286
ORIGIN OF TOWN COUNCILS
conies from Liebermann and Miss Bateson. Still less can we
accept the authority of the Ipswich Domesdayfor an apparent
assertion that by 1200 all free boroughs possessed councils of
this kind.1 It occurs, indeed, in a copy of a contemporary
document, and was therefore accepted by Liebermann,2 but it
is either an ambiguous statement or a later interpolation. We
may, indeed, admit, with Miss Bateson, that in the complete
absence of any other evidence “ there has been a tendency to
underrate somewhat unduly the amount of municipal unity
in the twelfth-century ‘ shire ’ of London before the days of
the mayoralty,” and perhaps to underestimate the extent of
administrative work in other important towns. It is not
known what re-organization, if any, took place in London
during the short period when the citizens held the fee farm
and elected their officers under Henry Γs charter, but it
is absurd to suppose that his grandson, who sternly repressed
“ communal ” ambitions in the boroughs,3 allowed the election
of bodies so closely associated with the dreaded commune
of the Continent. Much more probable is the view that the
town government, so far as the burgesses had any share in it,
and so far as that share had not passed into the hands of their
merchant gilds,4 was still transacted by the probi homines
of the undifferentiated borough court, though that doubtless
in practice meant the wealthy few, the meliores, discretiores,
potentiores, or probiores,6 as in the case of the aidermen at
London, themselves perhaps not yet fixed in number. The
close association of councils of defined number and functions,
when they first appear in our sources, with the new office
of mayor, seems to stamp them as a product of the communal
spirit released by the abandonment of Henry IΓs restrictive
policy in the reigns of his sons.
Such a conscious creation of a novel municipal organ as
is here suggested is totally opposed to the evolutionary theory
of the growth of town councils propounded by Maitland in
'Above, p. 270. Dr. Stephenson prefers to take alii Iiberi burgi in
the restricted sense of “ some other free boroughs ” (Borough and Town,
p. 177), and the references to the royal free boroughs in the Ipswich
charter lend some support to this. See p. 2x7 and note 3, p. 271.
3 Gesctze der Angelsachsen, ii. 662.
3 Above, pp. 162, 176. 1 See above, pp. 232-3.
6 Probi homines itself came to have this narrower meaning and in the
next century was used of the councillors of Southampton and Yarmouth,
but in the address of royal writs it was a common equivalent of barones,
ciυes, or burgenses (Rotuli Litterarum Clausarum, passim, and of. ibid. i.
223b, 224 (Droitwich)). See also C.P.R. 1266-72, p. 522 (Colchester).
MAITLAND’S THEORY OF ORIGIN
287
the History of English Law (1895, 2nd ed., 1898), and more
shortly in an article on “The Origin of the Borough” which
appeared in the English Historical Review in 1896. Ad-
mitting that the known facts did not justify any wide infer-
ences, he formulated in 1895 a theory of conciliar development
within the borough court :—
“ In the town, as in the ɪealm at large [he wrote], ‘ court ’
and ‘ council ’ are slowly differentiated, the borough court
becomes a mere tribunal and by its side a distinctly conciliar
organ is developed. This, however, except perhaps in ex-
ceptional London and a few other towns, seems to be rather
the work of the fourteenth than of the thirteenth century.” 1
Little attempt is made to fill in this general outline, and the
details suggested do not seem altogether consistent. In the
History he throws out a suggestion that councils may have
been formed “ by a practice of summoning to the court only
the more discreet and more legal men,” a practice, one may
comment, which would leave unexplained the fixed numbers
of the councils, but in a footnote he speaks of the development
of an old body of doomsmen or lawmen into a council as the
typical case, and this was the view he stated more prominently
in his latest treatment of the problem : “ When first we meet
with a select group of twelve burgesses which is beginning
to be a council, its primary duty still is that of declaring the
judgements or ‘ deeming the dooms ’ of the borough." 2
That the borough court was normally the urban equivalent
of the rural hundred court, not infrequently retaining its
name, and that there is some evidence of a select body of
doomsmen in it in some parts of the country at all events,3
is not disputed. But as Maitland himself emphasized the
great variety in the number of doomsmen in rural hundreds
and did not adduce more than one clear case where they were
1Pollock and Maitland, History of English Law, ed. 1898, i. 659.
2 E.H.R. χi. 19.
3 Judges (indices) of the borough of Buckingham, whose number is
not specified, are mentioned in 1130 (Pipe Roll, 31 Hen. I, p. ɪoɪ). One
or two citizens of London appear about the same date with the title of
iudex or doorman, presumably of the folksmoot (Round, Ancient Charters
(Pipe Roll Soc., no. 10), p. 27 ; Hist. MSS. Comm., Rept. IX, Appendix i,
p. 66a). There was an early tradition (c. 1250) that the twenty-four
iurati or Iuratores of the Leicester portmoot went back to the Norman
period (Bateson, Records of Leicester, i. 41), which, if credible at all, can
hardly be correct in regard to their name. At Chester doomsmen (iudica-
tores) of the portmoot are mentioned asiate as 1293 (Chester County Court
Rolls (Chetham Soc., N.S., 84), p. 181), Cf. below, pp. 300-1.