Guilds and Guild Law

Just as the urban commune often started as a sworn "conspiracy for peace," so within the commune the guilds were sworn brotherhoods whose members were bound by their oaths to protect and serve one another.

The guild system of the eleventh- and twelfth-century towns may have derived ultimately from the early Germanic guild, which had been a military and religious brotherhood "in which the dead entered the living by a kind of demonic possession." ⁴⁸ The later guilds also owed much to the Peace of God movement of the tenth and eleventh centuries, which operated in part through sworn brotherhoods, often called "peace

390- guilds." These served as mutual protective associations and as volunteer law enforcement agencies. With the rise of cities in the last decades of the eleventh century, merchant guilds, social guilds, craft guilds, and other guilds of a secular nature became widespread; yet these, too, retained strong religious features, generally taking it upon themselves to provide for the spiritual, and not only the material, aspects of their members' lives. Thus the guild would typically seek to maintain high moral standards, punishing its members for blasphemy, gambling, usury, and the like. It would hold religious ceremonies for its own patron saint as well as that of the town. Guild statutes often began b y enumerating the alms the guild would give and the works of mercy it would perform. The cele bration of feast days was an important part of the life of the guild.

The guilds, where they existed -- some towns, notably Paris, had no guilds -- were also lawmaking bodies. Each of the various guilds of merchants and artisans within a city or town had its own ordinances. The ordinances varied in content, depending on the type of guild, whether merchant, artisan, professional, bankers', seamen's, or other type; if artisan, whether of producers of wool, silk, leather, silver, or some other product; if professional, whether of judges, notaries, doctors, or some other profession.

Within these classifications there were numerous forms of association, reflected in the large variety of names given to what is translated here simply as guild: ars, universitas, corporatio, misterium, schola, colleguim, paraticum, curia, ordo, matricola, fraglia, and, for the merchant guild, hansa or mercandancia. Nevertheless, the ordinances of all the dozens of guilds that might exist within a city had many features in common, and these common features existed throughout the West. Thus all guilds were fraternal associations (in which incidentally, women were normally included, for those trades in which they engaged), imposing obligations on their members to help their fellow members who were sick or disabled or poor or in legal trouble, to provide for burial of the dead and for offerings for their souls, as well as to found schools for the children of their members, to build chapels, produce religious dramas, and provide occasions for hospitality and conviviality. The members periodically swore oaths of fraternity and pledged never to abandon the guild but to observe its statutes faithfully. ⁴⁹The guilds were also monopolistic economic associations whose ordinances regulated such matters as conditions of apprenticeship and membership, calendars of workdays and holidays, standards of quality of work, minimum prices, distances between shops, conditions of selling so as to limit competition within the guild and to equalize sales, prohibitions against selling on credit except within the guild, restrictions upon imports, restrictions upon immigration, and other protectionist measures. Since slavery had been virtually abolished in the cities, labor

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was based on contract; however, the terms of labor contracts were tightly regulated by guild and urban customs and ordinances on the basis of types of jobs (officia). To strike was a grave crime. ⁵⁰The form of government of the guild was typically modeled after the form of government of the city or town.

At its head were usually two or more representatives, often called consuls, elected annually or sometimes semiannually, usually without participation of the city officers. There was usually a general assembly of the guild with deliberative powers, as well as a small council to back up the consuls or other chief executives. The officers of the guild often formed an arbitration tribunal before which the members were expected to appear before carrying their disputes into the courts.

Lawyers (notaries) often played an important role not only in serving individual companies within the guilds, drawing up deeds and contracts and (as advocates) acting as representatives in judicial and other adversary proceedings, but also in helping directly to govern the guilds as well as the municipal government. Notaries would often accompany municipal officers (merchant consuls, podestas, mayors, Burgermeister) when they went out to decide disputes. They would draw up official documents, compose local statutes, arrange elections, write letters to neighboring cities or lords, and interpret municipal charters. From early stages of the development of cities as autonomous polities, lawyers played an important role in their administration.

In many cities of Europe the leaders of the guilds became the magistrates of the communes. A law of Milan of 1154 authorized the appointment of "consuls of merchants" to perform judicial functions, among others; the courts of the merchant consuls in the cities of northern Italy gradually extended their jurisdiction over all mercantile cases within the city. Other European cities adopted the Italian institution of the merchant consul, or else they developed similar institutions. In England, Wales, and Ireland, the mayors of the fourteen staple towns were elected "by the commonalty of merchants" for a one-year term; like the Italian merchant consuls, English mayors performed not only executive functions but also judicial functions, according to the universal law merchant. Thus mercantile law and urban law overlapped each other, in England as elsewhere in the West.

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Source: Berman H.J.. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass. : Harvard University Press,1983. вЂ” 657 p.. 1983

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