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Colbert, and commented upon by Valin, considerably expanded the bounds of commercial law at an early period; and finally, the Code of Commerce of Napoleon, did much to introduce certainty and uniformity in the mercantile legislation of Europe.
But the recent extension of commerce and communication within the different countries, and between all nations of the world, has thrown all these ordinances and codes far behind the wants of the age. The laws written and unwritten, express or customary, of such countries as the United Kingdom, France, and the United States, have acquired a wonderful development, refinement, and precision. In the United Kingdom especially, we have had commercial law judges, such as Lord Mansfield, Lord Holt, and a host of their successors, of wonderful sagacity and power of intellect, who have laid the basis of a beautiful and systematic fabric, whose depth and proportions will ever secure to Britain the gratitude and admiration of the civilised world. Whilst, however, we have gained in expansion and refinement, we have lost in uniformity, perspicuity, and compactness. We can scarcely say now that we have a common code to appeal to. Even as between England, Scotland, and Ireland, the commercial laws differ in some material points.
It is gratifying to find that, since the publication of the previous edition of this work, a considerable stimulus has been given to the assimilation of these laws. In 1853 a Royal Commission was appointed to inquire and ascertain how far the mercantile laws in the different parts of the United Kingdom of Great Britain and Ireland might be advantageously assimilated, and upon its report two Acts were passed, amending the laws on trade and commerce in the respective countries, for the purpose of introducing uniformity among them. Since then considerable progress in this direction has also been made in the Laws of Bankruptcy. But no steps have as yet been taken as regards any assimilation of the Laws of the British Colonies, either among themselves or with our own. The state of these laws certainly deserves the attention of the Legislature. For an explanation of some of these, as the law of the Cape of Good Hope, recourse must be had to such obsolete systems as the Roman Dutch Law, &c. And for the laws of other colonies, we must take the existing foreign countries, as modified by British tribunals. the current legislation is uncertain and inaccessible. No uni
Laws of But even
formity exists in the form of Colonial Laws; and whilst some subjects are regulated entirely by Colonial Ordinances, others are regulated partly by them and partly by Imperial Statutes.
It is to be hoped that the work of assimilation so well commenced may be pursued still further, and that, as we stretch our efforts to the British colonies, we may attempt to introduce some uniformity in the commercial laws of at least the principal mercantile nations. In the Law of Partnership a greater uniformity now obtains by our adoption of the principle of limited liability. The introduction into the English law of many principles of the Scotch law, which is founded on the Roman law, brought us nearer to the laws of Europe. And I am glad to find that the National Association for the Promotion of Social Science are endeavouring to bring about some assimilation in the principles which govern the adjustment of General Average in different countries. The desirability of such assimilation has been universally admitted; and it has become a great necessity. At a time when international intercourse is so extensive; when Banking, Railway, and other companies are formed with capital belonging to all nations; and when labourers from all quarters are flowing to the market, nothing can be more important than to render the laws which regulate commercial intercourse between nations, clear, uniform, and certain.
The late gifted and eminent Prince Consort, in a letter addressed to the author on the subject, which appeared in the first edition of this work, said, "It cannot be doubted that uniformity in the laws by which commerce is regulated in different countries would be, if it could be obtained, of immense advantage to commerce generally. The question would be as to the mode of attaining this uniformity. Nothing," His Royal Highness thinks, "would tend more to give public opinion a proper direction than such a publication as yours, where the legislative enactments of different countries upon the same subject would be found in juxtaposition, and where the ready means thus afforded for comparing their relative merits would infallibly lead to a certain degree of assimilation, the advantage and convenience of which would be made obvious. Or, should it not lead to this result, the publication would, at all events, afford to the mercantile world the means of knowing the points of difference in the various commercial codes on which it is most important for them to be correctly informed."
Many changes have taken place of late years in the laws of foreign countries. The German States have advanced a step further towards a common Commercial Legislation. Since the introduction of the Law on Bills of Exchange, an entire Code of Commercial Law has been prepared by a Commission appointed by the Diet, which has already been adopted by most of the States. But Hamburg, Bremen, Hanover, and Holstein have submitted the work for the consideration of a Special Commission. Unfortunately, the Law of Bankruptcy is not included in the Code; hence the existing laws founded upon ancient ordinances are everywhere imperfect and dissimilar. Some of the Scandinavian States have reformed their Laws of Bankruptcy. The Commercial Legislation of Italy is necessarily in a state of transition. Since the formation of the Italian kingdom, the Codes and Laws of Commerce existing in the different States have not been abrogated, but they are likely to merge into a Common Code as soon as the Government can enter into such a reform. In France there have been but few alterations in the Laws of ComBut the Code, a model for brevity, lucidity, and comprehensiveness, can scarcely be said to represent the state of the law in France at this moment. It needs revision and expansion, if it is to maintain its place in the mercantile legislation of Europe. Several States of South America have published new Codes of Commercial Law.
Some explanation must be given of the method pursued as regards the statement of the Foreign Laws. In order to avoid the reproduction of the entire law on the different subjects in each country, it was deemed necessary to insert only such provisions of the same as seemed either to be of greater importance for international purposes, or to exhibit greater divergence from our own or from the general laws. But in doing this the most careful attention has been bestowed on the preservation of the spirit and meaning of the original codes or laws. As stated in the first edition of this work, as regards Foreign Laws, much assistance has been derived from the "Concordance des Codes de Commerce" of M. Anthoine de St. Joseph; but many new laws have been enacted since the publication of that work. For the laws of the United Kingdom, I have been greatly indebted to such works as Smith's Mercantile Law, Chitty and Byles on Bills of Exchange, Abbott and Maude and Pollock on Shipping, Lindley on
Partnership, Arnould on Insurance, Hazlitt and Roche on Bankruptcy, Addison on Contracts, Dr. Phillimore on International Law, and other authors, to all of whom I return my best thanks.
In the compilation of this work my chief aim has been to furnish a compendium of the most practical portion of the Laws relating to Commerce in this and other countries. In conclusion, I trust that in the more compact form in which this work is now published, it may become more extensively useful, and may continue to deserve the same amount of approbation which it was the fortune of the first edition to receive in this and other countries.
10, FARRAR BUILDINGS, TEMPLE,
30th October, 1863.
3. Restraints of Trade by voluntary agreements
4. Restraints of Trade for want of understanding-Minors.
5. Restraints of Trade for want of understanding-Lunatics