determined such matters as the position in the state held by the great feudatories, the various kinds of tenure, or the condition of the labouring classes, we can see that they share this character with the Law Merchant. No doubt there are broad differences between the laws upon these topics which prevailed in the various countries of Europe, just as there were broad differences in their political conditions. But it is well to remember that the rules of the Law Merchant were not the same all over Europe. One set of maritime customs prevailed in the northern countries of Europe, another in the Mediterranean towns and seaports;1 and there were small varieties in the commercial and maritime laws of the different states in both these parts of Europe.2 Why then have the cosmopolitan characteristics of the Law Merchant always seemed to lawyers of many different ages and countries to be its most striking feature? It seems to me that the cosmopolitan features of the Law Merchant, though existing alike in mediæval and in modern times, are rather a modern than a mediæval peculiarity. I very much doubt whether these features would have seemed peculiar to a mediæval merchant or lawyer. The merchants were simply one of the many sharply defined classes of mediæval society;" and the customs of all these classes possessed cosmopolitan characteristics similar in kind if less in extent; while the civil and canon law possessed them in a far higher degree. But to et legibus audiantur. Quum transmarini negotiatores inter se causam habent, nullus de sedibus nostris eos audire præsumat, nisi tantum modo suis legibus audiantur apud telonarios suos"; this idea of a personal law may have had some influence in earlier days upon the manner in which commercial usages spread over Europe; but it was mainly the influences mentioned in the text which are at the root of the cosmopolitan character of the Law Merchant of to-day; as Goldschmidt, op. cit., and Huvelin, Essai Historique sur le droit des Marchés et des Foires 384, 385, point out, this passage does not refer to judges elected by the merchants; these telonarii were royal officials appointed to collect the dues payable, Huvelin, op. cit. 389 n. 2. 1 Vol. i 527-528; below 100. 2 Mitchell, The Law Merchant 1-94 and authorities cited 8 n. 1; as Mr. Mitchell says, at p. 9, though "Everywhere the leading principles and the most important rules were the same, or tended to become the same," yet that, "each country, it may almost be said each town, had its own variety of Law Merchant," all being, however, "varieties of the same species"; thus we often find that cases are to be decided "secundum consuetudinem curiæ," see the Breve Pisani Communis (1286) i. c. 33; Statuta Pisani (Ed. Bonaini) i 89, 90; the Breve Consulum Curiæ Mercatorum (1305) § 82, ibid iii 59, 60. The Statuta Communis Bononiæ (1250) cited Goldschmidt, op. cit. 173 n. 105, direct "quod jus fori et mercati reddatur secundum consuetudinem fori sive mercati "; Straccha, De Mercatura (ed. 1553) 157b, talking of the contract of hire says, "Contractus a consuetudine contrahentium et loci interpretationem recipiunt"; the Munimenta Gildhallæ (R.S.) II. i 206 speaks of the "usus et consuetudines feriarum et villarum mercatoriarum "; the Red Book of Bristol 62 notes that the methods of dealing with absent defendants are very various, so that, "nullus omnino processum legis mercatoriæ in ea parte scire nec cognoscere poterit." The "Breve "--a document we frequently meet with in collections of Italian laws-was a short manual containing the oath of the Magistrate and his duties, Pardessus, Collection des Lois Maritimes iv 557; generally each Art had its Breve. Vol. ii 464-466; vol. iii 456-458; vol. iv 402. the merchant or lawyer of modern times, accustomed to separate states and separate systems of law, the retention of these features was and is a peculiar feature; and, therefore, modern lawyers from the seventeenth century onwards have noted it as the most distinctive feature of that law. Why then, we must ask, were the cosmopolitan features of the Law Merchant retained and even emphasized at a time when other branches of law were losing their cosmopolitan character? There are, I think, three sets of reasons for this phenomenon. The first set of reasons is connected with the necessary and permanent conditions of trade, the second set is connected with the conditions of trade in the Middle Ages, and the third, and in my opinion, the most important set, is connected with the manner in which the Italian commercial law has permeated the whole of Western Europe. In the first place, any sort of trade means travel, and trade carried on by sea means travel over large distances. Men of different countries meet on common businesses and under similar conditions. The business of carriage by land or by water, the business of exchange, present similar problems and generate similar rules. On the other hand, the organization and the activities of the more stationary classes of society tend to develop small differences which gradually crystallize into very different rules of law; and the growing separation between nations, which necessarily accompanied the rise of the modern territorial state, tended to strengthen these differences. In the second place, the lawlessness of mediæval life necessitated the formation of unions of traders in gilds or corporations. These corporations combined to obtain from the ruling powers- 1 The earliest statement comes from 1473; in Y.B. 13 Ed. IV. Pasch. pl. 5 the chancellor said the case should be decided "secundum legis naturam qu'est appell par ascuns ley Marchant, que est ley universal per tout le monde"; but it is from the earlier part of the seventeenth century that this characteristic is most insisted on; see Gentili, De Jure Belli, Bk. i c. 1 (Holland's Ed. pp. 7, 8), “Et haec gentium juris (mercatores) non sane neglexerint, quæ valde ad ipsos spectaverint, et ad commercia ipsorum. Sunt scilicet juris gentium commercia. Et sic itaque notum de populis omnibus esse potuit; " Malynes, Lex Mercatoria 2, "Lex Mercatoria in the fundamentals of it is nothing else but (as Cicero defineth true and just law) Recta ratio, natura congruens, diffusa in omnes, constans, sempiterna. . . . Howbeit some do attribute this definition unto jus gentium or the law of Nations. But, the matter being truly examined, we shall find it more naturally and properly belongeth to the Law Merchant;" Davis, Impositions (ed. 1656) c. 3, "The Law Merchant, as it is a part of the Law of Nature and Nations, is universall and one and the same in all countries in the world"; Zouche, Jurisdiction of the Admiralty Asserted, Assert. I, cites Davis and says that it is clear from his words that, "the causes concerning merchants are not now to be decided by the peculiar and ordinary laws of every country, but by the general law of nature and nations"; if we do not get in the books of continental writers like Straccha, Marquardus, or Ansaldus such clear statements of the cosmopolitan character of the Law Merchant it is because, as the authorities they cite show, they took it for granted. from king or feudatory-the privileges which they needed to enable them to conduct their trade. When they met to trade in fairs or markets, they got a special protection against lawlessness, and a special set of judicial privileges, which enabled a speedy justice to be administered to all who frequented the fair or market.1 If they were settled bodies carrying on trade in some defined place they got special privileges to regulate the affairs of their trade. No doubt many other classes of men got their peculiar franchises and privileges in the Middle Ages-notably the landowners great and small. But their franchises and privileges were often used as a means to assert a turbulent independence of all authority. They were the great impediments to the establishment of a settled order and a uniform law; and as soon as a strong central government arose, they went down before it. But the merchants were the natural allies of efficient government; and conversely such a government was naturally inclined to show favour to men who increased the wealth of the country, and from whom a large revenue could be drawn. Thus the growth of the power of the state, which was fatal to many franchises and privileges, was favourable to the growth of the franchises and privileges possessed by the merchants. They were allowed to create and to develop their own commercial and industrial organizations, and their own machinery of justice. It is obvious that these liberties increased the existing tendencies to evolve similar rules to govern similar mercantile transactions. In the third place, the influence of the Italian cities was more marked and more permanent in the departments of commercial and maritime law than in any other branch of law. This is due firstly to the fact that, all through the Middle Ages, Italy was the centre not only of the legal but also of the commercial life of Europe; and secondly to the fact that in Italy a unique system for the settlement of mercantile disputes had been devised, which gave due weight at once to the exigencies of commerce, and to the establishment of technical legal rules based upon the facts of commercial life. We shall see that for these reasons, the Italian solutions of the commercial and maritime problems to which a highly organized system of industry and commerce give rise, and the Italian machinery for applying these solutions to concrete questions, have had a direct and enduring influence upon the law and the institutions of many European states. From the thirteenth century onwards these Italian influences were directly affecting all the countries both of Eastern and Western Europe. The settlements of Italian merchants in many 1 Vol. i 535-538; below 86-88. * Below 90-96. 2 Vol. i 540-543; vol. iv 321-324. countries in Europe, and their presence at the great fairs 2 familiarized the nations of Europe with their commercial methods, their commercial organization, and their commercial law; and when, in the sixteenth century, the new geographical, political, and religious conditions created new centres of commerce, the reception of the Italian methods and organization and law, already begun, was completed.3 The development of commerce and industry, and the importation from Italy of legal principles adequate to rule this development, proceeded on similar lines in all the countries of Western Europe. This movement was not directly affected by religious and dynastic wars, and the clashing of the new independent states into which Europe was now definitely divided; for though religion and politics find it necessary to concern themselves with commerce, commerce is not directly concerned with either. Thus, while the canon law was ceasing to be a universal code for the whole of Western Europe, while the different countries of Europe were becoming more and more separate, and while, in consequence, many branches of their law public and private were losing some of that cosmopolitan character which they had possessed in the Middle Ages, commercial and maritime law were becoming not less, but more cosmopolitan. They were acquiring their modern international character. This permeation of Italian commercial law was facilitated by the Reception of Roman law-indeed it is one, and perhaps the most important phase of that Reception. We shall see that the rules of this commercial law were very far from being pure Roman law-that they represented living mercantile custom far more than any of the rules of the civil and canon law. But mercantile customs had been worked up into technical rules of law in an atmosphere and with the help of juridical concepts derived from these two systems. It was, in fact, the application of these juridical concepts to the ever-developing mercantile customs of Italy, which had enabled the merchants and statesmen and lawyers who applied them, to construct a system of mercantile courts and a permanent body of mercantile law-just as in the England of the thirteenth century the application of similar juridical concepts to our native customs had enabled the lawyers of the school of Bracton to establish the jurisdiction of our common law courts, and to lay the foundations of our common law. This mercantile law, therefore, could easily be acclimatized in states which had 1 Below 95, 113. 3 Vol. iv 244-246; below 129 seqq. 5 Vol. iv 243; below 77-85. 7 Vol. ii 269-270. 2 Below 92. 4 Vol. iv 244-245. * Below 77-85. It was received the technical rules and ideas of the Roman law. not so easily acclimatized in England, because England had never received these technical rules and ideas to anything like the same extent.1 In England therefore the reception of these rules and ideas was slower and more difficult. But though this has led to the growth of considerable differences in the mode of the development and in the ultimate form of the rules themselves, they were received in England; and therefore, in England as elsewhere, it is to them that we must look for the origins of our modern commercial and maritime law. The manner in which these branches of English law have originated, and the peculiarities in their development, determine the manner in which we must trace their history. I shall relate it under the following heads: Firstly, the Italian Law Merchant and its reception throughout Europe in the sixteenth century; and secondly, the beginnings of English commercial and maritime law. The Italian Law Merchant and its Reception throughout Europe in the Sixteenth Century The Romans possessed no separate system of mercantile tribunals and mercantile law. The ordinary law and the ordinary judicial tribunals sufficed both for traders and for non-traders, because both the law itself and the procedure of the tribunals had been gradually adapted to the needs of commerce,3 and because the peace maintained by the Roman Emperors gave to traders an ample security. Thus the commercial and maritime law of Rome must be sought in many different parts of the Corpus Juris. Such topics for instance as sale, hire, bankruptcy, agency, or shipping, are not grouped by themselves, but form simply a part of the ordinary law. To the English lawyer this may not appear to be strange. But in point of fact it is strange, for the English and the Roman systems are perhaps the only two systems in the world which have developed their commercial and maritime law as part of their ordinary law. On the Continent these bodies of law have been developed by a separate set of tribunals, and at 1 Vol. iv 228-239, 285-289; below 151-154. 2 Morel, Les Juridictions Commerciales au Moyen Age 14, 15. * Ibid 15-17. 4 Ibid 19 n. 1, citing Thaller, Annales du Droit Commercial (1892) 156, “Le commerce n'a pas à se façonner sur un type corporatif, quand les pouvoirs public placés au dessus de lui savent le protéger et le comprendre." $ Pardessus, Collection des Lois Maritimes i 85-132, has collected all the relevant passages from the Corpus Juris which relate to maritime law; for a short account see Desjardins, Introduction Historique à l'Etude du Droit Commercial Maritime 12, 13. VOL. V.-5 |