Page images
PDF
EPUB

rate, as the first English use of the word, though it occurs at an earlier period in connection with the French possessions of the English kings. In a Vascon Roll of Edward I., in 1295, “Berardo de Sestars (or de Sestas) is appointed Admiral of the Baion fleet-'Admirallum Maritime Baion et capitaneum nautarum et marinariorum nostrorum in ejusdem villa." The following year De Sestas is again mentioned with the same title, whilst in another Vascon Roll of the same year, William de Leyburn and John de Butetort are described as “ Amiraux de nostre navire D'engleterre.”

Mr. Marsden is therefore obviously right when he says that " the word 'admiral' came by way of Gascony to England," but whether it came in the first place from the east or from Genoa, as he suggests, does not seem so clear. It is sufficient for English historical purposes that we find at the beginning of the fourteenth century a maritime leader who bears the title and, as such, is the deputy of the king and is the captain and judge of the fleet.

The question, however, suggests itself, Why should the leader of a naval squadron be the judge of matters which concern private individuals? why should he exercise functions wholly different from those of a naval commander responsible only for the good conduct of his fleet?

We have grown so accustomed to the fact that the High Court of Admiralty was originally the Court of the Lord High Admiral of England, that one feels almost surprised when such a question suggests itself. But a moment's reflection will show that without some sound historical explanation it is not easy to answer it satisfactorily. The admiral of a fleet is not a lawyer—he is a naval commander; he is not to be found in one place; on the contrary, his duties would naturally take him to sea. He is not, for example, as was the Lord Warden of the Cinque Ports, a high local official within his jurisdiction supreme, who would give judgment upon every matter on which he could lay his hands, criminal

or civil, maritime or municipal. Judicial fictions, which have so often taken the place of historical knowledge, will not give the required explanation; we must seek for it in facts.

At present, however, we are a long way from anything in the nature of a regular court of law, or even from a jurisdiction other than one merely disciplinary over the sailors of the fleet; it is in the first instance therefore necessary to understand to some extent the state of affairs on the seas around England in the fourteenth century.

The burning question of the day was that of piracy: the seamen of England preyed upon the ships of France, and the seamen of France seized the merchandise and the ships of Englishmen. The business was of the simplest kind : a ship which was larger than another could seize it and carry off spoil, or a ship in distress could be boarded and robbed. Nor were the so-called pirates particular about nationalities. Englishmen were not above taking advantage of the distress of their own countrymen, or of their continental allies.

But we must not be led away by the popular modern idea of the word "piracy;" we must not imagine an organized body of men sailing in a particular ship with their hand against every man and every man's hand against them. What we see is, in truth, society in an elementary state, in a particular region of the world ; that is to say, law had not yet extended from the land to the sea : the idea of property, of anything in the nature of international comity, stopped at the seashore, and the right to property on the seas was vested in the strong man. Throughout the latter half of the thirteenth and the first half of the fourteenth century, there is conspicuously visible the struggle between barbarism and civilization on the seas, a conflict between lawlessness and law, and attempts, weak and ineffectual but constant, to protect private property on the seas. As the result, we see the formation of a maritime court.

[ocr errors]

These attempts were very varied. In some instances the sovereign, at the request of private and injured persons, intervened primarily, in which case the question was referred to the chancellor, or some judges, or he acted directly as the actual judge. Thus, in 1294, "a case of spoil was tried

coram ipso domino rege-coram domino rege et concilio suo'” (I. xvii.). In other instances, the ordinary tribunals of the country were invoked for the purpose of bringing justice to bear on those who had seized property at sea. “The Assize and Coram Rege Rolls furnish many instances of trials, both criminal and civil, of pirates and spoilers, according to the common law. . . . Sometimes the whole matter was disposed of by the chancellor, and sometimes issues as to piracy or no piracy, and as to the ownership of property and ships spoiled, were directed out of chancery to the King's Bench, or to commissioners of Oyer and Terminer. Such issues, returnable into Chancery, were tried by juries taken from the county to which the spoil was committed, or from the county to which the spoiled property was brought or the spoilers came, and the juries were sometimes of good and lawful men and sometimes merchants and mariners. The Commissioners directed the trial to be either 'secundem legem et consuetudinem regni Angliæ,' or 'secundem legem mercatoriam' or 'maritimam.' The granting of letters of reprisal and marque was also within the jurisdiction of the chancellor” (I. xvi.).

It is clear, however, that while appeals, whether to the King or the chancellor, bore witness to the existence of a legal system, however slight, the practical strength of the law was unworthy of notice. Throughout the first half of the fourteenth century piracy flourished, and the law when it was invoked was, in most cases, powerless. An instance of this. may be seen from an occurrence in the year 1339. Some Englishmen had committed piracy on goods belonging to Spanish, Portuguese, and Catalan merchants in Southampton

Water. We can only surmise that the goods of these merchants were there in vessels ready to be landed. A commission was, at any rate, issued to three gentlemen, probably of the locality, to inquire into the matter, commanding them to seize the spoiled goods and restore them to their owners.

The names of the spoilers were ascertained with the goods that had come into their hands. But the record relates that as to the pirates there was a return of "non sunt inventi," and, adds the editor, with some grim humour, “it does not appear that the plaintiff received anything.” The king, the chancellor, the judges, and every one else, were, in fact, powerless. It was impossible, in other words, for legal sentences to be enforced at sea. Piratical persons, however well known, had only to go to sea to escape from legal punishment.

Side by side with the demands of private individuals for redress we find also more important public and, as they may be called in modern phraseology, diplomatic expostulations. There was nothing to choose, however, between the French and English pirates, and the complaints of the sovereigns of the two countries are mutual. “In 1321, and again in 1323, Edward II. complains to the King of France of the capture of an English ship by one Berengarius Blanchus, guardian or admiral of certain ships—custos seu admirallus quarundam navium' of Louis, late King of France, and of the denial of justice by France” (I. xxiii.). Against this complaint may be set a complaint by the King of Arragon in 1324. It is the more noticeable since it shows us the perfect willingness of Edward II. to give redress and, at the same time, a certain respect for law in England, which may, perhaps, have been an actual difficulty in the way of the prevention of piracy. “Edward II., in answer to complaints made by the King of Arragon of delay in obtaining justice in the matter of piracy, says that the merchant who was spoiled, one Peter Jacobus, had failed to give the names of the spoilers, and that although

he has appointed justices to try the case, it is still undecided by reason of difficulties which have intervened, and that the law of England does not allow any one to be condemned for a crime unless he is convicted of it. He refused to adopt the practice of Spain, which was that reprisals by way of arrest were granted upon proof in the Spanish courts of the spoil complained of” (I. xxv.). In some instances, however, the spoiled merchant obtained more solid satisfaction, since from time to time the English sovereign appears to have paid for losses out of his own purse. “In 1350 he had paid £152 to the Bardi for the spoil of a cargo of wool in a ship sailing from Southampton to Flanders ; and in 1336 he had compromised another claim of Genoese merchants by a like payment out of grace” (I. xxviii.).

Piracy, therefore, in the middle of the fourteenth century was one of the most important questions of the time; it affected merchants and shipowners of every maritime country; it was a constant cause of annoyance and of expense to the sovereign himself. An increase of civilization and of wealth in England and the Low Countries, in France, and on the shores of the Bay of Biscay, only made the impotence of the law on the high seas more keenly felt. It is an instance of how the growth of law is influenced by and reflects the progress of the people. Without commerce there is no prey for pirates, and the increasing outcry for a stronger maritime law shows how important has become the commercial transmarine intercourse of England and Europe.

A marked change, however, occurs in the middle of the fourteenth century, another instance of the influence of sea power on history. In 1340 was fought the battle of Sluys, a factor as determining as the Nile or Trafalgar. It made the English monarch sovereign of the narrow seas, king not only of England, but also of the sea. "Touz les pays tenoient et appelloient nostre avan dit seigneur le Roi de la mier," such are the terms of a petition to Parliament in 1372, when

« PreviousContinue »