Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/256

 242 //. FROM THE llOO'S TO THE 1800'S a mast. The first express definition of " commune avarie " appears in the Guidon de la Mer, about 1560: ^ and a fuller one is found in the French Ordonnance of 1681. In 1801 a Court of Common law first recognizes and discusses the right to recover at Common law general average contributions.^ Lawrence, J. defines a general average loss as " all loss which arises in consequence of extraordinary sacrifices made, or ex- penses incurred, for the preservation of the ship and cargo," and this " must be borne proportionably by all who are inter- ested." ^ Since then the law on the subject, probably founded on the Rhodian and Roman law, and expanded by mercantile usage in all countries, is still undergoing development in the Courts ; ^ though in the last reported case, the Master of the Rolls rejected the idea that the law of England should be brought into consonance with the laws of all other countries ; " no English Court has any mission to adapt the law of Eng- land to the laws of other countries ; it has only authority to declare what the law of England is." ^ But the law of Eng- land on these points was originally the Law Merchant, the same in all commercial countries ; and the agreement of all foreign countries in a rule of the Law Merchant would then have been evidence of its being part of the law of England, or rather of a Code which the English Courts would recognize and enforce. Lord Mansfield's greatest work was done in the develop- ment of the law of Insurance ; and here, though he gave form and coherence to the Law Merchant, it does not seem that that law can be traced to Roman sources. Its Roman origin has indeed been suggested; Zouch, for example, says:^ " Policies of Insurance are grounded upon the Civil law . . . which as Malynes aflirms were taken up in this kingdom from the laws of Oleron : " but the most recent authorities hold ' Lowndes, 275. 'Birkley v. Presgrave, 1 East, 228. Lowndes, pp. 1, 276; Int. p. 49. jnage souffert, pour le bien et le salut commun des marchandises et du vaisseau sont avaries grosses et communes. 62, Svendsen v. Wallace, 11 Q. B. D. 616, 13 Q. B. D. 69. 10 App. C. "404. • 18 Q. B. D. 73. • p. 108.
 * cf. the Ordonnance; let despenses extraordinaires faites, et le dom-
 * cf. A twood V. Sellar, 5 Q. B. D, 286, Wright v. Marwood, 7 Q. B. D.