The Online Library of Liberty

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• The Materials For English Legal History 1
• Possession For Year and Day 1
• The Introduction of English Law Into Ireland 1
• The Surnames of English Villages 1
• Northumbrian Tenures 1
• The History of the Register of Original Writs 1
• Remainders After Conditional Fees 1
• The “praerogativa Regis 1 ”
• A Conveyancer In the Thirteenth Century 1
• A New Point On Villein Tenure 1
• Frankalmoign In the Twelfth and Thirteenth Centuries 1
• Review of “the Gild Merchant 1 ”
• Henry Ii and the Criminous Clerks 1
• Tenures In Roussillon and Namur 1
• Glanvill Revised 1
• The Peace of God and the Land-peace 1
• History From the Charter Roll 1
• Taltarum's Case 1
• The Survival of Archaic Communities 1
• I.: The Malmesbury Case.
• II.: The Aston Case.
• The History of a Cambridgeshire Manor 1
• The Origin of Uses 1
• Outlines of English Legal History, 560—1600 1
• Old English Law.
• English Aw Under Norman and Angevin.
• The Growth of Jurisprudence. 1154–1273.
• Legal Reform Under Edward I.
• English Law , 1307–1600.

REVIEW OF “THE GILD MERCHANT1 ”

TheGilda Mercatoria of 1883 has become the Gild Merchant of 1890; the little German tract published at Göttingen has grown into two noble volumes equipped with appendixes, glossary, index, bibliography, “proofs and illustrations,” “supplementary proofs and illustrations,” and every device for the ease and contentment of readers that the Clarendon Press can command. As a secondary title for his book, Dr Gross has chosen A Contribution to British Municipal History; and if his English critics do not at once say that this is the largest contribution of new and authentic raw material that has been made by any one man to this unfortunate and neglected subject, he will not take this ill of them, when he knows what, in all probability, is the only exception present to their minds. “Madox ist ein Forscher ersten Ranges.” Dr Gross, when seven years ago he wrote this sentence, gave not the least among the many proofs that he was on the right track. No one is likely to make much of a “contribution to British municipal history” who does not know and admire his Madox; and yet, in a very popular history of England, a list of the authorities for the tale of our boroughs spoke of Merewether and Stephens, of Brady and Brentano, and said nothing of the Firma Burgi. Our boroughs have not been very happy in their historians; few have been able to approach the story of their early adventures without some lamentable bias towards edificatory doctrine, or some desire to prove a narrow and inadequate thesis. Madox was one of the few. “In truth, writing of history is in some sort a religious act.” Coming from some people we should resent such words as cant: we do not resent them when they come from Madox. And now on our bookshelf we can place The Gild Merchant next to the Firma Burgi, and know that each of them is where it should be. Like his illustrious predecessor, Dr Gross has perceived that a very laborious induction is the one method that can deal with the complex subject-matter, and that if the theorist is to persuade such of his readers as are really worth persuading, he must give them not merely his theories, but the evidence which proves those theories; must give the very terms of the original documents candidly, accurately, and at length. The result is work that must perdure, a book that must become classical; for, put the case that all the author's speculations are unfounded, and will be disproved in due course, the evidence that he has been diligently collecting during the past seven years from the scattered and obscure archives of our towns will remain of priceless value to any one who would either contradict him or follow in his steps. When, if ever, his first volume has become obsolete, there will still be the second volume with its proofs and illustrations, and supplementary proofs and illustrations, its precious extracts from rolls that have never been used before, rolls which are dispersed abroad throughout England, and for the continued existence of which we have no very perfect security.

Differing in this from some of his forerunners, Dr Gross does not believe that a history of the gild merchant can be a full history, or anything at all like a full history, of the English boroughs. He holds out to us the hope of another “contribution.” He has, he tells us, collected much material bearing on the governmental constitution of the towns, in particular on the growth of “the select body.” Also he has “almost ready for the press a comprehensive bibliography of British municipal history, comprising about 4000 titles, with a critical survey of the whole literature.” But then comes a qualification or stipulation. “Whether it will ever be printed must probably depend upon the success of the present work.” This puts us in a difficulty. We want these further contributions, but would like to purchase them without the expenditure of a falsehood. But what are we to say? To tell Dr Gross that his book will sell well? The falsehood, if such it would be, would not even deceive, for publishers keep accounts; and in truth to predict a great sale for such a book is impossible. Had Dr Gross wished to make a book that would attract the largest number of readers, he should have taken not Madox but Brentano as his model. He should have been brief; he should have been dogmatic; he should have cited few authorities, and been very positive about the meaning of those that he cited, and then, may be, there would have been for some years a general agreement as to his infallibility. But if in such a context it be “success” enough to have made a book, which every one who knows anything about the matter of it will pronounce to be a great book, a book which every labourer in the same field must not merely read, but keep permanently at his elbow, then we claim an immediate fulfilment of the promise. We must have the “bibliography,” we must have the “critical survey of literature,” and the history of the select body, for the “success of the present work” is assured—it has already taken its place beside the Firma Burgi. Should any one ask for more success?

To give a summary of such a book is to do it an injustice; for happily it comprises those copious proofs and illustrations, in particular those Andover Gild Rolls, the like of which have not been printed, the like of which few readers of English history can have hoped to see. Nevertheless I will endeavour to set forth, in as few words as possible, the main points which Dr Gross has made.

There is no proof whatever of the existence of any gild merchant before the Norman Conquest. The importance of the Anglo-Saxon gilds has often been exaggerated. There is no proof that there were gilds in England before the ninth century. The meaning of “gegildan” in the laws of Ine and Alfred is extremely uncertain; but it does not necessarily point to gilds. Kemble and Schmid agree about this. It is in the highest degree doubtful whether the Judicia Civitatis Londoniœ can be fairly described as “the statutes of a London gild.” The organisation of which they speak seems no voluntary brotherhood, but a compulsory organisation for police purposes. At any rate they stand alone, and we may not draw general inferences from them. There is nothing to show that the “knight's gild” was, or became, a merchant gild, or that it had anything to do with the government of the town. Passing to Domesday Book, the survey does not, as is generally supposed, prove the existence at Canterbury of a burghers’ gild and a priests’ gild. The passage “Burgenses habebant de rege xxxiii acres terre gildam suam,” may mean that they had thirty-three acres which were part of the property for which they paid “geld”—they held this land “in their geld.” Dr Gross, on more than one occasion, appeals to the connection between “gild” and “geld.” The history of the gild merchant begins with the Norman Conquest. The earliest distinct references to it occur in a charter granted by Robert Fitz Hamon to the burgesses of Burford (1087–1107), and in a document drawn up while Anselm was Archbishop of Canterbury (1093–1109). It is mentioned in various charters of Henry I, and it is one of the franchises commonly granted to the towns by Henry II, Richard and John. Dr Gross rightly, as it seems to me, insists, in many places, that the privilege of having a gild merchant is one among many franchises (libertates), that is to say, privileges which none but the king can grant. He never forgets, as some of his predecessors have forgotten, that in England the development of the boroughs is conditioned at every point by common law and royal power. Now the meaning of this franchise is best seen from an account preserved in the Domesday Book of Ipswich, concerning what happened there in the year 1200. The men of Ipswich obtained a charter from King John which granted to them, among other rights, the right to have a gild merchant. They proceeded to organise themselves as a borough. They elected bailiffs, coroners, and capital portmen; and then, this done, they proceeded to establish a merchant gild, which was to be governed by an alderman and four associates. Here and elsewhere we see the merchant gild as something distinct from the governing body of the borough, or from the nascent municipal corporation. It is so everywhere, or almost everywhere. The gild is not the borough; the gild has officers, aldermen, skevins (scabini), stewards, marshals, cup-bearers, and so forth, who are distinct from the governing officers of the borough, the mayor, bailiffs, coroners, capital burgesses and the like; “the morning speech” of the gild brothers is distinct from the court and council of the borough, the portmote or burghmote; a gildsman is not necessarily a burgess, a burgess is not necessarily a gildsman. Some of the most important boroughs never have merchant gilds. There is no proof whatever that there ever was a gild merchant in London. The communa of London which John recognised was no gild merchant. The argument from a gild hall to a gild merchant is idle. The famous passage in Glanvill, which some have regarded as establishing the identity of the communa with the gilda, may be a gloss, and, at any rate, does not prove the proposition in support of which it is commonly adduced. There is no proof of a gild merchant having existed in such important towns as Norwich (Mr Hudson, in his admirable paper on the history of Norwich, has recently confirmed this), Northampton, or Exeter. Indeed, it is in the small mesne boroughs that the importance of the gild merchant reaches its highest point. In such boroughs the court is still under seignorial influence—the lord's steward still presides over it; and so the burgesses attempt to make their gild a general organ of self-government. It is a mistake, therefore, to make the municipal corporation of later days the outcome of a gild merchant. It is a mistake to make the grant of a gild merchant an act of incorporation, though, under the influence of the narrow theory put forward by Merewether and Stephens, English writers are now in the habit of assigning too late a date even for the definite and technical incorporation of the boroughs. But though we may not identify the gild merchant with the corporation or with the governing body, still we cannot regard it as a mere voluntary association of merchants. It is an organ of the borough, whose primary function is to maintain and protect that immunity from toll which is conceded by the borough charters. None but a gildsman may enjoy this immunity; within the borough those who are not gildsmen are excluded from trade or subjected to differential duties. Starting from this point, the gild claims to regulate trade. It further makes itself a board of arbitration, and in some cases it even assumes to act as a court of law, though in general it remains quite distinct from the regular borough courts. Then as to its subsequent history: the popular doctrine which tells of a prolonged struggle between the merchant gilds and the craft gilds, and the victory of the latter, is just the outcome of Dr Brentano's imagination—he has read foreign history into English history. Certainly there is often enough a struggle between rich and poor, between the majores and the minores; but hardly is there any trace of a struggle between various gilds, between merchants and craftsmen. Certainly it is no general truth that the government of the boroughs gradually becomes more democratic; on the contrary the general rule is that it steadily becomes more aristocratic.

In three very interesting appendixes the Scottish Gild Merchant, the Continental Gild Merchant, and the Affiliation of Medieval Boroughs are discussed. Upon the last of these three topics Dr Gross has spent a marvellous amount of industry to very good purpose.

His theories, if they be accepted—and for my own part I am inclined to accept many of them—will hardly make a revolution. This is in part due to the fact that Dr Stubbs, in his treatment of our boroughs, has been, if possible, more cautious and circumspect than he always is. In part it is due to the fact that Dr Gross has committed an offence, hideous in the eyes of the medieval gildsman, that of “forestalling”; he has forestalled himself. Already, for some time past, the doctrines of the Gilda Mercatoria have been slowly working their way into English literature; and it is pleasant to record in this place that “economic” historians have hitherto shown a juster appreciation of Dr Gross's German thesis than has been shown by the generality of “general” historians. In 1888 Mr Ashley spoke of the Göttingen tract as “the best work on its subject,” and more recently Dr Cunningham has described it as marking an epoch. Still, if Dr Gross has forestalled himself, few others have forestalled him. His work is sterling original work. Some, of course, of his conclusions should be vigorously discussed before they are accepted, but there is none of them that does not deserve discussion. Now and again he speaks too severely of his predecessors and fellow labourers. When he says that “Most English writers servilely follow Brentano,” we could wish that the adverb had not been written. Still there has of late been a great deal too little controversy about these things, and more than enough unquestioning acceptance of unproved assertions, in particular the unproved assertions of a writer of whom it is no blame to say that he had seen but a very small part of the evidence, a very small part indeed when compared with the documents which Dr Gross has read and pondered and published. Those who dissent from his doctrines, and who feel themselves aggrieved by his strictures, will have to admit that in combating him they borrow their weapons from the great store of arms that he has collected.

Will the day ever come when the boroughs of England will print their records? Nottingham has set a splendid example. Not every borough will be able to find so good an editor as Mr Stevenson; but still it is shame to our mayors and corporations that the work is not done. They should be peremptorily asked quo warranto they pretend to be proud of their towns; and on their failing to give a satisfactory answer, their franchises should be seized into the Queen's hand. Meanwhile our oldest England has to be thankful for what it can get from New England, the Essays on Anglo-Saxon Law, the Placita Anglo-Normannica, and last, but not least, the Gild Merchant.

[1]Economic Journal, June, 1891.