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VIII.

THE ORIGIN OF THE TOWNS IN ENGLAND.

THERE exists no satisfactory general account of the origin of the towns in England.1 The pages devoted to

this question by Stubbs, in three of the Novelty of the chapters of Vol. I.,2 have long been the question safest guide to consult. But during the last fifteen years this problem has been the subject of studies based on thorough research which have advanced its solution, and even those with which Stubbs was able to make himself acquainted and which he has quoted sometimes in the notes to his later editions might have been turned to greater profit by him. The researches of Mr. Gross, the ingenious and disputable theories of Mr. Maitland, the discoveries of Mr. Round and Miss Mary Bateson, notably, deserve to be known by our readers. With their help we must now draw out a summary sketch, in which we shall make it our chief endeavour to give the history of the English towns its proper place in the framework of the general history of the towns of the west.

France in the Middle Ages was acquainted with infinitely varied forms of free or privileged towns, and very diverse too are the names which The "borough" were used to designate them from North to South. In England the degrees of urban enfranchise

1. For the bibliography, see Ch. Gross, Bibliography of British Municipal History, 1897. It is an excellent repertory. But since 1897, some very important works have appeared, notably those of Miss Mary Bateson. Some years ago, English municipal history was backward compared with that of France; but the activity now displayed in that respect by scholars on the other side of the Channel contrasts with the present scarcity of good monographs on the French towns.

2. Const. Hist., i, pp. 99-102, 438-462, and 667–676.

ment are less numerous, the upper degrees are wanting and, in addition, a somewhat peculiar term is applied to the privileged town in the later centuries of the Middle Ages: in opposition to the villa, to the township, it is called burgus, borough, and the municipal charters often contain in their first line the characteristic formula: "Quod sit liber burgus.”1 Hence in the works of English scholars who concern themselves with the origin of municipal liberties, the word borough is constantly made use of. It seems to us, necessary, however, to get rid of this word, which uselessly complicates and confuses the problem to be solved, and it is well to give our reasons at the outset.

The difficulty of defining the borough

The first idea that the word borough summons up is that of the bonne ville as it used to be called in France; that is to say, the town which sent representatives to the assemblies of the three estates. In fact, in the fourteenth and fifteenth centuries, the borough is the town which is represented in the House of Commons. But if we are not content to stop short at this external characteristic, and if we enquire in virtue of what principles a town is selected to be represented in Parliament, parliamentary we are obliged to recognise that such principles do not exist, that the list of boroughs is arbitrarily drawn up by the sheriffs, and that it even varies to a certain extent. In the period before the application of the parliamentary system, is the boundary line which separates the boroughs from the simple market towns and villages any clearer ?

The

criterion

Already, in his valuable book on the gild merchant, which is so full of ideas, facts and documents, Mr. Gross had observed that the term liber burgus is a very vague one, applying to a group of franchises the number of which gradually grew in the course of centuries, and

1. See, for example, in Stubbs' Select Charters, 8th edition, pp. 311, 313, etc. Upon this expression see below, page 69, note 2.

none of which, if we examine carefully the relative position of the burgi and the villae, was rigorously reserved to the burgi, or indispensable to constitute a burgus.1 First among them was judicial independence: the burgesses of the liber burgus 2 had not to appear before the courts of the shire and

The judicial

criterion

the hundred.3

In a quite recent work Miss Mary Bateson expresses the opinion that we have there in fact the characteristic of the borough: it is by its court of justice that the borough, detached from the hundred and forming as it were a hundred by itself, is distinguished from the Norman period onwards, from the township and the market town. It may have been originally a township, it may continue to be a manor in the eyes of its lord; it is none the less, from a legal point of view, an entirely special institution, which has its place outside the shire and the hundred. It is not a slow evolution, it is a formal act, which gives it this place apart, and which makes of the word borough a technical term corresponding to a definite legal conception.* Undoubtedly there is much

1. Gross, Gild Merchant, 1890, i, pp. 5 sqq. Cf. A. Ballard, English boroughs in the reign of John, in English Histor. Review, xiv, 1899, p. 104.

2. According to Mr. Tait (Mediaeval Manchester, p. 62; Cf. Pollock and Maitland, History of English Law, i, 639) the expression liber burgus would denote simply the substitution of the tenure in burgagium and its customs for the villein services and merchetum of the rural manor; and where it does not appear in the charter, it is because burgage-tenure existed before the granting of the charter. We do not think that this interpretation is sufficiently broad. Liber burgus often has a much more general sense, notably in the following document of the year 1200 relating to the town of Ipswich (published in Gross, Gild Merchant, ii, p. 117: "Item eodem die ordinatum est per commune concilium dicte villate quod de cetero sint in burgo predicto duodecim capitales portmenni jurati, sicut in aliis liberis burgis Anglie sunt, et quod habeant plenam potestatem pro se et tota villata ad gubernandum et manutenendum predictum burgum et omnes libertates ejusdem burgi,

etc."

3. Upon the great importance of the jurisdiction of the English towns in the early period, a jurisdiction which extended to causae majores," see Mary Bateson, Borough Customs, ii, 1906, p. xx.

4. Mary Bateson, Mediaeval England, 1903, pp. 124, 125; cf. the same author's, Borough Customs, i, 1904, pp. xii sqq.; controversy with Mr. Ballard in English Historical Review, xx, 1905, pp. 146 sqq.

“incorporation”

2

truth in this theory. But we cannot decidedly accept it in its entirety. The court of justice did not suffice, any more than the tenure in burgagium or the firma burgi, to constitute a borough, at the period at which men claimed to distinguish clearly 'between the boroughs and the market towns.1 And, a fortiori, this must have been the case during the Norman period. The criterion of We might be tempted to admit, with Mr. Maitland, that it is the character of a corporation, which is the essential part in the conception of a borough. But "incorporation incorporation" is a legal notion, for which the facts no doubt prepared the way, but which was not stated in precise form until towards the end of the thirteenth century. For the twelfth and preceding centuries we must give up the attempt to find an exact definition of burgus. During the Anglo-Saxon period, and even in the eleventh century, the word burh had an extremely general signification. It does not even exclusively denote a town, but is also applied to a fortified house, a manor, a farm surrounded by walls.3

It should be observed that the important towns are also designated, for example in Domesday Book, by the name of civitates; like almost all the words in the language of the Middle Ages, civitas and burgus have no precise and strict application.* The difficulty would be the same, or nearly so, if one attempted to define the French commune not in an a priori fashion but after comparison of all the passages in which the word is

1. See the case of Manchester: Tait, op. cit. pp. 52 sqq. Cf. Pollock and Maitland, English Law, i, 640.

2. Corpus corporatum et politicum, communitas, etc. See Gross, Gild Merchant, i, pp. 93 sqq.; Pollock and Maitland, i, pp. 669 sqq.; and above all Maitland, Towship and Borough, 1898.

3. W. H. Stevenson, in English Historical Review, xii, 1897, p. 491. 4. In France, civitas denotes a bishop's see; and this is often the case in England, but not uniformly. Cf. Maitland, Domesday Book and Beyond, 1897, p. 183, note 1; Township and Borough, p. 91; Round, in Victoria History of the counties, Essex. i, 1903, pp. 414, 415. Upon the definition of the modern city, see G. W. Wilton, The county of the city in the Juridical Review (Edinburgh), April, 1906, pp. 65 sqq.

Necessity of laying aside

this term

employed. In the same way that there is an advantage in making use of this convenient word to denote our most independent towns, it may be of service to use the word borough, when we are studying the English towns of the end of the Middle Ages. But, for the period of origins, which is the only one we have before us at present, it is better not to embarrass ourselves with this expression which by its misleading technical appearance has perhaps greatly contributed to plunge certain English scholars into blind alleys. It will be enough to ask ourselves how the towns were formed which have a court of justice and a market, which have a trading burgess population, which have sooner or later obtained a royal or baronial charter, and which, both by a variable body of privileges and by their economic development, have distinguished themselves from the simple agricultural groups; whether they were destined to be called boroughs or market towns matters little.

There is no imperious necessity for formulating the problem any differently from the way it has been formulated for the towns of the Continent, and it is for this reason that we have not entitled this essay: The Origin of the Boroughs. The question which directly interests general history is to know how the English towns were formed. It is doubtful whether this problem can ever be solved with absolute certainty,' but that is no reason for not approaching it at all.2

1. Cf. the reflections of Mrs. Green, Town Life in the fifteenth century, 1894, Preface, p. xi. Mrs. Green appears to think that it is better to lay aside for the present the study of municipal origins.

2. We make no pretence of treating here of the problem of the origin of municipal liberties, or of explaining what those liberties were. Stubbs has dealt very fully with the question, and we should risk repeating him. A systematic enumeration of the privileges of the "boroughs" will be found in Pollock and Maitland, English Law, i, pp. 643 sqq., and the excellent book of Ch. Gross, The Gild Merchant, may be read with the greatest profit; the second volume of this work is composed of original documents of the highest interest for English municipal history as a whole.

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