The Online Library of Liberty

A project of Liberty Fund, Inc.

• The Tribal System In Wales 1
• The Murder of Henry Clement 1
• Two Chartularies of the Priory of St Peter At Bath 1
• The History of Marriage, Jewish and Christian 1
• The Origin of the Borough 1
• A Song On the Death of Simon De Montfort 1
• Wyclif On English and Roman Law 1
• “execrabilis” In the Common Pleas 1
• Canon Law 1
• Records of the Honourable Society of Lincoln’s Inn 1
• Magistri Vacarii Summa De Matrimonio 1
• Land-holding In Mediaeval Towns 1
• An Unpublished “revocatio” of Henry Ii 1
• Canon Mac Coll’s New Convocation 1
• Canon Law In England 1
• Elizabethan Gleanings 1
• The Corporation Sole 1
• The Crown As Corporation 1
• The Unincorporate Body 1
• The Body Politic 1
• Moral Personality and Legal Personality 1
• Trust and Corporation 1
• The Teaching of History 1
• Law At the Universities 1
• A Survey of the Century 1
• Lincolnshire Court Rolls and Yorkshire Inquisitions 1
• The Laws of the Anglo-saxons 1
• The Making of the German Civil Code 1
• State Trials of the Reign of Edward I 1
• William Stubbs, Bishop of Oxford 1
• Lord Acton 1
• Sir Leslie Stephen 1
• Henry Sidgwick 1
• Mary Bateson 1

LAND-HOLDING IN MEDIAEVAL TOWNS1

L’étude de la propriété urbaine au moyen âge a relativement peu attiré l’attention des érudits. With this sentence M. des Marez begins a very interesting book, and there is truth in these words. A good many years have gone by since Arnold published his History of Ownership in the German Towns. From that time onwards almost every one who has taken part in the controversies which have raged around urban institutions has had something to say about land ownership and land tenure, and we have all learnt that the existence of a form of tenure peculiar to the towns (die städtische Erbleihe, Leihe zu Stadtrecht) is one of the main facts that must be studied and explained. To Englishmen this should have come as an easy lesson, for a “burgage tenure” lies on the surface of our old and orthodox law books, and it cannot be said of us, as perhaps it might be said of some of our neighbours, that a juristic prejudice, demanding a sharp severance of matters of private from matters of public law, has had to be slowly surmounted. But, though not a little has been written on the continent touching the proprietary side of urban affairs, it seems very certain that much more must be written before the problem is solved, and that for a long time to come there will be ample room for books such as that which is now before us.

M. des Marez speaks of towns in general, but more particularly of the Flemish towns and most particularly of Gand. In so far as his book is a study of medieval Gand there can, I should suppose, be but one opinion about its interest or its value. His work culminates in a “Plan de la Condition Juridique du Sol de la Ville de Gand au Moyen Age,” a plan drawn on a large scale and so coloured that we can tell whether a particular house is held as a franc bien (Vrij Huus Vrij Erve) or by the tenure libre du droit urbain or by a tenure du droit domanial. We should have something comparable to this if some one drew a map of an English medieval borough, distinguishing the houses that pay a hawgafol, the houses, if any, which owe military service, the copyhold tenements, and so forth. The archives of Gand must be astonishingly rich in records of conveyances and leases, for they have enabled M. des Marez to perform such a feat of industry as has never yet been performed for any other town. It is very possible, however, that an equal wealth of materials may be found elsewhere, and that students will set to work upon it now that they can learn from this book that the task of making a map of the condition juridique of the soil of a borough need not end in pointless antiquarianism, but will certainly raise, even if it does not answer, questions that are of far-reaching importance in the history of institutions.

There is a great deal here that makes us wish for the day when comparative jurisprudence will be something better than a name. The coming of that day we have not hastened, but have retarded, by theories which flit from one end of the earth to another and mix up all the ages. The condition juridique of the soil of English and Flemish towns in the later middle ages would be a really good subject for comparative study. Gand was never very far from London. In the thirteenth century some of the most important people in Gand, some of the markans et bourgeois hyrritavles, knew England well. International aid should be possible, but difficulties stand in the way.

We see on the one hand so much economic similarity, and on the other so many legal differences, which, however, are differences between modes of thought rather than between practical rules. Though at the present moment we islanders might probably win most in the exchange, the gain would not lie all on one side. For example, M. des Marez, when speaking of those rentes which play a large part in the economy of the towns, finds it necessary to insist that there are points de contact entre le cens foncier et la rente. This truth might have been driven home by the remark that in England to this day the cens foncier is a rent, and that when an Englishman hears the word rent he thinks first and foremost not of what Frenchmen call a rente, but either of a cens foncier or of a loyer. So again in an interesting chapter we are told how le louage is developed in the towns. In the sixteenth century les termes de loyer, location, preneur, bailleur sont parfaitement définis. But at an earlier time there has, says our author, been a confused use of words which did not distinguish the louage from the accensement; for example, à Ypres le loyer s’appelle rente, et prendre à rente est synonyme de louer. Upon this we might remark that Englishmen stand to-day where the people of Ypres stood five centuries ago. Either a loyer is a rent, and to take at a rent is a good equivalent for louer, or else we ought to say that of louage we know nothing. But surely, the foreign inquirer might ask, you perceive a wide gulf between the preneur and the censitaire? A la différence du censitaire, qui jouit d’un droit réel, le preneur ne peut opposer au bailleur qu’un droit de créance. Our reply would be that long ago, and apparently at the persuasion of the Romanists, we tried that idea for a little while and then abandoned it. Since the middle of the thirteenth century we have denied that “sale breaks hire.” Our preneur (if indeed we know such a person) has a droit réel and not a mere droit de créance; the loyer that he pays is a rent and stands in one class of rents with the cens foncier. M. des Marez seems to hold that the prevalence of the principle so brekt koep hure, or Kauf bricht Miete, is not due to Roman influence. This is one of those questions about which the last word will hardly be said until the English is collated with the French and German evidence.

However, it is chiefly in the already prolonged discussion concerning the origin of the towns that this book means to leave its mark; and certainly it deserves consideration. M. des Marez, who seems to be following in the footsteps of M. Pirenne, to whom he dedicates his book, is against the derivation of the urban community from a rural or village community. In the typical case he sees neither an “old-free” (altfreie) community which slowly becomes urban, nor yet a servile or semi-servile group which gradually struggles into liberty and civic life, but a new community which from the first has been a community of mercatores and from the first has enjoyed a kind of land tenure such as was not to be found in the rustic world. He admits, indeed (or rather this is a main point in his theory), that the seat of this new community is very commonly to be found in close contiguity with the seat of some older and unfree community. The mercatores make their settlement close to the walls of some castle or some abbey, so that hard by the tract that they occupy there will be the homesteads and cottages of the count’s or the abbot’s villeins and serfs, who are living under a droit domanial or Hofrecht. At a later time, if this new “mercatorial” community is successful, it will extend its local limits; it will engulf and absorb the vieux bourg, and may take up into itself several different villages which have had different lords. Even then, however, old boundaries will often be visible if we make a map that shows the condition juridique of the soil. But if we look at what thus becomes the core of the great town, the centre from which this power of absorption radiates, then we have before us an area of which we may say that its first inhabitants were mercatores. At Gand, for example, this core is the Portus Gandensis, which is surrounded by the Lys and the Scheldt, and is thus divided from the vieux bourg where the counts of Flanders had a castle, and from the lands which were tilled by the villeins of the great abbey of St Peter. Now the first inhabitants of this Portus Gandensis were mercatores, and from the first the tenure by which they held their houses of the count of Flanders was markedly distinct from rural tenure.

That M. des Marez has fully proved his case even for Gand I cannot think. Beyond the mere word portus and an excellent commercial situation he seems to have very little evidence that the inhabitants of the port were mainly merchants until the year 1200 has been reached, and yet the supposed settlement seems to take place in the first half of the tenth century. An additional reason for hesitation I find in the instructive chapter which deals with the urban allmende. When the town of Gand has attained personality (lorsque la ville devient une personne juridique) it appears as the owner of a large piece of land, unimmense terrain, situate within the limits of the portus, and M. des Marez (rightly, so I should suppose) sees in this the allmende, or the upstal, as they said in Flanders, of the community which inhabited the portus. But, we may ask, is a great tract of common land part of the natural equipment of a community which has always been mercatorial? And then one piece of this tract has been called the cultura.

Suppose, however, that a story of this sort, a story of immigrant merchants, can be proved for this, that, and the other town; dare we make it typical? In the later middle ages the towns were very imitative; it is clear at times that English townfolk have been thinking of foreign models; also new towns are deliberately manufactured by farsighted lords. We can believe that something of the same kind went on in remoter times, when once an example had been set. But the theory that is now before us impels us to ask whence these immigrant merchants come, for we cannot go on indefinitely tracing them back from town to town. Without denying the existence of homeless traders who travelled in caravans, we may gravely doubt whether such persons were strong enough in numbers and wealth to obtain land from bishops and counts on peculiarly favourable terms and to found sedentary local communities of a new kind and an abnormally free kind.

And M. des Marez will have from the first a strong contrast between urban tenure and rural tenure. He argues, indeed, that the alleu urbain, which is found in the later middle ages (the Vrij Huus Vrij Erve of Gand, for example), has no connexion with the alleu of “the Frankish period.” He is not going to have in his town any of Arnold’s aboriginal Germanic freedom. The old alleu of the barbarian time disappears, or rather survives only in circles with which we have no concern. The new alleu urbain or franc bien of the towns is a censive whose cens has been remitted or redeemed. The characteristic phenomenon is not allodiality, but a heritable tenure which, while it yields rent (cens), is free (as we should say) from every other “incident” or “casualty,” free from reliefs, heriots, and everything of the kind; it is a pure “cash-nexus,” to borrow a phrase from Carlyle, between grantor and grantee. This tenure urbaine libre differs radically from the tenure du droit domanial, which is what you find in the open country.

Is it not possible that M. des Marez has been painting his rural background a little too dark? Outside the towns all is given over to the sway of le droit domanial, by which phrase he renders the German Hofrecht. What minimum of service or unfreedom this droit domanial implies he does not exactly tell us; he is not writing of the open country; but apparently we might render his doctrine into English by saying that outside the sphere of burgage there is nothing but villeinage. In England that statement would not be true, nor even approximately true, for the socage of the thirteenth century and the sokemen of the eleventh are not negligible quantities. Ultimately in England our tenure urbaine libre, our Leihe zu Stadtrecht, our burgage tenure, appears as a mere subordinate variety of that liberum socagium which is found in the open country, and to define the specific mark of this variety is by no means easy. Now it is probably true that in Flanders and some other parts of the mainland the towns exercised such a dominating influence over the general stream of legal and institutional history as could not be claimed for our English boroughs; but when he descends to detail M. des Marez seems to confess that between the tenure urbaine libre and the rural tenures there are mediating shades. For example, he admits that urban law does not absolutely exclude droits de mutation—that is to say, dues to be paid to the landlord when there is a change in the tenancy. Such dues are to be found, though only sporadically, even in the portus Gandensis. Then, again, it is allowed that the immigrant merchants could not in all cases obtain such good terms as were to be had in the island between the Scheldt and the Lys. A strong contrast is drawn between Gand and Arras: between the behaviour of a great lay lord, such as the count of Flanders, and that of a conservative abbot. The mercatores who come to Arras, and establish the novum burgum there, are settling on the land of St Vaast, and, though they do not become part of the servile familia Sancti Vedasti, still they have to submit to the abbot’s droit domanial, so that the establishment of the free urban tenure comes by degrees and after many struggles. Here, then, we see a gradual development. Cest dans cette terre de saint Vaast, enchaînée dans les liens du droit domanial, que nous verrons évolver la personne et le sol vers la liberté. But if a slow transitory process of this kind is possible, must we needs call in those colonising merchants to set it agoing? And, on the other hand, if at a very early time the count of Flanders was getting nothing from the people in the portus Gandensis (of which he was seigneur justicier) except a light rent (cens), which n’était en quelque sorte qu’une prestation récognitive de cette seigneurie, can we be sure that the soil has ever been his to do what he pleased with, and that he has not acquired a justiciary seigniory over an old group of landowners? Still it is an interesting theory, this theory of mercantile colonies, and I must stop far short of saying that it does not hold good in some of the towns of Flanders and other lands.

[1]English Historical Review, April, 1899.