City of London Livery Companies Commission. Report; Volume 1. Originally published by Eyre and Spottiswoode, London, 1884.
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Observations on the Clothworkers' Company
Observations on the Evidence given by the Witnesses before the Royal Commission appointed to inquire into the City of London Livery Companies, especially so far as the same relates to, or affects, the Clothworkers' Company.
These are stated in the passage from the 2nd Report of the Commissioners under the Municipal Corporations Commission of 1834, which was drawn up by Sir Francis Palgrave (a high authority on such subjects), and which is quoted by Mr. Hare in his evidence before the present Commission. (Answer to Question 26.)
(a.) To protect the consumer or the employer against the incompetency or fraud of the dealer or the artizan (as Mr. Froude, 'History of England,' vol. i., p. 42, speaking of cloth, says, "to ensure that the cloth put up for sale was true cloth of true texture and full weight"), and to secure a maintenance to the workman by preventing his being undersold in the labour market by an unlimited number of competitors.
(c.) To perform the functions of a Benefit Society, (and, it should be added, of a Burial Club), from which the workman, in return for his contributions, might be relieved in sickness, or infirmity, or old age, and have his burial expenses paid.
They had also a Religious element. They had a Patron Saint, who, in the case of the Clothworkers' Company and of their predecessors the Fullers and Shearmen, was the Virgin Mary. They attended religious services, and the funerals of deceased members. They had chaplains who performed obits (or obiits) and masses for the souls of the dead. They held chartered feasts and entertainments on specified days. They also took part in the pageants of the middle ages.
The statement made by Mr. Beal, in his pamphlet "The Relief of the Ratepayers' Burdens," that "guild was originally a name applied to the quarter of the town where men and women practising a particular trade lived," is incorrect. The name (see Herbert on the "Twelve Great Livery Companies," vol. i., pp. 1—3) is derived from the Saxon "Gildan," to pay, denoting an associated body or brotherhood, because every member was "Gildar," i.e., to pay something towards the charge and support of such body.
(a.) That for ensuring to the consumer or employer excellence in the wares by means of searches, and to the workmen protection from unlimited competition, has long fallen into disuse. Mr. J. R. Phillips (answer to Question 1385) puts the year 1688 as the date when what he calls the severance of the Guilds from the trades began, with the avowed object of treating as public property all the estates acquired by the companies previously to that time, those since acquired by them being, as he states, few in number. But there is no ground for assigning that date, and Mr. Froude, in his "History of England," vol. i., p. 50, describes the decay of this organisation for the maintenance of fair dealing as having taken place in the reign of Elizabeth. It is mentioned by Mr. Hare (answer to Question 27) that Queen Elizabeth sent to the Mercers' Company to know why silks were so dear, and marvelled much to learn that only one or two of the Company knew anything about silks at all. And it appears from the books of the Clothworkers' Company that of the five persons named as Master and Wardens in the Charter of Queen Elizabeth, a.d. 1560, one only was a Clothworker by trade. This Company went through the formality of appointing searchers up to the year 1754, when the practice was finally discontinued; but it had in fact been a mere form for upwards of 100 years previously, the legality of the rights of control over trade monopoly having come to be questioned. Indeed, in the case of the Clothworkers' Company (of Ipswich), (Godbolt, tit. 351, p. 254), which was decided soon after the death of Elizabeth, that is to say, in the twelfth year of King James I., such rights were held to be void, having been superseded by Statutes regarding trade passed in the reign of Queen Elizabeth. The cloth manufacture, moreover, had begun to leave the City of London for Norwich and Ipswich, and for the west and the north of England.
(b.) This object viz., that of arbitration, has also for some time fallen into disuse, mainly for the reason that the Company had no means of enforcing their award. But, so recently as the year 1881, the Company were appealed to, by artizans in the Cloth manufacture in Yorkshire, to interfere to obtain from their employers the redress of an alleged grievance in a dispute between them and their employers. The Company, however, declined to do so, considering that they could not usefully intervene.
And (d.) That of providing for the social intercourse of the members (including, in the case of this Company, the poor Freemen and Freewomen who to the number of 200 or thereabouts are entertained in the Livery Hall on every St. Thomas's Eve, the 20th of December); have always been and are fulfilled by the Company.
It has been alleged on the part of the companies that they were Corporations by prescription, having the before-mentioned objects for centuries before they were incorporated by Royal Charter, and that, even if their Charters could be cancelled or avoided, they would retain their character of Corporations by Prescription, to which the legal processes of "Scire Facias" or "Quo Warranto" could not apply.
But there certainly is authority for the proposition that a Corporation by Prescription, may continue as such, notwithstanding that it obtains a Charter from the Crown, in the incorporating part of which, words of creation only (such as "grant," &c.) are used, those words being capable of being taken, not as conveying a fresh grant, but as operating to confirm something previously enjoyed by the grantees. ("Grant on Corporations," pp. 32 and 33, and the cases there cited, including "The King against the Corporation of Stratfordupon-Avon," 14, East's 'Reports,' p. 348.)
(a.) That they contain clauses, such as those giving the right of search, which were illegal in the first instance as being in restraint of trade, and contrary to public policy, and inconsistent with Magna Charta.
But one part of a Charter may be good and the other parts void or voidable. ("Grant on Corporations," pp. 40, 41, and the authorities there referred to, including "Sackville College Case;" T. Raymond's "Report," pp. 177–78; and "The East India Company against Evans and Others," I. Vernon's "Reports," pp. 305–8; and "Lord Mulgrave against Sir John Mounson," Freeman's (Chancery) "Report," p. 17), provided that the void or voidable clauses are independent clauses, and that the King was not deceived in the substance of his grant, which was not the case with regard to these Charters. Indeed, at the date of the later ones, it must have been well known to the Crown that the rights of control over trade had fallen into desuetude or were incapable of being exercised. Therefore, if the clauses conferring those rights were illegal, the incorporation and the other valid clauses would still remain in force.
(b.) That the Companies having ceased to be connected with the trades (Mr. Beal says, "having ceased to trade;" but this expression is incorrect, the Companies never did trade, certainly the Clothworkers' Company as a Corporation, never did), the purposes for which the Charters were granted have failed and the Charters have ended.
But the rights of control over the trades were not the only purposes for which the Charters were granted, and the disuse by the Companies of those rights could not put an end to the Charters. However, in addition to technical legal argument, which it is necessary for the Company in this and other instances to advance in reply to those of the like nature used against them in the evidence before the Commission, the Company rely in answer to these suggestions of the invalidity of the Charters, on the fact (as pointed out by the Earl of Derby in his questions 986–89) that the question has never been tested, though there has been every opportunity of testing it for an indefinite time past.
A volumn containing the Charters of this Company and the grants of lands and tenements made to them, including the Act of Parliament of 4 James I., accompanied the returns of the Company. Their first Charters are, that granted to the Fullers' by Edward IV., in the twentieth year of his reign, a.d. 1480, and that granted to the Shearmen by Henry VII., in the twentythird year of his reign, a.d. 1507–8. These Corporations were united and reincorporated under the name of the Clothworkers' Company by Charter of Henry VIII., in the nineteenth year of his reign, a.d. 1527–8.
The Company's Licenses in Mortmain are contained in their Charters, which empower them and their successors, to hold lands and tenements, notwithstanding the statutes of Mortmain or any other statute or ordinance. Moreover, this and the other companies are exempted from the operation of the statutes of Mortmain as regards their lands and tenements in the City of London, devised to them by citizens resident in the City, and paying "scot and lot," by the custom of London. This custom is stated by Lord Chancellor Cottenham, in the case of "The Attorney-General against The Fishmongers' Company (Preston's Will)," 5 Mylne and Craig's "Report," p. 19, as follows:—"By the recognised custom of the City of London, citizens, though they could not convey lands in Mortmain, were entitled to devise them in Mortmain, and the corporations were entitled to accept the lands so devised, whatever might be their value.
It is contended by Mr. Firth, M.P., in his work "Municipal London," p. 59, and also by the witnesses, Mr. Beal and Mr. Phillips, that in the creation of the companies membership, was restricted to the craftsmen. Even if this had been the case it would soon have ceased to have been so by the operation of patrimonial succession. But it is not the fact as regards the Clothworkers' Company and some other of the companies, e.g. the Haberdashers' and Merchant Taylors'. The Charters of the Clothworkers' Company provide in express terms for the inclusion in the Corporation of persons not belonging to the mystery, that is to say, of "the brothers and sisters of the Freemen of the mystery or art, and others who, of their devotion, shall have wished to belong to the Fraternity or Gild." Mr. Firth, in his work, p. 59, quotes in support of his aforesaid contention the words in the Clothworkers' Charter of 9 Charles I., which declare that "all persons, 'tam indigenæ quam alienigenæ,' who then used or should thereafter use the mystery of Fullers, Shearmen, or Clothworkers, within the City or suburbs, should be one body politic." But he omits to cite the subsequent clause in the same Charter, giving power to increase and augment the commonalty, and to receive, make, and constitute into it "whatsoever persons, as well natives or aliens ('tam indigenas quam alienigenas'), whom they shall be willing to receive into the same." There are, and always have been, Freewomen of this Company. The Livery of the Company are chosen by Ballot from out of those persons who possess the Freedom of the Company by the Court.
The governing body are, the Master, elected annually (generally speaking in rotation according to seniority) from the members of the Court of Assistants whohave not passed the chair (any one who declines to serve, paying a fine), and four Wardens, two of whom are elected every year out of the Livery (generally in rotation according to seniority, excepting any who are disqualified by bankruptcy or insolvency, or some other good cause; the Company considering this mode of election as the most fair and most beneficial in operation, obviating, as it does, canvassing, and the resort to any undue influence), and serving as Junior Wardens the first year, and as senior Wardens the second year (at the end of which they are taken on to the Court), and about thirty-five Assistants. The emoluments of the members of the Court are derived only from their fees for attending the Courts and the Committees. This mode of renumeration is objected to by Mr. Firth, and by some of the witnesses, but it is the one usually adopted by companies and public bodies, and it is preferable to a fixed salary, for the fees are not paid to those who are absent, or do not come in due time, and the members of Court, who are generally men actively engaged in professions or business, could not be expected to give up the best hours of the day without being remunerated (Mr. Gilbert, in answer to Question 1563, says he would not like to do so), and the amount of the fees (between £65 and £80 per annum), is a moderate compensation for the amount of time given and work done.
The Courts are held on the first Wednesday in every month (except September). They last for three hours at least, often longer. The ordinary course of transacting business is given for the information of the Commission. The Master and Wardens meet at 2 o'clock for the purpose of binding apprentices and admitting Freemen. At half-past 2 the general business of the Court begins.
1. The Acts and Orders of the last Court are read by the Clerk, and having been put from the chair and adopted, are signed by the Master. 2. The Court then considers various matters, not set out on the paper of Agenda, which are brought to its notice by the Clerk and the Master. 3. Next it considers Petitions for Casual Relief, and Funeral Allowances, to poor members and their widows. 4. Then it receives and discusses the Reports of the Standing Committees, "The Trusts," "The Estate," "Finance," and the Minutes of the Auditors. 5. Next come any special motions of which notice has been given. 6. Then applications for aid on behalf of various charitable and other institutions and bodies (any grant exceeding Twenty Guineas being made the subject of a notice of motion for a subsequent Court). 7. Next the Seal of the Company is affixed to any deeds or documents requiring it. 8. Then elections are made to any vacant posts, scholarships (boys and girls), exhibitions to the Universities and Colleges (including those for women)—the reports of the examiners being read and considered—almhouses, pensions, &c. &c. 9. General business.
The Court is composed of several clergymen, one or two barristers and solicitors, physicians, professors, architects, and men who are, or have been, engaged in business (including several who are, and whose families have for generations been, engaged in businesses, such as "calendarers" and "pressers," being subsidiary processes of the clothworking trade, and whose experience is very valuable), estate agents (whose practical knowledge is also very useful), and several gentlemen interested in science and art and antiquarian pursuits. By men so varying in professions and attainments, the different questions which arise at the courts are discussed with great ability and moderation. Decisions are taken by show of hands (except the elections, which are always by ballot). The members of the Court are mostly connected with the Company by patrimony. Some few were originally admitted by "Redemption," or "Apprenticeship." There is no political or party influence or bias. The constitution of the Court is regulated by the bye-laws last ratified by the judges in 1639.
The Company notices the charges brought, or suggested, against members of the Courts of the Companies by Mr. Firth, M.P., in his said work, and by some of the witnesses, that they vote themselves pensions, and make use of the charities or patronage for their own private benefit, and obtain leases of the estates at a low rental and relet them at a profit; only for the purpose of giving an emphatic denial to them. No Liveryman, or Member of the Court, can receive any pension or alms, without resigning his position and returning to that of a simple Freeman. With reference to the case of a former clerk of the Company mentioned by Mr. Phillips (answers to Questions 1283—1316), the account given by him of the irregularities of which that person was guilty is correct (indeed it is, as stated by him, taken from the book of Mr. Alsager, published in the year 1838 for the use of the Court), but from those irregularities, and the exposure of them by Mr. Alsager, who became Master in 1836–37, great and lasting benefit has resulted to the Company, by the thorough investigation of their affairs and accounts, both as regards their Corporate and Trust property, which were then placed on a proper footing, the permanency of which was secured by the institution of Standing Committees. That clerk (Mr. Phillips is incorrect in saying that he was dismissed; he died in January, 1837); was able to take advantage of the influence and knowledge possessed by him in consequence of the permanency of his office, which he had held for many years, while the Master and Wardens, who were then the only executive body, only held office for one year and two years respectively, and were not able to acquire during those periods a sufficient supervisory knowledge of the Company's affairs. This was remedied by the creation of Standing Committees, consisting of the most experienced Members of the Court (the chief of them being "The Trusts and General Superintendence Committee" and "The Estate Committee"), one half of the members of which, including the Chairman, are more or less permanent, the other half being elected annually (the Master for the time being is ex officio a member of all the committees, but does not act as chairman). By means of these committees, including especially the Chairmen and Master, and of the auditors, a constant and careful supervision is exercised over the clerk and the other officials, and over the affairs and accounts of the Company, which are now on the most excellent basis. The Master and Chairman of the Committees attend at the Hall generally twice a week at least, and a recurrence of any such improprieties is now rendered impossible.
That it is not public property (so far as by that is meant property to or in which the general public or any section of the public outside of the members of the corporate body has any right or interest), and
On the cases of "The Attorney-General against the Corporation of Carmarthen," Cooper, p. 30, and "The Mayor of Colchester v. Lowten," I, Vesey and Beames, p. 226, mentioned by Mr. Longley in answer to Question 350, in which cases it was held that every civil corporation (and not merely a municipal corporation) had full power at law to alienate its property, and the Court of Chancery had no jurisdiction to restrain such alienation.
On the case of "Dale v. Brown," referred to by Sir R. Cross in Question 976, and reported (though more shortly) in the "Law Reports of Chancery Division," p. 78, where it was decided by the Master of the Rolls, Sir George Jessell, that the existing members of the Company, Society, or Fellowship of the Fullers and Dyers of Newcastle were entitled to sell their property and divide the proceeds among them, to the exclusion of any inchoate or future right or expectation of membership.
On the statement of the present Lord Chancellor, in answer to Question 1684, that in point of law the companies are, in his opinion, absolutely entitled to their property, and under no trust whatever; and the other subsequent statements by his lordship to the like effect.
On that of Mr. Hare, who, in answer to the Question (244) whether "he would consider when a company was empowered to purchase land contrary to the Statutes of Mortmain, and did so purchase it, being at that time any active trade organization, that that ought not to be available for the trade?" says, "No; it has been taken by the company and held by the company during a long period, by which a title would be gained by prescription;" and the reply of Mr. Longley to Question 330, on the admission by the same witnesses that the corporate property is not subject to any charitable use or trust.
On the precedents, in addition to that of the beforementioned case of the Fullers and Dyers of Newcastle, established by the division by the Doctors of Doctors' Commons and the Serjeants-at-Law of their property amongst themselves; the case of Serjeant's Inn Mr. Phillips indeed attempted to distinguish from that of the Livery Companies, on the ground that they were not incorporated; but Lord Selborne, in his speech in the House of Lords, quoted by Mr. Phillips in answer to Question 1284, refused to accept incorporation as any test as to whether a body is public or private, and reiterates this in his reply to Lord Coleridge's Question (1686), while in his reply to Question 1680 he repudiates the inference drawn by Mr. Phillips from his said speech, that his lordship thought the Inns of Court (which he did consider a public body) and the companies are in pari conditione, saying that he does not think so at all.
Moreover and especially, the Company rely on the fact that they have for centuries leased, sold, and otherwise dealt with their corporate property without any interference. An instance of a sale occurs in their records as early as the year 1550, at which time they sold land at Greenwich belonging to them, as well as property in Queenhithe.
They have also frequently made sales under the compulsory powers of acts of Parliament with the cognizance of the Court of Chancery, and their title has been laid before the most eminent conveyancers, including the Conveyancing Counsel of the Court, and approved by them, and the proceeds of such sales have been handed over to the Company without obligation of reinvestment.
Their corporate property in England was acquired by devises, made in very many instances after they had ceased to exercise the rights of control over trade, and in almost every case by members of the Company, who were well acquainted with the mode in which they dealt with their property, and by purchases made out of their own internal revenue and income, and as regards the large portion of their property known as the "Obit" or "Chauntry" lands, comprised in the Letters Patent of 4th Edward VI, a.d. 1550 (including their Hall) and those comprised in the Letters Patent of 17th James I., by purchase from the Crown of the charges existing thereon, and to these "Obit" or "Chauntry" lands they have a Parliamentary title under the Act of Parliament of 4 James I, a.d. 1606–7.
"This daie also Sr Henry Monntague, Recorder of the Cittie of London came & declared to this Company that there is a Byll p[re]ferred to the Parlyamenthowse touchinge th'assurance of the landes & tenements belonginge to the severall Companyes of this Cittie, certen rents yssuinge out of wch said landes and tenements lymited to supersticious uses were purchased by the said sevrall Companyes of Kynge Edward the sixte in the fourthe yeare of his raigne. The iudges & greatest Lawyers of this land then beinge of opinion that onely the rents ymployed or lymitted to supsticious uses were the Kynges. But not the landes whereout those rents were yssuinge yet in these tymes the very landes have bynne & yet are in question. And certen patentees in the tyme of the late Queene have gonne about, and yet doe, to entitle the said late Queene and the Kynges Matie that now is to the said lands and tenements (onely for theyr private gayne) as landes concealed from the Crowne, not caringe to bereave a nomber of poore people in this Citty & elsewhere in the Kyngdome of theyr beste and cheifest reliefe & mayntenance & by means of those patentecs have drawen from the said sevrall Companyes many greate somes of money for composicon wth the said patentees for the said landes. The rents whereof the Companyes had formerly purchased of the said late Kynge Edward the sixte. And so the saide Companyes havinge payed fyrst to the Kynge & after compounded wth the said Patentees for the saide rents and landes sevrally for all the money they have departed with have at this pnte (of assurance) neither rents nor landes. And thereuppon the said Sr Henry Monntague shewed vnto the Company how beneficiall the passinge of that byll in Parliament might be in generall to the whole Cittie & in p[ar]ticular to every private Company. And did advise that soe good meanes of peace and quiet for the establishinge of theyr landes to them and theyr successors in succeedinge tymes was not to be reiected but to be embraced. And wth all desired to know the purpose & determinacon of this Company whether they wolde ioyne wth the reste of the Companyes & contribute to the chardge of passinge the said byll or desiste and stand vppon theyr owne defence. Wherevnto it was answered that this Company althoughe they knew theyr landes to be as cleare and free from question as any other Company in London yet in respecte of the generall good wch (as is declared) by possibilitie may come to the whole Cittie and to the Companyes in pticuler they will not leave theyr bretheren but ioyne wth them in psequucon of the said Byll & in contribucon to the chardges thereof after a reasonable rate accordinge to the proporcon of the dannger they stand in case of concealement or purchase of rents lymited to supsticious vses."
Lord Chancellor Cottenham, speaking of the Letters Patent of 4th Edward VI and the Act of 4th James I, says in the case of the "Attorney-General v. the Fishmongers' Company" (Kneseworth's Will) 5 Mylne and Craig's 'Report,' p. 16, "The result is that the Company, by means of the Letters Patent and the Act, obtained all the title which the Act 1 Edward VI" (for vesting in the Crown lands, &c., held for superstitious uses) "would have given to the Crown," and again, in the Attorney-General v. the same Company" (Preston's Will) 5, Mylne and Craig, p. 24, "It was immaterial whether the Crown actually seised the land itself or only the rents, the Letters Patent of 4 Edward VI, and the Act 4 James I, having had the effect of giving to the Company all that the Act of I Edward VI, gave to the King," and (at p. 18) "To dispose of rights or property upon any evidence, however apparently clear, against a title and course of dealing of 400 years, would be full of danger, and no judge, not destitute of that degree of prudence and discretion which is essential to the administration of all system and law, but particularly to that of equity, would feel justified in doing so, if any reasonable suggestion could be made reconciling the history of transactions long since past away with the enjoyment of the property;" and he marked his sense of the impropriety of the institution of the information in that case by ordering the relators to pay the costs. In connection with this subject reference may be made to the case of "Pele's Will," in the year 1602, in the King's Bench, Duke 95, 4 Coke 113, "Duke's Charitable Uses," p. 469, in which the Crown claimed certain houses in London, devised by one Peel, alias Pele, to the Clothworkers' Company, to the intent that they for ever should pay to such priest as should pray for his soul in the Parish Church of Chilham, £9 6s. 8d. for his salary, adjudged that "the King will not have the houses, for they were not given to find a priest but to pay a priest a certain sum."
The Act of 2 William and Mary, referred to by Mr. Beal (answers to Questions 830–31), restored and confirmed to this, and the other companies, all the lands, &c., "which they lawfully had, or had lawful right, title, or interest of, in or to," at the time of the judgment in Quo Warranto in the 35th year of King Charles II. Mr. Beal lays stress on the word "lawfully" (which he erroneously states to be placed within inverted commas in the Act, but this is not so in the King's printers' copies of the Statute), his suggestion being that, as the companies had no lawful title to their estates at the time of the Quo Warranto, the Act gave them none. But for the reasons before stated, the Company had undoubtedly a lawful title to their estates at that time, and the Act gave a further Parliamentary sanction to such title.
It is necessary to mention one particular ground on which the allegation by the witnesses that the corporate property is "public" or municipal is attempted to be supported, viz. that the Companies form an integral part of the Corporation of London, and are in fact themselves municipal corporations, because—
(a.) Since 1835 it is not true that no one can be free of the City who is not free of one of the Companies. It is true that the freedom of the Companies carries with it an inchoate right to the freedom of the City, but it is not obligatory on freemen of the Companies to take out the freedom of the City. By Act of Common Council, passed the 9th of March, 1836, it was enacted that the apprentices of such of the freemen of the City as are not free of any society, guild, fraternity, or company of the City, shall, being bound before the Chamberlain of the City, according to the forms of the indenture of apprenticeship for apprentices of the City and duly enrolled, according to the custom of the City, at the expiration of the apprenticeship, be admitted to the freedom of the City.
(b.) It is true that the Liverymen are entitled to vote for the Lord Mayor, the Sheriffs of London and Middlesex, the Chamberlain, Aleconners, the Bridgemasters, and the Auditors of the Bridge House accounts. (Under 11 George 1st, c. 18, § 1.) But they do not elect the Aldermen, the Common Councilmen, or the Town Clerk and other Municipal Officers (being precisely the officers whom, if they had formed part of the municipality, they would have been entitled to elect). They are also entitled to vote for Members of Parliament for the City, but the franchise is restricted to such of them as are free of the City, and have been so for one year, and reside within 25 miles of it, and have paid their Livery fines, and have not received back such fines in part or all, or had any allowance in respect thereof, or within two years before have requested to be, and have been, discharged from paying taxes, or within that time received alms (Pulling's "Laws of London," p. 83 et seq.). This franchise is properly referable to the property qualification possessed by the Liverymen by their being interested in property within the City (which is a county of itself) in their own corporate right, and is analogous to the 40s. freehold franchise in counties. For the City of London is a county of itself, and therefore has its Sheriffs, its Lieutenants, its County Court or hustings, and other institutions similar to those in other counties (Pulling, p. 16 a). The Lord Mayor derives the office of Lieutenant or Viceroy from the Crown, and he has all the powers of a Lord Lieutenant within his county (Pulling, p. 19). The officers for whose election the Liverymen vote are likewise county officers, just as the freeholders of a county still elect the "Coroner." Some of the companies have no Livery.
(c.) It may be true that the Court of Aldermen, as Magistrates, did claim to exercise some sort of irregular control over the Companies. For instance, by an order of the Court of Aldermen, dated the 27th July, 1697, it was directed that "no person should for the future be called to take upon himself the livery of any of the twelve higher companies, who was not possessed of an estate of £1000, or of those of the inferior companies unless he was possessed of an estate of £500." But, in the case of the "Vintners' Company versus Pafrey," I Burr, 235, this order was pleaded and was demurred to, and was afterwards given up on the ground that it was not known what authority the Lord Mayor and Aldermen had to make the order. It may be true likewise that when in the times of irregular taxation and exaction of money by the Crown (e.g. "ship money") the Sovereign made a requisition on the City for money, the Lord Mayor sent a precept to the Companies to furnish their quota. But the Crown often made a requisition, not through the Corporation, but directly, on particular Companies, to furnish money. Herbert mentions many instances of this having been done by Queen Elizabeth and other sovereigns.
But it is admitted by Mr. Beal and Mr. Phillips, there is no known instance of interference on the part of the Court of Aldermen with the property of the Companies during the last 200 years. Mr. Beal, indeed, was by Question 824 asked by Mr. Firth, M.P., "Have you read the decision in the case of the refractory Companies in 1775, when between the Corporation and the Goldsmiths' Company the question was contested?" and replied "Yes." He was then asked, "What was the effect of that decision?" to which he answered, "The Companies were found to be in the wrong, and that they were an integral part of the Corporation, and it is fully set out in your own book, ' Municipal London.'" This is a serious misstatement of the fact. The passage referred to is in "Municipal London," p. 43, where it is stated by Mr. Firth that although the Common Hall is now only called together for election purposes, there appears but little doubt but that it might be convened for other purposes, and in the note (*) he adds:—"This would seem to have been finally settled in the case of the trial of the refractory Companies in 1773, when the Warden of the Goldsmiths' Company was successfully prosecuted in the Mayor's Court for inattention to a summons to Common Hall on other than election business" (vide report of this case "Lawyer's Magazine," July, 1773). It is true that such a decision was obtained in the Mayor's Court on the 14th July, 1773, in proceedings by the Common Sergeant of the City of London, plaintiff, and Samuel Plumbe, Esq., Prime Warden or Master of the Company of Goldsmiths, defendant (it is also reported in the "Annual Register," vol. 16, p. 188– 191), but Mr. Beal and Mr. Firth ought to have known that this decision was not "final," but was reversed on appeal in the year 1775. This appears in Herbert's well-known book on the twelve great Companies (p. 55, note), where he says:—"Ever since Alderman Plumber's [Plumbe's] case in 1775, who was Master of the Goldsmiths' Company, and refused to attend a Common Hall on the precept of the Lord Mayor (Beckford) to present to the Crown a petition for redress of grievances (and which refusal was sanctioned by the Court of King's Bench), several of them have uniformly declined to attend Common Halls unless for election purposes." The Lord Chief Justice de Grey is reported as having stated in his judgment on the appeal. "Thus far we know that the constitution of the City of London does not contain these Companies." In fact, the constitution of the City consists of three distinct branches, viz. the Lord Mayor, the Court of Aldermen, and the Court of Common Council, which have been compared to the three branches of the British Constitution ("Pulling's Laws of London," p. 16, a), and in the Chamberlain of London's case, Leonard, parts 3 and 4, p. 264, it was laid down by Fleetwood (Justice) that "The custom of the City is that the Mayor and Aldermen, and four persons chosen out of each Ward by the Commonalty, may make ordinances which they call Acts of Common Council, and they shall bind every citizen and freeman," and that the Companies do not form part of the constitution of the City, though they are no doubt intimately connected with it, appears from the notable fact mentioned in "Hume's History of England" (vol. viii, p. 308), that the Convention summoned after the final flight of James II, was composed of all the members who had sat in the House of Commons during any Parliament of Charles II, and to them were added the Mayor, Aldermen, and fifty of the Common Council, which was regarded as the most proper representative of the people that could be summoned.
As is mentioned by Mr. Beal (answers to Questions 701–4), at the time of the passing of the Municipal Corporations Act, 1835, the Companies were unanimously advised by high legal authorities (Lord Abinger (then Sir James Scarlett), Sir William (then Mr. W. W.) Follett, and Mr. W. R. Rennall) that they were not municipal corporations, and it is difficult to understand how they could be so, as they are not a city or a borough.
It is right particularly to refer to the argument put forward by Lord Coleridge (in Questions 350 and the following ones) that the Charters of themselves constitute a trust. His Lordship asks Mr. Longley (Question 350) whether it has ever been decided that the Charters constitute no trust. Mr. Longley refers to the "AttorneyGeneral v. The Corporation of Carmarthen," and the "Mayor of Colchester v. Lowten." His Lordship says (No. 351): "That does not quite answer my question; those are municipal corporations. I am supposing the case of a corporation created by Charter for a particular purpose not invested with municipal authority or a municipal corporation, but a corporation with a special object, has it ever been decided that the Charter so creating them and pointing out to them that object, creates no trust ?" Mr. Longley replies that he is not aware of any authority on the point. It is submitted the more proper form of question would have been "Has it ever been decided that the Charters constitute a Trust ?" to which the answer must be in the negative, the absence of any such decision affording the strongest inference against the existence of any such trust. But taking the question as Lord Coleridge put it, it is answered by the present Lord Chancellor, Lord Selborne, who, in his before-mentioned reply to Question 1684, states that they, the Companies, are, in his opinion, absolutely entitled to their property, and under no trust whatever, and in his answer to Question 1699, speaking with regard to the Charters of the Mercers' Company, says that any general trust upon those Charters for charitable purposes he is quite satisfied does not exist, and to Question 1700, with regard to the particular Charter of the Mercers' Company, 17 Richard II, the form of which has generally been supposed to be most open to the construction of creating a trust, says that that was not an incorporation for charitable purposes.
This Company desire to refer to these authoritative statements of the Lord Chancellor which are at least equally applicable to their Charters, not one of which contains any expression capable of creating such a trust.
Mr. Phillips, in answer to Question 1386, says that he does not know that the question has been raised before the Courts whether the corporate property of the Guilds is trust property or not. However, as regards the Clothworkers' Company, the question was recently raised before Mr. Justice Fry by the Metropolitan Board of Works, who opposed the application of the Company for payment out of Court to them of money paid in respect of part of their corporate property at Islington, taken by the Board under their compulsory powers, on the ground that it was trust property. That opposition was over-ruled by his Lordship, who ordered the money to be paid to the Company as being absolutely entitled. But while claiming to be absolutely entitled at law to their corporate property, and even to have the right, with the assent of the existing members, to divide it, the Company admit the moral responsibility resting on them in common with all other landowners in respect of it, and are willing to recognise a special responsibility similar to that rightly imputed to the great feudally descended landowners, especially those taking their root of title from Church lands.
No charge is made against the Trusts for administration, office, or estate expenses, which are paid out of the corporate income. And as part of their provision for technical education they have completely finished, at a cost of £15,000 and an annual subsidy of £1250 and upwards, their own Textile and Dyeing Department of the Yorkshire College, at Leeds (the only portion yet built), where the actual processes of weaving, both by hand and by power loom, and dyeing and other processes connected with the cloth manufactory are taught, not only scientifically by lectures, but by practical manual instruction and work, and they have lately given £500 towards the establishment of a scholarship in commemoration of the late President of the College, Lord Frederick Cavendish, who was a member of the Company.
They have given £3,000 to the Building fund, and £300 per annum to the maintenance fund, of the Technical School at Bradford, which was opened by the Prince and Princess of Wales last year. They have made large subscriptions for the establishment and maintenance of similar schools at Huddersfield and Keighley. They have founded lectures in connection with technical education at Bristol, Stroud, and the seats of the Cloth industry in the west, and also at Glasgow; and they subscribe a yearly sum for the working artizans in the cloth trade at Batley, in Yorkshire, on condition of an adequate local subscription, and they are now going to submit proposals to the Dewsbury Chamber of Commerce for extending and improving the facilities for Technical Instruction in that town.
They also, as is mentioned by Lord Selborne (answer to Question 1682), in the year 1873, took part in the initiation of the City and Guilds Technical Institute, to which they make large subscriptions; they also have encouraged excellence of workmanship in cloth manufacture and dyeing, by giving medals in connection with the recent Exhibitions at the Crystal Palace and Bradford.
As regards general education, they have established a scheme for making grants in aid of the education of poor members, whether freemen or liverymen, mainly based on competitive examination, subject to the attainment of a high standard, and have established Exhibitions at the North London Collegiate and Camden Schools for Girls, to which a wing, called "Clothworkers' Hall," has been added, the Company paying more than half the expense (£3100) out of their corporate income, the rest from funds applied under Sec. 30 of the Endowed Schools Act, 1869; cf. also P. Christian's (Isle of Man) School.
They have also given large donations and yearly subscriptions to Girton College, Newnham Hall, and Somerville Hall, Oxford, for the higher education of women, where there are open Exhibitions of considerable value.
The Company wish specially to refer to the Thwaytes' Bequest, which is frequently mentioned by the witnesses. Mr. Thwaytes, by his will, dated 24th of March, 1831, left £20,000 to the Company to provide pensions of £10 for the blind, which sum (after deducting Legacy Duty) is now invested in the sum of £19,591 16s. 9d. stock. standing in the name of the Official Trustee of Charities, producing the income of £587 15s., whereas the Company maintain 100 pensioners at £10 per annum (in the whole £1000), charging the deficiency to their corporate income.
The Company hold one of their Livery dinners in commemoration of Mr. Thwaytes, and the balance of the fund is applied for the general purposes of the Company, including the supplemental pensions to the blind above mentioned. The remains of this and the other dinners are distributed to the poor alms-people.
In many instances the Trust Charity property consisted of rent-charges issuing out of the corporate estate of the Company. These the Company, in the case of Lute's Charity and a great many other charities specified in the Table of charities set out in the Company's returns, have redeemed, with the sanction and under the orders of the Charity Commissioners, made in pursuance of sections 23 and 25 of the Charitable Trusts Act, 1853, by which the Commissioners are empowered conclusively to sanction compromises of claims on behalf of charity and Redemption of Rent charges by the payment of sums of stock into the name of the Official trustee of charitable Funds.
This explains the discrepancy between former returns and reports and the present returns of the Company, the amount of the charitable trust personal estate of the Company being increased, and that of the real estate being diminished by such redemptions. It is suggested by Mr. Beal that it was very well to redeem the rent-charges, but that it did not follow that the surplus rents of the properties on which they were charged do not belong to the Charities. It is a sufficient answer to this that the Charity Commissioners, who necessarily had the titles to those properties laid before them, would not have sanctioned the redemption if they had considered that the whole of the property belonged to the Charity, but would have applied to the Attorney-General to take proceedings to enforce the right of the Charity. The question as to whether under devises or gifts a specific or definite portion only of the rents of property is given to charity, and the surplus belongs to the Company, so that the Company and not the Charity is entitled to the benefit of the increase in value of the property, or whether the whole of the rents, or of the surplus of them, after answering charges, are devoted to charity, is one depending on the construction of the particular instrument, and has given rise to much litigation. But out of 100 cases about 80 (see Question 919) have been decided in favour of the Companies, and only about 20 in favour of the Attorney-General. Many of these cases are not reported in the Law Reports, but it is believed that the Charity Commissioners have a record of them.
The cases in which the Attorney-General succeeded include those referred to by Mr. Beal of The AttorneyGeneral v. The Wax Chandlers' Company, "Law Reports and Equity," 452, 5 Chancery, 503, 6 House of Lords Cases, 1 (which could not have been so clear a case as Mr. Beal represents, since Lord Romilly and Lord Hatherley both decided in favour of the Charity; and Lord Hatherley again refers to it as presenting features of difficulty in Kendal's case), and the case of the Merchant Taylors' Company v. The Attorney-General, 6 Chancery, 512 (Kendal's case), and the AttorneyGeneral v. The Drapers' Company, 4 Beavan, 17.
Many of the Clothworkers' Charitable Trusts are administered under schemes of the Court of Chancery, the Endowed Schools Act, 1869, and of the Charity Commissioners obtained at the instance of the Company, for example, (amongst others), Burnell's and other benefactions, Hitchin's Charity, Hobby's Charity, Lute and Midlemore's Charity, and all the funds constituting the Company's Trust Personal Estate (which is particularised in the Company's returns) are placed in the name of the Official Trustee of Charities. These facts show that the reluctance imputed by Mr. Hare and Mr. Longley to the companies to resorting to the Charity Commissioners does not exist on the part of the Clothworkers' Company; on the contrary, they have been anxious to avail themselves as largely as possible of the assistance of the Commissioners. Lambe's Islington Charity is administered under a private Act of Parliament (Lambe's Chapel and Estate Act), passed with the co-operation of the Charity Commissioners. As before mentioned the Company defray out of their corporate income the expenses of the administration of the Charitable Trusts, and they do not even accept the 5 per cent. for rent collection as receivers allowed by the Court of Chancery and the Charity Commissioners, and they also largely supplement the charitable gifts out of their corporate income.
The Company desire specially to mention the case of Middlemore's Charity, as that is referred to by Mr. Lucraft in his evidence. Samuel Middlemore by his will dated 24th October, 1628, bequeathed the sum of £800 to the Company upon trust to purchase lands to the yearly value of £40 which was to be applied in clothing for the poor. The Company endeavoured to procure such a purchase, but did not succeed in doing so in consequence of the difficulty of finding land to produce such an income, and of the further difficulty interposed under the Statutes of Mortmain, there being at that time mesne lords whose rights could not be defeated by the Crown's Licence to hold land in Mortmain. They therefore retained the money, paying out of their corporate income the yearly sum of £40 being the interest on it at 5 per cent. which they gradually increased to £70 and £80. By the decree of the Court of Chancery made in a suit commenced in 1833, it was ordered that this Charity and that of John Middlemore (the son of Samuel) who bequeathed £100 for similar purposes, should constitute thereafter a charge of £45 per annum upon the Company. Recently, under order of the Charity Commissioners dated the 16th November, 1877, the Company transferred the sum of £1500 Consols into the name of the Official Trustee of Charities in satisfaction of this charge of £45. This stock has recently been sold out and reinvested in the purchase of Ground Rents at West Hackney amounting to £62 per annum (with large increase in Reversion). These charities, together with Lute's Charity, are administered under a scheme dated January, 1878, framed by the said Commissioners, in co-operation with the Company.
The Company reserve and claim the benefit of the protest contained in Part V. of their Returns. But, irrespective of that protest, they would not consider it to be their duty to offer suggestions on this head. They would refuse to enter into a discussion of the schemes (which, as suggested by Lord Sherbrooke, are of doubtful public utility) for the appropriation of the property of the Companies propounded by Messrs. Hare, Beal, and Phillips.
They would decline to anticipate that the Commissioners would recommend to the Legislature, or that the Legislature would sanction a measure for depriving the Companies of their property, as proposed by the two latter gentlemen. Such a measure would, in their view, be an act of confiscation which would shake the rights of property of every description, certainly the rights of the owners of property derived under grants of Church property, or of the possessions of the dissolved monasteries, or would they contemplate the possibility of any measure for taking away from the Companies the control over their estates.
But any suggestions made by the Commissioners themselves would meet with the respectful consideration of the Court of this Company. They, however, point out that the purposes to which the corporate income is now applied, general education (lower and higher), technical education, support of hospitals, dispensaries, and other charitable and benevolent and scientific institutions, are the very objects the adoption of which is advocated by the more moderate of the witnesses. The Company would not think that it would be for the public benefit that they should be subjected by the Legislature to any hard or fast rules of administration.
One, which regards their Corporate property, that it, in common with all other property held in Mortmain in the Kingdom, should be subjected to succession duty at intervals of thirty years or thereabouts, corresponding to a generation or an annual tax in substitution thereof.
The other, which regards their Charitable Trust Estate, that increased power should be given over charities to the Charity Commissioners on the lines laid down by Mr. Longley in the course of his evidence, subject to minor differences.
Clothworkers' Company.—Further observations and suggestions.
The Clothworkers' Company has never spent other than a trifling proportion of its Revenues on any trade purposes, even in the time when the trade organisation was in a more or less vigorous activity. And little or nothing was ever left or given for purposes connected with trade otherwise than as express charitable Trusts, i.e. Loans and Apprentice Fees. Moreover, such expenses out of the Corporate Funds as may be said to have been connected with the trade were mainly petty disbursements on account of searches for bad workmanship, including often the cost of a dinner at a tavern or the Hall after the day's inspection. The decay of the Companies' connection with their Trades is well explained and illustrated by the well known passage from Froude's " History of England," vol. i, pp. 50–62—previously referred to.
Any scheme for resuming or constituting a direct connection with trades is impracticable, as it would result in favouring some trades to the exclusion of others, and especially must leave out of its scope the great Coal, and Iron, and Textile Manufacturing Industries of the country. Such a scheme would also be quite irreconcilable with the present industrial organisation of the country, but in expending a considerable and increasing proportion of its income in Technical Instruction as connected with "Clothworking" and the Textile Industries, and also (through the medium of the City and Guilds of London Institute for the Advancement of Technical Education) with the commercial and manufacturing interests of the metropolis and the country generally, the Clothworkers' Company of the present day conceives that it is acting in a spirit cy-près to that of its ancestors, who were more closely connected with the Trade from which the Company took its designation.
A great deal of Plate has been given to the Company by Members, but in 1643 much was sold, as has been stated in the Returns, and vide Court, 7th September, 1643.—"This day also this "Court takinge into their sad and serious considera&ctilde;ons the many greate pressinge and vgent occasions wch they have for money as well for the paymt of their debts as otherwise. And consideringe the danger this Citty is in by reason of the greate distra&ctilde;ons and civill warrs of this Kingdome Have thought fitt and so ordered that ye Stock of Plate wch this Company hath shall be forthwth sold at the best rate that will be given for ye same And to this end it is ordered, and Thos Austin Esquior and Mr. Ralph Hough are hereby requested wth the prsent Wardens or any two of them whereof Mr. Warden Hutchins to be one, to take the said plate upon accompt by Indenture from Mr. Philpott the late Quarter Warden in whose possession the said Plate is and to expose the same at the best rate (except only such pticuler p[ar]cells thereof as in their discretions shall seeme meete to be reserved for the necessary use of this Company) and that before the same be sold they cause a p[ar]ticuler to be made in wrytinge p[ar]ticulerly of all the said p[ar]cells of Plate so to be sold, wth the fashion the weight and the severall Donors names To the end that the same may be repayred and made good in statu quo when God shall enable this Company so to doe. The wch this Court doth commend to posterity as an Act which they earnestly desire may be don And whereas this Company vpon their Com[m]on Seale oweth to the said Mr. Hough £300 more wth interest And it is further ordered and agreed that Mr. Robert Hutchins the p[rese]nte Quarter Warden shall receave the moneys for wch the said Plate shall be sold and shall thereout pay vnto the said Mr. Austen and Mr. Hough their said severall debts of Three hundred Pounds a peece wth such interest money as shall appeare to be due to them for the same and thereupon to take up the sevrall obliga&ctilde;ons given vnto them by this Company vnder their Com[m]on Seale for ye payment thereof And the remaynder of the said money together with remaynder of the Plate which shall not be sold to keepe and deteyne in his hands for the use of this Company or otherwise to be accomptable for ye same.
"Court, 11th September, 1643.—This day also this Court was informed by Mr. Hough the prsent Mr. and by Thomas Austen Esquior that in pursuance of an Order of the 7th of this moneth. They wth the assce of Wardens of this Company had made sale of 2068 oz. Plate p[ar]cell of the plate belonginge to this Company vizt 1159 oz. of guilt at 5s. 2d. p[ro] oz. wch came to £299 8. 2d. and 242 oz. pcell guilt at 4s. 11d. wch came to £59 9. 8. and 667 oz. of white @ 4s. 10d. wch came to £161 3. 10. In all £520 01s. 08d. And that they have reserved unsold for the vse of this Company 1239 oz. ¼ of the said plate which sale so by them made was very well approved of allowed and confirmed."
The Court lately (1881) passed an Order in pursuance whereof a list of the plate presented to the Company to 1643 was compiled from various sources, and it will become a question whether it should be replaced in accordance with the recited Orders of Court.
A slight modification of the Charitable Trusts Bill of 1881, as accepted by the House of Lords, would go far to give the powers reasonably required for the strengthening of the Charity Commission, so as to bring about the gradual adaptation (subject to necessary safeguards and rights of appeal on the part of trustees) of obsolete and more or less worn out and useless charities to the requirements of modern life and civilisation, e.g. such educational charities as apprentice fees might often be converted into scholarships or bursaries from public elementary schools for girls and boys of exceptional promise, whereby their education might be continued in higher schools of successive grades, ending in the Polytechnic or Central Technical Institute. Moreover, such other charities as are specified in Sect. 30 of the Endowed Schools Act of 1869, might often be converted and made applicable to purposes other than educational as— Provident Dispensaries, Provident Societies, and other Premiums or Incentives towards encouraging provident habits.
|8. A.||University Scholarships—Rationale of.|
|Sutton Valence and Christian Schools.|
|Hospitals and Dispensaries.|
|Church Grants—Lambe's Trust, &c.|
|B.||Technical education as connected with Clothworking.|
|" " City and Guilds of London Institute.|