Some problems in the English law of markets and fairs

If a foreigner visiting England in 1898 were to have asked that famous man on the Clapham omnibus to describe an English market our visitor might have heard a colourful evocation of a busy market place in which crafty market traders who enthusiastically hawked their goods in a rich vernacular were always assured of a crowd, despite the sometimes shoddy nature or dubious origin of the goods sold; or our visitor might have heard how country folk, rising long before dawn, drove their cattle into market pens hours before the descent of the auctioneer, and of the astute farmers who might bid for the best beasts with a sly nod, or a surreptitious hand on a mutton chop whisker. He might have heard of charters granted to long deceased lords of the manor whose only modern memorial is perhaps a recumbent statue in a country church; the tale might have been of hiring fairs, where masters hired their servants at Michaelmas for the coming year, or of the great sheep fairs where there were gathered not only the myriad sheep whose incessant bleating denied all sleep to the inhabitants of Weyhill or Marlborough but also the drunken husbands who sold their wives; and the Celtic drovers who counted their money in dark corners and eavesdropped on others' news to take back as gossip to the barren mountain farms in their homelands of Ceredigion or Gwynedd, Dwyfor or Plynlimmon. And so our visitor would have heard of a rich trading culture running through the veins of English history from the days of the Roman legion into modern times. But if our visitor, after stepping from the Clapham omnibus, had shared a hansom cab with the learned jurist, Chitty, he would have received a very different answer to his question. A market, Chitty would have explained, is a right of property, an incorporeal hereditament. It is an exclusive or monopoly right to conduct a market which allows the owner of the property right to exclude all competitors. Chitty would have added that the English courts may sometimes enforce this right by closing down those unlawful markets which inflict damage upon or "disturb" the established lawful market. If our visitor, in marvelling at the different answers he had received, had commented in his diary how strange it was that a nation so committed to free trade and competition as England should perpetuate the monopolies of ancient times, with how much more astonishment might the reader of that diary today learn that these monopolies are vigorously continued into an era in which de-regulation and competition are an article of faith with the government, and the supreme and directly applicable articles 85 and 86 of the Treaty of Rome mandate a prohibition on certain anti-competitive behaviour? This article proposes to ask questions about the existence, origin and extent of these market rights and to indicate some of the inconsistencies in market law that remain unresolved despite the long attention devoted to this chapter of the common law. It will also examine the recent failed attempt of central government to reform market law and suggest that, even in an age of free markets, such monopolies have some purpose.