FINAL REPORT Royal Commission Of Market Rights and Tolls
We desire to acknowledge the willingness of the various Corporations
and private owners whom we examined to assist our inquiries, though we regret to state that in certain instances
information was refused by some corporate bodies. We proceeded to Ireland in October 1888, and held inquiries in
Belfast, Dublin, and Cork, and in April 1889 we proceeded to Scotland, where we held inquiries in Edinburgh, Dundee,
and Glasgow, taking evidence as to the markets in these cities, and also as to the markets in Ayr, Perth, and Stirling,
and .Falkirk Fair.
Through. the courtesy Of Your Majesty's Secretary of State for Foreign Affairs, and Your Majesty's representatives
abroad, we have obtained some valuable and interesting information as to the markets in Paris, Brussels, Berlin,
Vienna, New York, Boston, Chicago, as to the fairs held at Beaucaire, Leipzig, and Nijni Novgorod, and also as
to the laws relating to markets generally in those countries respectively. We deal with this subject in another
part of our Report, and the information thus obtained will be found in Volume XIV.. which accompanies this Report.
A précis of the whole of the evidence has been prepared, and this will be found in Volume XII., which also
accompanies our Report.
We now proceed to review the evidence, following as far as possible the terms of Your Majesty's reference.
A Market, viewed in its strictly legal aspect, may be defined as an authorised public concourse of buyers and sellers
of commodities meeting at a place, more or less strictly limited or defined, at an appointed time.
This definition excludes many so-called markets which are mere private associations or meetings of traders and
others, and also other marts or sales which are popularly called markets.
A MARKET RIGHT is a franchise or privilege to hold a market; to this is generally attached the right to levy tolls
and other dues.
Although the reference to this Commission does not specifically name Fairs, we have assumed that they may be dealt
with as being within the meaning of the term "Markets," and have, therefore, included them in our inquiry.
A FAIR has been described as a larger market. Thus in Comyns' Digest we have the following definition : - "
Every fair is a market not e contra " therefore, when any statute speaks of a fair, a market should also be
comprehended."
The specific difference between a fair and a market appears to be that a fair is held less frequently, it generally
extends over a longer continuous period, and is of a more miscellaneous character than a market. It will be seen
hereafter that difficulties have arisen in consequence of the Local Government Board having been advised by the
Law Officers of the Crown that the powers of sanitary authorities with regard to markets do not extend to fairs.
Of both MARKETS and FAIRS it may be said that there are three characteristic and essential elements.
1. An authority conceded,
2. A place more or less defined, and
3. A time specified.
On these three subjects it is proposed to offer some observations, but before approaching the question of the authority
by which markets are now established, it will be desirable to take a brief survey of the history of markets and
fairs.
This portion of the subject has been fully investigated under our authority by Mr. C. J. Elton, Q.C., M.P., a member
of this Commission, and Mr. B. F. C. Costelloe, an Assistant Commissioner, and their interesting and valuable report,
with an appendix of charters and records, has been already presented to Your Majesty.
In this Report the origin of markets and fairs is traced out, and the several stages in their growth and development
are described.
We must content ourselves with a few extracts from this volume, and refer those who desire to examine the subject
further to the volume itself.
In this report there is abundant evidence that in various countries and from a very remote period, the State has
claimed and exercised the prerogative right of establishing markets.
The ancient records of this kingdom show a continuous series of grants of market rights from the Crown, and the
rolls of the courts of law furnish numerous instances of the jealous care with which the Crown has guarded its
own rights ; protected the rights of its grantees and on the other hand restrained them from abusing the privileges
they possessed.
ORIGIN AND HISTORY OF MARKETS.
Markets of some sort, or opportunities for bartering and exchanging goods must have been a necessity in the most primitive stages of a civilised community, and it is easy to imagine that the State, from the earliest days, found it desirable to protect 'such markets, and, as society became more organised, to extend and increase them
In the Report to which we have referred, it is stated that -
" Markets and fairs are probably quite distinct in their origin, although the legal considerations governing
them have come to be so far analogous that they are classed together."
And subsequently that while -
" The fair appears then to have been originally an institution derived from ancient tribal and national usages
expanding in later times with the growth of the royal prerogative and the increasing necessities of commerce ;
the market, on the other hand , bears signs of having been modelled on the rules of the Civil Law "
" Before the close of the Republic, the Senate claimed and exercised. a jurisdiction to grant or refuse market
rights, and a passage in Pliny's letters (Epist.v. 4 ), shows that neighbouring Municipia were entitled to be heard
by counsel against the application of the landowner in a way which closely resembles our later system of inquisitions
' ad quod damnum '. "
At a later period it is found that -
The Frankish Kings, and afterwards the Emperors, exercised a prerogative Vol. 1., p. 9 over all matters of trade
and traffic, including the right of establishing markets and fairs, and of exacting tolls on transport and on sales
within particular and the privilege was one of that kind which could be detached from the other rights of the Crown
and transferred as a franchise into the possession of a subject. "
Coming then to the history of our own country..
We find in like manner that in the early English kingdoms the right of holding markets was among the jura regaila
which might be made matter of grant. 'The grant of a market,' says Kemble, 'with power to levy tolls and exercise
police authority therein was a royalty in the period of the consolidated monarchy.' Closely connected with it was
the right to keep a private beam or steelyard, a yard and bushel ....... In close connection with these rights
was the system of exacting tolls in ports and harbours, and upon transport by roads, bridges and navigable rivers,
which, both in England and on the continent, the kings might either remit in favour of individuals, or might empower
an individual to take thus, in the first instance, creating for them a commercial monopoly of the greatest value
by enabling them to enter the market on terms of advantage, "
Several instances of early grants from the Crown given in the Report throw light on the nature of the rights conferred,
and the conclusion is reached that -
The English market system grew up by means of royal grants of monopolies to individuals: even when the franchise
enjoyed by a corporation, its origin was independent in theory of the ordinary municipal privileges."
Fairs With regard to fairs we extract the following passages from this Report :
The word ' fair' appears to be properly used to include what Coke speaks of as a mart. It signifies a gathering at the time of one of the annual feasts and seems to derive its name not from " forum " but from " feria," which is the proper ecclesiastical term for a saint's day. The feasts or wakes of the patron saints of the villages or districts may in some cases represent a continuation of pagan festivals allowed to survive from motives of public policy.
There are early records which show that the gatherings at such festivals were used not only for religious purposes, but also for pleasure and business, and were from the beginning specially utilised for the purposes of trade and commerce.
The concourse of persons from a distance on these occasions appears to have been facilitated from very early times
by provisions for proclaiming a special 'truce,' which were directly perpetuated in the so-called 'Peace of the
Fair,' or the .' Treva regis,' such as that referred to in the Domesday account of Dover.
"The Peace of the Fair is further elucidated by a reference to the Scottish law of the four Burghs.
This is the Ordinance of the Peace of Fairs in a Royal Burgh on the hither side of the water of Forth, to wit:
That from the time when the Peace of the Fair is proclaimed no man be taken nor attached within the time of that
Fair, either in coming to the Fair or in passing thence or in sojourning in the Fair itself, unless he has broken
the Peace of the Fair, or unless he be an outlaw of the Lord King or the King's traitor, or such a misdoer as the
Peace of Holy Church ought not to save. And if he be such a misdoer or have broken the Peace of the Fair he shall
be attached securely until the Moot of that Fair, and there he shall stand for his right, and justice shall be
done in the matter whereof he has beer charged."
"Fairs may indeed have been institutions of considerable importance with respect to their influence on the
course of trade and the development of mercantile law. As has been already suggested, they seem to have contributed
to secure the peace of the roads, and to have established times of local 'truce.' They had their own law courts,
and the fact that these courts acted with the aid and for the benefit of merchants from all parts must have tended
to consolidate the mercantile law. There is very little reference to fairs in the collections of laws or other
authorities relating to the period of English history preceding the Norman. Conquest, although there is no reason
to doubt that such annual gatherings took place in many parts of England throughout the whole period between the
establishment of the Teutonic kingdoms in England and the imposition of the Norman Constitution,. Circumstances
lead us to infer that such fairs as existed before the Norman Conquest " were of little pecuniary value.".
"There can, however, be no doubt that after the Norman Conquest the fair was treated as a valuable franchise
derived from the prerogative of the Crown, and yielding a revenue in tolls and other profits to the King or the
grantee of the franchise."
"With the development of foreign trade under the Plantagenet Kings the system of annual fairs undoubtedly
attained a great importance. The advantage of the fair was of a double character. It supplied, as Professor Rogers
says, 'a market in which goods which could not be found in the ordinary town market would be procurable, and in
which there would be a wider market for ordinary goods.' The value of the franchise was as great to the town traders
as to the foreign merchants and chapmen."
The importance and value of fairs must have been greatly increased by the special protection which was afforded
to those on their way to, at, and from a fair. And if, as is suggested, the law of "market overt" grew
out of the practices of merchants at fairs, these gatherings contributed to lay the foundations of the market system.
INCIDENTS AND CUSTOMS OF FAIRS AND MARKETS - CUSTOM OF MARKET OVERT
"Although nothing directly bearing on this point is found in our insular codes, there statement as to the German fairs in the ninth century, which shows that the usage was well known on the continent. This statement is found in the works of Notker, one of the St. Gall writers, living about 850 A.D., who says that 'merchants contend that the purchase which is made at an annual fair should be valid, whether it be just or unjust, because it is their custom.'
On this subject Mr. G. P. Goldney, the City Remembrancer, gives the following evidence :-
In old times there was also another very considerable benefit to be derived from them, (i.e., markets) and that
was that, whereas in the private sale of goods the vendor could give no better title to the goods than he himself
possessed, and therefore the purchaser would by law be compelled to restore them to anyone who could prove a better
title, by sale in what was called 'market overt' the purchaser tired a perfectly good title, acquired a perfectly
good title, of course direct fraud being supposed to be absent It was for this purpose as stated in the legal treatise
known as 'The Mirror of Justice' (attributed to a certain Andrew Horne, an eminent citizen and fishmonger who also
served the office of City Chamberlain and died in 1828), that tolls were established in markets in order to testify
the making of contracts; and there is no doubt that in old times all market bargains were made before an official,
whether the Reeve, or some person appointed by him, or, in many cases, before two or three witnesses. It is also
undoubtedly the case that in Saxon times private contracts above the value of twenty pence were entirely discountenanced,
and everything of a superior value was obliged to be sold before witnesses."
And on the same point Messrs. Elton and Costelloe observe as follows :-
" The laws of Ina had provided, as early as A.D. 690, that no one should buy anything outside a town except
in the presence of credible men. Almost all the early English codes provided for publicity of sales."
In the course of the 10th century an effort appears to have been made to prevent buying and selling, even of cattle,
except in a market town ....... In the Athelstan, passed at the Witan of Greatanlea about 925 A.D., it is enacted.
That none shall buy any property without port, . . but the bargain shall be within port, on the witness of the
Portreeve or other unlying man, or with the after witness of the reeves at the folc-mote. This severe enactment
was, however, repealed within 10 years.
The laws attributed to William the Conqueror reverted to the severe legislation of the earlier kings, bargains
and sales outside the towns being prohibited, and being only allowed in any case if made before three credible
witnesses, on pain of paying a fine besides. According to the extant version of these laws in the so-called 'Charter
of the Conqueror,' sales ,were only alowed to take place in cities, boroughs, walled towns, castles, and other
safe places where there was sufficient good government and security to ensure respect for the authority of the
common law and the maintenance of the rights of the Crown . The reasons here given for the supposed prohibition
of country markets may be due to an afterthought of the Norman lawyers, the principle of the English Laws on the
subject having been based on the expediency of having a special class of witnesses for the transfer of property."
Toll
It is possible that at one time the franchise called 'tol or 'theloneum' may have included the liberty of setting up markets and regulating trade throughout all the lands belonging to the grantee of the privilege. But it is clear that in the 11th century the principle had been adopted, whether it was formally enacted by William the Conqueror or not, that markets and tolls should be confined to those places which were appropriated to such uses by custom or charter, or which should so appropriated by the King or a mesne lord acting under authority delegated by the Crown."
Although toll is not incident to a fair or market without a special grant, it is probable that few market owners
were without this right, which with other dues such as stallage and piccage rendered the privilege valuable; but
even independently of any value which a market or fair might possess as a source of revenue, it can be easily understood
that the indirect advantages of a monopoly of this character were such that grant from the Crown conferring the
right to establish a market was eagerly sought for.
COURT OF PIE- POUDRE
An ordinary incident of a market or fair was the Court of Pye Poudre, which was A court of summary jurisdiction, as to contracts in the market or fair for goods there brought and sold, for battery or disturbance there, or for words to the slander of wares in the market there."
The Court is described by Blackstone in his Commentaries as
" A court of record incident to every fair and market of which the steward of him who owns or has the toll
of the market is the judge and its jurisdiction extends to administer justice for all commercial injuries done
in that very fair or market and not in any preceding one, so that the injury must be done complained of heard and.
determined within the compass of one and the same day unless the fair continues longer "
This Court is now practically obsolete, though we have received some evidence of a Court known as the Tolsey Court,
being held at Bristol as late as the year 1885, and we may refer to the statute of 17 Ed. IV. cap. 2 as describing
the duties to be performed at such Courts.
It has been already noted that closely connected with the right of holding a market, was that of keeping standard
weights and measures, and it may be added that the market owners, in some cases at least, provided sworn meters
for measuring cloth, corn, salt, &c, It was apparently their duty to examine weights and measures and to hold
assize of cloth and bread and ale, and in the proceedings in Quo Warranto, owners are called in question for not
keeping tumbril and pillory for the corporal punishment of offenders, or for taking fines in place of inflicting
such punishment.
By the statute of Northampton 2 Edw. III. c. 15, the Lord of a fair was bound at its commencement to publish the
time for which it was to continue, and these proclamations were apparently made the opportunity for laying down
regulations for the peace and order of the fairs. Mr. W. Casson produced in evidence a copy of a proclamation,
still used, and made by the bailiff of the Manor of Broughton in Furness.
GRANTS OF MARKETS AND FAIRS
The calendar of grants of market and fairs given in Vol. I., contains a list of more than 2,800 grants in about 285 years [AD. 1199-1483]. More than half of these were made in the first 74 years of the period, viz., during the reigns of John and Henry 3rd.
Specimens of similar grants in the 17th & 18th centuries are given in the Appendix to Vol. I., and a complete
list of those recorded in the Patent Rolls since A.D. 1700 is given in the Appendix to our Report.
INQUISITIONS CONCERNING MARKETS AND FAIRS
"The records called the Hundred Rolls and the Placita de Quo Warranto contain a considerable amount of information as to the development of our market system. One of the first Acts of Edward I. on his return to England from the Crusade was to inquire into the state of the royal demesnes, and of the rights and revenues of the Crown, including an inquiry into the conduct of the sheriffs and other officers who might have defrauded the Crown or oppressed the people by exactions. Among the Articles into which the justices itinerant inquired in their ordinary septennial circuits there were many which bore on questions of trade and commerce....... Among the new pleas to be inquired into were those relating to weights and measures: to the sale of wine in breach of the assize in cities, boroughs, and other market towns: to the levying of new tolls and customs: to the change of markets from one day to another Without the King's licence, unless the change were from a Sunday. to a week day: and to the erection of new markets without the royal licence and authority............. The King issued a special commission directing the justiciaries to make inquiry (inter alia) into liberties, fairs, markets, &c ........... The juries had power to make presentments as to all cases of the exaction of illegal tolls, or as to interference with trade by improper claims of rights as to fairs and markets. The Commissioners having in the next year returned their rolls of inquisitions certain rolls were drawn up, containing a selection under the denomination of Extracts.
The Hundred Rolls taken under a special commission of the 7th year of Edward I., also form a valuable survey of
certain counties The Statute of Gloucester, enacted in the 6th year of the reign of Edward I., of which the first
part relates to liberties and franchises, appears to have been based upon the inquisitions taken under the commission
issued at the beginning of the reign ........ By virtue of its provisions proceedings were instituted against a
great number of persons as to whom the juries, had presented that their franchises were illegally claimed, or that
the title thereto was unknown, the parties being summoned to answer in proceedings on Quo Warranto by what title
they claimed to have the rights as to which the presentments had, been made. The rolls of the pleadings in answer
to these charges and the judgments thereon for the reign of Edward 1. and his two immediate successors are known
as the Placita de Quo Warranto,' and were printed by command under that title in 1818 . Specimen extracts from
the Records themselves will be found in the Appendix to Vol. I."
Among the subjects of complaint specified in these pleas are the setting up of illegal markets - of markets without
warrant - of markets to the prejudice of the King or others who were owners of markets in the neighborhood - of
the exaction of illegal increased or new tolls - of the taking toll at improper times and places - of the demand
of toll from those who claim to be toll free, &c.
In one instance, at least, the offence appear to have been not holding the market and fair, for the verdict was,
that the owner had kept the market and fair as far as it lay in his power, for it often happened that none came
there to do business.
As an indication of the classes who owned or claimed markets and fairs at this period, it may be noted that in
the entries from the Quo Warranto Rolls, the claimants, were as follows :-
| Private or individual owners | - - - - - | 202 |
| Religious houses or church dignitaries | - - - | 116 |
| Burgesses and associations of merchants | - - - | 15 |
| Claimants not distinguished | - - - - | 32 |
| -------------------------- Total | 365 |
By means of these inquisitions, the duties of market owners were enforced, and public and the honest trader were protected and benefited, and if the owners had receiveded in the grant a privilege and monopoly they were called upon to discharge to duties in return for their rights. Mr. Casson urges this point in his Evidence.
The common law text books state very clearly that originally market owners
were required to perform certain duties. The principal among these was the settlement of disputes, and in other
ways they were required to protect the market generally against inroad and of course in turbulent times they undertook
the protection of the people and of the goods in the market."
MARKET MONOPOLY.
The franchise of a fair or market being recognised as a monopoly and valuable
privilege the owners naturally objected to any extension of similar privileges to a place in their own neighborhood
which might compete with them.
There was everywhere great jealousy of the invasion of a profitable monopoly by the usurpation of new trading privileges.
Whenever any grant of a new market or toll was solicited from the Crown it was necessary to inquire by a jury on
a writ ad quod damnum, whether the grant was prejudical to the King or to others in case it should be made, and
the charters of grant were framed with a saving clause to protect the interests of the owners of neighboring markets.
Bracton, in his treatise De Legibus (f- 235), states that a market would be a nuisance if set up within six and two-thirds of a mile from the site of an existing market. His reason for selecting this limit was that an ordinary day's walk may be taken at 2O miles, and that dividing the time into three portions, the morning will be used in going to market, the middle of the day in buying and selling, and the other third part of the time in returning home. He observes that the time allowed for business may not be enough for the 'mercatores stellati,' or chapmen exposing their wares on stalls, and he points out that the market folk had to get home by daylight, because of the abundance of robbers."
It has been already stated that the English market system grew up by means of Royal grants, and it may be said
broadly that until a comparatively recent period the ordinary means by which a market was established was by soliciting
and obtaining a grant from the Crown. But some notice
may here be taken of the concurrent action occasionally taken by Parliament as in the first year of Edward the
Third, when a statute charter confirmed the liberties, customs, and privileges of the city of London, and granted
that no market within seven miles roundabout the aforesaid city shall be granted by us or our heirs " This Charter has been critically examined and expounded in the House of Lords by the Lords
of Appeal in the recent case of The Great Eastern
Railway Company v Goldsmid. Lord Selborne (L.C.) in giving judgment said
-
"The document of the first year of Edward the Third may, I think, perhaps be justly reckoned, allowing for
the difference of the usage of very ancient times from that of the times in which we live, as being either in the
same category, or a similar category, with those statutes which we now call private or local and personal Acts
Of Parliament."
And Lord Blackburn and Lord Fitzgerald concurred in this view. The former spoke of this Charter as granting nothing
but what the King could have granted himself by prerogative. The Rolls of Parliament record several grants of markets
and fairs, some of which are apparently an enrollment of Charters from the Crown. There are also concessions to
grantees permitting them to change either the place or the time for holding the market or fair. The famous fair
at Winchester having been seized by the Crown Escheator because it had been kept beyond its proper term was re-granted
to its former owner. Markets which had been set up to the injury of other lawful markets were put down; various
complaints on the subject of markets were ordered to be inquired into, and in one case - that of the Rector of
Wigan, who complained of an infringement of his rights by the burgesses of the town - the complainant was referred
to the Law Courts for a remedy.
An entry on the Rolls of the 21 Edward I. indicates a disposition on the part of Parliament to question the right
of grantees to give, sell, or otherwise concede to strangers the franchises which had been granted to them. In
reply the King's prerogative is strongly asserted; the matter is referred to the judges and does not appear to
have been followed up.
Whatever opinion may be entertained as to the action of Parliament in these cases it seems unquestionable that
the Sovereign, by his prerogative right, and without any reference to Parliament, granted market and fair rights
from an early period down to the present reign. The calendar of applications for grants of markets and fairs, and
of the grants thereof enrolled on the Patent Rolls between 1700 and 1846 A.D., to which we have referred, has been
compiled for us from materials in the Public Record Office, from which it will appear that the actual number of
grants during that period was inconsiderable. Leaving out of account those grants which confirmed, extended, or
varied rights previously existing, we have in England and Wales, exclusive of the metropolis, only 24 markets created
during 147 years; while during the 46 years of this present century only 11 grants have been made. Two of these
were grants of markets in the metropolis; three extended existing rights; and in three of the remaining instances
no markets are now in existence.
The mode of procedure in the case of an application for a grant from the Crown is thus described in the 2nd report
of the Deputy Keeper of the Public Records (1841).
Grants of markets require the ancient process of a writ ad quod damnum, which is issued by the clerk of the petty
bag as cursitor. The authority for this writ is the fiat of the Attorney-General, which is granted very much as
a matter of course. The writ is directed to the sheriff of the county, and the verdict or inquisition of the jury
being that Your Majesty's grant will not be to the damage of Your Majesty or your lieges it is returned into the
petty bag office. The party then applies by permission to Your Majesty transmitting at the same time an office
copy of the inquisition An order of reference is then made to the Attorney - General as to the expediency of granting
the market, and if the report be favourable Your Majesty's warrant follows. While, however, the prerogative right
of the Crown has never been formally surrendered, Parliament has freely sanctioned the establishment of new markets,
both by special local Acts and by general legislation.
It would be difficult to state what was the earliest instance of an establishment of a new market by Act of Parliament.
Many of the Acts relating to markets confirmed or extended existing rights, or sanctioned the transfer of such
rights from individuals to local authorities, or to private trading companies.
The passing of the Local Government Act of 1858 may be said to have inaugurated a new era in the history of markets, since it gave to local authorities conditional powers to establish markets.
Before the passing of this Act, the " Markets and Fairs Clauses Act, 1847," had formulated a scheme for
the establishment and regulation of markets, but its application was limited to those cases where its provisions
should subsequently be incorporated in an Act of Parliament. The object and scope of this Act are thus defined
in the Preamble thereto :-
Whereas it is expedient to comprise in One Act sundry Provisions usually contained in Acts of Parliament authorising the Construction or Regulation of Markets and Fairs, and that as well for avoiding the Necessity of repeating such Provisions in each of the several Acts relating to such Undertakings as for ensuring greater Uniformity in the Provisions themselves. Be it enacted; &c.
This Act shall extend only to such Markets or Fairs as shall be authorised by any act of Parliament hereafter to
be passed which shall declare that this Act shall be incorporated therewith."
Some of the Clauses of this Act were subsequently incorporated in the Local Government Act, 1858, and afterwards
in the Public Health Act, 1875.
The last-named Act has superseded the Act of 1858, and being now in force it will desirable to state what are the
powers conferred by it on public bodies with regard to markets.
A Digest of these provisions was handed in by Mr. S. B. Provis, C.B., Assistant Secretary to the Local Government
Board, and his evidence may be referred to. The Act empowers Local Authorities under certain conditions to establish
markets to acquire, by purchase, or lease, public or private rights in markets and tolls ;- to purchase or take
on lease lands ;- to provide buildings and all matters and things that necessary for the convenient use of the
market ; - to make byelaws for the regulation and management of markets ;- and. to take stallages, rents, and tolls
for use of the market.
The Local Authorities, upon whom these powers are conferred, are practically Urban Sanitary Authorities, which
include Boroughs, Improvement Act districts, (i.e. districts constituted by local Acts under Improvement Commissions,)
and Local Districts (i.e., districts formed under the Public Health Act, 1875).
The authorities of Rural Sanitary Districts, which include the whole of England and Wales not within an Urban Sanitary
District or the Metropolis, may be invested by the Government Board with all or any of the powers of Urban Authorities;
but the board have never exercised this power, partly because they have very rarely been asked to do so, but also
for other reasons which are stated by Mr. Provis.
In the case of a Borough it is necessary that the Town Council should obtain the consent of two-thirds of that
body in order to enable them to exercise the powers conferred by the Public Health Act. Improvement Commissioners
and Local Boards must, in like manner, obtain the consent of the owners and ratepayers at a meeting convened for
the purpose, on the requisition of 20 owners or ratepayers.
The powers of the Local Authorities are, however, limited by section 166 of the Act, which expressly provides that
no market shall be established in pursuance of it so as to interfere with any rights, powers, or privileges enjoyed
within the district by any person, without his consent. The question as to what constitutes such an interference
can only be decided by a court of law.
But cases which are cited in the Digest, show that the powers of local authorities are narrowed and circumscribed
in two different directions by section 166 of the Public Health Act :-
(1.) They cannot set up a market
to the injury of any existing market and (2)
in removing a market rights and (2)
in removing a market they ru the risk of interfering with vested rights which owners of property in the vicinity
of the market may have acquired.
Powers of Local Authorities Under The Public Health Act ..
Local Authorities availing themselves of the powers of the Public Health Act, with regard to markets, must obtain
the approval of the Local Government Board; (a)
to borrow money under the Public Health Act; (b)
to purchase land compulsorily; (c)
to make byelaws; (d) and to
levy tolls where no tolls have been levied previously in connexion with markets.
(a) Borrowing Powers.
With regard to borrowing powers, the Statute allows the authorities to borrow for such period, not exceeding 60
years, as they with the consent of the Local Government Board may determine, and the term for repayment is always
one of the points which is considered by the Board in connexion with the borrowing of money.
The amount borrowed must not exceed two years rateable value of the district, and if it is over one year's rateable
value the sanction of the Board cannot be given without a previous local inquiry.
The security for the loan is a mortgage of the rates out of which the expenses of the Urban Sanitary Authority
are defrayed - that is the general district rate to which land is rated at one-fourth. Under the Public Health
Act neither the market itself nor the tolls can be mortgaged. The amount of outstanding loans for markets alone
was, in 1887, in the case of town councils, 1,900,000l., and in the case of other urban authorities, 257,0001.
Loans are repayable either by equal annual installments of principal, or principal and interest combined, or by
means of a sinking fund, at the option of the local authority.
(b.) Compulsory purchase of Land
After certain statutory notices have been given, and a petition presented
to the Local Government Board, a local inquiry is held. If the Board approves, a Provisional Order is made; and,
unless opposed, is carried through Parliament in the Usual manner.
(c.) Byelaws.
An Urban Sanitary Authority may, with respect to any market belonging
to them, make byelaws for the regulation of the market. These will not take effect until after they have been confirmed
by the Local Government Board. Before such confirmation they must, have been published in the local newspapers,
and the Local Government Board are empowered to allow or disallow them. The Local Government Board have issued
a model series of byelaws on which local byelaws are founded.
(d) Tolls.
Where a Sanitary Authority acquire a market in which tolls are already
charged they may levy those tolls without the sanction of the Board, but any alteration of these tolls must be
approved as in the case of a new market.
A question has arisen as to the power of the Local Authorities to make byelaws and levy tolls, &c., where the
market is held in the streets and a market place has not been provided. The law officers, as we are informed, advised
that the authorities might deal with such markets -under the Public -Health Act, notwithstanding the express provision
of the 31st section of the Markets and Fairs Clauses Act, 1847, that the market authority are not to demand or
receive any stallage rent or toll until the market-place . . . in respect of the use of which the same is demanded
is completed and fit for the use of the persons resorting to it.
The approval of the Local Government Board is not necessary for charging stallages and rents.
A market having been established under the Public Health Act, and a market-place provided, restrictions are imposed
upon the sale of articles outside the market, which may be sold in the market. These restrictions have been a fertile
source of annoyance and complaint. This subject will he dealt with more fully hereafter.
Local Authorities (in England and Wales) have thus at the present time ample powers for the creation of a new market
where there are no existing market rights to be injuriously affected by such an establishment ; and for the acquirement
by arrangement of any existing rights; but they have no statutory power to acquire compulsorily such rights, and
the only means by which such an object can now be accomplished is by the authority of Parliament.
The provisions of the Public Health Act with regard to markets do not extend to the Metropolis in which new markets
can only be set up by grant from the Crown Or by an Act of Parliament
SUMMARY
To sum up the result of this somewhat lengthened survey it may bestated that from the earliest time to the present day the State, either by the authority of the Sovereign alone or of Parliament, has created and originated markets, and that without such authority no legal market can be set up; that until recently each grant of a market was a separate and distinct act; but that now local authorities have a presumption in favour of their claim to set up a market, and the means for their carrying out that object are prescribed by public statutes.
We have thus far dealt mainly with the question of the authority under which markets are held though incidentally
the conditions as to place and time which affect the action of market owners have been alluded to - we subjoin
a few remarks, on these subjects
2. A market or fair is limited to a particular place or district.
Mr.S. B. Provis, handed in to us a "Digest of legal decisions in
cases relating to markets which bad been prepared by the Local Government Board. This Digest is printed in the
Appendix to this Report
It appears from this Digest and from other evidence which we have received that ordinarily the holder of a market
has the right of removal, within certain limits, and of setting up new and additional markets within those limits.
"The Lord of a manor to whom a grant of a market is made infra Villam de W . . may hold anywhere infra Villam
de W...... the lord has a right to remove the market place from one situation to another within the precinct of
his grant." .
In another case it was held that " the right of removal was incident to the grant." Mr.G.F. Goldney in
his Evidence quotes the following passage from 3 Clark and Finelly's House of Lords Cases :- "A grantee of
a market may hold it ,any where he pleases within certain limits or in more places than one , and may change the
place in which it is held .....
Other cases cited in the Digest show that The power of removal depends upon the nature of the grant, and the exercise
of the power is limited by many considerations and surrounded with difficulties.
3. Fair rights are limited to a time specified
Grants of market and fairs usually specify the days on which they are to be held, and in the extracts from the
Abbreviatio Placitorum in the appendix to Vol. I. Will be found several cases where owners of markets were amerced
for having changed the day without licence.
Where the grant specifies certain days on which the market is to be held no length of user entitle the grantee
to hold markets on other days."
It has been contended that the grantee forfeits his right if he holds his market on another day than that specified.
On this point Comyns, a recognised authority, states -
By Statue Northampton ,2 Edward III 15, if a man holds a fair beyond, the time allowed he forfeits the franchise.
So if he hold his market at another day.
But if a man hold his market upon the day allowed, and upon another day, he shall not forrfeit his market, but
shall be punished for the addition of the day.
We have previously noticed a record that the fair at Winchester was escheated as kept beyond the authorised period,
and we have had evidence of a market which is reputed to have escheated to the Lord of the manor in consequence
of an unauthorised change in the day of holding it.
Mr. A. H. Malim, Town Clerk Of Grantham, states that the Corporation of Grantham, holding a market under a Charter
of Charles I., changed the day about 130 years ago, and as a consequence the Lord of the manor claimed the market
'and became the owner. There is little doubt that in many cases changes have been made without authority and without
forfeiture.
The calendar of modern grants from the Crown contains several instances of a change of day being sanctioned, the
last grant of the kind being made to the late Lord Palmerston in 1827.
Local Authorities acting under the Markets and Fairs Clauses Act, or the Public Health Act can however, subject
to the consent of the Local Government Board, make byelaws, and by these they can fix the days and hours for holding
markets. They may thus convert a market granted for one day in the week into one held every day .
