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from king or feudatory-the privileges which they needed to enable them to conduct their trade. When they met to trade in fairs or markets, they got a special protection against lawlessness, and a special set of judicial privileges, which enabled a speedy justice to be administered to all who frequented the fair or market. If they were settled bodies carrying on trade in some defined place they got special privileges to regulate the affairs of their trade. No doubt many other classes of men got their peculiar franchises and privileges in the Middle Ages-notably the landowners great and small. But their franchises and privileges were often used as a means to assert a turbulent independence of all authority. They were the great impediments to the establishment of a settled order and a uniform law; and as soon as a strong central government arose, they went down before it. But the merchants were the natural allies of efficient government; and conversely such a government was naturally inclined to show favour to men who increased the wealth of the country, and from whom a large revenue could be drawn. Thus the growth of the power of the state, which was fatal to many franchises and privileges, was favourable to the growth of the franchises and privileges possessed by the merchants. They were allowed to create and to develop their own commercial and industrial organizations, and their own machinery of justice. It is obvious that these liberties increased the existing tendencies to evolve similar rules to govern similar mercantile transactions.

In the third place, the influence of the Italian cities was more marked and more permanent in the departments of commercial and maritime law than in any other branch of law. This is due firstly to the fact that, all through the Middle Ages, Italy was the centre not only of the legal but also of the commercial life of Europe; and secondly to the fact that in Italy a unique system for the settlement of mercantile disputes had been devised, which gave due weight at once to the exigencies of commerce, and to the establishment of technical legal rules based upon the facts of commercial life. We shall see that for these reasons, the Italian solutions of the commercial and maritime problems to which a highly organized system of industry and commerce give rise, and the Italian machinery for applying these solutions to concrete questions, have had a direct and enduring influence upon the law and the institutions of many European' states. From the thirteenth century onwards these Italian influences were directly affecting all the countries both of Eastern and Western Europe. The settlements of Italian merchants in many

1 Vol. i 535-538; below 86-88.

3 Below 90-96.

2 Vol. i 540-543; vol. iv 321-324.
4 Below 67-85.

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countries in Europe, and their presence at the great fairs familiarized the nations of Europe with their commercial methods, their commercial organization, and their commercial law; and when, in the sixteenth century, the new geographical, political, and religious conditions created new centres of commerce, the reception of the Italian methods and organization and law, already begun, was completed.3

The development of commerce and industry, and the importation from Italy of legal principles adequate to rule this development, proceeded on similar lines in all the countries of Western Europe. This movement was not directly affected by religious and dynastic wars, and the clashing of the new independent states into which Europe was now definitely divided; for though religion and politics find it necessary to concern themselves with commerce, commerce is not directly concerned with either. Thus, while the canon law was ceasing to be a universal code for the whole of Western Europe, while the different countries of Europe were becoming more and more separate, and while, in consequence, many branches of their law public and private were losing some of that cosmopolitan character which they had possessed in the Middle Ages, commercial and maritime law were becoming not less, but more cosmopolitan. They were acquiring their modern international character.

This permeation of Italian commercial law was facilitated by the Reception of Roman law-indeed it is one, and perhaps the most important phase of that Reception. We shall see that the rules of this commercial law were very far from being pure Roman law-that they represented living mercantile custom far more than any of the rules of the civil and canon law.5 But mercantile customs had been worked up into technical rules of law in an atmosphere and with the help of juridical concepts derived from these two systems. It was, in fact, the application of these juridical concepts to the ever-developing mercantile customs of Italy, which had enabled the merchants and statesmen and lawyers who applied them, to construct a system of mercantile courts and a permanent body of mercantile law-just as in the England of the thirteenth century the application of similar juridical concepts to our native customs had enabled the lawyers of the school of Bracton to establish the jurisdiction of our common law courts, and to lay the foundations of our common law. This mercantile law, therefore, could easily be acclimatized in states which had

1 Below 95, 113.

3 Vol. iv 244-246; below 129 seqq. 5 Vol. iv 243; below 77-85.

7 Vol. ii 269-270

2 Below 92.

4 Vol. iv 244-245.

6 Below 77-85.

It was

received the technical rules and ideas of the Roman law. not so easily acclimatized in England, because England had never received these technical rules and ideas to anything like the same extent.1 1 In England therefore the reception of these rules and ideas was slower and more difficult. But though this has led to the growth of considerable differences in the mode of the development and in the ultimate form of the rules themselves, they were received in England; and therefore, in England as elsewhere, it is to them that we must look for the origins of our modern commercial and maritime law.

The manner in which these branches of English law have originated, and the peculiarities in their development, determine the manner in which we must trace their history. I shall relate it under the following heads: Firstly, the Italian Law Merchant and its reception throughout Europe in the sixteenth century; and secondly, the beginnings of English commercial and maritime law.

The Italian Law Merchant and its Reception throughout Europe in the Sixteenth Century

The Romans possessed no separate system of mercantile tribunals and mercantile law. The ordinary law and the ordinary judicial tribunals sufficed both for traders and for non-traders, because both the law itself and the procedure of the tribunals had been gradually adapted to the needs of commerce,3 and because the peace maintained by the Roman Emperors gave to traders an ample security. Thus the commercial and maritime law of Rome must be sought in many different parts of the Corpus Juris. Such topics for instance as sale, hire, bankruptcy, agency, or shipping, are not grouped by themselves, but form simply a part of the ordinary law. To the English lawyer this may not appear to be strange. But in point of fact it is strange, for the English and the Roman systems are perhaps the only two systems in the world which have developed their commercial and maritime law as part of their ordinary law. On the Continent these bodies of law have been developed by a separate set of tribunals, and at

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1 Vol. iv 228-239, 285-289; below 151-154.

2 Morel, Les Juridictions Commerciales au Moyen Age 14, 15.
3 Ibid 15-17.

4 Ibid 19 n. 1, citing Thaller, Annales du Droit Commercial (1892) 156, "Le commerce n'a pas à se façonner sur un type corporatif, quand les pouvoirs public placés au dessus de lui savent le protéger et le comprendre."

5 Pardessus, Collection des Lois Maritimes i 85-132, has collected all the relevant passages from the Corpus Juris which relate to maritime law; for a short account see Desjardins, Introduction Historique à l'Etude du Droit Commercial Maritime 12, 13.

VOL. V.-5

the present day are contained in separate codes.1 The explanation of this phenomenon must be found in the manner in which the commercial law of modern Europe has grown up.

In the dark days which followed the fall of the Roman Empire commerce did not wholly cease, but the calling of the merchants became adventurous, and their profits precarious. In order to obtain some sort of security they followed, as M. Morel has pointed out, two sets of expedients. Either they got control of the government, or they allied themselves with royal power and obtained franchises and privileges which enabled them to carry on their trade. The first was the course pursued by the merchants of the Italian cities; and their example was soon followed by certain towns in the Spanish Peninsula and in the South of France. The second was the course pursued over the greater part of France, in Germany, in Holland and the Netherlands, and in England. In both cases the result was that a separate commercial and maritime law, based primarily on mercantile usage, gradually emerged, and expanded to meet the needs of an expanding trade.

In all departments of industry and commerce the Italian cities and the cities of the South of France were in the Middle Ages easily pre-eminent. From an early date they had gained either their complete independence, or a large liberty to make and administer the commercial laws which were suited to their needs. When other towns-French, German, Flemish, and Dutch -began to compete with them, the franchises and privileges which these towns had acquired enabled them to assume or to obtain power to modify their commercial organization and their commercial laws after the Italian model. Thus the mediæval distinction between commercial and ordinary law was emphasized, and, as I have already pointed out, the cosmopolitan character of the Law Merchant was stereotyped.

The position of the English merchants was in some ways peculiar. They had their peculiar customs and their peculiar privileges. But England had a strong common law which was jealous of rival jurisdictions, and an active legislature which made

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1In Italy, however, special commercial tribunals were suppressed in 1888, and commercial cases are now heard by the judges of the ordinary courts, Desjardins, op. cit. 455.

2 Huvelin, Essai Historique sur le droit des Marchés et des Foires 143, 144.

3 Op. cit. 20, 21; cf. Huvelin, op. cit. 386-387, "Deux systèmes sont possibles : ou bien ces tribunaux sont élus par les marchands eux mêmes (c'est la conception moderne des tribunaux de commerce), ou bien ils émanent, au même titre que les autres juridictions, de la puissance publique. . . . Ces deux systèmes ont existé, selon les époques, soit à l'exclusion l'un de l'autre, soit parallélement, et ils ont aussi, parfois engendré un système mixte."

4 Vol. i 528-529, 540-541; vol. ii 372-375, 385-394; below 104-106.

common law for the whole country.1 Moreover, England was commercially a backward country up to the first half of the sixteenth century. We have seen that it was not till the second half of the century that we get any great development of native commerce and industry; 2 and it was not till comparatively late, therefore, that the need to acquire an improved commercial law arose. When the need arose doctrines of foreign commercial law were adopted; but not in the same wholesale way as they were adopted abroad; and the continental organization of commercial courts was not introduced. Just as the influence of the continental reception of Roman law was far less considerable in England than it was abroad, so was the influence of the foreign commercial law, and the foreign machinery for deciding commercial disputes. We shall see that at the very time when English trade began to expand, the common law was regaining more than all its old activity; and the legislature worked mainly in sympathy with it. But since most of the legal ideas which underlie our modern commercial law were adopted from abroad, it is clear that we cannot understand their origin unless we keep before our minds the continental environment in which they arose. I shall therefore give a brief sketch (1) of the commercial organization and the leading characteristics of the commercial law of the trading centres of Italy and the south of Europe; and (2) of the reception by the cities and states of northern Europe of the Italian ideas. shall then be in a position to understand the somewhat peculiar position of English commercial law at the beginning of the sixteenth century, and the manner in which it was developed during this period.

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We

(1) The commercial organization and the leading characteristics of the commercial law of the trading centres of Italy and the South of Europe.

The pecularities of the constitutional, commercial, and legal development of the Italian Republics in the Middle Ages led to the growth of unique mercantile organizations, which were permitted by the state to exercise supreme or almost supreme control over mercantile and maritime affairs. The manner in which they were constituted, and the powers which they gained determined to a large extent the nature of the law which they administered. I shall, therefore, in the first place say something of their constitution, and in the second place of the methods by which they gradually built up the law.

1 Vol. ii 306-307, 310 396-400.

3 Ibid iv 237-239, 285-289.

5 Vol. iv 174, 187-189; below 421-423, 492-493.

2 Vol. iv 318-319.
4 Below 143-144.

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