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,8 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. 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. 8 Ibid 221-243; ̧ But the delays 1 Vol. i 79, 269; vol. iv 142-144, and App. I. (2). 2 Black Book (R.S.) i 133-177. "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. 4 Black Book (R.S.) i 88-129; above 123-125. "Ibid 178-219. 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. 11; vol. i 548-549. 10 R.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,2 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. 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." 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, 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." 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 mediæval 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. "Ibid 281-344. 8 Ibid 412-414. 6 Ibid 347-394. Ibid 414-419; vol. ii 473. 11 For these matters see vol. i 550-552, 559-561. 4 Ibid 276-279. 10 Black Book (R.S.) i 421 472. 12 Above 47-48. 2 begin till 1524.1 But it is clear from the statutes of Richard II. and Henry IV.'s reigns, from the inquiries made at the Admiralty inquests, and from two early cases of 1390 and 13895 printed by Mr. Marsden, that the Admiralty, in addition to cases directly connected with shipping, was already in possession of a jurisdiction over commercial contracts entered into abroad; and that the expansion of this jurisdiction had already begun to arouse the jealousy of the common lawyers. The reasons why the court of Admiralty was assuming this jurisdiction are obvious. In the first place, the connection between the cases which arise in connection with merchant shipping and those which arise out of foreign trade must always be close. In the second place, the common law rules as to venue prevented the common law courts from assuming jurisdiction over such cases. In the third place, the civil law procedure of the Admiralty, because it was based on the technical ideas of the civil law, was far more intelligible to the foreign merchant than the procedure of the common law courts. We shall see that in the sixteenth century, when the foreign trade of the country began to expand, these causes operated even more strongly ;7 and that the court of Admiralty became a valuable ally to the Council when these commercial cases came before it.8 But even in this mediæval period there were signs that the court of Admiralty would not be permitted to get a monopoly of this kind of business without a struggle. We have seen that the common law courts were beginning to think of making changes in their procedural rules with a view to attracting some of it to themselves. At the same time the Chancellor was also claiming some share, and could offer the advantage of a procedure which, in some respects, was better adapted to the needs of the merchants than that of the Admiralty or the common law.10 At 2 Vol. i 548-549; above 126. 1 Below 137. Rules about matters which belong to the Admiralty, Black Book (R.S.) i 69— Lords of franchises are not, according to an ordinance made by Edward 1. at Hastings, to try any question of a ship's obligations unless the sum at issue only amounts to 20s. or 40s.; also "any contract made between merchant and merchant, or merchant or marriner beyond the sea, or within the fflood marke, shal be tryed before the admirall and noe where else, by the ordinance of the said king Edward and his lords"; cf. ibid 163-inquiry to be made as to those who sue at common law when they ought to sue in the Admiralty, and as to judges who usurp Admiralty jurisdiction; ibid 236-a similar inquiry in Master Rowghton's articles; in 14011403 a fine was inflicted for this offence by the Admiralty court of the Cinque Ports, Select Pleas of the Admiralty (S.S.) ii lx. 4 Sampson v. Curteys, Select Pleas of the Admiralty (S.S.) i 1-17-an action for trespass to goods, one of the defences to which was seizure by order from the Admiral. 5 Gernesy v. Henton, ibid 17-26-an action for conversion of money, money due for freight, and money due for salt and herrings bought. 6 Above 117-119. 8 Below 136. 10 Above 116-117; below 139-140. 7 Below 134, 137-139. 9 Above 118-119. the close of the mediæval period, therefore, it was clear that many courts were preparing to put forward claims to exercise jurisdiction over the new legal business which an expanding foreign trade was bringing to English lawyers. All of these courts helped, as we shall now see, to develop our modern commercial and maritime law. (2) The reception of the foreign doctrines of commercial and maritime law. The needs of the merchants made this reception absolutely necessary. Naturally their usages and practices were the main sources from which these new rules were derived. But, since on the Continent these usages and practices had been developed in the technical atmosphere of the civil law, some of the doctrines of the civilians of the fourteenth and fifteenth centuries, applicable to commercial and maritime questions, were also introduced. I shall, in the first place, say something of the manner in which these two sets of influences made themselves felt in England; and, in the second place, of the agencies by means of which the new legal rules and doctrines, which these influences inspired, were incorporated into English law. (i) Sources. We have seen that, on the Continent, the usages and practices of merchants, administered in courts presided over by merchants, were the main foundation of the commercial and maritime law; 1 and that, in England, the mediaval Law Merchant was based upon a similar foundation. We have seen too that England based its maritime law upon the laws of Oleron-just as the other sea-port towns which bordered upon the Mediterranean, the Atlantic ocean, the English Channel, or the North Sea based their law upon similar codes of maritime usage. All through the sixteenth century these continued to be the principal bases of the Law Merchant in England. The records of the court of 2 Above 104-112. 1 Above 93-96. 3" All maritime affairs are regulated chiefly by the imperial laws, the Rhodian laws, the laws of Oleron, or by certain peculiar municipal laws and constitutions appropriated to certain cities, towns and countries bordering on the sea within or without the Mediterranean, calculated for their proper meridian; or by those maritime customs and prescriptions or perpetual rights which are between merchants and mariners, each with other, or each among themselves," Godolphin, A View of the Admiral Jurisdiction 40. *Welwod (ed. 1613) An Abridgement of all Sea Laws Title V—“ The debates of seafarers, and seafaring actions, should be decided according to the received laws and statutes of the sea: which failing, then the customs and consuetudes of these are to be followed. . . . And if neither law written nor unwritten custom nor consuetude occurs... the last refuge is to the opinions and sentences of skilled and upright men in the profession and exercise of seafaring; because it is old and common that the judgment of skilled and well practised men should be followed in their own trade and calling." VOL. V.-9 Admiralty sometimes refer specifically to the usages of merchants 1 or of mariners or to the laws of Oleron; 3 and charter parties generally contained a similar specific reference to these laws.* Then, too, the merchants were given many opportunities to shape these usages by applying them to the facts of particular cases. In the numerous mercantile and maritime cases which came before the Council there is usually a direction that they were to be settled by arbitration; and among the arbitrators there were usually merchants. 5 The same records show us that the whole law and practice of insurance originated in the first instance from the merchants themselves; and often the governing bodies of the various companies, which had the monopoly of foreign trade to different parts of the world, were given a large power to settle differences arising among their members. In England, as in the Italian cities it was this kind of domestic tribunal which was the most satisfactory to the merchants themselves. The long discussions of the lawyers-whether they were civilians or common lawyers-wasted time, and often hindered the doing of substantial justice." That the usages and practice of the merchants themselves were the main source of the law is clear from the literature on the subject. If we except the controversial literature upon the sovereignty of the British Seas,10 and upon the jurisdiction of the court of Admiralty 11 we find that nothing was written during this period by the common lawyers, and very little by civilians. We 1 Select Pleas of the Admiralty (S.S.) i 98, as to the transfer of a ship or cargo beyond the sea or at sea; ibid i 110-a usage that merchants in Spain appoint their factors by public instrument, and that their authority can only be revoked by a similar instrument; ii 142—as to payment of freight when a cargo of wine is lost by bad weather. 2 Ibid i 98-last note; ibid 44-a custom of merchants and mariners that shipowners, etc., are not liable for goods not entered in the "boke of ladyng." 3 Ibid i 82; ii 122. 4 Malynes, op. cit. 98. See e.g. Dasent ii 377 (1549-1550)-two English and two foreign merchants to arbitrate as to freight payable. xiii 343 (1581)—owing to the delays of the Admiralty a case is sent to arbitration; xiv 24-25 (1586) partnership accounts; xviii 72 (1589)— merchants are to hear summarily a case turning on questions of freight and average; ibid 26-a similar tribunal is to hear a case of account; xxiv 109 (1592-1593)— partnership accounts. Below 139; Pt. II. c. 4 III. 7 Vol. iv 320; below 149-150; Dasent xii 207 (1585)—a rebuke to the judge of the courts of common law who interfere with the government of these corporations of merchants by removing cases into their courts. 8 Above 68-71. 9 Dasent xxiii 33 (1592)—a distinction is drawn between a judicial hearing by the judge of the Admiralty and a hearing before himself as arbitrator-the latter was clearly regarded as much less lengthy and expensive than the former. 10 Above 10-II. 11 Above 12; Coke, Fourth Instit. c. 22; Prynne, Animadversions 75-133; Zouche, The Jurisdiction of the Admiralty of England Asserted; Godolphin, A View of the Admiral Jurisdiction; Ridley, A View of the Civile and Ecclesiasticall Law 172-180. |