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And do not let us think that “the Common Law of England," about which we hear so much, is the only or the first Common Law, or that it has anything very peculiar about it. Upon the contrary, a way back among the Greeks
* Aristotle divides law into that which is Common, being in accordance with nature and admitted by all men ;” (our old friend Law of Nature) “ and that which is peculiar, settled by each community for itself.”l and Demosthenes refers to the “ Common Law of all mankind."2 Justinian too declares that
“Every community, governed by laws and customs, uses partly its own law and partly laws common to all mankind (Communi omnium hominum)”3 And the Stoics identified the Law of Nature or the Common (Universal) Law with the Divine reason. 4
The Common Law then is not a code, or a body of law, or an anthology of synoptics. It is precisely the same thing as the Law of Nature and the Law of Nations5 — the vague, undefinable ideal to which we feel that we are stumblingly approaching; guided by reason into the right road, some say; cuffed by failures out of the wrong, think I.
Lord Esher pretty well unmasked this glorified unreality, the Common Law, when he said that
" The duty of the Judge is to find out what is the rule which people of candor and honor and fairness in the position of the two parties would apply in respect to the matter in hand. That is the Common Law of England.”6
Professor Thayer (whose death was a great loss) said that "the exercise of their (the judges') never questioned jurisdiction of declaring the Common Law * has consisted in a great degree in declaring the scope and operation of sound reason, wherein the Common Law so largely consists."7
Bryce's Studies in Hist. and Jur., 567.
5« The Law of Nations is Common to all mankind”: Justinian's Institutes, Lib. I, Tit. 2, s. 2. Speech 15 Nov., 1897.
7Evidence at the Common Law, 207-8. Prof. Thayer speaks of "the Common Law system of Evidence.” But of course he does not mean the common custom of all England as to evidence. He says “ We have generated and evolved this large, elaborate and difficult doctrine. We have done it not by direct legislation, but almost wholly by the slowly accumulated rulings of judges made in the trying of cases during the last two or three centuries” (p. 2; and see 207-8).
Lord Bowen declared that the Common Law is an “ arsenal of common sense principles." And Maine if asked for a rough definition would say that “ Law is common sense.” 1
This Common Law of England is the most impudent pretender of all these phantom laws. For unquestionably a very large part of it was not law of England at all (common or special) but simply Roman law, smuggled in by Bracton?, openly introduced by Holt,3 consciously and unconsciously adopted by many others. And perhaps the idea that the Common Law of England was “the law of the royal court,” as opposed to the local laws of the old seigneurial courts--a sort of jus gentium imposed by a Prætor Peregrinus—is the real meaning of the term. Maine thinks that by its earliest expositors " it was regarded as existing somewhere in the form of a symmetrical body of express rules, adjusted to definite principles. The knowledge of the system however in its full amplitude and proportions was supposed to be confined to the breasts of the judges; and the lay public and the mass of the legal profession were only permitted to discern its canons intertwined with the facts of the adjudged cases. Many traces of this ancient theory remain in the language of our judgments and forensic arguments."
Equity has never had such a concrete look as this Common Law (the adjective of which might have kept us right if we had not forgotten its significance). Equity, we admit, is an unwritten and inexpressible aspiration. But have you observed (as hinted at above) that as the Roman Civil law, built of common sense, became caked and afterwards yielded to a new infusion of more common sense (insidi ously introduced under the name of the Law of Nations); so the Common Law of England, builded of reason and caked by custom (precedents and forms)®, succumbed to more reason through the fiction of the King's conscience?? Æquitas (the meeting point of Law of Nature and Law of Nations) played in the Roman Reformation of law very
Village Communities, 258. 2Maine's Ancient Law, 82. 3Law of Bailments in Coggs v. Bernard (1703), Ld. Raymond, 909. “Jenk's Law & Pol. of the Middle Ages, 35-6. 5 Village Communities, 335. 6 Bryce's Studies in Hist. & Jur., 697.
It is the special business of Equity to reintroduce those considerations which have been dropped in arriving at the rules of law." Lightwood's The Nature of Positive Law, 40; and see p. 300.
much the same part as Equity in the English.1 Mr. Bryce's description of it would answer for both systems. He says
“Equity means, to the Romans, fairness, right feeling, the regard for substantial, as opposed to formal, and technical, justice, the kind of conduct which would approve itself to a man of honor and conscience"?
We are now a little better prepared for a true understanding of the Law Merchant. So far we have had various titles and we have found them to be perfectly empty of meaning-mere names and nothing there to name. How is it with the Law Merchant ?
In the present writer's opinion the amelioration and improvement of English law is attributable (apart from legislation and acknowledged fictions) to Equity, Common Counts, Public Policy and Law Merchant. Equity was a renaissance-a return to the Law of Nature, or the Law of Nations, or the Common Law (reflect on that for a moment), or Common Sense as you may choose to call it. Mansfield's tricks with the Common Counts and the Law Merchant were in reality but new and ingenious and masterful methods by which human reason of years gone by (obsolescent indeed, but caked and riveted there) was made to yield to human reason of later time. The cakes were called the Common Law, but they had ceased to represent common sense. The new human reason might also (just as properly) have been called the Common Law, but they named it Law Merchant, and people ever since have been looking for the thing, not knowing that it was nothing. Find the Law of Nature, the Law of God, the Law of Nations, the Law of Reason, the Law Universal, the Common Law, Equity-find Common Sense, and I shall have much pleasure in accepting at your hands an introduction to the Law Merchant.
Am I wrong in thus identifying the Law Merchant with these other empty names-these aliases, given by ourselves
See Maine's Ancient Law, cap. 3. ?Studies in Hist. and Jur., 581.
*Lord Mansfield was quite frank in what he did. Weaker men would have pretended some precedent. Mansfield avowed that “the gist of this kind of action is that the defendant upon the circumstances of the case is obliged by ties of natural justice and equity to refund the money.” Moses v. Macferlan (1760), 2 Burr. 1005. And weaker men ever since have been attributing Mansfield's decisions to the Common Law and the Law Merchant. Blackstone knew better and ascribes Mansfield's work to "
Natural reason and the just construction of the law” (Commentaries, Bk. III, c. 9).
for the further fooling of ourselves ? Let me at least shield myself behind Professor Burdick who says that
"Godolphin quotes with approval the statement of Sir John Davies, that the Law Merchant, as a branch of the Law of Nations, has ever been admitted,” &c.1 who quotes from Sir John Davies :
“Which Law Merchant, as it is part of the Law of Nature and Nations is universal, and one and the same in all countries of the world.” ? “The Law Merchant which is a branch of the Law of Nations."
a who quotes also from Dr. Zouch:
“ It is manifest that the causes concerning merchants are not now to be decided by the peculiar and ordinary laws of every country, but by the general laws of Nature and Nations,” 4 and who himself writes :
As early as 1473 the Chancellor had declared that alien merchants could come before him for relief, and there have their suits determined by the Law of Nature in chancery.
which is called by some the Law Merchant, which is the Law Universal of the world.” 5
But for all prose purposes we might as well speak of the Law Universal of the Universe ; for this ubiquity which people are accustomed to attribute to their own ideas is asserted for the same evidential purposes as the avatar claims of all religion-founders, and with as much verity as (we shall say) all but one of these. “The Law of Nature is binding over all the globe in all countries," said Black. stone, 6 without meaning anything in particular. Law of Nations is common to all mankind,” said Justinian," meaning nothing at all. There is "a Common Law of all mankind," said Aristotle and Demosthenes and Justinian, meaning as much. There is a “ Law of God,” said Austin
2 16. 477.
12 COLUMBIA LAW REVIEW, 477. 3 16. 478.
* 16. 477-8. • Ib. 485. In 1473 it was said by Stillington, Edward the Fourth's Chancellor, in the great case of larceny by a carrier breaking bulk, that the cause of merchant strangers “shall be determined according to the Law of Nature in the Chancery.” Foreign merchants put themselves within the king's jurisdiction by coming into the realm, but the jurisdiction is exercisable “secundum legem naturæ que est appelle par ascuns ley marchant, que est ley universal par tout le monde.” Y. B. 13 Ed. 4th 9, pl. 5. Quoted from Sir F. Pollock, 2 COLUMBIA LAW REVIEW,
28. 6 Commentaries, Introd. s. 2. 7 Institutes, Lib. I, tit. 2, s. 2.
-a veritable legal touchstone—meaning, if possible, still less. And now Professor Burdick quotes for us that there is a “ Law Merchant which is the Law Universal of the world." Would that some swift lineotype could catch this thing, and reduce its irritating omnipresence (much too big to look at) to some one geographical spot, for sixty seconds, or even less.
This Law Merchant “one and the same in all countries in the world”! And Coke and his successors after one hundred and fifty years' work at it had done little “ towards building up any system of mercantile law in England." “ The same in all countries”! And poor Mansfield in his day dining his specially qualified merchant jurymen and taking “great pains in explaining to them the principles of jurisprudence by which they were to be guided.”ı “The same in all countries”! Listen to Lord Campbell's account of Mansfield's time :
"Hence when questions necessarily arose respecting the buying and selling of goods, respecting the affreightment of ships, respecting marine insurances, and respecting bills of exchange and promissory notes, no one knew how they were to be determined. Not a treatise had been published upon any of these subjects, and no cases respecting them were to be found in our books of reports. .. If an action turning upon a mercantile question was brought into a court of law, the Judge submitted it to the jury, who determined it according to their notions of what was fair, and no general rule was laid down."
The same in all countries”!3 And Mansfield, endeav. oring “to develop a body of legal rules,” which he hoped would “commend themselves to all courts in all countries,” -so Professor Burdick tells us -- but they didn't.
If there is any one point of mercantile law more than another that would have been agreed about in Europe, it
1 Ante, p. 141.
2 Lives of the Chief Justices, III. 274. [It may be well to set over against this statement the following extract from an address delivered to the American Bar Association last summer, by M. D. Chalmers, C. S. I., and printed in The Law Quarterly Review for January, 1903: “Lord Mansfield and Mr. Justice Story, in judgments which are too well known to need citation, have emphasized the essential unity of the law merchant throughout the world ; and in more recent times, Lord Blackburn has again enunciated the rule. “There are, he says, “in some cases differences and peculiarities which by the municipal law of each country are grafted upon it, and which do not cffect other countries; but the general rules of the law merchant are the same in all countries."F. M. B.)