Chapter II. During the Middle Ages
Part 1 Maritime Codes
“In the dark ages, between 476 and 800 A.D. International law reached its nadir in the West”.1 Private war, on land and piracy at sea were unrestrained. There were of course no laws providing for the division of prize money.
By the eleventh and twelfth centuries many cities of the Mediterranean and North seas had become powerful commercially and issued laws for determining maritime affairs. Such were the Amalfitan Tables, the Judgments or Roles of Oleron, the Laws of Wisby, and the Consolato del Mare originating in Barcelona.2 As these laws simply stated the universal customs of the sea it came about that all maritime towns would adopt one of these codes.3 Thus by the fifteenth century the Consolato del Mare was recognized maritime law in most of the commercial cities of the Mediterranean4 while the Judgments of Oleron were in a similar way recognized by the towns of the North Sea.5 These laws were intended primarily to regulate the private relations of mariners, owners and merchants, but on account of the necessity of protection from pirates many of them also included laws of maritime war and prize. State organization had not developed sufficiently to afford protection to merchants on the sea, consequently the merchants themselves formed protective organizations, furnished armed cruisers for making prizes and established consulates for judging maritime cases and for enforcing the definite codes of maritime law.6
The Consolato Del Mare may be taken as an example of the maritime codes. It probably originated in the thirteenth century. The earliest known manuscripts are in the Catalonian language and apparently were engrossed in the middle of the fourteenth century. The earliest printed copy is dated 1494 and is also in the Catalonian language.7 The chapters on prize law, state the principles on which enemy property may be captured. In general the principle is established that enemy vessels and neutral goods are exempt. Originally the armed merchantmen were in no way bound to any state so no commission delegating state authority to make captures is mentioned. Apparently the prizes had to be adjudicated at the consulates established by the merchant leagues.8
There are chapters dealing with “cruizers” which give the municipal usages concerning the distribution of prize between the owners, officers and crew of vessels.9
“Thus among the Italians a third part of a captured ship goes to the captain of the victorious ship, a third part to the merchants to whom the cargo belonged, and a third part to the sailors”.10
It thus appears that the Consolato distinctly recognized the reign of law in prize matters. It respected neutral rights, it required adjudication on prizes, it gave rules for the division of prize money, respecting the claims of merchants, captain and crew to share in the distribution.
The rules of the Consolato appeal to one decidedly as rules intended to govern commercial enterprises. The policy of the merchants was of defensive rather than offensive war so no stringent belligerent rights were affirmed. Primarily intended for commerce, it is not surprising that such a large amount of respect was paid to neutral rights and such a large share of the prizes given to merchants. The minute rules, seemingly forecasting every possible contingency also speak of a strong desire to establish order, and firm law, both conditions essential to commerce.
The Consolato was probably effective for its purpose. We know that the merchant guilds and the maritime towns flourished, piracy decreased, commerce prospered. The merchant sailors would not be likely to be lured into making prizes for private gain when their very object was the destruction of piracy. Also habits of commerce and obedience to law would induce them to exhibit moderation in war matters. The maritime laws and the supremacy of the commercial towns was a great step toward legalizing maritime warfare and especially toward ameliorating the condition of private property on the sea.
One of the peculiarities of the Consolato from a modern standpoint is that it does not recognize the exclusive right of states to make war. This is explained by the fact that territorial states had not become sufficiently centralized to organize a definite maritime jurisdiction. However, in the early part of the sixteenth century the movement toward the individualizing of territorial states was rapidly nearing completion and it is interesting to note that when the movement was sufficiently advanced nearly all the states adopted one of the old maritime codes into their laws, of course adding to it the principle of state authorization for all reprisals or wars and state jurisdiction over prize cases.11
Notes
Chapter II, Part 1.
1 Walker, History of the Law of Nations, p. 64.
2 For brief discussion of many of the Maritime Codes see E. C. Benedict, The American Admiralty, 4th Edition, Albany, 1910. The so-called Rhodian Sea Laws are thought by Ashburner to date from the seventh or eighth century A. D. Other writers place them later. The earliest manuscript apparently dates from the fifteenth century. It is well established that they have no connection with the ancient sea laws of Rhodes but possibly they were authorized by the Byzantine Caesars and undoubtedly they consist of laws recognized in the Eastern Mediterranean in the middle ages. These laws relate only to civil matters at sea and have no provisions dealing with prize but in their general provisions they may have furnished a basis for the maritime codes of a few centuries later, see Ashburner, The Rhodian Sea Law, Oxford, 1909.
3 Twiss, Introduction to the “Black Book of the Admiralty”, Rolls Series, No. 55, iii, 80.
4 For discussion of the influence of the Consolato, see Twiss, Consulate of the Sea, Encyclopedia Britannica, 11th Edition, vii, 23. Ashburner takes a less favorable view of the Consolato. He considers it a literary production giving the authors theory of sea law rather than a correct statement of the law as it was. In his opinion more confidence should be placed in the maritime statutes of the towns such as the laws of Amalaric, St. Cuzala, Genoa, St. Ancon, Baracchi, St. Caltaro, etc. than in the Consolato.—Ashburner, op. cit. p. 120.
5 For discussion of the Laws of Oleron, see Twiss, Sea Laws, Encyclopedia Britannica, 11th Edition, xxiii, 535; Sir John Comyn, A Digest of the Laws of England, 5 Vols., Dublin, 1785, i, 271; also note post p. 42.
6 Wheaton, History of the Law of Nations, p. 62.
7 For discussion of origin and early manuscripts see Twiss, Introduction to “The Black Book of the Admiralty”, iii, 26 et seq.
8 For text of prize chapters of the Consolato, see English translation by Dr. Robinson in his Collectanea Maritima, No. v; quoted in Wheaton, History of the Law of Nations, p. 63; Original and translation by Twiss, Black Book of the Admiralty, Rolls Series No. 55, iii, 539; French translation by Pardessus, in his Collection des Lois Maritimes Anterieures aux XVIII Siecle, ii, c 12, noted in Wheaton, op. cit. p. 61, Walker, History of the Law of Nations, p. 116; See also note by Grotius, op. cit. iii, 9.
9 Twiss, Introduction to Black Book of the Admiralty, iii, 76.
10 Consolato Del Mare, c 285, quoted in Grotius op. cit. iii, 145.
11 Wheaton, History of the Law of Nations, p. 66.