Pages 116-141
Cardiff Records: Volume 2. Originally published by Cardiff Records Committee, Cardiff, 1900.
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In this section
Town Clerk Wood's Memoranda.
Extracted from a MS. book compiled by Mr. John Wood, Town Clerk of Cardiff, 1825.
First comes a series of translations of some of the Charters. In that of Hugh le Despenser, the word "corf" puzzled the translator very much. He decided to connect it with "corisfecta," and to translate it "leather articles." The word is the Welsh "corph" (from Latin corpus) and evidently means a trading corporation or guild.
Then comes a series of Cases for Counsel's Opinion, with the Opinions. These documents I will set out in an abridged form.
The first cites the most material parts of all the Charters, and asks Counsel's opinion as to the power and authority of the Constable of Cardiff Castle and his Deputy.
Mr. Wood's statement is as follows:—
Case I.
It is observable that in the earliest Charter mention is made of the Constable of the Castle, and a certain power and authority is vested in him which is recognised and confirmed in all the succeeding Charters. It is also observable that he is throughout styled by the Grantors "our Constable," or "the Constable of our Castle." But how he was appointed, or by whom, or whether he held the office by hereditary right, or by gift or grant, or whether for life or pleasure or otherwise, can nowhere be discovered. However, it is presumed that he was appointed by the Lord and, as it seems, with the view principally to take care that the tolls were properly collected.
Admitting the Constable of the Castle to have been appointed at the pleasure of the Lord, it still remains doubtful whether the power of appointing belonged to the Lords successively as Lords of the County of which Cardiff was a part, or whether it was a right claimed and exercised by them as incident to the ownership of the Castle.
Of late years, and indeed so far back as the books of the present Corporation go, it is clear that the Lord of the Borough has appointed a person to exercise the office of Constable; and he can exercise the right of course as incident to the ownership of the Castle only, and not as Lord of Glamorgan. But how he can exercise this right of appointing a judicial officer, is one point which we wish to ascertain. By the Charter of James I. the Constable of the Castle for the time being is empowered to act as a Justice of the Peace. The books say none but the King can make a Justice of the Peace, and that the King cannot grant a power to make them; neither can a man prescribe to have such a power. By statute, Justices are to be made by Letters Patent under the Great Seal. Yet, in effect, if the Lord of the Borough can appoint the Constable, he does make and constitute a Justice of the Peace. (fn. 1)
It is provided by Statute of H. 8 that all cities, boroughs and towns corporate which have liberty, power and authority to have Justices of Peace shall still have and enjoy their liberties and authorities in that behalf, after such like manner as they have been accustomed, without any alteration by occasion of the Act. It is presumed that this liberty, power or authority cannot be created by the Lord of the County—though it must be admitted that, whatever may have been the origin of the Constable's appointment, the Royal Charters have confirmed to the Burgesses all their liberties and quittancies. (fn. 2)
Your Opinion is therefore in the first place requested whether the Lord of the Borough can by reason of his ownership of the Castle, or by custom derived from the Lords of Glamorgan, appoint whom he pleases to be Constable of the Castle; or whether it is not rather a personal office, which he is bound to execute in propria persona. (fn. 3)
By the aforesaid Charter of James I. a power coextensive with that of Justices of Peace for Counties, to enquire of offences done within the liberties of the Town is given, to the Constable, the Bailiffs, Steward and Senior Alderman for the time being, or an three of them (of whom the Constable and the Senior Bailiff for the time being are to be two). It seems clear that the power is given to them all jointly, and that if either the Constable or Senior Bailiff is absent the power is rendered altogether nugatory.
Your opinion is therefore secondly requested whether it be not incumbent on the Constable to reside within the liberty or within a reasonable distance, so that the power may be enforced when occasion requires, without having to send and wait for his travelling 100 or 150 miles, and even then to wait his pleasure.
The duty and office of the Constable is clearly judicial. It is presumed, therefore, that he cannot appoint a Deputy. The books say that a judicial officer cannot appoint a Deputy. (fn. 4)
You will therefore please to say if you think the Constable can appoint a Deputy, even if the appointment is to exercise the office by himself or his Deputy.
The Charters throughout say nothing of the office of Town Clerk. The officer therein designated Steward has always been distinct from a Town Clerk, and is commonly termed the Recorder.
The Town Clerk is, as far as we know, in all cases considered the officer of the Corporation, and we believe is in all other corporate towns appointed by the acting body corporate. By some means or other, the Lord of the Borough of Cardiff has, for the last 100 years at least, claimed and exercised the right of appointing this officer himself. On what basis this claim and practice rest is unknown; but the Lord for the time being has from time to time appointed this officer under his seal, to exercise the functions of the office. The present Lord of the Borough appointed the present Town Clerk, under seal, to exercise the duties by himself or his deputy, quam diu se bene gesserit. (fn. 5)
Your opinion is requested whether the Lord of the Borough can maintain this right of appointment; and whether the present Town Clerk can appoint a Deputy.
The present Town Clerk some short time back was elected and sworn Alderman; but was never one of the Senior Aldermen, consequently his office partook of nothing of the judicial character. Attempts are being made to turn him out of the office of Town Clerk, on the ground that, by accepting the office of Alderman, he vacated that of Town Clerk, since they are incompatible.
Your opinion is requested as to whether the present Town Clerk, by accepting the office of Alderman, did vacate the Town Clerkship. If you should be of opinion that he did, then, whether a resigning of the office of Alderman before he was amoved from the Town Clerkship purged the forfeiture so that he may continue to hold it without fear of amotion.
Opinion.
I think there is nothing contrary to Law in the right claimed by the Lord of the Borough and owner of the Castle to appoint whomsoever he pleases to be Constable (fn. 6) of the Castle, although the Charters attach to that office certain corporate rights, and although the Charter of King James I. attaches to it the powers of a Justice of the Peace within the Borough. And that the right is well founded, I think appears from the long and undisputed exercise and enjoyment of it.
I do not think that the Constable can be compelled to actual residence within the Borough or within any particular distance from it; but I think that he is bound to attend, when necessary, for the purpose of holding the Quarter Sessions of the Borough, or for swearing in the corporate officers who are required by Charter to be sworn in before him. In the event of his refusal, I think he might be compelled by Mandamus; or, if his refusal should be persisted in, that he might be indicted for refusing to perform the duties of his office. I do not think that the Corporation have any power to amove him from his office; this power seems to me to belong to the Lord of the Borough, who has the right of appointment.
There are certain cases in which a judicial officer may appoint a Deputy, when sanctioned by custom and by the terms of his own appointment. But I think that the Constable of Cardiff Castle cannot lawfully appoint a Deputy to exercise the functions of a Justice of the Peace; which by the Charter of King James I. are assigned to the Constable. I am inclined to think that he might appoint a Deputy to swear in the officers, if that has been the custom, and if it is according to the terms of his own appointment.
If it could be clearly shewn that no such officer as a Town Clerk existed before the Charter of King James I., I should think it probable that the Lord could not support the alledged right of appointment. But if this should appear doubtful, as it probably must do, then I think that the exercise of the right by the Lord for so long a period would be evidence that it had existed ever since the first formation of the Borough; and that it might on that ground be supported. (fn. 7)
I think that the present Town Clerk may appoint a Deputy, as has been done in other instances by former Town Clerks.
I should think that the office of a junior Alderman is not incompatible with that of Town Clerk, unless the accounts of the Town Clerk are settled, or his conduct controlled, by the Aldermen; in which case I should think that his acceptance of the office of Alderman would vacate his office of Town Clerk, and that his subsequent resignation of the office of Alderman would not restore him to the office of Town Clerk.
JOHN RICHARDSON,
Temple,
Feby 9th, 1818.
Case II.
By the Charter of King James I. twelve of the Burgesses are to be elected, in manner mentioned below, Capital Burgesses of the Town of Cardiff. By the same Charter the nomination, election, and swearing in of the Bailiffs, Capital Burgesses and other officers and ministers of the Corporation shall be on the days, times, places and periods, and in such manner and form, as they were wont to be or ought to have been in times past nominated, elected and sworn within the said Town.
[Margin:—This is a singular clause as applied to Capital Burgesses, as I find no mention at all of them before the Charter of James I.—H.A.M.]
The Marquess of Bute is Lord of the Borough, and he and his ancestors always kept back the Charters and endeavoured to make the Borough a Close Borough; but lately copies of the Charters have been obtained and the Burgesses at large wish to throw the Borough open. The oldest book in the Corporation coffers begins in the year 1688; (fn. 8) and in the entry of election of officers of the Corporation, such as Bailiffs, Ale Tasters and Serjeants at Mace, Constables of the Town and other officers, which always takes place on the feast of Saint Michael the Archangel (29 September) yearly, there does not appear any entry of the election of a Capital Burgess. And the first entry of the election of a Capital Burgess appears to have been made at a Court of Record in the year 1692, in the following words:—
"Cardiff villa. In le Guildhall vill' pred' decimo die Augusti "anno R.Rs & Re Will'i & Marie Angl' &c. Quarto, Annoq' D'ni "1692, coram Cradoco Nowell et Ludovico Cox armiger' Balls vill' "pred' &c. Elecc'o Capital' Burgen' ejusdm Ville Georg' Stephens "Junr die & anno suprad' ad exequend' offic' Capital' Burgen' infra "eandm villam & lib'tates ejsdm Cora' p'fatis Ballis;" and in 1707 the next entry runs thus:—
"Cardiff Vill. Att a Com[m]on Councell held this 15th day of "December 1707. It appearing to us whose names are hereunder "subscribed, that Joseph Hoar, George Pranch and William Murton, "three of the Capitall Burgesses, were deceased; in order to fill up "those Vacancies the Majority of the Choice fell on Will[ia]m Jones "Junr, Apothecary; Pethuel Sheers, Mercer; John Jones, ffarmer. "Witness our Hands—Alexr Purcell, Nath (fn. 8) Wells, Bailiffs; Cra. "Wells, Senr Alderman; Wm Jones, Alexr Pursell, Jo[h]n Archer, "Lewis Cox, Emell Miles, Aldermen; Jno Rowbotham, Mich (fn. 8) "Richards, James Jones: William Jones Junr was accordingly "first Sworne & Admitted one of the twelve Capitall Burgesses "in Open Councell the sd 15th day of Decr 1707. I[m]mediatly after"wards Pethuel Sheers was in like manner Sworne & Admitted one "of the sd Twelve the same day; & afterwards John Jones was in "like manner Sworne and Admitted; Alexr Purcell, Nath. Wells; "Michl Richards, Towne Cl:",
From that period it seems to have been the usage of the Common Council to appoint Capital Burgesses themselves, without consulting the Burgesses at large, (fn. 9) and at all periods of the year as a vacancy happens; and that they consider the office of a Capital Burgess to be for life. The Aldermen elect and fill up vacancies of Aldermen from Capital Burgesses only, and this appears to have been the usage from the year 1716. But prior to 1716 it does not appear whether the persons from time to time elected Aldermen were previously Capital Burgesses or not.
By this means the Lord of the Borough having at one time obtained a majority of votes in the Common Council (which he still retains), has the sole management of the Borough. And so little did the Lords attend to the interests of the Corporation, that in 1722 an illiterate man was appointed Bailiff. (fn. 10)
On a late vacancy of Capital Burgess, happening by death, a Common Council was held for appointing another. It was then contended by some of the Council that the election of a Capital Burgess ought to be made by the Burgesses at large, and on the 29th of September; but the majority proceeded to election.
[Margin:— "That was in direct contravention of the proviso in the Charter of Rd Duke of Gloucester.—H. A. M."]
Your opinion is requested 1st whether the Capital Burgesses ought to be elected annually, and if so on what day.
Opinion.
1. I am of opinion that the Capital Burgesses are not required to be elected annually. The early Charters do not mention them. The Charter of James I. refers their election to the former usage, although there is no trace of the existence of such a body before that Charter. The entries cited raise the inference that the election was not annual, and show that the Capital Burgesses were not elected with the other annual officers at Michaelmas. The first entry of election of Capital Burgesses, in 1692, is in August, and not on the usual day of election. That in 1707 is in December, and purports to be an election for the purpose of filling up the vacancies of three who were dead. This goes a great way to negative an annual election; unless the three persons had died in the course of the year, which is not probable. Under these circumstances, and there being no provision in the Charter for the election at any particular period, nor any limitation of time for which they should be appointed, I think it must be taken to be (according to the general Law) an appointment for life—particularly as by the Charter the Aldermen are to be so elected.
Secondly, in whom is the Election of Capital Burgesses?
2. As the Charter is so obscurely worded with regard to the election of Capital Burgesses, referring in the first place to a mode of election to be afterwards mentioned, and in the subsequent part directing the election to be made according to the former usage— although the Capital Burgesses appear to be then for the first time appointed—this question seems to be involved in much doubt.
The first entry, in 1692, is silent as to the electors. That of 1707 describes the election as at a Common Council; which, coupled with the subsequent usage, would go a great way to give the right of electing the Capital Burgesses to the Common Council. On the other hand, although the Common Council, who are part of the Burgesses, have elected, that fact does not of itself clearly negative the right of the rest of the Burgesses to vote; and the latter passage in the Charter might be construed to refer the election of Capital Burgesses to the former usage as to other elections. If this be the proper construction, then all the elections being (prior to that Charter) in the Burgesses at large, that of Capital Burgess would fall into the same hands. And as the general principles of Law are in favour of the general right, and against that of the select body, I think the latter ought not to be upheld, notwithstanding the usage which is of no avail unless it is supported by a Charter or Bye Law proved or to be preserved. Nor could the Common Council, who are not the representatives of the Burgesses at large, but created by the Crown, make a bye-law to exclude the body at large from the right of election.
Fifthly, your opinion is also requested whether (notwithstanding the usage to the contrary) the Aldermen may fill up vacancies of Aldermen from the Burgesses at large; or must it be from the Capital Burgesses?
5. The words of James the First's Charter being general, "that 12 of the Burgesses shall be Aldermen"; and there being in that Charter nothing to confine the election to those of the Common Council, but on the contrary the clause for their future elections stating generally "that they should be chosen out of the Burgesses"; and the prior Charter of Queen Elizabeth having also generally directed that the Aldermen should be "12 of the more sufficient & discreet of the Burgesses" (those appointed in that Charter being also merely described as Burgesses, and that before the creation of the select body of the Capital Burgesses by the Charter of James), I am of opinion that the mere usage since 1716, of electing the Aldermen from the Capital Burgesses, is not sufficient to negative the unlimited right of the Aldermen to elect from the body of the Burgesses at large, as inferred from the circumstances stated before. I conceive therefore that the Aldermen may fill up their vacancies from the body at large, and are not restricted to an election from the Common Council alone.
Sixthly, the Lord of the Borough has so far back as 1692 appointed the Constable of the Castle:—
"Cardiff Villa. In Guildhall Ville pred', Vicesimo tercio Die "Marcij Anno Regn' D'ni R's et D'ne Regine Will'i et Marie dei gra' "Angl', Scot', ffranc' et Hib'nie, fidei Defensor', &c. Quinto, Annoq' "D'ni 1692/3 Cora' Cradoco Wells et Alexandro Pursell, armigeris, "Ball'is Ville pred'e Necnon Justiciar' D'c'or' D'ni R's et D'ne Regine "ad pacem infra Villa' pred' conseruand' atq' custodiend', et Will'us "Herbert de Gabalva, ar', existen' no'i'at' et constitut', per patent' "prenobi's Thome, Comitis Pembroke et Montgomery, Constabular' "Castri Ville pred', tunc jurat' fuit ad exequend' officiu' Justiciar' "pacis infra Villa' pred' et Lib'tates ej'sd'm." See fol. 5 under the words "but only the Constable aforesaid and Bailiffs of the same Town who shall have been elected by the Burgesses themselves." Some of the Burgesses contend the appointment of the Constable to be in the Burgesses.
Your opinion is further requested whether the Lord or the Burgesses have the appointment of the Constable.
Ought the Constable to reside within or within reach of the town?
It has been the usage for the Constable to appoint a Deputy for the purpose of swearing in the officers of the Corporation. Has he by Law such power, he being a magistrate?
6. In all probability an enquiry into the early history of the Constableship of the Castle of Cardiff would clearly establish that the Lord had the appointment of the Constable. (fn. 11) And, from the description of that officer in the Charter of Hugh le Despenser, as well as in the subsequent Charters, I think it seems clear that he was the officer of the Lord. I see no reason for supposing that the Burgesses have any right to appoint him. The usage, as evidenced by the document of 1692 seems to give the appointment to the Lord, and the words of the Charter of Hugh le Despenser do not appear to me to contradict that usage. The exclusion of all the Lord's officers but the Constable and Bailiffs of the Town, "who shall have been elected by the Burgesses themselves," appears to be open to the construction that the latter words should be applied only to the Bailiffs, and not to the Constable. For the Charter gives the election of Bailiffs to the Burgesses, but not that of the Constable, who seems to be described as officer of the Lord.
Neither do I see any reason why the Constable should reside. He no doubt formerly resided in the Castle, which probably is out of the jurisdiction of the Borough (fn. 12) He is directed by the early Charters to be the Mayor; but the Bailiffs and Aldermen are to have the government of the Town, he only holding the Court, which, by the Charter of James I., is now to be held before the Bailiffs and Aldermen with the assistance of the Steward. It should be observed that the Bailiffs, Aldermen and Burgesses were not incorporated till the Charter of James I, and the Constable is not a member of the Corporation created by that Charter.
The Constable of Cardiff being a Magistrate, and as such a judicial officer, cannot by Law appoint a general deputy. (fn. 13) It may be another question whether he could appoint a deputy to do any particular ministerial act. But I am of opinion that he could not appoint a deputy for the purpose of swearing in the officers of the Corporation, the Charter expressly requiring that the Aldermen shall take their oaths before the Constable, & saying nothing of a Deputy. And, whatever the usage may have been, I conceive that any Aldermen sworn in before any person but the Constable is not duly admitted into his office.
As it is stated to me that the Burgesses are desirous of throwing the Borough open, I should observe that it appears there were Burgesses in Cardiff as early as the 17th of Edward II.; and in none of the subsequent Charters is there any power given of enrolling, making or creating them. The consequence of which is, that the power of making them must now be the same as it was in the reign of Edward II.; which in all probability was, by inrolling the inhabitant householders in the Resiant Roll at the Leet, and swearing them to their allegiance there. If there are any documents of the Court Leet now in existence to prove that such was originally the mode of election, it seems to me to be still the proper legal course, notwithstanding the select body of the Corporation may have assumed to themselves any unauthorized power of admitting Freemen.
The election of the Aldermen being expressly given by the Charter to the Aldermen themselves, and that of the Capital Burgesses being so doubtful, there appears at present no mode of opening the Borough but by ascertaining who the Burgesses ought to be, or by claiming for the Burgesses at large the right of annually electing the two Bailiffs from the Aldermen; which it would appear ought to be done by the Aldermen and Burgesses at large, according to the provision in the Charter of Richard, Duke of Gloucester, and the clause in the Charter of Isabella, Countess of Worcester. As I believe the Bailiffs are the Returning Officers at Cardiff, this must, I conclude, be a material consideration.
HENRY ALWORTH MEREWETHER.
Chancery Lane.
June 5th, 1824.
Further Case. III.
So far as can be collected from memory of man and the Books and Minutes of the Corporation in the Town Clerk's Office, it appears to have been the custom for the Bailiffs for the time being to admit and swear in Burgesses at their pleasure, and to exact such sums for admission as they thought proper. Indeed it is said that at one time the Bailiffs would individually, and at all times and places, even in public houses, grant freedoms to any they pleased. This was corrected by the Common Council in 1762. By custom the son of every Freeman (if his father was a Freeman at the son's birth) is at the age of 21 entitled to his freedom. Marrying a Freeman's daughter, or serving apprenticeship to a Freeman entitles a resident to his freedom. Honorary freedoms are also granted. The Bailiffs and Steward are accustomed from time to time to hold Quarter Sessions for the Town, upon which occasions the Grand Jury present the boundaries of the Town, and the various nuisances, &c. In 1656 the following Presentment was made:—
"Cardiff Towne. Presentment of the Grand Jury of the Towne and lib'tie of Cardiff according to the Articles to them given in charge, made and delivered the eighth daie of ffebruary in the yeare of our Lord God 1656, at the Gurldhall of the said Towne, before Rice Davies and John ffenwell esquires, Bayliffs of the said Towne, upon their Oaths whose names are hereunto subscribed, that is to saie Roger Sheere, Alderman; John Wollvin and John Price, Common Attorneys of the said Towne; Nathaniell Wells; Rice Williams; John Hengott; George Evans; Lewis Jones the elder; Lewis Coxe; Morgan Jones; Giles Morgan; Edward Edwards; Cradock Wells; James Jones; Richard Waters; Rice Williams, "mercer, and Griffith Lewis (inter alia) intruders upon the lib'ties of the said Towne." (fn. 14)
And it has been the practice from that day to the present, whenever Quarter Sessions are held (which of late years is very seldom) so to present; but we have never seen any presentment of persons entitled to the freedom.
The first entry we find of the election of Burgesses is made in the Book of Proceedings of the Town Court, held every fortnight under the Charter of James; which also contains entries of the election of officers on Michaelmas Day. It is as follows:—
Cardiff Villa. In le Guildhall Ville pred' Quinto die Martij Anno Regn' D'ni R's et D'ne Regine Willi' et Marie dei gra' nunc Angl' &c. Primo Annoq' D'ni 1688. Cora' Benjamin Browne et Cradock Nowell Armigeris Ball' Vill' pred' sec'd'm Consuetud' Elecc'o' Burgen' ejusd'm Ville Emmanuel Jones Gen' tunc jurat' fuit in Burgen' Ville pred' et Solvit pro Lib'tate p'r man' &c. iijs. iiijd." (fn. 15)
The next was on 3 October 1689, and the fine was 20s.
In 1708 the following appears:—
"Att a Co[m]mon Councell held in the Guildhall this 22nd of March 1708. . . . "And whereas sev'all persons have been & may be hereafter admitted Burgesses of the sd Towne who are not or shall not be resident in the same Towne and may hereafter p'tend to be exempt from payment of Toll w[i]thin the said Towne to the great p'judice of the Inhabitants paying Scott and Lott, for preventing whereof It is Ordered that all such Out Burgesses or Honorary Burgesses who by themselves or their Servants shall insist upon the Im[m]munityes & Priviledges of Burgesses shall be lyable and charged with bearing & paying towards the reliefe of the Towne and other Charges incident to the said Towne."
"Court of Aldrmen. Novr 9th 1715. . . . Ordered yt all persons (who are not ffreemen) be Summoned to appear before the Bailiffs to Shew Cause why they exercise their Trades, not being free."
[Here follows the entry in the Town Book of the disfranchisement of Alderman Edward Herbert and Mr John Davies in 1736. See post.]
This is the first entry of the sort in the books in the Town Clerk's possession.
On 27 September 1745 there were seven admitted, who were all outdwellers.
1762. "Cardiff Town to wit. Att a Court of Common Councill held for the said Town of Cardiff aforesaid in the Council Chamber of the said Town the 22d day of December in the Year of Our lord 1762 to Consider of divers and sundry matters of and Concerning the said Town and for the Well Government of the said Town, We the Bailiffs and several Aldermen and Capital Burgesses duly Summoned and assembled in Councill as aforesaid being the Major part of the said Common Councell do hereby Unanimously Agree that Whereas it hath been usual and customary for One of the Bailiffs of the said Town to swear such persons Freemen or Burgesses of the said Town at such times or places as he thought proper And Whereas the Original intention of all Guildes or Communityes were that the Burgesses or ffreemen should be Admitted and Sworn into the said Guild in an open and publick manner It is therefore hereby unanimously Ordered and Ordained by the Common Councel assembled that from henceforth no person or persons shall be Admitted or Sworn a Burgess or Freeman of the said Town but such as shall be approved by the said Bailiffs of the said Town and by them sworn as such in the Town Hall of the said Town at some public Court of Record of the said Town held for the said Town hereby Ordaining that this Ordinance shall no ways impeach the right or validity of any Burgess or Freeman already sworn as such but hereby fully Confirming the same."
Since that time it appears that they have been admitted on Court days and before the two Bailiffs; and on the last Election for the Borough the Court adjourned to the day of Election, and kept it open by adjournments during the Election, for the purpose of admitting Burgesses entitled to their freedom. And it is stated by old Burgesses that this was the practice at former Elections.
In the above cited Town Book the Churchwardens' and Overseers' Accounts are kept for several years and audited. Also there are several entries on parish business, and it appears as if the Town was completely under the control of the Corporation.
The documents prior to 1688 are in the hands of the Marquess of Bute, who is the Lord of the Borough and also the Lord Lieutenant of the County of Glamorgan, and brother to one of the candidates for the Borough. The Bailiffs, who are under the Marquess' influence, have lately made the Lieutenant Colonel of the Militia and all the staff of the Militia Honorary Freemen.
Opinion.
A custom for the Bailiffs to admit and swear Burgesses at their pleasure I believe to be bad, if the Court could be induced to consider the question.
So also, if the subject was properly investigated, it would be found that it is not by any particular local custom that the sons of Freemen, or the husbands of Freemen's daughters, or apprentices are free, but it is by the general Law of the land.
The same investigation would establish that the admission and swearing of what are called Honorary Freemen, that is, persons not residing in the place, are illegal.
The Quarter Sessions, considering the matters presented by the Jury, will, I have no doubt, upon proper enquiry and accurate search, be found to be also the Court Leet; and the ancient title of the Court will, I imagine, be found to have been "Sessio Pacis et Curia Domini Regis." (fn. 16)
If the Sessions are not duly and regularly held, the Bailiffs should be compelled by Mandamus to hold them.
Though there may be no Presentment of any persons as entitled to their freedom, if there are any ancient records of the Borough or of the Court Leet, the Rolls of Resiants will probably be found to contain, when compared with the Parish Books, the names to the returns to Parliament, and other public documents of the same date, the names of all the inhabitants, and to include no non-residents.
As to the entries of 1688 & 1689, they were most probably at a Court Leet. It should, if possible, be ascertained whether Emmanuel Jones was before or after the time of his admission a householder in the Borough. (fn. 17)
I think the variation in the fine very important, as I have no doubt for the admission of strangers they might take what fine they thought proper in each case.
The entry of 1708 must, in whatever view it is taken, be an illegal act, and was no doubt one of those irregularities which occur too often in the proceedings of Corporations. It assumes the admission of non-resident Burgesses, which I believe to be illegal. This proceeding was about 17 or 18 years after the publication of Dr. Brady's book, which was written for the purpose of supporting the right of the select bodies and the nonresidents. This entry speaks of the prejudice of the inhabitants paying Scot and Lot. Why is their prejudice to be considered, unless they are the persons entitled to the benefit of the Corporation? And if the Out Burgesses are entitled to the priviledges of the place, why should they be obliged to bear the burthens of the place, to which, not residing there, they were not otherwise liable? And if they were not entitled to the priviledges of the place, how could the Corporation by such an Order give them those privileges? It seems therefore quite clear that neither in the one way nor in the other can this Order be legal. And on the whole I think it goes rather to negative the right of the Out Burgesses, than to affirm it.
I conceive that every inhabitant householder was entitled to exercise his trade in the place where he resided, and consequently that any regulation to restrain him from so doing was a regulation in restraint of trade, and void. I am therefore of opinion that the entry of 1715 must be supposed to apply to some new comers who had not been inrolled as inhabitants.
The causes of the disfranchisements in 1736 not being stated, it is impossible to express a decided opinion upon them. The Corporation have certainly as incident the power of disfranchising, but it must be for just and legal cause.
The admission of Outdwellers in 1745 I believe to be contrary to the Common Law. I see no power of admitting them given by any of the Charters; and I think no bye-law could properly give such a power, nor any usage sanction it.
The fee for marrying the daughter of a Freeman I believe to be illegal, as being in restraint of marriage. The claim of the wine I presume is clearly so, and would go a great way to show that the whole is irregular.
The entry of 1758 is only material to raise the inference that Burgess and Freeman were synonymous terms. I think they meant the inhabitant householders; otherwise this forfeiture might attach upon an inhabitant keeping an open shop in his own house, which would be in direct restraint of trade.
The entry in 1762 seems to be consistent with the Common Law. The persons to be sworn in were certainly to be in one sense subject to the approval of the Bailiffs; because no person outlawed, convicted of any infamous crime, minors, lunatics or villains ought to be admitted. And these facts were to be determined upon by the Bailiff, under his oath of office and his general responsibility, not arbitrarily. Which is apparent on this ground, if not on any other, namely, that the Order is general; and yet it is acknowledged that the sons of Freemen, apprentices &c. have a right to be admitted. Even their right, however, must be subject to the approval of the Bailiff with respect to the particulars mentioned before; which approval must be regulated by a sound discretion, as is apparently recognized by the Order itself, which, requiring publicity, allows that the publick have an interest in the due exercise of the judgment or approval of the Bailiffs.
If the documents in the hands of the Marquis of Bute are the records of the Sessions of the Peace, or of the Court Leet, any inhabitant of the Town, under the jurisdiction of those Courts, is entitled to the inspection of them, and may enforce the right by Mandamus. Or, if they are documents belonging to the Corporation, any Corporator is entitled to see them, and may enforce his right in the same way.
After perusing all the Charters, I am satisfied that the legal Burgesses of Cardiff are the inhabitant householders, enrolled and sworn. There can be no reasonable doubt that they were the Burgesses to whom the Charter of William La Zouche, Lord of Glamorgan, was granted. And I find nothing in the subsequent Charters which directs that any other class of persons should be Burgesses, or that any of the inhabitant householders should be excluded from being so. The Charter of the Earl of Worcester describes the Burgesses as residing within the Borough, and contradistinguishes them from strangers; while the Charter of the Earl of Warwick contradistinguishes them from persons dwelling without the Town. The Charters of the Jameses are expressed to be granted unto the Burgesses and inhabitants, which some have supposed to imply that these two classes were distinct. But, from an inspection of a variety of old Charters, I am satisfied that it only means "Burgesses inhabiting." [Several cases are quoted in support of this construction.]
If the late admission of Burgesses was not at a public Court of Record, I am of opinion a Rule Nisi for a Quo Warranto against them would be granted. If they were admitted at such a Court, still, if they were admitted corruptly, for sinister purposes, I think the Court would grant a criminal information against the Bailiff for having so admitted them. If no corrupt motive can be made out, still, if these Burgesses have been admitted in such number and under such circumstances as materially to affect the rights of the other Burgesses, then, on the application of one of the present Burgesses, I think the Court ought to grant a Quo Warranto against the Bailiff, though I should add that no such has been granted of late years.
I can only say that an application to the Court, stating the circumstances under which those individuals were admitted, ought in my opinion to induce the Court to grant either a Quo Warranto to try their titles, or a Mandamus to the Corporation to amove them. One or the other should be granted, or the subject is left without a remedy and the prerogative of the Crown set at nought by its Charters being perverted with impunity.
[Counsel concludes by recommending certain legal proceedings of a parliamentary and electoral nature, with a view to annulling the privileges of the nonresident Burgesses,]
HENRY ALWORTH MEREWETHER,
Chancery Lane,
October 14th, 1824.
Case IV.
Rehearses the various Land and Sea Tolls and the freehold properties possessed by the Corporation. "The Corporation also take upon themselves the repairs of the public Quay, also appoint Water Bailiffs or Conservators for superintending the navigation of the Port; and they at the expence of the Corporation repair and scour the river, and place buoys down, for the more commodious and safe navigation; and formerly they had a very extensive wall and dyke surrounding the Town to keep in repair. (fn. 18)
All the Sworn Burgesses are exempt from the payment of any of the above impositions or dues. It has hitherto been so managed that there are no funds in hand, as the whole revenue is laid out in repairs &c. of the before mentioned works and in the general improvement of the Town. (fn. 19)
There are two Common Attorneys appointed by the Corporation annually (fn. 20); their accounts are settled by the Bailiffs, and the expenditure of the revenue is under the controul of the Common Council.
Lately, on a Court day before the two Bailiffs, many honorary and nonresident Burgesses were among those admitted. They are very extensive farmers, and are in the habit of sending their corn to Cardiff for sale; and they now claim an exemption from paying toll, as being admitted and sworn Freemen; so that the revenues of the Corporation this year and hereafter will be much injured.
The several persons lately sworn Freemen or Burgesses of Cardiff were sworn at a Court held by the two Bailiffs; but the Steward was not present, which by the Charter of James II. he ought to have been. It is now contended that they were not sworn at a legal Court, as that Charter expressly directs that the Steward shall be one to hold the Court.
It is anticipated the Bailiffs will contend that the Charter of King James II. was granted just before the rebellion, and that it was never acted upon, and that the Corporation do not consider they are bound by it; for that the Corporation never held the Fair of the 17th of April, and the Steward never attended any of the Courts of Record, and that the Deputy Constable of the Castle never acted as a Justice of the Peace. These three points (excepting the Crown's reservation of the right to displace the officers of the Corporation) are the only difference between the Charters of James I. and James II.
In the memory of man, the only fairs ever held in the Borough of Cardiff are those of 30 June, 19 September and 30 November, on which days there is always a Court of Piepowder holden. There is also a High Market the first Wednesday in April, but no Court of Piepowder therewith.
The first mention of the fortnightly Court occurs in the Charter of Hugh le Despenser, which grants that the Constable shall hold a Hundred Court every fortnight and pleas called Piepowder every day when it shall be necessary. The Charter of James I. directs the holding of the fortnightly Court before the Bailiffs.
The oldest book in the Town Clerk's Office begins in the 1st year of William and Mary, 21 February 1688 [9?] when Benjamin Brown and Cradock Nowell, two of the Aldermen named in King James the Second's Charter, were Bailiffs. On 29 Septr 1689 Jonathan Jones and William Richards, two other Aldermen named in the same Charter, were elected Bailiffs. From 1689 to the present day it appears that the fortnight Courts were held as frequently before one Bailiff as before both Bailiffs; but it does not seem that the Steward ever was present, as no mention is made of his name in the style of the Court. But in 1759 there is an Order of Common Council to oust William Powell esqe from the office of Steward, for neglect of duty. [This power of amoval was given to the Bailiffs and Aldermen by the Charter of James I. as well as by that of James II. H. A. M.]
No mention is made of a Deputy Constable in any Charter but that of King James II, (fn. 21) and we find the Corporation adopt that Charter in the following instances:—
On 24 January 1759 the Bailiffs and other ministerial officers of the Corporation were sworn into office before a Deputy Constable of the Castle. And on 31 Decr 1763, 17 Feby 1765, 29 Septr 1814 and 4 May 1818, Thomas Morgan, Alderman, was sworn into his office before a Deputy Constable, who also administered to him the Oaths of Allegiance and Abjuration; and this Alderman was admitted by a Mandamus from the Court of King's Bench, which runs as follows:—
1818. "Of Easter Term in the fifty eighth year of King George the Third. Cardiff. George the Third by the grace of God of the United Kingdom of Great Britain and Ireland King, Defender of the Faith. To the Constable (fn. 22) of the Castle of Cardiff in our County of Glamorgan. Greeting. Whereas Thomas Morgan the elder, one of the Burgesses of the Town of Cardiff in our said County of Glamorgan, hath been duly elected into the place and office of one of the Aldermen of the said Town of Cardiff, and ought by you to be sworn into the said place and office. And whereas the said Thomas Morgan, after such his election into the said place and office, did duly tender and present himself before you the said Constable in order to be by you sworn into the said place and office, and did then and there in due manner require and demand of you to be sworn into the said place and office; yet you the said Constable of the said Castle of Cardiff, well knowing the premises but having no regard for the duty of your office in that behalf, did then and there without any reasonable cause absolutely refuse and yet do absolutely refuse to swear the said Thomas Morgan into the said place and office of one of the Aldermen of the said Town of Cardiff, in manifest contempt of Us, and to the great damage and grievance of the said Thomas Morgan, as We have been informed from his Complaint made to Us in that behalf. We therefore, being willing that due and speedy Justice may be done to the said Thomas Morgan in this behalf, as it is reasonable, do peremptorily Command you the said Constable of the said Castle of Cardiff, firmly enjoining you that, immediately after the receipt of this Writ, you do swear the said Thomas Morgan into the said place and office of one of the Aldermen of the said Town of Cardiff, and admit him to all the liberties, privileges, franchises, preeminences and advantages to the said place and office belonging and appertaining. And how you shall execute this Writ make known to Us at Westminster on Friday next after the morrow of the Holy Trinity, then returning to Us this Our Writ. And this you are not to omit on peril that may fall thereof. Witness, Edward, Lord Ellenborough, at Westminster the twenty ninth day of April in the fifty eighth year of Our reign. By the Court. Lushington. By Rule of Court."
This Mandamus was served on the Constable himself.
[Several other instances are cited of Bailiffs, Aldermen and other officers sworn in before the Deputy Constable, down to 1823.]
The following is stated with a view to draw Counsel's attention to the manner in which the "Burgesses," "men and tenants," "whatsoever inhabitants of the Towns of Cardiff, Cowbridge &c." are to entitle themselves to the benefits granted them by the several Charters. In order to meet any argument of the Corporation's against admitting the inhabitants generally to partake of the grant of exemption from toll throughout the Kingdom (an exemption which many of the sworn Burgesses, being graziers and horse dealers, avail themselves of in many parts of England and Wales when attending fairs and buying cattle &c.), it is to be observed that the inhabitants claiming the privilege do not contend that they are of the Corporate Body to enjoy any of the rights exclusively granted to such Body, such as the piece of land given them to build upon, the tolls taken within the Town, the lands purchased by the Corporation, &c.; but they claim exemption from the payment of toll, murrage &c. in all other parts of England, Ireland and Wales, and contend that they ought to have some document to show that they are inhabitants of the Borough of Cardiff, so as to entitle them.
The first mention of this exemption is in the Charter of Hugh le Despenser, which confines it to the Burgesses of Cardiff.
By the Charter of King Edward II. it is extended to the Burgesses and other men and tenants of Cardiff, Usk and other towns; which is confirmed by the Charters of King Edward III. and King Henry IV.
By that of King Henry VI. it is extended to the Burgesses, men and tenants whatsoever, inhabitants of the Towns of Cardiff, Cowbridge, Neath and Kenfig, and their successors; which is confirmed by Charter of King Edward IV.
The Charter of Richard, Duke of Gloucester, confirms to the Bailiffs, Burgesses and inhabitants of the said Town all liberties &c. anciently enjoyed by them; and by this grant the Burgesses and inhabitants are treated as the persons in whom the election of Bailiffs is vested.
The Charter of James I. recites that the Burgesses and inhabtants by divers several names have enjoyed divers liberties &c. A Body Corporate is thereby created, & it is further granted that the Burgesses shall enjoy all customs, privileges, franchises, liberties, exemptions, &c. which they had possessed theretofore. This is confirmed by James II.
It is therefore submitted that the inhabitants of Cardiff are entitled to this exemption; but how they are to be placed in a situation to enjoy it, seems the question.
Opinion.
The inhabitants cannot claim this exemption but as Burgesses of Cardiff. But I have no doubt that all the inhabitants, sworn to the oath of allegiance in the Court Leet and enrolled there as inhabitants, are thereby Burgesses and members of the Corporation, which is an incorporation of the inhabitants.
I am of opinion that the Charter of James II. was void in Law, (fn. 23) and I think it very doubtful whether it was ever duly accepted, or at all acted upon, till long after the Revolution. I think, therefore, it is a desperate attempt to set up that Charter.
The objection merely on the ground of the absence of the Steward from the Court of Record which swore in the Burgesses is not fit to be relied on.
Every bonâ fide inhabitant householder of free condition is, in my opinion, entitled to be sworn a Burgess; and, as villenage is now abolished, in fact every inhabitant householder is so entitled.
HENRY ALWORTH MEREWETHER,
Chancery Lane,
Jany. 18th, 1825.
21 January 1825. Mr John Wood writes to his London Agent that, since receiving the above Opinion, he has found in the Corporation Books "an entry of all Charters and papers being delivered up from the Bailiffs going out of office, to their successors, in which the Charter of James the Second is mentioned. The first of these entries was made in 1691, and they are continued almost annually till 1712; after which no entries appear, and the Charter is not now among the Corporation papers."
Mr. Merewether thereupon wrote:—" This fact alters my "Opinion, of course, as to the Charter having been accepted, as it raises a strong inference that it was accepted. But I am still strongly inclined to think that the Charter was illegal and void, though I do not think this materially affects the present question.
"H. A. MEREWETHER,
"January 24th, 1825."
Case V.
William Stanley has carried on business in the Borough of Cardiff as a Hatter, for these last nine years, and has during that period sold goods in the public Market; he himself, as well as all others, erecting every market day their own standing in the street. About a year and a half ago ["Xm[m]mas 1823"] a person calling himself Collector of the Corporation Tolls for the first time demanded 4d. for Corporation dues. Stanley having never paid this before or ever heard of it, refused. He refused also on the following days, on which the same was demanded. And on each of such successive dates the Collector and Constables seized one of his hats.
A Toll of 1d. is admitted to have been paid from time immemorial to the Serjeant at Mace, and no other; and the oldest persons in the Town, who have stood the Market between 30 and 40 years last past, never paid any other toll but 1d., nor was any other ever demanded of them. The demand of 4d. (and 3d. and 2d. of some persons) was made for the first time in September 1823, in consequence, it is supposed, of the following circumstances:
A Mr. Vachell has built a Market House in Cardiff, and many persons have left the old standings in the street (which they always erected themselves) and occupied those erected by Mr. Vachell in his Market House. The toll of 4d. was soon for the first time demanded in the street also.
The King's Charter to Hugh le Despenser grants "that he and his heirs and their Burgesses & other men and tenants of Cardiff" shall be free for all their things and goods, to wit as well merchandizes as other things, from (inter alia) toll, stallage and pickage, throughout England &c. (the customs of wool, leather, woolfells and wines only excepted).
Mr. Stanley, although not a Burgess, considers that as an inhabitant of Cardiff, paying all taxes and manufacturing his goods in the Town, he comes within the meaning of the Charter.
Opinion.
1323. Edward the Second's Charter to Hugh le Despenser the younger beyond all question makes the goods and merchandizes, not only of the Burgesses but also of the other men and tenants of Cardiff and the other places mentioned in it, free from toll, stallage and pickage.
In 1340 Hugh le Despenser granted to the Burgesses of Cardiff that they and their heirs should be discharged and free (inter alia) from toll and pickage; and the same Charter grants that the Burgesses shall be "free by their liberties to sell all such things they have for sale to any person or persons and at such times they please without any impediment." There can be no doubt this must be construed as granted equally to the "other men and tenants."
Thomas le Despenser, in a Charter reciting those of Hugh and Edward le Despenser, grants also to the Burgesses and their successors that pleas of Forestalling and Homesoken should be pleaded before the Constable and determined in the Hundred Court. Like the others, this Charter must be construed as granted equally to the other men and tenants.
Henry IV. confirmed the Charter of Edward II. & Edward III. to the "Burgesses and men" of the Town of Cardiff. The term "men" I conceive extends to all the inhabitants.
Isabella, Countess of Worcester, granted to the Burgesses & their heirs and successors certain additional privileges, some of which treat the Burgesses as distinct from strangers. I think that the fair inference from this Charter is that it was intended to apply to all the inhabitants of the place.
The Charter of Richard Neville, Earl of Warwick, is still more decisive; for it grants to the "Burgesses and resiants" the privilege (inter alia) that if any person shall be willing to come to the Town to stay and reside there, he shall be subject only to the local jurisdiction. The term Resiant is appropriate to the suitors of the Court Leet, who are all the inhabitants of the place; and none can be exempt from that suit.
King Henry VI. confirms the prior Charters to "whatsoever Burgesses, men and tenants resiants in the Towns of Cardiff, Cowbridge," &c.
Elizabeth's confirmation is nominally to the Mayor and Bailiffs. But this should by necessary intendment include all the inhabitants; and this Charter is a strong instance to show that such instruments cannot be construed by their strict words.
This construction of the ancient Charters is supported by the recital of that of James I., that the "Burgesses and inhabitants" had immemorially enjoyed divers liberties, customs &c.; which is a distant recognition of the right of the inhabitants to enjoy at least some of the privileges of the place. And the general clause of confirmation at the close of that Charter confirms all the privileges which had been previously enjoyed, in the fullest language and without one word to show any intention either to curtail the privileges or the number of the persons who were to enjoy them.
I therefore think that not only the Burgesses but all the inhabitants are included in the grant of exemption from tolls.
Note.—This does not conclude the Opinion, as the book finishes in two more leaves, which are missing, and one at least of which bore writing, down to the bottom of the second side. The book is a quarto paper volume, bound in boards. It was purchased in 1895 by the Records Committee of the Cardiff County Council, for six guineas, of Mr. Alcwyn Evans, Carmarthen; who had bought it at a sale of the effects of the late Edward Priest Richards, formerly Town Clerk of Cardiff.