PARTICIPATORY ADJUDICATION: COMMERCIAL COURTS

Commercial courts included courts of markets and fairs, courts of merchant guilds, and urban courts. Although guild and urban courts were not concerned exclusively with commercial matters, their commercial jurisdiction was sufficiently extensive to warrant their being treated as commercial courts.

Market and fair courts, like seignorial and manorial courts, were nonprofessional community tribunals; the judges were elected by the merchants of market or fair from among their numbers. Guild courts were also nonprofessional tribunals, usually consisting simply of the head of the guild or his representative, but often he chose two or three merchant members of the guild to sit as assessors in mercantile cases. Occasionally, a professional jurist would sit with the merchant assessors. Professional notaries often acted as clerks to take care of legal formalities. ²⁵ Urban mercantile courts, too, often consisted of merchants elected by their fellows. A law of Milan of 1154 authorized the election of "consuls of merchants" to sit on commercial cases, and this system of merchant consular courts spread to many Italian cites. It permitted foreign merchants to choose judges from among their own fellow citizens. The courts of the merchant consuls in the city republics of northern Italy gradually extended their jurisdiction over all mercantile cases within the

city. Other European cities adopted the Italian institution of the merchant consul or else developed similar institutions for adjudication of commercial cases by merchant judges. In some countries, royal authority was asserted over merchant guilds and over town markets and fairs, but even then the law merchant continued, in general, to be administered by merchant judges.

-346-

Various other types of commercial courts developed in the course of time in various parts of the West.

leather, and lead___ was channeled. Italian, Flemish, and German merchants and bankers handled

much of this business. The English offered protection to "merchant strangers" in the staple towns, and under the Statute of the Staple of 1353 the merchants of each staple town, as well as their servants and the members of their households, were to be "ruled by the law merchant [in] all things touching the staple, and not by the common law of the land, nor by the usage of cities, boroughs, or other towns." They were subject to the jurisdiction of the staple court, whose presiding officer was to be the mayor of the town, elected for a one_year term "by the commonalty of merchants, as well of strangers as of denizens." Thus foreign merchants participated in the elections of the mayors of English towns! The mayor was required to have "knowledge of the law merchant" and to judge according to it. Trials involving both a merchant stranger and an Englishman required a mixed jury composed half of foreigners and half of English subjects. Appeals could be taken to the chancellor and the king's council. 26_

Another type of commercial court was the local maritime court in seaport towns, with jurisdiction over both commercial and maritime causes involving carriage of goods by sea. These courts-called admiralty courts-would sit on the seashore "from tide to tide."

In all types of commercial courts the procedure was marked by speed and informality. Time limits were narrow: in the fair courts justice was to be done while the merchants' feet were still dusty, in the maritime courts it was to be done "from tide to tide," in guild and town courts "from day to day." Often appeals were forbidden. Not only were professional lawyers generally excluded but also technical legal argumentation was frowned upon.

The procedure of the commercial courts was, however, related to the summary (as contrasted with the ordinary) procedure in ecclesiastical courts. Summary procedure in special types of cases, including commercial cases, was authorized by a papal bull of 1306, the Decretal "Saepe Contingit" (from the opening words, "It often happens"). The bull referred to the pope's practice of sometimes referring cases to (ecclesiastical) judges with the instruction that the procedure "be simple and

plain and without the formal arguments and solemn rules of the ordinary procedure." To explain these words, the bull stated that the judge in such a case need not require a written complaint, that he should not require the usual type of pleading, that he might proceed even in time of vacations, that he should cut off dilatory exceptions, and that he should reject unnecessary appeals that caused delay as well as the "shouting" of advocates, prosecutors, parties, and superfluous witnesses. In such cases, the bull stated, the judge "shall interrogate the parties, either at their instance or on his own initiative wherever equity so requires." 28 This decretal-found its way into later Italian statutes establishing mercantile courts; it also influenced German, French, and English commercial and maritime courts, including the English chancellor's court in its equity jurisdiction.

In England, the speed of merchant justice was stressed by Bracton, who wrote that there were certain classes of people "who ought to have swift justice, such as merchants, to whom justice is given in the Court Pepoudrous" (the "plepowder" or "dusty feet" courts of fairs and markets).

The principle of speedy, informal, and equitable procedure in the commercial courts was, of course, a response to mercantile needs. That response could only be made, however, because of the communal, or participatory, character of commercial adjudication. Like the other characteristics of mercantile law -­its objectivity, universality, reciprocity of rights, integration, growth -- the communal character of commercial adjudication (that is, the participation of merchants in the resolution of mercantile disputes) may be viewed as a principle of abstract justice, a legal ideal. From that point of view it may be evaluated negatively as well as positively, for while it contributed to the equitable solution of individual commercial cases it also helped to insulate commercial law from ecclesiastical, royal, and even urban control and to preserve mercantile privileges. But the system of participatory adjudication of commercial cases must also be viewed in historical terms as an aspect of the relative autonomy of the mercantile class and of its law in the formative era of the Western legal tradition -- an autonomy relative to the overarching unity of Western law, with its interaction of spiritual and secular authorities and, within the secular, of feudal, manorial, commercial, urban, and royal legal systems.