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SKETCH OF THE PROGRESS OF MARITIME LAW. - John Ramsay McCulloch, Treatises and Essays on Subjects connected with Economic Policy with Biographical Sketches of Quesnay, Adam Smith & Ricardo 
Treatises and Essays on Subjects connected with Economic Policy with Biographical Sketches of Quesnay, Adam Smith & Ricardo (Edinburgh: Adam and Charles Black, 1853).
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SKETCH OF THE PROGRESS OF MARITIME LAW.
“Nec erit alia lex Romæ, alia Athenis, alia nunc, alia posthac; sed et omnes gentes et omni tempore una lex et sempiterna, et immutabilis continebit.”
The earliest system of maritime law, of which we have any information, was compiled by the Rhodians, several centuries before the Christian æra. The most celebrated authors of antiquity have spoken in high terms of the wisdom of the Rhodian laws. Luckily, however, we are not wholly left, in forming our opinion upon them, to the vague, though commendatory, statements of Cicero and Strabo.1 The laws of Rhodes were adopted by Augustus into the legislation of Rome; and such was the estimation in which they were held, that the Emperor Antoninus, being solicited to decide a contested point with respect to shipping, is reported to have answered, that it ought to be decided by the Rhodian laws, which were of paramount authority in such cases, unless they happened to be directly at variance with some regulation of the Roman law.—“Ego quidem mundi dominus, lex autem maris legis id Rhodia, qua de rebus nauticis præscripta est,judicetur, quatenus nulla nostrarum legum adversatur. Hoc idem Divus quoque Augustus judicavit.” The rule of the Rhodian law with respect to average contributions in the event of a sacrifice being made at sea for the safety of the ship and cargo, is expressly laid down in the Digest;1 and the most probable conclusion seems to be, that most part of the regulations in regard to maritime affairs embodied in the compilations of Justinian, have been derived from the same source. The regulations as to average adopted by all modern nations, are borrowed, with hardly any alteration, from the Roman, and therefore, as now seen, from the Rhodian laws—a conclusive proof of the sagacity of those by whom they had been originally framed. The only authentic fragments of the Rhodian laws are those in the Digest. The collection entitled Jus navale Rhodiorum, published at Bâle in 1561, is now generally admitted to be spurious.
The first modern code of maritime law is said to have been compiled at Amalphi, in Italy, a city at present in ruins; but which, besides being early distinguished for its commerce, is celebrated for the supposed invention of the mariner’s compass. The Amalphitan code is said to have been denominated Tabula Amalphitana. It is difficult, however, to suppose, had such a body of law really existed, that neither it, nor any extracts from it, should ever have been published, and that all traces and vestiges of it should have been obliterated. It has, indeed, been referred to by Giannoue,2 Sismondi,3 and other distinguished writers. But Pardessus has gone far to destroy the weight that would otherwise have been attached to this circumstance, by showing that these authorities have satisfied themselves with copying the statement of Freccia, in his book “De Subfeudis,” published in 1570.4 And the presumption undoubtedly is, that the latter had mistaken a foreign code of maritime law, in force in Amalphi, for one of native origin. A code of this description appears to have been compiled at Trani, a town of Naples, on the Adriatic, as early as the 11th century (1063).1 And it seems infinitely more probable that it, or some one else, having been adopted by the Amalphitans, and disseminated by them, should have been supposed by Freccia to belong to that city, than that all traces of the native code, had it ever existed, should have been lost.
Besides Amalphi, Venice, Marseilles, Pisa, Genoa, Barcelona, Valencia, and other towns of the Mediterranean, were early distinguished by the extent to which they carried commerce and navigation. In the absence of any positive information on the subject, it seems reasonable to suppose that their maritime laws would be principally borrowed from those of Rome, with such alterations and modifications as might be deemed requisite to accommodate them to the particular views of each state. But whether in this or in some other way, it is certain that various conflicting regulations were established, which led to much confusion and uncertainty; and the inconveniences thence arising, doubtless contributed to the universal adoption of the Consolato del Mare as a code of maritime law. Nothing certain is known of its origin. Capmany, in his very learned and excellent works on the commerce of Barcelona,2 and on its maritime laws and customs,3 has endeavoured to show that the Consolato was compiled in that city between the years 1258 and 1266; and that it is founded upon, and embodies, the principal rules, regulations, and customs, which the inhabitants of Barcelona, Venice, Pisa, Genoa, and other commercial cities of the Mediterranean had adopted for their guidance in maritime affairs. Azuni contends, on the other hand, in opposition to Capmany, that Pisa is entitled to the glory of having compiled the Consolato. But, notwithstanding the ability displayed in his Dissertation,1 Pardessus, and other able critics, concur in thinking that he has not been able to shake the conclusions of Capmany. The Spanish origin of the Consolato is farther corroborated in a very striking manner by the fact, that it was first published in Catalan, at Barcelona, in 1502, and that the earlier French and Italian editions are, without any exception, translations from this.
Pardessus appears to have been sufficiently disposed, had there been any grounds to go upon, to set up a claim in favour of Marseilles, to the honour of being the birthplace of the Consolato. But he admits that no such pretension could be supported, and unwillingly adheres to Capmany’s opinion.—“Quoique Français,” says he, “quoique portée par des sentimens de reconnoissance, qu’aucun évènement ne sauroit affoiblir, à faire valoir tout ce qui est en faveur de Marseilles, je dois reconnoître franchement que les probabilités l’emportent en faveur de Barcelone.”2
But to whichever city the honour of compiling the Consolato may be due, its antiquity has been greatly exaggerated. It is affirmed, in a preface to the different editions, that it was solemnly accepted, subscribed, and promulgated, as a body of maritime law, by the Holy See, in 1075, and by the kings of France and other potentates at different periods between 1075 and 1270. But Capmany, Jorio, and Pardessus, have shown in the clearest and most satisfactory manner, that the circumstances alluded to in this preface could not possibly have taken place, and that it is unworthy of attention. The most probable opinion seems to be, that it was compiled, and began to be introduced, about the end of the 13th, or the beginning of the 14th century. And notwithstanding its prolixity, and its want of precision and clearness,1 the correspondence of the greater number of its rules with the ascertained principles of justice and public utility, gradually led, without the intervention of any agreement, to its adoption as a system of maritime jurisprudence by the various nations contiguous to the Mediterranean. It is still of high authority. Casaregis says of it, though perhaps too strongly,—“Consulatis maris, in materiis maritimis, tanquam universalis consuetudo habens vim legis, inviolabiliter attendenda est apud omnes provincias et nationes.”2
The collection of sea laws next in celebrity, but anterior, perhaps, in point of time, is that denominated the Roole des Jugements d’Oleron. There is as much diversity of opinion in regard to the origin of these laws, as there is in regard to the origin of the Consolato. The prevailing opinion in Great Britain has been, that they were compiled by direction of Queen Eleanor, wife of Henry II., in her quality of Duchess of Guienne; and that they were afterwards enlarged and improved by her son Richard I., at his return from the Holy Land. But this statement is now admitted to rest on no good foundation. The most probable theory seems to be, that they are a collection of the rules or practices followed at the principal French ports on the Atlantic, as Bordeaux, La Rochelle, St Malo, etc. They contain, indeed, rules that are essential to all maritime transactions, wherever they may be carried on; but the references in the code sufficiently prove that it is of French origin.3 The circumstance of our monarchs having large possessions in France at the period when the Rules of Oleron were collected, naturally facilitated their introduction into England; and they have long enjoyed a high degree of authority in this country. “I call them the Laws of Oleron,” said a great civilian,”1 “not but that they are peculiarly enough English, being long since incorporated into the customs and statutes of our admiralties; but the equity of them is so great, and the use and reason of them so general, that they are known and received all the world over by that rather than by any other name.” Molloy, however, has more correctly, perhaps, said of the laws of Oleron, that “they never obtained any other or greater force than those of Rhodes formerly did; that is, they were esteemed for the reason and equity found in them, and applied to the case emergent.”2
A code of maritime law issued at Wisby, in the island of Gothland, in the Baltic, has long enjoyed a high reputation in the North. The date of its compilation is uncertain; but it is comparatively modern. Some northern jurists have, indeed, contended that the laws of Wisby are older than the rules of Oleron, and that the latter are chiefly copied from the former. But it has been repeatedly shown that there is no foundation for this statement.3 The laws of Wisby are not certainly older than the latter part of the 14th or the beginning of the 15th century; and have obviously been compiled from the “Consolato del Mare,” the rules of Oleron, and other codes that were then in use. They have, however, been, and continue to be, of great authority in the North. Grotius says that the same deference is paid to them in the Baltic, which was formerly paid to the laws of Rhodes in the Mediterranean, and which continues to be paid to the rules of Oleron in France and other countries.4
Besides the codes now mentioned, the ordinances of the Hanse Towns, issued in 1597 and 1614, contain a system of laws relating to navigation that is of great authority. The judgments of Damme, the customs of Amsterdam, etc., are also often quoted.1
But by far the most complete and well digested system of maritime jurisprudence which has ever appeared, is comprised in the famous “Ordonnance de la Marine,” issued by Louis XIV. in 1681. This excellent code was compiled under the direction of Colbert, the celebrated minister, by individuals of great talent and learning, after a careful revision of all the ancient sea laws of France and other countries, and upon consultation with the different parliaments, the courts of admiralty, and the chambers of commerce of the different towns. It combines whatever experience and the wisdom of ages had shown to be best in the Roman laws, and in the institutions of the modern maritime states of Europe. In the preface to his treatise on the “Law of Shipping,” Lord Tenterden says,—“If the reader should be offended at the frequent references to this ordinance, I must request him to recollect that those references are made to the maritime code of a great commercial nation, which has attributed much of its national prosperity to that code: a code composed in the reign of a politic prince; under the auspices of a wise and enlightened minister; by laborious and learned persons, who selected the most valuable principles of all the maritime laws then existing; and which, in matter, method, and style, is one of the most finished acts of legislation that ever was promulgated.”
The ordinance of 1681 was published in 1760, with a detailed and elaborate commentary by Valin, in two volumes 4to.2 It is difficult which to admire most in this commentary, the learning or the sound good sense of the writer. Lord Mansfield was indebted for no inconsiderable portion of his superior knowledge of the principles of maritime jurisprudence to a careful study of Valin’s work.
That part of the “Code de Commerce” which treats of maritime affairs, insurance, etc., is copied with little alteration, from the ordinance of 1681. The few changes that have been made are not always improvements.
No system or code of maritime law has ever been issued by authority in Great Britain. The laws and practices that now obtain amongst us in reference to maritime affairs have been founded principally on the practices of merchants, the principles laid down in the civil law, the laws of Oleron and Wisby, the works of distinguished jurisconsults, the judicial decisions of our own and foreign countries, etc. A law so constructed has necessarily been in a progressive state of improvement; and, though still susceptible of amendment, it corresponds, at this moment, more nearly, perhaps, than any other system of maritime law, with those universally recognised principles of justice and general convenience by which the transactions of merchants and navigators ought to be regulated.
The decisions of Lord Mansfield had the greatest influence in fixing the principles and improving and perfecting the maritime law of England. “In the reign of George II.,” says Lord Campbell, “England had grown into the greatest manufacturing and commercial country in the world, while her jurisprudence had by no means been expanded or developed in the same proportion. The legislature had literally done nothing to supply the insufficiency of feudal law to regulate the concerns of a trading population; and the common law judges had, generally speaking, been too unenlightened and too timorous to be of much service in improving our code by judicial decisions. Hence, when questions necessarily arose respecting the buying and selling of goods—respecting the affreightment of ships—respecting marine insurances—and respecting bills of exchange and promissory notes—no one knew how they were to be determined. Not a treatise had been published upon any one of these subjects, and no cases respecting them were to be found in our books of reports. Mercantile questions were so ignorantly treated when they came into Westminster Hall, that they were usually settled by private arbitration among the merchants themselves. If an action turning upon a mercantile question was brought into a court of law, the judge submitted it to the jury, who determined it according to their own notions of what was fair, and no general rule was laid down which could afterwards be referred to for the purpose of settling similar disputes.”
“Lord Mansfield,” continues the same great authority, “saw the noble field that lay before him, and he resolved to reap the rich harvest of glory which it presented to him. Instead of proceeding by legislation, and attempting to codify as the French had done very successfully in the ‘Coustumier de Paris,’ and the ‘Ordonnance de la Marine,’ he wisely thought it more according to the genius of our institutions to introduce his improvements gradually by way of judicial decisions. As respected commerce, there were no vicious rules to be overturned. He had only to consider what was just, expedient, and sanctioned by the experience of nations farther advanced in the science of jurisprudence. His plan seems to have been, to avail himself, as often as opportunity admitted, of his ample stores of knowledge, acquired from his study of the Roman civil law, and of the juridical writers produced in modern times by France, Germany, Holland, and Italy, not only in doing justice to the parties litigating before him, but in settling with precision and upon sound principles, a general rule, afterwards to be quoted and recognised as governing all similar cases.”1
Lord Mansfield’s success was such as might be anticipated from his ability and industry. The principles which he established with such admirable clearness in his decisions, and the rules which have been deduced from them, have since served to guide and direct judges and juries in all cases of difficulty.
The maritime law is also under considerable obligations to Lord Stowell. His decisions chiefly, indeed, respect questions of neutrality, growing out of the conflicting pretensions of belligerents and neutrals during the late war. But the principles and doctrines which he unfolds in treating these questions, throw a strong and steady light, not on them only, but on most branches of maritime law. It has occasionally, indeed, been alleged, and the allegation is probably in some degree well founded, that his lordship has conceded too much to the claims of belligerents. Still, however, his judgments must be regarded, allowing for this excusable bias, as among the noblest monuments of judicial wisdom of which any country can boast. “They will be contemplated,” says Mr Serjeant Marshall, “with applause and veneration, as long as depth of learning, soundness of argument, enlightened wisdom, and the chaste beauties of eloquence, hold any place in the estimation of mankind.”1
The “Treatise of the Law relative to Merchant Ships and Seamen,” by Lord Tenterden, late Chief Justice of the Court of Queen’s Bench, does credit to its noble and learned author. It gives, within a brief compass, an admirable exposition of the most important branches of our maritime law; and may be consulted with equal facility and advantage by the merchant, the general scholar, and the lawyer. Mr Serjeant Marshall has entered very fully into some, and has touched upon most, points of maritime law, in his work on “Insurance;” and has discussed them with great learning and sagacity. The works of Mr Justice Park, Mr Holt, and a few others, are also valuable. Of the earlier treatises, the “Lex Mercatoria” of Malynes is by far the best; and, considering the period of its publication (1622), is a very extraordinary performance.
The preceding remarks refer merely to the principles or leading doctrines of our maritime law. These, however, have often been very much modified by statutory enactments; and the excessive multiplication of acts of parliament, suspending, repealing, or altering parts of other acts, has often involved our commercial and maritime law in almost inextricable confusion, and been most injurious to the public interests. No one, indeed, who is not pretty conversant with the subject, would readily imagine to what an extent this abuse has sometimes been carried. From the Revolution down to 1786 some hundreds of acts were passed, each enacting some addition, diminution, or change of the duties, drawbacks, bounties, and regulations, previously existing in the customs. In consequence, the customs laws became so intricate and unintelligible, that hardly one merchant in fifty could tell the exact amount of duty affecting any article, or the course to be followed either in entering or clearing out vessels; being obliged to leave it entirely to the clerks of the Custom-house to calculate the amount of duties, and to direct him how to proceed so as to avoid forfeiting the goods and the ship! And yet, so powerful is the influence of habit in procuring toleration for the most pernicious absurdities, that this monstrous abuse was allowed to go on increasing for fifty years after it had been denounced as intolerable. Mr Pitt has the merit of having introduced something like order into this chaos. Under his auspices, all the separate customs duties existing in 1787 were repealed, and new ones substituted in their stead; consisting, in most instances, of the equivalents, so far at least as they could be ascertained, of the old duties. The regulations as to entries and clearances were also simplified.
The advantages resulting from this measure were very great; but during the war so many new duties and regulations were passed, that the necessity for a fresh consolidation became again very urgent, and was effected in 1819. It was not, however, in the customs department only, or in the mere article of duties, that merchants and ship-owners were bewildered by the multiplicity of statutory regulations. There was not a single branch of the law regulating their transactions that escaped the rage for legislation. Previously to 1822, no fewer than 113 statutes had been passed relating to the fisheries; and the makers and buyers of sails and cordage were supposed to be familiar with the various obscure and contradictory regulations embodied in twenty-three acts of parliament relating to these articles! But the enormity of the abuse will be rendered more apparent, by laying before the reader the following extract from the “Report of the Lords’ Committee on Foreign Trade in 1820”:—
“Before,” say their lordships, “your committee proceed to advert to the points which have been the principal objects of their inquiry, they are anxious to call the attention of the House to the excessive accumulation and complexity of the laws under which the commerce of the country is regulated, with which they were forcibly impressed in the very earliest stage of their proceedings. These laws, passed at different periods, and many of them arising out of temporary circumstances, amount, as stated in a recent computation of them, to upwards of two thousand, of which no less than 1,100 were in force in 1815; and many additions have been since made. After such a statement, it will not appear extraordinary that it should be matter of complaint by the British merchant, that, so far from the course in which he is to guide his transactions being plain and simple, so far from being able to undertake his operations, and to avail himself of favourable openings as they arise with promptitude and confidence, he is frequently reduced to the necessity of resorting to the services of professional advisers, to ascertain what he may venture to do, and what he must avoid, before he is able to embark in his commercial adventures with the assurance of being secure from the consequences of an infringement of the law. If this be the case (as is stated to your committee) with the most experienced among the merchants, even in England, in how much greater a degree must the same perplexity and apprehension of danger operate in foreign countries and on foreign merchants, whose acquaintance with our statute-book must be supposed to be comparatively limited, and who are destitute of the professional authority which the merchant at home may at all times consult for his direction? When it is recollected, besides, that a trivial unintentional deviation from the strict letter of the acts of parliament may expose a ship and cargo to the inconvenience of seizure, which (whether sustained or abandoned) is attended always with delay and expense, and frequently followed by litigation, it cannot be doubted that such a state of the law must have the most prejudicial influence both upon commercial enterprise in the country, and upon our mercantile relations and intercourse with foreign nations; and, perhaps, no service more valuable could be rendered to the trade of the empire, nor any measure more effectually contribute to promote the objects contemplated by the House in the appointment of this committee, than an accurate revision of this vast and confused mass of legislation, and the establishment of some certain, simple, and consistent principles, to which all the regulations of commerce might be referred, and under which the transactions of merchants engaged in the trade of the United Kingdom might be conducted with facility, safety, and confidence.”1
Since this Report was printed, a very considerable progress has been made in simplifying and clearing up the statute law, on the principles laid down in it. The law as to shipping and navigation has been particularly improved. The reforms which Mr Huskisson effected, by repealing antiquated and contradictory statutes, and substituting others in their stead, compiled with commendable brevity and clearness, were attended with the happiest results. And, since his time, the repeal of a vast number of customs-duties, and the many important and beneficial changes effected by Sir Robert Peel, have greatly simplified the matters with which commercial legislation has to deal. Still, however, there is an unnecessary, and therefore a mischievous, multiplication of laws in regard to trade and navigation. A session hardly, indeed, passes in which more or fewer statutes are not enacted introducing changes or modifications of some sort or other into the laws relating to navigation and the customs-duties. And where these changes apply only to some particular case or emergency, and do not affect the principles or rules laid down in other statutes, they may be advantageously embodied in separate acts. But when any modification or alteration is to be made in any principle or rule of law, the better way is to introduce it directly into the leading act on the subject, re-enacting it in an amended or altered form. In no other way is it possible to preserve that unity and clearness which are so very desirable. The multiplication of statutes is a very great evil, not only from the difficulty of ascertaining the exact degree in which one modifies another, but from its invariably leading to the enactment of contradictory clauses. The property and transactions of merchants ought not to depend upon the subtleties and niceties of forced constructions, but upon plain and obvious rules, about which there can be no mistake. And it would be idle to expect that such rules should ever be deduced from the conflicting provisions of a number of statutes: those in the same statute are not always in harmony with each other.
[1 ] Cicero pro Lege Manilia; Strab. lib. xiv.
[1 ] Lib. xiv. tit. 2.
[2 ] Storia Civile del Regno di Napoli, lib. i. cap. 4.
[3 ] Republiques Italiennes, i. 264.
[4 ] Lois Maritimes, v. 223.
[1 ] It is given by Pardessus, in his “Lois Maritimes,” v. pp. 237-251.
[2 ] Antigua Comercio de Barcelona, tome i. pp. 170-183.
[3 ] Codigo de las Costumbres Maritimas de Barcelona,” 2 vols. 4to, Discurso Preliminar, pp. xii.-xxv.
[1 ] It is entitled “Des Lois du Consulat de la Mer,” and is contained in his work on Maritime Law, “Droit Maritime de l’Europe,” i. pp. 390-439. But though learned and able, it confers but little credit on Azuni, by whom it has been literally translated, without a word of acknowledgment, from a work by Jorio, a Neapolitan lawyer, in 4 vols. 4to, printed in 1781. (Pardessus, i. 9.) This work, of which the impression was limited to twenty-five copies, taken at the expense of government, comprises a projected code of maritime law, with historical notices of the previous laws, etc. Jorio is also the author of a “History of Commerce and Navigation” (Storia Del Commercio e Della Navigazione), in 4 vols. 4to, Napoli, 1778-83. It comprises only the commerce and navigation of the ancients; and, though learned, is tedious and uninteresting.
[2 ] Tome ii. p. 24.
[1 ] Hubner, in his famous treatise, “De la Saisie Des Batimens Neutres” (2 vols. 12mo, 1759), exaggerates these defects, and speaks much too depreciatingly of the Consolato,—i. p. xi.
[2 ] Disc. 213, n. 12.
[3 ] The “Jugements d’Oleron” were published, with a learned commentary by Cleirac, in 1647, in the work entitled “Us et Coutumes de la Mer,” reprinted in 1671.
[1 ] Sir Leoline Jenkins, “Charge to the Cinque Ports.”
[2 ] De Jure Maritimo et Navali, Introd.
[3 ] Pardessus, “Collection,” etc., i. pp. 425-462.
[4 ] De Jure Belli, lib. ii. cap. 3.
[1 ] A translation of the Laws of Oleron, Wisby, and the Hanse Towns, is given in the third edition of Malyne’s “Lex Mercatoria.” But it is discreditable to this country that we have no good, or even respectable, edition of these and other maritime laws. The collection of M. Pardessus is, both as regards completeness and critical accuracy, infinitely superior to every other.
[2 ] But the best edition is that of La Rochelle, 1776, 2 vols. 4to.
[1 ] See the masterly account of Lord Mansfield in Campbell’s “Lives of the Chief Justices,” ii. 402.
[1 ] On Insurance, Prelim. Disc.
[1 ] P. 4.