Essays upon several projects: or, effectual ways for advancing the interest of the nation.:
Defoe, Daniel, 1661?-1731.
Page  305


I Ask Pardon of the Learned Gentle|men of the Long Robe, if I do 'em any wrong in this Chapter, having no design to affront 'em; when I say, That in Matters of Debate among Merchants, when they come to be ar|gued by Lawyers at the Bar, they are strangely handled. I my self 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, Demorages, Charter-Parties, Fraights, Port-Charges, Assuran|ces, Barratries, Bottomries, Accounts Cur|rant, Accounts in Commission, and Ac|counts in Company, and the like, the Sollicitor has not been able to draw a Brief, nor the Council to understand Page  306 it: Never was Young Parson more put to it to make out his Text when he's got into the Pulpit without his Notes, than I have seen a Council at the Bar, when he wou'd make out a Cause between two Merchants: And I remember a pretty History of a parti|cular Case, by way of Instance, When two Merchants contending about a long Factorage-Account, that had all the Niceties of Merchandizing in it, and labouring on both sides to in|struct their Council, and to put them in when they were out; at last they found them make such ridiculous stuff off it, that they both threw up the Cause, and agreed to a Reference; which Reference in one Week, with|out any Charge, ended all the Di|spute, which they had spent a great deal of Money in before to no pur|pose.

Page  307 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 ill Um|pires in Causes so nice, that the very Lawyer and Judge can hardly under|stand them.

The Affairs of Merchants are ac|companied with such variety of Cir|cumstances, such new and unusual Contingences, which change and dif|fer in every Age, with a multitude of Niceties and Punctilio's; and those again altering as the Customs and Usages of Countries and States do al|ter; that it has been found impracti|cable to make any Laws that could extend to all Cases: And our Law it self does tacitly acknowledge its own Page  308 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 shou'd be heard before, and judg'd by such as by known Experience and long Practice in the Customs and Usages of Foreign Negoce, 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 allow'd in our Courts as Evidence; and the Damages are Infinite and Irretrievable by any of the Proceedings of our Laws.

Page  309 For the answering all these Circum|stances, a Court might be erected by Authority of Parliament, to be compos'd of Six Judges Commissioners, who shou'd have Power to Hear and De|cide as a Court of Equity, under the Title of, A Court-Merchant.

The Proceedings of this Court shou'd be short, the Trials spee|dy, the Fees easy, that every man might have immediate Remedy where Wrong is done: For in Trials at Law about Merchants Affairs, the Circum|stances of the Case are often such, as the long Proceedings of Courts of E|quity are more pernicious than in other Cases; because the matters to which they are generally relating, are under greater Contingences than in other cases, as Effects in hands abroad, which want Orders, Ships and Seamen Page  310 lying at Demoreage, and in Pay, and the like.

These Six Judges shou'd be chosen of the most Eminent Merchants of the Kingdom, to reside in London, and to have Power by Commission to summon a Council of Merchants, who shou'd decide all Cases on the Hearing of both Parties, with Appeal to the said Judges.

Also to delegate by Commission Petty Councils of Merchants in the most considerable Ports of the King|dom for the same purpose.

The Six Judges themselves to be on|ly Judges of Appeal; all Trials to be heard before the Council of Merchants, by Methods and Proceedings Singular and Concise.

The Council to be sworn to do Ju|stice, and to be chosen annually out of the principal Merchants of the City.

Page  311 The Proceedings here shou'd be without Delay; the Plaintiff to exhi|bit his Grievance by way of Brief, and the Defendant to give in his Answer, and a time of Hearing to be appoint|ed immediately.

The Defendant by Motion shall have liberty to put off Hearing, up|on showing good Cause; not other|wise.

At Hearing, every man to argue his own Cause, if he pleases, or in|troduce any person to do it for him.

Attestations and Protests from Fo|reign Parts, regularly procur'd, and authentickly signifi'd in due Form, to pass in Evidence; Affidavits in due Form likewise attested and done before proper Magistrates within the King's Dominions, to be allow'd as Evi|dence.

The Party griev'd may appeal to the Six Judges, before whom they shall Page  312 plead by Council, and from their Judgment to have no Appeal.

By this Method Infinite Contro|versies wou'd be avoided, and Disputes amicably ended, a multitude of present Inconveniences avoided; and Mer|chandizing-Matters wou'd in a Mer|chant-like manner be decided, by the known Customs and Methods of Trade.