Puslapio vaizdai

law, or as of positive authority in questions of the lex loci contractus.

An interesting life of Pothier, collected with care from all the sources accessible in this country, is prefixed by Mr. Cushing to his translation. The following extract presents us with some personal anecdotes of this illustrious jurist.

• In the course of his long life, a short journey to Rouen and Ilavre was almost the sole interruption, which he voluntarily made, in the regular routine of his pursuits. While he was composing his great work on the Pandects, he was obliged to withdraw for a short time from his business, and retire to Lu* for the benefit of repose and solitude. After he was appointed professor, he commonly spent the vacations at the same place, and was most assiduously employed at a time which others devoted to relaxation. Many of his treatises proceeded from Lu. His only amusements there were short walks after he had dined or supped, occasional visits, and riding on horseback, an exercise for which he acquired great partiality:

• He never indicated the least disposition to marry, saying that he had not sufficient courage for it, and that he wondered at those who had ; thinking, besides, that celibacy was the wisest course for one who was frugal of his time and was exclusively devoted to tranquil and studious retirement. That he was thereby enabled to execute more is indubitable; since the very felicity of a married life would have drawn him away from less agreeable occupations, and diminished his opportunities for extended usefulness. No person ever availed himself more fully of his exemption from the cares of a family; for he was too careless of money and indifferent to the means of increasing his property, to attend to the management of his domestic affairs. He gave it up altogether to his servants, who governed his house, directed its expenses, and relieved him from every thing which did not indispensably demand his personal interposition. The same disregard of domestic concerns appeared, also, in his exterior, which was always neglected, and in his cabinet, where all his books and papers were thrown about in the greatest disorder. A man of such habits would obviously never seek after riches. This indifference for wealth did not proceed from the greatness of his fortune, which, however, was sufficient for his purposes; but from the disinterestedness of his character. In fact, he considered his superfluous possessions the patrimony of the poor as much as of himself; and therefore his charities were unwearied and boundless; he denied himself

• 'Lu is a town belonging to the dutchy of Montserrat in the north of Italy.'

all the luxuries of life, and sometimes almost its necessaries, that he might have the more to give in alms; so that the inscription over his grave was literally true, that for the sake of the


he himself submitted to live in poverty.

• Although second to none in that essential politeness of the heart, which consists in being indulgent towards the faults, and scrupulous of injuring the feelings, of others, he was destitute of all exterior politeness and elegance of manners acquired from intercourse with polished society. His diffidence was excessive and always rendered him timid and embarrassed in the company of strangers. His body was tall in stature, but ill-connected; in walking, it inclined on one side, and his gait was singular and inelegant; he sat with his legs twisted together in the most ungainly manner; and there was a peculiar awkwardness in his whole figure, conduct, and deportment. His manners were, therefore, so little prepossessing, that a transient acquaintance would have tended to weaken, rather than confirm, a person's respect for his character; and although the goodness of his heart and simplicity of his feelings would soon become apparent to strangers, it would be long, before they would perceive any thing in his ap: pearance answerable to the greatness of his reputation. pp. xxxi Xxxiii.

It was our design to have entered into the examination of some of the points of law, which form the subject of the notes, but we find none perfectly adapted to discussion in our pages. On page 147 is a curious note on the question, whether negro slaves might be thrown overboard to lighten a ship. The last and longest of the notes contains a very learned and useful sketch of the history of maritime law and an account of the treatises on this subject. We extract the first part of it.

Note 55, P. 136. The author of the foregoing work exhibits, at every step, a profound knowledge of his subject, and a knowledge which could not have been acquired without very extensive reading; but as he seldom cites any authority except the Pandects, the Marine Ordinance and Valin's Commentary ; it may be well to take a view of the sea-laws and treatises, from which Pothier drew his opinions, and which constitute the foundation of our maritime jurisprudence.

• The most ancient system of marine laws referred to by wri. ters is that of Rhodes. The people of this island acquired commercial reputation at an early period, and the usages, which they followed in the regulation of maritime affairs, were so wise and just, that they were adopted by Rome as soon as she had extended her dominion beyond the boundaries of Italy. (Gravina, De Ortu Jur. Civ. p. 756 et seq; Emérigon, Assur. préf. ; Cicero pro L. Manil. c. 18.) It is doubtful whether the Rhodians ever possessed a written code of these laws; and the pretended collection of them, which for a considerable time imposed on the literary world, (Sea Laws, p. 76 et seqq.) is now generally acknowledged to be spurious. (North Am. Rev. vii, 325, 226; Peters' Adm. Decis. ii. 479.) Indeed the Rhodian laws, as we learn from the famous rescript of Antonine, (Digest. lib. xiv, tit. 2, l. 9.) were a species of common or international law in the Mediterranean. (Grotius de Jure Belli ac Pacis, l. ii. c. 3.) The spirit of these laws was gradually incorporated into the Roman law, until they came to form the substance of the maritime laws of Rome. (North Am. Rev. vii, 327 ; Selden. Mare Clausum, lib. i, c. 10, s. 5; Sueton. Vita Tiberii Claudii ; Schomberg's Obs. on Rhod, law ; Park on Insurance, introduc. p. 3, 7; Pastoret. Dis. sur l’Influence des Loix Maritimes des Rhodiens ; Bynkershoek, ad leg. Rhod. c. 8; Heineccius, His. Jur. Civ. Roman. Germ. ; Azuni's Maritime Law, pt. i, c. 4, art. 2; Boucher, Consulat de la Mer. tit. i, liv. 1, c. 2, 4.)

• The next authority, therefore, on which the modern commercial law stands, is the Roman law, as it exists in the Digest and Code of Justinian. The general principles of justice, which the civil law teaches, are the soul of all our international and maritime regulations at the present day; and although the titles in the civil law exclusively devoted to nautical concerns are few in number, yet their sound wisdom, compressed sense, and apposite illustrations entitle them to the greatest consideration. Pothier, we have seen, adduces them whenever he has an opportunity, The most important of these titles in the Pandects are L. iv, tit. 9, Nautæ caupones, stabularii, &c.; L. xiv, tit. 1, De exercitoria actione ; L. xiv, tit. 2, De lege Rhodia de jactu ; L. xxii, tit. 2, De nautico fænore; L. xlvii, tit. 5, Furti adversus nautas, &c.; L. xlvii, tit. 9, De incendio, ruina, naufragio, &c. ( Azuni's Maritime Law, i, 296 et seqq.; Boucher, Consulat, &c. t. I, p. 25 et seqq.) These titles, with the commentators on them, will be found to be of the very first utility to the commercial jurist. A translation of these titles into English is contained in Hall's Law Journal. (See also Hall's Emérigon, ap.)

• During the middle ages, as cor merce revived in the different states bordering on the sea, each one, for a time, followed its own peculiar usages,-for laws they had none at this period of ignorance and superstition. As these states increased in wealth and power, their maritime usages began to assume a more distinct form, and were at last wrought into several written codes. These codes were not created in a moment, nor were they acts of peculiar legislative wisdom; but the principles in them slowly grew

up in the courts and commercial practices of several countries, and acquired confirmation from experience. (North Am. Rev. vii, 328, 329.)

The first modern code of sea-laws was compiled in the latter part of the eleventh century by the people of Amalphi, one of those numerous cities in Italy, which attained so much wealth and eminence in the pursuit of maritime commerce. (Park, Sys. of Insurance, int. p. 24; Marshall, Treat. on Insurance, p. 11; Azuni's Maritime Law, i, 376.)

Other states bordering on the Mediterranean followed the example of Amalphi; and in a short time one of them produced the curious and valuable collection of sea-laws called the Consulate of the Sea, which was probably compiled about the time of the crusades, (Grotius, de Jure Belli, l. 3, c. 1, s. 5; Marquardus, De Jure Mercat. c. 5, n. 59; Vinnius, ad Digest. xiv, 1, 2, p. 190; Crusius, Opusc. Com. in leg. Rhod. de jactu ;) but by whose authority is altogether uncertain. The prevailing opinion is that, which traces its origin to Barcelona. (Capmany, "Codigo de las Costum. Mar. de Barcelona, disc. del. edit. ; Idem. Mem. sobre la Marina, Commercio y Artes de Barcelona, pt. ii, lib. 2, cap. 2, p. 107 et seqq; Boucher, Consulat de la Mer, tom. i, liv. i. See however Azuni's Maritime Law, pt. 1, ch. 4, art. 8.) Wherever it was written, it soon attained great celebrity, and in the elev. enth and twelfth centuries became the maritime law of the whole Mediterranean. (Targa, Ponderazione, c. 96; Emérigon, Des Assurances, préf. ; Casaregis, Disc. 4, 6, 19, & 213. North Ame Rev. vii. 529; Lubeck, De Jure Avariæ, p. 110; Card. de Luca, de Credito, dis. 107. n. 6.) The title of this remarkable collection was derived from the name of consulate, which then belonged to the maritime courts in the South of Europe. (Ducange, Gloss. S. voc. Consul ; Azuni's Maritime Law, i, 331; Boucher, Consulat, t. i, p. 379 et seqq.) Some difference exists among learned men as to the value of the Consulate, and all agree that it is a confused, inexact, and ill-arranged collection. (Hubner, De la Saisie des Bátimens neutres, dis. prél. p. 11; Bynkershoek, de Reb. Bellic. c. 5, Duponceau's tr. p. 44.) Indeed it would be absurd to suppose that, at the tirne when it was compiled, any considerable judgment in selecting, skill in arranging, or precision in expressing nautical usages, could have been possessed by men just emerging from total barbarism. The single merit of it is, that, among many trivial and many unjust rules, it contains some of obvious utility and importance, which experience suggested and sanctioned. (North Am. Rev. vii. 330 ; Marshall on Insurance, p. 15, 16; Park on Insurance, int. p. 25; Valin, Nouveau, Commentaire préf.; PetersAdm. Decis. i, 106; Azuni's Maritime Law, ubi supra.) At present, however, it is interesting chiefly as an object of curiosity; because it has been superseded, by more valuable codes ; since the very wisdom of its provisions by causing them to be sought after and adopted by legal writers and legislators, has proved the means of rendering the study of them unnecessary. "The oldest known version of the Consulate is in the dialect of Catalonia, from which it was translated into Spanish, Italian, German and French. Some of the most eminent modern jurists have published editions of the Consulate, Casaregis in Italian, Westerven in Italian and Dutch, and Capmany in Spanish. The best edition is the translation in French by Boucher, which is preceded by a volume of very learned, but crudely compiled, illustrations. (Boucher, Consulat de la Mer, 2 tom. in 8vo, Paris, 1808.)

At the same time that the customs of the sea inserted in the Consulate were in credit on the coast of the Mediterranean, Elinor, duchess of Guienne and queen of England, soon after her return from the Holy Land, drew up a compilation of judgments, entitled the Roll or Judgment of Oleron, from the name of her favorite island, which her son Richard afterwards augmented and promulgated as the maritime law of Guienne and England. Cleirac, Us et Coutumes de la Mer, p. 2; Sea-Laws, p. 116, 118; Selden. de Dominio Maris, c. 24 ; Morisot, Histoire de la Marine, l. 1, c. 18; Fontanon, Ordon. Roy. tom. iii, p. 865 ; Blackstone's Com. iv, 423; Peters' Adm. Decis. i, ap. p. 3; Schomberg's Obs. on Rhod. Law, p. 88; Park on Insurance, int. p. 26, 27 ; Boucher, Consulat, t. i, c. 18—20.) The Roll of Oleron was amended and published anew by John, Henry III and Edward III, and, as contained in the Black Book of the Admiralty, constitutes the basis of the admiralty law of England. (Brown's Civ. and Adm. Law, ii, 40.) As it was originally compiled for the dutchy of Guienne, then a great fief of the kingdom of France, and compiled by a vassal of the crown, it has always been claimed as their own by the writers of France. (Emérigon, Des Assurances, préf. ; Valin, Nouveau Commentaire, préf. p. 377 et seqq.) The Judgment of Oleron was composed in Gascon French. It forms the first part of Cleirac's Us et Coutumes de la Mer, who has accompanied it with an excellent commentary. An English translation of it was published in the Sea-Laws, (p. 120 et seqq.) and republished in Peters' Admiralty Decisions.

(vol. i, ap. n. 1.)

The next important collection of sea-laws is that of the Ordinances of Wisbuy. Wisbuy was formerly a rich and powerful city in the Swedish island of Gothland, and the most renowned market and fair in the North of Europe. (Olaus Magnus, Histor. lib. x, c. 16; Sea-Laws, p. 124 ; Peters' Adm. Decis. i, ap. p. 69; Emérigon, Des Assurances, préf. 11; Boucher, Consulat, &c.

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