- Ancient Laws and Customs of the Burghs of Scotland, A.D., 1124-1424. Edinburgh, 1868.
- Charters and Other Documents Relating to the City of Edinburgh, A.D, 1143-1540. Edinburgh, 1871.
- Charters and Documents Relating to the Burgh of Peebles, A.D. 1165-1621. Edinburgh, 1872.
- Charters and Documents relating to the City of Glasgow, A.D. 1175-1648. Edinburgh, 1883.
THESE and other volumes of the Scottish Burgh Records Society, illustrative of the early history of burghs in Scotland, have a practical interest even in the present day. They help us to form an intelligent conception of what burghs were in this country in the twelfth, thirteenth, and fourteenth centuries, showing them to have been centres of freedom, as freedom was then understood. They exhibit burghs as important factors in the promotion of civilization – guarding popular liberty and developing national culture. In acknowledging the debt of gratitude we owe to them, we shall the more reverently appreciate and cherish those municipal institutions of our own times, which are the lineal descendants of these distant ancestors, – descendants who still retain much of the form and spirit of their old progenitors. In an acquaintance with the constitution and customs of the old burghs, we shall find the best preparation for studying municipal institutions in later times, and even for understanding much that still remains. Using, then, mainly as a text, the titles of the volumes we have quoted, we propose to offer in the present paper a rapid sketch of early Scottish burghs in some of their more important aspects.
When burghs were first established in Scotland it is impossible to say. But that they did exist as compact, well-organised bodies in the first half of the twelfth century, is proved by the Laws of the Four Burghs, compiled in the reign of David I., and sanctioned by him. We can scarcely conceive, in fact, of a country possessing a home and foreign trade without having also industrial and commercial settlements. The old chronicler Wyntoun tells us as regards Macbeth, whom the genius of Shakspeare has invested with such lurid light, that
All hys tyme wes gret plenté
Abowndand bath in land and se.
We may therefore assume that such settlements existed in Scotland in the early part of the eleventh century, as they certainly did exist in England at a much earlier period.
The selection of the sites of these infant settlements was doubtless largely determined by considerations of natural adaptation. The bay of the bend of the navigable river or estuary, which afforded ready access from the sea as well as shelter to the small craft that sufficed for the trade of these early times, probably led to the first settlement of such burghs as Berwick, Dundee, Arbroath, Aberdeen, and Inverness. The protection offered by the proximity of a royal castle doubtless favoured the formation and growth of Edinburgh, Stirling, Roxburgh, Forfar, and Ayr. The material advantages derivable from connection with a cathedral or monastery and all the fostering influences of the Church, facilitated the establishment of St. Andrews, Glasgow, Brechin, Dunkeld, Dunblane, Jedburgh, Paisley, Kelso, Selkirk, Dunfermline, and Canongate. The encouragement which the great temporal lords were wise enough to give to early traders and merchants to settle in their territories, by affording protection and privilege in return for the wealth and influence which flowed from such centres of peaceful industry, led to the formation of many subordinate towns. These early burghs consisted of three classes – royal burghs, burghs of regality, and burghs of barony. When a town was established on the royal demesne, and the townsmen held their houses, ground and privileges directly from the Crown, it was known as a king’s burgh. References to such burghs are frequent in the charters of David I. in the first half of the twelfth century, and in the charters of subsequent monarchs. When a lord, lay or ecclesiastic, established a burgh within his lordship, and granted it a charter of privileges, that charter was usually confirmed by the Crown, and the nature and extent of the jurisdiction conferred determined whether the burgh was a burgh of regality or of barony. A grant of regality was the highest that could be given to a subject. It took as much out of the Crown as the sovereign could give. It, in fact, invested the person who received it in the sovereignty of the territory. A grant of barony was of a lower order. In it the four pleas of the Crown – murder, fire-raising, rape, and robbery, were usually, though not invariably, reserved for trial by the king’s officers. When a bishop or abbot founded a burgh under a royal license, as Canongate was founded under the express authority of King David in his still extant charter to Holyrood, and as Glasgow was founded in terms of the charter of William the Lion to the bishop, the burgh was known as a bishop’s burgh, or as a church burgh. Many of these church burghs were originally burghs of barony or of regality, and afterwards became royal burghs. Thus, Glasgow was first a burgh of barony, and afterwards a burgh of regality, before it was emancipated from dependence on the Archbishop, and raised to the rank of a royal burgh.
But of all burghs – whether royal burghs or burghs of regality or barony – the same story has to be told in its general features. In its first rude beginnings each burgh was an aggregation of persons engaged in various descriptions of trade and handicraft. The value of such a settlement to the superior, whether sovereign, or lord – lay or ecclesiastic – could not be overlooked. It gave at once strength and pecuniary resources, and was an object to be protected and fostered. It thus became his interest to attract skill and enterprise to the infant settlement, and this could only be done by conferring privilege and securing protection. Both these objects could be attained by inducing the free population of the country, as well as strangers from other places, to settle in the town, and to acquire land within it, upon the condition of paying a fixed rent to the superior, and of contributing to the general defence. As an organization for defence, the settlement became a burgh, and as it grew and prospered it became more and more the interest of the superior to extend its privileges in return for the advantages which it yielded him. These privileges, immemorially enjoyed, acquired the force and validity of absolute rights, long before they came to be formulated in charters and written documents; and thus it is that the oldest extant burgh code, and the most ancient charters to particular burghs, are only collections and confirmations of pre-existing laws, customs, and privileges.
The Laws of the Four Burghs give minute and interesting information as to the constitution of the royal burghs of Berwick, Roxburgh, Edinburgh, and Stirling, which in their association formed the court of the Four Burghs – an institution that still survives, under strangely altered conditions, in the Convention of Royal Burghs. This code, though originally compiled for these four burghs, was soon extended to other royal burghs, and indeed came to be regarded as authoritative by all the burghs within the realm. It may be assumed, therefore, that the picture which it gives is substantially that of town life in Scotland in the middle of the twelfth century. Later fragments of legislation and charters supply additional materials for the construction of the following sketch of royal burghs.
The main condition of membership of these early communities appears to have been the possession of real property within the burgh. No man could be a king’s burgess, according to the Burgh Laws, unless he did service to the king for at least one rood of land. The land thus held by each burgess was known as his burrowage. He was bound to defend it, and to pay to the king five pence a year for every rood so held. On admission every burgess had to swear fealty to the king and to the bailies and to the community of the burgh. His name was then inserted in the roll of burgesses, and that roll had to be produced at the court or eyre of the Great Chamberlain, who, as representing the sovereign, periodically visited all the royal burghs, supervised their conduct, and disposed of appeals from the decisions of burgh magistrates.
In the earliest stages of burghal development, the annual payments by the burgesses to the Crown, all the fines and issues of the burgh court, and the petty customs exacted in respect of goods entering the burgh, were collected and paid over to Exchequer by a crown officer known as the bailie, who seems, moreover, to have exercised a certain civil and criminal jurisdiction within the burgh. After a time the Crown, adopting a practice which had been previously followed in England, farmed out at a fixed rent, sometimes to private individuals, sometimes to guilds or associations, and sometimes to the burgesses themselves or to the magistrates as acting for them, the right to levy all the rents, customs, and other dues exigible by the Crown within the burgh during a specified period.1 Most frequently the right to levy these sums appears to have teen conferred in Scotland on the burgesses themselves, acting through their own officers. This arrangement usually took the form of a lease, for which sometimes a grassum, or capital sum, was paid, and was calculated so that the difference between the sums received on behalf of the burgh, and the sum paid to the Crown, sufficed to meet the necessary burghal expenses. At a still later date the arrangement was made permanent, and the Sovereign granted a charter of the burgh to the magistrates and community, in feu farm as it was termed, for payment annually to Exchequer of a fixed amount as in full of all claims. Thus in 1319 Aberdeen had its payments commuted into an annual charge of £213 6s. 8d. Scots, while in 1329 Edinburgh was placed on a similar footing, – its annual payment being fixed at 52 merks. In 1359, Dundee received a charter by which its annual payment was fixed at £20 sterling. The annual payment by Perth was fixed at £80; by Inverness, at £53 68. 8d.; and by Montrose, at £16, In all these cases the permanent fermes or rents thus fixed seem to have exceeded the rents payable under the leases previously held from the Great Chamberlain. This arrangement still continues, and the several royal burghs pay annually into Exchequer the feu farm rents stipulated in their charters from the Crown.
In addition to the revenues derived from these sources, the great majority of the royal burghs received at various times from the Crown grants of land and other sources of income to enable them to bear the future charges of the municipal establishment, and to meet the obligations imposed by law and practice upon burghal communities. The property and revenues so vested in the burgh constituted its common good, and is still held for, and applicable only to, properly burghal purposes. As regards most burghs, however, it is to be lamented that a long course of mismanagement, and illegal appropriation to private and other irregular uses of what was conferred for totally different purposes, has reduced the common good to very small proportions.
Whatever may be thought of burgess-ship in the present day, it conferred no insignificant privileges in former times. When slavery was the lot of the great bulk of the labouring classes, the Burgh Laws proclaimed that if any man’s thrall, baron’s or knight’s, came to a king’s burgh, and bought a borrowage, and dwelt in it for twelve months and a day without challenge of his lord or of his bailie, he should be evermore free as a burgess within that burgh, and enjoy its freedom. That a similar law existed in England, in France, and in Germany, does not derogate from its importance in Scotland. No doubt, as has been pointed out by Mr. E. W. Robertson, the attainment of freedom and burgess-ship under the law was not a thing of easy accomplishment. A bondman might escape into a town and elude observation for a time; but unless he brought with him the means of purchasing a tenement, and actually acquired one, his residence was ineffectual But property in these days consisted mainly of stock which could not be sold except in the presence of witnesses, with all the formalities prescribed by the law; and it is almost inconceivable that any bondman or person attached to the soil could realize the means wherewith to purchase a burrowage without the knowledge and challenge of his lord. The object of the law was probably to prevent bondmen, or native men as they were sometimes called, from settling in burghs and prosecuting their callings for the benefit of their lords. But for this salutary provision it would have been the interest of the lords to encourage the settlement of their bondsmen in towns. The servile element would thus Lave existed to a large extent among the burgesses, with what deteriorating effect it is not difficult to imagine. But the declaration that the possession and occupancy of a burrowage for a year and a day secured the freedom of the owner, and entitled him to all the privileges of burgess-ship, effectually prevented such a result, and made every burgh a centre of freedom. It obviously also gave encouragement to strangers to settle in burghs, and we know, as matter of fact, that the prosperity of the early Scottish burghs was largely promoted by the immigration of large numbers of foreigners during the twelfth and thirteenth centuries. During the reigns of King David’s immediate predecessors, Edgar and Alexander I., there is reason to believe that many Flemish emigrants brought with them into this country, as into England, the thrifty industrious habits of their countrymen, and a knowledge of the trades and manufactures practised in Flanders. So also when, in the reign of David’s successor, Malcolm IV., the unwise policy of Henry II. drove all foreigners out of England, they flocked to Scotland and found a ready welcome among its burgesses. The names of Flemish settlers accordingly frequently appear as Scottish burgesses. When David I. authorised Robert, Bishop of St. Andrews, to establish a trading burgh near the Cathedral, he transferred to the bishop the services of Mainard the Fleming, to be his bailie, in order that the Fleming’s experience as a king’s burgess in Berwick, might be available in the establishment of the new burgh. The enlightened policy of the Scottish burghs in thus encouraging the settlement of those enterprising foreigners in their midst, was also frequently repaid to the State by efficient service in time of war.
The Exchequer Rolls for 1327, 1328, 1329, and 1331,2 show that Flemish merchants were settled in Perth, Edinburgh, and Inverkeithing, in the reign of Robert the Bruce and David II. The accounts of the bailies of Inverkeithing to Exchequer, rendered in 1330, the year after the death of King Robert, allude also to an English Factory at Clackmannan. Mr. Burnett notices that in Berwick the Flemings lived apart as a separate community, indicating a settlement of considerable numbers, and he calls attention to the fact that about a fifth of the goods chargeable with custom in Aberdeen, Dundee, and Perth, about 1331, was exported by foreigners.
After a time, burghal communities assumed the power of regulating the conditions of burgess-ship, and exercised exclusively the discretionary and arbitrary power of making burgesses. Formal admission by the magistrates, with consent of the community, and subsequent enrolment were prescribed; and with a view, probably, at once to enhance the value of the right, and to provide funds for the public works and other requirements of the burgh, admission both as a burgess and guild brother came to be sold at prices fixed by tariffs approved of from time to time by the governing body. Sometimes burgess-ship was conferred in return for public service done to the burgh, for example, in the construction or repair of streets. Sometimes also, it may be added, marriage with the daughters of burgesses was rewarded by admission to the privilege. However it is to be explained, it is the fact that the husbands of the daughters of burgesses regularly received and still obtain admission to the ranks of burgesses on more favourable terms than others.
Residence does not appear to have been an indispensable condition of admission as a burgess in the oldest burghs, except with a view to a bondman acquiring freedom. The Burgh Laws, the legislation of William the Lion in the latter half of the twelfth century, the Statutes of the Guild in the former half of the thirteenth century, and the Iter Camerarii in the latter half of the fourteenth century, show conclusively that at these periods there were non-resident as well as resident burgesses, though those non-resident seem to have only enjoyed limited rights and privileges. At the same time, it can scarcely bedoubted, that residence in the burgh was much more in accord with the objects of burghal organization than non-residence could be, and so we find residence encouraged by the first charters of several old burghs. Thus in his charter to Ayr, William the Lion granted peculiar privileges to the burgesses ‘who shall come and inhabit his said burgh, and shall there settle and remain.’ And when Alexander II. made a burgh at his new castle of Dumbarton, in the first half of the thirteenth century, he gave to the burgh ‘and to his burgesses remaining therein, all the liberties and free customs which his burgesses in Edinburgh and remaining therein had.’ In later times, also, residence came to be regarded as essential to burgess-ship. This appears from the frequent legislation of parliament, the ordinances of the convention of burghs and the acts of town councils.
In the earliest times of burghal history in Scotland, women appear to have exercised the privileges of burgess-ship as well as of membership of the merchant guild. This is shown by a clause in the Burgh Laws which commences thus – ‘gif a man or a woman that is burgess die in burgh,’ etc., and a clause in the Statutes of the Guild declares that no persons shall be received into the guild for less than 40s., except ‘they be gild sonnes and gild daughters.’ Entries also occur in the early records of some burghs of the admission of women as burgesses and guild brethren, but no where do women appear to have taken part in the administration of the affairs of burghs or guilds. Merewether and Stephens state that, in England, females were never admitted as burgesses, though they were admitted as members of guilds. But in Scotland there seems to be no reason to doubt that every member of the merchant guild had first to be a burgess and so to become free of the burgh. In this respect they, as well as in many others, the constitution of the old Scottish burghs was more liberal than that of the sister burghs of England.
The freedom of the burgh, implied in admission as a burgess, involved submission to various duties and obligations, and carried with it important monopolies and privileges. To these reference may shortly be made.
The burgess had, as has been seen, to defend his burrowage. He was liable to watch and ward, and to take his share in the defence, not only of the town, but of the kingdom. In later times the burghal levies, commanded by the provost and bailies, took the field, equipped at their own cost, in obedience to the summons of the Sovereign, and did effective service to the state. The provost and many of the burgesses of Edinburgh, it will be remembered, fell beside their Sovereign on the fatal Field of Flodden, and all through the middle ages each burgess was required to provide himself with military weapons, and to take part in the periodical musterings and weapon-shawings which were proclaimed and supervised by the magistrates of burghs. The burgess was also bound to maintain a house upon his burrowage, and if he was made burgess in respect of waste land, and had no inhabited house within the burgh, he behoved to have a house built and occupied after a year. He had to attend the three head courts of the burgh, held after the Feast of St. Michael, Yule and Easter. He had to be provided with measures and weights, sealed with the seal of the burgh, and it was incumbent on him, whether resident or non-resident, to attend the Chamberlain’s Eyre and to answer to his name when the roll of burgesses was called. He was bound to watch the burgh, and the arrangements for this in early times were of the simplest kind. An officer of the burgh went his rounds, and with a staff struck the door of each house which was bound to provide a watchman. From each such house, a watchman of full age, and furnished with two weapons, had to come forth and to watch the burgh ‘wisely and busily’ from curfew till sunrise, under the penalty of 4d. In addition to these duties, the burgess was subject to all the obligations incident to the possession of real property, viz: liability to pay a share of common civic burdens, and to sustain in turn such offices as the law imposed on the free inhabitants of burghs. These obligations were known in Scotland, as in England, by the term, Scot and Lot.
The monopolies and privileges enjoyed by burgesses were of the highest importance. No foreign merchant could buy wool, hides, or other merchandise unless within burgh, and from a burgess. No one not a burgess could buy wool to dye, or make or cut cloth. All merchandise (except salt and herrings arriving by sea, which had to be sold on board ship) had to be presented at the market cross, and there offered to the merchants of the burgh in good faith. Merchants from abroad were prohibited from selling their merchandise elsewhere than in burgh, or to others than merchants of the burgh. They were also prohibited from selling cloth in retail, but only in wholesale, and within burgh, to merchants of the burgh. No one other than a burgess could have an oven on his land, or keep hand mills, or make lard for sale. Even churchmen and barons, with all other secular persons, were prohibited from buying wool, skins, hides, and other staple commodities, and were bound to cell such articles of merchandise, when their own produce, to merchants of burghs within the sheriffdom and liberty in which they resided. Commerce was, in fact, rigidly forbidden to every class except burgesses, and the sons of burgesses so long as remaining in family with their fathers. William the Lion also granted to burgesses and their heirs freedom from toll and lastage, and from pontage or passage, as well within as without all the havens within the kingdom on both sides of the Scots Sea, as the Firth of Forth was then termed.
Then, every burgess had right to be tried by his peers. He might decline the jurisdiction of any court outside of the burgh, – even the king’s court, – and demand, when challenged in any suit, to be tried in the court of his burgh before his alderman or bailie. Due respect to the royal authority was necessary, however, so that, when cited to appear before a king’s court, he was bound to appear and claim his privilege, otherwise he became amenable to its jurisdiction. But no burgess could be summoned by a king’s officer unless accompanied by an officer of the burgh; and no person residing in burgh, who was attached for any cause by a king’s bailie, could be removed beyond the liberty of the burgh, either to the castle or to any other prison, unless he failed to find surety. Even in a question with the castellan or keeper of the king’s castle, the rights of the burgh and of the burgesses were sharply defined. If the castellan aggrieved a burgess, the burgess had to seek redress according to law outside the gates of the castle. But if a burgess did wrong to the castellan, the castellan had to seek redress in the burgh court. Again, the castellan could not require a burgess to lend him goods of greater value than forty pence, or for a longer period than forty days. The castellan was, moreover, prohibited from entering the premises of a burgess and slaying swine or poultry. When he needed these, he had to go to the burgess and ask to purchase them for behoof of the king. But if the burgess refused to sell them, and the castellan afterwards found them on the street, he might take possession of them, but was bound to pay a price fixed by the neighbours. Even this privilege, however, the castellan could only exercise three times a year, viz., before Yule, Easter, and Whitsunday.
The burgh laws also contained important modifications of the general law and practice in regard to the wager of battle. Outside of the burgh, the wager of battle was a recognised institution, to which even the Church lent its most solemn sanction; and for the burghal code to have prohibited it altogether would have been, as Dr. Burton observes, a radical measure which might indeed have compromised the rank taken by the burgesses in the body politic. But the burgesses of these early times recognised the truth that the spirit of peace is essential to commercial and manufacturing enterprise, and so the laws and customs of the burghs were expressly designed to foster that spirit. If two quarrelsome burgesses resident in the same town chose to settle their quarrels by an appeal to arms, there seems to have been nothing to prevent them. But a resident burgess was not bound to fight a rustic or non-resident burgess, nor an “uplands man,” i.e., a man resident in the country, unless the challenge of the uplands man was of treason, or involved a question of freedom. He could, if he chose, defend himself by law in the court of the burgh. Under any circumstances, when a burgess was to fight an uplands man, he had to go out of the burgh to do so. The other provisions of the burghal code on this subject were all such as to favour the king’s burgess. He might have battle of the burgesses of an abbot or friar, i.e., of a church burgh, or of an earl or baron, i.e., of a burgh of regality or barony, but they could not require him to fight. And, again, when a burgess was challenged to battle, and was too old to fight, he might plead his age, and purge himself of that whereof he was accused by the oaths of twelve men such as himself.
Space will not permit us to enter upon the old burgh laws of succession in heritage and movables. It must suffice here to say that, so early as the twelfth century, burgesses were vested in the absolute property of their burrowages; the succession of their heirs was anxiously secured on the principle of primogeniture; and while alienation to strangers was discouraged, it was competent in cases of necessity. In fact, the provisions of the Laws of the Four Burghs are carefully framed, highly artificial specimens of jurisprudence, and embody principles many of which have survived till the present day.
Scarcely, if at all, inferior in importance to the monopoly of trade and commerce enjoyed by the burgesses of king’s burghs, and to the right which they possessed of selling and transmitting their property, was the right which they also had, in the earliest period of record, to elect their own magistrates and the officers of the burgh to whom was entrusted the administration of the burgh laws in the burgh courts. Without this privilege, indeed, and that of local government of which the privilege formed part, it is difficult to see how they could have made their other rights and privileges effectively operative.
On this subject the Laws of the Four Burghs enact that, at at the first moot or public assembly after Michaelmas, the magistrates, designated prepositi, – literally persons put forward – shall be chosen through the council of the good men of the town, who are leal and of good fame. On their election the magistrates were required to swear fealty to the king and the men of the town, and to keep the customs of the town, and not to execute justice on any man or woman for wrath or hatred, fear or favour of any one, but only through ordinance counsel and doom of the good men of the town. They were also required to swear that neither for fear nor love, nor for hatred, nor for relationship, nor for pecuniary loss, should they fail to do justice to all men. Who were the good men of the town, leal and of good fame, in whom the election of magistrates was thus vested, has been made the subject of controversy. But there seems to be little room for doubt that they were the permanent free inhabitants of the burgh – the holders of the burrowages, duly admitted, sworn, and enrolled as burgesses, who performed the duties and enjoyed the privileges incident to that relation. The Statutes of the Guild ordain that the mayor and prepositi shall be chosen at the sight and by the consideration of the whole community, and the whole community thus referred to appears to be synonymous with the good men, leal and of good fame, mentioned in the Burgh Laws. The oldest record of an election in Scotland is that of Aberdeen, at Michaelmas, 1398. It may be thus translated, – ‘On which day, William of Chamber, the father, with the consent and assent of the whole community of the said burgh, is elected to the office of alderman, and Robert the son of David, Simon of Benyer, John Scherar, and Master William Dicson, are elected to the office of bailies.’ The election of the alderman, bailies, and sergeants or burgh officers for the following year, is also made in the same terms, ‘with the consent and assent of the whole community of the burgh.’
No distinct reference occurs in the Laws of the Four Burghs to the body now known as the Town Council, but one clause enacts that, in every burgh of the realm, the ‘superior’ – which in the old Scotch translation is rendered ‘mayor or alderman,’ shall cause twelve of the more sufficient and discreet burgesses of the burgh, to swear by their great oath to keep and maintain to the utmost of their power all the laws and just customs of the burgh. This body of twelve was probably the body which originally received and afterwards retained the name of the duodene or dusane, long after the number of its members exceeded the limit of twelve. In the oldest records of many of the Scotch burghs ‘the dozen’ appears to have been used to express what is now meant by the term ‘the town council.’ A more distinct reference to a body which may correspond with the council, is contained in the Statutes of the Guild, enacted originally for Berwick, but subsequently accepted by the other burghs of Scotland, In that document the following provision occurs:- ‘We ordain, moreover, by common consent, that the community of Berwick shall be governed by twenty-four good men, of the better, more discreet, and more trustworthy of that burgh, thereto chosen, together with the mayor and four bailies. And whensoever the said twenty-four men are summoned to treat concerning the common business, he who comes not at the summons before night, shall give two shillings to the guild.’ These twenty-four men had to be elected along with the mayor and four bailies, and it can scarcely be doubted by the same body of electors. In conformity with the principle of popular election thus recognised, the election of twenty persons as common councillors in Aberdeen in 1399, was made on the same day with that of the alderman and bailies, and apparently also with the consent and assent of the entire community.
There is thus every reason to believe that at a very early period, if not, indeed, at the earliest period of the municipal history of our oldest burghs, they were governed by magistrates or prepositi, consisting of a chief magistrate, known first as the mayor or alderman and afterwards as the provost, and the bailies, and by a selected body of burgesses called the duodene, dusane, or council. The magistrates, and probably also the dusane or council, were elected annually, at or about Michaelmas.
The Burgh Laws made express provision for the appointment of liners, who had to be chosen by the prepositus, alderman, or provost, at the sight and with the counsel of the community. They were required to be at least four in number, and wise and discreet men, so that no complaint might come to the Chamberlain for defect of lining. On their election the liners had to swear that they would line faithfully, according to the right and old marches within burgh. These liners are the ancestors of the present Dean of Guild Court, which, however, is the creation of a much later age. Previous to the institution of that court, the magistrates of the burgh exercised the whole jurisdiction which has since been devolved upon it, and, in point of fact, the magistrates of burghs in which there is no Dean of Guild, can still exercise their original jurisdiction in this respect.
Elections of another class of officials are also recorded in the oldest burgh records, along with those of the magistrates and officers of the burgh, and of the liners. These were apprisers of flesh and ale tasters. The function of these persons is indicated by the name of their office, and is sufficiently explained by the terms of the oath which they were obliged to take. The apprisers of flesh had to swear faithfully to apprise flesh according to the price at which beasts were sold in the country. The ale tasters had to swear faithfully to taste the ale, and lawfully to apprise the same according to the price of malt. In some burghs apprisers of wine were elected, whose business it was to see that the quality and price of the wine sold in the burgh were according to the regulations in force at the time.
Burgesses also possessed a variety of other privileges. Under the feudal law, a vassal was liable to a number of casualties of superiority, such as merchet and herezeld, which were often most burdensome. From all these the burgess was exempted. He could not even be poinded for debt without the consent of his prepositus – provost or bailie. If he claimed a debt from one resident out of the burgh, by which was probably meant a non-resident burgess, and the non-resident burgess denied the claim, he had to answer in the court of the burgh. If a debtor disputed the claim of a burgess, the burgess might insist on the debtor’s oath, just as in the present day. If an ‘uplands’ man accused a burgess of theft, the accused might free himself by his own oath and the oaths of twelve of his neighbours. And when a burgess was absent, with the leave of the Church and of his neighbours, on a pilgrimage to the Holy Land, or to any other sacred place, his house and means were declared to be in the king’s peace, and in the bailie’s peace, till his return.
In order to foster the spirit of good neighbourhood by the interchange of friendly services, the Laws of the Four Burghs imposed on burgesses reciprocal duties. If a burgess was attached beyond the burgh for a debt or for any misdeed, his co-burgesses were bound to go and bail him, at their own expense if he was within the sheriffdom, or at his cost if beyond it. If accused of any misdeed, and unable to find bail, his co-burgesses were bound to keep him ‘in fastening’ in his own house for fifteen days. If, after the expiry of that time, he still had failed to find surety, the burgesses were required to commit him to prison, if there was a prison in the burgh. If there was no prison, then they were bound to deliver him to the king’s bailie, by whom he was appointed to be placed in the custody of the king’s sergeant. One of the provisions of the Fragmenta Collecta sets forth the duty of burgesses to be security or pledge for each other, once, twice, thrice, until loss resulted, after which the loser was relieved from the obligation to be security further for the person through whom he had suffered, unless of his own free will, and on being compensated for the loss he had sustained. This requirement was specially applied to brewers, bakers, and fleshers – all of them probably as dealing in what were regarded as the necessaries of life – who were bound to accommodate their neighbours with bread, ale, and flesh as long as they had these articles for sale; but it was provided that, if the person so favoured failed to pay for the articles so supplied, he should be distrained, and would not be entitled to similar accommodation in future.
Possessing these privileges, it seems to have been intended that the respectability of the burgess class should be maintained, as far as this could be done by prohibiting burgesses from engaging in certain avocations which in early times were regarded as incompatible with the status of a burgess Thus, in the Articles appointed to be inquired into at the Chamberlain Eyre, inquisition was directed to be made whether fleshers who were burgesses put to their hands to kill ‘mairts,’ and whether dyers who were burgesses ‘put their hands in the wad.’
Within the burghal community itself there were other organisations which, though subordinate, were of great influence. The most ancient as well as the most important of these was the guild of merchants, an association for purely trading purposes apart from mechanical pursuits, which frequently attained a position that enabled it to overshadow, and sometimes apparently even to absorb, the municipal organization.
How early merchant guilds were established in the Four Burghs, it is impossible to say. As associations for mutual help, guilds existed among the Anglo-Saxon communities of England as early as the eighth, probably in the seventh, century. But the existence of merchant guilds in Edinburgh, Berwick, Roxburgh, and Stirling is recognised in an enactment of the Laws of the Four Burghs, to the effect that dyers, fleshers, shoemakers, and fishers should not be in the merchant guild unless they abjured the practice of their trade with their own hands, and conducted it exclusively by servants. The Assise of King William, about the end of the twelfth century, provided that the merchants of the realm should have their merchant guild, with liberty to buy and sell in all places within the bounds of the liberties of burghs, and empowered the servants of the guild to apprehend all persons who invaded its rights and privileges. William’s successor, Alexander II., also conferred on the burgesses of Aberdeen, by special charter in 1222, the right to have – which probably meant to continue and uphold – their merchant guild; and many royal charters to other burghs, of subsequent date, conferred similar privileges. Twenty-seven years later than Alexander’s charter to Aberdeen, the mayor of Berwick and other good men of that burgh framed what is known as the Laws of the Guild of Scotland. These statutes soon came to be accepted and quoted as authoritative in Edinburgh and amongst the burghs of Scotland generally.
How a code enacted for the regulation of the merchant guild should have dealt, as this code did, with election of the magistrates and governing body of the entire community, it is not very easy to explain except on some such hypothesis as that the merchant guild comprehended so large a proportion of the burgesses as to be practically co-extensive with, and equivalent to, the burghal community. The relation of the merchant guild to the burgh in Scotland in these early times, is involved in much obscurity. Probably, however, here as in England, the comparative wealth and influence of the merchant class enabled them not unfrequently to engraft a commercial constitution upon the burgh, which then took the name of guild, as synonymous with burgh. In many cases the great bulk of the burgesses – certainly the most influential of them – were traders and members of the guild. From the guild brethren, therefore, the magistrates and holders of burghal offices would naturally be selected, and as the same individuals would be appointed officers of the guild also, the distinction between the functions appropriate to the respective offices would be apt to disappear, and the bye-laws of the guild would come to trench upon matters of proper burghal administration. This theory explains the intermixture, in the Laws of the Guild, of matters of burghal as well as of guild administration, and it also affords an explanation of the fact that in the record of the earliest election of magistrates and office-bearers in Edinburgh, now extant, the provost, dean of guild, bailie of Leith, treasurer, Serjeants, apprisers of flesh and wine, and the duodene are all termed officers of the gild. This election bears to have been made ‘at the first Head Gild held after the feast of St. Michael, in the Tolbooth of the burgh, the brethren being called and compearing, on 3rd October, 1403.’3 By some such process of assumption, the members of the guild appear to have gradually obtained a monopoly of office which it took many long years of straggle on the part of the incorporations of craftsmen to break down.
Be that as it may, the code known as the Guild Laws seems to have partaken largely of the spirit of brotherhood which characterised the old guilds of England, whether these were territorial, or religious, or social, or for purposes of trade. It proclaimed the duty of all the members to live in peace and concord; it recognised the rights of its own members to mutual consideration at all times, to sympathy and assistance in trouble, to relief in sickness and poverty, to the offices of religion and the last marks of respect after death, and to kindly help to the orphan. It enforced fair and honest trading according to the notions of the times, and it insisted upon a loyal promotion, by each member, of the general interests, with the corresponding obligation to preserve the counsel of the guild.
The privileges of a member of the guild, as these are set forth in the Guild Statutes, so closely resemble those which have been found to appertain to a burgess, as to support the conclusion that guild brotherhood rested on burgess-ship, and was but a higher grade of burghal organization.
Nothing is said in the Statutes of the Guild as to the election of the office-bearers of the guild as distinct from the magistrates of the burgh, who seem to have exercised jurisdiction in regard even to guild offences, but in conjunction occasionally with the dean of guild. The aldermen and the ferthing men – the latter a term which probably means the bailies in relation to the charge which each had of a quarter of the burgh, by virtue of a very ancient arrangement, under which burghs were divided into quarters – are alone recognised as the persons by whom meetings of the guild should be called, and the bailies are referred to as presiding in the courts of the guild. The brethren of the guild were all bound to take part in the deliberations on the common affairs, and were required, under penalty of twelve pence, to assemble at the ringing of the bell, whenever the alderman, ferthingman, and other good men appointed. What passed at these deliberative assemblies was regarded as secret, and any burgess, who, contrary to his oath, revealed the counsel or showed the secrets of the guild, was liable to punishment, involving for a third offence the loss of the liberty of the burgh for life, and the stigma of infamy which prevented his enjoying the freedom of any other burgh in the realm.
It is noticeable that the heavier fines imposed by the guild statutes in respect of contraventions of the regulations in regard to trade, etc., consisted in a cask of wine to the guild. The frequency with which this penalty is prescribed, suggests the suspicion that, howsoever the early Scottish guilds may have differed from the still earlier guilds of England and the Continent, the love and practice of conviviality were common to all.
Whilst the burghs monopolised the export and import and inland trade of the country, they were also the great centres of manufacturing industry, as that was then known, and a large portion of the inhabitants of many of the towns were handicraftsmen – the masters, or those who carried on business for their own behoof, being free and burgesses, while their servants were unfree, and many of them probably bondsmen. These masters seem in early times to have imported the raw material with which they worked. As traders and merchants, therefore, many craftsmen must necessarily have been members of the merchant guild; but it is impossible now to ascertain what burgesses were admitted into the early merchant guilds, and what were excluded. That all guild brethren were burgesses seems evident, but it is also certain that some classes of craftsmen were inadmissible into the fraternity. The charter of Alexander II. to Aberdeen expressly excluded fullers and weavers from the merchant guild, though in the manufacturing towns of England and the Continent these crafts were two of the most skilled and important. Whatever may have been the reason for such exclusions, it is certain that in process of time the lines of separation between the merchant guild and the crafts became broader and more marked. The mercantile classes became wealthier and more important; the handicraftsmen became more and more confined to the poor and the unfree. Then the merchant guild made the practice of certain trades a ground of exclusion from the fraternity. Danish, German, and Belgian guild statutes ordain that no one with ‘dirty hands,’ or with ‘blue nails,’ or who ‘hawked his wares on the streets,’ should be a guild brother, and that no craftsman should be admitted till he had forsworn his trade for a year and a day. The Laws of the Four Burghs excluded dyers, fleshers, and shoemakers from the merchant guild, if they worked with their own hands, and the Statutes of the Guild prohibited any butcher from dealing in wool and hides so long as he carried on his trade. But the merchant guild not only excluded craftsmen; it assumed the right to regulate them. Thus the Statutes of the Guild contain ordinances for shoemakers, glovers, skinners and butchers.
This condition of matters could not long continue without some effort being made by the craftsmen to improve their condition, and that object could only be effected by organization. The merchant-guild presented itself as a model of the required organization, and so suggested the formation of subordinate fraternities and combinations. Societies of craftsmen were accordingly formed, which afterwards obtained recognition from the governing body of the burgh, and sometimes from the Crown. But even these societies were exclusive in their constitution and aims. They were so many leagues of master craftsmen against the encroachments of the merchant class; but they dominated in turn over the unfree workman, and waged a constant war against the invasion of their own trade monopolies from without. It was, in truth, as has been observed by Mr. E. W. Robertson, a hard age for the dependant classes wherever they were, and the ‘bondman in burgh’ may at times have cast many a wistful glance towards the blue hills in the distance. Monopoly and exclusive dealing were only in accordance with the spirit and policy of the age; and must inevitably have arisen in every quarter, when it was enacted that every sale and purchase should be made ‘in port,’ and in the presence of witnesses chosen ‘in burgh,’ an enactment ‘which must, of course, have concentrated all the traffic of the district connected with the burgh in the hands of the resident population.’
Of the crafts and occupations prosecuted in the burghs at the time under consideration, the old laws and forms of procedure mention bakers, brewers, (male and female), fleshers, millers, fishers, tanners, skinners, shoemakers, dyers of cloth, maltsters, wine taverners, tailors, saddlers, and woolcombers. That there were many others cannot be doubted. The memorials of London and London life in the thirteenth, fourteenth, and fifteenth centuries, mention ropers or ropemakers, ironmongers, nailmakers, armourers, and a great variety of others, including many the names of which are now forgotten. In addition to these, however, evidence exists in the records of Scottish burghs, that Seals of Cause were granted by the magistrates and councils incorporating or regulating hat makers, wrights, masons, weavers, hammermen, (including blackmiths), goldsmiths, lorymers, cutlers, bucklemakers, armourers, fleshers, coopers, walkers and shearers, bonnetmakers, surgeons and barbers, candlemakers, bakers, tailors, skinners, and furriers. No more interesting chapter in the history of our old towns could be written than that which would describe the gradual development of those various crafts, notwithstanding the hostility they had to encounter from the mercantile classes, as that took form in the legislation of parliaments and town councils, their incorporation by means of seals of cause granted by the magistrates, the constitution of these subordinate incorporations, their struggles to participate in the management of the common affairs of the burgh, and the steps by which they laboriously gained their object. But these are matters which cannot be entered upon here.
The limits of this article have already been so far exceeded, that it is impossible even to advert to much that is essentially connected with the subject. It appears to us, however, that an acquaintance with the leading features of the constitution of burghs, as we have attempted to refer to them, underlies everything like an intelligent survey of town life in mediaeval times.
A word in conclusion is to the beneficial influence which burghs have exercised on the development of the country, and as to the obligations of citizenship in the present day. At a time when law and order were not established, when the power of the sovereign was restrained and sometimes overawed by the power of the feudal nobility, when the land was frequently devastated by foreign invasion or torn by contending and selfish factions, there were but two institutions that could be looked to for protection and security to the arts of peace. These were the Church and the Burgh. Of the former it can only be said here that, with all its imperfections and shortcomings, it was in this, as in other countries, the greatest and most powerful instrument in the promotion of civilisation, asserting a rude age of brute force and violence the eternal principles of justice and mercy, and appealing to laws higher and more sacred than those of earth. But next in importance to the Church must be placed the Burghs. They were associations for the prosecution of trade and commerce, to which security and protection – born of law and order – were indispensable. They had strength,for all defensive purposes, in their combination. But they were strong also in the possession of rights, acquired it may be by prescription, but confirmed and fortified by royal charters and parliamentary legislation. Admission to burgess-ship, like admission to the Church, emancipated the slave, and gave him and his family rights of property and personal rights of the most substantial kind. It gave him at once the sense of security which self-government confers. Whatever might be the condition of the royal courts, or of the courts of regality and barony, the burgess could always claim to be tried by magistrates of his own election – responsible to the burgesses, and bound to administer justice, not according to any arbitrary rules, but in conformity with a well-defined system of jurisprudence. Trade and commerce were exclusively in the hands of the burgess class, and to the burgess of energy and talent the way was open to wealth and influence, and to a position among the landed class. Under such circumstances, the trade of the country grew, and relations we established with the great commercial cities of the continent.Thus the Scottish merchant became acquainted with the products, the people, and the institutions of other countries, and the knowledge and experience which he thus acquired were speedily communicated to his countrymen. The wealth derived from mercantile enterprise gradually percolated through and enriched the kingdom. All these influences, conjoined with those derived from the settlement in the Scottish burghs of skilled merchants and craftsmen from abroad, served to elevate the standard of intelligence in the towns. Burghs became the homes of such education and culture as were then known, and it is to the honour of the descendants of the burgesses of the times to which reference has been made, that they founded and fostered schools and universities. That the old burgesses were intolerant and exclusive in the assertion of their commercial and trading monopolies, is true. But the principles of free trade were not understood in their days any more than the principles on which toleration of opinion now rests, and we must judge institutions as we judge men, according to the light and knowledge of the period in which they existed. The system of self- government which obtained in burghs from the earliest times was also a means of incalculable advantage in educating the burgesses, and eventually the people at large, for political action; and to the broadening, widening, elevating influence of such education we may attribute, in no inconsiderable degree, the popular reception of the principles of the Reformation, with all the material, intellectual, and religious advantages which have followed. Our greatest statesmen, therefore, are the first to recognise the obligations under which we lie to municipal institutions. The times have greatly changed since burghs were first settled and consolidated. But the municipal institutions of the present day are still safeguards of popular liberty, and whatever tends to lessen their influence, or weaken their hold on the allegiance of the people, cannot fail to be permanently injurious to the country. In the old times the merchant and the trader whose wealth and intelligence placed him in the foremost ranks of his fellows, deemed it an honour as well as a duty, to take his share in the management of the local affairs of his burgh. The same necessity exists still. The interests which our great municipal corporations in the present day represent and administer, are larger and more important than they ever were before, and it is to be hoped that, as in times past our merchant princes and men of acknowledged position and experience devoted themselves to civic affairs, so their successors in time to come will show that there is no decadence in public spirit, but that the sentiments of duty and of patriotism are sufficient to ensure that every one shall recognise the obligations of burghal life, and bear his fair share of its duties and responsibilities.
2 thoughts on “Art III. – EARLY SCOTTISH BURGHS., Vol. 2, May, 1883, pp.45-70.”