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The constitutional history of England in its origin and development, Volume 3 online

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their charters, by which they were entitled to the same liberties

as London. In those towns in which there was no mayor the

presidency of the local courts remained with the bailifiB, whether

elected by the townsmen or nominated by the lord of the town.

The development however of the idea of municipal completeness

as represented by a mayor and aldermen may be placed at the

very beginning of the thirteenth century*.

^ ' Hoc anno fiienmi xxv electi de dlBcretioribafl dvitatis et jurati pro
oonsolendo dvitatem una cum majore*; Lib. de Antt. Legg. p. 2. There
are now twenty-six wards, two of them sub^visions of older wards. One,
* Cordwainer/ retains the name of a guild ; Castle Baynard that of a mag-
nate, Portsoken that of the ancient jurisdiction of the Cnihtengild and
Portreeve. All the rest are local diyisions. Faringdon Without was
created in 1394; Rot. ParL iii. 317. In 1220 the Aldermanni acted with
the * magnates civitatLs ' in framing a law ; Lib. de. Antt. Legg. p. 6. These
must have been the aldermen of Uie wards, the magnates being the lords
of franchises, such as the lord of Castle Baynard, and the eoclesiastical
dignitaries who joined in the government of the city, such as the Prior of
Trinity Aldgate.

* See Madox, Hist. Exch. p. 490. Of the wards there mentioned all are
designated hy the name of the alderman of the time except the ' Warda
Fori,' or Cheap, Portsoken, and Bassishaw ; Michael de S. Elena was pro-
bably the alderman of Bishopsgate ward. Under Edward II the wards
had all acquired the names which they still bear; ib. p. 694; flrma
Buigi, p. 30. In a list of aldermen of adulterine guilds in 11 80, three
appear as aldermen of the Gilda de Ponte.

^ The following towns are mentioned as having mayors in the Rolls of
John: Bristol, York, Ipswich, London, Lynn, NorUiampton, Norwich,
Oxford, and Winchester.

VOL. in.

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^62 Constitutional History. [chap.

BelatioDs of The bistory of the merchant guild, in its relation to the cnft

guild on the one hand, and to the municipal govemment on the

Importance other, is very complex. In its main features it is a most im-

gle for clan' portant illustration of the principle which constantlj forces

''^^^^ itself forward in medieval history, that the vindication of class

privileges is one of the most effective ways of securing pablic

liberty, so long as public liberty is endangered by the general

pressure of tyranny. At one time the church stands alone in

her opposition to despotism, with her free instincts roused by

the determination to secure the privilege of her ministers; at

another the mercantile class purchase for themselves rights

and immunities which keep before the eyes of the less highly

favoured the possibility of gaining similar privileges. In boHi

cases it is to some extent an acquisition of exclusive privilege,

an assertion of a right which, if the surrounding classes were

already free, would look like usurpation, but which, when they

are downtrodden, gives a glimpse and is itself an instalment of

liberty. But when the general liberty, towards which the class

privilege was an important step, has been fully obtained, it is

not unnatural that the classes which led the way to that liberty

should endeavour to retain all honours and privileges which they

can retain without harm to the public welfare. But the original

quality of exclusiveness which defined the circle for which privilege

was claimed still exists ; still it is an immunity, a privilege in its

strict meaning, and as such it involves an exception in its own

favour to the general rules of the liberty now acquired by the

community around it ; and if this is so, it may exercise a power

as great for harm as it was at first for good. Such is one of the

laws of the history of all privileged corporations ; fortonately

it is not the only law, and its working is not the whole of their

history. It applies however directly to the guild system.

Antiquity of The great institution of the * gilda mercatoria*^ runs back, as
theguildiB« o o J

we have seen, to the Norman Conquest and hr beyond it ; the

craft gtiilds, tiie 'gilda telariorum,' the 'gilda corvesarioruin *
and the like, are scarcely less ancient in origin, but come promi-
nently forward in the middle of the twelfth century. The
^gilda mercatoria' may be regarded as standing to the craft ;



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XXI.] Merchant Ouilds. 563

guilds either incluBiyely or exclusively; it might incorporate Beifttion of
them and attempt to regulate them, or it might regard them mercatoHa to
with jealousy, and attempt to suppress them. Probably ingnOda.
different places and at different stages it did both. It would
be generally true to say that, when and where the merchant
guild continued to exist apart from the judicial machinery of
the town, as a board for local trade and financial administra-
tion, it incorporated and managed the craft guilds ; but, when
and where it merged its existence in the goyeming body of the
town, identifying itself with the corporation and only retaining
a formal existence as the machinery for admitting freemen to a
participation of the privileges of the town, it became an object
with the craft guilds to assert their own independence and even
to wrest from the governing body judicial authority over their
own members.

The charter granted by Henry 11 to Oxford distinctly lays down Power of the
the principle that the merchant guDd has an exclusive right of ffoudtoiegu-
regulating trade except in specified cases ^ ; it is provided that no
one who is not of the guildhall shall exercise any merchandise
in the town or suburbs, except as was customary in the reign
of Henry I, when, as we know from the Pipe Bolls, the craft
guilds of weavers and cordwainers had purchased their freedom
by finest We may infer from this that, wherever such excep-
tions had not been purchased, the merchant guild possessed full
power of regulating trade. In the charter granted to the city
of Worcester by Henry III a similar provision is inserted, and
at Worcester as late as 1467 we find the citizens in their ' yeld
merchant ' making for the craft guilds regulations which imply
that they had full authority over them '.

When the merchant guild had become identified with thcThemer-
corporation or governing body, its power of regulation of trade mergeShi
passed, together with its other functions and properties, into the tkjtL*^'^*"*".

' Select Charten (and ed.), p. 167 ; Pealudl's Oxford, p. 339. So also
the Charter granted by Henry III to Worcester ; Madox, Firma Borgi,
p. 37a ; and other ingtanoeB noted above, vol. i. p. 417.

' In the charter of Oxford the exceptions are * nld meat solebat tempore
regis Henrici avi mei ' ; in that of Worcester ' nisv da volontate eomndem
civinm.'

' Smith's English Oflds, pp. 371-413.

2

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564 Constitutional History. [chap.

same hands. It is probable that this is true in all cases except
where the towns continued to be in the demesne of a lord who
exercised the jurisdiction through his own officers, as the ardi-
Caaesin bishop of Tork did at Beverley. In that town the merchant
merchant guild administered the property of the town, regulated trade,
not the^ &nd exercised most of the functions which the ' local boards ' of
l«dyof%e modem towns now possess; it elected the twelve governours
of the town annually ; but the courts were held in the arch-
bishop's name and by his bailiffs, down to the reign of Henry
VJLLI ^. But as a rule it was otherwise : the ancient towns in
demesne of the crown either possessed a hundredal jurisdiction
at the time of the Conquest or obtained * sac and soc ' by grant
from the crown ^ ; as soon as they obtained the exclusion of the
sheri£fe and the right of electing their magistrates, they were
municipally complete; and then the merchant guild merged
Union of the its existence in the corporation. In some cases it dropped
guild with altogether out of sight ; at Tork for instance it had either been
juriadiotion. forgotten, or newly organised as a merchants' company, one
among many craft guilds, at the beginning of the fifteenth cen-
tury': and at London it is uncertain whether any primitive
merchant guild ever existed. But, even where the name was
suppressed, the function of admitting freemen was discharged
in such a way as proved that the powers exercised by the cor-
poration were those of the old merchant guild. At York the
right of freedom was acquired by birth, apprenticeship or
The office purchase : the admission of apprentices was subject to the juris-
lain. diction of eight chamberlains*, who were no doubt anciently

guild officers ; and, as all apprenticeship was transacted through
the members of the craft guilds, the older relation between the

^ See Scaum's Beverlao, pasHim ; and below, p. 583.

' Ab for example Dunwich ; Select Charters, p. 303 ; Worcester, Naah^t
Worcestershire, vol. ii. App. p. ex ; the Cnihtengild of London, Madox,
Firma Burgi, p. 33.

* So also at Beverley there is a Mercers' guild, pp. 254, 255 ; at Coventiy
a new merchant guild is instituted in 1340 ; Smith s Gilds, p. 226.

* Drake, Eboracum, pp. 187, 199. One of the earliest custumals in whidi
freedom of the town is mentioned is that of Kewcastle-upon-Tyne, where
it is said * si burgensis habeat filium in domo sua ad mensam suam, filins
ejus eandem habeat libertatem quam et pater suus *; Acts of Pari of Scot-
land* i- 33. 34-



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XXI.] Merchant Ouilch. 565

two iDstitutions must be regarded as continuously subsisting.
In Leicester the connexion is still more clear; for there the
admission to freedom was distinctly designated as admission to
the merchant guild \ At Oxford the freemen were admitted to the
finiild and liberty of the whole city. In other places, such as Merchant

^ . T \ ' ^ . . SuUdgat

Preston m Lancashire, where, owing to some ancient custom or en- Leicester
dowment, the idea of the guild had been kept prominently in view
as furnishing occasion for a splendid pageant, the name was still
more permanent, and the powers of the guild were more dis-
tinctly maintained. But in all these cases it may be said that the
'^da mercatoria' had become a phase or ' function' of the cor-
poration ; where there was no ancient merchant guild, or its ex-
istence had been forgotten, the admission of freemen to a share in
the duties and privileges of burghership was a part of the business
of the leet*. Whether apart from, or identified with, the governing
body of the borough, the relation of the merchant guild to the
craft guilds may on this hypothesis be regarded as correspond-
ing with the relation subsisting at Oxford and Cambridge
between the University and the Colleges with their members.
Lastly, in some places probably, as at Berwick, the several craft
guilds having united to form a single town guild, all trade
organisation and administration was lodged, by a reverse pro-
cess, in the governing body of the town ^.

When the merchant guild had acquired jurisdiction or merged Resulta of

.. • X • AT- X' xi- • 1- J the union of

its existence m the corporation, the communa or govermng body, the mer-
the guild hall became the common hall of the city, and the 'port^thtfe
mote,' for that seems to be the proper name for the court of the f^®*™***
guild, became the judicial assembly of the freemen and identical
with the leet ; the title of alderman which had once belonged to
the heads of the several guilds was transferred to the magistrates
of the several wards into which the town was divided, or to the
sworn assistants of the mayor in the cases in which no such

* Nichols, L€dcester8hire, i. 375, 377, 379 sq. At Beverley the governoura
admitted the fi-eemen ; see Scaum, p. 163. At Winchester, the adnuBsion to
the merchant guild constituted freedom; persons not taking up their firee-
dom paid 6«. Sd., half to the bailiffs, half to the chamber ; Woodward,
Hampshire, i. 270 sq.

' As at Huntingdon ; Merewether and Stephens, pp. 171 4, 1186.

» Vol. L p. 418.



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566 Constitutional HUtoty. [chap.

division was made ; the property held hy the merchant guild be-
came town property and was secured by the successive chartera.
T^^CTBft The craft guilds, both before and after the consolidation of
the governing bodies, aimed at privileges and immunities of
their own, and possessed, each within the limits of its own
art, directive and restrictive powers corresponding with those
Restriction claimed by the merchant guilds. Consequently under Seniy 11
guUds. they are found in the condition of illegal associations, certainly
in London, and probably, in other towns. The adulterine guilds,
from which heavy sums were exacted in i i8o, were stigmatised
as adulterine because they had not purchased the right of asso-
ciation, as the older^ l^;al guilds had done ^, and had set them-
selves up against the government of the city which the king
had recognised by his charter. The later development of the
contest must be looked at in connexion with the general view
of municipal development. The most important features -of the
history are still found in London, where the craft guilds, having
passed through the stages in which they purchased their privi-
leges year by year with fines, obtained charters from Edward
Se cSt*^^ m. The guilds thus chartered became better known as com-
gjj^4jj^_ panics, a designation under which they still exist An act of
Pi^i^^- 1364 having compelled all the artisans to choose and adhere to
the company proper to their own craft or mystery, a distinction
between greater and smaller companies was immediately de-
veloped. The more important companies which were twdve
in number, availed themselves of the licence, reserved to them
in the acts against livery, to bestow livery on their members,
and were distinguished as the livery companies. Between these
and the more numerous but less influential and lesser companies
SuSn the *^® ^^^ struggle for privil^;e and equality was renewed. And
ti^^g com. lastly, within the livery companies themselves a distinction was

' * Qma ooDstitutae sunt sine waranto ' ; Madox, Exch. p. 391.

* Brentano (in Smith's Gilds, p. cli) describes the state of these bodies
in the sixteenth centuiy : *The gild members were divided into three
classes, the liveiy to wldch the ridier masters were admitted, the house-
holders to which .the rest of the masters bebnged, and the joameymeo«*
yeomanry, bachelora, or simple freemen. From Uie middle of that oentury
the management of the oompanies was engroaBed by the courts of assistants ;
Herbert, i. 118.



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XXI.] Growth of Corporations. 567

made between the liverymen and the ordinary freemen of the
craft, the former being entitled to share in all the privileges, pro-
prietary and municipal rights, in the fullest degree, and the latter
having a claim only to the simple freedom of the trade. Unfor- The livery-
tunately the details of these two processes are very obscure, and London,
only very wide limits can be fixed as dates between which the
great companies engrossed the municipal power, and the more
powerful men in each constituted themselves into the body of
liverymen, excluding the less wealthy members of the company
as mere commonalty or ordinary freemen.

The third point, referred to above, the growth of the govern- ^JJS^ °'
ing bodies which in the fifteenth and succeeding centuries were ^ different
incorporated by charter, will be cleared up as we proceed :
there is great diversity in the results, and accordingly consider-
able diversities must be supj^osed to h|tve coloured the history
which produced them ; in some towns the new constitution was
simply the confirmation of a system rooted in municipal anti-
quity, in others it was the recognition of the results of a move-
ment towards restriction or towards greater freedom ; in all it
was more or less the establishment, by royal authority, of usages
which had been before established by local authority only, which
had grown up diversely because of the loose language in which
the early charters of liberties were worded. In the following
brief sketch of municipal history it will not be necessary to call
attention to the diversities and multiplicities of legal usages, such
as the courts of law or their customs. These vary widely in dif-
ferent places, and, although in some parts of the earliest consti-
tutional investigations they illustrate the continuity of ancient
legal practice, they lose their interest from the period at which
they become a merely subordinate part of the machinery of civic
independence. The election of magistrates, and the municipal
arrangements by which such elections are determined, are on
the other hand matters of permanent constitutional interest,
not only in themselves and in their social aspect, but in the
light they throw on the political action of the towns. The
modes of electing members of parliament varied directly with
the municipal usages.

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568



Constitutional EUtory*



[chap.



Importanoe
of the muni-
cipal history
of ^ "



London in
the thir-
teenth
centiuy.



Common
councillors.



Strugfflei
with the
crown.



486. London claims the first place in any snch investigationy
as the greatest municipality, as the model on which bj their
charters of liberties the other large towns of the country were
allowed or charged to adjust their usages, and as the most
active, the most political and the most ambitious. London has
also a preeminence in municipal history owing to the strength
of the conflicting elements which so much affected her consti-
tutional progress.

The governing body of London in the thirteenth century was
composed of the mayor, twenty-five aldermen of the wards, and
two sheriff. All these were elective officers; the mayor was
chosen by the aldermen, or by the aldermen and magnates of the
city, and required the approval of the crown ; tde aldermen were
chosen by the citizens or commons of their respective wards ^,
and the election of the sheriffs, which was a point much dis-
puted, was probably transacted by the mayor and aldermen,
with a body of four or six ' probi homines' of each ward. The
sheriffs, like the mayor, were presented to the king for his
approval. The term for which both mayor and sheriffs were
chosen was a year ; but the mayor was generally continued in
office for several years together until 13 19, after which date a
change was annually made '. The sherifi, by a by-law passed
in 1229, were not allowed to hold office for more than two
years together'. In the administration of their wards the
aldermen were assisted by a small number of elected councillors
who are said to make their appearance first in 1285 \

The supremacy of the governing body was constantly endangered
from two sides. On the one hand, the kings, especially Henry
III and Edward I, frequently suspended the city constitution
for some offence or on some pretext by which money might be
exacted ^ ; a custos was then substituted for the mayor, and the

^ A.D. 1248 : 'Homines illius wardae aooepta lioentia eligendi degerunt
. . . Alexandrum le Ferrun . . . qui postea veniens in hostingo . . . adoiissus
est aldennannus '; liber de Antt. Legg. p. 15.

' See Liber de Antt. Legg. p. 33 ; Liber Albas, p. 33.

* 132^ : * Omnes aldermanni et magnates oivitatis per aflsensum imiver>
Borum ciyium *; Liber de Antt. Legg. p. 6.

* Norton, Commentaries on London, p. 87 ; quoting Liber Albus, fo. 116.
^ In 1239 the 1^£» attempted to appoint a sheriff; Lib. de Antt. Legg.



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XXI.] History of London. 569

whole independence of the municipality remained for the time straggles
in abeyance. On the other side the body of the citizens, or a magnAtes



large portion of the less wealthy and more excitable ' commons/ oommons.
b^prudged the authority exercised by the mayor and aldermen,
demanded a share in the election of officers, and something more
than the right to hear and consent to the proceedings of their
rulers in the Guildhall. In 1249, when the mayor and alder-
men met the judges at the Temple for a conference on rights
claimed by the abbot of Westminster, the populace interfered,
declaring that they would not permit them to treat without
the participation of the whole 'Communa^.' In 1257 the king
attempted to form a party among the commons by charging the
mayor and aldermen with unfair assessment of tallage*. In Thomas
1262 Thomas Fitz-Thomas the mayor encouraged the populace tmo&s.
to claim the title of 'Conmiuna civitatis' and to deprive the alder-
men and magnates of their rightful influence ; by these means
he obtained a re-election by the popular vote in 1263, the voices
of the aldermen being excluded : in 1264-5 ^^ obtained a re-
appointment. But his power came to an end after the battle of
Evesham ; he was imprisoned at Windsor and the citizens paid a
fine of £20,000 to regain the royal fietvour which they had lost by
their conduct in the barons' war '. Although at this price they
recovered the right of electing a sheriff, the city still remained
under him as custos and the mayoralty remained in abeyance.
The commons at the election of the new sheriff declared that Disputes
they would have no mayor but Thomas Fitz-Thomas, and the barons' war.
king had to put down a riot. Another change was made the
next year ; the citizens were allowed to elect two bailifb instead
of a custos : the election was dispatched in the guildhall before
all the people *. When the earl of Gloucester seized the city in
1267 the dominant party was again humbled; when he sub-
mitted, they recovered their power'. But the king did not
trust the Londoners again ; and, although they were allowed to

p. 8 : in 1 240 he refused to accept the mayor elect ; ibid. : in 1344 he took
the city into his own hands, and exacted £1000 before he gare it up ; see
also the years 1249, 1354, 1255 ; ibid. pp. 9, 3i, 33 sq.

' lib. de Antt. Legg. p. 17. * Ibid. p. 33.

' Ibid. pp. 39-86. * Ibid. p. 88. * Ibid. pp. 90-93.



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570 Constitutional History. [chap.

elect bailifib, there was no mayor until i2fo, when, at the inter-

cession of Edward, and on condition of an increase in the ferm,

Henry was induced to restore the recognised •constitution of the

Conterts for city *. The communal or popular faction was not however

the office of '^ '^

mayor of crushed. On the feast of S. Simon and S. Jude in 1272 there

was a coAtested election to the mayoralty* The aldermen and
more 'discreet' citizens chose Philip le Taylur, the popolaoe,
* vulgus/ chose the outgoing mayor, Walter Hervey. The alder-
men betook themselves to the king, and explained to him that
the election of mayor and sherifiBsi rightly belonged to them ;
the mob declared that they were the Conmiuna of the city and
that the election was theirs by right. The arguments of the
aldermen are important as showing that their opponents were
not an organised body of freemen, but simply the aggregate of
the populace. They urged that the election of the mayor be-
longed to them; the commons were the members, they were
the heads ; they also exercised all jurisdiction in lawsuits set
on foot within the city; the populace contained many who
were not owners of lands, rents or houses in the city, who
were 'the sons of diverse mothers,' and many of them of
servile origin, who had little or no interest in the welfare of the
city. Ajs the king was on his deathbed his court endeavoured
to mediate; it was proposed that both candidates should be
withdrawn and a custos appointed until a unanimous choice
could be made ; five persons were to be elected by each party,
and they were to choose a mayor. Before the election could be
made the king died, and the earl of Qloucester, who was the
leading man among the lords, seeing that the majority of the
Londoners were determined to force Walter Hervey into office,
prevailed on the royal council to advise the aldermen to submit
They agreed thereupon that he should be mayor for a year.
The next year Henry le Waleys was chosen, apparently by the
aldermen ; he was speedily involved in a quarrel with his pre-
decessor, obtained an order for his arrest, and with the permis-
sion of the council removed him from the office of alderman.
Thus ended, not without much complication with national
^ Lib. de Antt. Legg. p. 124.

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XXI.] Kxitory of London. 571

politics, one phase of the communal quarrel ^. The aldermen,



Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 58 of 68)