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tions upon two several stones of this kind. One, which was found at Acharnæ, denotes that the mortgage was given in the Archonship of Theophrastus for the unpaid purchase-money of land sold by Phanostratus of Pæania. The other, found at Marathon, which is imperfect, states that a house and land had been given to secure the orphan son of Diogiton of Probalinthus. Meier mentions an unpublished inscription, of a lease for forty years given by the townsmen of Aixone to one Autocles, in which the lessors stipulate that, in case the rent is in arrear, the produce of the land shall be mortgaged to them, and they shall be at liberty to put up stones, two on each side of the land, not less than three feet high.3
That these stones or tablets were a very ancient usage at Athens, may be learned from Plutarch, who informs us that, when Solon established his famous disburthening ordinance, 4 he removed the opol which were set up in all parts of the country on the lands of the small proprietors, as the evidences of their obligations to the more wealthy class. It is plain that they were adapted to a rude age, when writing materials were scarce, and transfers of land were accompanied by delivery of possession, or something of the sort, to make them notorious. They could be of little use however, except in a small community, where the creditor might constantly have them before his eye. Without such opportunity of inspection, there would be nothing to prevent a fraudulent debtor from removing them, and mortgaging his land over again. One may be a little surprised at Reiske's note—“Mos hic apud nos quoque si obtineret, quem optandum erat obtinere, quam multos ejusmodi opous esset videre !” *One would have thought Reiske might have learned from Demosthenes, that pillars are as easily removed as they are put up. It is still more strange however to find Blackstone expressing himself in the same strain, and lamenting that we cannot return to the old times when land was transferred to the mortgagee in the presence
the neighbours : he writes thus, (Commentaries, II. page 159 :)
“ In Glanvil's time, when the universal method of conveyance was by livery of seisin or corporal tradition of the lands, no gage or pledge of lands was good unless possession was also delivered to the creditor :: si non sequatur ipsius vadii traditio, curia domini regis hujusmodi privatas conventiones tueri non solet:' for which the reason given is, to prevent subsequent and fraudulent pledges of the land :
(1) Επί θεοφράστου άρχοντος όρος χωρίου τίμης ενοφειλομένης Φανοστράτω Παιανιεί δισχιλίων δραχμών.
(2) όρος χωρίου και οικίας αποτίμημα παιδί ορφανη Διογείτονος Προβαλισίου.
(3) όρους επί τω χωρίς μή έλαττον ή τρίποδας εκατέρωθεν δύο. (Meier and Schmann, Att. Proc. 506. 530.)
(4) cercáxdela. The exact nature of this measure is uncertain. It was probably an arrangement for a reduction of the debts of the poorer class, not a total ābolition of them, as some have supposed. Whether this was effected by a direct cancelling of a portion of the debt, or by a depreciation of the currency, has been a matter of dispute. See Plutarch, Vit. Sólon. 15.
cum in tali casu possit eadem res pluribus aliis creditoribus tum prius tum posterius invadiari.' And the frauds which have arisen since the exchange of these public and notorious conveyances for more private and secret bargains have well evinced the wisdom of our ancient law." Things are
much changed since the time of Glanvil, who wrote in the reign of Henry II. I need hardly say, that livery of seisin and corporal tradition would not be notorious at the present day. A man's neighbours make but a small part of the world he lives in, and they do not pay much attention to his transfers or his mortgages. Assuredly we shall never go back to livery of seisin, or notices upon the land, or any contrivance of that sort. In our country title deeds are the evidence of property in land, and no cautious creditor will accept a mortgage, unless all the title deeds in the mortgagor's possession are delivered to him. That difficulties frequently occur in the investigation of the title to real property, and that frauds are occasionally committed, we all know; to prevent which it has often been proposed, and many attempts have been made, to establish a public register of title. But this is a subject fraught with difficulty, and upon which there is a great difference of opinion. Here I can do no more than glance at it.
The name of pou was probably given to these stones, because they were fixed on the boundaries, and thus denoted the extent of land which was subject to the mortgage. It once occurred to me, that the term might be used to designate the interests of the parties concerned, in the same way as we use the words limit and limitation in our law. For example we say an estate limited to A B for life, with remainder to his son in fee.” But there is no authority for such a supposition with respect to the Attic term; and it is altogether more probable that it had reference to a terminal boundary.
The importance of foreign commerce to the Athenians rendered it necessary for them to enact various laws for its regulation, and for the protection of those engaged in it. Of the numerous commodities which they imported—as corn, wine, salt-fish, hides, leather, wool, timber, wax, tar, linen, carpets, gold, copper, iron, slaves, &c.—some were necessary to their existence, or at least to their prosperity, others were articles of luxury and comfort, which habit bad rendered almost indispensable. These they were enabled to procure, directly or indirectly, in exchange for the native produce or manufactures of their own country, namely, oil, honey, olives, figs, marble, silver, lead, works of art in wood and metal, articles of furniture and dress, armour, hardware, earthenware, jewellery, &c.
It was by means of individual enterprise, as now, that this commerce was carried on. It was both just and politic, that the capitalists and other people who embarked in it should be encouraged, their rights secured, their contracts duly enforced. That such was the policy of the Athenian law, we are frequently informed by Demosthenes. I may instance in particular what he says at the close of the speech against Phormio, (ante, 184, 185;) from which we learn that frauds practised upon those who lent money, on mercantile adventures might be punished with the utmost severity. The establishment of special tribunals for the speedy trial of mercantile causes was, as I have shown, that merchants might not be impeded in their business by legal delays. (See the Argument to the speech against Zenothemis, ante, 150.)
The manner in which maritime commerce was carried on by the ancient Athenians differed from that of modern times in some important respects.
With us, a trading ship is employed in two different ways. In the one case—the ship, or the principal part thereof, is let by the owners for some particular voyage; this is usually done by an agreement under seal, called a charter-party, and the ship is said to be chartered. In the other case—the owners of a ship destined to make a particular voyage engage with various persons, unconnected with each other, to convey their respective goods to the place of destination ; a ship thus employed is called a general ship. The owners rarely navigate the ship themselves, but leave the management of it to the master, by whose lawful contracts during the time of his employment they are held to be bound. When the goods are put on board, the master gives an acknowledgment called a bill of lading, by which he undertakes to deliver them to the party therein named or to his assignee. A duplicate of this, signed by the master, is sent by the shipper to his consignee abroad; to whom, on its production, the goods are to be delivered. The merchant himself rarely goes on the voyage, thongh sometimes he sends out a supercargo to protect bis interests.
Such are the general features of a trading voyage in modern times. The character of the whole business however is much altered by the practice of insurance, which was unknown to the ancients."
(1) “In the middle ages”-says Park, in his treatise on marine insurance “almost all the commerce of Europe centred amongst the Italians. As they at that time carried on and established a regular trade with the East in the ports of Egypt, and drew from thence all the rich produce of India; it is reasonable to suppose, that in order to support so extensive a commerce, these industrious and ingenious people were the first who introduced insurances into the system of mercantile affairs. It is true, there is no direct authority to warrant a positive assertion, that they were the inventors of this kind of contract: but it is certain, that tho knowledge of it came with them into the different maritime states, in which parties
At Athens the system was different. There were usually the following parties to a trading voyage: -1. The shipowner; 2. The merchant adventurers ; 3. The capitalists, who lent" money to those respective parties on the security of the ship, freight, and goods. The owner of the ship was often obliged to borrow money for his outfit and navigation; for this he mortgaged the ship and freight. The merchant adventurer was usually a person who had little or no capital, who purchased the outward cargo with borrowed money, went out with it to sea, sold it at the place of destination, and then procured a return cargo which he brought home. The capitalist, who supplied the fund for this, was commonly a banker, or some person acquainted with the nature of the trade, who found it advantageous to employ a portion of his spare money in this way, on account of the high rate of the profit which it yielded.
Such appears to have been the ordinary course of things. But that this was sometimes varied—and that the relations of the parties did not always stand exactly on the same footing-we may readily imagine. For example—the shipowner might carry merchandise on his own account; or the merchant might trade with his own money, either wholly or in part.
Let me illustrate what I have said by reference to the cases in this present volume. First take that of Zenothemis. We have Hegestratus, the shipowner, who is alleged to have borrowed money on a pretended security of goods; the ship and freight having probably been pledged before. Zenothemis and Protus are merchant adventurers, trading with borrowed money, and going out on the voyage. Demon and his partners and the Syracusan creditors are the capitalists who find the funds for these persons.
In the case of Apaturius, the defendant tells us, that for a considerable time he was engaged in foreign commerce and used himself to make voyages; that, having saved some money, he gave up going to sea, but lent his capital to other merchants. Here we have the merchant adventurer, who had been successful in trade, retiring from the personal risk and toil of a seafaring life, and becoming a moneslender only. Compare what Nicobulus says of himself, (ante, 241, 242.) of them settled : and when it is admitted that they were the carriers, manufacturers, and bankers of Europe, it is probable that they also led the way to the establishment of a contract, which is so essentially necessary to the support and cultivation of
It has however been asserted by the writers of the French nation, that insurance dates its origin in the year 1182, and that it was introduced by the Jews, who were banished from France about that period, and who took that method to facilitate and secure the removal of their effects. They proceed to say, that the Lombards, who were not idle spectators of this contrivance, adopted it, and in a short time improved it considerably. It is not very necessary to inquire into the truth of this fact, nor indeed are there materials to enable us to do so: but it is observable that the President Montesquieu mentions that the Jews upon this occasion invented bills of exchange, but does not say a syllable of policies of insurance. It is agreed, liowever, that, if the Lombards were not the inventors, they were at least the first who brought the contract of insurance to perfection, and introduced it
to the world.”
The premium upon money lent on a maritime adventure was necessarily high, on account of the risk run by the lender. There was, in the first place, the hazard of losses by sea, including shipwreck and damage by tempest, capture or detention by enemies or pirates, &c. &c.; and the rule was, that the lender was not entitled to payment, if the ship or cargo was lost. In addition to this, the personal credit of the merchants, especially if they were foreigners, was very low; and the security which they offered could not be much relied upon, for it was, from necessity, in great measure withdrawn from the control of the lenders. (See the observations in the plaintiff's opening of the speech against Dionysodorus.)
Even when the ship was mortgaged, if the owner went out with it, there could be no certainty that he would return; and international law afforded but little protection in those days. The cargo was a still more precarious security, for it was exposed to more casualties. There were two ways of lending; either on the voyage out, or on the voyage out and home. In the former case, the loan was repayable on the ship's reaching its outward place of destination, and the creditor bad an agent on board, or in the foreign port, to receive it. In the latter case, the creditor was entitled to receive payment upon a safe return to the port where he had lent his money.
A loan upon the voyage out was evidently attended with less hazard. The lender took care that the goods which constituted his security were duly shipped. On their arrival at the port of destination, his agent was entitled to hold or have control over them till they were sold, and then to receive what was due to him out of the proceeds.
Upon a loan on the voyage out and home, the creditor had likewise to see that the outward cargo of goods was put on board'; for, though he had no control over them, it was by their sale in the foreign port that the merchant was enabled to purchase the return cargo, which, upon its safe arrival home, formed the real security of the creditor; for then he was entitled to the possession of it, until his principal and interest were repaid. This risk was augmented, not only by the double sea-voyage, but by the larger credit and greater power given to the merchant; consequently he demanded a higher rate of interest. Chrysippus, we have seen, was to receive from Phormio upon such a loan thirty per cent. (ante, 170). Androcles and Nausicrates were to have in one event twenty-two and a half per cent., and in another thirty per cent. (ante, 185). But this was virtually interest on the half-year.
In every case it seems to have been stipulated, that the merchant should not give a second mortgage on the same goods. If he did, it was considered a fraud upon the first as well as the second mortgagee; and indeed with good reason. For, though we may presume that the first mortgagee would have priority, yet the repledging of his security might very possibly involve bim in trouble