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And yet by piecing together fragments of evidence collected here and there, we can arrive at an opinion to the effect that there was a definite body of mercantile law, slightly affected perhaps by local variations, which was recognized in this country and in the ports of Europe, and that it was administered there and here in Courts. of similar character supported by the royal authority. It was really Law, and it was really International. The history of the law merchant in this country can shortly be stated. It was from the first administered in local and popular Courts of mercatores et marinarii, and was intimately connected with the King in Council. There is statutory recognition of this connexion in the Statute of the Stapic. The Court of Admiralty after a struggle usurped the jurisdiction, the common law Courts in turn destroyed the Admiralty jurisdiction by repeated prohibitions, while the merchants, dissatisfied with the illiberal policy of the common lawyers, might have resorted to the Courts of Chancery whose doctrines and practice were very similar to their own, had not Lord Mansfield appeared to create the mercantile law of this country.
BLACKSTONE, COMMENTARIES, I, 75 (1765).
To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants, or lex mercatoria; which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it; being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions; for it is a maxim of law, that "cuilibet in sua arte credendum est." The rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof:
As to gavelkind, and borough-English, the law takes particular notice of them, and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto. All other private customs must be particularly pleaded, and as well the existence of such customs must be shown, as that the thing in dispute is within the custom alleged. The trial in both cases (both to show the existence of the custom, as, "that in the manor of Dale, lands shall descend only to the heirs male, and never to the heirs female;" and also to show "that the lands in question are within that manor") is by a jury of twelve men, and not by the
judges; except the same particular custom has been before tried, determined, and recorded in the same court.
WOODDESSON, ELEMENTS OF JURISPRUDENCE, lxxix (1792).
But the branch of the law of nations, which there have been the most frequent occasions of regarding, especially since the great extension of commerce, and intercourse with foreign traders, is called the law of Merchants. This system of generally received law has been admitted to decide controversies touching bills of exchange, policies of insurance, and other mercantile transactions, both where the subjects of any foreign power, and (for the sake of uniformity) where natives of this realm only, have been interested in the event. Its doctrines have of late years been wonderfully elucidated, and reduced to rational and firm principles, in a series of litigations before a judge, long celebrated for his great talents, and extensive learning in general jurisprudence, and still more venerable for his animated love of justice. Under his able conduct and direction, very many of these causes have been tried by a jury of merchants of London; and such questions of this kind as have come before the Court of King's Bench in term time, are laid before the public by a copious and elaborate compiler.
The law of merchants, as far as it depends on custom, constitutes a part of the voluntary, not of the necessary, law of nations. It may, therefore, so far as it is merely positive, be altered by any municipal legislature, where its own subjects only are concerned.
WOODDESSON, LECTURES ON THE LAW OF ENGLAND, III, 53 (1792).
By the custom of merchants, he to whom a bill is payable, commonly called the holder, ought, within a reasonable time after his receipt of it, to present the bill to him, to whom it is directed, for his acceptance, and such person ought also, within a reasonable. time, to accept the bill, or refuse payment of it; and reasonable. notice ought to be given to drawers and indorsers of nonpayment or nonacceptance by those liable in the first instance.
The declarations in actions on bills of exchange, after stating the particular facts, adds, "by reason whereof, and by the custom of merchants, the defendant became liable to pay, and, being so liable, undertook and faithfully promised to pay the contents of the bill.”
On the other hand, if two persons draw a bill of exchange payable "to our order," this, indeed, was thought by the court of King's Bench to render them so far partners as to that transaction (though admitted not to be so otherwise,) that an indorsement by one of them was binding and effectual: but the cause was finally determined by a special jury in London, who were decidedly of opinion, that, by the usage of merchants and bankers, the indorsement ought to have been by both the payees.
In what cases, and how far, insurers shall be liable, is governed chiefly by the custom of merchants; and some at least of that profession are usually impanelled on the jury to try these suits.
CHRISTIAN'S NOTE TO I BL. COMM. 75 (1803).
The lex mercatoria, or the custom of merchants, like the lex et consuetudo parliamenti, describes only a great division of the law of England. The laws relating to bills of exchange, insurance, and all mercantile contracts, are as much the general law of the land as the laws relating to marriage or murder. But the expression has very unfortunately led merchants to suppose, that all their crude and new-fangled fashions and devices immediately become the law of the land; a notion which, perhaps, has been too much encouraged by our courts. Merchants ought to take their law from the courts, and not the courts from merchants; and when the law is found inconvenient for the purposes of extended commerce, application ought to be made to parliament for redress. Merchants. ought to be considered in no higher degree than their own legislators or judges upon subjects of commerce, than farmers or sportsmen in questions upon leases or the game-laws. For the position of Lord Coke ought never to be forgotten:-"That the common law has no controller in any part of it, but the high court of parliament; and if it be not abrogated or altered by parliament, it remains still, as Littleton saith." (Co. Litt. 115). This is agreeable to the opinion of Mr. Justice Foster, who maintains that "the custom of merchants is the general law of the kingdom, and therefore ought not to be left to a jury after it has been settled by judicial determinations."
LORD CAMPBELL, LIVES OF THE CHIEF JUSTICES, 3 ed., III, 274. (Life of Lord Mansfield.)
In the reign of George II., England had grown into the greatest manufacturing and commercial country in the world, while her
jurisprudence had by no means been expanded or developed in the same proportion. The legislature had literally done nothing to supply the insufficiency of feudal law to regulate the concerns of a trading population; and the Common law judges had, generally speaking, been too unenlightened and too timorous to be of much. service in improving our code by judicial decisions. Hence, when questions necessarily arose respecting the buying and selling of goods, respecting the affreightment of ships,-respecting marine insurances,—and respecting bills of exchange and promissory notes, no one knew how they were to be determined. Not a treatise had been published upon any of these subjects, and no cases respecting them were found in our books of reports,-which swarmed with decisions about lords and villeins,-about marshalling the champions upon the trial of a writ of right by battle,—and about the customs of manors, whereby an unchaste widow might save the forfeiture of her dower by riding on a black ram, and in plain language confessing her offence. Lord Hardwicke had done much to improve and systematise Equity-but proceedings were still carried on in the courts of Common Law much in the same style as in the days of Sir Robert Tresilian and Sir William Gascoigne. Mercantile questions were so ignorantly treated when they came into Westminster Hall, that they were usually settled by private arbitration among the merchants themselves. If an action turning upon a mercantile question was brought into a court of law, the judge submitted it to the jury, who determined it according to their own notions of what was fair, and no general rule was laid down which could afterwards be referred to for the purpose of settling similar disputes.
He [Lord Mansfield] saw the noble field that lay before him, and he resolved to reap the rich harvest of glory which it presented to him. Instead of proceeding by legislation, and attempting to codify as the French had done very successfully in the Coustumier de Paris, and the Ordinance de la Marine, he wisely thought it more according to the genius of our institutions to introduce his improvements gradually by way of judicial decision. As respected commerce, there were no vicious rules to be overturned,—he had only to consider what was just, expedient, and sanctioned by the experience of nations farther advanced in the science of jurisprudence. His plan seems to have been to avail himself, as often as opportu
nity admitted, of his ample stores of knowledge, acquired from his study of the Roman civil law, and of the juridical writers produced in modern times, by France, Germany, Holland, and Italy,-not only in doing justice to the parties litigating before him, but in settling with precision and upon sound principles a general rule, afterwards to be quoted and recognised as governing all similar cases. Being still in the prime of life, with a vigorous constitution, he no doubt fondly hoped that he might live to see these decisions, embracing the whole scope of commercial transactions, collected and methodised into a system which might bear his name. When he had ceased to preside in the Court of King's Bench, and had retired to enjoy the retrospect of his labours, he read the following just eulogy bestowed upon them by Mr. Justice Buller, in giving judgment in the important case of Lickbarrow v. Mason, respecting the effect of the indorsement of a bill of lading:
"Within these thirty years the commercial law of this country. has taken a very different turn from what it did before. Lord Hardwicke himself was proceeding with great caution, not establishing any general principle, but decreeing on all the circumstances put together. Before that period we find that, in courts of law, all the evidence in mercantile cases was thrown together; they were left generally to a jury; and they produced no general principle. From that time, we all know, the great study has been to find some certain general principle, which shall be known to all mankind, not only to rule the particular case then under consideration, but to serve as a guide for the future. Most of us have heard these principles stated, reasoned upon enlarged, and explained, till we have been lost in admiration at the strength and stretch of the understanding. And I should be very sorry to find myself under a necessity of differing from any case upon this subject which has been decided by Lord Mansfield, who may be truly said to be the founder of the commercial law of this country."
I naturally begin with the law of INSURANCE,-almost his own creation; and I might copy the whole of a copious treatise on the subject by Mr. Justice Park, which is composed almost entirely of his decisions and dicta.
Likewise with regard to bills of exchange and promissory notes, Lord Mansfield first promulgated many rules that now appear to