PART V.

OF THE LAW CONCERNING PERSONAL

PROPERTY.

(CONTINUED FROM THE SECOND VOLUME.)

LECTURE XLII.

OF THE HISTORY OF MARITIME LAW.

BEFORE we enter more at large upon the subject of commercial and maritime law, it may tend to facilitate and enlighten our inquiries, if we take a brief view of the origin, progress, and successive improvements of this branch of legal learning. This will accordingly be attempted in the present lecture.

The marine law of the United States is the same as the marine law of Europe. It is not the law of a particular country, but the general law of nations; and Lord Mansfield applied to its universal adoption the expressive language of Cicero, when speaking of the eternal laws of justice: Nec erit alia lex Romæ, alia Athanis; alia nunc, alia posthac; sed et omnes gentes, et omni tempore una lex et sempiterna, et immortalis continebit."

In treating of this law, we refer to its pacific character as the law of commerce and navigation in time of peace. The respective rights of belligerents and neutrals in time of war constitute the code of prize law, and that forms a distinct subject of inquiry, which has already been sufficiently discussed in a former volume. When Lord Mansfield mentioned the law of merchants as being a branch of public law, it was because that law did not rest essentially for its character and authority on the positive institutions and local customs of any particular country, but consisted of certain principles and usages of trade which general convenience, and a common sense of justice had established, to regulate the dealings of merchants and mariners in all the commercial countries of the civilized world.

(1.) Of the maritime legislation of the ancients.

Though the marine law of modern Europe has its foundations laid in the jurisprudence of the ancients, there is no certain evidence that either the Phoenicians, Carthaginians, or any of the states of Greece, formed any authoritative digest of naval law. Those powers were distinguished for navigation and commerce, and the Athenians in particular were very commercial, and they kept up a busy intercourse with the Greek colonies in Asia Minor, and on the borders of the Euxine and the Hellespont, in the islands of the Ægean sea, and in Sicily and Italy. They were probably the greatest naval power in all antiquity. Themistocles had the sagacity to discern the wonderful influence and controlling ascendancy of naval power. It is stated by Diodorus Siculus, that he persuaded the Athenians to build twenty new ships every year. He established the Piræus as a great commercial emporium and arsenal for Athens, and the cultivation of her naval superiority and glory was his favourite policy; for he held the proposition which Pompey afterwards adopted, that the people who were masters of the sea would be masters of the world. The Athenians encouraged, by their laws, navigation and trade; and there

was a particular jurisdiction at Athens for the cognizance of contracts, and controversies between merchants and mariners. There were numerous laws relative to the rights and interests of merchants, and of their navigation; and in many of them there was an endeavour to remove, as much as possible, the process and obstacles which afflicted the operations of commerce. In a pleading of Demosthenes against Lacritus, we find the substance of a loan upon bottomry, with all the provisions and perils appertaining to such a contract, carefully noted." As a consequence of the commercial spirit and enterprise of the Greeks, their language was spoken throughout all the coasts of the Mediterranean and Euxine seas. Cicero was struck with the comparison between the narrow limits in which the Latin language was confined, and the wide extent of the Greek. The universality and stability of the Greek tongue, were owing, no doubt, in a considerable degree, to the conquests of Alexander, to the loquacity of the Greeks, and the inimitable excellence of the language itself; but it is essentially to be imputed to the commercial genius of the people, and to the factories which they established, and the trade and correspondence which they maintained throughout the then known. parts of the eastern world.

The Rhodians were the earliest people that actually created, digested, and promulgated a system of marine law. They obtained the sovereignty of the seas about nine hundred years before the Christian era, and were celebrated for their naval power and discipline. Their laws concerning navigation were received at Athens, and in all the islands of the Ægean sea, and throughout the coasts of the Mediterranean, as part of the law of nations. Cicero, who in early life studied rhe

a 1 Potter's Greek Antiq. 84. Voyage du jeune Anacharsis, tom. 5. ch. 55. 2 Mitf. Hist. 182-185.

b Græca leguntur in omnibus fere gentibus: Latina suis finibus exiguis sane, continentur. Orat. pro Archia Poeta, s. 10.

toric at Rhodes, says, that the power and civil discipline of that republic continued down within his time of memory, in vigour and with glory. We are indebted to the Roman law for all our knowledge of the commercial jurisprudence of the Rhodians. Not only their arts and dominion have perished, but even their nautical laws and usages would have entirely and for ever disappeared in the wreck of nations, had it not been for the superior wisdom of their masters the Romans; and one solitary title in the pandects,' contains all the fragments that have floated down to modern times, of their once celebrated maritime code. The collection of laws, under the title of Rhodian laws, published at Basle, in 1561, and at Frankfort, in 1596, were cited as genuine by such civilians as Cujas, Godefroi, Selden, Vinnius, and Gravina; and yet it has since been discovered and de clared by equally learned jurists, as Bynkershoeck, Heineccius, Emerigon, and Azuni, that the collection of laws which had been thus recognised as the ancient Rhodian laws, (and of which a translation was given in the collection

a Orat. pro. Lege Manilia. ch. 18.

b Dig. 14. 2. De Lege Rhodia de Jactu.

c Pecku Comm. ad rem nauticam cum notis Vinnii. Lugd. 1647.

d Opera, tom. 2. De Lege Rhodia, ch. 8.

e Hist. Jur. Civilis Rom. ac Germ. lib. 1. s. 296.

f Traite des Ass. pref.

g Maritime Law of Europe, vol. 1. 277 to 295, N. Y. Edit. In the note to p. 286, William Johnson, Esq. the learned translator of Azani, detects many gross errors in the pretended collection of Rhodian laws, contained in the English "complete body of Sea Laws." Mr. Johnson's opinion is, of itself, of great authority; and his notes to his translation of Azuni, show a familiar and accurate acquaintance with legal and classical antiquities. Yet notwithstanding all the authority against the authenticity of that collection, M. Boulay Paty, in his Cours de Droit Commercial Maritime, tom. 1. p. 10-21, does not hesitate to give a succinct analysis of that collection, as containing at least the sense and spirit of the original laws, and as being an exposition of the true text,

of sea laws published at London in the reign of Queen Anne,) are not genuine, but spurious. The emperor Augustus first gave a sanction to the laws of the Rhodians, as rules for decision in maritime cases at Rome; and the emperor Antoninus referred one of his subjects, aggrieved by the plunder of his shipwrecked property, to the maritime laws of Rhodes, as being the laws which, he said, were the sove reign of the sea. The Rhodian laws, by this authoritative recognition, became rules of decision in all maritime cases in which they were not contrary to some express provision of the Roman law. They were truly, as Valin has observed, the cradle of nautical jurisprudence.

We are, therefore, to look to the collections of Justinian, for all that remains to us of the commercial law of the ancients. The Romans never digested any general code of maritime. regulations, notwithstanding they were pre-eminently distinguished for the cultivation, method and system which they gave to their municipal law. They seem to have been contented to adopt as their own the regulations of the republic of Rhodes. The genius of the Roman government was military, and not commercial. Mercantile professions were despised, and nothing was esteemed honourable but the plough and the sword. They encouraged corn merchants to import provisions from Sardinia, Sicily, Africa and Spain; but this was necessary for the subsistence of the inhabitants of Rome, as Italy did not afford a sufficient supply for the city. The Romans prohibited commerce to persons of birth, rank, and fortune; and no senator was allowed to own a vessel larger

a Dig. 14. 2. 9.

b Code 4. 63. 3. The decree in the code speaks contemptuously of commerce, and as being fit only for plebeians, and not for those who were honorum luce conspicuos, et patrimonio ditiores. Even Cicero regarded commerce as being inconsistent with the dignity of the masters of the world: nolo eundem populum Imperatorem, et Portitorem esse terrarum.