of Admiral. owned in part by an enemy and in part by a neutral. When movable property is found in the territory of an enemy, the locus in quo determines the right of a belligerent to take possession of it, for everything which is in the territory of an enemy is primâ facie appurtenant to his territory, Quicquid est in territorio est de territorio; but as the open Sea cannot become the territory of any Nation, no similar rule can determine the right of a belligerent to take possession of a ship or its cargo on the open Sea, and the ownership of the property thus becomes the test of its liability to make good the damages and expenses of the belligerent, and of his right to take possession of it. § 74. If we go back to the early Laws of the The office Sea, we find the juridical distinction taken between armed vessels and merchant vessels. An armed ship might be simply navigating the high sea or cruising (en course). If an armed ship was cruising, she was engaged in making reprisals or in making war, the expression originally made use of in Letters of Marque being the same as in the ancient formulary of declaring war, which enjoins all subjects courir sus à l'ennemi. But this expression was borrowed from an earlier state of things, when the police of the High Seas was maintained by voluntary associations amongst merchants. In the state of wild anarchy, to which the navigation of the High Seas was subject after the breaking up of the Roman Empire, when the Norman sea-rovers infested the North Sea and the Baltic, and the Saracens and Greeks covered the Mediterranean Sea with piratical vessels, every merchant ship navigating the High Seas with a valuable cargo was liable to pillage. It was in vain for the plundered trader to prefer his complaint to the Sovereign of the country, from which the piratical vessel had been fitted out; the Sovereign was either too feeble to do justice upon the criminals, or was conniving at their crimes. Merchants accordingly were obliged to associate themselves together for mutual protection; and their vessels sailed forth in fleets, of which a chief was elected, called the Admiral. The rule of these Associations was in the first place mutual defence, and secondly joint participation in all prize, which might be made in the conduct of such mutual defence. Every vessel of a fleet was bound to obey the Admiral, not merely as a leader in battle, but as a judge in dividing the prize made from the enemy; and the usages of such Associations in their expeditions against pirates, for they fitted out at times fleets of armed vessels expressly to cruise after pirates (per la guerra del corso), came by degrees to be the usages of Nations in their warfare on the High Seas. Such a result seems to have been brought about in this manner. Independent Princes were fain to enlist into their service the armed fleets of these voluntary Associations, when the occasion presented itself of attacking an enemy by sea, or the necessity arose of defending themselves against any attack by sea. Thus there was a mercantile Association at Pisa, called the Umili, which was constituted after the likeness of an independent State3, waging war and making conquests with a military marine of its own. It lent its powerful aid to the Princes of Austria in A.D. 1188, and obtained from them in return special privileges for the Company. But in enlisting the 3 The British East India Company was a striking instance in modern times of a voluntary association of merchants exercising, amongst other attributes of an independent State, the right of making war and peace. 4 Muratori Antiq. Ital. Medii Evi, Tom. II. col. 910 et seq. Pardessus, Tom. II. Introduction, p. 127. Jurisdic tion of services of the armed fleets of this and other Merchant-Associations, Sovereign Princes found it both necessary and expedient to allow them to observe the rules to which they had been accustomed to conform themselves, in the conduct of their own maritime expeditions, more particularly as those rules were based for the most part upon principles of Natural Right; and thus the sanction of Nations as such, was given by degrees to the maritime usages of these Merchant-Associations, and so they became the Customary Law of the Sea. $75. The necessity for these voluntary Associations of merchants continuing to maintain the police of the High Seas by armed fleets, equipped at their own cost, and subject to an Admiralty jurisdiction Admiralty of their own, ceased by degrees, according as Sovereign Princes took upon themselves the duty of Nations. exercising a Supreme Admiralty jurisdiction, which in the course of the thirteenth century came to be considered amongst the leading States of Europe to be a Prerogative of Sovereign Power. In the fourteenth century we find a custom growing up for Sovereign Princes to restrain their Subjects from doing justice to themselves on the High Seas, unless there should have been previously granted to them Letters of Marque and Reprisal; and in the fifteenth century it may be said to have become established Law, as between Nations, that an armed cruiser should be furnished with Letters of Marque or with Letters Patent under the seal of a Sovereign Prince in the nature of a Commission, in order that it should be entitled of Right to make Reprisals or War. The terms upon which these Letters of Reprisal and Commissions to make War were grantable, required, that whatever was taken by an armed cruiser should be brought to open judgment in the Admiral-Court, and thus the Admiral-Court came to be an International Court of Prize, and the rules which had been adopted for the regulation of maritime warfare, whilst it was carried on by the voluntary Associations of merchants under the control of an Elective Admiral, came to be the rules of maritime warfare between Nations and the Law which the High Courts of Admiralty administered in questions of Prize taken upon the High Seas. The process of these Courts was framed after the best models which the Roman Law afforded; and the regulations for prize pro- Order of ceedings of the fifteenth century are identical with ceedings. the practice of the present time. The observance of one uniform system amongst Nations was confirmed by treaties, the articles of which were of a declaratory character; and amongst these the Treaty of Boulogne, concluded between Charles VIII of France and Henry VII of England, on 24 May 1497, is most deserving of notice, as being a complete exposition of the prize proceedings of those times®. prize pro the Sea. 76. One of the earliest collections of the Cus- Customs of toms of the Sea is the Consolato del Mare, which owes its origin most probably to the same cause which led to the compilation of the Rooles or Jugemens d'Oleron, the groundwork of the Black Book of the Admiralty. The institution of special Judges or Arbitrators to decide upon questions of Right between mariners and merchants gave rise to decisions upon controverted questions, a record of which became necessary to guide the Judges them 5 Robinson, Collectanea Maritima, p. 83. Dumont, Traités Tom. III. Part I. p. 376. 6 The tenth article of this treaty provides that the Muni PART II. cipal Courts shall be restrained L d'Oleron. 8 selves, as well as to supply to the merchants and shipowners a knowledge of their respective rights The Rooles and obligations. The Rooles d'Oleron', the earliest portion of which has with good reason been assigned to the latter part of the thirteenth century, may be regarded as the basis of the Maritime Law of Western Europe. There is not found in this compilation any reference to the Customs of the Sea in time of war; but in the Consolato del Mare, which was probably compiled in the latter part of the fourteenth century, there are several chapters treating of questions between the armed vessels of belligerents and the trading vessels of neutrals, as well as of questions between the owners of ships and the owners of cargoes incidental to the exercise of the rights of war by belligerents on the high sea. The Con- The Consolato del Mare seems with great probability to have been first published at Barcelona, the chief seat of the maritime tribunals of Catalonia; and we may account for the introduction into this work of various chapters on questions appertaining to maritime warfare by the twofold consideration, first, that the system of maintaining the peace of the Seas against pirates by voluntary Associations of merchants was first developed effectively in the maritime cities on the shores of the Mediterranean; and secondly, solato del Mare, 7 M. Pardessus considers the articles forming the first series of the Rooles d'Oleron to be of an earlier origin than A.D. 1266, inasmuch as in that year Alphonso X of Castile caused them to be inserted under the title of El Fuero de Layron in the fifth part of the Collection of Laws, known as Las Siete Partidas. Pardessus, Lois Maritimes, Tom. I. p. 301. Mr. Hallam on the other hand considers the Rooles d'Oleron to have been chiefly borrowed from the Consolato, and to have been compiled in France under the reign of Louis IX. Hallam's Middle Ages, c. 9. Part II. 8 C. 221. [276.] Du navire chargé de marchandises pris par navire armé. C. 243. [288.] Du cas où un navire marchand est rencontré par un navire d'ennemis. C. 245. [290] Du navire pris et recouvré. |