Encyclopædia Britannica, Ninth Edition/Borough

by William Charles Smith

BOROUGH. Although the idea of self-government by a town is exemplified in the coloniæ and municipia of Rome, and in their duumviri, decuriones, and lesser senate, composed of the curial orders, which along with the defensor civitatis appear to have existed in vigour until the reign of Leo the Philosopher (Const., 46, 47), yet as the local power was gradually subordinated to the imperial, and as both in France and Italy it seems almost universally to have disappeared when the territorial jurisdictions, as well as the feudal fiefs, became hereditary, it is impossible to trace an historical connection between these institutions and the modern borough. In Spain and Languedoc, perhaps, the forms of ancient independence may have been continuously preserved, but the system of government by comes and scabini (or assessors), which was pursued in both France and Italy by the successors of Charlemagne, was obviously opposed to the freedom of towns. It is during the 11th and 12th centuries that we begin to read in charters of the citizens of Narbonne, the burgesses of Carcassonne, the consuls of Beziers, the magistrates of Rouergues, the capitols of Toulouse. It is during the reigns of Louis the Fat, Louis the Lion, and Philip Augustus that charters of commune become frequent. These charters, which sometimes bear to be granted on account of the poverty of the townsfolk, the enormities of the clergy, or the attacks of the local Seigneurs, were probably dictated by the pecuniary needs of the Crown; but they attest the growing power—the de facto rights of the industrial population. They distinguish between Bourgeoisies and Communes proper: the former obtained a confirmation of ancient customs, of exemption from feudal jurisdiction, of personal liberty, but they did not obtain an elective municipal government. In Italy the revival of civic autonomy was much more rapid. Although Frederic Barbarossa reserved to himself in the peace of Constance the right of nominating consuls in the Italian towns, Bishop Otho of Frisingen tells us that the imperial influence did not count for much; and in 1288, at least, we have in the Potestas (Podesta), the Concilium Generale, and Concilium Novem Dominorum of Siena, a type of the independent republican city.

The Saxon byrig or burh is properly the fortified house of the powerful man. Related forms are burgus (Latin of 4th century); burg (High German); baurgs (Gothic); borg (Gaelic); πύργος (Greek); bor, borc, and bourg (French); and broch, a pledge. The burgensis, or inhabitant of a walled town, was opposed to villanus, or inhabitant of the villa, or open town. The Gemot, or assembly of the original township, had the power of making by-laws (the Danish prefix means “town”), and of electing the Gerefa (Reeve), the Bydel, and the Tithing-man or constable, the first of whom represented the assembly in the courts of the hundred and the shire. The Gemot also saw to the collection of taxes imposed by the higher courts, the pursuit of criminals, and the search for stolen goods. In mercantile places, such as London and Bath, the chief officer was called Port-Gerefa from the gates in which the market was held.

The freeholder of this period had undoubtedly political as well as personal liberty. Generally speaking, however, although common property may have been held by a guild or corporation, and special privileges of trade or inheritance may have been enjoyed, there is before the Conquest little trace of municipal organization. The Lagemanni of Lincoln and the Justices of Chester were apparently among the most ancient resident magistrates, but the manner of their election is unknown. The Conquest divided the boroughs into those which formed part of the royal demesne and those which held of the barons and dignified churchmen,—the interest of the Crown and its grantees in the property and in the profits of fairs and markets, &c., being, at first absolute, but latterly converted into a firma burgi or perpetual rent from the whole borough in lieu of tribute from individual burgesses. The non-elective bailiff succeeded to the reeve, and proved a useful agent in carrying out the oppressive and arbitrary tallagia, which were often the price of new or confirmed privileges. The bailiwicks were sometimes farmed out, and this led to still more severe exaction. To the bailiff succeeded the mayor (major), who accounted to Exchequer for the annual rents of the borough. Grants of jurisdiction, of socan and sacan, of outfangenthef and infangenthef, and grants of the right of appointing præpositi (provosts), ballivi (from Greek βάλλειν or Latin bajulus), and justiciarii increase in number towards the reign of John, and are probably included along with the various exemptions from tolls, &c., granted by Henry II. in the “liberties and free customs” guaranteed by the Great Charter. The terms alderman, capital citizen, capital burgess, and jurat were of fluctuating signification; but the last three were finally applied to members of the Common Council which gradually took the place of the assembly of incorporated burgesses. The rights of a free burgess might be acquired by birth, apprenticeship, marriage, or purchase; and as prior to Edward III.'s Laws of the Staple these rights included exclusive privileges of trade, they were properly connected with the payment of local taxation and the performance of local duties, from which non-freemen (strangers and temporary residents) were exempt. In many cases it is probable that the “civitas,” or community of freemen, was identical with the convivium conjuratum, or Secular Frith Guild of traders and craftsmen, possessing portions of town land. Such voluntary associations for protection of trade, the administration of common property, or for religious and charitable purposes, were more highly developed in England than in any other part of Europe. The members of the leading industry naturally assumed the direction of municipal affairs, and when their guild was recognized by the Crown their bye-laws acquired a binding force. For instance, in deeds of the 12th century relating to the magistrates of Paris the terms burgenses and mercatores per aquam are used as synonymous. (Brentano on Gilds.) Such guilds gave compensation to brethren who had incurred losses by shipwreck or undeserved misfortune, and made gratuitous loans to poorer brethren for carrying on their trade. In was their special endeavour to obtain staple right, the right of coinage, immunity from tolls, &c. Gradually, however, the distinction arose between the merchants proper who formed the gildæ mercatoriæ, and the craftsmen, who had at first traded in the raw materials they worked with, but who were now oppressed and deprived of civic rights by their wealthier brethren. The man “with dirty hands” or; “blue nails,” the man “without hearth or honour, who lives by his labour,” or “hawks his wares in the streets,” was threatened with a serfdom like that which the barons and bishops had imposed. But at this juncture the great craft guilds arose to assert the rights of manufacture. In the time of Henry VI. their victory in England was complete, and the Crown, which had previously recognized the constitution and liberties of a town by confirming the guild, now used in its charters the words of express incorporation (communitas perpetua et corporata). A glance at the names and forms of the most modern municipality will show how closely trade organization and burghal government have been intertwined.

In Ireland the earliest traces of burghal life are connected with the maritime settlements on the southern and eastern coast. The invasion of Henry II. colonized these Ostman ports with Anglo-Norman communities, who brought with them, or afterwards obtained, municipal charters of a favourable kind. The English settlement obviously depended on the advantages which the burgesses possessed over the native population outside. Quite different from these were the new close boroughs which during the plantation of Ulster James I. introduced from England. The conquest was by this time completed, and by a rigorous enforcement of the Supremacy and Uniformity Acts the existing liberties of the older boroughs were almost entirely withdrawn. By the new rules published (in terms of the Acts of Settlement and Explanation) in 1672 resident traders were permitted to become freemen, but neither this regulation nor the ordinary admissions through birth, marriage, and apprenticeship succeeded in giving to Ireland free and vigorous municipalities. The corrupt admission of non-resident freemen, in order to outvote the ancient freeholders in parliamentary elections, and the systematic exclusion of Roman Catholics, soon divorced the “commonalty” from true local interests, and made the corporations, which elected themselves or selected the constituency, dangerously unpopular.

In Scotland burghs or burrows are divided into Royal Burghs, Burghs of Regality, and Burghs of Barony. The first were erected by Royal Charter, and every burgess held direct of the Crown. It was, therefore, impossible to subfeu the burgh lands,—a distinction still traceable in modern conveyancing. Where perhaps no charter ever existed, the law or proof of immemorial possession of the privileges of a Royal Burgh has presumed that a charter of erection once existed. The charter gave power to elect provost, bailies (French terms which superseded the ancient mayor and aldermen), and council, a power long exercised under the Act 1469, which directs the new council to be chosen annually by the retiring council, and the magistrates by both councils. The jurisdiction of these magistrates, which was specially reserved in the Act of 1747 abolishing heritable jurisdictions, was originally cumulative with, and as large as, that of the sheriff. It is now confined to police offences, summary ejections, orders for interim aliment (for prisoners), payment of burgh dues, and delivery of title deeds. Three head courts were held in the year, at which all burgesses were obliged to attend, and at which public business was done and private transactions were ratified. There were three classes of burgesses—burgesses in sua arte, members of one or other of the corporations; burgesses who are guild brothers; and simple burgesses. The Leges Burgorum apparently contemplate that all respectable inhabitants should have the franchise, but a ceremony of admission was required, at which the applicant swore fealty and promised to watch and ward for the community, and to pay his “maill” to the king. These borough maills, or rents, and the great and small customs of burghs, formed a large part of the royal revenue, and, although frequently leased or feued out for a fixed duty, were on the accession of James I. annexed to the Crown as an alimentary fund. Burgh customs still stand in the peculiar position of being neither adjudgeable nor arrestable; they are therefore bad security. The early charters contain the usual privileges of holding a market, of exemption from toll or tribute, and that distraint will be allowed only for the burgess's own debts. There was also the usual strife between the guildry and the craftsmen, who were generally prohibited from trading, and of whom dyers, fleshers, and shoemakers were forbidden to enter the guildry. Deacons, wardens, and visitors were appointed by the crafts, and the rate of wages was fixed by the magistrates. The crafts in Scotland were frequently incorporated, not by Royal Charter, but, as in the case of the cordiners of Edinburgh, by seals of cause from the corporation. The trade history of the free burghs is very important. Thus in 1466 the privilege of importing and exporting merchandize was confined to freemen, burgesses, and their factors. Ships are directed to trade to the king's free burghs, there to pay the customs, and to receive their cocquets or custom-house seals; and in 1503 persons dwelling outside burghs are forbidden to “use any merchandize,” or to sell wine or staple goods. An Act of 1633, erroneously called a Ratification of the Privileges of Burghs, extended these privileges of buying and selling to retail as well as wholesale trade, but restricted their enjoyment to Royal Burghs. Accordingly, in 1672, a general declaratory Act was passed confirming to the freemen in Royal Burghs the wholesale trade in wine, wax, silk, dyeing materials, &c., permitting generally to all persons the export of native raw material, specially permitting the burgesses of Barony and Regality to export their own manufactures, and such goods as they may buy in “markets,” and to import against these consignments certain materials for tillage, building, or for use in their own manufactures, with a general permission to retail all commodities. This extraordinary system was again changed in 1690 by an Act which declared that freemen of Royal Burghs should have the sole right of importing everything by sea or land except bestial, and also of exporting by sea everything which was not native raw material, which might be freely exported by land. The gentry were always allowed to import for their personal consumption and to export an equal quantity of commodities. The Act mentions that the Royal Burghs as an estate of the kingdom contributed one-sixth part of all public impositions, and were obliged to build and maintain prison-houses. Some of these trade privileges were not abolished till the Act 9 and 10 Vict. c. 17.

In the north of Scotland there was an association of Free Burghs called the Hanse or Ansus; and the Lord Chamberlain, by his Iter, or circuit of visitation, maintained a common standard of right and duties in all burghs, and examined the state of the “common good,” the accounts of which in 1535 were appointed to be laid before the auditors in Exchequer. The Chamberlain latterly presided in the Curia Quatuor Burgorum (Edinburgh, Berwick, Stirling, Roxburgh), which not only made regulations in trade, but decided questions of private right (e.g., succession), according to the varying customs of burghs. This court frequently met at Haddington; in 1454 it was fixed at Edinburgh. The more modern Convention of Royal Burghs (which appeared as a judicial persona in the Court of Session so late as 1839) probably dates from the Act of James III. (1487, c. 111), which appointed the Commissioners of Burghs, both north and south, to meet yearly at Inverkeithing “to treat of the welfare of merchandize, the good rule and statutes for the common profit of burghs, and to provide for remeid upon the skaith and injuries sustained within the burghs.” Among the more important functions of this body (on whose decrees at one time summary diligence proceeded) were the prohibition of undue exactions within burghs, the revisal of the “set” or mode of municipal election, and the pro rata division among the burghs of the parliamentary subsidy required from the Third Estate. The Convention still meets, but the reform of the municipalities, and the complete representation of the mercantile interests in the United Parliament, have deprived it of importance. In its great days it negotiated a treaty with Campvere, and one of its judgments was given effect to by Edward I. in the Parliament of Newcastle, 1292.

Burghs of Regality and of Barony held in vassalage of some great lordship, lay or ecclesiastical, but were always in theory or in practice created by Crown grant. They received jurisdiction in civil and criminal matters, generally cumulative with that of the Baron or the Lord of Regality, who in some cases obtained the right of nominating magistrates. Powers to hold markets and to levy customs were likewise given to these Burghs.

The Scotch burghs emerged slowly into political importance. In 1295 the procurators of six burghs ratified the agreement for the marriage of Edward Balliol; and in 1326 they were recognized as a Third Estate, granting a tenth penny on all rents for the king's life, if he should apply it for the public good. The Commissioners of Burghs received from the Exchequer their costages or expenses of attending Parliament. The burghs were represented in the Judicial Committee, and in the Committee on Articles appointed during the reign of James V. After the Reformation, in spite of the annexation of kirk lands to the Crown, and the increased burdens laid on temporal lands, the proportion of general taxation borne by the burghs (viz., 1s. 6d.) was expressly preserved by Act 1587, c. 112. The number of commissioners, of course, fluctuated from time to time. Cromwell assigned ten members to the Scotch burghs in the second Parliament of Three Nations (1654). The general practice until 1619 had been, apparently, that each burgh should send two members. In that year (by an arrangement with the Convention of Burghs) certain groups of burghs returned one member, Edinburgh returning two. Under Art. 22 of the Treaty of Union the number of members for Royal Burghs was fixed at fifteen, who were elected in Edinburgh by the Magistrates and Town Council, and in the groups of burghs by delegates chosen ad hoc. See Parliament. (See Connel, History of the Constitution of Towns; Stubbs' Constitutional History of England, vol. i.)

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