day followed by others of the same nature. Hence it becomes necessary that every day they should be decided. It is otherwise with those actions of life which have a principal influence on futurity, but rarely happen. We seldom marry more than once; deeds and wills are not the work of every day; we are but once of age." Trade is characterized, moreover, by a certain cosmopolitanism which should be reflected in the laws which relate to it. As observed by the same philosopher:" "Riches consist either in lands or in movable effects. The soil of every country is commonly possessed by the natives. The laws of most states render foreigners unwilling to purchase these lands; and nothing but the presence of the owner improves them: this kind of riches, therefore, belongs to every state in particular; but movable effects, as money, notes, bills of exchange, stocks in companies, vessels, and, in fine, all merchandise, belong to the whole world in general; in this respect, it is composed of but one single state of which all the societies of the earth are members." Nations have traded with one another from the earliest ages, and a jus gentium, a law merchant or business law, was developed and observed at a remote period notwithstanding the fact that foreigners as such were then universally regarded as natural enemies and legitimate objects of spoliation." It may, therefore, be thought a matter of surprise that the English, "who," observes the writer already quoted, "know better than any other people on earth how to value those three great advantages, religion, commerce, and liberty," should have so completely neglected this branch of jurisprudence. At the present time it cannot be said that the common law looks upon business as a distinct phenomenon, or that its administration is characterized by that appreciation of the needs of business and of the merchant class that prevails elsewhere. The leading cases, notably those dealing with the law of combination and conspiracy, do not ordinarily differentiate business activities from others not of that character. Prior to the founding of the American colonies, there is scarcely a business decision to be found in the reports, and today 5 Esprit des Lois, bk. 20, ch. 23. • Boeckh, Public Economy of the Athenians, bk. 1, ch. 9; bk. 2, ch. 11. Maine, Ancient Law, ch. 3. Borough Customs (Selden Society), vol. 2, introd., p. xviii. the term "Commercial Law" suggests to us merely the law of negotiable instruments, just as it did to Mr. Justice Cranch more than one hundred years ago, when he was struck by this absence of early precedent and attempted to explain it. But I shall point out that this condition of our law has come about through accidental circumstances rather than as the result of natural development. After indicating some of the confusion which has resulted from the failure to deal with business as business, particularly in the field of business' regulation, I shall attempt to show, as the main purpose of this paper, that the common law has, in truth, a real potentiality on its business side, which, when fully appr ciated and made use of, may be of great service in dealing with business problems at the present time. The almost total absence of business decisions in the Year Books and for generations afterward loses much of its force as a reflection upon the common law when we understand the reasons for this absence, realize the early activity of the common law on its business side, and note the vigor and intelligence which characterized its administration in the period subsequent to the Norman invasion and prior to the Hundred Years War and Black Death. During this interval, as natural under the social and economic conditions then prevailing, business was carried on at stated periods in fairs and 7 Dunlop v. Silver, Appendix, 1 Cranch (U. S.) 367, 374 (1801). "... Before the time of James I., we have scarcely a mercantile case in the books; and yet long before that time, the laws respecting real estates and the criminal code were nearly as well understood as they are at this day. Hence it cannot be a matter of great surprise, that the principles of commercial law which have been developed by the exigencies of modern times, should have been, by some, considered as exceptions from the general principles of the common law. The truth seems to be, that the principles of the common law have not been changed, nor innovated upon, by the introduction of those commercial principles, but that these principles have existed from the earliest times, even from the rudest state of commerce, and the only reason why we do not find them in the ancient books, is, that the circumstances had never occurred which rendered it necessary to draw them forth into judicial decision. "Another reason, perhaps, why we see so much tardiness in the courts in admitting the principles of commercial law in practice, has been the obstinacy of judicial forms of process, and the difficulty of adapting them to those principles which were not judicially established until after those forms had acquired a kind of sanctity from their long use. Much of the stability of the English jurisprudence is certainly to be attributed to the permanency of those forms; and although it is right that established forms should be respected, yet it must be acknowledged that they have in some measure obstructed that gradual amelioration of the jurisprudence of the country which the progressive improvement of the state of civil society demanded. . . .” 8 definite market areas, an arrangement admitting of close supervision and accomplishing at the same time many of the results of modern advertising. Forestalling, regrating, and engrossing were prohibited in the interest of fair trade and equal opportunity. To every fair a court of Piepowder was appurtenant. This court, which Blackstone says "was the lowest and at the same time the most expeditious court of justice known to the law of England," 10 but which in his time was already a matter of history, was a court of record, in which the law merchant was administered by the steward of the fair with the assistance of the merchants," and which originally and for a long time had jurisdiction of all matters taking place in the time of the fair, without limitation as to amount, civil as well as criminal,12 and between denizens as well as foreigners. In the zenith of its power it "was one of the most active and most widespread of all the tribunals formerly existing in England, and formed a separate organic unit in the judicial system of the realm." 13 "As attachments were then returnable and pleas might be adjourned from hour to hour, either there was a continuous session daily from eight or nine A.M., until sunset if necessary, or there might be one session in the morning and one in the afternoon." 14 Similarly there were also Staple courts attached to certain towns through which the foreign trade in wool, leather, and other standard commodities was carried on, likewise having general 8 Stat. 7 & 8 Vict. (1844) purported to "abolish" these offenses. But it is a mistake to suppose that they are obsolete. They were offenses against the market, and it is the extent of the latter and the forms of business that have changed. Coke Inst., pt. 4, ch. 60. 10 Commentaries, bk. 3, ch. 4, p. 32. 11 Coke Inst., Blackstone's Commentaries, supra. See Select Cases on the Law Merchant (Selden Society) for many instances of declaration of the law by, and other activity on the part of, merchants at the Fair Court of St. Ives. The following summons issued from this court in 1275, and printed in Select Pleas in Manorial Courts (Selden Society), vol. 1, p. 153, is illustrative: "Let all the merchants of all the commonalties that are in the fair of S. Ives be summoned to come tomorrow before the steward to adjudge and provide that Thomas de Toraux, Ralph Balancer, Robert Pole, and John son of Thomas at Gate, merchants selling canvas, have justice and equity (justiciam et equitatem) in the matter of Simon Blake of Bury servant of the said Thomas and his fellows who was found in their booth measuring canvas with a false ell and selling it. Pledge for Thomas's appearance, all his goods. Pledge for the other three, Sir Richard Melbourne to the amount of £20." 12 See generally Introduction to Select Cases on the Law Merchant, supra. civil and criminal jurisdiction and administering the law merchant. The court had jurisdiction of all manner of contracts and covenants between merchant and merchant or other, whether the contract was made within the staple or without.15 A statute passed in the time of Edward the Third 16 in effect codified the law of the Staple towns, and defined the authority and jurisdiction of the court with particularity, but the court itself was far more ancient.1 None of the King's officers was allowed cognizance of things belonging to the staple nor were his officers allowed to meddle therein. It was enacted "because that merchants cannot often long tarry in one place in hindrance of their business, we will and grant, that speedy right be to them done from day to day and from hour to hour." There were business decisions, therefore, doubtless in abundance, but they never found their way into the Year Books or early reports as we know them, these being confined to cases arising in the King's courts as distinguished from those involving the law merchant.18 not This law merchant was the business law of the world, merely the law of bills and notes as we think of it today. Its scope may be gathered from Malynes' Lex Mercatoria, published in England in 1622, which dealt with such subjects as suretyship and merchants' promises, bills of exchange, letters of credit, banks 15 Coke Inst., pt. 4, ch. 46. 17 Coke Inst., pt. 4, ch. 46. 16 27 Ed. III., Stat. 2 (1353). 18 Zouch, Jurisdiction of the Admiralty of England (A. D. 1663): “... The Law Merchant is likewise mentioned and allowed by Sir Edward Coke, in his comment upon Littleton, as a law distinct from the common law of England. And so doth Mr. Selden mention it in his notes upon Fortescue. And Sir John Davis more fully owns it in a manuscript-tract touching impositions; where he affirms, 'That both the common law and the statute laws of England take notice of the Law Merchant, and do leave the causes of merchants to be decided by the rules of that law; which Law Merchant, he saith, as it is part of the law of nature and nations, is universal and one and the same in all countries of the world.' . . . He saith further, 'That until he understood the difference betwixt the Law Merchant and the common law of England, he did not a little marvel that England, entertaining traffick with all nations of the world, having so many ports, and so much good shipping, the King of England also being Lord of the Sea, what should be the cause that, in the books of the common law of England, there are to be found so few cases concerning merchants or ships: But now the reason thereof was apparent, for that the common law of the land did leave those cases to be ruled by another law; namely, the Law Merchant; which is a branch of the law of nations." and bankers, factors and servants, freighting of ships, charter parties and bills of lading, policies of assurance, contribution or average, shipwreck, partners, bankruptcy, shipping and navigation, and merchants' oppignorations. No attempt will be made to trace in detail the influences that combined to impair the vitality of the common law on its commercial side and bring it into the condition in which Lord Mansfield found it. By the time that society had recovered from the direct effects of the disasters referred to, the period of discovery had dawned and the main commercial interests of England gradually ceased to be internal. "The increase of wealth, bringing a permanent and continuous local demand for commodities, together with the improvement of transport facilities and means of communication, due largely to the creation or repair of roads in the eighteenth century, diminished the importance of fairs and periodical markets, and tended to sap the vitality of the old tribunals of justice or rendered many of them wholly obsolete." 19 Thus weakened, the triumph of the King's courts, always jealous of their commercial rivals, was not long to be postponed, and the administration of business law fell into the hands of judges having no training for or sympathy with the task.20 From this review it may be fairly concluded that the present condition of our law is the result of peculiar circumstances rather than of a natural development, and that under a true expression of the spirit of the common law, business would today occupy a distinct place in English law, just as it has continued to do under foreign systems. The failure to make the necessary differentiation has introduced confusion into a department of our law in which above all others clearness is important, and this confusion is conspicuous in the field of regulation. The courts administering the common law, instead of treating business as business, have divided it into two classes, public and private. The classification pervades all the books, all the statutes, and all discussions. Most of the American states have their public service or public utility commissions dealing for the greater part with and within the class of corporations enjoying franchises or 19 Select Cases, supra, introd., p. xix. 20 Jenks, A Short History of English Law, pp. 40, 75. |