The name is absent

firmer ground. That such part as the burgesses had been
suffered to take in the government of the purely dominical
borough had been exercised by a well-to-do minority is un-
deniable. Far back in the eleventh century we have record
of burhwitan in the Devonshire boroughs, and similar traces
are found in charters and other evidence of the twelfth century.¹
They have been usually identified with the doomsmen of
the borough court, but Professor Stephenson, as we have
seen, holds that after the Norman Conquest this power fell
to the leading gildsmen, where there was a merchant gild,
and to the chief merchants where there was none. In the
former case the Gildhall was the earliest council house. Some
obvious objections to this assumption have already been
stated, and to these we may add that the aidermen of London
owed their administrative status not to their connexion with
trade, but to their being heads of the wards and judges of the
husting. At Lincoln, too, it was perhaps the twelve judges
who formed the thirteenth-century council. Of the three
outstanding features of the borough council of the thirteenth
century, election, the oath and the fixed number, there is
no earlier evidence at all of the first two and no convincing
proof of the third. There is evidence, indeed, which points
to the absence of any restriction of numbers. While the
first Custumal of Northampton, the date of which is about
1190, was drawn up by forty persons, whose names are given
in the preamble, the second, about 1260, was issued by “ the
twenty-four jurati of Northampton.” ²

It would be easier to make out a plausible case for Maitland’s
theory of the origin of town councils in the old borough
judiciary than for that which traces them to “ the caucus in
the Gildhall.” It fits London and possibly Lincoln. The
constant insistence in the Cinque Ports Custumals on the
judicial functions of the jurats of the ports in their hundred
courts, might seem to strengthen the argument. More
impressive still, at first sight, is the case of Chester, where,
despite its early merchant gild, the doomsmen (Judicatores)
of the portmoot apparently formed the administrative body
in the thirteenth century, judging by their attestations of
charters and known position in the community.³ On the

¹ Above, pp. 273, n. 2, 286.

² Bateson, Borough Customs, i. Introd., p. xli f.

^s Journal of Chester ArchcBological Society, N.S. x. 20, 29. They were
not elective, the obligation to serve resting on particular houses, an obliga-
tion still in existence, formally at least, in the fifteenth century (Chartul. of

DR. STEPHENSON’S THEORY 301
other hand, the earliest gild council, concerning itself with
town business, of which there is record, that of Leicester,
dated only from 1225, when councils were already no novelty.
It is true that the evidence for Maitland’s view is not so strong
as it looks. The Cinque Port jurats at Romney and probably
generally were chosen from the barons, the original doomsmen,ɪ
The Chester case, too, is apparently merely one of slower
development, for it is quite unlikely that the ruling council
of twenty-four seniores which appears by 1400 was the
same body as the Judicatores of the thirteenth century. But
the really important question is not so much whether the
“ lawful men ” of the old portmoots became councillors qua
traders or qua doomsmen, but whether this was or was not
the result of deliberate re-organization. The evidence for
such reorganization at Ipswich, Northampton, Dublin and
Yarmouth seems definite enough, but it does not satisfy Pro-
fessor Stephenson. The council of twelve discreciores whom
John in 1215 instructed the citizens of Northampton to elect to
manage their affairs along with their new mayor, in his opinion,
merely continued an existing practice under other chief officers.²
But if so, why was it necessary to give any such instructions ? ³
Why should the burgesses of Ipswich in 1200 have recorded in
such detail the election and functions of their new council ? ^λ

Chester Abbey, Cheth. Soc. N.S. 82, p. 341 ; M. Hemmeon, Burgage Tenure in
England, p. 72, n. 3, from Cal. Anc. Deeds, iii. 350). The largest number of
these judges witnessing an extant charter is nine (c. 1230_j J.C.A.S. N.S.
x. 20).

¹ See above, p. 261.                  ² Borough and Town, p. 178.

³ The necessity would be even less apparent were he right in implying
(p. 178) that the burgesses of Northampton had set up a similar council
fifteen years before. This is an inference from the likenesses between
five charters of 1200, of which the first in date was granted to Northampton
and the latest to Ipswich. All five included fee farm and election of reeves.
Professor Stephenson assumes that the Northampton charter served as a
model for Ipswich and that “ the action taken by the men of Ipswich
followed the precedent set of Northampton.” But as all five charters were
issued within five weeks, that of Northampton was certainly in no real
sense the model for those of Shrewsbury and Gloucester granted three and
four days later respectively or even for that of Ipswich.

NOTE

The force of “ free ” in " free borough ” may be compared with that in
“free manoι ” (liberum manerium), a term applied to those manors for
which were claimed franchises (Iiberlates) which, the Crown insisted, must
be justified by the evidence of royal charters (Feudal A ids, iι. 24). The
term occurs as early as 1212 (Booh of Fees, 1. 87).

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