which as a whole was to be made defensible by ditch and mound, by palisade or wall. Edward the Elder and the Lady of the Mercians were active in this work. Within the course of a few years burgs were 'wrought' or 'timbered' at Worcester, Chester, Hertford, Witham in Essex, Bridgnorth, Tamworth, Stafford, Warwick, Eddisbury, Warbury, Runcorn, Buckingham, Towcester, Maldon, Huntingdon.(43*) Whatever may be meant by the duty of repairing burgs when it is mentioned in charters coming from a somewhat earlier time, it must for the future be that of upholding those walls and mounds that the king and the lady are rearing. The land was to be burdened with the maintenance of strongholds. The land, we say. That is the style of the land-. Land, even though given to a church, is not to be free (unless by exceptional favour) of army-service, bridge-work and borough-bettering or borough-fastening. Wallwork(44*) is coupled with bridge-work; to the duty of maintaining the county bridges is joined the duty of constructing and repairing the boroughs. Shall we say the 'county boroughs'?
Let us ask ourselves how the burden that is known as burh-bot, the duty that the Latin charters call constructio, munitio, restauratio, defensio, arcis (for arx is the common term) will really be borne. Is it not highly probable, almost certain, that each particular tract of land will be ascript to some particular arx or castellum,(45*) and if, for instance, there is but one burh in a shire, all the lands in that shire must help to better that burh. Apportionment will very likely go further. The man with five hides will know how much of the mound or the wall he must maintain, how much 'wall-work' he must do. We see how the old bridge-work becomes a burden on the estates of the county landowners. From century to century the Cambridgeshire landowners contribute according to their hidage to repair the most important bridge of their county, a bridge which lies in the middle of the borough of Cambridge. Newer arrangements, the rise of castles and of borough communities, have relieved them from the duty of 'borough-fastening;' but the bridge-work is apportioned on their lands.
The exceedingly neat and artificial scheme of political geogrAphy that we find in the midlands, in the country of the true 'shires,' forcibly suggests deliberate delimitation for military purposes. Each shire is to have its borough in its middle. Each shire takes it name from its borough. We must leave it for others to say in every particular case whether and in what sense the shire is older than the borough or the borough than the shire: whether an old Roman chester was taken as a centre or whether the struggles between Germanic tribes had fixed a circumference. But a policy, a plan, there has been, and the outcome of it is that the shire maintains the borough.(46*)
There has come down to us in a sadly degenerate form a document which we shall hereafter call 'The Burghal Hidage.'(47*) It sets forth, so we believe, certain arrangements made early in the tenth century for the defence of Wessex against Danish inr. It names divers strongholds, and assigns to each a large number of hides. A few of the places that it mentions we have not yet found on the map. Beginning in the east of Sussex and following the order of the list, we seem to see Hastings, Lewes, Burpham (near Arundel), Chichester, Porchester, Southampton, Winchester, Wilton, Tisbury (or perhaps Chisenbury), Shaftesbury, Twyneham, Wareham, Bredy, Exeter, Halwell near Totness, Lidford, Barnstaple, Watchet, Axbridge; then Langport and Lyng (which defend the isle of Athelney), Bath, Malmesbury, Cricklade, Oxford, Wallingford, Buckingham, Eastling near Guildford, and Southwark. Corrupt and enigmatical though this catalogue may be, it is of the highest importance. It shows how in the great age of burg-building the strongholds had wide provinces which in some manner or another were appurtenant to them, and it may also give us some previous hints about places in Wessex which once were national burgs but which forfeited their burghal character in the tenth century. Guildford seems to have risen at the expense of Eastling and Totness at the expense of Halwell, while Tisbury, Bredy and Watchet (if we are right in fancying that they are mentioned) soon lost caste. Lyng is not a place which we should have named among the oldest of England's burgs, and yet we have all read how Alfred wrought a 'work' at Athelney. In Wessex burgs rise and fall somewhat rapidly. North of the Thames the system is more stable. Also it is more artificial, for north of the Thames civil and military geography coincide.
Let us now look once more at the Oxford of Domesday The king has twenty 'mural houses'(48*) which belonged to Earl AElfgar; they pay 13s. 2d. He has a house of 6d. which is constructively at Shipton; one of 4d. at Bloxham; one of 30d. at Risborough and two of 4d. at Twyford in Buckinghamshire. 'They are called mural houses because, if there be need and the king gives order, they shall repair the wall.' There follows a list of the noble houseowners, an archbishop, six bishops, three earls and so forth. 'All the above hold these houses free because of the reparation of the wall. All the houses that are called "mural" were in King Edward's time free of every thing except army service and wall-work.' Then of Chester we read this:(49*) -- 'To repair the wall and the bridge, the reeve called out one man from every hide in the county, and the lord whose man did not come paid 40s. to the king and earl.' The duty of maintaining the bulwark of the county's borough is incumbent on the magnates of the county. They discharge it by keeping haws in the borough and burgesses in those haws.(50*)
We may doubt whether the duty of the county to its borough has gone no further than mere 'wall-work.' A tale from the older Saxony may come in well at this point. When the German king Henry the Fowler was building burgs in Saxony and was playing the part that had lately been played in England by Edward and AEthelflaed, he chose, we are told, the ninth man from among the agrarii milites; these chosen men were to live in the burgs; they were to build dwellings there for their fellows (confamiliares) who were to remain in the country tilling the soil and carrying a third of the produce to the burgs, and in these burgs all concilia and conventus und convivia were to be held.(51*) Modern historians have found in this story some difficulties which need not be noticed here. Only the core of it interests us. Certain men are clubbed together into groups of nine for the purpose of maintaining the burg as a garrisoned and victualled stronghold in which all will find room in case a hostile inrbe made.
Turning to England we shall not forget how in the year 894 Alfred divided his forces into two halves; half were to take the field, half to remain at home, besides the men who were to hold the burgs;(52*) but at all events we shall hardly go astray if we suggest that the thegns of the shire have been bound to keep houses and retainers in the borough of their shire and that this duty has been apportioned among the great estates.(53*) We find that the baron of Domesday has a few burgesses in the borough and that these few burgesses 'belong' in some sense or another to his various rural manors. Why should he keep a few burgesses in the borough and in what sense can these men belong some to this manor and some to that? To all appearance this arrangement is not modern. King Edmund conveyed to his thegn AEthelweard an estate of seven hides at Tistead in Hampshire and therewith the haws within the burg of Winchester that belonged to those seven hides.(54*) When the Bishop of Worcester loaned out lands to his thegns, the lands carried with them haws in the 'port' of Worcester.(55*) We have all read of the ceorl who 'throve to. thegn-right., He had five hides of his own land, a church and a kitchen, a bell-tower and a burh-geat-setl, which, to our thinking, is just a house in the 'gate,' the street of the burh.(56*) He did not acquire a town-house in order that he might enjoy the pleasures of the town. He acquired it because, if he was to be one of the great men of the county, he was bound to keep in the county's burh retainers who would do the wallwork and hoard provisions sent in to meet the evil day when all men would wish to be behind the walls of a burh.
We have it in our modern heads that the medieval borough is a sanctuary of peace, an oasis of 'industrialism' in the wilderness of 'militancy.' Now a sanctuary of peace the borough is from the very first. An exceptional and exalted peace reigns over it. If you break that peace you incur the king's burh-bryce. But we may strongly suspect that the first burgmen, the first burgenses, were not an exceptionally peaceful folk. Those burhwaras of London who thrashed Swegen(57*) and chose kings were no sleek traders; nor must we speak contemptuously of 'trained bands of apprentices' or of 'the civic militia.' In all probability these burg-men were of all men in the realm the most professionally warlike. Were we to say that in the boroughs the knightly element was strong we might mislead, for the word knight has had chivalrous adventures. However, we may believe that the burgensis of the tenth century very often was a cniht, a great man's cniht, and that if not exactly a professional soldier (professional militancy was but beginning) he was kept in the borough for a military purpose and was perhaps being fed by the manor to which he belonged. These knights formed gilds for religious and convivial purposes. At Cambridge there was a gild of thegns, who were united in blood-brotherhood. We cannot be certain that all these thegns habitually lived in Cambridge. Perhaps we should rather say that already a Cambridgeshire club had its head-quarters in Cambridge and there held its 'morning-speeches' and its drinking bouts. These thegns had 'knights' who seem to have been in some sort inferior members of the gild and to have been bound by its rules.(58*) Then we hear of 'knight-gilds' at London and Canterbury and Winchester.(59*) Such gilds would be models for the merchant-gilds of after-days, and indeed when not long after the Conquest we catch at Canterbury our first glimpse of a merchant-gild, its members are calling themselves knights: knights of the chapman-gild.(60*) Among the knights who dwelt in the burg such voluntary societies were the more needful, because these men had not grown up together as members of a community. They came from different districts and had different lords. In this heterogeneity we may also see one reason why a very stringent peace, the king's own house-peace, should be maintained, and why the borough should have a moot of its own. When compared with a village there is something artificial about the borough.
This artificiality exercised an influence over the later fate of the boroughs. The ground had been cleared for the growth of a new kind of community, one whose members were not bound together by feudal, proprietary, agricultural ties. But the strand that we have been endeavouring to trace is broken at the Conquest. The castle arises. It is garrisoned by knights who are more heavily armed and more professionally militant than were their predecessors. The castle is now what wants defending; the knights who defend it form no part of the burghal community, and perhaps 'the castle fee' is in law no part of the borough. And yet let us see how in the twelfth century the king's castle at Norwich was manned. It was manned by the knights of the Abbot of St Edmund's. One troop served there for three months and then was relieved by another, and those who were thus set free went home to the manors with which the abbot had enfeoffed them and which they held by the service of castle-guard.(61*) Much in this arrangement is new; the castle itself is new; but it is no new thing, we take it, that the burh should be garrisoned by the knights of abbots or earls. And who built the castles, who built the Tower of London? Let us read what the chronicler says of the year 1097: -- Also many shires which belonged to London for work(62*) were sorely harassed by the wall that they wrought around the tower, and by the bridge, which had been nearly washed away, and by the work of the king's hall that was wrought at Westminster. There were shires or districts which of old owed this work or work of this kind to London-bury.(63*)
Long before the Conquest, however, a force had begun to play which was to give to the boroughs their most permanent characteristic. They were to be centres of trade. We must not exclude the hypothesis that some places were fortified and converted into burgs because they were already the focuses of such commerce as there was. But the general logic of the process we take to have been this: -- The king's burh enjoys a special peace: Even the men who are going to or coming from it are under royal protection: Therefore within its walls men can meet together to buy and sell in safety: Also laws which are directed against theft command that men shall not buy and sell elsewhere: Thus a market is established: Traders begin to build booths round the market-place and to live in the borough. A theory has indeed been brilliantly urged which would find the legal germ of the borough rather in a marketpeace than in the peace of a burg.(64*) But this doctrine has difficulties to meet. A market-peace is essentially temporary, while the borough's peace is eternal. A market court, if it arises, will have a jurisdiction only over bargains made and offences committed on market-days, whereas the borough court has a general competence and hears pleas relating to the property in houses and lands. Here in England during the Angevin time the 'franchise,' or royally granted right, of holding a market is quite distinct from the legal essence of the borough. Lawful markets are held in many places that are not boroughs; indeed in the end by calling a place 'a mere market-town' we should imply that it was no borough. Already in Domesday this seems to be the case. Markets are being held and market-tolls are being taken in many vills which are not of burghal rank.(65*) Perhaps also we may see the boroughpeace and the market-peace lying side by side. In the Wallingford of the Confessor's day there were many persons who had sake and soke within their houses. If anyone spilt blood and escaped into one of those houses before he was attached, the owner received the blood-wite. But it was not so on Saturdays, for then the money went to the king 'because of the market.'(66*) Thus the king's borough-peace seems to be intensified on market-days; on those days it will even penetrate the houses of the immunists. So at Dover some unwonted peace or 'truce' prevailed in the town from St Michael's Day to St Andrew's: that is to say, during the herring season.(67*)
The establishment of a market is not one of those indefinite phenomena which the historian of law must make over to the historian of economic processes. It is a definite and a legal act. The market is established by law. It is established by law which prohibits men from buying and selling elsewhere than in a duly constituted market. To prevent an easy disposal of stolen goods is the aim of this prohibition. Our legislators are always thinking of the cattle-lifter. At times they seem to go the full length of decreeing that only in a 'port' may anything be bought or sold, unless it be of trifling value; but other dooms would also sanction a purchase concluded before the hundred court. He who buys elsewhere runs a risk of being treated as a thief if he happens to buy stolen goods.(68*) Official witnesses are to be appointed for this purpose in every hundred and in every burh: twelve in every hundred and small burh, thirty-three in a large burh.(69*) Here once more we see the burh co-ordinated with the hundred. A by-motive favours this establishment of markets. Those who traffic in the safety of the king's burh may fairly be asked to pay some toll to the king. They enjoy his peace; perhaps also the use of royal weights and measures, known and trustworthy, is another part of the valuable consideration that they receive. First and last throughout the history of the boroughs toll is a matter of importance.(70*) It gives the king a revenue from the borough, a revenue that he can let to farm. Also, though we do not think that the borough court was in its origin a mere market court, the disputes of the market-place will provide the borough court with plentiful litigation, and in this quarter also the king will find a new source of income. Among the old land- that which speaks most expressly of the profits of jurisdiction as the subject-matter of a gift is a charter which concerns the town of Worcester. AEthelred and AEthelflaed, the ealdorman and lady of the Mercians, have, at the request of the bishop, built a burh at Worcester, and they declare that of all the rights that appertain to their lordship both in market (on ceapstowe) and in street, within the burh and without, they have given half to God and St Peter, with the witness of King Alfred and all the wise of Mercia. The lord of the church is to have half of all, be it land-fee, or fiht-wite, stealing, wohceapung (fines for buying or selling contrary to the rules of the market) or borough-wall-scotting.(71*) Quite apart from the rent of houses, there is a revenue to be gained from the borough.
Another rule has helped to define the borough, and this rule also has its root among the regalia. No one, says King AEthelstan, is to coin money except in a port; in Canterbury there may be seven moneyers, four of the king, two of the bishop, one of the abbot; in London-borough eight; in Winchester six; in Lewes two; in Hastings one; in Chichester one; in Hampton two; in Wareham two; in Exeter two; in Shaftesbury two, and in each of the other boroughs one.(72*) Already, then, a burh is an entity known to the law: every burh is to have its moneyer.
We have thus to consider the burh (1) as a stronghold, a place of refuge, a military centre: (2) as a place which has a moot that is a unit in the general, national system of moots: (3) as a place in which a market is held. When in the laws this third feature is to be made prominent, the burh is spoken of as a port, and perhaps from the first there might be a port which was not a burh.(73*) The word port was applied to inland towns. To this usage of it the portmoot or portmanmoot that in after days we may find in boroughs far from the coast bears abiding testimony. On the other hand, except on the seaside, this word has not become a part of many English place names.(74*) If, as seems probable, it is the Latin portus, we apparently learn from the use made of it that at one time the havens (and some of those havens may not have been in England) were the only known spots where there was much buying and selling. But be it remembered that a market-place, a ceap-stow, does not imply a resident population of buyers and sellers; it does not imply the existence of retailers.(75*)
We cannot analyse the borough population; we cannot weigh the commercial element implied by port or the military element implied by burh; but to all seeming the former had been rapidly getting the upper hand during the century which preceded the making of Domesday If we are on the right track, there was a time when the thegns of the shire must have regarded their borough haws rather as a burden than as a source of revenue. They kept those haws because they were bound to keep them. On the other hand, the barons of the Conqueror's day are deriving some income from these houses. Often it is very small. Count Hugh, for example, has just one burgess at Buckingham who pays him twenty-six pence a year.(76*) All too soon, it may be, had the boroughs put off their militancy. Had they retained it, England might never have been conquered. Houses which should have been occupied by 'knights' were occupied by chapmen.
But this is not the whole difficulty. Even if we could closely watch the change which substitutes a merchant or shopkeeper for a 'knight' as the typical burg-man or burgess, we should still have to investigate an agrarian problem. Very likely we ought to think that even on the eve of the Conquest the group of men which dwells within the walls is often a group which by tilling the soil produces a great part of its own food, though some men may be living by handicraft or trade and some may still be supported by those manors to which they 'belong.' In one case the institutions that are characteristic of burh and port may have been superimposed upon those of an ancient village which had common fields. In another an almost uninhabited spot may have been chosen as the site for a stronghold. In the former and, as we should fancy, the commoner case a large choice is open to the constructive historian, for he may suppose that the selected village was full of serfs or full of free proprietors, that the soil was royal demesne or had various landlords. In one instance he may think that he sees the coalescence of several little communities that were once distinct; in another the gradual occupation of a space marked out by Roman walls. The one strong hint that is given to us by Domesday and later documents is that our generalities should be few and that, were this possible, each borough should be separately studied.
As a rule, quite half of the burgesses in any of those county towns that 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.(77*) 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'.(78*) 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.(79*) Thus, though many of the burgesses may till the soil, the borough community is not an agrarian community. We cannot 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.
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.(80*) 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 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.(81*) 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.' Anyone 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.(82*)
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.(83*) 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.(84*) 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.
Traces are few in Domesday 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 laod 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. 7d. 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.(85*) 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,'(86*) 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,'(87*) 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.(88*) 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 ?8 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.(89*) 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.(90*) 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.'(91*) 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.(92*) But to see a municipal corporation in the burghers' gild of Domesday would be very rash. We do not know that all the burghers belonged to it or that it had any governmental functions.(93*)
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 on to the pasture. Thus 'all the burgesses of Oxford have pasture in common outside the wall which brings in [to the king] 6s. 8d.'(94*) 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, regard 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.(95*) 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.
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 then 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.(96*)
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.
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.(97*) 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.(98*) 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 ?0 10s. per annum: -- 'this belongs to his farm.'(99*) 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.
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.(100*) 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 ?0 (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 ?5, 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 port-reeves 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 cannot date them; but to antedate them would be easy.
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.(101*) 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.(102*) 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 eligible from the whole borough every time a geld is imposed. It is repartionable.
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.(103*) 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 ?00 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 eleemosynary corporations (which we will imagine to enjoy an immunity from taxation) still the whole ?00 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 ?00. A readjustment of taxation there must be. It may take one of many forms. There may be a revaluation of the district, and the ?00 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 ?00. Now there are 90 houses to pay ?00. 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 everyone and that one virgate in a manor was as good as another, one 'haw' in a borough as good as another.(104*) 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.(105*)
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 ?0 10s.' 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 ?0 10s.; 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,(106*) or we may suspect them of drinking the profits as soon as they are made.
Entries which describe the limits that are set to the duty of military 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.(107*) 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;(108*) 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.(109*) 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.
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.(110*) 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.(111*) 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 bad toll and forfeiture. So the burgesses swore; but a certain priest was ready to prove by ordeal that they swore falsely.(112*) 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 more petty nuisances.(113*) 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.(114*) 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.
Of the form that the borough court took we can say little. Perhaps at first it would be an assembly of all the free burgmen 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;(115*) in Lincoln there were twelve lawmen;(116*) in Stamford there had been twelve, though at the date of Domesday there were but nine;(117*) we read of four iudices in York,(118*) and of twelve iudices in Chester.(119*) 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 (120*) 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.(121*) 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.(122*) 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 allows us to see in various towns a large number of poor folk who cannot pay taxes or can only pay a poll tax. We must be chary of conceding to this crowd any share in the dooms
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