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 Roma, alia Athenis; alia nunc, alia posthac; sed et omnes gentes, et omni tempore una lex et sempiterna, et immortalis continebit. (a)

*In treating of this law, we refer to its pacific character *2 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-merchant 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 of equity 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. (a)

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

Though the marine law of modern Europe had 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 Egean 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 ascendency 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 favorite 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. (b) The Athenians encouraged, by their laws, navigation and trade; *3 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 endeavor to remove, as much as possible, the process and obstacles which afflicted the operations of Each state had its consul to protect and advance the

commerce.

*

(a) The law-merchant, says Blackstone, Com. vol. iv. 67, is a branch of the law of nations, and is regularly and constantly adhered to. It is a branch of the law of England, and those customs which have been universally and notoriously prevalent amongst merchants, and found to be of public use, have been adopted as part of it, for the benefit of trade and commerce, and are binding on all without proof Lord Denman, in Barnett v. Brandão, 6 Mann. & Gra. 665. The usage of merchants is alluded to in sacred writ, as early as the time of Abraham, upwards of 1800 years before the Christian era. He purchased the cave of Machpelah for four hundred shekels of silver, current money with the merchant. Gen. xxiii. 16.

(b) Themist. Hist. lib. 1; Cic. Epist. ad Atticum, lib. 19, epist. 8.

interests of commerce; and when a trader died abroad, it was part of the consul's duty to take charge of his property, and transmit an account to his friends at Athens. 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. (a) 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. (b) 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 colonies and 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 through out the coasts of the Mediterranean, as part of the law of nations. Cicero, who in early life studied rhetoric * at *4 Rhodes, says, (a) that the power and naval discipline of that republic continued down within his time of memory, in vigor 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 forever 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 Pan

(a) 1 Potter's Greek Antiq. 84; Voyage de jeune Anacharsis, tom. v. c. 55; 2 Mitf. Hist. 182-185. The profession of merchandise, says Plutarch, in his Life of Solon, was honorable in Greece. St. John's History of the Manners and Customs of Ancient. Greece, vol. iii. c. 9, on the commerce of Attica, and c. 10, on Navigation.

(b) Græca leguntur in omnibus fere gentibus: Latina suis finibus, exiguis, sano, continentur. Orat. pro Archia Poeta, s. 5.

(a) Orat. pro Lege Manilia, c. 13.

dects (6) 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, was cited as genuine by such civilians as Cujas, Godefroi, Selden, Vinnius, (c) and Gravina; and yet it has since been discovered and declared by equally learned jurists, as Bynkershoek, (d) Heineccius, (e) Emerigon, (ƒ) and Azuni, (g) that the collection of laws which had been

thus recognized as the ancient Rhodian laws, (and of which *5 a translation was given in the collection of * sea laws pub

lished 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 sovereign of the sea. (a) 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

(b) Dig. 14, 2; De Lege Rhodia de Jactu. This law, De Jactu, is the only rule that can be distinctly and authoritatively traced to the institutions of Rhodes. (c) Peckii, Com. ad rem nauticam cum notis Vinnii. Lugd. 1647.

(d) Opera, tom. ii. De Lege Rhodia, c. 8.

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

(f) Traité des Assurances, Pref.

(g) Maritime Law of Europe, vol. i. pp. 277-295, N. Y. edit. In the note to p. 286, William Johnson, Esq., the learned translator of Azuni, detects many gross errors in the pretended collections 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. i. pp. 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. M. Pardessus, in his Lois Mar. tom. i. p. 336, has shown that this compilation of the Rhodian laws belongs to the middle ages, and is a genuine compilation of the laws and usages in the Mediterranean at that period.

(a) Dig. 14, 2, 9. Lord Stair, in his Institutions, says that the Lex Rhodia has become by custom a law of nations, for its expediency to prevent shipwreck, and to encourage merchants to throw out their goods.