Now! Then! York’s medieval Company of Merchant Adventurers asks a court to prevent John Harwood, a Petergate druggist, from selling foreign goods without membership or a licence

11 April 1827: York’s medieval Company of Merchant Adventurers asks a court to prevent John Harwood, a Petergate druggist, from selling foreign goods without membership or a licence

York Courant. 1918 (1827/04/17). The Trial. In Maud Sellers, The York Mercers and Merchant Adventurers 1356-1917. Durham: Surtees Society. Get it:

Excerpt

The declaration stated that there was in the city of York, and had been from time immemorial, a body corporate, known by the name of the Company of Merchants Adventurers, and that no person had a right to carry on any traffic in foreign wares, or to exercise the trade of a grocer without becoming free brother of that company, or the widow of a free brother, or without their licence; and that the defendant did carry on the trade of a grocer, without the licence of the said company. There were other counts, charging him with carrying on the trade of a druggist; and others, charging him with carrying on that of an apothecary. Mr Justice Bayley rose and, addressing himself to Mr Scarlett for the Company, said, “The language of the charter is quite inconsistent with the custom you set out. It is a charter merely of regulations against strangers intromitting, without being subject to the control of the fellowship. It is not a charter which compels every one to become free. You have proved no custom from time immemorial.” Mr Scarlett submitted that subsequent to the date of the charter down to the present time he could prove the custom of fines being paid, licences taken out, etc. He hoped his Lordship would conceive that would be sufficient to establish his case. Mr Justice Bayley: “Certainly not. You claim by ancient custom, and the language of the charter is utterly inconsistent with the custom claimed. You are bound to prove a custom from time immemorial.” [Non-suited.]

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To facilitate reading, the spelling and punctuation of elderly excerpts have generally been modernised, and distracting excision scars concealed. My selections, translations, and editions are copyright.

Abbreviations

Comment

The hearing date and summary are given in the Herald (York Herald 1827/04/14).

The opening exchange is good:

Mr Alderson [for the Company] stated, that there was in the city of York and had been from time immemorial, a body corporate, known by the name of the Company of Merchants Adventurers, and that no person had a right to carry on any traffic in foreign wares, or to exercise the trade of a grocer without becoming free brother of that company, or the widow of a free brother; or without their licence; and that the defendant did carry on the trade of a grocer, without the licence of the said company. There were other counts, charging him with carrying on the trade of a druggist; and others, charging him with carrying on that of an apothecary.

Mr Justice Bayley. — Then a single woman, or a free sister, cannot carry on trade at all?

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Original

Merchants’ Company of York v. Harwood. — This was an action of great importance to traders in this city. It was brought by the plaintiffs against Mr Harwood, druggist in Petergate, for selling articles of foreign produce, without being a member of the Merchants’ Company, and without a license from the company to deal in those articles.

Mr Alderson, in opening the pleadings, said the plaintiffs were the Governor and Assistants and Company of Merchants Adventurers of the City of York; and the defendant was John Harwood of the same city. The declaration stated, that there was in the city of York and had been from time immemorial, a body corporate, known by the name of the Company of Merchants Adventurers, and that no person had a right to carry on any traffic in foreign wares, or to exercise the trade of a grocer without becoming free brother of that company, or the widow of a free brother; or without their license; and that the defendant did carry on the trade of a grocer, without the license of the said company. There were other counts, charging him with carrying on the trade of a druggist; and others, charging him with carrying on that of an apothecary. The plaintiff pleaded the general issue.

Mr Justice Bayley. — Then a single woman, or a free sister, cannot carry on trade at all?

Mr Scarlett stated the case on the part of the plaintiffs. This action was brought by perhaps one of the oldest corporations in the kingdom, for a violation of its privileges. Chartered bodies, and privileged communities, were at one time deemed necessary for trade, and for the public interest in general. This was at a time when the liberties of the people were entirely at the discretion of the Crown. They then formed barriers to that thraldom — to that despotism under which the land was overshadowed. He doubted not but the liberties we now enjoy were to be traced originally to the existence of those corporations. That they infused into the mind that spirit of liberty which was now so generally felt. He mentioned these things because many were apt to look back upon the formation of these companies with different sentiments. — Human nature often pushes down the stool by which it had been enabled to rise. If he (Mr S.) were asked, as a political economist, if the existence of such corporations were conducive to the furtherance of commerce, he should reply, No; but if he were asked, if they had that effect when first instituted, he should as decidedly and firmly say, Yes. The question for the jury to try was not the propriety of the existence of a company, but whether it legally existed or not. — If it legally did exist, its interests were as much protected by the law of the land as any individual’s private rights. There were many towns, which had corporations, where no stranger could carry on business without being free of the same; and in some few towns in England, besides the corporation of the town, there were chartered bodies, called guilds, the most ancient of which was the city of York. There were similar ones in London, for although the city of London had a charter, there were several subordinate corporations, as, for instance, that of the fishmongers, the stationers, the goldsmiths, and the merchant tailors. Before a man can carry on any one of these trades, he must be free of the company, as well as free of the cor poration of the city of London. The guild of York, which is that of the Merchant Adventurers, is of a date earlier than that of the corporation of the city. They hold a charter of the 23d of Queen Elizabeth, but can trace back their existence as a guild to the time of King Stephen. The original charter had doubtless been lost in the remoteness of its antiquity… . The Guild of York was first called the Mercers’ Company and at that period of time mercers meant merchants; they sent ships and corresponded abroad, and no one could carry on the business of a merchant without belonging to the com pany. This had been the custom from time immemorial and this company had the exclusive right of trading in articles from foreign parts. He should show the existence of the company in the year 1140, the fifth year of the reign of King Stephen by a document from the Court of Exchequer, of a fine being paid on the appointment of an alderman. He should further produce a grant from John the 1 st , in the year 1199, which was a general one to the citizens, in which were mentioned the Hanse Towns, in Normandy, of which the guild was free; and further, a grant of confirmation from Henry the 3d, in which amongst others, John’s grant is mentioned, and the ” privileges of the Guild perpetuated as firmly and as strongly as in the reign of our great grandfather, Richard.” … He should prove that from the very earliest times, sums of money had been paid and were continued down to this hour for the freedom of the company; that the company formerly received for the freightage of ships; that they had every indication of a corporation by having a seal, &c; and that they, at a particular period, founded a hospital, and endowed a chaplain, which hospital was taken possession of by the Crown, during the reign of Henry the 8th, when the monasteries in the land were demolished. They interfered not with persons selling articles of British manufacture or the produce of British soil, but when they found persons dealing in articles of foreign produce, they applied to them to become members of the company. If they could not prove that they had this exclusive privilege, they must cease to exist. Grocers selling tea, spices, and sugar, always became members of the company; druggists, as they are now called, but when trading wholesale, called drysalters, dealing in dye woods, such as indigo, become members of the company; and apothecaries, who alone formerly sold drugs, took up their freedom of the Guild. There were certainly exceptions, for whenever a person, free of the company, had a partner not free, the firm was allowed to carry on business, and the widow of a freeman of the company could continue the business. The mercer, who dealt in foreign silks, when allowed by the law of the land to do so, always belonged to the company. The sons of freemen and persons having served apprenticeship to a free man, were admitted, on payment of a small fine, and to a stranger it varied, but never exceded 24£ or 25£. This applied to all parts of the city, except the Peter Liberty, every foot of ground of which appeared to be sacred, because it belonged to the church. The defendant, Mr Harwood, was a druggist, and sold drugs, spices, and other commodities of foreign produce without being free of the company, which they conceived he had no right to do. He should prove that he had received notice to take up his freedom, that he had not done so, and that therefore he was liable to this action. Having proved these facts he doubted not but he should have the verdict of the jury.

Mr Henry Wm. Hewlett … likewise produced from the Charter Rolls a charter of confirmation of 36 Henry 3d, “to the citizens of York.”

Mr Pollock. — The defendant is a citizen, my Lord.

Mr Ward of Fossgate, druggist, who had been secretary to the company 30 years, produced several ancient documents from the chest of the company, showing acts of the brethren as far back as the reign of Henry the 6th, and also records of the audits of their accounts.

Mr Pollock. — Are those accounts signed?

No.

Are they ticked off?

No.

Mr Pollock.— My Lord, I object to their being put in as evidence.

Mr Justice Bayley. — I think they ought not to be admitted.

Mr Scarlett. — These accounts are those of the master and constable, and though they are not signed, their names are at the head; and the wardens, by the books, appear to have admitted their accuracy.

Mr Justice Bayley. — By the rule of evidence, Mr Scarlett you know, they must be signed, before they can be admitted.

Mr Scarlett thought, that in a case recently tried, the books of the corporation of Cambridge were received under similar circumstances. He meant in the Earl of Northampton’s case.

Mr Justice Bayley. — Were they not the Chamberlain’s books?

Mr Scarlett. — No, my Lord, they were the books of the Corporation.

Mr Justice Bayley. — I think they were not received. However they were not legal evidence.

Mr Hewlett. — The writing of the accounts is in Latin, and appears to be the writing of that day

The accounts were therefore not put in evidence. Several indentures of the demise of houses to various persons, by the company, under their common seal, from 17th of Henry 6th, to the 11th Charles 1st, were then read. The Charter of 23d of Elizabeth was next put in and read by Mr Hewlett (see pp. 244-254)….

Mr Justice Bayley rose and addressing himself to Mr Scarlett, said, “The language of the charter is quite inconsistent with the custom you set out. It is a charter merely of regulations against strangers intromitting, without being subject to the control of the fellowship. It is not a charter which compels every one to become free. You have proved no custom from time immemorial, which you must prove.

Mr Pollock. — I certainly did not expect that charter so early, but intended to have produced it myself. Mr Scarlett submitted, that subsequent to the date of the charter down to the present time, he could prove the custom of fines being paid, licenses taken out, &c. He hoped his Lordship would conceive that would be sufficient to establish his case.

Mr Justice Bayley. — Certainly not. You claim by ancient custom, and the language of the charter is utterly inconsistent with the custom claimed. You are bound to prove a custom from time immemorial.

The plaintiffs were non-suited.

Counsel for the plaintiffs — Messrs. Scarlett, Brougham and Alderson. Attorney, Mr Agar.

For the defendant — Messrs. Pollock, Holt and Starkie. Attornies, Messrs. Ord and Pearson.

1781 words.