continental doctrines were received into our law during this period; and the characteristic peculiarities arising from the manner of their reception, which begin to appear in our commercial and maritime law during this period, and become more fully developed in the next. My division of the subject will therefore be as follows: (1) The Medieval Law Merchant in England; (2) The reception of the foreign doctrines of commercial and maritime law; and (3) The peculiarities in the development of English commercial and maritime law.

(1) The Mediaval Law Merchant in England. Commercial Law.



In England, as on the Continent,' the need for providing a special protection for the merchant and for trade led the legislators of the ninth and tenth centuries to confine trade to definite centres. In Saxon times we meet with laws which, if they did not confine trade to the "burh" or "port," made it a risky business for the purchaser to buy elsewhere, in case the goods turned out to have been stolen.2 This limitation of trade to special places which were specially protected, naturally led in England, as elsewhere, to the growth of permanent centres of commerce. It was only in these "ports" or "burhs" that money could be coined; and the market which arose under this special protection was one of the causes which gave to the borough community features which distinguished it from the other communities which made up the English state." "The general logic of the process," says Maitland," "we take to have been this: the king's burh enjoys a special peace: even the men who are going to or coming from it are under royal protection: therefore within its walls men can meet together to buy and sell in safety: also laws which are directed against theft command that men shall not buy and sell elsewhere: thus a market is established: traders begin to build booths round the market-place and to live in the borough." In England as abroad the king expected to be compensated for the special privileges there enjoyed. The traders must pay toll; and this right to toll

1 Above 86-87.

2 Maitland, Domesday Book and Beyond 194, and references to the Anglo-Saxon Laws cited ibid n. 1; Borough Customs (S.S.) ii lxxiv-lxxv; and cf. Tait, E.H.R. xii 774; Nottingham Records i 1, cited P. and M. i 634 n. 3; Stone, The Transaction of Sale in Saxon Times, L.Q.R. xxix 331-332.

3 Stone, ibid 326-330 suggests that it is the port rather than the burh which is associated with the rise of the permanent market.

4 Maitland, op. cit. 195.

5 Ibid 195, 196; E.H.R. xii 774; vol. i 139; vol. ii 387-389.
Domesday Book and Beyond 192-193.

is one of those franchises which were so freely granted by the Anglo-Saxon kings. Thus, in England as abroad, the right to hold these markets, and even the right to confer the privileges of a burh upon a community, passed into the hands of the great landowners; and they were not generally recognized as belonging solely to the crown till after the Quo Warranto inquiries of Edward I.'s reign.3


By that time it had become clear that the two chief centres of commerce were (i) the boroughs, and (ii) the chartered fairs. We have seen that both these centres had courts in which the Law Merchant was administered.4

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(i) Some illustrations have already been given of the way in which the customary law administered in the boroughs adapted itself to the needs of the trader.5 We have seen that special rules relating to apprentices, to the liability of masters on their servant's or agent's contracts, to the capacity of a married woman who was a trader, to the forms and enforceability of contracts, can be traced to the fact that the borough was a mercantile community. Some boroughs provided an especially speedy process where one of the litigants was a foreign merchant; and a jury half-native half-foreign was sometimes allowed in such cases.7 Special rules were made where one of the parties to a suit wished to rely upon a document which at the time of action brought was in a foreign country. Although the borough court could not, as a rule, entertain actions which arose outside its territorial limits," it was in some cases, provided that it should have this jurisdiction if the cause of action were a trade contract or arose as between foreign merchants.10 In some boroughs we meet with various sets of rules which aimed at protecting the honest pur


1 Domesday Book and Beyond 194; vol. i 19-20. 2 Ibid 140.

Ibid 87-90.

4 Ibid 535-540.

5 Ibid 536-537; vol. ii 387-389; vol. iii 387; see also Law Merchant in London, E.H.R. xxxvii 242 seqq. for some details as to the London courts.

6 Vol. i 537 n. 1; and Borough Customs (S.S.) ii 183-184 there cited; cf. E.H.R. xxxvi 242-243.

7 Borough Customs (S.S.) i 201-citing the London Liber Albus i 292; ii 191, 192.

8 Liber Albus (R.S.) i 212, 213; and these rules were borrowed by Lincoln, Borough Customs (S.S.) i 207.

9 Vol. i 149; cf. E.H.R. xxxvii 246-247.

10 Liber Albus (R.S.) i 215, 216, "Item, en pleyntes de dette et accompt, et autres personels contractz faitz parentre marchaunt et marchaunt, si le pleintif counte que le defendaunt a ascune ville marchaunt, ou en lieu marchaundable deinz le roialme, bargana ou achata de mesme le pleintif ascuns marchaundises, ou receust ses deniers pour luy paier, livrer, ou eut rendre accompte en ascun lieu deinz la citee de Loundres; en tiel cas, le defendaunt par usage serra mys a respounder, nient contrusteaunt que le contrait se fist hors de la citee"; there is a similar provision at Cork about 1339, Borough Customs (S.S.) i 213, 214; for the same rule in the case of the fair courts see vol. i 536 n. 11; above 89 n. 4.



chaser of stolen goods; but these borough rules, except in the city of London, did not become a permanent part of English law. It was only upon an honest purchaser in market or fair,2 that the common law conferred any such privilege; and by Edward IV.'s reign the London privilege had come to be based on the assumption that all shops in the city of London were market overt for sales effected by the shopkeepers. This privilege has, from the end of the sixteenth century, been strictly limited to sales in the shop by the shopkeeper of the articles in which he deals. It does not apply to sales not in the shop, or to sales to the shopkeeper; and it only applies to bona fide purchasers. Neither in borough nor in fair does there appear to have been any liability for the deficient quality of goods sold, except by virtue of an express warranty."





But though commercial needs sometimes influenced the jurisdiction and procedure of the borough courts, and inspired certain of the rules of law laid down by them, commercial law does not, as Miss Bateson has pointed out, hold a large place in the borough custumals. "Merchant law," she says, "appears in these codes as only a subsection, chiefly interesting to the clerk of the borough court for the forms of its piepowder court, its rapid procedure, its arrangements for the foreigner, and the trader travelling from place to place. That our custumals have so little to tell of the rules of hosting and brokerage, of the beginnings of the negotiable instrument, or the responsibilities of partnership, of rules concerning the delivery of goods, of owners'


1 Borough Customs (S.S.) ii lxxvi-lxxviii-Miss Bateson says of these rules, "The borough law of bona fide purchase was not the uniform international merchant law which was tending to grow up on this subject, in protection of the possessor's claim against that of the loser of the goods, but a law developing here in one way and there in another, according to the circumstances in which the borough was placed." 2 See below 110-III for the treatment of this subject in the fair courts.

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3 Y.B. 12 Ed. IV. Pasch. pl. 22, where it was claimed that, "La Cite de Londres est auncien City de temps d'ont memory etc. et ad estre un market chescun jour en le semaigne pour touts hommes de vendre etc. ;" cf. Y.B. 33 Hy. VI. Hil. pl. 15. Every shop in London is market overt for such things only which by the trade of the owner are put there to sale; and when I was recorder of London I certified the custom of London accordingly. Note Reader the reason of this case extends to all markets overt in England," per Coke, the case of Market Overt (1596) 5 Rep. 83 b; this case is reported also in Popham 84, 1 Anderson 344, Cro. Eliza. 454, and Moore 360; the best modern account of this custom will be found in Scrutton J.'s judgment in Clayton v. Le Roy [1911] 2 K.B. at pp. 1038-1045; he points out at p. 1041 that the custom "is confined to open sales in shops of goods usually sold there, and in the time of Elizabeth importance was attached not only to the sale being in an open part of the shop, but to the sale being visible to passers by in the street."

5 Hargreave v. Spink [1892] 1 Q.B. 25 ; Clayton v. Le Roy, last note.
6 Y.B. 33 Hy. VI. Hil. pl. 15.

7 Borough Customs (S.S.) ii 182, 183, citing the customs of Grimsby (1259), Exeter (1282), and Lancaster (1562); the Berwick Gild Statutes, cited ibid 182, seem to make the seller liable if he has been guilty of fraudulent concealment.

8 Borough Customs (S.S.) ii lxxxv.

risk, of negligence, of covenant or account, seem to show that if market law could once claim a big share in the making of borough law, the large commerce of a later time was sending its stock of legal ideas into another channel.” It is therefore to the piepowder courts of the fairs, and to the courts of the staple, rather than to the courts of the boroughs, that we must look, if we would trace the development of commercial law in England in the Middle Ages.


(ii) I have already spoken of the court of piepowder which was incident to the franchise of fair. We have seen that this court was held both for those fairs which belonged to particular lords, and for the fairs which were held by the boroughs.1 Many records of these piepowder courts exist; and it would seem that the existence of these records is peculiar to England. The records of the great continental fairs, if they ever existed, have not come down to us. Gross has published a selection of these records; and Maitland has published some of the records of the fair court of the Abbot of Ramsey held at St. Ives in Huntingdonshire.3 These are the only records yet published; but we get some further information, both as to the character of the court and as to the law there administered, from the custumals of some of the boroughs, and from the unique treatise on the Law Merchant contained in the Red Book of Bristol.5

It is clear from these authorities that these piepowder courts were of the same general type as the fair courts of the Continent." I have already described their leading characteristics. Here I must note some of the peculiarities of the law therein administered.


The idea that the law must be administered speedily and summarily, which is common to all medieval commercial courts throughout Europe, took practical shape in many relaxations of the ordinary rules of procedure. "Pleas were begun without a writ, formalities were assuaged, few essoins were allowed, and an answer to the summons was expected within a day, often indeed within an hour. Pleas were adjourned from hour to hour and from day to day. . . . If the defendant failed to appear when summoned, his goods were attached forthwith, appraised, and sold." 9 In London an attempt was made to restrict appeals in

1 Vol. i 537-538.

2 Gross, Select Cases on the Law Merchant (S.S.) i
Select Pleas in Manorial Courts (S.S.) 130-160.

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4 See the munimenta Gildhalle (R.S.); and the two volumes of Borough

Customs (S.S.).

5 Vol. i 529, 539.

7 Vol, i 535-540.

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9 Gross, Select Cases on the Law Merchant (S.S.) i xxvi; and cf. the authorities

cited ibid xxv, xxvi.

order that vexatious delays might be avoided;1 and the emancipation of these courts from the ordinary technicalities of procedure sometimes gave rise to developments which were in advance of the contemporary rules followed by the courts of common law. The general rule that the party, plaintiff or defendant, who failed to prove his claim or plea, paid the costs; the communications maintained between the courts of different fairs, whether in England or abroad; and the respect paid to the judgments of their courts—are good illustrations. But perhaps the most interesting of these developments is the manner in which in certain places the plaintiff's secta was developing into a body of witnesses who were examined by the court in a very modern fashion. *



The records of the fair courts show us that the parties might either have their case tried by a jury," or by the old method of compurgation. If they elected the former method (as they usually did) matters proceeded as at common law. If they elected the latter method the Red Book of Bristol, and a case of 1428 which occurred in the court of the staple of Exeter, show that the formal compurgation was disappearing, and that the proof really turned upon an examination of the plaintiff's secta. secta was treated as a body of witnesses.9 They were examined by the court, and were examined apart from one another if there was any reason to suspect fraud or collusion.10 At the same time


1 Borough Customs (S.S.) ii 192 (1419), citing Ricart's Kalendar 100; but the author of the Bristol Treatise seems to contemplate the possibility of proceeding by a writ of trespass in the royal courts for the giving of an irregular or unjust judgment, Red Book i 70-a mode of procedure which looks as if the author had not yet distinguished a complaint against a judge from a complaint against his decision, vol. i 213-214; the common law courts certainly heard such appeals, see e.g. Plac. Abbrev. 321.

2" Et sciendum quod quicunque cadat sive querens sive defensor semper cadit in damnis et expensis illius pro quo judicium redditur," Red Book of Bristol i 66; and see also ibid pp. 65, 67; for the common law rules see vol. iv 536-538.

3 Vol. ii 393; above 98; Red Book of Bristol i 80-85.

4 For the secta and for the old ideas as to proof and procedure, see vol. i 300301.

5 It would seem that, in London at any rate, the jury must be a jury of merchants, E.H.R. xxxvii 245-246.

"There are many instances of trial by a jury in Gross, Select Cases on the Law Merchant (S.S.); see e.g. at p. 53; for instances of compurgation which, in civil cases, are fewer in number, see ibid pp. 90, 97; Red Book of Bristol i 69.

7 Pp. 64, 65.

8 Gross, op. cit. 116-121; see the Eyre of Kent 6, 7 Ed. II. (S.S.) ii 48-50 for a case in which a somewhat similar mercantile procedure was employed in the Eyre.

9 In the Red Book of Bristol i 69 they are clearly distinguished from jurors; at p. 63 it is stated that no compurgation was allowed in the trial of merchant's contracts, even though there was no tally or writing, because to exact writing or tally would impede trade "onus et impedimentum continuum esset si singulis vicibus de omnibus particulis mercandisarum suarum tallias seu scripta sibi facere et recipere debent"; cf. Borough Customs (S.S.) ii 188, 189, which shows that other towns accepted this as part of the law merchant.

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10 Red Book of Bristol i 64, "Unde cum defendens in Curiam venerit, et precise neget et demandam seu querelam querentis . . extunc detur querenti dies ad

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