(^ DUKE UNIVERSITY LIBRARY Treasure %oom CONGRESS THE LIBRARY* 1789 Class ...■3:.X-'^.:^-\ Book ;...0„B. .5. opo 1—1123 THE MARITIME LAW OF EUROPE. H-e THE MARITIME LAW OF EUROPE. BY M. D. A.AZUm, w tATE SESATOn AND JUDGE IN THE COMMERCIAL AND MARITIME COURT OF NICE, MEMBER OF THE ACADI.MIES OF SCIENCES, AT TURIN, NAPLES, FLORENCE, MODENA, ALEXANDRIA, CARARA, ROME, AND TRIESTE J MEMBER OF THE ATHENIUM OF ARTS, AND OF THE ACADEMY OP LEGISLATION, AT PARIS, AND OF THE ACADEMY OF ARTS AND SCIBNCES, AT MARSEILLES. Quid deceat, quid non ; quh virtus, quh ferat error, HoR.de Art. Poet. IN TWO VOLUMES. TRANSLATED FROM THE FRENCH. VOL I. NEW-YORK : BRINTED BY GEORGE lORMAN, 64, WATER-STREET, FOR I. RILEY & Co. ■♦■ 1806. V. \ DisTRici^ OF New-York, ss. Be it remembered. That on tlie twdftli day of April, in the thii'tjelh year of the Independence of tlie United States of Ame- rica, William Johnson, of the said District, hadi deposited (L. S.) in tliis office the Title of a Book, the right whereof he claims, as autlior, in tlie words following, to wit : '^ THE MARITIME LAW OF EUROPE, BY M. D. A. AZUNJ, Late Senator and Judge, In the Commercial and Maritime Com:! of Nice, Membei" of the Academies of Sciences at Turin, Naples, Florence. Mo- dena, Alexandria, Carara, Rome, and Trieste ; Member of tlie Atlie- neum of Arts, and of the Academy of Legislation, at Pai-is, and of tlie Academy of Arts and Sciences, at Marseilles. Quid deceat, quid non ; quo virtus, quoferat error. Wok. de Art. Poet. IN TWO VOLUMES. TRANSLATED FROM THE FRENCH. VOLUME I." In conformity to the Act of the Congress of the United States, entitled, " An act for tlie encouragement of learning, by securing the copies of " Maps, Charts, and Books, to the authors and proprietors of such copies, " during the times therein mentioned :" And also, to an act, entitled, " An Act supplementary to an Act entitled, " An Act for the encourage- " ment of learning, by seciu-ing the copies of Maps, Charts, and Books, to " the authors and proprietors of such copies, during the times tlierein " mentioned, and extending the benefits tliereof to the arts of Designing, ■' Engi-aving, and Etching, Historical and other prints." EDWARD DUNSCOMB, Clerk of the District of Nezv-York. 3 - MAY /r. /I ADVERTISEMENT, BY THE AUTHOR. 1 HE work here presented to the pub- lic is essentially diflbrent from my first performance, publislied in the Italian lan- guage, in 1795, under the tide o'^ Sis te- nia universale dei Princijiii del diritto ma- rittimo deirEurolia, which was translated, at Paris, in 1798, from the second edi- tion, published at Trieste, in 1796. Notwithstanding the inaccuracies of that translation, it has been honoured with the approbation of the public ; its prin- ciples have been cited in the national tri- bunals,(l) and it has been often referred (l) See the Opinw?i of Garaf^ member of the Council of Ancienls^ (now a Senator) on the resolution of the 25th Junuarij, 17f)9, relative to maritime cap- tures., at the sittings of tlie 22d February, 1799, pages 12, 28, and 30. vi ADVERTISEMENT, to as an authority, by legislators, by ma- ritime courts, (2) and by lawyers engaged in the study of this most interesting part of public law. Pleased with the flattering success of this production in France, I saw, with re- gret, the many errors into wliich the trans- lator had fallen, and the innumerable in- stances in which he had mistaken the sense of the author, which proved that he was not very conversant with the Ita- lian language, and much less so wdth the science of public law. It became my duty to correct the sense of the translation, by the text of that part of the original I have preserved. The present work, in which I have given greater scope to my ideas, and have recast and placed in new order the articles contained in the former publication, and to which considerable additions have been (2) See the different Memoirs to the Council of Prizes, and the numerous opinions delivered by the Commissary of the Government to the Council. ADVERTISEMENT. vii made, suggested by the existing circum- stances of Europe, required the adoption of a different title, more adapted to the new plan I had marked out. The first part is enlarged by a sketch of the origin and progress of naviga- tion, by a more full exposition of the prin- ciples, merely stated before, in regard to the liberty of the seas, and by a com- plete history of the nations who have laid claim to maritime empire from the re- motest ages to the present time. Among the new matters in the second part, the most deserving of attention, are, an article on the origin and causes of naval wars ; a succinct analysis of the late laws of the French empire, concerning mari- time captures, and of the modes of pro- ceeding in their ajudlcation in the council of prizes, established by the government, at Paris ; an account of the laws of the different powers of Europe, In regard to recaptures ; and, lastly, several other articles, exhibiting views of the sub- viii ADVERTISEMENT. ject which my experience and study of this interesting branch of the law of na- tions have shown to be necessary.'" * DoMiNicK Albert Azuni, was born at Sas- sari, in the island of Sardinia. This island is about 700 Italian miles in circumference ; its greatest length is 175 miles, and its greatest breadth, about 100. Its principal towns are, Cagliari and Sassari, each containing an university, and about 30,000 inhabi- tants. M. Azuni, in 1802, published at Paris, A Geographical, and Natural History of Sardinia^ in two volumes 8vo, a work of considerable merit, and containing much interesting information of an im- portant island, but little known to the generality of readers. His other works are, 1 . An universal Dictionary of Mercantile Jurisprudence, in 4to, printed at Nice, 1786, and 1788; 2. 4 5th vol. 4to, containing 77ie perfect Mentor of Merchants, printed at Trieste, in 1796 ; Z. A Dissertation on the Mariner s Compass, read before the Academy of Florence, in 1795, and reprinted, with additions, at Venice, in 1797. ..,T. THE TRANSLATOR'S PREFACE. JMaRITIME Commerce, while it connects the civilized nations of the world together hy the ties of mutual interest, augments the means of their prosperity and happiness, and multi- plies the sources of individual enjoyment, ren- ders them, at the same time, more dependent on each other. Physical and moral causes, of the most irresistible nature, have induced the peo- ple of the United States to engage, with uriex- ampled ardour, in commercial pursuits. This commerce, that gives animation and vigour to all the operations of industry, and without which the people would sink into indolence, or become ignorant and ferocious, as it draws them nearer to foreign countries, exposes them also to the influence of those conflicts which agitate the repose of distant nations. For it is one of the many evils of war, that its action is not confined to the immediate parties in the con- test, but strikes, with greater or less force, all who come witliin its reach. Vol.. r. 5^ ^ X TRANSLATOR'S PREFACE. Remote from the great theatre of political and miUtary ambition, the United States arc happily exempt from that direct pressure which might compel them to take part in the wars of Europe ; and they are impelled by interest and policy, to observe a perfect neutrality be- tween the belligerent nations of that continent. To maintain this fortunate and advantageous position, for a long period of time, will be at- tended with no little difficulty, and may re- quire consummate prudence and address. The surest guide, in this embarrassing situation, is a clear and accurate acquaintance with the principles by which the intercourse between belligerents and neutrals is to be regulated. Whatever relates, therefore, to the maritime law of Europe, or which can throw light on the obscure and dubious path of neutral con- duct, cannot* fall of being interesting to the people of America. Notwithstanding the gfeat importance of the subject, the most distinguished vvriters on the law of nations, GrotiUs, Puffendorf, Wol- Fius, Vattel, and others, have passed it over with very slight attention, deterred, perhaps, by the variety of delicate and difficult ques- tions, to which it gave rise. The nature of sovereignty, the rights of war and peace, the functions and privileges of ambassadors ; the laws of negotiation, the formation of treaties. i TRANSLATOR'S PREFACE. xi .md the rules of their interpretation ; these, and many other subjects, have been discussed by them with great learning and ability ; but they appear to have been inattentive to the changes produced in the interests and ati'airs of nations, by the extension of navigation and commerce. The age of commerce has suc- ceeded to the age of chivalry, and the influ- ence of this new spirit is to be discovered in all the political transactions of Europe. The cases which give rise to the discussion of neu- tral and belligerent rights, have been increas- ed and infinitely diversified ; and in proportion to the progress of refinement and civilization, belhgerent nations have been more disposed to listen to the voice of reason and justice, and to examine and respect the claims of neutrals, whose rights have been infringed by the ope- rations of war. Appeals to the law of nations by neutral states, who are generally the weak- est, are listened to with more attention than in former times. For it is not true, as some have pretended, because, law and right are some- times disregarded, or trodden under foot by military power, that law and justice are empty names ; and that a science, which teaches the reciprocal duties of sovereign states, is a vain and useless study. Such a theory would con- found all ideas of right and wrong, and subvert the whole system of morality and jurispry-- xii TRANSLATOR'S PREFACE. dence. If well founded, it would equally ap- ply to individuals, and to a large class of moral duties which do not come under tlie cognisance of municipal law, and are not enforced by its sanctions. The very existence of social inter* course, depends on the observance of many rules of conduct, which are left to the con- science of each member of society, and his own sense of moral obligation. If a knowledge of these duties, if the precepts of morality and re- ligion, have no influence in restraining men from acts of injustice, the volumes which con- tain the lessons of wisdom, and the maxims of sages, might be destroyed as useless lore ; pub- lic instructors might abandon their schools ; the teachers of the sublime doctrines of revelation, might cease to exercise their sacred functions, and mankind be left to the blind impulse of ap- tite and passion, unrestrained by any law but that of force. Interest, and a regard to repu- tation, it is true, often impel individuals to the practice of virtue, when purer and nobler mo- tives are unfelt, or disregarded. But the observ- ance of justice and good faith, is equally the in- terest of nations ; and, whatever may be the se- cret views of crafty and unprincipled ministers or sovereigns, they seldom fail, in all their pub- lic declarations, to pay homage to the law of nature and nations, to acknowledge its author yity, and to appeal to its principles as the rule TRANSLATOR'S PREFACE. xiii of their conduct. This evinces that the law is not entirely devoid of infiuence, or, at least, that they are not regardless of the voice of fame, nor insensible to the opinion of the world. Nor can a religious mind divest itself of the belief, that guilty sovereigns, though they may triumph, for a season, in the possession of un- just power, and riot in the spoils of their iniqui- ty, will, sooner or later, meet with the chas- tisement merited by their crimes. This belief, fortified by the history of political states, fur- nishes an awful sanction to those principles of eternal justice, which ought to regulate the conduct of nations. In this view, it is of no little moment, that, in all our controversies, we should have law and right on our side, that, if compelled to take arms, in their defence, we may feel the energy of conscious rectitude, and an assurance of the protection of heaven.* To know our rights, it is necessary to be ac- quainted with the laws on which they are founded ; every inquiry, therefore, which con- ducts us to a knowledge of those laws, is de- serving of attention, and maritime law, which comprehends the principles by which neutral commerce is to be regulated in time of war, * Thrice is lie arm'd, wlio hath his quarrel just ; And he but naked, though lock'd up in steel. Whose <:onscience with injustice is corrupted. Shaksfere. siv TRAKSLATOR'S PREFACE. merits a distinguished place in the Code of nations. On this subject, Hubner led the way, and has been the first to bestow upon it that particular attention which is due to its intricacy and importance. There is, however, so much confusion and contradiction in his ideas, and some of his notions are so fanciful, that whatever may be the merit of his work in other respects, it is now little esteemed. Gal- lia ni and Lampredi, two Italian writers, have treated of the rights and duties of neutral nations, in a manner more just and scientific, but not perfectly satisfactory. M. Azuni is the first person who has digested all the prin- ciples of maritime law into a regular system. He appears to have been well fitted by incli- nation and study, as well as by education and long experience, to execute a work, which required various and extensive learn- ing, sound judgment, and a liberal and phi- lanthropic spirit. His book may, therefore, be regarded as new, and one that bids fair to become a standard authority on all questions connected with the laws of maritime com- merce and navigation. The Translator trusts that no apology is requisite for presenting the American reader with a work that con" tains so full and comprehensive a view of one of the most important objects in the great Code of public law. TRANSLATOR'S PREFACE. xv The historical survey of the progress of navi- gation and commerce, and of maritime law, contained in the first volume, will he found instructive, and a suitable introduction to the subjects examined in the subsequent part of the work. In the parallel between France and Great-Britain, in the second chapter, some readers will be disposed to accuse the author of partiality, and, for that reason, may feel a prejudice against his whole performance. This partiality, however, is to be discerned in a few articles only, added to the present edition, printed, during the last year, at Paris, and might have been omitted without injury to the main body of the work, which, except some correc- tions and real improvements, remains essentially the same, as in the second edition of 179^. In translating a work of this nature, accura- cy was more to be studied than elegance ; but while aiming at fidelity, care has been taken to avoid foreign idioms. A nice observer, it is probable, may detect some tinct of the original language ; but it is hoped, that this imperfec- tion will be overlooked, if it should seldom occur, and the version, on the whole, be found faithful and accurate. The Translator has taken the liberty of subjoining a few notes, which he flatters himself will not be deemed altogether useless. He would have indulged further in the practice, had he not been re- xvi TRANSLATOR'S PREFACE. strained by the fear of overloading the text, al* ready furnished with ample notes and citations by the author. In works of this kind, notes and references are often requisite to give au- thority and force to what is asserted in the text. Every reader may not be so fastidious as to de- spise this shew of erudition, and may some- times be pleased to find relief from the dry pe- rusal of the text, in a classic allusion, or some lively annotation of the author. The notes of the translator are distinguished by the marks of reference, (*+:}: 1|) and by the initial letter T. . . WILLIAM JOHNSON. New-York, 180^. THfJ AUTHOR'S PREFACE. I, 1 HE nature and important objects of maritime law, and its relation to the interests of nations, render it the rule of intercourse be- tween governments, and the means of main- taining equal justice in all their political affairs. In this view, and from its close connexion with the universal law of nations, and the conven- tional law of Europe, it deserves to be studied by statesmen, by publicists, and by all who aspire to the honourable station of public mi- nisters, or aim at a faithful discharge of their diplomatic functions. II, A work, exhibiting, in a complete and scientific manner, the rights and duties of na- tions in regard to maritime commerce, has long been wanted. All the writers on public law, however, have uniformly forborn to ap- ply their knowledge and industry to this in- teresting subject. Vol. I. ^ i-T "? 4viu AUTHOR'S PREFACE. III. In an age, when the attention of the the powers of Europe is generally directed towards the progress of commerce, with an (Energy and perseverance, unknown to former times, it is inconceivable, that not a single writer has attempted to trace out a system of maritime jurisprudence and diplomacy; though all of them, perhaps, have admitted the neces^ sity of legal and determinate rules, by which the rights of nations, in peace and war, may be fixed on a permanent basis. IV. The interesting parts of the law of na- tions, which relate to the foundation and sources of national strength and prosperity, have been discussed in their full extent ; but the work has been executed, by publicists, in a scholastic manner. They have contented themselves with laying down a few detached principles, which have been attacked by a va- riety of discordant opinions, for the most part founded on the private interest of this, or that state, or on the particular notions prevailing in the schools, or produced by existing cir- cumstances. The consequence has been, that none of these principles could be reduced to practice. V. In the course of the present work, I shall have frequent occasion to examine and (Compare those opinions. It is only necessary to observe, in this place, that they are so va- \ AUTHOR'S PREFACE. xix nous, that it is difficult, on this subject, to ap- proach tlie truth, tew traces of which are to be found in the writings of pubUcists. Still, there is a wide difference between a truth faint- ly seen, and confounded with a mass of bold conjectures, and a truth exhibited in its full and unclouded light. I have thought it my duty to guard, as much as possible, against the influence, which authors, deservedly esteemed by the public, naturally possess over the minds of their readers. With this view, I have first consulted ancient writers, without regarding the commentaries, and explanations subjoined, and which too often pervert the sense of the original text. I have next examined the sources from whence modern publicists have derived their opinions, which I have compared with the principles of that part of the general and conventional law of Europe, that forms the subject of the present work. VI. It is not enough to point out the errors of writers, imless the causes of error be also disco- vered. It is requisite to ascend from one cause to another, until we arrive at the first. There is, without doubt, one general and primordial point, from which all the paths which lead to error diverge. Xcar this point, anotlier may, perhaps, be seen, at which commences the sin- gle road that leads to truth. It is this point. XX AUTHOR'S PREFACE. that I shall endeavour to reach in the ensuing work. VII. Maritime law, and the principles of which it is constituted, are not composed of fanciful opinions, and doubtful systems. This law rests on the general basis of the law of na- ture and nations, on the positive regulations of the conventional law of Europe, and on those usages, established among nations by necessity, the utility of which has been proved by long experience, and on which time has impressed a venerable character that commands our respect. In this manner, many rules that de- rive the force of legal authority from the tacit consent of nations, have been insensibly esta- blished. It is this tacit consent, that gives va- lidity, and a binding force to the European law of nations. Vm. The empire of the high sea, the ex- tent of jurisdiction over the parts of the sea ad- jacent to the shore, the legislation of ancient and modern maritime nations, the rights of belligerents and neutrals, maritime captures, and their adjudication, &c. &c. are subjects which have been treated of by modern pub- licists ; but no writer has yet considered them together in one point of view, so as to form, from the various principles which have been established, a regular and connected system, constituting a permanent and invariable code ,' . 'a.' 1 AUTHOR'S PREFACE. xxi of law, to which all might have recourse, in the great variety of cases, and diversity of cir- cumstances, which might arise. IX. Nations have continued in doubt and uncertainty on these subjects, as much from a fear of injuring themselves as of hurting others. The maritime usages of nations, therefore, have been regarded as a delicate and difficult part of the law of nations, and has remained in its pristine state of doubt and indecision, involved in a chaotic mass of scholastic disquisitions. X. This evil would not have existed, had publicists, directed by the principles of natural reason, the only guide of nations, examined the spirit of these usages, and traced them to their source. They would, then, have clearly seen their influence on the conduct and policy of nations, and have ascertained the original cause and motive of their adoption, from which might be deduced the degree of their binding- force. XI. The uniformity of the natural and so- cial relations extending to all men, and bind- ing them together in fraternal ties, has proved the absolute necessity of a general society, com- posed of all the particular societies spread over the surface of the earth. These relations, not founded on special conventions, but upon the eternal and immutable laws of nature, cannot be effaced by particular institutions. All xxii AUTHOR'S PREFACE, men are equally destined by their Creator to multiply, until their number is equal to the mass of subsistence, which the country they inhabit is capable of producing.* This uni- versal law, operating with irresistible force, impels them to the continued exercise, and im- provement of their intellectual faculties in works of art, to stimulate the earth to perpetual fertility by their labour, thereby to increase its productions, to communicate moral and phy- sical knowledge, to exchange, by means of commerce, the various products of their in- dustry, and, in a word, to endeavour to attain that portion of felicity of which human nature is susceptible. XII. By the establishment of commerce and exchange, each nation, certain of pro- curing whatever is necessary to supply its wants, cultivates the earth, and applies its in- dustry to the best advantage. Incapable of living without each other's aid, men are led, by motives of private interest, to cherish reci- procal intercourse, and to form connexions of mutual friendship. In this point of view, the earth may be considered as occupied by one great nation, composed of those smaller politi- cal societies, scattered over its surface, though * See an interesting enquiry on this subject by Mr. Malthus, in his£5*rt^o/i the Prindple of Population, 2d edit. London, 1803. ...T. AUTHOR'S PREFACE. xxiii infinitely diversified, in their origin, religion, manners, wants, language, colour, and a thousand other circumstances, as various as the different climates they inhabit. Hence, all nations are bound to interchange acts of hospitality and kindness, and to observe that justice, fidelity, and respect towards each other, which are demanded by tlie interest of the great families of mankind in general, as well as of each constituent part of the national body. XIII. From the combination of causes and effects, which constitutes the universal law of nature, and from the moral and political or- ganization of the human race, the condition of every individual must influence, impercepti- bly, it is true, the condition of mankind in ge- neral ; much more sensible must be the influ- ence of a whole society on the state of otlier societies. Hence it follows, that nature has established among nations the same rights and duties that exist between individuals. Thus what constitutes the best possible state of an in- dividual, constitutes the best possible state of a nation. The public, or general interest of a nation is no other than thu product of the dif- ferent Interests of its individual members. XIV. There can be no riglits without du- ties ; the last are always the measure of the first. Rights and duties must not be consider- xxiv AUTHOR'S PREFACE. cd as two parallel lines, which, when extend- ed, never meet : they are, on the contrary, converging lines, which blend, sooner or later, and unite at their intersecting point. Such is the inherent constitution of man, and of the objects that surround him, which it has pleas- ed the Author of nature to establish. Whoe- ver claims to have his own rights regarded, must expect it only in consequence of the obligation he is under to respect the rights of others. A nation, therefore, can rest its right of property on no other solid basis, than that duty which it imposes on itself never to in- fringe the rights of property in other nations. XV. All nations are thus strictly bound to cultivate justice towards each other, to observe it scrupulously, and carefully to abstain from every act that may violate its precepts. Each one ought to render to others their due, to re- spect their rights, and not to disturb the peace- able enjoyment of them. Hence each nation possesses the right of preventing others from depriving it of its property, or prerogatives ; for, by so doing, it acts in conformity with its duties, which is precisely what constitutes right. XVI. For this reason, the property of a na- tion ousht to be considered as a sacred and inviolable right, which cannot be subjected to the Jaws of a sovereign ; for two distinct na- AUTHOR'S PREFACE. xxv tions, not acknowledging any superiority over \/ each other, cannot sacriHce their national pro- perty to any higher or common interest. Nations are considered as moral persons living in a state of natural liberty and independence. They acknowledge no laws but those of na- ture, in the decision of their controversies and quarrels. This law of nature, therefore, considered in relation to the interest of states, is called the universal law of nations. Its bind- ing force extends over all the nations of the earth. It is immutable, since it is founded on the unchangeable laws of nature. It is the common and necessary law of all the nations of the world, not of any one in particular.* * An ingenious and learned writer, Eohert Ward, esquire, in Iiis work, entitled. An Enquiry into the Foundatioji and History of the Law of Nations in Europe, &c. denies that there is any such uni- versal law of nations, immutable and imprescriptible, binding upon all societies of men. He asserts, that revealed religion, not natural reason, is the only true basis of moral law, and of the law of nature and nations ; that this law is applicable only to particular sets or classes oi nations, who admit the same religious and moral systems ; that the law of nations, therefore, as established among tiie Chrisiian powers of Europe, can have no binding force on the Mahometan or infidel nations of Asia, or Africa. In the discordant opinions of ■writers, and the contradictory laws and usages of mankind, he finds a specious ground for his theory ; but though it may be true in re- lation to that part of the law of nations, properly called conven- tional, it would not be difficult to demonstrate, tliat, in regard to the iaiv of nature, his theory is not only unfounded, but of a dan- gerous tendency. But this is not the place (or a discussion ot Vol.. I. !Cf* i xxvi AUTHOR'S PREFACE. XVII. It sometimes happens, that two na- tions resolve to form an alUance with each other, and to estabHsh between them, what is called the conventional laiv of nations, the ef- fect of which, in respect to them, is similar to that of the civil or common law, between two individuals. In this case only, and in conse- quence of their having so agreed for their common advantage, the right of property in each nation, may experience some infringe- ment ; but, excepting this case, there is no other in which it can be impaired, or vio- lated. XVIII. From the principles thus establish- ed, it follows, that the obvious and common interest of all nations, naturally and ne- cessarily leads them to unite and confederate together, in order to strengthen their rights of property, by a kind of universal guaranty. From these primitive rights and duties, are de- rived the actual rights and duties of nations towards each other. From this clear demon- stration of their origin, every mind is disposed to recognise their existence, to form a just such extent and magnitude. It might be enough to say, that (he position of Azuni, is supported by the authority oi Fiiffe?idorf, Hook- er, Locke, Cu'iiherland, Burkmaqui, Taylor, Butler, and many others whose names have long been held in the highest veneration for profound and accurate thinking, as well as for great learning and i:catenes3.,.,T. AUTHOR'S PREFACE. xxvii estimate of tlicir value, and to be convinced that they are in no degree arbitrary. XIX. To ascertain the just extent of the authority and binding force of the usages and customs of nations, it is necessary to rise su- perior to the arbitrary interpretations, contra- dictions and uncertainties, in regard to the law of nations, which false politics often produce, by considering only the practice and usages of Europe, without investigating the origin and reasons of the law, and without distinguishing the abuses and even infractions of the law, from the law itself. I have found no other way of attaining this end, but by consulting the unal- terable principles of universal legislation, and by scrutinizing with severity the controversies of civil societies, in order to ascertain the jus- tice or injustice, legality or illegahty, of their usages and customs. XX. Such, in substance, is the object of this work. I have endeavoured to unfold the principles of the maritime law of Europe, to fix the limits of the legitimate empire of pow- ers on the high sea, and over that portion of it which laves the shores of their respective territories, to give the history of ancient and modern nations who have aspired to the empire of the sea, and to analyse maritime law, from its first origin to the present day. These sub- jects occupy the first part of thi'^ \\ork. xxviii AUTHOR'S PREFACE. XXI. In the second part, I have treated of the origin and causes of maritime wars, of neutrahty, and of the duties of neutral and bel- ligerent nations towards each other. By ap- plying the principles, developed in the first part, to the law of marine captures and recap- tures, I have formed a body of elementary doc- trines, founded on positive laws, and the prin-- ciples of natural equity, that will serve for a sure guide in the decision of questions which may arise relative to navigation and commerce, either in peace or war. XXII. The same subjects have been already discussed by me, in another work, published in 1795, entitled, Sistema Universale dei prin- cipii del Diritto Marittimo delV Europa ; but the limits prescribed to myself, in that work, did not allow me to investigate the several mat- ters to that extent of which they were suscep- tible, and which was necessary, in order to reduce them into a system. There is not, therefore, in that performance, that clearness and full explication, wdiich I have endeavour- ed to introduce into the work now offered to the public, in as complete a manner as my understanding and abilities would permit. May I be fortunate enough to render my ef- forts useful to nations ! May I attain the only end I have in view, the good of my fel- low men ! CONTENTS OF VOLUME I. /I DVERTISEMENT, bi/ the Author, 5 Translator s Preface, - - 9 Authoj^'s Preface, - - 17 CHAPTER I. Page Of the Empire of the Sea, 1 ART. I. Of the High Sea, ibid. II. Of the Ancient States zvho have claimed the Empire of the Sea, 24 Sect. I. Tyre, 25 II. jEgina, _ . _ 29 III. Crete, - - . 30 IV. Rhodes, 31 V. Persia, 34 VI. Greece, - - 36 VII. Macedoniay 40 VIII. Egypt, 42 IX. Carthage, 48 X. Rome, - - - 54 ART. Ill . Of the Modern States zvho have claim rd the Evipire of the Sea prior to - the discovery of the Neiv World, - 76 XXX CONTENTS. Page Sect. I. Venice, - - 16 II. Ge?ioa, - - - 83 III. Pisa, - - 85 IV. The Goths, Vandals, Saracens, and Normans, - - 90 V. The Cimsades, - - 91 ART. IV. Of the States zoho have claimed the Empire of the Sea, since the disco- very of America. - - 95 Sect. I. Portugal, - - 94 II. Spain, - - - 103 III. Holland, - - 113 ART. V. Parallel between England and France, in regard to their claims to the Em- pire of the Sea, - 118 CHAPTER II. Of the Territorial Sea, 181 ART. I. Of the Empire of the Territorial Sea, ibid. II. Of the Extent of the Territorial Sea, 193 III. Of the opinions of Publicists as to the extent of the Empire of Territorial Sea, - - - 208 CHAPTER III. Of the Effects of the Empire OF THE Territorial Sea, 223 ART. I. Of Property in Territorial Seas and of their dependencies, ibid. II. Of Straits, and the duties imposed on their passage, - 226 CONTENTS. xxxi Page III. Of Ports, Bays, and Gulphs, 233 IV. Of other Maritime Duties, and An- chorage Duty, - - 235 V. Of the pressing of Ships, 238 VI. Of Embargoes, or the detention of friendly ships, - 242 VII, Of the internal Jurisdiction over the Territorial Seas, - - 244 VIII. Of Commerce and Fishing, 247 CHAPTER IV. Of the Origin and Progress of Maritime Law, - 253 ART. I. Of Commerce and Navigation, as sources of maritime legislatioUy ibid. II. Of the Rhodian laws, - 265 III. Of the maritime laws of the Romajis, contained in the Digest, - 296 IV. Of the maritime laws contained in the Theodosian Code, - 307 V. Of the maritime laws contained in the Code of Justinian, - 318 VI. Of the maritime laivs contained in the Basilica, - - 321 VII. Of the maritime laws promidgated by the emperor Leon, - 324 VIII. Of the Laws of the Consolat(\ del Mare, - - 326 IX. Of the Amalfitan Laws, - 372 X. Of the Laws of Oleron, '311 XI. Of the Laws of Wisbuy, - 381 Xxxii CONTENTS. Fagt XII. Of the Laws of Marseilles, 385 XIII. Of the Laws of the Ha?ise-Totvfis, 388 XIV. Of the Lazes of France, 391 XV. Of the Laws of Englandy 396 XVI. Of the Laws of Hollandy 402 XVII. Of the Laivs of Spain, 404 XVIII. Of the Laws of Portugal, 406 XIX. Of the Laws of Jntzverp, ibid. XX. Of the Laws of Sweden, 407 XXI. Of the Laws of Denmark, 408 XXII. Of the Laws of Russia, 409 XXIII. Of the Laws of other northern States of Euj'ope, 413 XXIV. Of the Ottoman Laxvs, 414 XXV. Of the Laws of Naples, 415 XXVI. Of the Laws of Venice, 416 XXVII. Of the Lazvs of Tuscany, 417 XXVIII . Of the Lazvs of Gejioa, ibid. XXIX. Of the Lazvs of Sardinia, 418 THE MARITIME LAW OF EUROPE, PART FIRST. Of the Sea, and of the Rights ivhich ma}j he exercised on that Element. CHAPTER I. OF THE EMPIRE OF THE SEA. ART. L Of the High Sea. § 1. 1 HERE is not a nobler object, nor one more capable of arresting the attention of man, than a ship under full sail, pursuing her peaceful course over the vast expanse of ocean. At the same time, nothing can more excite apprehension and wonder, than the sight of a ship attacked by tempest, contending against the impetuosity of winds and the violence of waves ; yet surmounting, by unshaken courage and skilful manoeuvres, all the obstacles which angry na- ture had opposed to her progress : escaping at last from every danger, the eye is gratified with seeing her enter triumphantly into port. Antiquity, which has enveloped the origin of navigation in darkness and fable, can throw no light on a period so very in- Voi. 1. B 2 THE MARITIME LAAV Part 1. Origin of navigation obscure. — First view of the sea. teresting to naval history. The expedients that na- ture furnishes to man at every step, and the progress of the human mind, which, in every age, has been able to draw forth the secrets contained in her bosom, will supply conjectures to guide us in our researches on this subject. They will lead to satisfactory conclu- sions, in support of the fundamental right, equally possessed by all men, to maritime navigation, and to a common participation of the advantages which the free exertions of their faculties may enable them to enjoy.* 2. The roaring: of the sur^e must have been heard 'by the first inhabitants of the earth, with a mingled sensation of admiration and dread. They must have approached the sea with distrust and with awe. In proportion as the waves became tranquil, their ter- rors would subside, till, at length, amidst numberless dangers, and, at the risque of a watery tomb, they ventured to brave an element, terrible only at inter- vals, but presenting in its wide extent, and capacious bosom, vast resources, new productions and new en- joyments.(l) * The invention of the means of navigation is given to many dis- tinguished characters in antiquity : popular opinion refers it to Mi- nerva, who invented so many other things. The idea of the poet Gessner, who, in his First Navigator, ascribes it to Venus, is not the least pleasing. This fiction has been happily introduced into the poem of Esmenard, entitled. La Navigation, Chant I. published at Paris, 1805 T. (1) The history of every age proves, that when men find it diffi- cult to procure the necessaries and comforts of life, nature offers Chap. I. OF EUROPE. Origin of tlie art of navigation. 3. The first who exposed himself to the fury of the sea, and the endless inconstancy of its waves, of whom Horace elegantly says, robiiretas triplex circa pectus €rat,[2) must have been impelled by want and cupidity. (3) Becoming, at length, familiarised with the rapidity of currents, the violence of winds and storms, the temerity of man knew no bounds. Ca- noes, made of the trunk of a tree, observed by chance floating on the waves, known among the ancients, under the name of Mono.vylum,{4') must have been the first means of crossing rivers, and of passing from tijem abundant resources in the productions of lakes, rivers, and seas. It may be said also, that the inhabitants of warm climates, enjoy a species of luxury in their pursuits on this element, whose agreeable coolness is so refreshing, under the influence of a burning sun. It is common to see, says Taylor, in his Letters on India, a savage islander, half plunged in water, his head sheltered with large leaves, and almost without any other covering, encounter alone the dangers of the ocean, in search of that sustenance which the earth refuses to yield, (2) Jill rohur et cvs triplex Circa pectus crat, qui fragilem truci Commisit pelago ratem Primus, nee timuit pr(Ecipite?n Africum Decevtantem Aquilonibus, Nee tristes Hj/adas, nee rabiem Noti. Horat. lib. i. Od. 3. (3) Navigandi studium et cursus viariiimos in vitam introdttxit atarilia; nam ut naxigare vellent, ad hoc adegit homines cupiditas adquirendi plura. Lybanius in progym. (+) Plato de legihus, lib. 12. Pliny Nat. Hist.Xxh. 7, c. 56. Isidor. Orig. lib. 19, c, L 4 THE MARITIME LAW Part J. Progress of the art of navigation. one island to another.(5) This first essay naturally led to a further imitation of this sort of natural boat, and to the discovery of the art of constructing others of different pieces of wood, fastened together with strings, made of skins, and with pegs, and arranged in the form of rafts, sufficiently solid and capacious for the purpose of transportation. (6) Emboldened by (5) Tunc alnos prbnumjiuvii sensere cavatas : Virgil. Georgic. lib. 1, v. 36. It appears that the ancients made great use of canoes, constructed of the trunks of single trees. Sanchoniathon says, that Ousous, one of the first heroes of Phoenicia, took a tree, half burnt, cut off its branches, and was the first who dared to expose himself upon the water : Arbore cujus ante ramos amputarerat, navigii loco usus pri- mus sese ausus man committer e. Vide Euseb. inpreparat. Evangel. lib. 1, p. 3. A. Vitruvius, de origine art. lib. 2, cap. 5. who endea- vours to ascend to the first principles of the arts, attributes the birth of navigation to the fact mentioned by Sanchoniathon. (6) It appeared highly probable, that its structure might be dis- covered in the raft of Ulysses, mentioned by Homer in the Odyssey, lib. 5, V. 2+4. and, in fact, it is there described in tlie most striking manner. Speaking oi the raft made by Ulysses in the island ot Ca- lypso, he says, Trees on trees o'erthrown Fall crackling round him, and the forests groan : Sudden, full twenty on the plain are itrowed, And lopp'd and lighten'd of their branchy load. At equal angles these disposed to join. He smoothed and squar'd 'em by the rule and line. (The wimbles for the work Calypso found) With those he pierc'd them, and with clinchers bound. Long and capacious as a shipwright forms Some bark's broad bottom to outride the storms. Chap. I. OF EUROPE. Progi'css of tlie art of navigation. experience, the simple ideas acquired of Boating bo- dies, whose specific gravity was less than that of wa- ter,(7) having enlarged the understanding of men, they were necessarily led to the construction of larger vessels ; rafts were converted into gallies, with many ranks of oars, (8) and at last they ventured to trust themselves to the open sea. These galHes, in the progress of time, were transformed into vessels with lofty sides ; in them, men braved the ocean, and from peaceful and timid fishermen, they linally be- So large he built the raft ; then ribb'd it strong From space to space, and nail'd the planks along ; These torn\*d the sides : the deck he fashion'd lust. Then o'er the vessel rais'd the taper mast. With crossing sail-yards dancing in the wind. And to the helm the guiding rudder join'd. Thy loom, Ca!) pso ! for the future sails Supply'd the cloth, capacious of the gales. With stays and cordage last he rigg'd the ship. And roll'd on levers, launch *d her to the deep.* Pope's Translation. (7) Such is tlie nature of pine, fir, and alder, which the ancients employed in the construction of their marine. (8) The Greeks gave to these gallies the name of Decateperes, Decapenterts, and Dtcaexeres, that is, having fourteen, fifteen, or sixteen ranks of rowers on a side. See the excellent work of M. Le Roi, on the marine of the ancients. * This ruft, according to the poet, was finlslicd in/our tkjs, a fact, which, tliough somc'.vhiit hnprobablc, proves Uh sscs to Lave bctn no less rcmaik- able for his skill and industJ>- .is ;c ihipwriglu, tl'.an for Ids politlciJ wl.- uor.\ T. 6 THE MARITIME LAW Part /. The sea useful for navigation and fishing. came audacious pirates, and adventurous naviga- tors.(9) 4. In whatever way the inhabitants of the earth became familiarised with this terrible element, it is certain, that from that time, the high sea presented two great advantages, navigation and fishing, while its coasts afforded various productions and different modes of industry, for the supply of their wants, and a secure asylum in the voyages undertaken on its restless surface. 5. Every nation situated on the borders of the sea, must have soon perceived that it had an equal right to navigation and fishing, and to a common participation of the advantages, which might result from these pursuits. At that period, no limits would be assigned to the exercise of this right, but such as resulted from their situation, their wants, or their in- dustry, or were fixed by nature. 6. The use of the sea is innocent in itself, and injurious to no onej because, it is sufficient for the wants of all, and nature has not given to men the right of appropriating things inexhaustible by (9) Quintilian, lib. 1 9, ch. 2. considering rafts as first made use of for navigation, says, " If tliose who came after the ancients, had done nothing more than to imitate them, we should still navigate on rafts : Si nemo plus efficiet eo quern sequebatur, adhuc ratibus navi- garemus." Vhap. I. OF EUROPE. The use of the sea is common to all mankind. use, of perpetual duration, and sufficient for all. As each one may find, in a common participation, enough to satisfy his wants, to seize on such things, and ex- clude others from their use, would be to deprive them, without reason, of the benefits conferred upon all mankind, by the great author of nature. 7. So fertile in resources, so abundant in pretexts, are avarice and ambition, when supported by armed power, that this fundamental truth, on which rests the plan of creation, has not been sufficient to fix the opinions of men, to lead their minds to favourable con- clusions, and to such as are agreeable to the institu- tion of the Creator. This truth acquires additional force, from the consideration of the impossibility of taking possession of the high seas. Indeed, from the moment a thing becomes so abundant, that whatever quantity may be taken from it by one, others may still have as much as they desire, it necessarily re- sults that, as each may appropriate to himself the quantity he wants, all the rest may do the same, with- out injury, and without infringing the rights of any other person. (10) (10) Hinc jactum ut stadin ijuiaqiie hominum ad suos usus ar- ripere posset quod vcUet, et qua consumi pottiant consumers ; ac talis usus universalis juris erat tunc vice proprietalis. Nam quodquis- que sicarripuerat, id ei eripere alter nisi per injustitiam nonpoterat. Grotiusdejure belli acpacis, lib. 2, di. 2, §2. In this sense, we are to iniderstand the words of Cicero, de fimbus. 3. Theatrum cum commune sit recte tamen did potest ejus esse cum locum queni quisque •vcuparit. The same principle is to be found in Seneca, de Ben*-- 8 THE MARITIME LAW Part L Property in die sea distinguished from that in land. 8. The reasons on which the right of property in land is founded, are not appHcable to property in the sea. As the earth, without cultivation, no longer fur- nished all the productions necessary or useful to the human race, it became requisite to introduce the right of property, that each individual might apply with greater assiduity and success, to the cultivation of the part which had fallen to his share, and to multiply by his labour, the various productions essentia] to life, and useful to the great body of society. For this rea- >Jon, natural law, directed by civil laws, has sanction- ed those rights of domain and property, which have put an end to the primitive community of goods. 9. The sea was of itself, navigable, anterior to any labour or industry of man. It requires no greater force of wind to carry forward on the ocean all the fleets in the world, than what is sufficient to propel a single vessel. When one ship has passed, the way remains unbroken and not less convenient for those which follow after ; so that any number of vessels may set sail at the same time, without impeding the course of each other.* nciis, lib. 7, c. 12. Equestria omnium Romanorum sunt ; in illista- men locus mens fit quern occupavi. * Puffendorf de jure naturse et Gentium, lib. 4, cap. 5, §9. Ui is navigationi sit idoneus nulla quantum ad ipsum inari hominum ope- ra et industria opus est. Eodem labore renti quicquid est ubiqiie «a- viumprodeunt iter. Nan deterius patet tibi incontinentem alterum iter, licet cceteri eandem viam usurpent. The whole of the fifth chapter of Puffendorf, on this subject, deserves to be read..,...T. Chap. I. OF EUROPE. No nation has an exclusive right to the use of the sea. 10. If, at the present day, a perfect democracy were possible, the sea alone could become the theatre of its existence. Every nation has an equal right to launch it fleets on that element ; there, every man has a right to navigate, to transport the productions of his soil or the fruits of his industry, and to plough the sur- face of the deep,from pole to pole. Absolute democracy, or, to speak more correctly, a perfect equality of rights on the sea, is the natural state of maritime nations. Whoever seeks to gain an exclusive power there, t y attempts to erect an absolute monarchy, an organ- •^ ised tyranny, an odious dcspotism.(l 1) Maritime na- vigation, being the free and permanent exercise of the natural and imprescriptible right of the nations of the world, must be common to all. Every maritime power ought to be pacific from principle, and tranquil from necessity. All those powers who have claimed the exclusive empire of the sea, have been warriors from necessity, jealous from pride, tyrannical from system, grasping from interest, and restless from avarice. Europe enjoyed tranquillity, when navigation, pro- tected by the law of nations, was peaceably carried on by all. It has been put into commotion, and in- undated with blood, since the Carthaginians, the Romans, the Venitians, Charles V. Holland, and England, have aspired to the empire of the sea.* (11) See an excellent work of M. Barrere on this subject, en- titled. La Lihcrte des Mers. * The Intelligent reader will ask, at what period has navigation enjoyed this undisturbed tranquillity ? And has not the ambition of Vol. I. C y" to THE MARITIME LAW Part L , , c The exclusive empire of the sea belongs to no nation. 1 1 . A despotic power over the sea, which belongs equally to every nation, would fetter commerce, and restrain the liberty of all mankind. It would inter- dict nations from the means of communicating with each other. To subject the winds and waves to the dominion of an exclusive flag, would be committing adultery with,* rather than espousing the sea j it would be seeking an absurd end, by means not less devoid of reason ; in a word, it would be the delirium of a nation, mad with ambition, whom it would be necessary to enchain. The different possessors in the same tract of country, have an equal right to the maintenance of order, for the purpose of securing the free exercise of their respective rights within such territory. If that territory is common and indivisible, the right of each individual is founded on the com- mon right. The sea, by its extent and real indivisi- bility, is intended by Providence to be common to the different nations of the world, to contribute to the wants, the commerce, the well-being, and the pros- perity of all who have the means of navigating its sur- face. With what right, then, will any one pretend to give laws to the sea, and to fetter the commerce of nations? France, of Austria, ot Prussia, also disturbed the repose of Europe, and inundated the fairest portions of that continent with blood ^ The dire effects of ambition are the same, whether the ocean or the land be the theatre of its influence T. * Ce serait adulterer les mers. See article, Venice, post T. Chap.L OF EUROPE. 11 ' ■ ■ ■■.... The injustice of an exclusive commerce. 12. The sea belongs to no one ; it is the property of " all men ; all have the same equal right to its use as to the air they breathe, and to the sun that warms them. Seas are the great highways, traced by nature between the different parts of the world, to facilitate and expedite communication between the various nations who inhabit it. If a nation seizes on these highways, if it arrogates to itself the exclusive privilege of traversing them without opposition, and repels, by the fear of being plundered, all those who wish to make the same use of them, it is no better than a nation of robbers. The liberty of the sea is interesting, not only to nations who carry on commerce in their own ships, but is beneficial to all mankind. All civilized l countries, at the present day, have nearly tlie same hab- \ its, the same wants, and require the same articles of consumption. If a nation usurps the whole commerce, it destroys all competition, and fixes, at its pleasure, the price of every commodity. By its arbitrary im- posts it draws to itself the riches of every state ; the colossus of its own opulence is raised on the common distress and ruin. Such a nation becomes the plun- derer and the enemy of the human race. 13. Can any thing be more just, than for the whole world to rise up against a nation that wishes to pre- vent others from sharing those common advantages, which, by the laws of nature and ot nations, belong equally to all ? And why may not the same events, the account of which we read in ancient history, again happen at the present day ? AVe behold the an- 12 THE MARITIME LAW PartL All nations should unite against the tjTant of the sea. cient nations uniting their forces, to avenge an out- rage committed against the laws of nature and of na- tions ; for, to claim the exclusive dominion of the sea, is an outrasre against both. All should combine their efforts against the usurper. A nation, in a con- dition to punish a maritime power that attempts to domineer over the sea, and who endeavours by vi- gorous attacks to restrain such power within just limits, deserves well of mankind; since the necessity of restoring to every nation its rights, is the motive which impels it to action, since its power rests on the general cause which it defends, since its commission is derived from nature, and its right from the absolute wants of the human race. Those nations whose situ- ation does not allow them actively to co-operate, will., at least, indulge good wishes towards another so ge- nerous as to attack, even in their harbours, the ty- rants of the ocean. It was thus, in former times, that Cimon knew how to expel the Persians from the ma- ritime coasts, and to subject them to such terms as he thought proper to impose, after the battle of Salamis. It was thus, that the people of Argos united with the Athenians to prevent the Spartans, not only from na- vigating the sea, but even to deprive them of the right of passage. It was thus that the power of the Egyptians was subjected to the pleasure of the Greeks, and they were constrained to sue for the liberty, granted them by treaty, of sending, each year, two vessels beyond the Bosphorus.* * In the above paragraph, and in some others, to be found in the first chapter of the new edition of his work, our author evidently Chap. L OF EUROPE. 13 Each ought to be content with his own pi-opcrty. 14. The law of nature enjoins us to be content with the acquisition of property sufficient for our own support, and of those who are dependent on our care. If reason and experience admonish us to think of futurity, this foresight should not lead us to indulge ambition and an unjust cupidity, nor to prevent others from providing equally for their own wants. The liberty of navigation and of fishing is derived from natural law, and the law of nations, as well as writes under a bias, and with a particular vitw to existing circum- stances. Themistocles commanded the Grecian fleet at the battle of Sa- lamis. An enlightened advocate ot the rights of mankind, would hard!)' recommend the conduct of the Athenians, as a maritime power, to the imitation of nations at the present day. The estab- lishment of the naval power of Athens was, no doubt, the principal means of her salvation from Persian tyranny. Her efforts to main- tain her liberty and independence against foreign invasion, are de- ser\ ing of our admiration. But in her conduct towards the Grecian states and cities, we discern nothing worthy of praise. In the instances cited by our author, she transcended the bounds of moderation and justice, and violated the principles on which the freedom of navigation and commerce is founded. In fact, the Athe- nians no sooner felt tlie greatness of their maritime power, than they became intoxicated by it. It was converted into the instrument of unjust ambition and boundless rapacity. Their naval commanders, dispersing themselves over the sea, laid waste and plundered de- fenceless towns, and brought home liieir spoils in triumph to Alliens. Friends and foes, allies and neutrals, were equally a prey to their lawless depredations. Themistocles liimself) once proposed, in an assembly of the people, to burn the fleet of their allies, then lying without suspicion in the port of Pagasae, and thereby to render themselves masters of Greece. The opinion of Aristides, and some sense of justice in the people, alone prevented its adoption -T. 14 THE MARITIME LAW Part I The higli sea is as free as light and air. from the civil law. For these reasons, the high sea ought to remain as common to the human race as air and light.(12) The use of those elements, unques- tionably, can never belong to any one nation, to the exclusion of others.(13) 15. From these principles, it follows, that the right of prior occupancy cannot give to a nation the abso- lute empire of the high sea, and for the reason alrea- dy mentioned, that this element is not susceptible of (12) Et quideni naturalijure omnium communia sunt ilia, aer aqua profluens et mare quia non sunt jure gentium siciit est mare. Dig. lib. 1. tit. ix. I. 2, 4-.* Mari quod natura otnnihus patet servitus imponi privata lege non potest. Dig. lib. 8. tit. iv. I. 13. Maris communcm esse usum omnibus ut a'cris. (13) Instit. lib. ll.§2.eM0. Dig. lib. 47. tit. 10. 1.13. §7. Id. lib. 43. tit viii. I. 2. §9. — An elegant passage of Petronius, ch. 10, may be here cited : 2uid autem non commune est quod natura optimum fecit ? Sol omnibus lucet. Luna innumerabilibus coniitata sideribus ciiam feras ducit ad pabulum. 2uid aquis did formosius potest? In publico tamenmanant. Vid. Noodt. probat. jurisjiib. 1. cap. 7. So Ovid, Metamorphose 6. 1. 349 — 2uid prohibetis aquas ? Usus communis aquarum est, Nee solem proprium natura, nee dera fecit. Nee ienues undas. Ad ptiblica munera teni. And Virgil. ^Eneid. 7. 1. 229. littusque rogamus Innocuum, et cunctis undamque, auramque palentcm. * Azuni follows the very Inconvenient and pedantic mode of quoting the civil laws, which prevails among the ^vriters of the other continent, referring only to \ht number of tlie law, and giving the first words of its title. By searching the general index, in some editions, the book and title may be found, but to save the reada- that trouble, a different reference is substituted T Chap. I. OF EUROPE. 15 A nation may renounce its maritime rights. individual appropriation. If it were otherwise, the grand Seignior, in quality of sovereign of Phoenicia, might claim to be the proprietor of every sea, as having succeeded to the right of the Phoenicians, who were the first navigators with whom history has made us acquainted. 16. In order that the empire of the sea may belong to any particular nation, it is necessary that all others should renounce the rights of navigation and fish- ing, which nature has conferred equally on all man- kind. By this means, only, by the general consent and agreement of all sovereign and independent so- cieties, can the sea become the apanage, or, if we may be allowed the expression, the dower of such for- tunate nation. In this manner, mankind may be sup- posed free to renounce the liberty of the sea, or to cede it to a single nation, who may give an equivalent for the possession, or leave it in its ordinary state, so that it may be enjoyed equally by all, as it is, in fact, at the present day. 17. In the first case, the empire of the sea would, undoubtedly, be in the hands of a single nation, to the exclusion of every other ; but in consequence only of an agreement or universal compact of the human race, and not by force of natural law. Other nations may, in like manner, divest themselves of the free exercise of the rights of navigation and fishing, of which the one in possession will become the abso- lute master. But as such a compact never has been. It5 THE MARITIME lAW Part I. Natural law does not permit a transfer of the sea. and never will be made,(14) we must conclude, that such an exclusive right, as is here spoken of, exists only in the region of possibilities, and that, con- sequently, the sea must remain, as in the second case, free, and for the common use of all nations. 18. A nation, it is said, according to Montesquieu, may cede the sea to another y in the same manner as it has ceded land. If this maxim, laid down by a great writer on public law, were true, and conformable to principles of natural law, the treaty which terminat- ed the first Punic war would cease to be the disgrace of Rome : we could no longer blame the insulting pride of Carthage. Those two republics divided universal empire between them, while an oppressed world stupidly gazed at the progress of their power. This act of political violence exercised against the rights of nations, has deceived Montesquieu, whose genius was often led astray by historical facts.(15) (14) It has been often repeated, that the right of the strongest at all times, gives the sovereignity of the sea. No other reason can be alleged in support of this claim, until we can produce either a formal renunciation by other powers of their sacred and unalien- able rights, or a clause in the will of Adam, by which he bequeaths to the power arrogating that sovereignity, the fluid part of the globe, to the prejudice of the other children of this common fathei: of the human race. (13) See Barrere, in his Essay de la liberie des mers, torn. li in which he says, " If any nation can cede the empire of tfie sea, an- other nation may conquer it ; the force of the one would then bt as legitimate as the injustice of the other.'* Chap. I. OF EUROPE. 17 One nation has no right to prohibit another from tlie use of the sea. 19. When one nation, under the pretext of an ex- clusive commerce, prohibited others from navi- gating a certain part of the sea, or from approach- ing certain coasts; such prohibition was regarded by them, as the offspring of vanity, originating from the abuse of momentary power, rather than from deliberate reason, or any right founded upon principles of universal justice. In truth, it must be considered as an infraction of the social compact, and a manifest violation of the most sacred rights of Immanity. For this reason, such an exclusive claim has been disregarded, or has become the source of enmity, and the just cause of war. Thucidydes(l6) gives us, on this subject, the example of the Atheni- ans and Megareans ; Sigonius,(17) that of the Bo- lognese and Venetians, and Francis Victoria,(18) that of the Spaniards and Americans. In support of the same principle, we may cite what Virgil(19) has said, in speaking of the opposition, made by the Car- thaginians, to the landing of the Trojans on the coast of Africa. ^uod genus hoc hominum, quave hunc tarn barhara morem Fermittit patria ? hospitio prnhibe?m(r nrenct ; Bella cient primaque vetant consistere terra. (16) Thucidydes Hist. lib. 1. (17) Sigon: de rer. lial. lib. 20. (18) Fratic. Victoria, de Indiis tract. 1 1 § 2, 3,et 4. (19) Eneid. lib 1.1.339. What are the customs of this barbarous place } What more than savage this inhuman race t In arms they rise and drive us from tlie strand. From the last verge and limits of the land Pitt. Vol.. T. D 18 THE MARITIME LAW Parti. The maritime powei* of nations is not equally balanced. These nations, as it happened, were obliged pa- tiently to suffer others to navigate the same parts of the sea, to land on the same coasts, and to carry on there, a commerce agreeable to the inhabitants. 20. Wars have, for a long time, been undertaken solely for the purpose of maintaining an equiFibrium between the continental powers. All treaties bear the impression of the political balance. The rest of the world have been, constantly, compelled to restrain great nations, who have attempted to encroach on their rights by the aid of armies, to which they were unable to oppose an equal force ; but nothing has yet been done to circumscribe within just limits those maritime powers who, to the prejudice of others, have transgressed their proper bounds. In all ages, mankind have been so blind, as to allow a single na- tion to assume the exclusive empire of the sea, and thus to violate the imprescriptible rights of nature and of nations. If the naval forces of each nation had been proportioned to its fortune, and to the extent of its maritime territory j if the military marine of , each state had been limited by a general law, guar- \ anteed by the forces of all the other maritime powers j ' if naval armaments had been commensurate only with the necessity of natural defence, and adapted to the I circumstances of each government, the world would ^ not have experienced, in every age, those political concussions, for the sake of compelling an usurping power, which tyrannises over the ocean, to descend fi-om that colossal grandeur which provokes the rest I Chap. I. OF EUROPE. 19 The evils which flow from maritime ambition. of the world to overthrow it. "Whether it be the in- tention of the author of nature to punish governments and men who overleap the barriers of the ocean, or that the passions of avarice, ambition, and the love of conquest, are necessarily the first fruits of military navigation, it is certain, that the most formidable plagues which have desolated the earth, have pro- ceeded from maritime power. Whenever tliis pow- er has become exclusive, its destructive effects have been oftener and more severely felt by the nations of the world. 2 1 . When mad ambition has proclaimed the proud pretension to deprive nations of the common right of the human race to the peaceful navigation of the seas, it has been followed by every crime. Happily for mankind, this exclusive maritime empire, after oppressing the nations who have suffered its exist- ence, has destroyed those by whom it has been usurp- ed. No power, no state, however formidable, can give law to Europe; much less to the general mass of nations. (20) Carthage carried on all the commerce of the known world : she turned to her own profit the riches of other nations ; she kept a large num- ber of foreign troops in pay ; she equipped powerful fleets ; her merchant-ships covered the seas, whose dominion they claimed ; and while, with one hand, she held the ocean in chains, with the other, she shook into commotion the nations oFtbc earth. (o 0) See Bartere de la Liherte des Mers, (om. 1. 20 THE MARITIME LAW Part I. Fatal effects of the sovereignty of the sea. 22. " I am of opinion," says Isocrates, " That it " would greatly contribute to this end, (the happi- " ness of the state) if we laid aside our ambitious " claim to the sovereignty of the seas. It is this " which formerly dissolved the government of our " ancestors, the happiest that was ever devised, " which now involves us in much confusion and dis- " tress, and which, in one word, is the occasion of " all the calamities we have either suffered, or in- « flicted." " Hence," he adds, " it is most evident, that " though no nation can boast of better men than our " own, yet this command of the seas which we af- " feet, and term a sovereignty, though it be more " properly named a misfortune, is sufficient to bring " indiscriminate ruin on all who possess it." " They (the Lacedemonians) were unacquainted " with the dangers attending the superiority of mari- " time power ; they knew not that it deprives such « as are intoxicated with it of the use of their facul- " ties, and, resembling the nature of harlots, first ex- " cites the desires and passions of men, and afterwards " converts them into instruments of destruction." « Odious to our allies, placed on the verge of ^' slavery and destruction, we were saved by the La- " cedemonians. They, in their turn, after exciting " the resentment of all their neighbours, and when " the collected storm was ready to overwhelm them, " fled to Athens for protection, and there alone ob- i Chap. L OF EUROPE. 21 The sovereignU- of the sea, fatal to those who possess it. " tained it. Who then would covet a superiority, " the consequences of which are so dismal ? Who " would not rather avoid and detest what both se- ** duces to uncommon guilt, and subjects to inevita- " ble punishmenl."*(21) The ancients, accurate and clear-sighted observers, had foreseen that a pow- er, founded on an armed naval force, by which death and destruction could be carried into every quarter, would generate a pride, that would, eventually, grow into intoxication and madness. 23. Every government, like every individual, has its evil genius, which impels it, sooner or later, to the commission of irreparable faults. Sovereigns are, ^f- tc;i, in the language of the poet, Frappe decet e>;prit de vertige et d'erreur, De lu chute dcs rois funeste avant-coureur.f With madness struck, before their fatal hour. The dire precursor of their fall from pow'r. The exclusive empire of a common element, pos- sesses nothing durable. Of all forms of ambition, that * The more correct and elegant translation of Dr. Gillies is here used, instead of following the loose and inaccurate version of the French T. (2 1 ) Isocrates, de Pace. t Racine's Athulie. The same sentiment is contained in a line of Apuleius. 3uem deus rult perdere ilk prius dementat. Tlie worst consequence is, that tlie people suffer for the follies of tlicn rulers. ^icquid deli rant reges plectuntur Achivi. — Hor. Epist lib. 1. 2 T. 22 THE MARITIME LAAV Parti. Ambition and injustice produce their own ruin. of ruling over the sea is the most wild^ for the lines of dominion and the bounds of property, are, alternate- ly, broken by the vessels of other nations, and con- tinually effaced by the fleets moving over its surface. This sceptre, illegitimate, because it is usurped, is broken against the smallest rock, and soon buried beneath those independent waves over which it ty- / •' rannised. In all times, among all nations, in every 1/ I climate, unjust power has been precarious and un- I stable. The laws of equity and peace, have a di- ' rect tendency to the preservation of the rights and benefits of society. Every invasion of the property of another, every law of force, necessarily draws after it^ts own destruction. Ambition produces usurpers and tyrants ; and tyranny calls for vengeance. In all ages, oppression has been the principal cause of the destruction of empires, founded by injustice and usurpation. 24. It is the right, it is the duty of all nations, to arm themselves against the universal oppressor ; to shake off, and break for ever, the yoke of a tyrant, who wishes to hold in chains, the seas, the com- merce, and the industry of all nations. Justice has its invariable laws ; oppression ought to have its lim- its. When it arrives at its height, it should be over- thrown. Thus, the pride and cupidity of Carthage were expiated by its degradation. Its splendour was followed by humiliation, and that fear with which, by the force of her numerous fleets, she overawed the Chap. L OF EUROPE. 23 The destruction of Carthage caused by avarice and ambition. world, was succeeded by contempt. She wished, in vain, to protract the last moments of her credit and renown ; the day of vengeance had arrived. The Car- thaginians, invincible abroad, were destroyed in Car- thage, by Agathocles and Scipio. Her name, her ty- rannies, her spoliations, the insolent speeches of her generals, the outrageous pretensions of her nego- tiators, have been transmitted to posterity, who are happy in being unable to discover where are now the ruins of that proud city.* The same giddy spirit of ambition, induced the different nationsof Greece, in their turn, to believe, that they might retain and pre- serve the maritime empire which they had usurped j but let us cast our eyes towards the wrecks of so ma- ny once flourishing cities and kingdoms. In the following sketches, will be seen the conse- quences of this mad pretension, such as they are pre- sented in the history of every nation that has attempt- ed to arrogate to itself the empire of the seas. * Did the destruction of Carthage by a haughty and implaca- ble rival, produce any benefit to other nations ? They were sub- jected to the domination and oppression of another power more ir- resistible, and not less rapacious. There are many readers who will question both the justice and the policy of the measure, and who prefer the moderation of Scipio Nasica, in the memorable debate on this subject in the Roman Se- nate, to the stern and unrelenting severity of Cato T. 24 THE MARITIME LAW Part I. Ancient naval powers. ARTICLE 11. Of the ancient States zvho have claimed the Empire of the Sea. § 1 . CLAIMS to maritime empire are of very high antiquity. Eusebius has transmitted to us a chrono- logical series of nations, who, at different times, and for certain periods, antecedent to the famous battle of Salamis, have been considered as possessing the em- pire of the sea ;(22) but they are indebted for this re- putation, to their having rendered themselves formi- dable, by their piracies, carried on in particular parts of the Mediterranean. From the false ideas that men always form of audacity and strength, those na- tions have even derived glory from their predatory excursions. (2 3) Many other nations have, in their turn, disputed the empire of the sea, and its waves have often been tinged with the blood, which the un- bridled ambition of ruUng over that element has caused to flow. We shall pass rapidly over the dif- ferent ages of the world, and observe what nations have acquired this ascendancy. (22) Eusebius in Chronic, lib. 2. Appollod. lib. 2. Plin, hist, nat, lib. 7. cap. 56. (23) Latrocinium maris illis temporibus glories habebatur. Justin, hist. lib. 43. cap. 3. cvk ex^onroi viii oolcx^vm tovtov ToiJ Egyov, ^sgovTOf ^6 Tt Kx] ^o^ric i^aXXov — Thuc)'dides, lib. 1. § 5. This occupation, in- stead of being regarded as disgraceful; wa^ considered as reputable. Chap. /. OF EUROPE. 25 Tyre. — The Phoenicians the first naval power. Section I. TYRE. § 1. THEPhoenicians, known in the sacred writ- ings, by the name of Canaanites,(24) a word that, in the oriental language, signifies ??iejrha?itx,[25) so much excelled in the knowledge of naval affairs, that the invention of a marine, according to Catullus, has been ascribed to them. Prima ralem renlis credere docia Tyrus. Inhabiting the coast of the Mediterranean, from the island of Aerad to Mount Carmel, they were ad- (2+) The only name under which the Phoenicians were known, in the early ages, and particularly by the sacred writers, is that of Canaanites. They are so called by Solomon, in Proverbs, ch. 3], V. 24. This appellation was preserved, for a long time, by the Phffinicians, in their colonies. Those who were established on the coast of Africa, called themselves by that name, in (he time of St. Augustin, that is, in the fifth century of the Christian era. St. Aug. expos, inchnat. cpist. ad Rom. Thename of PLosnicians, found among prophane authors, was given to them by strangers. Sanchoni- athon, in a fragment of his writings which remains, mentions that Chna (which is an abbreviation of Canaan) is their original name, and was afterwards changed to Phoenicians. The strangers who made this alteration, were, probably, the Egyptians ; but it has had the effect to make the ancient name forgotten. Vid. Eusebius prepur . Evangel, lib. l,c. 9. See also the learned observations of Abb6 Barlhelemi, in his first letter on some Phoenician medals, inserted in Ihe Journal des Savans, for the month of August, 1760. (25) Braun, dei^est. Sacord. htebreor.p. 251. — Hist. Universelle, iom. l./j. 219. Voi . r. E QB THE MARITIME LAW Part L Maritime advantages of tlie Phoenicians. vantageously situated for extending their commerce over this sea. Every thing invited them to become navigators. Inspired by that creative genius, which, from a horde of savages, made them, after a few ages, an illustrious nation, they invented, in the course of a few generations, many new arts, and con- siderably extended the ancientlimits of Phoenicia. (26) Commodious harbours offered them a safe asylum for their vessels, and Mount Lebanon furnished the tim- ber requisite for building vships. They profited so well by these advantages, that, if they were not the inventors of navigation, they were, at least, the first people who made long voyages, and armed their ships for war. Interest and ambition conspired to render them the most celebrated navigators of an- cient times. They visited, in turn, Sicily, Sardinia, Greece,* Gaul, and Spain. Another sea soon be- came necessary to gratify their ambition 3 they bold- (26) According to Straho, in his geography, lib. 16. Phanicia comprehended the whole maritime coast from Onthosius to Pelusium. Procopiiis de hello Vand. lib. 1 1, c. 10, calls all the country, from Sidon to the confines of Egypt, Phosnicia. This leads us to suppose^ that the Philistines were incorporated with the Phoenicians, and took their name. Herodotus, lib. 1, p. 59, calls the inhabitants of Askalon, which was one of the cities belonging to the Pliilistines, Phoenicians ; their other cities, without excepting Rhino-colura, are also denominated by ancient historians and geographers, cities of Phoenicia. Dionys. Perieg. v. 905 — 910. * " Phcenices prinii mercaliiris et viercihussuis arariliam, et mag~ nificentiam, et inexplehiles cupiditates omnium rerum iiipportavervvt in Grcpciam." Frajrmenta Cicer T. Chap. I. OF EUROPE. 27 Progress of the commerce of tlie Phoenicians. Jy passed the columns of Hercules, and their courage was rewarded by the discovery of Great Britain. (27) 2. The countries frequented by the Phoenicians, were almost all, which composed the ancient world, during the second period of history, that is, from the reign of Sesostris to that of Cyrus ; a period, during which the east and the south were as well known, as the west, in a subsequent age. The Phoenicians, treading in the steps of the conquerors of the im- mense regions of Asia and India, established their commerce, by means of their navigation, in all the places over which those great monarchs extended their dominion. (28) Egypt itself,, which continued for a long time, as impenetrable to strangers as Chi- na, was accessible to the Phoenicians. Ships bearing (27) Eustbius in Chronic, lib. 2. Diodor. lib. 5, p. Z-IS. Strabo. Geog. lib. \,page So. (2S) Robertson, in his History of America, in mentioning the reasons which induced him not to doubt of the voyage, made round Africa by Necho, king ot" Egvpt, about the year, A. M. 3100, and 904' before Christ, supposes this monarcli employed tlie Phoenician crews to man his fleet.* See also on this subject an interesting pamphlet, by M. Chapus, member of the legislative body, entitled liisloire abiegce den Kciolutions du Commerce, ch. 8. * The date here g^ven, is evidently erroneous. Robertson sa3's, " A Plicc- nician fleet, we are tokl, fitted out by Necho, king of Eg}pt, took its depar- ture about 604 years before the Chi'istian era, from a port in the Red Sea, doubled the southei-n j)romoutoiy of Africa, and, aRcr a voyage of three years, returned by tlic straights of Gades to the inoulli of tlie Kile." T. 28 THE MARITIME LAW Part L Rise and fall of the maiitime power of the Phanicians. their flag, might ascend the Nile, by one of its mouths, and their merchants occupied a quarter of the city of Memphis, in the vicinity of the Temple of Vulcan, called the Tyrian Canton^ from the name of Tyre, their chief city.(29) 3. By means of their extensive commerce, and their skill in navigation, they at length acquired the empire of the sea, which they long retained. They became, however, the tyrants of the ocean, and exercised piracy, until their dominion was an- nihilated by the most dreadful catastrophe. Ne- buchadnezzar, king of Babylon, marched against Tyre, about the year 580, before Christ, and, after a siege of thirteen years, made himself master of the city. (30) The conqueror, irritated at so long a re- sistance, exterminated every thing by fire and sword, and destroyed the city to its foundations. 4. Re-established under Cyrus, and more splendid than ever under the kings of Persia, Tyre paid dearly for arresting the march of Alexander the Great. A murderous siege transformed it into a heap of ruins. From the dominion of the kings of Syria, successors of Alexander, it passed under that of the Romans. Their empire, mild and tranquil, was favourable to commerce. Tyre took advantage of this circum- (29) See an excellent work by Mr. Peuchet, entitled, Recherchts sur Vetat et Its progris du commerce et de la navigation des anciens, inserted in the Bibliotheque Commerciale, Sept, 1803. (30) Joseph. Antiquit. lib. 10, cap. 11. Chop. I. OF EUROPE. 29 Destruction of TjTe. — jTigina. Stance to raise herself to her former greatness; to . reassume her glory, and to become the principal city of Syria. In the ages which followed, she ex- perienced, under the Saracens, and the Christian princes, the same alternations of prosperity and ad- versity. She has undergone, at last, the fate of all the ancient cities which have fallen under the Turk- ish yoke ; exhibiting nothing but a heap of ruins, and of huts occupied by miserable fishermen. A melancholy fate ! the sad fulfilment of the prophecy of Ezekiel.(31) SedioJi II. iEGINA. §'l. yEGINA, a considerable island, is situated inthe Salonic Gulf, near the port of Pireus, and not far from Salamis, illustrious for the famous victory of the Greeks over the Persians. A tradition, mentioned by Hesiod, confers on it the honour of having invented the art of navigation.- The ^ginetes, inthe reign of Darius, son of Hystaspis, having rendered their island the centre of the commerce of all Greece, by their attention to the maintenance of a large naval force, were considered as the most powerful (.31) " And they shall destroy the walls of Tyrns, and break down her towers ; I will also scrape her dust from her, and make her like the top of a rock. It shall be a place for the spreading of nets in the midst of the sea ; for I have spoken it saith the Lord God ; and it shall become a spoil to the nations." Ezekiel, ch. To, V. 4 and 5. 30 THE MARITLME LAW Part I. » Destruction of the naval power of j^gina. — Crete. maritime people of that age. (32) They distin- guished themselves in the wars against the Persians,, and earned the palm of valor. For this reason, they have been ranked among those nations who have, for a time, held the empire of the sea. (33) The part which they performed in Greece, was as short as it was brilliant. They were able to maintain them- selves, for a short time only, in opulence and pros- perity. Driven out of the island by the Athenians in the time of Pericles, the ^Eginetes never recovered from their fall. (34) Their naval power was entirely destroyed, and their commerce annihilated. (35) Section III, CRETE. § 1 . MINOS, the second of that name, king of Crete, who took such sanguinary vengeance on the Athenians for the murder of his son Androgeus,(s6) has been regarded as the first sovereign of that coun- try, who held the empire of the.sea.(37) But this em- pire, for which he has been so much honoured by his- torians, must be confined to the superiority Minos en- joyed in the seas of Crete, and of the adjacent islands. (32) Strabo. Geog. Herod. Hist. lib. 5. Plutarch in Themistoc. (33) Strabo. JEYianvar. Hist. lih. 12, c. 10. (34-) Pausan. in Corinth. (35) JEMan. in loc. cit. Strabo. loc. cit. Thucyd. Hist. lib. 1. (36) Plato de legibus, lib. 4-. (37) Thucyd. Hist. lib. I. Herodot. lib. 3, n. 122. Aristot. df repub. lib. 2, c. 10. Diod. lib. 4. Strabo loc. cit. Chap. L OF EUROPE. 31 Maritime power of the Cretans : its final destruction. Having become the most powerful in those places, by the great number of his ships, he was soon able to equip a naval force sufficient to clear the seas of the pirates who infested them, to seize on the neighbour- ing islands, become their legislator, and transmit the government of them to his children. SJ, After the abolition of the monarchy, there re- mained, among the Cretans, no union to constitute a national body. National wars with the neighbouring islanders, seldom occurred ; and when they sallied out from their own island, for tlie purpose of attack or defence, it was always in single vessels, and not with fleets, as would have been the case, if the people had been connected by the ties of common interest. The Cretans appeared, at length, to prefer a piratical warfare to every other. They infested the Mediter- ranean, and harrasscd navigation to the very coasts of Ital)'. Such conduct furnished the Romans with a pretext for attacking Crete, at that time perfectly in- dependent. They subdued the island, changed its government, and reduced it to a province of the em- pire. The Ottomans, who, in almost all the islands in these seas, succeeded the Romans, have become masters of Candia, which they easily snatched from the hands of the Venetians. Section IV. RHODES. § l. THE fortunate positionof the island of Rhodes, ihe excellence of its harbours, and the fertility of its 32 THE MARITIME LAW Parti, Rhodes : its great naval power. territory, created in the inhabitants an attachment to commerce, and to a marine, which they, for a long time, cultivated with the greatest success. Pro- fiting by the advantages they enjoyed, they establish- ed a maritime empire, more real and absolute than that of any other nation of antiquity, all of whom im- agined themselves the masters, because they were the tyrants of the sea. Less desirous of destroying, than of defending the liberty of others, by means of that honourable preponderance which they had ac- quired in the Mediterranean, the Rhodians became the protectors of nations they might have enslaved. It is not without reason that Florus calls the inhabi- tants of Rhodes a nautical people ^[^^Z) and that Euse- bius terms them the masters of the sea j,'(39) for the na- val laws they promulgated are so full of wisdom and equity, that they have served for the maritime law of nations throughout the whole extent of the Me- diterranean. Rome herself respected them ; follow- ing, in this instance, a wise practice, of adopting whatever she found excellent among foreign na- tions.(40) § 2. At Rhodes, the Romans were regarded as members of a common family. They assembled there, when expelled from Asia by Mithridates, king (38) Florus lli%t. lib. 2, cap. 7. Populus nauticus. (39) Eusebius in Chronic, lib. 2. (40) See what is said on the Rhodian Laws, in chapter 3, arti- cle 2, of this volume. Chap. I. OF EUROPE. Conquest of llliodes by tlie Romans, and its final ruin. of Pontus. That prince would have made some il- lustrious prisoners, could he have forced the city to surrender, when he laid siege to it': but he met with an obstinate resistance, as well from the inhab- itants, as from those who had taken refuge there, who fought as for their common country. This fra- ternization, however, was injurious to the Rhodians, since they were not allowed to remain neutral in the domestic dissensions of their allies. They took part with Pompey, and, afterwards, with Caesar. They de- fended themselves with courage against Cassius, the assassin of Caesar, and engaged in two battles, in which they lost the greater part of their ves- sels. The city was treacherously opened to Cas- sius, who stripped it of its most sumptuous orna- ments, punished the principal inhabitants, and ex- acted from them heavy contributions. Marc Antho- ny restored to Rhodes its privileges, and annexed to it some adjacent islands, as a part of its territory. The Rhodians, such zealots for liberty, so oppressed these different dependencies with taxes, that the Dic- tator was obliged to restore them to their former state. Vespasian imposed a tribute on Rhodes, which, from the sovereign, became merely the capi- tal of the islands in the Mediterranean, subjected to the Roman power. She afterwards recovered her independence for a short time : but the Ottomans destroyed it for ever. Vol. I. F 34 THE MARITIME LAW Part I Persia. — Maritime expeditions of Darius and Xei-xes. Section V. PERSIA. § 1. DARIUS, son of Hystaspis, seated on the throne of Cyrus, had little else to engage his atten- tion, than the restoration of whatSmerdis, the usurp- er of the kingdom, had destroyed. Desirous of in- flicting vengeance on the Athenians and Cretans, who assisted the revolt attempted by the Milesians, under the direction of Aristigonus, he sent against them an army of 600,000 men, and a fleet of 600 ships, furnished by the Phoenicians, the Egyptians, the Cypriots, and the lonians. The disgraceful loss of the battle of Marathon, did not discourage him ; he made new preparations against Greece. Darius died without executing his project, and Xerxes in- herited his vast dominions, and his boundless ambi- tion. 2. Xerxes, while he menaced the liberty of Greece, was so elated with the great army with which he had determined to attack it, that having met with a storm, he treated the sea as a rebellious slave. He ordered it to be scourged with three hun- dred strokes of the whip, and chains to be thrown into it. The battle of Salamis cured him of his mad- ness,(41) and overthrew the maritime forces of the (41) The immense fleet of Xerxes was beaten at Salamis by the combined fleet of the Greeks, consisting only of 300 vessels. The Greeks, without doubt, owed their victory, in some degree, to their Chap. I. OF EUROPE. Disgraceful retreat of Xerxes out of Greece. nations he had brought with him, for the conquest of Attica and the Pcloponnesus.(42) Thus, after hav- ing enchained the waves, cut through mountains, filled up valHes, drained rivers, covered the sea with vessels innumerable, and led on millions of men in his train, he found himself alone^. abandoned, trembling, and happy to find a fishing boat, in which to recross the Hellespont. His retreat from Greece was as hu- miliating, as his entry had been formidable and haughty. He signed a treaty, which fixed the coast of Pamphylia, as the limits for the navigation of his subjects. Thus, for the first time, we behold the freest nation in the world, exercising a despotism over the sea, to wdiich the most absolute monarch was forced to submit. remaining in a narrow strait, where a great number of ships were not only useless, but a hindrance to each other. Yet the great part of the glory of that day, may be fatrly attributed to their courage and experience in naval combats. The Greek vessels were manned by righting men ; those of the Persians, with merchant-sailors, ex- cellent navigators, indeed, but little acquainted with the science of naval tactics. (12) Authors are not agreed as to the number of naval forces em- ployed in this famous expedition. If we may credit Herodotus, the Persian fleet consisted of 1200 sail, besides transports : three hundred of Phoenicians, and Syrians of Palestine, two hundred Egyptians, fifty from the isle of Cyprus, one hundred from Cilicia, thirty from Pamphylia, fifty from Lycia, one hundred from Doris, seventy from Caria, one hundred from Ionia, seventeen from some ^mall islands, sixty from iEolia, and one hundred from the coasts •if the Hellespont and the Euxine. 56 THE MARITIME LAAV Part L Destruction of the Persian marine. — Greece. I 3. The battle of Salamis was followed by tliat of Platasa, and of Mycale. The loss of these three bat- tles, was a most dreadful stroke to the Persian pow- er. The Athenians, masters of the sea, delivered Cy- prus, Thrace, Macedonia, and the Chersonesus, from the yoke of the Persians. Soon after, under the com- mand of Cimon, they drove the Persians out of Io- nia, and burnt or sunk all the vessels of the great king. Section VI. GREECE. § 1. GREECE is bounded on the east by the Pro- pontis and -^gean sea, on the south by the Ionian sea. It is almost divided by the Corinthian gulf, and is surrounded with islands not far from the main land, and at a short distance from each other. The necessity of mutual intercourse felt by the inhabitants of the continent, and the islands, and a desire to ex- change the productions of their respective countries, prompted them, at an early period, to devote them- selves to navigation, 2. Lively and enterprising, the Greeks have so highly cultivated the arts and sciences, that we always- turn our eyes, with pleasure, to a region from whence we have derived so much intellectual light. After the brilliant victories gained over the Persians, they neglected nothing to maintain their superiority at 5ea. Obstinate and self conceited, they were more Chai). I. OF EUROPE. 37 Athens and Lacedcmon, rivak in maritime pover. desirous of exciting the attention and admiration of other nations, than of acquiring subjects. Too jealous of one another, to enjoy in common the fruits ot their success, they became a prey to the most cruel dissen- sions. The Athenians, persuaded that they owed the preservation of their country to their marine, resolved to keep up their maritime forces. Themistocles pur- sued the wisest measures to augment them ; and Aris- tides having become their leader, gained for his countrymen, the empire of the sea, of which the La- cedemonians had, hitherto, been in possession. The latter saw, not without jealousy and anxiety, the ra- pid increase of the maritime power of the former, and the extension of their empire over the /Egean and Ionian seas. § 3. These two rival republics, so different in their manners and customs ; one distinguished for polite- ness and luxury, the other for the severity of its go- vernment y one engaging our affections, the other extorting our admiration, were often at war with each other. The Athenians would, probably, have main- tained their niaritime preponderance, for a much longer period, if the Lacedemonians, forgetting the principles of Lycurgus, their illustrious legislator, had not resolved to secure their empire on land by that of the sea.(43) But Sparta, herself, would never have (-1.3) Ciagius, de repitb. Ixicedevwn. lib. 3, c. 4, pretends, that Ly- curgus had positlvel)' forbidden the Spartans to build vessels, or to maintain seamen ; but there is little probability that any person 38 THE MARITIME LAW Parti. Alliens taken, and its naval power destroyed. been able to execute so great a scheme, had it not been for the blind ambition of the Athenians, which impelled them to the unfortunate expedition into Si- cily, attended with such disastrous consequences to their power. The Lacedemonians took advantage of the distress of their rival, attacked her, and captur- ed eighty vessels. They soon laid siege to Athens in form, forced it to surrender at discretion, and to open its gates to the conquerors, who demolished its fortifications. Conon, by rebuilding the walls of his country, could not restore her maritime power. The Spartans who, with the aid of the Persians, had de- stroyed it, were unable, in their turn, to preserve their own power, when their allies ceased to supply them with ships and money. 4. The Lacedemonians, after Athens was thus hum- bled, took their place among the number of those nations who have exercised an absolute despotism over the Mediterranean sea. Alcibiades, by an in- sidious policy, under the pretext of opening to them the road to fortune, led them to ruin. AVhen he took refuge at Lacedemon, he advised the kings, the would have thought of making such a law in a country like that of Laconia, where therewere, at least, fifty maritime towns, and which, if prohibited from fishing, and from the commerce of Asia, Africa and Sicily, would have been deserted. Independently of this conside- ration, the pretended prohibition of Lycurgus is contradicted by an infinitude of facts ; for history informs us, that the Lacedemonians always had armed vessels ; and that in the time of Crce.<;us, they landed troops in the isle of Samos, to which they had been attract- ed by the desire of plunder. Chajh I. OF EUROPE. 39 Maritime despotism of Sparta, destroyed by Conon. ephori, and the people, to augment their marine, and to put themselves in a condition to compel every other flag to do homage to theirs, and to become, at length, real Thalassocrates, or rulers of the Gre- cian seas.(44-) We feel hatred towards the Spartans for their pretending to rule over the continent ; but WQ detest them still more, when, by the perfidious counsel of an Athenian, they attempted to become the tyrants of the waves. 5. Pride, and the abuse of prosperity, that caused the fall of Athens, soon made their insolent rival ex- perience the same fate. The empire of the sea, which Lacedemon had acquired at the battle of Egos- Potamos, by the talents of Lysander, was annihilated, ten years after, at the battle of Gnidos, when Conon totally destroyed her fleet and naval forces. All subsequent efforts to re-establish her marine, were ineffectual ; for, at the time she was incessantly oc- cupied in its restoration, her land forces were entirely destroyed by Epaminondas. Lacedemon was soon afterwards plunged into the lowest abyss of misfor- tune, till, at length, she was exterminated by the dreadful tyranny of Nabis ; a scene that forms the most hideous picture in the history of expiring Greece. 6. The fall of these two republics, changed the face of Greece. The fortune of Athens and Eace- M'l-) Isocrates, Oratio ad Philipum, p. 180. 40 THE MARITIME LAAV Part I Fall of the Grecian power.— Philip of Macedon. demon, passed to Thebes ; and Thebes, in her turn, after a brilliant prosperity, shortened by its auda- city, was enveloped in the same ruin, and the empire of the Grecian seas, was abandoned to the Macedo- nians. Section VII. MACEDONIA. § 1. PHILIP, king of Macedon, who took part in all the views and projects of the Greeks, desirous of raising himself to grandeur on their ruin, made every effort, from the commencement of his rei^n. to create a marine, in order to secure to himself a greater preponderance of power. With this prince, a treaty was a snare, and a present, a declaration of war. Without pretending to justify all the means he employed to obtain the ends he had in view, it can- not be denied, that he was one of the ablest men in the art of government. His first pretext for arming, was to expel the pirates, who had become insolent by a long series of successful depredations, and to clear the yEgean and Ionian seas of these marauders. But he himself soon exercised the same infamous, though lucrative employment. He scoured the seas with his ships, and carried offone hundred and seventy vessels, richly laden, the booty of which was of great service to him in prosecuting the war. Philip was not des- titute of flatterers, who, confounding success with justice, invented reasons to prove both the honour and lawfulness of these maritime expeditions. A vi- Chap. I. OF EUROPE. 41 Death of Philip. — Projects of Alexander the Great. olcnt death arrested him in the midst of his projects and enterprises. He was slain at the time, when, under the modest and specious title of 'generalissimo of Greece, he was preparing to fight the Persians, and already considered himself as the conqueror of Asia, and the ruler of the sea. Alexander the Great, who succeeded him, inherited both his ambition and his dominions. He entered into all the views of his father, adopted the same principles, reigned with more splendor, though with less genius and address, availed himself of the glory which Philip had acquir- ed, and formed projects of his own, still more vast and boundless. Though dazzled with the rapidity of his \ victories, and finding every where new food for his pride, he did not forget, that without commerce, and a well established marine, his conquests would prove useless, and even ruinous. For this reason, / having destroyed Tyre, and made Carthage tremble, he laid the foundation of Alexandria, as the capi- tal of the universal monarchy which he meditated j and to serve as a general entrepot for the commerce of the different parts of the world, to be concentrated in that place. He intended to open an advan- tageous communication between India and Ethiopia, by the Red Sea and the Nile, and another between Europe and Africa, by the Mediterranean. For this purpose, he placed the new capital of the world be- tween Tyre and Carthage, that it might draw to it- self the commerce of both cities. Vol. I. G 42 THE MARITIME LAW Part I. Vast phuis of Alexander ; his sudden deatli. ■g;- — — ■ 3. It is said, that Alexander had resolved to em- bark on the coasts of Syria, proceed to humble Car- thage, and to subdue Numidia and Mauritania; that he proposed, afterwards, to pass the straits of Gibral- tar, and, landing in Spain, reduce it under his power; that from thence he intended to penetrate into Italy, to depress the greatness of Rome, against which he had taken offence, and then to return into Greece. Others relate, that he meant to double the Cape of Good Hope, circumnavigate y\frica, and re-enter the Mediterranean. He caused timber to be cut on Mount Libanus, for the construction of gallies of sev- en ranks of oars, and he commanded the king of Cyprus to furnish beaks, sails, and cordage, for his ships. He intended, also, to enter the Euxine, and to sail as far as the Palus Meotis. He had caused materials to be prepared for equipping a fleet, which he designed to launch on the Caspian Sea; but death surprised him in the flower of his age, in the midst of all the pleasing and brilliant prospects, which fortune opened to his view : with him, all his pro- jects terminated. (45)* Section VIII. EGYPT. § 1 . EGYPT, in its geologocial and topographical circumstances, presented no immediate inducement (45) Quintus Curtius in vita Akx. Justin. Ilistor. * The various, extensive, and magnificent schemes of this ex- traordinary man, are elegantly described by Dr. llobertson, in his excellent Ilislorical Disquisilion concerning India T. Chap. I. OF EUROPE. 45 Egj'pt paid no attention to navigation before the time of Scsostris. to its inhabitRnts, to make navigation their chief em- ployment. Surrounded, on almost every side, with immense rocks of granite and marble, inundated eve- ry year, by the periodical overflov^'ing of the Nile, producing only a few small trees, this comitry was destitute of the materials suitable for building of ships. A moral power contributed no less to es- trange the Egyptians from nautical pursuits. Reli- gion, which, in that country, more than in any other, is subservient to politics, attached a kind of dishon- our to the occupation of a mariner; and Typhon, tho emblem of the principle of evil, and, consequently, the enemy of all good, was also the god of the sea. A priest believed himself defiled by the more touch of a seaman, and, for that reason, strangers were de- clared impure. 2. From the combined effect of all these causes, before the reign of Sesostris, the Egyptians, who, from the natural fertility of their soil, wanted very little from other nations, shut their ports against strangers, and treated navigators as profligate and profane per- sons. Time, which discovers every secret, and makes known, at once, causes and their effects, opened the eyes of the great monarch who reigned in Egypt 1659 years before the christian era, and enabled him to discern the advantaircs of a commerce with India. Sesostris, at length, surmounted all the difficulties which popular prejudices opposed to the establish- ment of commerce and navigation. He took ven- geance on the Erythreans, who had rendered them- 44 THE MARITIME LAW Part L Enterpise and death of Sesostris. — Ptolemy Lagiis. selves formidable on the Red Sea ; armed a fleet of four hundred ships in the Gulf of Arabia; made him- self master of all the islands of the Red Sea, even as far as India, and arrived, according to Herodotus, to a sea which was innavigable, on account of its numerous shallows. After the death of Sesostris, the ancient prejudices revived, and all the advantages his country had derived from commerce were lost. The conquests of Alexander, were divided, after his death, among his lieutenants. Egypt fell to the share of Ptolemy, son of Lagus, who was succeeded by twelve of his family, named Ptolemy, and distin- guished from each other by their surnames. The first king of Egypt, of an elevated and enterpri- sing genius, encouraged the establishment of Alex- andria, and granted to that city all the rights and pri- vileges which it deserved to enjoy, Ptolemy opened again the long interrupted intercourse with India, and the facilities he granted to its commerce, joined to the immediate hopes of gain, attracted to Egypt the most respectable merchants, and most skilful na- vigators. To excite still more the spirit of com- merce in his dominions, and, at the same time, to prevent other nations from drawing it from Egypt, he laid out the plan of a magnificent city on the Red Sea, where he might himself inspect his fleets, and keep up the necessary intelligence with them. 4. This grand design, thwarted by various obsta- cles, was executed after his death, by Ptolemy- Chop. /. OF EUROPE. 45 Ptolemy Philadelphus, promotes and protects commerce and navigation. Philadelphus, who gave to the city the name of his mother, Berenice. This prince maintained two large fleets, one in the Red Sea, the other in the Medi- terranean, to restrain pirates, and to protect maritime commerce from their attacks. The expense of two such establishments, shews, at once, his naval power, and his attention to whatever might facilitate the pro- gress of commerce. Philadelphus, in fact, was too I ^ good a politician not to know that a sovereign at- I tempts in vain to encourage commerce, if he does not effectually provide for its protection by a powerful navy. His ovi^n, therefore, was in the most iiourish- ing state. It was, doubtless, to make known how much this prince had done to promote navigation, and to' transmit to posterity a durable monument of the splendour which commerce had acquired during his reign, that Callicrates, commander of the royal fleets, consecrated to Arsinoe, the wife and sister of Ptolemy, a temple, in which she was honoured under the name of Venus, the tutelary divinity of mariners. (46) The conquests which Philadelphus added to his paternal dominions, rendered his em- pire unbounded by sea and land. He had, accord- ing to Theocritus,(47) 33,339 cities subjected to him ; so that Callimachus, in a hymn, made in honour of the Isle of Delos, supposes, that Apollo formerly predicted the greatness of this prince, and that he (4-6) Athenaeus, lib. 5, p. 206. (47) Theocritus, Idyl. 17. 46 THE MARITIME LAW Part I. Ptolemy Evergetes. — Great naval enterprise of the EgA'ptiaiis. would extend his empire from the rising to the set- tins: sun. 5. Ptolemy-Evergetes pushed his conquests be- yond those of his father. He was constantly on his guard to prevent any disturbance in the navigation of the Arabian sea, where he exercised exclusive dominion. This prince was the last of the family of Lagus who has merited the praises of the historian. His successors are described as addicted only to pleasure and luxury, and neglectful of commerce and navigation. 6. Notwithstandincr this defect \a the Ptolemies who succeeded Evergetes, the Egyptians had receiv- ed from his predecessors too strong an impulse to- wards commerce, to abandon it. They continued to be passionately attached to navigation, and to the discoveries to which it leads. We behold them on one side, traversing every part of the Mediterranean, advancing as far as Cadiz, penetrating the Palus-Me- otis ; on the other, visiting the gulfs of Arabia and Persia, passing to the south along the eastern shore of Africa, to the Island of Madagascar, running the whole coast of the Indian Ocean, landing at the mouth of the Indus, surveying the coasts of Malabar and Coromandel, frequenting the Island of Taproba- na,* ascending the Ganges, and pursuing their navi- gation even to Palibothra,f the capital of the Indies. * Ceylon, t AlLaliabad, or Patna — See Rennell's Memoir and Map T. Chap. I. OF EUROPE. 47 Final subjection of Eg}"pt by the Romans, and tJic ruin of its marine. 7. The reign of the twelfth Ptolemy, surnamed Dionysius, the last of the princes of that name, ha'^ derived more celebrity from the war, so gloriously maintained in Alexandria by Cxsar, than from the ex- ploits and great actions of the Egyptian monarch. (47) 8. Cleopatra, vv'ho succeeded her brother, cele- brated for her beauty, her luxury and gallantries, had so well restored the Egyptian marine, and repaired tlie disasters it had sufTcred in the siege of Alexan- dria, that she was in a situation to lend considerable aid, in ships and maritime forces, to Anthony, in the war against Augustus. (48) It was, without doubt, to perpetuate the remembrance of the maritime powd- er of this princess, that many of her medals bear on tlie reverse, vessels and prows of ships. After the battle of Actium, and the tragic death of this unfor- tunate queen, Egypt w^as reduced to a Roman prov- ince, and its maritime commerce passed into the hands of the Romans, to whom the Egyptians w^ere, for a long time, mere agents and factors. 9. In the last periods of its history, Egypt did not support its ancient and distinguished character j but it continued to improve, in a high degree, in industry and manufactures. The revolutions which this un- (4-7) The war of Aelxandria exhibits one ofthe most interesting periods of ancient history : the description of it in the commenta- rie? of Caesar, is always read with pleasure. Csesar df hdl. civil. lib 3. et Hirtius Pansa, dc hdlo Akxand, (48) Phitarch, in liiu Anion. 48 THE MARITIME LAW Part I. Revolutions and misfortunes of Egypt. — Carthage. happy country afterwards experienced, the invasions of the Persians, the irruption of Amrou the Saracen general, under the Caliph Omar, the madness of the Crusades, the bad government of the Mamelukes, and their subjection to the Turkish yoke, as well as the reduction of Egypt by the French, have not yet been sufficient to complete its destruction. Egypt, with a capital containing four hundred thousand in- habitants, sufficiently proves, that it still retains some portion of its former magnificence. It is impossible to calculate what will be the consequences of its res- toration, and its effects on the nations of Europe, or to what degree of splendour she would reach, if her commerce, arts, sciences, and manufactures, should be re-established in the hands of an industrious and magnanimous people. (49) Section IX. CARTHAGE. § 1. ON the ruins of the ancient city of Tyre, as- sisted by the knowledge derived from the Phoeni- cians, arose Carthage,(50) the proud rival of Rome, (49) Letters on India, in relation to Egypt, by Taylor. (50) According to the most generally received opinion, 130 years before the foundation of Rome, Ehza, or Dido, a Phoenician prin- cess, to avoid the tyranny of her brother Pygmalion, embarked for Tyre, and landed on the coast of Africa with the companions of her flight. The beauty of the country, her kind reception by some ancient Tyrians settled there, and by the Africans in the vicinity, determined her to fix her residence in that place, where she built Chap. I. OF EUROPE. 49 Maritime despotism of Carthage. who, for a long time, disputed with her the empire of the world. Instigated to conquest by avarice, less jealous of her glory, than greedy of wealth, this re- public rendered herself mistress of all the coasts of Africa, Sicily, and Sardinia. Ruling with tyrannic sway, over the Mediterranean, to the very pillars of Hercules, she ventured to prohibit all foreigners from staying longer than five days in the ports of Sardinia, allowing them to purchase only what was necessary for repairs, or for religious sacrifices :(5l) she attempted to prevent the Romans even from washing their hands in the sea of Sicily. the city of Carthage.* This establishment was nothing less than a conquest. Dido paid a tribute for tJie land granted to her ; and this tribute existed for several centuries, until the Carthaginians, be- come more powerful, rendered, in their turn, the same people tri- butary to them. (51) Polybius Hist. lib. 3. ah. 3. This prohibition is contained in tlie first treaty between tl>e Romans and Carthaginians, about 23 years before the invasion of Greece by Xerxes. As throwing some light on the state ot navigation at that period, it may not be unacceptable to the reader, to see it entire, as given us by Polybius : " Between the Romans and their allies, there shall be peace and alliance upon these conditions. Neither the Romans nor their allies shall sail beyond the Fair promontory, (lying on the north side of Carthage) unless compelled by bad weather or an enemy. And, in case they are forced beyond it, they shall not be allowed to take or purchase any (liing, except what is barely necessary for refitting their vessels, or for sacrifice ; and they shall depart in five days. * See Virgil's ^Tlneid, Ijook 1, 1. 340—367 Vor. I. H 50 THE MARITIME LAW Part I, Great commerce and maritime power of Carthage. 2. The Carthaginians, actuated by an insatiable cupidity, with no other view than gain, pursued wealth wherever it could be found, and seized on every thing they thought fit to take, without any re- gard to the rights of property. Their maritime pro- gress, rapid and extensive, quickly produced luxury and audacity, which usually follow in the train of suc- cess. About the close of the second Punic war, Car- thage reckoned within its walls, more than 700,000 inhabitants, and was the capital of more than 300 ci- ties in Africa. She had sent colonies to Spain, Sici- ly, Sardinia, and the Balearian islands, which became populous and powerful. Her ships, universally re- spected, made, every day, new conquests. It is even believed, that the Carthaginians penetrated to Ame- rica ; a discovery which their distrustful and suspicious The merchants who shall offer any goods to sale in Sardinia, or any part of Africa, shall pay no customs, but only the usual fees to the scribe and crier ; and the public faith shall be a security to the mer- chant for whatever he shall sell in the presence of these officers. If any of the Romans land in that part of Sicily which belongs to the Carthaginians, they shall suffer no wrong or violence in any thing. The Carthaginians shall not offer any injury to the Ardeates, Anti- ates.Laurentines, Circoeans, Tarracinians, or any other people of the Latins, that have submitted to the Roman jurisdiction. Nor shall they possess themselves of any city of the Latins thatis not subject to the Romans. If any one of those be taken, it shall be delivered to the Romans in its entire slate. The Carthaginians shall not build any fortress in the Latin territory, and if they land there in a hostile manner, they shall depart before night." Hampton's Tram- lation T. Chap. I. OF EUROPE. 51 Jealousies between Rome and Carthage, cause of the first Punic war. policy induced them unanimously to conceal from other nations.* 3. The desire of securing and extending their con- quests in Sicily, the necessity of humbling Rome, who regarded them as haughty rivals, and a determmation to maintain their maritime and commercial empire, were the true motives which led to the first Punic W'ar. The Romans were, no doubt, animated by si- milar motives. It is also probable, that the possession of Sicily and Sardinia, which would naturally be the prize of the victors, had a powerful influence on the resolution taken by the Roman Senate, to enter into war with the Carthas^inians. This war irave rise to many naval combats, which were tollowed by a peace, very disadvantageous to Carthage. 4. Hamilcar Barca, who was charged with the ne- gotiations, subscribed, with regret, to the hard con- ditions, which the distress of the republic compelled him to accept. On this account, he felt the most vio- lent indignation against the Romans, whom he ac- cused of abusing the advantages they had gained ; but his hatred was exasperated to the highest pitch, when the Senate not content with the very hard terms of the treaty, refused to ratify it, until others, !?till more offensive, were added. Plamilcar acquies- ced J but the strong resentment which he cherished, must be regarded as one of the principal causes oi: • Tiiis is a vague conjee'. urc restinjj oti no authority. See Kcbertsoi'.'; History of America, book 1 T. 52 THE MARITIME LAW Part 1. Second Punic war. — Successes and losses of Hannijjal. the second Panic war, since it induced him to inspire the young Hannibal with the deepest hatred against Rome. Hannibal commenced hostilities in Spain ; but the Romans had, for some time, authorised prov- ocations towards his father, and brother-in-law As- drubal, that in some degree justified the Carthagini- ans in coming to an open rupture. With the olive branch in one hand, and his sword in the other, Hannibal opened his way through the Pyrenees, and across the summit of the Alps. After the battle of Trebia, so advantageous to the Carthaginians, their leader was enabled to obtain a glorious victory, and to triumph over his enemies at Cannae. 5. The Romans, instructed by defeat, confined themselves to carrying on a war of stratagem, cut off his supplies^ intercepted the contributions he had imposed, and cooled the ardour of the recruits he had collected from every quarter. Hannibal soon perceived an alarming diminution in his military chest, and in his legions. He beheld, in a short time, Spain, Sicily, and Sardinia, snatched from him. The fortune of Scipio finally triumphed over that of Han- nibal, in the field of Zama. Carthage, tlius vanquish- ed, received law from a conqueror, who knew how to make the most of the advantages she had gained. Rome not only disarmed her rival, by obliging her to burn all her fleets in which her principal strength consisted, but imposed heavy contributions, which were exacted with the utmost rigour. " The cause of gods and men at length prevailed," says Livy. Chap. I. OF EUROPE. 53 Third Punic war. — Carthage reduced to extremity. " It was disputed which of the two nations had bro- " ken the peace ; the event of the war decided the " question like an impartial judge, and gave the vic- " tory to the side that had the right. "(52) 6. The third Punic war may be regarded as the last convulsions of a victim, pierced by the fatal knife, and expiring with the loss of blood. The Roman Senate, uneasy, and jealous of the reviving strength of its enervated rival, resolved on her final destruc- tion. The Cartliaginians, alarmed at the armed force which Rome directed towards their capital, yielded to hard necessity, and sought to negotiate. The consuls who commanded the naval forces in per- son, made such extravagant demands, that the Cartha- ginians swore that tliey would meet death rather than submit to such intolerable conditions. This resolu- tion gave rise to a war that lasted two years, at the end of which, Carthage was closely pressed, and at- tacked in her last entrenchments. The Carthagini- ans tried every possible means which could be devi- (52) Viccrunt dii, liominesque ; el id de quo verbis amhigchatur , liter populus Jitdus rnpisset, eventus belli, xelut aqmis judex, unde jus stabat ei victoriam dedit. Tit. Liv. Hist. lib. 21.* * This mode of deciding on the justice or injustice of a war by its success, seems uinvordiy of an imp.irtial and philosophic historian. Polybius, more judicious, fliscusses tlie various causes, and seems to incline to the opinion that the Cailliaginians were the first aggressors, by violating tlie article of the treaty which did not allow them to attack Sagtuitum, or to pass the Ibcrus T. 34 THE MARITIME LAW Part L Final destruction of Carthage. — Rome. sed for their defence, in the exhausted state to which they were reduced. With old timber, and rus- ty iron, they constructed a fleet whicli at first gave some alarm to the Romans, but was soon destroyed. They defended their city to the last, disputing the ground, street after street, to the very citadel, which they set on fire, and threw themselves into the flames. We might almost say of Carthage, what Cicero some- where says of Sardanapalus, that in his death he per- formed the first act of courage exhibited during his life. 7. Thus perished Carthage, about 750 years after its foundation. The Romans built a new city on a part of the ancient scite 3 but it acquired celebrity only during the reign of Augustus, who considered it as the second city in the Roman empire. Maxen- tius reduced it to ashes. It regained sufiicient im- portance, in the time of Genseric, king of the Van- dals, to hold a considerable rank among the cities of Africa, Belisarius reannexed it to the Roman Em^ pire. About the end of the seventh century, it was so completely destroyed by the Saracens, that not a single vestige of it now remains. Section X. ROME. § 1. DIONYSIUS HALICARNASSUS, Polyb- ius, Livy, and other historians, agree in supposing that the Romans, in the first ages of the republic, were unacquainted with navigation, and that they did not begin to build vessels, until some time during Chap. I. OF EUROPE. 55 Fb'st rise of the Roman marine. I the war with the Carthaginians, when the cap- ture of Agrigentuni confirmed them in their design to conquer Sicily. Polybius mentions, as a proof ot the great genius of the Romans, the boldness with which they conceived the project of forming a marine with- out having, at the time, any knowledge of maritime affairs, and the wonderful success which crowned their attempt. (53) 2. Though the marine of the Romans was at first very imperfect, it became the means, afterwards, of extending their conquests, and enabled them to car- ry their arms into Sicily, Sardinia, Corsica, Spain, Africa, and Asia. Historians do not mention any maritime expedition of the Romans, during the reign of the kings of Rome ; but the inference which might be drawn from their silence, is contradicted by the ancient treaties concluded between Rome and Carthage, quoted entire by Polybius, from the ori- ginals preserved, in his time, in the Capitol. (54) By one of these treaties, concluded under the first con- suls of the republic, and in the same year with the expulsion of the kings, it is evident, that from that {5Z) Polybius Hist. lib. I. (5i) Polvbius, loc.cit.* * See ante, p. 49, nolc. — The first treaty was dated in the cor.sulship of L. Junius Brutus and M. Horatius, the 244t]i 3 car of Rome, and in the first jeju- of the republic ; so that tlio Romans must have had some mari- time intercourse with otlier nations dui-big the reign of their kinjrs T. 56 THE MARITIME LAW Part I. Mistakes of liistorians as to the commencement of the Roman marine. time, the Romans possessed ships distinguished from those of their allies, and of their own subjects, and that these could not have been mere merchant-ships, since vessels of a different kind are specified. It is mentioned by Livy, that in the year of Rome 416, which is 74 years before the first Punic w^ar, the Ro- mans having seized on the fleet of the Antiates, caus- ed six of their gallies to be brought up to Rome, and put in places appropriated for the preservation and building of ships.(55) 3. Under the consulship of Caius Junius Brutus, and Emilius Barbulus, the tribune Decius Mus, awa- kened in the Romans an attachment to a marine, by inducing them to create tw^o magistrates, called Du- umvirs^ whose duty it was to superintend the equip- ment of fleets, and every thing which concerned na- vigation. The institution of Duumvirs took place about 50 years before the period assigned by Polyb- ius for the creation of the Roman marine. Yet it is the same historian who gives an account of an insult offered to the Roman fleet, by the Tarentines, which occasioned the war against Tarentum; and It is he who informs us that Valerius, commander of the Ro- (.55) Livy Hist. lib. 8, c. 1 4-.* * The words of Livy are, " Naves Antiatium partivt in na'calia Eomce subductjs, isfc. So that they had their navalia, or docks, for building, repair- ing^, and preserving sliips T. 1 Chap. r. OF EUROPE. 57 Encouragfcment given to navigation by the Romans. man fleet, filled the office of naval Duumvir. [bQ) The Punic wars rendered it necessary for the Romans to bestow more particular attention on the improvement of their marine, which before had no fixed establish- ment. Rome began, at this period, to encourage the' nautical art, by the greatest rewards. The consul Duillius, after having entirely defeated the Cartha- ginian fleet, in the year of Rome, 491, received the thanks of the nation, by an extraordinary triumph, which was the first naval triumph ever seen at Rome. Coins were struck, representing Neptune with his trident, borne in a car. The honours de- creed to Duillius were rendered in some measure permanent, by the privilege granted to him by the Senate, of being always preceded, on going to his house at night, by flambeaus, to light him on his way through the streets of Rome, accompanied with mar- tial music. (57) The monument erected by the repub- lic on this occasion, in order to excite emulation by the constant exhibition of this naval victory, ex- {56) Polybius, lib. I. (57) Cicero, however, finds fault, we know not why, with this practice of Duillius, which he considered as puerile and arrogant. In his I)ook. de Senectute, addressed to Cato, he says, Didllium re-> deuntem a civiia sc£pe videbam puer. Delectahutur crchrofunali et ti' bicina, qua: sihi nuih exemplo privatus sumpsetnt ; tantum licentics dahut e^loria ! Florus was of the same opinion, lib. 2, c. 2, § 10. Non conlentus wniiis did triumpho per vitam omnem tibi a cctna redi' ret, lucere sihifunalia prcccinere sibi tibias jussit quasi quotidie tri- nmpharet. Vol. I. I 58 THE MARITIME LAW Part L Engagements between the Roman and Carthaginian fleets. isted in the time of Pliny, the naturalist. (58) It was a rostral column, with inscriptions suited to the event, and has handed down to posterity, the name of Duil- liuSj and the gratitude of the nation, 4. This first naval action, this brilliant victory over a nation who had long possessed the em- pire of the sea, encouraged the Romans to carry the war into Africa. This design spread terror among the Carthaginians, who always dreaded be- ing attacked in their own territory. Regulus was charged with the execution of this scheme, to pre- vent which, Garthage dispatched to sea a fleet of 350 ga:llies, having on board more than 140,000 men. This was appearing^ says Polybius, in a man- ner suited to the dignity of a nation who had begun to exercise dominion over the sea. (59) The Cartha- ginian fleet, in spite of its superiority in manoeuvring, the lightness of its ships, and all the advantages which arise from experience in navigation, did not dismay Regulus. By means of a machine for grap- phng, called Corvus, invented by DuilHus, he knew he could force the enemy into a situation to be boarded, which was all he Wanted. There were three different and furious actions between these large fleets, manned by a vast number of troops on both sides. In the three engagements, the ad- vantage remained on the side of the Romans, who gained a complete victory. The Carthaginians, it is (58) Pliny Hist. Nat. lib. 34, cap. 7. {59) Polybius Hist. lib. I . CJwp. I. Of EUROPE. 59 •i i ■ ■ , — ' ■■ 'l ... ., J Naval victories of the Romans over the Cartliaginiaiis. I ■ ■ > true, sunk eighty gallics ; but the Romans took six- ty-four, and sunk thirty i while the Carthaginians did not take one. (60) b. Such was the first essay of the Roman marine. The next year, the republic sent to sea one hundred and fifty gallies* under Servius and Emilius. The command of the naval armament was preferred to that of the land forces. The Carthaginian fleet, composed of two hundred gallies, advanced ngainst the enemy. The Romans, on their part, met the encounter, as soon astliey perceived the approach of the other fleet, and, though inferior in number, at- tacked it so briskly, and with such superior valour, that it hardly seemed a battle ; they put them entirely to the rout, and the Carthaginians lost a hundred and fourteen oallies. The consuls, who wished to return immediately to Rome, to enjoy the triumph which awaited them, obstinately kept to sea, in spite of the remonstrances of the pilots, who foresaw an ap- proaching storm. A tempest arose with such tre- mendous violence, that out of three hundred and six- ty-four gallies, scarcely eighty were saved ; the rest were wrecked, or stranded on the coast. Polybius remarks, in his account of this event, that history fur- nished no example of so great a loss. (6 1 ) By this mis- (60) Polybius Hist. lib. I. (61) Polybius, lib. 1. cli. 3. * This number is not correct, for Polybius says, Uie Romans put vo sea with a fleet of 350 ships ; and that of 4-6+ ships, only 80 es- caped the storm. The number of the Roman fleet added to the THE MARITIME LAW Fart I Losses of the Romans. — They build a new fieet .. . i -- ■■ • ■ . xii fortune of the Romans, Carthage regained the mari- time superiority she had lost. She omitted no efforts to destroy the remnant of the Roman marine. She sent an army into Sicily, composed of veterans and new levies, with one hundred and forty elephants. Two hundred gallies protected the operations of the land forces, and insulted the enemy wherever they met them. 6. The Romans, in three months, built a new fieet of one hundred and forty sail, an effort which Polybius regards as almost incredible. (62) The con- suls who commanded, were joined, in their course, by the remainder of their former marine, which increas- ed the number of their gallies to two hundred and twenty.* With these forces they proceeded against Palermo, which they took by assault. It was the most valuable place the Carthaginians possessed in Sicily. But the inexperience of the Romans in ma- noeuvring their vessels, cost them one hundred and fifty, which were destroyed by a violent storm, near Cape Palinurus. Rome, almost discouraged by so many successive disasters, relinquished, for a time, the empire of the sea, and confined herself to expe- ditions on land, which she then regarded as more ships before captured, makes that of 4^4, so that the Roman fleet was superior to that of the Carthaginians T. (62) Polybius, lib. 1. ch. 3.* • The historian states the number of the new fleet to be 220, and the remnant of the old fleet which joined it, made the whole 300 smI T. Chap. I. OF EUROPE. $1 Losses and defeat of the Romans- conducive to the glory and majesty of the republic, than all the wealth to be acquired by commerce. (63) 7. This determination was of short continuance. The Carthaginians having dispatched a fleet to take possession of Sicily, the Romans, with the greatesl: expedition, equipped anotlier to oppose this invasion, which so deeply wounded their national pride. (64) This fleet, fitted out with so much precipitation, and at great expence, was unable to resist the Cartha- ginian forces, and was destroyed by them in the fa- mous battle oi Drepanumy in \Vhich they sunk eighty gallies, and took ninety-three. The consul Claudi- us, who commanded the Roman fleet, thought him- self fortunate to bring off the residue in safety. This defeat was ascribed to his misconduct, and he was punished by the loss of his consulate. The Sen- ate not disheartened, equipped a new fleet, and gave the command of it to Lutatius, distinguished for the treaty which terminated the first Punic war. The Ro- man fleet attacked and beat that of the Carthagini- ans, sunk fifty of their ships, and captured sixty. This victory put an end to a long and bloody war, in which (63) Pobbius, ihid. " Tiie Romans, after such heavy and re- peated losses, though their ardour was not abated, yet thought it more for the honour and glory of the empire, under the pressure of such great evils, wholly to abstain from maritime expeditions." (6+) Polybius, i7;irf. "As soon as the news of this misfortune reached Rome, tliey immediately equipped a now armament and dispatched it to Sicily." A52 THE MARITIME LAW Parti. Triumph of the Romans over tlie Ciu-thaginians. the two republics exhibited a mutual hatred far ex- ceeding their strength. (G5.) It continued twenty- three years without interruption, and the Romans reaped all the advantages resulting from the contest. The peaceful possession of Sicily, Sardinia, and Cor- sica, was confirmed to them by the treaty of peace. S. At the termination of the second Punic war, Scipio, conqueror of Hannibal in Africa, granted peace to the Carthaginians, on condition, that in fu- ture they should keep but ten ships, and that all the rest should be delivered up to the Romans, which was carried into effect. (66) Scipio, on his return to Rome, after receiving the honours of a triumph, gave public thanks to the Gods who had granted him such a splendid victory. He erected a temple to the divinity who presides over storms, for having snatch- ed him and his fleet, from a furious tempest in the sea of Corsica, on their return from Africa. On the temple was placed the following inscription : Te, quoqus, tempestas, meritum delubra fatemur , Cum pene est Coisis obrutus classis aquis. 9. The splendour of these triumphs, and the pub- lic homage rendered to the Gods, the extraordinary abundance of grain and other commodities, which, after this victory, flow^ed into Rome, and the advan- ta<»-e of possessing the islands of Sicily and Sardinia, (65) Polybius, he. cit. They contended with more animosity fhan Strength. {66) Livylib, SO, §37, ei43. Cliap. I. or EUROPE. ' 6.t Rapid advancement of the Roman marine. inspired the Romans with the strongest attachraent to a marine. 10. From this period Rome so improved in the science of navigation, that she was soon in a con- dition to chastise the Illyrians, who were addicted to piracy, and committed depredations on the ncigli- bouring nations. (67) She also compelled Phihp, king of Macedon, to raise the siege of the cities of Oricum and Apollonia, in the possession of the Ro- mans on the coasts of Enirus and Macedonia, and to burn a part o^ liis fleet. (68) Philip was not restrain- ed by this first check. Some years after, he put to sea a numerous fleet, once more to try his strength with the Romans ; but having been completely van- quished, he sued for peace, which he obtained on very hard terms, among others, that he should deliver up all his covered gallies to the victors. (69) Perseus, son of Philip, being joined by the Illyrians, wished also to try the fortune of a battle with the Romans, but was entirely defeated and made prisoner, with his three sons, and Gentius, king of Illyria. These captives, exhibited to the view of the Romans, en- hanced the splendour of the trophies of the victor, C. Fulvius, to whom the honours of a triumph had been decreed. (70) ((S7) Livy, lib. 20. Floras, lib. I, cap. 5. (68) Livy, lib. 24, § 40. (69) Lib. 33, §30. (70) Livy, lib. 45, § 43. Vclicius Palerculu^ li''. L § 'V 5* THE MARITIME LAW Part I. Great maritime power of tlie Romkns. 11. Antiochus was not more fortunate. Having been defeated several times, he v^^as compelled, by a treaty of peace, to shut himself up in Syria, to aban- don to the Romans, all his possessions in Asia, and to deliver up all his vessels of war, excepting ten brigantines, to which number he was limited. He attempted afterwards to re-establish his marine, but the Romans set fire to the vessels he had ordered to be built.(71) The Etolians, the Istrians, and Narbis, the Spartan usurper, who infested the Grecian seas with his piracies, suffered the same fate. (72) 12. The total ruin of Carthage, which followed the third Punic war, subjected all Africa to the Roman power. This province, by its supplies of corn, after- wards became of great service to Rome. The burn- ing of Corinth, which took place a short time after, completed the subjection of Greece, and reduced it to a servitude rendered more gloomy from its having so long been accustomed to command. Every thing, at that period, yielded to the power of the Roman republic. Mithridates, however, who dared to re- sist the Roman power, at first with adequate courage, and afterwards by artifice and fraud, would have made Rome tremble, if he had not been obliged to contend against a Sylla, a LucuUus, and a Pompey, (7 1) FlomsiZ/si. lib. 2, cap. 8, § 12—18. (72) Uvy, lib. 35. Polybius, lib. 13, in excerpt. amp. I. OF EUROPE. 65 Conquests of tlie Romans. — Destruction of tlie pirates. ■ ■ ■ ' J ■ ' . - to whom he was at last compelled to yield, after a contest of twenty years.(73) 13. "WTiilc Rome was enga*]jed in the conquest of Africa and Asia, in subduing the power of Jugurtha, king of Numidia, of Tigranes, king of Arminia, and in quelling domestic troubles, Cilicia became a nur- sery of pirates. Formidable by their depredations, they kept up a connexion and correspondence with various places, to facilitate their descents on the coast, to ravage the country, put the chief maritime towns under contribution, and to rifle the treasures of the most celebrated temples. The Roman people complained loudly of the dearness of provisions, and the necessaries of life, which in their passage from Egypt, Sicily and Sardinia, were intercepted by these pirates. Pompey was, at length, ordered with a nu- merous fleet, to put an end to a war, the consequen- ces of which appeared dangerous. Success attended the talents and exertions of this great man. He soon crushed these robbers, and, prohibiting them from the use of the sea, restored liberty and safety to na- vigation. (74) 14. The conquests of the Romans in Africa and Asia, brought immense riches, before unknown to (73) Plutarch, in vita St/llct, Lucull. et Pomp. (74) Plutarch, in Tita Pomp. Floras, lib. 3, c.6. Veil. Paterr. ib. 2, § 31 — 32. Cicero pro lege Manilia. Vol. I. K m THE MARITIME LAW Pari /. Increase of wealth, luxury, and refinement, among the Romans. them. This sudden influx of wealth, introduced ex- cessive luxury and elegant refinement, which per- vaded all classes of society. The love of pleasure, pomp, and magnificence, banished the ancient se- verity of manners. The nation, become more rich, po- lished and voluptuous, despising the humble poverty of their ancestors, imagined a thousand wants, which gradually undermined their former ideas of virtue. (7 5) 15'. The Romans, from that period, goaded with the lust of conquest, which promised them new riches, were not content with having obtained the empire of the Mediterranean. They aspired to the dominion of a new sea, and to the acquisition of un- known regions. While Caesar held the government of Gaul, the Romans ventured to navigate the Atlan- tic ocean, and for this purpose, they caused ships to be constructed stronger than any they had before possessed. 16. The Venetes, inhabitants of Vannes, were jKDwerful at sea, and carried on a commerce with Great-Britain. They ruled over the adjacent coasts, and exacted tribute from the inhabitants. They as- sassinated the ambassadors sent by Caesar to request (75) Quippe remoto Carlhaginis metut suhlataque imperii aniula, non gradu, sed prcecipiti cursu a virtute descitvin, ad vitia transcur- sum ; vetus disciplina deserta, nova inducia. Veil. Paterc. lib. 2, cap. 1. Paulatim discessum ad delinimenta victor um, balnea, et con- viviorum elegantiam, idque apud imperitos humanitas •cocatvr. Taci- tus Annal. lib. 2, Chap. I. OF EUROPE. 67 Invasion of England..— Victories and death of Cisar. their alliance, and he punished their barbarity, by- vanquishing them in a sea-fight. (76) After this vic- tory, he resolved to pass over to England, a country unknown to the Romans, and even to the Gauls, who had barely touched on its coasts, to purchase some articles of which they stood in need. Genius and courage were the companions of Caesar in this bold and hazardous enterprise -, and he was fortunate enough, notwithstanding the accidents he encoun- tered, to make good his descent upon England, and to compel a people, ferocious in their manners, and fanatics for hberty, to pay tribute to the Romans. 17. The additional knowledge in marine affairs, which Caesar had acquired among the Gauls, was of great service to him daring the civil wars that called him to Italy. The courage and celerity with which he performed all his maritime expeditions, en- sured him the defeat of Pompey, and the submission of Cleopatra. He returned to Rome, where the honours of a triumph were decreed to him, and where he finished the enslaving of his country, by making himself absolute master. When Caesar was preparing to put the Roman marine in a more flourishing condition, he fell beneath the strokes of assassins, in the midst of the senate. (77) 1 8. After the tragic death of this hero, Augustus, though inexperienced in the art of w ar, and naval (76) Comment. Caesar, lib. 3, §2. (77) Plutarch, rita Casor. 6« THE MARITIME LAW Part L Judicious ettablishment of the Roman marine. affairs, knew how to choose able generals for the land and sea service, by the aid of whose judgment and ex- perience, he gained many victories. He began by entirely destroying the naval forces of the younger Pompey, who endeavoured, in vain, to support the name oi Greats so justly acquired by his father. The famous battle of Actium placed at his discretion the rival whom he most feared. (78) He knew how to profit by this great victory, the effects of which ena- bled him to establish a system of marine, that lasted during the reigns of several of his imperial successors. It consisted in having three grand divisions of his na- val forces well maintained : One of them at Frejus, in Narbonese Gaul, to keep in awe the coasts of Spain, and that part of Languedoc and Provence which is washed by the Mediterranean ; another at Cape Misene, to protect the navigation of the lower, or Etrurian sea, of the islands of Sicily, Sardinia, and Corsica ; the third at Ravenna, to secure the naviga- tion of the upper, or Adriatic sea. Besides these squadrons, he had at Misene and Ravenna, a consid- erable number of soldiers called Classiarii, who were constantly exercised for maritime warfare, and were (78) Octavius, after the defeat of Anthony, remained alone, and having no longer a competitor, he was not slow in becoming mas- ter of a republic, which, by the various shocks it had received, was unable to prevent it. With him began the Roman empire, which he swayed under the name of Augustus. In changing his name, he appears to have changed his character. Octavius was cruel and brave. Augustus was humane, and extremely prudent in danger. Chap. L OF EUROPE. Voyage* and diBcoveries during the xeign of Auffustiis. always ready to embark in the sea service.(79) Au- gustus, also equipped vessels to make new discoveries on the coast of vVtrica towards the equator ; he sent some to survey the coasts of Europe, as far as the frontiers oftheCimbric Chersoncsus ; and ordered others, called Lusoricc, to ascend the great rivers whose mouths were known. (80) 19. The Romans had never undertaken so many perilous and important voyages, as during the reign of Augustus. It is to this period that Venus alludes, when, in the iEneid, she remonstrates w^ith Jupiter, who had promised her the empire of the sea and the Jand for the descendants of the Trojans. (81) But (79) Pvimores Classiariorum Misnensium labefactare connixa est. Tacit, anml. 15, cap. 51. The following inscription is found on an ancient marble: MIL. CL. PR. R. that is. Miles Classis frcvtoria: Raiemiatis. (SO) Vegetius, de re navali. lib. 4. Schoeffcr, de militia navali. Jib. 2, cap. 3. (81) Alloquitur Venus : O qui res hominumque deumqne jEternis regis imperils, et fulmine terres, Quid mens Jlineas, in le committere tnntum Quid Troes potuere ? Quibus tot J'unera passis, Cuncius ob Italiam terrarum clauditur orbis ? Certe liinc Romanos olim voheniibus antus Hine fore ductores revocato a sanguine Teucri, Qui mare, qui terras omni ditione ienerent, PoHicitus : qua te genitor sententia vertit ? Virgil iEneid, lib. J, v. 2:^0. Oh thou ! whose sacred and eternal sway, Aw'd by thy thunders^ men and Gods obey ; 70 THE MARITIME LAAV Parti, The successors of Augustus neglect tlxe marine. when Cassandra, the daughter of Priam, in Lvco- phron,* made a similar prediction, it must be under- stood of a period long anterior to Augustus. These predictions might be taken for exaggerations, if Dio- nysius Halicarnassus,(82) in speaking of the trans- actions of his time, had not remarked, that Rome was the mistress of the sea, not only of that within the pillars of Hercules, but of the whole navigable ocean. 20. After the death of Augustus, most of the em- perors who succeeded him, by birth-right, by fraud, by favour, or by means of revolted legions, retained no partiality for the marine, and it was gradually abandoned. History mentions only some hazardous expeditions, in which whim and caprice were more What have mj poor, exhausted Trojans done ? Or what, alas ! my dear, unhappy son ? Still for the sake of Italy, deny'd All other regions, all the world beside ? Sure, once you promis'd, that a race divine Of Roman chiefs should spring from Teucer's line ; The world in future ages to command. And in their empire grasp the sea and land. Pitt's Translation. * A Greek poet of Chalcis, who lived in the time of Ptolemy Philadelphus. None of his compositions remain, except a poem entitled Cassandra, which contains the prophecies supposed to be uttered by the daughter of Priam, during the Trojan war. He is thus mentioned by Statins. Sylv. lib, 5, line 157 : Carmina Battiados latebrasque Lycophronis atri T. (82) Dionysius Halicarn. lib. J. Chap. I. OF EUROPE. 71 The naval exploits of Tiberius, ridiculous. conspicuous than true courage, or a just ambition to support the dignity of the maritime empire, which the Romans had acquired with so much trouble, and so many sacrifices. 21. Tiberius, whose ideas were wholly absorbed m vice and debauchery, possessed no other fleets than those created by Augustus, and which he suf- fered to decay. (83) Caligula, imitating the folly of Xerxes, as a great maritime exploit, threw a magni- ficent bridge over an arm of the sea, which separates Baice from Puteoli. He rode over it, dressed in a warlike habit, and the next day caused the honours of a naval triumph to be decreed to him, which he could adorn only with cockle-shells collected on the Baiavian coast, at the time of his expedition for the conquestoi Britain, anexpedition stamped with equal folly. (»4) Some ships were built by order of this prince, but they were designed not so much for real service, as for the purpose of luxury, and absurd magnificence. In a vessel made of cedar, its stern decked with jewels, and furnished with porticoes, gardens, and baths, he sailed along the coast of Italy, to the sound of melodious instruments. (85) (83) Suetonius, vita August, et Tiberi. Tacitus anna/, lib. 4. (81-) Suetonius, vita Calig. § 19. (85) Suetonius, vita Calig. § 37. 72 THE MARITIME LAW Part I. Naval triumph of Claudius. — Vespasian. 22. Claudius, though of slender merit, was not less ambitious of the honours of a triumph. For this purpose, he dispatched a considerable fleet under the command of Plotius, a Roman senator, to make a descent on England. Having met with success, Claudius proceeded to England, to take possession of the country in person, and he returned afterwards to Rome, where he enjoyed a splendid triumph, and acquired the surname of Brittannicus, which the senate had the meanness to confer upon him. He placed a naval crown of gold on his palace, and on the prow of the ship in which he sailed. (36) Nero, after embellishing the harbour, constructed by his predecessor at the mouth of the Nile, engaged in no maritime enterprise, except to cause dust to be brought from Alexandria, for the use of the wrestlers, and in which to bury the victims of his atrocities. (87) Galba and Otho, who both suffered the same fate, were scarcely seated on the throne, before they were hurled from it, and had no time to attend to a marine. Vitellius, who succeeded them, had a fleet for his defence j but by the influence of Bassus, its commander, it declared, afterwards in favour of Vespasian, at that time its true sovereign. (88) Ves- pasian, on his return to Rome, after his expedi- tion, felt so vain of every thing he performed, that he had a medal struck in honour of himself, on the (86) Sueton. vita Claud. § 17, 18, 19. (87) Sueton. vita J^ero. Tacit, annal. lib. 14-. (88) Tacit. Hist. lib. 3, § 12. Sueton. lib. 7. § 8. Chap. L OF EUROPE. 73 Trajan revives the maritime power of the Romans. verse of which, he was represented under the figure of Neptune, having his right foot on a globe, and holding in his right hand the end of a ship's prow, and in his left, a trident, with this legend, Xeptuno Reduci. Titus, who had taken part in the expedi- tions of his father, solely occupied with the care of rendering the people happy by his beneficence, en- tirely neglected the marine, as did his successors, Domitian and Nerva. 23. Trajan, seated on the imperial throne, revived the ancient maritime glory of the Romans. He con- structed a harbour at Cejitumcelli, now called C/r^/Y/'a- Vecchiaj defended by a castle erected in the sea. This work appeared to be so advantageous and convenient for shipping, that the remembrance o f it was consecrated by a medal, representing a port adorned with different edifices, in the midst of which appeared the imperial galley surrrounded by- others, with these words, Poriitm Trajaiii, S. C. Trajan also built, at his own expence, a magnificent harbour at Ancona, to open a communication from Italy with the Adriatic sea. The senate and people of Rome, desirous of preserving the memory of this useful work, consecrated it by an inscription, formerly to be seen in that harbour, and which has been ])rer,erved by Onuphrus. The victories gained by Trajan over the Persians, and various other nations, made so much noise, in the world, that many states, and, among others, the Indians, sent Vol.. T. K 74 THE MARITIME LAW Part I. Adrian, and his successors, neglect the Roman marine. deputies to him. Eusebius, in his Chronicles, (an. 2108) mentions that this prince established a fleet on the Red sea, for the purpose of ravaging the coast of India ; in mari ruhro classem instituit, ut per earn India, fines vastarent. Scaliger, however, on the au- thority of Dion, asserts tliat this project was never carried into effect. It is highly probable, that the fear which the Indians felt of his power, induced them to seek his friendship. Adrian, who succeeded him, made no use of the fleets left by his predecessor, except for excursions of pleasure or convenience. He visiied England, Sicily, Sardinia, and Africa, for no other purpose than to converse with men of learning, whose praises he was ambitious to obtain. 24. The succeeding emperors did nothing to en- courage the marine ; but, though reduced, it still pre- served to the Romans, their maritime empire, and, it was under that title, that Pertinax remitted the trib- ute which these tyrants had imposed on the seas. (89) 25. The reigns of the emperors, who succeeded one another so rapidly towards the decline of the em- pire, furnish the historian with no remarkable cir- cumstance relative to the marine. Instead of aug- menting, or, at least, maintaining it on its ancient foot- ing, they suffered it to decay and fall to ruin; so that when the seat of the empire was transferred to Con- (89) Stypman.jws maratim;\izxi l,cap. 6, § \C^- Cliap. I. OF EUROPE. Progress of the bai-barians.— Destruction of the Roman empire. stantinople, the emperors beheld themselves threat- ened by the fleets of nations, issuing from the neigh- bouring countries of Thrace, and the vicinity of the Palus Meotis. The Goths and Bulgarians, notwith- standing the naval victories of Belisarius and Narses, spread terror in every quarter. The Saracens alone, dared to present themselves before this new capital of the world, and would have taken it, had not their numerous fleet been burnt by the Greek fires, an in- fernal contrivance, which the timid and dastardly be- iieged, first put into operation. (90) 26. The total destruction of the empire of the Cae- sars, was already written in the book of fate. It pass- ed into the hands of the Ottomans, whom the Ro- mans saw rise into existence as a nation, and who first made themselves known by soliciting their friendship as a favour. They beheld this power in- (90) The Greek fire is a Iioriid compound of pitch, sulphur, and bitumen, which, instead u( being exlir.guished by water, burns in it with more violence. Callinicus, a native of Heliopolis in Egypt, was the inventor of it. The discovery was kept among the secrets of the empire. Constantine Forphyrogenitus, in Iiis instructions drawn up for his son, for the administration of the stale, tells him, " When the barbarians sliail demand the Greek lire, give for an- swer, that the angel who brought it from heaven, forbade its being- communicated to strangers, and that those of our own people who dared to give it to otiiers, had been struck, with lightning on enter- ing the temples."* * Sec Gibbon's n^rline and Tx^, ch. 52 T. 76 THE MARITIME LAW Part I. Modern maritime states. — Venice. crease, extend, and grow rich with the spoils of the Roman people, without imagining that it was des- tined, at a future day, to extinguish their name in the same manner as so many others had been swallowed up in that of Rome. ARTICLE III. Of the Modern States who have claimed the empire of the Sea, prior to the discovery of the New JVorld. MODERN History, also, affords examples of the inordinate claims of certain European powers, to the empire of the sea, and whose conduct in this respect, exhibits a striking contrast to the moderation of other nations, who acknowledge the imprescriptible lav.'S of nature, and the vanity of such pretensions. Section I. VENICE. § 1. WHILE the Roman empire was crumbling to pieces in the hands of its barbarous invaders, on the western shore of the Adriatic, over which it was destined to ru]e,(91) a new city rose in splendour (91) Sannazarius, a celebrated poet, has described, in beautiful verse, the magnificence and maritime sovereignty of Venice : " Viderat adriacis Venetam Neptunus in undis ■ Stare urbem, et toto ponerejuja mari. Nuncmihi Tarpeias quumwnvis, Jupiter, arccs Ohjice, et ilia tui mama inartis, ait ; Si Tiberim pelago prefers, urbem aspice utramque, lllam homines dicas, banc potuisse Decs." Chap. /. OF EUROPE. 77 Rapid giowtli of the Venetian marine. — The crusades. from the bosom of the waves. The maritime power of Venice was coeval with her birth, and rapidJy grew into maturity and strength. After subduing the Istrian and Dalmatian pirates, she boldly attack- ed the Normans and Saracens, and vanquished them in a naval battle. She triumphed, afterwards, over the Hungarians, and subjected the Naventines, who infested the Adriatic gulf with their piracies. These first brilliant e^.says, gained her the great reputation which her marine afterwards enjoyed. 'J. The crusades soon furnished an excellent op- portunity for Venice to advance her glory. The chris- tian princes having confederated in 1099, to deliver Palestine from the oppression of the Mussulmen, commenced tlicir career by signal victories over the infidels, and by taking the cities of Nice and Anti- och. The Venetians, invited to the assistance of the crusaders, arrived in the seas of Asia Minor, with a fleet of two hundred sail, under the command of Henry Contarini, and Michael Vitalis, son of the doge. Their first operation was to take Smyrna. They afterwards seized on Joppa, and, keeping along the borders of Palestine, they aided the French in the capture of x\skalon, and other places on that coast. 3. The affairs of the christians in the Holy Land, under Count Baldwin, falling into disorder, they im- plored new succours fVom the Venetians. Venice 78 THE MARITIME EAW Part I. Maritime power of the Venetians. — Their naval victories. ■ ST , , . , ■ ■ ■ ■■ ■ -Li:a soon equipped a considerable armament, and entrust- ed it to the command of Dominichus Michieli, the doge ; who, having surprised the Ottomans, while they were besieging Joppa, by sea and land, made a dreadful carnage among them, carried off a number of their vessels, dispersed the rest, and com- pelled them to abandon their enterprise. After this expedition, Michieli directed his victorious fleet to the coast of Tyre. This city, which so wearied the valour of Alexander the Great, and disheartened that of Baldwin, could not hold out against the skill and courage of the Venetians. They laid siege to it by sea, and took it. 4. The preponderance acquired by the Venetians over the Adriatic sea, inconsequence of along series of victories and brilliant actions, gained them such high consideration and respect, that in 1177, they took advantage of the enthusiasm of Pope Alexander III, to obtain from him a grant of the sovereignty of the sea. The Pope, persecuted by the Emperor, Frederick Barbarossa, took refuge in Venice, where he was received with the honours due to his dignity. The Emperor, wishing to punish the Venetians for their partiality, sent his son Otho against them, with a fleet of 75 gallies. The doge, Sebastian Ziani, met the prince with a fleet of 30 gallies. Notwith- standing this inequality of forces, he engaged the enemy on the coast of Istria, entirely defeated the imperial fleet, took 48 gallies, and brought Otho a prisoner to Venice, Vhap. I. OF EUROPE. 79 Tlie pope confers on the Vcncthins the sovereignty of t!\e Adriatic sea. 5. The pope, overjoyed at this success, went out to receive the victorious doge, and, to immortalise his triumph, presented him his ring, with these words : " Use this as a chain, to hold the waves in " subjection to the empire of Venice ; with this " ring espouse the sea, and hereafter, on the same " day, in every year, let the celebration of this mar- " riage be renewed by you and your successors. By " tliis ceremony, posterity will learn, that your arms " have acquired the vast dominion of the waves, and " that the sea is subject to you, as the wife to her " husband. "(92) Such is the origin of tlie pompous ceremony performed every year at Venice on the day of the ascension. (93) 6. By the favour of the christian princes, estab- lished in the east, the Venetians obtained many pri- vileges, which gave extension and security to their maritime commerce, Tliey possessed for a long time, the kingdom ot Cyprus, obtained, by stratagem, (92) This ridiculous prediction ot the pope, and these singular espousals, did not prevent the French arniy, some centuries after- wards, from dissolving the marriage. By the treaty ot Campo For- mio, confirmed by that of Luneville, the 9 ih of February, 1 801, between France and the emperor of Germany, the Adriatic has received a second husband. (95) Ftsto A.icensionis Domini quot annis, riiu sokmv.i, Dux, nari Buctntauro dzcia, vtctus coiuitante umplissiiuo Senatu. ad perpetuari' dum sibi maris dominium, annulum in medias undas projecit, dicaido : desponrnmni le mare, i7isignum veri el perpelui domiini. Paulus Me- rula, in Cosjnographia, part 2, lib. \, cap. .3. 89 THE MARITIME LAW Parti. Great na^■al power and commerce of the Venetians. the Morea, the island of Candia, and a part of the Archipelago. They were masters of Constantinople, Naples, Sicily, and a great part of Italy. The cru- sades, so ruinous to the princes of Europe, were a source of riches, power, and reputation to Venice. Her citizens had, for a long period, maintained con- siderable maritime wars against the Greeks, the Sar- acens, the Pisans, the Genoese, the dukes of Milan, the Turks, and the English. Their superior skill, and naval resources, enabled them to triumph over these nations, and rendered them formidable to all Europe. From the farthest shore of the Black sea, to the coasts of England, they enjoyed an extensive and flourish- ins: commerce. Their fleets were numerous and well equipped ; skilful workmen fllled their spacious and magnificent arsenal ; and they were the only nation that excelled in naval architecture. Able and experienced mariners, and galley-crews, com- posed of men vigorous and indefatigable, of Cy- priots, of Candians, and Sclavonians, rendered their naval forces superior to any in Europe or Asia. 7. The Venetians, with so many advantages at sea, were too conscious of their superiority, to sup- pose that they ought to behave with justice and mo- deration towards commercial nations. Their spolia- tions and vexations, were so provoking, that Helian, the French ambassador, in a discourse delivered in the German diet, did not scruple to compare them to sea-monsters, rocks, and tempests. This harangue. Chap.L OF EUROPE. 81 The power of Venice excites the jealousy of other nations. full of invective, shews to what degree they had ex-* cited the general detestation of (94) other nations. S. The grandeur and power of Venice had long given umbrage to the princes of Europe. Pope Julius II. in 1509, took advantage of this jea- lousy, to recover several Italian cities, considered by him as the patrimony of the church. He excited the emperor, the king of France, the king of Naples, the duke of Savoy, and the duke of Ferrara, to join in a league at Cambray, and to determine on the de- struction of this ambitious republic. She owed her preservation to dissensions among the combined pow- ers, and to the gold she employed to excite divisions. 9. Venice, having escaped, by refined policy, from such imminent danger, could not guard against the unexpected check she soon after received from the Portuguese, who had sailed round the Cape of Good Hope. The means which slic employed to defeat (94-) " They call themselves," exclaimed this ambassador, " the lords and masters of the sea, which ought rather to be common to all nations, or at lea>t, to belong to your imperial majesty, in pre- ference to all other princes ; and, as if thev were the husband of Thetis, or the wives of Neptune, they espouse the sea, every year, by throwing into it, a ring. Whoever heard of espousing the ele- ments ? The Venetians alone are capable of so much arrogance and folly ; a nation who have inherited the avarice and cruelty of their ancestors. It is an invention worthy of the«e insatiable whales, these infamous corsairs, these pitiless Cyclopses and Polyphemuses, who beset every coast, and are more to be feared than the mon- sters of the deep ; than shoals, rocks or tempests." Vol. I. L 82 THE MARITIME LAW Parti Decline of the commerce, and navitl power of Venice. their enterprises, and to destroy their establishments, by sen.iin^ engineers, artificers, and warlike stores to the sultan of Eo^ypt, and zamorin of Calcutta, pro- claimed her weakness and despair. The commerce ot the East-Indies, which the Venetians had carried on almost exclusively, by the Red sea and Egypt, and by the caravans of the maritime cities of Asia^ now left her, never to return. Deprived of these re- sources, Venice ceased to attend to naval affairs, and no longer ranked among maritime powers. 10. This republic, so renowned for its wisdom and firmness, the rival of kings and emperors, and which held, for a long time, the balance of Europe, was sup- ported, during the last century, by its absolute aris- tocracy, its state inquisitors, and the tyrannical pre- cautions with which it was surrounded. Suspicious and pusillanimous from principle ; dark and circum- spect through weakness, but always affecting the chi- merical sovereignty of the sea, instead of scrupulous- ly observing her promised neutrality, she was so un- wise as to form a secret coalition with Austria, during the last war against the French republic. The per- fidious plots of the senate against the French were discovered, and the result of this short-sighted policy has been, her subjection to the emperor of Germany, and the merited contempt of the world. (95) (93) Venice might easily resume its ancient splendour, if the Anstr'ati s^overnment, its present possessor, were to put in execu- tion the plan ot reioini presented to it, in 1801, hy Francois-Jacques Chap. /. OF EUROPE. 83 The maritime power of Genoa Section II, GENOA. § 1. THE republic of Genoa, which has always supported a respectable rank among the states oi It- aly, long maintained the lYiaritime ascendancy she had acquired, by means oi her numerous victories over the Venetians, Pisans, and Saracens. Her pow- er made her teared m the /Egean aca, in the Eux- ine, in Syria and Palestine. Siie seized on Catla, a. city of Little Fartary, situated on the coast of the Cim- merian Bosphorus,(96) and on the islands of Crete Tommasini, the commissary «f commercial relations, from Etriiria, at Marseilles, contained in his excellent work, priiiied al Venice, entitled, Rifiessioni sommarie sul modo di sottrarc, il cuiumevcio e la marina I'eneia da ulterior decadenza, i^c* (96) Many vestiges of Genoese magnificence are yet to be seen at Caffd, They had possession of it above 2U0 years. Bui tiiey were insolent enough to prohibit the Greeks and Vt^netians from entering any port beyond tiie mouths of the Danube. Tney form- ed a similar project of establishing ar-gtit ol entry into the Bospi:o- rus. Tiie commerce ot Culfa co:itinueu to Hourisli atier tlie Turks had expelled the Genoese from the Crimea, * We are ignorant of tlic nature of tlic plan of M. Tommasini, but tlie pauses wluch have so totally ani'.ilulatcd the maritime power of tlie Italian states, by tiiminj. die commerce of the east into otiicr ciianiiels, sliil ope- rate ill ;iU tlieir force ; so tliat it is not easy to conceive how the ancent splendour of Venice is to be restored. The events wliich subjectetl her to the rapacity of France, by whom she was tiansferrcd to AusU-ia, ai-e toQ recent not to he jcnfTy.lly known.....,T. 84 THE MARITIME LAW Parti. Commerce of Genoa with India. and Cyprus, in which she possessed, during a century, the city of Famagousta. Mytelene and Galata, op- posite Constantinople, also belonged to Genoa, with half the island of Sardinia, and the islands of Corsica, and Caprara. These establishments enabled the Ge- noese to carry on comnxerce with India, across the northern parts of Asia, and the deserts of Arabia, as well as by the Persian gulf, the Tigris and Euphra- tes, the Black Sea and Mediterranean, in the same manner as had been formerly done by the Greek em- pire. 2. Celebrated as navigators, the Genoese were so powerful that they assumed, and held, for a long time, the empire of the sea. They frequently clear- ed the Mediterranean of pirates, and of the Saracens, who infested its commerce. Their friendship was often solicited by the crusading powers, by the Greek emperors, and the kings of France. This republic was not ashamed to see its admirals and seamen en- ter into the service of foreign governments ; and the famous Doria, the Grimaldi, and Spinola, who main- tained the glory of their country, have been, at va- rious times, the terror of the Ottomans and of the English. 3. The maritime power of Genoa was annihilated by the same cause that destroyed that of Venice, The Medit-^;rran<::an, which had long been the thea- tre of war between the surrounding nations, failed to produce rivalship, when they ceased to feel any Chap. I. OF EUROPE. 85 Desti-uctlon of the maritime power of Genoa. — Pisa. \ interest in possessing its exclusive empire. The dis- covery of another hemisphere, distinguished the age of Christopher Columbus, an enterprising Genoese. AVhen America became known, all maritime enter- prises were directed to the Atlantic Ocean. Italy was no longer the centre of the commercial world. From this period, the industry of the Genoese has been inadequate to the maintenance of their marine, which they have, at length, entirely abandoned. Section III. PISA. § 1. ON the subversion of the Roman empire, Pisa, like many other cities of Italy, erected itself in- to a republic. ]^y means of the Arno, which served it for a port, and a shelter from storms and pirates, it soon became a formidable maritime power. 2. The riches of Pisa, increased by her immense commerce with the east, raised her to the rank of the most powerful cities in the Mediterranean, where she maintained such numerous fleets, that she was considered as the mistress of the sea. (97) Her name (97) Pisanorum praterea clarissimam Jamam Jacere bdla cum inaximispopulis, summisque principibus terra marique gesta, qucE tan- iis cos taudibus celebruvere, ut prhilegio quocta7n maiia doiinm roca- raitur. Jo. Florentinus, n\ vita Simon. Saltar. archicp. Pis. Jn Ita- lia tres fuerc prepotaites in muntimis rebus urbcs. Visa, Genua, Ve- nitia. £o inagnitudinis rem tisanurii hue in purtc erectam memo- 86 THE MARITIME LAW Part L Maritime power of Pisa. became celebrated throughout Europe and Asia, in which she possessed many islands and maritime •towns, in consequence of the naval wars she main- tained with so much glory, against the most power- ful nations. (98) 3. Before pope JohnXVIII. published the indul- gence, by which all the cathoJc states were invited to dehver Sardinia from the Saracens, and had prom- ised the sovereignty of the island to whoever would wrest it from their hands, the Pisans had, in 1003, under Victor Ricucchi, the commander of their fleet, already made those barbarians teel tlie torce of their naval power. (99) They were the first to ac- cept the invitation, and to make preparations. The new fleet, equipped against Sardinia, soon routed that of the Saracens, commanded by their king Mu- setto, settled in that island. The Pisans destroyed rantfUt centum eorurnfamilice toiidein roatratas naves privaio sianptu oedificasse et exornasse ad bellum ligusticum dicanttir. Klok, de itra- rio, lib. 2, cap. 25. Villani, istoriajiorent, lib. 7, cap. 82. (98) Et jure quidem merito Pisani et imperatorum privilegiis, et populorum acclaniationibus maris domini dicti sunt': turn quia ante sacrum illud maximi Pontifici Urbani II. ciassician (quo terra saiic- ta vestigiis domini nosti'i pressa nomini cliristiano J'uit restUuta.) Pisani Saracenos illas regiones occupantes iieraiis classibus, ac vuli- dissimis armis, soli jam exagiiaverant eoruniqne rires attriterant : tarn quia tarn in occidente, quam in oriente, qurnii plures et maritimas civitates et oppida, ac loca atque insulas possiderent. Muratori, rer. italix. sa'ipt. torn. 3, p. 402, col. 2, lit. C, (99) Roncioni, storia di Pisa, MS. lib. 2. Chap. I. OF EUROPE. Great reputation and power of Pisa. the ancient city of Torri, a Roman colony, seized on Sassari, Orosea, and Oristano, and, after several bat- tles, in which they annihilated the fleet of the enemy, remained masters of the kingdom. (100) 4. So great was the naval force of the Pisans, that, by their numerous squadrons, they were able to resist the most powerful and warlike princes. The Roman pontiff, in 1267, wrote to Henry, brother of the king of Castile, who w^as desirous of conquering Sardinia, to dissuade him from an enterprise attend- ed by too great difficulty and danger, since he would have to contend with the Pisans. (101) 5. The republic of Pisa, justly merited its high re- putation, as well on account of the number of its ships, and its naval victories, as for the considerable privileges granted to it by the emperor, who gloried in having Pisa for a friend, (102) and for the advan- (100) Seem)- history of Sardinia, vol. I, p. IDS, 109. {\0\) 'itunninm ad regnum Sardininm tuos acrdos direxisti , scire ie Tolumus, quod inultis sutnpiibvs indigercs, prccsertim quum Pisanos hnberes adversarios. Mallei. Sardinia sacra, cup. 2. (102) The emperors Frederick I. in 1 161, Otho IV. in 1209, and Frederick II. in 1220, in confirming (he ample privileges granted to (he republic of Pisa, express (hemselves in their diplo- mas in the following manner : " Pisanorinn nierila merith resfiexi- mus, presertim cum per eoruni industriam et virium pottntiam, hono- rem et gloriam imperii, atque reipjthlicce ipsi prce cceteris glnriose semper adauxerint, et semper adaugere proposuerint . 'sluania fideli' 88 THE MARITIME LAAV Part L Privileges granted to Pisa by various sovereigns. tageous treaties which it concluded with the most distinguished powers of that age. (103) She conquer- iate et prohitate Pisana civitas a prima sun fundaiione caput suiim in- ter alias cixitates extulerit, quanta etiam constaniia diris antecesso- ribiis nostris regihis Rojnanerum el imporatorihus fideliter sertien - do perseveranier adheseri. Nos per midta scripta et relationes scc- pius audivimiis, et in super ex ipsorum operum attesiatione et ipsum luce clarius constat," SfC. Arrigaes, king of Jerusalem and Cy- pru^, by a diploma, in 1291, granted the consulate and other pri- vileges to the Pisans, of which the following is the tenor : " In the name of the holy and undivided Trinity, Father, Son, and Holy Ghost, Amen. We, Arrigues, by the grace of God, 1 3th king of Jerusalem, and king oF Cypru?, make known to all, whom these presents do or mav concern, that, by our special grace and favour, we have granted, and do grant, for ourselves and our heirs, to fhe jieople of Pisa, and to every individual Pisan, of whatever condition, residing, going, or coming, or who shall enter or depart, from our kingdom of Cyprus, defence and protection in our said kingdom, and in all the ports thereof Furtlier, by our special grace, we have granted that the Pisans should have in our said kingdom of Cyprus, a Consulate, to bear the staff of office, and to take cognisance of all matters, except what belongs to our city magistracy and our own courts of justice ; and that all the inhabitants of our said kingdom, saving our seignioralty, who have any right of action against any Pisan, shall be bound to bring his action before the Consul of that nation ; and it is our will and pleasure, that as often as the said Con- sul shall think proper to send any Pisan to our prison, our officers shall give him all necessary aid and support for that purpose." (103) About the year 1 100, a treaty of peace was concluded be- tween the Pisans and the emperor Alexis, on the following terms : That the Pi>;an siiips should never be insulted in any part of the eastern empire, that all their mercliants at Constantinople should have an exchange, a quarter for their residence, a warehouse and church for their nation, and that they might appoint a Consul who should decide all the differences that might arise among them. See Codin Curopalata, de Me/isa imperatoris, cap. 7, § 9. Chap. I. OF EUROPE. 89 Pisa, torn by factions, is finally subjected to Florence. rr ■ ■ :;a ed Corsica, and the Balearean islands, the cities of Palermo and Carthage, gave considerable assistance to the crusaders, and delivered Alexandria, when be- sieged by its enemies. 6. Pisa having taken part in the disputes of the Guelphs and the Ghibbelines, whose factions deso- lated Italy, was alternately on the side of the pope and of the emperor. A disastrous war which it carried on against the Genoese, who took forty of its gallies, and twelve thousand men, inflicted a severe blow on the power of Pisa. It afterwards lost the commerce of the Levant, and their port was taken and destroyed by the Genoese. Tyrants, under the title of counts, arose in the bosom of the state, and hastened its ruin. Ugolino of Gherardcseca, one of the first citizens of Pisa, aided the Guelphs, and de- clared himself the head of the faction. He was ex- pelled, but was again restored by the Florentines. He was seized at last by the Pisans, and shut up in a tower, where he was left with his children to die by famine.* Other tyrants, who aftervv'ards seized on the government, were also overthrown ; but Pisa, though she regained her liberty, lost it for ever, by falling, in 1509, under the power of the Floren- tines.(104) * Dante, in tlie 33d canto of his Inferno, has described, in the most affecting manner, the dreadful sufferings and horrid death of count Ugohno and his four sons T. (lOV) Amm\Ta\.o htoria fiorentina, lib. 17. y\\\dn\. Ilislor.Jior. lib. 7, cap. 32. Roncioni, lor. cit. • Vol. I. M 90 THE MARITIME LAW Part L Maritime enterprises of the Saracens and Normans. Section IV. THE GOTHS, VANDALS, SARACENS, AND NORMANS. § 1 , THE Goths and Vandals were the first among the barbarians who spread themselves over the finest parr ot" Europe. It does not appear that they ever undertook any remarkable naval enterprise. Their longest voyages were in the Mediterranean, between Italy and Africa, Spain, and the adjacent islands. The Saracens soon followed the Vandals, and far ex- ceeded them in maritime forces. Navigation, how- ever, is not indebted to their exertions. Their mari- time empire was momentary, and extended no fur- ther than the coasts of Africa, Spain and Sardinia, which they invaded. After the Saracens, the Nor- n^ans infested the coasts of Britain and France. They sent, at various times, from Norway, considerable fleets, and numerous bodies of emigrants. They fi- nally established themselves in Normandy, from whence they cruised along the coasts of Spain, enter- ed the Mediterranean, through the straits of Gibral- tar, and conquered the kingdom of Naples and Si- cily. Though the Normans made longer voyages than the other barbarians, their navigation was very limited, as they seldom extended their excursions be- yond the coast. Their empire on the sea was exercised in occasional combats, and in pillaging the neigh- bouring countries. Chap. I. OF EUROPE. 91 Naval armsiinents of the crusaders. Section V. THE CRUSADES. § 1. A SUDDEN inspiration, the enthusiasm of • christian piety, in 1096, prompted the kings, princes, ecclesiastics, and people of Europe, to make voyages to the Holy Land. The crusaders, destitute of a ma- rine, were obliged to borrow ships, at a great expense, from the Venetians, the Genoese, and the Pisans ; and, in the expedition of Charles VI. from the Hol- landers and Zealanders, who were enriched by the freight, which they very prudently obliged the cru- saders to pay in advance. These enterprises did not correspond w^ith the motives which gave them birth. A noble ambition, and a religious zeal for the deliver- ance of the Holy Land from the tyranny of infidels, ac- tuated the first crusaders : but this zeal soon deirene- rated into the most extravagant, cruel, and disgraceful fanaticism. The sanctity of the object in view, was constantly belied by their conduct ; they spoke of nothing but virtue, while they dishonoured its name by their numerous vices. The kings of France, lead- ers of these expeditions, hastily built some ships at Marseilles, and took others by force, along the coast of Languedoc and Provence. Armaments thus made, without choice or preparation, could hardly insure success. Accident, alone, decided on the number of vessels, the manner of equipping them, and on the y route they were to take. All these equipments were forced exertions, that disappeared with the extraor- ^2 THE MARITIME TAW Part I ■ I , , ■ ... ,,.; Failures of the crusaders. — Their effects. dinary enterprise for which they were destined. Useless delays, abortive projects, and shipwrecks, followed in succession. These attempts, nine times repeated, with the same disasters, gave, however, to the fleets of the crusaders, a maritime preponderance in the Mediterranean and Archipelago ; but it van- ished as soon as the jealousy of the English, and the bad faith of the Greek emperors, had rendered inef- fectual those establishments which France, exhausted by so many losses, was unable to protect. (105) (105) " As to the effects of the crusades," says M. Chapus, " admitting that they have cost Europe many men, and a great " deal ot money, and have communicated to us diseases, with " which we are still afflicted ; yet, it is certain, that thecrusades di- *' minished the evils of the feudal system, by augmenting the power ** of the kings, and the influence of the common people, and that ** they have imparted an incredible increase and spring to com- " merce in every part of the world.'' Page 180. Chap. I. OF EUROPE. 93 Invention of the mariner's compass. — Discovery of America. ARTICLE IV. Of the States who have claimed the empire of the Sea, since the discovery of America. § 1. THEsinguIarpropcrty of the magnet, oi'' point- ing towards the poles, was unknown to the ancients. Numerous experiments with the magnetic needle, suggested the idea of the mariner's compass. (106) As soon as the pilot found, in this instrument, a faith- ful guide in his course, he became more bold and ad- venturous. This boldness gradually Jed to the open- ing of a new passage to India, by the Atlantic ocean, and to the discovery ot America, From that period, the western nations of Europe, in search of gold and silver, at the price of a thousand dangers, and of every crime, burst the barriers which seemed to have been placed between the two hemispheres. (106) The discovery of the mariner's compass belongs to France: She was the first, among the nations ol Europe, after tlie 12th cen- tury, to make use of it, under the name of marinette or mariincre. See the proofs m support of this opinion in my Dissertation on the Mariner'' s Compass, '2d edition, Venice, 1797.* * Dr. Robertson, in his History of America, vol. 1, book 1, gives the Tncrit of this iliscovcry to Fiavio Gioia, a Neapolitan, and native of Amalfi, about the year 1302. It is said by some, to have been used at Venice, in 1262, and by oJicrs, to have been known to Qie Chinese, above 1100 years teforc tJie christian sera T. 94 THE MARITIME LAW Part I. Discoveries in Amex-ica and India, by the nations of Europe. — Portugal. 2. Portugal, Spain, Holland, England, and France, each in their turn, made discoveries in the new world.* A jealous and restless ambition impelled ' these nations, with the exception of France, to em- ploy every means of tyranny to keep the exclusive possession of their respective discoveries. Hence that despotism which they have severally exercised in or- der to obtain the exclusive empire of the seas, to the prejudice of each other. We shall briefly examine their conduct, to show how each nation abused its / power, when the superiority of naval force gave it a maritime preponderance over its rivals. Section I. PORTUGAL. § 1. THE Portuguese firstmade the ocean an ave- nue to conquest. Prince Henry, son of John I. king of Portugal, conceived the plan of carrying on a com- merce with the coasts of Africa. The study of as- tronomy, and the Observatory erected at Sagres, a city of Algarva, led to the invention of the Astrolabe. He was the first to perceive the advantages to be de- rived from the compass, already known in Europe, but which no one had yet ventured to use in navi- gating the ocean. The pilots formed under the direc- tion of this prince, discovered, in 1419, the island of * Dr. Robertson, in his History of America, vol 1, book 1, lias given a learned and instructive view of the progress of commerce and navigation T. Chap. I. OF EUROPE. 95 The Portuguese discover the Caix; of Good Hope. Madeira. John II. tlie son of Henry, following the steps of his father, made a further application of the compass to navigation, and, by its help, the Portu- guese arrived at the Cape, situated at the extremity of Africa, called at first the Cape of Storms, after- wards the Cape of Good Hope, because it opened to them a passage to the East-Indies. (107) King (107) It is pretended, that Hanno, to whom tlie Carthaginian senate, had given the command ot 50 vessels and 30,000 men, for the purpose ofestablishing colonies, passed the straits of Gibraltar, sailed along the western coast of Africa, and arrived at the borders of Arabia, where he stopped for want of provisions. A relation of this vo) age, known by the name of the Periplus, was made in the Punic language. (See the learned researches on the state and pro- gress of navigation among the ancients, by M. Peuchet, inserted in his Biblioiheque Commerciule, p. 101, 1803.) Able philologists assert, and Mr. Dodwell seems to have proved it beyond all con- troversy, that Ihe Periplus is not the work composed by Hanno. It is certain, however, that the Carthaginian navigator did make a relation of his voyage. It is mentioned by Aristotle, Pliny, and Pom- ponius Mela. This is sufficient to show that the ancients believed it practicable to sail round Africa. Cornelius Nepossays, iJiat in his time, Eudoxus, wishing to escape the anger of king Laihyrus, em- barked in the gulf of Arabia, and continued his voyage, till he ar- rived at Gades. M, Huet pretends, that from the time of Solomon, the Cape of Good Hope was known and frequented. If all these re- lations are true, the Portuguese merely found out a route, the know- ledge of which had been lost. The second discovery, however, is not less glorious than the first. " If the Europeans could, one day, efface the remembrance of " the crimes with which they have been stained since thediscove- " ry of the two Indies ; if the sweets of fraternal intercourse, " founded on reciprocal wants, should ever become the only ties to " unite the inhabitants of the old and new world; then might fii- " turc generations, struck with astonibhment at tlie bold conccotions 96 THE TvIARITIME LAW Part L Emanuel. — Vasco de Gama discovers Indostan. Emanuel prosecuted the schemes of his predecessor; he dispatched, on the 10th July, 1497, a squadron of four vessels, under the command of Vasco de Gama, who, after running along the eastern coast of Africa, discovered Indostan. (108) 2. King Emanuel, profiting by the discoveries made by several Portuguese in different parts of In- dia, resolved to make a permanent establishment there, the better to secure his dominion over the va- rious settlements. In 1505, he sent Francis Almey- da to India, in character of viceroy, with a fleet of twenty-two ships. During his route, this navigator built several forts to protect the navigation of the In- dies, and arrived on the 6th April at the Cape de Verd Islands, The king of Calicut, leagued with the Egyptians and Arabs, and, jealous of the successes of the Portuguese, attacked their squadron with a fleet consisting of near two huadred vessels. Against these numerous enemies, Almeyda opposed his cou- rage and intrepidity, and gained over them a signal victory. At the same time, the son of Almeyda, di- " of their ancestors, raise a monument to the genius of navigation. " This genius would appear wilh her attributes, a globe and a com- " pass, before prince Henry of Portugal ; while the Indian, the " founder of nations, the African freed from his fetters, the Peru- " vian escaped from death, would bow before the European, whose •" power would at length unite, in mutual embrace, the remotest ** regions of the globe." Arnould, System, marit. et polit. ch. 2. (108) See my dissertation on the mariner's compass, ch. 3, 2d edi- tion, Venice, 1797. Chap. I. OF EUROPE. 97 Successes of the Poi-tiiguese in India. rected to cruise with nine vessels towards the Mal- dives, in order to intercept the Arabian ships rrom the Moluccas, accidentally fell in with the coast of the island of Ceylon, before unknown to the Portu- guese, took possession of it in the name of his king, and caused a marble column to be there erected, bcarino; the arms of Portugal. 3. Tristan d'Acnna, accompanied by Alphonso Albuquerque, set sail from Portugal, in 1508, with a squadron of eighteen ships, and made a descent on the island of Madagascar, to discover the character of the inhabitants and the resources of the country. The arrtval of Tristan in India, gave new vigour to the Portuguese, who, during four months had been contending with the king of Calicut. He dis- tinguished himself by many striking actions of cou- rage and moderation, and returned to his country with fnc ships. Albuquerque, who remained in In- dia, took every care to render the flag of his king respected. He cruised with several vessels, in order to keep in awe the countries surrounding the gulfs of Arabia and Persia. Almeyda, on his part, had for- midable enemies to combat. The king of Calicut, supported by all the maritime forces of Malabar, and a multitude of Arabian vessels, engaged him in nu- merous conflicts, and with various success. Lauren- tius Almeyda, son of the viceroy, perished in one of these engagements, after exhibiting strong proofs of valour. To avenge the death of his son, the viceroy Vol.. f. N I 98 THE MARITIME LAW Part L Victories and conquests of the Portuguese. collected a squadron of ninety sail, attacked the fleet of the enemy, consisting of more than one hundred ships, and entirely routed it. This victory secured to the Portug jese, the empire of the Indian sea. 4. Albuquerque, having become viceroy, after the deatli of Aliiieyda, supported the dignity of his sta- tion with new splendour, gave reputation to the Por- tuguese maritime power in India, and filled their enemies with terror. After the capture of Goa, this warrior did not remain inactive, but attempted to extend his conquests. He equipped twenty-three vessels, sailed towards Sumatra, subjected Malac- ca to his arms, and took vengeance for tWe inju- ries his nation had suffered. These successes were followed by many others. He humbled the pride of the kings of Calicut, and of the Moluccas, and of other sovereigns in India, by obliging them to pay tribute to the king of Portugal, In all his expe- ditions he gave the most striking proofs of prudence and valour. (109) (109) We may here recollect the jealousies, which the intrigues of the Venetians with the sultans of Egypt, excited against the Por- tuguese. The Venetians, who, before the discovery of the Cape of Good Hope, carried on by Egypt and the Red Sea, a great part of the commerce of the world, lost it by that event. Tl;e Portu- guese, under tlie celebrated Albuquerque, encouraged by the Arab^, who wished to monopolize all the commerce with India, acquired a powerful empire on the Indian Ocean, and the Red Sea. The Venetians receivuig little or no aid, from the natives of the country, and obliged to struggle against the difhculties of Chap. I, OF EUROPE. 99 The great services of AUbuquerque are ill requitcd.i — His death. 5. Albuquerque, who laid the foundation of the Portuguese empire in India, carried the glory of its name to the extremities of the earth, subjected to the dominion of his king, the whole coast from the river Indus to Cape Comorin, discovered several islands, subdued Malacca, conquered the kingdom of Or- mus, and vanquished numerous and powerful foes, saw envy and malice at last rise against him, to black- en his character in the eyes of his sovereign. The too credulous monarch recalled him, and sent another governor in his place. This great man was so af- flicted at receiving such an ill requital, for all the ser- vices he had rendered his king and country, that he fell sick soon after his return from Ormus, and died on board his ship in the port of Goa. transporting from Alexandria to Suez, the frames of vessels sufficient to contend with the Portuguese on the Red Sea, were forced to abandon their project. The nations of the West were then plun- ged in the darkest ignorance, and did not suspect (hat any great advantages were to be derived from commerce. The Portuguese, by encouraging voyages and discovesies, became more enlightened than the otlier European nations, and the vast genius of Albuquerque knew how lo appreciate the importance of a commercial inter- course with India. He proposed, in case of any great obstacles to his schemes, to cut through the banks of the Nile, in Upper Egypt, and, by turning tlie course of tliat river towards (iie RliI Sea, not only to draw off, by that means, a great part of the commerce of Afri- ca, but toconvcrt Lower Egypt into a desert, so as (o prevent any colonization of the country, and thus erect a strong barrier between the Mediterranean and ihe Red Sea. The inhumanity of this scheme disappeared with the political necessity which dictated it. 100 THE MARITIME LAW Pari 1. Contests betweai the Portuguese and Spaniards. 6. After the death of Albuquerque, the Portuguese continued to send viceroys, ships and troops to the Indies, to extend their commerce, and preserve the conquests they had made. In these opulent re- gions, the Portuguese have experienced an alterna- tion of good and ill fortune. They have been often victorious, and often vanquished. But the empire of the sea, which they preserved, gave them, in that quarter, a preponderance over other nations. 7. The Portuguese and Spanish were too near neighbours to remain friends long. The discoveries made by each, produced new and frequent dis- sensions between them. Don Alphonso, king of Portugal, entered into a violent dispute with Ferdi- nand and Isabella, on the subject of the Canary isl- ands, claimed by both. This difference, however, was not attended with serious consequences. Both monarchs preferring negotiation to war, entered into a convention, by which it was definitively settled that the Azores, Guinea, and western Ethiopia, should belong to the Portuguese. Pope Sextus IV. by his letters, dated at Rome, the 11th of the calends of July, confirmed this treaty as well as the bulls of Martin V. Eugene IV. and Nicholas V. 8. The disputes which had divided these two neighbouring nations, were renewed with more vio- lence, under the emperor Charles V. Sebastian Ca- no, having reached the Moluccas, by the strait which he and Magellan discovered, persuaded the emperor Chap. I. OF EUROPE. lOl The Portuguese gain possession of Uxe Moluccas. — Conduct of Spain. that these islands ouq^ht to belong to him, as the Portuguese had not penetrated to them, and they were, besides, situated within the part which fell to him, on the division made by pope Alexander VI. These reasons, whicli appeared very forcible to the emperor, since they accorded with his wishes, seem- ed higiily unjust to John III. king of Portugal, whose interest was in direct opposition to that of the Span- ish king. These princes, though they did not possess / very implicit faith in the power of the pope to bestow ^ and take away kingdoms, yet made use of his bull to support their respective claims. Unable to termi- nate their differences by force of argument, they at length had recourse to arms. They made war on the Moluccas, and by turns expelled each other from those islands ; but the Portuguese at length gained possession, and an end was put to the contest. 9. The Portuguese having, in 1581, submitted to the Spanish yoke, Philip II. king of Spain, attempt- ed to degrade their character, at the same time, con- cealing under honourable pretexts, the destructive means he employed to succeed in his design. His successor, Philip III. scrupulously adhered to the po- licy of his father ; he suffered the Portuguese to be deprived of their numerous conquests, which had cost them rivers of blood, and procured them so much power and glory. Philip IV. weak as his lather, at- tacked, and treated with contempt, their administra- tion, their privileges, their manners, and every thing they held most dear. A conspiracy, which had been 102 THE MARITIME LAW Part T. Revoliition of Portug~al, its wars, and the decline of its marine. preparing, with unexampled prudence, for three years, burst out on the 3d of December, 1640. The go- vernment of the king of Spain was ignominiously proscribed, and the duke of Braganza, under the name of John IV. was placed on the throne of his ancestors. Portugal became again master of Brazil j but lost the island of Ceylon, and never recovered any of its possessions in India. In 1688, a treaty of peace was concluded with Spain, in which the latter acknowledged the independence of Portugal, restor- ed its ancient possessions in Europe, and on the coasts, excepting the town of Ceuta in Africa, which remained to the Spaniards. Notwitlistanding this fortunate event, Portugal has not recovered from the state of weakness to which it was reduced by the Spanish government, by continual wars, and still more by its commercial connexions with England. It has not, at present, a twentieth part of its ships of war re- maining for the protection of its colonial commerce. Its political existence is precarious, and upheld only in consequence of the interest which the great powers of Europe have in preventing it from becoming a province of Spain. Chap. I. OF EUROPE. 103 Spain, its first maritime expeditions, in the rcig^i of Ferdinand. Section II. SPAIN. § 1 . ANTECEDENT to the reign of Ferdinand V. the history of Spain offers nothing remarkable, con- cerning its marine. This prince, born with an im- measurable love of glory, was often led, by his ruling passion, beyond the bounds of moderation and jus- tice. His marriage with Queen Isabella, a princess of rare merit, united the crowns of Castile, Leon, Arragon, Navarre, and Granada. All these king- doms, governed with great political ability, and which gave him a preponderance over the other powers of Europe, were not sufficient to satisfy his ambitious mind. His views were more extensive : he caused ships to be built, by which he might ac- quire new kingdoms, and the empire of the sea, to which he aspired. 2. The first maritime expedition of Ferdinand, was directed, in 1446, against the Canary islands, to reduce them under his power. He, at the same time, dispatched twenty-five ships to Guinea, where he established a very advantageous trade, giving, in ex- change for valuable commodities, shells, esteemed by the inhabitants of that country, more precious than gold or silver, as they imputed to these marine productions, the power of preserving them against thunder. These ships returned richly laden, but Fer- dinand derived no advantage from the voyage, as they all fell into the hands of the Portuguese, who J 04 THE MARITIME LAW Part L America disco\'ered by Columbus, and so named by Vespucius. ■ ^ ■< — ■■?■——■ ■■—---■-- ' — - • - ^ ■■ — — ■»-- were then at war with Spain. About the year 1484, he sent a considerable iieet, consisting of seventy- sail, under the command of Gonsalvo Hernandez de Cordova, called the great captain, to the aid of the king of Naples. This general recovered Calabria, and wrested the city of Naples from the hands of the French. 3. These first essays of the marine of Ferdinand^ prepared the way for the great discoveries made dur- ing his reign. While the Portuguese were advancing along the coasts of Africa and Asia, the Spaniards discovered and conquered the West-Indies, or Ame- rica. Christopher Columbus, a Genoese, set sail, on the 3d of August, 1492, from the port of Palos, in Spain, with one ship and two brigantines, which Ferdinand and Isabella had entrusted to his com- mand. This armament cost only ten thousand du- cats. The first land which he discovered, on the 1 1th of October, in the same year, was Gudnaham\ one of the Lucayos, or Bahama islands, to which he gave the name of Saint Salvador. He afterwards discovered the islands of Cuba and Hispaniola. A- mericus Vespucius, a Florentine, made a voyage to America in 1497, and claiming to be the first who dis- covered Terra-Firma, he gave his name to the coun- try, since called America.(llO)* Ferdinando Cor- (110) See Ricerche istoriche critiche circa Ic scoperse (V America Vespucci delSig. Bartolozzi. Elogio d'Americo Vespucci del Canova. Vita del Vespucci del Bandini, * Alonso de OJeda, who had accompanied Columbus inlils second voyage, was the commander of the squadron^ on board oi" which Chap. I. OF EUROPE . 105 Discoveries of Ferdinand confirmed by the Pope. tez, in 1518, and Francis Pizarro, in 1525, greatly extended the conquests of Spain in the new world. Long voyages, undertaken with success, the disco- very of immense countries, separated from our con- tinent by a vast ocean, tl^.e conquest of several king- doms, advantageous establishments on the coasts of Africa, in the Canaries and the Indies, the subjection of barbarous and unknown nations, and the inex- haustible treasures acquired by the crown, immorta- lized the reign of Ferdinand, and transferred the em- pire of the Indian seas to Spain. 4. Ferdinand, after the example of the Portuguese, solicited from the court of Rome, a bull, granting him a full title to all the conquests made, or to be made, in the new world, on condition of his convert- ing to the Catholic faith, the inhabitants of those bar- barous countries. Alexander VI.* by a bull, dated at Rome, the second day of May, 1493, gave to i / Ferdinand and Isabella, sovereigns of Castile and Arragon, the new world which had just been dis- covered. It was under his pontificate that the limits were fixed between the Portuguese and Spanish, by dividing the Indian islands, then discovered, by Vespucci served in a subordinate capacity. See Robertson's Ame- rica, Book II T. * This pontiff, w hose ridiculous pretensions to power are set forth iii this curious instrument, was tlie most infamons wretch tJiat ever disgraced humanity T. Vox. I. O 106 THE MARITIME LAW Part L Ferdinand attacks the Barbarj' pirates. means of lines corresponding to the degrees in the heavens ; assigning, as a boundary to Spain, a meri- dional line, drawn from pole to pole, a hundred leagues west of the Azores. (1 11) 5. The legal property in the seas and kingdoms of the two Indies, thus granted to Ferdinand by the pa- pal bull, confirmed his acquisitions ; and he now turn- ed his attention to the shores of Africa. The Barbary pirates, who ravaged the coasts of Spain, took refuge in the harbour of Oran, which served for a place of (111) The fourth article of this bull, is In the following words ; " Et ut tanii negotii provinciam apostoUca gratia largitate donati, " liherius tt audaciuis, assumatis molu propria, non ad vestram, vel " alterius pro vobis super hoc nobis oblatce petitionis instantia??}, std " de nostra viera liheralitate, et ex certa scientia, ac de apostolica " potestatis p/enitudi'ie, omnes insulas et terras fir mas, imentas etin- "■ veniendos, detectas et detegendas versus occideniem et meridiem, " fabricando et construendo unam lineam a polo arctico scilicet sep- " tentrione, ad polum antarticum, scilicet meridiem, (sive terrce fir- " met et insulcE invented, et inveniendx sint versus Jndia?n, aut versus " aliam cpiamcuinque partem,) quae Vniea distet a cpialibet insularum " quce vuigariter nuncupantur, de losAzores,y Cabo Verde centum leu- " cis versus occidentem et meridiem, per alium regem aut principem " christianum nonjuerintactualiterpossesscr, usque ad diem nativita' " tis doiflini noslri Jesu Christi proxime prceteritum a quo incipit an- " nuspraesens 14-93, quundo juerint per nuncios et capitaneos ves- " tros mventce aliquce predictarum insularum ; auctoritate omnipoten- " tis Dei nobis in Btiito Fetro concessa, ac vicariatus Jesu Christi " qua fun'^imur in terris, cum omnibus illarum dominiis, civitatibus, " casiris, locis etvillis, juribusque, €tjurisdictionibus,acpertinen~ " tils universis nobis, hccredisbu^que,'" i^-c, 6'ec Leibnitz codex jur- gent.diplom. p. 165, et 203. Hieron a Monte, trad, de fin. regim- dor. cap. 7. § 8. Chap. I. OF EUROPE. 107 Conqiiest of Oraii. — Charles V. takes Tunis. deposit, and an asylum. Cardinal Ximenes, arch- bishop of Toledo, undertook to exterminate them. He equipped lor that purpose^ an armament ot eighty ships, three gallies, and a large number of transports, with ten thousand infantry, and four thousand cavalry. He landed in Africa without opposition ; and the city of Oran was taken. Tiie capture of the place was effected with so much expeditioii, that the Span- iards considered it as miraculous. Another naval ar- mament was dispatched, at the same time, and the Venetians were compelled to restore the places ta- ken by them, which were dependencies of the king- dom of Naples. Tiiese two expeditions, attended with such rapid and happy success, gave the Span- iards a great preponderance in the Mediterranean, 6. The formidable Barbarossa having succeeded, in 1535, to the authority of his brother Horuc, in the government of Algiers, seized on the kingdom of Tunis. This conquest so alarmed the christian prin- ces, that they formed a league against the power of an enemy so much to be dreaded, and a cruel foe to their religion and dominions. Charles V. of Austria, who had succeeded Ferdinand, and who united the crown of Spain to that of the chief of the Germanic empire, put himself at the head of this famous coali- tion. The fleet of the confederates, consisting of three hundred ships, set sail from Cagliari, in Sar- dinia, the place of rendezvous, touched on the 25th of June, at Porto Farina, six leagues from Tunis, at- tacked and took Fort Goletta, and, soon afterwards 108 THE MARITIME LAW Part /. Failui'e of the expedition against Algiers. gained possession of Tunis. Charles V. after replacing the lawful king on the throne, and compelling Barba- rossa to seek his safety in flight, prepared to return to Europe. He touched at Trepano, Palermo, and Messina, and entered Naples in triumph. Anima- ted by such glorious success, the emperor was desir- ous, in 1540, to conduct a similar enterprise against Algiers j but his measures, not being so well con- certed as in the former expedition against Tunis, it was not attended with equal success. Having, incon- siderately, put to sea with a numerous fleet, at an un- favourable time, he had to contend with winds and tempests. The ships, buffetted by a furious storm, were dashed against each other, or broken to pieces on the rocks ; others, with their crews, were swal- lowed up in the waves. One hundred and fifty large ships, and fifteen gailies, perished by this disastrous incident, and Charles, with the utmost difficulty, reached Carthagena in safety, with the wreck of his fleet. His great exertions, and lofty pride, pro- cured him only empty renown, the exhaustion of his dominions, and weariness of life. 7. Philip II. son of Charles, who succeeded his fa- ther as king of Spain, had little success in his expe- ditions against the Barbary powers. His marine had not yet recovered from the losses it had sustained un- der his predecessor. Furious with indignation against Queen Elizabeth, and eager to take vengeance on that princess, for uniting with the Dutch, who had shaken off the Spanish yoke, Philip undertook the vBr Chap. I. OF EUROPE. 109 Pliilip II- attempts to invade England. — Destruction of tlie Arniada. conquest of England. During three years, he em- ployed all the ship carpenters ol Spain, Portugal, and of Naples and Sicily, which then belonged to Spain, in building ships of extraordinary size and force. This fleet, which, before it left the port, had re- ceived tlie title of invindhlc armada^ put to sea in 1588. It consisted of one hundred and thirty ships, nearly onehundred of which were the largest that had yet appeared on the ocean. Twenty caravels, or light ships, followed the fleet, manoeuvred and fought under its wings; but the ships were so heavily armed, and so badly managed, that they would scarcely move, take the wind, go about, or obey the helm in a storm. The sailors were as dull as the ships were heavy, the pilots almost as ignorant as the sailors, and the admi- ral, the duke de Medina-Sidonia, who possessed no- tliing but birth and fortune, was destitute of energy and experience. 8. Elizabeth, believing in the weakness of her enemies, and their want of nautical skill, rested her hopes of victory on their inexperience. The Eng- lish avoided being boarded by their heavy machines, used their artillery with effect, burned several of the ships, took the galleons, and disabled the rest. A fu- rious storm arose during the fight, drove a number of the Spanish ships on the western coast of Scot- Jand, and others on the Irish coast, vv'hcre they were taken or sunk. Of this invincible Armada, scarcely twenty ships returned to Spain, where this disaster spread a consternation and despondence, from which no THE MARITIME LAW Parti. The Spanish marine neglected. — Philip V. attends to its revival. the nation never recovered. By the loss of an ar- mament which had cost so much preparation and expense, and which exhausted its revenues and tor- ces, Spain became completely cast down and dis- heartened. (112) 9. The Spanish marine continued to be wholly neglected until the reign of Philip V. This prince had no sooner dispersed the enemies that opposed his advancement to the throne, than he meditated the restoration of the marine, which at that period was so weak, that the Barbary corsairs carried off with impunity, merchant-ships, captured at the mouths of the Spanish harbours. He built some ships, purchas- ed others of foreigners, and formed establishments favourable to navigation. Philip V. was soon able to send out two cruising squadrons, one to the Me- diterranean against vessels sailing under the imperial flag ; the other, against the corsairs and smugglers. (112) From a hatred of Philip II. who was regarded as a common enemy, all Europe applauded the glorious success of Elizabeth. The Venetians, on receiving the news of the defeat of this famous and unfortunate armada, exclaimed. Oh the Donna, se fosse Christuna. Oh what a woman, if she were but a christian ! All had in their mouths, these words : Omne malum ab Hispania, omne honum ab Aquilone. (Me?«o?Vs of Birch.) A medal was struck on this occasion, in England, on which the Spanish fleet was seen ^y'mg, under full sail, and these words, venit, vidit, vicit. Another medal, representr ed the Spanish fleet in disorder, and their vessels burnt, with the following legend. Dux femina facti. The most remarkable one was that in which the ships are seen beaten by the storm, and run- ning against each other, with this noble and pious inscription : Affia- vit Deus, et dissipaniur. Chap. I. OF EUROPE. in The Spanish navy auijmented l)jf Philip V. He armed, at the same time, a large fleet of ships, built in the ports of Cadiz, Malaga, Carthagena, and Alicant. In 1718, his marine consisted of fifty ships of the line, dispersed over the seas of Sicily and Sar- dinia, of bomb-ketches, fire-ships, and batteaux, for the purpose of landing troops to take possession of the island of Sardinia.(i 13) He had besides a pow- erful squadron in the Indian seas, to check pirates, and five ships of war to convoy merchant vessels from New Spain. 10. In 1733, the Spanish marine being employ- ed in Africa, in the recapture of O ran, and in Italy, the Catholic king was obliged to form new arma- ments ; but during this war his ships were employed in transporting troops into Italy, and in voyages to the Indies. After peace was concluded with the em- peror, another war arose with England, that gave the utmost activity to the fleets of Spain. New Georgia, Porto-Bcllo, St. Augustin, and Carthagena, in America, became the scenes of action. The defence of the latter place, will ever be considered in his- tory as one of the most illustrious monuments of Span- ish valour. In the Mediterranean there occurred on- ly the engagement off Toulon, in 171-4, which gain- ed the Spanish Admiral, Don Pedro Navarro, the pompous title of Marquis de Victoria. 1 1 . The Spanish marine, having no further occa- sion to signalize itself, remained inactive fi^r a lon^ a (113) Sqq my geotrraphival, polUical, and natural histort/ of Sf::- dinia, vol. 1, page 161, &c. 112 THE MARITIME L AAV Part L Decay of the Spaiiish mai-ine — its rmval under Fei'dinand VI. period, and gradually fell to decay. The Marquis d'Ensenada, being made minister under Ferdinand VI. exerted himself to raise it from a state of ruin. He procured English shipwrights, French architects and geometricians, formed schools, fortified the har- bours, filled the dock-yards and arsenals, and made, or improved, other establishments, connected with this great object. The disgrace of this minister was not felt in the department which he quitted. They continued to work and build ships, and when Charles III. ascended the throne of Spain, the marine was in a prosperous state. 12. According to the representation given by the learned M. Bourgoing,(ll4) it appears, that after the peace which terminated the disastrous war of 1761, Spain had only thirty-seven ships of the line, and thirty frigates. In 1770, she possessed forty-one ships, from 58 to 112 guns, twenty-two frigates, eight laro-e hoys, nine xebecks, and twelve smaller vessels of war, amounting, in the whole, to one hundred and two vessels of all sizes. In 1774, she had sixty- four ships of the line, eight of them three-deck- ers, twenty-six frigates, nine xebecks, and tvventy- Qio-ht smaller vessels of war; in all, one hundred and forty-two. In 1778, Spain reckoned sixty-seven ships of the line, thirty-two frigates, besides other vessels, making in the whole one hundred and sixty-three ; and at the end of the war, notvv^ithstanding all the (114) Tahkan de V Europe Moderne,par M. Burgolng, torn. 2, p. 128. Chap. I. OF EUROPE. 113 Stute of the Spanish marine. — HoUiiiiA losses slie sulfered, she retained nearly the same num- ber. At the close of the year 1792, when war was declared against France, she possessed eighty ships ot the line, six of which were wholly inca- pable of service, and fourteen hardly fit for sea. The war against the French republic has not been injurious to her marine. Tne present contest with England, which remains to be terminated, will leave her many losses to repair ; and the Spanish government is now engaged, with activity, in rendering its marine capable of seconding the efforts of France against the usurpations of their common enemy. Section III. HOLLAND. § 1 . HOLLAND is nothing more than a bank of band and mud, raised by accident, and which ac- cident mav, at any time, destroy. The situation of its sunken land, below the level of the sea, has oblig- ed the inhabitants to oppose the violence ot the waves, by dikes, to dig canals in every direction, lanje enoufjh to faciHtate internal communication, and draw off the stajrnant waters which covered its surface. Familiar with water, the Hollanders have been compelled to seek their chief subsistence from the sea. Necessity, which first made them fishermen, soon taught them how to cure and preserve their fish, to make them an object of commerce, procure in exchange from neighbouring countries, what they Vol. I. P 114 THE MARITIME LAW Part I. Industry of the Dutch ; progress of their commerce. wanted in their own, and thus augment the pleasures of life. The riches which this industry brought in- to the state, enabled them to pursue other branches of trade that opened new sources of wealth. The strength of Holland increased with her opulence , she dared to take arms to obtain her freedom, and she suc- ceeded in the attempt. Commercial and industrious, she knew how to create, at the same time, territory and liberty, commerce and colonies, a useful navi- gation and a formidable marine. Emerging by the force of genius from the bosom of the ocean, she seem- ed to have more right than any other power to rule over its waves. 2. The decay of the Spanish marine, occasioned by the many losses which it sustained under Philip II. and by multiplied and ill concerted expeditions, transferred the sceptre of the sea to the hands of the Dutch. The pride of Spain could not have been bet- ter humbled than by the prosperity of a people whom its oppressions had compelled to throw off the yoke it had imposed. Having formed their country into a federal republic, the Dutch, stimulated by revenge and by their wants, commenced privateering, and formed a marine at the expense of the Spanish, Whom they every where beat, and of the Portuguese, whom they detested. France and England, who saw nothing in the progress of this rising republic, but the humiliation of the Spanish monarch, assisted the Dutch to preserve their conquests and spoils, the whole value of which was not then known. Thus Chap. I. OF EUROPE. i ] 5 Greatness and superiority of tlic maritime power of Holland. the Dutch gradually secured their establishments wherever they wished to carry tlieir arms, and strengthened themselves in their new acquisitions, before other nations became jealous of their power. By their industry, they gradually gained possession of all the commerce of that age ; and, by means of their squadrons, became masters of every sea. Z . The power of Holland soon essayed its strength, and made itself known in the political world, by its energy, its economical resources, and its good for- tune. The glory of Spain and Portugal, eclipsed on the ocean, disappeared before her fleets. From the suppliant she became the ally of France. The for- ces which she displayed abroad were the fruits of her maritime exploits. The riclies acquired fro'm the Spanish and Portuguese in Asia, contributed to sup- port her mighty armaments. Her seamen appeared like conquerors on those distant coasts, and took pos- session of the most- advantageous positions. If Hol- land did not, at once, snatch from her enemies all the commerce of those opulent regions, she strengthen- ed herself there m such a manner, as to indicate that preponderance which she eventually obtained. She has abused this ascendancy by rendering the com- merce exclusive, by seizing on the Spice-Islands, and monopolizing the spice-trade. 4. By its maritime prosperity, this republic was in a situation to enter into close connections with the north- ern powers, and to exercise great influence in that 116 THE MARITIME LAW Part J . Influence of Holland among the nortliem powers of Europe. quarter of Europe. In consequence of these rela- tions and this intluence, it lias, morf than once, be- come the guarantee, or armed mediator, in the wars of tne north ; and it has always retired with the ho- nour and the advantage of having preserved an equi- librium, and a mutual independence between these nortiicrn powers. This wise and generous policy enabled Holland to save Denmark, at the brink of ruin, under Frederick HI. to repress the turbulent ambition of Charles Gustavus, by a maritime diver- sion, that raised Poland, just ready to sink under his power; to secure to Dantzick the condition it enjoys to the present day, and to produce those circumstan- ces which led to the peace of Oliva, in 1760. Den- mark was desirous of attacking Sweden and the house of Holstein-Gottorp. Holland knew how to check, by similar means, this spirit of usurpation, and to re- establish the balance among the northern powers, in 1700, by the treaty of Traventahl. 5. This republic, led astray, by the war of succes- sion, froni its only true policy, gradually lost all its influence in the north of Europe, while it acquired none in the south. Spain, claimed by the house of Austria, and almost wrested from Philip V. was about to reunite, on the brow of Charles VI. the crowns worn by Charles V. The English who saw, with jea- lousy, that Holland disputed with them the empire of the sea, drew her into that famous coalition, and suc- ceeded in overwhelming her with debt. She dearly Chap.L OF EUROPE. 117 Holland takes part in tliewarsof die south. — Decay of her power. purchased the barrier treaty, in 1709. She was after- wards repayed with ingratitude by the* court of Vien- na, and compelled to sign the treaty of 1715, which that court has since trodden under foot. Eng^land, bv taking on itself two-thirds of the maritime expenses, and throwing upon Holland the same proportion of the expenses ot the land service, so lar diminished the naval forces ot that republic, while its own were augmented in equal proportion. " From that *' time," says the judicious author of the work, enti- tled. The Jf'cal/h of iiolland, " the Dutch did noth- " ing worthy of the maritime reputation they had " acquired. In 17 12, their colonies v. ere laid under " contribution by the French ; the Swedes captured " their merchant ships, without any appearance of " opposition on the part of the republic. It was not " till 1715, that it joined the English fleet of twenty " sail, with twelve ships of war, in order to protect " the commerce of the two nations in the Baltic, per- " petually harrassed by the Swedes, who, in the war " against Russia, continued to seize all vessels bound *' to that country. The Dutch had even to suffer ** from the Algcrines. In 1721, it was calculated ** that those pirates had taken more than torty valu- ** able ships, with their cargoes, worth above six " millions, besides nine hundred seamen, reduced to " slavery." From this period, the fleets ot Holland arc no more to be seen, and the excellent marine disci- pline of the Batavians has fallen into neglect. A \'an Tromp, a Ruy ter, or EvertsoD;, has not again appear- U^ 118 THE MARITIME LAW Part L 1 Pai-allel between England and France. cd ; England, alone, with her squadrons, covers eve- ry sea, where she rules with the most disgusting tyran- ny.(115) ARTICLE V. Parallel between England and France, in regard to their Claims to the Empire of the Sea.^ §1. IN this article will be comprised all that was intended to be said of England and France, in order to bring into comparison the spirit by which these two powers have long been actuated. At the same time, I shall submit to the judgment of the reader, the inordinate pretensions of the first. (115) See La poUtiques de tons les Cabinets de V Europe, with the learned notes of M. Segur, the elder, vol. 2, from which the above facts have been taken. * It may be proper to inform the reader, that the following article, as well as tlie former part of this chapter, excepting twelve pages has been added by the author, since the former edition of his work, printed in 1796. If, instead of a partial discussion of the political conduct of two great and rival nations, our author had confined liimself to a concise and luminous description of the progress and present state of their marine, it would not have been thought an unnecessary digression from the subject of his work. The zeal, not to say, partiality, which he has manifested in the cause of France, induces a suspicion, that he has not been careful to hold the balance with an even hand, nor to preserve that spirit of moderation and justice which belongs to a neutral character T. Chap.L OF EUROPE. 119 England has abused her power. — The ancient Britons. who, in contempt of all laws, has, for ages, used eve- ry means to obtain the empire of the sea, and the moderation of the second, who has always resisted those pretensions, and has endeavoured to maintain the freedom of navigation by an uniform opposition to her rival. England has consulted nothing but her maritime strength, and in proportion as she has felt its greatness, she has thought herself authorised to engage in every enterprise. So absolute has this pow- er at length appeared to her, that she has believed herself exempted from the observance of the most solemn engagements, and of the most sacred princi- ples of the universal law of nations. History will be consulted in search of facts to support the truth of these assertions, and to enable us to form a closer comparison between the conduct of the two nations, from which the most important conclusions will flow. •_'. The ancient Britons, dwelling in caverns, with which the interior of their island abounded, were not in a situation to oppose any resistance to the invasion of the Romans, under the command of Ca3sar.(ll6) According to Pliny, (117) they possessed, at that time, (I IG) Jul. Caesar, debell. gall. lib. 4,c. 22. (117) Plin.hist.nat. lib. 4, c. 3. " England," says the Abbe Ray- nal,'" finding herseir at tl;e present day, the first niarilime power, " rca.liiy imagines that she has always possessed the empire of the " se;i. At one time, her maritime superiority is traced as far back, " as the lime of Julius Caesar; at another, the date of her domin- " ion over the sea is, at least, in the ninth century. At some future " day, perhaps, the Corsicans, who are of no consequence at pre- 120 THE MARITIME LAW l^art I. Offa, king of Mercia, the first who claimed the empire of the British sea. ■■ — — only light canoes, made of osier, and lined with leather, similar to those still used by the Greenland- ers. The Saxons, the Jutlanders, the Angles, and other northern nations, who successively ravaged their coasts, and who olten pursued the natives into their gloomy retreats, did not inspire them with the idea ot opposing these attacks, by armed ships. The Angles finally succeeded in establishing themselves permanently in the greater part of the island, and gave their name to the country, which they divided into seven kingdoms. 3. OfFa, king of Mercia, the most powerful prince in the heptarchy, distinguished for the wars he carri- ed on against the neighbouring kings, and for his solicitude to maintain a considerable fleet to guard the coast, appears to be the first who had any pre- tensions to the empire of the sea. He disputed it with Charlemagne ; and this great monarch, who had not time to form a marine, seeing the advantages to be derived from the naval forces of Offa, in oruardins his dominions a2:ainst the attacks of the Normans, who, with powerful squadrons, sometimes with fleets of 120 and 200 sail, exercised piracy, and every kind of robbery, on the sea, did not disdain the alliance of the Mercian king. Char- " sent, when they become a maritime nation, will inscribe in llieir " records, that they have always possessed the dominion of the " Mediterranean sea. Such is Uie vanity oi man ; it seeks to ag- " grandize its nothingness in past, as well as in future times." Tableau de L' Europe, p. 70. Chap. L OF EUROPE. 12 1 Maritime power of Charlemafpne. iemagne was soon in a situation to send succours to Offa, and to make himself feared on the ocean. (118) Like an able politician, he perceived that 1 an empire, whose limits were so extensive, could / not be supported without a well organized marine. He built, and carefully maintained vessels to cruise at the mouths of the rivers, along the coasts of France, Germany, and Italy, and to guard all the maritime frontiers of his dominions, from one sea to the other. By the prudence of his measures, he defeated the ambitious schemes of Offa, and beat the Saracens near the islands of Sardinia, Corsica, Majorca, and Minorca. He sent his son Pepin, with a formidable fleet, against the Venetians, who conquered them, and by means of his squadrons, he made the French flag every where respected. 4. One of the successors of Offa, the proud Edgar, who maintained a numerous fleet to guard the coasts, imagined himself the absolute master of the ocean. He assumed the pompous title of Emperor and Lord of all the kings, and master of all the islands of the (118) The Englisli author';, themselves, are compelled to agree, that Charlemagne had the superiority in the British seas. See.Zerf- iard's History of the English Marine, Vol, /.* • See Henry's Histori' of Great Britain, Book II. Chap. II T. 122 THE MARITIME LAW Fart I. Pride of Edgar. — Moderation of Canute. British seas.( 11 9) Edgar, being one day at Ches- ter, embarked on the river Dee, and his inordinate vanity suggested the idea of compelling eight princes, his tributaries, to row the bark, while he directed the helm ;(120)* a naval triumph without example in the history of Europe. This instance of folly verified the old maxim, that the triumphs of pride are always insulting to humanity.(l2l) Swaine, king of Den- mark, having driven Ethelred II. from the English throne, was proclaimed in 1014, king of the country, where he died in 1015. Canute the Great succeed- ed his father, and united in his person the crowns of Denmark, Norway and England. His heart was not inflated with those vain and ridiculous pretensions to the empire of the sea, so much cherished by the kings of England. Uninfluenced by that insulting pride, so natural to them, he observed an opposite conduct. His courtiers, accustomed to flatter their sovereigns on the maritime empire which they were disposed to assume, attempted one day to persuade Canute that his dominion over the sea was unbound- ed. This prince, without appearing to be displeased at this flattering falsehood, invited them to a fishing (119) Alti tonantis Dei largiflua clcmeniia, qui est lex regum, Egv Edmrdus, Anglorum Basikus, omniumque regujn, insularum, oceaniqvc Britanniani circumjacenlis, cunciarum natinnrtvi qw" infra eum indu- duniur, dominus, 6fc. Chart, eccl. Wigorn. ad an. 964. Selden, Merc Clausum,p. 137. (120) Chronic. Saxon, p. 1.37. ^ Hume, vol. \,p. 1 13. (121 ) M. de Sainte Croix, de la puissance nuxak ds I'Angleterre. Chap. I. OF EUROPE. 123 Canute reproves his courtiers for their flatter}-. — William I. c party ; after which, he directed a sumptuous repast to be prepared on the borders of the sea, and to be serv-ed up at the tide of flood. The guests soon per- ceiving the waves to approach them, left their places; the king remained alone, and commanded the sea to retire. The waves still continuing to rise, he pretended to be in a rage, and exclaimed, " AVaves of the ocean, '' is it thus that you respect your master .?" Then turn- ing to the courtiers, he added, with a smile of con- tempt, " He alone who holds in his hands the ut- "' most limits of the world, has a right to command " the elements, and to prescribe bounds to the f' ocean."(122) 6. William I. duke of Normandy, surnamed the Bastard, on account of his birth, and the Conqueror, for having subdued England, made himself master of that country in 1066, after the defeat and death of Harold, the last of the Saxon kings. To this prince England owes her grandeur and power. The Eng- lish, before barbarians,(123) were softened by the manners of the French, whom they now detest ; though to them they are indebted for their glory and (122) Unde rex resiliens neminem regi nomine dipimn esse pronun- ciaTit, prfcter eum Unicum, cujus nutum tarn more quam terra ohser- varet. Florileg. adan. 1035. Selder, Mare Clausnm, lib. 2, cap. 12.* (123) The Englisli, at this pcriuJ, were not unlike those describ- Sce ako Iluinc's llistorj of England, vol. 1, p. loi2.. J 24 THE MARITIME LAW Parti. William Duke of Normandy : His ingratitude. prosperity. William could not have gained posses- sion of his new kingdom, without the assistance of Pliilip I. king of France, and Baldwin, count of Flanders, to whom he was bound by the ties of eternal gratitude. But this fortunate and powerful vassal, as it too often happens, soon forgot his bene- factors. He blushed to owe his crown to them, and he transmitted to his successors those seeds of aver- sion and hatred, which have since continued to shoot and expand. (124.) 7. The successors of William neglected the ma- rine so much, that when Richard I. for his courage surnamed C(cur de Lion^ undertook his crusade to ed by Horace. The Roman poet, after invoking the muse Calliope, thus expresses hirriselt : Utrumqne mecum vos eritis, libens Insantentem navita Bosphormn Tentabo, el arenies arenas Lltioris Asyrii Viator : Visum Britannos, hospitibus feros. Lib. 3, Ode 4. (124) Froissart remarks, that in his time, (1337 — 1410) the Eng- lish felt such extravagant anim.osit)^^ agamst France, that man)- gen- tlemen covered one e}'e with a piece of black cloth, in consequence of avow they had made never to see with that eye, until they had signalized themselves by some memorable exploit against France. This is another trait of the ferocity remarked by Horace i'l the pre- ceding note.* Yot this was near 300 years afto" tjie Norman conquest T. Chap. I. OF EUROPE. 125 Richard I. — Naval exploits of King John. Palestine, he was obliged to have recourse to foreign- ers, for ships to transport his followers. John, sur- named Lack-land, succeeded his brotlier Richard, and maintained no larger naval force. Like his bro- ther, he was under the necessity of soliciting the count of Flanders to fight against Philip Augustus, who had collected in the Seine, a fleet of seventeen hundred sail.(125) The counts of Boulogne and Sal- isburv, who commanded the English naval forces, learning that the French fleet, lying at anchor in the harbour of Dam, and alone: the coast near the citv, w^ere deserted by theirsoldiers, w^ho had landed for the sake of plunder, attacked and boarded the ships with- out opposition, cut their cables, brought ofl'three hun- dred of them laden with provisions, and burnt one hundred more. This victory, due only to the assist- ance and the boldness of the count of Flanders, the enemy of Philip, rendered John so intoxicated with pride, that he afterwards pretended that his mar- itime laws were respected by all the world. He had, in consequence, the ridiculous arrogance, to require all foreign vessels, on meeting an English ship, to sa- (125) If we attend to the weakness ot these vcssgIs, we sliall not be surprised at the number. Tlie greater part of them were mere- ly coasting crafl, that is, large boats, or barks with three masts. The others were gallies, aklnd of vessels of war with sailsand oars, having the prow armed with a beak head, or brass trident extend- ing almost to the water line.* Ducange, Voc. Galen. " See Henry's History of Great Britain, Book III. Clirsp. 1, & 6 T. / 126 THE MARITIME LAW Parti. Edward I. claims tlie sovereignty of tlie British sea. lute the flag, and ordered his officers to compel them to pay this homage to his power, and to chastise their captains in case of refusal. (126) 8. Edward the first, though engaged in a war with Scotland and Wales, did not relax his efforts to ex- tend his authority over the seas surrounding Great- Britain. He prohibited the Flemish and Dutch from fishing in them without his express permission, and published an ordinance, enjoining his officers, vigi- lantly to maintain the sovereignty possessed by his ancestors, over the British ocean.(l27) 9. Ledlard, who wrote by order of the govern- ment, his history of the English marine, and is strong- (126) The words of this ordinance of king John are, "Encontre '•' sur la mier aucuns nefs ou vaisseaux charges on voiles, qui veuillent " avaler et abaisser leur triefs an commandement du lieutenant du " roi, ou de I'admiral du roi, ou de son lieutenant ; mais combattant " encontre ceulx de la flotte, que s'lls puent estre pris, qu'ils soient " reputes comme enemies, et leurs nefs, vaisseaux et bien pris et " forfaits, comme biens desenemis, tant soit que les maitres etpos- " sesseurs d'iceulx voudraient vener apres et alieguer meme les nefs, " vaisseaux, et biens, estre biens d'amies du roi nostre seigneur, et *' que la manle estant en iceulx, soient chasties par emprisonne- " ment de leur corps, par leur rebellit6, pour discretion." Stlden Mare Clausiim, lib. 2. (127) The words of this ordinance are, " especiellement de re- " tenir et maintenir la souveraignete que nos ancetres, royes " d'Engleterre soloyent avoir en la dite mier d'Engleterre quant " a I'amendment, declaration, et interpretation des loix par eux " faites a gouverner toutes maners de gentz passantz par la dite " mier." Sddai, lac. cit.j Chop. L OF EUROPE. 127 Reasoning of Lediard. — Dispute between Philip and Edward. ly attached to the system of the maritime sovereigntv of the English, supports, by a very curious train of reasoning, the extension of this empire over the wa- ters which wash the coasts of France. " During two " hundred and fifty years," says he, *' that the Nor- " mans were masters of both sides of the channel, *' no person had a right in any part of the British seas; ** the sovereignty belonged exclusively to them. But " in what quality do they hold this right, if it is not " in that of kings of England } By what title, if it is " not that of its being an inseparable apanage o{ \.\\cit " crovim." Thus,because the French conquered Eng- land, England became, at once, mistress of her own coasts, and those of Normandy : but when England lost that province, when she renounced it forever, by the treaty of Abbeville, confirmed by many others, she still remained, according to Lediard, the sove- reign of the sea which bathes the Norman coast ' The same author defies France to prove that she ever had the right to nominate an admiral in those seas, in which the English assert that France can have on- ly a commodore.(l28) 10. Philipc-lc-Bel, having nominated Regnicr Grimaldi, a Genoese, admiral of the channel, Ed- ward considered himself insulted, and demanded sat- isfaction, which he did not obtain. The English pre- tend, that the arbiters chosen by each party to decide (128) See an excellent work, on this subject, of M. Viennot dr- Viublanc, entitled, Rivalile dc la Franc: et d" Anzktcnr . 128 THE MARITIME LAW Part L Decision of the arbiters between France and England. this difference, determined in favour of the English monarch, and declared that his predecessors, had been always sovereigns ot the sea, in which the kings of France had no right to have an admiral, but merely a commodore. If this pretended award, in favour of the maritime sovereignty of England, did take place, it ought to have been preserved with as much care by the English as their Magna Charta \ yet it is no longer to be found, in the records of the tower of London, where Bouroughs, Coxe, Selden, and others pretend to have seen it.(129)* Sir Walter (129) M. Sainte-Croix, in the work before cited, asserts, that M. de Breqtiigny, coukl not discover this piece, after a most diligent and close search made by him in the tower of London, by order of the king of France. Long before him, the laborious Rymer ap- pears not to have been more fortunate, or has rejected the paper as spurious. '" Selden founds his assertion on a record to be found in the tower of London, part of which Coke has transcribed, in his Institutes, part 4, ch. 22. It is entitled, De superioritate maris Aiiglm etjure officii admiralitatis in eodem. It seems, that certain commissioners, or auditors, were appointed by Edward I. and Philip le be/, to de- cide some maritime disputes which had arisen between the two na- tions, and that procurators from the principal maritime states of Europe attended before those commissioners; that is, from Genoa, Catalonia, Spain, Germany, Friseland, Denmark, and Nonvay, and other places. The libel presented by these procurators to tlie com- missioners, is given by Coke as extracted from the record of their proceedings, written in Norman French ; it recites, " that where- as, the kings of England, by right of their said kingdom, have, from time out of mind, been in peaceable possession of the sovereign lordship of the English seas, and of the islands within the same,'' &:c. &c. It improbable, that the award of the commissioners is Chap. I. OF EUROPE. i2!) Maritime war between England and France. = » ■ ■ - ■ -v R ileigh himself, though strongly attaclied to the glo- ry of his country, acknowledges, that he did not un- derstand that the Enj^lish maritime dominion became absolute before the reign of Henry VIII.(130) Be- sides, it appears that this dispute was not terminated by that award, so much vaunted by the English au- thors ; but that the two kings, irritated against each other, commenced an open war. An English fleet insulted Rochellc, and carried ofFa large booty. Phi- lip le bd, sent a considerable naval force against En- gland, under the command of Matthew de Mont- morency, w'ho landed near Dover, seized upon the place, and burnt a part of the town. This enterprise led to an accommodation between the two princes. 11. Mary, queen of England, having married, in 1554, Philip II. king of Spain, imagined, that she could gain the unfeeling heart of her ambitious spouse, by seconding his designs against his adversary, Henry II. king of France, who had just lost the battle of St. Quintin. She, therefore, endeavoured to prevent the success of the French cruisers, who had made a great contained in ihis record, or at least, from so much of it as appears, that it was in favour of England. The record in Coke, is doubt- less the one referred to by Sehlen, and must have been seen by him T. (130) This assertion of Sir Walter Raleigh is not the less gratu- itous. The English were often, at that time, beaten by the French. Henry Vlll. m 1536, was obliged to sue for peace with Francis I. It was granted on condition of restoring Boulogne to France, Vol. I. R 130 THE MARITIME LAW Parti- The English cluim the channel.— Elizabeth's answer to the Spanish envoy. number of prizes in the channel. Through her chan- cellor, she complained of this conduct. This minis- ter, in his note, says, tliat he is surprised that the French should undertake to capture foreign vessels in the channel, the protection of which belonged to the queen, his mistress. Antoine de Noailles, the French ambassador, answered, that, without investi- gating the rights of the English, he might also com- plain that they had so badly discharged their duty in protecting this passage, that many French merchant- ships had been captured by the Spanish ; that, after all, the sea was free and common, and that power alone conferred the sovereignty of it.(131) 12. Queen Elizabeth, whose discourses were al- ways made with much consideration, replied to the envoy of Spain, Don Mendoza, who complained that the English were allowed to navigate the Indian ocean, that she saw not why the English, or any other nation should be interdicted the navigation of those seas ; that, in this respect, she knew of no prerogatives possessed by the Spaniards, much less that of prescribing laws to those who were not bound to obey them ; that the use of the ocean on which the English sailed, was as common to them, and to all mankind, as the air, and that by their na- ture, these elements could not be subjected to the power, or become the property of any person what- (131) See Amhassade et nesj^otiation de Noailles, to?n. 1^ p. 291. DepLche d' Antoine de N0auks, du 27 Aoftt, 1555. Chap. I. OF EUROPE. 131 Nava] power of tlie Dutcli. — King' Jaiuos surrenders the cautionary towns. ever.( 1 S2) This principle, no less founded in reason, than permanent and universal, was soon torgotten by the successors of that illustrious princess. Besides, Elizabeth having laid the first and true foundation of the maritime empire of her nation, had not time be- fore her death, to secure it by a solid and advanta- geous treaty of peace. After her decease, the sceptre of the seas passed to the hands of the Dutch. The possession of it v^^as afterwards insured to them by the brilliant victory of \^an Tromp, over the grand fleet of Spain, to which Philip II. before the engagement, had given the name of invincible. 13. In 1616, James I. king of England, being in want of money, the Dutch took advantage of his ne- cessities, and managed the monarch with so much address, that the next year he resolved to restore to them, the towns of Flushing and Brille, and the fort of Ramenkens, by the possession of which, the English had kept them in a state of dependence. (133) The regret which this prince felt, after surrendering these cautionary towns to the Dutch, not only irritated him against Barnevelt, the author ot the negotiation, but rendered him still more ill-disposed towards the re- public. He sought occasion to intercept their her- ring fishery on the coast of Scotland ; and upon the (132) Camden's Life of Elizabeth, 15S0. (133) See Letters and Negotiations of Dudley Carlton, vol p. 57, &c. Burnet's Memoirs, vol. 1, p. 23, 2k i 132 THE MARITIME LAW Parti, James captures the Dutch fisliermen : his reply to tlieir complaints. reiterated complaints of the Dutch, his minister wrote to the English ambassador at the Hague, the 1st of January, 1617, to the following effect: " That his Britannic majesty wished the States " General to be informed, that the king of Spain had " requested leave of him to fish in the British seas, " and that the king of France had desired that this li- " berty might be granted to him, for the supply of his " own household. His majesty further declared, that " he understood the laws and rights of his kingdom, " and that it was not from them, nor from their Gro- " tius, that he should learn the principles of the law " of nations ; in short, he threatens them, that if they " do not acknowledge the legality of his claims, as " all the other nations of Christendom have done, it " may happen, that by their obstinacy, and their '•' ?nare liberum, they would soon be reduced to want " ierrarriy and solum, and rempiiblicam liberam" Notwithstanding the violence of this extravagant let- ter, James, whom Henry IV. called Capitaine^sartSy et clerc auxarms^ was satisfied with a verbal acknow- ledgment, and by his lawyer, Selden, claused an an- swer, entitled Mare Clausiim, to be given to the trea- tise ofGrotiiis, under the title of Mare Liberum. Du- ring the reign of this monarch, every controversy, though commenced with bitterness, and with much scholastic disputation, ended in a peaceful manner. 14. This prince, who never let slip an occasion to exhibit his claims to the empire of the sea, took ad- Uiap. I. OF EUROPE. Treatment of Sully, the French ambassador. vanta2:e of a remarkable circumstance to assert them against France. It was that of the embassy of Sullv, sent by Henry W . to England, to felicitate James on his accession to the throne, and to renew the an- cient treaties. Cardinal Richelieu, who knew the re- sources of his country, and was desirous of making Lewis XIII. sensible, how necessary it was for France to maintain a respectable marine, relates the following fact : ** The duke de Sully, appointed by *' Henry W . ambassador extraordinary to England, " having embarked at Calais in a French ship, bear- *' ing the French fiag on her mainmast, was no soon- *^ er in the channel, than meeting the English vessel " which was to receive him, the commander order- '^ ed the French vessel to lower her colours. The " duke, believing that his official character would *' protect him from such an affront, resolutely refused *' compliance ; but this refusal was followed by three *' cannon-shot, which, entering the ship, pierced the *' heart of every good Frenchman. Force compellcfd *' him to do what reason forbade, and to the com- *' plaints he made, the only answer he could obtain *' from the English captain was, that as his dutu obli- / ^^ ged him to respect the rank of the ambassador, the ./ *' latter was also bound to render to the /lag of his mas- ^ ** tery the honours due to the soveirign of the sea.''\ 134) Henry IV. dissembled his resentment, but with a firm resolution to maintain the rights ot his crown, when time should have enabled him to acquire a suf- (131) Ttstamcnt politique du Curd. Richelieu, cli. 1, § 5. 134 THE MARITIME LAW Part L Croin\sell asserts the sovereignty of the sea, agahist the Dutch. ficient maritime force. Unhappily, that great king was assassinated at the very period when he had con- ceived, and was preparing to execute, the project of creating a national marine. 15. 'Cromwell, after seizing on the throne, from which he had precipitated his sovereign, and brought him ignominiously to the scaffold, was not slow to resume the old pretensions of his country, to the em- pire of the sea. England, says he, having acquired this empire, from all other nations, by the point of the sword, cannot allow any flag but its own, to appear on the ocean. He wrote to Blake, the commander of a squadron, destined against the Dutch, this very singular letter : " It would be to your honour, sir, " and that of the brave captains under you, to send " all these frogs [the Dutch] back again to their " marshes, and not to suffer them any longer to dis- " turb us with their croaking."(135) 16. The medal, struck at London, after the victo- ry gained over the Dutch, by the English fleet, un- der the command of the Duke of York, on the 13th of June, 166e, sufHciently displays the national spir- it with which Cromwell had inspired the English, and the unalterable pretensions of this ambitious and proud nation. On the medal is represented the Ge- nius of Great-Britain, with this legend: Quatuor ma- ria vindico. Charles II. in his manifesto against Hol- land, published in 1672, says, " that it was an un- * Ragueuet's Life of Cromwell. Chap.L OF EUROPE. 135 Charles II. and William III. assert tlie claim to the sovereignty of the sea. " heard of violence for them to pretend to dispute " the empire of the sea with the English, or to re- ** fuse the honours due to their flag." He added, " that this empire was one of the first prerogatives *' of his predecessors, and the last which his king- " dom would relinquish."* He was represented on a medal, seated in a triumphal car, drawn by four sea-horses, with this motto, Et pontus scrviet. 17. William, prince of Orange, the usurper of the English throne, on declaring war against France, the 27th May, 1689, published a manifesto so inso- lent and abusive as to shock even the powers most jealous of the grandeur and prosperity of Louis XIV. His claim to the empire of the sea was supported by the most odious reproaches and outrageous insults. He gave to Louis no other title than king of the * B)nkershoek; observes, that by the saliilation of the British flag, nothing more was intended, than the acknowledgment of that precedence due, by the etiquette of nations, from repubhcs to crowned heads, and their representatives : and he cites, by way of example, the treaties of peace between England and the States General, made in \6b\, 1662, 1667, and 167 4-, in which (he latter stipulate to pay the honours of the flag to the ships of the former in the northern sea.<;, and as far as Cape Finisierre. Quin si nee essent, ita nilulominufi mnribus gentium obtimnt, ut respuhliece regnis assur- gant, et quiinvicem representant, eodem jure, utaniur Anghruvi majestate terra marique conntcr obsertamus, sect 7iegamus ex eo, quod mari obscriaremus, adiei-sus ?ios rede illius imperium jactare, et zri generaliter de doininio Britannici recte sibi blandiri, et praterea ma- gis ncgamus, quod tertio quoqiie vtrbo inculcrit Seldeiius, imperium iv- aulx coinilari pcrpeluo comitatuni J'uisse imperiiim ynaris. Bvnk. d: dominio tnaris, cap. 5, adfinem T. 156 THE MARITIME LAW Part I. English maniresto. — Battle of La Hogve. French, called him the general enemy of the Christian world, and in assigning the concluding motive to war, he did not hesitate to make use of the following terms : " That the rights of the flag which belonged to tbiC " crown of England, had been disputed by his " [Louis XIV.] order, a measure tending to the vio- " lation of our sovereignty of the sea, which has been, " at all times, maintained by our predecessors, and " which we are resolved to support, for the honour " of our crown and of the English nation." William showed himself inflexible in the arrogant claims he had determined to maintain. On account of a vic- tory gained by the combined fleets of England and Holland, consisting of eighty-nine sail of the line, and twenty-three frigates, under the command of Lord Russel, oflf La Hogue, the 19th May, 1692, over the French fleet of 44 ships,{l35) commanded (136) In this famous battle, the courage of the French was the admiration of their enemies. Not one of their vessels struck its flag. Twelve ships, obhged to retire into La Hogue, a port with- out any means of defence, were burnt. Russel had the greatness of mind to write to Tourville in these words: " I congratulate )ou, " sir, on the extraordinary valour which you have disphi^ed in at- " tacking me with so much intrepidity, and in fighting with such " inequality of forces." Shovel anci Delaval, English admirals, and Allemonde and Callemberg, the Dutch commanders, merit applause ibr the praises bestowed on their adversaries; ajustice which en- lightened self love easily confers, but which a mean and jealous po- licy often withholds. The English ministry, in publishmg the ac- counts given by their admirals, suppressed every thing which was honourable to the French admiral, who was destined to appear again on the scene, and whose reputation they feared. Ilistoire de la puissance naxale d'Angleterre, torn, 2. Chap. I. OF EUROPE. 137 Seamen are naturally imperious. — Naval victory of the French. by the famous Tourville, he caused a medal to be struck, representing himself under the figure of Nep- tune, with the following verses, which Virgil puts in the mouth of this God, when addressing the winds : Maturatefttgam, regique diciie vestro, A'ort illi imperium Pelagi* " The natural tone," says Dalrymple, an English his- torian, " of all maritime powers, because they can " insult every where with impunity. "(137) Men who habitually follow the sea, are naturally haughty and imperious ; ambition converts this haughtiness into despotism ; and the natural effect of an insular posi- tion, is to lead to tyranny on the ocean. (138) 18. The briUiant victory gained by the French fleet, under the command of Marshal Tourville, off Beachy Head, the 10th July, 1690, over the combin- ed English and Dutch fleet, commanded by Herbert, (Lord Torrington) and superior in the number of ships and weight of metal, gave to France the mari- time ascendancy. (139) Louis XIV. commemorated this victory with great moderation, by a medal struck at Paris, with this legend : Imperium maris assertum. * Virgil's ALncid, lib. I, 1. 136. (137) Dalrymplc's Memoirs of Great Britain, vol. I, p. 41. (138) Barrere, de la Liberie des Mers, torn. I, p. 3. (1 39) Herbert was so roughly handled in this action, (hat he was obliged to put out his boats, and tow off his ships during the night. Had it not been for this circumstance, Tourville would have en- VoL. r. s 138 THE MARITIME LAW Part L French victorious over the combined fleet under Admiral Rook. He caused another medal to be struck, on which were seen broken ships, masts, and flags heaped among the arms of England and Holland ; upon the summit of this naval trophy, victory holds in one hand a crov^ n of laurel, and in the other a palm. The words of the legend are, mersa, et fugata An- glorum et Batavoimm classe ; and those of the ex^ ergue, ad or as Anglic, x. Julii, MDCXC. The count of Thoulouse, commander of the combined fleet of France and Spain, directed by M. d'Estrees, chased from their coasts on the Mediterranean, the English and Dutch fleets, under the command of Admiral Rook.(140) The memory of this event was preserv- ed by a medal, which represents Spain sitting on a tirely destroyed the English fleet. As the Dutch were most expo- sed to the French fire, there wasnot one of their ships but what was crippled or dismasted. The enemy lost fifteen large ships, and five fire-ships. Two-thirds of their crews were killed, wounded, or made prisoners. The French fleet did not lose a boat. It had 400 killed and 500 wounded.* (140) The English, though superior in force by six sail of the line, quitted the field of battle. The French lost but one ship, and. the Dutch vice admiral's was blown up.f * The French fleet consisted of seventy -eight large ships, besides fire- ships and frigates. The combined fleet consisted of twenty -two Dutch and thirty -foui" English ships. Balryvxple's Memoirs, vol. 3, p. 18. Smoilet's Continuation of Hume, vol. 1, p. 96. The English historian states the loss of the English to be only two ships, and 400 men T. t The English and Dutch fleet consisted of 23 sail. A large French fleet of eighty sail, was lying in Logos Bay, though only eighteen ships vv ere dispatched to attack the En,c:lish. Three Dutch ships sustained tlic whole fight of eighteai French, ar.d gave the Er.glish an opportunity to es- cape. ScsJDalrjin^tk's Memoirs, part 3, p. 47". Sinollet, vol. 1, p. 205 T. I Chap. I. OF EUROPE. 139 A rrog'ance of the English : Means by which they acquire their superiority. half column ; victory appears above in the air, hold- ing a palm in her hand. The legend is, One His- panm securifas ; the exergue, Anglorinn Batavorum classe fiigafa ad Afalacam, 24 Aug. 1704. 19. It is not by medals only, that the English gov- ernment has shewn its insulting arrogance. The ex- ample of moderation in France has never been able to raise a blush in England at the maxims she has adopt- ed. She has boldly proclaimed her pretended maritime empire in the faceof the world.(141) England has al- ways felicitated herself on her superiority at sea j but how shamefully has this superiority been acquired ; by the violation of the sacred principles of the law of na- tions, by which alone she has attained that ascendan- cy ; by ruining the commerce of every nation, and by keeping so many French seamen to perish in her pri- sons. (142) If the British government wishes to dis- (14-1) In an order, relative (o (he English marine, of the 1st of Januar)-, 1734, we find the following article : " Foreign vessels, " meeting any ship of his majesty, in the British seas, as far as " Cape Finistcrre, and refusing to lower their flag, ought to be " compelled to do so, and those who shall neglect to compel them, " will be informed against. Ships of his Britannic majesty are not " to lower the flag in the British seas, nor in foreign seas." (14'2) In the lOih article of the answer to the ultimatum of France, who, in the negociation at Augsburg, in 1763, insisted, at first, on the restitutionof the vessels taken before the declaration of war, the British minister had the assurance to advance, that "this " demand was neither just, nor to be supported according to the " Incontestible principles of the laws of war and of nations." What an answer ! Such impudence will alwavs impose silence on probi- ty and moderation. no THE MARITIME L AAV Part L Unjust conduct of England in making captures before it declares war. turb the peace of the world, if it desires to attack France, it calculates chances, it watches the moment when perfect security induces the citizens of other countries to engage in commercial speculations, and to exert their maritime industry, it then commences war; hostilities precede any declaration, the seamen, the wealth of the nations it summons to the combat, become its prey, and are declared its property, (1 43) Surely, the usage among other nations was sufficient- ly established, to prevent acts so contrary to the com- mon rules of equity ; but, unfortunately for British honour, it must be remarked, that provision had been (143) History affords many examples of this conduct. It will be sufficient to cite a few, the most known. The attack of the Dutch Smyrna fleet, in 1672, and of the Spanish fleet, on the coast of Sici- ly in 17 18. These two acts of hostility were not preceded by any declaration of war ; nor was the capture of the two French frigates, Le Lt/s and L'Alcide, or that of two hundred French merchantmen at the beginning of the war before last. In 1755, without any pre- vious declaration of war, the English attacked and took, off Cape Race, in the island of Newfoundland, ten Frerxh ships; their cruisers, afterwards, fell upon the merchant-ships, captured three hundred of them, and made eight thousand seamen prisoners.* la the present war, before the return of Lord Whitworth to London, many French ships were taken and carried into the British ports : Vessels of war were, in like manner, attacked on the coasts ci Eu- rope, and in the latitudes of America and Asia. * See SvioUct's continuation of Hume's History of England, vol. 3, p. 437, 440, 442. " The British ministry, in their conferences with count Mi- " repoix, made no secret that their admirals, paiticularly Boscawen, had " orders to attack the French ships wherever they should meet them." T. Chap. I. OF EUROPE. ui Conduct of France ; its naval superiority in the reign of Louis XIV. made by treaty, for this very case. By the treaties of Utreclu and Aix la Chapelle, it was agreed that the two iiations, in case of war, should mutually grant safe-conduct to such of their subjects respectively, as had vessels in the ports of the other, because, says the 2')th article, not having any knowledge of the rup- ture that takes place, they navigate in the confidence of peace, and on the faith of treaties. From a single trait, we may discern the difference between the con- duct of the two nations. At the very time that Eng- land every where captured the French vessels, France restored, with religious faith, all the English vessels found in her ports, at the time of the rupture, or which had been taken at sea, before a knowledge of the declaration of war. The cabinet of St. James accepted the restitution ; but made none on its part, satisfied with admiring the good faith of France. 20. The long and brilliant reign of Louis XIV. afforded the French marine every occasion that could be wished, to distinguish itself, and to obtain a de- cided preponderance at sea. It is well known what part this marine had, and which it must have natu- rally had, in the series of important and glorious successes that attended this great king. Notwith- standing his maritime superiority, it does not appear that this prince ever arrogated to himself the empire of the sea. If any thing could be suffered to destroy the principle of natural independence, and general liberty on the sea, a principle, the violation of which ought to rouse every man of feeling, in the cause of 142 THE MARITBfE LAAV Parti. France has tlie best claim to the empire of the sea. humanity, and the interests of his country ; if any na- tion might be allowed to assume this distinguished rank, and to rule over the waves, what power has so fair a claim to be called to this high destiny, as France ?* France, situated on two seas, is, by its singular position, essentially, a maritime, coramer- * When we consider the great and decided superiority of France on the continent, her fortunate position, and internal resources, we . cannot believe that the other continental powers would willingly see her in possession of an equal preponderancy on the ocean. If France should obtain a maritime ascendancy, what security would the nations of Europe have against the abuse of such exorbitant power, or that its government would not, like that of Rome, after the destruction of Carthage, attempt the subjugation of the rest of the world ? The same danger is not to be apprehended from Great Britain. Her power at sea is great; on the land it is nothing. Her insular situation, and the habits of the people, render it impossible for her to succeed in any plan of aggrandisement on the continent opposed as she always must be, by superior military force. What has France, Germany, Austria, Spain, Prussia, or what have the powers of the North to dread from the armies of Great Britain ? On the other hand, what would not Great Britain have to fear, if her naval power should be annihilated, or transferred to France ? She wisely and justly considers that her prosperity, and even her existence as a nation, depends on the superiority of her military ma- rine. Her determination, therefore, to maintain this bulwark of her safety, appears, to an impartial observer, more praiseworthy than blameable. She has, however, to guard against the abuse of her maritime power ; lest, blinded by self-interest, she adopt meas- ures which may provoke a combination that will endanger the ex- istence of what she is so anxious to preserve. It is the wise policy of the United States, to maintain a neutrality in the wars of Europe ; MvA it is their interest that an equilibrium should be preserved be- tween England and France T, Chai). I. OF EUROPE. u: The courage, iictivity, S;c. of France, entitle it to a sviperioritj' at sea. cial, and military power. She seems thus placed by nature, that she may give her hand to all the com- mercial nations of the world. Frenchmen, in spite of a superiority in the number of their enemies, have never refused to fight ; nor has England ever triumph- ed over them, when the forces of the two nations were equal. The French marine has uniformly com- bated, without calculating any other chances, but those of courage : France has constantly taken up the glove when thrown by the English. (144) Might it not then have assumed that rank upon the ocean, to which by its activity, its industry, and its courage, it has long since been entitled ? This has not been done. (145) [\'V\) Before the two last reigns, the ridiculous preservation of the title of king of France, afforded the king of England, every year, an opportunity of displaying his folly. On the first day of the year, a herald at arms, in the churcii of St. Paul, in presence of the court and of the foreign ministers, proclaimed all the titles of the king ; and when he came to that of kin"; of France, he threw down a glove, which the French ambassador never failed to take up. (143) All thecabinetsof Europe, since the peace of Utrecht, have erred in not perceiving thcchanges which were made in the relative interests of the principal European powers. Mably, in his Droit Fub- liquc de V Europe, has seen this truth, and has expressed it in the fol- lowing terms : " The court of France, sceinj;, at the treaty of Utrecht, " that England assumed that rank among the powers of Europe which " Austria had held, ought immediately to have taken measures for " there-establishmentof her marine, and to have gradually directed " her principalforces to the sea coast. Whenever a maritime pow- " cr, engaged in commerce, and wishing to aggrandize itself in " America, is placed at the head of aHairs, seamen and ships be- y 144 THE MARITIME LAW Parti, Conduct of tlie English in their sea-fights witli the Fi-ench. 21. The English marine has not been conducted on similar principles. Its practice in time of war, is governed by two fundamental maxims ; never to at- tack, unless stronger than the enemy, both in the number and size of its ships ; to abandon the field of battle when it is not certain of success. If, at the ap- proach of night, the fortune of war is not on the side of the English, they are sure not to be found the next day. This circumspection was exhibited even by the daring Rodney, who fled three times before the skilful de Guichen ; by admiral Keppel, who precipatately retired into port, as soon as he perceiv- ed the French squadron, in the road of Brest, to be stronger than his own. The same admiral follow- ed this maxim, in the night following the action, off Ushant, and retired, while d'Orvilliers remained on the field of battle, and reserved his fire during the night.* The same conduct was observed by Byron towards de Estaing, and by admiral Hood. In the great naval actions, in the East-Indies, Hughes, not- withstanding his valour, did not persist in disputing " come more necessary than land forces. By this conduct, France " would have been better prepared, and would have rendered ne- " gotiations more easy and successful. By restraining the mari- ••' time power of the English, she would have diminished the influ- *•' ence which they have acquired in the affairs of the continent. •' The court of London, less confident and daring, would have con- *' ducted with less haughtiness, and more good faith." * A very different, and almost opposite, account of this action is given by the English historians. SeeBeatson's Naval and Miliiaiy Memoirs, vol. 4. Annual Register for 1779 T. Chop. I. OF EUROPE. 145 Fight between Hiiglics and Suffrein. — Lord Chatham's speech. the victory with M. Suffrein, but retired four times, because he saw success as often, ready to crown the efforts of his rival.* An English frigate has never singly attacked a ship of the line. The English are never seen, but the French too often, perhaps, fight- ing, at the same time, against numbers, fortune and force. The time is not far distant, when French sea- men (who never animate themselves with strong li- quors) will join skill to valour ; when the marine of France, reviving under the influence of the hero who now governs the state, will rival, by its exploits and successes, the army of the line. (146) 22. During the war of 1757, the French demand- ed peace. Lord Chatham, blindf as he was, had him- self carried to the House of Lords ; (he was the Ti- resias of the government) " No peace," said he, *' unless France signs the destruction of her marine ^ " it is enough, if she is allowed the coasting trade; " England should reserve to itself the exclusive " sovereignty of the ocean." The same spirit di- rected the hand of that minister, when, on the 18th of September, in the same year, he wrote the follow- " In Beatson's Naval andMiUtary Memoirs, vol. 4, p. 430, vol 5, p. 58 — 64, p. 569 — 614, tlicre is a particular account of" tliese actions, and, as might he expected, materially different fiom tliat of the French historians T. (146) See an interesting work by M. Viennot Vaiiblanc, entitled lliTaliie de la Fiance ct del'Angldene, from whicli I have taken the above facts. f Our author has mistaken the infirmity of Lord Chatham: he nas often lame with the gout, but never blind T. Vol. I. T 146 THE MARITIME LAW Part I, Lord Chatham's orders to Hawke. — Lord Grenvllk's letter. ing dispatch to Admiral Hawke : " I am now to sig- " nify to you the king's pleasure, that you do not " consider the above mentioned time limited for " your return, as intended in any manner, to affect " or interfere with the full execution of the first and " principal object of the expedition; namely, at- " tempting, as far as shall be found practicable, a " descent on the French coast, at or near Rochfort, " in order to attack, if practicable, and by a vigo- " rous impression, force that place, and to burn and " destroy, to the utmost of your power, all shipping, " docks, magazines, and arsenals, that shall be *' found there, and exert such further efforts as shall " be judged most proper for annoying the enemy."* 23. At the close of the 18th century, the British cabinet published in the face of Europe, and the French republic, a letter from Lord Grenville to Lord Malmsbury, which contains the following char- acteristic expressions : " It is his majesty's decided *' and unalterable resolution on this point, not to ad- " mit of any proposal for treating with his enemies, " on the subject of the rights or claims of neutral " powers."(147) Not long after, a member of the English parliament, at the beginningofaspeech, deliv- ered in an assembly which represents the body of the nation, made use of these words, the dictates ofphren- sy or insanity : " They (the French) ought not to fire a * See the original letter in the 3d volume^ page 1 3, of a worken- titled, " Anecdotes of the Life of the Earl of Chatham" T. (147) See Negotiations at Lisle, 1797; Lettersof Lord Grenville. Chap. I. OF EUROPE. 147 Spcccli of the Duke of Clarence. " single cannon on the sea, in any part of the " world, vvitliout the permission of Great Britain j" an expression similar to that uttered by Lord Chat- ham, at a moment when he was attacked by the same malady. It is not a year since, that in the House of Lords, the 23d of May, 1803, one of the sons of the king of England, the Duke of Cla- rence, did not scruple expressly to declare, that the destruction of St. Domingo was the work of England; and he proudly claimed the glory of it, for his coun- try. So much did he disregard that public decency, observed by men entrusted with the government of nations, that he seemed to fear, lest it should be doubted for a moment, that the insurrection of the blacks was owing to the magnanimous efforts of the British cabinet. Proud, without doubt, and self-sa- tisfied with this exordium, he proceeded to observe, with the dignity suited to a prince of the blood ; " I " maintain that England has not broken the treaty of " Amiens, since the face of things has changed, and " the independence of Malta is more than ever ne- '' cessary. It will be, in our hands, the pledge of " the security and liberty oi Europe. The loss ofSt. " Domingo has been attributed to the first consul ; " I think difix?rently, and that it is due to the efforts " of Great Britain. In consequence of his majesty's " message of the 9th of March, it may be said to the " French government, you shall not have St. Do- " mingo, you shall not have Louisiana ; to the Span- " iards, you shall not have the Floridas ; and to Ba- ^' tavia, the ally of the first consul, you shall not have 148 THE MARITIME LAW t^art I. Haughty and imperious conduct of Great Britain towards other nations. t ' " the Cape of Good Hope ; you shall have nothing " but wiiat Great Britain pleases to give you."* The Romans, in the full possession of the empire of the world, would not, in their senate, have hazarded language so audacious. 24. The maritime despotism of England, during the French revolution, has been, by turns, haughty and insuflferable. It devised the plan of starving France, in order to frighten Dtnuiark and Sweden from an armed neutrality ; it has induced Russia to murmur against those principles of the freedom of the seas, which she solemnly recognised in the Ame- rican war of independence. Great Britain supposed, that by these means, she could overturn the system of free commerce in favour of neutrals j but her me- naces have been despised and disregarded by nations, jealous of their rights. England, enraged, carried fire and sword before Copenhagen. This odious attack has left a deep impression on the minds of maritime powers, while her conduct, during the coalition against France, has discredited British influence on the continent. If bounds are not set to the ex- travagant pretensions of the cabinet of St. James ^ if Europe sleeps and does not dream of repressing * His Highness added, '"But, my Lords, I will declare to " yon, notwithstanding my wish to see my country ascend in *' the scale of Europe, I would not wish to see France put down, " I '!o think, for the sake of preserving a balcince, and securing 'J)is *' liberty, there should be a species of rivalry." T. Chap. I. OF EUROPE. 149 Contrast between En jland and France in relation to tlie seizure of seamen. her pride, wc shall, soon, see her, like the Carthagi- nians, declaring to all other nations, that she will not suffer any of them to wash their hands in the waters of the ocean. 25. While England, tenacious of a policy, as dan- gerous as it is alarming, to all maritime powers, exe- cuted, with more rigour than ever, during the Ame- rican war, the plan ot seizing the French seamen ; the government of France had ordered the fishing boats of its enemies to be spared, and for a long- time, endeavoured to obtain the same humanity from the English. These eflbrts were ineffectual ; they persisted in the practice of taking fishermen for the purpose of compelling the seamen to serve on board of their own ships. (148) During the same war, a French cruiser landed on the isle of Sark, in the channel, and carried off six of the inhabitants, who were labourers, and brought them to Cherbourg. This conduct was censured, and the six men were sent back to their own country, by a flag of truce. (14-8) In 1778, the Thomas KmtUkan, a French vessel bound for St. Domingo, was taken in the bay oF Gascoigne, by the Hector. Forty of the captive seamen, were compelled to serve on board ot the English vessel. The Thomas was carried into Portsmoiitii, where her captain and crew were thrown into prison, the sea- men induced by threats and promises, to make false declarations, and the vessd cut up, in hopes of finding some written proofs of her supposed destination. On complaint being made by the French ambassador, the answer of the court of London, truly remarkable, declared the right which it claimed, of restraining, at its pleasure, the liberty of the sea. 150 THE MARITLME LAW Part L Conduct of France towards tlie fisheries of its enemies. Witli such dignity does France reply to those continu- al violations of the most sacred rights, the number of which, to the disgrace of their nation, the English are every day increasing. 26. France has invariably recognised the perfect neutrality of fisheries ; she has constantly adhered to this principle from the reign of Louis XIV. to the present time. It is true, that, by the ordinance of the 1st October, 1692, the Enghsh fishermen were driv- en from the coasts of France j but it granted to those who might then be there, a safe-conduct during eight days, for their return home. This measure, which circumstances justified, was intended merely to guard against spies, who, under pretence of fishing, were employed by an enemy, that was preparing for the bombardment of the maritime places, which was, af- terwards, executed, in 1694. 27. The American war, as has been before observ- ed, furnished an occasion to France to manifest, in a more striking manner, her beneficent system. "The '^ desire which I have always felt," writes Louis XVI. to his High Admiral, the 5th of June, 1778, " to soften the calamities of war, has induced me to " turn my eyes towards that class of my subjects " who are devoted to commerce and fishing, and who " have no other means of subsistence. I trust that " the example which I shall give to my enemies, who " can be governed by no other principles than those Chap. I. OF EUROPE. 151 \ Liberality of France low.irds tlie Entjlish fishermen. " sentiments of humanity by which I am actuated, " will induce them to grant the same indulgences to " the fisheries that I have consented to allow. I have, " therefore, ordered all commanders of ships, priva- " teers, and cruisers, not to disturb, without new or- " ders, the English fishermen, nor to stop their ves- " sels, not even those laden with fresh fish, though " they may not have been caught by these vessels, ** provided always, that they are not armed for of- " fence, and are not convicted of having 2:iven sis:- " nals that might show a suspicious intelligence car- " ried on with the ships of war belonging to the en- " amy." 28. The French government soon had an oppor- tunity of putting in practice the philanthropic princi- ples contained in this letter. A remarkable exam- ple is to be found in the arret of the king's council of the 6th November, 1780. This arret, which renewed the prohibitions contained in tlie letter of Louis XVT. of the 5th June, was passed in consequence of the opposition made by the Chamber of Commerce of Dunkirk to the decree of the council of Prizes of the 10th May, 1780, declaring valid the ransom of the English fisherman, the Jolin and Sarah. The chamber of commerce, in their petition, set forth, that no city in the kingdom was more interested than that of Dunkirk, in maintaining the freedom of fish- ing ; it referred to a letter of the minister of marine, of the 31st May, 1778, containing the opinion of the king on this subject; and the captain o{ the French 152 THE MARITIME LAW Parti. Decisions of the French council in favour of English fishermen. privateer himself, as soon as he was informed that the prize was a fisherman, was eager to give a for- mal relinquishment of his claims. 29. During the different periods of the revolu- tion, the French government, far from issuing de- crees, in opposition to those before given, in regard to the freedom of fisheries, has, on the contrary, uniformly favoured, and extended their principles. In the month of March, 1797, the executive council authorised the municipal officers of Calais, to open a negotiation with the English commandant, stationed at Dunes, for the full liberty of fishing to the distance of three leagues from the coast. In the month of July, in the year 1795, the com- mittee of public safety, sent back, without exchange, all the English fishermen who were in the diff^erent ports of the republic, not considering them as prison- ers of war. This measure contains an implied ex- pression of that regard which ought every where to be shown to a class of men, whose painful and not very profitable labour, usually carried on by feeble and aged hands, is entirely foreign to the operations of war. Similar considerations dictated the wise deci- sion of the council of Prizes, of the 29th July, in the year 1801, under the presidency of M. Ber- thier, counsellor of state, pursuant to the opinion of M. Dufaut, commissary of the government.(149) {14-9) This excellent adjudication, Avas to the following effect : " The council admitting the justness of the opinion of the commis- " sary of the government, and adopting the principles of humanity. Chap. I. OF EUROPE. 153 Pliilantliropic plans of tlie legislators of France. 30. The principles of the revolution inspired the legislators of France with sentiments of moderation and philanthropy. While preparing for war, in order to resist the armies of the coalesced powers, the French republic reflected on the means of preserv- ing nations from its greatest ravages. Its plans were intended to support the operations of industiy among all nations, to maintain the benefits of com- merce, though surrounded with hostile armies, and in the midst of an almost universal combustion. It wished to behold on the seas, a spectacle like that ex- hibited in the fine countries, watered by the Indus, and the Ganges, where, at the side of armies com- bating and destroying each other, is seen the hus- bandman following his plough, almost on the field of battle.(150) " and the maxims of the law of nations, which it displays, order " tliat the fishing smack. La nuestra Senora de la Piedad y animaSi " carried into Cartaya by the French cruiser Carmagnole, togetlier " with the fish laden on board, or the net produce of the sales " which may have been made of the same, be restored to the " master and commander of the fishing smack, or to his authorised " agent, to be disposed of as he may think fit," (150) See the excellent discourse, delivered by Mr. Garat> in the council of ancients, on the 26th day of December, in the year 1799, on the subject oi maritime captures. Fishermen, at least, ought to be protected from hostilities. In times of the greatest discord, they were formerly spared, and lived in the midst of public dissen- sions, as if their respective nations were at peace, " While " Charles VI. made great preparations at L'EcIuse, in order Vol. I. U 154 THE MARITIME L AAV Parti. Conduct of England towards France. 3 1 . Such maxims have not governed the conduct of the English. Their kings, their ministers, at all times, and even the people, when excited by them, have manifested a blind and implacable animosity against France, which more than once, according to the confession of that candid historian, David Hume, has hurried them into the most dangerous measures The English, every where, disseminating against France, gold and corruption, violating all laws, dis- regarding usages, the most sacred among polished nations, corrupting the commander and the soldier, encouraging treason, remunerating perfidy, and pen- sioning crime, have felt the importance of paralyzing the French marine,(15l) and of starving every coun- try whose inhabitants were nautical. Despairing of a conquest by arms, they purchased Toulon, that they " to have good fishing, the English, says Froissart, often went to " fisJi below Boulogne, and before the port of Visaut. — For fisher- " men (though there may be war between France and England) " never injure one another ; they remain friends, and assist each *' other, in case of need, and buy and sell their fish, whenever " one has a larger quantity than the other ; for if they were to " fight, we should have no fresh fish." Part 3. ch. 41. (151) This is the policy, with wliich England always com- mences war. " The successor the last war," says Mr. Adams, in the house of commons, the 15th March, I7S2, " was the " effect of a bold measure, adopted by tlie former administra- " tion, who, before war was declared against France, seized all " her merchant-ships, and by taking her seamen, rendered it '* impossible for her to equip her fleets ; a stroke from which tliat " kingdom did not recover, during tlie contir.uance of hostili- " ties." . Chap. L OF EUROPE. 155 Conduct of the English at Toulon. might deliver it to the flamcs.(152) They have sha- ken, in every place, the torch of discord, for the double, but cruel and insane purpose, of prolonging the delusion of rebellion, and of destroying the French mariners, whom they landed on the western coasts (132) Having been directed to set fire to the unfortunate city of Toulon, Sir Sidney Smith, in a letter, tlie eternal monument of barbarous perfidy, with a cool indifference, which makes one shudder, relates to Admiral Hood, his preparations, his care, and success in destroying the principal establishments in the place ; he expresses, at the same time, his cruel regret, that it was not in his power to exterminate the whole, by flames. In the follow- ing year, in the house of commons. Major Maitland accused ministers of having deceived the French, at Toulon, by promis- ing them the constitution of 1789, the enjoyment of which it was not in their power to secure to them ; of not saving the wretched and deluded inhabitants of the city, and of abandoning them to the resentment of the victors. " The proclamation of Admiral Hood," says he, " and his manifesto, replete with contradictions, were unworthy snares to entrap the French, and to put them in your power. It is thus, that by inspiring them with that courage, and that determined resolution, the elFects of which you have just experienced, you have brought upon Europe and England berselfi all the evils of a war, as thoughtless as it is unjust, as un- necessary in its origin, as it is injurious in its consequences.'' In the sittings of the house of commons, on the 21st January', 1794-, Mr. Fox observed, on this subject, "Every thing which has passed at Toulon, is scandalous and disgraceful to our arms and to the English name. I would wish the world not to believe that we took this city and its marine, under our protection, for the disgraceful purpose of seizing the first occasion to destroy them. I wish parliament to be informed by what authority Lord Hood guaranteed to Toulon the constitution of 1789, by virtue of which he has destroyed the ships he received as trustee ; and why, if he was autliorised to do so, the destruction was not complete." I 156 THE MARITIME LAW Part L Conduct of the English towards the French emigrants at Qiiiberon. of France, in order to produce a counter-revolution, thereby to keep alive a fire which might, one day, aid their entrance into the country.(153) In conse- quence of this system, they have kindled all the hor- rors of La Vendee. On the confines of the Deux- Sevres, on the borders of the Loire, and in the heart of Brittany, they have flattered the passions of the people. In the fertile plains of Normandy, and to the vicinity of Cherbourg, the object of perpetual alarm to English jealousy,( 154) they have nourished (153) When tlie emigrant officers of the French marine, disem- barked by the English at Quiberon, in order to produce a counter- revolution in La Vendee, were driven back by the republican army to the sea-shore, they had no resource but to seek their safety on board of the English squadron, which lay at anchor, within half- cannon shot. Instead of sending boats to receive them, and of protecting them, in their retreat, by their cannon, the squadron fired upon them, and cut them to pieces. More than two hun- dred of them perished in the sea, and the residue surrendered themselves prisoners. A foreign minister, speaking of this affair, |n presence of the English minister, and lamenting the fate of the unfortunate French marines who had perished, the latter re- plied, " without doubt we commiserate the dead, but on that day, " we obtained a naval victory over France, the consequences of " which will be more important than all the battles gained during " a century." (151-) " Shall I speak of the affair of Quiberon," said Mr. Sheridan, in (he house of commons, the 30th October, 1795, " an expedition which no man, who is not dead to feeling, can think of without indignation and horror ; an expedition atrocious and sanguinary, in which English blood has not flowed, but English honour has bled, at every pore ; fin abominable expedition, which will cover those who undertook il with eternal infamy and oppre- brium." Chap. I. OF EUROPE. 157 Speeches of Mr. Dundas, and Lord Loughborough. the hatred of the inliabitants. Such are the ends which the English government keeps constantly in view. Wc hear, Mr. Dundas, in the English parlia- ment, on the 25th March, 1801, while enumerating \ , the losses of France, formally declare, ** that the 1 " first principle of a war, whatever it may be, is the " destruction of the commerce and colonial posses- " sions of the enemy." Lord Loughborough, March 1791, in parliament, exclaimed, " the excessive " ambition and insolence which appeared in the *' councils of his majesty, have been carried to such " a pitch in every part of the world, that the ruin of " our empire will be the consequence. Like beasts " of prey, we roam through every region of the " globe in search of victims for destruction. It is with " astonishment and horror, that I see the system " of ministers, to oppress and destroy every other " nation : on one side, vexing, irritating, insulting, " on the other, directly and openly, exerting the " Quiberon, fatal expedition !" exclaimed Mr. Fox, in the same sittings " which must wound the soul of every man, and make the heart of every Englishman rise with indignation ! Sad reverse, which has done more injury to our national character, in tlie eyes of Europe, than any one event of the war ! Heaven is my witness, that I have always contended against this mad project." * " TIic above, and several other quotations, from the speeches of the Diembcrs of the British parliament, to be found in tliis article, .ire ti-ang- latetl from the French, as the originals were not witliin reach. It is very probable, tliat, in tlie double process they have unda'gone, the exaot \v«rfls •f tlie original have not been reproduced T. 158 THE MARITIME LAW Parti. Speech of the Marquis of Lansdown. — Pi'oposals of France. *' whole force of the state to crush and exterminate. " Can we expect that enlightened Europe will permit " us to pursue this career, and that the people will " bear the burdens with which they are loaded ?" Let the British ministers deeply reflect on what was said by the Marquis of Lansdown, in full parlia- ment, on the 2d November, 1797. " Above all," says he, " let them endeavour to regain for us the '* good opinion of Europe. Let them proclaim per- " feet liberty to all neutral nations, otherwise we " shall be compelled to the measure, and then it will *' be granted with an ill grace. The present is a fa- *' vourable time to conciliate. If we acknowledge "^ the commercial freedom of the world, we shall be " the first to profit by this magnanimous and gene- " rous system." 32. The constituent assembly of France propo- sed to the nations of Europe, the abolition of priva- teering, and the consequent restoration of the liberty of the sea. During the legislative assembly, the same measure was proposed to all the maritime states in which France had any diplomatic agents. Morality so pure, beneficence so decided, alarmed some pow- ers, who, under the influence of the British cabinet, remained silent ; a silence that amounted to a refusal of their concurrence. The answer of England was more formal. The ambassador of France, M. Chau- velin, wlio accompanied this proposition with a note. Chap. I. OF EUROPE. 159 Answer of England to the proposjJs of France. worthy of its object, (155) was repulsed, as if the de- struction of the English government had been in- tended. The opening of the Scheld was the real, though not more legitimate, motive for the rupture which followed. The French government did every thing in their power to prevent it. M. Marat, in 1793, had it in charge to attempt a reconciliation. His pacific mission produced no other effect, than to evince the desire of France to preserve peace with a nation that boasts of being free. In refusing to con- tinue at peace, the English minister had to stifle the vehement complaints of Sheridan, Gray and Fox ; and to be consistent with his usual policy, he propo- sed a vexatious bill, to compel all the French settled in England, on the faith of the treaty of commerce of 1786, to depart from the kingdom. (155) " To give to the navigation, maritime commerce, and " goods of individuals, the same protection and the same liberty, '•' which the law of nations, and the universal consent of the na- " tions of Europe, give to the intercourse and property ofindivid- " uals on land ; to suppress, in a word, that pernicious custom, " which on occasion of the quarrels of states and princes, interrupts " in every sea, the most necessary intercourse, defeats those specu- " lations, on which the existence of people, strangers to those " contests, often depends ; which suspends the progress of human " discoveries, which arms individuals against each other, delivers " the property of the peaceful merchant to pillage, and devotes " to death the navigator who attempts to defend it ; such is the " honourable object of the proposition of France to his Britannic " majesty." Thus did the minister Chauvelin, express himself, in a note addressed to Lord Grcnville, tlie C5lh |ulv, I'/ 93, on 160 THE MARITIME LAW Parti, Liberality of France. — Injustice and tjTanny of England. 33. The French republic, strong in the victories that have rendered it illustrious, more just and more moderate than England, caused to be inscrib- ed on the standards of the army of England, these remarkable words : Liberie des mers, paix au monde, egalite de droits pour toutes les nationsJ^ In this, there appears no national egotism, no commercial ambition, no maritime despotism. Its object was merely to pull down tyranny and pride. The naval despotism of England, on the contrary, has depriv- ed all nations of the possession of that commercial domain, which equal right, and the situation and resources peculiar to each, enabled them to cultivate. The spirit of the court of London, which forms a striking contrast to that of France, has, of late years, shewn itself in betraying its allies,(156) in pursuing, transmitting to him a m.inisterial dispatch, of the I5th June, relative to measures recommended to the maritime powers, for the pur- pose of abolishing the practice of privateering, [io Course en fner.] * Liberty of the seas, peace to the world, equal rights to all na- tions. In January, ISOl, some valuable books, magnificently bound, were presented to the royal society of London, from the institute of France. A letter of compliment, accompanied the present, signed, Bonaparte, President of the National Institute, end first Consul of France. On the letter was a finely executed vig-« nette, representing liberty sailing on the open ocean, in a shell, with the following motto : Liberie de nicr. [Annual Register, 1801.] T. (156) How has England respected her allies ? She has always made them victims ; she has placed them between two fires. When the army commanded by General Serrurier, in the year 1799, Chap. I. OF EUROPE. 161 Unjust conduct of tlie English towards neutrals. without exception, the navigators of all countries, in subjecting ships and cargoes to pillage, without hav- ing any personal or direct injury to avenge, which might serve as an excuse for their depredations. To attack neutral ships laden with goods, free and lawful in time of war, is an open violation of the absolute ma- ritime law, by virtue of which nations are permitted to maintain intercourse with each other. To seize vessels, destined to draw together distant regions, and to distribute the harvests between peaceful countries, remote from each other, and who take no part in the disputes of the belligerents, is a faithless derelic- tion of the general cause of freedom. If Montesquieu, so esteemed by the English, had lived long enough to witness these proceedings, would he have said of that nation, " The great charter of England forbids " the seizing and confiscating, in case of war, the ef- " fects of foreign merchants, except by way of re- marched into Tuscanj, in order to drive the English and Nea- pohtans out of Leghorn, t!ie English, who had transported Nea- pohtan troops into this dutchy for their own benefit, when it be- came necessary to evacuate Leghorn, were wholly occupied in loading their vessels with the goods and eflVcts belonging to the merchants of their own nation. They refused to take off the Neapolitan garrison, who were obliged to embark in neutral ships. In the same year, when, tiie army under the command of General Brune, compelled (he English, at the Hclder, to re- treat with disgrace, the thunder of their artillery and infantry was turned against the Russian troops, to oblige them to sustain, a little longer, the shock of the French ; tliis gave the English time to re-em- baik their own men, and the Russians were made prisoners of war. Vol. I. X 162 THE MARITIME LAW I>art L The English dread being attacked at home. ",prisa]s. It is pleasing to see a nation make this " one of the articles of her liberty. "(157) It is not by these great principles that the character of this nation is to be decided. Much less are we to judge of her by the flattering picture drawn by a French- man, on whom she had conferred the most public and distinguished marks of esteem. 34. Neither the boldness with which the English enter on the commencement of every war, nor even the successes which they know^ how to secure, by means of which they alone are capable, have de- stroyed that profound sense of their own weakness which is felt, whenever they are attacked at home. The French marine, such as it was at the beginning of the revolution, appeared to the English too form- idable a means to support a descent, the success of which would have decided the fate of England. The ignorance that guided most of the enterprizes of the executive directory, was the cause of its failure -, but England experienced all the dread of invasion, and the strong impression it produced still re- mains. (158) This object, become more difficult of (157) Montesquieu, Esprit desLoix,liv. 20, cli.13. " La grande " charte defend de saiser at de confisquer en cas de guerre, les " merchandises des negocians etrangers, a moins que ce ne soit " par represailles. II est beau que la nation ait fait de cela un des " articles de sa liberty." (158) In the year 1797, fourteen vessels anchorediii Bantry Bay. Sixteen thousand brave Frenchmen waited for the intrepid General Hoche, in order to land, but the frigate which carried him did not Chap. I. OF EUROPE. 163 Fear and weakness, make England unjust and rapacious. execution, renders the English insolent and unjust ; the fear it excites is considerate, calculating on the necessity which impels the weakest to seize every advantage afforded by the negligence or security of the strongest. It is precisely from her inability to contend, that England fights. She is, at the present day, in the same situation with the Roman empire, at the period of its decline. It can neither exist with, nor without, soldiers. When evils have taken such deep root in the body of the state, can we expect any thing but a course of conduct, inconsiderate and arrogant, towards the rest of the world, while it pro- duces its own ruin, misery and dishonour? Every act of injustice contains within itself, a principle of de- .struction, that will eventually subvert the edifice, which such action was intended to support. 35. The continental powers, too long the hired satellites, and blind champions of their enemy, en- iightened at length by their losses, are now sensi- ble, that they ought to separate their cause from that of England ; that it is time for them to put an end to those odious and bloody contests, in which men and territories are put at stake, but from which England derives the whole benefit, in the increase of her riches, reach Ireland. Had it nof. been for (.his secret cause, that prevent- ed the arrival of Hochc, the world would have been in peace, and governments tranquil. TJie attempt made in the year I79S, upon Ireland, where 1050 Frenchmen spread terror into the lieart of Great Britain, shows what Hochc v.ould have done, had he land- ed the year before. 164 THE MARITIME LAW Part I. General peace received witli entliusiasm by tlie English. and the extension of her commerce. Abandoned by all the coalesced powers, who had, separately, made peace, England appeared, at last, desirous of a cessation of hostilities. The French government ac- ceded to the proposal with a good grace. After a long and painful negotiation, the able plenipotentia- ry at Luneville, Joseph Bonaparte, had the honour to complete, by the treaty of Amiens, on the 25th March, 1802, the great work of a general pacifica- tion, which was received at London, and through- out England, with an extraordinary enthusiasm that evinced its necessity. The same enthusiasm, the same transports of the people, were manifested on the arrival of the French ambassador, general An- dreossi ; these emotions were succeeded by sadness and dejection, when, at his departure, he carried with him the regrets of all who knew him,(159) 36. France, strong in its good faith, lived in secu- rity, in the midst of that peace, which, at Amiens, it had sworn to observe, while new plots were forming in England to violate this solemn treaty, which had restored tranquillity to Europe. The British min- ister reckoned less on the success of the English arm.s, on the number of their ships, and the courage of their soldiers, than upon the advantages of machinations, (159) It 3 3 with pleasure that I here repeat the name of General Andreossi, my iearned friend, who acquitted himself of this import- ant mission with that amiableness and prudence, which characterize ^d distinguish him, on every Qccasiop. Chap. I. OF EUROPE. 16:; England attempts to destroy the treaty of Amiens. upon the vioiation of the laws of nature and nations, and on the corrupting influence of liis gold. He wisli- ed for war, that it might furnish him with a pretext for overthrowing a government, which he dreaded to see consolidated in the hands of a great man. He attempted to attain his purpose by deceitful nego- tiation. In spite of the painful state, produced by such a negotiation, which, at its commencement, ex- hibited the most characteristic bad faith, the first consul continued to employ every means to preserve peace ; by oflkial notes, replete with wisdom and moderation, he did every thing, morally possible, to reconcile the two governments, and to place them in a situation, in which it might be easier to nego- tiate, and on terms less inadmissible. He could not, however, succeed in producing the same moderation in the English minister, who, long accustomed to the violation of treaties, was willing to add this new in- fraction to many others, of which he may be ac- cused. Hence, those suspicions and precautions be- fore the execution of the treaty of Amiens ; hence, the delay of the evacuation of Malta, of the Cape of Good Hope, and of Alexandria, the possession of which had been weighed in the scale of interest, and not according to the tenor of solemn engagements ; hence, that contempt of the law of nations, those plots laid in England against the tranquillity of France, those defamatorv libels acjainst the person of the first magistrate of the republic, (160) and the asy- (160) Kit is right for England to give tlie greatest latiliide to (he libcrly of l!ic press, it is also the public right of all polished nation?^ 166 THE MARITIME LAW Part I. Speech of Mr. Fox. — Libels on Bonaparte. lum and protection granted to men, who were point- ed out by the French government, as dangerous to its peace. 37. This is not a gratuitous assertion. Mr. Fox has furnished convincing proof of its truth, in his speech in the house of commons, on the 24th No- vember, 1803, in which he said, "that a journal " printed at London, provoked the assassination of ** the persons who governed in France ; that the bar- '' barous Hbels, within, as well as without, the house , " are directed against the French government;" and at what time ? the same orator asks, " at a mo- " ment, when the representative of our sovereign " is, perhaps, presented, with the usual ceremonies " to the first consul, is it decent, is it honourable, " for the members to load with opprobrious epithets, " the person, who is at the head of the French gov- " ernment?" Can there be any doubt on this subject, when the king of England himself, by his ambassador at Paris, in the face of astonished Eu- rope, declared, that provided the sovereignty of Mal- ta was granted to him, he would promise to take and the strict duty of the government, to prevent, to repress, and punish all attacks which may be made, by this means, on the rights, the interests, and honour of foreign princes. In the house of lords, on the 20th December, 1792, Lord Lauder- dale, reproaching ministers for their manoeuvres to render popular the war against France, exclaims, " One of the most powerful of " these arts, is those atrocious libels against the French, the absurd- " ity of which is equal to their perfidy." Chop. I. OF EUROPE. 167 Inconsistency and perfidy of the English ministiy. measures, that the men, who, in different parts of his kingdom, were hatching plots against France, should be effectually repressed r( 161) Could this new pro- mise be more sacred, than that contained in the trea- ty of Amiens ?( 1 62) The engagements, then, of a so- lemn treaty, are not sufficient ; the island of Malta must be given to the English government, to induce them to do, what integrity demanded from one pow- er towards a to execute ! er towards another, and what George III. had sworn 38. It must be acknowledged, that this conduct dis- covers an inconceivable absence of mind in the minis- ters of the English cabinet. It is no less astonishing, than their notification of the suspension of the gua- rantee, promised by the emperor of Russia j a no- tification contradicted, at the very time, by a for- mal letter from that sovereign. (163) It is in conse- (161) The king of England acknowledged, their existence, since the peace of Amiens ; and avowed, that even during peace, these dangerous and notorious men, were supported and protected bv the British government. (IG2) The text of the 5th article of the treaty of Amiens, is as follows : " The contracting parties, shall use their utmost efforts " to preserve a perfect harmony between their respective coun- " tries, without permitting any act of hostihty whatever, by " sea or by land, for any cause, or under any pretext. They shall " carefully avoid every thing which might, for the future, disturb " the happy union now reestablished between them ; and shall not " give any succour or protection, directly or indirectly, to those " who would wish to injure any of them." (163) The day on which the English ambassador. Lord Whit- \ orth, ofticially announced the refusal of Russia, a courier from 168 THE MARITIME LAW Part L Irresolution and inconsistency of the English cabinet. quence, no doubt, of a similar distraction in the Eng- lish cabinet, that we hear it complain of delays in a ne- gotiation that had not yet commenced ; that it has made formidable preparations to resist armaments, not in existence; that, while it evacuated Egypt, it refused to restore the Cape of Good Hope to the Dutch ; that it afterwards promised to evacuate the Cape of Good Hope, but refused to give up Malta ; that it retract- ed that promise, and then retracted its retractation ; that it proposed the independence of Malta, and de- manded its possession; desisted from that demand, and demanded it again, until it could occupy the island of Lampedosa, as a military post; at the same time, that by a secret article, the chief consul was to engage not to require the evacuation of Malta, before the end of ten years. As the last result of all this pue- rile irresolution, and these extraordinary demands, disdaining, for once, all those pretexts under which governments often veil their shame, the king of En- gland keeps Malta,(164) and declares war against Petersburgh arrived from Paris, by -whom Alexander renewed liis guarantee, and offered his mediation, if the two powers wished to have recourse to it. The English ambassador was instantly in- formed, by the minister of foreign relations, M. Talleyrand, of this new accession of Russia, to the guarantee of the island of Malta, and he made no other reply, than to declare that he had received an order to leave France in 06 hours. O viores! (164-) Among the traits of English policy, the speech delivered by Mr. Dundas, in parliament, the 23d May, 1803, is not the least remarkable. " In whatever point of view Malta is consid- " ered, we shall see that it is of the highest importance to us. ♦* I maintain that this island cannot be restored again to the order Chap. I. OF EUROPE. 1G9 Intrigues of the English to keep possession of MiUta. k France, because she will not dishonour herself by tearing out, with her own hand, one of the most im- portant pages in the act of pacification. Could the hand which has guided the victorious armies of France, which has signed its treaties and its laws, reestablished peace in the interior, and restored the altars of religion, sign a secret and disgraceful agreement, which England attempted by menaces, to extort. (165) It must, then, be confessed, that when the English government concluded this peace, " of St. John of Jerusalem ; that we ought to keep it for ourselves, "■ that we ought to keep it, not only during the war, hui forever. " The war is undertaken for Malta, and Malta ought, henceforth, " to belonjr to us in full right." Why docs England attach so much importance (o the possession of Malta ? Because she wishes to establish there a Levant Com- pany. Malta will be the Bombay of this company : the Puchas, or Beys of Egypt, Tripoli, Tunis, and Candia, of the Morea, Albania, Syria, Smyrna, &c. &c. will be the Nabobs. They will exrite them to revolt against the Ottoman Porte, which will figuie like the court of Delhi. They will have agents near all these Pa- chas and Beys ; they will send some of them to Malta. They will scatter their gold with profusion, and pay liberally for all at- tacks they can excite against French commerce. Thus they will succeed in excluding France, Spain, Trieste, Leghorn, and Genoa, from all trade in the Levant, and will soon be hoard to say, that the navigation in those parts, is a prerogative of the British crown. Thus, with a simple garrison, and a series of vile intrigues, England will expel all Europe from the commerce of the Black sea, and the shores of the Levant. (165) Secret article. " His majesty, the king of England, " shall not be requested, by the French governm and 2, et disc. 17+, n, 12, et sequent, D'Habreu, sobre las presas, oap.5, n.2. 198 THE MARITIME LAW Parti. Grant of James, king of Arragon. — Opinion of Valln. " Assignamus, damus et limitamus perpetuo cas- " tro jam dicto Calaris, videlicet, versus villam De- " cimi usque ad villam ipsam Decimi exclusive, in- " elusive vero damus dicto castro pro termino loca " vel villas, quae sequuntur, videlicet, Sancta Gilla " Pirri, Sovetano, Pauli Palma, Selargio, Quarto, " Toto Quarto Jossu, Quarto Bonino Cepolla, cum " capite de S. Ella ; nee non terminos eorumdem lo- " corum, et etiam castrum et villam de Bonarice et " alia castra loca, et casalia, infra hos limites consti- " tuta, et intiis mare centum milHan'a ; salvo tamen " et nobis, et nostris semper, et in omnibus retento ** jure portus et aliarum nostrarum." 7. Valin, in his commentary on the marine ordi- nance of France, of 1681, lib. 5, tit. 1, combats the last opinion ; and, in order to fix the extent of the sea, which ought to be subject to the dominion of the proprietor of the adjacent shore, he proposes to try the sounding lead, by means of which a precise limit may be assigned to the territorial sea, at the place where the lead will no longer reach the bottom. But Valin admits the insufficiency of this mode, in the case where the coast is so steep, that soundings can- not be found at, or near the land. In such a case, he wishes the extent of maritime jurisdiction to be lim- ited by the reach of a cannon-shot, and not further. *' For in short," he observes, " the ocean belongs to " no one, and the conclusion naturally to be drawn *' from this isj that all nations are permitted to navi- *' gate it ; so that one nation cannot deprive another Cluq). 11. OF EUROPE. ic)C) Opinion of Valin as to the extent of maritime jurisdiction. " of this liberty, without injustice, and without a " boundless, and even extravagant ambition."* 8. What has just been cited from Valin, ought to be regarded as the mere observation of the author, who acknowledging the necessity of fixing the pre- cise limits of maritime sovereignty, determines to adopt the distance, established by different treaties of peace and commerce, of two leagues from the coast ; so that beyond that distance, navigation ought to be free, and exempted from all visits of revenue officers, or guar da-cos (as ; and within which dis- tance, every ship may be considered as liable to the suspicion of illicit trade, and, consequently, subject to visitation and search, and the goods to forfeiture, if the captain does not prove that he has been com- pelled, by foul weather, to approach so near the coast. He, at the same time, considers, that this rule does not prevent the sovereignty of the sea, nor the jurisdiction and right of fishing, from extending be- yond two leagues, either by virtue of treaties of navi- gation, or in pursuance of the rule he has pointed out, the extent of soundings, or the reach of cannon- shot ; a rule, which should have been acknowledged by all the world, if we must believe the journal of commerce, of the month of May, 1759 ; but this as- sertion, he adds, is contrary to truth and fact. 9. HuBNER, in his treatise dc la saisie des batimens neiitres^ torn. 1, ch. 8, § 10, does not speak so posi- • Sec also, Piiftcnclorr, /?/9 A'a/. et Gent. lib. -I-, cap, .5. § 9....T. 200 THE MARITIME LAW Part I. Opinions of Hubner, Vattel, and Bpikerslioek. tively on the subject. He confesses how difficult it is to fix, with precision, the extent of the maritime jurisdiction of the nation possessing the coasts ; he thinks the limit ought to be, at least, equal to the reach ofacannon-shot, in order more effectually to announce to transgressors, their infraction of this boundary. 10. Vattel, in his work, du Droit des Gens, Yiv. 1, ch. 23, § 289, is of the same opinion. He observes that, at the present day, all that part of the sea which is within cannon-shot of the coast, is considered as making part of the territory. * 11. Bynkershoek, in his dissertation, de domi- nio maris, is of opinion, that the dominion of the adjacent sea, extends as far as possession can be held from the main land ; and that all that portion of the sea which he can defend and protect, is subject to him, even when it is not frequented by his own navigators. (202) This author, pursu- ant to this principle, adds, that the defence of ter- ritory consists in the force of arm.s, and that, as of all arms, cannon can carry the action of its force to * The jurisdiction of the District Courts of the United States, in cases of capture, extends to a marine league from the coast. See Laws of the U. 8. vol. Ill, p. 9 1 T. (202) Ch. 2, § 3. Existimem itaque eo usque possessionem maris proximi videri porri^endam quousque continenti potest haberi subdi- tum : eo quippe mode quamvls non perpetiio naxi^etiir, rectc tamen defenditur et servatiir possessiojure quasita. Chap. II. OF EUROPE. 201 Opinion of Suipi, an to tlie extent of the teiTitorial sea. a greater distance, the possession of the sea ought to extend to the reach of a cannon-shot, fired from the shore. (203) 12. Sarpi, in his work entitled, 'Z)d'/ {fo??^//;/^) del jnaj'c Adriatico, in examining the opinions of lawyers, as to the extent of that part of the sea, which may be- long to each city, situated on the shore, gives his own opinion, in the following terms. " This extent is *' equal to what may be wanted by a state for its " own use, without injury to its neighbours. Thus, " a large maritime city, possessing a large extent of " territory, from which it draws its subsistence, will " have but few citizens desirous of following the oc- " cupation of fishing, and will make but little use of *' the sea. On the contrary, a small city, possessing " only a very narrow territory, and deriving its sub- " sistence from fishing, will have need of a large " extent of sea. This is what lawyers meant, " when they fixed the extent of the sovereignty of *' the sea, at a hundred miles from the shore ; it is " using a round, or determinate number, for an ar- '' bitrary and uncertain number; as much as to say, " thatciticshave the dominion of so much of the sea, " as is necessary for their wants, without impairing " the right of others, though it should extend to the " distance of one hundred miles. "(20 1) It appears (203) § 5. Ibid. Quare omnino videlur rectius co poiestatein terra: extendi, quousque tormenia exploduntur ; catenus quippe cum imperare, turn possidere videmiir. (20 V) Ella i^ lanfo grancle, qnaiito piio adoperare in suo uso senza injuria dc'vicini j perchc una grande citta sul mare, la quale Vol. I. Cc 202 THE MARITIME LAW Part I. Empire ofVenice over the Adriatic. — Empire of England over the four seas. almost certain, that from the time of Sarpi, the em- pire of the Adriatic sea, belonged to Venice, in those parts of it, at least, in which she was able to af- ford protection, and to make her dominion respect- ed ; but it is very doubtful whether other powers are at all disposed to acknowledge, at the present day, this absolute sovereignty, over the whole extent of the Adriatic^ as claimed by the ancient republic. Such a pretended empire is respected, as long as the nation claiming it, is in a situation to maintain it by force , but it falls with its power. 13. The naval strength of England enabled its sovereigns to assume the empire of the seas, by which their island is surrounded, as far as the op- posite shores of the continent of Europe, though not proprietors of them. Selden pretends, that in the time of Edward I. this maritime empire of Eng- land, was recognised by a great part of the nations of Europe .;(205) the republic of the seven United ahbondi Ji sili terrestri, dove cavi il suo vitto, avra pochi, die vogiiar.o tare il mestiere di pescatore, e si valeia di poco mare, A! coiitrario una piccola citta, con poco di commdita in terra, at- tendera a cavar il vitto dal mare, e si valera di gran-parte di esse ^ e non aUrimenci hanno volute intendere i guireconsuiti del cento miglia, ponendo un nuinero determinate per un incerto : cioe le citta sono padrone di tanta parte di mare, di qu^inta hanne bisogn© di valersi senza ingiuria d'altri, se fossero ben cento miglia. Sarpi. Dom. del. mar.Adri. scrittura. 3. (205) Selden, Mare Claumm lib. 2, cap. 27, and see ante eh. I , article v. § 10, where this fact is controverted. [See also the note of the translator, ib. page 128.] Chap. II. OF EUROPE. 203 Dutch agree to salute tlie English flag. — Contrary conduct of France. Provinces, in some degree, acknowledged it, by the treaty of Breda, in 1667, at least, as to the honours of the flag;(206) but the express, or tacit consent of all the powers interested, is necessary to establish such a right on a solid basis ; and so far is England from having any thing of this kind to offer, that it has been proved, on the contrary, that this consent has never been given on the part of France, who would not countenance such a pretension of Great Britain. Louis XIV. would not allow, that the channel should be called in the same treaty of Breda, either the En- glish channel, or British sea. (207.) The pride of the English must have been humbled by this conduct; but it was not a time to despise the marine of France. (206) There is another treaty concluded between the i?ame pow- cr*, in 1()74-, in which, England, by the ilh article, fixes thelimits, within which the salutation of her flag, by the United Provinces, is required ; they extend, from cape Finisterre, in Gallicia, to the centre of Stadland, or the promontory of Slat in Norway. Vide Dumont, Corp. Diplomatique, torn. 7, part, 1, page 263. (207) One of the most celebrated of the English historians, Da^ rid Hume, confirms this maxim, in the first volume of his work, entitled The Historic of Great Britain. " They (the Dutch) openly " denied, however, the claim of dominion in the seas beyond the " friths, bays and shores ; and it may be questioned, whether the " laws of nations, warrant any further pretensions.''* • These are the words used by Hume, in mentioning tlie attack made hy tlie British fleet, imdcr tlie Earl of Northumba-land, on tlic Dutch herring-bussw, in tlie yew 16J6. S«e his Historj-, vol vi. ch. 52 T- v 204 THE MARITIME LAW Pari I. The opinion of Galllani, is the most reasonable. Louis XIV. made his flag respected in every sea^, and, sometimes, with too much severity.(208) 14. In this conflict of opposite opinions, I adopt that of Galliani, before hinted at by Hubner and Vat- tel, and more positively expressed by Bynkershoek. It is the only one which appears to be equitable, and adapted to the nature of things. In my view, it is the most just, and the only mean that can serve as a rule, to fix the extent of the territorial sea, al- ways contested, and not yet decided, or, at least, not established as it ought to be, on the basis of a solemn treaty between maritime powers. Until they shall enter into a public convention on the subject, every- thing must depend on arbitrary usage ; and the strong- est will give law to the weakest. 15. The most certain mode of fixing the extent of the territorial sea, adjacent to coasts not curved, is to hmit it to the space passed over by a ball, shot from a cannon, or^at the point, at which a bomb, thrown from a "mortar, placed on the shore, may strike a vessel. This opinion appears conformable to the principles of universal law, by which all that ■ J * — •^— ————— — —«———.— ^—^____^._ (208) The Spanish vice-admiral, Papachin, having refused to lower his flag, on meeting with the French squadron, was forced, after a bloody engagement, to capitulate. He, then, asked, what they wanted of him; Tourville, who commanded the French ships answered, " nothing but the salute," — to which the Spaniard re- phed, " Was it necessary to shed so much blood for that." — Grif- fet. Journ. histor, du regne de Louis XIV. page2Sl. Chap. 11. OF EUROPE. 205 The extent of tl)e territorial sea should be fixed at three miles. space is considered as territory, over which officers and magistrates can cause the orders of their government to be executed,{209) either by fear, or by the force confided to them. It would be reasonable, then, in my opinion, without inquiring whether the nation, in possession of the territory, has a castle, or battery, erected in the open sea, to determine, definitively, that the jurisdiction of the territorial sea shall ex- tend no farther than three miles from the land, which is, without dispute, the greatest distance to which the force of gunpowder can carry a ball, or bomb. 16. The anonymous author of the poem, Del Dl- ritio della Natura, lib. 5, expresses this idea in the following lines : Tanta s'ainnza in mar qucsto dominio, Quant'' esser pub d'antctnurale e guardia, Findore pub da terra in mar vibrundosi Correr di cavo bronzo accesso fulmine. Far as the sovereign can defend his sway. Extends his empire o'er the watVy way ; The shot sent thundering to tiie liquid plain^ Assigns the limits of his just domain. (209) Digest, lib. 50, tit. 16, 1. 239, § 3, De verb, signif. Terri- ioriitm est unixer situs agrorum intra fines ciijusque ciritatis ; quod ab €0 dictum quidarn aiunt, quod magistratus ejus loci, infra eos fines terrendi, id est, submovendij'us luibet. Bynkershoek, De Dom. mar. cap. 2, § 3 e< 5, mentions an order given by the states-general, in 1671, to the commanders of ships, to salute, as they passed near places belonging to foreign princes, whenever they came within cannon-shot. 206 THE MARITIME LAW Part I. Rule adopted in several treaties ; — modified in certain cases. Tliis distance is the one adopted by the empress of Russia, in the 2d article of her instructions to her cruisers, of the 13th December, 1787 ; by the grand duke of Tuscany, Pierre Leopold, in his regulation of the 1st iVugust, 1778, article 1; by the republic of Genoa, in its manifesto of the 1st July, 1779, article 1, and by the republic of Venice, in its mani- festo of the 9th September, 1779, art. 9. 17. It is already established among polished nations, that in places where the land, by its curve, forms a bay or a gulf, we must suppose a line to be drawn from one point of the ihclosing land to the other, or along the small islands which extend beyond the head-lands of the bay, and that the whole of this bay, or gulf, is to be considered as territorial sea ^ even though the centre may be, in some places, at a great- er distance than three miles from either shore. 18. Notwithstanding the conformity of this doctrine, with the rules derived from the domain of the sove- reign of the main land, it appears to me, that it may be admitted as a principle, that when the question arises, as to the exercise of this right over the territo- rial sea, for the purpose of establishing imposts, or restraining the freedom of passage, in regard to foreign vessels, and to subject them to the visits of revenue officers, that then, it being a question re- lating to the execution of rigid laws, it should be agreed, for the benefit of commerce, to contract the extent of this sovereignty j but if, on the other hand. Chap. II. OF EUROPE. 207 Extent of territorial sea, enlarged in favour of neutrals. a neutral power claims it, in order to obtain an asy- lum against hostilities, and against the respective cruisers of belligerents, it should then be regarded as a beneficial right, that ought to be favoured, and to which the greatest extension should be given. Jn this case, in which humanity calls for the utmost in- dulgence of the laws, in my opinion, the territorial sea ought to be extended, not only to three miles, as above stated, but to the distance of two leagues, as has been practised by some of the powers of Europe. Tiiis example of natural equity and moderation, has been taken tor the basis of the treaty concluded in 1740, between the Porte and the king of Naples. It is there agreed, art. 16, that in all places belonging to either sovereign, to the distance at which ships may be discovered, and from which ships may dis- cern the land,* neither party will permit vessels to be pursued or molested. May the more powerful and enlightened nations of Europe, one day adopt, for the good of mankind, so excellent a maxim, in time of war! (2 10) * The ordinary extent of vision, must be here understood as a mean only of fixing on some certain distance, as ten or twenty miles ; otherwise, the rule, as B) nkershoek observes, (Dc Dom. mar, cap. 1 1) would be too variable : For some men can discern objects at a greater distance tban others, and much will depend on Uie po- sition of the spectator T. (210) M. Boucher, professor of commercial and maritime law, in the academy of legislation at Paris, in adopting this opinion, in his InslitiUes of maritime law, adds, very properly, at tlie end of the third chapter ; " But, as in such case, every thing is to be " strictly decided, in determining this space by miles, as manv J08 THE MARITIME LAW t'art J. Disputes among Publicists, as to the extent of tlie empire of the sea. ARTICLE III. Of the opinions of Publicists, as to the extent of the em- pi j^e of the Sea. § 1 . THE question concerning the empire of the sea, has been warmly debated, ever since the modern nations of Europe began to visit foreign seas, and to make discoveries in every ocean. Most of the wri- ters who have treated of this subject, have taken up the pen, merely to defend the interests of their respec- tive countries ; but transported by their zeal, it has become the apple of discord, and has led them to em- brace different systems. Thus, among those nations, who appeared already possessed of the dominion of the sea, their writers contended for this empire with the greatest animosity. 2. Notwithstanding the solidity of the principles of universal reason, exhibited in the preceding pages, some celebrated controversies arose, at the beginning of the 17th century, concerning the empire of the sea. The leaders in these disputes, became divided into two opposite parties, the one maintaining the absolute liberty of the sea; the other contending that it might be subjected to the dominion of a particular nation. " different calculations are given, as there are different states, " who, for the most part, have not the same certain measure. In " this case, nations ought to decide, by mutual consent, on the " immunity of their respective coasts, according to an invariable *' standard; and the most exact one, is without doubt, that of the " quarter of the meridian, adopted by the French." Chap. 11. OF EUROPE. 209 Grotius's work, Mare Libeium. 3. At the head of the first party, appeared Hugo GROTius,orVanGroot.(211) Republished, in 1609, a work, entitled, Mare liberuniy she dejure, quod Ba- iaviscompelit ad Indiana commcrcid. He had before written on the dominion of the sea, of shores, rivers, rocks, lakes, and had treated of some other questions on this subject, in the second book of his immor- tal work, Dc Jure Belli ac Paci*. This celebra- ted publicist, founded his opinion on principles and reasons which, though not generally adopted by his commentators, have the merit of originality, and are drawn from the human heart. Born in a repub- lic, thaj: sprung, as it were, from the ocean, from which it derived its greatness, this illustrious writer, in the work just cited, has considered the subject in the most extensive manner. \ He has undertaken to prove, that neither Holland, nor any other nation, can be excluded from the nav- igation of the ocean, and from trading to the Indies ; notwithstanding the claims of the Spaniards and Por- tuguese, who, relying on the donations of the popes, Alexander VI. and Nicholas V. and on prescrip- (21 1) Hugo Grotius, was born at Delft, in Holland, the lOth April, 1533. He went to France, for the first time, with Olden- Barneveldt, ambassador of the states-general, in 159S. At the age of 21- years, he was made advocate-general, and in 1713, pen- sioner of Rotterdam, and deputy from that city, to the states of Holland, and West-Frie.dand. His connexion with the respecta- ble Barnevcldt, excited bitter persecutions against him. He died the 28th August, I6t5, at 63 years of age. Vol. I. D d 210 THE MARITIME LAW Part I Powerful arguments of Grotius.— John Selden. tion, and usage, were determined to have the exclu- sive right of navigating the seas of Gu'nt^a, and of the Indies. Grotius begins, by inquiring, whether the sea is, in its nature, susceptible of sovereignty, and, transported by his patriotism, he maintains the negative. He supports his opinion, with great ener- gy, and by very ingenious arguments, and he con- cludes, that it is contrary to every principle of justice and equity, to prohibit commerce, and that, at all times, in peace and war, and during a truce, the Dutch ought to enjoy the liberty of trading to the In- dies. Strong in the principles displayed by this au- thor, the Dutch asserted the freedom of navigation, and, that, consequently, it was lawful for them to fish in the English seas.(212) 4. John Selden,{213) an Englishman, put him- self at the head of the opposite party. This learn- ed lawyer, one of the most judicious writers of the 17th century, was regarded by Grotius himself, as an (212) Grotius was followed by other publicists, who, success- ively wrote, in tavour oF the liberty of the sea, on the principles he had established. The following are their names, and the titles of their works : Marcus Zuerius Boxornii, Apologia pro navigation- ibus HoUaiidorum adversifi Fontiim Hentermn. — Theodori Graveri Anjsterlodamenis, Disseriatio de tuan natura libera, pactis clause. Joan. Groeningii, Naviiiatto libera. Joaun. Jsaaci Pontani, Dis- cussionum histpricarum dc mare libera adversus Joannis Seldini mare ckusum. (213) John Selden, was born at Salvington, in the county of Sussex, the 16th December, 1584-, and died at London, the SOih November, 1S54-. Chap. I L OF EUROPE. " 211 Seldcn's Mare Clausum. — Partisans of Seldcn. honour to his country. He explained his opinions, in 1636, in his work, entitled, Mare Clausum^ sen de dominio maris. [2\^) The English king was so satis- fied with it, that by a decree of his council, he order- ed a copy of it to be deposited in the archives of the tower; another copy in the exchequer, and a third in the court of admiralty, as a deposit of the most au- thentic proofs, and the most convincing arguments in support of the peculiar right of England over the British ocean. 5. This dispute was rendered famous by the ce- lebrity of the men who took part in the controversy. Selden soon had for his partisans, Paul Sarpi,* Puf- fendorf,f Wolfius,J, and Heineccius.|| This war of (214) Moreri is strangely mistaken, in saying, in his Dictionary, that Grotius composed iiis work, merely to refute the Mure ClaU' sujH ofSeiden. The fact is precisely the reverse, as appears from the priority of the work of Grotius, in which not a word is said of Selden, while the latter, in his work, makes a direct attack on Grotius. * Peter Paul Sarpi, was born at Venice, in 1.552, and died in 1653. He was a man ol genius, and possessed various and exten- sive learning. His works were printed at Venice, in 1677, in six vols. 12mo T. t Samuel Puffendorf, was born 1631, at Fletch, a small town in the Margravate of Misnia, in the Electorate of Saxony. He was governor to the son of the Swedish ambassador, at Copen- hagen, and when the ^^'ar broke out between Denmark and Swe- den, he was detained a prisoner for eight months, during which time, he studied Grotius and Hobbes. Charles XI, kingofSwe- 212 THE MARITIME LAAV Part /. Arguments of Selden. pens, soon gave place to that of arms. Selden, whom Grotius called Thalassocratkus, or ruler of the sea, maintained, that the empire of the British seas, be- longed to the crown of England. His arguments are drawn from the holy scriptures, from the history of the most illustrious nations who had held the empire of the sea, from some parts of the sea being already, in fact, occupied, from prescription, from the com- mon law of England, and its ancient titles, from treaties, in which other powers had acknowledged this dominion, from possession, and the uninterrupted exercise of her right, and, finally, from the example of other governments. 6. These arguments are contained in two books. In the first, he endeavours to prove, that the sea is not, by the law of nature and nations, common to all den, appointed him professor of law, and historiographer, and conferred on him the title of Baron. He died at Berlin, in 1694'. The best edition of his great work, on the lav) of nature, and na- tions, is that of Barbeyrac, with his learned preface and notes, which was translated into English by Basil Kennet, £th edition, folio, London, 1749 T. t John Wolfius, the son of a brewer, was born in 1679, at Breslau, the chief city of Silesia. He was appointed professor of law, in the celebrated university of Halle. His works are very voluminous; but possess great merit, though many of them are written in barbarous latin. He died in 1754 T. II John Gotleib Heincccius, was born iii 1618, at Eisenberg, in the Electorate of Treves. He was professor of law, in the uni- versity of Halle. His works were printed at Geneva, in \lAi\, in 8 vols. 410. and are deservedly held in high eslimati«n T. Chap. 11. OF EUROPE. 213 Respective merits of Sclden and Grotitis. mankind ; but, on the contrary, is susceptible of be- coming the domain and property of a particular na- tion ; in the second, that the king of England is ab- solute master of the British ocean, and that, conse- quently, the English have an exclusive property in the fisheries in that sea.(215) 7. These two celebrated publicists, impelled by the interests of their respective countries, and by the glory of being leaders of literary factions, so entan- gled the subject, by their passionate opinions, that instead of elucidating and deciding the question, they involved it, by their useless learning, and equi- vocal arguments, in greater obscurity. Posterity has decided, that Grotius maintained a good cause badly, and that Selden defended a very bad cause well.* (215) Seidell had, besides, for his partisans, the following wri- ters : Conringii, Dissertatio de imperio maris. A dissertation by* the same author, or according to some, hy John Wtrlhnsius, Demar- itimis commerciis. Cunr : Sam. Schurzfleischii, Dissert, maris servilus. Joannis Strauchii, Dissert : de imperio inaris. Christ. Roehrensee, De jure circa aqiuas mujegtatico. Thomce Rivii, Ilis- ioria navalis vxtdia. Seraphin de Fretas, a Portuguese, followed the steps of Selden, and published against Grotius, a work entitled, De iusto imperio Liisitanorum Asiuiico adversus Grotii Mare Lib- ermn. ■*• The learned and judicious Bynkershoek, does justice to the profound erudition ot Selden, but denies the force of his reasoning. " Non est, cur Scldeno invidiainus splendida tcsiiinonia, quibus Hie " adtuendum Centis sua' i^lorium lon^e tatcque .luperbit ; apparatum " erudilionis agnosco in^eniem, vim probandi nonaque." De Dora- inio rcaris dissertatio, cap. v T. 214 THE MARITIME LAW Parti. Works of Pontanus and Pacius. 8. Isaac Pontanus,* historian to the king of Den- mark, in his Historical Discussions, is opposed, in many respects, to the opinion of Selden : he inquired, what is meant by a sea, free, or not free, open or in- closed, and how it ought to be considered in these different points of view ; but he comes to no decision on the principal matter in controversy. 9. Julius pACius,f a knight of St. Mark, a phi- losopher, and celebrated vicentine lawyer, wrote on the liberty of the Adriatic sea, during the dispute between the king of Spain and the republic of Ve- nice. After laying down some general principles, he reduces the question to three points : 1 . Does the domain and jurisdiction of the Adriatic sea, belong to the republic of Venice ? 2. By virtue of what right does it belong to her ? 3. What are the effects of this sovereignty ? He determines the first point, as might •well be expected, in favour of the Venetians, on the authority of learned doctors; the second, by saying, that this sovereignty is founded on possession, sup- ported by prescription ; he explains the effects of this sovereignty, by shewing that it consists in jurisdic- tion, in the imposition of duties, the defence of navi- * Isaac Pontanus, was born at Hserlem, in the province of Guel- ders, and died in 16+0, at the age ot 69. He published a great number of learned works T. -}• Julius Pacius, born in 1550, at Vicenza, in Italy, was pro- fessor of law, at Padua. He died in 1635, at the advanced age of 85 years. His works on law are numerous, and considerably es- teemed T. Chap. 11. OF EUROPE. 215 Venetian advocates — James Godcfioi. gation, the protection of its subjects, and in the ex- pulsion of pirates. He answered the objections which were made against his opinions, on behalf of his catholic majesty, in an anonymous discourse on the freedom of the Adriatic sea, but not in such a manner, as to induce him to suppose that he should remain without a reply.(216) 10. James Godefroi,* desirous of elucidating the 9th law of the digest. Ad legem Bhodiam dejac- lUy lib. 14, tit. 2. entered into some considerations on the sovereignty of the sea. His chief purpose is to (216) The authors, who wrote in favour of the republic of Ven- ice, were, Cornelius Frangipan, author of a work, entitled, Alk' ^azion injure per Ui xilloria navale contro Frederico I, imperuiore, ex alto del Papa Alessandro III. per il dominio delta Repuhlica Feneta del suo gu/fn, contra alcune Scritture de^Nupolitani. Francis de In- genuis, author of a letter, entitled, Dejurisdiciione reipublical'en- etcE in mare Adriaticum scripta ad LiberiuinVicentimn Batavum , con- tra Jo. Bapiistam. Valentolam Ilispanuin, et iMurientium Motia- um romanum, against which, a reply appeared in the work of Joh : August : de Berger, entitled, Succinda coimnentutio de iin- perio maris Adriatici, Ccrsari, qua regi Dahnatarion, ac principi Istria-, lit et regi Neapoleos alque Sicilicc propria. Sarpi, on his side, published two works of very great boKiness, but with little foundation in reason: The titles of ti)em are, Do/ninio del mare Ad- rialico delta sercn repubblica di Veneua descritto da Fr : Paolo Sar- pi dell'ordine de Seni. Teologa. Tite other, Dominio del mare ndriatico e sue ragioid per it Jus belli delta sereiiissitna repubblica dl Venezia del padre Paolo Sarpi. * James Godcfroi, a native of Geneva, was a man of profound and accurate eruditioji. He died in 1652, at th.e age of sixty-two years T. 216 THE MARITIME LAW Parti. Disputes concerning maritime rights, between Denmark and Poland. discuss the rescript of the emperor Antoninus, con- tained in that law ; but he does not decide the ques- tion, which he handles cursorily, and in a scholastic manner. 1 1. The Baltic sea gave birth to controversies of the same nature, between the powers of the north. The king of Poland, in 1637, wished to subject the inhabitants of Dantzic to a new tax, and appointed a collector, and some vessels, for that purpose. The king of Denmark, who thought his rights infringed, seized the vessels, which were afterwards restored ; but, on condition, that it should not, in any manner, derogate from his sovereignty, or the prerogative of his kingdom. Poland, not willing to abandon her enterprise, made every effort to levy a new impost. This claim gave rise to the question, whether such a thing could lawfully be done. An anonymous Po- lish writer maintained the affirmative, in a discourse addressed to a friend. The contrary opinion was held by an anonymous Danish writer, in a small vo- lume, entitled. Mare Baliicum. Another Pole, per- haps the same anonymous wTiter just mentioned, published the Antimare Balticum ; each party exert- ed himself to the utmost of his ability, in defence of the rights of his sovereign. Though the arguments of the Dane appear more solid than those of the Po- lish writer, vet both of them are susceptible of refu- tation. Chap, II, OF EUROPE. 217 Ferdinand II. confers on Wallenstein, the title of general of tlie Baltic &c. 12. The emperor, Ferdinand II. in granting to duke Wallenstein,* the dutchy of Mecklenberg, con- ferred on him also, the title of general of the Baltic sea, and the Ocean. The king of Denmark com- plained of this in 1628; and the king of Sweden went so far as to say, that the protection of that sea belonged to him alone. Such was the origin of the war in Germany, by Gustavus Adolphus.-|- He de- * Tiiis extraordinary character, was a private gentleman of Bohemia, devoted to the interestsof the house of Austria, and for his successful services in the wars against the Turks, Venetians, and Bohemians, the emperor created him count of Fridlan, and, afterwards, duke of Mecklenberg, He conferred on him immense estates, which had been confiscated in Bohemia, by which he was enabled to raise, and maintain, an army of 50,000 men, at his own expense. In splendour, and sumptuousness of living, he sur- passed all the princes and nobles of the empire. He was a mili- tary adventurer, ambitious, haughty and capricious T. f From the manner in which this is expressed by our author, the reader would naturally conclude, that the vanity of Wallenstein alone, provoked Gustavus to a declaration of hostilities, and that the sole motive of the king of Sweden, for entering into 'his war, was to strip the imperial general of an empty title ; a motive un- worthy of that great monarch. Many other, and more powerful inducements to war, already existed in the mind of Gustavus. He had listened, with compassionate attention, to the complaints of the protestants against the emperor ; he had promised them his protection and aid, and offered his kingdom as an asylum to the persecuted. The rapid successes of the imperial generals against the protestant princes ; the situation of the Hanseatic, and other Baltic towns, menaced by the daring Wallenstein, were enough to alarm Sweden and Denmark for the safety and independence of their own dominions, and to induce them to think of checking the fur- VoL. I. Ee 218 THE MARITIME LAW Parti, War between the king of Sweden and the emperor. — Bynkershoek. clared hostilities against the emperor, in order to compel him to suppress the title of general of the sea, which he supposed injurious to him. Balthazar Henkel maintained the justice of this war, in a work entitled, De belli pretextioiie Gustavi Adolphi. The author justifies the declaration of war, by the king of Sweden, and enters into an examination of the sub- ject, without forgetting any thing which may favour his opinion. If such a dispute were to be decided, by the pieces produced on both sides, the decision would certainly be in favour of the king of Sweden, for the arguments aliedged by his defenders, produce complete conviction, and entirely refute the reasons offered by the advocates of the emperor. 13. Bynkershoek has left us a very learned disser- tation on the empire of the sea. It is divided into nine chapters, and is worthy of the reputation of the author. He maintains, however, a singular opinion, defending, at the same.time, both the liberty and the sovereignty of the sea. He affirms that the sea may be made subject to dominion j but he asserts, that therprogressoflliat victoriousgeneral.Tlieambassadorssenf by Gus- tavus to reprtfsent him in the congress at Lubeck, were refused ad- mittarce with the most insulting contempt, through the influence, as he had reason to believe, of the emperor and Wallenstein. All these provocations, combined witli his attachment to the protestant Cause, and his desire to repress the alarming ambition of Ferdi- nand, were, to such a character as that of Gustavus, sufficient mo- tives to commence open hostilities, and to carry the terror of hi;! arms into the heart of the German empire T. Chap. II. OF EUROPE. 219 Dissertation of B} nkerskoek. — Gi-iuiswinckel's work. there is not an instance, at the present day, of its be- ing subject to any sovereign, where the surrounding territory did not at the same time, belong to him. It appears, that Bynkershoek borrowed this opinion from George Paul Roctenbeck, who pubUshed, be- fore him, a work, entitled, Dissertatio, an mare do- ininiiy siue imperii sit capax. 14. Theodore Granswinckel* wrote in favour of the liberty of the sea, against Peter Baptist Burgo, who, by strange principles, and feeble arguments, maintained the sovereignty of the Ligurian sea, in fa- vour of the republic of Genoa, in a work entitled, Dc Dominio Sej-ensis. Gcmicnsis RcipiibliccC in Mare Liguslico, lib. duo. The former author replied to him in a work entitled, Vindicia adversus Fetrum Baptislum Burgiun Ligustici marix dominii asserto- rem ; he published, also, a short time aiterwards, a second work, under the title of Vindicatio maris li- beri adversus Guill. IVeLwoodum Brilannici maris do- minii assertoreni. These two performances are writ- ten with great animosity. They take from the Geno- ese, every hope of reclaiming their pretended empire over a great part of the Mediterranean sea, and trom the English, that of the British ocean, so vainly arro- gated by them. * Theodore Granswinckel, born at Delft, in Holland, was ihc kinsman and intimate friend of Grotius. He died in 1666, at tlie age of 60 years.,. ...T. 220 THE MARITIME LAW Parti Dissertation De dominio maris, by John Straucliius. 15. John Strauchius, in a dissertation, entitled De imperio maris ^ has attempted, in the first chap-- ter, to demonstrate, that there is nothing in the na- ture of the sea, repugnant to the idea of property ^ and in the second chapter, he maintains that it is mo- rally susceptible of perfect dominion. In the third chapter, he describes the empire of the sea, as assum- ed by the Romans j and in the fourth, the manner of acquiring this sovereignty, by imitating the division of the world made by Noah, that is, by the possession of the first occupant, by accession, and by prescription. In the fifth chapter, he examines the means of preserv- ing this sovereignty, as by naval armaments and tri- bunals. He treats, in the sixth chapter, of impera- tive acts, such as lowering the flags by foreign ships, in form of obeisance, of impositions, of impressments, of the right of anchorage in ports. He pursues the same subject in the seventh chapter, where he speaks of the imposition of taxes and duties. In the eighth chapter, among the incidents of the sovereignty of the sea, he ranks, the power of prohibiting a passage to strange vessels ; and, in the ninth chapter, he treats of the punishment of crimes, the pursuit of pirates, and the seizure of contraband goods. This author, who has blindly copied the doctrine of Selden, finish- ed his dissertation, without perceiving that the rights, before discussed, belonging to all the powers of the world, over their respective territorial seas, though universally allowed to be legitimate, are not suffi- cient to establish dominion and property in regard to the high sea. So that it may be said, he has laboured Chap. 11. OF EUROPE. 221 Galliani's work on the rights of neutrals. in vain, to determine a matter not brought into ques- tion. On the other side, George James Leicher- Ri, his contemporary, has published a work, equally destitute of utility, entitled Commentatio de jure ma- ritimo. 16. The Abbe Galliani, a Neapolitan, is the last of the writers on public law, who has treated of this subject; and he is the first, if I am not mistaken, to follow those principles of natural law, already laid down, in the preceding articles, I. and II. of this work, and to deduce from them, an inference which ought to be universally adopted. 17. This celebrated author, in his work, entitled Dei Doveri de' Princlpi de Neutrally lib. 1, ch. 10, § 1. supposes five essential points of difference, be- tween journeys by land, and voyages by sea. Rea- soning on these differences, he thence concludes, with great clearness, that nations can occupy, and become the proprietors of the different regions of the earth, since it is in their power to secure this possession by defending the passes of mountains, and the mouths of rivers; the rest of the country, being naturally defended by rocks, valleys, rivers, forests, morasses, the borders of the ocean, and de- serts. But not being able to surround, nor strictly to defend the open sea, since no solid w ork can be erected on that element, it is impossible to guard it, and consequently it is by nature incapable of be- mg occupied. From opposite reasons, he concludes. 222 THE MARITIME LAW Parti. Arguments of Galliani. that when the shores of a sea belong to a single na- tion, and inclose an expanse of water, large or bmalJ, which has no communication with the rest of the ocean, or communicates only by a narrow strait, this part of the sea may be lawfully possessed, since it may be occupied, inclosed, and defended. .But when the parts of the shore, which encompass this sea, thus circumscribed, belong to different inde- pendent nations, it is obvious that there is no reason, nor pretext for the nation, who possesses the land forming the straits, or out-let of this sea, to refuse, a passage, and free navigation within, to unarmed vessels; because, as this nation receives no damage, loss or inconvenience, h-om the passage of vessels, it cannot reasonably refuse to others an enjoyment advantageous to them, and in no degree injurious to those who may wish to prevent it. (208) It ap- pears, also, that the possessor of the shores, which form the mouth of the gulf, or inclosed sea, may, justly, insist on the right of visiting the ships tl^at pass the strait; and, as a matter of wise precaution, may prohibit the passage of armed vessels, when, from their number, and other circumstances, there is room for distrust, or just ground of suspicion. (203) llbtd certum est etiam qui mare occnpareril navigationem i7npedi>-e non posse iiier mem et innoxiain. Grotius, Dejwe belli ac pads, lib. 2, cap. 3,§ 12. CHAPTER III. OF THE EFFECTS OF THE EMPIRE OF THE SEA. ART. I. Of Property in territorial Seas, a?id of tJieir Depen- dencies § 1. When a nation takes possession of an unoc- cupied country, it may justly be considered as having acquired, besides the property of the soil, the domin- ion and sovereignly. Being thus free and independ- ent, its only aim will be to prevent every other na- tion from assuming the right of command, or exer- cising any acts of sovereignty whatever, within the space over which its empire extends, and which forms its territorial jurisdiction.* 2. A nation that occupies a part of the adjacent 3ea, has the sovereignty as well as the dominion of it, and enjoys there all those rights which appertain * Vattel, lib. 1, ch. IS T.. 224 THE MARITIME LAW Parti, Property in the sea adjacent to the land. to it on land, and which are given to it by the laws of the state. (2 17) 3. It follows from this fundamental principle, that the empire of the sea, according to the system established in the preceding chapter, is not to be re- garded as a vain jurisdictional right, or as a mere ho- norary title, according to the exaggerated expression of Grotius ;(218) but has the real effects of every other kind of property. It differs in nothing from that of the land, and, consequently, gives us the entire disposal of the thing possessed, and the right of sell- ing, exchanging, granting, and alienating it at pleas- ure ;(2 19)* provided, that the possessor transfers no (217) Quoniam partes maris occupati ad territorium illius gentis pertinent, quce eas occupavit , quale jus Rector civitatis in suo territorio habet, taleetiam ipsi competit in parti bus maris occupatis; et per con- sequens qui iis versantur, iisdem legihus suhsunt, quam qui in terris habitant aut commoratitur,etiam peregrini admissi. Wo\{]as, Jus.Nat. et Gen. cap. 5 See Grotius, Dejure belli ac pads, lib. 2, cap. 3, §8 and 13. (218) Grotius, De jur. bel. ac pac. lib. 2, cap. 3, n. \%. (219) Ferret, rfe re na»a/z, \\i.denautican.\,et2^. Perigrin. Dejure jisci,\ih. 8, n. 9 et sequ. Binkershoek, de Dom. Mar. cap. 4. Unum eundemque principem maris renuncio et vere dominium; simulque et kanc potestatem tribuo, qualem optimu7n maximam jnrisconsuUi so- lent adscriberi dominio. Itaque ut quisque rei sine liber est moderator, et arbiter, ita dojninus maris poterit id ipsum venderc, permuiare donare, in solutum dare, aliisque modis ex animi sententia de eo sta" tuere. * See also Barbeyrac's note on Grotius, lib. 2, ch, 3, § 13, who agrees with Bynkershoek, in rejecting the distinction of Grotius, between jurisdiction and properly, in regard to the sea T. I CliaiK III. OF EUROPE. 225 Propert}- in roads, bays, ports, straits, &c. greater right than belongs to him ; that is to say, that those who derive title from him, shall preserve their property no longer than while they continue in pos- session. (220.) 4. The occupation of a portion of the sea, draws after it that of the coasts, roads, ports, and adjacent islands. But if different nations possess lands along the shore of a strait, or gulf, the empire of each must extend to the middle of the water, at an equal dis- tance from every part of their respective and oppo- site shores ; unless they have agreed to enjoy that space of sea, in common, and undivided, and, by their united power, to protect their mutual rights against strangers.(221) 5. The same principle may be applied, with great- er force, to the dominion of bays, straits, and har- bours, as more susceptible of occupancy, and as in- volving more the security of a country. Besides, bays, and straits of small extent only, are here intended, and not those large arms of the sea, which are often denominated such ; as Hudson's Bay, and the Straits of Magellan, over the whole of which, the right of empire, and much less, the right of property, cannot be claimed. (220) Grotiu?, /oc. ell. § 12. Gronoviiis, in coinmcn. (221) PufTendorf dcjnrcnat. ct gent. lib. 4, cli. 5, § S. Selden, Mare Clausum, lib. 2, cap. 20. Vol. I. F I 226 THE MARITIME LAW Fart L Extravagant claims to the British seas, advanced by Selden. 6. The celebrated Selden, in spite of these obvious principles, concludes his book on the empire of the sea, by the bold assertion, that the very coasts and harbours of the neighbouring states, situated on the other side of the British seas, are the limits of the maritime empire of the English to the south and to the east. But more modern, and more candid wn- ters, have abandoned these extravagant and antiqua- ted notions. In the disputes that arose, in 1636, be- tween Charles I. king of England, and the states- general of the United Provinces, relative to the her- ring fishery, in the British seas, the latter denied this pretended empire of the English, w^hich, they observed, could exist only in their own bays and gulfs, or on their own shores. The celebrated phi- losopher and historian, David Hume, agrees with them in opinion : " It may be questioned," says he, *' whether the laws of nations warrant any further " pretensions."(222) ARTICLE II. Of Straits, and the Duties imposed on their Passage. § 1. WHEN maritime straits are so situated, as to form a necessary communication between two seas, the naviiration of which is common to all, or to most nations, the power in possession of the straits, can- (222) History of England, vol. 6, p. 306, Svo. ed. 1791. Chap. III. OF EUROPE. 227 Rjglit of passing sti-aits ; — Duties may be imposed on it. not refuse a passage to others; provided the permis- sion is used with moderation, and is attended with no injury. By denying a passage, without just cause, the first nation would deprive others of an advan- tage, derived from nature ; since the right of saihng from one sea to another is a part of the common possession of that element, which belongs to man- kind, in its full extent. 2. The care of his own safety and preservation, alone authorises the sovereign of a strait to make use of particular precautions, or to require the ob- servance of certain formalities, authorised by the usage of different nations. He may, tor this reason, impose moderate duties on the passage of ships, either on account of the inconvenience which they occasion, by obliging him to guard his territory, or for the sake of the protection afforded against ene- mies and pirates, and for the expenses incurred in maintaining light-houses, pilots, and signals, for their security. 3. In Exodus, and the prophecy of Isaiah, men- tion is made of beacons, or signals, established for the safety and convenience of navigation, and thanks are given to God as the author of this good, and of all others which men enjoy. (223) This custom according to Apuleius, is very ancient. It is supposed to have been practised by the Arabians, and other nations (223) Exodus, ch. 13, v. 21, and last chapter. Isaiali, ch. 4, v. .5. 228 THE MARITIME LAW Part I. Duties for the support of light-houses, as lawful as tolls on land. of Asia, in the time of the expedition of Alexander the Great. (224) It existed, also, among the Romans, accv)rding to the testimony of Li\ y, and other histo- rians.(223) It was by aid o' these signals, that Beli- sarius, general of the armiies of Justinian, defeated the Vandals in Africa. (226) Grotius cites them, as an example of the difference between those expen- ses, incurred by princes, who are masters of the sea, for the benefit of others, and those which they incur for tlieir own private advantage. (227) From the utility of these establishments, Baldus* maintains, that maritime tolls are as lawf"ul, as tolls imposed on land. (22'1-) Apuleius, dc mimd. Quint. Curt. lib. 5. (225) Livy, lib. 2, et 8j decad. 3. Caesar Comment, lib. 2, et 3. Vegetius Dere milii. lib. 3, ch. 5. (226) Aimonius Monachus, Degest. Franc, lib. 2, cap. 6. (227) Grotius, De jure belli ac pads, lib, 2, cap. 3, § 14. Qiiare nee contra jus nature, aiit ^entiwnfaciet, qui recepto in se onere tu- endcc navigationis, juvandce per ignes nocturnes, et brevinm signa, vectlgal aquum imposuerint navigantibus , quale fuit Romunum xecti~ gal, Erythrceum ob sumtus exercitus maritimi adversus piraticas cx- cursiones et qvnd in Porto Bizantini exigebant llccyuylov et quod Jam nlim Athenienscs occupata Chrysopoli exegtrant in ponto eodem, memorante uiru7nque tolybio; et quod in Hellesponto olini Athenien- scs eosdcm exegisse ostendit Demosthenes in Leptinem ; sua aiite7n tem- pore Roinanos Imperatores in arcana historia memorat Procopius. * Baldus was a professor of law at Padua, and, afterwards, at Pa- via, in the 14th century, and died about the year 1400. He was the pupil an:! rival of Bartolus. His works, but little read, are con- tained in 3 vols, folio T. Chap. Ill, OF EUROPE. 229 Sound duties imposed by Denmark, on tlie passing into the Baltic. for the passage of rivers, bridges, roads, and in other cases of a similar nature. (228) 4. Some modem powers have established duties of this kind. (229) Denmark, in particular, has im- posed a tax on the passage of Elsineur, or Elsingeor, on all vessels going in, or out of, the Baltic sea, through the sound, (230) between Zealand and Sca- (228) Bald. tit. De Her. divis. col. 2, vers. Numquid ibi. Vccii- galia marithna sunt aqnisiwia, qiioniarn ad tuitionem maris, et verani in eo securltnteni prxslandum constilula reperiuntur, qua sane ingen- tem sumptuum iiiolem exigit : quorum snbluramen quia pomgant illi qui securitate fruuntur, quis negare ausit ? Vid. de Affiut. ad cap. 88, Verb. Vectigal. n. 101, et Cacher. Decis. Pede. decis. \b\;per tot. (229) The dukes of Savoy, in quality of counts of Nice, receiv- ed a duty which tiicy called de I'ilk-Frunche, on all ships passing by that port, at the distance of eighteen miles. The princes of Mo- naco imposed a similar duty. (230) The Sound is the famous strait between the island of Zea- land, which makes part of Denmark, and the main land of Schonen, belonging to Sweden. On the Danish side, is the town of Elsi- neur, with the fortress of Cronenburgh, near which is a tolerably good road for ships. On the Swedish side, is the town of Helsin- bourg, with a castle in ruins. Vessels trading to the Baltic, pass and repass, between the>e two places ; and it forms the proper pas- sage into that sea. Though the great and little Belt, are also pas- sages leading into the Baltic, yet they are little frequented. The little Belt is not deep enough, and the great Belt is filled with rocks and shoals, just covered by (he water, so that vessels run great risk in passing through it ; the Sound is very deep, though it is not more than half a mile wide, near Connemburgh, and the objects on either shore, may be clearly distinguished. Great care has been taken to place lights on all parts of the coast, where there is the 2S0 THE MARITIME LAW Part /. Treaty between England and Denmark, as to tlie Sound duties. nia, in proportion to the burden of the ships, and the value of the goods on board, Tiie Danes, to whom the latter province formerly belonged, and who, con- sequently, were masters of both shores, have taken care, though they have since lost the province, to preserve the possession of the toll, which now con- stitutes a considerable branch of their public reve- nue. 5. This right was originally, in part founded on an acrreement made between the first naviorators who passed this Sound, and the sovereigns ot Den- mark, who undertook to establish in the Categat, light-houses and other signals, to serve as guides to ships, and to guard them against accident, and for •which each vessel was obliged to pay a certain duty. In the lapse of time, new duties have been imposed on goods, which have been ratified, and acknowledged as lawful, by subsequent treaties with other nations. 6. Henry VI. king of England, in 1450, made a treaty with Cnristian, king of Denmark. After- wards, by a second treaty between Henry VII. and king John, concluded in 1 490, the two nations mu- tually granted to each other, entire freedom of com- merce, by land and sea, in their respective states, least danger. Other beacons, when lighted, serve to guide vesselr. in dark .and stormy nights. In short, every precaution has been taken to render this passage as safe as possible. Chap. I I J. OF EUROPE. 231 Treaties between Denmark and \ arious nations, as to the Sound duties. on paying the customary duties, excepting in cases of stranding and shipwreck. Those who wish to enter the Baltic, arc bound to pav the Sound duties, and to pass always through the Strait, and not by the two Bjlts, unless when forced to do so by stress of weather : in such case, on proving the truth of the fact by the oath of the captain, or of two seamen, they must pay the same duty at the custom-house at Nyburg. The English made a third treaty with Denmark in 1G70, in consequence of which they are, particularly as to the Sound duties, placed among the number of the most favoured nations. 7. In 1533, during the interregnum of the queen regent of the Low Countries, the first treaty was made between Holland and Denmark, relative to the Sound duties. At the peace of Spires, concluded in 1543, between the emperor Charles V. and Chris- tian III. the latter engaged not to demand from the Dutch, Flemings, and the inhabitants of the Low Countries, a greater Sound duty, than a rose-noble'*- for each ship. 8. In 1645, the Sound duties were fixed by a per- manent regulation ; and a treaty was concluded the same year, in relation to tliis object, at Christian- pole, a small Swedish town, then belonging to Den- A piece of gold coin, of the value of(?>. 8d. sterling, or one dollar and forty-eiglit certs. 232 THE MARITIME LAW Part L Nations favoured by Denmai-k, as to Sound duties. mark, between that kingdom and the states-<7-eneral of the United Provinces. To this treaty was subjoin- ed a tarif of the duties to be paid by ships and goods passing the Sound, on entering, or coming out of the Baltic. This treaty, and the tarif, have served as the^basis of other stipulations of the same kind, since made with England, and France, in 1770. At the present day this tarif is the only one used, in the custom-houses of the Sound, for the ships and goods of all nations. 9. In 1663, was concluded the first treaty be- tween France and Denmark, relative to the duties of the Sound, This treaty was renewed in 1742. Since that period, the French have been considered as one of the most favoured nations in regard to this passage. This title of favoured nation is of so lit- tle advantage to those who are distinguished by it, that it excites no jealousy in those who are not among the number. It consists in this, that the most favoured nations pay one per cent, duty on goods, not comprised in the tarif, while others pay one and a quarter per cent. Among the for- mer are included the English, Dutch, French, Swedes, Spaniards, Portuguese, Russian?, Neapoli- tans, and the city of Hamburg on the Elbe. Chap. III. OF EUROPE. 233 Duties of masters of vessels on entering' ports. ARTICLE III. Of Ports, Bays, and Gulfs. § 1. THE navigation of seas renders necessary the use of ports; as flowing from the law of nations, it is a public use ; every ship, for this reason, may approach, anJ cast anchor in any port, provided, it be furnislied with the necessary papers to prove that it belongs to a friendly nation. But, as a conse- quence of the empire of the territorial sea, every port must be considered, as belonging to the state within which it is situated, and, therefore, subject to the jurisdiction of the ruling power.(23l) 2. Whenever a ship enters a port, the master is bound to conform to the usages and regulations which are there established, to take his station in the customary places, where other vessels of the same nature and burden are stationed, and at the distances prescribed, to obey the instructions he may receive from the harbour-masters for that pur- pose ; and, finally, to pay all duties and charges that are there imposed. (232.) (231) Instit. lib. 2, tit. 1, §2. De Rer. divis. Dig. lib. 1, ti(. 8, I. 4, § I. eod. Feudor. lib 2, cap. unic. 9u(t siitt regal. Riclieri ia cod. lib. 2, tit. 1, defin. 2. Loccenius, Dejure imriliino, lib. l,cap. S, § 2, 3, et 4. (232) Cod. lib. 12, tit. 45, De Lilior. et itiner. custodia. Conso- lato del mare, cap. 199, 2G0, et 224. Ciijac. ad tit. cod. de vectigal. ct comm, Loccenius, De jure mar it. lib. 1, cap. 8,. § \,5,ct sequ. Vol. I. G g 234. THE MARITIME LAW Part L Duties relative to ports, applicable to bays and gulfs. 3. These obligations relative to ports, are of equal force in bays and gulfs, inasmuch, as they also make a part of the sovereignty of the state, within whose dominion and territory they are situated, and are equally placed under its safeguard and protec- tion ; consequently, the asylum afforded in a bay, or gulf, is no less inviolable, than in a port, and every breach of jurisdiction, committed in the one, as well as in the other, must be considered as an open violation of the law of nations.(233) (233) Hubner,* Delasaisie des batimens ntidrcs, torn. 1, ch. 8, § !0. Valin. Comment ci VorcLon. de France, liv. 4, art. I, tit. De$ Rades. • Hubner expresses himself verj' pointedly on this subject. " In fact," says he, " an independent nation is not oblig'ed to render any account to another of what passes within its own jui-isdictions ; unless it has, in certain respects, so far tied itself down by formal ti-eaties. Much less is it obliged to permit sti'sngers, who, under any pretest w Late\ei', enter its ports or bays, or come witliin reach of cannon-shot, to visit its vessels. The sovereignty of the place forbids even the ships of war, or privateers of belligerents, from visiting or captoring the vessels of their enemies, within such neutral terri- tory ; for a much stronger reason, ought they to refrain fiom any act of this kir.d in regard to neutral vessels. Such belligerent vessels are themselves subject to the temporary jurisdiction of the sovereign of the place ; so far at leastj as the security of its citizens, the ti'anquillity of the state, and the gen. eral laws of society require. If the commander of a belligerent vessel should so far forget Iiitnsclf, as to exei'cise any act of authority, jmnsdiction, or hostility, tow:u'ds other vessels within such ncuti'al tern tor}', he can only blame himself, if treated, prosecuted, and punished, as a disturber of the public repo.se, and a violator of the supreme aiitliorlty of the sovereign of tlie country. The latter has full right to proceed in tliis manner. If he does not choose, on some occasions, to exercise this right, but contents himself with oomplaiiiing to the sovercig-n of such offenders, of tlieir acts of %'iolence, it is an attention on his part, which the other ought to take kindly, and be tlic more rci.dy to give him the fullest satisfaction,"-. ...T. Chap. III. OF EUROPE. 23i Of various maritime duties. ARTICLE IV. Of other Maritime Duties^ and of Anchorage Duty, § 1. MARITIME nations have, also, aright to impose such contributions, and imposts, on the terri- torial sea, as they may judge necessary to defray all the charges and expenses, which the public securi- ty, and the convenience of navigation, require. For this reason, when, for the purpose of rendering na- vigation secure,, and to aid mariners, light-houses, buoys placed to point out sand-banks, and com- panies of coast-pilots, are supported, a reasona- ble toll may be levied on all vessels, without any infraction of natural law, or the law of nations, like that, formerly exacted by the Romans in the Red Sea, to reimburse the expenses of the naval force, which they maintained against the pirates. (234) The Byzantines made the vessels that entered the Euxine, pay a small duty,(235) as did the Athe- (234) Pliny, I listor. natural, lib. 6, cap. 22, speaks ot" a certain Annius Plocanus, who had farmed the toll of the Red sea : Id accU dit hoc modo ; Annii Flocanii qui viaris Rubri vectigal afisco rede- nierat lihertas circa Arabiam navigaiis," &c. And in the lollowing chapter, where he treats of the navigation in the Indies, he says, that on account of pirates, they embarked companies of archers ori board of their vessels, which sailed every year. Donee coiupen- dia invenit mcrcator Incroque India admota eat. 2uippe omnibus an. rds navigalur saggitariorum cohortihus impositia; tt enim pirata maxime infentant. (235) IJerodian, lib. S, cap. 1, n. 11. Procopius, cap. 25. i 236 THE MARITIME LAW Part L Tributes levied by tiie ancient nations on vessels. nians,(236) formerly, in the same sea, when they were masters of Chrysopolis, opposite Byzantium. The Athenians also, levied a tribute in the Helle- spont ;(237) the Romans did the same, in the time of Procopius,(238) and it is the practice, at the present day, among most of the powers of Eu- rope. (339) 2. This has given rise to the duty on anchorage, the power of pressing vessels for a particular ser- vice,* and of detaining vessels anchored in ports and roads. (236) Polyhius,\\h. 4, cap. 4't. (2.'57) Xenophon, Grac. Hist. lib. 4, cap, S, § 27 e< 31. (238) Procopius, in arcana hist. cap. 25. (239) Dig. lib. 39, tit. 4, 1. 10, De publican, et ted. Chacheran, Decis. 155, n. 3. Zuarius, De nsu maris, cons. 1. St_)pnaanniis, Jus marit. Hanseat. par. I, cap. 5. Loccenms, Dejur. mar. lib. 1, cap. 4, n. 6. Casaregis, De Comm. Disc. 136, n. 1. Heinecc. in Frce- lect. Acad, ad Grot. lib. 2, cap. 3, § 14. Privim effectus est Jus im- ponendi recti galia : cvjtis juris ccquitatejn Grotius suo more probat ex eo qund dentitr in compensaiinneni impensariim Jactartivi arepuhli- ca ex moribus et consensu gentium. Osteiidit, enivi et B.07iianoSyei By- santinos, et Athenienses exegisse a Jtariguntibus vectigalia. * La faculty d'tiser des angaries. — The French word, angarie, is taken from the Greek ; (see the next article) among the Persians, angarus was a royal messenger, employed ibr the speed)' convey- ance of public dispatches, and had the power of pressing horses, carnages, and men, for this service ; and among the Greeks and Ro- mans, angara, inns or post-houses, appear to have been establish- Chap. III. OF EUROPE. 237 Anchorage duty on ships. 3. Anchorage-money is a duty collected from a foreign ship, when, for greater safety, it is desirous of casting anchor, and of continuing in a port or road. Justice, however, requires, and it is the ge- neral practice, that when a ship departs from a port, where it has paid anchorage-duty, and is compelled, by any accident, to return, without having touched at any other place, not to exact another payment of this duty. (240) For the same reason, whenever a ship enters a port, from necessity, or on her way, she is not bound to pay the established duties, except those of anchorage, which she must pay, though no goods are unladen, nor any sale made.(24l) ed along the road for that purpose. The word frequently occurs in the Digest and Code, and signifies any Jorctd saiice. Angariuri estcogi. Gregoriusj 8. Epist. 14. Angariariid est cogere , verhum Persicutn. Suidas. See note to law 4, Dig. 49^ tit. 18. By the Ro- man law, no person was excused from contributing to this sen ice, either on account of his Civil dignity, or his religious profession. Neminem ab angariis, lel parangariis, rtl plausiris, xel quoUbei 7mi- nere excusare precipimus, cum ad felicissiminn cxpeditionevi nosiri numinis omniitm Provincialiinn per loca, (jua iter arripivius, dtbeant solila nobis viinisteria exkiberi, licet ad sacrosanctas Ecclesias posses- siones pertineant. Code, lib. I, tit. II, leg. 2. The word, as used in modern times, is confined to the pressing of ships T. (240) Dig. lib. 39, tit. 4, leg. 15, Depubli. et vectig. Targa, Pond, mar. cap. 72. Casaregis, De Com. disc. 10. (241) Dig. lib. 39, tit. 4, leg. 15, § 8. Depubli. et vectig. Loc- cenius, dejure maritimo, lib. 1, cap. 8 et 9. Casaregis, de Comm. disc. 10. 238 THE MARITIME LAW Parti, Of the impressment of ships- ARTICLE V. Of the Pressing of Ships* § 1. BY the impressment of ships,(242) (which is one of the prerogatives of supreme power) is meant the exaction of certain services and duties, imposed by a sovereign on ships, riding in his ports and roads, * Des Angaries. (2-t2) Angarie is a word derived from tlie ancient language of the Persians, as Herodotus, lib. S. Hesjchiusand Suidas, and after- wards Brisson, lib 2, de resio person, principatv , have remarked. After the Persians became masters of the east, this word, sa> s Gro- tius, in his Commentarxf on thefijth chapter af St. Mattheiv, passed to the Hebrews, and from the latter to the Greeks. Among the an« cient Greeks Ayyocoila,, was the same thing as ^e\i\», and signi- fied the service, or work exacted from a person against his will. Among the more modern Greeks, Ayyaju* is used for the pas- sage itself, or act of transportation by a public road. Commenta- tors have understood in this sense, the expression Angariarum and ^n^(2rio?7, of the law 4, Digest lib. 49, tit. 18, depririleg. Vetera- nor. and of the law 7, of Code, lib. 1 1, tit. 9. It is also sometimes expressed by the term serrhe naves. We find an example of this in the ancient inscription, mentioned by Gruterus, page 642, n, 2, Sub. L. Aruntio. Stella Navis. Harenaria. 2ua: Seriit. in EmiUanis Redemptore Lelio. Mucio. Felice.-f ■ t See Loccejilus, jure maritimo, lib. 1, cap. 5, § 2, from which thtf above is taken. The word in German and Belgic, is pt?fs>cn, in Eng-. ^\ to press: Chap. Ill, OF EUROPE. 239 Pressing of ships is a royal prerogative. in the time of some public expedition, for the trans- portation of soldiers, arms, and other vvarlikfe am- munition, for a certain reward. (243) 2. This right to press ships, is a royal prerogative which all sovereigns may exercise in cases of public necessity, or utility.* Though foreign vessels are thus obliged to perform the duties imposed by virtue of this right; yet it does not destroy the liberty of commerce and navigation, since it is temporary, and takes place only when necessity, or the public good requires it. But as it, in some degree, infringes this liberty, at least for a time, the exaction of this ser- vice may be guarded against by a convention to that effect. It is so stipulated in the l8th article of the treaty of 1753, between the king of Naples, and Holland, and in the 24th article of the treatv of 1787, between France and Russia. 3. No ship can be excused from these services, under the pretext of dignity or personal privilege ; all foreign ships, belonging to other powers, arc obliged to perform them, even, though they arc (24-3) Vinnius ad Peckium, cdl^/Y, Cod. de naiibiisnon cxcusandis. Stypmannus,jur. maritim. par. b, Cap. 1, n. 32. Loccenius de jur. mark. lib. I, cip. b, % 3. Code lib. 2. Feiidor, tii. qua: sint rega- lice. Targa. Pomkraz. 7narit. cap. 73, who, in § I, gives a most extraordinary origin to these impr-esscs. *' Mo\\o\ J de jure mar? ti mo, lib. I,cli. G, confines the exercise of the right to cases of extreme necessity : And he ngrecs with Loc- cenius, lib. I, cap. 5 T. 240 THE MARITIME LAW Part I. All vessels liable to be pressed. — Penalty for disobedience or misconduct. under an engagement to carry their cargoes else- where within a given time ; they have the right only of requiring an indemnity. (244) 4. If the master of a foreign ship, finding him- self thus circumstanced, endeavours to escape, that he may avoid this duty, or to retard the transporta- tion of the articles to the destined place, or shall, in any manner whatever, raise difficulties prejudicial to the success of the expedition, his ship will be sub- ject to confiscation, and his crew liable to punish- ment, proportioned to their breach of good faith-x(245) 5. If the master, instead of proceeding to the place of destination, touch elsewhere, and there sell the cargo of provisions, or implements of war, it is usual to inflict on him the most rigorous punish- ment, even that of death ; those who knowingly purchase the eflPects are equally exposed to the same (24.4-) Leg. 4, § 1, Dig. lib. 49, tit. 18, De Vetera/lis. Leg. IS., § 24. Leg. ult. § 22, et 23. Dig. lib. 50, tit. 4, Oe Muner. et Honor. Leg. 1 et 2, Cod. lib. 1 1, tit. 5, De Nuvib. non excus. a leg. miic. Cod. lib. 11. tit. 26, De Naut. T)ber. Sixtin. de Regaliis.hh. 2, cap. 23, n. 22. SelJen, Mare clausum. lib. 2 cnp. 20 Siypman. Jus. Marit. par. b, cap. 1, n. 23, Loccenius loc. cit. § b, n. 23. Amrariarum onus et'uvn exteros ajjicit, ait Sti/pinannus, quod quo- tidiana confirmnt praxis, cum line tamen lege, ut sui luhoris et officii digna, capiant prienua emolumentaque. ^ (2tj) Leg. 1. Cod. lib. 1 I. tit. 3, de nav. non^xcui. Leg. 10, Cod. de sacros. Ecclts, e leg. ult. Cod. lib. 1 1 , tit. 9, de Fabriccn- sibus. Chop. III. OF EUROPE. 241 Vessels pressed, if shipwrecked or captured. penalties; at least, they are liable to a rigorous and extraordinary punishment, according to the exigency of the case. ('2 46) 6. If any of the vessels happen to be shipwreck- ed, or taken by enemies or ()irates, the sovereign is not bound to make reparation for the loss, these events being merely fortuitous,(2 i7) provided, there is no imputation against the commander of the transports. (248) For the same reason the master cannot be prosecuted by the sovereign, if he should lose his cargo by shipwreck, or by any event of the like nature. (249) It would be unjust, also, to compel a ship to make more than one such voyage, or trans- portation. (250) (246) Leg. 3 et 4. Cod. lib. 4, tit. 40, 2rw Us rendi non poss* Leg. 5, Cod. lib. 2, tit. I , de navicuL Peckuis et Vinnius, ad Leg. 5. (2+7) Cum nemo ex fnclo alieno obligetur. Leg. 23. dig. dc Regut. Jur. (248) Nisi princeps ipse, rel per suos damnum ihtulerit quia pro- prium factum intertenit. Sixtin. in loc, cit. (249) Loccenius, in loc. af. cap. 7, § 11. Christineu. decis. SS, n. 2. Et testatur iiajudicatutn a Senatu Brabantino. (250) Loccenius, in loc. cit. • The 4th law of this title in the code, makes a distinction between the ftficndcrs : tlie more noble, and honourable were proscribed, and all their propc!lv confiscated ; while persons of inferior rank, and low condition, wei*e punislicd c.fj)itaUv. Hor.estiores qiiiJem stlum proscriptionis et omnium quorum aviissionevi incurrant ; inferiores auteni vilioresque pertonx capi- tali supplicio tubjaceant T. Vol. L H h 242 THE MARITIME LAW Part 1. Of embaigoes, or detention of fiiendly ships. '" ■■ '' a 7. We must, however, carefully distinguish the impressment of ships, on account of a war, from that made for the transportation of goods on oc- casion of the discovery, or conquest of some re- gion or island in the new world, or for other con- voys of the same nature. It is certain, that if ships, pressed for other objects than a military expedition, suffer shipwreck, or are taken by enemies or pirates^ the sovereign who ordered them on the voyage, ought to indemnify the owner for the loss, since it is unreasonable that any one should suffer from an expedition, intended solely to benefit another.(25l) ARTICLE VI. Of Embargoes^ or the Detention of friendly Ships, § 1 . THE right of stopping or detaining the vessel of a friend, is derived from the same source as that of impressing ships. Embargo is an act by which a sovereign, or power, not an enemy, detains one or more vessels, lying in his ports, or in the roads of his dominions, or prohibits their departure, on oc- casion of some public necessity, and not on account of war. This detention is made upon the payment, to the vessels retained in such circumstances, of a rea- sonable freight, equal to what they might have other- wise earned j which is agreeable to the principles of (251) Slxtinus fie Regaliis, lib. 2, cap. 13. Loccenius, in be. di. ch. 5, § 9. €hap. III. OF EUROPE. 24S Inconvenience of embargoes, provided against in modem treaties. equity and justice, and the universal practice of Europe. Detention differs wholly from capture ; the one has for its object the appropriation of the thing taken; the other to retain it only for a necessary purpose, restoring it afterwards, or paying its value. (232) 2. Without repeating, in this place, all that Gal- liani, in his book before cited, has ventured to say, in order to prove the inconvenience and injustice of the practice, it may be observed, that as the right of detaining friendly ships shackled commerce, it was stipulated, for the first time, in the 18th article of the treaty, between the king of the two Sicilies, and Holland in 1753, that ships, their crews and car- goes, should not be detained by any general, or par- ticular order, nor for any reason, or occasion what- ever, not even under pretence of the safety, and pre- servation of the state. This convention appeared so prudent,that,inashorttime,itwas generally adopted, and has since been included in all subsequent trea- ties between the different powers of Europe. (25 3) (252) Leg. 13, § 11, lib. 50, tit. 4, Dig. De mmerib. et honorib. Leg. 1, lib. 1 1, tit. 3, Cod. De navibus noii excus. Perezius, Corvi- nus et Peckius. Marquard. /)e jwre ?«flriV. cap. 5, n. 38. Guidon de la mcr, chap. 7, art. 6. chap. 9, art. 6 and 13. Ordinance de la marine de France, art. 1, tit. Des IcUres de marque. See also the pre- ceding article. (253) Mably. Droit public de VEuropc, p. 301 . V^ 244 THE MARITIME LAW Part L Strangers subject to the internal jurisdiction of territorial seas. ARTICLE VII. Of the internal Jurisdiction over territorial Seas. § 1. THE internal administration of justice exclu- sively belongs to the proprietor of the territorial sea, and the executive power, charged with the preven- tion of disorders, and the reparation of injuries, may there exercise its authority. The subjects of the sovereign are not the only persons amenable to this jurisdiction. It extends to strangers navigating within it, who are considered as temporary citizens, andmembersofthe same political body. (254) Forthis reason, whenever the delinquents are private indi- viduals, the tribunals commissioned for that purpose, inflict on them punishments, proportioned to their offences ;{25 5) but if the persons guilty of these dis- (254) Tertia potestas ilia (nempejurisdictio Frincipis) extendilur quoque in udtena>, quijixum domiciliuin non habent, sed vel ad tem- pus, vel saltern transeunt, quia dum ibi sunt intra potestutis illius ter- viinos sunt, eaqne conlinentur. Qnidquid autem interea temporis ah ipsis agitur id potestate quoque ejus, qui territorio prteest, eontinentur ; quia duin agiint v. if. cnntrahunt, delinquunt sub en potestate sunt. Hen- ri. Coccei. ad Grotium, lib. 2, cap. 1 8, § 9. Disp. de Fund, in territ. jurisdic.tit. 2, n. 6. Inter exercit, n. 5^. Valtel, Droit des Gens, liv. 2, ch. 8, § 1 63. See tlie first note to the first article. (235) Hpinec. in Frclect. Acad, ad Grot, lib, 2, cap. 3, § 12. ad Jinem. 'Huemadmodum exteri, qui in territorio nostro nuvisant. Hint nullum est dubium, quin puniri a Belgis possii qui in mari hoc fais- trali pitaticum exerruit, tel Iwtnicidrum cornmisit, quumvis sit exte- rus. Elal finem § 15. Nos addimus et invitis vicinis imperuntem mari posse leges dc usu, navigationis prccscribere. Stypman. de jure Chap. III. OF EUROPE. 245 violations of this jurisdiction may be punished. orders, are nations or societies, they are chastised by the public armed force, until they give satisfaction for the offence, and make complete reparation for the injuries committed. Such is the origin ot naval wars carried on against lawful poucrs, or unlaw- ful, as pirates and corsairs, the disturbers ot the public tranquillity, and against all those who interrupt the security of navigation, and the prosperity of com- iiierce.(256) 2. From observing the rights of sovereignty, even that of inflicting the punishment of death, exercised by the commanders of ships of war, in ports and bays belonging to another power, some authors, and, among the number, Hubner,(257) have pretended. maritimo, par. 3, cap. I, n. 19. Sequitur potesias anhnadteriendiin facinorosos, quam connexam esse xull salvo conductui Gilman, et ex- ilia elicit jurisdiciionem et cognoscendi suptr causis site civilibus, site criminalibus, si in littore inter vel illos ibi habitanles, aut aliler illuc accedenies oriantur, tel cliam in inari liltori prvximo, si simul cum littore ad certa spatia occupatum sit. (256) Authcnt. Tlucc in Prorincia, etc. Cod. ubi de crimine agi oportet. Loccenius, dejurc rnarit. lib. 1, cap. 4 et 6, n. 4. Stypman. ad jus marit. par. I , cap. 6, n. 38 1 . ibid. " El quia regna non artinn- ibus, sed arm is rindicaiilur legiones assumendo, ubi le^es dejiciunt ventendum ad arma, ubi locum intenire Justitia apud adrersarium nequit. Nullum cnim bellunijustius, quam quod pro rebus repcten- dis suscipitur. (257) Hubner, De la saisie des hdtimens de neutres, speaking of the capture of a neutral vessel, lays down without any proof, the following theory, which is opposed to the principles above adopt- ed. " Les vaisseaux neutres, sontj sans contredit, des lieux neu- t246 THE MARITIME LAW Part I. Authority exercised on board of a foreign ship of war in a neutral port. that such ships must be regarded as foreign territory; for this specious reason, that if the place occupied by the vessel continued to be the territory of the sove- reign of the port, such acts of complete jurisdiction could not be exercised in his presence, and within his dominions. 3. It will be easy, to remove this difficulty, if we consider for a moment, that this act of jurisdiction, supposed to be done on board of a ship of war, is not founded on the right of territory ; but upon the nature of the military command, exercised on board of her, which remains unimpaired, and in full force, whenever the sovereign of a port consents to admit a vessel of war, as such. Without this continuance of military power, it would be impossible to govern the ship's company, and maintain discipline on board. The exercise of this power in its fullest ex- tent, on board of a ship of war, is, therefore, a ne- cessary consequence of the asylum, granted to it, not the peculiar right of the commander of such ship, much less a territorial right. tres — puis qu'il revient au in6me d'enlever des effects d'un na- vire neutre, ou de les enlever d'un territoire neutre."* Tiiis argu- ment is very illogical, as will be shewn in the second volume, when we come to speak of the effects of neutrality. * This position of Hubner, was advanced before him, by Mons. Michel, the Secretaiy of the Prussian embassy, on the subject of captures by the British in the war of 1745, and which produced the celebrated memorial and answer in 1752 — 3 T. Chap. III. OF EUROPE. 247 The internal command of a forei^ ship of war remains unimpaired. \ 4. Thus it follows, from the nature and quality of a ship of war, that the internal military com- mand remains untouched : but that in every other respect, she and her company, are subject to the jurisdiction of the sovereign of the place. My opi- nion, on this point, is founded on the principle, ge- nerally received, that a foreign army, that passes through, or stops in the territory of another sovereign, remains subject to the jurisdiction of the country, though the military authority exists unimpaired in the hands of the commander, by virtue of the tacit consent of the sovereign himself, according to a principle of universal reason, that he who grants a right, or privilege, grants, also, all those necessary incidents and powers, without which it could not be exercised, or used. (248) ARTICLE VIII. Of Commerce and Fishing. §1. ANOTHER consequence of the empire of the territorial sea, is the right of permitting or pro- hibiting commerce, or the residence of foreign mer- chants in the country, either by imposing duties on the importation or exportation of goods, allowed to (24-S) Henric. Coccei. Dlspiit. de Fund, in territ. pot. lit. 2, n. 14. Eudem polentas exienditur (juoque ad excvcitas peje^rinos corumque duces. Knidi. Dejurc territ. cap. 4, n. 4. Vattel, Droit dcs Gins, liv. 2j chap. 8, § 103. Pufil'ii. dcjurc nat. ei gent. lib. 3, cap. 3, § 10. 248 THE MARITIME LAW Part L Commerce and fishing may be regulated by laws. be imported and exported, or by inflicting punish- ments on those who who import or export prohi- bited goods.(259) 2. It will, perhaps, be objected, that if you ad- mit the sovereignty of the sea, in regard to fishing, it is not allowable to restrain the freedom of navisra- tion ; since, as has been shewn in the first chapter, it is common to all mankind, and inexhaustible in its use. 3. But it may be answered, first, that even the libsrtv of fishing, could not be allowed without the power of excluding navigators from the places al- ready occupied ; and in the second place, highways may be considered as inexhaustible in their use, as the sea; yet they are subject to the laws of the (259) Heineccius, de navibui oh vecturam vetit. mere, commiss. Exercit. 8, § ^, ibid. Interest sane reipuhlicct ne promiscue oinnibus negntiandi hcenlia detur. Interest, tit ja7n Aristoteles Polit. lib. 1 , cap. 6. Mnnuit legibus definire, quibuscum communicare cites opor- teat, cum quibus Jion oporteui. Interest, ne eiteri coTunierciontm ob- tentu cites dititiis spoiient, luxu aliisque vitiis acprobis injiciant reni- publicam, seqne tel ipsns, tel hostes rebus nostris potentiores opulen- tioresqjte efficinnt. Qnibus omnibus prospicere imperantis sine dubio est officium. Marqiiardiis, de jure mercat. lib. 1, cap. \1 . de restric- tione et coarctationt cnmmerciarwn, itemqmjiire prnhibendct trans- tectionis mercium. After liavin^ shewn the right which nations have to prohibit, restrain, or augment the importation or exporta- tion of goods, he details the regulations made on this subject bv the French, Scotch, Italians, Fleming', and other nations. See, Bodi- BII5, de republica. lib. I, cap. 6 et 7. Loccenius de jure maritimo, lib. 1, cap. 4,§ 8. Vattd, Droit des Gens, lib. 2, ch. 2, § 32, et 53. Chap. III. OF EUROPE. 249 Rights of fishing are regiJated by general laws. state, and sound reason evinces that they are free, precisely because, they are regulated by the laws of the country. 4. True civil liberty, is that which secures our lives and properties, and enables us to make use of both with promptitude, and at pleasure, in all cases, not contrary to the public welfare, nor to our own individual happiness. 5. This maxim once established, it follows, that the liberty of maritime navigation should be regu- lated by those usages alone, which accord, both with private interest, and the public good. As there is no civil liberty where laws are not strictly observed, so there can be no freedom of navigation, unless it be governed by a wise system of rules, and regulations: if crimes on the sea remain unpunished, and the caprice of private interest obtain the ascen- dancy, they will soon become triumphant. 6. Though the right of fishing may be considered as one of the consequences of maritime empire ; yet the prince, or sovereign proprietor of the territorial sea, usually reserves to himself, the great fishery on- ly, or that \s hich is carried on at stated seasons of the year, and at certain places ; or, in short, some par- ticular kinds of fishing. He does not prohibit that which is carried on for the use, and to supply the wants, of his subjects. He even permits the people Vol. r. li 250 THE MARITIME LAW Part L Sovereigns reserve to tlicmsclves great fishing only. of neighbouring countries, not his subjects, to fish, when a similar liberty is granted on their part. (260) 7. Sovereigns are not in the practice of entirely de- priving their subjects of the liberty of fishing, given by nature to all mankind, as their proper right, and as a means of subsistence. This is agreeable to the observation of Seneca,(26l) approved by St. Am- brose, (262) v^'ho says, that the exchequer ought not to appropriate to itself all the fish, as if they were the productions of the field. For this reason, great fish- ing only, is ranked among the regalia of the sove- reign, and thus far only abridges the ancient and na- tural liberty of every mantime people. (263) 8. In consequence of this prerogative, it still be- longs to sovereigns to prescribe the manner, kind, and seasons, of fishing in the seas within their do- (260) Selden, Mare Clausum, lib. 2, cap, 21. Loccenius, dejure jnaritimo, lib. 1, cap. 9, n. 2. Targa. Pond. mar. cap. 4, n. 3, 4, &c. Stypman. cap. 4, n. 3, &c. " Jnhumannm a quotidiana, piscO" tura vel suhditos vel vicinos in vasto mari, licet occupato arcere." (261) Seneca, De heneficlis. lib. 4, cap. 5 et 6, ihi. Aniinalia omnis generis alia in sicca solidoque, alia in Itumido innascenda, alia per sublime dimissa, itt omnis rerwn naturce pars tributiim aliquod nobis confer ret. (262) D. Ambros. Ilexanner, lib. 5, cap. 32, ibid. 2ui piscium jura sicut x^rnaculorum conditione tibi scrtilii suhjecia commemo- rant. (263) Cujac. lib. I, Obserral, ch^\). 2. Sixtin. de Regaliis, lib, 2, cap. 18, n. 30. Chap. III. OF EUROPE. 251 Public treaties relative to fisheries. g- • ■ ■ -rr . minions. This has been done by the different states of F^urope, who forbid the use of nets, injurious to the muitipHLaiion ol fish. (264) Ahnost all nations have, in this respect, special laws to regulate fishing, and particularly to prohibit, or allow it to foreigners. Hence, public treaties have been made on this sub- ject, for the benefit of nations; such as that in 1456, between Henry VH. and Philip, archduke of Aus- tria. The English and Dutch, in like manner, are allowed to fish in the seas of Denmark and Norway : and a convention has been entered into between France and England, to fix the times and places of fishing. As to the pretended right of the states-gen- eral, mentioned in the first chapter, article V. to take fish on the coasts of the British isles, it has always been a subject of dispute between England and Hol- land.(265) 9. The liberty of fishing is subordinate to that of navigation, because the interests of mankind render the latter necessary to all, while the former concerns only a small number of persons who are devoted to it. For this reason, in the latter periods of the Ro- (264) See my discourse, on marint- fisheries, read at the public sittings of the academy at Marseilles, the 25 th July, 1802. (265) Ordonnancede France, underthe titles, duRiragc, des Pares, et des Madragues, and Valin's Commentaries. Selden, Maie Claii- sum, lib. 2, cap. 21. Stypman. Jusjnarit. cap. 4, n. 11. Sixtinus de Regains, lib. 2, cap. 18. Roussct, InierHs des Prince, p. 322. 252 THE MARITIME LAW Part I. Fishermen must not obsti-uct navigation. man power, it was prohibited, by an edict of the pr -philosophers, to mo- dern declaimers, who wish to plunge mankind again into that barbarism from which they have emerged by the aid of commerce, to affirm that it destroys morals and the political strength of nations; and that the vices attached to prosperity, have supplant- ed those virtues, and inestimable benefits, which result from the simplicity and poverty of an uncom- mercial people. The illustrious author of Telema- chus has prepared an answer to these absurdities. ** The Tyrians, " says he, " are industrious, patient, " laborious, sober, and economical ; their police is " exact, and the most perfect harmony exists among " them. No people were ever more sincere, faith- *' ful, courteous, and obliging to strangers. Such " are the means, without seeking for other causes, " by which they have acquired the empire of the " sea, and rendered the commerce of their port " so extensive, and flourishing. If jealousy and *' faction should arise amongst them, if they should " become addicted to pleasure and idleness ; if they " should sink into effeminacy ; if the great should Huet is mistaken, or too fond of antithesis, when he says that the ancients assigned commerce by land to t!ie golden, and mari- time commerce to the iron age, as actuated solely by avarice, and carried on by an unconquerable temerity. The learned M. Peu- chet, in the preliminary discourse to his Geogruphiquc coinmercante, replies to this oh,>ervation in the following terms : " Navigation is *' not originally the effect of avarice ; it arises from curiosity, and " commerce has turned to profit, this almost miraculous means of " communication between different nations." 256 THE MARITIME L AAV Part L Opinion of Fendon, 8ic. as to commerce. — Anecdote of Rousseau. " despise labour and economy ; if the arts should no " longer be deemed honourable ; if they should " cease to observe good faith towards strangers; if " they should violate, in the least degree, the laws " of free commerce ; you would soon see them fall " from that power which is now the object of your " admiration." 5. A modern economist has, also, successfully re- futed this anti-social paradox, so often repeated in our time. (270) M. Vital Roux thus speaks of com- (270) In 1777, the Academy of Mar';eille.s, proj)oser! the follow- ing prize question : "Quelle a eie dans tou% les temps, I' influence du conunerce sur l^espirt el les vuturs des peuplta." What has been, in every age, the influence of commerce on the spirit and manners ot nations ? How could a society of learned men, established in a city which owes every thing to commerce, support anJ crown by their sufFrages, a discourse, the object of which is to prove, by specious sophisms, and ingenious paradoxes, that commerce has always en- ervated the spirit, and depraved tlie morals of a nation, and is, in its nature, and effects, incompatible with great virtues?* * The aiiAver is obvious. Learned men, les savans, arc often lovers of pa- I'adox, and talie more pleasure In exercising' their ingenuity, in defending ab- si^u-d opinions, than in supporting the simple ti'uth. The following anec- dote v/ill serve to illustrate this remark, and may amuse the reader. In a convei'satlon between Marmontel and Voltaire, of which J. J. Rousseau was the subject, the former related, what Diderot once told him, of tlie pliiloso- pha' of Geneva. " I was," says Diderot, " a prisoner at Vincenncs ; Rous- *' seau came to see me. He had made me his Aristarchts, as he expressed ♦' himself One day, during a walk, he informed me, tliat the Academy of •' Dijon had just proposed an iritcrcsting question, and that he was desirous *' of discussing it. The question was, ' Has the restoration of the arts and " sciences contributed to refine manners ?' Ze retablissement des sciences et " des arts, a-t-il contribue a epurer les mceurs ? ' Well,' said I, ' which side Chap. IV. OF EUROPE. 257 Commerce promotes the liappincss of nutions. merce : " Barbarous nations, whose conquests have " so often laid waste the fairest portion of Europe, " would not have gone so far in search of un- " known wealth and happiness, if they could have " drawn them, by means of traffic, to their own •' homes. If commerce had penetrated their de- " serts, it would have transformed their vast torests *' into fertile fields, their lonely huts into pleasant " towns, and their country, thus endeared to them, " would not have been abandoned without regret. *' But what can a nation do whose sole employment " is the chase, that serves only to nourish fero- " city ? It devours itself, or vents its impatient fury " on distant objects. Society cannot exist where " labour is not necessary ; idleness is the nurse of " insubordination, that breaks forth within, or seeks " for gratification abroad ; for he who creates no- " thing, loves only to destroy. Commerce, on the " contrary, excites a love of labour ; the ease which " it produces, attaches us to our country, and thcre- " by invigorates the government ; commercial na- " do you mean to take?' lie answered, 'the aflu-mative.' 'That is,' I rcpli- " ed, 'the asses' bridge ; men of moderate talents will take tliat putli, and " you will find in it nothing but common ideas, whereas the otha- side pre- " sents a new, rich, and fertile field for philosophy and eloquence.' * You " arc right,' said he, after a moment's reflection, 'and I will follow yoiu- ad- " vice.' Thus, from that moment, his part and his mask were decided. ' I " am not at all surprised,' said VoUaire ; this Tnan is factitious from head to " foot, in mind and soul. But he has played well, at one time the stoic, at " another the cynic ; he will always betray himself, and his masque will sti. " fie him." See Oe.^.vres Posthumes de Marmontel, tom. 2, page 240, Paris, (1804) T Vol.. I.- K k 25S THE MARITIME LAAV Part L — ii4 Influence of commerce on the conduct and manners of nations. " tions direct all their attention to the promotion of " industry, because it produces the greatest sum of " happiness. Ambition, which impels barbarous na- " tions to war and devastation, inspires a commercial " people with patriotism. The happiness of the " one, is placed in destruction ; the fehcity of the " other consists in the prosperity of all." 6. As soon as the spirit of commerce acquires strength and ascendancy in a state, a new genius is seen to animate its government, to direct its al- liances, its wars, and negociations. The most de- cided proofs of this are exhibited in the history of the Italian states, the Hanseatic league, and the cities of the Netherlands, during the period which elapsed from the ninth to the sixteenth century. In proportion as commerce spread among the different nations of Europe, their views were directed towards those objects, which engage the attention of polished states, and to the adoption of the manners by which they are distinguished. (270) Commerce does not, therefore, corrupt manners, continues the learned Peuchet ; it does not produce a declension of mo- rals 3 it is not the cause of those vices which arise from increased population ; otherwise, agriculture must participate in the anathema, which is hurled exclusively against commerce, since, it may be justly, (270) See, Robertson's Introduction to the History ofChnrk.s '/. Chap. IV. OF EUROPE. 259 Commerce necessiirily connected witli navipution. and emphatically termed, the nurse of the human race, and the chief cause ot population.* 7. Commerce soon became linked with naviga- tion, by those necessary ties of correspondence, which draw towards each other different nations and countries. To derive advantage trom this union, it was necessary to establish a communication with the different parts of the world, which could not be accomplished without inventing an art, by means of which seas might be traversed. Such was the origin of navigation. 8. Navigation is one of those arts the commence- ment of which is veiled in the deepest obscurity j arts which are the tardy fruits of necessity, chance, acti- vity, experience, and pride. This idea is most hap- pily expressed by Lucretius, in three lines of his immortal poem.(271) Navigia atque agriculturas, moenia, leges. Usus, et impigrae simul experientia mentis Paulatim docuit pedetentim progredientes. Navigation having reached a certain degree of per- fection, gave wings to commerce and maritime in- * Some new and interesting views of the necessary connex- ion between subsistence and population, and its effects on the hap- piness ol" society, are to be tound in the work of Mr. Multhus, en- titled, " An essay on Population," second edition, 4to T. (27 1) Lucretius, dc natura rerim-, lib. 5, 1. 1417 — See ante p. 2, and 3, of chapter I. 260 THE MARITIME LAW Part I. Rapid progress of navigation after the invention of the compass. dustry. Man, disdaining the narrow limits of his native soil, boldly advanced into unknown seas, and with the help of. the compass, betore invented, but not brought into immediate use,(273) found out a passage to the East-Indies by the Cape of Good Hope, discovered the West-Indies, or America, and mea- sured the circumference of the globe, not to gratify a vain curiosity, but to extend the blessings of com- merce, to procure new enjoyments, and satisfy new wants. 9. The mariner's compass changed the principles of navigation. Hitherto, mankind possessed only gallies with sails and oars, a kind of vessel, at best adapted only to keep along the coast, w'hich they seldom dared to quit beyond a certain distance. Un- til this period, navigation was, according to the generally received opinion*, no more than a'sort of coasting ; but, as soon as the use of the compass waa perfectly understood, its progress was followed by a marine. Men began to brave, on the high seas, adverse winds and tempests ; to learn the course of the monsoons, to avoid rocks and currents, no longer to fear being lost when out of the sight of land, and to become masters of that terrible ele- ment that had often made them tremble. Vessels of a different size, and fit to navigate in every lati- tude, soon appeared on the ocean. Voyages be- (273) See my dissertation sur Vorigine de la Boiissole, in Uie in- troduction to tlie second edition, printed at Venice, 1797. Chap. IV, OF EUROPE. 261 Conquest in India and America, distinguished by violence and cruelty. came shorter, transportation safer and less expensive, coinmunicatiun was every where opened, commerce increased and assumed new splendour. 10. It was then that the kingdoms o£the east first saw arrive on their shores, those immense European structures, t'rom which issued men, who, from one hand, shed over the populous tribes of India the be- neficent light of Christian truth, and from the other, the destructive fire of war, treachery, and vice. Then did the Portuguese zealot erect on the banks of the Ganges, sumptuous altars, not so much for the adoration of the Divine Dispenser of all good, as of their idol, interest. Then did the rich mines of Potosi attract to the continent of America, those exterminating expeditions, made by the Spaniards, in the name of the God of Peace. Then did the tolerant Batavian, just free from foreign chains, ob- tain from Indian generosity, in exchange for his merchandize, that protection under which he form- ed batteries to thunder in the ears of amazed and too credulous hospitality. They tore bt vio- lence from the wretched inhabitants of those unfor- tunate countries, what they would have freely and liberally granted. Cupidity, ever unjust and atro- cious, made them forget that these nations were composed of men. Instead of the virtues, they were ofTcred chains, and under the pretext that they did not follow a religion of wdiich they had never heard, they were murdered, to enrich their con- querors with their spoils. M'hole nations were ini- 262 THE MARITIME LAW Part L Excesses of the first discoveries cease. — New wars. molated for their fatal contempt of the true faith, or rather, to gratify the thirst of gold, for which the in- terest of religion was but a specious veil. A por- tion of Europe was depopulated, to replace these victims of avarice, or to make new sacrifices.(274) 1 1 . At the cries of humanity, the carnage ceas- ed, and the victors contending with each other for the spoils of the vanquished, engaged in their quar- rels the nations whom they had so cruelly treated. Yet emulation and industry were reanimated. Those nations who, instead of laws, possessed a ma- rine, dreamed of nothing but the establishment of factories, and colonies in the other hemisphere. The immense seas, which nature seems to have placed between countries to separate the different nations of the world, soon became the means of their re- union, and of that mutual commerce, which, by drawing them closer to each other, may be said to make them one nation. 12r Policy and jurisprudence were soon engaged in regulating those commercial transactions, the names of which were hardly known ; the economy of navigation, which they meant to encourage ; the dangers and perils of the sea, which they were anxious to diminish or prevent ; the safety of trans- portation, which might be assured, became the (274-) The recent usurpation of the kingdom of Mysore, and the death of Tippoo Saib, sufficiently prove that men are always unjust, when actuated by cupidity. Chap. IV. OF EUROPE. 26^ Commerce and navig-ation, furnish new objects of policy and le^slatlon. most interesting and profitable objects of legislative policy ; Qt the same time, that the formation and support of harbours, the system of a military marine to protect the activity of the commercial marine, the facility of navigation, the construction and equip- ment of vessels of every kind, attracted the regards and fixed the attention of the governments of Eu- rope. 13. The science of lej^islation has embraced new objects : the regulation of the wages of la- bour, the compensation of risks, "the indemnities in cases of assurance, and in contracts of bottomry ; contributions for losses, happening by tempests at sea, in cases of jettison, or waste of goods, for cap- tures of vessels in time of war ; in a word, the prin- ciples of the various contracts of a similar nature, which grow out oi the numerous branches of in- dustry and commerce, increasing every day, by the vigilance and fostering cares of government. 14. From this period, maritime commerce has become an essential object, in the organization and existence of political bodies, and has been neglected in no wise plan of legislation j since, it is not merely the tie which unites all nations and climates, but the soul, the support, and wealth of the state ; for, by familiarising men to navigation, it forms sea- men, and facilitates those great naval enterprises which open the way to that maritime power, which at the present day, has so much weight in the ba- lance of Europe, 264 THE MARITIME LAW Part I. Increase and progress of maritime laws and ordinances. 15. In the early periods of navigation and com- merce, a small number of laws were composed, proportioned to the extent of maritime traffic ; but navigation, the only means of obtaining superiority in commerce, having greatly increased its opera- tions were multiplied, as the wants of men became more numerous ; the marine also, having put more hands to work, as its utility and benefits accelerated its progress, a greater number of regulations, and a more enlarged system of legislation became ne- cessary. 16. Hence, proceeded the great multiplicity of laws, and maritime ordinances. The first relate to objects common to all nations, and are called the laws, or the public maritime riglUs, of war and peace; the second comprehend the particular in- terests of each nation, and are denominated the laws and rules of commercial and maritime con- tracts. 17. Some of these laws, either on account of the veneration entertained for the ancients, or from an opinion of the superior wisdom of those who framed them, or from the spirit of equity which pervades them, or, in short, on account of the power and re- putation of the nation by which they v^^ere first pro- mulgated, have become the common law of all na- tions; such are the Rhodian and Roman laws. Others, on the contrary, have remained, as at first, mere local ordinances. With the aid of history and Chap. IV. OF EUROPE. 265 The Rliodians were tlie first who published maritime laws. criticism, we shall rapidly pass over the periods of their origin, and show the progress of universal ma- ritime law. ARTICLE II. Of the Rhodian Laws. § 1. THE Rhodians, as history Informs us, were the first among the ancient nations, who published maritime laws. The practice of navigation, and the different cases which arose on maritime subjects, ren- dered it necessary for the inhabitants of Rhodes to compile a body of naval laws, which breath the spi- rit of justice and humanity. Cicero extols the disci- pline of the Rhodian marine to the highest pitch of glory, and declares, that in his time, it was still the object of admiration. (275) Strabo also speaks in praise of Rhodes, which he found governed by ad- mirable laws, and especially those relative to mari- time affairs. (276) It is, doubtless, a noble sight, says (27.5) Rhodiarum usque ad nostrum memoriam disciplina navalis, et gloria remansit. Pro legeManiiia. (276) Strabo in speaking of Rhodes, lib. 14, uses the following words : Qxvfjixyn Je xjtt n tuvofj-nc, koh tTtjxtXnx tt^oo- rt rm aXXnv woXj- Kxdn>i, KxiPiifjLXiOiT tysvsTo ^jXi, &c. Tlieir excellent laws, ami the care bestowed on every part of tlieir political administration, parti- cularly in what concerned their naval affairs, are worthy ofadmira- VoL. I. L 1 266 THE MARITIME LAW Part I. The Rhodians were favoured by Alexander the Great a learned writer of the present time,(277) to behold a nation more occupied with commerce than con- quests, a small republic, ruling over powerful states, and indebted to its legislation for that vast influ- ence, which draws to its bosom citizens from every part of the world. 2. The importance of these laws, so often cited and mentioned in the Roman law, has induced me to have recourse to historical records to discover in what manner, and at what time, they were adopt- ed by Rome ; into how many chapters they were di- vided ; what were those which Justinian preserved ; and which of them still exist uncorrupted and en- tire. 3. During the war of Antigonus against Seleucus, and his allies, the valour and maritime power of Rhodes were displayed to the greatest advantage. Alexander the Great, always treated them with dis- tinction ; for that reason, they carefully avoided ta- king any part in the disputes which arose between his successors. The favour shewn them by these princes, a long peace, and uninterrupted commerce, tion ; by these the Rhodians maintained the empire of the seas for a long period, expelled the pirates, and acquired the friendship of the Romans. (277) M. de Fastoret, in his excellent Dissertation siir Vinfiuence des his inaritime.^ des Rhodians, which gained the prize of theKoy- al Academy of Inscriptions and Belles-Letttes, in 1784-. Chap. IV. OF EUROPE. 267 Rhodians faitliful to Ptolemy, are attacked by Demetiius. rendered them so powerful, that, without any foreign aid, they undertook to rid the sea of pirates. Their maritime situation, w hich, on account of the support they derived from Egypt, rendered their commerce with that kingdom equally necessary and advanta- geous, induced them to remain laithtul to king Ptol- emy. Antigonus wished to force them to take part with him, and to open a free communication with their island, during his war against Egypt. They refused this request with firmness, resolving to suffer every extremity, rather than to abandon their ally. They sustained, in consequence, for a whole year, a most dreadful siege, carried on by his son Deme- trius, the most experienced and most skilful general of the age in the attack of maritime towns, and whose personal talents, in this conflict, appeared more formidable, than tlie naval forces which fol- lowed him, consisting of above four hundred sail of gallics and other vessels. The Rhodians were com- pelled at last to make peace with their courageous adversary, but their valiant resistance procured them favourable terms. 4. AVhen Rome was preparing to conquer the east, the Rhodians dreading the victorious ensigns of that enterprising and insatiable republic, gladly united with her and became her friend. They ob- served the same conduct towards Rome as they had done towards the successors of Alexander, and v/cre jealous of preserving their friendship. This alliance separated them from their connexions with Philip of Q6S THE MARITIME LAW Part I. Alliance between the Romans and Rhodians. — Rome adopts theii- laws. Macedon, and Mithridates, which were less to their advantage. It was at this time, that the Romans had an opportunity of being acquainted with the mentor the naval jurisprudence of the Rhodians, which they after vsards adopted. Their maritime laws were received at Rome, not as other Greek laws engra- ven on twelve tables, and which were engrafted into the Roman code, after they were solemnly re-en- acted by the people, but were held in such high ven- eration, that they always retained their original name, without being inserted in the twelve tables. They were not even inscribed in the books of the prsetor, and they gave rise to no action ; but the opinions of lawyers were founded upon the Rhodian law dejac- tu, although it was not clothed with the sanc- tion of the people, in conformity to which the judges were bound to decide. The lawyers, Servius, Labeo, Ofilius, Alfenus Varo, and Sabinus,* are the first * Servius Sulpitius, the friend and companion of Cicero, saw the last da^fs of the repubhc. Antistius Labeo, OfiHus, and Alfenus Varus, lived under Aujj;»stus. The latter was a shoemaker of Cre- mona, who, discarding his occupation, went to Rome and attached himself to the school of Servius. His eminent virtues, and great knowledge of the law, raised him to the consulship, and he died loailed with public honours. Horace, who was the flatterer of Au- gustus, whom Labeo despised and hated, as the destroyer of the li- berties of his country, thus satirizes him. Laheone insanior inter Sanos dicatur. Hor. lib. I, sat. 3. Chap. IV. OF EUROPE. 269 Aufmstus sanctions the Rhodian laws. who have taken notice of these laws; and whenSer- vius gave the celebrated answer, that will be men- tioned in its place, the Roman lawyers had not yet received from Augustus, the authority, in consequence of which the judges were no longer allowed to evade the provisions of the Rhodian law. 5. Augustus was the first who gave to these laws a Roman sanction. He wished them to be ob- served, in the same manner as the Julian law, pro- mulgated by him. This appears from the ninth law of the Digest ad legem Rliodiajii de jactu.^' The emperor Antoninus, solicitous to determine a maritime controversy, answered, that it must be de- \/ cided, in that and similar cases, according to the law of Rhodes, the mistress of the sea, whenever it was not contrary to the laws of Rome, since it had been so settled before by Augustus. To Alfcnus, the poet applies the lash wilh a gentler hand : ut Alfcnus xaftr, omni Jhjecto instrumento artis, clausaque taberna, Suior erat ; sapiens operis sic optimus oinnis Est opijex, sic solus rex. Ibid. Masurius Sabinus was first noticed by Augitstus, and lived (o be neglected by Adrian. Gravina, de ortu ct progrtssu juris cizilis, lib. 1, § 64-, 67, 70, 72, 73, 80 T. * Dig. lib. 1+, tit 2, see infra, note, the latin translation of the Greek text of Volusius Mecianus T. 270 THE MARITIME LAW Part L Law of Mecianus in the Digest 6. Whether this answer be nothing more, as Godefroi supposes, than a reflection of Volusius Mecianus,* who reports the decision of Antoninus, or whether it be, in fact, a part of the answer I itself, according to the custom of the emperors, i to recur to the decrees of their predecessors, as Bynkershoek maintains, it is certainly true that Au- gustus solemnly recognised the Rhodian law, as that of Rome, by making this law, which possessed at first an authority merely conventional, vague, and uncertain, stable, legal and authentic. 7. A law so respectable, which, notwithstanding its great antiquity, still exists, was probably re- ceived at Rome, not only on account of what re- lates io jettlsoiJ, made by a ship in case of a storm, but to all otlier events happening at sea, excepting such as had already been decided by the Roman laws. The same law that has preserved the rescript of Augustus, affords grounds to believe that it was adopted entire by that prince. In fact, the case of vvhich that law treated, did not relate to jettison, but to shipwreck; and the answer of Augustus, which is general, and attributes to the Rhodian law the empire of the sea, proves that many ot its regula- tions were then acknowledged at Rome. * Volusius Mecianus flourished under Antoninus Pins, who held his opinions in t'a;; highest estimation. Gravina, ibid, Ub. 1^ 93. ...T. Chap, IV. OF EUROPE. 271 Harmenopulus and Domitius affii-m tlie authority of the Rhodian law s. 8. Constanstine Harmenopulus, a writer of the 14th century, has explained, in this sense, the pro- vision of this law, in his Proniptnan'mn, tit. 2, lib. 2.* He, there, proves that all maritime controversies ought to be decided by the regulations of the Rho~ dian laws, in all cases not contrary to those of Rome, since they were naval laws ; this is what he establishes, in his account of the law 9, just men- tioned. Docimius, or Domitius, in his book deJu?'e, says, that all maritime affairs, which are presented for decision, must be adjudged and determined by the Rhodian laws, whenever they are not contrary to those of Rome ; for, besides being the most ancient naval laws extant, the greater part of them are excellent, and there is nothing in the rest de- serving of censure. 9. The celebrated CujAsf maintains, that in all maritime questions, the Romans ought to adhere to * Vinnius, Note ad Comment. Peck, ad legem Rhodiam, p. 189, quotes the Greek passage from Harmenopulus, lib. 2, tit. 1 1, and refers to ihcjus Grceco-Rom. lib. 2, of Docimius. He remarks, that the Rhodian Laws were considered as the law of nations through- out all the Mediterrantan T. f Jacobus Cujacius was born October 1590, at Tolosa, a (own of Biscay in Spain, and tlied in his 60th year. Gravina remarks of him, that had he lived in an earlier age, lie would have starved, instead of all the other interpreters of the Roman law ; " Nt(jite e/iim aliyiiid tg- 7iorare per ilhwi, ntque sine illo discere (juidquuTn iicet." De ort. et progjur. civ. lib. I, § 180 T. 272 THE MARITIME LAW Part I. Opinion of Cujas on tlie Rhodian laws. — Other opinions. the laws of Rhodes, if there is no particular law ex- isting to the contrary ; and this in conformity with the directions of Augustus, expressed in the 9th law of the Digest, above cited. He adds further, that in different codes, after the words ad legem Bliodiam, is read, de nautids, and he affirms, that the Romans borrowed from the Rhodians many laws relative to navigation. 10. I take no part in the opinion of those who maintain, that all the laws of Justinian on the sub- ject of shipwrecks, and other maritime affairs, be- sides those included under the title of the law Bho- dia de Jactn, are taken from the ancient Rhodian Jaws, at least as to the substance, though expressed in different terms. They even pretend, that the actio exercitorial is derived from those laws. I am not disposed to disbelieve this fact, so much am I persuaded of their real excellence, and of the veneration in which they were held by the Ro- * In the Roman law, the owner or employer of a ship, Avas termed exerciioi-, and had the appointment of the magis^ ter, or master, who had authority to make contracts in relation to the ship, which were binding upon the owner, or employer, against whom an action might be brought on such contracts, or even for the faults of the master, which \\ -dscaWed, actio exerciloria. Dig. lib, 1 4-, tit. I , leg. \,et 15. Roccus, de naribus et naulo. Not. 3, et 1 1, &c. Peckius, ad rem nauticum, p. 2, et 69. The same principle pre- vails in ttie laws ot Englani, and other commercial countries. Mol- loy, de jure maritimo, book 2, ch. 2, § 14. Guidon, ch. IS, art. \. Pothier. Chart, part. § 2, art. 3 T. Chap. IV. OF EUROPE. 273 Did J'istinian adopt tlie whole, ok a part only of tlve Rhodian laws ? mans ; but as there is no solid reason to adopt an opinion, that can be supported only by conjecture, it does not appear right to decide positively on a fact so uncertain, when it is my business to weigh the sentiments of others,' the better to explain my own; more especially, as Justinian, by preserving the name of this law, in relation only to a single sub- ject, de jactu, appears to have intended to retain the Rhodian laws, which relate to that matter, and not any others. II. Justinian was pleased to adopt that part of the maritime jurisprudence of the Rhodians, that relates to goods thrown into the sea, during a storm, or in case of imminent danger of shipwreck, and to preserve the laws with their name. It is surprizing, after the praises bestowed by him on these laws, that Justinian should have wished to retain only one title of them, as if he had rejected the rest, or that all the Rhodian laws should be comprised in a sin- gle chapter. 112. Amidst this obscurity of facts, and the silence of ancient writers, I do not hesitate to say, that among all the possible events incident to navigation, that of jettisoUy being the most frequent, and the most ge- neral, on account of the accidents continually hap- pening to navigators, Justinian considering, per-* haps, that this matter had been eminently well set- tled by the Rhodian law, adopted and preserved it, Vol.. T. M m 274 THE MARITIME LAW Part I. Rescript of Antoninus, referring to tlie Rhodian law. with the intention, that all other cases should be de- cided by the Roman laws. 13. Yet Justinian, who meant to preserve only the single chapter de jacf.u, has, in law 9, intro- duced a rescript of the emperor Antoninus, who, in a case of shipwreck, and not of jettison^ refers the affair to be decided by the Rhodian law, which he wishes to be followed in cases where there was no law of Rome to the contrary. (27 8) It appears, then, that this law concedes to that of Rhodes the empire of the sea, and does not restrain it to the single case o^ jettison ; but, vs ithout taking it in the same sense with Tribonlan,* who, according to his usual tribo^ (278) Leg. 9, Dig. (lib. 11-, tit. 2.) /.d legem Rhodiaju de jactu. Deprecatio Eudiemonis Nicomediensis ad Antnnlnum hnperatnrum. " Domine hnperator Antonine, naufragiu7n in Jtalicefacientes, direpti swnus a pu'.di ranis Cyr lodes Jnsulas habitaniibus." Respondit Auto-' ninus Eudivmoni. " Ego quidem Mundi Dominus, lex autem maris lege id H/todia, quK de rebus nnidicrs pr(cscripta est, jiidicetiir, qua- ienus nulla nn.strarum legum adiersatur. Hoc idem Divus qiioque Au- gustus judicurit." * Tribonian, the favourite and oracle of Justinian, was employed, with nine other lawyers, by that emperor, to digest the immense mass of Romaic laws into one code; which was accomplished in three years. This extraordinary man, for profound and various learning, a^ well as for his avarice and meanness, is compared by Gibbon, to Lord ^Acon.— Gibbon's Decline and Full, ch. 44. Tri- bonian has been greatly censored by modern writers and interpre- ters of the Roman law, for the choice he has made for the Digest aiiu Code ; and ail the errors and contradictions to be found in the Pandects, the Institute and Code, the faults of arrangement, and Chap. IV. OF EUROPE. 275 Tnbonian's conduct as to this law. — Cicero refers to the Rhodian law. m'a/iis?n, appears to have inserted the law of Me- cianus vvitlu ut attending to the title under whicii he placed it, it may be said, that this lawyer, in order to give an idea of the Rhodian law, from which he has extracted ten laws, wished to make it appear, that t!ie regulations ot that law, as well as its name, had bcvn adopted by Augustus, and by Antoninus. Justinian, for that reason, transmitted it, in part, to posterity. Certain it is, that, as far as the title, ad le'^cm Rhodiam de jadu, appeared new and curious, it would have remained obscure, if the 9th law, which forcibly explains it, had not been inserted. I'k The ancients have spoj^en of the Rhodian laws, and liave pointed out some, which arc not to be found in the Roman compilation. Cicero men- tions a case decided by those laws, according to which, if a ship of war^ is found in port, it ought to be confiscated. Men ot learning have thought this a case imagined merely for the sake of declamation. other defects, are charged upon him alone. Hottoman, the most violent of his censurers, says he poisoned and corrupted every an- cient law that he touched ; and Gibbon observes, that " llie favour- ite of Justinian was fearful of encountering the hght of freedom, and the gravity of the Roman sages." He is praised by Cujacius, and defended by Gravina: De ortu et progressii juris civilis, lib. ], § 137 T. * Nan's rostraia, so called from having its stem covered with a sharp beak made usually of brass. The words of Cicero are. Lex est apud liliodios, ut, si qua rostrata in porta navis dtprehensa sit, publicetur. Dclnvcntione, lib. 2, cli,32 T. 276 THE MARITIME LAW Part L The Rhodian naval laws, the most ancient which aic known. Strabo speaks of another law of Rhodes, that con- demned to death whoever dared to go within certain naval arsenals in that island, which were impene- trable to the common people ;(279) but he does not mention the reason why they guarded, with such severe vigilance, some, and not all of their arsenals. 15. It is generally agreed, that the Rhodian are the most ancient maritime laws, of which u e have any knowledge ; it is not known, whether the Phoe- nicians, the Carthaginians, and other nations, for- merly celebrated for their commerce, have ever published any. The ancient historians have pre- served no trace of them, as they have of the Rho- dian laws. Perhaps, as the Phoenicians, in the flou- rishing periods of the Roman power, had no longer any great reputation or commercial credit ; and Rome, not considering herself safe, while the walls and name of Carthage existed, she neither deigned, nor wished to preserve the maritime laws of those two nations, even supposing any to have been pub- lished by them. 16. The Rhodian laws, therefore, whatever may be the period of their publication, are the fountain (279) Strabo Geograph. lib 14, Tjva xai y.^vxix nv, y.ai ocxo^^rt^a, Tcto- TToPvAots" r-jj ^£ /CKTOTTrjo-avTJ 11 Ta^EXGovT* EK7i', Soivaroc- w^jct-te *j (r.^iOi,. Some things in their nav) -yards were kept concealed, and were forbidden to be seen by the common people; and if any person was found inspecting them, or inside of the works, he was immediately pvinished with death. Chap. IV. OF EUROPE. 277 Scardius and others publish laws iindtr the title of Rhodian. of maritime jurisprudence. Tiiere is no foundation for the supposition of P. Tournier, in his treatise on Hydrography, book 5, chap. 4, that they were published at the time when Jehosaphat reigned in Judaea, that is, seventy years after Solomon. 17. There exists, at the present day, a collection of maritime laws, under the title of the Bhodian laics, published at Basle in 15G1, by Simon Scardius, with the laws relating to husbandry and military affairs, by Justinian II, and afterwards, at Frankfort, in 1596, by Leunclavius and Marquard Freer. It is to be found at the end of the second volume of the Greek and Roman law, obtained from the library of Francis Pithou. The title of this collection im- ports, that they were taken from the 11th and 14 th books of the Digest, without mentioning, however, whether it is the Digest of Justinian, or that of the ancient Rhodian laws, divided into different books. 18. Such is the collection, known at this time, under the name of Rhodian laics. From a regard to that title, so respected by the ancients, they have been considered as the first maritime laws. They have, however, been variously considered by dif- ferent learned men ; some regarding them as genu- ine, others condemning them as spurious and apo- cryphal. Simon Scardius, by whom they were first published, considered them as authentic. Cujas 278 THE MARITIME LAW Part I. Opinions of various ^STiters as to the Rhodian laws. cites them as Rhodian laws. Leunclavius* and Marquardijs Freer, f a short time after .^ards, ex- press no doubts concerning them. They are also comprised among the Basilica,'^ published with notes by Ch. Annibal Fabrot,§ at Paris in 1648. (tom. 6, \iv. 3) tit. 8.) Selden, in his work, de do- minio mariSy in extolling the Rhodians, and their naval laws, says, they were in credit at Rome, in the time of Tiberius, and cites the Greek and Ro- man law of LeunclaviuSj which is the compilation just mentioned. * John Leunclaviiis, a native of Westphalia, died at Vienna, in 1593, at the age of sixty years. He was of a noble family, and pos- sessed great learning. He published many works, among which are, an abridgement of the Basilica, and a volume entitled, DeJure Gr(£co-Ro/naiw T. f Marquardus Freer, was born at Augsburg, in Swabia, in 1565. He studied under the celebrated Cujas ; and died in 16 1 4. He was distinguished for various learning, and his acquaintance with polite literature. His works are voluminous, and some of them much es- teemed T. t Basilica. The Pandects^ Code, and Institutes, were translated into Greek, and abridged into forty books, by Basil I. A. D. S8S, which became the law of the eastern empire, to the entire ex- clusion, of the latin codes of Justinian ; to sink the name of that emperor, and elevate his own, Basilgave them thename o^ Basilica. Twenty books were afterwards added by his son Leo VI. and the whole have been known by tlie Greek appellation. Gravina, De ortu et progressu juris civilis, lib. 1, § 138. Gibbon's Decline and Full, &c. book 48. See article 6, post T. § Charles Annibal Fabrot, was born at Aix, in France, in 1580, and filled the chair of professor of law, at the university in that Chap. IV. OF EUROPE. 279 J. Godefroi and Vinnius speak of the Rhodian laws. 19. James Godefroi, in his work,* entitled, dc domiido maris, supported by the 9th law de jactiiy labours more than all the rest to give them authori- ty, and to exalt their merit. 20. Arnoldus Vinnius,f who published with so much reputation, commentaries on Pctrus Peckius,J on the titles of the Digest and Code, which treat of maritime subjects, omitted in the first edition, printed at Leyden, in 1647, what is found in a second, print- ed at Amsterdam, in 1688. In this last edition, he has inserted the naval law of the Rhodians, which concludes the second volume of the Greek and Ro- place. He was a man of immense erudition. His translation of the Basilica filled seven volumes folio, and he compo'^ed a great many works besides. He published a revised and corrected edi- tion of the works of Cujas, with learned and curious notes, in ten vols. fol. He died in 1639 T. * The two Godefroys of Geneva, were men of great learning. The elder made numerous notes to the books of the civil law, but is reganu'd by Gravina as a man of more learning than acuteness. The younger, lor abstruse erudition, choice knowledge of the law, and soun i juiigment, is ranked among lawyers, as second only to Cujas. Gravina, lib. 1, § 183 — See note ante, page 215 T, f This distinguished man, so well known for his admirable com- mentaries on tlie Instituies of Justinian, was born in 1387. He was professor of law at Leyden, and died in 1657 T. ♦ Peter Peckius, was a native of Ziriczee, a town in the province of Zealand, and died in 1589, at the age of 60. He was professor of law for 40 years in the university of Louvaine, in the Austrian Brabant T. 280 THE MARITIME LAAV Part I. Opinion of Vinnius and others as to the Rhodian law. man law, and he adds, that he believes that he has thereby given greater value to his work, because, in that collection, are to be found many excellent things, very useful to be known by those who treat of maritime affairs. He affirms, afterwards, that Peckius was unacquainted with them, and that this treasure was, perhaps, still buried in the library of Francis Pithou. He had, notwithstanding, before him, another Greek manuscript, which contained a certain naval law of the Rhodians, given to him by William Goesius, and who had taken it from the library of Nicolas Heinsius ; but this manuscript, in several places, differs from that of Pithou's ; and Vinnius has not tailed to point out the difference. 21. James Andrew Crusius, maintains the au- thenticity of these laws; and Gravina,* following the opinion of Godefroi, adopts, without hesitation, every thing which is said in the preface, and in the collection, which bears the name of Rhodian laws. 22. Francis Baldwin, In his commentary on the Voconian, Falcidian, Julian, Papia-Poppean, Rhodian, and Aquilian laws, and upon the Miidan jurispru- * John Vincent Gravina, was born at RoglianOj in the kingdom of Naples, in 1 664-, and died at Rome in I' 18. He was a poet, orator, and man of letters, as well as a learned lawyer. He was the friend and patron of literary mst Codicam Justininvi rcpctitce prarhrfion'fs prowul- gat, cap. 3, 4. Lib. 16, 17 T. Voj . r. •> ^ 322' THE MARITIME LAW Part L Maritime laws in the Basilica, taken from the Digest and Code. book, several maritime laws, comprising six titles, on this subject. 3. The first is, De nmiticis obligationibusy et omiiis generis aclionibus^ qua nomine naviimi, et omnium in eis navigaritiumi exercitoruju, magistrorum, nauta- rum, mercatorum, reliquorumque, vectorum instituun- tur, et denaufragio. This title includes five laws taken from the Digest, and Code of Justinian. The first is the same with that of Ulpiari, and found in the Digest, under the title of nautct, caupones, sta- bidarii. The second is by the same lawyer, and taken from the first law of the title, de exercitoria actione. The third is of Paulus, and founded on the 6th section of the 26th law maiidati, in the Digest. The fourth is of Ulpian, from the 11th law of the Digest, lib. 47, tit. v. furti adversus nautas. And the fifth is the fourth law of the Code, de institoria^ et exercitoria actione, lib. 4, tit. 25. 4. The second title is, de nave vindicanda. It comprehends three laws of Ulpian, which are, § 1, law 13, lib. 19, tit. 2. of the Digest, locati ; law 27,. §15, digest, lib. 9, tit. 2, ad legem aquiliam ; and law 29, § 1, of the Code. The fourth is that of Labeo, and is extracted from the law 29 of the Di- gest, de instrumento legato. 5. The third is, de naufragio, et jactu, et colla- tione. It contains several laws : the first and se- cond, of Paulus, taken from laws 1 and 7 of the Di- Chap. IV. OF EUROPE. 328 Various maritime laws in the Bastlica. - ' "• gest, ad legem Rhodium ; the third and fourth are of Julian, talvcn from law 6 ; the fifth, of Paul, taken from law 7 ; the sixth is of Julian, taken from law 8 ; the seventh, of Ulpian, taken from law 43, § 6, of the Digest defurtis ; the eighth, of Javolenus, taken from law 21, § 1, Digest de acquirenda possessione ; the ninth, of Ulpian, taken from law 7, and those which folio A in the Digest, lib. 47, tit. 9, de incen- dio, &c. ; the tenth, of Caius, taken from law i. Di- gest ad legem Juliam de vi privata ; and the last, of Caius, de incendio, &,'c. 6. Tlie fourth title is, de nauticofivnore, and con- tains the law of Pomponius, 1. 24, § 3, Digest, lib. 3 1 , rfe legatis, 1 . 7. The fifth title, de naittieofivnore, is composed of five different laws : the first of Modestinus, taken from law 1 of the Digest, lib. 22, tit. 2, de nautlco fanore i the second is the 2Gth law of lib. iv. tit, 32, of the Code de usuris ; the third is the second law of lib. iv. tit. Z'i , q'( ihc CoAq de nautico fivnore i the fourth is of Ulpian, and is the 5th lawof the Digest, lib. XX. tit. 3, qui potiores in jyignore i and the fifth is also of Ulpian, the 6th law, § 1, of the same title in the Digest. 8. The sixth title is, de piscaforibus, et de pisca- lioney ac de jure maris. This title contains a single law of Ulpian, taken from the 13th l^w, § 7, lib. 47^ tit. 10, of the Digest de injur i is. 324 THE MARITIME LAW Part I. Maritime laws of the emperor Leon. 9. The eighth title contains forty-eight chapters, which compose the supposed law of the Rhodians. There are four laws ; one taken from the second title of the 1 1 th book of the Code ; the other from the fifth title of the same book ; the third and fourth, from the 1st title of the 12th book, and from the 9th title to the 14th of the 47th book of the Digests, in which more is said of maritime laws. ARTICLE VII. Of the Laws promulgated by the Kmperor Leon. § 1 . THE laws and constitutions of the emperor Leon, mentioned in the preceding article, some of which relate also to maritime subjects, merit further notice. 2. The 56th constitution repeals the 7th section of the 13th law of the Digest, de injiiriis, etfamosis li~ bellis, and fixes the nature of the action, which the owner of lands, situate along the sea, may have to prevent persons from fishing within the bounds of his property. It gives to every lawful owner of such land, the right of prohibiting any person from fishing on the banks belonging to him, without his per- mission. 3. The 57th constitution prescribes the distance into the sea, at which the fishermen may mutually Chap. IV. OF EUROPE. 32: Mai'itime constitutions of the emperor Leon. fix their stations, and which is at 365 Roman paces. 4. The 64th constitution annuls the 3d law of lib. 4-8, of the Digest ad legem Corneliam, de sicariisy which condemned to death those who secreted ef- fects belonging to a wreck, and commutes the pu- nishment of death for a line oF fourfold the value of the goods. 5. The 102d constitution directs, that if any per- son is desirous of occupying a station for fishing, and has not land sufficient for that purpose, he may com- pel his neighbour to enter into partnership with him, and to cede to him as much land as he wants. 6. The 103d constitution declares, that in case of such partnership, the person who has thus ceded a small portion of land, shall share an equal propor- tion of the profits of the fishing with him who has ceded a larger portion, because the gain is not, in this case, produced by the greater or less quantity of land occupied in the fishery, but by the industry and labour of the fishermen. The well known principle of partnership, that the profits must be di- vided between the partners in proportion to the ca- pital which each has put into the partnership stock, does not apply to this case. S26 THE MARITIME LAW Parti. m ■ — ~^ ^^^^= - rr.- Antiquity of the Consolato del Mare. . . V ■ '■ ■ - . ■ .. . ■ , ■ TA ARTICLE VIII. Of the Laws of the Consolato del Mare. § 1 . AFTER the Greek and Roman, the most an- cient and the most celebrated laws, relative to com- merce and navigation, are those contained in the Collection, so well known, under the title of // Co?i^ solato del Mare. 2. From its first publication, the Consolato del il/are became the common law of all the commer- cial nations in Europe, who submitted to its authori- ty, because it comprised all the laws and usages of maritime cities. For this reason, it was universally adopted and respected as an invariable law, calcula- ted to maintain plain dealing, and good faith, in all commercial transactions. (294) 3. After the most irrefragable evidence of the high respect, in which the Consolato del Mare, has been held at all ages, it is easy to see how unfound- ed are the censures cast on this Code by Hubner, in his book, de la saisie des bdtimens neutres. He calls it a shapeless mass, and ill-digested collection of ma- ritime, and positive laws, and of the particular or- (291') Vinnius ad Peckium, in lege 1, Dig. ad legem Wiodiavi. — Card, de Luca, de Credito, disc. 107, n, 6.— Casaregis, de Com- inercio et Merc. disc. 4, n. 14, disc. 6, n. 14; disc. 19, n. 3, and disc. 213, no. 1 1 and 12. — Lubeck, dc jure aiarice, p. 110. — Ta»^- ga. Ponder. Maritime, cap. 96, § 3. Chap. ir. OF EUROPE. 327 Illfoundal opinion of Hubner concem'uig this Code. dinances of the middle and dark ages, mixed with a compilation of local adjudications. "These ordinances," says he, •' may bind the subjects of those who made them ; but, as they are only parti- cular regulations, their authority extends no further; they have now become obsolete, and are no longer binding on any person."* * Hubncr, de la aaisie dcs hdtimens neutres, dvncours prelitm- vaire, p. 1 I . His words are, " J'ai mis au rang cle masses intormes dans cette partie, le livre intitule, Le Considat de la Mer, qu'on allegue quelqucfois comme une autorile, quoiqiie ce ne soit qu'un amas, ou un recueil assez mal choisi, de loix maritimes et posi- tives, et d'ordonnances particuliers du moyen age, ou de siecles peu eclaires, jointes a une compilation de decisions privees comme elles ne sont partlculieres, elles m'ont jamais pu obliger qn'eux, et comme elles sont acluellement surann^es, elles n'obligent pas personne. Pour ce qui regarde les decisions, elles ne me pa- roissent absolument bonnes a rien dans la pratique ; surtout n'etant pas seulement motiv^es, ni mcme failes dans un temps, ou Ton scflt ce que c'est qu'un commerce intelligent, ou la manutention d'icelui."....T. Against this opinion of Hubnermay be cited Casaregis, Emeri- gon, Valin, and the authors mentioned in this learned disquisition of Azuni concerning the origin of this celebrated Code. Emerigon has probably touched the true spring of this petulant decision of Hiibncr. " Cet auteur," he says, " ayant trouve, dans le chapitre 29+, des decisions contraires a son systeme, a e(e de mauvaise hu- meur centre I'ouvragc entier ; mais s'il I'eiit examine avec quelque soin, il se seroit convaincu que les decisions qui le Consulat ren- ferme, sont fondees sur le droit des gens. Voila pourquoi elles re- unirentles suffrages des nations; elles ont fourni une ample matiere aux rerlacteurs de I'ordonnance de 1681 ; et malgre I'ecorce goth- 'fjue, qi'.i les eiiveloppe quelquefols, on y admire I'esprit de justice 328 THE MARITIME LAAV Part L Unworthy motives of Hubner in his censure of the Consolato del Mare. 4. It is easy to perceive the weakness of those motives which induced him to oppose the general opinion, and that admiration of the spirit of justice and et d'equite qui les a diclees." — Traite des assurances, preface, p.S. In speaking of the different collections of laws made use of in compiling the celebrated Marine Ordinance of France, Valin re- marks, " Apres les loix Romaines les plus anciennes, comme le plus fameuses, que Ton connoisse sur le fait de la navigation et du commerce maritime, sont celles comprises dans une collection qui a pour titre, il consolato del 7nare, &c. C'est une compilation des anciennes lois maritimes, servant a regler la police de la navigation, et tout ce qui appartenoit alors au commerce dans le mer du Le- vant." He adds, that the original work being a mixture of Spa- nish, Catalonian, and Italian, he has never seen, but only that ot Venice in 4to, in 1576, and another in 1539. Hubner says he never saw the original work in the Catalonian language, but that a translation of it had been made into Castilian by Francisco Biaz Romano, printed at Valencia in 1539, and the Venetian edition of 1576. It is from the Italian editions, that Casaregis has taken his text, which he has illustrated by a valuable commentary. The title of his work, which 1 have examined, is, 11 Consolato del Marc, colla Spiegazione di Giuseppe Maria Casaregi, Auditore delta Rota Florentina, e Consigliere di Giustizia di S. A. R. In questa prima Veneta impressionc oltre tutto cib che s'attrova nell' edizione di Fi- renze, e di Lucca azgiontivi molte Leggi delta Serenissima Repubbtica Venezia attinenti alia materia. Con il portolano del Mare. Ve- nezia 1737. There appears to be no English translation of the Consolato del Mare. Dr. Robertson has published a translation of some pas- sages, particularly the 27 3d chapter. Some wretched translations have been made into French, in mentioning which Valin observes, " it is a pity that a collection so valuable and so useful tu all those i Chap. IV. OF EUROPE. 329 Emerjgon and others refute the opinion of Hubner. equity which dictated the laws to be found in the Consolato del Mare. He is justly reproached by Emerigon, in the preface to his treatise on marine assurance, that, because he found in the 274th chap- ter* of the Consolato, a decision contrary to his own system, he became irritated against the whole work ; but had he read it with attention, he would have been convinced, that the doctrines it contains, are founded on the law of nature and nations, and de- serve the respect of the most civilized states. Such, also, is the opinion of the most celebrated waiters on maritime subjects. (293) who are led to the study of maritime laws, has not hitherto met with a better translation ;"and he adds, " that a celebrated lawyer (Emerigon) had commenced a new translation enriched with notes, to illustrate the text, and with observations relative to the regula- tions of the ordinance, and the existing usages ol commerce." — Whether this translation was ever finished by his learned, liberal, and candid friend, I have not been able to learn. Considering the importance attached to this celebrated work, by all the maritime courts of Europe, it is to be wished, that Dr. Robinson would give an entire translation of it into the English language T. * This in some editions is the 273d, and in others, the 275tli chapter T. (295) Vinnius, in Peck, ad leg. 1, de lege Rhodia, Dig. p. 190, speaks in these terms ; Apparet quoque ex scriptoribus, qua His- panis, qu(e Italis, Gallis et Anglis, bonam partem legem, quibus hodie ad res maritimas iiiuntur, dempromptam esse ex libro consulatus, qui irtale S. Ludoxki scripius dicitur. Casaregis, de Cotnmercio, disc. 2J3, n. 12. also observes, Consulatus maris ii inateriis inarHimi»,, Vol. I. Tf 330 THE MARITIME LAW Part L The Consolato contains the best maritime laws cf tlie age. 5. The language used by some learned christian bishops to the etnperor Julian, the apostate, might be applied to Mr. Hubner. That prince, speaking with contempt of the doctrine of Apoliinaris, they answered, " You have read, hut you have not under- stood ; for, if you had understood, you never zvould have censured him.^'* 6. The Consolato del Mare comprises 29-1- chap- ters. From the 1st to the 44th chapter, it treats only of the forms of judicial proceedings in the court, and by the consuls of Valencia. (296) In the sub- sequent chapters will be found the best laws that existed, and which were settled, at the time, by men of great experience, and consummate prudence, who, with no other guide than reason and custom, made those excellent regulations concerning naviga- tanquam universalis consiietudo hahens rim legis, inviolabiliter atten- denda, est apiid omnes provincias et nationes. Lubeck, de jure avariai, p. 1 10, says also, Cfcttrum 07)iniuinfert gentium leges et con- suetudines maritimas collectas, et in cceieris capitibus dispositas, ri- dere licet, in eleguntissimo libra, qui vacatur Consulatus Maris, ex- lingua Italicu in Belgicain translatus. * I^gisti, sed non intellexisti ; si enimintellexisses, naji improbasses. ApoUinaris was bishop of Laodicea. He maintained the doctrine of the divine incarnation. See Masheim's Ecclesiastical Histoiy, Vol I. p. 422 T. (29f>) In quoting the Consolato, I have followed the edition of Venice, with the explication of Casaregis, printed in the third vo- lume of his work?, in folio. Chap. IV. OF EUROPE. Origin of the name Consul among merchants. tion, and maritime contracts. As we proceed in the •^examination of this valuable book, we observe in what manner the master or captain of a vessel ought to conduct towards his sailors, the passengers, the owners of the vessel and the cargo, and what are their respective obligations towards each other. 7. The name of consul, so common among the Romans, was given, in the times of low Latin, and during the middle ages, to different magistrates of other nations. This appellation was conferred more particularly on those persons who, in seaports and large commercial places, were appointed to de- fend and protect the rights and property of mer- chants, settled, or residing in foreign countries. A charter of James, king of Arragon, in 1268, by which he grants to the inhabitants of Barcelona, the power of choosing consuls in countries beyond sea, alludes to this title. (297) Guido, king of Jerusa- lem, about the year 1190, had already given to the people of Marseilles, the right of electing at Accon^ viscountSy or consuls, of their nation, before whom all disputes arising between them and foreigners, were to be brought for decision. Ducange, in his glossary y at the word consul, makes the same re- mark, and cites, in proof, the Consolato del Mare, printed at Venice, in 1576, in the Italian language. He relates, that the magistrate of Pisa, who resided (297) Collection. Diplomat. Lspanola, n. QIO, p. 560. 532 THE MARITIME LAW Pari I. OfRce of consul among the Pisans and others. at Constantinople, was called consul, and at Venice, bajolo.{29S) It maybe seen, besides, in the chroni- cles of Pisa, that there existed, before the tenth century, a supreme magistracy in that republic, under the name of Consuls, or Consuls de Vart de la mer. 8. Among the Saracens, the admiral was the su- preme director of every thing concerning the marine, or naval armaments. This dignity was, at that time, termed the consulate, and we find in the eu- logy of Toledo, that this expression is used in the same sense. 9. In turning over the laws of the Visigoths,(299) it will be seen that the controversies which arose among foreign merchants, were decided by their own judges, called at that time Tolonarii, or the Bailiffs and Priors of merchants. (300) In the commercial towns of the Hanseatic confederacy. (298) Charta Guidonis Res;is Ilierosolym. anni 1 190, apud Gues- •nejam in Aimalibus, Massil. Codinus de officiis, cap. 7. n. 9, and Gregoras observes, Pisanorian magistratum qui Constantinopoti de- gehant Consulem appellatum, qui apud Venetos Bajulus dicebatur. (299) Lib. 11, tit. 3, § ibid. Si trans?nartni negociatores , intei^ se causam habuerint, nullus de sedibus Visigolhce regum eos audire prcesumeret, nisi tantum modo suis legibus audirentur apud Tolona- rios suos. (300) Marquardus, de Jure Mercat. lib. 3. cap. ^,\\. 16. Chajj. IV. OF EUROPE. 333 The word consulate, de?iotes the jurisdiction, the laws, 8;c. they were called Lords.(301.) Dusfrcne(302) ob- serves, that formerly in France, among the dignities of the palace, was one called in Latin, Mercati Palatii Tolouearium, the peculiar duty of which was to preside over the Pilots* and to decide all causes which arose concerning certain maritime affairs. 10. For these reasons, the jurisdiction, bclonrinir to these maritime magistrates, was called the con- sulate, a name which it still bears in many maritime towns of Spain and Italy. The name of consulate is also given to the laws, which served as rules of decision for those who resorted to this jurisdiction ; and it is extended, also, to the book containing those laws. 1 1 . Learned men are much surprised that we should remain to this day, ignorant of the time when this precious compilation was formed, by whom it was made, and, in short, what nation first publish- (301) Marquard, loc. cit. n. 33. (302) Dufresne, Glos. Med. et Inf. Latin, torn. 3, p. 1081. * Pilots, or steersmen, were particular officers cmploved to ma- nage the helm and direct the ship's course din-ing the -coyage. Every ship had one of these necessary officers on board ; but since the great experience, and knowledge of navigation, in modern times, the master, or some of his crew, usually manage the licira, and the name Pilot is now applied to those persons along the coast, who are taken on board of vessels, to conduct them into port, or through channels, straits, or dangerous passages. ...T. 334 THE MARITIME LAAV Part I. Opinions of Vinnius and Arthur Duck, as to the Consolato. ed the Consolato del Mare, under which title, it af- terwards acquired such high authority, as to become respected by all the world, not by the force of any ordinance imposing a sanction for its observance, but solely on account of the intrinsic excellence of the laws it contained. 12. Arnold Vinnius, in his commentary on Pec- kills, on the title of the Rhodian law dejactu, and in his dedication, remarks, " that the greater part of the laws in use relative to maritime disputes, among the Italians, Spanish, French, and English, have been according to their respective writers, extract- ed from the consolato, said to have been composed in the time ot Saint Lewis, king of France." '& 13. Andre Crusius, in the 13th chapter of his book, entitled, Commentaire, Historique, Philoso- phique, Juridique, on the law 9, Dig. ad legem Rho- diani dejactu, in discussing the laws relative to ma- ritime affairs, makes the same remark concerning the Consolato del Mare, and cites Vinnius and Ar- thur Duck.* This Englishman observes, on this subject, that, in England, xht Consolato del Mai^e, * Arthur Duck, a learned civilian, was born in 1580, and died in 164-9. He was master of the Court of Requests in London. He wrote a work entitled, De Usu et Authoritate Juris Chilis Ro- viannrum in Dominiis Principum Cliristianorum, and is probably the same winch contains the opinion referred to by Crusius,,. ,T. Cliap. IF. OF EUROPE. S35 opinions of Grotius, Marquardus, and Targa, as to the Consolato. has as much authority as the Roman law, or any of the particular laws of his nation.* 14. Grotius(303) and Marquardus,(304) believe this collection to have been made in the time of the Crusades, by order of the ancient kings of Arra- gon, and that it was taken from the naval ordinances published by the Greek emperors, the emperors of Germany, the kings of France, Syria, Cyprus, Ma- jorca, Minorca, and the republics of Venice and Genoa. 15. Targa, \n his Ponder azioiii Mm-it time, chap. 92, and Casaregis, in his Niiova Sfnegazionc del Consolato del Mare, published at Venice, in 17S7, asserts, in the advertisement, that this compilation was the work of the ancient kings of Arragon ; that it was written in their language ; that, having been afterwards adopted by the most commercial nations of Europe, each translated it into its own * This is true only in respect (o the English court of admiralty, which, proceeding according to the laws of nations, regards the Roman law, and those Codes of maritiine law which have been adopted by the commercial nations of Europe, as forming a part ol the law of nations. See Bbcksfone's Commentaries, Vol. I. p. 79, SO, Vol. III. p. 69, and Vol. IV. p. C7 T. (303) Grotius Dejure Belli ac Pads, lib. 3, cap. 1, § 5, in alli- gat. n. 6. (30 1-) Marquardus, Dejure Mercatorum, cap. 5, n. C>9. 336 THE MARITIME LAW ^artl. opinion of Casai'egis examined. language.* He supports this opinion by the autho- rity of no writer, nor by any historical fact, though he wrote eight centuries after the publication of the Consolato, according to his own assertion. He has not even examined, whether what he has advanced agrees with what is contained in the preface placed at the head of the book. 16. The preface^ containing the names of so many sovereigns who recognised the Consolato, at the period of its reception, will serve as a guide in our researches, to discover the time when, and by "whom, this compilation w^as probably made ; for no person has yet arrived at certainty on this sub- ject. It will be easily seen, that this very pre- face is entirely spurious, and apocryphal, when, with the aid of history, we examine it with critical attention, as I shall proceed to do in the following pages. * " Basti il dire, che appena fu egli in qiiella lor lingua per or- dine degli antichi Re d'Arragona, compilato la prima volta, che, come fondamento, e norma della contrattazlone marittima, abbrac- ciato venhe tra pochi anni da tutte le nazioni d'Europa piii eser- citate nel traffico, nel sue proprio idioma ciascheduno trasportan- dolo, e di mano in mano poi per piu d'otto secoli segiutato fino a' di nostri, ne' quali in vigore eziando si mantiene generalmcnte." — This opinion of Casaregis, if not correct as to the original lan- guage in which the Consolato first appeared, is well founded as it respects its universal reception among all the commercial people of Europe, among whom it constituted a part of the maritime law of nations, ...T. Chap, IV. OF EUROPE. 337 Preface to tlie Consolato examined. 17. The author of the preface,* just mentioned, begins, with saying, that the Consolato was first ac- knowledged at Rome, in March, 1075, at Saint John de Lateran, where the Romans swore to its perpetual observance. f He does not, however, as he has done in speaking of other countries, mention the name of the person who sanctioned this pubHc act of accept- ance. It is known, besides, that the chair of St. Peter, was at that time, filled by that resolute pre- late, St. Gregory VII, jealous to excess of his sove- reign authority, and who certainly would not have permitted the Romans to sanction a new law, with- out his intervention and authority. 18. He, next, declares the Consolato to have been received at Acre in the year 1111, by king Louis, and the Count of Thoulouse, on their way to Jerusalem jj and if the preface to these laws is to be credited, the history of the time is entirely over- thrown. In that year Louis VI reigned in France, who never dreamed of making a voyage to the * This Preface is entitled, Ove, e quando furono concessi li pre- senti Capitoli e Ordinazioni T. f " Roma. L'anno, d'lncarnation di Crislo, 1075, a Cal. dt Marzo fur concessi in Roma in S. Gio. Laterano, et giurati da Ro- mani d'ossevargli senipre.^' — Preface to the Consolato T. + •' Acri. L'anno 1111, a Cal. di Seplembrc fur concessi in Acri nel passagio di Gierusalem per il Re Lodovico, et per il Conte di Tolosa, ct giurorno osserrali sempre."— Ib.,..T. Vor. I. U 11 3S» THE MARITIME LAW Part L Consolato not adopted by Louis VI. or VII. of France. holy land. The second crusade was in the time of his son Louis VII, who embarked in the year 1 147, to proceed to the Levant. If this be the Louis, who approved of the Consolato del Mare, at Acre, as mentioned in the preface, he could not have done it in 1 1 1 1 J for he was not then in existence, since he was born 1118. It is evident, therefore, that the author is mistaken, in this date, as well as in the chro- nology he has used in regard to the other nations^ who subsequently adopted these laws. 19. But supposing Louis VII to be the person here intended, it is not easy to discover any reason he could have for approving of the Consolato^ at Acre, either for the use of France, or of the peopk of the East. It could not concern France, since the au- thor himself says, it was adopted at Paris, in 1250 ; nor could it be intended for the Levant, for Louis had no right to execute there, so important an act of jurisdiction. Baldwin III, was, at that time, king of Jerusalem. It is known, that Louis made the crusade with Conrad, emperor of Germany, and, that, in 1148, he held, at Acre, a general diet, to deliberate on the enterprise they were about to un- dertake against the infidels. Wiiliam de Tours, who relates these facts, says, that Conrad, Louis, and Baldwin, met there with their respective foUov^ers ; and he is not only silent as to the supposed adoption of these laws by Louis, but he gives it to be under- stood, that these navai laws for the Levant could not have been sanctioned by the approbation of Loui? alone. Ckap. IV. OF EUROPE. 33i> Consolato not adopted by the Pisans at Majorca. ■ ^ ■ » 20. In the assembly of Acre, were different princes, slnd lords, who accompanied the three sovereigns. — William of Tours, who gives us their names, makes no mention of the count of Thoulouse. This prince, who was probably count Alphonso, could not have been there, nor have taken any part in the expedi- tion, since he died at Ca:sarea, in 1147, and, conse- quently, before the general assembly was held at Acre, so that he could not have met Louis, in that city ; facts which entirely destroy what this author advances in his preface. 21. From Acre he proceeds to Majorca.* He states, that in the year 1112, the Pisans had ac- cepted the Consolato at that place ; and that thev took an oath for its perpetual observance ; but histo- ry contradicts the date here given. It is a fact, that at that time the Moors were in possession of the Ba- learean Islands of Minorca, Majorca, and Yvica, or Eviza, and had it in their power to disturb all the coasts of Italy by their piracies. The Pisans, at that time, celebrated for their skill in navigation, and powerful at sea, excited by Pope Pascal II, endea- voured to expel the pirates from tl-ose islands. Hav- ing, in the year 1114, made themselves masters of Yvica, they undertook the siege of Majorca, which they took in the following year, 1115. They de- stroyed all the habitations, in order to deprive the * " Majorca. L'anno 1112, fur concessi in Majorca per i Pi- saiii, et giurorono d'osserrali semprc," — Ib....T. 340 THE MARITIME LAW Parti. Time of the Pisan conquest of Majorca. African pirates of this place of resort, as appears from the chronicles of Pisa, mentioned in Muratori, vol. 6. Though Ughelli,^ in the title of a poem on this war, composed by Laurentuis Vernense, or d'Verna, deaeon to Peter, archbishop of Pisa, and a contemporary author, says, that this happened in 1114; yet Muratori proves, by the most authentic evidence, that this event took place in the year 1115, as above mentioned ; and he adds, that according to Ughelli himself, this expedition v^^as undertaken and terminated in the years 1113 and 1114, of the christian aera.(305) Moreover, the learned Fabro- ni(306) places this expedition in 1113 and 1114. * Ughelli, a native of Florence, was born in 1595....T. (305) The chronicle taken from a manuscript of de Lucca, {Mu- rat, Rer. Ital. torn. 6.) speaking of the losses suffered by the Sara- cens, in this expedition of the Pisans in 1114 and 1115, says, Pi- sani ultra quinquaginta Saracenorum millia occiderunt. Volterranus, afterwards, adds, (Geog. lib. 5, de rebus Pisan,) Sed et Rege Sara- ceno Majoricce interfecto Reginam captmn cum parvo Jilio Pisas, in iriumphum duxere, ubi ab urbis Prcesule christianus , simul et Cano- nicus S. Maria, factus in paternum regnu?n diiniilitur. Ughelli, in his Italia Sacra, lib. 3, says, that the mother of the young captive prince, called Lambert, became a Christian. Christiana devota SanctcB Maria permansit. She died at Pisa. On her tomb is the following epitaph : Regia me proles genuit, Pisce rapuerunt, His ego cum nato bellica prceda fuit , MajoriccE regnum tenui, nunc condita saxo, 2uod cernis,jaceofinepotita meo. (306) Eloge de Pierre Moriconi, par M. Ange Falroni, note iSi. Chap. IV. OF EUROPE. 341 The Pisan chronicles do not mention the Consolato in 1118. From all which it clearly follows, that the Pisans did not adopt the Consolato, at Majorca, in the year 1112, since that island was then in the power of the Moors. 22. One of the Pisan chronicles mentions, that after driving out the Moors from that island, the Pi- sans destroyed every thing, and having divided the spoils, they returned to their own country, loaded with glory and riches. There could be no reason, then, for leaving maritime laws in a countrv laid waste, and where there were no inhabitants left to observe them. On the other hand, these laws had not yet been published at Pisa. If we follow the dates pointed out by the author of the preface, it would appear that the Pisans were desirous to esta- blish a system of laws in another place, before they had been promulgated in their own country. This is the less credible, as Vernense, who describes all the minute circumstances of this war, although he has spoken of this period, mentions not a word of this fact, which certainly deserved to be noticed, as a proof of a sovereignty, acquired by force of arms. Other Pisan chronicles make no mention of these laws, while at the same time, they pass over in silence, the fact, that they had been received at Pisa in 1118. at the church o{ St. Pictro del Mare, during the ma- gistracy of Ambrose Migliari, the person who ad- ministered the oath for their observance, as the au- thor of this preface pretends.* ■'•■ "Pisa. L'anno 1118. fur concessi in Pi'^a in S. Pctro ihi 342 THE MARITIME LAW Part I. Capture of Conaantinople by the Latins, in 1204. 23. In regard to Constantinople,* it is pretended that the commune of Venice, and king John, imme- diately after expelling the Greeks trom that city, took an oath, in the year 1215, in the church of St. Sophia, to observe these laws. Constantinople was twice taken by the Latins; the first time, in 1203, when the French and Venetian crusaders, having become masters of the city, deprived Alexis An- gelas of his throne, which they seized, and restored Isaac Angelas, and his son Alexis. This prince, however, was regarded by the Greeks with a jea- lous eye, as he had arrived at the throne, by the aid of the Latins. The disputes which arose on this subject, between the Greek nobles and the people, were the reason why the former elected a person of the name of Constantine, and the latter another Alexis, surnamed Mourzoufle. In the midst of these agitations, the Latins came to a resolution to sieze on Constantinople, and to make it the seat of their power. They became masters of it in 1201-, and they afterwards divided the Empire. The Ve- netians had several provinces, islands, and cities, enumerated in the memoirs, annexed to the chroni- Mare in potesta d'Ambrosio MigUari, e giiiro osservarli." Preface to the Con)iolato....T. * " Constantinopoli. L'anno 1215, fur concessi per il commun di Venetia In Constantinole, nella cliiesa di S, Soffia, per il Re Gio- vanni inconlinente che fur cacciati i Greci, giiiro d'osservarli sem- pre." — Ib....T. Chap. IV. OF EUROPE. 343 The Conaolato was not adopted at Constantinople in 1215. cle of Andreas Dandolo.* They elected a Latin emperor, Baldwin, count of Flanders, who, in 1206, was succeeded by his brother Henry, count of Flan- ders, who died in 1216.(307)t 24. On comparing these historical sketches with what is related by the author of the preface to the Consolato, concerning its reception at Constantino- ple, the gross error into which he has fallen will be manifest ; since the taking of that city does not cor- respond with the date he has given. It happened, as appears, in the years 1203 and 1204, while the author places it in the year 1215. He says, that the republic of Venice accepted these laws at Con- stantinople ; but why not at Venice } By whom were they presented to the Venetians in that capital of the empire ? The most accurate historians make no mention of the fact. Sandi(308) declares, on the * Andreas Dandolo, is the historian of Venice for this period. Henry Dandolo was then Doge of Venice, and one of the most illustrious characters of the age. He commanded the Venetian forces, during the united crusade of the French and Venetians. He was aged eighty-four, when he was elected Doge, and died at the advanced age of ninety-seven. Gibbon throws some doubt on this remarkable longevity. Decline and Fall, ch. 60, note....T. (307) See L'Arl de verifier les dates, art. Constantinople. -f The English reader is referred to the COlh and 6 1st chapter ot" Gibbon's Decline and Fall....T. (3G3) Sandi, Storia Ciiilc di Venezia, torn. 1, liv. 4, chap. 7, p ues. 344 THE MARITIME LAW Part L Other particulars to shew the falsity of the preface to the Consolato. contrary, that the most ancient and authentic Code, printed at Venice, was unknown before the year 1252 ; and he adds, that the repubHc of Venice, to insure its observance, appointed some of its most zealous citizens to carry it into execution. It being then an undeniable fact, that Constantinople was taken in 1204, it is impossible to make that event agree with the date of the acceptance of the Conso- latOy in 1215 i since the city was at that time under the government of Henry, and the Venetians re- served nothing more than the right of electing a Latin patriarch. 25. The king John, who, according to the author of the preface, took an oath, in the same place, and at the same time, to observe these laws, will serve still more to expose this imposture. There is no mention made of this prince in any history j but merely of Giovanniccio (or Carlo-John,) king of the Bulgarians, who, in 1205, with the assistance of the Greeks, who had every where revolted, made him- self master of Constantinople, and took the emperor Baldwin prisoner. As this prince had no con- nexion with the fact stated in the preface, or with the period of time there mentioned, there is reason to believe, that this king John is a person of the au- thor's own creation ; a mere imaginary sovereign. 26. The falsity of the account of the author of this preface may be more clearly seen, from the supposed Vhap. IV. OF EUROPE. 345 T.- ' r ■; Further evidence of tlie mistakes in tlie Preface to the Consolato. ' ■ ■ ■ ■ ■ "W acceptance of the Consolato by a count in Aldma- nia* Does the word Alamania signify all Germa- ny ? It was not, at that time, subject to a count, or single sovereign j and the acceptance of the Con- solato by a count, could not be said to be by the whole of Germany. If a part only was intended, it would have been necessary to point out what part. Besides, he speaks of a count, without mentioning his name, or surname. Frederick II was, at that timc^ emperor of Germany ; and as it was not him, it must have been some fabulous count, whom he supposes to have approved of these laws in Ger- many. 27. It is further pretended, that the Consolato was adopted by the emperor Frederick, at Messina,f in the year 1225, at the church of St. Maria Nuova, in presence of the bi.^hop of Catalonia. It is true, that Frederick was, at that time, in Sicily; but history, and the Sicilian chronicles, arc silent as to this very important fact. Richard de St. Germain, a contem- porary writer, says not a word about it, while he re- lates the most minute circumstances that took place * " Almania. L'anno 1 22 i, fur concessi in Almania per il Conte, et giuoro osservali seinpre." — Ibid....T. + " Messina. L'anno 1225 fur concessi in Messina nella Chiesa fli S. Maria Nuova in prcsentia del Vescovio di Catania per Fre- Jcrico Impcrator d'Alniania, e giuro di osservali." — Ibid....T. Vol. I. X X 346 THE MARITIME LAW Part L Error in the Preface to the Consolato as to its adoption at Paris. at that period. In the same year, Frederick passed from Sicily to the kingdom of Naples, and, according to Richard de St. Germain, celebrated, at Brinde, his nuptials with Jolante, daughter of the king of Jerusalem ; though Sigonius, and other historians assert, that they were celebrated at Rome. They do not mention whether Frederick, though in Sicily, (where he did not remain a year,) went from Rome to Messina. Contemporary authors having observed a profound silence as to a fact so important, reason, and sound criticism, enjoin us to give no credit to a writer who attests facts so remote from his own time. 28. The author, in his preface, says further, that these laws were received at Paris,* in the year 1250, by John de Belmont, and that he swore by the soul of the king of France, in the presence of the knights de VOst^ Templars y and Hospitallers, and the admiral of the Levant^ that the same should be perpetually observed. It is impossible to make this account agree with history. Louis, king of France, was, during that year, in the Levant, where he was de- feated. In a battle which he hazarded against the mfidels, he and his army were made prisoners of ^ " Parisi. L'anno 1250, fur concessi per Giovanni di Bel- monte sopra I'anima del Re di Francia che in quel tempo non era ben sano in presentia de i Cavalieri dell' Ost, e di i Templieri, e de i Spedalcri, e deli' Armiraglio di Levante, per osservarli sem- nrc."— Ib:d....T. Chap. TV. OF EUROPE. S4t Consolato not adopted in France in 1250- war. If so great an act of jurisdiction was exercised in France by John de Belmont, with what authority was he clothed ? No person knows ; the author him- self has not told us. Why was it not rather done by queen Blanche, whom the king left regent of his kingdom ? Another reflection naturally occurs, as to the knights de COst, in whose presence the au- thor asserts these laws to have been accepted. L'Ost is an old French word, signifying army. But besides that, this denomination of the knights o^ the army., is not used by any French author, ecclesiastical or secu- lar, to distinguish any of those nobles or ecclesiastics to whom the title o{ chevalier is given, we are at a loss to imagine, why these military characters who, in general, were perfectly ignorant ol all matters of law, which they abandoned to derksy should have been introduced, to assist in the promulgation of a Code of maritime laws. On the same ground stands the sup- posed presence of an admiral of the Levant ; since, according to the observations of Fournier and Valin, no such character as admiral was known in France, before the year 1327, under the reign of Charles IV, surnamed le beau, who, for the first time, conferred this office on Peter Megue, or Micge.(30y) (309) P. Fournier, Ilydrographic, liv. 7,ch. I.— Valin, Comment. r1 1'Ordin. de France, torn. I, p. 82, " Mais que ce I'ierre le Megue, ou Miege, ait ete eflectivement amiral dc France en titre, c'est ce que prouvent non seulement les listes des amiraux donn^espar Du- cange, P. Daniel, Le Ferron, P. Fournier, et le P. Anselnie, niais encore cellc que Ton trouve dans un ancien manuscript de M. Du« puy, qui etoit a la bibliotheque de S. A. S.M. Icduc dc Penthievre, n. 84§." 34* THE MARITIME LAW Parti, - .- J Fuither proofs of the falsity of the Preface to the Consolato. 29. The Consolato, appears to have been again accepted, in the year 1262, at Constantinople, in presence of the emperor Paleologus.* It was ap- proved, for the first time, by the Latins, if we may credit the author of the preface, after they had ex- pelled the Greeks from that city. The latter, after their restoration, accepted it anew. There is no doubt that Michael Paleologus, reigned that year in Constantinople, which he re-took in 1 260 ; but no author, in relating the events of the times, has made any mention of the facts attested in this preface. 30. The imposture of this piece will further ap- pear from the assertion that the Consolato was ac- cepted in Syria, in 1270,t by Frederick, king of Cyprus, since history informs us, that Hugo III was at that time king of that island; that, in 1269, he was crowned king of Jerusalem ; and that, during that period, there was no king of Cyprus, named Frederick. 31. The Consolato is a third time presented for acceptance at Constantinople, in 1270. The author * " ConstantinopoH. L'anno 1262, fur concessi in Constantino- poli in S. Angelo per Paleologo Imperatore, e giuro osservali sem- pre." — Preface to the Consolato.... T. •f " Soria. e ConstantinopoH. L'anno 1270, fur concessi in Sorlc^ per Frederico Re di Cipro, e in Constantinopoli, per Timperatpre. Constantino, e giuromo osserrali sempre." — Ibid....T. Chap. IV. OF EUROPE. 349 The dates given in this Preface erroneous. pretends, that it was made by the emperor Constan- tine, though it had been already accepted by Pa- leologus in 1262. This would not, in fact, be sur- prising, if Constantine had been emperor at that time ; but it is undoubtedly true, that Michael Pale- ologus reigned there until 1283, when he was suc- ceeded by his son Andronicus II. Though Androni- cus was crowned with his two brothers, Michael and Constantine, and it may thence be inferred, that this is the Constantine mentioned in the preface ; yet the fact is opposed to history, for it is utterly improbable that he could have given a sanction to the Consolato without the intervention of his two brothers. 32. It is useless to carry any further, the refutation of the dates, at which the author of the preface de- clares the Consolato to have been received at Genoa, Alarseilles, Brondi, Rhodes, and Majorca. From all that has been observed on the great want of chrono- logical accuracy in this author, and for the strong rea- sons urged for doubting his assertions, there is ground to believe, that all the dates in this preface are the work of the writer's imagination, and that the com- piler or editor of these laws supposed that their value might be enhanced, by being decorated with these illustrious testimonies in their favour. The true ori- gin of the Consolato del Mare remains, then, enve- loped in perfect obscurity, and the nation who first published it is yet unknown. tJ50 THE MARITIME LAW Par/ /. Eirst editions of the Gonsolato— It was the work of the Pisans. 33. The first Italian editions declare it to be a translation from the Spanish.* Stephen Cleirac, in in his book, entitled, Guidon de la mer, supposes it to have been composed in the Catalonian language. Yet Vinnius, in his notes on PeckiuSy Ducange in his glossary, under the word consules, and Heineccius, always quote it in the Italian language. 34. Amidst so much uncertainty, and diversi- ty of opinion, on a point so very interesting to the history of naval jurisprudence, and the origin of mo- dern maritime law, I am obliged to have recourse to the chronicles and annals of the middle ages, to as- certain the truth, and to fix my own opinion. After the maturest reflection, and the most accurate re- searches, it appears to me, that the Consolato del Mare, can be the production of no other than the pisans. 35. The frequent voyages of the Pisans, and the victories they gained, on various occasions, which *i Habner says a translation was made of the Consolato from the Catalonian language into the Castilian, by Francisco Biaz Romano, in 1339, in 4to, and he gives the title at full length. He does not say, however, that he had seen this Spanish edition; and Azuni makes no mention of it. Hubner also mentions an Italian transla- tion, made by John Baptist Pedrezzano, and printed at Venice, in 1576, in 230 quarto pages. This same translation^ he says, was re- printed at Venice, in 1584-, with the same number of pages, to which a supplement was subjoined of a maritime itinerary, Parto- lano del Mare, by one Paul Gerardo, which fills thirty-eight pages more....T. Chap. IV. OF EUROPE. 351 Authority of Gaetan shews tlie Consolsito to be a Pisan work. rendered them masters of the sea,(3 10) necessarily placed them in circumstances, that give rise to the frequent discussion of questions of maritime jurispru- dence, and led them to form a body of laws, compris- ing all the decisions which might be useful, as had been formerly done by the Rhodians. — How can we refuse to a people, who owed all their grandeur and wealth to commerce and navigation, those laws and regulations, which are the only means of encourag- ing the one, and increasing the other ? 36. It is admitted, that this induction is too ge- neral, and that the same reasoning might be equally applied to every other maritime state, contemporary with Pisa. It becomes necessary, therefore, to sup- port my opinion, by such authentic proofs, as will shew it be well founded. I shall begin with the tes- timony and authority of Constantine Gaetan, a Bene- dictine Abbe, in his notes on the life of Gelasius //, page 402, of the second part of the 3d volume of Mu- ratori's Rer. Italic, in which he points out the exact date of the origin of the Consolato del Mare. 37. This author, after having lavished his praises on the republic of Pisa, endeavours to support his opinion by the testimony of John Charles Florentin, and cites the very words of that author, who speaks in high terms of the wisdom of the Pisans, and boasts of their maritime wars, and victories, by which they (310) See Chapter IT, section, Pisa. 352 THE MARITIME LAW PaH L — , - " The Pisans obtain the sanction of the pope to the Consolato. gained the name of masters of the sea, as well as the applause of all nations. These praises were bestowed, he observes, among other reasons, because the Pisans were the first to engage in devising regu* ]ations for navigation, and maritime commerce,and in framing such laws, as were requisite to maintain good faith, and to serve as rules in all maritime con- tracts.(31 1) He affirms, that he is supported in his opinion, by that of Claude-Nicolas Frabricius Peyre- scius, a Frenchman, and a man of letters, who lived in his time ; and he relates it as an incontestible fact, that the Pisans compiled the body of maritime laws, called the Consolato ; that though it had been already recognised by the republic, yet the Pisans, much at- tached to religion and to justice, believed it their du- ty, on a subject of so great importance, to have the approbation of the Holy See. (3 12) They proceeded to Rome for that purpose, and intreated, with great humility, Gregory VII, to give, by his sanction, the force of law to those statutes. The holy father, condescending to comply with their wishes, confirm- (311) Soli Pisani, says Gaetan in liis notes on Miiratori, pro?no- tores exiiterunt, ul mare quod antea nullis legibus navigabatia-^ certis in postcncm ejus navigatio coerccretur. (312) Id quod eliani opiime animadvcrtit suis ad me datis Uteris, •oir sane erudUissimus , clarissimusque, Claudius Nicolaus fabricins Feyrescius Gallus, de Uteris, deque lilcratis bene nieritissivius . Et quando sine apostolica Petri facuUate nihil unquaiu boni fieri potest, Pisani (potentissimcc etiamsi eorwn Republic(r, voluntas adesstt) ni^ liilo minus ut religiosi, summum Reipubliae Christiance Antistitein ea de re in primus consukndum dccrcxcre. Muratori, in loc. cit. Clinp, IV. OF EUROPE. 353 Bcttinclli aiid Fanucci speak of tlie Consolato, as a Pisan work. ed these statutes, in the church of St, John de Late- ran, on the 1st of March, 1075, and the Romans, at the same time, took an oath for their perpetual ob- servancc.(313) 38. The abbe Bettinelli, in quoting the authority of Gaetan, in his work, entitled, // Risorpimento iT Italia, asserts the same thing. *' She (Pisa) trans- " mitted to Pope Gregory VII, in 1075, for his sane- " tion, the naval laws she had collected, that they " might become, by such approbation, a maritime « Code for all Italy. "(3 14) 39. The learned M. Fanucci, in an acadejiikal discourse on the history of Pisa, printed in 1788, con- firms my opinion. He says, in one of his notes, page 70, that it is beyond all doubt, that this work (11 Consolato) contains many of the naval laws of the re- (313) Adeunt ilaque Romam, Gregorium VII. papam conveniunt, aguntcfue cum illn, nt a sanctitate sua vim reciperent ece maris leges, ordinationesque. Annuit sanctissimus pontifex, easdemque confirtna- rit in Basilica Sancti Joannis iMieraiiensis, Kal. Mart, anno Chrisio 1075, conjirmatasque max Romani jurajnento ohservare perpetiio se obstrinxerunt. Vita Gelasii II. ex MS. bibliotli. Anibrosianas Pan- dulphi Pisani cum Comment. Constant. Cajet, apud Muratori, tom. 3, Rerum Italic, pag. 367. (3M.) Diede ella, Pisa, in mano a Gregorio VII. nel 1075, per- che le approvassc, le leggi nautiche da lei compilate, che per tale apprnvazione divennero un Codice marittimo per gli Italian!. Bet- tinelli, // Risorg. d'lial. tom. 3, p. 84. Vol. I. Yv 354 THE MARITIME LAW Part t, - " - ... Breve Maris of Pisa, similar to the Consolato. public of Pisa. In fact, continues this author, Val- sechi, in his epistles, de veteribus Pis. civit. const, ob- serves, that in the Consolato del Mare, are found ex- actly the same regulations relative to the principal and most important points of maritime law, as are contained in the Breve maris, or Breve consulum ma- ris Fisce. It is certain, that the statutes of Pisa, com- piled in the 1 1th century, contain many laws similar to those of the Consolato, on various maritime sub- jects, and some, of periods still more remote. In the public records of Pisa, (which, by the indulgence of the civil magistrate, who gave me the permission with that frank liberality which marks his conduct, (315)1 have myself verified) may be found at this day (315) I ought, in this place, to express my gratitude to the civil magistrate of Pisa, for the honour he has done me, by causing my name to be inscribed among the nobles of that city, in consequence of the publication of tlie former edition of this work, in which this article appeared. This honourable mark of their favour was announced to me. In the following letter : " Ill^o- e Claris"^^- Sig«- Sig^' Pad«- CoF°- '* L'OrEK A di V. S. Illustrissima e Clarissima, che ha per titolo^ Sj/stevm Universale del Principi del Diritto Marittimo dell' Europa, o stata accettata, e sommamente gradit^ dal magistrato civico di questa citta a cui si 6 degnata di rimetterne diversi esemplari. " La profondila della giurisprudenza, e la sublimita dello stile e della erudizione, che compariscono nella suddetta opera fanno abbastanza connoscere la grandezza de' suoi talenti, e rendono sempre piu celebre nel mondo lettcrarioj il di lei nomej e percio Chap. IV. OF EUROPE. 355 Maritime Collections of Pisa. three collections ; the first, entitled, Brcce Curiccor- dinis maris ; the second, Reformatio ejusdem Ciiricc, and the third, Brevia CiiricC ordinis maris. Cur ice mer- catoriaUy et arlium civitatis Pisarwn. These collec- tions, though posterior to the municipal statutes above mentioned, since the first bears date in 1337, are evi- dently an abridgment, or a reformed copy, of a much qualunque clogio farsene potesse, non sareble mai correspondents al dei gran raerito. " Tralasciato pertanto tutto ci6 chia riguarda un (ale encomio, mi faro solo un dovcre di manifestarle, oltre i piii distinti ringra- ziamenti anche i sentimcnti piu sinceri di stima, rispctto e gralitu- dine del Magistrate predetlo verso rigguardevole persona di V. S. Illustrissima et Clarissima, per avcre con tanta precisione di for- tissime prove dismostrato, die I'istituzione del Consolato del Mare ricevuto dalle nazioni tutte, come nrmissima base per il commercio e navigazione marittima, appartiene all' antica Pisana republica, e die a questa sola devesi la taiito sublime prerogativa di essere stala la prima a stabilire quel numero di leggi, che tossero bastevoli, ed cfficaci a mantenere la buona fede, ed a regolare le contrattazioni della suddetta specie. Ella no ha ripportata una lodevole vittoria contro gli avversari, ed ha resfituto alia citta di Pisa quella gloria, che finora era rimasta sepolta neli' oscurita delle tenebre. " Con quanta ragione adunque le deve essere grato il popolo Pi- sano rappresentato dal Magistrato suddeto, ne resta abbastanza convinto chiunque legge I'allegata eriulitissima sua opera sopra Ic sanzioni del mare; ecommechc egli nienlepiii desidera, chedimos- trarle col fatto la di lui riconocenza, cosa ha gia date le convenient i disposizioni, con avere deputatato due nobili cavalicri ad umi'iar supplicaa S. A. R. per ottenere la grazia, che V. S. illustrissima e clarissima venga ammesso al godimento dei frimaro onori c gradi dclla citta suddetta, la quale, sempreche ne consequisca Pintento, anderi superba di avere in lui acqnistato un conrilndino per (nr.l: meriti illustrc c celebcrrimo. 356 THE MARITIME LAW Parti. Opinion of Campmany, a Spanish author. more ancient Code of sea laws. It does not, there- fore, contradict, in any degree, the fact before ad- vanced, that, anterior to the compilation of maritime usages, under the name of the Consolato del Mare, the Pisans possessed a Code of maritime laws, on the same subject, formed at a period, when they were the first maritime power in the Mediterranean ; and that this establishment of a tribunal for the decision of maritime causes, among the Pisans, was long an- terior to that of any institution of the kind among any other commercial people, 40. M. Campmany, a Spanish author, in his excels lent work, entitled, Memorias historicas sohre la ma- rina commericoy artes de la antigua Ciudad de Barce- lona, lib. 2, cap. 1, page 153, asserts the claim of the Barcelonians to the Consolato del Maret against the Valencians, who arrogated it to themselves, in exclu- sion of all other nations, and adduces, with success, various proofs and documents in favour of this part of " Tanto debbo farle presente in ordinealla commissione ingiun- tami con deliberazione della prelodata Magistratura del giorno in- frascritto, e con profondo assequio e rispetto ho I'onore di protes- tarmi. " Di V. S. Illustrissima e Clarissima " Umilis"™"- ed ObbF°- Servitore, " Pisa, 22 Febbrajo, 1796. "Leopoldo Palloni, Caneelf' " Al Signer Senatore Domenico Alberto Azuni, Patrizio Sassares^ a Firenze." Chap, IV. OF EUROPE. 357 Opinion of Campmany. his cause ; but he has not succeeded in depriving the Pisans of the glory of being the original compilers, to whom he does not hesitate to ascribe the merit of being the first authors ot ?naritivw law.{3\6) He, (316) Campman}', page 179. " En ohsequio de la xcrdud dtbemo: accomodar en parte neuxlro dictamcn al penm7uiai(o de Cousluntiuo Ca^etano en sun comentario a latida dc Gelaiio II. vuUir al de Pisa." Translation : — " A regard to truth on our part compels us to agree in opinion with Constantine Gayetan, in liis commentaries on the life ot" Gelasus II. a native ot Pisa." Again, page 180, 181, " HIuj/ bicn pudicron las Pisuuos ser los primeros que instiiuyessen algunas ordtnuciones relativas a su puj/s^. y ial vez las primerccs escritas de a quella epoca (scculo XI.) ma no nos consta si non las tnismas, que hoj/ componen el cuerpo legal del Consuiado, o si son parte dc ellas en la suhstancia, y ezpression. Los Pisanos pudieran ser los primeros que escribieron itn codigo niari- timo sin que esie sea el mismo, que hoy se conoce con el titolo de Con- suiado del Mar. Lo cierto es, que quando se einprcndio le coinpila- cioii por los prohombres de Barcelona habrian viududo ya las cosas, attndldos los usos, y praciicas que se habrian adoptado en las Cmdades del Mediterraneo, desdeque los Pisanos pusieron la primera piedra al cdijicio que los Barceloneses provistos de mas materiales su,- pieron conducir." Translation : — " It is very possible that tlie Pi- sans were the first who instituted any marine ordinances for their country, and, perhaps, published the first books of that period, (the nth century;) but it is not certain whether they are the same wiiich are comprised in the Code of the Consolato, or osly a part of them, agreeing in substance and mode of expression. The Pi- sans may have been the first who composed a maritime Code, without its being the same known at this day, under the title, // Consnlato del Mare. The truth is, that when the magistrates of Barcelona undertook the compilation, changes had already taken place in many things depending on the customs and usages which had been adopted in the cities of the Mediterranean^ from the tinif 858 THE MARITIME LAW Part I, The present Consolato different from the ancient Code. therefore, believes it possible, that the Pisans might have been the first who composed a Code of mari- time laws, without its being the same as the Consola- to 3 but that the Barcelonians must have put the last hand to the work, and finished it in the form in u hich it now appears. This is equivalent to saying, that the collection we have at the present day, is truly the work of the Barcelonians. 41. This Spanish author, in taking all the chap- ters that form the collection of the present Consolato for the same ancient Consolato, that was adopted in 1075, by the nations above mentioned, falls into a great error, from which it is necessary to extricate him. At that time, this collection, without doubt, contained only 294 chapters, which I have, with good reason, attributed to the Pisans. The four ad- ditions, afterwards made to them by Francis CclelleSy who was the compiler, and put the whole work into the Catalonian language, and which were printed together with the former chapters, at Barcelona, in 1502, and afterwards in 1592, were not adopted by the same nations, nor v^ere they ever in force among them, nor did they serve as a rule to any other than the the Pisans laid the first slo.ne of that edifice, to the completion of ■which the Barcelonians are known to have contributed the princi- pal materials. " The course taken by Campmany in favour of the Barcelonians, is, in fact, the most skilful method to maintain his opinion ; but the proofs which I shall adduce to the contrary in the following pages, will entirely destroy his pretensions. Chap. IV. OF EUROPE. 359 The contents of the present Code, or Consoluto del Mare. judgesofthe Consulate ormaritime court of Barcelona, for which they were framed. The first of these addi- tions consists of certain privileges granted in 1 340, by- Don Peterlll, of Arragon ; the second, which is with- out date, contains the ordinances of the counsellors, or municipal magistrates of Barcelona, for the regula- tion of the Arragonese Consuls in Sicily; the third, in 1484, made by the same oflicers, relates to certain maritime cases, and to marine assurances ; the fourth, consists of ordinances taken from a collection, enti- tled, Recognovcrimt proceres, made by learned and experiened men, in 1271, 1432, and 1481. These chapters, added to the ancient collection, form, at the present day, what Is comprised under the title of // Consolato del Marc* 42. Even the introduction to this book, placed at the beginning of the different editions, is directly op- posed to the conjectures of Campmany, since it states * The volume of Casaregis, before referred to, contains, first, the 294 chapters of the Consolato, next, certain ordinances relative to armed ships, and various naval and marine otiices, comprised in 36 chapters, then follow the four additions above specified ; be- sides which, there are ordinances relative to marine assurance, in 27 chapters ; laws and regulations by the Co/iservatori del Mare of the republic of Genoa, with instructions and orders for the conduct of owners, masters, and the various officers and persons concerned in navigation ; and an appendix, containing different laws extracted from the sixth book of the statutes of Venice, relative to ships and navigation, and the Portolano del Mare, for the Levant, and various other place? in the Mediterranean T. 360 THE MARITIME LAAV Part L The Consolato not a Eaicelonian work. as a fact, that the Consolato is long anterior to the establishment of consular magistracy at Barcelona. A questcs son los bons establimentSy at los bones cos- tumes que son defet de mar, que los sabis homes que van per lo mon ne conienzaren a donar a nostres ante- ccssores, los qualsferen pu los libres de la sabietat de tos bones costumes : that is, " these good establish- ments and usages, relative to maritime affairs, were given by wise men, w^ho had travelled over the w^orld, to our ancestors, who composed from them these books of prudent conduct, and wise customs." 43. It cannot, therefore, be doubted, after the proofs that have been adduced, that the Barcelonians had not any consular magistrates for the decision of maritime affairs, before the fourteenth century -, since it is certain,, according to the Spanish diploma- tic collection. No. 248, and 275, page 368, that this magistracy was not instituted, until the reign of Pe- ter III, of Arragon, who gave to the body of mer- chants the right of choosing, by a plurality of votes, two of their number for procurators, or judges of ma- ritime affairs, saving, always, the jurIsdiction(317) (.317) The same Camp many, in the history above cited, torn. I, tit, 2, p. 153, assert.s also the same fact. " A estos dos vionumenios de la primera instiiucion del juzs,ado mercaniil slguen otros testimo- nios no menos autenlicos que a demas de conjirmar su existenzia y ex- ercicio e pyindpios del siglo XIV. nos anuncian a sus juezes con el titulo ya de consiiks dal mar en numero tamhicn de dos puo a nnmi- nncion de los mngistTodos inunicipcdes en cvyns ?nanos jnrnhan los em- Chap. IV. OF EUROPE. 361 — - ' ' ■ ■ '.■ ' The situation of the Barcelonians in the lltli century. of the ordinary magistrates. This could not have been other v\ise, since the Consolato del Mare^ was certainly compiled, and universally known, from the year 1075, as I have already shewn, and as appears from its title page. At this very period, the Barce- lonians, assisted by the Pisans, had scarcely begun to shake off the yoke of the Saracens. They were shut out from the sea by the continual piracies, and incur- sions of the Saracens, who were masters of the Bale- arean islands. AV^ho, then, can believe, that in such a situation, they were in possession of the science of maritime law, and naval jurisprudence, and at a time, when, beyond doubt, the Catalonians were nothing more than simple fishermen } pkos que eran annuales." Translation : — " To these records of the first institution of a mari ehe il Codice, I' Instituzione e le Pandetii si fossero mandate in Italia iniorno alt'anno 5.37, che fu la prima volta presa Roma dc Bellisario, ed il lihrn dcllc novtlle dopn ruccisionc di Totila ed intiero fus;aniento dei Goti dul' Italia, come il tulto si fa conoscere da una della Consti- tuzione dell' istesso Giusiiniano, pubhlicata I'anno delSignore 563, ct 57 del sua impero. Translation: — " We are of opinion, that the Code, the Institute;;, and Pandects of Justinian were sent into Italy about the year 537 ; that Rome was then taken by Belisarius for the first time, and that the book of Novels was known there after the death of Totila, and the entire expulsion of the Goths from Italy, as may be seen by a Constitution of Justinian published in the 563d year of the Christian aera, and in the 37 th of his reign." As to the celebraf'^d literary disputes, which arose in the last century, about the time when the Pandects were discovered, the best opinion is that of the Abbe Borgo del Borgo, a nobleman oi Pisa, who, in a very learned dissertation printed at Lucca, in 1764, entitled, Dissertazione sopra I'Istoria de Codici Pisani delle Pandeltv, Sfc. proves that the Pandects were known a long time before they were discovered at Amalphi in 1135. After stating the reasons adopted by his celebrated adversaries, Breneman, Grandi, Fanucci, and Valsechi, he expresses himself, (p. 19,) in the following man- ner : " Onde colla predetta mulliplicita degli esemplari, che ho I'ar- dinienio di proporre alia considerazione del mio cortese kttorc, se mal nan m'oppongo, pare a me, che si potesse ancor conciliare la t^ran lite de, mentovuti due celebratissimi projcssori Pisani, stabilendo per Con- cordia, che la citta di Pisa n'avesse gi^ ilsuo f/iolto prima, e che poi nell' anno 1135, acquistas.se ancor quello d'Amalfi. Kel qnal sup- posto perh converra credere ancora, che dei due esemplari pcnenuti in Pisa, sendosene uno '•o^n snlvato da qucsto, che vi resio, jinica?nen(' Vol. I. 3 A 370 THE MARITIME LAW Part L ' ... — — Opinion of M. Del Borgo. ritime laws which they, as has been shewn, adopted and swore to observe, in the 1 1th century. avessero orisine dipoi tutti quanti i lihri dei Digesti, di cuipresente- mente abbiumo notitia ; siccome, per seco-ndo argomento della sua no- bile fatica, can ottime ragione sostene il sig. aw. Guadagni, nell' ac- cennaio suolibro." Translation : — " It appears then, from the multiplicity of copies I have mentioned, and which I dare offer to the examination of the courteous reader, that we may, if I am not deceived, further recon- cile the important controversy of the celebrated professors of Pisa, by admitting, first, that the city of Pisa had its copy a long time before; and tliat, afterwards, in the year 1135, il obtained that found at Amalphi, This being established, it is easy to believe that of the two copies acquired by Pisa, only one has remained ex- tant; and that it is from the only remaining copy, that all the books of the Digest we know, have been taken, as Sign. Aw. Guadagni has suggested, and maintains, with the best reasons, in the second argument of his excellent work." The opinion of M. Del Borgo, appears the more conformable to the truth, from the expression in the preamble to the Pisan consti- tution of I 161. Pisana, itaque civitas a mullis retro temporibus vi' ■tendo lege Romana, retentis quibusdam de lege Longobarda subjudi- cin legis propter convti'sutionem diversarum gentium per diversas mundi partes suas consuetndines nisi scriptas habere meruit ; super quas annuatim judices possini , quos previsores appellavit, i^c. Cod. dell' Archi. Communit. di Pisa, n. I. * Belisarius took Rome in 537 ; it was retaken by Totila in 546, and the Goths were finally expelled in 553, when Italy was again overrun by a new deluge of barbarians. Gravina is of opinion, that the laws of Justinian, though preserved at Ravenna, were not publicly known throughout Italy, but were buried and lost under the barbarous jurisprudence of the successive conquerors of the country. A regionibits vera aeteris, quas statim ab expulsis Cothis, Chap. IV. OF EUROPE. 371 Conjectures of Gravina as to the introduction of tlie Pandects into Ital)'. 50. After all that has been said, I may, with rea- son conclude, that Gaetan has spoken the truth, when he asserts, that the Pisans have been the earliest pro- moters of maritime laws, since they were the first who collected them into a Code, which they promulgated Longobardorum colluvies occvpaverat, Ronianum jus exulavit: tan- devique ah ipsa Ravenna excessit Itaqiie Italia nuijestaic simul et lec;ibus exuta suis, jugum imperii, legumque subiit barbaro- rum, dominaque rerutn humanarum sensu pristine libertatis, reteris' que magnitudinis per Inngum, ac vile servitium privata, pro Romano splendore, atque Uumanitate juris, beltuinas, atque Jerinas immanes que Longobardorum leges accipit In Italia zero, (si Raren- nam excipias) resistente ab initio barbaric Gnthoriim, nnnqnam floru- erunt ; vixque taudem emerserunt, anno 1530. He adds, that the copy of the Pandects found in the time of Lothario, ! 1 35, were given by that prince to the Pisans, who asked it as a reward for the assistance given him by their fleet against Roger, duke of Apu- lia, and count of Sicily. The copy was transported, after the cap- ture of Pisa, by the Florentines in 1400, to their capital. From this copy all the other Latin editions are supposed to be de- rived. Gravina imagines the Novels to have been spread over Italy before that time, and he mentions Ivo of Chartres, as speaking of the civil law of Justinian, and the Pandects, before which time, if they had been met with, they were soon forgotten, and suffered by sluggish indift'crence, to sink into oblivion. A copy of the Novels was found at Ravenna, and, some have supposed, another of the Pandects. It is probable, as Gravina conjectures, that many books of the civil law, dispersed over Italy, when the thirst for Roman jurisprudence revived, were rather recognised than discovered ; agniti potius fuere, quam repcrti. Gravina, de ortu et progrcssu juris civilis, § 139, 1+0, 141. Gibbon's History, chap. 44. See also Giannone, Istoria di Kapoli, lib. xi. ch. 1 1, who mentions the date of tlie epistle of Ivo concerning the Pandects, to have been about the year 1099 T 372 THE MARITIME LAW J'art J, The Pisans made the first Code of maritime laws. in Italy, from whence it has been taken, and re- ceived by all maritime states, tor the regulation of their nautical concerns, and has passed from hand to hand among all nations, as the interests of commerce made them teel the want of such laws. I shall, there- fore, consider the Pisansatthe period abovemention- ed, the first legislators of maritime commerce in the Mediterranean, since the proofs produced, place in the clearest light, the error into which those authors, cited in the 13th, 14th, 15th, and 40th paragraphs, have fal- len, in regard to the supposed origin of the Consolata del Mare. 1 have further pointed out the mistakes of the author of the preface^ found in the beginning of almost every edition of that Code, and have shewn, that it deserves no regard, and is wholely destitute pf authority. ARTICLE IX, Of the Amaljitan Lazvs. § 1 . THE city of Amalphi, situated on the con- fines of the ancient Lucania, in the very place for- merly inhabited by the Picentines, now the province of Salerno, in the kingdom of Naples, was bathed by the ocean along its whole shore, and which was also called the coast of Amalphi. This city was originally built by some families who fled from Rome, to escape from the tyranny which reigned in that capital, towards the close of the ninth century. In sailing towards Constantinople, where these co- Chap. IV. OF EUROPE. 37: The ancient wealth and splendor of Amalplii. lonists wished to settle, they were shipwrecked on this coast. The lofty promontory, not far distant, which appeared an emblem of the liberty and secu- rity of commerce, offered an attractive, and commo- dious assylum. 2. Its great population, wealth, and flourishing commerce, celebrated by the poet, William Pugli- esc,(328) rendered it so powerful at sea, that its na- val forces, as appears from the history of the middle ages, were more than once employed to assist the sovereign Pontiffs, against the Saracens. (3 29) They made frequent voyages to the Levant; and it was to favor the commerce of the Amalfitans with the Turks, to whom they carried new merchandise, (3 30) that (328) Urbs hccc dites opum, popidoqice referta tidetur. Nulla 7naQ:is locuples argcnto, vestibiis, auro, Portibus iniiumeris hac plurimus urbe moratur, Nauta maris, Civltque vias apcrire paratus. line et Alexandri gens hivc/reta plurima transit. Hie Arabes, Indi, Siculi noseunlur, et Afri. Hac gens tolum prope nobilitala per orbcvi, Et viercandajcrcns, et amuns inercata refer re. Gul. Piigliese, lib. 3, 1'ocm. Histor. (329) Muratori, in his Annals of I tali/, ot the year 1077, speak- ing of the surrender of Amalphi to Robert de Guiscard, calls it the most commercial city of the age, abounding with inhabitants, ships, and gold, " Citta allora mereanlik ul sommo, picna d'oro, piena di popolo, et di na-d." (330) Inter eos auton qui loca pradicta tentaverunt, fuerunt Tjri de Italia, qui ab urbe, quam incohint, dicuntur Amalphi- 374 THE MARITIME LAW Part I, The Amalfitans establish commercial houses in all the ports of the East. they received great indulgence from the caHph of Egypt, who gave them a place at Jerusalem, where they were permitted to retire, and reside in their dif- ferent voyages. This gave rise to the order of St. John of Jerusalem, so celebrated in the history of ehristianity.(33l) 3. The constant navigation of the Mediterranean, by the Amalfitans, rendered it necessary to form esta- blishments in every port, for the reception of their merchandise. They possessed many of these places of deposit in Sicily ; they had one in the sub- urbs of Palermo ; and at Messina, and other cities of the island, they had warehouses for their goods, which were called Amalfitan. At Constantinople, they were in possession of the church of St. Andrew, with a certain quarter of the city, in which they en- joyed many privileges, and immunities. They filled the Levant with their commerce, and none but the merchants of Amalphi, were to be seen at Antioch, Alexandria, in Syria, in Arabia, in India and Africa, where they were the first to carry their new products, and manufactures. At the end of the history of the Florentine Pandects, by Henry Brenkmann,*aDutch tani Hujus regionis habilatores, ut prcediximus, primi merces peregrinas, quas oriens non noterat, ad supradictus partes lucri fa- ciendi gratia inferre tentuverunt . William, Archbishop of Tyre, Histoire de la Guerre la TerreSainfe, liv. 18. (331) Sigonius, de Regno Ital. lib. 9, p. 387. * This history was published at Utrecht, in 1722, in 4to. The Chap. IV. OF EUROPE. 375 The court of admii-alty at Amalphi was in high repute. lawyer, are two learned dissertations, in which he describes the grandeur of this city, and its famous ar- senal, for the security of its harbour, and coasts, ves- tiges of which were yet to be seen at the end of the 16th century. 4. From these facts, it is natural to conclude, that the Amalfitans, so celebrated for navigation, and ma- ritime commerce, so rich and powerful, and so well received, and highly favored by all nations with whom they had any commercial relations, must have made laws adapted to the circumstances in which they were placed. Their long experience, the dangers they encountered, and the frequent controverted cases which arise in commerce, must have obliged them to publish some regulations on the subject. We know, from history, that a high court of admiralty was esta- blished in that city, to which all the nations in the Mediterranean resorted. Even Constantinople refer- red maritime disputes to that tribunal, to have the be- nefit of its equitable decisions. The inhabitants of A- malphi, in a short time, acquired immense riches, and obtained the highest respect at Constantinople, on account of their great attention to commercial afiairs, and their profound knowledge of this branch of juris- prudence. If the mariner's compass, as some au- thors assert, was invented by the Amalfitans, who, in author undertook a pilgrimage to Florence, where he spent several years in the study of a single manuscript. See Gibbon, chap. 4I-, note. See also Giannone, htoria di Sapoli, lib. xi. ch. 1 1 .,..T. 876 THE MARITIME LAAV Part I The Code called the Amalfitan Table. my opinion, were only the improvers(332) of it, a na- tion so experienced in navigation, would undoubted* ly be desirous of regulating commerce by a particu- lar Code of Jaws. 5. Martin Freccia, who wrote in 1570, speaks of a work of naval jurisprudence, called the Amalfitan Table. He affirms, that it eclipsed the Rhodian law ; that by this Code all maritime affairs were decided ; and that in his time it possessed more authority than any other.(333) Henry Brenckmann confirms, and supports the opinion of Freccia : yet he leaves in obscurity, the period when this Tdble was formed. We are ignorant, also, of the laws which it contained, and at what time they were in force at Amalphi, since no other historian, after Martin Freccia, makes men- (332) See my Dissertazione sulla Bussola nautico, read before the Royal Academy of Florence, lO^h September, 1793, printed by Pliilippi Stecche, in which, I have incontestibly proved, that the French were the first inventors of the mariner's compass, and that the Amalfitans only made improvements in it ; but the Portuguese first carried it to perfection, and successfully employed it in the dis- covery of tlie new world. (333) In regno non lege Rhodia fuaritima decernuntur, sed Tabula, quam Amalphitanam vacant, omnes controversm, of/ine.s Ute,s, et omnia maris discrimina ca lege, ac sanctione usque ad heec tcmpora finiun- tur. Freccia, de Subfeudis. See Giannone, Isloria Civile di Na- poli, torn. 1, liv. 7, ch. 3, p. 462, &c. and Nicolas Fortunalo, Re- flessione intorno al comuiercio antico c moderno del regno di Napoli, lib, 1, cap. 4, and D. Paul Jorio, in liis celebrated work, enfitled,. Sloria del Coinmercio, e ddlu Narigazione. Chal). IV. OF EUROPE. 377 Eleanor, dutchess of Giiienne, coinpiled the Role d'Oleron. » tfon of them, except M. Signorelli, who, in his excel- lent work, entitled, Delia Coltura dell dueSicilie, § 7, drops but one unimportant word concerning them. ARTICLE X. Of the Laws of Oleron. § 1. THE people of every state, conforming to the primitive laws unfolded in the preceding pages, have formed for themselves a system of maritime le- gislation, adapted to their own constitution, and local usages ; but the fundamental principles have been taken from the ancient sea-laws. 2. Queen Eleonora, dutchess of Guienne, on her return from the Holy land, observing the high repu- tation of the Consolato del Mare, which had acquired the authority of law throughout the Levant, immedi- ately caused a compilation to be made of the mari- time sentences and judgments of the West, under the title of Role d'Oleron, from the name of the island on the coast of Guienne, and which she intended(334) should serve as rulesof decision in all questions relative to navigation and maritime commerce. Her son Ri- (334-) Tlie island of Oleron, is situated at two leagues distance from thecoast of France, near Roclielle ; it is five leagues in length and two in breadth, and contains 12,000 inhabitants, most of whom are excellent seamen. Vol.. r. ^-p. 378 THE MARITIME LAW Part L Richard I. adopts and improves the laws of Oleron. chard I. king of England, and duke of Guienne, af- terwards adopted this collection, to which he added various decisions relative to maritime affairs, preserv- ing, however, the title of Rokj or Jugement d'Ole- ron. 3. It is from these additions, that Selden(335) in- fers, that the Role d'Oleron is an English work, pub- lished by Richard, in his character of king of En- gland ; and this has been repeated by Blackstone.* (336) But it is only necessary to glance at the work, (335) Ut quentadmodum Rhodicc leges nauticoe, seculis in vetuS' tiorihus Rhodios fuisse Greed maris dominos (ut res ipsa se habet) prohant, ita Oliarenscs leges hujusmodi vim in mart sortitce, a primu earum institutione, Auglics regem ulpote auctorevi suutn, maris cir^ cumvicini dominum nunquam non recognoscunt. Selden, Mare Clau- sum, lib. 2^ cap. 24, p. 462. (336) Commentaries, Vol. I. page 417, and Vol. IV. page 425, 12lh edition. * Blackstone refers to the Us et Coutumes of Cleirac, and to the 4th Institute, p. 144. Coke's authority is a passage in the cele- brated record in the Tower of London, before mentioned, which is, in fact, the authority for the assertion of Selden, Blackstone, and the other English lawyers. The words are, 2w« quidem leges ct statuia per dominum Richardum quondain regem Anglicc in reditu suo a Terra Sancta correcta fuerunt, inteipntata, et in insula Oleron publicata, et riominata in Gallica Lingua, La Ley Olj/ronne. The laws, and statutes here referred to, are those made under former kings of England, relative to the court of admiralty, for the preser- vation of peace, and the punishment of all offences committed oa the Britisli seas, and the concluding sentence above quoted, leaves the matter in so much obscurity that it can hardly be inferred from Cliap. IV. OF EUROPE. 379 The Role d'Oleron is not »n English work. ■ * . , ■■ to be convinced, that those two writers, from a desire to flatter their nation, have erroneously attributed to Richard, the glory of having composed this Code y not considering that queen Eleonora was at that time dutchess, and her sons, dukes of Guiennc, for which reason it was written in their native tonf^ue. The Role d'Oleron, was published about the year 1 130, when Eleonora was wife of Lewis, the younger, by whom she was repudiated, and the marriage declared null, by the council of Beaugenci, the 18th March, 1152, on account of relationship, though they had cohabited, as married persons, for near fif- it, that Richard I. was the original compiler of the laws of Oleron, though they might have been afterwards pubhshed in his name. The copy of the laws of Oleron, inserted in the Collection of Sea Lams, and referred to by Selden, bears date in 1266; though the English compiler, and Selden seem to conclude, that this date is cither erroneous, or that the copy is not an original, but a subse- quent one certified by some notary. Cleirac asserts, that |hese laws were originally compiled and published by Eleonora, as men- tioned in the text ; but that Richard II, on his return from the Ho- ly land, made additions to them, and the whole were republished in Gascon French. Eleonora was the daughter and heir of William duke of Guiennc, and earl of Poictou, and married to Lewis VII, of France, whom she attended in his crusade ; but she was di^ vorced in 1152, and, six weeks after, married Henry II, king of England, who thus acquired all her dominions, and was suc- ceeded by his son Richard I. (Hume's History, Vol. II. p. !i67 .) Emerigon, in the preface to his work on assurances, after citing Cleirac, Selden, and Blackstone, concludes with saying, on looking over the Code, it will be seen, that it was made lor the province of Guiennc, and being the work of :i vassal of France, it properly belongs to that -country T. S80 THE MARITIME LAW Part I. Opinions of vvTiters as to the orighi of the laws of Oleron. teen years. She married, on the 1 8th May, in the same year, Henry, duke of Normandy, and count of Anjou, son of Godfrey the fair, or PJantagenet, after- wards, king of England. Richard the first, the third son of Henry and Eleonora, did not succeed his fa- ther as king of England, until the third of Septem- ber, 1189, when he was crowned at London, conti- nuing, however, duke of Acquitaine conjointly with Eleonora, who was still living. Besides, as the Jugement d' Oleron, related solely to the naviga- tion of the sea of Gascogny, and from Bordeaux to Rouen, without any regard to the navigation of En- gland, all that can be said in favor of the pretension of the English is, that Richard, who published it, must be considered as acting at the same time in his character of king of England. (357) But if the Juge- ment (TOleron, had been an English work, would it have confined its regulations to this small portion of the sea ? Would it not have spoken of the channel, the Irish sea, and other parts of the ocean, which En- gland at that time considered as her own dominion ? 4. If we reflect a moment on the contents of this Code, it will be readily seen, that it was compiled for (337) Vinnius,*in his Preface, ad Peckium, and in his Commen- tary ad leg. 1 . of the Digest, tit. ad legem Rhodiam. Cieirac^ Us et CoUumes de la Mer. Introduction. * Vinnius merely refers to the laws of Oleron, as the maritime law of France T. Chap. IV. OF EUROPE. 381 Cleirac's cdilion of tlie laws of Oleron. — Wisbuy. Guienne only, and that it belongs to France, since it was the work of a vassal of the crown, and related to a province, at that time a fief of the French monar- chy.* 5. The JiLgement d^ Oleron is contained in the first part of Clcirac, who has explained it by an ex- cellent commentary ; but he makes no mention of marine assurance, nor does it contain any thing rela- tive to marine interest, or the contract of bottomry. Perhaps this contract was not known at the time this compilation was made, or, at least, was not in use in France. f ARTICLE XL Of the Laws of Wisbuij. § 1 . AFTER the Jugement d'Oleron, there ap- peared a compilation of ordinances, by the merchants and burgesses of Wisbuy, a city in the island of Goth- land, belonging to Sweden, situate in the Baltic sea, and in the diocese of Lincossen. This city was for- merly the most flourishing mart, and fair in Europe ; at present, it is almost in a state of ruin. * Emerigon, Traite des Assurances, Preface, page 1 1 T. -j- In the Preface to the laws of Oleron, inserted in the Collection of Sea Laivs, p. 117, the author gives the introduction of Cleirac at length; and contents himself with saying, (hat " his arguments a8'3 THE MARITIME lAAV Part I. Origin of tlie city of Wisbuy. — A mistake concerning it. 2. Wisbuy* is derived from Wineta, a city of the island of Usedom. This island having been swal- lowed up by the ocean, the Goths built Wisbuy, to which they transferred the inhabitants who had es-^ caped from the destruction of Wlneta,(338) which, on account of its advantageous position, at the mouth of the Oder, had become a place of considerable trade. The learned Philip Melancton, and AdamBremens, who speak of Wineta, call it Veneta. This resem- blance to Venetia, the name for Venice, has, perhaps, led some wTiters into an error. They pretend that, a short time before Charlemagne, the island of Rhodes having lost its former splendor, by the irruption of various tribes of barbarians, and especially by the Saracens, who seized on most of the islands of the ?^Iediterranean, commerce, and nautical science pas- sed from the island of Rhodes, and the Mediterra- nean, to the island of Gothland, and the Bahic sea. But the distance of these places from each other, ren- ders this supposition inadmissible. We have, besides, monuments of the maritime power of the Northern nations, and of their skill in the art of navigation. are so poor that they hardly need an answer." The reader is fur- ther relbrred to the Introduction to the System nf the Laxv of Ma- rine Insurance, by I. A. Park, p. 30, 3 1 ; and to the Treatise on the Lav: of Insurance, by Samuel Marshall, p. 16, of the Introduce tion....T. * See the Preface to the " Laws of Wisbuy," in the " ColJe^:^ tion of Sea La\vs."....T. (338) Petrus Berth, Comment, in Wysbia, lib. 3. Chap. IV. OF EUROPE. 383 The laws of Wisbiiy were publishai in the 12th ccsiturj-. that render it necessary to recur to a more remote aDra. We read in Tacitus, that the SueoncSy or the Swedes, surrounded by the seas, were powerful on the ocean ; and that their vessels, more commo- dious than those of the Romans, and on account of their having double prows, might touch the land without being turned round. (3 39.) 3. The laws of Wisbuy, so celebrated by the wri- ters of the 12th century, at which time this mari- time Code made its first appearance, as the pre- face preserved by Leibnitz, (3 40) in an ancient ma- nuscript informs us, are a proof, that maritime com- merce had long flourished in the Northern countries of Europe. These laws, at their first origin, were adopted by all the nationsof the North ;(341) butthe precise time is not known, and, if we may believe Selden, it was not prior to the year 1288.(342) 4. The Northern writers pretend, that the laws of Wisbuy are anterior to those of 0/i7wz.(343) Clci- (339) Tacitus, de Moribus German, cap. 44. (340) Script. Rerian Brunsick, (om. 5, p. 750. (341) Olaus Magnus, Ilistor. lib. 10, cap. IG. Herherstein, Herum Miiscovit, Cumment. p. 1 IS. (342) Selden, Mare clausum, lib. 2, cap. 24. (343) Kuricke, Ruhr, ad Jus Marit. Hnnseat. p. jS7. Lubeck, de Atari is, p. 105. 384 THE MARITIME LAW Parti. The laws of Wisbuy were received among all tlie nations of the North. rac, in the preface to his work, entitled. Us et coil- times de la mer, strongly asserts the contrary,* and his opinion is confirmed by Limier, in his history of Sweden. He pretends, that they were held in as hio-h esteem in the Baltic sea, and among all the na- tions of the North,f as were the Rhodian laws, and the Jugement d'Olero?i, in other parts of the world. This led Bouchard to consider them as a supplement to the Role d'Olero?i.{344) However this may be, Grotius(345) pretends, that the authority of these laws extended to Denmark, and Sweden, and that they were adopted by the nations beyond the Rhine. Lex Ehodia navalis pro jure gentium in illo mari Me. diterraneo vigebat, sicut apud Galliam leges Oleronis etapud omnes Transrhenanos leges Wisbuenses. Per- haps Grotius did not, at that time, know of the Con- solato del Mare.(346) 5. The 45th article of this Ordinance, makes slight mention of the contract of Bottomry, and the 68th * See Emerigon, Trade des Assurance, Preface, page xi T. ■\ Loccenius, de Jure Maritimo et Navali in Praefat. — Suce leges (Wyshyenses ) eandem ferine uuthoritatem hodie obtinent quam olim leges Wiodlce. Certe apud Transhenanos populos, respub. Ilanseati- cas, et in Regnis Borealibus communl usu reccptm et quasi jure civi- taiis donatce sunt....T. (S^i) Bouchard, Theoric des Traite de Commerce, chap. 4, sec. 3. (345^ Grotius, Mare liberum. f3V6) Olaus Magmis, and Heberstein, ibid. Chap. IF. OF EUROPE, 385 Of the laws of Marseilles — Origin of tliat city. article speaks of sureties given for ships. It ap- pears, from this, that the contract of assurance, had, at that time, begun to be introduced into commerce, under the name, and form of surety ; and that, conse- quently, tlierc is no foundation for the opinion enter- tained by some writers,(347) that the origin of assur- ances cannot be traced further back than the 15th century.* ARTICLE XIL Of the Laws of Marseilles. § I. THE city of Marseilles, founded by the Pho- ceans,(348) the most expert navigators of ancient times, was, at first, an aristocratic republic. (349) The example of its founders powerfully contributed to (34-7) Stypmanus, dejurc Marit. part 4, cap. 11, art. 1, n. 3. Ansald, de Commercio, disc. 70, n. 6. Casaregis, de Cononercio, disc. 2, n. 3. Gibbalinus, de Usuriis, lib. 4, cap. 11, art. 1. * An English translation of the laws of Wisbuy, in 70 articles, is contained in the " Collection of Sf^a Laws." They were ori- ginally published in the Teutonick language, and, according to Olaus Magnm, lib. 10, cap. 16, were respected and received on all the coasts of Europe, from Muscovy to the Mediterranean. ...T. (34S) The ancient medals of Marseilles, on which is represent- ed a head of Minerva, the divinity of the Phoceans, seem to con- firm this idea of its origin. (349) Aristotle, Politics, lib, 6, cap. 7, Vol. r. 3C 386 THE MARITIME LAW Part L Pliny and Cicei'o highly commend the laws, 8x. of Marseilles. strengthen the natural propensity of its inhabitants to maritime commerce, the great object of their policy. By its wise and prudent institutions, according to Cicero,(350) more easily admired than imitated, play- ers, and all those who under the cloak of religion lived in voluptuousness, were banished from the , the most remarkable of which are those of the 6th June, 1702, to re- ward privateers; of the 28th July, 1705, of 1717, 1747, and 1748, for the same object ;(365) the pla- card and instructions for privateers, the 22d Febru- ary, 1793, confirming the former of 1781.(366) 3. Holland has long wanted a maritime Code of its own. It was difficult to establish one under the former system of government, when divided into se- ven provinces, each of which, or rather every city, possessing its peculiar usages, and private interests, always opposed to each other, it was impossible to unite in the establishment of a general system of legislation. At the present day, being formed into one regular republic, when a general peace shall restore maritime commerce, its first attention will, without doubt, be directed to the security of their commercial prosperity by good laws. * {365) Recueil der Placaaicn, Ordonnentien, ^-c. Bentrefevde de conrogen en rerdere zcezacken, t. 1 , (366) Nitrre Verzamelting van Placcalen, torn. 1, p. 36. " In Cleirac, p. 302, is ihc Coustoumier, pour I'/hsurances d'Am- sterdam, published the 31st January, 1598, in 36 articles.... T. 404 THE MARITIME LAW Part L Mai'itime laws of Spain. — Various Codes. ARTICLE XVII. Of the Laivs of Spain. § 1 . THE civil law of Spain consists of a great num- ber of particular laws, from which the government has from time to time, made compilations in the form of Codes. Of these the most ancient is that of Alphonso thelXth, an edition of which was published in 1587, with a commentary, by Gregory Lopez. Others ap- peared in the reigns of Ferdinapd V and Isabella of Castile, and Philip II. 2. These different Codes, designed for the mer- chant, as well as the military marine, have particular titles, such as, Fiiero Juzgo, Fuero Beat, Leyes dc Fartidas, Leyes de la Recopilacion^ Curia Philipica, These different collections, form the principal mari- time jurisprudence of that vast monarchy. The af- fairs of commerce, which concern individuals only, are decided by marine usages, in the manner and form received among the Contractaciones, that is the chief commercial houses, in the great cities of the kingdom. 3. The Consolata del Mare is received on the coasts of the Mediterranean, belonging to Spain ; and in relation to warlike equipments, assurances, and va- rious other objects, the particular ordinances known by the name of Capitidos de Barcelona, are also in force in those parts of the kingdom. Chap, IV. OF EUROPE. 405 DUVerent Codes of maritime law in Spain. 4. The laws and ordinances of the Consulate of BiLboa regulate the maritime affairs which arise on the coasts of the Atlantic. They were arranged and collected for the last time, under the reign of Philip V, and approved by the Council in 1760 ; some or- dinances concerning average, and assurances were added to them, in 1768. 5. All matters which concern the commerce of the two Indies form a distinct class, and arc subject to the laws and usages of the Contractacion, or Consii- late of Seville, and of the port of Cadiz, and to the de- cisions and ordinances of the royal Council of the In- dies. The first compilation of the laws and usages for those countries, was made in 1563 ; two others were added in 1680, and 1696. There is, besides, a law relative to privateers, Ordenanza paranavegar en corso, of 1621, with las Cedulas* of 1623, and 1624, and others of 1702, and 1718, the principal ar^ tides of which are inserted in the Tratado subre de las PresaSy by D'Habreu ,(367) another of 1740, and the last of the 1st July, 1779, with the regula- tion of the 15th March, 1780.(368) (367) D'Habreu, Traiado sohre las presas. Bcrtodaiio, Collection de las Tratadosj torn. 1, p. iii. (368) Martens, Rccueil dcs Traitcs, torn. 4, p. 329. *^' Orders, or decrees. 406 THE MARITIME LAW Part I. Maritime laws of Portugal. — Laws of Antwei-p. ARTICLE XVIII. Of the Laws of Portugal. § i. THE maritime laws of Portugal, are nearly the same with those of Spain, to which, as a part of that kingdom, it was a long time subject. The Portu- guese however, have some particular ordinances of their ancient sovereigns, which were afterwards con- firmed by John of Braganza, on his coming to the throne, at the time of the revolution, the history of Vv'hich is universally known. ARTICLE XIX. Of the Laws of Antivei^p. § 1 . IN former times the city of Antwerp was greatly celebrated for the magnitude, and extent of its commerce. Assurances formed an important branch of its maritime contracts, in the best days of that commercial city. The immense extent of its com.mercial operations and navigation gave rise, un- der the dukes of Burgundy, to the first laws worthy of attention on the subject of assurance. Philip lid, king of Spain, in 1563, added some ordinances con- cerning xcrecks, jettisons, averages, and other objects relative to navigation, all of which have been copied into the marine ordinance of France.* •^ In Us et Coutumes de la Mcr, by Cleirac, p. 295 to 302, we find the ordinances of Philip II, relative to assurances for the ex- change at Antwerp, in 20 articles, published at Brussels, the last day of October, 1593 T. Chup. IV. OF EUROPE. 407 Destruction of" the cotumei-ce of Antwerp. — Laws of Sweden. 2. The power of this city has been destroyed by one of those revolutions which transfer commerce and the arts from one nation to another. When the Dutch made themselves masters of the navigation of the Scheldt, this city lost, in a great measure, its com- mercial activity, and its laws are no longer known, since they are no longer supported by that flourish- ing commerce and navigation, which first gave rise to them. ARTICLE XX. Of the Laics of Sweden. § 1. IN 1608, and 1618, Sweden published some regulations for the merchant-marine. A collection of laws has also been made under the title o^ Legis- ierium Suecicc. This collection has been learnedly commented upon by John Loccenius.(369) It has been enlarged since that time by a general marine ordinance published by Charles XI, in 1667, to which was added, on the 20th of October, 1750, an (369) Joannis Loccenii, de jure marilimo. This work has just been translated into French by M. Bonncmart, a learned lawyer, with very interesting notes. It will be published in a short time.* • Loccenius was a learned professor of law at Upsal in Sweden, about the year 1670. His book, dc Jure Maritimo, docs not profess to be a par- ticular commentaiy on the laws of Sweden, but is a g'cneral and concise ireatis« on inantinnc law T. i08 THE MARITIME LAW Parti Laws of Sweden. — Laws of Denmark. ordinance relative to assurances, and averages, the greater part of which is taken from the marine ordi- nance of France, of 168 1 . 2. Sweden has also a regulation, relative to armed cruisers, of the 19th February, 1715, another of the 28th July, 1741 -, a declaration of the same regu- lation, of the 14th August, 1741; articles for the government of the naval forces, in 1755 ; and in- structions for privateers, published the 1st of July, 1788.(370) The present war has induced the Swe- dish government to renew, on the 21st of January, 1804-, its regulations concerning the navigation and commerce of its subjects, with the maritime powers, in time of war. ARTICLE XXI. Of the Laws of Denmark. § 1. THE maritime laws of Denmark, published by Christian V, are contained in the fourth book of the Code of the civil laws of that kingdom, entitled. Jus Daiiicum. There is also an ordinance concern- ing privateers, of the 5th April, 1710, confirmed by another of the 6th April, 1711.(371) (370) Kluit. Hist. Ficd. Belg. part 2, page -l-Sg, r371) Forord, jIfFivid. IV, 171 1, p. 23. Chap. IV. OF EUROPE. 4Q9 Ordinances of Denmark. — Laws of Russia. 2. Christian VI, on die 1st July, 1746, published hi§ royal charter to the assurance company instituted at Copenhagen, which contains many wise regulations, on the subject of insurance, and on averages. A new royal ordinance of the 4th May, 1803, regulates the conduct, and ascertains the duties of merchants and seamen, belonging to the Danish dominions, in time of war between the maritime powers. Aplacardwas afterwards published by the king, the 8th June, 1 8U3, to modify the IXth regulation of that ordinance ; another ordinance(372) appeared the 30th Decem- ber in the same year, concerning the salvage of ships, and goods shipwrecked on the coasts of Holstein, or on the shores of the Danish provinces in Germa- Tiy.(373) ARTICLE XXII. Of the Laws of Russia. § 1. THE sublime genius of Peter I, and his en- terprising character, gave birth to a project unknown to his predecessors, that of taking a distinguished rank among the powers of Europe, though most of his dominions lay in Asia. Enlightened by the va- rious observations made during his travels, in which he spent two years, in disguise, under the name of Michaelof, in the ship-yards of Amsterdam and En- gland, where he learned the art of ship-building. In- (372) See Blhiiolhequc Commcrciale, by M. Pfticiief. 180" (37 3) BibliotheqKC Ccmmerclnle, IHO".. Vol. J. .IF 410 THE MARITIME LAW Parti. Great enterprises of Peter I. structed by the counsels of men of merit assembled around him, Peter soon perceived, that, to obtain an influence in the affairs of Europe, it was necessary to open a vent into the Baltic for the numerous and rich productions of his vast empire, and, at the same time, to establish a military marine, that might make him known to the other European powers, and to give law to those of the North. 2. The inconsiderate war commenced against him by Charles XII of Sweden, who was beaten at Pultowa, the naval victory obtained over the Swe- dish admiral Ockrenskield, enabled the Czar to at- tain his first object. He penetrated through Ingria to the gulf of Finland, and soon after, in 1703, the superb city of Petersburg arose out of the marshes of the Neva, to become the capital of the Russian empire, destined one day to be ruler of the Baltic, He executed the dif^cult work of forming a junc- tion between the two rivers, which, traversing his empire, open a course of more than eight hundred leagues from Petersburg to the Caspian sea, at the same time that he civilized the inhabitants of the arid deserts of Siberia. Peter having crushed Swe- den, and subverted the power of Poland, laid the foundation of that grandeur and glory, which the nation of the Aluscovites, a nation of barbarians at the close of the 17 th century, has now attained. 3. Notwithstanding all these advantages, and the rich productions of his empire, the Czar did not disco- ver the true system of encouraging the navigation of his subjects, by wise laws, and by the establishment Chap. IV. OF EUROPE. 41 1 • ' ... Maritime laws and tribunals of Russia. of a sufficient number of tribunals for the special pur- pose of deciding all maritime affairs. He did too much for his naval forces, and not enough for the merchant-marine. If he had employed a part of the sums expended on useless gallies, and a moderate fleet, in giving facility to the commerce of the ports of Riga, Petersburg, Revel, and Archangel, the marine of his vast dominions v^'ould have felt, at the present day, the beneficial effects of such a measure, while, in fact, it now falls far short of that magni- tude, importance, and prosperity, it might have at- tained. 4. There arc, it is true, several tribunals in Rus- sia, which take cognizance of maritime and com- mercial disputes, according to the account given us by M. Peuchet, in the second volume of his com- mercial dictionary. These are, the court of the cus- toms, which decides, in a summary way, all matters demanding a speedy determination ; the exchange magistrate, to whom is referred questions as to char- ter-parties, bills of exchange, and other obligations of a similar nature J the court of police, which takes cognizance of affairs incident to that part of the in- ternal administration ; the senate, before whom is brought all matters in controversy between parties, that require a legal discussion and a formal determi- nation : but all these courts, for want of precise laws, are very slow in giving judgment. The college of commerccy as it is called, constituted by a special commission from the sovereign, must be considered j^s a council of statesmen, who regard merely the 412 THE MARITIME LAW Part L Delays in the decision of causes in Russian com-ts. grand features of commerce, and take notice of those affairs only that are essentially connected with the political views of the government. 5. The decision of causes litigated in the Russian territories, on the Black Sea, is far more tardy than at Petersburg, because the native Russians, sure of finding favor there, are certain of bringing before the senate all the causes the least compHcated, which cannot be determined by the summary adjudication of the court of customs, or the other courts establish- ed there ; a foreigner is thus compelled to go to the capital to plead his cause in person, or to employ a Jawyer, which renders the proceedings more ex- pensive, difficult, and dilatory. 6. Catharine II, who governed the Russian em- pire with so much glory, perceived the necessity of creating a Code of maritime law for her dominions : she laid the basis of it in the plan which she publish- ed for making the compilation. She openly expres- sed her opinion, in 1780, on the sole object of the conventions she had produced among the maritime powers of Europe, as to the effect of establishing a . maritime Code, which should forever fix the rights of neutral nations, in time of war. In the mean time, she began by publishing, in 1784, an ukase, or ordi- nance, making some alterations in the former com- mercial regulations, for the possessions she had ac- quired on the Black Sea, and, principally, for the city of Cherson, founded by her, on the banks of the Dnei- per. By an ukase of the 31st December, 1787, she published regulations for privateers, and concerning^ Chap. IV. OF EUROPE. 41 ^ Laws ofotlier Nortliem states of Europe. privateering, in time of war. These regulations, for their wisdom, deserve to be imitated by the other powers of Europe. (37 4) Alexander I, the worthy successor of that great princess, considering the sa- gacity of his character, will not tail to follow the plan traced out by his illustrious ancestor, and to give to his empire a Code of maritime laws, the want of which is every day felt in the course of commercial and maritime transactions. ARTICLE XXIII. Of the Laxvs of other Northern States of Europe. § 1. PRUSSIA, Lubeck, and some of the Han- seatic cities, regulate their maritime affairs by par- ticular statutes j but it is not known that any other cities, dependent on the German empire, or the em- peror, have any laws on this subject. It is well known how celebrated, throughout all Germany, is the Judicium mercatorum ; besides, all the countries in which the civil law is observed, have recourse to that as the common law, for the decision of all matters re- lating to commerce and navigation, whenever the lo- cal laws arc silent on the subject. 2. In the countries subject to the dominion of the house of Austria, the city of Trieste, with its depen- dencies, such as Fiumo, Carlobargo, and Portoro, re- gulate their maritime affairi.;, in conformity to the edict o^ merchant-navigation, promulgated by the em- press Maria Theresa, the 25th April, 1774. (374) See the Collection of treaties, by the learned M. Martens, Vol. 4, page 507. 414 THE MARITIME LAW Parti. Of tlie Ottoman la«g. ARTICLE XXIV. Of the Ottoman Laws. § 1 . WE do not know of any maritime laws pecu- liar to the Ottoman empire, and to the regencies established on the Barbary coast, subject to the grand Seignior. It appears, that they are acquainted with no other than those of the nations with whom they traffic. Formerly, vessels were not allowed to navigate in the different ports of the Levant, except under the protection of the French flag. The con- suls of that nation were the only judges of all differ- ences relative to maritime commerce, either between Frenchmen and Turks, or between the former and the inhabitants of the country. But, at the present day, an entire change has taken place, since other nations are permitted to trade there in their own names. — The Cadis of the different sea-ports, in fact, ob- serve the different usages adopted by the different commercial nations, and religiously conform to them, in deciding differences of a mercantile nature, which arise between Turks and strangers, and it sometimes happens, that even the French are subject to their jurisdiction.* * The French have now lost all favour and influence in the do- minions of the Ottoman Porte, and the English have become the most favoured nation, and will probably, by means of their great naval power, and the possession of Gibraltar and Malta, maintain that ascendancy in the Mediterranean once held by the French. ...T. Chap. IV. OF EUROPE. 415 Maritime Jaws of Naples. — New Code projected. ARTICLE XXV. Of the Laws of Naples. § 1. CHARLES III, who died king of Spain, when he was king of Naples, collected all the most useful and necessary laws relative to navigation, and maritime commerce, in the 1 4th act* of the 31st Ja- nuary, 1759, and reduced them into 72 chapters. To prevent any confusion, he abolished all former de- crees, and all previous laws relative to maritime sub- jects. 2. Ferdinand IV, the reigning king of Naples, by the 18th act, of the 5th February, 1764, entitled, De officio supj^emi magistratus commerci?\ has regulated and placed in better order the jurisdiction of the su- preme magistrate of commerce, as well as that of the Consulate, by specifying the particular cases in which each must exercise their jurisdiction. 3. Persons are already engaged in this kingdom, in the compilation of a new maritime Code, the pub- lication of which is expected. (37 5) The king, after * Pragmatique. — This word is often used substantively to sig- nify those acts or ordinances, which are passed by a sovereign to regulate his own estates and family. ...T. (375) In 1789, during my journey to Naples, I had occasion to read this new Code, which was about to be printed in tour volumes quarto, of 500 pages each. The disgusting prolixity, and want of method in this work, which has been executed by M. Jorio, then a member of the court of commerce, made me suppose that i^ would never be published, and the cr«nt has so far justified mv predictions. 416 THE MARITIME LAW Parti Maritime laws of Venice. making, on the 20th February, 1764, an ordinance relative to marine assurances, which is a sequel of the edict of his father, published the 11th April, 1761, has thought proper to abolish the court of the high admiral, and to substitute in its place, by an edict of the 6th December, 1783, a tribunal, called the admiralty, to which is given, the jurisdiction of maritime affairs. He has, besides, published, in an edict, of the 15th March, 1787, a tarif of Consular fees. In all other cases, the ancient acts, and the decisions of the civil tribunal are observed. The marine ordinance of France, of 1681, possesses great authority there. ARTICLE XXVI. Of the Laws of Venice. § 1. VENICE is the only Italian state which has executed the great work of a particular maritime Code, adapted to its local circumstances. This re- public may boast of being the first in Italy which has a complete body of laws relative to the affairs of maritime commerce. It was published in 1786, un- der the title of the Codice per la Veneta mercantile marina. It was approved by a decree of the Senate, the 20th September, in the same year, and has thus acquired the force oi law. A supplement, contain- ing some corrections and alterations, was added, sanctioned by two decrees of the Senate, the one on the 6th August, and the other the 19th September, of the same year. VMp. IV. OF EUROPE. 417 Maritime laws of Tuscany. — Laws of Genoa. ARTICLE XXVII. Of the laws of Tuscany, § 1. TUSCANY possesses no other maritime laws, than those contained in the ancient statutes of the offices of assurances in the city of Florence, pubiislied the 13th March, 1522, by the council of one hundred ; but there is a very concise edict of the 10th of October, 1748, on commerce and the mercantile marine, to which were added, in 1787, the laws and orders already published to regulate the police of the harbour, and the wet docks and basons, adjacent to the port of Leghorn. The queen regent, infanta of Spain, desirous of distinguishing her government by some signal act of glory, will, without doubt, prepare a new Code on maritime affairs, of which the commercial places of Tuscany have much need.* ARTICLE XXVIII. Of (he Laws of Genoa. § 1 . THE republic of Genoa has no other regu- lation for its maritime affairs, than an ancient sta- * In the former edition of this work, written before the Italian slates were drawn into the tremendous vortex of the French revo- Jution, and before their governments, their laws, their wealth, and power, became the prey of the rapacious invaders of Italy, the preceding part of this sentence was filled with tiie name of Ferdi- nand III, whom the author praised for his glorious reform in the criminal Code of Ti:scanv....T. Voj,. I. ' 3 G 4ld THE MARITIME LAW Parti. Laws of Genoa. — Laws of Sardinia. tute pubJished in 1610, in which mention is made, book 2, chap. 4, in very concise terms, of some very brief causes, relative to maritime affairs. The 16th chapter of the 4th book treats o^ jettisons, and of the conduct which ought to be observed, on such occa- sions, Genoa, also, adheres to the decisions of its ci- vil tribunal called the Rota."* The lava's of the Con- solato del Mare, are in full force there. The work of Targa, also, entitled, Ponderazioni Maritime, is of high authority in the tribunals of commerce. This work is in all respects conformable to the usages prescribed by the Consolato del Mare, and to the ancient maxims of that place, which, for want of a stable law, adapted to the circumstances of the times, are often in opposition to the new decisions of the magistrates, and to existing usages. ARTICLE XXIX. Of the Laws of Sardinia. § 1. THE maritime states of the continent, sub- ject to the king of Sardinia, are acquainted with no other marine laws than those contained in the royal edict, rendered, the 12th March, 1749, for the free port of Nice, which renewed, and considerably en- larged, the privileges and immunities given by for- mer edicts, one of 1613, and another, for the re-es- tablishment of the supreme magistracy of the Consu- late in that city, of the 15th of July, 1750. This edict * Many of" tlie decisions of this court arc to be found in Straccha de Mcrcatura...,T. Chap. IF. OF EUROPE. 419 Maritime laws of Sardinia. increased the dignity, and extended the jurisdiction of this court erected by the edict of the 15th Octo- ber, 1733.(376) In these edicts are a few articles relative to marmc assurances, and shipwrecks. As to all other matters, the Roman law, the Consolato del Ma?\; and the decisions of the tribunals above mentioned, have the force of Jaw. 2. At the period of the publication of the laws contained in the Consolato (^lel Ma?r, Sardinia \n as under the dominion of the republic of Pisa. After several times expelling the Saracens, commanded by their king Musetto, they divided the island, in 1021, into four judicatories. (377) From 1165, it was posses- sed by the PIsans as a perpetual imperial fief, granted to them by Frederick II, emperor of the Romans, until 1327, when they were compelled, by force of arms, to yield it to king James of Arragon.(378) From this it may be presumed, with the greatest reason, that Sardinia, until that period, must have regulated its maritime affairs, according to the laws of the Pisans, which were already observed by other nations engaged in maritime commerce. (376) It is in this Court that I liad the honour to sit as a Judge, with the title of Senator, from the year 1782 to the 29th September, 1792, when the armies of the French repubhc seized on the county of Nice. (377) Sec my Geographical, political, and natural history of Sardinia, Paris, 1802, Vol. I. (37S) Treaty of peace made at Barcelona in 1327, between thr king of Arragon, and the republic of Pi?a. 420 ^ THE MARITIME LAAV Part I. Laws of the Consolato del Mare in force iti Sardinia. 3. The island having passed under the dominion of the king of Arragon, and received the same form of government to v^'hich the Catalonians were sub^ ject, the inhabitants were directed to conform to the usages and customs of Arragon, and in particu- lar, to the Consolato del Mare, published at Barce- lona. This is the reason why Vico, in his compila- tion of the royal acts of Sardinia, title 48, says, that the Consul was bound to conform to every thing prescribed in the 2'2d chapter of the Consolato ; and this is so scrupulously observed, that the secretary to the magistrate, in the register which he makes of the departure, and arrival ot vessels, never fails to enter the act of search, del Gatto^ prescribed by the 67th chapter of the Consolato.* 4. From the observations communicated to me by M. Chevalier Cossu,(379) mv worthy and ge- * Gatto, Cat. — This is the 66th chapter of tlie Consolato del Mare, in the edition of Casaregisof 1737. (379) M. Chevalier Cossu, is a man of distinguished learning, who, on account of his literary works^ deserves wellof his country. After the publication of the first Italian edition of my former work;, he did me the honour to write me the following letter, which is too valuable for me to omit this opportunity of preserving. ^'Cagliari, 29 maggio 1795. " Signor Stnatore stimatissimo. " Appena riconstrato, che pervenne in questa capitale il primo tomo dell' opera da V. S. illustrissiina recenlemente lavorata, rap- portante il Siaiemu universale de'i Frincipii dcldiritto maritihno dell- Europa, siccome ebbi la soddisfazione di leggere il Yaggionato di lei Dizionario universale della Giuritprudenza mercantile, mi pro- cur^i un esemplare di questa nuova produzione propria della pre- Chap. IV. OF EUROPE. 421 Ancient acts and laws of Sardinia. nerous friend, and countryman, it appears that there still exists in the archives of the city of Cagliari, a book entitled, Libre dc Consulat dels fets maritimo^ which is probably the same as that mentioned in article 8 ; also, a privilege granted by Peter I, in favor of the Catalonians, beginning with Recognovcnmt sente stagionc. Fii in vero tanto soddifacente il piacere ch' ebbi iiel leggerla, che stimai rileggerla, e farvi diversi riflessi, trattando una maleria, che interessa grandementc qiiesto regno, il quale per csserc isolate ha molta maggior cstensione nel marc territoriale, che nella superficie tcrrena : anzi per tutto quel vasto mare, che lo bagna dalla parle di ponente, gli antichi geografi I'atlribuirono la dcnoniinazione di mar Sardo ; ed a quella che trascone tra I'es- tremita Settentrionale di Sardcgna c meridionaledi Corsica (stretlo di Sardcgna.) Ebbi in consegucnza pure la dolce compiacenza di sentire, che le persona di vaglia encomiavano il lavoro, e si com- piacevano meco, che un Patrizio di Sassari acquisti presso le piu cuke nazioni quel credito senipre maggiore, che le utilissime sue letterarie produzione le tanno giustamente meritare. All' oggetto pero non consideri questa mia asserzione adulatoria per la prima >'olta che ho il vantaggio di scriverle, sofira che gli csterni il desi- derio, che avrei avuto di non osscrvarlo tanto conciso nell' articolo 25 (ora articolo 29,) nel quale annunzia le Sarde leggi marittiinc, poicche, se gli sfati del nostro sovrano al di la del mare non conos- cono che gli editti del 1613, 1626, 1733, 1719, e 1750, la Sar- dcgna sa questo particolare, oltre I'editto delli 30 agosto 1770 conserva ne' suoi archivi quanto ho stimato notare nell' unito tbglio. Spero che vorra condonarmi I'ardire d'ofhirli queste notizie di latto per tarne quell' usoche stimera. Dobbiamo alia patria, con)e dice, j>cguendo Temislocle, il Vico nel proemio delle Sarde Pramma- tiche, rispetti quasi divinali, ed il servire la propria patria non e un dovere chimerico, ma un obbligo reale, onde occorrendo di dover di essa far menzione, romettcre d'un Sardo quanto concorre per illustrarla in questi tempi massime, gli attira un capo di accusa, e regolarmente da quei, che non dando fuori letterarie fatiche con Iroppa facilita prendona a ccnsiirare le allrui. Emcnlre anzioso di 422 THE MARITIME LAW Parti. Vai-ious acts and maritime regulations of Sardinia. proceres, communicated to the city of Cagliari, to be in force there, with two other chapters relative to commerce, as well as an explanation published by king James I, his successor, in August, 1271 j the 37 chapters of king Peter III, in the Catalonian lan- guage, dated the 10th of the Kalends of December, leggereil secondo tomo di quest opera ed altre sue letterarieprodu' zioni alle quali prego di farmi associare, con insuperabile stima et sincere afletto ml do Tonore di protestarmi qual sono. " Div^"° obb™° servidore, " Cossu." My answer to this obliging letter; dated Florence, 2d July, 179jj is in these words : " Quanto sono senslbile, Sigi' Cave stimatissimo, alie gentili es- pressioni colle quali ella mi onora, nella di lei lettera del 29 scorso maggio, altrettanto mi dichiaro riconoscentc alia bonla che ha avuta di notarmi, nel foglio alia medesima unito, tutto cid die poteva aver rapporto alia no<;tra Icgislazione sulle cose maritime. Mi rin- cresce, the le memorie da lei favoritemi siano pervenute dopo la pubblicazlone del prime tomo, giacche non saprei piu rimediare alia mancanza involuntaria, che ho commessa nell' articolo 23, da lei giiistamente rilevata. Non manchero per altro di tenerne conto per I'occorrenza d'una nuova edizione; ed in tal caso rendero gius- tizia al di iei merito con farlene tutto I'onore. Mancando io dalla patria doppoi ventidue anni non potevano essermi noti gli antichj documenti e le materie che contengono : tanto piu dunque le ne debbo la mia riconoscenza per avermene ella somministrati gh op- portuni riscontri senza richiedernela; ed in cio hoammirato il sin- cere elodevole di lei patriotismo abbastanzaconosciuto per le varie eccellenti produzioni, che ella ha pubblicate sulle cose patrie. Per- raetta una volta il cielo, che venga nell' idea del governo la cor- raglosa risoluzione di ritormare I'indigesta immensa mole delle nostre leggi, per ridurle a quella semplicita altrettanto desiderata in simili materie, quanto proficua ai cittadini. Ignorcra ella f'orse_ che ne! 1790, ml fu ordinata dal sovrano la compilazione d'un Chap. IV. OF EUROPE. 42: Ordinances for regulating maritime affairs in Sardinia. 1340, for the regulation of maritime affairs, which he ordered to be observed in the kingdoms of Arragon, Valencia, Sardinia, Corsica, and the province of Bar- celona ; the 29 chapters which the counsellors of Barcelona published, relative to marine assurances, in 1484, with various other ordinances, emanating from those sovereigns, Irom the authority of the civil ma- gistrate, and some others, collected by the Cortes, or general assemblies, at the instance of the magistracy of Cagliari, and particularly those by the Cortes, held in 1G05, under the Viceroy, Count Dclda ; in 1615, by the Duke de Gandia ; in 1663, by the Marquis of Bayonne, all of which are given by Dexart, in his collection, entitled, Capi/utos de Corte, from the year 1421, to 1633, under the title de Gravaminibiis. We find also in the same collection, book 3, lib. 12, chap. 30, that, in 1605, and 1633, they had fixed the juris- diction of foreign Consuls, resident in the kingdom, after the abolition of the treaty, called mealla, or vial- la, which took from them, and gave to the consular nuovo Codlce di leggi siilla marina mercantile per tutti gll s(a(i di S. M. lo resegiiii ed ebbi I'onore di rassegnarlo al "^ovTano nei principio d'ottobre del 1791. Fu il mio lavoro assai gradito, c lodato, ma fu posto anche in oblio. Non posso dire se il poco me- rito del lavoro, o I'invidia I'abbian fatto metterc da parte. In tjualunque modo, io I'ho sempre sotlo gli occlii e mcdito la sua piib- blicazionej sia per utile della societa, die per mio proprio interesse, onde non sia un giorno obbligato ancli' io di ripettere, has ego rei- siculos feci, tulit alter honores. Mi onori de di lei prcziosi coman- di, e mi creda collapiii pcrletta Jlima e considerazionc. De"^o abU"o servidore, D. A. AzifNT. 424 THE MARITIME LAW Part I. Maritime laws now in force in Sardinia. magistracy, the jurisdiction over all foreigners who had no Consul of their own nation, and to take them under its care and protection, until they should be provided for by their respective governments. 5. The laws relative to maritime affairs now in force in the kingdom of Sardinia, are, the Considaio del Mare above mentioned, in all the cases which have not been expressly abrogated by the decrees of the sovereigns of Arragon, or by the Capitulos de Corte^ published under the government of the reign- ing house of Savoy ; the last edict of Charles Emma- nuel, for establishing Consulates throughout his king- dom, dated the 30ih August, 1770, exactly copied from that relative to the Consulate oi Nice, and con- firming to the captain-general of Cagliari, the privi- lege of deciding causes relative to marine captures, as well as the right of a general intendant to deter- mine all cases of seizure for contraband ; the edicts of the government and magistracy of the royal Au- dience of the United Chambers 3 and, lastly, in case of necessity, the Roman law. END OF VOL. I. 8 3) m < m n r 00 4:^0 United States Department of State Library < r ^ fk 'h^ %-. >y m-