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 xv, xvi.

3 Select Pleas in Manorial Courts (5.5.) 130-100.

4 See the munimenta Gildhalla (R.S.);

Customs (S.S.).

5 Vol. i 529, 539.

7 Vol. i 535-540.

and the two volumes of Borough

6 Above 92-93.

8 Above 81-83, 96.

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; 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 format compurgation was disappearing, and that the proof really turned upon an examination of the plaintiff's secta. The secta was treated as a body of witnesses. They were examined by the court, and were examined apart from one another if there was any reason to suspect fraud or collusion.1 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.

"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.

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.

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.

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

the trial had not quite assumed its modern aspect. If the members of the secta stuck to their tale and convinced the court the plaintiff won his case. The defendant could not call rebutting evidence. All he could do was to accuse the plaintiff's witnesses of perjury; and to succeed on this charge he must produce at least two more witnesses than the plaintiff." Thus we see the law at the interesting stage in which the old ideas of proof, though they still prevailed, were fast being developed into something approaching the modern conception of a trial by a court which finds the facts in accordance with the sworn evidence


produced before it. It was not till the sixteenth century that the common law trial by a judge and jury definitely reached this stage. It is certainly instructive to see that, even in the trial by compurgation, there were possibilities of a development, which, if it had continued, might have ended in the final evolution of a rational procedure.

If we turn from adjective to substantive law we can see that the commercial character of these tribunals similarly affected the nature of the law which they administered. No doubt a considerable number of the entries on the records of the fair courts are taken up with recording the presentments of the juries charged with bringing to justice those who had offended against the peace and order of the fair. Many of these entries do not differ from the presentments of similar juries in the boroughs and leets of the country at large. But such presentments as those

proximam curiam ad ducendum et probandum, et defendenti ad audiendum probaciones querentis... nisi forte sectam suam ad illam primam curiam adduxerat paratam; quod si fecerit statim admittantur et examinentur: quæ examinatio sic fiat"; each witness is sworn separately to speak the truth; "Et tunc examinetur per sensescallum Curiæ in aperta audiencia parcium et totius curiæ et irrotuletur ipsius probacio . . . et ita post modum successive examinentur et jurentur omnes adducti quilibet per se separatim. Et si Senescallus et curia suspicionem habeat quod hujusmodi adducti sint locati vel subornati ad dicendum falsum tunc nullus eorum audiat alternis examen "; cf. Red Book of Bristol i 79, 80.

1Ibid 65, "Et si demonstrationem suam probare poterit cum tribus testibus notis et fide dignis et sufficientibus, tunc recuperet secundum quod probaverit, nisi forte defendens offerat et novam securitatem inveniat ad convincendum querentem in forma quæ subsequitur."

2 Ibid 79, 80, "Queratur a defendente antequam judicium reddatur si aliquid pro se habeat vel dicere sciat quare secundum probaciones illas ad judicium procedi non debeat. In quo casu est ordinatum quod defendens ille in sua propria persona tunc sit ibi et offerat se paratum ad reprobandum et convincendum querentem seu petentem et sectam esse perjuros; the proper forms as to finding security and the like having been complied with, "Tunc uterque potest adducere, scilicet querens (sc. defendens) ad convincendum, et defendens (sc. querens) ad efforciandum, primam sectam suam productam. Et ille cujus probacio extunc melior et verior comperta sit habeat judicium pro se . . . ita tamen quod convixio sive attincta pro nullo habeatur nisi ipse qui convictus est excedat eum qui convincendus est in numero per duos testes ad minus."

8 Vol. i 334-336; vol. iii 648-649; vol. iv 516-518; Pt. II. c. 7 § 1. 4 Vol. ii 389-391.


which relate to forestalling,1 selling out of the fair, selling without making a proper display of one's goods, or using false measures, are naturally prominent. No doubt, too, a certain number of entries relate to ordinary torts-theft, assault, trespass and so forth. But here again some of these cases illustrate the commercial character of the fair. There is an action in tort for impeding a sale; (and other notable examples are to be found in actions for defamation whereby the plaintiff has suffered in his trade and credit.") By far the most important of these entries, however, relate to commercial contracts; and it is assumed that the litigation concerning these contracts will be conducted in accordance with a law merchant made and administered by the merchants native and foreign who come to the fair. The king had promised the foreign merchants in 1303 that their disputes should be speedily settled by such a law; and, considering the large number of various cities represented at the fair of St. Ives,8 and doubtless at other important fairs, it will be clear that it was only a law, from which national technicalities were as far as possible eliminated that would suffice for their needs. If we could understand the nature of this law administered in the English fair courts we must glance rapidly at some of the cases recorded on their rolls.



As we might expect, cases turning upon the contract of sale are the most numerous. The contract was generally made by the agreement of the parties evidenced by the gift of a God's penny or earnest money." The mode by which it was enforced

1 Gross, op. cit. i 48, 92, 93; for the common law as to forestalling see vol. iv 375-379.

2 Gross, op. cit. 21, 56, 78.

3 Select Pleas in Manorial Courts (S.S.) 149, 153, 154; Gross, op. cit. i 19, 40,

62, 74. Ibid 17; at p. 97 there is an action of trespass in which the plaintiff asserted that, having bought certain salmon for 248., the defendant “ de dicto barganio ejecit the plaintiff, and bought them for 28s.

Ibid 13, "Et insuper defamavit ipsum Johannem versus quosdam mercatores, per quam defamacionem idem Johannes perdidit in mercandisis suis faciendis ad valenciam duodecim denariorum ad dampuum et vituperium suum dimidie marce ; 57-a slander" per quam famam perdidit creanciam "; 85—a similar allegation. 6 Vol. i 536.

7 Carta Mercatoria, Munimenta Gildhallæ (R.S.) ii Pt. I. 206, 207, "Et si forsan super contractu hujus modi (i.e. contracts between merchants) contentio oriatur, fiat inde probatio vel inquisitio, secundum usus et consuetudines feriarum, et villarum mercatoriariarum ubi dictum contractum fieri contigerit et iniri. . . . Item quod omnes ballivi et ministri feriarum, civitatum, burgorum . . . mercatoribus antedictis... celerem justitiam faciant de die in diem, sine dilatione, secundum legem mercatoriam, de universis et singulis quæ per eandem legem poterunt terminari."

8 Thus in 1312 we read of merchants from Louvain, Diest, St. Troud, Bruges, Ypres, Ghent, St. Omer, Caen, Dinant, as well as merchants of the society of the Bardi and of the society of London, Gross, op. cit. i 91; cf. Select Pleas in Manorial Courts (S.S.) 134.

The validity of these forms had been recognized by the Carta Mercatoria, Munimenta Gildhalla (R.S.), ii Pt. II. 206; see Gross, op. cit. 39, 40, 79; at p. 103 both a God's penny and earnest money are given.

was the action of debt in which compurgation played a large part. But we have seen that this primitive procedure was rendered more rational by the power of the court to examine witnesses; and that the case was sometimes decided in quite a modern fashion according to the impression made on the court by the evidence thus given.1 We can see too that certain rules relating to the incidents of this contract, which were afterwards incorporated into the common law, were being evolved. Damages for the defective quality of the goods sold could only be got if seller had warranted their quality; and similarly damages could be got if the goods had been warranted equal to sample and had failed to come up to the sample. As in the later common law, the failure to fulfil such warranties was regarded as a species of fraud.1 There seems to be no evidence as to whether a purchaser from a seller who was a non-owner could get damages if he were evicted. Judging from the analogy of the law as to defective quality, and from the later common law as to liability for defective title, it is probable that he could not, in the absence of an express warranty. There is more evidence as to the rights of the true owner against the purchaser of his goods; but it is conflicting. It would seem that, though, in the interests of commerce, both borough and fair courts were inclined to protect the purchaser, no certain rule had as yet been involved. At any rate, in 1332, it appears that proof of the plea of purchase in market overt, though it was generally recognized as a defence against a charge of theft, did not necessarily secure the purchaser's title. In England, as on the Continent, the customs on this matter were very various. Eventually, as we have seen, English law decided to admit that the proof of such a plea gave a good

1 Above 107-108.


2 Gross, op. cit. 60-sale of cheeses which the vendor "pledged to be good and fit to eat"; cf. the Lancaster custumal of 1562, Borough Customs (S.S.) ii 153, " Also that they which bye any malt on the markett or elsewhere within this towne, lette their eye be their chapman, for yf it prove nought, thei shall have no remedie for it afterwards, except thei can prove the seller thereof dyd warrand the same to be good." 3 Gross, op. cit. 91, 102, 105-106.

Vol. iii 408; Pt. II. c. 5 § 6; cf. Gross, op. cit. 50, 91, 102, 106; frauds could also be presented and tried by an inquest, see ibid 62-a charge of selling with false measures, and of mixing Rhenish with white wine to defraud the merchants.

5 Below 297.

6 Gross, op. cit. 48, 49-a bona fide purchase in the market was accepted as a good defence to criminal proceedings for theft, and the purchaser was allowed to keep the goods.

Ibid 110, III-W. found in S.'s stable a horse which he alleged to be his. He caused it to be seized by the steward of the liberty. S. brought the horse to court. S. and G. in court showed that G. put the horse in S.'s stable; and G. claimed to be owner as he bought it "in pleno mercato." The court decided that W. could not proceed against G. by seizing the horse-" ideo dictum est ei quod sequatur in alia forma si sibi viderit expedire."

8 Above 98-99, 104-105.

« VorigeDoorgaan »