Commentaries on American Law (1826-30)
Chancellor James Kent
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 Romae, alia Athaenis; alia nunc, alia posthac; sed et omnes gentes, et omni tempore una lex et sempiterna, et immortalis continebit.1
In treating of this law, we refer to its pacific character 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 the former volume. When Lord Mansfield mentioned the law of merchants as being a breach 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 and usages 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.
(1.) Of the maritime legislation of the ancients.
Though the marine law of modern Europe has 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 Hellespout, in the islands of the Aegean 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 ascendancy of naval power. It is stated by Diodorus Siculus, that he persuaded the Athenians to build twenty new ships every year. He established the Piraeus 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.
The Athenians encouraged, by their laws, navigation and trade; 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 commerce. In a pleading of Demosthenes against Lacritus, there is the substance of a loan upon bottomry, with all the provisions and perils appertaining to such contract, carefully noted.2 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.3 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 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 Aegean sea, and throughout the coasts of the Mediterranean, as part of the law of nations. Cicero, who in early life studied rhetoric at Rhodes, says,4 that the power and civil 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 pandects,5 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, were cited as genuine by such civilians as Cujas, Godefroi, Selden, Vinnius, and Gravina; and yet it has since been discovered and declared by equally learned jurists, as Bynkershoek,6 Heineccius,7 Emerigon,8 and Azuni,9 that the collection of laws which had been thus recognized as the ancient Rhodian laws, (and of which a translation was given in the collection of sea laws published 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, being the laws which, he said, were the sovereign of the sea.10 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 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 honorable but the plow 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;11 and no senator was allowed to own a vessel larger than a boat sufficient to carry his own corn and fruits.12 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.13 This is the reason, that amidst such a vast collection of wise regulations as are embodied in the fabric of the Roman 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 carne from the pens of such sages as Papinian, Paul, Julian, Labeo, Ulpian, and Scaevola, carried with it demonstrative proofs of the wisdom of their philosophy, and the elegance of their taste.14
(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 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 was acknowledged by all the states of Italy.15 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 vindicate 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.16
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,17 endeavors to prove that the Consolato was compiled by the Pisans, in Italy, during the period of their maritime prosperity. Grotius,18 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.19 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 laws of Italy, Spain, France, and England, were greatly affected by its influence; and it formed the basis of subsequent maritime ordinances.20 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.21
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.22 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 principle. 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, jettisons, and average contributions. It treated also of maritime captures, and of the mutual 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 re-united the suffrages of mankind.23
The laws of Oleron were the next collection in point of time and celebrity. 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, Dutchess 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.24 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 from the Rhodian laws, and the Consolato, with alterations and additions, adapted to the trade of western Europe. They have served as a model for subsequent sea laws, and have at all times been extremely respected in France, and perhaps equally so in England, though not under the impulse of the same national feeling of partiality. They have been admitted as authority on admiralty questions in the courts of justice in this country.25 The laws of Wisbuy were compiled by the merchants of the city of Wisbuy, in the island of Gothland, in the Baltic sea, about the year 1288. It had been contended by some writers, that these laws were more ancient than those of Oleron, or even than the Consolato. But Cleirac says, they were but a supplement to the laws of Oleron, and constituted the maritime law of all the Baltic nations north of the Rhine, in like manner as the laws of Oleron governed in England and France, and the provisions of the Consolato on the shores of the Mediteranean. They were, on many points, a repetition of the judgments of Oleron, and became the basis of the ordinances of the Hanseatic League.26
The renowned Hanseatic association was begun at least as early as the middle of the thirteenth century, and it originated with the cities of Lubec, Bremen, and Hamburgh. The free and privileged Hanse Towns became the asylum of commerce, and the retreats of civilization, when the rest of Europe was subjected to the iron sway of the feudal system, and the northern seas ware infested by “savage clans, and roving barbarians.” Their object was mutual defense against piracy by sea, and pillage by land. They were united by a league offensive and defensive, and with an intercommunity of citizenship and privileges. The association of the cities of Lubec, Brunswick, Dantzick and Cologne, commenced in the year 1254, according to Cleirac, and in 1164, according to Azuni; and it became so safe and beneficial a confederacy, that all the cities and large towns on the Baltic, and on the navigable rivers of Germany, to the number of eighty-one, acceded to the union. One of the means adopted by the confederates to insure prosperity to their trade, and to protect them from controversies with each other, was the formation of a code of maritime law. The consuls and deputies of the Hanseatic league, in a general convention at Lubec in 1614, added to their former ordinances of 1597, (or 1591, as Azuni insists,) from the laws of Oleron, and of Wisbuy, and establish a second and larger Hanseatic ordinance, under the title of the Jus Hanseaticum Maritimum. This digest of nautical usages and regulations, was founded evidently on those of Wisbuy and Oleron, and from the great influence and character of the confederacy, it has always been deemed a compilation of authority.27
(3.) Of the maritime legislation of the moderns.
But all the former ordinances and compilations on maritime law, were in a great degree superseded in public estimation, their authority diminished, and their luster eclipsed by the French ordinance upon commerce in 1673, which treated largely of negotiable paper; and more especially by the celebrated marine ordinance of 1681. This monument of the wisdom of the reign of Louis XIV, far more durable and more glorious than all the military trophies won by the valor of his arms, was erected under the influence of the genius and patronage of Colbert, who was not only the minister and secretary of state to the king, but inspector and general superintendant of commerce and navigation. It was by the special direction of that minister, and with a view to illustrate the advantages of the commerce of the Indies, that Huet wrote his learned history of the commerce and navigation of the ancients.28 The vigilance and capacity of the ministry of Louis communicated uncommon vigor to commercial inquiries. They created a marine which shed splendor on his reign, and corresponded, in some degree, with the extent of his resources. It required such a work as the ordinance to which I have referred, to consolidate the establishment of the maritime power which had been formed by the sagacity of his counsels.
That ordinance, says Valin, was executed in a masterly manner. It was so comprehensive in its plan, so excellent in the arrangement of its parts, so just in its decisions, so wise in its general and particular policy, so accurate and clear in its details, that it deserves to be considered as a model of a perfect code of maritime jurisprudence. The whole law of navigation, shipping, insurance, and bottomry, was systematically collected and arranged. It required the greatest extent of knowledge, and the most correct discernment and liberality of views, to form and execute such a work. It was necessary to examine the commercial usages of all other nations, and select from amidst a contrariety of practice the most approved rules. It was necessary to retrench that which was superfluous, to enlighten that which was obscure, and to supply those things which had escaped the observation of the earlier founders of nautical law, or been recommended by the lights of experience. It is, however, an extraordinary fact, that the able civilians, and perhaps the distinguished merchants, who assumed the task of legislators, and compiled the ordinance, are unknown to fame; and though the event be of so recent a date, and occurred at the most polished and literary era in French history, neither letters, nor gratitude, nor national vanity, have been able to rescue their name from oblivion.29
Valin supposed he had discovered the source of the materials of the ordinance in a curious and vast compilation of ancient maritime laws, among the manuscript collections in the library of the Duke of Penthievre. The compilation consisted of the Rhodian and Roman law; of the Consolato, and of the use and customs of the sea; of the ordinances of Charles V. and Philip II., kings of Spain; of the judgments of Oleron; of the ordinance of Wisbuy, and of the Teutonic Hanse; of the insurance codes of Antwerp and Amsterdam; of the Guidon, and of all the French ordinances prior to the year 1660. This magnificent repository of commercial science is supposed to have been the true and solid foundation of the fabric erected by artists who had too much modesty to make their work the vehicle of their own immortality. Every commercial nation has rendered homage to the wisdom and integrity of the French ordinance of the marine, and they have regarded it as a digest of the maritime law of civilized Europe. Valin has written a commentary upon every part of it, and it almost rivals the ordinance itself in the weight of its authority, as in the equity of its conclusions.30
In addition to these general codes of commercial legislation, there have been a number of local ordinances, of distinguished credit, relating to nautical matters and marine insurance, such as the ordinances of Barcelona, Florence, Amsterdam, Antwerp, Copenhagen, and Konigsberg. There have also been several treatises on nautical subjects by learned civilians in the several countries of Europe, which are of great authority and reputation.31
The English nation never had any general and solemnly enacted code of maritime law, resembling those which have been mentioned as belonging to the other European nations. This deficiency was supplied, not only by several extensive private compilations,32 but it has been more eminently and more authoritatively supplied, by a series of judicial decisions, commencing about the middle of the last century. Those decisions have shown, to the admiration of the world, the masterly acquaintance of the English judiciary with the principles and spirit of commercial policy and general jurisprudence, and they have afforded undoubted proofs of the entire independence, impartiality and purity of the administration of justice. The numerous cases in the books of reports which have arisen upon maritime questions, resemble elementary treatises in the depth, extent, and variety of their researches, while they partake, at the same time, of the precision and authority of legislative enactments. Lord Mansfield, at a very early period of his judicial life, introduced to the notice of the English bar, the Rhodian laws, the Consolato del mare, the laws of Oleron, the treatises of Roccus, the laws of Wisbuy, and, above all, the marine ordinances of Louis XIV., and the commentary of Valin. These authorities were cited by him in Luke v. Lyde,33 and from that time a new direction was given to English studies, and new vigor, and more liberal and enlarged views communicated to forensic investigations.
Since the year 1798, the decisions of Sir William Scott, (now Lord Stowell) on the admiralty side of Westminster Hall, have been read and admired in every region of the republic of letters, as models of the most cultivated and the most enlightened human reason. The English maritime law can now be studied in the adjudged cases with at least as much profit, and with vastly more pleasure, than in the dry and formal didactic treatises and ordinances professedly devoted to the science. The doctrines are there reasoned out at large, and practically applied The arguments at the bar, and the opinions from the bench, are intermingled with the gravest reflections, the most scrupulous morality, the soundest policy, and a thorough acquaintance with all the various topics that concern the great social interests of mankind.
Nor has our learned profession in this country been wanting in the study and cultivation of maritime law. Our improvement has been rapid, and our career illustrious, since the adoption of the present constitution of the United States. There have been several respectable treatises on subjects of commercial law, and some of them we may notice when we are upon the branches to which they are applied. The decisions in the federal courts in commercial cases, have done credit to the moral and intellectual character of the nation; and the admiralty courts in particular have displayed great research, and a familiar knowledge, of the principles of the marine law, of Europe. But I should omit doing justice to my own feelings, as well as to the cause of truth, if I were not to select the decisions in Gallison’s and Masons’s Reports, as specimens of pre-eminent merit. They may fairly be placed upon a level with the best productions of the English admiralty, for deep and accurate learning, as well as for the highest ability and wisdom in decision.
The reports of judicial decisions in the several states, and especially in the states of Massachusetts, New York, and Pennsylvania, evince great attention to maritime questions, and they contain abundant proofs, that our courts have been dealing largely with the business of an enterprising and commercial people. Maritime law became early and anxiously an object of professional research. If we take the reports of this state in chronological order, we shall find, that the first five volumes occupy the period when Alexander Hamilton was a leading advocate at our bar. That accomplished lawyer (for it is in that character only that I am now permitted to refer to him) showed, by his precepts and practice, the value to be placed on the decisions of Lord Mansfield. He was well acquainted with the productions of Valin and Emerigon, and if he be not truly one of the founders of the commercial law of this state, he may at least be considered as among the earliest of those jurists who recommended those authors to the notice of the profession, and, rendered the study and citation of them popular and familiar. His arguments on commercial, as well as on other questions, were remarkable for freedom and energy; and he was eminently distinguished for completely exhausting every subject which he discussed, and leaving no argument or objection on the adverse side unnoticed and unanswered. He traced doctrines to their source, or probed them to their foundations, and at the same time paid the highest deference and respect to sound authority. The reported cases do no kind of justice to his close and accurate logic; to his powerful and comprehensive intellect; to the extent of his knowledge, or the eloquence of his illustrations. We may truly apply to the effort, of his mind, the remark of Mr. Justice Butler, in reference to the judicial opinions of another kindred genius, that “principles were stated, reasoned upon, enlarged and explained, until those who heard him were lost in admiration at the strength and stretch of the human understanding.”