“ liberties, etc., pertaining to a free borough ” included these
and any other privileges enjoyed by the individual borough,
irrespective of their nature and origin, though such distinctions
may be still occasionally recognized in a formal way. Thus
the connotation of “ free borough ” varied from the privileges
of London or Winchester to the mere burgage tenure of the
humblest Seignorial borough. (6) By the close of the thir-
teenth century the administrative and financial policy of the
Crown was drawing a line which ended in the denial of burghal
status to a large number, perhaps the majority, of mesne
boroughs.

Clumsy as this variable conception of free borough and its
liberties may appear to be, especially in its application to the
creation of new boroughs, it represents a real attempt on the
part of the royal chancery to introduce some form and order
into a very intractable set of facts due to earlier want of system
and to the great outburst of feudal borough making, which
was only partly under the control of the Crown. This will
become clearer in the next section, where we trace the ante-
cedents of the liber burgus formula in the twelfth century.

So far we have been testing the modern interpretations of
that formula by the light of charter evidence, some of which
has not hitherto been taken into consideration. The result
seems to show that Gross was right in asserting that liber
burgus was a variable conception, but did not observe, or failed
to make clear, that in a general grant of that status to a mesne
borough the term seems to exclude those privileges which
only royal power could grant and to be more or less limited to
liberties involved in the primary fact of burgage tenure, even
when some of these higher privileges were conceded. Maitland
and Ballard, on the other hand, by concentrating their atten-
tion too exclusively on this simpler type of borough, missed
the fuller conception of liber burgus in the case of the greater
towns where the higher privileges overshadowed burgage
tenure. Maitland did not attempt a general definition, and
is substantially correct so far as he goes. Ballard’s definition
is scientific in its elimination of every feature which was not
common to all boroughs, from the greatest to the least. But
contemporaries were less concerned with scientific definition
than with a terminology which would represent actual facts.
If we give a rather wider interpretation to “ burgage tenure ”
than Ballard seems to do,¹ there had doubtless been a time

¹ See below, p. 213.

when his definition was approximately true of all boroughs,
and traces of the old restricted meaning of “ borough ” are,
as we have seen, clearly visible in the charters of the lesser
boroughs of the thirteenth century. What he failed to notice
was that the conception was an elastic one, and was expanded
in that century to include the great franchises of the more
important towns.¹

None of these writers seems to have observed the device
which enabled a brief general grant of borough liberties to
be made, despite the absence of a common standard among
boroughs. In the next section, too, it is hoped to show, what
has not been yet noticed, that the liber burgus formula was
not an absolutely new conception of John’s chancery, but
merely an adaptation of an older and less convenient formula.

3∙

If we could trust the text of a charter which Reginald,
earl of Cornwall, granted to the canons of Launceston between
1141 and 1167,² we should have to admit that liber burgus
and “ liberties pertaining to liber burgus ” were terms already
in use about the middle of the twelfth century and perhaps
much earlier. But their absence from all other known charters
before 1199 and the use of less advanced formulae down to
that date throw grave doubt on this feature of Reginald’s
charter. Proof of the second objection will now be adduced.

New boroughs were rare in the twelfth century as compared
with the thirteenth and were created by the concession of the
liberties and free customs of some one town or by a grant
of specified liberties and customs. Bishop Hugh de Puiset
prefaces his grant of the liberties of Newcastle-On-Tyne to his
borough of Durham with a single clause which rather closely
anticipates Maitland’s description of the effect of a later grant
of liber burgus in the case of a mesne borough : “ Quod sint
Iiberi et quieti a Consuetudine quod dicitur intoll et uttoll et
de merchetis et herietis.” ³ Intoll and uttoll were dues on the

^lThe cancellation of the Wells charter of 1341, granting high burghal
privileges, because it had not been preceded by an inquisition ad quod
damnum is no proof, as Ballard thought {English Borough in the Twelfth
Century, pp. 77 ff.), that Gross’s view is untenable. An early grant of liber
burgus, such as Wells had (1201), could not carry privileges which were not
then conveyed by it or which were of later institution, but after they had
been legally conferred they might be described as liberties of liber burgus.

² B.B.C. ii. 379-80.

⁸ Ibid. ɪ. 192. The clause is out of place here.

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