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helped many countries to substitute a rational law of bankruptcy for primitive rules as to execution for debt which were wholly unsuited to the needs of merchants.1

Fifthly, the judgments given in the courts of the fairs had an international force. If the courts of any particular country refused to recognize them, the merchants of that country were forbidden to come to the fairs (défense des foires)—an expedient which generally succeeded in securing the co-operation of the national courts.2 Just as in the rules made by the Italian cities for the decision of questions in which a foreign element is present we can see the germs of some of the rules of private international law, so in this rule we can perhaps see one of the causes which has led to the growth of that department of private international law which is concerned with the validity of foreign judgments.

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Sixthly, the rules laid down by the fair courts as to purchases from a non-owner have had large effects direct and indirect upon our modern commercial law. In these rules, originating in commercial necessity, and developed by the canonists' views as to the importance of good faith, we can see the growth of a set of doctrines which have not only modified the older rules as to an owner's rights to recover his chattels, but have also added to our commercial law one of its most important chapters.

We have seen that originally our English common law, which here followed faithfully the Germanic tradition, allowed the owner, whose property had gone from his possession against his will, to recover it from anyone in whose possession he found it; while, on the other hand, if he had voluntarily parted with possession (e.g. by bailment) he had no action save against his bailee.1 The latter part of the rule was modified, certainly as early as the first half of the fourteenth century, so as to give the owner a remedy against anyone who detained his chattel, even though he had voluntarily parted with it. In continental states the influence of the Roman conception of dominium and its consequences led to this modification of the older law; and in

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1 Huvelin, op. cit. 495-498; below 135-136, 137, 139, 150; Pt. II. c. 4 I. § 6. 2 Ibid 426-434; the international validity claimed for the judgments of the fairs of Champagne is illustrated by a correspondence in 1299-1300 between the Guardians of these Fairs and the Lord Mayor of London, printed by C. Walford, Fairs Past and Present 250-260; the Lord Mayor had taken upon himself to examine the facts on which the judgment was based; the Guardians of the Fairs in 1300 explained that this was irregular because "the cognisance of what relates to fairs belongs to no judge, but to us only"; and that if the mayor made default they must "inhibit the land and fairs of Champagne and Brie to all your subjects and their goods," at p. 257; cf. E.H.R. xxxvii 247.

3 Above 74-75.

* Vol. ii 79-80; vol. iii 319-322, 324-327, 336-337; cf. Huvelin, op. cit. 456-457. 5 Vol. iii 324-327.

6 Huvelin, op. cit. 464.

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England the same influence led to extensions of the scope of the older personal actions with the same results.1 But before this modification had taken place in continental states an exception in favour of the purchaser in a market had been established.2 This exception seems in France to have passed through two stages. At first the purchaser's title to the goods was secure; but later he was bound to restore if he were re-imbursed the price which he had paid. Later still a further condition was added. The canonist view of the importance of good faith, which did so much for the development of commercial contracts, led to the adoption of the rule that it was only the bona fide purchaser in a market who could claim this privilege.5 Hence we get the rule, either in the form that the former owner cannot recover at all from the bona fide purchaser, or in the form that he can only recover if he is willing to pay the price which the bona fide purchaser has paid. This rule formed an exception both to the old rules which allowed an owner who had involuntarily lost possession to recover from any third person, and to the new rules which allowed him to recover when he had voluntarily parted with possession. This exception in favour of bona fide purchasers in a market still forms part of modern codes of commercial law; and it is perhaps the earliest illustration of that recognition of the claims of the bona fide purchaser, which the exigencies of a highly organized commercial system have compelled the law to concede. 8

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In these various ways we can trace the influence of the law administered in these international fairs upon the growth of our modern law. A similar influence was exercised by the associations of foreign merchants who settled in the various European states. They familiarized the merchants of those states with the legal doctrines I have just described; and these influences tended to give to the commercial law of Europe its modern cosmopolitan character. The books of the writers of the seventeenth century show that Italian, Flemish, French, and Spanish authors could be cited by the writer of any nation to illustrate or to prove the doctrines which he was expounding. Far more truly than in

1 Vol. iii 339-341, 347-349..

2 Huvelin, op. cit. 460; Mitchell, op. cit. 97, 98.

3 Huvelin, op. cit. 460-461.

5 Huvelin, op. cit. 462.

4 Above 80-81.

6 Ibid 463-464.

7 Ibid 465, citing Art. 2280 of the French Code Civil; below 105, 110-111 for the English development.

8 Cf. Mitchell, op. cit. 102; below 105 n. 1.

9 A very cursory inspection of the books of Marquardus or Ansaldus will show this; two of the earliest of these writers were Straccha, and Pedro Santerna Lusiterna, whose works were printed in 1556, Desjardins, op. cit. 104, 108; they are cited by all their successors; thus Marquardus ii 13. refers to them as the founders of insurance law.

the Middle Ages the commercial law of Western Europe had become a jus gentium which "apud omnes populos peræque custoditur."

We shall now see that the growth of international commerce was producing a similar degree of uniformity in the principles of the closely allied topic of maritime law.

Maritime Law.

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The early history of maritime law is somewhat different from the early history of commercial law. In most of the European countries which possessed seaports and a coasting trade the customs of the sea were codified from an early date, and these customs applied to a group of ports. We have seen that the Consolato del Mare, the laws of Oleron, the laws of Wisby, and the laws of Lubeck formed a series of codes which governed all the various maritime states of Europe. Thus in the earlier Middle Ages maritime law was more cosmopolitan in its character than commercial law. There was more variety between the customs of towns in different parts of Europe than between the customs prevailing in the different seaports. This is due to two sets of causes. In the first place, the problems which a body of maritime law must solve are in all ages very similar. Some of the topics dealt with in the laws of Oleron appear in most of the other codes. The duties of the mariners, the power of the master, jettison, contribution, average, salvage, collision, loading, freight -are topics which must occur so soon as any sort of sea borne trade arises. Moreover the conditions under which this trade was carried on were stable as well as similar. "Between the ninth and the thirteenth centuries," says Mr. Ashburner, writing in 1909, "there was probably less change in the conditions of commerce and navigation than there has been in the last twentyfive years. In the second place, sea borne trade means communication between places comparatively distant, and geographical conditions limit the number of these places. These facts tend to produce a similarity of rule because it is easy for one port to imitate the customs of another port. They tend also to make a codified set of rules convenient because they enable the foreign merchant to understand his legal position.

" 2

But, though there are these differences between the maritime and the commercial law of the Middle Ages, the intimate connection between these two branches of law has caused the manner in which they were administered, and the manner in which their rules were developed, to be very similar.

We have seen that in the trading centres of the south of

1 Vol. i 527-528.

2 Ashburner, op. cit. cxv.

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Europe the mode in which maritime law was administered was similar to the mode in which commercial law was administered.1 At Barcelona the prud'hommes of the sea administered maritime law, just as the prud'hommes of the merchants administered commercial law; and in the Flemish ports, and other ports in northern Europe, this method of administering the law was followed. But this method was not followed so universally in maritime as in commercial law. In France, just as in England, jurisdiction over maritime cases was vested in a court of Admiralty; and in France as in England this division of functions produced conflicts of jurisdiction. In France the Admiralty and the commercial consular courts often differed as to their competency to exercise jurisdiction, just as in England the Admiralty and the common law courts differed. But the results of the conflict were very different in the two countries. While in England the Admiralty was deprived of practically all its jurisdiction over commercial cases, in France it retained an exclusive jurisdiction over all those commercial cases which involved carriage by sea.5

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But this difference in the mode in which maritime law was administered did not prevent a growing similarity in the principles of that law. We have seen that the commercial activities of the trading centres of the south of Europe caused the growth of elaborate bodies of maritime law. These bodies of law contained minute regulations upon topics which were either but scantily treated or were not treated at all in the codes of northern Europe. The contract of marine insurance is as we shall see a striking example. It was inevitable that these bodies of law should be used in the sixteenth century by the seaports which, owing to the trade with the Indies and America, had taken the place of the seaports of the Mediterranean. It is true that, in the case of those branches of maritime law which touched upon international questions, the nations differed. Selden advocated a mare clausum and Grotius a mare liberum. But, in the case

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4 Vol. i 553-558.

5 Pardessus, op. cit. iv 327-the ordonnance of 1681, after enumerating a long list of matters which fell under the jurisdiction of the court of Admiralty, ends by giving it jurisdiction, generalement de tous contrats concernans commerce de la mer, non obstantant toutes sousmissions et privileges au contraire."

6 Above 76-77.

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7 Pt. II. c. 4 III.

8 This was effected partly by legislation-thus we have an elaborate ordinance of 1552 for Spain, Desjardins, op. cit. 105; a maritime code in 1561 for Denmark and Norway, ibid 117; and for France a comprehensive edict in 1584 as to the jurisdiction of the Admiralty, ibid 121, 122; partly by the works of authors like Straccha, ibid 104, Santerna, ibid 108, and Wertsen, ibid 113-114, who wrote in the sixteenth century; and by Grotius, above 55, Marquardus, Desjardins 164, and many others, ibid 165, 166, who wrote in the seventeenth century.

9 Above 10-II.

of the much larger body of rules of maritime law which touched upon commercial questions, the growing similarity between the commercial laws of the various states of Europe intensified the similarity which already existed between their maritime codes. In the case of maritime as in the case of commercial law the treatises of the European jurists possessed an authority which was international.

In these various ways principles and rules of commercial and maritime law, which had originated in the Italian cities and the trading centres of the south of Europe, were received by many other states, and became the basis of their commercial and maritime law. But it is time to return from our wanderings in foreign lands, and with the help of the information we have gained to examine the effect of these widespread changes and developments upon our English law.

The Beginnings of English Commercial and Maritime Law

The origins of some of the doctrines of English commercial and maritime law can be traced back to the Middle Ages; but by far the larger part of our modern commercial and maritime law is due to the reception of continental doctrines in the sixteenth and seventeenth centuries. In the case of commercial law this reception was effected partly by the legislature, partly by the Council, and partly by the various courts of law which had jurisdiction in mercantile cases-the Admiralty, the Chancery, the Star Chamber, and the courts of common law. Through these various agencies many new legal doctrines, familiar in the trading centres of Europe, became part of English law, and began to be developed on native lines by the English courts. In the case of maritime law this reception was effected mainly through the court of Admiralty. This court was well established in the sixteenth century, and had already begun to lay the foundations of English maritime law.1 But naturally its importance and the sphere of its jurisdiction were enlarged by the commercial expansion of the latter part of the sixteenth century. It too began to apply some of those doctrines, both of maritime and commercial law, which had been evolved in foreign lands, and to incorporate them into English law.

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The history of the technical development of some of the most important of these doctrines of commercial and maritime law I shall relate in the second Part of this Book. In this chapter I shall describe shortly the medieval beginnings of English commercial and maritime law; the agencies by means of which the 2 Ibid 546-547.

1 Vol. i 552-559.

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