|Subject:||Were towns sanctuaries for serfs?|
|Original source:||1, 2. British Library, Add. MS. 14252; 3. original charter, kept in the City of Lincoln Guildhall; 4. exists in numerous manuscripts (notably Lincoln's Inn Misc.3, Balliol College 350, Lambeth Palace Library 429); 5. exists in numerous manuscripts (notably Bodleian Library Digby 222 and Rawlinson C159, Lambeth Palace Library 92)|
|Transcription in:||1. Felix Liebermann, Die Gesetze der Angelsachsen, Halle: Max Niemeyer, 1903, vol.1, 491; 2. Mary Bateson, "A London Municipal Collection in the Reign of John", English Historical Review, vol.17 (1902), 714; 3. Historical Manuscripts Commission, Fourteenth report Appendix pt. 8, 2; 4. D.G. Hall, ed., The treatise on the laws and customs of the realm of England commonly called Glanvill, London: Thomas Nelson, 1965, 58; 5. Samuel Thorne, ed., Bracton on the Laws and Customs of England, Cambridge: Harvard University Press, 1976, vol.3, 85.|
|Date:||mid-12th to early 13th centuries|
[1. A purported law of the Conqueror]
If serfs reside without challenge for a year and a day in our cities, or in our walled towns, or in our castles, from that day they will effectively be free men and forever free from their bonds of servitude.
[2. A custom claimed by London]
If a law-abiding man comes into the city from outside and resides there for a year and a day without being claimed, he need not defend himself [thereafter] against a claimant but, if he wishes, may remain under the liberty of the city.
[3. A clause in Henry II's charter to Lincoln]
Should anyone reside in my city of Lincoln for a year and a day without being claimed by any claimant, and he is contributing towards the customary dues of the city, and the citizens can prove (by the customary legal process of the city) that a claimant was present in England but made no claim upon him, thereafter he may remain in my city of Lincoln, undisturbed as before, as my citizen, without legal challenge.
[4. Glanvill identifies a circumstance invalidating an accusation of servility]
If any villein resides undisturbed for a year and a day in any privileged town, to the point that he is accepted into its community (that is, gild) he is thereby freed from villeinage.
[5. Bracton gives grounds for countering an accusation of servility]
because resident in any privileged city or town, or on royal demesne, for a year and a day without being laid claim to.
Historiography | Historical context | Evidence of the privilege
Origins and transmission | Operation and limitations | Curtailment
The following text diverges from the normal style of Florilegium Urbanum. It originated as a draft for a paper I was invited to write for a "free soil" theme issue of the journal Slavery & Abolition, now published under the title "Urban Safe Havens for the Unfree in Medieval England: A Reconsideration" in Volume 32, Issue 3 (2011), pp.363-75. The draft proving too long for publication, since this subject has received almost no serious study (in regard to its applicability in England), I am presenting the full results of my research here. The published article can be accessed here.
The notion of Stadtluft macht frei ('town air makes free') that fugitives from servitude could win freedom by putting down roots within urban boundaries entered the historiographical mainstream through the work of historians of continental Europe. It was subsequently accepted as applicable to the English situation, by a number of nineteenth-century historians interested particularly in constitutional and legal history, on the basis of statements of the principle in some seigneurial charters of privileges (liberties) granted to boroughs and in medieval legal treatises.
Although noticed early in the century by Merewether and Stephens [fn.1], it was more the influential work of scholars such as Gross, Maitland, Vinogradoff, Stubbs, and Ballard at the opposite end of the century, and in the early years of the next, that gave authority to the idea the maxim had general applicability to English towns in the Angevin period. Gross although (based primarily on instances at Lynn and Andover of the exclusion of serfs from merchant guilds) he doubted the applicability in England explicitly made the connection between the continental and English situations, suggesting the principle more prevalent on the continent, and helped drive Stubbs to endorse the idea. [fn.2]. In his pioneering study of villeinage, Vinogradoff, writing at the same time as Gross, dealt with 'town air makes free' only in passing, considering it sufficiently well-known not to require further discussion, and citing as his principal authority the jurist Sir Edward Coke (whose own sources were the same treatises already mentioned). [fn.3] Ballard, following up on his analysis of the earlier instances of borough charters, was prepared to go so far as to declare that "what especially marked out the borough as the home of freedom was the privilege that a serf who resided there for a year and a day became a free man". [fn.4] In this he instances one preoccupation of nineteenth-century historians with demonstrating the ancient origins of individualized liberty. There was disagreement, however, over whether related provisions were imported from the continent, had their roots in Anglo-Saxon society, or resulted from the exercise of the prerogative of the English monarchy. [fn.5]
Not all historians accepted unreservedly the applicability of 'town air makes free' to medieval England. Henry Bennett's study of the peasantry included a chapter entitled "The Road to Freedom", though this work does not seem to have attracted the attention of urban historians (nor my own until some years after this paper was published). Yet even his more balanced look at the prospects of escape from servility was coloured by the opinion that "we shall find it difficult to overestimate the part played by the towns in aiding the steady emancipation of the peasants" and he viewed 'free air' as a widespread urban attribute. [fn.5a] Mary Bateson, particularly well-versed in English urban history, portrayed urban emancipation of villeins as a general principle, but allowed that "where the towns were fully populated, steps were taken to prevent such humble persons from taking up the borough franchise." [fn.5b] In looking at the London evidence, Thomas cautioned that the supposed liberating effect of urban residence for a year and day needed careful definition and that it "was held to make a villein into a free man, but not a freeman." [fn.6]. Mrs. Green, focusing on a period when attitudes were changing, allowed that the principle may not have been in effect in all towns and that residence by itself was not a sufficient guarantee of freedom, while even Gross was conscious that the English application seemed subject to limitations absent from continental expressions. [fn.7] Nonetheless, in making passing and generalized references to the matter, more recent histories have been content to portray it as universally applicable [fn.8], or to express reservation without any elucidation [fn.9].
Although 'town air makes free' is to some degree a construct of historians (and not without utility, as a concise epithet), we need not doubt that the underlying reality that those who were unfree might, under conditions to be considered below, by establishing themselves within the territorial boundaries of certain towns, effect a change in their status, or at least obtain greater protection from repossession by their masters applied in parts of medieval England and in some English colonies in Wales and Ireland. We should, however, doubt its universality, not only across time and space but also in terms of who could benefit from it.
An in-depth investigation of this topic cannot be attempted here, requiring as it does a careful comparative study of the legalistic language of the various primary sources, and a search for more case law, as well as comparison with the application of the principle, and perhaps with terminology used, in Germany, France and other countries of the continent. But, in the continued absence of any dedicated, detailed examination of its applicability in medieval England, this paper can aspire at least to identify the main sources of the evidence so far discovered, to consider possible mechanisms by which the principle may have been introduced and spread, and to identify some of the complexities and problems involved in the subject, not the least of which is the difficulty in establishing a confident chronological sequence of the key sources of information.
We should begin by reviewing some pertinent aspects of the social and constitutional contexts in which English expressions of the principle first appear, in the twelfth and thirteenth centuries, keeping in mind that several parties had a vested interest in the operation of the principle, besides of course serfs themselves: the great landowners who were, on the one hand, masters of serfs and, on the other, mesne lords of towns; the king, who was himself the lord of large numbers of manors and towns, as well as the chief protector of the interests and well-being of all members of the community of the realm, high or low; and the governing authorities, and more broadly the entire citizenry, of English towns.
In this paper the term 'serf' is used as a catch-all for those subject to some degree of servitude falling short, however, of what we today would consider slavery (in terms of the absolute ownership of one individual by another, in which the former has no legal recourse against the latter's demands or actions, however contrary to the former's best interests), although during the Middle Ages the distinction between slave and serf tended to be hazy. There was a spectrum of conditions between free and unfree absolutes, but even before the Conquest a proportion of the enslaved population were, for economic reasons, being converted to small land-holders or paid labourers. The new Norman overlords were not interested in fine distinctions (although they persisted to some extent), only in differentiating free or unfree, and seeing what profit they could extract from either; this was felt to require tying the unfree to the land, so that their persons became little more than appurtenances to be given or sold with that land. The transition from slavery to serfdom was furthered by the synod of Westminster in 1102, which condemned the slave-trade. Here we will not try to draw technical distinctions between terms such as serfs, villeins, naifs (nativi), and bondmen, although valid arguments have been put forward for making some distinctions in certain circumstances. [fn.10]. Medieval legal treatises might seek to differentiate individuals born in servitude and those who became unfree during their lifetimes, but often the terms were used interchangeably, and certainly it is not evident from the sources that 'town air makes free' was restricted to a particular social subset of the unfree.
It was partly due to the consolidation of England from several earlier kingdoms that different degrees of unfreedom could be found within society, with the relative proportion of the various categories changing from region to region, from manor to neighbouring manor, and even within communities. At the risk of over-generalizing, roughly half the number of manorial tenants were serfs and half freemen, but the shires of eastern England had a high proportion of free tenants, while those in the west seem to have had larger relative numbers in servitude. Complicating the picture further, changes took place over time, particularly after the Conquest brought about a change in the ruling class, and the new-comer lords of the land sought the flexibility to increase the revenues they could extract from the decentralized patch-work of estates they had taken over. The Norman-French seigneurs of many (but not all) manors pursued, in the twelfth and early thirteenth centuries, a trend towards substituting money rents for the rents in kind or labour services due from their subordinated tenants. On the other hand there is evidence, from the thirteenth and early fourteenth centuries, of the reverse, with some lords seeking to re-impose labour services on their tenants, to assure a force of cultivators through which they could better exploit their demesne lands to produce for the growing food markets, while at the same time widening the range of monetary exactions from those tenants. [fn.11]
Such changes were, naturally, designed to benefit the landlords at the expense of their tenants. It was in the interest of the former to associate servility not only with obligations such as labour services and the payment of fines for permission to undertake various activities, but with land tenure itself; many tenants who considered themselves free were increasingly being treated by their landlords as servile. For many, perhaps most, serfs conditions were worsening between the twelfth and fourteenth centuries. Although the Conquest furthered the gradual decline of slavery per se, the new Norman-French ruling class were inclined to view all their tenants as objects to be disposed of with the lands on which they resided, or to be subjected at will to increased, sometimes excessive, demands in services or various forms of taxation.
Serfs had few legal protections against oppressive or harmful treatment by their lords; if one attempted a civil suit against his lord, the latter countered with an 'exception of villeinage', which would bar the suit if he could prove the plaintiff his villein. Since anything serfs owned or earned belonged, in theory, to their lords, opportunities for purchase of manumission were reduced. Enterprising or industrious serfs had little scope to improve their lot and rid themselves of the back-breaking labour of agricultural work, whether done to suppport themselves or fulfill their feudal obligations; those who managed to accumulate some modest wealth in lands or goods either faced its dissipation to provide for their children, or had to encourage those children to seek a livelihood elsewhere. Even those who were not the worst affected, or saw some improvement in alleviation of labour duties, may have envisioned greener pastures in free-holdings in nearby villages, on the estates of less oppressive lords, or in towns thriving economically the last seeming to offer not simply self-determination but also a range of employment opportunities and a relatively assured food supply, albeit at the cost of living in increasingly crowded, polluted and insanitary environments. Despite this, the number of manumissions purchased by English serfs is relatively low, compared to those in France, say; whether this was because most were focused on making a go of their lives where they were, or because lords were reluctant to sell manumissions, remains a matter of debate among historicans.
Since the subordination of serfs could best be assured by keeping them bound to villein tenements, a definition of freedom came to be linked to independence of tenancy, whether the right to dispose of landed property or the right to depart from a manor. It was an important point in the law of villeinage that servility could only be maintained if serfs remained in the custody (physically or symbolically) of their lords; a lord who neglected custodial supervision stood at risk of being considered by the law as tacitly lending a measure of credence to any self-representation by a prolonged absentee as someone of free status. It was not unknown for a lord to keep chained up a villein who had ambitions of escape. For their lords, escapees meant not only a loss of labour services and pecuniary dues; there was also the loss of moveables, which fugitives would take with them if possible dispute over whether a serf's moveable goods and chattels belonged to the serf or the lord being one sore point in such relationships as well as the abandonment of cottages, which would fall into disrepair over the years when effort was being made to discover where fugitives had gone and to return them to their tenancies.
Although the majority of serfs probably spent most of their lives in their home villages, there was a striking degree of mobility, both short-term and long-term. There were a number of reasons why peasants, free or unfree, might leave their villages, and it was quite common for lords to have serfs who lived off-estate; for instance, around 1285 the Red Book of Hereford records that the small market town of Prestbury, Gloucestershire, belonging to the Bishop of Hereford, had 30 burgages, along with multi custumarii who had received permission from the bishop to live there. Other departees might conceivably be evictees or cottagers unable to maintain their homes in good repair, inheritors of property elsewhere, men or women in pursuit of better opportunities to earn a living (some of them, or their families, perhaps already having established urban connections through trading their produce), escapees from unsettled conditions or the weakened hold of a lord (such as during the anarchic times of the contest between Matilda and Stephen), offenders avoiding punishment, spouse-deserters, or evaders of seigneurial demands so heavy as to prevent them eking out a living. The last case is instanced from a Durham chronicler's tale [fn.12] concerning an oppressed serf encouraged by St. Cuthbert, in a vision, to flee to Lindisfarne, where the fugitive was given new land and the status of a civis. In other cases marriage to an outsider necessitated a licensed relocation; this geographical extension of family ties might later provide a destination and/or support for unlicensed departures of relatives. A search for employment was another likely major motivator, perhaps particularly applicable to those who had developed in their home village occupations or skills they felt might be more profitably marketable elsewhere, and to younger members of families who could not expect to be supported by the family holdings women going into domestic service being a well-known case. Indeed, it might be argued that young female immigrants became, during the Late Middle Ages, a mainstay of new blood refreshing urban society; yet we must note that texts related both to 'free air' privileges and to prosecution of naifty seem predicated on fugitives being male. Even allowing for a natural gender bias within medieval writing and for the use of masculine forms as generics, the cases mentioned below involving fugitives all relate to males. It may be that female serfs were less valued or prioritized, whether as sources of labour or revenue, by their lords, or perhaps less closely supervised, and their departures less likely to warrant documentation or remedial action. On the other hand, flight from servitude into the unknown, which might entail leaving behind family, property, and most large possessions, called either for desperation or for determination and may have been a resort appealing more to younger, unmarried men with no homestead and perhaps little prospect of inheriting much if they had numerous siblings.
We must think not just in terms of fugitives but also of itinerants, the latter condition perhaps often transitioning to the former. The legal treatise known to us as Bracton specifically mentions, as examples of serfs at risk of absenting themselves longer than permissible and so becoming fugitive, merchants and mercenarii. Thorne translated the latter as "soldiers" but, while not impossible it refer to peasants sent off to auxiliary military service or even seeking their fortune as mercenaries, it is rather more likely that wage-labourers is intended here, meaning those wandering the countryside looking for work. We know that villagers made periodic connections with towns and townsmen, not only by taking their own produce or livestock to market, but by acting as agents of their lords in that regard, as well as by seeking positions in domestic service.
Some towns were prepared to licence burgess trading privileges to visiting merchants; among the earliest (thirteenth century) records to survive from Ipswich, for example, are those of a special category of citizenship, called extrinsic or forensic burgess, granted to manorial lords of the region, so that their agents or tenants were exempted from toll on imports of goods grown on their own land and exports of goods for personal use. And in 1304 the burgesses of Totnes, as part of a broader settlement of disputes with the lord of the town, agreed henceforth not to grant temporary citizenship to itinerant merchants or other non-residents, so that the lord was deprived of tolls. [fn.13] Lords might even licence serfs to reside in towns for limited periods, probably to act as their commercial agents there; the 'free air' clause among Newcastle-upon-Tyne's privileges (see below) specifically excluded serfs who had such arrangements with their lords, while similar exclusions at Plympton and Cloyne, in the 1240s, applied to those serfs of the town's lord who were resident there. [fn.14]
Raftis has estimated that a thirteenth-century villager on Ramsey Abbey manors would need to travel as far as twenty to thirty miles perhaps a dozen times a year, to bring produce to market or pay rent to the landlord. [fn.15] His analysis of evidence of emigration from those estates identified 82 places to which they spread, far and near, but with towns the most favoured destination not just Ramsey itself but others in the region (Huntingdon, St. Ives, Godmanchester, Ely, and Lynn) and that perpetual magnet, London; while an inquisition in 1313 into those claimed as fugitive serfs belonging to the manor of Costeseye (Norfolk) indicated that several had established residences at Norwich, Cambridge, Ipswich, Bury St. Edmunds, and Oxford. [fn.16] Towns may have offered the advantage of a fugitive being harder to track down within a large population, but it was more likely the prospect of self-improvement and greater self-determination that created the allure. [fn.17] On the other hand, it could not have been easy for refugee serfs to establish themselves securely in towns unless they had a foot in the door, in the form of someone (e.g. personal or spousal family member, former neighbour, commercial connection, assured employer) there willing to act as their sponsor the Assize of Clarendon (1166) prohibiting townspeople from receiving into their households, on a long-term basis, outsiders not in frankpledge (open only to those of fixed abode), unless prepared to stand as their guarantors or brought with them the means and/or skills to establish themselves in some occupation or business. [fn.18] Some, if not most, fugitives particularly those without supporters at their destinations may have tried to hide their past, such as by changing their names; for instance, in a mid-fourteenth century court roll of the manor of Berden, Essex, it was presented that two men living outside the manor (it not being specified where), calling themselves John Noble and Nicholas Noble, were actually sons of Stephen Biggs and were therefore servile, so that the court ordered them apprehended. [fn.18a]
On the other hand, many fugitives may simply have hoped that distance would be a deterrent to reclamation attempts, even if manorial courts were able, as was often the case, to obtain some idea presumably from remaining tenants on the whereabouts of fugitives. The 1397-99 court roll of the Essex manor of Ingatestone includes a list of fugitives: a butcher who had gone to London, a skinner to Brentwood, a tanner to Coggeshall, one man to Billericay and his son to Eastcheap in London, others to Great Baddow and elsewhere. Although most of these places were not far from Ingatestone and were not privileged boroughs but at most market towns (and some not even that), the only fugitives who could be brought to heel by the time of the next court session were that at Billericay (which neighboured Ingatestone) and his son. The manorial court of Halesowen was similarly quite capable of compiling a list of serfs off-manor without licence (1293) and where they had taken up residence, but the manorial lord, the abbey of Hales, lacked the reach to do much about it. [fn.18b] The Halesowen fugitives had not gone terribly far (to Warwick, Newport in Shropshire, and to just outside Birmingham), but none had been so brazen as merely to move to the adjacent borough, established by the abbey at some point following acquisition of a market licence in 1220 and which Henry III had authorized them to endow with the privileges of Hereford; for the abbey only infrequently allowed its tenants to exchange their servitude for burgess status there, and resistance put up (1279-82) by the locals against labour services had been harshly suppressed by abbey-hired thugs. A royal commission of enquiry (1312) into absentee serfs from the manor (held of the king) of Costessey, just north-west of Norwich, determined that they were staying and in some cases had built themselves houses at Norwich, Ipswich, Bury St. Edmund's, Cambridge, Oxford, and a number of Norfolk and Cambridgeshire villages, most possessed of markets and one adjacent to Norwich [fn.18c]; evidently those who had not removed themselves far had some reason to feel safe, but what prompted each fugitive to select a particular location remains hidden to us.
Since it was impracticable to restrain mobility through physical enforcement of prohibitions, control was attempted through legalistic mechanisms. One of these was a periodic licensing fee, usually falling under the broader category known as chevage ('head-penny'), for permission to be or live off-estate for an extended period or permanently. The Billericay fugitive and his son mentioned above were permitted to continue living outside Ingatestone upon their agreement to pay chevage, in the amount of 28d. annually. Payment of chevage was accepted by the courts as evidence of servile status and, since the law came to define a fugitive not as one who left a lordship but who ceased to return periodically (an act symbolized, and probably in most cases effected, by payment of chevage), failure to renew the licence made one a fugitive. Chevage was a relatively inexpensive way to live away from manorial oversight, in conditions resembling freedom, and perhaps to occupy a tenement that also gave the aura of free status; manorial court rolls commonly evidence such arrangements. Payment of a marriage fine ('merchet') likewise effectively freed young women who moved off-manor to marry freemen, no future chevage being required in such cases. Yet chevage can hardly have been a satisfactory solution for all serfs seeking more autonomy in the conduct of their lives; it might allow them to live in towns, yet it withheld from them the advantages of urban life that the status of freeman offered (in terms of equality before the courts) and the economic advantages obtainable through legitimate acquisition of citizenship. Another mechanism was the provision of support from the king, to a lord attempting to retrieve an unlicensed absentee, in the form of a writ ordering local authorities to assist in restitution; under the Angevins these acquired a standardized form known as the writ of naifty. However, in the thirteenth century few of the actions calling on such writs concerned real fugitives from servility, as opposed to someone simply relocating to a nearby village. The biggest problem manorial lords faced seems to have been tenants attracted to live on another lord's estate, and the initial focus of developing law in this regard concerned the settlement of disputes between lords competing for the same human resources (whether as labourers or tenants), despite prohibitions since Anglo-Saxon times of any lord taking in the man of another. Recovery of fugitives became more problematic, and the law required further development, when a fugitive claimed not to be any man's serf, but free. [fn.19] We may suspect that, in practice, the time, trouble, and expense of a process to repossess a serf allowed many to flee with impunity, particularly if some form of protection was available at their destination.
The attraction of towns as a potential refuge for runaway serfs was partly the consequence of the twelfth and thirteenth centuries being a period when undeveloped land was exploited through an increase in the number and size of towns. Indeed, the scope of deliberate and, as we are increasingly coming to appreciate, carefully planned urbanization in those centuries is remarkable. Settlers were lured by putting in place relatively liberal conditions of overlordship, notably a special form of free tenure ( not burdened with labour services), reduced or capped fiscal obligations, and flexibility in accumulating and disposing of property, as well as occasional special incentives, such as exemption from taxation for a limited period during which a settler was expected to build a residence. This trend, aimed partly at encouraging productivity by enabling workers to retain a larger percentage of the surplus from their labour, must have appealed to dissatisfied or ambitious peasants. Serfs with a commercial bent or some artisanal skill must particularly have been attracted by the urban environment; any serf who took up a burgage tenement in a town, whether by seigneurial licence or illicitly, could at least expect to benefit by being exempt from toll when selling products or produce in the local market; and in some cases where the town's lord was in a position to grant it, or obtain the privilege in a royal charter freedom from toll in markets elsewhere. Exoneration from manorial labour services gave more time for self-serving work, while liberation from oversight facilitated the geographical mobility needed by traders.
Significant development in the urban sector of English society (as well as elsewhere in Europe, for much the same reasons) was underway well before twelfth century. From Domesday Book we can identify some 112 places that appear urban in character, while other towns are known to have been ignored by the survey. But the changes stemming from the Conquest, once the initial period of national subjugation gave way to thoughts of exploitation, brought fresh impetus because of the desire of the substituted landed elite to profit from its new-gotten estates. One way to do this was to set up towns on those estates, or to promote selected villages in advantageous locations (e.g. on communication and trade routes between established market centres) to borough status through grants of privileges such as those mentioned above. Even well-established and relatively sizable towns were not immune from this trend; for, in several, new quarters or suburbs were laid out, and privileged initially as if boroughs in their own right, with a view to attracting French colonists (as a base of support for the new Norman overlords).
Like the conversion of labour services to rents and the intensified cultivation of seigneurial demesne already mentioned, this town-founding activity, whether by plantation or promotion, rode the same wave of population growth, rising productivity, and increase in market demand, and was a form of economic initiative by the more enterprising members of the Norman landed elite, both lay founders and churchmen). Its aim was to stimulate commerce, concentrate it (and its administration) in market centres, draw to those centres settlers whose skills and aptitudes would help make the settlement economically more competitive in the region, and thereby develop new revenue streams for themselves, as borough lords, from burgage rents, fees and fines from the exercise of justice (in an environment with scope for a wider variety of civil disputes), market tolls, and other kinds of taxation. There was a commonality of interest between lords and settlers, at least until the latter became sufficiently self-aware and organized, communally, to pursue more independent control over local affairs.
By the time the craze for town-founding was petering out, around the opening of the fourteenth century, several hundred places with urban characteristics were on the English landscape, and personal freedom had become the hallmark of the burgess population. Immigration is recognized as having played an important role in building and (given the notorious tendency in towns towards failure of male heirs) maintaining urban populations. Most immigrants came from the countryside, as population growth in conjunction with improved agricultural practices released labour to seek out employment alternatives in locations where larger communities and market-hub functions fostered occupational diversity; but we rarely learn anything of their rural status. In the cases of some upgraded villages or extensions to existing towns, specific groups or entire communities of serfs were freed as part of the town-founding process. [fn.20]
On either side of the England-Wales border an area with ample land for development, but sparsely populated special circumstances were at play as the Norman invaders aimed to secure their hold in the region and protect it from the threat of incursion or uprising. On the English side existing towns were bolstered with new fortifications and by fostering commerce-based settlements around Norman castles. In addition to creating conditions attractive to settlement, there was a pro-active effort to introduce French settlers, whose support might be expected to be more dependable; some Flemings also accompanied Duke William into England, and Henry I and Henry II encouraged a wider spectrum to come, seeking asylum from an over-populated and storm-ravaged homeland. Many other recruits surely came from less far afield, perhaps often the neighbouring estates of the town-founding lord. On the Welsh side a similar process saw the efficacious town-fortification combinations established in an area where very little previous urbanization is evidenced, and populated by both English and Welsh. This appears to have been a very deliberate and systematic programme, initiated at the king's command by his most trusted supporters, such as William Fitz-Osbern, earl of Hereford, and Roger de Montgomery, earl of Shrewsbury, continued by their successors and other Marcher lords, and furthered by explicit charter grants that both formalized and publicized the benefits for immigrants. By the close of the thirteenth century there were just over a hundred urban settlements in Wales, although only a handful yet of any notable size or economic significance. [fn.21]
It is generally supposed that the 'free air' clause in borough charters was one of the incentives intended to attract new settlers to towns. Given the frontier exposure of towns in southern Wales and the Welsh Marches and limited resources of the Norman lords, it is conceivable that a particular concern was to increase the number of residents capable of garrisoning a town, or supporting the lord on campaign. Although charters granted to several Welsh fortified towns included the (otherwise rare) requirement that townsmen provide military support to their lord, there is no direct evidence to support this conjecture. We are safer to allow for a broader aim: of attracting settlers of various types, whether it be entrepreneurial traders, persons with some craft skill, manual or agricultural labourers, marriageable females, or even entire families perhaps with reduced concern, given the premium placed on manpower in frontier environments and a degree of competition between foundations, as to their social background.
The other contextual factor of significance to the 'free air' principle is, almost inevitably, the overall strengthening of centralized monarchical authority during the twelfth and thirteenth centuries. The king had his feet in two camps: on the one hand he was a landlord and serf-owner, seeking, as did his leading followers, to maximize revenues from his manorial estates and tenants; while on the other he had a sworn duty for the common good (that is, in the general public interest), to protect inferior members of society unable to defend themselves against arbitrary or unjust treatment by their superiors. Such protection was, however, in practice made available mainly to free men, who were potential resources, whether for manpower or money, and was not normally extended to the serfs of other lords; it is hardly surprising that, in the decades following the Conquest, the king was willing to assist his Norman supporters in reclaiming fugitive serfs and that royal justice existed to serve the chief vassals or the king's own interests. Lesser subjects who were free might have recourse to the king's court, but only in exceptional circumstances (such as where an offence against them involved an infringement of the king's peace), nor did that court sit in permanent session.
From the latter half of the twelfth century this began to change gradually. Rebellious magnates and, after the death of Henry I, the Anarchy, had shown that the monarchy needed a broader power-base, not feudal but national even allowing that, as historians increasingly recognize, the feudal aspects of the Anglo-Norman regime have in the past been overemphasized, and the strength of centralized government correspondingly underplayed. Kings became more conscious of the value of lesser subjects as a source of taxation and military support. The royal demesne had shrunk during, and before, the Anarchy, as lands (as well as royal rights) were traded in return for money, support, or other benefits; what remained was not generating levels of revenue expected. Part of the reform programme under Henry II, aimed at restoring and strengthening royal authority and power, was to administer the royal demesne more effectively. Another and related component, prompted both by the diminution of revenues and disorganization at the Exchequer, which administered royal finances, was the extension of taxation beyond the rural royal demesne to royal boroughs.
Angevin kings showed a strong interest in (controlled) urban development, with a view to tapping into the fiscal vitality of such centres of commerce and to integrating boroughs into a larger system of national administration, the monarchy long having had lordship or joint lordship, over a number of towns although it is debated whether such towns were strictly part of the royal demesne or a separate form of royal lordship, an uncertainty much earlier displayed by royal officials trying to fit urban returns into the organization of survey information in the feodary we know as the Domesday Book. Even when delegating administrative powers and revenues to borough authorities, in return for a fixed annual payment, the king reserved his right of taxation, and the same was true of royal demesne manors he farmed out, as well as of manors that had formerly been in the king's hand, known as ancient demesne. There was a consequent interest in the well-being and status of the tax-paying residents of such places. [fn.22]
At the same time, in his reforms related to law enforcement and military organization, Henry sought to expand his base of support from his feudal vassals to all free men and, to a degree, to serfs. The latter were starting to be seen as implicated in public duties and obligations directly, rather than just through the mediation of their lords, and in that regard on an equal footing to free men. [fn.23]
Much the same royal administrators developing improved demesne exploitation and new taxes were also tasked with greater centralization and standardization of the administration of justice. As defender of the peace, the king obviously had a key interest in a rule of law applied, as much as possible, in a consistent fashion across a realm that had inherited, from the various pre-Conquest territorial units and from manorialism, a plethora of regional and local customs, franchisal privileges, and judicial mechanisms. Part of this aspect of administrative reform was the regularized use of writs, juries, judicial circuits, and the king's court as a court of appeal for those who felt unable to get justice locally. Another part was to identify the various laws formulated during previous reigns, Norman and Anglo-Saxon, settle on those still required, and harmonize them with judicial practice and precedent, with a view to forging a legal system that could be applied and operated uniformly across the realm.
This effort gave rise to a series of guides to the developing common law, beginning with one we know under the name Glanvill [fn.24] , after one of Henry II's chief justices; he is now no longer believed to have been the author, although the textbook, which focused on procedure by writ, appears to have been written during his tenure, around 1188, and by some legal expert working at the court of the Exchequer. The next landmark, and the most comprehensive effort to rationalize English law, was Bracton [fn.25], another work initially named after a supposed author, one of Henry III's justices, but now felt to be the editor of an expanded version of a treatise originally produced, probably by multiple authors drawn from the legal assistants to chief justices, during the 1220s and '30s. Later phases in development of the law are represented in works also of uncertain authorship, notably: from the reign of Edward I, two Bracton-derived works written around the same time: Britton, perhaps commissioned by the king but not adding much that was new, and Fleta, possibly written by a judge or lawyer in royal service but not widely circulated, which aimed to re-order the arrangement of Bracton; and in the next reign the Mirror of Justices. [fn.26]
As common law became more complex over the course of the thirteenth century and serfs became active in areas theoretically incompatible with villeinage (e.g. making wills, serving on juries, and initiating civil suits), the distinction between free and unfree blurred, the latter stood more chance of pleading their cases before the king's courts, and there appeared loopholes that could assist them in asserting free status. [fn.27]
Most of Henry II's key administrative experiments, reforms, and innovations took place, as a fairly coherent programme, between the mid-1160s and mid-1180s, having been preceded by efforts to suppress lawlessness, and restore peace through strong rule, which included expeditions into Wales that, if unsuccessful from the perspective of conquest, strengthened the barrier of defensive centres along the frontier.
Evidence of the privilege
With all this as backdrop the degree of mobility possible for that segment of the population in servitude, the recruitment of settlers during a lively phase of town-founding, and the emergence of the common law and a central fount of justice paying some attention to the concerns of serfs we can proceed to examine some of the key statements of the 'town air makes free' principle. Probably the most influential type of source across the centuries has been compilations and codifications of law, in some cases combined with judicial precedent in order to create text-books for lawyers and judges. These punctuate the process of development of a uniform law, administered by the king's courts, applicable to all of free status; although within it emerged, as a by-product Hyams conjectures, [fn.28] and yet as a natural process of coming to terms with social realities, a law of villeinage that turned what was strictly only an administrative procedure, intended to facilitate the repossession of serfs by their lords, into a definition of status which provided grounds for alleged serfs to resist reclamation attempts.
The oldest of these compendia is the Leges Henrici Primi, [fn.29] which does seem to have been compiled in that reign, not incorporating (except in a very few cases) laws promulgated by Henry I, but rather such laws of his Norman, Saxon, and Danish predecessors as were assumed still to be valid. The copies made of this work during the next couple of centuries suggest it had some influence, perhaps particularly during the incipient phase of common law development; like the better-organized treatises that followed, it can be seen as part of the effort of the monarchy to establish primary position in the governmental sphere. The principle of 'town air makes free' is not in evidence. Lordless migrants vagrants or strangers were an issue of concern, but the extent of mobility cannot be gauged; mentions of fugitives seem to have criminals, not serfs, in mind, although it was defined as a crime to leave one's lord, and as justice to oblige a deserter to return. But a few of the laws in the digest, notably those indicating the scope of royal jurisdiction, might have provided some foundation for subsequent receptivity to such a principle, while others foreshadowed of the law of villeinage. If a lord on whose land a vagrant was found denied justice to a plaintiff against the vagrant, the matter was to be referred to the king. On the other hand, the king was also to act as legal protector of strangers, poor people, or those cast out of their homes, if they had no kin powerful enough to look after their interests. There were certain jurisdictional rights reserved to the king alone and effective over all men, including the maintenance of peace, and over fortifications comprising at least three walls (i.e. enclosures); this would appear to refer to the special protection or inviolability that pre-Conquest kings had long assigned to the burh, a term not itself used in the Leges but elsewhere addressed by laws applicable to groupings of places: town, church, or king's household in one instance, king's house, fortress, or castle in another, and in a third city, fortress, castle, or royal town. [fn.30] Such places had a sanctuary-like status.
Nominally earlier, and less ambitious, collections include those known as the Leges Edwardi Confessoris and the Leis Willelme. These are now considered spurious in terms of what they purport to be, as laws in force in the eleventh century, although it is felt that some contents of the latter at least may reflect genuine legal provisions or practices of that period or of the twelfth century, when the works were more likely to have been drawn up. More significantly, in the context of Henry II's efforts to re-establish the rule of law following the Anarchy, new editions of these digests were produced, sometimes expanded to pretend ancient precedent for what were actually innovations of Henry's administration. At some point there was inserted into a London copy of the Leis Willelme a clause stating (in a rather sweeping fashion) that a serf was freed by living for a year and a day in a city, borough, or walled town; but when this addition was made is not certain. [fn.31]
Glanvill and Bracton continued the process of at first resurrecting the law of the land (as well as rediscovering Roman law) and then modernizing it. Their work appeared so instrumental to later students of the law and legal history that Merewether and Stephens could insist that the 'town air' principle must derive from common law, not from any earlier borough privilege. However, Hyams argues, from the evidence of writs, that the common law action of naifty was already in existence a few years but no more at the time Glanvill was written. [fn.32]
Glanvill makes a clear statement on 'town air' [fn.33], while Bracton's is more tangential, [fn.34]. Neither expounds on the privilege; they are interested in it only as an argument to defeat an objection to a party's claim to legal rights, on the grounds that the party is a serf (exception of villeinage).
Both seem to agree that acquisition of freedom applied to those against whom no claim of naifty had previously been made (taking quiete as the equivalent of sine clamio), and are in accord in restricting the principle to towns (or cities) that were 'privileged', which is generally held to refer to boroughs whose lords had, explicitly or effectively, granted them by charter liber burgus status, and presumably (although this is less clear) those whose chartered liberties specifically included a 'free air' clause. Bracton, written a generation later, expands the coverage to the royal demesne, which would have extended it to a number of further towns lumped in with the rural demesne, while Glanvill has a second restriction: that not every serf resident in a privileged town is eligible, but only those who have been accepted as citizens, one prominent route for this at that time being acquisition of membership in the merchant guild (if one existed in a particular town a London version of the sentence omits the reference to guild, no such institution existing there). Glanvill's proviso has been the subject of debate, even to the point of suggesting it a thirteenth-century interpolation, but this seems unwarranted. [fn.35] Nonetheless both statements, thanks in large part to their brevity, leave unanswered questions.
Later treatises leave us little the wiser. Britton's restatement of the concept further develops the focus on royal jurisdiction by identifying the applicable liberating territories as royal demesne and royal towns or cities, adding (perhaps in reflection of court practice) that residence for the specified period required evidential support, and also making the interesting declaration, in the king's voice, that this privilege "was heretofore granted to us by common allowance for our profit and for improvement of our towns". [fn.36] Although the benefits are likely rooted in the truth, the statement appears retrospective justification. Fleta's coverage of the subject is more concise, further restricting territorial applicability to royal (rural) demesne and towns on royal demesne (a restriction less real than indicative of developing policy towards royal demesne), and shortening the residence period to a year. The Mirror of Justices deals with it even more cursorily, and goes along with the revised period given in Fleta. [fn.37]
It has been observed that Bracton's doctrines do not always jibe with legal practice evidenced by case law, and that their aim may have been, in some areas, not just to describe the law but to suggest reforms, hoping judges would adopt them and thereby establish precedents. [fn.38] Unfortunately, surprisingly few instances of case law related to serfs escaping to towns have yet been reported by researchers, relative to the number of flights historians tend to posit must have helped fuel urban immigration. Far less surprising is the absence of such matters from borough court records; we need not expect to find them there.
Borough records as a whole are disconcertingly quiet on the subject of 'town air makes free', with two classes of exception. First and foremost, borough charters granting liberties, which can be considered as much a product of external authorities as of towns or, rather, their spokesmen. The earlier examples of grants, where they have survived to us (or, indeed, have been reduced to written form at all), tend to be terse and focus on matters of central concern to the grantees. Furthermore, they can often be dated only imprecisely and, besides, historians suspect that some clauses in charters may only acknowledge and affirm, retrospectively, customs or privileges in effect at an earlier time. Secondarily, borough custumals, which can be even harder to pin down, not so much in terms of date of compilation, but of the date of origin of many of the local customs and ordinances they encompass, the oldest of which sometimes seem drawn from the provisions of charters (although, as noted, the reverse may alternatively be true).
What appears to be one of the earliest surviving forms of this privilege is in a charter of Henry II to Lincoln, probably dated to 1157. It gives a blanket confirmation of all liberties, customs, and laws had by the citizens in the time of his predecessors (including a merchant guild). Only two apparently new privileges were granted, the second being that given above (item 3). [fn.39] Ballard classed this with 'free air' clauses granted to other boroughs. The first privilege allowed security of tenure of any burgage property purchased, if no challenging claim was made to the property within a year and day. The second seems to pertain to one method of attaining what passed for citizenship at that period: sharing in the rights and responsibilities of the burgess community; although there is no reference to serfs or to freedom, the terminology implies that servile immigrants were the intended beneficiaries and that immunity from reclamation was part of the benefit.
Only slightly less ambiguous are grants to the Welsh towns of Pembroke (ca. 1154-89) , whose origins lie in a castle erected by Roger de Montgomery (1093), and Haverford West (ca.1189-1219), which developed around a castle founded by a Marcher lord of Flemish extraction. Each briefly states that any man, free or unfree and from whatever place of origin, in the Pembroke clause residing there unchallenged for a year and a day would thereafter be free. Given the lack of discrimination between serfs and those already of free status, it looks as though the intent may have been to grant burgess status rather than to free serfs although the difference in effect is moot or just possibly this was an imprecisely-worded version of the privilege protecting property tenure.
A chapter in Northampton's custumal has similar tenor and was implicitly for the benefit of serfs, allowing any who had a home there and was at lot and scot (contributory to the financial obligations of the burgess community) for the year and day, unchallenged, to remain a partaker of the borough liberties. Ballard accepted Bateson's tentative date of 1190, perhaps partly on the assumption a custumal might have been drawn up as a consequence of the first known charter grant to the town (1189), as is known to have happened at Ipswich. Although the oldest extant copy is said to have been copied from a version drafted by a man living tempore Edward I, what must be an even older version is approved by a list of townsmen who seem to be late twelfth century. [fn.40] Also similar is a version of the privilege from Nottingham, probably dating from the early part of Henry II's reign; this has it that no-one except the king (the town's lord) may have jurisdiction over anyone who passes the year and day there during peace-time, [fn.41] a unique specification with the close of the civil war still fresh in memory.
Another of the early expressions to have survived is found in a document that describes itself as a custumal of Newcastle-upon-Tyne, although it reads rather like a seigneurial charter. The relevant clause states that any villein who comes to live in the borough and stays for a year and a day, as if a burgess, might remain permanently, uless he or his lord had previously specified a limited duration for the stay. [fn.42] This assumes, as in Glanvill, that residence involves shouldering the responsibilities of a burgess. In contrast to Glanvill, it is not explicit whether after a year and a day the serf acquired free status, although being allowed to remain as a burgess had that implication, nor whether protection against reclamation extended beyond the town walls, although again we may infer that with reasonable confidence. Unfortunately, it is difficult to set a precise date to this text. One version's heading attributes the privileges to a grant of Henry I, and Ballard took that at face value, even though dubious justificatory claims that ancient tradition underpinned a present circumstance were common in the Middle Ages. Other evidence suggests the document was drafted in Henry II's reign, and in the 1180s the clause appears at Wearmouth, when the Bishop of Durham granted his town the customs in force at Newcastle. Furthermore, the several versions of the custumal that exist offer variant readings. Some variations, such as the use of villanus instead of rusticus need not detain us. But in one version it is specified that residence entails tenure of land (a third version adding house as well, while a fourth says purchase of a burgage), which is more significant, excluding as it would any fugitive serf merely sheltered by friends or relatives or employed as servant; these differences were likely later glossators' elucidation of borough practice in requiring anyone accorded burgess status to be a householder. A version of the Newcastle clause copied into the laws of certain Scottish towns also makes it explicit that the burgage-holder unclaimed for the year "shall be free, like a burgess, and enjoy the liberties of the borough" [fn.43], although this seems merely an elaboration of the original's sicut burgensis.
Another Newcastle, this time that under-Lyme, provides an instance known through the custumal of Preston a fourteenth-century edition but with contents harking back to the twelfth to which town Henry II granted (1179) the liberties and customs of that Newcastle, including that
"If any man's serf resides in the aforesaid town, and holds land there, and is in its gild and hanse, and at lot and scot with the burgesses of the same, for a year and a day, he cannot thereafter be reclaimed by his lord, but may stay there permanently, free." [fn.44]
This example has the form of most later 'free air' clauses, other early instances occurring in charters granted in 1215 to Hereford and Dunwich; this version was incorporated in Hereford's custumal (adopted by Montgomery, another foundation of Earl Roger), which claimed that its laws had been received from Henry II, although we should not rely on that. In 1227 this thus-phrased clause with burgo substituted for villa in most cases (which may or may not be significant) and, in a few, sine calumpnia added after the year and day term was included in charters to several English towns near the Welsh border. In the second half of the century it made an appearance in charters to over a dozen towns within Wales.
We encounter a few alternate phrasings during the thirteenth century, the essence being the same and the differences being possibly more of interpretation than substance. At Welshpool, for example, "remain there free" was expanded with the assurance that he "shall never be delivered to his lord", while at Porbuan (West Looe) it was replaced by "remain quit from all naifty and servitude". [fn.45] In the last, the 'free air' clause is said to be "according to the law of other free burgesses", [fn.46] but this is another type of claim we have to take with a pinch of salt, although by that date (ca.1243) the privilege might have become fairly widespread among towns. Bodmin's version, from the early years of Edward I, includes an element that suggests the year and day stay unclaimed was to be managed in full public view, not surreptitiously, a natural concern for evidentiality but perhaps something taken for granted in most towns, where life tended to be lived in public anyway and there were mechanisms for monitoring who was in residence.
The Newcastle/Preston case exemplifies another fairly common element, in terms of the context in which the 'free air' clause appears. The clause seems part of a deliberate grouping at the beginning of a charter, preceded by others granting the borough community the right to a merchant guild and prohibiting non-members from engaging in commerce. Another grouping that appears in several cases associates the 'free air' clause with those confirming secure tenure of a burgage property after unchallenged possession for a year and day, and permitting a burgess' liberties to be shared by any son resident in his household, while in Northampton's custumal the clause follows immediately after the section concerning tenurial matters. These connections suggest that the 'free air' privilege was seen as related to citizenship a matter to be further addressed below.
Origins and transmission
First we must consider by what possible mechanism, or mechanisms, the privilege may have originated and been disseminated in England. We may bypass the conjectured derivation from the ancient Germanic Lex Salica; although this was known to the author of the Leges Henrici Primi, its De Migrantibus provision was not one of those taken for use in the Leges, even though it might have had applicability to Fleming immigrants who encountered some hostility from residents of communities in which they settled. Rather, we must begin with the famous Bretollian theory, by which Mary Bateson attempted to reconstruct a hypothetical set of legal privileges of a small castle-town in Normandy, by identifying common elements among the privileges of twenty-six English, Welsh, Irish, and even Scottish towns which, evidentially or inferentially, she believed had received them in direct imitation of Breteuil, or indirectly by imitating one or other of the first wave of imitators. [fn.47]
As transfer agents she fingered primarily certain followers of Duke William and their kin who had obtained lordships following the Conquest and were subsequently involved in efforts to subjugate and colonize southern Wales. Some have already been mentioned: William Fitz-Osbern, to whom the Duke gave lordship first over Breteuil and later over Hereford, the two being divided, when Fitz-Osbern died in 1071, between his sons, although from 1122 to 1204 Breteuil was in the hands of the earls of Leicester; and Fitz-Osbern's kinsman Roger de Montgomery, who contributed to Shrewsbury's viability by improving its defences and was vigorous in exploiting the economic potential of his estates, and whose son Roger le Poitevin was lord of Preston up to 1100. Bateson suspected that the first two men imported Bretollian laws to serve and favour French colonies they established at Hereford and Shrewsbury, the laws later obtaining general applicability across each town, and that the third could have introduced Bretollian laws to Preston prior to it being granted the liberties of Newcastle. The putative laws of Breteuil included that giving freedom to immigrants who remained there unchallenged for a year and a day. That Breteuil was a frontier settlement of proven resilience in the face of adversity may have made it seem a good choice as a model for towns near the Welsh and Scottish borders as well as those in newly-conquered territories in Ireland. [fn.48]
This theory did not sit well with those historians who preferred to seek indigenous roots for English law; apart from downplaying it as pertinent only to a set of mostly insignificant towns, they also argued for revisions to certain of the customs Bateson felt were Bretollian. [fn.49] The details need not concern us here. What is important for us is the overall concept that laws originating in France, or (less likely) elsewhere on the continent, could have been imported into England during the century following the Conquest, whether at the initiative of the new overlords and town-founders, and/or perhaps at that of the colonists who followed them across. Much of the possible influence over English urban development of foreign immigrant families remains undiscovered; it has not been previously noticed, for instance, in regard to the well-known initiation of self-government at Ipswich (1200), that its probable spearheads, the town's first two bailiffs one of the surname de Beaumes (derived either from Bellême, a Norman town of which the Montgomeries were seigneurs, or from one of the Normandy locations that had Beaumais in its name) and the other with the patronymic Fitz Norman were brothers, their family continuing to produce borough leaders into the reign of Edward I.
Historians today accept that laws from Breteuil were borrowed by at least those boroughs whose charters explicitly acknowledge the debt, and plausibly by others through the intermediary example of towns such as Hereford, in the case particularly of Welsh towns as well as spreading north and south to a few westerly towns, and Newcastle-upon-Tyne in the case of north-eastern towns and newly-founded Scottish towns for which English and Flemish settlers were recruited. But, with generations passing between the advent of the Normans and the first written references to the 'town air' principle, it is hard to be certain precisely which rules were conscious imports into England, as opposed to, say, rational solutions to particular problems. It is also hard to be sure when rules may have been imported, although the Domesday entry for Rhuddlan states that by 1086 the burgesses were using some customs derived from Hereford and Breteuil. [fn.50] Nor should we assume that any town with a foreign lord was likely to receive the 'free air' privilege; There is no sign of it, for example, at Chester, despite its subjection to a Fleming earl following its involvement in the anti-Norman uprising of 1069-70 and later to Norman earls, as well as its importance as a base for expeditions into Wales.
As already indicated, the matter of one town borrowing legal customs from another is a broader mechanism than just Bretollian influence. When granting privileges to his townsmen, a lord might explicitly affiliate the beneficiary town with an existing privileged borough; or the borrowing of privileges, whether copied verbatim or adapted slightly, might be unattributed. This parent-daughter system existed outside of England and has long been recognized by English historians; Gross laid out tables showing multiple waves of connectivity, [fn.51] although his work was modified by Bretollian theory and by Ballard's analysis of borough charters. It was not necessarily a case of copying charters lock stock and barrel, however; selectivity and adaptation to local circumstances were involved, likely influenced by priority problems and needs of particular communities, inter-communal exchange of information facilitated by the commercial travels of leading townsmen, and by how much a particular grantor was willing to concede. Towns might also look at more than one model; for example, at Ruyton, where the 'free air' clause appears rather late (refounding charter of 1309), Breteuil, Hereford, and Shrewsbury are all credited as sources.
London a city that, even before the Conquest, had strong commercial relations with Normandy and elsewhere in France, and thereafter an influx of Norman families into its ruling class was, not surprisingly, paid much attention by other towns for inspiration or in aspiration. But, of those boroughs known or believed to have emulated it in some regards, only a few evidence the 'free air' clause in charters Lincoln, Northampton, and (less directly) Nottingham and none of these are among the clearer statements of the privilege. Furthermore, terms of London's charters were explicitly copied for application at Winchester and Oxford, which themselves became fairly influential mother towns, yet neither has left any evidence that the 'free air' privilege held good there.
Although London claimed the privilege, we have no incontrovertible evidence that it did so rightfully. An accusation of naifty laid in 1428 against two men who had lived in London for decades, along with a royal order to arrest the fugitives, were, on the grounds of being prejudicial to city customs and liberties, rebuffed by the sheriffs, describing the city as a kind of sanctuary for any of the king's subjects who sought protection there and wished to remain. This was followed up with a royal query (1429) concerning the custom in question. In response, the mayor quoted from a Book of Ancient Laws an extract reciting the usual claim that London had been founded by the Trojan fugitive Brutus, then going on to state that since before the time of Edward the Confessor it had been the custom, as it was at Troy, that any slave who entered the city and remained a year and a day without being reclaimed by his lord could remain permanently, "as in a hospice or King's Chamber". William I, the extract continued, had by charter to the city granted that any slave remaining unchallenged for that period in walled boroughs, castles or royal cities became free. [fn.52].
In this cocktail of fact and fable we seem to hear echoes of the apparently partially apocryphal collections of laws prepared in the twelfth century. A copy (ca.1210) of a version of William's laws supposedly granted to London includes the 'free air' clause given above (item 1) [fn.53] This probable invention (inserted among other decrees accepted as genuine) looks like the main foundation for the city's claim to the 'town air' privilege.
There was in fact a statement that historians consider of greater authenticity but which, being vaguer, may have appealed less to the city authorities (item 2 above). [fn.54] It appears in an apparently unofficial compilation of local customs and national laws, some authentic, some dubious, made in the early thirteenth century by a Londoner, using sources some of which are believed to date to the beginning of Stephen's reign. It is conceivable that this liberty was among, or a by-product of, concessions wrung from Stephen by the city in return for its support in his effort to claim the throne; or that it was fabricated in the context of the constitutional conflict of John's reign, when London once more sought to strengthen its position by supporting an opposing party the compilation probably being intended to document of the allies' claims about what were the established laws of the realm. The privilege did not appear on Henry I's charter of liberties to London, nor that of Henry II, who aimed to rein back on the city's gains under his predecessor, although both grant that citizens were not answerable to any charge except in the city courts, which could have encouraged a determination to assert the 'free air' principle. On the assumption that the second of our two London extracts was a 'town air' privilege, Bateson suspected legalis homo to be a scribal error for villanus. But, allowing that the statement has something of the ambiguity of those, noted above, from Lincoln, Pembroke, and Nottingham, it is unnecessary to resort to this suspicion; the term may simply be intended to convey 'law-abiding man' (that is, one who was neither outlawed nor had a reputation for illicit activity) or, if the sheriffs' response in 1428 paraphrases the ca.1135 statement, as could be argued, it might with license be interpreted as 'liege subject' (interestingly, 'subject' being a term sometimes used as a synonym for 'citizen').
A further factor in propagating the 'free air' privilege was the monarchy's efforts to reassert itself after the end of the Anarchy. The king had the same interest as other lords in seeing that his estates were amply peopled with cultivators, tenants, and tax-payers. He had a particular interest in those of free status, since legal reforms were giving free men greater opportunity to bring their cases into royal courts; spreading freedom, or allowing those claiming to be free to transfer their cases before those courts, would prospectively increase royal revenues from legal administration. As noted above, between the time of Glanvill and Bracton, the territory where freedom might be won was extended from privileged towns to the royal demesne. The latter comprised the lands held directly of the king, rather than by mesne lords, and off whose revenues the king was expected to live. In the context of the effort to generate more cash from demesne lands and of associated legal reforms well underway in the early thirteenth century, the territory on which the king could impose a tax was increased by developing the argument that all manors under the headings of Terra Regis in Domesday Book were ancient demesne, regardless of whether kings had subsequently granted them away. [fn.55]
Maitland felt that specially privileged villein tenants of royal demesne had a heritage stretching back to the Conquest, if not before, and consequently held that the 'free air' concept first appeared in England not from within boroughs, but through monarchical initiative that was extended to chartered boroughs as if they were part of his demesne. The current view, however, is that these were late twelfth and early thirteenth century developments. Royal boroughs came to be associated with royal demesne when the latter was treated in the same fashion as regards the king's tallage, from the 1160s. It was only after this that the 'free air ' privilege, along with others similar to those associated with burgage tenure, could be generalized across the royal demesne. [fn.56] Generalization of the rule can be dated to the early years of Henry III's reign. The writ of naifty had long incorporated the proviso that sheriffs not turn over to claimant lords any fugitive serfs found on royal demesne. In time a new writ emerged (the earliest surviving example being from 1238) staying an action in the county court if an alleged villein had been on royal demesne, unclaimed, for a year and a day; such cases were to be transferred to the king's court. As Hyams notes, "The idea was not to assist runaways, but to reserve the king's right to profit from them if he could." [fn.57] These developments in royal policy do not show any affect on the wording of the rule expressed in borough records, but may have made the rule more durable, and more exploitable for some serfs, given that it is hard to understand how any lord, other than the king, could uphold a rule that potentially overrode the feudal rights of other lords; perhaps this is why Egremont's mesne lord, in his borough foundation charter of 1202, excluded from application of the rule immigrants from the royal demesne.
The generalization of the 'free air' rule and concurrent emergence of the ancient demesne concept must have increased the number of urban or urbanizing settlements to which the rule applied; at least some royal towns may thereafter have considered an explicit grant redundant hence the visible drop-off in the number of charters incorporating the privilege. It is interesting that one of the few known records in which the principle was tested in the royal courts occurs in relation to New Salisbury, a relatively recent foundation (ca.1220), still in the process of attracting settlers, with its episcopal overlord firmly in control and any burgess aspirations expressed through a merchant guild. In 1248/49 Robert of Alwardbury was accused of being a serf who had escaped about 1210 before New Salisbury even existed, although perhaps it was to Old Sarum he fled first his claimant, John de Grimstede, producing some of Robert's kin to acknowledge their servile status. Robert did not deny he was an escaped serf but claimed that for the previous ten years he had been a permanent resident of New Salisbury, in scot and lot there and a free burgess of its merchant guild. He argued that it was the custom of the city that any gildsman remaining there a year and a day unchallenged was thereafter unclaimable; the basis for this must have been the royal charter of 1227 granting Salisbury the liberties of Winchester. A jury confirmed the defence and Robert's free status was recognized by the court. [fn.58a] Nonetheless, there remain not a few cities and towns where the 'free air' principle is simply not in evidence. Bearing in mind that although at the time of Domesday the great majority of towns were royal, by mid-thirteenth century the king had lordship over a little less than a third of England's towns, while the remainder were mediatized and some unchartered, [fn.58b] there may be various reasons for these seeming gaps.
Some lords likely had more practical experience with the benefits of the privilege, while others may have felt that encouraging fugitivism among their labourers in return for stimulating population growth in urban centres was not a desirable, or necessary, trade-off. Leicester, for example, made only slow progress in loosening the feudal grip of its earls. Ecclesiastical institutions were notably conservative seigneurs, although some were prepared to grant the privilege. Maybe we should see the rule as a tool to help deal with specific perceived situations, such as frontier protection and/or population displacement (English towns having had a long tradition as refuges in troubled times); Roger de Montgomery's estates were distributed among a dozen English shires, but only in those around the Welsh border do we find towns with the 'free air' privilege. On the other hand, the occasional filtering down of the privilege into liber burgus charters of even very small towns such as West Looe (ca.1230) probably owed much to a need to attract immigration to newly-planted or newly-promoted towns in a context of regional market competition.
Loss of early records will only very occasionally be an explanation. Chester's customs, recorded in unusual detail in Domesday Book, make no mention of the unfree (admittedly, perhaps because they generated no royal revenue), nor do the earls' grants of liberties. Although Exeter has left us an early example of a borough custumal (twelfth or early thirteenth century), its focus is on economic privileges, and we should not expect 'free air' to make an appearance. But at Ipswich, a royal town, we have not only the king's charter of 1200, but a custumal broad in scope and rich in detail, originally drafted in the same year, although the oldest version to come down to us was reconstructed and updated late in the thirteenth century; it has the opportunity to make a statement about 'free air', but does not. Nor is the privilege evidenced in any other of what are a fairly good set of borough records. The same could be said of Norwich (although we know of residents attempting to claim the privilege) and, indeed, evidence of the privilege is conspicuously absent in East Anglia as a whole, with the exception of Dunwich. With a relatively high degree of both freedom and urbanization in that region, no pressing demands of military defence (until a later period), and strong migration into towns otherwise evidenced, less need may have been felt for artificial stimulation of urban development.
Nor did Gloucester's fairly extensive charter of 1200 include the 'free air' privilege. Not so close to the frontier as Hereford and Shrewsbury, Gloucester remained a royal town. It did not receive an explicit grant of the privilege until 1227, and then probably only in connection with provisions to free itself from the jurisdiction of external authorities, such as the sheriff (the same might be said of Dunwich's case). Conceivably such exemptions something mesne lords could not grant may have been considered, in some towns, sufficient protection for fugitive serfs. If 'free air' seems to loom larger among smaller towns than those of greater importance, capable of winning a greater range of more valuable privileges and quasi-independent jurisdictions, it could have been because mesne lords had not the authority to grant much beyond those liberties associated with burgage tenure, of which 'free air' appears to be one. [fn.59]
A degree of uncertainty must have existed as to which towns could rightfully exercise the 'free air' privilege. Geoffrey of Monmouth's fiction that the ancient British Molmutine laws granted all cities privileges of sanctuary for runaways and criminals may have helped muddy the waters and perhaps particularly encouraged London's claim; Higden's Polychronicon reiterated the notion and linked the Molmutine laws to those in effect in the time of William the Conqueror. Grimsby, a royal borough, needed no explicit charter grant for Robert Grub, a long-time burgess, to successfully assert free status against a claim of naifty made by the Abbot of Selby in 1231. The bailiffs of Andover, however, were unsure what to do when William of Amesbury, an itinerant merchant who had married a townswoman, was laid claim to within a year of his marriage, for the alleged serf had previously resided in Wilton; the bailiffs wanted clarification from the king, but judgement was pre-empted by the plaintiff surrendering to the king his claims on William and his offspring, perhaps the result of an out-of-court agreement. In 1227 Nicholas Baker of Wycombe, a seigneurial town without chartered liberties, was trying to inherit his father's land through an assize of mort d'ancestor, on the assumption his residence in Wycombe had given him the free status that would enable such an action; a jury rejected his claim to the property on the grounds that his father, as a serf, had no right to heirs, but avoided pronouncing definitively on whether Nicholas himself had any claim to be free. [fn.60]
Operation and limitations
What, then, was the correct procedure, around the time of Bracton, for a lord to try to reclaim a fugitive serf and what means did someone have to defend against such a claim?
In the first instance, once the fact of a flight had been ascertained, a lord's recourse was self-help: to find and recapture the fugitive. Flights would not have been easy to police in a timely manner and, in the case of a serf seriously trying to escape his or her lord, as opposed to one simply relocating to a neighbouring village or a manor of a different lord, tracking down could have proven very challenging, particularly given the fragmented character of estates of the English nobility. If the whereabouts of a fugitive could be discovered, to secure repossession would have required a lord to have at his disposal the means to threaten or use force against the individual, or to negotiate with or even lead an expedition against another lord. Excessive violence was not supposed to be used to restrain or discipline a recaptured serf; he might be imprisoned or put in the stocks, but this was perhaps more to coerce the offender into agreeing to pay chevage before being turned loose again.
Bracton mentions, in regard to pursuit, a time-limit of three or four days, which Hyams, thinking it meant effecting a recapture, considered an invention, since he found no corroborating evidence in case law. [fn.61] However, Bracton seems rather to be referring to the need to initiate pursuit promptly once a flight was discovered, and allows that the actual recapture may need more time, noting that none with authority over the location where a fugitive was found should, on the grounds of any liberty or privilege possessed, obstruct recapture. To define pursuit it may have been sufficient to issue, at the next manorial court session, arrest orders to a manorial official or to the tithing to which the fugitive belonged (although the responsible party is often not identified). Yet manorial courts tended to convene only once every few weeks at most, and some dealt with fugitives only at the views of frankpledge held less frequently, so it is difficult to see how such orders would have complied with Bracton's restriction. There is no dearth of such orders in court records, some fruitless and repeated in later sessions, some leading to court appearances by fugitives. For instance, the records of the manor court at Bradford for 1358 identify a number of fugitives, including several children of William Childyong, one of whom was believed to be in the borough of Pontefract, and who could not be retaken, while William Tomse who had resettled on the outskirts of York was brought back to pay a fine and commit himself to annual chevage. The jury of tithingmen of the leet court of Earls Colne (Essex) was reporting in 1406 the absence without licence of several bondsmen, though their whereabouts were unknown and the manorial bailiff was instructed to make enquiries; but such sessions were held only two or three times a year, and it was not until 1409 that the court could be advised two brothers were in Sudbury living with a bladesmith, while one (a weaver) was resident in St. Giles' parish, Colchester, while his sister was in another parish. The court ordered that these be arrested something easier said than done while general enquiry was to be made by the suitors to the court concerning another, still undiscovered. [fn.62]
The more significant time-limit specified by Bracton was that of a year (which Britton extended to the full year and day). If within that time a fugitive could not be apprehended, or at least his location identified and a formal claim to him registered with local authorities, then the lord was considered to have lost his rights of self-help, through negligence or disempowerment (when reclamation efforts were unable to overcome resistance from whoever was harbouring the fugitive); he then had to resort to a royal writ. The example writ Glanvill cites may have an older limit implicit, in indicating that the flight must have occurred since the king's coronation. We have already seen that both sources were aware of the year-and-day privilege of 'town air' and it may have been this, together with the extension of 'free air' to royal demesne and desire not to have the king exposed indefinitely to interference on his lands by lesser lords, that prompted Bracton to identify a year as the limit for seigneurial self-help. [fn.63] Within that year a lord could arrest and presumably imprison a fugitive foolish enough to set foot back in his village; not if he returned after a year of inaction by the lord, although the lord still could pursue reclamation through litigation. The latter was the only lawful method available for laying claim to the offspring of fugitives, if born after the flight occurred. The Mirror of Justices states that at no time could a lord use self-help against a serf who was off the lord's estates; but its summary treatment of the subject makes it unreliable. Bracton makes no explicit connection between the year of self-help and the year-and-day on privileged soil, nor is the latter a specification included in writs, although Britton makes a connection with the limitation specified in the writ of mort d'ancestor. [fn.64]
While Bracton's year appears a limitation on the type of action a lord might take to regain a serf, the urban year-and-a-day instead created an absolute bar to reclamation. Later writers seem to conflate the two. We should pause briefly to consider year-and-a-day.
It is not immediately apparent that there is any particular significance in this prescriptive limitation. In the thirteenth century the same term was applicable to a number of legal situations, some of which might be thought, in certain regards, reminiscent of the 'free air' principle. For instance, the term was used: for early royal protections, and sometimes for exiles; for essoins where a party to an action was absent on pilgrimage, or so sick as to be bed-ridden; to bar a charge of manslaughter if an injured man lived for a year and a day after receiving a wound; to bar a York widow's claim to dower rights unless made within a year and a day of her husband's death; to give the king the profit from an outlaw's land before it reverted to its chief lord; for the period in which a stray animal remained in the pound awaiting a legitimate claimant before it became the property of the local authority (something similar applying to goods retrieved from shipwreck); to give an opportunity for lords to prosecute poachers in their deer parks, before the king stepped in to exercise his rights; to allow opportunity for lords to redeem woodlands taken into the king's hand due to waste, failing which redemption they would remain as part of the royal demesne. [fn.65]
The term is found not just in England but elsewhere in Europe. It does not seem to be ancient. Although the Leges Henrici Primi identifies a couple of instances, these are not traceable back to Anglo-Saxon laws. On the contrary, a law attributed to Alfred allowed that someone bought as a bondman should serve for six years and in the seventh could choose to leave or remain with his lord; the law of the Scottish boroughs, while providing that residence away from a lord for year and day accorded the same liberties as a burgess, still gave a lord seven years in which to make a claim, and only after that term was personal freedom absolute. [fn.66] As already noted, under the Angevins a more variable term could also be used in English law, by fixing a terminus on a recent well-known event such as a coronation.
Although Maitland wished to see royal prerogative in the derivation of the 'free air' principle, we might equally note some urban flavouring. The same term of limitation applied in a number of towns to challenges to a purchaser's title to a burgage property; we have already observed some ambiguity in early examples of privileges that may concern either that or the 'free air' principle. Maitland favoured the hypothesis that the 'day' of the term actually represented not a 24-hour period but the first court session to be held after the lapse of a year, something forgotten by later jurists as court procedure changed. [fn.67] In that context, we may note that any newcomer residing in a town for at least a year should, at some point, have been expected to do suit at the local court administering frankpledge (its principal session often only annual), and there, if he had guarantors of his good character and behaviour, be sworn into tithing something permissible only for permanent residents and potentially providing a basis for a defence against any subsequent accusation of servility. Furthermore, by about the close of the thirteenth century a newcomer, if wishing to share in the full range of burgess privileges, was commonly expected to apply formally for citizenship within or soon after a year's residence. But we are getting ahead of ourselves.
It was partly to forestall the risk of violent feuding between lords, over rival claims to serfs, that the king authorized plaintiffs to seek his aid, through a writ of naifty; this, in its early forms, enforced the long-standing obligation of one lord not to receive the man of another, and came to invoke the aid of the local sheriff on behalf of the plaintiff. The sheriff then had to hold a judicial hearing as to who had title to the alleged serf. This, by the time of Glanvill, gave the latter the opportunity to play his own card by asserting free status. [fn.68] By obtaining a writ of de libertate probanda, of which a new version appeared following the extension of 'free air' to royal demesne, the alleged serf obliged the sheriff to give him temporary benefit of the doubt, halt the proceeding (or any case in which an exception of villeinage had been raised) so that the question of personal status could be referred to a royal court, and free the accused on bail, with by the time of Fleta at least protection from detention or harassment until the coming of the next royal eyre. Introducing the exception and/or the de libertate writ appears to have been common, and Hyams notes that few such trials reached a concluding judgement; cases of lords using writs of naifty to regain possession of serfs were gradually superseded by the writ being used just to initiate judicial investigations of status. [fn.69]
The trial of status itself posed difficulties for a lord. He had to ensure that the person of the statuliber, as the alleged serf was now considered, was produced in court. Some lords apparently kept not merely inventories of their villeins but also information identifying their siblings, spouses, and offspring; such records may have been widespread but, once villeinage was obsolete, there was little reason to preserve them for posterity. If the lord had insufficient documentary evidence of his accusation of serfdom, he might also have to produce in court close kin of the statuliber, to testify to their own or the accused's servile status; at least two male kinsmen were required, according to Britton. The combination of records and testimony of kin could enable the reconstruction of fairly detailed trans-generational genealogies. If kin could not be found (they too might have fled) or their evidence proved inconclusive, resort could be had to inquest by a jury of neighbours; a townsman of immigrant origins might have an advantage here in that his neighbours could be ignorant of his family background. The statuliber might in turn seek to present evidence of these types, or prove that the 'free air' privilege was applicable to his case. Robert Grub, in the case mentioned above, declared to the court that he was a king's burgess who had dwelt in Grimsby for twenty years without the abbot having made any claim on him, and that he had there land, a house, and a wife (typical elements of claims, for various purposes, to demonstrate bona fide residence); judgement was given in his favour on those grounds and because the abbot was unable to produce any of Robert's kin who were themselves villeins. The trouble, time and cost involved in tracking down kin and ensuring that, once in court, they would give evidence demonstrating servility may have made it too bothersome a process for some lords, and the scarcity of case law may reflect a tendency to resort to compromise through out-of-court settlements.
The requirement in some wordings of the 'town air makes free' rule that those qualified must be property-holding, tax-paying members of the burgess community, and/or members of its merchant guild, should in theory have generated documentary evidence that might have been useful to a statuliber in proving his case (Bracton explicitly stating the need for verification); financial documents, such as rentals, taxation lists, and payments of membership fees are among the earliest types of record produced by medieval borough administrations. In a plea of naifty in 1313, mentioned above, eighteen men were claimed as villeins or their offspring belonging to a manor in the vicinity of Norwich; its new lord had evidently looked through the manorial archives and compiled a list of long-time fugitives. Four of the accused asserted freedom as citizens: one William de Colton, a wealthy trader declared he had been at scot and lot and paying taxes for sixty years unchallenged, and a second for thirty years, while the last pair, brothers, stated they and their ancestors had been born in the city. There having been no explicit grant to Norwich, they asked the court's cognizance of a charter of William the Conqueror stating the 'town air' principle doubtless the same held up by London authorities as evidence of that city's claim to the privilege. The court evidently found this suspect or insufficient, as three then produced deeds to prove they or a parent had owned property in Norwich since the previous reign, Colton also providing documentation of a favourable inquisition ad quod damnum for some of his; on this basis they were judged to be of free status. The case of the fourth was postponed for inquest by a jury drawn partly from the city and partly from the countryside. This case supports the impression that Norwich did not have the 'free air' privilege, as may a second in which a man who had been living off-estate for some time and had married a Norwich woman was unable to resist a challenge to his status, acknowledging that he paid chevage. [fn.70]
The need for documentary evidence is unlikely to have been the reason the requirement was specified, but certainly the enfranchisement of serfs and their classification as resident members of a burgess community became entangled. In her brief consideration of the 'free air' principle, Mrs. Green went so far as to conclude that "mere residence without admission to citizenship was no protection against the claims of a feudal lord ... emancipation was won not by a year's residence but by a year's citizenship." [fn.71] We must consider to what extent this may be true.
Although our perception may be handicapped by the paucity of written records, in Anglo-Saxon towns a sense of community probably derived primarily from propinquity within a more-or-less defined territory to some extent administratively separate from the countryside, and only secondarily in terms of common interests and obligations. There was differentiation between burgesses and non-burgess residents, but the former did not have, individually or collectively, the range of status-related liberties they would later. After the immediate disruption caused by the Conquest, followed by stimulation as the new ruling class fostered urban infrastructure developments, an influx of migrants from the continent, and renewed vigour in exploitation of arable land, economic and population growth resumed, as did their concomitant: urban development. The appearance within a number of towns of formal associations of those residents engaged in some way in trade their name, merchant guilds, failing to capture the originally broad membership base of such institutions (so that Glanvill could, in his statement about 'free air', imagine community, guild, and citizenry as synonyms) is one indication of greater crystallization of communality. Seigneurial charters of liberties to existing towns (as opposed to the new and speculative foundations discussed earlier) represent a subsequent stage in the process, perhaps the achievement of lobbying and fund-raising by the guilds or by less formal alliances of movers and shakers among the populace; they tacitly acknowledge that burgesses could operate communally to administer local matters and to fulfill their obligations to the seigneur.
Burgess status seems to have been defined initially by residence, a distinctive form of urban tenure being visible before 1066; twelfth-century charters of liberties assured that tenure of a burgage property meant freedom from servile obligations to the landlord. Another definition, being at scot and lot, meant being contributory to regular payments due from the town to its lord. Since such contributions were likely allocated on a household basis, the two definitions may have meant much the same, although the latter may have been a post-Conquest development, as more probably was defining citizenship through membership in the guild (or hanse).
As, during the twelfth and thirteenth centuries, migrants enlarged the residential population, sub-division of burgage plots increased the number of potential claimants to privileges without necessarily increasing contributors to communal dues, socio-economic differentiation increased, and the development of local administration necessitated revenues to fuel its operations, borough authorities began to redefine citizenship as something that required formal admission and documentation and, except in the cases of those who could claim it by patrimony or marriage, payment of a fee. It must have become increasingly difficult, as processes of sub-division and infilling resulted in the proliferation of rental arrangements and sub-lets, to ascertain exactly which residents were householders, despite growing efforts to register title locally in some fashion or other; the need was felt for a new way, easier to verify, to distinguish privileged burgesses capable of contributing to common profit from unprivileged residents who might prove more of a drain on community resources. While some of those migrating to towns, legally or illegally, were seeking to better themselves and were willing and able to work hard to do so, others were in quest of an easier or more assured subsistence, or lacked the skills or opportunities to lift themselves above the poverty line. The latter group were unlikely to have been viewed as contributing to the economic well-being or the prestige of a town, and it is hardly surprising that those who did so contribute, and who held the reins of government, were, or became, disinclined to concede an equality of status. In towns of the High Middle Ages, land-holding continued to be the font of wealth, status, and respectability, but with those earning a living from business occupations starting to make inroads into the urban ruling class.
During the Late Middle Ages the consequences of the transition were becoming manifest. Citizenship was treated no longer as a right of burgage tenure but as a privilege to be granted or withheld by the community; perhaps only half, or even fewer, of the male householders were enfranchised. In some places the merchant guild acted as the mechanism for citizenship, in some the two institutions essentially merged, while in others they remained independent and required separate memberships associated with different sets of privileges. Membership fees increased, partly to bring about greater exclusivity as the urban elite became more class-conscious. For on the other side of the citizenship coin were parochialism and xenophobia, a distrust of outsiders that gave rise to protectionism in terms of inhibiting commercial competition with, and jealousy in guarding economic advantages of, the established insider elite. Trading licences might be sold on an annual basis to outsiders or to lesser members of the community who could not afford full entrance to the borough franchise.
This emergence of gradations of privilege within the community gave rise in some towns to controversy. In 1267, for example, the king appointed an investigation into a complaint by Lincoln residents that, whereas by royal grant anyone who stayed unchallenged in the city for a year and day and was at scot and lot would thereafter be free and share in all citizenship privileges, the city authorities had demanded monetary payments from such individuals in return for citizenship and used force and intimidation to make them pay up. A similar complaint was heard at Bury St. Edmunds in 1304. [fn.72]
Once a town's population had reached a healthy size, protectionism may have seemed preferable to the 'free air' principle . Borough authorities, wishing to preserve their cherished liberties against external interference, became increasingly uncomfortable with the presence of an unfree element in their midst, whether independent settlers or the tenants of seigneurial sokes within urban boundaries. The kind of immigrants they wanted were those who could pay their way, contribute to the profitability of the town, and be answerable only to borough courts. Norwich's custumal, representing late thirteenth century conditions, includes rules on the admission of citizens. Acceptable applicants were to be of free status, not anyone's serf, a matter to be investigated, probably through the same questioning under oath used to ascertain whether an applicant had the financial means to support citizenship. If the admissions committee had any doubts on what it heard on the latter matter, it was to enquire further from those who knew the applicant; but the applicant's declaration on personal status was apparently of less significance and taken at face value. Admission was contingent upon finding guarantors for payment of the minimum 20s. entrance fee and for the applicant acquiring a permanent residence (if not already done) within a year of acceptance. Any serf wishing to become a citizen had to present written authorization from his lord. A York ordinance of 1394 ordered that henceforth no serf be admitted to citizenship; applicants were to be required to provide surety that they were free men and that they had not been pronounced outlawed, excommunicated, or interdicted. Similarly, at Lynn an ordinance of 1386 prohibited any burgess from taking on an apprentice born unfree, all candidates for apprenticeship to be examined by the mayor, in the presence of other burgesses, as to their status; were it later found a candidate had lied, his term as apprentice was not to qualify him for citizenship. [fn.73] Colchester's register of admissions to citizenship becomes increasingly fastidious, over the course of the fourteenth century, in recording the geographical orgins of entrants (other than those of local families) and during the fifteenth shows growing inclination to identify them more closely not just their birthplace but often their parentage; whether this was a precaution in case of future challenges to their status cannot be said, but it shows at least that applicants were quizzed about their background before burgess status was accorded them.
The prevalent expression the 'free air' clause came to take in borough charters assumes that a serf could not simply seek sanctuary in a town for long enough to win freedom, but must become a householder there (a phrase abbreviated in some cases to se tenuerit) and share the burdens of burgess status. In other words, that the fugitive intend to become a permanent member of the community of citizens. Glanvill and (even more so) Bracton, looking at the matter from the perspective of the king rather than that of the towns, focus on the residential aspect, although Glanvill at least understood residence as a prelude to citizenship. If an immigrant was able to demonstrate the ability to integrate into the community and support the financial obligations of citizenship for a year and day, without any challenge to his status, the local authorities were prepared to accept his claim to be a free man and his right to continue in citizenship. Citizenship was doubtless a desirable condition for fugitive serfs, if they could afford it, for it proclaimed a man's free status. Only the Dublin and Waterford custumals explicitly state that a serf, who by passing the year and day unclaimed wins absolute protection from any future claim, then may choose whether to take up citizenship or remain technically a villein, [fn.74] but it is not clear that such differentiation between escape from bondage and acquiring the status of freeman applied to the situation in England.
Inclusion of the references to guild and to scot and lot may have been an adaptation of the 'free air' rule to English circumstances, at the initiative of urban representatives involved in negotiating charter terms. If some lords of towns intended a come-one, come-all policy, this did not suit the leaders of urban communities who may have been, as they certainly were at a later period, concerned about a possible influx of friendless immigrants who could wind up (if not already) beggars or criminals. On the other hand, there may have been a worry on the part of craft guilds about an influx of cheap labour eager to acquire skills and horn into trades over which the guildsmen desired monopolistic control (although this aspect of craft guilds remains a matter of debate among historians).
We may, however, doubt that even the lords had a common policy regarding those eligible for freedom after a year and day. Certain exclusions, beyond those implicit in the requirements for guild membership and being at scot and lot, are encountered among the various versions of the rule. While some formulations are clear that it applied to 'any serf of any man', the lords of several minor foundations excluded their own serfs arguably the only ones to whom they might rightfully offer freedom. [fn.75]
Another exclusion, noted above for Newcastle and Plympton, was the serf who came intending a short-term visit, whether by pre-arrangement with his lord or by his own explicit declaration of intent (likely forthcoming when, within a few days, a visitor was required to identify to the authorities guarantors for his good behaviour); Ballard suspected that those with chevage licences may also have been meant. [fn.76] A grant of privileges in 1265 by the Earl of Chester to his barons in the county turned the usual 'free air' phrasing on its head by assuring them that none would lose a serf who came into the city of Chester, unless he were allowed to remain there unclaimed for the year and day. [fn.77] Thus 'free air' was not intended to make a privileged English town a sanctuary in the strict sense of providing protection or emancipation merely through reaching its soil. This is perhaps reinforced by the Nottingham statement (noted above) apparently excluding temporary refugees from war-time conditions.
It is less certain whether 'free air' was originally envisaged as essentially a transfer of title from one lord to another, and that a serf so transferred became free only against his original lord and while he remained in the place of escape (which in this sense is sanctuary-like). Maitland favoured this interpretation and Hyams felt Glanvill saw the freedom gained as provisional, but Bracton (perhaps stretching the envelope) held that servility and title were extinguished absolutely if a lord neglected to lay claim to a serf within a year; in support of the former view we have a case from the Middlesex Iter of 1294, in which lawyers agreed that a villein who had been absent from the seigneurial land of his birth for several years could be retaken by his lord if he returned to his home, as in that context he would be restored to the status he had at time of leaving. [fn.78] Certainly any change in status was not retroactive; in 1198 a claim of borough privilege was defeated in court when the plaintiff argued that the defendant had been a serf at the time he committed a theft. [fn.79]
These exclusions hint that the 'free air' privilege may have created more problems than it solved. During the fourteenth century it was falling out of favour, a trend visible as early as 1268, when the son of the founder of Bridgetown Pomeroy attempted to increase his revenues through an extension to the town while denying his serfs relocated there any claim to liberty other than burgage tenure rights. The number of appearances in charter grants declined, the last occurring in 1398. The privilege was one of a handful of augmentations when, in 1318, the men of Grimsby used royal confirmation of their 1256 charter to fill a few gaps, but it is mainly found at a few more towns in Wales and Shropshire, some just copying the Shrewsbury model. When, in the 1280s, Edward I made his carefully planned foundation of New Winchelsea, to re-house the inhabitants of the flooded Old Winchelsea, he had seen no advantage to augmenting its existing chartered liberties (granted by the Angevin kings) with a 'free air' nor indeed any other clause; the new town already had on hand most settlers of the type needed and was not felt to require enhancements to attract others. A version of the privilege that looks drawn from Glanvill was entered into a late-fourteenth century volume of administrative memoranda at Colchester, but in the context of a glossary of antiquated legal terms; there is no evidence of an explicit grant of 'free air' there. Similarly, at Canterbury (also with no sign of explicit grant) we find what may be a relic or, more likely, a local adaptation or transmutation in a list of citizenship privileges drawn up ca.1430; as the final items in the list, attention turns briefly to resident serfs and, although there is no indication that a year's residence set them free, they were assured protection from harassment from their lords while within the city boundaries, and any offspring born within those boundaries were to be considered of free status. [fn.80] One does not get a sense of any significant enduring enthusiasm for the 'free air' privilege as originally conceived. Seigneurial involvement in urbanization was diminishing the town-founding bubble having burst and most of England now being saturated with towns, quite a few of which had failed to meet expectations and barely deserved the name while borough authorities were exercising more control over recruitment to citizenship.
Although another flurry of town-founding took place during the reign of Edward I most in conjunction with English subjugation of North Wales and along established lines some was on the Scottish and coastal frontiers, where the concerns were both defence and economic revitalization. We see a different policy regarding colonization in the refoundation of war-torn Berwick-upon-Tweed, where leading burgesses from other towns were recruited to plan the rebuilding and assign land within Berwick, not to peasants, but to merchants, craftsmen, and other suitable colonists drawn from towns across England. Such commissions of experts were engaged in the redevelopment of Kingston-upon-Hull and the relocation of Winchelsea after the old town was lost to flooding. A similar approach had been tried a century earlier, when the king assigned to Bristol men, who already had trading links with Ireland, the task of colonizing and governing Dublin after the Danes had been ousted. Recruitment of settlers from the servile sector does not seem to have been felt necessary in these cases; although Bretolllian law was imported to other Irish towns under Norman lordship, neither Dublin nor its mother-town, Bristol, have the 'free air' privilege in their charters of liberties.
From the perspective of feudal lords the privilege may have been siphoning off not merely surplus villeins (those unable to make a living off their land and their children facing the same impediment, or struggling to find paid work because of over-population relative to the work available), but also the more capable and entrepreneurial of their tenants, as well perhaps as encouraging departures outside of chevage agreements. We know of several men who, after fleeing serfdom, worked their way up to positions of wealth and power in towns. One example (others we will notice later) is the London mercer Simon de Paris, whose longevity and prominence within the citizenry brought him to the offices of alderman (1299) and sheriff (1302); in 1306, when visiting his native village, he was seized as a villein and briefly held prisoner. When he subsequently sued for false imprisonment he was counter-sued for naifty. He defended on the grounds of being a citizen of London, bringing a retort from the sceptical judge that better he had not left the city; but the jury found him to have been a free man when arrested, and awarded him sizable damages.
From the perspective of borough authorities, 'free air' created a grade of resident who might seek to claim burgess rights without having gone through the formal admission procedure they wished to impose. William de Colton of Norwich, whom we have met as an alleged serf in 1313, had in 1288 been accused in the borough court of enjoying a citizen's advantages without ever having formally taken out citizenship. While it was incumbent on those authorities to protect their territorial integrity and chartered liberties and, by extension, townsmen who exercised the latter although the declaration by Hereford authorities that legal assistance would be extended only to resident citizens [fn.81] is typical to have obstructed lords trying to reclaim serfs who had not taken up citizenship could only be expected to sour relations with local landlords who were their neighbours and consumers of goods and services, if not magnates of influence at court. In 1288 the Earl of Cornwall's attorneys registered, in London's husting court, a claim of naifty to eight men (most of the same family) from a neighbouring shire, and asked that those fugitives, of whom the claimant had seisin within the previous year, not be admitted as citizens; no reply has survived but, since the claim was made within the prescribed period in law, it seems likely the London authorities would have complied. [fn.82] Not a few of the urban upper crust were themselves manorial lords and masters of serfs and were increasingly feeling a commonality of interests with rural gentry.
Furthermore, their developing sense of privileged status and dignity found expression in prohibitions against those tainted with servility. We have already noted that at Norwich serfs were explicitly barred from citizenship, unless they could show permission from their lords (which probably meant manumission). Fourteenth-century rules for the merchant guild at King's Lynn also declined admission to serfs and required the expulsion of any member subsequently proven of servile status, while in 1327 an applicant was refused admission to the Andover guild on the grounds he was known to be the serf of the lord of the neighbouring vill of Upper Clatford; whether the guild would have been quite so fussy had the applicant been one less conspicuously risking a dispute with a local landlord, we cannot know, but it was felt advisable on that occasion to reiterate, on record, the general principle that no-one who was a naif or villein should be a member of the guild. In 1305 several butchers trading in London were found not merely to be residing outside the city, but on land held in villeinage; they were stripped of their citizenship. Embarrassments such as this and the Paris case provided an excuse for city ordinances of 1387: one prohibiting anyone from becoming an apprentice in London, or proceeding thence to citizenship, without first taking oath he was a free man and not a serf those misrepresenting themselves to suffer disfranchisement and a fine; the other prescribing the same punishments for any man born to a servile father who, later in life, was nominated for election to high office in the city and failed to declare his ineligibility. The concern was ostensibly that discovery of servile origins of urban rulers risked disgracing the city and its ruling class. [fn.83] Despite this attitude, London authorities were still prepared to go to bat for alleged fugitives if a city privilege itself was under threat, as the case in 1428 (mentioned above) shows, when they not only provided a detailed justification of their claim to 'free air' but also gave evidence that the accused had been residents for decades without challenge and were reputed to be trustworthy and of free status. Similarly, when in 1407 the bailiffs and commons of Great Yarmouth threatened to kill the bearer of a royal writ supporting the Lord of Malteby's claim to one Robert Salle as his serf (by descent, though his father had been dwelling in Yarmouth when killed by the Black Death), and they besieged him in the parish church to which he fled, offering the refugee the option of either not pursuing execution of the writ or of eating the offending document in their sight (he chose the former course), the townsmen's concern was less to protect one of their fellows than to prevent any legal action they considered prejudicial to the chartered liberties that gave them independence from most external authorities.[fn.84a]
The Black Death must have exacerbated what had already become an aggravation for manorial lords. The labour shortage it caused, together with disruption of seigneurial control, stimulated an increase in peasant mobility, as more favourable tenurial conditions or higher-paying jobs were sought and towns once more had a need for immigrants. Lords attempted to remedy the situation by making chevage licences more restrictive and expensive and through legislation, not only to inhibit mobility and turn back the clock on rising wages, but also avoiding a direct attack on the 'free soil' principle, which would have challenged the royal prerogative to hobble the principle by eliminating procedural tricks exploited by fugitive serfs, learning from litigation experiences of their fellows or advised by the growing numbers of trained lawyers. Some of the more prosperous serfs, rather than resort to the extreme of flight, sought to edge their status closer towards freedom by acquring freeholds. One example is the case of John Martin, a serf of Chelmsford manor, who in the early part of Richard II's reign purchased a probable burgage tenement in the High Street of the market town (founded within the manor ca. 1200); the manorial lord, the Bishop of London, alarmed, seized the property on the grounds that Martin was his bondsman, then regranted it to him to hold in villeinage [fn.84b].
The undermining process had begun pre-plague with a complaint to parliament (its attendees predominantly manorial lords) that fugitives were suing their lords in distant courts so that, when the defendant raised exception of villeinage, the plaintiff might be accorded free status by an inquest of locals who knew not his true origins; the king granted (1347/48) that such inquests be taken near a plaintiff's birth-place. 1373 saw a similar complaint, that serfs went to London to use its court to initiate fraudulent suits of debt or contract against their lords, so that the process itself would imply the plaintiffs were free men, and that exception of villeinage was a useless counter in London; on this occasion the king was unwilling to change common law, perhaps for fear it might work against those truly free. A statute of 1352 provided that the writ of de libertate probanda should no longer prevent an alleged serf from being detained until trial. In 1377 the concern expressed was that serfs were being advised to obtain copies of portions of Domesday Book for the manors of which they were villeins, apparently with a view to proving they were royal demesne and subject to 'free air'. The previous year had seen a general gripe about lazy scoundrels who hid in towns to have an easier life, and the following one saw another about rural labourers seeking other employment in urban areas. We must understand these developments within the context of a broader, post-plague seigneurial reaction against the threat of social upheaval, which aimed to reassert subjugation of peasant tenants to their landlords.
The fears fed by the Peasants' Revolt gave fresh opportunity and into the 1390s objections were raised to the ability of town air to shield fugitive serfs. In 1385 the old complaint about town courts being used to launch suits against lords resurfaced and it was legislated that the fact of a lord responding to such suit could not be used by the plaintiff as evidence of free status. But nothing seemed to stem the tide of escapes. The manorial court rolls of Eynsham Abbey regularly, between 1382 and 1462, recorded escapes, along with orders to relatives or the headmen of the tithings to see to it that fugitives were brought back or face being fined. Yet no follow-up neither in retrieval nor in fining is apparent, nor is there evidence that the expense of obtaining a writ from the king was ever attempted (although this option was proposed in the court); and this despite the fact that most fugitives were known to be in nearby villages. From 1469 the court no longer bothered with such matters. In the fifteenth century protests about serfs' efforts to win freedom became infrequent as landlords came to terms with changed circumstances and serfdom withered away, replaced by landlord-tenant relationships based on less oppressive terms or the substitution of financial for servile obligations. [fn.85]
A few lords sought to ride the winds of change down a new avenue of profit, by extorting manumission payments from fugitive serfs they could locate; the obvious targets were those who had made a new and prosperous life for themselves in towns and become more conspicuous in consequence. The cases of Simon de Paris and William de Colton, already mentioned, might represent early examples.
The most notorious case, however, was that of Richard Spynk, a Norwich merchant who, with his brother and business partner William, were laid claim to by the Bishop of Ely as his villeins. The charge that Richard had been born in Doddington, in the Isle of Ely, is made plausible by lands he held at another village in that neighbourhood. As a serf he had probably prospered by raising sheep and selling their wool at Norwich or to Norwich contacts. It was in his interest to decamp to Norwich, where a branch of the family was already established. There he married the daughter of a propertied city dyer, took up citizenship, built up his land-holdings in sheep-rearing countryside, and was drawn into other aspects of the cloth industry: he imported woad and his brother operated as a fuller. His tax assessment in 1350/51 suggests him one of the wealthiest citizens. In the 1340s he earned the city's gratitude by using a large part of his wealth to finance the enlargement of city defences, shrewdly negotiating in return tax exemptions and other advantages for himself and his descendants; in this he was not only public-spirited, but perhaps showed consciousness of his own humble roots, for his original intent had been to alleviate the burden of cost likely to fall on the poorer residents. His agreement with the city was witnessed by a number of regional magnates and maybe one of them drew the bishop's attention to Spynk. In 1346 the Spynk brothers obtained judicial commissions in Norfolk on a series of complaints that the bishop's men were conducting an intimidation campaign against them: stealing their livestock, lying in wait to ambush them when they came out of the city, and threatening them with death, mutilation, or imprisonment. The case came before parliament (1348), where the bishop countered that the Spynks had only brought the charges so as to engineer a claim to free status; he wanted an exception of villeinage to be tried in Cambridgeshire. Spynk responded that the bishop could pack a jury there with his own men and asked for the benefit of doubt on his right to pursue his case as a free man. But, as noted above, there was already concern over legal ploys fugitives might use to escape serfdom, and Spynk's plea fell on unsympathetic ears. The king approved trial of the exception in Cambridgeshire (but allowed appeal to his court if the Spynks claimed to be free) and annulled the suit brought by them against the bishop. Spynk, his business operations already disrupted, felt the safest option was to reach an out-of-court settlement and purchase manumission (1352). Whether Spynk was an escapee who thought himself sufficiently well-established as a townsman to pursue formal adjustment to his status, or had been a free tenant on a manor, the impecunious bishop, who used intimidation and extortion against other victims, appears less interested in regaining a serf than in making money out of the situation. [fn.86]
Hard to say whether this high-profile case influenced Laurence de Reppes, a burgess at Lynn, to buy off challenger Alan Reyner of Roughton in 1353. Born Laurence Bon at Repps, a village near Roughton, he is first mentioned in 1339, acquiring a rent from a shop in Lynn. His initial occupation may have been as a tanner, but he prospered sufficiently that by 1346 he was dealing in herring, although subsequent mercantile activity shows him importing hides; by 1349 he held more than one property in town and his local tax assessment of 1357/58 was well above the average. By the latter date he was into his second term as the borough's financial officer and was regularly being elected to terms on the town council. Laurence's purchase of manumission for himself and his offspring [fn.87] may have been precautionary or a response to a claim laid by Reyner, but there is no indication the latter needed the extreme tactics used by the Bishop of Ely.
A couple of fifteenth century cases may or may not fall into this genre. In its early years John Bishop of Newport complained that an armed group had dragged him from his bed, carried off from his house valuables worth about £100, imprisoned him for two days, and put him in the stocks for five; the accused defended that Bishop was his villein, but the outcome of the case is not known. In 1447 the Duke of Gloucester laid claim to John Whithorne, a well-to-do gentleman who had property in Salisbury, and imprisoned him for years; only after the duke's death did the king restore Whithorne's property and declare him never to have been a villein. Malice, politics, or perhaps extortion are among possible motivations for a rumour in 1481 that Lord de la Warre was in a position to claim as his villein William Bird, a wealthy merchant of Bristol who had a few years earlier served as its mayor; this was taken seriously enough that some effort was put into drafting a testimonial asserting that Birde was the grandson of a freeman of Birmingham, obtaining endorsements of it from numerous of members of the gentry and residents of Birmingham, Coventry, Worcester, and having the testimonial and names of signatories recorded in Bristol's Great Red Book. [fn.88]
Very few incidents of this kind of speculative extortion have been unearthed, but it may well be that most never reached the litigation stage and, indeed, reflect dissatisfaction with the drawn-out legal process. Targets were presumably chosen because prosperous enough to buy off harassers. That in none of these cases was the 'free air' principle invoked is no reliable indicator of disenchantment with the privilege. Bishop Lynn's conservative mesne lord made no grant of it to his town. It remains unclear whether it was applicable to Norwich, but Spynk's lawyer may have advised that playing that card would be tantamount to an admission of once having been unfree and of having become a citizen under false pretences. [fn.89]
Yet towns remained unlikely to place their fundamental freedoms at risk by acquiescing in claims of villeinage against upstanding members of their community. When, in 1399, the archbishop of York was informed that William de Wystowe, a York potter, was rightly his villein through his dominion of the village of Wistow (south of the city), pertinent records were searched but no evidence was found to show that William or any of his ancestors had ever belonged to the bishopric. It was concluded the accusation had been made out of malice, (presumably taking advantage of the ordinance of 1394). William's free status was publicly proclaimed at a subsequent communal assembly and on a later date repeated before a gathering in the archbishop's palace, where it was also affirmed that the archbishop had no claim on his person or his possessions; the whole matter was carefully recorded, along with the names of witnesses to the proclamations, in the city's memorandum book. The judgement that the accusation was malicious seems the more probable considering that William had, two years previously, been one of the city's chamberlains, a role that could easily have made him a few enemies.
Richard Spynk (or his lawyer) may have felt he could argue the principle of in favorem libertatis, but this was a relatively recent import from Roman Law and English common law was not born with an inherent assumption that men were free unless proven otherwise; its infiltration is instanced in the protection accorded an alleged serf until his status was determined by a court [fn.90]. Fleta might justify a restriction on writs of naifty on the grounds that "servitude is repugnant" but, in the period when the 'free air' principle was gaining ground in England, secular law saw nothing morally wrong with servitude; [fn.91] the aim of common law was not to benefit the unfree but to define which men were free, ensure they were not deprived of their rights or property, and give them access to legal remedies through the king's courts. [fn.92] The position of the Church was, if anything, even harder. As major landowners, institutions of the Church were less inclined than lay lords to accord their town foundations burgess privileges. Canon Law prohibited emancipation of serfs, except in special circumstances, and Aquinas defended servitude as a necessity to provide the Church with the economic security that would enable it to perform its role in society. The idea underlying 'town air makes free' was not to create safe havens for escaped slaves indeed, we cannot even be certain that the initial target audience was exclusively serfs but to build communities of contributors to a range of public obligations, national and local. It was as such that serfs first obtained a measure of parity with the free population, while remaining unfree against their masters unless the latter neglected to burnish the metaphorical chains.
It was probably a handful of the great land-owners and serf-masters who, inspired by examples elsewhere in Europe, envisaged financial advantage from converting serfs to free men through settlement in towns. But the great majority of the market towns founded were small and, as far as we know, unchartered. Their seigneurial founders aimed at attracting traders and artisans who would help make the markets successful and profitable; they granted few privileges to their tenants beyond burgage tenure and freedom from local tolls, and it is a moot point whether most can even really be considered boroughs, in the sense that might have put them into the 'free air' category. These lords were not interested in freeing serfs, though there is no indication they made close enquiries as to the status of applicants for tenements in their new towns; the case of the Earl of Derby emancipating in 1251 his entire village (92 householders, men and women) of Higham Ferrers, in order to promote it to a 'free borough', for which he had obtained a fair licence the previous year [fn.93], appears exceptional, though perhaps only for lack of detailed evidence of other cases. A growing number of lords were starting to realize that a system based on obligatory labour and payments due from those of servile status was not the most productive approach to motivating tenants, whether urban or rural, to give their best. So it was not just the privileged boroughs that attracted fugitive serfs, but also the small towns, for even these offered some prospect of escapees being considered irretrievable and opportunity for self-betterment. Enlarging the tax-payer base must also have had appeal to urban communities, and certainly it did to the king; this might result in another type of extraordinary situation exemplified by Newcastle-upon-Tyne, which in 1298 obtained royal permission to extend its boundaries to absorb the adjacent vill of Pandon and extend burgess status to its presumably servile inhabitants [fn.94]. Yet while the creation of many hundreds of new towns from the twelfth to fourteenth centuries brought a good measure of freedom (although not always complete freedom) from feudal obligations to locals who accepted burgage tenements there, only a minority were accorded the status of free boroughs, and even fewer show any indication of having the privilege of 'free air' that would assure fugitive serfs some protection from challenge.
There is no sign of a 'free air' privilege before the Conquest and how soon afterwards it was introduced we can only conjecture, the lack of habitual record-keeping leaving us in the dark;. Consequently, its heyday looks to have been the twelfth and thirteenth centuries; developments in common law and extension of the privilege to royal demesne may later have stolen some of its thunder. Its spread must be understood in the context of urban growth particularly a penchant for town-founding which required incentives to stimulate immigration of the copycat approach to chartering borough liberties, and of the assertion of monarchical authority across the realm following the Anarchy. The towns from whose charters a 'free air' clause is most conspicuously absent were largely those whose populations had, by the early thirteenth century, if not before (whether due to long prominence or relatively recent meteoric success), already attained that 'critical mass' providing sufficient occupational diversity to enable them to be competitive in a commercializing economy and, consequently, not in need of additional special measures to attract new blood. [fn.95]
The 'free air' privilege may have been introduced initially in England-Wales border regions, which had a pressing need for rapid population growth in an at-risk environment; and, less certainly, in the north, where similar circumstances called for pro-active measures to boost development of towns. It possibly also made an early appearance at London, ever ready to lay claim, legitimately or by usurpation, to most any privilege that might bolster its ambition for independence; the leaders of England's only metropolis, a hub of migration and long-distance commerce, would soon have got wind of Marcher deployment of urban liberties imported from Normandy. The privilege became one of a list of items from which urban leaders might select to construct the foundations of local self-government and restrict the interference of external authorities in internal affairs; although what they wanted from it first and foremost were solid citizens.
But it proved inconvenient to the rural and urban ruling classes alike, sharing a growing mistrust of vagrants particularly after the social upheaval caused by the Black Death, when an earlier willingness of lords to compete for manpower even if it worked against class solidarity gave place to a common need to restrict mobility (one manifestation of common values held by urban and rural elites) and actions were taken on both fronts to limit the applicability of the privilege. Perhaps only its continued value to the monarchy, in terms of creating more clients for royal justice, and a disinclination of towns to surrender any privilege once obtained, kept it on the books.
Nonetheless, for a fortunate few, town air an environment in which personal freedom had become the rule rather than the exception could confer emancipation from servitude, if they had the resources and resourcefulness to establish themselves securely within urban society and prosper. Emancipation for fugitive serfs may not have seemed, at least at first, too radical a stretch of the general freedoms from feudal obligations conceded to burgesses. Alongside the evolution of the law of villeinage, the designation of certain territories as free soil was at least a minor factor contributing to the gradual, if slow, decline of serfdom in late medieval England, as all but the most conservative landlords came to see which way the wind was blowing.
1 Henry Alworth Merewether and Archibald John Stephens, The History of the Boroughs and Municipal Corporations of the United Kingdom, London: Stevens and Son, 1835, vol.1, pp.349-50.
2 Charles Gross, The Gild Merchant, Oxford: Clarendon Press, 1890, vol.1, p.30, vol. 2, pp.164, 317; William Stubbs, The Constitutional History of England in its origin and development, 6th ed., Oxford: Clarendon Press, 1903, vol.1, p.452.
3 Paul Vinogradoff, Villainage in England, Oxford: University Press, 1892, p.86.
4 Adolphus Ballard, The English Borough in the Twelfth Century, Cambridge: University Press, 1914, p.5
5 So suspected Maitland, (Frederic Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I, 2nd ed., Cambridge: University Press, 1898, vol.1, p.648-49) while Merewether and Stephens (loc.cit.) had earlier maintained that the principle originated in common law and spread from there into borough charters, rather than the reverse. Gross, loc.cit., on the other hand, felt that seigneurial control of English towns may have had a constraining influence, in contrast to the relative autonomy of continental cities.
5a H.S. Bennett, Life on the English Manor: A study of peasant conditions 1150-1400, Cambridge: University Press, 1938; the quotation is from p. 291.
5b M. Bateson, Mediaeval England: English Feudal Society from the Norman Conquest to the Middle of the Fourteenth Century, New York: G.P. Putnam's Sons, 1904, p. 262.
6 A. H. Thomas, ed., Calendar of the Plea and Memoranda Rolls of the City of London, vol.2 (1929), p.xxiv. Merewether and Stephens, op.cit., p.613, had already noted that it was a common error to confuse freedom as a personal status with the urban freedom, in the sense of the chartered privileges associated with citizenship, an error to which even Ballard could fall prey.
7 Alice Green, Town Life in the Fifteenth Century, New York: MacMillan, 1894, vol.1, p.174; Gross, loc.cit.
8 For instance, Maurice Beresford, New Towns of the Middle Ages: Town Plantation in England, Wales and Gascony, London: Butterworth Press, 1967, p.191; Sandra Raban, England under Edward I and Edward II, Oxford: Blackwell, 2000, p.45. Although Beresford assumed that 'free air' was an inherent attribute of towns or at least those with liber burgus status he was conscious of a later hardening of attitude against it on the part of urban rulers (Ibid. pp.207-08).
9 For example, Richard Holt's contribution to The Cambridge Urban History of Britain, volume 1: 600-1540, ed. D.M. Palliser, Cambridge: University Press, 2000, p.86, notes vaguely that town air made free "only up to a point".
10 Use of villeinage in a legalistic sense and serfdom as a social phenomenon was helpful, for example, to Paul Hyams for the purpose of his study King, Lords and Peasants in Medieval England: The Common Law of Villeinage in the Twelfth and Thirteenth Centuries, Oxford: Clarendon Press, 1980.
11 These processes and variations are complex, difficult to summarize without misrepresentation, and remain a matter for debate among historians, generating an extensive literature. Discussion in more detail than is possible here can be found in works such as: David Pelteret, Slavery in Early Mediaeval England, Woodbridge: Boydell Press,1995; Marc Bloch, Slavery and Serfdom in the Middle Ages: Selected Essays, Berkeley: University of California Press, 1975; and R.H. Hilton, The Decline of Serfdom in Medieval England, 2nd.ed., London: MacMillan Press, 1983; and Zvi Razi, "Serfdom and Freedom in Medieval England: A Reply to the Revisionists," Past and Present, no. 195, suppl 2, (2007), 182-187; as well as classic treatments such as in Essay 1 of F. W. Maitland, Domesday Book and Beyond, Cambridge: University Press, 1907.
12 Recounted by Hyams, op.cit., p. 225.
13 Gross, op.cit., vol.2, pp. 123-24, 236-37
14 Charles Johnson, "The oldest version of the customs of Newcastle Upon Tyne," Archaeologia Aeliana, 4th series, vol.1 (1925), p.170; Adolphus Ballard and James Tait, eds. British Borough Charters 1216-1307, Cambridge: University Press, 1923, p.141.
15 J. A. Raftis, Tenure and Mobility: Studies in the Social History of the Mediaeval English Village, Toronto: Pontifical Institute of Mediaeval Studies, 1964, p.129. He notes (pp.139-141, 150) that emigration of abbey serfs, both licensed and (even more so) unlicensed, occurred frequently, that licences were readily granted to those agreeing to pay the annual fee, and that physical coercion to retrieve fugitives is rarely evidenced. See also James Masschaele, Peasants, Merchants, and Markets: Inland Trade in Medieval England, 1150-1350, New York: St. Martin's Press, 1997, p.205, identifying peasant journeys within Huntingdonshire as part of the carrying services of villeinage.
16 J.A. Raftis, Peasant Economic Development within the English Manorial System, Montreal: McGill-Queen's University Press, 1996, pp.99, 103; Calendar of Inquisitions Miscellaneous, vol.2, H.M.S.O, 1916, p.34.
17 A couple of illustrative cases are given in Christopher Dyer, Making a Living in the Middle Ages, New Haven: Yale University Press, 2002. p.194.
18 The stipulation of the Assize has been pointed at as evidence of towns being a destination for fugitive serfs (Hyams, op. cit., pp.168, p. 236) although the primary concern of the law is with criminals, actual or potential. Hilton, reported in David Postles, "Migration and Mobility in a Less Mature Economy: English internal migration 1200-1350", Social History, vol.25 (2000), p.294, has observed that hucksters provided lodgings for some of the female immigrants into the small town of Halesowen in late thirteenth and early fourteenth centuries.
18a Essex Record Office, D/DU 565/2 m.5r.
18b Essex Record Office, D/DP M29 mm.4-5; John Amphlett, ed.. Court rolls of the manor of Hales, 1272-1307, Worcestershire Historical Society, 1910, pt.1, pp. viii, 153, 230.
18c Calendar of Inquisitions Miscellaneous vol.2, H.M.S.O., 1916, p.34. See also p.473, for an inquisition (1344) on the Isle of Wight which found that a young serf of the manor of Newtown had absconded with his goods to Newport and, during the two years he had been there had bought himself a home and some arable land. Why the fugitive chose the long-established inland market centre of Newport over the episcopal-founded new town at Newtown, on the coast, we can only speculate. Newport was several miles away from the manor and had a relatively large population within which the fugitive may have hoped to be less conspicuous; it also had chartered privileges granted by the Earl of Devon, whose aim was to foster commerce, an effort that had some success, for Newport was the most prosperous town on the island. Newtown, although possessed of a charter granting it the same liberties as Taunton (not known to include 'free air'), was under the thumb of a more conservative lord and, being more a port than a market, had difficulty competing with Yarmouth and Southampton.
19 Hyams, op. cit., pp.29 and 224. In what appears to be a rare occurrence, lords might cooperate to preserve some rights over their extraneous tenants. The cartulary of Lacock Abbey records an agreement of the 1230s between its prioress and the abbot and convent of Cirencester Abbey, in regard to Lacock's manor of Hatherop (near Cirencester); one item of this agreement over jurisdictions specified that if anyone normally answerable to the abbot's court had resided at Hatherop for more than a year and a day without licence of the abbot's bailiffs, any amercements of that individual in the manorial court of Hatherop would be turned over to the abbot. W. Knowles, Annals and Antiquities of Lacock Abbey, London, 1835, p.xxxviii. It will be noted that the aim here was to preserve control over profits from, rather than the persons of, the individuals implicated, and that no change in personal status was involved, nor were either of the authorities involved urban indeed, it is hard to imagine that any borough authority would have reached such an agreement with a manorial lord.
20 Ballard and Tait, op.cit., pp. lxxx, 142-44; Beresford, op.cit., p.55.
21 Lynn H. Nelson, The Normans in South Wales,1070-1171, Austin:: University of Texas Press, 1965, pp.29-30, 168; Mary Bateson, "The Laws of Breteuil," English Historical Review, vol.16 (1901), pp.308, 335-36; David M. Palliser, Towns and Local Communities in Medieval and Early Modern England, Aldershot: Ashgate,2006, p.VIII - 185; Holt, op.cit., p. 99; Ralph A. Griffiths, "Wales and the Marches," in The Cambridge Urban History of Britain, volume 1, pp.681-83, 695-96. My characterization of urban Wales ought properly to be qualified by noting that even a small town could have a regional trade role that may be deemed important.
22 All these matters are discussed, in more detail than is possible here, by Robert S. Hoyt, The Royal Demesne in English Constitutional History: 1066-1272, Ithaca: Cornell University Press, 1950, and by B. P. Wolffe, The Royal Demesne in English History, London: George Allen & Unwin, 1971.
23 G.O. Sayles, The Medieval Foundations of England, New York: A.S. Barnes, 1950, pp.328-29; Hyams, op.cit., pp.151-60.
24 D.G. Hall, ed., The treatise on the laws and customs of the realm of England commonly called Glanvill, London: Thomas Nelson, 1965, hereafter cited as Glanvill.
25 Samuel Thorne, ed., Bracton on the Laws and Customs of England, Cambridge: Harvard University Press, 1968-77, hereafter cited as Bracton.
26 Francis Morgan Nichols, ed., Britton, Oxford: Clarendon Press, 1865; H.G. Richardson and G.O. Sayles, eds., Fleta, Selden Society, vol.72 (1953), hereafter cited as Fleta; W.J. Whittaker, ed. The Mirror of Justices, Selden Society, vol.7 (1873).
27 Hyams, op.cit., p.186; Anthony Musson, Medieval Law in Context: The growth of legal consciousness from Magna Carta to the Peasants' Revolt, Manchester: University Press, 2001, p.87
28 op.cit., p.222.
29 L. J. Downer, ed., Leges Henrici Primi, Oxford: Clarendon Press, 1972; he posits a creation date of ca. 1117, and the author a French churchman with some training in, or experience of, the law and holding a minor royal office in England.
30 The pertinent chapters of the Leges are 68,2, 80,1, and 80,3a; see also 38,1. The author appears to be using 'burgus' for both towns and fortifications, most of the ancient burhs not originally established on urban or urbanizing sites having, by the time of Henry I, either become non-military or disused.
31 H.G. Richardson and G.O. Sayles, Law and Legislation from Aethelbert to Magna Carta, Edinburgh: University Press, 1966, pp.41-49; Downer, op.cit., p.6; Bateson, op.cit., p.501; Pollock and Maitland, op.cit., p.649. The clause from the Leis Willelme subsequently formed part of London's defence of its claim to 'free air'.
32 Merewether and Stephens, op.cit., p. 349; Hyams, op.cit., p.223.
33 "si quis natiuus quiete per unum annum et diem in aliqua villa privilegiata manserit ita quod in eorum communam scilicet gildam tanquam civis receptus fuerit, eo ipso a villenagio liberatur." Glanvill, p.58. This comes in Book V, dealing with pleas concerning status, including an accusation of servility. The only other ways in which Glanvill allows that a serf could gain freedom was to have his (or her) lord disclaim all right in the person, or give or sell the serf to someone who will make the same disclaimer.
34 "quia manentes in civitate aliqua vel villa privilegiata vel dominico domini regis per unum annum et unum diem sine clamio." Bracton, vol.3, p.85, reiterated slightly more concisely on p.104. The matter is addressed not as part of the discussion of personal status, but in the section on the Assize of Novel Disseisin.
35 Gross, op.cit., vol.1, pp.102-03; James Tait, The Medieval English Borough, Manchester: University Press, 1936, pp.223-24; Hall, op.cit., p.58.
36 Nichols, op.cit., vol.1, p.201; see also p.209.
37 Fleta, p.173; Whittaker, op.cit., p.78.
38 Hyams, op.cit., p.83. In the early thirteenth century we have to think of the common law, and of courts' interpretation of it, as a potentially moving target.
39 "si aliquis manserit in civitate mea Lincol' per annum et unum diem sine calumpnia alicujus calumpniatoris, et dederit consuetudines civitatis, et cives poterint monstrare per leges et consuetudines civitatis quod calumpniator extitit in regione Anglie et non calumpniatus est eum; ex tunc ut in antea remaneat in pace in civitate mea Lincol' sicut civis meus sine recto." Historical Manuscripts Commission, Fourteenth report Appendix pt. 8 (1895), p.2. Ballard proposed placito as a better reading than recto.
40 Adolphus Ballard, ed. British Borough Charters 1042-1216, Cambridge: University Press,1913, p. 104; Mary Bateson, ed. Borough Customs, vol.1, Selden Society, vol.18 (1904), pp. xli-xlii; Neither Richard's charter of 1189 nor that of John in 1200 grants the 'free air' clause; however, Northampton was given a blanket grant of London liberties. Christopher Markham, ed., The Records of the Borough of Northampton, Northampton Corporation, 1898, vol.1, p.220 gives the fifteenth century English translation.
41 Mary Bateson, ed. Borough Customs, vol. 2, Selden Society, vol.21 (1906), p.89.
42 "Si rusticus in burgo veniat manere et ibi per annum unum et diem sicut burgensis maneat in burgo ex toto remaneat nisi prius ab ipso vel domino suo prelocutum sit ad terminum remanere." Johnson, loc.cit.
43 Ibid., p.176; my translation.
44 My translation. "Si aliquis natiuus alicuius in prefata villa manserit, et terram in ea tenuerit, et fuerit in prefata gilda et hansa et lot et scot cum eisdem burgensibus per unum annum et unum diem, deinceps ne possit repeti a Domino suo, sed in eadem liber permaneat.." Bateson, "Laws of Breteuil", p.496; see also Bateson, Borough Customs, vol.1, p. xlvii.
45 Ballard and Tait, Borough Charters, pp. 136-37; H. A. Merewether, Report of the Case of the Borough of West Looe, in the county of Cornwall, London, 1823, p.32.
46 Merewether, loc. cit.; Calendar of Patent Rolls, 1324-1327, H.M.S.O., 1904, p.28 (hereafter cited as CPR). Possibly this statement is associated with a perception that this liberty was part and parcel of a grant of liber burgus status, as already mentioned.
47 Bateson, "Laws of Breteuil", passim.
48 Nelson, op. cit., pp.30-31, 168-70.
49 Adolphus Ballard, "The Law of Breteuil", English Historical Review, vol.30 (1915), pp. 646-658; Morley de Wolf Hemmeon, Burgage Tenure in Medieval England, Cambridge: Harvard U. Press, 1914, pp.166-71. See also Tait, op. cit., pp.351-52.
50 Bateson, "Laws of Breteuil", p.306. The tentative suggestion by Tait op. cit., p.85, that the 1086 instance of an Ipswich burgess described as a serf might reflect a free air enfranchisement was highly hypothetical; he preferred the interpretation of a degradation in status from free burgess to serf, but did not consider the possibility of a serf who had been given his lord's permission to reside in a town and then been lumped in, by the Domesday record, with other burgesses over whom the lord had sake and soke.
51 op.cit., vol.1, pp. 245-57. Copying with adaptations could also occur in the case of custumals, but instances are far fewer and (except perhaps in the case of the Cinque Ports) probably ad hoc, rather than the almost systematic fashion that is discernible in the case of charters of liberties.
52 Reginald R. Sharpe, ed. Calendar of Letter-Books... of the City of London. Letter-Book K, London, 1911, pp. 80, 90-91; this series (1899-1911) is hereafter cited as Letter-Book. Neither the book of laws nor any original of the Conqueror's charter, if indeed it existed, are extant.
53 "si serui permanserint sine calumpnia per annum et diem in civitatibus nostris vel in burgis nostris muro uallatis uel in castellis nostris, a die illa liberi homines efficiuntur, et liberi a iugo seruitutis sue sint in perpetuum". Felix Liebermann, Die Gesetze der Angelsachsen, vol.1 (1903) p. 491. The preceding clause specified the procedure for voluntary emancipation by serf-owners. A more recent opinion is that the London Collection was planned and executed in the years surrounding the grant of Magna Carta (1215); Derek Keene, "Text, visualisation and politics: London 1150-1250", Transactions of the Royal Historical Society, vol.18 (2008), pp. 80-81.
54 "Si legalis homo de foris in civitatem uenerit et per annum et diem unum absque calumpnia ibidem manserit, calumpniatori non respondeat, sed ad libertatem ciuitatis, si uoluerit, remaneat." Mary Bateson, "A London Municipal Collection in the Reign of John", English Historical Review, vol.17 (1902), p.714. See also Martin Weinbaum, London unter Eduard I. und II., vol.2, Stuttgart: W. Kohlhammer, 1933, p.70. Some other clauses in this section of the collection, presented under the gneral rubric "certain customs or liberties of the city", can be associated with privileges granted in royal charters of the mid-twelfth century. Keene, op.cit., pp.83-91 offers an interesting discussion of the political context of the compilation.
55 Hoyt, op.cit., pp.84, 92, 171-74. Essentially, ancient demesne was a sub-set of royal demesne.
56 Pollock and Maitland, loc.cit.; Hoyt, op.cit., pp. 2-3, 115-19, 178-91; Wolffe, op.cit., pp.19-26; Hyams, op. cit., pp. 246-47.
57 Hyams, op. cit., p.168.
58a E.M. Thompson, "A note on the freedom of the city of Sarum", Wiltshire Notes & Queries, vol.4 (1902), pp.117-18. Alwardbury must be an error for Alderbury. Note that although New Salisbury was a mediatized borough, its founding bishop was part of the regency group at the time the royal charter was granted, and had doubtless taken advantage of his position to obtain a charter that gave his foundation desirable privileges while protecting his own feudal authority.
58b Based on a tabulation of founders in M.W. Beresford and H.P.R. Finberg, English Medieval Boroughs: A Handlist, Newton Abbot: David & Charles, 1973, pp.40-43, these figures can only be impressionistic, as lordships of some towns changed hands periodically.
59 Tait, op. cit., p.206.
60 Hyams, op. cit., pp. 66, 167-69; A. E. Bland, P. A. Brown and R. H. Tawney, eds., English Economic History: Select Documents, London: G. Bell and Sons, 1914, p.125.
61 Bracton, vol.2, p.36; Hyams, op. cit., p.30.
62 Bland, Brown and Tawney, op. cit., pp.73-74; Essex Record Office, D/DPr66, D/DPr91. The fugitive in Colchester, named William son of Gosselin the Reeve, may well be the William Gosse who acquired citizenship at Colchester in 1406/07, claiming to be a Witham man, for he was later identified as a resident of St. Giles' parish; W. Gurney Benham, ed., The Oath Book or Red Parchment Book of Colchester, Colchester, 1907, pp. 92, 126. Orders to arrest him continued to be issued through the 1413 sessions, but were then dropped after there was a change in lordship, though revived briefly in 1418-19 and again in 1430 and 1465 perhaps just to keep the claim alive, for there can have been little prospect of retrieval by that time between long absences from the record. While the trail to the original escapees was still relatively warm, a third member of the same family was identified as being at Woolpit and a more recent escapee at Lavenham, so the bailiff was despatched to those places (both in Suffolk) to see if arrests could be effected; Essex Record Office D/DPr67. See also the history of two Chelmsford families of which several members removed themselves from their manor, with varying degrees of success, reconstructed by Hilda Grieve The Sleepers and the Shadows. Chelmsford: a town, its people and its past, Essex Record Office Publication no. 100, vol.1 (1988), pp. 49-50. Pontefract, whose Norman mesne lord, fostering the development of a small Domesday borough, had in 1194 modelled its charter privileges on those of royal Grimsby (which included that any purchaser of a residence there was to have the degree of freedom of a burgess), was also identified in 1275, during a broad-ranging manhunt by officials of the manor of Wakefield, as a haven for four fugitives: a man and his two sisters, and a second man who is explicitly stated as having fled without licence, thus depriving the manorial lord (the Earl of Warenne) of a revenue of 6d. a year; it was ordered they be arrested if they could be found. Seven other serfs were presented at the same time as living within the town of Wakefield, one described as a tailor and another as a merchant of the borough there (suggesting he might claim burgess status); but far less concern seems to have been felt about these cases (beyond noting the change in residence) and, even though arrests might have been feasible, none were deemed necessary, presumably because the earl was also lord of the borough and so he would continue to earn revenues from manorial tenants who relocated there. William Baildon, Court Rolls of the Manor of Wakefield, vol.I, Yorkshire Archaeological Society Record Series, vol.29 (1900), pp.130-32; Postles, op. cit., p.295. While general sweeps may have been felt necessary from time to time, pursuit of individual escapees was perhaps not considered worthwhile on manors where there was ample labour available or no real loss to the lord. Perhaps this was the case with several fugitive tenants of a Shaftesbury abbey manor who were identified, in a steward's survey (ca.1170), as residing at Wareham; David. Hinton. "Demography: from Domesday and beyond," Journal of Medieval History, vol.39 (2013), p.171. Wareham was a Domesday borough and port town as yet unchartered but showing signs, in the late twelfth century, of commercial revitalization following adversity during the Anarchy, a confused period which must have provided opportunity for many escapees for instance, Henry II granted the Augustinian priory of St. Denis at Southampton that it could reclaim any fugitive serfs, wherever found, who had taken flight since Henry I's death. Whether any attempt had been made by Shaftesbury abbey's stewards to reclaim fugitives whose whereabouts were evidently known, we are ignorant; but at the early date of the Wareham case both the financial incentive to take action and the clarity of legal recourse may have been lacking, while the abbey may have been reluctant to risk antagonizing the lord of the town (the powerful earls of Gloucester). Things changed later as the law became better defined and efforts to reclaim fugitives might hope at least to force them to pay chevage. Other than the cases mentioned above, reports of escapees or relocations are rare in Wakefield manor rolls, and in 1309 we hear of German the Gardyner paying a relatively modest fee for licence to take up a Wakefield burgage and thereby acquire the status of a free burgess; it was noted he would pay 3s. annually in rent to the lord's borough, which may have more than made up for any loss the lord incurred from the change in status.
63 Glanvill, p.141; Bracton, loc. cit.; Pollock and Maitland, loc. cit.; see also Hyams, op. cit., pp. 137-38.
64 Nichols, op. cit., vol.1, p.200.
65 F. W. Maitland, "Possession for Year and Day", Collected Papers of Frederic William Maitland, ed. H. A. L. Fisher, Cambridge: University Press, 1911, vol.2, pp.68-70; Bracton, vol.2, pp. 363-66, 400, vol.3, p.389, vol.4, pp.75, 91; "Townships: Manchester (part 2 of 2)", A History of the County of Lancaster: vol. 4 (1911), pp. 230-251, URL: http://www.british-history.ac.uk/report.aspx?compid=41410, date accessed: 07 October 2008; CPR, 1247-1258, p.196, 1292-1301, pp. 56-57, 1301-1307, p.95, 1317-1321, pp. 89-90, 605-06.
66 Maitland, "Possession for Year and Day", pp.73, 78; Merewether and Stephens, op. cit., p.22.
67 Maitland, "Possession for Year and Day", p.65. It would seem simpler, however, to interpret the added day as a wish to ensure that a full year elapsed before rights were extinguished.
68 Hyams op. cit., pp. 227-30 traces the evolution of the writ, but allows that, due to sparsity of evidence, the process is conjectural.
69 Hyams, op. cit., pp.162-63; Bennett, op. cit., pp.309-10 discusses not only de libertate probanda but also the writ of de homine replegiando as providing temporary respite for a recaptured serf.
70 William Hudson, ed., Leet Jurisdiction in the City of Norwich, Selden Society, vol.5 (1892), pp.lxxxvii-lxxxviii. William Hudson, "Notes about Norwich before the close of the Thirteenth Century," Norfolk Archaeology, vol.12 (1895), pp.75-76, 79-82.
71 Green, loc cit.
72 CPR, 1266-1272, p. 270; The Manuscripts of Lincoln, Bury St. Edmunds etc.: Fourteenth report, Appendix, Part VIII, Historical Manuscripts Commission, 1895, p.126.
73 William Hudson and J.C. Tingey eds., Records of the City of Norwich, Norwich: Jarrold & Sons, 1906-10, vol.1, pp.177-79; Maud Sellers, ed. York Memorandum Book, Part I, Surtees Society, vol.120 (1911), p.46. Holcombe Ingleby, ed., The Red Register of King's Lynn, vol.2, King's Lynn: Thew & Son, 1922, p.26.
74 Bateson, Borough Customs, vol.2, p.89.
75 Explicit at Plympton, Cloyne, Bridgetown Pomeroy and Baschurch, and implicit at Welshpool; Ballard and Tait, op.cit., pp. 137, 141, 144; Martin Weinbaum, ed., British Borough Charters 1307-1660, Cambridge: University Press, 1943, p.95. Beresford, New Towns of the Middle Ages, p.208, notes that such restrictions were more common in charters to towns founded in English-controlled Gascony, where there seems to have been more vociferous opposition to the proliferation of planted towns, in part because they drew servile members of the labour force away from manorial duties.
76 Ballard, Borough Charters, p.li.
77 CPR 1292-1301, p.500.
78 Pollock and Maitland, op. cit., vol.1, pp.648-49; Hyams op. cit., p.169; Bracton, vol.2, p.36; Alfred Horwood, ed., Year Books of the Reign of King Edward the First, years XXI and XXII, London, 1873, p.448. See also Thomas, loc.cit..
79 Hyams, op. cit., p. 132.
80 Ballard and Tait, op. cit., pp.143-44; Weinbaum, op. cit., pp. 71, 95-98; The Oath Book or Red Parchment Book of Colchester, p.13; A.R. Myers, ed., English Historical Documents, 1327-1485, London: Spottiswoode, 1969, p.570.
81 Defined in much the same terms used in the 'free air' clause. W.H. Black and G.M. Hills, "The Hereford municipal records and the customs of Hereford," Journal of the Archaeological Association, vol.27 (1871), p. 166.
82 Letter-Book A, p. 170.
83 Gross, op.cit., vol.2, p. 164; Letter-Book A, p.170; Letter-Book C, p.148; Letter-Book H, pp.309-10; Thomas Riley, ed., Munimenta Gildhallae Londoniensis, vol. I: Liber Albus, London, 1859, pp.33-34. 452; Thomas, op.cit., pp.xxv-xxvi.
84a Despite the impassioned resistance of the townsmen, following the complainant's appeal to the king an inquisition had to be held in the borough as to the accused's status, with a jury that included servile tenants of Malteby. Richard Howlett, and with evidence that included a detailed account of the alleged serf's genealogy. "Villeinage in Norfolk, illustrated by a Memoir of the Life of Sir Robert de Salle, bondsman and King's knight," The Norfolk Antiquarian Miscellany, 2nd series, pt.1 (1906), pp.14-16. There is no clear evidence for a genealogical link between Sir Robert de Salle (fl. 1360-80) and the like-named accused serf, although the knight was, according to Froissart and other chroniclers, believed of low-born, and perhaps servile, origins. Were we to take at face value Froissart's colourful, but assumption-based, account of the confrontation between Sir Robert and the Norfolk rebels of 1381, we must believe that the latter expected the former to be true to his roots and make common cause with them. However, the great motivators in medieval society were self-interest, as opposed to class loyalty, and socio-economic self-improvement. A reminder of his low birth would have been the last thing Sir Robert wanted to hear and, when compounded with an invitation to betray the source of his advancement, could have plausibly spurred him to the enraged, if ill-advised, rebuke of the rebels which Froissart attributes to him.
84b Grieve, op. cit., p. 48.
85 H.E. Salter, ed., The Cartulary of the Abbey of Eynsham, volume 2, Oxford Historical Society, volume 51 (1908), pp.xxvi-xxvii; Philip Schofield, Peasant and Community in Medieval England, 1200-1600, New York: Palgrave MacMillan, 2003, pp.111-12; Joan Thirsk et al., The Agrarian History of England and Wales, 1348-1500, Cambridge: University Press, 1991, p.767; Raftis, Tenure and Mobility, p.143; Hilton, op.cit., pp.29-36 ; Merewether and Stephens, op.cit., pp. 624-25, 669, 688, 770; Hyams, op.cit., p.207; Palliser, op.cit., p.VIII-185. Of the dwindling number of families of servile status belonging to the Norfolk manor of Forncett in the fifteenth and sixteenth centuries numerous members no longer lived on the manor, but only a few appear to have resorted to flight, and most are found still preferring to pay chevage even though some had established themselves in Norwich or London rather than totally abandon their property and risk the possible repercussions (social, economic, and legal) of illicit escape; Frances Davenport, The Economic Development of a Norfolk Manor, 1086-1565, Cambridge University Press, 1906, pp.88-97.
86 Hudson and Tingey, op.cit., vol.2, pp.216-25; John Aberth, Criminal Churchmen in the Age of Edward III: The Case of Bishop Thomas de Lisle, Pennsylvania State University Press, 1996, pp.95-115, 239-40. Hilton, op.cit., pp.29-30, 51-53; Hyams, op. cit., p.206. We may perhaps contrast the Spynk case with a similar complaint a century later made by London attorney William Dodesham, who accused William Michell, a Somerset manorial lord, of intimidation and extortion through efforts to waylay and imprison him, thereby obstructing his ability to carry on his business in the city. Michell's defence was that Dodesham was his villein and that it was therefore his right to attempt to recapture him, although that effort had been made only in the vicinity of the manor, not in London itself. After taking advice, the royal justices decided that Michell's defence was insufficient to defeat Dodesham's claim for damages; Michell was arrested and put in Fleet prison. 'CP40/745: Easter term 1447', Court of common pleas: The National Archives, CP40: 1399-1500 (2010). URL: http://www.british-history.ac.uk/report.aspx?compid=118112, date accessed: 25 September 2011.
87 Calendar of Close Rolls 1349-1354, H.M.S.O., 1906, p.609
88 Bland, Brown and Tawney, op. cit., pp.98-101; J. Latimer, "Some Curious Incidents in Bristol History", Transactions of the Bristol and Gloucestershire Archaeological Society, vol.22 (1899), pp.284-85.
89 This is to assume (bearing in mind the case of William de Colton, already mentioned) that Spynk had formally taken up citizenship; although his contract with the city describes him as a citizen, his name is missing from the earliest (but incomplete) records of admissions compiled, ironically, in a paper volume that Spynk had himself donated to the city, with the intent that his contract be recorded among other municipal memoranda.
90 Also by a statement made in 1309 by William Herle, a serjeant-at-law of the Common Bench, that at the Creation men were free and that the law sufficiently favours liberty that anyone once found free in a court of record should henceforth be dealt with as free, unless he had later chosen to submit to servility. This was in the context of a suit of novel disseisin, in which the defendant argued the plaintiff was his villein and so had no right to be heard, but the plaintiff responded that he had already successfully pursued a plea of mort d'ancestor in a county eyre, which he could not have done if unfree. F.W. Maitland, ed. Year Books of Edward II, vol. III, Selden Society, 1905, pp.93-94. It was also the case, on the other hand, that any man admitting in a court of record to being a serf compromised any future chance using the courts to win his freedom, and some lords brought known flight risks into court just to obtain such documented confessions; Bennett, op. cit., pp. 311-12.
91 Furthermore, although early Christian patristic writings portrayed subjection of some men to others as a sin subsequent to the Fall, by the latter half of the thirteenth century political theorists, under Aristotelian influence, direct or indirect, could argue that while the pure form of slavery (in which people were treated merely as tools) might be a perversion, most forms of subjection were an inevitable consequence of natural inequalities, requiring some men to be masters and others to serve them.
92 Hyams, op. cit., pp.xxi, 123, 160, 203-05; Fleta, p. 172.
93 Calendar of the Charter Rolls, vol.1, H.M.S.O., 1903, pp. 350, 372; Bennett, op. cit., p.294.
94 Bennett, op. cit., pp.296-97.
95 We may note that some of the more important early recipients, such as Nottingham, Lincoln, and Hereford, were places where new burghal foundations had been grafted by the Normans onto existing towns, while Newcastle-upon-Tyne (one of England's wealthiest towns by 1334) was a new, or at least recent, foundation when it was granted the privilege.
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