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 of the court.(123*)
But what concerns the government of the boroughs has for the time been sufficiently said by others. In our few last words we will return to our first theme, the difference between the borough and the mere township.
We have seen that in Domesday a prominent position is conceded to certain towns. They are not brought under any rubric which would place them upon the king's or any other person's land. It must now be confessed that there are some other towns that are not thus treated and that none the less are called boroughs. If, however, we remember that burgesses often are in law where they are not in fact, the list that we shall make of these boroughs will not be long. Still such boroughs exist and a few words should be said about them. They seem to fall into two classes, for they are described as being on the king's land or on the land of some noble or prelate. Of the latter class we will speak first. It does not contain many members and in some cases we can be certain that in the Confessor's day the borough in question had no other lord than the king. Totness is a case in point. It now falls under the title Terra Judhel de Tottenais; but we are told that King Edward held it in demesne.(124*) In Sussex we see that Steyning, Pevensey and Lewes are called burgi,(125*) Steyning is placed on the land of the Abbot of Fecamp, Pevensey on that of the Count of Mortain and Lewes on that of William of Warenne; but at Lewes there have been many haws appurtenant to the rural manors of the shire thegns.(126*) In Kent the borough of Hythe seems to be completely under the archbishop.(127*) He has burgesses at Romney over whom he has justiciary rights, but they serve the king.(128*) The 'little borough called Fordwich' belonged to the Abbot of St Augustin. But of this we know the history. The Confessor gave him the royal two-thirds, while the bishop of Bayeux as the successor of Earl Godwin gave him the comital one-third.(129*) Further north, Louth in Lincolnshire and Newark in Nottinghamshire seem to be accounted boroughs; they both belong to the bishop of Lincoln; but in the case of Newark (which was probably an old burh) we may doubt whether his title is very ancient.(130*) We are told that at Tattershall, the Pontefract of later days,(131*) there are sixty 'minute burgesses,' that is, we take it, burgesses in a small way. Ilbert de Lacy is now their lord; but here again we may suspect a recent act of mediatization.(132*) Grantham in Lincolnshire is placed on the Terra Regis; it had belonged to Queen Edith; there were, however, seventy-seven tofts in it which belonged to 'the sokemen of the thegns,' that is, to the sokemen of the thegns of the shire.(133*) Then in Suffolk we see that Ipswich is described at the end of the section which deals with the royal estates; a similar place is found for Norwich, Yarmouth and Thetford in the survey of Norfolk.(134*) But for Dunwich we must look elsewhere. There were burgesses at Dunwich; but to all seeming the royal rights over the town had passed into the hands of Eadric of Laxfield.(135*) The successor of the same Eadric has burgesses among his tenants at Eye.(136*) There are burgesses at Clare, though Clare belongs altogether to the progenitor of the lordly race which will take its name from this little town.(137*) But at least in this last case, the burgesses may be new-comers, or rather perhaps we may see that an old idea is giving way to a newer idea of a borough, and that if men engaged in trade or handicraft settle round a market-place and pay money-rents to a lord they will be called burgesses, though the town is no national fortress. At Berkhampstead 52 burgesses are collected in a burbium, but they may be as new as the two arpents of vineyard.(138*) We must not say dogmatically that never in the days before the Conquest had a village become a borough while it had for its one and only landlord some person other than the king, some bishop, or some thegn. This may have happened at Taunton. In 1086, there were burgesses at Taunton and it enjoyed 'burh-riht,' and yet from a very remote time it had belonged to the bishops of Winchester. But the cases in which we may suppose that a village in private hands became a burgus and that this change took place before the Norman invasion seem to be extremely few. In these few the cause of the change may have been that the king by way of special favour imposed his burhgrid upon the town and thereby augmented the revenue of its lord.(139*)
As to the boroughs that are regarded as standing on the king's land, these also seem to be few and for the more part they are small. There are burgesses at Maldon;(140*) but Maldon is not placed by the side of Colchester;(141*) it is described among, but Bristol the royal estates. There are burgesses at Bristol;(142*) is not placed beside Gloucester and Winchcombe. Perhaps we should have heard more of it, if it had not, like Tamworth, stood on the border of two counties. In the south-west the king's officials seem to be grappling with difficulties as best they may. In Dorset they place Dorchester, Bridport, Wareham and Shaftesbury above the rubric Terra Regis,(143*) and we cannot find that they reckon any other place as a borough. In Devonshire we see Exeter above the line; Lidford and Barnstaple, however, are called boroughs though they are assigned to the king's land, and (as already said) Totness is a borough, though it is mediatized and is described among the estates of its Breton lord.(144*) No borough in Somerset is placed above the line, though we learn that the king has 107 burgesses in Ilchester who pay him 20 shillings,(145*) and that he and others have burgesses at Bath.(146*) Perhaps the space that stands vacant before the list of the tenants in chief should have been filled with some words about these two towns. Axbridge, Langport and Milborne seem to be boroughs; Axbridge and Langport occur in that list of ancient fortresses which we have called The Burghal Hidage.(147*) Wells was an episcopal, Somerton a royal manor; we have no reason for calling either of them a borough. In Hampshire another of the ancient fortresses, Twyneham (the modern Christ Church) is still called burgus, but seems to be finding its level among the royal manors.(148*) In Wiltshire Malmesbury and Marlborough are placed above the line. We learn that the king receives ?0 from the burgus of Wilton,(149*) and we also learn incidentally that various lords have burgesses in that town; for example, the bishop of Salisbury has burgesses in Wilton who belong to his manor of Salisbury.(150*) Old Salisbury ('old Sarum' as we foolishly call it) seems to be a mere manor belonging to the bishop; but the king receives its third penny. He receives also the third penny of Cricklade, which we have named before now as one of the old Wessex strongholds, and several of the county magnates had burgesses there. On the other hand Calne, Bedwind and Warminster are reckoned to be manors on the king's land. Burgesses belong to them; but whether those burgesses are really resident in them may not be quite certain.(151*) Devizes we cannot find. That puzzles should occur in this quarter is what our general theory might lead us to expect. In the old home of the West-Saxon kings there may well have been towns which had long ago secured the name and the peace of royal burgs, though they manifested none of that tenurial heterogeneity which is the common mark of a borough. A town, a village, which not only belonged to the king but contained a palace or house in which he often dwelt, would enjoy his special peace, and might maintain its burghal dignity long after there was little, if any, real difference between it and other manors or villages of which the king was the immediate landlord. Already in 1086 there may have been 'rotten boroughs,' boroughs that were rotten before they were ripe.(152*)
A borough belongs to the genus villa (tun). In age after age our task is to discover its differentia, and the task is hard because, as age succeeds age, changes in law and changes in fact are making the old distinctions obsolete while others are becoming important. Let us observe, then, that already when Domesday was in the making those ancient attributes of which we have been speaking were disappearing or were fated soon to disappear. We have thought of the typical borough as a fortified town maintained by a district for military purposes. But already the shire thegns have been letting their haws at a rent and probably have been letting them to craftsmen and traders. Also the time has come for knight-service and castles and castle-guard. We have thought of the typical borough as the sphere of a special peace. But the day is at hand when a revolution in the criminal law will destroy the old system of wer and wite and bot, and the king's peace will reign always and everywhere.(153*) We have thought of the typical borough as a town which has a court. But the day is at hand when almost every village will have its court, its manorial court. New contrasts, however, are emerging as the old contrasts fade away. Against a background of villeinage and week-work, the borough begins to stand out as the scene or burgage tenure. The service by which the burgess holds his tenement is a money rent. This may lead to a large increase in the number of boroughs. If a lord enfranchises a manor, abolishes villein customs, takes money rents, allows his tenants to farm the court and perhaps also to farm a market that he has acquired from the king, he will be said to create a liber burgus.(154*) Merchant gilds, elected bailiffs, elected mayors and common seals will appear and will complicate the question. There will follow a time of uncertainty and confusion when the sheriffs will decide as suits them best which of the smaller towns are boroughs and which are not.
If the theory that we have been suggesting is true, all or very nearly all our ancient boroughs (and we will draw the line of ancientry at the Conquest) are in their inception royal boroughs. The group of burgesses when taken as a whole had no superior other than the king. His was the peace that prevailed in the streets; the profits of the court and of the market were his, though they were farmed by a reeve. Rarely, however, was he the landlord of all the burgesses. In general not a few of them lived in houses that belonged to the thegns of the shire. We must be careful therefore before we speak of these towns as 'boroughs on the royal demesne.' For the more part, the compilers of Domesday have refused to place them on the Terra Regis. In course of time some of them will be currently spoken of as boroughs on or of the royal demesne. The rights of those who represent the thegns of the shire will have become mere rights to rent, and, their origin being forgotten, they will even be treated as mere rent-charges.(155*) The great majority of the burgesses will in many instances be the king's immediate tenants and he will be the only lord of that incorporeal thing, 'the borough,' the only man who can grant it a charter or let it to farm. But we must distinguish between these towns and those which at the Conquest were manors on the king's land. These latter, if he enfranchises them, will be boroughs on the royal demesne in an exacter sense. So, again, we must distinguish between those ancient boroughs which the king has mediatized and those manors of mesne lords which are raised to the rank of boroughs. We have seen that from the ancient borough the king received a revenue of tolls and fines. Therefore he had something to give away. He could mediatize the borough. Domesday shows us that this had already been done in a few instances.(156*) At a later time some even of the county towns passed out of the king's hands into the hands of earls. This happened at Leicester and at Warwick. The earl succeeded to the king's rights, and the burgesses had to go to the earl for their liberties and their charters. But such cases are very distinct from those in which a mesne lord grants an enfranchising charter to the men of a place which has hitherto been one of his manors, and by speaking of boroughs which are 'on the land of mesne lords' we must not confuse two classes of towns which have long had different histories. In the ancient boroughs there is from the first an element that we must call both artificial and national. The borough does not grow up spontaneously; it is made; it is 'wrought'; it is 'timbered.' It has a national purpose; it is maintained 'at the cost of the nation' by the duty that the shire owes to it. This trait may soon have disappeared, may soon have been forgotten, but a great work had been done. In these nationally supported and heterogeneously peopled towns a new kind of community might wax and thrive.
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