Page images
PDF
EPUB

its contribution as part of its manorial obligations 1. At Chester a knight's fee was held on condition of finding a horseman to do guard at the fairs 2. In ordinary times the peace of the fair was doubtless sufficiently well maintained, but there is abundant evidence to show how stubbornly men learnt in a rude age to respect the person of the trader and the peace of commercial life. The Statute of Northampton (1328) forbade men to ride armed in fairs and markets; how effective the act proved may be gauged from a petition in Chancery in the reign of Richard II. which tells how the market at Malton was invaded by an armed band, “arrayed with habergeons and palets, bows and arrows, swords and daggers "4. Complaint was also made in parliament of malefactors who disturbed the peace of the different marts and molested the travellers who resorted to them 5. In 1450 the chronicler records that the sheriffs and aldermen of London attended Bartholomew fair with three hundred men to give protection to the traders and country folk: "For the world was so strange that time, that no man might well ride nor go in no coast of this land without a strength of fellowship, but that he was robbed "". Nor was the mediaeval trader always averse from giving or receiving hard blows. Strife was easily stirred up between rival communities, and in 1260 a serious affray broke out at the fair of Northampton between the inhabitants of the town and the citizens of London".

It is important to observe that the competence of the

1 Law Merchant, i. 11, 12, 41, 75.

2 Cal. Inquisitions post mortem, iv. 179.

* Statutes, i. 258. For a complaint of its non-observance, see Patent Rolls, 1350-1354, P. 521.

4 Select Cases in Chancery, 84. St. Botolph's fair was attacked by bandits in 1285: D. Macpherson, Annals of Commerce (1805), i. 448. For Lydington fair, see Patent Rolls, 1364-1367, p. 361.

Rot. Parl. iii. 445 (1 Hen. IV.).

"Robert Bale's Chronicle", in Six Town Chronicles, ed. R. Flenley (1911), 135. In his famous panegyric of the English character, Fortescue boasts that "there were more men hanged in England in a year for robbery and manslaughter than there be hanged in France for such manner of crime in seven years. There is no man hanged in Scotland in seven years together for robbery. . . . But the Englishman is of another courage" Fortescue, The Governance of England (ed. 1885), 141.

7 De Antiquis Legibus Liber, 46.

court was not limited to the incidents which occurred within Distraint the fair itself, and the statement 1 that debtors were pro- debtors. upon tected at fair-times from distraint cannot be accepted. The language of the charters is certainly explicit, and would incline us to suppose that debtors enjoyed immunity from arrest as a matter of course. In reality, however, not only were debtors responsible at a fair for debts contracted elsewhere at other times and other places, but their liabilities were shared by the members of their community. At the fair of St. Ives in 1324 a plea was moved for the recovery of a debt incurred in 1321 at Cambridge 2. In 1265 a burgher of Lynn exported to Flanders a quantity of wool which was seized by the authorities, and five years later he sought redress from some Flemish merchants trading at the fair3. At another time the traders of Leicester were distrained for a debt contracted by one of their number at Leicester three years before; their defence was not, as might be expected, to call in question the legality of their attachment, but a denial that the debtor belonged to their community 4. Again, at St. Botolph's fair an attempt was made to arrest burgesses of Norwich for debts incurred by their fellow-townsmen 5. The practice of hearing pleas on matters outside the immediate province of the court easily lent itself to abuse, and tended to become oppressive. In the Good Parliament of 1376 the Commons complained that the bailiffs of fairs and markets attached men, denizens and aliens alike, in their courts for debts, trespasses and covenants done outside their jurisdiction and for things not relating to trade, in order to get the profits of the pleas". A century later a similar indictment was framed in the well-known statute of Edward IV. (1478), by which no steward was to hold plea on any action unless the plaintiff took oath that the contract was made "in the time and jurisdiction of

1 Bateson in Borough Customs, ii. p. xlvii: "There were times when ... those who owned debt in the borough would be admitted under special protection from distraint,-to wit, the fair-times-and these were always a close season for distress-taking ". 3 Ibid. i. 9.

2 Law Merchant, i. 107.

4 Select Pleas in Manorial Courts, i. 145; cf. also ibid. 152, 153, etc. The verdict went against them.

5 F. Blomefield, Norfolk (1806), iii. 51.

Rot. Parl. ii. 357 a.

Curtailment of piepowder juris

diction.

the fair". At the same time the proviso was inserted in charters that the steward appointed to hold the court should be "learned in the law of the land". But it is improbable that the law of 1478 succeeded in extirpating a practice so deeply rooted for centuries. A hundred years later it was still necessary in many towns to repeat the injunction that no one should be arrested or troubled in fair-time, unless for bargains contracted within the precincts of the fair 3.

While the jurisdiction of the court was extended in one direction, it was curtailed in another. Town charters, as we have seen, exempted burgesses from pleading without the borough walls, but their immunity did not extend to piepowder jurisdiction at fairs 4. On the other hand, some towns obtained the right to appoint their own burgesses as judges. The citizens of London in virtue of Henry III.'s charter (1268) claimed to have their own wardens at every fair in England 5-five at Boston, six or seven at Winchester to determine all pleas in which they were concerned, and they refused to answer to a suit in any court other than their own?. This claim brought them into conflict with the University of Cambridge (1419), when they objected to bring their weights before the chancellor at Stourbridge fair to be examined by his authority 8. Two or three Dorsetshire boroughs, Melcombe Regis, Lyme Regis and Nova Villa 9, acquired the same privilege, and their charters contained a clause that disputes at fairs affecting their burgesses were to be settled by their fellow-townsmen. Further, many of the London companies, the Embroiderers, the Horners, the Leathersellers, the Pewterers, the Skinners 10, exercised the right of search for false wares

1 Statutes, ii. 461. The act was made perpetual in 1 Ric. III. c. vi.
2 Patent Rolls, 1467-1477, P. 438.

3 G. Roberts, Lyme Regis (1834), 60 (1553); Borough Customs, i. 106 (Lancaster, 1562); Thompson, Boston, 344 (1576).

4 For a dispute over this point, see De Antiquis Legibus Liber, 48.

5 Birch, Charters of London, 38.

6 Letter Book D, 233; ibid. E, 239, 260.

E.g. Select Pleas in Manorial Courts, i. 155-156.

8 Letter Book I, 216; Cooper, Annals of Cambridge, i. 163.

• Charter Rolls, ii. 223, 282, 337.

10 (i.) Embroiderers: Rot. Parl. iv. 255 a. (ii.) Horners: Rot. Parl. v. 567 a. (iii.) Leathersellers: W. H. Black, History of the Leathersellers'

throughout all the fairs of England, while the Coverletmakers of York were empowered to make search in the fairs and markets north of Trent1. The Merchant Taylors attended the great " Cloth Fair " of Bartholomew with their standard, the "silver yard" measure, until its abolition in 18542. As a result disputes naturally arose between the wardens of the company and the lord of the fair as to the disposal of confiscated goods. In the case of the Leathersellers forfeitures were divided between the wardens and the owner of the franchise, the former receiving half "for their diligent labour "3; but the London Pewterers became embroiled with the University of Cambridge on account of their claims to a share in the profits of jurisdiction. Thus the lord of the fair was not completely master within his own house, and sometimes the whole basis of his authority was called in question. At Cambridge there were conflicts between the University and the town over the control of Stourbridge fair. The University had supervision of weights and measures, but the town alleged that it usurped jurisdiction "to the utter decay of the town and the fair"; the privy council intervened and attempted a compromise, but the dispute went on 5. At Oxford the University complained to Edward I. of the scarcity and unreasonable price of provisions, a matter of considerable moment to it, and in 1355, as a result of the massacre of St. Scholastica's Day, the control was taken out of the hands of the town 6. The University also claimed the assize of victuals at the fair of St. Frideswide, but without success, and the prior accused it of using violent means to prevent the fair being held". The control of Yarmouth fair was contested for centuries

Company (1871), 28. (iv.) Pewterers: C. Welch, History of the Pewterers' Company (1902), i. 43. (v.) Skinners: Riley, Memorials, 154.

1 Statutes, iii. 908.

2 W. Herbert, Twelve Great Livery Companies (1834), i. 47; C. M. Clode, Memorials of the Merchant Taylors (1875), 5, 193.

Black, Leathersellers' Company, 28.

4 Nichols, Bibliotheca Topographica Britannica, v. App. XXXII.-XXXV. • Cooper, Annals of Cambridge, i. 126, 332. The council intervened

in 1534; for subsequent details, see ibid. 372-373, 388-389, 393. Compare also Nichols, op. cit. v. App. X.

For Edward's letter fixing prices, see

• Ogle, Oxford Market, 47, 52, 54. ibid. App. B, 120. The fair had been given to the monastery by Henry I. : Parker, Early History of Oxford, 278.

7 Rot. Parl. iii. 176 b.

Law Merchant.

by the bailiffs of the town and the barons of the Cinque Ports; the latter 1 had played the chief part in establishing the herring fishery at Yarmouth, and apparently at first enjoyed the sole management of it. In the award of 1277 four sergeants of the Cinque Ports were to assist the bailiffs of the port in doing justice "according to law merchant"; before the end of Edward's reign there was renewed friction 2, which continued at intervals to the reign of Elizabeth 3.

The law by which the commercial life of the mediaeval trader was governed was not the common law of the land but the law merchant, aptly termed by Maitland 'the private international law of the Middle Ages '4, and identified by a fifteenth-century chancellor with the law of nature 5. This was a special body of legal usages and doctrines binding on merchants throughout Europe in their mercantile relations. While at the outset a uniform system of law was only gradually developed out of the conflicting practices of the different localities, there ultimately grew up a definite body of law distinct from common law and of international bearing. It had several well-defined features, and foremost among these the author of a treatise on the Lex Mercatoria places the summary nature of its procedure?. Again it was unwritten, customary law, created by the merchant “out of his own needs and his own views "8, though to some extent it may have come under the influence of statute law 9. In certain respects it openly diverged from the common law of the land and in some degree anticipated modern commercial practices. Especially characteristic was the payment of a God's penny to bind a purchase; once the parties to a contract had paid' earnest ' or assurance money, neither could

1 H. Swinden, Antiquities of Great Yarmouth (1772), 172.

2 Patent Rolls, 12721281, p. 203; ibid., 1301-1307, p. 329. See also S. Jeake, Charters of the Cinque Ports (1728), 13, 15.

3 E.g. Rot. Parl. i. 332 a. The historian of Yarmouth (Swinden, p. 212) remarks: "To enumerate all the quarrels . . . would be a task infinitely trifling, tedious and disagreeable ".

4 Select Pleas in Manorial Courts, i. 133.

Law Quarterly Review, xvii. 240.

• W. Mitchell, The Law Merchant (1904), 2, 6.

"Little Red Book of Bristol, i. 58.

[ocr errors]

8 Cf. St. Ives court rolls: The merchants of the fair . . . to whom judgments belong according to the law merchant": Law Merchant, i. 90. On the law of debt, see infra, p. 263.

« PreviousContinue »