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THE fundamental principles of right and equity which constitute the leading sources of Commercial Law are immutable in their essence and universal in their adaptation; yet amidst essential unity there is circumstantial variety. Owing to the wide extension of intercourse, and the wonderful progress of commerce, society is linked in such a multitudinous and intricate range of connections, that a vast variety of authoritative rules becomes necessary to meet the requirements of each nation. Whilst, therefore, the leading principles of Commercial Law are everywhere uniform, many are the municipal laws and local usages which control or modify them, and which it is necessary to know, in order to regulate aright the mercantile relations between different States.
It is the object of the present work to bring these fundamental principles of the Law Merchant, and the rules which have been superadded to them in different countries, into contact with each other, so that we may profit by each other's experience, and at the same time gather materials for the attainment of solid and permanent progress in mercantile legislation. The chief advantage of such a work is the ready access it affords to the existing laws of the principal countries of the world. Other works on Commercial Law, such as Smith's or Chitty's, are confined to the Law of England. In this the field is enlarged, and the laws of foreign countries are put side by side with our own, because commerce is essentially international, and we are deeply affected by the laws and procedure of other States. Hence the distinctive title of "International Commercial Law." The science of International Law has hitherto been limited to the political relations of states in time of peace and war, but recently not a few special
conventions relating to commerce have been formed, such as those relating to International Copyright, Trade-marks, and Public Companies. The portion, moreover, called Private International Law contains provisions intimately affecting the interests of merchants, whilst a great branch of International Law proper consists in settling the rights of commerce in time of peace and war, which forms the subject of our introductory chapter.
In the first edition of this work, the essential uniformity which exists in all the Codes and Laws of Commerce was pointed out. From the very first the Law Merchant has been held not so much a part of the municipal law of any state, as a part of the Jus Gentium, inasmuch as its chief provisions apply as well to foreign merchants as to natives: most of the usages and customs of trade have originated in a like manner in all countries, and many of the rights and duties accruing from the various mercantile transactions are founded on the dictates of natural law. What is technically called the Law Merchant is the body of laws enacted at different times by commercial nations (a). We know but little of the commercial laws of the Tyrians, Phoenicians, Carthaginians, and Assyrians. By tradition we learn that the Rhodian law acquired the highest rank, and we know that the Romans embodied that law in their legislation. Of Grecian laws we have but few distinct traces, beyond what we gather from the works of Demosthenes and other writers. The Roman law, as far as it applied to commerce and navigation (b), and indeed in all its branches, was itself a system of universal jurisprudence. The ordinances and statutes of the Mediterranean states, and of the Hans towns, especially the Consolato del Mare, the Roles or Jugemens d'Oleron, the Jugemens de Damme or Lois de Westcapelle, the Laws of Wisby, the Guidon de la Mer, and the Hanseatic Ordinances, are leading authorities in almost all mercantile countries. The famous Ordinances of Commerce and Navigation prepared by
(a) See Malyne's Consuetudo vel Lex Mercatoria, or the Ancient Law Merchant, London, 1656: Molloy, De Jure Maritimo, London, 1682; Beawes, Lex Mercatoria, London, 1813; Pardessus, Collection de Lois Maritimes anterieures au xviii. siècle, Paris, 1828.
(b) Dig. lib. xvii. tit. ii., Pro socio; Dig. lib. xlii. tit. viii., Quæ in fraudem cre
ditorum; Dig. lib. ii. tit. xiv., De pactis; Dig. lib. xiv. tit. ii., De Lege Rhodia de jactu; Dig. lib. xliv. tit. vii., De obligat. et actione; lib. xix. tit. i., De actione emti et venditi; lib. xiv. tit. i., De exercit. actione; lib. iv. tit. ix., Nautæ, caupones, &c. ; lib. iii. tit. v., De Negotiis Gestis, &c.
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 Laws of foreign countries, as modified by British tribunals. But even the current legislation is uncertain and inaccessible. No uni
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."