amidst such a vast collection of wise regulations as are embodied in the Roman law, affecting almost every interest and relation of human life, we meet with only a few brief and borrowed details on the interesting subject of maritime affairs. But those *7 titles atone for * their brevity by their excellent sense of practical wisdom. They contain the elements of those very rules which have received the greatest expansion and improvement in the maritime codes of modern nations. Whatever came from the pens of such sages as Papinian, Paul, Julian, Labeo, Ulpian, and Scævola carried with it demonstrative proofs of the wisdom of their philosophy and the elegance of their taste. (a) greatness of Rome before the expulsion of Tarquin; but the liberal and enlarged spirit of commerce which inspired the Romans, under their kings, was soon after lost in the passion for war and conquest. Mr. Hooke, in his Dissertation on the Credibility of the History of the First Five Hundred Years of Rome, very plausibly suggests, that Polybius was probably mistaken in the date of this commercial treaty with Carthage, and it was made after the year 415, instead of the year 244, A. U. C. But as Niebuhr and Mitford (Hist. of Greece, ii. 151), and Heeren, in his Reflections, &c., i. 485, assume the antiquity of the treaty, as stated by Polybius, to be correct, no higher modern authority for that point can be produced. There was a second commercial treaty between Rome and Carthage, 161 years after the other, and which is also mentioned by Polybius, and it contains cautionary restrictions, and some fair and liberal terms of commerce between those two great rival republics. (a) It may be useful to cast the eye for a moment over the most material principles and provisions in the Roman law, relative to maritime rights. The title Nautæ, caupones, stabularii, ut recepta restituant (Dig. 4. 9), related to the responsibility of mariners, inn and stable keepers; and we meet here with the principle which pervades the maritime law of all modern nations, for it has been as generally adopted and as widely diffused as the Roman law. Masters of vessels were held responsible, as common carriers, for every loss happening to property confided to them, though the loss happened without their fault, unless it proceeded from some peril of the sea or inevitable accident; nisi si quid damno fatali contingit, vel vis major contigerit. Ulpian placed the rule on the ground of public policy, as it was necessary to confide largely in the honesty of such people, who have uncommon opportunity to commit secret and impenetrable frauds. The master was responsible for the acts of his seamen, and each joint owner of the vessel was answerable in proportion to his interest. The title Furti adversus nautas, caupones, stabularios (Dig. 47. 5), related to tho same subject; and the owners and masters were therein held answerable for thefts committed by any person employed under them in the ship. But the law distinguished between thefts by mariners and by passengers, and the master was not liable for thofts by the latter. The title De exercitoria actione (Dig. 14. 1) treated of the responsibility of shipowners for the acts of the master. This, said Ulpian, was a very reasonable and useful provision, for as the shipper was obliged to deal with masters of vessels, it was right that the owner who appointed the master, and held him out to the world as an agent worthy of confidence, should be bound by his acts. This responsibility extended to every thing that the master did in pursuance of his power and duty as master. It 2. Of the Maritime Legislation of the Middle Ages. — Upon the revival of commerce, after the destruction of the Western Empire extended to his contracts for wages, provisions, and repairs for the ship, and for the loan of money for the use of the ship. The owner was not responsible, except for acts done by the master in his character of master; but if he took up money for the use of the ship, and afterwards converted it to his own use, the owner was bound to respond, for he first gave credit to the master. A case of necessity for the money must have existed; and in that case only, the power to borrow came within the master's general authority. The lender was obliged to make out, at his peril, the existence of such necessity; and then he was entitled to recover of the owner, without being obliged to prove the actual application of the money to the purposes of the voyage. So, if the master went beyond his ordinary powers, as, for instance, if he was appointed to a vessel employed to carry goods of a particular description, as hemp or vegetables, and he took on board shafts of granite or marble, the owner was not answerable for his acts; for there were vessels destined on purpose to carry such articles, and others to carry passengers, and some to navigate on rivers, and others to go to sea. If several owners were concerned in the appointment of the master, they were each responsible in solido for his contracts. The title De Lege Rhodia de jactu (Dig. 14. 2) is the celebrated fragment of the Rhodian law on the subject of jettison. It was ordained that if goods were thrown overboard, or a mast cut away in a storm, or other common danger, to lighten and save the vessel, and the vessel be saved by reason of the sacrifice, all concerned must contribute to bear the loss, as it was incurred voluntarily for the good of all, and it was extremely equitable that all should ratably bear the burden according to the value of their property. There were some reasonable limitations to the rule. It did not apply to the persons of the free passengers on board, for the body of a freeman was said not to be susceptible of valuation; and it did not apply to the provisions which were used in common. The goods sacrificed were to be estimated at their actual value, and not at the anticipated profit; but the goods saved were to be estimated, for the sake of the contribution, not at the price for which they were bought, but at that for which they might sell. The title De nautico fœnore (Dig. 22. 2; Code, 4. 33) regulated maritime loans. The lender was allowed to take extraordinary interest, because he staked his principal on the success of the voyage and the safety of the vessel, and took as his security a pledge of the ship or cargo. The maritime interest ceased upon the arrival of the vessel; and if she was lost by reason of seizure, for having contraband goods of the debtor on board, the lender was still entitled to his principal and interest, because the loss arose from the fault of the debtor. The title De incendio, ruina, naufragio, rate, nave expugnata (Dig. 47. 9) related to the plunder of vessels in distress; and it did great honor to the justice and humanity of the Roman law. The edict of the prætor gave fourfold damages to the owner, against any person who, by force or fraud, plundered a ship in distress. The guilty persons were liable, not only to be punished criminally on behalf of the government, but to make just retribution to the aggrieved party; and the severity of the rule, said Ulpian, was just and necessary, in order to prevent abuses in cases of such calamity. The same provision was extended to losses by those means during a calamity by fire. The law applied equally to the fraudulent receiver and original taker of the shipwrecked articles, and he was held to be equally guilty. This cursory view of the leading doctrines of the Roman maritime law (for I have not thought it necessary to take notice of all the refined and intelligent distinctions) *9 The of the Romans, maritime rules became necessary. earliest code of modern sea laws was compiled *for the free and trading republic of Amalphi, in Italy, about the time of the first crusade, towards the end of the eleventh century. This compilation, which has been known by the name of the Amalphitan Table, superseded the ancient laws; and its authority and equity were acknowledged by all the states of Italy, though the whole work has now passed into irretrievable obliv*10 ion. (a) Other states and cities began to form collections of maritime law; and a compilation of the usages and laws of the Mediterranean powers was made and published under the title of the Consolato del Mare. This commercial code is said to have been digested at Barcelona, in the Catalan tongue, during the middle ages, by order of the kings of Arragon. The Spaniards vindicated the claim of their country to the honor of this compilation; and the opinion of Casaregis, who published an Italian edition of it at Venice, in 1737, with an excellent commentary, and of Boucher, who, in 1808, translated the Consolato into French from an edition printed at Barcelona in 1494, are in favor of the Spanish claim. (a) But the origin of the work is so far involved in the darkness of those ages, as to render the source of it very doubtful; and Azuni, in a labored article, (b) endeavors to prove that the Consolato was compiled by the Pisans, in Italy, during the period of their maritime prosperity. Grotius, (c) on the other hand, and Marquardus, in his work, De Jure Mercatorum, hold it to be a collection made in the time of is sufficient to show how greatly the maritime codes of the moderns are indebted to the enlightened policy and cultivated science of the Roman lawyers. The spirit of equity, in all its purity and simplicity, seems to have pervaded those ancient institutions. (a) Azuni's Maritime Law, i. 376. Mr. Swinburne, who visited Amalphi, on his excursion to the ruins of Pæstum, in 1779, found the city in great decay, with only the wrecks of its former grandeur. Its trade withered with the loss of its liberty, and passed to Pisa, Genoa, and Venice. It was conquered by the Normans, and plundered by the Pisans, who carried away a copy of the Pandects found there, and we hear no more of the Amalphitan Table, or of the high reputation of the maritime tribunals of Amalphi. Swinburne's Travels in the Two Sicilies, ii. 138-150. (a) Hallam, in his View of Europe during the Middle Ages, ii. 278, thinks the reasoning of Boucher, in his Consulat de la Mer, i. 70-76, to be inconclusive, and that Pisa first practised those usages, which a century or two afterwards were formally digested and promulgated at Barcelona. (b) Maritime Law, i. 326-372. Ed. New York. the crusades, from the maritime ordinances of the Greek emperors, of the emperors of Germany, the kings of France, Spain, Syria, Cyprus, the Baleares, and from those of the republics of Venice and Genoa. (b) It was probably a compilation made by private persons; but whoever may have been the authors of it, and at whatever precise point of time the Consolato may have been compiled, it is certain that it became the common law of all the commercial powers of Europe. *The marine #11 laws of Italy, Spain, France, and England were greatly affected by its influence; and it formed the basis of subsequent maritime ordinances. (a) It has been translated into the Castilian, Italian, German, and French languages; and an entire translation of it into English has long been desired and called for by those scholars and lawyers who were the most competent to judge of its value. (b) We are naturally induced to overlook the want of order and system in the Consolato, and the severity of some of its rules, and to justify Emerigon and Boucher in their admiration of the good sense and spirit of equity which dictated its decisions upon contracts, when we consider that the compilation was the production of a barbarous age. (c) It is, undoubtedly, the most authentic and venerable monument extant of the commercial usages of the middle ages, and especially among the people who were concerned in the various branches of the Mediterranean trade. It was as comprehensive in its plan as it was liberal in its principles. It treated of maritime courts, of shipping, of the ownership and equipment of ships, of the duties and responsibilities of the owners and master, of freight and seamen's wages, of the duties and government of seamen, of ransoms, salvage, (d) Boulay-Paty, in his Cours de Droit Commercial Maritime, i. 60, insists that Azuni has refuted Grotius and the other publicists on this point in a triumphant manner. (a) Casaregis, who was one of the most competent and learned of commercial lawyers, says, in one of his discourses (Dis. 213, n. 12), that the Consolato had, in maritime matters, by universal custom, the force of law among all provinces and nations. (b) There has been a translation of two chapters on prize by Dr. Robinson, and of some chapters on the ancient or commercial courts, and on recaptures, inserted in the 2d, 3d, and 4th volumes of Hall's American Law Journal. (c) Bynkershoek, in his Questiones Jur. Pub. lib. 1, c. 5, praises the justice of some of its rules, while he, at the same time, speaks disrespectfully and unjustly of the work at large, as a farrago legum nauticarum. jettisons, and average contributions. *12 maritime captures, and of the mutual It treated also of rights of neutral and belligerent vessels; and, in fact, it contained the rudiments of the law of prize. Emerigon very properly rebukes Hubner for the light and frivolous manner in which he speaks of the Consolato; and he says in return, that its decisions are founded on the law of nations, and have united the suffrages of mankind. (a) The laws of Oleron were the next collection in point of time and celebrity. (b) They were collected and promulgated in the island of Oleron, on the coast of France, in or about the time of Richard I. The French lawyers in the highest repute, such as Cleirac, Valin, and Emerigon, have contended, that the laws of Oleron were a French production, compiled under the direction of Queen Eleanor, Duchess of Guienne, in the language of Gascony, for the use of the province of Guienne, and the navigation on the coasts of the Atlantic; and that her son, Richard I., who was King of England as well as Duke of Guienne, adopted and enlarged this collection. Selden, Coke, and Blackstone, on the other hand, have claimed it as an English work, published by Richard I. in his character of King of England. (c) It is a proof of the obscurity that covers the early history of the law, that the author of such an important code of legislation as the laws of Oleron should have been left in so much obscurity as to induce profound antiquaries to adopt different conclusions, in like manner as Spain and Italy have asserted rival claims to the origin of the Consolato. The laws of Oleron were borrowed (a) Traité des Assurances, Pref. (b) Mr. Justice Ware (Ware, 201) says that the laws of Oleron, at least in the form in which we now have them, were a code earlier than the Consulate. But Cleirac says, that when Queen Eleanor, on her return from the Holy Land, prepared the project of the Laws of Oleron, the Customs of the Sea of the Levant, inserted in the Consulate, were at the same time in vogue and in credit in all the East. Les Us et Coutumes de la Mer, p. 2. The great authority and influence of the laws of Oleron, as being the foundation of the maritime legislation and jurisprudence of the western nations of Europe, have been illustrated with much ability by Mr. Justice Ware, in his learned opinion in the case of the Dawn, as reported in the Am. Jurist for October, 1841 [xxvi. 216]. (c) The question is of no sort of moment to us at the present day; but it is quite amusing to observe the zeal with which Azuni, Boucher, and Boulay-Paty engage in the contest. They insist that the pretension, as they term it, of such men as Selden and Blackstone was founded on a desire to flatter the English nation, and to deprive the French of the glory of the composition of those nautical ordinances. |