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the law of procedure as would make for the speedy hearing of commercial cases, but also such modifications in the law as were necessary to enable substantial justice to be done without regard to any merely technical difficulties. No doubt the details of rules of procedure varied much from place to place-the rules as to the competence of different courts to deal with certain classes of cases according to the amount at stake, rules as to appeals, rules as to the course to be followed when the judges differed, rules as to process against an absent or a contumacious defendant, were very various.2 But running through all the mass of particular rules there are the two guiding principles that the procedure must be simple and speedy, and the law must be equitable. Straccha cites Clement's Decretal, and says in effect that all formalities may be dispensed with, the omission of which is consistent with an orderly hearing of the case. At the same time he lays it down that the law must be above all equitable and free from the "apices juris." This principle he says, our modern lawyers have laid down in six hundred different places. Straccha's words are cited and amplified by all his successors. 5

It was this purging of the law of barren technicalities which enabled the merchants to take a position of importance, equal if not superior to that of the lawyers, in the mercantile tribunals, and so to modify the law to suit the exigencies of trade. The merchants, who were thus set to decide mercantile cases simply and summarily, thought with reason that they could decide the general run of mercantile cases without the intervention of the lawyers. Thus, many of the city statutes prohibit the employment of lawyers except in certain cases. If both parties desired to employ them, if the court found that the case depended upon a question of law which it could not solve, or if the court differed in opinion-then the lawyers might be called in. The

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1 Straccha, op. cit. 246, citing Bartolus on this point, says, "Apices juris esse putat, quæ subtilitatem quandam respiciunt magis quam facti veritatem, verbi gratia, si esset instituta directa actio cum utilis competit, vel non esset lis contestata et similia."

2 Morel, op. cit. 58-74, gives a good account of some of these varying rules in different towns.

3 Op. cit. 270b, "Sed hæc intelligenda sunt dummodo tanta non sit obscuritas et incertitudo quæ res defensionem atque facultatem deliberandi adimet; intelligi debet quid sibi actor voluerit, licet generaliter protulerit."

4 Ibid 244b, " In curia mercatorum æquitatem præcipue spectandam et ex bono et æquo causas dirimendas esse, et de apicibus juris minime congruere nemo est profecto qui nesciat. Id enim in sexcentis locis recentiores jurisconsulti tradidere." 5 See e.g. Ansaldus, op. cit. pp. 626, 627, §§ 1-3, and 7-11.

6 Statuti Pisani (Ed. Boniani) i pp. 230-232-the Breve Pisani Communis of 1286; Leges Genvenses, Mon. Hist. Pat. xviii col. 537-the Officium Mercanziæ may take legal advice if they see fit, but generally they must proceed " sine consilio jurisperiti nisi ad utriusque partis instanciam; ibid col. 817; but ibid cols. 813, 814 a list of

lawyers it was thought should be employed to settle points of law, and not to argue matters of fact, and to put a good face on a bad case.1 The danger of such a set of rules is of course that each case will be decided on its own facts according to the individual views of the judges, and that no legal principles will be evolved. But, if we may judge from the books produced by the writers of the sixteenth aad seventeenth centuries, this danger was successfully avoided. The merchants had, it would seem, taken the advice given to them by Straccha, and had not thought themselves more equitable than the law. When, in the sixteenth century, the Italian system of commercial courts was introduced into other countries, this danger was considerably less. The practice of those courts had given rise to bodies of law which were generalized and explained by the legal writers of the sixteenth, seventeenth, and eighteenth centuries. The mercantile tribunals had therefore fixed laws to guide them; and even the lawyers admitted that they could do a more speedy and a better justice in mercantile cases than the regular tribunals.*

In these various ways therefore the Italian cities laid the foundations of our modern commercial and maritime law, and evolved the pattern of the commercial and maritime tribunals which have prevailed over the greater part of western Europe. To them we must look for the origins of the idea of a negotiable instrument and for the elaboration of many of the leading principles of our modern law on this topic. Similarly they elaborated the law as to banking and as to commercial partnerships both of the limited and unlimited variety; while the exigencies of commerce compelled them to lead the way in the development of a bankruptcy law, and in the introduction of modifications of the law prohibiting usury. In the department of maritime law they

cases is given which "spectant quam plurimum ad juristas utpote questiones de principalibus juris apicibus descendentes," and cannot therefore be sent to arbitration; presumably in these cases the assistance of the lawyers would be invoked.

1"L'intervention des avocats donnait lieu devant les tribunaux civils à des discussions et à des chicanes aussi interminables que steriles, qui entrainaient naturellement des pertes de temps et d'argent. Afin d'éviter cet abus, le droit de représentation devant les tribunaux de commerce fut strictement limité," Morel, op. cit. 62.

2 We have seen, above 83 n. 6, that it was admitted at Genoa that there were certain cases which could best be decided by the lawyers; and it is clear from Straccha's book that they were frequently consulted; thus at p. 181 he mentions, "Baldus noster qui in jure nostro propter ingenii acumen et frequentes disceptationes forenses primum locum obtinet, aut certe post Bartolum ; " cf. also ibid p. 233.

Op. cit. 285, "Consulant itaque mercatores in dicendis sententiis (ubi causæ expostant) jurisconsultos bonosque viros. Vetus est enim illud, ne sutor ultra crepidam, et felices essent artes si de illis soli artifices judicarent. Et se lege ipsa clementiores aut æquiores ne putent; at p. 285b he cites Baldus as saying, "Nos sequi æquitatem rationi conjunctam, non imaginariam et nostri capitis."

4 Marquardus, op. cit. Bk. iii c. vi § 54, writing De judicibus et consulibus Mercatorum, says that they ought to be appointed in all " emporia" to decide cases equitably and without legal technicalities.

made elaborate rules as to the capacity, loading, condition, and equipment of the ship; as to the legal position and legal relations of the various parties to a maritime adventure-shipowner, merchant, captain, and crew; and as to maritime partnerships. The various legal possibilities which might arise out of the contract of carriage by sea were very fully worked out; and this involved a treatment of such subjects as the results of loss from pirates, fire, or wreck-"the three normal maritime dangers"— maritime loans, average, jettison, contribution, collision and salvage.1 Last but not least it was in relation to maritime law that the conception of an insurance first appeared.2

Some of these branches of commercial and maritime law were, as we shall see, introduced into England in the sixteenth and early seventeenth centuries; and in the second Part of this Book I shall sketch briefly the history of their technical development. But, in order that we may understand the way in which they were introduced into our law, and the manner in which they were subsequently developed, it is necessary first to say something of their gradual reception in the trading centres of northern Europe.

(2) The reception by the cities and states of Northern Europe of the Italian ideas.

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We have seen that we must look to the franchises conceded to the merchants for the beginnings of the commercial law of the cities and states of Northern Europe. On the other hand for the beginnings of their maritime law we must look to the customs observed in the principal seaport towns.* Both these allied branches of the Law Merchant were influenced in the sixteenth century by the rules which had been evolved in the great trading centres of southern Europe; and both therefore tended to become parts of one cosmopolitan system. But seeing that the mode of their development was somewhat different, and seeing that in some countries they continued to be administered by different tribunals, I must deal separately with the history of their growth. Commercial Law.

For the origins of the commercial law of the cities and states of Northern Europe we must look to the franchises and privileges given to those who held and to those who resorted to a market. Thence originated a market and a market law which constituted an important, perhaps the most important element, which

1 Mr. Ashburner, in his introduction to The Rhodian Sea Law pp. cxxx-ccxciii, has given an admirable account of the manner in which the Italian cities built up a maritime law to suit medieval needs, and of the principal doctrines of that law. 2 Pt. II. c. 4 III. & Above 63.

4 Vol. i 527-528; below 100,

differentiated the town from the other communities of the land. Round these periodic markets a permanent trade grew up, and with it, gilds of merchants and traders. But this trade was at first an essentially domestic trade. In the thirteenth and fourteenth centuries the growth of foreign trade led to the establishment of international fairs, possessing privileges which enabled their courts to apply to all the merchants who traded there the more complicated rules which this larger trade demanded. Many of these rules were necessarily borrowed from the great trading centres of the south from which the principal merchants came. Sometimes also leagues and associations of merchants were allowed to settle in the various states of Northern Europe; and their commercial dealings were necessarily regulated by the laws applicable to this larger trade. Thus the rules made in the great centres of commerce began to be known in the northern as well as in the southern countries of Europe. But as yet they stood apart from the ordinary law of the nascent state-they were applicable only or chiefly to dealings in the periodic fairs, or to the business of the companies of foreign merchants who had been permitted to acquire a commercial domicile. In the sixteenth century these rules became part of the ordinary law of the state. The change of trade routes caused by the geographical discoveries ruined many of the great mediæval fairs; and the establishment of efficient government and improved means of communication rendered the establishment of new fairs unnecessary. At the same time privileged settlements of foreigners ceased to be permitted, since they were opposed both to the political and to the economic interests of the territorial state. The new companies formed for trade and colonization were composed of the subjects of the state.2 Each country had in its chief trading centres permanent fairs, the transactions of which were governed by a body of law which was derived partly from the market law developed in its towns, but chiefly from the rules observed in the periodic fairs in or the trading centres of the south of Europe. Therefore in dealing with this subject we must consider the influence (1) of the market law of town and gild; and (2) of the fairs and the associations of foreign merchants.

(1) The market law of town and gild.

In the disturbed period which followed the fall of the Roman Empire the periodic markets were the sole seats of commerce; 3 and church and state combined both to recognize that a special

1 Vol. iv 333; below 113.

2 Vol. iv 319-320, 333.

3 Huvelin, op. cit. 197, "le marché, au commencement de la période féodale, constitute le seul siège du commerce. Il n'y a pas de commerce permanent; le commerce périodique seul existe en fait et en droit."

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peace belonged to these markets, and to give them a special protection, which tended to differentiate their government and their law from that of the country at large.1 The church considered that it was bound specially to protect the poor and feeble; and this protection supplemented the special peace given by the king to the travelling merchant. The church, again, tried to make men keep faith, and to insist upon testing the validity of commercial transactions by its own moral views; and the attempt to achieve these things has, as we have seen, had a lasting effect upon the history of commercial law.3 Kings and emperors for a consideration made themselves the protectors of the merchants.* They encouraged the formation of markets, the peace of which was specially guaranteed. Special rules were made to facilitate their conduct, and to ensure the fulfilment of the transactions there entered into. When, as often happened, monasteries were granted the right to hold a market these two influences, ecclesiastical and lay, were exercised concurrently. Seeing that the monasteries were often centres of production, the privilege of holding a market was particularly valuable to them. It enabled them to take the tolls of the market; and other rights soon followed-the right to hold a court, to coin money, to exclude the royal officials." All these privileges came to be summed up under the term "ban royal." 8 Other large landowners soon acquired similar privileges; and, as the central power decayed, this privilege of holding or creating a market was so extensively granted to or assumed by the feudal nobility that it was regarded as belonging to all lords holding a barony. In France it was not till the royal power

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Huvelin, op. cit. 145, 338, 359.

2 Ibid 155-157; in later law the idea that the merchants were "miserabiles personæ "still survived, and was put forward as a reason for allowing a short and summary procedure in mercantile cases, see Ansaldus, De Commercio, Discursus Generalis § 15.

3 Above 80-81.

4 See Huvelin, op. cit. 150-155 for the capitularies of the Carolingian kings; and ibid 362-382 for the treaties made between merchant and king or lord for protection in return for a money payment; we see in these payments the origin of one of the tolls levied on the merchants under the name of conductus, passagium, or travers; and it survived, though the obligation to compensate those whose goods were stolen disappeared, ibid 379-380.

Ibid 158-"L'influence de l'Eglise se fait encore sentir dans les concessions de marchés et des foires dont elle est le principal bénéficiare."

6" Ces droits sont encore. .
. . uniquement des droits fiscaux."

7 Ibid 162-167: the right to coin money was perhaps given because it was essential for the conduct of a business in a market, ibid 539-540.

8 Ibid 167-168" Le droit de juridiction et de coercition départi dans les nouveaux privilègès à leurs bénéficiares est compris sous le terme de ban royal. Le ban (bannus districtus, districtio) c'est, à l'origine, à la fois l'ordre du roi et la sanction de cet ordre. Plus tard, le même mot sert à designer la puissance nécessaire à l'exécution d'un droit, puissance qui est le fondement de toute juridiction; il sert enfin à désigner le droit de juridiction lui même, et certaines de ses applications isolément."

Ibid 183.

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