Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/342

 328 //. FROM THE llOO'S TO THE 1800'S a separate law.^ " It is a customary law," says Malynes, " approved by the authority of all kingdoms and common- wealths, and not a law established by the sovereignty of any prince ; " and, " the said customary law of merchants hath a peculiar prerogative above all other customs, for that the same is observed in all places." ^ " That commonwealth of merchants," says Davies,* " hath always had a peculiar and proper law to rule and govern it ; this law is called the Law Merchant whereof the law of all nations do take special knowl- edge." Davies, however, recognised that it was only the foreign trade of the country that was now ruled by this special law. " Merchandizes that cross the seas are goods of another nature, quality, and consideration than other goods and chattels, which are possessed within the realm, and do not cross the seas." ** It is clear from these writers that specific differences be- tween the Law Merchant and the common law could still be pointed out. There was no survivorship in the case of merchants who were joint tenants. Wager of law was un- known among them. Bills of exchange, policies of assurance, assignations of debts were all unknown to the common law.^ But by the end of the 17th century this Law Merchant as being gradually absorbed into the general legal system of the country. As in the case of the internal trade, so in the case of the foreign trade, the older mercantile courts had ceased to exist. Jurisdiction was therefore assumed by the ordinary courts of law and equity. We have seen that in the Middle Ages the courts of the » Smith, Merc. Law (Ed. 1890) Ixxx, Ixxxi. In the East India Com- pany V. Sandys (1684) 10 S. T. at pp. 523-525 Jeflfries drew a clear distinction between inland and foreign trade. • Lex Mercatoria Preface. • Lex Mercatoria 3. • The Question concerning Impositions (Ed. 1656) 10. Davies was Attorney-General to James I. » Ibid 11, 12 citing Y. B. 13 Ed. IV. pi. 9. He said that he had wondered why there were so few cases in the books concerning mer- chants. " But now the reason thereof is apparent, for the common law of the land doth leave these cases to be ruled by another law, namely, the Law Merchant, which is a branch of the law of nations," 16, 17. • Davies 12-15 ; Malynes 73-76 ; East India Company v. Sandys (1684) 10 S. T. at p. 524.