-the earliest form - develops into insurance of various sorts; groups of persons contributing jointly for various purposes (protection, purchase) develop a type of economic association; companies formed to carry on colonies, banks, and insurance, develop the general type of stock-company. Conversely, legal transactions and relations originally independent of each other, are ultimately recognized (by courts, legislators, and jurists) to be united in principle, as varieties of a single economic and legal type. For example, the classification of all commercial associations into the three varieties, viz., partnership, limited partnership, and stockcompany, was first made in modern times, in the French Code of Commerce (1807). Sometimes the manifold forms originally existing, or afterwards developed, fall gradually into disuse, and a single form replaces them; for not every simplification, in evolution, signifies progress. For example, the original Roman transactions of "sponsio," "fidepromissio," mandatum," constitutum debiti," "receptum argentarii,' fidejussio argentarii," give place to a colorless abstraction, viz., warranty or suretyship. So also the sundry primitive forms of joint obligation are replaced by the single idea of solidarity; and the innumerable kinds of marital property tenures are simplified into a few types.

99 66

The kernels, or even the defined principles, of important legal institutions can sometimes be traced in existence for centuries, before they come to their full development. Here the hindrance was perhaps some unfavorable economic condition, or some rival legal principle; until finally, under changed conditions, the principle reached its maturity. The early classic times, for example, possessed the principle of insurance, of money-remittance by bill of exchange, of instruments transferable to order or bearer; yet all of these, so far as can be learned, waited for a thousand years or more before they found general recognition.

9. Commercial Law as a Separate Body of Law. A special law of commerce, as a separate branch, had not been known as early as the times of the Oriental peoples. In classic antiquity, and among the Germanic peoples, it appeared only in the nucleus. Nevertheless, a considerable part of private law in classic times, as well as in the Germanic period, after the rise of the great medieval cities, bears dominantly commercial features, and is formed particularly to favor the needs of commerce, especially the wholesale trade between nations and localities. The more or less well defined separation, now obtaining in one form or another in almost all civilized peoples, is a creation of the later Middle Ages in Italy

and of modern codifications. progressed in occupational pursuits, the more distinctly the middleman's function of the merchant became separated from other callings the greater became the economic scope of this service, so much the more extensive became the body of law specially applicable to it.

But the further the division of labor

The distinguishing feature of commercial law may be sought either in the fact or in the idea; i.e., we may emphasize either the commercial fact (and incidentally the legal idea applicable), or we may emphasize and formulate the controlling legal principle. The same group of commercial facts may be governed by distinct legal rules, and vice versa. The distinction is illustrated when we remember that in the ancient world we owe the origin of our commercial transactions (in great part) to the Babylonians and the Egyptians, the Phoenicians and the Greeks; but it was the Romans who first gave them definite legal principles. So again, in the Middle Ages, the various commercial methods and institutions were contributed partly from the Germanic peoples, partly from the Orientals, partly from the inheritance of classic times; but they received their typical legal forms from the Romanic peoples, especially the Italians. This process of devising legal principles and forms for the commercial transactions can be traced from its earliest beginnings in the annals of the professional clerks and notaries.

1

If, now, we ask, which are the peoples whose contributions have been the vital ones in the continuous development of the body of universal commercial law, we may thus name them in the order of their historical rise: 1, 2. The empires of Western Asia and the East Mediterranean, especially the Egyptians and the Phoenicians, form the great commercial region. The "merchant" is here preeminently the Phoenician, whose trading-posts and colonies spread even to the Atlantic shores. 3. The Hellenes gradually took over the domination, in commerce as well as in civilization generally, of a large part of both East and West, and from Alexander's time assimilated to themselves the Orient more and more markedly. 4. The Romans, founding a world-empire, brought it into wellordered mastery in about five centuries, and gave it an everincreasing unity of law.

1 [The author here eliminates the far Eastern peoples; the Hindus and the Persians; the Finns and the Lithuanians and Slavic peoples; the Kelts; and the early Americans. He then groups the remainder for (1) ancient times, (2) medieval times, (3) modern times. Here the description of the first group only is reproduced.]

The four great peoples of antiquity the Egyptians, the Babylonians (and their Semitic relatives, the Syrians, Phœnicians, etc.), the Greeks, and the Italians, each (as Mommsen says) in its own way built up a civilization of its own on a grand scale, and helped in manifold relations to each other to develop in a welldefined and ample way all the elements of human progress, until its destiny was fulfilled. It is a truism that in economics, as in legal life, innumerable rivulets and springs unite to form one great stream. But the universal features in the history of this merging were received only from those nations which were gifted with the talent of absorbing and infusing these elements with its own spirit and of preserving and transmitting them to its successors. It is in this sense that the economic and legal ideas of the Oriental peoples, of the Hellenes, of the Romans, and the Romanic Mediterranean region, of the Germanic peoples North and West, may be deemed universal, as well as national, in their significance.

And yet, it remains to say, the contrast between antiquity and modern times must ever be kept in mind. In the period between ancient Egypt in its industrial prime and the 1700 s our own era - a period of from two to three thousand years or so the technical features of industrial life underwent no radical alteration. And so also, for the technique of commerce and commercial law, it is equally true that in the more than fifteen centuries that witnessed the successive predominance of Phoenicians, Hellenes, and Romans, progress and regress apparently alternate in the scales, without decisive gains maintained. No period of the later Middle Ages can be named which in all its aspects so surpasses the commercial life of the ancient world at its best period, especially that of the Roman empire, that we can speak of an absolute superiority in commercial and legal type. It would not be far wrong to assert that not until the last two centuries of our own era do we find the full development of all the principles which already existed profusely in embryo for the many thousand preceding years of commercial history.

CHAPTER XXIII

PRIMITIVE COMMERCIAL LAW1

3

4

Ir may be taken as established by political economy that the most ancient commerce was of a migratory sort, and between different tribes, or peoples. The origin of commerce, therefore, is closely related to the activities of peoples; and the beginning of commercial law is bound up with the laws of peoples and international law, as well as the most primitive form of international law the law of strangers or aliens. It has been rightly emphasized by Post and other investigators, that everywhere on the earth, it is the first principle of the law of aliens, that the stranger has no rights whatever. "Only a relationship to a social group provides any guaranties for life and property." Therefore, between peoples who are foreign to each other by descent and language, there is either no communication at all, or only intercourse of a positively hostile nature. Inasmuch, as the death or imprisonment of an alien is regarded not as a wrong, but as a praiseworthy act, so on a chance meeting, every person who is unwilling to meet a stranger as an enemy, takes to his heels as speedily as possible. Yet, it would be a mistake to suppose that an utter absence of friendly communication among uncivilized peoples, is the rule. On the contrary, it may be regarded as demonstrated by ethnology and ancient history, that definite beginnings of commerce are not incompatible with the lower stages of culture; for even among such peoples there are found "implements and adornments which have come from thousands

6

1 [By CARL KOEHNE, "Markt-, Kaufmanns-, und Handelsrecht in primitiven Culturverhältnissen," VI, in "Zeitschrift für Vergleichende Rechtswissenschaft,' Bd. XI (1895) pp. 196 seq.; and translated by Albert Kocourek.]

2 Schmoller, Jahrb. XIII, pp. 1053-55, XIV, p. 1036; Roscher, "System der Volkswirtschaft," III, Sec. 16, pp. 99 seq.

4

"Aufgaben," p. 38, "Afr. Jur.,

P. 176.

Cf. Fallati, "Z. f. d. ges. Staatsw.," VI (Tübingen, 1850), pp. 185, 201; Dargun, "Z. f. v. R.," V, p. 82; Roscher, "System," III, p. 111. 5 Post, Afr. Jur.,

p. 175.

6 Cf. Dargun, loc. cit., p. 82.

7 Cf. Fallati, loc. cit., p. 175.

of miles." 1 In fact, there may be extensive commerce among uncivilized races, based on the well-known custom of "silent trading," without diminishing the principle of a lack of rights in aliens, or the distrust which arises from it. One party places an article at the boundary, or at some other place which is visited by the other, and withdraws; thereupon, the other party lays down, in return, an article, which, however, is not removed until it corresponds in worth to the offer.2 An advance is indicated, when the traders stand face to face, but yet at a distance which makes violent acts, and especially seizure of the person, impossible.3

Notwithstanding the great interest of these kinds of commerce for ethnology, they are of no significance for jurisprudence. On the other hand, the various ceremonies by which different uncivilized peoples communicate their desire to engage in friendly commerce are the first germs of international institutions, and are equally of importance for the universal history of law. For this reason, such customs as gestures and touching which express friendly salutation, the smoking of the pipe of peace, entertainment in the home, bearing of twigs, etc., are significant not only for [the evolution of] commerce, but also for such international objects, as for example, a treaty of peace. It may be recalled, therefore, that the frequently attested, and even to-day, here and there, existent custom of using twigs for the purpose of giving notice of the making of commercial agreements," has its origin in the usage which employed foliage as a token of peace. But this custom is not only a "common Germanic, and, presumably, a common Aryan" institution (as has recently been stated by 1 Cf. Schmoller, Jahrbuch, XIII, p. 1053; Peschel, "Völkerkunde" (Leipzig, 1885), pp. 215-6.

2 Cf. Schmoller, loc. cit.; Roscher, "System," III, p. 112; "Z. f. allg. Erdkunde" (Berlin, 1854), I, pp. 13–16 (Andrée), and II, p. 243 (Gumprecht).

3 Such is the commerce of the Malays at the southern point of Timor; see George Windsor Earl, "The Native Races of the Indian Archipelago,' (London, 1853), p. 183.

4 Cf. Fallati, loc. cit., pp. 201-210. That the smoking of the peacepipe is employed as a legal symbol for the establishment of commerce, is observed by Lafiteau, "Moeurs des Sauvages Americains" (Paris, 1724), p. 331.

Cf. Richard Schröder, in Béringuier, "Die Rolande Deutschlands," (Berlin, 1890), pp. 20, 21. In addition to the evidence there noted, it may be added that in Vienna, according to an ordinance of 1459, the public criers of wine held a branch in their hands-("Ber. des Wiener Alterthumsv." III, p. 286); and that even to-day, in Siberian villages, the vodka tavern is made known by a branch (Kennan, "Siberien" (trans. by Kirchner, Berlin, 1890), p. 203).

Schröder, loc. cit.