HL Deb 13 August 1833 vol 20 cc563-76
The Lord Chancellor

, after moving the Order of the Day for the second reading of the Burgh Reform (Scotland) Bill, said, it became his duty to state to their Lordships the principles and object of the measure in question. In the outset he must express his concurrence in the Bill, which he considered to be salutary and necessary, as it would be the means of effecting a great improvement in the municipal laws of Scotland. The subject had been frequently adverted to in the other House of Parliament, but, excepting that it was incidentally introduced when the Reform Bill was before their Lordships, it had not been the subject of discussion in that House before, as he believed. Having been only incidentally introduced on the occasion to which he had referred, it became the more necessary for him now to enter more at length into the matter, and, in doing so, he felt he should be under the necessity of trespassing upon their Lordships' time longer than he otherwise should have wished; but the subject was, he need not say, one of great importance in relation to that part of the United Kingdom to which it bore reference. With these prefatory remarks he would now proceed to notice the system of the corporate bodies of Scotland. It was well known that, at the present day, a great difference was to be found between the two systems which prevailed in England and Scotland; but, notwithstanding this marked difference in remote times, the system embraced, no doubt, similar principles, and the practice arising therefrom was similar in both parts of the United Kingdom. The question was now involved in obscurity; yet, three or four centuries ago, the same principles and practice, in all probability, prevailed in Scotland and England with respect to Corporations. That, however, was matter rather for the investigation of the legal antiquary than for a Legislative Assembly. The rights of election with respect to the officers of burghs in Scotland were, as he had intimated, similar to those exercised in this country prior to a great change which was made about four centuries ago. But, as he had already said, there was considerable obscurity upon this head, yet, until that alteration was made, the rights of election were more extended than afterwards. He had no doubt, indeed, that the election of the Corporation was in the hands of the burgage tenants of the Crown, holding in capite. In the year 1469 it appeared that the Legislature of that part of the kingdom passed a law which effected a material change in the constitutions of corporations with respect to the burgesses at large of the burghs in Scotland; for, instead of their being entitled, as heretofore, to vote for the officers of the burghs, that right was confined to a much smaller body. The Provost, as their Lordships were aware, was similar to a Mayor in English corporations; the Town Council resembled the Common Council, and the Baillie an Alderman. There appeared, however, the word Alderman, in reference to Scotland, in an old Act of Parliament, but Baillie was the designation given to the officer who nearly resembled the Alderman in English Corporations. Of the Town Council, among whom was the Baillie and the other officers, and from the Council, as now established, they were chosen. It was probably argued at the time, when the law to which he had called their Lordships' attention was passed, "You (the Burgesses) have elected a Council. It is your' own choice. We will take from among that body our officers, and you can have no objection to that arrangement." Now, the preamble of the Act was very concise, as indeed was the Act itself. The preamble was in these words—"Touching the election of officers, because of great contentions yearly for choosing the same through multitudes and clamour of the Commons, simple persons"—they were, therefore, henceforward to be excluded from the election of the officers.—The Act went on to point out what was to be done with respect to the appointment of the officers. The old Council and the new Council were henceforth and for ever to appoint the officers of the burgh. Each trade or handicraft had a Deacon, chosen by each body, to represent that body in the burgh.—He would refer to the capital of Scotland as a specimen of the burgh system in that country. By the Act of 1469 the Council was to consist of thirty-three Members, twenty-five of whom,—namely, the Provost, four Baillies, Dean of Guild, &c., were self-elected. The other eight were apparently chosen by the trades, but virtually chosen by the Council. The trades amounted to fourteen, and each, according to the Act, was to send a Deacon to the Council; and the way that was done was as follows:—The Council sent to each trade six names, leaving the trade to strike off three, and the Council chose any one of the remaining three that it thought proper. That was the custom at Edinburgh, but the system was not so exclusive in other burghs. It was the practice in some of the burghs to send up six names to the Council, leaving the Council to strike off three, the trades choosing the Deacon from the remaining three. In the case of Edinburgh, however, and many other burghs, it might be taken for granted that the system of self-election was paramount, and the burgesses could not in the smallest degree interfere in the election of their Magistrates. The mode in which persons obtained their freedom in Scotland was very different from what it was in England. It was not by birth, or servitude, or marriage, that the freedom of the City was obtained, as in England, but, in many instances, a person could demand to be admitted, if he could prove that there was no legal objection to his admission; or if he was prepared to qualify himself for the trade to which he wished to belong. The trades were fourteen in number, besides one Guild. The person at the head of any particular trade was called the Deacon. The Guild consisted of general merchants, and the person at their head was called the Dean of Guild. With the exception, therefore, of the Guild, persons might be elected into the other trades, whether they had served apprenticeships or not. There were twenty-four burghs who had Provost, Baillies, Council, Dean of Guild, and Deacons; but there were many others who were worse off. There were eleven, for instance, who had no Guild of Merchants; and the Dean of Guild was absolutely Deacon chosen by the Council. But there were twenty-five which not only had no Guild of Merchants, but no trades at all; and the Council, consequently, appointed the Dean of Guild and the Deacons of the trades, precisely as if there had been both merchants and trades. As ill nature, there was a long scale of gradation, from man, the head of the creation, to the polypus that adhered to the rock, and nearly inanimate as the rock itself—so in art there was a similar gradation—and in no instance better exemplified than in the artificial state of the Scotch burghs, where there are some that approach to what might be called political extinction, for there were actually four burghs which had neither Dean, nor Deacons, nor Burgesses. The consequence was, that the Council elected themselves, and performed all the important functions of Magistrates and Judges. Now, bad as was the constitution of the burghs, it might be supposed that the privileges of the Council would be small in proportion to the bad mode of election; but the very reverse was the case, and the power of the Council was in the inverse ratio of the mode of election. In many of these burghs, which were corrupt and worn out, the power of the Council was of the largest and broadest description. There was nothing at all like it in England—bad as some of the English corporations were, and much as they required amendment; they might say, indeed, that the very worst of the English boroughs might be held up as a political prodigy of purity, as compared with the Scotch burghs. The power of the Magistrates, too, was of a most extensive kind. They were not only Judges in many civil cases, but they also had a criminal jurisdiction, short of life and limb. They also had the management of the funds of the corporation, some of which were very large; yet, large as they were, many of the incorporations were insolvent or bankrupt. These funds arose from land, or fees, or imposts. The burghs altogether amounted to sixty-six, and of these some had a revenue of more than 50,000l. a-year, derived from taxes or from imposts levied on the inhabitants. The revenue of Edinburgh, derived from this source was, he believed, 52,000l. or 53,000l.; that of Glasgow was not less than 60,000l. The smaller burghs possessed a revenue of 8,000l., 2,000l., or 1,500l. Several of them had considerable tracts of land, and he could mention a small burgh which had 2,000 acres. There was another, not a large burgh, which had 3,000 acres, and two fisheries. It might perhaps surprise their Lordships that some of these burghs, with that extent of land, could not boast much revenue—not above 150l. The fact was, that the land was feued out, he did not say, by favour, but it was feued; and those who held it held it at a perpetual fixed rent, and were possessed of all the rights of property over it. Of the feuars of the 2,000 acres, it did so happen, and no doubt their Lordships would regard it as singular—it did so happen, that of the eleven feuars, every one of them bore the name of some Provost of the burgh. With respect to the revenue derived from imposts, it was managed much in the same way—there was in the disposal of it that spirit of favouritism which in other places was called jobbing. In many burghs, however, that had gone by, and a great improvement had taken place. He would, to show the way how these Magistrates consulted the good of the burgesses, give two or three instances. A gaol was to be built in one of the burghs, and the Deacon of the builders, or wrights, contracted to build it for 700l. It was to consist of three stories, but somehow or other the plan was changed, and it was reduced to one story. It was natural to suppose that the expense would be proportionally reduced. No such thing, for though the stories had been reduced from three to one, the expense was raised one-half. In another burgh a building was advertised for public contract, and a tradesman engaged to do the work for 850l.; but no, that would not do, he was not a Deacon, and a Deacon got the job at 1,600l. These were but samples of what had occurred, and they were the inevitable results of the system of self-election, which made men heedless by setting them above all responsibility and control. To confirm this, it was only necessary to refer to the circumstances of the burghs; one of them had obtained an Act of Parliament to put its affairs under trust, and was insolvent. Another had at that moment a deed of trust preparing; and a third was in a state of bankruptcy. At a meeting of the Convention of the Delegates of the Royal Burghs in 1792, at which, fifty-two delegates were present, a Resolution was passed, declaring that it was not possible to obtain any control over the expenditure as long as the system of self-election continued, A Bill was then brought into Parliament to correct the vices of self-election, but it did not succeed. The distaste into which the very name of Reform fell after that period, in consequence of the French Revolution, extended itself to Burgh Reform, and it was considered that one was not likely to be effected till the other was accomplished. But now, that Parliamentary Reform had been carried, Burgh Reform, which had suffered from the name and connexion, was now to be carried into effect, and the implied pledges given to the country on the subject redeemed. The Bill, which he asked their Lordships to assent to, was founded on the ten-pound franchise of the Reform Bill. It was a necessary consequence of the condemnation of the self-election system that some other mode of election must be adopted; and there was none so good and convenient as that on which the Reform Bill was based. The registration had answered all the purposes of the authors of that measure, and would serve as an admirable means for taking the poll in burghs. He had been of opinion, that annual elections were too frequent, but he was bound to admit, that his opinion had been changed; and considering the general, the unanimous opinion of the people of Scotland, and that the election of burgh officers always had been annual, he had come to the conclusion, that they ought to continue to be annual. It should, however, be observed, that in order to preserve identity in the Council, all the Councillors were not to be renewed every year; one-third only would go out annually and be annually re-elected. The Bill had no other objects in view than to put an end to the self-election system, and provide for the proper election of the officers; and those who admitted the self-election system to be bad, could scarcely object to those enactments which were the necessary consequence of that admission. The Town Councils, he should also observe, would have to choose all the Burgh officers, as heretofore; but the Councils themselves would be differently chosen. The self-election was admitted to be bad, and the small change now proposed was not more than sufficient to get rid of that. It had been objected that these Bills should not be pressed forward till the result of the Corporation Inquiry were known; but it appeared to him that, with reference to Scotch burghs, there was already ample evidence for them to act upon; so much so, that the Scotch people were in a most anxious state of impatience for the reform of their frightfully vicious corporations; in short, if the Session were allowed to pass over without carrying this Bill into law, that people would have good reason to consider the promises held out to them by a Reformed Parliament, not only as utterly unfulfilled, but as a mockery and insult. At the time of passing the Reform Bill, he had regretted the reservation of the rights of freemen, and all he had seen or heard of since then, taught him that his regrets were well founded, and he still bitterly regretted that most unwise reservation. Some persons had objected to the present Bill that it did not give the franchise to all burgesses; but those persons should recollect that, by the petty nature of the qualification, any body might become a burgess; for the qualification necessary for the admission of burgesses sometimes went so low as 16s. 8d., and he had even heard of some burgesses being admitted on the strength of 5s. This was all that was requisite for becoming a Scotch burgess, and thus the declaration that all burgesses should be admitted to the franchise became tantamount to the admission of all persons indiscriminately to that franchise. In such places as Edinburgh and Glasgow, where the burgesses were mostly highly respectable men, it would be found that the major part of them came into their franchise as 10l. householders. In Glasgow there were not less than 6,000 or 7,000 burgesses who were 10l. householders; and thus the burgesses might consider themselves fully represented. This being undeniably the case, the only question was, whether it was desirable that all burgesses should be indiscriminately admitted to this most responsible franchise, for many there were who were only 4l. householders, others 3l., others 2l., and more there were who were no householders at all. In one town of Scotland, for instance, out of 800 burgesses, there were only 100 who were 10l. householders; and the question then was, whether this 100 were to be overwhelmed by the other 700. The case applied to all Scotland. In conclusion, he would say, that this Bill was as loudly called for by the Scotch as the Reform Bill was by the whole united nation; it would give him and the whole people of Scotland the most heartfelt satisfaction if their Lordships would suffer it to pass; and it would cause in him and in them, most unmingled sorrow and hitter disappointment, if their Lordships should frustrate an object of such ardent and general desire.

The Earl of Rosslyn

said, that all parties were agreed as to the necessity of puling an end to the principle of self-election, and the abuses which had been so ably exposed by the noble and learned Lord. The question was as to the means of carrying so desirable an object into effect. And here he must observe how very different the course pursued towards the Scotch burghs was to that adopted with reference to English Corporations. In the former legislation was made to precede inquiry, while in the latter, most properly, inquiry preceded legislation, although the Committees appointed by the other House had recommended the same plan to be adopted with regard to both—namely, that cautious inquiry should first be made, in order to enable Parliament to legislate justly and successfully. In nineteen of the Scotch burghs, in which the present system of election was to be done away with—the number of the new constituency to be substituted would be less than that of the Councils which were to be destroyed. It was proposed to restore the ancient free Constitution, and to whom, then, ought this ancient free Constitution to be restored?" Surely not to the 10l. householders, for this class had nothing to do with this ancient free Constitution, it not being in existence at the time. No; that ancient free constitution, if restored at all, ought to be restored to those who had it before—namely, the burgesses and to none but the burgesses. There were several statutes which showed that the burgesses had always had the sole right of election, and of controlling the Council, and by one of which Acts it was rendered competent in any three burgesses to complain of the Council to the Court of Exchequer, which was bound to adjudicate therein. It was the only Constitution that he had ever heard of, established, and even professedly established for a year, nay, for less! A greater mockery had never occurred in Legislation.

The Earl of Haddington

felt it impossible to allow the question to be put, without addressing a few remarks to the select Assembly [there were about sixteen or eighteen Peers present] met to decide this important question; and without protesting, in the strongest manner, against that most dangerous measure which was now submitted to their Lordships' consideration. With respect to the system of self-election in the Scotch burghs, he did not believe, that any man stood up for it. He had never approved of it abstractedly; but he had been unwilling to touch it, because it was a part of the Constitution of the Scotch burghs, closely connected with that Reform in the Representation to which he had always been decidedly opposed. When, however, the Reform in the Representation took place, it became evident to every one, that the system of self-election in the Scotch burghs could no longer be allowed to exist. It was not, therefore, to the abolition of the system of self-election that he objected, but to the practical measure founded on that abolition. The Bill before their Lordships gave the elective franchise to 10l. householders; but these were persons who might have no property whatever; and he denied, therefore, that the statement in the preamble—namely, that the Bill was to restore the ancient free Constitution—was well founded; for by that Constitution the franchise was vested in the ancient probi homines. The noble Earl here entered into an examination of the operation of the proposed measure as it regarded Glasgow, in order to show, that many of the inhabitants would be excluded from the benefits of it, although in every respect entitled to them, simply because they resided in a particular district. Its operation on charitable institutions would be most unjust and injurious; those institutions had hitherto been under the management of the Town Council, being burgesses; they were now to be left to the control of 10l. householders, who had no interest whatever in their prosperity. Even the University of Edinburgh and Glasgow were threatened with danger. It was well known, that the Town Councils of Edinburgh and Glasgow, among other power and patronage which they enjoyed, had the right of presentation to the Established Churches in the city, and the gift of most of the Professorships of the Universities. It was highly to the credit of the Town Council of Edinburgh, that they had selected such individuals for the Professors' Chairs, as to enable the University to hold the distinguished rank which it held among the learned bodies of Europe. There was some risk, therefore, that both the Church and the Universities might be damaged by the proposed change; for it was evident that popular feeling and excitement were not always the best qualifications to enable an individual to pronounce on the merits of a Professor or a Minister.' The Magistracy, the incorporated trades, and the burgesses, were all loud in their complaints against this Bill. The Scotch were a people that did not like to take a leap in the dark. If a Commission were appointed to investigate the subject, and legislation were to follow the Report of that Commission, they would be much better satisfied than with the present crude and ill-digested measure. It was clear also, as had been observed by his noble friend, that this was only a provisional measure. Referring to the warrant which had been issued for the purpose of obtaining information on the subject, and of bringing before the law-officers of the Crown, persons, papers, records, &c. belonging to the different Scotch Corporations, he characterised it as a great stretch of the royal prerogative; and expressed his conviction, that it would not have been obeyed in England. He concluded by moving, that the Bill be read a second time that day six months.

The Marquess of Bute

was opposed to the Bill, for he thought, that its enactments did not bear out the preamble, which professed to restore the ancient Constitution of the Scotch burghs. It was quite true, that in England burgesses were created for parliamentary and electioneering purposes, but in Scotland no such persons as parliamentary freemen were to be found—the rights of the Scotch burgesses were derived from the property they really possessed, and their claims to the right of voting were far better than those of the electors of England and Ireland. He wished, therefore, that in Scotland burgesses upon that footing should continue to be those who held the right to vote for the town councils and other members of the Corporations.

The Lord Chancellor

said, that he had wished to have saved their Lordships from any further delay, but he could not allow the House to go to the question at once without making one or two observations on what had fallen particularly from the noble Lord who had last spoken. The gross mismanagement of burgh property in many instances had led to this measure; instead of the burgesses having any control in the matter, the whole management was in the hands of the councils, with the choice of which the burgesses had little or nothing to do. It was therefore the greatest possible abuse of language to say, that this Bill deprived them of any advantage or interest for the puspose of vesting it in the 10l. householders; especially when it was considered that the burgesses had no interest in the business, nor had enjoyed any for the last four centuries, during which period every thing depended on the will of the councils. His noble friend stated, that he had been given to understand, on no mean law authority, that the issuing of such Commissions as that of Corporation inquiry was illegal. Now he assured his noble friend, let his authority be what it might, that he was mistaken, inasmuch as several similar Commissions had been from time to time issued by the Crown, without the authority of an Act of Parliament. He might mention the Chancery Commission, among others, which had issued under "no mean law authority"—the then Lord Chancellor, who, as well as the present Master of the Rolls, was one of the Commissioners upon that inquiry. This was sufficient to settle the question of legality. His noble friend had said, that the English Corporations were endangered by this proceeding, and he added emphatically, "let the Corporations of England look to it." He (the Lord Chancellor) said so too; "let the Corporations of England look to it," he repeated, the rather because a Commission of Inquiry had been appointed, the members of which were determined fearlessly and firmly to discharge their great and important duties. The inquiry would be rigorously proceeded with, as it had been honourably commenced. He knew, that many Corporations had no occasion to dread the strictest investigation, but let those which had been guilty of abuse, corruption, or gross negligence, "look to it." The time was come for them to "set their houses in order," that they might be prepared to meet the investigation, if possible, without shrinking. He repeated, no Corporations that had not been guilty of abuses need entertain any apprehension, as he was sure such would not stand upon the strict limit of right or privilege, but allow the inquiry to proceed without attempting to shuffle out of it on a point of privilege. As to the charge of breathless haste and want of deliberation, which had been made against the authors of the present measure, nothing could be more unfounded—more opposed to the facts of the case. The proceeding had been called for by the people for years. He admitted, that the Bill came before their Lordships at a late period of the Session, but that was no fault of theirs, for it had only just come up from the Commons: neither did any blame for the delay rest upon the authors of the measure in the House of Commons, seeing that the first two months of the Session had been devoted to the pacification (in which the Legislature had succeeded) of an important member of the empire, and that the rest of the public business had been thereby necessarily thrown into arrear; and this measure among others. But that the Bill had been unreflectingly brought forward in the Commons, any more than it was now with breathless and indecent haste urged upon their Lordships, he utterly denied. There had been much and valuable previous inquiry in the most important particulars; then a Committee was appointed, and sat on the subject; and the result of their deliberations was the present Bill: so far was the measure from being the unreflecting act of an individual, or a fruit of the breathless haste and impatience of a Reforming Government. But this was not all: before the delegates of the Scotch burghs, in Convention assembled, had the Bill been laid, and those delegates, to the number of more than fifty, came to a resolution wholly approving of the principle of the measure and making a few objections to details, which objections, on consideration, had been for the most part admitted and removed. The result of all this consideration, inquiry, and consultation, was the Bill which he had now moved their Lordships to read a second time. Hardly ever had there been a measure to which the charge of breathless haste or imperfect consideration was less applicable. With respect to any advantage which the burgesses might at present derive from charities, the Bill did not impair or annul them. It left whatever trade charities were in the hands of the burgesses wholly untouched, there being a clause in the Bill specially exempting them from the interference of the measure; and with respect to charities under the control of the town councils, the Bill only interfered with them to this extent—that it made such councils the Representatives of the 10l. householders, instead of allowing them to continue self-elected and representing no interest but their own. The funds were still to remain under the management of the Councils and Magistrates, the only difference being that those Councils and Magistrates would be differently chosen. Under these circumstances, it would be worse than idle to talk of the interest of the burgesses in charitable funds and bequests being impaired by the Bill—the contrary would be the case. His noble friend had hinted something of the delicacy and difficulty connected with the exercise of church patronage, and choice of Professors in the Universities by corporate bodies, and he appeared to think, that the difficulty would be increased if such patronage or choice were to fall into the hands of bodies less select than the present. Now, he could not admit, that the councils and Magistrates chosen under this Bill would be less competent to exercise the functions in question than were the existing Corporations. Really he was not prepared at the present moment, within eight or nine months of November, 1832, to hear the panegyric pronounced by his noble friend as to the excellent choice of Professors, which was always made by those self-elected Town Councils. A few years hence, and he might listen to the eulogy with indifference, but just now it had occasioned him a good deal of surprise; especially when he recollected that the most eminent man of science of the present day—a man admitted by the general consent to have placed himself at the head of natural philosophy in this country, by the many and important discoveries with which he had enriched that science—might at this moment have filled the chair of philosophy in the metropolis of Scotland, but that it was thought more expedient by the self-elected Council of that city not to choose that great ornament of our country, but one better known for his connexion with the town of Edinburgh than for his acquirements or discoveries in science. He, for one, as an alumnus of that University, which he was disposed to regard with affection and respect, did deeply lament, that the self-elected body of Edinburgh had not deemed it discreet or expedient to obtain for that seminary the glory of so great a name. The noble and learned Lord proceeded to observe, that the only object of the Bill being to prevent self-election, all that was necessary, and all that the Bill undertook to do was to provide a substitute for self-election.

Amendment negatived, and Bill read a second time.

The following protest was entered.


  1. 1. Because, while the preamble of the Bill purports to restore the ancient free Constitutions of the burghs, the enacting clauses establish a system totally different from any that ever existed in those communities.
  2. 2. Because, the transference of the right of voting to the 10l. householders alone, is a manifest violation of those rights which the ancient law of Scotland recognized to the burgesses, into whose hands a simple repeal of the Act of 1649 would have thrown that power, which is now to be conferred on the parliamentary constituency.
  3. 3. Because, in order to abolish the system of self-election, it was not necessary to have recourse to this extensive innovation.
  4. 4. Because the power to elect the managers of the common good of the burghs, and of many of the charities therein, is conferred on persons having no right or interest in either, instead of having been bestowed on the 576 burgesses, who are parties legally interested in both.
  5. 5. Because the Bill has been brought forward in manifest ignorance of many most important matters, an accurate knowledge of which must be necessary, in order to enable Parliament to determine, in a final and satisfactory manner, on the mode in which the municipal councils of the royal burghs in Scotland ought to be chosen. This is virtually admitted by the framers of the Bill, who have advised his Majesty to issue a Commission with most extensive powers, embracing every matter connected with these communities, and especially the mode of election which ought to be adopted therein; and it would have been more consistent with justice and with common sense, and in every respect more convenient, as well as more rational, to have founded legislation upon inquiry, instead of deciding first and inquiring afterwards.
  6. 6. Because this Bill, recklessly invading chartered rights, and injuriously affecting long-established interests, on the gratuitous assumption that some such enactment is called for by popular feeling, forms a dangerous precedent, and is justified on principles inconsistent with the permanence of the chartered rights throughout the empire, and adverse to the true interests of the people.


(Earl of Haddington.)

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