Conclusions
Overall, GA procedures should not be characterised as a strategic political-economic gambit, systematically utilised. They are better understood as an expression of the broader political economy of the port and the culture of license that characterised it. Access to justice was a means of promoting political-economic interests. Maria Fusaro shows how in the Venetian republic, English merchants and shipmasters were unable to access summary justice at the court of the
Cinque Savi alla Mercanzia because of the risk they posed to Venice’s own trade, instead being compelled to use the
Giudice del Forestier until the end of the seventeenth century.
1 Fusaro, ‘Politics of justice/politics of trade’, pp. 145–7. The Pisan court privileged the English and Dutch by waiving procedural niceties, though here they did informally and to the Northerner’s benefit, since Tuscany had nothing to gain and everything to lose by alienating these important interest groups.
Though the case thus mirrors a political economy that was particular to Tuscany then, it also illustrates broader truths of relevance to the early modern maritime economy as a whole. The case of the
Alice and Francis gives us a rare opportunity to prove the importance of private agreement and collusion, which are so often hidden from us, even when a court ostensibly handled the affair. It is clear that the court authorities exaggerated the structural advantages enjoyed by all masters: their willingness to couch
testimoniali in the appropriate legal language and their propensity to give masters the benefit of the doubt in judgements is undeniable. If the Tuscan authorities were guilty as Finch charged them, it was as accomplices rather than as ringleaders, aiding and abetting rather than perpetrating.
2 Tazzara, The Free Port of Livorno, p. 127. Frauds and near-frauds, meanwhile, seem to have been ubiquitous, and were as common in England as anywhere else: Samuel Pepys’s diary, in fact, relates an insurance case he heard before the King’s Bench in which the shipmaster submitted a fraudulent report, which would in fact appear to have centred on a fraudulent GA claim:
[the master] had given his men money to content them; and yet, for all this, he did bring some of them to swear that it was very stormy weather, and [they] did all they could to save her, and that she was seven feete deep water in hold, and were fain to cut her main and foremast.
3 Entry for 1 December 1663. Samuel Pepys, Samuel Pepys’s Diary, ed. Phil Gyford <www.pepysdiary.com/diary/1663/12/01/> [accessed 18 August 2021].In defending their approach from accusations of malpractice, apologists for the court often made reference to the multilateral nature of the procedure and the requirement to respect judgements made in other centres. This was, however, a concrete and unavoidable reality. To a certain extent, judgements made elsewhere simply had to be respected whether one liked it or not; if this were not the case, the system could not work. Acceptance, if sometimes begrudging and uneasy, characterised the system. Perhaps things would have been easier had actors been able to avail themselves of universally accepted laws regarding GA, of the type the mercatorists envisage. Yet on this evidence, there is no suggestion that they needed it. Instead – and this is crucial – a multijurisdictional system depended not on the uniformity of GA, nor even its broad similarity across jurisdictions, but rather recognition of the juridical and political authority inherent in other systems.
4 Dyble, ‘Lex mercatoria’, p. 694. GA in fact functioned thanks to being embedded in what Lauren Benton calls an institutional regime: ‘Institutional regimes (broadly defined as the repetition of structurally similar ways of organizing authority) make international regimes (narrowly defined as interstate agreements) possible by allowing political authorities to identify one another’.
5 Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002), p. 24. If we instead define ‘international regime’ in broad terms, this then becomes an accurate description of the situation that prevailed in GA cases.
Finally, in light of the diplomatic disputes between England and Tuscany over GA, as well as the concurrent disputes over wage, we might tentatively begin to identify two different varieties of maritime capitalism at work in the last third of the seventeenth century. These two variants do not correspond to the central division of the New Institutionalist between the relative security of property rights in North-Western Europe when compared to the ‘absolutist’ Catholic states of the rest of the continent. Douglass North, as well as more recent economic historians such as Daron Acemoglu and James Robinson, have argued that a key reason for the divergent economic performance of Northern and Southern Europe was the far greater protection for property rights on offer in North-Western Europe. This in turn was the result of centralised but ‘inclusive’ political institutions, which put a bridle on arbitrary extraction by rulers and which allowed a larger section of the population to engage in a wide range of economic activities, leading to the emergence of a powerful merchant class.
6 Acemoglu and Robinson, Why Nations Fail, pp. 77–83, 102–3; North and Weingast, ‘The evolution of institutions’, pp. 803–32. The court of the
Consoli’s ability to adjudicate in GA cases did indeed have clear implications for entitlement to property, since it forced one set of property owners, unaffected by a
casus fortuitus, to recognise the right of another party over their own possessions. It is also true that Tuscan authorities sometimes failed to adequately protect the property rights of the parties involved. Yet this was not the result of ‘extractive’ institutions, an over-mighty absolutist state which could not help but disrupt the activities of private individuals and help itself to the fruit of their labours. It was rather, as Stephan Epstein has suggested, the weakness of ‘absolutist’ states – or rather in this case, the weakness of the Tuscan commercial position – which was to blame.
7 Stephan Epstein, Freedom and Growth. The Rise of States and Markets in Europe, 1300–1750 (London: Routledge, 2001), p. 8. The Tuscan authorities were afraid of driving away the English merchants on which the port’s vitality depended. It was therefore the weakness of the Tuscan state vis-à-vis the English merchants in the port (or, at least, the fact that the Tuscans perceived their own position to be weak) which prompted them to waive their responsibility to adjudicate the case, and to properly represent the interests of the absent. It is thus impossible to form a judgement on the Tuscan institutional set up independent of the wider conditions in which these existed. To borrow the words of Alida Clemente and Roberto Zaugg, ‘the regulative interventions of different states tend to overlap and produce complex configurations … and the structural asymmetries in inter-regional relations play a crucial role with regard to the emergence … of institutional mechanisms’.
8 Alida Clemente and Roberto Zaugg, ‘Hermes, the Leviathan and the grand narrative of New Institutional Economics. The quest for development in the eighteenth-century Kingdom of Naples’, Journal of Modern European History 15 (2017), 108–29, at p. 114. In a similar vein, it was not primarily the Tuscan merchants, or those based in Tuscany, who suffered as a result of the
Consoli’s decision not to intervene to protect the property rights of absent merchants. The merchants within the port presumably did well out of the fact that they were given free rein to negotiate the GA with the shipmaster. It was, as has been noted, the merchants outside of Tuscany who suffered. The Tuscan ‘Northern GA policy’ confirms, to again quote Clemente and Zaugg, that ‘the institutional framework in which economic transactions take place cannot be reduced to the nation state: it is inherently transnational’.
9 Clemente and Zaugg, ‘The grand narrative of New Institutional Economics’, p. 114. If there is a difference between the two jurisdictions as reflected in their treatment of GA, it is rather in the different weight they gave to economic interests of the different actors involved. The issue of mariners’ compensation specifically, would seem to be an example of the English Parliament – even before the Glorious Revolution – seeking to promote the interests of the merchant class in a way which other maritime jurisdictions were not. Whereas other jurisdictions, including Tuscany, allowed the mariners some compensation through GA, in England, the matter had been placed solely in the hands of merchants, and a statutory limit placed on their generosity. English GA legislation, therefore, in as much as such a thing existed, was weighted towards the merchant at the expense of the seaman, just as laws over seamen’s wages also favoured the interests of the merchant class by allowing them better control over the maritime labour force.
10 For the disputes over seamen’s wages between England and Tuscany, see Addobbati, ‘Until the very last nail’; Fusaro, ‘The invasion of northern litigants’. (This use of GA would also seem to be an English rather than a North-Western European phenomenon: Dutch GA provisions, as we have seen, guaranteed forms of compensation to mariners.)
11 The 1563 Ordonnance, for example, guaranteed compensation to seamen after a combat. See Ordonnance of Phillip II of 1563, Title IV, Article 2, quoted in Pardessus, Collection de lois maritimes, vol. 4, p. 79.This difference over the approach to seamen’s wages leads Maria Fusaro to posit two different ‘varieties of capitalism’ in England and in Southern Europe, in an interpretation which gives a negative rather than a positive valence to England’s path.
12 Maria Fusaro, ‘The burden of risk: early modern maritime enterprise and varieties of capitalism’, Business History Review 94 (2020), 179–200. In Fusaro’s analysis, following the lead provided by Avner Offer and David Ormrod’s analysis of the English agricultural economy, the English pre-modern maritime economy was characterised by the ease with which the risks of economic activity could be displaced by the propertied individuals onto the labour force.
13 Fusaro, ‘The burden of risk’, pp. 190, 199. This was not, in Fusaro’s view, so much the result of England’s particular political structures, but rather the result of a historically contingent economic and legal culture which conceived of the labour force through the prism of the master–servant relationship. Italian capitalism, by contrast, had emerged in an intellectual and political environment concerned with the dignity of work, and in a city-state context in which capitalism was ‘based on a strong and articulated conception of community with jurisdictional and social implications’.
14 Fusaro, ‘The burden of risk’, p. 196. It thus retained a higher regard for security and protection in the workplace, or, in the case of GA, appraised the competing demands of the ‘trade’ and ‘transport’ sectors of the maritime economy differently. While we might not wish to exaggerate the role of the Pisan
Consoli as protectors of seamen’s interests, there was clearly no incentive to erode the security of their position in order to promote the interests of another class, as was the case in England.
It may be, in the final analysis, that an ‘English variety of capitalism’ did in fact result in a more productive economic environment and may have been a necessary step in birthing the industrial revolution: such speculations are clearly beyond the scope of the present investigation and at any rate concern issues much wider than maritime risk-sharing practices. Be that as it may, the findings on GA seem to better reflect the schema posited by Fusaro rather than that of Acemoglu and Robinson. The Tuscan ‘failure’ to protect merchants’ property rights was not the result of the ‘absolutist’ or ‘extractive’ tendencies of their institutions; if the decisions of the Consoli were due to anything beyond a structural favouritism built into GA itself, they were due to recognition of the fact that the transport sector, including mariners, did in fact form an indispensable part of the maritime economy, a part which had historically been in need of promotion and protection for the health of the sector as a whole.