2θ6
LIBER BURGUS
“ market town.” No reasons are given, but it is evident that
by that date mere burgage tenure and portmoot or borough
court was not considered a sufficient qualification for borough
rank.
The earlier and more comprehensive application of the
term “ (free) borough ” is well illustrated by another judicial
decision. In 1270 Penryn in Cornwall was decided to be a
free borough, though its charter from a bishop of Exeter
(1236) did not use the term, and gave it only free tenure and
a low judicial amercement.1 At Higham Ferrers the con-
version of some eighty villein tenements into burgages was
sufiicient to constitute a free borough (1251).2 This limited
conception of liber burgus is seen also in the only really con-
temporary definition of the term before the fourteenth century
with which we have met. In granting that status to Welsh-
pool, between 1241 and 1286, Gruffydd ab Gwenwynwyn
explains : “ so that the aforesaid burgesses and their heirs
shall be free of all customs and services pertaining to me and
my heirs in all my lands, wherever they may be.” 3 This
case is the more notable that, Welshpool being in the March
of Wales, Gruffydd was able to give his new borough such
unusual privileges for a mesne borough as the right to im-
prison and try homicides as well as thieves, and the old year
and day clause for villeins settling in the borough, in addition
to a gild merchant and the law of Breteuil as enjoyed by
Hereford. Here it is the fundamental liberty of burgesses as
contrasted with the manorial population without that is
referred to the grant of liber burgus and not the whole body of
liberties and customs granted, as in the royal charters we have
examined.
It was natural that in Seignorial boroughs of a simple type
emancipation from manorialism, more or less complete, and
the new burgage tenure should overshadow everything else,
while in the great boroughs of immemorial origin and high
franchises, in important mesne boroughs like Lynn, whose
lords obtained similar franchises for them from the Crown, and
in royal castle boroughs in Wales which were English garrisons
in a newly conquered country, burgage tenure, though vital,
was subordinated to the extensive liberties enjoyed by them.
The ordinary feudal lord who founded a borough without a
special royal charter could indeed add little to the initial boon
ɪ B.B.C. iɪ. 46, 216. , Ibid. pp. 47, 142. Cf. p. 354, n. 3.
’ Ibid. p. 6. Cf. the Hberi custumarii of Chester, c. ɪ 178 (above, p. 134, и. 3).
Seignorial boroughs
207
of free borough tenure. Unless in his manor which in whole
or part became a borough he already possessed by grant or
prescription, as was perhaps often the case, such franchises
as market and fairs, the right of trying thieves and the enforce-
ment of the assize of bread and ale, these had to be sought
from the king or palatine lord.1 It must be kept in mind,
however, that burgage tenure in itself involved a very consider-
able body of legal custom, much of it peculiar to the boroughs,
the scope and importance of which has been fully revealed
in Miss Bateson’s volumes on Borough Customs.2 Thus, when
Bishop Poore of Salisbury created new burgages at Sherborne
in 1227-28, he granted them “ with all liberties and free
customs pertaining to burgages of this kind.” 3 A comparison
of the phrasing here with that of Edward Γs charter annexing
Pandon to Newcastle-On-Tyne i is instructive, because char-
tered liberties unconnected with tenure had to be included in
the latter case.
As the lord had often a manorial market and fairs available
for his new borough, so he had always a manorial court, with
or without franchises, which could be used as it stood or
divided according as the whole manor or only a part of it was
included in the borough. It may sometimes have remained
undivided even in the latter case. The extent to which this
court became a really independent borough court depended
on the will of the lord.5 As a definite grant of a borough
court by charter was excessively rare,® and some charters of
creation contain no reference even to the lord’s court, we
must infer that this requisite of a borough was either taken
for granted as already there or implied in the grant of
burgage tenure. It seems clear, in any case, that if we look
only at the humbler boroughs, which had but partially
escaped from manorial fetters, their court was less distinctive
and less fully developed a burghal feature than was burgage
tenure.
As regards a large class of mesne boroughs, then, Maitland’s
explanation of the effect of a liber burgus clause would appear
1The monks of Durham founded a little borough at Elvet between
n88 and 1195, while still uncertain whether the bishop would grant them
a licence for a market and fairs (B.B.C. i. 171 ; C.Ch.R. iv. 323).
2 Selden Society.
3 B.B.C. ii. 45 ; cf. Agardsley above, p. 201. 1 Above, p. 205.
6 The burgesses of Warrington renounced their free borough court in
13o° on the demand of the lord (B.B.C. II. Ixxxv. 182, 386) and accepted
the legal status of " free tenants.” eB.B.C. ii. 146.