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There is nothing any more surprising, in the admirable coincidence which has been stated to exist between ancient and modern judicial precedents, than the simple fact that the entire series of them, extending from the days of ancient Rome to those of modern America, constitute a uniform and perfect system of practical ethics. A total exemption from whatever is inharmonious and discordant, in a system like that, is only appropriate to it. So, among the great cluster of authors who have written upon commercial law, so far as regards their subject matter, there is no discrepancy; though in point of style and method, some have a claim to prefer. ence over others. There are examples, showing that authors upon commercial law, accomplished in those respects, have transmitted their names to remote posterity, when even the materials they made use of were culled from some less logical and classic predecessor, after his name had been consigned to oblivion.* Again, so entirely undiversified are the true principles of justice and morality, that compilers and expounders of them, of the highest order in elegance of diction, have caught at the lucubrations of another, of as high order in all respects. Cicero acknowledges that in his renowned profound work on Offices, he availed himself of the labors of Panactius, and long after the time of Cicero, his consummate production became the foundation of the writings of the two celebrated publicists, Grotius and Puffendorf. As the poet has it,
“What can we reason, but from what we know ?" It is indeed true, that prescriptive commercial law has, in no small number of instances, by direction of the sovereign power, been made to assume the form of positive law, by a reduction of it into systematically arranged written codes and ordinances. But such codes and ordinances were intended only to be understood as evincive of what had already be. come established as prescriptive law. Hence, notwithstanding a change in form, the pristine prescriptive character was left unchanged. These remarks apply to the maritime codes of the ancients, and to those which have done credit to the middle ages, all of which have been deemed a rich legacy to modern maritime jurisprudence. As one instance of the respect paid them in the occidental world, it may be mentioned that the celebrated “Laws of Oleron,” compiled as early as the reign of Richard I., were adopted by the government of the colony of Rhode Island, in the year 1647, or about ten years from the settlement of its territory. The object, as it was expressed, was “for the benefit of seamen.”It may be added, that
* As evincive of this, we give the following note from Kent's Com., vol. 3, p. 251, ed. 1832. “In the immense edition which was published at Amsterdam, in 1669, of the various works of Straccha, Santerna, and others, on nautical and marine subjects, we have laborious essays, replete with obsolete learning, on different branches of commercial law, of no less than twenty Italian civilians, whose works are now totally forgotten, and even their very names have become obscured by the oblivion of time. Subsequent civilians may have erected stately tomes from the matter which their ruins have furnished.”
+ These doings are cited by Kent, (ut supra,) in the conclusion of his remarks on The Dissolution of the Contract of Affreightment, to show bow closely subsequent writers follow in the footsteps of those who preceded them, in ethics and in law.
| At Portsmouth, in the now state of Rhode Island, and upon the island of the same name, about twelve miles northerly from Newport, the representatives of the people of the colony resolved, in 1647, that the “ Laws of Oleron" should be in force, “ for the benefit of seamen.” See Early Records of Rhode Island. From the care which seems to have been taken to express the particular object in view, it is manifest that the resolution had especial reference to the huniane provision of the “Laws of Olc.un," making it incum
the case of Sims vs. Jackson,* as well as some others, was decided upon the authority of the “ Laws of Oleron.”
It is somewhat singular that an English judge (Wilmot) should have stated that the common law is nothing but statutes worn out by time; and that all law began by the consent of the legislature. Kent is of the opin. ion of the writer, that Wilmot laid down the origin of the common law too broadly. A great proportion of the common law, Kent thinks, grew into use by gradual adoption, and received from time to time the sanction of courts of justice, without any legislative act or interference. The latter jurist, it is plain enough, means to be understood that the most ancient written codes extant were based upon pre-existing usage, and put into written form for the sake of convenience, like the maritime codes referred to.
Prescriptive commercial law is as expansive in influence as it has been represented to be historical in origin. The coincidence is quite as re. markable between the commercial law of one nation and that of another, as the coincidence is between that of time past and the time present; and for the same reasons that have been assigned in treating of the latter. Cicero pronounced the law of Athens to be the same as that of Rome. With the same propriety may the commercial law of France be pronounced the same as that of England, and that of England, and of Europe in gen. eral, in principles, the same as that of the United States. This collateral relationship is worthy of the regard of the higher functionaries of government, and may be contemplated with unalloyed satisfaction by the moralist and the professed philanthropist. It tends to cement different nations by causing a consonance of feeling which begets a mutual complaisance and courtesy irreconcilable with a spirit of altercation and of war. Hence is it that commercial law has been styled, both by ancient and modern ci. vilians,“ public" and international” law. Mr. J. Park, the first writer who reduced the precedents of the English courts on the subject of insurance to the order of a regular science, remarks in the preface to his treatise on that subject, that although he at first contemplated a distinct chapter upon the subject of insurance, in the countries of Europe generally, yet, upon consideration that the law upon that subject must necessarily be the same in all countries, he relinquished it. Marshall, who, not many years after the publication of Park, followed him on the same subject, is very explicit to the same effect. He considers the prescriptive commercial law of other countries a part of the English common law; and he says, " the custom of merchants being understood, in any one particular, being once clearly ascertained in the supreme courts, acquires, from henceforth, the force of law, without the sanction of any higher authority." It would therefore, he considers, have been a useless labor for the legis. lature to enact those very usages, which are already deemed as a part of the law of the land. What is or is not the custom of merchants, says he, “is much better ascertained in the investigation of particular cases, in courts of justice, than it could be by parliament, with all the information and assistance it could obtain.” Here the distinction between positive and prescriptive commercial law is clearly made to appear.
bent upon the master of a vessel to receive back seamen whom he had discharged, provided they were penitent and ready to resume their services; and that it had also reference to the privilege conferred upon the mariner, if he had been unduly discharged, of following the vessel, and recovering his wages for the voyage, and the expenses of his return. This may be mentioned as one of the many instances of the intelligence as well as of the humanity of the very settlers of this country.
* See 1 Peters' Adm. Rep. 157.
The views of Lord Mansfield upon the particular topic under consideration, carry with them too great a weight to be passed over.
That renowned commercial jurist considered the law merchant as a branch of " public” law, because he considered, like Cicero, that it consisted of certain principles and usages of trade, which general convenience had estab. lished, in the traffic of merchants, in all the commercial countries of the civilized world. Kent, in treating upon the several divisions of the law of contract, has quoted liberally from the productions of foreign writers and the decisions of foreign tribunals, and in one portion of his commentaries offers the following remarks: "I am justified, not only by the example of the most eminent English lawyers and judges, but by the consideration that the law merchant is part of the European law of nations, and grounded upon principles of universal equity. It pervades everywhere the institutions of that vast combination of Christian nations, which constitutes one community for commercial purposes and social intercourse ; and the inter. change of principles, and spirit
, and literature which that intercourse produces, is now working wonderful improvements in the moral and political condition of the human race.”
Art. II.-OPENINGS FOR THE EXTENSION OF AMERICAN COMMERCE : EMBRACING BRIEF NOTICES OF THE PRESENT STATE, PRODUCTIONS, TRADE, COMMERCE, ETC.,
OF THE COMORO ISLANDS, ABYSSINIA, PERSIA, BURMAH, COCHIN CHINA, THE INDIAN ARCHIPELAGO, AND JAPAN.
MR. AARON H. PALMER, who has conducted, for the last fifteen years, an American and Foreign Agency, in the city of New York, recently addressed a letter to the Chairman of the Committee on Foreign Affairs in the House of Representatives, which furnishes some valuable information respecting the present state, productions, trade, commerce, &c., of the several countries named at the head of this paper. He also recommends that a special mission be sent by the government of the United States, to make treaties, and open and extend our commercial intercourse with those countries. In the letter referred to, Mr. Palmer states that the object of his agency has been "to make known in foreign countries the superior skill and ability of our mechanics, machinists, and manufacturers, in some of the most prominent branches of American industry, particularly in the construction of steam vessels and engines, and machinery generally." He has, also, with great labor, and at a heavy expense, issued and transmitted throughout the West India Islands, Mexico, Central America, South America, Egypt, Turkey, Greece, Russia, the maritime countries and islands of Asia, Africa, Australasia, and Oceanica, about one hundred and fifty thou. sand large circulars, relating to such business, in different languages. This course has been the means of eliciting orders for many articles of American industry, including a large order from the Pasha of Egypt, and for several steamers that have been constructed here on foreign account.
In 1838, Mr. Palmer went to Europe on business connected with hisi agency, and in 1839 he made an extensive tour through France, Belgium, Holland, Germany, Italy and Switzerland, under the immediate auspices of the Messrs. N. M. Rothschild & Sons, London, provided with their letters
of credit and introduction to the different branches of the house, and their correspondents in those kingdoms. During this tour, and an extensive correspondence thus created, and since continued, Mr. Palmer succeeded in acquiring much information respecting Asiatic affairs, and the productions, trade, commerce, &c., of many Eastern nations, much of which he has embodied in the letter addressed to the Chairman of the Committee on Foreign Affairs. As the letter of Mr. Palmer contains statements bearing upon the extension of our commerce with countries with which it is proposed to form treaties of Commerce and Navigation, we have concluded to embody the substance of the letter in a condensed form.
Comoro Islands. The principal islands are Comoro, Johanna, Mayotta and Mohilla, lying in the Mozambique Channel, of great fertility, inhabited by a friendly and hospitable race of Arabs, carrying on considerable traffic in vessels of 70 to 100 tons burden, with Madagascar, the East Coast of Africa, and Arabia ; are much frequented by English and American vessels for trade, and by our whalers for refreshments. The principal products of those countries, procured in that traffic, are ebony, various dyewoods, orchilla weed, drugs and gums, indigo, coffee, dates, pepper, spices, tobacco, hides, horns, gold, amber, ambergris, cowries, ivory, elephant and hippopotamus teeth, tortoise shell, wax, ostrich feathers, &c. : in ex. change for cotton and linen goods, woollen cloths, glass ware, ironmongery, lead, tin, small looking-glasses, beads, trinkets, gun-powder, muskets, pis. tols, &c.
Abyssinia. American manufactures have been for some time past in. troduced into Abyssinia by our trading vessels at Masuah, where the caravans arrive from the interior in February, and other ports on the Abyssi. nian coast of the Red Sea, and the ports of Tajourah, Zeila, and Berberah, of the Somaulie Arab tribes, on the Gulf of Aden.
The English have of late years turned their attention to the opening of commercial intercourse with Abyssinia. In 1841, a special embassy was sent for that purpose by the East India Company, to Ankóbar, about 370 miles from Tajourah, which succeeded in making a favorable commercial treaty with Sehalee Selasse, king of Shoa, one of the southern provinces. Among the exports of the country are gold, gold dust, ivěry, civet, ostrich feathers, peltries, hides, rhinoceros horns, wax, precious gums, spices, drugs, and coffee of choicest quality ; much of the best coffee shipped from Mocha, being the product of Abyssinia. The imports are chiefly salt, cotton goods, pewter, zinc, copper and brass wire, beads, small mirrors, trinkets, tobacco, snuff
, &c. A late scientific English traveller in that country states, that the Gondar cotton, indigenous to the elevated regions of Ethiopia, is of a fine long silky staple, of a quality equal, if not superior, to the American sea-island.
The agent of the British government in all transactions with the So. maulie tribes, is Allee Shurmalkee, a native trader of Berberah, honest, intelligent, and faithful in his dealings, in which he has accumulated a large fortune, and is styled by foreign traders, “the Arab Rothschild.”
Accurate information respecting the present state, productions, and commerce of Abyssinia, could readily be procured in the course of the mission proposed by Mr. Palmer, at Mocha, and official communications be ad. dressed thence, accompanied with some suitable presents to the kings of Tigré and Shoa, requesting that our countrymen be permitted to trade in their dominions upon the same footing with the English, or other most favored nations. The population of Abyssinia is estimated at 4,500,000.
Caravan Trade at Berberah. A great annual fair is held at Berberah, between September and March, where large caravans from the interior and unexplored regions of Africa, come to exchange their various and rich products for the manufactures and products both of eastern and western nations. American cotton goods are the principal articles given in exchange to the natives by the Indian Banyans of Bombay, Surat, and Cutch, who monopolize the trade at the fair. They are enabled to purchase those goods from American traders at Mocha, Masuah, and other ports on the Red Sea, cheaper than the English, which are almost entirely excluded from that market.*
Persia. The foreign trade of Bussorah and Bushire, on the Persian Gulf, is principally with British India, by which Persia is supplied with European manufactures, the products of China and the Indian Archipelago. Among the imports are cotton and woollen goods, lead, &c.; a considerable proportion of the cotton goods being of American manufacture. The ex. ports are chiefly dates, dried fruits, pearls, precious stones, cashmere shawls, carpets, raw silk, gall-nuts, yellow dye berries, otto of roses, and various drugs. The population of Persia is estimated at 11,300,000.
Burmah. Rangoon, the principal Burmese port, is situated on the river Irawaddy, about 26 miles from its mouth, accessible to vessels of any burden. Its imports of British and American manufactures are considerable, including cotton goods, woollens, glass-ware, &c.; and among its exports, are gold, silver, rubies, sapphires, noble serpentine, catechu, stic-lac, ele. phants' teeth, orpiment, beeswax, teak-wood, &c. The principal foreign vessels that visit the port, are English, American and Chinese. It has also a very active and extensive commerce with British India, Nicobar Islands, the Persian and Arabian Gulfs. The climate is temperate, agree. able and salubrious. The population of the Burman Empire is estimated at about ten millions.
Cochin China. The late Emperor Ming Ming was a great despot and tyrant. He refused to give audience to our Envoy, E. Roberts, Esq., in 1833, and signalized the latter years of his reign by many acts of cruelty towards the native Christian converts, and expelled the Catholic missionaries from the country. He died in January, 1841, and was succeeded by his son Thieufri, the reigning Emperor, a more liberal and enlightened sovereign, who received his investiture from the Emperor of China, 12th April, 1842, under the title of Yuen Fusiuen. Mr. Palmer has late advices that he had received with great favor, the letter and presents sent to him last year, by the Governor General of British India, and which appear to have wrought a favorable change in his bearing towards foreigners. This has been in part owing to the events of the Chinese war, and the increased intercourse between Cochin China and Singapore, where a number of Cochin Chinese youths, have been sent to be educated at the “ Singapore Institution,” for interpreters and navigators in his service. He has a number of large ships, built after European models, and several steamers, commanded and worked by native officers and engineers, for naval de.
This statement is derived from the January number of the United Service Journal," in which it is also stated that the American trade in cotton goods is rapidly superseding the English, in the ports of Muscat, Yemen, and the Arabian and Persian gulfs.