The Influence and Development of English Gilds Part 12

Within the commercial cla.s.s the enforcement of the Gild regulations doubtless depended very largely on circ.u.mstances and individual temperament. Moreover their reiteration evidences their futility in attaining the objects they had in view. There must have been much greater freedom and elasticity of thought and action during the Middle Ages than is generally recognised.

It must be remembered too that there were important exceptions to the regulations of the Gilds. The king's servants, when exercising the royal privileges of purveyance and pre-emption, were naturally unrestricted. In Fair-time--and the Fairs were a very important feature in mediaeval life--there was unrestrained freedom of trade. But more important than these was another. It was quite possible for ungildated tradesmen to purchase temporary or partial exemption from the local restrictions.

It will be observed that the royal charters which authorise the Gilds and grant exclusive privileges of trading differ somewhat in later years from those of the earliest date. In the earliest grants the words simply allude to the Gild only. Henry II.'s Charter to Lincoln is "Sciatis me concessisse civibus meis Lincolniae ... gildam suam mercatoriam." There is no hint of any tradesmen external to the Gild. But early in the thirteenth century it becomes evident that such stringent exclusiveness could not be enforced. The charter which Henry III. granted to Shrewsbury in 1227 confirmed the Gild in the following terms:--"Concessimus etiam eisdem Burgensibus et heredibus eorum quod habeant Gildam Mercatoriam c.u.m Hansa et aliis consuetudinibus et libertatibus ad Gildam illam pertinentibus, et quod nullus qui non sit in Gilda ilia mercandisam aliquam faciat in predicto Burgo _nisi de voluntate eorundem Burgensium_." At about the same time the Earl of Chester and Huntingdon gave a charter to Chester forbidding trade in the town "nisi ipsi cives mei Cestrie et eorum heredes _vel per eorum gratum_." The phrase "nisi de voluntate eorundem Burgensium (or Civium)" now became usual in the charters. In those granted by Edward I. to the towns which he founded in Wales, and which may be looked upon in some measure as model town const.i.tutions, the provision appears in each.

Thus it may be said that by the end of the thirteenth century it had become customary for the town authorities to grant exemptions from the Gild restrictions by their own authority. They practically gave over to the Gilds the supervision of trade, but at the same time retained in their own hands the power of admitting traders without obliging them to join the mercantile fraternities.

This power of granting exemptions from the restrictions of the Gilds seems to have been exercised in various towns in different degrees. In some it extended no further than the permitting "foreigners" to come to casual markets on payment of a toll upon each occasion. In others however it was more largely and generally used, merchants being allowed to be resident and to trade continually and regularly by payment of an annual fine.

In the latter case the effect was to create two distinct cla.s.ses of traders within the town. The burgesses may be divided into two cla.s.ses, those of them who were gildsmen and those who were not. We now see that the tradesmen dwelling in the towns may similarly be divided into two cla.s.ses, (i) those who were free of the town or of one of the Gilds (or free both of the town and one of its Gilds), and (ii) those who were neither burgesses nor gildsmen. Thus another has been added to the cla.s.ses into which the inhabitants of towns are usually divided. Mention of these _unfree_ tradesmen is found in the records of many towns in England and Wales: in Norwich, Winchester, Lincoln, Leicester, Andover, Yarmouth, Canterbury, Henley-on-Thames, Malmesbury, Bury S. Edmunds, Totnes, Wigan, Chester, Shrewsbury, Worcester, Clun, Brecknock, Neath, Bishops' Castle, and others.

The designation of these unfree tradesmen varies. At Andover they were known as _custumarii_ (in opposition to the _hansarii_--the full members of the Gild). At Canterbury a similar body appears under the name of _intrants_. In Scotland and the north of England they were called _stallingers_. The most usual name for them is however _censer_, _chencer_, _tenser_, and variations of these.

_Censer_ is apparently the name applied to one who pays a _cense_ or _cess_. In Domesday mention is made of _censarius_--"Ibi sunt nunc 14 censarii habentes septem carucatas"--and the _censarius_ is described as "qui terram ad censum annuum tenet." The connection of the word is here purely territorial. It becomes more personal later in the history as is seen in the "Compotus Civitatis Wyntoniae" of the third year of Edward I., which contains the following entry:--"Et de xliiij_s._ ij_d._ _ob._ de hominibus habitacionibus in civitate Wynton' qui non sunt de libertate, qui dic.u.n.tur Censarii, per idem tempus." Here the _censarii_ are evidently considered in their capacity not as possible landowners, but solely as tradesmen. The _census_ has changed from the land rent of Domesday to a distinctly personal payment.

A somewhat different cla.s.s from the _censarii_ of Winchester are mentioned in the statute 27 Henry VIII., cap. 7. From the preamble we can form a good idea of the lawlessness and confusion which prevailed on the borders of Wales at that period. It is related that in the Marches, where thick forests frequently fringe the roads, "certain unreasonable Customs and Exactions have been of long time unlawfully exacted and used, contrary both to the law of G.o.d and man, to the express wrong and great impoverishment of divers of the king's true subjects." The most crying of these evils was that the foresters were accustomed to plunder all pa.s.sing along the roads (probably under the plea of taking toll), unless they bore "a Token delivered to them by the chief Foresters ... or else were yearly Tributors or Chensers." The statute offers no explanation of these terms, but it is most likely they applied to persons paying an annual sum, either to the king or the Lords Marchers, of the nature of Chief Rent, especially as Cowell, in giving his explanation of the word _chenser_ which will be noticed later, refers to this Act of Henry VIII. in support of his definition. If this be so we see that although the signification of the term had been extended so as to include distinctly personal and commercial tolls, it had, in some districts, also retained its original connection with land. This, censor, censer, gensor, chencer, and other variations, is the most usual form of the word, but occasionally it is found as tenser, tensor, tensur, and tensure. Tenser and tensor are used at Shrewsbury; at Worcester the same word appears as tensure or tensar (_English Gilds_, pp.

382, 394).

It is difficult to say whether or no _tenser_ is a confusion of _censer_.

Etymologically the words seem akin, _cense_ being a tax or toll (cess), and _tensare_ meaning to lay under toll or tribute. In the Iter of 1164 enquiry is directed to be made "de prisis et tenseriis omnium ballivorum domini regis ... et quare prisae illae captae fuerint, et per quem" etc.

Another derivation of _tenser_ has been given. Owen and Blakeway (Vol. ii.

p. 525) explain it to be a corruption of "tenancier," and apparently intend to imply that these non-gildated traders were considered as holding directly of the king. This view receives some confirmation from Cowell's definition of the "censure" and "censers" of Cornwall. He says (_A Law Dictionary: or the Interpreter_ etc., ed. 1727) "Censure, or _Custuma vocata_ censure, (from the Latin _Census_, which Hesychius expounds to be a kind of personal money, paid for every Poll) is, in divers Manors in _Cornwall_ and _Devon_, the calling of all Resiants therein above the age of sixteen, to swear Fealty to the Lord, to pay _ij{d} per Poll, and j{d} per an._ ever after; as _cert-money_ or _Common Fine_; and these thus sworn, are called _Censers_." "Chensers," he says again, "are such as pay Tribute or _cense_, Chief-rent or Quit-rent, for so the French _censier_ signifies." Whether or no we receive Owen and Blakeway's derivation of the word from _tenancier_, even with the support of Cowell's "censers" of Cornwall, we may press the latter authority into service in showing that the signification of _censer_ and _tenser_, however different the two words might be in origin, became very similar in actual use.

The fines which the tensers or censers paid were imposed in the Court Leet. On the Court Leet Rolls at Shrewsbury are entered lists of names and fines headed "Nomina eorum qui merchandizant infra villam Salopie et Suburbia eiusdem, et non Burgenses, ergo sunt in misericordia." In the first year of the reign of Henry IV. (A.D. 1399) it was ordered that these fines should be levied before the feast of S. Katharine (November 25) in each year. The Court Leet also decided the amount of the fines, but in later times when the select body of magnates had deprived the popular courts of so many of their powers and privileges we find that the apportioning of the tensers' fines had also pa.s.sed to the close corporation. In 1519 the corporation fixed the tolls at 6_d._ quarterly.

The statute 35 Henry VIII., cap. 18, gave the control of the unfree tradesmen in Canterbury to the Mayor and Aldermen of the City. "No foreigner, not being free of the said City, shall buy or sell any Merchandize (saving Victual) to another foreigner; nor shall keep any shop nor use any mystery within the said City or the liberties thereof, without the License of the Mayor and Aldermen, or the major part of them, in writing under their Seal." At Winchester in 1650 the rates were revised by the Mayor and Aldermen. The highest limit was fixed at 5, but the fees actually paid were generally sums varying from 6_d._ to 3/4 only (Gross, II. 264).

When such a privilege was exercised by a select body it was certain to give rise to abuses. Such was found to be the case in early years when the fines were imposed by an authority other than the general a.s.sembly of burgesses. In the county court held at Lincoln in 1272 it was alleged that the late Mayor had taken pledges from the burgesses of Grimsby unjustly under the plea of exacting _gildwite_ (as the fine or toll was sometimes called). We learn that at Shrewsbury in 1449-50 "this yeare the Burgesses and Tenssaars ... did varye." What the cause of contention was, or how the dispute was settled, we do not know, but it could hardly arise over anything other than the question concerning the tolls to be paid by the tensers.

In some towns special civic officials were appointed to supervise the tensers. At Chester the "leave-lookers" were among the most important of the borough officers. The word _leve_ or _leave_ has very much the same signification as the word _cense_ or cess. It is the English "levy," and was the fee or toll for permission to trade. The "leve-lookers" were the officials who exacted the levy or toll which unfree tradesmen were obliged to pay. At Chester they were "appointed annually by the Mayor for the purpose of collecting the duty of 2_s._ 6_d._ claimed by the corporation to be levied yearly upon all non-freemen who exercise any trade within the liberties of the City." Their duties are described as having been "to give Licence and compound with any that came either to buy or sell within these liberties contrary to our grants;" "if any did dwell within the city that were not free, if they did ever buy or sell within the liberties, they did likewise compound with the _Custos_ and _Mercator_ [Custos Gilde Mercatorie] by the year ... the Leave-lookers do gather two pence halfpenny upon the pound, of all Wares sold by Forraigners within the City." (Gross, II. 42.) The same name is found at Wigan, where the duty of the "gate-waiters or leave-lookers" was to see that all "foreigners" paid their fines for licence to reside and trade in the town. (Sinclair, _Wigan_, _pa.s.sim_.)

It is not easy to define the exact status of the tensers. They were certainly considered as an inferior body of burgesses, and might comprise three cla.s.ses. Firstly, those not willing or not able to enter one of the gilds; secondly, traders waiting to be admitted burgesses; thirdly ex-burgesses fallen from the higher state through misfortune.

1. As an inferior cla.s.s of tradesmen they could only purchase their stock from townsmen (Gross, II. 177); they were incapable of bearing munic.i.p.al office (_Ibid._ II. 190) and they were liable to be called upon "to be contributorie to alle the comone charges of the Citie, whan it falleth"

(_Ibid._ II. 190). In the general course of trade but little difference might be perceptible between the tensers and the Gildsmen, but attempts to fuse or to confuse the two cla.s.ses were jealously resented whenever they were discovered. Naturally these attempts to minimise the distinctions between Gildsmen and non-gildsmen were generally prompted, in later times, by political reasons. Only freemen of the town and members of the companies had the privilege of voting in Parliamentary elections, and great was the desire to obtain a position on the list of voters. In "An Account of the Poll for Members of Parliament for the Borough of Shrewsbury taken June 29 and 30, 1747" etc., information is supplied concerning certain townsmen who had claimed to be freemen but were rejected on account of having proved themselves to be otherwise by payment, in times past, of the tensers' fines. Of John Bromhall, baker, we read "It was objected to his vote that he was no Burgess, in support of which it was proved that he had paid Tensership several years, and that his ffather had paid toll. This Tensership is a ffine or acknowledgement commonly paid by persons following trade in the town that are no Burgesses, but it being insisted that it was paid through ignorance or mistake, his ffather was called and admitted to prove that he had voted at a former election for this Borough, whereupon the Mayor admitted his vote, but upon examining a copy of the Poll for the year 1676 it appears that all the ffamily of this Bromhall were upon a scrutiny rejected as not Burgesses."

2. They comprised also among their number many tradesmen waiting to be made burgesses. We learn this distinctly from an ordinance of the corporation of Leicester pa.s.sed in the year 1467, to the effect that every person opening a shop in the town should pay yearly 3/4 _till he enter into the Chapman Gild_. (Nichols, _County of Leicester_, I. 376.) There were several causes which would account for the existence of this cla.s.s.

The towns grew increasingly jealous of extending their privileges, as these became valuable. The Gildsmen would also desire to learn somewhat of the character of the new-comer before admitting him to full membership with themselves; while on the other hand the latter would wish to see whether the trade of the town were sufficiently prosperous to warrant him settling in the borough permanently. This cause would specially operate in the case of the Welsh boroughs which grew up after Edward I.'s conquest of the princ.i.p.ality.

The townsmen however did not approve of the growth of a wealthy cla.s.s of traders, sharing almost equal commercial privileges with themselves and at the same time not liable to the burdens which were the necessary accompaniment of those privileges. They therefore made it inc.u.mbent upon every tenser who evidently was sufficiently satisfied with the trade of the town to make the borough his permanent home, and who had attained to a fair competency, that he should throw in his lot fully and completely with them. He must become in fact a full burgess. This is carefully explained in the _Ordinances of the City of Worcester_--regulations concerning the trade of the town dating from the reign of Edward IV. No. XLVII. says "Also, that euery Tensure be sett a resonable fyne, aft{r} the discression of the Aldermen, and that euery tensure that hath ben w{t}yn the cyte a yere or more dwellynge, and hath sufficiaunt to the valo{r} of XL_s._ or more, be warned to be made citezen, by resonable tyme to hym lymitted, and iff he refuse that, that he shalle yerly pay to the comyn cofre XL_d._, ouer that summe that he shalle yerly pay to the Baillies or any other officers; and so yerly to contynue tylle he be made citezen" (_English Gilds_, p. 394).

3. There were, thirdly, those who had fallen from a higher state through misfortune or other cause. We read of individuals surrendering their freedom and paying the tenser's fine. "He withdrew and surrendered the freedom to the Commonalty, and now pays toll" (Gross, II. 240).

As regarded their dealings other than commercial in nature the tendency was to a.s.similate the tensers and the townsmen. In a grant made to Shrewsbury by Henry VI. and confirmed by Parliament in 1445 the same privileges are extended to the tensers as are possessed by the burgesses in the matter of exemption from the necessity of finding bail in certain cases. Similarly at Worcester the "tensures" shared with the citizens the right to the a.s.sistance of the afferors in cases of wrongful or excessive amercement. (_English Gilds_, 394.)

Nevertheless where commercial privileges were at stake the distinction was rigidly preserved by every means in the possession of the townsmen. The tenser's fine was maintained up to the present century, though not without considerable difficulty. On every hand there were evidences that the companies had outlived their usefulness. Friction was everywhere injuring the social machine. Compet.i.tion and individualism had taken the place of custom and co-operation. At Winchester there were grievous complaints of intruders who did "use Arts, Trades, Misteries and manual occupations ...

without making any agreement or composition for soe doing, contrary to the said antient usage and custome, tending to the utter undoeing of the freemen ... and decay of the same City." Everywhere the records of the companies detail little else than summonses to intruders to take up their freedom and notices of actions at law against them for refusing to do so.

General demoralisation prevailed, and the existence of a cla.s.s holding such an equivocal position as that of the unfree tradesmen did not help to mend matters. The case of John Bromhall which has been mentioned above ill.u.s.trates the general looseness which prevailed in all departments of munic.i.p.al administration. A ludicrous incident which happened at Shrewsbury in connection with the tensers in later years is recorded by Gough in his _Antiquities of Myddle_, published in 1834. "This Richard Muckleston was of a bold and daring spirit, and could not brook an injury offered to him. He commenced a suit against the town of Shrewsbury for exacting an imposition on him which they call tentorshipp, and did endeavor to make void their charter, but they gave him his burgess-ship to be quiet."

The companies were preserved from repet.i.tions of this strange indignity by the pa.s.sing of the Munic.i.p.al Corporations Act of 1835, in consequence of which there could no longer be any invidious distinction between freemen and non-freemen, hansarii and custumarii, gildsmen and tensers.

APPENDIX II.

AUTHORITIES CITED.

Abram, W. A.--Memorials of the Preston Guilds.

An Account of the Poll for Members of Parliament for the Borough of Shrewsbury etc. (1747).

Boeckh, A.--Public Economy of Athens, translated by George Cornewall Lewis (1842).

Brentano, Lujo--On the history and development of Gilds and Origin of Trade-Unions.

"Britannia Languens, or a discourse of trade." (1680.)

Bryce, J.--The Holy Roman Empire (1887).

Cowell--A Law Dictionary: or the Interpreter etc. (1727).

Cunningham, W.--The Growth of English Industry and Commerce (1885).

Dugdale, W.--Antiquities of Warwickshire.

Ebner, Dr Adalbert--Die klosterlichen Gebets-Verbruderungen bis zum Ausgange des Karolingischen Zeitalters (1891).

Eden, Sir F. M.--The State of the Poor.

Eyton, W.--Antiquities of Shropshire.

Farquhar--The Recruiting Officer.

Foucart--Les a.s.sociations religieuses chez les Grecs.

Foxwell, H. S.--Irregularity of Employment and Fluctuations of Prices (1886).

Froude, J. A.--History of England from the fall of Wolsey to the death of Elizabeth (12 vols., 1862-70).

Gneist--Geschichte des Self-Government in England.

Gneist--Das heutige Englische Verfa.s.sungs- und Verwaltungsrecht.

Gough--The Antiquities of Myddle (1834).

Green, J. R.--A Short History of the English People (1886).

Gross, Charles--The Gild Merchant (1891).