I ASK pardon of the learned gentlemen of the long robe if I do them any
wrong in this chapter, having no design to affront them when I say that
in matters of debate among merchants, when they come to be argued by
lawyers at the bar, they are strangely handled. I myself have heard very
famous lawyers make sorry work of a cause between the merchant and his
factor; and when they come to argue about exchanges, discounts, protests,
demurrages, charter-parties, freights, port-charges, assurances,
barratries, bottomries, accounts current, accounts in commission, and
accounts in company, and the like, the solicitor has not been able to
draw a brief, nor the counsel to understand it. Never was young parson
more put to it to make out his text when he is got into the pulpit
without his notes than I have seen a counsel at the bar when he would
make out a cause between two merchants. And I remember a pretty history
of a particular case, by way of instance, when two merchants, contending
about a long factorage account, that had all the niceties of
merchandising in it, and labouring on both sides to instruct their
counsel, and to put them in when they were out, at last they found them
make such ridiculous stuff of it that they both threw up the cause and
agreed to a reference, which reference in one week, without any charge,
ended all the dispute, which they had spent a great deal of money in
before to no purpose.
Nay, the very judges themselves (no reflection upon their learning) have
been very much at a loss in giving instructions to a jury, and juries
much more to understand them; for, when all is done, juries, which are
not always, nor often indeed, of the wisest men, are, to be sure, in
umpires in causes so nice that the very lawyer and judge can hardly
understand them.
The affairs of merchants are accompanied with such variety of
circumstances, such new and unusual contingencies, which change and
differ in every age, with a multitude of niceties and punctilios (and
those, again, altering as the customs and usages of countries and states
do alter), that it has been found impracticable to make any laws that
could extend to all cases. And our law itself does tacitly acknowledge
its own imperfection in this case, by allowing the custom of merchants to
pass as a kind of law in cases of difficulty.
Wherefore it seems to me a most natural proceeding that such affairs
should be heard before, and judged by, such as by known experience and
long practice in the customs and usages of foreign negotiation are of
course the most capable to determine the same.
Besides the reasonableness of the argument there are some cases in our
laws in which it is impossible for a plaintiff to make out his case, or a
defendant to make out his plea; as, in particular, when his proofs are
beyond seas (for no protests, certifications, or procurations are allowed
in our courts as evidence); and the damages are infinite and
irretrievable by any of the proceedings of our laws.
For the answering all these circumstances, a court might be erected by
authority of Parliament, to be composed of six judges commissioners, who
should have power to hear and decide as a court of equity, under the
title of a “Court Merchant.”
The proceedings of this court should be short, the trials speedy, the
fees easy, that every man might have immediate remedy where wrong is
done. For in trials at law about merchants’ affairs the circumstances of
the case are often such as the long proceedings of courts of equity are
more pernicious than in other cases; because the matters to which they
are generally relating are under greater contingencies than in other
cases, as effects in hands abroad, which want orders, ships, and seamen
lying at demurrage and in pay, and the like.
These six judges should be chosen of the most eminent merchants of the
kingdom, to reside in London, and to have power by commission to summon a
council of merchants, who should decide all cases on the hearing, of both
parties, with appeal to the said judges.
Also to delegate by commission petty councils of merchants in the most
considerable ports of the kingdom for the same purpose.
The six judges themselves to be only judges of appeal; all trials to be
heard before the council of merchants by methods and proceedings singular
and concise.
The council to be sworn to do justice, and to be chosen annually out of
the principal merchants of the city.
The proceedings here should be without delay; the plaintiff to exhibit
his grievance by way of brief, and the defendant to give in his answer,
and a time of hearing to be appointed immediately.
The defendant by motion shall have liberty to put off hearing upon
showing good cause, not otherwise.
At hearing, every man to argue his own cause if he pleases, or introduce
any person to do it for him.
Attestations and protests from foreign parts, regularly procured and
authentically signified in due form, to pass in evidence; affidavits in
due form likewise attested and done before proper magistrates within the
king’s dominions, to be allowed as evidence.
The party grieved may appeal to the six judges, before whom they shall
plead by counsel, and from their judgment to have no appeal.
By this method infinite controversies would be avoided and disputes
amicably ended, a multitude of present inconveniences avoided, and
merchandising matters would in a merchant-like manner be decided by the
known customs and methods of trade.