Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/259

 7. SCRUTTON: ROMAN LAW INFLUENCE 245 The position of the Law Merchant, or of " the general maritime law," in this country has been under discussion in a series of cases, other than Svendsen v. Wallace,^ down to 1882. In 1801 Lord Stowell, discussing the powers of the master to give Bottomry Bonds, referred repeatedly to " the general maritime law," saying in one place: ^ " a very modern regulation of our own private law . . . has put an end to our practice of ransoming, . . but I am speaking of the general maritime law and practice, not superseded by private and positive regulation ; " and again : " Adverting to the authority of the maritime law, as it has been for some years practised in this Court . . . adverting also to the position of what I may call the Lex Mercatoria." ^ In the Hamburg * (1864), also on the conflict of laws as to bottomry. Dr. Lush- ington announced his intention of " governing his judgment by reference to the ordinary maritime law ... no specific law being alleged as the governing law " ..." I must take the law which ought to apply to this case to be the maritime law as administered in England," while the Privy Council on appeal ^ " entirely agree with the learned Judge that the case is to be decided by the general maritime Law as admin- istered in England." This expression was criticized by Willes, J., in a case in 1865,^ where the " general maritime law, as regulating all maritime transactions between persons of different nationalities at sea," was suggested as one of the laws by which the decision should be governed ; he said : '^ " We can understand this term in the sense of the general maritime law as administered in English Courts, that being in truth nothing more than English law, though dealt out in somewhat different measures In the Common law and Chancery Courts and in the peculiar jurisdiction of the Admiralty ; but as to any other general maritime law by which we ought to adjudicate upon the rights of a subject of a country, which by the hypothesis, does not recognize its alleged rule, we were not informed what may be its authority, its limits, or its sanc- •Zfctrf. p. 271. * Br. and Lush, 259. * Ibid. 272. •Lloyd V. Guibert, L. R. 1 Q. B. 115, 119. ^L. R. 1 Q. B. p. 123.
 * 13 Q. B. D. 69.
 * The Gratitudine, 3 W. Rob. 240, 259.