One of the great principles regulating commercial transactions in the Middle Ages and enforced by law and custom was publicity1. Bakers2, as we have seen, might not sell bread "before their oven," and to this we may add that fishmongers might not take fish into their shops—they had to expose it for sale outside. The object of such arrangements was to ensure fair dealing3 all round. As Justice is usually figured with a pair of scales, it may be taken for granted that the important question of due weight did not escape the attention of legislators, and it attained4 considerable prominence5 in 31 Edward I. (A.D. 1303), in which year the statute6 De Nova Custuma was promulgated7. This statute provided that in every market town and fair throughout the Kingdom there was to be erected8 in some fixed9 spot the Royal Beam or Balance, and that both vendor10 and purchaser were to view the scale before weighing, to see that it was empty. Prior to being used, the arms of the balance had to be exactly equal, and when the tronator was weighing, he had to remove his hands as soon as they were level. It may be observed that the citizens of London refused to accept the "New Custom," stating that it had always been the custom for all buyers of wares11, whether archbishops, bishops12, earls, barons13, or other persons, to have the draught14 of the beam; but we have learnt by this time that a local custom was not allowed to override15 the law of the land, and thus it is most improbable that this protest, though it led to the issuing of two Royal mandates16, was long persisted in.
But the "New Custom" statute contained another provision—namely, when once a bargain had been ratified17, neither of the contracting parties was to recede18 from it. If they, or either of them, took this course after the weighing process, it would be bringing the Royal Beam into contempt, and such profanation19 could not be contemplated20; but the sacredness of contract had been affirmed by local ordinances21 or customs before this measure was enacted23. A contract was held to be good when God's Penny, or earnest money, had been given and received by the principals. As God's Penny, or that which it symbolized24, was the basis of all business, and business was the life of towns, the custom appears worthy25 of notice in some detail.
The arles, or earnest money, was given to a servant on hiring, as shown by an entry in the Shuttleworth Accounts (printed by the Chetham Society) for September, 1590: "4d., earnest money, was paid unto a cook to serve at the next Assizes." Similarly, in February, 1592: "To John Hay upon earnest to serve for a year as butler and brewster at Smithhills, 4d." Previous entries state that 12d. was paid to John Horebyn "upon erlynges" of a bargain for ditching, and that "3d. was given of erles unto the gardener for his hiring another year."
Mr. Gerald P. Gordon, to whom we are indebted for much valuable information, quotes as an analogous26 instance the gift of the "King's shilling" to a recruit on enlistment27. As regards mercantile transactions he considers that the usage "was not so much a partial or symbolic28 payment of the price as a distinct payment for the seller's forbearance to deliver to somebody else." This view of the case appears to us extremely doubtful, as it would render the contract binding29 on one of the parties only—namely, the buyer; whereas Bracton and "Fleta" aver30 that if the seller default he must pay double the earnest. Mr. Gordon subsequently adduces a Preston decree, that "if a buyer should buy any goods in large or small quantities and give earnest, and he who agreed to sell should rue31 the bargain, he shall pay the double asked. But if the buyer fingers the goods, he must either take them or pay the seller 5s." We infer, therefore, from his evidence alone, that the payment of earnest was essentially32 symbolical33 and served all the purpose of a written contract.
That the act was regarded as expressive34 of mutual35 understanding is shown by a Northampton ordinance22 of about the year 1260: "That if anyone put a penny or any merchandise before the seller be agreed to the bargain, he shall forfeit37 the penny to the use of the bailiffs." The importance of the due-fulfilment of the contract was recognized by the imposition of a penalty on anyone who delivered the earnest and afterwards declined to make good the bargain. At Waterford about 1300 it was enacted that "whoever gives God's silver and repents38, be he who he may, shall pay 10s."; and at Cork39 in 1614 an ordinance was passed, disfranchising the defaulter of his councillorship and freedom and compelling him to pay a fine of ￡20.
In the early part of the sixteenth century God's Penny was paid at Waterford on ships' freights; and at Youghal, in 1611, it was paid into court for the right of buying wines on board ship. As may have been noticed in previous examples, the arles did not necessarily consist of a penny. An ordinance of Berwick of the year 1249 declared: "If anyone buy herring or other aforesaid goods and give God's penny or other silver in earnest, he shall pay the merchant from whom he bought the said goods according to the bargain made." But a penny sufficed. Noyes, the Attorney-General of Charles I., is emphatic40 on this point. "If," he says in his "Maxims," "the bargain be that you shall give me two pounds for my horse, and you do give me one penny in earnest, which I do accept, this is a perfect bargain." The impression left upon one's mind is that the most important contracts as well as the most trifling41 dealings were settled by the exchange of God's Penny or some equivalent ceremony.
Now, it is evident on the face of it that the transactions must have taken place in the presence of witnesses; otherwise a man who had made an awkward bargain would have found it easy to escape from his dilemma42 by denying that he had either given or received the penny. In early times, before writing became a common accomplishment43, and when, as now, men might be eager to clinch44 a bargain without loss of time, it was desirable in the interests of common honesty that such agreements should be made in the light of day and in the face of the world. This custom appears to have continued to a late date. Thus, if O'Keeffe the dramatist may be believed, there was in the centre of Limerick Exchange a pillar with a circular plate of copper45, about three feet in diameter, called "the nail," on which the earnest of all Stock Exchange bargains had to be paid. At Bristol there are said to have been four pillars called "the nails" in front of the Exchange, the purpose being the same; and similarly, at Liverpool, bargains were completed on a plate of copper, also called "the nail," and standing36 in front of the Exchange. It is probable, however, as Mr. Gordon observes, that, the phrase "payment on the nail" did not originate from circumstances like these, but was an adaptation of the Latin super unguem or the French sur l'ongle, by which is meant "paying down into a man's hand." It might thus stand for a bargain the opposite of that of which God's Penny was the usual symbol. It appears to have been the custom at Ipswich in 1291 for traders not to make writings or tallies46 if two witnesses were in attendance to prove that the undertaking47 was to pay on a near day ou freschement sur le ungle. The notion of immediate48 payment is still conveyed by the expression, and would cover the entire amount, not merely God's Penny. However, that payment was undoubtedly49 made "on the nail;" hence some confusion may have arisen, especially where plates and pillars were provided for the deposit of earnest money.
In all this there is much to remind us of the Roman mancipatio, a method of sale which demanded the presence of five witnesses, and in which the buyer took possession of his new purchase by holding in his hand a bronze ingot and repeating the formula: "This man [i.e., a slave] I claim as belonging to me by right quiritary; and be he [or he is] purchased to me by this ingot and this scale of bronze [i.e., that in which the purchase money had been weighed out]."
We have expressed the opinion that the payment of God's Penny was a symbolical act, and this opinion is supported by the fact that there were in medi?val England hand-clasp bargains. Marbeck, a musician and theologian of the sixteenth century, remarks: "As ye see: after all bargaines there is a signe thereof made, eyther clapping of hands or giving earnest." Among the provisions of the Grimsby charter of 1259 is one to the effect that only buyers of the said town might make bargains by hand-clasp for herring or other fish or for corn. To this was added that hand-clasp bargains were to be valid50, unless the merchandise, which was the subject of such a bargain, should be inferior to that agreed upon—a question which has to be determined51 by men worthy of credit. In Shakespeare's "Henry V." we meet with the saying: "Give me your answer, i' faith, do; and so clasp hands and a bargain; how say you, lady?" This recalls that the joining of hands in the marriage ceremony is in the highest degree symbolical; and it is, of course, the common token of faith in friendship. Judging by these parallels, the payment of God's Penny was not less symbolical than its equivalent, the clapping or clasping of hands.
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1
publicity
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| n.众所周知，闻名；宣传，广告 | |
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2
bakers
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| n.面包师( baker的名词复数 )；面包店；面包店店主；十三 | |
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dealing
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| n.经商方法，待人态度 | |
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attained
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| （通常经过努力）实现( attain的过去式和过去分词 )； 达到； 获得； 达到（某年龄、水平、状况） | |
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prominence
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| n.突出；显著；杰出；重要 | |
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statute
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| n.成文法，法令，法规；章程，规则，条例 | |
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7
promulgated
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| v.宣扬（某事物）( promulgate的过去式和过去分词 )；传播；公布；颁布（法令、新法律等） | |
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8
ERECTED
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| adj. 直立的，竖立的，笔直的 vt. 使 ... 直立，建立 | |
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9
fixed
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| adj.固定的，不变的，准备好的；(计算机)固定的 | |
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10
vendor
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| n.卖主；小贩 | |
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wares
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| n. 货物, 商品 | |
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12
bishops
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| （基督教某些教派管辖大教区的）主教( bishop的名词复数 )； （国际象棋的）象 | |
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13
barons
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| 男爵( baron的名词复数 )； 巨头； 大王； 大亨 | |
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14
draught
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| n.拉，牵引，拖；一网（饮，吸，阵)；顿服药量，通风；v.起草，设计 | |
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15
override
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| vt.不顾，不理睬，否决；压倒，优先于 | |
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16
mandates
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| 托管（mandate的第三人称单数形式） | |
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17
ratified
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| v.批准，签认（合约等）( ratify的过去式和过去分词 ) | |
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18
recede
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| vi.退(去)，渐渐远去；向后倾斜，缩进 | |
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profanation
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| n.亵渎 | |
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20
contemplated
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| adj. 预期的 动词contemplate的过去分词形式 | |
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21
ordinances
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| n.条例，法令( ordinance的名词复数 ) | |
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ordinance
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| n.法令；条令；条例 | |
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23
enacted
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| 制定（法律），通过（法案）( enact的过去式和过去分词 ) | |
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24
symbolized
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| v.象征，作为…的象征( symbolize的过去式和过去分词 ) | |
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25
worthy
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| adj.(of)值得的，配得上的；有价值的 | |
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26
analogous
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| adj.相似的；类似的 | |
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enlistment
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| n.应征入伍，获得，取得 | |
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28
symbolic
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| adj.象征性的，符号的，象征主义的 | |
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29
binding
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| 有约束力的，有效的，应遵守的 | |
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30
aver
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| v.极力声明；断言；确证 | |
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31
rue
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| n.懊悔，芸香，后悔；v.后悔，悲伤，懊悔 | |
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32
essentially
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| adv.本质上，实质上，基本上 | |
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33
symbolical
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| a.象征性的 | |
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34
expressive
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| adj.表现的，表达…的，富于表情的 | |
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35
mutual
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| adj.相互的，彼此的；共同的，共有的 | |
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standing
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| n.持续，地位；adj.永久的，不动的，直立的，不流动的 | |
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forfeit
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| vt.丧失；n.罚金，罚款，没收物 | |
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repents
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| 对（自己的所为）感到懊悔或忏悔( repent的第三人称单数 ) | |
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39
cork
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| n.软木，软木塞 | |
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40
emphatic
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| adj.强调的，着重的；无可置疑的，明显的 | |
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41
trifling
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| adj.微不足道的；没什么价值的 | |
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42
dilemma
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| n.困境，进退两难的局面 | |
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43
accomplishment
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| n.完成，成就，（pl.）造诣，技能 | |
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44
clinch
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| v.敲弯，钉牢；确定；扭住对方 [参]clench | |
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45
copper
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| n.铜；铜币；铜器；adj.铜(制)的；(紫)铜色的 | |
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46
tallies
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| n.账( tally的名词复数 )；符合；（计数的）签；标签v.计算，清点( tally的第三人称单数 )；加标签（或标记）于；（使）符合；（使）吻合 | |
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47
undertaking
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| n.保证，许诺，事业 | |
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48
immediate
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| adj.立即的；直接的，最接近的；紧靠的 | |
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49
undoubtedly
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| adv.确实地，无疑地 | |
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50
valid
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| adj.有确实根据的；有效的；正当的，合法的 | |
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51
determined
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| adj.坚定的；有决心的 | |
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