adopted; and that obviously led to the speedy absorption of the legal machinery and the rules of law which had originated in those parts of Europe which were commercially and legally the most advanced. Thus the international commerce of the great fairs, and the activities of these privileged bodies of foreign merchants in the fairs and elsewhere, worked together to develop the commercial law of modern Europe. We can see their effects in three different directions-(i) in the removal of hindrances to trade imposed by national laws; (ii) in the rise of commercial tribunals modelled on the Italian plan; and (iii) in the spread of the Italian doctrines of commercial law. (i) In order to attract merchants to the great fairs the state was prepared to forgo certain burdensome rights which, though profitable to itself, obviously hindered trade. Thus, the right of reprisals was suspended in respect of debts incurred or wrongs committed in the fairs.1 The state abandoned, in favour of merchants coming to the fairs, the right of seizing the goods of a deceased foreigner (droit d'aubaine).2 In some fairs the prohibition against usury was suspended in respect of transactions there entered into, provided that the interest charged did not exceed a certain rate.3 In many cases the merchants attending the fair could not be arrested during the fair for wrongs done or debts incurred outside the fair. The last mentioned franchise became an anachronism with the growth of a more settled order; 5 but the other privileges were gradually extended until they finally swallowed up the rules of law to which they had once been exceptions. (ii) We have seen that in Italy and south-western Europe the growth of the special commercial courts presided over by the merchants was one of the main causes for the growth of an 1 Huvelin, op. cit. 442-443. 2 Ibid 443-445; in the treaty made in 1294 between the captain of the merchants of Italy frequenting the fairs of Champagne, and Otto count of Salins (cited ibid 444), it is provided that, "Si aliquis istorum mercatorum obierit in terra et jurisdictione nostris nos bona ipsius consignari faciemus, et reddi ejus nuntio vel socio de quibus constiterit aut nuntio universitatis dictorum mercatorum aut capitanei, quam cito postulatum fuerit a nobis vel ballivo nostro. Sed ille qui bona receperit voluntatem defuncti exequatur;" as Pardessus, op. cit. iii clxxviii, says, "On ne peut nier les services importans que rendirent dans le Nord la grande association anséatique, et dans le reste de l'Europe les compagnies moins celebres . . . des commercans italiens," in respect of the removal of many kinds of burdensome exaction. 3 Ibid 439-440; a royal ordinance of 1311 fixed the limit for the fairs of Champagne at 15 p.c. Ibid 445-451; at p. 447 the charter of Aix la Chapelle of 1166 is cited to the effect that, "Nullus mercator vel quilibet alia persona in his nundinis mercatorem in causa ducat pro debito solvendo vel alio quolibet negotio quod ante nundinas perpetratum factum fuerit; sed si nundinis aliquid perperam factum fuerit, in nundinis secundum justiciam emendetur." 5 Ibid 451-454. adequate commercial law.1 But in northern Europe the privileges of the merchants depended upon a grant or grants made by king or lord. These grants resulted in the formation of a franchise of fair or market in which the merchants were governed by a special law. But the administration of the law has always been a profitable thing; and therefore the grantee of the franchise naturally kept it in his own hands. It was therefore the lord of the fair or market, and not the merchants who resorted to it, who was the judge of the court; and the assessors of the court were chosen by him. We have seen that when the periodic market developed into a permanent town these assessors developed in many cases into a permanent court of merchants.3 In the case of the great fairs the mode in which a commercial court of merchants was developed was different. It apparently took its rise from the large powers which the corporations or associations of foreign merchants, who came to the fairs, were allowed to exercise over their own members. The growth of the idea that merchants were best fitted to exercise a mercantile jurisdiction over merchants can be seen in the history of the fairs of Lyons, which date from 1419—a time when the fairs of Champagne were already declining. An ordinance of 1463 vested the jurisdiction in a royal official called the "conservator and guardian of the privileges of the fairs." But in the following year another ordinance allowed the municipality of Lyons to elect a suitable "prud'homme " to see that the merchants suffered no extortion, and to compose their differences either by agreement or by the arbitration of two sufficient merchants." A struggle of nearly two centuries lay before the merchants of Lyons before they succeeded in absorbing the jurisdiction of the conservator." But, before the date, the principle that commercial courts should be presided over by merchants, and that the merchants should have as much or more weight than the lawyers, had been generally accepted throughout Europe. In the great commercial centres of Flanders, and in the cities of the Baltic states, the merchants had instituted the kind of tribunals best suited to their needs. In Spain the consular jurisdiction spread from Aragon to the other cities of the peninsula. In France the inconvenience caused 1 Above 68-71. 3 Above 88-89. 8 2 Above 87-88. 4 Huvelin, op. cit. 394-402. 5 Ibid 404, 405; Morel, op. cit. 169, 170; as M. Morel points out, loc. cit., the royal official had the largest share of jurisdiction; the decisions of the prud'homme were subject to appeal, and that gave the royal official the last word. 6 Ibid 172-180. 7 Marquardus iii, i 31-34 points out that in the Baltic states there were formed, after the model of Lubeck, many Collegia nautica sive mercatoria in quibus controversiones mercatoriæ et nauticæ deciduntur "; Ansaldus, op. cit. Discursus Generalis § 3. 8 Mitchell, op. cit. 64; above 70-71. 3 4 5 by the clashing jurisdiction and complicated procedure of the ordinary courts1 caused this jurisdiction to prevail in spite of the opposition of those courts. In 1549 an exchange, and a consular court staffed by judges elected by the merchants, were established at Toulouse.2 In 1563 L'Hopital established similar courts at Paris; and in 1576 they were established in the principal towns and the capitals of the provinces, in which an extensive trade was carried on. In Germany the preponderating influence of the merchants in the government of some of the principal towns had led to the beginnings of a commercial jurisdiction; and the ordinary courts and the law which they administered were adapted to the needs of commerce. But the Reception of Roman law in many cases superseded the ordinary law, and led the ordinary courts to become the preserves of the lawyers, who naturally adopted the technical and complicated procedure of the civil law. This did not suit the merchants. They had recourse, sometimes to the extra-ordinaria cognitio of the Burghermaster, sometimes to special tribunals of arbitration. In 1508 Nuremburg was enabled by imperial grant to set up a commercial court of merchants for merchants; and later in the century other towns which, like Nuremburg, possessed large fairs got similar privileges.10 But the German development was slower than the French. It was not possible in Germany, as it was in France, to make sweeping and general changes by legislative ordinance. Leipsic obtained a commercial court in 1682; and by that time the type of German commercial court was fixed. The influence of the towns and the influence of the international fairs had combined to produce this result. 7 6 9 It is hardly necessary to say that the constitution of these commercial courts was not precisely the same in all these different countries. In particular the terms of the partnership 1 Morel, op. cit. 189-192; Henry II.'s edict of 1551 cited at pp. 191-192 states that the length and technicalities of the process of the ordinary courts was so great, "De sorte que la pluspart de nos subjects délaissans et abandonnans leur forme et manière de vivre avec leurs arts employent le temps de leur vie à la poursuite d'un procez, sans en pouvoir voir la fin, et consument leurs meilleurs ans, avec leur biens, facultez et substances, en chose si serve et si illibérale qu'est cette occupation comme chacun sçait"; besides there were the delays caused by the conflicting jurisdiction of various courts. 2 Ibid 192. 3 Ibid 195-202; cf. Glasson, Les Juges et Consuls des Marchands, Nouv. Rev. Hist. (1897) 5-13. 4 Morel, op. cit. 203, "Dans les principales villes et capitales des provinces èsquelles il y avait grand train et trafic de marchandises." 5 Ibid 97-101. 7 Ibid 105-106. 6 Ibid 102-105. Ibid 109-111; as M. Morel points out we may suspect that this reform was directly inspired by the example of the cities of Lombardy, between which and the towns of lower Germany there were intimate commercial relations. 10 Ibid 112-115. between the lawyers and the merchants were different in different places. But they all had this essential feature in common-the merchants were part of the court. Moreover, in most cases, the part which the lawyers were allowed to take, either as advocates or judges, was restricted; 2 and in all cases-both in the courts of the fairs and in the courts of the great cities-the procedure was short and summary. All over Europe it is described in the same terms as it is described in the Italian city statutes—it is de plano ac sine figura et longo strepitu judicii.3 (iii) We must now turn to the third of our divisions-the spread of the Italian principles of commercial law. Since the great international fairs were the centres of European trade, special rules of law were needed to regulate the complicated transactions incident to such a trade. Already rules of law adapted to such transactions had been evolved in the Italian cities and the great trading centres of South-western Europe.* It was through the fair courts that these rules of law were spread over the rest of Europe. As M. Huvelin has said, we must recognize with Goldschmidt that the fairs were the meeting-places of the Roman and Germanic worlds of commerce and law.5 No doubt the associations of privileged foreign merchants, which settled in the different European countries, helped both at the fairs and elsewhere to spread these ideas. But it is of the transactions of these great fairs that we have the fullest information; and it is from them therefore that we can see most clearly the manner in which our modern rules of commercial law have grown up. Let us take one or two examples from the rules of law applied in the fairs of Champagne. Firstly, dealings in money and the mechanism of exchange. In the fairs of Champagne money from all the states of Europe was in circulation. The money changers (campsores) carried on an active trade. They fixed the rate of exchange; and 6 7 1 Morel, op. cit. 212-213, “Durant tout le Moyen Age, en Italie, pas de juridiction commerciale où les juristes ne fussent mélangés aux négociants. Des Marchands et rien que de marchands pour juger les marchands, tel est au contraire le principe fondamental que les ordonnances françaises suivent avec une rigueur de plus en plus accentuée à mesure qu'on rapproche de xvie siècle. Quant a l'Allemagne, elle n'applique intégralement, ni le système italien, ni le système français.' 2 Glasson, op. cit. 21; but later certain persons were allowed to practise before these courts, without the title of avocat or procureur, under the name of persons 'agréés par messieurs les consuls pour porter la parole a l'audience ; in consequence many of the advantages of this procedure disappeared, ibid 22; cf. Huvelin, op. cit. 419. 3 Cf. ibid 418, 419. 5 Op. cit. 258. 4 Above 72-85. 7" Le nom de changeurs, qui est primitivement l'équivalent du nom de marchands, designe, dans l'usage du moyen âge ceux des marchands qui se consacrent plus spécialement au commerce des métaux précieux et au commerce du crédit," ibid 543; apparently the word change meant the booth or bench of the merchant, ibid 546. 2 4 3 their dealings in money naturally led them to develop a banking business.1 The establishment of such a business led to the evolution of Bills of Exchange and other negotiable instruments, which facilitated the payment of debts without the need for transporting coin. The presence of these changers and bankers at the fairs made it a convenient practice to make debts of many kinds payable at the fairs. The fairs thus became the clearing houses of Europe; and, as we have seen, it was this function of the fairs which has had the longest life.5 The Italian influence upon these branches of the law is particularly direct, since the business of dealing in money or its substitutes was chiefly in the hands of the Italians. Thus, through the fairs, the Italian doctrines as to banking, negotiable paper, and international exchanges, were diffused throughout Europe, and became the foundation of its commercial mechanism. 6 Secondly, the Italian doctrines as to the unlimited liability of the members of a societas for the acts and transactions of one of its members, though the member was not specially authorized, was recognized in the fairs; and through them they passed into the commercial law of Europe. This principle gradually supplanted both the Roman and the Germanic rules which did not admit such a liability." Thirdly, we have seen that the prohibition of usury was relaxed in favour of those who traded at fairs provided that the rate of interest did not exceed a certain sum,8 and that the Italian cities found it necessary to make similar modifications of this prohibition. We shall see that, from the sixteenth century onwards, usury laws on these lines were adopted by the commercial cities and states of Europe.10 9 Fourthly, the fairs of Champagne recognized a procedure against defaulting debtors at the fairs, which recalled the provisions of some of the Italian city statutes, and foreshadowed a modern bankruptcy procedure. It enabled, in the first place, the debtor to be arrested and his good seized; and in the second place, it distributed his assets rateably among all the creditors whose debts had been contracted at the fair.11 Other creditors only came in after the fair creditors had been satisfied.1 Provision was made for compositions with creditors.13 Other fairs applied a like set of rules; and, at a later period, their example 12 2 Pt. II. c. 4 I. § 2. 5 Above 91. 10 Pt. II. c. 4 I. § I. 12 Ibid 493-494. |