Merchant Courts, Arbitration, and the Politics of Commercial Litigation in the Eighteenth-Century British Empire

John Locke worried that the common law was bad for business. Although he recognized the political importance of common law institutions such as juries, he also thought that the cumbersome procedures of English courts might hamper economic development in England and its colonies. The Fundamental Constitutions of Carolina, which Locke helped draft in 1669, tried to reconcile these competing political and economic concerns. Although the Constitutions guaranteed Freemen a right to trial by jury, the document also provided for specialized judges in port towns to try cases belonging to [the] law-merchant. These commercial judges would allow merchants to settle their disputes as shall be most convenient for trade, rather than by the expensive formality of the common law.