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Sea Laws

SEA LAWS, a title which came into use amongst writers on maritime law in the 16th century, and was applied by them to certain mediaeval collections of usages of the sea which had been recognized as having the force of customary law, either by the judgments of a maritime court or by the resolutions of a congress of merchants and shipmasters. To the former class belong the sea laws of Oleron, which embody the usages of the mariners of the Atlantic; under the latter come the sea laws of Wisby, which reflect the customs of the mariners of the North Sea and of the Baltic.

The earliest collection of such usages which was received in England is described in the Black Book of the Admiralty as the " Laws of Oleron," whilst the earliest known text is contained in the Liber Memorandorum of the corporation of the City of London, preserved in the archives of their Guildhall. These laws are in an early handwriting of the 14th century, and the title prefixed to them is La Gharte d'Oleroun des Juggementz de la Mier. How and in what manner these "Judgments of the Sea" came to be collected is not altogether certain. Cleirac, a learned advocate in the parliament of Bordeaux, in the introduction to his work on Les Us et Coustumes de la Mer, first printed at Bordeaux in 1647, states that Eleanor, duchess of Guienne (the consort of Louis VII. of France, but subsequently divorced from him and married to Henry II. of England), having observed during her visit to the Holy Land, in company with Louis, that the collection of customs of the sea contained in The Booh of the Consulate of the Sea (see vol. vi. p. 317) was held in high repute in the Levant, directed on her return that a record should be made of the judgments of the maritime court of the island of Oleron (at that time a peculiar court of the duchy of Guienne), in order that they might serve as law amongst the mariners of the Western Sea. He states further that Richard I. of England, on his return from the Holy Land, brought back with him a roll of those judgments, which he published in England and ordained to be observed as law. It is probable that the general outline of Cleirac's account is correct, as it accords with a memorandum on the famous roll of 12 Edw. III., "De Superioritate Maris Angliae," which, having been for many years carefully preserved in the archives of the Tower of London, is now. deposited in the Public Record Office. According to this memorandum, the king's justiciaries were instructed to declare and uphold the laws and statutes made by the kings of England, in order to maintain peace and justice amongst the people of every nation passing through the sea of England: " Quae quidem leges et statuta per dominum Ricardum, quondam regem Angliae, in reditu suo a Terra Sancta correcta fuerunt, interpretata, declarata, et in Insula Oleron publicata, et nominata in Gallica lingua La Leye Olyroun."

The earliest version of these Oleron sea laws, which, according to the memorandum above mentioned, were received in England in the latter part of the 12th century, comprised certain customs of the sea which were observed in the wine and the oil trade, as carried on between the ports of Guienne and those of Brittany, Normandy, Eng-land, and Flanders. No English translation seems to have been made before the Butter of the Sea, printed in London by Thomas Petyt in 1536, in which they are styled "the Lawes of ye Yle of Auleron and ye Judgementes of ye See." French was, in fact, a tongue familiar to the English High Court of Admiralty down to the reign of Henry VI. A Flemish text, however, appears to have been made in the latter part of the 14th century, the Purple Boole of Bruges, preserved in the archives of Bruges, in a handwriting somewhat later than that of the Liber Memorandorum. Prefixed to this Flemish version is the title, " Dit es de Coppie van den Rollen van Oleron van den Vonnesse van der Zee." Certain changes, however, have been made in the Purple Booh of Bruges in the names of the ports mentioned in the original Gascon text. For instance, Sluys is in several places substituted for Bordeaux, just as in the Putter of the Sea London replaces Bordeaux. That these sea laws were administered in the Flemish maritime courts may be inferred from two facts. First, a Flemish translation of them was made for the use of the maritime tribunal of Damme, which was the chief Flemish entrepot of the wine trade in the 13th century. The text of this translation has been published by Adriaen Verwer under the title of the Judgments of Damme. In the second place, there is preserved in the archives of the senate of Dantzic, where there was a maritime court of old, famous for the equity of its judgments, an early manuscript of the 15th century, which contains a Flemish reproduction of the Judgments of Oleron headed " Dit is Twater Becht in Vlaenderen." So far there can be no doubt that the Judgments of Oleron were received as sea laws in Flanders as well as in England in the 14th century. Further inquiry enables us to trace them as they followed the course of the wine trade in the North Sea and the Baltic Sea. Boxhorn, in his Chronyh van Zeelande, has published a Dutch version of them, which Van Leeuwen has repro-duced in his Batavia Illustrata, under the title of the Laws of West-Capell in Zealand. Verwer has also pub-lished a Dutch text of them in his Kederlanis See-Rechten, accompanied by certain customs of Amsterdam, of which other MSS. exist, in which those customs are described as usages of Stavoren, or as usages of Enkhuizen, both ports of active commerce in the 15th century. Of these customs of Amsterdam, or, as they were more generally styled, " Ordinances of Amsterdam," further mention is made below.

A new and enlarged collection of sea laws, purporting to be an extract of the ancient laws of Oleron, made its appearance in the latter part of the 15th century in Le Grant Routier de la Mer, printed at Poitiers in France by Jan de Marnef, at the sign of the Pelican. The title-page is without a date, but the dedication, which purports to be addressed by its author Pierre Garcie alias Ferrande to his godson, is dated from St Gilles on the last day of May 1483. It contains forty-seven articles, of which the first twenty-two are identical with articles of the " Judg-ments of the Sea," in the Liber Memorandorum, the re-maining articles being evidently of more recent origin. A black-letter edition of this work in French, without a date, is preserved in the Bodleian Library at Oxford, and to the last article this colophon is appended: " Ces choses pre-cedentes sont extraictes du tres utille et profittable Eoolle Doloyron par le diet Pierre Garcie alias Ferrande." An English translation is printed in the appendix to A View of the Admiral Jurisdiction, published in 1661 by Dr John Godolphin, in which the laws are described as "an Extract of the Ancient Laws of Oleron rendered into English out of Garsias alias Ferrand." Although this new text had the recommendation of an advocate who had filled the office of judge of the Admiralty Court during the Commonwealth and been appointed king's advocate-general by Charles II., it seems to have been superseded in a short time by Cleirac's Us et Coustumes de la Mer, to which was appended the following clause of authentication: " Tesmoin le Seel de ITsle d'Oleron, estably aux contracts de la dite Isle, le jour du Mardy apres la Feste Sainct Andre l'an mille deux cens soixant-six." Cleirac does not inform us from what source or under what circumstances he procured his text, nor on what authority he has adopted in certain articles readings at variance with those of Garcie, whilst he retains the same number of articles, to wit, forty-seven. The clause of authentication cannot be accepted as a warranty above suspicion, as the identical clause of authentication with the same date is appended to the early Norman and Breton versions of the rolls, which contain only twenty-six articles. Cleirac's version, however, owing probably to the superior style in which it was edited, and to the importance of the other treatises on maritime matters which Cleirac had brought together for the first time in a single volume, seems to have obtained a preference in England over Garcie's text, as it was received in the High Court of Admiralty during the judgeship of Sir Leoline Jenkyns, and an English translation of it was introduced into the English translation of the Black Booh of the Admiralty made by John Bedford, the deputy registrar of the High Court, and dedicated to Sir Leoline Jenkyns. It seems to have been Bedford's intention to print this translation under the title of " Sea Laws " ; but the manu-script passed into the hands of Sir Leoline Jenkyns, who gave it to the College of Advocates in 1685. The Blach Book itself, which was missing for a long time from the Admiralty registry, has recently been discovered and has been replaced in the archives of the Admiralty Court. Of these two versions of the sea laws of Oleron the earlier obtained a wide-world reception, for it was translated into Castilian (Fuero de Layron) by order of King Alphonso X., and a Gascon text of it is still preserved in the archives I of Leghorn, apparently in a handwriting of the 15th century, entitled " Asso es la copia deus Polles de Leron de jucgemens de mar."

The parent stock of the Wisby sea laws would appear to have been a code preserved in the chancery of Lübeck, drawn up in the Old Saxon tongue, and dated 1240. This code contains amongst many others certain articles on maritime law which are identical with articles in the Gothland sea laws, Gothland being the island of which Wisby was the chief port. This collection comprises sixty-six articles, and it is now placed beyond a doubt by recent researches, especially of Professor Schlyter of Lund, that these Gothland sea laws are a compilation derived from three distinct sources,—a Lübeck, an Oleron, and an Am-sterdam source. A Saxon or Low German text of this collection was printed for the first time in 1505 at Copen-hagen by Godfrey de Gemen, a native of Gouda in Holland, who is reputed to have set up the earliest printing-press in Copenhagen. This print has no title-page, and in this respect resembles the earliest known print of The Consulate of the Sea; but upon a blank leaf, which occupies the place of a frontispiece in one of two copies of Godfrey de Gemen's text, both preserved in the royal library at Copenhagen, there has been inserted with a pen in alternate lines of black and red ink the title " Dat hogheste Gotlansche Water-Eecht gedrucket to Koppenhaven Anno Domini M.D.V.," and there has also been inserted on the first page of the text the introductory title " Her beghynt dat hogheste Water-Recht" (here begins the supreme sea law). Professor Schlyter has discovered a MS. (No. 3123) in the royal library at Copenhagen, which is written on parchment in a hand of the 15th century, and from which it seems probable that Godfrey de Gemen mainly derived his text, as it comprises the same number of articles, containing the same matter arranged in the same order, with this minor difference, that, whilst both the MS. and the print have the simple title " Water-Recht" prefixed to the first article, the MS. has also a similar title prefixed to the fifteenth. Further, as this article together with those that follow it in the MS., appears to be in a handwriting different from that of the articles that precede, the fifteenth article may justly be considered as the first of a distinct series, more particularly as they are numbered in Eoman characters, beginning with § 1, and such characters are continued with a single interruption down to the end of the MS. Although, however, the numeration of the articles of this second series is continuous and the handwriting of the MS. from the fifteenth to the sixty-sixth article is un-changed, the text of the series is not continuous, as the fortieth article commences with an introductory clause— " This is the ordinance which the skippers and merchants have resolved amongst themselves as ship law." There is no difficulty in recognizing the first division of this second series of sea laws as a Low German version of the Judgments of Oleron, transmitted most probably through a Flemish text. This hypothesis would account for the sub-stitution in several articles of Sluys for Bordeaux. On the other hand, the introductory clause which ushers in the fortieth article is identical with the title that is gen-erally prefixed to MSS. of the maritime Ordinances of Amsterdam, and the text of this and of the following articles down to the sixty-fifth inclusive is evidently of Dutch origin and more or less identical with Verwer's text of the usages of Amsterdam. M. Pardessus, in his valuable Collection de Lois Maritimes, published in Paris before Professor Schlyter made known the result of his researches, has justly remarked that the provisions of several articles of this last division of the sea laws are inconsistent with the theory that they originated at Wisby. It may be observed that the sixty-sixth article of the MS. is a Lübeck law identical with the first article of the first series, which is of Lübeck origin. No colophon is ap-pended to this final article in the MS. Nevertheless, Godfrey de Gemen's edition of 1505, wdiich breaks off in the middle of the sixty-sixth article of the MS., has the following colophon :—" Here end the Gothland sea laws, which the community of merchants and skippers have or-dained and made at Wisby, that all men may regulate themselves by them. Printed at Copenhagen, A.D. M.D.V. " The question naturally suggests itself, To what MS. was Godfrey de Gemen indebted for this colophon, or is the alternative more probable that he devised it 1 There is no known MS. of this collection of an earlier date to which an appeal can be made as an authority for this colophon; on the contrary, the only known MSS. of which the date is earlier than Godfrey de Gemen's print, both of which are in the library of the university of Copen-hagen, are without this colophon, and one of them, which purports to have been completed at Nyköping on the Eve of the Visitation of the Virgin in 1494, concludes with a colophon which precludes all idea that anything has been omitted by the scribe, viz., " Here ends this book, and may God send us his grace, Amen." We are disposed to think that Gemen himself devised this colophon. He was engaged in printing for the first time other collections of laws for the Danish Government, and, as Gothland was at that time a possession of Denmark, he may have thus dis-tinguished the sea laws from another collection, namely, of land laws. Professor Schlyter, however, believes Gemen may have borrowed it from a MS. which is lost, or at all events is not known. There is some support to this view in the fact that in the archives of the guildhall of Lübeck there is preserved a MS. of 1533 which contains a Low German version of the same collection of sea laws, with a rubric prefixed to the first article announcing them to be " the water law or sea law, which is the oldest and highest law of Wisby," and there are good reasons for supposing that the scribe of this MS. copied his text from a MS. other than the Copenhagen MS. The same observation will apply to a second MS. of a similar character preserved in the library of the gymnasium of Lübeck, which pur-ports to have been written in 1537. But as regards the Wisby sea laws little reliance can be placed on such rubrics or colophons as proofs of the facts recited in them, though they may be valuable as evidence of the reputed origin of the sea laws at the time when the scribe completed the MS. In illustration of this view it may be stated that in the same year in which the more recent of these two MSS. purports to have been completed—namely, 1537—there was printed at Lübeck an enlarged edition of the sea laws consisting of seventy-two articles, being a Low German translation of a Dutch text, in which six additional Dutch laws had been inserted which are not found in the Copenhagen MS., nor have a place in Gemen's text, yet to this edition is prefixed the title, " This is the highest and oldest sea law, which the community of mer-chants and shipmasters have ordained and made at Wisby, that all persons who would be secure may regulate them-selves by it." Further, it has an introductory clause to its thirty-seventh article—" This is the ordinance which the community of skippers and merchants have resolved upon amongst themselves as ship law, which the men of Zea-land, Holland, Flanders hold, and with the law of Wisby, which is the oldest ship law." At the end of the seventy-second article there follows this colophon : " Here ends the Gothland sea law, which the community uf merchants and mariners have ordained and made at Wisby, that each may regulate himself by it. All honour be to God, MDXXXVII." Each article of this edition has prefixed to it after its particular number the word " belevinge " (judg-ment). It would thus appear that the Wisby sea laws have fared like the Oléron sea laws : they have gathered bulk with increasing years.

The question remains to be answered, How did this collection of sea laws acquire the title of the "Wisby sea laws" outside the Baltic ? for under such title they were received in Scotland in the 16th century, as may be inferred from extracts from them cited in Sir James Balfour's System of the more Ancient Laws of Scotland, which, although not printed till 1754, was completed before his death in 1583. The text of the Wisby sea laws generally current in Eng-land is an English translation of a French text which Cleirac published in 1641 in his Us et Goustumes de la Mer, and is an abbreviated, and in many respects muti-lated, version of the original sea laws. This inquiry, how-ever, would open a new chapter on the subject of the northern sea laws, and the civilizing influence which the merchants of Wisby exercised in the 13th century through their factories at Novgorod, linking thereby the trade of the Baltic to that of the Black Sea.

See Pardessus, Collection de Lois Maritimes antérieures au X VIII. Siècle (6 vols., Paris, 1828-45) ; Schlyter, Wisby Stadslag och Sjordtt, being vol. viii. of the Corpus Juris Sueco-Gotorum Antiqui (Lund, 1853) ; and The Black Book of the Admiralty, ed. by Sir Travers Twiss (4 vols., London, 1871-76). (T. T.)

The above article was written by: Sir Travers Twiss, Q.C., D.C.L., F.R.S.

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