The Aldermen of the City of London Temp. Henry III - 1912. Originally published by Corporation of the City of London, London, 1908.
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THE ALDERMANIC VETO.
Until the year 1397 the Aldermen were elected directly by the Wards, but on August 1 in that year an Act of Common Council provided that at least two persons, "good and discreet men, both of whom in moral and temporal good, be fit to be a Judge and Alderman," should be nominated in future on the occasion of a vacancy, one of whom should be chosen by the Court of Aldermen (Letter Book H, fo. 314). By an order of the Court of Aldermen made on September 20, 1402, and approved by the Common Council, November 23 following (Letter Book I., fo. 16 b), the number of persons to be nominated was increased to four "of the more approved and discreet citizens." As a logical corollary to this enactment, the Court claimed and asserted the right of entirely rejecting any nomination which included the name of a person whom it deemed insufficient, inasmuch as otherwise the electors might entirely nullify the provision giving the Aldermen a discretion in the election of a colleague, by returning three obviously unsuitable names and only one properly qualified. The Court also claimed and asserted the right, in case a Ward should persist at three successive Wardmotes in making insufficient nominations, of itself nominating the persons from whom its final choice should be made to fill the vacancy without further reference to the constituency.
On November 7, 1480, a further Act provided that of the four persons nominated at least two should be Commoners (Rep. 7, fo. 43 b); in the previous year (January 19, 1479) it had been enacted that an Alderman might not remove from his Ward to another before he had served at least two years (Journal 8, fo. 192), and this period was extended to three in the case of the two Wards, Bridge Without and Farringdon Without, on September 4, 1550 (Letter Book R, fo. 90 b). These provisions were from time to time enforced, nominations infringing them being rejected by the Court, but this was by no means always the case, there being several instances of the order being disregarded. For more than three centuries the Act requiring four nominations remained in force; it was repealed by the Act of September 20, 1711, reducing the number to be nominated to two (an Alderman and a Commoner), and by a further Act of April 15, 1714, all previous Acts were repealed, and it was directed that the "ancient custom" should be "revived," and the inhabitants of the Wards should have "restored" to them "their ancient rights and privileges of choosing one person only," and that "from thenceforth" in all elections of Aldermen, "at a Wardmote to be holden for that purpose, there should be elected, according to the said ancient custom, only one able and sufficient citizen and freeman of the said city, not being an Alderman, to be returned to the Court of Lord Mayor and Aldermen and he should be by them admitted and sworn."
The latest occasion on which the Court had, up to that time, exercised its privilege of rejecting a Wardmote nomination was in 1710, this being only the third instance since 1670: the last instance of nomination by the Court after three rejections of Wardmote nominations had been in 1679. After the passing of the Act of 1714, the Court of Aldermen found no occasion for reviving the right of rejection until 1831, when Michael Scales, a butcher, who had been engaged in more than one discreditable transaction, and who had been elected Alderman by the Ward of Portsoken, was refused admission. The opposition to him was purely on the ground of personal unfitness, there being no political element, inasmuch as although Scales was a vehement Radical Reformer, his opponent at the poll, Daniel Whittle Harvey, M.P., for Colchester, was still more prominent on the same side in the political arena, and on various grounds was especially obnoxious to the Tory party. Scales was re-elected, and the Court then not only refused to admit him, but selected his opponent, W. Hughes Hughes (Harvey not having come forward at the second election). This, however, was clearly beyond the prescriptive rights of the Court of Aldermen, and Hughes was ousted by the Court of King's Bench in July, 1832. In the following year Scales was returned for a third time, being opposed by Thomas Johnson, whom the Court of Aldermen elected after a third rejection of Scales. Then followed a long series of legal proceedings initiated by, or on behalf of, Scales, as detailed at p. 188, resulting in the affirmation by the House of Lords in 1839 of the rights which the Court of Aldermen had claimed and exercised of rejecting unsuitable candidates, and, after three such rejections, of seating some other person without urther reference to a Wardmote.
The case for Scales (who maintained that the Act of 1714, by restoring to the Wardmotes the right of nominating a single person, took away from the Court of Aldermen the right of rejection which had been exercised during the three centuries when more than one name had to be submitted to it), was ably argued by Mr. (afterwards Baron) Platt in the Court of King's Bench on November 19, 1831, before Lord Chief Justice Tenterden, Justices Allan Park, Taunton and Patteson, and again on a writ of quo warranto against Johnson before Lord Chief Justice Denman presiding over a Special Jury on December 20, 1834, and by Mr. (afterwards Lord Chief Justice) Erle before the Court of Exchequer Chamber (consisting of Lord Chief Justice Tindal, Justices Allan Park, Gaselee, Bosanquet and Vaughan, Barons Parke, Bolland, Alderson and Gurney) on June 2, 1836, and before the House of Lords on appeal January 19, 1839, the law lords present and pronouncing judgment being Lord Chancellor Cottenham, Lord Wynford (ex-Chief Justice of the Common Pleas) and Lord Brougham (ex-Lord Chancellor) who were assisted at the hearing by eleven common law judges, viz.: Lord Chief Justice Tindal, Justices Littledale, Vaughan, Bosanquet, Patteson, Williams, Coleridge and Coltman, Barons Parke, Alderson and Gurney. All these eminent legal authorities on each occasion concurred in affirming the rights claimed by the Court of Aldermen, the House of Lords, after hearing Mr. Erle, not deeming it necessary to call on the opposing counsel (Sir John Campbell, Attorney-General, subsequently Lord Chief Justice of the Queen's Bench), to reply.
Lord Tenterden, dealing with the argument that the Court of Aldermen should state what their grounds of disapproval were, said that such a contention was absurd; it was not for any higher tribunal to inquire whether they had exercised their discretion properly or not. He added "there is every motive for a good choice by the Court of Aldermen and scarcely any can be assigned for a bad one." Mr. Justice Taunton said that it was "much better that the grounds should not be set out than that they should be disclosed": Mr. Justice Patteson that the custom was a "very reasonable" one, and that if the "mere circumstance of the liability to abuse" were a valid ground for overruling it, it would "do away with all law." Lord Chief Justice Tindal said "the custom is a legal and reasonable custom": Lord Chief Justice Denman that the Act of 1714 "did not at all interfere with" any custom not distinctly referred to in it, and that" a legal custom can be got rid of only by some distinct Act": Lord Brougham that the Act "has no reference to what ought to be done in respect of admission in case of an objection," and "is quite consistent with the custom," and Lord Wynford that "it does not touch any right which may exist elsewhere of controlling the admission of the person to be invested with the office of Alderman."
The final decision of the House of Lords in 1839, confirming the unanimous opinion of so many eminent judges at earlier stages of the litigation, may be considered to have finally settled the question, and it is, therefore, not surprising that when, in the case of Sir John Bennett in 1877, the Court of Aldermen again exercised its rights and, after thrice rejecting Sir John, elected Mr. Breffit to fill the vacancy, no attempt was made to carry the matter further, although it aroused a good deal of evanescent feeling for the time.
In the hearing of the case of Scales before Lord Denman and a Special Jury in 1834, Sir John Campbell, on behalf of the Court of Aldermen, brought forward a large number of precedents, enumerating 48 instances of rejection of nominations, and 16 of election by the Court, after three successive rejections in each case. These, which are printed in the accounts of the quo warranto proceedings, copies of which are very scarce, by no means exhaust the cases on record, and inasmuch as they have never before been fully collected, I append a complete list, so far as I have been able to trace them, of all the instances that appear in the official records of the Court of Aldermen preserved at Guildhall. The references to the Letter Books, Journals and Repertories will be found in each case at an earlier page under the heading of the particular Ward affected.
Rejections of Nominations by the Court of Aldermen.
It will be seen that in the foregoing list the number of recorded rejections in each Ward respectively is:—Farringdon Without 17; Broad Street 13; Bridge 11; Bishopsgate 10; Queenhithe 9; Aldersgate, Castle Baynard, Cripplegate and Vintry 7 each; Farringdon Within and Portsoken 6 each; Bassishaw, Billingsgate and Cheap 5 each; Cornhill 4; Bread Street, Candlewick, Coleman Street, Cordwainer, Dowgate, Lime Street and Tower 3 each; Walbrook 2; Aldgate and Langbourn, 1 each, making 144 in all.
Direct Elections by the Court of Aldermen after Rejection of Three Successive Nominations.
The Wards which have received Aldermen nominated directly by the Court are thus divided: Bishopsgate and Broad Street 3 each; Bridge, Castle Baynard and Farringdon Without 2 each, Aldersgate, Bassishaw, Cheap, Coleman Street, Cornhill, Cripplegate, Dowgate, and Portsoken 1 each. No instances are recorded in Aldgate, Billingsgate, Bread Street, Candlewick, Cordwainer, Farringdon Within, Langbourn, Lime Street, Queenhithe, Tower, Vintry, and Walbrook.