Introduction

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Centre for Metropolitan History

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Author

A.H. Thomas (editor)

Year published

1932

Pages

7-51

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'Introduction', Calendar of the plea and memoranda rolls of the city of London: volume 3: 1381-1412 (1932), pp. VII-LI. URL: http://british-history.ac.uk/report.aspx?compid=36695 Date accessed: 25 April 2014. Add to my bookshelf


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INTRODUCTION

The present volume, unlike its predecessors, is described as a calendar of select pleas and memoranda, because a somewhat larger number of formal entries and records of small debt actions have been omitted. Care has been taken, however, to include all passages which seem to add in any way to our knowledge of the times, and especially those which may throw light on the civic disturbances regarded by historians as a struggle between the victualling and nonvictualling guilds. In this connection, attention may be drawn to an interesting correspondence with John of Gaunt, who interceded on behalf of John Norhampton, the banished exmayor (fn. 1) . Certain English enrolments, including two letters of Sir John Hawkwood, the famous leader of the White Company, are also worthy of note, and are reproduced verbatim (fn. 2) . For the rest, among other matters illustrating London life, the editor has set out fully the numerous inventories of household goods, plate, jewels and textile fabrics, which give information on domestic conditions and the trade and manufactures of the period.

THE LAW MERCHANT

On reference to the subject-index, it will be noticed that in many of the actions which came up for trial the proceedings are said to be according to the law merchant. There are similar mentions of this law, though not so numerous, in earlier calendars. But on a comparison of such actions with others of a commercial nature, not so described, it is obvious that the causes of action, the manner in which they were pleaded, the proofs which were accepted and the remedies provided were the same. This is especially the case in the early Mayor's Court rolls, 1298-1307, in which the law merchant is only twice mentioned (fn. 3) . Many of the actions there came on appeal from the Sheriffs' curia de forinsecis; others were initiated on bills and verbal complaints put in by merchants. Though there is no direct reference to the law merchant, there can be no doubt that these are law merchant actions and that the authorities were dealing with commercial causes in the manner prescribed by the king in 1285 (fn. 4) , when he took the city into his hand. In such matters the "custom of the city" and the "law merchant" appear to be almost convertible terms; and no real distinction can be drawn between them (fn. 5) .

Law merchant records in England

Hitherto, owing to the lack of printed records, it has been difficult to estimate how far the mercantile rules of the Italian cities and the great continental fairs were adopted in England. Pollock and Maitland were inclined to think that the English law merchant consisted mainly of rules of evidence, proof of sales and other contracts and the legal value of the tally and the God's penny, and that if it were possible to recover them, we might find some which had their origin on the coasts of the Mediterranean (fn. 6) . Miss Bateson was struck by the fact that merchant law was merely a subsection, chiefly concerned with procedure, in the borough custumals, which had little to tell us of "the rules of hosting and brokerage, the beginnings of the negotiable instrument or the responsibilities of partnership, the delivery of goods, owner's risk, negligence, covenant and account (fn. 7) ." But as the custumals, whatever their date, are mainly compilations of ancient customs of the 12th and early 13th centuries, before there was any large commercial intercourse with the continent, their silence is not unnatural (fn. 8) . Unfortunately the only English treatise on the subject in the Middle Ages is also of comparatively early date. The section on the Lex Mercatoria in the Little Red Book of Bristol (fn. 9) , written probably soon after 1280 (fn. 10) , has much to say about procedure, but can only point out three particulars in which the law merchant differed from the common law—its curtailment of delays, the responsibility of a defendant's pledges, and the onus laid upon a plaintiff to prove his claim. Little further help was afforded by the publication of the records of the court of St Ives Fair. The disputes concerned petty amounts and the primitive rules for solving difficulties cannot be said to have affected the development of commercial law (fn. 11) .

In recent years, however, more material has become available. The select cases extracted by Dr Hubert Hall from the records of central courts and his later studies of statutory recognisances reveal that the law merchant was dealing with intricate commercial disputes, for which the common law could give no remedy (fn. 12) . Similar evidence is afforded by our London rolls. It may be seen from actions in which considerable amounts of money were at stake that the London courts in the later 14th century were doing justice between great merchants and financiers, as well as between small traders. They show further that Englishmen travelled widely and were in constant business relations with foreign merchants both at home and abroad. Such traffic could only be carried on if there were some common agreement as to rights and duties. And although it has been said that any great absorption of the Italian law merchant in England is unlikely before the 16th century, it would appear that the many travelling English merchants could hardly remain ignorant of the legal rules observed in foreign fairs and centres of commerce. To what extent this traffic in ideas was reflected in the practice of English local courts is a question which can only be answered as the archives of important English towns are brought to light and more thoroughly examined.

Nature of the law merchant

Whatever be the exact nature of the English law merchant, it was regarded some time before the end of the 13th century as a distinct body of rules apart from the common law (fn. 13) , applicable to the affairs of merchants and commonly used in fairs and merchant-towns. On occasion these rules could be followed in the king's central courts and both there and in the local courts it was recognised as international in its scope. In 1291 the barons of the Exchequer were ordered to hear an action of account between Gettus Honesti of Lucca and Peregrin son of Gerardin of Chartres, in which a sum of 50,000 marks was involved (fn. 14) . The defendant pleaded that in the transaction under review he was not a factor of the plaintiff but a partner of the society of which both were members. This was a plea, says the record, of which the truth could not be investigated by the common law. Later, when books of accounts were produced, the barons confessed that they did not understand their idiom and that the laws and customs used between merchants were unknown to them. A jury drawn from the greater societies of merchants in London was twice called upon to give verdicts on facts, after which the matter was submitted to two successive boards of auditors who struggled with a complicated mass of accounts before retiring in favour of arbitrators, by whom, after prolonged and difficult labour, a final award was given. The majority of the merchants who helped to solve the problem, as jurors, auditors or arbitrators, were Italians, but German and French merchants and at least one Englishman took part. Doubtless the barons of the Exchequer had learnt something of the law merchant before the case ended.

This was not an isolated case. The king's justices were ordered in 1313 to deal, according to the law merchant, with piracy claims by Flemings (fn. 15) , in 1320 with a dispute between England and Flanders as to spoil (fn. 16) , and in 1321 the itinerant justices in London were directed to try an action by the law and custom of the realm or by the law merchant (fn. 17) .

In all the above cases it seems to have been assumed that the law merchant was understood by, and essentially the same for, merchants of every country. The same assumption underlies the correspondence between important towns, which freely called upon each other to supply information under seal upon mercantile matters (fn. 18) , to entertain the actions of their merchants (fn. 19) , and to enforce the judgments of their courts (fn. 20) . Such judgments by the law merchant were recognised everywhere as valid, and it was a good defence in an English court to plead that the plaintiff had already obtained recovery in a merchant court abroad (fn. 21) . A marked feature of the correspondence was a plea for such reasonable and fair treatment as the authorities would wish their own merchants to receive elsewhere.

Law merchant as jus gentium

It was doubtless this insistence on a common sense of fairness, together with the international character of the law merchant and the fact that the legal ideas of many nations were brought into contribution, which led to its definition as a jus gentium or lex naturae. In the 15th-century custumals of Rye, Winchelsea and Fordwich, the judges were instructed "to have recourse to the laws of nature, on which are founded and whence proceed all written laws (fn. 22) ." A similar definition was given by the Chancellor before the King's Council in the Star Chamber in 1473. In his view a plea by foreign merchants as to the breaking of bulk by a carrier should not be tried by statute, but by the law of nature, "which is called by some the law merchant and which is law universal throughout the world," and he infers that such law is proper to the chancery (fn. 23) . As will be noticed later, alike in its procedure and its ideas, the law merchant had close resemblances to equity.

Early mercantile courts in London

London, owing to its situation and natural advantages, was early marked out to be a great commercial centre and a resort for foreign merchants. In the laws of Ethelred II are regulations for traders from Flanders, Ponthieu, Normandy, France and the towns of Rouen, Huy, Liége and Nivelles (fn. 24) , and about a hundred and thirty years later rules were put on record concerning the Lorrainers, the men of the Emperor, the Danes and the Norse (fn. 25) . That there was trade with Italy in the 12th century may be inferred from the settlement of Italian families in the city (fn. 26) . The itinerant justices in 1220 were informed that passing merchants called "pepoudrous" could already sue for debt and torts in the Husting, but that the mayor and sheriffs were willing, with the assistance of two or three aldermen, to do speedy justice to them day by day outside the Husting (fn. 27) .

The Sheriffs' Court for foreigners

Apparently the mayor and sheriffs acted separately. The sheriffs already exercised jurisdiction over citizens in an ancient court, which now took cognisance of foreign pleas (fn. 28) . So numerous were the latter, that about 1230 complaint was made that the pleas of citizens were being delayed (fn. 29) . Fifty years later it was the only court of this nature known to the Bristol author of the Lex Mercatoria, from which it may be inferred that it was far more frequented than the Mayor's Court (fn. 30) . However, the jurisdiction of both courts was recognised by the constitutions issued by Edward I, when he took the city into his hand and appointed a warden. In order that foreign merchants should not be delayed by long drawn out pleas, the warden and sheriffs were enjoined to hold pleas day by day for foreigners, appointing someone in their places if they were unable to attend (fn. 31) . Unfortunately only one roll of the Sheriffs' Court survives, namely that of the year 1320-21, when the popularity of the court seems to have been on the wane. However, in the period 1300-1307, some sixteen actions terminated in the Sheriffs' Court were taken on appeal to the Mayor's Court (fn. 32) on the ground of partiality, or of error in the record and process or the giving of judgment; and in thirteen of these appeals a copy of the record in the former court is preserved in the file. They concern debt, detinue of pledges after repayment, covenant, trespass, account, partnership, guarantee and contract of affreightment, and were obviously pleaded by the law merchant.

The Sheriffs' Court appears to have preserved a concurrent jurisdiction with the Mayor's Court in law merchant cases until the latter part of the 14th century (fn. 33) . Possibly the Statute of the Staple, which drew a distinction between the law merchant and the customs of cities and boroughs (fn. 34) , may have resulted in a loss of litigants. Whereas in 1344 the court was ordered by writ to do justice between a citizen and a Hanse merchant (fn. 35) , in 1355 the Sheriff was called to account for the arrest of a debtor in a mercantile action, the debtor having already been admitted to bail in another action before the Staple Court of Westminster (fn. 36) . In the present calendar are recorded several mercantile actions begun in the Sheriffs' Court, which were called into the Mayor's Court before judgment had been rendered. The ordinary reason for this course lay in the custom that where a satisfactory trial was unlikely because of maintenance, intimidation, delay of justice and the like (fn. 37) , the Mayor could take the action before himself, on request of either party. But in 1383 the reasons given were favouritism and the fact that the action concerned the law merchant (fn. 38) . In 1390 an action was removed from the Sheriffs' Court on the application of the parties because "the plaint touches the law merchant and such an action touching the said law and especially between foreigners is not wont to be terminated before the Sheriff but according to the custom of the city it ought to be finished and terminated in the Chamber (i.e. the Inner Chamber of the Guildhall) before the Mayor and Aldermen having knowledge of the law merchant (fn. 39) ." The same reason was given in 1398 in an action of debt on account made (fn. 40) and in several subsequent actions. Nevertheless the Sheriffs' "foreign courts" continued to be held, and actions between foreign merchants were terminated there (fn. 41) . Possibly these were simple, straightforward actions in which the parties were content to abide by the common law, and as the foreign courts would be held from day to day, the procedure was as expeditious as that of the Mayor's Court.

The Mayor's Court

As we have seen, both in 1220 and 1285 (fn. 42) the mayor was charged with the duty of giving justice day by day to foreign merchants, and there is little doubt this jurisdiction was one of the causes which led to the formation of the Mayor's Court. In accordance with the city's charters (fn. 43) , the Husting Court could only be held on Monday and by adjournment on Tuesday (fn. 44) , and consequently any meeting for judicial purposes on other days must be regarded as a separate court. Meanwhile other business was transferred from the overburdened Husting. In 1263, when no Husting was held, we find the Mayor and Aldermen dealing with offences against the assizes, i.e., the city ordinances relating to victuals, public order and the regulation of trade (fn. 45) . It is clear also that by 1272 actions between citizens begun by the ancient procedure of bills of complaint had been crowded out of the Husting of Common Pleas (fn. 46) . Thus the Mayor's Court had become a resort both for foreigners and citizens. From an 18th century list of records it appears that there were then extant Mayor's Court rolls of 1277-8 and 1290-1. In other city books there are references to proceedings in 1280 and succeeding years (fn. 47) .

The earliest record, however, of an action between foreign merchants comes from the year 1292, when the warden, Ralph de Sandwich, in obedience to a writ of certiorari, sent a transcript of an action pleaded before him (fn. 48) . A German merchant sued an Englishman, who was not a citizen and therefore ranked as a foreigner, for debt incurred at the Fair of St Ives, alleging that the latter had absconded. The warden entertained the action because the defendant was found in London and because his conduct, possibly owing to his being mistaken for a citizen, had gravely affected the commercial credit of the city. Interesting features of the action are the fact that the warden took counsel with the aldermen on a point of law, in the same way as merchants were consulted in other mercantile courts, and that the defendant was condemned because he was unwilling to submit himself to a jury of merchants frequenting the fair of St Ives.

In the period between 1298-1307, covered by the nine extant Mayor's Court rolls (fn. 49) , there is an abundance of actions concerning foreign merchants, pleaded according to typical law merchant rules. They deal with a wide variety of causes— detinue of unredeemed pledges, proof of tallies, account, agency, covenant, debt, deceit and trespass; and while, as in almost all law merchant cases, they mainly illustrate procedure, they show also what the court considered to be the competence of the law merchant and the remedies allowed by it.

The absence of records between 1307 and 1323, the date of the first Plea and Memoranda roll, is to some extent relieved by the account of the London law courts preserved in Ricart's Kalendar (fn. 50) . This was borrowed, so the compiler tells us, "oute of a boke that was maistir Henry Daarcy sometyme recorder of London in kinge Edward the thirdes daies." Darcy was mayor, not recorder, in 1337-9, and his book almost certainly owed its origin to the inquiries made by the itinerant justices in 1321 (fn. 51) . The Mayor's Court, it appears, was held before the Mayor and Aldermen in the Chamber or the Husting, and this from day to day at their will. They were accustomed there, with other jurisdiction, to hold pleas of debt and other actions personal whatsoever by bill, as well between merchants and merchants by law merchant as between others that would plead by process made against the parties, and it was customary that no error should be sued of judgments given before the Mayor and Aldermen in the Chamber of the Guildhall according to the law merchant.

The Staple Courts

No small number of the merchants whose actions were heard in the Mayor's Court were connected with the staple exports of wool, woolfells, hides and tin, and London from 1326 onwards was one of the English Staple towns (fn. 52) . A change of policy in 1353 relegated the city to the position of a port for Westminster, to which the Staple was transferred, a change which Dr Tout regarded as an intentional blow to London (fn. 53) . The Statute of the Staple laid down that the mayors and constables of the Staple should have jurisdiction and cognisance within their towns of all Staple merchants, their servants and households by the law merchant and not by common law nor by usage of cities, boroughs and other towns, and that this cognisance should extend to contracts and covenants arising both within the Staple and without, saving to a plaintiff the right to sue in other place of the common law if he wished (fn. 54) . Actually its economic effect on London was short-lived. The custom-house was in London. It was only Londoners who could supply the cash and goods for the Westminster Staple (fn. 55) , and the mayoralty of the Staple was usually held by a London citizen (fn. 56) .

In the legal sphere, however, the Statute, with its reference to the custom of boroughs, seems to have led the city clerks to emphasise that the procedure of the Mayor's Court was a true law merchant procedure, and especially in cases where the Staple Court at Westminster was unable to do justice because the defendant had no goods in the Staple, whereby he could be attached to answer. In 1362 an action between Lombards, which involved partnership accounts, was sent under the seal of the Staple to the mayor and recorder for the above reason and because the mayor of the Staple wished to safeguard the liberties of London. It was pleaded by the law merchant, and after an attempt to empanel a jury of the moiety, was finally submitted to the arbitration of four Lombards (fn. 57) . Next year four cases relating to debt, partnership, and the liability of executors were dealt with in the same way (fn. 58) , and other actions were remitted to London in following years (fn. 59) . In one action the mayor of the Staple himself appears as plaintiff. In Blakeney v. Jacob in 1378 the record runs "and because the plaint concerned merchandise the mayor fixed a day for hearing in a private room at Guildhall before himself and the other aldermen, so that the action might be terminated according to the law merchant (fn. 60) ." The competence of the court is stressed in two actions in 1380, where the mayor informed the parties that he was mayor of the Staple of Westminster as well as mayor of London, and that the law merchant was pleadable before him both in the Staple and the Chamber of the Guildhall (fn. 61) . In both cases the litigants exercised the right of deciding whether they would plead by the law merchant or not.

The Inner Chamber

The above reference to a private room bears witness to a separation between the ordinary business of the Mayor's Court, which was held in the Chamber proper, and the mercantile actions, which were heard in the Inner Chamber, where the administrative Court of Aldermen usually met. The reason for this change no doubt lay in the intimate nature of the proceedings, which, beginning with pleading, often developed into an audit and examination of accounts and documents, in which the plaintiff and defendant took part, questions being put to them and to all who could throw light on the transactions under review (fn. 62) . From this time forward the Inner Chamber seems to have taken on the character of a separate court, so separate in fact as not to preclude proceedings elsewhere. In 1407 a complainant obtained an order in the Inner Chamber for specific performance, and that proving ineffective, a month later he entered an ordinary action of detinue on the civic side of the court, where he had judgment for specific performance of the contract, if possible, but otherwise for damages (fn. 63) .

It was in the Inner Chamber again that the important case of Burton v. Derby on non-payment of a bill of exchange was heard in 1436, when the mayor, in answer to a certiorari from the Court of Common Pleas, returned a description of law merchant procedure in the Mayor's Court. He claimed that the city of London from time immemorial had been one of the ancient and notable towns and merchant Staples of the whole realm of England, and that according to the custom of the city and the law merchant the Mayor and Aldermen had the power of hearing and considering causes of visiting and resident merchants as to all manner of loans, barretries, exchanges, letters of payment and other mercantile matters and contracts entered into at fairs and market-towns outside the realm of England. Such actions could be tried by juries of merchants passing between foreign places where such actions arose and the city, or if this form of trial were not adopted, then by the examinations and confessions of the parties, witnesses, letters, instruments or other suitable kinds of proof, according to the law merchant and the custom of the city. The court gave remedies agreeable to good faith and consonant with reason (fn. 64) .

Law merchant and equity

In this reference to equity lies the difficulty of deducing principles. There would be the same difficulty in attempting to systematise the considerations which may have moved the Chancellor in the 15th century when he was called upon to deal with grievances for which the common law afforded no alleviation. The city authorities acted according to their sense of fairness (fn. 65) , guided by the common conscience of men of business. We may say that the law merchant recognised commercial rights and duties of which the common law took no cognisance, that its aim was to do substantial justice, and that its procedure was designed to meet the needs of busy men. The principles of the law merchant are to be found in the customs of commercial intercourse, to which the courts gave sanction from time to time.

Competence of law merchant

The competence of merchant courts was wide. All pleas except those of land, says the treatise in the Little Red Book, naturally belong to those laws (fn. 66) . Felony of course must be excepted. In addition to the common actions of debt and contract, the London records show that detinue, apprenticeship, the liabilities of executors, deceit, and miscellaneous torts were entertained (fn. 67) . The same is true of the Fair Court of St Ives, which, in many of its actions, appears to be rather a court for merchants than a special law merchant tribunal. In course of time the tendency was to restrict the law merchant to cases of exceptional difficulty, and to leave those actions which could be sued at common law to the king's courts or to the ordinary local courts (fn. 68) .

There was no limitation as to amount. The custumal of Torksey claimed that in its piepowder court, covenants, contracts, trespasses and debts both above and below the sum of forty shillings could be tried (fn. 69) . To judge from an action which was taken on appeal from the Fair Court of Stamford to the Court of Common Pleas, in which the defendant pleaded that the court could not adjudicate in a claim of over twenty shillings without the king's writ, this custom was not disputed by the justices (fn. 70) . The Mayor's Court, both on its civic and its mercantile side, dealt with claims of any amount, and this privilege, though now restricted to actions where the whole cause arises within the city, still obtains to-day (fn. 71) .

Origin and venue of actions

In earlier days the Mayor's Court appears to have been stricter than other courts in confining its attention to pleas connected in some way with the city. The Lex Mercatoria declares that where a plaintiff was able to prove his plea by a deed or by a suit of proper witnesses, there was nothing to hinder the court from discussing an action, the origin of which lay outside the market (fn. 72) . It was usually the duty of proof which deterred the city authorities. In dealing with the case of the debtor who absconded from Lynn in 1292, the warden thought it necessary to excuse his action on the ground that the credit of London was involved and the debtor had been run to earth in the city (fn. 73) . In 1300, when a knight who had gone on expedition to Scotland in the retinue of another knight, sued the latter for the loss of three horses, alleging that the agreement made in Norfolk had been confirmed in London, the Sheriffs' Court told the parties to sue at common law, because the contract was a foreign one, the horses were not merchandise, and the court could not call a jury of the venue (fn. 74) . However, in another case of 1305, where a contract of affreightment was made in Bordeaux for carriage of wine to London, the same court admitted the action and allowed the defendant to clear himself by compurgation of a charge of wilful delay, apparently on the ground that the wine had actually been delivered in London (fn. 75) . Again in 1299, when the wardens of the Fair of Champenoise Brie urged the warden of London to compel a number of foreigners to satisfy other foreigners on a contract made at the Fair in 1292, he summoned the defendants and accepted as exoneration an acquittance of 1293 under the seal of the then wardens (fn. 76) . About 1321 rules were set down for guidance in the matter. The Sheriffs' Court (and no doubt the Mayor's Court) was regarded as competent to deal with actions between merchants on contracts made in other mercantile towns, at home or abroad, so long as there was an express condition that the debt should be repaid, or the goods delivered or account made in London (fn. 77) . Returns made in 1390 (fn. 78) and 1436 (fn. 79) suggest that the court was then admitting any actions arising in fairs and market-towns abroad, provided that the parties either resided or continually resorted to the city. In the 16th and 17th centuries the fiction was adopted that the venue of such actions lay in the parish of St Helen's, London, and therefore fell within the cognisance of the court.

Merchants as givers of judgments

In the Mayor's Court merchants do not appear to have co-operated in the work of the court to the same extent as elsewhere. In every court of a market, says the Lex Mercatoria, judgments ought to be rendered by the merchants of the same court and not by the mayor or the steward of the court (fn. 80) . In case of false judgments, the suitors of the court, who included residents of the town or fair and merchants actually present at the time, were liable to penalties, because they, and not the lords of the fairs, were bound to render judgments. This was in accordance with the ancient customs whereby the suitors of a court were the doomsmen, the men who gave judgments. At least as late as the time of Edward I the suitors are acting in this way in the county courts and continued to do so in manorial courts till modern times (fn. 81) . But it must be remembered that judgment was a word of wide applications. There might be several judgments in an action, both as to fact and as to law. Where the suitors in the court of St Ives speak on facts, it would be more proper to call them a jury; in the cases where they give "judgments" on law they appear either to have been deciding on the form of proof admissible or giving information on merchant custom (fn. 82) . Probably it is true to say that though they gave judgments, they were not judges.

There are several traces of the suitors as doomsmen in the city records. In 1230 and again in 1246 it was necessary to prevent advocates and those concerned in actions from joining in the forming of judgments (fn. 83) —a fact which indicates that in the Husting others than the mayor and sheriffs co-operated. Representatives from the wards were summoned to the court (fn. 84) and it was doubtless these suitors, described as "assessors," who sat upon the Four Benches of the Husting in the 12th century, and of the Sheriffs' Court in 1291 (fn. 85) . Nevertheless towards the end of the 13th century the giving of final judgment belonged to the mayor and sheriffs, while the aldermen had taken over the consultative duties of the suitors at large (fn. 86) . In the law merchant prosecution heard by the warden in 1292, the latter took counsel with the aldermen on a point of law (fn. 87) . It was the Mayor's Court with the mayor or warden as judge which dealt with law merchant actions between 1298 and 1307. But soon afterwards the aldermen began to assume the nature of associate judges. It may be that they were called in as merchants and that the court was approximating its procedure to that of other merchant courts. About 1321 the court is said to be held before the Mayor and Aldermen (fn. 88) and the latter are invariably mentioned in the reasons given for judgments. As we have seen, in later law merchant proceedings special emphasis is laid upon the fact that the aldermen were merchants and had knowledge of the law merchant (fn. 89) .

Counsel not admitted

Dr Holdsworth has pointed out in connection with the Italian law merchant that many of the city statutes prohibited the employment of lawyers except in special cases... the lawyers, it was thought, should be employed to settle points of law and not to argue matters of fact and to put a good face on a bad cause (fn. 90) . In this matter the court of London followed the Italian custom rather than the practise of English Fair Courts (fn. 91) . Counsel might be and frequently were employed on the ordinary side of the court and even in the Sheriffs' Courts for foreigners (fn. 92) , but it is quite clear that they were forbidden in law merchant cases. In answer to a writ on behalf of a merchant, who complained that he was not allowed to plead his case by competent counsel, return was made that it was immemorial custom to terminate such pleas by examination on oath and other means of eliciting the truth without any counsel or other form of plea (fn. 93) .

Summons and attachment

The process by which defendants were brought to answer was more favourable to citizens than to foreigners. In case of the former, summons was issued to appear on the next court day, and on default, his house was sequestrated by way of distress with increasing severity until, after four defaults, the goods and chattels of the debtor were appraised and delivered to the creditor, under pledge to answer therefor if the debtor should appear within a year and a day to disprove the debt. Thus on a bill presented on Thursday 14 Jan. 1389, a citizen was summoned to appear on Saturday, sequestrated to appear on Monday, Tuesday and Wednesday, on which latter day judgment would have been given, but for a writ of supersedeatis (fn. 94) . If, however, the plaintiff brought six, four or two freemen to bear witness that the debtor was likely to abscond, he might be arrested by his goods or by his body (fn. 95) . On the other hand, a foreigner was not entitled to a summons, but immediately on a plaint being affirmed by pledges he might be attached by his goods or, if he had none in the city, by his person (fn. 96) . Nevertheless the courtesy of a summons appears to have been extended on occasion to foreigners, doubtless when they were well known as men of substance (fn. 97) . By city custom attachments, both on citizens and foreigners, might be made on debts owed or goods belonging to defendants. In other words, where a third person owed money or goods to a defendant, these might be attached as a foreign attachment (fn. 98) . By an extension of the custom, where a creditor had goods of a debtor as pledges for a loan, he might have formal delivery of these goods (fn. 99) . This latter custom amounted to pawning, the goods being redeemable only within a year and a day.

As will be seen from the instance of sequestration given above, the law merchant court was held daily, and the procedure afforded a speedy remedy to litigants. This was in accordance with the constitutions of 1285, which insisted on "hastif remedie" for travelling merchants—a phrase repeated in the regulations of 1321 and 1364, the latter of which runs: "et le Mair lour fra hastive droiture, de jour en autre, sans nulle delay, solonc la ley marchaunt (fn. 100) ." In the rules of the Italian law merchant, the same stress was laid upon speedy justice, and as Dr Holdsworth has pointed out, the influence of the canon law worked strongly in the same direction (fn. 101) . The Decretal Saepe contingit contains several features common to the Mayor's Court—the repressing of delays, the oath that the proceedings were in good faith (fn. 102) , the examination of parties and the definitive judgment in writing (fn. 103) .

Proof by documents

An action could be begun by ordinary bill with pledges for prosecution, by petition (fn. 104) or even by verbal complaint (fn. 105) . When the question of proof arose, writings, tallies, witnesses, juries and compurgation were admissible in the order given. In actions of covenant and debt, such writings would take the form of recognisances, statutory and civic, obligations or bonds, and in the latter half of the 14th century, if not earlier, bills of exchange or letters of payment. It was probably in reference to the latter that the Mayor and Aldermen in the Inner Chamber in 1439 gave a definite ruling that by the ancient custom of the city a schedule of parchment or paper written by the hand of a debtor or other person whatsoever, and sealed and delivered by the debtor himself, debarred him from making his law, i.e. clearing himself by compurgation (fn. 106) . But it was possible to plead against all such specialties that they were not the deed of the defendant, in which case proof might either take the form of witnesses or a jury. The same pleading was open to a plaintiff, when the defendant produced an acquittance. We learn from an interesting appeal in 1278 that a mere collation of seals was not regarded by the law merchant as sufficient proof of the genuineness of a deed (fn. 107) .

It frequently happened in law merchant actions that a defendant pleaded that his documents were elsewhere or that he could produce authentic letters under the seal of a merchant town to prove that he had already sustained judgment or was quit of the debt claimed (fn. 108) . He was required to take an oath to that effect and to find pledges before being allowed an adjournment. Occasionally the court itself wrote for in formation, not only as to acquittances (fn. 109) but on special matters arising out of the pleadings (fn. 110) .

Tallies

In the city a sealed tally was regarded as having the same validity as a written obligation and debarred a defendant from his law (fn. 111) . He could, however, allege that the date of payment was other than the plaintiff declared or deny that the tally was genuine. The burden of proof was thus thrown upon the plaintiff and it was a principle of the law merchant that he must prove his tally by good and loyal citizens or merchants and not by men of low condition (ribauz) (fn. 112) .

Witnesses

As regards witnesses, the mercantile actions in which they are mentioned show that there was a distinct movement away from earlier formalism towards more modern methods. The Sheriffs' Court in 1302 gave judgment for a creditor even though his witnesses proved a debt less than he claimed and did not agree as to the source of indebtedness, and in spite of the fact that the aldermen who examined them did not put the proceedings on record. The Mayor's Court reversed the judgment (fn. 113) . But they themselves in a civic case, where a defendant put himself on a jury and at the same time offered four witnesses, summoned the jury and added the four witnesses to give them information (fn. 114) , thus giving a striking forecast of modern actions with judge, jury and witnesses. As time went on, the success of a case no longer depended on the exact agreement of witnesses. Mercantile actions, especially where partnership accounts were involved, in which bonds had been drawn and sales made by agents and where debts were assigned in settlement of claims, became so intricate that, though a debt was clearly owed, neither the plaintiff nor defendant might know the extent of it, and no one witness could be conversant with all the circumstances. In the returns made as to law merchant procedure it is clear that witnesses were only part of the means whereby the facts were elicited and that the court, anxious to arrive at an equitable solution, had passed the stage when a victory could be snatched on a legal quibble (fn. 115) or a minute divergence of testimony.

The jury

All through our period the jury was closely akin to a body of witnesses (fn. 116) , and this was especially the case in mercantile actions. In the law merchant the jury was always in a sense a special jury, chosen either as likely to be cognisant of the facts or in a position to discover them. In purely mercantile actions, juries of merchants were impanelled, but if more technical knowledge were required, travellers, masters of ships, sailors and tradesmen might be selected (fn. 117) . Connected with this desire for special knowledge was the institution of "the jury of the moiety." Edward I in 1285 enjoined that where denizen and foreigner were at issue, one half of the jury should be of denizens, the other of foreigners visiting the city, if it were an action of contract or debt of which foreign merchants could have cognisance (fn. 118) . A slightly different procedure is described by the Carta Mercatoria of 1303 (fn. 119) . Half of the jury were to be of merchants of other places and half of other good and lawful men of the place where the plea was heard, and this apparently was to obtain in all actions, whether between denizen and foreigner or foreigner and foreigner. The latter was the custom observed in London (fn. 120) . If it proved impossible to find a moiety of foreigners, a jury of citizens was impanelled (fn. 121) .

Wager of law

The last and least satisfactory form of proof was that of wager of law or compurgation. By the end of the 13th century it was no longer applicable in violent forms of trespass (fn. 122) , though it continued as a proof faute de mieux in the other civil wrongs grouped under that term (fn. 123) . Its principal use was in actions of debt, detinue and contract, where the plaintiff had no writing or tally and could call no witnesses, or where a jury could not be expected to elicit the facts. In law merchant actions it took two forms, the sevenfold oath and the peremptory or decisory single oath.

In the former, the party took an oath that he owed no debt or made no contract and produced six others to swear, not as to the facts, but as to the credibility of his oath. Though the Liber Albus tells us that this form of oath applied to foreigners as well as to citizens (fn. 124) , the only instance in which a foreigner is recorded as clearing himself with the seventh hand occurred in 1300. In the few subsequent actions where foreigners waged their law, the number of compurgators is not mentioned.

The more usual form of wager of law was the peremptory oath, sworn either by plaintiff or defendant. The latter might challenge his opponent to swear that his suit was true, and if the plaintiff refused, the defendant went quit. He could also, with the consent of the plaintiff, take an oath that his defence was true, with the same result (fn. 125) ; or the plaintiff, where a matter was alleged in bar of action, or a dilatory exception was raised, could put the defendant on his oath, winning his action if he refused, or being ousted himself, if the defendant took the oath (fn. 126) . It is possible that some of the instances of compurgation by foreigners, where no number of oath helpers was stated, were in fact peremptory oaths. In all cases where foreigners waged their law, the oaths were taken incontinenti, doubtless in accordance with the necessity for hastif droiture. As may be imagined, compurgation is rarely found in any commercial action of importance. It was more suitable for disputes concerning petty amounts than for claims arising out of the transactions of financiers and merchants.

Arbitration

Arbitration in law merchant actions appears early, especially among foreigners (fn. 127) , and towards the end of our period became the favourite method of settling disputes. It was usual for each of the parties to choose two arbitrators, with an umpire to make the award if the four failed to agree. The advantages were obvious. Foreign arbitrators understood the speech and book-keeping of their fellow-countrymen, and it is interesting to notice that in certain actions, where a plaintiff or a defendant seemed, from the pleadings, to have no case at all, the award went in his favour (fn. 128) . The parties undertook openly in court, or entered into mutual bonds, to accept the award, a day being given for its production (fn. 129) . In either case, if one party refused, the other could sue on the bond or the covenant witnessed by the court (fn. 130) . Sometimes the mayor ordered the enrolment of the award (fn. 131) , and at other times it was enrolled at the request of one of the parties (fn. 132) . There are instances of judgments given in the terms of the award (fn. 133) , and if the award contemplated duties to be performed by the parties, the court would examine the arbitrators and give judgment that the award had been fulfilled and that bonds be returned (fn. 134) . The mayor himself or the recorder might consent to act as umpire (fn. 135) . At other times the mayor appointed arbitrators, in accordance with the law merchant (fn. 136) , and in one instance a jury, which had been elected and tried, chose four arbitrators to examine the matter on their behalf (fn. 137) . In all these cases it is important to notice that arbitration was an integral part of the court proceedings, that awards had the force of formal judgments and were solemnly recited in court.

In another class of actions the court itself acted as a body of referees. Where persons out of court entered into arbitration and deposited mutual bonds in the hands of a third person, the latter allowed himself to be summoned for detinue by one of the parties, pleaded that he had no knowledge whether the award had been fulfilled, and prayed the court to summon the parties to interplead, thus securing official recognition and a final judgment on the matter at issue (fn. 138) . A variant of this action occurred when the bailee of a bond for conditional payment was sued and prayed for interpleader and judgment (fn. 139) .

Liability of master and servant, merchant and factor

It has been suggested above that the principles of the law merchant, as understood in London, must be sought in the mercantile customs revealed in pleadings rather than in the judgments recorded. A frequent cause concerned the liabilities of principals and agents in trading. Much business was done at home and abroad for considerable amounts by apprentices, or by time-expired apprentices variously described as servants, merchants or attorneys of their masters.

The Lex Mercatoria rules that where apprentices and undermerchants, publicly known to be trading for their masters, procured merchandise to be lent to them to the use of their masters, the masters were responsible (fn. 140) . The London rules of 1285 say that the master was responsible if the merchant creditor can prove that the servant or apprentice, who bought goods for him, was with his master at the time and carried the goods to his master's house or brought them into his power; and this rule was made because masters sometimes disavowed their servants while retaining the goods (fn. 141) . Its effect seems to have been to throw the onus of proof upon the creditor. In 1345 a merchant sued a pepperer for money lent to his attorney in Bruges, and the defence was made that the alleged attorney was only a learner and not an attorney, factor or apprentice (fn. 142) . In another action where a principal was sued, he admitted that the apprentice was his agent, but denied that the loan was taken for his use or came into his possession. The parties having agreed to put themselves on the evidence of the apprentice, the latter confessed that he had borrowed the money for his own use (fn. 143) . Such actions as these would bring home to merchants the necessity of safeguarding themselves. Apprentices and servants were often provided with letters of attorney, and creditors before parting with money or goods required bonds for payment. In the latter case they sued the agent. Thus in 1389 an apprentice suffered judgment for debt and then sued his master, who was adjudged to pay the debt for him, because the latter had approved the transaction and the wine had been bought for his use and profit (fn. 144) . However, such actions were rare. To judge from a number of cases, principals appear to have paid the creditors, and to have sued the apprentices or their sureties, where the apprentices' conduct of trading amounted to "wasting his master's goods (fn. 145) ."

The liability of agents to principals naturally depended on the conditions imposed by the latter. According to the Lex Mercatoria an apprentice who lent his master's goods, or in other words gave credit, was responsible only if he did so against the forms and conditions stipulated by his master (fn. 146) . A common custom was to deposit goods or a sum of money in an apprentice's hands to trade therewith for the benefit of his master under definite instructions. In such an arrangement the apprentice was bound to render account after a given interval, and to restore the deposited sum or goods in toto (fn. 147) . Or he might be sent abroad with money or goods to deal according to his discretion for his master's advantage (fn. 148) . In the latter case, his liability would only extend to wrongdoing or reckless conduct. In one case an apprentice's sureties maintained successfully that the master had no claim because the boy was too young to be allowed to trade (fn. 149) .

The commenda

Arrangements of this kind shade imperceptibly into those contracts known to the Italian law merchant as commenda (fn. 150) , where the travelling merchant was rewarded with a fixed salary or a proportion of the profits (fn. 151) , and the home-merchant must be prepared to suffer risk as well as receive profit (fn. 152) . As an apprentice received no pay, his trading contract can only be considered a commenda in so far as experience is regarded as an emolument. But the time-expired apprentice or servant was undoubtedly paid either by salary or profits. Where he received instructions, he was liable for losses incurred by breach of them. An undermerchant in 1380 was condemned for 4000 woolfells or their value, £60, because he undertook to account either for the goods or the money, and a bond from the purchaser was not accepted as an equivalent (fn. 153) . In another case, where the undermerchant had sold the goods, he was sued either to repay their value or to obtain from the purchaser satisfactory security, as he had promised. Here the parties chose six Lombard merchants to assist and inform the mayor, and to examine papers and hear evidence with him, in order that he might be able to render a better and juster judgment according to the law merchant (fn. 154) .

The societas

There are many references to partnership in the rolls, both in particular adventures and in general trading. In one instance a merchant is sued to render account for the time when he was the plaintiff's receiver and traded for their common profit (fn. 155) . This appears to be akin to the arrangement known as the collegantia, where the travelling merchant contributed a portion of the capital and shared in risk and profit. The defendant claimed that he merely received a sum of money, to trade therewith to the profit and at the risk of the plaintiff. Full partnership, corresponding to the modern English business partnership, is found in earlier days mainly among Italians and German merchants. But in 1363 unlimited liability, the test of such partnership, is pleaded in an action between English merchants of the Staple (fn. 156) . In several later actions the liability of a societas, or of one member of it, for the transactions of the other members, was recognised and enforced by the Mayor's Court. In 1373 an Englishman, on behalf of his partner, meets a bill of exchange effected with Italian merchants at Bruges, apparently by an English partner (fn. 157) .

Credit and financial instruments

Another class of transactions illustrates the use of credit in medieval London, and the financial instruments by which it was effected. In spite of the assertion that dealing for credit was little developed and dealing in credit was unknown (fn. 158) , all the evidence goes to show that both were far more general than was previously supposed. In London the formal documents witnessing the duty of repaying loans or of making future payments for goods supplied were as follows: (1) Recognisances made before the city chamberlain and one or two aldermen or before the Sheriffs (fn. 159) , in which the debtor acknowledged a debt payable to the creditor or his certain attorney. Sometimes to attorney is added "bearing the writing of this obligation " or "the letter of this debt," or even "a tally of this debt (fn. 160) ." The debtor agreed that in case of nonpayment the debt should be levied from his lands, rents and goods. A large number of these recognisances are recorded between 1274 and 1312 in Letter Books A and B. They were not superseded by the statutory recognisances set up by the Statute of Acton Burnel, for on 13 Dec. 1383 a city ordinance directed that they should continue to be taken before the chamberlain notwithstanding the act (fn. 161) . The city custom was recorded before the itinerant justices in 1321 (fn. 162) and occasional enrolments are found throughout the next two centuries (fn. 163) . (2) The statutory recognisances of the above-mentioned act and of the Statute of Merchants, 13 Edw. I, known as statutes merchant (fn. 164) . Rolls of the latter are preserved among the city records, beginning in 1285 and continuing till 1392.,They were taken before the Mayor and a clerk, and provided for payment to be made to the creditor vel suo certo nuncio scriptum inde obligatorium deferenti, or on default to be levied in accordance with the act. (3) The Statute Staples set up by 27 Edw. III stat. 2 c. 9 (fn. 165) . (4) Obligations or bonds, which, the Liber Albus tells us, might be simple, endorsed or by indentures (fn. 166) . The simple bond was equivalent to a civic recognisance, though there was not the same provision for automatic recovery in case of default. The endorsed bonds or bonds by indentures contemplated payment on certain conditions. We meet also with the penal bond, in which a debtor binds himself to pay a certain sum, usually twice what is owed, if he fails to pay his debt by a certain date (fn. 167) . None of these instruments, it must be noted, contained a pure bearer clause, as was often the case with similar foreign documents (fn. 168) . The bearer clause was very rare in England in the 14th century, if it existed at all. "Payment to an attorney bearing the document" is a mixed clause, as restricted in its operation as an order clause (fn. 169) .

Transfer and negotiation of obligations

All these documents were enforceable both by the common law and the law merchant. To a certain extent they were by their nature transferable. The certain attorney or. messenger might be merely an agent collecting a debt for his principal, but he might also be the purchaser of the writing armed with a power of attorney or a letter of recommendation. In the latter case it has been considered that the consent of the debtor was necessary to the assignment, but this was probably intended not so much to safeguard the interest of the debtor as of the assignee, and was not invariable (fn. 170) . It would appear to have been easy to transfer a debt once, for the appointment of an attorney was a simple matter in the city and did not require a royal writ (fn. 171) . Moreover, in certain letters of attorney, power was given to appoint a further attorney (fn. 172) . But the transferable instrument could hardly become a fully negotiable instrument without a series of such letters depending one upon another.

When we turn, however, from the formal difficulties of transfer to the records of actual occurrences, there is reason to believe that bonds were regarded in law merchant courts as objects of value in themselves, which the holder, whoever he might be, could realise. In a curious action in the Sheriffs' Court for foreigners in 1320 a chaplain was sued by the executors of William Servat for having broken into the testator's boxes, and for having carried away, sold and disposed of two statute merchants of £115, which had been entrusted to the testator under certain conditions, an Exchequer bill of 5 marks from the king to the said William, two sealed indentures of the testator, an obligation of £96 from the Archbishop of Canterbury to Reginald de Brandon, which Richard de Honewik had pledged to the testator for £40, and a bond of 200 marks from Sir Henry de Beaumont to the Earl of Hereford, which the latter had pledged for £110. The defendant pleaded that the testator had given him the two statutes and the Exchequer bill in recompense for services rendered when he was the testator's receiver of customs at Lynn and other places. He produced an acquit tance. A jury found him guilty and the acquittance not the deed of the testator (fn. 173) .

Assignment of debts

The assignment of debts in satisfaction of claims is illustrated by many instances in the city records. While some of these were small book debts, commonly proved, according to the Lex Mercatoria, by the evidence of tradesmen and their servants (fn. 174) , the majority were duly secured by documents, which were handed over for execution (fn. 175) . In the same way tallies passed from hand to hand (fn. 176) . All these arrangements were not only recognised as a matter of course, but might even be ordered by the court, in accordance with the law merchant (fn. 177) . In the 15th century we hear of a "common buyer of debts" and of the sale of bonds (fn. 178) . The common law courts would by then recognise an assignment if it could be proved that the assignor and assignee had a common interest such as the settlement of debts, but a common interest could not be proved if it appeared that the assignee had merely purchased the deed from the assignor without any particular reason for doing so (fn. 179) . But what the common law would not sanction was admitted by the law merchant. If the latter did not make the transferable instrument fully negotiable, it made it as negotiable as was necessary for ordinary business purposes.

Bills of exchange

A distinctive feature of the law merchant in London was its recognition and enforcement of the contracts created by bills of exchange or letters of payment. The transaction covered by these documents may be stated as follows. A, the drawer, a merchant trading in a foreign country, obtains a sum in local currency from B, the creditor, and gives to him a letter addressed to D, his master or partner at home, the drawee, asking him to pay the amount, which either B or C, the bearer of the letter, may present. The business of supplying ready money for a consideration appears to have been in use among Italian and continental merchants before it was taken up by English merchants. But the latter were well acquainted with its advantages, of which they availed themselves from the beginning of the 14th century onwards.

One form of the bill of exchange was that later known as a letter of credit, or to-day as a traveller's cheque. It was a true bill of exchange, with the difference that the drawer, and not the creditor, derived profit. Thus an English rector in 1300, who had stolen £17 and was intending to flee abroad, took it to the house of a member of the Italian company of Pulci, receiving from him a letter of payment addressed to a branch of the company in Paris. The Italian gave evidence that the letter had not been cashed in London or Paris, from which latter place a warning had gone out to other places to withhold payment, but he did not know whether payment had already been made elsewhere (fn. 180) . Five years later an English purchaser of a bill of exchange, which his brother had presented at Anvers (Antwerp) in Brabant, sued the company of Peruzzi, the drawers, for non-payment (fn. 181) . The company acknowledged the facts and agreed to pay on production of the bill and proof that it had not been honoured. As a rule there was little complaint as to non-payment and on more than one occasion Italian societies met claims even when the letters of payment were lost (fn. 182) . The advantages to merchants, pilgrims and travelling clergy are obvious. All the traveller's cheques noted in these Calendars were issued by Italians (fn. 183) . As they were usually banded together in financial and trading companies, with branches in large cities, they were peculiarly fitted for business of this kind. There is no evidence to show that the transactions mentioned above were secured by bonds or obligations or by any other documents than the order to pay.

Ordinary bills of exchange are mentioned in a number of cases in our rolls. In 1345 two German merchants advance money in Bruges to an Englishman, whose letter of payment was not honoured in England on the ground that he had no authority to draw it (fn. 184) . In 1373 an Englishman in partnership with an Italian, Matthew Johan, paid the sum of £100 drawn upon the latter on an exchange made at Bruges with Reyner Domenyk of Florence by William Agland, servant of Roger Morton of York. In this case the drawee had nothing before him but a mere order to pay, and the payee, Peter Mark, agreed to reimburse him, if the letter proved to be false (fn. 185) .

English merchants and credit

The present calendar shows that in the last twenty years of the 14th century Englishmen had begun to take a definite part in issuing money abroad against bills of exchange. In 1381 a time-expired apprentice, John Colshull, sued his former master, Thomas Gisors, for repayment of three several sums of money which he had paid to his master's creditors (fn. 186) . He had effected exchanges at Bruges with William Ancroft, attorney of Adam Fraunceys of London, for a supply of Flemish crowns and had entered into bonds, which he had subsequently discharged from his own monies. His master in defence pleaded that the plaintiff in the course of trading had drawn bills of exchange on him to the amount of £5954 5s 5d, which he had honoured, and the plaintiff had not rendered account. In proof he put in a schedule of these bills, and notes that he did not include an amount of £309 18s 4d because he had lost the letters of payment (fn. 187) . The list is noteworthy as showing that the merchants who supplied the plaintiff with money for trading were no longer exclusively Italians. Of the fifty-four persons named at least fifteen were well-known English merchants, while of the remainder, Flemings and Germans outnumbered the Italians. It is clear that English merchants were taking a far larger share in financial and commercial transactions abroad than is usually credited to them—a fact which is evidenced by many actions in the present calendar (fn. 188) .

Negotiable bills

Of course in bills of exchange, where four or more persons might be involved, their relations to each other might be governed by obligations and authorities. Sometimes powers of attorney might bind the drawer and drawee, the creditor and payee (fn. 189) . But there is no need to suppose that the drawee demanded and received on every occasion confirmatory documents beyond the letters of payment themselves. The Mayor's Court Rolls of the 14th century do not decide for us whether bills of exchange ordered payment only to a named person or his attorney, or were payable to bearer. The example of a bill of exchange of 1472 among the Cely Papers has a bearer clause (fn. 190) and probably such a clause was usual in that century. In any case, bills of exchange passed freely and were the subject of sale. In an action of 1414 Richard Ikelington, who had acquired a bill of exchange after it had gone through other hands, sued for payment and only failed because the original contract was conditional (fn. 191) . It would appear that the drawee sometimes protected himself by demanding that the payee should warrant him against any other claims. On the same membrane a drawee in England, who felt doubts, entered into a bond to meet the letters of payment if it were proved that payment had not already been made at Middelburg. Proof was forthcoming and he paid. In another case, where money was borrowed from the mayor of the Staple of Calais, the drawee, a Florentine merchant in England, who paid a certain John Wandesford the sum of £130 on the letter of payment, required in addition a bond to indemnify him against the creditor or any other claimant (fn. 192) . A further need for caution on the part of drawee might arise from the fact that occasionally the creditor abroad obtained from the drawer a bond as well as a bill of exchange, and recovered on the former (fn. 193) .

Market overt

Among minor matters of mercantile interest are several entries relating to market overt, which show this custom in an intermediate state of development. The person who bought goods in London, which was a perpetual market, secured a title rather to the value of his purchase than to the purchase itself. In 1377 William Bardolf, lord of Wermegeye, sued for the return of four escutcheons of his arms found in the possession of a goldsmith. The latter pleaded that they had been openly exposed for sale in the city and that a certain foreign minstrel had bought them from other foreigners. The plaintiff replied that the foreigners had no title to them. To this the defendant said that he was not bound to answer because he could verify his own purchase. As the plaintiff did not dispute the open purchase, judgment was given for the defendant, because "the aforesaid verification was a complete bar to the plaintiff's action (fn. 194) ." But there is little doubt that Bardolf might have recovered the escutcheons if he had proffered their value. The cases which suggest this are bound up with a question of pledging.

In 1365 Mary Convers, to whom the count of Harecourt had pledged jewels for a loan, herself raised money on them. The person who took the jewels sold them and they came into the hands of a certain Gillemyn de Nerny. The count was allowed to have his jewels on repayment of the loan to the last-named, while Mary Convers, who had wrongfully parted with the jewels, not only had to make up his purchase-price to Nerny but also recompense him for the profit he had expected to make (fn. 195) . In a similar action in 1377 the person who had originally pledged two silver-gilt basins received them back on repayment of the loan, while satisfaction was made in the same way to the purchaser for what he had paid, with an additional amount for his lost profit (fn. 196) . Apparently so long as the purchase took place openly in London, the buyer acquired a title to value. The title to property, and the restriction of the custom to sale in a shop by shopkeepers of articles in which they usually dealt, were developments of the 16th century (fn. 197) .

Among other law merchant rules illustrated by the rolls are those relating to withernam, the God's penny (fn. 198) , and sea carriage of goods. As regards the latter the Mayor's Court exercised an admiralty jurisdiction, which was not seriously challenged until the 16th century (fn. 199) , and dealt with matters of affreightment (fn. 200) , liability in collision (fn. 201) , jettison (fn. 202) , arrest of cargo (fn. 203) and warranty of a ship and tackle (fn. 204) .

The large questions as to the absorption of the law merchant, as understood in England, by the common law, and the effect of the former on later maritime and commercial law, lie outside the scope of this introduction, which is intended only to draw attention to the customs of merchants recognised by the city courts. But the brief summaries of actions in this series of calendars may serve to show that English merchants were far more busily engaged in international commerce than is generally allowed, and that the methods of business and the rules and obligations of contracts observed abroad were well known to them and in constant use in England. And it is possible, as further material becomes available, that long-established native practice will be found to have influenced the development of commercial law as fully as did the continental law merchant.

Footnotes

1 Below, pp. 109-13.
2 Below, pp. 279-81, 308-10, 313.
3 Holdsworth, Law Quarterly Review, CLXII, p. 223. "It was regarded as pre-eminently the court for the settlement of the disputes of foreign merchants, and therefore as a court in which the law merchant was administered; and, in fact, there are more cases on these rolls, which raise important questions of maritime and commercial law than on any of the rolls of fair courts and borough courts already in print." Cf. Ricart's Kalendar (Camd. Soc.), p. 95.
4 Munimenta Gildhallae Londoniensis (Rolls Series), i, p. 295.
5 The Staple Court at Westminster frequently remitted actions to the Mayor's Court, where they were tried "by the custom of the city and the law merchant." Cal. Plea & Mem. Rolls, 1364-1381, pp. 277, 283. See also below, pp. 27, 33, 162, etc.
6 Pollock and Maitland, Hist. Eng. Law, i, p. 467.
7 Mary Bateson, Borough Customs (Seld. Soc.), ii, p. lxxxiv.
8 The Liber Albus of London, compiled in 1419, contains many rules which were obsolete more than a century before.
9 F. B. Bickley, Little Red Book of Bristol, i, p. 58.
10 H. G. Richardson, Eng. Hist. Rev. xxxvii, p. 243, n. 2.
11 C. Gross, Select Cases on the Law Merchant, I (Seld. Soc.); Holdsworth, Hist. Eng. Law, v, p. 113.
12 Hubert Hall, Select Cases on the Law Merchant, II (Seld. Soc.). I have to thank Dr Hall for allowing me to read in proof his further volume.
13 Charter of Henry III to London, 1268, W. de G. Birch, Historical Charters of the City of London, p. 38.
14 Hall, Law Merchant, ii, pp. 53-4.
15 R. G. Marsden, Select Pleas in the Court of Admiralty (Seld. Soc.), i, p. xix; Foedera, ii (i), p. 210.
16 Marsden, op. cit. p. xxii; Rot. Parl, i, pp. 356-9.
17 Richardson, E.H.R. xxxvii, p. 244, n. 1, quoting Assize Roll 546 m. 47 d.
18 Cal. P. & M. Rolls, ii, pp. 166-7; below, pp. 42-3, 82-3, 128, 1402, 165, 314.
19 Cal. P. & M. Rolls, i, pp. 10, 56, 89, 131, 172, 215, etc.
20 R. R. Sharpe, Cal. of Letters, p. 143.
21 Bickley, Little Red Book, i, pp. 80-1; Cal. P. & M. Rolls, ii, p. 136, where John de Stodeye, vintner, who had been arrested as a surety for debt, was discharged because his principal had already been condemned in Bayonne and had paid his debt.
22 Bateson, Borough Customs, ii, p. 59.
23 Hall, Law Merchant, ii, p. lxxxv; Holdsworth, Hist.Eng. Law, v, p. 116.
24 Liebermann, Gesetze der Angelsachsen, i, p. 232.
25 Add. MS. 14, 252, fos. 99 b-100 b; Bateson, E.H.R. xvii, pp. 499502. Höhlbaum suggests c. 1130 for the date of these regulations.
26 W. Page, London, its origin and early development, pp. 236, 239.
27 Munim. Gild. Land. (R.S.), i, p. 67.
28 Cal. of Early Mayor's Court Rolls, pp. xiv-xv.
29 Liber Ordinacionum, fo. 173.
30 Bickley, Little Red Book, i, p. 59, which says that a merchant would find pledges for prosecution, if he were in London, before the Sheriff.
31 Liber Ordinacionum, fos. 197-202 b. The so-called Statuta Civitatis Londoniarum, printed in Statutes of the Realm, i, pp. 102-4, as from a cedula in the Statute Roll, and dated 1285, are in fact a later confirmation and correspond with the text given in Letter Book C, fo. 15 b, among other enrolments of 1294.
32 Cal. of E.M.C. Rolls, pp. 69, 98, 101-2, 110, 117-18, 118, 120, 121, 128-9, 129-30, 131-3, 133-4, 135, 135-6, 140-1, 143, 144-5, 166-7, 168-9, 181-2, 202, 242-3, 243-5, 26l, 262-3.
33 Richardson, E.H.R. xxxvii, p. 244 and n. 3.
34 27 Edw. III, Stat. 2, c. 8.
35 Cal. P. & M. Rolls, i, p. 213. The alderman of the Hanse claimed and was allowed his court.
36 Chancery, Extents on Debts, file 9.
37 Below, pp. 115, 242.
38 Below, pp. 42-3.
39 Liber Dunthorn, fo. 68; Richardson, E.H.R. xxxvii, p. 244 and n. 3.
40 Below, pp. 251-3.
41 Below, pp. 263 (1399), 300 (1409). 303 (1411).
42 Munim. Gild. Lond. (R.S.), ii, p. 67; Liber Ordinacionum, fo. 173.
43 Charter of Henry I. See Page, London, p. 276.
44 Charter of Henry III, 1268. Birch, Historical Charters, p. 40.
45 Liber de Antiquis Legibus (Camd. Soc.), p. 70. Cal. of E.M.C. Rolls, p. xviii.
46 Cal. of E.M.C. Rolls, p. xix.
47 Ibid. p. xx; Cal. of Letter Book B, pp. 10-12, 13-14; Cal. of Letter Book A, pp. 64, 120-1, 213; Munim. Gild. Lond. (R.S.), ii (i), pp. 282-3.
48 Richardson, E.H.R. xxxvii, pp. 242-9; Chancery Miscellanea, bundle 109, file i.
49 Cal. of E.M.C. Rolls.
50 L. Toulmin Smith, Ricart's Kalendar (Camd. Soc.), pp. 20, 95-113.
51 Richardson, E.H.R. xxxvii, p. 243, n. 6.
52 E. Lipson, Econ. Hist. i, pp. 476-9; Cal. Pat. Rolls, 1324-7, p. 269; Ibid. 1327-30, pp. 98-9.
53 T. F. Tout, Beginnings of a Modern Capital (Raleigh Lecture, 1923), p. 19.
54 27 Edw. III, Stat. 2, c. 8; Statutes of the Realm, i, p. 336.
55 Tout, op. cit.
56 E.g. Pye, Cal. P. & M. Rolls, ii, p. 25; Walworth, p. 277; below, p. 72; Hadley, below, p. 312.
57 Gascoigne v. Gysane, Cal. P. & M. Rolls, i, pp. 258-9.
58 Ibid. pp. 261-3.
59 Cal. P. & M. Rolls, ii, pp. 9, 25.
60 Ibid. p. 248.
61 Ibid. pp. 277, 283.
62 Below, pp. 171-2; see also pp. 31-5 for an action necessitating examination of documents.
63 Below, pp. 285-6, 287-8.
64 Liber Dunthorn, fos. 68 b-69 b, and Letter Book K, fo. 163 b, for the writ and return of 3 Nov. 1437. The preliminary proceedings are given in the return to a certiorari of 14 Feb. 1437. The justices remitted the action to the Mayor's Court, where, after examination of the parties and their factors on oath, and other numerous forms of proof, judgment was given on a bill of exchange of £30 with 20s. damages.
65 Below, p. 301, consultum fuit ulterius per curiam per eorum conscienciam quod....
66 Bickley, Little Red Book, i, p. 57.
67 Cal. of P. & M. Rolls, i, p. 263; Cal. of P. & M. Rolls, ii, pp. 75-6; below, pp. 33, 89-90, 140, 163.
68 The Lex Mercatoria says that merchants could forgo the law merchant and sue at common law, which happened more frequently than otherwise. Bickley, op. cit. p. 57.
69 Gross, Law Merchant, i, p. xxxvii.
70 Hall, Law Merchant, ii, p. 42.
71 Corporation Statement, 1893, p. 80.
72 Bickley, op. cit. p. 70.
73 Richardson, op. cit. p. 248.
74 Cal. of E.M.C. Rolls, pp. 69-70.
75 Cal. of E.M.C. Rolls, pp. 168-9.
76 Letter Book C, fo. 44 b. Sharpe mistakenly called the action an inquiry.
77 Munim. Gild. Lond. i, p. 215. 17 Edw. IV, c. 2 limited the jurisdiction of Fair Courts to contracts, deeds and trespasses made and committed within and during the fair.
78 Matuleano v. Conago, below, pp. 171-2.
79 Burton v. Derby, Liber Dunthorn, fos. 68b-9.
80 Bickley, op. cit. i, pp. 70-1; Gross, Law Merchant, i, p. xxv, quotes Year Book, 6 Edw. IV, f. 3 for a decision of the justices that the steward or chief officer of the court was the judge. Cf. ibid. p. xxxv.
81 P. and M., Hist. Eng. Law, i, pp. 548-53, 592-4.
82 Gross, Law Merchant, i, pp. xxxv, 17, 18, 24-30, 33-5, 50, 76, 90.
83 Liber Ordinacionum, fo. 173 b; Iter Roll AA, m. 6.
84 Husting Pleas of Land, Roll 2, m. 5 (A.D. 1274); Common Pleas, Roll 2, m. i.
85 Add. MSS. 14,252, fo. 98; Letter Book A, fo. 96; H. T. Riley, Memorials of London, pp. 27-8.
86 Husting of Common Pleas, Roll 24 Interlocutoria. Cf. Letter Book C, fo. viii; Munim. Gild. Lond. i, p. 403. In 1303 each of the aldermen was called upon to give his judgment on a question of inheritance. They did so on extra-curial days, and final judgment was given by the mayor and sheriffs on the actual court days. Letter Book C, fo. 96.
87 Richardson, op. cit. p. 249. Et loquendum est cum aldermannis et consulendum super huiusmodi verificacione.
88 Ricart's Kalendar, p. 95.
89 Liber Dunthorn, fos. 68, 68 b-69 b.
90 Holdsworth, Hist. Eng. Law, v, p. 83.
91 F. W. Maitland, Select Pleas in Manorial Courts (Seld. Soc.), p. 135. Gross, Law Merchant, i, p. xxxiv.
92 Below, p. 115.
93 Below, pp. 171-2.
94 Plea & Mem. Rolls, A 29, m. 12. See below, pp. 165-6.
95 Munim. Gild. Lond, i, p. 213. See below, p. 187.
96 Below, pp. 113, 250.
97 Plea & Mem. Rolls, A 28, m. 3; A 32, m. i b. Cf. Bickley, Little Red Book, p. 62; Hall, Law Merchant, ii, p. 31.
98 Munim. Gild. Lond. i, pp. 207-9; below p. 10, n. 2. Attachments could also be made on rents, below, pp. 26, 31, 131.
99 Cal. of P. & M. Rolls, ii, p. 231.
100 Letter Book G, fo. 165.
101 Holdsworth, Hist. Eng. Law, v, pp. 81-2, 82, n. 2.
102 Below, pp. 134, 172, 252, 296, 317; Munim. Gild. Lond. i, p. 200.
103 Cal. of E.M.C. Rolls, pp. 183-4.
104 Cal. of P. & M. Rolls, ii, pp. 88, 212; below, p. 176.
105 Below, p. 287.
106 Letter Book K, fo. 177 b.
107 Hall, Law Merchant, ii, p. 21.
108 Munim. Gild. Lond. i, pp. 212-13.
109 See Sharpe, Cal. of Letters; Cal. of P. & M. Rolls, i, under "letters"; ibid, ii, pp. 129, 136.
110 Cal. of E.M.C. Rolls, pp. 132, 142; below, pp. 43, 140-2.
111 Munim. Gild. Lond. i, p. 214. Cf. Hall, Law Merchant, ii, pp. lxxxilxxxv, 40.
112 Munim. Gild. Lond. i, p. 294.
113 Cal. of E.M.C. Rolls, pp. 183-4.
114 Ibid. p. 58. Cf. below, p. 42, where two informers were added to a jury.
115 But two instances of judgment on errors of proceeding, rather than the merits of the case, must be noted. In 1364 a defendant appears to have lost his case because he offered wager of law and then proffered an acquittance, refusing to make his law. Cal. of P. & M. Rolls, ii, pp. 261-2. In 1392, a plaintiff failed because of an omission in his bill, though the co-defendant admitted the truth of the bill. Both were law merchant actions.
116 Cal. of E.M.C. Rolls, pp. xlii-xliii; Maitland, Social England, i, p. 291.
117 Cal. of E.M.C. Rolls, pp. 21, 39, 119, 193, 221.
118 Munim. Gild. Lond, i, p. 292.
119 Ibid, ii (i), pp. 207-8.
120 Cal. of P. & M. Rolls, ii, pp. 52, 272.
121 Ibid. p. 278.
122 Munim. Gild. Lond. i, pp. 294-5.
123 Cal. of E.M.C. Rolls, pp. 73, 98, 147, 235; Cal. of P. & M. Rolls, i, p. 210; Ibid. ii, pp. 56-7, 224, 266-7.
124 Munim. Gild. Lond, i, pp. 294-5. The Liber Albus (Ibid. p. 203) also mentions a threefold oath for foreigners, which Miss Bateson regarded as a mistake, arising from the name of the oath—" Lex Tertia." E.H.R. xvii, p. 490. There is no instance of a foreigner taking an oath with the third hand. But on one occasion a citizen was allowed to put himself voluntarily on a threefold oath. Cal. P. & M. Rolls, ii, p. 42. In the present calendar there are two instances of threefold oaths, pp. 15, 252-3, and another of a fivefold oath, p. 44. They appear to have been merely challenges, which the other party might refuse, whereas, in the peremptory oath, a refusal meant losing the action.
125 Ibid. pp. 217-18.
126 Ibid. p. 521.
127 Cal. of E.M.C. Rolls, pp. 43, 50; Hall, Law Merchant, ii, pp. 53-4.
128 Cal. of P. & M. Rolls, ii, pp. 75-6.
129 Below, pp. 140, 198, 207.
130 Below, p. 192.
131 Below, p. 307.
132 Below, p. 142.
133 Below, pp. 77-8, 162-3.
134 P. & M. Rolls, A 24, m. 4 b.
135 Cal. of P. & M. Rolls, ii, pp. 86, 158.
136 Below, pp. 127, 136, 207.
137 Below, p. 314.
138 Cal. of P. & M. Rolls, ii, p. 278; below, pp. 239, 245-6.
139 Cal. of P. & M. Rolls, ii, pp. 97-8, 110, 281-2; below, pp. 218, 241.
140 Bickley, Little Red Book, i, p. 66.
141 Munim. Gild. Lond. i, p. 286.
142 Cal. of P. & M. Rolls, i, p. 217.
143 Below, p. 177.
144 Below, pp. 162-3.
145 Cal. of P. & M. Rolls, i, p. 268; Ibid. ii, pp. 86-7; below, pp. 127-8, 221-2.
146 Bickley, Little Red Book, i, p. 78.
147 Below, pp. 140-2.
148 Below, pp. 89-90.
149 Cal. of E.M.C. Rolls, p. 158. But see ibid, pp. 237-8, where an apprentice loses money in trade through falling ill, and is condemned to pay. London apprenticeship actions do not support Malynes in saying that "a factor is bound to answer the losse which happeneth by overpassing or exceeding his commission, whereas a servant is not, but may incurre his master's displeasure." Malynes, Lex Mercatoria, 1622, p. iii.
150 Ashley, Econ. Hist, i, pp. 412-14. Holdsworth, Hist. Eng. Law, viii, pp. 195-7.
151 Often one fourth. See below, p. 28. Holdsworth, viii, p. 195.
152 Cal. of E.M.C. Rolls, pp. 104-5. It was the element of risk which distinguished the commenda from usury. See Munim. Gild. Lond. i, p. 400; Holdsworth, viii, p. 104.
153 Cal. of P. & M. Rolls, ii, pp. 276-7.
154 Ibid. pp. 283-4. Both these cases resemble brokerage rather than commenda.
155 Cal. of E.M.C. Rolls, pp. 104-5.
156 Cal. of P. & M. Rolls, i, pp. 262-3. Below, pp. 83, 194-7, 304.
157 Cal. of P. & M. Rolls, ii, p. 127.
158 Cunningham, Growth of English Industry and Commerce, i, p. 362.
159 Munim. Gild. Lond. i, p. 215.
160 Letter Book A, fos. 41, 42 b.
161 Cal. of Letter Book A, p. 79.
162 Munim. Gild. Lond. ii (i), pp. 322-4. Cf. K.B. 27/262. Probably the recognisance mentioned below (p. 293) as being made before an alderman was a recognisance of this kind.
163 Cal. of P. & M. Rolls, i, pp. 106, 121-2, 264; ibid, ii, pp. 117, 251; below, pp. 82, 130, 155, 191, 197, 199, 224, 302.
164 Statutes of the Realm, i, pp. 53, 98.
165 Ibid. p. 337.
166 Munim. Gild. Lond, i, p. 209.
167 But in the city a creditor suing on a penal bond could recover only what was due. Ibid. p. 211.
168 P. & M. Rolls, A 38, m. 3, a rendre e paier au dit monsieur Pierre a son comand ou au portour de ces lettres.
169 The only instance of a pure bearer clause known to the editor among some hundreds of recognisances and bonds occurs in a penal bond. See below, p. 107, aut latori presencium twice repeated. The instance quoted by Dr Holdsworth (Hist. Eng. Law, v, p. 113) from Maitland, Select Pleas in Manorial Courts, p. 152—vel cuicunque de suis scriptum inter ipsos confectum portanti—is a mixed clause and the bearer must prove that he is "de suis." So too in Cal. of Letter Book A, p. 3, the payee must bring letters of the creditor.
170 See M. M. Postan, Private Financial Instruments in Medieval England, in Vierteljahrschrift für Sozial- und Wirtschaftsgeschichte, xxiii (i), pp.48-51.
171 Letters of attorney were common documents and, on presentation, were copied into the records. Letter Book A, fo. 41 b; B, fo. 122 b and many other instances in the rolls.
172 P. & M. Rolls, A 38, m. 3.
173 Sheriffs' Court Roll, m. 26. Cf. Cal. of E.M.C. Rolls, p. 172, where Reginald de Thunderle in 1305 buys two bills of £70 155 11d from William Foundepe, and the latter's messenger fails to deliver them.
174 Bickley, Little Red Book, i, p. 63. P. & M. Rolls, A 36, m. 3, a grant of goods, chattels and debts, debitos tam per scripta obligatoria et evidencia quam sine....
175 Cal. P. & M. Rolls, ii, pp. 75-6, 91, 111-12, 168-9, 211; below, pp. 27, 43, 225, 227, 274-5. In Roll A 39, m. 12 b is a bond in £40, solvendis eisdem Johanni Sadelere, executoribus vel assignatis. See also ibid. A 57, m. 1 b, A 59, m. 6.
176 Cal. of P. & M. Rolls, ii, pp. 89-90.
177 Below, p. 231, P. & M. Rolls, A 56, m. 2 (1427), where two recognisances are handed over to satisfy a debt, the balance to be returned; ibid. A 67, m. 7 b, bond handed over in payment of a debt, the balance to be used in paying another debtor. M. M. Postan, op. cit. p. 47, where instances are cited from Early Chancery Proceedings.
178 M. M. Postan, op. cit. p. 49.
179 Holdsworth, Hist. Eng. Law, v, p. 535.
180 Cal. of E.M.C. Rolls, p. 94. See Holdsworth's comment on these actions, op. cit. viii, pp. 130-1, and remarks on the connection between exchange and banking, ibid. pp. 128-30.
181 Cal. of E.M.C. Rolls, p. 200.
182 Below, pp. 241, 287.
183 Cal. of P. & M. Rolls, ii, pp. 10,77-8, 115, 122; below, pp. 200, 223, 250, 304, 315.
184 Cal. of P. & M. Rolls, i, p. 217.
185 Cal. of P. & M. Rolls, ii, p. 154.
186 Below, pp. 31-5.
187 A 25, m. 22. De qele darrein somme lez lettres de paiementz ne purroms unqore trover mes mostroms par escriptz qe le ditz John ad resceu lez sommes. Unfortunately omitted from the précis below.
188 See below, pp. 125,176, 241, for other instances of English merchants advancing foreign currency against bills.
189 Below, pp. 32, 43, 146.
190 M. M. Postan, op. cit. p. 65.
191 P. & M. Rolls, A 43, m. 7 b.
192 Ibid. A 74, m. 2.
193 Below, p. 125.
194 Cal. of P. & M. Rolls, ii, pp. 255-6.
195 Ibid. pp. 30, 35.
196 Below, pp. 290-1.
197 See Holdsworth, Hist. Eng. Law, v, pp. 105, and n. 4, 110-11.
198 The God's penny was regarded by the Carta Mercatoria (Munim. Gild. Lond, ii (i), p. 266) as clinching a bargain among merchants. Its use in the city was confined to small trading and agreements for leases. In an action below (p. 290), where a usurious bargain by pawning was made with the God's penny, the court held that it gave no sanction and its use in such a transaction was against custom and conscience.
199 Holdsworth, op. cit. i, p. 530.
200 Cal. of E.M.C. Rolls, pp. 123, 168-9, 192-3, 243-4; Cal. of P. & M. Rolls, ii, pp. 120, 138-9, 246; below, pp. 133-4, 194-7, 199-200.
201 Cal. of E.M.C. Rolls, pp. 223-4.
202 Cal. of P. & M. Rolls, ii, p. 118.
203 Cal. of E.M.C. Rolls, p. 221; below, p. 284.
204 Below, p. 234.