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Thus the common law got rid of the difficulties occasioned by the old rules of venue. At the same time it had acquired in the action of assumpsit a convenient and flexible remedy for the enforcement of all kinds of contracts, and, in the action of trover, a convenient action for the enforcement of title to goods. These changes enabled it, not only to claim a share in the commercial business of the country, but even to aim at securing a monopoly of that business, by prohibiting the court of Admiralty from hearing such cases.

4

According to the theory of Coke and the common lawyers, it was only if a contract was made super altum mare, and was to be performed there, that the Admiralty had jurisdiction.1 But if the Admiralty had been allowed to employ a similar fiction to that employed by the common law courts, this concession might have been used to give it the disputed jurisdiction. The courts of common law therefore denied this liberty to the Admiralty. Their own fictions were untraversable; but the allegation that a contract sued on in the Admiralty was made super altum mare could be defeated by a mere surmise of the litigant who applied for a Prohibition.2 The claims made by the common law to a monopoly of this commercial business were not finally made good till after the Restoration. In the sixteenth and early seventeenth centuries the agreements come to by the judges in 1575 and 1632 conceded to the Admiralty a concurrent jurisdiction. But we should note that these agreements assumed that the common law courts had succeeded in making good their claim to share in this jurisdiction, if the parties chose to bring their action before them." And it is clear that the common law and the common lawyers were beginning to acquire some knowledge of the mechanism of foreign trade, and of the law applied by the merchants to regulate their commercial relations. Thus the edition of William West's collections of precedents published in 1615, which was "newly augmented with divers Presidents touching Merchants' affaires," shows that the common lawyers were becoming acquainted with the usual forms of mercantile documents. These precedents, some of which were written in French, comprise such documents as a charter-party, a sale of a share in a ship, a bill of lading, a bill of exchange, an insurance policy, and a procuration of a merchant to his factor. Similarly in the reports we find cases turning on

3 Vol. i 556-558.

Ibid 553, 555-556.

5 This is expressly pointed out by Jenkins in his argument before the House of Lords in favour of a bill to ascertain the jurisdiction of the Admiralty, which proposed to enact in substance the agreement arrived at in 1632, see Wynne, Life of Jenkins i lxxxv.

West, Symboleography, Pt. I. §§ 655-675.

2

7

such topics as jettison,1 average, insurance,3 charter-parties,* mercantile agents, partnership, bills of exchange, merchant's marks, bottomry, freight,10 the recaption of a captured ship,11 an agreement to share a captured prize. 12 One effect of the statute of 1624,13 which is the foundation of our modern patent law, was to make questions as to the validity of a patent, a matter for the common law courts. 14 It is not therefore surprising to find that Malynes recognized that it was desirable for a merchant to know something about the common law decisions.1

15

16

It was inevitable in these circumstances that the relation of commercial law and custom to the common law should undergo a change. In the Middle Ages, when the commercial customary law was administered in special courts for a very separate body of persons, it was something quite outside the common law." It was therefore necessary to plead and prove as a special custom any particular rule upon which a litigant wished to rely in proceedings before a common law court.17 But, when the common law courts began to open their doors to commercial cases, it became clear that they must take notice of this customary commercial law, and accept it as part of the common law. A case reported

1 (1609) 12 Co. Rep. 63.

2 (1590) Moore K.B. 297; this was a case in the court of Requests, but the reporter clearly thought it was a useful case for a common lawyer to know.

3 Dowdale's Case (1606) 6 Co. Rep. 47b.

4 Ibid 48a; (1611) Cro. Jac. 263-264; (1625) Palm. 397.

5 (1610) I Bulstr. 103; (1618) Cro. Jac. 468.

6 Hackwell v. Brooks (1617) Cro. Jac. 410.

7 (1602) Cro. Jac. 7; (1613) Cro. Jac. 307; (1621) Winch, 24-25; these are the earliest cases reported, but there is reason to think that earlier cases had come before the courts, see Pt. II. c. 4 I. § 2.

8 (1618) Cro. Jac. 471, per Doddridge J. 10 (1612) 1 Brownl. and G. 22.

12 (1590) 2 Leon. 182.

14 See S.P. Dom. (1637) 108, ccclvi 62.

13

9 (1628) Noy 95; Hob. 11, 12.

11 (1611) 2 Brownl. and G. II. 21 James I. c. 3; vol. iv 353-354.

15 Lex Mercatoria, Pt. I. 76; after giving two decisions on bills obligatory, he says, "These observations at the common law, and such like book cases as I have put down, I hold to be necessary for merchants to know, albeit we handle the law merchant in this treatise, and not matters of the common law."

16 Vol. i 526, 535, 539; vol. ii. 307, 309-310; the earlier medieval point of view is illustrated by the following dialogue in Y.B. 21-22 Ed. I. (R.S.) 456-458: Metingham C.J., He who demands this debt is a merchant; and therefore if he can give slight proof to support his tally we will incline to that side.-Gosefeld, Alas! Sir, we are here at common law; wherefore we are advised that he shall not be received in this Court, inasmuch as he can have his recovery elsewhere by Law Merchants;" but it should be noted that in the Eyre of Kent 6, 7 Ed. II. (S.S.) ii 49, 50 the rules of the law merchant were applied-perhaps because the Eyre suspended the sitting of all courts in Kent, including the mercantile courts; and in 1311, in an action on a sealed tally, Bereford C.J. recognized that "a man cannot use the law of the land in all its points against a merchant," Y.B. 4 Ed. II. (S.S.) 154-even at this early date, it would seem, the common law was beginning to encroach on the sphere of the Law Merchant.

17 Placitorum Abbreviatio 321, gives a good illustration of the way in which plaintiff and defendant pleaded their different versions of the commercial custom affecting their case.

by Brooke shows that they had adopted this new position at least as early as 1543.1 In that case a general custom of the merchants had been specially pleaded; and it was agreed that the pleading was bad, because a custom prevailing inter mercatores per totam Angliam was common law, and could therefore no more be pleaded than any other general rule of the common law.2 It followed, to use Coke's words, that, "the Law Merchant is part of the laws of this Realm." 3

But, in spite of the recognition of the fact that the law merchant was part of the common law, the courts, at the beginning of the seventeenth century, found it much more convenient to allow the customs of the merchants to be pleaded specially. This was due to three closely allied causes. In the first place, because the lawyers were very ignorant as to the exact scope of many of these customs, it was convenient to have them set out in the pleadings. In the second place, though mercantile custom was recognized as being part of the common law, it as yet applied only as between merchants; and it was necessary to state in the pleadings that the parties were merchants. In the third place, the forms of action at common law could not easily be applied to enforce many of the rights recognized by the merchants (e.g. the rights of the different parties to a bill of exchange) except by stating the custom in some detail, and giving an action on the case based upon the custom thus stated. But towards the end of the seventeenth century the courts were able to revert to the position taken up by Brooke and Coke. Their knowledge of mercantile custom was growing greater; and so it was decided

1 Brooke, Abridgment, Customs pl. 59, "Information in Scaccario vers marchant pur lader vine in estrange niefe. Le defendant plede lycence par le roy fait a J. S. de ceo faire, quel J. S. aver graunt son auctoritie inde al defendant, et quod habetur consuetudo inter mercatores per totam Angliam que un poet assigner tyel lycence ouster a un auter et que l'assigne enioyera ceo etc. que fuit demurre in ley, et fuit agre pur ley, que home ne puit prescriber custome per totam Angliam, que si soyt per totam Angliam, ceo est un commen ley et nemye un custome, contra si le custome ust estre plede d'estre in tyel citye ou countye."

2 Cf. Y.B. 2 Hen. IV. Pasch. pl. 5, cited vol. iii. 386 n. 3.

3 Co. Litt. p. 182a.

On this matter generally in its application to negotiable instruments see Street, Foundations of Legal Liability ii 347-350.

In Barnaby v. Rigalt (1633) Cro. Car. 301-302, error was assigned because the plaintiff was not shown to have been a merchant at the time of the delivery of the bill of exchange, which was the subject of the action; but judgment was affirmed because he was named a merchant in the declaration; cp. Edgar v. Chut (1663) Keb. 592, where, though it was said that the drawer or payee of a bill of exchange need not be a merchant, it was assumed that the remitter and drawee must be. As a matter of fact, bills of exchange were before this date ordinarily used by Englishmen travelling abroad; thus Evelyn says in his diary, May 6, 1645, "the bills of exchange I tooke up from my first entering Italy till I went from Rome amounted but to 616 ducati di Banco"; and in the Memoirs of Sir John Reresby (Ed. Cartwright 1875) 26, Sir John states that in 1654 he stayed no longer in Paris "than to get my clothes and to receive my bills of exchange."

VOL. V.-10

that it would apply to any mercantile transaction irrespective of the status of the parties.1 The various actions on the case based on mercantile custom were giving rise to recognized legal rights. It was no longer necessary to set out the custom in order to justify or explain those legal rights, because they were regarded as depending, like any other rights, on the common law.2

But though the law merchant had thus become part of the common law, and applicable like any other part of the common law to all Englishmen, it was still a body of customary law. From the earliest period of English legal history the common law judges had exercised the power of refusing to recognize the validity of customs which they considered to be unreasonable. They naturally exercised this power in relation to these commercial customs; and its exercise fixed the limits within, and the conditions under which, they were allowed to become a part of the common law. Thus, we have seen that it was due to this control that the recognition of the status of slavery was not introduced into English law under cover of mercantile custom.* In fact, it was a familiar task upon which the common law judges were engaged when they thus set themselves to construct from a basis of commercial custom new branches of the common law. These same judges were in a similar manner constructing our modern law as to copyhold tenure; and their forefathers in the twelfth and thirteenth century had thus laid the foundation of the common law itself."

We naturally ask how these common law judges set about their work of incorporating these commercial customs into the common law. It would appear from the cases that they acted chiefly upon the evidence produced before them as to contents of , the commercial custom applicable to the case in hand. Though,

1" The law of Merchants is the law of the land, and the custom is good enough generally for any man without naming him merchant," Woodward v. Rowe (1666) 2 Keb. 132; cp. Witherby v. Sarsfield (1690) 1 Show 125; Bromwich v. Lloyd (1699) 2 Lutw. 1525.

2 Williams v. Williams (1694) Carth. 269, 270.

Cp. Smith, Mercantile Law (11th ed.) Introd. lxxviii-lxxx; as it is there said, these customs" were subjected to certain tests which were not always satisfied-e.g. the test whether they were reasonable, certain, and not arbitrary." Thus "rejecting . . affirming others . . . the king's courts . . . did much to put an end to

some .

diversity of usages.'

4 Vol. iii 507-508.

Vol. ii 177-178, 269-270.

...

5 Ibid 209-213.

7"The custom of the merchants is part of the common law of this kingdom, of which the judges ought to take notice: and if any doubt arise to them about their custom, they may send for the merchants to know their custom, as they may send for the civilians to know their law," Van Heath v. Turner (1621) Winch 24; in Pickering v. Barkley (1649) Style 132, which turned upon the question whether capture by pirates was a peril of the sea, a certificate of the merchants that this danger was considered by them to be a peril of the sea was read, and "the court desired to have Gravely, the Master of the Trinity House, and other sufficient merchants to be brought into the

as I have said, they did not hesitate to overrule such customs if they appeared to them to be unreasonable,1 they always attached the greatest importance to them. In fact they were obliged to do so, as it is difficult to see from what other source they could have derived the rules requisite to decide these cases. Sometimes also they received evidence as to the rules which were applied by the civilians. But they did not treat these rules with quite the same respect as that which they paid to commercial custom. A rule put forward as a commercial custom was more likely to find favour than a rule put forward as a rule of the civil law. Some few lawyers indeed recognized that the legal principles underlying these commercial customs could be learned only from the writings of the foreign civilians. Prynne, at the close of his chapter on the court of Admiralty, cites a long list of writers whose works might profitably be consulted.3 But these works were not easy for a common lawyer to read; and so they remained unread. It was not till the common law obtained in Lord Mansfield a judge, who was a master of this learning, that the rules deducible from the many various commercial customs which had come before the courts were formed into a coherent system, and completely incorporated with the common law. Even then the destinctive character of the rules of commercial law, and their adaptability to the ever changing needs of new commercial conditions, have caused them to preserve many characteristic features unknown in other departments of the common law.5

court to satisfy the court viva voce"; cp. Peirson v. Pounteys (1609) Yelv. 136, "The judges ought to take notice of that which is used amongst merchants, for the maintenance of traffic "; Scarreborrow v. Lyrius (1628), Noy 95-a case turning on the custom that the master can under certain circumstances borrow money on bottomry.

1 As in Van Heath v. Turner (1621) Winch 24.

2 Somers and Buckley's Case (1590) 2 Leo. 182-the Admiralty had refused to allow a plea that an agreement had been entered into to share a captured prize, and the Common Pleas permitted the Admiralty to proceed if it would allow the plea; Bright v. Cowper (1612) 1 Brownl. and G. 22-A merchant, contrary to the rule of the civil law, held not liable to pay freight on goods brought safe to port, because part had been captured by pirates; Bridgeman's Case, Hob. 11, 12-The civil law of the Admiralty expressly followed as to money borrowed by the master on bottomry; in 1712, in Assievedo v. Cambridge, 10 Mod. 771, the civilians argued before the King's Bench as to the effect upon the liability of an insurer of a capture followed by a recapture before the ship had been carried infra præsidia.

3 Prynne, Animadversions 133; besides the English writers of the time, he refers to Straccha, Shardius, Johannes Nider, Edicta regum Franciæ, Renanus Choppinus, Julius Ferretus, Henricus Ranzovius.

4 Vol. i 572-573; cp. Park, Marine Insurance (1st ed.) xlii-xliv; Smith, Mercantile Law, Introd. lxxxii.

5 Perhaps the most marked is the efficacy of commercial custom to make new law, as illustrated by the cases which show that a general custom of the merchants to treat certain instruments as negotiable will make them negotiable, vol. i 573 n. 1 this recognition by the courts of the power of commercial custom to do now what it did in the past, is the best security that commercial law will continue to be living law in touch with the real world of commerce; we may remember that Bagehot once