<<

. 2
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Liebermann suggests that the text was originally from c. 991±c. 1002. Henry T.
Riley discusses the text in detail in Munimenta Gildhallae Londoniensis: liber
albus, liber custumarum et liber Horn, Rolls series, 3 vols. (London, 1859±62) I,
introduction. An English translation of the text is given in Lipson, The economic
history of England, I, p. 512.
Foreign merchants 27

they were held worthy of all good laws equally with London
merchants. A charter issued by Henry II to the merchants of
Cologne in 1157 may be discussed in this connection. It provides
that the persons and possessions of the merchants, including their
house in London, shall be `in my custody and protection (in
custodia et protectione mea)' and that they shall be protected `as if
they were my men and friends (sicut homines meos et amicos)'. The
charter was con®rmed repeatedly afterwards. Some of these
con®rmation charters state that the safe-conduct is granted
because the recipients are the king's men: `quia homines et ®deles
mei sunt'.14
How are we to understand these charters? Are they the `pre-
cursors' of the letters of denization? Did the merchants of Cologne
purchase these charters because they were foreigners? Had they
been Englishmen, would it have been unnecessary to purchase
such protection? Consider the following passage of a charter
issued in 1215: `[the recipients] shall come and go in all our land
with all their merchandises, buying, selling and transacting well
and in peace freely and quit of all exactions (Quod eant et veniant
per totam terram nostram cum omnibus mercandisis suis emendo et
vendendo et negotiando bene et in pace libere quiete et honori®ce)'.
The charter promises, among other things, the safety of transpor-
tation of goods and persons within the realm. The recipients were
the burgesses of Swansea. Like the merchants of Cologne, the
burgesses of Swansea had to go through the trouble and expenses
of acquiring the charter. Was it because they were Welsh? What
about the burgesses of Cambridge, Colchester, etc.? Did they
purchase similar charters because they were foreigners?15
But what about the passage, `because they are my men (quia
homines et ®deles mei sunt)'? Did the merchants of Cologne become
the king's subjects ± or were they to be so regarded ± because of
these charters? If so, how are we to explain the numerous
con®rmation charters, which would mean that they were `repeat-
edly' naturalised? Had they become the king's subjects and, after a


Hansisches Urkundenbuch, I, 8 (1157), 16 (1175), 22 (1194), 37 (1210), 43 (1213);
14

Calendar of charter rolls, I, 214 (1235). For the expression `quia homines et
®deles mei sunt', see Hansisches Urkundenbuch, I, 8, 16, 22.
Ballard, British borough charters, 1042±1216, p. 216 gives many similar examples
15

pertaining to various other cities.
History
28

while, lapsed again into the status of aliens? Obviously, the term
®delis poses serious problems of interpretation.16
As I have pointed out already, the same `®delis' was used in
numerous writs and charters during the period to refer to the
king's subject.17 In 1194, however, Richard I granted a safe-
conduct to `dearest friend, kinsman and our ®delis (karissimo amico
et consanguineo et ®deli nostro)', who was William the king of
Scotland.18 Does that mean that the king of Scotland sought, and
the king of England granted, denization by this document? Of
course, it may be argued that the king of Scotland became a vassal
of the king of England as evidenced by the treaty of 1174, and that
this should suf®ce to make him a subject; hence, the expression
`®delis'. This line of argument, however, did not appear until the
sixteenth century.19 May we rely on a sixteenth-century argument
in interpreting a twelfth-century text? May we alternatively rely
on the familiar thesis of `feudal anarchy' and persuade ourselves
that the feudal lordship was all important and that the subject
status, as distinct from the vassal/tenant status, was left in
obscurity and confusion? The use of ®delis in these documents
would then be regarded as a reminder of the supposed imprecision
and incoherence of medieval jurisprudence: although William the
king of Scotland may be rightly called ®delis, referring to the
merchants of Cologne as ®deles would be rather `anarchical' and
`confusing'. One may also note in this connection that in ancient
Rome, safe-conduct was often called `diploma' or `®des'.20 `Fides'
was sometimes used in this way in the Middle Ages. We ®nd, for
example, the following document which was issued in 856: `If
some of you dare not travel to that place, we shall give you the
God's and our lord Charles' ®des.'21 Also, in 1217, a safe-conduct

See, however, Doehaerd, `Feodalite et commerce', p. 215 (`le privilege' [speci®-
‚ ‚ Á
16

cally granted by a charter] `vaut mieux que la coutume dans la societe medievale:
‚‚ ‚ ‚
le privilege est un contrat entre personnes ou groupes identi®es et comporte de
Á ‚
ce chef un pouvoir contraignant autrement ef®cace que la lex').
See above, p. 14.
17

E. L. G. Stones, Anglo-Scottish relations 1174±1328, 2nd edn (Oxford, 1970)
18

pp. 16ff.
See below, p. 170.
19

De Craecker-Dussart, `L'Evolution du sauf-conduit', p. 189.
20

Capitula ad Francos et Aquitanos missa de Carisiaco, M. G. H., LL. Capitu-
21

laria, vol. II, p. 282 (`Et si aliquis . . . de vobis . . . non audeat ambulare ad
illum, nos vobis damus Dei et nostri senioris Karoli ®dem'). Quoted from de
Craecker-Dussart, `L'Evolution du sauf-conduit', p. 189.
Foreign merchants 29

was mentioned in the following terms: `Safe-conduct: know that
Hugo de Lascy shall come [to England] with our peace and
®des.'22
I refrain from discussing the precise meaning of `®delis' in the
present chapter. At this stage, I simply point out the possibility
that the term `®delis' might not have been used in quite the same
way as we would use the term `subject'. Suf®ce it to emphasise the
danger of approaching the institution of safe-conduct with our
habitual frame of mind formed by a sharp division between aliens
and subjects. The interpretative problem posed by the term ®delis
in these documents should not prevent us from seeing the crucially
important point: that is, all merchants ± regardless of their
allegiance or national origin ± had to pay for the king's protection
in one form or another. Further research may well reveal that
some difference in economic terms might have been maintained
between the English and the foreign merchants in pricing the
privileges. But as far as the formal legal reasoning is concerned, all
merchants had speci®cally to acquire the necessary privileges. No
one was freely given unsolicited privileges, whether an Eng-
lishman or a foreigner.


Court of piepowder
The existence of special courts and trial procedures intended to
provide fast and effective legal remedies for merchants is well
documented. Bracton mentions `justitia pepoudrous' and explains
that it is for merchants who ought to have quick legal remedy:
`propter personas qui celerem habere debent justitiam, sicut sunt
mercatores quibus exhibetur justitia pepoudrous'.23 The author of
The mirror of justices also states that `speedy remedy should be
provided from day to day for foreign plaintiffs in fairs and markets
in the court of piepowder according to the law merchant'.24 The
court of piepowder sat all day and cases could be adjourned from


Patent rolls of Henry III, 1216±1225, p. 34 (`De conductu: . . . sciatis quod
22

Hugo de Lascy venit ad ®dem et pacem nostram').
Bracton on the laws and customs of England, trans. Samuel Thorne, 4 vols.
23

(Cambridge, Mass., 1968±77) IV, p. 63 (fo. 334).
Our translation is based on The mirror of justices, 7 Selden Society (1893), p. 9
24

(`de jour en jour se hastast droit destranges pleintifs en feires e marchiez cum pe
poudrous solom lei marchande'). Emphasis supplied.
History
30

hour to hour. Fewer essoins (lawful excuses for not appearing in
court) were allowed in order to expedite the procedures. There
were special provisions regarding default judgment and sale of
attached goods.25
The custumal of Torksey (c. 1238) offers a vivid contrast
between a borough court and a piepowder court. According to the
custumal, the latter is for merchants and wayfaring foreigners (pro
mercatoribus et forencecis transeuntibus). No one who dwells, or has
lands or tenements in Torksey, shall be impleaded or amerced in
the piepowder court except upon voluntary consent to appear in
that court. The piepowder court had distinctive procedures of
inquest where the jury would be empanelled by foreign, as well as
native, merchants of the town: `If the pleadings lead to an inquest,
it will be taken from foreign and native merchants then present in
town.'26
Although the piepowder court was initially developed to meet
the special needs of markets and fairs only, the procedural
arrangement appears to have become more widely available for
foreign merchants later on. Liber albus of London, for example,
has the following passage (c. 1285) which promises a mixed jury
for certain types of cases without any reference to markets or fairs:
If an inquest is joined between a foreigner and a native in cases of
contract, debt or trespass of which foreign merchants can have cognisance,
it will be done by twelve men, of which one half shall be natives and the
other half, foreigners staying in town.27
The procedures of the staple court may also be discussed in this
connection. The aim of the staple court was to offer `speedy trial
. . . from day to day and hour to hour'. If an inquest had to be
taken, it ought to be composed wholly of foreigners when both
parties were foreigners, wholly of denizens when both parties were

For procedural details of the piepowder court, see Select cases concerning the law
25

merchant, 1270±1638, I, introduction.
The Latin text is printed in ibid., pp. xxxvii±xxxviii (`Et si placitat ad
26

inquisicionem, capta erit de mercatoribus forincecorum et intrinsecorum tunc in
villa existencium'). The editor, Charles Gross, suggests that the text was
composed in c. 1238 (p. xxxvii). Mary Bateson thought that the custumal was
compiled after 18 Edward III. Borough customs, vol. I, 18 Selden Society (1904)
p. lii.
Borough customs, I, p. 201 (`Et enqueste jointe denzein et forein, soit fait par xii
27

dount la moitee soit de denzeines et l'autre moitee des foreins demurrantz en
ville, si ceo soit de contract, de dete ou trespas, dount marchauntz foreyns
puissent aver conusaunce').
Foreign merchants 31

denizens, and half of foreigners and half of denizens when one
party was foreign and the other was not.28 The staple court,
therefore, had a closer af®nity with the piepowder court than with
a borough court. As far as we know, no borough court professed to
hear pleas from day to day and from hour to hour.
The procedures of the piepowder court do not seem to contain
anything particularly unfavourable to foreign merchants. It
appears that fairs provided a legal environment for commercial
activities which was based on the notion of fundamental fairness.
A systematic legal discrimination against aliens, if such a thing did
exist, played no part in the judicial framework of fairs. Of course,
fairs lasted no more than about a week.29 But that was not a
serious problem for wayfaring merchants. They could pack and
leave. Somewhere nearby, another fair would be waiting for them
with an equally attractive legal environment.



FOREIGN MERCHANTS IN CITIES

The importance of fairs, however, sharply declined in the four-
teenth century.30 By the end of the thirteenth century, cities
became the most important centres of commercial activities. The
legal environment of cities, as we shall see, was widely different
from that of fairs. All unenfranchised outsiders ± including
foreign merchants ± had to be prepared to meet ruthless legal
discrimination. But the permanent business opportunities

Statute 27 Edward III st. 2 (1353); Statute 28 Edward III c. 13 (1354). I wish to
28

thank Dr Marianne Constable, Department of Rhetoric, University of Cali-
fornia, Berkeley for kindly sending me a proof copy of her book, The law of the
other: the half-alien jury and changing conceptions of citizenship, law and knowl-
edge (Chicago, 1994). Her book contains a discussion on the early history of the
mixed jury (ch. 1). Some discussion of the arrangement of the staple court can
be found in Spencer Brodhurst, `The merchants of the staple', 17 Law Quarterly
Review (1901) 56±76.
The lord of the fair often insisted that no merchant should linger once the fair
29

was over. This was to achieve maximum concentration of commercial activities
during the period of the fair. Once the fair was over, the lord could no longer
claim the revenues (tolls, rents, judicial ®nes, etc.) from the merchants, hence
the need to make sure that no commercial activities took place outside the period
of fair.
Regarding the decline of English fairs, see Lipson, The economic history of
30

England, I, pp. 260±63. The comparable situation in France is explained in Le
Goff, Marchands et banquiers, pp. 18ff.
History
32

available in cities ± as opposed to the periodic opportunities for
commercial activities in fairs ± proved irresistible to foreign
merchants. Accordingly, they began to obtain charters which
allowed them the possibility to `buy and sell in town (emere et
vendere in villa)' in addition to the guarantee of safe-conduct, `that
they shall be able to travel to the fairs throughout all our land
(quod libere possint ire ad ferias per totam terram nostram)'. What
then was the legal environment `in villa'?

`Liberties' of a city
The law of the merchants of lower Lotharingia (c. 1130) gives us a
detailed account of the legal conditions under which various
groups of foreign merchants did their business in London. The
text sets forth how their ships shall approach London Bridge; how
the king's chamberlain and sheriffs shall take certain luxury items
and wine for the king's use while these merchants are obliged to
wait for two ebbs and a tide before commencing their business;
when they shall be allowed to sell their merchandise, and in what
quantity; to whom they can sell these goods and in what order;
when and according to what procedures they may go outside the
four boundaries of London to trade; the procedures to be observed
in unloading the goods from their ships and carrying them into
the city for sale; the tolls to be paid in doing so; the procedures for
lodging and unpacking of their goods; what they shall be allowed
to buy, and how much. There are further provisions stating that
they shall not stay in London for more than forty days and that
they shall answer all claims in the court of hustings of London.
Again, certain groups of Hanse merchants appear to have nego-
tiated better conditions: they may lodge wherever they will within
the walls of the city. According to the text, merchants from Tiel,
Bremen, Antwerp, Norway and Denmark may sojourn in the city
for one whole year. Danes, in particular, have the same privilege
as London merchants in that they may, by the law of the city of
London, go anywhere in England to trade in fairs and markets.31

The text is printed and discussed in Liber custumarum, Rolls series (1859±62)
31

part 1, pp. xxxv±xxxix, 61±3. Hansisches Urkundenbuch, III, p. 391 also printed
the same text. Mary Bateson printed a slightly different text from BL Add. MS
14252 (fos. 99b±101a) with a parallel text from a Guildhall MS, Liber Ordina-
cionum. Mary Bateson, `A London municipal collection of the reign of John', 17
Foreign merchants 33

Other groups of texts, which are known respectively as Libertas
Londonienses (c. 1133±54) and Consuetudines (not earlier than
1155), also con®rm that tight control was exercised against foreign
merchants who came to London to do business.32
Why were these foreign merchants under such restrictions? Had
they been English, would they have been immune from these
restrictions? There is nothing original about our claim that the
`liberties' of a medieval city were extended only to its burgesses
and their heirs.33 Liberties of a city meant, among other things,
that its burgesses enjoyed monopolistic control of commercial
activities within the city. The records of the borough court of
Norwich support the conclusion that `in the early Leet Rolls, [the
liberty of the city] refers exclusively to trade. One who is ``de
libertate'' may freely trade; no one else may.'34 According to Liber
albus of London, merchants who were not of the liberty of
London (mercatores qui non sunt de libertate etc.) were prohibited


English Historical Review (1902) 495±502. H. T. Riley, who edited Liber
custumarum, thought that the text belonged to the ®rst half of the thirteenth
century. Ho Èhlbaum in Hansisches Urkundenbuch suggested that the law dated
from c. 1130. Christopher Brooke et al., London, 800±1216: the shaping of a city
(London, 1975) pp. 258±92 contains a general discussion about foreign mer-
chants' commercial activities in medieval London.
Benjamin Thorpe thought that the Libertas Londonienses dated from the reign of
32

Edward the Confessor (1042±66). Thorpe, Ancient laws and institutes, I,
pp. 463±4. Felix Liebermann corrected this view and suggested that the text
dated from c. 1133±54. Die Gesetze der Angelsachsen, I, p. 673. The Consuetu-
dines appears under the heading `Quedam civitas consuetudines sive libertates'
in BL Add. MS. 14252. It is generally thought to be slightly later than the
Libertas Londonienses. The text is printed in Bateson, `A London municipal
collection', 711±18. Terence H. Lloyd, Alien merchants in England in the high
Middle Ages (Brighton, 1982) pp. 10±11 contains a brief discussion of the
customs of London which is based on these texts.
Borough charters normally stipulated that the liberties were granted to the
33

burgesses and `their heirs'. This was probably because it was not entirely clear
whether burgesses formed a `corporate' body which has the eternal existence
transcending the deaths of its component individuals. In the absence of the legal
notion of corporation, the most important legal device to cope with time was
inheritance.
Leet jurisdiction in the city of Norwich during the thirteenth and fourteenth
34

centuries, 5 Selden Society (1891) p. lxxxvi. For various examples, see ibid.,
pp. xxxvii, lxxxviii, 48, 72. Ballard, British borough charters, 1042±1216,
pp. 211±14 gives a number of clauses from the twelfth-century borough charters
which also support this conclusion. On this topic in general, see Charles Gross,
The gild merchant: a contribution to British municipal history, 2 vols. (Oxford,
1890).
History
34

from selling wine or other wares by retail within the city.35 As far
as this clause is concerned, there was little legal difference between
merchants from Torksey and merchants from Antwerp in the
sense that neither of them were of the liberty of London. Whether
the former group of merchants were in a better legal condition
than the latter is a question which cannot be answered until the
contents of each merchant group's privileges have been carefully
compared. To know that merchants from Torksey were an
English king's subjects does not help. If merchants from Norwich,
Colchester or Leicester could do business in London under fewer
restrictions than merchants from Norway, it was not because they
were English, but simply because they had acquired better and
more comprehensive privileges.36 In 1373, for example, the bur-
gesses of Beverley were asked to pay tolls in York. Their goods
were seized upon failure to comply with the demand. The
burgesses had to defend their liberty by confronting the mayor of
York with the following provision of their charter which exempted
them from tolls in all of Yorkshire: `Et sciatis quod sint liberi et
quieti ab omni theloneo per totam schiram Eboraci sicut illi de
Eboraco'.37 Whether or not these merchants of Beverley were
English was irrelevant. No one was asking whether they owed
allegiance to the English king. All that mattered was whether they
had speci®cally acquired the necessary liberty, and how they could
prove it.
The Norwich customs document (c. 1340) summarises that all
this was, after all, a question of being liberi or serui: `No one who
resides in the city shall conduct mercantile activities unless he is in
scot and lot of the said city and contributes to the communal aid
because all those who are received into the citizenry are liberi and
no serui of anybody.'38 All other categorical divisions ± such as

Liber albus, Rolls series (1859) p. 143.
35

Burgesses of royal boroughs were often granted the liberty to trade free from
36

tolls throughout England. Borough charters for non-royal boroughs usually
contain a provision which exempts the burgesses from tolls within the territory
controlled by the grantor of the charter. There is no need to multiply the
examples, which may be perused in Ballard, British borough charters,
1042±1216, pp. 180±90.
Beverley town documents, 14 Selden Society (1900) p. 44.
37

Leet jurisdiction in the city of Norwich, p. lxxxvi (`Item nullus mercandizet in
38

ciuitate qui in eadem facit residentiam nisi sit ad lottum et scottum illius civitatis
et ad communia eiusdem auxilia contribuat et quia omnes qui recipientur in
parem ciuitatis sint liberi et non servi alicuius').
Foreign merchants 35

foreigner/Englishman; alien/subject ± lose signi®cance in light of
such a text. One must not forget that a great number of people
who were born in medieval England lived all their life and died
without ever having been able to claim the status of liberi as
understood by the author of the Norwich customs document.
This is why Bracton could still follow Gaius and, amidst the
highly patriotic current of the time,39 say that the division
between liberi and serui was the prima diuisio personarum.

Merchant groups' access to a city
Throughout the Middle Ages, foreign merchants kept coming to
England. The volume and intensity of their contact with England
may well have ¯uctuated depending on the economic, military and
political circumstances. But the legal framework in which the
contact was made remained more or less stable, though it was not
static. In the remaining pages of this chapter, I shall attempt to
identify this legal framework. Initially, foreign merchants' contact
with the urban business centres of England seems to have taken
the form of seeking an access to the liberties of a city. In 1194, for
example, the merchants of Cologne obtained a charter which
contained the following passage: `that [they] shall be able freely to
go to fairs in all our land and to buy and sell in London and other
cities'.40 We have already discussed the earlier charters issued to
them in 1157 and 1175. The earlier ones did not contain this
passage. The latter half of the passage (emere et vendere et in villa
London. et alibi) suggests, in particular, that they managed to
acquire the liberty to trade in cities. We note that the charter was
not quali®ed by a proviso regarding the pre-existing liberties of
third parties. Compare, for example, the following item of liberty
which was conceded to the burgesses of Leicester in 1199: `That
they may freely and without hindrance go and return and trade
throughout the whole of our land with all their goods and wares
saving to us and others our due and just customs.'41 Whether it was

See in this connection Ernst Kantorowicz, `Pro patria mori in medieval political
39

thought', 56 American Historical Review (1950±1) 472±92; Gaines Post, `Two
notes on nationalism in the Middle Ages', 9 Traditio (1953) 281±320.
Hansisches Urkundenbuch, I, 22 (`quod libere possint ire ad ferias per totam
40

terram nostram et emere et vendere et in villa London. et alibi').
Ballard, British borough charters, 1042±1216, p. 216 (`Quod libere et sine
41
History
36

due to carelessness or excessive generosity, the omission of such a
proviso might have put the merchants of Cologne in an exception-
ally privileged position. However, the con®rmation charter of
1210 put an end to this situation. We ®nd that the grant of liberty
was quali®ed by the proviso, `salva libertate civitatis nostre
Londoniensis'.42 London merchants seem to have succeeded in
keeping a check on the advance of Cologne merchants.
In the following decades, we see many more groups of foreign
merchants obtaining the same items of liberties as were usually
granted to burgesses of English boroughs. In 1230, for example,
merchants from Nantes obtained a charter which provided that
they might trade freely in all the king's dominions quit of all
customs in coming, staying or returning, saving the liberties of
the city of London and of others who had grants of earlier date.43
A charter issued to `all merchants of Gutland' in 1237 promises
that the recipients shall be quit of all regional tolls in England.44
In 1255, merchants of St Omer in Flanders secured a charter
which provided that in all the king's lands and dominions, they
and their goods, wherever they were found, should be free from
arrest for any debt, unless they themselves were sureties or
principals of the debt.45 Burgesses were usually entitled to carry
out summary arrest of the goods and persons of unenfranchised
extranei.46 Moreover, in their dealings with burgesses, extranei
were deemed collectively responsible for debts of their colleagues
from the same area.47 Exemption from the collective responsibility
was an important item of mercantile liberty which a good borough
charter should not fail to mention. Burgesses of Bristol, for


impedimento omni eant et redeant et negotientur per totam terram nostram cum
omnibus rebus et mercandisis suis salvis nobis et aliis debitis et justis consuetudi-
nibus'). Emphasis supplied.
Hansisches Urkundenbuch, I, p. 37. The proviso may have referred to the charters
42

issued to the burgesses of London in 5 Richard I (1193), and in 1 John (1199).
These charters are printed in Liber custumarum, part 1, pp. 248±9, 251.
Calendar of charter rolls, I, 124±5.
43

Ibid., 227.
44

Ibid., 441. Regarding a similar privilege conceded to merchants of Ypres in
45

1232, see Lloyd, Alien merchants, p. 107.
The distress between burgesses required a licence of the reeve. See Ballard,
46

British borough charters, 1042±1216, p. 162 (`Burgensi cum Burgense namiare
non liceat sine licentia prepositi'; from a charter to Wearmouth 1162, 1186).
Pierre-Clement Timbal, `Les lettres de marque dans le droit de la France
‚ Á
47

medievale' in L'Etranger, part 2 (Brussels, 1958) pp. 112±13.
‚‚
Foreign merchants 37

example, obtained the privilege as evidenced by the following
clause in their charter of 1188: `that no burgess be distrained
anywhere in my land or realm for any debt unless he be the debtor
or a surety'.48
In my view, these charters issued to foreign merchants in the
earlier half of the thirteenth century indicate that foreign merchant
groups were gaining access to the business opportunities of cities.
Had they been concentrating on fairs only, why would they have
taken the trouble to obtain these burghal liberties? Fairs did not
usually involve the liberties of cities. Even if some fairs were held
in urban locations, the liberties of burgesses, as we saw, were
superseded by the seigneurial authority during the fair.
The Carta mercatoria of 1303 was the culmination of this legal
development. The charter was issued to the merchants of `Ale-
mannie Francie Ispanie Portugalie Navarre Lumbardie Tuscie
Provincie Cathalonie ducatus nostri Aquitannie Tholosanie
Caturtinii Flandrie Brebantie et omnium aliarum terrarum et
locorum extraneorum'.49 In addition to the routine promise of
safe-conduct, the charter speci®cally provides that these foreign
merchant groups shall have the liberty to trade in cities: `in
civitatibus burgis et villis mercatoriis possint mercari'. Moreover,
the charter abolishes the restrictions on lodging and the usual
forty-day limit on the sojourn in cities: `quod predicti mercatores
in civitatibus burgis et villis predictis pro voluntate sua hospitari
valeant et morari cum bonis suis'.50
The charter reveals further advances in foreign merchants'
attempts to in®ltrate into the protectionist legal regime of cities.


There are many similar examples in Ballard, British borough charters,
48

1042±1216, pp. 161±6. The text quoted here is from p. 165 (`quod nullus
burgensis alicubi in terra vel potestate mea namietur vel distringatur pro aliquo
debito nisi sit debitor vel plegius').
The text is printed in Norman Gras, The early English customs system (Cam-
49

bridge, Mass., 1918) pp. 259±64.
Regarding this clause, Norman Gras makes the following comment: `Foreign
50

merchants were to be free to live in the towns but at the pleasure of their hosts, a
quali®cation which would easily leave open many a loophole of supervision and
restraint' (ibid., p. 137). He does not seem to have taken full account of the
previous legal situation where foreign merchants had to leave after forty days
regardless of whether they pleased their host or not. Whether the clause could
lead to arbitrary supervision and restraint was not the point. The point was that
foreign merchants were now enabled to stay in cities as long as they kept their
host satis®ed.
History
38

For instance, it is provided that disputes involving the foreign
merchants must be quickly resolved on a daily basis if such
disputes could be dealt with by law merchant: `celerem justitiam
faciant de die in diem sine dilatione secundum legem mercatoriam
de universis et singulis que per eandem legem poterunt terminari'.
We may recall that the merchants of lower Lotharingia were
required to answer all claims at the court of hustings of London,
which was held only once a week.51 Liber albus con®rms that this
had indeed been the practice in London and that it had caused
some degree of inconvenience to foreign merchants. According to
this source, one of the questions raised during the eyres of London
in 5 and 15 Henry III concerned the resolution of disputes
involving wayfaring merchants. The question began as follows:
`whether or not the Bailiffs of the city could determine the
disputes brought by wayfaring merchants who would not be able
to stay. . .'. We are told that the hearing of the case had to wait
until the weekly session of the court of hustings: `quod non solent
teneri extra Hustengum'. But during those eyres, it was agreed
that, from then on, the mayor and sheriffs, assisted by two or
three aldermen, should hear such plaints from day to day and
provide legal remedies without delay.52 The concession offered by
the Carta mercatoria was, therefore, not unprecedented in
London. However, we may not jump into a conclusion that
the concession was super¯uous because we do not know the
situation in other cities. Moreover, the concession of the Carta
mercatoria had the additional merit of specifying that the trial
ought to be conducted `according to law merchant (secundum legem
mercatoriam)'.
The Carta mercatoria further provided that in all cases invol-
ving foreign merchants, except criminal cases carrying a death
penalty, the inquest must be done by a mixed jury as long as there
was a suf®cient number of foreign merchants: `inquisicio ®eri
debeat sit medietas inquisicionis de eisdem mercatoribus et med-
ietas altera de aliis probis et legalibus hominibus loci illius ubi
placitum illud esse contigerit'. As we saw, foreign merchants had
already been enjoying these trial procedures during the fairs.

See above, p. 32. On the frequency of the court of hustings in London, see
51

Ballard, British borough charters, 1042±1216, p. 142 (`Et husteng sedeat semel in
hebdomada, videlicet die lunae'; London charter of 1131).
Liber albus, p. 67.
52
Foreign merchants 39

When the fair was over, however, they must have been at the
mercy of the borough court, whose procedures were rather biased
against all unenfranchised `extranei'. The following text of
Quedam ciuitatis consuetudines siue libertates of London (c. 1155)
provides a good insight:
If a non-citizen brings a lawsuit against a citizen, the proof shall not be by
non-citizens [presumably by non-citizen witnesses or oath-helpers] unless
one of the witnesses or oath-helpers be of the city; and if a citizen brings a
lawsuit against a non-citizen who does not have a land in the city either,
the proof shall not be by [citizen] witnesses unless one of them be of the
county where resides the non-citizen.53
The procedural arrangement described in this text must not be
confused with the mixed inquest. The mixed inquest promised by
the Carta mercatoria required that one half (medietas) of the jurors
were to be empanelled by foreigners if one party was a foreigner.
The above-quoted passage only requires that the proof shall not
be by an all citizen or all non-citizen panel. If the half-foreign
inquest was intended to guarantee a maximum level of fairness,
the procedures described in the above passage are aimed only at a
minimum level of protection from ruthless discrimination
rampant in a borough court.54
As we saw, foreign merchants in London had already been
bene®ting from the procedural guarantees of a half-foreign jury in
cases of contract, debt or trespass.55 The Carta mercatoria ex-
tended the promise to all cases involving foreign merchants except
criminal cases carrying a death penalty (in omnibus generibus
placitorum salvo casu criminis pro quo in¯igenda sit pena mortis). In
short, the Carta mercatoria promised that foreign merchants were
to be provided with a fair and speedy legal remedy not only in


BL Add. MS 14252, fo. 119a. The Latin text is printed in Bateson, `A London
53

municipal collection', 713 (`Si quis forensis hominem civitatis implacitaverit,
non poterit comprobare eum per forenses nisi alter de civitate sit; et si homo
civitatis forensem implacitaverit, qui [de] civitate non sit, neque in ea terram
habeat, cum testibus eum probare non poterit, nisi alter sit de comitatu in quo
manet').
Charles Gross' explanation of the procedures of the piepowder court is not
54

entirely satisfactory because the procedural differences ± which must have
existed before the Carta mercatoria was introduced ± between a borough court
and a piepowder court were not suf®ciently stressed. See Select cases concerning
the law merchant, 1270±1638, I, introduction.
We quoted a passage dating from c. 1285 on p. 30 above.
55
History
40

certain limited commercial cases in fairs, but also in cities, in a
wider range of cases, and throughout the year.
Norman Gras ®nds it hard to believe that foreign merchants
could possibly have been given such a wide range of liberties:
`[t]he exact extent to which the merchants were permitted by local
in¯uences to enjoy these and other similar bene®ts granted cannot
. . . be reckoned. Certainly the merchants received something
short of the full measure of the grant.' But he offers no evidence to
support his incredulity. Professor Maitland, on the other hand,
attempted to belittle the importance of the Carta mercatoria for
the study of the law of alien status: `[i]t will interest rather the
economist than the lawyer, and rather the student of the four-
teenth and ®fteenth centuries than the student of earlier times'.
Since he believed that the English law of alien status was the result
of military confrontations with French kings, the materials re-
lating to peaceful commercial activities ± which often contain
embarrassingly favourable treatments for foreign merchants ±
were regarded as something which is best ignored. `Mere common
law has little to do with these foreign merchants', he said. But we
see no reason to steer away from foreign merchants in studying the
law of alien status. Foreign merchants formed, after all, the most
important bulk of foreigners that came to England in the Middle
Ages. The legal problems they posed and the solutions proposed
and adopted by lawyers of the time must be studied as an
important part of the history of the law of alien status.56
It is true that the foreign merchants agreed to pay a higher rate
of customs duty in exchange for these liberties. Payment of higher
customs duty is clearly a legal disadvantage. Is this the beginning
of the legal discrimination against aliens? The apparent similarity
between this and the alien's legal disability is, however, deceptive.
The higher rate of customs duty, known as Nova custuma of 1303,
was portrayed by the contemporaries as resulting from negotiation
and mutual agreement ± whether ®ctitious or real ± between the
king and the foreign merchants. As far as the legal argument is
concerned, therefore, the unequal treatment embodied in the new
customs duty is not fundamentally different from the legal in-
equality between merchants of London and merchants of South-

See Gras, The early English customs system, p. 259; Pollock and Maitland, The
56

history of English law, I, pp. 464±5, respectively.
Foreign merchants 41

ampton, for example. In all these cases, there existed legal
inequality stemming from negotiation and the ensuing agreement
between the grantor and the recipients of mercantile liberties.
There is nothing in the nature of such a regime to distinguish
foreign merchants from English merchants in a systematic
manner. Sometimes, foreign merchants managed to secure a better
deal than the English merchants. Always, some merchants,
whether English or foreign, managed to secure a better position
than others. The introduction of Nova custuma of 1303 did not
change this fundamental structure in any way.57
What becomes clear, I hope, from the texts examined so far in
this chapter is that the legal condition of merchants in medieval
England was de®ned solely in terms of `liberties'. The Carta
mercatoria was, of course, focused solely on the liberties speci®-
cally acquired and speci®cally granted. Payment of higher or
lower customs duty; enjoyment or loss of monopolistic control of
trade in the city; imposition or removal of restrictions upon
commercial activities; payment of tolls, and exemption from tolls,
etc. can all be explained as a question of acquiring liberties and
the degree of comprehensiveness of the liberties thus acquired.
Liberties in the Middle Ages were acquired through purchase,
inheritance, marriage or gift. We have no evidence yet to suppose
that ethnic identity (Englishness) or political allegiance (®delity to
the king) was deemed to be a suf®cient ground to claim and enjoy
liberties.

Individual settlement (from the 1250s)
In the middle of the thirteenth century, there was an important
change in the pattern of long-distance trade in Europe. Charter
rolls provide some evidence which allows us to describe the
change. In 1252, for example, a Florentine merchant, Deutayutus
Willelmi, obtained a charter which provided that he and his family
members might freely buy, sell and carry on business throughout
the king's dominions `just as any citizens of London (sicut aliquis

Having successfully negotiated an advantageous rate of customs duty from the
57

foreign merchants mentioned in the Carta mercatoria of 1303, Edward I
attempted to negotiate a similarly increased rate of customs duty from some of
the English merchants. This attempt was unsuccessful. See W. Stubbs, The
constitutional history of England, 3 vols., vol. II, 3rd edn (Oxford, 1887) p. 164.
History
42

civum nostrorum London.)'. It was further provided that he and his
heirs should be in the gild merchant of the city and that they
should have other liberties and free customs which the citizens of
London had.58 In short, the charter con®rmed that the recipient
was given all the liberties of a citizen of London. From then on,
we ®nd many similar examples. Alwyn Ruddock mentions a few
Italian merchants known to have held lands and houses in South-
ampton in the latter half of the thirteenth century. Fornari de
Lucca, for example, was married to the heiress of a leading
burgess of the city. T. H. Lloyd gives references to one John
Brilond who was styled as citizen of Lubeck and London in the
È
1260s, and to one Gerard Merbode, son of Merbode of Dort-
mund, who was styled as citizen of London in the 1280s. Professor
Lloyd also mentions certain Flemmings who were reputed `deni-
zens' in c. 1270. Alice Beardwood too notes that Peter Bonyn of
Flanders became a citizen of London in 1271.59
These cases seem to allow us to make the following general-
isation: until the ®rst half of the thirteenth century, mercantile
liberties were negotiated by groups of foreign merchants them-
selves. Those merchants actually came to England, secured the
necessary liberties and carried out commercial activities them-
selves. By the middle of the thirteenth century, this practice seems
to have lapsed into disuse. Instead, foreign merchant groups
began to rely more and more on resident agents in England rather
than coming to England and trading for themselves. This explains
the increasing number of individual foreign merchants settling
down in cities permanently. In short, merchants ceased to be
travellers. They became city-dwellers. Sooner or later, the urban
power structure was to be in their hands. Their transformation


Calendar of charter rolls, I, 407. See also Public Record Of®ce, Charter roll, 37
58

Henry III m. 21, which gives the following text: `quod ipsi cum propria familia
sua adeo libere et quiete emere possint vendere et negotiari . . . per totam
potestatem nostram sicut aliquis civum nostrorum London'. The reference to
the gild merchant is enigmatic because London did not in fact have a gild
merchant. Professor T. H. Lloyd kindly drew my attention to this point.
See, respectively, Alwyn Ruddock, Italian merchants and shipping in South-
59

ampton, 1270±1600 (Southampton, 1951) pp. 120±1; T. H. Lloyd, England and
the German Hanse, 1157±1611: a study of their trade and commercial diplomacy
(Cambridge, 1991) pp. 44±5; Lloyd, Alien merchants, p. 13; Alice Beardwood,
`Mercantile antecedents of the English naturalization laws', 16 Medievalia et
Humanistica (1964) 69.
Foreign merchants 43

(from wayfarers to city-dwellers) was accompanied by remarkable
changes in their lifestyle and business pattern.60
The new trend was also re¯ected in the Carta mercatoria of
1303. The foreign merchant groups enumerated in the charter
were permitted to do wholesale trade `as well with the native,
indigenous merchants as with the foreign, non-citizen merchants
or agents (tam cum indigenis seu incolis eiusdem regni et potestatis
nostre predicte quam cum alienigenis extraneis vel privatis)'. Until
then, I suppose, foreign merchants' commercial activities in cities
were limited to wholesale transactions with the native merchants
(cum indigenis). Why then did foreign merchants want to do
wholesale trade with alienigenis extraneis vel privatis as well? The
word `agent (privatus)' provides a clue.61 Permission for wholesale
trade `cum alienigenis extraneis vel privatis' meant that foreign
merchant groups were allowed to transfer their goods to their
resident agents. These resident agents, as we saw in the case of
Deutayutus Willelmi, might have already acquired the liberties to
do retail business in a city `just as any citizen (sicut aliquis civum)'
of the same city. Probably not all foreign merchant groups had
their own resident agent in England. Some merchant groups from
Spain, for example, may have hired, on an ad hoc basis, an Italian
merchant who had acquired the liberties of, say, London. Also,
foreign merchant groups certainly did not have a resident agent in
every city in England. There may have been occasions when a
Hanse merchant who was resident in Sandwich, for example, was
requested to go to Southampton to act as an agent of Portuguese

Alwyn Ruddock calls it a `revolution' in the method of long-distance trade.
60

Italian merchants and shipping, p. 117. See also Lloyd, Alien merchants, p. 77;
and, generally, R. S. Lopez, The commercial revolution of the Middle Ages,
950±1350 (New Jersey, 1971). The development of the banking system may also
be discussed in this connection. By the late thirteenth century, merchants
completely took over the position of the urban ruling class. Rodney H. Hilton,
English and French towns in feudal society ± a comparative study (Cambridge,
1992) p. 18. Regarding the situation in Florence, Genoa, Venice and Milan, see
Ãge
Yves Renouard, Les Hommes d'affaires Italiens du moyen a (Paris, 1968)
pp. 110ff. During the preceding centuries, however, it is debatable whether the
urban patricians were mainly composed of merchants. Henri Pirenne argued
that the origin of medieval European towns must be sought in the revitalisation
of the merchant population. Henri Pirenne, Les Villes et les institutions urbaines,
2 vols., 2nd edn (Paris, 1939). Paul Hohenberg et al., The making of urban
Europe, 1000±1950 (Cambridge, Mass., 1985) question Pirenne's thesis.
According to the Revised medieval Latin word-list from British and Irish sources,
61

ed. R. E. Latham (London, 1965), privatus meant `close friend' or `con®dant'.
History
44

merchants. The phrase `cum alienigenis extraneis vel privatis'
adopted by the Carta mercatoria can be interpreted to encompass
all these possible situations.62
The impact of allowing the foreign merchants to trade with
their resident agents can be better appreciated when we look at the
sources which appeared in Edward II's reign. The impressive
range of privileges granted by Edward I to a large number of
foreign merchant groups was certainly not well received by
English merchants. Soon after the death of Edward I, therefore,
the Carta mercatoria was declared illegal by the Ordainers in 1311
in a rather chaotic political climate. Both the privileges enumer-
ated in the charter and the burdens of the higher rate of customs
duty (Nova custuma) fell in abeyance thereafter, only to be
selectively restored in the reign of Edward III.63 Consider, then,
the following passage from Liber albus of London: `that inquiry
shall be made each year, if any persons enjoying the freedom of
the city have traded with the property of others who are not of the
freedom, avowing that such goods are their own. And those who
shall be lawfully convicted thereof, shall lose the freedom.'64 This
clause is from Edward II's charter to the burgesses of London. It
clearly indicates that London merchants would no longer put up
with the wholesale transfer of goods between foreign merchants
and their agent who was de libertate civitatis of London, which
was precisely what the Carta mercatoria allowed. Although the
precise date of this charter of Edward II is not available, I believe
that it appeared when the Carta mercatoria was no longer in
effect.65
The economic advantage of having resident agents has already
been noted by Alwyn Ruddock: `Whereas the visiting merchant

A foreign merchant who had acquired the liberties of a city might still be
62

perceived as alienigena. The term `alienigena' referred to the ethnic identity of a
person. It did not have much to do with the person's legal status as a free-man of
a city.
Stubbs, The constitutional history of England, pp. 344±5.
63

Liber albus, p. 142 (`quod quolibet anno inquiratur si qui de libertate civitatis
64

exercuerint bona aliorum qui non sunt de libertate, advocando bona illa sua
propria bona esse. Et illi que inde legitime convicti fuerint, libertatem amit-
tant'). The translation is from The white book of the city of London, trans. Henry
T. Riley (London, 1861) p. 127.
See also Calendar of letter-books . . . at the Guildhall, Letter Book E, c.
65

1314±1337, ed. R. R. Sharpe (London, 1903) pp. 42, 45 (both entries are
datable as post-1314) and Liber albus, p. 264 (undatable).
Foreign merchants 45

was obliged to let his goods go comparatively cheaply when the
arrival of a ship with a large cargo brought down prices in the
neighbourhood, the resident agent could bide his time and hold
back his merchandise until prices reverted to normal again'.66


Hildebrand Suderman ± a case study
Individual settlement of foreign merchants in English cities
continued well into the fourteenth century. In this connection, we
will discuss the letters patent issued during 1324±35 to an
in¯uential Hanse merchant, Hildebrand Suderman. Unlike earlier
letters patent to foreign merchants who had similar requests to
Suderman's, the letters patent issued to this Hanse merchant
contain no reference to the liberties of any particular city. In June
1324, for example, Suderman obtained the liberties to trade as the
king's merchant (ut mercator noster). It was further provided in
the charter that he should be able freely to carry out other business
of his own as if he were a native of the kingdom (velut indigena
regni et potestatis). The same liberties were promised again in
1335.67
So far, these documents have been treated as `precursors' of the
letters of denization. Clive Parry, for example, argued that the
letters patent issued to foreign merchants in the fourteenth
century should be viewed as the `innominate forerunners' of
later letters of denization. According to Alice Beardwood, these
documents would form the `mercantile antecedents' of later letters
of denization. The same attitude can be found in the writings of
Philippe Dollinger, who regarded these documents as evidence of

Ruddock, Italian merchants and shipping, p. 119.
66

Calendar of patent rolls, 1321±1324, p. 280 (1323, safe-conduct), p. 407 (April
67

1324, safe-conduct as well as exemption from the arrest of goods on account of
others' debt), p. 434 (June 1324, grant, during pleasure, of liberties to trade
`velut indigena'); Calendar of patent rolls, 1324±1327, p. 128 (1325, the previous
grant extended for life); Calendar of patent rolls, 1327±1330, p. 448 (1329, grant
of 1325 recon®rmed); Calendar of patent rolls, 1334±1338, pp. 187, 192 (exemp-
tion from the higher rate of customs duty). As a leading Hanse merchant in
London, he is a well-known ®gure both then and now. Alice Beardwood, Alien
merchants in England 1350±1377: their legal and economic position (Cambridge,
Mass., 1931) p. 61 and Lloyd, England and the German Hanse, p. 35 discuss
various materials relating to him in great detail. See also Public Record Of®ce,
Patent rolls, 17 Edward II, part 2, m. 5; 9 Edward III, part 2, m. 4 for the
original Latin text which contains the phrase `velut indigena regni et potestatis'.
History
46

the mechanism of acquiring English nationality.68 The expression
`velut indigena' seems to have encouraged such an interpretation.
However, to translate `indigena' into `denizen' and to treat these
documents as precedents of the letters of denization would
amount to abandoning the task of historical analysis and replacing
it with an uncritical lexicographical operation. Words do not carry
®xed values which can be transferred into another language across
a long span of time. Not only do we need to examine the precise
circumstances under which the term `indigena' began to appear in
these documents, but also the legal reasoning underlying the
deployment of this particular word would have to be explained
before a decision is made to translate `indigena' into `denizen'.
We have already encountered the word indigena in the Carta
mercatoria: `tam cum indigenis seu incolis eiusdem regni . . .
quam cum alienigenis extraneis vel privatis'. There is no doubt
that `indigenae' did not mean all native Englishmen. A large
number of native Englishmen had never enjoyed the mercantile
liberties, and they could under no circumstances be included in
the referent of the term `indigenae' here. Can the word `denizen'
adequately bring out this situation? The expression `denizen' or
`denization' comes with an implicit suggestion that the division
between alien and denizen should be of superior importance
compared to other personal legal divisions among the inhabitants
of England. This can hardly be the case during the period that
concerns us here. From the legal point of view, to be a `denizen' in
medieval England could not have meant much. On the other
hand, whether one was an unfree tenant of a farm land or a
merchant free-man of a city did make a big difference. No sensible
person would have paid good money to obtain the `denizen status'
in medieval England even if such a thing did exist. Mercantile
liberties, on the other hand, were worth paying for. In fact, the
above-mentioned documents were about the mercantile liberties
acquired by Hildebrand Suderman. This Hanse merchant was
therefore no different from Deutayutus Willelmi, who, as we saw,

Clive Parry, British nationality law and the history of naturalization (hereafter,
68

History of naturalization) (Milan, 1954) pp. 9, 18, 24±5. Beardwood, `Mercantile
Ácles (Paris, 1964)
antecedents'. Philippe Dollinger, La Hanse, XIIe±XVIIe sie
p. 77: `L'acquisition de la nationalite anglaise, dont l'exemple le plus ancien

connu remonte a 1309, se ®t d'abord sous la forme de l'admission a la
Á Á
bourgeoisie d'une ville.'
Foreign merchants 47

obtained the same kind of liberties in 1252 which permitted him
to trade freely just as any `citizens' of London (sicut aliquis civum
nostrorum London.). If that was the case, why did the letters patent
in the early fourteenth century choose the word `indigena' rather
than `civis'?69
The following events may be considered in this connection. In
1312, the free-men of London petitioned that unknown strangers
should be admitted only upon production of a certi®cate of
London merchants whose trade they wished to enter.70 In 1319,
London merchants managed to impose the requirement that the
admission to the liberty of the city should be effected only in the
hustings with the consent of the free-men of the city.71 In 1326,
all foreigners who had been admitted to the liberty of London
were removed from it. It was further ordained that henceforth the
admission should be on the security of six reputable men of the
trade through which the person sought entry into the liberty of
the city.72 These events indicate that the free-men of London
were increasingly sensitive to the king's practice of selling mercan-
tile liberties to foreign merchants. Suderman's letters patent
(1324±35) were drawn up in these years when it was politic to
avoid a speci®c mention of London. But the legal rigour of the
concept of `civis' in medieval England did not allow the possibility
of using the word unaccompanied by a speci®c reference to a
particular city. Civis had always to be accompanied by a reference
to `such and such a city' because the contents of the liberties
differed from city to city.73 Under these circumstances, `velut

There are plenty of examples where the recipient of mercantile liberties was
69

speci®cally referred to as a `burgess' of a particular borough rather than as an
`indigena' of the realm. See British borough charters, 1216±1307, ed. A. Ballard
and James Tait (Cambridge, 1923) pp. 137±8. Beardwood, `Mercantile ante-
cedents', p. 69 also gives a couple of examples.
Calendar of Letter Book E, p. 13. The reference is from Beardwood, Alien
70

merchants, p. 68.
Calendar of Letter Book E, p. 214; Liber albus, p. 142 (`quod nullus alienigena in
71

libertatem civitatis praedictae admittatur, nisi in Hustengo').
Liber albus, p. 142 (`quod indigena, et praecipue Anglicus, mercator de certo
72

mistero vel of®cio in libertatem civitatis praedictae non admittatur, nisi per
manucaptionem sex proborum hominum de certo mistero vel of®cio, etc.'). See
Beardwood, Alien merchants, p. 68 for further references.
For this reason, we ®nd it preferable to render `civis' into `burgess'. The word
73

`citizen' ± if it is used without a reference to a particular city ± is prone to
confusion. The modern concept of `citizen' must be sharply distinguished from
the medieval notion of `civis'. Different medieval cities had different legal
History
48

indigena' must have proved preferable precisely because of its
vagueness. The protest of London merchants was effectively dealt
with by replacing the precise legal term `civis' with a deliberately
ambiguous term `indigena'. This point has already been noted by
Philippe Dollinger.74
A comparison with the lettres de bourgeoisie issued in France
during the same period produces some good results. The trend of
individual merchants' settlement in cities appears to be con®rmed
in France as well. From the middle of the thirteenth century, we
®nd references to `bourgeois du roi'.75 Many of them were foreign
merchants who managed to obtain mercantile liberties from the
king.76 Both in England and in France, the essential contents of
the letters patent issued during this period were mercantile
liberties. For example, the lettre de bourgeoisie issued to Jacques
Barthelemy of Florence (1325) promised the liberties `to remain,
‚‚
come and go, to be engaged in commerce and other legitimate
transactions'.77 Unlike in England, however, the French lettres de
bourgeoisie did not opt for the vague expression `velut indigena'.
We ®nd unequivocal statements that the recipient was to have
these liberties `ut burgens'.78 Why?

environments for business. T. H. Lloyd, for example, notes that London
handled considerably less than half of all foreign trade until the end of the
thirteenth century. He suggests that it was probably because of the particularly
restrictive legal environment for business in London compared to other cities.
Lloyd, Alien merchants, p. 12.
He recognised that foreign merchants in England initially obtained mercantile
74

liberties `sous la forme de l'admission a la bourgeoisie d'une ville'. He then went
Á
on to point out, `La pratique ayant suscite des dif®cultes, la couronne en vint,
‚ ‚
depuis 1324, a conferer a des etrangers l'``indigenat'' leur reconnaissant l'egalite
Á ‚ Á ‚ ‚ ‚ ‚
des droits et des privileges economiques avec les marchands anglais dans toute
Á ‚
l'etendue du royaume.' Dollinger, La Hanse, pp. 77±8.

Jacques Boizet, Les Lettres de naturalite sous l'ancien re
‚ ‚gime (Paris, 1943) p. 22.
75

Á
More details can be found in Leon Mirot, La Colonie lucquoise a Paris du XIIIe

76

Ácle Ácle Á
sie au XVe sie (Paris, 1927); C. Piton, Les Lombards en France et a Paris, 2
vols. (Paris, 1893); Edmond Rene Labande, `De quelques Italians etablis en
‚ ‚
Ãge: de ‚s a la
‚die Á
Languedoc sous Charles V' in Me ‚langes d'histoire du moyen a
me ‚moire de Louis Halphen (Paris, 1951) pp. 359±67.
For the entire text and reference, see Boizet, Les Lettres de naturalite p. 169
‚,
77

(`quod . . . morari conservari ire redire incedere mercaturas aliosque contractus
licitos exercere valeant').
There are many examples: `ut ceteri burgenses et mercatores regni nostri
78

tractetur' (1312); `quod gaudeat omni privilegio libertate qua alii originarii
burgenses de Rupella gaudent' (1322); `quod de inceps non ut Ytalici, sed ut
cives et regnicole nostri quantum ad omnia reputentur' (1324); `[q]uodque . . .
possint contrahere et quoscumque contractus licitos exercere sicut ceteri nostri
Foreign merchants 49

First, there is enough evidence indicating that royal intervention
in the affairs of towns and communes in France became a regular
event from the end of the thirteenth century.79 By 1358, we ®nd
Charles V, the prince regent, declaring: `To our father and to us
who represent him belongs exclusively the right to create and
constitute cities and communes'.80 As a result of this development,
there was no meaningful distinction between royal boroughs and
seigneurial boroughs in late medieval France. All towns and
communes were under the direct authority of the king. This may
be one of the reasons why French kings enjoyed the unchallenged
power to sell mercantile liberties to a stranger and make him a
bourgeois du roi.
Second, one may turn to the very concept of bourgeois du roi,
that is, a burgess of no particular borough. In England, the
political and administrative power of the kings during the twelfth
and thirteenth centuries allowed them to make impressive pro-
mises. Burgesses of a royal borough in England could obtain
mercantile liberties which were effective throughout the kingdom
(per totam terram et potestatem Regis). French kings, on the other
hand, were not in the position to make such promises during that
period. Consequently, bourgeois of various seigneurial boroughs
often entered into an agreement (traite d'entrecours) whereby one's

`parochial' liberties were recognised in the other's borough, and
vice versa.81 That, of course, was one way of coping with the
increased business need within the fragmented legal environment
of medieval France. Another method which became popular from
the middle of the thirteenth century was to obtain the lettre de
bourgeoisie and become a bourgeois du roi. Jacques Boizet notes that
in many cases, the recipient of the lettre de bourgeoisie had already

burgenses dicti loci' (1328); `et qu'ils jouissent et puissent et doyent jouir de
toutes et teles franchises, privileges, libertez et coutumes come ioissent et ont
accoustume a ioir nos autres bourgeois de Paris et de nostre dit royaume' (1341).
All these lettres de bourgeoisie are printed in Boizet, Les Lettres de naturalite
‚,
pp. 165±80.
On this topic in general, see C. Petit-Dutaillis, Les Communes francaises: Ë
79

Áres ‚volution des origines au XVIIIe sie (Paris, 1947).
Ácle
caracte et e
Áme
Ordonnances des roys de France de la troisie race . . ., vol. III (1355±64), ed.
80

D.-F. Secousse (Paris, 1732) 305 (`Au roi notre pere et a nous qui le represen-
Á Á ‚
tons appartient exclusivement le droit de creer et de constituer des consulats et

Á
des communes'). Quoted from Achille Luchaire, Les Communes francaises a Ë
l'e
‚poque des Cape‚tiens directs (Paris, 1911) p. 271.
Boizet, Les Lettres de naturalite p. 30.
‚,
81
History
50

been enjoying the mercantile liberties of his own borough. But
these merchants wanted to expand the horizon of their business
activities. Lettre de bourgeoisie was, therefore, a personalised mer-
cantile institution whereby the recipient obtained the liberties to
carry out the business in most part of the kingdom of France
(`ubicumque in regnis nostris . . . exceptis terris et locis rebellium
nostrarum'82). Du Cange seems to have been aware of this history.
He noted that the essence of being `burgenses regis' was to have the
freedom of movement within the realm: `Burgenses de percursu
iidem qui burgenses regis'.83 This, we believe, is why merchants,
whether foreign or not, could continue to acquire mercantile
liberties `ut burgenses' without causing any legal problems in
France. As the concept of bourgeois du roi ± burgess of no
particular borough ± was ®rmly in place, there was no need to seek
a subterfuge in the vague expression `velut indigena'.
At any rate, the expression `velut indigena regni' quickly fell out
of use in England. Consider, for example, the letters patent issued
to a Lombardian merchant, Benedict Zacharie, in 1365.84 The
document is similar to the letters patent issued to Suderman in
1335 in the sense that it is focused on the exemption from the
higher customs duty. But the mention of `indigena' is now
completely dropped. The text is composed entirely in terms of the
`liberties' of London. Benedict Zacharie is described as a merchant
free-man of London (mercator London. . . . liber homo eiusdem
civitatis') permanently dwelling there with a house, a wife and
children. It is further recited that he is in scot and lot of the city
and pays other dues touching the city just like any other citizens of
London. In consideration thereof, he is exempted from the higher
rate of customs duty as long as he remains a citizen of London.
The logic is that he should not pay more than what other citizens
of London pay: `quod plus quam alii cives dicte civitatis indigene

From the lettre de bourgeoisie issued to Jacques Barthelemy of Florence (1325).
‚‚
82

Quoted from Boizet, `Les lettres de naturalite', p. 30. The same business need

83

was met in England in a different way. In 1275, for example, the Statute of
Westminster I c. 23 formally ended the system of inter-municipal reprisals
against English merchants in England. See The charters of the borough of
Cambridge, ed., F. W. Maitland and M. Bateson (Cambridge, 1901) p. xix. As a
result, there never developed the concept of `burgenses regis' in England (except
for occasional references to `mercator noster').
Calendar of patent rolls, 1364±1367, p. 103. The Latin text is printed in
84

Beardwood, `Mercantile antecedents', pp. 74±5.
Foreign merchants 51

pro custumis mercandisarum et aliorum bonorum suorum nobis
solvunt solvere non teneantur'. There is nothing new about this
argument. Already in 1252, Deutayutus Willelmi was promised
that he would not be tallaged any more than other citizens of
London. In all these cases, the question has always been about the
liberties of a city, and the most important division was between
those who had these liberties and those who did not. Allegiance to
the king, ethnic identity, alien or subject status had no role to play
in this legal approach.85
Our argument may be summarised as follows. The remarkable
change of business strategy for intra-European long-distance trade
in the mid-thirteenth century required many individual foreign
merchants to settle down in English cities. The charters we have
examined show how these foreigners, now ®nding themselves in
the position of permanent residents of a city, coped with various
problem situations arising in connection with their settlement and
trade in the restrictive urban legal environment. From the begin-
ning to the end, the most important concept was `liberties' of a
city; and the most important legal distinction was between `liberi'
(who had liberties) and `serui' (who did not have them). It would,
of course, be wrong to imagine that the contemporaries could not
tell the difference between foreign and English merchants. More-
over, there is some likelihood that this difference may have
resulted in dissimilar legal treatments. For example, English
merchants of a city who went to another city in England on
business did not have to go to a host or leave the city after the
forty-day period as foreign merchants had to. As these visiting
English merchants were no doubt unenfranchised outsiders of the
city they were visiting, like any foreign merchants, the absence of
the lodging restriction applicable to them may suggest that some
legal distinction was being made between English visiting mer-
chants and foreign visiting merchants.86 But this does not under-

For more examples indicating that the exemption from the higher rate of
85

customs duty was `propter libertatem civitatis', see Beardwood, Alien merchants,
p. 69.
Professor Terence Lloyd kindly pointed this out to me. I believe, however, that
86

one must not rule out the possibility that the Statute of Westminster I c. 23,
though it was mainly about the cessation of inter-municipal reprisals, might
have been understood in a broader manner to cover the question of sojourn and
lodging as well. If that was the case, the differential legal treatment between the
visiting English merchants and foreign merchants can be satisfactorily explained
History
52

mine our conclusion that the legal consequences stemming from
the division between Englishmen and foreigners were implicit, ill-
de®ned and unsystematic. No attempt was made to explain or
justify the differential treatment other than by the immediate
obviousness of the perceived difference. The difference was not
objecti®ed; it was not expressed in an explicit and coherent
argument. We must wait until the discriminatory legal treatment
of foreigners is backed by a consistent and explicit argument
before concluding that the law of alien status has begun.
We do not propose to take issue with those who wish to see the
`English nation' taking shape in the collective imagination of
medieval London merchants. Nor does it matter to us whether the
fourteenth-century customs collectors began to realise their true
identity as the natural-born subjects of the English king. Whether
or not that was the case, our point is simply that the basic
framework of legal analysis did not show any sign of departure
from the summa diuisio personarum between liberi and serui.



A NEW APPROACH

What separates the letters patent issued in the reign of Richard II
± especially after the 1380s, when Canon lawyers dominated the
Chancery staff87 ± from the ones we have so far examined de®es all
attempts at a rational explanation. Alice Beardwood has noted that
the letters patent issued in the reign of Richard II were consider-
ably different from the earlier ones. But her studies were based on
the assumption that the English law of alien status began with the
loss of Normandy and that it was already well in place by the late
thirteenth century. Therefore, her aim was not to investigate the
beginning of the law of alien status itself, but to trace the
beginning of denization ± an institution which she assumed to

in terms of the `liberties' of a city. No reference to ethnicity or allegiance would
be necessary then. It is also possible that the absence of the lodging restriction
applicable to the visiting English merchants was simply due to the fact that it
was unusual for English merchants to stay in another English town for such a
long time.
John H. Baker, An introduction to English legal history, p. 119. See also A. L.
87

Brown, The early history of the clerkship of the Council (Glasgow, 1969) who
observes that the records of the King's Council were `dramatically transformed'
(p. 1) in the reign of Richard II.
Foreign merchants 53

have appeared after the law of alien status had been well estab-
lished. In 1911 William Shaw had undertaken a study with the
same assumptions and aim, and suggested that the settled form for
the letters of denization ®rst appeared at the beginning of the
®fteenth century.88 Alice Beardwood merely attempted to argue
that the date proposed by Shaw should be moved back by a
quarter of a century. Before Alice Beardwood's article appeared in
1964, Clive Parry had also taken issue with Shaw's article and
suggested that the mid-fourteenth-century letters patent granting
the liberties of a city should all be regarded as `forerunners' of
later letters of denization. Philippe Dollinger, as I pointed out
earlier, went even further and claimed that the ®rst instance of
denization in England began to appear as early as 1309. We have
already discussed the inadequacy of these arguments.89 I believe
that the letters patent issued to foreign merchants from the 1380s
onwards must be analysed from a fresh perspective. They may be
able to show how the argument for systematic legal discrimination
against alien merchants was introduced for the ®rst time. We may
be able to see that its introduction took the form of a rupture, a
sudden and complete departure from the existing pattern of legal
argument.
Among a number of letters patent issued during this period, I
choose ± mainly for ease of reference ± to discuss the one issued to
John Swart (1397).90 The focus of John Swart's letters patent was
that he was to be treated just as one of the king's liege-men: `ipse
decetero tractetur et in omnibus teneatur sicut unus de veris et
®delibus ligeis nostris'. Of course, this passage alone will not


Letters of denization and acts of naturalization for aliens in England and Ireland
88

1603±1700, ed. William A. Shaw (Lymington, 1911) p. iii.
Parry, History of naturalization, pp. 24±5. Beardwood, `Mercantile antecedents',
89

passim. See also Beardwood, Alien merchants, p. 65. Dollinger, La Hanse,
pp. 77±8. See note 68 above.
The full Latin text can be found in Beardwood, `Mercantile antecedents', p. 75.
90

Alternatively, see Calendar of patent rolls, 1381±1385, p. 413 (letters patent
issued to Adam Hill in 1384), p. 581 (Henry Kerle, 1385); Calendar of patent
rolls, 1385±1389, p. 53 (John de Hill, 1385); Calendar of patent rolls,
1388±1392, p. 23 (Edmond Arnaud, 1389), p. 318 (Henry Shafot, 1390), p. 361
(John Moner, 1390); Calendar of patent rolls, 1391±1396, p. 9 (Bartholomew
Basan of Luca, 1391), p. 285 (Godfrey van Upstall of Brabant, 1393); Calendar
of patent rolls, 1396±1399, p. 84 (John Swart, 1397), p. 176 (John Banam of
France, 1397), p. 463 (Ernest Ruden of Germany, 1399). Most of these entries
have already been mentioned by Parry, History of naturalization, p. 24.
History
54

justify our claim that his letters patent marked an abrupt and
complete departure from the well-established trend. On the
surface, there is little difference between `sicut unus de . . .
®delibus ligeis nostris' and `velut indigena regni et potestatis
nostris' (from Suderman's letters patent of 1324). We need to look
further.
(1) John Swart's letters patent went on to state that he was to be
able to acquire lands, tenements, rents and other possessions
in England, having and holding them permanently for
himself, for his heirs and assignees: `et quod ipse terras et
tenementa redditus et alias possessiones quecumque infra
idem regnum nostrum adquirere possit habenda et tenenda
sibi heredibus et assignatis suis imperpetuum'. Does this
mean that he was unable until then to acquire lands, tene-
ments, etc.? If foreign merchants had all along been able to
acquire lands, tenements, etc., then what was the point of
making such a statement? Should we therefore conclude ± as
most historians have done ± that foreigners were unable to
acquire lands, etc. in England?
The immediate obstacle to such a conclusion would be the
letters patent issued to Benedict Zacharie in 1365. There,
Zacharie was described as having already acquired the status
of a free-man of London when he applied for the letters
patent. If he had not been able to acquire some form of
burgage tenement, we wonder how he acquired a house and
became a free-man of the city. By breathing the air of the city
for over a year? T. H. Lloyd gives numerous examples of
Italian merchants in the late thirteenth and early fourteenth
centuries who were citizens of London and elsewhere.91 Alice
Beardwood put together a list of some seventy-®ve foreign
merchants who were free-men of London and other cities
during 1350±77.92 We also note a passage from Liber custu-
marum, which provides that `merchant strangers good, lawful,
and suf®cient who shall wish to enjoy the franchise of London
shall have the same'.93 How did they all become free-men of a
city, remain in scot and lot, and pay subsidies levied on the

Lloyd, Alien merchants, pp. 174ff.
91

Beardwood, Alien merchants, appendix.
92

Liber custumarum, part 1, pp. 220±1.
93
Foreign merchants 55

immovable if they were unable to acquire lands and tene-
ments? Were they all `exceptional' cases? Had they all secured
`denization' before they became free-men of a city? Or were
burgage tenements given a different legal treatment so that
foreigners could acquire them without restriction? We are able
to offer at least one example which seems to disprove all these
suppositions.
John Adam was an apothecary from Lucca. In 1350, he and
John Pynselegle of Genoa appeared in the Surrey feet of ®nes
as the parties to a transaction of land.94 Two years later, he
appeared in the patent roll. He obtained the letters patent to
be exempt from the higher rate of customs duty applicable to
foreign merchants.95 In other words, he was engaged in a land
transaction before he obtained the exemption from the higher
rate of customs duty ± a measure which is usually regarded as
the evidence of `denization'. The land was probably not a
burgage tenement either. Surrey and Middlesex were the
favourite counties for London merchants. When they felt that
they had become suf®ciently rich, they went there to acquire
land to provide for the future of their wives and children.96
(2) John Swart's letters patent continue to state that he shall be
able to have all kinds of actions, real as well as personal, and to
bring or answer complaints in whatever manner: `et quod ipse
omnimodas acciones tam reales quam personales in quibus-
cumque querelis habere possit ac placitare et responderi modo
quo'. Does this mean that he was unable to bring any lawsuit
until then? Even personal actions such as covenant, debt,
trespass, etc.? What about the procedures of piepowder court
which we have discussed? What about all those provisions


Frank Lewis, Pedes ®nium; or ®nes relating to the county of Surrey (Guildford,
94

1894) p. 121. Ralph Nevill, `Surrey feet of ®nes', 13 Surrey Archaeological
Collection (1897), pp. 139±40.
Calendar of patent rolls, 1350±1354, p. 196 (13 January 1352).
95

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