COMMERCIAL LAW.

New Zealand Times, Volume XXVII, Issue 5665, 12 August 1905, Page 9

COMMERCIAL LAW.

At tho meeting of the Wellington Accountant Students’ Society, hold in tho Chamber of Commerce on Thursday evening. Mr D. T. Stuart presiding. Sir Robert Stout delivered a lecture on

I " Tho Origin of Commercial Law.” ! Prefacing the historical aspect of the Subject with the remark that ** the lawgiver is not iho originator of law, but generally the person who first codifies .existing customs and calls them laws,’’ I the lecturer went on to compare some ! existing modern commercial laws with that which existed in Labylon 224.2 rears before our present era. Coming \,> ihe Mosaic Ten Commandments, he pointed out that they assumed the existence of private property, and the : knowledge of what constituted theft. lAs illustrating the fact that even in i New Zealand custom had preceded law, !,Sir Robert instanced more than one |case where the Courts had ruled to that ‘effect. Reviewing tho various transi.\ct ions that arc included under the ' term commercial law, lie traced many 1 of them back to the earliest historical {periods. The custom of paying by bills {of exchange was referred to the great .fairs of the Middle Ages, when it was {unsafe for traders to carry quantities of {coin. Tho interesting fact was men- | tinned that as lately as the reign of I William and Mary bills were looked upon as purely mercantile instruments, i and that persons who were not merchants could not be sued on them. .After dealing at length with the hisj torlcal development and extension of i tho custom of paying by bills and promissory and hankers’ notes, the lecturer proceeded to deal witii the growth of laws regulating the carriage of goods and insurance. It was shown that all of these had originated in commerced ns'»go and custom. Tho same was the case with the laws regarding tho sale ami pledge of goods. | S’’r Robert then referred at some length to the important work done by Lord Mansfield in the creation of commercial law in England, and said ho find mostly followed what had been de- ; cided ay the mercantile laws of the i Continent.

j The one branch of commercial law that was really modern, said the loc- \ turer, was that which dealt with Jointi stock companies. In England these I dated from 1844. It was then shown i how fcbo.se modern laws were opposed to i the policy which had been favoured in 1 England for centuries previous, during i which Joint-stock compainios were rcI garded with great disfavour. The older 1 acts hearing on trading and insurance corporations were reviewed briefly, and I the question as to thedbonefits or other- | wise of the creation of joint-stock comS panics was touched on. The opinion of the eminent Australian politician Sir | 'William MacMillan that the devotion Jof able men to the management iof commercial companies had deI Drived political life of too many upright and able men was quoted its S an example of the indirect consequences i of the system of joint stock companies. ; The analogy between the modern growth of such companies under the Joint Stock Liability Act and the development of the factory system in i place of the individual worker was pointed out. These tilings were, said i tile 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 tliis into law. Dealing similarly witli 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 hanks. This was shown to have originated wholly iby custom. Its beginnings were traced | back to the ancient custom of deposil- • ing goods with goldsmiths for safety, |and taking from them a receipt or note, j which later developed into a bank 1 note. The payment of money by these goldsmiths to persons named by their customers gave origin to the cheque. The history of modem banking develop- , ments was then traced down to the present time, arid 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 i laws of partnership were similarly traced i to the ancient customs of traders. Sumi ming up, Sir Robert said: “Men who 1 are engaged in the practical work of life i 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 1 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 conques-t 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 often governments prevented and discouraged instead of helping trade. Hence, it is that strong individualists like Cobdon. Bright, and r 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. 4'ho consideration of this subject maypoint 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 mayhave many dead laws on our statute book, some of them perhaps beneficial rules, but they are not availed of. ;.Why? You cannot legislate much j ahead of public opinion. If a country is i wholly given to gambling, for instance, no law against gambling, however salutary, could bo enforced. And so it maybe said of other social laws. What Is 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 opinj ions, customs, and beliefs of the people. ’’ I After quoting and pointing out the

i similarity between the teachings in this | respect of the ancient Chinese philoso- ! pher Laotze, and of Herbert Spencer, 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 con«itlcrat?on 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 j minds to understand the lessons?” I On the motion of Mr J. S. Parton, a hearty vote of thanks to the lecturer was carried by acclamation.