point may be addressed to the court for the purpose of removing doubts from their minds; but then it is their duty, when they have ascertained what the general custom of merchants is, to consider that as the law of merchants, and therefore as a part of the law of the land, and to recognize it, and apply it accordingly.

It may certainly be regarded as a well-established rule of American law, that this law merchant is an integral part of our own law, equal in its force and authority to any other. But there is still another principle in regard to the law merchant, which needs a more profound recognition, a fuller development, and a more constant recollection. It is, that the law merchant is not so much a branch of our municipal law as of public law. It belongs to both; and stands in such a relation to both, that the municipal law must constantly look to the law of nations for instruction and guidance in relation to it; or, in other words, the common law of any country adopts it from the common law of the world, and must not forget its origin.

In Molloy's work, de Jure Maritimo et Navali, he says, B. 3, c. 7, s. 15: "Merchandise is so universal and extensive, that it is in a manner impossible that the municipal laws of any one realm should be sufficient for the ordering of affairs and traffic relating to merchants. The law concerning merchants is called the law merchant from its universal concern, whereof all nations do take special knowledge." And the same idea is expressed in some of the cases from which we have already quoted, where it is said that the lex mercatoria is a part of the jus gentium. This doctrine is of great practical importance. If it had been more freely admitted in English jurisprudence, their law of shipping, especially in relation to liens, would have escaped some embarrassment and some uncertainty, much of which we are free from.

This principle recommends itself so strongly, and equally on the grounds of justice and expediency, that its early and general recognition is not surprising. There is a remarkable passage in the Pandects, which we think bears strongly upon it. In the title de Lege Rhodia de Jactu, to which we have already referred, Dig. L. 14, tit. 2, § 9, occurs what we should call a case stated to the Emperor Antonine, calling for a decision. The answer is, "I, indeed, am lord of the world; but the law is (the lord) of

the sea. Whatever the Rhodian law prescribes in the premises, let that be adjudged." Here is precisely the distinction we would suggest. The imperial despotism of Rome, while asserting its absolute and universal sovereignty, acknowledges that the ancient code of the little island of Rhodes, because it had been sanctioned and established by long usages among all whose business is on the sea, must govern there. So, too, we find the later codes, of Oleron, and Wisbuy, and the Consolato, for example, made not for one state or nation, but for all; and imposed upon them, not by the authority of a sovereign right, but by the sanction of a sovereign custom.

So should it be. We may well hope, for not theory only but history begins to promise this, that the great function of commerce is to bring the nations of the world together. Of the splendor and wealth derivable from commerce, there were examples in the earliest ages, even before Tyre; but they were very limited in their influence and in their duration. In that olden time, the same word sometimes meant a stranger and an enemy. In Greece the merchant was a pirate when occasion offered. He was better than this in Rome, but commerce held no high position there. In the middle ages, it began to assert its worth and dignity, and the greatest perhaps of the Medici was too proud of his success as a merchant, to permit that any other title should be added to his name. Still more lately, commerce has grown stronger, and with its strength its good influence has grown also. And, not to pause upon illustrations which might be drawn in great numbers from intermediate history, we may well believe that the great commerce, which now bridges the Atlantic, operates powerfully, and we may hope that it will operate successfully, to preserve the peace, this peace so fertile of all good, between the old world and the new. If, in the beginning of mankind, it was much that the family gathered its members into one fold; and if it was a later step which gathered families into states, this may not be the last step. The reasonable, as well as the hopeful, must be permitted to regard it as within the wide circle of possibility, that all states and nations may be gathered into one brotherhood of man. And if this dream, perhaps it may be called should ever become fact, assuredly commerce will be one of the most potent of the instruments by which so great a good shall be wrought.

The commerce of the world has reached at this moment an enormous development. It may well seem to us that it can go no further; that it stands on its culminating point. But it is more probable that the future will regard only as the beginning, that which may seem to us a consummation. Assuredly the growth and extension of commerce, its conformity with the essential principles of justice and of reason, and with the needs and the progress of mankind, and, indeed, all its prosperity and all its utility, from the highest to the lowest ground, will be advanced by constantly regarding the laws of commerce as intended to be universal; and, therefore, by respecting what in them is universal, in preference to that which is local and limited, and by giving to all questions that answer which shall make the principle or precedent resulting from it conform most perfectly with those which the nations have already settled by a general usage.

That the common law has already done this to a very great degree, and that it has not done this perfectly, has been already intimated. And it may not be out of place to close this sketch of the history of the laws of commerce, with the hope, that it may be one of the effects of the established freedom of this country that we may set such an example of wide and farreaching sagacity in our shaping of the laws of commerce, that the nations of the world may join with us effectually in making the law merchant the law of the whole world.

CHAPTER II.

OF THE REGISTRY AND NAVIGATION LAWS.

SECTION I.

OF THE HISTORY OF THE REGISTRY ACTS.

We have seen in the preceding chapter, that the common law of England, from which that of America is derived, was formed while the great mass of valuable property consisted of land, and things fixed to the land. Negotiable choses in action and all those interests, represented and transferred by means of certificates and scrip, were either unknown or little used; and movables, or personal property in possession, constituted but a small portion of the wealth of the country. Hence the law of personal property is of comparatively recent origin; and only of late has it assumed that systematic and scientific form which now belongs to it.

Between these two, -the law of real property, and the law of personal property, and differing in some particulars from both, is the law of shipping. That a ship is personal property, and not real property, is certain; but it is a very peculiar kind. of property, both in fact and in contemplation of law; and this was true in very ancient systems of law,2 although neither commerce nor its great instrument, the merchant ship, had then reached any thing like the importance and magnitude they have now attained.

We have said the ship is the great instrument of commerce; and as England, from its insular, and otherwise favorable position, found its commerce becoming one of the most important sources of its power and prosperity, the laws we have mentioned

1 Roccus, note xxxviii.; Jacobsen's Sea Laws, 21.

2 See Jacobsen's Sea Laws, ut supra.

in the previous chapter were enacted some centuries ago, providing, with great precision, for the nationality of the ship, and the trustworthiness and preservation of the evidence of that nationality. These laws are usually called The Registry and Navigation Laws. It is said that they originated in their present form some two hundred and fifty years ago, in the desire of Spain to preserve for herself the valuable cominerce of her colonies in America. In England, they may be regarded as beginning substantially with the 12 Car. 2, c. 18.2

The principal purpose of this and subsequent statutes was to prevent other nations from having the carrying trade between England and her colonies, and between other countries and England; and it was therefore provided, that only British ships should carry merchandise between England and her colonies, and that no merchandise should be brought from foreign countries to the British dominions, except by British vessels, or the vessels of the countries, of which the goods imported were the growth. No vessel was to be deemed British, unless wholly built somewhere in the British dominions, excepting only those condemned and sold as prize; and if a British ship became by any sale the property of an alien, it could not afterwards become a British ship again, by resale to a British subject.5

In order to secure to British ships these advantages, and to the British nation this monopoly, an exact and almost severe system of registration was adopted, and has remained in force, with but little change, for nearly two centuries. In 1850, how

1 Reeves's History of the Law of Shipping, p. 35. See also 2 Browne's Civil and Admiralty Law, p. 125.

2 The first statute passed for the benefit of navigation was the 42 Ed. 3, which enacted that all ships of England and Gascoigne which came into Gascoigne should be first freighted to bring wines into England before all other. This being, however, of but little importance, the statute of 5 Rich. 2, St. 1, c. 3, which provided that none of the king's subjects should thenceforth ship any merchandise in going out or coming within the realm of England, except in English ships, under penalty of forfeiting the merchandise or the value of it, has been considered as the primary one. Stat. of 6 Rich. 2, c. 8, enacted that this law should only apply, "as long as ships of the said liegeance were to be found able and sufficient in the parts where the merchants happened to dwell." For various subsequent statutes on this subject, prior to Stat. 12 Car. 2, c. 18, see the valuable treatise of Mr. Reeves on the History of the Law of Shipping. 3 12 Car. 2, c. 18, § 1.

4 13 & 14 Car. 2, c. 11, § 7.

3 & 4 Will. 4, c. 55, § 9.