International Law Research; Vol. 5, No. 1; 2016 ISSN 1927-5234 E-ISSN 1927-5242 Published by Canadian Center of Science and Education The Strange Death of the Law Merchant Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: April 11, 2016 Accepted: May 14, 2016 Online Published: June 11, 2016 doi:10.5539/ilr.v5n1p32 URL: http://dx.doi.org/10.5539/ilr.v5n1p32 1. INTRODUCTION A major problem of English commercial law, today, is that too much of it is fragmented. And, too much of it is obsolete. It belongs to the Victorian era or earlier, while we live in an electronic age. This fragmentation, and obsolescence, severely hinders the clarity, and cohesion, of our commercial law. Prior articles have pointed out areas which should be modernized - such as the law on deeds,1 guarantees 2 and bailment.3 The purpose of this article is to consider the concept of the ‘law merchant’ - a term which was always been obscure and confused 4 and to assert that it should be abolished since it has now been subsumed into the concept of ‘commercial law’.5 Indeed, this article asserts that all legislative and common law material which might have been circumscribed within the ambits of this term has either been repealed, or was obsolete, by 1898. Hence, a reference to the ‘strange death’ of the law merchant. It departed, not with a bang but a whimper. Further, this term was so obscure that it spawned - down the centuries - a number of myths and mis-perceptions. Ones which this article seeks to correct. In particular, this article asserts the following: • Meaning of ‘Merchant’. There have been, at least, 3 changes in the legal meaning of the word ‘merchant’ through its history. o In early times, it was a general expression which included anyone who bought, or sold, goods as a profession; 6 o By the 17th century, it tended to be interpreted to exclude artisans (i.e. those who made and sold their own goods), shopkeepers, fair and market traders and retailers. However, it included 7 bankers and exchange brokers (forex brokers); 1 There is no good reason, nowadays, for treating deeds (and specialities) any different to other documents in writing which are of a legal nature. See GS McBain, Abolishing Deeds, Specialties and Seals (2006) 20(1) Commercial Law Quarterly (‘CLQ’), pp 15-54 and 20(2), pp 3-28. 2 Under English law, indemnities do not have to be in writing. However, anomalously, guarantees do, as a result of the ancient Statute of Frauds 1677, s 4. Although the Law Commission recommended the abolition of this section in 1937 - and decisions such as Actionstrength Ltd v International Glass Engineering Spa [2003] 2 AC 541 have highlighted the anomalies resulting from this - s 4 has still not been abolished. See GSMcBain, Abolishing the Statute of Frauds 1677, s 4 [2010] Journal of Business Law (‘JBL’), issue no 5, pp 420-43. 3 The concept of the common carrier is redundant - not least since there do not appear to be any left and it should be abolished. See GSMcBain, Time to Abolish the Common Carrier [2005] JBL, Sept issue, pp 545-96. The strict liability imposed on hotelkeepers (innkeepers) is also not required. See GS McBain, Abolishing the Strict Liability of Hotelkeepers [2006] JBL, October issue, pp 705-55. Many common law liens are also obsolete. If they were excised, the law on the liens and pledges could be placed in legislation without difficulty. See GS McBain, Codifying Common Law Liens (2006), vol 20(4), CLQ, pp 3-47 and GS McBain, Codifying the Law on Consensual Security: Pledges and Liens (2006) vol 21(1), CLQ, pp 24-47. Further, the codification of the law on bailment could be achieved, see GS McBain, Modernising and Codifying the Law of Bailment [2008] JBL, issue 1, pp 1-63. 4 C Blackburn, A Treatise on the Effect of the Contract of Sale on the Legal Rights of Property and Possession in Goods, Wares, and Merchandise (1st ed, 1845), p 207 ‘There is no part of the history of English law more obscure than that connected with the common maxim that the law merchant is part of the law of the land.’ 5 Some Victorian texts referred to ‘mercantile law’. However, this term soon disappeared in favour of a reference to ‘commercial law.’ 6 Thus, the Oxford English Dictionary (‘OED’)(merchant) noted that the merchant originally applied to ‘a person whose occupation was the purchase and sale of marketable commodities for profit’. A treatise, Lex Mercatoria (c. 1280), regarded a ‘merchant’ as someone who ‘lives and ought to live off his movable goods and merchandise,’ see ME Basile et al (ed), Lex Mercatoria and Legal Pluralism: A Late Thirteenth-Century Treatise and its Afterlife (Cambridge, Ames Foundation, 1998), ch 5, p 8. L Roberts, The Merchant’s Map of Commerce (3rd ed, 1677), pp 6-7 defined ‘merchants’ as those who transferred goods and commodities (including coin) from one place to another. 32 ilr.ccsenet.org International Law Research Vol. 5, No. 1; 2016 o After the Municipal Corporations Act 1835 opened up trade to everyone,8 the term faded away since there was no need to distinguish a ‘merchant’ from a shopkeeper, market trader, wholesaler or retailer. Further, ‘merchant’ gilds no longer existed and banks had become subject to their own distinct regulation with ‘bankers’ not being referred to as merchants any longer. Today, the word ‘merchant’ is obsolete in normal and legal speech; 9 • Part of the Common Law. One of the abiding myths concerning the law merchant is that - in early times - it was distinct from the common law. However, there is no evidence of this. It was part (a branch) of the common law which, itself, is a synonym for the ‘common customs’ of the realm. The customs of merchants (a more modern description would be ‘business practices’) became part of the common law when they were accepted by the courts. • The writer of a legal treatise in c. 1280 made it clear that the law merchant was part of the common law. So did Coke and Blackstone. However, other writers thought that the early law merchant was distinct.10 Modern research supports Coke and Blackstone; • Further, many customs said to comprise the ‘law merchant’ were, actually, London customs. Ones which derived from Ordinances on London issued by Plantagenet kings (especially, Edward I (1272-1307)) or which were approved by Magna Carta 1215, chapter 13 which confirmed that London ‘shall have its ancient liberties and free customs [i.e. customs of freemen]. And, that all other cities, boroughs, towns and ports shall have all their ‘free customs’; • Terminology. The law merchant - in latin - was often called the consuetudine mercatorum (custom of merchants) or usus mercatorum (practice of merchants) or lex mercatorum (law of merchants) as well as consuetudo mercatoria (custom of the market) or lex mercatoria (law of the market or law merchant).11 With the supplanting of latin by English it tended to be referred to as the ‘law merchant’ or ‘law of merchants.’ By Victorian times, this term - one antiquated and ungrammatical 12 - became subsumed into references to ‘mercantile law’ or to ‘commercial law. Today, it is best described as the law of the market or commercial law’; • Phases. The meaning of the term ‘law merchant’ has altered over time, something common to many legal concepts. There may be said to be 3, relatively distinct, phases: (a) Period from c.1280 to the 17th century: Domestic concept. In this period, the law merchant was associated with a simplified legal process - including in relation to evidence - available to merchants in piepowder (fair) courts, local maritime courts and the High Court of Admiralty (‘HCA’).However, by the early 17th century, piepowder and maritime courts were in terminal decline and the HCA had had much of its jurisdiction usurped by the common law courts; (b) Period from 17th century to 1898: Part of Ius Gentium. In this period, the law merchant was 7 See, e.g. J Godolphin, A View of the Admiral Jurisdiction (London, 1661). See also Appendix A. 8 The Municipal Corporations Act 1835, s 14,‘‘And whereas in divers cities, towns, and boroughs a certain custom hath prevailed, and certain byelaws have been made, that no person, not being free of a city, town, or borough, or of certain guilds, mysteries, or trading companies within the same, or some or one of them, shall keep any shop or place for putting to show or sale any or certain wares or merchandize by way of retail or otherwise, or use any or certain trades, occupations, mysteries, or handicrafts for hire, gain, or sale within the same’ be it enacted, that notwithstanding any such custom or bye law, every person in any borough may keep any shop for the sale of all lawful wares and merchandizes by wholesale or retail, and use every lawful trade, occupation, mystery, and handicraft, for hire, gain, sale, or otherwise, within any borough’. (italics supplied) 9 Today, we tend to refer to shopkeepers, market-stall holders, retailers and wholesalers (with even the latter two words being less used nowadays). 10 This idea of a ‘distinct’ law merchant was promoted by Davies (c.1614-21) and followed by Malynes (1622), Godolphin (1661), Zouch (1663) and Molloy (1676), all in connection with the idea of a mercantile ius gentium. See 19. Its modern incarnation was promoted by MacDonell (1890) who was followed by Scrutton (1891), Holdsworth (1901) et al.