Front Page Titles (by Subject) I.: The Malmesbury Case. - The Collected Papers of Frederic William Maitland, vol. 2
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I.: The Malmesbury Case. - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 2 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 2.
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The Malmesbury Case.
That land was owned by communities before it was owned by individuals, is nowadays a fashionable doctrine. I am not going to dispute it, nor even to discuss it, for in my judgment no discussion of it that does not deal very thoroughly with the history of legal ideas is likely to do much good. I must confess, however, to thinking that if the terms “community” and “ownership” be precisely used,—if ownership, the creature of private law, be distinguished from a governmental dominion conferred by public law, and if ownership by a public community (universitas, persona ficta) be distinguished from co-ownership (condominium, joint tenancy or tenancy in common),—then this doctrine is as little proved and as little probable as would be an assertion that the first four rules of arithmetic are modern when compared with the differential calculus. But this by the way, for my present purpose is merely that of raising a gentle protest against what I think the abuse of a certain kind of argument concerning “village communities”—the argument from survivals. Some quaint group of facts having been discovered in times that are yet recent, some group of facts which seems to be out of harmony with its modern surroundings, we are—so I venture to think—too often asked to infer without sufficient investigation that these phenomena are and must be enormously ancient, primitive, archaic, pre-historic, “pre-Aryan.”
Of course I am not saying that there is no place in the history of law for inferences drawn from the present to the past. A historian who, when dealing with a particular age, let us say the eleventh century, refused to look at any documents that were not so old as that age, would not merely place himself under a self-denying ordinance of unnecessary rigour, he would often be casting away his most trustworthy materials. The student of Anglo-Saxon law, for example, who refused to look at Domesday Book, because it did not belong to “his period,” would be guilty of pedantry and worse. The surest fact that we know of Anglo-Saxon land law is that it issued in the state of things, more or less intelligently, more or less fairly, chronicled by Norman clerks as having existed on the day when King Edward was alive and dead. But obviously the method which would argue from what is in one century to what was in an earlier century, requires of him who employs it the most circumspect management. I need not expand this warning into a lengthy sermon; it has been given once for all in words that shall never be forgotten—“Praetorian here! Praetorian there! I mind the bigging o't.”
If these words should be always in the ears of every one who is hunting for “survivals,” they should, so it seems to me, be more especially remembered by those who, not content with the phenomena which they can find in the open country, are looking for exceedingly ancient and even pre-historic remains within the walls of our English boroughs. Here if anywhere the danger of mistaking the new for the old is an everbesetting danger.
To come to particulars:—When we see burgesses occupying land in severalty by a communal title—that is to say, occupying because they are burgesses and so long as they are burgesses—and when we see further that their occupation is subject to communal regulations, subject to the bye-laws made by the governing body of the corporation in the name of the corporation—we must not at once infer that this is a very ancient arrangement. In a very large number of instances the title by which a borough corporation holds its land—even land within or adjacent to the borough—is known to be a modern title; indeed it will I think be found that the borough “communitas” of the thirteenth century was but rarely a landowner; it generally owned valuable “franchises,” but not land. In some cases the boroughs of the later middle ages profited by the liberality of individual burgesses; in other cases they profited by the Protestant Reformation, they acquired lands which had belonged to monasteries and to religious or semi-religious gilds; in yet other cases they obtained from the king or some other lord the ownership of soil over which they had for a long time past been exercising rights of pasture.
Now when land was thus acquired, what was to be done with it? Let it at a rack rent, we moderns may say, carry the proceeds to the account of the borough fund, and then expend them on some object useful to the town at large, upon paving, lighting, water-supply, elementary education, or the like. But this is to impose upon our ancestors our own notions of right and wrong, and very modern notions they are. If we go back but a little way we find that the property of the corporation is regarded as being, not indeed the property of the corporators, but still property which the corporators may enjoy very much as they think best. Of course the corporators are neither joint tenants nor tenants in common of this property; they are to enjoy it because they are corporators, and “shares” in the corporation (if we may use that term) do not obey the common rules of private law applicable to cases of co-ownership, though often enough “birth” and “marriage” are titles to “freedom”:—still they are to enjoy it. There is no other purpose for which it exists. No doubt the great reform of 1835 was a sadly needed reform; but the historian of our towns will have to point out that the harm that was to be remedied had been done much rather by the oligarchic constitution of the corporations,—in many cases a constitution deliberately fashioned for the purpose of making them the instruments or the playthings of politicians,—than by the prevalence of the notion that the property of the corporation should be enjoyed by the corporators. That notion was a very natural one, and we cannot blame our forefathers for having entertained it. The property of the corporation was not (except in quite exceptional cases) “impressed with a trust.” No one had ever laid down the rule that the only possible “ideal will” of this persona ficta must be that of keeping a well-lit, well-paved, well-watched, healthy and cleanly town. And so if the borough had land the burgesses meant to enjoy it. If they let it they would divide the proceeds among them, perhaps in equal shares, perhaps bestowing preferential shares on their aldermen or chief burgesses. But they might well like to enjoy it in specie, to cut it up into allotments, to allow every burgess to hold an allotment so long as he was a burgess, paying no rent or a rent much lower than that which a stranger would have given:—a score of intricate variations on this theme might be devised. Especially if the corporation of a small borough acquired land hard by the houses of the corporators, some plan of allotting the land among the burgesses would very probably be adopted at some time or another. A burgess of such a borough would much rather have some little plot which during his lifetime he could call his own, than a dividend of a few shillings or a right to turn out beasts upon a waste.
If I am not mistaken, we can see this in our own day. At Bishop's Castle in Shropshire—so the commissioners of 1835 reported—the burgesses had a right of common on a pasture containing from ninety to one hundred acres, called the Moat Hill or Burgesses’ Hill. “It is a right of common without stint, but being merely adapted for a sheep walk, it is represented to be of inconsiderable value1 .” Before 1880 this pasture had been turned into arable land, cut up into small portions held in severalty by several burgesses, each of them holding under a lease from the corporation at a rent of 5s. per acre for a term of sixty years, renewable for ever on a fine of £51 . How had this come about? There had been some dispute between the corporation and some of the burgesses. Some of the burgesses had enclosed pieces of the land, and then the matter was settled on the terms just mentioned.
At West Looe the members of the corporation had turned out their cattle over a certain down. The corporation, having passed through every stage of degradation, finally became extinct. In 1828 the commoners, without any Act of Parliament, enclosed two-thirds of the common, cutting that part up into seventy-three little plots which they let at small rents to certain members of their body, mostly poor fishermen of the village. “Did all the inhabitants have these inclosures?” “Many of the inhabitants had these inclosures; they were let at a yearly rent.” “But how were they chosen?” .... “They settled it among themselves; they never disputed it.” “But some got back an equivalent [for their pasture right] by taking a piece which they rented, and others apparently got nothing?” “Quite so.” “How was that settled?” “I think that it was settled in this way, that after paying a certain amount of money for the expenses and other matters, the general income was handed over to the overseers for the poor-rate.” “The whole population had a certain benefit out of it?” “They all had a benefit from it.” Then in stepped the Duke of Cornwall with seignorial claims to this soil, but seemingly very willing to do what was fair by the men of Looe; and by means of a conveyance to trustees all was, we may hope, settled for the good of all1 .
Now the question that I would ask is whether it is not very possible and even probable that what we see the men of Bishop's Castle and West Looe doing in the full glare of the nineteenth century, has been done by the burgesses of other boroughs in times that we cannot call archaic or primitive or prehistoric, times which lie well within the limit of legal memory.
Let us observe some few of the divers modes in which our burgesses have used the lands belonging to the boroughs, placing ourselves at the date of the great municipal reform.
Very often of course “burgesses” or “freemen” as such claim rights of pasture over soil of which the corporation is the owner, or (to speak more nicely) the tenant in fee simple. Sometimes the right of pasture is regarded as an appurtenance to a tenement in the borough. Thus in Clitheroe2 the right to be a burgess was given by the tenure of certain burgage tenements. There were seventy-eight “free-borough houses,” ten “borough houses,” and fourteen “borough crofts.” “The free borough houses formerly conferred a right of common of pasture for one horse and one cow, on the moors or commons within the borough. These are now inclosed. Borough houses and borough crofts were not entitled to such horse-gate and cow-gate.”
Very often again all the “resident freemen” as such have pasture rights. Sometimes they have to pay small sums for it, sometimes not. Thus at Beverley1 “the burgesses residing within the town have the privilege of depasturing cattle, being their own property, on lands belonging to the corporation, containing about 4217 acres. They are allowed to depasture three cows in Westwood pasture; one horse in Hurn Pasture; three beasts in Figham Pasture, and six beasts in Swinemoor Pasture from the 14th of May to the 14th of February. This privilege, if enjoyed to its utmost extent, would be worth £25 a year. Few enjoy it to that extent. Indeed the land would not support the cattle if all who were entitled so used it. Persons depasturing are subject to the payment of a small sum on every head of cattle depastured. This sum varies from 5s. 6d. to 16s. 6d. a head.” At Doncaster2 “every resident freeman is entitled to turn two head of cattle upon a tract of land belonging to the corporation, containing 142 acres, called the Low Pastures, during the summer season. This privilege is worth, to each freeman, about £1 per annum. A resident freeman may let this privilege to another resident freeman. The freemen are also entitled to the aftermath in a meadow called Crimpsall Meadow, containing about sixty-five acres. This privilege is worth very little; the eatage is soon consumed, it being without stint; it does not last more than a week or ten days.” ... “The Neatherd looks after the cattle depasturing on the low pasture, being the freeman's pasture. He is allowed 13s. 4d. a year, a pair of boots every year, a house and two acres of land rent free, of the value of about £10, and two cattle gates on the low pasture worth about 10s. a year each.”
Then at York1 we find that the rights of the freemen vary from ward to ward. They “exercise a right of pasturage over several pieces of waste land in the neighbourhood of the city. Their rights in this respect vary according to the several wards in which they inhabit. The freemen inhabitants of ancient messuages in Bootham Ward are entitled to a right of pasturage for three head of cattle, either cows or horses, on a tract of land in the parishes of Clifton and Huntingdon, containing about 180 acres, subject to the payment of 10s. a year for every cow, and 12s. for every horse depastured;; the number of freemen who exercise this right is about seventy. The freemen occupiers of houses in Monk Ward are entitled to depasture two heads of cattle, either horses, cows, or other beasts, on a tract of about 131 acres, subject to annual payment of 10s. for each beast; about 100 freemen generally exercise this right, and the number of cattle depastured is generally about 150. Freemen occupiers of houses in Walmgate Ward are entitled to pasturage for one head of cattle only, i.e. one cow with a calf, one mare with a foal, or one gelding, on about seventy-five acres of land, subject to the payment of 20s. for each beast; about 100 freemen exercise this right. The freemen inhabitants in Micklegate Ward, and certain parts of Bootham Ward, Monk Ward, and Walmgate Ward are entitled to pasturage for one gelding, or one mare with a foal, and two cows, upon several tracts of land, containing together 437 acres, subject to an annual payment of 8s. for each horse, and 6s. for each cow; about 400 head of cattle are usually depastured on these lands. These annual payments for depasturing cattle are received by the pasture masters, and by them applied about the necessary expenses of guarding the cattle and keeping the lands in order.”
Elsewhere we may find that not all, but only some of the burgesses, are entitled to pasture. At Lancaster1 “the free burgesses are entitled to a right of common on Lancaster Moor; but in practice this common is used by almost every one who has property adjoining it. The eighty senior burgesses are entitled to an equal share in the net income, arising from some ground, called Lancaster Marsh, the property of the corporation. Lancaster Marsh was formerly a stinted pasture; and by an old custom, of the commencement of which there is no record in the corporation books, the senior eighty resident freemen were alone entitled to the herbage. The Marsh was inclosed in 1796, and the rents, still called Marsh-grasses, are now apportioned among the freemen, according to the old custom. This property is exclusively under the management of the Bailiff of the Commons: the leases are for seven years, at rack rent. The rents now produce about £4 to each of the eighty persons, and greatly exceed the value which the land possessed before the inclosure.”
With these cases in our minds, we turn to others in which burgesses as such occupy land in severalty. The constitution of the corporation of Berwick1 was democratic. There was no “select body”; but the whole corporation, consisting of the mayor, the four bailiffs and the other burgesses, assembled in guild managed the affairs of the corporation, made bye-laws and disposed of property in the same way as was generally done in other places by the common council. The number of burgesses was indefinite; men became entitled to be burgesses (1) by birth, (2) by servitude, and (3) by grant from the corporation. “There is a large tract of land lying near the town, which was granted to the corporation by charter 2 James I. The First Portion of this land consists of several farms, which are demised to tenants by the mayor, bailiffs and burgesses, the rent being reserved to the said mayor, bailiffs and burgesses, or their treasurer for the time being, and collected by him. The rent together with the proceeds of other property now forms a separate fund, out of which the salaries of the officers and other corporate expenses, are defrayed. These farms are called Treasurer's Farms. The Second Portion is subdivided into several parcels varying in quantities from an acre and a quarter to two acres and a half, and in value from £1. 13s. 9d. to £9 per annum. These are called meadows, and at an annual meeting of the burgesses, called a meadow-guild, are distributed as they become vacant by the death or nonresidence of the last occupiers (or in case of widows, by subsequent marriage of the last occupiers), among the senior resident burgesses, and widows of burgesses, who succeed to the rights of their husbands as to meadows and stints, though the charter has no provision in behalf of the widows; the most ancient resident burgess is entitled to choose the most valuable vacant meadow, and so on in succession down to the youngest, till the number of vacant meadows is exhausted. The number of these meadows is twenty-four. The burgesses may either occupy these meadows themselves, or let them to tenants, reserving rents to themselves. In practice they are generally let. The lands forming the Third Portion were, up to the year 1761, open fields, upon which each burgess was entitled to a certain right of pasture, but at that period they were inclosed, and have ever since been let, in guild, as farms to tenants for various terms of years, and are now demised by leases under the corporation seal, generally in farms of forty acres, or thereabouts. The rent of each farm is divided into a certain number of equal portions, generally eleven, but in a few instances twenty-two. At another annual meeting, called a Stint-guild, a portion is allotted upon a specific farm to each resident burgess or burgess's widow, or to as many of these as there are vacant portions. These portions are called stints, and like the meadows vary in value from £8 to £9 per annum. The number of these stints was increased about thirty years ago, by appropriating another portion of land to that purpose. The number of stints thus added is forty-four, making the total amount 561. The more ancient burgesses are in like manner entitled to a preference, as the more valuable stints become vacant, and the younger burgesses succeed to them, as vacancies occur by the death, removal, or promotion of their seniors. The portions of the rents called stints are paid annually by the treasurer of the corporation to the burgesses who are entitled to them. The burgesses in guild have, by their charter, a power of making byelaws for the good rule and government of the corporation, and for preserving, governing, disposing, letting and demising of their lands, &c. In the exercise of this right the burgesses assembled in guilds make byelaws to regulate the enjoyment of the meadows and stints, and have prescribed the conditions of husbandry under which meadows and stint lands may be broken up, and converted into tillage, and (in the case of meadows) the terms for which they may be let by the individual burgesses to whom they are allotted. They also decide upon the title of those who claim to enjoy meadows and stints, according to their bye-laws; and instances occur upon their records, of forfeitures both of meadows and stints, either absolute or for limited periods, inflicted by the burgesses in guild, for infraction of bye-laws, or other gross misconduct. But unless there be such forfeiture, or the party either become non-resident or relinquish his stint or meadow by choosing one of more value, he may remain in the enjoyment of the stint or meadow which has at the first been allotted to him, for the term of his life. Some burgesses are permitted to enjoy one stint only, others two stints, and others again one meadow and one stint.”
At Nottingham1 “the burgesses are entitled to a considerable right of pasture.... They are also entitled, if resident, to take in order of seniority what is called a burgess-part, that is, an allotment of land in the fields or meadows at a small ground rent payable to the corporation, or a yearly sum in lieu of the allotment, at the discretion of the corporation. These burgess-parts are 254 in number. They are unequal in value and form, in fact, a sort of ‘lottery.’...The rental of the proper estates of the corporation, free from any specific trust, and commonly called the Chamber Estate, for the year 1831–2 [amounted to more than £5000 and included a sum of £144. 18s. 6d., being the rents of burgess-parts]... The number of burgess-parts on the Chamber Estate amounts at present to 112.... They are either allotments of land in the fields or meadows, for which a small groundrent, charged without reference to the actual value of the burgess-part, is paid to the corporation; or a yearly sum in lieu of the allotment, at the discretion of the corporation. These allotments are not considered as freeholds; but the common hall exercise the right of resuming them if they think proper during the life of the burgess. Resumptions of the burgess-parts have been frequent in late years. Instances have formerly occurred in which the parts were resumed without any money payment in lieu being made to the burgess. At present, a compensation in money is always given in the shape of an annual payment, which is fixed at rather more than the burgess could have made out of the land. These resumptions have taken place when the corporation were enabled to make more of the land than the burgesses could do, and have proved beneficial to the corporation estate.”
Now that arrangements of this kind may really be pretty modern, we get various hints. I will speak more especially of the case of Stafford1 . The corporation are possessed of a piece of land called the Coton Field, containing about 192 acres. It appears that in ancient times the burgesses of Stafford claimed a right of common over three open fields, composing the manor of Coton, called Coton Field, Broad Field and Kingston-hill Field; but the claim was disputed by the owners of the Coton manor. In 1705 the differences between them and the corporation were arranged in the following manner. The corporation gave up all claim to the right of common over Broad Field and Kingston-hill Field, and William Fowler, the owner of the manor, in consideration thereof demised to trustees the Coton Field, for ninety-nine years, in trust, to pay him a yearly rent of £12, and then in trust for the mayor and burgesses, subject to the payment by the latter of £28 a year, for the support of the poor in the almshouse.... The Coton Field is divided into portions containing each an acre, each of which is allotted to a burgess. Small rents, varying from four to six shillings are received from the occupiers, each of whom also pays, on his first entrance, 5s. on a tillage acre, and 10s. on any other acre. The gift of these acres is vested in the mayor for the time being. They are by no means confined to the poorer order of burgesses. Each of the members of the common council [mayor, ten aldermen and ten capital burgesses] invariably receive an acre; formerly they each held two, but of late years they have given up the one.”
I can not but think that had the manner in which Coton Field was occupied in 1835 been brought to the notice of some of our “survivalists,” they would have pronounced it to be an interesting relic of archaic times. But the archaic times of which it tells are in truth the archaic times of Queen Anne or some king of that primeval dynasty, the illustrious house of Hanover. My reason for thinking that it would have been attributed to a much earlier age is to be found in what has been written concerning the borough of Malmesbury, more especially in what has been written about it by one to whom we all owe many thanks for his courageous and ingenious speculations, I mean Mr Gomme1 .
The facts are in brief these2 :—In Malmesbury, as in many other boroughs, the titles to freedom are birth and marriage; that is to say, a son or a son-in-law of a free burgess is entitled “to take out his freedom.” On so doing he becomes one of a class known as “the commoners.” Before 1832 this would have given him a right to turn out beasts on certain unenclosed land. But in that year by Act of Parliament this land was enclosed, and dealt with in a somewhat elaborate fashion. Fifty acres of it were given to trustees, who were to apply the income in maintaining roads, fences, and the like. The rest was cut up into 280 allotments, the average size of which is an acre and a quarter; but though they vary in size their value is approximately equal, since it was arranged that the size of the allotments should vary inversely with their proximity to the town, the smaller pieces being those nearest to the town. When one becomes a freeman of Malmesbury one becomes entitled to succeed in order of seniority to one of these 280 plots; until one gets a plot one receives 8s. a year out of the income of the fifty acres held by the trustees. Now all this arrangement, primitive though it may seem to us, is quite new, the result of an Act of Parliament coeval with the Reform Act; before that Act such of the freemen of Malmesbury as were but “commoners” had, as their name implies, rights of common and no more.
But there is an older arrangement and there are other lands to be considered. A freeman may aspire to be a “landholder.” The landholders are a body of fifty-five (formerly there were but forty-eight) persons, each of whom holds a several plot; these plots vary in size; together they make up about forty acres; they are divided into six “hundreds”; the number of plots in the hundred varies. The freeman who wishes for a plot puts down his name at the bottom of a list; a list of applicants is kept for each hundred; he can put his name on one of these lists or on several of them; if at the same meeting of the corporation several persons wish to enter their names on the same list, then they cast lots for priority. When a vacancy occurs in one of the hundreds owing to the death of a “landholder,” the applicant whose name stands highest on the list of that hundred gets the vacant plot, and if his name is on the list of a second hundred it is struck off that second list, for he is not to have two plots. So much as to the “landholders.” Above them in rank stand the twenty-four “assistant burgesses,” each of whom has an acre in addition to his “landholder's part” and his “commoner's part.” Vacancies in this body of twenty-four assistant burgesses are filled from among the “landholders” by co-optation1 ; “in practice they are self-elected, though it is said that the aldermen and capital burgesses have a right to interfere.” Then above the twenty-four stand the twelve “capital burgesses,” who are elected by co-optation. On becoming a capital burgess one gives up one's “assistant burgess's part” and one's “landholder's part,” but one retains the “commoner's part” and becomes entitled to a “burgess's part.” These “burgess's parts” vary in size from five to sixteen acres. There are but twelve of these, and as there are thirteen capital burgesses, including the aldermen, the junior capital burgess for the time being has to do without a part, and instead thereof receives a small sum of money; but when another vacancy occurs he takes the vacant part. This he keeps, be it large or small, though other vacancies subsequently occur, but it is said that in the past there might be a general shifting of parts among the capital burgesses when one of the plots fell vacant. Then every year the capital burgesses elect an alderman (generally the aldermanship goes in rotation among them in order of seniority), and the alderman for the time being, in addition to his “burgess's part,” enjoys a plot of five acres, known as “the alderman's kitchen”; out of the profits of it he is expected to provide a feast. The corporation also holds thirty-nine small leasehold properties, which are said to be vested in the capital burgesses and alderman; they are let at quit rents, at about £1 each, upon premiums which are paid to the alderman and capital burgesses. The various allotments lie together without fences or ditches between them; each man grows what he pleases, “wheat and potatoes and beans, and all sorts of things.” “Very like a parish allotment?” “Yes, something of everything.”
Very curious all this is, but I do not think that we have any warrant for supposing that any part of this elaborate system of allotment is of very great antiquity. When Domesday Book was made the burgesses of Malmesbury, as was often the case, were divided between the king and other lords, but most of them held of the king1 . Then John granted the borough in fee farm to the Abbot of Malmesbury2 , and the abbey thenceforth drew a considerable revenue of burgage rents3 . In the thirteenth century the burgesses of Malmesbury of the Merchant Gild held the heath known as “Portmaneshethe,” and granted part of it to the abbot4 , but that they held any arable land by any communal title we do not know. With magnificent impudence they forged a charter whereby King Æthelstan, in consideration of their services against the Danes, granted them five hides of heath near his vill of Norton, by the counsel of Master Wolsinus his Chancellor and Odo his Treasurer1 . To make free with Æthelstan's name was becoming fashionable in the boroughs: had not the men of Beverley, of Axbridge, of Barnstaple, charters from the same illustrious monarch2 ? Of this charter the men of Malmesbury procured a confirmation from Richard II, and another from Henry IV3 . It is amazing that the king's chancery should have been deceived by this extravagantly clumsy imposture. Other royal charters, so far as I can learn, they had none until they obtained an elaborate instrument from Charles I and another from William III4 . I am not disputing their title to the heath. Very probably they did but forge in support of ancient usage and prescriptive right. But as to the system of arable allotments we may well doubt whether any part of it belongs to the middle ages. In Charles I's day there was, and “from time immemorial” had been, a class of burgesses known as the “landholders.” In William III's day the aldermen and capital burgesses were, and “for time immemorial” had been, holding certain tenements apart from the lands held by the burgesses, and to confirm their title a second corporation, to be called “The Alderman and Capital Burgesses,” was erected by the side of the old corporation, known as “The Alderman and Burgesses,” and was provided with a seal of its own. But we know what “from time immemorial” means in such a context. Why should not what happened in 1832 have happened more than once in earlier centuries? The burgesses have been using land as pasture ground, and somehow or another, by ancient or modern title, by purchase or prescription, the corporation which they form has become—or at all events they think that it has become—the owner of the ground. They enclose part of it and invent a scheme (even in 1832 such schemes could be invented) for providing alderman, capital burgesses, assistant burgesses, ordinary burgesses, with cultivable allotments. My own belief is that were the pressure of the Municipal Corporations Act removed, and had our borough corporations nowadays as few members as they had sixty years ago, such schemes would be very fashionable at the present moment, and were I a burgess, and were the choice given to me of receiving my “dividend” in the form of money, or in the form of pasture rights, or in the form of a small “severalty,” I for my part should choose a several close. And then if there were not enough land to provide for all the burgesses without reducing each plot to an unprofitably small size, recourse would be had to some plan of rotation, or perhaps to the “archaic” drawing of lots.
Then to my eyes the scheme that came down into modern times at Malmesbury does not look very ancient; it speaks to us of the last of the middle ages or of the Tudor time, for it speaks to us of an elaborately differentiated corporation, a constitution in which class rises above class, a tripartite or quadripartite corporation. Now I think that those who have made a study of our boroughs will bear me out if I say that this will hardly be as old as the thirteenth century. In that age many boroughs have as their governing body (under the mayor or the bailiffs) a body of twelve “law-men,” twelve “capital port-men,” twelve “chief burgesses,” or the like. Such a body as this may in some cases be very ancient, though in others we can actually see its birth; but the appearance of a second and subordinate class of ruling burgesses is characteristic of a later time. Some boroughs, even great and opulent boroughs, never get beyond the first stage in the evolution of a governing body; to the end they have but a mayor and twelve aldermen. Most boroughs go further than this; below the twelve they develop a twenty-four (other numbers are sometimes found, but this duodecimal system is very common); below the twelve or twenty-four aldermen will appear the twenty-four or forty-eight common councillors, or perhaps there will be twelve capital burgesses and twenty-four assistant burgesses, or again these bodies will be known simply as “The Twelve” and “The Twenty-Four,” or “The Twenty-Four” and “The Forty-Eight1 .” Occasionally, though this is much rarer, there are three classes: thus at Derby, nine aldermen, fourteen brethren, fourteen capital burgesses; at Lancaster seven aldermen, twelve capital burgesses, twelve common councillors; at York twelve aldermen, a body called the Twenty-Four, and seventy-two common councilmen; at Bury (to take a smaller town) six assistants, twelve capital burgesses, twenty-four burgesses of the common council. Now on the whole we may safely say that the more complex the ruling body, the later is its constitution—later that is according to the normal order of events. Judged by this standard the constitution of Malmesbury, with its alderman, capital burgesses, assistant burgesses, landowners and commoners, is a modern constitution, and those who regard it as of great antiquity should admit that the burden of the proof lies upon them. There is nothing in the charters of Richard II and Henry IV, nothing in that wondrous document the forged charter of Æthelstan, to prove or even to suggest that it existed in the fourteenth century. When asked to call it or any part or trait of it prehistoric, I feel as if I were being told that Henry VII's chapel at Westminster was the work of “neo-lithic man1 .”
I am not contending that we must read this Malmesbury inscription as A[iken] D[rum's] L[ang] L[adle], but certainly there seems to me to be an almost infinite number of modes in which it may be deciphered without our being compelled to refer it to the age of Agricola. There are many reasons why the Monkbarns who is digging in an English borough should be careful to have an Edie by his side, or, still better, be his own Edie. In the first place, as I have been trying to explain, arrangements which may look to us very quaint—quaint because the number of landowning boroughs will not be very large—can in quite modern times be the natural outcome of the fact that the borough owns land while the burgesses for the time being are entitled to get profit or enjoyment out of that land. In the second place, our English boroughs have been exercising for a long time past not merely a considerable power of regulating by express bye-laws the use of their proprietary rights, but also (and here lies the snare for the archaeologist) a large and indefinite power of declaring their own customs, of making the old look new and the new look old, of ascribing to time immemorial—even to the reign of King Æthelstan or, for the matter of that, King Arthur—arrangements which have existed for but eighty years or less. In the third place, whatever may be the case in a court of law, in a court of history the borough that would trace back its ownership of land even into the thirteenth century, should, so I think, be called upon to prove its assertion. This I say because in very many instances we know that a borough's title to its land is not so old as that century, and because in the voluminous records which bear on the manner in which land was owned in that century, we can, if I am not much mistaken, read but very little of land being owned by communitates. Lastly, when we are speaking of the boroughs a leap from any century later than the thirteenth to any much earlier age is the most hazardous of all leaps, for the time which is thus skipped is, or at all events seems to me, the time when Englishmen are gradually and painfully, under the teaching of canonists and civilians, not without many a slip and blunder, learning to frame and use a new idea, that of the universitas, the persona ficta, learning (even Bracton could hardly do this) to distinguish between res civitatis and res omnium civium—a grand intellectual achievement comparable to the discovery of the differential calculus. I am not saying that until that achievement had been performed an ownership of land that might in some sort be called a communal ownership was impossible (far from it), but I do say that inferences drawn from an age when the borough “community” is a definite person, quite distinct from the mass of men who are the burgesses for the time being, to an age when this distinction was hardly, if at all, perceived, are perilous inferences1 .
Municipal Corporations Report, 1835, vol. IV. p. 2598.
Report of 1880, p. 15, Evidence, p. 503.
Municipal Corporations Report, 1880, Minutes of Evidence, pp. 362–8.
Report of 1835, vol. III. p. 1483.
Report of 1835, vol. III. p. 1459.
Ibid. p. 1493.
Report of 1835, vol. III. p. 1745.
Report of 1835, vol. III. p. 1597.
Report of 1835, vol. III. p. 1435.
Report of 1835, vol. III. pp. 1993–7.
Report of 1835, vol, III. p. 2028.
Gomme, Village Community, p. 187.
Municipal Corporations Commission, 1880, Report, p. 73, Evidence, pp. 127, 292, 831.
On pp. 74, 75 in their Report the Commissioners make two inconsistent statements about this. In one place they speak as though the assistant burgesses were a self-elected body, in another they speak as though the landholders became assistant burgesses in order of seniority. It is clear, however, from the evidence that the former statement is the more correct; see Questions, 5396–5400, 6286–6300, 6495–6500.
D. B. I. 64 b.
Rot. Cart. I. 213.
Registr. Malmesb. I. 117.
Ibid. II. 150–5.
Kemble, Cod. Dipl. No. 1128 (vol. 5, p. 251).
For Beverley see Municipal Corporations Report of 1835, p. 1453; for Axbridge, ibid. 1091; for Barnstaple, Hallam, Middle Ages (ed. 1837), vol. III. p. 46.
Charter Roll, 12 Henry IV (2 July), memb. I.
Patent Roll, II Car. I (24 July) part 30; Patent Roll, 8 Will. III (14 Nov.) part I.
Thus at Beccles the Twelve and the Twenty-Four; at Salisbury the Twenty-Four and the Forty-Eight.
Mr Gomme supposes (pp. 197–8) that the 280 commoners and the 24 assistant burgesses are relatively modern, so that “we have left as representatives of the archaic tribal constitution of Malmesbury the forty-eights and the thirteen.” I cannot myself see any proof or probability that the forty-eight “landowners” are older than the twenty-four “assistant burgesses”; nor can I follow Mr Gomme in his argument that the commoners are a new class, a class that has come into existence since 1685, for it seems to flatly contradict the evidence that he has himself adduced on p. 188. Nor can I follow him in treating as “archaic” a certain rhyming formula about Ætheistan, which the burgesses are said to repeat when the plots of land are transferred, for even if we consent to call Æthelstan “archaic” we can hardly do the same for an English verse that rhymes. The one trait of the Malmesbury constitution that seems to me very rare is the division of the burgesses into six “hundreds.”
I cannot follow Mr Gomme in his account of the Chippenham case; for one thing because he refers (p. 180) to Chippenham in Wiltshire a passage in the Hundred Rolls (II. 506) that belongs to the less known Chippenham in Cambridgeshire. This triumph over space seems to me hardly bolder than some of his triumphs over time.