El sistema financiero a finales de la Edad Media: instrumentos y métodos

Fourth. On occasion, but quite rarely, parties to a credit agreement made use of the manor court in order to register or recognise their agreement through the entering of a formal record or recognisance of the agreement in the court roll; as noted, relative to litigation over failed credit agreements such agreements recorded at the inception of the debt are rare.12

Fifth. There is almost no evidence for the use of sealed documents in the inter-personal debt litigation recorded in the manor court; this would be consistent with the legal view that the manorial court, a private seigneurial court in which compurgation was used as the foundation of most pleading, did not have the jurisdictional authority to try cases involving specialty (i. e. where sealed instruments, such as bonds, were in evidence). There is also the closely related point that cases in which compurgation was employed as the evidential basis implied of necessity that sealed documents were not available as proof, since the latter was a stronger proof and defeated a claim based upon the evidence of oath helpers (according to the legal maxim that ‘specialty bars compurgation).13

Sixth. Much of the litigation recorded in manorial courts could be quite formulaic and laconic; there is clear evidence of a development of process and a general tendency for a more consistent and sophisticated recording of litigation by the end of the thirteenth and the beginning of the fourteenth centuries. While the earliest courts, from the middle decades of the thirteenth century, are far less systematic in their recording of litigation, there is plentiful evidence for a standardisation of terminology by the early fourteenth century.14

Seventh. While inquest jurors were increasingly involved in other forms of action, such as trespass and litigation over land, debt litigation was less frequently tested by inquest jury and, instead, compurgation tended to predominate, surviving as a mode of trial throughout the middle ages in debt and long after it had been superseded by supposedly more modern forms of proof as employed in other forms of action.15

Eight. The general development of litigation within manorial courts in the period c. 1250 to c. 1350 suggests that, rather than creating their own localised forms of action and processes, most manorial courts were, to a greater or lesser extent, developing their law in parallel with developments in the king’s court, in other words at common law. The processes by which this relationship between customary seigneurial courts and common law courts was established and legal practice shared between them remains uncertain but it is reasonable to suppose that practice in the manorial court was influenced by a range of factors including those who moved between central courts and local and private courts. Such people included estate officials, such as stewards, as well as their manorial lords, attorneys and legal advisers and, of course, litigants. Some of the latter were, of course, peasants including villeins or unfree peasants, but they also included, as we shall discuss more fully in a later section of this essay, litigants from beyond the manor, such as merchants and townsmen.

Ninth. Despite, or perhaps in part because of, the previous point it is clear, as Chris Briggs has pointed out, that some manor courts developed legal processes far more fully and effectively than did others. In such instances it seems likely that certain courts within a region, perhaps encouraged by their manorial lord, developed as courts of litigation, and attracted a range of business accordingly, while other courts remained largely free of inter-personal litigation of the kind discussed here.16

Tenth. While a good deal of the litigation, as already noted, is quite often formulaic and quite brief, on occasion individual cases are detailed and include discussion of substantive elements of law. It seems at least probable that on such occasions, individuals, possibly including professional lawyers, with a sophisticated level of legal awareness encouraged the introduction of informed and complex legal argument as part of pleading in some manor courts.17

It is elaboration and further investigation of this last point, in particular, and its implications for our understanding of the nature of credit agreements and indebtedness in the medieval village that will be the main element of the second part of this essay. Together the above points also help to illustrate that law in manorial courts was in a condition of considerable development in the decades either side of 1300 and that it was sufficiently flexible as to be open to an array of potential influences.

EXTERNAL AGENTS AND CREDIT IN THE MANOR COURT

There seems little doubt that a number of individuals other than peasant litigants themselves were involved in the debt litigation recorded in manorial courts. We can explore this in two respects, firstly in terms of third party involvement in litigation, as regards such roles as attorney and legal advisor, as well as those who organised the processes of the court. Secondly, and no less importantly, of course, there is the issue of involvement of non-peasant litigants in debt litigation recorded in the manor court. We deal with each issue in turn.

Third-party involvement in debt litigation recorded in the manor court

The extent to which the law in the manorial court was informed by external agency is a moot point. While there is no doubt that peasant litigants were on occasion capable of generating their own legal argument and engaging in pleading in the manorial court through their own agency,18 it is also clear that pleading was also influenced by third parties, sometimes identified as attorneys, who may conceivably have included professional pleaders. Stewards and other manorial officials also influenced the process of law in the manorial court; while their oversight was not directed wholly or indeed largely at inter-personal litigation but was concentrated upon maintaining their lord’s interest in matters pertaining to, in particular, landholding, land transfer and rent, it is also evident, from occasional entries in the manor court, that stewards helped to direct and, indeed, to encourage inter-personal litigation, points to which we will return below.

In the first instance, it is clear that peasants in the manor court could act as advisers to peasant litigants and help thereby to form the process of law and litigation in the manor court. In such instances, peasant advisers, undoubtedly sometimes referred to as attorneys in manorial court litigation, were often themselves experienced litigants who brought their expertise to the benefit of other villagers, and for financial or other gain.19 Occasional detail in litigation referencing attorneys or other named supporters of litigants suggests that peasant «attorneys» might help their fellow peasant litigant in organising writs and access to other courts; they might also simply appear in the court or, on occasion at a certain stage of a contract (for instance as payer or recipient of goods or money) on behalf of the litigant, essentially as a proxy and not necessarily as someone bringing specialised knowledge or great insight to the case. There is also a marked, though not absolutely consistent, tendency for female litigants to make use of male attorneys.20

It is far from straightforward, without a thorough prosopographical analysis of the relevant corpus of manorial court rolls, to distinguish between peasant «attorneys» and external attorneys whose presence in the court is solely as a professional legal adviser. Where we gain a sense of legal advisors present in debt cases and, as likely, guiding the litigant or handling their case for them, it still remains difficult to identify with any certainty the extent of their role. Take, for instance, a debt case from Horsham St Faith (Norfolk) in May 1316, in which the plaintiff, through his named attorney (William Lauk’), sought recovery of 52 s. owing from the purchase of pigs and other chattels. The defendant agreed that he owed 32 s., but denied owing the additional 20 s., the latter to be subject to an inquest at a later court. We might assume that the attorney led the pleading in this case on behalf of the plaintiff but the bare details of the case do not permit us a closer view.21 At Bottisham in August 1344 a group of thirteenth plaintiffs brought their case against a single defendant through their attorney, Thomas Dykeman. The case suggests a fairly involved legal process; for instance, the sum claimed by the plaintiffs was 39 s. 11 d. ¾, the maximum possible sum and just below the 40 s. limit for the jurisdiction of the manor court.22 Dykeman also appears as a pledge in support of claimants in other, possibly related cases at about the same time; his family name, which can also be found elsewhere in the rolls, suggests that he was local and we should not necessarily think of him as a professional pleader whose presence in the manor court at Bottisham is explicable only in such terms.23 In other instances, it is perhaps the detail, sophistication and frame of reference of the pleading that at least hints at outside agency and the kind of legal expertise which it may have been less easy for a peasant «attorney» to have acquired through their experience as a litigant. Relatively few debt cases recorded in the manor court include details of the pleadings used by the parties in order to construct a case; from time to time, however, we are offered a sense of the details of pleadings. So, for instance, at Longdon (Staffordshire), the attorneys of plaintiffs generated quite complicated and technical pleas, sometimes moving beyond the immediate in order to use a technicality, such as the requisite number of individuals required to permit an adjournment.24

It is also reasonably evident that rather more involved legal argument was brought into pleading by manorial officials, sometimes from within particular jurisdictions and, on occasion, from neighbouring or competing jurisdictions. At Longdon (Staffs.), for instance, bailiffs from neighbouring manors served as attorneys for individual peasant litigants. This appears to have been so in the case of on William le Messager who appears frequently in the Longdon manor court as an attorney, representing more than one litigant, but was also, seemingly, bailiff on a neighbouring manor.25 Furthermore, and albeit rarely, bailiffs from neighbouring manors sometimes came into the manorial court of lords other than their own in order to recover wayward litigants, especially villein defendants and, arguing relevant seigneurial authority, return them and, conceivably the case, to their own jurisdiction.26

Stewards were also very important in facilitating and developing inter-personal litigation in the manor court. As estate officials charged with helping to oversee the running of the estate and its constituent manors, stewards were well-placed to direct and adjust matters of day-to-day management. They also responded to the dictates of their lord and were tasked with implementing their policy changes; as Razi and Smith suggest, the surge in business activity, including the introduction of inter-personal litigation in manorial courts from the third quarter of the thirteenth century may have a great deal to do with stewards acting upon seigneurial initiatives intended to make their courts effective and remunerative centres for inter-personal litigation.27 On occasion the intervention of stewards could be deeply unwelcome and cause significant and damaging change to the management of fora such as the manor courts.28 In other instances, stewards undoubtedly sought to ensure that manorial courts functioned effectively as courts capable of providing a secure and effective jurisdiction capable of meeting the demands of potential litigants and, no doubt especially, wealthy plaintiffs capable of judging their court against the standard of other courts, including borough, county and central courts. That they were capable of doing so is explained in no small part by their own experience in a variety of legal fora and jurisdictional contexts. Paul Brand has described the career of an early fourteenth-century steward, Henry Tyrell of Mannington (Norfolk), who combined his experience in a variety of offices with his own considerable activity as a litigant in informing his work as an estate steward. Tyrell, a member of the minor local gentry, was immersed in his own litigation but also used that to the advantage of others, including the free and unfree tenants who, along with his employer, his lord, he also advised as part of his role in managing his lord’s estate.29 It is clear that stewards sometimes presided in court and litigants sought legal and, more particularly, processual advice from them on occasion. At Ruyton (Shropshire), for instance, the defendant requested that the steward allow him to withdraw before pleading in order to take legal advice, something to which the steward, contrary to the wishes of the court and in a manner that on this occasion actually proved fatal to the defence, agreed.30 All of the above discussion in this section can be taken to suggest that in the manor court, or at least in those manor courts in which inter-personal litigation was especially prevalent, there was both an identified process for overseeing litigation and for allowing litigants, and especially plaintiffs, to bring their cases to court with reasonable confidence that the court would offer an effective forum for a satisfactory resolution of their dispute. It is important to note in this respect, therefore, that the court was, especially in the case of inter-personal litigation, open to the influence not only of the lord and his officials but also of the litigants and potential litigants themselves. If, from the point of view of the lord, his court was to be an attractive venue in which wealthy litigants would sue and, thereby, enhance his seigneurial revenue through the fines, amercements and the associated business that came into his court as a result it needed to be a suitable and trustworthy forum for those litigants.

Non-peasant litigants in debt cases in the manor court

Undoubtedly, a great deal of lending and borrowing at the level of the medieval village took place between villagers and a high proportion of such agreement did not end up as litigation in manorial or other courts. Chris Briggs’ work has illustrated the evident tendency for the majority of credit agreements which led to debt litigation in the manorial court to be small in scale. Briggs’ close investigation of debt cases on five separate manors in the fourteenth century indicates that most debts were less than 5 s. and that, on some manors at least, very small debts which must chiefly have been intended to support consumption rather than investment predominated.31

Despite the evidence of large numbers of small debts, it is also strongly evident that a great deal of the capital which was contested in litigation was concentrated in a relatively small number of cases. As Briggs also notes, while even some of the relatively small debts involved quite large sums, if considered in terms of day-to-day expenditures, there were also other debt cases recorded in the manor court cases which involved really quite substantial sums.32 While the typical, but not always consistently applied, limit of 40 s. inevitably contained the extent of debts recorded in the manor court, even debts of 20 s. or more involved, by most contemporary standards, large sums of money.33

While the number of debt cases involving large sums of money was certainly less than the number of cases in which smaller sums were pursued, it remains the case that, on more than one level, the debt cases in which large sums were contested, were very important. In a previous paper, it has been shown that a simple count of proportions of cases relative to the amount of the debt risks under-representing the significance of cases involving large debts.34 The present author has looked at the range of available published data on debt litigation in English manorial courts and by, for instance, examining the proportion of cases identified by Briggs for the Cambridgeshire manors of Oakington, Dry Drayton and Cottenham in the later thirteenth and early fourteenth centuries has shown that while the proportion of debts worth 5 s. or less on these manors was in excess of 70 per cent, the total value of debts worth 5 s. or less was, by estimation, less than 15 per cent. By contrast, debts to the individual value of 10 s. or more accounted for upwards of 70 per cent of the total value loaned on the three manors while their number accounted for just 17.3 per cent.35 In the first instance, but a point that will be explored less in this paper than elsewhere, the recovery of the larger debts was important in terms of its significance for the extent of available capital operating within particular locales. At Hinderclay (Suffolk) in the second decade of the fourteenth century, for instance, just under 11.5 per cent of all debt cases accounted for a little over 45 per cent of the total capital in litigation in that decade, in other words there was a small number of very large (in terms of the size of debt) cases but that these were highly significant in terms of contested capital.36 In what follows we can to explore in a little more detail cases involving relatively large sums of capital of this kind and consider the implications of such cases for the wider context of credit extension and debt litigation in the medieval village in the later thirteenth and early fourteenth century.

As already discussed, individual litigants, estate officials and attorneys, could have significant influence upon the nature and process of litigation conducted in the manor court, especially during a period when the manorial court as a jurisdictional entity was evolving and at the same time as were common law courts. Just as in other periods, when lords were prepared to respond to external influence and to adjust their modes of dealing accordingly, so we can see lords in the later thirteenth and early fourteenth century allowing their courts to be moulded to suit the needs to litigants and, especially, wealthy and relatively powerful litigants capable of dealing in relatively large sums of money. We can test this proposition further here by consider the introduction of external forms of dealing at law into the manor court.

Much that passed as litigation in the manor courts of the later thirteenth and early fourteenth centuries responded to patterns and developments also evident in common law courts of the same period. So, for instance, the appearance and development of discrete forms of action, insistence on correct pleading, rules as to the use of particular proofs and so on, responded to and reflected, sometimes with a degree of local colour, conventions and forms also evident in the emergent case law in central common law courts. There remains much potential work to be done in exploring the chronology as well as the direction of flow in such relationships; the assumption is, and it is implicit in much that is written here, that legal development commenced in central courts and was subsequently adopted, sometimes in suitably modified form, in local and seignueurial courts; while this is most likely to have been the case, it is also possible to suggest movement in the opposite direction, an emerging process of law finding favour in local courts before transferring to more central courts. In the final part of this discussion, as an example of transmission of law into the manor court, we can consider the ways in which external plaintiffs and creditors often brought their own expectations of law and process into the manor court and, most especially, sought to apply merchant law, lex mercatoria, within the private jurisdiction of the seigneury.

What was lex mercatoria c. 1300? As is reasonably well known, merchant law was a growing corpus of laws and conventions a main thrust of which was to permit dealing between merchants to be conducted both with relative speed and a good degree of confidence. As James Davis writes, lex mercatoria was «important in defining sales, the procedures of debt litigation and the nature of contractual obligations».37 One important feature of the developing merchant law in this period was the ambition to prevent debtor-defendants from slowing recovery and especially by using compurgation in order to deny their obligation. The principle behind this was clearly that plaintiff-creditors needed the facility to recover obligations efficiently, the beneficial consequence of which was that capital was returned with relative speed to them and thereby into commerce. In order, for instance, to avoid a lengthy process, a creditor seeking repayment under merchant law could use a recognised formula in his pleading in order to effect a speedy recovery. Thus, later thirteenth and early fourteenth-century custumals from Ipswich (Suffolk) and Norwich (Norfolk) state clearly the obligation upon defendant-debtors to dispense with a defence founded upon compurgation should the plaintiff claim that the original contract had been agreed in a market in the presence of witnesses.38 These kinds of convention were on occasion carried into the manor court.

In certain instances, it is quite clear that the plaintiff is an external agent, familiar with merchant law and able to apply it in the manor court. So, for instance, at Walsham le Willows in 1321 the defendant was pursued in the manor court there on account of a contract established in 1319 at Ipswich through which the defendant was to render regular accounts relating to the money lent, and this was to be done according to merchant law and a written agreement between the parties. The defendant acknowledged the debt without defence.39 In three separate cases at Great Barton in 1316 the same plaintiff, Stephen de Haukedon pursued three different individuals for the recovery of large sums of grain, the first of which was proved by sealed tally; in only one of the three cases, the last and the most poorly preserved, did the defendant seek to defend himself, possibly again suggesting that de Haukedon was a wealthy external agent able to bring the force of merchant law into the manor court.40 More explicitly, a defendant at Horsham St Faith (Norfolk) was distrained to answer a claim that he had bought iron at Norwich, the sum for which was to repaid at the local market (nundine) at Horsham; as the defendant had failed to pay the debt, the plaintiff sought recovery by offering to show his tally accordingly to law merchant. The defendant, faced with this proof, acknowledged the debt.41 Such instances suggest that, within the manor court, the force of merchant law was clearly recognised and that defences, notably compurgation, were recognised to be weak or inadmissible defences in certain compelling circumstances.

This kind of external influence upon the development of law and, over time, the kinds of tactical and procedural approaches developed in the manor court requires further investigation. While there is plentiful evidence that defendants remained committed to compurgation as an effective defence in most instances, they clearly needed to be wary of its limits especially when confronted by a combination of proof in the form of tally or other written instrument, as well as witness proof including attesting a prior contract entered into at a market or market town. Further research in this area might, for instance, consider the possibility that peasant litigants introduced such devices into their own pleading, not the least of which would be reference to contracts established within a market location. It is also worth noting that, in so far as can be gleaned to date from an examination of debt litigation recorded in court rolls from western and eastern England in the later thirteenth and early fourteenth centuries, references to merchant law are relatively common in the eastern England sample but far less evident in western England. It is likely that a combination of factors, including proximity to a number of significant commercial centres in which merchant law was, as we have seen in the above references to its codification at Norwich and Ipswich, frequently employed and a commercialised regional economy in which economic interaction between towns and their hinterlands were commonplace, help explain the greater tendency for merchant law to reach into manorial courts in eastern England. Such regional features of legal development add to our sense of a developing law in manorial courts which, while in many respects strikingly uniform, also displays nuance and subtle distinctions.42