« AnteriorContinuar »
became rules of decision in all maritime cases in which they were not contrary to sonic 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 than a boat sufficient to carry his own corn and fruits. The navigation which the Romans cultivated, was for the purposes of war, and not of commerce, except so far as was requisite for the supply of the Roman market with provisions. This is the reason, that amidst such a vast collection of wise regulations as are embodied in the fabric of the Roman
a 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. b Livy, lib. 21. ch, 63. Dig. 50. 5. 3. Cicero, Orat. in Verrem, lib..
5. s. 18.
c Huet, Histoire du Com. et de la Navig, des ancients, p. 278, 279. VOL. II.
law, affecting almost every interest and relation in human life, we meet with only a few brief and borrowed details on the interesting subject of maritime affairs. But those titles atone for their brevity, by their excellent sense and 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
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 Nauta, Caupones. Stabularii, ut recepta restituant, (Dig. 4. 9.) related to the responsibility of mariners, inn, and stable keepers; and we meet here with the princ.ple 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 faturi contingil, vel vis major contigerit. Ulpian placed the rule on the ground of public policy, as it was necessary to confide largely in the honest 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 Exerciloria 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
(2.) Of the maritime legislation of the middle ages.
Upon the revival of commerce, after the destruction of the Western empire of the Romans, maritime rules became necessary. The earliest code of modern sea laws was
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 responsi bility 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 be was entitled to recover of the owner, without being oblig d to prove the actual application of the money to the purposes of the voyage. So master went beyond his ordinary powers, as for instance, was ap. pointed to a vessel employed to carry goods of a particularescription, as hemp or vegetables, and he took on board shafts of g.uite 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 bur den according to the value of their property. There were some reasona ble 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 suscep tible of valuation; and it did not apply to the provisions which were used
compiled for the free and trading republic of Amalphi, in Ily, about the time of the first crusade, towards the end
the eleventh century. This compilation, which has been known by the name of the Amalphitan Table, superseded the ancient laws; and its authority was acknow
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 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 expugnala, (Dig. 47. 9.) related to the plunder of vessels in distress; and it did great honour 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 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, infall its purity and simplicity, seems to have pervaded those ancient institutions.
ledged by all the states of Italy. 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 cominercial 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 vindicate the claim of their country to the honour 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 edi. tion printed at Barcelona, in 1494, are in favour of the Spanish claim. 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 laboured article, endeavours to prove that the Consolato was compiled by the Pisans, in Italy, during the period of their maritime prosperity. Grotius,d on the other hand, and Marquardus, in his work De Jure Mercatorum, hold it to be a collection made in the time of 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. It was probably a compilation made by private persons; but whoever may have been the authors of
a Azuni's Maritime Law, vol. I. 376.
b 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. 7076. to be inconclusive, and that Pisa first practised those usages, which a century or two afterwards were formally digested and promulgated at Barcelona.
c Maritime Law, vol. I. 326-372.
Lib. 3. ch. I. s. 5. note.
e Boulay Paty, in his Cours de Droit Commercial Maritime, tom. 1. 60. insists, that Azuní has refuted Grotius and the other publicists on this point in a triumphant manner,