Ancient Borough - Charters of Incorporation

Charters of Incorporation

In the 15th century disturbances in the boroughs led to the issue of new constitutions, some of which were the outcome of royal charters, others the result of parliamentary legislation. The development of the law of corporations also at this time compelled the boroughs to seek new charters which should satisfy the now exacting demands of the law. The charters of incorporation were issued at a time when the state was looking more and more to the borough authorities as part of its executive and judicial staff, and thus the government was closely interested in the manner of their selection. The new charters were drafted in such a way as to narrow the popular control. The corporations were placed under a council and in a number of cases popular control was excluded altogether, the whole system being made one of co-optation. The absence of popular protest may be ascribed in part to the fact that the old popular control had been more nominal than real, and the new charter gave as a rule two councils of considerable size. These councils bore a heavy burden of taxation in meeting royal loans and benevolences, paying per capita like the magnates of the 12th century, and for a time there is on the whole little evidence of friction between the governors and the governed. Throughout, popular opinion in the closest of corporations had a means of expression, though none of execution, in the presentments of the leet juries and sessions juries. By means of their "verdicts" they could use threats against the governing body, express their resentment against acts of the council which benefited the governing body rather than the town, and call in the aid of the justices of assize where the members of the governing body were suspected of fraud.

Elizabeth repeatedly declared her dislike of incorporations "because of the abuses committed by their head rulers," but in her reign they were fairly easily controlled by the privy council, which directed their choice of members of parliament and secured supporters of the government policy to fill vacancies on the borough bench. The practice in Tudor and Stuart charters of specifying by name the members of the governing body and holders of special offices opened the way to a "purging" of the hostile spirits when new charters were required. There were also rather vaguely worded clauses authorizing the dismissal of officers for misconduct, though as a rule the appointments were for life. When under the Stuarts and under the Commonwealth political and religious feeling ran high in the boroughs, use was made of these clauses both by the majority on the council and by the central government to mould the character of the council by a drastic "purging." Another means of control first used under the Commonwealth was afforded by the various acts of parliament, which subjected all holders of municipal office to the test of an oath. Under the Commonwealth there was no improvement in the methods used by the central government to control the boroughs.

All opponents of the ruling policy were disfranchised and disqualified for office by act of parliament in 1652. Cases arising out of the act were to be tried by commissioners, and the commissions of the major-generals gave them opportunity to control the borough policy. Few Commonwealth charters have been preserved, though several were issued in response to the requests of the corporations. In some cases the charters used words which appeared to point to an opportunity for popular elections in boroughs where a usage of election by the town council had been established. In 1598 the judges gave an opinion that the town councils could by-law determine laws for the government of the town regardless of the terms of the charter. In the 18th century the judges decided to the contrary. But even where a usage of popular election was established, there were means of controlling the result of a parliamentary election. The close corporations, though their right to choose a member of parliament might be doubtful, had the sole right to admit new burgesses, and in order to determine parliamentary elections they enfranchised non-residents. Where conflicts arose over the choice of a member, and two selections were made, the matter came before the House of Commons. On various occasions the House decided in favour of the popularly elected candidate against the nominee of the town council, on the general principle that neither the royal charter nor a by-law could curtail this particular franchise. But as each case was separately determined by a body swayed by the dominant political party, no one principle was steadily adhered to in the trial of election petitions. The royal right to create boroughs was freely used by Elizabeth and James I. as a means of securing a submissive parliament.