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Source: Chapter: 9.: WILLIAM SEARLE HOLDSWORTH, THE DEVELOPMENT OF THE LAW MERCHANT AND ITS COURTS, Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1907). Vol. 1.
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THE DEVELOPMENT OF THE LAW MERCHANT AND ITS COURTS
IN this chapter we shall consider certain courts which administer a body of law outside the jurisdiction of the Courts of Common Law and the Courts of Equity. These courts fall into four groups:—(1) The Courts which administer the Law Merchant; (2) The Court of the Constable and the Marshal; (3) The Courts of the Forest; (4) The Ecclesiastical Courts. Some of these courts, and some of the bodies of law which they have created, still continue to be outside the ordinary jurisdiction of the courts of law and equity. Others have practically ceased to exist. Others have been absorbed into their system. At an early stage of their history the Council and the Chancery had an intimate relation with many of these courts. This connection with the Council has been maintained, and even strengthened. It was to the Judicial Committee of the Privy Council that appeals were, and in some cases still are brought from such of those courts of a special jurisdiction which still remain.
(1) The Courts which administer the Law Merchant.
The Law Merchant of primitive times comprised both the maritime and the commercial law of modern codes. From the earliest period in their history an intimate relationship has subsisted between them. Both applied peculiarly to the merchants, who, whether alien or subject, formed in the Middle Ages a class very distinct from the rest of the community. Both laws grew up in a similar manner from the customary observances of a distinct class. Both laws were administered in either the same or in similar courts, which were distinct from the ordinary courts. Both laws differed from the common law. Both had an international character.
(a) Maritime Law.
We find that the maritime laws of the Middle Ages were contained in certain bodies of local customs, which, like all customary law, showed a tendency to expand as they grew older. These bodies of custom took their name from some one port. They were adopted by other ports, and one or other of them ruled the coasting trade of the whole of mediæval Europe.
The body of customs adopted by England, and inserted at a later date into the Black Book of the Admiralty, were the judgments of Oleron. They originated in the laws of the commune of Oleron. They were adopted by the seaport towns of Normandy and Brittany. They were transplanted to Damme, Bruges, and to England. A copy of Edward’s II.’s reign, representing an early version, is to be found in the archives of the city of London, and in the Red Book of Bristol. Such was the repute of these laws of Oleron that mariners of other countries came there to obtain the judgment of its court.
The body of customary sea laws in force in the Mediterranean was known as the Consolato del Mare. It is probably of Catalan origin. It was probably drawn up in the 15th century for the use of the Consuls of the sea at Barcelona, from older collections of the customs of seaport towns within the kingdom of Aragon, just as the Black Book was drawn up from the laws of Oleron for the use of the court of Admiralty in England. Before they had thus been reduced to writing they had been introduced into the Mediterranean ports, as the laws of Oleron had been introduced into the ports of the Atlantic and the North Sea. “They were introduced from Barcelona first of all into Valencia, then into the island of Majorca, then into Sicily, then into Roussillon, all of which countries were under the sceptre of the kings of Aragon before any version of them was printed at Barcelona. Within half a century after they were printed in the Book of the Consulate of the Sea at Barcelona, they were translated into the languages of Castile and of Italy. They were further translated into French before the conclusion of the 16th century, into Latin some time in the 17th century, into Dutch at the beginning of the 18th century, and into German in the course of the same century.”
From the Baltic we have two codes of sea laws. One comes from Lubeck; another from Wisby. While Lubeck exercised a preponderating influence upon trade within the Baltic, Wisby exercised a similar influence upon the trade of the Baltic with foreign ports. The famous collection of the maritime laws of Wisby are compiled from three sources. The first is a Baltic source, and the earliest laws to be attributed to that source come from Lubeck. The second is a Flemish source and represents a Flemish version of the laws of Oleron. The third is a Dutch source, and represents the laws observed in the city of Amsterdam.
Other towns possessed bodies of sea laws of their own. We possess the laws of Amalphi and of Trani. It is clear from the Domesday of Ipswich that that town possessed a court in which pleas relating to maritime matters were pleaded from tide to tide. But these three codes—the laws of Oleron, the Consolato del Mare, and the maritime laws of Wisby, became the leading maritime codes of Europe. In fact these codes, “form as it were a continuous chain of maritime law, extending from the easternmost parts of the Baltic sea, through the North sea, and along the coast of the Atlantic to the Straits of Gibraltar, and thence to the furthest eastern shores of the Mediterranean.”
(b) Commercial law.
Similarly in mercantile matters we find that various towns have their codes of customs by which mercantile transactions are governed. As we might expect, the towns which possessed laws dealing with maritime matters were the towns to which some sort of mercantile laws were a necessity. Oleron, Barcelona, and Wisby all possessed such bodies of law. In England we have the White Book of London, the Red Book of Bristol, and the Domesday of Ipswich. Just as the various seaport towns imitated the customs of some one port, so the various towns modelled their charters and their laws upon certain of the more famous towns in England, such as London, Bristol, Oxford, or Winchester. In the Carta Mercatoria and the Statute of the Staple we get special codes of rules adapted to foreign merchants. The body of rules so used by the chief trading towns of Europe is known to the Middle Ages as the Law Merchant. It is, in fact, the private international law of the period.
It is clear that both the maritime and the commercial law of the Middle Ages grew up amid similar surroundings, governed the relations of persons engaged in similar pursuits, was enforced in similar tribunals. It is not therefore surprising that, from that time to this, the relations between them have always been of the closest. Even in England, where they have come to be applied in different courts, it has been impossible to ignore their close connection. Both, as we have seen, have appeared to English judges to be rather a species of jus gentium than the law of a particular state. In spite of the efforts of the Courts of Common Law, the attempt to separate them has produced much inconvenience and has only partially succeeded. “It was,” says Sir Travers Twiss, “the practice of the consuls of the sea, before pronouncing their decision to consult the Prudhomes of the sea and the Prudhomes of the merchants. . . . In the High Court of Admiralty of England it is the practice for the judge to be assisted by two of the Elder Brethren of the Trinity House of Deptford-le-Stroud, whilst the registrar of the court, at a subsequent stage of the proceedings, has the assistance of two merchants.”
Such, then, was the nature of the Law Merchant. We must now consider the history of the tribunals which administered it. Their history will fall into three periods:—(i) The period when the Law Merchant, maritime and commercial, is administered in local courts. (ii) The rise of the Court of Admiralty and its jurisdiction. (iii) The decay of the special courts administering the commercial part of the Law Merchant and its absorption into the common law system.
(i) The period when the Law Merchant, maritime and commercial, is administered in local courts.
Up to the reign of Edward III. the Law Merchant in both its branches is administered by local courts.
The courts which have jurisdiction in maritime matters are for the most part the courts of seaport towns. The admiral is not an official who holds a court with a fixed jurisdiction. He is an official who rules a fleet, having incidentally certain disciplinary powers over those under his command. These powers “probably enabled the admiral to deal with depredations committed by the ships immediately under his command; but it does not appear to have included a power to hold a court administering justice generally in maritime cases.”
In the earlier part of the Middle Ages we meet with many seaport towns which had, in the language of later law, an Admiralty jurisdiction. The Domesday of Ipswich tells us that, “the pleas yoven to the lawe maryne, that is to wite, for straunge marynerys passaunt and for hem that abydene not but her tyde, shuldene ben pleted from tyde to tyde.” Padstow and Lostwithiel possessed similar courts which sat at tide time on the seashore. Yarmouth possessed a court of like nature. The court at Newcastle dates from Henry I.’s reign. It would appear from the Red Book of Bristol that a court sitting at a seaport was one of the recognised tribunals of the Law Merchant. The Book itself contains rules upon maritime matters. When the court of Admiralty was established many towns, jealous probably of their ancient rights, got by royal charter exemption from its jurisdiction. Though their privileges were recognised by the legislature, they were jealously watched by the crown and by the court of Admiralty. In 1570 Elizabeth found it necessary to complain of the encroachments made by the mayor’s court of the city of London upon the Admiral’s jurisdiction. We find that at different periods in the 15th and 16th centuries the jurisdiction of Tynemouth, Scarborough, Chester, King’s Lynn, Harwich, Dartmouth and Chester are either called in question by, or successfully asserted against, the court of Admiralty. All these local Admiralty jurisdictions were swept away in 1835 by the Municipal Corporations Act. The only local jurisdiction left is one which is possibly older than them all, the jurisdiction of the Cinque Ports. “It presents the type and original of all our Admiralty and maritime courts.”
From the earliest times the Cinque Ports had the right to hold pleas, and the right to wreck. They were always exempt from the jurisdiction of the Admiralty. Owing probably to the antiquity of their jurisdiction, this exception is not expressly given in their Charters. When in 1856 the general civil jurisdiction of the Lord Warden of the Cinque Ports was abolished, his Admiralty jurisdiction was saved. In 1869, when Admiralty jurisdiction was given to the new county courts, it was provided that appeals in Admiralty cases from the county courts within the jurisdiction of the Lord Warden should lie to him. Their jurisdiction is not touched by the Judicature Act of 1873, and still survives.
The Admiralty jurisdiction, thus exercised by the local courts, was supervised and controlled by the crown. The crown was for many reasons specially interested in Admiralty cases. Foreign affairs were peculiarly within its province. The Courts of Common Law had no adequate machinery for supervising the actions or the transgressions of foreigners. Such matters frequently gave rise to diplomatic questions in the shape of expensive claims for compensation. In fact we shall see that it was largely owing to the necessity the crown was under of protecting itself against such claims that the creation of the court of Admiralty was due.
In this period the crown supervises the doings of the local courts in the following ways.
Writs are sometimes sent to the mayors and bailiffs of the seaport towns directing them to proceed. If they did not obey the writ they were attached for contempt. Sometimes special commissions are issued to the king’s justices or others to try cases of spoil or piracy. It was very often impossible for a foreigner, who had been spoiled of his goods, to get justice from an English jury. Such persons often petitioned the Council. The petition in such cases was often referred to the Chancellor; but it was sometimes heard by the Council, and writs were issued according to the result of the trial. In 1353 we hear of such a case being tried by the Admiral and the Council. This is, as we shall see, just before the first mention of the Admiral’s court.
The Courts of Common Law sometimes, but rarely interfered in such matters. They had in fact no jurisdiction over contracts made or torts committed abroad.
With respect to crimes committed out of the bodies of counties, the question how far the Common Law Courts had jurisdiction is perhaps more doubtful. Hale asserts that they did possess such jurisdiction before 1365. He cites eight cases of the reigns of Edward I., II., and III. These cases do not however completely prove Hale’s position, as Cockburn, C. J., points out in Reg. v. Keyn. It is not, however, improbable that, at a period when the court of Admiralty did not exist, the ordinary courts did sometimes exercise such jurisdiction. Criminal cases are still tried by a jury, and in cases of piracy the commissioners are sometimes directed to proceed “secundum legem et consuetudinem regni nostri.” Generally, however, the procedure is “secundum legem mercatoriam,” or, “maritimam.” The maritime law is clearly a law apart from the common law and practically identified with the law of the merchants.
The courts which administer the commercial law of the period necessarily present features very similar to the courts which administer the maritime law. The law merchant applied both to the domestic trader and to the foreign merchant. Both formed in a sense a separate class. But, as we might expect, the separation is far more clearly marked in the latter than in the former case.
The courts which administer this branch of the Law Merchant are chiefly the courts of fairs, the courts of the more important towns, and the courts of the Staple.
In the fairs of the Middle Ages much of the internal and foreign trade of the country was conducted. The right to hold a fair meant the right to hold a court of pie powder for the fair. A statute of 1477 recites that in this court, “it hath been all times accustomed, that every person coming to the said fairs, should have lawful remedy of all manner of contracts, trespasses, covenants, debts, and other deeds made or done within any of the same fairs, during the time of the said fair, and within the jurisdiction of the same, and to be tried by the merchants being of the same fair.” Later cases confined the jurisdiction of the fair strictly within these bounds. Sometimes these courts were held by the mayor of a corporate town. Sometimes they belonged to a lord. Of the latter class was the fair of St. Ives. We can see that merchants from all parts of England, and even from abroad, attended this fair. In the pleadings of the court of this fair we have mention of the communitates of Stamford, Nottingham, Leicester, Huntingdon, Godmanchester, Bury St. Edmunds, Wiggenhall, and Ypres. These fairs were not peculiar to England. “By means of them almost all foreign trade was for centuries conducted. In the fairs of Champagne . . . Besançon and Lyons in France . . . Antwerp in the Low Countries, and not least in the fairs of Winchester and Stourbridge in England, goods were bought and sold; orders were given and taken; outstanding payments were made there; and there obligations to be discharged at future fairs were contracted. To these gatherings, which lasted for several days, flocked merchants from all parts of Europe. The dealings of the merchants necessitated the use of simple rules; no technical jurisprudence peculiar to any country would have been satisfactory to traders coming from many different countries.” The customs of different places may have slightly varied; but the law, in its broad lines, as laid down by the merchants in these courts, was necessarily of the international character which has always been its chief characteristic.
The towns had in many cases the right, either by charter or by prescription, to hold various courts, of pie powder and otherwise, in which the Law Merchant was administered, in addition to many other kinds of jurisdiction, civil and criminal. The Domesday of Ipswich distinguishes many different kinds of pleas. Those which concern the Law Merchant are clearly distinct from the others. The Red Book of Bristol describes the differences existing between the Law Merchant and the common law, and treats generally of the law and procedure of merchant courts. Similarly the White Book of London describes the special usages which prevail where the merchants are concerned. Many other towns also, as we can see from the reports, had the right to hold courts for the merchants. Some of these courts still exist. The Lord Mayor’s court in London, the Tolzey court, and a branch of it sitting in time of fair as a Pie Powder Court, at Bristol, the Liverpool court of passage, are examples of survivals from a time when the Law Merchant was generally administered in local courts.
The merchants not only had special courts and a special law, they were also differentiated from the rest of the community by a special organization. In the charters of the towns there is frequent mention of the Guild Merchant. This was an association of traders within the town, and, in some cases, of traders living outside its precincts, for the better management of trade. It sometimes arbitrated upon mercantile disputes. But as a rule it did not exercise a regular jurisdiction. Its chief function was that of a trades union of a rigidly protective character. It was only those who belonged to the Guild Merchant who could trade freely within the town. Its conduct was sometimes so oppressive that trade was driven from the town. In fact all the various privileges, jurisdictional and administrative, which the towns possessed could be, and often were used in a manner adverse to the commercial interests of the country. The foreign merchant was hampered at every turn by the privileges of the chartered towns. They were averse to allowing him any privileges except those which they had specially bargained to give to him. “The Great Charter provides that merchants may freely enter and dwell in and leave the realm; but the same Great Charter confirms all the ancient liberties and customs of London and the other boroughs, and thus takes away with one hand what it gives with the other. The burghers have a very strong opinion that their liberties and customs are infringed if a foreign merchant dwells within their walls for more than forty days, if he hires a house, if he fails to take up his abode with some responsible burgher, if he sells in secret, if he sells to foreigners, if he sells in detail.”
The crown, on the other hand, was for many reasons interested in supporting the foreign merchant. The crown was able to take a broader view of the commercial interests of the country than any set of burghers. Its intelligence was also quickened by the fact that it was easier to negotiate a supply from the alien merchant in return for protection, than to deal with a Parliament. For these reasons the needs of the crown gave to the alien merchant a defined position—in some respects superior to that of the native merchant—and the protection of a separate set of courts.
In 1303 the Carta Mercatoria gave to certain foreign merchants, in return for certain customs duties, exemption from certain municipal dues, freedom to deal wholesale in all cities and towns, power to export their merchandize, and liberty to dwell where they pleased. They were promised speedy justice “secundum legem mercatoriam” from the officials “feriarum, civitatum, burgorum, et villarum mercatoriariarum;” and any misdoings of these officials were to be punished. If the mayor and sheriffs of London did not hold their court from day to day another judge was to be substituted for them. In all pleas, except those of a capital nature, half the jury was to consist of foreign merchants. No future grant of liberties to any town was to derogate from the rights conferred upon the foreign merchants.
The growth of the powers of Parliament in Edward III.’s reign gradually prevented the crown from obtaining supplies by separate negotiations with the alien merchants. But in his reign (1353) similar privileges and a larger measure of protection was secured to them by the Statute of the Staple.
With a view to the better organization of foreign trade and the more convenient collection of the customs, certain towns, known as the Staple Towns, were set apart. It was only in those towns that dealings could take place in the more important articles of commerce, such as wool, woolfells, leather, lead, and tin. Eleven such towns were named for England, one for Wales, and four for Ireland. In each of these towns special courts were provided for the merchants who resorted thither. A mayor and two constables were to be chosen annually to hold the court of the Staple; and the authorities of the town in which the Staple was held were ordered to be attendant upon them. They were to apply the Law Merchant, and not the common law. All manner of pleas concerning debt, covenant, and trespass fell within their jurisdiction. The jurisdiction of the king’s courts was excluded except in cases touching freehold or felony. The mayor and constables had the assistance of two alien merchants, one of whom was chosen from the merchants who came from the north, the other from the merchants who came from the south. Provision was made for the trial of cases in which aliens were concerned by a mixed jury, and for an appeal in cases of difficulty to the Chancellor and the Council. A speedy means was provided for the recovery of goods of which merchants had been robbed at sea, or which had been cast away and thrown up on the shore. Merchants going and returning to the Staple towns were protected against purveyance. They were promised lodgings in the towns at a reasonable rent. They were taken into the king’s special protection. These privileges are specially stated to be granted notwithstanding any privilege, franchise, or exemption granted to any towns or individuals.
All these courts administered, and, by administering, helped to create, the Law Merchant. With the merchant, his courts, and his law the common law had little concern. He is protected by his special courts and can, in the last resort, appeal to the Chancellor and the Council. The law is a customary law known to the merchants who can, if need be, inform the king’s courts of its contents. Fleta notices that it is a peculiar law. A statute was needed to abrogate the rule of this law that one townsman is liable, as a kind of surety, for the debt of his fellow townsman. The rule that if a debtor could pay, money in the hands of his debtor could be attached, was common to many towns. The statute merchant and the statute staple gave to English and foreign merchants a right of recourse against their debtor’s land. The common law as yet knows but little of these rules. A writing obligatory payable to bearer is known among the merchants as early as the 13th century. The first English case upon a bill of exchange in the Common Law Courts is of the year 1603.
In this period, as we have said, the merchant courts and the merchant law are so closely connected with the maritime courts and maritime law that we may regard them as branches of the same Law Merchant. In the middle of the 14th century the rise of the court of Admiralty causes a cleavage between these two branches of the Law Merchant. The cleavage is widened by the action of the Common Law Courts. Their jealousy confines the court of Admiralty rigidly to maritime causes, and leads them to appropriate to themselves jurisdiction over commercial causes. In the end they assimilate what they have appropriated, and construct our system of mercantile law.
(ii) The rise of the Court of Admiralty and its Jurisdiction.
(a) The rise of the Court of Admiralty.
The earliest mention of the term Admiral is in a Gascon Roll of 1295, in which Berardo de Sestars is appointed Admiral of the Baion fleet. There are similar mentions of Admirals in these Rolls in 1296 and 1297. In 1300 Gervase Alard is appointed Admiral of the Cinque Ports; and this appears to be the earliest use of the title in England. “It would appear that the title of Admiral, originating probably in the East, and afterwards adopted by the Genoese and other navies of the Mediterranean, came by way of Gascony to England, and was there adopted about the beginning of the 14th century.”
We have seen that in the earlier part of the 14th century the Admiral did not possess any jurisdiction except a disciplinary jurisdiction over the fleet under his command. He does get such jurisdiction about the middle of the 14th century, owing to the diplomatic difficulties in which the king found himself involved, from the want of some efficient authority to coerce the marauding and piratical propensities of his subjects.
It appears from the documents contained in the record known as the “Fasciculus de Superioritate Maris” that the kings of England had been constantly negotiating with foreign countries—more especially with France and Flanders—as to claims in respect of piracies committed by English subjects. From 1293 to 1337 attempts had been made at arbitration. In 1337 Edward had made payments out of his own pocket to the Flemings, the Genoese, and the Venetians. The claims of the French were put an end to by war. In 1339 a commission was sitting to consider the piracy claims made by Flanders. It may be that the resolution to erect a court of Admiralty was the result of recommendations made by that commission. At any rate the battle of Sluys (1340) gave to England that command of the sea, which had been already claimed in the 13th century, and so rendered the erection of such a court the more possible. “It is not unreasonable to suppose that after the battle of Sluys Edward III., acting upon the advice of the commissioners of 1339, extended the jurisdiction of the Admiral, which had up to that date been mainly disciplinary and administrative, so as to enable him to hold an independent court and administer complete justice in piracy and other maritime cases.” We have seen that the older methods of administering justice in such cases had been found to be very unsatisfactory. In 1353 a case was heard before the Admiral and the Council. In 1357 there is the earliest distinct reference to a court of Admiralty. In 1360 John Pavely is appointed “capitaneus et ductor” of the fleet, with powers, not only disciplinary, but also judicial. In 1361 the commission to Sir Robert Herle confers upon him similar powers, and gives him power to exercise them by a deputy. This power was probably inserted in order to provide a judge for the new court. There were at first several Admirals and several courts. From the early 15th century there is one Lord High Admiral, and one court of Admiralty. In 1482 we have an actual patent of the judge of the court.
The earliest parts of the Black Books of the Admiralty, which refer to the office and the court of the Admiral, probably date from the period between 1332 and 1357. It is clear that the jurisdiction of the court is as yet new. There is an article expressly directed against the withdrawal of cases from the court. In 1361 a commission of oyer and terminer was recalled on the ground that the matter fell within the jurisdiction of the Admiral’s court. In 1364 a writ of supersedeas issued to the judges on the ground that the Admiral had already tried the case. In 1375 the inquisition of Queenborough was held in order to ascertain certain points of maritime law. We shall see that the new court aroused the suspicions of Parliament and that its jurisdiction was limited by statute. But the part of the Black Book dealing with the procedure and practice of the court (which dates from the 15th century) shows us that its jurisdiction is becoming settled.
Under Henry VIII. the court of Admiralty considerably extended and settled its jurisdiction. In that reign much attention was paid to naval matters. Trinity House was incorporated in 1516. Deptford dockyard was constructed at about the same period. The records of the court began in 1524. It was settled in 1585 that the judge of the court of Admiralty, though a deputy of the Admiral, did not cease to be judge during a vacancy of the office of Admiral. The criminal jurisdiction of the court was extended; and just as the crown had asserted its jurisdiction in ecclesiastical matters, so it asserted an increased jurisdiction, through the court of Admiralty and the Council, in maritime and commercial causes. The Council records show how close was the connexion between the Council and the Admiralty.
During the Tudor period the court sat at Orton Key near London Bridge. Later it sat, like the Ecclesiastical Courts, at Doctors’ Commons. We shall see that the determined attack of the Common Law Courts in the 17th century left the court with but a small part of the jurisdiction which it had asserted under the Tudors, and denied it the status, which it had formerly possessed, of a court of record.
Statutes of this century restored to the court of Admiralty some parts of the jurisdiction of which the Common Law Courts had deprived it. They restored also its status of a court of record, and gave to the judge of the Admiralty many of the powers possessed by the judges of the superior Courts of Common Law.
Appeals from the court of Admiralty lay originally to the king in Chancery. This is clear from a statute of 1533. The king on each occasion appointed judices delegati to hear the appeal. In the Tudor period these Delegates were civilians. In later times a judge of one of the Common Law Courts was associated with them. In 1563 it was enacted that their decision should be final. We get the records of the Court of Delegates from the beginning of the 17th century. We have seen that in 1832 the jurisdiction of the Delegates was transferred to the Council, and that in 1833 the Judicial Committee of the Council was formed to hear such appeals.
(b) The jurisdiction of the Court of Admiralty.
In the 14th and 15th centuries the jurisdiction of the Admiralty is somewhat wide and vague. It comprises the ordinary criminal and civil jurisdiction of later days, the Prize jurisdiction, and the jurisdiction over wreck, and the other droits of the crown or the Admiral. The procedure of the court was becoming fixed upon the models rather of the civil than of the common law. Its jurisdiction was beginning to encroach upon the rights of those seaport towns which possessed Admiralty jurisdiction. For these reasons the court aroused a Parliamentary opposition similar in kind to that aroused by the jurisdiction of the Council. The result of this opposition was seen in two statutes of Richard II.’s reign which defined the jurisdiction of the Admiralty. 13 Richard II. St. 1 c. 5 recites that “a great and common clamour and complaint hath been often times made before this time, and yet is, for that the admirals and their deputies hold their sessions within divers places of this realm, as well within franchise as without, accroaching to them greater authority than belongeth to their office.” It enacts that, “the admirals and their deputies shall not meddle from henceforth with the sea, as it hath been used in the time of King Edward, grandfather of our Lord the King that now is.” 15 Richard II. c. 3 enacts more specifically, “that of all manner of contracts, pleas, and quarrels, and all other things rising within the bodies of the counties as well by land as by water, and also of wreck of the sea, the Admiral’s court shall have no manner of cognizance, power, nor jurisdiction.” But, “nevertheless, of the death of a man, and of a mayhem done in great ships, being and hovering in the main stream of great rivers, only beneath the bridges of the same rivers nigh to the sea, and in none other places of the same rivers, the Admiral shall have cognisance.” In view of further petitions as to the encroachments of the Admiral’s court, it was enacted in 1400 that those sued wrongfully in that court should have a right of action for double damages. Petitions were still directed against the court and its procedure. But these statutes effected some settlement of the court’s jurisdiction; and the Courts of Common Law maintained their observance by the issue of writs of supersedeas, certiorari or prohibition.
We have seen that the reign of Henry VIII. witnessed a revival of interest in the navy and an increased activity in the court of Admiralty. A statute of 1540 gave to the Admiral a jurisdiction in matters of freight and damage to cargo. The patents of Henry VIII.’s admirals not only omit the proviso to be found in earlier patents, confining their jurisdiction within the limits marked out by the statutes of Richard II.’s reign, they also insert a non obstante clause dispensing with those statutes. We begin to be able to classify the jurisdiction of the court under the following heads:—
(1) Ordinary or “Instance” Jurisdiction. This comprises—
(a) Criminal Jurisdiction.
(b) Civil Jurisdiction.
(c) Admiralty Droits.
(2) Prize Jurisdiction.
(1) Ordinary or Instance Jurisdiction.
(a) Criminal Jurisdiction.
We have seen that after 1363 the Admiral’s criminal jurisdiction was recognised as exclusive on the high sea. This exclusive jurisdiction could be exercised over British subjects, over the crew of a British ship whether subjects or not, over any one in cases of piracy at common law. It could be exercised over no other persons. The act of Richard II. recognised also a jurisdiction in cases of homicide and mayhem committed in ships below the bridges. This jurisdiction was, up to low water mark, concurrent with that possessed by the Courts of Common Law.
We have seen that the procedure in the Admiral’s court had come to be modelled on the procedure of the civil law. The early precedents for trial by jury were not followed. Trial by witnesses took its place. In 1536 dissatisfaction with this method of trial produced a statute, the ultimate effect of which was to transfer to the Courts of Common Law the criminal jurisdiction of the Admiralty.
The statute recites that those who have committed crimes upon the sea, “many times escaped unpunished because the trial of their offences hath heretofore been ordered . . . before the Admiral . . . after the course of the civil laws; the nature whereof is, that before any judgment of death can be given against the offenders, either they must plainly confess their offences (which they will never do without torture or pains) or else their offences be so plainly and directly proved by witness indifferent, such as saw their offences committed, which cannot be gotten but by chance at few times, because such offenders commit their offences upon the sea, and at many times murder and kill such persons being in the ship or boat where they commit their offences, which should witness against them in that behalf; and also such as should bear witness be commonly mariners and ship men, which, because of their often voyages and passages in the seas, depart without long tarrying.” It provides that treasons, felonies, robberies, murders and confederacies, committed in any place where the Admiral has jurisdiction, shall be enquired into and tried by commissioners appointed by the crown as if the offences had been committed on land. The commissions can be issued to the Admiral, his deputy, or three or four other substantial persons to be appointed by the Lord Chancellor. In 1799 this Act was extended to the trial of all offences committed on the high seas.
The three or four substantial persons to be appointed under the act of Henry VIII. came to be invariably the judges of the Common Law Courts. The indirect result of the act was, therefore, to transfer the criminal jurisdiction of the Admiralty to the Courts of Common Law.
Special commissions under this act have been rendered obsolete by later legislation. In 1834 the Central Criminal Court Act gave to that court the jurisdiction of these special commissioners. In 1844 a similar jurisdiction was given to the ordinary justices of oyer and terminer and gaol delivery. Provisions to the same effect are contained in the Criminal Law Consolidation Acts and the Merchant Shipping Acts.
The criminal jurisdiction of the Admiralty has thus for three centuries been exercised by the Courts of Common Law. It has, for this reason, almost wholly lost the international character which marked all branches of the maritime law in the Middle Ages. Piracy “at common law” is perhaps the only crime, which still retains some trace of an international character, in the rule, that it can be tried by the court of any country wherever and by whomsoever committed. The criminal jurisdiction of the Admiralty, having been administered by the ordinary courts, has become part and parcel of the common law, to be spelt out of English statutes, to be changed only as that law is changed. This fact was strikingly illustrated by Reg. v. Keyn. No consensus of international jurists was held sufficient to give to the English courts a criminal jurisdiction over foreigners not recognised by English law. Cockburn, C. J., denied that a consensus of jurists could effect, in maritime law, what, in another branch of the old law merchant, he allowed might be effected by a consensus of merchants. The case was decided by a bare majority. We may, perhaps, conjecture that it would have been decided the other way, if the criminal jurisdiction of the Admiralty had been freely developed in the court of Admiralty, and not in the Courts of Common Law.
(b) Civil Jurisdiction.
We have seen that under the Tudors the court of Admiralty claimed a wide jurisdiction. It seemed inclined to disregard altogether the limitations which statutes had imposed upon it. The extent of the jurisdiction which it claimed will appear from a list of the cases which, during this period, were brought before the court. It practically comprised all mercantile and shipping cases. “All contracts made abroad, bills of exchange (which at this period were for the most part drawn or payable abroad), commercial agencies abroad, charter parties, insurance, average, freight, non-delivery of, or damage to, cargo, negligent navigation by masters, mariners, or pilots, breach of warranty of seaworthiness, and other provisions contained in charter parties; in short, every kind of shipping business was dealt with by the Admiralty court.” The Admiralty court was, in fact, regarded as one of the recognised tribunals of the Law Merchant. In addition, the court exercised jurisdiction over various torts committed on the sea, and in public rivers, over cases of collision, salvage, fishermen, harbours and rivers, and occasionally over matters transacted abroad, but otherwise outside the scope of Admiralty jurisdiction.
We have seen that during Elizabeth’s reign the Common Law Courts began their attack upon the Chancery and the Council. It was not to be expected that they would tamely acquiesce in the encroachments of the Admiralty. Moreover, as we have seen, they were able to base their attack upon a statutory basis.
The Common Law Courts had issued writs of prohibition, based upon these statutes, from an early period. It is probable, however, that during the earlier part of the Tudor period the statutes had been largely disregarded; and, as we have seen, the aid of the legislature had even been invoked on behalf of the Admiralty. The Admiralty, also, had sometimes assumed the offensive, by means of a process of contempt, taken against those who brought proceedings upon maritime causes in another court. It would appear that when the Common Law Courts resumed their efforts against the Admiralty, they at first had recourse to writs of supersedeas and certiorari issuing from the Chancery. But such applications to the Chancellor often left the Admiralty with the disputed jurisdiction. It was seen that writs of prohibition were the most effective instrument of attack or defence which the Common Law Courts possessed.
In 1575 a provisional agreement was arrived at. But, after 1606, when Coke was raised to the Bench, the agreement was repudiated. Coke, as Buller, J., once said, “seems to have entertained not only a jealousy of, but an enmity against, that jurisdiction.” He denied that the court was a court of record. He denied it the necessary power to take stipulations for appearance, and performance of the acts and judgments of the court. He denied that it had any jurisdiction over contracts made on land, either in this country, or abroad, whether or no they were to be performed upon the sea; and similarly he denied its jurisdiction over offences committed on land, either in this country, or abroad. In support of his position he did not hesitate to cite precedents which were far from deciding what he stated that they did decide. It is fairly certain that the earlier prohibitions were all founded upon the exercise by the Admiralty of jurisdiction within the bodies of counties. The common law had not in the past claimed jurisdiction over contracts made or offences committed abroad, and probably not over contracts made and offences committed in ports intra fluxum et refluxum maris. Such jurisdiction was now coveted. By supposing these contracts or offences to have been made or committed in England the Common Law Courts assumed jurisdiction; and thus by a “new strange poetical fiction,” and by the help of “imaginary sign-posts in Cheapside” they endeavoured to capture jurisdiction over the growing commercial business of the country. The other common law judges followed Coke’s lead. It was not of course to be expected that all the cases, decided at a time when the Common Law Courts were engaged upon a systematic series of encroachments, should be consistent. But it is clear that they were all tending in one direction, regardless of the fact that the procedure of the Common Law Courts, and the law which they applied, were far less fitted than that of the Admiralty, to deal with the cases over which they claimed jurisdiction.
The merchants keenly felt the ill effects of these attacks made by the Common Law Courts. A conflict of jurisdiction must always give advantages to the unscrupulous litigant. It was clear that the Admiralty process was more speedy, and therefore more fit to deal with the cases of merchants and mariners. “Not one cause in ten comes before that court but some of the parties or witnesses in it are pressing to go to sea with the next tide.” The Admiralty could issue commissions to examine witnesses abroad, and it could examine the parties themselves. “The merchant if he can avoid the Admiralty, where he must answer upon oath, and proof may be made by commission, thinks himself secure from any danger at the common law.” The Admiralty could arrest the ship, and thus give far more effective security to those who had been employed upon it. The Admiralty could allow all the mariners to sue together for their wages, whereas the Common Law Courts insisted upon separate actions. The judges of the court of Admiralty, being civilians, were far more likely to be able to understand contracts made abroad with reference to the civil law. Two cases, put by Sir Leoline Jenkins in his argument before the House of Lords in 1660, illustrate the incompetence of the Common Law Courts to deal with the jurisdiction which they claimed. In the first case put, a Spanish merchant resident in Spain owes money to A. The Spanish merchant has a ship in an English port, which the Admiralty process alone can reach. An action is brought by A in the court of Admiralty. The ship is arrested; but in consequence of a prohibition it is released. What is the use of suing a debtor in Spain with no available property in this country? In the second case A owes money to a Spanish merchant. The Spaniard sues in the Admiralty, and is prohibited. He then sues at common law, and, to prove his case, produces a copy of his contract. A pleads “non est factum.” The original is in Spain deposited with a notary who will not part with it. The Spaniard loses his case for want of evidence.
Another compromise was attempted in 1632. Charles I. issued a commission to the Privy Council, empowering it to reconcile the differences between the Common Law Courts and the Admiralty. Sir Leoline Jenkins said that the agreement arrived at was “the result of many solemn debates, and not of artifice or surprise.” We can well believe this, if we consider the ill results which followed from the assumption of jurisdiction by the Courts of Common Law. The agreement conceded to the Admiralty a jurisdiction in the following cases:—
(1) In the case of contracts made, or wrongs committed, beyond the sea, or upon the sea.
(2) In suits for freight or mariners’ wages, or for the breach of charter parties for voyages to be made beyond the sea, though the charter parties are made within the realm, and the money is payable within the realm. But if the proceeding is for a penalty, or the question is whether the charter party was made or not, or, if made, has been released, the Common Law Courts have jurisdiction.
(3) In suits for building, amending, saving or necessary victualling of a ship, brought against the ship itself, though the cause of action arose within the realm.
(4) The court is allowed a jurisdiction to enquire of, and to redress, all annoyances and obstructions in all navigable rivers beneath the first bridges, and also to try personal contracts and injuries done there which concern navigation upon the sea.
(5) It is provided that if any be imprisoned, and, upon a writ of Habeas Corpus being obtained, the exercise of jurisdiction by the Admiralty in any of these points be certified as the cause of the imprisonment, the parties shall be remanded.
It is probable that this agreement was acted upon for a few years. Prynne cites a case in which the House of Lords upheld the jurisdiction of the Admiralty in 1645; and an ordinance passed in the time of the Commonwealth conceded to the court a jurisdiction similar to that which was conceded to it by the agreement of 1632.
But, as we have seen, the Great Rebellion ensured the victory of the common law over jurisdictions which threatened to be its rivals. Although the merchants of London petitioned Parliament to give to the court of Admiralty a jurisdiction similar to that which had been given to it in the time of the Commonwealth, they petitioned in vain. The civil jurisdiction of the Court was reduced to a very low ebb. Torts committed on the high seas; contracts made on the high seas to be there executed; proceedings in rem on bottomry bonds executed in foreign parts; the enforcement of the judgments of foreign Admiralty courts; suits for the wages of mariners, were almost the only pieces of jurisdiction which it was allowed to exercise. Pepys tells us that he went to St. Margaret’s Hill in Southwark, “where the judges of the Admiralty come, and the rest of the Doctors of Civill law.” He remarks, “I perceive that this court is yet but in its infancy (as to its rising again): and their design and consultation was, I could overhear them, how to proceed with the most solemnity, and spend time, there being only two businesses to do, which of themselves could not spend much time.”
It is quite clear that the court of Admiralty had on its side not only historical truth, but also substantial convenience. Prynne, Zouch, and Jenkins prove clearly both these facts. It is clear that the opposition of Coke and the common lawyers was unscrupulous. But it is clear that the common law had, after the Great Rebellion, gained the upper hand. And, from the point of view of the common law, the attack had been skilfully directed upon a position which it was worth much to secure; for the prize was nothing less than jurisdiction in all the commercial causes of a country the commerce of which was then rapidly expanding. Its commerce was in the future destined to expand beyond the most sanguine dreams of the 17th century. Coke could not foresee this. But he worshipped the common law; and he rendered it by no means the least of his many valuable services when he directed, and perhaps even misdirected, his stores of technical learning to secure for it this new field. To the litigant his action meant much inconvenience. To the commercial law of this country it meant a slower development. But to the common law it meant a capacity for expansion, and a continued supremacy over the law of the future, which consolidated the victories won in the political contests of the 17th century. If Lord Mansfield is to be credited with the honourable title of the founder of the commercial law of this country, it must be allowed that Coke gave to the founder of that law his opportunity.
Modern legislation has restored to the court of Admiralty many of the powers, and much of the jurisdiction of which it had been deprived in the 17th century. It has been restored, as we have seen, to its ancient position of a court of record; and its judge has been given the powers possessed by the judges of the superior Courts of Common Law. It has been given jurisdiction in cases of salvage, bottomry, damage, towage, goods supplied to foreign ships, building, equipping, and repairing ships, disputes between co-owners. In addition, it has been given a new jurisdiction in the case of booty of war, if the crown sees fit to refer any such question to it, and a new jurisdiction under the Foreign Enlistment Act. But the contests of the 17th century have left their mark upon the law administered by the court. The Common Law Courts often came to decisions, similar to those which the Admiralty had already given, upon the principles of the civil law. But the decisions, though the same in substance, were the decisions of English courts and enunciated rules of English law. The law administered by the court of Admiralty possesses, it is true, affinities with the maritime law of foreign countries. The law of Oleron, and other maritime codes, may still be usefully cited in English courts. But Admiralty law has lost the international character which it once possessed. It is essentially English law. “The law which is administered in the Admiralty Court of England is the English maritime law. It is not the ordinary municipal law of the country, but it is the law which the English Court of Admiralty, either by Act of Parliament or by reiterated decisions and traditions and principles, has adopted as the English maritime law.” “Neither the laws of the Rhodians, nor of Oleron, nor of Wisby, nor of the Hanse Towns, are of themselves any part of the Admiralty law of England. . . . But they contain many principles and statements of marine practice, which, together with principles found in the Digest, and in the French, and other ordinances, were used by the judges of the English Court of Admiralty, when they were moulding and reducing to form the principles and practice of their Court.” These statements would not have been made by the judges of the Court in the 16th, or even in the 17th centuries. The contact with, and the control exercised by the Courts of Common Law, have effected in a similar way both the civil and the criminal jurisdiction of the court.
(c) Admiralty Droits.
The crown had originally certain rights to property found upon the sea, or stranded upon the shore. The chief kinds of property to which the crown was thus entitled were, great fish (such as whales or porpoises), deodands, wreck of the sea, flotsam, jetsam, and lagon, ships or goods of the enemy found in English ports, or captured by uncommissioned vessels, and goods taken or retaken from pirates.
In early days, before the rise of the court of Admiralty, many of these droits were granted to the lords of manors, or to the towns which possessed Admiralty jurisdiction. Yarmouth had such rights. In 1829 Dunwich and Southwold spent £1000 to determine the question whether a puncheon of whiskey, taken up in the sea, was within the jurisdiction of one town or the other. The Lord Warden of the Cinque Ports and the Ports themselves shared these droits between them. In 1836 there was litigation between the crown, and the owner of the manor and castle of Corfe and the Isle of Purbeck, as to the right to 49 casks of brandy. If not so granted out, they were dealt with by the Common Law Courts or by special commissioners.
After the rise of the court of Admiralty the Lord High Admiral becomes entitled to these droits by royal grant. At the end of the 14th and the beginning of the 15th century it would appear that he shared them with the crown. From the reign of Henry VI. it would appear that they were generally granted to him. “The Admiral’s Patents of the sixteenth and following centuries contain express grants of royal fish, wrecks, waifs, flotsam, jetsam, and lagon, as well as many other perquisites connected with the sea and the sea-shore.” In Anne’s reign, George Duke of Denmark, the Lord High Admiral, surrendered his droits during the war for a fixed annual sum. The office was in commission after his death, except for a short time, when it was held by George Duke of Clarence, afterwards William IV. The droits during this period were always reserved to the crown, but in terms which showed that they had been previously annexed to the office of Admiral.
The right to droits carried with it a certain jurisdiction. Inquisitions were held into these droits at the ports, or the Vice-Admirals or droit gatherers reported them to the Admiral. The large terms of the Admiral’s Patents incited them, or their grantees, to frequent litigation with private persons or other grantees of the crown. If the property was unclaimed, it belonged to the Admiral or other person entitled, who might or might not reward the finder. If a claimant appeared, he was entitled to restoration on proof of his claim, and the payment of a reasonable salvage. Such salvage was often allowed to the Vice-Admirals of the coast as a reward for taking possession of, and looking after, the property.
The Admiralty droits, where the right has not been granted to other persons, are now transferred to the consolidated fund. But it is provided that the crown may reward the finder. In 1854 they were put under the control of the Board of Trade. In 1894 the method of dealing with wreck, flotsam, jetsam, and lagon found within British jurisdiction, was regulated by the Merchant Shipping Act.
(2) Prize jurisdiction.
The term Prize is applied to the property of a belligerent seized at sea. Prizes can as a rule only be made by some vessel acting under the authority of the government. It is clear that many complicated questions must arise as to the ownership of the ships or goods so captured. Such questions tended to become more complicated with the growth, during the 18th century, of that part of international law which relates to the rights and duties of neutrals. Lord Stowell, by his decisions in the many cases arising out of the wars at the end of the 18th and the beginning of the 19th century, settled the principles of prize jurisdiction of the Admiralty, as he settled the principles of the instance jurisdiction of the court.
From a very early period jurisdiction over prize was vested in the Admiral or the Council. It is clear that the Admiral had such jurisdiction in 1357. Special provisions with regard to the exercise of the jurisdiction were often made by treaties with foreign sovereigns. In 1498 a treaty between Henry VII. and Louis XII. stipulates that mariners shall give notice to the Admiral of any spoil which they have taken, and that they are not to dispose of it until the Admiral has adjudged it to be lawful prize. We can see that, from the 16th century, the prize jurisdiction of the court is beginning to be regarded as distinct from the instance jurisdiction. Captors sailing under commissions granted by allies of England, as well as captors sailing under English commissions, resorted to the Admiralty court. “These cases frequently resolved themselves into suits between the respective Ambassadors of the powers to which the captor and prize belonged.” Prohibitions were not as a rule issued in prize cases. Shortly after the Restoration the court held distinct sittings for prize business, and the records of such business were kept distinct. It became the custom to issue special commissions to the Admiral at the beginning of a war, requiring the judge of his court to hear prize cases. The ordinary commission did not mention this jurisdiction. The prize court thus became a court almost entirely distinct from the instance court. Lord Mansfield could say in 1781 that, “the whole system of litigation and jurisprudence in the prize court is peculiar to itself: it is no more like the court of Admiralty than it is to any court in Westminster Hall.” The Naval Prize Act of 1864, passed to enact permanently the provisions before usually made at the beginning of a war, gives to the court of Admiralty the jurisdiction of a prize court throughout His Majesty’s dominions. This jurisdiction is now exercised by the Probate, Divorce, and Admiralty division of the High Court. The appeal from the prize court was to the Council, and, after 1833, to the Judicial Committee of the Council. We shall see that appeals from the instance court now go to the House of Lords. Appeals from the prize court still go to the Council.
It was in fact inevitable that the distinction between the prize and the instance business of the Admiralty should grow more definite with the growing definiteness of the principles of International Law on the one side, and the principles of Admiralty Law as administered in English courts on the other. The court of Admiralty administers, as we have seen, English Admiralty law. Though for historical reasons it resembles in general outline the maritime law of Europe, it is essentially English law. The two greatest judges who have sat in a prize court have laid it down that a prize court administers international law. Lord Mansfield said, “by the law of nations and treaties every nation is answerable to the others for all injuries done, by sea or land, or in fresh waters, or in port. Mutual convenience, eternal principles of justice, the wisest regulations of policy, and the consent of nations, have established a system of procedure, a code of law, and a court for the trial of prize. Every country sues in these courts of the others, which are all governed by the same law equally known to each.” Lord Stowell said in the case of the Recovery, “It is to be recollected that this is a court of the law of nations, though sitting here under the authority of the King of Great Britain. It belongs to other nations as well as to our own; and, what foreigners have a right to demand from it, is the administration of the Law of Nations simply, and exclusively of the introduction of principles borrowed from our own municipal jurisprudence.” It may be that English statutes or orders in Council will compel the judge to depart from these principles. But it is these principles which form the basis of the law administered. This is fully recognised by the statutes of this century which deal with prize jurisdiction. By reason of its international character, the prize jurisdiction of the Admiralty, resembles, more closely than the ordinary jurisdiction of the court, the maritime law of the Middle Ages.
(iii) The decay of the special courts administering the commercial part of the Law Merchant, and its absorption into the common law system.
With the increase in commerce in the 14th and 15th centuries, a division and specialization of trades and industries begins to take place. The large trader or the merchant becomes entirely distinct from the small trader or the craftsman. The old Guild Merchant, which embraced all the traders in a town, gives place to separate companies of merchants on the one side, and to separate craft guilds on the other.
The internal trade of the country continued to be largely regulated by the companies of merchants, or the craft guilds, which usually possessed large powers over trade, and sometimes a monopoly of trade in their own town. It was strongly felt that “a general liberty of trade without a regulation doth more hurt than good;” and throughout the 18th century there are cases in which the courts upheld these powers. They were finally abolished by the Municipal Corporations Act of 1835.
Though the old organization of trade lingered on till the 19th century, the internal trade of the country had in the 16th century practically ceased to be ruled by a special law and by special courts. The companies of merchants and the craft guilds possessed no jurisdiction of their own. Some few courts of fairs survived; and we have seen that the courts of some large cities still continued to exercise jurisdiction. But, except in so far as statutes drew a distinction between traders and others, the trader’s or the merchant’s dealings were not treated differently from those of any other class in the community. They were governed by the common law, and generally by the Common Law Courts. The common law had borrowed certain rules from the law merchant. The rules that there is no warranty of title in a sale of goods, and that, under some circumstances, a sale in market overt by a nonowner will pass the property, probably come from this source. The merchant’s view of the efficacy of the earnest money to bind the bargain was recognised by the Statute of Frauds. By the end of the 16th century the internal trade of the country was regulated by the common law so modified, and not by a separate Law Merchant.
The foreign trade of the country continued for a longer period to be governed by a separate Law Merchant. In France, Italy, and Germany the usages of the merchants were, in the 14th and 15th centuries, treated of by many writers. In the 17th century their works had been adapted by writers like Malynes, Marius, Molloy, and Beawes. They all considered the merchant as a class apart and subject to a separate law. “It is a customary law,” says Malynes, “approved by the authority of all kingdoms and commonwealths, and not a law established by the sovereignty of any prince;” and, “the said customary law of merchants hath a peculiar prerogative above all other customs, for that the same is observed in all places.” “That commonwealth of merchants,” says Davies, “hath always had a peculiar and proper law to rule and govern it; this law is called the Law Merchant whereof the law of all nations do take special knowledge.” Davies, however, recognised that it was only the foreign trade of the country that was now ruled by this special law. “Merchandizes that cross the seas are goods of another nature, quality, and consideration than other goods and chattels, which are possessed within the realm, and do not cross the seas.”
It is clear from these writers that specific differences between the Law Merchant and the common law could still be pointed out. There was no survivorship in the case of merchants who were joint tenants. Wager of law was unknown among them. Bills of exchange, policies of assurance, assignations of debts were all unknown to the common law.
But by the end of the 17th century this Law Merchant was being gradually absorbed into the general legal system of the country. As in the case of the internal trade, so in the case of the foreign trade, the older mercantile courts had ceased to exist. Jurisdiction was therefore assumed by the ordinary courts of law and equity.
We have seen that in the Middle Ages the courts of the Staple were the chief courts which regulated the dealings of foreign merchants. Malynes says, “our staple of wools is now out of use, and staple towns are all, as it were, incorporated into London.” It is clear from his account of the courts which administer the law merchant that there was in England, in the latter part of the 17th century, no effective court specially set apart for the merchants. In the 16th and earlier 17th centuries the Council and the court of Admiralty had supplied the place of such a court. But the jurisdiction of the Council in England had come to an end in 1640; and we have seen that the Courts of Common Law had deprived the Admiralty of the greater part of its jurisdiction over mercantile causes. In 1601 a court had been established in London consisting of the recorder, two doctors of the civil law, two common lawyers, and eight “grave and discreet” merchants, to hear insurance cases, “in a brief and summary course, as to their discretion shall seem meet, without formalities of pleadings or proceedings.” But it had been held, in 1658, that proceedings before this court were no bar to an action at law; and it was constantly hampered by prohibitions. Merchants were therefore driven, either to arbitration, or to the courts of law, or, in matters which involved the taking of accounts, to the court of Chancery. Reported cases of the 17th century illustrate the effect of this upon the Law Merchant. They show that mercantile law is ceasing to be the law of a class, and that it is becoming part of the general law of the land. The earlier cases upon Bills of Exchange treat them as ruled by special customs, applicable only to merchants, which it is necessary to prove. In 1699 Treby, C. J., said that Bills of Exchange at first extended only to merchant strangers trading with English merchants; afterwards to inland Bills between merchants trading with one another in England; and lastly to all persons whether traders or not; and that there was now no need to allege and prove the custom.
The process was assisted, after the Revolution, by the greater freedom allowed to foreign trade. In the 16th and 17th centuries foreign trade was in the hands of companies incorporated by the crown with exclusive rights to trade. The validity of such grants was upheld, in 1684, in the East India Company v. Sandys. It is clear that such an organization of trade will tend to the settlement of disputes by the arbitration of the governing body of the company. But, in 1693, trade had been to a large extent freed by a resolution of Parliament, “that it is the right of all Englishmen to trade to the East Indies, or any part of the world, unless prohibited by Act of Parliament.” It was a natural, though perhaps an indirect result, of the Great Rebellion and the Revolution that the ordinary courts should thus absorb jurisdiction over mercantile cases. The fact that the Law Merchant was not English law, but jus gentium, had been used to prove that the crown had such large powers over trade, that it could impose impositions, or create a monopoly. It was clear that the Law Merchant must be administered in the ordinary courts of law or equity if it was to be made to harmonize with the now established principles of English law.
The complete incorporation of the Law Merchant with the common law was not effected till the time of Lord Mansfield. Up to his time mercantile business had been divided between the courts of law and equity. No attempt had been made to reduce it to a system. This Lord Mansfield accomplished, and this entitles him to the fame of being “the founder of the commercial law of this country.” The Law Merchant has ceased to be a separate body of law administered by separate courts: “it is neither more nor less than the usages of merchants and traders . . . ratified by the decisions of courts of law, which upon such usages being proved before them, have adopted them as settled law.”