- It would have

10. Of the Principal Treatises on Bills and Notes. been impossible to enter into greater detail of the distinctions and minute provisions which apply to negotiable paper, without giving undue proportion to this branch of these elementary disquisitions. The treatises and leading cases must be *125 thoroughly understood before the student can expect to

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be master of this very technical branch of commercial law; and a brief notice of the best works on the subject will serve to direct his inquiries.

The earliest English work on bills is in Malynes's Lex Mercatoria. The author was a merchant, and the work was compiled in the reign of King James I., and dedicated to the king. That part relating to bills of exchange is brief, loose, and scanty, but it contains the rules and mercantile usages then prevailing in England and other commercial countries. It was required, at that early day, that the bill should be presented for acceptance, and again for payment, with diligence, and at seasonable hours, and on proper days; and the default in each case was to be noted by a notary, and information of it sent to the drawer with all expedition, to enable him to secure himself. If the drawee would not accept, any other person was allowed to accept for the honor of the bill. Malynes takes no notice of promissory notes or checks, and he even laments that negotiable notes were unknown to the law of England.

The next English treatise on the subject was that by Marius, published in the year 1651, and that treatise has been referred to by Lord Holt and Lord Kenyon, as a very respectable

work. Marius followed the business of a notary public 126 at the Royal Exchange, in London, for twenty-four years, and he had, of course, perfect experience in all the mercantile usages of the times. His work is far more particular, formal, and exact than that of Malynes. The three days of grace were then in use; and Marius decides the very point which has been again and again decided, and even in our own courts, that if the third day of grace falls on Sunday, or a holiday, or on no day of business, the money must be demanded on the second day, and he lays down the rule of diligence in giving notice with more. severity than is consistent with the modern practice; (a) for he stated, that the notice of the default of payment must be sent off

(a) See ante, 106.

by the very first post after the bill falls due. He says, likewise, that verbal acceptances were good, and that you may accept for part, and have the bill protested for the residue. It is quite amusing to perceive that many of the points which have been litigated, or stated in our courts, within the last thirty years, are to be found in Marius; so true it is, that case after case, and point after point, on all the branches of the law, are constantly arising in the courts of justice, and discussed as doubtful or new points, merely because those who raise them are not thorough masters of their profession. (b) The next writer who treats on the subject of bills is Molloy. He was a barrister in the reign of Charles II. ; and in his extensive compilation, De Jure Maritimo, which was first published in 1676, he cast a rapid glance over the law concerning bills of exchange; but that part of his work is far inferior to the treatise of Marius.

Beawes's Lex Mercatoria Rediviva is a much superior work to that of Malynes, and it appears, by its very title, to have been intended as a substitute. It contains a full and very valuable collection of the rules and usages of law on the subject of bills of exchange. Promissory notes were then taken notice of, though they had not been so much as alluded to in the formal and didactic treatise of Marius. They were not introduced into general use until near the close of the reign of Charles II., and for this

we have the authority of Lord Holt in Buller v. Crips. (c) 127 Beawes is frequently cited in our * books as an authority on mercantile customs; and a new and enlarged edition of his work was published by Mr. Chitty, in 1813. The next work on the subject of bills and notes was by Cunningham, and it was published about the middle of the last century. It consisted chiefly of a compilation of adjudged cases, without much method and observation. It was mentioned by the English judges as a very good book; but it fell into perfect oblivion as soon as Kyd's treatise on bills and notes appeared, in the year 1790. Mr. Kyd made free use of Marius and Beawes, and he engrafted into his work the substance of all the judicial decisions down to that time. His work became, therefore, a very valuable digest to the practising lawyer, and particularly as during the times of Lord

(b) Multa ignoramus, quæ nobis non laterent si veterum lectio nobis esset familiaris. 2 Inst. 166.

(c) 6 Mod. 29.

Holt and Lord Mansfield the law concerning negotiable paper was extensively discussed and vastly improved. Mr. Bayley, afterwards a judge of the K. B., published in 1789, a little before the work of Kyd, a small manual or digest of the principles which govern the negotiability of bills and notes. As a collection of rules, expressed with sententious brevity and perfect precision, it is admirable. In a subsequent edition, he stated also the cases from which his principles were deduced. A work of more full detail and of a more scientific cast seemed to be still wanting on the subject, and that was well supplied by Mr. Chitty's treatise on bills, notes, and checks, first published in 1799. He had recourse, though in a sparing degree, to the treatise of Pothier, for illustration of the rules of this part of the general law-merchant. (a) It is obvious that a more free and liberal spirit of inquiry distinguishes the professional treatises of the present age from those of former periods. The works of Park and Marshall on Insurance, and Abbott on Shipping, and Chitty and Story on Bills, and Jones and Story on Bailment, have all been enriched by the profound and classical productions of continental Europe on commercial jurisprudence.

The treatise of Pothier on bills is finished with the same order and justness of proportion, the same comprehensiveness of plan and clearness of analysis which distinguish his other * treatises on contracts. His work is essentially a *128 commentary upon the French ordinance of 1673; and he had ample materials in the commentary of M. Jousse, and in the treatises on the same subject by Dupuy de la Serra, and by Savary, to which he frequently refers. He also cites two foreign works of learning, on the doctrine of negotiable paper, and those are Scacchaia de Commerciis et Cambio, and Heineccius's treatise, entitled Elementa Juris Cambialis. The latter work contains very full and satisfactory evidence of the professional erudition of the Germans on subjects of maritime law. (a) Heineccius refers

(a) The Treatise on Bills of Exchange, by Mr. Justice Story, which appeared since the fourth edition of this work, has copied largely from Chitty, and it is full and methodical, and executed with his masterly ability.

(a) Mr. Justice Story, in his Treatise on Bills of Exchange and Promissory Notes, has enriched his work with copious citations and illustrations drawn from Heineccius, as well as from other continental civilians; and they are undoubtedly the most elaborate and complete treatises extant on the elementary principles of the subject.

to the ordinances of various German states, and of several of the Hanse towns, relating to commercial paper, and he cites eight or ten professed German treatises on bills of exchange. (b)

It has been a frequent practice on the European continent, to reduce the law concerning bills, as well as concerning other maritime subjects, into system, by ordinance. The commercial ordinance of France, in 1673, digested the law of bills of exchange, and it was, with some alterations and amendments, incorporated into the commercial code of 1807. Since the publication of the new code, M. Pardessus has written a valuable commentary on this, as well as on other parts of the code. He writes without any parade of learning, and with the clearness, order, and severe simplicity of Pothier. There is also a clear and concise summary of the law concerning negotiable paper in M. Merlin's Répertoire de Jurisprudence, under the title of Lettre et Billet de Change. Thompson's treatise on the law of bills and notes in Scotland combines the Scotch and English law upon the subject, and is spoken of in very high terms by persons entirely competent to judge of its value. The law concerning negotiable paper has at length become a science, which can be studied with infinite advantage in the various codes, treatises, and judicial decisions; for, in them, every possible view of the doctrine, in all its branches, has been considered, its rules established, and its limitations accurately defined.

(b) See Heineccii Opera, vi. in fine.

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LECTURE XLV.

OF THE TITLE TO MERCHANT VESSELS.

THE utility of an outline of the code of maritime law must consist essentially in the precision, as well as in the perspicuity, with which its principles are illustrated by a series of positive rules. Every work on this subject will unavoidably become, in a degree, dry and minute in the detail; but it would be destitute of real value, unless it were practical in its design and application. The law concerning shipping and seamen, negotiable paper, and marine insurance, controls the most enterprising and the most busy concerns of mankind; and it consists of a system of principles and facts, in the shape of usages, regulations, and precedents, which are assimilated in the codes of all commercial nations, and are as distinguished for simplicity of design and equity of purpose as they are for the variety and minuteness of their provisions. I have wished (and I hope not entirely without success) to be able to give to the student a faithful summary of the doctrines of commercial jurisprudence, and to awaken in his breast a generous zeal to become familiar with the leading judicial decisions, and especially with the writings of those great masters in the science of maritime law whose talents and learning have enabled them to digest and adorn it.

The law of shipping may be conveniently arranged under the following general heads: 1. Of the title to vessels. 2. Of the persons employed in the navigation of merchant ships. 3. Of the contract of affreightment. This arrangement is very nearly the same with that pursued by Lord Tenterden, in his treatise on the subject, and which, after comparing it with 130 the method in which these various topics have been discussed by other writers, I do not think can be essentially improved. It has been substantially adopted by Mr. Holt, in his

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