Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/253

 7. SCRUTTON: ROMAN LAW INFLUENCE 239 Common law, which are held sufficient in the Admiralty among the merchants." Blackstone defines very clearly the position of the Law Merchant in his time ; ^ " for as the transactions of foreign trade are carried on between subjects of independent states, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by a law of their own, called the Law Merchant or Lex MercatoriOf which all nations agree in and take notice of ; and in particu- lar it is held to be part of the law of England, which decides the causes of merchants by the general rules which obtain in all commercial countries, and that often even in matters relat- ing to domestic trade, as for instance in the drawing, accept- ance and transfer of inland bills of Exchange." And again : " thus in mercantile questions, such as bills of exchange and the like; in all marine causes relating to freight, average, demurrage, bottomry, insurances, and others of a similar nature, the law merchant, which is a branch of the law of nations, is regularly adhered to." ^ Now this Law Merchant, thus recognized by the laws of England, drew part of its matter from the Civil law. Being " part of the law of nations," in that it was composed of the customs of merchants of all nations, it included a number of usages which were rehcs of the Civil law, continuing the practice of the coasts of the Mediterranean. Again, the written laws of the sea, the Consolato and the laws of Oleron, which formed part of the Law Merchant, and the latter of which was expressly embodied in the laws of England, were based on the Civil law, with such additions as were necessary to meet the needs of the time. Thus Duck is justified in speaking of the " Curia Mercatorum, in qua lites de con- tractibus mercatorum ex aequo et bono secundum jus civile Romanorum terminandae sunt." ^ Indeed even at that time the Civil law was recognized as an authority, where usage was uncertain. Malynes records a case with which he was per- sonally acquainted, where an unfortunate merchant uninten- tionally guaranteed the solvency of another, and " the opinion of merchants was demanded, whereon there was grand diver - ' Bl. i. 273. » Bl. iv. 67. » ii. 8, 3, 25.