ORIGIN AND LAWS—ENGLAND.
In the preceding survey I have intentionally omitted any mention of
_England_. Historians of the ordinary type have thought it beneath
their dignity to refer to anything so common-place as fairs. The real
mainsprings of our commerce seem in fact very generally to have escaped
them. The greatest commercial nation of the world has found no historian
willing to record the true causes of its greatness. The intrigues
of sovereigns, the machinations of ecclesiastics; the trickeries of
statesmen and diplomatists, have alone commanded their attention and
absorbed their limited energies. The Statute-book, the one great
storehouse of our national history, has escaped their observation. I
propose to devote a special chapter to the origin and development of
fairs in England.
It has been claimed that the Anglo-Saxons founded alike fairs and
markets in England. To Alfred the Great the honour is usually assigned.
I have no doubt whatever that the Romans first introduced the practice
of holding markets and fairs in England. I find very distinct traces
of fairs of Roman origin at _Helston_ (Cornwall), at _Barnwell_ (by
Cambridge), at _Newcastle-upon-Tyne_, and at several places along
the line of the Roman wall in Northumberland. But assuming that the
institutions of the country were largely recast during the Anglo-Saxon
period, we may take note of the supposed re-institution of markets and
fairs in the ninth century. The tithings held their sittings in their
tithing or free-borough once a week, and many people coming thither to
have their matters adjudicated upon, brought also their garden produce,
corn, beasts, and _id genus omne_, for sale: because there they could
meet one another, and buy and sell as their needs required, hence the
commencement of a market weekly. From the Courts just mentioned there
lay an appeal, if either plaintiff or defendant were not satisfied, to a
County Court, held about Easter and Michaelmas, and over these a bishop
and ealderman presided. To this superior Court also came numbers who, at
the various intermediate Court-leets were not satisfied. And as large
numbers came together, a greater and better opportunity was afforded for
selling their wares and goods, corn, beasts, stuffs, linens. “_In this we
can trace the origin of fairs_, which were generally held twice a year,
on or about the times mentioned.” This is the dictum of Mr. G. Lambert,
F.S.A., in a paper read before the London and Middlesex Archæological
Society in 1880, the substance of which is published in the “Antiquary,”
ii., pp. 102-3. The fairs here are seen to be purely secular institutions.
It was by the _Normans_ that the fairs of England were moulded into
the shape with which we are most familiar. The Norman kings placed
themselves largely under the influence of the Papal throne; and it was
to the Church, or in the interest of the Church, that nearly all fairs
were granted after the Norman Conquest in the eleventh century. It was
under John, early in the thirteenth century, that the power of the Church
became most pronounced in England, and it is during this reign that most
of the existing charters of fairs date.
Trying to harmonize these somewhat conflicting views, it may be supposed
that some of our fairs at least were established during the Roman
occupation. These were probably largely added to during the Anglo-Saxon
period. The Normans admittedly encouraged fairs in the interest of the
Church. The fairs of the first and second category were mostly fairs
established by prescription, the latter were chiefly established by
charter. But in the course of centuries the identity of origin becomes
lost. Shepheard, in his “Corporations, Fraternities, and Guilds”
(published 1659), says: “It is very usual in these Charters to confirm
the old markets and fairs, and to grant new markets and Fairs. Or to
change the dayes of the old markets or Fairs. And to grant to the
Corporation the Py-powder Court and Incidents and profits of the Fair.”
(P. 69.)
I am disposed to believe that many of the early fairs associated with
religious observances and ceremonies, were in their inception fairs
of prescription only: that is to say, fairs which took their origin
in passing events, without any special authority, and that upon later
occasions charters were obtained. Bailey says that in ancient times
amongst Christians, upon any extraordinary solemnity, particularly the
anniversary dedication of a church, tradesmen used to bring and sell
their wares even in the churchyards, especially upon the festival of
the dedication; as at Westminster, on St. Peter’s Day; at London, on
St. Bartholomew’s; at Durham, on St. Cuthbert’s Day, &c.; but riots
and disturbances often happening, by reason of the numbers assembled
together, privileges were by royal charter granted, for various causes,
to particular places, towns, and places of strength, where magistrates
presided, to keep the people in order. (“Pop. Antiq.,” Brand.)
Blackstone says:—Fairs and markets, with the tolls belonging to them, can
only be set up by virtue of the royal grant, or by long and immemorial
usage and prescription, which presupposes such a grant. The limitation
of these public resorts to such time and such place as may be most
convenient for the neighbourhood forms a part of economics, or domestic
polity, which, considering the kingdom as a large family, and the
sovereign as the master of it, he clearly has a right to dispose and
order as he pleases.
Again, a man may have a right to hold a fair or market, or to keep a
boat for the ferrying of passengers; and this either by royal grant or
by prescription, from which a royal grant may be presumed to have been
at some time conferred. But (unless under an Act of Parliament) no other
title than these will suffice; for no fair, market, or ferry can be
lawfully set up without license from the Crown. On the other hand, a man
may, under such titles, lawfully claim to be lord of a fair or market,
though he be not the owner of the soil on which it is held.
The right to take toll is usually (though not necessarily) a part of the
privilege; and the tolls of a fair or market are due either in respect
of goods sold there (that is, from the seller, not the buyer), or for
stallage or pickage, or the like, in respect of stalls or polls fixed in
the soil.
I have seen it stated that before the granting of a fair it was customary
to issue a writ of _ad quod damnum_, to inquire whether the grant would
be prejudicial to any; but I doubt if the practice was at all general.
If I am entitled to hold a fair or market, and another person sets up a
fair or market so near mine that he does me a prejudice, it is a nuisance
to the freehold which I have in my market or fair. But in order to make
this out to be a nuisance it is necessary (1) That my market or fair
be the elder, otherwise the nuisance lies at my own door. (2) That the
market be erected within the third part of twenty miles from mine. Sir
M. Hale construes the _dieta_ or reasonable day’s journey mentioned by
Bracton, to be twenty miles; as, indeed, it is usually understood, not
only in our own law, but also in the civil law, from which we probably
borrowed it. So that if the new fair or market be not within seven miles
of the old one, it is no nuisance; for it is held reasonable that every
man should have a market within one-third of a day’s journey from his
own home; that the day being divided into three parts, he may spend one
part in going, another in returning, and the third in transacting his
necessary business there. If such market or fair be on the same day with
mine, it is _primâ facie_ a nuisance to mine, and there needs no proof of
it, but the law will intend it to be so; but if any other day it _may_ be
a nuisance; but of this there must be proof.
The statute of Gloucester (1278) conferred the right of inquiring into
the title of all who claimed rights usually exercised by the Crown. Where
such rights were questioned, the judicial process of _quo warranto_ was
set in motion. One of the principal matters about which inquisition was
frequently made under this statute was the right of holding markets and
fairs. This right could (as we have seen) only be conferred by royal
grant, where prescription could not be pleaded. In many cases it had
been assumed by those who had bought land on which fairs had usually
been held, and who were then taking tolls from merchants which should in
justice have gone to the King. Much curious information was obtained by
means of the inquisitions conducted under this Act. This was originally
recorded in the _Hundred Rolls_, and it is made free use of in this work.
It has been asserted that it is not in the King’s power to resume a
franchise that has been once granted: so that a fair once authorized by
royal grant, is, by the common law of England, good against the King. I
have found no case wherein this principle is declared; but there is an
instance which points in a contrary direction: for in 1446-7 (25 Hen.
VI.) it was enacted “that all grants of franchises, markets, fairs,
and other liberties to buy or to sell within the towns of North Wales
made to any Welshman before this time, shall be void and of no effect.”
Here it was parliament, not the King, revoking the grants. For further
legislation regarding Welsh Fairs, see Chapter V., anno 1534.
Brady (in his famous work on “Boroughs”) seemed to be of opinion that
every free borough had the privilege of a market and fair, with free
right to come and go thereto and therefrom, as of course (p. 33, ed.
1777). But I discover no such inherent right, and where this privilege
is sustained it has usually been included in one of its early charters.
Certainly the converse is not the case: that is to say, it was in no way
customary that fairs should be limited to boroughs free or otherwise.
Many were, indeed, granted to small towns, frequently to lords of manors,
and commonly to religious houses; and in various cases to individuals.
In the next chapter I shall examine more in detail the regulations upon
our statute rolls regarding fairs.
[Illustration]