CHAPTER IV.

OF THE JUDGMENTS OF DAMME, OR LAWS OF WEST CAPELLE, AND OF THE CUSTOMS OF AMSTERDAM.

SECTION I.

Flanders.

IN following, historically and geographically, the progress of maritime law in modern Europe, we proceed from the western and northern coasts of France, and the southern coast of England, to the southern part of the Netherlands, or Low Countries, namely, to Flanders or Belgium.

The fertility of the soil, and the facility of interior communication by navigation, led at an early period -about the tenth century-to the establishment of great fairs in Flanders, and to the cultivation of internal commerce; and in the thirteenth and fourteenth centuries the cities of Bruges and Damme, situated near each other, carried on, from their common sea-port, Sluys, an active and extensive maritime traffic; Flanders thus becoming and serving as an intermediate station and depôt for the southern and the northern countries of Europe.

Such a state of maritime commerce, of course, required regulation, and, like the other nations of Europe, the Flemings or Belgians, before establishing regular digests of laws, appear to have been guided by customs and usages, which several writers have published from manuscripts, under the appellation of Judgments of Damme, or Laws of West Capelle. But, in establishing or recognising these usages, the Flemings appear

not to have aimed at anything new, but to have been satisfied with adopting the usages of the neighbouring nations, who had had longer experience in maritime affairs; for these usages are almost a literal copy of the first twenty-four articles of the Roles d'Oleron, the most ancient and best authenticated of that compilation.

Verwer, indeed, a Dutch merchant, in his work entitled, Nederlants See-rechten, published in 1711, and reprinted in 1736, from a mistaken zeal for the glory of his native country, pretends that the Judgments or Decisions of Damme are the more ancient and original compilation, and that the Roles d'Oleron are merely a copy. But for this patriotic pretension there is no foundation; and as no preceding writer had put forth this claim, so it appears to be discountenanced by all subsequent intelligent jurisconsults or historians, such as Van Hall, Meyer, and Schlegel; and M. Pardessus places the matter beyond dispute.

It is a matter of historical fact, that the maritime commerce of Guyenne, Bretagne, and Normandy, whose ports, products, customs, and navigation are indicated in the Roles d'Oleron, was more ancient than that of Flanders, which is admitted by Verwer himself to have flourished only at a later period. He thought, indeed, he had discovered in the manuscript of the Judgments of Damme an article not to be found in the Roles d'Oleron; but even that article exists in the manuscripts of France and England, and in the Castilian translation; and there is in the two compilations not merely a resemblance of ideas, but such a conformity of expression, with the sole difference that, in the Judgments of Damme, the name of Sluys is added to the names of the French ports mentioned in the Roles d'Oleron, and such a literal and complete similitude, that the one must necessarily be held to be the translation of the other. Besides, the compilation itself proves that it could only

be made in France, and for the coasts of France. Verwer himself remarks that all the articles relate to the navigation of the west, that is, of the sea beyond the English Channel. Indeed, the chief commerce mentioned in the compilation is in wines, which were not the produce of Flanders; and the sole measure of capacity there referred to is that of tonneaux, an expression originally peculiar to the coasts of France, and from which, as Valin observes, has been derived the practice of reckoning the burden of a vessel by tons; whereas the Flemish and Dutch reckon by the lest or last. Another article, the eighteenth, regulates the subsistence or victualling of mariners, and fixes it differently according as they belong to Bretagne or Normandy; but such a regulation could not be necessary for mariners in the Netherlands or Low Countries; and why insert, in a law made for these countries, rules solely applicable to the coasts of France, and be quite silent as to what should be done in Flanders?

It being thus clear that the Flemings borrowed the Judgments of Damme from the original twenty-four articles of the Roles d'Oleron, it remains to be inquired whether these articles were communicated to Flanders through England, or whether they were taken and received directly from France; and, from the description of the commodities, and the nature of the trade between the countries, as described in the Roles d'Oleron, it rather appears the Flemings derived them directly from France; but at what precise time the introduction took place it is not easy to determine. From the connection between the countries, it may probably have occurred soon after the Roles d'Oleron were committed to writing, in the thirteenth century, and, at all events, during the fourteenth.

The usages of Damme, whether they reached Flanders by way of England or directly from France, could not fail easily to find their way into the neighbouring

countries with which the relations of language and commerce placed that city in habitual correspondence; and it is, therefore, not surprising they should have been adopted in Zealand, where they assumed the name of the Laws of West Capelle, and were afterwards published as such by Boxhorn and Van Leuwen; and, accordingly, these articles, with the exception of one, are a literal copy of the Judgments of Damme, and consequently conformable to the Roles d'Oleron.

The knowledge of the articles of the Roles d'Oleron, thus adopted in Flanders and Zealand, was in time extended successively to the different cities on the shores of the Baltic; and they were translated into what was then the language of that country, the Low-German, which, besides, differed little from the Dutch of that time. One of those translations exists in the Dreyerian Museum of Lubec, under the title Van See-rechte. Other translations into Low-German are to be found in three manuscripts extant at Hamburgh; one dated 1469, and the others apparently of the writing of the fifteenth century. There is also a Danish translation of these twenty-four articles, combined, as in the Hamburgh manuscripts, with the maritime usages of the northern Low Countries, ascribed by the Danish historians to their kings, John, or Christian II., or Christian III. But to whichever of these princes this compilation be ascribed, it can be held to belong to him only in form, or rather in the subdivision of the articles; for, in fact, it is a literal translation, with the omission of the names of the cities, of the twenty-four articles we have been considering, and of the thirty-four articles we are next to consider.

SECTION II.

Holland.

From Flanders we proceed to the northern part of the Low Countries, or Holland, and there we find a collection of maritime usages, designated in the different manuscripts as the Customs of Amsterdam, of Enchuysen, of Stavern. Of the series of articles which compose this collection, a number are literal translations, or contain the substance, of those of the Roles d'Oleron, obviously communicated to Holland through Flanders. The greater part contain either general rules, mostly borrowed from the usages of the cities of the Baltic, or merely local regulations. The text almost exclusively designates Amsterdam and the ports of Holland; and while the articles adopted in Flanders referred principally to the navigation of the coasts of England and France, those we are now considering relate to the navigation of the Baltic and Norway.

It is not easy to determine at what precise period these usages were compiled in the state in which we now possess them; but if, according to Verwer, the compilation is to be ascribed to Holland, it is not likely to have taken place earlier than towards the middle of the fifteenth century; for Holland was much behind Flanders in commercial advancement. Indeed, the first attempts at such trade in Holland appear to have been made by the merchants of the Hanse Towns, who perceived the advantage of Holland being made an intermediate station for commerce between the north and south of Europe, in times when navigation had made so little progress, and enjoyed so little security, that people dared not sail directly from the ports of Spain or France