Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/258

 244 //. FROM THE llOO'S TO THE 1800'S what connexion the later institution has with the Roman one, but it seems probable that the latter survived, and was modi- fied and adapted into the Bottomry of to-day. The Admiralty Court endeavoured to introduce the Civilian doctrine of a tacit hypothec of, or maritime lien upon, the ship herself for repairs or the supply of necessaries without any express Bottomry bond. Lord Stowell said : ^ "In most of those countries governed by the Civil law, repairs and neces- saries form a lien upon the ship herself. In our country the same doctrine had for a long time been held by the Maritime Courts, but after a long contest, it was finally overthrown by the Courts of Common law, and by the House of Lords in the reign of Charles II. : " and Lord Holt also, no opponent of the Civil law, held that:^ " By the Maritime law every con- tract of the master implies a hypothecation, but by the Com- mon law it is not so, unless it be so expressly agreed." Zouch suggests that Charterparties are derived, through the Roman, from the Rhodian law;^ " Si quis navem condux- erit, instrument a consignata sunto" and Malynes, who cites other Rhodian rules as in force in the Law Merchant, also says that charterparties of his time (1622) commonly de- clared that they were in all things made according to the laws of Oleron;* the provision as to the forfeiture of double earnest by the Master, "if he repent," is clearly Roman. But in this, as in most other heads of the Law Merchant, we can only speculate whether Roman customs, developed by Mediterranean nations, have furnished the groundwork on which the Courts and the merchants of England have built their Mercantile law. The law of Bills of Exchange, which owes most of its material to the Law Merchant, appears en- tirely free from Roman influence, the usages of merchants which it embodies being of much later origin. We must therefore rest content with pointing to the Law Merchant, as a probable source of Roman influence on the English law, while the lack of evidence does not allow us to estimate the amount of that influence. ^Zodiac (1825). 1 Haggard, Adm. 325.
 * Justin V. Ballam (1702). 1 Salk. 34. 2 Lord Raymond, 805.
 * p. 102.
 * pp. 98, 99.