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or litigation; and, by increasing the debtor's liabilities, it might cripple his means of payment, and lead him into temptation to commit fraud.
The rate of interest upon these maritime loans was not restricted by law; nor were commercial enterprises greatly harassed by legislative interference. Protective duties were unknown at Athens. A duty of two per cent., imposed for the sake of the revenue, was levied upon all exports and imports; and no trade was altogether prohibited, except with those people, who were either at war, or in a state of permanent enmity, with the Athenians. The few restrictive regulations, by which Athenian commerce was fettered, were with a view to secure to the country a supply of the principal necessaries of life, especially corn.
The population of Attica, including both freemen and slaves, was not less than half a million. Of the corn necessary for their consumption two-thirds only were supplied by Attica itself; the rest was brought from foreign countries, chiefly from the coast of the Euxine, the Crimea, the Thracian Chersonese, Syria, Egypt, Sicily, Euboea. Every precaution was taken both by the government and the legislature to secure an abundant supply; and among other measures which they adopted were the following. The exportation of corn from Attica was entirely prohibited by law. No man resident in Athens was allowed to convey corn to any other port than the Athenian, as we have already seen, (ante, p. 181.) And two-thirds of the corn imported was to be brought into the city of Athens and sold there. With respect to the laws against engrossing and regrating and the frauds and tricks of the corn-dealers, I shall content myself with referring to article Eros in the Archæological Dictionary, and to the copious discussion of Böckh. I must however draw the reader's attention here to the commercial law cited in the speech against Lacritus, (ante, p. 200;) in which there is a difficulty (as I have already noticed) in construing one of the clauses, and of which the general meaning is by no means free from obscurity. The words of the original are-
ἀργύριον δὲ μὴ ἐξεῖναι ἐκδοῦναι ̓Αθηναίων καὶ τῶν μετοίκων τῶν ̓Αθήνῃσι μετοικούντων μηδενὶ, μηδὲ ὧν οὗτοι κύριοί εἰσιν, εἰς ναῦν ἥτις ἂν μὴ μέλλῃ ἄξειν σῖτον ̓Αθήναζε, καὶ τἄλλα τὰ γεγραμμένα περὶ ἑκάστου αὐτῶν. ἐὰν δέ τις ἐκδῷ παρὰ ταῦτ ̓, εἶναι τὴν φάσιν καὶ τὴν ἀπογραφὴν τοῦ ἀργυρίου πρὸς τοὺς ἐπιμελητὰς, καθὰ περὶ τῆς νεὼς καὶ τοῦ σίτου εἴρηται, κατὰ ταῦτα, καὶ δίκη αὐτῷ μὴ ἔστω περὶ τοῦ ἀργυρίου, ὃ ἂν ἐκδῷ ἄλλοσέ ποι ἢ ̓Αθήναζε· μηδὲ ἀρχὴ εἰσαγέτω περὶ τούτων μηδεμία.
Böckh's interpretation of this passage is, that no one was allowed to lend money on a vessel which did not return to Athens with a cargo of corn or other commodities. He refutes the opinion of Salmasius, that the law related to the corn trade only, and so far we must agree with him; for the words καὶ τἄλλα τὰ γεγραμμένα περὶ
ÉKάσTOV AVTOV, however we interpret them, clearly indicate some other merchantable articles besides corn, as being enumerated either in the law itself, or in the agreement of loan; and further, it appears even from the case of Lacritus, that it was not necessary for every ship to bring corn, as part of its return cargo, to Athens. But, says Böckh, it was required by law, to make a loan on the voyage legal, that the ship should bring either corn or some other commodity to Athens. It appears to me, (with all due deference to so high an authority,) that there are difficulties in the way of this explanation.
Böckh concedes, as he was obliged to do, that a loan on the voyage out was legal; but, to reconcile this with his interpretation of the law, he contends that such a loan was not legal, unless the ship was to return to Athens with such a cargo as the law required. Was it necessary then, that in every agreement for a loan on the voyage out a stipulation should be inserted, binding the merchant to bring back the requisite cargo to Athens? Supposing this to be so, what security would it be to the Athenian state? If the lender was to be absolved from all penal consequences, merely by inserting such a clause, it would always be inserted, and it would have no effect whatever. On the other hand, if the lender was bound to go further, and to be answerable for the bona fides, or for the acts, of the merchant and the shipowner, it would have been a terrible hardship on him; for why should he be implicated in their proceedings, after the discharge of the outward cargo on which he had lent his money? If this had been the case, it would never indeed have been safe to lend money on the voyage out. Yet we know for certain, that it was a common practice to do so.
Again the law does not specify what amount of corn or other commodities were to be brought to Athens. How large a cargo then would have satisfied the law? If the smallest possible would have been sufficient, then the statute would easily have been evaded; if a substantial cargo was required, such a construction of the statute would have led to oppression and injustice; for how could it be determined what was a substantial cargo? The question, whether there had been a breach of law, must have depended on the state of the foreign market, the fortune of the voyage, and many other chances. Such are the absurdities in which this theory of the matter appears to involve us. If the law had simply provided, that no man should lend on a ship which was not to return to Athens, it would at least have been intelligible; but this does not agree with the words.
I may add, that the supposed regulation would have been by no means conducive to what the Athenians desired to accomplish, viz. to secure a plentiful importation of corn and other provisions. For example, there is a trade in corn from Syracuse to Athens. If, after the arrival of a Syracusan corn-ship at Athens, an Athenian was prevented from lending on the voyage back to Syracuse, the importation
of corn to Athens would have been discouraged. A voyage from Athens to Syracuse and back was perfectly legitimate; that is conceded. Nor was there any objection to lending on a voyage from Syracuse to Athens, as appears from the speech against Dionysodorus, (p. 1286.) Why then should there be a prohibition against lending on a voyage to Syracuse?
Now let us consider the latter words of the statute-kaì díkŋ αὐτῷ μὴ ἔστω περὶ τοῦ ἀργυρίου, ὃ ἂν ἐκδῷ ἄλλοσέ ποι ἢ ̓Αθήναζε. These words, standing alone, would seem to prohibit the lending on a voyage out, which we know cannot be their meaning. They do not imply any command to bring a cargo to Athens; they are simply prohibitory. But it is clear that they are to be taken in connexion with the previous clauses of the statute; and this leads perhaps to a solution of the difficulty. The substance of what the statute enacted may be as follows-"No man shall lend money for the carriage of corn elsewhere than to Athens, nor for the carriage of any return cargo elsewhere than to Athens; if he does, he shall be liable to a Phasis, &c., and he shall have no action to recover his money." The words in Italics contain the substance of what was omitted by the orator, and in lieu of which are inserted the hopelessly obscure words_kaì rädda &c. How then do I understand the law? How do I make it reconcileable with the admitted legality of loans on the voyage out? This is already indicated by the above paraphrase of the law, but I will make it yet plainer. It was not lawful to lend money on a cargo shipped in a foreign port on return, unless that cargo was to be carried to Athens. For example-it was lawful to lend on a voyage from Athens to Bosporus: it was lawful also to lend on a return cargo to be brought from Bosporus to Athens but it was not lawful to lend on a return cargo to be shipped in Bosporus and carried to Chios. This we know from the speech against Lacritus; and it agrees with what the speaker says in the case of Dionysodorus. The plaintiffs there lent money to the defendants on a voyage from Athens to Egypt and back. They had been requested to lend on the voyage to Egypt, and thence to Rhodes or Athens; but this they had refused, apparently because it was illegal. The borrowers violated their contract, carried a cargo of corn from Egypt to Rhodes, and did not bring the ship back to Athens, as they were bound to do under a penalty; for which an action was brought in the Athenian court.
This view of the matter is confirmed by what is said in the speech against Zenothemis about the mercantile actions, (ante, p. 151, orig. 882 ;οἱ νόμοι κελεύουσι τὰς δίκας εἶναι τοῖς ναυκλήροις καὶ τοῖς ἐμπόροις τῶν Αθήναζε καὶ τῶν Αθήνηθεν συμβολαίων—which I take to be the same in substance with what is said in the speech against Phormio, (ante, 172, 183, orig. 908, 919.) Loans were good, on voyages direct from Athens; but a loan on goods from Egypt to Rhodes was not direct from Athens.
And there was a reason for the law as thus explained. For the lending on a return cargo from one foreign port to another, besides that it tended to diminish the importation of necessary commodities to Athens, brought no customs duty to the state. On goods carried from Athens to Egypt there was an export duty; on goods from Egypt to Athens there was an import duty; on goods from Egypt to Rhodes there was neither.
I now proceed to examine more in detail the terms of these maritime loans.
In the cases of Zenothemis, Phormio, and Dionysodorus, tae principal features of the agreements may be gathered from a perusal of the speeches. In the case of Lacritus we have an agreement set out in full; and this therefore will afford the best example for illustration.
It occurs in page 189 of this translation. The clauses which I have here particularly to notice are— e-I. Those prescribing the course. of navigation and rate of interest: II. Those relating to the security: III. Those which allow a deduction from the payment in certain IV. Those which provide for the event of the ship or cargo
I. The voyage is to be from Mende or Scione, and thence to the Thracian Bosporus, with liberty to sail on the left coast of the Euxine as far as the mouth of the Borysthenes. The merchants are to pay interest of twenty-two and a half per cent. on the loan, unless in the event of their returning from the Euxine to Hierum in Bithynia after the rise of Arcturus in September, when the dangers of navigation commenced; then, in consequence of the increased risk, they were to pay thirty per cent. In the event of their not entering the Euxine, in order to escape the tempests of the dogdays, they were to remain in the Hellespont, at the end of July, ten days after the early rise of the dog-star, paying in that case the lower rate of interest. And none of the goods are to be unladed in any port where the Athenians are in a state of hostility with the natives.
Here we have a particular route prescribed for the voyage, with liberty to vary it to some extent, subject to the payment of a higher premium in case the peril is increased. There is a prohibition, as we might expect, against unlading in an enemy's country. No penalty is expressly imposed for a violation of these terms; but we may fairly presume that an infringement of them would be attended with legal consequences, such as an action for any damage sustained by the breach of contract, or forfeiture of the benefit, which the saving clauses gave to the merchant in case of a loss. It is impossible to speak with certainty upon such a question, as we have so few cases handed down to us, and we cannot sustain every point of law which suggests itself by reference to a precedent. The analogies of modern law will be found most useful to explain and illustrate a subject of
this nature; there being a great similarity between the commercial laws of all nations.
In these days, when the place of destination is fixed by the charterparty, it is the duty of the master to proceed to it without delay, and without stopping at any intermediate port, or deviating from the straight and shortest course, unless such stopping or deviation be necessary to repair the ship from the effects of accident or tempest, or to avoid enemies or pirates, or unless the ship sails to the places resorted to in long voyages for a supply of water or provisions by common and established usage.
A deviation, without necessity or reasonable cause, from the regular and usual course of the voyage, has an important effect upon contracts of insurance. It is necessary to insert in every policy of insurance the place of the ship's departure, and also of her destination. Hence it is an implied condition to be performed on the part of the insured, that the ship shall pursue the most direct course, of which the nature of things will permit, to arrive at the destined port. If this be not done; if there be no special agreement to allow the ship to go to certain places out of the usual track, or if there be no just cause assigned for such a deviation, the underwriter (or insurer) is no longer bound by his contract, the insured having failed to comply with the terms on which the policy was made. For, if the voyage be changed after the departure of the ship, it becomes a different voyage, and not that, against which the insurer has undertaken to indemnify: the risk may be ten times greater, which probably the insurer would not have run at all, or, at least, would not have run without a larger premium. Nor is it material, whether the loss be or be not an actual consequence of the deviation; for the insurers are in no case answerable for a subsequent loss, in whatever place it happen, or to whatever cause it may be attributed. Neither does it make any difference, whether the insured was, or was not, consenting to the deviation.
These are principles, founded upon the exigencies of commerce, which have been fully established in our English courts.
II. As to the security. The money is stated in the agreement to have been lent on the security of 3,000 casks of Mendean wine. The expression is remarkable, because the wine was not to be put on board until the ship had arrived at Mende or Scione, and was afterwards to be sold in the Thracian Bosporus or the Euxine, and a return cargo purchased with the proceeds. If the lenders had any control over the wine by means of an agent of their own, it would have been a security in the stricter sense of the term; otherwise, it could be a security no further than this, that it formed a part of the contract that the borrowers should ship the cargo of wine; and, if they did so, it afforded them the means of procuring the return cargo, which constituted the effectual security of the lenders, if it was brought home safe; for then, by the terms of the agreement, it was to be