|COMMERCE AND ITS REGULATION|
|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.|
|Date:||14th to 16th centuries|
[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
[cap.2] In what way
the law merchant differs from common law
[cap.3] Concerning pledges
for prosecution and orders for attachment
[cap.4] Concerning essoins
and judicial consideration of essoins
[cap.5] Concerning attachments
by pledge or sureties who fail to appear; procedure in regard to 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.
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
[cap.8] Concerning the goods
of merchants or others at risk of wreck of the sea
[cap 9] Concerning those
who hold real estate within the bounds of the said five places
exceptions against witnesses or oath-swearers
[cap.11] Concerning contracts,
loans, detentions, and transgressions made outside the bounds of the market
[cap.12] Concerning rendering
[cap.13] Concerning the execution
[cap.14] In what manner
distraints should be taken and kept in custody
the places for [keeping] distraints
[cap.16] Concerning the provision
of transcripts of pleas to either party
[cap.17] Concerning the seals
of fairs and markets and their custodians
[cap.18] Concerning the clerks
and rolls of the lord and suitors of the market
[cap.19] Concerning sureties
[cap.20] Concerning attaints
[cap.21] Concerning writing
to other courts
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.]
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."
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."
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.
"transgression, contract, debt, or detinue of chattels"
"found sufficient within the bounds"
"what rights there are"
"the determined value"
"deprived of their livelihood"
"done under common law"
"wreck of the sea"
"view his distraints"
"sign of the clerk"
"commitment to the truth"
"Friday 15 March"
"the same place"
"held every day"
"John Noke, John Goos and Nicholas Ravene"
"Thomas Went and Richard Kent"
"Statute of Marlborough"
"not necessarily standardized"
"roots in customary borough practices"
"not the common law"
"staples in 1353"
"not very numerous"
"limit of forty shillings"
"recognizances of debt"
|Created: October 28, 2014. Last update: January 8, 2019||© Stephen Alsford, 2014-2019|