Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/255

 7. SCRUTTON: ROMAN LAW INFLUENCE 241 all the evidence in mercantile cases was thrown together : they were left generally to a jury, and they produced no estab- lished principle. From that time we all know the great study has been to find some certain general principles. . . not only to rule the particular case then under considera- tion, but to serve as a guide for the future. Most of us have heard those principles stated, reasoned upon, enlarged and explained till we have been lost in admiration at the strength and stretch of the human understanding. And I should be sorry to find myself under a necessity of differing from Lord Mansfield, who may truly be said to be the founder of the Commercial law of this coun- try." An example of Lord Mansfield's use of the Civil law will be seen in his exposition of the nature of the equitable action for money had and received, which can be traced, pas- sage by passage, to the Corpus Juris :^ and many of these usages of the merchants, which he thus harmonized, had their origin in the Roman law though their details were of modern growth. Thus the law of General Average, as developed by the Courts, appears to rest upon a Roman foundation. Mr. McLachlan even assigns a Roman origin to the name, deriving it from actio ex aversione,"^ though this origin is challenged by Mr. Lowndes and seems rather fanciful. The Rhodian law : ^ " jSi levandae navis gratia, jactus mercium f actus est, omnium contributione sarciatur quod pro omnibus datum est,** really contains the whole principle of general average, though it restricts the example to Jettison. The Corpus Juris ex- panded it to cover other cases, such as cutting away the mast, " removendi communis periculi causa." But these laws fell into desuetude, though the practice of contribution may have survived in the Mediterranean. Some slight reference to it appears in the laws of Oleron, but the old Sea laws only recognize two cases of average, jettison and cutting awa}' ^Moses V. McFerlane, 2 Burr, 1005. 1 W. Bl. 219; see this set out in Warren's Law Studies, pp. 1353, 1354 from Evans' translation of Pothier de» Obligations, ii. 379, 380. General Average, 3rd edit., pp. 270-272. ^Dig. i^ix^f^J-^ See Lowndes, Int. pp. 45, 46. Ibid. p. 256.
 * McLachlan's Arnould on Insurance, 5th ed., pp. 882-885. Lowndes,