Buhr-bót and castle-guard.
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[758]. 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[759] 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 from of old owed this work or work of this kind to London-bury[760]
Borough and market.
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 market-peace than in the peace of a burg[761]. 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 Book 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[762]. Perhaps also we may see the borough-peace 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 any one 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[763].’ 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[764].
Establishment of markets.
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[765]. 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[766]. 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[767]. 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-books 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. Æthelred and Æthelflæd, 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[768]. Quite apart from the rent of houses, there is a revenue to be gained from the borough.
Moneyers in the burh.
Another rule has helped to define the borough, and this rule also has its root among the regalia. No one, says King Æthelstan, 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 Rochester three, two of the king, one of the bishop; 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[769]. Already, then, a burh is an entity known to the law: every burh is to have its moneyer.
Burh and port.
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[770]. 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[771]. 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[772]
Military and commercial elements in the borough.
We can not analyse the borough population; we can not 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 Book. 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[773]. 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.
The borough and agriculture.
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 Book and later documents is that our generalities should be few and that, were this possible, each borough should be separately studied.
Burgesses as cultivators.
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[774]. 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[775]’. 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[776]. Thus, though many of the burgesses may till the soil, the borough community is not an agrarian community. We can not 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.
Burgage tenure.
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[777]. 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 Book 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[778]. 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.’ Any one 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[779]
Eastern and western boroughs.
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[780]. 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[781]. 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.
Common property of the burgesses.
Traces are few in Domesday Book 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 land 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 75s. 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[782].’ 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. The community as landholders. When, for example, in the description of Stamford we read ‘Lagemanni et burgenses habent cclxxii. acras sine omni consuetudine[783],’ 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[784],’ 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[785]. 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 £18 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[786]. 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[787]. 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[788].’ 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[789]. But to see a municipal corporation in the burghers’ gild of Domesday Book would be very rash. We do not know that all the burghers belonged to it or that it had any governmental functions[790]
Rights of common.
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 onto the pasture. Thus ‘all the burgesses of Oxford have pasture in common outside the wall which brings in [to the king] 6s. 8d[791].’ 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, regards 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[792]. 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.
Absence of communalism in the boroughs.
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 than 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[793]
The borough community and its lord.
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.
The farm of the borough.
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[794]. 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[795]. 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 £30. 10s. per annum:—‘this belongs to his farm[796].’ 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.
The sheriff and the borough’s farm.
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[797]. 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 £50 (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 £55, 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 portreeves 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 can not date them; but to antedate them would be easy.
The community and the geld.
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[798]. 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[799]. 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 exigible from the whole borough every time a geld is imposed. It is repartitionable.
Partition of taxes.
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[800]. 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 £100 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 elemosynary corporations (which we will imagine to enjoy an immunity from taxation) still the whole £100 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 £100. A readjustment of taxation there must be. It may take one of many forms. There may be a revaluation of the district, and the £100 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 £100. Now there are 90 houses to pay £100. 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 every one and that one virgate in a manor was as good as another, one ‘haw’ in a borough as good as another[801]. 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[802]
No corporation implied by the farming of the borough.
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 £30. 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 £30. 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[803], or we may suspect them of drinking the profits as soon as they are made.
Borough and county organization.
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[804]. Here we seem to read of a definite transaction between the king of the one part and the borough of the other part, and one which implies a good deal of governmental organization in the borough. We would say nothing to lessen the just force of such a passage, which does not stand alone[805]; but still there need be but little more organization in the borough of Dover than there is in Berkshire. It was the custom of that county that, when the king summoned his host, only one soldier went from every five hides, while each hide provided him with four shillings for his equipment and wages[806]. We may guess that in a county such a scheme very rapidly ‘realized’ itself and took root in the soil, that in a borough there was less ‘realism,’ that there were more frequent readjustments of the burden; but the difference is a difference of degree.
Government of the boroughs.
Of anything that could be called the constitution of the boroughs, next to nothing can we learn. We may take it that in most cases the king’s farmer was the sheriff of the shire; in some few cases, as for example at Hereford, the reeve of the borough may have been directly accountable to the king[807]. We know no proof that in any case the reeve was an elected officer. Probably in each borough a court was held which was a court for the borough; probably it was, at least as a general rule, co-ordinate with a hundred court, and indeed at starting the borough seems to be regarded as a vill which is also a hundred[808]. The action of this court, however, like the action of other hundred courts, must as time went on have been hampered by the growth of seignorial justice. The sake and soke which a lord might have over his men and over his lands were certainly not excluded by the borough walls. He had sometimes been expressly told that he might enjoy these rights ‘within borough and without borough.’ It is difficult for us to realize the exact meaning that ‘sake and soke’ would bear when ascribed to a prelate or thegn who had but two or three houses within the town. Perhaps in such cases the town houses were for jurisdictional purposes deemed to be situate within some rural manor of their lord. But in a borough a lord might have a compact group of tenants quite large enough to form a petty court. In such a case the borough court would have the seignorial courts as rivals, and many a dispute would there be. At Lincoln one Tochi had a hall which undoubtedly was free ‘from all custom’; but he had also thirty houses over which the king had toll and forfeiture. So the burgesses swore; but a certain priest was ready to prove by ordeal that they swore falsely[809]. In these cases the lord’s territory would appear in later times as a little ‘liberty’ lying within the borough walls. The middle ages were far spent before such liberties had become mere petty nuisances[810]. In the old cathedral towns, such as Canterbury and Winchester, the bishop’s jurisdictional powers and immunities were serious affairs, for the bishop’s tenants were numerous[811]. Nevertheless, in the great and ancient boroughs, the boroughs which stand out as types and models, there was from a very remote time a court, a borough-moot or portman-moot, which was not seignorial, a court which was a unit in a national system of courts.
The borough court.
Of the form that the borough court took we can say little. Perhaps at first it would be an assembly of all the free burg-men or port-men. As its business increased in the large boroughs, as it began to sit once a week instead of thrice a year, a set of persons bound to serve as doomsmen may have been formed, a set of aldermen or lawmen whose offices might or might not be hereditary, might or might not ‘run with’ the possession of certain specific tenements. A ‘husting’ might be formed, that is, a house-thing as distinct from a ‘thing’ or court held in the open air. Law required that there should be standing witnesses in a borough, before whom bargains and sales should take place. Such a demand might hasten the formation of a small body of doomsmen. In Cambridge there were lawmen of thegnly rank[812]; in Lincoln there were twelve lawmen[813]; in Stamford there had been twelve, though at the date of Domesday Book there were but nine[814]; we read of four iudices in York[815], and of twelve iudices in Chester[816]. So late as 1275 the twelve lawmen of Stamford lived on in the persons of their heirs or successors. There are, said a jury, twelve men in Stamford who are called lawmen because their ancestors were in old time the judges of the laws (iudices legum) in the said town; they hold of the king in chief; by what service we do not know; but you can find out from Domesday Book[817]. Over the bodies of these, presumably Danish, lawmen there has been much disputation. We know that taken individually the lawmen of Lincoln were holders of heritable franchises, of sake and soke. We know that among the twelve iudices of Chester were men of the king, men of the earl, men of the bishop; they had to attend the ‘hundred,’ that is, we take it, the borough court. We know no more; but it seems likely that we have to deal with persons who collectively form a group of doomsmen, while individually each of them is a great man, of thegnly rank, with sake and soke over his men and his lands; his office passes to his heir[818]. On the whole, however, we must doubt whether the generality of English boroughs had arrived at even this somewhat rudimentary stage of organization. In 1200 the men of Ipswich, having received a charter from King John, decided that there should be in their borough twelve chief portmen, ‘as there were in the other free boroughs in England,’ who should have full power to govern and maintain the town and to render the judgments of its court[819]. Now Ipswich has a right to be placed in the class of ancient boroughs, of county towns, and yet to all appearance it had no definite class of chief men or doomsmen until the year 1200. Still we ought not to infer from this that the town moot had been in practice a democratic institution. There may be a great deal of oligarchy, and oligarchy of an oppressive kind, though the ruling class has never been defined by law. Domesday Book allows us to see in various towns a large number of poor folk who can not pay taxes or can only pay a poll tax. We must be chary of conceding to this crowd any share in the dooms of the court[820]
Definition of the borough.
But what concerns the government of the boroughs has for the time been sufficiently said by others. In our few last words we will return to our first theme, the difference between the borough and the mere township.
Mediatized boroughs.
We have seen that in Domesday Book a prominent position is conceded to certain towns. They are not brought under any rubric which would place them upon the king’s or any other person’s land. It must now be confessed that there are some other towns that are not thus treated and that none the less are called boroughs. If, however, we remember that burgesses often are in law where they are not in fact, the list that we shall make of these boroughs will not be long. Still such boroughs exist and a few words should be said about them. They seem to fall into two classes, for they are described as being on the king’s land or on the land of some noble or prelate. Of the latter class we will speak first. It does not contain many members and in some cases we can be certain that in the Confessor’s day the borough in question had no other lord than the king. Totness is a case in point. It now falls under the title Terra Judhel de Tottenais; but we are told that King Edward held it in demesne[821]. In Sussex we see that Steyning, Pevensey and Lewes are called burgi[822], Steyning is placed on the land of the Abbot of Fécamp, Pevensey on that of the Count of Mortain and Lewes on that of William of Warenne; but at Lewes there have been many haws appurtenant to the rural manors of the shire thegns[823]. In Kent the borough of Hythe seems to be completely under the archbishop[824]. He has burgesses at Romney over whom he has justiciary rights, but they serve the king[825]. The ‘little borough called Fordwich’ belonged to the Abbot of St Augustin. But of this we know the history. The Confessor gave him the royal two-thirds, while the bishop of Bayeux as the successor of Earl Godwin gave him the comital one-third[826]. Further north, Louth in Lincolnshire and Newark in Nottinghamshire seem to be accounted boroughs; they both belong to the bishop of Lincoln; but in the case of Newark (which was probably an old burh) we may doubt whether his title is very ancient[827]. We are told that at Tatteshall, the Pontefract of later days[828], there are sixty ‘minute burgesses,’ that is, we take it, burgesses in a small way. Ilbert de Lacy is now their lord; but here again we may suspect a recent act of mediatization[829]. Grantham in Lincolnshire is placed on the Terra Regis; it had belonged to Queen Edith; there were, however, seventy-seven tofts in it which belonged to ‘the sokemen of the thegns,’ that is, to the sokemen of the thegns of the shire[830]. Then in Suffolk we see that Ipswich is described at the end of the section which deals with the royal estates; a similar place is found for Norwich, Yarmouth and Thetford in the survey of Norfolk[831]. But for Dunwich we must look elsewhere. There were burgesses at Dunwich; but to all seeming the royal rights over the town had passed into the hands of Eadric of Laxfield[832]. The successor of the same Eadric has burgesses among his tenants at Eye[833]. There are burgesses at Clare, though Clare belongs altogether to the progenitor of the lordly race which will take its name from this little town[834]. But at least in this last case, the burgesses may be new-comers, or rather perhaps we may see that an old idea is giving way to a newer idea of a borough, and that if men engaged in trade or handicraft settle round a market-place and pay money-rents to a lord they will be called burgesses, though the town is no national fortress. At Berkhampstead 52 burgesses are collected in a burbium, but they may be as new as the two arpents of vineyard[835]. We must not say dogmatically that never in the days before the Conquest had a village become a borough while it had for its one and only landlord some person other than the king, some bishop, or some thegn. This may have happened at Taunton. In 1086 there were burgesses at Taunton and it enjoyed ‘burh-riht,’ and yet from a very remote time it had belonged to the bishops of Winchester. But the cases in which we may suppose that a village in private hands became a burgus and that this change took place before the Norman invasion seem to be extremely few. In these few the cause of the change may have been that the king by way of special favour imposed his burhgrið upon the town and thereby augmented the revenue of its lord[836].
Boroughs on the king’s land.
As to the boroughs that are regarded as standing on the king’s land, these also seem to be few and for the more part they are small. There are burgesses at Maldon[837]; but Maldon is not placed by the side of Colchester[838]; it is described among the royal estates. There are burgesses at Bristol[839]; but Bristol is not placed beside Gloucester and Winchcombe. Perhaps we should have heard more of it, if it had not, like Tamworth, stood on the border of two counties. In the south-west the king’s officials seem to be grappling with difficulties as best they may. In Dorset they place Dorchester, Bridport, Wareham and Shaftesbury above the rubric Terra Regis[840], and we can not find that they reckon any other place as a borough. In Devonshire we see Exeter above the line; Lidford and Barnstaple, however, are called boroughs though they are assigned to the king’s land, and (as already said) Totness is a borough, though it is mediatized and is described among the estates of its Breton lord[841]. No borough in Somerset is placed above the line, though we learn that the king has 107 burgesses in Ilchester who pay him 20 shillings[842], and that he and others have burgesses at Bath[843]. Perhaps the space that stands vacant before the list of the tenants in chief should have been filled with some words about these two towns. Axbridge, Langport and Milborne seem to be boroughs; Axbridge and Langport occur in that list of ancient fortresses which we have called The Burghal Hidage[844]. Wells was an episcopal, Somerton a royal manor; we have no reason for calling either of them a borough. In Hampshire another of the ancient fortresses, Twyneham (the modern Christ Church) is still called burgus, but seems to be finding its level among the royal manors[845]. In Wiltshire Malmesbury and Marlborough are placed above the line. We learn that the king receives £50 from the burgus of Wilton[846], and we also learn incidentally that various lords have burgesses in that town; for example, the bishop of Salisbury has burgesses in Wilton who belong to his manor of Salisbury[847]. Old Salisbury (‘old Sarum’ as we foolishly call it) seems to be a mere manor belonging to the bishop; but the king receives its third penny. He receives also the third penny of Cricklade, which we have named before now as one of the old Wessex strongholds, and several of the county magnates had burgesses there. On the other hand Calne, Bedwind and Warminster are reckoned to be manors on the king’s land. Burgesses belong to them; but whether those burgesses are really resident in them may not be quite certain[848]. Devizes we can not find. That puzzles should occur in this quarter is what our general theory might lead us to expect. In the old home of the West-Saxon kings there may well have been towns which had long ago secured the name and the peace of royal burgs, though they manifested none of that tenurial heterogeneity which is the common mark of a borough. A town, a village, which not only belonged to the king but contained a palace or house in which he often dwelt, would enjoy his special peace, and might maintain its burghal dignity long after there was little, if any, real difference between it and other manors or villages of which the king was the immediate landlord. Already in 1086 there may have been ‘rotten boroughs,’ boroughs that were rotten before they were ripe[849]
Attributes of the borough.
A borough belongs to the genus villa (tún). In age after age our task is to discover its differentia, and the task is hard because, as age succeeds age, changes in law and changes in fact are making the old distinctions obsolete while others are becoming important. Let us observe, then, that already when Domesday Book was in the making those ancient attributes of which we have been speaking were disappearing or were fated soon to disappear. We have thought of the typical borough as a fortified town maintained by a district for military purposes. But already the shire thegns have been letting their haws at a rent and probably have been letting them to craftsmen and traders. Also the time has come for knight-service and castles and castle-guard. We have thought of the typical borough as the sphere of a special peace. But the day is at hand when a revolution in the criminal law will destroy the old system of wer and wíte and bót, and the king’s peace will reign always and everywhere[850]. We have thought of the typical borough as a town which has a court. But the day is at hand when almost every village will have its court, its manorial court. New contrasts, however, are emerging as the old contrasts fade away. Against a background of villeinage and week-work, the borough begins to stand out as the scene of burgage tenure. The service by which the burgess holds his tenement is a money rent. This may lead to a large increase in the number of boroughs. If a lord enfranchises a manor, abolishes villein customs, takes money rents, allows his tenants to farm the court and perhaps also to farm a market that he has acquired from the king, he will be said to create a liber burgus[851]. Merchant gilds, elected bailiffs, elected mayors and common seals will appear and will complicate the question. There will follow a time of uncertainty and confusion when the sheriffs will decide as suits them best which of the smaller towns are boroughs and which are not.
Classification of boroughs.
If the theory that we have been suggesting is true, all or very nearly all our ancient boroughs (and we will draw the line of ancientry at the Conquest) are in their inception royal boroughs. The group of burgesses when taken as a whole had no superior other than the king. His was the peace that prevailed in the streets; the profits of the court and of the market were his, though they were farmed by a reeve. Rarely, however, was he the landlord of all the burgesses. In general not a few of them lived in houses that belonged to the thegns of the shire. We must be careful therefore before we speak of these towns as ‘boroughs on the royal demesne.’ For the more part, the compilers of Domesday Book have refused to place them on the Terra Regis. In course of time some of them will be currently spoken of as boroughs on or of the royal demesne. The rights of those who represent the thegns of the shire will have become mere rights to rent, and, their origin being forgotten, they will even be treated as mere rent-charges[852]. The great majority of the burgesses will in many instances be the king’s immediate tenants and he will be the only lord of that incorporeal thing, ‘the borough,’ the only man who can grant it a charter or let it to farm. But we must distinguish between these towns and those which at the Conquest were manors on the king’s land. These latter, if he enfranchises them, will be boroughs on the royal demesne in an exacter sense. So, again, we must distinguish between those ancient boroughs which the king has mediatized and those manors of mesne lords which are raised to the rank of boroughs. We have seen that from the ancient borough the king received a revenue of tolls and fines. Therefore he had something to give away. He could mediatize the borough. Domesday Book shows us that this had already been done in a few instances[853]. At a later time some even of the county towns passed out of the king’s hands into the hands of earls. This happened at Leicester and at Warwick. The earl succeeded to the king’s rights, and the burgesses had to go to the earl for their liberties and their charters. But such cases are very distinct from those in which a mesne lord grants an enfranchising charter to the men of a place which has hitherto been one of his manors, and by speaking of boroughs which are ‘on the land of mesne lords’ we must not confuse two classes of towns which have long had different histories. In the ancient boroughs there is from the first an element that we must call both artificial and national. The borough does not grow up spontaneously; it is made; it is ‘wrought’; it is ‘timbered.’ It has a national purpose; it is maintained ‘at the cost of the nation’ by the duty that the shire owes to it. This trait may soon have disappeared, may soon have been forgotten, but a great work had been done. In these nationally supported and heterogeneously peopled towns a new kind of community might wax and thrive.