COMMERCE AND ITS REGULATION Florilegium Urbanum


Keywords: medieval Bristol Colchester judicial administration merchants law piepowder justice pleas fairs market court trial procedures surety attachment distraint essoin oath record keeping scribes seals apprentices shipwreck offences contracts debt detinue
Subject: The law merchant
Original source: 1. Bristol Record Office, MS. 04718 (Little Red Book), ff.22-30; 2. Essex Record Office, D/B 5 Cr68, m.21d; 3. Public Record Office, Court Roll 175/23 m1.
Transcription in: 1. Francis Bickley, ed. The Little Red Book of Bristol, Bristol, 1900, vol.1, pp.57-85; 2. and 3. Charles Gross, ed. Select Cases Concerning the Law Merchant A.D. 1270-1638, vol. 1, Selden Society, vol.23 (1908), pp.122-25, 131-32.
Original language: Latin
Location: Bristol, Colchester
Date: 14th to 16th centuries


TRANSLATION


[1. Fourteenth-century treatise on the Lex Mercatoria]

[cap.1] Here begins the law merchant: what, when, where, between whom, and concerning what it may be

The law merchant is considered to pertain to commerce, and therefore what must first be understood is where there takes place the commerce to which laws of this kind are applicable. In this regard we may note that such commerce occurs in just five types of places; that is, in cities, at fairs, in seaports, market towns, and boroughs. Furthermore it follows from this that, just as commerce occurs in five places, there too it is accompanied by the law merchant, or commercial law, since in cities and fairs, or marketplaces buying and selling of merchandize – of clothing, victuals, and just about all kinds of moveable goods – goes on there on a daily basis. Consequently this law is administered there with the same regularity as commerce takes place, along with attachments and adjournments allowed by this law from hour to hour, both before nine o'clock and after nine, or from day to day consecutively; that is, from Monday to Tuesday, and from Tuesday to Wednesday, unless the parties agree to a longer or shorter adjournment. At ports, provision for attachments or adjournments is similar, corresponding to how things for sale are brought to or taken from the port – that is, from day-tide to day-tide (nocturnal tides ought not to be taken into account). In market towns and boroughs attachments and adjournments should be made from market session to market session. All types of pleas can be naturally entertained under these laws, excepting pleas of land. But if the lord [of the court] and the parties to suit brought in those places would prefer to initiate, prosecute, and conduct suits in other courts, by common law, and to decline the law merchant, they may certainly do so by common accord, as elsewhere in the kingdom.

[cap.2] In what way the law merchant differs from common law

The law merchant differs from the common law of the realm in three ways. The first is that proceedings are generally tried more quickly. The second is that whoever acts as surety for a party to respond to a charge of transgression, contract, debt, or detinue of chattels, is surety for the entire debt, damages, and expenses due the plaintiff. Should one's surety be convicted and not be found sufficient within the bounds of the market, or if perhaps that surety were first attached by a pledge, or by chattels, and afterwards that pledge were removed or released by the reeve of the market beyond the bounds of the market, the surety may render an account of this kind of pledge, or its value, to the court or to the plaintiff. The third difference lies in that no-one is admitted to do law for the defendant; rather, under this law [merchant], it is always for the plaintiff to prove his case, whether by suit, or by the facts, or in other manner, and not for the defendant [to prove his innocence]. In regard to other [procedural] matters, such as prosecution, defence, essoins, defaults [of appearance], delays, judgements, and execution of judgements, the same procedures are observed as in other law. It should be understood that whoever buys anything from, or conducts any exchange with, a merchant – whether the purchaser, or he who makes the exchange, is a merchant or not – (provided however that the item is of his merchandize, or his to trade), if the buyer does not appear to answer the merchant on the appointed day, he is obliged to respond to the merchant according to the law merchant wherever he can be apprehended or attached within the bounds of the said five places. The same rights apply if the merchant fails to appear on the appointed day to answer another, whoever that other may be (whether merchant or not); unless it should be that the parties agree that they prefer to plead according to common law, in cities or in places where courts are held outside of fair-time, tides, or market sessions and in which the common law is administered.

[cap.3] Concerning pledges for prosecution and orders for attachment

Adam Bernard, wool merchant, draper, or linen-draper, or else merchant of wools, horses, cattle, butcher, fishmonger, baker, and so on, on Monday the tenth of July, [appeared] before the sheriff, if this is in London, or, be it at the fair, before the steward of the fair, or before the reeve of the market if it be in a borough, or before mayor and bailiffs, if it be in a city, in the presence of Bernard Clement and Clement Denis, and found sureties (for example, Bernard Adam and Denis Clement. citizens, merchants, burgesses, or other men of the place capable of being distrained within the bounds of that market) versus Denis Bernard in regard to his suit that he render to him £20 which he owes him and unjustly detains, as he alleges. And therefore the reeve, or other bailiffs, have been ordered that they require him to provide pledges or reliable sureties for the aforesaid Denis, that he appear [in person] before the sheriff, bailiffs, or steward of the fair in the tolbooth, or in the guildhall, or in the market-booth, on Tuesday next to answer Adam in regard to the suit that he render to him the £20 etc. It should be known that the instructions directed to the bailiffs should be as follows: It is ordered that the bailiffs of the fair, or the reeve of the market, require Denis Bernard to provide pledges or reliable sureties for his appearance before the steward of the fair, or the market, on Tuesday a specified date in the moothall to answer Adam Bernard merchant in regard to a suit that he render to him £20 which he owes him and unjustly detains, as he alleges; and that they have there the names of the sureties and these orders.

[cap.4] Concerning essoins and judicial consideration of essoins

Adam Bernard merchant, versus Denis Bernard in a plea of debt, [is essoined] by Adam Clement. When that essoin must be judged the judicial practice follows the common law in all regards, such as giving attention to the attachment or the plea in lieu of a writ, and then first that the name and cognomen correspond, and what rights there are in this kind of case – so that if the case is one of debt, that the essoin relates to debt, and so on. If this is all is it should be, then attention is given to whether it is the plaintiff or defendant who is essoined, and an interlinear note is to be made that the plaintiff or defendant has been essoined, so that this can be easily determined when [the record of] the case is inspected; and if this is the first essoin that is to be noted in the margin of the roll [....]

[cap.5] Concerning attachments by pledge or sureties who fail to appear; procedure in regard to attachments and sureties

If those to be attached are present when attachments are made, so that the case can proceed (or it is evident enough that they are able to proceed), but on the day when they are to come to answer in court they default in so doing, then there is to be taken against them the process specified at the end of the chapter concerning essoins, and [continued] for as long as distrainable objects belonging to them or their sureties can be found, until they come [to court]. When no further distraints of this kind can be found, nor do the attached persons respond to formal summonses made at the next two court sessions, then at the third session (if they still do not come) plaintiffs are to be permitted to put their case and prove their claim or complaint in the absence of he who has been attached by such goods or merchandize. If they prove their case, the defendants will be held to be convicted; then the latter's goods and chattels are to be immediately appraised by three to six reputable and law-abiding merchants – or more if necessary, depending on the quantity of attached goods and the work-load – who are under oath and not suspected of partiality to either party, and at the determined value are to be delivered to the plaintiff in the sight and by the witness of those appraisers. And any that remain are to be kept secure in the guildhall or in some other location protected by the lord of the court, under the seal of the appraisers; which are to be handed back to the convicted party when he requests it, with the exception of an [amount to cover] amercement due the lord of the court and also reasonable [costs for] custody of the attachments. [...]

The law merchant must operate on the assumption that a merchant makes his living, and ought to do so, through his moveable goods and merchandize [....] If those who are attached are not present, not being within the realm but in distant parts, and this is sufficiently evidenced before the steward and the court, or perhaps alleged by some friend, apprentice, or employee that his master, who is attached or whose goods are attached, is in some particular location or in the vicinity of some location, or within the realm, then the steward and merchants of that court, at their discretion, may assign him a suitable amount of time within which he can reasonably return from that location; so that if he cannot come within two days, he may have three, and [if not] within three he may have four. [...]

[cap.6] Concerning the recovery of debts without documentation or tally, and not waging law.

If someone is attached to answer for an unpaid debt, for a contract or transgression, or any other kind of plea covered by the law merchant, and at the opening of proceedings the defendant disputes that the plaintiff may have a debt, is prepared to oppose the action, and wishes to defend himself by waging his law (that he owes him no money etc.), this may in no way be permitted. The reason being that it very frequently and notoriously results in delays, and consequently costs, to merchants, their goods and their merchandizing, whether retail or wholesale, and whether they have tallies or documentation or not, as well as to the employees, servants, or apprentices of the merchants, delegated to conduct commerce with the goods of their masters, for the advantage and profit of their masters. At the same time it can be a stressful, frustrating, and burdensome, hindrance to them, particularly to those traders in victuals who retail their goods in diverse locations at different times and hours of the day, without the tallies or writings that ought to be provided them.

So that when a defendant comes into court and explicitly and completely denies the plaintiff's claim or accusation made against him, the plaintiff is then assigned a date at the next court session to proceed with and prove his cause, and for the defendant to hear what evidence the plaintiff has and subsequently to present his case in defence of his side, if he considers that expedient, unless he has come prepared to that court session bringing his supporters with him. Which, if he has done, are to be immediately admitted and examined. Which examination of the first one put forward shall first be preceded by him swearing in the following way: "Hear this, steward and merchants of this court, that I shall speak the truth of those things about which I am questioned concerning a certain debt that Adam Bernard merchant seeks in this court against Bernard Adam (or, concerning a certain contract which Adam Bernard is alleged to have made with Bernard Adam merchant and, unjustly, not fulfilled; or, concerning the detention of certain goods, chattels, or merchandize of Adam Bernard merchant which Bernard Adam is alleged to unjustly detain; or, concerning a certain transgression against the peace which Adam Bernard alleges that Bernard Adam committed against him in this town; and so on) concerning which I shall speak no falsehood, so help me God and all his saints." Nothing is to be added to try to enhance credibility, but he is simply to swear to tell the truth, upon his peril. And then he is to be examined by the steward in open court, and the gist of his evidence recorded on the court roll. After which all the other supporters are to be sworn and examined, each one separately. If the steward or the court is suspicious that these supporters have been paid or suborned to lie, then none of them may hear their fellows examined; rather, while each of them is examined, all the others are to be kept outside the court-room. But, if they should be trustworthy men and none of them appears suspicious, it is perfectly acceptable for each of them to hear the examination of the others. If there are designated any witnesses who withdraw and are unwilling to come of their own free will, but are distrainable within the area of jurisdiction of the steward of the fair or market, the bailiff is to be instructed to force him to come (or them, if there be more than one), and they are to be distrained and deprived of their livelihood until they make an appearance, as is done under common law in the cases of merchants.

If the plaintiff is unable [immediately] to designate witnesses who are distrainable within the bounds of the market, he may bring his witnesses with him within the space of three court sessions, given that at the third session he has to present his evidence; unless he has fully proved his case before or at the third session, the defendant may depart from that place absolved, and damages for the defendant will be adjudged at the discretion of the merchants of that court, taking into account his costs of accommodation, delay [to his schedule], other expenditures, and the inconvenience which the defendant underwent as a result of this kind of attachment made on him. And thereafter he may not, in any merchant court, be obliged to take the role of defendant in answering the plaintiff as regards the same complaint, for any reason, before having been fully satisfied for those damages. Notwithstanding which, once those damages have been awarded to the defendant, they are to be promptly levied and paid to him in a full court session. Once the action and the execution [of the judgement] have been concluded, the parties may, if they wish, have a transcript of the record concerning them on the court rolls of the fair or market, under the common seal of the same. This is so that they may call on the [official] record and have it admitted [as evidence] if some later occasion requires it or they have need of it for some reason at other fairs or markets. For this copy the clerk of the market is always to be paid a penny per every ten lines, and 4d. for [applying] the seal.

If he is able to prove his case by presenting the evidence of three witnesses who are known to be trustworthy and qualified, then he may recover what he has proved [to be his by right], unless perhaps the defendant offers and finds new sureties for convicting the plaintiff or appellant and wages his law in the form indicated below [in cap.20 "Concerning attaints"]. Damages and expenses in a plea of debt, or any other where the plaintiff recovers by proving his case, are to be adjudged by the merchants of the court, and not by the witnesses. But in any case in which the fair or market has the authority to take a full cognizance of the truth, so that it may be appropriate for the parties to be submitted to an inquisition, then in such a case they [i.e. damages] are to be adjudged by the inquisition [jury], rather than by the merchants of the court.

Yet if the defendant does not make a straightforward denial of the plaintiff's accusation, but acknowledges that he was at some time obligated to the other in such a debt, and that he had at a prior date satisfied him thereof (or the same thing in regard to a contract, detinue, or other accusations such as transgression committed or other pleas belonging to a merchant court), he is to be given a chance to offer his proof, to the same extent that he previously would have been when he was defendant, though now because of this kind of response he has become disputant. It is to be understood that whoever fails [in his proof], whether the plaintiff or the defendant, always becomes liable for the damages and costs associated with the judgement rendered.

[cap.7] That merchants are answerable for goods placed in the charge of their apprentices or agents

Because it frequently and commonly happens that apprentices or agents, who publicly and openly conduct commercial transactions for their masters, make arrangements to lend or borrow money, goods, or merchandize on behalf of their masters; which apprentices or agents, when acting by themselves and not with the masters who have delegated them, may entirely fail to deliver the goods. Under such circumstances the provision is that the master of such apprentices or agents should be answerable in the same way for such goods and merchandize, in whatever fashion they were to be delivered by the hand of such apprentices and agents, and precisely as if those same goods or merchandize were being received from his own hands. [...]

[cap.8] Concerning the goods of merchants or others at risk of wreck of the sea

Concerning wreck of the sea the consensus is that if any man, dog, cat, or other living animal escapes alive from the ship or boat, then neither that ship, or that boat, nor anything in it can be considered as wreck. Rather, everything [recovered] is to be placed in custody and safekeeping, under supervision of the sheriffs and coroners or bailiffs of the place or jurisdiction. If goods of this kind fall into the hands of locals of the vicinity in which they are found, they are to be returned without delay to whoever, within a year and a day, sues for them and is able to prove them to belong to him or to have been in his custody when they were exposed to peril. If no-one sues for them within a year and a day, then they belong to the king and are to be recovered from the locals by the aforementioned officials, who are to account for the same before the king's Justices of Wreck. [...]

[cap 9] Concerning those who hold real estate within the bounds of the said five places

If either party to a plea is a feoffee and resident within the bounds of the market and claims that, on those grounds, he is not required to answer within those bounds except by common law, because he is distrainable at any time, or alternatively if this is argued by the plaintiff but the other party requests and insists on the law merchant, then he who seeks the law merchant is always to be listened to, whether plaintiff or defendant; and the plea is to be conducted according to the law merchant, since the common law is both the mother of the law merchant and its daughter in regard to certain privileges and the particular places where it is in effect. One [party] cannot deprive the other of something which had previously been bestowed in perpetuity. So it may be said, to sum up, that in all of those five places the law merchant is always applicable unless both parties clearly and expressly consent to use of common law.

[cap.10] Concerning exceptions against witnesses or oath-swearers

The parties to an action, when the defence goes to an inquisition, may put forwards challenges against oath-swearers, just as is the case under common law; if a declared challenge contains reasonable cause, then a particular oath-swearer should not be accepted. For reasons such as: that he is [to the opposing party] a relative, a member of the household, a tenant, a feoffee, a liveried follower, a servant, the commercial agent, the apprentice; that they are members of the household of the same lord; that he is hostile to the challenger; that he is orchestrating or instigating the action on behalf of the opposing party through a conspiracy between them; that he is influenced in some other fashion, through power or jurisdiction the party has over him, so that he is neither willing nor dares to speak the truth; and so on. And let there be an attachment made, just as in common law. But otherwise there cannot be exceptions made to any witness brought in, nor should they be rejected, so long as they are free men of good reputation, and he [i.e. the party] and his supporters are [economically] sufficient to satisfy the opposing party for damages and expenses, should it happen that following the prosecution they are convicted of perjury. [...]

[cap.11] Concerning contracts, loans, detentions, and transgressions made outside the bounds of the market

When a plea is introduced in court or the marketplace concerning something done outside the bounds of the market, this is not a reason for refusing to try the plea there, if he who intends to prosecute or defend the action is capable of making his proof there by fact, or through supporters or suitable witnesses.

[cap.12] Concerning rendering of judgements

In all market courts each judgement should be rendered by the merchants of that court and not by the mayor nor the steward of the market. [...]

[cap.13] Concerning the execution of judgements

When in a market place judgement has been rendered according to the law merchant, immediate execution may be requested; which execution is the responsibility, first and foremost, of the lord of the market or the lieutenant of that lord in the market, and secondarily of the suitors to the market court. Which is to say that if the bailiffs of the market, who ought personally to undertake this execution, once they arrive at the place where they should do so, encounter resistance so that they are incapable of carrying out in a peaceable manner that judgement formally delivered to them, then the bailiffs should obtain, from the good men of the neighbourhood (or others), witnesses to the resistance offered; and they should promptly advise their superiors of the same. So that if this resistance if offered before nine o'clock, the mayor of the market be informed at such hour as the market court can be summoned and convened in its tolbooth at a specified time after nine o'clock, or as soon as a sufficient number of suitors can be had to permit deliberation of this case by the officials of the market. Then immediately the mayor and the court shall elect from the merchants and others of the court 12 reputable men, more or less (as necessary), to accompany the bailiffs there and carry out full execution. Should they then encounter any physical resistance, they are to raise the hue on any who resist, arrest them, and hold them in the king's prison, if the market has one, or in the lord's prison if not, and not to release them until they have made amends to the lord for their resistance and have satisfied the party on whose behalf the others were impeded or harmed by this resistance. [...]

[cap.14] In what manner distraints should be taken and kept in custody

When a person is to provide assurances for prosecuting another and is ordered to attach himself through a pledge or sureties, but is perhaps unable or unwilling to find pledges, yet he has sufficient goods and chattels by which he can be attached – such as horses, cattle, sheep, or other kinds of livestock capable of being led or driven, or possessions of whatever kind that are transportable by hand or on the back, or by cart such as sacks of wool, fardels of cloth, lead, wax, or other goods of any kind (given, however, that he not be distrained by goods or chattels from his chamber while there is sufficient that can be found outside his chamber by which to distrain him) – then the bailiff may demand or insist that the person so ordered designate distraints to be taken, and he ]i.e. the bailiff] shall lead, drive, or carry such attachments away from that one's possession. He is to retain them and keep them safe, in the communal location assigned for the custody of this kind of distraints, while the lawsuit is in process or until they are satisfactorily replevied. Yet if it is not practicable to remove or carry away bulky distraints without great trouble or risk of damage to them – such as grain in a granary, or crops in a field, hay, beans, peas in a stack, or that sort of thing – then, under the view and witness of reputable men of the neighbourhood, they are to be placed under arrest [or?] in some enclosure at the location where they are found, so that nothing of them may be removed until the arrested or enclosed goods are handed over by judgement [of the court]. If anyone breaks, or arranges to have broken, the enclosure or the arrest, or anything is removed of those goods thus enclosed under the name of distraint or placed under arrest, the bailiff is at once to advise his superior of the fact, and the latter is to summon a court session without delay, etc. as in the case of resistance in chapter 13 above. [...]

[cap.15] Concerning the places for [keeping] distraints

In every market let there be a particular place, within the bounds of the market, city, fair, port, market town, or borough, where there is a built structure, enclosed and with a tiled roof, suitable for placing all kinds of distraints that are taken, and for keeping them secure and safe from the risks of inclement weather or theft. Such a location should be suitable, soundly built, surrounded by good walls, but pierced by openings or windows through which anyone who is outside can view his distraints. [....]

[cap.16] Concerning the provision of transcripts of pleas to either party

It is ordained that the clerks of the markets provide transcripts of pleas to each and every person who is a party to those market pleas, if they request it, receiving for the same always a penny per ten lines [of text]. Such a transcript is to be signed with a fixed and known sign of the clerk, which sign is never to change. And the [personal] name and cognomen of that clerk is to be inscribed on that transcript, along with the sign, so that what is provided cannot be rejected by others.

[cap.17] Concerning the seals of fairs and markets and their custodians

It is decreed that every market have a common seal, and that this seal be handed into the custody of the lord or steward and four of the honest, loyal and sufficient men who hold property in that market (more or less, as consensually decided by the community of the market). This seal is to be kept safe in the church [of the market] or in some other protected place where the community may access it for official use, where it is always to be [secured] under the private seals of two or three persons other than those who hold keys to the coffer or chest which is its repository. There ought to be engraved on this seal the following, assuming it to be a city or place with the privilege or custom of having a mayor: "Seal of the mayor and city of London. For fairs and markets." And something comparable for other places. If they have no mayor, but rather a lord, their lord should not be named in the same way as the mayor in the engraving on the seal, for a mayor is a member of their community whereas a lord is above the community; their engraving should be thus: "Seal of the town of St. Alban's for the market". And likewise expressed for market towns; or, if they have a fair, let it say "for fairs and the market".

[cap.18] Concerning the clerks and rolls of the lord and suitors of the market

It is provided and decreed that in all merchant courts the lord or mayor of the court may have his own clerk and his rolls recording each and every lawsuit tried, and those rolls may be kept in his own possession. And the suitors, or community, of that court may have their own clerk and the rolls he produces. It should be understood, both by the lord and by this community of suitors, that the adverse consequences of a false judgement are incurred by the suitors, and not by the lord, because it is the suitors who have the duty to render all judgements of that court, and they cannot do a good job without having, in their own interests, a roll drawn up to refresh their memories of [past] judgements they have made as a group. From this perspective the roll of the suitors of the court is the primary record, and the roll of the lord or mayor of the court is a secondary, or control, record. Should there be any doubt as to why the mayor should have possession of the counter-roll, seeing that he is a member of the community, know that it is because he is elected to represent the lord and stands in for the lord in that court. Similarly, because the mayor has a commitment to the truth, uncertainties or frauds will not interfere, so that the two rolls drawn up and written by those present will agree on the facts. [....]

[cap.19] Concerning sureties of apprentices

In regard to apprentices, or merchants who loan goods or merchandize to magnates, those who live far away, foreigners, or others, from whom neither they nor their masters are able to obtain restitution of those goods, it is ordained and decreed that if they have done this contrary to the terms and conditions of their masters' instructions to them, then they must answer, in person or by sureties, for damages and losses the masters have incurred through such loans. Unless perhaps the contrary was specified in writing concerning this kind of pledging, in which case the plea of contract is to be enforced with all the laws pertinent to a contract.

[cap.20] Concerning attaints

Attaint is not allowed by mercantile courts under the law merchant, except when by royal writ the parties go to a market inquisition, because they have agreed to this kind of jury or inquest, have complaints about the [verdict of the] merchants, or wish to proceed by the common law of England. However, in a case where the prosecution or the defence has been proven, or supporters have been examined in the full hearing of the entire court (which examination should be carried out principally by the steward and two judicious men of the court, elected for that purpose by the court), before judgement is rendered the defendant should be asked if he knows any reason or has anything to say as to why, based on the evidence given, [the case] should not proceed to judgement. In this situation it is required that the defendant be present in person and shows himself ready to refute the plaintiff or claimant and to argue that his supporters have committed perjury, in the following fashion. First he swears an oath that the accusation or claim that his adversary makes against him is unjust and false and that those whom he [i.e. the plaintiff] has brought with him, or have been made to come with the assistance of the court (naming each of them individually), have, for their part, given false evidence under oath; and that he intends to, and firmly believes he can, demonstrate this to them and will do his best to show it as so. Nevertheless, he next must offer assurance that he will proceed both against the adversary and his witnesses, providing good pledge and sureties [sufficient to cover the amercement and damages, if he fails in his defence]. [....]

[cap.21] Concerning writing to other courts

When an action between parties is introduced into a merchant court and one party, in putting forward a response or exception, declares: that the same matter between the same individuals was previously introduced as a plea in the city of Winchester, or at the fair of St. Giles at Winchester, or in the town of Southampton, or elsewhere, in which city, fair, or town the plaintiff in full court was adjudged, by the decision of that court, damages against the defendant, which judgement was there fully executed; or that he engaged him there in a plea concerning the same transgression or debt, and that they had reached a settlement of the matter there, which he acknowledged in full court, but that the written record of this he (through poor custodianship or negligence) he has lost [...] and he calls on the rolls of that court as his warrantee or proof. [...] In such a case it is ordained that one court should write and send to the other [...] along the following lines:

The mayor and citizens of York, along with the community of that city, send greetings to their good friends and neighbours the mayor and citizens of London, and the honest folk and community of that same city. Adam Bernard merchant has been attached in our guildhall to challenge Bernard Adam by merchant law, concerning a plea that Bernard pay him the 40 pounds which he owes him for a certain bay horse that Adam sold to the same B. in Smithfield, at London, on Friday 15 March 1282, and which he should have paid him at the next feast of St. Botulph [17 June], at the fair of the same place, but it is alleged he has not yet paid it. Upon which the said Bernard appeared in person there in the court and acknowledged that he sold him a certain bay horse, at the place and time specified, for 40 pounds, but that he paid Adam that 40 pounds at Boston and had from him a written acquittance there; he has put forward [in evidence] in the said court this acquittance, which has six named witnesses (each and every one of them property-holders and residents within the liberty of Boston, it is alleged), and is dated at Boston on 18 June 1285. Which acquittance, having been seen, read, and understood, and fully inspected by the said Adam, he was asked whether the acquittance was of his doing. That question he referred to the witnesses named in the acquittance and to the locality where the acquittance was issued. But Bernard says he ought not to be permitted to do this; for, he says, he was elsewhere attached – that is, on 13 June 1283, in the city of London – to respond to Adam for the same debt by merchant law and custom before the sheriffs of London in the guildhall there, that he came there and and in full court in the course of the lawsuit against Adam he put forward the acquittance, which then and there was read and understood both by the court and by Adam, who completely disavowed it and denied he had ever made the acquittance, and then as now referred that question to the witnesses named in the same, as well as other reputable and law-abiding men of the vicinity of Boston. And because neither those witnesses nor any other reputable men of the vicinity of Boston were within the jurisdiction or liberty of the city of London, the said Bernard [armed with a letter from the London guildhall, obtained a law merchant court session at Boston where the six witnesses and six other reputable men of Boston were examined under oath and eight of them testified that they had been present when the acquittance had been by Adam made, sealed, and delivered to Bernard, while the other four testified that it was Adam's acquittance to the best of their belief. This testimony having been conveyed to the London court through a sealed letter, the court decided that Adam should recover nothing from his plaint, but that he and his sureties were to be amerced and Bernard would be awarded costs and damages assessed at £10.] As to [the truth of] this he calls on the rolls of your guildhall to back him up, since in this kind of case neither common law nor merchant law permits either party to be acquitted or convicted by a final judgement. Hence we are asking you, on the basis of reciprocity, to search through your rolls and memoranda and send us without delay a private letter under your common seal containing the gist of anything you happen to find on this matter, so that we, after inspecting and understanding it, may do in this plea what needs to be done according to merchant law and custom. Written at York on 13 August 1286.

[The chapter goes on to provide a variant form of a similar request, addressed to Parisian authorities.]



2. Pleas in the king's court of piepowder of the town of Colchester held there on 5 May 1458 at 8.00 a.m. in the moothall of the same town before William Saxe and John Sayer bailiffs of that town, according to the custom of the town used from time immemorial and by reason of the market held every day at various locations in that town.

Thomas Smythe comes to this court in person and makes a complaint against Cristian van Bondelyn regarding a plea of debt of sixty pounds ten shillings and ten pence. He finds sureties for prosecuting, viz. John Horndon and John Noke. Therefore, in accordance with the custom of the town, John Noke, one of the sergeants-at-mace of the town and an officer of this court, is ordered to summon the said Cristian by reliable summoners, so that he be before the town bailiffs at the session of the king's court of piepowder of the town to be held here in the moothall at 9.00 a.m. today, to respond to Thomas Smythe in the plea of debt. And the same hour of nine is assigned to Thomas here etc.

At which hour, at the king's court of piepowder of the town, held in accordance with custom here in the moothall before the bailiffs, Thomas Smythe comes in person to appear against Cristian in the said plea. The sergeant, John Noke, being present, testifies that Cristian has been summoned by John Goos and Nicholas Ravene. But Cristian, despite being having been formally indicted, does not come. Therefore in accordance with custom John Noke is ordered to attach Cristian by goods and chattels he has that are found within the liberty, so that he be before the town bailiffs at the session of the king's court of piepowder of the town to be held here at 10.00 a.m. today, to respond to Thomas Smythe in the plea of debt in accordance with the aforesaid custom. And the same hour is assigned to Thomas Smythe here etc.

And indeed at the tenth hour at the king's court of piepowder of the town, held in accordance with custom here in the moothall before the bailiffs, Thomas Smythe comes in person to appear against Cristian in the said plea. John Noke the sergeant testifies that Cristian has been attached, in accordance with the custom of the town, by his chattels; that is, by twenty-three woollen cloths. But Cristian, despite having been being formally indicted, does not come. Therefore in accordance with the custom of the town a first default [in appearance] is adjudged and recorded against him. And John Noke sergeant is ordered, in accordance with custom, to hold onto the attached chattels, rather than make another attachment on Cristian, so that he be before the town bailiffs at the session of the king's court of piepowder of the town to be held here at 11.00 a.m. today, to respond to Thomas Smythe in the plea. And the same hour is assigned to Thomas Smythe here etc.

At which hour at the king's court of piepowder of the town, held in accordance with custom here in the moothall before the bailiffs, Thomas Smythe comes in person to appear against Cristian in the said plea. John Noke the sergeant testifies that, as instructed, he has held onto the attached chattels rather than make another attachment on Cristian. But Cristian, despite having been being formally indicted, does not come at this time. Therefore in accordance with the custom of the town a second default is adjudged and recorded against him. And John Noke sergeant is ordered, in accordance with custom, to hold onto the attached chattels, rather than make a third attachment on Cristian, so that he be before the town bailiffs at the session of the king's court of piepowder of the town to be held here at 1.00 p.m. today, to respond to Thomas Smythe in the plea. And the same hour is assigned to Thomas Smythe here etc.

At which hour at the king's court of piepowder of the town, held in accordance with custom here in the moothall before the bailiffs, Thomas Smythe comes in person to appear against Cristian in the said plea. John Noke the sergeant testifies that, as instructed, he has held onto the attached chattels rather than make a third attachment on Cristian. But Cristian, despite having been being formally indicted, does not come at this time. Therefore in accordance with the custom of the town a third default is adjudged and recorded against him. At this, in accordance with custom, Thomas Smythe states that Cristian owes him and unjustly detains sixty pounds ten shillings and ten pence; that is, because the defendant, on 22 March 1458 at Colchester, in the town's East Ward and within its liberties, bought from Thomas sixteen woollen cloths for £50 13s. 4d., and that at the same time and place the defendant borrowed from the plaintiff £9.17s.6d., which sums add up in total to the amount he is now demanding, which was to have been paid him the following 23 April; however, although Thomas has frequently requested the amount, the defendant has not repaid it, but has refused to repay continues to refuse. As a result of which, he states, he has suffered loss and damage to the value of £10. Whereof, in accordance with custom, he produces suit, and he requests judgement in favour of his debt and his damages in this matter, in accordance with custom. Therefore it is the court's decision that Thomas Smythe may recover against Cristian his debt and the damages occasioned him through the withholding of the debt and for his expenses and costs in his lawsuit in this matter, set by the court, with the agreement of Thomas Smythe, at 26s.8d, based on the three defaults adjudged and recorded against Cristian, as above, in accordance with custom. And Cristian is to be amerced [a marginal note identifying John Nokes as pledge for an amercement of 6d.].

Upon this, instructions are given to John Botiller and Walter Moys, reputable and law-abiding men of the town then present in the court, to have appraised, in accordance with the custom of the town, the aforesaid twenty-three woollen cloths, and advise the bailiffs, at a session of the king's court of piepowder of the town to be held before them at 4.00 p.m. today, of the appraisal, so that the case may proceed etc. And the same hour is assigned to Thomas Smythe etc.

At which hour of four at the king's court of piepowder of the town, held in accordance with custom here in the moothall before the bailiffs, Thomas Smythe comes in person, and John Botiller and Walter Moys, being present, advise that as instructed in this matter they have had the twenty-three woollen cloths appraised at £61.4s. Upon which Thomas Smythe, in accordance with custom, finds here in court sureties, viz. William Smythe and John Sprynger, to respond to Cristian in the king's court of piepowder of the town, should Cristian within the next year and a day, in accordance with custom, wish to plead on the facts of the case against Thomas Smythe, and to do whatever further the court may decide in this matter. And he requests execution of [the judgement concerning] the debt and his damages [be made] to him from the aforesaid twenty-three woollen cloths, based on the appraisal made, according to the custom etc. The same are delivered to him in execution of the debt and damages, according to custom and based on the surety he has provided.



3. Pleas in the king's Tolsey court of his town of Bristol, held on 19 July 1518 in Bristol's guildhall according to the law merchant and usages and customs of that town, used and approved in that town from time immemorial, before John Reppe and John Drewys, sheriffs of that town, along with the bailiffs of the mayor and community of that town.

To this court John Warre comes in person and, in accordance with the law merchant and the usages and customs of that town, used and approved in that town from time immemorial, makes a complaint against David ap Rys in a plea of debt claiming sixteen pounds; he find sureties for prosecuting his lawsuit, viz. Thomas Went and Richard Kent. In accordance with law merchant, usage and custom, he requests process to be initiated against David ap Rys; that is, that David ap Rys be immediately arrested, without any summons or advance notice being given him in this matter, to respond to John Warre's plea, since David ap Rys is an outsider and not a burgess of the town, nor does he own anything within the town or its liberty whereby he could be summoned, attached, or distrained. Because, after due investigation of this issue, the court is satisfied that there is truth in the allegation of John Warre against David ap Rys, it grants John Warre the process he has requested. Therefore, in accordance with law, usage, and custom, at the request of John Warre the court instructs Thomas Phelipps, sergeant-at-mace of the sheriffs and of the bailiffs of the mayor and community of this town, within the town, and officer of this court, that he arrest David ap Rys if [he can be found] and keep him secure etc. so that he have his person at the next session of the king's Tolsey court of the town, to be held here at Bristol in the guildhall, before the bailiffs of the mayor and community of the town, immediately following the arrest of the same in accordance with law, usage, and custom, to respond to John Warre in the plea etc. Furthermore, in accordance with law, usage, and custom, the court instructs Thomas Phelipps, sergeant-at-mace etc. and officer etc., that, immediately after arresting David ap Rys as per his instructions, he is to advise John Warre to be here in the king's Tolsey court [etc.] ready to hear and do whatever the court shall decide in this matter.

[Gross summarizes the rest of the case: it is adjourned to 21 July, when the defendant is produced by the sergeant and finds sureties for his payment of any debt adjudged against him. There is a further adjournment until 28 July, when the court finds against the defendant.]



DISCUSSION

The first item given above represents selected (though substantive) extracts from an undated treatise on the lex mercatoria, of unknown authorship, which is divided up into twenty-one chapters with headings. Bickley believed the copy of the treatise entered into the Bristol register to be in a fourteenth-century hand. The Little Red Book itself tells us that its compilation was a communal initiative, assigned in 1344 to William de Colford, the first-known incumbent of the office of recorder of the city. Little is known of Colford, although he is mentioned in 1343 as one of the king's justices, and his duties as recorder centered on use of his legal expertise to assist officials presiding in the city courts and to ensure procedurality conformed with local and national laws; no-one else is heard of in that office until 1386. It seems likely that the compilation of a register containing reference documents, helpful both to himself and the other borough officials in the conduct of their duties, would have been a sensible task to undertake soon after he was appointed as recorder; and not unlikely that the treatise on mercantile law was a document possessed by Colford, rather than one already reposing in the borough archives. The text in the Little Red Book seems corrupt in a number of places (and presents consequent challenges for translation), partly through the copying process, although it is possible Colford made some deliberate adjustments.

Dating the legal treatise itself is more problematic. The Latin text uses the term prepositum mercati as a generic title for whatever officer may be responsible for supervision of the market. This usage might suggest the treatise to have been composed as early as the thirteenth century, but – so long as we assume the Bristol copyist did not make updates to his source – references indicating an assumption that cities would have mayors as their chief executive officer make it unlikely to have been earlier than the latter part of that century and a reference to the Statute of Marlborough (1267) in chapter 5 points to a terminus post quem, while other evidence suggests a slightly later date (see below). Even though the Little Red Book contains the only known copy of the treatise, there is no reason to suppose it was composed for that register, or that it represents solely the usage in Bristol. The text reads as though it could have been written by a lawyer with a national perspective, based at Westminster or London; it may conceivably have been produced shortly after Edward I took over the reins of civic government there in 1285, imposing a warden and a set of political, judicial and other reforms that included the requirement for any plea of debt to which a foreign merchant was party to be adjudicated by the law merchant; the dates in the letter from York to London are not necessarily to be taken at face value. A guide to 'best practices' of law merchant procedure would have been a natural concomitant of these reforms and a useful tool for the new administration. In the same fashion, Colford probably saw it as a potentially helpful guide to usage that was probably already partly, if not entirely, followed at Bristol.

However, despite a probable genesis at the capital of the realm, The treatise is evidently aimed at a rather wider audience, in identifying the different places where the law merchant might be administered, and the different titles of officials who might be presiding over courts at those places. As a guide to serve lawyers and officials presiding over piepowder courts, we must presume the treatise reflects at least some existing (though not necessarily standardized) court practice, yet it is also very possible that some elements represent procedural refinements introduced by the author, without distinguishing them as proposals rather than established practices – indeed, parts of the treatise read more like a critique than an exposition. Nor can the treatise be considered a comprehensive account of laws governing a wide range of trading practices, either in the modern sense of mercantile law or to the extent that borough custumals illustrate medieval commerce; it is concerned only with how piepowder courts would deal with legal disputes stemming from commercial exchanges or related civil offences.

Bracton's treatise on common law did not deal with any merchant law, but acknowledges in a couple of places to certain circumstances requiring accelerated procedurality, one such case being merchants from outside the territory of the court's jurisdiction, who would suffer injury from the delays involved in normal court procedure and so were provided with "piepowder justice". It likewise recognized that part of this piepowder procedure was greater urgency in having defendants appear to respond to charges and in making attachments. Gross summarized the revised procedure, as described in the Bristol treatise, as:

"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."
[Select Cases, p.xxvi].

This speed extended beyond the courtroom procedure to the execution of judgements in order to restore a successful plaintiff's goods or provide compensation from the goods of the defendant. Chapter 13 shows awareness that the losing party to an action might or might try to prevent execution by assaulting court officials, locking or barring the door to his house, locking his valuables in a chest, or making his merchandize difficult to access by placing it in sealed packs; the law merchant provided for prompt and increasing levels of force to overcome such resistance and compel defendants to make restitution or payment of damages.

The extracts given above begin with the opening sections of the treatise, explaining the essence of and rationale for a law merchant. The remainder of the treatise focuses mainly on procedural aspects, and is written in a style that provides concrete advice to officers of the court, perhaps particularly the clerks responsible for recording the course of the process; thus, for example there is discussion of essoins, not simply from the perspective of procedures but also from that of how they were to be recorded in the court rolls. Procedures were essentially the same as under common law, but the nature of merchant law was to speed them up quite considerably. For instance, if a defendant or his sureties failed to appear at the appointed court session, a formal summons was made at two subsequent sessions and, only if non-appearance continued to the next session after could the court issue an order to attach moveables or immoveables of the defendant, to pressure a subsequent appearance or, failing that, be appraised and sold to compensate the plaintiff who would win his case by default. This alone (without factoring in the delays achievable through essoins) could drag out the process by weeks, but with courts administering merchant law able to hold multiple sessions per day, the attachment stage could be reached in a more timely fashion. The law merchant also assumed that, in the case of merchants, attachments would target primarily their merchandize, rather than real estate.

The treatise mostly, and generically, refers to a steward as the president of the court, responsible for ensuring defendants are summoned, pleas are recorded, essoins and defaults are allowed, distraints taken if necessary, assembling all evidence, and executing judgements of the court; witnesses were usually examined by the steward. Judgements, in terms of decision as to guilt or innocence, were determined by whether the plaintiff was able to provide proof of his accusation (such as through valid documentation or evidence of witnesses) that the defendant could not convincingly refute. But it was rather the mercantile suitors to that court – locally resident traders of creditable reputation then present at the court session – who would pronounce judgement in terms of an assessment of sentence and/or damages; this made obvious sense, since those merchants were better placed to put a value on commercial loss or harm suffered, and it was easier to hold them accountable should an appeal of the case conclude there had been a false judgement. This use of suitors to pass judgements was an established feature of communal courts at all levels; but, in the case of mercantile courts, suitors' verdicts may have been based somewhat more on judgement of the facts, rather than which party has provided the superior form of technical proof required by the law.

We should not over-emphasize the role of the mercantile suitors; they provided a resource on which the court could call, but that court was very much under the control of the law of the land and the officials of the lord of the fair or market. Chapter 12 goes on to make provision for restitution to any party who suffered a financial injury through one or more ineligible persons, present at the court session, interfering in the formulation of a judgement; it was incumbent on the president of the court to know who could, or could not, be rightfully considered suitors of the court. It may have been partly this eventuality, and the risk faced by the suitors that their judgement would be challenged in an appeal to a higher court, which necessitated both components of the court – the presiding officer and the merchants suitor – having their own clerks to compile parallel sets of court rolls; although this duplication of effort was a common aspect of the approach to accountability within medieval government.

That the law merchant had at least some of its roots in customary borough practices would hardly be surprising, given that borough customs were much better oriented to a commercialized society than was the common law, even though they could vary from town to town. That source of inspiration is exemplified by the chapter on recovery of debts, in regard to the use of witnesses. Mary Bateson [Borough Customs, vol.1 (1904), pp.167-170] records several local customs that addressed issues (likely more widespread than surviving records show) dealt with in the treatise. A corrupt fourteenth century copy of a Bristol document whose origins might date back to the thirteenth, allowed parties to pleas of debt, contract, and transgression to prove their case through witnesses who had been present at the transaction which gave rise to the plea, so long as the witnesses swore to speak the truth (i.e. what they knew directly, rather than by hearsay) prior to being examined. The Laws of the Four Boroughs likewise required an oath from witnesses that they would speak truth, without being influenced by love of one party or hatred of the other. London records of the mid-fourteenth century reveal similar concern that witnesses be reliable, and provided for enquiry into their reputations should a party to a case object to a witness; it was noted that on a number of occasions witnesses in pleas of debt or contract had proven false, having been bribed and/or schooled in advance as to what they should say.

But the author of the treatise seems to be casting his net widely in his attempt to compile a set of legal procedures relevant to mercantile disputes. Much of the text is cast in custumal style. Yet the opening two chapters and certain other parts are written in treatise style, whereas the openings of chapter 7 ("Quia multociens et communiter contigit quod"), chapter 16 ("Ordinatum est quod"), and chapter 17 ("Statutum est quod") suggest specific pieces of legislation, and chapters 3 and 23 appear extracts from a formulary. The chapter concerning shipwreck – which is oddly mixed in among unrelated chapters dealing with court procedures – is a variant of chapter 4 of the first Statute of Westminster (1275), which has no direct relevance to the jurisdiction of any mercantile court; yet chapter 23 of the same statute, which does apply to cases of debt in the 'five places', is ignored by the treatise. Chapter 16's requirement of notarial authentication has more of a continental than an English ring to it.

Interest in a guide to merchant law may have been bolstered following the royal statute issued at York in 1335, whose opening chapter was a response to instances of native resistance to foreign merchants trading in England. The king ordered that such merchants be allowed to buy and sell without impediment or harassment. To give this teeth, he threatened that if borough officials failed to provide legal remedy to merchants who complained, they risked the suspension of borough liberties, and personally being liable to compensate a complainant with double the damages due. Yet, unless we include the Carta Mercatoria of 1303 in the category, the first explicit reference in statutory law to the law merchant is not until 1353, when chapter 8 of what is now known as the Ordinance of the Staple states that in the staple towns all disputes over mercantile agreements, or transgressions committed against merchants there, should be resolved by the law merchant, not by common law (which could still be used for disputes over real estate) or local custom. Chapter 19 of the ordinance offered a justification for this, while also moderating the principle stated in Chapter 7 of the Bristol treatise, declaring:

"That no merchant, or anyone else, whatever his status, shall lose or forfeit his goods or merchandize through the trespass and forfeiture of his servant – unless the latter acted by command or with the complicity of his master, or was carrying out the duties assigned him by his master, or from some other circumstance whereby the master should be held answerable for the deed of his servant according to the law merchant, as has elsewhere been the case. And because merchants cannot remain long in one place to transact commerce, it is desirable that speedy justice be done them, from day to day and hour to hour, according to the laws used in other staples elsewhere in the past, every time they wish to bring an action against someone, or someone brings an action against them, so that merchants are not maliciously delayed, through lack of speedy remedy."
[Owen Ruffhead, ed. The Statutes at Large, London, 1758, vol.1, p.281, my translation]

These provisions should be understood both in the context of the Edward I's determination to protect and encourage foreign merchants, and in that of the refocusing upon England of the system of staple towns through which key components of the export trade were routed. Chapter 20 of the statute ordered that offences committed against foreign merchants elsewhere than in the staple towns should also be dealt with by merchant law. The staples had their own administrative officers and mechanisms, so what was essentially being done by the statute was to extend the applicability of the law merchant to a sixth category of place, but give that category priority, so that any action to which at least one party was a staple merchant (or official) was to be tried in the staple court. Bristol was one of the English towns designated staples in 1353.

Thereafter the administration of the law merchant attracted little attention from the government, until 1478, when a minor elaboration was necessitated by instances of parties to contracts, debts, or transgressions that occurred outside of fair-time bribing the officials of piepowder courts operated during fairs (this being a period when fairs were declining, along with the revenues brought in by their judicial jurisdiction) to try their pleas with the speed of the law merchant. Statutory reforms required plaintiffs to swear that the matter about which they brought a plea occurred during fair-time, and allowed defendants to take issue with such a declaration; if the issue was found valid, the plaintiff had to find a court administering common law in which to bring his plea. Richard III's reissue of this statute indicates the abuse had continued. The decline of fairs was one factor in a gradual move to incorporate law merchant into the common law, while the desire to remove Admiralty jurisdiction over certain commercial disputes was another; this process would not be completed until the eighteenth century.

The Colchester piepowder court, since it was held in the same building as other borough courts and presided over by the same officials, could hardly have appeared a separate institution from the hundred court that was a the core of the borough's judicial administration. It must have seemed more a specialized session of that court; indeed, it was as part of a hundredal session in June 1380 that a plaintiff, in a case of debt for corn and straw sold by him, is conceded the right to prove his charge by merchant law, "according to the custom of the town" [W. G. Benham and I.H. Jeayes, Court Rolls of the Borough of Colchester, vol.4 (unpublished), 32]. The borough court – fortnightly hundred sessions, supplemented by those of a court of pleas in order to deal with the growing number of cases and need to move them along in a timely fashion – was already by this time being convened daily, if volume of business warranted. Furthermore, medieval Colchester's court rolls formed a single series, in which the different types of session were differentiated only by entry heading, all interspersed in chronological sequence. The court of pleas was in some regards similar to a court of piepowder; although procedure was governed by common law and custom, its ability to sit more regularly than the hundred court – even at multiple sessions on the same day on rare occasions – enabled the authorities a means of speedier procedure. But by the late fourteenth century it had settled into something of a routine in which sessions were mostly held on Thursdays and Fridays.

Piepowder sessions, under that name, are first evidenced in 1448, but do not appear regularly or with detailed recording before 1458, and even thereafter are not very numerous. The piepowder sessions might be seen as part of a gradual process of differentiation of types of court business, and possibly a development out of the foreign court sessions, which first appear under that name in the early fifteenth century, but are really only a rebranding of the court of pleas. However, it is more likely that a piepowder court came into being following the royal charter granted in 1447, which clarified local judicial jurisdiction and expanded it in some areas – notably, for our purposes, increasing the threshold of cases of contract or debt beyond the limit of forty shillings officially allowed to hundred courts; in addition, the charter permitted the annual election of four townsmen to serve with the bailiffs in the capacity of justices of the peace, excluding any external J.P.s from jurisdiction in the borough, and transferred the powers of the king's clerk of the market to the bailiffs. This charter stimulated an effort to address an existing need to regain the flexibility once had, but now lost, by the court of pleas.

The royal charter made no specific reference to administration of merchant law, nor did it need to, even though the borough took the precaution of obtaining explicit authorization of a piepowder court in its next charter (1462). As the heading of the piepowder court in 1458 shows, the borough's claim to such administration was based on the fact of there being a daily market, and the town clerk is at pains to emphasize, in the body of the record, the customary basis of proceedings – the frequent repetition of formulae in full itself being suggestive of new practice. This despite the fact that fourteenth century borough court rolls make no reference to piepowder sessions, nor is there is any reason to suspect they were recorded in a separate record series. More probably, in a town like Colchester, not so heavily mercantile as places like London or Bristol, outside of the duration of the October fair the court of pleas served the needs of speedier justice without recourse to law merchant, and the lack of detailed recording of cases obscures the piepowder-like procedure that was possible. This conjecture seems to be supported by a local ordinance of 1411, which prohibited any employer of a weaver from paying him in goods rather than cash, and offering a weaver so misused "right from one day to another, as in court of piepowder." [W.G. Benham, ed. The Red Paper Book of Colchester, Colchester, 1902, p.17]; the ordinance does not suggest that Colchester operated such as court at that period, only that it could offer comparably quick justice. Institution of a piepowder court in around 1448 would have provided the city authorities with the excuse for convening, at short notice, a court session to deal with the occasional pressing issue.

Despite the innovation, the piepowder court received relatively little use, and not all of that was of the type for which such courts were instituted. Although the case that Gross chose to include in his volume on the law merchant was one of debt, cases heard by the piepowder court were not all related to mercantile transactions. For example, in September 1459 the court dealt with a plea of transgression brought by John Sayer against a chaplain and a summoner, who admitted breaking into his house and stealing various linen items and a number of gilded silver rings; possibly the fact that Sayer was one of the leading aldermen of the borough, and had served as bailiff the previous year, explains why expeditious justice was accorded in this case. In April 1464 the court was taking recognizances of debt – a type of business just as easily (and normally) dealt with by the hundred and foreign court sessions – but later in the year we find it truer to its purpose in a plea of debt between two men of Lynn, one a vintner the other a lister.

By contrast with the Colchester institution, Bristol seems to have operated a piepowder court – not only as a fair court but outside fair time as the Tolsey court – for perhaps a century or more longer. The first documentary reference we have to the latter is in the royal charter of 1373 granting county status to Bristol and enhancing its judicial jurisdiction in consequence. That the burgesses, in their petition for this upgrade, did not request grant of a piepowder court and that the charter itself refers to the Tolsey court as something the borough had been accustomed to hold both indicate that such a court had already been in existence for some time and was not something for which they felt further authorization was needed in 1373. However, the king reserved to his own steward the presidency of the court and to himself the judicial profits that by custom belonged to him (as lord of the fairs and the market, through the earldom of Gloucester); similarly, he ignored the burgesses' request to delegate to their officials the powers of the clerkship of the market. Consequently the Tolsey court was held in a different building than used for local administration. It would not be until 1461 that the king surrendered these jurisdictions to the borough, and the Tolsey court was transferred to the guildhall.

The copying into borough records of the treatise on the law merchant is curious, considering that the borough authorities do not seem to have been involved in administering that law in the fourteenth century. Perhaps Colford thought its interest to the members of borough government lay in understanding the process operated by the king's steward and his deputies in the Tolsey, or that they would be interested as traders who might need to have recourse to piepowder justice occasionally.

After the borough authorities had obtained control of the piepowder court, they may have used its process with discretion, as was done at Colchester. In the above case the speed of proceedings was invoked only to obtain the arrest of a defendant who it was feared might otherwise depart beyond the reach of local jurisdiction. Once he was securely in custody, the plaintiff and the court were content to let the process move ahead at a more normal pace.

flourish

NOTES

"nine o'clock"
This seems to have been the usual hour for commencement of court sessions at Bristol. This would have allowed the citizenry time to visit the market before having to attend court.

"consecutively"
Borough court sessions were not normally held daily; two or three days a week were more commonly assigned for that purpose.

"transgression, contract, debt, or detinue of chattels"
These were the 'petty pleas': the core of the civil actions, other than those involving real estate (immoveables), entertained by borough courts and whose procedure and punishments were governed by local custom rather than common law. See also cap.84 and 93 of the Ipswich custumal. While some fair courts had the authority to try crown pleas and/or real actions (presumably just those stemming from offences occurring within the bounds and duration of the fair), these were not strictly part of merchant law. All four types of petty plea might entail the payment of compensatory damages to the offended party; but whereas contract, debt, and detinue involved, where proven, restitution of something due the plaintiff by right, a transgression (which would today be called trespass) involved only compensation for some injury done to the plaintiff's person or possessions.

"found sufficient within the bounds"
That is, does not have, within the territorial area of jurisdiction of the court, possessions valuable enough to cover the financial award made to the plaintiff.

"market"
Market should be understood here as a generic term referring to any of the five places specified in chapter 1. This categorization of types of commercial centres is also found in statutory law (e.g. see the statute made at York in 1335).

"surety, pledge"
There can be a certain interchangeability of these terms in medieval documents, but here I am, in most cases (depending on the context), using pledge as translation of vadium (often conventionally translated as "gage"), referring usually to some item of value put up as security for compliance with the law, and surety as translation of plegium (more literally rendered as pledge), referring to one or more individuals designated as guarantors of compliant behaviour of a party to a suit (although in strict legal parlance there is a distinction between surety and guarantor). As a rule, sureties were preferred, in the hope that such individuals could exercise sufficient influence over a party to ensure attendance in court; chattels seem only to have been taken as pledges when a party was unwilling or unable to find persons acceptable to the court (e.g. not indigents) who would act as sureties.

"reeve"
The original uses the term prepositum mercati as a generic title for whatever officer is responsible for supervision of the market. The use of this term might suggest the treatise to have been composed as early as the thirteenth century, but subsequent reference to mayors of cities makes it unlikely to have been earlier than the latter part of that century (assuming the Bristol copyist did not update terms from his source).

"Adam Bernard"
The names of parties are legal fictions.

"found sureties"
These were guarantors that the plaintiff would proceed with prosecuting the action on the day assigned for the appellant to appear. The requirement for such sureties was partly because a plaintiff could be fined if deemed (such as through default in appearance) to have made a false accusation.

"what rights there are"
Because essoins could be (and frequently were) used to delay legal proceedings, it was important for the court to keep track of what kind and how many were allowed each party. Bracton's treatise on common law devotes quite a bit of space to the subject of essoins and defaults in making court appearances.

"law-abiding"
More strictly, legales means law-worthy; that is, able to benefit from the law and participate in judicial processes, which required having a free status and the rights it entailed (e.g. being able to bequeath property to heirs) and not having forfeited one's reputation as honest and law-abiding through being, for example, convicted of perjury or outlawed. But this is not a modern concept.

"the determined value"
This may relate to the appraisal made, but I suspect it refers rather to the fact that only a certain amount of the appraised goods, equivalent to the value of the award made to the plaintiff by judgement of the court, would be handed over.

"supporters"
Those supporters would conventionally have been compurgators who would support the defendant's own oath to his innocence with confirmatory oaths of their own. However, in the case of the law merchant they were treated as witnesses to be questioned by the president of the court.

"suspicious"
There were various grounds on which a party to an action might challenge the acceptability of the opposing party's compurgators, though suborning was not among them, and some evidence that witnesses might similarly be challenged. Here we may suppose that the suspicion arose not from any challenge of a party to the action, but from knowledge or belief of one or more of the merchants who were suitors to the court.

"deprived of their livelihood"
The customs of various boroughs specified limitations on where and under what circumstances distraints could be made, as well as exempting from distraint items required for subsistence (as opposed to those used to generate profit); here "perdant exitus suos" would appear to mean that if (for example) the witness shut himself inside his house (an Englishman's home being his castle), he could be prevented from going out to take advantage of whatever sources or activities from which he derived revenue.

"done under common law"
Bracton certainly recognizes that a merchant's principal asset was his merchandize; by extension it was doubtless understood that his vulnerability, should it prove necessary to exercise legal compulsion, was in his ability to apply that asset in commercial transactions.

"qualified"
sufficientibus here may mean no more than distrainable, though customary law made it clear that in selecting witnesses, citizens were preferable to outsiders, and citizens of good standing were considered more reliable than residents of low status or uncertain reputation. Sufficiency was one of those complex but somewhat nebulous medieval concepts hard to translate by any modern term.

"disputant"
That is, he is not simply admitting or denying the charge, as the defendant was supposed to do, but challenging the details of it, which was more the role of a lawyer.

"agents"
The Latin has submercatoribus, meaning anyone to whom a merchant has delegated the authority to act on his behalf in a commercial transaction, such as a factor or broker.

"wreck of the sea"
Treatment of shipwrecks and what was recoverable of their cargoes, and even their crews, was a matter of local custom. It was initially influenced by the belief that shipwreck was a divine judgement upon the owner or crew of the vessel, which included removing the cargo from possession of those punished by wreck, so that it could be claimed by salvagers. However, as local custom emerged and as kings – concerned not only about fairness to owners of cargoes, but also about the import duties they were deprived of as a result of wreck – legislated on the matter, the rights of salvagers were curtailed. This reduced the risk of total loss to merchants who invested in maritime commerce. As pointed out by Edda Frankot [Medieval Maritime Law and its Practice in the Towns of Northern Europe, Ph.D thesis, University of Aberdeen, 2004, p.34], shipwreck was not strictly part of maritime law, since it governed goods that washed up on shore.

"exceptions"
A legal term referring to an allegation, by a party to an action, that some aspect of the proceedings are unsatisfactory or insufficient. In chapter 10 it refers to objections raised against the admissibility of witnesses or oath-swearing supporters (compurgators); this type of objection could not defeat, only delay, an action. The exception referred to in chapter 21, however, if found valid, could prove peremptory.

"communal location"
See also provisions at Shrewsbury for accountability for distraints, and the restrictions at Ipswich and Norwich on unsanctioned distraints. The Shrewsbury document implies that distraints would be stored in the same room used as a communal treasury. Chapter 14 goes on to discuss a practice of officials in some places to sequester distrained items in some house or room whose door could be closed and an official seal affixed thereto in such a fashion that the seal would be broken should anyone enter; but this tactic is condemned as causing inconvenience if not hardship on the owner of the house and being tantamount to disseisin. This discussion leads naturally into chapter 15.

"view his distraints"
Not only was the owner of the distrained items to be provided with this reassurance, but (the chapter goes on) provision was to be made for owners to have access to them to maintain them, particularly in the case of livestock that needed feeding (or even putting out to pasture), to prevent deterioration and loss of value. The owner of an animal might be allowed to see to this personally, but provision for a custodian is also made, with a schedule of payments set out to cover the costs. A caveat is added about preventing an owner from getting access to distrained items belonging to others.

"sign of the clerk"
A signature would have served, though the author evidently has in mind some kind of notarial mark or clerical equivalent of the merchant's mark; that is, something that authenticates the transcript and allows it to be associated with a particular scribe should the authenticity be challenged at later date.

"commitment to the truth"
This is presumably a reference to the mayor's oath of office, which in Bristol, at the same period with the treatise was written, included a promise to uphold the law, to use law and reason to punish offenders, and to assure equal and unbiased justice to all.

"or merchants"
The author probably refers here to the commercial agents mentioned in chapter 7.

"Attaint"
In essence, accusation of having made a false oath (or given a false verdict), which, if proven, would thereafter taint the reputation of the oath-taker. There was not normally a means of appeal above the court administering merchant law. But when a party felt a false judgement had been rendered by the jury of suitors (such as through their perjury, error, or concealment), or if the lawsuit reached an impasse (e.g. the plaintiff's tally of debt being countered by the defendant's tally of acquittance, and there being no witnesses) so that the suitors had difficulty reaching a verdict, either or both of the parties might feel the need to seek an alternative method of determination. In such cases a writ of attaint against the jury of suitors could be sought from the king, enabling the matter to be put to a larger inquisition jury drawn from a wider group, which would review the verdict and the evidence. Trial of attaint was carried out by common law, not law merchant; since this 'grand jury' was the result of a conscious choice by one or more of the parties to a lawsuit, no further appeal of its verdict was possible.

"Friday 15 March"
This date fell on a Sunday in 1282. The case may be fictional, but the level of detail suggests it is based on an actual lawsuit, with only the details (possibly including the various dates from the 1280s) being changed; the author could have made his point with a less convoluted narrative (part of which I have summarized). His recounting of the case is muddied somewhat by a seeming confusion (perhaps caused by the conventional but injudicious choice of fictional names which are too similar) as to which party is the plaintiff and which the defendant.

"the same place"
That is, Boston, whose development as an important port in international commerce owed much to the fair granted it (ca.1130) beginning on the feast-day of the saint from whom Boston obtained its name. This exemplifies the arrangement whereby mercantile debts incurred at one fair would be paid at a later fair on the circuit, which both debtor and creditor would be attending.

"liberty"
That is, the boundaries beyond which borough administration had no jurisdiction.

"held every day"
By 1285, and probably from the time when Colchester's various markets were confirmed by charter of Henry II, a general market was held on Wednesdays and Saturdays. But victuals and some other local goods were probably being sold, and perhaps some of the specialized markets (such as for fish, oysters, corn, and wool) being operated, more or less formally, on other days; so that by the mid-fifteenth century it could be claimed that markets were a daily occurrence.

"Thomas Smythe"
A townsman of sufficient prominence that he was elected one of the town councillors in 1459.

"John Horndon"
A former town clerk of Colchester, who had moved into private practice as an attorney, though was still closely associated with the borough administration.

"John Noke, John Goos and Nicholas Ravene"
Gross suspected the names of the summons deliverers were fictitious, and so they appear. Sergeant Noke's name also looks a little suspect, but I have confirmed it from another entry in the court roll of that year (which, however, is missing the usual list of those elected to borough offices). Noke was not appointed sergeant in any other year, which is somewhat unusual, and perhaps his services did not prove satisfactory; yet it appears unlikely that the bailiffs would have been taken in by a fabrication about summoners, and were more likely complicit in the fiction. It is probable that the court knew that Cristian, who was also facing actions from two other creditors the same day, had made himself scarce and so only went through the formalities of a summons; since the court modified the common law practice (sometimes used by fair courts) of holding, for a year and a day, distrained goods of a party who failed to show up in court, before selling them or handing them over to a plaintiff, perhaps it had reason to know that Cristian would not be able (if, for example, dead) to appear within that time limit. Thomas Smythe was fortunate to have had first claim on Cristian's goods, something that may have been owed to the fact that his surety and probable relative William Smythe was a member of the town council, and perhaps newly promoted to the upper council of aldermen. Thomas himself would be elected to council in 1459.

"John Botiller"
A mercer who was one of the town councillors at this time.

"Thomas Went and Richard Kent"
Again, as Gross notes, these names look fictitious. Since Warre was already in court and the session was prepared to proceed, there was no real need for a guarantee he would follow up on his accusation. It will be noted that in the case at Colchester, Smythe's pledges for prosecution were simply two men conveniently at hand in the courtroom: a court attorney and the town sergeant.

"translation"
A translation of the entire treatise has been published in Mary Elizabeth Basile et al., eds., Lex Mercatoria and Legal Pluralism: A Late Thirteenth-Century Treatise and its Afterlife. Cambridge (Mass.): Ames Foundation, 1998, but I have not had access to this work.

"Statute of Marlborough"
Among other reforms, this restricted the practice of distraints, prohibiting them being taken by private individuals, and (when used as a tool to force suitors to come to court) restricting them to persons over whom the court could claim jurisdiction.

"not necessarily standardized"
Moore [The fairs of medieval England, 168] felt that the principles and practices it enunciates correspond to those seen in surviving records of the St. Ives fair courts of the early fourteenth century. However, Stephen E. Sachs ["From St. Ives to Cyberspace: The Modern Distortion of the Medieval 'Law Merchant'" (2005). American University International Law Review, vol.21 (2006), 770-773] has noted disparities, such as waging law as a common method of proof in the St. Ives court, although the treatise denies this as an option of the law merchant. In part of the lengthy Chapter 5 not translated above, the author acknowledges that attachments were handled by English courts "in different ways at different locations, so that no-one could know or become familiar with the process of market law in this matter."

"suitors' verdicts"
Gross [Select Cases, p.xxv] notes some evidence that by the reign of Edward IV the central courts at Westminster were holding that the president of a piepowder court should be the judge.

"roots in customary borough practices"
I have elsewhere argued that the same sort of adoption of local custom into common law happened in the case of the "free air" principle. the Ordinance: so described because, historians note, the king saw it not as a permanent statute but as a temporary measure, as indeed it proved to be.

"the Ordinance"
So described because, historians note, the king saw it not as a permanent statute but as a temporary measure, as indeed it proved to be.

"not the common law"
A misleading distinction which a statute of 1362 attempted to clear up, by acknowledging that certain actions (probably referring to felonies and pleas other than debt, contract, or other actions related to commerce) heard before the mayor of the staple should be conducted according to common law, but that if one of the parties was a foreign merchant the process could be conducted according either to common law or 'the law of the staple'.

"staples in 1353"
Staples, as compulsory points through which wholesale commerce had to be channelled, had been part of royal policy towards the wool trade since 1313, but were initially set at overseas ports. In part to reduce foreign exporters' direct access to wool-growers (or at least to draw them to English markets) in 1326 a number of English staples were appointed, including Bristol – although its selection was for political as much as economic reasons [Pamela Nightingale, "Knights and Merchants: Trade, Politics and the Gentry in Late Medieval England," Past and Present,, no. 169 (Nov. 2000), 44]. This appointment lasted until 1328, and Bristol was again a staple 1332-34.

"borough courts"
An excellent analysis of their development, along with that of court practice, can be found in R.H. Britnell, "Colchester Courts and Court Records, 1310-1525" Transactions of the Essex Archaeological Society, vol.17 (1986), 133-140.

"not very numerous"
They are not evident at all in the two surviving court rolls from the 1490s, even though we know from a reference in the Red Paper Book that the piepowder court was still operating in that decade. Nor do they reappear in the next decade.

"foreign court"
At the same period a foreign court was one of the judicial institutions at Yarmouth, and there looks to be a piepowder court. This is not evidently the case at Colchester.

"limit of forty shillings"
Colchester's court in fact had exceeded this limit on occasion, so Henry VI's charter was only authorizing what was already established practice.

"recognizances of debt"
As with the action brought by Sayer, I suspect these recognizances were tied to the interests of borough government. Both recognizances were made to town clerk Roger Purtepet and his predecessor (Horndon) in that office, and both were by clerks – one of whom would become the next town clerk; it may be that the 'debts' were actually for payment of burgess admission fines and were associated with recruitment of assistants to one or other of Purtepet or Horndon, either in their official capacities or their private practices.




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Created: October 28, 2014. Last update: March 22, 2016 © Stephen Alsford, 2014-2016