was expressed, helped forward the development of forms of commercial contract which were quite unknown to the civil law;1 it assisted the legislature to deal adequately with the new forms of fraud and sharp practice rendered possible by a more elaborate organization of commerce; and thus it contributed to enforce those high standards of good faith and fair dealing which are the very life of trade. These were considerable services. But to my mind the most considerable of the services rendered by the canon law was the assistance it gave to the establishment of a workable system of procedure in commercial It was the most considerable of its services, because it enabled a definition of the spheres of the lawyers and the traders to be arrived at, which allowed legal effect to be given to new commercial usages, and yet maintained a due regard for legal principles. This settlement of the respective spheres of the lawyers and the merchants I regard as one of the main causes of success of the Italian commercial and maritime tribunals in evolving a system of commercial and maritime law. I must therefore say a few words as to the manner in which it was arrived at, and as to its terms.

cases.

The consuls who administered commercial and maritime law in the Italian cities were generally required to administer justice "sine strepitu et figura judicii," or " summatim et extra ordinem," or "summarie et de plano." The question at once arose, what meaning was to be attached to these phrases? Clearly we are face to face with the same problem as that which was presented to the English judges of the thirteenth century-the combination of a due regard for the claims of substantial justice with a system

says in one place, "in curia mercatorum jura civilia servari," and in another that "agi ex nudo pacto"; "quoniam strictum illud jus, quod nuda pactio actionem non pariat, ex circumstantia personæ mercatorum temperandum moderandumque ex mente et verbo legis placuit.'

1 The contract of Insurance, Pt. II. c. 4 III. is a striking illustration; as Marquardus says, Bk. ii c. xiii § 4, it was hardly discussed at all by the lawyers before Straccha; equally striking are the rules as to assignability and negotiability of obligations, Pt. II. c. 4 I. § 2; thus Marquardus says, Bk. ii c. xv § 6, In hac enim ex praxi et stylo quotidiano observatur, æque creditorem ac debitorem, sine expressa stipulatione delegare posse; et per delegationem etiam creditorem vice creditoris, ut debitorem vice debitoris, ex natura correlativorum constitui posse"; though, as he pointed out, ibid §§ 9 and 10, a liability cannot be transferred without the creditor's consent, a right can be transferred without the debtor's consent, "cum ejus non intersit cui solvat"; cf. ibid § 17, "Nos autem de delegatione per assignationem, transportationem, vel inductionem, ut mercatores loquuntur, facta; quo in passu delegans seu transcribens cambium delegato acceptanti, ulla retractatione mandati aut alio quovis modo præjudicare non potest"; cf. Pardessus, op. cit. iv 421, as to the obvious necessity of adding to the provisions of the civil and canon law.

2 Thus Straccha, op. cit. 47-56, cites the opinions of Baldus and other jurists as to the various questions which arise as to property in merchants' marks, and the iability which arises if one merchant fraudulently uses another's marks.

3 Morel, op. cit. 58 seqq.; Mitchell, op. cit. 12-16 and references there cited; Goldschmidt, op. cit. 174 n. 106.

VOL. V.-6

of procedure rigid enough to be workable.1 Clement V. in 1306 attempted to solve the problem by the Decretal Saepe contingit.2 It frequently happens, runs the Decretal, that we direct cases to be heard "simpliciter et de plano ac sine strepitu ac figura judicii." The meaning to be attached to these expressions is much controverted; and so, to remove doubts, we decree that a judge, directed to hear a case in this way, shall not exact a libellus, shall not demand a litis contestatio, shall be able to sit on holidays, shall remove all occasions for delays, and shall cut - short litigation as much as he can, by refusing dilatory and vain defences and appeals, and by repressing both the disputes of advocates and procurators, and the needless number of witnesses. He must not, however, abridge the suit to such an extent that it cannot be fairly stated and defended. There must be a proper citation, and oaths that the proceedings are in good faith and that the truth will be spoken must be taken. Positiones 3 can be used unless the parties agree to exclude them; and the judge may question the parties whether requested by them or not, when it appears to him to be equitable. Parties must be cited to hear a definitive judgment, and it must be in writing. But the other formalities used in giving judgment may be omitted.

The words of this Decretal were elaborately and sympathetically expounded by the jurists of the succeeding centuries. They interpreted them as authorizing, not only such modifications in

1 Vol. ii 251.

2 Clem. v, xi 2, "Sæpe contingit, quod causas committimus, et in earum aliquibus simpliciter et de plano, ac sine strepitu et figura judicii procedi mandamus ; de quorum significatione verborum a multis contenditur, et qualiter procedi debeat dubitatur. Nos autem, dubitationem hujus modi (quantum nobis est possible) decidere cupientes, hac in perpetuum valitura constitutione sancimus, ut judex, cui taliter causam committimus, necessario libellum non exigat, litis contestationem non postulet, tempore etiam feriarum, ob necessitates hominum indultarum a jure, procedere valeat, amputet dilationem materiam, litem, quantum poterit, faciat breviorem, exceptiones, appellationes dilatorias frustratorias repellendo, partium advocatorum et procuratorum contentiones et jurgia, testiumque superfluam multitudinem refrenando. Non sic tamen judex litem abreviet quin probationes necessariæ et defensiones legitimæ admittantur. Citationem vero ac præstationem juramenti de calumnia vel malitia, sive de veritate dicenda, ne veritas occultetur, per commissionem hujus modi intelligimus non excludi." They were statements drawn up by both parties to be used as a basis for the examination of opponents by the judge; for a clear account of them see Langdell, Equity Pleading, Essays, A.A.L. H. ii 761, 762.

Marquardus, op. cit. Bk. iii c. vii §§ 9 and 10, discusses elaborately what steps in the procedure are "Naturalia" and unable to be dispensed with, and what are "Civilia❞ and able to be dispensed with "Naturalia sunt (1) Citatio, (2) Brevis narratio sive expositio causæ, (3) Petitio, (4) Probationes semiplenæ, (5) Cognitio causæ saltem aliqua et levis, (6) Denique sententia sine conclusione. E contrario civilia sunt hæc :-(1) Libelli oblatio, (2) Articulorum compositio, (3) Litis Contestatio, (4) Feriæ in honorem hominum indictæ, (5) Dilationes et termini, (6) Publicatio attestationum, (7) Jusjurandum calumniæ .. (8) Conclusio in causa, (9) Denique recitatio sententiæ ex scripto a judice sedente facta. Hæc inquam mere sunt Civilia, sive juris positivi: ideoque in judiciis summariis secundum Doctores omitti possunt; cf. Straccha, op. cit. 269b, 270b, 276, 276b.

the law of procedure as would make for the speedy hearing of commercial cases, but also such modifications in the law as were necessary to enable substantial justice to be done without regard to any merely technical difficulties. No doubt the details of rules of procedure varied much from place to place the rules as to the competence of different courts to deal with certain classes of cases according to the amount at stake, rules as to appeals, rules as to the course to be followed when the judges differed, rules as to process against an absent or a contumacious defendant, were very various. But running through all the mass of particular rules there are the two guiding principles that the procedure must be simple and speedy, and the law must be equitable. Straccha cites Clement's Decretal, and says in effect that all formalities may be dispensed with, the omission of which is consistent with an orderly hearing of the case. At the same time he lays it down that the law must be above all equitable and free from the "apices juris." This principle he says, our modern lawyers have laid down in six hundred different places. Straccha's words are cited and amplified by all his successors. 5

It was this purging of the law of barren technicalities which enabled the merchants to take a position of importance, equal if not superior to that of the lawyers, in the mercantile tribunals, and so to modify the law to suit the exigencies of trade. The merchants, who were thus set to decide mercantile cases simply and summarily, thought with reason that they could decide the general run of mercantile cases without the intervention of the lawyers. Thus, many of the city statutes prohibit the employment of lawyers except in certain cases. If both parties desired to employ them, if the court found that the case depended upon a question of law which it could not solve, or if the court differed in opinion-then the lawyers might be called in. The

1Straccha, op. cit. 246, citing Bartolus on this point, says, "Apices juris esse putat, quæ subtilitatem quandam respiciunt magis quam facti veritatem, verbi gratia, si esset instituta directa actio cum utilis competit, vel non esset lis contestata et similia."

2 Morel, op. cit. 58-74, gives a good account of some of these varying rules in different towns.

Op. cit. 270b, "Sed hæc intelligenda sunt dummodo tanta non sit obscuritas et incertitudo quæ res defensionem atque facultatem deliberandi adimet; intelligi debet quid sibi actor voluerit, licet generaliter protulerit."

4 Ibid 244b, "In curia mercatorum æquitatem præcipue spectandam et ex bono et æquo causas dirimendas esse, et de apicibus juris minime congruere nemo est profecto qui nesciat. Id enim in sexcentis locis recentiores jurisconsulti tradidere."

5 See e.g. Ansaldus, op. cit. pp. 626, 627, §§ 1-3, and 7-11.

Statuti Pisani (Ed. Boniani) i pp. 230-232-the Breve Pisani Communis of 1286; Leges Genvenses, Mon. Hist. Pat. xviii col. 537-the Officium Mercanzia may take legal advice if they see fit, but generally they must proceed "sine consilio jurisperiti nisi ad utriusque partis instanciam; ibid col. 817; but ibid cols. 813, 814 a list of

lawyers it was thought should be employed to settle points of law, and not to argue matters of fact, and to put a good face on a bad case.1 The danger of such a set of rules is of course that each case will be decided on its own facts according to the individual views of the judges, and that no legal principles will be evolved. But, if we may judge from the books produced by the writers of the sixteenth aad seventeenth centuries, this danger was successfully avoided." The merchants had, it would seem, taken the advice given to them by Straccha, and had not thought themselves more equitable than the law. When, in the sixteenth century, the Italian system of commercial courts was introduced into other countries, this danger was considerably less. The practice of those courts had given rise to bodies of law which were generalized and explained by the legal writers of the sixteenth, seventeenth, and eighteenth centuries. The mercantile tribunals had therefore fixed laws to guide them; and even the lawyers admitted that they could do a more speedy and a better justice in mercantile cases than the regular tribunals.*

In these various ways therefore the Italian cities laid the foundations of our modern commercial and maritime law, and evolved the pattern of the commercial and maritime tribunals which have prevailed over the greater part of western Europe. To them we must look for the origins of the idea of a negotiable instrument and for the elaboration of many of the leading principles of our modern law on this topic. Similarly they elaborated the law as to banking and as to commercial partnerships both of the limited and unlimited variety; while the exigencies of commerce compelled them to lead the way in the development of a bankruptcy law, and in the introduction of modifications of the law prohibiting usury. In the department of maritime law they

cases is given which "spectant quam plurimum ad juristas utpote questiones de principalibus juris apicibus descendentes," and cannot therefore be sent to arbitration; presumably in these cases the assistance of the lawyers would be invoked.

"L'intervention des avocats donnait lieu devant les tribunaux civils à des discussions et à des chicanes aussi interminables que steriles, qui entrainaient naturellement des pertes de temps et d'argent. Afin d'éviter cet abus, le droit de représentation devant les tribunaux de commerce fut strictement limité," Morel, op. cit. 62.

2 We have seen, above 83 n. 6, that it was admitted at Genoa that there were certain cases which could best be decided by the lawyers; and it is clear from Straccha's book that they were frequently consulted; thus at p. 181 he mentions, "Baldus noster qui in jure nostro propter ingenii acumen et frequentes disceptationes forenses primum locum obtinet, aut certe post Bartolum;" cf. also ibid p. 233.

Op. cit. 285, "Consulant itaque mercatores in dicendis sententiis (ubi causæ expostant) jurisconsultos bonosque viros. Vetus est enim illud, ne sutor ultra crepidam, et felices essent artes si de illis soli artifices judicarent. Et se lege ipsa clementiores aut æquiores ne putent; at p. 285b he cites Baldus as saying, "Nos sequi æquitatem rationi conjunctam, non imaginariam et nostri capitis.'

4 Marquardus, op. cit. Bk. iii c. vi § 54, writing De judicibus et consulibus Mercatorum, says that they ought to be appointed in all emporia" to decide cases equitably and without legal technicalities.

made elaborate rules as to the capacity, loading, condition, and equipment of the ship; as to the legal position and legal relations of the various parties to a maritime adventure-shipowner, merchant, captain, and crew; and as to maritime partnerships. The various legal possibilities which might arise out of the contract of carriage by sea were very fully worked out; and this involved a treatment of such subjects as the results of loss from pirates, fire, or wreck-"the three normal maritime dangers"maritime loans, average, jettison, contribution, collision and salvage.1 Last but not least it was in relation to maritime law that the conception of an insurance first appeared.2

Some of these branches of commercial and maritime law were, as we shall see, introduced into England in the sixteenth and early seventeenth centuries; and in the second Part of this Book I shall sketch briefly the history of their technical development. But, in order that we may understand the way in which they were introduced into our law, and the manner in which they were subsequently developed, it is necessary first to say something of their gradual reception in the trading centres of northern Europe.

(2) The reception by the cities and states of Northern Europe of the Italian ideas.

We have seen that we must look to the franchises conceded to the merchants for the beginnings of the commercial law of the cities and states of Northern Europe. On the other hand for the beginnings of their maritime law we must look to the customs observed in the principal seaport towns.1 Both these allied branches of the Law Merchant were influenced in the sixteenth century by the rules which had been evolved in the great trading centres of southern Europe; and both therefore tended to become parts of one cosmopolitan system. But seeing that the mode of their development was somewhat different, and seeing that in some countries they continued to be administered by different tribunals, I must deal separately with the history of their growth. Commercial Law.

For the origins of the commercial law of the cities and states of Northern Europe we must look to the franchises and privileges given to those who held and to those who resorted to a market. Thence originated a market and a market law which constituted an important, perhaps the most important element, which

1 Mr. Ashburner, in his introduction to The Rhodian Sea Law pp. cxxx-ccxciii, has given an admirable account of the manner in which the Italian cities built up a maritime law to suit mediæval needs, and of the principal doctrines of that law. 2 Pt. II. c. 4 III. Above 63.

4 Vol. i 527-528; below 100,