THE WRITER had occasion, in the collection of certain data for a purpose in no wise connected with its use in an article of this nature, to examine various authorities upon this subject. The most interesting discovery in connection with this task of delving through numerous volumes, some of extremely ancient vintage, was that early naval law was not based upon the military law of the land but that it did, in fact, precede such law by several centuries. Attributing the basis of naval law, as we recognize it in our service today, to the military law results from the fact that the Army is the older service. Inasmuch as this subject antedates the time when “the memory of man runneth not to the contrary,” it is hardly necessary to disavow any originality or to admit that the writer relied upon certain recognized authorities; nevertheless, he frankly does both.
All history commences with myth, goes from myth to fable, thence to folk-lore or tribe-lore, until it reaches, eventually, what we recognize as an authentic stage. Just so in the consideration of the subject of naval law “we have an account in the Fabulous Times that the Titans, being vanquished, the Brother-Gods, Jupiter, Pluto, and Neptune shared by lot the Dominion of the Universe amongst themselves. Heaven fell to Jupiter, Hell to Pluto, and the Sea to Neptune.” The teachings of some of the ancients, however, show that the truth thus hidden in fables was that Jupiter, Pluto, and Neptune were not gods but men. According to these teachings Jupiter was the ruler of the Dominions of the East, where the sun rises, seemingly the higher part or Heaven; Pluto was ruler of the Dominions of the West, where the sun goes down, hence the lower part or Hell, and Neptune was the sovereign of the sea and its islands.
Historical authority for this early tri-parte division of the universe is to be found in Lactantius’ De Falsa Religione, wherein concerning the dominions over which Neptune ruled: “’Tis evident that 'twas much like that unlimited command, which by decree of the Roman Senate was given to Cneius Pompeius, who thereby had authority over the sea and all its coasts, from whence he was to banish pirates.” From the mythical through the ancient and down to the modern times various countries and monarchs claimed dominion of the sea and actually did maintain sovereignty of the seas, or at least over such parts as their ships frequented.
First of these monarchs was Minos, King of Crete, supposed to have been the grandson of Jupiter, who, in the time of the judges of Israel, ruled over all the Cretan and the greater part of the AEgean Sea as sovereign lord. It is quite probable that he exercised this sovereignty by right of conquest. Plato has attributed to Minos the Sea Lazes of the Cretans. These sea laws of Minos were the foundation of Plato’s laws. (Although some of the later writers question the authenticity of the sovereignty reputed to have been exercised by Minos and his promulgation of sea laws, Plato is sufficient authority to give them credence in the absence of proof to the contrary.)
After the Cretans the Lydians exercised dominion over the seas for about one hundred years, then the Pelasgi were rulers of the seas for about fifty years, during the days of Solomon. The Thracians followed the Pelasgi in the time of King Jeroboam. The Rhodians followed the Thracians during the reign of Jehosophat.
After the rule of Minos there is no account of further development of sea laws until the naval laws of the Rhodians. In fact the fame of the Rhodians may be attributed to their naval laws and not to their naval power or supremacy. Other nations no doubt did control, after a fashion, seafarers, but they were recognized only according to the actual strength they exercised at sea. Each king attempted to make the sea an integral part of his kingdom, apparently extending the laws of the land to the sea. Minos may possibly have been the single exception.
The Rhodian naval laws, however, are the most ancient now in existence. These people must certainly be credited with the first maritime code. These laws were in force among the Romans from the time of the Emperor Tiberius. The Emperor Antonius directed that Endaemon’s petition be decided according to the Law of the Rhodians, and Justinian, 483-565 a. d., incorporated the Rhodian laws into the Roman digest.
The Rhodian control over the sea must have been about two hundred years before the founding of Rome. There is no mention of any further sea laws until the Rhodian laws were added to from time to time by the cities and provinces of Italy. They were revised and added to by the Emperor of Rome in 1075 a. d., and by cities and other authorities as noted: Marseilles, 1162; Genoa, 1186; Venice, 1215; Constantinople, 1262; Constantine, 1270; Peter of Aragon, 1340; Barcelona, 1434. This collection of laws served the Mediterranean for hundreds of years.
The first laws on the Atlantic were promulgated by Richard I of England, who established the Maritime Laws of Oleron upon his arrival at the Island of Oleron on the French Coast, on his return from a crusade to the Holy Land. The Laws of Oleron decreed that the master of the ship should keep peace among the seamen and be as their judge at sea.
From the time of Richard I, the Laws of Oleron governed the Atlantic just as the Rhodian laws governed the Mediterranean. In 1375 Edward III of England issued articles concerning the admiralty and seafaring, and in 1561 Frederick II of Denmark set down a revision of the Laws of Oleron. Notwithstanding these statutes and revisions certain of the Rhodian laws are today recognized among the nations throughout Europe.
At the beginning of the Roman Empire a special distinction existed between persons to whom the charge of shipping was given and those to whom the command of fleets and navies was committed, and between persons wbo exercised jurisdiction over controversies. Governors of fleets were called archigubernii. Later, during the scat of the Empire at Constantinople, the title was changed to admiratus from the Sarazen word amiras, meaning overseer. Then the title was again changed to great admiral, whence came our present designation of admiral. The captain of a ship was designated by Roman law, magister navis; by the Dutch, skipper. The captain was from earliest days charged with responsibilities. The whole power and charge of the ship was committed to him. This power was prescribed partly by the owner and partly by the common law of the sea. The ships serving the country or the prince were from earliest times privileged ships.
Exercise of justice among seafaring men among the Romans was at first under jurisdiction of magisterial who were accountable to Praefectus Praetoris Sublissimus from whom there was no appeal. Later, for the readier obedience to the admiral of the sea, he was given sovereign jurisdiction over all seafaring men within his bounds (this was apparently done by some form of common consent of nations) and over all seafaring causes and controversies, both civil and criminal. This authority was generally established in Europe early in the sixteenth century. It is to be noted that this system has developed into the Admiralty Courts of today.
The first organized English Fleet appeared in 876 under Alfred to meet the Danes at sea, but from the time of William the Conqueror for nearly two hundred years England’s Navy was composed of merchant ships of the Cinque Ports. It was not until the latter part of the fifteenth century that the man-of-war appeared, and with it the military officer afloat who was succeeded by the naval officer combining the functions of military officer and of mariner.
Richard I, in 1190, established the first laws and ordinances for the regulation and government of his navy, which consisted of the heterogeneous fleet of the Crusades, composed of ships drawn from all the ports of the kingdom. These regulations provided especially for the punishment of offenses against life and property. Here we find special ships and special regulations, a combination of both admiralty and naval laws, the foundation of the present day Navy Regulations.
Under King John, who died in 1216, was created the first naval administration of England with establishment of an office called the “keeper of the king’s ships”—later designated “clerk of the king’s ships.” His authority was preeminent until the establishment of the navy board in 1546.
The Black Book of the Admiralty contains a treatise on the office and duties of the admiral compiled prior to the year 1351. He was to administer justice “according to law and ancient custom of the sea.” This document goes on to recite “the ordinance how the admiral himself should rule and govern by sea and land in the country of the enemy, if he come there.” No seaman was to be beaten or ill-used, but offenders were to be brought by the captain or master to the admiral to be dealt with according to the law of the sea. In the reign of Edward III, 1337, the king’s council gave directions to Sir John Rous, admiral. The king and his council managed the navy, leaving the details to the admiral. The admiral held courts of admiralty, administered the ancient maritime law and punished offenders “according to the custom of mariners.” Captains of ships, unless they had received explicit authority to do so, were not permitted to punish seamen, but it appears that authority was often so granted. Death penalty, by hanging, was prescribed in case of conviction by a jury of twelve persons (the authorities do not prescribe the particular qualifications of these jurors) for theft of a buoy rope fastened to an anchor, no matter what the value, and for the theft of an anchor or boat of the value of twenty-one pence. No lieutenant (presumably aide) of an admiral could, without special warrant, try matters affecting life and death. Offenders were to be imprisoned by masters or captains pending the acquaintance of the admiral or his lieutenant with the circumstances. (Commanding officers in our Navy are guided by this same procedure in all cases involving general court-martial today.)
Henry VIII, 1509-1547, ordered prepared an elaborate set of fleet regulations called A Book of Orders by Sea and Land. Prior to these regulations "different ships, different ways” applied in a great diversity of custom and regulation. With the promulgation of these regulations the Navy as an organization became a fixture in England. The lord high admiral, the “king’s lieutenant of sea affairs,” thereafter issued commissions to naval officers. The captain of a king’s vessel (man-of-war) differed little, if any, however, from a captain of a merchant vessel. They were interchangeable. The difference between them was that the captain of a king’s ship regarded the king and the “keeper of the king’s ships” as sources of authority and himself as representative of that authority. In the year 1546 Henry VIII established the “Navy Board,” which functioned somewhat similarly to our “General Board” today.
The first case of trial by court-martial for insubordination was in the year 1557. During Cromwell’s Protectorate is the first record of a captain being court-martialed for the grounding of his ship, although she floated without damage. The first “Articles of War” constituting a code of discipline were enacted by Parliament in the year 1652.
Although the Royal Navy of England dates from the reign of Henry VIII as a direct result of his regulations, A Book of Orders by Sea and Land, yet he did not provide regulations for manning and disciplining his navy. James II established certain regulations for his navy governing the conduct of the commanding officers. William established more stringent regulations and included provisions for rates of pay. In the reign of Charles II two sets of orders were added: General Instructions to all Commanding Officers and Orders Established for the Well-governing of His Majesty’s Ships, and Preservation of Good Order Among the Respective Commanders, Officers and Seamen Serving His Majesty in the Same. The Prince of Denmark, during his occupation of the office of lord high admiral, established certain regulations for the government of his navy. These regulations prescribed penalties for certain offenses. Punishment for “theft” and “sleeping on watch” was “according to the discretion of the commander.” Court-martials in the royal navy were regulated by Act of Parliament during the reign of George II.
We see, therefore, that the powers exercised in the earliest times by both captains of ships serving nations and princes (public vessels) and masters of merchant vessels were later curbed to such extent that nearly all such powers were exercised by the admiral under the admiralty jurisdiction conferred upon him. Then follows a gradual restoration of the original power to captains of naval vessels (men-of-war) which reached its peak probably about the time of the Revolutionary War, as is clearly set forth by John Paul Jones in his report to the naval committee of the Continental Congress prescribing the proper qualifications of naval officers “His (the commanding officer’s) authority when off shore being necessarily absolute. . . . Force must be used sometimes for the ends of discipline. ... A navy is essentially and necessarily aristocratic. . . . Whilst the ships sent forth by Congress may and must fight for the principles of human rights and republican freedom the ships themselves must be ruled and commanded at sea under a system of absolute despotism.”
Our Navy Department was not established until April 30, 1798. Prior to that time the Navy was a part of the War Department and was governed primarily by the military laws of England which had been put into effect bodily in 1775. These military laws of England, augmented somewhat by the common law and customs of the sea, governed until the Congress in 1862 enacted the Articles for the Government of the Navy. (It is interesting to note in this connection that although the Navy was merely a part of the War Department until 1798, yet, under the provisions of the Constitution of the United States adopted prior to 1790, Congress may legislate and provide for the maintenance of the Navy over a period of years, without limit, whereas they are prohibited from so providing for the Army for a longer term than two years.)
Just as the early despotic power of the commanding officer was restricted by the creation of the admiralty court presided over by the admiral, for the mutual protection of the commanding officer and the individual under his command, just so have the Articles for the Government of the Navy curbed the despotic powers which had been redelegated to the commanding officer during the period prior to the Revolutionary War, again for the mutual protection of the commanding officer and the individual serving under his command.
Naval law has been the outgrowth through the centuries of the application of the customs of the sea and the common law of the sea, as augmented and modified from time to time by regulations and statutes. The severity of its punishments has ever been in accord with the temper of the common law. As has been very aptly put by Harwood, “it neither takes the place of common law, nor releases the (naval) military community from the general operation of the law of the land. It imposes new obligations on those who fall within its jurisdiction, in addition to those which were previously required of them in their general quality of common citizens of a common state.”