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It is clear however that, as early as the first half of the seventeenth century, the process of incorporating the rules of commercial law into the common law had been begun. These rules had ceased to be quite outside the common law. They were recognized as a part of the common law, though as yet they were a separate part of the common law. In many cases it was necessary that their existence should be proved to, and their reasonableness approved by, the judges of the common law courts, before they were enforced as law; and, owing partly to the fact that the common law was very bare of principles applicable to the commercial problems of the day, and partly to the fact that their procedure was ill adapted to the trial of many of these cases,1 litigants, when possible, avoided the common law courts. But the common law judges were not discouraged by these disadvantages of which, indeed, most of them were hardly conscious. They decided the cases which came before them to the best of their ability; and, owing to the political events of the seventeenth century, which gave them the victory over rival jurisdictions, their decisions have an historical importance which they would not otherwise possess. In them we can see the beginnings of a continuous native development which has shaped the commercial and maritime law used by all Englishspeaking races at the present day.

During this period therefore the new doctrines of commercial and maritime law were being received through many different channels. We can see the beginnings of the usury laws, the bankruptcy laws, the laws as to negotiable instruments, and trading corporations; we can see the beginnings of the modern law as to ships and shipping, and as to the various incidents of the contract of carriage by sea; we can see the beginnings of the law as to insurance. Of the beginnings of these branches of our modern commercial and maritime law I shall speak more fully in the Second Part of this Book. At this point I shall in conclusion say a few words as to the peculiarities of the development of our English commercial and maritime law which I have been endeavouring to describe.

(3) The peculiarities in the development of English commercial and maritime law.

Abroad the outstanding feature in the administration of commercial and maritime law was the existence of commercial and

said about banking, in his Economic Studies 18, that it "goes on growing, multiplying, and changing, as the English people itself goes on growing, multiplying, and changing. The facts of it are one thing to-day and another to-morrow"; and this is true of very many other branches of commerce.

1 Vol. i 555.

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maritime tribunals which were staffed by both merchants and lawyers.1 It is true that in some countries, e.g. in France, there was a separate court of Admiralty for maritime causes; and that this court had a wide jurisdiction over those commercial causes which arose from or depended upon the contract of carriage by sea. But, even in these countries, other commercial causes were heard by commercial courts of the usual type. The outstanding feature of the law administered by these commercial and maritime tribunals was its dependence, firstly upon the commercial and maritime codes which had been enacted by the governing bodies of the trading centres and the seaport towns of Europe; secondly upon the usages of the merchants which had grown up in these places; and thirdly upon the authoritative treatises in which the lawyers had, with the help of the technical language and the concepts of the civil and canon law, deduced, explained, and applied the principles underlying these codes and usages. Hence we get that international character of the Law Merchant both substantive and adjective, which, as we have seen, has been noted by modern writers as its most marked peculiarity.

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In the last half of the sixteenth and the first half of the seventeenth centuries, England stood at the parting of the ways. It was by no means certain that commercial tribunals might not have been established in which the merchants had some share; and it seemed very probable that the English court of Admiralty would acquire a jurisdiction over maritime and commercial causes very similar to that acquired by the French Admiralty. If we look at the evidence for these possibilities, and then inquire why it was they were never realized, we shall be able to understand the reasons for the peculiar manner in which these two branches of law were destined to be developed in this country.

During the last half of the sixteenth century there are many indications that the tribunal which gave the most satisfaction to the merchants was one in which they themselves had some share. The new commercial companies, which were being founded by the crown, sometimes provided for a domestic jurisdiction over the commercial disputes of their members;.5 and Hudson admits

1 Above 93-96.

3 Above 95.

2 Above IOI.
4 Above 60-61.

5 Thus in 1575, Dr. Lewes, the judge of the court of Admiralty, complained of a falling off in the business of the court; one of the causes of this was, he said, a privilege which merchants trading to Spain and Portugal had got from the Queen enabling them to settle all disputes arising between themselves, or between any of them and a stranger, Select Pleas of the Admiralty (S.S.) ii xiii; above 130; for some instances see Carr, Select Charters of Trading Companies (S.S.) 70, 71— charter of merchants trading to France (1602); ibid 85-charter of king's merchants of the new trade (1616); in the charter of the African Company (1672) ibid 191-192, power was given to establish a court, "which court shall consist of one person learned in the civil laws and two merchants," and they were to try cases "according

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that in his day the merchants favoured this plan.1 The merchants who acted as consular agents in foreign lands clearly had some kind of jurisdiction over their countrymen.2 It is clear, too, from the Council records that the arbitration of merchants, or of a mixed tribunal of merchants and civilians,3 was a far speedier method of settling mercantile disputes than recourse to any of the ordinary courts. Nor was the legislature wholly blind to this fact. The commissioners, to whom the jurisdiction in bankruptcy was given by the Act of 1571, were usually a tribunal consisting partly of lawyers and partly of merchants; and, to decide disputes arising in London as to insurances, the Act of 1601 created a special court consisting of merchants and civil and common lawyers, not unlike the commercial tribunals of the Continent. Bacon tells us that it had been at first proposed to give this jurisdiction to the court of Chancery; but that another plan had been adopted, both because a suit in Chancery was too long a course," and because "our courts have not the knowledge of their terms, neither can they tell what to say upon their cases, which be secrets in their science, proceeding out of their experience." 7 During the period of the Commonwealth, also, when many extensive projects of legislative reform were being discussed, the establishment of such tribunals was advocated; and they continued to be advocated throughout this century. If such courts as these had been set up in all the to the rules of equity and good conscience and according to the laws and customs of merchants"; the Merchant Adventurers at Hamburg had a similar court, S.P. Dom. 1637, 94-95, ccclv, 186.

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1 Above 137 n. 4.

2 Dasent xviii 201 (1589)—

-a direction to the consul at Algiers to arrest two fraudulent factors, and their goods, it being stated that the consul has by virtue of his office, authority to relieve English merchants injured in this way.

3 See e.g. Dasent viii 195 (1573-1574)-Doctors of Civil Law and merchants to arbitrate as to a dispute as to the charges of a merchant's foreign agent.

4 Above 136 n. 4; cp. vol. iv 261.

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5 13 Elizabeth c. 7 § 2; Malynes, op. cit. 158; Pt. II. c. 4 I. § 6.

43 Elizabeth c. 12; vol. i 571; above 135; Pt. II. c. 4 III.

7 Spedding, Letters and Life of Bacon iii 35.

8 W. Cole, A Rod for Lawyers, Harl. Miscell. iv 323, "Having often discoursed with lawyers and others about the delays, burdens, and uncertainty of trials at law, I very seldom found any averse to merchants' courts. For what a ridiculous thing

is it, that judges in Chancery must determine of merchants' negotiations, transacted in foreign parts, which they understand no better than do the seats they sit on; in 1658, C. Lamb, a merchant, in a tract entitled "Seasonable Observations humbly offered to His Highness the Lord Protector," Somers' Tracts vi 446, suggested (at p. 458) either that a court of merchants should be established to settle mercantile disputes, or that this jurisdiction should be given to the court for trying insurance cases established in 1601.

9 Marvel, Works ii 88, tells us that in 1663 a bill was introduced "for transferreing the trialls of all forain contracts relating to Navigation from the common law to the court of Admiralty. But after two days serious and earnest Debate, the bill was rejected, and another ordered to be brought in: the sense of the House inclining to think, that those things may better be redressed by the law merchant, or lex mercatoria and by courts of Merchants to be erected in some few of the

important trading centres, and if their jurisdiction had been extended to all commercial causes, the civilians and the merchants would probably have introduced many of the principles of continental law with which they were familiar. It is obvious that, if this had happened, the whole course of the history of these branches of law would have been altered.

But, in spite of their obvious advantages, commercial tribunals of this type were never developed in England. This was due to two closely allied causes. Firstly the towns-even London-were very much less independent in England than abroad; and secondly England had a far greater number of royal courts possessing a general jurisdiction throughout the country.

(1) It was in the independent cities of Italy, Spain, the south of France, the Netherlands, and Germany that these commercial tribunals made their appearance.1 Though their jurisdiction was wide, the area over which that jurisdiction was exercised was limited. And it was this limitation of area which made the exercise of their wide jurisdiction possible. The merchants who sat in them would not have had the leisure to deal with the numerous cases arising over a large area; and the merchants who were litigants would not wish to waste their time in travelling to a distant tribunal. The courts of these cities would have lost their usefulness, if they had ceased to be courts for one limited locality. The statute which created the court to try cases for insurance recognized this when it limited its jurisdiction to cases which arose in London. But, seeing that in England all the larger litigation had, by the last half of the sixteenth century, been absorbed by the central courts, the towns had no active judicial bodies which were capable of being adapted in this way. Abroad it was in and through the judicial machinery of the towns that these tribunals grew up.2 In England there was no municipal tribunal sufficiently independent to evolve from within itself a commercial court after this new pattern.

(2) From the beginning of the fourteenth century onwards the growth of royal central courts had been steadily reducing to insignificance all local jurisdictions. During the sixteenth century the process had been accelerated by the increase in the jurisdiction of the Council and its offshoots, the Star Chamber, the Chancery, and the Admiralty. The Council might send a case to arbitration. The crown might give jurisdictional powers to a company. But it was not likely that the crown or the Council would permanently delegate jurisdiction to a municipal

considerablest ports of the nation;" see also Child, A New Discourse of Trade
(1694) 6, 131.
'Above 68-71, 95.

2 Ibid.

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tribunal. On the contrary, as the sixteenth century advanced, the jurisdiction of all these central courts tended to expand, and the competition for business became fiercer. The Admiralty, especially, was very jealous of towns which, under cover of old charters, claimed and exercised jurisdiction which competed with itself.1 And, on the whole, it was as well that the central courts adopted this attitude. The towns had so long been under the control of royal courts of many different kinds that it is doubtful whether, even if they had been given the power, they would have had the capacity, to develop and to work new institutions able to deal with the new commercial and maritime problems of the day.2

It therefore seemed likely, at the end of the sixteenth century, that the court of Admiralty would supply the place of these commercial tribunals. It is true that it was not wholly satisfactory to the merchants. It was a court in which the merchants had no part; and we can see from what happened abroad that a court staffed wholly by professional lawyers, whatever law it administered, was not very popular with the merchants.3 In the Council records there are many complaints of its delays; and to avoid its delays and the delays of other courts directions were sometimes given that cases should be submitted to the arbitration, sometimes of merchants, and sometimes of both lawyers and merchants. That these complaints were well founded is obvious if we look at the lengthy civil law procedure there used. It

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1 Thus, when London attempted to acquire jurisdiction over foreign commercial causes to the prejudice of the Admiralty, they were rebuked by the Queen, "Whereas," she wrote, "we are given to understand . . . that you take upon you to heare and determine all manner of causes and suits arising of contracts and other things happening as well upon as beyond the seas the knowledge whereof doth properly... belong unto our court of Admiraltie, fayning the same contrary to truth to have been done within some parish or woarde of that our citie of London we thoughte it meete straightly to charge and command you to forbeare to intermeddle etc."; this letter was sent in 1598, and a similar letter was sent in 1604, Marsden, Admiralty Cases 232-233; cf. Select Pleas of the Admiralty (S.S.) ii xix-xxi for the relations between the Admiralty and seaport towns claiming exemption from its jurisdiction. Similarly we meet claims to be exempt from other central courts; thus in 1595 the Cinque Ports claimed exemption from the equitable jurisdiction of the Chancellor; but it was pointed out that "the High Court of Chancery has the disposition of Her Majesty's own pre-eminent equity and absolute judgment, from which no subject can be exempt," State Papers Dom. (1595-1597) 138, cclv I.

2 Thus in 1582, in consequence of the frequency of piracy, Elizabeth suspended the Admiralty jurisdiction of all towns for three years, Select Pleas of the Admiralty (S.S.) ii xvi.

3 Above 94-95; the Act of 43 Elizabeth c. 12 shows that it was not regarded as a satisfactory tribunal for the trial of insurance cases; Mr. Marsden says, Select Pleas of the Admiralty (S.S.) ii lxxx, that, till the middle of the eighteenth century, these cases were generally settled by arbitration or by some domestic tribunal.

4 See e.g. Dasent v 250, 251 (1555); vii 23 (1558); xiii 343 (1581-1582); xx xv, xvi (1590-1591); xxvii 94, 121-122 (1597).

5 Dasent xxiii (1592)—an entry which shows that a judicial hearing was a much more lengthy affair than an arbitration; cp. ibid iv 92 (1552); ix 40 (1575); xvi 392-393 (1588); xviii 26 (1589); xxii 158-159 (1591).

6 Above 138 n. 6; below 153.

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