Of A Court Merchant

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