In the preceding survey I have intentionally omitted any mention of England. Historians of the ordinary type have thought it beneath their dignity to refer to anything so common-place as fairs. The real mainsprings of our commerce seem in fact very generally to have escaped them. The greatest commercial nation of the world has found no historian willing to record the true causes of its greatness. The intrigues of sovereigns, the machinations of ecclesiastics; the trickeries of statesmen and diplomatists, have alone commanded their attention and absorbed their limited energies. The Statute-book, the one great storehouse of our national history, has escaped their observation. I propose to devote a special chapter to the origin and development of fairs in England.

It has been claimed that the Anglo-Saxons founded alike fairs and markets in England. To Alfred the Great the honour is usually assigned. I have no doubt whatever that the Romans first introduced the practice of holding markets and fairs in England. I find very distinct traces of fairs of Roman origin at Helston (Cornwall), at Barnwell (by Cambridge), at Newcastle-upon-Tyne, and at several places along the line of the Roman wall in Northumberland. But assuming that the institutions of the country were largely recast during the Anglo-Saxon period, we may take note of the supposed re-institution of markets and fairs in the ninth century. The tithings held their sittings in their tithing or free-borough once a week, and many people coming thither to have their matters adjudicated upon, brought also their garden produce, corn, beasts, and id genus omne, for sale: because there they could meet one another, and buy and sell as their needs required, hence the commencement of a market weekly. From the Courts just mentioned there lay an appeal, if either plaintiff or defendant were not satisfied, to a County Court, held about Easter and Michaelmas, and over these a bishop and ealderman presided. To this superior Court also came numbers who, at the various intermediate Court-leets were not satisfied. And as large numbers came together, a greater and better opportunity was afforded for selling their wares and goods, corn, beasts, stuffs, linens. “In this we can trace the origin of fairs, which were generally held twice a year, on or about the times mentioned.” This is the dictum of Mr. G. Lambert, F.S.A., in a paper read before the London and Middlesex Archæological Society in 1880, the substance of which is published in the “Antiquary,” ii., pp. 102-3. The fairs here are seen to be purely secular institutions.

It was by the Normans that the fairs of England were moulded into the shape with which we are most familiar. The Norman kings placed themselves largely under the influence of the Papal throne; and it was to the Church, or in the interest of the Church, that nearly all fairs were granted after the Norman Conquest in the eleventh century. It was under John, early in the thirteenth century, that the power of the Church became most pronounced in England, and it is during this reign that most of the existing charters of fairs date.

Trying to harmonize these somewhat conflicting views, it may be supposed that some of our fairs at least were established during the Roman occupation. These were probably largely added to during the Anglo-Saxon period. The Normans admittedly encouraged fairs in the interest of the Church. The fairs of the first and second category were mostly fairs established by prescription, the latter were chiefly established by charter. But in the course of centuries the identity of origin becomes lost. Shepheard, in his “Corporations, Fraternities, and Guilds” (published 1659), says: “It is very usual in these Charters to confirm the old markets and fairs, and to grant new markets and Fairs. Or to change the dayes of the old markets or Fairs. And to grant to the Corporation the Py-powder Court and Incidents and profits of the Fair.” (P. 69.)

I am disposed to believe that many of the early fairs associated with religious observances and ceremonies, were in their inception fairs of prescription only: that is to say, fairs which took their origin in passing events, without any special authority, and that upon later occasions charters were obtained. Bailey says that in ancient times amongst Christians, upon any extraordinary solemnity, particularly the anniversary dedication of a church, tradesmen used to bring and sell their wares even in the churchyards, especially upon the festival of the dedication; as at Westminster, on St. Peter’s Day; at London, on St. Bartholomew’s; at Durham, on St. Cuthbert’s Day, &c.; but riots and disturbances often happening, by reason of the numbers assembled together, privileges were by royal charter granted, for various causes, to particular places, towns, and places of strength, where magistrates presided, to keep the people in order. (“Pop. Antiq.,” Brand.)

Blackstone says:—Fairs and markets, with the tolls belonging to them, can only be set up by virtue of the royal grant, or by long and immemorial usage and prescription, which presupposes such a grant. The limitation of these public resorts to such time and such place as may be most convenient for the neighbourhood forms a part of economics, or domestic polity, which, considering the kingdom as a large family, and the sovereign as the master of it, he clearly has a right to dispose and order as he pleases.

Again, a man may have a right to hold a fair or market, or to keep a boat for the ferrying of passengers; and this either by royal grant or by prescription, from which a royal grant may be presumed to have been at some time conferred. But (unless under an Act of Parliament) no other title than these will suffice; for no fair, market, or ferry can be lawfully set up without license from the Crown. On the other hand, a man may, under such titles, lawfully claim to be lord of a fair or market, though he be not the owner of the soil on which it is held.

The right to take toll is usually (though not necessarily) a part of the privilege; and the tolls of a fair or market are due either in respect of goods sold there (that is, from the seller, not the buyer), or for stallage or pickage, or the like, in respect of stalls or polls fixed in the soil.

I have seen it stated that before the granting of a fair it was customary to issue a writ of ad quod damnum, to inquire whether the grant would be prejudicial to any; but I doubt if the practice was at all general.

If I am entitled to hold a fair or market, and another person sets up a fair or market so near mine that he does me a prejudice, it is a nuisance to the freehold which I have in my market or fair. But in order to make this out to be a nuisance it is necessary (1) That my market or fair be the elder, otherwise the nuisance lies at my own door. (2) That the market be erected within the third part of twenty miles from mine. Sir M. Hale construes the dieta or reasonable day’s journey mentioned by Bracton, to be twenty miles; as, indeed, it is usually understood, not only in our own law, but also in the civil law, from which we probably borrowed it. So that if the new fair or market be not within seven miles of the old one, it is no nuisance; for it is held reasonable that every man should have a market within one-third of a day’s journey from his own home; that the day being divided into three parts, he may spend one part in going, another in returning, and the third in transacting his necessary business there. If such market or fair be on the same day with mine, it is primâ facie a nuisance to mine, and there needs no proof of it, but the law will intend it to be so; but if any other day it may be a nuisance; but of this there must be proof.

The statute of Gloucester (1278) conferred the right of inquiring into the title of all who claimed rights usually exercised by the Crown. Where such rights were questioned, the judicial process of quo warranto was set in motion. One of the principal matters about which inquisition was frequently made under this statute was the right of holding markets and fairs. This right could (as we have seen) only be conferred by royal grant, where prescription could not be pleaded. In many cases it had been assumed by those who had bought land on which fairs had usually been held, and who were then taking tolls from merchants which should in justice have gone to the King. Much curious information was obtained by means of the inquisitions conducted under this Act. This was originally recorded in the Hundred Rolls, and it is made free use of in this work.

It has been asserted that it is not in the King’s power to resume a franchise that has been once granted: so that a fair once authorized by royal grant, is, by the common law of England, good against the King. I have found no case wherein this principle is declared; but there is an instance which points in a contrary direction: for in 1446-7 (25 Hen. VI.) it was enacted “that all grants of franchises, markets, fairs, and other liberties to buy or to sell within the towns of North Wales made to any Welshman before this time, shall be void and of no effect.” Here it was parliament, not the King, revoking the grants. For further legislation regarding Welsh Fairs, see Chapter V., anno 1534.

Brady (in his famous work on “Boroughs”) seemed to be of opinion that every free borough had the privilege of a market and fair, with free right to come and go thereto and therefrom, as of course (p. 33, ed. 1777). But I discover no such inherent right, and where this privilege is sustained it has usually been included in one of its early charters. Certainly the converse is not the case: that is to say, it was in no way customary that fairs should be limited to boroughs free or otherwise. Many were, indeed, granted to small towns, frequently to lords of manors, and commonly to religious houses; and in various cases to individuals.

In the next chapter I shall examine more in detail the regulations upon our statute rolls regarding fairs.