Public and private houses as spaces of law
There are several other locations named in the sources which were obviously places that functioned as drinking houses on a permanent basis. The houses which had actual names, presumably accompanying a sign outside, are the most recognizable of these, as is the wine cellar, which was run by the town council.
Some of these places only figure once or twice and some taverns known from other sources do not figure in the Liber Testium at all.64 But the question remains what the exact status was of the other locations used as legal spaces in the Liber Testium. Houses which also appear quite regularly in this register, like that of Jacob van Zutphen, were most likely also permanently in use as drinking establishments. In many cases, however, a house only appears once or twice, and it may be that it only occasionally opened its doors to guests or that the owners hosted a group of people for a specific legal transaction in which they may have been involved themselves.In 1484 a few examples were recorded which took place in houses that do not appear elsewhere in the sources. Half a ship was sold in Herman Dyrcksz’s house about two years before, according to the testimony of four men, one of whom was the landlord of the In den Raven.65 In Evert Hermansz’s house a sale had been agreed of 200 raisins between Willem Geertsz and Ysebrant Baers.66 In this case the testimony was made by Evert Hermansz himself and two others. On 26 October five men testified that they had been present in Femme, Tielman van Hoorn’s widow’s house when she rendered account of certain amounts of money to her late husband’s son.67
There is no evidence in any of these three cases that the houses were functioning as drinking establishments, nor do these houses appear elsewhere as such. The entries do not clarify the status of the witnesses in the legal transactions.
In all three it just states that they had been present: �dat sie dair over ende an gewest hebben’ or a variation of that wording. There is no mention of a gelage or of wijncoep, both of which are associated with drinking, though the latter not necessarily in a tavern as we will see below. It may be, therefore, that in these cases a group of people had gathered in a private home for the specific purpose of witnessing a legal agreement. Or it may be that the record is imprecise. It does seem especially likely in the last of the three cases that the gathering took place in a domestic dwelling, as its owner was one of the parties in the agreement. Similarly, in 1491 a group of people was gathered in the house of a tradeswoman to witness the sale of 19 saddles.68 The details of the wijncoep are phrased in such a way that it appears that beer was brought along or would be consumed elsewhere rather than that it was available at the woman’s house. Hers was therefore probably rather a workshop than a tavern.On 23 April 1487, on the other hand, three men who had sat �in den gelage’ at the house of one of the three, Jacob Lambersz Scroer, testified that a fourth had been there with them when another had come in.69 In this case only a conversation was recorded. The house of Jacob Lambersz, whose name �Scroer’ probably indicates that he was a tailor, does not appear again, but it is clear that in this case the location did, at least temporarily, function as a drinking venue. In 1491, Wolter Jansz testified that he came into Jan Daemsz’s house and was called to the �gelach’ of Daemsz and Berent Wolt who were negotiating a deal on a certain amount of oats. Warner Topken delivered a similar testimony.70 In this case the two men appeared to have come to the premises for a drink and were subsequently called upon to witness the agreement. Whether Daemsz’s house usually functioned as a tavern is unclear, but it appears to have done on this occasion.
Similarly, in London, Mc Sheffrey also notes examples of people being pulled in to witness a marriage contract when they happened to walk by.71A year later Stijne Alberts and Johan Berentsz testified that they had been present in Lubbert Steenmesler’s house about a month before, when Geert Westerwolt had sold Hendrik Evertsz a horse which would be paid off in terms. The sale was �bewijncoepet’. The entry does not specify whether the two witnesses were the wijncoepsluden or not. So how should we interpret this transaction? How are these five people, one of them a woman, connected? Are they in a private house for the sole purpose of witnessing a sale, in a house which is temporarily used as a drinking venue, or in a permanent tavern? Did Alberts and Berentsz just happen to witness the sale or did they have a more formal role? It is difficult to answer these questions if we do not know the meaning of any omissions in the record. Of course, another question that can be asked is whether it matters just where the transaction was conducted as long as it was formally witnessed and confirmed with a drink. The protection and peace offered by the house as a legal space was also a factor.
Like in other towns and localities in the Low Countries and northern Germany, there did not exist a strict division between public and private houses in Kampen in the fifteenth century when it came to hospitality. Anyone might be allowed to tap beer or wine in their own house, though regulations differed from town to town and region to region. So a person might buy up a small amount of beer, open up their house to customers for a short space of time for some additional income and until the beer was finished, and otherwise ply whatever trade they normally plied.72 In Kampen there were regulations in place that allowed for only one type of beer or wine to be sold at premises at any one time and for anyone to run only a single establishment.73 The serving of wine was also restricted, in that the license belonged to the town (�onse stat’) for part of the time and to the community (�de ghemeente’) for the rest of the year.74 When the town had it, wine was tapped in the wine cellar and no one else was allowed to serve it on pain of a fine.
When the community took over, any offences occurring in the houses where wine was being served would be penalised as if they had happened in the wine cellar. As the town’s drinking house, higher fines were handed out for any misdeeds conducted in the cellar. These by-laws confirm that anyone could serve beer or wine from their house in Kampen and that some houses would not have functioned as drinking venues throughout the year.Peyer argues that there may have been a difference in status of houses between public and private. A public home had to be open to everyone, whereas in a private dwelling the owner could refuse entry to a person. A guest would also enjoy more protection in a private house, for example, against punishment or debt collection. But as there could be many forms between private and public houses in this period, it is sometimes difficult to make an exact distinction.75 The surest sign of a drinking establishment, according to Peyer, is just that: a physical sign and a name to go with it. The only evidence in Kampen as to any potential official opinion on public versus private is that in 1483, it was laid down in a by-law that no one could be refused beer by any tappers before 10 o’clock at night.76 This suggests that a house was considered public when beer was being tapped there. Tlusty agrees that a tavern stopped being public after curfew.77 As such, it was not so much the space that was inherently public, but the activity that was conducted somewhere and the people it involved.
The same can be said about the transaction of business or making of an agreement. These activities, conducted in the presence of gathered witnesses or mediators, were public ceremonies, irrespective of the space where they occurred. The performative ritual that accompanied the transaction not only bound the parties and their witnesses, but it also functioned as a public confirmation. If it was performed in accordance with a social script, the contract was considered legal and binding and accepted by the court.78 The wijncoep was also conducted with the expectation by the participants that it would be considered valid.
As Reyerson has concluded, a business deal required a belief that the process in which it came about was legitimate and that its execution could be enforced.79 In Aberdeen, agreements were perhaps not necessarily accompanied by a drink, but there the ritual of writing performed by a notary functioned as the public act. The presence of an official in the guise of the notary and the act of writing differentiate this ritual from that in Kampen, but it would be anachronistic to consider the resulting contract to be comparable to modern notarial instruments. As Hepburn and Small confirm elsewhere in this volume, documents could subsequently be utilised in court rituals which underlined their ceremonial power.80 As legal instruments, the contracts had the same authority in their respective jurisdictions. Indeed, in both towns oral and written contracts existed, though the evidence considered here may suggest differently. There is no evidence that Kampen officials preferred written to oral contracts. In fact, a sampling reveals that the practice of wijncoep was just as strong in the 1520s as it was in the 1480s and 1490s despite the fact that many other aspects of the town’s administration started to be recorded in writing in the second half of the fifteenth century. In Aberdeen written contracts may have been more common in the last decades of the fifteenth century, but there, too, symbolic acts like a transfer of the God’s penny continued to exist.81With regard to whether the status of the location mattered for the legality of the transactions that were conducted there, the answer is probably no. There is no evidence in the sources from Kampen that a named public house was considered a legal space of higher or lower status than a private house. In none of the cases is a transaction claimed to be invalid because of the unsuitability of the location. Neither is there any indication that business conducted in a residence was seen as insufficiently public and therefore suspect.82 Of course, the protection of the Hausvater as a figure of authority was the same in all houses.
A permanent drinking house was a more logical place to conduct these transactions because that is where witnesses were naturally available, as were the ingredients for the contract drink. But witnesses could also be gathered in a private house and drinks could be acquired. As it is not always possible to establish whether a transaction took place in a tavern or a private home, it is difficult to say whether overall more business was conducted in drinking houses or not. In Aberdeen, too, there is no indication that the sites which may have had a historical or religious meaning were considered more suitable locations for legal transactions than taverns or domestic spaces. McSheffrey has noted that, with regard to marriage contracts in late medieval London, certain rooms in a house appeared to be preferred to others.83 There is no sign of this in Kampen and Aberdeen, though in the latter there are one or two references to chambers within a house. It is likely, then, that this further aspect of space was not considered to be relevant.With regard to houses, it is true that a transaction in a tavern could get more publicity than that in a private home, as there could be additional onlookers who did not act as formal witnesses. In 1484, for example, four men testified about a case of reconciliation which had taken place in the village of Zalk two years earlier. Two of them had been �moetsoenslude’, while the other two had been bystanders (�ommestanders’).84 But for the legal validity of the transaction, this does not appear to have made any difference. One does wonder whether the testimony of the formal witnesses was considered more valuable in court or not. In the majority of entries, it is not specified what the status of the witnesses was. It is likely that most of them had engaged in the contract drink and that the record is simply imprecise, but we cannot be certain.