Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/343

 9. HOLDSWORTH: THE LAW MERCHANT 329 Staple were the chief courts which regulated the dealings of foreign merchants. Malynes says, " our staple of wools is now out of use, and staple towns are all, as it were, in- corporated into London." ^ It is clear from his account of the courts which administer the law merchant that there was in England, in the latter part of the 17th century, no effective court specially set apart for the merchants.^ In the 16th and earlier 17th centuries the Council and the court of Ad- miralty had supplied the place of such a court. But the jurisdiction of the Council in England had come to an end in 1640 ; and we have seen that the Courts of Common Law had deprived the Admiralty of the greater part of its jurisdiction over mercantile causes. In 1601 ^ a court had been estab- lished in London consisting of the recorder, two doctors of the civil law, two common lawyers, and eight " grave and discreet " merchants, to hear insurance cases, " in a brief and summary course, as to their discretion shall seem meet, without formalities of pleadings or proceedings." But it had been held, in 1658, that proceedings before this court were no bar to an action at law ; * and it was constantly hampered by prohibitions.^ Merchants were therefore driven, either to arbitration,^ or to the courts of law, or, in matters which involved the taking of accounts, to the court of Chancery.^ Reported cases of the 17th century illustrate the effect of this upon the Law Merchant. They show that mercantile law is ceasing to be the law of a class, and that it is becoming part of the general law of the land. The earlier cases upon Bills of Exchange treat them as ruled by special customs, applica- » 43 Eliza, c. 12, Reenacted and amended 13, 14, Car. II. c. 23. • It was said in 1787 that, from the reign of Elizabeth to 1765, when Ld. Mansfield became C. J., it had not heard 60 cases on marine insurance. Smith, Merc. Law, Ixix. • Malynes, Pt. III. c. xv; cp. Dasent xxii xxxiv; xxiii xlvi. ' " Merchants' causes are properly to be determined by the Chan- cery, and ought to be done with great expedition; but it falleth out otherwise, because they are by commission commonly referred to mer- chants to make report of the state thereof unto the Lord Chancellor," Malynes 319. There is an affinity between the jus gentium of the merchants and English equity, as there was between the Roman jus gentium and jus naturale. Duller J. Lickbarrow v. Mason (1793) 1 S. L. C. 709. 7
 * Lex Mercatoria 155. ^ Ibid, Pt. III. chaps, xiv-xx.
 * Came v. Moye 2 Sid. 121.