and under this pretext, and under that of confirming ancient usage, the right of burgessship was either limited to a select and selfelecting body, or was extended-and this was quite as mischievous -to non-residents, who were admitted by the governing bodies of the boroughs to the freedom of the town. At the same time-in the reign of Queen Elizabeth—the judges by their decision in the celebrated Corporations case with respect to the validity of electors and as to the binding effect of bye-laws made by select bodies in the corporations, laid the foundation for further and, as the result proved, almost indefinite encroachment upon the rights of the burgesses. Stating the matter broadly, it may be said that the effect of these innovations was to deprive the municipalities of their character of local institutions, and to subject them in their character of corporations-the creatures of the law-to the manipulation of judges who were, at this period and during the reigns of the Stuarts, bitterly hostile to popular rights, and equally bent upon extending in every way the influence of the crown. It is true that in the reign of James I. an effort was made to check a process by which the right of burgessship, and consequently the right to the franchise, was being gradually involved in inextricable confusion. The famous election committee, presided over by Serjeant Glanville, decided "that of common right the burgesses were the inhabitant householders, resident, paying scot and lot ;" but this decision was lost sight of, or, at any rate, it was never acted upon in the revolutionary times which followed; and, after the Restoration, during the reigns of Charles II. and James II., the process of remodelling the corporations was resumed and prosecuted with augmented vigour. In the words of the learned writers already quoted (and who are entitled to the merit of being the first to place the history of English municipal incorporations on a sound basis) "The interference in the reigns of Elizabeth and James I. by charters of the crown-the decisions of the courts, and the acquiescence of the people— had merged all the borough privileges and jurisdictions in the general notion of corporations; and as by these means all their rights were brought under the influence and control of the Crown, the subsequent attack upon them was made comparatively easy. On the Restoration the statute passed for the correction of the corporations afforded ready means for that attack, and a pretext for every species of usurpation. Extensive use was made of the opportunity; the old members and officers of the corporations were displaced; ministers of the crown, officers of state, and non-residents were substituted; and from the proceedings upon the statute it is obvious that no corporation had any chance of continuing its existence but by a submissive compliance with the wishes of the king. * After the success of the * * London quo warranto, the king sent his officers into all parts of the kingdom to terrify the corporations by the threats of similar legal proceedings to give up their charters. The greater portion of them voluntarily surrendered them through the agency of the select bodies, on the promise of having new grants from the crown; against those who were refractory proceedings were instituted. So that at this time the borough rights, which by general misconception and practice had been assumed to be identified with the corporations, were by the acts of the corporations and the surrender or seizure of the corporations submitted entirely to the mercy of the crown." There is no doubt that his dealings with the corporations contributed in no slight degree to the downfall of James II. But, although William III. did not imitate his predecessors, he did nothing to correct the abuses which had grown up under them. Indeed, during his reign and those of his successors, much was done to perpetuate and to extend those abuses-not, indeed, by the king, whose interference with corporate rights and privileges ceased with the Revolution of 1688, but by the House of Commons and the courts of law. Again quoting the before-mentioned authority, we find "The first (Parliament) in the reign of William III. passed the Act compelling the sheriffs to make the return from the elections according to the rights which had last been determined by the House of Commons, by which means the varying and anomalous usages of the different boroughs and the contradictory decisions of committees were sanctioned and confirmed. The House of Commons also-by its resolution-supported the former decisions, however irreconcilable with the charters or the principles of our institutions; and in some instances under the general name of 'burgesses,' introduced new varieties, according to the agreement of parties or the absurd usages of places that were brought before them. The courts of law relied upon the few early cases to which we have referred, and the extra-judicial opinions in the reigns of Elizabeth and James; and they fell into the same course which the House of Commons and the legislature had taken, adopting the same rules, by which they avoided a discrepancy which might have existed injurious to the character of both, as well as detrimental to the people. The courts, therefore, upheld the same principles, supported usage, maintained the select bodies, sanctioned the nonresidents, confirmed numerous bye-laws not in accordance with the charters or with each other, but giving a different constitution to every different borough, and as the greatest and worst innovation of all, gave the stamp of judicial authority to the doctrine of the arbitrary admission of burgesses by the corporations, a principle which had not before been expressly sanctioned by legal decisions. * * * During the reigns of Queen Anne, George I., II., III., and IV., the abuses to which we have referred were fully maintained. Select bodies, common councils, their bye-laws, and non-residents were supported. Freemen were substituted for 'burgesses,' and the latter name was applied to burgagetenants, freeholders, pot-wallers, and inhabitants without any other qualification. The court-leet was neglected, its proceedings disregarded or misapplied. Instead of them, courts baron were brought into a prominent situation in the municipal government of boroughs, for which they were never intended. Trade, and the companies and liveries connected with it, particularly in London, were more interwoven with the rights of burgessship than the original constitution of boroughs would justify; and the unrestrained admission of freemen as burgesses, which was declared to be lawful, laid all the municipal privileges and jurisdiction at the feet of those of whatever party who happen to possess the influence -necessary to secure the admission of their friends. Hence in some places a sufficient number of non-resident honorary freemen were admitted to overawe or neutralise the votes of the real burgesses; making in this manner the important functions of the separate exclusive jurisdictions of boroughs not the means of local government, as they were intended to be, but the tools of party violence and private intrigue." The general result of these innovations-for so they may be justly described-was that the municipal corporations were, for the most part, in the hands of narrow and self-elected cliques, who administered local affairs for their own advantage, rather than for that of the borough; that the inhabitants were practically deprived of all power of local self-government, and were ruled by those whom they had not chosen, and in whom they had no confidence; that the corporate funds were wasted; that the interests and the improvements of towns were not cared for; that the local courts were too often corrupted by party influence, and failed to render impartial justice; and that municipal institutions, instead of strengthening and supporting the political framework of the country, were a source of weakness and a fertile cause of discontent. Such was the condition of the English municipalities until the year 1835, when Parliament restored to the inhabitants of the boroughs those rights which their remote ancestors had enjoyed, but of which they had been deprived by a long series of usurpations. PART III. THE ACTS OF PARLIAMENT RELATING TO THE ENGLISH MUNICIPAL CORPORATIONS, FROM 1835 TO 1878 INCLUSIVE, WITH AN OUTLINE OF THEIR GENERAL PURPORT. THE passing of the Parliamentary Reform Bill of 1832 may be said. to have foreshadowed the necessary change in the municipal institutions of the country which shortly followed. In many instances its provisions affected the very existence of the corporations whose municipal privileges had been almost solely exercised for the furtherance of political objects; and there can be little doubt that one. the opinion which generally prevailed, as to municipal corporations having provided the most convenient machinery for the wide-spread corruption appertaining to the parliamentary franchise, was a just In compliance with an address from the House of Commons, a Royal Commission was issued, on the 18th day of July, 1833, directing a searching inquiry to be made "as to the existing state of the Municipal Corporations in England and Wales, and to collect information respecting the defects in their constitution." The Report of the Commissioners, signed by sixteen out of the nineteen originally appointed (one having died in the course of the inquiry, and two failing to concur in all the statements submitted), was presented to Parliament at the commencement of the Session of 1835. On the 9th of September, in the same year, the Royal Assent was given to the Bill now so well known as the Act 5 and 6 William IV., cap. 76. It did not apply, as is often supposed, to the whole of the corporations. The total number of places where an inquiry was instituted was 285; but, of these, 39 possessed corporations with few municipal functions worthy of the name. Of the 246 places believed to be in the possession of, or exercising, municipal powers, 178 were set out in the schedules defining the application of the Act; the remaining 68 (including the city of London) were not brought within its scope-London because it was reserved for future legislation, and the others because they were inconsiderable in extent and population. These particular boroughs still continue to be governed by their charters or prescriptive usages (except where incorporation has taken place under the Act,* or the special privileges comprised in their charters have been allowed to lapse), and each may therefore be said to be a law in itself. The Act of 1835 swept away at a stroke all previous charters, usages, and rights inconsistent with itself, and placed the constitution and the powers of the municipal corporations named in its schedules upon a simple, uniform, and popular basis. There had previously been great absence of uniformity with reference to the naming of the corporations; but the Act provided "That after the first election of councillors under this Act in any borough, the body or reputed body corporate named in the said schedule in connection with such borough shall take and bear the names of the mayor, aldermen, and burgesses of such borough, and by that name shall have perpetual succession, and shall be capable by the council hereinafter mentioned [the town * Five of these boroughs-Aberavon, Conway, Hartlepool, Hedon, and Yeovilhave been placed under the Act since 1835, council] to do and suffer all acts which now lawfully they and their successors respectively may do and suffer by any name or title of incorporation; and the mayor of each of the said boroughs shall be capable in law to do and suffer all acts which the chief officer of such borough may now lawfully do and suffer so far as the same respectively are not altered or annulled by the provisions of this Act.” The courts of law have fully settled that, although the name of the corporation be changed, as in many cases it is by the operation of this section, yet that the effect of the statute is not to create a new corporation in any case, but merely to continue the old corporation, so that all the rights, claims, franchises, privileges, prescriptions, and customs, as well as all the debts, liabilities, and duties of the corporation as it stood on the day the statute passed, remain and inhere in the remodelled corporation so far as they are not contrary to or inconsistent with the provisions of the Act. A careful consideration of the 6th, 137th, and 142nd sections of the Act seems, however, to render it perfectly clear that the substitution of the word "citizens" for "burgesses" in corporations of cities is both legal and proper. This subject was recently suggested for discussion (and determination by an important civic body) in an interesting pamphlet,* which quotes judicial opinions in favour of the term "citizens," and not "burgesses," being employed in the corporate style of cities. Inclusive of the principal Acts, the number of legislative measures, directly applicable to municipal corporations, which were entered on the Statute roll between the years 1835 and 1878, is 31. They are as follows: Session, Chapter and Year. Short Title. 5 & 6 Will. 4, c. 76 (1835). 6 & 7 Will. 4, c. 103 (1836). 6 & 7 Will. 4, c. 104 (1836). 6 & 7 Will. 4, c. 105 (1836). 7 Will. 4, & 1 Vict. c. 78 (1837). 7 Will. 4, & 1 Vict. c. 81 (1837). 1 & 2 Vict. c. 31 (1838). 2 & 3 Vict. c. 27 (1839). 2 & 3 Vict. c. 28 (1839). Title of Act. An Act to provide for the regulation of muni- An Act for the better administration of the An Act for the better administration of justice An Act to amend an Act for the regulation of An Act to provide for the levying of rates in An Act for facilitating the sale of church An Act for regulating the proceedings in the An Act for the more equally assessing and The Municipal Corporations The Municipal Corporations The Municipal Corporations The Municipal Corporations (Benefices) Act, 1838. The Municipal Corporations (Borough Courts) Act, 1839. The Municipal Corporations (Watch Rate) Act, 1839. *"On the distinctive style and title of the Corporation of the City of Exeter."B. C. Gidley, M.A., Town Clerk. |