besides conforming to the traditions of the particular pursuit, must comply with the legal requirements affecting it, if the person concerned is to succeed in his undertakings and enjoy the fruits of his labour. Mercantile Law,1 then, is intended to serve the interests, or check the operations, of traders in general; Maritime Law,2 those of a large class of carriers ; Industrial Law,3 those of producers. The order in which they have been mentioned is that of their historical development. 1 We shall begin by indicating the way in which the subject must be approached, giving the reader a general idea of the structure of our Law, the way in which it has been formed, and how it is administered; and shall in successive lessons sketch the substance of those portions of it bearing on the respective topics which come before him. §3. "Unwritten, or common law," writes Blackstone, “is properly distinguishable into three kinds. 1. General customs, which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification. .. This for the most part settles . . . the solemnities and obligation of contracts. the respective remedies of civil injuries . . . and an infinite number of minuter particulars. Thus, for example, that a deed is of no validity unless sealed and delivered that money lent upon bond is recoverable by action of debt . . . these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support."5 "2. Particular customs, or laws which affect only the inhabitants of particular districts. To this head may most properly be referred a particular 2 Seerecht; droit maritime. 1 Handelsrecht; droit commercial. ... 4 Commercial Law, as set forth by the 'Code de Commerce,' is taught in the Belgian First Grade Schools, from the Middle Form upwards of the section commerciale. 5 Commentaries on the Laws of England, 7th edition, vol. i. pp. 67 f. ... system of customs used among only one set of the king's subjects, called the custom of merchants, or lex mercatoria,1 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."3 "A very natural and very material question arises: How are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, By the judges in the several courts of justice. They are the depositary of the laws, the living oracles, who decide in all cases of doubt, and who are bound by oath to decide according to the law of the land. . . . These judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law. . . The doctrine of the law then is this: that precedents and rules must be followed unless flatly absurd or unjust, for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration. . . . The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the volumes of reports which furnish the lawyer's library."6 "3. Certain 1 It is first mentioned in the Charta Mercatoria of Edward I. (Jus con uetudinarium, jus mercatorum.) 2 As in other countries. Thus the greatest part of the classical Roman law of trade was derived from the jus gentium, or body of customs common to the various Italian tribes. The word arrha appears to be of Phoenician origin. Such words as hypotheca are Greek. 3 BLACKSTONE, pp. 68–74. 4 The cases upon which these are founded are cited by the name of the plaintiff versus (contracted into v., i.e. against) that of the defendant. 5 These are published in extenso quarterly; but concise daily reports of the more important cases appear in the Times, &c., and weekly reports are reproduced in a separate form by the office of the leading journal, which are of special interest to the commercial world. 6 BLACKSTONE, pp. 69-71. particular laws, which by custom are adopted in particular courts of pretty general and extensive jurisdiction. By these I understand the civil laws. . . . There are four species of courts in which the civil laws are permitted under different restrictions to be used." Amongst these are enumerated the courts of Admiralty. "Their reception in general, and the different degrees of that reception, are grounded entirely upon custom."1 "The leges scriptae, the written laws of the kingdom, are statutes and edicts made by the king's majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in parliament assembled. The oldest of these now extant, and printed in our statute books, is the famous Magna Carta, as confirmed in parliament 9 Henry III."2 So much for Blackstone's classical statement. "Merchants," writes Lord Farrer, "have done what they found useful, and the lawyers who have been entrusted with the function of declaring the law, have very sensibly, by means of a useful fiction, declared the law to be what the merchants have practised, wisely confining their own part in the matter to ascertaining the customs of trade, and giving to those customs form and logical consistency. Finally, the legislature has in some cases adopted the rules thus determined, and has given them the form and sanction of an Act of Parliament."3 § 4. Whilst, then, the older 'law merchant' is a part of the common law, a considerable portion of our Mercantile Law administered at the present day is enacted or statutory, and tends to become more and more so. During the second half of this century such important topics, amongst others, as Merchant Shipping, Companies, Partnership, and Bills of Exchange, &c., have been regulated by statute. The process of codification has most recently been applied to the Law of Sale also.4 1 BLACKSTONE, pp. 67, 79, 83. 2 lbid. p. 85. 3 The State in its Relation to Trade, p. 24. 4 By the Sale of Goods Act, 1894, a copy of which should be obtained by every reader. Mercantile law is concerned characteristically with that description of property called 'personal,' or movable, which in modern times has acquired an importance that did not belong to it in the earlier stages of society. Besides the legal topics just mentioned, we shall have occasion to notice in their due connection the principles of the general law of Contract, the rules governing the contract of Agency, the law of Common Carriers, the relation of Debtor and Creditor, and the law of Marine, Life, and Fire Insurance. § 5. The greater part of Industrial law is of modern origin, and contained in parliamentary enactments. Here, as in respect of the law of Commercial Contracts, "the freedom of one continually resolves itself into the restriction of another." "In practical legislation the first step is to throw aside all supposed absolute rights or inflexible principles." We have to do with "a system of adjustments and compromises founded upon experience and trial." Industrial, like Commercial Law, should approximate as closely to economic principles as the state of society admits of.2 Under this head attention will have to be given to legislative restrictions on hours of labour and the employment of women and children, in the Mining and Factory Acts; to the regulation of wages in the Statute of Labourers, the Statute of Apprenticeship, and the Truck Act; to the enactment and repeal of the Combination Laws, and final recognition of Trade Unions; to Poor Law legislation; and to measures regulating Patents and Trade Marks. 1JEVONS, The State in its Relation to Labour, ch. i., Principles of Industrial Legislation.' 2 The relation between the two has been admirably expounded by the writer just quoted. LESSON II. INTRODUCTION TO COMMERCIAL AND INDUSTRIAL LAW (continued). Territorial Operation of English Law-Courts of Justice-Government Departments concerned with Trade or Industry-Continental Codes of Commercial Law-Conflict of Laws. § 6. NEXT as to the territorial operation of English Law. "It is enacted by 27 Henry VIII. that the laws of England and no other shall be used in Wales." 1 "6 Anne, Act of Union, art. 18.—The laws relating to trade, customs, and the excise shall be the same in Scotland as in England. But all the other laws of Scotland shall remain in force; but alterable by the parliament of Great Britain."2 Such portions of the law administered in Scotland as are peculiar to North Britain are derived very much from the Civil Law. "The Irish were governed by what they called the Brehon law.3 In a Parliament holden at Kilkenny, 40 Edward III. ... the Brehon law was formally abolished. . . But the Irish nation, being excluded from the benefit of the English statutes, were deprived of many good and profitable laws, made for the improvement of the Common Law, and therefore it was enacted [10 Henry VII.] that all acts of parliament before 2 Ibid. p. 96. 1 BLACKSTONE, vol. i. p. 95. 3 Some interesting features of this law have been set forth by Sir H. Maine in his Early History of Institutions. 4 Poyning's Law. |