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Royal Commission on Municipal Corporations (1835)

First Report:  Parliamentary. Papers. 1835/xxiii.

Defects in the Constitutions of Municipal
Corporations, according to the Commissioners of 1835

After the passing of the 1832 Reform Act the next
logical step in the reform of the constitution was that of the Municipal
Corporations. There were about 250 of these towns, each of which at some time
in the past had received a Royal Charter to have its own council or
corporation. There were great variations in how the corporations were chosen
and how they functioned but in over 180 of them, only the members of the
Corporation were allowed to vote. Normally they re-elected themselves or
brought friends and relatives onto the council. The Commission found generally
that power was held by a small number of people because so few townsfolk could
vote. They also found evidence of corruption with the council members becoming
rich at the expense of the town's inhabitants.

Following the same procedures that had been adopted for the investigation
of the Poor Laws,
in July 1833 the Whig government
set up a Royal Commission was set up to investigate the working of local
councils. The Commission's secretary was Joseph Parkes, a
radical lawyer. 285 towns were investigated, most of which were found to be
unsatisfactory. As a result of the Commission's findings, a Bill was drawn up
and brought to the House of Commons by Lord John Russell in
June 1835.

The Bill went through the House of Commons without too much difficulty but
the House of Lords proved more difficult. Most of the closed corporations were
controlled by Tories and the
Tory peers claimed that the Bill was an attack on privileges and property.
They had used the same reasons to oppose the abolition of rotten boroughs
during the 1832 Reform Act campaign. The Lords made some amendments to the
Bill but, thanks to the efforts of the Duke of Wellington
and Sir Robert
Peel, the Tory Lords were restrained from throwing out the Bill
altogether. The legislation went onto the Statute Book in September 1835.

The following extracts are from the Report and demonstrate some of the
worst defects of local government.

... The most common and most striking defect in the
constitution of the Municipal Corporations of England and Wales is, that
the corporate bodies exist independently of the communities among which they
are found. The Corporations look upon themselves, and are considered by the
inhabitants, as separate and exclusive bodies; they have powers and privileges
within the towns and cities from which they are named, but in most places all
identity of interest between the Corporation and the inhabitants has
disappeared. This is the case even where the Corporation includes a large body
of inhabitant freemen: it appears in a more striking degree, as the powers of
the Corporation have been restricted to smaller numbers of the resident
population, and still more glaringly, when the local privileges have been
conferred on non-resident freemen, to the exclusion of the inhabitants to whom
they rightfully ought to belong.

The importance which the privilege of electing Members of Parliament has
conferred upon Corporate Towns, or rather upon the governing bodies there, and
the rewards for political services, which are brought within the reach of the
ruling corporators, have caused this function to be considered in many places
as the sole object of their institution. In some Boroughs this right has
survived all other traces of municipal authority. The custom of keeping the
number of corporators as low as possible may be referred to this cause, rather
than to the desire of monopolizing the municipal authority, which has been
coveted only as the means of securing die other and more highly prized
privilege.

Hence a great number of Corporations have been preserved solely as
political engines, and the towns to which they belong derive no benefit, but
often much injury, from their existence. To maintain the political ascendancy
of a party, or the political influence of a family, has been the one end and
object for which the powers intrusted to a numerous class of these bodies have
been exercised. This object has been systematically pursued in the admission
of freemen, resident or non-resident; in the selection of municipal
functionaries for the council and the magistracy; in the appointment of
subordinate officers and the local police; in the administration of charities
entrusted to the municipal authorities; in the expenditure of the corporate
revenues, and in the management of the corporate property. The most flagrant
abuses have arisen from this perversion of municipal privileges to political
objects. The Commissioners have generally found that those Corporations which
have not possessed the Parliamentary franchise, have most faithfully
discharged the duties of town government, and have acquired, more than others,
the confidence and good-will of the communities to which they belong. This has
been the case in some, even where the ruling bodies are strictly self-elected,
and where the general character of their constitutions is open to the
objections.. common to the great majority of Corporations. Very few large
corporate towns were without Members of Parliament, even before the Reform
Act, so that many instances cannot be given from among them. The Corporations
of Leeds, Lynn and Doncaster may be cited as turning their attention to their
municipal duties more sedulously than the majority. Among the small towns,
deserving the same character, we refer to the Corporations of Louth, Bideford,
Maidenhead, Beccles, South Molton and Stratford-upon-Avon.

In the few boroughs in which the powers of local government are
vested in a numerous body of freemen, the general character of the governing
body is vitiated by the defects of its organization, which have already been
pointed out. The exclusive and party spirit which belongs to the whole
corporate body, appears in a still more marked manner in the councils by which
inmost cases it is governed. It has been stated that the members of these
councils are usually self-elected, and hold their offices for life. They are
commonly of one political party, and their proceedings are mainly directed to
secure and perpetuate the ascendancy of the party to which they belong.
Individuals of adverse political opinions are, in most cases, systematically
excluded from the governing body. Since the repeal of the Corporation
and Test Acts, and the removal of the civil disabilities of
the Catholics, very few instances occur in which either Catholics or
Dissenters, who often form a numerous, respectable and wealthy portion of
the inhabitants, have been chosen into the governing body of the corporation.
These councils, which embody the opinions of a single party, are entrusted
with the nomination of magistrates, of the civil and criminal judges, often of
the superintendents of police, and are or ought to be the leaden in every
measure that concerns the interests and prosperity of the town. So far from
being the representatives either of the population or of the property of the
town, they do not represent even the privileged class of freemen; and being
elected for life, their proceedings are unchecked by any feeling of
responsibility. The discharge of the functions with which they are entrusted,
is rendered difficult by the dislike and suspicion which the manner of their
election inevitably entails upon them.

To this system may be traced the carelessness often observed in the
execution of their duties; and persons well qualified for the council are
excluded, sometimes for want of vacancies, sometimes through the rejection of
the electing body, some times through the refusal of such persons to identify
themselves with a system of which they disapprove. The common council of the
city of London presents a striking exception to the system of self-election
for life, and it affords a remarkable instance of the absence of those evils
which we refer to it. The common councilmen of this city are annually elected
by a numerous constituency, yet changes seldom happen among them. The
important requisites of experience in the functionary, and the power of
control in the electors, are there effectually united, and produce that
efficiency and confidence which are wanting in most other corporate towns. The
history of the common council of London is that of a body which has watched
vigilantly over the interests of its constituents, and for a long series of
years has studied to improve the corporate institutions with great
earnestness, unremitting caution, and scrupulous justice.

It is part of the general system of close Corporations that all their
affairs should be managed with the strictest secrecy, sometimes secured by
oaths administered to the member of the common council. The inhabitants who
are subject to the authority of the Corporation, have frequently very
imperfect information, as to its nature and extent; they are ignorant whether
it derives its sanction from prescription, from charters, or from bye-laws;
and the only mode by which they can obtain information is often through the
troublesome and expensive process of an application for a mandamus or
quo warranto. The bye-laws which are made, as well as those which are
repealed, are seldom published, and the public is generally unacquainted with
their provisions, except from common rumour. This ignorance is sometimes
shared by the members of the Corporation. Hence violations of the charters and
bye-laws have been often made with impunity.

In some cases the duties of the mayor have been totally
neglected, either from want of capacity or from wane of will; occasionally
from non-residence. At Hartlepool, where the mayor is chosen in rotation from
the capital burgesses, many of whom are non-resident, it sometimes happens
that the mayor never attends even worn into office. At Winchester, the present
high steward was chosen mayor during an important litigation in which the
Corporation was involved. He was the son of the patron, and was admitted a
freeman the year before his election as mayor. The mayor was ex officio a member
of the committee for conducting the litigation; but be appointed a deputy, and
entered on the records of the Corporation a protest of his ignorance of all
relating to it. At Durham, the mayor of the year 1831-2 refused to render the
usual account of receipts to the common council.  The mayor of Grampound
left the borough upon its disfranchisement, and the corporation books and
accounts have not been found-since. No new mayor was elected after the
disfranchisement, until the year in which the present Commission issued. In
some boroughs, the same mayor is continued from year to year; and in others,
as at Cambridge and Tenby, it has been the custom to elect two or three
persons in rotation. The effect of entrusting the election to the freemen,
constituted as those freemen now generally are, is to degrade the office in
the estimation of the persons robe governed. At Maidstone, the election is
merely a struggle to try the strength of opposing parties without any personal
preference, and bribes are given by persons wishing to avoid being elected.

The method of appointing the Recorder is often very objectionable. At
Newport, in the Isle of Wight, the recorder is appointed formally by the Crown
on the nomination of the whole corporation, but practically on the dictation
of the patron. On one occasion, a nobleman was chosen recorder there, whose
connexion with the Corporation consisted in his being a trustee for the
managing the property of a deceased patron. At Woodstock, the recorder's
office has been vacant for several years, because the patron's nominee was
opposed. The Recorders of some boroughs are elected by a constituency of
freemen, such as we have already characterised. At Berwick-upon-Tweed, a
Recorder so chosen, tries capital felonies. This officer also unites functions
in some cases, which are improperly joined. This occurs, when he lives in the
neighbourhood, and discharges the duties of a resident magistrate, at the same
time that he is by virtue of his office, the presiding judge of the Criminal
Court. In many instances he performs no duties whatever, and his nominal
connexion with the borough is only a form through which he exercises over it
an unwarrantable control.

The charters have often empowered the Recorder to appoint a deputy. The
exercise of this power is occasionally useful; but the practice of appointing
a deputy permanently to discharge all the duties of the Recorder is very
mischievous. Not only is the appointment placed in the hands of an
irresponsible individual, but the difficulty of finding qualified persons to
fill the situation is increased. Many persons would accept the office of
principal, who would decline the office of deputy.

The party spirit which pervades the Municipal councils, extends
itself to the magistracy, which is appointed by those bodies, and from their
members. The magistrates are usually chosen from the aldermen, and the
aldermen are generally political partisans. Hence, even in those cases in
which injustice is not absolutely committed, a strong suspicion of it is
excited, and the local tribunals cease to inspire respect The corporate
Magistrates, generally speaking, are not looked upon by the inhabitants with
favour or respect, and are often regarded with positive distrust and
dislike.

The corporate magistrates are often selected from a class incompetent to
the discharge of judicial functions, and the consequence has been a great
defect in the administration of justice. At East Retford, a respectable
witness, who had been clerk to the magistrates, declared that one of the
magistrates was in the habit of conversing familiarly with the culprits
brought before him, and endeavoured to impress them with the idea that he was
performing an unwilling office. On one occasion he saw the magistrate fighting
with a prisoner, and struggling with him on the floor. At Malmesbury, the
magistrates are often unable to write or read. At Wenlock blank warrants have
been signed by the magistrates: in one case a blank warrant of commitment was
granted by mistake, instead of one of apprehension, and the constable had it
in his possession for several weeks before he executed it. The jurisdiction of
the borough magistrates at Wenlock is exclusive; it extends over 17 parishes,
and contains a population exceeding 17,000 persons.

Even when the corporate magistrates belong to a superior class, they are
often selected from the senior aldermen only, who, from age and infirmities,
soon become incapable of performing the functions of their office, while a
mistaken notion of dignity keeps them from resigning it.

The evils resulting from the ignorance and inefficiency of the
borough magistrates, are heightened by gross defects in other parts of the
judicial system. The juries of the borough courts are often exclusively taken
from the freemen, who, besides being composed of an inferior class, are
strongly tainted with party feelings. Northampton furnishes a strong instance
of this. At Carmarthen, verdicts are frequently given against justice, from
party bias. The population of that town is 10,000, but the jurors are chosen
from a small body of 178 burgesses. At the spring assizes of 5833, a true bill
was found by the grand jury of the borough for a capital felony. The grand
jury consisted of 20 burgesses; of these, 17 belonged to the Corporation
party, and the foreman was the committing magistrate. The panel of the petty
jury contained 46 persons belonging to the Corporation parry, 12 of the
defendants' party, and only two neutrals. An application was made to the
judge, to order the indictment to be tried in Carmarthenshire.  The trial
took place there, and the defendants were acquitted. The very answer to this
statement was given by one of the sheriffs, who said that there was not a sufficient number of respectable
persons of the defendants' party, to enable them to summon a grand jury
equally from both sides, and that the Petty jury was summoned from those
burgesses who had not attended the previous assizes. At Haverford West, where
none but burgesses can serve on the juries, there are only 141 burgesses, and
not 50 who are fit to serve on them: the juries there have been openly
reprimanded by judges and magistrates for improper acquittals of burgesses
upon criminal prosecutions; the practice has not been checked by such
reprimands, and the general opinion is, that it is "impossible to convict a
burgess."

The police belonging to Municipal Corporations is for the most
part very sufficient, and for supplying the deficiency, resort is had to local
Acts. The superintendence of the police, and the powers necessary for
watching, paving, lighting. cleaning and supplying the towns with water,
instead of being entrusted to the municipal authorities, are for the most part
committed by these Acts to various independent bodies; although none of these
towns are too extensive to be embraced by one system of municipal government;
for instance, every quarter of the town of Bath is under the care of a
separate board, except one, which is totally unprotected. Much confusion
results from this divided authority. The powers of local taxation, and the
superintendence of matters so closely connected with the comfort and well
being of the inhabitants, which are now exercised by these bodies, appear to
belong precisely to that class of objects for which corporate authority was
originally conferred; but great dissatisfaction would prevail among the
inhabitants, if these powers were entrusted to the Municipal Corporations as
at present constituted. In several towns much apathy is now shown by the
inhabitants with respect to the municipal benefits conferred by these Acts; in
Southampton, where the consent of the inhabitants is required to bring them
within the powers of a local Act, nearly half of the town has refused the
benefit of it. Great jealousy often exists between the officers of police,
acting under the Corporation and those under the Commissioners of these local
Acts, and the corporate body seldom rakes any active share in the duties of
the board, of which its members form a part. At Bristol, a notoriously
ineffective police cannot be improved, chiefly in consequence of the jealousy
with which the Corporation is regarded by the inhabitants. At Hull, in
consequence of the disunion between the governing body and the inhabitants,
chiefly arising out of a dispute about the tolls and duties, only seven
persons attended to suppress a riot, out of 5,000 who had been sworn in as
special constables, and on another similar occasion none attended. At
Coventry, serious riots and disturbances frequently occur, and the officers of
police, being usually selected from one political party, are often active in
fomenting them. In some instances, the separate and conflicting authority of
the Commissioners is avowedly used as a check and counterbalance to the
political influence of the Corporation. At Leeds, no persons are elected
Commissioners of Police whose political principles are not opposed to those of
the Corporation.

An ineffectual attempt to obviate the evils resulting from the want of a
well-organized system is made in some towns by subscriptions for private
watchmen. At Winchester, after a local Act had been obtained, its powers were
found to be insufficient, and the town is now watched by private subscription,
to which the commissioners contribute £100 from the rate.

The superintendence of the paving and lighting. &c., of the various
towns is in the same unsatisfactory state, but, in this branch of police, the
want of a single presiding authority leads perhaps to less evil and
inconvenience.

In general, the corporate funds are but partially applied to
municipal purposes, such as the preservation of the peace by an efficient
police, or in watching or lighting the town, &c.; but they are frequently
expended in feasting, and in paying the salaries of unimportant officers. In
some cases, in which the funds are expended on public purposes, such as
building public works, or other objects of local improvement, an expense has
been incurred much beyond what would be necessary if due care had been taken.
This had happened at Exeter, in consequence of the plan of avoiding public
contract, and of proceeding without adequate estimates. These abuses often
originate in the negligence of the corporate bodies, but more frequently in
the opportunity afforded to them of obliging members of their own body, or the
friends and relations of such members.

Some Corporations consider that their property has been vested in them
solely as trustees for the public; but, in most cases, this truth is
acknowledged only when forced on their attention, is received with difficulty
and qualification, and is continually forgotten. Few Corporations admit any
positive obligation to expend the surplus of their income for objects of
public advantage. Such expenditure is regarded as a spontaneous act of private
generosity, rather than a well-considered application of the public revenue,
and the credit to which the Corporation, in such a case, generally considers
itself entitled, is not that of judicious administrators, but of liberal
benefactors. Even in these cases, party and sectarian purposes often prevail
in its application.

From this erroneous but strongly rooted opinion, that the property of the
Corporations is held in trust for the benefit of the corporate body only,
distinguishing that body from the community with which it is locally
connected, the transition is not difficult to the opinion that individual
corporators may justifiably derive a personal benefit from that property. At
Cambridge, the practice of turning the Corporation property to the profit of
individuals was avowed and defended by a member of the council.

In conclusion, we report to YOUR MAJESTY that there prevails amongst the
inhabitants of a great majority of the incorporated towns a general, and, in
our opinion, a just dissatisfaction with their Municipal Institutions; a
distrust of the self-elected Municipal Councils, whose powers are subject to
no popular control, and whose acts and proceedings being secret, are unchecked
by the influence of public opinion; a distrust of the Municipal Magistracy,
tainting with suspicion the local administration of justice, and often
accompanied with contempt of the persons by whom the law is administered; a
discontent under the burthens of Local Taxation, while revenues that ought to
be applied for the public advantage arc diverted from their legitimate use,
and are sometimes wastefully bestowed for the benefit of individuals,
sometimes squandered for purposes injurious to the character and morals of the
people. We therefore fed it to be our duty to represent to YOUR MAJESTY that
the existing Municipal Corporations of England and Wales neither possess nor
deserve the confidence or respect of YOUR MAJESTY'S subjects, and that a
thorough reform must be elected, before they can become, what we humbly submit
to YOUR MAJESTY they ought to be, useful and efficient instruments of local
government.

We humbly submit this our Report to YOUR MAJESTY'S Royal Consideration.

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