2l8
LIBER BURGUS
were results of French mercantile settlement after the Norman
Conquest. Gross’s interpretation of free borough as a “ vari-
able generic conception ” is inacceptable as minimizing the
fundamental importance of the burgage tenure of land and
obscuring its origin as a Norman innovation. As a matter of
fact, Gross did include it in the conception of free borough, but
regarded it as so ancient and fundamental a feature of the old
English boroughs that it was seldom mentioned in their
charters, while it was naturally prominent in new foundations.
The question which is really at issue, therefore, is whether
burgage tenure in the older boroughs existed, though not under
that name, before the Conquest. Mr. Stephenson himself in
other chapters of his book, but not here, admits, rather
grudgingly, that to some extent it did so exist. But we may
go further than that. Evidence has been adduced above
which, to my mind, shows that the Conquest involved no
essential change in burghal land tenure in the ancient boroughs.
Not only is there no trace of conversion, but its possibility is
excluded by the survival of Anglo-Saxon nomenclature along-
side the new Norman one. The burgesses of London for two
and half centuries after the Conquest held their tenements in
socage,1 and it was not until the fourteenth century that the
name of their tenure was changed to free burgage. Nor was
this peculiar to London. The same term was used at Worces-
ter,2 occasionally at Bristol3 and probably in other boroughs.
This usage throws a useful light upon the legal conception of
burgage tenure as being a form of socage. Socage, too, was
the tenure in those towns on the privileged ancient demesne
of the Crown, such as Basingstoke, Godmanchester, and
Kingston-on-Thames, which, without being formally con-
sidered as boroughs, had burghal liberties and were ultimately
incorporated.
Dr. Stephenson’s insistence on the novelty of burgage
tenure causes him to attach excessive importance to Maitland’s
obiter dictum on Uber burgus. It only applied to new boroughs
of the simplest kind, created by the enfranchisement of manors,
and he suggested that “ the free tenure of houses at fixed and
light rents which was to be found in the old shire towns ”
ɪ See above, p. 107.
2 Cartulary of Worcester Priory, no. 395. Simon POer acquits land
of a tenant against the king’s reeve of 4⅜<i. “ qui sunt de socagio domini
regis.” I owe this reference to Mr. R. R. Darlington.
a E. W. W. Veale, The Great Red Book of Bristol, Introd., Part I,
p. 167. (Bristol Record Society, vol. II, 1931.)
DR. STEPHENSON ON LIBER BURGUS
219
formed at least one of its models. Mere enfranchisement was
at any rate an absolute minimum and must have been sterile
without further liberties. Indeed Dr. Stephenson has to
admit that the “ free burgage ” conferred on various new
boroughs in the twelfth century, from Beverley onwards, was
not merely burgage tenure of land, but the sum total of the
liberties that made them boroughs.1 This abstract conception
had no direct reference to the free burghal tenement, for
burgage in the concrete sense of such a tenement was derived
from the word in its wider sense of “ borough status,”
‘‘ borough liberties,” and it was rarely used in the older and
larger boroughs. In seignorial charters the distinction is
sometimes quite clearly expressed, as, for instance, in that of
Pontefract (1194) which grants to the burgesses “ Iibertatem
et liberum burgagium et toftos suos tenendos de me et her-
edibus meis in feodo et Iiereditate . . . reddendo annuatim
. . . xii denarios pro quolibet tofto.” 2
As all boroughs had not the same liberties, free burgage
meaning, “ the sum total of the liberties which made a place
a borough ” sounds so like a “ variable generic conception ”
that Dr. Stephenson hastens to add to his recognition of the
fact that we are not thereby driven to accept Gross’s dictum.
“ The concept of the free borough or of free burgage in
the twelfth century . . . was,” he says, “ not variable, but
stable.” The period is limited in order to exclude the possi-
bility—doubt is thrown on probability—that the evidence
of late thirteenth-century date adduced in support of Gross’s
theory of the extensibility of “ free borough ” to include
successive new liberties may prove well-founded. But was
the “ free burgage ” of the previous century really stable and
non-extensible ? Evidence is much scantier, but if York,
for instance, had secured a new liberty after the grant of its
old ones to Beverley, a subsequent grant of its “ free burgage ”
to some other new borough would surely have included this
addition ? It was this instability, this variation of content
which made it necessary when “ free burgage ” was granted
to a new borough to define it by reference to some existing
borough or boroughs. Affiliation of this kind and that pro-
duced by the gift of the higher liberties of some old boroughs
to others less highly privileged tended no doubt towards a
fixed conception, but it was only a tendency and was always
ɪ Op. cit., pp. 142-3.
a B.B.C. ɪ. 41, 48.