and those, whether nobles, lawyers, or others, who were only occasionally summoned, much more marked. . . . It is, therefore, sufficiently apparent that under Henry VI. a select council was gradually arising from the midst of the general council; that a change was taking place precisely analogous to the process by which, in a later age, the privy council itself gave birth to the cabinet."1 Having traced the growth of the council, viewed as a restraining influence upon the royal authority, down to that point in its history at which the separate existence of the inner circle known as the "privy council" distinctly appears, its further consideration will be post poned until it can be hereafter viewed in the new aspect which it assumes as an irresponsible engine of tyranny in the hands of the York and Tudor kings. the admi 5. While the absence of conflict between the crown and Origin of the parliament during the reign of Henry V. obscures for a ralty. time the history of the council as a restraining influence upon the royal prerogative, the vigorous revival of the French war which followed Henry's accession brings the council as an administrative body into fresh prominence as the active agent of the executive power. The minutes of a meeting of the council held in May, 1415, reveal through the mass of business then pending the full scope of its activity. From the consideration of matters touching an alliance with the Duke of Burgundy, the council passes in turn to questions of finance, matters of police, measures for the suppression of the Lollards, and, last and most important of all, to provisions for national defence through the issuance of commissions of array, and orders for the equipment of the army and the fleet.2 At this point the account heretofore given of the mediæval system of military organization may be conveniently supplemented by a brief summary of the history of the admiralty. admiral. The office of admiral, which finds its origin upon the shores Office of of the Mediterranean, whence it was transferred to the North European countries by the returning crusaders, seems to 1 Dicey, The Privy Council, pp. 44, 45. The same author says (p. 43), "Reasonable doubts may be enter tained whether, prior to Henry VI. the Privy' and 'Ordinary' council were 2 Proceedings of the Privy Council, ii. p. Old-Eng lish fleets. have made its first appearance in England when, in the year 1286, Edward I. appointed William Leyburne captain of all the portmen and mariners of his dominions under the title of Admiral de la mer du Roy d'Angleterre. In 1306, from which time there is an uninterrupted succession of admirals, Edward Charles appears as captain and admiral from the mouth of the Thames northward; and Gervase Allard as captain and admiral of the fleet of the Cinque Ports and of all other ports from Dover westward.1 This division of the maritime jurisdiction between two admirals of the North and West continued down to 1360, when a single high admiral of England was appointed in the person of Sir John Beauchamp. During the remainder of the medieval period the office of admiral is at one time divided, at another reunited in a single person.2 Beginnings The obscurity which conceals the early history of the of the navy. admiralty renders it alike difficult to ascertain how the national fleets were at first constituted, and how the sovereignty of the sea was practically secured to the king as lord thereof against the claims of the privileged seaport towns, and of private individuals who carried on sea adventures of a semipiratical character. The beginnings of the English navy can be faintly traced in the fleets which were raised in the latter part of the pre-Norman period for the protection of the kingdom against the incursions of the Danes. Under the scheme then employed each shire was required to furnish ships in proportion to the number of its hundreds, an arrangement which applied to the inland shires as well as to those on the seaboard. Each shire sent its quota of ships to the fleet, as it sent its quota of fighting men to the host. This primitive system, which did not long survive the Norman conquest, was succeeded after that event by a new arrangement based upon different principles. In order to supply the lack of a The Con- regular navy, and to protect the southern seaboard against queror and attack, the Conqueror incorporated the Cinque Ports and endowed them with certain special privileges, upon condition the Cinque Ports. 8 See above, p. 187 and note 2. As to the history of the Old-English fleets, see Norman Conquest, vol. i. pp. 226– 230. 4 From the time of the Conquest the that they would furnish a given number of ships and men for so many days in case of an emergency. The naval force thus contributed by the privileged towns for local defence was augmented, when the crusades created a necessity for a large number of ships for foreign expeditions, by fleets of mercenaries, which were maintained, like the mercenary element in the army, out of the royal exchequer. In the naval Origin of force of mercenaries thus raised and maintained out of the royal revenue the permanent fleet finds its origin.1 The organization and government of the fleet, thus dependent upon the king's bounty, devolved during the medieval period upon the admiral, the king's lieutenant and highest naval representative. the perma nent fleet. ral as the court of ad defined its tion. In addition to his position as the executive head of the The adminaval administration, the admiral was also the president of a president sovereign court- the high court of admiralty-in which he of the high sat in person or by deputy to assert the king's lordship over miralty. the seas, and to hear and determine all maritime causes arising outside of the limits of any county, that is, beyond the reach of the common law tribunals. The code of sea laws, Code of sea which defined the jurisdiction and regulated the procedure of laws which this high prerogative court, consisted of a collection of the jurisdic usages of the sea, which during the medieval period acquired, through the consent of the maritime nations, the force of customary law. Through the fame acquired by the judgments of a maritime court of the island of Oléron, in which were defined the sea usages of the Atlantic, such usages came to be known as the "Laws of Oléron."2 It is probable Laws of that a record of these judgments was brought into England and published as law by Richard I. upon his return from the Holy Land. Certain it is that the earliest collection of such usages and judgments of the sea received in England is described in the Black Book of the Admiralty as the "Laws of Oléron;" and the earliest known text is contained in the Cinque Ports are found in the posses- 1 "The permanent fleet then was, from its very origin, a fleet of mercenaries, and was maintained from the royal revenue, just as a band of Brabançons might have been. . . . John's naval ar ... mament was organized on this plan." 2 As to the cause which brought 8 Such is the statement of Cleirac. Oléron. ments of the admiralty court upon the common law tribu nals: Stat. 13th Richard II. st. I, C. 5. Liber Memorandorum, contained in the archives of the Guildhall of the corporation of London.1 So marked did the tendency of the admiralty jurisdiction which grew out of the Encroach- enforcement of these sea laws to encroach upon the domain of the common law tribunals become, that it became necessary as early as the reign of Richard II. to check its advance by very stringent legislation. The statute of the 13 Richard II., after reciting in the preamble that "a great and common clamour and complaint hath been oftentimes made before this time, and yet is, for that the admirals and their deputies hold their sessions within divers places of this realm, as well within the franchise as without, accroaching to them greater authority than belongeth to their office, in prejudice of our lord the king and the common law of the realm," etc., directs that the admirals and their deputies shall not meddle henceforth with anything done within the realm, but only with things done upon the sea, according to the custom in the time of Edward Stat. 15th III. Two years later the statute of 15 Richard II. provided that, by reason "of the great and grievous complaint of all the commons," the court of admiralty shall have no cognizance of any contract, plea, or quarrel, or of any other thing done or arising within the bodies of counties, whether by land or water, nor of wreck of the sea; but that the admiral shall have cognizance of the death of a man, and of mayhem done in great ships being and hovering in the main stream of the great rivers; yet only beneath the bridges of the same rivers nigh to the sea.2 In the next reign it was provided by statute of 21 Henry IV. that, if the admiral or his lieutenant exceed their jurisdiction, the statute and common law may be holden against them; and if any man wrongfully pursues in the admiralty court, his adversary may recover of him double damages at common law. The instance jurisdiction. of the admiralty was permanent; the prize jurisdiction was Richard II. C. 3. Stat. 21st C. II. 1 See Sir Travers Twiss's excellent article entitled "Sea Laws," in Enc. Brit., 9th ed. xxi. pp. 583-586. "The Laws of Oléron, as they were called, might constitute a national code of maritime law for the direction of the admiral; and whatever was defective therein was supplied from that great fountain of jurisprudence, the civil law, temporarily bestowed by virtue of a special commission which was usually issued at the commencement of hostilities. ralty courts lish colo When the English colonies in America were established, Vice-admivice-admiralty courts were created whose civil and maritime in the Engjurisdiction "extended to the same subjects and was exer- nies in cised under the same limitations in the colonies as in Great America. Britain. Upon the establishment of colonial governments,' says a learned judge of one of those courts, 'it was deemed proper to invest the governors with the same civil and maritime jurisdiction; and therefore it became usual for the lord high admiral or the lords commissioners to grant a com- Colonial mission of vice-admiral to them.' The office thus conferred made viceon the governor was precisely the same with that of the admirals. vice-admirals in England, and was confined to that civil and maritime jurisdiction which was the original branch of his authority. (Stewart's V.-Ad., 394, 405.) These courts were subordinate to the admiralty court of England, and until the late reign of William IV. it received appeals from them. (1 Dod. Adm. R., 381.) "1 governors jurisdiction Long after the Federal Constitution of 1787 had extended Admiralty the judicial power of the United States "to all cases of as ultimateadmiralty and maritime jurisdiction," 2 a famous controversy ly defined arose, involving the question whether the ancient rule, which ed States. excluded such jurisdiction from waters within the bodies of counties in the old land, should likewise exclude it, in the new, from the mighty rivers which constituted great highways of commerce, and from the vast lakes that were no less than inland seas. Authority and precedent, which blindly refused to recognize changed geographical conditions, fought for the ancient rule on the one hand, while an invincible logic, which demonstrated that the reason of the ancient doctrine had ceased, contended for a new and more convenient rule on the other. Guided by that marvellous prescience which has ever directed American statesmen and jurists in adapting the institutions of the mother land to the changed conditions of the new, the supreme court of the United States finally abolished the ancient rule with all of its |