Page:English Historical Review Volume 37.djvu/253

 1922 LAW MERCHANT IN LONDON IN 1292 245 The warden and aldermen constitute the court, 1 and the warden takes counsel with the aldermen on a point of law just as in similar circumstances in the fair court of St. Ives the opinion of the merchants is taken, 2 In the year before the London case was tried the merchants at St. Ives had to determine whether one suspected of making a false claim could refuse to put himself upon a jury when he was prepared to wage his law. Their decision was in accordance with the prevailing doctrine that no one could be compelled to put himself upon a jury, and the man duly waged his law. 3 Here the problem is carried a stage further, for both the parties have asked for a jury but not the same kind of jury, and the court, after deliberation, awards that it must be a jury of merchants, as the plaintiff demands : it will not permit the defendant to put himself upon the country. 4 The reason, we may be sure, is that the court is a court for merchants, and there ' the law merchant must be observed unless both parties openly and directly consent to the common law '. 5 The decision, taken with doubt and hesitation, became the settled rule in such cases : a jury was empanelled from passing merchants engaged in overseas trade who were most likely to have knowledge of the matter in dispute. 6 And if one of the parties refused to put himself upon a jury of merchants he would presumably, like Thomas Lucas, lose his case and remain in prison until he had paid his debt. But we do not know with certainty what would have happened to Thomas Lucas if, instead of putting himself upon the country, he had refused to put himself upon a jury at all and had offered to wage his law. It may have been that the court would have overruled him, for even at St. Ives the 1 The style of the court in, Letter Book A, fo. 96, is ' Coram R. de Sandwico custode Londoniarum, lohanne de Banquell [and two others] Aldremannis '. 2 Below, p. 249; Select Cases on the Law Merchant (Selden Soc.), pp. 44, 90, 91. 3 Ibid., pp. 38, 44, 45; Select Pleas in Manorial Courts (Selden Soc.), p. 136. 4 Below, p. 249. Curiously enough a few years later, in 1299, we find a jury of merchants called the country : Mayor's Court Roll, B, m. 1 : ' Et petunt quod hoc inquiratur per mercafcores priuatos et extraneos de Ciuitate, etc. Et Radulphus similiter, etc. Tdeo summoneatur patria ad diem veneris proximam sequentem.' By agreement, however, the case goes to arbitration. 6 Little Red Book, p. 68 ; cf. ibid. p. 58. 6 Mun. Gildh. Lond. i. 216. Strictly this applies only to the sheriffs' court, whose jurisdiction appears to have been limited to cases where payment, delivery, or account was expressly to be made in London, a limitation possibly due to the Carta Mercatoria : ibid. ii. 206-7. There is no reason to suppose that the procedure in the sheriffs' court was not followed also in the mayor's court in cases tried ' solonc le ley marchaund ' : Ricart's Kal., pp. 95, 101 ; Mun. Gildh. Lond. i. 390. The case recorded in Liber Dunthorn (supra, p. 244, n. 3) went to arbitration, no question of a jury being raised, and therefore affords no guidance. In 1436 we have the direct statement that an alternative method of proof is ' per iuratas mercatorum locum exterum vbi res et contractus huiusmodi supponuntur et predictam ciuitatem interveniencium si partes ad hec consenserint ' : Chanc. Misc. 68/13, no. 395.