thus prevented our boroughs and fairs from doing much for the development of our commercial law during this period. For reasons which we must now explain they were unable, in the sixteenth century, to assume jurisdiction over that larger commerce in which Englishmen then began to take an active part.


We have seen that the outstanding feature of English legal history in the Middle Ages was the presence of an expanding common law which was gradually and quietly absorbing the smaller local jurisdictions.1 Since the courts of fair and borough had never acquired a jurisdiction over foreign trade, and had never therefore had a chance to develop the legal doctrines necessary to govern the more complicated transactions of such a trade, they succumbed, like the other local jurisdictions, to the encroachments of the common law. In the course of the sixteenth century the common law courts had assumed jurisdiction over the larger number of cases connected with the internal trade of the country; 2 and the new principles of contractual and delictual liability which they were developing rendered the law which they administered quite adequate to deal with these cases. Cases connected with foreign transactions were, as we have seen, outside the scope of the common law courts in the earlier part of the mediæval period. If a contract were made abroad no jury could come from the foreign place to find the facts. But these cases rarely came before the courts of boroughs or fairs. When they arose they often involved considerations of mixed law and diplomacy. Naturally therefore they came before the Council or the Chancery. Thus in Edward I.'s reign the Lord Mayor of London said that he could not grant a request to enforce a judgment of the fairs of Champagne, in which the "défense des foires," had been threatened, without a reference to the king and Council; " and in the Venetian Calendar questions which arose between English and Venetian merchants were generally referred to the same tribunal. In Edward IV.'s reign the chancellor considered that, because cases concerning merchant strangers were outside

2 Vol. i 569.
Ibid chap. ii §§ 6 and 8.

1 Vol. ii 310. 3 Vol. iii 428-453. 5 Vol. i 534; vol. ii 309-310; the exhaustive analysis made by Prynne, Animadversions on the Fourth Part of Coke's Institutes 90-95, is really quite conclusive on this point; see especially his references to the Doctor and Student ii c. 2; Perkins, Profitable Book §§ 121, 494; F.N.B. 114 B; but the maze of distinctions drawn in cases which turned on the proper venue of the jury when disputes arose out of facts happening in different counties, Reeves, H.E.L. ii 409-414, afforded an opening of which the later lawyers, and especially Coke, took advantage, below 118-119, 140142.

❝ Above 98 n. 2; C. Walford, op. cit. 259-260; E.H.R. xxxvii 247.

7 Calendar of State Papers (Venetian) 126—in 1471 the Council at the suit of William Cowper sentenced the Venetian nation to pay £1200 for damages to a ship captured by the Venetian captain general; ibid 131, Edward IV. reduced the sum to £750; for early instances of such references see E.H.R. xxxvii 247 and n. 5.

the scope of the common law, they were therefore subject to his equitable jurisdiction.1

But during the latter half of the fifteenth century the rivalry which had sprung up between the common law courts on the one side, and the Council and Chancery on the other, led the common law courts to wish to encroach upon the sphere of the Council's and the Chancery's jurisdiction; and this attitude on the part of the common law courts led to an expansion of common law doctrine in many directions. Three of these lines of expansion are especially important in relation to the commercial jurisdiction of the common law courts. In the first place the development of the action of assumpsit was giving to the common law an adequate remedy for the enforcement of contracts. In the second place, the development of the action of trover was giving it an adequate remedy for the enforcement of title to goods. In the third place there was a movement towards some modification of the strict rules of venue which, at an earlier period, had barred the common law courts from hearing cases which turned upon acts done or transactions entered into abroad. With the beginnings of the development of the actions of assumpsit and trover I have already dealt. At this point I must say something of the beginnings of those modifications of the rules of venue which were a condition precedent to the attainment of any sort of commercial jurisdiction by the common law courts.

Under the old common law the parties to an action were required to designate with the greatest particularity the place where the events alleged in the pleadings had happened, because the sheriff could not otherwise have summoned a jury who would know the real facts of the case. But this strict rule was found to be inconvenient in cases in which the facts alleged happened partly in one county and partly in another. It was this inconvenience which at the end of the thirteenth or the beginning of the fourteenth century, induced the judges to draw the

1Y.B. 13 Ed. IV. Pasch. pl. 5, "C'est suit est pris par un marchant alien, que est venus per safe conduit icy, et il n'est tenus de suer solonques le ley del terre, a tarier le trial de xii homes, et autres solempnities del ley de terre, mes doit suer icy, et sera determine solonque le ley de nature en le Chancery, et il doyt suer la de heur en heure et de jour [en jour] pour le spede de marchants. Et coment que ils sont venus deyns le royalme, pour ce le Roy ad jurisdiction d'eux de mitter d'estoyer a droit, etc., mes ce sera secundum legem natura que est appell par ascuns ley Marchant, que est ley universal par tout le monde."

2 Vol. iii 350-351, 428 seqq.

3 Vol. i 332.

For the mass of decisions, often conflicting, to which this inconvenience gave rise, see Reeves, H.E.L. ii 409-412.

In the Eyre of Kent 6, 7 Ed. II. (S.S.) ii 32, 34 it was ruled that a writ of debt might be brought either in the county where a contract was made or in any county in which the defendant was resident; Staunton J. said that under the old law the writ might have been abated, "but the contrary has been the practice for a long time past."

distinction between transitory and local actions-" that is, between those in which the facts relied on as the foundation of the plaintiff's case have no necessary connection with a particular locality, and those in which there is such a connection."1 An instance of the former is an action on a contract, of the latter an action of trespass to land. "In the latter class of actions the plaintiff was bound to lay the venue truly; in the former he might lay it in any county he pleased."2 Litigants were not slow to make use of this distinction; and in 13753 an action was brought on a deed which was made at Harfleur in Normandy. The plaintiff anticipated the device used at a later period by alleging in his claim that it was made at Harfleur in the county of Kent. The efficacy of this device was not then decided upon, as the case went off upon another point.

But it was soon found that the parties to actions in this litigious age abused this distinction. Plaintiffs harassed defendants by purposely laying the venue in a distant place; and therefore statutes of Richard II. and Henry IV.'s reigns required all actions to be brought in their proper counties. These statutes were strictly enforced by the judges; 5 and Littleton takes it for granted that cases which involved the consideration of facts happening outside the realm could not be heard by the courts of common law." But the judges were quite alive to the advantages to be got by enlarging their jurisdiction; and it is clear that they were ready to adopt any workable expedient to get jurisdiction over such cases. In 14427 an action was brought in the Common Bench on a contract made in France; and counsel, though he pleaded that no action lay on such a contract in England, did not dare to risk a demurrer on this point. Newton, indeed, asserted broadly that even though the contract was made in France, an action would lie in England if the parties chose to sue there. But this was rather too sweeping, as it left unsolved the difficulty as to where the venue should be laid. No doubt there was earlier authority for the proposition that if action was brought on a contract made in a county


1 British South Africa Co. v. Companhia de Mocambique [1893] A.C. at p. 618. 2 Ibid; but, as Lord Herschell said, "It was still necessary to lay every local fact with its true venue on peril of a variance if it should be brought in issue," see S.L.C. (10th ed.) i 598-600.

3Y.B. 48 Ed. III. Hil. pl. 6.
46 Richard II. c. 2; 4 Henry IV. c. 18.

S.L.C. i 597-598.

6 Litt. § 440, "Hee that is out of the realme cannot have knowledge of the disseisin made unto him by understanding of the law, no more than that a thing done out of the realme may bee tried within this realme by the oath of 12 men.

7 Y.B. 20 Hy. VI. Pasch. pl. 21.

866 Mesque l'obligation se fist en France, uncore si suit en Angleterre, action peut estre maintenir sur ceo cyeins assez bien;" and Fortescue, Y.B. 32 Hy. VI. Hil, pl. 13, seems to have held the same view.

Palatine, the jury could be summoned from the neighbouring counties.1 But in the case of an action brought in a foreign country there were no neighbouring counties.

The judges of Henry VI.'s and VII.'s reigns got over this difficulty by laying down a somewhat narrower principle which had been hinted at in the case reported in 1375. They said that if the contract was made in England, or if any part of the contract was to be performed in England, the action could be brought there. The result was that if the contract was made in England to be performed abroad, or vice versa, action lay in the English courts. But if the contract was both made abroad and to be performed abroad, or if the foundation of the action was an act done wholly abroad, no action would lie.3 It is clear that the establishment of this principle considerably enlarged the jurisdiction of the common law courts. It enabled them to make full use of their new actions of assumpsit and trover, and to compete with the Council and the Chancery for a share in their jurisdiction over the external trade of the country. We shall see that in the following period its further development enabled them to claim not only a share but a monopoly of this jurisdiction.*

Thus, by the end of the medieval period, it had become fairly obvious that the future development of English commercial law would take place in the central courts; and, since in the central courts the merchants played but a small part compared with the part which they played in the tribunals of the cities of Italy, Germany and France, it followed that the manner of its

1 Fitzherbert's Abridgment, Visne pl. 50, citing 45 Ed. III, Mich.; this seems to have been the rule laid down as to the practice of the court by the protho-notaries in Y.B. 32 Hy. VI. Hil. pl. 13.

2Y.B. 48 Ed. III. Hil. pl. 6, Finchden says: "Si un home soit lowe per moy d'aler en mon message a Rome coment que le service sera fait hors de Roialme uncore pur le contrat fait en Engliterre il demandera son lower en cest court"; Tank puts the case of a sailor hired in England: "Il (the hire) sera demande en cest court per le comen ley et memy per la ley de Mariner "; Y.BB. 15 Ed. IV. Mich. pl. 18; 10 Hy. VII. Pasch. pl. 21; S.C. 11 Hy. VII. Hil. pl. 13; in this last case Brian thought that, though a trial of offences committed abroad might be had here"autrement touts ceux statuts sera voids"-it was otherwise as to contracts made here to be performed beyond the sea; but Fineux, Vavisor and Townshend were against him; the case is abridged by Brooke, Trialles pl. 154, and explained by Abbot C.J. in Rex v. Burdett (1820) 4 B. and Ald. 172; Fineux clearly lays it down, in Y.B. 21 Hy. VII. Mich. pl. 32, that, "Release oultre mer est void; mes si contract soit triable parcel deins ce Realm, et parcel oultre la mer, il sera trie icy en tout.'

Though in Y.B. 7 Hy. VII. Hil. pl. 1, Keble arg. said, "Si on port accion de Debt pur son salary que il fuit retenu à servir un home in Brigg oustre la mer, et le Maistre dit que il depart de luy ou ne servit, ceo serra trie icy ou le bref est port"; the reporter adds Quære de ceo; cf. Y.B. 21 Hy. VII. Mich. pl. 32, cited in the last note; Dowdale's Case (1606) 6 Co. Rep. 47 b, lays down the law in accordance with Fineux's view in the last cited Y.B.

4 Below 140-142.

Above 68-71, 93-96.

development would be in some respects unique. Whether the common law courts, the Council, or Chancery would secure the greater share of this commercial jurisdiction was, as we shall see, an open question all through the sixteenth and the earlier half of the seventeenth century. But, before we consider the results of the work of these courts in the sphere of commercial law, I must say something about the mediæval development of English maritime law. Both in England and in France this development took place in the court of the Admiralty; and in both countries the Admiralty became a serious competitor for a large share of this commercial jurisdiction.

Maritime Law.

We have seen that, till the middle of the fourteenth century, the maritime part of the law merchant was, for the most part, administered in the local courts of seaport towns." These courts sat sometimes on the seashore, and heard, as the Bristol custumal says, summarily from tide to tide "the disputes which arose between merchants and sailors, or between merchants and merchants, or between sailors and sailors, whether burgesses or foreigners." Many of them survived, and were vigorously resisting the encroachments of the court of Admiralty in the sixteenth century.* But all except the Cinque ports had succumbed before they were formally abolished in 1836.5 The law which these courts adminstered was almost certainly based upon the Laws of Oleron. It was these laws which, from the first years of the thirteenth century, had been accepted as the common maritime law of the North Sea and the Atlantic Ocean." Important seaports like London and Bristol copied them into their custumals; and, at a later date, they were copied into the Black Book of the Admiralty. Therefore if we would know what was the general character of the maritime law administered in

1 Vol. i 552; above 101.

2 Vol. i 530-532.

3 Borough Customs (S.S.) ii 193; cf. The Domesday of Ipswich, Black Book of the Admiralty (R.S.) ii 231.

4 Vol. i 531-532; Select Pleas of the Admiralty (S.S.) ii xix-xxii. 5 Vol. i 532; 5, 6 William IV. c. 76.

"Vol. i 527; cf. Desjardins, Droit Commercial Maritime 31-36; they were, as recent commentators agree, "Des sentences rendues dans de procès réals ou des déclarations sur le droit, fruit d'une longue expérience, et consignées par ces hommes rompus aux affairs maritimes dans un registre ou sur des rôles pour en perpetuer la mémoire. . . . Il est hors de doute que dans les premières annees du treizième siècle, assez grand nombre des copies des vingt quatre articles avaient été déjà déliverées aux principaux ports de mer et que les jugements de la mer se transformaient en coutumes générales pour tout le littoral de l'Atlantique et de la Baltique. Il est donc bien difficile de ne pas les faire remonter à la première partie du douzième siècle, et l'on pourra toujours demander si cette date même ne doit pas être encore reculée," op. cit. 34.

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