23 F. Cas. 1028 | D. Pa. | 1795
The laws of the Rhodians were followed and adopted by the Romans, in their most prosperous state of commerce and power. Those in the celebrated Consolato del Mare,
I shall not contend with those who say, we ought to have a maritime code of our own, about the binding force of all these laws on us. By the general laws of nations we certainly are bound. These apply, most frequently, in the prize court; but there are many eases of salvage, wreck, &c. on the instance or civil side of the court, which necessarily must bo determined under the general law. The wisdom and experience, evidenced in the particular maritime institutions of other commercial countries, ought at least to be greatly respected. If they serve only as faithful guides, and tried and long established rules of decision, in similar cases, they are of high and exemplary importance. It must be granted, that it is safer to follow them, than to trust entirely to the varying and crooked line of discretion.
Where a reciprocity of decision, in certain cases, is necessary, the court of one country is often guided by the customs, laws, and decisions of the tribunals of another, in similar cases. But the change in the form of our government has not abrogated all the laws, customs and principles of jurisprudence, we inherited from our ancestors, and possessed at the period of our becoming an independent nation. The people of these states, both individually and collectively, have the common law,
II Consolato del Mare. These are the most ancient, celebrated and authentic sea laws, after those of the Rhodians. Greeks, and Romans. Yet Hubner. because he found (as Emerigon alleges), a passage in them contradictory to a favorite dogma, vituperates and deprecates them, to his own disgrace, and not to their disparagement. As a respectable part of the laws of nations. they have always been received in the English courts of admiralty, and those of this country. Their origin is enveloped in obscurity, though attributed to several nations, as well as to the Pisans, to whom a modern author la-bours to ascribe them. Their influence, value and authority, have been appreciated by claims to their origin, set up by various people of maritime countries. Those laws have prevailed in the countries occupying the coasts of 'the Mediterranean. and in the neighbouring parts of Southern Europe, for centuries. Although some special and local laws exist, in several national districts of that region, yet the Consolato del Mare is. to this day. the leading directrix, in their maritime jurisprudence, and naval affairs. This body of maritime law i» a compilation “of the best maritime laws then existing, comprising judicial proceedings, principles and decisions. settled by men of great experience and consummate prudence; who. having reason and custom for their guides, established these excellent regulations, concerning navigation and maritime contracts.” It may, indeed, be called the “Common Law of Maritime Europe,” where it is universally adopted and respected.
The city of Amalfi was situate in. what is now called, the province of Salerno, in the kingdom of Naples. Nothing great remains of it, but its celebrity for the most extensive commerce of its time, its immense wealth and magnificence. and its great weight in all questions of maritime concern. Like the Rhodians, the Amalfitans furnished principles for the codes of other maritime countries of Southern Europe. These remain engrafted into the laws of other nations; though the Amalfitan Code. or. as it is sometimes called, “Table.” is not preserved. To the Amalfitans. the invention of the mariner’s compass is ascribed. Dr. Robertson gives the discovery to a native of Amalphi. But no opinion about ancient transactions, seems to be at rest. Azuni says, the French invented — the Amalfitans improved — and the Portuguese perfected. this compass, in their discoveries of the New World. The Chinese forestall the whole, in the antiquity of their claims, to this most eminent of all useful inventions. The Pisans and the Amalfitans share the credit of the discovery and preservation of the Pandects of Justinian, after their having been long buried in obscurity, during the barbarous ages.
The laws of the Hanse Towns were published first in 1591, and reviewed in 1614, and posterior to those of Wisbuy or Oleron. The history of this commercial confederacy is well known. Although in itself and its dependencies, it consisted of 02 cities, originally, it is now reduced to six. consisting of Lubeck, Ham-burgh, Dantzig, Bremen. Rostock, and Cologne. Its existence to this day. in • any state of respectable combination, is a singular instance of survivorship over the ravages of time, the jealousies of powerful nations, and the exposure to interior danger and dissension; to which all multitudinous associations, whether national or individual, are constantly, often fatally, liable.
In a note to the case of Walton v. The Neptune [Case No. 17.135]. it will appear, that Azuni, in his book on Maritime Law collects all the authorities for and against the authenticity of the fragments of Rhodian laws, published by Simon Scardius and others, and continued to our time, in collections of sea laws as gen-nine. Azuni declares them spurious. But although, according to him, these may not be genuine, as to the text and very words (which other respectable writers either impliedly ór positively assert they are) they contain many of the principles we see in other codes and works. Azuni allows, agreeahly to a cloud of authorities he could not controvert, that “the Rhodian Laws, whatever may be the period of their pub-iication, are the fountain of maritime jurisnrn-dence.” 1 Azuni, Mar. Law (New York Ed. 1806) 277. The Rhodians applied themselves ex-clnsively to commerce, and avoided every idea of extension of territory. Their fleet was so powerful, and their naval regulations so excellent, that they were courted by the most mighty nations of their time They held the empire of the sea, and by confining their strength and resources to maritime objects, they not only protected and extended their own commerce, but scoured the ocean of pirates who annoyed the trade of all countries. Alexander the Great treated them with marked distinction. The Romans were their admirers, allies, and friends. These powerful islanders entitled themselves to the friendship and esteem of other commercial nations, by aiding and protecting, and not by restraining similar pursuits. Their superiority, in mercantile and naval talent and enterprise, gained them the admiration and respect of their contemporaries; when a spirit of monopoly, jealousy and plunder, would have handed them down to us. nof to be imitated, but detested.
The foregoing enumeration of some of the maritime codes, is not intended to comprehend the whole, which would swell the account too extensively. It is given merely to shew, that the most renowned maritime nations always adopted the principles, when long tried and tested, of their predecessors, or contemporaries. England has not collected into a body, or code, the maritime laws by which she deems herself bound peculiarly, though she has enacted some laws, in addition to the laws or judgments of Oleron: such as the statute De Mercatoribus, the articles of Quinsborough. the acts relative to the powers of the admiralty, her navigation act, prize acts, &c. Her law merchant, and that part of it relating .to assurances particularly, as well as maritime law, are chiefly collected in the decisions of her courts. These are founded on usages and established customs, as well of her own, as of all countries possessing respectable codes or principles of maritime la w. When they arc duly canvassed, and have stood the test of time and sound discussion, they become part of their common law. and settled as precedents of indisputable authority. In their courts, respectable foreign jurists and publicists are cited, and their reasonings, opinions, and statements regarded, in the decision of maritime auestions* Such has also been the practice in the courts, particularly of maritime jurisdiction, of our country. Holland, though its existence depended on commerce, has never had any peculiar national code of maritime laws, — possibly owing to the division of her territory into separate provinces.
The feudal parts of this law, and such as are inconsistent with the principles of our government are not. nor can they be, in force. Those who are best acouainted with its wise and just principles, as they relate to contracts, and the property, as well as the personal rights of individuals, admire the common law as the
The conditions of bonds, or considerations of promises, or agreements in contracts accounted illegal and void, are numerous and well known to lawyers. A contract cannot be legally binding which defeats its own object — such as that no suit shall be brought at all for a bona fide debt, agreed to be paid — a condition in a deed to do'an act malum in se, as to beat, or kill a man, or commit any crime — insurance on a illegal voyage — bonds for general restraint of trade are void, though good where the condition is not to carry it on in any particular place —a bond to a third person that the obligor, a witness, shall not prosecute one confined for felony, perjury, &c. and many other instances which might be given. A bond with impossible conditions is absolute, and the condition a nullity. An agreement or contract not to bring a suit to enforce performance is, if made at the time, well. But if made posterior to the bond, contract or agreement, it amounts to a general release.
The cause, in which the foregoing opinion was delivered, was of a mixed character. Part of the complainants were foreigners, and bound to return home with the ship, although with a view to sail out of our port, at our high wages, they endeavored on pretext of deviation, to obtain their discharge. The cause was dismissed as to them — they were referred to their own courts for decision. "Wages were decreed to two American seamen, who were by contract to be discharged here. In the case of Willendson v. The Försöket [Case No. 17,682], the principles adopted by the court, relative to foreign seamen, are further elucidated and explained.