The laws of The laws of Such assenting testimony speaks much for the wisdom of the compilers of the Consolato, who, in a rude age, established regulations which no more recent discoveries have superseded; and its standing the proof of the experience of perhaps seven centuries, is almost conclusive as to the justice of its decisions, which could only have abided such a test from being coincident with the principles of natural equity, which are immutable. The laws of Oleron are, like the Consolato del Mare, of uncertain date. According to some writers, Queen Elinor (duchess of Guienne, and wife of Henry II. of England), when at Oleron, ordered these laws, which were called the Roll of Oleron, to be compiled. According to others, their compilation is due to Richard I., while others again say he only enlarged them. The language employed is old French, and the earliest copy known is, I believe, that bearing the date 1266, "the Tuesday after the feast of St. Andrews," and having the arms of Oleron (1). A similar uncertainty of date attaches to the laws of Wisbuy, which were probably of rather later origin than the laws of Oleron, as it was not till 1288, that the inhabitants of Wisbuy obtained leave to wall and fortify their city. Wisbuy was shortly after this period a town of first-rate maritime importance. Merchants from all parts of Europe resorted thither, and each nation had their separate quarter, with peculiar streets for their shops and warehouses; and all strangers enjoyed the same privileges as the native townsmen. Long after the destruction of the city, the ruins of Wisbuy attested its former greatness. Its laws were recognised not only in the Baltic, but throughout a (1) See the "Complete body of Sea Laws," &c., above quoted, where the laws of Oleron are inserted, pp. 120-173, [and Luder's Tracts. -ED.] great part of Europe; they bear a great resemblance to those of Oleron, so as to make it probable that they were partly copied from the latter, unless the likeness be owing to both codes resulting from one common original. (1) Towns. The laws of the Hanse-Towns bear a great re- The laws of semblance to the laws of Oleron and of Wisbuy. These the Hanselaws were made in public assembly, and were published in German in 1597. (2) Like the codes of Oleron and of Wisbuy, they have no provisions respecting prizelaw. These several codes are valuable in many of their provisions regarding shipping, such as salvage, and average, which have formed the basis of the laws on these subjects at present existing in Europe. But, if such provisions evince the wisdom of the compilers of these codes, not less do the regulations in other parts confess the barbarism of the times which rendered some of their enactments possible. Not to mention the use of torture permitted by the Rhodian laws, and the loss of the hand to which the laws of Wisbuy condemned the mariner who struck his captain, unless compensated by fine, the frequent and severe denunciations against wreckers shew how general, in those times, was a barbarity which has been the crime of a few in our own days. By Art. xxv. of the Laws of Oleron, it appears that pilots, undertaking to convey ships into harbour, were sometimes in league with the lords of territories which they passed, to cause the shipwreck of the vessel for the sake of the plunder which would ensue. By Art. xxvi. "if the lord of any place be so barbarous, as not only to permit such inhuman people, but also to maintain and assist them in such villanies, that he may have a share in such wrecks, the said lord shall be apprehended, and all his goods confiscated and sold, in (1) See for the Laws of Wisbuy, (2) Id. 194-206. id. 174-190. M. C middle ages. order to make restitution to such as of right it appertaineth; and himself to be fastened to a post or stake in the midst of his own mansion house, which being fired at the four corners, all shall be burnt together; the walls thereof shall be demolished, the stones pulled down, and the place converted into a market-place for the sale only of hogs and swine to all posterity." (1) A similar detail of punishment, obviously a vindictive return for cruelties actually practised, is found in Art. xxxi. "If a ship or other vessel happens to be lost by striking on some shore, and the mariners, thinking to save their lives, reach the shore in hope of help, and instead thereof it happen, as it often does, that in many places they meet with people more barbarous, cruel, and inhuman, than mad dogs, who to gain their monies, apparel, and other goods, do sometimes murder and destroy these poor distressed seamen; in this case the lord of that country ought to execute justice on such wretches, to punish them as well corporally as pecuniarily, to plunge them into the sea till they be half dead, and then to have them drawn forth out of the sea, and stoned to death." (2) Frequency of The numerous instances in which reprisals are menreprisals in the tioned in the diplomatic remains of the middle ages which have reached us, are again examples of the frequency of outrage and the difficulty of obtaining justice. A curious example occured in 1326. The admiral of James II., king of Arragon, seized a French ship and sold it; not with the slightest colour or pretext of justice, but with the express purpose that by the proceeds of the sale he might obtain funds for carrying on war. James II. wrote to Charles IV. of France, stating the fact, and requesting that reprisals might not be allowed against him, inasmuch as he had promised the owners of the vessel to re-imburse them in three years, as the exhausted state of his treasury prevented his doing so immediately. The king of France acceded to his request; and the correspondence conveys the impression, that a king, in those days, would gratify a brother king at the expense of his subjects, where his own interest and honour were not concerned, nearly as easily as a man, at the present day, permits another to shoot over his estate. (1) law of nations not to be expected in the middle ages. But the account that has been given of the rude manner Strict observin which what was acknowledged as a Law of Nations ance of the existed in the middle ages corresponds with what would have been expected from all that history has taught us of the semicivilized condition of society at that period : when knowledge was obscured in almost total darkness, and liberty, instead of being felt by nations, can barely be discovered in its germ by the antiquarian; when the best governments were despotisms mildly administered, and when law was gradually struggling into supremacy, not in the province of security against the governors but in that of justice among the governed. It is not to such a time that we must look for the development of principles dependent on considerations of abstract equity. But the middle ages have nevertheless a considerable influence upon the law of nations as recognised by civilised governments at the present day. For much of that law, like our common law, depends on practice constantly existing; and the middle ages originated precedents on various international questions which have been followed ever since, though often much varied and modified. Such customary law will be more fully considered in a future chapter, this being merely the place for remarking how little civilised were the times that have afforded us those precedents: and we shall have (1) See the Correspondence in Dumont, Corps. Dipl. I. 11. 95–97. The subject not immediately at tended to on the revival of letters. to notice several instances wherein the law which we are considering has been unfavourably affected, and involved in some inconsistencies, from being influenced by usages that had their origin in ages when justice between nations was so little appreciated or understood. On the fall of Constantinople, in 1453, there followed that remarkable æra so happy in the conjunction of admirable scholars with most liberal patrons, whose fostering care was needed by the circumstances of literature, but happiest in the newly discovered art which made the results of their labours of easy circulation and attainment. It is an æra well characterised in the usual phrase of the "revival of letters," for it is more remarkable for the resuscitation of the great minds of antiquity, than for original works produced by the authors who then existed, though some of these were eminent. This direction of mental energy was fortunate for Europe, whose men of genius, instead of having to rediscover what had before been known, found a fullgrown literature awaiting their attention: but it was unfortunate for the science which we are now considering, as no works by ancient authors treat of the Law of Nations, which therefore remained unnoticed amidst the general bursting forth of knowledge on almost every topic of inquiry. And, besides this, Italy, the focus of the light which was spreading over Europe, was from its political condition unapt for the study of such a science; nor can we fancy tendencies, congenial to the reception of considerations of abstract equity, to be common among rulers for whom Machiavel's Prince* [* It is, perhaps, scarcely worth while on the occasion of a mere allusion to this celebrated work to re-open the controversy as to its true political and moral complexion. It must be studied in reference to the character and biographical antecedents of the writer, the political circumstances of the time and place, and the literary taste of the epoch. It is prejudging the results of such an investigation to intimate that the work was " proposed as a guide in political action." See Hallam's "Literature of Europe," vol. i. chap. vii.-ED.] |