Europe the mode in which maritime law was administered was similar to the mode in which commercial law was administered.1 At Barcelona the prud'hommes of the sea administered maritime law, just as the prud'hommes of the merchants administered commercial law; and in the Flemish ports, and other ports in northern Europe, this method of administering the law was followed.2 But this method was not followed so universally in maritime as in commercial law. In France, just as in England, jurisdiction over maritime cases was vested in a court of Admiralty; and in France as in England this division of functions produced conflicts of jurisdiction. In France the Admiralty and the commercial consular courts often differed as to their competency to exercise jurisdiction, just as in England the Admiralty and the common law courts differed. But the results of the conflict were very different in the two countries. While in England the Admiralty was deprived of practically all its jurisdiction over commercial cases,* in France it retained an exclusive jurisdiction over all those commercial cases which involved carriage by sea."

But this difference in the mode in which maritime law was administered did not prevent a growing similarity in the principles of that law. We have seen that the commercial activities of the trading centres of the south of Europe caused the growth of elaborate bodies of maritime law." These bodies of law contained minute regulations upon topics which were either but scantily treated or were not treated at all in the codes of northern Europe. The contract of marine insurance is as we shall see a striking example. It was inevitable that these bodies of law should be used in the sixteenth century by the seaports which, owing to the trade with the Indies and America, had taken the place of the seaports of the Mediterranean.8 It is true that, in the case of those branches of maritime law which touched upon international questions, the nations differed. Selden advocated a mare clausum and Grotius a mare liberum. But, in the case

4 Vol. i 553-558.

5 Pardessus, op. cit. iv 327-the ordonnance of 1681, after enumerating a long list of matters which fell under the jurisdiction of the court of Admiralty, ends by giving it jurisdiction, "generalement de tous contrats concernans commerce de la mer, non obstantant toutes sousmissions et privileges au contraire."

Above 76-77.

7 Pt. II. c. 4 III.

8 This was effected partly by legislation—thus we have an elaborate ordinance of 1552 for Spain, Desjardins, op. cit. 105; a maritime code in 1561 for Denmark and Norway, ibid 117; and for France a comprehensive edict in 1584 as to the jurisdiction of the Admiralty, ibid 121, 122; partly by the works of authors like Straccha, ibid 104, Santerna, ibid 108, and Wertsen, ibid 113-114, who wrote in the sixteenth century; and by Grotius, above 55, Marquardus, Desjardins 164, and many others, ibid 165, 166, who wrote in the seventeenth century.

9 Above 10-II.

of the much larger body of rules of maritime law which touched upon commercial questions, the growing similarity between the commercial laws of the various states of Europe intensified the similarity which already existed between their maritime codes. In the case of maritime as in the case of commercial law the treatises of the European jurists possessed an authority which was international.

In these various ways principles and rules of commercial and maritime law, which had originated in the Italian cities and the trading centres of the south of Europe, were received by many other states, and became the basis of their commercial and maritime law. But it is time to return from our wanderings in foreign lands, and with the help of the information we have gained to examine the effect of these widespread changes and developments upon our English law.

The Beginnings of English Commercial and Maritime Law

The origins of some of the doctrines of English commercial and maritime law can be traced back to the Middle Ages; but by far the larger part of our modern commercial and maritime law is due to the reception of continental doctrines in the sixteenth and seventeenth centuries. In the case of commercial law this reception was effected partly by the legislature, partly by the Council, and partly by the various courts of law which had jurisdiction in mercantile cases-the Admiralty, the Chancery, the Star Chamber, and the courts of common law. Through these various agencies many new legal doctrines, familiar in the trading centres of Europe, became part of English law, and began to be developed on native lines by the English courts. In the case of maritime law this reception was effected mainly through the court of Admiralty. This court was well established in the sixteenth century, and had already begun to lay the foundations of English maritime law. But naturally its importance and the sphere of its jurisdiction were enlarged by the commercial expansion of the latter part of the sixteenth century. It too began to apply some of those doctrines, both of maritime and commercial law, which had been evolved in foreign lands, and to incorporate them into English law.

The history of the technical development of some of the most important of these doctrines of commercial and maritime law I shall relate in the second Part of this Book. In this chapter I shall describe shortly the mediæval beginnings of English commercial and maritime law; the agencies by means of which the 2 Ibid 546-547.

1 Vol. i 552-559.

continental doctrines were received into our law during this period; and the characteristic peculiarities arising from the manner of their reception, which begin to appear in our commercial and maritime law during this period, and become more fully developed in the next. My division of the subject will therefore be as follows: (1) The Medieval Law Merchant in England; (2) The reception of the foreign doctrines of commercial and maritime law; and (3) The peculiarities in the development of English commercial and maritime law.

(1) The Medieval Law Merchant in England. Commercial Law.

3

In England, as on the Continent,' the need for providing a special protection for the merchant and for trade led the legislators of the ninth and tenth centuries to confine trade to definite centres. In Saxon times we meet with laws which, if they did not confine trade to the "burh" or "port," made it a risky business for the purchaser to buy elsewhere, in case the goods turned out to have been stolen.2 This limitation of trade to special places which were specially protected, naturally led in England, as elsewhere, to the growth of permanent centres of commerce. It was only in these " ports" or "burhs" that money could be coined; and the market which arose under this special protection was one of the causes which gave to the borough community features which distinguished it from the other communities which made up the English state." "The general logic of the process," says Maitland, we take to have been this the king's burh enjoys a special peace: even the men who are going to or coming from it are under royal protection: therefore within its walls men can meet together to buy and sell in safety: also laws which are directed against theft command that men shall not buy and sell elsewhere: thus a market is established: traders begin to build booths round the market-place and to live in the borough." In England as abroad the king expected to be compensated for the special privileges there enjoyed. The traders must pay toll; and this right to toll

1 Above 86-87.

2 Maitland, Domesday Book and Beyond 194, and references to the Anglo-Saxon Laws cited ibid n. 1; Borough Customs (S.S.) ii lxxiv-lxxv; and cf. Tait, E.H.R. xii 774; Nottingham Records i 1, cited P. and M. i 634 n. 3; Stone, The Transaction of Sale in Saxon Times, L.Q.R. xxix 331-332.

3 Stone, ibid 326-330 suggests that it is the port rather than the burh which is associated with the rise of the permanent market.

4 Maitland, op. cit. 195.

Ibid 195, 196; E.H.R. xii 774; vol. i 139; vol. ii 387-389. 6 Domesday Book and Beyond 192.193.

is one of those franchises which were so freely granted by the Anglo-Saxon kings. Thus, in England as abroad, the right to hold these markets, and even the right to confer the privileges of a burh upon a community, passed into the hands of the great landowners; and they were not generally recognized as belonging solely to the crown till after the Quo Warranto inquiries of Edward I.'s reign.3

By that time it had become clear that the two chief centres of commerce were (i) the boroughs, and (ii) the chartered fairs. We have seen that both these centres had courts in which the Law Merchant was administered.1

(i) Some illustrations have already been given of the way in which the customary law administered in the boroughs adapted itself to the needs of the trader. We have seen that special rules relating to apprentices, to the liability of masters on their servant's or agent's contracts, to the capacity of a married woman who was a trader, to the forms and enforceability of contracts, can be traced to the fact that the borough was a mercantile community. Some boroughs provided an especially speedy process where one of the litigants was a foreign merchant; and a jury half-native half-foreign was sometimes allowed in such cases.7 Special rules were made where one of the parties to a suit wished to rely upon a document which at the time of action brought was in a foreign country. Although the borough court could not, as a rule, entertain actions which arose outside its territorial limits," it was in some cases, provided that it should have this jurisdiction if the cause of action were a trade contract or arose as between foreign merchants.10 In some boroughs we meet with various sets of rules which aimed at protecting the honest pur

1 Domesday Book and Beyond 194; vol. i 19-20. 2 Ibid 140.

3 Ibid 87-90.

4 Ibid 535-540.

Ibid 536-537; vol. ii 387-389; vol. iii 387; see also Law Merchant in London, E.H.R. xxxvii 242 seqq. for some details as to the London courts.

6 Vol. i 537 n. 1; and Borough Customs (S.S.) i 183-184 there cited; cf. E.H.R. xxxvi 242-243.

192.

7 Borough Customs (S.S.) i 201-citing the London Liber Albus i 292; ii 191,

8 Liber Albus (R.S.) i 212, 213; and these rules were borrowed by Lincoln, Borough Customs (S.S.) i 207.

9 Vol. i 149; cf. E.H.R. xxxvii 246-247.

10 Liber Albus (R.S.) i 215, 216, "Item, en pleyntes de dette et accompt, et autres personels contractz faitz parentre marchaunt et marchaunt, si le pleintif counte que le defendaunt a ascune ville marchaunt, ou en lieu marchaundable deinz le roialme, bargana ou achata de mesme le pleintif ascuns marchaundises, ou receust ses deniers pour luy paier, livrer, ou eut rendre accompte en ascun lieu deinz la citee de Loundres; en tiel cas, le defendaunt par usage serra mys a respounder, nient contrusteaunt que le contrait se fist hors de la citee"; there is a similar provision at Cork about 1339, Borough Customs (S.S.) i 213, 214; for the same rule in the case of the fair courts see vol. i 536 n. 11; above 89 n. 4.

1

chaser of stolen goods; but these borough rules, except in the city of London, did not become a permanent part of English law. It was only upon an honest purchaser in market or fair, that the common law conferred any such privilege; and by Edward IV.'s reign the London privilege had come to be based on the assumption that all shops in the city of London were market overt for sales effected by the shopkeepers. This privilege has, from the end of the sixteenth century, been strictly limited to sales in the shop by the shopkeeper of the articles in which he deals. It does not apply to sales not in the shop, or to sales to the shopkeeper; and it only applies to bona fide purchasers. Neither in borough nor in fair does there appear to have been any liability for the deficient quality of goods sold, except by virtue of an express warranty.

8

But though commercial needs sometimes influenced the jurisdiction and procedure of the borough courts, and inspired certain of the rules of law laid down by them, commercial law does not, as Miss Bateson has pointed out, hold a large place in the borough custumals. "Merchant law," she says, "appears in these codes as only a subsection, chiefly interesting to the clerk of the borough court for the forms of its piepowder court, its rapid procedure, its arrangements for the foreigner, and the trader travelling from place to place. That our custumals have so little to tell of the rules of hosting and brokerage, of the beginnings of the negotiable instrument, or the responsibilities of partnership, of rules concerning the delivery of goods, of owners'

1 Borough Customs (S.S.) ii lxxvi-lxxviii-Miss Bateson says of these rules, "The borough law of bona fide purchase was not the uniform international merchant law which was tending to grow up on this subject, in protection of the possessor's claim against that of the loser of the goods, but a law developing here in one way and there in another, according to the circumstances in which the borough was placed." 2 See below 110-III for the treatment of this subject in the fair courts.

3 Y.B. 12 Ed. IV. Pasch. pl. 22, where it was claimed that, "La Cite de Londres est auncien City de temps d'ont memory etc. et ad estre un market chescun jour en le semaigne pour touts hommes de vendre etc.; " cf. Y.B. 33 Hy. VI. Hil. pl. 15.

4" Every shop in London is market overt for such things only which by the trade of the owner are put there to sale; and when I was recorder of London I certified the custom of London accordingly. Note Reader the reason of this case extends to all markets overt in England," per Coke, the case of Market Overt (1596) 5 Rep. 83 b; this case is reported also in Popham 84, 1 Anderson 344, Cro. Eliza. 454, and Moore 360; the best modern account of this custom will be found in Scrutton J.'s judgment in Clayton v. Le Roy [1911] 2 K.B. at pp. 1038-1045; he points out at p. 1041 that the custom "is confined to open sales in shops of goods usually sold there, and in the time of Elizabeth importance was attached not only to the sale being in an open part of the shop, but to the sale being visible to passers by in the street."

Hargreave v. Spink [1892] 1 Q.B. 25; Clayton v. Le Roy, last note.
Y.B. 33 Hy. VI. Hil. pl. 15.

7 Borough Customs (S.S.) ii 182, 183, citing the customs of Grimsby (1259), Exeter (1282), and Lancaster (1562); the Berwick Gild Statutes, cited ibid 182, seem to make the seller liable if he has been guilty of fraudulent concealment. 8 Borough Customs (S.S.) ii lxxxv.