Page images
PDF
EPUB

unknown to us, if they had not been preserved incidentally in the eloquent pleadings of Demosthenes. In like manner we are indebted to Julius Paulus, Papinian's scholar, who lived in the reign of Alexander Severus, for the preservation of a fragment of the Rhodian Law on the subject of Maritime Jetison in terms, which are almost conclusive that he had before him the text of a written law on that subject. Further, there is evidence of a still earlier period, preserved in a fragment of a Law Manual, which was compiled by Volusius Mæcianus* for his Imperial pupil Marcus Aurelius, that the Rhodian Sea Laws were received in writing at Rome in the reign of the first Augustus, and that they were declared by that Emperor to be of paramount authority in matters of the Sea, where they were not in conflict with any Imperial-Ordinance.

The city of Rhodes, the walls of which, according to Strabo the Geographer, were built by the same architect who constructed the Long Walls, which connected Athens with the Piræus, was the capital of an Island, which Nature had admirably fitted to become a great centre of commerce between the western and the eastern ports of the Mediterranean, at a time when the ravages of the Cilician pirates rendered access to the Syrian harbours a work of great danger. The Island of Rhodes may be regarded as occupying in the fourth century before Christ a position

civile distributum esse videtur: nam origo ejus ab institutis duarum civitatum, Athenarum scilicet et Lacedæmoniorum, fluxisse videtur. In his enim civitatibus ita agi solitum erat, ut Lacedæmonii quidem magis ea, quæ pro legibus obser. vabant, memoriæ mandarent; Athenienses vero ea, quæ in legibus scripta com. prehendissent, custodirent.” Justiniani Institut., Lib. i, Tit. ii, Sec. 10.

* The well-known passage is in the Greek tongue of the Augustan period. The Emperor Antonine is reported to have made answer to the petition of a certain Eudæmon of Nicomædia, who complained of having had to pay custom duties on certain goods, which had been salved from a vessel wrecked on one of the Cyclades Islands, Eyù pèr Toù koopov KVPLOS, é de vóuos της θαλάσσης. Το νόμω των Ροδίων κρινέσθω το ναυτικό, εν οις μήτις των ημετέρων αυτω νόμος εναντιούται. Τούτο δε αυτό και ο θειότατος Αύγουστος έκρινεν.

in the commerce of the Mediterranean very similar to that, which the Island of Gotland occupied in the twelfth century after Christ in the commerce of the Baltic, when Wisby, the capital of the latter Island, became the emporium of the trade between the ports of the North Sea and the ports of the Gulf of Finland, through which the trade of Western Europe with Northern Asia was carried on. It is perhaps not too bold a conjecture to suppose, that the affluence to Rhodes of mariners of all nations, as it created a necessity for tribunals to settle their disputes, so it afforded a facility for reducing into writing their maritime customs, and hence a body of Customs of the Sea was compiled, which formed the substance of the celebrated Rhodian Sea Laws. But Rhodes had also a well-merited fame for having checked the practice of piracy in the Seas of the Levant, before the Island became the ally of the Roman Republic, and the circumstance that Pompey the Great, after that alliance had been concluded, undertook and accomplished the task of exterminating the Cilician pirates may be attributable, in some respects, to the early lessons, which he had received from Aristodemus, a grammarian of Rhodes, who was the præceptor of his youth.

There has been handed down to our times a collection of Sea Laws, under the title of Νόμος Ροδίων Ναυτικός, which some writers have accepted, but which have no just claim to be received, as the original Rhodian Sea Laws. The earliest extant MS. of these Sea Laws is preserved in the library of the Vatican at Rome, and is in a hand of the twelfth century, and the same volume contains a code of Laws drawn up in the same century for the Greek inhabitants of the Island of Cyprus, to which the Sea Laws are appended. M. Pardessus* inclines to the opinion

• Collection de Lois Maritimes antérieurs au XVIIIme Siècle, Tom. i., p. 220. M. Pardessus grounds his opinion chiefly on the fact, that there is no reference in these Sea Laws to any provisions of the Basilica, whilst there are frequent references to the Digest and the Code of Justinian.

that these so-called Rhodian Sea Laws belong to a period antecedent to the Basilica, and M. Heimbach in his recent and most valuable edition of the Basilica, in other words, of the Laws of the Eastern Empire as compiled in the reigns of the Emperor Basilius the Macedonian, and his son Leo the Wise (A.D. 880–886), has inserted these Sea Laws, as forming part of the fifty-third book of that compilation. There are some grounds for the opinion, that these Sea Laws were drawn up in their present form in the sixth century after Christ, but to whatever period they may be properly assigned, there are such remarkable differences on the subject of maritime jetison between these Sea Laws and the provisions of the Lex Rhodia de Jactu, as cited in the Digest of Justinian,* that we are justified in pronouncing them not to be identical with the Sea Laws, which were received at Rome under the name of the Rhodian Sea Laws in the early days of the Empire. For instance, the 30th Article of these Sea Laws provides, that in cases of shipwreck, where the vessel is lost, such portions of cargo as may be saved shall contribute to make good the loss of the ship, which is contrary to the provision of the Lex Rhodia de Jactu set out in the Digest, and according to which no contribution whatever in such a case is required from the cargo. This and other discrepancies on the subject of general average, which are found to exist between the earlier and later texts of the Rhodian Sea Laws, are deserving of attention, as they enable us to identify, in the earlier body of these Sea Laws the groundwork, upon which an uniform system of Maritime Law was maintained in Western Europe after the Fall of the Western Empire. The maintenance of such an uniform law was favoured by the principle sanctioned by the Ostrogothic Code of Theodoric (A.D. 500),t namely, that in the . * The second title of the Fourteenth Book of the Digest is headed, “ De Lege Rhodia de Jactu.” All that is trustworthy in the way of tradition as to the famous Rhodian Sea Laws is to be found under this title of the Digest.

+ These laws are generally entitled, “ The Edict of Theodoric.”

absence of other rules to be found in that code the customary rule of law (legum usualis regula) should be observed by every person, whether of Gothic or of Roman origin. There can be little doubt that the traditions of Imperial Rome are also discernible in the Maritime Laws of the Visigothic monarchs of Spain. There is, however, a notable difference to be observed between the practice of the Ostrogoths in Italy, who maintained the Roman principle, according to which foreign merchants and mariners were allowed to have their disputes settled at Rome, according to their own laws, by Roman Magistrates ; and the practice of the Visigoths in Spain, who adopted the Greek* principle, according to which merchants and mariners were allowed to have their disputes settled in foreign countries, according to their own laws, by their own judges. The former of these systems may be styled, for convenience, the prætorian ;t the latter, the consulars system. The former was adopted in the Atlantic seaports north of the Pyrenees, where the Ostrogothic element prevailed, and it was accepted in England and in the ports of Flanders at the earliest period, of which we have any certain knowledge, whilst the latter prevailed in the Mediterranean seaports, and in the ports of the Levant, where it perhaps had its original home. The former system was adopted by States in the exercise of their own free will; the latter was, for the most part, the result of international agreement; and it is a curious circumstance, that,

* The earliest historical record of the legal autonomy of a trading factory established in a foreign land, is to be found in the special privileges granted to the Greek merchants who frequented the port of Naucratis, in Egypt, in the reign of King Amasis, B.C. 526. Herodotus, Lib. ii., ch. 178.

+ From the brætor peregrinus of Rome, whose office was established B.C. 246, and who administered justice amongst foreign merchants, and between foreign merchants and Roman citizens. : | From the mediæval consul, who is of Spanish or Italian origin, and who accompanied every merchant ship engaged in foreign trade in the Levant, and who administered the Law of the flag amongst the merchants and mariners on board, and whilst they were commorant in foreign ports.

when the merchants of Northern Europe, through the active enterprise of the mariners of Wisby, opened a trade with the distant East through the Gulf of Finland, they stipulated for privileges at Novgorod, then the centre of Russian commerce, similar to those which the merchants of the South of Europe enjoyed in the cities of Syria and of Egypt. In evidence of this early practice a Latin treaty of the thirteenth century may be cited, which has been preserved in the archives of Lubeck, which records the grant of special privileges to the Teutonic and Gothic merchants and mariners frequenting Novgorod, with reciprocal liberties to the merchants and mariners of Novgorod, who should frequent the island of Gotland; amongst which privileges it was provided that they might have their disputes settled according to their own laws by their own judges.* It is to a like condition of commercial intercourse, that we are indebted for the preservation of many Northern Sea Laws in MSS. of the fourteenth century, inasmuch as written versions of those laws were needed for the guidance of the Maritime Judges in foreign ports. It is likewise a remarkable fact, illustrative of the: extent to which a common Maritime Law was received throughout Europe, after Rome had ceased to be its, Imperial mistress, that in a body of Russian Law, termed Pravda Rousskaia, or Pravda Slavian,* which was promul. gated at Novgorod in the eleventh century, there is found a Law on the subject of stealing ships or boats, which is identical in its provisions with a Law of the Burgundian Code of the sixth century, and with a Law which is found in the earliest Code of Laws reduced into writing at Lubeck in the twelfth century, and also with a Law, which has found a place amongst the Sea Laws of Wisby.

• The text of this treaty is published in Dreyer de Inhumano Jure Nau. fragii, p. clxxvii.

* M. Pardessus, Tom. iii., p. 490, is an authority for the existence of this Law.

« PreviousContinue »