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that which it conferred upon many other branches of law by supplying it with a concise technical language. This service was conferred mainly through the profession of the Notaries; and since the work of this profession has had a very permanent influence upon commercial law I must say a few words about it.1 The term Notary" meant originally a scribe who used "notæ "-in other words, a shorthand writer.2 These scribes were employed under the Roman Empire by the Tabelliones. These tabelliones either held a public position as clerks to the provincial or municipal magistrates, and in that case they both attended to the non-contentious business of the courts and drafted documents; or they were employed solely by private clients in the latter capacity. In either case these documents drawn up by them had greater weight than documents drawn up by a private person. They were instrumenta publica confecta. But they were not entitled to the full status of instrumenta publica till registered in court. In the earlier mediæval period similar officials called notaries, attached to the courts of pope, emperor, and counts palatine, make their appearance; and it came to be thought that all notaries must be officers of a court, and therefore appointed by pope, emperor, or count.1 Thus there arose a class of notaries who had been given a definite status by papal or imperial authority. The fact that they thus acted under official sanction, the fact that they were officers of a court, tended to invest the documents drawn by them with greater sanctity. In the course of the twelfth and thirteenth centuries these documents not only attained to the dignity of instrumenta publica, they also gained executive force, i.e. they could be enforced like judgments of the court. 5 Thus it happened that almost all mediæval documents of any importance were drawn by them. Obviously in the trading centres of Europe the preparation of commercial documents must have formed the largest part of their work; and a very cursory glance at any collection of these documents will

1 See the account given by Brooke, The Office and Practice of a Notary in England (ed. 1901), by Cranstoun; the following account is based on chapter 1 of that book; cf. Mitchell, op. cit. 108-110.

2 Brooke, op. cit. 3.

3 Ibid 3-5.

4 Ibid 6-8.

5 Ibid 9-10; Mitchell, op. cit. 110 n. I; Blancard, Documents inédits sur le commerce de Marseilles au moyen âge i xxxvi-xliv gives us an account of the regulation of the notaries of Marseilles; in the collection which he has printed there are comprised the Notules d'Amalric-1031 abstracts of commercial documents drawn by the notary Amalric in 1247-1248; on the death of a notary his books were either handed to his successor, or deposited among the public records; the Notules d'Amalric have been preserved because they were thus deposited; for references to other collections see Ashburner, op. cit. cxxv-cxxviii; they never gained so important a position in English law; as to this see below 114-115.

6 Blancard, op. cit. i xxxvi says, “Sa fonction avait un caractère si universel que rien n'y échappait, ni la politique, ni l'art, ni le commerce, ni l'industrie, ni la vie publique, ni le foyer."

show the large extent of the influence which they exercised upon commercial law. It was similar in kind to the influence which the English conveyancers have exercised upon the English land law.1 They made the common forms used in the trading centres of Southern Europe, and when the law used in these centres spread over the rest of Europe, these common forms came with it, and are the basis of the documents which Merchants all over the world are using to-day."

In the second place, the part of the civil law which specially influenced the growth of the Italian commercial law was, as we might expect, the law of obligations. It is not too much to say that the fullness and logical exactness of this part of the civil law has made it one of the most important of the bases of modern commercial law. The classification of contractual obligations to be found in the Corpus Juris, and the minuteness with which the rights and liabilities of the parties are analysed; the discussion of the general nature of contractual obligations; the many matters relating to their operation and the causes of their invalidity which are grouped round the Stipulatio; the analysis of delictual obligations, and especially of such topics as dolus and culpa-made up a body of law which could deal adequately with very many of the new commercial problems of the time. In the fourteenth and fifteenth centuries the treatment by the glossators of the topics of the new commercial law is generally to be found in their comments on the titles of Code and Digest which deal with obligations contractual or delictual; 3 and in the seventeenth century a considerable section of the great treatise of Marquardus is grouped round the leading heads into which the Roman contract system falls.*

The influence of the canon law was different from that of the civil law, but not less extensive. The civil law influenced mainly the technical development of the law. The canon law influenced mainly the substance of the law, and the machinery

1 Vol. iii 218-219.

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2 See e.g. the charter party made at Pisa in 1263 which is cited by Ashburner, op. cit. clxxix-clxxxii; we may remember that the terms "insurance" and "policy come from Italy, and that, "up to recent times all policies began with the words, In the name of God Amen!' imitating the customary old Italian commencement. Dio la salvi, Amen!' The pious phrase is no more known to the underwriters of the present day. Still every policy. finishes with a sentence in use for upwards of three centuries,' And it is agreed by us, the insurers, that this writing or policy of assurance shall be of as much force and effect as the surest writing or policy of assurance made in Lombard Street.' The Lombards are gone, but Lombard Street still lives at Lloyds," Martin, History of Lloyds, 31, 32; see below 138 n. 5, 139, 143. 3 Thus Goldschmidt, op. cit. 174 n. 106, cites the commentary of Bartolus on the passages of the Digest dealing with Mandatum, and the commentary of Baldus on the passages of the Code dealing with the same subject, to prove that, "in causis mercatoriis æquitatem præcipue spectandum."

Op. cit. Bk. ii cc. viii-x.

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by which it was applied. The reason why the canon law was able to exert this influence upon the development of commercial law rests at bottom upon the manner in which the Canon law put into legal form the religious and moral ideas which, at this period, coloured the economic thought of all the nations of Western Europe. It is true that the precocious political and commercial development of the Italian cities caused these religious and moral ideas to be subordinated, at an earlier date than elsewhere, to the desire to increase the wealth and power of the state.2 But Italy, like the rest of Europe, felt these influences; and therefore the rules of the canon law, in which they were elaborated in legal form, necessarily had a wide and varied influence on the substance of the law.

2

Of the nature and extent of that influence it is difficult to speak summarily; and it would be a long and difficult task to appraise accurately the extent to which the canon law retarded, and the extent to which it assisted at different times and in different places, the development of commercial law.3 On the whole it is probable that its influence was beneficial. In earlier days when commerce was in its infancy it helped to keep the peace and protect the persons of the merchants; and in later days, when commerce was becoming organized, it helped to guarantee the sanctity of mercantile transactions. No doubt the necessity of evading its stern prohibition of usury made the developments of certain branches of the law tortuous and complicated. But there is reason to think that the effects of this prohibition have been exaggerated; and we shall see that it did not in fact impede commercial development so greatly as is sometimes supposed. On the other hand the canonist's view that faith should be kept, in whatever form the promise

6

1 Vol. ii 468-469; vol. iv 316-319.

2 Vol. iv 318; thus at Genoa in 1403 it was enacted that anyone who, having entered into a mercantile contract “maxime per viam cambii vel assecuramenti," alleges that it is illegal or usurious, and takes proceedings to have it declared void before any court, lay, or ecclesiastical, shall be fined-" Si enim, per hæc et similia impedimenta, instrumenta cambii et alii contractus mercantiarum facta cum scripturis vel sine non possent executioni mandari, verteretur in magnum damnum et incommodum civium et mercatorum Ianuensium, qui communiter faciunt similes contractus, nec aliter possent exerceri mercimonia, nec navigia navigancia expedire," Mon. Hist. Pat. xviii col. 971.

3 Morel, op. cit. 75, 76.

4 Below 86-87.

5 What Huvelin says, op. cit. 358, of the evolution of the influence of the peace of the market can be applied to the evolution of the influence of the canon law-" Par une autre evolution elle (la trêve conclut en faveur de commerce) a changé d'objet. Après avoir, à l'origine, assuré la securité matérielle du trafic, elle a fini par en assurer principalement la sûreté intellectuelle et morale."

6 Pt. II. c. 4 I. § 1.

7" Ob utilitatem publicam Fides vel, ut Baldus ait, veritas negocii simpliciter attendi, et præ ceteris stricte observari debeat," Marquardus, Bk. ii c. viii § 2; Straccha, op. cit. 247-247b, explains that Bartolus said nothing inconsistent when he

was expressed, helped forward the development of forms of commercial contract which were quite unknown to the civil law;1 it assisted the legislature to deal adequately with the new forms of fraud and sharp practice rendered possible by a more elaborate organization of commerce; 2 and thus it contributed to enforce those high standards of good faith and fair dealing which are the very life of trade. These were considerable services. But to my mind the most considerable of the services rendered by the canon law was the assistance it gave to the establishment of a workable system of procedure in commercial cases. It was the most considerable of its services, because it enabled a definition of the spheres of the lawyers and the traders to be arrived at, which allowed legal effect to be given to new commercial usages, and yet maintained a due regard for legal principles. This settlement of the respective spheres of the lawyers and the merchants I regard as one of the main causes of success of the Italian commercial and maritime tribunals in evolving a system of commercial and maritime law. I must therefore say a few words as to the manner in which it was arrived at, and as to its terms.

The consuls who administered commercial and maritime law in the Italian cities were generally required to administer justice "sine strepitu et figura judicii," or "summatim et extra ordinem," or "summarie et de plano." The question at once arose, what meaning was to be attached to these phrases? Clearly we are face to face with the same problem as that which was presented to the English judges of the thirteenth century-the combination of a due regard for the claims of substantial justice with a system

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says in one place, "in curia mercatorum jura civilia servari," and in another that agi ex nudo pacto"; quoniam strictum illud jus, quod nuda pactio actionem non pariat, ex circumstantia personæ mercatorum temperandum moderandumque ex mente et verbo legis placuit."

The contract of Insurance, Pt. II. c. 4 III. is a striking illustration; as Marquardus says, Bk. ii c. xiii § 4, it was hardly discussed at all by the lawyers before Straccha; equally striking are the rules as to assignability and negotiability of obligations, Pt. II. c. 4 I. § 2; thus Marquardus says, Bk. ii c. xv § 6, "In hac enim ex praxi et stylo quotidiano observatur, æque creditorem ac debitorem, sine expressa stipulatione delegare posse; et per delegationem etiam creditorem vice creditoris, ut debitorem vice debitoris, ex natura correlativorum constitui posse"; though, as he pointed out, ibid §§ 9 and 10, a liability cannot be transferred without the creditor's consent, a right can be transferred without the debtor's consent, "cum ejus non intersit cui solvat"; cf. ibid § 17, “Nos autem de delegatione per assignationem, transportationem, vel inductionem, ut mercatores loquuntur, facta; quo in passu delegans seu transcribens cambium delegato acceptanti, ulla retractatione mandati aut alio quovis modo præjudicare non potest"; cf. Pardessus, op. cit. iv 421, as to the obvious necessity of adding to the provisions of the civil and canon law.

2 Thus Straccha, op. cit. 47-56, cites the opinions of Baldus and other jurists as to the various questions which arise as to property in merchants' marks, and the iability which arises if one merchant fraudulently uses another's marks.

3 Morel, op. cit. 58 seqq.; Mitchell, op. cit. 12-16 and references there cited; Goldschmidt, op. cit. 174 n. 106.

VOL. V.-6

of procedure rigid enough to be workable.1 Clement V. in 1306 attempted to solve the problem by the Decretal Saepe contingit.? It frequently happens, runs the Decretal, that we direct cases to be heard "simpliciter et de plano ac sine strepitu ac figura judicii." The meaning to be attached to these expressions is much controverted; and so, to remove doubts, we decree that a judge, directed to hear a case in this way, shall not exact a libellus, shall not demand a litis contestatio, shall be able to sit on holidays, shall remove all occasions for delays, and shall cut short litigation as much as he can, by refusing dilatory and vain defences and appeals, and by repressing both the disputes of advocates and procurators, and the needless number of witnesses. He must not, however, abridge the suit to such an extent that it cannot be fairly stated and defended. There must be a proper citation, and oaths that the proceedings are in good faith and that the truth will be spoken must be taken. Positiones can be used unless the parties agree to exclude them; and the judge may question the parties whether requested by them or not, when it appears to him to be equitable. Parties must be cited to hear a definitive judgment, and it must be in writing. the other formalities used in giving judgment may be omitted. The words of this Decretal were elaborately and sympathetically expounded by the jurists of the succeeding centuries. interpreted them as authorizing, not only such modifications in

1 Vol. ii 251.

3

But

They

2 Clem. v, xi 2, "" Sæpe contingit, quod causas committimus, et in earum aliquibus simpliciter et de plano, ac sine strepitu et figura judicii procedi mandamus; de quorum significatione verborum a multis contenditur, et qualiter procedi debeat dubitatur. Nos autem, dubitationem hujus modi (quantum nobis est possible) decidere cupientes, hac in perpetuum valitura constitutione sancimus, ut judex, cui taliter causam committimus, necessario libellum non exigat, litis contestationem non postulet, tempore etiam feriarum, ob necessitates hominum indultarum a jure, procedere valeat, amputet dilationem materiam, litem, quantum poterit, faciat breviorem, exceptiones, appellationes dilatorias frustratorias repellendo, partium advocatorum et procuratorum contentiones et jurgia, testiumque superfluam multitudinem refrenando. Non sic tamen judex litem abreviet quin probationes necessariæ et defensiones legitimæ admittantur. Citationem vero ac præstationem juramenti de calumnia vel malitia, sive de veritate dicenda, ne veritas occultetur, per commissionem hujus modi intelligimus non excludi." They were statements drawn up by both parties to be used as a basis for the examination of opponents by the judge; for a clear account of them see Langdell, Equity Pleading, Essays, A.A.L.H. ii 761, 762.

4 Marquardus, op. cit. Bk. iii c. vii §§ 9 and 10, discusses elaborately what steps in the procedure are “Naturalia" and unable to be dispensed with, and what are "Civilia" and able to be dispensed with-"Naturalia sunt (1) Citatio, (2) Brevis narratio sive expositio causæ, (3) Petitio, (4) Probationes semiplenæ, (5) Cognitio causæ saltem aliqua et levis, (6) Denique sententia sine conclusione. E contrario civilia sunt hæc :—(1) Libelli oblatio, (2) Articulorum compositio, (3) Litis Contestatio, (4) Feriæ in honorem hominum indictæ, (5) Dilationes et termini, (6) Publicatio attestationum, (7) Jusjurandum calumniæ (8) Conclusio in causa, (9) Denique recitatio sententiæ ex scripto a judice sedente facta. Hæc inquam mere sunt Civilia, sive juris positivi: ideoque in judiciis summariis secundum Doctores omitti possunt; cf. Straccha, op. cit. 269b, 270b, 276, 276b.

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