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Roman Institutions remaining after the overthrow of the Roman power
Municipal Institutions Spanish Fueros German free cities Hanse
Towns English burghs Scotch burghs The Scotch laws of the burghs
founded on old customs of English and Scotch burghs Election of
Magistrates Who were the electors? Scotch burghs more ancient than
any charters Berwick St. Andrews Edinburgh Rutherglen Perth
Perth burgh charter Aberdeen Inverness Ayr Churchmen's burghs
Glasgow Court of the four burghs Beauty of Scotch towns Burgesses.
There is no more important
mistake in history than when we speak of the extermination of a people by
an invading enemy. Such extermination, probably, never takes place,
certainly not where the conquered people is the civilised, the invaders
the barbarians. I do not mean to controvert the slow retreat and gradual
disappearance of an inferior race before a more energetic one. That is
passing under our own eyes, wherever the white man of Europe comes into
lengthened opposition to the red man of America, or the aborigines, I may
say, of any other clime. But the intentional and total extermination of a
powerful and civilised people is contrary to all reason, and the nearer
each alleged instance comes to our own examination, the more easy do we
find it to disprove it. Undoubtedly no such general and violent
destruction took place when the Roman empire fell before the invading
barbarians. Neither the old people nor their institutions were altogether
rooted out. The provincial cities of Europe were already ground down with
intolerable taxes to Rome. The barbarians could get no more. They could
not reconcile themselves to a town life, and they left the inhabitants to
live according to their old customs, only transferring the payment of
taxes to their new masters. The result was, that in most of the great
cities of France and Germany, the institutions for town police and local
management remained on the old footing. They had their curia or council,
chosen by the citizens, which administered the affairs of the community.
Such of the cities as enjoyed the jus Italicum had magistrates, with civil
and criminal jurisdiction, also chosen by themselves. I would not have you
to believe that there was a real independence in those old Roman cities.
They had never known it under the Roman sway, and still less could they
expect to enjoy it under new masters, regardless of their laws. The
magistrates were apparently controlled and thwarted by the state
government, and subjected to all indignities. But still the germ remained
of self-government, and throve not the worse, that in most of the
conquering tribes it met a similar principle. By it, peace was promoted
and union, and some degree of security ensured for person and property.
The convenience of the system caused it to spread among the new towns,
which rose round bishops' cathedrals and the castles of princes; and when,
at a later time, it became a state policy to defend the people and an
infant commerce against an insolent nobility, the framework was there
ready, and the community, long bound together by such ties, and confiding
in its chosen leaders, required nothing but the protection of the Prince
and the law to make it capable of defending itself. Accordingly, when we
get at what are called the charters of erection or incorporation of any of
the more ancient towns, we find them to indicate a pre-existing body,
enjoying some definite constitution or government.
The first country of modern
Europe, in which the old municipal institutions were called into new life
and activity, was Spain; but there, the revival of privileged towns was
for a peculiar purpose, and the cities were invested with freedom and
property, on condition of defending their country against the Moorish
enemy. The Fuero, or original charter of a Spanish community, was properly
a compact, by which the king or lord granted a town and adjacent district
to the burgesses, with various privileges, and especially that of choosing
magistrates and a common council.
Of this kind, Leon had a
charter in 1020, and Barcelona in 1025. In both of these, there is
evidence of a municipal constitution and council already in use.
Henry V., Emperor of
Germany, was the first emancipator of the German cities from the tyranny
of their bishops and princes. With a more questionable policy, he
encouraged and incorporated bodies of men, of the same craft and
occupation, as we should say, the trades of the townsthus sanctioning
their separation from the mercantile or high burgher class, with whom they
ought to have been rather encouraged to unite. We do not find in his
charters, nor those of his successors, any grant of the right of electing
counsellors and magistrates ; but in fifty years after his time, all the
cities of Germany had counsellors of their own choice, and before the end
of the thirteenth century, the free cities of Germany were acknowledged
sovereign and independent, and sent deputies to the national diet, along
with the electors and princes.
About the middle of the
thirteenth century, the free towns of Lubeck and Hamburgh entered into a
league for mutual defence and protection of trade. Other towns soon joined
their confederacy, and in a short time, eighty of the most considerable
cities, along the shores of the Baltic, from the mouth of the Rhine to the
gulf of Finland, had united into that famous confederacy, which is still
remembered by the name of the Hanse league. Like many burghal usages, such
combinations must have been floating over Europe for centuries before. We
find a similar fellowship, on a small scale, in our own country, known by
the same name of Hanse, in the reign of David I., one hundred years before
the great Baltic association came into being. The great Hanse was divided
into four classes, of which Lubeck, Cologne, Brunswick, and Dantzick, were
the heads, and Lubeck was the centre of the association. It had four
foreign staples, London, Bruges, Novogorod and Bergen, in Norway. The
Hanse league, so powerful for good or evil, exercised the lawyers in
discussions upon its legality, but went on, nevertheless, in prosperity
and power, while bound together by its delegates, meeting for its proper
and legitimate purposes of trade. It was only when its vast influence
seemed to offer an inducement to scheming princes to use it for political
power, that the Hanseatic cities gradually fell asunder, and, after the
sixteenth century, left only the name of their mighty union.
When Mr. Hallam wrote his
history of the middle ages, he was inclined to deny that the burghs of
England had any municipal administration by magistrates of their own
choice; but he admits that the possession of corporate property implies an
elective government for its administration, and there is now abundant
evidence collected, of burghal property in England before the Conquest.
Mr. Hallam himself, indeed, has been shaken in his opinion, by the express
terms of numerous charters which he had overlooked. I am sure that a fair
examination of the subject will convince any student that such towns as
London, York, Lincoln, and Winchester, full as they were of wealth and
enterprise, managed their common affairs, their police and internal
economy, before the Conquest. It is only to my mind difficult to fix a
time at which they did not do so.
Those centuries I have
chosen to illustrate, seem to me peculiarly interesting for Scotland, not
merely full of remarkable events, but big with promise and foreshadowing
of mighty change. It is as if the elements of society, bound up in the
frost of ages, had been at once relaxed and set in motion. There is great
clashing and confusion, but as the tide subsides, you may observe rising
through it the rude shapes of institutions now familiar and endeared to
us.
Whilst David I. was
introducing a new and chivalrous aristocracy, and reforming and extending
the Church, he did not neglect the third class of society. The rise of
free towns, with privilege of trade, and the ascertained right to govern
themselves by their own laws, is perhaps always and everywhere the most
important step in national advancement. But it requires us to imagine a
country like Scotland in the beginning of the twelfth century, only
recovering from an age of anarchy, to appreciate the effect of that
statute of the laws of the burghs, which declares that "Gif ony mannis
thryll, barounis or knychtis, cummys to burgh and byis a borowage, and
dwellis in his borowage a twelfmoneth and a day, foroutyn challenge of his
lorde or of his bailye, he sail be ever mare fre as a burges within that
kingis burgh, and joyse the fredome of that burgh." [Cap. 15.] This code
of Scotch burghal regulations, though collected in the reign of David, and
sanctioned by him, was the result of experience of the towns of England
and Scotland. I lately found, in the Record Office of the Tower at London,
a memorandum of the laws and burgh usages of Newcastle in the time of
Henry I., written in a hand as old as the reign of Henry II. It consists
of eighteen chapters, almost consecutively, of the well-known burgh laws
of Scotland. There was indeed a sufficient connection between Scotland and
Northumberland, whilst both were under the rule of David, to render it
very probable that the framer of a body of Scotch burgh laws should adopt
the customs used at Newcastle; and there are even traces of a more
extensive correspondence between the Anglo-Saxon and Scotch burghs. The
charters of Winchester, granted by Henry I., which soon became the
favourite models of burgh charters of England, were themselves only the
embodying in special grants, of privileges and liberties enjoyed before by
the city itself, or known and enjoyed before and time out of mind by the
towns of England, though defeated and thwarted by adverse circumstances.
It is curious how close a resemblance those charters of Winchester bear to
the privileges of Scotch burghs, conferred by king David. Everything shows
us that there was at that time a general movement in favour of the
privileges of towns; and no feelings of hostility yet interfered to
prevent the inhabitants of lowland Scotland and of England, kindred in
blood, language, and manners, from adopting together the steps of a
system, which opposed to the oppressive power of the armed feudal lords
the union of numbers in each town, and the combination and mutual support
of the trading communities of the whole island.
The important, indeed the
vital, point of the Scotch burgh laws, was that regarding the election of
their magistrates. In other countries this was long withheld or grudgingly
bestowed
"At the fyrst mute, next
eftir the feste of St. Mychael, the aldirman and the bailyeis sal be
chosyn, thruch the consaile of the gud men of the toune, the quhilk aw to
be lele and of gud fame. And thei sal suer fewte till the lord the king,
and to the burges of the toune. And thai sal suer to keep the customys of
the toune, and at they sal nocht halde lauch on ony man or woman, for
wrath, na for haterit, na for drede, or for luve of ony man, bot thruch
ordinans, consaile and dome of gud men of the toune. Alswa, thai sal suer
that nother for radnes, na for luve, na for haterit, na for cosynage, na
for tynsale of their silver, thai sal nocht spare to do richt till all
men." [Cap. 70]
The election of councillors
of Berwick is prescribed in the code of Statutes of the Gild, showing at
least the custom of the thirteenth century. There were to be twenty-four
good men, of the best and discreetest and most trustworthy of the town,
elected for this purpose, along with the mayor and four bailies. [Constitucio
facta de Gubernacione communitatis Berwici.]
Who the electors of
magistrates truly were the "probi homines villae, fideles et bonae famae"
has been made a subject of controversy; but, as it cannot be
imagined that a right or franchise of this nature could possibly depend on
any other than plain or tangible criteria, there seems to be no good
reason for supposing that the epithets in question had any other meaning
or effect than as descriptive of the class of proper burgesses, in
contradistinction to the unprivileged inhabitants of the district. Such
appears, accordingly, to be the import of the oldest record of a burgh
election now extant, that of Aberdeen for the year 1398: "Die lunae
proximo post festum beati Michaelis archangeli, anno domini milesimo
tricentesimo nonagesimo octavo. Quo die Willelmus de Camera pater, cum
consensu et assensu totius communitatis dicti burgi electus est in officum
Aldermanni, et Robertus filius David Simon de Benyn Johannes Scherar ac
magister Willielmus Dicson electi sunt in officium ballivorum." To the
term "the whole community," here used, no other sense can well be assigned
than that of the entire body of regular burgesses; any other
interpretation would seem to be entirely arbitrary.
Satisfied with having
sanctioned these invaluable privileges to the whole, David does not seem
to have granted what we should call charters of incorporation or erection,
to the individual burghs. Lawyers choose to presume, that what are now
called "corporations by prescription," must have had royal charters, now
lost or destroyed. But the facts seem to run against that presumption of
law. It is scarcely credible that all the charters of erection should have
been destroyed or lost, while so many closely following them in antiquity
have been preserved. In one instance, that of Ayr, we still have what
appears to have been the first charter that was granted to it; and yet it
is nothing of the nature of a deed of incorporation or erection. It would
appear then, that towns and trading communities existed among us as early
as we can pretend to speculate upon our history carrying on the little
commerce of the country, through the impediments of lawlessness and
insecurity of property, and the oppressions and exactions of the
government that ought to have protected them; and that the burghal
reformation of David consisted in throwing around these the protection of
the law, and encouraging them to elect for themselves managers of their
common affair; and magistrates to administer justice among them and to
lead them in defending themselves against aggression.
Berwick was the seat of the
principal trade on the coast of Scotland, and its burgesses were
particularly active and zealous in establishing their privileges. When
Bishop John of St. Andrews was desirous of erecting a burgh at his
episcopal see, the king granted him the site, and transferred to the new
burgh the services of Mainard, as its provost, a Fleming and a burgess of
Berwick, where he had learned the burgh usages and the duties of his
office. Such was the beginning of the city of St. Andrews as a trading
burgh.
Our own ancient city, or
rather its castle (deriving its name, from being the burg or fortress of
Edwin of Northumbria), very early became a frequent and favourite
residence of our kings, when Lothian had been ceded to Scotland. St.
Margaret resided there, during the fatal expedition of her husband Malcolm
into England, and died there. Her son David had a dwelling on the rock,
and a garden on the bank, between it and the church of St. Cuthbert. The
town which grew up under the protection of the castle, in the midst of the
royal demesne, was naturally an object of royal favour, and David I.
granted to its burgesses, not only exemptions and freedoms within their
walls, but an exclusive right of trade and manufacture over a district
extending from Colbrandspeth or Edgebucklin brae on the east, to the water
of Avon on the west, corresponding to what was afterwards the Sheriffdom
of "Edinburgh principal." So considerable was the trade of Edinburgh,
after Berwick was lost to Scotland, that in the middle of the fourteenth
century, the customs paid from it, were about one half of the sum raised
from the whole customs of Scotland.
Other burghs of David's
erection were not destined to take so high a position. He erected his
demesne village of Rutherglen into a royal burgh, with the exclusive
privilege of trade over an extensive district, the limits of which cannot
now be fixed with certainty. It certainly included Glasgow, however; and
when soon afterwards, the bishop obtained the privilege of trade for his
little city, this gave Rutherglen, the king's burgh, an opportunity of
tyrannizing over it, which it exercised in levying toll and petty custom
up to the gates of Glasgow.
The oldest charter of
Rutherglen preserved is one of William the Lion, which confirms all the
customs and rights the burgh had from David; but is chiefly remarkable for
specifying the boundaries of its extensive jurisdiction. It denounces any
who shall withhold the tolls or other customs, which belonged to the town
in the time of David; and the king concludes in these words, "I strictly
command, that no one bring anything to sell within these bounds, except it
have been first at the burgh of Rutherglen." You must not imagine
Rutherglen always so insignificant as it is now. Its ferme or rent paid to
the Crown was considerable. After some pretty large assignations, made
from them by successive kings, for various purposes in the Cathedral of
Glasgow, the burgh still paid of ferme to the Crown in 1331, £15, while
Linlithgow paid £10, Edinburgh £32, and Berwick £46. Rutherglen might have
decayed at any rate; but we find a sufficient cause of its dwindling into
its original state of a rural village, in the overshadowing of the
neighbouring city of Glasgow.
The beautiful situation of
Perth must have early attracted attention. Its fertile soil, its central
position at the opening of so many passes into the inland and upland
country, and at the highest navigable point of its noble river with its
fishings, which were of great value before we had learnt to decoy fish out
of the Firth and the open sea were such as our ancestors ever chose for
a town. It may have been, as it is very confidently asserted by
antiquaries, one of the Roman cities of Britain ; and we may indulge in
the imagination of the Roman soldiers comparing the Tay to the Tiber
(which from them was a compliment!) and fixing their dwellings on its
banks. It is certainly a place of very high antiquity. No record or
chronicler alludes to its origin. It is probably, in some shape, as old as
any sort of civilized society among us. The commencement of its trading
privileges dates from David L, who had a house in the town, and called it
his burgh; and who seems to have granted to it the exclusive privilege of
trade within the whole county of Perth.
The earliest charter of
Perth preserved, is one of William the Lion, which I notice more
particularly, because it appears to have served for a style and copy in
later burgh constitutions. It commences with a prohibition against any
stranger merchant (mercator exlraneus), buying or selling anywhere within
the sheriffdom, except at the burgh "but," says the king, "let the
stranger merchant come with his wares to my burgh of Perth, and there sell
them and invest his money." The foreign merchant is also prohibited from
cutting his cloth for retail in the burgh, except from Ascension Day to
the feast of St. Peter and Vincula; between which terms they were allowed
to cut their cloths for sale, and buy and sell their cloths and wares as
freely as the burgesses. This long period, from ten days after Easter to
the 1st of August, allowed for strangers retailing, was a great relaxation
of the privileges of exclusive trade. A singular privilege follows. No
tavern (taberna) is to be allowed in any place within the sheriffdom of
Perth, except where a person of knightly degree is lord of that place, and
lives in it; and then only one tavern. This was plainly to secure for the
burgesses the monopoly of retailing drink over the whole county, if that
could be effected by a royal charter. The king grants to the burgesses the
right of having their merchant guild, excluding fullers and weavers (fullones
et telarii). This curious exclusion of artizans, not generally ranked as
merchants, I do not pretend to explain.
We may conjecture that the
trades employed in the making of cloths had risen to greater wealth than
the other craftsmen, and had pretended to an equality and participation of
the privileges of the merchant guild, which it required the royal
authority to repress. The charter next prohibits any one from making
cloth, dyed or shorn, within the sheriffdom, except a burgess and gild
brother, paying his share of the town burdens and royal aids; and any
cloth found contrary to that prohibition, is to be dealt with according to
the custom that existed in the time of king David. The king prohibits
strangers from buying or selling hides or wool, anywhere but in the burgh.
We learn from this charter
both the favourite monopolies which formed the distinction of those early
burghs, and something of the trade and manufactures that were then carried
on among us. I shall have occasion to speak of these last more fully
hereafter.
Aberdeen owed its origin to
the Church, but the village which grew up at the mouth of the Don round
the bishop's cathedral, was soon overtopped by the offset which had been
attracted by the better harbour and the fishings of the river Dee. The
first of the extant charters of Aberdeen informs us of the existence of
that league among the northern burghs of Scotland, taking its name from
the German Hanse, and, like its great namesake in after times, doubtless a
combination for mutual defence and counsel. The charter is very short:
"William, by the grace of God, king of Scots, to all good men of his whole
land, greeting: Be it known that I have granted, and by this charter,
confirm to my burgesses of Aberdeen, and to all my burgesses of Moray, and
all my burgesses dwelling on the north part of the Munth, their free Anse,
to be held where they choose, and when they choose, as freely as their
ancestors had their Anse in the time of my grandfather king David.
Wherefore I prohibit any from vexing or disturbing them while holding the
same, under pain of my full forfeiture." This document, while it serves to
indicate that the individuals in whose favour it was conceived could not
have been united into a single burghal community in the present meaning of
the terms, may be regarded as proving, that among the traders of the
country, there had been formed a federal connection, and that to the north
of the Grampian mountains there existed a set of hanse towns, whose
alliance, and whose common privileges and immunities had been recognised
and protected at least as early as the reign of king David I. The only
other charter of William, preserved in the city archives, grants to the
burgesses of Aberdeen in terms, the privileges granted to Perth by
William.
Aberdeen benefited, no
doubt, by being the port of the bishop's see. But its harbour, on an
inhospitable coast, and the produce of its mountain pastures and its
river, drew to it, at a very early period, an extensive foreign trade,
which placed it immediately after Edinburgh and Berwick in the scale of
commerce.
The archives of the burgh
of Inverness are rich in burghal history. In them is preserved a charter
of William the Lion, granting to "his burgesses of Moray," the common
privilege against suffering distraint for the debts of others. The same
king granted to the burgesses of Inverness specifically, exemption from
toll and custom over all Scotland; the exclusive privilege of trade in the
burgh and county; and conferred upon them, in property, the Burgh Haugh.
The burgesses were taken bound, on the other hand, to construct and
maintain constantly in good repair, a fosse and palisade, which the king
was to make round the town.
The next charter to this
burgh, also by king William, is more remarkable. It grants to the
burgesses exemption from wager of battle. They were no longer to be
obliged to do battle at the appeal of any one, but might support their
cause by oath. This, however, was not the oath of witnesses knowing the
truth, but the oath of compurgators, swearing their belief that the cause
was good. The charter, as a farther boon, reduced the necessary number of
compurgators for the burgesses of Moray by one half, and the amount of
their forfeit, that is apparrently of the king's amercement, to the half
of that of other burgesses.
The remaining charter of
William, to Inverness, gives a right of a weekly market, and assures the
"king's peace" to those frequenting it. It grants to the burgesses all the
laws and customs which the burgesses of the other burghs possess, and
concedes in terms, the privileges of exclusive trade within the county I
have already mentioned as granted to Perth.
I fear to exhaust your
patience with these details of charters, but I must still direct your
attention to one of considerable interest locally, and also to the legal
antiquary. In the year 1197, King William had built a castle on the river
Ayr, and had encouraged the settlement of a town or burgh, where probably
a village had long existed. About ten years after, he granted a charter to
Ayr. In it the king sets forth that he has made a burgh (burgum fecisse)
at his new castle upon Are, and has granted to the burgh and its burgesses
all the liberties and free consuetudes which his other burghs and
burgesses through his kingdom enjoy. He then grants to the resident
burgesses exemption from toll or petty custom everywhere, as in other
burgh charters. He grants a territory by named boundaries now not easy to
ascertain. Each burgess holding a full toft, is to have a right to six
acres, which he may clear of wood, the reddendo for the toft and six
acres, twelve pence. Toll and other customs due to the burgh are to be
levied at certain places named, apparently on the outward boundaries of
the territory granted.
Upon this charter, which is
evidently the first charter of the burgh, the most learned of our
constitutional lawyers has remarked, That in it, as in all others of the
same early date, there are evidently no words of incorporation such, at
least, as would now be deemed requisite; and the obvious inference seems
to be, either that the mere denomination of burgus in a royal grant was
held sufficiently to import the immediate creation of a corporate
character in the inhabitants, or, as seems more probable, that such
artificial unions, instead of being the sudden product of royal
prerogative, were the slow and natural growth of circumstances and
situation. It is in accordance with this supposition, that the original
right and character of burgess appear to have depended on the actual
possession of real property within the burgh. In this charter the meaning
seems to be, that all those are to be burgesses of Ayr, and entitled to
the peculiar privileges thereby conferred, "who shall come to inhabit the
burgh and shall be there abiding." And in some of the earliest charters to
other burghs royal, similar declarations are contained, from which it
seems just to infer, not merely that a freeman was bound to acquire
property within the burgh, but that such acquisition constituted the
prime, if not the sole qualification, and entitled him to those privileges
and immunities, which constituted the peculiar advantages of burghership.
[Thomas Thomson, lnirod. to Scotch Burgh Reports, p. 11.]
While the sovereign was
raising the third estate by the security and privileges of his burghs, the
great lords of the Church, desirous to participate in the advantages of
trade which attended them, obtained privileges of the same nature for the
towns and villages that sprung up round their cathedrals and abbeys.
I have already mentioned
the origin of St. Andrews. Each of the episcopal sees, and many of the
great monasteries, in like manner obtained foundations and rights of
trading for their dependent villages. Some of these never rose much beyond
their original condition. Dunkeld, Dumblane, Rosmarkie, Dornoch, continued
the dependent rural villages which their old masters had made them.
Arbroath and Paisley, the one by a small foreign trade, the other by
manufacture, rose a little in importance. But amongst these, Glasgow
stands the chief. The charter of King William, which gave to the Bishop
the privilege of having a burgh at Glasgow, with a market on Thursday, was
granted between the years 1175 and 1178. We smile at the present day to
think of the oppression which the bishop's burgh of barony long suffered
from the royal burgh of Rutherglen. Even after 1450, when the bishop had
obtained a jurisdiction of regality, and Glasgow rose a step in the scale,
it had to maintain a struggle against the king's burghs of Renfrew and
Dumbarton, which sought to monopolise the trade of the river, as
Rutherglen did to circumscribe the city to landward. Though represented in
Parliament so early as 1576, and emancipated at the Reformation from
subjection to the bishop, who formerly controlled the election of its
magistrates, the city did not become legally a royal burgh, till the
charter of Charles I., confirmed in parliament 1636. It was not even for
some time after that Glasgow began to put forth its hidden strength and
capacity for improvement. Since the beginning of last century, its
progress in manufacture and trade, in wealth and splendour, has been rapid
beyond any parallel.
Unity of interest naturally
produced union among the burghs of Scotland. We have already seen a hanse
or league established among those north of the Grampians, including
Aberdeen, as early as the reign of David I. The southern burghs had a yet
more definite and solemn combination. As early almost as we have any
knowledge of the constitution of burghs, the greater burghs of the south
seem to have held assemblies in which the great Chamberlain of the kingdom
presided. From thence is supposed to have emanated the collection of the
laws of the burghs in the time of David. In the thirteenth century they
were called the court or parliament of the four burghs, Edinburgh,
Berwick, Roxburgh and Stirling. In 1368, when Berwick and Roxburgh had
fallen into the power of the English, Lanark and Linlithgow were
substituted for them. This burgher parliament acted as councillors to the
Chamberlain in judging of burgh causes appealed from his air or circuit,
and also made laws and regulations for trade and burgh affairs. Haddington
appears to have been their established place of meeting, but it
necessarily varied; and in 1454 it was fixed by royal charter at
Edinburgh. Before that time "the court of the four burghs" had extended
its constitution, and summoned to its meetings commissioners from all the
burghs royal south of Spey. In the course of the following century the
ancient burgher court or parliament had merged in the Convention of
Burghs, of which it is not necessary to speak. I believe it still exists.
Besides this parliamentary
process for consultation, the burghs of Scotland advised with each other
upon any question or difficulty that occurred in their administration;
and, having ascertained the prevailing custom in the several towns, they
unhesitatingly adopted that as law. Some of these evidences of fraternity
appear to me of singular interest. At a very early period it appears that
a doubt arose as to the right of alienating real property on deathbed. The
burgesses of Perth, Lanark, Edinburgh, and Aberdeen, took an interest in
the question, and reported the custom of their burghs to be against such
alienation, whether the lands were of inheritance or of "conquest," and
the customary law being thus ascertained, it forthwith appears upon the
statute book, running, " consuetudo burgorum est."
[The consultation, queries,
and answers, are preserved in the old law MSS. The law, as founded on
their usage, runs thus:-
A seke Burges may nochtanaly
It is for to wyt that the
custom of the Burgh is that na man lyande in bedde of dedde ony landis the
quhilk he has heritably in burgh na yhete other the quhilk he purchest in
his hele fra the verray ayre may analy or till ony other geyff or sell but
gif it war sua that he war sua gretly constreignit throu nede that it
behovit hym algatis do for nede has na law And that his ayre walde nocht
or for poverte is nocht of pouer his faderis nede to stanche or his dett
to pay redyly.Leges Burgorum, c. 101.]
In other cases of
difficulty the Scotch burghs wished to learn the practice of the burghs of
England ; and in two of these the response of the burgh of Newcastle
appears to have settled the doubt, for the precise words of that answer
form the law as it stands recorded among the laws of the burghs of
Scotland.
[Of ane Burges ejected furth
of his Possession.
This is the assise of the
New Castell that gif ony man of ony burgh war in the possession of ony
land quhether it be rycht-wysely or wrangwisly & sua cummys ane othir in
sayand that he is veray ayre of that ilk lande and hym out puttis that was
in possession of his awn authoritie and withouten dome. Quharfor it is
askit at us Burges of the New Castell quhether he that was first in
possession sal recover his sesing befor that he answer till him that put
him out. To that than ansuer we that he that was first in possession
rychtwisly or unrychtwisly sall all tym first recouer his possession, and
efter that gif he tyn his possession in forme of law & dome that he is
halden to doo. And he that puttis him out be his awn proper authority and
will sall remayne in the kingis amerciament.Leg. Burg.,c. 99.]
Travellers have been so
occupied with the natural beauties of Scotland that they have paid too
little attention to the beauty of our towns. Their sites are generally
surprisingly fine; I do not speak only of those most known and celebrated
Perth, Edinburgh, Inverness but of all our rural capitals. The
excellence of their building materials has, I suppose, induced the
citizens to lay them out on a spacious plan. There is at once an airiness
and a solidity, and in many of them an approach to grandeur, which we seek
in vain in the provincial towns of other countries. Our old burgesses
loved to copy the steep roofs and tall gables of their Flemish allies in
trade; and the towns they have built in imitation of them, stand better on
the banks of our rivers and firths, and backed by our mountains, than even
the fine old cities of decayed splendour on the shores of the Zuyder Zee,
or the Great Canal. Setting aside Glasgow as something too large to deal
with as one of a class, our Scotch burghs seems to me the natural, healthy
and happy growth of an industrious and steadily progressive country. The
privileges, necessary at first perhaps for their existence, and so
beneficial to the country, they have gradually abandoned, as they appeared
to obstruct an extending commerce. Their citizens have always worthily
filled the important place and functions of a third estate. In early
times, I mean when the old Church was no longer efficient, they were the
zealous supporters and encouragers of a liberal education. When there was
less mixture of ranks than at present, and more gross immorality they were
free from many of the temptations and many of the vices of the rural
gentry. Not extremely given to busy themselves in public affairs, they yet
took a reasonable interest, a patriotic concern in the affairs of the
country, so far as the perversion of their ancient free constitution (now
restored) gave them power. Above all, their steady industry and active
enterprise quite removed from the mad speculations that now surround us
their honest frugality, and simple primitive manners, not rarely united
with some accomplishment and learning [Many of the old citizen-merchants
of Edinburgh had studied at the University, and appear in the lists of
graduates.] formed a class of men that I should be sorry to think was
altogether extinct. |
