Defects, &c. The most incompatible offices,' observe the commissioners, are often united in the person of the town-clerk. He very frequently acts as deputy recorder; which practice, in our opinion, cannot be too strongly condemned. He is often, practically, the principal attorney for the prosecution of offenders tried at the borough sessions, whose commitment he had previously advised in his cha-berlain. racter of clerk to the magistrates. Even when his name does not appear to the prosecution, the same evil often ensues from its being in the hands of his partner. In York and Hull great complaints have been made of the conduct of prosecutions by the town-clerk's partner, and in the latter place of the advantages which the rules of practice give him over other attorneys. In Preston the town-clerk is a member of the council, and his partner is the senior alderman, a magistrate, and a coroner. A strange incongruity sometimes appears in the election of the town clerk to the office of mayor in some places where this has occurred an attempt has been made to gloss over the irregularity, by appointing another town-clerk during the year of his mayoralty. Whilst the same officer thus unites the characters of judge and prosecutor, the selection of the juries is often entirely committed to his discretion, and it cannot be a matter of surprise that suspicions of unfairness and partiality should be excited. In the civil courts, likewise, when the recorder did not attend, the town-clerk became the real judge, from the incompetence of the other magistrates to perform the duty. At Reading,' say the commissioners,

often had the custody of the gaol. In many places the office |
had become entirely norainal; in others its original duties
had been superseded by those of treasurer, &c.
It was
sometimes filled by one person, oftener by two; at Ber-
wick it was vested jointly in five, by three of whom bailable
process must be signed. Their emoluments arose from the
same sources as those of the sheriffs; in some towns they
received a salary, in others they were remunerated by the
profits of part of the corporate property.

Criminal Courts.-A court of criminal judicature has been held until the present time in most of the boroughs of England and Wales, though in some this branch of jurisdiction has long been disused, and in others it has been of late but partially exercised, all serious cases being sent by many to the county sessions or assizes. Some of those which formerly exercised jurisdiction over capital offences had since abandoned it: others, as Salisbury, Southampton, and Chichester, still tried capital offences; but where capital punishment was expected to follow conviction, an arrangement was made to prevent a trial before the corporate authorities solely. Several corporations, as those of Berwick, Bristol, Canterbury, Exeter, and Rochester, still exercised their chartered power of trying and executing for capital offences. In a few instances the criminal jurisdiction included that of a court of admiralty; at Bristol, for example, felonies committed on a part of the Bristol channel were triable at the ordinary court of gaol delivery, not as at a court of admiralty, but as committed within the limits of the corporate county. At Marlborough, where the justices were nominated by the mayor, felonies were tried until 1824, when it was discovered that the corporation possessed no such jurisdiction.

mayor's court. Sometimes the bailiffs presided with the mayor; in other instances the recorder, and occasionally some of the aldermen were judges; in other cases the recorder, though a magistrate of the borough, was not a judge of the court of record; in many the town-clerk practically officiated as such. The officers of these courts were generally the town-clerk and the bailiffs or serjeants-at-mace. The town clerk usually performed all the duties, except those belonging to the office of sheriff; he issued writs, filed and enrolled the proceedings, granted rules, taxed the costs, and signed the judgments. The bailiffs or serjeants-at-mace performed the duties which, in actions brought in the superior courts of common law, devolved upon the sheriffs of counties. To them writs were directed; by them they were served and returned, and generally they were answerable, like sheriffs of counties, for any irregularity in the service. It must be understood, however, that the character of the officers described by these names varied in different boroughs; but in every court there was, under some name, a functionary performing these duties.

The borough courts of record, in their general constitution, resembled the superior courts of common law. Where created by charter, the proceedings were according to the practice of some one of the courts at Westminster. Being however seldom regulated by any printed or written rules, their practice was very ill defined, though in some few instances rules have been prepared and published, after approval, by the judges of assize. Suits were generally commenced, in case of serviceable process, by summons, and of bailable process, by capias. As regards the times of the returning of process, and consequently the period of obtaining judgment, the practice has been various. In many courts, precepts in the nature of writs were returnable, and the other steps in the cause were taken, weekly; in others, only every fortnight or three weeks. In contested cases, judgment could be obtained in few under six weeks; in general the period was longer. In some boroughs, as Bridgewater, they had adopted the short and improved forms of pleading promulgated by the courts of common law. In some the process was by distringas, or distraint of the defendant's goods, and venditioni exponas, or exposure to sale, in cases where the debt exceeded 40s. This was generally founded on affidavit of the debt; but at Berwick it issued without affidavit when the demand was under 157., and at Lancaster when it was under 408. At Preston, burgesses were exempt from this process. Several courts, as in London, Bristol, and Exeter, have had the custom of foreign attachment, by which a plaintiff may distrain the goods of his debtor in the hands of a third party within the borough, and in default of appearance, cause them to be applied in satisfaction of his debt. In Lancaster, only the goods of non-freemen could be thus attached. This custom, where existing, has been extensively used.

The ordinary criminal courts were those of general sessions and quarter-sessions. Courts of general gaol delivery existed in very few places: in some of these they were held under charter without any commission issuing from the crown, while in London, Oxford, and some other places, they were never held without such a commission: where no commission issued, the corporate magistrates were the sole judges; the time of holding these courts was sometimes discretionary with the corporate magistrates, sometimes regulated by the charter, as at Exeter, where they must be held four times a year, and in practice have been opened at the same time as the quarter-sessions. The general sessions, too, the ordinary criminal court of the cities and boroughs, seldom differed, as to the time and manner of holding them, from the county quarter-sessions. In all the corporate courts one or more magistrates were specially named, without whose presence the court could not be held; usually it was the mayor or the recorder, sometimes both. In some cases where the presence of the recorder was not necessary for holding the court, he did not attend, but in many the whole business was conducted before him. At Bristol he tried the prisoners at the gaol delivery, but did not attend the quarter-sessions, the prisoners at the latter being tried before the mayor and aldermen, but virtually by the town-petent to the discharge of judicial functions. The magisclerk, who there was necessarily a barrister.

The jurors were generally summoned from the inhabitants at large, without strict reference to any qualification; sometimes from the freemen alone. In the latter case, the number out of whom they were chosen was often inconveniently small.

In many boroughs no fund was provided for paying the expenses of prosecutions; in some they were paid from the county-rate; in others from a borough-rate in the nature of a county-rate; in others from the poor-rate. In many of the principal towns, as Liverpool, Leeds, Bristol, Hull, York, Newcastle, Berwick, the criminal courts were attended by barristers; but in most of the smaller places the business was conducted solely by attorneys.

Civil Courts.-A great majority of the English and Welsh municipalities possessed also a civil jurisdiction coextensive with the borough limits. These in general had their origin in particular charters, but occasionally existed by prescription. They varied considerably as to the nature of the actions they might entertain. In general they had cognizance of all personal actions; and in some instances of actions real, personal, and mixed. The amount for which such actions could be brought was often unlimited (subject to the power of removal), while in several cases it was restricted to the recovery of debts under a given amount. The presiding judge in these courts was generally the mayor, whence they were not unfrequently termed the

Defects of the Judicial Organization in general.--The corporate magistrates were often selected from a class incom

trates of one borough (Malmesbury) were often unable either to write or read; and at another, having extensive and exclusive jurisdiction, they have been known to sign blank warrants. Even where they have belonged to a superior class, they were often selected from the senior aldermen only, who, from age and infirmity, soon became incapable of performing the duties of their office, while a mistaken notion of dignity kept them from resigning it. All these evils were heightened by gross defects in other parts of the judicial system. The juries of the borough courts were often taken exclusively from the freemen, who, besides being of an inferior class, were strongly tainted with party-feelings. At Carmarthen, for instance, the commissioners show that verdicts were frequently given against justice, from party bias; and at Haverfordwest, where juries could only be impannelled from the freemen, they had been openly reprimanded by judges and magistrates for improper acquittals of burgesses on criminal prosecutions; and the general opinion was that it was impossible to convict a burgess.'

Closely similar were the defects in the administration of civil justice. The vicious consequences of the union of incompatible functions in the person of the town-clerk we have already pointed out. Here, too, the juries were often chosen from the same objectionable class as in the criminal courts; at Portsmouth they were selected by one of the ser jeants-at-mace, chosen out of two by the plaintiff's attorney; at Chichester they were summoned by an officer who was

one of the four nominal attorneys in court, the real attorney in the cause having the power of selecting the nominal attorney. The serjeants-at-mace and other ministerial officers of the court, exercising the functions of sheriff, were often persons whose pecuniary responsibility was inadequate to afford any security to the suitors. The costs of a suit were in general very considerable: those of a plaintiff often varying from 151. to 20%., of a defendant from 87. to 127. The whole system of costs and fees was objectionable; there was generally no authorized table of them, and frequently no well-defined practice; they were most commonly in the town-clerk's discretion, though in some places taxed by the mayor; they bore little relation to the services in respect of which they were paid, and no reasonable proportion to the average value of the matter in question. One cause among others which led to the disuse of these courts was the want of professional skill in the judges. Nor can we doubt that the intimacy which must often have necessarily subsisted between the judge and the parties appearing before him, was one source of disinclination to resort to these tribunals, at which a few minutes would convert the tradesman and the customer into the judge and the suitor. Another reason was, the facility of removing the causes, and the general inclination of legal practitioners to sue in the superior courts. When a plaintiff had procured execution, he could use it only within the limits of the local jurisdiction; hence his process was often fruitless, the defendant removing himself and his goods beyond the limits of the court. The unlimited power of imprisonment possessed by these courts was in some instances very oppressively exercised.

however granted, are repealed-except the jurisdiction and office of the lord warden as admiral of the Cinque Ports. Once in every quarter of a year, or oftener, at his discretion, or at his majesty's direction, the recorder is to hold a court of quarter-sessions for the borough, of which he is to sit as sole judge. It is to be a court of record, and have cognizance of all crimes, offences, and matters cognizable by any county court of quarter-sessions, the powers of which the recorder is to possess. But he is not to make or levy any county or similar rate, or to grant tavern licences, or exercise any of the powers specially vested in the council. In the absence of the recorder and deputy recorder, the mayor is to open and adjourn the court of quarter-sessions, at the proper times, and to require recognizances until a further day, to be proclaimed by him; but the mayor is to have no power to act as judge, or to do anything more therein than is above stated.

After the 1st of May, 1836, every person then committed for trial at any borough court, charged with any offence which the recorder will not then have jurisdiction to try, may be removed to the prison of the county, to take his trial at the next sessions or assizes.

Also, after the 1st of May, 1836, the justices of the county in which any borough, not having received the grant of a separate court of quarter-sessions, is situated, are to exercise full jurisdiction within such borough. But no part of any borough that shall have a separate court of quartersessions is to be within the jurisdiction of the justices of any county from which the borough was exempt before the passing of this act.

Every county gaol, house of correction, or lunatic asylum, court of justice, or judge's lodging, which at the time of the passing of this act was for any purpose taken to be within a county, is, for all such purposes, still to be so taken, although included within the limits of a borough as defined by this act. Civil Courts.-In every borough in which, by charter or custom, there is or ought to be held a court of record for the trial of civil actions, not regulated by any local act, or in which, at the time of the passing of this act, a barrister of five years' standing did not act as judge or assessor, the recorder, or in his absence, or if there be not one, such officer of the borough as, by charter or custom, is the judge of the court, is to continue and act as such. The council, in every case, is to have the power of appointing the necessary officer, if he be not the recorder; and every such judge or assessor, except he be the mayor, is to hold his office during good behaviour. And he is to hold his court at such times and places, and with such rules of practice, and with the same powers and jurisdiction, as before the passing of this act.

One general observation remains to be made on the judicial powers lately exercised by the municipal corporations of England and Wales. Their extent was wholly disproportioned to the importance of the town or the probable respectability and intelligence of its magistrates. In Bath, for instance, with a population exceeding 50,000, no felonies could be tried, but all must be sent to a distance varying from eighteen to fifty miles; while in Winchelsea, with a population of only 772, and in Dunwich, with only 232, the jurisdiction included capital felonies. Nor was the condition of concurrent or exclusive authority more correspondent to the relative importance of the respective places, or to the principles of expediency arising out of their situation and their means of communicating with the seat of county jurisdiction. The grant of exclusive power seems either to have depended entirely on accident or caprice, or to have been determined by circumstances which have long ceased. Many corporations have disused the jurisdiction conferred by charter; generally from unwillingness in the corporate magistrates to undertake the responsibility attending its exercise. On the other hand, many of the evils above The authority of any such court, in which a barrister of enumerated in the administration of criminal and civil five years' standing shall act as judge or assessor, is to be justice have resulted from the continuance of jurisdiction extended (if it have not already such authority) to the trial after the decay of the borough. In many instances, the of actions of assumpsit, covenant, debt by specialty or on limited population has precluded the possibility of finding simple contract, trespass or trover for taking goods and competent persons to act as magistrates, even in petty chattels, if the damages sought shall not exceed 207., and sessions, although a sufficient number might be found ca- of ejectment between landlord and tenant where the annual pable of superintending the police, and the paving, light-rent shall not exceed 207. without any fine. And any such ing, &c. of the town. Even in the more important bo- judge may make rules, from time to time, for regulating roughs, great injustice resulted from intrusting the powers the practice of his court, which rules are not to be in force of sitting as magistrates in quarter-sessions, and as judges till allowed and confirmed by three or more judges of the of civil procedure, to persons without professional knowledge superior courts of common law at Westminster. The jurisand experience. diction of such court is to extend to the bounds of the borough under this act. But no action is to be tried by any such judge, wherein the title to land or any other tenure, or to tithe, toll, market, fair, or other franchise, shall be in question, in any court which, before the passing of this act, had not authority to try actions respecting such titles.

Notwithstanding all the defects of the local civil courts, the commissioners bear marked testimony to the general desire of the inhabitants for their continuance or revival. 'Any system,' say they, which would have the effect of distributing justice where the parties interested reside, would be regarded as one of the greatest boons which the legislature could confer.'

Borough Courts under the Reform Act of 1835. Criminal Courts.-After the 1st of May, 1836, all criminal powers and jurisdictions whatsoever, and however granted to any corporate or chartered officer or justice in any borough, and all right to elect or nominate any justice of the peace for the borough, or to act as such, other than as is provided in this act, are to cease. But any court now held in and for any borough may be held as usual, till the 1st of May, 1836. On the passing of this act, all claims whatsoever by boroughs, or their freemen or inhabitants, of exemption from the jurisdiction of the Court of Admiralty, or of possession of any such local admiralty jurisdiction,

The council of every borough in which a court of record as above shall be held is to appoint a registrar, except where the town-clerk acts as registrar, and other officers and servants to carry on the business and execute the process of the court.

Juries. Every burgess of a borough having a separate court of quarter-sessions or of record is to be qualified and liable to serve on grand juries, and on juries for the trial of issues in such court (unless exempt or disqualified, otherwise than in respect of property, under the Act of 6 Geo. IV. cap. 50). But no person is to be summoned as a juror oftener than once in one year. The burgesses of every borough having a separate court of quarter-sessions are to be exempt from serving on juries at any sessions for the county. After the passing of this act, no person in any

VOL, V.-2 F

borough is to continue exempt from serving on juries by | feeling was said to prevent the prosecution of criminals. virtue of any grant, charter, or other special exemption; | Where the corporate bodies have had the means of imand so much of the Act of 6 Geo. IV. cap. 50 as continues proving the state of the gaols, their neglect, as the commissuch exemption is repealed. sioners remark, admits of no palliation; but many, they state, were unable to defray the expense of more suitable places of confinement-another illustration (we may observe) of the evil of perpetuating the machinery of local judicature in a town too decayed to support it.

Fees.-The council of every borough which shall have a separate court of quarter-sessions, or a commission of the peace, or a court of record, are to make and settle, within six months after their election, a table of fees to be taken by the clerk of the peace, the clerk to the justices, and the registrar and officers of the court of record; and such tables are to be submitted to one of the secretaries of state, to be conformed with or without alterations, as he shall think proper. The council may from time to time make new tables to be conformed, as above directed.

Penalties and Prosecutions.-All penalties recoverable in a summary manner, and by any act made payable to the king, to a body corporate, or to any person whatever, except it be the informer or some party aggrieved, are, if recovered before any justice of a borough having a separate court of quarter-sessions, to be adjudged to be paid to the treasurer on account of the borough fund, and to no one else; exeeption being made of all penalties or forfeitures recovered under any act relating to the customs, excise, or post-office, to trade or navigation, or to any branch of the king's revenue. The prosecution for any offence punishable on summary conviction under this act must be commenced within three months after its commission.

The justices before whom any person shall be summarily convicted are to cause the conviction, under their hands, to be drawn up according to a form prescribed in this clause of the act; setting forth the names of the justices, with the date and place of the conviction, the name of the offender, with the time, place, and nature of the offence, the amount of the penalty, and the time fixed for its payment to the treasurer of the borough. It is expressly enacted that all offences committed against any bye-law or regulation made by virtue of this act, are to be punishable on summary conviction in like manner. Provision is made for appeal from such conviction to the next court of general or quartersessions that shall be held after the lapse of twelve days, and for the offender's liberation in the interim, on entering into a recognizance with a sufficient surety to appear personally at the sessions. But no conviction, order, warrant, or other proceeding by virtue of this act is to be quashed through mere informality, nor removed into any of the courts at Westminster.

The new municipal system is calculated to obviate the flagrant and often revolting evils of the old regulations respecting borough gaols and committals. It makes uniform provision for the transfer of prisoners to the county gaol when destined for trial at the county sessions or assizes; and such of the boroughs as are too inconsiderable for the due support of a local court and prison will now be brought entirely under the county jurisdiction. To facilitate the providing of more commodious places of confinement, it is directed in the act, that if it be satisfactorily shown to one of the secretaries of state that there is in any other borough a gaol or house of correction fit for the confinement of prisoners, the municipal council may contract respecting them with the parties having control over them, as they may with the justices of the county; also, to prevent another of the inconveniences which we have indicated above, that of the repeated removal of prisoners, if the borough containing such prison have likewise a separate court of quarter-sessions, offenders committed to such prison may be there tried and sentenced for all offences of which the court has cognizance.

Coroner.-Under the old borough system the exercise of the important and delicate office of coroner was most defectively provided for. In many boroughs the mayor or other head of the corporation was coroner ex officio, in others the bailiff or town-clerk. When a separate officer was appointed to this function, the election was generally in the common council. His duties and his emoluments were the same as those of a county coroner. In most places he was not required to be either of the legal or the medical profession, and often he was an inferior tradesman.

Henceforward, the council of every borough wherein a separate court of quarter-sessions shall be held, are, within ten days after receiving the grant of holding such court, to appoint a fit person (not being an alderman or councillor) to be coroner of the borough, who is to hold the office during good behaviour. The council are also to fill up any vacancy in it occasioned by death, resignation, or removal, within ten days after it shall have occurred. No one is to take any coroner's inquisition within such borough but the coroner of that borough. For every inquisition he is to retravel from his residence to hold any inquest, to be paid out of the borough fund. He is to transmit to one of the prin cipal secretaries of state on or before the 1st of February in every year, a return in writing of all the cases in which he may have been called upon to hold an inquest during the year ending on the 31st of December preceding. But in any borough in which no separate quarter-sessions shall be held, no person is to take any coroner's inquisition but the coroner for the county or district in which such borough is situated, who is to be entitled to such fees and salary as would be allowed for any other inquisition taken by him within his own county.*

Guols. In nearly all the boroughs having criminal jurisdiction are gaols which have been under the superintendence of the corporation or the municipal magistrates.ceive 20s., as also 9d, for each mile above two that he shall Their expenses were defrayed, in some cases, from the corporation funds; in others, from a borough-rate; in others, from the poor-rate. In many boroughs the same gaol was used indiscriminately for criminals and for prisoners committed by the civil court. In some few the poor debtors, while confined, received a small allowance from the corporation. In those where the municipal magistrates committed to the county gaol, the borough gaols were used only for temporary detention. Sometimes prisoners were committed at once to the county gaol until trial, brought back for trial to the borough sessions, and finally sent again to the county gaol to undergo their punishment. But debtors taken under process from the civil court must remain in the borough gaol.

view, it remains for us to notice briefly the principal steps of transition by which this entire change is to be arrived at.

In the view which we have here taken of each distinct feature of the municipal system, both as it has been, and as Defects, &c.-The state of the borough gaols has fur- it is to be under the Reform Act of 1835, we have sought to nished additional proofs of the evils of continuing the late compare and contrast, as far as our limits would permit, constitution of the local tribunals. They have rarely ad- the internal state of the boroughs as it lately was with that mitted of any proper classification of the prisoners. In which they will assume when the new regulations shall be some large towns, as Berwick, Southampton, and South-brought into full operation. To complete our historical wark, they were found in a very discreditable condition: in many of the smaller ones, they were totally unfit for the confinement of human beings,' often without sufficient air and light, frequently mere dungeons under the town-hall. In such receptacles it was impossible to set a prisoner to work, or to separate the criminals from the debtors. Felons might often be committed to the county gaol when the borough gaol was in an unfit state; but as this power did not extend to prisoners committed from the civil court, debtors might be lodged in places of confinement thought unfit for the reception of criminals. It was frequently stated to the commissioners that the gaol of the borough was in so notoriously improper a state for receiving prisoners, that plaintiffs were unwilling to consign to it defendants against whom they had obtained execution. At one place the same

The provision of the act which will the longest retard the complete extinction of the old system is that which regards the reservation to a certain extent of the inchoate or latent rights to the acquisition, or the conveyance by marriage, of the old borough freedom. These rights, by birth, marriage, and apprenticeship, present or latent, are reserved to all persons having any share in them at the dissolution of the old corporations, in so far as regards their claim, by charter, law, or custom, to a portion in the real and personal estate, the rents and profits of any borough, or in any cha

of the justices, courts of quarter-sessions, and coroners, of the Cinque Ports, For the regulations made by the act as to the local limits of jurisdict on

see CINQUE PORTS.