statute merchant and extinct vogue and countenance and studiously addicted and facile introduction

This final essay of the day will focus on one concept hanging on from the previous essay and then review more briefly several other interesting phrases or words I came across in my reading. I was still a bit confused about the nature of the statute merchant and what it was attempting to do in common law England. Fortunately, I came across an article by Edward Tomlinson, "Security for a Commercial Loan: Historical & International Perspectives," 23 Md J Int L & Trade 77 (1999)," which clarified the rise of the statute merchant which, along with the statute staple, was considered to be a "contract of record" under the common law.

1. Statute Merchant. Legal dictionaries and brief summaries just enumerate the basic provisions of this statute, from 1285, without explaining reasons for it. Tomlinson tells us that one of the significant issues with which the royal common law courts concerned itself in the 12th century were actions for debt. Before the time of Edward I (who began his reign in 1272), a debtor could rather easily evade his responsibility by "waging his law," i.e., gathering a collection of friends who would testify to the fact that he owed no money. But even if a creditor could successfully bring an action for debt, he could not collect against the person or the real property of the debtor. The former had never been allowed in England and the latter was considered to be property of the lord. Therefore, the creditor only had ability to go against the debtor's personal property or, at most, the crops or other profits from his land.

Edward I fundamentally altered this "business of debt collecting." The significant statutes through which change came were the 1283 Statute of Acton Burnett and the 1285 Statute Merchant. The former had a particularly severe preamble to the effect that foreign merchants were now reluctant to do business in England because debtors could easily evade payment. Three significant procedural weapons were authorized by the 1285 law: (1) the system of debtor recognizance, by which mayors were required to enroll debtors' obligations in the borough courts (thus, these debts became contracts of record) which would then be royally enforced; (2) the ability to imprison a debtor in default. (3) If the debtor didn't pay off his debts within three months, creditors received the right to seize the debtor's property, including feudal lands. The tenancy thus created was known as "Creditor's tenancy by statute merchant," and it enabled the creditor to control the debtor's land to satisfy the debt. No longer would there be the need to wait on or wait for a slow-moving sheriff.

These remedies were available through the Statute Merchant only against defaulting merchants, but by the Statute of Westminster in 1285, judgment creditors were also given power to hold one-half of the debtor's land until the debt was satisfied--there was no requirement that creditor or debtor be merchants. In addition, this statute authorized debtor prison for certain classes of people, which later on would be significantly extended. You can just hear the echoes, 720 years later, can't you, about the reasons for passing such laws: it would spur economic development. Threaten debtors with imprisonment, and they will pay their debts, which will lead to more predictable markets, which will bring foreign investment and, the sky is the limit. Well, this is about the limit of my knowledge at this point, but it makes for very interesting reading, I believe.

2. These next three are from the 1630 work of Francis Bacon entitled The Elements of the Common Lawes of England. But I didn't have to go very far until I had to stop and smell the roses, so to speak. In fact, I never got to the first part of this work, the Maxims. For, in the title, he says this: that the Maxims are "explicated for the more facile Introduction of such..." The word facile comes from the Latin word meaning "easy" or, with respect to people, "courteous or pliant." But it also had a negative connotation which grew up over the years, in which it could mean superficial or shallow. But neither of these meanings seems easily to fit here, does it? We might be able to get away with an "easy" introduction, but this isn't probably what Bacon has in mind. Then, we discover in the OED, definition 2, "Of a course of action, a method: Presenting few difficulties" or "Easy to understand or make use of." A "facile introduction" is, as we would say today, "user-friendly." I like Bacon's word better.

3. Then he goes on to say, "[to] such as are studiously addicted to that noble Profession (i.e., law)." The word addicted has a bum rap in English today. An "addict," as we all know, is someone addicted to drugs, but the word "addicted" comes from two Latin words meaning to bound over to or to assign by decree. Thus, some of the first usages of the word "addict" or "addicted" in English reflect this usage. From 1533: "As the Spirit of God is bound to no place, even so is he not addict to any age or person." Or, from a 1549 paraphrase of the Epistle of Titus: "I, Paul, my selfe an addict servant and obeyer... Thomas More could say in 1534, "The kinde of man, that was by synne addicted and adjudged to the devil, as his perpetuall thrall." But once you are clear onthe meaning of addicted as bound over to or delivered to, it is not too distant a journey to get to the word "devoted" or "attached" or "inclined." A 1588 author could speak of destroying "the queen, & all her people addicted to her." From 1597 we have "Whose holy minde so much addicted is on th' world to come." And then, in Twelfth Night, Shakespeare can say, "Being addicted to a melancholy as she is." Now, that isn't so big a leap now to being "addicted to that noble Profession," is it? Bacon writes to those devoted to law.

4. Then, in the first sentence of his Preface, he writes, "I hold every man a debtor to his profession, from the which, as men of course do seeke to receive countenance and profit..." People seek to gain profit from their profession, but what does it mean that they seek "countenance" from their profession? The word "countenance" comes into English via Latin and French, and suggests one's manner of holding oneself, one's behavior, aspect, or bearing. The extension to a person's face is easy, even facile, to understand. Thus, the earliest English usages of the term suggest the notion of a person's behavior. From Malory's Arthur: "Fair syster I have wel aspyed your countenaunce betwixe you and this knyght." But this can't be what is meant here. Then we go down to another definition. Countenance can mean: "patronage; appearance of favor; moral support" or "estimation, credit or repute in the world...position, standing, dignity." These are said to be obsolete usages, but they sound pretty good to me. From 1576: "Your authoritie and countenaunce giveth mee..great incouragement." Shakespeare could say in I Henry IV: "Under whose countenance we steale." Finally, a 19th century appearance of the word is helpful: "To lend no countenance to such adulation. Now we see what Bacon is saying. People not only receive money from their professions; they also gain position or dignity.

I am out of space here, or I would go further in to scroll and scrawl and a sentence from Wigmore's evidence: "In these days of the extinct vogue of private seals...," but I have done enough for now.

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