“Robert, Earl of Mellent, to Ralph, and all his barons, French and English, of all his land in England, greeting: Know ye, that I have granted to my merchants of Leicester their Guild Merchant, with all customs which they held in the time of King William, of King William his son, and now hold in the time of Henry the king.
“Witness: R., the son of Alcitil.”
The object of these ancient writings was only to record the fact of corporate existence; the popular custom by which the guilds were regulated was taken for granted; but obviously they must have had succession, been liable to suit, able to contract, and, in a word, to do all those acts which were afterward set forth. And such has uniformly been the process by which English jurisprudence has been shaped; a usage grows up that courts recognize, and, by their decisions, establish as the common law; but judicial decisions are inflexible, and, as they become antiquated, they are themselves modified by legislation. Lawyers observed these customary companies for some centuries before they learned what functions were universal; but, with the lapse of time, the patents became more elaborate, until at length a voluminous grant of each particular power was held necessary to create a new corporation.
A merchants’ guild, like the one of Leicester, was an association of the townsmen for their common welfare. Every trader was then called a merchant, and as almost every burgher lived by trade, and was also a landowner, to the extent at least of his dwelling, it followed that the guild practically included all free male inhabitants; the guild hall was used as the town hall, the guild ordinances were the town ordinances, and the corporation became the government of the borough, and as such chose persons to represent it in Parliament, when summoned by the king’s writ to send burgesses to Westminster.
London is a corporation by prescription and not by virtue of any particular charter, and to this day its city hall is called by the ancient name, Guild Hall. But with the growth of wealth and population the original fraternity divided into craft organizations (so long ago, indeed, that no record of its existence remains), and each trade organized a guild, with a hall of its own; and thus it came to pass that the twelve livery companies—the Mercers, the Grocers, the Goldsmiths, the Drapers, the Fishmongers, and the rest—became the government of the capital of England.
All mediæval institutions tended to aristocracy and monopoly, and, accordingly, after the merchant guilds had split into these corporate trade unions, boroughs waxed exclusive, and membership, instead of being an incident of citizenship, grew to confer citizenship itself; thus the franchise, being confined to freemen, and freedom or membership having come to depend on birth, marriage, election, or purchase, the constituencies which returned a majority of the House of Commons grew so petty and corrupt as to threaten the existence of parliamentary government itself, and the abuse at last culminated in the agitation which produced the Reform Bill.
When legal forms had taken shape, the land upon which a town stood was not unusually granted to the mayor and commonalty by metes and bounds, [Footnote: See Charter of Plymouth, granted 1439. History of Plymouth, p. 50. The incorporation was by statute.] to them and their successors forever, upon payment of a rent; and the mayor and common council were empowered to make laws and ordinances for the local government, and to fine, imprison, and sometimes whip and otherwise punish offenders, so as their statutes, fines, pains, and penalties were reasonable and not repugnant to law. [Footnote: History of Tiverton, App. 5.] The foreign trading company was an offshoot of the guild, and was intended to protect commerce. Obviously some such organization must have been necessary, for, if property was insecure within the realm, it was far more exposed without; and, indeed, in the fourteenth century, English merchants domiciled on the Continent could hardly have been safer than Europeans are now who garrison the so-called factories upon the coast of Africa.
At the Conquest, the Hanse merchants had a house in London, which was afterward famous as the Steel Yard. They lived a strange life,—a combination of that of the trader, the soldier, and the monk. Their fortified warehouse, exposed to the attacks of the ferocious mob, was occasionally taken and sacked; and the garrison shut up within was subject to an iron discipline. They were forbidden to marry, no woman passed the gates, nor did they ever sleep a night without the walls; but, always on the watch, they lay in their cells ready to repulse a storm. For many years these Germans seem to have monopolized the carrying trade, for it was not till the thirteenth century that Englishmen appear to have made an effort at competition. However, about 1296 certain London mercers are said to have obtained a grant of privileges from John, Duke of Brabant, and to have established a wool market at Antwerp. [Footnote: Andersen’s History of Commerce.] The recognition of the Flemish government was of course necessary; but they could hardly have maintained themselves without some support at home; for, although their warehouse was abroad, they were English merchants, and they must have relied upon English protection. No very early documents remain; but an elaborate charter, granted by Edward IV. in 1463, proves that the corporation had then had a long legal existence. [Footnote: Hakluyt’s Voyages, i. 230.] The crown thereby confirmed one Obrey, the governor, in his office during pleasure, with the wages theretofore enjoyed; existing laws were approved; the governor and merchants were empowered to elect twelve Justicers, who were to hold courts for all merchants and mariners in those parts; and the company was authorized to regulate the trade and control the traders, provided no laws were passed contrary to the intent of that charter.
Here, as in the Merchant Guild, the inevitable aristocratic revolution took place, and the old democratic brotherhood became a strict monopoly. The oppression was so flagrant that a petition was presented to Parliament in 1497 against the exactions of the Merchant Adventurers, as the association was then called, by which it appeared that interlopers, trading to Holland and Flanders, were fined £40, whereas any subject might have become a freeman in earlier times for an old noble, or about 6s. 8d.; [Footnote: 12 Henry VII. ch. vi.] and the scandal was so great that the fine was fixed at 10 marks, or £6 l3s. 4d., by statute. During the stagnation of the Middle Ages few traces of such commercial enterprises are to be found, but with the sixteenth century Europe awoke to a new life and thrilled with a new energy. Trade shared in the impulse. In 1554 Philip and Mary incorporated the Russia Company in regular modern form; in 1581 the Turkey Company was organized; in 1600 the East India Company received its charter; and, to come directly to what is material, in 1629 Charles I. signed the patent of the Governor and Company of Massachusetts Bay in New England.
Stripped of its verbiage, the provisions are simple. The stockholders, or “freemen,” as they were then called, were to meet once a quarter in a “General Court.” This General Court, or stockholders’ meeting, chose the officers, of which there were twenty, the governor, deputy governor, and eighteen assistants or directors, on the last Wednesday in each Easter Term. The assistants were intrusted with the business management, and were to meet once a month or oftener; while the General Court was empowered to admit freemen, and “to make laws and ordinances for the good and welfare of the said company, and for the government and ordering of the said lands and plantation, and the people inhabiting and to inhabit the same, as to them from time to time shall be thought meet,—so as such laws and ordinances be not contrary or repugnant to the laws and statutes of this our realm of England.” The criminal jurisdiction was limited to the “imposition of lawful fines, mulcts, imprisonment, or other lawful correction, according to the course of other corporations in this our realm of England.”