CHAPTER I.

OF THE LAW OF MARITIME COMMERCE, IN RELATION TO THE OTHER BRANCHES OF COERCIVE LAW.

THE law of maritime commerce has been very frequently described as a branch of the law of nations; but, for understanding distinctly what are its proper sphere and limits, and its relation to the other departments of jurisprudence, it may be of use to mark its position under or among the great divisions of human law, primary and subordinate.

As the powers of man, corporeal and mental, are very limited, and adapted to the limited circumstances in which he is placed on earth, and as the habitable parts of this globe are divided and separated by mountains, rivers, and seas, mankind have, from the earliest times, been divided into separate communities, tribes, or nations, forming independent states. And the first grand division of law, therefore, is into national, comprehending the whole internal law of a state, private and public, or constitutional; and into international, formerly more loosely called the law of nations, or, in the modern acceptation of the terms, Jus gentium, comprehending the external law of independent states in relation to each other, as regulat

ing the intercourse of these different states in their corporate capacity, and likewise of their respective subjects.

Now, maritime commerce, it is plain, may be carried on, and is, indeed, very frequently carried on, between the subjects of different states; and it may, especially in time of war, involve questions affecting the reciprocal rights and obligations of these independent states and of their subjects such as the questions, Whether the neutrality of the vessel covers the cargo? and, Whether the hostility of the vessel confiscates the cargo? discussed in one of the oldest of the modern codes of maritime law, denominated the "Consolato del Mare." And, where maritime commerce gives rise to such questions, involving the reciprocal rights and obligations of independent nations, the law determining such questions clearly forms a branch of the law of nations, or rather of what has been recently more correctly denominated international law, and was, for a considerable period previously, distinguished as Jus maritimum publicum, aut gentium. But the law of maritime commerce, of which it is now proposed to take an historical view, although it has likewise been described, both in ancient and in modern times, as a branch of the law of nations, does not involve any international questions, or discuss the reciprocal rights and obligations of the governments and subjects of independent states, in relation to each other. It is a branch of the internal law of maritime states; derives its authority and sanction from the supreme power in these states; and has, more recently, and by some jurists, been termed Jus maritimum privatum, in contradistinction to Jus maritimum publicum, aut gentium.

Still, however, not merely the older continental jurists, such as Stypmannus and Loccenius, but also the

more modern, such as Emerigon, Capmany, Jorio, and Piantanida, talk very generally of a Jus maritimum universale, of there being something universal in the laws of maritime commerce.

In England too, one of the ablest commercial judges of that or any other country, Lord Mansfield, stated judicially, that "the maritime law is not the law of a particular country, but the general law of nations." And the same view appears to have been entertained by English lawyers generally, such as Molloy, Blackstone, Park, and Marshall. A little further inquiry, therefore, and explanatory discrimination of terms, appear to be requisite.

In the reciprocal exchange of superfluous commodities, whether these commodities be the spontaneous or cultivated produce of the soil, or have been adapted by art to human use and convenience, men, in all countries, are placed in nearly similar or analogous circumstances, and are consequently led to adopt similar or analogous habits of action and rules of conduct. In the tenure by which land is held among different nations, and in the mode by which property of that description is transmitted from generation to generation, we perceive the pervading influence of local customs and peculiar habits; but in the dealings of merchants, there is little room for singularity of institution. The intercourse between the inhabitants of different countries, for the purpose of supplying their mutual wants, is adverse to anything local or peculiar. Expediency obviously requires that, in all countries, commercial transactions should be regulated by the same, or, at least, by similar or analogous rules; and, accordingly, in this department of jurisprudence, we observe a greater similarity of usage and institution than perhaps in any of the other arrangements which are formed in the progress of civil society.

But although, from its general nature, and from its rules being used and observed in common by the inhabitants of different countries, maritime and commercial law has been and may be considered as a branch of the jus gentium, in the sense in which that phrase was used by the Roman lawyers, as denoting the system of rules by which men, as rational beings, and as distinguished from the lower animals, regulate, or ought to regulate, their actions, it cannot, with correctness of idea or expression, be held or said on this ground, or in this respect, to form a part of what is now strictly and properly termed the law of nations. The law of nations, properly so called, is that collection of rules by which the reciprocal intercourse of independent states, and of the individuals of whom they are composed, is or ought to be governed. This, in more precise language, has been termed, by that accomplished lawyer Chancellor D'Aguesseau,* Droit public exterieur, or Droit entre les nations, jus inter gentes; and afterwards, by that acute and philosophic jurist Mr Bentham, in his Principles of Morals and Legislation, International Law. And to this code, the principles of private, maritime, and mercantile jurisprudence cannot, with propriety, be said to belong. The law of maritime commerce forms a part of the internal law of the state; and may be, and is frequently, enforced by the common-law courts, as well as by the admiralty courts or maritime judicatories of a country. It is established by the governments of different states, to regulate, in that class of transactions, the conduct chiefly of their own subjects, or, at least, of individuals generally, without distinguishing them as natives or foreigners, or to what nation they belong; and it is only when mercantile transactions involve