[v] Ernest Moliner:
Catalonia, birthplace of The Consulate of the Sea, has undergone many religious, governmental, racial, and geographic changes in its long and colorful history. It is a coastal territory in northeast Spain, stretching from the Pyrenees at the French border southward along the Mediterranean. In 801, it was conquered by Charlemagne (785-811) and established as the Spanish Mark. (1) The County of Barcelona was constituted in 817 under the Frankish crown , and the Counts of Barcelona became the chief lords of this region in the ninth century. In 1137, the County of Barcelona was united with the Kingdom of Aragon through the marriage of Count Raymond Berengar and Petronella of Aragon.
The Christian Reconquista of Spain gained strength in the eleventh century with the decline of the Caliphate of Cordova. Christian military campaigns aided by the Knights Templar and Hospitalers deprived the Muslims of much Iberian territory but the struggle continued until the end of the fifteenth century before the last Islamic state on the peninsula was conquered. The reconquered territories were added to Castile and Aragon to form the Christian kingdom of Spain.
In spite of their absorption by the Spanish kingdom, Catalonians retained their own system of law, their language, their legislative assembly, and especially, their regional pride and individualistic disposition. Catalonia had also experienced popish control due to the excommunication of Alfonso IX of Leon (1188-1230), who was determined to marry, within the prohibited degree of relationship, Berengaria of Castile. He was supported in this endeavor by King Sancho VII of Navarre (1150-1194). To regain the pope's good will, Alfonso and Sancho undertook a [vi] crusade against the Muslims that resulted in a great victory for the Christian forces at Navas de Tolosa in July 1212. Pedro II of Aragon (1194-1213) was crowned in Rome by Pope Innocent III (1198-1216).
After the union of the crowns of Castile and Aragon in 1475, Catalonian individualism asserted itself in many revolts against the Castilian kings. These revolts resulted from the harsh treatment suffered by the Catalans and infringements of their autonomy, but eventually they were totally assimilated politically, although never culturally, into the Spanish kingdom.
It was primarily Catalonian merchants and adventurers, such as the mercenary Roger de Flor, the infamous scourge of the Italians and Greeks, who were responsible for the expansion of the House of Aragon up to the fifteenth century. Catalonian coastal cities had been famous trading centers since the Phoenician era and in the Middle Ages presented serious commercial competition to Venice and Genoa.
In the Middle Ages Spanish culture, to a large degree, was conditioned by exterior influences. Her language, customs, architecture, social and political orientation are all indicative of foreign invasions and domination. Old French, one of the Romance tongues, was the language of the Catalonian intelligentsia, as evidenced by manuscripts, poetry, and songs that have survived to the present day. Provencal was the Romance language of southwest France, and the one that most influenced the development of Catalan, the earliest Spanish vernacular used in government documents in the reign of Ferdinand III, king of Leon and Castile (1217-1252) . In time, Catalan was replaced by Castilian while the Provencal dialect gained the support of William IX, Duke of Aquitaine (1080-1127) as well as that of his descendants, Eleanor of Aquitaine, and her son, King Richard I (1189-1199) of England, all patrons of balladists and writers in that tongue.
The Albigensian Crusade (l209-l229) (2) and the introduction of the Inquisition drove many intellectuals from southern France into Italy and Spain, further entrenching this language. Thus, the Iberian peninsula up to the fifteenth century was the home of many languages and dialects. In each of these dialects the influence of Latin is immediately evident. Therefore it was proper that The Consulate of the Sea be published in a dialect that all literate persons could read and understand, bearing in mind that every educated person in the territories of Catalonia as well as elsewhere in Europe would have reference to this compilation. It made little difference [vii] whether one was privately tutored or attended Church-controlled schools (for there were no others) staffed by clergy. Latin was the required language, as it was the key that unlocked all the mysteries of any Romance dialect.
Commercial intercourse between many nationalities and races can be easily traced to Hamilcar Barca, the Carthaginian, who founded commercial colonies in Spain following the First Punic War (268-241 B.C.). His illustrious son, Hannibal, followed his father's policies in commerce. After the Second Punic War (218-202 B.C.), Spain became a Roman province. The struggle for control of Spain by the Visigoths, Vandals, and the Byzantine Emperor Justinian I (518-556) and the conquest of the peninsula by the Mohammedans in 711, are all part of that nation's colorful history. Each of these struggles resulted in drastic curtailment of trade. The inauguration of the Crusades in the eleventh century provided the necessary stimulus for a revival of trade in these regions.
Christian control of the Levantine ports (Syria, Egypt, Lebanon, Turkey, etc.) and the Mediterranean islands provided an unobstructed avenue of commence to the East. Venice, Genoa, and Pisa began to reap fantastic profits from this trade. Even the northern pirates of Wisby, who had ravished shipping in the Baltic and North Seas, turned to legitimate trade because it proved more profitable and less hazardous. The Catalonians with much prestige in trading from the earliest period of history were quick to grasp the opportunity. It was not long before Barcelona once again became one of the richest trading centers in Europe.
By the early twelfth century trade had spread to southern France. Merchants from Spain crossed the Pyrenean passes into France and continued on to the Flemish coast and German territories. The meeting of merchants on the broad plains of Champagne to trade their merchandise became an annual affair eagerly awaited in all parts of the commercial world. On the seas the merchants were exposed to pirates and privateers, to shipwreck and death. Meager knowledge of navigation, lack of proper navigational instruments, the nonexistence of lighthouses and beacon lights, dependence upon favorable winds, and the inability of vessels to withstand severe storms often ended in aimless sailing until the depletion of water and food resulted in the death of all aboard. If shipwrecked on foreign shores, custom permitted the local inhabitants to keep all salvaged cargo including the vessel. If driven by storms toward an unfriendly or enemy territory, they were often enslaved or put to death, if it was inconvenient to collect ransom for their release. The development of a convoy system provided some degree of safety but increased the cost of transportation of merchandise, due to the necessity of hiring armed naval units.
Overland travel was equally hazardous. Trade routes were [viii] usually controlled by brigands or mercenaries in the service of some local lord who preyed on caravans. For better protection merchants generally traveled in large caravans accompanied by an armed escort. There were practically no improved roads, hence almost all merchandise had to be carried by pack animals. Bridges across the many rivers that had to be crossed were either nonexistent on in a poor state of repair; nevertheless, heavy tolls were levied on the merchants by the local rulers who owned these bridges. In fact, many of these bridges were mere footpaths unable to support the heavy pack animals. In such cases, caravans were ferried across at even greater expense.
Rainy and cold seasons were unsuitable for travel. There were no inns or way stations where the merchants, their retainers, and their animals could find shelter and food. Commercial fairs, which were first organized in the twelfth century, were usually held in large commercial cities where the merchants found some protection from the petty provincial despots. A round-trip journey required many months to complete, barring accidents and delays. Many caravans never returned from a trip, their cargo stolen, and their retainers killed, sold into slavery, on held for ransom. The introduction of the "peace of the fair" by kings, bishops, and other nobles in territories under their control, provided complete protection for the merchants while they were attending the fair and also protection while traveling to and from the fair. This protection was accomplished by a pass issued by a powerful king or lord who threatened reprisals on any people who would dare to molest the merchants.
Each commercial city had its own laws and customs, its own system of justice. Any merchant who was not a resident of the city in which he carried on his trade was regarded as a foreigner. For protection the merchants needed a reliable code of general laws and impartial courts. In time the various customs and statutes were written down for all to observe and obey. Because the cities profited greatly from such commerce, the local governments began to enforce these ordinances. A court system presided over by the "lord of the fair" was established to cope with any trade or behavioral violations by the merchants. It was a merchants' court with jurisdiction to control prices, quality of goods, and provide protection for the merchant and his property. Generally, these counts were called pied poudre courts, named after the dusty footed merchants who frequented them. These informal counts met in session at any time of the day when the need arose to settle some dispute. The laws on ordinances that these judicial bodies enforced were not promulgated by kings or other rulers, but were merely customary laws of the merchant class.
In time this body of merchant law gained recognition and [ix] was being enforced in all the ports and trading centers of Europe. It remained largely unwritten but differed very little between countries. Commercial activity created many new coastal cities and reestablished old trading centers. Importation of many new types of merchandise created new markets and began to break down the manor economy of many areas. As more goods arrived, merchants no longer depended on seasonal trade but conducted business daily in permanent establishments. Soon the economy of many states became totally dependent upon foreign trade. Commercial intercourse between East and West brought goods from many distant lands, primarily luxury merchandise. These in turn helped to drain off gold from Europe, adding a new problem to the emerging national economies. The coastal cities of the Mediterranean and the Adriatic became ideal avenues of commercial exchange between Europe, Africa, and Asia.
Until almost the end of the fifteenth century, when new territorial discoveries made additional routes possible, trade from the East to Europe was carried on mainly over one of the three well-established paths of commerce. The first or most northerly stretched directly westward from China through the Gobi Desert, linking such great trading centers as Samarkand and Bokhara to the Caspian Sea region, from whence one branch led to the southwest through Asia Minor and Syria to the Black Sea and the Mediterranean; the second branch went north around the Caspian and reached the Black Sea; the third branch ran northward into Russia as far as Novgorod and beyond. The second route was the southernmost and mainly a water route. It started from the rich Malabar coast of India, crossed the Indian Ocean, and continued through the Red Sea to its northern end. There the goods were unloaded and carried by caravan to Cairo, Alexandria, and other smaller trade centers in that immediate area. The third route lay somewhat to the north. It also originated from Malabar, passed through the Persian Gulf from where the goods were carried overland to the Black Sea on to the Mediterranean. Marseilles on the Mediterranean and Bordeaux on the Atlantic were often distribution centers for goods bound to other port cities as well as all major inland cities in France, Germany, and even Slavic areas. Similarly, Barcelona, Venice, Pisa, Naples and other coastal cities served as distribution points for other areas. There were, of course, many other less well-established routes that served practically all parts of the known world.
There were of course many other sea and land routes that reached to practically all parts of the known world. Dangerous sea routes were protected by powerful royal navies making shipping relatively safe, especially after Arab sea power was broken.(3)
[x] Although most of the commercial activity was privately owned, it was generally supervised and partly controlled by the state because it contributed greatly to the national economy.
From China and India came perfumes, silks, dyes, spices, aromatics, drugs, and tapestries. From northern Europe came furs, horses, leather, hemp, tan, tallow, beeswax, amber, salt, fish, and slaves. Markets of the Near East and Arabia supplied fine woods, rugs, carpets, tapestries, exquisite cloth, jewelry, and metal products. Most of this luxury merchandise was reexported at a considerable profit, becoming the basis for new wealth. To properly handle the growing exchange of goods, which could no longer be expedited on a barter basis, coins of gold and silver were minted. One of the earliest of such coins was the bezant (byzant) , which became a standard coin for the early Byzantine merchants and later for merchants of all nationalities. Soon other nations and commercial cities followed in minting their own coins. Many of the rich merchants began to act as brokers leaving the actual trading to those less prosperous.
Motivated by potential profits, merchants of every nationality ventured into overseas trade. Factoring stations and distribution centers were established by major commercial houses leading to the establishment of price controls and the development of monopolies. By the beginning of the thirteenth century in all large commercial cities there appeared a new class of people eager to share in the profits of trade. The concentration of money in commercial cities provided new opportunities for investment of surplus capital in new industries producing a variety of merchandise for new and expanding markets. New trade routes were opened, better merchandising methods were devised, and the first signs of modern capitalism appeared. The rise of nationalistic feeling became associated with commercialism. National pride was associated with the volume of commence. Economic imperialism produced keen competition among nations for control of specific markets. The stronger states began to resort to the use of military power to establish economic spheres of influence, denying to weaker states the opportunity of competing for the richest markets.
The slave trade, which originally began with the sale of Christians by their Mohammedan captors and of Arabs by the [xi] Christians, proved so profitable that it expanded into a specialty trade often chartered by local kings as an exclusive monopoly. It became nonrestrictive in that it included not only captured Christian or Arab prisoners but people of all nationalities and colors. This type of slavery continued and increased in volume well into the late seventeenth century.
Religious convictions appeared to have had no restraining influence on the merchant class. In the earlier period the papacy was occupied with other problems, such as territorial aggrandizement, heresies, crusades, internal disorder, and theological issues. When commerce developed to the level of controlling national economies, whatever position the Church might have taken on the moral and ethical aspects of commercialism was completely ignored by the merchant princes, and the papacy no longer had the military potential to enforce its dicta.
Perhaps a classic example of profit potential in this era of crass commercialism was the German House of Fugger. Johann Fugger, a weaver of Augsburg, entered into overseas trade about 1380 on a very modest scale. In less than one century his descendant, Jacob Fugger II (Jacob the Rich) (1459-1525), controlled vast real estate holdings, fleets of merchant ships, rich gold and copper mining interests, and the largest and richest banking business in Europe. He was able to lend huge sums of money to Emperor Maximilian I (1499-1519) in exchange for certain commercial favors. By using this money to bribe the Electors, Maximilian was able to assure for himself the election to the Imperial throne. In return, he ennobled the Fugger family. By establishing a novel system of communications and by having spies within the courts of European ruling families, he was, before anyone else, able to get any information he needed for his business transactions. A system of runners, mounted messengers, fast ships, signal lights on hills and mountains brought news of wars, victories and defeats, floods, shipwrecks, and other disasters on significant changes in the political and economic outlook allowing him to manipulate trade, corner the market on many commodities, furnish money to aid the favorable outcome of battles, and thus be in a position to amass wealth unmatched by any other commercial family in Europe.
Merchants of Pisa, Barcelona, Venice, Genoa, and other cities were able to get special concessions and preferential treatment in all foreign ports by payment of special fees and bribery of officials. Arabian merchants motivated by huge profits were often instrumental in helping European merchants obtain special concessions in Baghdad, Damascus, Alexandria, and other parts of the Islamic world. Special districts were set aside for the use of European merchants in most of these foreign ports and were vested with a degree of extraterritoriality. This practice led to the establishment of permanent trading [xii] posts that were free from all interference by local officials. Increase in commerce necessitated the establishment of regulatory agencies and the enactment of special legal codes. In order to achieve some degree of uniformity in the enforcement of mercantile law, it was necessary to codify these ordinances, publish and circulate them, in order that all engaged in such trade would be aware of their existence.
Probably the earliest known compilation of marine laws are the laws of Hammurabi, The Babylonian Index, of the eighteenth century B.C. The Phoenicians, a great seafaring people, promulgated other laws that governed sea commerce in the Mediterranean, about 2000 B.C. The Greeks, who followed in the Phoenicians' footsteps, adopted the Phoenician code adding some of their own ordinances. Greek court records of the fourth century indicate that these laws embraced litigations relating to marine loans, construction of vessels, buying and selling of vessels, lading charges, responsibility for the cargo shipped, and other contractual matters. The island of Rhodes, a commercial center, adopted many of these Phoenician statutes, later referred to erroneously as the Rhodian Laws. The Romans, who succeeded the Greeks as the Mediterranean world's commercial power, adopted, edited, and embellished these early statutes and saw to their enforcement within their empire. References to these early Phoenician laws can be found in the writings of Plautus, Cicero, Livy, Strabo, and other Roman publicists.
The rising Byzantine Empire found these Roman laws in general acceptance in most trading centers. It is claimed that the Byzantine emperor, Leo the Isaurian (714-741), issued a code of laws called in Greek, Nomos Rodion Nautikos, named after the Rhodian Laws. However, upon close examination, the Isaurian statutes have actually no relation to the earlier Rhodian Laws.
Thus, customs and traditions of the merchants, ordinances of commercial cities, proclamations and decrees of kings, pronouncements and papal bulls enacted oven many centuries began to emerge in the medieval period as ordinances for all commercial activities, and in time gained universal acceptance and enforcement.
There existed as early as the eleventh century institutions of merchant and marine guilds that issued ordinances regulating maritime commerce. These guilds often served in an advisory capacity to the royally and locally appointed judges who had been invested with authority to arbitrate all disputes relating to marine trade. Due to the rapid expansion of commerce, additional functionaries were appointed to arbitrate the increasing number of disputes of this nature. The kings of Aragon, among others, often endowed commercial cities with special charters and privileges empowering them to create such offices with powers to regulate all commerce within their domain. [xiii] By the end of the fourteenth century the office of the Sea Consul was well entrenched in most Mediterranean trading centers. Special tribunals called Consulatus Maris (4) were founded and authorized to arbitrate all commercial and noncommercial maritime disputes.
The first such codification was published in 1010, entitled, Customs of the City of Amalfitina, "written and proclaimed in the year of Our Lord 1010." A second codification was published in 1063 in the city of Trani. In 1509, an edited copy of the Ordinances of Trani of 1063 was incorporated into the statutes of the city of Fermo. It is also known that in the area of the Baltic and the North Seas, Schleswig, Riga, Wisby, Hamburg, Lübeck, and other cities of the Hanseatic League adopted some of these laws as early as the ninth century, and that they were officially published in the thirteenth and fourteenth centuries under the auspices of the Hanseatic League, under the title Waterrecht, following a conference of League members in 1407. These compilations were usually referred to as the Laws of Wisby. In the thirteenth century, the Laws of Oléron were promulgated by Louis IX, (1226-1270) king of France. The British Black Book of The Admiralty also dates its beginning to the middle thirteenth century. All these compilations contributed significantly to the later formation of internationally acceptable maritime law. All of these attempts at codification are best exemplified by the codification, publication, and general acceptance in the fifteenth century of the Consulate of the Sea. Azuni referred to the Consulate, as a document "whose authority is above all others." (5) Perusal of modern international law will reveal its roots are contained within provisions included in the Consulate of the Sea. These early ordinances relating to naval combat, marine insurance, safe passage, contraband goods, enemy goods on neutral vessels, neutral goods on enemy vessels, and many others are to this day pant of the body of the law of the sea.
Material contained in this manuscript consists of three separate codifications of statutes, royal proclamations, and ordinances of city councilmen, which regulated marine commerce in the Mediterranean regions from the eleventh to the seventeenth centuries.
Part I, numbering forty-three articles, prescribes methods of electing the Consuls of the Sea and Judges of Appeal, the juridical competence of each, and procedural regulations regarding [xiv] adjudication of cases brought before them. Article 43 prescribes the oath of office for attorneys of Majorca, decreed by King James I (1213-1276) of Aragon, and promulgated before the year 1275. It is not known when and by whom this oath was imposed upon the attorneys of Barcelona and other cities. Francis Celelles, the original codifier of these documents, omitted Articles 44 and 45, probably because the contents, relating to shipments bound for Alexandria, were unintelligible.
Part II, Articles 46 through 334, contains the bylaws of the year 1343, and refers to two main areas of marine law. The first area, Articles 46 through 297, is concerned with the generally accepted customs of marine trade, while the second area, Articles 298 through 334, relates to privateering, piracy, armed naval expeditions, convoys, marine insurance, bills of exchange and other sundry matters. In the original manuscript at the Bibliotheque Nationale in Paris, the following inscription appears at the end of Article 217: "The book ends here. Glory be to Jesus Christ. Amen." Celelles changed this sequence by noting at the end of Article 247, "Till now we have discussed laws and ordinances relating to armed units." At the end of Article 334, he added: "At this point ends the book generally called the Consulate." There follows a series of proclamations of these articles by several kings and city councils dating from 1075 to 1270. Pardessus, probably the most reliable of the many researchers who had engaged in exhaustive study of these documents, was of the opinion that all of these proclamations were fabrications without any basis in fact. (6) Part II ends with a statement that the original book was "printed by Peter Posa, priest and printer, on July 14, 1494, at Barcelona."
Part III, lacking pagination, contains royal proclamations of King Peter III (?) (1276-1285) of Aragon, and the Ordinances of the City Council of Barcelona. It is actually an addendum and does not appear to have been part of the original manuscript. It is evident that while editing the manuscript Celelles added several ordinances and withheld many, including the Ordinance of the Council of the City of Barcelona of 1484, relating to marine insurance, which superseded the Ordinances of 1435, 1436, 1458, and 1461. The 1494 edition of the Consulate does not contain the title page, and no explanation is given in the body of the book for this omission. It is believed to have been lost.
The first printing of this compilation in the Catalan language, executed by Company and published at Barcelona has been [xv] lost. Many authorities in this field believe that some of the material contained within the pages of the Consulate actually existed before the year 1075, but that it had been codified much later. Pardessus, in his manuscript Dels bons stablimens e costumes de la mar, fixed the date of codification in manuscript form at l340. (7) He may or may not have confused this with a compilation published by an unknown publicist in 1370, in Catalan, entitled Consolat de Mar. The title Lo Libre de Consolat de Mar, appeared for the first time in the Ordinances of the Councilmen of Barcelona in 1435, and in printed form in the 1494 edition. It appears to have served as a model for the Catalan editions of 1502, 1517, 1523, and 1592. Fenwick, in discussing the early development of maritime law wrote, "a very important body of collections of maritime customs setting forth the rights and duties of merchants and shipowners of different countries in their dealings with one another. . . and in particular the Consolate del Mare of the fourteenth century." (8) Pardessus and Azuni disagree as to the origin and content of the famous Consolate del Mare. (9) Azuni ascribed it to a compilation made at Pisa, which was formally blessed by Pope Gregory VII (1073-1085) in l075. (10) Pardessus, refuting Azuni's contention, ascribed it to a collection made in Barcelona, written in a Romance dialect, under the title Consulat de la Mar, and published in the fourteenth century. (11)
In spite of the many shortcomings of the original manuscript, Pardessus referred to it as: ". . .too well known and famous, not to read the opinions of all these writers which wrote about it. . ." (12) Casaregis judged it a "monumental contribution to early private international law. . . . The above was accepted as a basis and norms for all marine contracts by all the people of Europe engaged in commerce and deserved to be called, Universalis Consulata." (13) Bonnecase argued that "within these [xvi] articles, there are present. . . all contemporary marine institutions and at least [the] nucleus of these institutions." (14) De Cussy believed that the Consulate was the basis for the marine laws of France, Flanders, the Ordinances of the Hanseatic League, and the Laws of Wisby. (15) Arnold Vinnius, often quoted by Azuni, stated that according to the foremost Italian, French, and English writers ". . .the major share of laws practiced by these nations in disputes in sea matters has been incorporated from the Consulate." (16)