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several subordinate corporations,—such as the Guildry, or Company of Merchants, and various Crafts or Trades. In one or two instances, however, the Burgesses are not subdivided into distinct corporations. In all cases, the Burgh is governed by a Provost, Magistrates and Council, varying in number according to the terms of their Charter, or the local usages by which these may have been subsequently modified. So far there seems to be nothing peculiar in the constitution of the Scotch Burghs: they are precisely similar to those of England. But, in the circumstance now to be observed, there is an essential difier
On the south of the Tweed, the law scems to consider the Magistracy of the Burgh,--the Mayor viz. and Aldermen, &c. as forming, along with the Burgesses, integral component parts of the general corporation; without which, of course, it cannot subsist: And it seems to have been lately recognised there, that upon the failure of any of those parts, the Corporation itself is lost and dissolved, and can only be called into existence by a new Charter. In the case alluded to, the dissolution was accounted so complete, that the Courts sustained the validity of a Charter which was granted, not to the old body, but to a set of men whom it did not even include. In this country, however, the law has followed quite another course, though it is not perhaps very easy to account satisfactorily for the difference, nor worth while to attempt the task here. The Magistrates, with us, the Provost namely, and Bailies, as well as the Council
, are not considered as integral parts of the general corporation. They are viewed merely as its ofiice-bearers and organs, empowered to exercise the jurisdiction conferred upon it, to protect its privileges, administer its common funds, and generally to possess and exert all those rights which belong to the body corporate as such, and cannot be enjoyed by its members as individuals. The old Charters, where they have been preserved, seem to have been usually granted in favour, not of the Magistrates, but of the Burgesses generally; and though, in late renewals of these Charters, it seems to have been not uncommon to make the former, as well as the latter, grantees, the law has always considered the Magistrates to be merely the servants and functionaries of the Corporation, of which the Burgesses are the proper constituent members.
This last view seems to be the more true and natural of the two. But, at all events, whatever may have been the principles on which it has been adopted, we apprehend it has been stated correctly; as is evident indeed from two circumstances, that may be simply referred to, among many others. When
* Rex v. Passmore, Termly Reports, vol. III. p. 199.
the Magistracy and Council of a Burgh fail, from an omission to elect, or from an illegal election, the Court of Session is in the practice of appointing interim managers or factors to superintend the affairs of the Burgh, till its office-bearers are renewed an appointment which plainly implies that the Burgh continues to exist, and to retain possession of all its privileges. But what still more directly sanctions the same conclusion is, that, after such an event as we have here supposed, a new charter is neither requisite, nor in use to be granted. The remedy is not, as in England, a charter of restoration, but a warrant of election from the King in Council, which, instead of reviving the Burgh, obviously presumes its existence, and merely enables it, by a new election, to recover its magistracy, or supply its deficient officers, We shall afterwards find reason to conclude, that the Burgh has a right in law to obtain such a warrant, and that the remedy in this respect differs essentially from a new charter, since it cannot be legally or constitutionally withheld. But without going further at present, we think ourselves entitled to assume, that the Burgesses alone are the proper members of the Burgh, and that the Magistrates are none of its component parts, but merely necessary for the maintenance and exercise of those rights, whether of jurisdiction, trade or property, of which, as individuals, the Burgesses can have no possession.
As might have been expected, from the account which we have now given, it appears certain, that the Magistrates and Council being merely the office-bearers and organs of the community, were originally elected by the Burgesses themselves. The qualifications of the electors and elected, may possibly have been different in different places; the Magistrates may have varied in number: but there can be no doubt that they derived their authority immediately from the citizens, and by virtue of a popular election. This is a fact, which we are not left to infer from the charters of the Burghs, the nature of their constitutions, or from obscure and imperfect notices of hist The Burgh laws, and other ancient evidences, leave no room to doubt that the Magistrates were appointed by the free suffrages of the Burgesses, who are sometimes termed the community,' and sometimes the good men of the town.' Without stopping, however, to examine these sources of information, it seems better at once to refer to the statute, 5. James III. cap. 30, which sufficiently establishes the ancient practice, by the very alterations it introduces, and the reasons it assigns for thiem. `In its preamble, it narrates the pernicious consequences, whether real or imaginary, of a popular election; and goes on, among other things, to enact, that the old council should in future chuse the new, and both together the Magistrates and oflicers of the Burgh. There are some other provisions in the statute; but it is immaterial to attend to them, as they are now no longer in observance, being either abrogated by subsequent acts, controlled by an inconsistent practice, or gone into desuetude. This statute, passed in 1469, thus radically subverted the mode of election in all the Burghs, stripped the Burgesses everywhere of a franchise they had till then exercised, and forms the basis of the present practice, by which the Town-Council and Magistracy chuse their own successors.
What may have been the original policy of the statute, or the
purposes it was intended to eflect, we are hardly in a situation to decide. It was passed in the minority of James III, -a period during which the materials of Scottish history are extremely scanty. The circumstance best ascertained is, that his government was at once weak and arbitrary; and there seems little reason to doubt, considering the general course of his administration, that the rights of the Burghs were sacrificed to advance either the power of the Crown, or that of the great Lords. It may have been, that the ministers of James discovered the advantage of concentrating, in a few hands, the rights which had been exercised by the Burgesses at large-a measure which vastly increased the power of the Croiyn over its Burghs, by lessening the number of those who were to be gained or intimidated, and by ensuring the continuance of an influence that was once established. Or, perhaps, it is a better explanation to say, that the nobles, profiting by the character and situation of the government, took that method of extending and securing their own authority over the Royal Burghs, which was an object of the greater importance, that the Burgesses haul been, long before this date, summoned to Parliament. The latter view may be thought, perhaps, to derive some plausi"bility from the frequent complaints that occur in the statute-book against the influence of strangers, and the various enactments made for the purpose of forcing such men only to be elected into the magistracy as were resident in the burgh, and substantially interested in its good management and welfare. But, however we may be disposed to account for the statute, it is evident enough that the good of the communities was not immediately consulted. The evils of a poll election might have been obviated in a much less exceptionable manner than by the introduction of a change, which, in truth, destroyed the freedom of the burgh, and placed its interests, almost irrecoverably, at the disposal of any faction that could once sụcceed in obtaining possession of the government.
Like most other ancient Scots acts, the statute of James laid down only a general principle, leaving the modes and, in some degree, the measure of its application, to be regulated by usage, by the agreement of the parties theinselves, or by the competent courts. Hence it has happened, that the manner in which the Town-Councils elect their successors in office varies considerably in the different Burghs; the Burgesses or minor corporations in some having apparently more power and influence than in others. In all of then, however, the existing Council has a complete control, more or less direct, in the choice of their successors; and in this way, under the authority of the statute of 1469, there has grown up, in all the Burghs of Scotland, a system by which the Burgesses are effectually excluded from any share in the choice of their magistracy, and by which one little junto, though miserable in point of talents, and displeasing to a great majority of their fellow-citizens, is enabled to command the government of the town, to perpetuate their friends in office, and to set in a great measure at defiance, the opinions and sentiments of the other members of the Incorporation. Did our limits permit us, or were it proper, in this place, to enter into such details, it might be curious to examine the various sets and
constitutions that have thus arisen ; which termis, it will be remembered, signify the forms and details of the elections, or the deeds in which these have been fixed or recorded. All of them present a very complicated machinery, of no conceivable utility, and absurdly intricate and puzzling in its operation. The election generally lasts for several days; and the choice of the council and magistrates is made after a series of checks and counter checks,-several nominees being usually made for each office, and a sort of negative exerted on this nomination, previous to the ultimate election. It were of very little consequence to inquire, whether such a system came to be adopted from the idea that the exercise of a power of veto and selection insured the choice of the persons best qualified, or from a desire to conciliate the burgesses and subordinate corporations, by indulging them with some apparent share in the election of their own magistrates. Whichever of these theories be received, it is a certain fact, that the burgesses in general have no efficient control over the election, and that a party or interest being once established in the burgh, can scarcely be removed from its administration, however disagreeable to the citizens at large, and however unsatisfactory their conduct.
Such appears to be the history of the Scottish Burghs. The Burgesses were originally the electors of their own magistracy. They were deprived of that right by an act of Parliament in 1469; and, since that period, they have never recovered their franchise, but continue to this hour to be govrened by Magistrates and a Council, in the choice of whom they are without a voice. Nay, to such an extent has the system of exclusion proceeded, that the subordinate corporations are not even entitled to elect their own heads. In those burghs that include a guildry and various trades, which is the case with the most considerable burghs, the heads of these societies, namely, the Dean of Guild, and the Deacons of the Trades, are generally constituent members, in whole or in part, of the Council. For this reason, these office-bearers are not elected by their respective companies, but are chosen, indirectly indeed, yet ultimately by the Town-Council, in order to preserve inviolate the rule, that the old Council should chuse the new, We have mentioned this instance, which is a very general one, in order to show the internal government of the Burghs, as they now exist, and the degree to which the power of election has been narrowed and restricted in favour of a few individuals, though to the evident infringement of the rights vested not only in the Burgesses in general, but in the various Corporations into which they are distributed.
The disadvantages resulting from such a system, and the expediency of restoring to the Burgesses the right of election, seem to be in themselves so obvious, that they can only be denied by the persons, of whom there must always be many, who find their own interest in defending an order of things that may be hurtful to the community. It seems really almost impossible to consider the subject in any light, that does not show the mischiefs which must be occasioned by such a monopoly of power. One of the views that most readily suggests itself
, is the importance of the Council and Office-bearers of a Burgh, considered as a part of the general police of the country. Perhaps there is no better way of 'managing the affairs of a town,—of providing for the accommodation, comfort and safety of its inhabitants, and generally of regulating its whole internal government,-than by an active and intelligent Magistracy chosen from among the inhabitants. Such men must be besť acquainted with the necessities of the place, and be able most correctly to judge how they can be effectually relieved; while their own iminediate interest, and an honest desire of meriting the approbation of their fellow-citizens, cannot fail to stimulate their exertions. Such a magistracy, however, can only be obtained, by suffering the voice of the community to be heard freely in their election; and no scheme can be figured more inexpedient than to render them indepen