BOROUGH
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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
