354 EARLY MUNICIPAL HISTORY IN ENGLAND
went on the principle of giving each borough, royal or
baronial, the latter comparatively few, a complete monopoly
of trade in a definite area, which was in some cases a whole
shire.1
The court of the borough has been confidently claimed
as a distinctive feature, and if all boroughs had possessed the
full hundredal court which the greater towns enjoyed per-
haps the claim might be allowed. But the usual court of a
seignorial borough, even when called a portmoot, was the
ordinary feudal court of the normal rural manor, and like it
might or might not possess some criminal jurisdiction. At
Manchester this criminal jurisdiction (in cases of theft) was
deliberately withheld and reserved for the lord’s higher
court. Any growth of independence was repressed by the
presidency of the lord’s steward or bailiff, and in the signifi-
cant case of Warrington, where a long minority had enabled
the burgesses to assert some freedom, the court was suppressed
altogether. This seems to have been a court of burgesses
only, but the courts in all boroughs were not so limited. At
Bakewell, for instance, the freeholders of the manor were
joined with the burgesses both in the court and in the privi-
leges granted by the charter. Clifton-On-Teme, chartered in
1270, had only a seignorial court and owed suit to the sheriff’s
tourn.2
We are not justified, therefore, in regarding a court of
burgesses as a universal criterion of a borough, and, even if
it were, it would be rather a reflection of the essence of the
institution than the essence itself. For it seems obvious that
where there were burgages and burgesses there was in some
sense a borough.3 It is the great merit of Dr. Hemmeon’s
book on Burgage Tenure in England that it emphasizes this
tenure as the vital principle of the borough everywhere. It
is true that he has to admit the presence of some features
of burgage tenure on ancient demesne in places where there
ɪ Scott. Hist. Rev. хш. 16 ff
• R. G. Griffiths, Hist of Chfton-On-Teme (Worcester, 1932), ch V,
pp. 42-3.
•This is clear in the case of Higham Ferrers. In 1251 William de
Ferrers, earl of Derby, emancipated eighty-eight serfs there, converting
their lands held at his will into free burgages " sιcut Continetur in carta
nostra quam eιsdem fieri fecιmus de libero burgo in Hecham habendo
(EHR XVii (1902), 290) Cf p 206 above
Professor Clapham holds that the forty-nine burgages of Linton,
Cambs , in 1279, did not make it a borough Ifiamlir. Hist Journal, ιv.
(ɪ933), 198), but, for all we know, it may have been called so for a time.
EARLY MUNICIPAL HISTORY IN ENGLAND 355
was no borough,1 but there are exceptions to all rules, and
the middle ages were full of them. Complication, cross-
divisions, and blurred outlines, rather than logical categories
and clear-cut definitions, were the characteristic features of
their slow and painful process of evolution.
In the widest sense of the word, then, the medieval borough
may be defined as an urban area in which the tenements were
held by low quitrents in lieu of all or nearly all service,2
and were more or less freely transferable by sale, gift, and
bequest, subject in many cases, in varying degrees, to the
rights of the family and of the lord, where there was one.
The latter sometimes exacted a transfer fee, more rarely
reserved a right of pre-emption, and very generally prohibited
alienation of burgages to certain categories of persons, chiefly
religious houses and Jews.
Charters tended to stereotype custom in boroughs just
at the time when the royal judges were developing the
common law outside them. Among the peculiarities of
borough law which resulted, the most striking was the not
uncommon, though often restricted, right of bequest of land
by will, which had been suppressed in the common law.
Hence in some borough records we find a double system of
probate, for after the will had been proved before the
ecclesiastical authority, bequests of tenements and rents
were approved before the mayor or bailiffs.3 This right of
devise of land was less usual in the Anglo-Norman boroughs
than in the old English ones because their Norman models
did not know it.
The wide use of the term “ borough,” which has just
been explained, could not efface the practical distinction
between the larger towns and the host of petty boroughs which
had been called into existence since 1066. With the ex-
pansion of the national administration and the growth of
ɪ The prevalent tenure was not burgage but privileged villeinage (or
villein socage) Such likenesses to burgage tenure as the allowance of sale
and devise of tenements were due to the common favour of the Crown
Leases of the farms of some manors of ancient demesne created quasι-
burghal constitutions and those which, like Basingstoke and Kingston-on-
Thames, had really urban possibilities became ultimately incorporated
boroughs. Of the two places quoted by Maitland (H E.L. ι 640) as having
burgage tenements but not called boroughs, one had been a borough and
the other may well have been (В В.С. II. 1 )
2 As late as c. 1202 the founder of the seιgnorιal borough of Egremont
reserved an annual day’s ploughing and a day’s reaping (B.B C. 1. 95).
, See, for instance, H Ingleby, The Red Register of King's Lynn, 1.
passim.