burgess could be summoned by a king's officer unless accompanied by an officer of the burgh; and no person residing in burgh, who was attached for any cause by a king's bailie, could be removed beyond the liberty of the burgh, either to the castle or to any other prison, unless he failed to find surety. Even in a question with the castellan or keeper of the king's castle, the rights of the burgh and of the burgesses were sharply defined. If the castellan aggrieved a burgess, the burgess had to seek redress according to law outside the gates of the castle. But if a burgess did wrong to the castellan, the castellan had to seek redress in the burgh court. Again, the castellan could not require a burgess to lend him goods of greater value than forty pence, or for a longer period than forty days. The castellan was, moreover, prohibited from entering the premises of a burgess and slaying swine or poultry. When he needed these, he had to go to the burgess and ask to purchase them for behoof of the king. But if the burgess refused to sell them, and the castellan afterwards found them on the street, he might take possession of them, but was bound to pay a price fixed by the neighbours. Even this privilege, however, the castellan could only exercise three times a year, viz., before Yule, Easter, and Whitsunday.

The burgh laws also contained important modifications of the general law and practice in regard to the wager of battle. Outside of the burgh, the wager of battle was a recognised institution, to which even the Church lent its most solemn sanction; and for the burghal code to have prohibited it altogether would have been, as Dr. Burton observes, a radical measure which might indeed have compromised the rank taken by the burgesses in the body politic. But the burgesses of these early times recognised the truth that the spirit of peace is essential to commercial and manufacturing enterprise, and so the laws and customs of the burghs were expressly designed to foster that spirit. If two quarrelsome burgesses resident in the same town chose to settle their quarrels by an appeal to arms, there seems to have been nothing to prevent them. But a resident burgess was not bound to fight a rustic or non-resi

dent burgess, nor an "uplands man," i.e., a man resident in the country, unless the challenge of the uplands man was of treason, or involved a question of freedom. He could, if he chose, defend himself by law in the court of the burgh. Under any circumstances, when a burgess was to fight an uplands man, he had to go out of the burgh to do so. The other provisions of the burghal code on this subject were all such as to favour the king's burgess. He might have battle of the burgesses of an abbot or friar, i.e., of a church burgh, or of an earl or baron, i.e., of a burgh of regality or barony, but they could not require him to fight. And, again, when a burgess was challenged to battle, and was too old to fight, he might plead his age, and purge himself of that whereof he was accused by the oaths of twelve men such as himself.

Space will not permit us to enter upon the old burgh laws of succession in heritage and movables. It must suffice here to say that, so early as the twelfth century, burgesses were vested in the absolute property of their burrowages; the succession of their heirs was anxiously secured on the principle of primogeniture; and while alienation to strangers was discouraged, it was competent in cases of necessity. In fact, the provisions of the Laws of the Four Burghs are carefully framed, highly artificial specimens of jurisprudence, and embody principles many of which have survived till the present day.

Scarcely, if at all, inferior in importance to the monopoly of trade and commerce enjoyed by the burgesses of king's burghs, and to the right which they possessed of selling and transmitting their property, was the right which they also had, in the earliest period of record, to elect their own magistrates and the officers of the burgh to whom was entrusted the administration of the burgh laws in the burgh courts. Without this privilege, indeed, and that of local government of which the privilege formed part, it is difficult to see how they could have made their other rights and privileges effectively operative.

On this subject the Laws of the Four Burghs enact that, at at the first moot or public assembly after Michaelmas, the magistrates, designated prepositi,-literally persons put forward -shall be chosen through the council of the good men of the

On their election the

town, who are leal and of good fame. magistrates were required to swear fealty to the king and the men of the town, and to keep the customs of the town, and not to execute justice on any man or woman for wrath or hatred, fear or favour of any one, but only through ordinance counsel and doom of the good men of the town. They were also required to swear that neither for fear nor love, nor for hatred, nor for relationship, nor for pecuniary loss, should they fail to do justice to all men. Who were the good men of the town, leal and of good fame, in whom the election of magistrates was thus vested, has been made the subject of controversy. But there seems to be little room for doubt that they were the permanent free inhabitants of the burgh -the holders of the burrowages, duly admitted, sworn, and enrolled as burgesses, who performed the duties and enjoyed the privileges incident to that relation. The Statutes of the Guild ordain that the mayor and prepositi shall be chosen at the sight and by the consideration of the whole community, and the whole community thus referred to appears to be synonymous with the good men, leal and of good fame, mentioned in the Burgh Laws. The oldest record of an election in Scotland is that of Aberdeen, at Michaelmas, 1398. It may be thus translated,—' On which day, William of Chamber, the father, with the consent and assent of the whole community of the said burgh, is elected to the office of alderman, and Robert the son of David, Simon of Benyer, John Scherar, and Master William Dicson, are elected to the office of bailies.' The election of the alderman, bailies, and sergeants or burgh officers for the following year, is also made in the same terms, 'with the consent and assent of the whole community of the burgh.'

No distinct reference occurs in the Laws of the Four Burghs to the body now known as the Town Council, but one clause enacts that, in every burgh of the realm, the 'superior'— which in the old Scotch translation is rendered mayor or alderman,'-shall cause twelve of the more sufficient and discreet burgesses of the burgh, to swear by their great oath to keep and maintain to the utmost of their power all the laws and

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just customs of the burgh. This body of twelve was probably the body which originally received and afterwards retained the name of the duodene or dusane, long after the number of its members exceeded the limit of twelve. In the oldest records of many of the Scotch burghs the dozen' appears to have been used to express what is now meant by the term 'the town council.' A more distinct reference to a body which may correspond with the council, is contained in the Statutes of the Guild, enacted originally for Berwick, but subsequently accepted by the other burghs of Scotland. In that document the following provision occurs: We ordain, moreover, by common consent, that the community of Berwick shall be governed by twenty-four good men, of the better, more discreet, and more trustworthy of that burgh, thereto chosen, together with the mayor and four bailies. And whensoever the said twenty-four men are summoned to treat concerning the common business, he who comes not at the summons before night, shall give two shillings to the guild.' These twentyfour men had to be elected along with the mayor and four bailies, and it can scarcely be doubted by the same body of electors. In conformity with the principle of popular election thus recognised, the election of twenty persons as common councillors in Aberdeen in 1399, was made on the same day with that of the alderman and bailies, and apparently also with the consent and assent of the entire community.

There is thus every reason to believe that at a very early period, if not, indeed, at the earliest period of the municipal history of our oldest burghs, they were governed by magistrates or prepositi, consisting of a chief magistrate, known first as the mayor or alderman and afterwards as the provost, and the bailies, and by a selected body of burgesses called the duodene, dusane, or council. The magistrates, and probably also the dusane or council, were elected annually, at or about Michael

mas.

The Burgh Laws made express provision for the appointment of liners, who had to be chosen by the prepositus, alderman, or provost, at the sight and with the counsel of the community. They were required to be at least four in num

ber, and wise and discreet men, so that no complaint might come to the Chamberlain for defect of lining. On their election the liners had to swear that they would line faithfully, according to the right and old marches within burgh. These liners are the ancestors of the present Dean of Guild Court, which, however, is the creation of a much later age. Previous to the institution of that court, the magistrates of the burgh exercised the whole jurisdiction which has since been devolved upon it, and, in point of fact, the magistrates of burghs in which there is no Dean of Guild, can still exercise their original jurisdiction in this respect.

Elections of another class of officials are also recorded in the oldest burgh records, along with those of the magistrates and officers of the burgh, and of the liners. These were apprisers of flesh and ale tasters. The function of these persons is indicated by the name of their office, and is sufficiently explained by the terms of the oath which they were obliged to take. The apprisers of flesh had to swear faithfully to apprise flesh according to the price at which beasts were sold in the country. The ale tasters had to swear faithfully to taste the ale, and lawfully to apprise the same according to the price of malt. In some burghs apprisers of wine were elected, whose business it was to see that the quality and price of the wine sold in the burgh were according to the regulations in force at the time.

Burgesses also possessed a variety of other privileges. Under the feudal law, a vassal was liable to a number of casualties of superiority, such as merchet and herezeld, which were often most burdensome. From all these the burgess was exempted. He could not even be poinded for debt without the consent of his prepositus-provost or bailie. If he claimed a debt from one resident out of the burgh, by which was probably meant a non-resident burgess, and the non-resident burgess denied the claim, be had to answer in the court of the burgh. If a debtor disputed the claim of a burgess, the burgess might insist on the debtor's oath, just as in the present day. If an uplands' man accused a burgess of theft, the accused might free himself by his own oath and the oaths of