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The ship which violates a blockade may be confiscated on her return, and if she be taken in any part of the voyage, she is taken in delicto, and is subject to confiscation. The offence is not extinguished till the vessel has reached her own port (a). In all cases, however, whether of breach of blockade or of contraband of war, it is the duty of the cruiser to take the ship to a Court of Prizes for adjudication. Captors have a right to seize, but subject to the duty of bringing the vessel to adjudication.

By the law of nations the adjudication of all prizes vests in Court of prizes. the admiralty court, which is constituted a Court of Prizes, or

a tribunal of nations (6), and from that court an appeal lies to the Privy Council. It is the object of the prize court to sus→ pend the property till condemnation, to punish every sort of misbehaviour in the captor, to restore the property instantly, if, upon the most summary examination, there does not appear a sufficient ground of seizure, and to condemn finally if the goods really are prize, after having given all parties a fair opportunity of being heard. The Court of Prizes is a court of the law of nations, and it is the duty of the judge in a prize court to administer the law of nations, or that law which is common to all countries, and founded on principles of universal obligation. The principal sources of the law of nations are natural and divine law, the reason of the thing, customs and conventions. Considerable authority moreover attaches to the works of learned authors on the subject, such as Grotius, "De Jure Belli et Pacis," Puffendorfius, "De Jure Naturæ et Gentium," Bynkershoek, "Quæstiones Juris Publici," "Wolfius Opera," Marten's "Précis du Droit des Gens," Vattel's "Droit des Gens," Wheaton's "Elements of International Law," Dr. Phillimore's" International Law," &c.

law.

The science of international law has, in late years, made rapid Progress of progress. The relations between nations are now maintained international by means of permanent legations. The sea is universally admitted as absolutely free. The navigation of the principal rivers is no longer intercepted by dues. By the conferences of Paris of 1856 the vexatious questions of privateers, blockades,

(a) The Welvaart van Pillan, 2 Rob. 128; The Juffrow Maria Shraeder, 3

Rob. 153.

(b) The Recovery, 6 Rob. 348.

and rights of neutrals, were definitively settled. And many nations, previously out of the influence of international law, have placed themselves under its protection. These are, doubtless, sources of satisfaction, and they are the harbingers, we trust, of still further progress and improvement. Nations are becoming more and more bound to each other by ties of interest, friendship, and family relationship. The great transactions of nations, the mightiest works of human skill and energy, are becoming international in their origin, operation, and ownership. Periodical exhibitions are organised for the display of the works of art and industry, and for the encouragement and development of mechanical skill and genius, open without distinction to artists and artizans of all nations. And by the introduction of freedom of trade, the abolition of the navigation laws, the cheapening of the postage of letters, the extension of railways, and the establishment of land and sub-marine telegraphs, commercial and social intercommunication has acquired an unprecedented extension. These are material manifestations of the great progress of mankind in civilisation and science, and even in love and well-doing. Let us hope that the occasional clouds which still hang over our horizon will one after another dissipate, and that the benignant rays of religion, knowledge, commerce, and peace, may be allowed to shine in all the splendour of a permanent meridian.

PRINCIPLES

OF

BRITISH AND FOREIGN COMMERCIAL LAW.

CHAPTER I.

SECTION I.

SOURCES OF COMMERCIAL LAW.

BRITISH COMMERCIAL LAW is a system of principles and rules, What is Compartly of common and partly of statute law, which define the mercial Law. rights and duties of individuals engaged in commerce. Such principles and rules are in a great measure derived from the customs of merchants, some of which are of a universal character, and some of a purely local nature. Those customs of trade which are innocent in themselves and which prevail throughout the country, are held to be part of the law of the land, and are judicially noticed without proof; those of a purely local nature must be proved (a).

That a local custom of trade may be rendered compulsory, it must be the result of a general and prevailing course of business, proved by instances, and supported by the evidence of the general opinion of merchants. It must, moreover, be fair, proper, and reasonable, as well as sufficiently definite and certain (b). When a general usage has been judicially ascertained and established, it becomes part of the law merchant, which Courts of Justice are bound to know and recognise (c). An

(a) Benson v. Chapman, 8 C. B. 967. Broom's Common Law, p. 19. (b) Cunningham v. Fonblanque, '6 C. & P. 44; Vallezio v. Wheeler, Lofft, 631; Camden v. Cowley, 1 W. B. 417; Hall v. Benson, 7 C. & P.

VOL. I.

911; Cuthbert v. Cumming, 11 Exch.
405;
Paxton v. Courtney, 2 Fost. &
Finlay, 131.

(c) Brandao v. Barnett, 3 C. B. 519,
530; Jones v. Peppercorne, 28 L. J. Ch.
158.

B

Customs of trade, general and special.

Authority of laws and ordinances of foreign states.

Authority of commentaries on foreign laws.

usage which is not general is not binding upon persons not acquainted with it (a).

The codes, laws, and ordinances of other states, ancient or modern, are received with great respect by the Courts, not as containing any authority in themselves in this country, but as evidences of the general law merchant. Where these are contradicted by judicial decisions they cease to have any value, but on points which have not been decided they are worthy of great consideration. The ordinances and laws more generally quoted are the Rhodian Law, or the Jus Navale Rhodiorum, the Consolato del Mare, the Laws of Oléron, the Hanseatic Ordinances, the Guidon de la Mer, the Ordonnances de la Marine et du Commerce of Louis XIV. by Colbert, and more especially the modern Foreign Civil Codes and Codes of Commerce (b).

Commentaries on such ordinances and laws, such as Valin on the Ordonnance de la Marine, Emerigon on Insurance, the works of Pothier and Pardessus, those of Story and Kent on American law, are also treated with great respect in the British Courts (c).

State of commercial laws.

SECTION II.

COMMERCIAL LAWS OF THE BRITISH EMPIRE.

The commercial law of England does not stretch its influence over the various states, colonies, and dependencies which form the British Empire. Within the United Kingdom itself Scotland and England have never realised perfect unity of legislation; and though the Anglo-Saxon family has carried its own common laws wherever it has planted itself, not a few vast dominions have been added to the Empire which have been allowed to retain as their substantive law the law which they possessed at the time of their conquest, modified only by English jurisprudence and practice. Still, as compared with other branches of municipal law, the commercial laws of the British

(a) Sweeting v. Pearce, 29 L. J. C. P. 265; Scott v. Irving, 1 B. & Ad. 605; Partridge v. The Bank of England, 9 Q. B. 396.

(b) Morgan v. The Insurance Company of North America, 4 Dallas, 424; Gould v. Oliver, 4 Bingham, N. C. 134. (c) Cox v. Troy, 5 B. & Ald. 481.

Empire exhibit but few points of discrepancy. Resulting as we have already seen from general customs of trade, and embodying those principles which are conformable to the dictates of natural equity and justice, such laws are, at least in the main, alike in every portion of the Empire.

UNITED KINGDOM.

England and Wales.-The commercial laws of England and Wales are identical. When Wales was united to England by a Statute of Henry VIII., it was prescribed that the law of England and no other shall be used in Wales.

Ireland. In Ireland also the English commercial law is generally in force, the Irish nation having received the English law at the Council of Lismore; but there are not a few points of difference between the commercial laws of England and Ireland, arising from the existence of some laws of the Irish Parliament never repealed by the British, as well as from the method still pursued of legislating separately for the different portions of the United Kingdom.

Laws of Engidentical.

land and Wales

Laws in Ireland and Eng

land different

on some
points.

of Scotland different from

that of Eng

land and Ire

land.

Scotland. The commercial law of England, as far as it Municipal law forms part of the municipal law, has no force in Scotland. The Treaty of Union of 1706 expressly provided that the laws of Scotland shall remain in force, and that laws relating to private rights are not to be altered but for the evident utility of the people of Scotland. Two statutes (a) have been recently enacted assimilating various points of commercial law in England, Ireland, and Scotland.

Isle of Man, Jersey, Guernsey, &c.-The Commercial law of England is not in force in the Isle of Man, the island not being governed by the English law, though by several recent statutes she has been made part of the United Kingdom. The Islands of Jersey, Guernsey, Sark, and Alderney, formerly parts of the Duchy of Normandy, are governed by the common law of the Duchy of Normandy, the principal authority for which is "Le Grand Coustumier." In all these places, however, the English law is always received, if not with the authority of law, with the respect due to the universality of its character and to the judgments of English tribunals.

(a) 19 & 20 Vict. c. 97; 19 & 20 Vict. c. 60.

Le Grand Cous-
Jersey, &c.

tumier in

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