Town Clerk Wood's Memoranda.
Extracted from a MS. book compiled by Mr. John Wood, Town
Clerk of Cardiff, 1825.
First comes a series of translations of some of the Charters. In
that of Hugh le Despenser, the word "corf" puzzled the translator
very much. He decided to connect it with "corisfecta," and to
translate it "leather articles." The word is the Welsh "corph"
(from Latin corpus) and evidently means a trading corporation or
Then comes a series of Cases for Counsel's Opinion, with the
Opinions. These documents I will set out in an abridged form.
The first cites the most material parts of all the Charters, and
asks Counsel's opinion as to the power and authority of the Constable
of Cardiff Castle and his Deputy.
Mr. Wood's statement is as follows:—
It is observable that in the earliest Charter mention is made of
the Constable of the Castle, and a certain power and authority is
vested in him which is recognised and confirmed in all the succeeding Charters. It is also observable that he is throughout styled
by the Grantors "our Constable," or "the Constable of our Castle."
But how he was appointed, or by whom, or whether he held the
office by hereditary right, or by gift or grant, or whether for life
or pleasure or otherwise, can nowhere be discovered. However,
it is presumed that he was appointed by the Lord and, as it seems,
with the view principally to take care that the tolls were properly
Admitting the Constable of the Castle to have been appointed at
the pleasure of the Lord, it still remains doubtful whether the power
of appointing belonged to the Lords successively as Lords of the
County of which Cardiff was a part, or whether it was a right
claimed and exercised by them as incident to the ownership of the
Of late years, and indeed so far back as the books of the
present Corporation go, it is clear that the Lord of the Borough
has appointed a person to exercise the office of Constable; and he
can exercise the right of course as incident to the ownership of the
Castle only, and not as Lord of Glamorgan. But how he can
exercise this right of appointing a judicial officer, is one point which
we wish to ascertain. By the Charter of James I. the Constable of
the Castle for the time being is empowered to act as a Justice of the
Peace. The books say none but the King can make a Justice of
the Peace, and that the King cannot grant a power to make them;
neither can a man prescribe to have such a power. By statute,
Justices are to be made by Letters Patent under the Great Seal.
Yet, in effect, if the Lord of the Borough can appoint the Constable,
he does make and constitute a Justice of the Peace. (fn. 1)
It is provided by Statute of H. 8 that all cities, boroughs and
towns corporate which have liberty, power and authority to have
Justices of Peace shall still have and enjoy their liberties and
authorities in that behalf, after such like manner as they have been
accustomed, without any alteration by occasion of the Act. It is
presumed that this liberty, power or authority cannot be created by
the Lord of the County—though it must be admitted that, whatever
may have been the origin of the Constable's appointment, the Royal
Charters have confirmed to the Burgesses all their liberties and
quittancies. (fn. 2)
Your Opinion is therefore in the first place requested whether
the Lord of the Borough can by reason of his ownership of the
Castle, or by custom derived from the Lords of Glamorgan, appoint
whom he pleases to be Constable of the Castle; or whether it is not
rather a personal office, which he is bound to execute in propria
persona. (fn. 3)
By the aforesaid Charter of James I. a power coextensive with
that of Justices of Peace for Counties, to enquire of offences done
within the liberties of the Town is given, to the Constable, the
Bailiffs, Steward and Senior Alderman for the time being, or an
three of them (of whom the Constable and the Senior Bailiff for the
time being are to be two). It seems clear that the power is given to
them all jointly, and that if either the Constable or Senior Bailiff is
absent the power is rendered altogether nugatory.
Your opinion is therefore secondly requested whether it be not
incumbent on the Constable to reside within the liberty or within
a reasonable distance, so that the power may be enforced when
occasion requires, without having to send and wait for his travelling
100 or 150 miles, and even then to wait his pleasure.
The duty and office of the Constable is clearly judicial. It is
presumed, therefore, that he cannot appoint a Deputy. The books
say that a judicial officer cannot appoint a Deputy. (fn. 4)
You will therefore please to say if you think the Constable can
appoint a Deputy, even if the appointment is to exercise the office by
himself or his Deputy.
The Charters throughout say nothing of the office of Town
Clerk. The officer therein designated Steward has always been
distinct from a Town Clerk, and is commonly termed the Recorder.
The Town Clerk is, as far as we know, in all cases considered
the officer of the Corporation, and we believe is in all other corporate
towns appointed by the acting body corporate. By some means or
other, the Lord of the Borough of Cardiff has, for the last 100 years
at least, claimed and exercised the right of appointing this officer
himself. On what basis this claim and practice rest is unknown; but
the Lord for the time being has from time to time appointed this
officer under his seal, to exercise the functions of the office. The
present Lord of the Borough appointed the present Town Clerk,
under seal, to exercise the duties by himself or his deputy, quam diu
se bene gesserit. (fn. 5)
Your opinion is requested whether the Lord of the Borough can
maintain this right of appointment; and whether the present Town
Clerk can appoint a Deputy.
The present Town Clerk some short time back was elected and
sworn Alderman; but was never one of the Senior Aldermen, consequently his office partook of nothing of the judicial character.
Attempts are being made to turn him out of the office of Town
Clerk, on the ground that, by accepting the office of Alderman, he
vacated that of Town Clerk, since they are incompatible.
Your opinion is requested as to whether the present Town
Clerk, by accepting the office of Alderman, did vacate the Town
Clerkship. If you should be of opinion that he did, then, whether
a resigning of the office of Alderman before he was amoved from
the Town Clerkship purged the forfeiture so that he may continue
to hold it without fear of amotion.
I think there is nothing contrary to Law in the right claimed
by the Lord of the Borough and owner of the Castle to appoint
whomsoever he pleases to be Constable (fn. 6) of the Castle, although the
Charters attach to that office certain corporate rights, and although
the Charter of King James I. attaches to it the powers of a Justice
of the Peace within the Borough. And that the right is well
founded, I think appears from the long and undisputed exercise and
enjoyment of it.
I do not think that the Constable can be compelled to actual
residence within the Borough or within any particular distance from
it; but I think that he is bound to attend, when necessary, for the
purpose of holding the Quarter Sessions of the Borough, or for
swearing in the corporate officers who are required by Charter to be
sworn in before him. In the event of his refusal, I think he might be
compelled by Mandamus; or, if his refusal should be persisted in,
that he might be indicted for refusing to perform the duties of his
office. I do not think that the Corporation have any power to
amove him from his office; this power seems to me to belong to the
Lord of the Borough, who has the right of appointment.
There are certain cases in which a judicial officer may appoint a
Deputy, when sanctioned by custom and by the terms of his own
appointment. But I think that the Constable of Cardiff Castle cannot
lawfully appoint a Deputy to exercise the functions of a Justice of the
Peace; which by the Charter of King James I. are assigned to the
Constable. I am inclined to think that he might appoint a Deputy
to swear in the officers, if that has been the custom, and if it is
according to the terms of his own appointment.
If it could be clearly shewn that no such officer as a Town
Clerk existed before the Charter of King James I., I should think
it probable that the Lord could not support the alledged right of
appointment. But if this should appear doubtful, as it probably
must do, then I think that the exercise of the right by the Lord for
so long a period would be evidence that it had existed ever since
the first formation of the Borough; and that it might on that ground
be supported. (fn. 7)
I think that the present Town Clerk may appoint a Deputy, as
has been done in other instances by former Town Clerks.
I should think that the office of a junior Alderman is not incompatible with that of Town Clerk, unless the accounts of the Town
Clerk are settled, or his conduct controlled, by the Aldermen; in
which case I should think that his acceptance of the office of
Alderman would vacate his office of Town Clerk, and that his
subsequent resignation of the office of Alderman would not restore
him to the office of Town Clerk.
Feby 9th, 1818.
By the Charter of King James I. twelve of the Burgesses are
to be elected, in manner mentioned below, Capital Burgesses of the
Town of Cardiff. By the same Charter the nomination, election,
and swearing in of the Bailiffs, Capital Burgesses and other officers
and ministers of the Corporation shall be on the days, times, places
and periods, and in such manner and form, as they were wont to be
or ought to have been in times past nominated, elected and sworn
within the said Town.
[Margin:—This is a singular clause as applied to Capital
Burgesses, as I find no mention at all of them before the Charter
of James I.—H.A.M.]
The Marquess of Bute is Lord of the Borough, and he and his
ancestors always kept back the Charters and endeavoured to make
the Borough a Close Borough; but lately copies of the Charters
have been obtained and the Burgesses at large wish to throw the
Borough open. The oldest book in the Corporation coffers begins
in the year 1688; (fn. 8) and in the entry of election of officers of the
Corporation, such as Bailiffs, Ale Tasters and Serjeants at Mace,
Constables of the Town and other officers, which always takes place
on the feast of Saint Michael the Archangel (29 September) yearly,
there does not appear any entry of the election of a Capital Burgess.
And the first entry of the election of a Capital Burgess appears to
have been made at a Court of Record in the year 1692, in the
"Cardiff villa. In le Guildhall vill' pred' decimo die Augusti
"anno R.Rs & Re Will'i & Marie Angl' &c. Quarto, Annoq' D'ni
"1692, coram Cradoco Nowell et Ludovico Cox armiger' Balls vill'
"pred' &c. Elecc'o Capital' Burgen' ejusdm Ville Georg' Stephens
"Junr die & anno suprad' ad exequend' offic' Capital' Burgen' infra
"eandm villam & lib'tates ejsdm Cora' p'fatis Ballis;"
and in 1707 the next entry runs thus:—
"Cardiff Vill. Att a Com[m]on Councell held this 15th day of
"December 1707. It appearing to us whose names are hereunder
"subscribed, that Joseph Hoar, George Pranch and William Murton,
"three of the Capitall Burgesses, were deceased; in order to fill up
"those Vacancies the Majority of the Choice fell on Will[ia]m Jones
"Junr, Apothecary; Pethuel Sheers, Mercer; John Jones, ffarmer.
"Witness our Hands—Alexr Purcell, Nath (fn. 8) Wells, Bailiffs; Cra.
"Wells, Senr Alderman; Wm Jones, Alexr Pursell, Jo[h]n Archer,
"Lewis Cox, Emell Miles, Aldermen; Jno Rowbotham, Mich (fn. 8)
"Richards, James Jones: William Jones Junr was accordingly
"first Sworne & Admitted one of the twelve Capitall Burgesses
"in Open Councell the sd 15th day of Decr 1707. I[m]mediatly after"wards Pethuel Sheers was in like manner Sworne & Admitted one
"of the sd Twelve the same day; & afterwards John Jones was in
"like manner Sworne and Admitted; Alexr Purcell, Nath. Wells;
"Michl Richards, Towne Cl:",
From that period it seems to have been the usage of the Common
Council to appoint Capital Burgesses themselves, without consulting
the Burgesses at large, (fn. 9) and at all periods of the year as a vacancy
happens; and that they consider the office of a Capital Burgess to be
for life. The Aldermen elect and fill up vacancies of Aldermen from
Capital Burgesses only, and this appears to have been the usage from
the year 1716. But prior to 1716 it does not appear whether the
persons from time to time elected Aldermen were previously Capital
Burgesses or not.
By this means the Lord of the Borough having at one time
obtained a majority of votes in the Common Council (which he still
retains), has the sole management of the Borough. And so little did
the Lords attend to the interests of the Corporation, that in 1722 an
illiterate man was appointed Bailiff. (fn. 10)
On a late vacancy of Capital Burgess, happening by death, a
Common Council was held for appointing another. It was then
contended by some of the Council that the election of a Capital
Burgess ought to be made by the Burgesses at large, and on the
29th of September; but the majority proceeded to election.
[Margin:— "That was in direct contravention of the proviso in
the Charter of Rd Duke of Gloucester.—H. A. M."]
Your opinion is requested 1st whether the Capital Burgesses
ought to be elected annually, and if so on what day.
1. I am of opinion that the Capital Burgesses are not required
to be elected annually. The early Charters do not mention them.
The Charter of James I. refers their election to the former usage,
although there is no trace of the existence of such a body before
that Charter. The entries cited raise the inference that the election
was not annual, and show that the Capital Burgesses were not
elected with the other annual officers at Michaelmas. The first
entry of election of Capital Burgesses, in 1692, is in August, and
not on the usual day of election. That in 1707 is in December, and
purports to be an election for the purpose of filling up the vacancies
of three who were dead. This goes a great way to negative an
annual election; unless the three persons had died in the course of
the year, which is not probable. Under these circumstances, and
there being no provision in the Charter for the election at any
particular period, nor any limitation of time for which they should
be appointed, I think it must be taken to be (according to the
general Law) an appointment for life—particularly as by the Charter
the Aldermen are to be so elected.
Secondly, in whom is the Election of Capital Burgesses?
2. As the Charter is so obscurely worded with regard to the
election of Capital Burgesses, referring in the first place to a mode
of election to be afterwards mentioned, and in the subsequent part
directing the election to be made according to the former usage—
although the Capital Burgesses appear to be then for the first time
appointed—this question seems to be involved in much doubt.
The first entry, in 1692, is silent as to the electors. That of
1707 describes the election as at a Common Council; which, coupled
with the subsequent usage, would go a great way to give the right
of electing the Capital Burgesses to the Common Council. On the
other hand, although the Common Council, who are part of the
Burgesses, have elected, that fact does not of itself clearly negative
the right of the rest of the Burgesses to vote; and the latter passage
in the Charter might be construed to refer the election of Capital
Burgesses to the former usage as to other elections. If this be the
proper construction, then all the elections being (prior to that
Charter) in the Burgesses at large, that of Capital Burgess would
fall into the same hands. And as the general principles of Law are
in favour of the general right, and against that of the select body,
I think the latter ought not to be upheld, notwithstanding the usage
which is of no avail unless it is supported by a Charter or Bye Law
proved or to be preserved. Nor could the Common Council, who
are not the representatives of the Burgesses at large, but created by
the Crown, make a bye-law to exclude the body at large from the
right of election.
Fifthly, your opinion is also requested whether (notwithstanding
the usage to the contrary) the Aldermen may fill up vacancies of
Aldermen from the Burgesses at large; or must it be from the
5. The words of James the First's Charter being general, "that
12 of the Burgesses shall be Aldermen"; and there being in that
Charter nothing to confine the election to those of the Common
Council, but on the contrary the clause for their future elections
stating generally "that they should be chosen out of the Burgesses";
and the prior Charter of Queen Elizabeth having also generally
directed that the Aldermen should be "12 of the more sufficient &
discreet of the Burgesses" (those appointed in that Charter being
also merely described as Burgesses, and that before the creation of
the select body of the Capital Burgesses by the Charter of James),
I am of opinion that the mere usage since 1716, of electing the
Aldermen from the Capital Burgesses, is not sufficient to negative
the unlimited right of the Aldermen to elect from the body of the
Burgesses at large, as inferred from the circumstances stated before.
I conceive therefore that the Aldermen may fill up their vacancies
from the body at large, and are not restricted to an election from the
Common Council alone.
Sixthly, the Lord of the Borough has so far back as 1692
appointed the Constable of the Castle:—
"Cardiff Villa. In Guildhall Ville pred', Vicesimo tercio Die
"Marcij Anno Regn' D'ni R's et D'ne Regine Will'i et Marie dei gra'
"Angl', Scot', ffranc' et Hib'nie, fidei Defensor', &c. Quinto, Annoq'
"D'ni 1692/3 Cora' Cradoco Wells et Alexandro Pursell, armigeris,
"Ball'is Ville pred'e Necnon Justiciar' D'c'or' D'ni R's et D'ne Regine
"ad pacem infra Villa' pred' conseruand' atq' custodiend', et Will'us
"Herbert de Gabalva, ar', existen' no'i'at' et constitut', per patent'
"prenobi's Thome, Comitis Pembroke et Montgomery, Constabular'
"Castri Ville pred', tunc jurat' fuit ad exequend' officiu' Justiciar'
"pacis infra Villa' pred' et Lib'tates ej'sd'm." See fol. 5 under
the words "but only the Constable aforesaid and Bailiffs of the
same Town who shall have been elected by the Burgesses themselves." Some of the Burgesses contend the appointment of the
Constable to be in the Burgesses.
Your opinion is further requested whether the Lord or the
Burgesses have the appointment of the Constable.
Ought the Constable to reside within or within reach of the
It has been the usage for the Constable to appoint a Deputy for
the purpose of swearing in the officers of the Corporation. Has he
by Law such power, he being a magistrate?
6. In all probability an enquiry into the early history of the
Constableship of the Castle of Cardiff would clearly establish that
the Lord had the appointment of the Constable.
(fn. 11) And, from the
description of that officer in the Charter of Hugh le Despenser,
as well as in the subsequent Charters, I think it seems clear that he
was the officer of the Lord. I see no reason for supposing that the
Burgesses have any right to appoint him. The usage, as evidenced
by the document of 1692 seems to give the appointment to the Lord,
and the words of the Charter of Hugh le Despenser do not appear to
me to contradict that usage. The exclusion of all the Lord's officers
but the Constable and Bailiffs of the Town, "who shall have been
elected by the Burgesses themselves," appears to be open to the
construction that the latter words should be applied only to the
Bailiffs, and not to the Constable. For the Charter gives the election
of Bailiffs to the Burgesses, but not that of the Constable, who seems
to be described as officer of the Lord.
Neither do I see any reason why the Constable should reside.
He no doubt formerly resided in the Castle, which probably is out
of the jurisdiction of the Borough (fn. 12) He is directed by the early
Charters to be the Mayor; but the Bailiffs and Aldermen are to have
the government of the Town, he only holding the Court, which, by
the Charter of James I., is now to be held before the Bailiffs and
Aldermen with the assistance of the Steward. It should be observed
that the Bailiffs, Aldermen and Burgesses were not incorporated till
the Charter of James I, and the Constable is not a member of the
Corporation created by that Charter.
The Constable of Cardiff being a Magistrate, and as such a
judicial officer, cannot by Law appoint a general deputy. (fn. 13) It may be
another question whether he could appoint a deputy to do any
particular ministerial act. But I am of opinion that he could not
appoint a deputy for the purpose of swearing in the officers of the
Corporation, the Charter expressly requiring that the Aldermen
shall take their oaths before the Constable, & saying nothing of a
Deputy. And, whatever the usage may have been, I conceive that
any Aldermen sworn in before any person but the Constable is not
duly admitted into his office.
As it is stated to me that the Burgesses are desirous of throwing
the Borough open, I should observe that it appears there were
Burgesses in Cardiff as early as the 17th of Edward II.; and in
none of the subsequent Charters is there any power given of
enrolling, making or creating them. The consequence of which
is, that the power of making them must now be the same as it
was in the reign of Edward II.; which in all probability was, by
inrolling the inhabitant householders in the Resiant Roll at the
Leet, and swearing them to their allegiance there. If there are
any documents of the Court Leet now in existence to prove that
such was originally the mode of election, it seems to me to be
still the proper legal course, notwithstanding the select body of
the Corporation may have assumed to themselves any unauthorized
power of admitting Freemen.
The election of the Aldermen being expressly given by the
Charter to the Aldermen themselves, and that of the Capital Burgesses being so doubtful, there appears at present no mode of
opening the Borough but by ascertaining who the Burgesses ought
to be, or by claiming for the Burgesses at large the right of annually
electing the two Bailiffs from the Aldermen; which it would appear
ought to be done by the Aldermen and Burgesses at large, according
to the provision in the Charter of Richard, Duke of Gloucester,
and the clause in the Charter of Isabella, Countess of Worcester.
As I believe the Bailiffs are the Returning Officers at Cardiff, this
must, I conclude, be a material consideration.
HENRY ALWORTH MEREWETHER.
June 5th, 1824.
Further Case. III.
So far as can be collected from memory of man and the Books
and Minutes of the Corporation in the Town Clerk's Office, it
appears to have been the custom for the Bailiffs for the time being
to admit and swear in Burgesses at their pleasure, and to exact such
sums for admission as they thought proper. Indeed it is said that
at one time the Bailiffs would individually, and at all times and
places, even in public houses, grant freedoms to any they pleased.
This was corrected by the Common Council in 1762. By custom
the son of every Freeman (if his father was a Freeman at the son's
birth) is at the age of 21 entitled to his freedom. Marrying a
Freeman's daughter, or serving apprenticeship to a Freeman entitles
a resident to his freedom. Honorary freedoms are also granted.
The Bailiffs and Steward are accustomed from time to time to hold
Quarter Sessions for the Town, upon which occasions the Grand
Jury present the boundaries of the Town, and the various nuisances,
&c. In 1656 the following Presentment was made:—
"Cardiff Towne. Presentment of the Grand Jury of the Towne
and lib'tie of Cardiff according to the Articles to them given in
charge, made and delivered the eighth daie of ffebruary in the yeare
of our Lord God 1656, at the Gurldhall of the said Towne, before
Rice Davies and John ffenwell esquires, Bayliffs of the said Towne,
upon their Oaths whose names are hereunto subscribed, that is to
saie Roger Sheere, Alderman; John Wollvin and John Price,
Common Attorneys of the said Towne; Nathaniell Wells; Rice
Williams; John Hengott; George Evans; Lewis Jones the elder;
Lewis Coxe; Morgan Jones; Giles Morgan; Edward Edwards;
Cradock Wells; James Jones; Richard Waters; Rice Williams,
"mercer, and Griffith Lewis (inter alia) intruders upon the lib'ties
of the said Towne." (fn. 14)
And it has been the practice from that day to the present,
whenever Quarter Sessions are held (which of late years is very
seldom) so to present; but we have never seen any presentment of
persons entitled to the freedom.
The first entry we find of the election of Burgesses is made in
the Book of Proceedings of the Town Court, held every fortnight
under the Charter of James; which also contains entries of the
election of officers on Michaelmas Day. It is as follows:—
Cardiff Villa. In le Guildhall Ville pred' Quinto die Martij
Anno Regn' D'ni R's et D'ne Regine Willi' et Marie dei gra' nunc
Angl' &c. Primo Annoq' D'ni 1688. Cora' Benjamin Browne et
Cradock Nowell Armigeris Ball' Vill' pred' sec'd'm Consuetud'
Elecc'o' Burgen' ejusd'm Ville Emmanuel Jones Gen' tunc jurat'
fuit in Burgen' Ville pred' et Solvit pro Lib'tate p'r man' &c.
iijs. iiijd." (fn. 15)
The next was on 3 October 1689, and the fine was 20s.
In 1708 the following appears:—
"Att a Co[m]mon Councell held in the Guildhall this 22nd of March 1708. . . .
"And whereas sev'all persons have been & may be hereafter admitted Burgesses of
the sd Towne who are not or shall not be resident in the same Towne and may
hereafter p'tend to be exempt from payment of Toll w[i]thin the said Towne to the
great p'judice of the Inhabitants paying Scott and Lott, for preventing whereof It
is Ordered that all such Out Burgesses or Honorary Burgesses who by themselves
or their Servants shall insist upon the Im[m]munityes & Priviledges of Burgesses shall
be lyable and charged with bearing & paying towards the reliefe of the Towne and
other Charges incident to the said Towne."
"Court of Aldrmen. Novr 9th 1715. . . . Ordered yt all
persons (who are not ffreemen) be Summoned to appear before the
Bailiffs to Shew Cause why they exercise their Trades, not being
[Here follows the entry in the Town Book of the disfranchisement of Alderman Edward Herbert and Mr John Davies in 1736.
This is the first entry of the sort in the books in the Town
On 27 September 1745 there were seven admitted, who were all
1762. "Cardiff Town to wit. Att a Court of Common Councill held for the
said Town of Cardiff aforesaid in the Council Chamber of the said Town the 22d day
of December in the Year of Our lord 1762 to Consider of divers and sundry matters
of and Concerning the said Town and for the Well Government of the said Town,
We the Bailiffs and several Aldermen and Capital Burgesses duly Summoned and
assembled in Councill as aforesaid being the Major part of the said Common Councell
do hereby Unanimously Agree that Whereas it hath been usual and customary for
One of the Bailiffs of the said Town to swear such persons Freemen or Burgesses of
the said Town at such times or places as he thought proper And Whereas the
Original intention of all Guildes or Communityes were that the Burgesses or
ffreemen should be Admitted and Sworn into the said Guild in an open and publick
manner It is therefore hereby unanimously Ordered and Ordained by the Common
Councel assembled that from henceforth no person or persons shall be Admitted or
Sworn a Burgess or Freeman of the said Town but such as shall be approved by
the said Bailiffs of the said Town and by them sworn as such in the Town Hall of
the said Town at some public Court of Record of the said Town held for the said
Town hereby Ordaining that this Ordinance shall no ways impeach the right or
validity of any Burgess or Freeman already sworn as such but hereby fully
Confirming the same."
Since that time it appears that they have been admitted on
Court days and before the two Bailiffs; and on the last Election
for the Borough the Court adjourned to the day of Election, and
kept it open by adjournments during the Election, for the purpose
of admitting Burgesses entitled to their freedom. And it is stated
by old Burgesses that this was the practice at former Elections.
In the above cited Town Book the Churchwardens' and Overseers' Accounts are kept for several years and audited. Also there
are several entries on parish business, and it appears as if the Town
was completely under the control of the Corporation.
The documents prior to 1688 are in the hands of the Marquess
of Bute, who is the Lord of the Borough and also the Lord
Lieutenant of the County of Glamorgan, and brother to one of the
candidates for the Borough. The Bailiffs, who are under the
Marquess' influence, have lately made the Lieutenant Colonel of
the Militia and all the staff of the Militia Honorary Freemen.
A custom for the Bailiffs to admit and swear Burgesses at their
pleasure I believe to be bad, if the Court could be induced to
consider the question.
So also, if the subject was properly investigated, it would be
found that it is not by any particular local custom that the sons of
Freemen, or the husbands of Freemen's daughters, or apprentices are
free, but it is by the general Law of the land.
The same investigation would establish that the admission and
swearing of what are called Honorary Freemen, that is, persons not
residing in the place, are illegal.
The Quarter Sessions, considering the matters presented by the
Jury, will, I have no doubt, upon proper enquiry and accurate search,
be found to be also the Court Leet; and the ancient title of the
Court will, I imagine, be found to have been "Sessio Pacis et
Curia Domini Regis." (fn. 16)
If the Sessions are not duly and regularly held, the Bailiffs
should be compelled by Mandamus to hold them.
Though there may be no Presentment of any persons as
entitled to their freedom, if there are any ancient records of the
Borough or of the Court Leet, the Rolls of Resiants will probably
be found to contain, when compared with the Parish Books, the
names to the returns to Parliament, and other public documents of
the same date, the names of all the inhabitants, and to include no
As to the entries of 1688 & 1689, they were most probably at a
Court Leet. It should, if possible, be ascertained whether Emmanuel
Jones was before or after the time of his admission a householder in
the Borough. (fn. 17)
I think the variation in the fine very important, as I have no
doubt for the admission of strangers they might take what fine they
thought proper in each case.
The entry of 1708 must, in whatever view it is taken, be an
illegal act, and was no doubt one of those irregularities which occur
too often in the proceedings of Corporations. It assumes the
admission of non-resident Burgesses, which I believe to be illegal.
This proceeding was about 17 or 18 years after the publication
of Dr. Brady's book, which was written for the purpose of supporting the right of the select bodies and the nonresidents. This
entry speaks of the prejudice of the inhabitants paying Scot and
Lot. Why is their prejudice to be considered, unless they are the
persons entitled to the benefit of the Corporation? And if the Out
Burgesses are entitled to the priviledges of the place, why should
they be obliged to bear the burthens of the place, to which, not
residing there, they were not otherwise liable? And if they were
not entitled to the priviledges of the place, how could the Corporation
by such an Order give them those privileges? It seems therefore
quite clear that neither in the one way nor in the other can this
Order be legal. And on the whole I think it goes rather to negative
the right of the Out Burgesses, than to affirm it.
I conceive that every inhabitant householder was entitled to
exercise his trade in the place where he resided, and consequently
that any regulation to restrain him from so doing was a regulation in
restraint of trade, and void. I am therefore of opinion that the entry
of 1715 must be supposed to apply to some new comers who had not
been inrolled as inhabitants.
The causes of the disfranchisements in 1736 not being stated, it
is impossible to express a decided opinion upon them. The Corporation have certainly as incident the power of disfranchising, but it
must be for just and legal cause.
The admission of Outdwellers in 1745 I believe to be contrary
to the Common Law. I see no power of admitting them given by
any of the Charters; and I think no bye-law could properly give
such a power, nor any usage sanction it.
The fee for marrying the daughter of a Freeman I believe to be
illegal, as being in restraint of marriage. The claim of the wine I
presume is clearly so, and would go a great way to show that the
whole is irregular.
The entry of 1758 is only material to raise the inference that
Burgess and Freeman were synonymous terms. I think they meant
the inhabitant householders; otherwise this forfeiture might attach
upon an inhabitant keeping an open shop in his own house, which
would be in direct restraint of trade.
The entry in 1762 seems to be consistent with the Common
Law. The persons to be sworn in were certainly to be in one sense
subject to the approval of the Bailiffs; because no person outlawed,
convicted of any infamous crime, minors, lunatics or villains ought to
be admitted. And these facts were to be determined upon by the
Bailiff, under his oath of office and his general responsibility, not
arbitrarily. Which is apparent on this ground, if not on any other,
namely, that the Order is general; and yet it is acknowledged that
the sons of Freemen, apprentices &c. have a right to be admitted.
Even their right, however, must be subject to the approval of the
Bailiff with respect to the particulars mentioned before; which
approval must be regulated by a sound discretion, as is apparently
recognized by the Order itself, which, requiring publicity, allows that
the publick have an interest in the due exercise of the judgment or
approval of the Bailiffs.
If the documents in the hands of the Marquis of Bute are the
records of the Sessions of the Peace, or of the Court Leet, any
inhabitant of the Town, under the jurisdiction of those Courts, is
entitled to the inspection of them, and may enforce the right by
Mandamus. Or, if they are documents belonging to the Corporation,
any Corporator is entitled to see them, and may enforce his right in
the same way.
After perusing all the Charters, I am satisfied that the legal
Burgesses of Cardiff are the inhabitant householders, enrolled and
sworn. There can be no reasonable doubt that they were the
Burgesses to whom the Charter of William La Zouche, Lord of
Glamorgan, was granted. And I find nothing in the subsequent
Charters which directs that any other class of persons should be
Burgesses, or that any of the inhabitant householders should be
excluded from being so. The Charter of the Earl of Worcester
describes the Burgesses as residing within the Borough, and contradistinguishes them from strangers; while the Charter of the Earl of
Warwick contradistinguishes them from persons dwelling without
the Town. The Charters of the Jameses are expressed to be granted
unto the Burgesses and inhabitants, which some have supposed to
imply that these two classes were distinct. But, from an inspection
of a variety of old Charters, I am satisfied that it only means
"Burgesses inhabiting." [Several cases are quoted in support of
If the late admission of Burgesses was not at a public Court of
Record, I am of opinion a Rule Nisi for a Quo Warranto against
them would be granted. If they were admitted at such a Court,
still, if they were admitted corruptly, for sinister purposes, I think
the Court would grant a criminal information against the Bailiff for
having so admitted them. If no corrupt motive can be made out,
still, if these Burgesses have been admitted in such number and under
such circumstances as materially to affect the rights of the other
Burgesses, then, on the application of one of the present Burgesses,
I think the Court ought to grant a Quo Warranto against the Bailiff,
though I should add that no such has been granted of late years.
I can only say that an application to the Court, stating the
circumstances under which those individuals were admitted, ought
in my opinion to induce the Court to grant either a Quo Warranto
to try their titles, or a Mandamus to the Corporation to amove them.
One or the other should be granted, or the subject is left without
a remedy and the prerogative of the Crown set at nought by its
Charters being perverted with impunity.
[Counsel concludes by recommending certain legal proceedings
of a parliamentary and electoral nature, with a view to annulling the
privileges of the nonresident Burgesses,]
HENRY ALWORTH MEREWETHER,
October 14th, 1824.
Rehearses the various Land and Sea Tolls and the freehold
properties possessed by the Corporation. "The Corporation also
take upon themselves the repairs of the public Quay, also appoint
Water Bailiffs or Conservators for superintending the navigation
of the Port; and they at the expence of the Corporation repair and
scour the river, and place buoys down, for the more commodious
and safe navigation; and formerly they had a very extensive wall
and dyke surrounding the Town to keep in repair. (fn. 18)
All the Sworn Burgesses are exempt from the payment of any
of the above impositions or dues. It has hitherto been so managed
that there are no funds in hand, as the whole revenue is laid out
in repairs &c. of the before mentioned works and in the general
improvement of the Town. (fn. 19)
There are two Common Attorneys appointed by the Corporation annually (fn. 20) ; their accounts are settled by the Bailiffs, and the
expenditure of the revenue is under the controul of the Common
Lately, on a Court day before the two Bailiffs, many honorary
and nonresident Burgesses were among those admitted. They are
very extensive farmers, and are in the habit of sending their corn to
Cardiff for sale; and they now claim an exemption from paying toll,
as being admitted and sworn Freemen; so that the revenues of the
Corporation this year and hereafter will be much injured.
The several persons lately sworn Freemen or Burgesses of
Cardiff were sworn at a Court held by the two Bailiffs; but the
Steward was not present, which by the Charter of James II. he
ought to have been. It is now contended that they were not sworn
at a legal Court, as that Charter expressly directs that the Steward
shall be one to hold the Court.
It is anticipated the Bailiffs will contend that the Charter of
King James II. was granted just before the rebellion, and that it was
never acted upon, and that the Corporation do not consider they are
bound by it; for that the Corporation never held the Fair of the
17th of April, and the Steward never attended any of the Courts of
Record, and that the Deputy Constable of the Castle never acted as
a Justice of the Peace. These three points (excepting the Crown's
reservation of the right to displace the officers of the Corporation)
are the only difference between the Charters of James I. and James II.
In the memory of man, the only fairs ever held in the Borough
of Cardiff are those of 30 June, 19 September and 30 November, on
which days there is always a Court of Piepowder holden. There is
also a High Market the first Wednesday in April, but no Court of
The first mention of the fortnightly Court occurs in the Charter
of Hugh le Despenser, which grants that the Constable shall hold a
Hundred Court every fortnight and pleas called Piepowder every day
when it shall be necessary. The Charter of James I. directs the
holding of the fortnightly Court before the Bailiffs.
The oldest book in the Town Clerk's Office begins in the 1st
year of William and Mary, 21 February 1688 [9?] when Benjamin
Brown and Cradock Nowell, two of the Aldermen named in King
James the Second's Charter, were Bailiffs. On 29 Septr 1689
Jonathan Jones and William Richards, two other Aldermen named
in the same Charter, were elected Bailiffs. From 1689 to the
present day it appears that the fortnight Courts were held as
frequently before one Bailiff as before both Bailiffs; but it does
not seem that the Steward ever was present, as no mention is
made of his name in the style of the Court. But in 1759 there
is an Order of Common Council to oust William Powell esqe from
the office of Steward, for neglect of duty. [This power of amoval
was given to the Bailiffs and Aldermen by the Charter of James I.
as well as by that of James II. H. A. M.]
No mention is made of a Deputy Constable in any Charter but
that of King James II, (fn. 21) and we find the Corporation adopt that
Charter in the following instances:—
On 24 January 1759 the Bailiffs and other ministerial officers of
the Corporation were sworn into office before a Deputy Constable of
the Castle. And on 31 Decr 1763, 17 Feby 1765, 29 Septr 1814 and
4 May 1818, Thomas Morgan, Alderman, was sworn into his office
before a Deputy Constable, who also administered to him the Oaths
of Allegiance and Abjuration; and this Alderman was admitted by a
Mandamus from the Court of King's Bench, which runs as follows:—
1818. "Of Easter Term in the fifty eighth year of King George
the Third. Cardiff. George the Third by the grace of God of the
United Kingdom of Great Britain and Ireland King, Defender of the
Faith. To the Constable (fn. 22) of the Castle of Cardiff in our County
of Glamorgan. Greeting. Whereas Thomas Morgan the elder, one
of the Burgesses of the Town of Cardiff in our said County of
Glamorgan, hath been duly elected into the place and office of one
of the Aldermen of the said Town of Cardiff, and ought by you to
be sworn into the said place and office. And whereas the said
Thomas Morgan, after such his election into the said place and
office, did duly tender and present himself before you the said
Constable in order to be by you sworn into the said place and
office, and did then and there in due manner require and demand
of you to be sworn into the said place and office; yet you the
said Constable of the said Castle of Cardiff, well knowing the
premises but having no regard for the duty of your office in that
behalf, did then and there without any reasonable cause absolutely
refuse and yet do absolutely refuse to swear the said Thomas
Morgan into the said place and office of one of the Aldermen
of the said Town of Cardiff, in manifest contempt of Us, and
to the great damage and grievance of the said Thomas Morgan,
as We have been informed from his Complaint made to Us in
that behalf. We therefore, being willing that due and speedy
Justice may be done to the said Thomas Morgan in this behalf,
as it is reasonable, do peremptorily Command you the said Constable of the said Castle of Cardiff, firmly enjoining you that,
immediately after the receipt of this Writ, you do swear the said
Thomas Morgan into the said place and office of one of the
Aldermen of the said Town of Cardiff, and admit him to all the
liberties, privileges, franchises, preeminences and advantages to
the said place and office belonging and appertaining. And how
you shall execute this Writ make known to Us at Westminster
on Friday next after the morrow of the Holy Trinity, then
returning to Us this Our Writ. And this you are not to omit on
peril that may fall thereof. Witness, Edward, Lord Ellenborough,
at Westminster the twenty ninth day of April in the fifty eighth
year of Our reign. By the Court. Lushington. By Rule of
This Mandamus was served on the Constable himself.
[Several other instances are cited of Bailiffs, Aldermen and
other officers sworn in before the Deputy Constable, down to
The following is stated with a view to draw Counsel's attention
to the manner in which the "Burgesses," "men and tenants,"
"whatsoever inhabitants of the Towns of Cardiff, Cowbridge &c."
are to entitle themselves to the benefits granted them by the several
Charters. In order to meet any argument of the Corporation's
against admitting the inhabitants generally to partake of the grant
of exemption from toll throughout the Kingdom (an exemption which
many of the sworn Burgesses, being graziers and horse dealers, avail
themselves of in many parts of England and Wales when attending
fairs and buying cattle &c.), it is to be observed that the inhabitants
claiming the privilege do not contend that they are of the Corporate
Body to enjoy any of the rights exclusively granted to such Body,
such as the piece of land given them to build upon, the tolls taken
within the Town, the lands purchased by the Corporation, &c.; but
they claim exemption from the payment of toll, murrage &c. in all
other parts of England, Ireland and Wales, and contend that they
ought to have some document to show that they are inhabitants of
the Borough of Cardiff, so as to entitle them.
The first mention of this exemption is in the Charter of Hugh
le Despenser, which confines it to the Burgesses of Cardiff.
By the Charter of King Edward II. it is extended to the
Burgesses and other men and tenants of Cardiff, Usk and other
towns; which is confirmed by the Charters of King Edward III.
and King Henry IV.
By that of King Henry VI. it is extended to the Burgesses,
men and tenants whatsoever, inhabitants of the Towns of Cardiff,
Cowbridge, Neath and Kenfig, and their successors; which is
confirmed by Charter of King Edward IV.
The Charter of Richard, Duke of Gloucester, confirms to the
Bailiffs, Burgesses and inhabitants of the said Town all liberties &c.
anciently enjoyed by them; and by this grant the Burgesses and
inhabitants are treated as the persons in whom the election of
Bailiffs is vested.
The Charter of James I. recites that the Burgesses and inhabtants by divers several names have enjoyed divers liberties &c. A
Body Corporate is thereby created, & it is further granted that the
Burgesses shall enjoy all customs, privileges, franchises, liberties,
exemptions, &c. which they had possessed theretofore. This is
confirmed by James II.
It is therefore submitted that the inhabitants of Cardiff are
entitled to this exemption; but how they are to be placed in a
situation to enjoy it, seems the question.
The inhabitants cannot claim this exemption but as Burgesses
of Cardiff. But I have no doubt that all the inhabitants, sworn to
the oath of allegiance in the Court Leet and enrolled there as
inhabitants, are thereby Burgesses and members of the Corporation,
which is an incorporation of the inhabitants.
I am of opinion that the Charter of James II. was void in Law, (fn. 23)
and I think it very doubtful whether it was ever duly accepted, or at
all acted upon, till long after the Revolution. I think, therefore, it
is a desperate attempt to set up that Charter.
The objection merely on the ground of the absence of the
Steward from the Court of Record which swore in the Burgesses
is not fit to be relied on.
Every bonâ fide inhabitant householder of free condition is, in
my opinion, entitled to be sworn a Burgess; and, as villenage is
now abolished, in fact every inhabitant householder is so entitled.
HENRY ALWORTH MEREWETHER,
Jany. 18th, 1825.
21 January 1825. Mr John Wood writes to his London Agent
that, since receiving the above Opinion, he has found in the Corporation Books "an entry of all Charters and papers being delivered
up from the Bailiffs going out of office, to their successors, in which
the Charter of James the Second is mentioned. The first of these
entries was made in 1691, and they are continued almost annually
till 1712; after which no entries appear, and the Charter is not now
among the Corporation papers."
Mr. Merewether thereupon wrote:—" This fact alters my
"Opinion, of course, as to the Charter having been accepted, as it
raises a strong inference that it was accepted. But I am still
strongly inclined to think that the Charter was illegal and void,
though I do not think this materially affects the present question.
"H. A. MEREWETHER,
"January 24th, 1825."
William Stanley has carried on business in the Borough of
Cardiff as a Hatter, for these last nine years, and has during that
period sold goods in the public Market; he himself, as well as all
others, erecting every market day their own standing in the street.
About a year and a half ago ["Xm[m]mas 1823"] a person calling himself
Collector of the Corporation Tolls for the first time demanded 4d.
for Corporation dues. Stanley having never paid this before or ever
heard of it, refused. He refused also on the following days, on
which the same was demanded. And on each of such successive
dates the Collector and Constables seized one of his hats.
A Toll of 1d. is admitted to have been paid from time immemorial to the Serjeant at Mace, and no other; and the oldest persons
in the Town, who have stood the Market between 30 and 40 years
last past, never paid any other toll but 1d., nor was any other ever
demanded of them. The demand of 4d. (and 3d. and 2d. of some
persons) was made for the first time in September 1823, in consequence, it is supposed, of the following circumstances:
A Mr. Vachell has built a Market House in Cardiff, and many
persons have left the old standings in the street (which they always
erected themselves) and occupied those erected by Mr. Vachell in his
Market House. The toll of 4d. was soon for the first time demanded
in the street also.
The King's Charter to Hugh le Despenser grants "that he
and his heirs and their Burgesses & other men and tenants of
Cardiff" shall be free for all their things and goods, to wit as well
merchandizes as other things, from (inter alia) toll, stallage and
pickage, throughout England &c. (the customs of wool, leather,
woolfells and wines only excepted).
Mr. Stanley, although not a Burgess, considers that as an
inhabitant of Cardiff, paying all taxes and manufacturing his goods
in the Town, he comes within the meaning of the Charter.
1323. Edward the Second's Charter to Hugh le Despenser the
younger beyond all question makes the goods and merchandizes,
not only of the Burgesses but also of the other men and tenants
of Cardiff and the other places mentioned in it, free from toll,
stallage and pickage.
In 1340 Hugh le Despenser granted to the Burgesses of Cardiff
that they and their heirs should be discharged and free (inter alia)
from toll and pickage; and the same Charter grants that the
Burgesses shall be "free by their liberties to sell all such things
they have for sale to any person or persons and at such times they
please without any impediment." There can be no doubt this must
be construed as granted equally to the "other men and tenants."
Thomas le Despenser, in a Charter reciting those of Hugh
and Edward le Despenser, grants also to the Burgesses and their
successors that pleas of Forestalling and Homesoken should be
pleaded before the Constable and determined in the Hundred
Court. Like the others, this Charter must be construed as granted
equally to the other men and tenants.
Henry IV. confirmed the Charter of Edward II. & Edward III.
to the "Burgesses and men" of the Town of Cardiff. The term
"men" I conceive extends to all the inhabitants.
Isabella, Countess of Worcester, granted to the Burgesses &
their heirs and successors certain additional privileges, some of
which treat the Burgesses as distinct from strangers. I think that
the fair inference from this Charter is that it was intended to apply
to all the inhabitants of the place.
The Charter of Richard Neville, Earl of Warwick, is still more
decisive; for it grants to the "Burgesses and resiants" the privilege
(inter alia) that if any person shall be willing to come to the Town
to stay and reside there, he shall be subject only to the local jurisdiction. The term Resiant is appropriate to the suitors of the Court
Leet, who are all the inhabitants of the place; and none can be
exempt from that suit.
King Henry VI. confirms the prior Charters to "whatsoever
Burgesses, men and tenants resiants in the Towns of Cardiff,
Elizabeth's confirmation is nominally to the Mayor and Bailiffs.
But this should by necessary intendment include all the inhabitants;
and this Charter is a strong instance to show that such instruments
cannot be construed by their strict words.
This construction of the ancient Charters is supported by the
recital of that of James I., that the "Burgesses and inhabitants" had
immemorially enjoyed divers liberties, customs &c.; which is a
distant recognition of the right of the inhabitants to enjoy at least
some of the privileges of the place. And the general clause of
confirmation at the close of that Charter confirms all the privileges
which had been previously enjoyed, in the fullest language and
without one word to show any intention either to curtail the
privileges or the number of the persons who were to enjoy them.
I therefore think that not only the Burgesses but all the inhabitants are included in the grant of exemption from tolls.
Note.—This does not conclude the Opinion, as the book finishes in two more
leaves, which are missing, and one at least of which bore writing, down to the bottom
of the second side. The book is a quarto paper volume, bound in boards. It was
purchased in 1895 by the Records Committee of the Cardiff County Council, for
six guineas, of Mr. Alcwyn Evans, Carmarthen; who had bought it at a sale of the
effects of the late Edward Priest Richards, formerly Town Clerk of Cardiff.