Mary Bateson and William Charles Smith

“ The close corporations, though their right to choose a member of parliament might be doubtful, had the sole right to admit new burgesses, and in order to determine parliamentary elections they enfranchised non-residents. Where conflicts arose over the choice of a member, and two selections were made, the matter came before the House of Commons. On various occasions the House decided in favour of the popularly elected candidate against the nominee of the town council, on the general principle that neither the royal charter nor a by-law could curtail this particular franchise. ”

“ The tribal burh was protected by an earthen wall, and a general obligation to build and maintain burhs at the royal command was enforced by Anglo-Saxon law. Offences in disturbance of the peace of the burh were punished by higher fines than breaches of the peace of the “ham” or ordinary dwelling. The burh was the home of the king as well as the asylum of the tribe, and there is reason to think that the boundary of the borough was annually sanctified by a religious ceremony, and hence the long retention of a processional perambulation. ”

“ The want of a sound philosophical principle in the laws which were intended to regulate the actions of organized groups of men made it easy for the crown judges to find flaws in the legality of the actions of the boroughs, and also made it possible for the Londoners to argue that no execution could be taken against the mayor, commonalty and citizens, a “body politic invisible” ”

“ Certain it is that the communities in the 12th century became alive to the possibilities of their new position, that trade received a new impulse, and the vague constitutional powers of the borough court acquired a new need for definition. At first the selection of officers who were to treat with the exchequer and to keep the royal pleas was almost certainly restricted to a few rich persons who could find the necessary securities. ”

“ The great boroughs were honeycombed with sokes, or areas of seignorial jurisdiction, within which the royal reeve’s authority was greatly restricted while that of the lord’s reeve took precedence. Even the haws, being “burhs” or strongholds within a stronghold, enjoyed a local “peace” which protected from official intrusion. Besides heterogeneity of tenure and jurisdiction in the borough, there was also heterogeneity of status; there were burh-thegns and cnihts, mercatores, burgesses of various kinds, the three groups representing perhaps military, commercial and agricultural elements. ”

“ The new freeman in return for his privileges was bound to share with the other burgesses all the burdens of taxation, control, &c., which fell upon burgesses. Personal service was not always necessary, and in some towns there were many non-resident burgesses. When in later times admission to this freedom came to be used as means to secure the parliamentary franchise, the freedom of the borough was freely sold and given. The elections in which the commons of the boroughs first took interest were those of the borough magistrates. ”

“ 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 merchandise was confined to freemen, burgesses and their factors. Ships were directed to trade to the king’s free burghs, there to pay the customs, and to receive their cocquets or custom-house seals ”

“ Elsewhere the several groups of traders and artisans made of their gilds all-powerful agencies for organizing joint action among classes of commons united by a trade interest, and the history of the towns becomes the history of the struggle between the gilds which captured control of the council and the gilds which were excluded therefrom. Many municipal revolutions took place, and a large number of constitutional experiments were tried all over the country from the 13th century onward. ”

“ At least from the 10th century the burh had a “moot” or court, the relation of which to the other courts is matter of speculation. A law of Edgar, about 960, required that it should meet three times a year, these being in all likelihood assemblies at which attendance was compulsory on all tenants of the burghal district, when pleas concerning life and liberty and land were held, and men were compelled to find pledges answerable for their good conduct. At these great meetings the borough reeve (gerefa) presided, declaring the law and guiding the judgments given by the suitors of the court. ”

“ 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. ”

“ The corporations were placed under a council and in a number of cases popular control was excluded altogether, the whole system being made one of co-optation. The absence of popular protest may be ascribed in part to the fact that the old popular control had been more nominal than real, and the new charter gave as a rule two councils of considerable size. ”

“ This area was as a rule eventually the area of borough jurisdiction. There is some evidence pointing to the fact that the restriction of the borough authority to this area is not ancient, but due to the Norman settlement. The wide districts over which the boroughs had had authority were placed under the control of the Norman castle which was itself built by means of the old English levy of “burh-work.” The borough court was allowed to continue its work only within its own immediate territory, and, to prevent conflict, the castle was placed outside the borough. ”

“ The strength of the garrison made the neighbourhood of the castle a place of danger to men unprotected by legal privilege; and in order to invite to its neighbourhood desirable settlers, legal privileges similar to those enjoyed in Norman or English boroughs were guaranteed to those who would build on the plots which were offered to colonists. ”

“ The many special authorities created under act of parliament led to much confusion, conflict and overlapping, and increased the need for a general reform. The reform of the boroughs was treated as part of the question of parliamentary reform. In 1832 the exclusive privileges of the corporations in parliamentary elections having been abolished and male occupiers enfranchised, the question of the municipal franchise was next dealt with. In 1833 a commission inquired into the administration of the municipal corporations. ”

“ In permitting the boroughs to answer through their own officers for his dues, the king handed over to the boroughs the farming of his rents and a large number of rights which would eventually prove to be sources of great profit. ”

“ 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 Scottish burghs in the second parliament of Three Nations (1654) . ”