of commercial and maritime law; the second part deals with money; the third part with bills of exchange, process to compel appearance and the execution of judgments, and the various courts in which the Law Merchant was administered at home and abroad. The book is often discursive. We have a fantastical disquisition on the mysteries of numbers,1 and a useful discourse on weights and measures used in different parts of the world.2 There is an attempt to give a geometrical description of the world,3 and an account of some of the new plantations and discoveries.* While discussing usury, he turns aside to advocate a favourite scheme for the establishment of a Mons Pietatis under government supervision. His last chapter but one entitled "The Due Commendation of Natural Mother Wit," is a curious mixture of vain speculation and a few anecdotes."

He

But these aberrations form but a small part of the book. The greater part contains much that is valuable to the economist and the lawyer. Mr. Hewins tells us that he was "the first English writer in whose works we find that conception of Natural Law which was later on to play such an important part in the development of economic science." 7 No doubt his legal lore had helped him to this conception. It is not, however, so much on the speculative problems of economic science, as on the practical side of business life, that the book is strongest. It contains many plain and straightforward disquisitions upon all matters which a merchant should know. There is information upon geography political and physical, statistics, customs duties, accounting, as well as upon the commercial law and practice of the time. can cite ancient literature and the modern ordinances of continental states. He is familiar with the civil law and the works of the commentators; and the whole book is enlivened by the manner in which he uses his experience of commercial and of public life to illustrate the topics which he is discussing. It is the book of a man who has lived in the contemporary world of commerce, and has taken some part in making the commercial laws about which he is discoursing. He delights in concrete facts the mechanism of banking, the machinery of the custom house, the encouragement of manufacturers, the standards of money, the working of mines, and the business of the mint. It is for this reason that he was so eminently fitted to explain to Englishmen the principles which underlay the laws which regulated the commerce of his age. He could explain them by reference to fact and experience without using the technical terms

1 Pt. I. c. 3.

4 Ibid c. 46.

2 Ibid c. 4.

Pt. II. c. 13.

3 Ibid c. 6.
6 Pt. III. c. 19.

7 English Trade and Finance in the Seventeenth Century xxi,

of the civil law. He therefore conveyed them to England in a form in which they could be readily acclimatized and received either by the common lawyers or the civilians.1

Malynes thus crystallized and put into permanent form the mercantile usages and practice which, throughout the century, had been transforming mercantile law. But he recognized that

3

6

2

to understand these usages and this practice, some account of the doctrines of the civilians was essential. He notes their opinions on the law as to agency, as to insurance, as to partnership,5 and as to contracts made verbally. What he has to say as to pecunia trajecticia and usura maritima could be found in any of the continental treatises of the period. He cites Bartolus as to the extent of territorial waters, and Straccha and other civilians as to points in the law of bankruptcy. In dealing with procedure before the courts of merchants he cites another tract of Straccha-Quo modo procedendum sit in causis mercatorum—“Wherein are many universal things propounded." 10

8

That the Law Merchant was chiefly based upon the works of the civilians, who had adapted the civil law to modern commercial needs, is obvious from the works of other authors, and from the practice of the Council. Welwod, in his Abridgment of the sea laws, cites the Consolato del Mare, the Rhodian Law, Straccha, Ferretus, Shardius, Peckius," Bartolus, Baldus, and many other commentators on relevant passages of the Digest; and the Council often associated civilians with the merchants in the very numerous cases which they sent to arbitration. 12 As Sir Thomas Ridley pointed out, this law was far better suited to the needs of the merchants than the English common law, partly because it contained, while the common law did not contain, the rules of law which were made to deal with their cases, partly because these rules were better known to the foreign merchants suing in this country, 13 But, though Malynes would have admitted that the

1

Pepys rightly regarded the book as a suitable present to a boy who was just going to the East Indies, Diary (Ed. Wheatley) vii 240.

2 Lex Merc. p. 5, "To give satisfaction to the learned and judicious, I have extracted the observations of the learned in the civil laws, upon all the precedent points, and added them unto the following chapters distinctly from the customs of merchants; using the ordinary name of Civilians in general, without naming any particular author, to avoid ambiguity and uncertainty in the contents of this book." 5 Ibid 120, 150. 8 Ibid 133. 11 Pp. 4-6 (ed. 1613).

Op. cit. 79-81.

6 Ibid 93.

9 Ibid 158, 160, 161.

4 Ibid 115-119.

7 Ibid 122, 123.
10 Ibid 308.

12 See e.g. Dasent iv 92 (1532); ix 168 (1575); xiv 214 (1586); xx 202 (15901591); xxiv 70 (1592)—doctors of civil law were to represent the parties before the court of Requests.

"What equity can

13 Ridley, a view of the Civil and Ecclesiastical Law 175-177, it be to take away the triall of such business as belongeth to one court, and to pull it to another court; specially, when as the court from whence it is drawn, is more fit for it, both in respect of the fulness of knowledge that that court hath to deal in such

civil law was the basis of much of the Law Merchant which he was expounding, he would certainly have given it a position of secondary importance as a source of that law. He agreed with his continental brethren in deprecating the excessive technicality of the civilians, and the unpractical character of some of their discussions.2 Though the knowledge of the civil law was useful, and indeed on some points essential, the main thing was a knowledge of mercantile usages and practice. This he held, was the real foundation of the everyday law which all merchants should know. (ii) Agencies.

What then were the agencies by which this law merchant, based on the usages and practice of the merchants, and moulded by the civilians into a legal system, was incorporated into English law? The answer is that the legislature, the executive, and the courts of Star Chamber, of Admiralty, of Equity, and of common law all took a hand in the work. Therefore of the share which these different bodies took I must say a few words.

4

The share taken by the legislature in introducing into English law the changes and additions rendered necessary by the changed economic position of the country was not very large. A statute of 1540 made some additions to the jurisdiction of the court of Admiralty, and some new regulations as to rates of freight and as to the duties of shipowners. A statute of 1601 established a tribunal to hear cases of insurance; and other statutes introduced the beginnings of the usury laws,5 and the laws as to bankruptcy business, and also of the competency of skill, that is in the judges and professors of those courts. For albeit they (the common lawyers) are very wise and sufficient men in the understanding of their own profession, yet have they small skill or knowledge in matters pertaining to the civil profession: for that there is nothing written in their books of these matters. Whereas contrarily the civil law hath sundry titles concerning these kinds of causes, whereupon the interpreters of the law have largely commented, and others have made several tractates thereon. . . . Besides this business concerns also strangers who do live in countries ordered by the civil law. And therefore it were no indifferency to call them from a trial of that law, which they in some part know, and is the law of their country (as it is almost to all Christendom besides) to the trial of a law which they know in no part ; "cf. Zouche, op. cit. 129, 130; vol. i 554-555.

...

1 Above 81-84; 93-96.

Papinian,

2 Op. cit. 3-4-"Bartolus, Baldus, Justinian, Ulpian, Paul Benvenuto Straccha, Petrus Santern, Joannes Inder, Baldwinus de Ubald, Rodericus Suarez, Jason, Angel, Andrias Tiraquell, Alciatus, Budeus, Alexander Perusius, Pomponius, Incolaus Boertius, Azo, Celsus, Rufinus, Mansilius, Sillimanus, Accursius, Franciscus Aretinus, Grisogonus, Lotharius, Julianus, and divers other doctors and learned of the civil law have made many long discourses of the questionable matters fallen out among merchants by the reading whereof merchants are like to metamorphise their profession and become lawyers, than truly to attain to the particular knowledge of the said customs or law merchant: for they have armed questions and disputations full of quillets and distinctions over curious and precise, and many of them to small purpose, full of Apices Juris, which them. selves have noted to be subtelties."

332 Henry VIII. c. 14; vol. i 549.

4 143 Elizabeth c. 12; vol. i 571; below 150.

5 Pt. II. c. 4 I. § I.

and insolvency.1 These statutes do not cover much ground. It is therefore to the work of the Council and the courts that we must turn if we would see the manner in which mercantile usage and practice was worked into the fabric of English law.

4

6

2

5

7

The work of the Council was indirect, but it was none the less effective. We have seen that it exercised a general superintendence over all other courts. It used this power to give directions to the other courts as to the hearing of commercial3 and maritime cases which had been brought before it; to compel parties to submit to arbitration; and to carry out the awards of the arbitrators; to prevent creditors and others from making an inequitable use of their legal rights; to collect information from the merchants as to mercantile usages with a view to new legislation or new regulations. Moreover, it helped directly to foster the commercial jurisdiction of English courts by forbidding English subjects to submit their cases to foreign tribunals. In these various ways the Council brought to the notice of lawyers of all kinds the new problems raised by the changed conditions of trade. The civilians, who were called upon to act as arbitrators, were encouraged to study the foreign books upon commercial and maritime law. The common lawyers, who were sometimes asked to assist the civilians, learned something both from the civilians and from the merchants who appeared before them.10 The chief justices, the attorney and solicitor

2 Vol. iv 83-88.

1 Pt. II. c. 4 I. § 6. 3 Dasent xii 341 (1580-1581)—expedition of the procedure of a commission of bankruptcy at Chester; xxviii 362-363 (1597-1598)-a case turning on the misdeeds of a factor at Bombay.

Ibid vii 243 (1565)—a case which had been complicated by different decrees made by the court of Admiralty; xiii 222 (1581)—title to a ship; xiv 257 (1586)—a suit for the recovery of captured goods; xviii 72 (1589)—a direction to the court of Admiralty to expedite the hearing of a dispute as to freight and average, or to appoint merchants to decide it summarily; diplomatic reasons were sometimes the cause for the issue of these directions, see Acts of the Privy Council (1613-1618) 12, 41-42.

Ibid xiv 348 (1586-1587)-compulsion on creditors to agree to an arbitration; xix 396 (1590)—a similar case; and see ibid viii 128 (1573), 199 (15731574), 310 (1574); ix 224-225 (1576); x 15 (1577), 315 (1578); xi 27-28 (15781579), 415 (1579-1580); xii 116 (1580); conversely the Council interfered if the debtor made a fraudulent use of its interference, xv 97 (1587)—a debtor had abused the privileges given to him and had not paid what was due under the composition. 6 Ibid viii 195-196 (1573); xii 69 (1585)—both cases of difficulties in enforcing the awards of the insurance commissioners.

7 Ibid xvi 265 (1587)-process at common law stayed in a complicated commercial case; xviii 362 (1589)—action against a merchant under an obsolete statute stayed; above n. 5.

8 Ibid viii 397 (1575); ix 43, 163, 177 (1575-1576)-regulations to be made by the Lord Mayor of London as to insurance cases.

9 Ibid xxvii 20, 131-132, 232 (1597)—English subjects are forbidden to sue in France on a contract made in England; ibid 29-an English subject is forbidden to sue the Levant merchants in the Venetian courts.

10 Ibid ix 14 (1577)—the attorney and solicitor-general to advise with the judge of the court of Admiralty as to what is piracy; ibid 168 (1575-1576)—some of

general, and any other judges who were members of the Council, assisted to deal with the cases which came before the Council, and to draw up the regulations which were made by the Council from time to time.1

At the beginning of this period the Star Chamber (which was then not so distinctly separated from the Council as it afterwards became)2 heard many cases connected with commercial and maritime law to which foreigners were parties.3 But it would appear from Hudson's book that, towards the end of the century, these cases were not so frequently heard there. The Star Chamber occupied itself rather with criminal or quasicriminal cases, disputes between corporations, the enforcement of commercial legislation, or with cases connected with the possession of land or the interests of copyholders-all of which had a more or less direct bearing upon the maintenance of the peace of the country. The one method in which it assisted the growth of commercial law was the effective remedies which it employed to punish forgery, fraud, and abuse of legal process.5 There can be no doubt that its efforts in this direction tended to inculcate an improved standard of commercial morality. And, in particular, it helped on the growth of an adequate law of bankruptcy."

It is evident from the records of the court of Admiralty that its influence upon the development of commercial and maritime law was of greater importance and far more direct than the work of the Council and Star Chamber.

8

The regular series of these records begins in 1524.7 From that date we get the files of Libels and the Act Books; and other classes of records make their appearance during the course of this and the following centuries.9 Like the records of the

the common law judges and civilians appointed to arbitrate in a commercial case; in the King v. Marsh (1616) 3 Bulstr. 27, 28, Coke C.J. mentioned a case in which he and other judges had consulted with the civilians as to piracy and the privileges of ambassadors.

See e.g. Dasent xxxi 252-253 (1601)—the chief justice of the King's Bench and the judge of the Admiralty are to collect information as to the mode in which merchants dealt with insurance cases.

2 Vol. i 495-497.

3 The case reported in Y.B. 13 Ed. IV. Pasch. pl. 5, above 117 n. 1, was heard in the Star Chamber; cf. vol. i 504-505; Hudson, A Treatise on the Court of Star Chamber 55, says, "Controversies betwixt merchant strangers and Englishmen, or strangers on both parts were there determined; the restitution of ships and goods unlawfully taken, or deceits of merchants"; the precedents cited are from Henry VII. and VIII.'s reigns.

4 Hudson, op. cit. 54 says, "That happeneth by reason of the haughty ambition of the merchants, who desire to make themselves in their companies like a council of state."

5 Ibid 65-71, 93, 95-99.

6 Below 150; Pt. II. c. 4 I. § 6. 8 Ibid lxi, lxii.

7 Select Pleas of the Admiralty (S.S.) i Ix. 9 Ibid Ixiii-lxv; for an account of the records of the court of Delegates (which heard appeals from the Admiralty vol. i 547) see Marsden, Admiralty Cases 231.