ART. XI. Documents connected with the Question of Reform in the Burghs of Scotland. Edinburgh, 1817.

THE question, respecting which some material documents have been collected in the publication before us, has lately excited, and still continues to excite, a very lively interest in this part of the kingdom. The Constitutions, or Sets, as they are termed, of our Royal Burghs, which regulate the election of their Magistracy, have been long deemed disgraceful to the country,an exception to its general advancement,-inconsistent with the enlightened principles of its public law,-utterly indefensible upon any views of expediency,-and actually productive of the greatest abuses. About thirty years ago, in particular, the evil, which was almost everywhere acknowledged, having at last attracted the notice of Legislature, inquiries were set on foot, that seemed to promise a beneficial and satisfactory result. But the expectations then raised were soon disappointed by the occurrence of other events, and other questions of infinitely greater moment, which, during a long interval, left most men no leisure to feel, and rendered many indisposed to redress, such grievances as we are now to consider. It was natural, however, when the agitation of Europe had subsided, to look homeward, and to think of employing the season of tranquillity in forwarding the great work of domestic improvement. In this situation, several circumstances have recently combined to revive the scheme of Burgh Reform, towards which some progress had formerly been made.

The constitution of Montrose, though not remarkably defective, had given great dissatisfaction to its Burgesses; and a slight alteration it had received, was far from bringing it to correspond with their wishes: So that, when an application to the Privy Council became necessary, owing to the reduction of the election of its Magistrates for 1816, it was thought expedient by all parties to petition, not merely for a Warrant of Election, but also for a Reform of the Set. The petition was granted, the constitution being on that occasion remodelled, and a poll appointed for the election of the new Council and officers. While this measure, which had been adopted by the advice of the Crown lawyers, seemed to indicate, on the part of Government, a very sincere desire to amend the constitution of the Burghs, the prevalence and magnitude of the abuses became every day more apparent. The affairs of Aberdeen, just about this time, fell into the utmost confusion and embarrassment. That Burgh, which had embarked in speculations of great extent, and contracted enormous debt, was declared insolvent ;

and seventeen members of the Town-Council, who retired in September 1817, frankly ascribed all these misfortunes to the faulty constitution of the Burgh, and the want of an efficient and public control over the Magistrates. Many other towns of less note were undeniably in the same state; and the finances of this city even, notwithstanding its large revenues, were reported to be falling rapidly into a very desperate condition.

It is not to be wondered at, that these, and similar effects of maladministration, on the one hand, joined to the success of the citizens of Montrose, upon the other, should have occasioned a very general sensation, and renewed, with increasing strength, the demand for Burgh Reform, which there now seemed to be some prospect of attaining. But though the old system was in most burghs openly denounced by all the inhabitants and burgesses, with the exception of those who found a direct interest in maintaining it; and though, in many places, the Magistrates themselves, by seconding the Burgesses, declared, in the most disinterested and unequivocal manner, the necessity of remedy, an important change appears to have suddenly taken place in the opinions of Government and its advisers. A poll election, which had been granted in the case of Montrose, has been since refused to Aberdeen; where the magistracy was lately renewed, by a warrant of very questionable legality, addressed to the former Magistrates. This warrant cannot but be regarded as an intimation, that the cause is now less favourably considered; especially since some preparatory steps for a general discussion of the subject met with strong opposition in the House of Commons, even from those who were constrained so far to acknowledge the misgovernment of the Burghs, as to introduce a bill for the purpose of increasing, in some respects, the responsibility of the Magistrates, and for bringing them more easily to account. So feeble an expedient, however, proposed in such circumstances, has not stopt complaints, of which it would be altogether inadequate to remove the grounds; and the denial so strangely hazarded, that any discontent existed here respecting the Burghs, only showed to the people the necessity of demonstrating their sentiments by public resolutions. From all these causes, there has been called forth an expression of opinion very unusual for Scotland, and not less decided than general; and we think it our duty to avail ourselves of some of the materials furnished in the pamphlet before us, for the purpose of stating the nature of the grievances against which remonstrances have been made from so many quarters.

Here it will be proper to guard against any misapprehensions

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that may arise from the jealousy with which recent events have made the very word Reform to be viewed, by stating, that the measure to which we would now direct attention, is not immediately or necessarily connected with the great and formidable subject of general Parliamentary Reform. It is no doubt unfortunately true, that, in this part of the island, the representatives of the burghs are not chosen by the inhabitants, or even by the burgesses; and that the Magistrates and Town Council constitute the whole body of electors. But it is no part of the project of Burgh Reform to make any alteration in this respect, however desirable. It is only proposed to amend the constitution of the Town Council and Magistrates, by placing the election of these officers on a more liberal basis, and readmitting the burgesses to the natural enjoyment of their rights, as members of the body corporate. Such a change would, no doubt, ultimately affect the parliamentary representation of the burgh; but the most scrupulous and indiscriminating stickler for establishments cannot, we imagine, pretend that the experiment is accompanied with any hazard, or that the slightest danger could possibly arise to the constitution of the country. We are certainly inclined to think, that the extension of the elective franchise, and the introduction of a much more popular representation than we at present directly or indirectly enjoy, would be of infinite advantage to the people of Scotland: and to this topic we may afterwards recur. But we notice it now, merely for the sake of keeping the two questions distinct, and preventing the consideration of one from being affected by those prejudices that are unhappily peculiar to the other. We have nothing to do here with the constitution of the House of Commons-with the measure of representation-the qualification of electors--or the mode of election. The internal government of the Royal Burghs is the only subject of the following remarks; and, in our opinion, it is impossible to consider their history, and their present situa tion, without acknowledging that there are many reasonable causes of discontent, which ought to be removed by a general and adequate reform,

It is not necessary for our present purpose to engage in any antiquarian research respecting the origin of the Royal Burghs, or to trace their progress with minuteness. It is well known that they are corporate bodies, erected by Royal Charter, or ultimately depending on possession, which is by law referred to Charter; endowed with common property, sometimes to a very large amount; gifted with ample privileges in trade and manufactures; and invested with important jurisdiction. A burgh, with us, is generally an aggregate Corporation, comprehending within it

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 difference. On the south of the Tweed, the law seems 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 office-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 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. 139.

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 renewedan 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 history. 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 them. 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 off