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THE ENGLISH MUNICIPAL CODE.
THE NATURE AND CONSTITUTION OF MUNICIPAL CORPORATIONS..
A CORPORATION is a franchise possessed by one or more individuals who subsist as a body politic under a special denomination, and are vested by the policy of the law with the capacity of perpetual succession, and of acting in several respects, however numerous the association may be, as a single individual. The object of the institution is to enable those constituting it to act by one united will, and to continue their joint powers and property in the same body, undisturbed by the change of members, and without the necessity of perpetual conveyances, as their corporate rights pass from one individual to another. All those composing a corporation, and their successors, are considered in law but as one person, capable under an artificial form of taking and conveying property, contracting debts and duties, and of enjoying a variety of civil and political rights. One of the peculiar properties of a corporation is the power of perpetual succession, for in the judgment of law it is capable of indefinite duration. The rights and privileges of the corporation do not determine or vary upon the death or change of any of the individual members: they continue as long as the corporation endures. It was chiefly for the purpose of clothing bodies of men in succession with the qualities and capacities of one single artificial and fictitious being that corporations were originally invented, and for the same convenient purpose they have been brought largely into use. Corporations, private as well as public, or municipal, were well known to the Roman law, and they existed from the earliest periods of the Roman republic. The powers, capacities, and incapacities of corporations under the English law, do, indeed, very much resemble those under the civil law; and it is evident that the principles of law applicable to corporations under the former were borrowed chiefly from the Romun law, and from the policy of the municipal corporations established in Britain and the other Roman colonies, after the countries had been conquered by the Roman arms. The first division of corporations is into aggregate or sole.
* From “ English Municipal Institutions—their Growth and Development," by J. R. Somers Vine, F.S.S.: Waterlow and Sons Limited, London Wall, E.C. (1879).
Corporations aggregate consist of many persons united together into one society, and are kept up by a perpetual succession of members, so as to continue for ever. Corporations sole consist of one person only and his successors, and are incorporated by law in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural person they could not have had. Another division of corporations, either sole or aggregate, is into ecclesiastical and lay; while lay corporations are again subdivided into civil and eleemosynary. The civil are such as are created for a variety of temporal purposes, and under this head are included municipal corporations. The eleemosynary sort are such as are constituted for the perpetual distribution of the free alms or bounty of the founder of them to such persons as he has directed.
Corporations by the civil law seem to have been created by the mere act and voluntary association of their members. But, in England the consent of the Crown is absolutely necessary to the creation of any corporation ; that consent, however, may be either expressly or impliedly given. The sovereign's implied consent is to be found in corporations which exist by force of the common law, to which former kings are supposed to have given their concurrence; common law being nothing else but custom arising from the tacit assent and usage of the whole community. Another method of implication, whereby the consent of the Crown is presumed, is as to all corporations by prescription, such as the city of London, and many others which have existed as corporations, time whereof the memory of man runneth not to the contrary, and therefore are looked upon in law to be well created. For, although the members thereof can show no legal charter of incorporation, yet in cases of such high antiquity the law presumes that there once was one, and that, by the variety of accidents which a length of time may produce, the charter is lost or destroyed. The methods by which the consent of the Crown is expressly given are either by Act of Parliament or charter.
When a corporation is created, a name must be given to it, and by which name alone it must sue and be sued, and do all legal acts. After a corporation is so formed and named, it acquires many powers, rights, capacities, and incapacities. As
(1) To have perpetual succession.
(2) To sue or to be sued, implead or be impleaded, grant or receive by its corporate name, and do all other acts as natural persona may.
(3) To purchase lands, and hold them for the benefit of themselves and their successors.
(4) To have a common seal.
(5) To make bye-laws or private statutes for the better government of the corporation, which are binding upon themselves, unless, contrary to the laws of the land, or inconsistent with their charter, or unreasonable, and then they are void.
THE HISTORY OF THE ENGLISH MUNICIPALITIES.*
MUNICIPAL CORPORATIOns did not exist in England until 1439; but although that is the date of the earliest known charter of incorporation, boroughs, the citizens of which exercised powers of local self-government, existed from the earliest periods of British history. There is no doubt that such municipalities may be traced back to the Roman occupation of Britain, and the organisation of these seems to have been, at least in part, adopted by the Anglo-Saxons. Although great obscurity surrounds the early constitution of the English municipalities, there are valid reasons for believing that the “freemen” or “burgesses at large” were the governing body. The Anglo-Saxon forms of local organisation were legitimate ramifications of the common-law rights of the free population. It is at all events certain that at that time, while the county districts or shires were under the jurisdiction of shire-reeves (whence sheriffs), the boroughs were under the rule of borough- or port-reeves. As the counties had their shire-gemotes or sheriffs' towns in which their local affairs were discussed and regulated, so the latter had their burgh-mote or courtleet of the borough. The one assembly was composed of the freeholders of the county, and the other of the freemen resident in the borough, and both were charged with essential duties to their immediate communities and responsible obligations to the witena-gemôt, or national council. The individuals composing these communal associations were men who had a stake-inconsiderable though it may frequently have been—in the country, or, in homely words, “had something to lose;" hence the irresistible impulses which in later times compelled despotic administrators, much against their will, to formally recognise the enjoyment of “peculiar privileges” which had thereto been exercised as “ undisputed rights.” It does not appear that the “ borough liberties” of the Anglo-Saxons depended for their origination upon the favour of the sovereign. They were the natural outgrowth of social necessities. The Municipal Commissioners (of 1833-5), in their report, adduced only two instances of grants of local charters by Saxon kings—that of Athelstan to Beverley and that of Edward the Confessor to the Cinque Ports-neither of which, from the alleged nature of their contents, can be accepted as satisfactory evidence of the creation of municipal franchises by monarchical condescension prior to the Norman era.
* This Historical Sketch is (with some few additions) taken from “The English Municipali. ties—their Growth and Development,” by J. R. Somers Vine, F.8.8.: Waterlow and Sons Limited, London Wall, E.C. (1879).
At the time of the Norman conquest the county sheriff was supplanted by the vice-comes, while the borough- or port-reeve gave place to the bailiff (or mayor), the new officers being appointed by the king instead of by the freeholders or resident freemen, as the case might be. With this exception, however, it would seem that William the Conqueror did not alter the local institutions of the country to the extent that is sometimes imagined. The two leading records which establish this position are the laws compiled by this sovereign and the Domesday Book In the former the same features are traceable as in the Sixon laws. The king's peace is to be preserved, the freemen are to be sworn to their allegiance, the payment of scot and lot (or local rates) is mentioned, the watch and ward in boroughs is enforced, the provisions of the old law for selling in the presence of witnesses are repeated, as well as the general system of giving pledges for good behaviour which was so remarkable a characteristic of the Saxon system. Distinct traces are also to be found of the law which subsequently assumed much greater prominence and contributed so materially to the rise and growth of towns, namely, that “all bondmen who remained without claim for a year and a day in any borough, &c., should be free." In Domesday Book boroughs and burgesses are frequently mentioned, and it is clear from the way in which this is done that the local government of the towns was separate from that of the counties, and that it was vested in the burgesses presided over by a bailiff. At a
later period the “ burgesses” were, in too many boroughs, a small select class, excluding the great mass of the inhabitants from the right of local government, and exercising the powers which they thus obtained for their own profit and advantage. But at this early period the test of municipal citizenship continued to be the same as it was in Saxon times, and, broadly speaking, was in fact very nearly the same as it is at present. An excellent authority* thus refers to burgessship as it existed in the tenth and eleventh centuries :
“There are entries in Domesday, in almost every county, which establish that burgessship did not depend upon tenure, because many burgesses are described as belonging to other manors. If tenure was the basis of their right, they would have belonged altogether to the manors, and would not be described of the boroughs, because they did not hold of them. But if residence made them burgesses, then the entry is explained reconcilably with facts, because they would in respect of their resiancy be burgesses in the place of their residence, but would be entered under the manors of which their lands were held. There are also, numerous instances in which, the burgesses being distinctly connected with their houses, and the latter being “inhabited," it is impossible not to infer that they were householders. They paid the custom of gable for their houses, and other taxes. In the entry as to Canterbury, 14 burgesses are mention d instead of their houses; and in Thetford, Norwich, and other places, the identity cannot be mistaken. It is also clear from many passages that all the householders were not burgesses. Peers, ecclesiastics, minors, villains, and persons of infamous character were excepted from the privileges and also exempted from the duties of burgessship; many houses are therefore mentioned in the returns which had not burgesess. Those only who bore their share of the burthens of the place, or, according to the laws of the Saxons and of William the Conqueror, paid scot and bore lot, were entitled to the privileges; those who from poverty or other cause did not pay the charges or serve the public offices of the borough being excluded. It would have been inconsistent with the whole system of the law at that time if non-residents could have been burgesses; and therefore we find throughout this document that the burgesses were resident, and in that respect distinguished from the members of the trading companies who might be non-resident."
A careful examination of Domesday Book shows clearly that at the time of its compilation, no municipal corporations were in existence, although several ecclesiastical corporations are mentioned. During the reign of William II. no municipal grants nor any changes in the municipal institutions appear to have been made. Henry I. granted charters to several boroughs, but they were not charters of incorporation. They were principally devoted to enlarging the powers of local self-government possessed by the burgesses of the places to which they related. About this period, or soon afterwards, a very important change in their government took place. The bailiff appointed by the king was charged with the duty of assessing and
• Merewether and Stephen's “ History of Boronghs, &c.," 1833.