The Hall of Waltheof/Chapter XVI


 * Unter sich standen die freien, ausser dem familienband, in einer festen gemeindeverbindung, in gesammtbtirgschaft und rechtsgenossenschaft. Nur in der gemeinde hatte der freie recht und frieden, zu welcher er als genosse gehorte.—Grimm's R. A. 1854, p. 291.

N the Duke of Norfolk's office in Sheffield are various plans made in the last century which delineate property in Sheffield. In examining them I was struck with the way in which pieces of land called "town lands" are intermixed with other property in the old parts of the town, for example in and near Waingate, Broad lane, Carver street, Balm green, and King street. And I noticed that a piece of land called "the Isle," at the foot of Lady's Bridge, is described as the property of "The Burgesses and Free Tenants of Sheffield." To one possessing an acquaintance with the origin and development of village communities an inspection of these plans would at once suggest that these "town lands" are pieces of land which were set apart in very early times by a community of freeholders for the public benefit of the "town," meaning the whole body of freeholders.

The "town lands" of Sheffield are now vested in a body known by the modern name of "Town Trustees," and it will be the object of this chapter to exhibit the true origin of their "trust," and the purposes to which the lands of the "trust" were originally applied.

It will be best to trace the history of the "Town Trust" backwards, as one would trace a pedigree.

Soon after the Civil Wars doubts were entertained by the then lessees of the "town lands" as to the title of the persons who granted their leases. The leases, it appears, had been granted by a number of persons who called themselves "The Burghers or major part of the Burghers of Sheffield," and sometimes by the name of "The Burghers or major part of the Burghers and Free Tenants of Sheffield," and "by various names and descriptions." These doubts at length culminated in the refusal of the tenants, seventy-nine in number, to pay rent, and in an attempt to retain the lands leased or demised by the Burghers as their own estates in fee simple. But this attempt was hardly serious, and both tenants and lessors became in the end willing that the demised lands should be made subject to a declaration of trust for various public uses. They saw no doubt that it was just that the rents should be applied, as in past times, to the public service of the town. The real and only difficulty was that the estates seemed to have no definite legal owners, and, as they belonged to the whole body of freeholders or burgesses, it was desirable that a vesting order should be made, so that a given number of freeholders might act in the name of the whole, and be duly appointed for that purpose by the freeholders. Accordingly an application was made to the Court of Chancery, and, notice having been served upon all parties interested, a decree was made in the year 1681, which for the first time appeared to bring these lands within the description of a charity. "The property," says Hunter, "has been accumulated by the benefactions of various individuals, amongst whom it is probable were the Furnivals, and particularly that Thomas Furnival who gave the town its charter. The gifts were made by them not exactly for the purposes to which we apply the term charitable, but rather for public uses." Hunter does not, however, give a single instance of any grant or donation to the Burgesses. As I shall presently show the "town lands" were never treated as a charity until the Court of Chancery in 1681 impressed them with the appearance of a charity. I say impressed them with the appearance of a charity because, notwithstanding the decree of charitable uses, the "town lands" are not held on charitable uses now, though recent gifts, such as the Bailey bequest, may be regarded as such. It may well have been that in 1681 the origin and nature of these "town lands" had been utterly forgotten. Nor had the history and development of village communities and municipal corporations been investigated in Hunter's time. It was almost inevitable therefore that he should treat the property as a charity, though he does so with caution and diffidence. Mr. Leader who had copied large portions of the accounts and minutes of this ancient guild was the first to draw public attention to its true nature and objects.

I have failed to discover that any evidence exists which shows that the Burgery, now known as the "Town Trustees," acquired their lands in Sheffield by private grant or by testamentary disposition. By the courtesy of C. E. Vickers, Esq., Law Clerk to the "Town Trustees," I have been permitted to examine the ancient muniments and documents in the possession of that body. I did not find any instance of a grant or testamentary gift of land to the "Town Trustees," or to their predecessors, except purchases of land in Sheffield or in the neighbourhood made out of the income of the "Town Trustees" during the last century. Such grants or gifts may nevertheless have been made.

The Furnival Charter indeed appears at first sight to be a grant or release in fee to the whole body of Free Tenants or Burgesses of lands which they held of the grantor, their lord. But it will be presently seen that this charter was not a grant in fee simple but in fee ferm, and that it was a composition by the Burgesses with the manorial lord for the payment by the Burgesses to the lord at a fixed rate of certain taxes or dues.

This statement must be considered in detail.

The growth of the English borough has been examined with much care by Bishop Stubbs, and Sheffield was, as I am about to show, a borough in the thirteenth century. Documents have been preserved dating from the year 1566 in which the holders of the "town lands" in Sheffield are called "the burgesses," and in which the whole company of freeholders or burgesses is described as "the Burgery."

In 1566 and for many years afterwards we find "the Burgery" receiving the rents of the "town lands" through their Collector, and occasionally by the hands of "Master Bailiff," who was in fact the Mayor or chief officer of the borough, from a considerable body of tenants. The Bailiff of Sheffield is mentioned in a deed of 1434 (Hunter's Hallamshire, p. 42). In the accounts of the Burgery under the year 1574 I find mention of "William Deckenson, Bayliffe, and the rest of the burgesses" (Leader, ut supra, p. 47) and in 1581 an order is made "by the appointment of Mr. Bayliff and other the Burgesses" (p. 56). The Bailiff is here the Burgomaster, chief magistrate, or mayor of the borough, and not a mere officer of the manorial lord. Subsequently the chief officer was known by the title of Collector, and he was elected yearly. Fuller in his "Worthies," ii, 129, speaks of the "Governour or Baly of the Town." In the index to Rastell's Statutes, 1557, I find mention of "maires, bayliffes, and head officers of cities, boroughes, and townes." In the accounts of the Corporation of Wenlock the chief officer is described in 1604 as "Mr. Bailliff"—(Hist. MSS. ut infra, p. 432). In the Corporation of Eye he bore the same designation. In 1613 the Corporation of Bishop's Castle made an order that "every person or persons of inferior place and condicion lyveing within this borough shall from hensfourth geve cyvile reverence to the baylif and 15 head burgesses for the tyme being, and shall not presume to converse or talk with them in any publick assemblie or otherwise having their heades covered without license." And the same civility had to be extended to the wives of the Head Burgesses.—Hist. MSS. Commission (ut infra), p. 401. The opinion here expressed as to the Bailiff being the chief officer of the borough has been doubted. Although the title has long been discontinued I am bound on the evidence afforded by the published accounts of other old corporations to entertain this view. Soon after the division of the corporation into two sections by the letters Patent of 1554 the title Bailiff was altered to Collector or Town Collector, and this person, like the Bailiff, was elected annually by the Burgesses, as will appear from the extract from their accounts given below. These rents, as the old record shows, were to be employed "at the discretion of the said burgesses," and we find that such rents were expended in making or repairing bridges and highways, in relieving the necessitous, in dealing with criminals, in providing and repairing the public armour, in providing a watch for the safety of the borough, and in doing many useful public services. Here, then, we have, to all intents and purposes, a corporation—though not, until 1554, a chartered corporation—possessed of freehold estates in the town and performing the services usually performed by a Mayor and Corporation. The "Mayor, Aldermen, and Burgesses" of the nineteenth century are the municipal descendants of the Master Bailiff and Burgesses of the sixteenth century. The corporation of 1297 did not so far as is known derive its authority from a royal charter. It existed by force of the common law, which gave the implied consent of the Sovereign, or by prescription, as in the case of the city of London. It grew up, as many old corporations have grown up, with the tacit consent of the Crown, from a body of men who once held their lands in common, and of their own free will devoted a portion of those lands to the public service. It is one of the most curious things in the modern history of Sheffield that its inhabitants should regard their municipal history as dating no further back than the year 1843, when they became vested with the powers of an Act passed in 1835 for the regulation of Municipal Corporations in England and Wales, and that some of their body should have celebrated in 1893 the "jubilee" of an institution of which they had been possessed for so many centuries before. It is abundantly clear from the documents in the possession of the "Town Trustees" that the Burgesses therein mentioned were an ancient corporation, and that it was they who provided local government for the borough. This may be shown from the opening sentences of a book of accounts and memoranda beginning in 1707 which I here quote:

"A Booke of accounts of the estate, stock, and revenues belonging to the Freeholders, Burgasses, or Freetenants of the Towne of Sheffeild in the county of Yorke, begun in the yeare one thousand seven hundred and seven, in the time of Mr. John Fox, Towne Collector.


 * "4th Aprill 1707.

"Memorandum that according to custome within the said town, whereof the memory of man is not to the contrary, at a public meeting appointed for that purpose, whereof public notice was gave by the bellman, the said Mr. John Fox was choose Town Collector by the Freeholders then present, there being then present five and forty Freeholders, to continue in the said office for one yeare, according to the said custom.

"And whereas alsoe, according to immemoriall custome within the said Towne, there has been ust to be a Townes Clerke for entring the townes accounts and other affaires belonging to the said towne, and the Freeholders so often as such place has become vacant by the death of such Townes Clerke or misdeameanour in him have ust to elect another person in the said place (the said place being now vacant by the death of Mr. John Styreing and no other yet chose in his stead according to custome) now there being this thirteenth day of May 1707 ninety Freeholders pwsent at a public meeting at the townes hall, the majority of the said Freeholders have elected Mr. Thomas Wright into the said office of Townes Clerke."

In the accounts of the "Town Trustees" under the year 1566 a payment to William Dycker is recorded for "storinge at the newe halle." This seems to have been the Guild-hall, if I may so call it, or Town Hall, of the Burgesses. The mention of a "new hall" in 1566 implies the previous existence of an older Town Hall. William Harrison in 1637 mentions the "towne hall," and the eleven shops lying beneath it, or forming its basement story, which were let at rents varying from 6s. 8d. to £2 each. The "new hall" therefore seems to have been a large building. In it no doubt "Master Bailiff" and the Burgesses transacted their public business. The accounts of the Burgery show that in 1560 one Robert Lewes paid a fee ferm rent of 7d. "for the new halle." But, like all the other tenants, he merely paid the fee ferm "rent" as occupant, this being a mere tax payable by the occupant. Proof of this will appear below.

That the Burgesses or Free Tenants held their freehold estates previous to 1297—the date of Furnival's charter—is evident from the charter itself, for the grantor therein speaks of "my Free-tenants (Liberi tenentes) of the town of Sheffield," and of "the tofts, lands, and tenements which they hold of me in the said town." What the grantor really does by the charter is to give the fee ferm (feudi firmam) of these lands to the Burgesses or Free Tenants in return for a fixed annual payment, the sum so paid being remitted to the manorial lord as talliage or taxes. As Bishop Stubbs has shown the internal condition of the boroughs at the time of the Doomsday survey, and for some time afterwards, was "but that of any manor in the country; the reeve and his companions, the leet jury as it was afterwards called, being the magistracy, and the constitution strengthened further only by the voluntary association of the local guild, whose members would naturally furnish the counsellors of the leet. The towns so administered were liable to be called on for talliage at the will of the lord, and the townsmen were, in every respect, except wealth and closeness of organization, in the same condition as the villeins of an ordinary demesne. The. first step taken in the direction of emancipation was the purchase, by the tenants, of the firma burgi, that is, the ferm of the dues payable to the lord, or the king, within the borough: instead of being collected severally by the reeve or the sheriff, these were compounded for by a fixed sum, which was paid by the burghers and reapportioned amongst themselves. The grant of the ferm was accompanied by, or implied, an act of emancipation from villein services; and the recipient of the grant was either the leet or the guild, or the same individuals in both capacities." At Sheffield the amount agreed upon by the lord and the burghers was £3 8s. 9¼d., payable half-yearly. We shall be able to form a good idea of the actual value of this sum when we consider that the whole town was rated to the Poll Tax in 1379, or nearly a century afterwards, at £6 11s. 2d. "In 1294," says Bishop Stubbs, "the towns were asked for their contributions by distinct commissions; in 1295 they were summoned regularly to parliament; and althoughthe series of writs is not so complete in the case of the towns as in that of the counties, their right was then recognized, their presence was seen to be indispensable, and the representation has been continuous, or nearly continuous, ever since." Now we have seen that the date of the Furnival charter is 1297, or two years later. It does not appear that Sheffield was direclly represented in Parliament, but it seems that the charter of 1297 was the instrument by which the amount of dues or taxes to be paid by the Burgesses was settled, such amount being probably remitted to the Crown by the lord who represented them in Parliament, or was answerable for the amount. Besides compounding the dues or taxes, Furnival's charter makes provision for the administration of justice within the borough, for the infliction of punishments by a jury composed of the Burgesses themselves, and for exemption from market tolls.

Proof that corporate towns and boroughs were paying taxes in the sixteenth century under the name of "fee fermes" may be obtained from the fact that in 2 Edw. VI. "an act was made for the remitting for iii. yeres of fee fermes payd by any corporate towne or corporacion with diuers clauses concerning that matter." In the following year this remission was altered to one year. This "rent" was often known as "rent of assize." Modern law books give little light on this subject, the definition of "fee-farm-rent" in such books as Wharton's Law Lexicon being obviously wrong. If, then, the guild of Burgesses, now surviving as the "Town Trustees," was not originally and if it is not now a charity, if its lands were not, so far as is known, acquired by testamentary gift or by private grant, and if such lands were not acquired through Furnival's charter, how did the Burgesses acquire them?

There can only be one answer to this question. There are many boroughs in Great Britain which, time out of mind, have held, and yet hold, freehold estates. I might mention, as a famous example, the burghal community of Lauder in Berwickshire, in which there are, or lately were, 105 separate portions of land called Burgess Acres. Doncaster is also a case in point. I might also mention the burgess-community at Malmesbury, in which blood relationship was the basis of membership. In all such cases modern research has proved that the burgess lands have come straight down from a group of men who in remote antiquity held their lands in common, and devoted a portion of such lands to the public service of their community. Instead of levying rates they set apart certain pieces of the lands which they held in common for this purpose.

Hunter has recorded the fact that in 1662 a jury made a return that about 400 dwellings in Sheffield were "of the old burgery." This body of freeholders known as the Burgery was once a well-defined proprietory group of men, holding its lands in common, acting in concert, and united at a remote period by the ties of blood-relationship, and by descent, in theory at least if not in fact, from a common ancestor. It was this close bond of union which made the Burgesses act; together as one man, and which led to the formation by them of rules and ordinances for their common good. And these rules and ordinances, unnoticed and unremembered in literature or in the records of law courts, but surviving in full vigour in the sixteenth century, were as binding on the Burgesses as the decrees of kings or parliaments. The Burgesses were a little democracy of ancient origin, the descendants of a family or families of colonists who before the dawn of our recorded local history had settled by the waters of the Don.

But although the rules and ordinances of the Burgesses—handed down perhaps by tradition instead of being committed to writing—were in full vigour in the sixteenth century, the community had then for the most part lost its primitive character, and, except in theory, the common ownership of its lands then survived only as regards those portions which were required for municipal administration. By a process of change and development which had gone on for a long period the bulk of the land once held in common was then held in several ownership, though nominally, as we shall presently see, the whole of the freehold land belonged to the "town." At an early period the son of a Burgess inherited by inalienable right his father's share in the lands of the burghal community, and in Sheffield, as in other places, lands were appropriated to village servants or officers in return for services rendered by them to the community. At Bradfield there was, as we have seen, a "sowter acre," a name which implies that a shoemaker or tanner once held that acre in return for services rendered to the freeholders or body of freemen. And it is a well-known historical fact that lands were appropriated in this way to various village servants. But with the advance of knowledge and with the development of sounder economic relations it was inevitable that such inconvenient arrangements should slowly die out, and in Sheffield we can now only trace the remains of them in such names as Smith-field and Bailey-field, names which are possibly derived from the public smith, and the chief magistrate or prœpositus of the burghal community, each of whom held land in return for his services. Hence it happened that, as time went on, the village servant ceased to exist, and his estate became in the end absolute. But some services must be rendered to the community as a whole; bridges and roads must be built and repaired, the poor must be cared for, the watchman, or "wait" as he was called in Sheffield, must look after the town by night. And so it came to pass that some lands continued to remain in the hands of the Burgesses or freemen in their common or corporate capacity, whilst alienation was permitted, or could not in the end be prevented, with respect to those lands which, being no longer required for the public use of the Burgesses, became at last unfettered estates in severally. And although alienation from the family was in the end permitted we shall see in the next paragraph that, in theory at least, the town still held the land, and that a freehold estate could only be alienated by the permission of a jury of freeholders. In other words admission to the ancient order of freemen or burgesses could only be obtained by permission of the order itself.

So late as the last century freehold lands in Sheffield were conveyed by the direction of a "jury for the town of Sheffield," and they were expressed to be held "in free and common socage" by fealty and suit of court. The court is, according to the custom, nominally described as the court of the feudal lord, but it was the whole body of Free Tenants or Burgesses which really owned the land, and it was only by the consent of that body that such land could be alienated, the lord being merely the ornamental figure-head, or primus inter pares amongst the freeholders. The following is a copy of an assurance of freehold land passed by "the jury for the town of Sheffield" in the middle of the last century : "Mannor of Sheffield: The Great Court Baron of the most Noble Edward Duke of Norfolke Lord of the said Mannor held there in and for his said Mannor on the Tenth Day of April in the Thirteenth Year of the Reign of our Sovereign Lord George the Second by the Grace of God of Great Britain France and Ireland King defender of the Faith &c. And in the Year of our Lord 1740 Before John Battie, Gent.—Steward there. The Jury there for the Town of Sheffield within the Mannor aforesaid upon their Oath say and Present that John Green of Sheffield aforesaid Mason since the last Great Court hath purchased to him and his Heirs of John Jennings a certain peice or parcell of Land part of a certain Close called     lyeing near Levy Greave within the Mannor aforesaid now in the possession of the said John Green to be held of the Lord of the said Mannor in free and Common Soccage by fealty and Suit of Court And thereupon the said John Green did fealty for the same. Wm BATTIE, Under Steward."

The freeholders of Bradfield, like those of Sheffield, set apart portions of their land for the public service, and these were known as "parish lands." "The people of Bradfield," says Hunter, "have certain lands which were given at a remote period by various benefactors, for public uses, the revenues of which are managed by a body of feoffees, who act under a decree of Lord Chancellor Egerton, in the time of James I."

Other villages in the neighbourhood of Sheffield had their "town lands," or lands appropriated by the whole body of freeholders for the public service. The following is a very interesting

"Rental of the cottages and lands belonging to the Town and Hamlett of Handsworth Woodhouse, due Lady Day, 1730.

We whose names are hereunder written have agreed that the persons above written shall pay the rent above mencioned."

The names of the persons who fixed the amount of rent to be paid by the tenants at Handsworth Woodhouse are not given, but without doubt they were the freeholders or freemen who at a former period held their lands in common, and composed the village community. It is interesting to compare these lands, which are expressly stated to belong to the "town," with the "town lands" of Sheffield. In both cases their origin and purpose were the same, but in Sheffield, as from a much wealthier and more important place, there grew up a body or guild which was in fact a Mayor and Corporation. In 1730 the names of the village officers or servants no longer appear amongst the portions of "town lands" in Handsworth Woodhouse. But in the "church rein," or church strip, we may see a piece of land once set apart for the use of the church, just as, according to Mr. Gomme, in India "church lands" were appropriated by the village community for the temples.

It follows from what has been said in this chapter that the freehold estates of the Burgery, now vested in the "Town Trustees," belong to the freeholders of Sheffield as tenants in common, except, perhaps, such portions of those estates as can be proved by documentary evidence to have been private bequests or grants. The relationship between the "Town Trustees" and the freeholders of Sheffield is that of trustee and cestui que trust, and, except as aforesaid, those freeholders who elect the "Town Trustees" are the owners in undivided shares of all the original freehold estates now vested in, or administered by, the "Town Trustees." And, as fructus scquitur ventrem, the same freeholders are the owners of all other estates, whether real or personal, which the "Town Trustees" have at any time purchased out of income arising from property belonging to them as trustees. How far this relationship between the freeholders and their trustees may have been affected by recent Acts of Parliament I do not pretend to say.