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SOURCES OF MARITIME LAW.
though but in fragmentary form, under the name of the Rhodian Law.
But the ancient sea-laws or maritime codes usually referred to and relied upon as authority, are chiefly known as
1. The Laws of Wisbuy ;
Others, indeed, are occasionally referred to, such as that of Philip II., of Spain, and the Consolato del Mare, embodying the usages and regulations of trade, particularly as applicable to the Mediterranean Sea, in the Middle Ages; but they embody no novel or valuable principles of maritime jurisprudence, which are not also to be found, and as well, or better expressed in either the codes of Wisbuy, Oleron, the Hanse Towns, or the Ordinance of Louis XIV.
Therefore, in the preparation of this work, while seeking great principles, and in the absence of reported decisions, our references will be made mainly to the four compilations known and designated as the Foreign Ordinances; and occasionally, perhaps, to some elementary works of European jurists, and English and American writers and magistrates.
Many works have been published upon the subject of international law and rights and dominion over seas. A limited enumeration of such as treat of nautical or naval rights shall be incorporated here for the general convenience of the student; it might easily have been enlarged and made more minute.
John Selden was an Englishman, who published, in 1635, his work entitled Mare Clausum. This was, doubt
WRITERS ON MARITIME LAW.
less, written by its author in reply to the Mare Liberum, a treatise written and published by Hugo Grotius, some ten years before. From this cause, these two great minds were afterward placed by their contemporaries in a quasi condition of rivalry, while their respective works have continued to benefit and instruct posterity, and gladden the heart and excite the emulation of the zealous student of jurisprudence, both in Europe and America.
Another Englishman, Professor Richard Zouch, wrote De Jure Nautico, and published it in 1650, when he was about sixty years of age. He was a distinguished civilian, Regius Professor of Laws at Oxford, Warden of the Cinque Ports, and Judge of Admiralty. This work is highly valuable, and has been frequently referred to by eminent judges, and particularly so by Mr. Justice Story. Richard Zouch was born in 1590 and died in 1660. His works on maritime jurisprudence were written in Latin.
About the same period, 1651, was published De Jure Maritimo et Navali, a work written by Johannes Loccenius, a professor of Sweden.
And another treatise under the same title, written by Charles Molloy, an Irishman, first appeared in 1666.
In 1702, Cornelius Van Bynkershoek, of Zealand, put forth his work entitled De Dominio Maris.
In 1760 was published Commentaire sur l'Ordonnance de la Marine, a work written by that eminent European scholar and jurist, René Josué Valin ; and 1763, Tracté de Prises, by the same author, this latter having been published only two years before his death.
Joseph Laurentius Maria de Casaregis was born in 1670 and died in 1737. During his life, he gave to the
WRITERS ON MARITIME LAW.
world the Discursus Legales de Commercio ; a second edition was published after his decease, in 1740.
The work Droit Maritime de l'Europe was written by Dominico Alberte Azuni; and it is a work to which frequent reference has been made in maritime cases. Its author was, by birth, a Sardinian ; born in 1760, and died in the year 1827.
In 1803, Thomas Hartwell Home published a Compend of Admiralty Decisions. A Digest, by William T. Pritchard, was published in 1847 and 1848. This has been enlarged by its author, assisted by Dr. Pritchard, and a new edition published in 1866. In its present form, it is a most valuable and convenient work on admiralty.
Wicquefort's La Ambassadeur et ses Fonctions, as well as Miltiz's Manuel des Consuls, are useful for examination, in considering the subject of maritime jurisprudence.
In this brief review of works on maritime law, that of J. M. Pardessus, entitled Us et Coutumes de la Mer, ought most assuredly to be mentioned.
But, not to be too minute in this reference to the sources of instruction for the student of marine law, it may not be inappropriate to recall likewise the names of other jurists and magistrates, who, both in England and the United States, are often referred to with respect in admiralty causes, alike on the instance and prize sides of admiralty courts.
Since the time when Sir James Marriott presided over the High Court of Admiralty in England, his successors in that office have been conspicuous for their learned labors, judicial capacity, singular experience, and consummate mastery of admiralty law. Sir Wil
liam Scott (perhaps better known by his later title, Lord Stowell) was the immediate successor of Sir James Marriott. Lord Stowell was, perhaps, as free from national vanity and prejudice as it is possible to suppose an Englishman to be; and the decisions of this great magistrate, as reported by Christopher Robinson, Edwards, Dodson, and Haggard, will ever remain a monument and recorded evidence of his extensive legal learning, varied classical culture, and sound, and generally correct judgment in judicial proceedings.
From 1799 to 1867, the High Court of Admiralty in England was presided over by only four admiralty judges — Stowell, Robinson, Nicholl, and Lushington; all admirably qualified for that station by previous training as King's advocates, or fitting experience in the practice and proceedings of that court. The first and last each occupying the position twenty-nine years; the second
; and third respectively four and five years each. Lord Stowell held the place from 1799 to 1828, when he was succeeded by Sir Christopher Robinson, who pronounced his first decree in March following, and administered the duties of the station from 1828 until 1833. He was succeeded by Sir John Nicholl, who filled the office from 1833 until 1838, when he was succeeded by Sir Stephen Lushington, who resigned in 1867; when the place was filled by the appointment of Sir Robert J. Phillimore, the present incumbent.
How much Lord Stowell contributed to establish a consistent practice in prize proceedings may be gathered from the cases reported in the earlier volumes of the regular series of English Admiralty Reports. But it is no exaggeration to state, that the chief merit of the present improved practice and enlarged jurisdiction of
ADMIRALTY CASES AND COURTS.
the English High Court of Admiralty is essentially attributable to Dr. Stephen Lushington.
The present judge (Sir R. J. Phillimore) has not been sufficiently long in office to enable those at a distance to pronounce upon his judicial merits. He has merits as a writer on public law and practitioner in the civil law. With antecedents favorable, promising ability, and conceded experience, it may well be hoped that, when the future reports of Browning and Lushington or others appear in print, the cases containing decisions of the present judge will compare not unfavorably with those of his predecessors.
During this succession of English judges in admiralty, either by adjudications or legislation, the admiralty law has been moulded into its present shape; and, so far as the law or practice has been ameliorated or improved, the merit thereof is mainly due to the assiduity and labors of Dr. Lushington.
And now, the admiralty law and practice of England differs but little from that of the United States, in regard to the class of causes of which admiralty has usually taken cognizance; save only, that, in this country, locality has totally ceased to be a test of jurisdiction, in hearings before the United States Supreme, Circuit, and District Courts; and it does not now appear that, in England, such jurisdiction was ever claimed, or cognizance taken in the High Court of Admiralty over policies of insurance, as has been claimed and taken in the Circuit and District Courts of the United States First Circuit, since 1815. The question, however, as there raised, has never been solemnly decided by all the judges of the United States Supreme Court; and, having occasioned a great variety of opinions certainly, if not