Law merchant

“ Every person must have his requirements supplied as soon as possible. To facilitate this exchange, therefore, it is well that a class of men should devote themselves entirely to it—merchants. The right to be a merchant is conferred exclusively upon a certain number of citizens, which number the government must determine by calculation, as their property in the state. ”

“ The merchants again—unless merchants recognise and feel themselves bound by the sense of honour to fulfil their contracts, all trading would become impossible. But you will say that the merchant who repudiates his contract can be taken to the law-court. ”

“ Yes Madam, I would have Law Merchant for that too—and in all cases of slander currency, whenever the Drawer of the Lie was not to be found, the injured Party should have a right to come on any of the indorsers. ”

“ The extract from the Hereford Iter appears to refer to the same clothier. It illustrates the growth of a demand for written evidence, the lawyer throwing scorn on the value of the tally, though tallies had been commonly used at the king’s Exchequer. The reference to Law Merchant should be noted. Edward I by the Statute of Acton Burnell in 1283 had established courts in certain boroughs in which merchants might have merchant law for the recovery of debts. ”

“ The methods of government are as uncertain as those of trade: it is no more likely that a law which has been placed on record will be enforced, than that your merchant will fill his contract within a specified time, — which, indeed, is a small accident, that happens occasionally in better regulated communities. ”

“ What buys land, will buy every thing the land produces; and what buys the product of land, will buy [Pg 193] all other goods whether home or foreign. if wine is brought from France, the merchant designs to lay out his money on goods, at interest, or on land: the commission does not receive silver money, so he cannot have a bond from the commission, unless he give the value in paper; and many of the landed men won’t take silver for their goods or lands, having occasion for paper to pay the commission. ”

“ Merchant (see Statute) . Merchants (see Trade) , rights of under Magma Charta; rights of in England early recognized; liberties of reaffirmed in statute of York; free to come and move in England; freedom of in England by statute of York; liberties of in statute of 1340; safety of in England guarded by legislation; having goods to the value of five hundred pounds may dress like gentlemen; may freely trade in England and carry goods out of the realm; may ship in foreign ships. Meyer, Dr. Hugo R., quoted. Middlemen (see Regrating) , nearly all regraters; laws against ”

“ When the bill of sale is executed the purchaser becomes entitled to all the benefits of ownership, and incurs all the liabilities. If the sale is unconditional, the purchaser is liable for supplies though he may never have taken possession of the vessel, and neither the master nor the merchant furnishing the supplies knew of the sale. The purchaser is not liable for repairs made and supplies furnished before the sale, unless he has agreed to pay for them, or the vessel was at sea at the time. ”

“ Houses in staple towns must be let at a reasonable rate, and conspiracies or combinations against the law of the staple made criminal. Again our ancestors showed themselves more civilized than we, this time in their Custom-house proceedings; for Article 26 of this statute provides that "whereas a Duty is payable of three pence in the pound by all merchant strangers coming into the kingdom, they may show their letters or invoices to prove the value of their goods, and if they have no letters, they shall be believed by their oath ... ”

“ Nevertheless, in spite of the occurrence of such difficulties, it would be foolish to contend that the laws in force for the time being have not a greater influence on the practice of mercantile transactions than the convenience of merchants has upon the law. ”

“ We must by no means be understood as saying that mercantile usage, however extensive, should be allowed to prevail if contrary to positive law, including in the latter such usages as having been made the subject of legal decision, and having been sanctioned and adopted by the courts, have become, by such adoption, part of the common law. ”

“ A nation may gain where the merchant loses, but wherever the merchant gains, the nation gains equal, and so much more, as the maintenance and wages of the people employ’d and the duty on the goods amounts to. if a ship insur’d is lost, the nation loses, and the merchant loses nothing; but in that case the insurer is the merchant, and loses equal to the nation.
As trade depends on money, so the encrease or decrease of the people depends on trade. ”

“ So long as foreign trade, and expence kept equal, exchange was at the par: but when a people imported for a greater value, or had other occasions abroad, more than their export, and the expence of foreigners among them would ballance; there was a necessity of sending out the ballance in money or bullion, and the merchant or gentleman who owed, or had occasion for money abroad, to save the trouble, expence and hazard of sending it out, gave so much per cent to another, as the trouble, expence and hazard was [Pg 39] valued at. thus exchange rose above the par, and became a trade. ”

“ It is no more 'an account,' and no more connected with 'the trade of merchandise,' than a bill of exchange or a contract for the rent of a house, or the hire of a carriage, or any other single transaction which might take place between individuals who happened to be merchants. An entry of it on the books of either could not change its nature, and convert it from an insulated transaction between individuals, into an account concerning the trade of merchandise, between merchant and merchant. ”

“ The merchant who deals in English goods gains no more than when exchange was at the par, tho’ he sells dearer; nor the merchant who deals in Scots goods less, tho’ he sells cheaper; they have both the same profit as when exchange was at the par. [Pg 45] Scotland pays 2 per cent more for English goods, and England 2 per cent less for Scots goods: all, or a great part of the loss falls at last on the landed man in Scotland, and it is the landed man in England has all, or a great part of the benefit. ”

“ There must also be butchers who will sell parts of animals to foreigners and craftsmen, and their servants; and foreigners may buy firewood wholesale of the commissioners of woods, and may sell retail to foreigners. All other goods must be sold in the market, at some place indicated by the magistrates, and shall be paid for on the spot. He who gives credit, and is cheated, will have no redress. In buying or selling, any excess or diminution of what the law allows shall be registered. The same rule is to be observed about the property of metics. ”

“ If ’tis ask’t how a Dutch merchant trades who has only 500 lib. stock? he restricts his expence so as he can afford to trade at 10 per cent profit: or money being in greater quantity in Holland, whereby it is easier borrowed, and at less use; he gets credit for more at 3 or 4 per cent, by which [Pg 26] he gains 6 or 7. and unless money be in greater quantity in Scotland, or expence retrench’d, we cannot trade so cheap as the Dutch; tho’ we have advantages for trade that they have not, and tho’ they be under disadvantages we are not lyable to. ”

“ This is the same as if a merchant who had a 100 different sorts of goods, and was offered 30 per cent profit upon 90 of them; but no body offering [Pg 98] above 20 per cent profit for the other 10 sorts, should add a quarter to the measure by which he measured his goods, and sell all the 100 sorts for the same price he sold them before: as this merchant would find himself a considerable loser by this expedient, so will a nation who raises their money. ”

“ For, even under a prohibition to sell, a person could import, as he often does, for his own consumption and that of his family and plantations; and also if a merchant, extensively engaged in commerce, often does import articles with no view of selling them here, but of storing them for a higher and more suitable market in another state or abroad.' Page 620. 'But this license is a regulation neither of domestic commerce between the states, nor of foreign commerce. ”

“ The subject of Commercial Law is of great and growing importance in the multiplying relations of mankind. Every new tie of commerce gives new occasion for its application. Besides the general principles of the Law of Contracts, it comprehends the Law of Bailments, Agency, Partnership, Bills of Exchange and Promissory Notes, Shipping, and Insurance,—branches of inexpressible interest to lawyers, merchants, and indeed to every citizen. ”

“ Upon the first of them, relating to the premises having been parted with by Clarke to De Grasse, upon a consideration other than cash, we remark that sale is a word of precise legal import, both at law and in equity. It means at all times, a contract between parties, to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold. ”

“ Courts, however, must recognize from necessity the methods of carrying on business at the present day, and apply well-settled principles of the common law to enforce contracts, unless they are forbidden by statute, or violate some rule of public policy. The daily mercantile business of the country (mercantile deals-and by that I mean the sale and purchase of personal property) could not be successfully carried on if merchants and dealers were unable to sell something which they did not have, but which they intended to get in the market and buy before the day of delivery. ”

“ Ten per centum ad valorem is imposed on all such goods, wares, and merchandise, except the two articles named as exempted, whether they were or were not subject to duty as articles of direct trade under any antecedent law, if they fell within the conditions specified in the sixth section of the act imposing the duty. ”

“ On the contrary, both in England and in the United States the doctrine is universally recognized that, where commercial paper is sold without indorsement, or without express assumption of liability on the paper itself, the contract of sale, and the obligations which arise from it, as between vendor and vendee, are governed by the common law relating to the sale of goods and chattels. ”

“ I have, indeed, no idea of the private advantage of a legal trader: for unless, sir, we neglect our duty of providing that no commerce shall be carried on to the detriment of the publick, the merchant's profit must be the profit of the nation, and their interests inseparably combined.
It may, however, be possible, that the merchants may, like other men, prefer their immediate to their greater advantage, and may be impatient of a painful remedy, though necessary to prevent a more grievous evil. ”

“ A reaction to the English common law is the statute, common in recent years, prohibiting sales in bulk. It appears to have been a growing custom for merchants, particularly retail merchants, when in financial difficulties to sell their entire stock in trade to some professional purchaser by a simple bill of sale without physical delivery. Nearly all States have adopted statutes against this practice, although in several they have been held unconstitutional. The feeling that they are dishonest is doubtless justified by the facts ”

“ The true and safe way to encourage the export of such goods, as do not yield great enough profit; is by a draw-back. if serges sent to Holland give only 20 percent profit, 10 per [Pg 99] cent given as a draw-back will encourage their export: the draw-back given to the merchant is not lost to the nation, and what is got by the manufacture or export of the goods, is gained by the nation.
A draw-back is the best method yet known for encouraging trade, and it may be made appear, that 10 or 15000 applyed that way, will occasion an addition to the export to the value of a 100000 lib. ”

“ Contracts in restraint of trade, except such reasonable contracts as partnership, or the sale of a business with condition not to engage in the same trade in a certain limited locality or for a certain, limited time, have always been void at the common law. They are not, however, criminal except by statute, though a combination in restraint of trade, etc., was always so. We found many such statutes as we also found laws which gave a penalty in double or treble damages to the person injured by such combination or contract. ”

“ Customs have sprung from the necessities and the convenience of business and prevailed in duration and extent until they acquired the force of law. This mass of our jurisprudence has thus grown, and will continue to grow, by successive accretions. ”

“ Other illustrations arising out of the business of American merchants will readily occur to everyone. The result would be that there might be upon the shelves of a merchant in this country, ready to be used and openly exposed for sale, commodities or merchandise consisting of articles separately wrapped and of enormous value that could not be reached for local taxation until after he had sold them, no matter how long they had been kept by the importer before selling them. ”

“ In the next place, I am by no means prepared to concede that the interests of commerce, and certainly other great interests in society, are to be benefited by incursions upon the common law jurisprudence of the country. ”

“ This trade of freighting brings the goods of other countries to Holland, tho’ design’d for sale elsewhere. if woollen manufacture from England to Portugal yields 25 per cent profit, and to Holland 15; the English merchant will choose to fend such goods to Holland for 15 per cent, rather than to Portugal for 25; and the Dutch [Pg 30] merchant who is able to trade cheaper, from the cheapness of freight, etc. is satisfied for the other 10 to carry to Portugal.
Most authors who have wrote on trade divide it into national and private. they say, a merchant may gain where the nation loses. ”