Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/249

 7. SCRUTTON: ROMAN LAW INFLUENCE 235 chiefly by the Imperial laws, the Rhodian laws, the Laws of Oleron, or by certain peculiar municipal laws and constitu- tions, appropriated to certain cities bordering on the sea, or by those maritime customs. . . between merchants and mar- iners." ..." The Court of Admiralty proceeds according to the known laws of the land and the ancient established Sea laws of England with the customs thereof, so far as they contradict not the laws and statutes of the realm." ^ ..." A great part of this Fabric is laid on a foundation of Civil law ... a law allowed, received, and owned as the law of the Admiralty of England " ^ . . . though " It is most true that the Civil law in England is not the law of the Land, but the law of the Sea. . . a law, though not the law of Eng- land, not the Land law, but the Sea law of England." ^ Hale in 1676, with his usual strong feeling against the Civil law, sums this up thus ; ^ " The Admiralty Court is not bottomed upon the authority of the Civil law, but hath both its power and jurisdiction by the law and custom of the realm in such matters as are proper for its cognizance. This appears by their process. . . and also by those customs and law maritimes whereby many of their proceedings are directed, and which are not in many things conformable to the Civil law . . . also the Civil law is allowed to be the rule of their pro- ceedings, only so far as the same is not contradicted by the Statutes of this realm, or by those maritime laws and cus- toms, which in some points have obtained in derogation of the Civil laws." This opinion of Lord Hale's, though apparently incon- sistent with the dicta previously cited is not, I think, so in reality ; for all that he alleges is that the Civil law is only law in England by the authority of the English Crown, and that in many points it has been altered and modified by later decisions and enactments ; and both of these propositions are recognized by previous writers. Blackstone says of the ® ** maritime Courts before the Lord High Admiral," that " their proceedings are according to the »Godolphin, Pref. "Ibid, p. 123. 'Ibid, p. 13T. • Hale, Common Law, p. 40. • Bl. iv. 68.