Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/307

 9. HOLDSWORTH: THE LAW MERCHANT 293 where they have come to be applied In different courts, it has been impossible to ignore their close connection. Both, as we have seen, have appeared to English judges to be rather a species of jus gentium than the law of a particular state. In spite of the efforts of the Courts of Common Law, the attempt to separate them has produced much inconve- nience^ and has only partially succeeded. " It was," says Sir Travers Twiss, " the practice of the consuls of the sea, before pronouncing their decision to consult the Prudhomes of the sea and the Prudhomes of the merchants. ... In the High Court of Admiralty of England it is the practice for the judge to be assisted by two of the Elder Brethren of the Trinity House of Deptford-le-Stroud, whilst the registrar of the court, at a subsequent stage of the proceedings, has the assistance of two merchants."^ Such, then, was the nature of the Law Merchant. We must now consider the history of the tribunals which ad- ministered it. Their history will fall into three periods : — (i) The period when the Law Merchant, maritime and com- mercial, is administered in local courts, (ii) The rise of the Court of Admiralty and its jurisdiction, (iii) The decay of the special courts administering the commercial part of the Law Merchant and its absorption into the common law system. (i) The period when the Law Merchant, maritime and commercial, is administered in local courts. that a ship of Placentia had been spoiled by one of Bristol; the case was heard by a jury of mariners and merchants " prout de jure et secundum legem mercatoriam foret faciendum." In the 17th century Malynes, when he wrote his Lex Mercatoria, found it necessary to devote a large part of treatise to the sea laws. In the preface he says, " And even as the roundness of the globe of the world is composed of the earth and waters; so the body of the Lex Mercatoria is made and framed of the Merchants Customs and the Sea Laws, which are involved to- gether as the seas and the earth." Cp. ibid 87. " For without naviga- tion commerce is of small account." At p. 303, when considering the courts peculiar to merchants, he deals first with the Admiralty court. diction of the Admiralty so as to enable it to "exercise concurrent juris- diction in questions of title to ships generally, and of freight, and pos- sibly of some other mercantile matters, with a power of impannelling a jury of merchants, if the judge think fit or either of the parties re- quire it," Williams and Bruce, Admiralty Practice (Ed. 1886) 13 n. k.
 * In 1833 a select committee recommended an extension of the juris-
 * Black Book of the Admiralty iii Ixxx.