Constitution.

By the end of the eleventh century a large number of the Italian towns had obtained their independence; and the merchants who inhabited them had got a free hand to organize their government after their own fashion.1 Generally we find at the head of the government consules de communi assisted by a small council. These consuls absorbed all the powers of the older rulers-at Genoa and Pisa, for instance, they were the direct successors of the counts. In spite of domestic dissension, the result of this independence was a great development of commerce and industry.3 In its train, capital, banks, and all the financial organization which the existence of banks implies, began to make their appearance; and with the growth of the prosperity and size of the town a more complex organization of government became necessary. In 1154 we first hear at Milan of consules mercatorum.5 When first they made their appearance they acted as the deputies of the consules de communi, and, in this capacity, they performed various political administrative and judicial duties. In the exercise of these duties they acted as state officials. But they fulfilled also other duties in another capacity. They were at the head of the numerous gilds or arts into which the merchants were divided; 7 and these gilds or arts assumed, in Italy as elsewhere, wide powers to issue regulations as to the conduct of their members, and to decide their legal disputes. Thus the consules mercatorum exercised large powers over trade and a jurisdiction in commercial cases. These powers and this jurisdiction were not at first exercised by them in their capacity as officials of the city; they

1 Morel, op. cit. 22-24.

2 Ibid 24, 25.

8

6

3 Pardessus, op. cit. i lxxviii, lxxix.

9

4" Sous la protection d'un pavillon partout respecté, les richesses de l'Orient vinrent s'entasser dans les villes du littoral; dans les villes de l'intérieur, la fabrication des armes et des étoffes de laine créa des capitaux de réserve que des banquiers, célèbres sous le nom de Lombards, firent rapidement déborder sur toute l'Europe occidentale," Morel, op. cit. 26.

5 Ibid 29.

6 Ibid 30-32.

7 At Pisa we read of the Curia ordinis maris, the curia artis lanæ, the consuls of the seven arts and the captain and consuls of the Sardinian ports, Breve Pisani Communis i c. 33; Bonaini, op. cit. i 89-90. At Florence we read of seven greater arts; and "une sorte de hiéarchie s'etablit entre eux "-First came the art of the judges and notaries, then (2) the merchants of the Calimala, (3) the Cambiatori, i.e. exchangers and bankers, (4) the manufacturers of wool, (5) the medical profession, (6) the manufacturers of silk, (7) the furriers and skinners, Perrens, Histoire de Florence ii 65. The Calimala gild, which played so great a part in the History of Florence, consisted of those who made fine woollen cloth; they got their name from the street in which they carried on their industry-"On l'appellait quelquefois Strada francesca mais plus souvent Calimala parce qu'elle conduisait à un mauvais lieu"; and, as M. Perrens says, this etymology appears clearly right as in old Italian, as in Spanish, "calle means street, op. cit. i 194.

8 See e.g. Bonaini iii 863-889 for the Breve Artis Fabrorum of 1305.

• Thus in the constitution of Milan of 1216, cited Goldschmidt, op. cit. 165 n. 74, it is said, "Nec consules negociatorum intelligantur esse officiales communis Mediolani."

were limited to the members of their own gild;1 and the city courts therefore exercised ordinary jurisdiction in commercial cases. During the fourteenth century these powers and this jurisdiction became gradually more extensive. They became a recognized department of the civic constitution, and their courts were recognized as a part of the judicial machinery of the state. It followed that their enactments upon commercial matters became part of the law of the city, and that the jurisdiction of their courts excluded that of the ordinary

courts.

5

3

4

The process by which the consules mercatorum attained this position in the various Italian towns was very similar, and it was somewhat as follows: The various gilds were very jealous of their powers. They compelled their members by severe penalties to obey their orders and to submit to their jurisdiction. Sometimes they even compelled foreign merchants residing in the city and trading with their members to promise to submit to their authority, which promise came in time to be implied from the fact of residence. But the gild, being a voluntary association, was powerless if a contumacious person acquiesced in expulsion. This defect was remedied by a closer alliance between the various gilds. They agreed to exclude certain classes of commercially undesirable persons; and finally they united in an amalgamated society of gilds which was called the Mercanzia. The executive body of this amalgamated society-the Officium Mercanziagenerally consisted of the consules mercatorum, who were at the head of its various component gilds. During the course of the fourteenth century an increasing number of cases were submitted by the civic authorities to the arbitration of this body;" it was finally recognized by them as an organ of the State

6

8

1"Privée, contractuelle, corporative telle nous apparait primitivement la juridiction de l'Art," Morel, op. cit. 38; Mitchell, op. cit. 41, 42.

2 Ibid 42; thus the Statutes of the Calimala Art threatened with severe penalties any member who resorted to the ordinary courts, ibid 42 n. 1; it follows that the ordinary courts had this jurisdiction; in 1233 the Pisan curia maris was forbidden to interfere with cases that belonged to the curia legis, ibid 46.

a Morel, op. cit. 37-52; Mitchell, op. cit, 41-48; see Valroger, Les Consuls de la Mer au Moyer Age, Nouv. Rev. Hist. xv 43-58, for the development of the Fisan curia maris; as M. Morel says, op. cit. 53, "Nous sommes constamment reporté à l'histoire particulière de Florence, mais il n'est pas téméraire de généraliser et d'étendre les conclusions que nous avons formulées à la grande majorité des villes italiennes. A quelques détails près, l'histoire de la constitution des tribunaux de commerce est la même dans toutes les cités de la Péninsule."

4 Mitchell, op. cit. 42 n. 1, citing a statute of 1301 made by the Calimala Art; Morel, op. cit. 43.

5 Ibid 52.

6 Ibid 39-40.

7 Ibid 40-41; for the mode of the constitution of this body at Genoa in 1403-1407 see Leges Genvenses, Monumenta Historiæ Patriæ xviii col. 535-536.

8 Morel, op. cit. 35, 36, and authorities there cited.

Government;1 the ordinary courts were forbidden to interfere with it; and its orders, its regulations, and its judgments were therefore binding upon all the members of the state and upon foreigners resident therein.3

The evolution of the bodies which made and administered maritime law was very similar. Genoa had its Officium Gazariæ,* and Pisa its Curia Maris;5 and, in the course of the fourteenth and fifteenth centuries, most of the seaport towns of Italy had acquired bodies of maritime law administered by special maritime consuls. It is the Pisan Curia Maris which is the earliest of these bodies to possess judicial as well as administrative functions; and, historically, it is the most important, because it was the type and model of the maritime courts of the kingdom of Aragon, and therefore of the city of Barcelona." At Barcelona this maritime court became a general commercial court; and it developed the famous body of laws known as the Consolato del Mare. This body of law, in spite of grave defects in its arrangements and composition, has perhaps had a larger influence on the maritime law of Europe than the similar bodies of law

1 Mitchell, op. cit. 43 n. 1, citing a statute of Brescia of 1429; for Genoa see Leges Genvenses, Mon. Hist. Pat. xviii col. 538, statutes of 1403-1408; at Genoa, as at Brescia, they could decide questions of their own competence, Leges Genvenses col. 542, Stat. Merc. of Brescia 1429, cited Mitchell, op. cit. 44 n. I.

2 Ibid 43 n. 1, citing statutes of Mantua of 1450, and of Brescia of 1429; Leges Genvenses col. 538.

3 See ibid 619-620 for rules as to jurisdiction where foreigners were parties; for similar rules in other towns see Mitchell, op. cit. 44, 45.

4 So called because it was appointed to look after Caffa, its trading centre in the Black Sea, the natives of which were known as Chazares; it assumed jurisdiction over navigation generally; when Genoa lost these colonies these duties were turned over to the Officium Mercanziæ, Pardessus, op. cit. iv 421-424, 432, 434; for the rules governing it see Leges Genvenses cols. 741-795.

5 For the Breve Curiæ Maris of 1305 see Bonaini, Statuti Pisani iii 351-445.

Mitchell, op. cit. 45-50, 56-64; cf. Valroger, op. cit. 43-57, 194-205; the leading work is that of Schaube, Das Consulat des Meeres in Pisa; it was the executive body of the Ordo Maris, which was originally a private league of defence against pirates; it came to look after all maritime matters, and eventually developed into an organ of the state.

7 See the passage from the Judicial Order of the Court of the Consuls of the Sea, Black Book of the Admiralty (R.S.) iv 473-475 cited below 76 n. 3; and cf. ibid 463, 469, 483, 493; these regulations were issued between 1336 and 1343 for the guidance of the consuls of the sea at Valencia, and prefixed to the first edition of the Consolato del Mare printed at Barcelona in 1494, Black Book iv 451 n. 1.

8 Printed in vol, iii of the Black Book; and for a short account of it see Desjardins, op. cit. 60-63.

9 Ashburner, The Rhodian Sea Law cxx-cxxi says that not only is it verbose and often futile but that it is also academic-" the greater part of the work consists of ingenious suggestions by learned men, which were probably never practised by any mariner or enforced by any court"; on the other hand, Pardessus, op. cit. ii 1 n. 2, looking at its later influence, takes a very different view, "Il est impossible de méconnoitre la sagesse de presque toutes ses dispositions, qui sont devenus la base des lois maritimes actuelles de l'Europe."

1

developed by the Italian seaports. This extensive influence of the Consolato del Mare is due partly to its fullness-it embodies ideas taken from many cognate sources; 2 partly perhaps to the commanding position of the Spanish monarchy in the sixteenth and early seventeenth centuries.

It is not only in the Spanish seaport towns that we can trace the influence of the Italian institutions. Their influence was equally great upon Marseilles, and the neighbouring trading centres of Montpellier, Nimes, and Narbonne. In all these towns commerce and industry were organized in a similar manner; and all possessed consuls who administered commercial law to the merchants. The crusades led to the establishment of intimate commercial relations between these trading centres and the Italian cities on the one hand, and the eastern ports of the Mediterranean on the other. Their consuls were established in these ports; and, in the Latin kingdom of Jerusalem, separate commercial and maritime courts were established to decide the cases of the merchants of all nations who resorted there.5

4

In the earlier mediæval period, when the powers of the gilds were restricted to their own members, their commercial jurisdiction necessarily depended on the personal status of the litigant quite as much as upon the nature of the question at issue. But, when these amalgamated societies of merchants became recognized as an integral part of the constitution of their several states their competence came to depend solely upon the nature of the question at issue. They necessarily assumed jurisdiction over all questions commercial, irrespective of the status of the parties; and thus there was evolved the wholly new conception of a separate commercial and maritime law depending mainly on mercantile custom and usage.

6

1 This was so even in the sixteenth century-Valroger, op. cit. 38 n. 4 says, "C'est ainsi qu'a Ancône Straccha écrivand au milieu du xvie siecle ne connait que le Consulat, et ne parle pas de l'ancien droit d'Ancône.

66

2 Pardessus, op. cit. ii 20-it is more complete than any other maritime code puisqu'il a emprunté de chacune d'elles ce qui manquoit aux autres."

3 Morel, op. cit. 131-143; cf. Goldschmidt, op. cit. 222.

* Marseilles got trading privileges throughout the kingdom of Jerusalem in 1117 and 1136, Pardessus, op. cit. ii. viii.

5 The chapters on maritime law from the maritime Assizes of Jerusalem are printed in the Black Book of the Admiralty (R.S.) iv 498-519; the Latin kingdom at Jerusalem had both a maritime court-La Cort de la Chaene-and a mercantile court-La Cort de la Fonde, Black Book iv cv.

6 Morel, op. cit. 52-53-"A force d'élargir le champ d'action de l'officium mercanziae on est arrivé a lui donner, en matière de commerce, une compétence personelle à peu près universelle, et petit a petit, le caractère de cette compétence

a subi une modification profonde. De personelle elle est devenue réelle... Toute convention passée par des marchands fut réputée convention commerciale et le tribunal qui, à l'origine, etait special aux marchands, devint special aux affaires commerciales."

The Evolution of the Law.

If we would understand the nature of this separate commercial and maritime law created by these organized bodies of merchants, we must glance briefly at the various ways in which they built up its different parts.

(i) In the first place, these bodies issued numerous and detailed orders to ensure the proper conduct of various branches of commerce and industry. Their power in this direction was wide. It was admitted that it extended even to negativing or altering a rule of the civil law. But it was subject to certain conditions. In the first place, an order must not directly contravene a law made by the civic authorities.2 In the second place,

5

1

it must be just and reasonable. In the third place, it must relate to matters mercantile. No doubt also particular towns might impose special conditions. But these three general conditions, laid down by the lawyers of the fourteenth and fifteenth centuries, were a generalization from the usual practice of the Italian towns of this period; and, through the works of the sixteenth and seventeenth century writers on commercial and maritime law, they passed into the general law of Western Europe.

Subject to these conditions these powers were extensively used. The qualifications of practising lawyers,' the businesses of bill-broking, banking, and pawn-broking,10 the equipment,

8

1 Straccha, De Mercatura 250b-Is an enactment valid, " Quod contra scripturas mercatorum non possit objici exceptio præscriptionis ?" "Et probat valere cum possit aliter quam jus commune decrevit statuere."

2 Leges Genvenses, Mon. Hist. Pat. xviii cols. 536, 817; cf. Straccha, op. cit. 170b, "Nauticam consuetudinem præcipue spectandum esse dum modo legi non adversetur, hoc est a lege non reprobetur.'

3 Ibid 250b cites Baldus as saying, "non possint decernere quod naturaliter et evidenter sit injustum ; and at p. 251b he gives examples-" Delendum et illud statutum quod vetat opus ab uno cœptum ab alio perfici posse absque consensu ejus qui inchoaverit ; et ille lex improbanda est quæ certas tantum personas artem aliquam, seu exercitium facere jubet, reliquos vero vetat."

* Ibid 248, "Sed hæc intelligenda sunt, ut statuere possint in his in quibus jurisdictionem habent, pertinentibusque ad mercaturam et ipsos mercatores, non autem in his quæ remota sunt ab eorum officiis et professione, exempli loco si super hereditatibus decernerent."

5 Thus at Bergamo-Gild Statutes c. xxx cited Mitchell, op. cit. 31 n. 3-the statutes of the gild were to have the same force "ac si facta forent per Consilium Generale Communis Pergami," and sometimes they were expressly allowed to override the ordinary law, Mitchell, op. cit. 32, 33, citing Lattes, Il Diritto Commerciale nella Legislazione Statuaria 75 n. 10.

6 Thus Marquardus, Tractatus Politico-Juridicus de Jure Mercatorum et Commerciorum (ed. 1662) Bk. iii c. ii § 1, allows them very large powers, "Primo igitur dubitandum non est quin Collegia Mercatorum approbata, singulares leges, consuetudines, ordinationes, et statuta specialia et singularia, etiam sine superioris confirmatione, condere, sibique jus proprium contra statuta generalia illius Civitatis facere possint.'

7 Leges Genvenses, Mon. Hist. Pat. xviii col. 725-regulations as to the College of Judges.

8 Ibid col. 570-rules as to payment of Bills of Exchange. Ibid cols. 544, 545, 656-658.

10 Ibid col. 622.