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The Municipal Institutions of Scotland
By James D. Marwick

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.

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