this work more frequently referred to than the former; they are, however, very different, and neither supersedes the other. Passing over a century, we come to another Italian legist, Casaregis; who, after many years of full practice in mercantile. cases, received the appointment of judge in the high courts of Tuscany, and held it for twenty years. His works were published after his death in four volumes, folio. The first two of these consist of two hundred and twenty-six "Discursus Legales," which cover the whole ground of commercial law, including insurance, the law of shipping, partnership, and exchange. The third volume contains an edition of the Consolato del Mare, with an ample commentary. The fourth volume is usually bound up with the third, both together being only about as large as either of the others. This last volume does not treat of commercial law, but of successions, and other analogous topics. Casaregis is a far more voluminous author than either of the preceding; and his matter is not so well arranged; certainly not so well for the mere convenience of the student. But his volumes contain a treasury of the law merchant. Scarcely any topic is omitted; and many curious questions seem to have been anticipated, and are illustrated with the combined light of learning and genius. Story said of him, "I cannot say much about this book from my own knowledge, for I have only referred to it occasionally. But rarely have I looked into his works upon any contested question, without being instructed and enlightened by the perusal." And Valin has declared emphatically, that Casaregis is incontestably the best of all maritime authors. We close this list with the name of Pothier; in some respects the greatest name of all. Born in 1699; at the age of fifty, after he had acquired the highest reputation as a jurisconsult, he accepted the office of Professor of Law in the University of Orleans, to which he was appointed by D'Aguesseau. A year before, he had begun the publication of the Pandects. In the two centuries which have followed, there have been celebrated civilians, whose almost boundless knowledge may have surpassed Pothier's. But the common consent of those of the English and American judges and lawyers, who have sought the aid of the civil law in deciding questions of the present day, has given to Pothier the credit of being the most useful and the most trustworthy of civilians. He was for some years employed in completing his edition of the Pandects. And then he poured forth in rapid succession a series of treatises upon a great variety of subjects, in which the student will find all that the most complete acquaintance with the civil law could give, but qualified, illustrated, and made thoroughly practical by an equal knowledge of the actual law of his time, and, yet more by the clearest view of the great and abiding principles of truth and justice and order, of which the rules of law must be the exponents, or be erroneous and perishable. Of these treatises, those which refer especially to commercial law, are, on obligations, in 1761; of the contracts of sale, in 1762; of bills of exchange, in 1763; of hiring, in 1764; with a supplement to this latter, in 1765, which treats of maritime hiring, and of partnership. Of the treatise on obligations, an English translation by Martin was published in 1802, and a better one by Evans, in 1806; this last has been republished in this country several times. The treatise on maritime hiring has been translated by Caleb Cushing, in 1821, and that on the contract of sale, by L. S. Cushing, in 1839. Both of these translations are excellent, and the books are in common use. Sir William Jones, in a passage in which he claims the credit of introducing Pothier to the acquaintance of his countrymen, and regards this alone as discharging his debt to the profession, says: "I seize with pleasure an opportunity of recommending Pothier's admirable treatises on all the different species of express or implied contracts to the English lawyer; exhorting him to read them again and again." 1 1 See Jones on Bailments, p. 29. In the case of Hoare v. Cazenove, 16 East, 398, Lord Ellenborough, in a decision in which he cites several continental writers who are in conflict with each other, coincides with Pothier, and says that he is " a most learned and eminent writer upon every subject connected with the law of contracts, and intimately acquainted with the law merchant in particular.” In the case of Cox v. Troy, 5 B. & Ald. 474, relating to the law of bills of exchange, Abbott, C. J., and Holroyd, J., speak of Pothier as of very high authority, and Best, J., says, "The authority of Pothier is expressly in point. That is as high as can be had, next to the decision of a court of justice in this country." And closes additional remarks in his praise, by saying, "His writings have been constantly referred to by the courts." "We cannot, therefore, have a better guide than Pothier on this subject." Byles, in the preface to his excellent work on bills and notes, says that Pothier "evinces a profound acquaintance with the principles of jurisprudence, and extraordinary acumen and sagacity in their It is undoubtedly true, that the books above mentioned are almost unknown to the great body of the profession in this country, and to some of those who stand in its front ranks. But it is quite as certain that some of those who have attained the very highest position, and who have been most useful, and have done for the law of their country a good, a great, and a permanent work, have studied these books, and from these ancient and abounding sources have drawn the principles and arguments, the rules and the reason, which have enabled them to strengthen the foundations of the jurisprudence of their countries, or incorporate in the superstructure that which will never be taken away. To speak only of the dead, and of two only of them. In 1756, Mansfield took his place upon the bench of England. Then, her commercial jurisprudence began to acquire form and regularity. He had the sagacity to see that the technical rules, and indeed the principles, of the common law, were not sufficient for the growing exigencies of British commerce. And he had the greatness to leave his own peculiar ground, and go where he could find the resources which he needed. He brought to the commercial law of England three distinct elements. One of these was his own accurate and profound knowledge of the common law. Another was the usage of merchants, which he openly adopted as a guide, and endeavored to ascertain, as well by personal inquiries among them, as by special juries composed of them, and by examination of merchants as witnesses. But he added also yet a third, and it was a diligent study and a careful consideration of those old codes and writers that we have enumerated. In Scotland, the civil law is the basis of the municipal law, as the common law is in England. Murray, afterwards application; the result of the laborious exercise of his talents on the Roman law." He adds, "There cannot be a greater proof of the surpassing merit of his works, than that, after the lapse of more than half a century, and a stupendous revolution in all the institutions of his country, many parts of his writings have been incorporated, word for word, in the New Code of France. The Traité du Contrat de Change is often cited in the English courts of law." For the estimation in which he is held in this country, I can only refer to the very frequent reference to him, not only in numerous cases, but by all our writers who look at at all to civilians and writers of continental Europe. In some of Story's works, for example, we find note after note repeating Pothier's name, through many successive pages; and frequently with expressions of the highest commendation. Lord Mansfield, was a Scotchman, and received a Scotch education, and thus became an excellent civilian. And the use he made of this knowledge was never obtruded, but never concealed. In one case,1 where the important question of freight pro rata was for the first time fully considered in an English court, he cited, from the Pandects, the laws of Rhodes, calling them "the ancientest laws in the world," the Consolato del Mare, the Laws of Oleron, from Cleirac's Us et Coustumes de la Mer, the Laws of Wisbuy, and Roccus de Navibus et Naulo, and the Ordinance of the Marine of Louis XIV. Thus, in this one case, he refers to nearly all those works which we have enumerated. Marshall, in his book on insurance, exhibits Mansfield as almost the creator of the law of insurance for England, and supposes him to have drawn much of his knowledge on this subject from the ordinance of Louis, and the commentary of Valin. I have already mentioned the name of our own Story. Placed in early life upon the bench of the supreme court of the nation, it was his fortune to be called upon to exercise the judicial functions in the infancy of our national jurisprudence. One great question met him at the beginning: What is the admiralty jurisdiction secured to the courts of the United States by the Constitution? Many, and probably a great majority, of the lawyers of this country, had no other idea of it than that which the shattered and fettered admiralty of England could give them. And, judging from all human probability, we have some right to say that, if Story had not then held that place of high authority, the admiralty jurisdiction of England at that time would have been ours at this moment. None can deny that it was he, more than any other man, who settled this question; and he was obliged to maintain his ground against obloquy and reproach which might well have shaken any man. But the great and admitted utility of the free and wide admiralty jurisdiction, actually established among us, may induce an opinion that if Story had not taken that ground, and if, at his day, and at the beginning, this question had been decided otherwise, this same jurisdiction would have vindicated itself, and by some other instrumentality been restored to the fair proportions of which it was curtailed in England in a succession of ages, by the attacks 1 Luke v. Lyde, 2 Burr. 882. of rival and victorious courts. But it may be answered, that it was only by the greatest effort and the greatest firmness that the difficult work of restoring the admiralty system to its original extent and vigor was then accomplished. If it had been delayed, this work would have been with every added year more difficult, until it became impossible. And it is to be remembered that the profession would not then have had the opportunity of judging by experience of the utility and safety of this jurisdiction. Story could not find all the true and original principles of admiralty, or of the law of shipping, in English law. He followed the lead of Mansfield, and went where they could be found; went to continental Europe; to the successive codes which in successive ages have defined that jurisdiction and built up that law, and to the many learned men who have illustrated both. But he went with a freer step than Mansfield, and a still wider research brought to him, on every point of the law merchant, still greater and more constant assistance. Story's fame does not need exaggeration nor concealment. If it be admitted that his vast and various official duties and personal undertakings, and the very extent of his inquiries, necessarily resulted in much knowledge that was only superficial, and some opinions that were erroneous, it will still always remain true, that to his sagacity, his firmness, his industry, his learning, and though last, not perhaps least, to the beautiful amenity and charming courtesy of his personal demeanor and the universal kindness which helped him so much in the many conflicts he was obliged to sustain, this country is very largely indebted for its admirable system of commercial law and commercial jurisprudence. SECTION II. OF THE ENGLISH ADJUDICATION WHICH CREATED OR DEFINED THIS LAW. It has been already intimated that the common law has welcomed and adopted the law merchant; at least, to a certain extent. It is instructive to observe the successive steps of this progress. Indeed, at the beginning, or in the early ages of the common law, |