Charters, Size, and Status

The municipal corporation came to be the legal form through which local self-government of cities and large towns was realized, its legal basis stemming from the Municipal Corporations Act 1835. Few new charters had been granted in the eighteenth century, and the Act created no new corporations for populous places. It listed 178 incorporated boroughs sufficiently distinguished by population size or continuing parliamentary representation to be worth reform, omitting a further 70 or 80 investigated by the commissioners, either as too trivial for modernization, or irrelevant to its purposes, or simply because they were overlooked.¹ The corporation of the City of London was the only substantial body to evade reform, the commissioners’ separate report for it being delayed until after the reforming moment had passed.²

The Act’s new regime covered about 60 per cent of the towns outside London listed as significant by modern urban historians, increasing to comfortably over 70 per cent by 1851 as towns took advantage of the Act’s new procedure for petitioning (p.426) the Crown for advancement to corporate status.³By 1854 the list of new corporations had grown to 26, all but four of them northern or midland industrial centres of rapid recent growth.⁴ By 1888, when the Local Government Act made significant changes to municipal boroughs, it had become 105.⁵ But 24 of that 105 were small, even tiny, ancient boroughs, their corporations left unreformed in 1835 but belatedly allowed into the fold consequent on the Municipal Corporations Act 1883, and a further six were small places that had taken a similar restorative step earlier.⁶ Subtracting these leaves some 75 major towns or cities which between 1835 and 1888 had attained the highest status available to them.

If population size is used as a rough indicator of a town or city’s significance, then borough status correlates reasonably well. The 1891 census shows that 112 of the 141 urban areas with a population exceeding 25,000 were chartered, very nearly 80 per cent.⁷ Many of the unincorporated settlements in that size bracket were situated uncomfortably close to a neighbouring giant, well on their way to being swallowed up—places such as Tottenham, Handsworth, Walton-on-the Hill, and Moss Side. At the same time incorporation had a social cachet to it that must have made it seem quite proper that the aspiring new growth centre of Southend-on-Sea should seek, and even be granted, the status that brought it aldermen and his worship the mayor, while the South Wales growth area of Ystradyfodwg (as the Rhondda was then known), more than six times its size, should not. Southend was just one of 30 new boroughs created between 1888 and 1902, places taking their first step on the road to the coveted status of county borough that would bring them autonomy from the newly formed county councils.⁸

(p.427) Inherited Legal Attributes

The post-1835 municipal corporation was a hybrid of the prerogative form that preceded it and its eighteenth-century alternative, the statutory local commission. The prerogative form itself was pregnant with what turned out to be unrealized possibilities. It gave continuing legal personality, an inherent power to make regulatory byelaws, and full property-owning capacity. Those powers and attributes were essentially common law matters, for late eighteenth-century law was clear: charters could curtail corporations’ common law powers but could not extend them, no matter how wide their purported grant.⁹ From that common law foundation an organic conception of local government entities could have developed, had there been the incentive. Corporations could then have developed their byelaws in step with the changing needs of their towns simply by virtue of their common law powers. Judges would have become the arbiters of validity after the event, upholding those ‘reasonable’ byelaws they thought properly fell within the changing ambit of municipal government allowed to corporations, just as they had long done with such well-established municipal functions as the regulation of local trade.¹⁰ Where finance was needed for town improvements the critical step would have been validation of the power to levy rates. Historians do point to corporations rating in the early eighteenth century, though they are rarely explicit about its legal basis, which to modern eyes seems obscure.¹¹ If claims to levy rates without statutory authority had become widespread their resolution would have been a difficult matter, because for a charter to have empowered a rate on occupiers would have infringed the important post-revolution principle that the Crown cannot tax without parliamentary consent, charters owing their legal force to the prerogative and hence subject to that limitation.¹²

However, these possibilities latent in corporations’ common law personality were stillborn, perhaps for two reasons. First, eighteenth-century municipal (p.428) corporations drifted into oligarchy. In many parliamentary boroughs they had become devices for securing party or factional control of the House of Commons, entailing a serious loss of local mana. Secondly, local elites had found superior solutions to local problems through Parliament. Statute was superior because Parliament’s sovereignty was boundless, undoubted, and pre-emptive. General Acts of Parliament confirmed for towns with their own exclusive quarter sessions the power to levy a rate ‘in the nature of a county rate’ covering such functions as the maintenance of gaols, houses of correction, and some bridges, and sundry purposes ancillary to the Poor Law.¹³ Local Acts of Parliament by their hundreds gave new powers, stipulated new procedures, and delineated new boundaries.¹⁴ They too empowered the levying of rates, and enabled rates to be mortgaged to create a capital fund for development. They created new local offences and the procedures for their enforcement, obviating by-laws and avoiding their uncertainties: no thatched roofs, no projections over the highway, no football in the street, no beating carpets in the street after 8 a.m.…and so on by unbroken succession into the clauses Acts of 1847.¹⁵Where once a corporation by-law might have required householders to light their street frontages with lanterns on dark evenings, now statutory regulation empowered the provision of rates-funded gas lamps.¹⁶

In towns where local opinion thought it appropriate the new powers were conferred on the municipal corporation. Much more usually local Acts gave power to ad hoc commissioners, though the mayor was often a commissioner ex officio, the Acts were often promoted by the corporation or with their assistance, and sometimes the commissioners were simply the councilmen in different guise.¹⁷ Often, however, a portion of the commissioners was elected, or the status was open to any propertied resident.¹⁸ Local Acts were not, as lawyers have sometimes been tempted to see them, weak or experimental substitutes for general legislation. They were modernized equivalents of royal charters, negotiated among local property owners and rooted in their consent.

(p.429) Corporations’ general and inherent power to make by-laws was thus marginalized, though never entirely superseded. The Municipal Corporations Act 1835 did preserve an apparently unlimited power to make byelaws for the ‘good rule and government of the borough, and for prevention and suppression of all…nuisances …’.¹⁹ That led the Webbs to believe that corporations thereby acquired general powers, perhaps overlooking that the maximum penalty authorized by the section was just £5.²⁰ But the section was no more than a statutory variant of the common law or charter form, to be interpreted incrementally by the judges. Their instinct always was to treat the general words as descriptive rather than empowering, and to require a ‘nuisance’ or ‘police’ justification before holding a byelaw valid.²¹ The 1835 Act did not herald a turning back to a common law conception of a corporation as a general governing entity. Powers and functions would continue to derive from Parliament, by general or local statute.²²

Legal Attributes From 1835

As is well known the 1835 Act’s immediate genesis was primarily political. Its aim was to break the mainly Tory, Anglican, oligarchic control of corporations so as to redistribute their patronage and, particularly, reduce their influence in parliamentary elections. That was a matter of continuing concern to the Whigs, given the relatively narrow reform of the parliamentary franchise in 1832 and the importance of local officials in the conduct of elections. The decision having been made, the Whig government appointed a royal commission to ‘collect information respecting the defects in [the] constitution’ of corporations, and then sought to legislate on the basis of its findings, only to be forced into compromise by Tory resistance in the House of Lords.²³ In the result there were to (p.430) be elected councillors for the corporations listed in the Act, who in turn would elect a mayor and aldermen. There was to be a ward system for boroughs with a population exceeding 6,000. The reformed corporations were given a statutory internal structure, a new property regime, and a new duty to police their area.

The franchise was confined to men who were householders resident within seven miles of the borough and who had paid the poor rate for 2½ years, excluding occupiers of mere tenements. How that operated in any particular borough would turn on its practice of rating or not rating small cottages, and on whether the local vestries could require landlords to pay in place of tenant. In places practising such ‘compounding’ the landlord’s name would appear in the rate book, and the tenant would be disfranchised. In practice it was a franchise empowering the rate-paying middle class rather than the lower orders, men rather than women (an unusual feature for a local franchise at that time). Given those limitations, however, it was egalitarian, in that unlike the more widespread of the other local ratepayer and property-owner franchises created in the first half of the century it did not give burgesses multiple votes in proportion to the rateable value of their property.²⁴

The franchise broadened after an adoptive Act of 1850 brought in many compounding tenants, the process seemingly being completed when the municipal franchise was extended to them all in 1858.²⁵That settlement was disrupted, however, by the treatment of compounding in the 1867 Reform Act and not finally put to rest until 1878.²⁶ Female ratepayers were enfranchised in 1869 by an amendment slipped through without fanfare, though the Queen’s Bench rather spoilt the effect by holding that married women still could not qualify, being ineligible to hold landed property at common law.²⁷ But for all these extensions, the theory of the franchise remained that it should be held by ratepayers only, even after the third Reform Act had abandoned that principle for parliamentary elections. Even the further shift towards democracy in 1888, by inclusion of the occupiers of premises worth £10 a year, excluded some parliamentary electors.²⁸

(p.431) The new councils did not take over all that the unreformed corporations had enjoyed, far from it. On Tory insistence they were not to have judicial functions. Corporations lost their power of nomination or appointment to the borough bench, that being henceforward vested solely in the Crown—save that the mayor remained as a magistrate. Boroughs with (or wanting) a separate quarter sessions must have a Crown-appointed Recorder.

The Act also significantly curtailed corporations’ common law capacities. The first significant reduction was that they lost control of borough charities.²⁹ This too was a Tory amendment forced on the Whigs, whose initial preference had been for the elected councils to choose trustees for borough charities each year.³⁰ Facing criticism that that would perpetuate political manipulation of charitable distributions, the Whigs then proposed a form of election designed to avoid a simple political replication of council elections: burgesses would elect but could cast only half as many votes as there were places to be filled.³¹ Either proposal would have recognized the organic link between a corporation and its charities, many of which had been under corporation control for a century or more, some having always been of that character, others having been transferred when attrition of private trustees threatened a charity’s survival. Recognizing that link might have led to substantive changes to the law, to develop a separate category of publicly administered local charities. There was, however, no incentive to look behind the condemnations of the municipal corporations commissioners and the reports of the charity commissioners on which they relied. The charity commissioners’ role was to treat the law of charity as a given and as a constant, investigating charities to see that they measured up to its requirements, not whether the law of charity measured up to the requirements of the populations it served.³² Nor were the municipal corporations commissioners interested in mitigating the ‘defects’ and ‘abuses’ they found.

Yet what the commissioners saw as diversion of charitable funds to unauthorized purposes could as well have been seen as reasonable municipal management in changing times. To pay ancient small dole charities producing, say, £5 a year into the poor’s rate might well have been the best use for them, unlawful though it was. To sell the site of a derelict almshouse and use the proceeds for (p.432) some similar purpose might benefit all concerned, though it would be unlawful because in their charitable capacity the trustees had no power to sell, even though they would have had if they had held the land in their corporate capacity. And if a school in a borough turned out to have been over-endowed, and its trustees were the mayor and so on, it is not self-evident that an expensive Chancery-initiated cy-près scheme for the surplus would be either more useful or more in accordance with the founders’ intentions than an informal borough-initiated ‘diversion’ for other municipal purposes.³³ Similarly, it was common for corporations to pay charitable income into their general funds, but make compensatory payments out—perhaps not every year, but then perhaps of a greater amount in some years.

The charity commissioners were clear that such distributions could not mitigate the breach of trust, and that rather than being compensation they should be seen as voluntary donations. Lord Brougham, important in establishing both sets of commissioners, agreed, holding judicially that even if a corporation, after mixing charitable funds, spent them all on public purposes, without personal benefit, it was still a serious breach. Though ‘it might relieve them from moral imputation, [it] could not exculpate them, in the eye of the law, from the charge of abusing their trust’.³⁴ Liability was strict, not excused by reasonableness or good faith. ‘Charity’ thus remained homogenous, to be administered by trustees deemed to be blinkered to any wider sense of responsibility. The only goal the Whigs had was to eradicate the use of charitable expenditure for political ends, of which there was considerable evidence.³⁵

So Lord Lyndhurst’s amendment to the Municipal Corporation bill was nicely calculated: the existing (mostly Tory) trustees should remain in office until the general measure of reform of charities administration promised by Lord Brougham should have been considered and carried. If no such reform was carried, the existing trustees should go out of office on 1 August 1836, to be replaced by whomever the Lord Chancellor should appoint—which is what happened.³⁶ The Chancellor’s power was delegated to the Chancery Masters, whose discretion (p.433) was usually unchallengeable, whose proceedings went unreported, and whose initial decisions were thought to be obviously politically partisan.³⁷ At least sometimes Masters appointed new councillors as the first set of trustees after 1836, but those appointees stayed in office whatever subsequently became of the composition of the borough council. The council did not even have standing to propose new trustees to fill vacancies—not that there was anyway a principle that the original number of trustees should be kept up.

The organic link between corporations and what had been ‘their’ charities was thus broken, one result being that the new representative councils lost the management of ancient borough schools. Dealings a century or more old were revisited and found to have been unlawful. Litigation, local Acts of Parliament, and judicially brokered settlements completed the separation.³⁸ When, in 1853, a new Charity Commission was invented with power to propose schemes for charitable consolidation and rationalization, no different provision was made for corporation charities.

Nor could municipal corporations be as free with their own property after 1835 as they had been before. At common law municipal corporations were legal persons able to own property as they wished, subject only to the need for a licence in mortmain to hold land. They could mortgage, lease, or sell their corporate estate. They were free to spend their income as they saw fit. Doncaster spent £20,000 on its racecourse to generate further income, and lent extensively to turnpike trustees to improve local roads. Kidderminster mortgaged its market site and future tolls to finance market redevelopment. Carlisle put £1300 into shares in the local canal company and subscribed for £1000-worth of shares in the Newcastle to Carlisle railway, not, it explained, as a profitable speculation but to benefit the city, just as Lynn had spent £400 on shares in a local bridge.³⁹ For these and the scores of similar instances recorded by the municipal corporation commissioners in 1835 no statutory authorization had been needed.⁴⁰ For radicals and for (p.434) the commissioners the independence that property brought was a problem. As the commissioners complained

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 public revenue, and the credit to which the Corporation, in such cases, generally considers itself entitled, is not that of judicious administrators, but of liberal benefactors.⁴¹

Lord Eldon had ruled that municipal corporations did not hold their property on trust. ‘In all corporations,’ he said, ‘there is somewhere vested an absolute, uncontrollable, power and discretion, without appeal’, with the consequence that (the mainly Tory) corporations might lawfully spend their resources for the benefit of their political supporters.⁴² By contrast the commissioners condemned as erroneous the ‘strongly rooted opinion that the property of the corporations is held in trust solely for the benefit of the corporate body only, distinguishing that body from the community with which it is locally connected’.⁴³ From that premise careless management and extravagant expenditure became a ‘defect’ of proper public concern, even where the corporation had not succumbed to ‘the opportunity afforded to them of obliging members of their own body, or the friends and relations of such members’, and even when uninfluenced by ‘party and sectarian purposes’.⁴⁴ Indeed some such notion as a public trust was essential to explain why subjecting corporations to the direction of elected councils would not sufficiently remedy the abuses the commissioners found.⁴⁵

So the reformed boroughs with their elected councils were not to have the same freedom to deal with borough property that their oligarchic predecessors had enjoyed. Instead the 1835 Act and its amendments over the next two years limited their powers and subordinated them to an element of central control.⁴⁶ Sale or mortgage of any part of the corporate estate would be lawful now only with Treasury approval and after public advertisement in the borough. The terms (p.435) and maximum duration of leases were stipulated, subject again to variation only with Treasury consent. Advowsons held by corporations before the 1835 Act were to be sold, an important element in facilitating Dissenters’ membership of borough councils. But the destination of the proceeds was not entrusted to the new councils: they were to be invested in government stock and the income carried to the borough’s general account, renamed by the statute ‘the borough fund’.

All the borough’s income was to be paid into the borough fund. Expenditure from it was to go first on paying pre-1835 debts, then on the purposes of the 1835 Act itself—policing, especially, which was the major function expressly designated for councils, plus the costs of running elections, for example.⁴⁷Councils could levy a rate for these purposes, should the corporation’s income from its property be insufficient. Only if the borough fund produced a surplus after meeting these expenses without a rate having to be levied could the council spend the income for ‘the public benefit of the inhabitants and the improvement of the Borough’—and not only ‘could’, but according to section 92 ‘shall’. That enacted the commission’s broad notion of the nature of borough property.

In 1837 Lord Cottenham ruled that the structure of section 92 and its words of general purpose were such that ‘in the hands of the new council the capital was unalienable, and the whole income was subject to certain public trusts’.⁴⁸ In the first cases Chancery judges allowed new councils to recover corporate property spirited away by their predecessors in the period between the Act’s passing and the new councils’ election.⁴⁹ But the reasoning entailed a litigable trust relationship between a council and its individual ratepayers that not only applied to the portion of the borough fund comprised of income from corporate property but extended also to that raised from levying rates.⁵⁰ It made no difference that these modern councils were chosen by a representative electorate, nor that council accounts were subject to audit by independent and elected auditors, nor that the Acts provided for appeals against rates, nor that they contained various explicit remedies that might plausibly be supposed to be exclusive, though all these points were argued. In the eyes of nearly all Chancery judges then and since, a private remedy for misuse of the fund was needed and none was as effective as Chancery’s full jurisdiction to prevent or redress breach of trust, with its wide range of orders and declarations. Corporations were thus assimilated to statutory commissioners, whose rates funds had already been subjected to the (p.436) same trusts analysis by Lord Eldon, in a case which counsel introduced as by far the most important he had known since beginning in Chancery practice.⁵¹

So even after a council had met its statutory responsibilities its spending decisions could be challenged at law, in Chancery based on a trusts analysis of section 92, or from 1837 in the Queen’s Bench bycertiorari, made possible by a rare statutory extension of that writ.⁵² To be lawful, expenditure of a borough’s surplus had to be for ‘the public benefit of the inhabitants and the improvement of the Borough’, and it is probable that judges always considered themselves the arbiter of that standard, despite some early dicta suggesting that the words be treated as saving all that would have been lawful before the Act.⁵³ Soon partisan expenditure of the sort Lord Eldon had previously found to be beyond judicial control was held unlawful.⁵⁴ In the next generation expenditure on conspicuous display features in the law reports—to be disallowed, except when it was associated with royalty.⁵⁵ By the end of the century serious policy choices were in issue. In one case Lord Shand indicated that he would not think it lawful for a council to spend a borough fund surplus on taking sides in legal contests between the police and brewers over public house licensing, in another Romer J. held that payment towards a university college’s rent was not a public benefit.⁵⁶

All this cramped boroughs’ inherent spheres of activity and marked the freedom they had lost. But courts were careful to resist the argument that a surplus could be spent only on objects positively authorized by statute, so assimilation with statutory commissioners was not complete.⁵⁷ Moreover, with skill a wealthy (p.437) borough could preserve its surplus for such extra-statutory purposes even as it took on new functions. It could word its local acts to direct new developments to be funded out of a separate account—usually an ‘improvement rate’—rather than out of the borough fund. This was a strategy employed by Newcastle, for example.⁵⁸ On the other hand, public general Acts could decree that specific new functions should be charged to the borough fund, and commonly did.⁵⁹

Becoming the Dominant Form

In the result municipal corporations became less like private legal persons and more like statutory commissioners, but with a robust combination of a continuing legal personality and a statutory, representative, constitution. Policing powers were conferred by the 1835 Act, which terminated the watching and corresponding rating powers of local statutory commissioners in the scheduled boroughs. But commissioners’ other powers were unaffected. Commissioners might still be more like a town government than the new borough councils were. The 1835 Act allowed commissioners to transfer their statutory powers to corporations by agreement, but after ten years fewer than a quarter had done so, and commissioners remained in every town that had had them before 1835.⁶⁰ Rivalry continued, sometimes with both institutions increasing their powers by acquiring new local Acts, though Parliament’s preference became increasingly clear as it granted some individual councils comprehensive new improvement Acts that ended the authority of commissioners within their boroughs.⁶¹

When the issue of the public health of towns came to a head in the 1840s, Tory and Whig instincts diverged. Lord Lincoln’s bill for the Tories in 1845 would have introduced town commissioners very much under central executive control even though elected by ratepayers. Borough councils would be reduced to sending nominees to afforce this board of commissioners, as would statutory commissioners in towns that had them, and the justices.⁶² Lord Morpeth’s bill for the Whigs in 1847 would have created town commissioners only in unincorporated (p.438) towns, one-third nominated by the Crown, two-thirds elected. In the corporate towns the borough councils would become the beneficiaries of what in essence would have been a huge empowerment measure.⁶³ Despite this sharp difference, the rival bills shared an assumption that lasted through until the 1870s, that institutions were not to be created generally, but only where particular need was shown. That is how local Acts of parliament were obtained, the petition alleging the need, the parliamentary committee or local inquiry validating the claim. In Lincoln’s bill, and Morpeth’s as first drafted, the trigger would have been an inquiry instituted by a centrally appointed inspector.

In the Public Health Act 1848 as it eventuated, the trigger was a petition from 10 per cent of the ratepayers followed by a local inquiry and an inspector’s report. In a corporate town, if the inspector recommended the Act’s adoption, and provided that he accepted the borough’s boundary as the appropriate area for the Act, the borough council would simply become the local board of health.⁶⁴ In other towns existing statutory commissioners might likewise be given the Act’s powers and responsibilities. Elsewhere a local board of health would be elected on a franchise allowing the wealthy up to six votes each as ratepayers and up to six as owners, markedly different from the 1835 Act’s franchise.⁶⁵

Significantly, if a town incorporated after the formation of a local board of health, the new borough council would supersede the board.⁶⁶ The Local Government Act 1858 took this one step further, effectively securing for councils the power to become sole governors of corporate towns. It provided that within their boundaries henceforward they alone could adopt its very extensive range of powers, and do it by simple resolution, albeit one requiring a two-thirds majority.⁶⁷ Finally, as the pendulum swung back towards centralized co-ordination and supervision, the Public Health Act 1872 authorized the newly created Local Government Board to dissolve any remaining improvement Act districts within boroughs and transfer their powers to the borough councils.⁶⁸ By 1878 only 49 improvement Act districts remained, dwindling to 28 a decade later, and only Cambridge retained both a corporation and statutory commissioners.⁶⁹

(p.439) Getting a Charter

Most of the larger improvement Act districts were among the towns that eventually petitioned to become chartered boroughs with their own borough councils. The 1835 Act sketched out the procedure, which was codified in 1877, but it stipulated no particular criteria.⁷⁰ The Privy Council would send down an inspector to hold an inquiry, scrutinize the petitions, determine where the weight of ratepaying opinion lay, assess what advantages a corporation might have over any existing statutory commissioners, what costs would ensue, and so forth—all matters of interpretation and judgement. In the early years, at least, petitioning for a municipal corporation often drew counter-petitions from traditional urban ruling élites and those who feared the likely outcome of the elections that would follow incorporation.⁷¹ Wealthy men might petition against incorporation because they stood to lose the benefits of the multiple votes allowed by the Public Health Act and, often, local improvement Acts.⁷² Women might petition against incorporation because the franchise under the Public Health Act or, commonly, local Acts was gender blind, unlike the municipal franchise before 1869.⁷³

Assessment was entirely a matter for the Privy Council’s discretion. Only when it decided to include in some new corporations’ territory either a little more or a little less than the area covered by the supporting petitions was legislation hurriedly needed to make quite sure that that was lawful.⁷⁴ Still, the process was essentially simple, and soon came to have the added encouragement that a newly created municipal corporation could lawfully recover the cost of acquiring its charter by charging it to the borough rate—though that was something some boroughs had already assumed they could do.⁷⁵ A generation later the Privy Council was given power to endow newly created corporations with the powers (p.440) of any previous local authority in its area, including statutory improvement commissioners, though if its scheme were opposed by one twentieth of its electorate parliamentary approval was needed.⁷⁶ And, to add a much needed finality, from 1877 grants of charters were put beyond subsequent legal challenge.⁷⁷ It would not have been arguable that a Privy Council decision against incorporation was justiciable.

Adding Powers: The Convergence of Corporate and Non-corporate Towns

Corporations’ powers came increasingly from general legislation. Some of it needed prior local adoption, some local applications needed executive approval and confirmation by provisional order, but, especially from the Public Health Act 1875, much of it was directly applicable. The need for local legislation correspondingly diminished, though some of the larger cities continued to rely heavily on it, others used it from time to time, and it was still used by utility companies, whose activities might impact significantly on corporations’ ambitions.

Municipal expenditure on applying for a local Act of Parliament or resisting someone else’s application was problematic. A corporation with a surplus could spend it on defending itself against hostile claims or bettering itself by seeking further powers from Parliament, indeed that seems an intrinsic part of its being.⁷⁸ Could a corporation without private means use its statutory power to levy a rate to the same ends? Defence was easier, for Chancery saw the situation as concerning the rights and duties of trustees. Hence it allowed expenditure from the rates in defence of an activity threatened by litigation or someone’s promotion of a local bill, whether or not the activity was a statutory purpose, and whether the trustee was a corporation or a statutory board.⁷⁹ Common law judges were more particular, and certainly did not allow corporations to claim a general interest (p.441) in safeguarding their inhabitants. So in 1846 Warwick was not allowed to spend money from the rates on applying for the replacement of the trustees of the borough’s erstwhile charities, now in the hands of the council’s political opponents who were no longer applying the large annual surplus towards the borough’s lighting and watching.⁸⁰ Chancery judges might not have disagreed with that, but in 1871 a clear rift opened with the decision in R v. Mayor of Sheffield, which significantly narrowed what corporations could count as legitimate defence of their interests. ⁸¹ Here, in the interests of its inhabitants, the council had appeared before local magistrates to oppose an application by the local water company to increase its prices, winning a substantial concession, and had then opposed the company’s application for a new Act, causing its withdrawal. The Queen’s Bench disallowed both sets of expenditure.

As for obtaining new powers, not very long after the 1835 reforms and at a time when corporations were still dependent on local Acts for expanding their role, Chancery had ruled that councils could not fund applications for new local Acts from the rates.⁸² At best, Chancery judges thought, such applications were mere speculations—and trustees must not speculate—and at worst they were jobs drummed up by professionals for sake of the fees. The ruling became conventional, surviving the changed status of municipal corporations after the Public Health Act 1858. It had not been inevitable, for as Page Wood VC later pointed out, to say that corporations held their property on a public trust was tantamount to saying the trusts were charitable, and it was established that trustees of charities could apply for a variation scheme, funded from the trust.⁸³ Its effect was limited, since local Acts incorporating the Towns Improvement Clauses Act 1847 could adopt a section allowing applications for subsequent amendment Acts to be charged to the rates, and as Page Wood VC again suggested, far-sighted councils could include a similar section in their own local Acts, which Parliament seems to have allowed.⁸⁴ Successful applications to Par-liament nearly always contained a clause allowing costs recovery from the rates. But the financial risk of failure fell on councillors, who were vulnerable also to(p.442) injunctions forbidding council expenditure on the preliminary work necessary for an application.⁸⁵

The outcome was the Borough Fund Act 1872, provoked by the Sheffield case. It introduced a general procedure for rates funding of litigation and the promotion and opposition of local bills in Parliament. Threading its way between the demands of ratepayer democracy and the protection of private property, it required prior approval from ratepayers for promotion of, or opposition to, bills in Parliament, did not extend to allowing rates funded applications for bills to rival existing gas or water companies, but was otherwise quite general in its ambit.⁸⁶ Despite its title it did not apply only to municipal corporations. The Chancery doctrine it replaced applied to all rates-funded bodies, be they councils, improvement commissioners, boards of guardians or whatever.⁸⁷ Similarly, the 1872 Act took its cue from the 1858 Local Government Act, bracketing together the major entities of urban administration—corporations, local boards of health, and improvement commissioners. Each, equally, was a power-bearing and a power-seeking entity, irrespective of legal form. This was no abstract point of constitutional theory, for although applications for local bills by local boards were not numerous, examples can be found in most years. Sometimes such a local Act was followed soon afterwards by promotion to corporate status—Barnsley, Rotherham and Kimberworth, Leamington Priors, Keighley, and Eastbourne are all examples.⁸⁸ Sometimes the Act was needed for a specific purpose like the purchase of an existing gas or waterworks, sometimes a local board’s Act was indistinguishable from the sort of general improvement Act acquired by one of the smaller or medium sized boroughs.⁸⁹ So far as powers and the means of getting them were concerned, there was often little difference between a corporation and a local board.

(p.443) So far as by-laws were concerned, again there need be little difference between a corporation and a local board. Where the source of power was the same the procedure would be too, requiring byelaws to be submitted to a minister of the Crown for approval. For powers under the Public Health Act 1848 and the Local Government Act 1858 that meant the Local Government Act Office, which began to issue codes of model byelaws and to require good reason for departure from them.⁹⁰ After 1875 that scrutinizing function was transferred to the Local Government Board, whose secretary issued a somewhat stern circular in 1877 reminding all local boards (including borough councils acting as local boards) of the general legal requirements for byelaws, stating how the Board interpreted them, detailing the consultations it had made on technical detail, and appending a complex code.⁹¹Corporations’ byelaws under the Municipal Corporations Act needed approval from the Home Secretary instead, but from 1875 the function was split, approval of those concerning the suppression of nuisances shifting to the Local Government Board.⁹²

It may have been possible to evade some of this scrutiny by instead including byelaw-like material in the text of a local bill, and trusting to the laxer scrutiny of Parliament. That route, if available at all, would have been more likely to be taken by boroughs than by local boards. But whatever opportunity there was would have been lost after 1882, when the Commons established its Police and Sanitary Committee to tighten scrutiny, a committee that then built a close relationship with the Local Government Board.⁹³

Power to approve local authority borrowing was more divided. If corporations borrowed under the Municipal Corporations Act 1835 they needed Treasury approval. In the eyes of its major critic at least, Treasury concerned itself only with procedural questions, seeking only to ensure that local opinion was in favour of the loan.⁹⁴ Nonetheless, from 1860 at the latest the Treasury was able to impose conditions to secure repayment and monitor progress, and could generally aid a corporation with its debt management.⁹⁵ The Treasury’s critic, predictably, was (p.444) the General Board of Health. It was responsible for vetting applications under the Public Health Act 1848, and it prided itself on detailed scrutiny of both the projects and their costings.⁹⁶ Its successor, the Local Government Act Office, continued that detailed scrutiny of the project itself, if with rather less messianic self-belief, but still rejected some proposals and modified many.⁹⁷ There was no doubt a disparity here. It was resolved in the 1880s, like so many others, when the Local Government Act 1888 made the Local Government Board the only approving authority, save for loans under a couple of minor statutes, which appear to have been overlooked.⁹⁸

Much more important, because this was the origin of most local authority borrowing, was the relative freedom conferred by powers in local Acts.⁹⁹ The powers needed parliamentary approval, of course, but there is no evidence of scrutiny of the sorts outlined above. A recommendation from a select committee in 1848 that no local Act should confer a borrowing power on a local authority without prior approval of a Secretary of State came to nothing.¹⁰⁰ This was the route taken by the boroughs, especially the large ones. But this too was reined back in the 1880s as model clauses extended the Local Government Board’s control. By the early twentieth century it became usual for local Acts to delegate the settlement of the terms and technical detail of a loan to the Board, whereas previously they had been spelt out in the local Act itself.¹⁰¹

This was all a substantial convergence. There were still some differences. The franchise for borough councils and for local boards remained radically different until 1894. And, perhaps the last symbol of corporations’ difference, their audit was essentially an internal matter whereas local boards (meaning now only those local boards that were not also borough councils) were subjected to the full external audit procedures of the poor law union auditors, which by stages became the district audit system.¹⁰²But, those differences aside, by the 1880s local boards and all but the largest borough councils were substantially similar, similar enough (p.445) for the Conservatives to attempt to subordinate both to a new level of county government within a thorough restructuring of local government as a whole. To appreciate how that came about it is first necessary to consider local government outside the cities and the towns.

Justices and their System of County Government

Government in the counties meant rule by the justices, which in turn meant rule by the substantial landowners through an oligarchic co-optive system. Appointment was by the Lord Chancellor on the nomination of the county’s lord lieutenant, who would use his own knowledge to vet applications from aspirants or would rely on the views of existing magistrates already most active at county or divisional level.¹⁴⁴ In the eighteenth century a shortfall between a county’s need for active magistrates and the willingness of its landed elite to supply it had been met by appointing the wealthier stratum of the clergy. In 1831 they made up 26 per cent of the magistracy, falling to 13 per cent in 1842 after the Whig reform government advised lords lieutenants against recommending clerical magistrates—Tories as they mostly were—and down to 6 per cent (p.455) in 1887.¹⁴⁵ Nonetheless, counties with sparsely populated areas and whose lord lieutenant resisted social dilution of the magistracy might continue to appoint clerics. Lincolnshire, which had 41 among its 92 active magistrates in 1807, had 70 among its 196 active magistrates in 1872.¹⁴⁶ Other counties found they had to include men from the lesser gentry if the bench was to be kept large enough to be efficient.¹⁴⁷ By mid-century, a few, driven by industrialization, were even admitting middle-class capitalists in significant numbers, preferably after they had retired from their business, but eventually even when they had not.¹⁴⁸ Thereafter businessmen appeared in small numbers on many benches, but everywhere the landowners held on, and in the agricultural counties they remained dominant through into the 1880s.¹⁴⁹

For as long as the parish vestry had had civil functions the justices had had a supervisory role, a legal relationship matching the social, as the magnates and big landowners on the bench supervised the yeomen, tenant farmers, and independent tradesmen who typically constituted the vestries.¹⁵⁰ This was particularly true of the poor law, since there was scarcely a section in the statute of Elizabeth which did not confer some function or other on the justices, a feature which had been frequently amended by subsequent statutes and interpreted in numerous judicial decisions, all aiming to establish the boundaries between vestry, individual justice, and sessions, for the time being at least. The Elizabethan Act itself provided that justices appoint ‘substantial householders’ as overseers, conventionally on the nomination of the vestry.¹⁵¹ Appeal lay to quarter sessions, which could control access to the King’s Bench on review by choosing whether to state its reasons or merely give a bare decision.¹⁵² So justices and benches could prevent the appointment of overseers of too low a(p.456) social status if they wished, and David Eastwood has found evidence from the early 1830s that some did.¹⁵³

Justices’ direct role in rating questions had been limited by judicial decision and by a statute of 1743.¹⁵⁴ The same Act, however, elaborated the requirement that overseers’ accounts be confirmed by a justice, with power to disallow illegal or exorbitant expenditure and to adjudicate on objections from ratepayers, with appeal to quarter sessions. In theory that gave justices ample scope to influence policy, but since there was no standard form for accounts, nor any obligation to produce the receipts and vouchers that would make for a full audit, disallowance was said not to have been much used in practice.¹⁵⁵ If it had been, quarter sessions’ decisions would have been final, because a preclusive clause blocked access to certiorari. If, on the other hand, sessions allowed an item in the accounts a dissatisfied ratepayer did have access to the courts.¹⁵⁶ Though professing anxiety not to entrench upon quarter sessions’ discretion, and declining to receive evidence of illegality by affidavit, the judges would still quash accounts unlawful upon their face.¹⁵⁷ In particular, the King’s Bench would not sanction payment from the rates for salaried assistance to parish officers, no matter how clear the vestry’s wish, how obvious the efficiency to be gained, or how willing the justices were to move away from traditional limitations.¹⁵⁸

More directly, the Elizabethan Act was taken to authorize individual justices to hear appeals by paupers against an overseer’s refusal of relief.¹⁵⁹ Quarter sessions could not overrule an overseer itself, nor did an appeal lie against a justice who ordered relief. Thus on the one hand an individual justice had power to procure the deference of his local vestry to his actual and anticipated rulings, and on the other a policy both general and consistent could be developed only if justices were willing to act collectively.¹⁶⁰ That is what happened in the 1790s in much of the south of England, when in response to prolonged economic crisis an allowance system was introduced whereby poor relief was used as a wage subsidy, (p.457) based on scales originating from justices of the local petty sessions division—the well-known ‘Speenhamland system’.¹⁶¹

In the 1830s reaction to this allowance system, the burden it was thought to be throwing on to the rates, and its affront to orthodox Malthusianism, was to sweep away both parish administration of the poor law and the discretionary, supervisory role of justices over it. There was a place for justices in the new system, as ex officio members of the boards of guardians, but there they would share power with the ratepayers’ representatives, usually the tenant farmers who, as parish officers, had been under their supervision. Nonetheless, in many unions justices were prominent in the early years of the new system, when the important policy decisions were taken. Later, when it all became a matter of mere administration under regulation by the Poor Law Commission and its successor, the Poor Law Board, they tended to lose interest.¹⁶² Central direction of a systemized and intrusive sort had replaced their piecemeal supervision.

As for quarter sessions itself, the statutory quarterly meetings of the county justices, its administrative functions changed significantly but within a relatively narrow compass. It never acquired public health functions, for example. Law and order in a general sense had long been the central concern, bridges and highways a distant second. These functions required an executive structure of sorts, something to give continuous attention and fill the gaps between meetings of sessions. By the end of the eighteenth century most counties had appointed a permanent Chairman of Quarter Sessions and formally separated their administrative from their judicial business.¹⁶³ Many devolved work to committees, both standing and ad hoc. There was potential legal difficulty here, for delegation was not (and is not) an inherent power of judicial bodies or those with discretionary powers, though it was always open for a committee to do the ground work and the sessions the deciding.¹⁶⁴ Something too could be achieved through use of adjournments.

So statutes that increased quarter sessions’ functions would sometimes create additional machinery. The Gaols Act 1823 left rule-making to the sessions generally, but required a committee of visitors for monitoring and inspection, and the Lunatic Asylums Act 1845 vested many of its powers directly in a committee of visitors, often with only reporting responsibility to the parent body. On the other hand the County Police Acts left it up to the sessions itself, so that Hampshire (p.458) sessions did not feel it need create a police committee until 1872, though its police force was instituted in 1839.¹⁶⁵

For the most part structure was minimal, and imposed by the justices themselves, but it served a county government that despite its political critics was often both efficient and economical.¹⁶⁶ As for capital, justices needing to borrow for the construction of county buildings—shire halls and the like—needed sanction from a local Act, until a general power for those purposes was granted in 1826.¹⁶⁷Similarly, the Mortgages of County Rates Act 1825 allowed money to be raised for building prisons and asylums, and later statutes imposing new obligations also included the necessary borrowing powers.¹⁶⁸

The major function gained by the justices was policing. Neither parish nor poor law union was to be the unit for local policing, nor was there to be a national police force. A quarter sessions that adopted the 1839 County Police Act necessarily proclaimed the power of magisterial government, be its force large or small. Adoption of the Parish Constables Act 1842 enhanced instead the role of the justices in their petty sessions divisions, and the 1856 County and Borough Police Act confirmed that the county was a natural unit for policing. But quarter sessions would have less authority than a borough watch committee. The latter could direct its police and hire and fire at all levels, whereas the 1839 Act created an independent operational role for the chief constable of a county, albeit subject in some rather uncertain way to the ‘lawful orders’ of sessions.¹⁶⁹ Counties thus felt the drive towards professionalism rather sooner than the boroughs did, mitigated to some extent by their ability to find their chief constables from among the gentry, and subject always to the power that came with financial control.¹⁷⁰

So far as central influence is concerned, however, it is clear that at first the counties voluntarily adopting the 1839 Act were virtually free from it.¹⁷¹ Compulsion changed that relationship, immediately in that the 1856 Act mandated both that there be a county police force and that it have a chief constable, and potentially through the grant in aid for forces declared efficient by Home Office inspectors. (p.459) Their views on the appropriate size and structure of forces prevailed, and on matters of uniform and equipment. On other matters where inspectors would like to have seen a professionalized uniformity, however, the Home Office generally deferred to local autonomy.¹⁷²Further, as Carolyn Steedman has pointed out, the very conception of policing in the first decades of the county forces had a magisterial hue to it. Counties were empowered to use their policemen for a range of administrative tasks that fell within quarter sessions’ general remit, and they did so—using them for anything from assistant relieving officers, through inspectors of weights and measures, to ferrying prisoners to and from prison, until central pressure and the professional ethic began to cut away such ancillary roles in the 1870s.¹⁷³

At about the same time the grant in aid was increased, bringing with it a further concern for value for money.¹⁷⁴ Its main focus, however, was on the police of the small boroughs, and the solutions, further consolidation of borough forces with the adjacent county, and a bar against newly created boroughs having their own police unless they had a population of 20,000 or more, enhanced the status of the county forces.¹⁷⁵ In 1888, when elected county councils replaced the administrative side of quarter sessions, county police forces were still so closely identified with the county bench that the question of their future governance was cast as being whether the justices should retain the whole control or have to share it with the elected representatives of the people.¹⁷⁶

As policing was gained, prisons were lost. Quarter sessions had long acknowledged responsibility for provision of gaols and houses of correction. What changed was that Home Office supervision dictated both the programme for building and, by stages, the type of design that was acceptable and the penal regime employed. Peel’s Gaols Act of 1823 required that a county’s gaols be adequate for a punishment system that divided prisoners into five different categories.¹⁷⁷ Oxfordshire, which had just spent £3,187 modernizing the castle gaol, had to spend a further £2,985 as well as increasing the salaries of its gaoler and chaplain to meet their new responsibilities.¹⁷⁸ The quarter sessions for the (p.460)Lindsey division of Lincolnshire, which had improved its house of correction in 1808, now found that in addition it needed a gaol, which would cost £26,400.¹⁷⁹ Inspectors appointed by the Home Office under the Prisons Act 1835 accelerated the process, necessitating prison building programmes in Hampshire, Berkshire, and Lincoln for example.¹⁸⁰

The gap between those who were designing and those who were paying was filled from 1846 by a system of grants in aid, though this made it easier for inspectors to press for the conversion of local prisons into forms that better suited current penal theory, and emphasized that policy was determined at national level.¹⁸¹ Long before prisons were nationalized by Disraeli in 1877 as the easiest means of reducing the burden of county rates, even before the 1865 Prisons Act caused a second and even more extensive round of prison building and modification, magisterial autonomy had been permanently undermined.¹⁸²

It was a similar story with pauper lunatic asylums, though the Lunacy Commissioners were much less peremptory than the inspectors of prisons. From 1808 quarter sessions had power to provide a county asylum for lunatic paupers, which some entrepreneurial counties turned into a successful trading enterprise catering for private patients and paupers from other counties.¹⁸³ In 1845 Shaftesbury’s Lunatic Asylums Act made such provision compulsory, prescribed a management structure, and provoked another expensive round of building.¹⁸⁴ After a year in which the situation was doubtful, however, justices regained some control over admissions to the asylums, and were also able to use their role as statutory visitors to claim some autonomy in management.¹⁸⁵ Scholars contest how great that autonomy was, but it is clear that whatever authority quarter (p.461) sessions retained, it had to be constantly negotiated with the agents of central government. ¹⁸⁶

Internal Hierarchies: Petty Sessions

Quarter sessions was only one forum where justices exercised administrative authority, of course. Counties had established divisions in the seventeenth century, and it was at their statutory ‘special sessions’ that the justices of each division saw to the maintenance of the highways under the Highways Act 1773, and licensed inns and alehouses under the Licensing Act 1753. Both gave important control, the former over the vestry and its surveyor, the latter over the number, quality, and characteristics of drinking places, often determined with reference to a general county policy. The statutory assignment of these functions to the divisions overlapped with the voluntary processes by which justices gradually created a court of petty sessions as the appropriate setting for the exercise of their more important judicial powers. Those processes had varied between counties, and could be regretted by justices holding to notions of individual jurisdiction, but they were reasonably complete by the start of our period.¹⁸⁷ The old-fashioned view, voiced by the royal commission on county rates in 1836, that petty sessions were merely voluntary meetings of magistrates, belied their regularity and legitimacy.¹⁸⁸ It did perhaps explain why as courts they were badly serviced, often reliant on rooms in inns for their location and on poor quality fee-taking clerks for their record keeping.