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was made to answer for the default of a fellow-burgess would bring pressure to bear upon the recalcitrant debtor to ensure that the debt were discharged and his own losses refunded. The procedure ordinarily adopted was for the authorities of the town, to which the creditor belonged, to approach the debtor's court with a request for the payment of the debt 1; if justice were not done, they proceeded after repeated warnings to take action by seizing the goods of any trader of the offending community who repaired to their midst.

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The custom by which the wayfarer passing through a Immunity town could be called to account for the acts of others was distraint. not only extremely injurious, but also restricted the freedom of commercial intercourse. This is shown by the complaint of the men of Hereford that, owing to "frequent wrongful arrests for debt" in Wales, "they are compelled to cease passing through Wales for the practising their occupation of merchandise "2. It rendered merchants exposed at any moment to the dangers of arbitrary arrest or seizure of their goods for debts of which they were neither pledges nor sureties, and active steps were therefore taken to obtain immunity from wrongful distraint. In some towns the burgesses made the payment of the foreigner's debt a communal liability, meeting it out of the common funds, and afterwards recovering it with interest from the debtor or taking his house into their hands 3. In others the citizens endeavoured to protect themselves by compelling the debtor to repair the mischief which his fellow-burgesses had suffered from his default. At Yarmouth, if a debtor refused satisfaction to a neighbour distrained on his account, he "was cast out of the community "4, and at Leicester the bailiffs were "to close his house with bolts and forbid him ingress "5. The men of Hereford held that a burgess ought not to bring trouble upon his fellow-citizens by failure to meet his obligations, and where he had neither real nor personal

1 Sharpe, Cal. of Letters, passim.

Hist. MSS. Comm. 13th Rep. App. iv. 287. For complaints in the Hundred Rolls against the practice, see (e.g.) Lord J. Hervey, Hundred Rolls, Lothingland (Suffolk), 71, and J. P. Yeatman, Feudal History of Derbyshire (1889), ii. sect. iii. 66. 3 Borough Custumals, i. 126-127. 5 Records of Leicester, i. 114.

4 Ibid. i. 117.

property to discharge his liabilities, they inflicted the penalty of imprisonment: "for we say that all of us are bound to love one another and in all things to correct each other by good means, and in no wise should we cause or drive any to suffer mischief". But in the main towns sought to secure by charter protection from reprisals in other towns. Bristol (1188), Dublin (1192), Barnstaple (1200), Marlborough (1204), and Winchester (1215), gained the concession that no burgess should be distrained for any debt unless he were himself the debtor or a surety of the debtor 2. At Dunwich (1205), on the other hand, the concession was modified; the burgesses were not to be distrained for any debt for which they were not sureties or principal debtors, unless their community had failed in doing justice. This conditional proviso was to be the keynote of Henry III.'s municipal policy. During the first forty years of his reign the towns to all appearance made no constitutional advance and failed to extend their immunities. In 1255, however, Henry accepted the crown of Sicily for his son, and, helplessly involved in continental entanglements, was driven to every possible fiscal device for raising supplies of money. The king's extremity proved the opportunity of the municipalities, and on this ground we may doubtless explain the appearance of a large number of borough charters at this particular juncture. In 1255 Norwich, Nottingham, Northampton, Lincoln and Lynn, in 1256 York, Scarborough, Hereford, Shrewsbury, Southampton, Cambridge, Canterbury and Bridgnorth, in 1257 Oxford, Stamford and Guildford, in 1259 Retford, in 1260 Berwick, and in 1263 Worcester, secured the partial immunity from distraint which Dunwich had acquired half a century earlier 5. The burgesses were

53.

1 Borough Custumals, i. 119. For Grimsby, cf. Charter Rolls, ii. 15. 2 Ballard, Borough Charters, 165-166; Gilbert, Documents of Ireland, On the subject of immunity at fairs, see supra, p. 227.

8 Ballard, Borough Charters, 165.

Waterford, however, secured complete immunity in 1232: Charter Rolls, i. 158.

Ibid. vol. i. 442 (Lincoln), 443 (Northampton), 444 (Lynn), 447 (Norwich), 448 (Nottingham), 456 (Guildford), 471 (Oxford), 472 (Stamford); ibid. vol. ii. 24 (Retford), 32 (Berwick), 48 (Worcester); ibid. vol. iii. 186 (York), 190 (Scarborough), 239 (Hereford), 426 (Shrewsbury). Bridgnorth: R. W. Eyton, Antiquities of Shropshire (1854), i. 307.

not to be arrested for any debt of which they were neither sureties nor principal debtors, unless the debtors of their community were solvent and their court had made default in justice to the creditors. About the same time also, and a few years later, the privilege was extended at the instance of the king's brother Richard, king of the Romans, to alien merchants of certain foreign towns with the same conditional proviso limiting its operation. The traders of St. Omer, Groningen, Ghent, Douai and Lübeck, among others, were exempted from arrest, unless perchance the debtors themselves be of their commune and jurisdiction having the wherewithal to pay their debts "1. Only in the closing years of Henry's reign, under the influence of Prince Edward 2, did a more enlightened municipal policy begin to prevail. In 1268 Northampton, and in 1272 Nottingham and Beverley3, secured a confirmation of their charters with the proviso omitted: the burgesses of Nottingham "shall have for ever throughout our whole land and jurisdiction this liberty, to wit, that they and their goods found in whatsoever place in our jurisdiction shall not be arrested for any debt of which they are not the pledges or principal debtors".

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law.

Under Edward I. commercial practice underwent con- Innovasiderable modification, and the procedure for the recovery introduced of debts entered on a fresh stage of its history. The first by statute Statute of Westminster (1275) provided "that in no city, borough, town, market, or fair, there be no foreign person which is of this realm distrained for any debt wherefore he is not debtor or pledge "4. This clause also appears

Southampton: H. W. Gidden, Charters of Southampton (1909), i. 8. Cambridge: Cambridge Borough Charters, 15. Canterbury: Hist. MSS. Comm. 9th Rep. part i. App. 166. But Leicester did not gain this partial immunity till 1269: Records of Leicester, i. 56.

1 Charter Rolls, i. 441 (St. Omer, 1255), ii. 10 (Groningen, 1258), 22 (Ghent, 1259), 40 (Aardenburg, 1262), 133 (Abbeville, 1269). Douai (1260): Letter Book B, 233. Lübeck (1266): Patent Rolls, 1266-1272, p. 20.

2 The proviso had been omitted by Edward in his charter to Carmarthen (1257): Charter Rolls, i. 461.

3 Records of Northampton, i. 50; Records of Nottingham, i. 53; Charter Rolls, iii. 100 (Beverley). The proviso was omitted in the case of La Mote (Kent) in 1266: ibid. ii. 61.

I.e. an Englishman not a freeman of the town: Statutes, i. 33. The statement that "the Statute of Westminster merely enforced what had become the rule of all the greater boroughs" (Bateson, Borough Customs,

Conflict with borough custom.

in the charters of the North Welsh boroughs 1, and it was followed in 1283 by the Statute of Acton Burnell which instituted a new system. The preamble states that "merchants, which heretofore have lent their goods to divers persons, be greatly impoverished because there is no speedy law provided for them to have recovery of their debts at the day of payment assigned, and by reason hereof many merchants do refrain to come into this realm with their merchandise, to the damage as well of the merchants as of the whole realm". Accordingly, it was ordained that an official record of all debts should be kept in London, York and Bristol, and after the day of payment had expired, the personal property of the debtor should be distrained upon by the mayor, while in default of effects the debtor was to be imprisoned until the debt was paid 2. The contemporary author of the Mirror of Justices condemned this innovation of imprisonment for debt as a violation of Magna Carta A subsequent enactment (the Statute of Merchants, 1285) amended the previous statutes in two directions: debts could now be enrolled before the authorities of any town, and immovable as well as movable property became liable to distraint 4. In 1312 the number of towns was limited to twelve 5.

The famous Statute of Westminster appears, as we have seen, to condemn in set terms the old borough system of reprisals. Contemporary writers interpreted it in this light, and Coke, after recounting the evils of the older practice, adds "which customs are taken away by this statute " 7. None the less we are impelled to the conclusion that either the statute does not mean what it is commonly held to imply, or that it remained largely a dead letter. It is entirely inconsistent, for instance, with

ii. p. liv.) overlooks the fact that the immunity enjoyed by most of the greater boroughs under Henry III. was incomplete. In 1353 the Statute of Westminster was extended to alien merchants: Statutes, i. 339. But the Hansards had already secured this privilege in 1317: Charter Rolls, iii. 371.

1 Lewis, Boroughs of Snowdonia, 124. 280, 406, etc. 2 Statutes, i. 53.

4 Statutes, i. 98.
Fleta. c. 63, § 4.

For examples, see Charter Rolls, ii. 3 The Mirror of Justices, 179, 199. 5 Ibid. i. 165.

7 Coke, Second Part of the Institutes, 204.

the letters patent granted in 1315 to Ravenser in Yorkshire "for the improvement of the town", that for four years no inhabitant shall be distrained for debt whereof he is not the principal debtor or surety. In 1313 Lynn received a similar grant for seven years, which was renewed in 1341 for ten years; and Great Yarmouth (1321), Hull (1331), and Newcastle (1341) are further examples 1. These grants seem to indicate that the Statute of Westminster had failed in its purpose, and that the old borough rights still held ground. It is easy in fact to exaggerate the importance of statute law, and we have a significant reminder of the attitude of the boroughs towards parliamentary enactments in the contention advanced in a fifteenth-century custumal: "New statutes do not alter the free customs of the said town" 2. Where the Statute of Westminster was carried into operation, it was rather by virtue of its incorporation as part and parcel of the town custumal, as at Leicester in 12773. In this connection it is important that when parliament petitioned in 1391 for the enforcement of Edward's statute in Cheshire and Wales, the king refused the request 4. Indeed, there is evidence that in the west of England at any rate the earlier commercial usages survived to a late period. The border counties sent up a complaint to parliament in 1376 that their traders were arrested for debts other than their own 5, and in 1396 Shrewsbury was given leave to make reprisals in cases of unfair distress. Hereford (1394)

1 (i.) Ravenser: Patent Rolls, 1313-1317, p. 273. (ii.) Lynn: ibid. 1307-1313, p. 585; ibid. 1340-1343, p. 178. (iii.) Newcastle-upon-Tyne : ibid. 1340-1343, p. 187 (a grant for ten years). (iv.) Yarmouth: ibid. 1321-1324, P. 34 (for one year). (v.) Hull: Boyle, Charters of Kingston upon Hull, 18. In 1346 Hugh le Despenser made a similar grant to Llantrissaint: Archæol. Journal, xxix. 352.

2 Borough Custumals, i. 132 (Sandwich, referring to the law of debt). Cf. the remarks of the chronicler (Walsingham, vol. ii. 48) on the effectiveness of mediaeval legislation: "sed quid juvant statuta Parliamentorum, cum penitus expost nullum sortiantur effectum ? Rex nempe

cum Privato Consilio cuncta vel mutare vel delere solebat, quae in Parliamentis antehabitis tota regni non solum communitas, sed et ipsa nobilitas, statuebat". Walsingham here makes the king the scapegoat, but there were deeper causes at work. Borough custom was no less tenacious than manorial custom (compare, e.g., archaic survivals in borough jurisdiction), and national law did not easily overcome local law. 4 Rot. Parl. iii. 295 b. • Hist. MSS. Comm. 15th Rep. App. x. 4.

3 Records of Leicester, i. 163. 5 Ibid. ii. 352 b.

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