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begin till 1524.1 But it is clear from the statutes of Richard II. and Henry IV.'s reigns," from the inquiries made at the Admiralty inquests, and from two early cases of 1390 and 1389 printed by Mr. Marsden, that the Admiralty, in addition to cases directly connected with shipping, was already in possession of a jurisdiction over commercial contracts entered into abroad; and that the expansion of this jurisdiction had already begun to arouse the jealousy of the common lawyers.

6

The reasons why the court of Admiralty was assuming this jurisdiction are obvious. In the first place, the connection between the cases which arise in connection with merchant shipping and those which arise out of foreign trade must always be close. In the second place, the common law rules as to venue prevented the common law courts from assuming jurisdiction over such cases. In the third place, the civil law procedure of the Admiralty, because it was based on the technical ideas of the civil law, was far more intelligible to the foreign merchant than the procedure of the common law courts. We shall see that in the sixteenth century, when the foreign trade of the country began to expand, these causes operated even more strongly ;7 and that the court of Admiralty became a valuable ally to the Council when these commercial cases came before it.

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But even in this mediæval period there were signs that the court of Admiralty would not be permitted to get a monopoly of this kind of business without a struggle. We have seen that the common law courts were beginning to think of making changes in their procedural rules with a view to attracting some of it to themselves.9 At the same time the Chancellor was also claiming some share, and could offer the advantage of a procedure which, in some respects, was better adapted to the needs of the merchants than that of the Admiralty or the common law.10

2 Vol. i 548-549; above 126.

At

1 Below 137. Rules about matters which belong to the Admiralty, Black Book (R.S.) i 69— Lords of franchises are not, according to an ordinance made by Edward I. at Hastings, to try any question of a ship's obligations unless the sum at issue only amounts to 20s. or 40s.; also "any contract made between merchant and merchant, or merchant or marriner beyond the sea, or within the fflood marke, shal be tryed before the admirall and noe where else, by the ordinance of the said king Edward and his lords"; cf. ibid 163—inquiry to be made as to those who sue at common law when they ought to sue in the Admiralty, and as to judges who usurp Admiralty jurisdiction; ibid 236—a similar inquiry in Master Rowghton's articles; in 14011403 a fine was inflicted for this offence by the Admiralty court of the Cinque Ports, Select Pleas of the Admiralty (S.S.) ii lx.

4 Sampson v. Curteys, Select Pleas of the Admiralty (S.S.) i 1-17—an action for trespass to goods, one of the defences to which was seizure by order from the Admiral.

5 Gernesy v. Henton, ibid 17-26-an action for conversion of money, money due for freight, and money due for salt and herrings bought.

6 Above 117-119.

8 Below 136.

10 Above 116-117; below 139-140.

7 Below 134, 137-139.

9 Above 118-119.

the close of the medieval period, therefore, it was clear that many courts were preparing to put forward claims to exercise jurisdiction over the new legal business which an expanding foreign trade was bringing to English lawyers. All of these courts helped, as we shall now see, to develop our modern commercial and maritime law.

(2) The reception of the foreign doctrines of commercial and maritime law.

The needs of the merchants made this reception absolutely necessary. Naturally their usages and practices were the main sources from which these new rules were derived. But, since on the Continent these usages and practices had been developed in the technical atmosphere of the civil law, some of the doctrines of the civilians of the fourteenth and fifteenth centuries, applicable to commercial and maritime questions, were also introduced. I shall, in the first place, say something of the manner in which these two sets of influences made themselves felt in England; and, in the second place, of the agencies by means of which the new legal rules and doctrines, which these influences inspired, were incorporated into English law.

(i) Sources.

We have seen that, on the Continent, the usages and practices of merchants, administered in courts presided over by merchants, were the main foundation of the commercial and maritime law; and that, in England, the medieval Law Merchant was based upon a similar foundation.2 We have seen too that England based its maritime law upon the laws of Oleron-just as the other sea-port towns which bordered upon the Mediterranean, the Atlantic ocean, the English Channel, or the North Sea based their law upon similar codes of maritime usage. All through the sixteenth century these continued to be the principal bases of the Law Merchant in England. The records of the court of

2 Above 104-112.

1 Above 93-96. 3" All maritime affairs are regulated chiefly by the imperial laws, the Rhodian laws, the laws of Oleron, or by certain peculiar municipal laws and constitutions appropriated to certain cities, towns and countries bordering on the sea within or without the Mediterranean, calculated for their proper meridian; or by those maritime customs and prescriptions or perpetual rights which are between merchants and mariners, each with other, or each among themselves," Godolphin, A View of the Admiral Jurisdiction 40.

Welwod (ed. 1613) An Abridgement of all Sea Laws Title V-" The debates of seafarers, and seafaring actions, should be decided according to the received laws and statutes of the sea: which failing, then the customs and consuetudes of these are to be followed. And if neither law written nor unwritten custom nor consuetude occurs.

the last refuge is to the opinions and sentences of skilled and upright men in the profession and exercise of seafaring; because it is old and common that the judgment of skilled and well practised men should be followed in their own trade and calling."

VOL. V.

2

3

Admiralty sometimes refer specifically to the usages of merchants 1 or of mariners or to the laws of Oleron; and charter parties generally contained a similar specific reference to these laws.* Then, too, the merchants were given many opportunities to shape these usages by applying them to the facts of particular cases. In the numerous mercantile and maritime cases which came before the Council there is usually a direction that they were to be settled by arbitration; and among the arbitrators there were usually merchants.5 The same records show us that the whole law and practice of insurance originated in the first instance from the merchants themselves;" and often the governing bodies of the various companies, which had the monopoly of foreign trade to different parts of the world, were given a large power to settle differences arising among their members.7 In England, as in the Italian cities it was this kind of domestic tribunal which was the most satisfactory to the merchants themselves. The long discussions of the lawyers-whether they were civilians or common lawyers-wasted time, and often hindered the doing of substantial justice."

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That the usages and practice of the merchants themselves were the main source of the law is clear from the literature on the subject. If we except the controversial literature upon the sovereignty of the British Seas,10 and upon the jurisdiction of the court of Admiralty 11 we find that nothing was written during this period by the common lawyers, and very little by civilians.

We

1 Select Pleas of the Admiralty (S.S.) i 98, as to the transfer of a ship or cargo beyond the sea or at sea; ibid i 110-a usage that merchants in Spain appoint their factors by public instrument, and that their authority can only be revoked by a similar instrument; ii 142-as to payment of freight when a cargo of wine is lost by bad weather.

2 Ibid i 98-last note; ibid 44-a custom of merchants and mariners that shipowners, etc., are not liable for goods not entered in the "boke of ladyng."

3 Ibid i 82; ii 122.

Malynes, op. cit. 98.

5 See e.g. Dasent ii 377 (1549-1550)-two English and two foreign merchants to arbitrate as to freight payable. xiii 343 (1581)—owing to the delays of the Admiralty a case is sent to arbitration; xiv 24-25 (1586) partnership accounts; xviii 72 (1589) — merchants are to hear summarily a case turning on questions of freight and average; ibid 26-a similar tribunal is to hear a case of account; xxiv 109 (1592-1593)— partnership accounts.

6 Below 139; Pt. II. c. 4 III.

7 Vol. iv 320; below 149-150; Dasent xii 207 (1585)—a rebuke to the judge of the courts of common law who interfere with the government of these corporations of merchants by removing cases into their courts.

8 Above 68-71.

9 Dasent xxiii 33 (1592)—a distinction is drawn between a judicial hearing by the judge of the Admiralty and a hearing before himself as arbitrator-the latter was clearly regarded as much less lengthy and expensive than the former.

10 Above 10-II.

11 Above 12; Coke, Fourth Instit. c. 22; Prynne, Animadversions 75-133; Zouche, The Jurisdiction of the Admiralty of England Asserted; Godolphin, A View of the Admiral Jurisdiction; Ridley, A View of the Civile and Ecclesiasticall Law 172-180.

have seen that W. Welwod, professor of the civil law in the University of St. Andrews, published in 1613 a useful collection of sea laws,1 large parts of which were incorporated by Malynes in his chapters on maritime law. Marius, a public notary, wrote in 1651, a tract designed to give practical advice on the subject of bills of exchange.2 It was not until 1676 that a man who had some claims to be called an English lawyer wrote upon these topics. Charles Molloy, who was both a civilian and a member of Lincoln's Inn and Gray's Inn, in the second book of his very successful treatise, De Jure Maritimo et Navali,3 gives us some account of these branches of the law, based partly upon the works of Marius on Bills of Exchange, but principally upon the work of Malynes.

Gerard Malynes, a merchant, was the first Englishman to treat of the Law Merchant as a whole. He was the first to write a treatise on this subject which could be compared with the similar treatises which, throughout the sixteenth century, were appearing in the chief countries of Europe. His book was therefore a pioneer treatise, which introduced English merchants and lawyers and statesmen to the legal doctrines and economic speculations of the Continent; and the fact that it was written by a merchant, and not by a lawyer, tells us something of the manner in which this branch of the law was growing up. It summed up its growth during this period; and therefore it is to Malynes and his book that we must turn if we would understand the nature of this growth.

Malynes 5 was of Lancashire descent-the son of a mint master, who had emigrated to Antwerp in 1552; and it was at Antwerp that he was born. His father probably came to England with his family in 1561. We first hear of Malynes in 1586, when he was appointed one of the commissioners of trade in the Low Countries for settling the value of money. From that time onwards he was frequently consulted by the government on

1 Above II.

2 The fourth edition, enlarged and corrected by the author, is printed in the 1686 edition of Malynes, Lex Mercatoria; the author tells us in his preface that the book is "the crop of four and twenty years experience in my imployment in the Art of a Notary publick, which I am, and do yet practise at the Royal Exchange in London both for Inland and Outland Instruments."

3 The book deals partly with international, partly with commercial and maritime law; the first book is wholly occupied with the former subject, the second with the latter, and the third to some extent with both; it went through many editions, the last being published in 1778-more than a hundred years after its first publication.

4 The full title of the book is, “Consuetudo, vel, Lex Mercatoria: or the Ancient Law-Merchant. In three parts according to the essentials of traffic. Necessary for Statesmen, Judges, Magistrates Temporal and Civil Lawyers, Mintmen, Merchants, Mariners, and all others negotiating in any Parts of the World."

5 See Mr. Hewins' article in the Dict. Nat. Biog.; and cf. Hewins, English Trade and Finance in the Seventeenth Century xx-xxv.

matters relating to trade and the coinage. He became one of the assay masters of the mint, and was engaged on several schemes to work English mines. He was employed to carry out a project which he had advocated for the coinage of brass farthings; but the project ended disastrously. In 1619 he was imprisoned for debt, because, as he told the king in a petition which he presented to him, his employers had insisted on paying him in his own farthings. In 1622 he gave evidence as to the state of the coinage to the standing committee on trade; and he lived long enough to address a petition to the House of Commons in 1641. All through his life he had thought and written much on economic subjects; and his writings are the more valuable because he had had practical experience as a merchant. With the facts about which he speculated, and the rules of law about which he wrote, he had come into personal contact. Some of his theories-notably his favourite theory as to the effect of the operations of the exchangers of money upon trade-were false.1 But, because of the close touch which he maintained with the realities of commercial life, all his works are valuable to the historian of the commerce and the commerial law of this period.

It was perhaps this combination of a speculative mind and a studious temperament, with the practical career of a business man interested in the politics which bore upon business, which induced him to write his famous book upon commerce and commercial law. From the first it was a success. 2 It was first published in

1622, and a second edition was called for in 1629. It was republished in 1636, and again in 1686. In the latter edition it was bound up with other tracts dealing both with mercantile and other subjects.3

The book is divided into three parts. The first part contains forty-seven chapters, and deals mainly with the principal topics

1 Hewins, English Trade and Finance in the Seventeenth Century xxii, xxix the fallacy was pointed out by Misselden, ibid.

2 Mr. Hewins, op. cit. says, "We find him turning over the Tower records for information about trade, and reading with interest a scarce manuscript at Lambeth"; and again, at p. xxii, " 'Malynes' practical experience as a merchant was great, and brought him into contact with men of all kinds. His books abound with little touches which show that he was familiar with and had been engaged in business transactions at most of the great centres of European commerce. We find him buying from Sir Francis Drake pearls which he had brought back after his successful raid on Cartagena in 1587, discussing mining with Sir Walter Raleigh, and experimenting on the properties of diamonds."

;

3 It is to this edition that my references are made. It contains also the following tracts: The Collection of Sea Laws by Welwod; Advice concerning Bills of Exchange by Marius; the Merchants' Mirror by R. Dafforme, late Accountant; An Introduction to Merchants' Accounts by Collins; the Accountants' Closet by A. Liset; the Jurisdiction of the Admiralty of England Asserted by Zouche; the Ancient Sea Laws of Oleron, Wisby, and the Hanse towns translated by Miege; the Sovereignty of the British Seas by Buroughs.

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