A
Historical Survey
THERE
seems to be no reason to doubt that, at a time anterior to any existing
Scottish legislation, the little village communities which grew around
Royal and Baronial Castles and Religious Houses, or on sites otherwise
suitable, cultivated —with the sanction and largely for the benefit of
their lords— such scanty trade as was then practicable. But their
position was precarious. They were probably in a position of absolute
villenage, and had no rights or privileges save such as the policy or
caprice of their lords allowed. The protection they enjoyed was also
burdened with heavy impositions. But in process of time the Sovereign
and the more powerful nobles came to recognise it to be their interest
to encourage the development of the little trading communities which had
sprung up around them, and this they did by the concession of privileges
in the form largely of monopolies and exclusive dealing. In the
communities thus formed societies known as
hanses
or guilds were instituted, and the privileged members of these
communities, in process of time, claimed the right to administer the
affairs of the burgh in which they existed, to the exclusion of the
humbler classes of craftsmen. But before this stage of development had
been reached, it became obvious to the Sovereign and to the lords, lay
and ecclesiastical, that the prosperity of the trading communities,
established on their respective territories, conduced to their own
advantage, and so it became customary for these communities to obtain
farther concessions of privilege. In grants of these the Crown took the
lead. The burghal communities established on the royal domains were
specially privileged, and, in return for the advantages which they thus
secured, the Crown received, in the shape of ferms or rents, tolls and
customs, important financial advantages, and accessions of strength
through the increase of an industrial vassalage. The baronial superiors,
lay and ecclesiastical, of the burghal communities established on their
territory, seem lo have followed the royal example, but the burghs of
Regality and Barony which were formed under their authority, were
subordinate, in rank, position, and privilege, to those burghs which
held directly of the Crown.
To
the Royal
Burghs attention will first be directed, and
reference will afterwards be made to burghs of Barony and Regality,
Parliamentary burghs, and the modern class of Police burghs.
In
one sense all towns established on the domains of the Crown and held
directly of the Sovereign were Royal Burghs. But our constitutional
writers have held that the essential
criteria
of proper burghs royal are the erection of the burgesses into
communities or municipal corporations, and the grant of property to the
individuals and the community under a permanent feudal tenure, in return
to the Crown for certain fixed rents or
maitts,
and the performance of personal services for the security of the public
peace. In this matured form Royal Burghs existed in the reign of Malcolm
IV. (1153-1165) and his immediate successors, but the charters and
grants to these burghs—the earliest of which now known is of the reign
of William the Lion (1165-1214)—recognise by implication the previous
existence of these burghs as communities connected by common interests.
So
early as the reign of David 1. (1124-1153) that monarch embodied in his
“Laws of the Four Burghs” a code of burghal legislation which shows them
to have been, even then, compact, well-organised bodies, and enables a
distinct conception to be formed of the municipal constitution of the
little trading communities of that time. That code was obviously largely
based on the pre-existing constitution and taws of English boroughs.
Many of its enactments were doubtless recognised and operative in
Scotland before they were thus formally adopted by King David, and
though it was made expressly applicable only to the four burghs of
Berwick, Roxburgh, Edinburgh, and Stirling, there can be little doubt
that it was speedily accepted and recognised as authoritative by the
other burghal communities which then existed, or were subsequently
constituted, and formed the
nuclei
around which the infantile home and foreign trade of the country became
concentrated. The “four burghs” were then doubtless the principal burghs
of the kingdom, and David’s laws were specially addressed to them. But,
as other burghs existed in Scotland, there seems to be little reason to
doubt that these laws gave legislative sanction and authority to much
that was previously recognised and operative in them. This earliest
extant burghal legislation was supplemented by statutes passed in the
time of William the Lion, between 1165 and 1214; by the Statutes of the
Guild of merchants of Berwick, enacted in or before 1249, and speedily
accepted and quoted as authoritative in the Scottish burghs; by
provisions in the treatise known as the
Regiam Majestatem
imported from the English work of Glanvil, and sanctioned by the
Scottish Parliament; and by several other documents which throw light on
the laws and practice of the early burghs of Scotland. These other
documents include (1) the
Constitutiones Nove
or New Constitutions, which are identical with clauses in charters
granted to burghs by William the Lion; (2) a capitular known as
Assisa de Tolloniis
regarding great and small customs levied in Scotland on goods exported
and imported during the reign of Robert the Bruce ; (3) a document
apparently of the latter half of the reign of Robert the Bruce, known as
the Articuli
inquirettdi in Itinere Camerarii, containing
a list of points to be enquired into at the Eyre of the Great
Chamberlain, who had cognisance in early times of all burghal matters;
(4) the Juramenta
Officiariorum—a form of oath to be taken by
the officers of burghs in the reign of King Robert; (5) a capitular
apparently of the end of the fourteenth century known as the
Iter Camerarii,
and containing forms of proceedings connected with the Chamberlain’s
Eyre ; and (6) a record of certain statutes passed by the Court of Four
Burghs held at Stirling in 1405. These, with the charters to the several
burghs, the Statutes of the Scottish Parliament, and the Records of the
Convention of Burghs—the regular series of which, however, commences
only in 1552—are the most authentic materials of Scottish burghal
history.
The
constituent members of these early burghal communities— called
burgesses—consisted
of such persons as were owners of houses, or held, directly of the King,
portions of land within their respective burghs, known as
burrowages,
and they were required on admission to swear fealty to him and to the
bailies and community. Each burgess held his house or possession for
payment annually to the Crown of five pence for each rood of the land
occupied by him. When a burgess was made in respect of land unbuilt
upon, but who possessed other land on which a house existed, he was
entitled to a year within which to build.
If,
however, his house was destroyed by fire or war, and he had other
built-on premises in the burgh, then he might leave the land, on which
his house so destroyed stood, unbuilt upon till he was able to rebuild.
But in every case the King’s ferme or rent had to be paid.
Burgesses were of two classes,
resident
and non-resident—the
latter being distinguished by the name of
rustic
or churl
burgesses, who however did not occupy the same position, or possess the
same rights, as did resident burgesses. In Scotland, as in other parts
of Europe, the rights of burgesses might be acquired by any person—even
the thrall or slave of a baron or knight— by undisputed possession for a
year and a day of a burro wage which he had acquired lawfully and
without challenge in the presence of twelve of his neighbours. After
such possession the right of a burgess to that burrowage could only be
challenged by a claimant who had subsequently attained majority, or had
previously been out of the kingdom. Rustic or churl burgesses were only
entitled to the privileges of burgess-ship within the burgh in which
each had his burrowage.
In
process of time, however, the practice grew up in burghs of admitting
burgesses in respect of other qualifications than the possession of
heritable property—the payment of certain specified fees, and compliance
with other conditions determined from time to time by individual burghs,
or imposed by law. But in every case burgess-ship was, and still
is—whatsoever unauthorised and illegal practice to the contrary may have
crept in in certain burghs—essential to the valid admission to guilds of
merchants, or to craft incorporations, which claim any right to be
regarded as proper burghal institutions, or to be represented specially
in the town council of the burgh in which they exist.
It
would appear that in the oldest burghs in Scotland women were admissible
to burgess-ship, as well as to membership of guilds, but the practice of
so admitting them has long been in desuetude, if indeed the enrolment of
the Baroness Burdett Coutts as an honorary burgess of Edinburgh, and
H.R.H. the Duchess of Fife as an honorary burgess of Glasgow,—following
upon a report as to the ancient practice, by the writer of this paper as
town clerk for the time of both burghs—is not to be regarded as an
exception to the otherwise universal practice of more modern times.
In
royal burghs as originally constituted, every burgess had, as has been
said, to be a proprietor of a burrowage, holding immediately of the
Crown for services of burgh use and wont; and it was as commissioners of
the Crown that the magistrates gave him entry and sasine which were
essential to the completion of his title. This relationship between the
Crown and the burgess continued even after the burgh ceased to lie a
royal burgh, and all burgesses held their lands as Crown vassals. But by
the Conveyancing (Scotland) Act, 1874, (37 and 38 Viet, cap. 94, section
25) burgage tenure has been abolished, and all persons possessed of any
estate in land held burgage are declared to have the same right and
interest in such subjects as would have belonged to them under that act
had the tenure been feudal. Since October, 1874, therefore, there is no
distinction between feu and burgage estates in land so far as title is
concerned.
When
burgns were first constituted on the royal domains, the rents and other
revenues exigible from them were collected and accounted for to the
Treasury by the bailies of the respective burghs, who were originally
royal officers charged with that function, and with the general
administration of the burgh. The bailies were thus under the supervision
of the Great Chamberlain, who, besides having a general control of the
Treasury, excrcised administrative and judicial functions in the burghs,
and supervised the action of the magistrates. It would seem, however,
that an appeal from his decision lay to a court composed at first of
representatives of the Four Burghs already referred to, and presided
over by him. This body afterwards took the form and assumed the name of
the ‘Convention of the Royal and Free Burghs of Scotland.’
The
administration of the affairs of royal burghs in the time of David I.,
and for some centuries afterwards, was exercised by officers known as
prepositi
or chief men. After a time preeminence seems to have been conferred, in
some towns, on one
of the magistrates, who, retaining the title
of prepositus,
came afterwards to be known as alderman, mayor, and latterly provost,
while the subordinate magistrates were known as bailies. These were
elected at first by the good men of the town—the burgesses—annually at
the first moot after Michaelmas, and on election swore fealty to the
Sovereign and to the burgesses, engaging to keep the customs of the
burgh, and to administer justice to all without fear and without favour,
according to the ordinance and doom of the good men of the town. At the
same time burgh officers, known as
sergeants, criers,
or beadles,
were also elected by the burgesses, and had to swear fealty to the King,
to the magistrates, and to the community. The
prepositus
of each burgh was also required, at the sight and
with the counsel of the community, to choose at least five wise and
discreet men to act as
liners,
who had to swear faithfully to line all lands within the burgh according
to right and the old marches. The enactments as to the appointments of
these officers were followed—apparently at a later date—by a law
applicable to every royal burgh, requiring the chief magistrate to cause
twelve of the ‘lelest burgesses and wisest of the burgh ’ to be sworn,
by their great oath, to keep and maintain all the laws and customs of
the burgh. These twelve men or
dozen
were probably the origin of the town council of
later times, and they retained the names of
‘dusane'
even when, in many burghs, the number of the persons so selected
considerably exceeded the prescribed twelve. But at first, and for a
long time, they seem to have been simply a committee of advice to the
magistrates, who were the practical administrators of the affairs of
each burgh.
Towards the close of the reign of Alexander II., or the early part of
the reign of Alexander III., reference is made in the Laws of the Guild
to what, in some cases, are old offices under new names, and in others,
to offices which doubtless existed at a much earlier period, but were
not specifically mentioned. The same document also increased the number
of the dusane
to twenty-four,
to be elected apparently by the burgesses, who also elected the mayor
and bailies; but it provided that if any dispute arose, the election of
the mayor and bailies was to be made by the oaths of twenty-four good
men, possibly the members of the enlarged
dusane,
who were empowered to choose one person to rule the burgh. The guild
code further ordained the community—i.e.
the burgesses—to elect
broccarii
or brokers. This code also provided that if one guild brother offended
against another for a fourth time, he was to be condemned at the will of
the aldermen, the ‘farthing
man,' the dean of guild, and the remainder of
the guild.
The
titles of these officers must be noticed. The term
alderman
was originally synonymous with
Earl
in the old Saxon form of government, and the officer bearing that title
exercised shrieval authority over counties. But afterwards the head
officer of a guild, and still later of the ward of a county or burgh,
came to be so distinguished. The application of the term alderman, to
the chief magistrate of a Scottish burgh possibly arose, therefore, from
the fact that, when the merchant guild became in effect the governing
body of the burgh, the
prepositus
as the head of the governing body, received the title of
alderman.
The title farthing
man had reference, probably, to the old
division of burghs, not only in Scotland but in other countries, into
quarters,
each presided over by an officer so designated. The farthing man was
thus an officer of a quarter, so the term was probably equivalent to
bailie—each bailie having, in early times, the special charge of a
quarter or district of his burgh. The
dean of guild
is still known as the head of the guild.
Still
later, and towards the close of the reign of King Robert I., the
document known as the ‘
Articuli btquirendi in
itinere Camerarii' refers to
ale tasters,
whose duty it was to taste all ale brewed in the burgh, and to fix the
price relative to the quality; to
apprisers of flesh,
who had to see that all kinds of butcher meat sold was of sound quality,
and that the prices fixed by the magistrates were not exceeded; to
gaugers of doth
and wine, who had to see that all cloth sold
was of the proper quality and measure—that all wine had paid the
prescribed duty to the King, and was of the proper quality and quantity,
relatively to the price exacted; to
inspectors- of weights
and measures, who had to see that all weights
and measures were duly tested and scaled with the seal of the burgh.
There was also, obviously, a system of inspection of fish and skins, to
secure that the laws and ordinances in regard to these articles of
consumpt were observed; and of mills, to see that the duties imposed on
millers and their servants were attended to.
It
seems strange that while reference is thus made in the oldest laws to
the provost, magistrates, and dusane or council, and to a number of
subordinate officers in burghs, no reference is made to the office of
the burgh clerk or town clerk. Such an officer, however, must have
existed in the earliest times, not only as the clerk of the council, but
as the adviser of the magistrates in the performance of a large part
both of their judicial and administrative functions. Besides, it was
common for the magistrates themselves and others appearing before them
to ask for and take instruments in the hands of the clerk. This implied
the intervention of a notary, who, no doubt, acted also as common clerk.
Town clerks, in feet, required to be notaries till the giving sasine
became unnecessary. In Scotland papal and imperial notaries practised
till 1469, when an act of a parliament of James III. required all
notaries to be appointed by the Sovereign. For some time after the
passing of this act two kinds of notaries appear to have existed, one
clerical
and the other
secular—instruments attested by the latter
bearing faith in civil matters. But, in 1551, sheriffs were required by
statute to cause both kinds of notaries to be examined by the lords of
session, and in 1555 notaries were prohibited from acting till admitted
by these lords. This requirement was extended by statute in 1563, and
the penalty of death was inflicted on those who acted as notaries
without being previously authorised by special charters from the
Sovereign, followed by examination and admission by the lords of
session. That court has since exercised exclusive authority as regards
the admission of notaries.
Another officer must also have existed from the earliest times, though
reference to him does not appear for several centuries after the time of
David I. This was the treasurer or financial officer of the burgh, who,
doubtless, in respect of the peculiar functions he has to perform, now
holds office, along with the chief magistrate, for a period of three
years from the period of his appointment to that office at any annual
period of election.
It
has been noticed that the period for which the magistrates of royal
burghs were elected, under the provisions of the old burgh laws, was one
year; but it would seem that, in course of time, these provisions became
inoperative, and that injurious results followed. This condition of
matters was referred to in an act touching the election of aldermen,
bailies, and other officers of burghs, passed in 1469, during the reign
of James III. It referred to the great trouble and contention yearly
arising out of the choosing of these officers, ‘through multitude and
clamour of common simple persons,’ and enacted that neither officers nor
councillors should be continued, according to the King’s laws of burghs,
longer than for a year; that the choosing of the new officers should be
in this way, that is to say, that the old council of the town should
choose the new council, in such number as accorded to the town; that the
new and the old council of the year before should choose all officers
pertaining to the town, such as aldermen, bailies, dean of guild, and
other officers; that each craft should choose a person of the same craft
to have voice in the election of officers for that time; and that no
captain or constable of the King’s castles should bear office within the
town as alderman, bailie, dean of guild, treasurer, or any other office
that might be chosen by the town.
This
statute—which was followed in 1474 by another appointing four of the old
council to be chosen annually to sit with the new council, and by a
second in 1503 directing the provost and bailies of burghs to be changed
yearly, and none but merchants to exercise jurisdiction within the
burgh—undoubtedly effected a great change in the previous mode of
electing the magistrates and councils of burghs, and facilitated the
introduction and growth of a practice of admitting into town councils
persons who were neither resident nor concerned in trade, and who
applied the common good of these burghs to personal and other illegal
uses. This practice was referred to in the reign of James V., when in
1535 an act of parliament was passed prohibiting the election to the
magistracy of any save honest and substantious burgesses, merchants, and
indwellers within the burgh. Notwithstanding this legislation, the
uniform mode of election which it established was by no means
universally adopted, and, under local influences, the constitution of
burghs royal, or their
setts,
came to exhibit an endless variety in detail, although agreeing, with
scarcely an exception, in their leading principle of what has been
usually termed ‘ self-election,’ to the exclusion of any near approach
to popular suffrage. Into the various peculiarities of that system it
would be unprofitable to enter, as the whole- of it has now been
completely done away with; but it may be stated that the setts of burghs
have been the subject of much controversy and discussion in the courts
of law, and that in their adjustment a sort of paramount authority was
formerly assumed by the Convention of Burghs, as claiming to succeed to
some of the functions of the ancient ‘Court or Parliament of the Four
Burghs.’
In
the old burghs of Scotland, as in those of other countries of Europe,
every burgess was under obligation not only to serve in the King’s host
for the defence of the realm, and the support of the Royal authority
throughout the kingdom, but also to perform the duties of watch and ward
within his own burgh. When a watch was appointed by the magistrates to
be kept, a burghal officer known as the
Walkstaff
passed from door to door and summoned such of the residents as were
required to watch. Every man of full age so summoned was bound, under a
penalty, to enter upon tKe duty at the ringing of the curfew, provided
with two weapons, and to watch closely till day dawn. The due
performance of this duty was the subject of enquiry by the Lord
Chamberlain at each of his ayres, and he had specially to enquire
whether the duty was imposed on the rich equally with the poor. From the
duty of watching and warding widows were exempted, unless they carried
on the business of buying and selling, when, according to some
manuscripts of the burgh laws, they were liable to perform
all
the duties of citizenship— those of watching and warding and military
service being discharged by a suitable male substitute.
In
the early history of burghs, the possession of simple burgess-ship seems
to have placed the whole inhabitants upon an equal footing of right and
privilege as well as of obligation. But, even in the time of David I.,
there were doubtless gradations of social position among the burgesses,
determined not only by their individual ability or worth, but by the
occupations they pursued. The mercantile class—which profited most from
the practical monopoly of trade and commerce, foreign and domestic,
which royal burghs enjoyed—seem to have organised themselves, at a very
early period, into Guilds, and to have succeeded in drawing a line of
separation between those burgesses who
might,
from those who
might not,
find admission into these guilds. This appears from the Burgh Laws,
which excluded from such guilds lusters, or dyers, fleshers, and souters
or shoemakers, unless they abjured the practice of their respective
trades with their own hands, or otherwise than by their servants. As the
wealth and influence of- the mercantile classes extended, they became
more and more exclusive in their relations with the craftsmen, and,
being the richest and most important section of the community, they
assumed more and more a preponderating influence in the government of
the town. In the reigns of Alexander II. and Alexander III., if not even
earlier, the merchants in the more important burghs formed themselves
into highly organised associations or guilds, and, being thus organised,
the growing power of the entire communities in which they existed
practically passed into their hands. This is shown, as regards the town
of Berwick, in the Laws of the Guild, enacted there in or before 1249.
These state that
several guilds had been formed in the town,
with the result that there was a want of unity and concord, and that the
incorporation of the whole, with their respective properties, into one
guild, was intended to remedy this state of matters. The then mayor and
other good men of the town accordingly enacted a constitution for all
the separate and independent guilds, which, ‘ if incorporated into one
under one head, could in all good deeds be bound together in a
fellowship sicker.’ The condition described in this document doubtless
applied to other Scottish towns. But, be that as it may, it is certain
that the Berwick guild statutes were soon generally adopted and quoted
as authoritative among them. The structure of this code is peculiar, for
not only did it contain minute provisions .as to the constitution of the
guild, and regulate its action and that of its members in a variety of
particulars, but it legislated as to matters affecting the entire
burghal community, and was practically a municipal and police code, to
be enforced by the governing body of the burgh. The only explanation of
this fact seems to be that the guild, which in each burgh included a
large number of the most influential burgesses, had by this time assumed
the functions of the governing body.
But
while the merchant class were thus assuming largely, if not wholly, the
functions of burghal government, the craftsmen class were also growing
in wealth, intelligence, and influence, and were preparing to assert
their claims to participate in the administration of the affairs of the
town. Forming themselves into separate crafts, and obtaining, chiefly
from the magistrates, what was known as ‘
Sea Is of Cause'
officially sanctioning their special organisations, they elected their
presidents or deacons and other officers, and prescribed the conditions
of admission to their crafts—conditions which excluded from their
organisations and their benefits all who were not formally admitted to
membership,—and subjected every member to strict obligations as to the
manner in which each craft was to be conducted. Thus organised, the body
of craftsmen in each burgh became a power, and ere long asserted their
claims to share with the mercantile guild in the administration of the
town’s affairs. This action aroused the jealousy of the guilds, and for
a lengthened period disputes between the merchants and craftsmen were
incessant. Complaints arose as to the quality of the work produced by
the several crafts, as to the prices charged by them, and as to their
riotous habits, and these complaints resulted in numerous statutes to
secure efficient manufacture and reasonable prices, and to restrain
their turbulence. Much of the municipal records of the early burghs in
the fifteenth and subsequent centuries is occupied with details of the
struggles of the various orders of crafts to obtain a larger share of
burghal administration than they then possessed, and ultimately their
struggles succeeded in securing for them what they had so long contended
for. In many of the burghs, both the merchant class and the craftsmen
had a recognised representation in the town council. But such special
representation was abolished by the Burgh Reform Act in all burghs save
Edinburgh, Glasgow, Aberdeen, Dundee, and Perth. In the two first of
these the dean of guild and deacon convener, and in the others the dean
of guild only, were continued as constituent members of the town
council.
The
early royal burghs bore an important share of all public burdens, and
contributed in certain fixed proportions, with the ecclesiastical and
secular lords, towards all national aids and contributions. As such
contributors they appear to have been first called to national
conventions held for the purpose of imposing taxation, but afterwards
came to be recognised as one of the Estates of the Realm. In respect of
their liability thus to contribute to the national revenue, and to
fulfil the other obligations incumbent on them as burghs, they got from
the Crown special privileges, and among these new, or confirmations of
old, exclusive privileges of trade and merchandise, foreign and
domestic. These privileges were often expressed in the royal charters to
individual burghs, but a general Charter of Confirmation of the
privileges of burghs royal was granted by David II. (1362-63) and
authoritatively summarised these privileges. By that charter he granted
to his burgesses free power and faculty to buy and sell within the
liberty of their own burghs, but forbade them to buy or sell within the
bounds of the liberty of any other burgh unless specially licensed. He
also prohibited bishops, and other ecclesiastical persons from buying or
selling wool, skins, hides, or other merchandise, under whatsoever
colour, but only from or to merchants of the burgh within whose liberty
they remained. Such merchants were moreover commanded to present their
merchandise at the market and cross of burghs that merchants might buy,
and that the King’s custom might be paid. The charter further forbade
‘cxtranear merchants, coming with ships and merchandise, from selling
any kind of merchandise save to merchants of free burghs, or from buying
any kind of merchandise save from merchants of the King’s burghs, under
pain of the royal indignation. The valuable rights thus summarised, some
of which seem to have existed in the time of David I., were carefully
guarded by successive acts of parliament, and jealously asserted by the
burghs themselves individually and collectively. The assertion and
vindication of those privileges, and their special interests as burghs
in relation to all matters of internal administration, formed a large
proportion of the work of the Convention of Burghs, and much of the
legislation by parliament in regard to these matters was simply the
reflex of the action of the Convention, which from time to time
submitted to the Estates of the Realm the results of their
deliberations, and succeeded in getting them embodied in acts of
parliament. It was, indeed, in consideration of the trading monopolies
enjoyed by royal burghs that they had to bear so large a proportion of
national taxation in early times, and this liability was subsequently
pleaded as a reason why burghs of regality and barony, and other unfree
towns which were exempted from it, should be excluded from trade and
merchandise. The struggles on the part of the burghal convention to
maintain the rights of the royal burghs in this respect were prolonged
and vigorous, and they did succeed for a time in compelling the burghs
of barony and regality and other unfree towns which had sprung into
existence to contribute towards the relief from the burden of taxation
which rested upon them. But the maintenance of exclusive privileges of
trade and merchandise was impossible, and the only well-founded ground
of complaint which royal and free burghs have in the present day is
that, while their exclusive privileges liave been swept away, they are
still charged with the annual payment to the State of taxation imposed
on them in respect of these privileges.
James D. Marwick. |