COMMERCIAL LAW

New Zealand Mail, Issue 1745, 16 August 1905, Page 27

COMMERCIAL LAW

At tlie meeting of the Wellington Accountant Students’ Society, liekl in the Chamber of Commerce on Thursday evening, Mr D. T. Stuart presiding, Sir Robert Stout delivered a lecture on “ The Origin of Commercial Law.” Prefacing the historical aspect of the subject with the remark that “ the lawgiver is not the originator of law, but generally the person who. first codifies existing customs and calls them laws,” the lecturer went on to compare some existing modern commercial law’s with that which existed in Babylon 2242 years before our present era. Coming to the Mosaic Ten Commandments, he pointed out that they assumed the existence of private property, and the knowledge of what constituted theft. As illustrating the fact that even in New Zealand custom had preceded law, Sir Robert instanced more than one case where the Courts had ruled to that , effect. Reviewing the various transactions that are included under the term commercial law’, he traced many of them back to the earliest historical periods. The custom of paying by bills of exchange w r as referred to the great fairs of the Middle Ages, when it- was unsafe for traders to carry quantities of coin. The interesting fact was mentioned that as lately as" the reign of William and Mary bills were looked upon as purely mercantile instruments, and that persons who were not merchants could not be sued on them. After dealing at length with the historical development and extension of the custom of paying by bills and promissory and bankers’ notes, the lecturer proceeded to deal with the growth of law’s regulating the carriage of goods and insurance. It was show’n that all of these had originated in commercial usage and custom. The same was the case witn the laws regarding the sale and pledge of goods. Sir Robert them referred at some length to the important work done by Lord Mansfield in the creation of commercial law in Eingland, and said he had mostly follow’ed what had been decided as the mercantile laws o>f the Continent.

The one branch, of commercial law that was really modem, said the. lecturer, was that -which dealt with jointstock companies. In England these dated from 1844. It was then shown how these modern laws were opposed to the policy which had been favoured in England for centuries previous, duiing which joint-stock companies were re- i garded with great disfavour. The older acts bearing on trading and insurance corporations were reviewed briefly, JUKI the question a's to the benefits or otherwise of the creation of joint-stock companies was touched on. The opinion of the eminent Australian politician Sir William MacMillan that the devotion of able men to the management of commercial companies had deprived political life of too many upright and able men was quoted as an example of the indirect consequences of the system of joint stock companies. The analogy between tbe modern growth of such companies under the Joint Stock Liability Act and the development of the factory system in place of the individual worker was ,

pointed out. These things were, said the lecturer, not referred to either as advantages or evils, but merely as showing a pronounced feature of our presentday development. Sir Robert then dealt with the historical growth of the custom of assigning debts, and the development of this into law. Dealing similarly with the laws regulating the right to goods passing by delivery of bills of lading, the lecturer passed on to a consideration of the common custom of drawing cheques on banks. This was shown to have originated wholly by custom. Its beginnings were traced back to the ancient custom of depositing goods with goldsmiths for safety, and taking from them a receipt or note, which later developed into a bank note. The payment of money fcy these goldsmiths to persons named by their customers gave origin to the cheque. The history of modern banking developments was then traced down to the present time, and the laws bearing upon deposits and payments by bankers were explained. Sir Robert then dealt at length with the laws of bankruptcy, and showed that these, too, originated wholly in mercantile custom. The laws of partnership were similarly traced to the ancient customs of traders. Summing up, Sir Robert said: “Men who are engaged in the practical work of life are ever'anxious for short cuts, for deftness, despatch, and efficiency, and when by pratice their methods are found expeditious and safe, the Legislature adopts them and makes their customs laws. One lesson the history of the origin of commercial law will teach us is that governments have done little for commerce. All that merchants have asked for is peace and freedom. It is the merchant who has brought different nations and people together, and his conquest has been one of peace. If you give the merchant security for his life and goods he will carry trade everywhere. The State’s aid he need not invoke. In these days, however, we seem to imagine that trade can be developed only by or with the aid of the State. In the days that are past that was not so. Trade was developed by the needs of mankind, and oftemgovernments prevented and discouraged instead of helping trade. Hence, it is that strong individualists like Cobden, Bright, and Spencer have said that all that traders ask is freedom. Give them freedom to trade, and trade will flourish without any adventitious aids from governments. The consideration of this subject may point out to social reformers and Legislatures that a law, to be of any value, must spring from the people. The custom must precede the law. We may have many dead laws on our statute took, some of them perhaps beneficial rules, hut they are not availed of. Why? You cannot legislate much ahead of public opinion. If a country is wholly given to gambling, for instance, no law against gambling, however salutary, could be enforced. And so it may be said of other social laws. What id needed is public opinion to make laws effective. Get that on your side, and you have got the custom with you. If you start with custom the time of the law-maker so called has arrived, and it is wonderful how the new law will be revered. Legislation follows the opinions, customs, and beliefs of the people.” After quoting and pointing out the similarity between the teachings in this respect of the ancient Chinese philosopher Laotze, and of Herbert, Spenoer, Sir Robert concluded: “Preserve equal liberty, and let the people develop. Can. a law rise higher than the people who make it? That is the question. And the consideration of this prosaic subject, the origin of commercial law—may it not teach us useful lessons in sociology if we had only the eyes to see and the minds to understand the lessons?” On the motion of Mi* J. S. Barton, a hearty rote of thanks to the lecturer was carried by acclamation.