NOTE A.
Mr. Maitland (Law Quarterly, January, 1893) gives a most interesting account of the customs of holding and dividing lands in various boroughs. On the whole he doubts whether the holding of land by burgesses subject to communal regulations is generally a very ancient arrangement. There seems, however, to be evidence for the antiquity of the holding of common property by the community; and it may be possible further to discover the existence of a permanent distinction between the property thus held by the community for the common use, and that held by the corporation for certain special purposes, such as payment of ferm, taxes, public servants, and the like—a distinction which rests on the different function which I have suggested in the case of those bodies.
The community of Ipswich apparently possessed land before 1200. (Gross, ii. 122, cap. xviii. 115.) For its common lands see also Hist. MSS. Com. ix. 234-7, 246. Lands were held by Wycombe (Ibid. v. 556-7). In Morpeth the “burgesses and community” make grants of land in the thirteenth century. (Ibid. vi. 527.) Andover in 1314 owned land managed by the community. (Gross, ii. 307, 326, 330.) Oxford (Boase, 47) and Chester might also be cited. Also Hythe (Hist. MSS. Com. iv. i. 432, 433), and Worcester (English Guilds, 386) and Preston (Preston Guild Records, xxiv.). The Nottingham Records mention the “land of the community” (ii. 269. See also 304-6). A grant of six acres of mosses was given to Liverpool in 1309 (Picton’s Municipal Records, i. 8, 12. For the results of holding this property see 11). Birmingham held land and rights of common (Survey of the Borough and Manor, xiv. 74, 102).
Romney held the Salt Marsh, the Gorse, the Horseho, and the Harpe pastures, the old bed of the Rother, the forelands and saltpits and warrens and gardens and marshlands, “the land of the commonalty” (Hist. MSS. Com. v. 536, 537, 539, 540-3).
Lydd (Ibid. v. 525, 531-2) seems to have held marshland common on the Ripe for at least four hundred sheep, and the boroughs of Dengemarsh and Orwellstow. Its ownership of the shore as against the claims of the crown was proved in the time of Elizabeth by evidence from “the face and vieu of the antienty of the town and church, and buryall of men cross-legged and such like monuments.” A seal given to the community by the archbishop at the beginning of their incorporation “long before the Conquest,” as rumour said, was used (as distinguished from the bailiff’s seal) as late as Elizabeth’s time for the selling or letting of lands by the town. (Ibid. v. 530-2.) The cases of Lydd and Morpeth illustrate the way in which the lord of a borough granted it the possession of land along with grants of local government and independence.
Colchester had 500 acres of Lammas lands besides Mile End Heath, etc. (Cutts’ Colchester, 142-4); and meadow still divided by boundary stones into strips. (Ibid. 67-8. See also for 1322 p. 142.)
Coventry owned common lands in the fourteenth century, of which there is no suggestion that they were newly acquired, and which belonged to the community and not to the corporation, and were distinct from lands or property acquired under the statute of mortmain and used for the payment of town officers, etc.
There were boroughs whose disputes about their property dated from the very beginning of their corporate existence. Southampton was already quarrelling about its common in the thirteenth century; and the Norwich citizens were engaged in a lawsuit in 1205 as to their rights of pasture on land for which rent was due to the Prior, but which the Prior could not legally either enclose or cultivate without a grant from the city. (Norwich Town Close Evidences, 4, 5. For the common lands see ibid. pp. 52-64.)
In some instances the burghers apparently did not profess to own the soil but only to hold an exclusive right to its use; and the furious excitement of the Norwich citizens (see p. 392) about a tribute of 4s. yearly to the Prior for a certain meadow proves how very thin the boundary line between possession and use might become.