« AnteriorContinuar »
ADMIRALTY CASES AND COURTS.
a conflict of decisions, it still remains an open question and ought, in some way, to be permanently settled.
With these exceptions as to tests of jurisdiction, both the course of proceeding in admiralty and the subjects embraced within its jurisdiction in England and the United States, are very nearly, if not quite, identical. Admiralty jurisprudence, like the law of insurance, is measurably of modern growth. In England, Lord Stowell judicially led off; and, in this country, Mr. Justice Story; and both contributed materially to define, settle, and establish the practice and jurisdiction of admiralty courts, as now understood and recognized in the two countries.
In the United States, the first, second, third, fourth, fifth, and sixth circuits include those harbors and ports of entry, where the people are most absorbed in commercial pursuits; and in which, accordingly, cases of admiralty and maritime jurisdiction were most likely to occur.
In these circuits are severally located the commercial cities of Boston, New York, Philadelphia, Baltimore, Charleston, Mobile, Savannah, and New Orleans; and there have usually arisen the leading cases on the subject of admiralty in general, as well as those, in particular, in which questions of jurisdiction have been, in the first instance, started, and which were afterwards heard and decided in the Supreme Court, some one of the several district courts of the six enumerated circuits having originally assumed or declined to exercise jurisdiction.
The reports of cases in admiralty, in this country, will be found arranged in a tabular statement contained in Appendix marked (A); also the names of all the per
sons appointed or nominated to be judges of the United States Supreme Court, and other principal law officials from the year 1789 to the present date; together with a connected series of British Admiralty Reports, at least from 1799.
It has already been observed, that those nations of Europe, known, in modern times, as the Great Powers, did not originate the maritime codes, known as the Foreign Ordinances ; nor have these states, though wielding great political sway, until the present century, contributed materially to enlarge, improve, or qualify the leading ideas and general principles of maritime jurisprudence, which are so tersely expressed and lastingly embodied in the insular productions of Rhodes in the Archipelago, Gothland in the Baltic, Oleron in the Bay of Biscay, and the Hanseatic code of the free cities or republics near and adjacent to the Baltic Sea.
With a slight exception, the original of the Foreign Ordinances may be justly termed insular productions. And it is, indeed, somewhat remarkable that the people of these small islands (Rhodes, Gothland, and Oleron) should have enabled themselves, by reason of their commercial enterprise and experience, to thus become, not only framers of codes, but the actual teachers and expositors of maritime law for all the rest of the European world.
To our regret, fragments only of the Rhodian law have reached us; those fragments having been preserved by being incorporated in the chapter of Justinian, entitled De Jactu, and what is thus preserved constituted but a small portion of the whole of the original code of Rhodes.
The Laws of Wisbuy were compiled about the year
1288, on the island of Gothland in the Baltic Sea, and they contain some seventy articles; as will be found by referring to such as have been published in Peters' Admiralty Reports. The author of this body of laws is unknown.
The Laws of Oleron first appeared about the year 1338, and contain some forty-seven articles. They are so called from the island where they were originally compiled, - Oleron being a small island on the west coast of France. It has been a point of animated debate among French and English jurists, whether these laws were compiled under the direction of Eleanor, Duchesse of Guienne, or her son, Richard I., of England. But neither party have conclusively established their several claims of authorship. However this may be, and however fit and tempting the topic may be to the curiosity of the antiquarian, it seems not to be particularly pertinent to the present undertaking.
The Laws of the Hanse Towns were the production of what was denominated the Confederation of Free Cities, in Northern Germany. There were three principal cities or republics (Lubec, Hamburg, and Bremen) in the confederacy originally; but, at one time, as many as eighty different cities had joined the League, and agreed to be governed by its commercial code. The Hanseatic code first appeared in the year 1597, and contained about sixty articles.
Subsequent to the publishing of the laws just enumerated, there was compiled a work in France, denominated the Ordinance of Louis XIV., published in the year 1681, divided into parts, and those parts subdivided into articles; making, altogether, about two hundred and fifty articles. This was accomplished during the ad
AUTHORS OF ORDINANCE OF LOUIS XIV.
ministration of Colbert, the eminent minister of France, in the time of Louis XIV. It is an authentic, standard, reliable, and valuable compilation ; and unquestionably embodies no inconsiderable portion of the prior codes. Besides, it is fuller than they are; more minute, and embraces additional subjects. Much of the merit of the plan is justly ascribable to the minister Colbert himself, though the chief value of its execution is doubtless due to the minister's commissioners. Who the commissioners that executed the work were, may remain, hereafter
, as heretofore, entirely unknown. There is every probability that the work was performed by some jurist appointed by Colbert, but whose name was, at the time, undisclosed ; and, at the present time of writing, remains undiscovered by writers on law.
In the seventh edition of Kent's Commentaries, vol. iii., p. 15, is this paragraph : “It is, however, an extraordinary fact, that the able civilians, and perhaps the distinguished merchants, who assumed the task of legislators, and compiled this 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, yet neither letters, nor gratitude, nor national vanity have been able to rescue their names from oblivion.” 1
1 Since preparing the text, in examining the History of France, written by Henri Martin, vol. i., p. 494, age of Louis XIV., I have met with the following passage, and shall give it entire, as translated by Miss Booth.
“ The minister who had created the French marine, crowned his monument by an admirable work.
“ Colbert, embracing by a glance all social relations, had well understood what influence a good administration of justice had upon the progress of public wealth. We have already described the essential part that he had taken in the civil and criminal ordinances of 1667 and 1669; then, how he had regulated the relations and disputes of general commerce by the ordinance of commerce in 1673. The wholly special interests and habits of ocean commerce demanded a separate constitution ; the customs of the Middle Ages, the ordinances of the 16th century, no longer sufficed the new marine.
AUTHORS OF ORDINANCE OF LOUIS XIV.
This survey of the sources whence a precise and comprehensive knowledge of marine jurisprudence may be acquired, seems to have been a useful as well as necessary introduction to the present treatise.
" For ten years Colbert had been laboring on a maritime code, through a commission, the most active members of which were the Master of Requests, Lebeyer de Boutigni, and Lambert d'Herbigni. The ordinance concerning the marine appeared in August, 1681.
“ This ordinance descends through every grade of hierarchy, from the admiral to the carpenter and caulker, and dictates the duties of each.”