licensing, loading, and registry of ships, the nature and variety of papers which trading ships must carry,1 the business of underwriting 2-occupy a large space in the statutes of the Italian towns. Besides, there are detailed rules for the conduct of all the different wholesale and retail trades carried on in the town;3 and some of these rules are very similar to the rules made by other towns in Europe-in Italy, as elsewhere, the law intervened to secure honest and skilled workmanship, reasonable prices, and fair wages.* But the greater volume and the more elaborate organization of trade gave rise to elaborate regulations upon such matters as shipping, banking, insurance, and bills of exchange, some of which do not appear in England till quite modern times.

(ii) In the second place, they entered into diplomatic relations with foreign countries and with neighbouring cities to secure for their own traders privileges, protection, and redress. Of their relations with the more distant foreign countries I shall say something more later. Here I must say something of the intimate commercial relations which were in this way established between the chief trading centres in Italy and in southern Europe.

[ocr errors]

In the days when the terms "foreigner" and "enemy were synonymous it was natural that a wrong done by the citizen of a foreign state should be revenged upon all the citizens of that state. Even when this stage was passed, and peaceful relations between foreigners had become usual, the old idea survived in another form, which prevailed almost universally in Europe in the early medieval period, and, in some states, survived very much later. In this form it gave rise to the principle that if a citizen of country A had been wronged by a citizen of country B, and was unable to obtain redress, he might get from the government of his state the right to get compensation from the property of any citizen of country B whom he could find. In


1 Leges Genvenses cols. 638-639; 741-795-the rules as to the Officium Gazariæ ; cf. Calendar of State Papers (Venetian) i lxi-lxviii for the Flanders voyages undertaken by the Venetians, and the elaborate supervision exercised by the Council over all the details of these expeditions.

2 Ibid cols. 572, 643-644.

3 Statuti Pisani (Ed. Bonaini) iii 123—Breve spetiariorum; 125-Breve cappellariorum ; 128-Breve tinctorum; 133-Breve artis speculariorum; 136-Breve sartorum; cf. Leges Genvenses cols. 669-730.

4 Vol. ii 468-469; vol. iv 321-324.

5 Vol. i 543 n. 7; vol. ii 394; Huvelin, Essai Historique sur le droit des Marchés et Foires 441-443; Morel, op. cit. 44-48; Mitchell, op. cit. 121-124; Goldschmidt, op. cit. 121, 122; Mas Latrie, Le droit de marque ou droit de représailles au moyen âge, Bibliothéque de l'Ecole des Chartes 6e serie II. 529 seqq., IV. 294 seqq.; for an English case of 1418 turning on this right of reprisals see Select Cases before the Council (S.S.) 95.

Italy this principle was known as the right of reprisals.1 Obviously the remedy which it provided was clumsy, and open to grave abuses. In England, as between English merchants, it had been abolished by a statute of 1275.2 What Edward I.'s statute did for England was effected for Italy in the thirteenth and early fourteenth centuries by negotiations conducted by the officials of the Mercanzia of the leading towns. The Mercanzia undertook to render the right unnecessary by giving legal redress for the wrongs inflicted on or suffered by foreigners, as well as for the wrongs inflicted on or suffered by their own citizens.3


The working of these treaties was helped materially by the institution of the consules hospites who, from the latter part of the thirteenth century, were appointed in the trading centres of the Mediterranean, to look after the interests of the foreign merchants resorting to them. These consuls were appointed from among the citizens of the state in which they exercised their functions. Originally they acted as the hosts, the defenders, and the judges of their respective communities of traders. But, as commerce increased, they necessarily ceased to be literally the hosts of the merchants whom they represented; and, as the law administered in these trading centres became uniform and applicable to foreigners and citizens alike, their judicial functions lost their importance. Thus they came to occupy the position assigned to them by our modern international law of advisers and assistants to the citizens of the nation whom they represented.


The result of these developments was the evolution of a number of rules for deciding cases in which a foreign element existed,' which are at the root of our modern systems of Private International law. In the sixteenth century these rules, evolved principally in the Italian towns, were directly instrumental in inducing other European states to abandon the custom of reprisals, to appoint consuls to look after the interests of their citizens in foreign states, and to adopt some of the Italian rules for the


1 Thus in the Leges Genvenses col. 539 the Officium Mercanzia is directed always to take legal advice before a grant of reprisals is made.

23 Edward I. c. 23; below 93, 98 n. 2.

3 Morel, op. cit. 47, 48; cf. the provisions of the Florentine Statute della Mercanzia of 1312, cited Mitchell, op. cit. 123, to the effect that, "Treaties be made with any land or community of Tuscany or elsewhere as might seem good to the five councillors [of the Mercanzia] that, as between the commune of Florence and the said communes, reprisals cannot and shall not be granted or conceded for any cause, save in case of robbery only."

Schaube, La Proxenie au moyen âge, Revue de Droit International (1896) 525556; they must not be confused with the consules missi and the consules electi, below 92 and n. 4; cf. Calendar of State Papers (Venetian) i lv, lvii. 6 Ibid 532-533, 542.

5 Schaube, op. cit. 529.

7 See e.g. Leges Genvenses, Mon. Hist. Pat. xviii cols. 619, 620.
8 Below 93, 98.
9 Below 92, 150.

decision of cases in which a foreign person or a foreign transaction was involved.

(iii) In the third place, the close relations which thus existed between the bodies in the various towns which controlled commerce and industry, enabled the towns to create gradually, from the similar yet separate customs of their mercantile and maritime courts, a uniform body of mercantile and maritime statutes. It was obviously important to the trader that the mercantile law of neighbouring cities, between which intimate commercial relations existed, should be as far as possible identical. How to produce this identity was a problem which in the Middle Ages faced the Italian towns, as to-day it faces the various United States of America. The problem was solved by the appointment in different towns, sometimes permanently sometimes periodically, of officials called emendatori or statutarii.1 Their duties, as M. Morel says, were to examine the practical results effected by the customs or statutes of the neighbouring towns, and to adapt those which worked well for the use of their own town. The result is that the Italian statutes on commercial and maritime matters became gradually more detailed and more identical. The Italian Law Merchant became both a comprehensive and a uniform body of law; and this fact accounts for the ease and completeness with which it was received all over Europe in the sixteenth century.2

The success of this legislation was largely due to the fact that it had behind it the practical experience of the commercial courts. To use English terms, it was largely codified case law; and we know from our own experience that the most useful and workable legislation turned out by Parliament is legislation of this kind. This brings us to the fourth, and, from the point of view of the development of commercial law, the most important sphere of the activity of these bodies—their judicial functions.

(iv) The jurisdiction which these bodies acquired over commercial and maritime affairs was very wide. At Genoa, at the beginning of the fourteenth century, the Officium Mercanzia had power to decide "all the differences, lawsuits, questions, and cases which arose between citizens of Genoa in relation to

1 Morel, op. cit. 78, 79; cf. Ashburner, op. cit. cxxi, cxxii; Mr. Ashburner at pp. cxix-cxx gives a list of some of the most important with their dates; for another list see Goldschmidt, op. cit. 167, 168.

2" La comparaison des statuts des villes lombardes, Monza, Milan, Crémone, Brescia, Bergame, ne laisse aucun doute à cet égard. Quand on passe successivement en reveu les compilations locales de ces villes, on n'a pas de peine à constater quelles contiennent des chapitres absolument identiques quant à la forme et quant au fond. Le plagiat est d'autant plus manifeste qu'il s'étend quelquefois même aux erreurs," Morel, op. cit. 78-79; cf. Ashburner, op. cit. cxxiv, cxxv.

trade. The powers of the Officium Gazarii over all matters relating to maritime law were equally wide. It decided all questions between shipowners and their crews, and between shipowners and merchants; all questions turning upon damage to cargo, and jettison; and all matters dependent upon, arising out of, accessory to, or connected with the foregoing. At Pisa the jurisdiction of the Curia Maris was quite as extensive; and in addition the curia artis lanæ, the consuls of the seven arts, and the captain and consuls of the Sardinian ports, had also a large jurisdiction over matters which fell within their respective spheres. That matters were similarly organized in the other Italian towns is clear from the fact that Bartolus could state as a general rule that "consuls elected by the college of Merchants have ordinary jurisdiction." Straccha, Marquardus,® and Ansaldus regard the possession of such jurisdiction as the most usual privilege belonging to the merchants of a state.



The question at once arises, What was the law which these mercantile tribunals applied? The answer would seem to be that in purely maritime matters there was a basis of rules derived from the civil law, the Basilicas, and the Rhodian sea law; that in commercial matters there was a basis of rules derived from the civil and canon law; but that the most important

1 Leges Genvenses, Mon. Hist. Pat. xviii col. 537, "Omnes et singulas differencias lites quæstiones et causæ quæ inter mercatores Ianuenses orientur causa mercandi."

[ocr errors]

2 Ibid cols. 742, 743, "Quæstiones vero et causæ quæ vertuntur seu verti possunt inter patronum vel marinarium sive fidejussorem eorum, sive inter patronum et mercatorem, occasione rerum positarum vel oneratarum in navigio, et emendationis, vel damni quæ vel quod pateretur pro dissipatione diminutione vel mancamento rerum et mercium prædictarum, sive occasione nauli vel jacti vel projecti . ac in et circa dependentia emergentia accessoria et connexa prædictis audiant cognoscant declarent diffiniant corrigant et emendent."

3 Black Book of the Admiralty (R.S.) iv. 473-475, "The consuls determine all questions which concern freight, damage to cargo laden on board ship, mariners' wages, partnerships in shipbuilding, sales of ships, jettison, commissions entrusted to masters or to mariners, debts contracted by the master who has borrowed money for the wants or necessities of his vessel, promises made by a master to a merchant, or by a merchant to a master, goods found on the open sea or on the beach, the fitting out of ships galleys or other vessels, and generally all other contracts which are set forth in the Customs of the Sea."

* Statuti Pisani (Ed. Bonaini) i pp. 89, 90-The Breve Pisani Communis of 1286; iii pp. 351-445-The Breve Curiæ Maris of 1305; ii pp. 863-889-The Breve Artis Fabrorum of 1305; iii pp. 651-741-The Breve dell'Arte della Lana. There are similar Breves for many other Arts.

5 Cited by Straccha, op. cit. 260; he adds, 260b, “Non propterea ordinariorum [judicum] jurisdictio adempta censetur quinimo et ipsi mercatores et consules ordinariis judicibus subjiciuntur."

6 Op. cit. Bk. iii c. ii § 1 cited above 72 n. 6; ibid Bk. iii c. vi. § 54.

7 De Commercio et Mercatura, Discursus Generalis (ed. 1689) §§ 41-44 (p. 631)— "Solet etiam inter privilegia Mercaturæ recenseri, quod eorum stylo stari oporteat, ita ut hic prævalere debeat dispositioni Juris Communis. Et ob id jure merito quando tractatur de legibus publicum commercium concernentibus, adhiberi soleat votum et judicium mercatorum."

sources both of commercial and maritime law were the rules made by these courts to meet the new needs and the new problems set by an expanding commerce carried on under mediæval conditions. These rules were the basis of those maritime and commercial statutes of the Italian cities and the ports of Southern Europe, which have exercised so great an influence on the commercial law of Western Europe.

[ocr errors]
[ocr errors]
[ocr errors]

Mr. Ashburner has pointed out that in the earlier maritime statutes there is a constant reference to usus and " consuetudo"; and he justly thinks that the authorities "clearly point to the existence, if not of a general sea custom for the whole Mediterranean, at least of a custom extending beyond the jurisdiction of the individnal state.' The detailed comparison which he makes between the provisions of the civil law, the Basilicas, and the Rhodian sea law on the one side, and the provisions of the Italian statutes of the twelfth and thirteenth centuries on the other, illustrates the manner in which the elaborate Italian codes of maritime law were built up upon the basis of the law of Justinian and the Eastern Empire.2 Sometimes the provisions of the Roman law were retained. But more often they were varied in all directions; and a large superstructure of detailed rules, evidently suggested by the concrete problems which came before the maritime courts, gradually superseded the original basis. If we said that the Roman rules had been turned to modern uses we should not perhaps be saying anything historically incorrect; but we should be exaggerating the importance of the historical basis. These Italian maritime courts, were doing for maritime law what the English common law courts were doing for the English common law. They were building up from a basis of medieval maritime custom and Roman law a wholly new system of maritime law.

The influence of the civil law upon the Italian commercial law was of the same general character as the influence of the civil law, the Basilicas, and the Rhodian sea law upon the Italian maritime law; but it was greater in extent.

In the first place, the civil law conferred both upon commercial and upon maritime law a service of a like character to

1 The Rhodian Sea Law cxxii-cxxv.

2 Ibid cxxix-ccxciii; as M. Lefort says, Bensa, Histoire du contrat d'Assurance au moyen âge (traduit par Valery), Introd. viii n. I, "Il faut noter, d'ailleurs, que les principes du droit commercial recueillis par les Romains et conservés au Digeste, principalement sous le titre De Lege Rhodia de jactu, ont précédé toute la legislation commerciale d'Italie. On doit admettre. que cette partie de la loi romaine était des mieux connues et des plus appliquées au moyen âge puisqu'on trouve bon nombre de manuscrits des onzième et douzième siècles qui ne contiennent que ce titre, détaché du reste du corps des lois, pour l'utilité des navigateurs et des commerçants.'

[ocr errors]
« VorigeDoorgaan »