288
ORIGIN OF TOWN COUNCILS
twelve,1 it seems very unsafe to postulate the general existence
of exactly that number in borough courts. Maitland seems
to have had in his mind the twelve lawmen of certain midland
boroughs and the twelve indices of Chester who are recorded
in Domesday Book. It should be remembered, however,
that the former at any rate were a Scandinavian institution
which apparently did not long survive the Norman Conquest,
while Chester was within the area of Scandinavian influence.2
Liebermann was inclined to reject any derivation of borough
councils of twelve from the lawmen.3
If the new councils had developed from bodies of twelve or
twenty-four doomsmen, we should have expected, but do not
find, that, as in the case of the continental scdbini, the old
name would have remained attached to them, especially if
their work was still primarily judicial. Apart from the
Lincoln case, which has its difficulties, such a primacy is,
indeed, very doubtful, as a glance through the earliest notices
of councils collected in Section I above shows clearly enough.
It is true only of those bodies at London (i206), Oxford,
Cambridge, and Yarmouth, which were specially created to
repress local injustice or disorder and which had obviously
no continuity with the judiciary of the old borough. In all
other cases “ the rendering of judgements ’’ either appears
as one only, and not the first, of the councillor’s duties or is
not mentioned at all. Executing the king’s commands,
governing the town, advising the town or the mayor, saving
and keeping the town liberty, these are functions prominently
assigned to the councils.
There is, indeed, one clear case, and that the most impor-
tant of all, of the slow development of an administrative council
from the judiciary of a borough court. But, though the aider-
men of London, the judges of its Husting court (but not a
fixed number from the first), established themselves as the
ruling council of the city, it was not, as we have seen, without
opposition and some apparent attempts to set up a council
chosen by the community as a whole. London, moreover,
was an exceptional borough, and the Leicester tradition that
the twenty-four iurati of their portmoot, who appear as a
ɪ E.H.R. iii. 420 ; History of English Law, i. 557.
t But as the thirteenth century judicatores were at least nine in number
(below, p. 300, n. 3) it is possible that the full number here was twelve as
in 1066.
3 Gesetze der Angelsachsen, ii. 566, 6 d. Cf. 622, 19 b. For the lawmen,
see also Vinogradoff, English Society in the Eleventh Century, pp. 5-6.
MAITLAND'S THEORY OF ORIGIN
289
council in the second half of the thirteenth century, were very
ancient does not establish a case in point, since their adminis-
trative functions were taken over from a council of the mer-
chant gild.1 Leicester, indeed, affords a striking instance of
a town council originating not in the gradual development of
the borough judiciary but in the conscious action of its bur-
gesses in their trading capacity.2
Neither the London nor the Leicester case can have
contributed to the formation of Maitland’s theory, for until
1902 it was not known that the aidermen of London were
judges of the Husting court in the twelfth century and the
Leicester evidence was first published in 1899. The evolu-
tionary explanation of the growth of town councils must,
indeed, have been based on general probabilities rather that
on established facts. Most of the thirteenth-century evidence
collected above was still in manuscript in 1896 or lurking
unnoticed in the printed folio of the Rotuli Litterarum Claus-
arum. It was this apparent absence of evidence which
led Maitland to place the general appearance of councils
not earlier than the fourteenth century. With the fuller
material now available and the probability that it is only a
fragment of what once existed, we shall not be far wrong in
expressing a belief that by the end of the thirteenth century
most of the important towns had councils busily engaged
in administrative work, though also in the generality of cases
rendering judgements in the borough courts, not indeed,
usually, because they were old bodies of doomsmen, but as
one of a number of functions entrusted to a new municipal
organ. It was actually, we may surmise, that decay of the
old judiciary owing to judicial changes in the courts, assumed
both by Stubbs and Maitland as an element in the develop-
ment of town councils, which cleared the ground in many
cases for a new arrangement.
1 Above, p. 274.
2 Sworn administrative councils believed to be old were not unknown
in non-urban areas in the thirteenth century. In 1257 the supervision of
the walls and ditches of Romney Marsh was in the hands of twenty-four
iuratores who are then said to have existed from time immemorial. It was
only five years before this, however, that the judicial enforcement of the
duty of maintenance upon the tenants of the marsh had been transferred
from the sheriff to them (N. Neilson, Cartulary of Bilsington Priory (Brit.
Acad.), pp. 42-3). Besides the twenty-four each “ watergang ” had its
twelve iuratores (Black Book of St. Augustine’s (Brit. Acad.), i. 610). The
bailiffs, jurats, and community of the marsh were incorporated in 1462
(Cal. Charter Rolls, vi. 181). The jurats of Portsmouth were also called
iuratores (East, Portsmouth Records, p. 116).