Outline of Law Relating to Freedom
Harry Ward’s book ‘Freemen in England’ (1975 imprint) provides a very good overview of the history, duties, and rights of freemen in a general way. All freemen should obtain a copy and read it through. Within pages 12-15 is an excellent article by Mr Robin Walker MA LLM sometime Secretary of the Freemen of Newcastle upon-Tyne. This article provides an ‘Outline of the Law Relating to Freemen’.
It is impossible to have any understanding of the law relating to freemen without bearing in mind the centuries-long history of this system.
The origin of the system of freemen is not known with any certainty. It is known to have existed in Anglo-Saxon times, but its roots seem to go back into the Ancient British and Roman systems as well as those of the Angles and Saxons. English civilisation was also affected very considerably by Scandinavian influence, and the customs of Danish settlers in the Danelaw and other areas influencing the English way of life. The burgesses (later called freemen) of boroughs were those inhabitants of the towns who were of free status and were permitted and obliged to bear arms for the defence of their town, being also in most cases owners or tenants of dwellings in the town. Broadly speaking, they would fit into the social order as a middle class between the military land-owning gentry and the labouring classes.
The Norman conquest gave rise to a large immigration of foreigners (whose systems were fairly similar to our own) and to a considerable expansion of trade and urban life. The practice of granting Charters by the King and feudal overlords which had already started before the Norman Conquest, increased slowly at first but afterwards more rapidly during the 12th century. These Charters were a means of granting privileges to the burgesses of towns, usually with the intention of promoting industry and trade as well as often of increasing the military strength of the town concerned. These charters were documentary records of Royal or feudal decrees and the early examples are usually very short and unlike the lengthy charters adopted later.
The grant of privileges in this way was the germ of the later incorporation of boroughs as corporate bodies, but it also had the effect of enhancing the status of the burgesses and their powers. In the 13th century this frequently grew into a power of self-government and, building on earlier foundations, the election of local officials. The burgesses as a body thus came in to control their towns at the same time as they developed the town’s industry and trade. In order to protect their position, the benefits of trade and industry were reserved by charters to those inhabitants who were entitled to the status of burgess or freeman. This process continued up to the early 18th century when the freemen probably reached the peak of their power, but unhappily in many cases they abused their position and the courts, which had previously supported the freemen’s powers, started to view them askance and to find legal ways of reducing them. The industrial revolution, coupled with demands for greater democracy, finally overcame the freemen’s powerful position with the result that in 1835 the powers were for all practical purposes abolished.
The loss of their previous powers did not destroy the institution of freemen. In many towns they possessed properties and funds (some charitable, some general) and they valued their long history, so they kept their organisation, where it existed, in being. It is an interesting comment on the longevity of human institutions that even now, approximately a century and a half after the freemen’s powers and privileges were taken from them, their institutions should still be very much alive, even if in some towns they have been allowed to disappear.
2. Law affecting freemen
This statement about law is only an outline or general guide rather than any attempt to make a detailed exposition. (Details may be found elsewhere on the AS Website). It is perhaps easiest to divide the matter into two periods namely pre- and post-1835 and it is probably more illuminating to take the latter period first.
The Municipal Corporations Act 1835 (5 and 6 Will IV c76) provided
- The repeal of all laws, customs, charters, etc inconsistent with the Act.
- The prohibition of admission of freemen by gift or purchase;
- That rights of trading which had been formerly exclusive to freemen should be thrown open to all;
- That freemen’s rights to admission (except by gift or purchase) and rights of property (other than corporate borough property) or to participate in charities should be unaffected by the Act.
Certain points in this Act should be noted, namely
- It applied only to the boroughs listed in a schedule to the Act, notably it did not apply to London.
- The Act does not contain certain provisions as to corporate property and various offices in the boroughs concerned, so that any earlier law or custom with regard to such property or offices being inconsistent were repealed or annulled.
- It has sometimes been said that the Act had the effect of rendering the pre-1835 rules, regulations, or customs of freemen unalterable thereafter. Any such effect is by no means clear and the late Mr W S Wigglesworth of Lincoln’s Inn advised in relation to the Freemen of Norwich that the rules and regulations relating to admission were not rendered unalterable by the Act and that if the rules could have been changed before 1835, they could still be changed. He considered that the Corporation of Norwich had power either by statute or by charter to amend the rules and that this power was transferred to the new Council by Section 6 of the 1835 Act.
- The Act did not affect rights of admission to or property of individual guilds, fraternities, societies, or companies of Freemen where these existed as separate entities.
The 1835 Act was repealed by the Municipal Corporations Act 1882 (45 and 46 Vict C50) but was in effect re-enacted as far as Freemen are concerned, though the words used are not identical. Section 259 of this Act is noteworthy as expressly confirming that corporations’-chartered powers are still in existence.
The Municipal Corporations Act 1883 (46 and 47 Vict c18) applied the provisions of the 1882 Act to a considerable number of towns which had not previously been included. It is therefore necessary in considering the applications of the Acts to look at both the 1835 and the 1882 Act.
The 1882 Act was itself largely repealed and replaced by the Local Government Act 1933 and although the wording was again changed the purport of this Act remained the same, namely, to preserve the status and rights of freemen (but subject of course to the express provisions of the 1835 Act).
The Local Government Act 1972 repealed the provisions of the 1933 Act and replaced them with provisions intended to secure the same result but again in different words (Section 248). This Act also contained provisions for the expiration of local Acts of Parliament (Section 262), but provisions relating to Freemen’s status and rights were expressly excepted (Subsection 12 (iii). This Act did not expressly annul borough charters, but it did state that the borough corporations should cease to exist. The object of this was presumably to effect the annulment of charters so far as local government is concerned, but not to destroy them completely as this would have caught other matters in many charters. The provision of Section 248, that freemen should have and enjoy the same rights as before, would seem to operate as a new statutory confirmation of any chartered rights, thus saving them from extinction. It is thought that section 246 of the Act. Which refers to privileges or rights belonging to citizens or burgesses of an existing city or borough, is not intended to refer to privileges or rights belonging to freemen as such. This wording is confusing, as in the Municipal Corporations Act 1835 and innumerable other Acts, “freemen” and “burgesses” have been used as synonymous with citizens, inhabitants, or residents. The words “citizens” or “burgesses” are however used in the 1972 Act in a sense which is not synonymous with Freemen.
This Act also contains provisions for the grant of new Royal Charters to certain local authorities, including the existing cities and boroughs, but unless special provisions are inserted in such charters (which at present seems unlikely) they will have no direct effect on freemen or their rights.
The effect of these Acts from 1835 onwards has therefore been to preserve the status and rights of freemen subject only to the terms of the 1835 Act which abolished their material privileges other than certain property and charitable rights.
We can now go back to consider the pre-1835 position of freemen, but attention must first be drawn to the most important fact that the rights of freemen depended principally on local law, custom and chartered rights, which although there was a general similarity, varied very considerably in detail in different towns. This detailed variation is such that it would be difficult to find any two towns which can be said to be alike in all respects, so that anyone considering the legal position of freemen of a particular town must keep very clearly in mind the fact that it is of little use to argue by analogy from one town to another. The generalised information given here must therefore be read subject to the warning that one must never argue from the general tom the particular.
Rights to admission in general depended on birth or patrimony, relationship by marriage or servitude (i.e. apprenticeship)-admission by gift or purchase having been prohibited.
The right to become a freeman was and is a legal franchise recognised and enforced by the courts in accordance with local custom or charter as established by evidence. The details of the right vary from place to place but the opinion has been expressed by Mr Charles Sparrow QC of Lincoln’s Inn that, subject to local custom or local statute, the right of admission by patrimony is a form of proprietary right which passes to a freeman’s descendants in the first generation i.e. it can descend to grandsons and more remote male issue. Mr Sparrow is careful to remark that the general principle is subject to local custom.
The rights of wives or widows of freemen as such also vary very considerably, being in some towns quite extensive and in other towns non-existent.
The law was much concerned at various times as to the right of an apprentice to be admitted a freeman on completing his apprenticeship. The system of apprenticeship seems to have come into legal recognition during the 14th century although no doubt it must have existed in practice long before. Statutes regulating apprenticeship seems to have come into legal recognition although 1562 is noted. This decreed a minimum apprenticeship period of 7 years and remained in force until 1814 when it was repealed by the Apprentices Act (54 George III c96). Apprenticeship was usually controlled by the guild, fraternity, or company of freemen of the particular trade concerned and the period in some places varied from time to time depending on economic conditions. The general law, however, was that an apprentice, having been duly indentured and the proper formalities complied with, was entitled on satisfactory completion of his apprenticeship to be admitted a freeman of the town where his master carried on business and the fee payable on admission was not to exceed 3s 4d. In practice the period of apprenticeship during the 19th century came to be less than 7 years but it seems that in some places abolition of the minimum 7-year period was overlooked with the result that claims to the freedom by apprenticeship became rare though by no means extinct.
2. Freemen’s Lands
The legal position in relation to freemen’s lands also varies very considerably in different places. Many boroughs were in origin manors or parts of manors with the usual medieval arrangements that freeholders of the manor enjoyed, agricultural rights (including grazing) in the common fields and manorial waste. In some cases when a borough became an incorporated body the corporation was granted or assumed the rights of the Lord of the Manor, but the rights of individual freemen were not interfered with. When a borough was incorporated by grant, the grant frequently included not only agricultural rights but also other manorial rights such as markets, fisheries and tolls, and similar rights could be acquired by prescription. In such cases when the open fields and waste came to be enclosed in some towns, Inclosure Acts were passed and the freemen were awarded specified lands usually vested in trustees, in lieu of their rights over the whole. In such cases the freemen’s rights will be specified in the Inclosure Act and Award though these rights may have been affected by subsequent agreements with the Borough Corporation. In other cases the freemen’s lands and rights may have been dealt with specifically by a local Act under which the Corporation or some other body acts as trustee for the freemen whose rights and liabilities will be defined by the Act. Here again there may also be cases where the freemen’s medieval rights, e.g. to grazing or fishing, may still subsist over at least part of the original lands.
In very many cases these freemen’s lands will be popularly known as commons, whether or not they are technically in law. The Commons Registration Act 1965 required registration of all common rights which as defined included freemen’s rights in some but not all cases, and enacted that if not registered in due time such rights should cease to exist. Individual freemen’s rights under trusts were not included and did not have to be registered.
In considering freemen’s rights in respect of land or other old proprietary rights it is essential to ascertain the local as well as the general law.
3. Borough Boundaries
In some boroughs the precise boundaries are relevant because rights of admission might be limited by custom to sons born within the boundaries or benefits might be restricted to freemen or dependants resident within the boundaries. Boundaries of some boroughs have varied quite substantially before and after 1835. Counsel’s Opinion was taken in relation to the Borough of Derby. They were advised on 23 April 1965 that the relevant boundaries were the boundaries for the time being. Counsel pointed out that boroughs and cities have seldom been static even when walled. He could find nothing in the Acts which confined the rights to persons resident within the borough boundary as it was in 1835 or at any other date. He also pointed out that later local government legislation e.g. the Local Government Act 1933, made no attempt to distinguish between Boroughs as they were in 1835 and Boroughs as they were in 1833 although Parliament must have been fully aware that many boroughs had changed their boundaries in the intervening 98 years. If it had been intended to draw any distinction this could very easily have been done. Some Boroughs have assumed, as a matter of course, that the borough boundaries for some time being were applicable for purposes of residence, birth, apprenticeship, and eligibility for charitable benefits where boundary restrictions applied. Others may have taken a narrower and tried to adhere to the borough boundaries as they were in 1835, but the matter does not seem to have been specifically dealt with either by legislation or Court decision. The 1972 Local Government Act altered boundaries quite considerably in many places, so the question of boundaries may become acute. Here again local custom (where it can be proved) may be the deciding factor.