owing to the absorption of its jurisdiction by the central courts.1 Unlike the fair courts of the Continent,2 our English fair courts made no permanent contribution to the growth of special commercial courts, and took no large share in the development of a system of commercial law. The reasons for this difference between England and the Continent were (i) economic, and (ii) legal. 3 (i) We have seen that all through the Middle Ages England was economically in a backward state of development. The production and export of raw material, and the import of foreign manufactured commodities, were the outstanding features of its foreign trade. And this foreign trade was to a very large extent in the hands of foreign merchants. We read in the Venetian Calendar1 how in 1287 "Thomas Lauredano sent to England by Nicoleto Basadona about 10,000 lbs. of sugar and about 1,000 lbs. of candy, and four livres tournois gross, in money amounting to 3,580 livres. Nicoleto sold the goods in London, and went to St. Botolph's (Boston), where he invested the money in wool, which he shipped on board two coggos for Flanders." These foreign merchants lived very much to themselves. The Venetians and the Hanse, for instance, had their own factories in London. They naturally preferred to settle their own disputes, and attempted fairly successfully to prevent their own countrymen from appealing to any jurisdiction except that of their own consuls. No doubt English merchants had some share in the export trade of the country. But this trade was confined to the staple towns, and cases connected therewith were determined for the most part by the special courts of the staple." The result was that the great bulk of the cases which came before the courts of our English fairs and boroughs were concerned with the smaller transactions of internal trade. Naturally these economic facts reacted upon the law administered in their courts. 5 (ii) The impression which the published records of our fair 1 Gross, op. cit. xviii-xx; vol. i 569. 2 Above 93-100. 3 Vol. iv 315. 4 Calendar of State Papers (Venetian) (1202-1509), 3-4. 5 Ibid 71-a decree of the Senate of August 1446, "Forbidding Venetian citizens resident in London and Bruges to have recourse to the local courts of judicature for the settlement of disputes among themselves; any Venetian suing a fellow-countryman in any such court to incur a fine of 500 golden ducats"; cf. ibid 296-regulations of the Venetian Factory in London ratified by the Senate in 1503, which illustrates the jurisdiction exercised by the Venetian consuls. At the same time they sometimes had recourse to the English courts-thus in 1456, owing to the insults of the Londoners, all the Italian merchants withdrew to Winchester, and they wished to get the king to appoint a judge who should sit at Winchester to settle "all lawsuits and causes arising between Englishmen and Italians and amongst Italians that they may not have to go to the law courts of London," ibid 84-85. 6 Cf. L.Q.R. xvii 67; vol. i 542-543. VOL. V.-8 There courts leaves upon me is that they were courts which dealt for the most part with petty transactions, and that consequently, the law there administered had not much chance to develop. The forms of action, the procedure, and the rules of law possess the same primitive characteristics as marked the business in other local courts. Compurgation meets us at every turn. is no clear line between tort and contract. The proprietary character of a debt and of the action of debt is sometimes very pronounced.1 It is true that we sometimes read of "scripta obligatoria" which bound their makers to pay the person named therein or his certain attorney, or the bearer; 2 and we shall see that on the Continent "scripta obligatoria" of this kind were one of the germs from which the negotiable instrument was subsequently developed. But the process of development has not gone far in this country. Thus the powers of the "certain attorney" are limited: he cannot plead "non est factum" to a release under seal alleged to have been made by the payee. It is true that in London we can read much about the regulation of brokers and their evasions of the usury laws. But what Miss Bateson has said of the law administered in the boroughs is generally true of the law administered in the fairs. Neither in our fair nor in our borough records do we read much of the beginnings of those legal doctrines of our modern commercial law which were beginning to spread from Italy and south-western Europe to the great fairs of France and the trading cities of the Netherlands. 6 The fact that the notary never took the position of importance in England that he took abroad is significant. He was known well enough in England. In fact he was needed for the work of the ecclesiastical courts, and for public acts relating to foreign affairs; and he appears on occasions of more than ordinary 8 1 In the twelfth century custumal of Okehampton, Borough Customs (S.S.) i 133, we read "Si quis debitum alicujus burgensis asportaverit, burgensis catalla asportantis in burgo suo capiant"; this is of course an early custumal, but even at the beginning of the fourteenth century Debt and Detinue were not clearly distinct, cf. Gross, op. cit. 99, 103; cf. above 109 n. 4 for another instance. 2 Select Pleas in Manorial Courts (S.S.) 152, "Scriptum obligatorium inter ipsos confectum portanti solvisse debuerunt"; Gross, op. cit. 62, a promise to pay "domino Willelmo vel suo certo attornato deferenti scriptum obligatorium"; 65, 66, 67-" per litteram obligatoriam solvere predicto Johanni vel suo certo nuncio litteram obligatoriam deferenti"; 86-87-a promise to pay to the plaintiff "vel suo certo attornato." 3 Pt. II. c. 4 I. § 2. 4 Gross, op. cit. 66-67. 5 Munimenta Gilhalla (R.S.) i 368-373, 394-402; similarly in the sixteenth century they were often in league with thieves, and assisted to dispose of stolen property, Aydelotte, Elizabethan Rogues and Vagabonds 97-98. 6 Above 105-106. 7 P. and M. i 197; for the notarial system abroad see above 78-79. 8 See instances cited by Brooke, The Office and Practice of a Notary of England (ed. 1901) 11-13. solemnity.1 And though the fact that he was an imperial or a papal official occasionally led English kings from patriotic or interested motives to refuse to allow him to exercise his office,2 he was never permanently excluded. But he was never needed, and therefore was never recognized by the medieval common law. I cannot but think that if Englishmen had had much need to use the commercial instruments which these notaries drew, if these instruments had come with any frequency before the courts, we should have seen a similar class arising in England. That no such class arose in the Middle Ages points, I think, to the fact that the larger commerce was mainly in foreign hands, and that the litigation arising from it did not trouble the English courts. And the fact that in the fifteenth and sixteenth centuries, when England began to take her own foreign trade into her own hands, a new commercial sphere of work opened to the notary, renders this hypothesis the more probable. Laymen as well as ecclesiastics began to fill the office. They began to be employed in England, as they were employed abroad, to draw up many different kinds of documents; and to this day all notaries are members of the Scriveners Company.3 But though notaries thus came to be used in England, they never attained the same position in English law as that which they attained abroad. Like much else that is peculiar to English law, the reason must be sought in the characteristics of the common law in the Middle Ages, and in its history during the sixteenth and seventeenth centuries. The backward economic condition of England in the Middle Ages, and the insularity of the common law, were the reasons why that common law never needed, and therefore never recognized, an official of the civil or canon law. The Reformation of the sixteenth century, and the victory of the common law over its rivals in the seventeenth century, reduced the civil and ecclesiastical law to a subordinate position; and the officials recognized by them naturally shared their fate. The economic position of England in the Middle Ages had 1 Thus we find notaries among the persons deputed to give Richard II. notice of his deposition and to receive his resignation, R.P. iii 416, cited Brooke, op. cit. 13. 2 See two writs of 13 Edward II. cited by Prynne in his preface to his Animadversions on Coke's Fourth Institute, according to which imperial notaries were forbidden to exercise their office in England-to allow them, it was said, implied some sort of subjection to the emperor; ibid at pp. 58, 59 he cites the case of John de Bourne who, 3 Edward III., was imprisoned by the Barons of the Exchequer, because, with a view to questioning subsequently the proceedings in an ecclesiastical court, he brought a papal notary into the court of Exchequer to record the proceedings in a plea between himself and a parson. 3 Brooke, op. cit. 14, 15. Their later history is uneventful. At the Reformation the king assumed the papal power to appoint notaries, and vested it in the Court of the Faculties which was under the control of the Archbishop of Canterbury, 25 Henry VIII. c. 21; that body still appoints, but the office is regulated chiefly by the statutes 41 George III. c. 79, and 6, 7 Victoria c. 90. 4 Above 78-79. thus prevented our boroughs and fairs from doing much for the development of our commercial law during this period. For reasons which we must now explain they were unable, in the sixteenth century, to assume jurisdiction over that larger commerce in which Englishmen then began to take an active part. We have seen that the outstanding feature of English legal history in the Middle Ages was the presence of an expanding common law which was gradually and quietly absorbing the smaller local jurisdictions. Since the courts of fair and borough had never acquired a jurisdiction over foreign trade, and had never therefore had a chance to develop the legal doctrines necessary to govern the more complicated transactions of such a trade, they succumbed, like the other local jurisdictions, to the encroachments of the common law. In the course of the sixteenth century the common law courts had assumed jurisdiction over the larger number of cases connected with the internal trade of the country; 2 and the new principles of contractual and delictual liability which they were developing rendered the law which they administered quite adequate to deal with these cases. 5 3 Cases con nected with foreign transactions were, as we have seen, outside the scope of the common law courts in the earlier part of the mediæval period. If a contract were made abroad no jury could come from the foreign place to find the facts. But these cases rarely came before the courts of boroughs or fairs. When they arose they often involved considerations of mixed law and diplomacy. Naturally therefore they came before the Council or the Chancery. Thus in Edward I.'s reign the Lord Mayor of London said that he could not grant a request to enforce a judgment of the fairs of Champagne, in which the "défense des foires," had been threatened, without a reference to the king and Council; and in the Venetian Calendar questions which arose between English and Venetian merchants were generally referred to the same tribunal. In Edward IV.'s reign the chancellor considered that, because cases concerning merchant strangers were outside 1 Vol. ii 310. 2 Vol. i 569. Ibid chap. ii §§ 6 and 8. 6 5 Vol. i 534; vol. ii 309-310; the exhaustive analysis made by Prynne, Animadversions on the Fourth Part of Coke's Institutes 90-95, is really quite conclusive on this point; see especially his references to the Doctor and Student ii c. 2; Perkins, Profitable Book §§ 121, 494; F.N.B. 114 B; but the maze of distinctions drawn in cases which turned on the proper venue of the jury when disputes arose out of facts happening in different counties, Reeves, H.E.L. ii 409-414, afforded an opening of which the later lawyers, and especially Coke, took advantage, below 118-119, 140142. 6 Above 98 n. 2; C. Walford, op. cit. 259-260; E.H.R. xxxvii 247. 7 Calendar of State Papers (Venetian) 126—in 1471 the Council at the suit of William Cowper sentenced the Venetian nation to pay £1200 for damages to a ship captured by the Venetian captain general; ibid 131, Edward IV. reduced the sum to £750; for early instances of such references see E.H.R. xxxvii 247 and n. 5. the scope of the common law, they were therefore subject to his equitable jurisdiction.1 But during the latter half of the fifteenth century the rivalry which had sprung up between the common law courts on the one side, and the Council and Chancery on the other, led the common law courts to wish to encroach upon the sphere of the Council's and the Chancery's jurisdiction; and this attitude on the part of the common law courts led to an expansion of common law doctrine in many directions. Three of these lines of expansion are especially important in relation to the commercial jurisdiction of the common law courts. In the first place the development of the action of assumpsit was giving to the common law an adequate remedy for the enforcement of contracts. In the second place, the development of the action of trover was giving it an adequate remedy for the enforcement of title to goods. In the third place there was a movement towards some modification of the strict rules of venue which, at an earlier period, had barred the common law courts from hearing cases which turned upon acts done or transactions entered into abroad. With the beginnings of the development of the actions of assumpsit and trover I have already dealt.2 At this point I must say something of the beginnings of those modifications of the rules of venue which were a condition precedent to the attainment of any sort of commercial jurisdiction by the common law courts. Under the old common law the parties to an action were required to designate with the greatest particularity the place where the events alleged in the pleadings had happened, because the sheriff could not otherwise have summoned a jury who would know the real facts of the case.3 But this strict rule was found to be inconvenient in cases in which the facts alleged happened partly in one county and partly in another. It was this inconvenience which at the end of the thirteenth or the beginning of the fourteenth century, induced the judges to draw the 5 1Y.B. 13 Ed. IV. Pasch. pl. 5, "C'est suit est pris par un marchant alien, que est venus per safe conduit icy, et il n'est tenus de suer solonques le ley del terre, a tarier le trial de xii homes, et autres solempnities del ley de terre, mes doit suer icy, et sera determine solonque le ley de nature en le Chancery, et il doyt suer la de heur en heure et de jour [en jour] pour le spede de marchants. Et coment que ils sont venus deyns le royalme, pour ce le Roy ad jurisdiction d'eux de mitter d'estoyer a droit, etc., mes ce sera secundum legem naturæ que est appell par ascuns ley Marchant, que est ley universal par tout le monde." 2 Vol. iii 350-351, 428 seqq. 3 Vol. i 332. For the mass of decisions, often conflicting, to which this inconvenience gave rise, see Reeves, H.E.L. ii 409-412. 5 In the Eyre of Kent 6, 7 Ed. II. (S.S.) ii 32, 34 it was ruled that a writ of debt might be brought either in the county where a contract was made or in any county in which the defendant was resident; Staunton J. said that under the old law the writ might have been abated, "but the contrary has been the practice for a long time past.' |