began, in the course of the thirteenth century, to encroach upon the powers of the feudal nobility, that the privilege of creating a market came to be regarded as an exclusively royal prerogative.1 To these markets all commerce was as far as possible restricted, because this restriction facilitated the preservation of order, the collection of tolls, and the safety of the merchants.2 Thus the market formed a liberty in which a justice, different from that of the ordinary courts, was administered as and when it was needed.3 4 In the course of the eleventh and twelfth centuries society was growing more settled; and, in the course of the twelfth and thirteenth centuries, we can see the growth of towns which, having acquired from the king or lord franchises of many varied kinds, fell apart from other communities. We have seen that in England the origins of the boroughs are very various; and the same variety is apparent on the continent. But in most, perhaps in all cases, the town was the seat of a market. The traders who resorted to it were generally organized in gilds; and thus the way was prepared for the formation of a more permanent seat of commerce.7 "The traders," as M. Huvelin has said, "become burgesses and the market becomes a town."8 The temporary peace of the market becomes the permanent peace of the town, and, similarly the court and the law of the market become a part of the permanent organization and the permanent law of the town. The resemblances between the market organization and the market law on the one hand, and the town organization and the town law on the other, show that this was in many cases the line of development. Thus: (a) in certain markets we see a body of scabini named by the lord of the market to assist him or his deputy in administering justice.1 Similarly most towns had a council of jurati or pares or scabini, at first nominated by the lord, but generally in later days elected, which possessed a certain jurisdiction. This council came to 2 Ibid 197-198. 1 Huvelin, op. cit. 185-187. 10 3" Il y eut ainsi à côtè des tria placita legitima du droit commun, une justice extraordinaire du marché qui s'exerca selon les besoins du moment. La justice du marché est une justice particulière. elle est indépendante de toute autre justice pendant le temps du marché," ibid 193-194. 4 Esmein, op. cit. 331-332. 5 Vol. i 138-149. Esmein, op. cit. 338-340; Huvelin, op. cit. 212. 7 Esmein, op. cit. 335-338. 8 Op. cit. 218; "Les mots cives, burgenses, mercatores sont employés comme synonymes par les ecrivains et par les recueils juridiques. La même assimilation est faite entre les mots civitas et villa forensis: en effet là civitas n'est qu'une villa qui a le droit du marché," ibid 220. 9 Ibid 221-228. 10 Thus when in 1285 the government of London was taken into the king's hands, and put in charge of a warden, he held the court, and consulted with the aldermen ; and similarly at St. Ives the lord held the court and consulted the merchants, see E.H.R. xxxvii 244-245. consist of merchants who represented the various gilds; and they formed the beginnings of a commercial court.1 (6) The right to seize a debtor's property without the judgment of a court was forbidden to those who were under the peace of the market; and we see a similar rule in favour of the burgesses of those towns which had originated from a market.2 (c) The violation of the peace both of the market and of the town was punished by a double fine. (d) Though the competence of the court of the town differed from the competence of the court of the market, in that it was a permanent and not a periodic court, and in that it sometimes acquired jurisdiction over the land on which the town was built, it resembled the market court in that it was in early days confined to contracts made and delicts committed within its geographical limits. (e) Both the law of the market and the law of the trading burgesses who inhabited the town paid no regard to the status of the litigants-they applied to noble free and serf alike. 5 4 Thus the ideas inherent in the periodic market, with its special organization and its special law, have helped to form a permanent market, and a permanent court administering a commercial law. It does not of course follow that these periodic markets ceased to be held. They did not all develop into municipal bodies; and, when they did so develop, they were often not the only cause which led to the growth of this permanent organization. Sometimes the right to hold a market was granted to a town; and therefore in later law the market often existed separately from the municipal organization which had grown up around it, or to which it had been annexed." But the market tended to become merged in the municipal organiza 6 1 Huvelin, op. cit. 234-236, 397; Esmein, op. cit. 349; Morel, op. cit. 97, says, "Le droit de marché a été l'embryon du droit commercial allemand; c'est à l'occasion des affaires du marché que les négociants ont commencé à prendre part à l'administration de la justice et si, au xiiie et au xive siècle, on les a jugés dignes d'entrer au conseil de ville et de remplir les fonctions d'échevin, c'est qu'ils avaient précédement montré leur sagesse et leur habileté dans le poste moins relevé de magistrat des foires." 2 Huvelin, op. cit. 449, 450; see the charter of Soissons (cited ibid at p. 450), "Infra civitatis Suessionensis firmitates, alter alteri recte secundum suam opinionem auxiliabitur, et nullatenus patietur quod aliquis alicui eorum aliquid auferat . . . vel quidlibet de rebus ejus capiat." 3 Ibid 227. 4 Ibid 231-233; but later, and probably under the influence of the great international fairs this restriction disappeared, ibid 414; cp. vol. i 536 and n. 11; in England the older restriction was restored by a statute of 1477 vol. i 539. 5 Huvelin, op. cit. 228-231. 6 Thus Huvelin, op. cit. 173, points out that grants of market rights were given to Spires in 969, to Strasburg in 982, to Worms in 979, to Cologne in 973, and to Mayence in 975. 7" Dans la ville, il y a place non seulement pour le droit municipal (jus fori), mais encore pour le droit domanial, le droit ecclesiastique, le droit royal. La ville n'est pas habitée seulement par des bourgeois," ibid 229. tion because the latter was better suited to the conditions of domestic trade in a more settled order of society.1 2 Thus we see the germs of a separate and a permanent commercial law. But as yet it was a law which depended largely upon the municipal constitution of the particular town. It is true that there are resemblances between these constitutions, due sometimes to direct borrowing, sometimes to similarity of circumstances under which the town obtained its franchises; and this led to broad similarities in the law applicable to commercial transactions. For all that, the law was the law of a particular town or of a particular group of towns. There was nothing especially cosmopolitan about it.3 It was not till the growth of the great international fairs, and the rise of the settlements of privileged associations of foreign merchants, that we can discern the beginnings of that cosmopolitan Law Merchant with which we are familiar. (2) The fairs and the associations of foreign merchants. 4 Certain of the older markets had developed into towns and had become the centres of the permanent trade of a district. The growth of an international commerce during the twelfth and thirteenth centuries caused others to become large fairs of a type very different to that of the older markets. M. Huvelin has very clearly summed up the reasons for this development. He says:-" when the superstitious fears of the year 1000 had passed away, when the invasions of strange tribes had ceased, when the definite establishment of feudalism had assured at least a relative security, a security which the church helped to render more stable-there was everywhere a renaissance of art, of thought, of business, and of society. The world took courage and commerce again began to flourish. . . . A decisive impulse was given by the crusades. From them we must date the habit of distant travel. It is they which opened the trade routes of the East, and thus created new markets for a cosmopolitan commerce. The Italians, enriched by foreign commerce, travelled over France, fairs were established on all sides, and great mercantile associations were formed. Owing to this series of peculiar 1"La marché n'est plus un organisme autonome, c'est un membre d'un organisme supérieur dont il depend," Huvelin, op. cit. 241. 2 Esmein, op. cit. 346-347; Gross, The Gild Merchant i App. E; vol. i 528-529; cp. Tait, Study of Early Municipal History, Proceedings of the British Academy vol. X II-12. 3 Esmein, op. cit. 340, "Ce qui caractérise le droit municipal du moyen âge, c'est la particularité et la diversité. Chaque ville acquiert isolément ses privilèges et reçoit son organisation particulière; dans l'ensemble du plat pays, qui reste soumis aux rigueurs du régime féodal, ce sont autant d'îlots qui émergent et dont chacun a sa physionomie propre." 4 Op. cit. 242. circumstances the fairs attained a degree of prosperity which they had never attained before or since. 3 The chief of these fairs were established on the trade routes which ran from the north to the south of Europe. It is for this reason that some of the most important of them are found in Champagne2 and in Flanders. Somewhat later we get great fairs in some of the German towns.4 A little earlier we get a series of important fairs in Italy-but, as M. Huvelin has said, Italy attained a commercial civilization too highly advanced to preserve for long the form of a periodic trade. "The true Italian fairs are the fairs of France and especially the fairs of Champagne." 5 The fairs of Champagne began to decline during the fourteenth century, partly from political and partly from economic causes. The acquisition of Champagne by the French king involved it in the French wars of this century; and the heavy duties imposed by the king frightened away the merchants. The trade between Flanders and Italy began to be conducted either by sea or along the Rhine valley; and in the fifteenth and sixteenth centuries the fairs of Lyons began to take the place of the fairs of Champagne, because Lyons was a more convenient port for French foreign trade.s Other fairs which had an international importance in the fifteenth and sixteenth centuries were the fairs of Geneva and Besancon ; 10 and in Germany the fairs of Leipsic, Frankfort on the Main, and Cologne.11 But already the age of fairs was passing. International commerce was becoming fixed permanently at certain centres; and in the course of the seventeenth century the international fairs became chiefly places where the bankers met to settle the payments for transactions concluded elsewhere. They had become not so much fairs as the clearing houses of Western Europe. 12 7 1 Op. cit. 243, "Les plus importantes d'entre elles sont établies sur une ligne qui va du Sud au Nord, de la Provence aux Flandres et à l'Angleterre, en suivant les vallées du Rhône, de la Sâone, de la Seine, de la Marne, de l'Oise, de la Somme, et de l'Escaut. D'autres groupements, plus restreints, sont disséminés dans toute l'Europe occidentale, et marquent les points de rencontre des voies commerciales fréquentées au xiie siècle." 2 Ibid 244-254; the fairs of Champagne and Flanders form two types of fairs on which the franchises of other fairs were often modelled, ibid 243, 244. 3 Ibid 258-266. * Ibid 281, "Les foires d'Allemagne naquirent plus tard que les foires de France, et elles suivirent une évolution parallèle avec un siècle ou un siècle et demi de retard.” 5 Ibid 279-280. * Ibid 255-258-as M. Huvelin points out, before Champagne was united to the crown of France it had formed "un marché neutre entre l'Italie, la Flandre, l'Allemagne, l'Angleterre, et la France." 7 Ibid 257; Calendar of State Papers 8 Ibid 258, 286-289. 10 Ibid 291-292. (Venetian) i lxi-lxviii. 12 For these fairs and the procedure followed at them see ibid 564-577; M. Huvelin, speaking of the period from the fifteenth to the seventeenth centuries, says, 3 But, though the great international fairs had passed away, their effects upon the growth of a uniform commercial law were permanent. In the fairs of Champagne merchants from all the countries of Western Europe met-many companies of Italians, merchants from all the cities of France and Flanders, Provencals, Jews, Englishmen, Scotchmen, Germans, Savoyards, and Spaniards.1 In the fairs of Flanders, likewise, there were representatives both from the northern kingdoms, from the south of Europe, and from the East.2 The men of all these different nations met and conducted their business under the same protection and the same law; and, as that law developed to meet the new needs of this international commerce, the more finished legal conceptions of southern Europe inevitably exercised a constantly increasing influence upon the more primitive laws of the nations of northern Europe. That influence was exercised the more effectually because the companies of foreign merchants, either at these fairs or in their more permanent settlements, obtained in many cases the privilege of governing themselves and their transactions by their own laws. Thus the Italian Merchants, by treaty with Philip the Hardy, obtained in 1279, the right to nominate for themselves a captain, rector, and consuls. The Provencal Merchants formed the "Societas et communitas mercatorum de Francia," the chief of which was nominated by the consuls of Montpellier." The German merchants had their hansgraves, who decided their disputes while on their travels and during the fairs; and the Hanseatic league got from the sovereigns of the various states of northern Europe in which they settled privileges, more or less extensive, of deciding their disputes by their own judges and their own laws. This meant that, both in the fairs and wherever these associations of merchants settled, a uniform commercial law was to a large extent made and administered by the merchants for themselves. Therefore the rules of law and the modes of administering it which were best suited to international trade could easily be op. cit. 283-284, "Grace à la paix de plus en plus assurée qui règne partout, grâce aussi aux moyens de transport qui se perfectionnent, les foires, si elles gagnent peut être en importance absolue, perdent en importance relative. Les transactions qui s'y font, au lieu de constituer tout le commerce terrestre, n'en constituent qu'une fraction qui d'ailleurs diminue tous les jours. Les foires sont surtout, à cette époque, les centres de règlement d'affaires faites en dehors d'elles; ce sont les grandes places de paiement de l'Europe occidentale ; at Lyons, in the seventeenth century, the jurisdiction of the conservation of fairs was extended to all commercial transactions in or out of the fair, Huvelin, op. cit. 418. 1 Ibid 250-252. 2 Ibid 264-265. 6 3 Ibid 258. 8 4 Ibid 399; see Morel, op. cit. 82, 83 for the Italian consules missi and electi. 5 Huvelin, op. cit. 398. 7 Ibid 123-127. "Morel, op. cit. 119-123. 8 Ibid 88, 89. |