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business in like manner bind the whole. Such was at that period, as it should seem, the custom of merchants; but it was strange to the common lawyers, and seems to have harmonised very little with the notions of the court. Yet Lord Hobart was an eminent judge; and we are to attribute his views, not to a want of sagacity, but to a steady adherence to the rigid doctrines of the common law, as to bailiffs and customs, to which the old lawyers clung with a pertinacious idolatry. The truth is, that these gentlemen were from habit and professional feeling wedded to the artificial notions of the old system, and strenuously resisted almost every innovation upon it both in Parliament and out; and every advance made in adopting the custom of merchants, until the days of Lord Mansfield, was a victory gained by the spirit of the age and the influence of commerce over professional prejudices.

And this leads us to say a few words upon the actual administration of insurance law during the days of Lord Mansfield, and of the improvements made by him. We do not know, that it can be done with more brevity than by quoting an extract from Mr Park.

'In former times,' says he, 'the whole of the case was left generally to the jury, without any minute statement from the bench of the principles of law, on which insurances were established; and as the verdicts were general, it was almost impossible to determine from the reports we now see, upon what grounds the case was decided. Nay, even if a doubt arose in point of law, and a case was reserved upon that doubt, it was afterwards argued in private at the chambers of the judge, who tried the cause, and by his single decision the parties were bound. Thus whatever his opinion might be, it was never promulgated to the world, and could never be the rule of decision in any future case. Lord Mansfield introduced a different mode of proceeding; for in his statement of the case to the jury, he enlarged upon the rules and principles of law as applicable to that case, and left it to them to make the application of those principles to the facts in evidence before them. So that if a general verdict were given, the ground on which the jury proceeded, might be more easily ascertained. Besides, if any real difficulty occurred in point of law, his lordship advised the counsel to consent to a special case, &c. &c. These cases are afterwards argued, not before the judge in private, but in open court, before all the judges of the bench, from which the record comes. Thus nice and important questions are now not

*Very much as it used to be within our early recollection in the courts of Massachusetts.

hastily and unadvisedly decided; but the parties have their case seriously considered and debated by the whole court; the decision becomes notorious to the world; it is recorded for a precedent of law arising from the facts found, and serves as a rule to guide the opinion of future judges.'

The commendation of Lord Mansfield, which this extract implies, falls very far short of his real merits. The change in the course of proceedings did much; but the genius, liberality, and extensive learning of this extraordinary man gave a new and enduring vigor to the system itself. He may be truly said to have created the commercial law of England; and during his long, active, and splendid life, it attained a maturity and perfection, which perhaps no other nation can boast, and which will transmit his name to posterity as one of the greatest benefactors of jurisprudence. The achievement was not indeed the result of his own unassisted mind. He read extensively the maritime laws of foreign countries, and with an admirable mixture of boldness, discretion, and sagacity, infused all its most valuable principles into the municipal code of England. At the distance of half a century one looks back with wonder and surprise upon the labors of this single judge. His successors have here and there added some pillars to the edifice; but the plan, the proportions, the ornaments, the substructions, all that is solid and fundamental, and attractive, belong to him, as the original architect. Standing in the temple of commercial law, the most sober jurist, while contemplating Lord Mansfield's labors, might with enthusiasm exclaim, Si monumentum quæris, circumspice. Dropping, however, figurative language, we may with plain gravity venture to suggest a doubt, whether the deviations from his doctrines, introduced by his successors, have not been inconvenient in practice and mischievous in principle. They partake too much of the subtleties and technical refinements of the common law, and stand little upon general reasoning, and those analogies, which equity and a comprehensive view of the business of commerce would commend for adoption. Lord Kenyon was an honest, intelligent, and learned magistrate; but from habit and education, and perhaps original cast of mind, he does not seem ever to have entered into the true spirit of commercial jurisprudence. He took no comprehensive principles in his range, and contented himself by adininistering the maritime law, as he

found it, without any ambition to extend its boundaries. Lord Ellenborough possessed a more powerful and vigorous mind. But his early reading beyond the walks of the common law does not seem to have been very extensive; and he manifests on many occasions a desire to bring down the maritime doctrines to the standard of the common law, rather than to give to the latter the expansion of universal jurisprudence. He was certainly a great judge, of a clear, decisive, and rapid mind, but devoted to England, and feeling little enthusiasm and less curiosity to embark in foreign studies. The times too, in which he lived, were not propitious to any extensive researches into continental jurisprudence. They were times of deep political and national struggles, when the spirit of war and conquest attempted to overturn the established doctrines of public law; and those who clung to old institutions felt, that resistance to innovation was safety, and that dangers lurked in ambush under the cover of general principles. Fortunate will it be, however, for England, if in the present peaceful times there shall be found a successor of Lord Mansfield, who breathes his liberal spirit, and fills up his splendid outline of principles.

It cannot, however, be disguised, that there is a national pride and loftiness of pretension occasionally mixed up in the character of Englishmen, which lead them, especially as public men, to look down, sometimes with contempt, but more generally with indifference, upon the usages, laws, and institutions of other countries. Nil admirari is not always a safe or useful national motto. The English bar is not exempt from this infirmity, and betrays it sometimes, when it would be more honorable to seek instruction from foreign sources. It is curious to observe, how little of foreign jurisprudence is brought into the discussions of their courts of common law (for it is far otherwise in their admiralty and civil law courts) up n topics, which seem most powerfully to demand its introduction. Even upon questions of the operation of the Lex Loci, how rarely has continental or even Scotch jurisprudence been cited with effect in these tribunals. Ireland is separated but by a narrow strait. Her jurisprudence is in substance that of England. Her most distinguished lawyers and judges have been bred in the English inns of court. In eloquence, in learning, in general ability, they are inferior to few in the

United Kingdom. Yet who ever heard the citation in an English court of an Irish decision? With the exception of a few of Lord Redesdale's, which probably owe their admittance into English society from his elevated rank in the House of Lords, we scarcely recollect any in the course of our reading. Why should they not be cited? Was Sir John Mitford, when he wrote his excellent treatise on Equity Pleadings, or held the office of Attorney General of England, superior to Lord Redesdale, when he held the seals of Ireland? Is Lord Manners less distinguished as an Irish Chancellor, than when he filled the office of a Baron of the English Exchequer ?

Perhaps it may be suggested as an apology, that the English law is of itself so vast a field, that it can scarcely be mastered, and it is unnecessary to attempt any foreign conquests; that the decisions of English judges are alone of authority, and it is unwise and impolitic to open wider inquiries, which would perplex and obstruct the already darkened and crowded avenues of professional studies. There is something plausible in such a suggestion; but it vanishes on a close examination of the subject. If the English common law were perfect in itself, and were susceptible of no improvement, it might justly refuse any foreign admixture. But no one would be so rash as to advance a pretension of this sort. The common law is gradually changing its old channels and wearing new. It has continual accessions on some sides, and in others leaves behind vast accumulations, which now serve little other purpose than to show, what were its former boundaries. What have become of the feudal tenures and the thousand questions of right and might, which formerly came home, not merely to the lords of the manors, but to every thatched cottage of the kingdom? What have become of real actions with all the complicated apparatus of proceedings, with which they so much perplexed, not to say confounded, and overwhelmed the profession? More than sixty years ago we were told, in the celebrated judgment of Taylor v. Horde, that the precise definition of what constituted a disseisin, was not then known and could not be traced in the books. And yet almost all the contests of the old law were upon questions, in which the law of disseisins was a material ingredient. What have become of the nice and curious distinctions in respect to uses

and trusts, which in Lord Coke's time and in earlier periods exercised all the ingenuity of the profession? In a practical sense they have almost disappeared, or are felt to be of little value, since the courts of equity have exerted their most salutary jurisdiction over this vast field of litigation. Where in the old law shall we find principles to adjust the innumerable questions arising in bankruptcy? Where shall we look for the doctrine of liens, of stoppage in transitu, of marshalling assets, of the execution of charities, in short, of the mass of business in which modern legal and equitable jurisdiction is employed? It is obvious, that the law must fashion itself to the wants, and in some sort, to the spirit of the age. Its stubborn rules, if they are not broken down, must bend to the demands of society. A mere written code must forever be inadequate to the business of a nation increasing in wealth and commerce, and connecting itself with the interests of all the world. A customary law, adopted in rude and barbarous times, must melt away or mix itself with the new materials of more refined ages. Human transactions are dividing and subdividing themselves into such innumerable varieties, that they cannot be adjusted or bounded by any written or positive legislation. The law, to be rational and practicable, must, as was finely said by Lord Ellenborough of the rules of evidence, expand with the exigencies of society. As new cases arise, they must be governed by new principles; and though we may not remove ancient landmarks, we must put down new ones, when the old are not safe guides, and no longer indicate the travelled road, or mark the busy shifting channels of


It is most manifest, therefore, that the English law, working, as it does, into the business of a nation crowded with commerce and manufactures, must forever be in search of equitable principles to be applied to the new combinations of circumstances, which are daily springing up to perplex its courts. In adopting new rules it is indispensable to look to public convenience, mutual equities, the course of trade, and even foreign intercourse. It is plain, that in such inquiries, the customary and positive law of foreign countries, as the result of extensive experience, must be of very great utility. No nation can be so vain as to imagine, that she possesses all wisdom and all excellence. No civilised nation is so humble

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