INTRODUCTION.

The beginning of the jurisdiction of the High Court of Admiralty in England dates from an early period in English history. It is now impossible to fix the precise time when that jurisdiction began, and when it was first exercised. The opinions of those deeply read in the history and antiquity of our laws are far from agreement upon this point. A short dissertation, therefore, upon the early history of Admiralty jurisdiction may, by some readers, be considered at best but useless speculation-incapable of accomplishing any beneficial purpose—and of no practical utility to the busy practitioner. The statement, however, is ventured that it is by no means unscientific to study jurisprudence historically as well as practically. It is both wise and proper to trace the rise, growth and latest development of every branch of law through its period of early usage, legislation and judicial decision. Such were the views of that great French jurist, Emerigon, who, when discussing one branch of early maritime law, wrote that "Researches into the antiquities of this legislation will not appear useless to those persons who may have remarked that these ancient doctrines, of which many are no longer in use, are nevertheless the foundations of others which are in vigor in the present day, and which it is consequently difficult to comprehend thoroughly without having reference to the ancient doctrines." The learned reader well knows that those pursuing this method of investigation soon discover that principles of law and rules of decision, supposed to be of modern origin, were familiar, and fully recognized in the legal codes of ancient States. These remarks are especially applicable to the laws of maritime nations. The ancient maritime codes or sea laws have come down to the present day, and may be found among the marine laws of modern times. These codes were compiled and adopted from time to time by ancient States to foster and extend their foreign sea-borne commerce. While there was not in those early times that facility of transit and commercial interdependence so prominent at the present day, yet there was in many particulars a similarity between the sea laws of the South and North of Europe. This has been well stated by Sir Travers Twiss (1) when he says: "The usages of maritime commerce, although

(1) Black Book Ad. vol. 3, lxxx.

they have been reduced into writing at very different epochs in different countries, exhibit a striking identity of character, which contrasts singularly with the great diversity, which is to be observed in the civil institutions of these countries. Two principal causes may have operated to bring about this result. In the first place the circumstances which gave rise to these usages were nearly identical in every country, and it was the interest of each country to be just in such matters, in order to secure reciprocity for its merchants and mariners in other countries. In the second place, at the time when the enterprises of the Italian Republics in the South and of the Hanse Confederation in the North were indirectly co-operating to bring about a great commercial revolution in Europe, merchants and mariners were left at liberty to set laws to themselves, and the usages of one locality were readily adopted by another, as soon as the superior convenience and equity of them were recognized. This result was greatly facilitated by a wise provision of the Visigothic code, which was received in Spain and in the South of France, under which merchants from beyond the sea were allowed to have their disputes settled by their own judges according to their own laws. On the other hand, the maritime usages of Southern Europe commended themselves at once to the acceptance of Northern Europe by their intrinsic convenience and equity, the more readily as the adoption of them was calculated to induce the merchants and mariners of the South to frequent the ports of the North." The contention has been put forth, but unsuccessfully, that there never was a system of maritime law generally observed by the peoples of ancient maritime States. The little island of Rhodes, southwest of Asia Minor, and southeast from Athens, must ever be an object of interest to the student of ancient sea laws. Her people became famous for the extent and richness of her commerce, and the boldness of her navigators; but they acquired higher fame and became more illustrious by reason of being the founders of a system of marine jurisprudence to which even the Romans paid a profound deference and respect. The Rhodian laws among the ancient sea codes were foremost in antiquity and authority. When these laws were compiled it is difficult now to state, but writers assume it was when the Rhodians first obtained the sovereignty of the sea, which was more than nine hundred years before the Christian era. Cicero, in his oration on the Manilian law, refers to this compilation, not only as well known in his time, but as having attracted the admiration of the world. The best authorities are agreed that the compilation has been wholly lost, but many of the principles embodied therein have

come down to us through the medium of the Roman law. According to Selden, this code was incorporated into the Roman law in the time of Tiberius Claudius, and Azuni declares it to be "the fountain of maritime jurisprudence." It is doubtful if these laws were followed in the Roman Courts during the time of the Republic, but there can be no doubt as to their authority under the Empire. Augustus declared them to be a part of the law of the Empire, and in this he was followed by Antoninus Pius. The answer of the last named Emperor to an application for his decision upon a case referred to him was as follows: "The earth is subject to my dominion; the sea to that of the law. Let the case be determined by the Rhodian law on naval affairs, the provisions of which I direct to be observed in future in all cases where they are not repugnant to the laws of Rome. The same decision was formerly made by the divine Augustus." Chancellor Kent is authority for the statement that "the Romans never digested any general code of maritime regulations, notwithstanding they were pre-eminently distinguished for the cultivation, method and system which they gave to their municipal laws. They seem to have been contented to adopt as their own the regulations of the Republic of Rhodes. The genius of the Roman government was military, not commercial." The law of jettison can be directly traced to the Rhodian code. Lege Rhodia cavetur, ut, si levandæ navis gratia, jactus mercium factus est, omnium contributione sarciatur, quod pro omnibus datum est. There can be no doubt but that the nations bordering on the Mediterranean at a very early period had adopted these laws, modified, no doubt, in many cases, to suit the changing growth and development of commerce and civilization. From these latter sprang the law merchant and customs of the sea; and hence arose, by the middle of the thirteenth century, written codes of maritime laws, such as the Consolato del Mare, embodying the customs prevalent at Barcelona; the laws of Oleron, being the usages of Bordeaux and the Isle of Oleron; the laws of Wisbuy, followed by the countries of Northern Europe, especially the Hanse towns. It is not necessary in this connection to notice the many discussions as to the age and authority of these different codes, and many others which readily occur to the mind of the reader. There has been much discussion as to whether the laws of Oleron or Wisbuy was the more ancient code, but the best opinion at the present time concedes that distinction to the Rolls of Oleron.

Park says these laws "are in substance but an abstract of the old Rhodian laws, with some additions and alterations accommodated

to the practice of that age and the customs of the western nations," and that they were proposed as a "common standard and measure for the more equal distribution of justice amongst the people of different governments. These excellent regulations were so much esteemed that they have been the model on which all modern sea laws have been founded."

They were published about A. D. 1150 by Eleanor, the mother of Richard I. of England, and with additions possibly of that monarch adopted into that country. Hallam ridicules the statement, at one time industriously circulated, that these laws were collected and declared by Richard I. at Oleron on his return from the Holy Land. The fact is now well established that Richard did not visit the island of Oleron on his way home, and a late writer (1) suggests that all that is meant by the roll entitled "Fasciculus de superioritate maris," is that King Richard adopted and sanctioned these laws as rules proper to be observed in England. It is important in this connection to know that, by common consent, these laws are admitted to be the foundation of all the European maritime codes.

They were adopted in England at a very early period, the precise time it is now impossible to state, and were incorporated into our ancient sea laws as found in the Black Books of the Admiralty. This work was compiled for the use of the Lord High Admiral and his deputy, who presided as judge in the Court of Admiralty. When Sir Travers Twiss issued volume one of his edition of the Black Book in 1871, the original work was missing, and could not be found. An inquiry at the registry so long back as 1808 was met by the answer that the officials "had never seen such a book and knew nothing of it." By some, Selden's MS. in the Bodleian library at Oxford, was supposed to be the original Black Book, but controversies on this point were set at rest by the accidental finding of the original book at the bottom of a chest in the cellar of the Admiralty registry. This was prior to the publication of volume three of the work by Sir Travers Twiss in 1873. The result of an examination of the original by Twiss satisfied him that no part of the writing of the Black Book was of a period earlier than the reign of Henry VI. (A. D. 1422). But it also disclosed satisfactory proof that it contains ordinances purporting to be made in the reigns of Henry I., Richard I., King John, and Edward I., respectively. In the two MSS. now in the archives of the Guildhall of the City of London, and in other

(1) Twiss.