Maritime practice and legal customs

If an obvious question to ask is why so little interest seems to have been shown in the origins of the rules occasionally applied, there are two equally obvious answers, neither of which is reassuring if the aim is to confirm that more legal reasoning went on than the records reveal.

The second obvious explanation for the absence from the records of references to authoritative sources of law – the laws of Wisby, Justinian’s Digest, acts of parliament and so on – is that the law was not conceived of in the fashion familiar to lawyers. The exceptional petition already mentioned may have owed something in its composition to written sources, but the rule of law it contained was said to have been established by the â€?ald lovable use lang observit withtin this nobill burght’. Similar language is encountered elsewhere. In one case merchants were required to make payments â€?eftir the forme of the auld ryte and lovable consuetude usit in this towne a lang tyme bigane’.⁵⁰ In several other cases parties were required to make payments in accordance with â€?use and wont’, â€?as use is’ or â€?as use and wont is amang mariners’.⁵¹ A sailor claimed in one of these cases that, â€?be use and custum amang mariners’, a skipper ought to reimburse him for expense he had incurred while recovering from an illness contracted on a voyage. Support for this claim could have been drawn from an article in the laws of Wisby, although it is not mentioned in the record.⁵² Another article in that code could have been cited to support a claim that a skipper ought to pay for the hire of a lighter required to transfer goods from his ship into an inaccessible harbour, though reference is again made to â€?use and custum’ alone.⁵³ Similarly, sailors who wished to terminate their employment on a ship were told that they must first help to complete its unloading, â€?conforme to the use of marenellis’, although here too reference might have been made to the laws of Wisby.⁵⁴ It is of course possible that the clerks failed to record references that were actually made to these articles, but it is also possible, and indeed more likely, that no copy of the code was consulted, that reliance was at most placed on distant recollections of its provisions and that mariners were largely unconscious of any influence the code had exerted on the shaping of their practices.⁵⁵ In any case, whether or not the code was cited, and however accurately its provisions may have been remembered, the crucial point is that it would not have contained directly applicable rules if what made behaviour obligatory was its customary observance.

When it was found that â€?the law of the sey’ permitted an ordinary sailor to withdraw from service on one ship to become an officer on another, the rule was said to have been â€?sufficientlie provyne’ before the court by â€?certane famouse skipperis’.⁵⁶ Even if the relevant provision of the laws of Wisby had been cited, what clearly mattered here was the testimony of recognised experts that the practice was known to them.⁵⁷ Testimony was taken because to ask what was lawful among mariners was to ask what was normal, and since normative behaviour was thus identified with normal behaviour, there was no sharp distinction, as lawyers would have expected, between questions of law and questions of fact. An assize found in one case that a ship had â€?come saifly in the havin of Abirdene and thair was maid fast witht hir anchors and towis, efter the use and custum as maisteris and marenellis usis to lay thair schip’.⁵⁸ In another case, a master claimed to have moored his ship in â€?the souerast fassoun, be the avyse and sycht of marinars’, and asked the bailies to â€?sand men of knawlege to se and considder gif the said schipe was soueralie fastnyt’.⁵⁹ After a leaking ship was brought into Aberdeen on an earlier occasion, the master had asked the court â€?to send downe certane schipmen to se and consider the same’.⁶⁰ In these cases, confirmation that standard practice had been adhered to would have amounted to confirmation that obligations had been discharged. There was a normative dimension to an otherwise factual inquiry, and it is not easy to distinguish cases like these from others in which, for example, the issue was whether goods were dry when loaded onto a ship â€?it beand considerit be famous merchand men’.⁶¹ The recourse to renowned experts in some of these cases is revealing, but it was not typical. The court was generally able to rely on the expertise of the mariners and merchants assembled in assizes to discover how their affairs were normally conducted.

Even if the more numerous entries in which reference is made to â€?use and custum’ are added to the handful of entries in which substantive â€?law’ is mentioned, they still amount to a small proportion of all the entries relating to maritime trade. There are other entries, however, in which questions of law appear to have been brought into focus, albeit without answers being provided. For instance, when evidence presented in one case showed that lint had been wet while being taken in a lighter from a ship into a harbour, the question was raised â€?quhidder the awnars of the schip or merchands aucht to pay the skaytht done to the lynt in the forsaid lychtars defalt’.⁶² Furthermore, even when no questions were asked, entries often have a repetitive quality that enables regularities of behaviour to be identified with such confidence that it has to be wondered whether things happened as a rule (descriptively) because governed by a rule (prescriptively). If it would be misleading for legal historians to reconstruct the reasoning that might have gone on in the bailie court had lawyers been involved, perhaps it would be possible for them to discover customary norms that offer answers to the questions sometimes raised, or that seem to be implicit in regularities of behaviour discernible elsewhere. As commissions of enquiry were established in many parts of Europe, both before and during the sixteenth century, to investigate and redact the usages and customs considered normative by lay people, and as lawyers, who tended to feature prominently on these commissions, sometimes endeavoured to describe popular customs in books they wrote, there may be some warrant for historians attempting to perform a similar task.⁶³ Perhaps they could try to identify customary norms in the way contemporary lawyers might have done. Perhaps, although they would need to bear in mind the lessons learned by both historians and anthropologists from study of the codification of legal customs, for what has repeatedly been found is that customary norms tend to change in character when reduced to writing by lawyers.⁶⁴ Indeed, even to talk of customary norms may be misleading.⁶⁵ For this second approach to be adopted, some way would need to be found of preserving the character of the usages and customs considered normative by mariners and merchants.