City of London Livery Companies Commission. Report; Volume 1. Originally published by Eyre and Spottiswoode, London, 1884.
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Memorandum By Mr. Firth.
The presentation of "Statements" by some of the companies, containing strong personal reflections upon myself, and practical impeachments of my writings, renders it necessary for me to add to the Report (in the appendix of which such statements may be found) a memorandum setting out the facts on which the impeached propositions rest.
To a considerable extent the refutation of these Statements is already contained in the Report, but this is not the case as to the whole of them, and it is, therefore, necessary for me to deal with them specially.
I shall confine myself to the additional observations supplied by Sir Frederick Bramwell and Mr. Prideaux, on behalf of the Goldsmiths' Company, and to the "Statement" by the Grocers' Company.
Apart from a good deal of irrelevant personal matter, to which I shall allude later on, the chief attack of these two Companies is directed against nine propositions contained in my book "Municipal London."
With respect to this book, I may say generally that there was at the time when it was written very little available knowledge of the working of the Livery Companies. It was based as respects such matters upon information supplied from responsible sources, and those who take the trouble to compare its statements of fact and conclusions of law with those that are contained in this Report will find perhaps the most complete vindication of them both that has ever been afforded to any book written under such difficult conditions. The conclusions from such facts and law are summed up in "Municipal London" in nine propositions, and of these the Goldsmiths' Company say that they are all "either partially or entirely unfounded, except so far as they contain matter of opinion," and the Grocers' Company are not less emphatic.
The nine propositions set out in "Municipal London" at page 635 are as follows:—
1. The London Livery Companies are an integral part of the Corporation.
2. The property of the Companies is public trust property, and much of it is available for municipal purposes.
3. The Companies are trustees of vast estates, of which London tradesmen and artizans ought to be the beneficiaries, but such trusts are disregarded.
4. The Companies are also trustees of estates applicable to charitable uses; they fail to apply to such uses the whole of the funds fairly applicable to them.
5. The Companies were incorporated to benefit trade, to train artizans, and to repress bad workmanship; they perform none of these functions.
6. The Companies are, by Charter, to be composed of members of a given trade in many cases, and are legally compellable to admit members of it. They admit members irrespective of trade, and impose restrictions on those who are admissible.
7. The Companies are subject to the control of the Corporation, but as the members of that body are members of the Companies also, and are promoted in the latter concurrently with their advancement in the former, such control is never enforced.
8. The Companies are subject to the control of the Crown, and their lands and monopolous privileges were only granted on condition that they performed certain duties; they have ceased to perform the duties, but they continue to hold the lands.
9. The continuance of a large amount of land in the heart of the City, and in the north of Ireland, in the hands of corporate and unproductive bodies, is a hindrance to commerce and a loss to the public revenue.
"The Livery Companies are an integral part of the Corporation."
Sir Frederick Bramwell and Mr. Prideaux, on behalf of the Goldsmiths' Company, say that this proposition "is entirely unfounded, and is directly contrary to a legal decision cited by Mr. Firth in support of it." The Grocers' Company also deny its truth.
In support of the truth of the proposition, I may refer to the historical facts which are detailed in the preceding report, and to the opinion of Mr. Horace Davey, Q.C., printed in the Appendix, where he says, "I think the Companies must be considered to have been constituent and integral parts of the Municipal Corporation of the City of London. This is shown by the facts—(1) that no person could be a freeman of the City who was not a member of one of the Companies; (2) that the constituency which elected and still formally elects the Lord Mayor was composed of the liverymen of the Companies; (3) that liverymen, as such, enjoy the parliamentary franchise for the City, subject to certain conditions of residence imposed by statute; (4) that the old mode of raising money in the City was by the Corporation apportioning the sum required between the Companies, and issuing a precept to the Companies to raise their quota from their members (see in The Skinners' v. Irish Society, 12 Cl. & Fin.)"
These references may be regarded as decisive, and thus the Companies are at once brought within the principles applied to Municipal Corporations in 1835. It may, however, be useful to draw attention to some further considerations supporting the same conclusion.
And, first, as to the statutory provisions of the 11 Geo. I. c. 18, which still controls City elections.
By this statute it is provided that all elections of mayor, sheriffs, chamberlain, bridgemaster, and auditors are to be made by members of Companies, who are on the livery, and in case of a poll each elector is required to swear that he is a freeman of London, and that he has been for 12 calendar months on the livery of a particular Company. The Lord Mayor may by precept require the master and wardens of the various Companies to cause their clerks to return lists of all the liverymen upon oath. And it is further provided by section 14 that no person or persons whatsoever shall have any right or title to vote at any election of a mayor, &c. who have not been upon the livery for 12 calendar months before such election, and who have not paid their respective livery fines.
If the Livery Companies as such are not an integral part of the Corporation, then their dissolution would not affect it. But, if they were dissolved, it is manifest that there could be no election of either Lord Mayor or sheriffs, and the Corporation itself would ipso facto be dissolved also. R. v. Bellringer, 4 Durnford & East, 810; R. v. Miller, 6 D. & E., 268; R. v. Morris, 4 East, 17; and R. v. Pasmore, 3 D. & E., 241. It is pointed out in the preceding Report that "the freedom of a Company was, down to the year 1835, a condition precedent to the freedom of the City." In other words, the Companies formed the Municipality. See also evidence of Mr. Pulling before the Commissioners of 1854, Question 881: "A person cannot acquire the rank of citizenship without being a member of one of the Companies. The Companies, therefore, form legally an integral part of the Corporation of London."
The inference from the facts is, therefore, clear, and was accepted as clear by the Municipal Commissioners of 1835, who inquired into them on the basis of their being a part of the Corporation. It is also to be remarked that the Corporation of the City of London have invariably held this contention. It has been repeatedly held good in Courts of Law. In Wannell v. The Chamberlain of the City of London, quoted Question 3,013, a return that the Corporation of London "consists of several societies, guilds," &c. was held good. In the subsequent case, Rex v. Bosworth, 1 Strange, 1,111, a return by the Chamberlain of the City that "the Corporation consists of several guilds and fraternities into one of which persons entitled to freedom are admitted" was also held good. Notwithstanding this apparently unassailable contention, the Grocers' and Goldsmiths' Companies have suggested to the Commissioners that a case decided in 1775, and known as Plumbe's Case, has practically reversed the previous law, changed the constitution of the City, and dissociated the Companies from it. The case is not reported in any of the recognised reports, but may be found in an extremely rare book, edited by the solicitor of the City, John Roberts. The Companies, in their statements, have entirely misapprehended the effect of the case. The Grocers' Company have not even taken the trouble to ascertain the elementary facts in the case, as they say that it arose out of some "impudent proceedings of Lord Mayor Wilkes," when, as a matter of fact, it arose upon a precept of Lord Mayor Beckford, whose statue, as a chief defender of civic privileges, may now be seen in the Guildhall.
Having regard to the severe contention which exists about this case, and to the stupendous issues which the Companies suggest were decided on it, I think it necessary to set out the facts.
At a Common Hall, held June 25, 1769, after election of sheriffs, chamberlain, &c., it was resolved to petition His Majesty, praying for a redress of grievances. Such petition to be presented by the Lord Mayor and three of the City representatives in Parliament.
Such petition was presented, but the King gave no answer.
A committee of the livery was then appointed on 28th September 1769.
March 1st, 1770. They present a memorial to Common Council, asking them to convene liverymen to take further measures. This was agreed to. Lord Mayor Beckford sent precept to master and wardens of the various Companies, requiring them to meet on 6th March.
The livery met on that day in Common Hall, and agreed to an address, remonstrance, and petition to be presented to the King.
The King gave answer from the Throne.
22nd March 1770. Court of Assistants of Goldsmiths' Company resolved that for the future the wardens should not summon the livery to the Guildhall, except for purposes of elections, without express approbation or consent of the Court. Grocers and Weavers adopted similar resolutions.
9th April 1770. Lord Mayor sent precept to the master and wardens of Companies to appear on April 12th, to receive King's answer, and to take into consideration these resolutions.
April 12th, 1770. Common Hall held. King's answer reported, and proceedings of Goldsmiths, Grocers, and Weavers referred to the committee of the livery.
September 27th, 1770. Committee of livery memorialized Common Council for a joint committee of the Court, on the subject of reference, which was agreed to and appointed.
Case prepared for opinion of counsel: Mr. Wedderburn (afterwards Lord Loughborough), Serjeant Glynn, Mr. Denning, and the Common Serjeant, Mr. Nugent.
Their opinion was that the "head officer of every Corporation may convene the body or any class of it whenever he thinks proper." And that therefore the Lord Mayor, in convening the Common Hall, acted within his right, and that officers of Companies refusing to summon their respective bodies were punishable by disfranchisement.
June 5th, 1771, at Common Hall, resolved that informations of disfranchisement should be filed in the Lord Mayor's Court against wardens, &c. of the Goldsmiths, Weavers, and Grocers.
They were accordingly filed, but the only one tried was that against Alderman Plumbe, warden of Goldsmiths. Verdict of guilty given by special jury. And the judgment of the Court was that he should be disfranchised.
This was affirmed on a motion made in arrest of judgment. On this, a writ of error was brought, which was argued several times before the judges assigned specially for that purpose.
July 7th, 1775. The final decision was given at a Court of St. Martin's-le-Grand (being a Court of Error from the Mayor's Court) upon a commission directed to Sir William de Grey, Lord Chief Justice of Common Pleas, Sir Sydney Stafford Smythe, Lord Chief Baron of the Court of Exchequer, Sir Richard Aston and Sir William Ashhurst, two justices of Court of Queen's Bench, and Mr. Baron Perrott (who afterwards resigned).
Mr. Justice Ashhurst, in his judgment, took exception to the information not setting out with precision "such a certain description of fact imputed to the defendant as that the court may form a judgment whether it amounts in point of law to a crime in the defendant or not."
He pointed out that the information did not set out the terms of the address, and if the address was ever so proper, but had nothing to do with the corporate relation of the livery, he was not then bound in duty to obey the precept." [The direct inference from this is—and this is supported by the judgment of the rest of the judges—that he would be bound to obey any precept in respect to the corporate relation of the livery.]
Mr. Justice Ashhurst came to the conclusion that there was no crime in the defendant, on the ground that the address did "not contain any matter that concerned the City of London in its corporate capacity." [Here again, the clear inference is, that if the corporate capacity of the City were involved obedience must follow.] He says that the presentation of a petition "to the King has nothing to do with the corporate duties of this or of any other city. A corporation as such might do it if they please, but it is not a matter of corporate obligation, and if it is not a matter of corporate obligation, the refusing to execute that precept which merely concerned that purpose, which was not a corporate one, cannot be a corporate offence, and therefore, in my opinion, cannot be a ground for a motion." [Throughout these judgments the Companies are treated and regarded as an integral part of the Corporation, and subject to its corporate head in all corporate matters. For example: If the impending London Government Bill were to propose the extension of the City Corporation over the whole of London, there can be no doubt whatever that the Lord Mayor would be entitled to precept all the Companies to meet and consider such matter, and that upon these judgments, as they stand, disobedience by the wardens to such precepts would be punishable.]
Mr. Justice Aston's decision went upon the ground, that Alderman Plumbe's offence was a bare omission, a mere contempt at the most, and not a sufficient cause of disfranchisement.
"There is no instance," he says, "where one omission has been held sufficient to deprive a man of his freehold."
He considered the information bad, on the ground that a single omission of a mere ministerial act is not a sufficient cause of disfranchisement."
He further says, that "in his opinion that there was no charge at all in a corporate capacity," and he considered it did "not relate at all to the livery of the Company in their corporate capacity."
Lord Chief Baron Smythe held that there was not a sufficient offence for such a punishment. He confines the power of the Mayor to summon the livery to some corporate purpose, and with respect to the summons in question says, "I do not find here by this summons that it appears to be for any corporate purpose whatever."
And he held that if it was a "breach of duty in the defendant it was in another capacity as warden of the Company of Goldsmiths and not as freeman."
Lord Chief Justice De Grey considered that the information was insufficient in a good many particulars in not setting out what was the power and authority of the Mayor, what the duty of the wardens, the constitution of the Livery Companies, and the relation the remonstrances to the King bore to any corporate purposes of the City or of the Companies, &c. And in the absence of this information, he says, that "it is not possible for any man living to form an opinion whether the franchise is forfeited."
[Nothing is more clear than that the reversal of the judgment of disfranchisement was not given upon the ground that the precept from the Lord Mayor was ultra vires, and, as shown above, Lord Chief Justice De Grey complains that they had not before them in the information evidence upon which they could form any opinion upon this question.]
He admits, however, that the courts of Westminster Hall are bound to take judicial cognizance of certain things as that the Livery Companies are subordinate "and auxiliary" to the general body of the Corporation, "that they are bound by the acts of Common Council, particularly affecting them, and that by Act of Parliament they have a large share in the election of magistrates." He regards them as a part of the City now, "though not a part of the Corporation of the City originally."
In the absence of further knowledge, he says, "we cannot know what this remonstrance was, or how it related to the corporate business of the City."
Chief Justice De Grey goes rather further than the other judges in the matter of the authority of the head of the Corporation, and in addition to admitting the right of the Mayor to summon the Companies in matters affecting the corporate capacities of the City, suggests a case where "the Lord Mayor, Aldermen, and Livery might have business on which they might think it proper to address the Crown," and that "in such a case it would be the duty of the warden to obey the precept."
He was further of opinion, "that it was not a wilful contumacy which could possibly be a crime."
The City Solicitor, in reviewing and editing the judgments, complained, with evident reason, of the want of knowledge of the City constitution which was displayed by the learned judges in many parts of their judgments.
The City's contention was, that the City "being the greater body, necessarily comprehends all the lesser with which they must of course be subject or subordinate."
It is, perhaps, needless to add that the Lord Mayor continued to summon the livery for other than electoral purposes long after this remarkable decision by precept to the wardens summoned to the livery to consider the London Government Bill. The decision itself neither had, nor purported to have, any effect upon the City constitution whatsoever, and yet two of the largest of the London Livery Companies have made themselves responsible for the suggestion that it changed the constitution and the practice of the Corporation, and, further, have made it a matter of "grave charge" against me that I have misrepresented the effect of the case. I quite understand that the exigencies of the Companies' position render it necessary for them, at all hazards, to repel the contention that they are integral parts of a public Corporation; but I cannot permit them to do so at the expense, not merely of fact and of law, but also by charging me with misrepresenting a case which, when fully set out, confirms what I said of it in every particular.
The Goldsmiths' Company further endeavour to contravene the proposition as to position of the Livery Companies by quoting an act of the Common Council of the 4th November 1651. With respect to this "act of Common Council" it is sufficient to say:—
a. That it does not in any way support the Goldsmiths' Company's suggestion.
b. That it was never put in force even for a single year (Report to Court of Common Council from Committee on Election Act, 11 Geo. 1, pages 11 and 12.)
c. If it had been put in force, it would have been legislatively superseded by the 11 Geo. 1. c. 18.
"That the property is public trust property, and much of it is available for Municipal purposes."
The truth of this proposition is abundantly supported by the Report of the Commissioners and by the recommendation that part of the corporate property should be appropriated for municipal purposes within the metropolis. The property of the Companies is that which is (a) distinctly charitable, and (b) corporate property. The right of Parliament to deal with the latter has been established ever since the passing of the Mortmain Acts, and it is upon the well-recognised principles on which intervention by the Legislature has proceeded, that the present Report of the Commission is based. Moreover, these Corporations hold their properties by Charter, and, as was held in Sir James Smith's case (4 Mod. 53), incorporation by a charter in itself creates a trust, and where the trust is broken the charter itself is forfeited. So far as the real estate of the Companies is concerned, which has been acquired or is held under the charters conferring power of holding land in mortmain, it would appear that they are subjects of a charitable trust, and this is the opinion given to the Commission by Mr. Vaughan Hawkins.
And further, with respect to realty, it may be noticed that the Commission have already decided that they are public bodies holding such property for public purposes.
"The Companies are trustees of vast Estates of which London Tradesmen and Artizans ought to be the beneficiaries, but such trusts are disregarded."
The Goldsmiths' Company state that this proposition "is untrue, and that all trusts reposed in the Companies have been faithfully fulfilled," and the Grocers' Company state they "are unaware of the existence of any such trusts."
The trust property here referred to is of course the general corporate property of the guilds, as distinguished from that which is already controlled by the Charity Commissioners. The whole history of these Companies conclusively shows that they were craft guilds, mainly brought into existence by the association of trades for the regulation and government of trade : that they were enriched by the liberality of the members of such trade, that nearly the whole of such property was acquired by or given to them as such trade societies, and on the understanding that they should teach the trade, that they should admit to the freedom all persons practising the trade in whatsoever capacity, and that they should benefit and assist such persons of the trade as might require assistance. In many cases the charters expressly provide this, see, for example, the Goldsmiths' Letters Patent, 23 & 24 Edward III., 16 Richard II., and subsequent confirmatory charters. And as to the Grocers', see charters 7 Henry VI. Where property has been given by members of a guild it was in most cases given to them as such trade association, and with the view of the full carrying out of trade purposes.
In Equity, if not indeed also in Law, these classes of persons ought, so long as the Companies are continued, to possess an interest in funds so acquired, and if the Companies are dissolved, the funds according to the precedents already set by Parliament ought to be made available for purposes of acknowledged public utility. The Commission has already reported to this effect, and it is needless to discuss the matter further.
The proposition that such public trusts are disregarded is sufficiently proved by the evidence of the Companies themselves as to the appropriation of the property to entirely different purposes.
"The Companies are also trustees of estates applicable to charitable uses," and they fail to apply to such uses the funds fairly applicable to them."
The Goldsmiths' Company state that this proposition is untrue, whilst the Grocers' Company content themselves with the statement that they discharge strictly all their legal trusts, and supplement them very largely from their corporate funds. This proposition applies to the distinctly charitable property of the guilds. It is completely upheld by the report. It has been supported by decided cases, as, for example, in Attorney-General v. Merchant Taylors' (Donkyn's case), the Attorney-General v. the Waxchandlers' Company (Kendall's case), and even in the Grocers' statement, page 8, they state that an inquiry of mine as to the present appropriation of Pennyfather's and Wardall's trusts for the poor are "baseless imputations," although they themselves admit that no part of these trusts are now appropriated to the poor. As the proposition is adopted and extended in the Report of the Commissioners, and constantly illustrated in the returns of the Companies, it is not necessary to allude to it any further.
"That the Companies were incorporated to benefit trade, to train artizans, and to repress bad workmanship. They perform none of these functions."
The Grocers' Company deny that they were incorporated for any such purpose, whilst the Goldsmiths' Company admit the incorporation, but assert that they perform the functions. The functions now performed by the Goldsmiths' are those conferred upon them by Statute. With regard to the assertion of the Grocers' it is sufficient to refer to the words of their very last charter, that of 2 William and Mary, in which their trade powers and privileges are fully confirmed. These trade functions of the Grocers came down from the very foundation of the Company. They had Letters Patent confirming them repeatedly granted. They were made garbellers of spices within the City, and Herbert gives many instances where culpable members of the fraternity were fined for adulterating goods, &c., and as to the Goldsmiths' see charters of 16 Richard II., 20 Henry VII., and confirmatory charters of 1 Hen. VIII., 1 Edward VI., 1 Mary, 3 Elizabeth, and 2 James I.
The Goldsmiths' Company admit their duty to train artizans, although the working goldsmiths of London are excluded from their Company and its benefits. They say "they help to train artizans by offering prizes for excellence in design and execution of work in the precious metals." They further assert that they assist societies in connection with the trade, but it will be seen (see questions 2,812 and 2,994) that in 10 years they only devoted to this purpose 6,448l. out of a current expenditure of halfa-million sterling, being at the rate of rather less than 1½ per cent. This expenditure in connection with the trade may be usefully contrasted with an expenditure on Courts committees, entertainments, housekeeping, salaries, repairs, and maintenance generally of over 200,000l. (Question 2,994).
The Goldsmiths' exercised absolute control over the goldsmiths free of their Company in the City, and over the working goldsmiths over every part of the metropolis, 2 Herbert, 130. Many of the Companies have exercised control over their trades down to a late period; see Cook v. Loveland, 2 B. & P., 31. Down to a recent period freedom of the City was a condition precedent to carrying on business in the City, and freedom in a Company was a condition precedent to freedom of the City; Clark v. Denton, 1 B. & Ad., 92.
In Clark v. Le Cren, 9 B. & C., 52, the mayor, aldermen, and sheriffs returned to a writ that the Companies were "established for the carrying on of trade."
Most of the Companies have gone even further, and have placed it out of their power effectually to control the trade by declining to admit or elect to office persons in any way connected with it. The returns of the Companies published with this report show this to be the rule rather than the exception. Even in the Goldsmiths' Company, where under their charter they are bound to elect "honest, lawful, and sufficient men best skilled in the trade" to enquire, reform, and punish, they have not merely declined to elect leading goldsmiths in favour of persons not connected with the trade, but have even elected wardens who are wanting in that qualification, and but one quarter of the Court have any connection with the trade whatever. It is moreover contended that the indenture of apprenticeships in City Companies only bind the master to teach the apprentice his own trade whatever that may be, and that therefore a clergyman on the Goldsmiths' Company may take an apprentice and fulfil the requirements of the indenture by teaching him theology. The following copy of an ordinary indenture in the Goldsmiths' Company is therefore appended in order that the value of this contention may be estimated. It was produced to the Commission by one of the Court of Assistants:—
"This Indenture Witnesseth that doth put himself Apprentice to a Citizen and Goldsmith of London, to learn his Art of a and with him, (after the manner of an Apprentice) to serve from the day of the date of these Presents, until the full end and Term of Seven Years, thence next ensuing, to be fully complete and ended. During which Term, the said Apprentice his said Master faithfully shall serve, his Secrets keep, his lawful Commands everywhere gladly do. He shall do no Damage to his said Master, nor see it to be done by others; but that he to the best of his Power shall let, or forthwith give Warning to his said Master of the same. He shall not waste the Goods of his said Master, nor lend them unlawfully to any. He shall not commit Fornication, nor contract Matrimony, within the said Term. He shall not play at Cards, Dice, Tables, nor any other unlawful Games, whereby his said Master may have any Loss. With his own Goods, or others during the said Term, without Licence of his said Master, he shall neither buy nor sell. He shall not haunt Taverns nor Playhouses, nor absent himself from his said Master's Service by Day nor Night unlawfully; but in all things, as a faithful Apprentice, he shall behave himself towards his said Master, and all his, during the said Term. And the said Master, in consideration of the Premises, and of the sum of of lawful money of Great Britain in hand now paid to him, the receipt whereof he doth hereby acknowledge, his said Apprentice, in the said Art which he useth, by the best means that he can, shall teach and instruct, or cause to be taught and instructed; finding unto his said Apprentice, Meat, Drink, Apparel, Lodging, and all other necessaries, according to the Custom of the City of London, during the said Term. And for the true performance of all and every the said Covenants and Agreements, each of the said Parties binds himself unto the other by these presents. In Witness whereof, the said Parties to these Presents have hereunto interchangeably set their Hands and Seals, the Day of in the Year of the Reign of our Sovereign Lady Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, and in the Year of our Lord one thousand eight hundred and Sealed and Delivered in the Presence of
This Indenture must be immediately enrolled at the Chamberlain's Office, Guildhall.
—And on the Death or Change of Master, the Apprentice must come to Goldsmiths' Hall, to be turned over to the Executor or new Master, and afterwards attend at Guildhall to be registered, or he will lose his Freedom.
Note.—By an Act of Parliament every Indenture, Covenant, Article, or Contract, must bear Date the Day it is executed; and what Money or other Thing is given or contracted for with the Clerk or Apprentice, must be inserted in words at Length; otherwise it will be void, the Master or Mistress forfeit Fifty Pounds, and another Penalty; and the Apprentice be disabled to follow his Trade, or be made Free.
"The Companies are by charter to be composed of members of a given trade in many cases, and are legally compellable to admit members of it. They admit members irrespective of trade, and impose restrictions on those who are admissible."
The Grocers say this is "inapplicable to their Company which was never a trade guild." The last note answers this denial of the Grocers, as does also the Report of this Commission. Nothing can be clearer as to the right of admission to the Grocers' Company than the words of the charter of William and Mary, "And further of our special grace, &c., we do give and grant that all and singular person and persons now exercising or using, or who hereafter shall exercise or use, the mystery of Grocers, or the arts or mysteries of a confectioner, druggist, tobacconist, tobacco cutter and sugar refiner, or any of those within our City of London, the suburbs of the same, or within 3 miles, &c., that they from henceforth shall and may be able to be made free men of the same society or mystery of Grocers of the City of London." There is very little reason to doubt that upon the true construction of this charter all persons now carrying on the several trades named could insist on being admitted to the freedom of the Grocers', and the same applies to the other guilds. In Wannel's case it was held that when an act of common council required all joiners in London to take up their freedom in the Joiners' Company under a certain penalty, a mandamus would lie to compel the Company to admit them.
In his "Laws of London," p. 79, Pulling says, "It may, nevertheless, however, admit of considerable doubt whether every tradesman within London has not still an inchoate right to be admitted a member of that particular Company having the superintendence over his trade. These Companies are not voluntary societies, consisting of persons chosen by voluntary consent; nor can the admission of members, as in the corporation at large, be considered to be settled by prescription, and confined to persons possessed of particular qualifications, as apprenticeship or patrimony; on the contrary, the charters of all the incorporated Companies expressly state them to be composed of the working members of the different trades or mysteries which they represent; and further, in many instances require all persons in such trades, within certain limits, to become members thereof."
There is abundant evidence in the returns of the Companies to the admission of persons irrespective of the trade they follow, and the imposition of restrictions upon the admission of those who do follow it, as alleged in the proposition. Upon this matter I think the language of Pulling is worthy of special note. He says, "The higher Companies have many of them provided against the chance of indiscriminate admission, by imposing heavy fees thereon, but it may be also doubted whether these payments could, at this day, be enforced in a court of law, wherever the primâ facie right to admission is established.
"It has been repeatedly decided that a byelaw that any person not otherwise entitled to the freedom should be admitted a member of a public corporation, upon payment of a certain sum, is void, as an essential alteration of the constitution of the corporation (Rex v. Breton, 4 Burr, 2,260; City of London's case 8 Co. 126 b.; see also Rex v. Bird, 13 East, 384). Much more, it is conceived, would the system adopted by many of these corporations, which are expressly established for so important a purpose as the protection of trade, be held bad, by which the freedom is sold to persons wholly unconnected with the trade or mystery they profess to represent."
This last reference to the doubtful legality of admission by redemption (i.e., purchase) is very significant. In my opinion the continuance of such a form of admission is absolutely indefensible.
"The Companies are subject to the control of the Corporation."
This is, according to the Goldsmiths' Company, "either partially or entirely unfounded." The Grocers' Company deny it altogether, and say the matter was brought to an issue and settled in 1773, meaning Plumbe's case, which, as I have shown, settles nothing of the kind.
The evidence of the exercise of such control is voluminous, and extends down to a late period. The Goldsmiths' Company itself has repeatedly been the subject of such control. It has obeyed precepts of the mayor and chamberlain to provide men for City pageants (Herbert ii., 135), and also precepts of the mayor only to provide men for the King's use (Herbert ii., 137). It has obeyed precepts to contribute in money for the relief of the City poor, and also to contribute coals for the poor (Herbert ii., 144). Quarrels between the Company and its members have been referred to the mayor and aldermen for settlement (Herbert ii., 145), and the Lord Mayor punished members of this Company for disobedience to its wardens (Herbert ii., 171). See also Pulling's Customs of London under head "Trade."
The Corporation has constantly exercised the power of compelling the Companies to receive members (see Herbert i., 316 note where the Drapers' Company refusing to receive an alderman were compelled to receive him), and another case where an alderman refusing to join one of the large Companies was fined and committed to Newgate.
This control also has been recognised and upheld in courts of law. It was so upheld in Wannel's case quoted supra, where the Joiners' Company were enjoined by mandamus to admit, and in the case of King v. Clerk, 12 Mod. 114, which was a case of the committal to Newgate of one J. C. for refusing to take up the livery of the Vintners, where the keeper of Newgate returned to a Habeas Corpus, inter alia, that the Court of Mayor and Aldermen had "the government of all Companies, and that upon complaint made before them by the master and wardens of any Company of any person duly chosen on the livery refusing to take up such livery, that the Court of Aldermen used to commit such persons so refusing to the Sheriff or some other officer of the City until he consented and declared that he would take upon himself the said office, or otherwise be discharged by due course of law."—Holt, C. J., and the whole Court held this custom to be good. Upon a technical omission in the return itself the prisoner was discharged, but the custom as to the control by the Corporation of all the Companies and of their members which was here upheld by the Court has never been subsequently impeached, and is still the law.
It appears, according to the return in this case, that at this time "there was a Court of Record held in the said City before the Lord Mayor and Aldermen at Guildhall twice in every week, where rules and orders were made in all things relating to the several Companies for the better government of the City, and that the said Companies were under the correction of that Court," 5 Mod. 156, see also 5 Mod. 320.
In the case of Rex v. Harrison, decided in 1762 and reported 3 Burr. 1322, the decision in Wannel's case was upheld and adopted by the whole Court, consisting of Lord Mansfield, Denison, J., Foster, J.. and Wilmot, J. In that case Sir Thomas Harrison, the City Chamberlain, returned to a mandamus requiring him to admit one W. Cope into the freedom of the City, that there are several guilds, Companies, &c. in the City of London, which guilds, Companies, &c. have used and ought to have the overseeing, correction, and government of the several persons using and exercising the several arts, trades, mysteries, and manual occupations belonging to such several societies, guilds, fraternities, fellowships, and companies, in the use and exercise of such arts, trades, mysteries, and manual occupations within the said city and liberties thereof; and that the said several societies, &c. "for all the time aforesaid have used, and ought, and yet use and ought, to be under the order, government, and regulation of the mayor and aldermen of the said City for the time being with the commonalty of the said City for the time being, in common Council assembled;" and it was held by all the judges, that an act of Common Council of 20th June 1727, compelling all butchers in London to be free of the Butchers' Company was legal, and that the end of that byelaw was to restore the original constitution of the Corporation; that it was right and reasonable, and must have been the meaning of the custom, that each Company should have the inspection of their own trade. (See the observations of Lord Mansfield and the other judges in the above case, 3 Burr. 1328.) See similar words in return of Mayor, aldermen, &c., of London in 1829, Clark v. Le Cren, 9 B. & C. 52, where the above decision was held good. The decision in this case has never been questioned, and the fact that during recent years the control by the City has in some respects fallen into desuetude, is in my opinion utterly immaterial inasmuch as the customs of the City of London are declared never to become obsolete by misuse or disuse ("usi vel abusi" as the charter 7 Ric. II. has it): they are, moreover, expressly confirmed by Act of Parliament and can only be repealed by equal authority (Pulling, p. 3).
With respect to the statement that the control by the Corporation is not enforced, this appears to be admitted, and probably the fact that nearly every member of the Corporation is also a member of a guild, would not be denied. The Companies to which the members belong are set out in the City's Pocket Book, see also Comm. 1854, Q., 667.
The Goldsmiths' Company have themselves petitioned the Lord Mayor and aldermen against interference with their trade; see case quoted in Remembrancia, 219. See also reference from the Lords of the Council to Lord Mayor and aldermen on the complaint of the Goldsmiths as to fraudulent working. The carrying out of trade regulations by the guild was also to be with the assistance of the mayor and sheriffs; see charter of Goldsmiths, 1 Edw. III. Some of the charters of the Companies specifically place the Companies under the control of the Corporation, and it was with this view and object that their charters were enrolled in the City Chamber. An illustration of this may be taken from the Needlemakers' charter, where after drawing attention to the fact that the members of the Company were under the government of the City of London, the King goes on to say, "We hereby declare our will and pleasure to be that the Lord Mayor and Aldermen of the City of London for the time being do cause and allow these our letters patent to be enrolled within the Council Chamber of the said city, amongst the records thereof to the intent that those that are and shall be freemen of London and members of the said society of Needlemakers' may be subject to the government of the city, and may enjoy the benefit thereof." Similar provisions are contained in contemporaneous charters to other Companies.
This control of the Corporation is also conclusively shown by the Report of this Commission.
The Companies are subject to the control of the Crown.
The Goldsmiths' Company say "This is not true; the Companies are not subject to the control of the Crown." With respect to this it is to be noted that the powers of holding land and the various privileges of the Company were granted by the Crown, and at the commencement of each important reign the charters were confirmed, and in many instances, without any alteration. The necessity for such confirmation is not clear unless the control of the Crown existed; still less does it appear that the payment of money for a simple confirmation would be required. After the governing and incorporating charters of Edward III. and Ric. II., we find such charters granted in 3 Henry IV., 5 Henry V., 1 Henry VI., 2 Edward IV., 20 Henry VII., 1 Henry VIII., 1 Edward VI., 1 William and Mary, 3 Elizabeth, 2 James 1.
The Company have obeyed ordinances and precepts from the Crown for various purposes (Herbert II., 136, 139, &c.) They have offered to surrender their incorporation into the hands of the Crown and they have admitted and paid assayers appointed by the Crown.
This matter has already been sufficiently conceded in the Report, and practically forms part of the basis on which such Report proceeds. The whole history of the Companies show that they themselves fully admitted it up to a recent period. (See as to Grocers', Question 2420 to 2445).
The rules and byelaws of the Companies generally received the consent of the Crown through its high judicial officers, and this would appear to be always necessary under 19 Henry VII. c. 7. In some cases, as for example, in the Charter of the Bakers' Company, there is a power in the Crown to amove the master, wardens, assistants, or clerk of the Company. The Crown has exercised the right of inquiry under penalty of forfeiture, as by 12 Richard II., and in 1684 the Companies, without any pressure whatever being brought to bear upon them, surrendered their Charters to the King and asked him in his "princely wisdom" to regulate their government. The new Charters which were granted after this surrender and which were accepted by the Companies, contained provisions for the removal of the officers of the Companies at the discretion of the Crown, and for placing the whole body of the Companies under the direct control of the Lord Mayor and Aldermen. On the accession of William III., the old Charters were re-established.
The continuance of a large amount of land in the heart of the City and in the north of Ireland in the hands of corporate and unproductive bodies is a hindrance to commerce and a loss to the public revenue.
The loss to the public revenue, alluded to in this proposition, arises from the fact that whereas in the hands of private owners succession duty is paid upon land once every 20 or 30 years, it is never paid by lands held in mortmain. Such lands are not sold, and there is no exchange or distribution of ownership, so that at the present moment in this great commercial capital the land upon which the City stands is the least commercial part of it. The disadvantages of this are self-evident.
The attacks of the Companies against myself have been mainly directed to the nine propositions enumerated above. Most of these propositions find the amplest justification in the admirable Report which has been signed by the majority of the Commission, but in order that no point of the charge should remain unanswered, I have appended these memoranda.
There are in the statements of some of the Companies other allegations of less importance with which it is unnecessary to deal, inasmuch as their refutation may be found either in the Report itself or in other available sources of information. I will give two illustrations of these allegations in order to indicate my meaning. They are taken from the additional statement supplied by Sir Frederick Bramwell and Mr. Prideaux on behalf of the Goldsmiths' Company.
The Goldsmiths' Company contest the truth of a statement in "Municipal London" to the effect that it is a considerable pecuniary advantage to be a member of the Court of Assistants of a City Company, and say that this is not the case in the Goldsmiths' Company.
On reference to the Goldsmiths' Return to our inquiries, it will be seen that 1,576l. was paid to those who attended courts and committees in 1881. But the proportion which the payment to members bears to income is in some Companies very large, as may be seen from the Returns. The largest absolute payment to a Court of Assistants is in the Mercers' Company, and from their Return it appears that there was paid in 1880:—
Payments ordered to members attending—
|Courts of Assistants||5,292||4||0|
The Returns abundantly prove the truth of my statement.
The other illustration is also from the Goldsmiths' Company's statement, where they contest an incidental observation in "Municipal London" to the effect that "in addition to their salaries they sometimes find a bank note delicately secreted under their plates." They say, "So far as regards the Goldsmiths' Company this is untrue, and we do not believe there is any foundation whatever for it as regards any other Company." The matter is of trivial importance, but as it is made matter of special attack, I may say that the existence of such a custom in some of the Companies is well known, and, so far as I know, has never been previously denied until denied in the Goldsmiths' statement, and also by Sir Frederick Bramwell in his evidence before the Commission. In addition, however, to its truth being a matter of general knowledge, it is also a matter of record. An illustration of this may be found in the evidence given by Mr. Hickson, a responsible witness before the last Commission on the Corporation of London, a Commission with which Lord Coleridge was connected. Questioned as to the propriety of placing the property of the Livery Companies in public trust, this witness detailed some of their methods of expenditure, and amongst other things said, "The rich Companies get rid of some of their wealth by giving the most expensive dinners, and it is still customary to place a five or ten pound note under the plate of a liveryman invited, if a member of the Court of Assistants. Two guineas is a common fee for attendance at a dinner, even in some of the poorer Companies" (Q. 2970). It is to be observed that wherever possible, the evidence given to the Commission which affected the City was afterwards explained or answered by City witnesses subsequently called, but so far as I know this evidence as to the practice of the Companies was never impeached or contradicted. In matters of this kind, it appears to be supposed that evidence cannot be procured from living members of the Court of Assistants, because, however anxious they may be for reform, they are expected to hesitate, as they do hesitate, to face the ostracism and obloquy of giving evidence against their fellows.
This matter is intrinsically one of small importance. When the livery Companies claim, as the Goldsmiths' Company claims, the right to divide their property amongst themselves, it would seem that the method of division is comparatively unimportant. But it has been made of importance by being taken as a test case whereon to rest allegations that a book which I wrote in 1875 is unreliable in its character. It is, therefore, necessary to answer it, and perhaps the Companies may now be convinced that so unusual a course of procedure has proved to be as unsuccessful as it was unwise.
JOSEPH F. B. FIRTH.