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.