Note:

CONTENTS

Abbreviations

Chapter I: Introduction

Chapter II: Who Rules the Fair? Authority Over a “Merchant Court”
            A. Executive Authority
            B. Judicial Authority
                        1. Negative Evidence
                        2. Positive Evidence
            C. Legislative Authority
                        1. Alternative Sources of Legal Principles
                                    a. Abbatial Authority
                                    b. Royal Authority
                                    c. Conclusions
                        2. The Law Merchant and Non-Merchants
            D. Conclusions

Chapter III: One Law Merchant, or Several?
            A. “The Law Merchant” Within St. Ives
            B. Mercantile Law Beyond St. Ives
                        1. Direct Evidence for Variation
                                    a. Lex Mercatoria
                                    b. Royal Courts
                                    c. Cities and Towns
                        2. Indirect Evidence for Variation
            C. The Counter-Argument: Royal Recognition
            D. Conclusions

Chapter IV: Merchant Law and Politics
            A. The Civilians and the Merchant Courts
            B. The Romance of the Law Merchant
            C. Reinterpretation and Renewal
            D. Conclusions

Epilogue: Lex Mercatoria and Lex Cyberspace

Bibliography

Notes

I came to the study of the law merchant by a rather indirect path.  In June of 2000, the House Committee on the Judiciary held an oversight hearing on “The Internet and Federal Courts.”[1]  Before the hearing, the staff of each party prepared a memorandum for their respective Committee members, and as an intern for the Democratic staff, I was assigned to write a section on the new choice-of-law questions that the Internet posed.  If a New York resident defrauds a resident of California on a website hosted in Delaware, which state’s law should be applied?  When applied to wrongs committed in cyberspace, the principles that had been developed to resolve such conflicts of law seemed inconclusive or inappropriate.  Many commentators argued that a new, universal substantive law was needed to govern the borderless Internet—a lex cyberspace modeled on the medieval lex mercatoria, which was said to follow medieval merchants along the trade routes and to protect them from the arbitrary rule of lords and bishops.  My academic interest in the law merchant was born of my surprise at finding an allegedly medieval concept at the center of a fierce debate over Internet law.  At its core, this thesis is an effort to enter that debate and to remove a flawed historical assessment of medieval law from the contemporary political battlefield.

My introduction to the law merchant was only one of many fortunate consequences of the two summers I worked at Judiciary.  I am deeply grateful to the committee staff, especially Perry Apelbaum and Samara Ryder, for the opportunities they afforded me, as well as to the Institute of Politics, which provided financial support during both summers through its Public Sector Internship Stipend program.

Much work was required before an amusing coincidence discovered the previous summer could become a subject of historical research.  This transformation was largely accomplished under the skillful guidance of Samantha Herrick, my tutor in the Honors Field Tutorial, who helped me to identify and evaluate the primary sources that are the main focus of my analysis.  Ms. Herrick also obtained for me the assistance of Barbara Burg, a research librarian of the Harvard College Library, and introduced me to Prof. Charles Donahue of Harvard Law School, who suggested a number of insightful and effective approaches to the material.

Over the past year, I have also benefited from the invaluable assistance of my advisor, Prof. Thomas Bisson.  Through my discussions with Prof. Bisson, I was able to refine my argument and to gain an understanding of the larger historical context of the exercise of law at St. Ives.  I also appreciate Prof. Bisson’s patience and his willingness to review draft after draft of the thesis, occasionally on very short notice.

This thesis was many months in the making, and I am grateful to those who supported me during that often-frustrating time.  Vasugi Ganeshananthan generously assisted me with proofreading in the waning hours of March 20, and my friends and roommates Steven Wu, Jesse Zalatan, and Adrian Worrell graciously allowed me to turn one corner of our common room into a ‘thesis shrine’ piled high with books.

A number of minor errors in the original version of the thesis have since been corrected, thanks in part to the close scrutiny of one of my thesis readers, Gregory Smith.  I encourage readers who find additional errors in the text to contact me via e-mail using this form; an updated version of the thesis will be permanently available at http://www.stevesachs.com/papers/.

Finally, I would like to thank my family for their unceasing love and support.

Stephen E. Sachs
Cambridge, Mass.
June 1, 2002

ABBREVIATIONS

In 1293, William of Abingdon sued William Martin in the fair court of St. Ives.  A small vill in the county of Huntingdonshire, St. Ives held an annual fair every Easter, and a special court was established within the fair to hear disputes.  In this case, the plaintiff appeared in the name of the London cloth merchant John of Abingdon, whom the defendant owed £11.  The defendant challenged the plaintiff’s standing to represent John, and the case was put on hold.

When the parties returned to court two days later, William Martin presented what he claimed was a written confirmation from John that the debt had been paid in full.  The plaintiff immediately protested that the document was false, and he asked for a jury to investigate the obvious forgery.  At this point, however, Martin argued that the plaintiff could not contest the document’s validity, “since it is not lawful for him or for any other person to deny or abate the deed of another.”  The court agreed, Martin went free, and the unhappy plaintiff was fined for making a false claim before the court.[2]

From the story of William Martin’s bold legal fiction, we can learn much of the practice of justice at the fair of St. Ives.  It is difficult to believe that the piece of paper Martin presented in court was in any way genuine.  If he had had it in his possession at the time of the first hearing, he would undoubtedly have presented it then, rather than attempt a procedural objection to the plaintiff’s standing.  The chance that a genuine acquittance from the creditor would have arrived in the intervening two days is virtually nil, especially given that John of Abingdon was not present at the St. Ives fair and lived sixty miles away.  So why would Martin have taken the risk of presenting to the court what he knew to be a false document?  The only reasonable explanation is that he recognized—and, more importantly, expected the court to recognize—a legal principle that would prevent the forgery from being discovered.  The scheme hatched by William Martin demonstrates that the fair court of St. Ives had rules, and that those rules were well known to at least some of the traders and St. Ives residents who appeared before it seeking justice.

Unfortunately, the historical record does not give a clear account of what those rules may have been.  The records and plea rolls the fair court left behind do not explicitly describe who constituted the court or what legal principles it applied.  However, since the early seventeenth century, the prevailing view among historians has been that fair courts in England enforced a law known as “the law merchant.”  This law was created by the merchant community and expressed their customs, reflecting the unwritten usages of the community rather than the written command of a sovereign legislator.  At the same time, it was not the product of any single merchant guild or even a single country, but was the creature of the international merchant community, establishing substantive principles and convenient procedures to govern commerce throughout the world.  The result was a new legal order, free from the oppressive control of local laws and local lords.  In the words of Levin Goldschmidt, a German lawyer and historian of the mid-nineteenth century, “Out of his own needs and his own views the merchant of the Middle Ages created the Law Merchant.”[3]

Goldschmidt’s thesis of a universal law merchant—produced, interpreted and enforced by a legally independent merchant class—is still accepted by most studies of English commercial law.  The thesis has also profoundly influenced the development of commercial law in the modern era.[4]  Yet it is the purpose of this essay to demonstrate that the Goldschmidt thesis is deeply inaccurate, at least as applied to the fair court of St. Ives.  Instead, the Goldschmidt thesis provides a prime example of the misuse of historical evidence in support of political ends.

St. Ives is particularly well-suited for such a case study.  In the early thirteenth century, the rural village was the site of one of the largest fairs in England, providing an opportunity for merchants from as far away as Italy to trade their wares along its central Bridge Street.[5]  Though it reached its zenith under the reign of King John, the fair continued to be highly profitable throughout the 1200s and was a significant center for the cloth trade.[6]  If the law merchant were indeed a universal means of regulating commerce, one should expect it to be in force at St. Ives. [7]

More importantly, the actions of the St. Ives court are uniquely well documented.  Far more information is available on the St. Ives court—both in published works and in manuscripts—than on any other English fair of its day.  Fourteen of the fair court’s annual plea rolls, recording the administrative business of the court as well as the cases argued before it, are preserved in the Public Record Office and the British Museum.  The surviving rolls are variously dated between 1270 and 1324 and provide the chronological focus for this study.  Additionally, the Selden Society has published a significant number of the records in two volumes of facing-page translation—one volume edited by the great legal historian F.W. Maitland, the other by Harvard history professor Charles Gross.[8]  Though the Gross and Maitland editions are selective, the extracts were chosen with the design of presenting as much information as possible about the commercial law practiced at St. Ives.[9]

Gross had described the St. Ives series as “unrivalled,” and his description has remained accurate to the present day.  In Fairs of Medieval England (1985), Ellen Wedemeyer Moore remarks that early documents from English fairs are “scattered” and present a coherent picture “only when taken as a whole.”[10]  Although the heyday of English fairs was in the twelfth and early thirteenth centuries, most records from local fairs are only available for the period after the Black Death.  The only series of documents that Moore regards as at all comparable to the St. Ives rolls are the account rolls of the St. Giles fair, which begin in 1287 and continue into the late fourteenth century; however, these are records of account and contain primarily fiscal information, which will not help us in examining the justice practiced in the fair court.[11]  The thesis of a universal law merchant must be tested on the evidence available, and no other source contains as complete a collection of material on English fairs before the plague as the St. Ives rolls.  The fair court records must therefore be trusted to depict accurately the experience of commercial law in English fairs of this period.  Furthermore, although a great deal of original work has been done on English commercial law in the last twenty years, there has been no systematic examination of the St. Ives documents with an eye towards proving or disproving Goldschmidt’s thesis.[12]

What the fair court rolls reveal is that the merchants of St. Ives did not create their own legal order out of their own needs and views.  Rather, the administration of the fair was in large part subject to the king of England and to the abbey of Ramsey, a powerful and wealthy monastic foundation that held both the St. Ives fair and the manor of Slepe in which the vill was located.[13]  The king and abbot had significant authority in the establishment of legal principles, the resolution of disputes, and the enforcement of the fair court’s judgments.  The merchants participated in each of these areas of authority, especially in rendering judgments; however, the same could be said of the unfree suitors of a contemporary manorial court, and there is little evidence indicating that merchants possessed any unique rights to independence or self-government.  In fact, the most fruitful means of understanding the role of the fair court may not be as a special court for merchants, but rather as a seigneurial court whose business is primarily commercial in nature.[14]

Moreover, the evidence of the fair court rolls, in combination with that of royal court records and the charters and custumals of English towns, indicates that the “law merchant” occasionally cited at St. Ives was not a universal law for the merchant class.  Goldschmidt would have agreed—indeed, insisted—that the law merchant was a customary law; it derived its force from mercantile customs, and not from any official promulgation or enactment.  Yet these customs were not necessarily constitutive of a coherent legal order, nor were they necessarily shared across any great distance.  Within St. Ives, the use of the phrase “law merchant” did not invoke a body of substantive principles so much as a mixture of local custom and contemporary notions of fair dealing.  Claims that these principles were universal founder on the clear differences among the various customs of English fairs and towns.  Indeed, the fair court rolls give no impression whatsoever that the suitors considered themselves to be participants in a tradition of commercial law that extended beyond the borders of St. Ives.

Given this evidence, why has a flawed interpretation of medieval commercial law succeeded so brilliantly?  The thesis that the Middle Ages happened upon a universal means of regulating commerce is of more than mere historical interest; it has repeatedly been used to support various political programs, from the jurisdictional claims of the civil lawyers in seventeenth-century England to the demands for self-government of the merchant Volk in Goldschmidt’s day.  In the era of globalization, the Goldschmidt thesis has taken on new life, as scholars attempt to craft a new means of regulating international commerce (or even regulating the Internet) based on the model of the medieval law merchant.

Such models, however, are clearly divorced from the historical reality. There may indeed have been broad principles of mercantile law that were widely shared in medieval Europe; merchants would presumably prefer justice that was swift and fair, that took notice of mercantile customs, and that did not place contradictory demands on merchants trading across jurisdictional lines.  But there is no suggestion in the fair court rolls of a legal order that spanned the continent; there might have been laws and customs of merchants, but no law merchant.  What similarities existed in the regulation of commerce may be better explained as a result of the convergent evolution of local customs, rather than as a conscious expansion of a single body of law across Europe.  The memory of medieval commerce has been distorted considerably in the seven centuries since William Martin made his gamble; the evidence of the fair court of St. Ives fails to support the view that the merchants of the Middle Ages “were subject to no legal order but their own.”[15]

The fair court of St. Ives was of the sort widely referred to as “merchant courts” or “courts of piepowder,” courts primarily devoted to the needs of merchants and to resolving the disputes that arose among them.  Yet many recent historians have argued that such courts did not merely service merchants, but were also created and operated by them.  According to Leon Trakman, these courts recognized the capacity of merchants “to regulate their own affairs,”[16] and Harold Berman writes that the merchant community “organized international fairs and markets” and “formed mercantile courts” to administer them.[17]  In a forthcoming essay, Bruce Benson presents a vision of merchants who “wanted to expand international trade” but found “highly localized legal systems [standing] in their way”; to avoid these legal systems, they created their own, based on a law merchant that was “voluntarily produced, voluntarily adjudicated, and voluntarily enforced.”[18]

Yet to what extent was the fair court a court of the merchants, a court that belonged to the merchant community and that consistently enforced their will? The fair court of St. Ives was established to hear plaints arising out of the fair, many of which would naturally be commercial in nature.  But the mercantile orientation of much of its business does not imply that the fair court was an institution under mercantile control.  The vision of the law merchant as an entirely private legal system—with legal principles developed, interpreted, and enforced by merchants—would be frustrated if external authorities were found to wield substantial influence over mercantile courts.

To answer this question, this chapter will consider the sources of authority in the fair court’s executive, judicial and legislative functions. The division of authority along these lines is in part anachronistic, as the court itself did not acknowledge these divisions.  However, this tripartite arrangement does provide a valuable framework for distinguishing among the various types of power exercised at St. Ives.

Analyzing the evidence through these three categories shows that the merchants did not exercise anything approaching a monopoly of power over the fair court’s day-to-day operations.  Both in theory and practice, the fair court of St. Ives was a creature of the king of England and of its lord, the abbot of Ramsey.  While the merchants may have exercised some influence in the court’s decision-making, the evidence from St. Ives does not indicate the presence of a radically independent and self-governing merchant community.  The power that the merchant community did directly exercise within the fair court was not unique to St. Ives or to merchant courts generally, but rather common to other local courts across England.  Indeed, the fair court of St. Ives is most comprehensible in the terms of its contemporaries, as a seigneurial court subject to the power of the abbot.  The evidence indicates that the fair court was part of a pre-existing political framework rather than a new merchant-led legal order.

A. Executive Authority

Who enforced the decisions at St. Ives?  Who ensured that damages were paid and that fines were collected?  On whose authority were the judgments pronounced?  In the context of thirteenth-century legal theory, there could have been little dispute about such questions; these functions were very clearly the abbot’s to command.  The court was part of the patrimony of the abbot of Ramsey, and the court’s officers—the steward, the bailiffs, and the clerks—were appointed by the abbot or by his representatives. The fines and amercements paid in the fair court went to the abbot’s treasury, and the watchmen and constables as well as the jurors of presentment were unfree men who owed services to the abbot as their lord.[19]  The abbot’s men were responsible for collecting payments to the court,[20] for distraining absent defendants by seizing their goods,[21] and for conducting unlucky defendants to jail.[22] In 1287, a man named Totte Simon tried to collect a tax on wool; because he “executed this office without warrant and without the leave of the bailiffs of the fair,” he was summoned to the fair court and his goods were seized.[23]  The parties before the court explicitly recognized the abbot’s executive control over the fair.  A plaintiff in 1293 sued a servant of Amice Hendeman who had attempted to arrest his goods, saying that “the said Amice has no authority to arrest the goods of [the plaintiff] or of any other merchant which are hosted in the frontages during the fair, [nor has anyone] save only the lord abbot and his bailiffs.”[24]

The right to hold an annual fair at St. Ives, however, was not the abbot’s to assume.  It was a royal right, granted to the abbey in 1110 by King Henry I.  In the same grant, Henry extended to the abbey the customary rights to take tolls in the fair and to hold a court to govern it (“with . . . sac and soc, toll and team, and infangentheof”), as well as placing his royal peace on the fair and its merchants.[25]  A dispute over the extent of this grant in the mid-thirteenth century illustrates well the official view of the St. Ives fair and its court.  In 1252, the abbot of Ramsey sued several royal bailiffs for extending the term of the royal peace for three weeks after the end of the fair.  In other words, the king had added his own three-week-long fair at St. Ives, leading many merchants to delay their arrival until after the abbot’s fair had ended.  The abbot and monks claimed that these actions were “contrary to their charter and contrary to the will of the king who had that charter made for their benefit”; the fair had been given “as an appurtenance to Ramsey abbey in free and perpetual alms,” so that the abbots had possession of it “as of their own soil, with which they could do as they pleased.”[26]  The plaintiffs repeatedly invoked the argument that the St. Ives fair was held on “their own soil,” and they protested that the king’s bailiffs had collected tolls and rent even from “the abbot’s houses, stalls, and booths and from the boats and ships which were moored to the abbot’s own soil.”  The abbot also represented the fair court of St. Ives as a private hundred, saying that “Hurstingstone hundred belongs to the abbot, and he has and always ought to have the attachments which arise from plaints within the fair and outside it, and [the right] to hear those plaints at his pleasure where he may wish. . . .”[27]

The royal bailiffs replied by asserting the king’s power over the fair:  once the term of the abbot’s fair ended, the fair “came into the king’s hand,” and “the abbot can in fact claim no rights in either fair or market after the time of this fair is past.”[28] Furthermore, the booths and stalls from which they took rent “stand [on] the king’s highway and no one can or ought to meddle with it except the king”—and in any case, whatever the bailiffs did, they did “for the king’s benefit.”[29]  However, the bailiffs did not contest the abbot’s lordship over the fair during the period of the king’s one-week grant.  The resolution of the case is not preserved; the record of this case ends with the commissioning of a jury, consisting of twelve knights and twelve merchants, to investigate the customary rights of the abbot over the St. Ives fair.  Three years later, if it were still continuing, the case was rendered moot, as Henry III sold to the abbot all the revenues and jurisdiction of the fair however long it might last—establishing abbatial control over the fair for the entire period of the extant court rolls.[30]

In what is perhaps the most important test of control, the fair court was willing and able to assert the abbot’s power when it was challenged.  In 1291, Hamon of Bury St. Edmunds claimed the right to exercise the office of alnager (measurer of cloth) without appointment from the abbot.  He based his claim on a letter patent from Sir Roger de Lisle, clerk of the Great Wardrobe, ordering that he be admitted to measure wool, linen and canvas.  Hamon was arrested on a Saturday for measuring canvas without appointment to the office; on Monday, the court cited the “charter of the lord king touching the fair” and declared that “no bailiff or officer of the lord king should in any way interfere with the said fair or its appurtenances,” since that might prevent the abbot and convent of Ramsey from “having for ever the administration of all things pertaining to that fair both inside and outside the vill”—an unabashed statement of abbatial power. He was finally admitted to his office—after all, he had served as the abbot’s alnager several times in the past—but was forced to give up the letter and renounce his claim to authority based on the command of a royal official.[31]

Why did the abbot guard his authority so jealously?  The answer is money.  Though Moore notes that the revenues from the fair court were relatively small—only £8 9s. in 1287, compared to £126 from stall and shop rentals the year before—the fines and amercements still represented a valuable source of income.[32]

The manner in which these payments were recorded provides additional evidence of the abbot’s financial interest.  The notes in the margins of the St. Ives court rolls contain information that the scribe or a later reader found significant and chose to emphasize; as a result, the contents of the marginalia should give us some insight into the court’s purpose in maintaining records.  Of the first year of records that Gross translates, for example, two-thirds of all marginalia record the amount of money paid in fines or otherwise rendered to the abbot.[33]  Other notes include such information as “Prec’ est [it is ordered],” generally to mark a distraint, or “Memorandum” simply to draw attention to a proceeding.  The fact that so many of the marginalia record payments—and that almost all payments to the court are recorded in the margins—indicates that the court rolls were used not only by the court to keep track of its proceedings, but also by the abbot’s officials to calculate how much their lord was owed.  This may have been viewed as a more central purpose of the rolls than their use as authorities in future cases, which seems from the records to have been rather infrequent.[34]  If so, the St. Ives fair would have been in keeping with the best administrative practices of its day.  An anonymous treatise on husbandry, written circa 1300 and believed to reflect the procedures on the Ramsey abbey estates, mentions court rolls only in the context of assessing the profits of justice:  “The steward ought to hand in his court rolls soon after Michaelmas so that one can charge with these rolls reeves and bailiffs who ought to render account for the perquisites of courts for the whole year.”[35]

As the holder of a royal grant and as the lord of St. Ives, the abbot of Ramsey thus enjoyed an immense amount of control over the conduct of the fair.[36] No similar claim to executive authority could plausibly be made on behalf of the merchant community.  Benson writes of “the threat of ostracism by the merchant community at large” as a means of enforcing the decisions of the court, and certainly merchants would have thought twice before extending credit to a man who had just been convicted of theft.[37]  But the fair court rolls contain no evidence that such ostracism was ever institutionalized; indeed, given that some defendants appear repeatedly in the rolls, one should infer that they had lived to trade again. If the merchants indeed regulated their own affairs, they depended on the abbot to make those regulations enforceable.[38]

B. Judicial Authority

Who judged the cases in the fair court?  A number of contemporary sources indicate that the merchant community at a fair like St. Ives could claim independent judicial authority.  According to the thirteenth-century treatise Lex Mercatoria, in market courts “every judgment ought to be rendered by merchants of the same court and not by the mayor or by the seneschal of the market.”[39]  Indeed, there is a good deal of evidence that this was the case in St. Ives.  In the case of Fulham v. Francis (1311), upon encountering a particularly knotty legal problem (namely, whether servants may swear an oath to establish ownership of goods by their master), the court called upon the merchants to render the decision.  The court rolls record that “thereupon all the merchants of the said fair, both natives and foreigners, to whom judgments belong according to the law merchant [secundum legem mercatoriam], having been called for this purpose and consulted, say that [the servants] may properly be admitted in this and similar cases according to the law merchant.”[40]

In fact, merchants were apparently relied upon to render the decisions of the fair court quite frequently, not only in cases of exceptional difficulty.  We know that there were merchants present at the court on a regular basis.  In Swavesey v. Pope (1288), the question arose whether Hugh Pope, the defendant, had received a new trial date before he left a previous court hearing.  According to the rolls, Pope “craves that the record of the merchants and of the whole court be allowed him. The merchants and all others of the court testify and say that the said Alexander withdrew from the court before a day was given to him; wherefore they say that Hugh made default at that court.”[41]  The merchants had a significant role even in cases concerning royal law:  when Simon Blake of Bury was arrested for violating the royal assize in selling canvas, the court assembled all the merchants of the fair to try his case.[42]

The merchants’ decision-making role is emphasized by the parties themselves in Graffham v. Pope (1291), in which Alan of Berkhamstead intervened to claim as his own a horse that had been attached for a debt.  He said that he had bought the horse from Thomas of Ramsden, “and that this is so he craves may be inquired [by an inquest], unless he may be admitted to [make] his law [i.e., prove his case by oath] by the award of the merchants.”  The inquest later reveals that Alan had bought the horse through collusion with the defendant, but the fact that Alan had sought relief “by the award of the merchants” indicates that the merchants attendant at court were seen as the decision-makers.[43]  Later in the same session, a dispute arose in Fleming v. Tanner (1291) over whether the appropriate means to prove a breach of contract were an inquest or a wager of law, a formal oath of innocence sworn by the defendant and a specified number of compurgators.  On this question “the parties put themselves on the judgment of the merchants, and it is awarded by the merchants that the truth of the matter be inquired [by an inquest].”[44]  These are only a few of the many cases at St. Ives in which a party appealed to “the merchants” for a favorable decision.

These cases would seem to establish that the merchant courts did give decision-making power to the merchant community. The ability of the merchants to render decisions in this way would certainly be unusual in the court of King’s Bench or Common Pleas, and some historians have pointed to this fact to demonstrate that the role of merchants in mercantile courts was one of voluntary self-governance.[45]  However, although the merchants may have exercised significantly more authority in the fair court than in the central royal courts, the central courts are not necessarily the appropriate basis for comparison.  After all, the fair court of St. Ives was operated by the abbot, not by the king.  Furthermore, St. Ives was not a free town, but a vill whose residents were largely of villein status and who owed tenurial obligations.[46]  The abbot therefore had direct, personal jurisdiction over the many residents of St. Ives who appear in the court rolls, and they came before the fair court as before the court of their lord.  In fact, they joined the merchants in rendering decisions—these are the “others of the court” mentioned in Swavesey v. Pope.[47]  If the process followed in fair courts were compared to that of manorial and other seigneurial courts, one would find that it is actually quite standard—and that participatory procedure is not an innovation of the merchants.

An examination of the records of nearby manorial courts shows a structure very similar to that of St. Ives.  In 1295, in the court of the manor of King’s Ripton (which, like St. Ives, was part of the patrimony of the abbot of Ramsey), a legal question is “inquired by the township,” which says that the plaintiff “has produced sufficient suit.”[48]  Clearly, this procedure seems to involve the same population that is judged by the court in the process of making judgments.  In 1249, in the court of the manors of the abbey of Bec, Richard Blund asks for a jury “of the whole court” to determine whether he has the greater right in a specific piece of land; after investigation, “the whole court say upon their oath that the said Richard has greater right in the said land than anyone else.”[49]  The “whole court” seems very clearly to be an assembly of suitors rather than a single judge, especially given that they pronounce their judgments by oath.  Cases are delayed in the abbot’s honour of Broughton in 1295 because “the present court is thinly attended by suitors,” and in King’s Ripton in 1293, “the whole court” requested a delay in giving judgment until the next court session—an event that is only comprehensible if the “whole court” includes the suitors and not the steward alone.[50]

These examples support the assessment of F.W. Maitland that although the steward may have presided over a court, often he “was not the judge; the suitors were the judges.” Maitland cites a case of 1226 from Bracton’s Note Book in which the sheriff of Lincolnshire was forced to adjourn the court “because he had quarreled with the freeholders whose business it was ‘facere judicia.’”  To make judgments—even in a royal county court—was the responsibility of the suitors, although the steward or sheriff “is the presiding magistrate, . . . controls the whole procedure, issues all the mandates, [and] pronounces the sentence.”[51]  As in the fair of St. Ives, there were no fine distinctions in personal jurisdiction in most local courts, “no distinctions in procedure between cases which concern freeholders and cases which concern customary tenants”; villeins could even be suitors and “do justice upon their lord,” even as they owed him services “of a very ‘villanous’ kind.”[52]   In the end, the injunction of Lex Mercatoria that judgments are to be rendered by the suitors of the court and not the seneschal does not seem very far removed from the principle cited by Maitland that “Curia domini debet facere judicium et non dominus.”[53]

Such a system of justice may seem quite alien to those familiar with modern courts, where an appointed judge decides questions of law and a jury tries questions of fact.  In determining who had the greater right to a piece of land, the jury of Bec was of course making judgments of both fact and law, determining the proper custom to apply as well as how the parties stood with regard to that custom.  Indeed, Maitland seems to hint that the exception to the rule and the true innovation of the period was the more formal procedure of central courts, and not that of the fairs.[54]

            2. Positive Evidence

The evidence presented thus far has been negative, arguing against the thesis that the judicial power of the fair court was specially reserved for the merchants.  Yet one can also find positive evidence of the influence of the abbot over the court’s business.  First, the merchants had little opportunity to escape the abbot’s jurisdiction.  In 1287, Robert of St. Leonards and Ralph Pole sued Richard Elsdon; instead of going to court, they asked for a day in which to negotiate a settlement, and “submit themselves in all things to the arbitrament of Bartholomew of Acre.”[55]  Yet this verdict was accepted only after the defendant paid 12d. for the amercements of both parties.[56]  This is the only case in all the records collected by Gross and Maitland to contain a clear mention of private arbitration.  There are many cases where parties sought to settle their cases out of court, but there is no indication in any of them that the parties ever submitted themselves to the decision of an arbitrator, nor was the fair court ever called upon to enforce an arbitral award.  Additionally, in each case where the parties seek leave to make concord on their own, they must do so “saving what should be saved”—with the leave of the steward (and, by implication, of the lord), free to agree on their own only so long as they protect the lord’s rights, “especially his right to demand a fine.”[57]  In other words, this tribunal is not merely a voluntary mechanism for resolving private disputes among individuals, but a coercive public forum that can and does demand payment even from parties who decide not to litigate.

Second, the abbot’s officers exercised significant discretionary powers in the fair court, similar to those they might possess in manor courts.  For instance, through the office of the steward, the abbot had the authority to pardon offenses and remit fines.  Pardoning is used twenty-five times in the cases described by Gross and Maitland, and some of these pardons may have indeed been intended to correct a perceived miscarriage of justice.[58]  Unsuccessful plaintiffs were normally fined for their “false claim,” and eight pardons were used to excuse plaintiffs in such cases—perhaps because the steward chose not to add a fine on top of the suffering alleged in their plea.  In the case of Tempsford v. Chaplain (1291), the plaintiff’s allegations against an intervening party had been supported by the results of an inquest, which was later thrown out because it had been undertaken by the steward ex officio; although the intervening party successfully waged his law, the steward chose to pardon the plaintiff for his false claim.[59]  Four more cases involved procedural errors; Colletta Donel lost her case against Robert Woodfull when it was revealed that her real name was Hawise, but the warden of the fair—an official of the abbot who had no prescribed role in the fair court—chose to remit her fine.[60]

Pardons could also be granted for less noble purposes.  Although poverty was a common ground for pardons, accounting for another eight of the twenty-five cases, these judgments were not always objective.  In 1293, a merchant selling dishware ‘at the backs’ (i.e., away from the main street of the fair) was pardoned for his poverty and immediately thereafter paid 12d. to the lord abbot to sell there lawfully.  The payment shows first that he was hardly impoverished, and second that the pardon may have been part of a deal to increase the abbot’s revenue.[61]  Those involved with the abbot’s administration frequently received pardons:  the court pardoned the bailiffs of the fair in a case involving improper distraints, and when the abbot was found to have lent houses to prostitutes through an attorney, the attorney’s fine was quickly forgiven.[62]  The court also pardoned defendants “at the instance of” various intervenors “and other friends,” whose intervention was no doubt influential.[63]  The ability to grant pardons at the steward’s discretion made the favor of the abbot a valuable commodity, and it reinforces the vision that the fair court was not fundamentally different from its sister court of the manor.[64]

Third, the records of appellate royal courts provide convincing evidence that the fair court was well-integrated into the contemporary legal framework.  In 1315, Simon Dederic of Guisnes appealed a decision of the fair court of St. Ives to the court of King’s Bench.  Specifically, he brought suit against the abbot of Ramsey and against one of the abbot’s bailiffs for executing what Guisnes considered an improper judgment—the abbot was being held personally responsible for the actions of the St. Ives court.[65]  A similar practice can be found in the court of the Exchequer in 1321, where the abbot of Westminster was sued for the actions of his bailiff pursuant to an order given by the fair court of Westminster.  The merchant plaintiffs argued that in arresting their goods, the bailiff acted as “minister of him, the abbot, of the . . . fair aforesaid to do those things that concerned that liberty and the jurisdiction thereof in the place and name of [the abbot], which things the abbot ought to have done if personally, etc.”  On that basis, the act of the bailiff “ought to be regarded as the act of the abbot himself, when as bailiff . . . exercising the jurisdiction of the abbot[,] he arrested the said goods. . . .”[66]  Finally, we see that the merchant courts did not have a monopoly over pleas arising out of the fairs.  In 1276, Richard Lombe brought suit in the court of King’s Bench for an assault that had taken place in the fair of St. Ives, when five men “beat and wounded him and cut off his left ear and so ill-treated him that his life was despaired of.”[67]  Similar cases can easily be found in the St. Ives court rolls, but Lombe chose to sue in the royal courts instead.[68]

The combined message of these central court records is that the fair courts did not possess any source of judicial authority independent from existing patterns of lordship.  In the context of the time, the fair court operated exactly as a manor court would have, with the suitors drawn from the population to be judged.  The lord held his fair court by royal grant, and when its decisions were in error, the courts of the lord king were competent to hear the appeal and apply the proper remedy.[69]  Furthermore, though he established courts to hear mercantile pleas, the king did not sacrifice his original jurisdiction over fairs and markets.  Perhaps nothing else should be expected from the records of royal courts, but the evidence does not betray even a trace of the idea that cases arising in “merchant courts” are properly resolved only through a decision of the merchant community.[70]

Fourth, there is a striking absence of any clear line between the business of the fair court and the business of other courts belonging to the abbot of Ramsey.  When “a certain carter” in 1287 accidentally knocked three tiles off a house belonging to the abbot, he was fined 3d. in the fair court.  Yet there is no explanation why the case is heard in the fair court rather than that of the manor, which presumably would have been more appropriate.[71]  Additionally, at least one record survives in which a case is removed from the fair court to that of the weekly market in St. Ives, which was granted to the abbot in 1293.[72]  In 1316, Ralph of Houghton sued John Christian in a plea of debt, and after the defendant was distrained by “a tapet, a barrel, two hogsheads, and a tankard” and still failed to appear, the plaintiff requested that the case be transferred “to the court of the market together with the said distresses.”[73]  No explanation is given for the transfer, but as the case was heard on May 29, very close to the end of the fair court’s session, the plaintiff may have chosen to keep his case alive in a weekly court instead of waiting until the next fair. 

The same phenomenon can be found in other manorial courts.  The abbot of Ramsey held his honor court, where his free tenants would be justiced, in the manor of Broughton.  This manor lay within Hurstingstone hundred, a private hundred which the abbot held of the king, and we can see examples of cases transferred without explanation from one court to another.  In 1256, Richard King sued one of the abbot’s bailiffs for trespass in the honor court; the parties were given a day “at the hundred.”[74]  On August 31, 1235, a servant named Laurence accused John le Megre in St. Ives of stealing a sheep.  Laurence offered to prove that the sheep was his master’s at the honor court the next day.  There was no need for the case to be heard there—Warren Ault, in recounting the dispute, notes that “the matter is scarcely in its field”—but the manor court was then no longer in session, and Laurence might have had to wait for justice until the following spring.[75]  The case was eventually disposed by assigning it to yet a third forum, the hundred court, where it was heard the next Monday.[76]  The ability to move from one court to another implies that the abbot’s justice was to a certain extent fungible.  Regardless of the tribunal’s name or function, it was ultimately the court, not of the merchants, but of the abbot of Ramsey.

Fifth and finally, there is evidence from what any good merchant would consider an incontestable source:  the fairgoers’ pocketbooks.  When John Beeston of Nottingham sued Gilbert Chesterton of Stamford in 1275 for the lordly sum of £10 principal and £10 in damages, he promised one-third of any money he would receive to the lord abbot “that he may have aid.”[77]  A significant number of litigants repeated this gesture; four merchants accused of selling cloth with a false measure gave the abbot 40s. “for his grace and favour.”[78]  The merchants who traded at St. Ives made their living from trade; they would not been so willing to make payments if they did not believe that the abbot could give them something in return.  There would be no reason for the parties to pay such substantial sums to the abbot in a court organized and operated by merchants alone. Even in cases that did not concern the abbot directly, the parties at the fair court knew where their justice was coming from.

C. Legislative Authority

On what legal principles did the court of St. Ives rely?  Unfortunately for our inquiry, the fair court was a forum of expedience, not one preoccupied with the labored examination of statute and precedent.  When a certain Luke sued Gilbert Tarter for failure to pay 7s. rent, the fair court concerned itself only with determining the facts, and would likely have thought it absurd to ask which specific principle the alleged actions had violated.[79]

Even if such principles were debated, such debates would rarely be preserved in the records.  A treatise entitled “The Manner of Holding Courts,” written circa 1342 for the abbey of St. Albans, discussed the dilemma of a defendant in a court like St. Ives who acknowledged a debt but who wished to show his innocence under the law—for instance, because the debt had been paid.[80]  In such a case, the defendant should make a general denial of the allegations and then make his proof “by his law” (by his oath) or “by the country” (by a jury inquest).[81]  In either case, the defendant’s specific arguments would not be introduced into the record, which would reveal only successful or unsuccessful oaths or verdicts of “guilty” or “not guilty”—making it impossible to determine the facts of the case and concealing the substantive law that was applied to them.  As in the contemporary common-law courts, the inscrutable methods of proof prevented a clear distinction between law and fact.[82]  Indeed, the proceedings of the fair court are even more difficult to decipher, as the rolls habitually confuse actions of contract, debt, and trespass with a freedom that would be shocking to a doctrinaire common lawyer.[83]

Yet the fair court had established rules of substance and of procedure, even if it rarely presented them in an explicit manner.  To understand them, we must leave behind the modern assumption that courts decide cases only on the basis of positive, written, enacted law; as Fritz Kern has noted, the fair court’s contemporaries would have likely considered true law to be “unwritten and unenacted.”[84]  The substantive principles on which the fair court operated seem in large measure to have been general principles of equity.  Promises ought to be kept; debts ought to be paid; trespasses ought to be punished.  These may be addressed by custom, but they are also matters of simple justice, which it was the duty of the fair court to provide.

For some, these principles constituted an alternative legal system, a “voluntarily produced” law merchant.[85]  Indeed, there are cases in the St. Ives records in which decisions are reached “secundum legem mercatoriam,” which Gross translates as “according to the law merchant.”  The translation is not uncontroversial, but a full examination of the meaning of this phrase must be postponed until the next chapter.  For the moment, assuming the translation to be accurate, it is enough to make two observations.  First, the merchants at St. Ives were subject to many legal regimes other than “the law merchant,” including the ordinances of the abbot, the statutes of the king, and the customs and principles of equity that constrained and modified these two authorities.  Second, the law merchant as practiced at St. Ives was not an exclusive law for a well-defined merchant class. Taken together, these observations gravely weaken the argument that the merchant community exercised the primary legislative authority within the fair—that the merchants were sole authors of the laws by which they were privileged to be governed.

            1. Alternative Sources of Legal Principles

When it was invoked at St. Ives, the law merchant was cited as a specific motivating principle for the court’s deliberations in an individual case.  However, it was not the only principle cited in this fashion—the regulations of the abbot, the statutes of the king, the dictates of custom, and the principles of equity are all used at various times to justify decisions of the court.  Indeed, the records of the fair court give very little indication of where one type of authority ended and another began. To adopt T.F.T. Plucknett’s phrase, the fair court was wound within an “elastic web” of legal authority, in which the will of the lord and of the lord king would have significant influence, although not necessarily complete adherence.[86]  As a result, we cannot read “according to the law merchant” into the court’s deliberations in cases where it does not appear; we must take the documents as they are, and consider the law merchant as one among many alternative sources of legal principles.

                       a. Abbatial Authority

To investigate the substantive legal principles that the fair court applied, we must look first to the manorial institutions that the court most closely resembled.  As was argued in the previous chapter, the fair court can in many ways be understood as a manor court of the abbot of Ramsey; in Lloyd Bonfield’s formulation, it “established and enforced village by-laws, elected local officials, enquired into disturbances of public order, . . . and [monitored] payment of fines and the performance services owed to the lord,” all in addition to resolving disputes among parties subject to its jurisdiction.[87] Tenurial obligations related to the fair, such as the requirement that the vill of Houghton supply watchmen,[88] were addressed in the fair court along with unrelated issues such as fire safety regulations[89] and complaints about a neighbor’s garbage piles.[90]

In its capacity as an administrative institution of the abbot, it is only natural that the fair court would make decisions based upon the authority of the abbot’s will.  An entry from 1315 fines a clerk six times for successively failing to “present the articles of the fair, as is the custom [prout moris est].”[91]  Exactly what these articles contained, we do not know; however, we can assume that they served to regulate conduct within the fair.  In 1287, Richard of Banbury was accused of selling russet cloth “at the backs,” meaning away from the main street of the fair—an act that was considered “contrary to the ordinances [of the fair].”[92]  Similarly, letting houses to prostitutes was described in 1300 as “contrary to the ordinance of the fair [contra statutum ferie].”[93]

As it enforced the will of the abbot of Ramsey, the fair court enjoyed a substantial degree of flexibility in the principles it applied.  The ten-year-old John, son of William, son of Agnes of Lynn was found stealing a purse near the bridge in St. Ives in 1291; however, the court reasoned that “because he is not old enough to sustain the judgment which is ordained and provided for such evil-doers,” he was instead ordered to leave the vill.[94]  Similarly, that same year, when Roger of Pontefract and his wife Beatrice were convicted of stealing shoes worth 2¹¤₂d., it was judged that “because the said shoes are of little value, wherefore no one may lose life or limb,” they were ordered to “leave the vill of St. Ives and never more hereafter return thereto.”[95]  The court’s discretion could also be applied out of less humanitarian concerns.  The successful resolution of a case would occasionally depend on the current diplomatic concerns of the abbot; judgment against the defendant in Lolworth v. Soaper (1300), who was “of the homage of the bishop of Ely,” was suspended “owing to a love-day [i.e., a time to make concord] between the bishop and the abbot, which has been granted and at which they are to treat concerning the various matters in dispute between them.”[96]

Despite the flexibility that his authority allowed, the power of the abbot to work his will through the court was not unlimited.  In many respects, the abbot’s actions were tethered by the principle of custom, which gave claimants another source of legal authority.[97]  In 1287, Robert Pole and six others sought permission to sell woolen cloths and canvas in the same stalls, a practice prohibited by the abbot’s regulations.  For the significant sum of 20s., their request was granted for one year only, and they were required to take an oath that “never in the future will they make such a sale there, or demand this as a custom, save by leave of the warden and the steward of the fair.”[98]  The fact that the abbot’s officials would require a solemn oath to prevent a claim of custom shows the influence that such a custom might have wielded had it been allowed to form, as well as the power of custom to restrict the abbot’s freedom of action.[99]

                       b. Royal Authority

This mix of authority and constraint was not unique to the abbot; the king’s will found its expression in St. Ives in a similar way.  The fair court often acted as if it were subject to the king’s will.  When faced with a direct royal command—such as the order in 1315 to seize the goods of all Flemish merchants present at the fair—the St. Ives court immediately sought to comply.[100]  It also obeyed the terms of the king’s charters, of course giving pride of place to those that outlined the privileges of the abbot,[101] but also accepting as valid royal grants that exempted individuals from the fair court’s jurisdiction.  For instance, in Almaine v. Flanders (1270), the fair court exempted foreign communities from judgment if they could present royal charters granting them immunity.[102]  Those of the city of London had the right to be tried in their own courts, and the fair court respected this right when it was invoked.[103]  The king reserved the rights to establish standards of weights and measures and to take prises of goods for the royal wardrobe, and the court rolls contain records of these procedures.[104]  Furthermore, the king could still exercise some legislative control over the fairs of his realm, as when he granted privileges in St. Ives to the bishop of Ely or exempted foreign merchants from many taxes and tolls in the Carta Mercatoria of 1303.[105]

Indeed, the court of St. Ives was occasionally called upon to enforce royal rights that had nothing to do with its own jurisdiction.  In 1293, Thomas of Grantham sued the abbot of Thorney for taking 6d. toll from him in the abbot’s market of Yaxley, even though “he and all citizens of London are free and quit of such demands in all cities and boroughs throughout the realm of England.”[106]  The record leaves no indication of why the abbot of Thorney was subject in this case to the abbot of Ramsey’s jurisdiction; however, it does show clearly that the fair court could and did execute judgments based on the royal will.[107]

The extant records from St. Ives coincide with the explosion of legislation under Edward I, and one might expect a famous age of royal statutes to bring a clearer delineation of textual authority in the fair.  Occasionally, a royal statute does effectively change the practice of justice at the fair court.  Before 1275, for instance, a creditor could attempt to collect not only from the individual debtor, but from the debtor’s entire community.  Indeed, much of the litigation examined by Gross in the fair court rolls of 1270 and by Maitland in the rolls of 1275 arose out of such disputes.[108]  The Statute of Westminster I, however, exempted English communities from this practice, and this change is clearly reflected in the records—at no point after 1275 are the goods of an English community seized in an individual dispute.[109]

Yet changing local practice through royal statute was not always easy.  The difficulty is illustrated in the matter of “forestalling,” in which merchants intercepted supplies on the road to a fair or market in an attempt to manipulate prices.  In 1291, William Ram was summoned to the fair court because “he is accustomed to meet men bringing provisions to the fair, which he buys, and he thus causes great dearth of such provisions in the vill to great damage of the merchants.”[110]  In this record, there is no mention of the word ‘forestalling,’ and no indication that any ordinance has been violated; it is merely an inconvenience to the fair.  Around 1300, however, Edward I issued the Judicium Pillorie, condemning those “Forestallers” who “buy outside of the town, to the intent that they may sell the same in the town more dearly.”[111]  The next case of forestalling recounted by Gross seems to take note of this royal interest; in 1312, the local jurors accused William Kemp of Bury St. Edmunds of forestalling wool “contrary to the custom of the fair, to the great damage and prejudice of the lord king.”[112]  Though the mentions of the word and of the king seem to be an allusion to the statute, it also demonstrates the resilience of local custom; Kemp’s main offense was to have acted “contrary to the custom of the fair,” not to have violated a royal statute.[113]  A royal charter of August 1302, granting the status of a free borough to the town of Berwick-on-Tweed, reiterated at great length the prohibition on forestalling as it enumerated the town’s customs—indicating that the statute alone may not have been enough to change the customs at the local level.[114]

In many cases, the provisions of royal legislation could be altered in their implementation by the court of St. Ives.  In the matter of currency, the St. Ives court took judicial notice of Edward I’s currency reforms, stating in May v. Stanground (1300) that the debased “crockards and pollards” had been “prohibited by the lord king throughout all England” and requiring the defendant to pay a debt in legal tender.[115]  However, soon afterward the court accepted without hesitation the use of crockards and pollards to help pay damages in Yarmouth v. Fick (1300).[116]

A similar process of alteration is seen with regard to the Statute of Merchants.  In 1287, the fair rolls record that the communities of merchants at the fair of St. Ives “were assembled to hear the command of the lord king in accordance with the new form of his statute touching merchants frequenting English fairs.”  The “new form of his statute” is believed to be the Statute of Merchants, issued at in Westminster in 1285, which supplanted the 1283 Statute of Acton Burnell.[117]  As a result of this assembly, the merchants would have presumably been familiar with the procedure for debt collection that the statute established.  However, after the statute is mentioned in this record, it virtually disappears from the rolls.  In fact, the St. Ives records appear to contain only one case where the Statute of Merchants is invoked, namely Hereford v. Lyons (1293), where a debtor is imprisoned “in accordance with the statute of the lord king [secundum statutum domini regis]” until he can find security for the payment of his debts.[118]  Even in this sole example, the fair court does not adhere strictly to the terms of the statute, as the debtor is given an opportunity to sell his goods and repay the debt before he is arrested—a practice allowed by Acton Burnell but prohibited by the Statute of Merchants, which required that the debtor be imprisoned immediately upon a showing of default and that he remain in prison until the debt were paid in full.[119]

Moreover, some royal statutes were simply ignored altogether.  Clause 35 of the Statute of Westminster I (1275) forbade the officials of non-royal courts to seize goods in cases involving “contracts, covenants, and trespasses done out of their power and their jurisdiction . . . nor within their franchise where their power is. . . .”[120]  This statute seems to be entirely ignored, even by those who would have an interest in citing it so as to avoid punishment.  For instance, Saddington v. Langbaurgh (1287) arose entirely out of a dispute that took place in the town of Bedford, and the plaintiff in Titchwell v. Burdon (1293) had pursued the defendant for almost a year for a debt incurred in Boston before catching up with him in the St. Ives fair.[121]  To be treated so unevenly, these statutes cannot have been understood as strict, positive law; instead, the fair court seemed to follow more closely the interpretation of Plucknett described earlier, that statutes “in essence were merely modifications of the elastic web of the customary common law.”[122] 

The elastic nature of the fair court’s legal principles can also be seen by examining the institution of the peace, the promise of safe conduct extended by many medieval lords to those under their jurisdiction.  For instance, Henry I’s charter of 1110 granting the fair of St. Ives to the abbot of Ramsey stated that “all coming there, staying there, or going away from there, may enjoy my firm peace.”[123]  Yet the peace of the abbot of Ramsey receives considerably more interest in the documents than that of the king—likely because it was the court of the abbot of Ramsey to which the plaintiffs appealed.  Most of the cases of assault are said to occur “contra pacem domini Abbatis,” and the phrase appears repeatedly in cases of trespass, slander, and breaking and entering.[124]  The formula even makes its appearance in a case of debt and contract, where the defendant was accused of having violated the peace by taking possession of a horse before he had sufficiently paid for it.[125]

Each of these references could have cited the king’s peace instead; indeed, in Chapman v. Boston (1275), the plaintiff accused the defendant of assaulting and robbing him on the king’s highway “against the peace of the lord abbot and his bailiffs.”[126]  However, the king’s peace was almost never invoked by fairgoers, and the only reference to it in the St. Ives records seems to be in error.  In 1270, Gottschalk of Almaine sued the communities of merchants from Flanders because the bailiffs of the countess of Flanders had taken from him fourteen sacks of wool “against the peace of the realm [of England]” while he was trading there.  However, the seizure had taken place in Flanders by officers of the countess, and it would seem that those trading in Flanders are not protected by a peace offered by the king of England.[127]  The fact that the jurisdictional lines are drawn so unclearly seems to indicate that the peace was not viewed at St. Ives as a distinct set of substantive legal protections, but rather an equitable guarantee of protection from harm.  After all, the “peace of the realm” violated by the countess of Flanders cannot be understood as a specific prohibition.[128]

                       c. Conclusions

As is clear from the above discussion, the authority of the king and that of the abbot were not entirely distinct in the fair court’s records, and may not have been distinct in the minds of the fair court’s suitors either.  Several cases in the court rolls cite royal and abbatial authority almost interchangeably, and occasionally combine it with customary provisions.  For instance, selling “at the backs” was usually referred to in the court rolls as an infraction against the abbot, or (as above) as contrary to an “ordinance of the fair.”  However, when the merchants of Louvain and Malines were found engaging in the practice in 1315, it was called “contrary to the custom of the realm etc.”[129] Stephen of Reedness that same year was accused of selling at the backs “to the contempt of the lord king and to the great damage of the said abbot”; he was ordered to appear to answer “the lord king and the abbot of Ramsey,” and an inquest was begun “on behalf of the king etc.”[130]  And in pleading against Nicholas Crowthorpe of Northhampton in 1288, the bailiff Philip Pollard cited as authorities the “ordinances of the fair,” the “charter granted by the lord king,” the “peace of the lord abbot and his bailiffs” and the “law and custom of the [St. Ives] fair” all at once.[131]

The fair court therefore cannot be seen as participating in a single legal tradition.  The abbot’s dictates, the king’s statutes, the residents’ customs, the suitors’ sense of justice—all these participated in an organic, ‘living’ law.  The principles of the fair courts were not merely grounded in the will of the merchant community, even if traders rendered the decisions of law and fact; instead, the authority of the lord and of the lord king was keenly felt in the fair’s day-to-day administration.  The law merchant was not merely ‘what merchant courts do,’ but rather one among several rationales that could be invoked to support a legal decision. As a result, the St. Ives evidence does not support a portrayal of the law merchant as the only law by which the merchants were bound.

            2. The Law Merchant and Non-Merchants

The law merchant may not have been the only legal authority at St. Ives, but it was an authority, and one of documented application.  To whom, however, was it applied?  It is tempting to understand the law merchant as the private law of merchants.  Under this interpretation, merchants possessed the privilege of being judged by the law merchant in merchant courts, much in the same way that churchmen had the right to be judged by canon law in ecclesiastical courts.  Harold Berman makes this analogy explicitly, arguing that the lex mercatoria was the mercantile equivalent of canon law.[132]  In this, he follows the position of William Mitchell, who argues—largely on the basis of Continental examples, although he does have some evidence from England—that the law merchant was a guild privilege, “in its origin a personal law, the law of a special class.”  Merchants, he states, had the ability to be judged by the law merchant as opposed to the common law by virtue of their profession; Mitchell calls this class-based choice of law a “characteristic feature” of the law merchant “throughout the Middle Ages,” and argues that it persisted in England until the seventeenth century.[133]

However, this interpretation does not seem to fit the evidence from St. Ives.  As Frederick Pollock and F. W. Maitland described it, the law merchant “seems to have been rather a special law for mercantile transactions than a special law for merchants.”[134]  At St. Ives, appeals to custom are by no means limited to a merchant class.  Non-merchants could invoke the protection of the customs of the fair or even of the law merchant, and the records contain a theoretical argument that men of all social classes can be considered “merchants” for the purpose of the law merchant’s protection.  In other words, the records present the law merchant as a general body of customs applying to commerce rather than a set of privileges granted to a specific class.

The fair court records do not contain a single example of a challenge to a party’s social standing to have a case heard by the court or to be judged according to the law merchant.  After all, questions of a theoretical nature are rarely raised in this very practical forum.  Yet the records do establish that the jurisdiction of the fair court of St. Ives, and even its application of the law merchant, was in no way restricted to merchants.  Some of those who came before the fair court were indeed members of merchant guilds or mercantile communities; Gottschalk of Almaine, who by his name was almost certainly a German merchant, was also a “burgher of Lynn.”[135]  However, individuals of all classes and occupations appear in the court rolls of St. Ives:  in addition to merchants, local and foreign, we see a parade of monks,[136] knights,[137] townsmen,[138] bakers,[139] carters,[140] servants,[141] and those even lower on the social scale.[142] St. Ives was in a rural area; before its incorporation in the late nineteenth century, it was not a city with independent legal status or a free town where merchants made the law.  Some residents farmed, others provided services, and many did both; some residents were even quite well off.  But they were almost all were unfree and had various obligations to their lord, notably the pannage of pigs, hay-making, tallage, and payments on the marriage of daughters and for grazing pigs in the forest.[143]  These individuals of servile status, who would be classified as villeins by the common law of the time, were judged in the fair of St. Ives under the same rules as great merchants; they could still call themselves “merchants” and even seek judgments according to the law merchant.

Consider Nicholas Legge, a butcher of St. Ives found in the rolls as an ale taster and juror. In his case against Nicholas of Mildenhall in 1291, Legge sought to intervene in a contract between Mildenhall and another butcher, as he was allowed to do by “the usage of merchants.”  Mildenhall admits that “the law merchant does indeed allow every merchant to participate in a bargain made with a butcher”; clearly, both parties include Legge in the category of “merchant,” and the court raises no objection to the argument.[144]  Yet Legge was a resident of the vill—he was elected constable among residents of Bridge Street in 1302—and there is no indication that he was of unusual status.  In any event, he was certainly no member of a corporate merchant guild.[145]

One can even find in the fair rolls a rare theoretical discussion of the jurisdiction of the law merchant.  In the 1312 case of Fulham v. Francis, two servants of the abbot of Burton-on-Trent appear in court to prove, “according to the law merchant,” that a horse being seized to pay a debt actually belongs to their master.  When forced to defend their right to testify, they cite a point of law and claim that it applies to “any merchant . . . whosoever he may be, whether earl or baron, bishop or abbot, or any such person of rank.”[146]  More importantly, the plaintiff never contests this expansive definition of “merchant”—he only claims that the servants should not be allowed to act as their abbot’s attorneys.

This all-inclusive definition is accepted without objection by the court and seems to settle the question of whether the law merchant was a private law.  If the classification of “merchant” has any meaning as an occupational description or as a name for a social class, it cannot include earls, barons, bishops, or abbots; these groups, especially the churchmen governed by ecclesiastical law, possessed a legal status profoundly distinct from that of merchants and townsmen.  Indeed, the writer Gerard Malynes would later specifically exempt “Clergymen, noblemen, gentlemen, soldiers, [lawyers], publick officers and magistrates” from the ranks of the “merchants” whom the law merchant could protect.[147]  The understanding at St. Ives seems to have been that a “merchant” is anyone who engages in trade, which would mean that the law merchant was really a commercial law of a general nature, not a personal one.  If the law merchant were the indeed the legal privilege of a class, that class must have been so inclusive as to be historically and legally meaningless.

D. Conclusions

A later historian, comparing the procedure of the St. Ives courts to those of King’s Bench or Common Pleas, would doubtless find significant differences between the two.  In comparison to the royal courts, the merchants exercise more power over their own fate; as a community, they are allowed to share in making judgments, and the court is willing to take notice of their customs.  But the central royal courts hardly represented the only legal tradition in England.  A manual on “How to Hold Pleas and Courts,” written circa 1274 by John of Oxford, a monk in the priory of Luffield, reminded the reader that there was one manner of pleading in the court of King’s Bench, another before the justices in eyre, another in county and hundred courts, and still another in the courts of knights, freeholders, or lay or religious lords.[148]  These individual courts did not always enforce the common law of the land, but might possess their own customs; a good steward “should know the customs of that county, hundred, court or manor, and the franchises pertaining to the premises, for laws and customs differ in divers places. . . .”[149]

The type of justice practiced by manorial and seigneurial courts is likely more ancient than that of the courts of common law, and it may have been more familiar to the litigants at St. Ives.  The practices described in “The Court Baron,” a popular instruction manual for the stewards of seigneurial courts in the late thirteenth and early fourteenth centuries, very closely resemble those of the fair court.[150]  In one sample case included in this text, a merchant defamed another and caused him to lose credit for a purchase; the defendant is allowed to wage his law six-handed at the next court.[151]  Exactly the same procedure is followed in cases at St. Ives such as Rushbrooke v. Woodfool (1293) and Woodfool v. Pors.[152]  In another sample, the defendant in a case of debt asks for a love-day in an attempt to settle the dispute.  The steward grants the love-day, but does so “saving the right of the lord in all things”; an essentially identical procedure occurred in Cousin v. Huy (1270).[153]  The proceedings in the St. Ives rolls are also similar to those described in the two manuscripts of “The Manner of Holding Courts”—one composed circa 1307 for John de Longueville, a lawyer who represented the borough of Northampton in Parliament,[154] and another composed circa 1342 for the Abbey of St. Albans.[155]  One must remember that these treatises were not written to address mercantile courts specifically; rather, they were intended to be generally applicable to proceedings in seigneurial courts throughout England.

When viewed in this context, the experience of merchants at the fair of St. Ives is hardly exceptional.  The appropriate conclusion from the evidence of the fair of St. Ives is not that the merchants were given a unique license by existing authorities and allowed to determine their own affairs.  Instead, the fair court followed existing models of seigneurial courts—a perfectly sensible conclusion given that it was a seigneurial court, a court that “has a lord.”[156]  One should not see the involvement of merchants in rendering decisions as legal independence, any more than one should interpret the participation of the unfree King’s Ripton suitors as self-government.  The mercantile courts of thirteenth-century England were not courts ruled by the merchants; instead, in James Steven Rogers’ phrase, they seem much more like “local courts of general jurisdiction held at places where a great deal of trade took place.”[157]

In 1473, a foreign merchant sought an exemption in the court of Star Chamber from certain English shipping regulations.  Although English law required that he register the number of sailors and the name of the vessel in exchange for safe-conduct, the merchant protested that he should not be “bound by [English] Statutes, which Statutes are introductive of new law.”  As a foreigner who was unfamiliar with the peculiarities of English law, the merchant argued, he should be held to obey only those rules “declarative of ancient right, that is to say, Nature, etc.,” and his case should be “determined according to the law of Nature, in the Chancery.”  Without deciding the merits of the case, the Chancellor agreed that the merchant should not be forced “to abide a trial by 12 men and other solemnities of the law of the land”; rather, his case should be heard in the Chancery according to “the law of Nature, which is called by some ‘Law Merchant,’ which is law universal throughout the world.”[158]

For hundreds of years after 1473, influential writers on English commercial law echoed the language of this court record.  In Consuetudo, vel Lex Mercatoria (1622), the merchant Gerard Malynes spoke of the law merchant as “a customary law, approved by the authority of all kingdoms and commonwealths, and not a law established by the sovereignty of any prince”; for Malynes, the “customary law of merchants” held a “peculiar prerogative” above all other customs and laws in that it “is observed in all places.”[159]  Similarly, in his Question Concerning Impositions, seventeenth-century lawyer John Davies stated that the “commonwealth of merchants hath always had a peculiar and proper law to rule and govern it; this law is called the Law Merchant, whereof the laws of all nations do take special knowledge.”[160]

Indeed, the vision of the law merchant as a single entity common to all nations has persisted in the work of modern historians.  In his classic history of English law, William Searle Holdsworth emphasizes the “cosmopolitan character of the Law Merchant,” arguing that while “usages differed from place to place,” it was generally recognized that the law of markets and fairs and the law administered by mercantile courts in the boroughs was “a special law merchant, differing from the ordinary law”—a “species of jus gentium,” the law of nations, rather than “the law of a particular state.”[161]  William Mitchell noted the “strongly marked international character” of the law merchant, asserting that “the mainlines of [its] development were everywhere the same.”[162]

Yet in trying to understand the nature of medieval commercial law, a modern reader is struck by the discrepancy between the soaring rhetoric employed by Malynes, Davies, Holdsworth, or Mitchell and the unassuming arguments found in the fair court rolls.  Some 200 years before the Chancellor’s decision, Gerard of Cologne was told in the St. Ives court that he was not sufficiently equipped to wage his law “according to law merchant” and was sent back to find more compurgators; was this an invocation of a universal principle, a tenet of the Law of Nature?[163]

We cannot assume that the suitors at St. Ives were drawing on the same concepts as the writers of the early modern period or even the foreign merchants of the late fifteenth century.  In fact, the best evidence from the original sources seems to be that they were not—that the law governing markets and fairs was not a “law universal throughout the world,” nor did the suitors of St. Ives act on the presumption that it was.  Within the St. Ives court, among mercantile and royal courts throughout England, and in the provisions of royal charters and statutes, one can find evidence for significant variations in the principles of mercantile law—variations that may justify abandoning the notion of a universal law merchant.

A. “The Law Merchant” Within St. Ives

What did the St. Ives court believe itself to be doing when it decided an issue secundum legem mercatoriam?  As in the case of royal statutes and abbatial ordinance, the fair court did not seek exacting compliance with a specific code.  Rather, it sought in each case to provide an equitable solution to an individual dispute.  Indeed, the very use of the term “the law merchant” may be inappropriate, as the fair court rolls demonstrate substantial variation in the principles established secundum legem mercatoriam as well as in the terms employed to describe their source of authority.

Of the 332 cases examined by Gross and Maitland, eleven are decided (at least in part) “according to the law merchant.”[164]  These cases offer no easy characterization. They generally involve matters of procedure, such as how long a plaintiff must wait to receive the attached goods of a defendant in default,[165] but they also include important substantive questions such as when a sale is complete,[166] as well as seemingly arbitrary usages such as the right of outside butchers to participate in any sale of meat or fish.[167]  Sometimes a special assembly of merchant communities invoked the law merchant’s authority; at other times, the court included the phrase almost as an aside.[168]

The characterization is made more difficult by the fact that the law merchant seems to have been inconsistently applied.  For example, when Gerard of Cologne tried to claim his casks of wine as mentioned above, he was instructed “according to law merchant” to return six-handed (i.e., with five compurgators).[169]  However, in Tempsford v. Chaplain (1291) and in Fulham v. Francis (1311), only two compurgators were considered necessary “according to the law merchant” to establish ownership of goods that had been attached.[170]  Given the relative rarity with which the phrase appears in the court rolls (these are, after all, three out of a total of eleven cases), the variation must be regarded as significant.[171]

One can find similar variability in the treatment of jury inquests ordered ex officio by the steward of the fair.  In 1291, Walter Danes of Roxton sought to claim a horse that had been attached in Tempsford v. Chaplain.  The rolls state that “because the claim of the said Walter is regarded with suspicion”—later noting that “he was a person of ill fame and had not chattels of such value, and [it was suspected] that he did this by fraud and collusion”—an inquest was ordered to determine the truth.[172]  The jurors found that Walter’s claim was fraudulent, but Walter replied that he had not put himself on the inquest, which was taken by the steward ex officio, and that he had the right to prove his claim by oath “according to the law merchant.”[173]  The case was put on hold for eleven days, until the “merchants of the various communities” could be assembled; the court then ruled that since the inquest was taken merely ex officio, and since his claim to have bought the horse was valid “according to the law merchant,” Walter would be allowed to come “three-handed [i.e., with two compurgators] with good and elected and credible men” to prove that the horse was his.[174]

This case would seem to establish, as a principle of the law merchant, that the steward of the fair was unable to carry out binding inquests ex officio.  Yet the records contain another example of an ex officio inquest that very closely resembles that of Tempford v. Chaplain.  In Stanwick v. Wylye (1295), a black horse had been seized as security in the case, and a monk of Lavendon appeared claiming that the horse belonged to the monastery.  The court awarded that the monk “should prove that the horse was his,” i.e., by oath.  However, without waiting for the wager of law to take place, the steward took an ex officio inquest “for greater security,” and the jurors replied that the horse did indeed belong to the abbot.  “Wherefore,” the record continues, “it is awarded that the said monk recover the said horse”—the inquest alone was taken as proof, and there is no evidence that an oath was ever sworn.[175]  There would have been little point in taking an inquest “for greater security” if a negative result would have been ignored; as a result, this case seems to indicate that a steward could order a binding inquest ex officio, and that the principle of the law merchant enunciated four years earlier was not of universal application.[176]

Additionally, there are cases in the St. Ives court rolls that seem to incorporate new principles as part of the law merchant.  In 1311, two servants of the abbot of Burton-on-Trent intervened in the case of Fulham v. Francis to claim for their master a horse that had been attached for the debt.[177]  The plaintiff argues that they should not be allowed to prove their case through oaths, citing a general principle that “when anyone should make proof of the ownership of any merchandise . . . it is necessary that he whose ownership is alleged should appear in his own person to make [proof].”[178]  The servants reply that whenever a merchant delivers his goods to a servant to have them put on sale, it would be “hard and inconsonant with right if such servants . . . should not be admitted to make such proof in the name of their lord.”[179]  The emphasis is placed on issues of equity rather than substantive law—to deny the servants their opportunity to make proof would be “hard and inconsonant with right,” not contrary to accepted legal principles.  To resolve the case, the court convenes “all the merchants of the said fair, both natives and foreigners,” who declare that the servants “may properly be admitted in this and similar cases according to the law merchant,” language that indicates a rule to be used in the future rather than one of long standing in the past.[180]  Indeed, when the servants succeed in making their oath, they are allowed to keep the horse “according to the law merchant hitherto approved”—a phrase giving the strong impression that something new has been introduced.[181]

A similar impression is given by the plea of Christine of Darlington against Adam Burser of Bury St. Edmunds in 1302.  Darlington claimed that “on Wednesday last in this present year” Burser accused her of theft and “assaulted her with vile words, calling her harlot, knave, and other enormities,” causing her to lose credit for six quarters of wheat.  Burser denied wrongdoing and asked for judgment against Christine “and against her count”; she had specified the day of the assault as being in “this present year,” when she ought to have specified “the twenty-ninth or thirtieth year of the reign of King Edward, as is the custom in every court,” and he asked for a verdict from the merchants.[182]  Darlington responded that her plea was sufficiently precise “according to the law merchant,” since anyone can figure out the year “when the heading of the [court roll] specifies the thirtieth year of the reign of King Edward.”[183]  However, she did not contest Burser’s claim that including the year of King Edward “is the custom in every court,” merchant courts presumably included; instead, she seems to have contended that doing so is unnecessary, and it therefore could not have been required by “the law merchant.”  Eventually, the case was settled out of court, and Burser paid a fine of 6d.—less than a thousandth of the £40 in damages Darlington had originally claimed.[184]  Given that Darlington was willing to settle and that Burser was willing to ask the assembled merchants for a verdict, it seems likely that Burser had the law on his side, and that “the law merchant” could be used as an expression for commonsense principles of equity.

Given that contradictory principles could be applied “according to the law merchant,” is it still reasonable to use the phrase “the law merchant” to describe a coherent legal order?  The translation of this phrase as indicating a single law is highly problematic.  In the case of Gerard of Cologne, the court did not demand more compurgators secundum legem mercatoriam, but “secundum legem mercatorum.”[185]  Gross translates this phrase as “according to law merchant,” but the text provides no justification for dropping the article—a better translation would be “according to the law of merchants.”[186]  Indeed, some authors have called into question the translation of secundum legem mercatoriam as referencing “the” law merchant, which indicates the presence of a single entity.  The phrase secundum legem mercatoriam might be rendered “according to law merchant,” “according to merchant law,” or the more comprehensible “according to mercantile law,” a phrase which carries no connotations of legal uniqueness or universal applicability.  This translation is urged by Basile et al., who maintain that “the law merchant” has received a distorted interpretation in the secondary literature.[187]  Indeed, Rogers goes so far as to argue that the “sense of mystery and jurisprudential complexity” that the phrase “Law Merchant” evokes is attributable to “nothing more than [its] odd grammatical construction.”[188]

If a number of terms could be used to render secundum legem mercatoriam into modern English, even more are used at St. Ives to express equivalent ideas in Latin.  In 1312, a question arose at St. Ives over whether a shipment of licorice should be forfeited to the king “according to merchant law and custom etc. [secundum legem et consuetudinem mercatoriam etc.]”; the formulation is very similar to that of secundum legem mercatoriam, and the two seem to be used interchangeably in this case.[189]  Similarly, in Legge v. Mildenhall (1291), the plaintiff makes a claim “according to the usage of merchants [secundum usum mercatoriam],” and the defendant admits that the claim is correct “according to the law merchant [secundum legem mercatoriam]”—no distinction seems to be made between “law,” “custom” and “usage.”[190]  The “custom of the fair”[191] as well as the “law and custom of the fair”[192] each describe principles applicable at St. Ives, and the phrases are used as if they were entirely synonymous.  Their use implies that the practice of mercantile law in the fair of St. Ives was more flexible than the translation of “the law merchant,” with its reifying definite article, would imply.  The other phrases support an interpretation of secundum legem mercatoriam as appealing to a loose concept of custom and fairness rather than a specific, well-defined body of law.

The few extant records from merchant courts outside St. Ives support this interpretation of the term.  For instance, the fair court of West Malling in Dyer v. Stonehill (1334) ordered a defendant attached by twenty-nine pieces of wool “according to the law of the fair [secundum legem ferie].”[193]  Similarly, in one very late reference in the Tolsey court of Bristol, in Warre v. David (1518), a plea was heard “according to the law merchant and the usage and custom of that town used and approved from time immemorial.”[194]

The use of customary terms to describe an entity resembling the “law merchant” is not restricted to the records of merchant courts.  Already in 1215, Magna Carta had recognized the “ancient and lawful customs” of merchants.[195]  Several charters issued by Edward I confirming the customs of merchants and fairs referred to lex mercatoria.[196]  Yet royal charters could also invent different terms for what seems to be the same source of justice.  According to a 1280 charter, the wardens of the fairs of St. Edward of Westminster are to “show full justice . . . according to the custom of the fair of Winchester.”  A 1306 settlement between the city of Norwich and the prior of Holy Trinity specified that the townsmen would be under the jurisdiction of the fair court of Norwich “when any matter belonging to the law of fairs [jus feriarum] requires.”[197]  Royal courts could do the same:  a case in King’s Bench endorsed a practice as being used “in law merchant [in lege mercatoria]” as well as justified “according to maritime law [secundum legem marinam].”[198]  Another case in the county court of Southhampton describes a delivery of goods as having been conducted “according to the customs of merchants [secundum consuetudinem mercatorum].”[199]

The variability in the principles established “according to the law merchant” as well as the terms used to express the concept demonstrate the somewhat haphazard nature of the justice administered at St. Ives.  The court sought above all to provide its community with “justice and equity,”[200] taking judicial notice of existing merchant customs (and occasionally creating new ones) to ensure an equitable result.  According to the evidence that can be gathered from the rolls, the St. Ives court did not invoke the law merchant as a well-defined set of principles, but rather as a complex, vague, and ever-changing body of “merchant law and custom.”[201]

B. Mercantile Law Beyond St. Ives

It is far beyond the scope of this study to compare systematically the commercial regulations of jurisdictions across Europe—or even across England—during this period.  However, it is possible to find some direct evidence of such variations in the theory and practice of mercantile law within England; such evidence is available in contemporary treatises, royal court records, and borough custumals.  Additionally, indirect evidence of variations can be found in the structure and activities of mercantile courts such as St. Ives, which acted independently of their sister courts and sometimes even at cross purposes with them.  Although some similarities may have existed in the regulation of commerce, there is nothing in this evidence to indicate that a single law merchant prevailed across Europe and across the many centuries of the Middle Ages.

            1. Direct Evidence for Variation

                       a. Lex Mercatoria

If there were a single, universal law merchant, what did it say?  The enticingly entitled treatise Lex Mercatoria, believed to have been composed by a London lawyer in the late thirteenth century (perhaps the 1280s), purports to describe the contemporary state of commercial law in England.[202]  Indeed, Ellen Wedemeyer Moore, whose treatise on the medieval English fairs otherwise shows a profound familiarity with the fair court rolls of St. Ives, uses Lex Mercatoria to fill in the gaps the fair rolls leave regarding St. Ives court procedure, concluding that “all of the principles [Lex Mercatoria] describes accord perfectly with the practice of merchant law as revealed in the St. Ives fair court records of 1270-1324.”[203]  Holdsworth goes even further in discussing Lex Mercatoria and the St. Ives records, saying that “it is clear from these authorities that these piepowder courts were of the same general type as the fair courts of the Continent.”[204]