Page images
PDF
EPUB

were governed by a master1; and the haberdashers' gild of London, in the reign of Philip and Mary, by a master and four wardens 2.

There are various examples, in the records of Exchequer, of fines imposed for unauthorised gilds 3. From the expressions used in these records of adulterine gilds, and gilds without warrant, we may infer that these associations could not regularly be set up, without the royal authority. The mere circumstance of imposing a fine was, perhaps, no very satisfactory evidence of illegality, because we know that the Norman kings took this mode of filling their treasury on every occasion 1.

1 Magister liberorum hominum misteræ de peuterers. Ib. p. 33. 2 Magister et quatuor gardiani gildæ sive fraternitatis Sanctæ Katerina artis de marchant haberdashers civitatis de London. Fir, Burg. p. 34. * Maddox, Hist. Exchequer, p. 390.

4 See Hume's Hist. Eng. App. 2.

Ff

CHAPTER III.

HISTORICAL VIEW OF THE ANCIENT CONDITION, AND OF
THE MUNICIPAL CONSTITUTION, OF THE BURGHS
OF SCOTLAND.

As a great part of the knowledge which we at present possess, regarding the ancient constitution and customs of the burghs of Scotland, is derived from the collections known under the titles of Leges Burgorum, Statuta Gildæ, and Iter Camerarii, it becomes proper, before entering into any inquiry regarding the condition of those burghs, to submit some observations with respect to the authority of those collections; and, first, with respect to the Leges Burgorum.

There exist a variety of ancient manuscripts, containing, amongst other matters, a series of laws or customs, varying in its extent, and principally relating to the burghs of Scotland. This series is now known under the name of the Leges Burgorum. The more modern of these manuscripts, but not the more ancient, contain also that compilation called Regiam Majestatem, which has been the subject of so much critical and antiquarian controversy. The authority of this latter compilation, however, does not concern our present subject; and it may be mentioned, that the question as to the authenticity of the Leges Burgorum, as a collection of Scottish laws or customs, is altogether independent of that regarding the authority of Regiam Majestatem.

The precise dates of those manuscripts are unknown; but the most ancient is thought to be as old as about the middle of the thirteenth century, and several of them appear to be of different dates in the course of the fifteenth century 1.

1 The most ancient is now admitted to be that which was long preserved in the library at Berne in Switzerland, having been purchased in England

It cannot now be determined from what precise sources Skene published that series of the Leges Burgorum, which makes a part of the collection of ancient laws, published by him, and now usually known by the general title of Regiam Majestatem1. This series contains a greater number of borough laws than any of the more ancient manuscripts 2; but, in so far as some of these manuscripts go, it corresponds with them, although not with perfect accuracy.

2

These borough laws have sometimes been considered as the enactments of David I.3; but there can be no doubt, that, in so far as respects the whole series of these laws, as published by Skene, this view is incorrect 1, and there is, perhaps, in the time of Cromwell, and which has since, with the utmost liberality, been gratuitously transferred to this country. It contains a copy of the English compilation of Glanville in the reign of Henry II., and various other English collections. It then contains a collection of Leges Scotia,' corresponding to a considerable extent with certain of the laws contained in Regiam Majestatem; but it does not contain this latter compilation. It comprehends, lastly, a series of borough laws, extending to fifty-four; but there can be no doubt that it once contained a greater number, as some leaves are awanting. See a fuller account of this manuscript in Chalmer's Caledonia i, p. 729. Mr Thomson, by whose kindness I was favoured with a view of this curious and instructive manuscript, conjectures, from internal evidence, that it was written in the reign of Henry III. The manuscript, regarded by Mr Thomson as claiming the next place in point of antiquity, is one which has been very recently brought into notice, or discovered, in the town of Ayr. It contains the Statuta Gildæ, and a series of about 105 leges burgorum. It does not contain Regiam Majestatem. The manuscript presented to the Advocates' Library by the Earl of Cromarty contains a series of 116 of the borough laws, but they end abruptly. See a fuller account of this manuscript in Lord Hailes examination of the arguments for the authenticity of Regiam Majestatem, p. 4. et seq. It is probably not of a much older date than the middle of the fifteenth century. Many other manuscripts of that century exist, containing the Leges Burgorum. Skene's published collection contains 143 borough laws.

1 See his Introductory Address to the reader.

2 See note, supra, p. 450,

3 Erskine, book i. tit. i. sect. 36. See also Wight, p. 39.

* It has been already stated, that the whole of this series is not contained in the more ancient manuscripts; and some of them, as c. 135, themselves bear a much more recent date.

[ocr errors]

6

[ocr errors]

no sufficient authority for such a conclusion, even with respect to the whole series in the more ancient manuscripts. The usual title of them in the older manuscripts is, Leges et Consuetudines quatuor Burgorum, Edinburgh, Rockes'burgh, Berwic, Strivelin, constitute per dominum David, regem Scotia','-a title which, although ambiguous, may mean that they were the enactments of David, and were observed or enforced in the Court of the Four Boroughs, which was, at an early period, constituted by delegates from these four towns. But, perhaps, little faith is to be given to any such titles, as they may be merely the production of persons contemporary with the manuscripts. That some particular laws of this collection, however, were the enactments of that monarch, who, we know, did enact laws, or, at least, contain the substance of some of his statutes, is very probable. Thus, a charter of William the Lyon to the borough of Inverness, makes mention of one or two borough laws enacted by his grandfather David, and, at least, one of these enactments, or a law in substance the same, can now be found in the Leges Burgorum 3.

[ocr errors]

1 This is the title of the Leges Burgorum in the Bern manuscript, Caledonia, i. p. 73. That of the Cromarty manuscript is similar.

2 See Hailes on Regiam Majestatem, p. 11, and what follows in the

text.

3 William, in his charter, commands' ut nullus infra balliam de Inverness faciat extra burgum meum, pannum tinctum vel tonsum contra 'assisam Davidis et meam.' The 22d chapter of the Leges Burgorum is in these terms: Nullus nisi burgensis potest emere lanam ad tingendum nec facere pannum; nec pannum secare nec in burgo nec extra burgum; secus est si habeat lanam de propriis ovibus.' The charter also has this prohibition, Prohibeo etiam firmiter, nequis emat vel vendat ⚫ extra burgum meum, aliquod quod sit contra assisam regis Davidis avi mei, et meam.' It is possible that some such law as the following may be here alluded to: Nullus mercator extraneus vel alienus potest emere 'lanam aut coria aut alia mercimonia seu mercantias, extra burgum nec 'infra, nisi emerit a burgense.' Leg. Burg., c. 18. See also stat. Gul. c. 37. This charter certainly shews that David I. did enact borough laws; and reference may also be made to a passage, inserted in Fordun, lib. v.

[ocr errors]

But whether a considerable portion of the borough laws, which we now have, be truly the enactments of David I. or not, there is no doubt that there existed, at a very ancient period, and, in all probability, as early as the twelfth century, certain laws peculiarly framed by some authority or other for the regulation of borough polity; and we have every reason to believe, that the earlier part of the collection we now have consists of those ancient laws. Indeed, if the oldest manuscript we now possess, containing this collection, is of as early a date as is supposed by those best qualified to judge of such matters, it becomes certain that a large proportion of our present collection is of at least as ancient a date as the thirteenth century.

Arguments may also be drawn, from internal evidence, both in favour of the antiquity of many of these laws, and also in proof that they really were, at one period, acted on in the boroughs of Scotland. Probably the most remarkable evidence of this nature respects those laws regulating the sale of heritable property within borough.

c. 48, and attributed to Aldred or Baldred, a contemporary of David, in which a particular monastery is said to have been founded by David, ' ut patet in prologo ejus super statutis burgorum.' Lord Hailes, after expressing his doubts as to the authenticity of Regiam Majestatem, proceeds thus: There is less doubt, that most of the statutes in the collection 'called L. L. Burgorum, were enacted, or at least enforced, during the ' reign of David I.' Annals, vol. i. p. 104. ed. 1819.

1 In a charter of William the Lyon to Glasgow, mention is made of the 'assisa burgorum meorum,' in evident allusion, not to a particular law, but to a code. See the Charter, Gibson's History of Glasgow, p. 301. In the list of articles, which, in the year 1292, in the time of Edward I, were transferred from Edinburgh Castle to Roxburgh Castle, and delivered to Alexander Balliol, Camer. Scotia, for John Balliol, king of Scots, one item was as follows: In uno sacculo continentur 46 rotuli magni et parvi 'quorum quidam sunt de debitis, que debebantur domino regi, et duo de ⚫ legibus et assisis regni Scotiæ, et de legibus et consuetudinibus burgorum Sco* tia, et de quibusdam statutis editis per reges Scotia.' Robertson's Index, Introduction, p. xvi.

2 See note, supra, p. 450.

« EelmineJätka »