Laws of Seas

Roman concepts pertaining to ius gentium, civitas, imperium and dominium informed the jurisprudential and ideological contours of early modern European political thought about empire.

In England, and sometimes to the

chagrin of customary and common law thinkers, adaptations of Roman civil law shaped a good deal of chancery, ecclesiastical, and admiralty jurispruВdence throughout the early modern period and beyond. Much of the scholarВship has understandably emphasized the problem of territorial acquisition.^[900] With regard to maritime contexts, what persisted of Roman law in its maritime dimensions was itself a gradually developing and never fully codified or cenВtralised body of customary law. The same principles and tensions that characВterized the merchant customs of the ancient and medieval Mediterranean would shape a good deal of late medieval and early modern legal practice. This was the case even as early modern legal codes adapted to shifts from east-west to north-south trading networks and accommodated the rise of increasing state control over commerce within and beyond increasingly well-defined and protected boundaries.

The Rolls of Oleron were adapted by English coastal towns in the middle of the thirteenth century as the customary laws with which English merchants and sailors crossing the English Channel would have been familiar, and the laws originating from the island off of the French coast defined the terms of British engagements within the Isles and with entrepots in Europe. These rules contain starkly similar rules of jettison and assumptions of common risk as had pertained in the Roman constructions of Rhodian maritime law. Such rules including protecting the right of those in need to seek shelter on foreign shores, legal acknowledgment of the laws and protections pertaining in the home jurisdiction of travellers, as well as the right of the poor to benefit from lost wealth or goods that might wash on the shore, provided these activities are carried out with the customarily expected knowledge, consent, and Christian compassion of the local lord.

That lord could also claim a partial right to the great fish, or whales, that washed up on their shores (while those found or taken at sea were accounted the possession of the finder). Adopted around the same time by Alfonso x in Castile, the Siete Partidas contained similar rules outlining the risks and guarantees of sea travel for merchants and their goods, and these rules in turn would go on to form the basis of the Consulate of the Sea and the laws of the Hanse Towns in the fourteenth and fifteenth centuВries.^[901] ^{^[902] All of these interrelated and conversant legal cultures were characterВised by a similar tension as their ancient predecessors: customary laws reflectВing long-existing and perpetually negotiated trade and the pragmatics of inter-jurisdictional travel and transport over the sea were adjudicated by the courts and officers most directly tied to royal prerogative and judicial discreВtion. The laws of Oleron formed the basis of the early practice of admiralty as it arose in the fourteenth century in England, and in time appeal from the Court of Admiralty in the following century would go straight to the Lord Chancellor in Chancery. The constitutional conflicts of Tudor and Stuart EngВland, I want to suggest, have a great deal to do with the unravelling of this longВstanding interdependence between jurisdiction and custom, and between judgment and plurality. Melville will fit into this story because in his own time he resituated the origins of politics in the United States in this history of law's attempt - through empire - to come to terms with both the ocean and the crown. The dramatic nature of the shifts that took place in the legal recognition of the ocean can be seen as early as Thomas More's Utopia in 1516. As Bradin CorВmack points out, More in his career as a lawyer had long experience with comВmercial and maritime matters before the conciliar jurisdictions of the ChanВcery and the Star Chamber prior to becoming the Lord Chancellor in 1529.23 It was his representation of the ambassador from the Vatican in a Star Chamber case, arguing for the return of confiscated ship cargo belonging to the Pope, that likely got him noticed as a leading legal mind of his time.
A defence of the equitable and conscientious discretion of conciliar jurisdiction as a critical part of the medieval and Mediterranean ius commune of which More insisted to the end of his life that England was a part. The imagining of the Utopia was the same time a perfect distillation of the tension involved in the state instituВtional, jurisdictional, and territorial consolidation, and of how overseas empire was both dependent on and challenged by the royal prerogative and its delegaВtions to conciliar and admiralty courts. The perfect equality of the Utopians exists as a matter of law and royal deВcree, distilling the discretionary nature of equitable judgment in the strictly decreed form of life practiced on the island. It is somewhat of a scholarly conВsensus that More dramatised a banishment of conscientious discretion and prerogative here that he would have found impossible to endorse, much less bring into being, even while he advanced a humanist criticism of the civic and moral implications of enclosure and accumulation. The settler dimensions of the Utopian polity, however, enlist the ocean itself in the kind of jurisdictional flattening depicted in Book 1. Anticipating a great deal of later English colonial theory, More's Utopians are colonizers who select from among themselves members to push further out in the ocean and settle new communities in the lands of barbarous peoples who have not established title and sovereignty. The ocean as a plane of settlement and commerce was a staple of utopias: Francis Bacon's New Atlantis a century later attributed the loss of commerce with NaВtive Americans and representations of American degeneracy to the long efВfects of the great flood that had destroyed the original kingdom, leaving the other peoples of the world without sufficient maritime technology or power to venture out from bays and seas and to brave the open ocean. Overseas comВmerce and empire presented itself here as a world-historical opportunity to reassert the human over nature.
By 1627, when Bacon's work was published shortly after his death, projecting maritime power in the Atlantic world had become a foundational component of English conquest and geopolitical positioning. At the same time, the ElizaВbethan regime had attempted to strike a delegate balance between prudent recognition of seas and oceans as open to navigation and commerce and the project of asserting English dominion in North America on the bases of hisВtoric exploration and fishing in the islands and coasts of the North Atlantic. Ken Macmillan has rightfully pointed to the importance of Roman law concepВtualisations of the laws of nature and nations in English justifications of terriВtorial conquest and legal theory in the sixteenth and seventeenth centuries,^[903] but important intellectual changes in law along with the practical challenges of overseas empire made reliance on the old assumptions and guarantees problematic, and people knew it.
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Source: Cavanagh Edward (ed.). Empire and Legal Thought: Ideas and Institutions from Antiquity to Modernity. Brill,2020. вЂ” 634 p.. 2020

Laws of Seas

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