Charles Sparrow QC 1973 and 1991

1. Claiming freedom otherwise than through a father.

I am of opinion that, as a general principle, freedom by birth may be established through a grandfather or other ancestor more remote than a father. And I consider that freedom as a “son of a freeman” is available in the same way.

At the outset it seems to me important to reflect that, in every place, one is dealing with a matter of custom, which will have been for most of its history and may still be unwritten.

In my view, therefore, great caution should be exercised in the use of any particular verbal description of freedom by birth. I consider it crucial to find the idea expressed in the words currently used to express the idea.

Again, I think it would be mistaken to approach the test of birth as though it were merely a personal qualification under a modern set of club rules. Freedom by birth is, in my view, an inherent local right of family inheritance. On the former view, the individual makes his position entirely on his own standing or simply falls. On the latter view, there is in claim a pre-existing right of property, for which one would naturally presuppose a descent to somebody.

Further, I believe that it is necessary to observe with care a distinction which has become blurred in legislation. Section 261 of the Local Government Act 1933 dealt in one with admission to freedom for “birth servitude or marriage”. Now servitude and marriage are naturally, it seems to me, the subject admission procedure, for they are optional qualifications which the individual may acquire, during his life, and should formally prove. Patrimony, however, is something which is fixed at birth and unalterable. Thus I am of opinion that, in law, a person qualified for freedom by birth is a freeman always, though local custom may and statute will oblige him to undergo an admission ritual and even make his enjoyment of proprietary benefits conditional upon admission. I believe that this view of the law, which I regard as the correct one, is reflected in the notes to Section 259 of the 1933 Act, appearing in Halsbury’s Statutes 3^rd Edition, Volume 19 page 548, where it is stated: “Freedom of a borough could be obtained by being born the son of a freeman…or by admission”.

I am very firm in this opinion for it seems to me that the essence of the freedom has always been that it may come to a man as his birthright, which no other man may deny him. Its value in history was that, for the freeborn, freedom had not to be sought and could not be withheld. The moment of birth was decisive.

With these principles well in mind, I come now to examine the qualification for freedom by birth.

This has often been expressed as the qualification of a son of a freeman. I see no great harm in this way of expressing the qualification provided we remember that one of the ordinary meanings of the word “son” is “male descendant however distant” (see Johnson’s Dictionary). This usage is found in both Chaucer and Shakespeare and may be traced back as fear as the Lindisfarne Gospels.

I consider therefore that, as a matter of language, the word “son” is susceptible of a meaning which would comprehend grandsons, of all degrees. Certainly, the word cannot, in my opinion, be construed as necessarily exclusive of such persons. I am further of opinion that, as a matter of law, it should have, in effect, an inclusive interpretation. I reach this conclusion by two roads.

First, as I have indicated above, it seems to me that, in principle, the son of a freeman is a freeman at birth, though he might by custom have to perfect his title by attaining his majority or undergoing a ceremony. Any other view would, in my opinion, be fundamentally contrary to the concept of freedom by birth. It is, to my mind, crucial to this concept that freedom comes to a man as his birth-right. Local statements of custom must, I believe, be read subject to this general and basic principle.

It follows, in my opinion, that principle requires that the freedom shall pass through ancestors who have not themselves taken steps to prove their status or enjoy its advantages.

I am quite sure that the statutorily prescribed admission procedure has served to fog the true nature of freedom by birth. This procedure is a modern imposition upon custom. I have already referred to the compendious language of Section 261 of the 1933 Act, which equates freedom by birth servitude and marriage. I think it most significant that the equivalent provision, Section 204, of the Municipal Corporations Act 1882 began “Where a person is entitled to be admitted a freeman for the purposes of this Part in respect of servitude or marriage…”. This wording, shows, correctly in my view, that the prescribed admission procedure is for statutory purposes only. Unhappily, the words which I have underlined were simply dropped from the 1933 Act; and a misleading impression has been established for the last 40 years.

In my opinion, freedom by birth passes to a man’s descendants and it does so by inheritance not by act of parties (see Mayor of Lincoln v Holmes 2 Q.B. 482 at 483 and 489). Thus, it follows, in my opinion, that male descent from a freeman is, in principle, all that is required.

I come to the same conclusion by another way. It is a general incident of descent at common law that there should be representation, namely the right of a descendant to stand in an ancestor’s shoes (see Watlins on Descents pages 94 and 96). This rule applied to customary tenures such as gavelkind and copyhold (see Elton on Copyhold 2^nd Edition 145). The correct approach is to ascertain the relevant custom and then apply all the rules of descent to the custom so ascertained (see Hook v Hook 1 H and M 43 at 47). The freedom is a considerable legal right and, in my opinion, appropriate to attract the rules of descent.

In my opinion, therefore, any male descendant is qualified to claim by birth from an admitted freeman.

Finally, I derive support from analogy in law of the peerage, which also follows, in general, the common law of descent. It is a peculiar incident of the peerage that a second title may be accelerated during the lifetime of a holder of the first title. This can be expressed, with fair accuracy, as the right to accelerate, during the life of the holder, “to his eldest son”. It is, in short, a benefit available to “a son of a peer”. However, it is clear that the rule may in fact operate, in favour of the son’s own son (see Palmer on Peerage pages 129 and 130). Here therefore, is another rule of accession or descent expressed by reference to status as a son which in truth extends further than sons in the narrowest sense.

The freedom is inescapably custom of a local nature. It is, I think, possible that, in a particular place, the custom may be so limited that the freedom can pass, by succession, only from an admitted freeman direct to his own son and local statute may have the same result. If a custom truly is very precise in its effect and, for example, excludes the right of representation, then it may have to be so applied (see RE Smart 18 Ch.D.165). But, for the reasons outlined at the beginning of this Opinion, I should myself require to be most exactly satisfied that a particular local description of freedom by birth was accurate and ancient and truly had an effect contrary to the essential nature of such freedom and contrary to the rule of representation. Failing such a conviction, I should regard the freedom as descending simply according to birth and without limit, so that freedom by birth (or as “a son of a freeman”) would be available in right of an ancestor in the male line, however remote.

This approach would, incidentally, conform in every way with the use of the expression “freeman in respect of birth” in the 1882 and 1933 Acts and the words “by descent” in the 1972 Act. I am of opinion that the statutory procedure under section 248 of the 1972 Act should be operated in accordance with this approach.

• Births outside of the Borough boundary

Some boroughs now have no maternity hospitals; and I gather that an idea has taken hold that, if a child has been delivered outside the borough, that child is necessarily ineligible for freedom by birth within the borough. The idea is, in my view, quite wrong. I am of opinion that a child conceived within the borough is eligible for such freedom, though he may be born (in the sense of being delivered) outside the borough.

There is a very well-established legal principle that a benevolent construction will be put upon the word “born”, so as to equate it with “conceived”, where this would secure for the child a benefit which would otherwise be lost. The rule manifests itself in several important branches of the law; and I see no reason why it should not operate in relation to the freedom. The general interest of the borough is relevant to the interpretation of local custom as to the freedom (see R v Jones 2 T.R. 1at3). It must be in the interest of a borough that the freedom, or an important element of it, should not peter out as the result of such administrative reorganisation.

Accordingly, I am of opinion that conception within the borough is sufficient to satisfy a requirement of birth within the borough is sufficient to satisfy a requirement of birth within the borough, where this is applicable; and for this purpose it seems to me that the test should be a broad one, namely, whether at the time of the commencement of pregnancy the parents were resident in the borough. A precise inquiry as to the moment of actual conception is not, in my view, necessary or appropriate, save in the rare borderline case.                                                                      Charles Sparrow, Lincoln’s Inn, 6^th August 1973.

THE FREEDOM OF SUDBURY, SUFFOLK (OPINION)

I have formed the opinion that the Babergh District Council, as successor to the Sudbury Borough Council, has power under the Sudbury Charter of Charles II to amend the freedom regulations, so as to authorise the admission of a woman by birth, as daughter of a freeman.

The relevant provision appears on page 22 of the 1830 print of the Charter. It gives power to make “Ordinances and Statutes for the public good and for the better ruling and governing of the said Borough of Sudbury and of the Men and Inhabitants of the same.”

This language is very broad and wholly accords with the recital that the Crown was willing that the Sudbury Borough corporation should be “armed and endowed with powers, privileges convenient as well for the due correction and amending of evils and inconveniences, as for the good and better regiment of the same Borough.”

The provision on page 22 stipulates that such statutes and ordinances shall not be “contrary or repugnant to the Laws and Statutes of our Kingdom of England.” Plainly, there can be no infringement of an Act of Parliament. Otherwise, it seems to me that what is prohibited is a conflict with positive regulations of the common law. In my view, it is not objectionable to exercise the power where statute or common law is silent, I am further of opinion that the freedom, being purely local in its ambit, is susceptible to this power to make “statutes and ordinances”, a very strong expression, for the “ruling and governing”, another strong expression, of the Borough of Sudbury.

Accordingly, I take the view that the Council can, pursuant of the Charter, amend the regulations governing the freedom of Sudbury. The proposed amendment would, of course, be within the spirit of public general legislation in force today.

It seems to me, important to bear in mind that the freedom, as a feature of English law, does not manifest any general bar against women. It is also important to recall that admission by descent is not the only mode of admission. Originally, the freedom could be obtained by descent, apprenticeship, gift, and purchase. This combination obviously does not import any general disqualification of women. It is also to be remembered that widows were commonly permitted to succeed to freeman’s rights, held by their deceased husbands. In York, women were even admitted by descent.

Thus, descent was merely one avenue, among others. Descent in English law is in the male line and naturally this particular provision of the freedom had to comply with the norm. But their remained, until 1835, the unfettered powers of admission by gift and sale, through which any admission whatever might be affected. Those powers seem to me to be a factor which is instructive in the present case. Together with apprenticeship, they condition the approach to any proposal to remove a sex disqualification.

There is, of course, the dictum in Hammerton v Honey, 24 W.R. 603 at 604, that custom is local law and you can only get rid of it by Act of Parliament. But, whilst the freedom is, in origin and prima facie, custom, it is not, to my mind, simply custom, like the land use rights in Hammerton v Honey. The freedom was part and parcel of the borough corporation. The Crown has a prerogative right to establish and regulate corporations. That is the right which is manifested in borough charters. Those charters commonly regulate the Freedom.

Hammerton v Honey had no concern whatsoever with the freedom of borough corporations; and the judicial approach there was contemporary and broad-brush, the Judge saying simply “I am not aware” of any other means than statute. Charters were obviously not considered, still less ancient charters.

I cannot see why, in a case where, as in Sudbury, the custom as to freemen has necessarily become part of a corporation regulated by a charter that expressly provides, in many ways, for burgesses, the legislative powers of the corporation should not extend to the provisions as to the admission of freemen.

In the reign of Charles II, the power of admission, taken in the aggregate, was absolutely unfettered. Admission of women was not conceptually objectionable. Thus, there was and is no inherent reason for limiting the legislative power, in this regard. Since 1835, the corporation has been prevented by statute from reviving admission by sale or gift. Subject to that limitation, however, regulation of admission by the Council seems to me to be lawful.

So, I would regard the power of the Corporation here as effectively the same as in the Ipswich Charter and thus enabling the admission of women for the future, by a formal act of the Council.                Charles Sparrow, Lincoln’s Inn, 12 August 1991