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Authority of laws and ordinances of foreign states.

Authority of commentaries on foreignlaws..

usage which is not general is not binding upon persons not acquainted with it (a).

The codes, laws, and ordinances of other states, ancient or modern, are received with great respect by the Courts, not as containing any authority in themselves in this country, but as evidences of the general law merchant. Where these are contradicted by judicial decisions they cease to have any value, but on points which have not been decided they are worthy of great consideration The ordinances and laws more generally quoted are the Rhodian Law, or the Jus Navale Rhodiorum, the Consolato del Mare, the Laws of Oléron, the Hanseatic Ordinances, the Guidon de la Mer, the Ordonnances de la Marine et du Commerce of Louis XIV. by Colbert, and more especially the modern Foreign Civil Codes and Codes of Commerce (b).

Commentaries on such ordinances and laws, such as Valin on the Ordonnance de la Marine, Emerigon on Insurance, the works of Pothier and Pardessus, those of Story and Kent on American law, are also treated with great respect in the British Courts (c).

State of commercial laws.

SECTION II.

COMMERCIAL LAWS OF THE BRITISH EMPIRE.

The commercial law of England does not stretch its influence over the various states, colonies, and dependencies which form the British Empire. Within the United Kingdom itself Scotland and England have never realised perfect unity of legislation; and though the Anglo-Saxon family has carried its own common laws wherever it has planted itself, not a few vast dominions have been added to the Empire which have been allowed to retain as their substantive law the law which they possessed at the time of their conquest, modified only by English jurisprudence and practice. Still, as compared with other branches of municipal law, the commercial laws of the British

(a) Sweeting v. Pearce, 29 L. J. C. P. 265; Scott v. Irving, 1 B. & Ad. 605; Partridge v. The Bank of England, 9 Q. B. 396.

(b) Morgan v. The Insurance Company of North America, 4 Dallas, 424; Gould v. Oliver, 4 Bingham, N. C. 134. (c) Cox v. Troy, 5 B. & Ald. 481.

Empire exhibit but few points of discrepancy.

Resulting as

we have already seen from general customs of trade, and embodying those principles which are conformable to the dictates of natural equity and justice, such laws are, at least in the main, alike in every portion of the Empire.

UNITED KINGDOM.

England and Wales.-The commercial laws of England and Wales are identical. When Wales was united to England by a Statute of Henry VIII., it was prescribed that the law of England and no other shall be used in Wales.

Ireland.-In Ireland also the English commercial law is generally in force, the Irish nation having received the English law at the Council of Lismore; but there are not a few points of difference between the commercial laws of England and Ireland, arising from the existence of some laws of the Irish Parliament never repealed by the British, as well as from the method still pursued of legislating separately for the different portions of the United Kingdom.

Laws of Engidentical.

land and Wales

Laws in Ireland and Eng

land different on some points.

of Scotland different from

that of Eng

land and Ire

land.

Scotland. The commercial law of England, as far as it Municipal law forms part of the municipal law, has no force in Scotland. The Treaty of Union of 1706 expressly provided that the laws of Scotland shall remain in force, and that laws relating to private rights are not to be altered but for the evident utility of the people of Scotland. Two statutes (a) have been recently enacted assimilating various points of commercial law in England, Ireland, and Scotland.

Isle of Man, Jersey, Guernsey, &c.-The Commercial law of England is not in force in the Isle of Man, the island not being governed by the English law, though by several recent statutes she has been made part of the United Kingdom. The Islands of Jersey, Guernsey, Sark, and Alderney, formerly parts of the Duchy of Normandy, are governed by the common law of the Duchy of Normandy, the principal authority for which is "Le Grand Coustumier." In all these places, however, the English law is always received, if not with the authority of law, with the respect due to the universality of its character and to the judgments of English tribunals.

(a) 19 & 20 Vict. c. 97; 19 & 20 Vict. c. 60.

Le Grand Cous

tumier in Jersey, &c.

State of com

British colo

COLONIES AND DEPENDENCIES.

The British colonies and dependencies may be divided into mercial laws in two classes; those which were found and colonised by British subjects, and those which were conquered by, capitulated, or ceded to the British Government.

nies.

Colonies acquired by discovery and occupation.

Colonies acquired by conquest.

The Roman-
Dutch law
in British
Guiana.

Spanish law in Trinidad.

In colonies found and colonised by British subjects or acquired by discovery and occupation, the law of England came at once into force as far as it was applicable to the condition of the infant colonies, but Acts of Parliament made in the United Kingdom after their acquisition, without naming the colonies, are not binding upon them. The laws of such colonies are therefore the common law of England, certain parts of the statutes of the United Kingdom, and the enactments of their own legislatures. To this class belong Barbadoes, Bahamas, Bermuda, Antigua, Jamaica, Tortola, New Brunswick, St. Christopher's and Nevis, British Columbia, Anguilla, Dominica, Granada, St. Vincent, Tobago, and Upper Canada in America; Sierra Leone in Africa; also Western and Southern Australia, New South Wales, and Van Diemen's Land.

Colonies which were conquered by, or capitulated, or ceded to Britain became by right of conquest subject to the law of England; nevertheless, until such law is imposed upon them they are allowed to retain their own laws in all matters which are not contrary to our religion, or which enact anything which is malum in se. In this class are included British Guiana, the Cape of Good Hope, and Ceylon, capitulated by the Dutch; Trinidad, capitulated by the Spaniards; St. Lucia, Lower Canada, and Mauritius, ceded by the French; Malta; and the Great Indian Empire. The laws of these colonies are as follow:

British Guiana.-The law in force in this colony, as guaranteed by the articles of capitulation when she surrendered to Her Majesty's arms, is the Roman-Dutch law, or the old law of Holland and the Roman law in subsidium.

Trinidad. The law in force here is the law of Spain, not the modern code, but the ancient law founded on the Fuero Real, the Pardidos, the Recopitacion, and the ordinance of Bilboa. The ancient Spanish law and the Roman law, as its auxiliary in cases where the former is defective, may be con

sidered as the common law of the colony, and is binding in all cases not otherwise especially provided for by English laws and statutes. St. Lucia. The ancient law of France as it existed prior to the promulgation of the Code Napoléon is in force here. The old laws proceed from two different sources or authorities. Those which emanated from the government at home, viz., the Code Novi of 1685, the Edict of 1786, and the Local Ordinances. The English law is constantly referred to by the Courts of Justice.

Old French

law in St.

Lucia.

French laws

Lower Canada.-The laws of this colony are the Acts of English and the British Government which extend to the colonies and in Lower the laws of France as they existed at the conquest of Canada in 1759.

Canada.

Mauritius.-This colony has received four of the five French Codes codes of France, viz., the Civil Code, the Code of Civil Proce- in Mauritius. dure, the Code of Commerce, and the Code of Criminal Instruction. But the principles of English jurisprudence are continually engrafted on the French law.

Malta.-A Civil and a Commercial Code have recently been Civil and Comenacted in Malta.

British India.-The Mohammedan law is in force in all the countries which were subject to the Mogul Emperors. The Hindoo law is in force in all the territories which were never brought under that subjection. The Parsees are subject to the English law as far as it is applicable to them, and the Portuguese and other European races are subject to their respective European laws. The British population, or Anglo-Indians, are subject to the common law of England and to the laws and ordinances of the Legislative Council of India.

mercial Codes in Malta.

Mohammedan and Hindoo

laws in force.

SECTION III.

COMMERCIAL LAWS OF FOREIGN COUNTRIES.

France. The commercial laws of France consist of the Code of Commerce of 1808, modified by subsequent laws, of such provisions of the civil and other codes as are applicable to trade, of the principles of common law, and of the usages of trade. The Code Napoléon abolished the Roman law, and all customs, statutes, and regulations previously in force upon subjects treated

French laws of commerce.

Laws in the
United States
founded on
British laws.

New German code.

Austrian laws of commerce.

by the code. It was enacted in Guiana, Bourbon, Guadaloupe, Martinique, and the French establishments in India, in St. Pierre and in Algeria, but in this latter colony the Mussulman law is still applied to the Mohammedan population.

United States of America.-The United States of America being originally founded by British subjects, who constituted the North American Colonies, have their commercial laws based on the law of England. But with the declaration of independence, and with the enormous increase in commerce and prosperity, the general laws of the country acquired enormous proportions, whilst each State has found it necessary to establish special laws and statutes, which have modified the original laws, and in many cases substituted other laws in their stead. English laws are not valid as such in the United States, but they must be sanctioned by legislative enactment, or introduced by a court as an exposition of principles common to the two nations. Each State has a separate commercial legislation, but the decisions of the different Courts are held in great and almost equal authority over all the States.

Germany. A code of commercial law has just been completed for the whole of Germany, by a commission appointed by the Diet. Although the same has not yet the force of law, as it must be first enacted by each state, we insert it with confidence, since it has already received the sanction of the commercial classes generally. The German common law is composed of rules taken from the ancient German customs, and from compilations of local customs, canon law, Roman law, and special laws. In States where the law is codified, the German common law serves to interpret the codes, and to regulate the points not treated by them, and in States which have no code it is applied in all cases as a basis of the local and general law of the empire.

Austria. The commercial legislation of Austria is traced to the time of Maria Theresa, who, in 1756, published an ordinance on matters connected with commerce. The law of bankruptcy is equally due to the care of Maria Theresa, although it was not promulgated before the reign of Joseph II. The maritime legislation of Austria dates 1774. The Editto Politico di Navigazione Mercantile Austriaca embraces the most extensive provisions as regards captains and seamen. But Austria has adopted the new commercial code just prepared for

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