served reproach of our Men of Business, to say that they could not comprehend laws, which were made for them, and were intelligible in themselves, and plainly stated. It seemed to me, therefore, that the time had come, in this country, for a book which no one has ever attempted to make anywhere heretofore. This book should contain all the principles of all the branches of the laws which regulate business transactions, stated with all the accuracy that care and labor could insure in any book, and so stated that any man of good capacity, with reasonable effort, might understand all of them; and might, with the help of the Index, find in the volume a true and intelligible answer to the questions which every day arise; and might, by a regular study of the whole book in course, become acquainted with the rules, and the reasons of the rules, by which all his business may be safely conducted. And this book I have endeavored to make. I have compiled it, almost wholly, from the law-books I have already made for the profession. If they are accurate and trustworthy, this is so; and I may be permitted to say, that whatever earnest endeavors could do to make those books trustworthy was done; and that accumulated testimony, which I have no right to disregard, encourages me to hope that I have not labored in this respect in vain.

I have made some changes which seemed to be required by the intended adaptation of this book to merchants and not to lawyers. These are, first, the entire omission of citations and. references to reports and authorities; next, the addition of some elementary rules and principles and definitions, which would not be necessary in a book for lawyers only; and lastly, the general omission of merely technical words, and the full explanation of such words when they are used.

If there are those who are preparing for a life of business, or are now engaged in it, who will study this volume, in course; and by study I do not mean merely the reading of it, but reading closely and attentively, dwelling on what seems most important, and examining with care what seems obscure; -I venture to hope that they will find the work so arranged, and the meaning so expressed, that what comes before explains what follows, and every part of it will be intelligible. At the same time, I have labored to make everything plain by itself,

as far as that was possible, that it might not disappoint those who, without reading it in course, look into it for an answer to questions as they arise in business. And for such persons I have endeavored to have the Index of Subjects (at the end of the book) exceedingly full and minute.

They who study the work in course may find some parts inappropriate to their pursuits. Thus, if they are not engaged in commerce, either on the ocean or our inland waters, the chapters on the Law of Shipping, and the Law of Marine Insurance, may have no especial interest for them. Other persons might omit other parts, and prefer these. But, to the best of my knowledge, I have left no topic undisposed of, which belongs within the wide circle of commercial transactions, by sea or by land, on a large or a small scale.

To the chapters on Commercial Law I have added some on Conveyances of Land, of various kinds, on Mortgages, on Leases, and on Wills.

In the Appendix I have put the most important laws of the United States respecting maritime property, and the best forms I could prepare, or procure, for a great variety of purposes, and such as are used in different parts of this country. And, as a concluding remark, I would say that this book is not calculated for one part of the country rather than another. It was not necessary to do this; for it is one of the advantages of Commercial Law, that it is substantially the same thing in all parts, not only of our widely extended country, but of nearly the whole civilized world.

I have cited no authorities in this work, because I supposed they would occupy space and increase the cost uselessly, for no one engaged in business would have the time or wish to pursue the investigation of a question of law through the Reports. If they are desired, however, they may be found collected and referred to in my other works, from which I have compiled this volume.

CHAPTER II.

OF COMMERCIAL LAW IN GENERAL.

ALL law is divided into what is called, in law-books, common law and statute law. We have legislatures, and our fathers had them; and a very large proportion of the laws now binding upon us were made by those legislatures in a formal and regular way. All these are Statutes; and taken altogether, they compose the Statute Law. Beside this, however, there is another very large portion of our law which was not enacted by our legislatures; and it is called the Common Law. In fewer words, all law was regularly enacted, or it was not. If it was, it is statute law; if it was not so enacted, it is common law.

The common law of this country consists, in the first place, of all the law of England - whether statute or common there

which was in force in this country at the time of our independence, and recognized by our courts, and which has not since been repealed or disused. And next, of all those universal usages, and all those inferences from, or applications of, established law, which courts in this country have recognized as having among us the force of law. For this common law there is no authority excepting the decisions of the courts; and we have no certain means of knowing what is or is not a part of the common law, excepting by looking for it in those decisions. Hence the value and importance of the reported decisions, which are published by official reporters in most of our States.

The courts are judicial bodies, and not legislative; that is, they are bound to declare and define and apply the law, but have no power to make it. And some have called the common law "judge-made law," as if the courts had exceeded their powers, and violated their duties, in thus "making" common law. But the objection is not a wise one; for the very necessity of a court springs from the constant need of a tribunal competent to determine what the law is; and if the determination

of this tribunal has not the force of law, it would be of no use. The legislature can always, by a statute, amend, annul, or adopt any rule of common law.

It is very important, however, that our common law should be as fixed and as definite as possible; and that is the reason, not only why nearly all decided cases are now reported and printed, but why a case once decided becomes a precedent and almost a law for all of like kind that follow. We say almost a law, for a court may make a mistake, and other courts should not be bound by it, but have the power of substituting the true doctrine. And the changes in society and in the course of business make some changes in the law necessary. Hence, however desirable stability may be, some fluctuation is inevitable. And hence the law under which we live changes from time to time, merely by the action of the courts, without the same public and authentic notice as when a new law is passed.

For example, we have in Massachusetts, as in most of the States, a statute copied substantially from an English statute, prohibiting unnecessary work or labor on Sunday. In 1813 the Supreme Court of Massachusetts held, that if a man signed a note or deed on Sunday, without sufficient cause, he was liable to punishment for this violation of law, but the instrument was valid. So the law remained until 1847. In that year the court decided that no instrument could be valid which was made in violation of law, and therefore that such a note or deed would be void. This is now the law in Massachusetts, as it is the prevailing rule elsewhere.

We have from this cause not only changes of the law, but uncertainties. In part, because questions occur in practice about which lawyers differ, and must differ, until the courts settle them; but also because different courts at the same time, or the same courts at different times, decide them in different ways.

There are still some uncertainties of this kind in the laws of business. I have not attempted to suppress or conceal them, or to give my own decision of them in the same way as if that were law. A person not a lawyer is sometimes surprised to be told that no certain answer can be given to the question he asks; and it is generally so much safer for the lawyer to say

anything else but this, for the uncertainty will often be attributed to his ignorance, that he is sometimes induced to give as law what is only his opinion. I have endeavored never to do this, and never to avoid the danger of seeming ignorant, by concealing such uncertainties. Wherever they came in my way, and seemed necessary to a full exposition of the law on any given topic, I have stated them distinctly; and wherever I thought I had sufficient grounds for a decided opinion, I have expressed it, but only as my opinion.

A very important part of the common law, especially to all men in business, is what is called, by an ancient phrase, the Law-Merchant. By this is meant the law of merchants; or, more accurately, the law of mercantile transactions; and by this again is meant all that branch of the law, and all those principles and rules, which govern mercantile transactions of any kind. This great department of the law derives its force in part from statutory enactments, but in far greater part from the well-established usages of merchants, which have been adopted, sanctioned, and confirmed by the courts. For example, a large proportion of the law of factors and brokers, most of that of shipping and of insurance, and nearly all the peculiar rules applicable to negotiable paper (or promissory notes and bills of exchange payable to order), belong distinctly to the Law-Merchant.

The courts of this country have always acknowledged that a custom of merchants, if it were proved to be so nearly universal and so long established that it must be considered that all merchants know it and make their bargains with reference to it, constitutes a part of the law-merchant. And the lawmerchant is itself a part of the common law, and therefore has the whole obligatory force of law. This would not be true, if the custom was one which violated statute law, or the obvious principles of public policy or common honesty. But we may suppose that no custom of this kind would ever be so generally adopted and established as to come before the courts with any claim for recognition as law.

There is another distinction which should also be understood. It is that between Courts of Law and Courts of Equity. In England this distinction is very great; it is less in this country,