MERCANTILE LAW. Amongst the ancient Romans, trade and manufactures were accounted degrading and dishonourable employments; and what was done in that way was performed by slaves. None who had been employed in trade, or whose father had been a slave, could be chosen into the senate; and no senator, or father of a senator, could by law keep a bark above a certain small burthen, in order no doubt to prevent his engaging in commerce. The canonists likewise despised trade; and at the council of Melfi it was solemnly determined that none could exercise any traffic, nor follow the profession of the law, with a safe conscience.

These notions, however, were singular, and very different from the policy which has ever prevailed in this country. According to a law of Athelstan, if any merchant made three voyages on his own account beyond the British channel, or narrow seas, he was entitled to the privileges of a Thane; and it is specially provided by Magna Charta, (c. 30), that all merchants, unless publicly prohibited beforehand, shall have safe conduct to depart from, to come into, or to tarry in and go through the realm, for the exercise of merchandise, without any unreasonable imposts, except in time of war; and that if a war breaks out between us and another country, the merchants of that place shall be attached, but in their person only, till the king is informed how our merchants are treated in the land with which we are at war, and if our merchants are secure theirs shall be so too. Upon this Montesquieu remarks with admiration, that the English have made the protection of foreign merchants one of the articles of their national liberty; and also that the English know much better than any other people on earth how to value at the same time these three things, religion, liberty, and commerce. These, indeed, are the common rights of mankind. They are also inseparably connected together; and as liberty is the life of commerce, so commerce is in its turn the parent of many advantages, moral and physical, personal and political. Its protection and encouragement are now, therefore, an established principle of the law of nations.

Trade and commerce being thus the immediate offspring of natural liberty, the lex mercatoria, or the law of merchants, is less a branch of this or that system of municipal law, than of the law of nations, or that universal law which reason teaches all men. It is, if one may so call it, an ambulatory system of civil law, not confined to any one place or locality, but attaching to the persons of men in all their commercial transactions throughout the world; the custom of merchants being every where acknowledged, as their persons and property are by the law of nations every where protected.

Thus, not to enter here at large into all the details of mercantile law, which will be found in other parts of this work, divers sorts of writings used amongst merchants and trading people in commercial transactions, are sustained in our courts, after the example of other states, although not executed with all the formalities of common deeds. Missive letters, in re mercatoria, are valid although not holograph, and commissions from merchant to merchant, though not signed before witnesses; nor do fitted accounts amongst merchants, in mercantile matters, require the writer’s name or witnesses. But of all obligations, bills of exchange, which owe their origin to merchants, are the most favoured. The risks and accidents of trade have also caused particular favour to be extended to persons engaged therein, who have fallen into bankruptcy; provision being made by statute for their entire discharge, on their surrendering their effects to their creditors.

We find also in many parts of Europe merchant courts or judicatories vested in merchants chosen for that purpose to decide and determine in a summary way their peculiar differences. Of this sort are the guildry courts of the Scottish burghs, which are particularly approved of by statute, 1593, c. 184, as a speedy method of determining all questions between merchant and merchant, and between merchant and mariner, and are declared to have “full strength, force, and effect, according to the lovable form of judgment used in all gude towns of France and Flanders, where burses’ are erected, and specially in Paris, Roan, Bourdeaux, and Rochelle.” Particular attention, indeed, seems to have been paid in Scotland in early times, to the regulation of trade. Before the close of the twelfth century, William the Lion granted to the burgesses of Aberdeen, and the burgesses of Moray, and all his burgesses dwelling north of [7:14:591]the Grampians, the privilege of a free hanse, or mercantile association, as fully and completely as they had enjoyed the same in time past. In the southern part of the kingdom"the court of four burghs had met annually from a remote time; but in addition to this, deputies from the royal burghs south of the Spey were in 1405 appointed to meet in convention with the court of four burghs, to treat, ordain, and determine in all things concerning the utility of the commonweal of the burghs, their liberties and court. The disadvantage, however, of two contemporary assemblies in a country so limited in extent as Scotland, which had also now become a consolidated kingdom, with one common interest, appears to have been quickly felt; for by statute 1487, c. 111, deputies from all the royal burghs, “baith south and north,” were appointed to meet in convention, not with the court of four burghs, as before, but by themselves, yearly, to commune and treat upon the welfare of merchandise, the good rule and statutes for the common profit of the burghs, and to provide remedy for all skaith and injury sustained within burghs. Since this enactment, the burghal parliament, or convention of burghs, has continued to our own time.