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THE FIRST EDITION.
CONSIDERING the great importance of every branch of law relating to Maritime Commerce, it is a matter of surprise that no Treatise on the subjects discussed in the following sheets should have been written by any member of the profession of the law for a very long period of years. It is now more than a century since the first publication of the work of Molloy, the only English Lawyer who has written on these matters. During that period the law of the country has grown up with its commerce; many interesting points have been argued by able and eloquent Advocates, and decided by learned and enlightened Judges; and some very important regulations have been introduced by the Legislature: but very little of useful addition has been made to the collection of Molloy, either by the subsequent editors of his Treatise, or by the other authors who have written on the same topics. Yet the absence of a general and established code of Maritime Law, which almost every other European nation possesses, seems to render a collection of the principal points of that law peculiarly necessary, both for English merchants and English lawyers. On the subject of Insurance, this has been already effected. In the present Treatise an attempt is made to supply the defect in some other branches. And in order to render the work as generally useful as the nature of it will allow, great care has been taken to avoid the use of
technical phrases, wherever the form and manner of legal proceedings are not the principal points of consideration. The reader, who is of the profession of the law, may, I fear, sometimes be disgusted at this; and at other times censure the awkward expressions substituted for the language to which his ear is familiar. The only excuse that can be offered for the latter fault, is the difficulty of expressing ideas to which the mind is habituated, in any other words than those to which we are accustomed : a difficulty, of which the conversation of all persons who are engaged in any art or science furnishes daily experience.
The Treatise now offered to the public is compiled, not only from the text-writers of our own Nation, and the reporters of the decisions of our own Courts, but also from the books of the Civil Law, and from such of the maritime laws of foreign nations, and the works of foreign writers, as I have been able to obtain a knowledge of. A few decisions of the House of Lords are quoted from the printed statements delivered by the contending parties and the Journals of the House. Some judgments pronounced by English Judges are also introduced, which have not hitherto been made public; for the most valuable part of these I am indebted to Mr. Justice Lawrence, and particularly for the cases of Parish and Crawford, Appleby and Pollock, and Day and Searle : the case of Mackrell against Simond and Hankey was communicated to me by the late Mr. Justice Buller, who, when at the Bar, argued it on behalf of the defendants : the rest are cited from notes taken by myself or my professional friends. Indeed, I am indebted to my friends not only for assistance of this kind, but also for the loan of scarce books, the correction of some errors, and the suggestion of many valuable hints for the improvement of the work. Of the assistance thus afforded me I shall ever entertain the most grateful remembrance, and my reader will experience the advantage in many parts of this book.
The Ordinances most frequently quoted are those of Oleron and Wisbuy, the two Ordinances of the Hanse-Towns, and the Ordonnance de la Marine du Mois d'Aoust, 1681. The Ordinances of Oleron and Wisbuy and the first Hanseatic Ordinance are in the hands of every lawyer; and whenever the Hanseatic Ordinance is mentioned generally, the reader will understand this to be spoken of. The Hanseatic Ordinance of the year 1614 was published with a Latin translation and commentary by Kuricke in a small quarto, at Hamburgh, in the year 1677. This book is very scarce in this country : the Ordinance itself is arranged and divided, and contains some additional regulations, which however are little more than a detail of the principles comprised in the first Ordinance. Reference is also occasionally made to such other foreign Ordinances as are to be found in the second volume of Magens's Essay on Insurances. I have often lamented my inability to consult the earliest maritime code of modern Europe, the Consolato del Mare. There is an old French translation of this body of laws, but I could never meet with it, and I am ignorant of the Spanish and Italian languages. Whenever, therefore, I have referred to this code, the reference is taken from the work of some other author; and it is made for the purpose of giving an opportunity of consulting the original to those whose superior attainments enable them so to do. The Ordinance of Louis the Fourteenth is quoted from the edition published, with a most learned and valuable commentary by Valin, in two volumes quarto, at Rochelle, in the year 1766, and is cited by the name of the French Ordinance. An English translation of the whole of this Ordinance is contained in a book called “A general Treatise of the Dominion of the Sea, and a complete Body of Sea Laws,” published in quarto, in the early part of the last century. The translation is divided into sections, and not like the French of Valin, into books and titles; but the subjects and articles of the sections in the English are the same as those of the
titles in the French; and as the latter are always cited in the notes to this Treatise, recourse may be had to the English translation with very little difficulty. If the reader should be offended at the frequent references to this Ordinance, I must request him to recollect that those references are made to the maritime code of a great commercial nation, which has attributed much of its national prosperity to that code; a code composed in the reign of a politic prince, under the auspices of a wise and enlightened minister, by laborious and learned persons, who selected the most valuable principles of all the maritime laws then existing; and which, in matter, method, and style, is one of the most finished acts of legislation that ever was promulgated.*
The writings of some foreign authors are also occasionally cited, particularly the Notabilia of Roccus, and the treatises of Pothier and Emerigon. The Notabilia of Roccus are an abstract of the most useful points contained in the works of earlier authors, and in the Digest and Code of Justinian. Where this author is cited generally, the reference is to the Notabilia de Navibus et Naulo. The treatises of Pothier are remarkable for the accuracy of the principles contained in them, the perspicuity of their arrangement, and the elegance of their style. The treatise of Emerigon is peculiarly valuable for its extent of learned research, and the numerous and apt citations of the texts of the Civil Laws, and of the Maritime Ordinances, the opinions of former writers, and the adjudications of the Courts of Justice of his own country, which are to be found in every part of it.
It should be observed, however, not only of all these treatises, but also of the Civil Law, and the Ordinances, without excepting even the Ordinance of Oleron (which being considered as the edict of an English Prince, has been received with peculiar attention in the Court of Admiralty), that they
* The esteem in which this Ordinance has been held in France is abundantly shown by the little alteration that is made in the Code de Commerce of the year 1807.