Commercial Law, Imported and Re-exported

The American Revolution raised a broad set of legal questions for American merchants.  When Americans traded with subjects of foreign powers, which laws, rules, and principles were applicable, from what authority would American commercial law be derived, and in what venues would disputes be adjudicated? Formal treaties could solve some of the highest-level problems, but many important issues remained unresolved, and the legalistic commercial warfare of the French Revolutionary and Napoleonic Wars threw matters into further disarray.

Americans could not design their commercial law from scratch, because American merchants were embedded in international commercial communities that observed a variegated set of legal and customary practices. Moreover, when considering a thorny question, the wise American jurist consulted not only with his own nationality’s precedents, but also with jurists from overseas. This was both because law was thought to be a science, and because American ships and cargoes, venturing into the world, were subject to the rulings of foreign interpreters of commercial law whether they liked it or not.

Yet, as this paper argues, American jurists’ avowed conservatism—their dependence on, and deference to, foreign legal precedent and commercial norms—did not mean they believed American commercial law was a mere passive vessel for the laws of international merchants and foreign states. Arguing for the importance of precedents set in American courtrooms, Americans positioned themselves as exporters as well as importers of commercial law. By 1815, American jurists, merchants, marine insurers, and lawyers used legal conflicts on the ground—at the water’s edge—to set commercial affairs on a secure, practical, and logical footing. If they succeeded, their law would not only answer critical questions about where America belonged in the world, but would increase the republic’s stature as an arbiter of international affairs—a critically important role in the age of nations that was to come.