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The precise dates and the manner of confection of these codes remain in doubt. The Consulate of the Sea, as was called the most important of these codes, appeared in the Catalan language in Barcelona probably in the XIIIth century and not later than the second half of the XIVth. As to its author, different historians have surmised that it was ordered by the King of Aragon," or that it was the work of several jurists,” or that it was the product of one mind.” Of the 334 articles which composed it, 252 relate to substantive maritime law and the remainder are provisions of public law and procedure. The Consulate of the Sea was accepted as the common law of the whole Mediterranean and received early translations into Spanish, Italian, French, Dutch, and German. The Rolls or Judgments of Oleron were law on the Atlantic coast. They are not supposed to be earlier than the XIIth century nor latter than 1263, the date of the Siete Partidas of Alfonso X, of Spain, which seems to make mention of them.” They were written in French and from their name are believed to have originated on the island of Oleron, which lies off the west coast of France, between La Rochelle and the mouth of the Gironde. The word rolls meant a parchment record of a judgment of a Court. It is therefore believed that the code was simply a collection of precedents, made by an unknown hand. They were accepted as law in England, Aquitania, Brittany, and Normandy, and are important as a source of French maritime law. No logical order appears in the 25 original articles nor in the 55 which are published in the later editions.” Two important Dutch translations of the Judgments of Oleron were known as the Judgments of Dam and the Laws of Westchapel. The third of the codes was called the Laws of Wisby.” and was probably compiled towards the end of the XVth century at Wisby on the island of Gothland, in the Baltic Sea. It is doubtful what original authority the code had beyond general acceptance by the merchants. It contained little new material, the 72 articles being compiled from the Statutes of Lubeck, the Judgments of Oleron and the ‘Maritime Uses of the Northern Low Countries, which in their turn were virtual translations of the Judgments of Oleron. The Laws of Wisby were of great importance in the Scandinavian countries and the Hanseatie League. They were first published in German, but passed through numerous editions and translations.
* Emerigon, Traite des assurances, p. VI. * Manzano, Ob. cit. Vol. I, p. 240. * Pardessus, Us et coutumes de la mer, Vol. II, p. 19: for the text of the Code p. 361 to 368. "Manzano, Ob. cit. Vol. I, p. 246: Pardessus, Ob. cit. Vol. I, p. 301, dates them anterior to 1152 when by the marriage of Eleanor of Guienne to Henry II of Fngland. Aquitaine passed to Fngland. #"; go' see the same author, Lyon-Caen et Renault, Ob. cit. Vol. - 4. "Id. p. 252. Of the later editions, eight articles are supposed to be of English origin. The first known manuscript editions are those of Oxford and of London. - * Pardessus, Ob. cit. Vol. I, pp. 443-444: Manzano, Ob. cit., Vol. I. p. 254; Lyon-Caen, Ob. cit. Vol. I, p. 24.
In Spain, during the middle ages, we have already seen that special influences were at work making her political and industrial history markedly different from the rest of Europe. The Consulate of the Sea was the most important body of codified law belonging to the middle ages; an edict of Barcelona of 1394 contains the first mention of bills of exchange in Spain; an ordinance of the same city in 1435 mentions bottomry and in the same year the first mention is made of insurance, neither subject having been regulated in the Consulate of the Sea; in 1226, King James I, of Aragon, granted privileges to the city of Barcelona regarding the naming and the functions of the consular Judges; in 1283, Peter III established the consular jurisdiction in Valencia; from 1336 to 1348 was regulated the procedure to be followed in the consular Courts of Barcelona, Valencia, Palma de Mallorca and Perpignan.”
. In the interior the fueros had reached extravagant in. portance and with the termination of the reconquest and the political unification of the Peninsula efforts were made by the sovereigns to unify the law. King Alfonso X, of Castille (1252-1284), issued two codes: (1) the Fuero real.” reflecting closely the national law, and (2) the more famous Siete Partidas,” which borrowed generously from foreign and Roman law. From the point of view of commercial law, the latter code is the more important.
In the northwest the Rolls of Oleron were in force and in 1459, appeared the first of the Ordenanzas de Bilbao in which brokerage is minutely regulated.”
* Manzano, Ob. cit, Vol. I, p. 276, * Codigos Espanoles, Vol. I, p. 349. * Id., Vol. 2. * Manzano, Ob. cit., Vol. I, p. 281.
SUMMARY OF COMMERCIAL LAW IN THE MIDDLE AGES.
“The Law Merchant was a body of rules and principles relating to merchants and mercantile transactions, distinct from the ordinary law of the land. Possessed of a certain uniformity in its essential features, it yet differed on minor points from place to place.” "
Its principal characteristics were that it was customary, summary, equitable and international.
The customs of the commercial classes, preserved in the statutes of the corporations of merchants and of the municipalities, had authority over very limited territories and were so numerous as to be confusing. The great maritime codes brought some order out of the chaos in their particular field, though their authority was probably simply public acceptance. The hostile occupation of the African and Asiatic shores of the Mediterranean by the Arabs obstructed the route to India and, with the advent of the compass, led to the discovery of the ocean route to India and a new hemisphere and the decline of Italian and German commerce. In the period to the French Revolution commercial supremacy passed to new nations more favourably situated to carry on a world trade. National consciousness and national law were born.
LAYTON B. REGISTER
University of Pennsylvania Law Review.
* Mitchell, Ob. cit. p. 10.
THE POLICE POWER.
BY Hon. ANDREW J. Cobb, of THE ATHENS, GEORGIA BAR. Fort MER PRESIDING JUSTICE OF THE SUPREME CourT OF GEORGIA, LECTURER ON CONSTITUTIONAL LAW, LAW DEPARTMENT UNIVERSITY OF GEORGIA.
The three indispensable powers of government are the taxing power, the power of eminent domain, and the police power. Government owes its life to the first, its ability to perform its functions to the second, and its orderly continu. ance to the third. Property is either taken or damaged when any one of these powers is exercised, but Government never takes or damages property without compensation. The citi. zen cannot be required to surrender anything that he may own to the Government without something being given in return by the Government. The compensation given by the government is not the same in all cases. The manner in which it is given varies in different cases where a Government sees proper to require of the citizen some portion of that which he owns and possesses. When the power of eminent domain is exercised the compensation is in money, When the citizen is deprived of property or a property right under the taxing or police power, the compensation received by the citizen is protection, health, peace, order, and the like. The line of demarcation between these powers is sometimes difficult of . ascertainment, though the line between the power of eminent domain and the taxing power is more capable of exact designation than the line marking the difference between the power of eminent domain and the police power. One of the powers may be, for its complete exercise, dependent upon one of the others. The police power is sometimes dependent upon the taxing power. An inspection law, so far as it relates to the matter of surveillance of the business of a citizen, has its foundation in the police power, but the fees which the citizen is required to pay to the inspector are really collected under the taxing power. Each of the powers is inherent in Government. The limitations that may be placed upon the exercise of any of them are to be found either in constitutions or statutes. The exercise of each must be derived from a legislative enactment, and the legislative enactment must be within the prescribed bounds of the constitution. When there is no limit fixed in the constitution, the question as to the limit and extent of the power is to be answered primarily by
the Legislature. Where the constitution has spoken in reference to the subject, the question as to whether the legislative enactment is within the bounds of the constitution is for determination by the Courts. The police power as to its limits and extent is undefined and indefinable. This is so from necessity. It is through the exercise of this power that we have a guaranty of health, peace, order, and all of those things which make life and its enjoyment possible. The police power may have to be called into exercise in what may be considered the more trivial affairs of life, as well as in those of gravest importance. It is the power which can require the careless citizen to bury a dead fowl upon his premises. It may regulate men of the learned professions in the exercise of the duties of their professional calling when it relates to the health or property of the citizen. It may regulate the great carriers of the world as to the manner in which articles which are dangerous to life may be transported, and prohibit the carriage of those that are a menace to health. By it the limb that overhangs the highway may be cut off, and the edifice may be destroyed to prevent the spread of a conflagration. In its exercise the harmless drunken person may be removed from the street, and the place at which he secured his liquor in violation of the law may be closed. We may obtain a view of the extent of the power by illustration, but its extent cannot be compressed within the bounds of a definition. The beneficent ef. fects that result from its exercise are largely due to its indefinable character. There are some things which the law cannot afford to define. The moment that accurate definition appears, the hands of a wrongdoer are sometimes unloosed. Is the police power then an arbitrary power? By no means. Its exercise is subject to limitations in the constitution and is also subject to limitations by the Legislature, and the enactment of the Legislature is subject to reveiw and revision by the Courts. The Legislature may prohibit those things which are prejudicial to the welfare of the public, or it may command those things which are promotive of the general welfare. At last, however, what is or what is not in the domain of the police power is a judicial question. What would not be a legitimate exercise of the power in one territory might be a necessary exercise in another. What