From lex mercatoria to commercial law [1 ed.] 9783428517077, 9783428117079

Citation preview

From lex mercatoria to commercial law

Comparative Studies in Continental and Anglo-American Legal History Vergleichende Untersuchungen zur kontinentaleuropäischen und anglo-amerikanischen Rechtsgeschichte

Herausgegeben von Helmut Coing (t), Richard Helmholz, Knut Wolfgang Nörr und Reinhard Zimmermann

Band 24

From lex mercatoria to commercial law Edited by

Vito Piergiovanni

Duncker & Humblot · Berlin

Bibliografische Information Der Deutschen Bibliothek Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar.

Alle Rechte, auch die des auszugsweisen Nachdrucks, der fotomechanischen Wiedergabe und der Übersetzung, für sämtliche Beiträge vorbehalten © 2005 Duncker & Humblot GmbH, Berlin Fremddatenübernahme und Druck: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0935-1167 ISBN 3-428-11707-7 Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706 θ

Internet: http://www.duncker-humblot.de

Table of Contents Vito Piergiovanni

Introduction

7

Daniel R. Coquillette

"Mourning Venice and Genoa": Joseph Story, Legal Education and the Lex Mercatoria

11

Albrecht Cordes

The search for a medieval Lex mercatoria

53

Charles Donahue, Jr.

Benvenuto Stracca's De Mercatura: Was There a Lex mercatoria in Sixteenth-Cen-

tury Italy?

69

Riccardo Ferrante

Codification and Lex mercatoria: the maritime law of the second book of the Code de commerce (1808)

121

Maura Fortunati

The fairs between lex mercatoria and ius mercatorum

143

Knut Wolfgang Nörr / Kerstin Schlecht

Zur Entwicklung der Schiedsgerichtsbarkeit in Deutschland: Gesetze und Entwürfe des 19. Jahrhunderts 165 Antonio Padoa-Schioppa The Genoese commenda and implicita in a Discursus by Casaregis

183

Vito Piergiovanni

Genoese Civil Rota and mercantile customary law

191

James W. Shephard The Rôles d'Oléron : a lex mercatoria of the Sea?

207

Alain Wijffels

Business Relations Between Merchants in Sixteenth-Century Belgian PracticeOrientated Civil Law Literature

255

VITO PIERGIOVANNI

Introduction The series of Comparative Studies in Continental and Anglo-American Legal History , which hosts this volume, came into being through the endeavour of Helmut Coing and Knut Wolfgang Nörr (still the series editor). The intention was to establish a linkage - indeed, to build a bridge - between two legal cultures with much to discuss, in the conviction that historians can make an invaluable contribution to the dialogue. In keeping with this scientific intent, this book on the history of the lex mercatoria has been conceived as an almost obligatory intervention in a debate where epistemology and disciplinary boundaries are held in relatively scant consideration. From this methodological perspective, it should be stressed that the book contains studies by legal historians of diverse backgrounds and cultures, although each of them is endowed with thorough knowledge of historiographical tools as applied to law. In view of the manner in which the debate on the lex mercatoria has developed in the past and is being conducted today, the intent of this introduction is to lay claim to competence and professionalism. Indeed, if I were asked to sum up the contents and overall significance of the articles in this book, my reply would be that they constitute a serious and methodological plea for the direct use of the legal sources, and an invitation to reason on the basis of the information that those sources furnish. The literature on the lex mercatoria is a curious melange of medieval and modern legal history, commercial law, public and private international law, and comparative law, with a confusion of chronological levels and thematic juxtapositions between the present and the past. The overt purpose of many of these works is to give a reading to history, and to find in history, whatever best responds to contingent needs and to the particular ideology being propounded. A matter for discussion, as well as being a potential cause of further confusion, is the evolution that the legal sources are currently undergoing in the European Union. The temptation to establish connections on the basis of history and ancient juridical traditions is very strong; indeed, it is well-nigh irresistible. Scholars of law and certain historians take the formative stages of commercial law as their points of departure for reflection on the ancient and contemporary history of the lex mercatoria. In some cases, this reflection is conducted in a manner entirely ancillary to current law. In others, it makes ideology-driven use of the

8

Vito Piergiovanni

history of laws, legal science, and norms to buttress specific interpretations of both law and history, or to ground them upon tradition. Often evident in the literature on the lex mercatoria is an intersection between two levels of discussion and argumentation: the former relative to the past, the latter to the present. Yet in both cases it is above all the future that the authors have in mind. For the proponents of the recovery of experiences from the past, postulating a systematic legal order signifies emphasising, in Europe, the unifying effect of Roman law both on the Continent and in England. The implication that follows from that postulate is that the future must be conditioned by this tradition of unity and universalism. I have said that the legal historians contributing to this volume have diverse cultures and backgrounds. Yet the feature shared by their studies is a determination to unmask every attempt to make improper use of the sources of more ancient history. As regards the lex mercatoria , accurate knowledge of the evolution of the law on trade and maritime and terrestrial traffic may be of assistance to the legal scholars of the twentieth and twenty-first centuries when they address the problems raised by the internationally-oriented evolution of legal and economic systems. Moreover, documentation from the past may be essential for the development of criteria with which to conduct better appraisal of the current situation of the theory and practice of commercial law. Since the nineteenth century, and beginning with Levin Goldschmidt and his Universalgeschichte , legal historians have believed it possible to identify distinctive and unifying features of commercial law, and they have produced profound analyses on the matter, not only legal but also political and economic. In the mercantile field, the use of special conceptual and linguistic parameters has had to reckon with the legal and institutional context of the period in question. The custom-based practices of business raised coordination problems when they were to be applied in complex settings. Local and national institutions reacted to the imposition of external models which encouraged the development of a business community extraneous to political and economic control. The national legal sources tended to become the sole frame of reference as they incorporated the rules on mercantile customs, and a relation was historically established between these different levels of legality that became, according to the situation, one of either cooperation or conflict. Given that the contributors to this book are legal historians, they have naturally chosen to draw on the sources of ancient mercantile law for analysis and reflection. Their studies explore well-founded historical evidence across a broad chronological time-span from the Middle Ages until the nineteenth century, and across institutional settings different both politically and operationally. A range of themes are addressed. They either directly concern the existence of lex mercatoria , as in

Introduction

9

the study by Cordes, or they relate to it through such topics as contracts, notably the commenda (Padoa Schioppa), or courts - instances being the Rota Civile of Genoa (Piergiovanni) or the Court of Antwerp (Wijfells) - the customary law of fairs (Fortunati), or that of the sea comprised in the Roles d' Oleron (Shephard), or Napoleonic codification (Ferrante), or nineteenth-century German legislation (Nörr and Schlecht), or the mercantile jurisprudence of Benvenuto Stracca (Donahue), or, finally, the relationship of lex mercatoria with legal education as personified by Story, that most versatile of jurists (Coquilette). As the editor of this book, it is not my task in this introduction to enter into the merits of the interpretations and ideas put forward by the various contributors, especially because that they are not always in agreement. I merely point out that the book places in dialectic relation studies which, at different levels and with different outcomes, address the historical problems of the lex mercatoria from the point of view of the sources. There emerges from this arrangement - very substantially and somewhat unexpectedly - the central doctrinal importance of the common law as evidenced by Stracca's work and Belgian jurisprudence. Although the function and circulation of the common law are certainly not geographically circumscribed, one frequently observes, whenever an attempt is made to unduly extend the confines of ius mercatorum, that the only universal bodies of law known in the historical tradition since the Middle Ages have been canon and imperial law. Closely connected with the themes just mentioned is the relationship between substantial law and procedural law within the lex mercatoria. This is another topic which almost all the studies in this book address, beginning with medieval examples and concluding with commercial arbitration in German legislation. A final consideration concerns the fact that the majority of the studies deal with a branch of mercantile law which acquired its autonomy only in the late eighteenth century. I refer to maritime law, the substantial presence of which in this book prompts reflection on its function as an 'engine' of practice and legal theory. This will require re-examination of the history of medieval ius mercatorum in its entirety and assessment of whether, and to what extent, it originated in maritime trade. This is not the only problem to address, however. Almost all the authors urge careful examination, using new sources, of the many aspects of the history of the lex mercatoria that are still controversial or unclear. It is my hope that this book will take a step forward in this direction, and for this reason as well, I wish to express my gratitude to all the authors for their valuable and expert contributions. Vito Piergiovanni , University of Genoa

D A N I E L R. C O Q U I L L E T T E *

"Mourning Venice and Genoa":1 Joseph Story, Legal Education, and the Lex Mercatoria Joseph Story ( 1 7 7 9 - 1 8 4 5 ) has attracted much scholarly attention. But this attention has been largely focused on his judicial career and his politics. Story today is remembered for being, in Newmyer's words, a "statesman of the republic," a leading symbol of the transition from colonial rule to mature self-government. 2 A t age 32, Story was appointed to the Supreme Court, the youngest appointment in history. His 34 years on that Court resulted in some most memorable opinions and dissents, including Swift v. Tyson in 1842. 3 And it was certainly true that Story became the very archetype of elitist political opposition to Thomas Jefferson and, later, to Jacksonian democracy. But my thesis is that Story's judicial and political career, which has attracted all this scholarly attention, was actually the most transitory aspect of his ultimate influence on America and American law. In particular, Story's old Republicanism, and most of his constitutional jurisprudence, is "Gone with the Wind." Far more persistent and, in the end, far more significant has been * I am most indebted, as always, to my research assistants: Michael Hay den, Boston College Law School '04, Charles Loeffler, Harvard College '00, and Susannah B. Tobin, Harvard Law School '04, and to Brendan Farmer, Editorial Assistant to the Monan Professor, Boston College, and David R. Warrington, Librarian for Special Collections, Harvard Law School. Special thanks is also due to the inspiration and leadership of Professor Vito Piergiovanni of the Université degli Studi di Genova, head of our Gerda Henkel Stiftung Working Group "Lex Mercatoria" and extraordinary host and friend. 1 See "Growth of the Common Law" {North American Review, 1825), The Miscillaneous Writings of Joseph Story (ed. William W Story), Boston, 1852, 262. 2 See the leading scholarly biographies of Story, R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, 1885), xv (Hereafter, "Newmyer"); Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court (New York, 1971); Henry S. Commager, "Joseph Story" in H.S. Commager, Gaspar Bacon Lectures on the Constitution of the United States, 1940-1950 (Boston, 1953). Most recent writing focuses on Story's constitutional jursiprudence. See, for example, James McClellan, Joseph Story and the American Constitution: A Study in Political and Legal Thought (Norman, Oklahoma, 1971). For a penetrating critical analysis of the limitations of McClellan and Dunne, see Morton 7. Horwitz, "The Conservative Tradition in the Writing of American Legal History," 17 American Journal of Legal History (1973), 275. For a relatively positive view of Newmyer's efforts, see Mark Tushnet, "The Republican Synthesis and Judicial Biography: Newmyer's Supreme Court Justice Joseph Story," 4 American Bar Foundation Research Journal (1985) 909.

3 41 U.S. (16 Pet.) 1 (1842).

12

Daniel R. Coquillette

Story's philosophy of legal education and its corollary ideology of American legal culture. Central to that philosophy and ideology was Story's lifelong fixation with commercial law and the lex mercatoria.

Justice Joseph Story (1779-1845) From an engraving owned by the family

I. Story's Youth in Salem Joseph Story's Salem home and law office was recently put up for sale. It is a magnificent brick mansion, overlooking Salem Common. It has 14 bedrooms, 14,000 square feet and parking for 8 cars. There is not one, but three Presidential bedrooms, where Presidents Monroe, Madison and John F. Kennedy all slept - as well as the bedrooms of Marquis Lafayette and Chief Justice John Marshall. You might think all of this is a bit of a bargain for only $ 900,000.4 But Salem today is a sleepy, rundown town, just outside the Boston commuter belt. There are not even 4 See "Historic Salem Home on the Market," Boston Globe, Dec. 16, 2000, El. (Contact Taché Real Estate, 208 Derby Street, Salem, MA 01970.)

Joseph Story, Legal Education, and the Lex Mercatoria

13

many fishing boats in its extraordinarily beautiful and protected deep water harbor. But still standing are the great piers. One of these - Derby Wharf - is over one half mile long. Also remaining is the magnificent U.S. Custom House. They are the last remnants of a time when Salem was one of the busiest harbors in North America, the "Genoa of America," with trade routes extending to Europe, China, Sumatra, Indonesia, India and Japan - indeed to every corner of the Earth. In Hawaii, where the Salem merchant ships stopped for refurbishing, the natives believed that "America" was the name of a town in a country called "Salem."5 As a young man, Story grew up in the nearby port of Marblehead. (Its tiny harbor was notorious as a center for privateering.) At the usual young age of 15, he went off to Harvard College, and then went directly, four years later, to study law as an apprentice in Salem with Samuel Sewall, a well-connected Congressman, and with Samuel Putnam, a practicing lawyer with a genuine intellectual interest in legal theory and a good library. The port hummed with international commerce - at least when not blockaded by the British or embargoed by American trade policy. Not surprisingly, Story supplemented his Coke on Littleton and Blackstone \s Commentaries with the more cosmopolitan works of Grotius, Puffendorf, and Vattel.6 When Story opened his own law office in Salem in 1801, at the corner of North and Main Streets, he attracted an immediate law practice. His chief clients, the Crowninshields, were the leading ship owners of Salem - and good Republicans (as opposed to their rivals, the Federalist aristocracy). Story's practice focused on adopting English legal doctrines, particularly drawn from Lord Mansfield's great commercial decisions, to the burgeoning trade of the new American Republic; to Salem, in particular; and to the mercantile affairs of his clients, the Crowninshields, most especially.7 When Jacob Crowninshield's place in Congress became available, Story, at age 29, was nominated to fill it, and in 1811, at the age of 32, 5 See, generally, K. D. Gross , "The Maritime History of Salem" in Salem: Cornerstone of a Historic City (Beverly, Mass. 1999), 5 - 3 3 ; John W. Tyler, Smugglers & Patriots: Boston Merchants and the Advent of the American Revolution (1986), 211-251. 6 Newmyer, 41. 7 I am currently in the process of reviewing many of these early records with the able assistance of my research assistant, Mr. Charles Loeffler. Most of Mr. Story's papers are at the Massachusetts Historical Society, but some of the most important, including manuscript copies of key treatises and his law commonplace book, are at Harvard. See Massachusetts Historical Society, keyword, "Story, Joseph," 307 entries, particularly P-424 (micro-film, "Story, Joseph, 1779-1845") correspondence concerning law practice, legal education and Harvard Law School with, among others, John H. Ashmun, Edward Everett, David Hoffman, James Kent, John Marshall, John Pitman, William W. Story, Bushrod Washington, and Daniel Webster. See also the Cushing Family Papers Π (1773-1857); the John Brazer Davis Papers (1819-1832); the John Gallison Diaries (1807-1820) [Microfilm P-153]; the James Jackson Papers (1787-1867); the Charles Pinckney Sumner Papers (1776-1839); and the White Family Papers (1781 -1890). The latter papers give a particularly good view of business practices and legal problems among Salem merchants, including promissory bills and notes, structuring of loans, insurance disputes (most notably for seizure of ships in Gallipoli) and leases and purchase and sale of ships. Some of these disputes actually involved Story, who

14

Daniel R. Coquillette

he was elected Speaker of the State House of Representatives. Between 1806 and 1812, Story argued 35 cases before the State Supreme Judicial Court, again all before he was 32. His brilliance as an orator and as a legal advocate became obvious to all around him. In 1812, "quite unexpectedly," in Story's recollection, but - in fact - through the influence of Story's friendship with President Madison, Story was appointed to a vacant seat on the Supreme Court. (No fewer than 3 others had been offered the seat, and declined. Levi Lincoln, the first choice, had failing eyesight; Alexander Wolcott, a dim bulb by all accounts, was refused confirmation by the Senate, and John Quincy Adams, the third choice, turned it down because he wanted to be President.) This extraordinary appointment was achieved despite the determined opposition of the ex-President, and fellow Republican, Thomas Jefferson, who called Story "too young" and a "pseudo-Republican" and a "Tory." 8 Although he continued to live in his house in Salem until 1827, Story's national career as judge and politician was launched.

I I . Story at Harvard Law School At Harvard Law School, the landscape is covered with Story memorabilia. There is a Story Hall, a Story Professorship (currently held with distinction by Daniel Meitzer), a portrait prominently displayed over the Dean's desk, three other portraits of Story at various ages, and a very large marble statue of Story at the was a member of the family by marriage, and they certainly describe the world in which Story practiced law. Harvard has some particularly important story manuscripts and letters to Story concerning Harvard Law School and legal education. See, for example, the manuscript copy of Story's work on conflict of laws (1841) (HU ARS 7776); his manuscript commonplace book (1801 1815) (HU ANR 4919); his memoranda on Supreme Court arguments (1831-1832) (HU AKN 1332); his notes on criminal law (1805 -1845) (HU BOU 2367); his correspondence on promissory notes and the manuscript for his treatise on the same (HU AKN 1701); manuscripts relating to his positions at Harvard, as an Overseer and Fellow of the Corporation (HU AC 79282). There are also important letters from John Quincy Adams (1823, 1829) as Story's inauguration as Daine Professor of Law (HU AKE 1847); and letters from John Marshall, James Kent, and Roger Brooke Taney (HU AKG 0471; HU AKG 0134; and HU AKU 9822). Key Story letters, hitherto uncatalogued, are also coming to Harvard from the generous bequest of Henry Ess. I am deeply indebted to Peter Drumey at the Massachusetts Historical Society and David Warrington at Harvard Law School for their constant, invaluable and patient assistance. 8 See Newmyer, 70. See also H. Jefferson Powell , "Joseph Story," Supreme Court Justices: A Biographical Dictionary (ed. Melvin, Urofsky, 1994), 435-444; R. Kent Newmyer, "Joseph Story," The Oxford Companion to the Supreme Court of the United States (ed. Kermit Hall, 1992), 841-844; Henry Steele Commager, Richard B. Bernstein, "Joseph Story," vol.4, Encyclopedia of the Constitution (ed. Leonard Levy, 2000), 1782-1786; Claire Cushman, "Joseph Story," The Supreme Court Justices (1789-1993) (1993), together with the sources cited in note 2, supra.

Joseph Story, Legal Education, and the Lex Mercatoria

15

front entrance, sculpted by his son. The statue was originally intended for the famous Mt. Auburn Cemetery, which Story helped to found, but was ultimately excluded because it was too grandiose. Harvard students believe rubbing the protruding left foot of Story's statue will bring good grades. Despite all this, Story did not go to Harvard Law School or, for that matter, any law school. He was trained the way almost all American lawyers were trained before 1784, by apprenticeship to practicing lawyers. 9 A very few Americans, usually wealthy young men from the South (particularly South Carolina, Virginia and Maryland), attended the Inns of Court in London. 10 And law was taught to undergraduates as a humanistic study at colleges like Yale (Ezra Stiles' "four lectures"), Pennsylvania (James Wilson's lectures), Columbia (James Kent's lectures), William & Mary (the lectures of George Wythe and St. George Tucker). 11 These emulated the lectures of William Blackstone at Oxford, who was supported by the endowment of the Vinerian Chair in 1756. (Both Blackstone's lectures and his position were radical departures from the traditional civilian, Roman Law curriculum in the ancient British universities.) But, in America, none of this was intended to substitute for professional training, and that training was done through apprenticeship. Even the first American law school, the Litchfield Law School, was an extension of a successful apprenticeship program. This program was originally run in the law firm of Judge Tapping Reeve in Litchfield, Connecticut, with the assistance of his law associates, James Gould and Jabez Huntington. Founded in 1784, this school achieved extraordinary success. It educated, before its demise in 1833, sixteen federal senators, fifty Congressmen, ten governors, five Cabinet members, two Supreme Court Justices, eight state chief justices, thirty-two other justices of state high courts. 12 Thanks to many surviving records and student notebooks, the 9 I am currently completing a large project, supported by the Colonial Society of Massachusetts, examining the legal papers of the patriot Josiah Quincy, Jr. (1744-1775). These shed new light on the apprenticeship system. See the 1996 Donahue Lecture, Daniel R. Coquillette, "First Flower-The Earliest American Law Reports and the Extraordinary Josiah Quincy Jr. (1744- 1775)," 30 Suffolk University Law Review 1 (1996). See also the papers of John Adams (1735-1826), Legal Papers of John Adams (L. Kinvin Wroth & Hiller Β. Zobel, eds., 1965). ίο See Ε. Alfred Jones, American Members of the Inns of Court (1924) IX-XV. 11 See Richard S. Eckert, The Gentlemen of the Profession: The Emergence of Lawyers in Massachusetts 1630-1810 (1991), 144-316; Robert Stevens, Law School (1983), 3 - 3 4 ; Daniel H. Calhoun, Professional Lives in America: Structure and Aspiration (1750-1850) (1965), 59-87; Daniel R. Coquillette, "Justinian in Braintree: John Adams, Civilian Learning, and Legal Elitism, 1758-1775" in Law in Colonial Massachusetts (Coquillette, Brink, Menaud, eds., 1984), 359-418. See also Lawrence M. Friedman, A History of American Law (2d ed., 1885), 31-104, 303-333; Charles Warren, A History of the American Bar (1911), 157-208; Anton-Hermann Chrost, The Rise of the Legal Profession in America (1965), vol.1, 3 - 5 4 ; Arthur Sutherland, The Law at Harvard (1967), 1 - 3 1 (hereafter, "Sutherland"). 12

See Sutherland, supra, 27-28. "In it's forty-nine years of life it had about 1015 students in all; of these perhaps 300 or so came during the years before 1800." Id., 28.

16

Daniel R. Coquillette

Litchfield curriculum and pedagogy is well known. It appears to be simply an extension of a law office apprenticeship, albeit in a particularly well run and cultured law office. 1 3 When a wealthy, retired planter and slave owner, Isaac Royall (1718-1781), left a bequest in 1781 to Harvard endowing "a Professor of Laws in Said College or a Professor of Physics and Anatomy" he certainly had in mind the Vinerian's Professorship at Oxford, and probably the "humanistic" lecture courses at the other American colleges mentioned above. But Royall chose to retire in Medford, Massachusetts, safe from the disease and risk of his Antigua plantations, a switch on today's retirement practices. (His house, with its intact slave block for the domestic slaves Roy all brought with him, still stands.) The outbreak of the Revolution forced Royall, a loyalist, into exile, and there were substantial delays in realizing

See also Marian C. McKenna, Tapping Reeve and the Litchfield Law School (1986), 183197. 13 John Langbein at Yale Law School is engaged in major research involving early American legal education in general, and the Litchfield School, in particular. I have had the great pleasure of seeing two of his unpublished draft articles, "Blackstone, Litchfield, and Yale: The Founding of Yale Law School," given as a paper at Harvard Law School on October 12, 2002, and "Law School in a University: Yale's Distinctive Path in the Later Nineteenth Century." These two papers have become chapters in a distinguished book about Yale Law School. See Historical the Yale Law School (A.T. Kronman, ed. New Haven, 2004) pp. 17-74. In addition, Lynne Templeton Brickley has also been engaged in fundamental research on the Litchfield Law school. Her exhibition as Project Historian for the Litchfield Historical Society, "The Noblest Study, The Legacy of America's First School of Law," recently won the Wilbur Cross Award. Karen Beck, Curator of the Rare Book Room at Boston College Law Library, is also engaged in research on early student notebooks from Litchfield and elsewhere. See Karen S. Beck, "One Step at a Time: The Research Value of Law Student Notebooks," 91 Law Library Journal (1999), 29; and her exhibit catalogue, "Notable Notes: A Collection of Law Student Notebooks" (1999). See also David Warrington's talk to the 1992 Annual Meeting for the American Society for Legal History, "Under-Utilized Sources for Research in Legal History: Law Student Notebooks" (unpublished M.S.). Alfred Z. Reed, in his first report on legal education for the Carnegie Foundation, Training in the Law (1921), calculated the rough percentage of subject matter in the curriculum of Blackstone at Oxford (1765-1769), Litchfield in 1794, Litchfield in 1813, and Harvard between 1835-1838, at the height of Story's reforms. If one combines Story's specialties, the Lex Mercatoria, Contracts and Equity, the contrasts are striking. Id., 454. Blackstone devotes about 4% to the topics; Litchfield, 35-36%, and Harvard 54%. Conversely, Blackstone devotes about 46% to Criminal Law and Real Property combined, Litchfield, about 18%, and Harvard, 7% (no criminal law!). Reed's calculations do show that Litchfield's curriculum incorporated far more law merchant and contract law than Blackstone, and much less criminal law, so there was some anticipation of the Harvard developments. Id., 54. See also Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill, 1983) 48, n.37. My study of Josiah Quincy's LawCommon Place (circa 1763), described at page 5, n.9, supra, describes the content of classical American legal apprenticeship before Litchfield was established. It, too, was far more oriented to commerical law than Blackstone's lectures, so the commerical law emphasis in America may predate Litchfield. The new transcription of Quincy's legal papers, including his Law Reports (1761 -1772), will be published by the University of Virginia Press as part of the Colonial Society of Massachusetts series in about two years.

Joseph Story, Legal Education, and the Lex Mercatoria

17

the estate when he died in England in 1781. It took Harvard until 1809 to get all the money in hand, and by that time new ideas were in circulation. A professorship in law, rather than in medicine, was endowed, and it was to be the cornerstone of a "Litchfield" style professional school, rather than part of the regular college curriculum. This new school, eventually to be known as the Harvard Law School, was opened in 1817, six years after Story's appointment to the Supreme Court. 14 The school was to prove a disaster. The first Royall Professor was a "good-natured" but "lazy" man, Isaac Parker, who was concurrently Chief Justice of the Massachusetts Supreme Judicial Court. His curriculum and teaching style was copied on Litchfield. His successor and colleague, Ashael Stearns, proved to be worse. By 1827, student enrollment had dropped from about twenty to only one student.15 That year, a wealthy donor, Nathan Dane, made a proposal to the Harvard President, Josiah Quincy. If Joseph Story could be persuaded to teach at the new school, he would endow a second chair, the Dane Chair. Dane knew Story well, and thought the dynamic, young judicial leader was just what was needed. Besides, Story had become a Harvard Overseer in 1823, and a member of the then allpowerful Harvard Corporation in 1825. Story was also a close friend of Quincy, a relatively powerful president of Harvard who took over in 1828. In many ways, Story was the ultimate "insider" at Harvard. But Story was skeptical at first. In addition to sitting in the Supreme Court in Washington, he also rode "circuit," hearing federal cases throughout the Northeast. Who would look after the students day to day? In the end, Story insisted on the additional appointment of an experienced proprietary school teacher named John Ashmun, who ran a successful "Litchfield" type proprietorial school in Northhampton, Massachusetts. Ashmun would run the school "day to day." Ashmun's appointment necessitated the firing of the unfortunate Ashael Stearns. This was done in a particularly unprincipled way, despite Stearns having received an honorary doctorate in jurisprudence from Harvard only four years before. 16 14 See Charles Warren, History of the Harvard Law School (1908), vol.1, 278-370; The Centennial History of the Harvard Law School (1817-1917), 1 - 9 ; Sutherland, supra, 3 2 91. 15

Sutherland, 85. According to Story, writing in his will of 1842, "When I came to Cambridge [in August 1829] ... there had not been a single law student there for the preceding year." Id, 85. Ashael Stearns had begun to shift the pedagogy from the "lecture" format used at Litchfield, to what Langbein describes in his two most insightful papers as "the text-andrecitation teaching format." See Langbein, "Law School in a University: Yale's Distinctive Path in the Later Nineteenth Century," supra, note 13. Stearns's Report to the Harvard Overseers in 1826 emphasized "[r]ecitation and [examination on several of the most important text books, such as Blackstone's Commentaries^] Cruise on Real Property, Saunders on Uses, Fearne on Remainders, etc." See Langbein, supra, note 13,; Charles Wallen, History of the Harvard Law School and of Early Legal Education in America (1908, 2 vols.), vol. 1, 334 [emphasis deleted]. But Stearns's use of treatises certainly did not rival that of Story, whose Dane chair essentially required the holder to write treatises. See notes 63 and 64, supra , and accompanying text. 2 Piergiovanni

18

Daniel R. Coquillette

But the new "Story" Law School was a great success. Ashmun brought 28 students from Northhampton with him. By 1844, enrollments exceeded 156 students from 21 states, coming from all parts of the United States. In 1833, the Litchfield Law School, the previous claimant to be a "national" law school, shut its doors. Story presided over this extraordinary success as Dane Professor of Law until his death in 1845. (There was no "Dean" until President Eliot appointed Langdell in 1871.) In 1835, Story's longtime friend and ally Chief Justice John Marshall died. Jackson balked at appointing Story Chief Justice, and, in the end, appointed Roger Taney, of Dred Scott notoriety, instead.17 During Story's waning years, when both his political and judicial positions put him in an increasingly ineffective minority, it was the Harvard Law School that was his solace. As Henry Moore wrote to Charles Sumner in 1833, Story "never seems to have been happier except when at the Law School." 18 As Story himself observed, "If I do not live otherwise to posterity, I shall at all events live in my children in the law. While that endures I am content to be known through my pupils." 19 Today, Story is widely regarded - with Christopher Columbus Langdell and, perhaps, Roscoe Pound - as a transforming force at the Harvard Law School and in American legal education, generally. In Josiah Quincy's words, Story was "the real founder of the law school." 20 In particular, Story broke with the provincial insularity of apprenticeship study. Together with his peers, James Kent at Columbia, James Wilson at Pennsylvania, Francis Lieber at South Carolina and Columbia, and David Hoffman at Maryland, Story gave American legal education new 16 Charles Warren , History of the Harvard Law School, supra, vol.1, 351, 364, 413-432. "On .. .August 31, 1825, Professor Stearns was given the degree of LL.D. in distinguished company with Henry Clay, John Wickham ... and Judge Samuel Putnam . . I d . , vol.1, page 351. But by 1828 there were only four students, and the "situation was becoming desperate." Id., vol.1, page 364. It was clear that Stearns had to go, but no one was really candid with him about Dane's discussion with Quincy, and his resignation letter of April 7, 1829 was both forced and heartbreaking. See Sutherland, 86-89, where it is set out in full. Arthur Sutherland, normally a most generous and forgiving historian, was highly critical: "The three men most active in the rebirth of the Law School in the fall of 1828 and the forepart of 1829 were Story, Dane, and Quincy. Their conversations were private. Could the three have taken Stearns into their confidence, pointed out that though he had done his best, the School had not under his care become the focal center of legal 'science' of the time? Could they have given him a chance to leave with the honors of war, with him making an explanation of the pressure of public duty as district attorney, with some emeritus appointment to smooth out the rasping dismissal? ... [Stearns] must have felt disgusted and depressed by the whole business; his hard work had gone for nothing; his students had left him; his university had discarded him like an unfashionable and worn-out shoe." 17 Taney authored the majority opinion in Dred Scott v. Sandford, (1857). He corresponded frequently with Story. 18 Newmyer, 237. 19 Letter to Charles Sumner, Feb. 10, 1836. See Id., 237. 20

60 U.S. (19 How.) 393

Josiah Quincy Jr., the July 17, 1851 Harvard Phi Beta Kappa Dinner, as reported by Richard Henry Dana. See The Journal of Richard Henry Dana, Jr. (ed. R.F. Lucas, 1968), vol.2, p. 439. See also Newmyer, 239, note 7.

Joseph Story, Legal Education, and the Lex Mercatoria

19

scope and new aspirations. 21 " B y accident of personality," James Willard Hurst writes, "[leadership fell to the Harvard Law School." 2 2 Hurst was writing of Langdell, but many would say the same of Story in the generation before. " A t no time, not even in the golden age of Langdell, did one man do so much to establish the character, tone, and direction of the school." 2 3 How was this achieved? From the beginning, starting with his initial appointment to the Dane Chair in 1829, Story had a clear vision of how the new university professional education could distinguish itself both from the proprietorial schools and apprenticeships, and from the "classical" university tradition. It was a frankly elitist vision. Harvard graduates would appreciate the transcendent "dignity" of the law, do it "lavish homage," and assure its proper place in the cosmos of national and international ideas. 2 4 This perspective would forever distinguish them from the "sharp and cunning pettifogger," the "retailer of lawsuits," the "caster about forms," the "caviller upon words," or, in Burke's words, "the minister of municipal litigation and fomenters of the wars of village vexation." 2 5 ("Villages," of course, like Litchfield! 2 6 ) On the other hand, the students would be trained for actual practice in the common law courts, or for trade alone, a very different emphasis from the old civil law curriculum of Oxford and Cambridge. 21

See Robert Stevens, Legal Education in America from the 1850s to the 1980s, supra, 4 - 6 ; Charles Warren, History of the Harvard Law School, vol. 2, 47-69; Sutherland, supra, 9 2 - 139. See also Anthony Chase, "The Birth of the Modern Law School," 23 American J. Legal History 329 (1979); David S. Clark, "Tracing the Roots of American Legal Education: A Nineteenth-Century German Connection," 51 Rabeis Zeitschrift Privatrecht 313 (1987); John H. Langbein, "Chancellor Kent and the History of Legal Literature," 93 Columbia L. Rev. 547 (1993). 22 James Willard Hurst, The Growth of American Law: The Lawmakers (Boston, 1950), 261-262. See Robert Stevens, Legal Education in America from the 1850s to the 1980s, supra, 36-37. In particular, the influence on Story of David Hoffman and Francis Lieber was of the greatest importance. See page 10 ff., infra, and Paul D. Carnngton, "The Theme of Early American Law Teaching: The Political Ethics of Francis Lieber," 42 Journal of Legal Education 339 (1992). 23

Newmyer, 270. See Appendix II, supra, "Joseph Story's Academic Career (18151845)." 24 Joseph Story, "A Discourse pronounced at the Inauguration of the Author, as Dane Professor of Law in Harvard University, August 25, 1829," in Miscellaneous Writings, supra, 523, 531. 25 It should be noted that Quincy's Republicanism, as Jefferson suspected, was more indebted to Edmund Burke (1729-1797) than to Burke's frequent target, de Toqueville (1805-1859). There was no doubt in Quincy's writings that merit was the ultimate safeguard of the Republic, not democracy, a conviction skeptical of de Toqueville 's La Démocratie en Amérique (2 vols. 1835, 1840), and certainly more consistent with the elitism of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) and ultimate judicial review. Later disputes at Harvard Law School, extending well into the 1980s, have questioned the School's commitment to hierarchy and its indifference to more democratic priorities. See, for a graphic example, Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (Cambridge, 1983). 26

2*

Where the Litchfield Law School continued to operate for four more years.

Daniel R. Coquillette

20

As early as 1817, 12 years before, Story had written an important article for the North American Review, commenting on David Hoffman's seminal A Course of Legal Study (1817). 27 At all cost, Story argued, legal education had to surmount the "narrow maxims" of the past. Slavish rote learning fettered the mind. The contrasting model of "transcent dignity" was Lord Mansfield. According to Story: "Previously to the time of Lord Mansfield, there are but few cases in the reports, which are entitled to much respect, either for their interpretations of principles, or general applicability. It is to his genius, liberality, learning, and thorough understanding of the maritime jurists of the continent, of Cleirac, and Roccus, and Straccha, and Santerna, and Loccenius, and Casaregis, and Valin, and to his ardent attachment to the equitable doctrines of the civil law, that we are chiefly indebted for that beautiful and national system, which now adorns this branch of the common law. The doctrine of bailments too, (which lies at the foundation of the law of shipments,) was almost struck out at a single heat by Lord Holt, who had the good sense to incorporate into the English code that system, which the text and the commentaries of the civil law had already built up on the continent of Europe." 28

In Story's opinion, English commercial law, prior to Holt and Mansfield, suffered from mediocrity and insularity. "[F]ew were willing to listen to principles which had no authority beyond the narrow walks of Doctors' Common." 29 Likewise, it suffered from lack of an historical context. Why, for example, did modern pleadings "like a wounded snake, drag their slow length along" when "the study of the ancients would amply repay all [the student's] toil, and subserve essentially the public interests." 30 For better this than "that the current of public opinion, aided by legislative enactments, and not a little accelerated by a distaste for the prolivity of modern pleadings, may bring the science itself into disrepute and neglect."31 Better the elegance of legal history and comparative law studies than the blunt instrument of Jacksonian democracy! Story was particularly pleased with Hoffman's inclusion of "the Lex Mercatoria, " "Maritime and Admiralty Law" and "The Civil or Roman Law" in the general syllabus. Story emphasized that this was not "a scholarly diversion," but served purposes that were "almost entirely practical." 32 "What particularly pleases us is the enlarged and liberal view with which Mr. Hoffman recommends the student of the common law to a full and careful study of the Admiralty, Maritime, and Civil Law. If the note on the excellence of the civil law (p. 254) were not too long, we should gladly insert it in this place. We commend it, however, as well as his 27 See The Miscellaneous Writings of Joseph Story (William W. Story, ed., 1852), 66-92. (Hereafter "Joseph Story, Miscellaneous Writings. ") See also Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (1983), 12, n. 17; 104, n. 10. 28 29 30 31 32

Joseph Joseph Joseph Joseph Joseph

Story, Story, Story, Story, Story,

Miscellaneous Miscellaneous Miscellaneous Miscellaneous Miscellaneous

Writings, 67-68. Writings, Id., 69. Writings, Id., 85. Writings, Ibid. Writings, Id., 86.

Joseph Story, Legal Education, and the Lex Mercatoria

21

observations on the law of nations and the admiralty law, most earnestly, to all those who aspire to eminence as statesmen, or scholars, or lawyers. To Mr. Hoffman's list of books, on these subjects, we beg leave to add Heineccius's Elements of the Civil Law, according to the order of the Institutes and the Pandects, whom Sir James Mackintosh has not scrupled to pronounce "the best writer of elementary books, with whom he is acquainted on any subject." We also recommend Ferrière's Dictionnaire de Droit et de Pratique, Calvinus's Lexicon Juridicum, M. Desesules' Dictionnaire du Digeste, Ex ton and Zouch and Spelman on the Admiralty Jurisdiction, Cleric's Us et Contumes de la Mar, Emérigon Traité des Assurances, Pothier's Works, and particularly his Treatises on Maritime Contracts, Boucher's Translation of the Consolato del Mare, Peckius ad Rem Nanticum, D'Abreu sur les Prises, and though last, not least, Casaregis's Discursus de Commercio. We must now hasten to a close, although there are some discussions, which the perusal of Mr. Hoffman's work has suggested, which we very reluctantly pass over. In quitting the work, we have not the slightest hesitation to declare, that it contains by far the most perfect system for the study of the law which has ever been offered to the public. The writers whom he recommends are of the very best authority ; and his own notes are composed in a tone of the most enlarged philosophy, and abound in just and discriminating criticism, and in precepts calculated to elevate the moral as well as intellectual character of the profession. The course proposed by him is very ample, and would probably consume seven years of close study. But much may be omitted, where time and opportunity are wanting to exhaust it. We cordially recommend it to all lawyers, as a model for the direction of the students who may be committed to their care; and we hazard nothing in asserting, that if its precepts are steadily pursued, high as the profession now stands in our country, it will attain a higher elevation, an elevation which shall command the reverence of Europe, and reflect back light and glory upon the land and the law of our forefathers." 33

In his concluding paragraph, Story candidly revealed his central purpose in writing. Such legal studies validated the newly found law school at Harvard. Even "one year passed at the University" could distinguish those who "confidently hope to build a fabric of professional fame, which would carry them to the first honour of the bar" from the "patient drudge." 34 "We have another motive, besides the intrinsic value of the work, for commending it earnestly to the perusal of our readers. It will demonstrate to the understanding of every discerning man the importance, nay, the necessity, of the law school, which the Government of Harvard College have, so honorably to themselves, established at Cambridge. No work can sooner dissipate the common delusion, that the law may be thoroughly acquired in the immethodical, interrupted, and desultory studies of the office of a practicing counsellor. Such a situation is indispensable after the student shall have laid the foundation in elementary principles, under the guidance of a learned and discreet lecturer. He will then be prepared to reap the full benefits of the practice of an attorney's office. But, without such elementary instruction, he will waste a great deal of time in useless and discouraging efforts; or become a patient drudge, versed in the forms of conveyancing and pleading, but incapable of ascending to the principles which guide and govern them; or sink into a listless indolence and inactivity, waiting for the arrival of the regular period for his admission 33 34

Joseph Story ; Miscellaneous Writings, Id., 90-91. Joseph Story, Miscellaneous Writings, Id., 92.

22

Daniel R. Coquillette to the bar, without one qualification to justify the honor which he receives. One year passed at the University, in attendance upon the lectures of the very respectable gentleman, who has recently been appointed to preside over the law school there, would lay a foundation of solid learning, upon which our ingenuous and ambitious youth might confidently hope to build a fabric of professional fame, which would carry them to the first honors of the bar, and make them, on the bench, the ornaments of their country." 35

But the "honorable" experiment began to fail, and the "very respectable gentlemen," Issac Parker and Ashael Sterns, had not attracted students. Thus, Josiah Quincy and Nathan Dane turned, in real desperation, to Story. On August 28, 1829, Story delivered an "Inaugural Discourse" on taking up the Dane Chair, entitled "Value and Importance of Legal Studies." Emphasizing the primary duties of the Dane Chair, outlined by the founder, as "to deliver lectures upon the Law of Nature, the Law of Nations, Maritime and Commercial Law, Equity Law, and, lastly, the Constitutional Law of the United States," Story described these sections of jurisprudence as having an "intimate connection with the best interests of civilized society." 36 The goal of elite legal education, in Story's view, was to "suggest matter for inquiry, rather than expound principles with copiousness."37 Story continued: "It must excite, rather than satisfy, curiosity. It must illustrate by examples, rather than exhaust by analysis. It must display the foundations, rather than the size or exact proportions, of the edifice. It must, if I may venture upon such a metaphor, conduct the inquirer to the vestibule of the temple of jurisprudence; and leave to his future curiosity the survey of its magnificent halls, its decorated columns, its splendid porticos, its harmonized orders, its massive walls, its varied crypts, its lofty doors, its enduring gates, on golden hinges moving." 38

Central to this vision would be, of course, the study of the transnational law merchant. "It is the golden chain, which connects the nations of the earth, and binds them together in the closest union. It comes home to every man's business and bosom; and is as captivating by the philosophy of its doctrines, as it is commendable for its sound morals, its flexible adaptation, and its enlightened policy." 3 9 No longer will the student be confined "to the mere walks of the common law," but he will be "drawn ... to the noble studies of admiralty, maritime, and civil law, which cannot fail to open sources of knowledge of the most profound and important nature." 40

35

Joseph Story ; Miscellaneous Writings, Ibid. Joseph Story, Miscellaneous Writings, Id., 533. 37 Joseph Story, Miscellaneous Writings, Ibid. 38 Joseph Story, Miscellaneous Writings, Id., 541. 39 Joseph Story, Miscellaneous Writings, Ibid. 40 David Hoffman, A Course of Legal Study (2 n d ed., Baltimore, 1836), vol. 1, 2. (Hereafter, "Hoffman.") See "Roman and Civil Law Study in America - The Law School at Cambridge," North American Review, vol. 31, 395 ff., 1833. 36

Joseph Story, Legal Education, and the Lex Mercatoria

23

This curriculum, which Story reserved to himself to teach, symbolized Story's vision of the new professional education. Based, at least hopefully, on resources usually available to a true university, including his own endowed chair and soon, in 1834, the matchless bequest of the great Livermore library of civil and mercantile law books, 4 1 the " L a w Institute of Harvard University" would, nonetheless, be grounded in practicality. This was a practicality which, despite (or because of) Blackstone, was still unknown to the European university curriculum. Such a combination of broad, elitist learning with a firm foundation in the actual application of legal principles would, Story firmly believed, result in future generations of lawyer-statesmen. " [ I ] n these academic shades there should arise a temple, sacred to the majesty of law; where our future orators and jurists, and judges, and statesmen, might mature their genius, and deepen their learning, and purify their ambition; where future generations may approach, and read the wisdom of the law..."42 Story's law school would be no Litchfield or Northhampton proprietarial school. Rather, it would be a school for all Americans, seeking a "national comity" that "may gradually establish a nearly uniform system of jurisprudence throughout the whole civilized w o r l d . " 4 3 These were big words indeed for a school with two teachers, 28 students, no building, no spare money and, until the Livermore bequest "The mode in which, until of late, the rising generation of lawyers in this country were initiated in the mysteries of their profession, sufficiently accounts for their want of acquaintance with general jurisprudence. The lawyer's office was considered not only as the training ground, where the young soldier of Themis is to be fitted for active service by the direction and example of a veteran in his profession; but it was resorted to, both as the primary school and the university, in which the student's education was to be begun and completed. Now it is true that the office is the best, nay the only fit place for acquiring that practical information, without which the most learned general jurist makes no figure in the arena of professional labor and competition. But this nursery of practical skill is not and cannot be a complete seminary of jurisprudence. It is vain to expect, that the most able and faithful student should gain in the office that fundamental and comprehensive knowledge of the law, without which the most consummate practical discernment still retains the character of a sort of instinct, which is useful chiefly in cases of common occurrence, but never conducts to a thorough understanding of the science. The scientific student, on the other hand, never rests until he has entered into the inmost nature of the law, as well as the general character of the cases to which it is applicable, and on this account is never at a loss to discern, in any case, the accidental accompaniments and the essentials; and to distinguish between those circumstances which afford ground for argument, and those which predetermine the decision. Such a knowledge of the law, which distinguishes the scientific lawyer from the empiric, cannot be derived from the office of a successful practitioner, but it requires an ample and judicious collection of men and books, such as a well organized law-school, or a law-academy, is intended to comprise." Id. at 396. 41 Very significantly, the donor, Charles Livermore, had moved from Story's Essex County to practice law in civilian New Orleans, lately acquired by the United States in the Louisiana Purchase of 1803. See Josiah Quincy, The History of Harvard University (Cambridge, 1840), vol. ii, 423-425. 42 Joseph Story, Miscellaneous Writings, 548. 43 Joseph Story, Miscellaneous Writings, Id., 120.

Daniel R. Coquillette

24

five years later, practically no library "beyond the mere walks of the common law.(î)" 44 And what about the law of the lex mercatoria on which Story's new curriculum so strongly relied, the "noble law" which "cannot fail to open sources of knowledge of the most profound and important nature"? How real was it in the brave new Republic of 1829? The brief circulars that passed as "catalogues" during Story's dominion over Harvard Law School all had one remarkable feature. Harvard did not wish to train "mere practitioners," and the School's goals were not limited to offering "a complete course of legal education for gentlemen intended for the Bar in any of the United States," although that was surely a broad goal in a world still dominated by local apprenticeships and proprietorial schools!45 Rather, Story advertised that the School also offered "a systematic course of studies in commercial jurisprudence for merchants and men of business," including those "not destined for the bar." 46 With the aid of Mr. Charles Loeffler, my able research assistant, I am reviewing the ultimate career choices of Harvard Law School graduates during the Story era. 47 Initial results indicate that Story not only established Harvard's reputation as a law school, but as America's first national business school as well. 48 See Appendix I, attached, "Law Institute of Harvard University - Course of Study, July 16, 1838." Contemporary student accounts give us a vivid picture of how Story's vision was achieved in practice. Having taken all the "cosmopolitan" and civilian based curriculum for himself, Story relied on the hard work of his talented colleagues, first John Ashmun and then Simon Greenleaf, to cover the entire common law! Judge David Cross described how this appeared to students in the second term of 1842-43. "Story and Greenleaf were very different in temperament, in method and in speech: They seemed fond of each other, and a vein of humor would appear in each of them whenever they talked upon questions in which we knew they differed.

44 Hoffman, vol. 1, 2 (2d ed.). 45 See "A Catalogue of the Students of Law in Harvard University," Cambridge, 1845, p. 1. (Story's last year.) 46 See "Law Institution of Harvard University, A Course of Study," Cambridge, 1838, n.p. ("elementary instruction for gentlemen not destined for the bar, but desirous of qualifying themselves either for public life, or for commercial business"). See also "A Catalogue of the Students of Law in Harvard University," (Cambridge, 1836), 1 (Identical wording); "A Catalogue of the Students of Law in Harvard University," (Cambridge, 1845) (Story's last year), 1. ("also a systematic course of studies in commercial jurisprudence, for those who intend to devote themselves exclusively to mercantile business and pursuits.") 47 I owe this entire insight, and the proposed research scheme, to Charles Loeffler. 48

The Harvard Business School was only founded in 1908, sixty years later. See Jeffrey L. Cruckshank, A Delicate Experiment: The Harvard Business School, 1908-1945 (1987), 7-51.

Joseph Story, Legal Education, and the Lex Mercatoria

25

Story was enthusiastic, demonstrative and at times eloquent, quoting Latin and wandering from the text into themes entirely foreign. He was most interesting and compelled attention and admiration. Greenleaf was concise, clear, and confined every word to the subject of the lecture. Story magnified the civil Law and told us of the indebtedness of the world of law to it. Greenleaf magnified the Common Law and told us of its superiority over the Civil Law. There seemed to be a sort of rivalry of these two men as advocates, one of the Civil Law and the other of the Common Law. Each would become enthusiastic and eloquent at times on these two branches of the law, and Greenleaf at one time, as I remember it, said, in substance, in speaking of Civil and Common Law. 'There is no wrong that cannot be remedied and no right that cannot be enforced under Common Law procedure.' As I remember his words, he further said: The Common Law is Christian; It has been baptized.' He then gave instances in which it had been claimed that the only remedy was in the Court of Chancery under some principle of Civil Law, and he then pointed out how the remedy could be applied at Common Law. He was a marvel in ingenuity, clearness and logic, in developing a way of doing things in Common Law. It was interesting to listen to his remarkable skill. It seemed like explaining some difficult puzzle. I never listened to a man who in few words could make clear to us difficult and tangled problems. Greenleaf asked questions at every lecture, and they were in such a way the student must understand the subject under discussion to answer it. If the answer was incorrect, or not clear, further questions were asked, in a pleasant, agreeable manner, but the student after one such questioning never forgot to be better prepared for any subsequent lecture under Greenleaf. Story's lectures on the Constitution were, as it now seems to me, eloquent eulogies upon the men who took part in framing the Constitution of the United States, and of the men of that time who advocated different views of the provisions of the Constitution. We had text books and pages assigned for our study, but Mr. Story's lectures had very little to do with the text in the book. Occasionally Story would talk to us upon our duties as future lawyers, and he told us there was nothing inconsistent in a lawyer being learned as a scholar as well as in law. He was very emphatic in urging us to devote time to the study of Greek and Latin, and to be well furnished in literature. His eulogies were greater and more eloquent upon those who were eminent in their knowledge of the Classics as well as in law. In fact, he seemed to think that no man could be a great lawyer unless he was an expert scholar in Greek and Latin." See Charles Warren,

History of the Harvard Law School, vol. 2, 26-28.

Story's emphasis was also "on the exam." Students at the school were examined for the degree of Bachelor of Laws by reading "Dissertations" to a board of examiners, often chaired by an outsider-a practice similar to current English university examination boards. In 1820 the examiners were Justice Story, Judge Jackson, and John Lowell. Story set the following "Subjects Assigned for Dissertations": Subjects Assigned for Dissertations 1-The Rules of Descent and Distribution of Real and Personal Property by the Civil Law, the Law of England and the Law of Massachusetts.

26

Daniel R. Coquillette 2-The several injuries to which the Heir is liable in relation to his right of succession to Real Property, and the several remedies by Entry or Action which are furnished by the Laws of England and of Massachusetts. Id. 339

This comparative law emphasis, including the civil law, continued throughout Story's term as Dane Professor. How many American law students could answer the first question today?

III. Story and the Lex Mercatoria From the outset of his academic career, Story was infatuated with the idea of a transnational law merchant. According to his son, William, "as America takes to itself and naturalizes the peoples of all nations, who seek its protection, thereby creating a composite people" so Justice Story "thought that it [America] should be cosmopolitan in its jurisprudence, and embody into its law all good rules and principles, whatever might be their birthplace." 49 In Story's most famous opinion, the decision of the court in Swift v. Tyson , (41 U.S.)16 Pet. 1, 10 L. Ed. 865 (1842), he quoted Cicero: "The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burn. 883, 887, to be in a great measure, not the law of a single country only, but of the commercial world. Non erit alia lex Romae, alia Athenis; alia nunc, alia posthac; set et apud omnes g entes, etomni tempore una eademque lex obtinebit. " Id., (41 U.S.) 16 Pet. 1, at 19.

Swift v. Tyson held that a pre-existing debt constituted valuable consideration for a negotiable instrument, a view that "generally, but not universally" prevailed in American state courts. Id., 16 Pet. 1, at 22. The New York state court below, also reasoning from "the general [transnational] principles and doctrines of commercial jurisprudence," held otherwise. Id., 16 Pet. 1, at 18. Today, Swift v. Tyson is remembered, quite erroneously, for establishing a "general" federal common law, and for being reversed in this effort by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), a century later. 50 But as Laurence Tribe has pointed out, creating a federal common law was not Story's intent at all. Rather, Story believed he was applying the same law merchant looked to by the New York courts, and-indeed-all sophisticated commercial courts, but applied more correctly. "Swift, then, did not look to a source of law different from that referred to by state courts; at most, it differently interpreted the same source. The Erie opinion itself, although it over49 Perry Miller, The Legal Mind in America (1962), 106. (Hereafter, "Miller.") Miller called this a "filio-pietistic tribute." Id., 106. so Laurence H. Tribe, American Constitutional Law (1 st ed., 1978), 117-119.

Joseph Story, Legal Education, and the Lex Mercatoria

27

rules Swift, does not purport to repudiate its predecessor's unstated premise that a federal diversity court possesses the same common law power as the state court for which it substitutes. Rather, Erie corrects Swift's approach to conform with the changed realities of state common law theory and practice: the chief constitutional difficulty with Swift was not that it was necessarily wrong but that it had become anachronistic. As Erie recognizes, state courts, at least since Swift, do not truly look to a "general" law, but rather persist "in their own opinions on questions of common law." As a result, by the time of Erie, federal courts following Justice Story's precise approach in Swift had developed a body of common law which had no necessary connection with the common law of the various states. This divergence had led to "injustice and confusion." Moreover, because of common lawmaking in the diversity grant itself, and thus acted doubly unconstitutionally: not only did diversity courts develop federal common law without congressional authorization, but they proceeded without regard to the limits fixed by the Constitution's grants of legislative power." 51 But even i f Story's reputation was undeservedly damaged by the common view of the Erie case, his own contemporaries were certainly considerably more cautious about maintaining that the law merchant was, like the ius gentium of Gaius ( Institutes 1.1) or of Justinian {Institutes 1.2.1), a "law which natural reason appoints for all mankind" obtaining "equally among all nations and is called ius gentium because all nations (omnes gentes) make use of i t . " 5 2 Take, for example, David Hoffman. Hoffman's Λ Course of Legal Study (2d edition, 1830) was dedicated to Story, whose praise of the first edition was prominently featured at the front of the second. 53 And it is also quite true that one of Story's reasons for this praise was Hoffman's coverage of the law of nations, admiralty law and civil law as part of a "deep and solid foundation for judicial l o r e . " 5 4 Hoffman even dutifully inserted Cicero's "non erit alia lex Romae" quotation at the beginning of the section on "Lex Mercatoria," together with another from Chief Justice Marshall: "The Law of Merchants not being founded in the particular institutions, or local customs of any particular country, but consisting of certain principles which general convenience has established to regulate the dealings of merchants with each other in all countries, may be considered as a branch of public law - Marshall. " 55 Nevertheless, Hoffman's treatment of the "Lex Mercatoria" was very different from Story's. According to Hoffman: "The student, no doubt, will find some difficulty in ascertaining the origin, and defining the limits of the system [the lex mercatoria]. As a body of law he will, perhaps, be unable to comprehend why it should be considered a branch of the law of nations. (4 Black Com. 67) So likewise he may not agree with the learned commentator, who classes it under that part of the English Lex non scripta, denominated 'Particular Customs .' (1 Black. Com. 75) 51 Id., 118-119. 52 T. C. Sandar, The Institutes of Justinian (7 t h ed., 1883), 8. 53 Hoffman (2d ed.) 1836, vol.1, 3 - 4 . 54 Id., vol.1, 3. 55 Id., vol.1, 410.

Daniel R. Coquillette

28

By some he will find it defined as the general usages or customs of merchants in mercantile negotiations ; whilst others would have that to be the law of merchants in any place, which is the usage of that place. It is not for us, in such a work as the present professes to be, to enter much into legal discussions, or to solve for the student his numerous legal doubts. How far the lex mercatoria may be derived from the general usages of merchants of all nations, and thus far claim a place in the law of nations, as being quasi publici juris; how far general usage among the merchants of England constitutes the lex mercatoria of that country; or how far local usage may become law, or the entire system be ranked with particular customs, the inquiring student will no doubt duly inform himself. We would, however, remark that this general mode of expression, relative to the origin or limits of this system of law, is calculated to mislead the student."56

In Hoffman's analysis, the primary difference between the lex mercatoria and the common law method of proving any custom was simply procedural. "Particular," or "local" custom, i.e., "[custom] restricted within any defined limits," had to be "specially pleaded" and "tried by jury." Mercantile custom did not because "the lex mercatoria is not restricted within any defined limits, but extends over the whole realm, and operates everywhere, over certain transactions." 57 Further, Hoffman's understanding of "everywhere" took on a very national orientation, and he referred to the "lex mercatoria of any particular country, as for example England." 58 And what was the English "lex mercatoria "? "The lex mercatoria of any particular country, as for example England, may perhaps be defined, a system of principles or rules peculiarly regulating mercantile transactions, derived principally from the customs of merchants in different nations, from the usages, either general or local, of the merchants of England, which customs or usages of foreign or English merchants have been judicially sanctioned; and lastly from express legislative provision." 59

The sources cited for this very limited principle, one that clearly identifies lex mercatoria a part of a national common law, strongly supported Hoffman's more limited view. 60 And among the classic "incorporation" authorities cited, such as Edie v. East India Com., 2 Burr. 1216 (1760), Hoffman included a true surprise, Story's own edition of Charles Abbott's A Treatise of the Law Relative to Merchant Ships and Seamen (2 n d American from the 3d London ed., Newburyport, 1810) (Hereafter, "Abbott (1810)"). Written from Story's Salem office, in sight of the East India docks, and printed in the next port up, Newburyport, this was a very different kind of book from the "nobility" Story later praised. Abbott's treatise had 56 57 58 59

Id., vol. 1,415-416. Id., vol. 1,416. Ibid. Ibid.

60 Hoffman notes that "The student may consult the distinction taken in 2 Burr. 1226, 1228, Edie v. East India Com. 2 Doug. 654, end of note. 1 Ld. Raymond, 175. Pinkney v. Hall. 4 Du. And Ea. 208, 210. 6 East, 202, Par v. Anderson. 2 John. 327, Frith v. Baker. 1 Caines 43, Smith and Stanley v. Wright. Story's Abbott on Shipping, 417."

Joseph Story, Legal Education, and the Lex Mercatoria

29

but very occasional foreign references. Story's contribution? Speaking in the third person, Story observed that: "Generally the foreign authorities quoted have been stated as he found them in the Reports. In a few instances, however, he [Story] has recurred to the originals within his reach, in which he includes Valin, Emerigon and Straccha. He aspires to no other claim than that of an accurate selection from the labors of others. He wishes to be considered as in no instance expressing his own opinion; but as barely pointing out the path marked by judicial decisions or explored by elementary writers." 61

What did he add to the book? "In some few cases, he [Story] has added English authorities which were not noticed by Mr. Abbott or have been published since the last edition of his work." 6 2 Thus, Story's first treatise was a profoundly common law book, whose only "foreign" content was derived from Lord Mansfield. But there was a most remarkable change, duly noted by Hoffman, when Story became Dane Professor and got into the education business. Either on his own initiative, or at Story's recommendation, Dane included provisions urging the recipients of the Dane Chair to publish their lectures. This was, of course, an idea inspired by Blackstone, but Dane added a special emphasis on admiralty, equity, mercantile, and constitutional law, tracking exactly the priorities set in Story's 1817 review of Hoffman's A Course of Legal Study. 63, The production of academic treatises also strengthened Harvard's emphasis on a "text-and-recitation" pedagogy, rather than "Litchfield style" lectures, a shift emphasized by John Langbein in connection with the Yale Law School. 64 Appendix I sets out the earliest known Harvard "catalogue" of 1838, showing a curriculum entirely based on treatises. Rather than sit and take notes from a lecturer, the student would be required to read the starred texts, and then answer questions about the text in class. As Langbein has observed, the system "effectively transferred the responsibility for coverage from the instructor to the treatise writer." 65 In Story's case, however, the instructor and treatise writer was one and the same. The first product of Story's new, academic life, "published in the discharge of the duties belonging to the Dane Professor of Law in Harvard University," was his Commentaries on the Law of Bailments , with Illustrations from the Civil and the Foreign Law (Boston, 1832), dedication by Story to Nathan Dane as "the firstfruits of the professorship founded by his bounty." 66 Hoffman, who duly listed the book as a primary requirement in the 2 n d edition (1836) of his Course of Legal 61 Abbott (1810), χ. 62 Id., xi. 63

See notes 27-35, supra. 64 See note 13, supra. 65 John Langbein, "Law School in a University: Yale's Distinctive Path in the Later Nineteenth Century," note 13, supra. 66 Joseph Story, Bailment, (3d ed., 1843) frontis, ix.

30

Daniel R. Coquillette

Study ; abandoned all his prior cautious distinctions about lex mercatoria paen of praise for this return "to the abundant fountains of Roman l a w . " 6 7

in his

"In matters of pure reason, and the eternal principles of justice, as they have been educed by wise heads and sound hearts, we may often rely on the Roman law, and its commentators, with almost unerring confidence. No one can read without admiration, their expositions of the law of contracts, in all its numerous divisions. This is strongly exemplified in the recent very learned Treatise on the doctrine of Bailments, by Mr. Justice Story. We there perceive the riches of a highly cultivated and embellished mind, gratefully returning to the abundant fountain of Roman law, a portion of its borrowed wisdom, and paying the most willing homage to the exalted merits of Justinian, of Pothier, Domat, Vinnius, Heineccius, Ayliff, Wood, Brown, and others. Whilst his learning on the law of bailments, ranges from the year-books, down through all successive ages of the common law, he illustrates and happily enforces his doctrines by constant references to Roman law, as set forth in the distinguished sources to which I have just alluded. How much more valuable and authoritative he has thereby rendered his work, will be allowed by all, except by those (and there are such) who deem it idle, unprofessional, and even pedantic, to transcend the narrow limits of the common law, or to pursue our researches into regions, which, to them, are terra incognita, they would apply the carping objection, that the Roman law, if not authoritative, need not be referred to at all, as it would only tend to add to our already unwieldy bibliotheca legum, a mass of works accessible only to a few." But Hoffman also, quite noticeably, assigned much of the new treatise to the curriculum on comparative Roman law study, not lex mercatoria. So what was going on? A careful examination of the 36 English cases (exclusively from Douglas' and Burrow's Reports) and the 47 American cases (exclusively from the early U.S. Supreme Court reports), required for reading by Hoffman's curriculum, reveals a world far more related to Story's 1810 edition of Charles Abbott's Merchant Ships and Seamen than to Story's 1832 in Commentaries on the Law of Bailment. 6* See 67 Hoffman, vol.1, 418-419. Hoffman is quoting here from his Introductory Lectures on the Civil Law (Baltimore, 1832) 10. 68 The cases are set out in Appendix III, infra. They are primarily resolved with reliance on purely English sources, not Roman or continental law. Note the following three examples: First, Marine Insur. Co. v. Tucker, 7 U.S. (3 Cranch) 357 (1806), in which the Court held that insurance must be paid on a ship which had been captured, despite the fact that the captain had made a deviation in the journey, because the captain had still intended to dock in the same place as he had always planned. Sources in that case included the British cases Carter v. The Royal Exchange Assurance Company, Wooldridge v. Boydell, Foster & Wilmer, ley & Ryan, and Mildwood and Blakes, among many others. Second, Gracie v. Palmer, 21 U.S. (8 Wheat.) 605 (1823), in which the Court held that the common-law doctrine of bailment and common carriers is applicable to the general rights and liabilities of owner and charterer under the contract of affreightment and that the owner of a chartered ship has a lien on the cargo for freight. The only citation in the opinion was to the case Faith v. The East India Company, 4 Barnw. & Aid. 630, which the Court admired but distinguished from the case at hand. Third, Bank of Columbia v. Lawrence, 26 U.S. (1 Pet.) 578 (1828), in which the Court held that the serving on notice of non-payment on a note required due diligence but may be served at either the home or countingroom of the non-payer if those two locations are

Kew-

Joseph Story, Legal Education, and the Lex Mercatoria Appendix III, attached. A n d this was certainly true of Dane's Abridgement and all other contemporary treatises on commercial law.

31 itself,

And then there were the treatises. American editions of the traditional English treatise, such as John Bayley, A Short Treatise on the Law of Bills of Exchange , Cash Bills and Promissory Notes (1789); Stewart Kyd, A Treatise on the Law of Bills of Exchange and Promissory Notes (1790); Joseph Chitty, A Treatise on the Law of Bills of Exchange, etc . (1799) and John Byles, A Practical Compendium of the Law of Bills of Exchange, etc. (1829), not only lacked Story's civilian authorities, but his civilian doctrines as w e l l . 6 9 American authors that followed Story's

in the same town. The opinion cites the English case, Pearson v. Crallan, as well as Chitty on Bills. But see, Coolidge v. Payson, 15 U.S. (2 Wheat.) 66 (1817), in which the Court held that a letter written within a reasonable time before or after the date of a bill, describing it and promising to accept it, is, if shown to one who takes it on the credit of the letter, a virtual acceptance, binding on the promisor. Though the Court focused mainly and relied totally upon the English law in this area, it did also cite briefly to the French Code de Commerce : Ordonnance de 1673, tit. 5, art. 2. Code de Commerce, liv. 1. Tit. 8. Art. 122, in a footnote, contrasting it with English law and stating that in conclusion that "such is the law of France on this subject" (75). For the comparative analysis in this note, and in note 69, below, I am most indebted to Susannah B. Tobin. 69 There were two American editions of John Bayley's 1789 treatise in 1826 and 1836, and two American editions of Stewart Kyd's 1790 treatise in 1798 and 1800. There were no less than sixteen American editions of Joseph Chitty's 1799 treatise between 1803 and 1885, the last being, in James S. Rogers's words "a massive tome ... a two volume work running over 1,000 pages." James S. Rogers, "The Myth of Negotiability," 31 Boston College Law Review 265, 273-274, notes 10-12. John Byles' 1829 treatise became "the authority, in both England and the United States," the 26 th edition being published in 1988. Id., 274, note 13. A comparison of the citations in Story's Commentaries on the Law of Promissory Notes (1845) and in the American editions of contemporary treatises shows that Story's use of continental sources was unique both in its pervasiveness and its variety. For example, in Chapter One of Story's treatise, "Nature and Requisites of Promissory Notes," there are at least 134 citations to foreign law sources, including the Code de Commerce; Codice per lo Regno delle due Sicilie, Dell. Comm.; Commercial Code of Russia; Da Silva Lisboa Principes de Diritto Mercantil; Baldasseroni, Del Cambio; Dupuy de la Serra, Des Lettres de Change; Jousse, Comm.sur L'Ord.; Locré, Esprit, du Code de Commerce. Merlin, Répertoire, Billets; Nouguier, Des Lettres de Change; Pardessus, Cour de Droit Commercial; Pothier, De Change; Savary, Le Parfait Négociant; and Scaccia, De Comm. In contrast, the 1800 edition (second American edition from the third London edition) of Stewart Kyd's Treatise on the Law of Bills of Exchange and Promissory Notes contains no references to foreign law sources in the first chapter. Likewise, there are no foreign law references in the 1826 edition of John Bayley's Summary of the Law of Bills of Exchange, Cash Bills, and Promissory Notes. Joseph Chitty's 1854 Practical Treatise on Bills of Exchange, Checks on Bankers, Promissory Notes, Bankers' Cash Notes, and Bank Notes (the title page advertises references to the law of Scotland, France, and America) has only five references to foreign law sources in the first chapter, including Pardessus, Cours de Droit Commercial; Pailliet, Manuel de Droits Francais; Termes de la Ley, tit. Chose in action; Vin. Abr. tit. Maintenance; and Traites de Droit Civil, tit. Traité du Contrat de Change. Later chapters in Bayley, Chitty and Kyd's treatises have few if any references to continental law sources. Of the treatises contemporaneous with Story's, the one with the largest number of foreign law references (save that of Story himself) is John Byles' Treatise on the Law of Bills of

32

Daniel R. Coquillette

treatises chronologically, such as Theophilus Parsons ( 1 7 9 7 - 1 8 8 2 ) and his Treatise on the Law of Promissory Notes and Bills of Exchange (1863) and John Daniels ( 1 8 4 2 - 1 9 1 0 ) and his Treatise on the Law of Negotiable Instruments (1876), did not adopt Story's notion of a universal, civilian based law merchant, but looked to the English authorities, almost exclusively. 7 0 This was particularly remarkable in the case of Theophilus Parsons who joined the Harvard Law School faculty in 1848, three years after Story's death, and who succeeded him as Dane Professor. 71 By then, it was already clear that the treatments by Parsons and Daniel were much more grounded in common law practice. They also, as James Rogers has observed, greatly differed from Story in emphasizing negotiability. 7 2 Story's Exchange, Promissory Notes, Bank-Notes and Checks. The eighth edition, incorporating notes from the fourth American edition, is dated 1862 and contains several references to Story's influence, so it is unclear to what extent the foreign law references may have been inspired by Story's work. The first chapter of the treatise does not contain any specific foreign law references, though there is a general reference to continental codes, but the preface includes a lengthy French footnote and references to Pothier's Traité du Contrat de Change and Traité des Obligations, Dupuy de lae Serra's L'Art des Lettres de Change, and the work of M. Nouguier. The absence of foreign law references in the first chapter (and for that matter, many of the later chapters) reflects the lack of integration of foreign law with the English law cited throughout the treatise. In some of the later chapters, however, there are a few passing references to foreign law: Pothier is cited in Chapter 12; in Chapter 13, there are references to Pothier, the Code de Commerce, Nouguier 's Lettres de Change, and Pardessus's Droit Commercial. Finally, in Chapter 30, there are references to Nouguier, the Code de Commerce, the Cour de Cassation, and the Cour Royale de Paris. Byles has a separate chapter on Foreign Bills and Notes in which he honors Story's work on the conflict of laws in a footnote, but there is limited substantive reference to foreign law sources. In contrast, Story's own analysis of foreign law on promissory notes in his treatise is replete with dozens of references to foreign law sources. In use of foreign law sources, Story simply stands alone among his peers. 70 I am most indebted to my colleague, James S. Rogers, for this observation. See, generally, his masterful The Early History of the Laws of Bills and Notes (1995), particularly, pp. 210-222. Rogers observes that "To be sure, Mansfield was familiar with continental legal sources. Moreover, he, like other judges and lawyers of his era, had considerable admiration for the jurisprudential theories of writers in the natural law, jus gentium tradition, such as Grotius and Pufendorf. Mansfield explicitly drew on these sources in some fields of mercantile law, such as maritime matters. The law of bills and notes, however, was by Mansfield's time firmly established as a branch of the ordinary domestic law of England. In all of the bills cases decided during his tenure, Mansfield never seems to have cited any continental sources on mercantile affairs derived from continental sources." Id., 219 (citations omitted). For more on the potent myth life of the lex mercatoria through many centuries of English law, see M. Basile, J. Bestor, D. Coquillette, C. Donahue, Jr., Lex Mercatoria and Legal Pluralism, A Late Thirteenth-Century Treatise and Its Afterlife (1998), 123-188. 71 Simon Greenleaf, who was Royall Professor from 1833 to 1846, succeeded to the Dane Professorship on Story's death, demonstrating the prestige of the Dane Chair. Parsons joined the faculty as Dane Professor when Greenleaf resigned in 1848. See The Centennial History of the Harvard Law School (1918), 215-219, 251-254. 7 2 See James S. Rogers, "The Myth of Negotiability," supra, 281 -282 (1990). Both Parsons and Daniel were men of affairs with extensive experience in practice. Parsons was a "conspicuous success in practice" in Boston before taking the Dane Chair. See Arthur Suther-

Joseph Story, Legal Education, and the Lex Mercatoria

33

Commentaries on Bills of Exchange (1843) went through new editions in 1847, 1853, and 1860, and his Commentaries on the Law of Promissory Notes (1845) went through six later editions until 1878, but both were replaced by the more thorough and modern treatise of Parsons and by Daniels' immense (1,500 pages) two volume treatise of 1876.73 IV. Story's Judicial Opinions Of course, there were also Joseph Story's own opinions as a judge. Story's decided cases on the lex mercatoria were all after his appointment as a Supreme Court justice, since he was named directly to that court at the age of 32. At that time, however, Supreme Courts justices were also responsible for the federal "circuits," and exercised an intermediate appellate jurisdiction similar to that vested in today's federal courts of appeals. There are many reasons for examining these cases. My motivation is to see whether Story's curriculum for the Harvard Law School was consistent with the emphasis of his decided cases. My initial conclusion is that these cases certainly reflected a knowledge of civil law and cosmopolitan legal sources, but that this knowledge was used for ornamental, rather than genuine judicial purposes. The actual governing authority in these cases was largely English common law. The commercial law cited was that of William Murray, Lord Mansfield, not Benvenuto Straccha, although Story did depart from English precedents in adopting a particularly broad definition of the Admiralty jurisdiction. "Story" cases on the lex mercatoria fell into four rough categories. First, there were cases that attempted to define the admiralty jurisdiction. These were of the greatest importance, as the admiralty jurisdiction was vested in the "District Courts of the United States by virtue of the delegation of authority in all civil causes of admiralty and maritime jurisdiction." See De Lovio v. Boit 7 Fed. Cas. 398 (C.C. Mass 1815) 398-399, citing Article III, sec. 2 of the Constitution. Not surprisingly, Story took an expansive view of this jurisdiction, far more expansive than the English common law precedents. See The Draco , 7 Fed. Cas. 1032 (C.C. Mass. 1835); The Emulous , 8 Fed. Cas. 697 (C.C. Mass 1813) and, most particularly, De Lovio v. Boit, 1 Fed. Cas. 398 (C.C. Mass. 1815), supra . See also F.L. Wiswall, The Development of Admiralty Jurisdiction and Practice (1970), 29-30. To this end, Story cited the continental sources with more romanticism than accuracy, even evoking the Consolato del Mare, and, once again, citing Cicero, repeating his reference in Swift v. Tyson. land, The Law at Harvard, supra, 150. See also The Centennial History of the Harvard Law School (1918), 215-219. Daniel practiced in Lynchburg, Virginia, and was eventually elected to both the United States Congress and the Senate. See James S. Rogers, "The Myth of Negotiability," supra, at 281. 73 See id., at 281-282. 3 Piergiovanni

Daniel R. Coquillette

34

"The language of the constitution will therefore warrant the most liberal interpretation; and it may not be unfit to hold, that it had reference to that maritime jurisdiction, which commercial convenience, public policy, and national rights, have contributed to establish, with slight local differences, over all Europe; that jurisdiction, which, under the name of consular Courts, first established itself upon the shores of the Mediterranean, and, from the general equity and simplicity of its proceedings, soon commended itself to all the maritime states; that jurisdiction, in short, which, collecting the wisdom of the civil law, and combining it with the customs and usages of the sea, produced the venerable Consolato del Mare, and still continues in its decisions to regulate the commerce, the intercourse, and the warfare of mankind. [Zouch, ch. 1, p. 87, &c.; Seiden ad Fletam, cap. 8, s. 5; Rob. Collect. Marit. 105, note; Le Guidon, ch. 3; 1 Emer. 21] Of this great system of maritime law it may be truly said - 'Non erit alia lex Romae, alia Athenis, alia nunc, alia posthac; sed et omnes gentes, et omni tempore, una lex, et sempiterna et immortalis, continebit'." [Cicero, Frag d. Repub. Lib. 3 (edito Boston 1817, ton. 17, p. 186).] De Lovio, supra, at 398-399.

In rejecting the English law largely curtailing the Admiralty to prize cases and genuinely overseas contracts, Story did follow the dictates of his 1838 curriculum, which envisioned a national federal law of commerce broadly applied in federal district courts by virtue of an expanded Admiralty jurisdiction. 74 A second important category was Story's Supreme Court opinions on commercial law. See Raborg v. Peyton, 15 U.S. 385 (1817); Mandeville v. Welch, 18 U.S. 277 (1820); Nicholls v. Webb, 21 U.S. 326 (1823); Sebree v. Dorn, 22 U.S. 558 (1824); Mills v. Bank of the United States, 24 U.S. 431 (1826); Bank of United States v. Dandridge, 25 U.S. 64 (1827); Townsley v. Sumrall , 27 U.S. 170 (1829); Venable v. Bank of the United States, 27 U.S. 107 (1829); Bank of the United States v. Carmeal, 27 U.S. 543 (1829); Mandeville v. Riggs, 27 U.S. 482 (1829); Tiernan v. Jackson, 30 U.S. 580 (1831); United States v. State Bank of North Carolina, 31 U.S. 29 (1832); Bank of the United States v. Hatch, 31 U.S. 250 (1832); Union Bank of Georgetown v. Magruder, 32 U.S. 287 (1833); United States v. Turner, 32 U.S. 132 (1833); Keary v. Farmers' and Merchants' Bank, 41 U.S. 89 (1842); Hyde v. Booraem, 41 U.S. 169 (1842); Dromgoole v. Farmers' and Merchants' Bank, 43 U.S. 241 (1844); Dade v. Irwin, 43 U.S. 383 (1844); Murphy v. Stewart, 43 U.S. 263 (1844); and Burwell v. Cawood, 43 U.S. 560 (1844). These cases overlap with those set out in Hoffman's curriculum. See Appendix III. Both groups rely almost exclusively on the English common law of insurance, bailment, common carriers, charter parties, and bills and notes. Indeed, Story's effort to expand the Admiralty jurisdiction of the federal district courts takes on a different complexion given the common law sources of the substantive law to be administered. Not so much the dream of the English civilian after all, and certainly not related to the extensive civilian studies required at Harvard. See Appendix II.

74

Such an expansive view of the admiralty jurisdiction had been the goal of the English civilians of Doctors' Commons throughout the 17 th century. See Daniel R. Coquillette, The Civilian Writers of Doctors' Commons, London (Berlin, 1988), 149-215.

Joseph Story, Legal Education, and the Lex Mercatoria

35

A third important group of Story's cases were those that cited to Roman law or maxims directly. Cicero was his favorite, followed by the Digest and the Institutes. See, for example, Arnold v. United States , 13 U.S. 104 (1815); Town of Pawlet v. Clark, 13 U.S. 292 (1815); The Aurora, 14 U.S. 96 (1816); Welch v. Mandeville, 14 U.S. 233 (1816); Duvall v. Craig, 15 U.S. 45 (1817); Philadelphia Baptist Association v. Hart's Executors, 17 U.S. 1 (1819); Green v. Biddle, 21 U.S. 1 (1823); Conrad v. Atlantic Insurance Company, 26 U.S. 386 (1828); Colombian Insurance Co. of Alexandria v. Ashby, 38 U.S. 331 (1839); and Black v. J.W. Zacharie , 44 U.S. 483 (1845), and of course, the famous citations to Cicero in Swift v. Tyson, supra, 41 U.S. 1 (1842) at 19, and in De Lovio, supra, 7 Fed. Cases (C. Mass. 1815) at 399. See Cicero, Frag. d. Repub. lib 3 (editio Boston 1817, ton. 17, ρ 186). Cf. Institutes 1,2,2; Digest 1,1,9 (Gaius). In the end, however, the Roman maxims were almost exclusively ornamental, the cases being resolved by common law authority. A final category of Story's decisions involved the invocation of the transnational lex mercatoria as an ultimate source of definition of legal terms. For example, in United States v. Smith , 18 U.S. 153 (1820), Story cited to passages in Grotius, Azuni, Bacon, Martens, Rutherforth, Burlamaqui, Calvinus, Bonnemant, De Habreu, the Novels, the Digest , Cicero, Valin, Straccha, Casaregis, Brown, Beawes, Molloy, Comyn, Leoline Jenkins, Targa, Emerigon, Erskine, and many other foreign treatises in an effort to define "piracy." Id., 163-164. Story's colleague, Justice Livingston, was unamused, observing that only Congress had the power and the duty to incorporate definitions of international law into the nation's statutory law, and that to impose "the task of looking beyond the written laws of their own country" was "unreasonable," at least for that "class of men who are most liable to commit offenses of this description." Id., 181. (A "fairness to pirates" rule?) Another case of this kind was United States v. La Jeune Eugenie, 26 F. Cas. 832 (C.C. Mass. 1822). Here Story relied on the "law of nations" to define "illegality" and to condemn slave trading as a violation of "universal law," a result later to be reversed, in part, by Chief Justice Marshall in the infamous The Antelope, 23 U.S. 66 (1825). 75 As Story observed in La Jeune Eugenie: 75 In retrospect, The Antelope was not Chief Justice Marshall's finest hour. Toward the beginning of his opinion he found slavery to be part of the ius gentium, in good Roman fashion. The Chief Justice observed: "That the course of opinion on the slave-trade should be unsettled, ought to excite no surprise. The Christian and civilized nations of the world, with whom we have most intercourse, have all been engaged in it. However abhorrent this traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned, in modern times, by the laws of all nations who possess distant colonies, each of whom has engaged in it as a common commerical business, which no other could rightfully interrupt. It has claimed all the sanction which could be derived from long usage and general acquiescence. That trade could not be considered as contrary to the law of nations which was authorized

3*

36

Daniel R. Coquillette

"Now the law of nations may be deduced, first, from the general principles of right and justice, applied to the concerns of individuals, and thence to the relations and duties of nations; or, secondly, in things indifferent or questionable, from the customary observances and recognitions of civilized nations; or, lastly, from the conventional or positive law, that regulates the intercourse between states. What, therefore, the law of nations is, does not rest upon mere theory, but may be considered as modified by practice, or ascertained by the treaties of nations at different periods. It does not follow, therefore, that because a principle cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at no subsequent period the principle can be considered as incorporated into the public code of nations. Nor is it to be admitted, that no principle belongs to the law of nations, which is not universally recognised, as such, by all civilized communities, or even by those constituting, what may be called, the Christian states of Europe. Some doctrines, which we, as well as Great Britain, admit to belong to the law of nations, are of but recent origin and application, and have not, as yet, received any public or general sanction in other nations; and yet they are founded in such a just view of the duties and rights of nations, belligerent and neutral, that we have not hesitated to enforce them by the penalty of confiscation. There are other doctrines, again, which have met the decided hostility of some of the European states, enlightened as well as powerful, such as the right of search, and the rule, that free ships do not make free goods, which, nevertheless, both Great Britain and the United States maintain, and in my judgment with unanswerable arguments, as settled rules in the law of prize, and scruple not to apply them to the ships of all other nations. And yet, if the general custom of nations in modern times, or even in the present age, recognized an opposite doctrine, it could not, perhaps, be affirmed, that that practice did not constitute a part, or, at least, a modification, of the law of nations. But I think it may be unequivocally affirmed, that every doctrine, that may be fairly deduced by correct reasoning from the rights and duties of nations, and the nature of moral obligation, may theoretically be said to exist in the law of nations; and unless it be relaxed or waived by the consent of nations, which may be evidenced by their general practice and customs, it may be enforced by a court of justice, whenever it arises in judgment. And I may go farther and say, that no practice whatsoever can obliterate the fundamental distinction between right and wrong, and that every nation is at liberty to apply to another the correct principle, whenever both nations by their public acts recede from such practice, and admits the injustice and cruelty of it. Now in respect to the African slave trade, such as it has been described to be, and in fact is, in its origin, progress, and consummation, it cannot admit of serious question, that it is founded in a violation of some of the first principles, which ought to govern nations." Id., 846.

In Peters v. The Warren Insurance Company , 39 U.S. 99 (1840), Story again referred to "the learned foreigners," this time as a source of the principles of insurance law. The issue was the definition of "loss". "The same question, however, has undergone the deliberate consideration of some of the greatest maritime jurists of continental Europe; and the result at which they have arrived is directly opposite to that of the King's Bench. Pothier lays it down as, in his opinion, the and protected by the laws of all commerical nations; the right to carry on which was claimed by each, and allowed by each." The Antelope, 23 U.S. 66 (1825), 114-115.

Joseph Story, Legal Education, and the Lex Mercatoria

37

clear result of the contract of insurance, that the underwriters are bound to pay not only the direct loss occasioned by any peril insured against, but all the expenses which follow as a consequence therefrom. Pothier, Traite d'Assurance, η. 49. Estrangin, a very excellent modern commentator upon Pothier, (Estrangin's note,) asserts that there is not the slightest doubt on the subject. Emerigon, whose reputation as a writer on the law of insurance is second to no one, unequivocally adopts the same opinion. Emerig. Assur. Ch. 12, s. 14, p. 414-417. In short, all those learned foreigners hold the doctrine that whenever the thing insured becomes by law directly chargeable with any expense, contribution, or loss, in consequence of a particular peril, the law treats that peril, for all practical purposes, as the proximate cause of such expense, contribution, or loss. And this they hold, not upon any peculiar provisions of the French ordinance, but upon the general principles of law applicable to the contract of insurance. In our opinion this is the just sense and true interpretation of the contract." Id., 111-112.

There were several more such "definitional" cases. See, for example, Comegys v. Vasse, 26 U.S. 193 (1828), at 213, and Burke v. McKay , 43 U.S. 66 (1844) at 71. 76 I have a good deal of work left to do in analyzing Story's four kinds of "lex mercatoria " cases. It is evident that Story used civilian sources toward a very civilian goal, expanding the federal Admiralty jurisdication. But his "rank and file" commercial cases ignored civilian doctrines and continental sources, except for use in defining terms that arguably had their origins in the ius gentium , such as 76 Indeed, the theme continues. In 1985, at a proceeding of the American Society of International Law, Friedrick Juenger observed: "Faced with the monstrous Agent Orange litigation, a case that demonstrates the futility of current conflicts doctrines, Judge Jack Weinstein applied a 'national consensus law' to resolve the problems posed by disparate state laws. This national consensus law bears a remarkable resemblance to the general federal common law that Justice Story had hypothesized in Swift v. Tyson. His opinion in Swift invoked the old law merchant, which Story believed should govern interstate and international commercial cases irrespective of the forum in which they were adjudicated. The law merchant - a living reality until it was sacrificed at the altar of legal positivism - had, in turn, a distinct affinity with the Roman ius gentium. The ius gentium, you will recall, was the law which the praetor peregrinus applied to transactions with and between non-Romans, and which later became the fountainhead of both private and public international law. You see what I am getting at. Long before the discovery of public international law, there was a private international law that facilitated important transnational activities. Nor are the ius gentium and the law merchant the only examples of such a supranational legal order. The English admiralty judges developed maritime law from sources spread widely over time and space, such as the ancient laws of Rhodes, the Roles dOleron and the consolât del mar. Their work product was later adopted not only in the United States but by civil law nations, and it has since become the common law of mankind by virtue of the fact that it was formally enshrined in numerous international conventions. Legal writers have recently begun to talk about a "new law merchant" developing through the dealings of actors such as transnational corporations. These enterprises can, de facto, if not de jure, denationalize the law that governs their relationships by developing appropriate patterns of contractual dealings and by submitting disputes to private arbitrators." American Society of International Law Proceedings, April 25-27, 1985, pp. 354-355. For a less romantic view, see M.E. Basile/ J.F. Bestor/D.R. Coquillette / C. Donahue, Lex Mercatoria and Legal Pluralism, supra, 123 - 178.

38

Daniel R. Coquillette

"piracy," the "illegality" of slave trade and the scope of "loss" in insurance contracts, as discussed above. The rest of his civilian references were almost exclusively ornamental. Whether this would justify the arduous travel from Charleston, South Carolina, or Savannah, Georgia, to attend law school in Cambridge, Massachusetts, would be open to doubt.

V. Story's Contemporaries It is also useful to compare Story's judicial and scholarly work to that of his contemporaries, and I am in the process of doing that study. One of these "colleagues," Peter du Ponceau (1760- 1844), made a particularly intriguing comparison. Born in France, du Ponceau learned English as a boy from English soldiers stationed close to his home. Because of his excellent English ability, he accompanyed Baron Steuben to America to fight for the patriots, landing in New Hampshire in 1777. He quickly rose in the ranks and became a captain, serving Steuben as aidede-camp. Following the war, du Ponceau settled in Philadelphia, where he studied law with Robert Livingston, and was admitted to the bar in 1785.77 Du Ponceau soon developed a large practice, focusing on commercial adjudication. Philadelphia was a principal port, like Salem, of the new republic, and, like Story, du Ponceau's clientele included merchants and ship owners of all sorts. And, like Story, he became closely involved with law teaching and the early stages of institutionalized American legal education. Du Ponceau eventually became an instructor at the "Law Academy," later the law school of the University of Pennsylvania. But here the similarities end. Du Ponceau was openly skeptical about the efforts of Story, Kent and Hoffman to "blend and combine" civil and common law legal doctrines in the jurisprudence of the New Republic. As Perry Miller has observed, du Ponceau "had the ingrained conviction of the continental lawyer that the Common Law is an English mystery, concocted out of stupidity and compromise." 78 In his 1824 "Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States," du Ponceau made clear that the common law was a national judge-made jurisprudence, a form of positive law, "impossible of abolition." 79 To the extent foreign doctrines were incorporated into this system of jurisprudence by judicial action, they were also national law, but, to du Ponceau, "transnational law" was simply a source of ideas, not a legal system. 77 Miller, 106-107. 78 Id., 106. 79 Peter Du Ponceau, A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, Being a Valedictory Address Delivered to the Students of the Law Academy of Philadelphia, at the Close of the Academic Year, on the 22 n d April, 1824, set out at id., 107-117.

Joseph Story, Legal Education, and the Lex Mercatoria

39

Du Ponceau also defended the "positive" common law against another perceived threat, codification. Ironically, as the best trained American jurists of his day in the civil law of Europe, du Ponceau developed a strong dislike for the Code Napoleon. "But admitting that this country possess superior legislative talents to any other, I assert, without the fear of contradiction, that it is impossible to abolish the Common Law. Make as many codes as you will, this second nature will still force itself upon you: Expellas furca tamen usque recurret. In proof of this, I shall adduce a very recent and very striking instance. The emperor Napoleon gave to the French a new and uniform code of laws, which has been now in force about twenty years. It is admitted to be as complete as a work of this kind can be, and well suited to the nation for whom it was made. But I can assure you, that, as far as I have been able to observe, the digests and code of Justinian, the former laws and ordinances of the kingdom, and the immense collection of the works of the civilians and French jurists are not less quoted at present in the lawyers' pleadings than they formerly were, and so it would be with us if we were to abolish the Common Law. We should still refer to it for principles and illustrations, and it would rise triumphant above its own ruins, deriding and defying its impotent enemies .. .". 8 0

This dislike extended to Benthamite ideas, then being imported from England: "That there are real and serious inconveniences in our actual system of jurisprudence, is what no candid man will deny; but none of them is, nor are all of them sufficient to induce the abolition of the Common Law. Were it abolished, a still greater difficulty must arise, to fill up the immense chasm which would be produced by its absence. Not all the codes of all the Benthams would be capable of producing that effect." 81

Those issues were far from academic at the time. The Louisiana Purchase of 1803 had doubled the size of the United States and incorporated a civil law jurisdiction, centered in the well-developed port of New Orleans. Robert Livingston, du Ponceau's law tutor, had negotiated the Purchase on behalf of President Jefferson, Story's nemesis. Men like Samuel Livermore, whose bequest of civil law books had meant so much to Story and Harvard Law School, practiced in the civilian jurisdiction of New Orleans. The relationship between the jurisprudence of New Orleans and the common law jurisdictions excited and challenged du Ponceau's contemporaries, and may well have influenced Story's opinion in Swift v. Tyson. Even du Ponceau would have approved, as long as this Louisiana Purchase "influence" was distinguished from external sources of law. After all, the Louisiana Purchase was the ultimate "incorporation" of civil law into the American common law system.

80 Id., 113. Du Ponceau is quoting Horace, Epistles, Book 1, letter No. 10, line 24. "You may drive out Nature with a pitchfork, yet she will ever hurry back, and ere you know it, will burst through your foolish contempt in triumph." (trans., Loeb edition, 1966.) For this, I am indebted to Susannah Tobin, si Id. , 112.

40

Daniel R. Coquillette

Andrew Jackson, the populist Democrat, was the "hero of New Orleans," where he defeated a British expeditionary force after the war of 1812 was officially over. Following his election as President, Jackson's policies directly threatened the elitism of both du Ponceau and Story. Legislation was the common man's weapon against the "mystery" of the law professors. With advocates like David Dudley Field, Thomas Smith Grimké, and Edward Livingston, the Louisiana Purchase was seized on, in Lawrence Friedman's words, as "an American demonstration of the superiority of codification." 82 In resistance to this idea, du Ponceau and Story made common cause. Both argued that the common law was a better, more flexible, more adaptable and wiser vehicle for change than codification, a vehicle that offered more protection for capital and property against the tides of political popularism. And did not the "transnational" character of law merchant offer yet another safeguard? Story would emphatically say "yes." Du Ponceau would not necessarily agree. In du Ponceau's view, transnational lex mercatoria , carelessly juxtaposed with genuine national law, could be a source of confusion and uncertainty. Nevertheless, such a "transnational" myth bolstered the development of a system of elite legal education within the universities. It was also a potent bulwark against Jacksonianism. Jackson's terms as President (1829-1837) bracketed Story's historic period as Dane Professor at Harvard. To his dying day Jackson condemned "government by experts." 83 Under the influence of Jackson's followers, formal requirements for bar admissions were cancelled in many states. Friedman has argued that "theories of Jacksonian democracy" were only one reason why "the bar let down its bars on admission."84 "Government control of occupation was, in general, weak and diffuse ... Formal restrictions disappeared; but the market for legal services remained, a harsh and efficient control." 85 This Story understood w e l l . . . and his answer was to make elite legal education, an education unavailable in the law offices of the towns and villages of the ever expanding land, the key to the best professional practice. And his advocacy of a transnational lex mercatoria, as the "noble" part of such a curriculum, served this purpose well. Thus, in Story's view, the lex mercatoria was not a creature of politicians or codifiers. It was not subject to facile overruling by ignorant local judges who learned their law by crude apprenticeships in remote towns. Its guardians were an educated elite of merit and virtue who, like the jurists of Republican Rome, were cosmopolitan men of vision and sophistication. Such men would demand education at a truly national, university-linked law school with a broad, transnational 82

Laurence M. Friedman, A History of American Law (2 n d ed., 1985), 403. "Jackson, especially, felt that government jobs called for basic, fungible skills; any man of intelligence and honor could hold office." Id., 187. But as Friedman observes, in practice Jackson appointed men that, while "not experts," were "educated and skillful." Id., 187. 84 Id., 317. S5 Id., 317-318. 83

Joseph Story, Legal Education, and the Lex Mercatoria

41

mission. That the practical value of such a curriculum might be open to doubt, even in Story's own judicial work, missed the point. It was the creation of a selfidentified legal elite that was important. Has time shown Story to be wrong?

V I . Conclusion My work is incomplete. My next step is to recreate Hoffman's course on lex mercatoria , by analyzing all of his required books and cases, and then do the same for Story's Harvard courses. The Story archives are scattered, but I have had excellent assistance from David Warrington, Harvard's able curator of Special Collections; from Peter Drumey, the equally able Librarian of the Massachusetts Historical Society; and from my excellent research assistant, Charles Loeffler. I am also expanding my study of Story's lesser known contemporaries, such as Jesse Root (1736-1822), Richard Rush (1780-1859), Thomas Smith Grinké (1786-1834), Timothy Walker (1802-1856) and du Ponceau himself. Walker, incidentally, has been described by Perry Miller as a "splendid example of how lawyers trained in the East to worship the ideals of Mr. Justice Story carried with them into the crudity of the West a sense of mission." 86 Grimké's heritage to Harvard was even more striking. His son by his slave, Nancy Weston, was Archibald Grimké. In 1874 this son, with the help of Grimké's two famous suffragette sisters, became the second black student to graduate from Story's elitist Harvard. 87 Finally, I am in the process of preparing a detailed analysis of the "evolution" in Story's thinking about the lex mercatoria throughout his extraordinarily long time as a judge and treatise writer. This has required examining all of Story's cases and writings on commercial law during his 34 year career as a judge, and throughout the 36 years between his Salem editions of Chitty's Bills of Exchange (1809) and Abbott's Merchant Shipping (1810) and the publication of his treatise on Promissory Notes in 1845, the year he died. The preliminary results of this study show that extraordinary shifts occurred in Story's views about the lex mercatoria, related in part to phases in his political and judicial career but, significantly, most closely related to his academic career. By the end of Story's career, the radical assertions in his great inaugural treatise, Commentaries on the Law of Bailments (1832), were abandoned, and Story began to turn full circle to his earliest positions. In his concluding treatise of 1843, Commentaries on Bills of Exchange, Story was actually critical of the very same civil and transnational sources that he lauded in 1832:

86 Miller, 238. 87 Grimké, a widower, tried to free both his common law wife and his two sons by her. Cruel South Carolina laws prohibited it. In the end, Archibald was "inherited" by his halfbrother, and had to escape to the North.

Daniel R. Coquillette

42

"They are highly useful in stating general principles, but rarely extend their discussions into the more minute ramifications of those principles, which enter into the practical details of the daily business of commercial life. They expound the theory, and often discuss the abstract propriety, of particular rules and exceptions; and awaken a spirit of inquiry, although, perhaps, they do not always satisfy our judgment by their results. " 8 8 (emphasis added) Instead, it was to the common law that he eventually turned for America's "own system of Commercial Jurisprudence!" 89 "But it is to the elaborate judgments of the tribunals of England, that we must look for the most copious, exact, and minute instruction upon this important subject, and for thorough practical adaptations of general principles to the varied exigencies of human life, and the due administration of civil justice. America received from the parent country the materials, out of which she has constructed her own system of Commercial Jurisprudence, and her labors have, as we trust, added to the common stock some valuable illustrations and some solid doctrines." 90 What had changed? The country, of course. But also the Harvard Law School, which now had nearly 150 students from over 30 states. It had become clearly dominant as the national law school in the new country, with an established commitment to elitist legal education. The lex mercatoria "had served its purpose." Even so, Story concluded his last treatise with a quotation from Scaccia: "If the remark of Scaccia, made more than two hundred years ago, in the comparative infancy of commerce, was then true, it applies with far more force to us in the present age. Quinimo, Cambia adeo sunt Reipublicae utilia et necessaria, ut si Cambia cessarent, omnia pene mercaturae officia dissiparentur, ac destituerentur." 91

88

Joseph Story , Bills of Exchange (1 st ed., 1843). "Preface," vii. S9 Ibid. 90 Ibid. 91 Ibid.

Joseph Story, Legal Education, and the Lex Mercatoria

43

Appendix I Law Institute of Harvard University "Course of Study" Cambridge, MA July 16, 1838 LAW INSTITUTION OF HARVARD UNIVERSITY. FACULTY OF LAW. HON. J O S I A H Q U I N C Y , L L . D . ,

President.

HON. J O S E P H S T O R Y , L L . D . S I M O N G R E E N L E A F , LL. D.

THE design of this Institution is to afford a complete course of legal education for gentlemen intended for the bar in either of the United States; and elementary instruction for gentlemen not destined for the bar, but desirous of qualifying themselves either for public life, or for commercial business. The course of instruction embraces the various branches of Public and Constitutional Law, Admiralty, Maritime, Equity, and Common Law, with occasional illustrations of Foreign Jurisprudence. The School is under the immediate superintendence and direction of M R . GREENLEAF, Royall Professor of Law, in the University. M R . JUSTICE STORY, of the Supreme Court of the United States, is Dane Professor of Law in the University, and participates equally in the active labors of instruction, when not engaged in judicial duties. His course includes the principal branches of Maritime, Equity, Commercial, and Constitutional Law. The Royall Professor gives instruction in the Common Law, and in all the other juridical studies. In every week of the term there are at least six private lectures, and usually more; at which the students are examined in their respective studies, and oral explanations and illustrations are given by the Professors. Public written lectures are also occasionally delivered, upon the more important topics of jurisprudence. The course of studies is so arranged as to be completed in two years; and, with reference to these studies, the students are divided into classes, according to their proficiency; but students are generally at liberty to join either class, in as many studies as they may choose, according to their own view of their wants and attainments. The Academical year is divided into two terms and two vacations. Commencement is an the fourth Wednesday in August. The first term begins an the Friday then next ensuing, and continues twenty weeks. The first vacation continues six. weeks from the end of the first term. The second term begins at the end of the first vacation, and continues twenty weeks. The second vacation continues from the end of the second term, till Commencement. For the two ensuing Academical years, the books read with Professor STORY will be the following. FIRST Y E A R . First Term. Marshall on Insurance; Long an Sales; Story an Equity Jurisprudence and Pleadings. Second Term. Paley (or some other Treatise) an Agency; Gow (or some other Treatise) an Partnership; Story an Equity Jurisprudence and Pleadings. SECOND Y E A R . First Term. Bayley on Bills; Story an the Conflict of Laws; Equity, as in the

44

Daniel R. Coquillette

preceding year. Second Term. Abbott an Shipping; Story on the Constitution; Equity, as in the preceding year. The following books will be read with Professor GREENLEAF.FIRST Y E A R . First Term. Blackstone's Commentaries; Kent's Commentaries; Stephen an Pleadings Chitty on Pleading; Starkie an Evidence. Second Term. Chitty on Contracts; Story on Bailments; Angell and Ames on Corporations; Cruise's Digest of the Law of Real Property. SECONND Y E A R . The same books as in the preceding year. For gentlemen who remain in the Institution three years, other studies are prescribed. A moot Court is holden every week, by one of the Professors, at which a cause, previously given out and prepared, is argued by four students, in rotation, and an opinion is delivered by the presiding Professor. Students may generally be accommodated with rooms, in the spacious and convenient College buildings prepared for their use, upon the same terms as undergraduates; and may, if they choose, board in Commons, as resident graduates, at $ 2.25 per week. They may, at their pleasure, receive instruction in any of the modern languages, at the price of $ 10 per annum for Bach language studied. The rent of College rooms is from $ 24 to $ 25 per term. Rooms in private houses can be had at from 75 Cents to $ 1.25 per week; and private board at from $2.25 to $3.50 per week. Wood and coal prepared for use, are delivered at students' rooms, by the University, at cost, varying with the market price. The Fees for instruction in the Law School are $ 100 per annum, and proportionably for any shorter period, not less than three months; for which sum the students have the use of the lecture rooms the Law Library containing upwards of 4000 volumes; the general Library of the University, containing about 36,000 volumes; and the privilege of attending, gratis , all the public lectures, in every Department of the University. They are also furnished with all the books studied as class books in the School, unless they prefer their own, for the Bake of making notes and references, with a view to future study and practice. Instruction is given for any period, not less than three months, which may suit the convenience of the student. No previous examination is necessary for admission; but every student is expected to produce satisfactory testimonials of good character, and some statement of his previous studies. Bonds in the penal sum of $ 200, are given to the Steward for the payment of all dues to the College; with one surety resident in Massachusetts. The degree of Bachelor of Laws is conferred by the University an all students who have completed the regular term of professional studies, required by the laws and rules of the State to which they belong, eighteen months thereof having been passed in the Law School of this Institution. Cambridge, Mass., July 16, 1838

Joseph Story, Legal Education, and the Lex Mercatoria

45

COURSE OF STUDY. The books marked thus (*) compose the course which is completed in two years. The studies of gentlemen who remain longer in the School, are pursued in other books in the regular course, to which others are added from time to time, as far as the leisure and progress of the students may permit. The parallel course is prescribed chiefly for private reading. Parallel Course.

Regular Course. •Blackstone's Commentaries. •Kent's Commentaries. Wooddeson's Lectures.

Sullivan's Lectures. Hale's History of the Common Law. Reeves's History of the English Law. Hoffmanns's Legal Outlines. Lieber's Political and Legal Hermeneutics, and Ethics. L A W OF PERSONAL PROPERTY.

•Chitty on Pleading. * Stephen on Pleading. *Chitty on Contracts. •Starkie on Evidence. •Long an Sales. Bingham on Infancy •Angell and Ames on Corporations, Williams on Executors. Angell on Limitations. Roper on Husband and Wife. * Story on the Conflict of Lawa.

Select titles in the Abridgments of Dane and Bacon. Collinson on Idiots and Lunatics. Shelford on Lunatics, &c. Hammond's Nisi Prius. Hammond on Parties. Kyd an Awards. Reeves's Domestic Relations. Roberts on the Statute of Frauds. Roper on Legacies. Gould's System of Pleading. Starkie on Slander. Saunders's Reports, (Williams's Edition.) Select cases in the Reports. COMMERCIAL AND M A R I T I M E LAW.

•Abbott on Shipping. *Bayley on Bills, by Phillips. *Paley an Agency. •Marshall on Insurance. *Story on Bailments. *Gow on Partnership. Theobald on Principal and Surety. Brown's Admiralty Law.

Phillips on Insurance. Benecke on Insurance, Stevens on Average, Bell's Commentaries on Commercial Law. Livermore on Agency. Azuni's Maritime Law. Fell on Guarantee. Bacon's Abridgment, tit. Merchant. Dane's Abridgment, select titles. Collier on Partnership. Select cases in the United States Courts. L A W OF R E A L PROPERTY.

•Cruise's Digest. Fearne on Remainders. Powell on Mortgages, (Rand's ed.)

Preston on Estates. Runnington on Ejectment. Powell on Devises.

46

Daniel R. Coquillette

Sanders on Uses and Trusts. Stearns on Real Actions. Adams on Ejectment, by Tillinghast. Sugdens Vendors. Jackson an Real Actions.

Angell on Water-Courses. Woodfall's Landlord and Tenant. Roscoe on Actions respecting Real Property. Coke upon Littleton. Dane's Abridgment, select titles. Hayes an Limitations in Devises. Select cases in the Reports. EQUITY.

Bartons Suit in Equity. Maddock's Chancery. *Story on Equity Jurisprudence. * Story on Pleadings in Equity. Jeremy's Equity Jurisdiction. Newland on Contracts in Equity. Eden an Injunctions.

Fonblanque's Equity. Cooper's Pleadings in Equity. Redesdale's Pleadings in Equity. Beames's Pleas in Equity. Hoffman's Master in Chancery. Blake's Chancery. Select cases in the Reports. CRIMINAL LAW.

East's Pleas of the Crown. Russell an Crimes.

Chitty's Criminal Law. Archbold's Pleading and Evidence. Select cases in the Reports. C I V I L A N D FOREIGN L A W .

Gibbon's Roman Empire, Ch. 44. Justinians Institutes, (by Cooper.) Justinian's Pandects, (by Pothier.) Toullier's Droit Civil Français, wich the Supplements. Pothier's Commercial Treatises. Pothier an Obligations. Louisiana Civil Code and Code of Practice.

Domat's Civil Law, select titles. Browne's Civil Law. Butler's Horae Juridicae. Ayliffe's Roman Law. The Partidas, by Moreau and Carleton.

L A W OF NATIONS.

Marten's Law of Nations. Rutherford's Institutes. Wheaton on Captures. Wheaton on International Law.

Ward's Law of Nations. Vattel's do. Bynkershoek's Law of War.

CONSTITUTIONAL LAW.

American Constitutions. The Federalist. *Story's Commentaries on the Constitution. Rawle an the Constitution. Select cases and speeches.

Joseph Story, Legal Education, and the Lex Mercatoria

47

Appendix Π Joseph Story's Academie Career (1815-1845) I am paricularly indebted to my research assistant, Michael Hayden, for this analysis. Timeline 1815-

June 27 th Charles P. Sumner asks Story to deliver public lectures. See papers of the Massachusetts Historical Society, described at note 7, supra (hereafter, "MHS papers"). June 30 th Story declines since Harvard will soon be having lectures (see MHS papers). August 18 th Corporation votes to make John Lowell first law professor. Lowell declines. September 4 t h Corporation votes to make Isaac Parker first law professor an recommendation of Lowell. September 14 th Corporation votes to name professorship after Royall and use his behest to establish a professorship of law.

1816-

Isaac Parker appointed overseer (1816-1830). April 17 th Inauguration of Isaac Parker as Royall Professor.

1817-

May 14 th Parker suggests a plan for a law school at Harvard. Corporation accepts Parker's proposal. June 26 th Asahel Stearns elected University Professor of Law. July 11th Proposed outline for course of study.

1818-

Story appointed overseer of Harvard (1818-1825).

1819-

November 16 th Story, Lowell, and Judge Jackson appointed to committee to examine candidates for the Degree of Bachelor of Laws.

1820-

Corporation asks Story to become "Professor of maritime, commercial and publick law"

1825-

June 2 n d Story appointed fellow (one of four) of Harvard College ( 1825 -1845). June 18 th Stearns petitions corporation for new building. July Stephen Higginson, the College treasurer, wrote to the Corporation regarding the Stearns' petition. In August the Corporation appointed a committee to look into the matter (see Harv. Coll. Papers , Vol. XI.). January 25 th , Committee of the Overseers (including Story) issues "Statutes and Laws of the University in Cambridge, Massachusetts" detailing needed improvements in the University including the establishment of distinct departments and annual reports.

1827-

November 6 t h Parker resigns the Royall Professorship (See Charles Warren, History of the Harvard Law School (1908) vol.1, 359 (Hereafter, "Warren").)

1828-

Ashmun expresses doubts about Northampton Law School (see MHS, Ashmun papers) February 9 t h Story unofficially offered Royall Professorship by Reverend John Brayer (See Life & Letters , 532 and Warren, vol.1, 359)

Daniel R. Coquillette

48

March 6 t h Story officially declines offer citing health, work, and his belief that the school needed a full time professor (See Life & Letters , 532, and Warren, vol.1, 359) April 2 n d President Kirkland resigns amidst growing concerns over the financial stability of the college. 1829-

Josiah Quincy elected President of Harvard College (January 10 th ). March 19 th committee to consider the state of the Law School formed. April 7 t h Stearns resigns as University Professor (See Warren, vol.1, 365-369). Dane approaches Story about becoming law professor (See Warren, vol. 1, 416-417). May 19 th Story writes to Corporation setting out terms for his acceptance (Warren, vol.1, 417-418). June 2 n d Story presents Dane's proposed endowment to the Corporation (Warren, vol. 1,418-421). June 3 r d Corporation accepts donation and elects Story Dane Professor. June 11th Ashmun elected as Royall Professor. August 1st Story writes to Richard Peters of need for "a more scientific system of legal education" (Warren, vol 1, 429 fn. I). August 25 th Story and Ashmun inaugurated as Professors. 1833April 1st Ashmun dies. April 23 r d Corporation elects Simon Greenleaf Royall Professor. 1834- January 23 r d Overseers accept selection of Greenleaf Royall Professor. August 29 th Greenleaf inaugurated as Royall Professor. November 28 th Greenleaf suggests hiring of another instructor.

1836-

Greenleaf considers leaving school (See Greenleaf notes, Harvard Law School Library, described at note 7, supra. Hereafter, "Greenleaf notes.").

1839-

September 11th HLAA founded (See Greenleaf notes).

1842-

August Greenleaf gives speech at alumni dinner (See Greenleaf notes). 1845- March 19 th Quincy resigns. August 5 t h Story tells Francis Bassett, clerk of his Circuit, that he will resign. September 10 th Story dies.

Appendix I I I David Hoffman's Required Cases for the Lex Mercatoria Curriculum (2d ed. 1836) Cases from Hoffman's Course of Legal Study, an the Lex Mercatoria, for footnote 66. Douglas' Reports: Douglas, Sylvester (Baron Glenbervie) Reports, King's Bench [1778 — 1781], London, 1782. 2"d ed., 2 parts in 1 volume, 1786. 3 r d ed. vols. 1 and 2, 1790. See 1 Sweet & Maxwell's Legal Bibliography (2 n d ed., London, 1989), vol.1, p. 299, item 44. Volume 1 Bean v. Stupart, p. 11 (1778) Wooldridge v. Boy dell, p. 17 (1778) Milford v. Mayor, p. 55 (1779) Lilly v. Ewer, p. 72 (1779)

Joseph Story, Legal Education, and the Lex Mercatoria

49

Milles v. Fletcher, p. 231 (1779) Dingwall v. Dunster, p. 247 (1779) Planche v. Fletcher, p. 251 (1779) Johnston v. Sutton, p. 254 (1779) Macdowall v. Fraser, p. 260 (1779) Lavabre v. Wilson, p. 284 (1779) Mason v. Hunt, p. 297 (1779) Barber v. Fletcher, p. 305 (1779) Thellusson v. Fletcher, p. 315 (1780) Earle v. Harris, p. 357 (1780) Hoare v. Dawes, p. 371 (1780) Volume II Noble v. Kennoway, p. 510 (1780) Russel v. Langstaffe, p. 514 (1780) Loraine v. Thomlinson, p. 585 (1781) Peacocke v. Rhodes, p. 633 (1781) Ancher v. Bank of England, p. 638 (1781) Runston v. Aspinall, p. 679 (1781) Eden v. Parkison, p. 733 (1781) Bermon v. Woodbridge, p. 781 (1781) Burrow's Reports: Burrow, Sir James, Reports, King's Bench 1756-1772. Vols. 1 and 2, eds. 1766, 1771, 1777, 1790, 1812. Vol. 3, 1771, 1779, 1790, 1812. Vol. 4, 1776, 1777, 1778, 1790, 1812. Vol. 5, 1780, 1790. See Sweet & Maxwell's Legal Bibliography (2 n d ed., London, 1989), vol. 1, p. 294, item 20. See also John W. Wallace, The Reporters , 4 t h ed., Boston, 1882, 446-452. Volume I Pelly v. Royal Exchange Assurance Comp., p. 341 (1757) Miller v. Race, p. 452(1758) Godin v. London Assurance Comp., p. 489 (1758) Volume II Heylyn v. Adamson, p. 669 (1758) Goss v. Withers, p. 683 (1758) Luke v. Lyde, p. 882 (1759) Gardiner v. Croasdale, p. 904 (1760) Hamilton v. Mendes, p. 1198 (1760) Edle v. East India Company, p. 1216 (1760) Volume III Price v. Neal, p. 1354 (1762) Grant v. Vaughan, p. 1517 (1763) Pillans v. Van Meirop, p. 1663 (1765) Carter v. Boehm, p. 1905 (1766) 4 Piergiovanni

50

Daniel R. Coquillette

U.S. Supreme Court Cranch 's Reports Clark v. Young, 5 U.S. (1 Cranch) 181 (1803), Wilson and Lenox v. Maitland, 5 U.S. (1 Cranch) 194 (1803), Mandeville and Jameson v. Riddle & Co., and Note A in Appendix CITE PENDING Marine Insur. Comp, of Alexandria v. Tucker, 7 U.S. (3 Cranch) 357 (1806), Lawrason v. Mason, 7 U.S. (3 Cranch), 492 (1806) Rhinelander v. Penn. Insur. Comp., 8 U.S. (4 Cranch) 29 (1807) United States v. Willing and Francis, 8 U.S. (4 Cranch) 48 (1807) Alexander v. Baltimore Insur. Comp., 8 U.S. (4 Cranch) 370 (1808) Mandeville and Jameson v. Wilson, 9 U.S. (5 Cranch) 15 (1809) Hodgson v. Marine Insur. Comp, of Alexandria, 9 U.S. (5 Cranch) 100 (1809) Livingston and Gilchrist v. Maryland Insur. Comp., 10 U.S. (6 Cranch) 274 (1810) Russell v. Clark's Executors, 11 U.S. (7 Cranch) 69 (1812) Livingston and Gilchrist v. Maryland Insur. Comp., 11 U.S. (7 Cranch) 506 (1813) Marcardier v. The Chesapeake Insur. Comp., 12 U.S. (8 Cranch) 39 (1814) Gracie v. Marine Insur. Comp., 12 U.S. (8 Cranch), 75 (1814) The Ship Société, 13 U.S. (9 Cranch) 209 (1815) Wheaton 's Reports Morgan v. United States Insur. Comp., 14 U.S. (1 Wheat.) 219 (1816). Coolidge v. Payson, 15 U.S. (2 Wheat.) 66 (1817) Raborg v. Peyton, 15 U.S. (2 Wheat.) 385 (1817) Lenox v. Prout, 16 U.S. (3 Wheat.) 520 (1818) Lanusse v. Barker, 16 U.S. (3 Wheat.) 101 (1818) Swan v. Union Insur. Comp., 16 U.S. (3 Wheat.) 168 (1818) Mandeville v. Welch, 18 U.S. (5 Wheat.) 277 (1820) Smith v. Universal Insur. Comp., 19 U.S. (6 Wheat.) 176 (1821) Dorr v. Pacific Insur. Comp., 20 U.S. (7 Wheat.) 581 (1822) Fleckner v. U.S. Bank, 21 U.S. (8 Wheat.) 338 (1823) Spring v. S. Car. Insur. Co., 21 U.S. (8 Wheat.) 268 (1823) Gracie v. Palmer, 21 U.S. (8 Wheat.) 605 (1823) Renner v. Bank of Columbia, 22 U.S. (9 Wheat.) 581 (1824) McGruder v. Bank of W., 22 U.S. (9 Wheat.) 598 (1824) U.S. Bank v. Bank of Georgia, 23 U.S. (10 Wheat.) 333 (1825) Jenney v. Columbia Insur. Comp., 23 U.S. (10 Wheat.) 411 (1825) Brooks v. Marbury, 24 U.S. (11 Wheat.) 78 (1826) United States v. Tappan, 24 U.S. (11 Wheat.) 419 (1826) Drummond v. Prestman, 25 U.S. (12 Wheat.) 515 (1827) General Insurance Company v. Ruggles, 25 U.S. (12 Wheat.) 408 (1827)

Joseph Story, Legal Education, and the Lex Mercatoria Peters ' Reports Bank of Washington v. Triplett and Neale, 26 U.S. (1 Pet.) 25 (1828) Buck and Hedrick v. Chesapeake Insur. Comp., 26 U.S. (1 Pet.) 151 (1828) McLanahan v. Universal I. Co., 26 U.S. (1 Pet.) 170 (1828) Schimmelpenich V. Bayard, 26 U.S. (1 Pet.) 264 (1828) Conrad v. Atlantic Insur. Comp., 26 U.S. (1 Pet.) 386 (1828) Bank of Columbia v. Lawrence, 26 U.S. (1 Pet.) 578 (1828) Townsley v. Sumrall, 27 U.S. (2 Pet.) 170 (1829) Leroy et al v. Johnson, 27 U.S. (2 Pet.) 186 (1829) Buckner v. Finlay and Van Lear, 27 U.S. (2 Pet.) 586 (1829) Patapsco Insur. Comp. v. Coulter, 28 U.S. (3 Pet.) 222 (1830) McDonald v. Magruder, 28 U.S. (3 Pet.) 470 (1830) Boyce and Henry v. Edwards, 29 U.S. (4 Pet.) 1 1 1 (1830) Patapsco Insur. Comp. v. Southgate, 30 U.S. (5 Pet.) 604 (1831) Edmondson v. Drake and Mitchell, 30 U.S. (5 Pet.) 624 (1831) Windship et al v. Bank of the U. States, 30 U.S. (5 Pet.) 529 (1831) Douglas v. Reynolds, 32 U.S. (7 Pet.) 113 (1833) Scholefield v. Eichelberger, 32 U.S. (7 Pet.) 586 (1833) Hazard's Administrator v. New England Marine Insur. Comp., 33 U.S. (8 Pet.) 557 (1834) Bank of Alexandria v. Swan, 34 U.S. (9 Pet.) 33 (1835)

4'

51

ALBRECHT CORDES

The search for a medieval Lex mercatoria In the first winter of the Seven Years War, on the 14 th of December 1756 to be precise, French pirates seized the English freighter "Sarah". At this point she had covered 17 of the estimated 21 days of the journey from Newfoundland to Lisbon. The freight was not lost beyond retrieval, as three days later an English privateer was able to recapture the "Sarah". The goods were then transported to England, where the privateer had to be rewarded for the re-seizure with half the total value of the goods1. What was the consequence of this loss for the freight due to the carrier? The shipowners and freighters Luke and associates and their customer, the merchant Lyde, argued as to how much of the £ 150 reward Lyde was liable to pay after this incident. The case appeared before one of the most renowned jurists in English legal history, the recently appointed Chief Justice of the King's Bench, Lord Mansfield 2 who decided as the second and final instance. First of all, Lord Mansfield halved the disputed amount, i.e. £ 75. As half of the cargo's value was to be paid to the privateer, half of the freight should be lost, too. But not even this second half was entirely granted to the petitioner. Lord Mansfield ruled that the sum payable to him was to be diminished in correspondence with the part of the journey which had in fact been covered. As the incident had occurred after 17 of 21 days, Lord Mansfield decided accordingly that the defendant should pay 17/21 of the £ 75 - i. e. * Revised version of a paper previously published in German (Zeitschrift der SavignyStiftung für Rechtsgeschichte, Germanistische Abteilung, Vol. 118, 2001, p. 168-184) and French (Pierre Monnet and Otto Gerhard Oexle (eds), Stadt und Recht im Mittelalter/La ville et le droit au Moyen Âge, 2003, 117-132). Translated with the help of Bernd Kannowski, Edda Frankot and Gerhard Dannemann. I am very grateful to all three for this invaluable support. However, I alone bear the responsibility for all flaws in language and content. 1 Luke v. Lyde (1759) 2 Burr 882. It is obvious that the privateer's reward was based on an established action, since Counsel for plaintiff argued that the privateer should have received a reward of only one third of the value because he had had the cargo in his possession for less than 96 hours. It is unclear why this argument was not taken up by either the other party or the court. 2 Kent Lerch Murray, Sir William, Lord Mansfield', in: Michael Stolleis (ed) Juristen. Ein biographisches Lexikon. Von der Antike bis zum 20. Jh., (1995), 448 f. (2 n d ed. 2001), including references to recent literature on Lord Mansfield. See in particular James Oldham The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (1993). The latest article on our subject was published after the closure of this manuscript: Kent Lerch 'Vom Kerbholz zur Konzernbilanz', in: Rechtsgeschichte 5 (2004), 107-127.

54

Albrecht Cordes

£ 60 and 14 s. The principle of this decision is that of proportional freight - in Mansfield's words freight "pro rata itineris" 3. The contrary maxim is that of half freight: i f the journey is interrupted by an incident for which the freighter is not responsible, nothing is due for the lost cargo, whereas for the saved cargo half of the freight has to be paid irrespective of the part of the journey covered 4 . Lord Mansfield based his judgement in the first place on "common sense". This sounds very British but is rather similar to a way of reasoning which became popular in Germany at that same time, i.e. to deduce arguments from the "Natur der Sache" 5 , the nature of the matter. Secondly, Lord Mansfield based his findings on the result of his own comparative investigation. He concluded that all past and present systems of law, from the ancient Lex Rhodia through the medieval maritime laws of the Catalan Llibre del Consolât de Mar and the French Rôles d O l é r o n to the Hanseatic maritime laws and K i n g Louis X I V ' s Ordonnance de Commerce had come to this same decision 6 . Lord Mansfield concluded that Maritime Law was not the law of one particular country but instead a general law of nations: "Non erit alia lex Romae alia Athenis; alia nunc alia posthac ; sed et apud omnes gentes et omni tempore una eademque Lex obtinebit" 7 - Neither Rome nor

3 LukevLydei n. 1), 888. Götz Landwehr 'Prinzipien der Risikotragung beim Seefrachtvertrag', in: Gerhard Köbler and Hermann Nehlsen (eds) Wirkungen europäischer Rechtskultur. Festschrift für Karl Kroeschell zum 70. Geburtstag (1997), 595-615 (598 f.), traces this older principle (half of the freightage for saved goods no matter where the accident took place) back to old Icelandic law. Today's German commercial law, § 630 Handelsgesetzbuch (HGB, Commercial Code), enacts the principle of "Distanzfracht - distance freightage". According to this, the charterer also has to pay a fraction of the freightage for the saved cargo. However, this is calculated not only in regard of the fraction of the journey covered but also in regard of the proportion of the costs and perils the carrier took upon him up to the point of the accident, §631 HGB. 5 Heinrich Marx Die juristische Methode der Rechtsfindung aus der Natur der Sache bei den Göttinger Germanisten Johann Stephan Pütter und Justus Friedrich Runde (1967), 27 f.; Karl Kroeschell Deutsche Rechtsgeschichte 3 (seit 1650) (3 r d ed. 1989), 65-67, 109, 116; Klaus Luig 'Schäfchen zählen - mit gesundem Menschenverstand', in: Köbler and Nehlsen (n. 4), 687-693. 6 2 Burr 890 f. ι 2 Burr 887; cited also by CHS Fifoot 'Lord Mansfield', (1936, reprint 1977), 87 f. Among the cited authorities for the concept of a universal law of commerce is Gerard Malynes Lex mercatoria or the Ancient Law-Merchant (1622), which therefore will be discussed below. Lord Mansfield also based other decisionson the "Lex mercatoria"as e.g. in the insurance case Pelly v. Royal Exchange Assurance, Burr. 1, 341. This notion of a universal character of trade law gained considerable influence and was among others reflected in Levin Goldschmidt Universalgeschichte des Handelsrechts (3 r d ed 1891). On Goldschmidt see Lothar Weyhe Levin Goldschmidt, Ein Gelehrtenleben in Deutschland; Grundfragen des Handelsrechts und der Zivilrechtswissenschaft in der zweiten Hälfte des 19. Jahrhunderts (1996). On Goldschmidt's universal approach see the two recent articles by Karl Otto Schemer 'Lex mercatoria - Realität, Geschichtsbild oder Vision?', in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 118 (2001), 148-167, and: 'Goldschmidts 4

The search for a medieval Lex mercatoria

55

Athens had any other law, neither today nor previously; but in all countries and at all times the same rule would did apply. A similar pattern of reasoning is used in today's discussion about the principles of the so-called New Lex mercatoria 8 . According to its supporters, its rules emerge and come into being independent from the w i l l of any particular national legislator 9 . The belief in the unchanging content of the rules may have been lost since the days of Lord Mansfield but there is a clear similarity in the conviction as such. Supporters of International Private Law challenge the idea of the so-called mercatorists that law could possibly come into being without the explicit enactment by a legislator 1 0 - among other reasons because their own set of rules for norm collision might become superfluous in view of such a system of supranational law. Another objection they have against the New Lex mercatoria is that this supposed area of law appears so nebulous that it is impossible to determine its content and its standards 11 . But above all, a law without state authority is unthinkable for the Universum', in: Mario Ascheri et al. (eds), "Ins Wasser geworfen und Ozeane durchquert". Festschrift für Knut Wolfgang Nörr (2003), 859 - 892. 8 The new website http://www.tldb.de, founded and maintained by Prof. Dr. Klaus-Peter Berger, University of Cologne, adopts this name in its introducing remarks: "The new Lex mercatoria is online! The Transnational Law Database (TLDB) makes the new Lex mercatoria workable for every-day legal practice. It provides the hitherto missing link between the theory of transnational commercial law and international legal practice." 9 Berthold Goldman 'Frontières du droit et lex mercatoria', in: Archives de philosophie du droit 1964, 177-192; Clive M. Schmitthoff 'International Business Law. A New Law Merchant', in: 2 Current Law and Social Problems (1961), 129-142. The flood of literature on this subject is enormous and still rising. A comprehensive bibliography can be found on the website mentioned in n. 8. A recent overview in print is offered by Klaus Peter Berger 'Einheitliche Rechtsstrukturen durch außergesetzliche Rechts Vereinheitlichung', in: Juristen-Zeitung 1999, 369-377, who rightfully draws a connection to a parallel problem, i.e. the utilization of the lus commune, which shaped most continental legal systems up to around 1800 and beyond, for the shaping of the future European civil law or possibly even an European codification. Typical, however, is Berger's use of history. He polishes his introduction with a few"historical reminiscences" which are hardly more than a decoration and to which he does not return in his further arguments. Intense discussion of the theoretical implications of the Lex mercatoria debate can be found in two articles by Hans-Joachim Mertens, 'Lex Mercatoria: A Self-applying System Beyond National Law?', in: Gunther Teubner (ed) Global Law Without a State (1997), 31-44, and 'Nichtlegislatorische Rechtsvereinheitlichung durch transnationales Wirtschaftsrecht und Rechtsbegriffe', in: Rabeis Zeitschrift für ausländisches und internationales Privatrecht 56 (1992), 215-233. 10 For references to Christian von Bar and other critics of the modem Lex-mercatoria doctrine see Ursula Stein Lex mercatoria. Realität und Theorie (1995), 5 - 8 . The question is still discussed today with a vigour which makes it look as one of the "last issues of state doctrine" - ("letzte Fragen des Staatsgefühls"), as already mocked by Hans Großmann-Doerth 'Der Jurist und das autonome Recht des Welthandels', in: Juristische Wochenschrift 1929, 34473451. 11 The website mentioned above (η. 8) tries to lift these clouds by collecting citations of such standards in trade treaties, articles and court rulings from all over the world and bringing them into a systematic order - this process of arranging of course being much more than a mere sorting of material in an obvious order. International Trade Law certainly would gain

56

Albrecht Cordes

scholars of International Private Law for theoretical reasons. In defence of their theory, the supporters of International Trade law have used a historical argument, which even provided them with a name for their new matter: "Lex mercatoria". A law merchant such as that developing today, the argument states, had already existed in the Middle Ages 12 . Their suggestion that law develops without any national or transnational legislator having a word in the process demonstrates what dynamism the concept of a modern Lex mercatoria could unleash in times of globalisation of large areas of hitherto purely national law. Alas, the legal historian is forced to water the wine of Lex mercatoria euphoria and state that this use of a legal system of the past is both inconsistent and unhistorical. A similar problem results from current attempts to resort to the early modern lus commune for the purpose of creating a European order of private law 1 3 . In both cases the laws of the past are divorced not only from their theoretic but also from their social and economic context, and dragged into legal surroundings which are completely foreign to them. In these two cases the robor antiquitatis , the vigour of (old) age, seems to strengthen the authority of a set of legal rules. On the other hand it would be easy to draw up a list of examples in which the antiquity of a legal institute is used against its continuation or renewal because it is démodé , outdated. Whether the fact that a particular set of laws once existed speaks for or rather against its "return" 1 4 is an open question. In order to find an answer, one has to consider the reasons why it was renounced in its time and subsequently forgotten 15. The following expositions deal with the hypothesis which Harold Berman accentuated in the following way: consistency if its scholars would effectively agree upon an order into which their principles should be classified. 12 Rather typical Bruce Benson 'Customary law as a social contract: International commercial law', in: 3 Constitutional Political Economy (1992), 2: "International law is still largely independent of nationalized legal systems, retaining many of the basic (though modernized) institutional characteristics of the medieval Law Merchant." Alas, no examples for such a remarkable continuity are given. Benson is cited after Oliver Volckart and Antje Mangels 'Are the roots of the Modern Lex Mercatoria Really Medieval?', in: 65 Southern Economic Journal (1999), 427-450. This useful article adds to our legal perspective from an economic viewpoint and makes the extensive economic literature on this topic accessible. 13 Berger (η. 9) lists much of the literature on the subject; but see also the important volume by Pio Caroni and Gerhard Dilcher (eds) Norm und Tradition (1998). 14 Thus citing the title of the renowned and influential article by Theodor Mayer-Maly, 'Die Wiederkehr von Rechtsfiguren', in: Juristen-Zeitung 1971, 1 - 3 . 15 Klaus Luig 'Was kann die Rechtsgeschichte der Rechtsvergleichung bieten?', in: Zeitschrift für Europäisches Privatrecht 1999, 521-530, shows the ambiguity of the historical argument by using the textbook by Hein Kötz Europäisches Vertragsrecht, vol. 1 (1996) (also available in English translation by Tony Weir as European Contract Law, Vol. 1 (1998)) as example. Kötz uses historical evidence only to explain, illustrate or strengthen his points, and never to refute arguments derived from other forms of reasoning.

The search for a medieval Lex mercatoria

57

"The crucial period of change were the late eleventh and twelfth centuries. It was then that the basic concepts and institutions of modern western mercantile law - Lex mercatoria, 'the law merchant' - were formed, and even more important, it was then that mercantile law in the west first came to be viewed as an integrated, developing system - a body of law." 1 6 Accordingly, three features characterize the medieval Lex mercatoria: (1) its existence is not derived from any "national" - for the Middles Ages one should more accurately speak of "particular" 17 - legislator, (2) it is a body of law in the sense of a coherent system of rules, and (3) its most fundamental concepts and legal institutes originate in the High Middle Ages. The discussion of this threefold hypothesis will equally proceed in three steps. First of all, we will take a look at the historical roots of this unhistorical approach towards a "Lex mercatoria", a search which will lead us to England in the late thirteenth century. Secondly, on a purely theoretical level, we will examine from what point and to what degree one can speak of an independent body of law in the sense of a coherent set of merchant laws at all in the Middle Ages - a search which takes us to an impasse once we leave the spheres of Roman and canon law. And finally, as a third step, we will have to look at those spheres of law which really were important for medieval merchants; the opening example of the allegedly universal principle of payment of freight for an unfinished journey fits within that context. Yet, the research which has so far been undertaken in this field is by no means sufficient to tackle this question in a sufficiently thorough manner which would enable us to visualise the outlines of medieval commercial law. Especially in the various fields of substantive law the (envisaged) search for ubiquitous principles frequently leads into an impasse as soon as crucial details are examined. In the area of legal procedure the search proves to be more promising. This does not mean that a universal system of legal procedure did exist. But there is no doubt that merchants all over Europe had similar interests when confronted with court or arbitration proceedings, and that their specific interests were attended to. Compared with regular proceedings, this concerned in particular a more rational law of evidence and a swifter procedure for the summoning of defendants, which helped to speed up trials as a whole. (1) The earliest recordings of the term Lex mercatoria originate from this same area of legal procedure. They date back to late thirteenth-century England. The law book Fleta from around 1290 18 explains the writ of debt and describes in de16

Harold Berman 'Law and revolution: The formation of the western legal tradition (1983). 17 Karl Kroeschell 'Universales und partikulares Recht in der europäischen Rechtsgeschichte', in: Karl Kroeschell and Albrecht Cordes (eds) Vom nationalen zum transnationalen Recht. Symposium der Rechtswissenschaftlichen Fakultäten der Albert-Ludwigs-Universität Freiburg i.Brsg. und der Städtischen Universität Osaka (1995) 265-278. is HG Richardson and GO Sayles (eds) Fleta, 4 vols., 1955 -1984.

58

Albrecht Cordes

tail the rigid distribution of the burden of proof between plaintiff and defendant. In this context, it is a question of exceptions made in favorem mercatorum, in favour of the merchants. The plaintiff is granted a privilege by royal grace that under certain circumstances, namely in towns, at markets and between merchants, he may bring forward proof according to the Law merchant: . .quod parti affirmative secundum legem mercatoriam erit probacio " 1 9 . The plaintiff was permitted to support his claim with his own proof, as opposed to regulations in continental law. There the merchants doggedly fought for the permission to maintain the oath of office of the defendant, which the church, conceiving this as an invitation to perjury, wanted to restrict 20 . This striking difference is probably an early reaction to the developing system of writs which made claiming debts a difficult enterprise in England. Simultaneously, merchants on the continent were preoccupied with another problem: the danger to be subjugated to an uncertain and possibly perilous process of establishing proof through duels and other ordeals. If this assumption is right, the same rational attitude of merchants lead to opposing expectations and demands according to the legal system under which the merchants conducted business. It is safe to say that the Lex mercatoria in late thirteenth-century England was connected to a royal privilege, which partially freed the merchants from the rigid law of evidence of the common law. The law of evidence is also among the main subjects in a short treatise entitled "Lex mercatoria". It was written around 1280 and thus represents the earliest reference of this term to be found to date 21 . It was included in the Little Red Book of 19 The complete citation reads: "In paritate [... ] iuris prius admittatur defensor quam pars actrix in probacione. [... ] Et quod dicitur de secta ad vocem probandam dici potent de secta producta ad tallias probandas, contra quas sine secta prolatas simplici sacramento negans erit credendum. Secus tarnen erit in civitatibus et nundinis et inter mercatores, quibus ex gratia principis conceditur ob favorem mercatorum, quod parti affirmative secundum legem mercatoriam erit probacio concedenda, et ipsis conceditur tallias dedictas probare per testes et per patriam ", Fleta (n. 18), vol. 2, 1955, 211 f. The greatest disadvantage to the legal position of the merchants were the rigid conditions which the common law laid down for actions for debts for which no formal charter could be produced. 20 A first example of this dispute between church and merchants can be found in the early report of the monk Alpert of Metz to his principal, the famous bishop Burkhart of Worms (1018), in which he described the customs of the merchants of Tiel, the Carolingian trading post on the lower Rhine; Albrecht Cordes Spätmittelalterlicher Gesellschaftshandel im Hanseraum (1998), 55-70. It would merit further reflection whether it is indeed a question of two contrary solutions for one and the same problem, or whether the problems, i.e. the procedural situations, differ. At any rate, it is worth stating that even for this crucial issue in civil procedure, it is by no means evident that a similar doctrine had developed all over Europe under the rule of the "Lex mercatoria". 21 There are three editions of this source: Francis B. Bickley (ed) The Little Red Book of Bristol (1900), reviewed by L. Toulmin Smith, in: 17 The English Historical Review (1902), 353-357; Daniel R. Coquillette Incipit Lex Mercatoria, que, quando, ubi, inter quos et de quibus sit. El Tratado de Lex Mercatoria en el Little Red Book de Bristol (ca.1280 AD), in: Carlos Petit (ed) Del ius mercatorum al derecho mercantil (1997) 143-205; Mary Elizabeth Basile et al. (eds) Lex mercatoria and Legal Pluralism. A Late Thirteenth-Century Treatise

The search for a medieval Lex mercatoria

59

the city of Bristol, which owed its name, like many other medieval town books, to the colour of its cover and to its size. It contained a variation of entries regarding the law of commerce, among others one of the oldest copies of the famous Rôles dOléron, a collection of maritime laws from the west coast of France dating from the middle of the 13 th century. In this treatise, Common law is depicted as the mother of Lex mercatoria, who endowed her daughter with certain privileges: "Le χ communis , que est mater legis mercatorie et que suam filiam ex certis privilegiis et in certis locis dotav/i" 22 .Three differences between the two areas are named by way of direct contrast 23 . All three relate to speedier court trials and the simplified way of adducing evidence under the umbrella of the "daughter" Lex mercatoria. In other words, there are no traces of substantive merchant law to be found here. There is no mention of purchase deeds, methods of payment or fairs, nor of partnerships, trade companies, banks or insurance. In the perception of the treatise, as in the abovementioned passage in the law book of Fleta, Lex mercatoria is a set of rules regarding only the merchant coming before the court. Before carrying on with the search for a medieval Lex mercatoria on a theoretical level, it may be useful to continue with the history of the term up into early modern times. At the beginning of the seventeenth century, common law and the Lex mercatoria no longer appeared like mother and daughter, but rather like two hostile sisters. In 1622 the famous book by the merchant Gerard Malynes, entitled "Lex mercatoria or the Ancient Law-Merchant", was published in London 24 . Malynes penned his work as a party supporter in a contemporary dispute in judicial politics. It concerned the question whether or not mercantile affairs fell under the jurisdiction of the English Common law courts. The merchants were quite content with the court of Admiralty handling their cases, as had become common practice since the fourteenth century. At first, the court had only heard cases regarding the law of the sea, but under the protection of King Henry VIII. the court's competence had been extended to all trade matters, in which foreigners were involved. But at the beginning of the seventeenth century, in the course of the struggle for and its afterlife (1998), reviewed by Christopher McNall, in: 20 The Journal of Legal History (1999), 135-137. 22 Coquillette (η. 21), 215 f. 23

"Lex mercati differt a communi lege regni tribus modis ... "; ibid., Cap. 2, 208. The same intention, i.e. to satisfy the merchants' need for swift court procedure, appears a few decades earlier in the treatise 'De legibus et consuetudinibus Regni Angliae', traditionally attributed to Henricus de Bracton and dated into the first third of the 13 th c. Although there appears to be no mention of "Lex mercatoria", legal rules which reflect particular interests of merchants play a certain role in Bracton's treatise, which is conveniently accessible through the Internet edition of the Harward Law School, http://hlsl.law.harvard.edU/bracton//index.htm (9 t h Dec. 2003). The roughly twenty mentions of merchants deserve further examination. 24 Of equal interest is a later follower of Malynes, Wydham Beawes Lex mercatoria rediviva, or the Merchant's directory, being a compleat guide to all men in business (3 r d ed London 1771).

60

Albrecht Cordes

power between the Stuarts and Parliament, the court was suspected of being too close to the king. As a consequence, the competence of the Admiralty was reduced again in favour of the common law courts. In this situation, the merchants faced the challenge that they had to convince their new judges to apply the well-tried rules that had been in use at the Admiralty court. In order to achieve this, they argued their case by giving a new interpretation to the Lex mercatoria. They reasoned that this was a legal system that had been and remained in force in all countries and at all times, regardless of the will of any national legislator. Thus, the Lex mercatoria belonged to English law, even if it was not part of common law in a stricter sense. Therefore, the judges ought to take heed of the rules of the Lex mercatoria regardless of parties relied on this set of rules a court hearing. Malynes thus took part in a juridical debate that had been ignited when in 1610 the House of Commons had installed a committee whose aim it was to stop the king from introducing new trade duties without the consent of Parliament. If it could be proved that there existed a system of trade law which had evolved separately from common law and therefore separately from the will of Parliament, this could strengthen the king's point of view. The most important advocates taking part in the debate were James Whitelocke on the side of parliament and John Davies on the side of the king 25 . This line of argument did not convince the judges, but that is not our point. It suffices to say that it was not before 1600 that the term "Lex mercatoria" was used in the sense of a system of substantive trade law - used in this sense by English merchants as an instrument against the disliked common law. Mentioning the Lex mercatoria's respectable age in this context was quite evidently not meant to be a historical statement but an argument within a controversial legal discussion. Starting from here, the notion of the Lex mercatoria as a universal and uniformed system of law began a life of its own as became apparent in Lord Mansfield's argumentation from the mid-eighteenth century. For him, the doctrine of a universal trade law no longer served as a weapon in a war for the competence of the court. To him, it was a fact, backed by his own investigations - a vivid example of how historical "facts" come into being. These "facts" still influence today's discussion without ever having been examined from a critical historical perspective 26. Yet, Lord Mansfield is to be credited for integrating the rules of trade law into the com25 Their reasoning is described and explained thoroughly by Basile et al (η. 21), 125 — 154, esp. 132 f. and 139 f. 26 Through the work of Levin Goldschmidt (on this connection see n. 7), this thesis continues to influence today's debate about the modern Lex mercatoria - without ever having been tested thoroughly. The state of research on the medieval commercial societies may serve as an example: on the one hand there are comparative studies which do not prove the dogma of universal trade law but take it for granted and use it as a starting point. On the other hand, we have local or regional studies which are not aimed to lead to results on a larger scale. Typically, one pillar of the comparison is know well, the other one much less. On this problem and the very convincing exception of John Pryor's studies on Mediterranean trade companies in the Jewish, Muslim Byzantine and catholic societies see Cordes (η. 20), 10-51.

The search for a medieval Lex mercatoria

61

mon law and thereby fundamentally contributing to a new dynamism of the latter. For this reason, he is nowadays rightfully deemed to be the father of mercantile law in England. He has, to use the Little Red Book's terminology, reconciled mother and daughter. To sum it up: in the Middle Ages, the term "Lex mercatoria" is used in the context of advantages and privileges granted to merchants in the field of civil litigation. This is quite different from the modern sense of a system of substantive trade law that cannot be traced back any further than to the seventeenth century. In this sense, Lex mercatoria formed part of an English dispute about court competence in which the merchants argued that the Lex mercatoria was an integral part of the English lus Commune, i.e. the common law. Contrary to this, in contemporary Germany, trade law was not viewed as part of continental common law (in Germany: "lus commune - Gemeines Recht"), but as a specific legal system based upon privileges, a lus singulare 27. Therefore the sources on the continent refer to "lus mercatorum" instead of "Lex mercatoria": a set of subjective rights, of privileges, with the merchants as the bearers of special rights, instead of a system of law with "mercantile" as its description 28. Investigating the history of the term Lex mercatoria thus leads to a clear result: Lex mercatoria is not a term of European or international, but of English law. In English law, it stands for certain privileges in thirteenth-century legal procedure, maybe even for a separate system of judicial procedure. Until the seventeenth century, the term Lex mercatoria does not gain any meaning beyond that. (2) This outcome leads to another question: if the use of "Lex mercatoria" in the sense of a body of substantive trade law can not be traced back to the Middle Ages, did a widespread, cross-border legal system of this kind nevertheless exist, perhaps under another name or without any denotation at all - a system which may well have served as an example to the modern international trade law? Has there been a Lex mercatoria avant la lettre? The Lex mercatoria has occasionally been called a universal trade law 2 9 but this is not very convincing. Only two areas of medieval law could claim to be universal (in the eurocentric sense of the word of before 1492): canon law and imperial law, the law of the catholic church and the law of the Roman Emperor 30. From the late eleventh century, both were treated scholarly at Bologna and other northern Italian and French universities. As for the 27

Quite telling is the use of the plural "iura" mercatorum indicating that it was not a question of a single legal order but of a multitude of merchants' rights; Heinz Mohnhaupt 'Jura mercatorum* durch Privilegien, Zur Entwicklung des Handelsrechts bei Johann Marquard (1610-1686)', in: Gerhard Köbler (ed) Wege europäischer Rechtsgeschichte, Festschrift für Karl Kroeschell zum 60. Geburtstag (1987). 28 This difference between English and continental concepts of integrating trade law into the general legal system would also merit deeper reflection than can be offered here. 29 Goldschmidt (η. 7). 30 On the latter see Gerhard Dilcher 'Kaiserrecht. Universalität und Partikularität in den Rechtsordnungen des Mittelalters', in: Rivista internazionale di diritto comune 5 (1994), 211-245.

62

Albrecht Cordes

sphere of trade law, opinions differ greatly. It is even discussed whether a body of objective rules of law could have existed at all before 110031. Be that as it may, there is a consensus concerning one point: a theoretical concept of a substantive law of trade did not come into existence before the beginning of the twelfth century 32 . On the continent, the famous foundation charter of the market of Freiburg im Breisgau, located at the foot of the Black Forest, most likely from the year 1120, may well be one of the earliest examples for the term "lus mercatorum" to be used in the sense of a body of law 3 3 . Have elements of a juridical system of trade law developed from a practice of granting homogenous privileges to merchants by kings, dukes and bishops? Have other such elements emerged through a constant use in contracts through which they established themselves as custom34? For each of these two possible sources of trade law one example will be given. The merchants striving for privileges from the medieval rulers must have had distinct expectations, ideas and hopes as regards their content. Amongst other things, they referred to the legal position of other groups of merchants. For example, the Christian merchants asked the Emperor Louis the Pious, grandson of Charlemagne, to grant them the same privileges as their Jewish competitors. Thus, the status previously obtained only by Jewish merchants may have established itself as a standard expected by all groups of merchants35. The second example leads us to Northern Italy. As early as the tenth and Karl Kroeschell Deutsche Rechtsgeschichte 1 (bis 1250) (11 th ed 1999), 272. 32 Gerhard Dilcher 'Marktrecht und Kaufmannsrecht im frühen Mittelalter', in: Untersuchungen zu Handel und Verkehr der vor- und frühgeschichtlichen Zeit in Mittel- und Nordeuropa 3, 1985, 392-417; Karl Kroeschell, "Bemerkungen zum 'Kaufmannsrecht' in den ottonisch-salischen Markturkunden", ibid., 418-430; reprinted in: Karl Kroeschell Studien zum frühen und mittelalterlichen deutschen Recht (1995), 381-398. 33 Karl Kroeschell 'lus omnium mercatorum, precipue autem Coloniensium' in: Festschrift für Berent Schwineköper (1982), 283-290; reprinted in: Kroeschell (n. 32), 335346. On the other hand, in the Early and High Middle Ages - e.g. in the Ottonian market privileges - "lus mercatorum " is used in the sense of a personal right granted by the emperor or a prince, Kroeschell (n. 32) ibid. As around the year 1000 even the word lex " can have this subjective connotation, it cannot be ruled out that the continental "lus mercatorum" and the English "Lex mercatoria" both underwent this change from right to law, from an individual claim to an objective, supra-individual legal system. But this is only an assumption, as no evidence is available for a use of "Lex mercatoria" in the sense of an individual right. 34 Kroeschell (n. 17), 273, cites examples from three different areas, i.e. the law of sale, corporate law and maritime law. In Germany, it has recently become common to prefer the term "legal custom" (Rechtsgewohnheit) to "customary law" (Gewohnheitsrecht) in this context, following Kroeschell (n. 31), 212. The term "legal custom" may indeed be preferable, as it does not evoke any inappropriate connotations to learned doctrine (such as duratio longa and opinio necessitatis). Still, the shift in terminology has hardly led to a real breakthrough. The new term does not express much more than the fact that the phenomenon had not yet been grasped fully in terms of legal theory. A collection of articles on the subject has been published recently: Albrecht Cordes and Bernd Kannowski (eds) Rechtsbegriffe im Mittelalter (2003). 35 Cordes (η. 20), 64 f.

The search for a medieval Lex mercatoria

63

eleventh centuries, notaries in Genoa and Pisa drew up certain contracts in company law, namely the commenda contracts, in a fully standardized form. 36 Those formulas had most likely proved their practical merit; at the same time all participants must have become acquainted with them and have learned to conduct business using these standardized contracts. It is crucial in this context, though, that there is not the slightest hint that a privilege had to be granted in a certain way or that a contract had to be drafted with those standard formulas. This would have been a precondition for a fixed body of law. What was common were not the sets of rules but the interests and claims of the merchants, such as speedy trials, a more rational law of evidence, freedom of trade, a similar treatment of all groups of merchants, an established and reliable practice as regards the drawing up of contracts. There may have existed a widespread consensus that these patterns were useful, but there is no proof of a common conviction that they were legally binding. We could finish our reflections at this point with the conclusion that we have detected yet another example of a superficial use of history, motivated by an attempt to back a certain line of argument in favour of one side in a current juridical discussion, but not supported by evidence from historical sources. But this discovery does not bear any fruits for the discussion about the future of international trade law. The question whether an old Lex mercatoria existed 350 or 700 years ago can do little to influence the outcome of a dispute about the theoretical basis and practical value of a 21 st century law of merchants as a separate body of law which is not linked to any domestic law. 37 But to finish here solely for the reason that the historical arguments prove to be of little value in this modern debate, would mean to allow today's law to dictate the topics and limits of historical research. If indeed legal historians would restrict themselves to questions which are of direct use for contemporary jurisprudence, they would loose sight of the most interesting and significant spheres of those legal ideas which the merchants themselves contributed to before modern times. To overcome the dogma of a widespread and uniform Lex mercatoria is like breaking free from a chain. The perspective then broadens; the loss of a clear pattern is counterbalanced by a gain of colourful details that have been suppressed before. Phenomena can now be observed which, due to their strangeness, complexity and lack of contours, may puzzle a jurist who is simply searching for the dogmatic roots of a system of law.

36

Max Weber, Zur Geschichte der Handelsgesellschaften im Mittelalter. Nach südeuropäischen Quellen (1889, reprint 1964); John H. Pryor Commerce, Shipping and Naval Warfare in the Medieval Mediterranean, (1987); Albrecht Cordes 'Gewinnteilungsprinzipien im hansischen und oberitalienischen Gesellschaftshandel des Spätmittelalters', in: Köbler and Nehlsen (n. 4), 141 f. 37 Legal history also has a disappointment in store for those believing law cannot come into existence without state power. This is easily falsified by the fact that the state as historical phenomenon is much younger than law. Amongst the fields of research in medieval and early modern legal history, state-made law is rather a secondary phenomenon.

64

Albrecht Cordes

(3) When examining further the medieval law of merchants and trade, one would have to go deeper into the different aspects of life and law that were influenced by these merchants, such as the law of shipping and of transport, of fairs and of transfer of payments, of trade guilds and societies. As became apparent when examining the English Lex mercatoria, procedural law would play an important role in commercial courts. All these questions would merit to be examined on a comparative basis. Great care should be taken in establishing a method of comparison 38 as the uncritical application of the Lex mercatoria doctrine has often led to uncertain assumptions of uniformity, frequently made by exaggerating similarities and diminishing differences 39. In this new approach, fundamental differences between the European regions would have to be taken into account. One would have to distinguish clearly between influences based on relations on the one hand and similar but independent developments on the other. Such comparative studies could then become the nucleus of the search for a medieval Lex mercatoria. However, until today, only few detailed works that fulfil these requirements have been published. To cover the entire subject would be too much work for one person alone. It should serve as a warning that Levin Goldschmidt made three such attempts, all of which remained unfinished. It will therefore be necessary to limit individual research to particular sectors of the law, concentrating on those essential themes and on the chief legal institutes, of which the availability of sources and the work already done raises hopes for a fruitful comparison. Procedural law in mercantile cases is the most ancient and most important of these subjects. As has been mentioned above, the oldest evidence for the use of the term Lex mercatoria pointed to this context, but the most ancient privileges for merchants regarding court procedure date even back to the Carolingian era. A merchant's legal position and his position before the courts are hardly to be separated in terms of the medieval notion of law. Within a population predominantly consisting of peasants and knights, the merchant is a stranger - not only metaphorically because of his different way of life, but also literally, since he had to seek justice and defend his rights before foreign courts, especially in the earlier, orally orga38 The methodical preconditions for such a historical comparison of law were discussed at the German Congress of Legal Historians (Deutscher Rechtshistorikertag) at Regensburg in 1998; the six presentations on this topic were published together with an introduction by the section's president, Mathias Reimann, in: Zeitschrift für Europäisches Privatrecht 1999, 494-569. 39 Apparently, comparative law scholars are willing to accept such a "praesumtio similitudinis", Konrad Zweigert 'Die "praesumtio similitudinis" als Grundsatzvermutung rechtsvergleichender Methode', in: Mario Rotandi (ed), Buts et méthodes du droit comparé (Inchieste di diritto comparato 2), (1973), 735; Konrad Zweigert and Hein Kötz Einführung in die Rechtsvergleichung (3 r d ed 1996), 39 (translated by Tony Weir as An Introduction to Comparative Law (3 r d edn. 1998); Berger (η. 9) 370. For medieval legal history such an assumption is to be judged as highly problematic since it may influence the results of a comparative study. See Albrecht Cordes 'Was erwartet die (mittelalterliche) Rechtsgeschichte von der Rechtsvergleichung und anderen vergleichend arbeitenden Disziplinen?', in: Zeitschrift für Europäisches Privatrecht 1999, 544-552 (548 f.).

The search for a medieval Lex mercatoria

65

nized phases of trade history 40 . In this field, the law of evidence played the most important role. What kinds of privileges the merchants desired depended significantly on the civil procedure of the courts in the area in which the merchants were conducting their trade. Within the rigid common law system of actions based on fixed writs, their main goal was to extend their options as plaintiffs to submit evidence, in particular for claims for money debts under the writs of debt and covenant. On the continent, we see merchants who mainly strive to be allowed to defend an action by their oath without having to resort to other parties to confirm that oath. An important topic in substantive law concerns the history of trade companies. Willy Silberschmidt, a pupil of Levin Goldschmidt, devoted a monograph to this topic in the early twentieth century 41. This remained the only attempt to apply Goldschmidt's universal approach to a distinct topic, and to verify this approach through time and space, starting with Germanic sources and ending in contemporary Malaysia. He chose the Italian commenda contract whereby one partner of a joint venture travels over sea and trades the common goods while the other stays at home and is involved only as an investor. Silberschmidt generalized both the outline of the contracts and the definition of commenda and, not surprisingly, "rediscovered" these in all the regions he examined. When one takes a closer look, certain doubts arise whether Silberschmidt has not just oversimplified the matter 42 . As subsequent research has established what, hopefully, can be described as a reasonably firm foothold on the Hanseatic trade ventures, a renewed comparative study with also extends to the Mediterranean types of trade companies would probably make a promising field of research. Similar results are to be expected regarding many fields of maritime law, e.g. the legal treatment of jettison. Is it not obviously a classic example of unchanging law that the group on board of a ship, forged together by a common danger of life, also become a group which bears joint liability in case of peril, if the goods belonging to one member are sacrificed for the sake of the others? But who exactly is part of that community? Is it limited to the merchants or does it extend to the skipper? And what about the ship owner? Does he have to reimburse part of the value of the goods which were sacrificed, on the ground that his ship was saved in the process? Can he, conversely, claim part of his damage from the merchants whose goods were saved when the mast was cut down to save the ship in heavy weather? The various maritime laws in Europe provided very different answers to these 40 Claudia Seiring Fremde in der Stadt (1300-1800). Die Rechtsstellung Auswärtiger in mittelalterlichen und neuzeitlichen Quellen der deutschsprachigen Schweiz (1999) (reviewed by A Cordes, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 117 (2000) 720-722), dedicates the extensive second chapter of her book to the merchants (15-79). 41 Willy Silberschmidt Beteiligung und Teilhaberschaft. Ein Beitrag zum Rechte der Gesellschaft (1915). « Cordes (n. 36), 146 f. 5 Piergiovanni

66

Albrecht Cordes

questions43; again, one encounters that there at least two different ways to solve such conflicts of interests. The same applies more or less to the opening example from the law of freight. Lord Mansfield's comparative study was not entirely correct, at least not as concerns the law of Lübeck. It was not the principle of dividing the freight to correspond to fraction of the journey that was covered ("Teilfracht" - proportional freight) which was applied in Lübeck, but rather the simple principle of halving the freight ("Halbfracht" - half freight). In August 1488, almost 300 years before Lord Mansfield's judgement, the council of Lübeck decided the case of skipper Poppe Claussen against the two merchants Hans van Ryme and Hans Leyfferd. The skipper had sued the two defendants for his freightage. His journey from Kampen 44 in the Netherlands to the Hanseatic Kontor in Bergen had gone well, but on his way back, Claussen's ship burned through no fault of his own. Half of the goods could be saved, and for the lost goods the merchants were not obliged to pay any freightage - as in the case of Luke v. Lyde . But, as opposed to Lord Mansfield, the council of Lübeck did not relate to the fraction of the journey which had been covered when the accident took place. Instead, the council decided on the basis of a more rigid principle: "(For that reason) the merchant is obliged to pay half 45 of the freightage." 46 It cannot be ruled out that this is an earlier stage of the development of the law of freightage. Perhaps there existed a general tendency to abandon the more rigid, but also more usable principle of half freight in favour of the more flexible and in a way fairer principle of proportional freight 47 . But Lord Mans43 These question and their solutions for the North Sea and the Baltic Sea in the Middle Ages are discussed by Götz Landwehr Die Haverei in den mittelalterlichen deutschen Seerechtsquellen (1985), in particular at 44. According to Landwehr, the older North European law did not include the skipper in the risk-bearing community. However, by the thirteenth century, the opposite principle appears to have been established, possibly under Mediterranean influence. A connection could be assumed between this change on the one hand and the tendency to replace the older principle of half freight by the more modern one of proportional freight on the other; Landwehr (η. 4), 599. The most recent account of Hanseatic maritime law is given by Antjekathrin Graßmann and Carsten Jahnke (eds) Seerecht im Hanseraum des 15. Jahrhunderts. Edition und Kommentar zum Flandrischen Copiar Nr. 9 (2003). 44 Kampen owes its crucial importance for the system of Hanseatic trade routes to its strategic location at the mouth of the IJssel river, the northernmost branch of the river Rhine, into the Zuiderzee. Here the goods were unloaded from barges and loaded onto seagoing vessels. 45 Landwehr (η. 4). The concept of the division into equal parts, which is of major importance for the legal thinking in the Hanseatic world, finds another application in this context. Other examples are the halving of gains in commercial societies, Cordes (η. 36), the duty to give half the gain of stranded goods to the lord in England, and also the name which Hanseatic pirates gave to themselves: "Likedeeler - equal dividers". « Wilhelm Ebel Lübecker Ratsurteile, Vol. 1 (1955), 205, Nr. 321. 47 I am grateful to Götz Landwehr for this information, which is based on his yet unpublished work on the history of the carriage contract. See Landwehr, above (n. 4 and 43), and his article on 'Seerecht', in: Handwörterbuch zur deutschen Rechtsgeschichte, Vol. 4 (1990), 1596-1614.

The search for a medieval Lex mercatoria

67

field's "one and the same law" that according to him existed in all countries and at all times in an identical form, did not even exist in the field of the maritime law of freight, which is a central field of the alleged "Lex mercatoria". A body of international rules of law as postulated by Harold Berman can be detected only by choosing to focus on overly general issues. When taking a closer look at the institutes of commercial law, one will in most cases discover at least two competing legal concepts and solutions. If the search for the medieval roots of the term Lex mercatoria led to quite clear results, the search for the laws shaping the merchants and their trade still lies before us. Its outcome is open.

CHARLES DONAHUE, JR. f

Benvenuto Stracca's De Mercatura : Was There a Lex mercatoria in Sixteenth-Century Italy? I. Introduction It has been too confidently assumed by most writers that the law merchant1 arose in Italy in the central part of the Middle Ages, was chiefly founded on Roman law, and was carried by the traders of that country ... into every country which they penetrated. That the law merchant was indeed the law of the merchants is true enough, and so is the assertion that it was applied to all transactions of a mercantile character between merchants, particularly at the great international fairs . . . . But the assumption that the law originated with the Italian merchants is more than disputable. International trade is in some measure a constant thing. Although a great revival took place after the new contact with the East which was made by the Crusades, commerce at that time simply changed hands, leaving the Arabs, who had dominated the Mediterranean for about two hundred years, and being undertaken by the Italians and to some extent by the French, and later by British and Norwegian merchants. ... But before the Arabs came the Romans, and before the Romans the Greeks, and before the Greeks the Phoenicians. ... But even these probably did not originate all which may at first sight appear to be their work. ... We read of travelling merchants from the times of Jacob and Isaac, of the kings of Arabia, and of the wealthy Queen of Sheba in the days of Solomon, and of the trade with Dedan, Aden and Saba when Tyre was at its greatest and nearing its doom.2 f Copyright ® 2004 Charles Donahue, Jr. 1 merchants. Throughout, except where noted, standard abbreviations are expanded silently, and paragraphing, punctuation and capitalization are modernized. Additions are indicated by square brackets; deletions by diamond brackets. Citations are modernized and put in square brackets, except where they have not been identified. Readings that are corrected in the text, like the one here, are given in the notes in italics. 2 W. A. Bewes, The Romance of the Law Merchant (London, 1923), 1 - 2 , 4. The Biblical references are: Gn 10:7 (Dedan); Gn 25:3 (Dedan); Jer 49:8 (Dedan and Edom); Ez 27:20 ("Dedan traded with you [Tyre] for saddle cloths"); Ez 27:23 ("Haran, Canneh and Eden [i.e., Aden], the merchants of Sheba, Asshur and Chilmad traded with you [Tyre]"); Ez 38:13 ("Sheba and Dedan, the merchants and all the magnates of Tarshish will ask ....").

Charles Donahue, Jr.

70

The author of this quotation is Wyndham Anstis Bewes (1857-1942), barrister of Lincoln's Inn, secretary of the Grotius Society and International Law Association, and author of a number of works on international and commercial law, including, probably his best-known and from which this quotation is taken, The Romance of the Law Merchant (London, 1923).3 Bewes's was not a legal mind of the first rank. He does not appear in Simpson's Biographical Dictionary of the Common Law. His work, however, nicely illustrates a debate that has been going on for centuries: What is the relationship between mercantile law, sometimes called "the law merchant," and the English common law? Bewes's answer is that mercantile law is utterly other from the common law. It is a transnational body of law that, to use an example from another author in this tradition, goes back to Abraham's purchase of a field from the Hittites in the twenty-third chapter of Genesis. 4 It was developed by the Phoenicians, the Greeks and the Romans, then by the Arabs, and finally by the Italian merchants of the Middle Ages. From there it passed to all countries of the west through the great international fairs, Saint Denis and Champagne, but also St. Ives and Winchester. The historian can ask a number of questions of Bewes's account. In the first place, is it supported by the evidence? Whether it is depends on what you mean by "supported." That the twenty-third chapter of Genesis tells a story of Abraham buying a plot of land from the Hittites is undeniable. Whether the author of Genesis is describing with any accuracy an historical event is at best questionable. Even more questionable is the line that Bewes draws from the undeniable facts of trading in the Ancient Near East and of trading in the Middle Ages to the development of a modern body of law that governed that trading. The historian might also ask why anybody would be telling this questionable story in 1923? A hint as to the answer to that question is given in the foreword to the book by Lord Justice Atkin, one of the most distinguished appellate judges of his day, and a former commercial law barrister. 5 The book, he said, "will ... not only create an interest in the past, but give a vision of the romance that attends the commerce of the present." 6 Even after the Great War the social position of the man of commerce was insecure; he must be endowed with romance, given a history to match that of the lord or the knight or the country gentleman. Justice Atkin offers another lesson from the book: "It is, perhaps, fortunate that the law-makers of former days took little interest in the rules of commerce . . . . As a result, traders made their own rules and administered them summarily in their own courts, with the 3 See Who's Who: An Annual Biographical Dictionary (London, 1941), s.n. Gerard Malynes, Consuetudo, vel, Lex mercatoria: Or, the Ancient Law Merchant, 1 st ed. (London, 1622), p. 2. 5 A. W. B. Simpson , ed., Biographical Dictionary of the Common Law (London, 1984), s.n. Atkin, James Richard 4

6

Bewes, above, note 2, at iv.

Benvenuto Stracca's De Mercatura

71

tacit or express approval of the Sovereign. Such rules have in the course of ages crystallised into law ... ." 7 This tendentious use of the history of the "law merchant" is with us to this day. A group of authors, including a Nobel laureate in economics, solemnly assure us: "[B]y the end of the 11 th century, the Law Merchant came to govern most commercial transactions in Europe, providing a uniform set of standards across large numbers of locations . . . . It thereby provided a means of reducing the uncertainty associated with variations in local practices and limited the ability of localities to discriminate against alien merchants . . . . Thus, 'commercial law can be conceived of as coordinating the self-interested actions of merchants, but perhaps an equally valuable insight is gained by viewing it as coordinating the actions of people with limited knowledge and trust' ... ." 8 There is a third approach that an historian might take to Bewes's text. Originality was not his forte. By the time he wrote the trope of tracing the history of the law merchant back to the Hebrew Bible had a long and respectable history. The first example in English may be Gerard Malynes's Consuetudo sive Lex mercatoria, first published in 1622. Malynes was a merchant, not a lawyer. He sought to have mercantile cases treated independently of the common law. In order to make his argument he had to confront the argument of some of the common lawyers that the common law was of venerable antiquity. It had been the law of England, they argued, since the time of Julius Caesar, perhaps before. There were two answers to this argument. The first, proposed somewhat later by the doctors of civil law who sought commercial cases for their courts, was that the law merchant was of equal antiquity, being derived from Roman law in which they were specialists.9 Malynes does not make that argument, though he is perfectly willing to draw on Continental material. He distances himself from the civilians, however, by arguing that the law merchant is the creation of merchants and, indeed, of greater antiquity even than Roman law. It goes back to Abraham, or, at least, to the sale of Joseph to Potiphar by the Midianite traders. 10 Our second quotation takes a different approach: 11 What then is this law merchant which opposes itself to the common law and dominates it? and whence does it come? As a matter of fact, and not merely of phrase, may we not even ι Id., at iii. 8 P. Milgrom, D. North and B. Weingast, "The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges, and the Champagne Fair Courts," Economics and Politics, 2 (1990) 5 (emphasis deleted). The sources that they cite are equally tendentious and unsupported by any critical work in the primary sources. 9 See M. Basile, J. Bestor, D. Coquillette, and C. Donahue, Lex Mercatoria and Legal Pluralism: A Late Thirteenth-Century Treatise and its Afterlife (Cambridge [MA], 1998), pp. 139-46. 10

Malynes, above, note 4, at 2. J. S. Ewart, An Exposition of the Principles of Estoppel by Misrepresentation (Chicago/Toronto, 1900), 373-4, 375 (emphasis in original). 11

72

Charles Donahue, Jr. ask whether there is a law of merchants, in any other sense than there is a law of financiers or a law of tailors? Frequent use of the word has almost produced the impression that as there was a civil law and a canon law, so also there was somewhere a "law merchant," of very peculiar authority and sanctity; about which, however, it is now quite futile to inquire and presumptuous to argue. If the custom of merchants as to bills of exchange was recognized by the courts, so also has the custom of financiers as to the "negotiability" of bonds and scrips been recognized; but no one would think of referring to the "law financier" in speaking of that "negotiability." The custom of financiers, as of social clubs or other organizations or coteries, is observed and enforced by the law; not because the financiers or clubs enacted or had power to enact laws, but because it is with reference to those customs that the parties have acted or contracted; and it is with reference to them, therefore, that rights and liabilities ought to be adjusted. When these or any other customs obtain general acceptance by the community they then pass into and for the first time become laws. ... Judge-made law (not merchant-made), with Lord Mansfield as chief builder, is what we have here.

The author of this quotation is John Skirving Ewart (1849-1933). Ewart was associated with the University of Manitoba in Winnipeg. He too was interested in international law, but he published widely. The quotation is from his chief claim to legal fame, An Exposition of the Principles of Estoppel by Misrepresentation (Chicago/Toronto, 1900), a 548-page treatise that never saw a second edition. Ewart's answer to the type of argument that we find in Bewes is less dependent on history and more on jurisprudential assumptions.12 There is, however, some history in what he argues. Mercantile law, he tells us, is not like civil law or canon law, a system of law that can be determined from a body of legal literature. If we have his jurisprudential assumptions right, however, that fact (the factual nature of which is controversial but probably accurate) makes no difference. Even if there were a body of legal literature that outlined a systematic law merchant, it still would not be law until it became the command of a sovereign; until then, it was a body of rules, but it was not law. Ewart's positivism has some late nineteenth-century overlays. In the AngloAmerican legal system the way rules become commands of the sovereign is not normally by legislation, but by their elaboration by judges in common-law courts. And in private law, judges do not determine what might be a good principle or a good policy to apply to the situation at hand; rather they implement the will of the parties. In the case of bills of exchange, the parties had obviously contracted with 12 Ewart's argument received a response from a Bewesian perspective: F. M. Burdick, "What is the Law Merchant?", Columbia Law Review, 2 (1902) 470-85, repr. as "Contributions of the Law Merchant to the Common Law," in Association of American Law Schools, ed., Select Essays in Anglo-American Legal History (Boston, 1909), 3:34-50. Ewart replied in an article also entitled "What is the Law Merchant?", Columbia Law Review, 3 (1903) 135 - 54. See Basile et al., above note 9, at 171- 2.

Benvenuto Stracca's De Mercaura

73

reference to the custom of merchants. When the courts accepted these customs and enforced them, they became law. This happened under Lord Mansfield. This last historical statement is not correct. The acceptance by the common-law courts of what was called the custom of merchants with regard to bills of exchange occurred earlier than Lord Mansfield, in the second half of the seventeenth century. Nor is there any evidence that the courts which did it employed the justification that they were simply enforcing the terms by which the parties had contracted. Ewart's thumbnail sketch, however, of a process by which the courts first inquired into custom and then accepted those customs as law is confirmed by the most recent study of the topic. 13 That same study also seems to accept Ewart's Austinian assumptions: until the courts did this, the author argues, there was no law; there was just mercantile practice. Before we draw the conclusion, however, that Ewart was right and Bewes was wrong, let us recall that the same seventeenth century that saw the acceptance of mercantile custom with regard to bills of exchange as part of the common law was also a century in which the status of the law merchant with regard to the common law was controversial. We cannot ignore the tendentious uses of the term lex mercatoria in the seventeenth century. For whatever reason (and the reasons varied considerably), a wide variety of common lawyers, civilians, and merchants thought that there was something called lex mercatoria , and that view is important not only for the political discourse of the period, but also, it would seem, for the way in which the common lawyers viewed what they were doing when they pleaded according to mercantile custom and called in mercantile jurors to find out what the rules were. It also, one must imagine, affected what the merchants thought they were doing when they served on such juries. 14 What if we go back to the period with which Bewes was most concerned, the Middle Ages? There, if our reading of an anonymous late thirteenth-century English treatise called Lex mercatoria is correct, 15 the relationship between common law and mercantile law was also controversial. But the terms of the controversy were different. We do not find anyone in the Middle Ages arguing that lex mercatoria is part of a transnational body of law, though the fact that alien merchants would agree to abide by it suggests that there was at least some legal lingua franca by which overseas trade was conducted. Nor do we find, until the end of the Middle Ages, anyone arguing that mercantile law is derived from Roman law, or the law of nature, or the law of nations. What we do find is someone arguing that mercantile law is at once part of the common law and independent of it. Mercantile law, the author of our treatise tells us, is the daughter of the common law, but she has been endowed by her mother and is quite capable of managing on her own. He also says in another place that mercantile law arises out of the market, like the 13 J. S. Rogers, The Early History of Bills and Notes (Cambridge [Eng.], 1995). 14 Basile et al, above note 9, at 123-62. 15 Lex mercatoria, in id., at 1 -40.

74

Charles Donahue, Jr.

morning mist in the Smithfield horse market. 16 Though more down-to-earth than Wyndham Bewes, our 13th-century author seems at times to have been affected by the romance of the law merchant. We are less well informed about what the argument on the other side of the debate was like in the thirteenth century. It seems unlikely that Austinian positivism was the counter-argument. It probably was based on the perceived limits on the franchises by which the mercantile courts were held. So how should we think about this debate that now seems to be at least seven hundred years old? Should we ask, as we have tried to ask in our book, how it was that differences in context over the course of time made a debate, which frequently uses the same terms, quite a different debate in each period, one in which to the extent that history was employed it must necessarily be employed anachronistically? Or should we, as we tried to do in the conclusion to the book, seek to escape from the terms of the debate by turning to legal anthropology? Or should we focus, as do a number of modern historians, on who was right? I am not sure that I have anything to add to what we said about the first and second questions in the book. I would like to devote this paper to the third question: Was there a lex mercatoria in the medieval and early modern periods? The question, as we already have seen, raises large issues of definition. If we ask simply whether the phrase lex mercatoria would have been comprehensible in the medieval or early modern periods, our answer must be "yes," at least in northern Europe. The phrase was in quite frequent use there from as early as the thirteenth century. 17 In southern Europe, however, the phrase was not nearly so common. I will not say that it does not appear in Benvenuto Stracca's 18 De mercatura (1 st ed. 1553), generally thought to be the first comprehensive treatise on mercantile law, but a reasonably careful reading of that sprawling work has failed to disclose it, nor has an examination of a number, though by no means all, of Stracca's sources revealed that the phrase is found in the writers of ius commune, be they writing in the tradition of the commentators or in that of the humanists. This fact should give us pause, for all the standard accounts assign a particular place of prominence to the late medieval and early modern Italians in the development of lex mercatoria . Another absence that should be recorded at the outset. No general collection of customs of merchants survives from the medieval or early modern periods. In this 16 Id. 9, 1, in id., at 18, 1. 17

Hence, it is unlike "feudalism," another term that has proved controversial in our time. The fact, however, that it is lex mercatoria rather than ius mercatorium or mercatorum suggests an origin among those who were not totally familiar with the lex/ius distinction. Cf. Johannes Marquardus, De iure mercatorum et commerciorum singulari (Frankfurt, 1662). 18 Following standard U.S. library practice, I have used the vernacular form of the names of late medieval (after 1300) and early modern jurists, except where I am quoting from the Latin. The Latin form remains in the footnote references.

Benvenuto Stracca's De Mercatura

75

regard lex mercatoria stands in marked contrast to the ius maritimum that was collected in such works as the Rhodian sea laws (probably from the early middle ages), the Llibre del Consolât de mar (published in the 15 th century but clearly containing much older elements), or the compilations of maritime law from the Atlantic and Baltic coasts, of various dates, some of which go back at least to the thirteenth century. 19 While the provisions in these collections vary considerably among themselves, even within a given maritime area, there are common elements in them that allow us to say that they probably reflect a body of customary usages that spread across given maritime areas, with each area, at times, influencing, and borrowing from, the others. This much we can say about maritime law. Much, however, needs to be done. We are still relying, in many cases, on nineteenth-century editions of the texts, editions of indifferent quality. Little modern work has been done tracing similarities and influences from one body of texts to others. The court records of different areas need to be compared to determine whether the similarities in the written customs were in fact reflected in practice. Practically nothing has been done to bring to bear our much more sophisticated understanding of how commerce in these areas was conducted on both the rules reflected in the customs and those that are reflected in practice. It may well turn out that the modern rules about contracts of affreightment (charter parties), bills of lading, salvage, general average, and the hiring and conduct of mariners are not nearly so old as some would have us believe. It may also turn out that the role of legislation (for we have no better term) was more important than that of custom in developing these rules. At least, however, we have the material with which to conduct the study. I am not sure that the same can be said of lex mercatoria , which I will here define as the legal rules that govern the financing and conduct of commerce, independent of the carriage of goods by sea. What survives from the middle ages by way of custumals are a few from specific courts - two, for example, from the fair courts of Champagne and one from the Consolato del mar in Catalonia, and the one referred to above that purports to describe the procedures in all of the mercantile courts of England.20 Beyond that there are quite a few records of court proceedings, contentious matters such as are found in the rolls of the fair court of St. Ives, or registrations of transactions, such as are found in the Schuldbuch of the 19

E.g., the so-called "Rolls of Oleron," the "Laws of Visby," and the "Laws of Lübeck." Convenient editions of these (of indifferent quality) may be found in T. Twiss, ed., Monumenta Juridica: The Black Book of the Admiralty, Rolls Series [55], vols. 3 - 4 (London, 1874-6). 20 Félix Bourquelot, ed., in Etudes sur les foires de Champagne, sur la nature, l'étendue et les règles du commerce qui s'y faisait aux Xlle, XlIIe et XlVe siècles, Mémoires présentés par divers savants à l'Académie des inscriptions et belles-lettres de l'Institut impérial de France. 2. sér., t. v, pt. 1 - 2 (Paris, 1865), 2:321-71; Germà Colon and Arcadi Garcia [/ Sanz], ed., Llibre del Consolât de Mar, 1 (Barcelona, 1981) mm. 1 - 4 5 , pp. 17-43; Lex mercatoria, in Basile et al., above note 9, at 1 -40.

76

Charles Donahue, Jr.

mercantile court of Hamburg. 21 Beyond that still are innumerable records of transactions, most of which did not prove contentious.22 Prior to Stracca's De mercatura, there seems to be no attempt in the west to state generally the body of rules that apply to mercantile transactions. Many individual rules can be derived from the statutes of particular cities and towns; some can be derived from what is stated in passing in the custumals of courts; still others can be inferred from the results in litigated cases and from the records of transactions. But there is no book that begins, "These are the good constitutions and the good customs that concern matters of merchandise, which wise men who traveled over the world communicated to our predecessors who composed therewith books of the science of good customs." This is the beginning, with the substitution of "sea" for "merchandise," of the early printed edition of the Llibre del Consolât de mar. 23 Negative evidence is dangerous. It is possible that there was a body of mercantile customary law as coherent as the maritime law found in the Llibre del Consolât de mar that was passed on orally from merchant to merchant or from mercantile judge to mercantile judge. There certainly must have been common understandings as to the effect of various kinds of transactions; otherwise, commerce could not have existed. It is striking, however, that in the period from 1100 to 1550, when so many other customs were written down, these, so far as we know, were not. Dare we apply the adage: De non apparentibus et non existent ibus eadem est ratio? If such a body of law existed, it would have been in the nature of customary law, and customary law is a complex and difficult phenomenon. Many anthropologists would argue that once a body of customary law is written down, it is no longer customary law. True customary law, they would argue, is held in the memory, and the fact that it is held in the memory allows those who are subject to it to believe that it is unchanging while, at the same time, it is constantly being changed to meet new situations and to resolve new disputes. If this is right, then the redactions of customary law that occurred over the course of medieval and early modern periods transformed customary law into something else. We may accept this argument, but the point here is somewhat different: The fact that a body of customary law was redacted tells us something about the nature of the customary system that underlay the redacted custom. It was, we might argue, reasonably coherent and reasonably comprehensive. There was some underlying structure or system, however different 21 C. Gross, ed., Select Cases Concerning the Law Merchant. I: Local Courts, Seiden Society, 23 (London, 1908); E. von Lehe, ed., Das Hamburgische Schuldbuch von 1288, Veröffentlichungen aus dem Staatsarchiv der Freien und Hansestadt Hamburg, 4 (Hamburg, 1956). 22 A selection of these are conveniently gathered in R. S. Lopez and I. W. Raymond, ed., Medieval Trade in the Mediterranean World (New York, 1955). 23 Llibre del Consolât de Mar, above, note 20, m. 46, p. 44 (the custumal of the early printed ed. is preceded by an ordo of the court in the manuscripts). The translation is borrowed (with alterations) from Twiss, above, note 19, at 3:51.

Benvenuto Stracca's De Mercatura

that structure or system might be from that of the Roman institutional treatises. In short, a redactable customary law is one that could have been used, even before redaction, to resolve new issues and new disputes by whatever the underlying, and almost always unstated, rules of argument in the system might have been. There is reason, we might argue, to believe that such a system of customary law underlay the rules that were redacted in the Llibre del Consolât de mar, that such a system of customary law underlay the rules that were redacted in the innumerable customary jurisdictions of the northern two-thirds of France, and that such a system of customary law underlay - and this must be more controversial - the rules that we find expressed in the Treatise on the Laws and Customs of the Realm of England ascribed to Glanvill. But there is no evidence that such a system of customary law underlay Lex mercatoria , the anonymous treatise on proceedings in English mercantile courts discussed above. Rather, what we have in that treatise is a description of how to conduct a certain kind of court, a court that varies somewhat in its procedures from those of the central royal courts and the other secular local courts of the period. The variations are the product of particular mercantile customs. We need not argue here whether those customs were the creation of the merchants or of the judges of the courts, but they clearly responded to the perceived needs and desires of the merchants. But those customs did not add up to a body of customary law. The default rules of proceeding in these courts (i.e., the rules that were used when there was no specific rule covering the situation) were not provided by an accepted body of mercantile procedural rules, nor were procedural controversies resolved by arguing from one mercantile custom to another according to the rules of argument of mercantile customary law. The default rules of proceeding, the structure that made argument possible, the rules by which argument proceeded, were all supplied by the common customary law of the realm of England, with some additions from the common elements in the procedure of local courts in the same country. 24 That proposition, for the demonstration of which I refer you to our book, immediately raises the question whether there might be something different about England. The precocious development of the English legal system in the twelfth and thirteenth centuries is well known. It could be that by the 1280's, when Lex mercatoria was written, the common law had already overwhelmed the customary law of merchants as it had, for a large part, overwhelmed the customary law that we suspect had previously existed in different regions of England and as it was in the process of overwhelming the customary law of particular localities. Perhaps if we looked to sources outside of England we would find evidence of a customary body of law of merchants, one that had already yielded in England to the greater force of the common law. Such an undertaking is fraught with difficulty because of the intractable nature of the sources. For the high middle ages the Continental sources are all local and 24

Lex mercatoria, in Basile et al, above, note 9.

78

Charles Donahue, Jr.

particular. None of them attempts to cover the entire field of mercantile law, and none of them attempts a geographical reach as broad even as that of our thirteenthcentury English treatise. 25 Most, such as the records of court judgments or those of actual transactions, require that the researcher infer from the record what the underlying rules might have been. We will not argue that a careful comparison of this widely scattered material might not reveal a common body of principles and rules peculiar to merchants that might be described as lex mercatoria, the transjurisdictional body of customary law of medieval merchants, though I must confess that I have serious doubts. The reason for these doubts will become apparent from what we will undertake here: an examination Stracca's De mercatura, focusing first on the general ideas, then on some procedural sections, in order to afford a comparison with our thirteenth-century English treatise. What we will discover is quite similar to what we discovered in our English treatise. Stracca describes a separate set of mercantile courts, courts that vary somewhat in their procedures from those that employ longform Romano-canonical procedure. The variations are, in some cases, the product of statute; in most cases, the product of juristic elaboration. Sometimes mercantile custom plays a role, though more often in the substantive than in the procedural realm. The statutory variations and the customs clearly responded to the desires and perceived needs of the merchants. But those variations and customs did not add up to a body of law. The default rules, the structure that made argument possible, the rules by which argument proceeded, were all supplied by the ius commune.

II. Stracca's De Mercatura First, a word about our author and his book: Benvenuto Stracca (Straccha) was born in 1509 of a minor noble family in the small Adriatic port town of Ancona. He apparently received a humanistic formation and perhaps studied for a time with the Spanish humanist Ambrosius Nicander. 26 On the occasion of the extension of papal power into Ancona in 1532, Benvenuto and his father spent a year in exile. Benvenuto studied law at Bologna, probably for the five years between 1533 and 1538, and claimed among his teachers Pietro Paolo Parisio (c. 1473-1545), Agostino Berö (1474- 1554), Lodovico Gozzadini (1479-1536), and Ugo Boncompagno (1502-1585) (later Pope Gregory XIII). 2 7 Except for his years of study and his year spent in exile, Benvenuto was resident for his entire life in Ancona, where he was active in local affairs. He died in 1578, just short of his seventieth birthday. 25

In its final part, it suggests that a mercantile court in London can obtain a record of a judgment of a mercantile court in Paris. Id. 21, at 38-40. 26 L. Franchi, Benvenuto Stracca, giureconsulto anconitano del secolo XVI: Note bio-bibliografiche (Rome, 1888; repr. Glashütten im Taunus/Florence, 1975), 21 -23. 27 Id., at 24-6.

Benvenuto Stracca's De Mercatura

79

Stracca's chief claim to fame is his De mercatura, a work of approximately six hundred sextodecimo pages, first published in Venice in 1553.28 He also wrote shorter treatises, De proxenetis atque proxeneticis (1558), De assecurationibus (1569), De adiecto (1569), which were frequently published with the De mercatura in later editions of that work. 29 Stracca's work was popular. De mercatura, with or without additional treatises, saw, during Stracca's lifetime, editions in Venice in *1553, *[1556], 30 and *1575; Lyon, in *1556, *1558, and Cologne, 1575, and *1576. 31 Only the edition of Venice, [1556], contains any changes that purport to be by Stracca: a series of marginal additiones, mostly containing further citations. Curiously, these additiones do not appear in any of the later editions that I have seen, all of which reprint, with minor printer's corrections and additional printer's errors, the text of the Venice edition of 1553. (The summaries and indices differ in the different editions.) De mercatura continued to be popular after Stracca's death. It appeared in Ziletti's Tractatus universi iuris of 1584, and it was reprinted a number of times in the late sixteenth and seventeenth centuries. 32 The outline of De mercatura (Appendix 1) is curious. The first edition contains eight numbered headings. The first three deal with the status of a merchant and with mercatura, which Stracca defines as the office of a merchant. There is a brief section on the property to which mercatura applies. A brief general treatment of the contracts of merchants is followed by a treatise on mandate and by a long treatise on sponsio. Part 6, the second longest section of the book, is a separate treatise De nautis, navibus et navigatione. Part 7 begins with a brief treatise on how one ceases to be a merchant, followed by a treatise De conturbatoribus sive decoctoribus, both words that might loosely be translated as "bankrupts." This treatise is the longest section of the book. Part 8 is about procedure in the courts of merchants, the third longest section of the book. There are no known manuscripts of Stracca's work. We are left to speculate how the work was originally conceived and how it ended up in the curious arrangement 28 The edition bears the printer's mark of the Aldine press (an anchor with a dolphin surrounded by putti). For reasons that I hope to develop more fully elsewhere, I think it unlikely that this is a genuine product of that press. Briefly, it seems to me inconceivable that the Aldine press could have produced a book so full of mistakes as this one. 29 There is also a minor work, Annotationes in responsa Aymonis Cravettae, dedicated to Gregory XIII and published in Venice in *1580, after Stracca's death. 30 For the registration date of this edition, see Franchi, above, note 26, at 140. All library catalogues that I have seen have this date wrong. 31 Asterisks indicate editions that I have seen. 32 K. O. Schemer, "Die Wissenschaft des Handelsrechts," in Helmut Coing, ed., Handbuch der Quellen und Literatur der neueren Europäischen Privatrechtsgeschichte. 2: Neuere Zeit (1500-1800). 1: Wissenschaft (Munich, 1977), 864, lists editions of Lyon, 1591; Amsterdam, 1658, 1664, *1669, and Cologne, 1585, 1622. Franchi, above, note 26, lists an edition of Amsterdam, 1592 (beginning with decisions of the Genoese rota). He also reports reprints of this edition in Amsterdam, 1593, 1608, 1621.1 have also seen a reprint, Cologne, *1622, which may the same as Schemer's Cologne, 1622.

Charles Donahue, Jr.

80

that is shown in the first edition. While it is possible that this ungainly collection of material was originally conceived by Stracca as one work (he was not a disciplined writer and might have just let his quill run away with him), the evidence (presented below in Appendix 2) seems to suggest that much of what we have before us was originally conceived of as separate, freestanding treatises, which were imperfectly sewn together for the first edition, perhaps at the suggestion of the printer. Unless manuscripts are discovered, we will not know for sure, but what we have suggests that De mercatura , properly speaking, was originally organized into five parts: 33 1. quid sit mercator, quidve mercatura 2. de statu mercatorum & his quae ad eorum statum pertinent 3. de his qui mercaturam exercere non possunt 4. de rebus in quibus mercatura potest exerceri 5. quando mercator esse desinat Whether the present Part 5, De quibusdam contractibus qui inter mercatores frequentari soient (with or without its separate Titulus mandati ), was a part of the original scheme, I must confess myself to be agnostic. Part 5 has none of the telltale signs of later addition that mark the other parts that one might imagine were not part of the original scheme. Stracca would have realized, however, that any treatment de contractibus mercatorum would likely overpower his work. As it is, his general treatment of contract and the two subparts on mandate and sponsiones are woefully inadequate. He himself was to expand them with the separate treatises De proxenetis et proxeneticis, De assecurationibus, and De adiecto. So far as we know, he never wrote separately on contracts of exchange. What does all of this tell us about the way that Stracca's mind worked and where his contribution lies? At a minimum, it should cast doubt on the frequently stated generalization that Stracca "was the first to present a systematic exposition of commercial law." 3 4 If what we have suggested above is even half right, De mercatura is no "systematic exposition of commercial law," but a series of short treatises on various aspects of the law pertaining to merchants that are pasted together quite inartfully. There is, of course, some evidence of system. The first-level headings, as they are currently arranged, show some evidence of a progression following the order of the Institutes : persons, things, actions.35 Decidedly out of order from this point of view are the two ungainly treatises De nautis , navibus et navigatione and De conturbatoribus sive decoctoribus . These, however, have their own structure that follows, in some measure, the order of the Institutes , the former proceeding from 33

These suggestions are not far away from those of Schemer. I believe, however, that I have put them on a solider footing. 34 D. W Walker, The Oxford Companion to Law (Oxford, 1980), s.n. Straccha . Walker is simply following what is found in virtually all the secondary literature on the topic. 35 At least once he refers to his work as institutiones, below, text at note 187.

Benvenuto Stracca's De Mercatura

81

persons to things to a topic that defies classification in these terms, and the latter showing a definite movement from persons to actions, with a considerable amount of contractual material in the middle. Clearly, Stracca knew how to organize a piece of legal writing in accordance with the order of the Institutes. Why did he depart from it so dramatically in his placement of the two inserted treatises De nautis and De decoctoribus and in his placement of what is now called Part 7, Quando mercator esse desinat, which should come right after Part 4 at the end of the headings that deal with persons? In the case of the treatise De nautis, I suspect that the reason is that he had already written a coherent treatise on the topic, 36 and breaking it up into its constituent parts and integrating it into his general treatment of commercial law was more than he wanted to undertake. Such a procedure would also have scattered throughout the book a series of topics that would be of interest to mariners. Maritime law in the sixteenth century was not - as it is not today - a part of commercial or mercantile law. Mariners operate in a world of their own. It is a world that merchants need to know about, but it is not the same world as that of the merchants. Stracca's mistake, then, was not that he did not go further in integrating this treatise with the rest of the work, but that he went as far as he did. De nautis should have been a separate treatise from De mercatura, placed at the beginning or at the end and not awkwardly in some twilight zone between the law of contractual obligations and the law of actions. The placement of Part 7 and the treatise De decoctoribus tells us more. The connection between the two is probably that Stracca saw bankruptcy (decoctio) as a dramatic example of how one ceased to be a merchant. Indeed, he says as much in the brief Part 7. This leads him immediately to the complicated procedures, partly statutory, partly derived from the ius commune, that he imagines are appropriate for dealing with bankrupts. This organization suggests that the special procedures for dealing with merchants, which the book treats as an equity with respect the person of the merchant as a merchant, are not appropriate when dealing with merchants who do not pay their debts. The suggestion, however, is never worked out, and the result for the organization of the book is a serious muddle: A topic (Part 7) that should have treated at end of the section on persons is treated at the end of the section on the law of things, and a topic that should have been treated at the end of the section on procedure (Part 8) is treated before we learn about the basics of procedure. Further, when we get to the question of the execution of judgments, which should be at the end of the section on procedure, there is nothing there. What there is about execution of judgments has already been treated in the treatise De decoctoribus. Stracca's arrangement of his material, then, is not particularly systematic. This would have been as obvious to readers of the sixteenth century as it is to us. What36 It is even possible that the treatise was not written by Stracca, though if it was not, this would have been a piece of appropriation blatant even for the sixteenth century.

6 Piergiovanni

82

Charles Donahue, Jr.

ever accounts for the popularity of the work, it was not because it allowed readers to see a system that they had not seen before. Nor does the reason for the popularity of the work lie in the clarity of its exposition. Stracca, as we have said, was not a disciplined writer. He has a tendency to wander on. What we see, however, as lack of discipline is characteristic of many legal writers of the sixteenth century, whether they are writing in the humanist tradition or in that of the commentators. We must be careful not to judge other times by the standards of our own. W^hat is not characteristic of all sixteenth-century writing, however, and is characteristic of Stracca's, is that he frequently fails to make sense at key points in his exposition. Two examples will suffice. "Daboque operam," Stracca writes at the beginning of his general treatment of equity at the beginning of Part 8, 3 7 "(ut Ciceronis verbis utar in Oratione pro Quintio) Multis iniuriis iactatam atque agitatatam aequitatem, in hoc loco, idest mercatorum foro, consistere et confirmari, id quo facilius contingat, generaliter prius (ut diximus) disseremus, deinde ad singularia perveniemus." What could that possibly mean? It helps to know what the quotation from Cicero says: .. P. Quinctius ... te, C. Aquili, vosque qui in consilio adestis, orat atque obsecrat ut multis iniuriis iactatam atque agitatam aequitatem in hoc tandem loco consistere et confirmari patiamini. Id quo facilius facere possitis, dabo operam ut a principio res quem ad modum gesta et contracta sit cognoscatis."38 If we know the quotation from Cicero, as some, perhaps many, of Stracca's readers would have, what he is trying to say is clear enough. We might spell it out by emending to: "Daboque operam (ut Ciceronis verbis utar in Oratione pro Quintio) [ut] multis iniuriis iactatam atque agitatatam aequitatem, in hoc loco, idest mercatorum foro, consistere et confirmari [patiaris, (sc. candide lector)]; id quo facilius contingat, generaliter prius (ut diximus) disseremus, deinde ad singularia perveniemus." But that is not what Stracca says; rather he, or his printer, throws some words in the general direction of a meaning and leaves it to us to figure out what it means. The second example is more complicated. Somewhat later in the same section,39 Stracca is writing of the power of the consules mercatorum to proceed ex bono et aequo: " . . . si aequitas reperitur scripta in iure licet non in specie in simili, tarnen [iudicem] ad cavendum posse compellere [reum] de similia a similibus procedendo. At si iudes [lege iudex] moveretur aequitate quadam nec in eo casu nec in simili ad cavendum neminem esse cogendum per [C.3.1.8] 40 et [X 1. 36. I l ] , 4 1 quod ultimum probat And. Tiraq. in com. de ut. ret. §j glos. xviij num. 37 De mercatura 8.1 (Venice, 1553), fol. 245r. All succeeding references are to this edition, because that is the one that was reprinted. 38 Cicero, Pro Quinctio 10-11 (c. 2 - 3 ) . 3 9 De mercatura 8.6, fol. 285v nu. 7. 40

C.3.1.8: "Placuit in omnibus rebus praecipuam esse iustitiae aequitatisque quam stricti iuris rationem." (We will reproduce or summarize in the footnotes the texts cited, where they are necessary to follow the arguments in the text.)

Benvenuto Stracca's De Mercatura

83

46 pagin. 355. Est tarnen in eo quod diximus cogitandum tanquam (ni fallor) 42 novo et singulari ... ." The problem here is not that the sentences do not parse (once the typographical errors are corrected). 43 The problem is what do they mean? They may be translated: "If an equity is found written in the law, although not specifically, in a similar [case], nonetheless, the [judge] can compel [the defendant] to give security [under the provisions of D.13.4.4] 44 by proceeding from similar [cases] to similar [cases]. But if the judge is moved by some equity not in that case nor in a similar, no one is to be compelled to give security." In the case of the first sentence, the problem is how are we to proceed from similar to similar when we are not told where the similars are to be found. The second sentence raises, and does not answer, the question where it is that the equity is not. The second sentence might also be translated: "But if the judge is moved by some equity, not in that case nor in a similar is anyone to be compelled to give security." Both translations are possible. The problem with the second translation is that it makes the second sentence seem to contradict the first. All becomes clear if we look at André Tiraqueau's De utroque retractu: 45 "At Alexander [Tartagnus] in [D.45.1.5] 46 post principium putat quod si aequitas reperitur scripta in iure, licet non in specie, sed vel in genere vel etiam in simili, tunc iudex procedens de similibus ad similia potest compellere ad cavendum per [D.I.3.12] 4 7 At si moveretur aequitate quadam nec in eo casu scripta nec in simili, neminem esse cogendum, per [C.3.1.8] et [X 1.36.11]." Not only does this show that there is nothing "new and singular" about Stracca's view, but it also shows that in copying Tiraqueau, he left out "sed vel in genere vel etiam," 48 thus making hash out of the first sentence, and "scripta" in the 41 X 1. 36. 11: "In his vero, super quibus ius non invenitur expressum, procédas, aequitate servata, semper in humaniorem partem declinando, secundum quod personas et causas, loca et tempora videris postulare." 42 A characteristic phrase in Stracca's style. 43 I find the case of novo et singulari odd, but I won't insist on it; the meaning is clear enough. 44 D. 13.4.4: "Quod si Ephesi petetur, ipsa sola summa petetur nec amplius quid, nisi si quid esset stipulatus, vel si temporis utilitas intervenit. [1] Interdum iudex, qui ex hac actione cognoscit, cum sit arbitraria, absolvere reum debet cautione ab eo exacta de pecunia ibi solvenda ubi promissa est. Quid enim si ibi vel oblata pecunia actori dicatur vel deposita vel ex facili solvenda? nonne debebit interdum absolvere? In summa aequitatem quoque ante oculos habere debet iudex, qui huic actioni addictus est." 4 5 Tiraquellus, Commentaria de utroque retractu, § j , glos. 18 (Lyon 1571), nu. 46, p. 277. 46 Dealing, among other things, with stipulations that the praetor or the iudex may impose on the parties. 47 D.I.3.12: "Non possunt omnes articuli singillatim aut legibus aut senatus consultis comprehendi: sed cum in aliqua causa sententia eorum manifesta est, is qui iurisdictioni praeest ad similia procedere atque ita ius dicere debet." 48 He, or his printer, may also have misread Tiraqueau's "tunc" as "tamen," and easy mistake to make if both words are abbreviated. In fairness to Stracca or his printer, we should add that the qualifying "sed vel in genere vel etiam" does appear in another statement of the rule further up on the page. De mercatura 8.6, fol. 285v nu. 6.

6*

84

Charles Donahue, Jr.

second sentence, thus introducing an ambiguity where none had existed in the original. What this discovery means is that if we wish to get at Stracca's thought we must read not only what he wrote but what he cites. Such a method of proceeding is, to some extent, necessary with all late medieval and early modern legal writing, in order to see how far the author is stretching his sources or simply repeating what everyone said. It is even more necessary in the case of Stracca, because much in the work is incomprehensible without going back to the sources. The procedure is, however, time-consuming and requires a good library. The Special Collections of the Harvard Law School Library provided me with the latter; in order to save time, I sampled what I thought were likely to be the key passages in the book. I report below on one that turned out to be the most interesting, the general introduction to equity at the beginning of Part 8, the procedural section, which I then expanded with some examples from the treatment of specific procedural issues.49 The results, I believe, will allow us better to assess Stracca's contribution than has previously been done, and also to cast some light on the question with which we began the paper: the role, or even the existence, of mercantile customary law.

III. Equity in the Courts of Merchants Stracca's general introduction to his procedural section is divided into three parts. 50 The first, a kind of harenga, announces the theme of the section: "In curia mercatorum aequitatem praecipue spectandam et ex bono et aequo causas dirimendas esse et de apicibus iuris disputare minime congruere nemo est profecto qui nesciat.51 Id enim in sexcentis locis 52 recentiores iurisconsulti tradidere, quorum aliqua hie referemus, in singulis disceptationibus alia postea relaturi." There follows the citation of twenty-four authorities, which, except for the references to the Corpus Iuris (which also imply references to the Accursian gloss), begin with Bartolo da Sassoferrato (f 1357) and end with Stracca's teachers Gozzadini (f 1536) and Parisio (f 1545). We have citations to the commentaria of Bartolo (2), Baldo degli Ubaldi (f 1400), Angelo degli Ubaldi (f c. 1407), Bartolomeo da Saliceto (f 1411), Alessandro Tartagni (f 1477), Ludovico Gozzadini, and Filippo Decio (f 1536 or 7); the consilia of Baldo (2), Angelo degli Ubaldi, Raffaele Fulgosio (f 1427), Lodovico Pontano da Roma (f 1439), Alessandro (3), Socini (either Mariano senior [f 1467] or Bartolomeo [f 1507]) (2), Etienne Bertrand (f 1516 or 17), Giasone dal Maino (f 1519) (2), and Pietro Paulo Parisio (2), and to unspecified 49 In "Equity in the Courts of Merchants", TRG, 72 (2004) 1-35, explore the antecedents of Stracca's idea of equity and examine its application in substantive areas of mercantile law. 50 De mercatura 8.1, beginning at fol. 244v nu. 1, 245r nu. 2, 246r nu. 5. 51 A typically Straccan locution. Cf. id. 6.1.1, fol. 124v nu. 1. 52 A favorite phrase of Stracca's. Cf. id. 8.1, fol. 247r nu. 6.

Benvenuto Stracca's De Mercatura

85

places in works of Angelo degli Ubaldi and Giovanni da Imola (f 1436).53 As can be seen, with one exception,54 these are "commentators" of the Italian school, and none of them is a contemporary of Stracca's (the closest to him in age being Gozzadini, who was born in 1479 and hence was generation older). The argument of the second section is more complicated. We would get the wrong impression, Stracca tells us, if we thought that proceeding ex bono et aequo is peculiar to mercantile courts. Rather, proceeding ex bono et aequo is generally required (generaliterdecretum), as D.I. 1.1 shows.55 His statement is quite correct. Much more difficult are the questions what does it mean to proceed ex bono et aequo and when is it appropriate to do so. To these questions Stracca now turns. In the first place, Stracca tells us, Accursius (and, although Stracca does not say so, the entire tradition that followed the ordinary gloss) was wrong when he distinguished between proceeding ex bono and proceeding ex aequo. They were, in fact, the same thing for the Romans. His authorities here are the texts of the Corpus iuris itself, unadorned by the gloss, Cicero, and humanist writers, men roughly Stracca's contemporaries or a bit older: Guillaume Budé (f 1540), Andrea Alciati (f 1550), André Tiraqueau (f 1558), and Johann Oldendorp (f 1567). Broadly speaking, these are members of the French school of humanistic jurists, although Alciati was an Italian transplanted to France, and Oldendorp was a German. But that still does not answer the question what it means to proceed ex bono et aequo. Here Stracca turns to a fragment in the Digest title De poenis (D.48. 19. 16), which lists seven things that a judge is to consider in imposing penalties: the cause, the person, the place, the time, the quantity, the quality, and the eventus. (The last term is virtually untranslatable; it refers here to the relationship between what happened, the "event" in the literal sense, and the quality of the will or intention of the actor, i.e., whether was there force or fear; whether was it an accident, etc.) The list is then supported with citations to Johann Oldendorp and Baldo. Stracca then attempts his own definition of proceeding ex bono et aequo, in a tortured sentence that may be corrupt, but which may be paraphrased as follows: 56 "It can happen that a law which is equitable and good as a general matter (for the rules and positions of the law are most just, so much so that none more just according to their nature can be devised) when applied to the specific facts of an individual case, yields a result that is not as equitable under the circumstances as some other result." Determining this more equitable result, Stracca implies, is the ars 53 On the forms of these names, see above, note 18. 54

The exception is not really an exception. Etienne Bertrand was French, but he operated in the south (Carpentras) and was very much a member of the "Italian school." 55 De mercatura 8.1, fol. 245r nu. 2. D.I. 1.1: "ius est ars boni et aequi," etc. 56 Id., fol. 246r nu. 3: "Evenit enim ut ius quod in genere suo aequum et bonum est (sunt enim iuris regulae et positiones iustissime, adeo ut secundum naturam iustiores dari non possunt) si ad facti speciem singularem transferas, atque deducas ex circumstantiis aequo aliud aequius esse iisdem legibus ...".

86

Charles Donahue, Jr.

boni et aequi, of which D.I. 1.1 speaks. He next offers four examples from the Digest where a jurist determined a more equitable result and applied it in the face of a general law to the contrary. 57 He then draws two general conclusions from the writings of the commentators: Good faith is required in those who do much business (citing Baldo, Giasone dal Maino, and Alessandro), and written specific equity overcomes written general rigor (citing the "recent interpreters" of C.3.1.8).58 That brings him to the following surprising, though perhaps not totally unanticipated, conclusion: "Bene igitur censuerunt plerique ex nostratibus iursconsultis qui ratione personarum mercatorum et propter estimationem eorum in eorum causis ex bono et aequo procedendum esse tradidere." 59 This last point may be only original idea in the whole section, perhaps in the whole book. Stracca's notion is that the circumstance that justifies different treatment for merchants is a personal one. The merchant's status as a merchant entitles him (or makes it equitable that he have) proceedings ex bono et aequo. For Stracca being a mercator is a status. That is why he devotes so much space at the beginning of the book to determining who is and who is not a merchant. Indeed, if our speculations (§ 2) as to how the work was initially conceived are correct, this was originally the primary purpose of the work. Stracca was, of course, not the first to think that the status of being a merchant was legally significant. The commentators on the statutes of the Italian city-states had to determine who was a merchant, because many of those city-states passed statutes that applied to merchants and not to others. A number of jurists also made use of the mercantile status of the parties in rendering decisions about their affairs. Stracca, however, may be the first to link the commonplace that in the court of merchants proceedings are ex bono et aequo to a general theory of equity that allows equitable decisions on the basis, among others, of personal status and to derive from this link the notion that an equity attaches to the personal status of a merchant. The third section repeats the argument of the second from a different viewpoint. 60 Stracca begins by asking what are the "fine-points of the law" (,apices iuris) referred to in D.17.1.29.4.61 Bartolo, commenting on the same fragment, had said that apices iuris could be ignored in mercantile courts. In that passage, Bartolo had seemed to confine the phrase to procedural matters, citing D. 16.3.3162 for 57 D.47.2.62.5, D.12.1.32, D.16.3.31, D.17.1.48. 58 Above, note 40. 59 De mercatura 8.1, fol. 246r nu. 4. This might be somewhat loosely translated: "Well therefore do many of our jurisconsults determine, when they hand down that procedure in cases of merchants is to be ex bono et aequo, by reason of the persons of the merchants and the esteem in which they are held." 60

Beginning: De mercatura 8.1, fol. 246r nu. 5. D.17.1.29.4: "Quaedam tamen etsi sciens omittat fideiussor, caret fraude, ut puta si exceptionem procuratoriam omisit sive sciens sive ignarus: de bona fide enim agitur, cui non congruit de apicibus iuris disputare, sed de hoc tantum, debitor fuerit nec ne." 61

Benvenuto Stracca's De Mercatura

87

the proposition that the ratio of the c i v i l law must otherwise be observed. 63 In commenting on D. 17.1.48, 64 however, Bartolo had said that there was an argument that the exceptio nudipacti could not be raised in a mercantile court. 6 5 Baldo, Saliceto and Giasone dal Maino had all approved the first opinion. 6 6 Baldo had also noted the apparent conflict of the second opinion and had sought to reconcile the t w o . 6 7 The question, obviously, is what are apices iuris. This question sends Stracca once more to his humanist sources. Johann Oldendorp and Guillaume Budé equate apices iuris with summum ius, ius inflexibile, generalis definitio, subtilitas verborum, severitas legum, perdurum ius, strictum ius, even summa iniuria. But this last equation is not correct, as Panormitano recalls, and as Tiraqueau confirms. The problem, Stracca continues, can be solved by looking again to the general and the particular. The law is as good as it can be as a general matter, but it cannot always be applied to a specific case. Pacts should be observed, but not i f they contrary to law and morals or entered into as a result of fraud, as a number of passages from the Corpus Iuris Civilis and both Budé and Oldendorp point out. Knowing when to remit the law on the ground of equity is 62

D. 16.3.31 seems to take the second of the two options in answer to the question: "[bonam fidem] utrum aestimamus ad merum ius gentium an vero cum praeceptis civilibus et praetoriis?" 63 Bartolus, ad D. 17.1.29.4 (Venice, 1602), fol. 104va-vb: "Non imputatur fideiussori, si omisit exceptiones quae sunt de apicibus iuris, si de veritate negotii disputavit. Hoc dicit. Nota quod apices iuris dicuntur qui subtilitatem quandam respiciunt magis quam facti veritatem. Nota quod in curia mercatorum debet iudicari de bono et aequo omissis iuris solennitatibus. Quid est dictum? Hoc non dico quod debeat intelligi non habito respectu ad iura civilia quia esset contra [D.16. 3. 31], sed debet intelligi non inspectis solemnitatibus iuris, hoc est non inspectis apicibus iuris, qui veritatem negotii non tangunt, ut si esset intentata actio directa, cum competebat utilis, vel non erat con[104vb]testata Iis, et similia, quod nota multum. Istum paragraphum in terminis habes in dicta lege [D. 16.3.31]." 64

D. 17.1.48: "Quintus Mucius Scaevola ait, si quis sub usuris creditam pecuniam fideiussisset et reus in iudicio conventus cum recusare vellet sub usuris creditam esse pecuniam et fideiussor solvendo usuras potestatem recusandi eas reo sustulisset, eam pecuniam a reo non petiturum. sed si reus fideiussori denuntiasset, ut recusaret sub usuris debitam esse nec is propter suam existimationem recusare voluisset, quod ita solverit, a reo petiturum. Hoc bene censuit Scaevola: parum enim fideliter facit fideiussor in superiore casu, quod potestatem eximere reo videtur suo iure uti: ceterum in posteriore casu non oportet esse noxiae fideiussori, si pepercisset pudori suo." 65 Bartolus, ad D. 17.1.48 (Venice, 1602), fol. 105vb: "Qui parcit pudori alterius, ad alterius commodum, non excusatur: secus in eo qui parcit pudori proprio. Hoc dicit quod nota. Vel die secundum But. [?Jacobus Butrigarius]: Auditur fideiussor volens parcere famae suae: volens vero parcere famae rei, invito reo, non auditur. Hoc dicit. ... Et nota primam glossam quae dicit quod ex pacto tenebatur. Ex qua nota quod aliqua est verecundia recusare quod pacto nudo promisit. Item nota argumentum ex ista lege quod in curia mercatorum ubi de negotio potest decidi bona aequitate, quod non potest opponi ista exceptio, 'non intervenit stipulatio, sed pactum nudum fuit', etc." 66 Baldus, ad C.4.35.10 (Lyon 1564), fol. 105rb; Salicetus, ad C.3.1.8 (Frankfurt, 1615), fol. lOra-rb; lason de Maino, ad C.2.12.18 (Lyon, 1547), fol. 109rb[a]. 67 Baldus, above, note 66.

88

Charles Donahue, Jr.

something that the jurist does. Scaevola, Cicero tells us, was particularly good at it ( per acutus ).68 Donatus defined the general principle properly. Celsus junior got it right in D.45.1.91.3, but he warned that many get it wrong. 69 Hence, there is nothing inconsistent in the two opinions of Bartolo. The ius civile is generally observed in mercantile courts, but the rule of the strict law that a naked pact does not give rise to an action but only an exception is to be tempered and moderated by the circumstance of the persons of the merchant parties, on the authority, apparently, of C.3.1.8. Stracca's resolution of the particular problem of whether the exceptio nudi pacti was available in a mercantile court was not new. He cites in support the Tractatus de compromissis of his contemporary Marcantonio Bianchi (f 1548), and Bianchi was relying on a long tradition, one might even say a communis opinio, for his view. 70 What is new, so far as I am aware, is Stracca's use of humanistic sources to support the view. Whether the humanistic material in fact puts the communis opinio on a solider footing can be doubted, but there can be little doubt that Stracca thought that it did. What is clear, however, from this brief rehearsal of the argument is that the humanistic material contributes only at a rather high level of generality. Stracca uses it at two points: first, to oppose the view of Accursius that proceeding (or deciding a substantive issue) ex bono and proceeding (or deciding a substantive issue) ex aequo are two different things. That would have been important if the commentators had regularly distinguished between the two, but they did not. The distinction was in the great gloss, and they accepted it, but they rarely made any use of it. They may have been unaware (though their knowledge of the Corpus was so good that it is hard to imagine that they were not at least subconsciously aware) that the Romans linked the two concepts, so much so, as Budé and Oldendorp tell us, that they frequently left out the copula (ex bono aequo). The second point where Stracca uses humanist material, as we have just seen, is to support a resolution already reached by the commentators, though his use of humanist material does allow him to make more explicit the considerations of policy that supported recognizing some pacts but not others. If the use of humanist material, though new, does not lead to much substantive innovation, the question then becomes to what extent was Stracca doing something new with the material that was in the commentators. Did he, as was frequently the case with innovative work in this tradition, put together into a coherent whole widely scattered material that had never before been seen to be related, or was he 68

See below, text and note 185. D.45.1.91.3: " . . . et Celsus adulescens scribit eum, qui moram fecit in solvendo Sticho quem promiserat, posse emedare earn moram postea offerendo: esse enim hanc quaestionem de bono et aequo: in quo genere plerumque sub auctoriatate iuris scientiae perniciose, inquit, erratur ...". 70 This point is more fully discussed in "Equity in the Courts of Merchants", above, note 49. 69

Benvenuto Stracca's De Mercatura

89

simply reporting a series of resolutions that had already been reached? A reading of the material that Stracca cites suggests that the second is a more accurate description. Indeed, what Stracca reports is but the tip of the iceberg, the apex, i f you w i l l , of a long tradition that agreed on the basic principles and some of the specific resolutions, but sharply debated others.

IV. The Exceptio procuratoria Let us turn then to some examples of the uses that are made of this tradition of equity in the area of procedure. We begin with the issue mentioned in D.17.1.29.4, the exceptio procuratoria , and with Giasone dal Maino's commentary on C.2.12.18. 71 That text, which seems to forbid women from serving as proctors, conflicts with texts that generally open the way to being a proctor to anyone who provides a cautio, and for that reason the doctors sought to limit it in various ways. Giasone reports eleven possible limitations to the rule of C.2.12.18 of which the fifth concerns u s : 7 2 Quinto limita quando deberet procedi secundum equitatem ubi non attenduntur apices iuris secundum Bartolum in [D.17.1.29.4].73 Nam ista exceptio "tu non potest esse procuratrix quia es mulier" est de apicibus iuris. Ita expresse dicit glossa in [D.17.1.29.4]. Patet quod non concernit veritatem facti principalis, nec mérita cause: ergo dicitur esse exceptio de apicibus iuris in [C.l.18.10 (i.f.)] et in [D.12.6.1.1].74 Et dicit Baldus in [X 1.2.1] quod apices iuris dicuntur quiquid bonam fidem non tangit sed extrinsecus ventilator. 75 Hinc infertur in specie quod cum in curia mercatorum procedatur de equitate non attends apicibus iuris secundum Bartolum in [D.17.1.29.4] (et notât Baldus et Salycetus in [C.4.35.10]),76 [mulier potest esse procuratrix]. Hinc etiam videtur posse inferri, quod cum in foro canonico procedatur de equitate, non attentis iuris apicibus [X 2.1.16], 77 quod in foro canonico mulier potest esse procuratrix. Tolle bonum simile in exceptione executionis [lege ?excussionis], quae cum sit de apicibus iuris, secundum glossam in

71

Iason de Maino, ad C.2.12.18 ["Alienam suscipere defensionem virile officium est et ultra sexum muliebrem esse constat. Filio itaque tuo, si pupillus est, tutorem pete."] (Lyon, 1547), fol. 109ra- 109rb. 72 Id. fol. 109rb[a]. 73

Above, note 61. Both of these texts deal with solutio indebiti and the distinction between ignorantia iuris and ignorantia facti. I have been unable to explore the connection that Giasone sees between these texts and the problem at hand. 74

75 Baldus , ad X 2.1.1 [a basic canon on the binding nature of ecclesiastical constitutions] (Lyon, 1564), fol. lvb-9[male 16]ra. 7 6 Baldus, ad C.4.35.10 [a text that raises issues similar to D.17.1.29] (Lyon 1564), fol. 105rb; Salicetus, ad C.3.1.8 [above, note 40] (Frankfurt, 1615), col. 9 - 1 0 (discussing more fully what he mentions in passing at C.4.35.10). 77 This decretal authorizes preceptors of the houses of the Templars to bring and defend suits on behalf of their houses.

Charles Donahue, Jr.

90

[D.21.2.34.1]; per rationem predictam non habet locum in foro canonico ... , 7 8 Sed istam ultimam limitationem non audeo firmare, quod mulier possit esse79 procuratrix in foro canonico, cum speciale sit in abbbatissa ut statim dicam. Item quia dicit not[abiliter] Archidiaconus in [C.6 q.3 c . l ] 8 0 quod in causis in quibus vertitur periculum animarum non debent attendi apices iuris, ut in causa usuraria, ergo per hoc ostenditur quod non indistincte de iure canonico repellantur apices iuris. Cogita tarnen. Item considéra quod ista lex fundat se super honestate et reverential nam inhonestum est mulieres versari in foro, ut hic et [C.2.12.21].81 Certe ista ratio videtur militare in omni foro, etiam mercantie.

It took some courage for Giasone to so say. Not only did it seem to contradict what D. 17.1.29.4 had expressly held, but Baldo's commentary on X 1.29.3 had noted: 82 "Item nota quod arbitrator non audit exceptiones declinatorias fori quia non est iudex; unde coram eo minor et mulier posssunt procurare quia ubi de bona fide agitur non congruit de iuris apicibus disputare sicut dicit ille divus textus [D. 17.1.29.4] ... Admittedly, this remark only concerned arbitrators and not judges in mercantile courts, but it was common to draw analogies from the first situation to the second. Stracca's treatment of this topic is too long to quote,83 but his views may be summarized as follows. He takes Giasone as having stated the communis opinio that the exception that woman cannot be a proctor cannot be raised in the mercantile court but as having warned (animadvertendum ) that perhaps it should be. On this issue, Stracca suggests, Giasone laid down no certain opinion. While we might accuse Stracca of having made Giasone more hesitant than he actually is in order to emphasize the novelty of his own opinion, Stracca view is quite clear: "Ego vero puto expeditum esse mulieres et in curia mercatorum et in foro pontificio nec postulare posse nec procuratrices existere." 84 He quotes as authority D.3.1.1.5 (i.m.), the well-known passage that justifies the prohibition on having women postulate (bring causes on others' behalf) because of the importunity of one Carfania. This is further supported by the fact the canons do not allow a woman to be a proctor. And while, he concludes, we do not always follow the canons, they are a source of what is honest. That, of course, raises the question of what to do about the fact that D. 17.1.29.4 expressly says that the exceptio procuratoria is de apicibus iuris. Here, Stracca 78

For a fuller discussion of this issue and references, see below, § 5. esset. 80 Guido de Baysio, ad C.6 q.3 c.l (Lyon, 1549), fol. 177vb, who is, in tum, reporting the opinion of "L." (probably Laurentius Hispanus). The text cites D. 17.1.29.4 but is principally concerned with preaching. It does not mention usury; Giasone is stretching the point. But see Clem. 5.5.1. 79

81

Another text that comments on the inappropriateness of women being involved in litiga-

tion. 82

Baldus , ad X 1.29.3 (Lyon, 1562), fol. 85vb. S3 De mercatura 8.4 (Venice, 1553), fol. 273r-274v nu. 1 - 3 . 84 Id., fol. 273r nu. 1.

Benvenuto Stracca's De Mercatura

91

makes an interesting move, one that I do not recall having seen since Bartolo had expressly extended the reach of the text. Stracca limits the text to its facts: The text says that thefideiussor has not committed fraud by omitting the exceptio procuratoria. That does not mean that the exception should have been rejected if he had raised it. 8 5 The next topic that Stracca considers was probably of far more practical importance than whether women could be proctors in the courts of merchants. 86 Est et alia procuratoria exceptio "tu non es procurator," seu "mandatum non habes." Unde quaeri potest an disputandum sit in curia mercatorum super hac exceptione necne tanquam de apicibus iuris sit. Accursius in dicto [D.17.1.29.4] ait ilium paragraphum locum habere in exceptione proxime relata [i.e., "tu non potes esse procurator"], non autem in hac exceptione, "tu non es procurator;" putavit enim fideiussorem disputare debere super hac exceptione.

After a full folio of discussion, Stracca concludes that Accursius was right. Let us follow the discussion, because it illustrates well Stracca's method. Accursius had cited D. 17.1.26.[5] in support of his position. 87 That text had denied to the fideiussor the right to claim from the debtor a payment made to a false proctor of the creditor. The conflict with D.17.1.29.4 was obvious, and Accursius had, fairly clearly, resolved the conflict by assuming that D.17.1.29.4 dealt with some objection to the proctor other than that he was not in fact the proctor of the creditor. Jacobus de Belvisio, Stracca tells us, offered another distinction: D. 17.1.26.5 dealt with a situation where a payment had been made to a false proctor; D.17.1.29.4 dealt with the failure to object to a proctor in the context of litigation. This, Jacobus held, is never required. All exceptiones procuratoriae in litigation are de apicibus iuris. At this point the thread of Stracca's argument becomes a bit unclear: 88 Pro qua sententia est quia iurisconsultus in [D.17.1.29.4] generaliter ait, "si procuratoriam exceptionem fideiussor omiserit fraude carere," et hanc exceptionem [sc. "tu non es procurator"] procuratoriam appellari patet ex lege [D.39.2.39.3]89 cum nota et ex commentar85 Stracca cites C.2.13.13 v° militiae ([Lyon, 1604], col. 377) and Iason, ad C.2.12.18 ([Lyon, 1547], fol. 109ra), both of which argue that an exception against a woman as proctor must be made before the litis contestatio. Neither of these texts deals with the question whether the exception could be raised at all in proceedings de bono et aequo. An argument similar to Stracca's here is made in D.21.2.34.1, v° actum esset (Lyon, 1604), col. 2011, below at note 137, in the context of the exceptio excussionis. 86 De mercatura 8.4, fol. 274r nu. 3. 87 D.17.1.26.5: "Mandatu tuo fideiussi decern et procuratori creditoris solvi: si verus procurator fuit, statim mandati agam: quod si procurator non est, repetam ab eo." 88 De mercatura 8.4, fol. 274r-v nu. 3. 89 D.39.2.39.3: "Alieno nomine stipulari ita licet, ut quod damnum domino datum sit, comprehendatur: cavere autem debebit is qui stipulabitur dominum ratam rem habiturum exceptioque procuratoria stipulationi inserenda erit, sicut in stipulatione legatorum: quod si ei non cavebitur, mittendus est in possessionem procurator omnimodo, ut ei exceptio procura-

Charles Donahue, Jr.

92

iis Abbatis in [Χ 1.38.4] 90 et vide [D.44.1.3 (i.f.)]. 91 His adde Baldum in [D.3.3.57.1] et eundem Baldum in dicto [D. 17.1.29.4] qui ait Accursiu[m] in dicto [D.3.3.56.1] in verbo "procuratoriam" sensisse [D. 17.1.29.4] et in hac exceptione "tu non es procurator" locum habere. 92 Ego vero Accursio assentior in dicto [D. 17.1.29.4] et haec sententia placuit Bernardo optimo iuris pontifici interpreti in [X 1.38.4] in verbo "exceptio." 93 Ait enim in hac exceptione, "tu non es procurator", dictum [D. 17.1.29.4] intelligendum non esse, sed [274v] ilia "tu non potes esse procurator" propter [D.39.2.39.3]. Et consequenter de hac exceptione in curia mercatorum disputandum esse.

The ultimate conclusion is clear enough, even if the route to it is not. The ultimate conclusion is that Accursius was right, and his distinction between "tu non es procurator" and "tu non potes esse procurator" should be applied in mercantile courts, so that the former exception is admitted but the latter is not. Stracca gives the impression that in this view he is disagreeing not only with Jacobus de Belvisio, but also with Panormitano, Baldo, and Accursius in another place, all of whom, he suggests, interpreted the phrase exceptio procuratoria broadly, and, hence, implied that D. 17.1.29.4 should be applied to all such exceptiones. Indeed, he seems to suggest that he is going back to the "true view" of Bernardus (Parmensis) in his gloss on exceptio in X 1.38.4. If this is what Stracca is trying to imply, then he is wrong. So far as I can tell, no one accepted the view of Jacobus de Belvisio (although Baldo reported it in his commentary on D. 17.1.29.4). The reason that no one accepted it is not only that Accursius had a different view, but also that X 1.38.4 provided powerful support for Accursius's view. In that decretal Innocent III was faced with an appeal by the bishop of Toul who alleged that his proctor, after the bishop had revoked the proxy, the revocation having reached the proctor, had impetrated a papal rescript which delegated a case between the bishop and the dean of his cathedral to the archdeacon of Paris and others. Called before the archdeacon, the bishop sought to prove the faithlessness of his proctor, and hence the invalidity of the rescript. The archdeacon refused to admit the exception and proceeded to render sentence against the bishop, depriving him of his see. These facts having been proven before the pope, he quashed the judgment: 94 [A]ttendentes etiam quod falsi procuratoris exceptio non solum ante sententiam, verum etiam postea potest obiici, ut pote qua probata judicium nullum et nullius momenti controversiae reputantur, processum surpadictorum iudicum sententialiter duximus irritandum. toria non noceat." The complexities of this text are considerable. It would seem that two different cautiones are involved, that de re rata and that de damno infecto. For our purposes, however, it is clear that the exceptio procuratoria that is inserted in the stipulation is quite different from those made in litigation. 90 See below, text at note 102. 91 92 93 94

D.44.1.3 (i.f.): "procuratoriae quoque exceptiones dilatoriae sunt, quae evitari possunt." For these texts and commentary, see below, text and notes 105-123. excepto. See below text at notes 94-95. X 1.38.4.

Benvenuto Stracca's De Mercatura

93

Bernardus Parmensis's gloss on exceptio lays out the situation quite clearly with appropriate references to the civil law: 95 Quando dicatur falsus procurator dixi supra [X 1.3.33].96 Et ilia est exceptio falsi procuratoris. Est et alia exceptio procuratoria, scilicet, cum quis non potest esse procurator, veluti miles, et non potest opponi post litem contestatam cum sit dilatoria. [D.3.3.8.2] et [C.2.12.13].97 Et hanc potest omittere fideiussor. [D.17.1.29.4]. Est et alia exceptio procuratoria, scilicet non habere mandatum, de qua hie dicitur (quia plus est mandatum fuisse revocatum quam non habuisse mandatum, supra [X 1.3.33] in fine). 98 Et hanc exceptionem non debet omittere fideiussor. [D.17.1.26.5]99 Et talis exceptio 100 potest opponi post sententiam, ut hic et [C.2.12.24]. 101 Ber.

Panormitano's commentary on the same text draws the same distinction: 102 In glossa in verbo "falsi procuratoris" in fine nota glossam quia quotidie ad earn remittitur. Ex qua habes quod exceptio falsi procuratoris quod scilicet nunquam fuit procurator, vel fuit, sed est revocatus, potest opponi etiam post sententiam, quia reddit iudicium nullum. Non enim potuit ius alterius sine mandato in iudicium deducere. Sed exceptio, "tu non potes esse procurator," solum potest opponi usque ad contestationem litis, et non postea, ut patet in milite qui non potest esse procurator, ut in [C.2.12.9]. 103 Sed si non excipitur contra eum non potest repelli post litem contestatam [ut] in [D.3.3.8.2] et in [C.2.12.13] 104 allegatis in glossa. Et est ratio diversitatis quia hoc ultimo casu ipse habuit mandatum et eo ipso quod non excipitur ante litem contestatam efficitur dominus instantiae per contestatationem litis ab eo factam, unde sicut in facto proprio potest esse in iudicio, ita et nunc in facto alieno, et idem dicendum in causa appellationis, ut etiam tunc non possit oppponi, ut est textus singularis in dicta lege [C.2.12.13].

95 X 1.38.4 v° exceptio (Venice, 1572), p. 283a. 96 This decretal holds that a rescript impetrated by a proctor whose mandate has been revoked is void. 97 Both texts clearly state the rule that dilatory exceptions must be raised before the litis contestatio. 98 The reference makes clear that this remark is parenthetical. The gloss on X 1. 3. 33 v° mandatum (Venice, 1572), p. 47a, does say that a proctor whose mandate has been revoked is even less authorized than one who has no mandate at all, but that is not relevant here. In both cases thefideiussor may not omit the exception, and in both cases the exception may be brought even after judgment. 99 Above, note 87. 100

Ed. ins. male non. C.2.12.24: "Licet in principio quaestionis persona debet inquiri procuratoris, an ad agendum negotium mandatum a domino litis habeat, tamen si falsus procurator inveniatur, nec dici controversiae soient nec potest esse iudicium." As noted below, text following note 129, the author of X 1.38.4 probably had this text in mind. 102 Panormitanus, ad X 1.38.4 (Turin, 1577), fol. 142ra nu. 7. 101

103 This text seems to hold that soldiers may act on the mandate of another, but perhaps the negative inference is that they cannot act on another's proxy. 104 Above, note 97.

Charles Donahue, Jr.

94

There is therefore no support here for Stracca's suggestion that Panormitano supported Jacobus's view that all exceptiones procuratoriae could be omitted by the fideiussor in D. 17.1.29.4. The civilian tradition cited by Stracca is slightly more ambiguous, but not much more. The ambiguity, i f there is any, begins with the Accursian gloss on D. 17.1.29.4: 1 0 5 Quia non disputavit an de iuris subtilitate potuerit esse miles procurator, vel femina: disputa vit tarnen an haberet mandatum; aloquin contra, ut [D. 17.1.26.[5]] 106 quae est contra. Nam et ilia dicitur procuratoria exceptio, ut infra [D.39.2.39.[3]] 107 et hic. It seems reasonably clear that what Accursius is saying is that one must distinguish between the exceptio procuratoria which is de iuris subtilitate , such as "you are a soldier" or "a woman" and therefore "you cannot be a proctor" and the exceptio procuratoria "you do not have a mandate." Otherwise ( A. Baldasseroni, Dizionario ragionato di giurisprudenza marittima e di commercio, tomo II, Livorno, Masi, 1812; entries assicurato, assicuratore, assicurazioni in genere, pp. 26-84; entries cambio, cambio manttimo, pp. 345-408.

136

Riccardo Ferrante

French - obviously Valin, Pothier and Emérigon but also the recent Merlin (Repertoire), De Bernardi (in his commentary on the Code civil), Dufour (Le parfait négociant ou code du commerce avec instruction et formules, 1808), Boucher (Manuel des négocians, ou le Code commercial et maritime, commenté et démontré par principes, 1808) - and European: Magens (Versuch über Assecuranzen), Molloy (De iure maritimo et navali), Beawes (Lex mercatoria rediviva, or the Merchant's directory ...), Malynes (Lex mercatoria). In short Corvetto, as a native of Genoa, was required to embody a legal tradition (as well as ancient trading practice) which stretched back at least to Carlo Targa (Ponderazioni sopra la contrattazione marittima) and Giuseppe Lorenzo Maria Casaregi (Discursus legales de Commercio: assecurationes e cambia nundinaria et marittima) 48 . During the discussion by the Conseil Corvetto had to field critical observations whenever the normative text diverged even slightly from the corresponding text of the Ordonnance. When Bigot-Préameneau criticised the innovations , Corvetto supported by Bégouen, evidently influenced by the demands for reform advanced by traders, and perhaps shielded behind the authority of Valin - emphasised that "depuis l'ordonnance, les rapports commerciaux sont bien changés", and that for some time particular agreements between the parties had derogated in practice from the legislative provisions of 1681 on contrats à la grosse. On 29 August 1807, Corvetto presented a new version of the two titles which incorporated the corrections previously approved. On this occasion, the debate centred on whether disputes over fulfilment of insurance contracts should be compulsorily subject to arbitration 49. Regnaud declared in favour of removing this obligation, although it would be necessary to devise measures which obliged the stronger party, "le compagnie d'assurances", to pay the amount due promptly, given the long delays that forced numerous French businesses to insure themselves abroad. Bégouen contested this account, expressing singular hostility against the corporate phenomenon historically innate to the insurance company owing to the necessity of sharing conspicuous risks. Normally, he argued, it is the interest of the insured party "isolé" ("parce que l'objet intéresse presque toujours essentiellement sa fortune") that prevails, "tandis que les assurers n'ont qu'un intérêt très divisé, peu important pour chacun d'eux; que c'est l'affaire de tous et celle de persone". And then - continued Bégouen in defence of the national industry - the overwhelming preference was for French maritime insurance companies, rather than 47 P. Baldasse roni, Leggi e costumi del cambio, Pescia, Masi, 1784; by Ascanio is Delle assicurazioni marittime, Firenze, Bonducciana, 1786, in three tomes. 48 For a broad survey of the Die Wissenschaft des handelsrecht until the end of the 1700s see K. O. Schemer, Handel, Wirtschaft und Recht in Europa, Goldbach, 1999, pp. 41-241 (previously published in Handbuch der Quellen und Literatur der neueren europäischen Privatrechtgeschichte, I I /1, hrgb. H. Coing , München 1977, p. 797 ff.). 49 The provision had been contained in Projet, 1801, at articles 308-312, and kept in the Revision, 1803, except for the moving of art. 308 to title ΧΠΙ Des prescription et des fins de non-recevoir.

Codification and Lex mercatoria

137

foreign ones, which were distant and consequently difficult to pursue. He agreed, however, that compulsory arbitration was unnecessary. After further discussion of the project, the Conseil d'État decided on its adoption and the arch-chancellors arranged for its communication officeuse aux sections du Tribunat. The interior and legislative sections of the Tribunat made their observations, which mainly concerned the correct drafting of the individual articles, and on 5 September Corvetto presented a definitive version to the Conseil, which approved it. Three days later, Corvetto as "orateur du gouvernement" expounded - flanked by the councillors Jacques-Francois Bégeouen (the above-mentioned expert on economic-financial matters and the representative in the Conseil of the world of industry and commerce from which he came) and Jean-Philibert Maret (brother of the highly influential sécretaire d'État Hugues-Bernard) - the reasons for the project for the two titles to the Corps législatif 0. He also explained why they had been treated jointly: both in assurances and in contrats à la grosse one of the parties was subject to maritime risks - in one case the lender, in the other the insurer so that "cette analogie influe sue leur essence". After the codification, Locré took the same view. He listed the similarities and differences between the two institutes and emphasised that the Rennes court of appeal had even proposed that the two titles of the second book on contrats à la grosse and assurances should be merged together, given the close connections between the two contractual figures. 51 It was a traditional principle. Valin had been explicit on the matter in his commentary on title V of the Ordonnance51: both types of contract had "pour base le péril que prennent respectivement sur eux l'assurer et le prêteur", and the normative basis was constituted by the titles De nautico foenore of the Corpus iuris civilis and by the work of legal science on these Justinian sources 53. The spread of the insurance contract was dri50

On these personages see the relative entries (both by J. Tulard), in Dictionnaire Napoléon, dir. J. Tulard, Paris, 1989. The text of Corvetto's exposé des motifs is in AN, C 702, no. 47 (ter); Locré includes all of it in Législation. 51 Locré, Esprit du Code de Commerce, III, p. 321 (in commentary on art. 311). With regard to the contributions made to the government committee at the time of the first project, particular mention should be made of that by the commercial court of Le Havre, which analysed in detail the changes to be made to the maritime regime of 1681, and especially to the contrat à la grosse, which was seen at the time of the ordonnance as an instrument to foster France's still relatively underdeveloped maritime trade; Observations des Tribunaux de Cassation et d'Appel, des Tribunaux et Conseils de Commerce, I I / I , pp. 458-460. 52

R.-J. Valin, Commentaire sur l'Ordonnance de la marine du mois d'août 1681, Poitiers, 1829 [I ed. 1760], p. 443. Cf. F. Roussarie, L'assurance maritime dans le Commentaire de Valin, in Revue de la Saintonage et de l'Aunis, cit., pp. 191-204. 53 D. 22,2; C. 4, 33.

138

Riccardo Ferrante

ven by the practice of the Italian merchants, whereas, besides Roman law, the sources of the contrat à la grosse resided in northern European texts (and therefore practices): Roles d'Oléron, Laws ofWisby, Guidon de la mer, the rules of the Hanseatic towns 54 . Émerigon had emphasised the different situations of the sources relative to the two institutes thus: "Le drot civil dévelloppe très-bien les principes du contrat à la grosse; mais il est muet au sujet du contrat d'assurance. Ce fut principalement pour ce dernier contrat, que le rédacteurs de l'Ordonnance eurent recours aux loix du moyen âge, et aux usages de nos voisims

Corvetto began with a declaration of faith in the dogma: "Ici encore, l'ordonnance de 1681 a éclairé nos travaux, et nous nous bornerons à vous indiquer avec soin les cas, extrêmement rares, dans lesquels il nous a paru nécessaire d'en suppléer ou d'en changer les dispositions"

New obligations were imposed in contrats à la grosse: in particular, given the privileges enjoyed by the lender with respect to ordinary creditors, registration with the tribunaux de commerce. Adjustment was made to a usage by now prevalent by providing that this type of contract should be "négociable par la voie de Γ endossement". Changes were made to the regulations on the annulment of contracts, and now prohibited was "de prêter à la grosse sur les loyers des gens de mer" (which was previously possible for up to half the wage). This was established because otherwise crews would have been less concerned to protect their vessels (which if lost, and with it their wages, they would owe nothing to the lender), and because the "profite maritime" (the interest due from the borrower, which in this case was the crew member) was much higher than the ordinary interest and could be justified only if it corresponded to a significant economic operation yielding extraordinary profit to the debtor (usually a high-level merchant). But overall the theme seemed by now to have grown largely obsolete. With respect to the practices covered by the ordonnance of 1681, the contrat à la grosse was much less widespread, while instead "le système des assurances s'étant amélioré depuis cette époque, les rapports ont entièrement changé". 54 R.-J. Valin, Commentaire, pp. 416 ff. ("Le prêt à grosse aventure est un contrat par lequel le prêteur, en considération de ce qu'il perdra sa somme, si la chose sur la quelle il fait le prêt vient à périr par cas fortuit, est autorisé à stipuler un intérêt ou profit extraordinaire pour le cas où la chose arrivera à bon port"). About the northern European regulations (in particular Hansischer Rechtskreis and the case law of the Admiralty Courts), E.-C. Frentz, Cambio marittimo - Bodmeri - Respondentia: Kreditinstrument des Kapitäns in der Controverse, in The Growth of the Bank as Institution and the Development of Money-Business Law, ed. V. Piergiovanni , Berlin, 1993, pp. 311-343. 55

B.-M. Émerigon, Traité des assurances et des contrats à la grosse, Marseilles, J. Mossy, 1783,1, p. II (Préface). The definition of the insurance contract was taken from Guidon de la mer (p. 3).

Codification and Lex mercatoria

139

In effect, the bottomry loan - an "insurance sum paid in advance" - or an amount of money repaid with interest i f no accident or loss had occurred - was the origin of the insurance contract (if not indeed the final stage in the evolution of the same institute) 5 6 . W i t h the passage of time, in fact, the amount transferred by means of the contract à la grosse no longer served the purposes of business but instead constituted a reserve of capital to be used in the event of loss or accident. And yet - it was argued in the Conseil d'État - large-scale trade was impossible i f the bottomry system continued to prevail; required instead was the insurance system, a "beau contrat, noble produit du génie, et premier garant du commerce marittime". Thus confirmed was a position already taken up in French maritime jurisprudence. Emerigon - in linking the two parts of his work - had well summed up the problem of the origin of the two institutes and their temporal sequence: "Le contrat à la grosse et celui d'assurance, ont entr'eux une grande affinité. Ils paroissent souvent régis par les même principes. Ce sont deux freres jumeaux, auxquels le commerce maritime a donné le jour; mais qui ont chacun une essence et une nature particulières. On ne sauroit disputer le droit d'aînesse au contrat à la grosse. Il jouit de certains privileges dont le contrat d'assurances se voit privé ; mais celui-ci a su acquérir un plus vaste empire; et sa noblesse, quoique moins ancienne, l'emporte parmi nous sur celle de l'autre " 5 7 . In the Code de commerce , the changes made with respect to the ordonnance on insurance matters mainly concerned a number of formal requirements with significant implications for debtors. It was also made possible to derogate from the ban on life insurance in the case of slaves, and a new provision was introduced on contract annulment in the event of misrepresentation by the insuree. Finally, on 15 September the rapporteurs for the two sections of the Tribunat proposed the vote d'adption and its motifs , while during the same session the 56

L. Goldschmidt, Storia universale del diritto commerciale, Torino, 1913, pp. 274-94; G. Cassandro, Genesi e svolgimento storico del contratto di assicurazione, in Id., Saggi di storia del diritto commerciale, Napoli, 1974 (Enciclopedia del diritto, III, 1958), pp. 239-43. Previously on this theme, G. Salvioli, L'assicurazione e il cambio marittimo nella storia del diritto italiano, Bologna, 1884. On "risk at sea and the insurance loan" see E. Spagnesi, Aspetti dell'assicurazione medievale, in L'assicurazione in Italia fino all'Unità. Saggi storici in onore di Guido Artom, Milano, 1975, pp. 36-43; in the same book, on the codification period, G.S. Pene Vidari, II contratto di assicurazione nell'età modema, pp. 193 ff. For an example in Italian case law, which in this sector the Code de commerce applied in Genoa even after the Restoration see L. Sinisi, Giustizia e giurisprudenza nell'Italia preunitaria. II Senato di Genova, Milano, 2002, pp. 339-441 (see also V. Piergiovanni, L'Italia e le assicurazioni. Casi giudiziari, Milano, 1981); on historical-economic aspects see A. Basso, Prestiti a cambio marittimo e assicurazioni marittime in Sicilia nella prima metà dell'Ottocento, in Annali di Storia modema e contemporanea, (2002), pp. 555 - 76. 57

Émerigon, Traité des assurances et des contrats à la grosse, II, p. 377. This time the original sources of the contrat à la grosse were romanistic (starting from the leges of D. 22,2 - De nautico foenore ); pp. 380 ff. The contrat à la grosse avanture therefore coincided with the "pecunia traiectitia" (also "pecunia nautica", or "foenus nauticum") and the definition was taken form Pothier; p. 385.

Riccardo Ferrante

140

Corps législatif also approved the fourth law of the code, with 228 votes in favour and 3 against. The final text - printed on parchment - of the entire code was prepared between 10 and 24 September. Each of the seven fascicles into which it was divided - such was the plethora of laws in the code - bore the Emperor's signature, the order for inclusion in the Bulletin des lois , and the directive for its dispatch to courts and tribunals. The ministre sécretaire d'État made some final adjustments to the printer's copy: the various books were given titles, the articles were numbered, some minor additions were made, and typographical errors were corrected. The most significant changes were made to title X of book II, to which added by hand was the title "des assurances" initially intended for its first section, which was now entitled "Du contract d'assurance de sa forme et de son object" 58 . 4. Locré was quite clear in his verdict on the codification of commercial law: "Mais enfin, ce code est-il bon, est-il mauvais? Il est l'un et l'autre: bon dans les dispositions qu'il a empruntées des lois antérieures, dont il a su améliorer quelques-unes, qu'il a réunies et disposées sur un plan régulier; mauvais dans les parties qui sont de son invention. Je veux surtout parler du livre des faillites, qui était son objet principal, et qui lui appartient en entier

,,ςα

.

In short, the problem was the relationship with the ordonnances of Louis XIV, and especially so with regard to the maritime part. The members of the government committee had been equally if not more explicit about the risks of their undertaking in the Analyse of their second project: "L'ordonnance de 1681 que la reconoissance publique a placée au rang des plus beaux monumens de législation qui honorent le siècle de Louis XIV, nous remplissait d'une juste défiance; nous avons craint qu'on ne nous accusait d'une profanation coupable, si nous osions y toucher" 60

It was realized that the times had changed, but renewal required a titanic effort, and the endeavour was fraught with a sense of guilt; indeed, Corvetto risked condemnation as a 'innovator'. Yet renewal was inevitable if natural development was to be given to the reforms of the revolutionary period, and to the disciplinary distinctions and simplifications introduced. Though advocated by the minority, the option of absorbing the maritime law of contract into the Code de commerce , and the substantial elimination of the unity and autonomy of maritime law (as freestanding and 'international') prevailed. It was a debate that thereafter persisted until recent times 61 . 58 AN, AF (Archives du pouvoir exécutifs) IV (Secrétaire d'État impériale) 1000. The texts were those approved by the Corps législatifs ; cf. AN, C 702. 59 Locré, Législation, XI, p. 79 (Prolégomènes, cap. VII - Histoire du code de commerce). 60 Revision, 1803, p. 51. 61 S. M. Carbone, La disciplina giuridica del traffico marittimo internazionale, Bologna, 1982, pp. 13-29.

Codification and Lex mercatoria

141

I f the Code de commerce in 1807 marked the definitive end of the lex mercatoria , viewed as the customary law which largely applied internationally, then state legislation would stand as the insuperable limit to the free elaboration of business law. One would say that Montesquieu simply interrupted the natural development of a law that should have lived beyond the control of the legislator. In reality, as even the brief treatment here has shown, the process was painful one and not devoid of ambiguity. The attempt to expain current tendencies towards a 'modern' lex mercatoria via the medieval - or even ancient 6 2 - legal reality appears ill-founded. It is improper to lump two such distant situations together, even more so i f the purpose is to 'reject' on (allegedly) historical bases - as done by the proponents of 'anational law' - 'legalist and statist positivism' (perhaps by resorting to Santi Romano's interpretative grids) 6 3 . The lex mercatoria - and I mean its 'modern' version' - has probably little or nothing to do with anything in historical experience. A t the moment, in this sector, it seems appropriate to express oneself in nothing more than probabilistic terms, relying on the traditional principles of contractual freedom - those, that is, recognized by State l a w 6 4 .

62 "La lex mercatoria serait à la fois une renaissance et une réminescence du droit marchand médiéval ( . . . ) . Ce faisant, elle constituerait une expression moderne du corporativisme, dont on peut considérer qu'il remonte à une époque plus lointaine. C'est ainsi qu'un droit du commerce international - jus mercatorum - régissait déjà les relations entre commerçants ressortissants de l'Empire romain, sous l'Antiquité, avant de dominer les échanges en Europe médiévale"; Osman, Les principes généraux de la lex mercatoria, p. 9. 63 Ibid. p. 12 and passim. The lex mercatoria, devoid of any state intervention, would constitute an "ordre juridique" not only "anationale" but also "a-interétatique" (p. 13). "Le positivisme légaliste, parce qu'il a pour effet de subordonner «la reconnaissance du caractère de règle de droit de la lex mercatoria à sa reconnaissance par le droit étatique» [B. Oppetit] doit être énergiquement rejeté dans le droit anational. Les règles issues des praticiens bénéficient bel et bien d'une juridicité originaire" (p. 299). 64 "The modem lex mercatoria is probably nothing other than internationally uniform contractual practice. The fact that it is interntionally uniform gives it considerable persausive force over individual national courts; but for all that, it is still only contractual practice binding within individual countries by virtue of the principles that give binding effect to contracts"; F. Galgano, Diritto civile e diritto commerciale, in Atlante di diritto privato comparato, edited by F. Galgano , Bologna, 1993, p. 44. From a theoretical perspective, one should always bear in mind the picture presented in B. Goldman, Frontières du droit et 'lex mercatoria', in Archives de philosophie du droit, 9 (1964), Le droit subjectif en question, pp. 177-92.

MAURA FORTUNATI

The fairs between lex mercatoria and ius mercatorum Some years ago Carlos Petit advised us to be cautious when using the expressions ius mercatorum and derecho mercantil as synonyms, for although each is the translation of the other they are distinguished more by culture than by language.1 The same consideration perhaps also applies to the expressions lex mercatoria and ius mercatorum . Around eighty years have passed since Henry Pirenne pointed out that whilst there is no doubt as to the existence and importance of customary mercantile law, little is known about its content, and even less can one give a name to it with certainty. 2 Pirenne's remark are still valid today, for the expression ius mercatorum neither appears in any text, nor seems to pertain to the lexicon, of the legal or mercantile culture of the Middle Ages and the early modern age, when the recurrent terms were mercatoria consuetudo or mercatorius stylus. Only in the seventeenth century does one find the first mention of ius mercatorum. Johan Marquard employed the expression in a work which considerably modified the perspective of previous commercial doctrine and "constructed around the concept of ius singulare mercatorum a system that incorporated the specialism of mercantile usages and justice into the sphere - entirely juridical - of legal privileges". 3 Gerard Malynes, for his part, declared that his decision to entitle his treatise "Lex mercatoria" was deliberate: ius mercatorum and lex mercatoria have very different meanings, he affirmed, "because lex mercatoria is a Customary Law approved by the authoritie of all Kingdomes and Commonweales, and not a Law established by 1

This and other interesting considerations are set out in C. Petit , "Mercatura y ius mercatorum. Materiales para una antropologia del comerciante premoderno" in Id. (ed.), Del ius mercatorum al derecho mercantil. III Seminario de Historia del Derecho Privado, Sitges, 28-30 de mayo de 1992, Madrid, Marcial Pons, 1997, pp. 15-70. 2 H. Pirenne , Le città del medioevo, Rome - Bari, Laterza 1971 (It. trans, of Les villes du Moyen Age, Brussels, Lamertin, 1927), p. 88. 3 F. Migliorino , "Mysteria concursus". Itinerari premoderni del diritto commerciale, Milan, Giuffrè 1999, p. 37. On Johann Marquard and his work Tractatus politico - iuridicus de iure mercatorum et commerciorum singulari, printed in 1662 in Frankfurt, see H. Mohnhaupt, "'Jura mercatorum' durch Privilegien. Zur Entwicklung des Handelsrechts bei Johann Marquard (1610-1668)" in Weg europäischer Rechtsgeschichte. Karl Kroeschell zum 60. Geburtstag dargelegt von Freunden, Schülern und Kollegen, Frankfurt am Main, Lang, 1987, pp. 308 -23.

144

Maura Fortunati

the Soveraignitie of any Prince, either in the first foundation or by continuance of time". 4 If the term lex mercatoria denotes the trade customs disseminated by the merchants themselves, and ius mercatorum the same customary rules in their theoretical - dogmatic contraposition against - and composition with - ius commune and in their relationships with the public authority, we may confidently assert that the study of fairs and the customs of fairs is a valuable undertaking to build knowledge of either the former or the latter. Moreover, the importance of the fair as the place appointed for application of mercantile law has already been stressed. Goldschmidt and Pirenne himself wrote that the great fairs saw the first application of the law merchant and elaboration of a commercial case-law which, despite differences among countries, languages and national laws, were everywhere identical.5 Again, it suffices to point out that when the ancient English treatises on the lex mercatoria dealt with the places in which mercantile law found pre-eminent application, they always flanked cities, ports and market towns with fairs as the ideal terrain for the free and autonomous rise and development of customary mercantile laws. Indeed, as further confirmation of the reciprocal dependence, the recently-edited treatise Lex mercatoria adds that, because transactions took place in fairs on a daily basis, the lex mercatoria found constant application within them.6 It is therefore no coincidence that the first important collection of laws on fairs - the regulations on the fairs of Champagne dating to the thirteenth century - bears the title "Ce sont le privileges et coustumes des foires lesquelles le Sire du lieu promest à tenir", which attests to the fact that, besides the decrees of the lord, of great importance at such events was observance of mercantile tradition and practices. Owing to its characteristics, therefore, the fair was the ideal place for the application and development of a custom-based law. John Gilissen has described fairs as "des rassemblements importants et organisés, a périodicité régulière et espacée, de marchands venant de régions éloignées"7: gatherings, that is to say, organized at 4 Gerard Malynes , Consuetudo vel lex mercatoria, London 1622, repr. Amsterdam, Theatrum Orbis Terrarum - W. J. Johnson, 1979, epistle dedicatorie to the courteous reader. 5 L. Goldschmidt , Storia universale del diritto commerciale, Turin, Unione Tipografico editrice torinese 1913 (It. trans, of Universalgeschichte des Handelsrechts, Stuttgart 1891) pp. 177 ff. and H. Pirenne , Le città del medioevo, op. cit., p. 88. 6 "Advertendum est quod mercatum huiusmodi se habet in quinque locis tantum, scilicet in civitatibus, nundinis, portibus supra mare, villis mercatoriis et burgis ( . . . ) Unde ulterius est videndum quod sicut mercatum se habet in quinque locis, ita semper sequitur lex mercatoria sive lex mercati". Cf. M. E. Basile /J. Fair Bestor/D. R. Coquillette / C. Donahue (eds.), Lex mercatoria and Legal Pluralism: A Late Thirteenth Century Treatise and its Afterlife, Cambridge, The Ames Foundation, 1998, p. 1 of the transcription of the manuscript. 7 J. Gilissen , "La notion de la foire à la lumière de la méthode comparative", in La foire. Recueil de la Société Jean Bodin, Brussels, 1953, p. 330.

The fairs between lex mercatoria and ius mercatorum

145

regular intervals by the public powers and attended by numerous merchants from distant regions. As a privileged legal space in which transactions were freely performed, the fair was the ideal meeting place for foreign merchants and for the application of mercantile laws which aspired to universality. From the Middle Ages onwards, therefore, within the compass of fairs there arose a special law characterized by the observance of specific rules protecting the persons and goods present, by the application of exceptional guarantees (exceptional in that they were extraneous to the sphere of ius commune) protecting the obligations contracted, and by the presence of special courts administering justice in particular forms. The specialization, or evolution, of fairs which came about at the beginning of the modern age, and which led to the birth of new, specialized events in the credit and exchange sector, did not substantially alter the specific nature of the law of fairs. Besides these distinctive features, the study of the law of fairs may prove interesting in another respect. The fair, in fact, was of twofold nature. On the one hand, as said, it was a commercial event attended exclusively by merchants; on the other, it was an instrument of economic policy, an event desired and promoted by the public powers which in part and in various ways exerted (or sought to exert) control over it. Some years ago, Robertino Sabatino Lopez pointed out that during the Middle Ages - mainly outside Italy - ordinary commerce encountered a series of obstacles in an unfavourable feudal setting and amid a fundamentally agricultural society. "Even the prince most greedy for money", wrote Lopez, "and the city most devoted to a protectionist policy would realize that some temporary concession was necessary for the good functioning of a market, and that a market in expansion would ensure a flow of money and supplies which largely compensated for the suspension of the charges normally imposed on commercial activities". Concessions and privileges were consequently granted as the result of a compromise reached within well-defined spatial and temporal boundaries - those of the fair. 8 The concentration within the fair of a twofold interest - that of the merchants who gathered there, and that of the political powers who decided and supported its institution - provides ideal terrain on which to study how the need to reconcile diverse interests led to the creation of substantially new economic and legal actors. Investigating the formation of the law of fairs, reconstructing its relationships with the ius commune and local laws, examining how it was applied - in other words, studying the phenomenon 'fair' in its legal aspects - requires one to consult heterogeneous sources (jurisprudence, statutory law, royal legislation, specific seigniorial or communal regulations) and to take account of the numerous different components of the gatherings in question. 8

R. S. Lopez, La rivoluzione commerciale del medioevo, Turin, Einaudi, 1975, p. 114.

10 Piei^iovanni

146

Maura Fortunati

Undoubtedly one of the most significant and distinctive features of fairs, in both the medieval and modern ages, and independently of their type (for the sale of goods or for exchange), was the existence of a special jurisdiction. This consisted of special courts which, although they bore considerable similarities in form and procedure to the justice administered by the traditional market courts, were endowed with features that should be emphasized. In this regard, fairs became, as Giovanni Cassandro put it, "islands of special and singular law in the sea of the ius commune" 9. This particular system began to display its features and to express its independence at the time of the fairs of Champagne - whose economic structures and legal solutions largely shaped the model that subsequent fairs would adopt. Instituted on those occasions were the special jurisdictions that came to characterize trial procedure at fairs courts in subsequent centuries. Endowed with exclusive competence both ratione materiae and ratione personae, these were courts which, in keeping with the mercantile style, were enjoined to adjudicate summarie, de piano et sine strepitu iudicii. 10 Speed was even more of the essence in a context of short duration (that of fairs) in which disputes had necessarily to be resolved rapidly and execution had to be immediate. Considering its importance, the administration of justice is an ideal vantage point from which to describe the law of fairs. For this reason, I believe it worthwhile to examine a number of cases which shed light on whether and to what extent the fairs' courts used autonomous procedural instruments unconstrained by ordinary law, and thereby gave rise to an original system, and conversely the influence on the formation of the law of fairs exerted by ius commune and local usages and rules. Despite a number of similarities, in fact, we find deviations from the rules of the ius commune and ordinary procedure which relate to a world and usages that were typically mercantile, and which give the impression that they evolved over time in always partly autonomous and distinctive manner. On perusing the rules that from the mid-thirteenth century onwards regulated justice at the fairs of Champagne, we find that they are largely similar to those of the summary procedure usually applied in the same period by the mercantile and ordinary courts (and which shortly thereafter was disciplined at the normative level as well 11 ). The procedure regu9 G. Cassandro , "La société mercantile italiana nel medioevo" in Saggi di storia del diritto commerciale, Naples, ESI, 1974, p. 15. 10 The formula recurs almost everywhere. Interesting in this regard is the provision contained in the Verona statutes of 1327, which once again insist on the customary nature of these forms of the administration of justice: "Consuetudo est quod de his que aguntur in ipsis nundinis vel ipsarum occasione, summarie et sine strepitu iudicii cognoscantur et per sententiam terminetur". S. A. Bianchi/R. Granuzzo (eds), Statuti di Verona del 1327, Rome, Jouvence, 1992, II, p. 397. 11 As is well known, it was in the early years of the thirteenth century that Clement V's decretal Saepe laid down the rules - followed by the civil as well as by the canon law courts -

The fairs between lex mercatoria and ius mercatorum

147

lated by the rules collected in the Privileges et coustumes of the French fairs provided for judicial sessions which were held three times a day, with the possibility that the defendant might obtain peremptory exceptions, but few and rare dilatory exceptions, and no declinatory ones which challenged the judge or claimed the incompetence of the court. 1 2 Very brief cross-examination and the possibility for the court to prevent the flight of the defendant by means of arrest and detention were further typical features of procedure in Champagne. 13 As to the evidentiary system, this differed little from ius commune, consisted of testimonial evidence, oath-taking, and especially written But the evidence par excellence consisted of a letter of obligation with seal affixed to it, or one inscribed in the fair's register: this received full efficacy from the authority of the magistrates. 14

in that it evidence. the fair's probatory

Although nundinal justice was largely similar to that of the curiae mercatorum , there was one feature that distinguished it from the latter. I refer to the devices

of the summary procedure that had already been incorporated into communal customary law for a century and which the Church implemented with especial insistence, especially as an extra-judicial procedure to be used in arbitrations. See on this G. Salvioli, "Storia della procedura civile e criminale" in P. Del Giudice (ed.) Storia del diritto italiano, Milan, Hoepli 1925; E. Cortese , II diritto nella storia medievale. II. II basso medioevo, Rome, II Cigno - Galileo Galilei, 1995, pp. 372-3; M. Ascheri, "II processo tra diritto comune e diritto locale: da questioni preliminari al caso della giustizia estense", in Quademi storici, 101, 2/1999, (pp. 355-87), in particular pp. 361-3; Id ., I diritti del Medioevo italiano. Secoli X I - X V , Rome, Carocci, 2000, p. 335, where at note 9 the author points out that the summary trial is "an enormous topic which still awaits through examination". 12

"La justice tiendra chascun jour trois fois siège et orra toutes maniérés de plaintes, et auront deffendeurz toutes dilacions de droit, fors que la justice ne donnera journée plus longue que du soir au matin et du matin au soir, si ce n'est de l'accord des parties". Ce sont les privilèges et les coustumes des foires lesquelles le sire du lieu promect à tenir, edited by M. F. Bourquelot, Etudes sur le foires de Champagne sur la nature, Γ etendue et les regies du commerce qui s' y faisait aux 12., 13. et 14. siecles, Paris, Imprimerie imperial, 1865, no. 12, p. 323. That the judges of the fairs courts could reject exceptions was specifically envisaged by the forteenth-century ordinances for the reform of fairs. Cf. art. 20 of the Ordonnance of 1344. 13

According to article 13 of Ce sont les privilèges et les coustumes ... "sy tost que le demandeur trouvera son debteur devant la justice, il requerra, s'il luy plaist, au départir de la journée qui assignée leur sera, qu'il en soit seur le debteur, le quel sera seurté de retourner à droit par vous plaignant, sur la peine de la demande, ou ira en prison jusques à la journée et, se la justice ne voulloit estre seurté et en fust négligent, elle est tenue à rendre le corps dudit debteur ou de payer la demande. V. M. F. Bourquelot , op. cit., II, p. 323. 14 Ce sont les privilèges et les coustumes des foires . . . , op. cit., no. 20, p. 324. "Au prover sa debte faudra instrument scellé du scel desdites foires ou enregistré ou registre d'icelles, ou deulx tesmoings qui tesmoigneront par une voye ou par gaige de bataille se la cause monte plus de XX d. t." As pointed out in R. H. Bautier , Les foires de Champagne. Recherches sur une evolution historique in La foire, op. cit., (pp. 97-147 and specifically pp. 100 ff.), this and the following legislative text were somewhat belated with respect to the first fairs. Nevertheless, they provide us with a quite exhaustive picture of what were by now the standard practices adopted at the French fairs. 1*

148

Maura Fortunati

introduced to protect creditors and which, although they gradually disappeared, were distinctive of the Champagne fairs and undoubtedly one of their most significant elements. Moreover, the creation and spread of such guarantees on transactions also reflect the various stages in the evolution of an autonomous and fully operational mercantile law, and especially of a lex mercatoria. To dwell further on the Middle Ages and the fairs of Champagne, the first customary law text in their regard expressly states that "qui acroira à la foire, il s'obligera taisiblement corps et biens, meubles et immeubles".15 This placed total obligation, in "body and goods", on the creditor, and it is easily explained if one considers the ease with which a debtor could evade his contracted obligations simply by leaving the fair: whence derived the exigency to devise coercive measures able to implement judgements to their fullest extent. The procedure for recovering debts from a fugitive debtor (fugitivus one reads in the sources but, given that flight was often synonymous with insolvency, we may say 'bankrupt merchant') set out by the rules on the Champagne fairs was extremely rigorous. It provided for help to be obtained from the judicial authorities of the bankrupt's country, and if this was not forthcoming, the application of the rules on reprisal. In my view, however, this was not an ordinary reprisal procedure, given certain fundamental differences which placed the fairs courts at a level which, if not superior to other judiciaries, was nevertheless different from them. The reprisal procedure regulated by the communal statutes and the doctores of ius commune provided that the unsatisfied creditor should apply directly to the judicial authorities of the debtor's country for justice. If this proved unsuccessful, he was to submit a claim for reparation to the officials of his commune. The magistrate concerned examined the claim, and if he deemed it valid, sent one or more requests to the magistrates of the debtor's commune. If the latter failed to reply, the reprisal procedure proper got under way. The authorities of the creditor's commune asked the foreign government to force the offender or his representatives to submit themselves to justice, and if they failed to comply, issued the creditor with a writ of reprisal. With this document, the creditor could personally, or more often through the organs of the issuing commune, recoup the entire amount of the damages from the debtor's co-citizens in the territory of the authority issuing the writ. 1 6 15 Ce sont les privilèges et les coustumes des foires lesquelles le sire du lieu promect à tenir, art. 4, edited by Bourquelot, Etude sur les foires de Champagne, op. cit., p. 322. 16 On reprisal see the still current studies by G. I. Cassandro , Le rappresaglie e il fallimento a Venezia nei secoli ΧΙΠ - X V I con documenti inediti. Documenti e studi per la storia del commercio e del diritto commerciale italiano pubblicati sotto la direzione di F. Patetta/M. ChiaudanOy Turin, Lattes & C. editori, 1938; A. Del Vecchio/E. Casanova , Le rappresaglie nei comuni medievali e specialmente in Firenze, Bologna, Zanichelli 1894 (anast. repr. Sala Bolognese, Forni, 1974); D. Bizzarri , "Le rappresaglie negli Statuti e nei documenti del Comune di Siena" in Bollettino senese di storia patria, XX, 1913, and in Studi di storia del diritto italiano, Turin, Lattes & C. Editori, 1937, pp. 1 - 4 4 ; and the more recent encyclopaedia entry by Gian Savino Pene Vidari cited in the following note.

The fairs between lex mercatoria and ius mercatorum

149

Reprisal in the age of communes therefore had three components. First, the commune intervened to protect the interests of one of its citizens, although in fact the intent was to protect the entire community: "often provoked by foreign refusal to apply justice, the reprisal had always to be approved by the authority responsible for public order, which also intervened when execution was assigned to a private individual, because the consequences might affect the community as a whole". 17 Another distinctive feature of reprisal was the need to establish a relationship between two sovereign states superiorem non recognoscentes: in which regard Bartolo da Sassoferrato in his Tractatus represaliarum is clear and explicit. 18 Granting reprisal amounted to a declaration of war, Bartolo continues, and consequently, save in certain exceptional circumstances, it was precluded to subject cities. 19 A further element necessary for the granting of reprisal was that the injured party be expressly denied justice abroad. With regard to the process that gave rise to the defense de foire , this had its own distinctive features. The extremely detailed procedure - which takes up almost the whole of one of the customary law texts of the Champagne fairs - provided for different reprisals according to the citizenship of the debtor concerned. In the case of persons subject to the jurisdiction of Champagne, the wardens of the fair required all the judges of Champagne and Brie (on pain of fines if they did not comply) to force debtors to pay. In other cases, an execution order (the structure of which was determined by the 'style' of the court) was issued, on simple exhibition of written proof by the creditor, against a defaulting debtor on conclusion of the fair. The document, addressed to the competent ordinary foreign magistrates and delivered by a serjent of the court, ordered them to compel the insolvent merchant to pay the debt, proceeding with the sale of his goods if necessary. In the case of refusal or non-compliance, the wardens of the fair requested the foreign officials or their representative to appear before them, usually on the occasion of the next fair, to explain their position. If they did not, the request was made a further two times, after which the wardens imposed a defense - that is, a ban on attendance at fairs in Champagne by all citizens of the city or country concerned. 20

17 G. S. Pene Vidari, entry "Rappresaglia (storia)" in Enciclopedia del diritto (pp. 40310), p. 405. 18 "Ad secundum quaeritur quis est ille iudex cuius potestas debeat implorari? ... Si de iure communi loquamur, tunc sicut ex parte illius contra quem repraesaliae conceduntur requiritur quod superioris copia haberi non possit... et sic ex parte concedentis repraesalias requiritur quod sit talis qui superiorem non habeat". Bartolo da Sassoferrato , Tractatus repraesaliarum in Consilia, quaestiones et tractatus, Venetiis, Società dell'Aquila che si rinnova 1590 (119v - 124v), nos. 3 - 6 , fo. 12lr. 19 "Item ex praedictis sequitur quod si est aliqua ci vitas quae subest alicui Principi, seu Regi, quod nec ipsa civitas, nec aliquis officialis Principis vel Regis potest concedere repraesalias, sed ipse solus Princeps vel Rex" Ibid., no. 6. 20 Ce sont les coustumes , stille et usaige de la court et Chancellerie edited in M. F. Bourquelot, op. cit., pp. 326 ff.

150

Maura Fortunati

Reading the extremely detailed rules that regulated the procedure prompts a number of considerations. The first is that the jurisdiction of the court of the fair extended beyond conclusion of the fair itself, which gainsays the idea that its jurisdiction was confined to the duration of the event. Secondly, the court of the fair acted super partes to protect the interests of creditors regardless of their nationality: in other words, it performed the same functions as the commune to which the creditor belonged. Finally, the reprisal consisted of a sanction that differed from the standard penalty, taking the form of exclusion and interdiction of all the defaulting debtor's cocitizens from the fair, and therefore from any kind of economic activity in that particular context. But perhaps the most interesting aspect is that the fairs courts' exclusive jurisdiction over debts contracted was recognized ubiquitously and almost unconditionally; so that also recognized was its supremacy, so to speak, over foreign jurisdictions. Governing this symbolic subservience of the latter was the superiority of the customary law of fairs (and also of the lex mercatoria ?), which according to the documents, "exceeds and transcends all the other customs of every land and place". 21 By virtue of these practices, the authority of the fair officials was recognized, and in order to comply with their requests specific laws were promulgated. An example is provided by Venice, where chapter 43 of the Capitulary of the sopraconsoli gave those officials the task of implementing the requests of "magistri nundinarum Francie", and to do so "secundum consuetudines nundinarum". 2 2 Again, serving the same purpose, and of particular importance for a mer21

On this see the documents cited by H. Laurent, "Droit des foires et droit urbains aux XlIIe et XIVe siècles" in Revue historique de droit français et étranger, IV series, X I (1932), (pp. 660-710), p. 674. 22 Magistrates with competence on commercial matters, the sopraconsoli supervised bankruptcy, pledges and reprisals. On the office see Marco Ferro , Dizionario del diritto comune e veneto, Venice, Modesto Fenzo, 1781, tome IX, entry Sopra - consoli, pp. 89-91. Among the provisions in their regard, there was one on preventing the damage due to possible reprisals by the judges of the Champagne fairs and which stated how to comply with their requests. "Millesimo .CCCXVII., die .XVII. octobris, indictione prima. Cum multe littere venerint et veniant sepius a magistris nundinarum Francie pro debitis contractis per nostras fideles vel suos factores in corpore nundinarum; et nisi fiat per nos quod iustum est et sufficiat, possent alii nostri fideles facile, qui culpam non haberent, portare periculum et damnum non modicum. Capta fuit pars in consilio Rogatorum et de .XL., quod committatur supraconsulibus et iniungatur in eorum capitulare, quod tarn de litteris et mandatis dictorum magistrorum missis, quam de aliis, que mitterentur de cetero contra nostros, debeant et teneantur compellere nostros, a quibus peteretur, dare et prestare bonam et sufficientem securitatem de parendo iuri et de mittendo vel eundo ad ipsos magistros ad defendendum ius summ, secundum consuetudines nundinarum et de satisfaciendo id, quod sententiatum erit contra eos, vel, si aliqui nostri occasione ipsorum debitorum essent dampnificati, de satisfaciendo suum dampnum. Et si non possent dare securitatem, debeant facere eos detineri personaliter...". The capitulary is transcribed in G. /. Cassandro , Le rappresaglie e il fallimento a Venezia nei secoli XIII - X V I con documenti inediti, op. cit., pp. 181 -192.

The fairs between lex mercatoria and ius mercatorum

151

cantile association like that of Siena - which engaged in a large volume of trade at Champagne's fairs - were the rules in the Constitute of the Commune of Siena which required the podestà to act with maximum rigour in prosecuting those who had committed "theft" (robaria ) or who had "cessato ο fuggito con avere d'alcuno".23 Of course, there was no lack of conflict. Not always did the courts of ordinary law look kindly on this autonomy and this exception to the rules of ius commune. Moreover, examination of French judicial acts shows that on the one hand there was a tendency by the fairs courts to extend their jurisdiction and powers excessively, while on the other, the central organs or royal power sought to thwart these aspirations. In not infrequent cases, as the rich documentation edited by Laurent corroborates, the magistrates of fairs were not content with defense alone but insisted that culprits be brought before them i f the sale of their goods had not been possible or had yielded insufficient revenues, and especially in the case of criminal offences. They thus arrogated the right to be the only judges empowered to decide such matters. 2 4 For their part, the foreign city magistracies were resentful of interference by the fairs courts and did everything possible to avoid complying w i t h the requests for reprisals sent them by the latter.

23 In the distinzione I of the Costituto, chapter 512 Che la podestà faccia pilliare chi facesse alcuna robbaria ne le fiere overo mercati, in order to obviate the damage caused by such offences, required the podestà to arrest and detain the culprit until full recompense had been made: "Anco, conciosiacosaché per le robbarie et maletolte fatte ne Ii tempi passati in più luoghi, li mercatanti di Siena abiano ricevuto grandissimo danno et grande impedimento de li camini, statuto et ordinato è che qualunque persona, overo persone, facessero alcuna robbaria overo maltolletto ne le fiere overo mercati, overo in alcuna altra parte, la podestà sia tenuto colui, el quale cotali cose commettesse overo facesse, pilliare in avere et persona, et ditenere ne la carcere del comune, infino a tanto che de la detta robbaria et malatolta interamente sodisfaccia ". Even more specific are the provisions dating to the end of the thirteenth century set out in chapter 277 of the distintio Π, which make express mention of French fairs and bankrupt merchants: "Anco, statuimo et ordiniamo che missere la podestà di Siena sia tenuto et debia, a petitione et rinchiesta de li signori consoli de la Mercantia overo di due di loro, fare prendere et ditenere coloro overo colui, e' quali si cessassero overo fugissero overo si cessasse overo fiigisse et si fussero cessati overo fugiti de le fiere di Francia con avere d'alcuno". Cf. M. Salem Elsheikh (ed.), Il Costituto del comune di Siena volgarizzato nel MCCCIX - MCCCX, Siena, Fondazione Monte dei Paschi di Siena 2002, tome I, pp. 358; 568. In the large body of literature on the presence of Sienese traders at the fairs of Champagne see in particular L Zdekauer , U mercante senese nel dugento: conferenza ... - Siena, Tip. C. Nava, 1900; A. E. Sayous, Operations des banquiers italiens en Italie et aux foires de Champagne pendant le 13. siecle, Paris, Sirey, 1932; M. Tangheroni y "Siena e il commercio intemazionale nel Duecento e nel Trecento", in Banchieri e mercanti senesi, Siena, Monte dei Paschi di Siena, 1987; R. Mucciarelli , Tolomei banchieri di Siena. La parabola di un casato nel ΧΙΠ e XIV secolo, Siena, Protagon editori, 1995. 24 "Et se la vendue ne sofisoit, que vous nous envoissiez les corps des diz principaus debteurs et de touz les diz ploiges souz bonne garde". H. Laurent , "Documents relatifs à la procédure en foires de Champagne et de Brie ...", in Bulletin de la Commission royale des anciennes Lois et Ordonnances de Belgique, 1929, tome ΧΙΠ, no. 2, p. 15.

152

Maura Fortunati

One example taken from the rich documentation on the Mercanzia of Florence edited by Grunzweig will suffice. The wardens of the Champagne fair were in pursuit a certain Giovanni Techi of Florence for a debt contracted at the fair and then transferred by endorsement to another creditor. The official of the Mercanzia replied to the request for reprisal by the French judges that he had been unable to locate Techi, who, he said, had left Florence. Four months later there arrived the reply from the wardens of the fair, who wrote that they had been informed by the creditor that Techi was still living in Florence: indeed, they provided his address, adding with barely concealed sarcasm that he could be seen walking past the Mercanzia every day. Whereupon the Florentine officials responded by saying that they had summoned Techi to appear before them, which he had done; but they once again found an excuse for not implementing the request by the judges of the fair. 25 However, as the case just reported demonstrates, the competence of the courts of the fairs was never openly denied or contested. This was a possibility that was probably felt to be alien, as contrary to some principle which though unwritten was nevertheless binding. Although the discussion has thus far concerned the Middle Ages, the nundinal jurisdictions was certainly not unique to that period alone, nor to particular cycles of fairs like those of Champagne. Even when the function of fairs and of the mercantile class changed, the efficacy of the law merchant remained essentially the same. The forms in which justice was administered, as described above, were certainly not exclusive to the French fairs and to the medieval world. Moving to the heart of the modern age, in much more recent times and in diverse geographical and political contexts, changes came about in the situations, the composition of courts of law, forms of control and the magistracies competent to adjudicate appeals, but the procedural rules did not vary to any significant extent. At the Lyon fair, for example, or the exchange fairs of Piacenza, or the seventeenth-century commodities fairs - to mention only some salient cases - the magistrates continued to utilize rapid procedures and to rely on commercial customary law. It is sufficient to read two of the chapters drawn up for the fairs of Piacenza to find confirmation that an identical juridical situation still persisted. 26 The first is chapter 37, wherein it is stated that the judges of fairs "giudicaranno secondo a loro parrà convenirsi di giustizia, risguardata la sola verità del fatto, tralasciando le 25

A. Grunzweig , "Le fonds de la mercanzia aux archives d'état de Florence" in Bolletin de l'Institut historique belge de Rome, 12- 1932, no. 17, nos. 21-22 . 2 6 There is a large body of literature on the economic aspects of the exchange fairs of Besançon and, later, Piacenza. Information of a more general nature can be obtained from various works: see e.g. F. Braudel , Civiltà e imperi del Mediterraneo nell'età di Filippo Π, Turin, Einaudi, 1965, pp. 528 ff., but the essential references are still D. Gioffrè , Genes et les foires de change. De Lyon à Besançon, S.E.V.P.E.N, 1960, and especially J. G. Da Silva , Banque et crédit en Italie au XVIIe siècle, I, Les foires de change et la dépréciation monétaire, Paris, Klincksieck, 1969.

The fairs between lex mercatoria and ius mercatorum

153

cavillationi, senza servar termini e con brevità di tempo secondo il stile mercantile". This is a norm that once again conveys the image of a magistracy of fairs based on strictly mercantile procedure and applying its own rules, in which respect it was entirely unconstrained to observance of the local Genoese legislation. Chapter 39 on the Bisenzone fairs leaves no doubts on the matter, stating that "in dette fiere si debbano osservare solamente Ii suddetti capitoli et ordini e graltri che in l'avenire facesse il Serenissimo Senato". In the case of lacunae, recourse was to be made to the "mercantile style" and to the customs observed at fairs, and in no wise shall attendance upon or observance be made of the Genoa Statutes; indeed it is expressly intended that transactions made in the past and which will be so in the future at those fairs, and for them in Genoa, shall be exempt from observance of the said statutes.27 This total exemption from the local statutory laws was reiterated in the city's legislation, where the chapter on exchanges in the civil statutes regulates the payment of letters of exchange and then declares "salva sempre la disposizione delle leggi delle fiere e gli ordini e decreti e costitutioni sopra i cambi fatte e da farsi, alle quali in alcuna cosa non sia derogato". 28 Also the juridical doctrine of the time was fully aware of the mercantile nature of the justice of fairs - even if, as often happened, it was administered not by merchant judges but by royal officials, or at any rate publicly appointed ones.29 It is sufficient to cite only certain works, and in particular those of the doctores in the Naples area - these being the most attentive to description, analysis and classification of everyday trading practices in their region, which had an exceptionally large number of fairs - to gain a sufficiently detailed picture of the specific commercial procedures followed, and to realize, once again, the influence exerted on their definition by local customary, and especially mercantile, law. When transferred from practice to theory, the prerogatives of the curiae nundinarum continued to preserve their substantial identity with the mercantile courts, to which, as is natural, the courts of fair were often linkened by legal science. Just as the mercantile courts acted with rapidity, summary procedures and fairness, so too, according to the jurists, should the courts of fairs, and in compliance with the unwritten rules that usually regulated relationships among merchants. Thus deli27 Capitoli et ordini delle fiere di Bisenzone in Gio Domenico Peri , II Negotiante, Venetia, presso Gio Giacomo Herz, 1672 (repr. Bottega d'Erasmo, 1972), pp. 246; 248. 28 Degli statuti civili della Serenissima Repubblica di Genova libri sei y Genova, appresso Giuseppe Pavoni, 1613, chap. XV De cambiis. 29 When examining the make-up of the courts of fairs, in fact, one finds composite forms, in the sense that publicly-appointed judges were flanked by others who were instead selected exclusively from the ranks of merchants. This gave rise to what we may call 'mixed' forms comprising both judge-merchants and 'public' judges, or judge-merchants controlled by the public powers. For discussion of these aspects see M. Fortunat /, "Note sul diritto di fiera nelle fonti giuridiche di età moderna" in S. Cavaciocchi (ed.), Fiere e mercati nella integrazione delle économie europee. Secc. XIII - XVIII. Atti della Trentaduesima Settimana di Studi, Istituto Internazionale di Storia economica "F. Datini", Prato, 2001, (pp. 945-966), in particular pp. 962 ff.

154

Maura Fortunati

neated was procedure which, in legal theory as well, had more than anything else to be rapid. There were two reasons for this. The first was the already-mentioned analogy with the rules that usually regulated the administration of commercial justice; the second was the provisional and limited nature of fairs, and consequently of their jurisdiction that "tempore est peritura". 3 0 There was consequently all the more reason for lawsuits to be dealt with as expeditiously as possible. There thus arose rules - not codified but applied in practice and recorded as such by legal doctrine - which accelerated procedures by admitting verbal summons in some cases, 31 (and indeed real summons in others, where on simple request by the creditor the judge ordered the debtor be brought before him, since otherwise the temptation to evade justice by nature of brief duration would be too strong); the absence of libellum; the efficacy of extra-judicial confessions; suits that arose ex nudo pacto; trials conducted even at night or during judicial holidays. 3 2 The quibbles of law were to be set aside, as the jurisprudence of ius commune from Baldo onwards maintained, and the rules of fairness - likened in some respects to the aequitas of canon law (the general principle of justice) - were to be observed and applied. 3 3 This at least was the intention. But various sources show that the justice of fairs was in reality no more immune to procedural delays and slowness than were the 'ordinary' mercantile courts: clear examples of this are lawsuits that dragged on for years, or the permission granted by the sovereign to use defence lawyers. 3 4 30

Giovanni Maria Novario , Quotidianae practicaeque forenses quaestiones . . . , Neapoli, ex Typographia haeredum Tarquinij Longhi 1623 -1631, pars II, quaestio XXXI, no. 4, p. 59. 31 "Acta debebant currere per horas, in causis enim quae ventilantur in nundinis proceditur sollemnitatibus omissis et summarie absque omni alio processu iudiciali". Ibid. 32 See the brief but lucid description provided by the Neapolitan Ricci in his Praxis "In nundinis ... incipit iudicium a citatione reali et ad simplicem instantiam creditoris iudex mandat ut debitor capiatur, non ut in carcerem ponat, sed coram magistro nundinarum asportetur ea ratione assignata quia si citatio verbalis fieri deberet in curia nundinarum statim recederent scientes ulterius ibi non posse conveniri et iurisdictionem esse brevi tempore duraturam et restrictam ad illus tempus et ad illud territorium nundinarum et sic actor et curia deluderetur et venientes ad nundinas omnes sunt suspecti de fuga et presumuntur in fuga saltim per illud breve tempus et per illud territorium ( . . . ) In nundinis neque datur libellus sed talis qualis petitio, vel notatur in libro ut solum appareat quod quale quantumve petatur et proceditur de piano et aequo, ex non scripto". Leonardo Ricci , Praxis formularia judicii executivi, omniumque actorum, quae sine reo fiunt, & ad judiciorum praeparationem deserviunt, Neapoli, sumptibus Nicolai, & Vincentii Rispoli 1717-23, pars I, cap. X I De officio magistri nundinarum, nos. 9 ff., p. 42. 33 "Et sicuti in Curia ecclesiastica (ubi proceditur de aequitate canonica) ex pacto nudo oritur actio ita in Curia mercatorum, quae in hoc aequiparatur Curiae ecclesiasticae ( . . . ) et eadem ratione sicuti de aequitate canonica in Curia ecclesiastica confessio extraiudicialis, quae fit parte absente facit plenam probationem, ( . . . ) ita etiam in Curia nundinarum, secus in Curiis ordinariis ( . . . ) quia inter mercatores attenditur simpliciter Veritas negotii". Ibid., nos. 14-15, p. 41. 34 Consider, for example, the lawsuit brought in the fourteenth century by the custodes nundinarum of Champagne against the Sienese family of the Tolomei, who had fled the fair

The fairs between lex mercatoria and ius mercatorum

155

The frequent appeal to aequitas may also explain why the fairs held in some localities made use of an arbitration procedure which expressed the parties' awareness that they belonged to the same professional community,35 and why judgements on that basis were sometimes expressly foreseen by specific provisions: this is the case, for example, of the legislation which regulated the administration of justice at the fairs of Lyons. 36 In that French city, jurisdiction was exerted with summary procedure over all the lawsuits arising from fairs by the Conservateur, who was answerable to the sovereign. In 1464 Louis X I granted the city councillors the power and authority to elect "aucun preud'homme suffisant et idoine, toutesfois que mestier sera, que aucun sergent ne autre officier ne face aucune extortion ou vexation auxdits marchands et que de toutes les questions et debatz qui surviendront entre iceulx marchands durant lesdites foyres et a cause d'icelles, ledit commis les appoinctera et accordera amiablement se faire le peut, ou si non qu'il leur face eslire deux marchands non suspects ne favorables pour les apponcter, ils les renvoyeront devant le juge auquel la connoissance en devra appartenir et seront tenuz de le certiffier de ce qu'ilz en auront faits". 37 This was therefore a jurisdiction that interposed itself between the royal judges and the merchants and defended the latter from the extorsions and vexations of the former; an arbitration-based jurisdiction which sought to resolve disputes peacefully before recourse was made to the Conservateur in the event that a compromise had not been reached. without honouring their debts, which dragged on for more than twenty years. The case is reported by G. Bigwood , "Les Tolomei en France au XlVe siècle" in Revue belge de Philologie et d'histoire, no. 4, 1929, (pp. 1109-30), pp. 1115 ff. As to the right to defence in the courts of fairs, in 1349 an ordinance by Philippe de Valois permitted recourse to a lawyer, although it is difficult to believe that the wardens authorized it with any frequency." Nous voulons que tous deffendeurs soyent receuz à plaider leurs causes par procuration, sans grace en la cour des foires, si les cas ne désirent détention de corps, nonobstant coustumes à ce contraires" Edicts et ordonnances contenants les privileges octroyez ... aux foires de Lyon ... Lyon, Antoine Gryphius 1574, art. 24, pp. 15 ff. On how in some localities also mercantile justice was "made increasingly uniform (schedules, documentation, appeals, procedure) with ordinary justice" see M. Ascheri in Tribunali, giuristi e istituzioni dal Medioevo all'età moderna, Bologna, II Mulino, 1989, pp. 34 ff. 35 The origins and development of arbitration procedure have been reconstructed in detail by L. Marione , Arbiter, arbitrator. Forme di giustizia privata nell'età del diritto comune, Napoli, Jovene, 1984. See also V. Piergiovanni , "Profili storici dal diritto romano al diritto medievale e moderno" in L'arbitrato. Profili sostanziali, Turin, UTET, 1999, pp. 1 - 1 5 ; on Venice in particular see Ε Marrella/A. Mozzato , Alle origini dell'arbitrato commerciale internazionale: l'arbitrato a Venezia tra Medioevo ed età moderna, Padua, Cedam, 2001; and on France Y. Jeanclos , L'arbitrage en Bourgogne et en Champagne du Xlle au Xve siècle. Etude de l'influence di droit savant, de la coutume et de la pratique, Dijon, Publication du Centre de recherches historiques, 1977. 36

On the fairs of Lyons see M. Bresard , Les foires de Lyon au XVe et XVIe siècles, op. cit. The privilege is contained, among various collections, in Les loix, ordonnances et privileges des foyres de Lyon, Brie et Champagne, Roven, Martin le Mesgissier, 1612. 37

156

Maura Fortunati

Even in a situation like that of England, which was undoubtedly unusual but not for that reason any less significant, the registers of the fairs court demonstrate that numerous lawsuits were referred, by joint consent of the parties, to an arbitrator appointed for the purpose. 38 By contrast, the English fairs also comprised, with regard to criminal cases, an institution typical of common law justice, namely a jury, whose intervention was often urged by the parties. 39 Despite the presence of rules which in part disciplined their activities, fairs seem to have been largely regulated by usages, and there was one long-standing mercantile practice which was indubitably the basis for another phenomenon. I refer to the custom of recognizing as entirely valid for probatory purposes the ledgers in which merchants noted down their transactions at fairs. Unlike others, in this case the mercantile custom was rapidly assimilated into the ius commune without any great difficulty. The merchants' books became all the more important as probatory instruments when the fairs underwent the profound transformation whereby many of them came to function not only as goods markets but also, and especially, as exchange markets. Transactions in this case could only be performed by means of entries made in bankers' books, so that it was absolutely necessary that these be accorded full reliability. Thus, among the written documents to which the mercantile practices, usages and rules of the modern age (carefully recorded by legal doctrine and incorporated into the ius commune) granted full credit were the registers typical of the exchange fairs, the so-called scartafacci or stracciafogli. 40 These were private books kept by merchant-bankers (although it would perhaps be more accurate to refer to them as bankers tout court) which, according to common opinion, were not valid until the conclusion of the fair - that is to say, as long as the entries made in them might change. Thereafter, however, provided they met all the formal requirements (name, surname and mark of the proprietor, inscription of the year and the fair, correct pagination and binding), they acquired full validity as evidence.41 38 The abundant documentation on the English courts of fairs collected and published by C. Gross frequently refers to the use of arbitration. By way of example, on 6 May 1287 the parties fixed a day on which to seek an agreement and at the same time decided to submit the entire case to the arbitration of a certain Bartholomew of Acre (Partes petunt diem ad concordandum usque in crastinum et ponunt se in omnibus in arbitrio Bartholomei de Acre). The arbitration took place on 9 May 1287. Cf. C. Gross , Selected Cases, Concerning the Law Merchant. A.D. 1270-638, London, Seiden Society, 1908, vol. I {Local Courts), Fairs Court of St. Ives, p. 18; 21 39 Ibid., acts dated 6 May 1287 (p. 17); 19 May 1287 (p. 29); 19 April 1288 (p. 33). 40

On the doctrinal process that led to recognition of the full probatory efficacy of certain mercantile written documents see M. Fortunat ι, Scrittura e prova. I libri di commercio nel diritto medievale e moderno (Biblioteca della Rivista di Storia del diritto italiano), Rome, Fondazione Sergio Mochi-Onory, 1996. 41 The requisites for these written documents were established by the laws of fairs, as in the provisions set out in the amendment made on 22 October 1609 by the Genoese Senate to chapter 4 of the Capitoli ed ordini delle fiere di Bisenzone, where the Genoese magistrate

The fairs between lex mercatoria and ius mercatorum

157

The custom was soon legitimated by jurists, both in doctrinal works and in judicial practice in Italy, where, during the apogee of the 4Genoese' exchange fairs, the appeal courts were increasingly required to settle disputes on exchange transactions. It was only natural, therefore, that jurists should be more frequently called upon to pronounce on such matters, even though their opinions sometimes differed. On the one hand, observation of the practice led to limitation of the probatory force of the registers of fairs. However, this was not an expression of 'distrust' towards the merchant-bankers; more simply it was a reflection of what commonly happened in reality. Thus opined, for example, the Genoese Rota, and so too did the jurist Sigismondo Scaccia, a Roman by birth but who worked in Genoa for many years as a Rota auditor, and who entirely assimilated the commercial practice of the Ligurian emporium and the stylus of the court. 42 The Rota pronounced on the matter during a debate on the probatory validity of the written documents compiled by bankers at fairs. At issue was whether, if a debtor became bankrupt, there existed the right of recourse against the original drawer on a bill of exchange. The Rota was required to adjudicate a case concerning a letter of exchange to be discounted at a fair in Spain. The letter had been issued, via intermediaries, to two Genoese merchants unable to fulfil their obligations and who had accordingly declared themselves bankrupt. The creditors had consequently applied to the intermediaries to obtain payment of the sum and the interest on it. The intermediaries, however, rejected the claim, arguing that they had been released from all obligation when they had transferred the credit to the bankrupt bankers. On this occasion, the Rota declared that the written entries made in bankers' scartafacci in the course of a fair were not probative until the fair in legally sanctioned a long-standing practice by ordering that bankers operating at fairs must "haver notato Ii suoi negotii in un libro, ό sia Scartafaccio legato in forma di libro, coperto di cartina, ο di coio, cartezato, col millesimo et inscrittione Scartafaccio di tal fiera del tale, e mostrarlo al magistrate". If they failed to comply they would forfeit the payments due to them: "Quando si ritrovasse alcuno che non havesse il Scartafaccio della qualité sudetta, non potrà ne Ii sarà lecito in tal caso scodere quello che Ii fosse dovuto, ne levare Ii protesti alle lettere di cambio". Capitoli et ordini delle fiere di Bisenzone, chap. 4 in Gio Domenico Peri, Il Negotiante, op. cit., pp. 232-3. 42 On Scaccia and his work see R. Savelli, "Between Law and Morals: Interest in the Dispute on Exchanges during the 16 Century", in V. Piergiovanni (ed.) The Courts and the Development of Commercial Law, Berlin, Duncker & Humblot 1987, pp. 39 ff.; Id ., "Modelli giuridici e cultura mercantile tra X V I e XVII secolo" in Materiali per una storia della cultura giuridica, XVIII (1988), pp. 3 - 2 4 ; R. De Laurentiis, Sigismondo Scaccia (1564? - 1634) fra pratica e teoria giuridica agli inizi dell'età moderna, (Biblioteca della Rivista di Storia del diritto Italiano), Rome, Fondazione Sergio Mochi Onory, 1993. On the Genoese Rota and its importance in the systematization of commercial law the essential references are V. Piergiovanni, "The Rise of the Genoese Civil Rota in the XVIth Century: The 'Decisiones de mercatura' Concerning Insurance", in The Courts and the Development of Commercial Law, Berlin, Duncker & Humblot 1987; Id. , "Banchieri e falliti nelle 'Decisiones de mercatura' della Rota Civile di Genova", in "Centro tedesco di studi veneziani". Quaderni 31,1985, pp. 17 - 38; Id. "Una raccolta di sentenze della Rota civile di Genova nel X V I secolo" in M. Sbriccoli/A. Bettoni (eds) Grandi tribunal! e Rote nell'Italia di antico regime, Milan, Giuffrè 1993, pp. 79-91.

158

Maura Fortunati

question had concluded, on the ground that "annotationes factae in libris pro literis cambii sibi ipsis solvendis possint variari, protestari et contrascribi". 43 Scaccia dealt with the same issue in his excursus on the fairs of Piacenza and reached the same conclusion as the Genoese Rota. Starting from the usual practice with which he was acquainted, he pointed out that the bankers' scartafacci in fact contained the "memorialia" of the transactions performed at a fair. They therefore did not constitute any form of obligation or promise because the content might change during the course of the fair. 44 It was the type of fair at which the scartafacci was used that determined its efficacy: "quare in istis nundinis fiunt pecuniarum solutiones et traditiones, ita ut alii débita solvant, alii vero débita contrahant; redduntur itidem dati et accepti rationes et denuo pecuniae ceduntur et accipiuntur et totum huiusmodi negotium sine ullis fere pecuniis conficitur, datis et acceptis solum chirographis." 45

Although the Rota and the doctrinal opinion expressed by Scaccia did not expressly pronounce in favour of the full efficacy of bankers' books, the hermeneutic tendency subsequent to them was to admit such efficacy once a fair had concluded. By virtue of an inductive process whereby the exegetic devices of the ius commune were forcefully flanked by the 'normative' force of mercantile practice, the pronouncement of the Genoese court gave rise to partly new interpretations and solutions. The decisio cited, in fact, established a jurisprudential trend favourable to the efficacy of the books kept at fairs. The direction thus set was then followed by courts operating in other localities, as shown by the operative parts of two different judgements on lawsuits, one discussed before the Roman Rota, the other before the Rota of Florence. In both cases, it is clear that the usages and rules which regulated fairs still constituted the 'real' presupposition from which every legal elaboration and conclusion derived. The two cases take us to the second half of the seventeenth century and the first half of the eighteenth. By that time, the fairs of Bisenzone had repeatedly changed location and were now held at No vi. Although their importance was in decline, this did not prevent animated discussion of exchanges and the commercial aspects of fairs. The rules observed in that sphere were still manifest in all their incisiveness: the usages and practices habitually observed - and which were thus established, cogent and mandatory - were the sole grounds cited by the Rota judges in justification of their decisions, with no resort to more strictly juridical gists and texts. Thus, the bilanciamento generale 43

Marco Antonio Belloni, Decisiones Rotae Genuae de mercatura et ad earn pertinentibus, Venetiis, apud haeredem Damiani Zenarii 1606 decisio I, no. 10, f. 3r. 44 "Hie liber, quem vocant scartafaccium, quove ostenditur bilancium, continet memorialia negotiorum agendorum in illis nundinis ... et ideo scriptura illius non inducit aliquam obligationem, neque novationem, nec promissionem cum ea, quae in eo sunt notata, possint variari et contrascribi". Sigismondo Scaccia , Tractatus de commerciis et cambio, Romae, sumptibus Andreae Brugiotti 1619, § 2, glos. 4, n, 12, p. 496. 4 5 Ibidem, n. 13.

The fairs between lex mercatoria and ius mercatorum

159

(general balance) drawn up on conclusion of exchange fairs, and enshrined in the law of fairs and universally accepted by bankers, sufficed for the Roman Rota to establish the veracity of the registers on which the bilanciamento was based. The case discussed on 27 November 1651 at the Roman court concerned the enforceability of an executive order issued by the Camera Apostolica in favour of Francesco Maria Balbi for recovery of a sum paid by Balbi at the No vi fair on behalf of the Siri brothers. The decisio of the Rota touched on various matters concerning exchanges, among them problems concerning the written documents of fairs. In fact, Balbi's payment had been entered in the Scartafaccio of the banker, which, according to the court, was entirely valid once the fair had concluded. Of particular interest are the grounds cited by the Rota auditors for this validity: the entries in the general Scartafaccio were relative to scartafacci and balances of other bankers; if the entries did not correspond exactly to the latter, it would be impossible to draw up the bilanciamento generale and the fair could not be declared 'complete' 4 6 Almost identical grounds were cited a century later when the Florence Rota was required to decide on a similar matter. The case - a rather complex one which was brought before the Rota on two separate occasions - concerned two "famosi allora Negozianti di Firenze e di Venezia", Ascanio Samminiati and Nicolo Guasconi, who were creditors to Gio Filippo Boscoli. In 1650, the two shopkeepers had received, by public instrument from their debtor, power of attorney for the "full administration" of a house and two estates owned by Boscoli. However, because the rents from these properties were hardly enough to cover the interest on the credit, two years later Boscoli had given his creditors entitlement to "pigliare altrettanta somma a cambio per qualsiasi Piazza e Fiere, anche da se stessi, a tutti suoi danni, spese, ed interessi, sino all'intiera soddisfazione di Sorte, e Cambi", arranging that "Ii frutti de' Beni dovessero di tempo in tempo operar compensazione". Fifty years later, when the heirs of the debtor claimed restitution of the estates, the heirs of the creditors replied that they wanted retain them for their credit, "rimasti essendo dall'anno 1650 compensati, a forma di ragione, li frutti da essi stati percetti, con li Cambi, ovvero con il lucro cessante e danno emergente dovuto alle persone sollte negoziare". In the first instance, the auditors of the Florence Rota, one of whom was the Genoese jurist Giuseppe Lorenzo Maria Casaregi, pronounced in favour of the Samminati, ordering "canonizzare la pretensione degli Cambi dell'anno 1652 46

"Solutio enim facta à Balbo ... probatur ex libro nuncupato Scartafascio di fiera, qui licet fidem non faciat durantibus nundinis eo quod adhuc partitae ibi descriptae possunt variari et contrascribi ... plena fide completis nundinis dignus asseritur ... ea ratione quia amplius dictae partitae variari non possunt et quia tam respectu debiti, quam crediti relative sunt ad alia Scartafacia et bilancia aliorum Bancheriorum, quibus nisi adamusim corresponderent fieri non potuisset generale bilancium, sine quo nundinae non dicuntur completae ut propterea idem fit dicere nundinas esse complétas ac scartafacia et bilancia singulorum bancheriorum rite processisse". Decisiones Sacrae Rotae Romanae coram ... Coelio Bichio, tome II, Romae, ex Typographia Reverendae Camerae Apostolicae 1671, dec. 481 Romana seu ianuense cambii, nos. 1 - 3 , p.

160

Maura Fortunat

fino air anno 1671", with arguments that gave marked preponderance to the law of fairs and the Florentine stylus mercatorum. Again emphasized was that the final bilanciamento of a fair could only be compiled if the entries in individual scartafacci matched each other, with the necessary consequence that such entries were entirely valid. To no avail was the objection that under discussion were so-called exchanges colla ricorsa, which were not necessarily included in the general balance, and which should therefore be proved by presenting the relative letters. The Rota observed that in reality "validissima, imo per se solam concludens probatio exurgit a stylo mercatorum Florentiae", who did not usually write letters but noted exchanges in the scartafacci before they sent them to the procurator of the fair. Testifying to the vitality of mercantile practice and the force accorded to it by ordinary justice, where "usus invaluit ad effectum se aptandi ingenuae mercatorum praxi et bonae commercii fidei", full efficacy was granted to the scartafacci in proving "realitatem cambiorum et recambiorum". 47 The request submitted by the debtor's heirs to the Giudici delle Seconde Appellazioni (the court of appeal) for review of the sentence was rejected "with respect to the exchanges". But without the approval of one of the three auditors, who instead argued that the validity of the scartafaccio depended on the fact that "it was a public book, and approved by the law of fairs observed in the entire world ( . . . ) , and moreover on conclusion of the fair the entries cannot be changed". There emerges from the sentences cited above a commercial world of distinctive physiognomy where 'merchants' increasingly endowed with technical expertise operated in equally specialized contexts. The image that transpires is that of a society whose protagonists were no longer the merchants of the thirteenth-century Champagne fairs, who exchanged money but above all goods; they were now commercial operators who often, and sometimes exclusively, did business in the credit sector, and whose main source of income consisted of investments in money. That this was a reality very different from the Middle Ages was highlighted by Raffaele Della Torre, who unhesitatingly referred to the scartafacci as the books of bankers , thereby showing on this occasion, as for that matter in large part of his work, clear awareness of the difference between merchants and bankers - and thus awareness of "a change which signified the end of an epoch" 4 8 After this general definition, Della Torre goes into further detail. The scartafacci, he writes, were the registers which recorded all the drafts and transfers received 47 Giuseppe Lorenzo Maria Casare gi Discursus legales de commercio, in Id., Opera omnia, Venetiis, Ex Typ. Balleoniana 1740, disc. 149, passim. 48 In this regard see the discussion of Della Torre by V. Piergiovanni , "Banchieri e mercanti: modelli di classificazione nella dottrina giuridica genovese" in V. Piergiovanni (ed.) The Growth of the Bank as Institution and the Development of Money - Business Law, Berlin, Duncker & Humlot, 1983, pp. 77-89. A useful portrait of the jurist and his œuvre is provided in R. Savelli , entry Della Torre Raffaele in DBI.

The fairs between lex mercatoria and ius mercatorum

161

by the banker, as well as all the transactions performed in his own name or by proxy in the course of a fair. But Delia Torre hastens to specify, in contrast with the legal doctrine of his time, that the entries could not be changed or amended until the end of the fair. This was possible before acceptances, but thereafter "criminale est aliquid immutare". In reality, only the transactions performed in the course of the fair could be altered until presentation of the balances, at which point nothing could be changed without committing a falsehood. 49 This opinion demonstrates Della Torre's quality as an attentive observer of fairs, and especially his concern for the problems connected with them, and the need of those who operated in them for sufficiently sure means of proof. Della Torre then cites the practices laid down by the institutive rules of the fairs of Bisenzone, which state in Chapter 4 that "raccettationi debbano farsi con li propri scartafacci, come sin qui è stilato e non con scontri", specifying in a subsequent decree of 1609 that "ognuno, prima di entrare in accettationi, debba haver notato Ii suoi negotii in un libro, ο sia scartafaccio ( . . . ) e quando si ritrovasse alcuno che non havesse il scartafaccio ( . . . ) non potrà ne li sarà lecito in tal caso scodere quello che li fosse dovuto". 50 These, therefore, were rules that passed from the fairs into the case law of the great courts, received adequate theoretical classification by legal science, and for long preserved unaltered the distinctive characteristics of the law merchant. The special nature of ius nundinarum and its above-mentioned similarity to the law typical of the mercantile courts also partly explain the fact that, whereas numerous cartularies drawn up by merchants or bankers still survive, there are few registers of the fairs courts still extant. If we accept that this absence is not solely due to the simple loss of trial documents, we may conclude that it derives to a large extent from the distinctive features of mercantile trials, namely their summariness, rapidity, and prevalent orality. To this can be added the great importance that attached to trust in mercantile practice. Indeed, there are those who have argued that when fairs were first instituted in the Middle Ages, the courts were of little importance because the relationships among the merchants was mainly, if not entirely, based on mutual trust. As Bergier has recently shown, fairs did not consist solely in a complex system of commercial institutions and customs, nor did they comply solely with the law of demand and supply. Rather, they were above all places for meeting and exchange among persons motivated by specific goals. Internally to fairs, as elsewhere, there thus arose among the merchants what has been called a "Société de la confiance", a network of close personal ties founded on reciprocal trust. According to Bergier, this accounts for the absence of competition at the medieval fairs; but it also, in 49

Raffaele Della Torre, De cambiis tractatus, Genuae, excudebat Petrus Iohannis Calenzanus, disputatio II, quaestio I, no. 16, p. 157. 50 Capitoli et ordini delle fiere di Bisenzone in Gio Domenico Peri , Il Negotiante, op. cit., pp. 232-3. 11 Piergiovanni

162

Maura Fortunati

my view, guaranteed reciprocal control and uniformity of behaviour that had to be irreproachable both economically and morally. 51 Connected with the importance and function of trust is the last example cited here, which concerns the reivindicatio, an action of Roman origin that could be brought by the owner to obtain restitution of a good illegitimately possessed by another. A particular privilege introduced to favour trade, and which operated at certain fairs, provided that, contrary to the rules of ius commune, no good purchased in good faith at a fair, although of illicit provenance, could be reclaimed by its rightful owner unless he first recompensed their possessor in good faith with the price that the latter had paid for them. 52 This was one of the various exemptions that the political powers granted to trade fairs throughout their history. But one gains the impression that, although the privilege can also be described in these terms, it largely originated from mercantile practice, being born within a customary law which by its nature protected the purchaser and (indirectly in this case) the seller, at the expense of the original owner. It was perhaps for this reason, too, that it was not immediately accepted by the non-commercial sphere. Of all the cases examined thus far, this one most clearly evidences the features of the diversification process undergone by the ius mercatorum from the late modern age onwards; a process by which the doctrinal treatment of commercial matters was evidently influenced by a different legal tradition (of customary Germanic derivation, or conversely by the Roman heritage). The grafting of mercantile customary law onto this different cultural substrate gave rise to a doctrinal interpretation whereby lex mercatoria comprised provisions that ius mercatorum , or at least part of it, did not contemplate or elaborate. When lex mercatoria became ius mercatorum , it lost its original characteristics. On being incorporated into the mainstream of the ius commune, it was partly deprived of its creative and innovative potential and was adjusted to the logic of Roman law. Not by chance, the privilege was granted, and codified by jurists, mainly in those geographical areas where Germanic traditions still persisted and protected third-party purchasers in good faith. Joan Voet pointed out this fact, 53 and it was reiterated in 1763 - on the eve for the first codes - by Ferdinand Van Collen, who, although he specified that "privilegium in preiudicium 51

J. F. Bergier , "Marchands en foires, entre confiance et concurrence" in S. Cavaciocchi (ed.), Fiere e mercati nella integrazione delle économie europee, op. cit., (pp. 837-846), passim. 52 To be cited with regard to France is the text of 1075 on the fairs of Chapelaude mentioned by Huvelin, which stipulates that "si res vendita fuerit et emptor legitime probaverit se nescire ilium esse latronem de quo emerat, nec illam rem fuisse ablatam in treuga dei, habebit rem suam et reddet emptori tantum quantum dédit". Cf Huvelin , Essai historique sur le droit des marchés et des foires, Paris, Arthur Rousseau 1897, p. 455. 53 Joahn Voet , Commentarius ad pandectas, Coloniae Allobrogum, apud Fratres de Tournes 1778, tome II, tit. X I De nundinis, no. 2: "Inter nundinarum harum maiorum iura atque privilégia ... numeratur illud quod iam alibi adnotatum de rebus alienis aut furtivis bona fide emptis in nundinis publicis per dominum haud vindicandis nisi pretio refuso".

The fairs between lex mercatoria and ius mercatorum

163

veri domini est inductum", acknowledged its utility to the superior interest of trade because people would thus be induced not to refrain from purchasing items for fear that, although in good faith, they were buying goods which belonged to others or had been stolen. 5 4 In Italy, where the influence of Roman law was much stronger, jurists were reluctant to recognize the legal validity of the privilege. In the sixteenth century, indeed the Pavia jurist Iacopo Menochio, pronounced in entirely different manner on the problem. He declared that purchases made at fairs, and the privileges connected with the latter, did not exempt the purchaser from observance of the rules of diligence. The facts cited by some jurists, namely that fairs were attended by foreign and therefore unknown merchants, or that fairs were in any case 'protected', could not be considered excuses. As a consequence, despite the existence of statutes that stipulated the opposite, there existed no right to reimbursement of the price of res fiirtivae which might have been unwitting purchased. 55 Although the position taken up by Menochio and by large part of the jurisprudence subsequent to him rested on traditional principles, it confirms that a practice of this kind must have been customary and habitually adopted at fairs. 5 6 And a century later there were those, with regard to the same problem, who went beyond the "restricted and rigorous terms of the common reason with which some doctors proceed" to point out that, on the contrary, "la ragione pero dell'uso e commercio umano pare che persuada diversamente e che questa ragione, come riguardante il ben pubblico, debba prevalere al bene ο dominio privato, 54 For his doctorate in utroque iure Van Collen presented at the law faculty of the Academy of Leyden his Dissertatio inauguralis de nundinis in which he examined the privileges connected with fairs. His treatment was couched in specifically legal terms flanked by various economic policy considerations and, I would say, sound common sense. Cf. B.N.F., Ferdinand Van Collen, Dissertatio iuridica inauguralis de nundinis, Lugduni Batavorum, apud Samuelem et Johannem Luchtmans 1763, § XV, pp. 21 - 22. 55 "Si quis emit rem furtivam in nundinis ... iste tenetur ea restituere vero domino, nullo recepto pretio ... Non potest se excusare is qui emit in nundinis, si dicit se emisse eo in loco in quo concurrunt cogniti et incogniti ac remotae regionis homines. Non etiam potest se excusare ex eo quod nundinae sint tutae et quod libere in is contrahi possit ... Si quidem nundinae sunt tutae et liberae quo ad accessum et recessum et ne quis aliqua in is molestia afficiatur, non tarnen in eo sunt privilegiatae ut mercator non debeat caute negotiari" Iacopo Menochio , De praesumptionibus, coniecturis, signis et indiciis commentaria, Venetiis, apud Haeredem Damiano Zenarii 1617, tome II, praesumpt. XXIX, nos. 22-25, pp. 649-50. 56 Menochio's pronouncement was replicated by large part of the jurists in the Kingdom of Naples, although they acknowledged the existence of practices to the contrary. See e.g. Florido Mausonio , Tractatus de causis executivis, Venetiis, apud Paulum Baleonium 1654, ampliatio I, no. 20, p. 53 and Giuseppe Amendolia , Praxis iudiciaria civilis, (Neapoli, typis et expensis Dominici Antonii et Nicolai Parrino 1723, titolo IX, De magistro nundinarum, no.6), who rejected the possibility that the price unwittingly paid for stolen goods might be reimbursed but nevertheless pointed out that such facts "saepe eveniunt et aliter audivi responderi, tamquam quod venditio in nundinis tribuat ius transferendo dominium in emptorem, quod non habet venditor, quod rationi consentaneum non est". 11*

164

Maura Fortunati

al quale solamente riguarda la detta disposizione della ragion comune, ovvero il senso de' dottori 5 7 .

Once again, the logic of the lex mercatoria rigidity of learned law.

was destined to prevail over the

57 Trad. The reason of human usage and commerce seems to persuade differently, and this reason, as regards the public good, should prevail over the private good or domain to which the provisions of the common reason, or the sense of the doctors, makes sole regard. Giambattista De Luca, Il dottor volgare, Firenze, Battelli e compagni 1839, capitolo X Delle fiere e dei mercati e deipesi e delle misure , nn. 4 - 5 , p. 269.

KNUT WOLFGANG NÖRR UND KERSTIN SCHLECHT

Zur Entwicklung der Schiedsgerichtsbarkeit in Deutschland: Gesetze und Entwürfe des 19. Jahrhunderts I. Lex Mercatoria und Schiedsgerichtsbarkeit: zur Einführung in das Thema 1. Befasst man sich mit lex mercatoria, so sollte man im Auge behalten, dass der Begriff, wie viele andere rechtliche Begriffe auch, mehrere Aspekte in Hinblick auf die gesetzliche Ordnung zur Sprache bringt. Erstens kann lex mercatoria von einer nationalen oder von einer internationalen Betrachtungsweise aus verstanden werden. Im nationalen Bereich meint lex mercatoria ein bestimmtes Regelwerk innerhalb der nationalen Gesetzesordnung, durch sie begründet oder zumindest anerkannt. International gesehen bezieht sich lex mercatoria auf ein Regelwerk, worüber die Teilnehmer am internationalen Handelsverkehr auf die eine oder andere Weise Einigung erzielt haben. Zweitens verweist lex mercatoria auf Rechtspflege oder Rechtsprechung, insbesondere auf speziell mit dem Handel befasste Gerichte. Das gilt unabhängig davon, ob es sich um nationale oder internationale, um ordentliche oder Schiedsgerichte handelt. Drittens berücksichtigt lex mercatoria die übliche Unterscheidung zwischen materiellem Recht und Prozessrecht. Hier bezieht es sich dann entweder auf besonderes materielles Recht oder auf besondere prozessuale Regeln. 2. In der Geschichte der lex mercatoria, deren Anfänge wir weit ins Mittelalter zurückverfolgen können, kam es zu eimem wichtigen Wendepunkt, als sich der moderne Staat als Faktum und als Konzept vollendet hatte. Es ist hinreichend bekannt, dass dem Konzept der Souveränität - hier in der Bedeutung der höchsten Gewalt in inneren Angelegenheiten - die Zentralisierung von hauptsächlich drei Kontrollinstrumenten entsprach, nämlich der Armee, dem Finanz- und Steuerwesen, und der Rechtsprechung. Der neuzeitliche Staat schloss prinzipiell jede Rechtsprechung aus, die nicht staatlicher Kontrolle unterworfen war. Um eine Ausnahme hiervon zu begründen, bedurfte es des Privilegs oder des durch das zuständige Organ erlassenen Gesetzes. Die Etablierung irgendwelcher Gerichte oder Schiedsgerichte ohne staatliche Autorisierung war untersagt. Natürlich mag es sich als vergeblich erwiesen haben, Schiedsgerichte außerhalb der territorialen Grenzen zu

166

Knut Wolfgang Nörr und Kerstin Schlecht

verbieten. In diesem Fall wird der Staat entweder mit Strafe gedroht haben, wenn man sich an das Schiedsgericht wandte, oder er wird sich geweigert haben, den Schiedsspruch zu vollstrecken, so dass der Schiedsspruch für die obsiegende Partei nutzlos war, wenn sich der Unterlegene ihm nicht freiwillig fügte. Ist aber eine nationale oder internationale Schiedsgerichtsbarkeit durch die Gesetzgebung anerkannt worden, so erfolgte die Anerkennung nicht ohne gewisse Vorbehalte. Die Gesetzgebung mag zum Beispiel einige Gegenstände der Schiedsgerichtsbarkeit entziehen, oder sie wird den Schiedsspruch der Kontrolle unterwerfen. Die Kontrolle soll entweder sicherstellen, dass ein Minimalstandard fairen Verfahrens eingehalten wird, oder sie dient dazu, in einem gewissen Umfang unrichtige oder unangemessene Entscheidungen nach materiellem Recht zu vermeiden. Zu diesem Zweck wird entweder der Rechtszug an die ordentlichen Gerichte gewährt oder der Schiedsspruch im Vollstreckungsverfahren der Kontrolle unterworfen. 3. Diese Bemerkungen geben natürlich nur eine Art Muster oder Rahmen vor, der gewissermaßen mit Geschichte erst gefüllt werden muss. Thema unseres kurzen historischen Berichts wird im Wesentlichen das 19. Jahrhundert sein, genauer eine Anzahl von Gesetzen und Gesetzesentwürfen, die sich mit unserem Gegenstand befassten. Denn damals waren sich die Gesetzgebungskommissionen in besonderem Maße der Geschichtlichkeit der Probleme bewusst, über die sie in ihren Sitzungen debattierten. Die Gesetzesverfasser jener Zeit waren in gewisser Weise samt und sonders Rechtshistoriker gewesen. Die meisten Quellen, mit denen wir uns beschäftigen, werden deutschen Ursprungs sein, aber sie umfassen ebenso einige französische oder französisch beeinflusste Gesetzestexte. Der Schwerpunkt wird auf der Schiedsgerichtsbarkeit als einem Gegenstand des Prozessrechts liegen.

I I . Die Bedeutung des Schiedsgerichts im zeitlichen Wandel 1. „Die Neigung, gewisse Streitigkeiten, namentlich im Gebiete des Handelsrechts, der Entscheidung durch Schiedsrichter zu unterwerfen, ist im Laufe der Zeit gewachsen und damit auch die Wichtigkeit des schiedsrichterlichen Verfahrens gestiegen", so leiteten die Verfasser des Referentenentwurfs von 1871 (RefEntwRCPO 1871) der dann 1877 verkündeten Reichscivilprozeßordnung (RCPO) die Begründung des Abschnitts über das schiedsrichterliche Verfahren ein. Im Laufe der Zeit: noch zwanzig, dreißig Jahre zuvor war beobachtet worden, dass Schiedsgerichte nur noch selten vereinbart würden. Das Institut des Schiedsgerichts „ist von der preußischen Gesetzgebung aufgenommen, doch nicht weiter entwickelt worden, und fast ganz außer Gebrauch", bemerkte C.F. Koch 18481. Ein Jahr vor1

Der Preußische Civilprozeß, S. 5.

Entwicklung der Schiedsgerichtsbarkeit in Deutschland

167

her hatte der Oberappellationsrat Pfeiffer (Kassel, Kurfürstentum Hessen) vom „selten gewordenen Gebrauch" des Schiedsgerichts gesprochen2 und hierin die Verhältnisse in Bayern bestätigt, wie sie von dem Landrichter in Erlangen Wolfgang Heinrich Puchta 18233 geschildert und früher schon von Gönner 4 festgestellt worden waren. 2. Um die Mitte des Jahrhunderts scheint sich dann allerdings der Wind gedreht zu haben. In den 40er Jahren hatte Württemberg einen gewissen Vorsprung inne in der praktischen Durchführung des Schiedsgerichtsgedankens5. Und für Preußen stellten die 1857 veröffentlichten Motive zum „Entwurf eines Handelsgesetzbuchs für die Preussischen Staaten" (EntwPreußHGB 1857) fest, dass vom Institut der Schiedsrichter „gerade in Handelssachen häufig Gebrauch gemacht wird" (S. 587). Drei Jahre später wird für das Königreich Hannover von einem Praktiker bestätigt, ihm seien „ziemlich viele Fälle von Schiedsverträgen und schiedsrichterlichen Verhandlungen bekannt"6. So nimmt auch in den 50er Jahren die Zahl der obergerichtlichen Entscheidungen in Schiedsgerichtssachen nicht unerheblich zu, wie sich aus einer Abhandlung ergibt, die erstmalig die Rechtsprechung zu unserer Thematik in breiterem Umfang einbezogen hat7. Die Gesetzes Verfasser erwähnen anlässlich der Frage, ob Schiedsgerichte auch für erst in Zukunft entstehende Streitigkeiten vereinbart werden können, eine einschlägige Praxis, die seit längerem bestehe und namentlich an den Statuten von Aktiengesellschaften abzulesen sei (Eisenbahnen, Reedereien, Banken). Verbreitet waren Schiedsgerichte im Versicherungswesen und bei den Börsen; aber auch die Buchhändler- und Bühnenvereine bedienten sich ihrer 8. In vielen Konstellationen entwickelten sich auf diese Weise Formen der institutionellen und Verbandsschiedsgerichtsbarkeit. Daneben wurden von den Parteien laufender Geschäftsbeziehungen Schiedsgerichte vereinbart. Natürlich hat man auch Schiedsgerichte ad hoc bestellt.

2

Zeitschrift für Civilrecht und Prozeß, hg.von v. Linde u. a., Neue Folge, 3. Band, S. 50. Das Institut der Schiedsrichter nach seinem heutigen Gebrauche und seiner Brauchbarkeit für Abkürzung und Verminderung der Prozesse betrachtet: „fast unpraktisch geworden", S.5. 4 Nicolaus Thaddäus v. Gönner, Entwurf eines Gesetzbuchs über das gerichtliche Verfahren in bürgerlichen Rechtssachen, 1815, 2. Bd. 1. Abtheilung, Motive: „beinahe veraltet", S. 139. 5 Näheres bei W. Silberschmidt, Deutsche Sondergerichtsbarkeit in Handels- und Gewerbesachen insbesondere seit der französischen Revolution: ein Beitrag zur Frage der Laiengerichte, 1904, S. 164. 3

6

W. André, Obergerichtsanwalt in Osnabrück, Gemeinrechtliche Grundzüge I. der Schiedsgerichte, Π. des Wasserrechts, 1860, S. 59. 7 JA. Gruchot, Beiträge zur Lehre von der Entscheidung der Rechtsstreitigkeiten durch Schiedsrichter, in: Gruchot's Beiträge zur Erläuterung des preußischen/deutschen Rechts 16, 1872, S. 1. 8 Für weitere Beispiele s. Hermann Krause, Die geschichtliche Entwicklung des Schiedsgerichtswesens in Deutschland, 1930, S. 89-95.

168

Knut Wolfgang Nörr und Kerstin Schlecht

3. Als in der ersten Jahrhunderthälfte die geringe Bedeutung des Schiedsgerichts festgestellt worden war und Gründe für diese Erscheinung gesucht wurden, wies man in erster Linie auf die mangelhafte Gesetzeslage hin. Das gemeine oder unkodifizierte Recht war unsicher und sperrig, kontrovers und großenteils veraltet. Unter den Kodifikationen hatte die Allgemeine Gerichtsordnung für die Preußischen Staaten von 1793/95 (PreußAGO), die ihrerseits auf dem Corpus juris Fridericianum von 1781 beruhte, das Schiedsgericht keineswegs vollständig geregelt, so dass man doch wieder auf das gemeine Recht zurückgreifen musste; i n dieser Lückenhaftigkeit wie auch in den dann aufgestellten Regeln 9 vermuteten manche Stimmen eine prinzipielle Distanzierung des aufgeklärt-absoluten Staates von der Schieds- als einer nichtstaatlichen Gerichtsbarkeit. Und das andere große kodifikatorische Exempel, der Code de procédure civile von 1806 (C.pr.civ.) stand bei den Autoren in keinem kaum günstigeren Licht; sein Titel Des arbitrages stelle eine Reaktion auf die Revolution und ihre Vorliebe für Schiedsgerichte dar, eine Vorliebe, die sich auf prinzipielle Weise i m Décret sur Γ organisation judiciaire vom August 1790 geäußert hatte („l'arbitrage étant le moyen le plus raisonnable de terminer les contestations entre les citoyens") 1 0 . Nach wie vor lesenwert ist die Kritik, die B e l l o t 1 1 , der Verfasser der Genfer L o i sur la procédure civile von 1819, in kräftig-genaue Worte gekleidet hatte 1 2 .

9

„Die Unvollständigkeit der Vorschriften der Gerichts-Ordnung und die wenige Wirkung, welche dem schiedsrichterlichen Urtheil darin beigelegt ist, sollen daran Schuld seyn, daß die Partheien von jener Befugniß seltener Gebrauch machen, als sonst vielleicht geschehen würde und zur Verminderung der Prozesse zu wünschen wäre": Bericht der vereinigten ( . . . ) Deputation über die Revision der ( . . . ) Prozeß-Ordnung, 2. Tl., 1827, S. 18 f. (= Gesetzrevision 1825-1848, Π 9, hg.von W. Schubert, 1989, S. 160 f.). 10 Der Text der sechs Artikel des Titre I e r , Des Arbitres, lautet: „1. L'arbitrage étant le moyen le plus raisonnable de terminer les contestations entre les citoyens, les législatures ne pourront faire aucune disposition qui tendrait à diminuer, soit la faveur, soit l'efficacité des compromis. 2. Toutes personnes ayant le libre exercice de leurs droits et de leurs actions, pourront nommer un ou plusieurs arbitres pour prononcer sur leurs intérêts privés dans tous les cas et en toutes matières, sans exception. 3. Les compromis qui ne fixeront aucun délai dans lequel les arbitres devront prononcer, et ceux dont le délai sera expire, seront néannmoins valables et auront leur exécution, jusqu'à ce qu'une des parties ait fait signifier aux arbitres qu'elle ne veut plus tenir à l'arbitrage. 4. Il ne sera point permis d'appeler des sentences arbitrales, à moins que les parties ne se soient expressément réservé, par le compromis, la faculté de l'appel. 5. Les parties qui conviendront de se réserver l'appel, seront tenues de convenir également, par le compromis, d'un tribunal entre tous ceux du royaume auquel l'appel sera déféré, faute de quoi l'appel ne sera pas reçu. 6. Les sentences arbitrales dont il n'y aura pas d'appel seront rendues exécutoires par une simple ordonnance du président du tribunal de district, qui sera tenu de la donner au bas ou en marge de l'expédition qui lui sera présentée" (Collection complète des Lois, Décrets, Ordonnances, Réglemens, Avis du Conseild'État, par J.B. Duvergier, Bd. 1, 2. Aufl. 1834, S. 310). 11

Bellot war zusammen mit dem Hannoveraner Adolph Leonhardt der vielleicht bedeutendste Prozessrechtler des 19. Jahrhunderts, was die Gesetzgebung betrifft. 12 P.-F. Bellot , Loi sur la procédure civile de Canton de Genève suivie de l'Exposé des motifs, 1821, mir vorliegend 3. Aufl. 1870, S. 3 ff., 147 ff.

Entwicklung der Schiedsgerichtsbarkeit in Deutschland

169

I I I . Überblick über die regelungsbedürftigen Themen 1. Wie lauteten nun hauptsächlich die Themen, deren legislative Behandlung im 19. Jahrhundert als vordringlich erschien? Wir wählen das Königreich Preußen als Exempel; zum einen hatte es ungleich anderen europäischen Staaten auf seinem Gebiet sowohl mit dem unkodifiziert-gemeinen als auch dem kodifizierten Recht in seinen beiden Ausprägungen des (alt-)preußischen und des französischen Gesetzbuchs zu rechnen, hatte Preußen also Rechtsvergleichung im eigenen Hause zu betreiben. Zweitens war es Preußen gelungen, fast in allen Materien die legislative Federführung zu übernehmen, als es darum ging, zunächst im Deutschen Bund (1815-1866), dann im Norddeutschen Bund (1867-1871) und Deutschen Reich (seit 1871) Schritt für Schritt und Stufe um Stufe die Rechtseinheit zu erreichen. Von diesen Erscheinungen war auch das Recht des Schiedsgerichtswesen betroffen, dessen systematische Einordnung freilich eine lange Zeit schwankte: in Preußen sollte es zunächst in die Reform des Handelsrechts einbezogen werden; als man im Deutschen Bund zur Vereinheitlichung des Handelsrechts schritt, blieb es vor der Tür, vermutlich weil das Prozessrecht involviert war, das aber nach wie vor partikularrechtlich gebunden blieb; der Dresdener Entwurf eines Allgemeinen Deutschen Gesetzes über Schuldverhältnisse von 1866 (EntwDresd 1866) schloss unter dem Gesichtspunkt des Schiedsvertrags unseren Gegenstand wieder ein (während der zur selben Zeit veröffentlichte „Hannoversche" Entwurf einer Allgemeinen Deutschen Civilprozeßordnung das schiedsrichterliche Verfahren nicht berücksichtigt hat); mit dem Entwurf einer Prozeßordnung in bürgerlichen Rechtsstreitigkeiten für den Norddeutschen Bund von 1870 (NorddEntw 1870) jedoch und ihm folgend der RCPO 1877 wechselte er endgültig ins prozessgesetzliche Lager, wofür vermutlich der Gesichtspunkt der notwendigerweise durch das staatliche Gericht anzuordnenden Zwangsvollstreckung der schiedsrichterlichen Entscheidung den Ausschlag gegeben hat. 2. Der private Schiedsvertrag auf der einen, die Vollstreckung des Schiedsspruchs durch den Staat auf der anderen Seite: das sind die zwei Pole, welche eine erhebliche Spannung erzeugen und die rechtliche Regelung des Schiedsgerichtswesens nicht eine einfache Sache werden lassen. Wieweit soll das privatrechtlich errichtete Schiedsgericht an die staatliche Rechtsordnung gebunden sein, also seine Verfahrens- und materiellrechtlichen Vorschriften anwenden? Wieweit soll die Entscheidung des Schiedsgerichts in seiner Eigenschaft als Privatrechtsakt durch staatliche Gerichte überprüft, also in deren Instanzenzug eingebaut werden, sei es im Rahmen eines Erkenntnis- oder des VollstreckungsVerfahrens? Das sind die Kernfragen, die zu beantworten waren und zum Teil sehr unterschiedlich beantwortet wurden. Um sie lagerten sich natürlich eine Reihe weiterer Fragen von größerem oder kleinerem Gewicht. 3. Jede Rechtsordnung muss bestimmen, auf welche Gegenstände sich Schiedsgerichtsbarkeit überhaupt beziehen kann, welche Gegenstände hiervon ausgeschlossen sind. Schon im gemeinen Recht war die Parallele zu transactio, zum pri-

170

Knut Wolfgang Nörr und Kerstin Schlecht

vatrechtlichen Vergleich gezogen worden, und so lag der Satz nahe, dass Gegenstand eines Schiedsvertrags jeder Gegenstand eines Vergleichs, aber auch nur ein solcher sein kann 13 . Soweit die ausgeschlossenen Materien aufgelistet werden 14 , kann man insgesamt zwei Gesichtspunkte feststellen, nämlich den (alten) Satz, dass über öffentliches Recht private Parteien nicht disponieren können, ferner die Vorstellung, dass auch im Bereich des Privatrechts der Raum des Vertrages von den Räumen des Institutionellen zu trennen ist und in diesen Räumen, beispielsweise der Ehe als Institution, der Vertrag keinen Platz beanspruchen kann. 4. Was den Schiedsvertrag anbelangt, bereitete es mancherorts Schwierigkeiten, sich von den veralteten Vorstellungen des römischen Rechts zu lösen. So wurde noch bei der Ausarbeitung des NorddEntw 1870 angeregt, dem Schiedsvertrag nicht die Wirkung einer Einrede vor dem ordentlichen Gericht zu verleihen, sondern nur mittels Vertragsstrafeversprechen und Schadensersatzanspruch einen mittelbaren Erfüllungszwang auszuüben15. Im Kontext des 19. Jahrhunderts mag man hierin nicht bloßen Historismus, sondern auch ein überspitztes Souveränitätsdenkens im Sinne der (inneren) Sicherung der Staatsgewalt am Werke sehen. Freilich blieb unsere Stimme dann allein. In den Bereich eines äußeren Souveränitätsdenkens hatte vielleicht das Verbot gehört, Ausländer zu Schiedsrichtern zu wählen 16 . Das Verbot war schon von der preußischen Rechtsprechung einschränkend ausgelegt worden 17 und wurde seit dem EntwPreußHGB 1857 ernsthaft nicht mehr in Erwägung gezogen18; es hätten ja vor der Reichsgründung 1871 alle deutschen 13 Vgl. § 1361 des Entwurfs einer Prozeß-Ordnung in bürgerlichen Rechtsstreitigkeiten für den Preußischen Staat von 1864 (PreußEntw 1864); § 1155 des Entwurfs einer Prozeßordnung in bürgerlichen Rechtsstreitigkeiten für den Norddeutschen Bund (NorddEntw 1870); § 762 des Regerentenentwurfs von 1871 (RefEntwRCPO 1871); § 779 des Entwurfs der Bundesratskommission von 1872 (KommEntwRCPO 1872). 14 Vgl. § 168 (Teil I Titel 2) der Allgemeinen Gerichtsordnung für die Preußischen Staaten von 1793/95 (PreußAGO); Art. 1004 des Code de procédure civile von 1806 (C.pr.civ.); Art. 337 des Genfer Prozessgesetzes; §§ 190 f. der Badischen Prozeßordnung von 1831 (BadProzO 1831); Art. 1320 der Bayerischen Prozeßordnung von 1869 (BayProzO 1869). Protokolle zu § 1361 [PreußEntw 1864]: „Ein Mitglied regte vorweg die Frage an, welche Wirkung einem rechtsgültig abgeschlossenen Schiedsverträge beizulegen sei, und führte aus, daß diese nicht dahin gehen könne, die Hülfe der Staatsgerichte schlechterdings auszuschließen. Nur indirekt durch Pönalstipulation oder Interesseforderung dürfe die Erfüllung erzwungen werden; die Einrede der Inkompetenz wider die ungeachtet des Kompromisses bei dem ordentlichen Gerichte erhobene Klage sei nicht zu gewähren." (Protokolle der Kommission zur Ausarbeitung des Entwurfs einer Civilprozeßordnung für die Staaten des Norddeutschen Bundes, Hrg. Schubert, Frankfurt/Main 1985, S. 2225). 16 Vgl. § 169 PreußAGO (Anh. § 41). 17 Nachweise bei Gruchot a. a. Ο. (Fn. 7) S. 27.

Art. 1049 S. 2 des Entwurfs eines Handelsgesetzbuchs für die Preussischen Staaten (EntwPreußHGB 1857): „Die Wahl von Ausländern ist zulässig." In den Motiven zu diesem Entwurf wurde dies näher begründet (S. 590): „Von dem oben erwähnten Verbot, Ausländer zu Schiedsrichtern zu wählen, hat der Entwurf Abstand genommen. Schenken beide Theile einem Ausländer ihr Zutrauen, so liegt kein zwingender Grund vor, ihre Wahl in dieser Beziehung zu beschränken; für den Fall aber, daß die Schiedsrichter

Entwicklung der Schiedsgerichtsbarkeit in Deutschland

171

Staaten als Ausland gegolten. In diesem Punkt können wir möglicherweise eine informelle Wirkung des Verfassungsentwurfs von 1849 der Frankfurter Nationalversammlung beobachten, der die Gleichbehandlung aller Deutschen vor dem Recht statuieren wollte 19 . Als weitere regelungsbedürftige Punkte sind die Frage der Zwangsschiedsgerichte und die Abgrenzung des Schiedsrichters zum Schiedsmann (arbitrator) zu erwähnen. Auf diese Punkte wird im Rahmen dieser Abhandlung jedoch nicht näher eingegangen.

IV. Bindung des Schiedsrichters an die staatlichen Gesetze Für das erste Hauptthema, wie wir es nannten, die Bindung nämlich des Schiedsrichters an die staatlichen Gesetze sei es für das Verfahren oder für das materielle Recht, kann man modellartig folgende Möglichkeiten aufzählen: - Bindung schlechthin an das staatliche Recht - Bindung qualifiziert daran, etwa an die „wesentlichen Vorschriften" der Gesetze 2 0 - Bindung an das staatliche Recht, aber die Schiedsparteien können den Schiedsrichter hiervon befreien, also negativ disponieren 21 - Keine Bindung an das staatliche Recht, aber die Schiedsparteien können den Schiedsrichter hieran binden, also positiv disponieren - Keine Bindung an das staatliche Recht, und zwar ohne positive Dispositionsbefugnis der Parteien - Für das Verfahrensrecht kommt noch die Möglichkeit hinzu, dass spezielle Vorschriften für das schiedsgerichtliche Verfahren aufgestellt werden, die ihrerseits wiederum zwingend oder disponibel sind. Prototyp der Bindung an das staatliche Recht mit negativer Dispositionsbefugnis der Parteien war der französische C.pr.civ. 22. Hinsichtlich des materiellen Rechts durch einseitige Wahl ernannt werden sollen, kann man es füglich den Parteien überlassen, die Wahl von Ausländern durch vertragsmäßige Festsetzung auszuschließen." 19 § 134 des Verfassungsentwurfs lautete: „Kein deutscher Staat darf zwischen seinen Angehörigen und anderen Deutschen einen Unterschied im bürgerlichen, peinlichen und Prozeß-Rechte machen, welcher die letzteren als Ausländer zurücksetzt." 20 § 171 PreußAGO. 21 Vgl. dazu die Ausführungen von Professor Glück, dem letzten Kommentator, der das Gemeine Recht erschöpfend behandelt hatte: er legte dar, dass der Schiedsrichter dieselben gesetzlichen Regeln zu befolgen habe wie der gewöhnliche Richter, es sein denn, im Kompromiss sei etwas anderes bestimmt (Pandecten D. 4.8, § 481, S. 90). 22 Art. 1009 und 1019.

172

Knut Wolfgang Nörr und Kerstin Schlecht

verkörperte sich die Dispositionsbefugnis in der Betrauung von „amiables compositeurs' ' (Art. 1019), den amicabiles compositores des gemeinen Rechts. Prototyp der „umgekehrten" Konzeption, also der Befreiung vom staatlichen Recht mit positiver Dispositionsbefugnis der Parteien und, wenn sie hiervon keinen Gebrauch machen, speziellen Verfahrensregeln war das Genfer Prozessgesetz23. Dem französischen Modell folgen für das materielle Recht die Badische Prozeßordnung (BadProzO) von 1831 (§ 202), der Entwurf eines Handelsgesetzbuchs für das Königreich Württemberg (EntwWürttHGB) von 1839 (§ 844), der Württembergische Entwurf einer bürgerlichen Prozeßordnung (EntwWürttProzO) von 1848 (Art. 193), die Bayerische Prozeßordnung (BayProzO) von 1869 (Art. 1332); für das Verfahrensrecht von diesen Quellen nur die Bayerische Prozeßordnung (im selben Art. 1332). Baden und Württemberg folgen im Verfahrensrecht dem Genfer Modell (Baden a. a. O. § 200, Art. 841 des EntwWürttHGB 1839, Art. 190 mit Art. 946 ff. des EntwWürttProzO 1848). In Preußen hält sich der EntwPreußHGB 1857 für das materielle Recht an das französische 24, für das Verfahren an das Genfer Muster 25 . Der Entwurf einer Prozeß-Ordnung in bürgerlichen Rechtsstreitigkeiten für den Preußischen Staat von 1864 (PreußEntw 1864) bindet die Schiedsrichter an das gesetzte materielle Recht schlechthin (§ 1372): ein merkwürdiger Atavismus, wie man vermuten könnte, doch steckt dahinter eine begriffliche Attacke, weil ein Vertrag, der die Schiedsrichter von der Einhaltung der Gesetze entbinde, keinen Schiedsvertrag mehr darstellen würde 26 . Moderner erweist sich der Entwurf in der Regelung des Verfahrens: die Schiedsrichter selbst sollen es bestimmen, sofern die Parteien hierüber keine Vereinbarung getroffen hatten (§ 1370). Das entsprach im Ergebnis, wenn auch nicht in der Reihenfolge, dem Genfer Prozeßgesetz, Art. 348: „Les mesures d'instruction se feront dans la forme et le délai fixés par l'acte de nomination, et, à défaut, par les arbitres". In der Beratung des NorddEntw 1870 stoßen die Ansichten zur Gebundenheit an das materielle Gesetzesrecht ein letztes Mal aufeinander; die Mehrheit beschließt, das Thema der Bindung überhaupt nicht mehr im Gesetz anzusprechen27 (so dass auch die negative beziehungsweise positive Dispositionsbefugnis einen Regelungsgegenstand nicht mehr abgeben konnte). Für das Verfahren folgt man dem PreußEntw 1864 28 , überlässt also dessen Rege23 Art. 348; s. ferner Exposé de motifs du titre XXIV (a. a. Ο. 3. Aufl. S. 147 ff.). 24 Motive zu Art. 1059: „Das Schiedsgericht ist keine bloße Vergleichsanstalt, sondern die Schiedsrichter sollen Recht sprechen. Sie haben daher ihren Ausspruch nach den bestehenden Gesetzen, ihrer gewissenhaften Ueberzeugung gemäß zu thun; sollen sie befugt sein, lediglich nach Billigkeit eine Ausgleichung unter den Parteien festzusetzen (amiables compositeurs), so ist hierzu eine ausdrückliche Ermächtung der Parteien erforderlich" (Entwurf eines Handelsgesetzbuchs für die Preussischen Staaten, 1857, 2. Tl.: Motive, S. 595). 25 Wobei für den Fall, dass die Parteien nicht positiv disponiert haben, das handelsgerichtliche Verfahren als Grundlage dienen soll, Art. 1054. 26 Motive zu dem Entwürfe einer Prozeß-Ordnung in bürgerlichen Rechtsstreitigkeiten für den Preußischen Staat S. 334 (zu § 1372). 27 Protokolle der Kommission a. a. O. (Fn. 14), S. 2234 f. (zu § 1372 PreußEntw 1864).

Entwicklung der Schiedsgerichtsbarkeit in Deutschland

173

lung den Parteien und den Schiedsrichtern. In beider Hinsicht und nochmals begründet - im RefEntwRCPO 187129 und im Entwurf der Bundesratskommission von 1872 (KommEntwRCPO 1872) 30 - weichen von diesen Ergebnissen die Verfasser der RCPO 1877 nicht mehr ab.

V. Staatliche Kontrolle von Schiedssprüchen: ordentliche Rechtsbehelfe Auch für das zweite Hauptstück, das Thema der Rechtsbehelfe gegen die Entscheidung der Schiedsgerichte, also ihrer Kontrolle durch die staatlichen Gerichte, kann man Modelle aufstellen, und zwar vergleichbarer Art zur Frage der Bindung an die Gesetze: - Appellation / Berufung ist schlechthin zulässig - Appellation ist zulässig, wenn sie die Parteien nicht verbieten (negative Dispositon) - Appellation ist unzulässig, wenn sie die Parteien nicht erlauben (positive Disposition) - Appellation / Berufung ist schlechthin unzulässig - Von der Frage der Appellation sind nicht berührt bestimmte qualifizierte Rechtsbehelfe, die dann unterschiedlicher Art sein können - Technisch kann die beschwerte Partei im Wege des Rechtsmittels oder im Wege der Klage oder durch Gegenrede im Völlstreckungsverfahren ihre Absicht verfolgen.

28 Protokolle zu § 1370 [PreußEntw 1864]: "Hinsichtlich des von dem Schiedsrichter zu beobachtenden Verfahrens war die Kommission mit dem Inhalt des § 0.1370. des Preußischen Entwurfs einverstanden." (Protokolle a. a. O., Fn. 14, S. 2233). 29 Begründung zu § 770: „Das Verfahren vor den Schiedsrichtern ist in Ermangelung einer Vereinbarung der Parteien dem Ermessen der Schiedsrichter selbst überlassen; nur die Anhörung beider Theile ist ihnen, abgesehen von jener Vereinbarung, unbedingt zur Pflicht gemacht. Die Befolgung der Vorschriften der Prozeßordnung (preuß. Allg. Ger. Ordn. Th. I. Tit. 2 § 0.171., Code de proc. art. 1009., bayer. Proz. Ordn. § 0.1332.) kann von den Schiedsrichtern schon deshalb nicht verlangt werden, weil dadurch die Wahl der Parteien auf solche Personen, welche mit diesen Vorschriften vertraut sind, beschränkt werden würde. Dieser Grund trifft zwar nicht mehr ganz zu, wenn die Anfechtung des Schiedsspruches wegen formeller Verstöße auf den Fall der Versagung rechtlichen Gehörs beschränkt wird (§ 0.777.); aber dann ist die Verpflichtung zur Anwendung der Prozeßordnung praktisch ohne Bedeutung. Die freiere Stellung der Schiedsrichter im Verfahren und diese Beschränkung der Anfechtung stehen in Wechselwirkung zu einander; die Annahme entgegengesetzter Grundsätze würde bei dem Mangel an Erfahrung der Schiedsrichter zu zahlreichen Streitigkeiten führen" (Entwurf einer Deutschen Civilprozeßordnung nebst Begründung, Berlin 1871, S. 512). 30 Begründung des KommEntwRCPO 1872, S. 617 (zu § 788).

174

Knut Wolfgang Nörr und Kerstin Schlecht

Auch hier können wir, was die Appellation anbelangt, vom französischen Muster der negativen und dem Genfer Muster der positiven Dispositionsmöglichkeit ausgehen 31 . Jedoch wenn Schiedsrichter nicht an die staatlichen Gesetze, der ordentliche ausschließlich an sie gebunden ist: was wäre dann der Gegenstand der Berufung? Bellot hat sich in seinem Exposé des motifs mit dieser Frage nicht auseinandergesetzt. Aber als man sich näher mit der Appellation befasste, entdeckte man ein zweites Dilemma, gewissermaßen in umgekehrter Richtung: wenn der Schiedsrichter an die staatlichen Gesetze gebunden ist, die Appellation gegen seine Entscheidung aber nicht zugelassen wird, welche Bedeutung soll dann der Vorschrift der Bindung an die Gesetze noch zukommen? A u f beide Fragen hat dann die den NorddEntw 1870 beratende Kommission die einzig vernünftigen Antworten gegeben: Mehrere Mitglieder hielten es nicht für angemessen, dem Schiedsrichter die Verpflichtung zur Entscheidung nach den bestehenden Gesetzen aufzuerlegen. Es sei gerade ein Hauptzweck der Abschließung von Schiedsverträgen, wurde ausgeführt, den Schwierigkeiten und Verwickelungen, welche aus der Anwendung der positiven Gesetze entstehe, zu entgehen. Der Schiedsrichter solle weniger nach strengem Rechte, als nach Billigkeit und bon sens („comme amiable compositeur"- Belgisches Projet de révision du code de proc. civ. [1869] Art. 8. - ) entscheiden. Eben deshalb würden auch die ordentlichen Rechtsmittel gegen den Schiedsspruch versagt. Der Herr Referent [Heinrich Eduard Pape aus dem preußischen Justizministerium] erachtete Letzteres nicht für entscheidend und bemerkte, daß die Bedeutung des Schiedsvertrages nicht darin bestehe, von der Anwendung des geltenden Rechts zu abstrahiren, sondern nach Maßgabe des geltenden Rechts durch einen Andern als den ordentlichen Richter entscheiden zu lassen; ein Vertrag, der das Gegentheil festsetze, nämlich bestimme, daß der Schiedsrichter eine Entscheidung erlassen dürfe, welche er für angemessen erachte, obschon er sich überzeugt habe, daß sie mit dem geltenden Recht nicht im Einklang stehe, lasse sich schwerlich als ein Schiedsvertrag betrachten und nach den Regeln des letzteren beurtheilen. Man erwiderte, daß, wenn das Gesetz kein Mittel gewähre, die Nichtanwendung der bestehenden Gesetze zu rügen, die Verpflichtung zu deren Anwendung ohne Bedeutung sei. Die Kommission beschloß mit Stimmenmehrheit, die Verpflichtung des Schiedsrichters, nach den bestehenden Gesetzen zu entscheiden, nicht auszusprechen. ( . . . ) In Betreff der Berufung wurde bemerkt, daß es für diese an der erforderlichen Basis unter allen Umständen fehle; die Berufung sei daher positiv auszuschließen. ( . . . ) Die Kommission war demnächst einig, die Berufung gegen schiedsrichterliche Urtheile nicht zuzulassen (Protokolle a. a. O. S. 2234 f.). Diesem Ergebnis ist dann auch die RCPO gefolgt 3 2 . 31

Vgl. Art. 1010 C.pr.civ.: „Les parties pourront, lors et depuis le compromis, renoncer à l'appel. Lorsque l'arbitrage sera sur appel ou sur requête civile, le jugement arbitral sera définitif et sans appel"; Art. 362 des Genfer Prozessgesetzes: „Dans les autres cas, l'appel ne sera recevable qu'autant que la faculté en aura été expressément réservée par l'acte de nomination des arbitres"; jedoch auch Art. 361 des Genfer Prozessgesetzes: „L'appel à la Cour de justice civile (Tit. XXIII) ne sera point admis contre un jugement arbitral sur une contestation qui, portée devant les tribunaux inférieurs, eût été jugée en dernier ressort." 32 Siehe die Begründungen des RefEntwRCPO 1871, S. 512 (unten), und des KommEntwRCPO 1872, S. 618.

Entwicklung der Schiedsgerichtsbarkeit in Deutschland

175

V I . Staatliche Kontrolle von Schiedssprüchen: außerordentliche Rechtsbehelfe Von der Appellation ist ein anderes Thema zu unterscheiden, nämlich der qualifizierte Rechtsbehelf gegen die schiedsgerichtliche Entscheidung. Im Ausgangspunkt lässt sich hierbei feststellen, dass alle in diesem Beitrag behandelten Gesetze und Entwürfe außerordentliche Rechtsbehelfe vorsehen, und dass diese Rechtsschutzmöglichkeiten im Grundsatz nicht von den Parteien abbedungen werden können. Was nun die Regelung im Detail angeht, so haben die Gesetze und Entwürfe hierbei mehrere Ziele verfolgt und mehrere Formen abgewogen. Dabei lassen sich zwei wesentliche Einteilungsgesichtspunkte unterscheiden, nämlich die Art der Anfechtungsgründe und die Art der Geltendmachung dieser Anfechtungsgründe. 1. Nach der Art der Anfechtungsgründe sind im Großen und Ganzen vier Kategorien zu unterscheiden, die hier nach zunehmender Kontrolldichte dargestellt werden. - Beschränkung der Kontrolle auf Gründe, die der Durchsetzung des Parteiwillens 33 und der für den Staat unverzichtbaren Regeln 34 dienen (Modell 1) - Zusätzlich dazu Kontrolle des Verfahrens auf prozessuale Arglist 35 hin (Modell 2) - Auch Kontrolle des Verfahrens, inwieweit die Verfahrensgarantien 36 eingehalten worden sind (Modell 3) - Dazu noch Kontrolle (Modell 4)

in materieller

Hinsicht

auf wesentliche

Fehler

Ausgangspunkt der hier behandelten Entwicklung ist die PreußAGO, die das Modell 4 verkörpert: Nach § 172 (Teil I Titel 2) ist der Schiedsspruch nichtig, „1) wenn die Parteien gar nicht gehört, oder offenbar erhebliche Thatsachen ganz unerörtert gelassen; 2) wenn gegen ein den vorliegenden Fall ganz klar entscheidendes Landesgesetz erkannt worden ist". Von dieser sehr weitgehenden Rechtsschutzmöglichkeit sind die nachfolgenden Gesetzgeber aber rasch abgerückt. Be33 Dies sind Gründe, die den Schiedsvertrag betreffen (z. B. Unwirksamkeit des Schiedsvertrags, Überschreitung seiner Grenzen), der Grund des Verstoßes gegen den Grundsatz „ne ultra petita" und Fehler in der Besetzung der Schiedsgerichte. 34 Darunter fällt die schiedsrichterliche Entscheidung über Gegenstände, die der Schiedsgerichtsbarkeit entzogen sind, und die Verurteilung zu einer verbotenen Handlung. 35 Gemeint sind die Fälle, in denen das Urteil auf einer falschen Zeugenaussage, auf einer falschen Urkunde etc. beruht. 36 Rechtliches Gehör und Begründung des Schiedsurteils.

176

Knut Wolfgang Nörr und Kerstin Schlecht

reits i m C.pr.civ. 1806 findet außerordentlicher Rechtsschutz nur noch nach Modell 2 statt 3 7 . Dasselbe gilt für das Genfer Prozessgesetz 38 . Die BadProzO 1831 reduzierte den außerordentlichen Rechtsschutz noch weiter: sie ist unter das 1. Modell einzuordnen (§§ 206, 2 1 0 ) 3 9 . Der EntwWürttHGB 1839 scheint auf den ersten Blick dem Badischen System zu folgen. Art. 851 dieses Entwurfs lautet: Die Nichtigkeitsklage, welche aber im Schiedsverträge nicht vorbehalten zu seyn braucht, findet statt, wenn der Schiedsspruch ohne gültige Entscheidungsbefugniß, oder mit Ueberschreitung ihrer Grenzen gefällt wurde. Dass dieser erste Eindruck täuscht, ergibt allerdings ein Blick in die Motive zu Art. 8 5 1 4 0 : ... wäre freilich die eine Partei gar nicht gehört worden; so fiele dieß schon unter die Worte des Artikels, weil der Schiedsrichter seine Befugniß nur unter dieser Bedingung erhalten hat. Der EntwWürttHGB 1839 ist somit unter das Modell 3 einzuordnen 41 . Die nachfolgende Entwicklung ist durch einen ständigen Wechsel in Bezug auf Intensität des Rechtsschutzes gekennzeichnet. So folgt der EntwWürttProzO 1848 nur noch dem 2. M o d e l l 4 2 , während die bürgerliche Proceßordnung für Hannover von 1850 (ProcOHann 1850) den Rechtsschutz sogar noch strikter als i m Sinn des 1. Modells reduziert 4 3 . 37 Vgl. Art. 1026 i.V.m. Art. 480 ff. und Art. 1028. 38 Vgl. Art. 358 und Art. 359 i.V.m. Art. 281 bis Art. 286. 39 Art. 210 lautet: „Die Nichtigkeitsklage findet gegen Schiedssprüche auch in den Fällen Statt, wo die Parteien im Schiedsverträge kein Rechtsmittel vorbehalten haben, in so fem der Schiedsvertrag selbst ungültig oder die Grenzen der darin ertheilten Entscheidungs-Befugniß in Hinsicht auf Umfang oder Zeit überschritten sind." 40 Entwurf eines Handelsgesetzbuches für das Königreich Württemberg mit Motiven, Π. Theil: Motive, S. 703. 41 In dieser Hinsicht weicht der EntwWürttHGB 1839 also durchaus von der BadProzO 1831 ab, obwohl er die entsprechende Vorschrift dieser Prozessordnung zum Vorbild genommen hat (vgl. Motive zu Art. 851: „ . . . nach dem Vorgange der bad. Proc.Ordn. ..."). Der Unterschied rührt daher, dass in § 210 der BadProzO 1831 von der Überschreitung der im Schiedsvertrag erteilten Entscheidungsbefugnis in Hinsicht auf Umfang oder Zeit gesprochen wird, während die Generalklausel im württembergischen Entwurf diese Beschränkung nicht vorsieht. Diese Beschränkung auf Umfang und Zeit verbietet aber gerade, auch die Nichtgewährung des rechtlichen Gehörs als Überschreitung in diesem Sinne zu verstehen. 42 Siehe Art. 197, 202 Nr. 1 bis 3, Nr. 4 i.V.m. Art. 1267 Nr. 4 bis 6 und 8, Art. 204 i.V.m. Art. 1283. 43

Vgl. § 533 Π der Proceßordnung, der auf § 533 I, also die Regelung über die Vollstrekkung ausländischer Urteile verweist. § 533 I wiederum verweist auf die Vorschriften über die Rechtshilfe (§ 29). Zu prüfen ist danach unter anderem, ob „die Ausrichtung der Handlung den Dienstbefugnissen und Pflichten des ersuchten Gerichts zuwiderlaufen würde." Vgl. dazu auch Fußnote 1 zu § 29. Danach wird Rechtshilfe gewährt, „wenn ... die Handlung, worauf die Requisition gerichtet ist, eine dem requirierten Richter gesetzlich erlaubte ist."

Entwicklung der Schiedsgerichtsbarkeit in Deutschland

177

Eine Begrenzung auf das 1. Modell findet sich auch i m EntwPreußHGB 1857 (Art. 1062 I). In den Motiven zu Art. 1062 4 4 wird diese Ausgestaltung unter anderem in Auseinandersetzung mit der PreußAGO begründet: Die Nichtigkeitsgründe (sc. der AGO) sind nicht genug präzisirt; ihre Bedeutung und Tragweite unterliegt einer verschiedenen rein subjektiven Auffassung. Die Zulassung ihrer Geltendmachung mittelst eines besonderen außerordentlichen Rechtsmittels würde auch ein besonders dringendes Bedürfniß voraussetzen; ein solches ist jedoch nicht vorhanden; denn wenn die Parteien auf die gewöhnlichen Rechtsmittel nicht verzichtet haben, so genügen diese, haben aber die Parteien darauf verzichtet, so ist es sachgemäßer und förderlicher, daß sie alsdann für verpflichtet angesehen werden, den Schiedsspruch als unumstößlich gelten zu lassen, als daß das Gesetz ihnen noch gestattet, die Art und Weise, wie die Schiedsrichter das Sachverhältniß ermittelt und festgestellt und den Rechtspunkt beurtheilt haben, zum Gegenstand eines Angriffs zu machen. Der PreußEntw 1864 steigert demgegenüber in § 1378 den Rechtsschutz i m Sinne des 3. Modells. Hingegen beschränkt der EntwDresd 1866 den Rechtsschutz bereits wieder und folgt dem Modell 2: nach Art. 974 kann der Schiedsspruch „von den Vertragschließenden nur angefochten werden, wenn der Schiedsrichter den ihm ertheilten Auftrag überschritten oder sich einer Arglist oder einer groben Fahrlässigkeit schuldig gemacht hat". Dem Modell 2 folgt auch die BayProzO 1869 (vgl. Art. 1338 und Art. 1341 i.V.m. Art. 761 ff.). Der NorddEntw 1870 kehrt schließlich wieder zu Modell 3 zurück, allerdings nur in abgeschwächter Form: zwar sind in § 1172 Nr. 4 und 5 die Anfechtungsgründe fehlendes Gehör und fehlende Begründung aufgeführt 45 , doch werden sie zur Disposition der Parteien gestellt. Der RefEntwRCPO 1871 (§ 777) enthält in dieser Beziehung (Modell 3 in abgeschwächter Form) keine Änderung mehr 4 6 . 44 Entwurf eines Handelsgesetzbuchs für die Preussischen Staaten, 1857, 2. Tl.: Motive, S. 597. 45 Wahrend der Beratungen wurden gegen diese Anfechtungsgründe Bedenken geäußert, da sie auf bloßen Prozessvorschriften beruhten. Die Mehrheit genehmigte allerdings diese Gründe. (Protokolle a. a. O., Fn. 14, S. 2238 f.). 46 Auf S. 515 der Begründung des Entwurfs wird in Abgrenzung zur PreußAGO ausgeführt, weshalb der Entwurf nicht Modell 4 gefolgt ist. Außerdem wird auch die Anschließung an Modell 3 gerechtfertigt: „Wenn die Anfechtungsklage wirklich etwas anderes sein soll, als ein Rechtsmittel, so muß die Begründung derselben von der Begründung eines Rechtsmittels sich durchaus fern halten. Die Richtigkeit der Entscheidung in der Sache selbst kann nicht weiter in Frage gezogen werden, als daß sie wie ein ausländisches Urtheil, aus welchem ein Vollstreckungsurtheil gesucht wird (§ 0.579.), im Resultate nicht einem Verbotsgesetze widersprechen darf (§ 0.777. Nr. 2). Die einzige überhaupt festzuhaltende Vorschrift des Verfahrens, die Anhörung beider Theile (§ 0.770), ist von solcher Bedeutung, daß deren Verletzung durch das Gesetz der Rüge nicht entzogen werden kann (Nr. 4.), und gleich steht das Fehlen von Entscheidungsgründen bei dem Schiedssprüche (Nr. 5.), da dasselbe die Prüfung, ob die Entscheidung auf Gründen beruht, welche die Anfechtung gestatten (§ 0.493. Nr. 1-4.6.), unmöglich macht, und die Nothwendigkeit, Entscheidungsgründe zu geben, überhaupt als eine Garantie sorgfältiger Prüfung anzusehen ist (bayer. Proz. Ordn. Art. 1336. 1338. 1339.). Doch unterliegen diese Anfechtungsgründe (Nr. 4.5.) lediglich der Verfügung der Parteien, so daß diese die Schiedsrichter von den entsprechenden Pflichten entbinden können."

12 Piergiovanni

178

Knut Wolfgang Nörr und Kerstin Schlecht

Dasselbe gilt für den Entwurf einer Deutschen Civilprozeßordnung (KommEntwRCPO) von 1872 (§ 795) 47 . 2. Nach der Art der Geltendmachung außerordentlicher Rechtsbehelfe kann man folgende Gestaltungen unterscheiden: - Zulässig nur außerhalb des Vollstreckungsverfahrens - Zulässig nur innerhalb des Vollstreckungsverfahrens - Zulässig sowohl innerhalb als auch außerhalb des Vollstreckungsverfahrens - Differenzierung je nach Art des Rechtsbehelfs In einigen Entwürfen, die (auch) Rechtsschutz innerhalb des Vollstreckungsverfahrens vorsehen, findet neben der Prüfung von Nichtigkeitsgründen nach Geltendmachung durch die unterlegene Partei auch eine Prüfung von Amts wegen statt. Fast immer handelt es sich dabei um die Prüfung, ob in Hinblick auf das Streitobjekt ein Schiedsgericht überhaupt zulässig ist 4 8 und ob eine Verurteilung zu einer verbotenen Handlung vorliegt 49 . Die vorgenommene Unterscheidung nach der Art der Geltendmachung außerordentlicher Rechtsbehelfe ist deshalb von Bedeutung, weil sie einen wesentlichen Aspekt des Verhältnisses des Staates zur Schiedsgerichtsbarkeit ausdrückt: Wünscht der Staat generell nicht, dass Schiedsurteile ohne jede Kontrollmöglichkeit gefällt werden, dann wird er die Möglichkeit außerordentlicher Rechtsbehelfe auch außerhalb der Vollstreckung vorsehen. Kommt es ihm hingegen nur darauf an, eine gewisse Prüfung zu gewährleisten, bevor er zum Zweck der Vollstreckung in Anspruch genommen wird, bevor sich also eine Partei des Staates zur Durchsetzung bedienen will, dann wird er den Rechtsschutz auf das Vollstreckungsverfahren verlagern. Betrachtet man nun die verschiedenen Gesetze und Entwürfe, so ergibt sich zunächst, dass die PreußAGO unter die 1. Kategorie einzuordnen ist. Sie sieht in § 174 die Geltendmachung von Nichtigkeitsgründen nur außerhalb des VöllstreckungsVerfahrens vor, wobei für die Erhebung der Nichtigkeitsklage dieselbe 10-Tages-Frist gilt wie für die Erhebung der Appellation. 47 Die Formulierung des § 795 Nr. 1 (Unzulässigkeit des schiedsrichterlichen Verfahrens), die auch in die endgültige Fassung der Reichscivilprozeßordnung von 1877 aufgenommen wurde (§ 1041 Nr. 1), führte später zu Auslegungsproblemen. Vgl. dazu Krause a. a. O. (oben Fn. 8), S. 115 Fußnote 652: „Es ist streitig geblieben, ob nur die Unzulässigkeit des Verfahrens im ganzen oder auch ein einzelner wesentlicher Verfahrensmangel die Nichtigkeitsklage begründet." 4 « Beispielsweise Art. 1020 des C.pr.civ. 1806; § 206 BadProzO; Art. 197 EntwWürtt 1848; § 1176 NorddEntw 1870; § 778 RefEntwRCPO 1871. 49 § 534 der bürgerlichen Proceßordnung für Hannover von 1850 mit der Besonderheit, dass hier ausschließlich eine Prüfung von Amts wegen vorgesehen ist; um einen außerordentlichen Rechtsbehelf handelt es sich also im Grunde nicht; § 1176 NorddEntw 1870; § 778 RefEntwRCPO 1871.

Entwicklung der Schiedsgerichtsbarkeit in Deutschland

179

Den Gegenpol dazu bildet der EntwPreußHGB 1857. Aus den Motiven zu Art. 1062 50 ergibt sich, dass die als einziges außerordentliches Rechtsmittel vorgesehene Nichtigkeitsklage nur im Wege der Opposition gegen die Vollstreckbarerklärung des Schiedsspruchs angebracht werden kann. Der Feststellung, dass nach rheinischem Recht 51 die Nichtigkeitsklage auf diesem Wege geltend gemacht wird (Art. 1028 II), schließt sich folgender Satz an: ... eine Aenderung dieser Form, in welcher die Parteien nach Art. 1028. die Nichtigkeitsklage anzustellen haben (demanderont la nullité), ist durch den Art. 1062. des Entwurfs nicht festgesetzt; dies mag, um etwaiges Mißverständniß zu verhüten, im Einführungsgesetze angedeutet werden.

Demgegenüber kann der C.pr.civ. als Prototyp des differenzierenden Modells (4. Kategorie) bezeichnet werden. Während es für den Rechtsbehelf des requête civile in Art. 1026 ohne Bedeutung ist, ob das Vollstreckungsverfahren bereits eingeleitet ist oder nicht, können die Nichtigkeitsgründe des Art. 1028 nur im Wege der opposition à l'ordonnance d'exécution 52 geltend gemacht werden. Dieser Ausgestaltung hat sich auch das Genfer Prozessgesetz angeschlossen. Während für die révision in Art. 359 keine Beschränkung vorgesehen ist, kann die demande en nullité gem. Art. 358 nur im Wege des Einspruchs gegen die Vollstreckungsklausel geltend gemacht werden 53. Schließlich findet sich dieses differenzierende Modell auch in der BayProzO 186954. Betrachtet man diese drei Gesetze, die das differenzierende Modell repräsentieren, so erkennt man noch eine zusätzliche Gemeinsamkeit, die die Art der Anfechtungsgründe betrifft: Die Gründe, die der Durchsetzung des Parteiwillens und der für den Staat unverzichtbaren Regeln dienen, können jeweils nur in der Vollstreckung geltend gemacht werden (mittels Nichtigkeitsklage bzw. opposition). Demgegenüber handelt es sich bei den Gründen, die auch außerhalb der Vollstreckung geltend gemacht werden können (im Wege der Wiederaufnahme bzw. requête civile) um solche, die der Verfahrenskontrolle dienen, etwa in Hinblick auf prozessuale Arglist. Andere Wege geht die BadProzO 1831. In § 210 findet die Vollstreckung keine Erwähnung. Das allein gegebene außerordentliche Rechtsmittel der Nichtigkeitsso EntwPreußHGB 1857, 2. Tl.: Motive, S. 598 (zu Art. 1062). 51 Gemeint ist der C.pr.civ. 52 Aus Art. 1020 ergibt sich, dass die ordonnance d'exécution der heutigen Vollstreckungsklausel entspricht. 53 Art. 358 lautet: „ . . . La demande en nullité sera formée par un exploit d'ajournement, contenant opposition à l'ordonnance d'exécution." 54 Vgl. Art. 1341 für die Wiederaufnahme des Verfahrens einerseits und Art. 1338 für die Nichtigkeitsklage andererseits, Letzteres mit der Besonderheit, dass hier alle Nichtigkeitsgründe auch von Amts wegen zu beachten sind. 12*

180

Knut Wolfgang Nörr und Kerstin Schlecht

klage ist also sowohl innerhalb als auch außerhalb der Vollstreckung statthaft, was zur Einordnung in Kategorie 3 führt. Gleiches gilt für den EntwWürttHGB 1839 (Art. 851). Dem Badischen Modell folgen weiter der EntWürttProzO 1848 55 , der PreußEntw 1864 56 und der NorddEntw 187057. Auch der RefEntwRCPO von 1871 schließt sich hier an, was in den Motiven zu §§ 779-781 (S. 517) wie folgt begründet wird: ... In dieser Bedeutung sollen sie 58 nicht bloß als Abwehr gegen eine begonnene oder durch Ertheilung der Vollstreckungsklausel drohende Zwangsvollstreckung (vergl. Code de procé. art. 1028) zulässig sein; denn es ist im Interesse des unterliegenden Theils, die Vollstreckbarkeit von vornherein abzuwenden.

Der KommEntwRCPO 1872 59 ändert an dieser Einordnung nichts mehr.

60

55 Vgl. Art. 202 für die Nichtigkeitsklage und Art. 204 für die Wiederherstellungsklage; beide Normen erwähnen die Vollstreckung nicht. 56 Die allein vorgesehene Nichtigkeitsklage ist, wie sich aus § 1378 f. ergibt, außerhalb der Vollstreckung zulässig. Daneben ist die Nichtigkeitsklage gemäß § 1386 als Klage gegen die Erteilung des Vollstreckungszeugnisses vorgesehen. (Vgl. dazu Motive a. a. O. (Fn. 25), S. 336: „ . . . ist es (sc.: das Zeugniß der Vollstreckbarkeit) ertheilt, (kann) von der anderen Partei in gleicher Weise die Vernichtung des schiedsrichterlichen Urtheils verlangt werden. Im letzteren Falle stellt sich die Klage als die Nichtigkeitsklage des §. 1378. dar... 57 Vgl. § 1172 f. für die Zeit vor der Vollstreckung und § 1177 für die Zeit ab Vollstreckbarerklärung. 58 Sc.: die in § 779 genannten Anträge, auf die sich die Fristbestimmung des § 780 bezieht. 59 Vgl. Begründung des KommEntwRCPO 1872, S. 618 f. (zu § 788): " . . . Soweit die Anfechtung eines Schiedsspruchs zu gestatten war, mußte in anderer Weise Vorkehr getroffen werden. Als passende Formen boten sich die Klage auf Aufhebung des Schiedsspruchs und die Einwendung des Aufhebungsgrundes gegenüber der Klage auf Erlassung eines Vollstrekkungsurteils. Demgemäß hat der Entwurf zur Geltendmachung der Gründe, aus denen nach § .795. die Aufhebung eines Schiedsspruchs beantragt werden kann, im § .799. die Klage und im § .796. Abs. 2. die Einrede gegeben ..." 60 Im KommEntwRCPO 1872 findet sich die Besonderheit, dass vor der Vollstreckung anstelle eines einseitigen Antrags auf Klauselerteilung eine Klage auf Vollstreckbarerklärung vorgeschrieben ist (§§ 796-798). In der Begründung findet sich dazu folgende Erläuterung (S. 621 f.): „Die Analogie zwischen dem Urtheile eines ausländischen Gerichts und einem Schiedssprüche ist unverkennbar. In beiden Fällen handelt es sich um Urtheile, welche von einem Gerichte erlassen sind, das weder von dem Reiche noch von einem der Bundesstaaten eingesetzt ist. Es ist daher in beiden Fällen nothwendig, bevor das Urtheil für vollstreckbar erklärt wird, daß der Verurtheilte gehört, daß also die Vollstreckbarkeitserklärung im Wege einer actio judicati beantragt werde. Der Entwurf hat demgemäß im § .796. die Vorschriften des § .599. über die Zulässigkeit der Zwangsvollstreckung aus dem Urtheil eines ausländischen Gerichts zur Richtschnur genomen."

Entwicklung der Schiedsgerichtsbarkeit in Deutschland

181

V i l . Gesetzgebung in der Mitte des 19. Jahrhunderts: Politik oder reine Pragmatik? Um die Jahrhundertmitte hatte, wie wir sahen, das Schiedsgerichtswesen deutlich an Bedeutung zugenommen. Dieser Entwicklung stellte sich die Gesetzgebung nicht entgegen, sie machte sich vielmehr die „Förderung des Instituts" 61 , seine „gedeihliche Entfaltung" 62 zu eigen und sie konstatierte die „Neigung der Zeit", die das Schiedsvertrag favorisiere 63, durchaus im affirmativen Sinn 64 . Verbergen sich, so muss nun die Frage lauten, dahinter bestimmte „Politiken", bestimmte „Philosophien", auf die man historiographisch eingespielte Kategorien anwenden könnte, oder handelt es sich um eine Pragmatik des Tages, um Zweckhaftigkeiten und Realismen ohne einen verbindenden Gedanken? 1. Wenn wir zunächst die wirtschaftspolitische Frage stellen, also prüfen wollen, ob sich wirtschaftspolitische Tendenzen finden lassen, welche, langfristig oder prinzipiell angelegt, in einer uns heute geläufigen Terminologie auch als ordnungspolitische Richtungen bezeichnet werden könnten, dann fallen die Antworten mager bis zur Nullgrenze aus. Freilich werden wir von diesem Ergebnis nicht überrascht. An anderer Stelle hatten wir gesehen, dass selbst das Kodifizieren eines Handelsrechts (in Form des Allgemeinen Deutschen Handelsgesetzbuchs) keine prinzipiellen Überlegungen und Zielvorstellungen wirtschaftspolitischer Art hervorgerufen hat 65 . Ein, zwei Ausnahmen waren zu beobachten gewesen; aber dem Material, das uns vorliegt, ist nicht zu entnehmen, dass die Gesetzgebung zum Schiedsgerichtswesen eine weitere Ausnahme gebildet hätte. Irgendein Formprinzip der Wirtschaft spiegelt sich weder in den Bestimmungen noch in den Beratungen der Gesetze und Entwürfe wider. 2. Mehr Ertrag bringt die rechtspolitische Fragestellung. Man kann unschwer entdecken, dass das Schiedsgerichtswesen ganz bewusst als privatrechtlich geprägtes Institut aufgefasst wird. Und in dieser seiner Natur, so nimmt sich die Legislative vor, soll es gefördert werden. An der Intensivierung des Privatrechts, wie sie als allgemeine Erscheinung im 19. Jahrhundert zu beobachten ist, nimmt auf diese Weise auch unser Gegenstand teil. Um Beispiele am Detail zu bringen: Weist der Schiedsvertrag Lücken hinsichtlich der Benennung des oder der Schiedsrichter auf, so soll die mutmaßliche Absicht der Parteien in Rechnung gezogen werden; 61 EntwPreußHGB 1857, 2. Tl.: Motive, S. 588 (zu Art. 1046 bis 1048). 62 Begründung des KommEntwRCPO 1872, S. 611 (zu §§ 779-800). 63 Protokolle a. a. O. (Fn. 14), S. 2227 (zu § 1364 PreußEntw 1864). 64 Siehe auch Begründung zu §§ 762-764 des RefEntwRCPO 1871 (S. 509) zur Ablehnung, die Schriftform des Schiedsvertrags gesetzlich vorzuschreiben: Die Schriftform „würde überall, wo der Schiedsvertrag Theil eines Handelsgeschäfts ist, den Abschluß des letzteren erschweren, und nach den Gewohnheiten des Handelsverkehrs würde dies von tief eingreifender Bedeutung sein." 65 Vgl. dazu Nörr, Kodifikation und Wirtschaftsordnung im Deutschland des 19. Jahrhunderts: ein Fall von benign neglect ?, ZNR 2001, 51, 56-58.

182

Knut Wolfgang Nörr und Kerstin Schlecht

man argumentiert also durchweg vertragsrechtlich 66. Führt die Abstimmung unter mehreren Schiedsrichtern zu einem Patt, dann hatte die PreußAGO die Ernennung eines Obmanns durch das Gericht vorgesehen: eine solche Anordnung jedoch „greift zu tief in die Rechte der Parteien selbst ein" 6 7 . Das Schiedsgericht wird „durch Privatwillkür der Parteien konstituiert", weshalb die Parteien auch das einzuschlagende Verfahren vereinbaren können 68 . Als Verlängerung des Privatrechts in die Konzeption des Prozesses kann man die Verhandlungsmaxime bezeichnen; auf sie wird rekurriert, wenn bestimmte Nichtigkeitsgründe nicht von Amts wegen beachtet werden sollen 69 . Nicht selten findet man Argumente aus der „Natur", dem „Geist", dem „Wesen" des Instituts: sie münden meist in eine Stärkung der Stellung der Parteien oder der Schiedsrichter und in eine entsprechende Zurückhaltung des Gesetzes. Man übertreibt wohl nicht, wenn man die Reformbemühungen um das Schiedsgerichtswesen als ein Stück Privatrechtspolitik betrachtet und in diesem Sinne den Satz versteht, der das grundsätzliche Ziel der Verfasser der RCPO auszudrücken versucht: Der Entwurf habe „der Idee und dem Zwecke des schiedsrichterlichen Instituts entsprechend das Verfahren so sehr vereinfacht und so praktisch gestaltet, daß dasselbe allen berechtigten Anforderungen zu entsprechen vermag und bei richtiger Wahl der Schiedsrichter günstige Ergebnisse liefern muß" 70 . Sollten wir nun den Begriff des Liberalismus ins Spiel bringen (ob als politisches oder als in die Juristensprache übersetztes philosophisches Konzept), so muss freilich unentschieden bleiben, ob wir es mit einem angesichts des „Zeitgeists" eher reflexiven, oder doch schon selbst reflektierenden Standpunkt der Redaktoren der Entwürfe und Gesetze zu tun haben.

66 Vgl. EntwPreußHGB 1857, 2. Tl.: Motive, S. 588 (zu Art. 1046 bis 1048); Protokolle a. a. O. (Fn. 14), S. 2230 (zu § 1368 PreußEntw 1864); Begründung des RefEntwRCPO 1871, S. 509 (zu §§ 765-767) und Begründung des KommEntwRCPO 1872, S. 614 (zu §§ 782, 783, 785). 67 Begründung des RefEntwRCPO 1871, S. 511 unten (zu § 769). 68 Vgl. EntwPreußHGB 1857, 2. Tl.: Motive, S. 593 Mitte (zu Art. 1054 bis 1056). Ähnlich zur Schiedsrichterbestellung Koch a. a. O. (oben Fn. 1) S. 6. 69 Siehe Entwurf und Motive einer Prozeß-Ordnung in bürgerlichen Rechtsstreitigkeiten für den Preußischen Staat (1864), herausgegeben von Werner Schubert, 1994, S. 336 der Motive (zu §§ 1381 bis 1388), Bemerkung 2. Vgl. auch Begründung des RefEntwRCPO 1871, S. 513 (zu §§771.772). 70 Begründung des KommEntwRCPO 1872, S. 611 (zu §§ 779-800).

A N T O N I O PADOA-SCHIOPPA

The Genoese commenda and implicita in a Discursus by Casaregis* Entrusting goods or capital to a seafarer in return for a share of his profits earned overseas or for further goods to be sold with conspicuous gain on their arrival in the home port: this manner of reaping profit through trade flourished in Italy's maritime centres from the twelfth century onwards. It assumed various well-known legal forms, and in particular that of the Genoese and Venetian commenda. The legal problems connected with these contractual arrangements have been studied by historians on the basis of a documentation which, in the case of Genoa, dates back as far as the twelfth century and includes a series of valuable notarial records, the most ancient in Europe. 1 Only much later did jurists turn their attention to the legal nature and specific features of this widespread form of contract, which by then had been current for centuries. A n d for the age of the late ius * To Professor Luigi Berlinguer. 1 Many thanks are due to professors Vito Piergiovanmi, Rodolfo Savelli, and Riccardo Ferrante for their friendly help in finding some Genoese doctrinal sources cite below. For the previous history of the commenda, see W. Silberschmidt, Die Commenda in ihrer frühesten Entwicklung, Würzburg 1884; A. Arcangeli, "La commenda a Venezia, specialmente nel secolo XIV", in Rivista italiana per le scienze giuridiche, 33 (1902), pp. 107-64 and in Id., Scritti di diritto commerciale ed agrario, I, Padua 1935, pp. 1 - 5 8 ; G. Lastig, Quellen der accomendatio, Halle 1903; Id., Die Accomendatio, Halle 1907; M. Chiaudano, Studi e documenti per la storia del diritto commerciale italiano nel sec. XIII, Turin 1930; G. Astuti, Origini e svolgimento storico della commenda fino al secolo 13° Turin 1933; Id., Note sulla collegantia veneta, Rome 1941; Id., Ancora su le origini e la natura giuridica del contratto di commenda marittima, Naples 1934; A. Lattes, Il diritto marittimo privato nelle carte liguri dei secoli 12° e 13°, [Rome] 1939; A. Scialoja, "La commenda nel diritto comune del Mediterraneo dei secoli ΧΙ-ΧΙΙΓ in Id., Saggi di storia del diritto marittimo, Rome 1946, pp. 6 7 176; J. Martinez Gijon, "La comenda en el derecho espanol. I. La comenda-depôsito", in Anuario de Historia del Derecho espanol, 34 (1964), pp. 31 - 140; S. Karpov , "Il contratto di commenda nel commercio italiano della regione del Pontos alla fine del XIII secolo", in "Istituto Intemazionale di Storia Economica "F. Datini" di Prato, L' Impresa Industria Commercio Banca Secc. ΧΠΙ-XVIII, 22 (1990), pp. 467-74; G. Galgano, Lex mercatoria, Bologna 19983; U. Santarelli, Mercanti e società tra mercanti, Turin 19983; for a recent survey see G. Mignone, "Commenda e società: riflessioni d'oggi su un antico tema", in Rivista di Storia del Diritto Italiano, 69 (1996), pp. 155-204. On economic history framework see R. Lopez, La rivoluzione commerciale del medioevo, Turin 1975; Medieval Trade in the Mediterranean World, Illustrative Documents by R. S. Lopez and I. W. Raymond, New York 1955; on the origins see above all J. H. Pry or, Commerce, Shipping.and Naval Warfare in the Medieval Mediterranean, London 1987.

184

Antonio Padoa-Schioppa

commune - when a rich doctrine of commercial law and its institutions had been developed in Italy, especially in the sixteenth and seventeenth centuries - historical research on the commenda is so far very scanty. The purpose of this brief essay is to show how the commenda was conceived by a celebrated author on commercial law, the Genoese Giuseppe Maria Casaregis (1670- 1737), a lawyer in that city and subsequently a judge of the Civil Rotas in Siena and Florence. His Diseur sus legales de comme rcio, which were first published in 1707 and had subsequently further editions with important additions by the author,2 belongs to the small group of works of commercial law which circulated not only in Italy but throughout Europe.3 As was usual in collections of this kind, it includes defensive pleadings, court decisions and legal opinions, but also texts which do not concern concrete cases but clarify doubtful points and settle possible disputes on commercial matters. The question addressed by Casaregis in his diseur sus 29 concerns the legal nature of the commenda , which in Genoese law took two forms bearing the names of accomendatio and implicita. The distinction between them was set out clearly in the Genoese statutes of 1589: the commenda was an arrangement by which an investor or 'commendator' (stans, accomendator) entrusted money or goods to a merchant or 'tractator' (accomendatarius , patronus navis , agent) who was entitled to a share of the profits deriving from his commercial and trade activities related to the goods or money entrusted to him - when, that is, he "particeps est". The implicita instead guaranteed the tractator only a previously agreed money sum or 'commission',4 to which he was entitled even in the case of accidental loss of the capital owing to shipwreck or other causes. Casaregis accepts this distinction, further specifying that the tractator's share of the profits would be stipulated beforehand in the case of the commenda , whilst in that of the implicita it normally amounted to two per cent of the capital.5 Casaregis declares that this distinction between 2 Referred to here is the posthumous Venetian edition of 1740: Josephi Laurentii Mariae De Casaregis , Discursus legales de commercio, Venetiis 1740, 4 tomes in three volumes. 3 See the reconstruction of Casaregis' life and works in V. Piergiovanni, "Dottrina, divulgazione e pratica alle origini della scienza commercialistica, Giuseppe Lorenzo Maria Casaregi, appunti per una biografia", in Materiali per una storia della cultura giuridica, 9 (1979), pp. 289-327. 4 Genova, Statuti civili (1589), 4. 13 de accommendis et implicitis: "declaramus accomendam intelligi de pecuniis mittendis pro emptione mercium et de mercibus mittendis ad hoc ut vendantur [ ... ] in quibus ille qui defert vel de eis habet administrationem particeps est; implicitam vero declaramus emptionem mercium per committentes ordinatam in quibus ille qui administrai seu exequitur non habet partem, sed solum capit suas provisiones [ ... ]" (Statu torum civilium Reipublicae Genuensis libri sex, Genuae 1589, lib. IV, chap. 13, p. 145). On the Genoese statute reform of 1588 see R. Savelli, Politiche del diritto a Genova tra medioevo ed età moderna, Genova 1992, pp. 113-121. 5

The commendator "pro mercede aut salario eius curae ac administrationis habet aliquam quotam seu partem super lucris juxta conventa; implicitarius autem suas tantum capit provisiones usque ad duo pro singulo centenario" (Casaregis , disc. 29, n. 7).

The Genoese commenda and implicita in a Discursus by Casaregis

185

commenda and implicita was endorsed by two leading experts on commenda and implicita - whom, however, he treats somewhat condescendingly, perhaps because they were not jurists in the proper sense: the Genoese Carlo Targa and Domenico Peri, authors of well-known and widely-used texts.6 Casaregis also dwells on the etymology of the two terms, pointing out - and also stressing that the matter was really only of interest to the pedants, "pro genio alicuius pilos in ovo scrutari solitos" - that the implicita was connected to the term 'impiego' and therefore denoted an economic and legal instrument for the investment of a sum of money.7 The point of law that Casaregis places at the centre of his treatment concerned the legal nature of the two contracts, the commenda and the implicita: arrangements, he maintains, which practitioners, "de solo usu contenti", were unable to frame correctly within the law, while the 'professors' - one notes the hint of irony - ignored them because they did not pertain to classical contractual forms, that is, "ad veram et regalem aliquam speciem contractus". 8 However, the matter of greatest interest to Casaregis was whether or not the commenda and the implicita gave rise to a commercial company. This was not solely a theoretical issue, because the liability of a partner was not the same as that of an agent, especially as regards liability towards third parties. And likewise as regards the sharing of the profits in the absence of an express agreement9. Casaregis points out that jurists had repeatedly laboured ("sese extorserunt") to resolve the problem. He recalls the thesis of the fifteenth-century Genoese lawyer Bartolomeo Bosco, who considered the commenda to be a "societas impropria". In effect, in his Consilia Bosco described the commenda as a type of a partnership governed by local customary law, and partly different from the societas regulated by the common law (in that "quaedam insunt ex consuetudine patriae, quae non insunt simplici societati") because the money entrusted by the principal to the agent (tractator ) was separate from that given to the agent by any other principal, 6 "Hanc nostram intelligentiam, licet regaliter minus, approbare etiam videtur Targa noster, de rebus maritimis admodum practicus [ . . . ] ac Jo. Dominicus Peri expertissimus negotiator [ . . . ] " (Casaregis, disc. 29, n. 7). Carlo Targa was a member of the Genoese College of the Causidici (Court Pleaders), and therefore did not belong to the socially superior class of the jurisconsults: on Targa see M. G. Merello Altea, Carlo Targa, giurista genovese del secolo 17°, Milano 1967; R. Ferrante, "Il governo delle cause: la professione del causidico neiresperienza genovese (XV-XVm secolo)", in Rivista di storia del diritto italiano, 62 (1989), pp. 181-298. The author of an important text on maritime law, Targa devoted a chapter in it to the commenda : Ponderationi sopra la contrattatione marittima, Genova 1692, cap. 34, pp. 150- 152. Giovanni Domenico Peri, also Genoese, stressed the usefulness of the commenda to both parties, given that "per Tordinario coloro che hanno il danaro non vogliono incommodarsi d'andar per il mondo a trafficarlo, e chi vi andarebbe non Γ ha, e cos£ uno supplisce per l'altro con utile d'amendue" (II Negotiante, Venezia 1682, parte IV, cap. 22 Accommende, p. 37). 7 Casaregis, Discursus 29, n. 6 (p. 94 a): "implicitans committit suas pecunias implicitario pro emptione rerum sive mercium ad majorem utilitatem". On the etymology, ibidem, n. 9. 8 Casaregis, Discursus 29, pr. (p. 93 b). 9 See on this the discussion in Migone, Commenda e società [note 1 above], p. 202 ff.

186

Antonio Padoa-Schioppa

and because the contract was not extinguished by the principal's death.10 Other commentators - in particular the Tuscan jurist Flaminio Armenzano - had instead defined the commenda as a societas limited to only purchases and profits 11 without the joint creation of capital: a kind of partnership that could be likened to the arrangement already envisaged by the Roman Law as a partnership comprising a passive partner and an active partner 12. Casaregis dismisses Bosco's opinion as erroneous; and he also rejects the latter thesis even though it had been embraced by the genoese jurist Bottini 13 , who had been Casaregis' master. His own theory was that neither the commenda nor the implicita had the nature of a partnership; rather they consisted of a special institorian contract in the case of the commenda, 14 and of a universal agency contract in that of the implicita. 15 Both, therefore, fitted within the framework of Roman Law. 16 Casaregis' contention that the commenda did not constitute a partnership was not new. Targa had presupposed it with his assertion that the agreement on which the commenda was based should be concluded "in modo [ ... ] che non si introduca società".17 Casaregis' reasoning in support of his thesis is mainly textual: in Genoa statute law itself established the difference between accommenda and societas: indeed, the statute of 1589 devoted two distinct rubrics to societates mercatorum and to accomendae et implicitae. 18 And the same distinction was drawn by the previous statutes: those of Pera 19 as well as those of the early fifteenth century, all !0 Bartholomaei de Boscho, Consilia, Lodani 1620, cons. 40, n. 2 (p. 64 b). 11 Casaregis repeatedly cites the very interesting decisio 36 by Flaminio Armenzano , Decisiones almae Rotae civilis serenissimae reipublicae Genuensis, Aesii 1679 (Casaregis, disc. 29, n. 2 and n. 19). 12 See Codex lust. 4. 37. 1, pro socio, 1. societatem : "societatem uno pecuniam conferente alio operam posse contrahi magis obtinuit". 13 Casaregis, disc. 29, n. 3. Casaregis cites Giuseppe Bottini [whom he recalled as "dominus meus"]: see Bottini's Collationes pontificii et caesarei juris ad statututm civile serenissimae reipublicae Genuensis, Genova 1787, cap. 13, de accomendis et implicitis, pp. 312-318. 14 "Nos vero semper arbitrati sumus quod talis contractus accommendae attenta dispositione statuti Genuensis § fin. nullam penitus societatis speciem in se contineat, sed potius contractus specialis institoriae censeri debeat" (Casaregis , disc. 29, n. 4). "Nulla idcirco inter hos duos contractus apparet notabilis differentia, licet forsan super rigore juris videretur quod accomenda sit potius contractus institoriae specialis, et implicita magis assimiletur mandato universali" (Casaregis , disc. 29, n. 7). 16 On the institorian contract see Digesta 14. 3. 17, de institoria actione, 1. si quis mancipiis. Casaregis also cites Oinotomus (Schneidewin), In quattuor Institutionum libros, Venetiis 1606, ad lib. IV § Institoria (p. 521). 17 Targa, Ponderationi [note 6 above], chap. 34, p. 150. is Genova, Statuti civili [note 4], IV, 12 and 13. 19 Statuti della colonia genovese di Pera, 211 (de societatibus, acomendacionibus et mutuuis ); 212 (de instrumentis societatis et acomendacionis) ; 214 (de acomendacione et socie-

The Genoese commenda and implicita in a Discursus by Casaregis

187

of which invariably made distinct mention of accomendatio and societas , even though the rules regulating the relations between principal and agent were the same.20 The above-mentioned statute of 1589 added that the agent was only entitled to a commission, "dum tarnen in predictis accomendis et implicitis societas aliqua seu ratio imposita non fuerit". 21 This specification suggested that a twofold form of commenda and implicita was recognized - on the one hand a form in which the agent did not share in the profits and that did not possess the characters of a partnership, and on the other a form consisting in a partnership between the commendator and the tractator, in which the profits were shared - although one has to observe that the latter was in apparent contradiction of the statute itself that defined the commenda. 22 Casaregis' argument runs as follows: under an opinion expressed by the Emilian jurist Carlo Ruini two centuries before, 23 strictly speaking the agency-institorial contract arising from the commenda or the implicita and stipulated between principal and agent took the form of a lease when goods were entrusted to the agent, or of an innominate contract when it was simply the amount of money due to the agent that was stipulated, unless there was a societas on the profits, because in this case the commenda established a partnership. This latter eventuality Casaregis excluded for Genoa because its statutory laws, as said, expressly distinguished between commenda and società 24 This is a somewhat tangled construct, in that diverse contractual forms are simultaneously cited to describe the same institution, albeit on the basis of authoritative doctrinal opinions. Anyway, from this qualification Casaregis draws the conclusion that the commenda , unlike the partnership and unlike the free agency, did not expire upon the commendator's death, and thus resembled the institorial contract in that it persisted beyond the death once the business venture had begun.25 täte alicuius ), edited by V. Promis, in Miscellanea di storia italiana, 11 (1870), pp. 513-780, pp. 739-44. 20 Statuta ed décréta communis Genuae (1413), lib. Ill, rubr. 43-53, Bologna, Bazalerio 1498, fol. 58v - 61 v.; Supplementi alle Leggi del Bucicaldo, suppl. I (1403-1407), in Leges Genuenses, ed. Desimoni / Poggi, in Monumenta Historiae Patriae, tome XVIII, Augustae Taurinorum 1901, col. 731-741. See on these texts, V. Pergiovanni, Gli statuti civili e criminali di Genova nel Medioevo, La tradizione manoscritta e le edizioni, Genoa 1980, pp. 142166, cf. p. 228. On this period of statutory law in Genoa, see the recent critical discussion by R. Savelli, in Repertorio degli statuti della Liguria (sec. X I I - X V I I I ) , Genova 2003 ('Fonti per la storia della Liguria', XIX), pp. 36-65. 21 Genova , Statuti civili (1589) [note 4], IV, 13 in fine (p. 145). 22 In the text quoted above at note 4. 23 Caroli Ruini , Responsorum sive consiliorum tomus primus, Venetiis 1581,1, cons. 115, nr. 8. 24 Casaregis, disc. 29, n. 8. By Ruini he cites cons. 115 as in the previous note. On Ruini see M. Cavina, Carlo Ruini: un'autorità del diritto comune fra Reggio Emilia e Bologna, fra 15° e 16° secolo, Milano 1998. 25 Casaregis , disc. 29, nn. 10-16. He again draws on Ruini, Mantica and other authors to maintain that this non-extinction was operative under the commenda even if the agent's ac-

188

Antonio Padoa-Schioppa

It frequently happened that a tractator would accept goods and capital from several commendators for the same voyage. In this case, Casaregis stresses - citing the statutory provisions - that the tractator was obliged to keep separate accounts for all commissions received. But it might also happen that the commendators would form a partnership, giving the tractator-agent the task of managing the goods that they entrusted to him: this, therefore, was a "societas per viam accomanditae".26 It is here that Casaregis clarifies the entire matter: hinc enim contractus sub duplici respectu considerari debet, uno nempe ad ipsos socios, inter quos vere ac proprie vertitur societas, altera inter socios ac accomendatarium sive institorem, inter quos proprie constituitur accomenda.27

Hence the commenda - i. e. the contract that tied the commendators to the tractator - did not constitute a partnership but rather an arrangement that we would call an exchange contract; and the commendators could, if they so wished, set up a partnership among themselves. Left unresolved by Casaregis, though, is whether this societas could be extended to include a tractator who furnished his own share of capital in money or goods and thereby gave rise to a commenda termed 'bilateral'. Although Casaregis does not discuss this question,28 some ancient statutory rules show that capital was frequently contributed by tractators, and that the sharing of the gains was a source of disputes with their passive partners. 29 At the time of Casaregis another arrangement was widely used in commercial relationships: the società in accomandita or commandite partnership. Legislatively regulated for the first time in Florence in 1508, the commandite partnership was in many respects, and not solely by virtue of its legal name, very similar to the comtivity had not begun. And he again criticises Bosco, who related it to the Genoese customary law, when the consequence instead derived from the ius commune. Casaregis examines the legal issues concerning a societas on the death of a partner in discursus 145 (vol. II, p. 70). 26 Casaregis, disc. 29, n. 19, pr. On joint liability - according to the case either unlimited or limited solely to the share of capital conferred - of the partners for the tractator's action see Casaregis' important considerations in discursus 39 (vol. I, pp. 139-41) and in discursus 144 (vol. II, pp. 64-69). 27

Casaregis, disc. 29, n. 19: according to Casaregis, therefore, Armenzano, in his alreadycited decis. 36, had been wrong to call the commenda a mixed partnership contract "per viam accommendae". 28 See instead Casaregis' discussion in discursus 66 (vol. I, p. 229 ff.) of the differing legal positions of the ship's captain (patronus navis) according to whether or not he had a share of the capital to be traded. 29 The Statutes of Pera, rubr. 121 de societatibus, accomendacionibus et mutuis, ed. cit. [note 19 above], p. 740, also reproduced in the Statutes of 1413, lib. Ill, rubr. 42 de pecunia accepta in societate accomendacione vel mutuo, ed. cit [note 20 above], fol. 59 v. In these cases the magistrates must ascertain from the overseas consuls the amount of expenses made by the tractator in relation to the sums and values declared at the time of the voyage. It could happen, in fact, that on his return a tractator would declare that he had purchased part of the goods or capital out of his own funds so that he could retain a larger share: "quia multotiens fraudes committuntur per accomendatarios in rebus societatum vel accomendationum", as the statutes cited eloquently put it. This provision was omitted in the Statutes of 1589.

The Genoese commenda and implicita in a Discursus by Casaregis

189

menda. This explains why Casaregis discusses it in an appendix (additio) to his discourse on the commenda which he probably wrote towards the end of his life as a Rota judge in Tuscany. After emphasising that the accomandita "multum solet practicari Florentiae", he illustrates the structure of the institution, in which a category of passive partners, the accomandanti , contributed the capital and were liable only up to the sum that each of them had invested. They did not interfere in management of the venture, which was instead the prerogative of the active partner or partners, the accomandatari, who had unlimited and joint liability. 30 Casaregis explains that two exceptions came about: when an accomandante interfered in corporate affairs (in which case he assumed unlimited liability), 31 and when, instead of the accomandatario , the accomandanti appointed an agent to manage the partnership. 32 In the second of these two cases, Casaregis maintains, the società in accomandita was indeed a normal societas managed by an agent, in which the latter used his own name and not that of the accomandanti. However, it is not clear whether, for Casaregis, the limited liability of the accomandanti continued to apply in this case. It is to be noted that in Genoa the already-mentioned statutes of 1589 established that passive partners of a normal partnership (societas ) whose names were not used were only liable in proportion to their shareholdings: 33 a rule typical of the commandite partnership, perhaps introduced in Genoa in imitation of the Florentine law that had first regulated the accomandita. Also the regulations relative to the passive partners in the commenda were characterized by marked flexibility, as we have seen, in that the commendators could either form a partnership or remain independent, each bound only by his contract with the tractator for the sum of money or the goods entrusted to the latter. Albeit with the specifications set out in the additio , for Casaregis the difference between società in accomandita and commenda still applied, for only the former created an associative bond between accomandanti and accomandatario. To conclude: the thesis propounded by Casaregis seems coherent with a tradition, that of Genoa, which since the distant past had clearly distinguished a societas from a commenda. Denying that the commenda (and the implicita) constituted a partnership had consequences of indubitable importance. The commenda did not 30 Casaregis , disc. 29, additio , n. 24-25: "accomandantes seu participes in accomandita non obligantur erga creditores accomanditae ultra capitalia per eos respective in negotio exposita, accomandatarius vero in solidum obligatur erga omnes secum contrahentes". 31 Casaregis, disc. 29, additio, n. 27: "limita tarnen, si aliquis ex accomandantibus passus fuerit vel permiserit aut expresse voluerit nomen suum ab accomandatario etiam expendi, quia tunc sine dubio in solidum ultra capitalia cum eodem accomandatario teneretur". 32 Casaregis, disc. 29, additio, n. 28: "limita secundo, si accomandatarius esset tantum praepositus ab accomandantibus pro administratore seu complimentario alicuius negotii, ita ut ille appareret nudus minister sive institor dicti negotii [ . . . ] , quia tali casu accomandita non posset sustineri nisi pro vera ac propria societate inter praeponentes, et accomandatarius diceretur merus institor [ . . . ] [ licet nomen proprium et non accomandantium expenderet." 33 Genova, Statuti civili (1589), IV. 12 (p. 257).

190

Antonio Padoa-Schioppa

expire with the commendator's death. And the tractator, in that he was not a partner but an agent, did not bore the unlimited and joint liability that instead accrued to the commendator. The difference is very clear in the accomandita, where the accomandatario i. e. the passive partner had unlimited liability. This characteristic of the commenda remained unchanged even if the tractator was entitled to a share of the profits, or if he was entitled to be paid even in case of absence of profits or in case of accidental loss of the goods entrusted to him: he had no liability for the obligations stipulated by him. It should however be pointed out that the Genoese statutes were common to both the accomendatio and the societas , and that questions of liability often concerned the relationships between principals and agent, with the intent of protecting the former from abuses of the latter, "quia multociens fraudes committuntur per acomendatarios", as a statute says.34 And the question discussed by Casaregis in his discursus 29, unlike many others discussed elsewhere, seems not having sprung from a concrete case. The fact that the commenda-implicita was not incorporated into the modern codifications - despite its careful specification in the Italian projects for a commercial Code during the Napoleonic age 35 - is perhaps understandable if one considers the evolution of Italian commandite partnership, which reveals the widespread custom of restricting the category of partners to passive ones alone (