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Saturday 30 May 2015

Leges Quattuor Burgorum (the Law of the Four Burghs) and the Statutae Gildae (Guild Laws)

From Captain James Evans, Chairman of the Guild of Freemen of Berwick-upon-Tweed:
In early times the Berwick Guild was controlled by two sets of Laws, the Leges Quattuor Burgorum (the Law of the Four Burghs) and the Statutae Gildae (Guild Laws). The first set was developed by the Court of Four Burghs and the second within the Berwick Guild. Both were written in Latin and were adopted by the Scots Parliament and therefore received acceptance in Scots law. The Scottish language was not used in formal documents until the middle of the fifteenth century.

King David I, while regent for his brother in southern Scotland, referred to Berwick and Roxburgh as his Royal Burghs. He appointed a Sheriff for Berwick (Vicecomes de Berwic). By the end of his reign there were fifteen towns in Scotland acknowledged as Royal Burghs.

The Leges Quattuor Burgorum were formalised from the early part of the twelfth century. There is little doubt that many of these laws were individually of very ancient origin as the customs and practices must have been in use long before they were formalized.

They were based on experience in the early Burghs and were first adopted by the four southern Royal Burghs of Berwick (Berewic), Roxburgh (Rokisburgh), Edinburgh and Stirling (Strivelin). Early in the reign of King David I (1124-1153) they were sanctioned by the King's Court and became the law for all the Royal Burghs of Scotland. There were 119 laws as quoted by the Burgh Record Society some of which may have been later additions to these laws. These laws would appear to be the best documented and most ancient Burgh laws in Europe.

'Thir ar the lawys of the burghis of Scotland mayd and ordanyt be the Kyng David'. So begins the earliest reliable translation of the Law of the Four Burghs.

The first law states that each burgess shall give the king the rent for his rood of land and the second that any new burgess shall swear fealty to the king, bailies and the community of that burgh of which he has been made a burgess. It goes on to lay down rules for conduct for dealing with those living outside the burgh. Only a king's burgess may have an oven on his own land. It lays down laws for inheritance, taxation, keeping of the law, debts and borrowing.

Berwick was the leading town of the Curia Quattuor Burgorum, the Court of the Four Burghs. The original four Royal Burghs were Berwick, Roxburgh, Stirling and Edinburgh. There was also a Hanse of Northern Burghs. The Court of the Four Burghs developed their own laws for dealing with each other which became the Laws of the Four Burghs.

We do not know the exact powers of this Court, but while it started as being judicial in practice it also became legislative. We can determine some of its functions from the few remaining records. The Court decided matters of principle of the government of burghs and the rights and privileges of burgesses. One existing Air refers to the principle of movable succession. It is probable that it also determined and assessed the taxes which burghs paid to the Crown. We know that they joined in the aid of public contributions from a very early period and regulated certain duties which were to be carried out. In the proceedings of one Air of uncertain age are the regulations covering the tasting of ale.

This same Air refers to an enquiry regarding eighty marks of silver granted by the King to clean the streets of Berwick, which was not apparently carried out.

The Court of the Four Burghs appears to have sat as an appeal court on the judgments of the Court of the Great Chamberlain regarding Burgh matters. Appeals against the decisions of the Provost and Bailies could be made to the Court of Four Burghs which met once a year in Haddington. It was summoned by and presided over by the Chamberlain of Scotland. The court had the power to try and decide appeals from all burghs in Scotland. The four original Royal Burghs provided three or four Commissioners each to sit with the Chamberlain and assist him in considering decisions for individual burghs. Most of these deliberations are now lost and it is uncertain how far they were able to enforce their decisions. However there are a few of these "Chamberlain Air's" which remain in Scottish records.

Statutae Gildae
Tradesmen had formed themselves into Guilds or societies long before the reign of King David I.
The earliest known Trade Guilds in Berwick were the Baxters (Bakers), Fleshers (Butchers) and Salmon Fishers.

Berwick became a key market town and port with wool and grain from the Tweed Valley being exported, along with hides, felts, skins and livestock. The main imports were fine cloths, alum, wood and teasels. Berwick was also a key manufacturing town with cloth as its main product. There was a Royal Mint created in 1135 at Berwick Castle. As trade grew so did the importance of the merchants. By early in the thirteenth century many were rich by the standards of the day. They retained their burgage plots within the town for trade and in order to remain qualified as burgesses, but also built new houses outside the town. One of the earliest record of a business is that of Thomas of Coldingham, a wool merchant.

As trade grew the merchants were attracted from afield.

It is probable that a majority of the burgesses in the Merchants Guild had come to Berwick within the previous generation. The family of the first Mayor came from Norfolk and there were Flemish, Burgundian and Cologne trade houses in the burgh. The Merchants Guild was by far the most influential in the burgh.  A considerable part of the income of the king came from Customs duties in Berwick and in about 1235 the Merchant Guild appears to have made a substantial loan to the crown. It was at this time that Berwick was given the privilege of electing a Mayor from within Berwick burgesses. Up to this time the position of Provost, the leading citizen, had been a Royal appointment.

The inhabitants of the town were made up of three groups. The most important were the Burgesses. A burgess was required to own a 'toft' or rood of land within the burgh. This was the first Law quoted in the Leges Burgorum. They were called Burgage plots the rent for which was paid separately and directly to the king. This practice continued until the reign of King Robert (the) Bruce when it was superseded by the payment of a Fue Ferme. 

By this a payment of a single fixed reddendo payment into the Exchequer gave the Guild the right to collect all Crown rents along with duties, mails and court fees within their own burgh. Within each of these burgages there was a whole community. The head was the owner of the plot, the Burgesses. He had his establishment at the front of the plot. Originally he would have lived there, but by the middle of the thirteenth century many had built houses out of the centre of the town in Bonnington and further afield. Besides his immediate family there would be his servants and the tradesmen working for him. Many of these would live in the back part of the burgage which would include workshops as well as living space and also had room for animals and for a garden. Wages as such were not normal and payment was generally in kind. The burgess was responsible for the well-being of every person within his own grouping.

The second group of people were tradesmen and retail salesmen. Some worked for a burgess and some were independent. They did not pay the burgess taxes nor did they have the duties and privileges of the burgess. Tradesmen would be members of a Trade Guild and therefore be freemen.

The stall holders paid market dues and could be freemen. Non-freemen were sometimes referred to as stallengers. It was possible for a tradesman or stallholder to purchase a burgage plot and become a burgess.

At the bottom of the social scale there were the poor, sick and disabled. Some of these lived within the burgess' extended family and the remainder were beggars relying upon charity from the hospitals or other religious orders. The finance for this charity came mainly from individual burgesses or from the Guilds.

It was possible and necessary that new people coming in from the countryside should be able to progress from servant to tradesman or stallenger. In most burghs including Berwick, a man who entered the town and stayed free for a year and a day was entitled to the privileges of the community, i.e. become a free man. It was also possible to progress to a burgess. This involved the ownership of a burgage plot and these became available due to death and occasionally insolvency of a burgess. In the later case there were special laws to ensure that the relatives of a burgess had every opportunity to take up the burgess plot.

A burgess had many responsibilities as well as privileges. He was taxed on the basis of his landowning as well as on goods sold. He was required to attend head Guild meetings and to take part in the governance of the town. Many tradesmen were freemen but did not want to take up this responsibility.
They sold their burgage plot to new merchants and therefore ceased to be burgesses. Burgesses and freemen together made up the commune and the first mayors are referred to as having been elected by the whole commune.

Literacy had first been encouraged by King Alfred and his successors as Saxon kings in England. Alfred had devoted a large part of his revenue to education. He brought teachers to England. "All the sons of freemen who have the means to undertake it should be set to learn English letters". Alfred ruled in Wessex, but his descendents ruled all England which at that time included Berwick and what is now Scotland as far north as the Pentland Hills.  This legacy of literacy was lost in rural and manor house with the Norman invasion, but remained as a necessity in the burghs.

The Leges Quattuor Burgorum was written in Latin by scribes who were clerics. However the Statutae Gildae was written by the scribes of the Guilds. The standard of literacy among burgesses was quite high. Burgesses were expected to be capable of reading their own balance sheets. There was some form of schooling.

The Statutae Gildae was originally drawn up as the rules for the Guild of Berwick. The existing law for Royal Burghs was the Law of the Four Burghs. This had been incorporated into Scots Law by Parliament. However the Merchant Guild in Berwick wished to alter the laws governing the Guild and to enforce the dominant position which they now held.
Representatives of the Guilds met together in 1248 to draw up rules for the future administration of the Guild. The extended rights of the new Charters and the change in Guild structure were reflected in these new laws, which were adopted in 1249. The reason for drawing up these new laws was quoted by the Mayor de Bernham and his coadjutors. "Up to this time a number of Guilds had existed with diver interests and not always working harmoniously one with the other. Now it was desired to amalgamate all these Guilds into one so that henceforth that no man presume to procure any other Guild within the burgh, but that all should go together with one assent."

The laws of 1249 brought all the Guilds together into one Merchant Guild. Although tradesmen were accepted as freemen or if they held the necessary property as burgesses, the new laws made the dominant position of the merchant burgesses very clear.  To quote from the laws "No butcher while he handles the axe can be a merchant or meddle with the staple trade of the town."

The laws of the Berwick Guild are shorter than the Laws of the Four Burghs. The Berwick records showed that thirty eight laws were made in 1248 and a further eight between 1281 and 1294. They were drawn up by a special meeting of the Ferynemen (Council) meeting in the Berfreyt (Town Hall). Documentary evidence suggests that some of the meetings were held in the hall of the Friars of the Holy Trinity and at St.Nicholas church.

Freemen were to have complete control of all commerce coming into the burgh. No non freeman could trade and no freeman was allowed to assist a non freeman in his trade. They also controlled the standard of workmanship and insisted that any poor workmanship was corrected in sight of one of the Ferynemen. The Guild also looked after the welfare of their own members.

Any freeman failing because of age, falling sick or in poverty was to be helped with the goods of the Guild. Similarly widows were assisted after the death of their husband and provision was made for unmarried daughters to allow her either to marry or enter a religious house. The method of bequeathing property was laid down.

The laws were particularly strict with regard to trade. This was only allowed to take place in the market place and within market hours. It was considered a serious offence to make sales outside the market. No married women could trade in wool and sheep could only be sheared between Whitsunday and Martinmas.

Herring bought directly from a boat had to be sold to a freeman at the same price at which it had been bought. All seafood had to be removed by sunset.

Those breaking the rules for trade were fined. This was often a tun of wine which was forfeit to the Guild. A buyer was protected and given compensation in case of false practice such as showing good apples at the front of a stall and sell poor ones from the rear.

The laws state that the government of the town was to be vested in the Mayor, four Bailies and twenty four feryne-men. The whole body was referred to as Aldermen although this name sometimes referred to the head of the Guild. The numbers on this council indicate the importance of Berwick as there is no record that any other town in Scotland had more than twelve on their council at this time. The Mayor and Bailies were to be chosen "Thruch the consoile of the gud men of the toune, the whilk aw to be lek and of gud fame". This would suggest that the electorate was to be restricted to the burgesses rather than the whole commune who had taken part in the original election of the Mayor. If there was any controversy or debate then they were to be chosen by the oath of the twenty four Ferynge-men.

The Mayor and Bailies swore fealty to the king and also to the burgesses and promised to uphold the customs of the town.

The meetings of the Guild were in secret and could not be disclosed under threat of dismissal on the third offence in which case the offender was disenfranchised and considered for ever an untrue man. Meetings were summoned by a bell and attendance was compulsory subject to a 12d (5p) fine for non attendance.

These were violent times and no man could carry a knife to a meeting subject to a fine of 1s (5p), nor could anyone quarrel before, during or after the Guild Meeting subject to a penalty of 3s 4d (16p). If the quarrel resulted in a blow being struck the fine was 100 marks and the striker had to compensate the victim at a rate to be determined by the Feryngemen. These fines indicate the trade base of the Guild.

The Guild laws covered the election of the Mayor, bailifs and Feryngemen. As there is no mention of any other office holders, it is presumed that these were still appointed by the king. These would include the Sheriff and Justiciar.

After Berwick was conquered by England the English kings in their charters confirmed most of the rights given by the Scottish kings and as confirmed in the charters of King Alexander III.

Thus Berwick charters and Guild were always unique in England. There was only one Merchant Guild. The tradesmen and retailers were members of this Guild, but the power of the Guild was firmly in the hands of the merchants. The burgage plots were split to increase the number of burgesses. Eventually the property connection was dropped.

The stallengers were frozen out of the Guild although it was not until the 1605 Charter that they were fully disenfranchised and they continued to have rights up to the end of the seventeenth century. However after the adoption of the Statutae Gildae the burgesses were effectively the Guild.

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