Neither in this passage, nor in the authorities cited by Lord Mansfield in support of his judgment in Luke v. Lyde, is there a single indication of the doctrine of implied contract; it is treated as a simple right arising from work done for another, and the judgment itself is rather based on mediæval expressions of maritime law and custom than worked out from first principles.

If we turn to another branch of jurisprudence, that which is administered in the Admiralty Court, we shall find that in the leading case of The Gratitudine (i), which was decided by Lord Stowell in 1801, and settled the right of the master of a ship to hypothecate cargo for the cost of the repair of a ship when in distress, the mediæval codes of the Continent were cited in the arguments of counsel, and referred to in the judgment as fortifying the opinion of the Court so far as it rested on broad principles. The Consolato del Mare, the Laws of Wisbuy, and the Ordinance of Antwerp were all relied on; "the passage," said Lord Stowell, "which has been cited from the Consolato, Art. 104, is applicable. There it is said that a merchant, being on board with his goods. (which was the custom according to the simplicity of ancient commerce), having money, was obliged to advance it for the necessities of the voyage; and if he had not money, the master might sell a part of his lading. The Ordinance of Antwerp, likewise, seems expressly to recognise it." It may be said that these ancient authorities. were only used to show the propriety of the general principle enunciated by the Court, and not being judicial precedents cannot be regarded as forming a basis for the

(1) 3 C. Robinson, 240.

decision. Whilst no doubt this is so, a part of an ancient collection which starts as it were a principle, has by the mere fact of thus stating it made it available as an influence on the mind of the Court. When, as in England, judicial decisions only are regarded as actual precedents to be followed, it is not easy to know the exact value which, in the formation of a branch of jurisprudence, should be given to the ancient statements of a principle which is obviously adopted or followed by a Court of a different nationality at a later period of time as happened in the case of The Gratitudine.

Again, one of the most fixed principles of law as administered in the High Court of Admiralty was that the seaman had a lien for his wages on the vessel on which he served. This is one of those principles which is said to be based on general maritime law: the seaman was not only to have a remedy against the owner, but a right against the vessel, to use Lord Stowell's words, "as long as a single plank remained." But it is laid down in the 93rd and 94th sections of the Customs of the Sea, that the mariner has a right against the ship if he is not paid by the owner-"if there shall only be preserved a bolt it ought to be employed to pay the wages of the mariner," and "it is incumbent that the mariners should have their wages si la dita nan se n'sabia vendre, even if the ship should have to be sold." Here, then, is to be seen the right of the seaman against the ship; in other words, in the fourteenth century, the seaman's right of a maritime lien is expressly recognised. Even allowing for the obvious justice of such a right the source from which it found its way into the law as administered by the High

Court of Admiralty seems obvious. From this point of view, therefore, the Judgments of the Sea and the Consulate of the Sea have a direct interest in regard to the history of English law, since it is clear that many of the principles of maritime law in this country-the earliest and now the most firmly accepted-were formulated in these and similar collections, and were transplanted from them into the case law of England, often without any open recognition, except now and again, as in the historic judgment in Luke v. Lyde-a judgment which enabled Lord Mansfield to exhibit his knowledge of general maritime law, in other words, of maritime law as formulated in the medieval collections of various European countries.

CHAPTER VI.

LORD STOWELL AS A CREATOR OF MARITIME AND PRIZE

LAW.

If we look back over the years during which English law has been in process of continual growth and seek to ascertain some effects of judicial influence upon it, unquestionably that of Lord Stowell is the most remarkable. He may be regarded as the creator of two different bodies of law-that which is administered in the Admiralty Court, and that which is administered in the Prize Court. It was by a mere fortunate chance that he who was the judge of the High Court of Admiralty became also the judge in time of war of the Prize Court. The genesis of the High Court of Admiralty has been described in some preceding pages of this book (a). The Prize Court, which is the Admiralty Court exercising a peculiar jurisdiction in time of war, has also its source in the disciplinary powers vested in the Lord High Admiral in medieval times. The growth of jurisdiction is always obscure, and for many years anything in the nature of a prize jurisdiction was of an exceedingly elementary kind. The first case of judicial proceedings to decide the legality of a prize occurs in 1357. “In

(a) Ante, p. 92.

The answer of judicially and

that year the King of Portugal complained that an Englishman had spoiled Portuguese goods from a French ship that had previously captured them. Edward III. is that 'our admiral has rightly determined the ownership of the goods claimed by your merchants'-i.e. in favour of the captors. This is the first mention that has been found of judicial proceedings before the Admiral; it marks the beginning of the Court of Admiralty as a prize tribunal” (b). In 1360 a single Admiral-Sir John Beauchamp-was appointed to command the fleets of the North, South and West, and by his commission he was given, in addition to disciplinary, judicial powers, to be exercised secundum legem maritimam. But prize causes, it would seem, were brought for many years more frequently before the King's Council, or before Commissioners specially appointed, than before the Admiral, and it was not until the sixteenth century that the Admiralty Court became definitely the Prize Court of England. Thus in time the Admiralty Court became possessed of two separate jurisdictions, and the Instance and Prize jurisdictions of the High Court of Admiralty became a distinct feature of English procedure. Lord Stowell presided in the Court of Admiralty when these separate jurisdictions. were clearly recognised and in active operation.

How did it come to pass, however, that he left so permanent a mark of his individuality on English maritime law? Several answers may be made to this question.

(6) Early Prize Jurisdiction and Prize Law in England. By R. G. Marsden. English Historical Review, Vol. XXIV. p. 680.