authoritative form the results of development made by a series of predecessors, and produced works which were the startingpoint of new developments. Grotius summed up in authoritative form the works of many predecessors, and his work has been and is the starting-point of modern international law. But in one respect his work is greater than the work of any of those to whom I have compared him. His success in putting the law governing the relations of states upon a philosophical basis which satisfied his contemporaries, emancipated that law from its bondage to theology, and distinguished it from ethics. In other words, he did more than found a new method of treating old law; he founded a wholly new branch of law. Within thirty-six years after its publication (1661) a chair was created at the University of Heidelberg to expound the doctrines of the modern international law which he had created.1

Before this date the work of Zouche--the second of our famous English international lawyers-had shown clearly that international law had become a separate body of law, and an integral part of the law of civilized states.


Of Zouche's life and works, and of the character of his mind, I have already spoken. The work which has given him enduring fame is that in which we are now interested.

It is entitled Juris et Judicii Fecialis sive Juris inter Gentes, et Quæstionum de Eodem Explicatio, and it was published at Oxford in 1650. His later tract entitled Solutio Quæstionis veteris et nova, sive de Legati delinquentis judice competente dissertatio, which was called forth by the case of Don Pantaleone Sa, also deals with one of the problems connected with the same branch of law.

Zouche's work on "Jus inter Gentes" is divided, like very many of his other books, into two parts. The first and shorter part deals with Jus inter gentes, and states the leading principles of the law applicable, first to Peace and then to War, under his usual heads of Status, Dominium, Debitum and Delictum.4 The second and longer part deals with Judicium inter gentes, and discusses particular cases under the same divisions.

The division of the law under the heads of Status, Dominium, Debitum, and Delictum is not the most happy for a book on international law. But the plan of distributing the subject matter of the law into the two parts of Jus and Judicium, though not one to be commended at the present day, was more defensible in Zouche's day, when international law was young. In the first place, it clearly set before the reader the kind of cases in

1 Les Fondateurs du Droit International 267.

3 Published at Oxford in 1657.

5 Holland's ed. of Zouche i,


2 Above 17-18.

• Above 18.

which there was a doubt, and gave some indication of how that doubt should be resolved. In the second place, it kept legal speculation in touch with actual modern facts. The same tendency to base the law on the positive practice of modern nations, which appears in Gentili's work, appears even more markedly in that of Zouche;1 and, as we might expect from his training in the common law, most markedly of all in the work of Selden.2 And Zouche could pursue this method more safely than Gentili, because Grotius had given to international law a settled position upon a philosophical basis satisfactory to the age in which he wrote. Thus both Zouche and Gentili foreshadow the school of English international lawyers which bases international law on the positive usages of nations, rather than upon a series of deductions from the a priori principles of a supposed law of nature. No doubt, as I have said, some such a priori basis was very necessary in the infancy of international law. It necessary when Zouche wrote. But it tends to become less necessary as the contents of the positive usages become more extensive and detailed. The methods and outlook of these two earliest English writers foreshadow the methods and outlook of most international lawyers in modern times.

was still


Zouche was a disciple both of Gentili and of Grotius. His books contained a critical summary of their results, and popularized their work in England and Scotland. He helped to make the new international law a part of English law; and his works have more than a merely insular fame. This was due to three very considerable merits which they possess. In the first place, in his book international law appeared for the first time in a compact and orderly form. In the second place, he so clearly defined it that no one for the future could be under any misapprehension as to its scope. In the third place, he originated the modern division of the subject into Peace and War. In his book the tradition, inherited from the mediæval books, of grouping the whole subject round the laws of War was finally abandoned. He was followed by a succession of civilians who, by the opinions which they gave to the government, helped to develop the principles which he had stated and explained. But it was not till the last century that an English writer produced a treatise


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1" Chez Gentilis et chez Selden, chez Zouch surtout c'est l'élément praticien qu'on va voir prédominer. L'école internationale anglaise fut en effet éminemment pratique," Les Fondateurs du Droit International 327-328.

2 Above 10-II.

3 Les Fondateurs du Droit International 329.
5 Ibid 322.

4 See Journal Soc. Comp. Leg. ix 353.

6 Above 51 n. 4.

7 Les Fondateurs du Droit International 276.

8 See Nys, Le droit Romain, le droit des Gens, etc. chap. vii.

on international law so comprehensive and so influential as that of Zouche.

We must now turn to the topic of commercial and maritime law. It is connected in some of its aspects with international law; and at the beginning of this period it was influenced by the civil law, and, to a large extent, was administered by the civil lawyers. But it was far more closely connected with the common law than international law then was or ever has been; and at the end of this period, there were clear signs that the common lawyers were succeeding in their attempts to oust the civilians from their control over it.



The broad outlines of our modern system of commercial and maritime law begin to emerge at this period. Though the origins of some of its rules must be sought in the collections of customs which made up the commercial and maritime law of the Germanic nations in the Middle Ages, the origins of most of its leading principles must be sought in the rules which, from a basis of Roman law, were being evolved in the great trading centres of southern Europe to meet the new needs of an expanding trade. In this section I shall endeavour to explain the way in which these principles either were received into or inspired additions to or alterations of the rules of English law.


In tracing the history of the courts which, at different periods, have administered the commercial and maritime law of this country,1 I have necessarily touched upon some of the leading features of these two branches of the Law Merchant. Their most striking and most permanent feature was, as we have seen, their international or, as I should prefer to call it, their cosmopolitan character. In the Middle Ages this feature is not peculiar to the Law Merchant. The universality of the civil and canon law, the universality of the political religious and ethical theories which their exponents assumed, and the broad similarities in the actual conditions of life which prevailed throughout Western Europe, give to many branches of medieval law this cosmopolitan character. If we look at the legal rules which

1 Vol. i 526-573.


2 Ibid 526-530; below 61-62.

3 In the early Middle Ages the idea of a law personal to certain classes of people which followed them wherever they went (cf. vol. ii 3 n. 2) had no doubt some influence. Thus in the Lex Visigothorum 11. 3. 2 (cited Goldschmidt, Handbuch des Handelsrechts 105 n. 32) we read, "Ut transmarini negotiatores suis et telonariis

determined such matters as the position in the state held by the great feudatories, the various kinds of tenure, or the condition of the labouring classes, we can see that they share this character with the Law Merchant. No doubt there are broad differences between the laws upon these topics which prevailed in the various countries of Europe, just as there were broad differences in their political conditions. But it is well to remember that the rules of the Law Merchant were not the same all over Europe. One set of maritime customs prevailed in the northern countries of Europe, another in the Mediterranean towns and seaports;1 and there were small varieties in the commercial and maritime laws of the different states in both these parts of Europe. Why then have the cosmopolitan characteristics of the Law Merchant always seemed to lawyers of many different ages and countries to be its most striking feature?


It seems to me that the cosmopolitan features of the Law Merchant, though existing alike in mediæval and in modern times, are rather a modern than a mediæval peculiarity. I very much doubt whether these features would have seemed peculiar to a mediæval merchant or lawyer. The merchants were simply one of the many sharply defined classes of mediæval society; 3 and the customs of all these classes possessed cosmopolitan characteristics similar in kind if less in extent; while the civil and canon law possessed them in a far higher degree. But to et legibus audiantur. Quum transmarini negotiatores inter se causam habent, nullus de sedibus nostris eos audire præsumat, nisi tantum modo suis legibus audiantur apud telonarios suos '; this idea of a personal law may have had some influence in earlier days upon the manner in which commercial usages spread over Europe; but it was mainly the influences mentioned in the text which are at the root of the cosmopolitan character of the Law Merchant of to-day; as Goldschmidt, op. cit., and Huvelin, Essai Historique sur le droit des Marchés et des Foires 384, 385, point out, this passage does not refer to judges elected by the merchants; these telonarii were royal officials appointed to collect the dues payable, Huvelin, op. cit. 389 n. 2.

1 Vol. i 527-528; below 100.

2 Mitchell, The Law Merchant 1-94 and authorities cited 8 n. 1; as Mr. Mitchell says, at p. 9, though "Everywhere the leading principles and the most important rules were the same, or tended to become the same," yet that, "each country, it may almost be said each town, had its own variety of Law Merchant," all being, however, "varieties of the same species"; thus we often find that cases are to be decided "secundum consuetudinem curiæ," see the Breve Pisani Communis (1286) i. c. 33; Statuta Pisani (Ed. Bonaini) i 89, 90; the Breve Consulum Curiæ Mercatorum (1305) § 82, ibid iii 59, 60. The Statuta Communis Bononiæ (1250) cited Goldschmidt, op. cit. 173 n. 105, direct " quod jus fori et mercati reddatur secundum consuetudinem fori sive mercati "; Straccha, De Mercatura (ed. 1553) 157b, talking of the contract of hire says, "Contractus a consuetudine contrahentium et loci interpretationem recipiunt"; the Munimenta Gildhallæ (R.S.) II. i 206 speaks of the "usus et consuetudines feriarum et villarum mercatoriarum"; the Red Book of Bristol 62 notes that the methods of dealing with absent defendants are very various, so that, "nullus omnino processum legis mercatoriæ in ea parte scire nec cognoscere poterit." The "Breve "-a document we frequently meet with in collections of Italian laws-was a short manual containing the oath of the Magistrate and his duties, Pardessus, Collection des Lois Maritimes iv 557; generally each Art had its Breve.

3 Vol. ii 464-466; vol. iii 456-458; vol. iv 402.

the merchant or lawyer of modern times, accustomed to separate states and separate systems of law, the retention of these features was and is a peculiar feature; and, therefore, modern lawyers from the seventeenth century onwards have noted it as the most distinctive feature of that law. Why then, we must ask, were the cosmopolitan features of the Law Merchant retained and even emphasized at a time when other branches of law were losing their cosmopolitan character ?

There are, I think, three sets of reasons for this phenomenon. The first set of reasons is connected with the necessary and permanent conditions of trade, the second set is connected with the conditions of trade in the Middle Ages, and the third, and in my opinion, the most important set, is connected with the manner in which the Italian commercial law has permeated the whole of Western Europe.

In the first place, any sort of trade means travel, and trade carried on by sea means travel over large distances. Men of different countries meet on common businesses and under similar conditions. The business of carriage by land or by water, the business of exchange, present similar problems and generate similar rules. On the other hand, the organization and the activities of the more stationary classes of society tend to develop small differences which gradually crystallize into very different rules of law; and the growing separation between nations, which necessarily accompanied the rise of the modern territorial state, tended to strengthen these differences.

In the second place, the lawlessness of mediæval life necessitated the formation of unions of traders in gilds or corporations. These corporations combined to obtain from the ruling powers

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1 The earliest statement comes from 1473; in Y.B. 13 Ed. IV. Pasch. pl. 5 the chancellor said the case should be decided "secundum legis naturam qu'est appell par ascuns ley Marchant, que est ley universal per tout le monde"; but it is from the earlier part of the seventeenth century that this characteristic is most insisted on; see Gentili, De Jure Belli, Bk. i c. 1 (Holland's Ed. pp. 7, 8), "Et haec gentium juris (mercato res) non sane neglexerint, quæ valde ad ipsos spectaverint, et ad commercia ipsorum. Sunt scilicet juris gentium commercia. Et sic itaque notum de populis omnibus esse potuit; Malynes, Lex Mercatoria 2, "Lex Mercatoria in the fundamentals of it is nothing else but (as Cicero defineth true and just law) Recta ratio, natura congruens, diffusa in omnes, constans, sempiterna. . . Howbeit some do attribute this definition unto jus gentium or the law of Nations. being truly examined, we shall find it more naturally and properly belongeth to the Law Merchant ; Davis, Impositions (ed. 1656) c. 3, "The Law Merchant, as it is a part of the Law of Nature and Nations, is universall and one and the same in all countries in the world"; Zouche, Jurisdiction of the Admiralty Asserted, Assert. I, cites Davis and says that it is clear from his words that, "the causes concerning merchants are not now to be decided by the peculiar and ordinary laws of every country, but by the general law of nature and nations"; if we do not get in the books of continental writers like Straccha, Marquardus, or Ansaldus such clear statements of the cosmopolitan character of the Law Merchant it is because, as the authorities they cite show, they took it for granted.

But, the matter

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