lish judicial experience. But this study of what must so far be considered the law of a foreign country, is attended with inconvenience, inasmuch as it is by no means clear to what extent that law ought to be pleaded in the Scottish courts; and not unfrequently have the rules of the English law, and the judgments of the English courts, been urged as authorities, when they were by no means applicable. It is sufficiently obvious, in general, that, when the rules of the English law proceed or are founded upon any peculiar positive statutory enactment confined in its operation to England, or any peculiar positive institution or usage in internal, political, or judicial arrangement, or otherwise, they cannot be pleaded as in any way illustrative of the law of Scotland. But to ascertain in detail what are the cases in which the judgments of the English courts are admissible, and may be relied on as authorities, and to draw exactly the line of demarcation, is a task of difficulty, requiring a good deal of experience, practical skill, and discernment; and this illustration from abroad must be made with due selection and discretion. In particular, due care must be taken to distinguish different classes of English judicial determinations as entitled to different degrees of authority in Scotland. Of one class of these judicial determinations, the object has been to fix the import and application of British statutes relative to matters of trade and navigation; and these are obviously entitled to almost as much authority and obligatory form in Scotland as the judgments of the Scottish courts. Another class of English judicial decisions, being founded on general principles, not influenced by any peculiarity in the law of England, and proceeding on extended views of commercial usage and expediency, are also entitled, even in Scotland, to all the authority which reason, and the experience of one of the most enlightened nations in the world, can bestow. Another

class of English judicial decisions are founded chiefly on peculiar legislative enactments, institutions, and local customs and usages of perhaps doubtful expediencysuch, for instance, as distinctions between the jurisdiction of the common law courts and of the Admiralty Court of England; and these, of course, can have no claim to authority in Scotland, and can afford no proper illustration of its laws.

CHAPTER XIII.

OF THE MARITIME AND COMMERCIAL LAW OF THE UNITED STATES OF AMERICA.

WE cannot close this historical sketch without noticing the progress which the great North American nation has, since the establishment of its independence, made in the cultivation of the law of maritime commerce. Of this, as of the other departments of their jurisprudence, the Americans were naturally led, from their origin, to assume the laws of England as the basis. But these laws they appear partly to have reliquished, as no longer applicable to the different or altered circumstances in which they are placed; partly to have modified and adapted to their new situation; and partly to have enlarged and amplified.

From the great similarity in the proceedings and transactions of maritime commerce, and the consequent similar, common, and general, or almost universal nature of the rules by which it is regulated, this branch of the commercial jurisprudence of the United States may have deviated less than the other branches from the law of England; but to some extent it appears to have done so ;

and partly from the more free adoption of improvements suggested by the experience of other nations. "We border," says the very learned, intelligent, and unassuming Dr Hoffman; "we border on the ocean more extensively than any other nation of ancient or modern times; our internal resources are greater; the means of transporting the products of agriculture and of manufactures, from remote interior places to the ocean, are vastly beyond anything hitherto known; from all of which we infer that maritime jurisprudence, if not already so, is destined to become, in our country, a much more extended and perfected system than yet exists. These views we cannot regard as merely prospective and anticipative. We have already done, in this country, more to fashion the elements of this branch of jurisprudence into a systematical whole than any other nation. It is true, indeed, that we have had the learned labours of the whole world at our command; but it is equally true that the nations of Europe have not reciprocally profited by what has been respectively effected by each. The United States, on the contrary, in their legislation, their judicial investigations and decisions, and in the researches of their jurisconsults, have sought for light and improvements from every source exempt from narrow jealousies, and untrammelled by the customs or by the binding force of the decisions of former days. Were the maritime or admiralty law of this country, practical as well as theoretical, carefully collected and digested, it would form, as we think, a code more free from incongruities or defects than could be extracted. from the like sources of any other country."*.

Whether the estimate which this truly useful and estimable lawyer has thus formed of the maritime and

*Course of Legal Study, by Dr Hoffman, 1836, vol. ii., p. 463,

464.

commercial law of his country may not be too favourable, we do not presume to say; but the predominance of English maritime and commercial jurisprudence in the United States is sufficiently apparent, from the number of English reports of judicial determinations, compilations, and treatises, which he enumerates and cites as authorities in his very complete and valuable course of legal study.

The navigation laws of the United States, and the other maritime and commercial legislative enactments by the Congress, which are binding on the whole of the confederated states, and peculiar to the nation, do not fall within the scope of this historical sketch of the private law of maritime commerce, any more than the peculiar laws of England or of France, relative to maritime courts and admiralty jurisdiction. And the chief improvement or enlargement which the Americans have made, in this department of jurisprudence, appears to be found in a series of judicial determinations, since the era of the national independence, by the supreme court of the United States, and the district admiralty courts. These judgments of the supreme court, in matters of maritime and commercial law, are contained in the successive reports by Cranch, Wheaton, and Peters. And the judgments of the district admiralty courts are contained in the reports by Gallison, Mason, Wheaton, and Peters.

The maritime and commercial law of the United States appears also to have been amplified and improved by the labours of distinguished lawyers; partly in giving enlarged editions of English and other treatises; partly in more original treatises of their own composition. Thus there is an edition, by Mr Justice Story, of the treatise by Abbott, Lord Tenterden, on the law of merchant ships and seamen ; an edition, by Smith, of Chitty's treatise on bills of exchange; and a translation

by Mr William Frick, of Jacobsen's Laws of the Sea, with reference to maritime commerce. There are, also, the more original and very valuable commentaries of Mr Justice Story on the law of bailments and on the conflict of laws, as well as on equity jurisdiction and on the American constitution. There are, likewise, the very valuable commentaries of Mr Chancellor Kent on American law generally, of which the second volume treats of personal rights and property, and embraces many of the doctrines of commercial law; and particu larly his commentaries on maritime and commercial law. There are Johnson's Chancery Reports, containing the decisions of Mr Chancellor Kent, than which, Dr Hoffman assures us, he knows of no other body of equity law at once so learned and elementary. There are Wheaton's Admiralty Practics, in his appendix to his Reports of Cases in the Supreme Courts of the United States, and his Digest of the Laws of Maritime Captures and Prizes; which last, however, belongs more to international law than to the private national law of maritime commerce. There are, also, the learned opinions of Judge Ware and of Dr Cooper on private maritime law and admiralty jurisdiction.

CHAP. XIV.

MARITIME LAW OF ASIATIC NATIONS.

BEFORE closing this historical sketch, we may also refer, by way of appendix, to some accounts which have more recently appeared of the maritime and commercial law of the inhabitants of Hindostan, and of the eastern coasts of Asia, and the adjacent islands in the Pacific Ocean.