Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/252

 238 //. FROM THE llOO'S TO THE 1800'S therefore it was necessary that this Court should be governed by Law Merchant." Fortescue also mentions that in certain Courts, " where matters proceed by Lawe Merchaunt, con- tracts or bargains among merchants in another realm are proved by witnesses " ^ (because 12 men of a neighbouring county cannot be obtained). Zouch goes into the matter more at length.^ Sir John Davies, he says, owns the Law Merchant as a law distinct from the Common law of England in a MS. Tract, where he affirms take notice of the Law Merchant, and do leave the Causes of Merchants to be decided by the rules of that law,, . . which is part of the Law of Nature and Nations," " whereby it is manifest," continues Zouch, " that the cases concerning mer- chants are not now to be decided by the peculiar and ordinary laws of every country, but by the general Laws of Nature and nations. Sir J. Davies saith further, ' That until he under- stood the difference between the Law Merchant, and the Com- mon law of England, he did not a little marvel 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 and ships, but now the reason was apparent, for that the Common law did leave those cases to be ruled by another law, the Law Merchant, which is a branch of the Law of Nations.' " Again Zouch says : ^ " For the advantage of those who use navigation and trade by the sea, the Law Merchant and laws of the Sea * admit of divers things not agreeable to the Com- mon law of the realm," and he cites instances and continues: canndt or do not take notice of the Law Merchant in mer- chants' cases, but that other things likewise considered, it might be thought reasonable to allow them the choice of that Court where the Law Merchant is more respected, than to confine them to other Courts, where another law is more pre- dominant. Besides there may be danger of doubt thereof, because those things are not approved of for proofs at the >De Laudibus, p. 74, ed. 1616: Selden on Fortescue, ibid. »p. 128. •i. e. the written laws of Oleron, etc.
 * ' that both the Common Law and Statute Laws of England
 * ' It is not hereby intended that the Courts of Common law
 * Zouch, p. 89. See Godolphin, p. 128.