PREFACE. THE fundamental principles of right and equity which constitute the leading sources of Commercial Law are immutable in their essence and universal in their adaptation; yet amidst essential unity there is circumstantial variety. Owing to the wide extension of intercourse, and the wonderful progress of commerce, society is linked in such a multitudinous and intricate range of connections, that a vast variety of authoritative rules becomes necessary to meet the requirements of each nation. Whilst, therefore, the leading principles of Commercial Law are everywhere uniform, many are the municipal laws and local usages which control or modify them, and which it is necessary to know, in order to regulate aright the mercantile relations between different States. It is the object of the present work to bring these fundamental principles of the Law Merchant, and the rules which have been superadded to them in different countries, into contact with each other, so that we may profit by each other's experience, and at the same time gather materials for the attainment of solid and permanent progress in mercantile legislation. The chief advantage of such a work is the ready access it affords to the existing laws of the principal countries of the world. Other works on Commercial Law, such as Smith's or Chitty's, are confined to the Law of England. In this the field is enlarged, and the laws of foreign countries are put side by side with our own, because commerce is essentially international, and we are deeply affected by the laws and procedure of other States. Hence the distinctive title of "International Commercial Law." The science of International Law has hitherto been limited to the political relations of states in time of peace and war, but recently not a few special b2 conventions relating to commerce have been formed, such as those relating to International Copyright, Trade-marks, and Public Companies. The portion, moreover, called Private International Law contains provisions intimately affecting the interests of merchants, whilst a great branch of International Law proper consists in settling the rights of commerce in time of peace and war, which forms the subject of our introductory chapter. In the first edition of this work, the essential uniformity which exists in all the Codes and Laws of Commerce was pointed out. From the very first the Law Merchant has been held not so much a part of the municipal law of any state, as a part of the Jus Gentium, inasmuch as its chief provisions apply as well to foreign merchants as to natives: most of the usages and customs of trade have originated in a like manner in all countries, and many of the rights and duties accruing from the various mercantile transactions are founded on the dictates of natural law. What is technically called the Law Merchant is the body of laws enacted at different times by commercial nations (a). We know but little of the commercial laws of the Tyrians, Phoenicians, Carthaginians, and Assyrians. By tradition we learn that the Rhodian law acquired the highest rank, and we know that the Romans embodied that law in their legislation. Of Grecian laws we have but few distinct traces, beyond what we gather from the works of Demosthenes and other writers. The Roman law, as far as it applied to commerce and navigation (b), and indeed in all its branches, was itself a system of universal jurisprudence. The ordinances and statutes of the Mediterranean states, and of the Hans towns, especially the Consolato del Mare, the Roles or Jugemens d'Oleron, the Jugemens de Damme or Lois de Westcapelle, the Laws of Wisby, the Guidon de la Mer, and the Hanseatic Ordinances, are leading authorities in almost all mercantile countries. The famous Ordinances of Commerce and Navigation prepared by (a) See Malyne's Consuetudo vel Lex Mercatoria, or the Ancient Law Merchant, London, 1656: Molloy, De Jure Maritimo, London, 1682; Beawes, Lex Mercatoria, London, 1813; Pardessus, Collection de Lois Maritimes anterieures au xviii. siècle, Paris, 1828. (b) Dig. lib. xvii. tit. ii., Pro socio; Dig. lib. xlii. tit. viii., Quæ in fraudem cre ditorum; Dig. lib. ii. tit. xiv., De pactis; Dig. lib. xiv. tit. ii., De Lege Rhodia de jactu; Dig. lib. xliv. tit. vii., De obligat. et actione; lib. xix. tit. i., De actione emti et venditi; lib. xiv. tit. i., De exercit. actione; lib. iv. tit. ix., Nautæ, caupones, &c. ; lib. iii. tit. v., De Negotiis Gestis, &c. |