210
LIBER BURGUS
set up a gild merchant. Edward I’s charter to Caerwys (1290),
already referred to,1 granted “ a gild merchant with hanse and
all liberties and free customs pertaining to a free borough,”
though the constitution of Conway and Rhuddlan, which was
named as a model for the new borough, included the gild. In
the Kirkham charter, six years later, a free gild was granted
“ with the liberties which pertain to a free borough and to a
free gild.” 2 Gross remarked long ago that in charters gild
and borough are often treated as distinct conceptions, which
indeed they were. Though peculiar to boroughs and quasi-
boroughs,3 the gild was absent in many of them, including some
of the greatest ; where it existed it sometimes came into con-
flict with the purely burghal organism, successful conflict in
certain cases, and it often comprised non-burgesses as well as
burgesses. On the other hand, the wording of the Lyme Regis
charter (p. 202) seems to imply that the gild was granted as a
liberty of free borough in that case. It is true also that mesne
lords could apparently grant the gild without any licence, and
it may therefore seem unlikely that they were debarred from
doing so under a general licence. Stress has also been laid
upon the fact that the gild at Bridgewater has no known
creation unless it was authorized by John’s general grant of
the liberties pertaining to a free borough.4 One is prepared,
too, for the suggestion that in the Caerwys charter the gild is
only singled out as the most important of the borough liberties,
just as it is occasionally specially mentioned among the
liberties and customs of existing boroughs. But with the
exception of the Lyme Regis case, none of these arguments
seems strong. A mesne lord might have the power to allow
the gild, but not as a burghal liberty in the strict sense. The
lords of Bridgewater may have used their power to set up a
gild independently of John’s grant and even without a charter.
If the gild in the Caerwys charter were included among the
liberties mentioned in close association with it, we should have
expected the sentence to read : “ with hanse, and with all
other liberties,” etc. The singling out of the gild among the
liberties and customs of established boroughs is capable of
interpretation in just the opposite sense. However liberties
were classified in grants to new boroughs, whether as strictly
1Above, p. 203. Cf. R.L.C. ɪ. 345 b (ann. 1217). 2 B.B.C. ii. 283.
s E.g., Kingston-on-Thames, which, though it had burghal features,
was never called a borough, and was taxed as part of the royal demesne.
4Dilks in Proc. Somerset Archceological and Natural History Society,
lxiii. (1917). 44∙
CONTENT OF THE PRIVILEGE 2τι
burghal or otherwise, they were all privileges of the free
borough which had received them, and if one of them was
given special mention, the inference is perhaps rather that it
was felt to be different in kind from the rest than that it was
presented merely exempli gratia.
If this line of reasoning be sound, and if I was correct in
my suggestion (p. 204) that the men of Kingston-On-Hull
copied Scarborough for the liberties which were not granted to
them specifically (which did not include the gild), it might
explain why there was no merchant gild at Hull, though
Scarborough had one. However this may be, we shall see in
the next section that in the first half of the twelfth century a
clear distinction between gild and borough liberties was made
in an important charter of creation (ρ. 214).
There are more “ ifs and ans ” here than one could wish,
but it may be hoped that detailed investigation of the muni-
cipal history of particular boroughs will some day show exactly
what was obtained under these general powers.
We are now in a position to summarize the main con-
clusions to which our inquiry, so far as it has gone, appears to
have led : (l) In the thirteenth century as in the twelfth any
place, large or small, old or new, royal or mesne, which had
the specific burgage tenure could be described as a borough,
or free borough, for the epithet merely emphasized the con-
trast with manorial unfreedom, but beyond this there were
wide differences in the privileges enjoyed by them. (2) A
simple grant that a place should be a (free) borough and its
inhabitants free burgesses involved liberties and free customs
appurtenant to burgage tenure, but new creations usually
contained also an express grant of such liberties and customs
either (α) by specification, or (b) by gift of the liberties, etc.,
of some borough which was named in the charter, or (c) by a
general grant of the liberties pertaining to a free borough, with
or without partial specification. (3) As there was no single
standard of borough liberties, the effect of (c) certainly, and of
(α) probably, was to allow some freedom of choice in regard to
the borough whose institutions were to be followed. (4) The
limitations under which this freedom of choice was exercised
in the case of mesne boroughs remain at present uncertain,
but there is good reason to believe that markets and fairs, if
not already possessed by the manorial lord, and general ex-
emption from toll required a special grant. (5) In the case of
royal creations and of established boroughs generally the