Andrews, 405; The Duke of Beaufort v. Glyn, 406; Houghton v. Lees, 406; Stanger v. Nelson, 407; Col- A History of the French Bar, Ancient and Modern: comprising a Notice of the French Courts, their Officers, Practitioners, &c., and of the System of Legal Education in France, 417; The Friendly Societies' Manual, comprising the New Consolidation Act, 18 & 19 Vict. c. 63, &c., 417; The Laws relating THE LAW MAGAZINE; OR, QUARTERLY REVIEW OF JURISPRUDENCE. No. CVIII. ART. I.-POINTS IN THE HISTORY OF OUR LAW MERCHANT. H AVING made arrangements for the appearance in this Magazine of a series of papers bearing upon such topics connected with mercantile law as may from time to time, whether by reason of their intrinsic importance or of projected legislation touching them, demand attention, we here purpose, by way of introduction, to offer some remarks, desultory perchance, yet individually much considered, relative to certain points and epochs in the history of our Law Merchant. The inquiry, of which some sketch or outline merely is on this occasion attempted, would, as we conceive, if fully carried out, possess great and indubitable interest-an interest increased by this circumstance, that the subject adverted to, although voluminously treated by various well-known statistical writers, has never yet been regarded from a strictly legal point of view, or thoroughly investigated by a legal mind. Possibly the hints thrown out in the ensuing pages, and the remarks, somewhat loosely strung together, there appearing, may hereafter, by some abler hand, be amplified and methodized, with a view to supplying a deficiency in legal literature much to be deplored. To any one who shall be minded to apply himself to this task, VOL. LIV. NO. CVIII. B we would earnestly commend for consideration the general tenour and spirit of the following remarks, made by Mr. Reeves in the introduction to his accurate, though rather dry and uninviting, “ History of the English Law." He observes, that in order to have a right conception of our old jurisprudence, it is necessary that the inquirer should forget for a while every alteration which may have been since made-should enter upon his investigations with a mind wholly unprejudiced, and should explore the old with the same attention which is bestowed upon the modern system of law. "The law of the time,” he adds, "would then be learned in the language of the time, untinctured with new opinions; and when that was clearly understood, the alterations made therein, in subsequent periods, might be deduced and exhibited to the mind of a modern jurist in the true colours in which they appeared to persons who lived in those respective periods." If, then, "our statutes and the interpretation of them, with the variations that have happened in the maxims, rules, and doctrines of the law, were presented to the reader in the order in which they successively originated, such a history, from the beginning of our earliest memorials down to the present time, would not only convey a just and complete account of our whole law as it stands at this day, but place many parts of it in a new and more advantageous light than could be derived from any institutional system, in proportion as an arrangement conformable with the nature of the subject surpasses one that is merely artificial." The view thus expressed by Mr. Reeves seems to us to be correct, and might advantageously be followed out by any future historian of that particular branch of law wherewith alone in this article we are concerned. The Lex Mercatoria has been described as "a system of equity, founded on the rules of equity, and governed in all its parts by plain justice and good faith" (per Buller, J., Master v. Miller, 4 T. R. 320). It includes all laws written, customary or traditionary, which are designed to regulate, or which have reference to, mercantile property or persons. True it is, that the term Lex Mercatoria is often used as comprising merely those customs recognised and sanctioned amongst merchants which have become incorporated with our Common Law, and during centuries have constituted part and parcel of the lex terræ here prevalent; but such a definition is obviously too limited, and is ill suited for one who would apply himself to an examination, however cursory, of the origin and progress of our mercantile institutions. Adopting the wider view above suggested, we may affirm that the component elements of our Law Merchant are-1st, Express enactments; 2ndly, Mercantile usages or customs; 3rdly, The abstract principles of our unwritten law-evidenced either by reported cases or by text-writers of repute, so far as those principles are applicable to mercantile transactions. Mercantile Customs would seem to be properly divisible into three classes: 1st, Customs alluded to by Blackstone (1 Com. 273), as those "which all nations agree in and take notice of." 2ndly. Customs prevailing throughout the length and breadth of this country, which are in general judicially noticed here without proof,-at all events when they have been once established and shown to exist: for instance, "by the custom of merchants, a duty arises on bills of exchange from the operation of law, in the same manner as a duty is created on a deed by the act of the parties" (per Eyre, C. J., Master v. Miller, 2 H. Bla. 140). To customs of this latter kind, Lord Campbell also evidently alludes in Brandao v. Barnett (12 Cla. & F. 787), where he says that the general lien of bankers is part of the Law Merchant, and is to be judicially noticed like the negotiability of bills of exchange, or the days of grace allowed for their payment. When a general usage has been judicially ascertained and established, it becomes part of the Law Merchant, which Courts of justice are bound to know and recognise. Such, remarks the Lord Chief Justice, has been the invariable understanding and practice in Westminster Hall for a great many years: there is no decision or dictum to the contrary; and justice could not be administered, if evidence were to be given toties quoties to support such usages-an issue being joined upon them in each particular case. To the third class of customs above mentioned may be referred such as are purely local, and which must, when relied upon, be proved.1 Customs of this kind, or rather local usages of trade, are very frequently relied upon in courts of law, in order to explain ambiguous instruments, or to add to the contracts of parties terms not inconsistent with them. Bearing in mind, then, that customs are distinguishable into the three classes just specified, we would repeat that mercantile law, in fact, depends, 1st, upon specific statutes; 2ndly, upon the customary or unwritten law, so far as that may be applicable to mercantile transactions; 3rdly, upon customs or usages prevalent amongst merchants. Such being the component elements of our Law Merchant, we would next remark that its history may properly be treated as divisible into three several portions, the first of these periods commencing with the Norman Conquest, and extending down to the time of Sir E. Coke, who became Chief Justice of the Common Pleas on the 30th of June, A.D. 1606, and presided in the Queen's Bench from 1613-1616; the second of the three periods above referred to extending from the lastmentioned epoch down to the appointment of Lord Mansfield, in the year 1756; and the third reaching down to the present time, from the date last mentioned. During the first of these periods we shall find commerce slowly, and with difficulty, struggling into some sort of recognition and importance. During the second we shall find considerable efforts and some substantial progress made in fixing the laws designed to regulate it. During the third period we shall find our Lex Mercatoria erected gradually on a firm, enduring, and comprehensive basis: this great result having been effected mainly by the efforts of our judges, in discussing and ascertaining the principles of commercial law, and the rules which ought to govern it; partly also by the assiduity of our legislature in the framing of remedial measures where those rules and principles were proved to be inadequate or inapplicable. On inquiring as to the origin of our mercantile law, we must 1 As instances of customs falling within the class here adverted to, see Pollock v. Stables, 12 Q. B. 765; Sutton v. Tatham, 10 Ad. & E. 270; Dails v. Lloyd, 12 Q. B. 531. |