VIII
LIBER BURGUS ɪ
The formulæ used by the royal chancery and by feudal lords in
early town charters in this country have never been throughly
studied, and there is good reason to believe that much needed
light upon certain obscure problems of the borough has
thereby been missed. A case in point seems to be afforded
by the well-known clause which granted the status of “ free
borough ” {liber burgus, liberum burgum). Its sudden appear-
ance in charters at the very end of the twelfth century, though
the term is known to have been already well understood and
applied to many boroughs which never received the formal
grant,2 has not been satisfactorily explained. The difficulty
would be less pressing had the grant been made to new boroughs
only, but this was not the case.
The absence of any early definition of the term, save in
one obscure seignorial charter, and its application to every
degree of chartered town from manorial boroughs like
Altrincham and Salford to the greatest cities of the realm,
have led to some bad guessing on the one hand, and on the
other to difference of opinion and misunderstandings among
those who have seriously searched the evidence for a definition.
Lawyers, with their too common indifference to historical
facts, used to explain a grant of free borough as conferring
“ a freedom to buy and sell, without disturbance, exempt
from toll, etc.” 3 It is more surprising to find so well equipped
ɪ Reprinted from Essays in Medieval History presented to Thomas
Frederick Tout, ed. A. G. Little and F. M. Powicke (Manchester, 1925),
PP- 79-97-
2 See the frequent references to Iiberi burgi nostri in the Ipswich charter
of 1200 (Gross, Gild Merchant, ii. 116). At Michaelmas 1199 the burgesses
of Canterbury apparently offered 250 marks to have their town at farm
and with such liberties as " Iiberi et dominici burgi domini regis habent qui
Iibertates habent ” (Pipe Roll ɪ John (P.R.S. no. 10), 160. Cf. Book of
Fees, i. 87 (a. 1212)). For a very questionable earlier reference, see below,
P- 213.
3 Jacob, Law Dictionary, ed. 1782, s. " Borough.”
194
LIBER BURGUS
195
a scholar as Mr. E. A. Lewis identifying as the essential attri-
butes of the liber burgus “ the non-intromittat clause exempting
them from the sheriff’s control as well perhaps as the grant of
the gilda mercatoria.” 1
Even Maitland’s well-known interpretation has led to some
misapprehension, because it has not been kept in mind that
he was dealing only with new boroughs, to whose charters
the free borough clause is mostly confined, and in particular
with that relatively simple type of new borough which was
created by a mesne lord. What happened, Maitland asked
himself, when a manorial vill was converted into a borough
with a grant of liber burgus? His answer was that a free
borough of that type was one whose lord had abolished villein
services, heriot, and merchet, and instead thereof took money
rents.2 In other words, burgage tenure of land was the essen-
tial feature of the Hber burgus of this kind. Ballard agreed
that it was essential, but considered that a court for the borough
was also a fundamental requisite. These two features, and
these only, were, he considered, common to all boroughs, and
he could find no difference between a borough and a free
borough,3 the adjective merely emphasizing the freedom of
the borough as contrasted with the manorial world outside.
His definition of Hber burgus is therefore a complete one,
applicable to the older and larger boroughs as well as to the
new creations of the feudal period to which Maitland’s obiter
dictum was confined. But Maitland himself has incidentally
made it clear that he regarded burgage tenure as at least the
most fundamental, though not an original, feature of the older
and more complex boroughs, and (along with French bourgs)
providing precedents for this tenure in the newer boroughs.4
On Ballard’s view, a grant that a place should be a free
borough, with or without the addition, “ with the liberties
and free customs pertaining to a free borough,” conveyed
no more in any case than burgage tenure and a special court
with the liberties and customary law that had become appur-
tenant to them in existing boroughs. It did not include any
of those further rights and exemptions which were being
1 Meditzval Boroughs of Snowdonia, p. 39.
2 Hist, of English Law, ɪ. 640 (2nd ed.). Heriot was by no means
always forgone (British Borough Charters, ɪ. 76, ɪi. 95).
2 The English Borough in the Twelfth Century, p. 76. A grant of free
borough by the Crown would imply a hundredal court, a grant by a mesne
lord, a manorial one.
* Op. cit. ɪ. 639 ; Domesday Book and Beyond, p. 217.