The vast majority of legal sources record business that was dealt with in �official’ spaces such as town halls, court houses and the chambers of clerks and notaries.
Courts could also be held in spaces where large groups of people could gather, such as squares or churches. But legal culture was not confined to the official forum of a law court or to official spaces.
Many legal transactions were conducted in other places, such as houses, inns and taverns, but we know much less about them. This is because many of these transactions remained unrecorded. Those that were recorded, either because they took place in the presence of officials or because they subsequently became the subject of a conflict, provide us with vital information on how the law operated outwith the context of official legal fora like the courthouse. Why did court officials accept the legal validity of any business that was transacted without their interference or supervision? An important piece of the puzzle in this respect is the ritual associated with �wijncoep’ (German Weinkauf, translated by Tlusty as �contract drink’1). This ritual was conducted in some regions of northern Europe in the later middle ages in both domestic dwellings and drinking houses to bind parties and their witnesses together in an obligation.The study of taverns and inns as spaces of hospitality and sociability has been a popular topic in recent times.2 The fact that public houses also played a significant role in local trade receives regular mention, but is rarely the subject of in-depth research.3 The use of pubs as �spaces of law’, that is to say as locations where transactions were conducted which were legally valid and recognised, is noted regularly, but without going into any detail or offering any examples.4 The role of private homes for the same purpose is even less known.5 This chapter will focus on these �alternative’ legal spaces and how they were used to transact legal business.
It will also determine how their owners facilitated these transactions. Finally, it will analyse the role of the physical space and of any associated rituals in accepting these contracts by both legal officials and the general public.As will become clear in what follows, there did not exist a strict division between public and private houses in the later middle ages in northern Europe.6 Domestic dwellings could provide hospitality for part of the year or when required. This ambiguity is confirmed by contemporary terminology, which rarely provides a clear picture of the role or status of a specific space. In both the Low Countries and in Scotland, for example, places offering hospitality are often referred to simply as �houses’ and only rarely as taverns or inns (�herberg’ in Dutch). This does not, however, mean that we cannot distinguish taverns from domestic dwellings at all, just that there existed many forms between fully public and fully private houses.7 The question of the distinction between public and private in the middle ages and early modern period has been investigated by a number of scholars in recent years. They have mostly argued against the image painted by Georges Duby in the History of Private Life of a clearly distinct private sphere within the interior of a home in the middle ages.8 It was the presence of people or, more specifically, people outside the family unit which made an occurrence public. As the examples studied here confirm, the distinction between public and private (and shades in between) is not so much spatial as situational.9
The main focus of this chapter is the town of Kampen. Kampen was one of the main trading towns in the eastern Netherlands from the thirteenth to sixteenth centuries. Situated near the mouth of the IJssel River, it had access to the North Sea via the Zuiderzee. The IJssel moreover provided an important waterway with the Rhineland and especially Cologne. The town was involved with the Hanse for much of the later middle ages.
As a trading and transhipment point, Kampen played host to merchants and goods from all over northern Europe and public houses played an important role in providing spaces to conduct business. Kampen’s Liber Testium records many transactions conducted in houses of varying kind in the last two decades of the fifteenth century.10 But Kampen was by no means the only town in northern Europe where legal business was conducted in such spaces. In fact, such practices are noted in the Netherlands, Germany, Switzerland, Scandinavia and England.11 In the context of this volume and its focus on Scotland and its neighbours, and for comparative purposes, it is perhaps useful to start with briefly setting out the circumstances in Aberdeen in the later fifteenth century.There is very little evidence in the main series of Aberdeen registers of the fifteenth century of any legal business taking place outwith the courthouse. This is because these sources mainly record court proceedings, and generally very concisely at that. There is only one example of a conflict resolution by four men, one of whom was the provost and another a former provost, to take place in �the tavern’.12 Another source from the late fifteenth century does provide ample evidence. This is the oldest so-called Sasine Register, which is, in fact, a type of notarial protocol book. It includes a significant number of acts made in houses in the presence of a notary. In addition, it contains documents which were enacted on the soil of the land that was the subject of an agreement. In July 1491, for example, John Logan rescinded his property in the hands of Thomas Fife, one of the bailies. This was done �super solum dicte terre’.13
There are only a few examples of documents recorded in the protocol book that were enacted specifically in taverns. Many more note that they were agreed in houses or town houses. It may well be that some or many of these were actually drinking houses.
This is confirmed by the fact that three owners of �houses’ where transactions are said to have taken place appear as owners of a tavern elsewhere.14 It is likely, then, that some of the other �houses’ functioned as taverns as well. In the seventeenth century, too, taverns or inns were referred to simply as the house of its owner.15A majority of the legal business recorded in the Sasine Register was conducted in other locations, like the tolbooth, the council house, St Nicholas Church or one of the other religious buildings in the city, such as St Katherine’s Chapel or Greyfriars’ Church.16 The bishop’s palace in Old Aberdeen is also occasionally recorded, as is the cathedral and the brand new university there.17 At other times, transactions took place outside: at the cemetery, by the mercat cross, on the �common royal road’ (�communi via regia’) or at one of the fishings.18 These spaces were either relevant to the case in hand, like those conducted on the property that was the object of the transaction, or they had a symbolic meaning. Bedos-Rezak noted that, in thirteenth-century France, court officials witnessed and wrote deeds in cemeteries, in front of churches and at crossroads, sites that were �consecrated by layers of religious traditions – Celtic, Roman, Christian’.19 This meaning was later appropriated by the city halls.20 It is likely that these sites had a similar symbolic meaning in late medieval Aberdeen. The question remains, however, how spaces like taverns and residences can be considered within this context. Joachim Eibach has argued that a house was considered as a legal space (�Rechtsraum’) of its own, with the man of the house (�Hausvater’) wielding his authority. This was not an autonomous legal space unconnected to the outside world and with its own rules, but one in which the Hausvater should offer protection on behalf of the authorities.21 As such, a house may have lacked the symbolic meaning of other sites, but it was a space that offered the peace and protection of its authority figure.
There is a variety of locations recorded in the Kampen register too, but there the majority of transactions appears to have taken place in houses of varying kind. The difference between the two is probably partly the result of the character of the source: the Aberdeen register records notarial acts, that is to say first-hand documentation regarding specific transactions, whereas the Kampen evidence is formed by witness statements set down in writing in the Liber Testium. These statements were most likely presented as evidence in court in a civil suit and concerned agreements that had been made orally at an earlier time. Neither of the two sources are a complete record of legal transactions conducted in each of the towns. The Aberdeen register probably mainly includes business from the town’s elite who sought to have their dealings, especially property transactions, recorded. It may be that they preferred a specific type of (high-status) location, like the symbolic sites mentioned earlier, or elite town houses. In Kampen, on the other hand, the Liber Testium probably only documents deals that went awry. These deals include those between masters and journeymen or servants, sales of small amounts of goods and the reconciliation of disputes. As such, the parties were potentially from a greater range of social and economic backgrounds. Drinking houses played an important role in urban social networking and were natural places for many transactions to take place.22 This was no doubt the case in both Kampen and Aberdeen. The difference noted in the extent of the use of houses is therefore unlikely to be one of legal culture.
Another point with regard to the type of evidence is the nature of the transaction and how it was concluded. In Kampen, many of the agreements were sealed with a drink – the wijncoep. This practice was common in high and late medieval Germanic lands to bind everyone present to the deal, that is to say the two parties in an agreement and the attracted witnesses, the wijncoepsluden (sg.
wijncoepsman). The drinking of wine, beer or other alcoholic beverages can be considered a public confirmation of the legal transaction or arrangement. It also functioned as proof that the act had taken place.23The transactions from Aberdeen were all conducted in the presence of a notary and recorded by him. There is no mention anywhere in the Sasine Register of wijncoep. Of course, this does not necessarily mean that there was no drinking involved in these transactions to seal the deal – it may be that it was considered too obvious or irrelevant to record. But judging by how regularly it was reported in the less formally formulated evidence from Kampen and considering how central the wijncoep was to settling any legal business there, it is more likely that drinking was not a fundamental part of the transaction ritual in Aberdeen. It is significant, perhaps, that no equivalent word in Scots or English for wijncoep is known. It may simply not have been part of legal culture in Scotland and England.24 There is, however, mention of other performative acts in the Council Registers: the exchange of a God’s penny, which will be discussed further below, and the ceremonial handing over of a clod of earth in property transfers.25. In addition, the recording of business in writing may in itself have been a performance that rendered other symbolic acts less important.
Of course, a ritual involving alcoholic drinks presupposed a location where such drinks were available. This is perhaps the most likely cause of the difference in location use between Aberdeen and Kampen. Drinks could be taken to any location, but it would have been more practical to conduct a transaction which required alcoholic beverages on premises where these were freely available, that is to say in a drinking house or domestic dwelling.