6o
BOROUGH AND COURT
The results of the foregoing analysis may be briefly sum-
marized. They lend no support to Ballard’s first hasty
theory that besides the infrequently meeting burhgemot of
Edgar’s law, the burgesses of every borough had to attend
a hundred court without their walls ; ɪ a theory so soon
retracted that it need not have been mentioned, had not
Liebermann incautiously committed himself to it just before
the retraction was published. On the other hand, the facts
are hardly to be reconciled with the older view, most clearly
voiced by Miss Bateson, that every pre-Conquest borough
had a court co-ordinate with that of the rural hundred.
The small boroughs of Somerset and Wiltshire which were
farmed with vills of ancient demesne, were themselves often
heads of hundreds, and in many cases, even after the Norman
Conquest, remained boroughs by prescription without separate
jurisdiction or sank into mere market towns, are difficult to
fit into this view. The supposed universality of borough
courts in the Anglo-Saxon period rests, indeed, almost entirely
on the apparent generality of Edgar’s institution of a burhgemot.
If his law applied only to the unshired Midlands, as has been
not very convincingly argued, or only to the greater boroughs
in which, by another law of his, three times as many witnesses
of sales were to be provided as in small boroughs or hundreds,
burghal history before the Conquest would be much simplified.2
Whatever may be the correct interpretation of this puzzling
law, the evidence of Domesday Book, confirmed by the later
title of certain borough courts, leads to the conclusion that
the burghal court of the Middle Ages was very generally in
origin a hundred court, a unit in the complete system which
was gradually worked out for the whole country except the
far north, in the tenth century, though confirmation of this
extension is hardly derivable from Cnut’s ordinance that every
freeman should be in a hundred and a tithing,3 the tithing
1The burgesses of some small boroughs may, we have seen (p. 54),
have done suit to the court of the hundred in which their borough lay,
meeting either within or without the town, but the case does not really
fall under Ballard’s theory, since they certainly had not a four-monthly
burhgemot as well. a See above, p. 42.
3 II Cnut, 20 ; Liebermann, Ges. i. 322. It would be rash to assert
that the division of boroughs into wards, which under that or other names
is already found in DomesdayBook at Cambridge, Huntingdon, Stamford,
and York, originated in Cnut’s legislation, but it was certainly utilized
in the working of the frankpledge system. At Canterbury, indeed, after
the Conquest the corresponding division was the borgħ, the usual local
name for the tithing. Before the thirteenth century these borghs were
reorganized as aldermanries with hundred courts, in pretty obvious imita-
tion of the London wards and wardmoots (Black Book of St. Augustine's
i. 394, 3971 Hist. MSS. Com. 9 Rep. pt. r, App. passim; B.B.C. i. 130).
THE DOMESDAY EVIDENCE 6ι
being apparently the territorial tithing of the South. The
larger boroughs could be treated as hundreds or half-hundreds
in themselves, or in the case of London as a group of
hundreds, but the smaller boroughs would have to be fitted
into rural hundreds.
To Dr. Stephenson this character of the normal Anglo-
Saxon borough court before 1066 as “ merely a part of an
ancient territorial organization ” forbids us to regard it as in
any sort a communal institution. “ It was no more significant
of urban life,” he says, “ than the wall that enclosed it ; for
both had been the work of the king, not of the community.” 1
The absurdity of attributing to the Anglo-Saxon boroughs
municipal liberties, which even after the Conquest were only
very slowly obtained from the crown, needs no demonstration,
but to make an absolute break in the history of the English
borough community at the Conquest is to go too far in the
opposite direction, further, indeed, than Professor Stephenson
had been prepared to go in an earlier section of his article,
where he admits that there are some traces of communal
liberty before the Conquest, primarily in the great seaports.2
Apart from such traces, however, his conception of the hundred
court of the borough seems open to criticism as too static.
At the date of the Conquest it had been in existence for a
century at least, time enough to develop a character of its
own. If at first only a unit in the general system of courts
in the land at large, it shared that origin with the courts of
the continental communes and free towns,3 and by the early
part of the eleventh century, as we have seen,4 it had already
evolved a burhrihtf a body of law which, as contrasted with
Iandriht, must have dealt chiefly with the special problems of
ɪ E.H.R. xlv. (1930), 202. s Ibid. p. 195.
a The ministers of royal justice in the Carolingian empire were the
Schoffen (scabini) and the civic court originated in the assignment of a
separate body of these to the urban area. ‘ Above, p. 40.
5 The burgherist or burgeristh which occurs twice in the Somerset
Domesday is a Norman mis-spelling of the same word, but it is apparently
used in a different sense. Earl Harold had received in his manor of Cleeve
the third penny of burgherist from four hundreds (D.B. i. 86b, 2—correcting
“ de ” for " et ” from the Exon. D.B.), and the list of the bishops of Win-
chester’s customs at Taunton is headed by burgeristh (ibid. p. 87a, ι). In-
terpretation is difficult for D.B. records no borough in the four hundreds,
but as one of them contained Watchet which is in the Burghal Hidage
and had a mint under Ethelred II, it seems most likely that the earl’s
borough “ third penny ” is in question. Philip de Colombières, baron of
Nether Stowey, had by royal grant from 1156 to 1181 ten shillings yearly
de uno burgricht (Pipe R.) and the “ third penny ” of Langport, of Axbridge,
≡∙nd perhaps of Bruton, in 1086 was ten shillings. (Cf. D.B. i. 87a,
2 with iv. 100.)