LAW MERCHANT IN ENGLAND.

185

Law Merchant, appears entirely free from Roman influence, the usages of merchants which it embodies being of much later origin. We must therefore rest content with pointing to the Law Merchant, as a probable source of Roman influence on the English law, while the lack of evidence does not allow us to estimate the amount of that influence.

The position of the Law Merchant, or of "the general maritime law,” in this country has been under discussion in a series of cases, other than Svendsen v. Wallace', down to 1882. In 1801 Lord Stowell, discussing the powers of the master to give Bottomry Bonds, referred repeatedly to "the general maritime law," saying in one place"; "a very modern regulation of our own private law...has put an end to our practice of ransoming...but I am speaking of the general maritime law and practice, not superseded by private and positive regulation"; and again; “Adverting to the authority of the maritime law, as it has been for some years practised in this Court...adverting also to the position of what I may call the Lex Mercatoria3." In the Hamburg (1864), also on the conflict of laws as to bottomry, Dr Lushington announced his intention of "governing his judgment by reference to the ordinary maritime law...no specific law being alleged as the governing law"..."I must take the law which ought to apply to this case to be the maritime law as administered in England,” while the Privy Council on appeal" "entirely agree with the learned Judge that the case is to be decided by the general maritime Law as administered in England." This expression was criticized by Willes, J., in a case in 1865, where the "general maritime law, as regulating all maritime transactions between persons of different nationalities at sea," was suggested as one of the laws by which the decision should be governed; he said: "We can understand this term in the sense of the general maritime law as administered in English Courts, that

1 13 Q. B. D. 69. v. supra, p. 182 note.

2 The Gratitudine, 3 W, Rob. 240, 259.

3 Ibid. p. 271.

4 Br. and Lush, 259.

5 Ibid. 272.

6 Lloyd v. Guibert, L. R. 1 Q. B. 115, 119.

7 L. R. 1 Q. B. p 123.

186

LAW MERCHANT IN ENGLAND.

being in truth nothing more than English law, though dealt out in somewhat different measures in the Common law and Chancery Courts and in the peculiar jurisdiction of the Admiralty; but as to any other general maritime law by which we ought to adjudicate upon the rights of a subject of a country, which by the hypothesis, does not recognize its alleged rule, we were not informed what may be its authority, its limits, or its sanction" ..."It would be difficult to maintain that there is any general in the sense of universal law, binding at sea, any more than upon land, nations which either have not assented or have withdrawn their assent thereto"...and further on he speaks of "the general maritime law as administered in England, or (to avoid periphrasis) the law of England'." This series of cases came before the Court of Appeal in 1882, in a case which Sir R. Phillimore had decided by "the general maritime law as administered in England""; and in reversing his decision Brett, L. J. said: "what is the law which is administered in an English Court of Admiralty, whether English law, or that which is called the Common maritime law, which is not the law of England alone, but the law of all maritime countries... The law which is administered in the English Court of Admiralty is the English maritime law. It is not the ordinary municipal law of the country, but it is the law which the English Court of Admiralty, either by Act of Parliament, or by reiterated decisions and traditions and principles, has adopted as the English maritime law."

It is not inconsistent with these decisions that the Law Merchant is recognized whenever a special jury "finds” a custom of merchants, which is acted on by the Courts; for the law of England recognizes such customs because they comply with rules it has previously laid down, and decides that they were law as complying with its rules, and not from any merit of the Law Merchant. But in this way the usages of merchants still influence the law of England.

1 L. R. 1 Q. B. p. 125.

2 Gaetano e. Maria, L. R. 7 P. D. 1, 137.

3 Ibid. p. 4.

+ Ibid. p. 143.

CHAPTER XV.

ROMAN LAW IN THE COMMON LAW.

THE range of the English Common law is so vast, and its sources so voluminous, that we can only refer to one or two points on which Roman influences have affected it.

The English law of Bailments, and especially that part of it which treats of the liability of a common carrier, have been much discussed in relation to the Roman law. The present Master of the Rolls has said': "No one who has read Story and Sir W. Jones on Bailments, and the judgment of Lord Holt in Coggs v. Bernard2, can doubt that the Common law of England as to bailments is founded upon, though it has not exactly adopted, the Roman law. It is true that Lord Holt rests as for authority solely on Bracton; but the treatise of Bracton adopts all the divisions of the Roman law in the very words of the Roman text, and further adopts the exception of the Roman law, and the Roman reason for it...It is obvious that Bracton or English judges before him adopted into the English, the Roman law."

But this, the Roman theory of its origin, was expressly repudiated by Lord Chief Justice Cockburn, on appeal: he said3:—“it is a misapprehension to suppose that the law of England relating to the liability of common carriers was derived from the Roman law; for the law relating to it was first established by our Courts, with reference to carriers by land, on whom the Roman law imposed no liability in respect of loss, beyond that

1 Nugent v. Smith, L. R. 1 C. P. D. at p. 28.

2 2 Ld. Raymond, 909.

3 Nugent v. Smith, L. R. 1 C. P. D. : pp. 428, 430.

of other bailees for reward"; and in his view it was introduced as an exception to the more lenient English law, in the times of Elizabeth and Charles I.

With both these views Mr Holmes disagrees; he considers that the law of bailments is Teutonic, not Roman, in origin; and that the liability of carriers is not a stricter exception to the old rule, but a fragmentary survival of that rule, which has, in other parts, been mollified by time: while the changes in the old law were due partly to the introduction of the action on the case, and the assumpsit, partly to notions of public policy. All parties are agreed that Lord Holt in Coggs v. Bernard systematized and amplified Bracton, who in turn had copied the Institutes almost word for word. But it is not so clear how far Bracton or Lord Holt accurately represented the Law as it existed in their time.

The Anglo-Saxon procedure was based on the loss of possession against one's will, and was not open to the owner who had willingly parted with possession. Thus the bailee and not the bailor was the right person to sue for any wrongful dealing with a bailment; the bailee had the possessory remedies, and because he had the remedies, he was bound to sue the thief, and to hold the bailor harmless, even though, as bailee, he had committed no fault. These possessory remedies of the bailee were opposed to the Roman law1, which held the agent, borrower, ordinary bailee, hirer and usufructuary, to have only Detention and not Possession, and therefore refused them the Possessory remedies though some of them had actio furti2.

In process of time, the owner out of possession was allowed to sue the wrongdoer; but his suit against the bailee remained. The bailee had been liable because he only could sue: this reason was inverted to meet the new state of things, and it was held that the bailee could sue, because he was liable to his bailor. In Anglo-Norman law also the action to recover stolen property was based on possession, and cases in the Yearbooks show that the bailor had originally no remedy against third persons, but only against the bailee. The inverted explanation of the bailee's strict

1 Moyle, on Institutes, 1. 323.

2 Inst. Iv. 1, 13-17.

3 Bracton, f. 150, b. Holmes, p. 168.

BRACTON ON BAILMENTS.

189

liability was repeated, as thus': "If a stranger takes beasts in my custody, I shall have a writ of trespass against him.. because I am chargeable for the beasts to my bailor, who has the property"; which is analogous to the Roman reason for allowing the actio furti, to the man cujus interest rem salvam fore, because he was liable over to the owner. The bailor acquired his action against third parties, though the possessory remedies of the bailee remained, and also his absolute responsibility to the bailor, if the goods were wrongfully taken from him. Thus Glanvil says: "Sin autem res ipsa interierit vel perdita fuerit, quocunque modo in custodia tua, omnino teneris ad rationabile pretium mihi restituendum2." Bracton has copied the Institutes, but owing either to imperfect absorption of his Roman materials or corruptness of the text, he has left the matter in doubt. The passage in Bracton, side by side with the corresponding passage in Justinian, is as follows:

The first sentence in Bracton, as it stands, is consistent with Glanvil and with the old law; but it is contrary to the Institutes, and to the second quotation from Bracton, which follows the Institutes. This discrepancy has of course been noted

2 Gl. x. 13: see also x. 8. Holmes,

1 Per Hankford, J., Y. B. 11 H. IV. 23, 24. Holmes, 170. Blackstone, Com. II. 453.

p. 175.