The only damage happening on the high seas which they contemplate is damage arising from tempest. If a jettison was thought necessary the merchants and crew should be consulted.1 The master might disregard the refusal of the merchants to consent to a jettison, if he and at least a third part of the crew were prepared to swear that it was necessary. In this case the cargo saved and either the value of the ship or of the freight must contribute to the loss; while the sailors who had done their duty ought to have a tun of wine presented to them from the cargo.3 A similar rule was applied when it was necessary to cut the mast or cables to save the ship. The cargo paid its share, and the merchants must pay their proportion before the goods were unloaded out of the ship. If they refused to pay, and in consequence of the dispute, the cargo deteriorated, they must bear the loss. If the ship was lost the sailors were entitled to be given something from the saved goods to enable them to return home; " but, as we have seen, they were not entitled to wages." The tackle of the ship must be kept safe for the owners; and, as we have seen, the merchants were entitled to have the cargo saved, paying freight.9 5 8 6 That The laws of Oleron thus provided a set of rules which were no doubt generally sufficient to enable juries of merchants and mariners to settle most of the problems of maritime law which arose in the sea-port towns in the early medieval period. 10 they would require to be supplemented as soon as any extension of sea-borne commerce took place is clear. There were many problems for which they made no provision, and there were many points upon which their meaning was by no means clear. Moreover, in course of time it was certain that peculiarities of national maritime custom would begin to make their influence felt. In the thirteenth century these developments had already begun. There are eleven additional rules in the edition of the laws of Oleron contained in the Black Book of the Admiralty.11 At least two of these are of native origin. One of them records an ordinance of John's reign that all ships shall strike their sails when required to do so by anyone in command of one of the king's ships.12 The other records the effect of an ordinance made 1 § 8. 3 Ibid. 5 Ibid. 683; as late as the beginning of the nineteenth century it seems to have been uncertain whether or not this rule was a part of English law, Abbott, Merchant Ships and Seamen (3rd ed. 1808), 437. 2 Ibid 7 Above 121. 10" Ces dispositions 8 § 3. $$ 9. 9 Above 122. étaient concues dans un esprit très pratique et rédigées dans un langage accessible aux esprits les moins cultivés," Desjardins, Droit Commercial Maritime 35. 11 Black Book (R.S.) i 121-131, articles 25-35. 12 Art. 35; Twiss thinks it was made at Hastings, March 30th, 1201, ibid 129 n. 3; introd. xlix seqq. by Edward I. in answer to a demand made by the Barons of the Cinque Ports, the sailors of Yarmouth, and of other English ports. It provided that, in case of jettison, the ship should lose the freight of the goods jettisoned, but that neither the ship nor its furniture should contribute to the loss. Of the rest, six probably were not purely English developments, as they are found, together with other additions, in that one of the Middleburgh manuscripts which is preserved in the royal library at the Hague.' That they were accepted in England is clear from the fact that they are included in the Black Books and in other English MSS. of these laws. The first of these articles provides that, if a merchant freighted a ship, and the ship was detained by the fault of the master or the lord of the owner, the merchant might throw up his contract.3 Other articles provide for the right of the merchant who freights a ship to have the whole cargo space in the ship for his goods;* for the customary gratuities given by the merchant to the mariners, which are stated specifically to be not legally due; 5 for the care of the cargo; and for the obligation of the merchant to unload within a certain number of days, and for the rights of the master if he does not. The remaining articles may be simply statements of English custom. One provides for the rights of the mariners hired on the terms that they share the freight; and it does not substantially differ from an earlier article on the same matter." Another part of this article, and the earlier articles as to contribution in case of jettison, are changed by the ordinance of Edward I 8 1 Art. 32; the article vouches the Roman law-i.e. the Rhodian Law de jactu, Dig. 14. 2; the original ordinance, which is far more detailed and a good deal clearer than the corresponding article in the Laws of Oleron, will be found in the London Liber Albus, Munimenta Gildhallæ (R.S.) i 490-492. 2 When Twiss edited the Black Book it was thought that these articles were found only in English MSS.-the Black Book itself, the Selden MS. in the Bodleian, and the Cottonian MS. Vespasian B. xxii in the British Museum, and others (see Black Book (R.S.) i lix, lx); but six of these articles (together with others not in the English MSS.) were found by Prof. Pols in the Middleburgh MS.; he has printed all these articles and shown the manner in which they vary from the English MSS. in Nouv. Rev. Hist. (1885) 459-465, and he gives an account of the MS. ibid 454-459; cf. Desjardins, Droit Commercial Maritime 36. 3 Art. 25. 4 Arts. 26, 27. 5 Art. 29, "Yf a marchaunt freyghte a shyp and load it with wynes, it seemeth to the maryners that the marchaunt ought of ryght to give to them in each place where they arrive, and on each day of a double feaste, a pot of wyne or two or three pots; the maryners by ryghte of lawe cannot have or demand anything, but the marchaunt may gyve them in courtoisie what he pleaseth." 6 Art. 30-if loaded with wine the master should find a boy to look after it, "with as muche care and as often as yf they were the wynes of the mayster"; also he must furnish the merchant with a kitchen if he demand it. Art. 31-the unloading must be done within twenty-one working days: if it is not, the master may put them on the quay under the charge of a mariner till his freight be paid. 8 Art. 28. 9 Art. 8. above mentioned. The two remaining articles provide for the liability of a pilot to compensate the owner and merchants if he negligently fails to bring his ship to port so that she perishes, and for his personal liability to punishment in such a case. 3 If the court of Admiralty had not arisen in the middle of the fourteenth century, these developments of maritime law, whether initiated by the king's Council, or adopted from the usage of our own or of foreign ports, would probably have been worked out into a body of maritime law by the courts of the more important sea-port towns. But the rise of that court put an end to the prospect that English maritime law would be developed in this way. The Admiralty soon began to attract the greater part of the maritime jurisdiction of the country; and therefore it is in the records of that court and in the cases decided there that we must look for the origins of our maritime law of to-day. state. The Admiralty was and still is primarily a department of It is for this reason that its earliest records were collected in a Black Book-analogous to the Red and Black Books of the Exchequer, and to the many similar books compiled by the clerical staff of the governing authorities of the larger boroughs." Its contents show us that, before the close of the mediaval period, both the administrative and the judicial sides of the Admiralty were beginning to develop. The Black Book of the Admiralty has been printed in the Rolls series under the editorship of Travers Twiss. It was probably compiled by an official of the Admiralty at some period in the reign of Henry VI.; but whether it is all written by the same hand is somewhat uncertain. As is usual with these official books, the documents which it contains come from many different periods and sources. It begins with a set of regulations for the Admiral and the fleet upon such matters as the duties wages and other rights of the Admiral, the wages of mariners, the order of sailing, the lights to be carried, prizes, visit and search, and compensation for collisions. Then we have a set of articles to be inquired of by a maritime inquest.1o The frame of Above 124 n. I. 2 Art. 33. Art. 34-the crew may cut off his head, " withoute the maryners beinge bounde to answer before any judge because the lodeman has committed high treasone against his undertakynge of the pilotage." For the history and development of the court see vol. i 544-547. 5 Vol. ii 224-226. 7 This edition was not printed from the missing, but from a copy, see vol. i ix-xxvii; was found at the bottom of a chest supposed to registrar of the court of Admiralty, ibid iii vii. 8 Black Book (R.S.) iii viii. Ibid 372, 373-374. original Black Book, which was then but shortly afterwards the missing book contain private papers belonging to the 9 Ibid i 1-39. 10 Ibid i 41-87. this inquest is exactly similar to the frame of the similar inquests held in the tourn or the eyre and, in later days, in the quarter sessions of the justices of the peace.1 Like them, it comprised a good deal of law old and new as to the criminal jurisdiction of the Admiralty, the rights of the crown, the Admiralty droits, and the jurisdiction of the court of Admiralty. Other later sets of articles, similar in character, but considerably expanded in size, are contained in later parts of the book. There is the inquisition taken at Queenborough in 1375,2 and a set of articles translated from French into Latin by Master Rowghton.3 Following on the first of these inquests there is the copy of the laws of Oleron, with the eleven additional articles of which I have already given some account. The growing fixity in the practice and procedure of the court is illustrated by an unfinished tract on the "ordo judiciorum," the author of which "was evidently a civilian of the school of Bologna." Its introductory article is framed on the model of a similar tract by the great Bartolus, and the author was perhaps his pupil. Its insertion in the Black Book illustrates the fact that the new court of Admiralty from the first looked for its models, not to the common law, but to the civil law procedure. But another regulation as to the procedure inserted in the Black Book, together with the inquisition to which I have alluded, show that in the exercise of its jurisdiction over criminal matters it at first adopted the common law procedure of presentment and inquest; and that in civil matters a trial by jury could be had. Moreover, there is no hint that any other procedure was adopted in the statutes of Richard II. and Henry IV.'s reigns. passed to restrict the Admirals' jurisdiction. If the civil law procedure had been adopted at that date Parliament would probably have made it a ground of complaint. But the delays of the civil law are alluded to in a petition of 1394,10 and the Italian tract contained rules both for civil and criminal procedure. 6 9 8 1 Vol. i 79, 269; vol. iv 142-144, and App. I. (2). 2 Black Book (R.S.) i 133-177. 3 Ibid 221-243; "who Magister Rowghton was is not precisely known, but he is supposed to have been Registrar or deputy Registrar of the Admiralty Court sometime in the reign of Henry VI.," ibid 221 n.; see L.Q.R. xxxvii 329. 5 Ibid 178-219. 4 Black Book (R.S.) i 88-129; above 123-125. 6 Ibid 278 n. 2; 220 n. 2. 7 Ibid 245, "Porrecto libello, et eidem responso negative per partem ream, de consuetudine judex potest procedere ad decidendum causam per patriam, dummodo per partes hinc inde posuerint se de concesso in juratam, et tunc judex decernat mandatum emanare, de venire faciendo duodecim probos et legales homines de vicineto parcium predictarum. . . ad dicendum inter partes, quidquid eis constiterit, et super veredictum dictorum duodecim debet judex conferre sententiam etc." 8 Above 125-126. 9 13 Richard II. st. i c. 5; 15 Richard II. c. 3; 2 Henry IV. c. II; vol. i 548-549. 10 Ř.P. iii 322 (17 Rich. II. no. 49); vol. i 548. It is clear from the statute of 15361 that at some period before that date the continental model had been adopted in criminal procedure; and, from the records of the court, that it had been also adopted in its civil procedure. The remainder of the Book consists of a number of miscellaneous documents which come from the period (1443-1446) when John Holland Duke of Exeter held the post of Admiral.3 For the most part they are documents connected with judicial procedure. There are also included among them two later documents which are safe conducts, one granted by Louis XI. and the other by Richard Duke of Gloucester while he held the post of Admiral.1 At the end there are a few miscellaneous documents connected rather with the office and duties of the Constable and Marshal than with the office and the duties of the Admiral.5 The editor of the Rolls series edition of the Black Book has added an appendix of documents connected with Sir Thomas Beaufort's tenure of the office of Admiral (1412-1426). Many of these documents refer to the judicial work of the Admiralty, and show that the forms of the court were becoming fixed. Then follow a list of the "fees, commodities, and profits appertaining to the Admiral by virtue of his office," the statutes of Richard II. and Henry IV.'s reigns concerning Admiralty jurisdiction,8 Henry V.'s statute making the breach of a truce or safe conduct high treason, certain French ordinances as to the French Admiralty and fleet, and some ordinances for soldiers in time of war made by Richard II. and Henry V.10 9 There are many sides of the Admiralty's judicial work which have little or no direct bearing upon the growth of English maritime law. Its criminal jurisdiction, and its jurisdiction over Admiralty droits are obvious illustrations. 11 Again, its work in the sphere of international law and politics is, as we have seen, important rather in the history of the origins of international law than in the history of the origins of our commercial and maritime law.12 It is to its civil jurisdiction that we must look for the development of these two latter branches of the law. But, for the medieval period, the records of its work in this sphere are scanty. The continuous series of Admiralty records does not 128 Henry VIII. c. 15; vol. i 550-551; vol. iv 260; it may be noted that a similar change from common law to civil law procedure took place in the court of the Constable and Marshal, Harcourt, His Grace the Steward and Trial of Peers 362-366; for this court see vol. i 573-580. 2 Select Pleas of the Admiralty (S.S.) i passim. 3 Black Book (R.S.) i 246-275. 5 Ibid 281-344. Ibid 347-394. 8 Ibid 412-414. 9 Ibid 414-419; vol. ii 473. 4 Ibid 276-279. 7 Ibid 397-411. 10 Black Book (R.S.) i 421 472. 12 Above 47-48. |