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CHAPTER I.

STATE OF THE LAW OF MARITIME COMMERCE AMONG THE NORTHERN NATIONS, ON THEIR SETTLEMENT IN THE PROVINCES OF THE ROMAN EMPIRE.-PROGRESS OF CIVILISATION IN MODERN EUROPE.

HAVING, in the preceding observations, traced the history of the law of maritime commerce among the ancients, through the flourishing ages of Greece and Rome to the decline of the Byzantine Empire, we now turn our view westward to the European nations, and propose to trace the history of this branch of jurisprudence and legislation during what have been called the Middle Ages, and in more modern times.

"The natural progress of a people in civilisation and improvement," as observed by Dr Adam Smith, "is from the country to towns. Some of the lands of a people must have been cultivated before any considerable towns could be established; and some sort of coarse industry of the manufacturing kind must have been carried on in these towns before they could well think of employing themselves in foreign commerce."

"But," continues Dr Smith, "though this natural order of things must have taken place, in some degree, in every such society, it has in all the modern states of Europe been, in many respects, entirely inverted. The foreign commerce of some of their cities has introduced all their finer manufacture, or such as were fit for distant sale; and manufactures and foreign commerce together have given birth to the principal improvements of agriculture. The manners and customs which the nature of their original government introduced, and

which remained after that government was greatly altered, forced them into this unnatural and retrograde order."

Into the causes of this inverted order, this is not the place to inquire at length; but a short notice of them appears to be proper, in so far as they have affected the progress of maritime and commercial law.

One of the obvious effects of the successive invasions and inundations of barbarians, who overran, and afterwards settled in, the different western or European provinces of the Roman Empire, was, if not the extinction, at least the reduction and, in a great measure, the cessation of distant commercial intercourse and maritime enterprise. The moveable wealth which, from the date of the Roman Conquest, had been gradually accumulating in the western provinces, through the exercise of agricultural and manufacturing industry, was consumed or wasted by the barbarians, who had neither the habits nor the skill requisite to repair the losses they had thus occasioned. Amid the incessant wars, first between the invaders and the ancient inhabitants, and afterwards among the different tribes or nations of barbarian settlers, there was of course a great waste of human life; and a great proportion of those individuals perished who had either the capital or the skill requisite for carrying on any nice or fine manufacture, or any extensive or complicated commercial adventure. The customs, habits, and views of the barbarians were all adverse to commerce. It appeared weak and contemptible to earn by patient industry what could be at once accomplished by the sword. The only maritime enterprises were piratical expeditions to plunder the coast towns of what had once been comparatively civilized nations; and in the inland parts of Europe, the small independent territories into which the different conquering tribes divided the country, combined

with the incessant state of hostility, and the want of any great head or bond sufficiently strong to afford protection or security to individuals, either in the enjoyment of the fruits of their industry or in their intercourse with the members of the same or other tribes and nations, could not fail to impede and depress, if not to extinguish, manufacturing industry and commercial dealings. Trade was reduced, in a great measure, to the simple exchange of commodities in kind; and although the use of the precious metals, as money, did not cease, these metals were seldom found, except in the hands of the higher members of the state. In short, commerce, as has been remarked, passed from manhood and old age to infancy, and the career of improvement behoved in a great measure to be run anew.

But, on the other hand, the extinction of the former inhabitants was by no means, as has sometimes been supposed, the consequence of the conquests of the barbarous nations who ultimately settled in the European provinces of Rome. Along with the defeated Roman armies, many of the resident inhabitants of these provinces must have fallen in battle; many of them appear to have been massacred in the heat and abuse of victory; many of them appear to have been reduced into slavery ;—but such was never the fate of any one entire nation. After the completion of their conquests, the invaders had no interest or inducement to put their new subjects to death. They occupied the greatest part of the lands, and seized any moveable wealth in the towns, or where it could be found; but after the conquerors had seized, and so far exhausted, the accumulated wealth of the subjugated countries, agricultural and coarse manufacturing industry became necessary for their subsistence and the ordinary comforts of life. They thus had a strong inducement not to destroy but to profit by the labour and superior skill of their sub

jects; and that the ancient inhabitants of the southern countries of Europe, at least, continued, after the invasions and conquests, to form the largest portion of the population of these countries, is manifest from the very great preponderance of Latin vocables, roots, derivatives, and idiom, in the constitution of the Italian, French, and Spanish languages.

As little does it appear to have been an object with the northern invading nations, or to have been practicable for them, although so disposed, to transform their new Roman subjects into Goths, Franks, Burgundians, or Lombards, or to compel the former to embrace, all at once, their manners, institutions, and laws. The remains of Roman population of Italy and the provinces, though subjected by conquest, continued to exist, and to live beside their conquerors on the same territory, frequently in the same city or town. They were allowed to retain, in a great measure, their customs and laws, sometimes by tacit acquiescence, sometimes by express authority; and this gave rise to a peculiar organization of the private or civil laws of the country, and to the division of these laws into personal and territorial; the conquering race living according to the laws of their fathers, and the ancient inhabitants according to the Roman law, until the different races of population became completely amalgamated.

But although a people may have been subjected by conquest, yet, if it has ever possessed civil laws for the regulation of the private interests of individuals, these laws continue to exist and prevail in the country until they have been supplanted and replaced by other laws; and experience proves how difficult such a substitution is, how the attachment of nations to their private civil laws is often stronger than to their public or judicial institutions. Conquest may change the forms of government, and produce violent and great alterations in property,

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