trade." 1 The powers of the Officium Gazarii over all matters relating to maritime law were equally wide. It decided all questions between shipowners and their crews, and between shipowners and merchants; all questions turning upon damage to cargo, and jettison; and all matters dependent upon, arising out of, accessory to, or connected with the foregoing. At Pisa the jurisdiction of the Curia Maris was quite as extensive; and in addition the curia artis lana, the consuls of the seven arts, and the captain and consuls of the Sardinian ports, had also a large jurisdiction over matters which fell within their respective spheres. That matters were similarly organized in the other Italian towns is clear from the fact that Bartolus could state as a general rule that "consuls elected by the college of Merchants have ordinary jurisdiction." Straccha, Marquardus," and Ansaldus regard the possession of such jurisdiction as the most usual privilege belonging to the merchants of a state.

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The question at once arises, What was the law which these mercantile tribunals applied? The answer would seem to be that in purely maritime matters there was a basis of rules derived from the civil law, the Basilicas, and the Rhodian sea law; that in commercial matters there was a basis of rules derived from the civil and canon law; but that the most important

1 Leges Genvenses, Mon. Hist. Pat. xviii col. 537, "Omnes et singulas differencias lites quæstiones et causæ quæ inter mercatores Ianuenses orientur causa mercandi."

2 Ibid cols. 742, 743, "Quæstiones vero et causæ quæ vertuntur seu verti possunt inter patronum vel marinarium sive fidejussorem eorum, . . sive inter patronum et mercatorem, occasione rerum positarum vel oneratarum in navigio, et emendationis, vel damni quæ vel quod pateretur pro dissipatione diminutione vel mancamento rerum et mercium prædictarum, sive occasione nauli vel jacti vel projecti . . . ac in et circa dependentia emergentia accessoria et connexa prædictis . . . audiant cognoscant declarent diffiniant corrigant et emendent."

3 Black Book of the Admiralty (R.S.) iv. 473-475, "The consuls determine all questions which concern freight, damage to cargo laden on board ship, mariners' wages, partnerships in shipbuilding, sales of ships, jettison, commissions entrusted to masters or to mariners, debts contracted by the master who has borrowed money for the wants or necessities of his vessel, promises made by a master to a merchant, or by a merchant to a master, goods found on the open sea or on the beach, the fitting out of ships galleys or other vessels, and generally all other contracts which are set forth in the Customs of the Sea."

* Statuti Pisani (Ed. Bonaini) i pp. 89, 90-The Breve Pisani Communis of 1286; iii pp. 351-445-The Breve Curiæ Maris of 1305; ii pp. 863-889-The Breve Artis Fabrorum of 1305; iii pp. 651-741-The Breve dell'Arte della Lana. There are similar Breves for many other Arts.

Cited by Straccha, op. cit. 260; he adds, 260b, "Non propterea ordinariorum [judicum] jurisdictio adempta censetur quinimo et ipsi mercatores et consules ordinariis judicibus subjiciuntur."

& Op. cit. Bk. iii c. ii § 1 cited above 72 n. 6; ibid Bk. iii c. vi. § 54.

7 De Commercio et Mercatura, Discursus Generalis (ed. 1689) §§ 41-44 (p. 631)"Solet etiam inter privilegia Mercaturæ recenseri, quod eorum stylo stari oporteat, ita ut hic prævalere debeat dispositioni Juris Communis. . . . Et ob id jure merito quando tractatur de legibus publicum commercium concernentibus, adhiberi soleat votum et judicium mercatorum."

...

sources both of commercial and maritime law were the rules made by these courts to meet the new needs and the new problems set by an expanding commerce carried on under mediæval conditions. These rules were the basis of those maritime and commercial statutes of the Italian cities and the ports of Southern Europe, which have exercised so great an influence on the commercial law of Western Europe.

Mr. Ashburner has pointed out that in the earlier maritime statutes there is a constant reference to "usus" and " consuetudo"; and he justly thinks that the authorities "clearly point to the existence, if not of a general sea custom for the whole Mediterranean, at least of a custom extending beyond the jurisdiction of the individnal state." The detailed comparison which

he makes between the provisions of the civil law, the Basilicas, and the Rhodian sea law on the one side, and the provisions of the Italian statutes of the twelfth and thirteenth centuries on the other, illustrates the manner in which the elaborate Italian codes of maritime law were built up upon the basis of the law of Justinian and the Eastern Empire. Sometimes the provisions of the Roman law were retained. But more often they were varied in all directions; and a large superstructure of detailed rules, evidently suggested by the concrete problems which came before the maritime courts, gradually superseded the original basis. If we said that the Roman rules had been turned to modern uses we should not perhaps be saying anything historically incorrect; but we should be exaggerating the importance of the historical basis. These Italian maritime courts, were doing for maritime law what the English common law courts were doing for the English common law. They were building up from a basis of medieval maritime custom and Roman law a wholly new system of maritime law.

The influence of the civil law upon the Italian commercial law was of the same general character as the influence of the civil law, the Basilicas, and the Rhodian sea law upon the Italian maritime law; but it was greater in extent.

In the first place, the civil law conferred both upon commercial and upon maritime law a service of a like character to

1 The Rhodian Sea Law cxxii-cxxv.

* Ibid cxxix-ccxciii; as M. Lefort says, Bensa, Histoire du contrat d'Assurance au moyen âge (traduit par Valery), Introd. viii n. 1, "Il faut noter, d'ailleurs, que les principes du droit commercial recueillis par les Romains et conservés au Digeste, principalement sous le titre De Lege Rhodia de jactu, ont précédé toute la legislation commerciale d'Italie. On doit admettre. . . que cette partie de la loi romaine était des mieux connues et des plus appliquées au moyen âge puisqu'on trouve bon nombre de manuscrits des onzième et douzième siècles qui ne contiennent que ce titre, détaché du reste du corps des lois, pour l'utilité des navigateurs et des commerçants.'

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that which it conferred upon many other branches of law by supplying it with a concise technical language. This service was conferred mainly through the profession of the Notaries; and since the work of this profession has had a very permanent influence upon commercial law I must say a few words about it. The term "Notary" meant originally a scribe who used "notæ "-in other words, a shorthand writer.2 These scribes were employed under the Roman Empire by the Tabelliones. These tabelliones either held a public position as clerks to the provincial or municipal magistrates, and in that case they both attended to the non-contentious business of the courts and drafted documents; or they were employed solely by private clients in the latter capacity. In either case these documents drawn up by them had greater weight than documents drawn up by a private person. They were instrumenta publica confecta. But they were not entitled to the full status of instrumenta publica till registered in court. In the earlier medieval period similar officials called notaries, attached to the courts of pope, emperor, and counts palatine, make their appearance; and it came to be thought that all notaries must be officers of a court, and therefore appointed by pope, emperor, or count. Thus there arose a class of notaries who had been given a definite status by papal or imperial authority. The fact that they thus acted under official sanction, the fact that they were officers of a court, tended to invest the documents drawn by them with greater sanctity. In the course of the twelfth and thirteenth centuries these documents not only attained to the dignity of instrumenta publica, they also gained executive force, i.e. they could be enforced like judgments of the court. Thus it happened that almost all mediæval documents of any importance were drawn by them. Obviously in the trading centres of Europe the preparation of commercial documents must have formed the largest part of their work; and a very cursory glance at any collection of these documents will

1 See the account given by Brooke, The Office and Practice of a Notary in England (ed. 1901), by Cranstoun; the following account is based on chapter 1 of that book; cf. Mitchell, op. cit. 108-110.

3 Ibid 3-5.

4 Ibid 6-8.

2 Brooke, op. cit. 3. Ibid 9-10; Mitchell, op. cit. 110 n. 1; Blancard, Documents inédits sur le commerce de Marseilles au moyen âge i xxxvi-xliv gives us an account of the regulation of the notaries of Marseilles; in the collection which he has printed there are comprised the Notules d'Amalric-1031 abstracts of commercial documents drawn by the notary Amalric in 1247-1248; on the death of a notary his books were either handed to his successor, or deposited among the public records; the Notules d'Amalric have been preserved because they were thus deposited; for references to other collections see Ashburner, op. cit. cxxv-cxxviii; they never gained so important a position in English law; as to this see below 114-115.

Blancard, op. cit. i xxxvi says, "Sa fonction avait un caractère si universel que rien n'y échappait, ni la politique, ni l'art, ni le commerce, ni l'industrie, ni la vie publique, ni le foyer."

show the large extent of the influence which they exercised upon commercial law. It was similar in kind to the influence which the English conveyancers have exercised upon the English land law. They made the common forms used in the trading centres of Southern Europe, and when the law used in these centres spread over the rest of Europe, these common forms came with it, and are the basis of the documents which Merchants all over the world are using to-day.2

In the second place, the part of the civil law which specially influenced the growth of the Italian commercial law was, as we might expect, the law of obligations. It is not too much to say that the fullness and logical exactness of this part of the civil law has made it one of the most important of the bases of modern commercial law. The classification of contractual obligations to be found in the Corpus Juris, and the minuteness with which the rights and liabilities of the parties are analysed; the discussion of the general nature of contractual obligations; the many matters relating to their operation and the causes of their invalidity which are grouped round the Stipulatio; the analysis of delictual obligations, and especially of such topics as dolus and culpa-made up a body of law which could deal adequately with very many of the new commercial problems of the time. In the fourteenth and fifteenth centuries the treatment by the glossators of the topics of the new commercial law is generally to be found in their comments on the titles of Code and Digest which deal with obligations contractual or delictual;3 and in the seventeenth century a considerable section of the great treatise of Marquardus is grouped round the leading heads into which the Roman contract system falls.1

The influence of the canon law was different from that of the civil law, but not less extensive. The civil law influenced mainly the technical development of the law. The canon law influenced mainly the substance of the law, and the machinery

1 Vol. iii 218-219.

2 See e.g. the charter party made at Pisa in 1263 which is cited by Ashburner, op. cit. clxxix-clxxxii; we may remember that the terms "insurance" and "policy come from Italy, and that, "up to recent times all policies began with the words, In the name of God Amen!' imitating the customary old Italian commencement 'Dio la salvi, Amen!' The pious phrase is no more known to the underwriters of the present day. Still every policy . . . finishes with a sentence in use for upwards of three centuries, And it is agreed by us, the insurers, that this writing or policy of assurance shall be of as much force and effect as the surest writing or policy of assurance made in Lombard Street.' The Lombards are gone, but Lombard Street still lives at Lloyds," Martin, History of Lloyds, 31, 32; see below 138 n. 5, 139, 143. 3 Thus Goldschmidt, op. cit. 174 n. 106, cites the commentary of Bartolus on the passages of the Digest dealing with Mandatum, and the commentary of Baldus on the passages of the Code dealing with the same subject, to prove that, “in causis mercatoriis æquitatem præcipue spectandum."

4 Op. cit. Bk. ii cc. viii-x.

by which it was applied. The reason why the canon law was able to exert this influence upon the development of commercial law rests at bottom upon the manner in which the Canon law put into legal form the religious and moral ideas which, at this period, coloured the economic thought of all the nations of Western Europe.1 It is true that the precocious political and commercial development of the Italian cities caused these religious and moral ideas to be subordinated, at an earlier date than elsewhere, to the desire to increase the wealth and power of the state.2 But Italy, like the rest of Europe, felt these influences; and therefore the rules of the canon law, in which they were elaborated in legal form, necessarily had a wide and varied influence on the substance of the law.

Of the nature and extent of that influence it is difficult to speak summarily; and it would be a long and difficult task to appraise accurately the extent to which the canon law retarded, and the extent to which it assisted at different times and in different places, the development of commercial law. On the whole it is probable that its influence was beneficial. In earlier days when commerce was in its infancy it helped to keep the peace and protect the persons of the merchants; and in later days, when commerce was becoming organized, it helped to guarantee the sanctity of mercantile transactions. No doubt the necessity of evading its stern prohibition of usury made the developments of certain branches of the law tortuous and complicated. But there is reason to think that the effects of this prohibition have been exaggerated; and we shall see that it did not in fact impede commercial development so greatly as is sometimes supposed. On the other hand the canonist's view that faith should be kept," in whatever form the promise

1 Vol. ii 468-469; vol. iv 316-319.

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2 Vol. iv 318; thus at Genoa in 1403 it was enacted that anyone who, having entered into a mercantile contract "maxime per viam cambii vel assecuramenti,' alleges that it is illegal or usurious, and takes proceedings to have it declared void before any court, lay, or ecclesiastical, shall be fined-" Si enim, per hæc et similia impedimenta, instrumenta cambii et alii contractus mercantiarum facta cum scripturis vel sine non possent executioni mandari, verteretur in magnum damnum et incommodum civium et mercatorum Ianuensium, qui communiter faciunt similes contractus, nec aliter possent exerceri mercimonia, nec navigia navigancia expedire," Mon. Hist. Pat. xviii col. 971.

ទ Morel, op. cit. 75, 76.

Below 86-87.

5 What Huvelin says, op. cit. 358, of the evolution of the influence of the peace of the market can be applied to the evolution of the influence of the canon law-" Par une autre evolution... elle (la trêve conclut en faveur de commerce) a changé d'objet. Après avoir, à l'origine, assuré la securité matérielle du trafic, elle a fini par en assurer principalement la sûreté intellectuelle et morale."

6 Pt. II. c. 4 I. § 1.

7" Ob utilitatem publicam Fides vel, ut Baldus ait, veritas negocii simpliciter attendi, et præ ceteris stricte observari debeat," Marquardus, Bk. ii c. viii § 2; Straccha, op. cit. 247-247b, explains that Bartolus said nothing inconsistent when he