1. Frag, de Repub. lib. 3.
2. 1 Potter's Greek Antiq., 84. Voyage du jeune Anacharsis, tom. 6. ch. 55. 2 Mitf. Hist. 182-185.
3.Graeca leguntur in omnibus fere gentibus: Latina suis finibus exiguissane, continentur. Orat, pro Archia Poeta, s. 10.
4.Orat. pro. Lege Municia, ch. 18.
5. Dig. 14. 2. De Lege Rhodia de Jactu.
6. Opera, tom. 2. De Lege Rhodia. ch. 8.
7.Hist. Jur. Civilis Rom. ac. Germ. lib. 1. s. 296.
8.Traité des Ass. pref.
9. 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 Azuni, 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.
10. Dig. 14. 2. 9
11. 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 eundam populum Imperatorem, et Portitorem esse terrarum.
12. Livy, lib. 21. ch. 63. Dig. 50. 5. 3. Cicero, Orat. in Verrem, lib. 5, s. 18.
13. Huet, Histoire du Com. Et de la Navig. des ancients, p. 278, 279.
14. 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 Nautae, Capones. Stabularii, et 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 quad 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 the same subject, and the owner and master 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 thefts by the latter. The title De Exercitoria actione (Dig. 14. 1.) treated of the responsibility of ship owners 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 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 rateably 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 contribution, not at the price for which they were bought, but at that for which they might sell. The title De Nautico Faenore, (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, naufragis, 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 praetor gave fourfold damages to the owner, against any person who, by force or fraud, plundered a ship in distr ss. 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 such 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,) 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.
15. Azuni's Maritime Law, vol. 1, 376.
16. Hallam, in his View of Europe during the Middle Ages, vol. 2, 278. thinks the reasoning of Boucher, in his Consulat de la Mer, tom. 1, 70- 76 to be inconclusive, and that Pisa first practiced those usages, which a century or two afterwards were formally digested and promulgated at Barcelona.
17. Maritime Law, vol. 1. 326-372.
18. Lib. 3. ch. 1. s. 5 note.
19. Boulay Paty. in his Cours de Droit Commercial Maritime, tom. 1. 80. insists, that Azuni has refuted Grotius and the other publicists on the point in a triumphant manner.
20. 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.
21. There has been a translation of two chapters on prize by Dr. Robinson, and of some chapters on the ancient consular or commercial courts, and on re-captures. inserted in the 2d, 3d, and 4th volumes of Hall's American Law Journal.
22. Bynkershoek, in his Quaestiones Jur. Pub. lib. 1. ch. 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.
23.Traité des Assurances, pref.
24. 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 pretention, 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.
25. See Walton v. The Ship Neptune, 1 Peters' Adm. Dec. 142. Natterstrom v. Ship Hazard, in the District Court of Massachusetts, 2 Hall's L. J. 359. Sims v. Jackson, 1 Peters' Adm. Dec. 157, all of which were decided on the authority of the laws of Oleron. Cleirac published in the middle of the seventeenth century, the laws of Oleron, in his work entitled, Les Us et Coutumes de la Mer, with an excellent commentary. They were translated into English, with the notes of Cleirac, considerably abridged, and published in the collection of sea laws made in the reign of Queen Anne. They have likewise been published in this country in the Appendix to the first volume of Peters' Admiralty Decisions; from the copy in the Sea Laws. There is, likewise, annexed to these reports, a copy of the laws of Wisbuy, of the Hanse Towns, and of the marine ordinances of Louis XIV., and they have given increased interest to a valuable publication.
26. Cleirac, in his preamble to the ordinances of Wisbuy, (Les Us et Coutumes de la Mer. p. 136 ) gives from Johannes Magnus, and his brother Olaus, the historians of Sweden, and the Goths, a very glowing account of the former wealth and commercial prosperity and splendor of Wisbuy, the ancient capital of Gothland, and then a free and independent city. It was once the most celebrated and flourishing emporium in Europe, and merchants from all parts came there to traffic, and had their shops and warehouses and enjoyed the same privileges as the native inhabitants. But, in Cleirac's time, this bright vision had vanished, and the town, with its trade and riches, was destroyed and nothing was to be seen but heaps of ruins, the sad evidence of its former splendor and magnificence. Here is one ground for the melancholy admonition of the Poet, "That trade's proud empire hastes to swift decay." But the logic of the muse is entirely refuted by the stability of commercial power in other illustrious examples.
27.Les Us et Coutumes de la Mer, p. 157-165. Ward in his History of the Law of Nations, vol. ii. 276-290, adduces proofs, that the Hanseatic league exercised the rights of sovereignty as a federal republic, and with considerable strength and vigor, until the fifteenth century. No less than four commercial treaties were concluded between England and the Hanse Towns in the space of three years, from the year 1472 to 1474. But the league was dissolved as soon as the great powers of Europe withdrew their cities from the association; and the members of this confederacy are now reduced to the cities of Lubec, Hamburgh, and Bremen. Rym, Foed. tom. 9. cited in Henry's Hist. of Great Britain, b. 5. ch. 6. Putter's Constitutional History of Germany, vol. ii. p. 208.
28.Hist. du Comm. et de la Navig. des Anciens, Pref.
29. Valin's Com sur Pord, Pref. p. 4
30. The ordinance has been translated and printed in England, and published in the collection entitled Sea Laws, and it is annexed to the second volume of Judge Peter's Admiralty Decisions in the District Court of Pennsylvania. It has been redigested, with some few modifications and additions in the new Commercial Code of France of 1807; and that code was translated by Mr. Rodman, and published in the city of New York in 1814. The commercial code was presented to the French legislative body by the counselors of state in 1807, as having been conceived, meditated, discussed and established, by the inspiration of the greatest man in History, the Hero Pacificator of Europe, while he was bearing his triumphant eagles to the banns of the astonished Vistula; and yet, in contradiction to much of this adulation and incense, the code will be found, upon sober examination, to be essentially a republication, in a new form, of the marine ordinance of Louis XIV., digested under the orders of Colbert, and illustrated by the commentaries of Valin.
31. Those ordinances are collected by Magens, in the second volume of his Essay on Insurances; and Mr. Cushing, in a learned note to his translation of Pothier on Maritime Contracts of Letting to Hire, published at Boston in 1821, has alluded to the most distinguished writers in Italy, Spain, Portugal, France, Holland, Germany, and Sweden, on maritime law.
32. Among the private treatises, the most distinguished are those of Malynes, Molloy, Beawes, Postlewaite, Magens, Wesket, Millar,Park, Marshall, Abbott, Chitty, Holt, Lawes, and Benecke.
33. 2 Burr. 882.
