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essential nature of the contract; The Augusta, 1 Dods. Adm. Rep. 283. Questions upon this head, notwithstanding the repeal of the usury laws, are still important with respect to the jurisdiction of the Court of Admiralty. Dr. Franck's remarks on the proof of bottomry are meagre, and do not touch the question of jurisdiction, probably because in his exposition of Jus per se he contemplated merely the abstract relations of bottomry.
Dr. Franck gives in extenso the code of bottomry adopted by the delegates of the Germanic Confederation* at Frankforton-the-Maine, in 1856. He finds a few blemishes in it, but pronounces it to be, on the whole, the very best maritime or commercial code that has been ever promulgated. He passes a severe criticism on the 684th Article, because it does not specify the essential characteristic of bottomry, viz. the risk incurred by the lender. The context, however, is a sufficient answer, we think, to this objection. We hope that the time is not far distant when, the gates of free trade having been for some time opened by all nations, they will see the expediency of adopting a single maritime code for all. The feasibility of such a desideratum cannot well be doubted, when we see a precedent set by that unwieldy body, the Germanic Confederation.
When treating of the English law of bottomry, our author gives us credit † for having been the originators of “maritime loans combined with hypothecation," by means of which the lender can enforce his claim, notwithstanding the loss of the ship. This, of course, is not bottomry, properly so called ; nor could the lender in such a transaction have formerly stipulated for more than the ordinary rate of interest. It is, therefore, only an ordinary contract, and more likely to have been first used by the Rhodians than by ourselves. Our author's commentary on the English bottomry code is, perhaps, the most valuable portion of his treatise. In this department of his labours he criticises, distinguishes, generalizes, reasons inductively and deductively, and cites authority and case with as much felicity as if his legal researches extended only to our Admiralty Reports. Only that his statements are given with a closer reference to the abstract propositions of the first part than the collocation of the divisions of his subject warrants, we think his chapters on the English law of bottomry would be found to have no inconsiderable practical value. As they stand, they are not without their value even to the practitioner.
* P. 65. * P. 191.
Bottomry is treated of by the later writers on the Roman civil law, under the head of those contracts designated in that system as real, and is found in immediate connexion with the class of contracts called mutui datio. With the exception of very few headings such as culpa, dolus, negligentia, &c., there is considerable difficulty in applying most of the rules of the civil law to the complicated transactions of modern commerce. There is, therefore, the less reason to regret that there is no very copious repertory of juristical precepts on bottomry to be extracted, howsoever indirectly, from the civil law itself.
Our author, in his chapters on the Roman code on bottomry, discusses this branch of his subject with his usual discretion and analytical vigour. He seems to think* that voluntary bottomry was the only sort used by the Greeks or Romans. But, if the Greeks had resort to loans not only for a single adventure, but also for outward and homeward voyages combined, which Dr. Franck admits, it is not likely that while their commercial speculations admitted of such complicated transactions, they had not recourse likewise to every expedient for raising money which the necessities of their commerce might require. Of the various terms found in the civil law which may be considered as referring to this class of transactions, Dr. Franck prefers the phrase “ trajectitia pecunia,” though the definition given of “ trajectitia pecunia" by Modestinus (Pandectarum,
quæ trans mare vehitur,” strongly conflicts with Dr. Franck's exposition of the phrase.“ Usure nauticæ” is,
* Pp. 341, 348.
lib. 10) as
we think, a much more appropriate and less ambiguous designation for bottomry than that preferred by Dr. Franck, and appears to us to prove conclusively that loans on bottomry were not unknown to the Romans. He considers that the Roman law has been superseded almost all over the entire continent of Europe by the express promulgation of codes by the various states. It never obtained proprio vigore in England, although it has always received from our judges the consideration it deserved. Both on the Continent, and in England, therefore, though for different reasons, the civil law is to be regarded only as such presumptive evidence of the natural law as may be displaced by even merely ratiocinative proof of its injustice or inexpediency. It is, to use a phrase of Dr. Franck's, testimony only of Jus per se, and not its authorised exposition. It cannot, indeed, be expected to throw much light upon questions of bottomry, since so learned an authority as Dr. Franck appears to have some doubt whether cases essentially resembling modern contracts of bottomry ever occurred during the sway of Rome, and, at all events, denies that any description of bottomry, except of the voluntary sort, was in vogue in ancient times. Bottomry, rei pigneratæ causâ necessaria, being, according to Dr. Franck, unknown in ancient times, few cases of any kind of bottomry used then to occur, and hence, from the resort to voluntary bottomry only, he accounts for the rule of the Roman law that the master could not raise money on bottomry without express authority to that effect. A less technical and unsubstantial reason for this rule is, we think, to be found in the comparatively narrow limits of the commerce of ancient times, and the consequent difficulty of the master's obtaining the necessary supplies except in those places where the owner of the ship had a commercial connexion.
This treatise reflects the very highest credit upon its learned author, and shows him to be possessed of a mind capable of applying the most profound principles of jurisprudence to the infinitely varied details of commerce. His exposition of Jus per se is logical, elevated, and masterly. His account
of the Roman law of bottomry, or rather of those portions of the civil law that implicitly relate to a class of contracts under which those of bottomry may be not improperly ranged, is elegant and succinct. His commentaries on this branch of the civil law ought, we think, to have immediately succeeded his disquisition on Jus per se, and so have formed a convenient medium for applying the abstract principles of the first portion of the treatise to the different codes of leading maritime states of Europe. This defect of arrangement, however, is the less important, as the civil law is very barren of any general rules admitting of a practical application to contracts on bottomry of the present day. The arrangement of the matter of this treatise is in another respect also, perhaps, somewhat faulty. It is, we think, to be regretted that the author did not first give a statement of the fundamental principles of jurisprudence applicable to the various divisions of his subject, and then show in immediate connexion with each heading in what respects the different states of Europe observed, or deviated from, the precepts of Jus per se.
It is with reluctance, however, that we notice imperfections in a work, which, on account of the scholarship, profound comprehension, and philosophic analyses exhibited by the author in every page, deserves our warmest commendation. This treatise is mainly written in Latin, the style of which constitutes no small portion of the general merit of the author.
Art. IX.—THE COLLEGE, DOCTORS' COMMONS. ON a former occasion we called our readers’ attention to the
many distinguished civilians who had adorned the old College of Doctors' Commons.* In doing so we mentioned, in passing, that the latter would ere long lose its name and application under the blow of the auctioneer's hammer. The sale of the college will be an accomplished fact in the course of the current month.
* Vol. xi. N. S. p. 265.
If this were merely the sale of a good property in the City, by a London corporation, we should not have adverted to it more than to any other alienation which occurs in the changes and chances of human affairs, when estates, after having excited admiration by their compactness and integrity, finally undergo the fatal process of disintegration.
Laudas, insane, trilibrem Mullum, in singula quem minus pulmenta necesse est. But the circumstances connected with the College of the Doctors having been so peculiar as to have induced the Legislature to convert a trust estate into a beneficial interest, we think that the story, as well of its acquisition as of its conversion, deserves commemoration in these pages. We will, therefore, show how the estate came to the Doctors, and how they acquired their present right to sell it for their own private advantage.
The facts stand thus: in 1567, Dr. Hervey, Master of Trinity Hall, Cambridge, and one of the Advocates of Doctors' Commons, purchased of the Dean and Chapter of St. Paul's, London, the lease of a ruinous building then standing on the site of the present college, and called Mountjoy House. He made a present of it to the Judges and Advocates of the Commons, and they afterwards repaired the old mansion so as to make it habitable for themselves and their wives. The Doctors thenceforth took up their abode in Mountjoy House and in the buildings which succeeded it after the Fire of London.
The lease was made to the Master and Fellows of Trinity Hall, in trust for the Doctors, for a term of ninety-nine years, to commence at the expiration of an existing lease which Dr. Hervey had also bought up. On this occasion the Dean and Chapter further covenanted that if the Master and Fellows of Trinity Hall should at any time during the before-mentioned term of ninety-nine years offer to surrender the lease, the Dean