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.
ESSAY II.
ENGLAND BEFORE THE CONQUEST.
Object of this Essay.
No one can spend patient hours in examining the complex web disclosed by Domesday Book without making some theories, at least some guesses, about the political, social and economic threads of which that web has been woven. But if we here venture to fashion and state a few such theories or such guesses, it is with no hope that they will be a complete explanation of old English history. For, in the first place, we are to speak mainly of the things of the law, of legal ideas and legal forms, and once for all we may protest that we have no wish to overestimate their importance. The elaborate and long continued development to which we point when we speak of ‘feudalism,’ can not be fully explained by any discussion of legal ideas and legal forms. On the other hand, it can not be fully explained without such discussion, for almost all that we can know about it is to be found in legal documents. In the second place, we are to make a selection. Certain phases of our oldest legal history, notably those which are called ‘constitutional,’ have been so fully treated by classical books, that at the present moment there is no good reason why we should traverse the ground that has been covered. Therefore if, for example, we say little or nothing of the ancient Germanic comitatus or of the relationship between lord and man in so far as it is a merely personal relationship, this will not be because we have overlooked these matters; it will be because there is nothing to be gained by our repeating what has been well and sufficiently said by Dr Konrad Maurer, Dr Reinhold Schmid, Dr Stubbs and others. And if, again, we lay great stress on what may be called the ecclesiastical phase of the feudalizing process, this will not be because we think it the only phase, it will be because we think that too little attention has been paid by English writers to the influence which the churches exercised upon temporal affairs by means of their endowments. The day for an artistically proportioned picture of the growth of feudalism has not yet come; the day for a quantitative analysis of the elements of feudalism may never come; for the present we must be content if we can bring out a few new truths or set a few old truths in a new light. The vast and intricate subject may be approached from many different quarters. If we can make some little progress along our chosen path, we shall be all the more willing to admit that progress along other paths is possible.
Fundamental controversies as to Anglo-Saxon history.