History of The Old Corporation of Malmesbury
by Donald Box
The Malmesbury institution now known as the Warden & Freemen or the ‘Old Corporation’ is the result of a long evolutionary process stretching back into Anglo-Saxon England and the foundation of Malmesbury borough itself. Because this evolution involved so many extraordinary events and still has so many unexplained features, it is best to first describe the Warden & Freemen as they appear today. We can then return to their beginnings and relate how these have evolved into the twentieth century institutions we now know.
To start with the townsfolk who form the Warden & Freemen: there are four ‘grades’ which in order of seniority, are ‘commoner’, ‘landholder’, ‘assistant burgess’ and ‘capital burgess’. To become a commoner one has to be a married man and a householder, living within the boundaries of Malmesbury as currently defined, and either a son or son-in-law of a commoner. On admission a commoner elects to have his name entered on what can only be described as ‘waiting lists’ of the six ‘hundreds’ – Taylors, Fishers, Glovers, Coxfoot, David’s Loynes & Thornhill. Why these subsidiary organisations are called ‘hundreds’, what their original purpose was and why they have these names has yet to be explained. Between them, the six hundreds now have 31 members, called landholders. Vacancies in the membership of each hundred are filled from the appropriate waiting list, by seniority, so all commoners, provided they live long enough, will eventually become landholders.
There are twenty-four assistant burgesses (they were, and still are, sometimes referred to as the ‘twenty fours’) and vacancies amongst their number are filled, by election, from amongst the ranks of landholders. The final grade is that of capital burgess, of which there are thirteen, and these are elected from amongst the ranks of the assistant burgesses.
The privileges of the Warden & Freemen now relate entirely to property in Malmesbury and nearby. A mile or so to the south-west of the town is Malmesbury Common or Kings Heath, Each commoner has an equal share in the profits from this common. The landholders, similarly, have an equal share in the profits from the ‘hundreds lands’ which are adjacent to the common proper, and the assistant burgesses to their lands, also adjoining the common. The capital burgesses enjoy the profits from their ‘burgess parts’, which are also in the vicinity of the common, and, in addition, the rents from certain properties in Malmesbury itself. Landholders, assistant burgesses and capital burgesses retain their common rights, as do all widows in respect of their deceased husbands. Assistant burgesses retain their landholders’ rights, but on becoming capital burgesses they forfeit both assistant burgesses’ and landholders’ rights.
A landholder, assistant burgesses and capital burgess must always be a commoner. The principal cause of losing one’s common rights in the past, and still today, is to cease to be a householder living within the boundaries of Malmesbury.
The freemen or burgesses of Malmesbury can trace their ancestry to the medieval rights of town dwellers to be free from the servile conditions which were attached to inhabitants of villages. Malmesbury owes its origin as a town to the Danish wars of King Alfred the Great. Part of the response of the English Kings to the threat from the Danes’ marauding armies was the foundation of ‘burghs’ or fortified towns. Malmesbury was one of these, and by the time of King Athelstan (Alfred’s grandson) was well-established, with a settled town population. Tradition has it that the townspeople felt the need of land on which to graze their horses and other animals and Athelstan obliged by granting them about 500 acres of land to the south-west of the town. In the words of his (reputed) charter-
……. I give and grant to them that royal heath-land of five hides of land near my vill of Norton, on account of their assistance in my struggle against the Danes…….
In this way Kings Heath started its association with the town of Malmesbury, an association which has now endured for more than 1000 years and which the commoners of Malmesbury still enjoy.
By the time of the Norman Conquest Malmesbury was a King’s town, administered directly through the king’s officials. It was mainly inhabited by burgesses who were free of most of the restrictions placed on village communities. They rented tenements within the town walls, a direct connection here with the modern condition that the commoner be a householder living within the boundaries of the town. The Malmesbury entry in the Doomsday Book confirms this special position of the town within the feudal order.
The other important feature of Malmesbury at this time (as it still is today), was the Abbey. It had been founded about 200 years before the town but had pursued its own, separate, existence. In 1206, King John sold the ‘fee farm’ (the profits of rents of its tenements) to the Abbot for the sum of £20 per annum. The Abbey now played an increasingly important part in the affairs of the town, including local jurisdiction. But the townsmen or burgesses still kept their own organisations, such as a merchant guild and the mysterious ‘hundreds’, and retained ownership of the common. They had their own spokesman – Alderman, and began to send two burgesses to Westminster to represent them in Edward I’s early parliaments. All these medieval institutions – burgesses, aldermen, guild, parliamentary representation, were to come together in the seventeenth century when the town finally obtained its charter of incorporation.
In 1538 Malmesbury Abbey was ‘dissolved’, by King Henry VIII. Besides causing great economic and social disruption in the town, the dissolution removed the local authority of jurisdiction and administration in the immediate area. Also, the guild system was now in permanent decline so it is not surprising that much confusion in the towns’ affairs arose during the reign of Queen Elizabeth. Apparently, the town suffered considerable decay, but in 1566 a group of the more prominent burgesses obtained the ‘fee farm’ of the town from the Queen, presumably with the hope that this would help to restore the former fortunes of the borough. By 1600 the burgesses had lost this but had acquired, by gift or purchase, other property in the town’s including St John’s Hospital and its environs, and which, as the ‘Old Corporation’, they still own. This small group of burgesses became something like a self-perpetuating oligarchy in the town, but not without many disputes with the generality of the burgesses, whose principal privilege remain that of being allowed to depasture a number of animals on the Kings Heath.
In 1609 a final settlement was reached in the High Court of Chancery which, in most respects, fixed the organisation of the townsmen until modern times. The privileged group of burgesses, now thirteen in number, were to be called capital burgesses. The ‘companies’ of assistant burgesses and landholders were now officially created and the relationships between the various grades of burgess and their privileges as described in the opening paragraphs of this history, determined. It was at this time that the lowest level in the hierarchy was given the title of commoner. The Alderman, who had continued through all the disputes of the previous years as principal townsman, was now to be selected from amongst the capital burgesses. In return for their enhanced status, the capital burgesses were obliged to maintain a free school and almshouses for the benefit of the townspeople.
The seventeenth century was truly a century of constitutional change – as much of the townspeople of Malmesbury as for the country at large. After the Chancery Decree of 1609 there were three Royal Charters, which between them settled the incorporation of the borough and its constitution until the great municipal reforming acts of the Victorian era. The first was granted in 1635, after an inquisition by King Charles I into the authority by which the borough held its properties and privileges. This charter formally recognised the Corporation of Aldermen, Capital Burgesses and Assistant Burgesses as the government of the town and added a High Steward, who was to be a man ‘learned in the law’ and charged with advising the Corporation in its affairs. The High Steward need not be a commoner, and, in fact, never was until recent times. The Alderman (and from 1696 the High Steward, too) was Justice to the Peace and officiated at the Borough Sessions Court, where justice for petty crime within the borough was dispensed and certain administrative functions carried out. The Alderman was also the local Coroner and Clerk of the Market.
The second charter of King James II, in 1685, was an attempt to obtain greater royal control over the affairs of the borough. It gave the king the power to dismiss capital burgesses he did not approve of. It did not last for long. The Glorious Revolution of 1688 brought in new rulers, the previous corporation was restored and affairs in Malmesbury returned to the old ways. Matters were finally settled by the Charter of 1696 which reaffirmed the provisions of the 1635 Charter. Constitutionally the Corporation now remained unchanged until municipal reform came to Malmesbury in 1886.
Enclosure & Reform
Up to the beginning of the eighteenth century any male inhabitant of Malmesbury could (eventually) become a commoner, provided he was married and inhabited an ancient tenement within the borough. But in 1727 the burgesses passed new rules whereby admission was restricted to sons, sons-in-law and apprentices of commoners. The apprentice qualification was later omitted – in the 1821 formal restatement of the rules – and, allowing for a few minor amendments during the intervening years, this is the position for qualification of a commoner today. The remainder of the eighteenth century and the beginning of the nineteenth was characterised by the rather scandalous trading of votes for electing members of parliament for borough. The parliamentary franchise of Malmesbury was restricted to thirteen capital burgesses and therefore, like many other boroughs in the kingdom, was peculiarly susceptible to bribery, usually through machinations of High Steward. The culmination of this scandal was the practice of Edmund Wilkins (High Steward from 1775 – 1804) leaving £50 under the plate of each capital burgess at an annual feast. The Great Reform Act of 1832 put an end to this practice in Malmesbury as it ended other similar malpractice’s in many other constituencies throughout the country.
At about the same time as the capital burgesses were losing their voting privileges the commoners were obtaining a major advance in their economic position. Kings Heath had been used since time immemorial for the depasturing of the commoners’ animals, just as had been intended when Athelstan first granted the common to the townspeople of Malmesbury. Many, if not most of the commons of England had been enclosed by the beginning of the nineteenth century but the enclosure of Malmesbury Common (the enabling Act was passed in 1821) was somewhat exceptional in that the land was divided onto about 280 allotments of a little over an acre and each commoner could cultivate his portion (as most did in the early days) or rent it out to another.
Malmesbury escaped, almost at the last moment, the reform of its corporation intended by the Municipal Reform Act of 1835. This Act abolished the old corporations which governed, at various levels of ineffectiveness, the boroughs of the kingdom, and substituted for them the democratically elected councils of Mayor, Aldermen and Councillors with which most of us are now familiar. So the old system of High Steward, Alderman and burgesses remained for most of the nineteenth century and it was not until 1886, under the act (1883) that Malmesbury Borough obtained a new Charter and fell in line with the other boroughs. This time, the now ‘Old Corporation’ lost its powers of local jurisdiction which it had enjoyed since 1635, and the Alderman & Burgesses became the Warden & Freemen of Malmesbury.
The common and ‘hundred lands’ remained the property of the Warden & Freemen and continued to be managed by Trustees under the terms of the Enclosure Act of 1821. The assistant burgesses and capital burgesses retained their rights to the burgess lands; the Alderman (now Warden) and capital burgesses continued to own their property in Malmesbury and to support the free school and almshouses.
So the ‘Old Corporation’ entered the twentieth century having lost its juridical and administrative functions in the town and its franchise to elect members of parliament for the borough, but retained its possession of the common and other property which had first been granted by King Athelstan so many years ago.
In 1940, under the exigencies of wartime and the need to maximise food production, Kings Heath was taken over by the War Agricultural Committee and farmed as an entity. A few years after the war (1951) ownership was returned to the Warden & Freemen under the condition that the common continued to be farmed as an entity and not in separate plots. The commoners, landholders, assistant burgess and capital burgesses therefore continue to enjoy the benefits of the common according to the entitlement of the ‘company’ to which they belong, but the depasturing of the ‘commoners’ animals which had been so conspicuous a feature of the common for the 900 years or so before enclosure and the cultivation of arable allotments which had flourished during the next hundred years are no longer to be seen on Kings Heath.