The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

30.

THE HISTORY OF THE ADMIRALTY JURISDICTION1

By Thomas Lambert Mears2

THE Admiralty Court had its origin in the authority of the Admiral, of whom the judge was the deputy.

The title of admiral,3 to indicate the custos maris4 of earlier times—that is, the officer exercising the jurisdiction of the Crown in respect of the command and charge of the sea, either during a particular expedition or over a particular district—was not used in England as an official description before the year 1286,1 and the first patent of Admiral of England conferred upon a subject would appear to date from 1386.2 The command of the English seas was then divided, as had previously been the case with the custodes maris, between several admirals, with limits to the north, south or west from the mouth of the Thames;3 but owing to the necessity for the defence of the coast, especially of the county of Kent, which was particularly liable to invasion, and the importance of commanding the eastern entrance of the English Channel, special privileges, liberties and franchises were from early times bestowed on the so-called Cinque Ports, Dover, Hastings, Romney, Hythe and Sandwich, to which the two ancient towns of Winchelsea and Rye were added in the time of Richard I.4 In 1294 Gervoise Alard, of Winchelsea, was Capitaneus and Admirallus of the fleet of the Cinque Ports, and of all other ports from Dover to Cornwall.1 It is said that “the office of Admiral of the Cinque Ports is more ancient than the office of Lord High Admiral,” and that he had “all the authorities, rights, and royalties belonging to an admiral annexed to his office.”2 The Court of Admiralty of the Cinque Ports, locally situated at Dover,3 still exists, as it was not included in the sweeping changes effected by the Municipal Reform Act.

The authority of a Lord High Admiral depended upon his commission.4 He was sometimes instituted for life and sometimes during pleasure,5 and it would follow from his position in command of the fleet1 that his jurisdiction was originally of a disciplinary and administrative character, limited to the crews of the vessels under his direct orders, offenders being brought before him to “undergo and receive what the law and custom of the sea wills and requires”;2 whilst commissioners were appointed to try offences committed by others on board the ships of the fleet; but it is alleged that, before the time of Henry I.,3 in the case of indictments for felony, the admiral or his lieutenant sent a capias to the marshal of the court, or to the sheriff, to take the offender, and a procedure is indicated similar to that described by Bracton4 as applicable to cases of homicide where the accused person has taken flight. It is further stated5 that in the same reign (Henry I.) the admirals6 of the north and west were summoned to Ipswich, and ordinances were made, with the concurrence of the temporal lords, respecting the criminal jurisdiction to be exercised by the commanders of the fleets within the seas belonging to the Kings of England.1

The perquisites to which the admiral was entitled, in addition to his pay, were so numerous as to require separate investigation, and “a suit in the Admiralty was originally an inquisition of office for ascertaining and securing to the Lord High Admiral such part of his revenue as consisted of droits,”1 the suit being analogous to the inquisition of office concerning the droits of the Crown, which, being part of the King’s casual revenue, was restricted to the Court of Exchequer.2 The droits or perquisites formerly attaching to the office of Lord High Admiral, as enumerated in their later patents,3 consisted of flotsam, jetsam, ligan,4 treasure, deodands,1 derelicts found within the admiral’s jurisdiction, all goods picked up at sea, all fines, forfeitures, ransoms, recognizances and pecuniary punishments, all sturgeons, whales, porpoises, dolphins, and grampuses, and all such large fishes, all ships and goods of the enemy coming into any creek, road, or port by stress of weather, mistake, or ignorance of the war, all ships seized at sea, salvage, together with a share of prizes.2

Some writers assert that the starting point of the admiral’s jurisdiction in civil suits dates from an ordinance of Edward I., to the effect that “any contract made between merchant and merchant, or merchant or mariner beyond the sea, or within the flood mark, shall be tried before the admiral and nowhere else”;3 but half a century more was spent in efforts by reference to arbitration, and by treaty, to meet the difficulties which arose with foreign sovereigns over cases of alleged piracy and spoil, and it was not until the battle of Sluys, in 1340, gave Edward III. temporary maritime supremacy, that he was in a position to constitute an independent Court of Admiralty with power to deal with causes for which, in the case of a plaintiff foreigner, the Courts of common law afforded no redress.1

The result was that the Admiralty Court acquired jurisdiction in piracy, wreck, capture of royal fish, and obstructions to rivers; all matters previously dealt with by the chancellor, to whom petitions to the King in council were referred, and who, with a view to certifying the King thereon, would either dispose of the whole cause himself, as in the case of piracy, which was deemed specially within his purview,2 or direct an issue, for example, as to piracy or no piracy, or as to the ownership of property and ships spoiled, to the King’s Bench, or to commissioners of oyer and terminer with ordinary juries or merchants and mariners, according as the commissions directed the trial to be secundum legem et consuetudinem regni angliæ, or secundum legem mercatoriam or maritimam.

In the case of piracy, of which suits now became frequent in the Court of Admiralty, the criminal aspect was disregarded, the proceedings being for restitution,3 and no preliminary conviction was required, as was the case where the Lord High Admiral proceeded pro interesse suo, upon his royal grant of bona piratarum.1

In the bundle of documents known as the Fasciculus de superioritate maris2 is one, dated 12 Edw. III., from which it would appear that the King held a consultation with three commissioners as to what laws and ordinances should be observed by his Courts in maritime matters.

The law of the sea, to which the attention of Edward III. was now directed, consisted of those unwritten usages of seafaring men, combined with lingering memories of the so-called law of Rhodes, filtrated through the law of Rome,3 which, in the course of centuries, by the agency of the Consular Courts of the Mediterranean, had crystallised into “customs of the sea.”

The growth of this law, or usages of the ports, was favoured by its recognition from early times as distinct from the law of the land, and, on the downfall of the Western Empire, the so-called barbarians who settled in Gaul, Spain, Africa, and Italy, did not interfere with the existing Roman law, but the legislation took the peculiar turn of becoming personal instead of territorial—that is, each individual, in matters not provided for by the laws of the conquerors, was judged according to the laws and customs of the nation to which he belonged.1 In this way the municipal institutions which had been fostered by the Romans themselves preserved their vitality, and tended to strengthen the force of the local customs, so that they even overrode the law in matters in which they were deemed exclusive; but as time went on difficulty seems to have been experienced in keeping up these cherished customs by oral tradition, so that about the eleventh century a general tendency exhibited itself to reduce them to writing.1

That Courts of the sea followed a law distinct from that of the land is recognised in the Assises of Jerusalem, which date from the reign of Godfrey de Bouillon, the contemporary of Henry I. of England.2 These chapters on maritime law embody the customs of the sea of the Levant, and were drawn up for the benefit of the immigrant Frankish people who followed in the wake of the first Crusade, and established themselves in Syria at the beginning of the twelfth century. The Courts of the sea were presided over by burghers of the same nationality as the litigants. They followed a different procedure to that of the Courts of the land, and they adjudicated in civil disputes on maritime matters3 without regard to the usual mode of proof by wager of battle, which was unknown in the Levant. Where the plaintiff’s were merchants suing other merchants not possessing (like the Genoese, Venetians, or Pisans) the privilege of special Courts of the sea of their own nationality, they were required to sue in the Court of the King, that is, in the “Court of the chain,” which took cognizance of maritime matters and was in the nature of an instance Court of Admiralty with a procedure of its own.

The English municipal institution known as the borough lent its influence to the maintenance of the traditions of a general law in matters of international commerce and navigation. At Ipswich, which was an important maritime borough in the time of Edward the Confessor, a Court sat daily to administer the law merchant between strangers, and between burgesses and strangers, and from tide to tide to administer maritime law to passing mariners. The Domesday of Ipswich is the earliest extant record we posses of any borough Court, with elective officers sitting regularly and administering a customary law of the sea.1

Concurrently with this borough system, which in England transformed the personal union known as the guild into a local association, the communal system was growing up on the other side of the channel, and increased in importance in the western provinces of France after they became subject to the Kings of England. In particular King John, as Duke of Acquitaine, granted a charter to Oleron,2 confirming the liberties of that commune, and under these privileges the probi homines, who assisted the judge in questions arising out of the law of the land, were, in the case of the law of the sea, nautical men (prud’hommes) familiar with the customs of the sea. The Coutumier of the Commune of Oleron1 shows that there was a Court administering the law maritime not only in suits between foreigners and burgesses of Oleron, but in causes where both litigants were foreigners.2 The judgments of this Court were reduced to writing by the prud’hommes of the commune in the twelfth century. They are the earliest extant mediæval sea laws we possess after the ordinances of Trani;3 and it may be assumed that these judgments of the sea, or customs of Oleron, were the outcome of the privileges granted by the Dukes of Guienne to the commune of Oleron prior to the marriage of Eleanora, daughter of William, Duke of Guienne, with Henry II. of England, when the island passed into the possession of the British Crown. Amongst these privileges was that of the prud’hommes of the commune exercising jurisdiction in maritime matters, and adjudicating upon them in the Court of the mayor according to the usages of the sea and the custom of merchants and mariners.4 Some difficulty has been raised as to the time when these judgments of Oleron were introduced into England owing to the terms of the above-mentioned record, known as the Fasciculus, according to which it would seem that part of the object of the consultation which King Edward III. had with the Commissioners was the upholding of the laws and statutes, “which were by the Lord Richard, formerly King of England, on his return from the Holy Land, corrected, interpreted, and declared, and published in the island of Oleron”;5 but whether these judgments were so published as laws at that time or not, it seems clear that, prior to the consultation in question, the judgments of Oleron were in use in the City Courts which administered the law merchant and the law maritime, as two copies exist in the archives of the City of London, the writing of which is as early as the reign of Edward II.1

The judgments of Oleron are inserted in Part C. of the Black Book of the Admiralty as a code of maritime law.2 They are preceded by thirty-nine rules or orders relating to the Admiralty, some of which go back to the reign of Henry I.3 and Richard I.,4 and which were probably translated from Latin into French by the compilers of the Black Book, as French was the language of seafaring men in the time of Edward III.5 After Article 39 in Part C. follow thirty-four articles, of which twenty-four are identical with the most ancient version of the rolls or judgments of Oleron,6 whilst the ten following seem peculiar to the English Admiralty, unless these were deemed part of the laws of Oleron, as seems possible from the record of an appeal from the Mayor’s Court of Bristol1 in 24 Edward III., in which two of these articles would appear to be relied on as part of those laws. The next eighteen articles of the Black Book, lettered D., are stated in the recital in the preamble to be articles of a maritime inquest held at Queenborough in 49 Edward III. (1375) to ascertain and settle certain points of maritime law “as they have been used in ancient times”; and the jurats, in answer to the sixteenth article of inquiry in respect of the right of lodemanage (pilotage), return that “they know of no better advice or remedy, but that if it be from this time used and done in the manner which is contained in the law of Oleron.” The first twenty-four articles of the laws of Oleron as set out in the Black Book do not contain any provision for the punishment of a pilot for failure of duty; but the thirty-third and thirty-fourth articles specially provide for the payment of damages by a pilot, and for his punishment in the event of the loss of the ship through his default.2 It would, therefore, appear that these ten articles were regarded as part of the laws of Oleron in the time of Edward III.1

From the records it would seem that, at this time, the civil jurisdiction in Admiralty included torts and offences on the high seas, on British seas, and in ports within the ebb and flow of the tide, matters of prize,2 contracts within the laws of Oleron1 and causes arising on the seashore and in ports. In 1361 the Council held that, by the common law, felonies, trespasses, and injuries done on the sea should be tried by the admiral by the law maritime, and not according to the common law;2 but the extension of the admiral’s jurisdiction, founded on the theory accepted by the common lawyers at this time, that all matters arising outside the jurisdiction of the common law—that is, outside the body of a county3 —were inside the jurisdiction of the Admiralty,4 led to disputes between the Admiral’s Court and the “Courts of the Seaports” exercising a franchise jurisdiction,5 these disputes being heightened by the irregularities committed by the Court of the Earl of Huntingdon, Admiral of the West;1 and in 1389 and 1391 two statutes were passed defining and limiting in favour of the common law courts, first, the things with which the admiral might meddle, and, secondly, the places to which his jurisdiction might extend. The 13 Rich. II. st. 1, c. 5, refers to the complaints made of encroachments by the admirals and their deputies and of their holding sessions in divers places within and without franchises, impoverishing the common people. It then proceeds to enact that they “shall not meddle from henceforth of anything done within the realm, but only of a thing done upon the sea.” This was followed two years later by the statute 15 Rich. II. st. 2, c. 3, by which it was declared that “the admiral’s court shall have no manner of cognizance, power, nor jurisdiction” . . . “of contracts, pleas, and quereles and all other things done or arising within the bodies of counties as well by land as by water, nor of wreck of the sea,”1 nevertheless “of the death of a man and of mayhem done in great ships being hovering in the main stream of great rivers, only beneath the bridges of the same rivers nigh to the sea (infra primos pontes), and in none other places of the same rivers, the admiral shall have cognizance, and also to arrest ships in the great flotes for the great voyages of the king.”

As it was found that these limitations were not duly observed, the Commons petitioned against the admiral,1 and a statute was passed in 1400 (2 Hen. IV. c. 11) providing a remedy for the party aggrieved by proceedings against him in the Admiralty Court, in cases not clearly within the jurisdiction of that Court, not only against the plaintiff but against the judge and the officers of the Court, by action in the common law courts with double damages; the statute further enacted that the statutes of Richard “be firmly holden and kept and put in due execution.”2

The leading idea in these statutes is the distinction between things done in the realm and on the high seas, and this distinction gave rise to the determined efforts on the part of the common law courts, persisted in through centuries, to prevent the Admiralty Court taking cognizance of contracts made in this country relating to maritime matters, and dealing with them according to the civil law so as to encroach upon the jurisdiction of the tribunals at Westminster and interfere with the institution of trial by jury. Two causes operated, the one to oppose, and the other to aid, the efforts of the Admiralty Court to retain its jurisdiction. The opposition arose from the strong dislike of the people at large to proceedings savouring of the civil law in disregard of the institution of trial by jury; the favouring cause lay in the technical process of the common law courts hampering their procedure and limiting their jurisdiction, so that in maritime cases there was a tendency to resort to the Admiralty Court to obtain a speedy and satisfactory remedy.

As a magistrate, the judicial powers of the Lord High Admiral as defined by patent3 were extravagantly large, and included the power to take cognizance of all causes, civil and maritime, within his jurisdiction; to arrest goods and persons; to preserve public streams, ports, rivers, freshwaters and creeks whatsoever within his jurisdiction, as well for the preservation of the ships as of the fishes; to reform too strait nets and unlawful endings and punish offenders; to arrest ships, mariners,1 pilots, masters, gunners, and any other persons whatsoever able and fit for the service of the ships, as often as occasion shall require and wheresoever they shall be met with; to appoint vice-admirals, judges, and other officers durante bene placito; to remove, suspend, or expel them and put others in their places as he shall see occasion; to take cognizance of civil and maritime laws and of death, murder, and mayhem.2

The patent of the Lord High Admiral also specially gave him the power to act by deputy, and according to the opening paragraph of the Black Book of the Admiralty,1 “When one is made admiral, he must first ordain and substitute for his lieutenants,2 deputies, and other officers under him, some of the most loyal, wise, and discreet persons in the maritime law and ancient customs of the seas3 which he can anywhere find, to the end that by the help of God and their good and just government the office may be executed to the honour and good of the realm”; and according to the documents connected with the Admiralty of Sir Thomas Beaufort, 13 Hen. IV.:4 “In the first place the lieutenant-general shall make oath to the high admiral to do right and due justice to all manners of parties complaining in the court of admiralty, as well to plaintiffs as to defendants, without having to do more for one party than the other, and he ought to make summary and hasty process from tide to tide, and from hour to hour, according to the law marine and ancient customs of the sea, without observing the solemnity of the law, and without mixing law civil with law maritime there where it may be equitable, knowing the right of the parties.” He is further directed to imprison or otherwise punish those putting themselves in opposition to the Admiralty, to appoint deputies, surveyors, and guardians of the office of Admiralty for all the coasts of the sea,5 and hold inquests upon the coasts of the sea touching the law marine, and if there is an Admiral of the North and another of the West, they shall each have a lieutenant-general.

In 1360 occurs the first intimation of the erection of that central maritime tribunal which Edward III. proposed to create, for when John Pavely was appointed capitaneus et ductor of the fleet with disciplinary powers, he acquired, in addition, the right of holding pleas secundum legem maritimam.1 Shortly afterwards in the same year, when Sir John Beauchamp was made Admiral of all the fleets, his patent contained a further power to appoint a deputy in causis maritimis;2 and the judge held his place by patent from the Lord High Admiral, but when there was no admiral, by direct commission from the Crown.3 The earliest extant patent appointing a judge to hear cases in the Admiralty Court, is in the time of Edward IV. (1482). He is empowered “ad cognoscendum procedendum et statuendum de et super querelis causis et negotiis omnium et singulorum de iis quæ ad curiam principalem Admirallitatis nostræ pertinent.”4

In 1509 and subsequent years, Henry VIII. made treaties with France providing for special tribunals to speedily try piracy claims, which had become very frequent. In England, the Earl of Surrey (Lord High Admiral), Cuthbert Tunstall (Master of the Rolls), and Christopher Middleton (judge of the Admiralty Court) were appointed judges. In the commission (1519) appointing them5 the procedure is directed to be, in accordance with the terms of the treaty between Henry VIII. and the French King, speedy and informal, and the same words are employed to indicate this procedure in the patents of the Lord High Admiral of this period. Similar terms are used in the so-called Valencian Regulations, in which the Consuls of the Sea were directed to decide the causes brought before them “briefly, summarily, and forthwith, without the noise or formality of a judgment, looking solely to the truth of the facts, according as has been accustomed to be done after the usage and custom of the sea”;1 and Mr. Justice Story says2 “that the Admiralty of England, and the maritime Courts of all the other powers of Europe, were formed upon one and the same common model, and that their jurisdiction included the same subjects as the Consular Courts of the Mediterranean . . . described in the Consolato del Mare,3 these consular Courts proceeding according to the forms of the civil law, and being regulated by the ancient customs of the sea.”

According to the Valencian Regulations included in the Consolato del Mare, as published in 1494, the jurisdiction of the consuls of the sea extended to “all questions concerning freight, damage to cargo laden on board ship, mariners’ wages, partnerships in shipbuilding, sales of ships, jettison, commissions entrusted to masters or to mariners, debts contracted by the master who has borrowed money for the wants or necessities of his vessel, promises made by a master to a merchant, or by a merchant to a master, goods found on the open sea or on the beach, the fitting out of ships, galleys, or other vessels, and generally all other contracts which are set forth in the customs of the sea.”1

In exercising jurisdiction “over all contracts which had to be determined according to the usage and custom of the sea,” the Court,2 under the Valencian Regulations, allowed oral proceedings up to and including judgment, and in the case of mariners’ wages and bonds they always were oral; but in the case of claims propounded in writing, a copy was transmitted by the officer of the Court to the defendant to be answered within a fixed term either by way of defence or counterclaim, unless the defendant objected to the jurisdiction, in which case, after consultation, the consuls either overruled the objection or remitted the parties to the competent judge; and if the defendant was a stranger the plaintiff could require security to meet the judgment, otherwise the defendant was liable to imprisonment, and the consuls were themselves liable to satisfy the judgment if they had failed to take security and the defendant absented himself. If the cause proceeded, the plaintiff replied or answered the counterclaim, and for the conduct of these proceedings assignations were made every three or more days as convenient. An oath that the action or defence was not based on false pretences could, if demanded, be then put to either party.1 In respect of matters denied, a first delay of ten days was allowed for proof, or four times that period if necessary, that is, four delays from ten to ten days, if an oath was taken that the fourth delay was not for the purpose of protracting the cause, and a reasonable time was granted if required for the production of witnesses who were at a distance. When these periods had elapsed, and the evidence had been published, the consuls, subject to exceptions to the character of the witnesses produced, and subject to the production of written evidence, appointed a day to give judgment, and caused the pleadings and proceedings to be read to mercantile experts, viz., the prud’hommes of the merchants, and to maritime experts, viz., the prud’hommes of the sea, and if their advice was the same they proceeded to pronounce sentence; but if, after the two sets of prud’hommes had consulted together, they did not agree, the consuls decided according to the written customs of the sea under the advice of the prud’hommes of the sea.2 There was no condemnation in the costs of the proceedings unless (after ad 1460) one of the parties had been guilty of bad faith, and the judgment was conclusive unless the party aggrieved appealed within ten days, either orally or in writing, to the judge of appeal to whom the proceedings were transmitted. After taking counsel with a different set of prud’hommes of the merchants and of the sea, the judge of appeal within thirty days gave a final judgment in writing (whether the proceedings were oral or not) and condemned the appellant in the respondent’s costs of the appeal if he confirmed the sentence of the consuls.

Interlocutory proceedings could be carried on before one consul, but a decree or order required to be given by both. After ad 1334 the consular judges acquired the power of enforcing their sentences, and the party condemned had ten days within which to pay or disclose unencumbered moveable goods, otherwise the Court took possession of moveable goods designated by the other party, whether seagoing vessels or other chattels, and sold them, the successful litigant being paid the amount due to him out of the proceeds, together with the costs of execution, on his finding sureties to return the money in case of a prior claim or better right being established; but if the successful party swore that he could not find sureties, proclamation was made that anyone having any claim to the thing sold or the proceeds, should prove his claim within thirty days, and if no claimant appeared the sureties were dispensed with. If the condemned party had no moveables, but had immoveable property, a request was made by the consuls to the competent judge to levy upon such property according to the form of the laws of the city or the custom of the place where the property was situated.

At this period the customs of the sea, as collected in the book of the Consulate of the Sea of Barcelona in 1494, together with the Gotland sea laws,1 called the maritime laws of Wisby,2 and the judgments of Oleron,3 formed a continuous chain of maritime law from the ports of the Baltic, through the North Sea, and along the coast of the Atlantic to the eastern shores of the Mediterranean, and the practice detailed above in the case of the Valencian Regulations may be assumed to indicate generally the mode in which suits in maritime matters were conducted on the continental seaboard. In England the records of the High Court of Admiralty do not begin until 1524,1 and details of the early practice are not forthcoming; but it seems probable that the Praxis Curiae Admiralitatis Angliæ of Clerke2 deals with a state of things that had been in force for a considerable period before the first edition of his work. He states that the actions instituted in the Admiralty Court were commonly between merchants of this country, or foreigners, or masters of ships and mariners, and that all the proceedings in civil and maritime causes were summary.3 The action, he says,4 commenced with the judge’s warrant obtained by the plaintiff, made out in the name of the Lord High Admiral,5 drawn up by the registrar and directed to the marshal to arrest the defendant6 and keep him in custody until he appeared on the day and place specified before the Lord High Admiral or his deputy the judge. The warrant was executed by the marshal, if the defendant resided in London or the suburbs, otherwise by an officer of the city, town, or village where he dwelt, and the defendant was released on giving security by bond for his appearance, the amount for which the sureties were liable being fixed by the sum for which the action was instituted, e. g., five pounds. The warrant was then returned to the judge indorsed with the person’s name who executed it, together with the day and place. On the day appointed the defendant, or his proctor, appeared with his sureties, but if without the sureties the defendant was imprisoned during the pending of the suit, or until he gave security, or unless his oath was accepted. A proctor was then appointed, as in ecclesiastical causes, to carry on the cause, with power to produce sureties and to obtain same from the adverse party. The proctor of the plaintiff exhibited his proxy in writing,7 and if the defendant had not appeared accused him of contumacy. The defendant was then called three times by the marshal, and on non-appearance the judge decreed the penalty of the bond and ordered the defendant into custody until he had satisfied the penalty, of which the plaintiff was allowed a reasonable sum in consideration of the suit being retarded. If the plaintiff did not appear, the defendant or his proctor applied to have the case dismissed with costs and his bond cancelled. The judge then, after the plaintiff had been called three times, either decreed accordingly, or that the plaintiff should not be heard until the costs were paid, or allowed the case to stand over to another court day, or (usually) summoned the plaintiff for a convenient day on pain of final dismissal, with costs. If both parties appeared, the defendant claimed a libel with sureties to be given by plaintiff, and the judge assigned the next court day for both parties to bring in their sureties, the defendant’s sureties being jointly and severally bound by bond to the judge or to the registrar for the appearance of the defendant as often as his presence was required until judgment, for the payment of costs, to confirm the acts of the proctor, to submit to the jurisdiction of the Court, renouncing all privileges and exemptions, and acknowledging themselves indebted to the plaintiff in the sum for which the action was brought, or such smaller sum as the judge fixed, conditioned that if the plaintiff cast the defendant, the defendant would pay the principal sum and taxed costs.1 The plaintiff was required to give sureties that he would prosecute the suit, and if cast pay the defendant’s costs, that he would ratify the acts of his proctor, and appear personally as often as required. The proctors of both parties could protest against the sureties produced by the opposite side as unknown and insufficient, and the principal party entered into a bond, usually in double the sum, in respect of all the matters for which his sureties were bound, and undertook to indemnify them. The plaintiff’s proctor gave in the libel, and asked for a decree, that is, a citation, for the defendant to answer the articles of the libel. If the defendant absconded, his sureties were called upon to produce him under the penalty of their bond, which the judge could either enforce or require further steps to be taken to give the defendant notice of the citation. Similar steps could be taken against the sureties of the plaintiff if he did not proceed. The grant of a commission to examine witnesses within or without the kingdom was applied for if necessary, and at the discretion of the judge the oath of calumny could be administered to either of the parties. The principal party and his witnesses were produced and sworn, as in ecclesiastical causes, to undergo their examination at the time appointed by the judge, under a pecuniary penalty, such as fifty shillings or five pounds, according to the gravity of the case. If a witness on being tendered his expenses refused to appear, a decree for his imprisonment until he should appear was issued, and the judge could commit the proctor, the principal party, or a witness for contempt. Matters of defence and of exception were then proceeded with, and the suppletory oath was usual in maritime causes. After sentence the proctor of the successful party applied to have the sentence put in execution and the costs taxed, but if the defendant had absconded the monition would be addressed to the bail to pay the thing adjudged and costs within a given time or to be taken into custody; or if the defendant lived beyond the sea or had no fixed domicile, so that he could not be admonished, the judge could cite the bail to show cause why the sentence should not be put in execution.

By Title 24 of Clerke’s Praxis, if the defendant could not be personally arrested in a civil cause by reason of being out of the kingdom, or because he had absconded, and he had any goods, wares, ship, or part of a ship, or vessel upon the sea, or within the flux and reflux of the sea, a warrant could be taken out to arrest such goods or such a ship belonging to the defendant debtor, in whose hands soever they were; and upon the attachment of such goods the debtor was cited specially in respect of the goods, and generally all others who had or pretended to have any right to, or interest in, the said goods, to appear on such a day to answer the plaintiff in a certain maritime and civil cause.1

The marshal or other officer of the judge, who arrested the goods, at the same time cited the defendant and all others having or pretending to have any right or interest in the goods to appear, and indorsed a return of the day and place of execution, together with a schedule of the goods arrested.

Proclamation was then made three times for the persons specially and generally cited. On their non-appearance, the judge pronounced them contumacious and declared them to have incurred the first default.

In the case of arresting goods of the debtor in the possession of others, or a debt owed by another person to the debtor, the proceedings were carried on between the plaintiff and the person in whose possession the goods were, as in an ordinary maritime cause for debt up to the fourth default, when, the plaintiff having declared upon and by what contract the debt arose, the goods arrested were by decree directed to be appraised, and the plaintiff, after giving security to answer any person or persons laying any claim to the goods so recovered within the term of the following year, was put in possession of the goods to the value of his demand, or, if not sufficient to answer the whole, as far as they would go towards it.2

To prevent the plaintiff being put in possession of the goods and to obtain their release, the defendant or a third person, to whom the goods arrested belonged, must appear and give security before the first decree in contumacy was pronounced. The goods were then returned to the defendant or the intervener, and the action proceeded as in an ordinary maritime cause for debt. If goods had been taken by enemies or pirates, and afterwards brought into this kingdom, or goods were taken possession of by another, or goods consigned from an agent abroad were detained by another, the owner could obtain a warrant to arrest the goods as his own proper goods, citing the detainers and all others pretending to any interest in them to answer in a civil and maritime cause. The warrant was then executed and returned, and after security had been given by the owner, and the goods had been appraised, they were on the fourth default adjudged to the owner as his own proper goods, and he was put in possession of them. If the goods arrested did not belong to the plaintiff, the owner could plead his possessory right and apply to have the arrest taken off. If the plaintiff justified, the question of the right of possession was tried and possession decreed by a definitive sentence to the person proving his right to the possession; but the party aggrieved or a third person intervening could, on giving security, claim in petitorio, and, proceeding as in other maritime causes, prove his interest in the goods and obtain a decree with costs, the goods in the meantime, whilst the proceedings in possessorio or in petitorio were going on, being sequestrated by the Court, and, if perishable, appraised and sold, the proceeds being handed to the successful party.

In the case of goods arrested by several persons, but not sufficient to answer their respective debts, the creditor first commencing the proceedings was preferred, and if anything remained over it went to the second.

Appeals lay from inferior judges or vice-admirals to the Lord High Admiral and his High Court of Admiralty, and an appeal lay to the King’s Majesty and the Court of Chancery1 from a definitive sentence of the judge of the Admiralty Court, or from an interlocutory decree having the force of one, the application to be made either at the time vivâ voce before the judge, or within ten days before a notary public.

The respondent was then arrested until he gave sufficient bail for his appearance, whilst the judge, the registrar and all others in general were inhibited from further proceeding with the cause. The appellant and respondent then gave bail, as in the Court below, to abide the decree of the Court, to pay costs and confirm the acts of the proctor, and the instrument of appeal was proceeded with as in ecclesiastical causes, substituting imprisonment or pecuniary punishments for sentence of excommunication. If the appeal was not prosecuted within the term allowed, or if in the Court of first instance the proceedings were not terminated within three years, the Court of Appeal or the judge discharged the respondent or the defendant from further attendance with costs.

The mode of exercising jurisdiction in the Admiralty Court was, therefore, “in the manner familiar to . . . all Courts regulated by the civil law (that is) either by an arrest of the person of the defendant if within the realm, or by the arrest of any personal property of the defendant within the realm, whether the ship in question or any other chattel,”1 that is to say, the procedure described by Clerke recognises no distinction between actions in rem and actions in personam, for where the person against whom a warrant was issued could not be found, or lived in a foreign country, and goods were seized (Roscoe’s Ad. Prac. p. 40) by the Court to answer the debt, these goods were not specific goods subject to a lien; but the seizure was made for the purpose of compelling appearance, in a way analogous to the proceedings by foreign attachment under the charters of the cities of London and Dublin. Hence if a foreigner owed money in England, and any ship of his came into a British harbour,1 or any goods of his were found in these realms, they were seizable by his creditors, the process of attachment going not only against goods in the actual possession of himself, his factors or agents, but also against those in the hands of his debtors; but the process was a proceeding in rem in the sense that if the defendant did not appear the “suit could go on without in any way touching the person,”2 and that by the operation of the judgment the defendant was deprived of his property in the chattel,3 unless he appeared, in which case the proceedings went on in the ordinary course as an action in personam.4

During the next few years of the reign of Henry VIII. the Admiralty Court acquired considerable addition to its power in civil suits, for though the trial of criminal causes was withdrawn in 1537,1 there was a stronger assertion by the admiral, in virtue of the royal prerogative, of a jurisdiction in maritime and commercial matters,2 which was expressed in plain terms in his patent, the usual limitations under the statutes of Richard II. being omitted and the clause inserted “statutis in contrarium non obstantibus.” In 1541, by statute 32 Hen. VIII. c. 14, cognizance was expressly given to the Admiralty to try summarily questions of charter-parties and affreightments arising from the negligence of mariners, including the trial of cases on contracts made abroad, bills of exchange, insurance, average, freight, non-delivery of cargo, damage to cargo, negligent navigation, and breach of warranty of seaworthiness.

In the next reign (Edward VI., 1547), the letters patent of the admiral include “any thing, matter, or cause whatsoever done or to be done as well upon the sea as upon sweet waters and rivers from the first bridges to the sea throughout our realms of England or Ireland or the dominions of the same.”

In 1570 the Admiral complained that the common law courts were encroaching, and Queen Elizabeth wrote to the Mayor and Sheriffs of London that this was “very strange” and that they were to forbear from intermeddling with causes arising out of contracts upon and beyond the seas.1 In 1575 a special commission was issued to the Admiralty empowering it to hear cases on charter-parties, bills of lading, bills of exchange, insurance, freight, bottomry, necessaries for ships and contracts binding ships, others being prohibited from taking cognizance of such pleas, and an agreement2 is alleged to have been come to between the Admiralty Court and the common law judges as to the limits of jurisdiction, according to which, after sentence pronounced by the Admiralty Court, no prohibition was to be granted at common law unless applied for within next term, and the judge of the Admiralty Court was to be allowed to appear and show cause against the prohibition, and further that the judge of the Admiralty, according to ancient order, as hath been taken by King Edward I. and his Council, and according to the letters patent of the Lord High Admiral for the time being, and allowed by other kings of the land ever since, and by custom time out of memory of man, may have and enjoy cognition of all contracts and other things, arising as well beyond as upon the sea, without let or prohibition, and the Admiralty Court was to have cognizance of breaches of charter-parties made to be performed upon and beyond the seas according to 32 Hen. VIII. c. 14, though such were made within the realm.1

In 1585, on the death of the Earl of Lincoln, the Lord High Admiral, the question arose whether the judge of the Admiralty Court could sit and decide cases during the vacancy: Queen Elizabeth was advised that he could, as the judge was appointed by letters patent from the Crown, so that he was judge of the Admiralty “be there an admiral or no admiral;” but the Queen, ex abundanti cautelâ, issued a special commission.2

In 1586 the power of the Court of the admiral was strengthened by 28 Eliz. c. 11, which enacted that all the offences therein mentioned “as thereafter should be done upon the main sea, or coasts of the sea, being no part of any county, and out of any haven or pier, shall be tried by the Lord High Admiral;” but the power exercised by the admiral was regarded by the nation as a dangerous unconstitutional usurpation, and in particular in respect of contracts the right of proceeding by process in personam was resisted, so that the jurisdiction asserted by the Admiralty over claims as to the supply of necessaries and materials to ships and over charter-parties was steadily undermined, for unless the contract was actually made or the goods actually supplied upon the high seas, a prohibition issued, as in Cradock’s Case,3 in the reign of James I., where a prohibition was granted on the ground that the suit in personam in the Admiralty by a material man in respect of necessaries supplied to a ship was in respect of a contract made at 5, Katherine’s Stairs, London, in the body of a county, though by the statute of 13 Richard II. the admiral could only meddle with things upon the sea. The rivalry, amounting to jealousy between the Common Law Courts and the Admiralty, was accentuated by the hostility of Sir Edward Coke, who evinced, with considerable show of reason, a dislike to both Chancery and Admiralty. In the controversy, though it may be open to question whether the original statutes of Richard were not directed principally to torts, they were construed literally by Coke, and in his answers to the complaints addressed to the Crown early in the reign of James I. by the Lord High Admiral, against the restraints imposed by the Common Law Courts upon his jurisdiction, Coke cites a number of authorities1 to show that charter-parties, policies of insurance and maritime contracts, though of foreign origin, were not within the Admiralty jurisdiction, and lays down a rule to determine whether or not any given contract is within the Admiralty jurisdiction, viz.: whether the Common Law Courts have exercised, and can exercise, jurisdiction over the same contract, that is to say, whether the party had a common law remedy. The civilians vainly urged, on behalf of the Admiralty, that, consistently with the statutes of Richard, its jurisdiction extended (1) over torts and injuries committed upon the high seas, in ports within the ebb and flow of the tide, and in great streams below the great bridges, that is, that the jurisdiction should depend upon locality; (2) over all maritime contracts arising at home or abroad, that is, that the jurisdiction should depend upon subject-matter; (3) over matters of prize and its incidents; but the Courts of Common Law held that the words “infra primos pontes,” in respect of the water of rivers, applied only to death or mayhem, and not to actions;2 that the words “upon the sea” referred to the water below low-water mark when the tide was out, and up to high-water mark when the tide was in (infra fluxum et refluxum maris), and divided the jurisdiction between the admiral and the common law accordingly, that is, on the sea coast, the water between high and low water mark, when the tide is in, is not in the body of a county,1 and, whilst not attempting to prohibit the Court of Admiralty with reference to wrongs committed on the high seas, they enforced by prohibition2 the construction of the statutes of Richard, so as to limit the jurisdiction of the Admiralty to contracts made upon the high seas, to be executed upon the high seas, in respect of matters in their nature maritime, and even as to prize the exclusive authority of the Admiralty was not finally admitted until the case of Lindo v. Rodney.3

Coke further attempted to destroy the Admiralty jurisdiction over contracts made beyond the seas by alleging that they were cognizable by the Court of the Lord High Constable and Earl Marshal (Court of Chivalry),1 but it would seem that the judicial functions of this Court were limited by stat. 13 Rich. II. c. 2, to contracts touching deeds of arms and war, and the Admiralty Court succeeded in maintaining its right to entertain suits to enforce the judgments of foreign Admiralty Courts, and to proceed in rem upon bottomry bonds executed in foreign parts.2

Coke retired from public life in 1629, and, though a heated contest went on with respect to prohibitions between the Admiralty Court and the common law judges, a compromise was effected in 1632 by the concurrence of the twelve judges of England to certain resolutions, which contained a very favourable interpretation of the extent of the Admiralty jurisdiction, and which, after adoption by the Privy Council, were approved by the King.3 They were to the effect that:—“(1) If suit shall be commenced in the Court of Admiralty upon contracts made, or other things personal, done beyond the seas, or upon the sea, no prohibition to be awarded. (2) If suit be before the admiral for freight, or mariners’ wages, or for breach of charter-parties, for voyages to be made beyond the seas; though the charter-party happen to be made within the realm, so as the penalty be not demanded, a prohibition is not to be granted: but if the suit be for the penalty; or if the question be, whether the charter-party were made or not, or whether the plaintiff did release or otherwise discharge the same within the realm; this is to be tried in the King’s Courts at Westminster, and not in his Court of Admiralty. (3) If suit be in the Court of Admiralty for building, amending, saving, or necessary victualling of a ship, against the ship itself, and not against any party by name, but such as for his interest makes himself a party, no prohibition is to be granted, though this be done within the realm.1 (4) Although of some of those causes arising upon the Thames beneath the first bridge, and divers other rivers beneath the first bridge, the King’s Courts have cognizance; yet the Admiralty has jurisdiction there, in the points specially mentioned in the statute of 15 Richard II. And also, by exposition of equity thereof, he may enquire and redress all annoyances and obstructions in these rivers, that are any impediment to navigation or passage to or from the sea; and also may try personal contracts, or injuries done there, which concern navigation upon the sea, and no prohibition is to be granted in such cases. (5) If any be imprisoned, and upon habeas corpus brought—if it be certified that any of these be the cause of his imprisonment, the party shall be remanded.”

During the Commonwealth the office of Lord High Admiral was abolished and the above resolutions disregarded; but it was subsequently found convenient to define the jurisdiction, and, accordingly, an ordinance (to continue for three years), in 1648, after referring to the public inconvenience to trade through “the uncertainty of the jurisdiction in maritime causes,” enacted “that the Court of Admiralty shall have cognizance and jurisdiction against the ship or vessel with the tackle, apparel, and furniture thereof, in all causes which concern the repairing, victualling, and furnishing provisions for the setting of such ships or vessels to sea, and in all cases of bottomry, and likewise in contracts made beyond the seas concerning shipping or navigation or damages happening thereon, or arising at sea in any voyage; and likewise in all cases of charter-parties, or contracts for freight, bills of lading, mariners’ wages, or damages in goods laden on board ships, or other damages done by one ship or vessel to another, or by anchors, or want of laying of buoys, except always that the said Court of Admiralty shall not hold pleas, or admit actions upon any bills of exchange, or accounts betwixt merchant and merchant or their factors.”1

This ordinance was made perpetual in 1654, and three judges were appointed to preside over the Court;2 but it fell with the other Acts of the Commonwealth upon the restoration of Charles II.

The common law judges seem to have discovered that the Crown and the Admiralty had gained a decided advantage in the interpretation put upon the statutes of Richard II., and accordingly the above resolutions were treated as not being a correct exposition of those statutes, and also as a nullity by reason of their not being an adjudication on any particular case before the Court.3 In spite of the presentation of numerous petitions in support of the Admiralty jurisdiction and of the efforts of the judge of the Admiralty Court, Sir Leoline Jenkins,4 in the reign of Charles II., the effect of the denial of the authority of these resolutions, coupled with the refusal to allow parties to proceed in Admiralty who were summoned at common law to answer as to maritime matters, and the issue of prohibitions to the Admiralty Court against proceeding on any contract made on land to be performed at sea, or made at sea to be performed on land—that is, not wholly and exclusively done on the sea—so limited the actual jurisdiction in Admiralty at this time that Sir Matthew Hale says5 that it “is confined by the laws of this realm to things done upon the high sea only: as depredations and piracies upon the high sea, offences of masters and mariners upon the high sea; maritime contracts made and to be executed upon the high sea; matters of prize and reprisal upon the high sea; but touching contracts, or things made within the bodies of English counties, or upon the land beyond the sea,1 though the execution thereof be in some measure upon the high sea—as charter-parties, or contracts made even upon the high sea—touching things that are not in their own nature maritime, as a bond or contract for payment of money, &c., these things belong not to the admiral’s jurisdiction; and thus the common law and the statutes of 13 Rich. II. c. 5, 15 Rich. II. c. 3, confine and limit their jurisdiction to matters maritime, and such only as are done upon the high sea.” On the other hand, Chief Justice Holt speaks of the common law as “too severe against the Admiralty.”2

Another mode of ousting the Admiralty jurisdiction in contract was that of putting down by prohibition the practice of the Admiralty Court, which, in order to get cognizance of a cause, feigned that contracts really made on land were made at sea. This was in fact only imitating the fictitious venue introduced at common law to remove the technical difficulty, which embarrassed the common law Courts, arising from the necessity of laying a venue to every action. In this way a concurrent jurisdiction was obtained by the Courts of common law in all cases of marine contracts as the conusance of contracts and other things done upon the sea was “made triable at the common law, by supposing the same to have been done in Cheapside,”3 and as the locality of the matter or contract was not essential to the merits, the fiction was not traversable. Blackstone (in whose time the jurisdiction in Admiralty, besides being excluded within the body of a county, only extended to causes of action, in their nature maritime, arising on the high seas)4 observes5 that “it is no uncommon thing for a plaintiff to feign that a contract, really made at sea, was made at the Royal Exchange, or other inland place, in order to draw the cognizance of the suit from the Court of Admiralty to those of Westminster Hall.”

In the exercise of the jurisdiction in prize causes, the great reputation of Lord Stowell,1 who was appointed judge in 1798, drew public attention to the Admiralty Court.2 Still, in respect of the instance Court, Browne, 3 writing in 1802, is driven to admit that the Admiralty jurisdiction in contract was limited to marine contracts, that is, contracts (1) made upon the sea, (2) whose consideration was maritime,4 and (3) not ratified by deed, nor under seal; and, with reference to personal contracts, he says that “at present the Admiralty acts only in rem, and no person can be subject to that jurisdiction but by his consent, expressed by his entering into a stipulation.” He then refers to Keble5 for the statement “that without a stipulation the Admiralty has no jurisdiction at all over the person”; and he quotes Godbolt6 that “the first process in the Admiralty is against the ship and goods, and the libel must not be against the person.” He adds the observation of Mr. Justice Buller—who accounts for the Admiralty being allowed to proceed on an hypothecation bond sealed abroad by the fact that the common law could give no remedy, there being no personal covenant for the payment of the money—that “in the struggles between the Court of Admiralty and the common law Courts respecting the extent of their respective jurisdictions, the common law Courts have said, that if the parties have bound themselves to answer personally, the Admiralty cannot take cognizance of the question”;1 and in a suit in the Admiralty by one part-owner to oblige another to sell a ship, Chief Justice Lee said (on an application for a prohibition), “that Court has no such power, for that would be proceeding in personam.”2 Browne supplements this by further admitting3 that “the Admiralty has in a great measure dropped its claim to taking cognizance of charter-party and freight, and suits by material men, and almost all other proceedings upon contract, except those for recovery of seamen’s wages, or enforcing bottomry bonds”; in a word, it may be said that personal contracts had ceased to be cognizable in Admiralty, and that the principle contended for by the civilians (viz., that, in contract, the jurisdiction ought not to depend upon locality, nor upon the object affected, but upon the subject-matter, that is, whether the contract, though made upon land, or affecting the person, was in its nature maritime) had essentially failed;4 and Browne sums up5 the jurisdiction in the instance Court of Admiralty at the beginning of the nineteenth century as “confined in matters of contract to suits for seamen’s wages, or those on hypothecations; in matters of tort to actions for assault, collision, and spoil; and in quasi-contracts to actions by part-owners for security, and actions of salvage”; but where the ship had been sold for other claims, and the money was in the registry, so that the master could not raise money on the bottom of the ship to satisfy demands which had been legally incurred, the practice had grown up of allowing the claims of material men and shipwrights, and even of the master himself, to be paid out of the proceeds.6

A decision, however, of the Privy Council,1 in the year 1835, declared this practice illegal, and so took away the last vestige of Admiralty jurisdiction in the case of necessaries. From that date the material man, who in early times could maintain a suit against the ship, had no longer any locus standi in the Admiralty Court. His only remedy was at common law, and there, unlike the mortgagee, whose position was that of a secured creditor, the material man could proceed only against the shipowner, not against the ship.2

These restrictions on Admiralty jurisdiction, and the inconvenience caused to litigants by the absence of any original jurisdiction over contracts under seal—so that the Court was unable to entertain questions of title or of mortgage, with the result that though the ship was under arrest or its proceeds in the registry, the rights of mortgagees were often adjudicated upon in a different cause in a different Court, together with the difficulties arising out of claims for salvage, questions of damage, demands for towage, which, if relating to matters within the body of a county were solely cognizable in the Courts of Common Law, and if proceeded with in the Admiralty Court subjected that Court to prohibition—led, in 1840,1 to the passing of the first of the Admiralty Court Acts, 3 & 4 Vict. c. 65, the object of which was to give jurisdiction in civil matters to the Admiralty in the body of a county, prevent the Court being prohibited, and by restoring the ancient jurisdiction of the Admiralty, give litigants the option of proceeding by the more summary process of that Court, instead of compelling them to resort to an action at law.

PART III.

PROCEDURE

• 31. The Older Modes of Trial.James Bradley Thayer.
• 32. The King’s Peace in the Middle Ages.Sir Frederick Pollock.
• 33. The Methods of the Royal Courts of Justice in the Fifteenth Century.Hubert Hall.
• 34. Criminal Procedure, from the Thirteenth to the Eighteenth Century.Sir James Fitzjames Stephen.
• 35. The Story of the Habeas Corpus.Edward Jenks.
• 36. The History of the Register of Original Writs.Frederic William Maitland.
• 37. An Action at Law in the Reign of Edward III.Luke Owen Pike.
• 38. The Development of Oral and Written Pleading.William Searle Holdsworth.
• 39. The Historical Development of Code Pleading in America and England.Charles McGuffey Hepburn.
• 40. A General Survey of the History of the Rules of Evidence.John Henry Wigmore.

[1 ]This essay forms the introductory chapter of the third edition of Mr. E. S. Roscoe’s “Admiralty Jurisdiction and Practice,” 1903, pp. 1-61 (London: Stevens and Sons).

[2 ]Barrister-at-law, London; M. A., LL. D., London University 1870.

Other Publications: Analysis of Ortolan’s Roman Law, 1876; Institutes of Gaius and Justinian, 1882.

[3 ]The probable root of the word “admiral” is to be found in the Arabic “amir-al-baha,” that is, commander of the sea. The first portion of the compound word, viz. “amir” or “emir,” a commander, was applied in the tenth century to the officer in the Eastern Empire (Gibbon’s Decline and Fall, ch. 53), representing the præfectus classis of earlier times at Rome. In the twelfth century, when maritime commerce was developed owing to the link between Europe and Asia resulting from the Crusades, the word “amiral” travelled along the shores of the Mediterranean to Western Europe, where it was adopted with slight variations by most seaboard continental nations; and towards the end of the next century, when England and Flanders began to share in the trade with the Levant, the word became naturalized in England as “amyrel” or “admyrall,” or softened by doubling the m: “As when the mast of some tall ammiral” (Milton). In the kingdom of Aragon the title of “admiral” does not appear to have superseded that of Captain of the Fleet (Capitaneus Armatæ) until about 1354; but it seems to have been introduced in the neighbouring kingdom of Castile somewhat earlier, and Alphonso X. explained it thus: “The chief of all those who compose the crews of the vessels fitted out for war is called the Admiral, and he has over the fleet, which is the main body of the Armada, or over a squadron which may be detached, the same power as the King himself if he were present.” See Black Book, Roll Series, vol. ii. Introd. p. lxiii.

[4 ]Comyns, Dig., tit. Admiralty (A). The words custos, for admirallus, and custodia for admirallitas, are used in earlier and later times in the records as equivalent terms.

[1 ]William de Leybourne was styled “Admiral of the Sea of the King of England” in a treaty between the envoys of the English King and Guy, Count of Flanders, made at Bruges, 15 Edw. I. See Clowes’ Hist. of Navy, vol. i. p. 141; Com. Dig. Ad. (A). The first mention of the admiral in our printed law is in 8 Edw. II. See Black Book, Rolls Series, Introd. vol. i. p. xlvi.

[2 ]Richard Fitzallan. Earl of Arundel and Surrey, 10 Richard II. See Beawes’ Lex Mercat. (1813), 6th ed. p. 400.

[3 ]See the list, according to Sir Henry Spelman, down to James II., given in the Appendix to Godolphin’s Admiral Jurisdiction, 2nd ed. (1685), pp. 215-230. “In early times there were occasionally more Lord Admirals than one; not, however, of the same part of the coast; but one from the Thames northward, and one southward, . . . but not interfering with each other. Which, however, was the most ancient form of executing this office, whether by one officer or by several, is mere conjecture . . . but, however that may be, I am not aware that more than one Lord Admiral has ever been appointed since the time of Henry VIII., and the statute (31 Hen. VIII. c. 10) only speaks of the Lord Admiral,” per Sir John Nicholl in The King (in his office of Admiralty) v. 49 Casks of Brandy (1836), 3 Hagg. 257, at p. 279. From a petition presented in the reign of Henry V. (1416), it seems that it was customary in the fifteenth century for merchantmen sailing in consort to elect the master of one of the vessels as the “admiral” for the voyage; and at the present day the senior master in a fleet of fishing vessels is called an admiral: see the royal proclamation of 1708 as to the masters of the first, second and third vessels entering a harbour in Newfoundland for the fishing season being respectively admiral, vice-admiral and rear-admiral.

[4 ]The special attention bestowed, on account of their geographical position, on the Cinque Ports, carried out a policy originated by the Romans, who found themselves under the necessity of protecting the country from the attacks of pirates, which subsequently assumed the form of wholesale immigration by hordes of Saxons. In order to obtain and keep the command of the sea, the naval forces were, about ad 230, reorganized, and the practice of rewarding, by privileges, the building of ships extended to Britain. Walled camps with fortified harbours were established by the Roman Imperial Government from Southampton, along the line of Sussex, Kent, Essex, Suffolk and Norfolk, round to the Wash; Dubris (Dover) being about the centre, and the base on the opposite coast at Bononia (Boulogne); the British squadron being strengthened by the construction of vessels for coast defence. These were stationed in the great estuaries, under prefects, that is, officers exercising military as well as naval command, the whole force being under the authority of the Count of the Saxon Shore (Comes Littoris Saxonici). Details of this organization are given in the “Notitia Dignitatorum” compiled towards the end of the fourth century. In ad 286 Carausius, who had occupied the position of gubernator, or pilot, in the Roman Navy, was appointed to the command of the British fleet, and, crossing over from Bononia to Rutupiæ (Richborough, now Sandwich), he assumed the imperial purple and greatly improved the fleet; but on his murder by his subordinate Alectus, and the defeat of the fleet of the latter by the Roman commander sent against him, the power of the navy to resist the attacks of the Saxons and north Germanic tribes decreased. After the final departure, about ad 430, of the Romans, upon whose power they had entirely depended, the Britons were quite unable to police their own coasts, having neither ships nor officers; but Alfred, about 897, Athelstan, about 937, Edgar, about 964, and Canute, 1016, seem to have availed themselves to some extent of the original organization, and besides creating and maintaining a fleet of “king’s” and “people’s” ships, developed the principle that the port-towns should find a fixed number of ships, in return for which they were granted exemption from general taxation and permission to govern themselves. This arrangement, by which the mercantile marine undertook both its own business of trade and the national business of territorial defence, the Normans accepted with some adjustment to adapt it to feudal tenures.

Dover, as the nearest point to the Continent, was naturally regarded as of special importance, and from Saxon times downwards Dover Castle was looked upon as the “key and barrier of the whole kingdom” (Matthew Paris).

In the time of Edward the Confessor, according to Domesday Book, the burgesses of Dover and Sandwich each “furnished the King with twenty ships once in each year for fifteen days and in each ship were twenty-one men.” A little later the development of English shipping was greatly stimulated by the necessity for the conveyance by sea to the Holy Land of knights and their followers to join the Crusades, and by the time of Henry II. the two great commercial ports of the kingdom were London and Bristol; but the Cinque Ports revived with the great charter of 6 Edw. I., granted for services rendered in the Welsh war. Fifty-seven ships were to be furnished at their cost for fifteen days, and, in return for the defence of the shores, their privileges were confirmed, including the right of holding pleas and the right of wreck, and they were accorded absolute freedom to trade toll-free throughout the realms of the English kings. This freedom led them to carry on private wars, and in 1293 they fought a battle on their own account in mid-channel which plunged England into a war with France. By the time of Edward II. they had degenerated into pirates (Nicolas, Hist. of Navy, vol. i. pp. 359, 360), and the Cinque Ports became the strongholds of privilege and disorder. Aggrieved parties on both sides of the Channel were permitted and encouraged to settle disputes for themselves which, in later times, have been treated as international questions (Clowes’ Hist. of Navy, vol. i. p. 136); but under Edward III. their services assumed a more national character. At the battle of Sluys in 1340 the ships of the ports numbered about one-sixth of the whole fleet, and at the battle of Les Espagnols-sur-Mer the fleet was composed equally of “king’s” and of “ports” ships. During peace their vessels served to bring wine from Gascony, or to take wool to Calais; whilst in time of war decks were fitted on which castles were raised at the bow and stern. Under Richard II. they ceased to form the van of the navy; and though the harbours remained deep enough to float the light vessels which supplied the cross-channel traffic, their gradual silting up led to the decline of the Cinque Ports as a source of naval power, Dover being the only port which remained open and in use, the others sinking into small agricultural and fishing places.

In the reign of Henry VIII. the Court of Lodemanage was established, consisting of four respectable mariners (wardens), to settle the disputes of pilots; the pilot service having been constituted by charter under Edward II. This became the Corporation of Cinque Ports Pilots (Dover Trinity House), which in 1853 (16 & 17 Vict. c. 129) was merged in the London Trinity House.

For the internal organization of the ports and their Courts, which seem to have been borrowed in part from that of the communes of Picardy, see Hueffer’s Cinque Ports, p. 378, and Jeake’s Charters of the Cinque Ports.

[1 ]The offices of admiral and captain were subsequently divided.

[2 ]See Wynne’s life of Sir Leoline Jenkins, vol. i. p. lxxxv., and The Lord Warden and Admiral of the Cinque Ports v. H. M. in his office of Admiralty (1831), 2 Hagg. 438, at pp. 444, 445. See also Appendix E. p. 387, Hueffer’s Cinque Ports, 1900. The statutes 2 Hen. V. and 28 Hen. VIII. c. 15, reserve the cognizance of such criminal cases as are therein mentioned in the Cinque Ports to their own admiral, distinct from the Lord High Admiral’s jurisdiction.

[3 ]The Court, presided over by Arthur Cohen, Esq., K. C., sits occasionally at the Royal Courts of Justice, London. It is not a Court of Record, but appeals lie direct to the Privy Council, and appeals may be made to it from the County Court under 31 & 32 Vict. c. 71, s. 33, in causes arising within the jurisdiction of the Cinque Ports.

[4 ]The terms of one of the earliest commissions issued to an admiral, that of John Lord de Botetort, March 15, 1315, is set out at p. 142, vol. i. of Clowes’ History of the Navy.

[5 ]Comyns, Dig., tit. Admiralty (B); 4 Inst. 145.

[1 ]The navy consisted of the ships, mariners, pilots, and any other persons able and fit for service arrested as often as occasion required. The Royal Navy—that is, a number of ships of war permanently kept on foot by the Crown—practically dates from the time of Henry VIII., when, in 1512, the first navy office was created, and commissioners appointed to manage naval affairs. A Lord High Admiral continued to be appointed until 1632, when the office was put in commission; and since that date there have been only four, the office in the intervals being executed by a Board of Commissioners. The four were James Duke of York, styled Admiral of England, Scotland and Ireland (1660) (but when excluded from office by the Test Act in 1673 Charles II. had the office executed by commissioners: see Sir L. Jenkins’ Letters, Life by Wynne, vol. ii. p. 705); Prince George of Denmark (1702); the Earl of Pembroke (1708); the Duke of Clarence (afterwards William IV.), in 1827, who was assisted by a council (7 & 8 Geo. IV. c. 65). As to the King in his office of Admiralty representing the Lord High Admiral, see The Mercurius (1798), 1 C. Rob. 80, at p. 81; and The Rebeckah (1799), 1 C. Rob. 227, at p. 229; the distinction involving differences in the rights jure coronæ and those appertaining to him in his office of Admiralty.

From 1827 the administration—that is, the government of the affairs of the navy as distinct from the judicial portion of the powers of the office of admiral—has been entirely vested in the Commissioners for executing the office of Lord High Admiral of the United Kingdom of Great Britain and Ireland, with, in recent years, preeminent powers and responsibilities in the First Lord.

[2 ]See Black Book, Rolls Series, vol. i. p. 33, No. 11 of Instructions to the Admiral. This jurisdiction since the time of Charles II. has been exercised by Naval Courts Martial.

[3 ]See Black Book, Rolls Series, vol. i. p. 57, No. 16 of the Rules or Orders about matters which belong to the Admiralty, probably compiled in the reign of Edward III., and containing preexisting rules of various dates, but probably not so early as those assigned to them.

[4 ]Lib. iii. fol. 125.

[5 ]Black Book, Rolls Series, p. 65, No. 17 of the Admiralty Rules or Orders. Prynne’s Animadversions, p. 106.

[6 ]At that time styled custodes marinæ or maritimæ or capitanei navium, though the title of admiral is inserted in the Black Book owing to the date of the compilation of that book being later.

[1 ]The criminal cases tried, with juries (see The Ruckers (1801), 4 C. Rob. 73, note at p. 74), before the admiral, or his deputy, comprised all crimes and offences committed either upon the sea or on the coasts, out of the body or extent of any English county, including (by 15 Rich. II. c. 3) death and mayhem happening in great ships being and hovering in the main streams of great rivers below the bridges; but trial by jury ceased to be usual in Admiralty by the time of Henry VIII., and as the Court proceeded by way of accusation and information conformably to the civil law, “the exercise of a criminal jurisdiction there was contrary to the genius of the law of England: inasmuch as a man might be there deprived of his life by the opinion of a single judge, without the judgment of his peers, and besides . . . offenders might, and did frequently, escape punishment; for the rule of the civil law is . . . that no judgment of death can be given against offenders, without proof by two witnesses, or a confession of the fact by themselves.” 4 Bl. Com. 268.

In consequence the statute 28 Hen. VIII. c. 15, recites that people committing offences on the sea often escape punishment because it is hard to get witnesses, if the prisoners will not confess, which they will not do without torture; and the statute proceeds to enact that all treasons, felonies, robberies, murders, and confederacies, committed within the Admiralty jurisdiction, shall be tried by commissions of oyer and terminer, under the King’s great seal, according to the rules of the common law—that is to say, by witnesses and a petty jury, after the indictment has been found by the grand jury. On these commissions the admiral, or his deputy, was always named, with two of the common law judges and some of the practising civilians (see Reg. v. Serva (1845), 2 Car. & K. 53, at p. 55); and as the commissioners could only try the offences mentioned, the enactment in effect dealt rather with the mode of trial than with the jurisdiction in Admiralty.

This Act was explained and extended by 39 Geo. III. c. 37, and 46 Geo. III. c. 54, with the result that all offences whatever committed on the high seas were made punishable as if committed on land, and triable in the manner directed by 28 Hen. VIII. c. 15. By 4 & 5 Will. IV. c. 36, which established a Central Criminal Court, the judges of that Court were empowered to try offences committed within the Admiralty jurisdiction, and the judge of the Court of Admiralty was appointed one of the judges of the Central Criminal Court. By 7 & 8 Vict. c. 2, power was given to any judge of oyer and terminer to try offences committed within the Admiralty jurisdiction without any special commission being issued. By 24 & 25 Vict. cc. 96 to 100, all indictable offences mentioned in these Acts which shall be committed within the jurisdiction of the Admiralty may be tried and dealt with in the county where the offenders are apprehended or are in custody, as if the offence had been committed on land.

[1 ]The Black Book of the Admiralty contains numerous references to the fees, commodities, and profits appertaining to the admiral by virtue of his office. See Rolls Series, vol. i. pp. 15, 171, 399, as to poundage on seamen’s wages; Ib. pp. 23, 145, 151, 173 as to share of prizes; Ib. pp. 173, 401, as to fees, &c.; Ib. pp. 151, 171, 223, 241, as to share in flotsams, &c. As to the fees appertaining to the admiral in the time of Sir Thomas Beaufort, see Roscoe’s Ad. Prac. (3 ed.) p. 8, note 2.

[2 ]See extract from report of 1829 at p. 50 of the Report (1864) of the Commissioners on the Court of Admiralty in Ireland. The inquisitions of the Cinque Ports seem to indicate “that an important—perhaps the chief—purpose of the (Cinque Ports’) Admiral’s Court was the collection of his perquisites and forfeitures” (see Marsden, Select Pleas (Selden Society), vol. ii. p. xxiii.); and the claims made by the Lord High Admiral to perquisites within the liberties of the Cinque Ports appear to have led to interminable disputes with the ports and their warden (see Ib. pp. xix. et seq.).

[3 ]According to the list of “fees, commodities, and profits appertaining to the admiral by virtue of his office,” and alleged to be of the time of Sir Thomas Beaufort, admiral 13 Hen. IV., the admiral took one moiety of waifs, flotsam, and ligan, all deodands (subject to reasonable salvage), all forfeited vessels under 30 tons, and over that tonnage if not required by the king, fourpence in every pound of wages to mariners, twenty pence for every pound recovered in his Court between party and party, two shares of every prize, and such fees for safe conduct as may be agreed. Black Book, Rolls Series, vol. i. pp. 397-401. See also the addition to the Inquisition of Queenborough, arts. 23 and 74, Ib. pp. 151-171. “The very large terms of the admiral’s patent induced him to make claims to wreck, royal fish, findalls, as well as to rights connected with the seashore which were wholly unfounded in law, and which helped to bring the Court and the office of the admiral into discredit”: see Marsden, Select Pleas (Selden Society), vol. ii. p. xviii. Prince George of Denmark surrendered all the rights, profits, and perquisites appertaining to the office to the use of Queen Anne, in return for a fixed increased pay, which was under George I. divided among seven commissioners; but the pay of the First Lord has since been increased, whilst droits of Admiralty are now paid into the Exchequer for the benefit of the public service.

[4 ]Flotsam, jetsam, and ligan (defined p. 25 Roscoe’s Ad. Prac. (3 ed.) ), belonged to the King, who granted them to the Lord High Admiral. They pass by the grant of wreck when cast upon the land, but if they are not cast upon the land the admiral hath jurisdiction and not the common law. 5 Rep. 106. The question of these emoluments occasioned a difference between King Charles II. and his Lord High Admiral, which was settled at the Council of March 6, 1665, when the interest of the King was separated from that of the Crown in the person of the Lord High Admiral and his office, and the Duke of York by deed assigned all droits to the King.

[1 ]Deodands are “things instrumental to the death of a man on shipboard, or goods found on a dead body cast on shore.” See Browne on the Civil Law, 2nd ed. vol. ii. p. 56; Coke, Inst. 3, 57; and Black Book, Rolls Series, vol. i. p. 397, note 1.

[2 ]This share of prize goods consisted of one-tenth after the Royal Navy was formed; but in early times, when the fleets consisted of ships of the subject, the king had one-fourth, the owner of the ships one-fourth, and the remaining half was divided between the admiral and those who took the prize. See Black Book, Rolls Series, vol. i. p. 21, No. 19 of Rules for the Admiral. For a list of the rights and emoluments belonging to the ancient office of Lord High Admiral of England, but returned to and vested in the Crown by surrender in the time of Charles II., see Sir Leoline Jenkins’ charge at the Admiralty Sessions, Life by Wynne, vol. i. p. xcviii. For a claim by the king jure coronæ, and in his office of Admiralty, see The Dickenson (1776), Marriott’s Decisions, p. 1. Although droits were reserved to the Crown after the office of Lord High Admiral was executed by commissioners, the Lords of the Admiralty acted as a board of revenue in collecting them, and accordingly appointed their own collectors by their own commission. See Instructions to the Receiver General of the rights and perquisites of the Admiralty, Marriott’s Decisions, p. 70. As to wreck at sea after a year and a day being a droit in Admiralty, and wreck on shore after the same lapse of time being the king’s jure coronæ, see Browne’s Civil Law, vol. ii. p. 49.

[3 ]See Black Book, Rolls Series, No. 21 of the Rules about matters which belong to the Admiralty, vol. i. p. 69, note 3.

[1 ]See Marsden’s Select Pleas (Selden Society), vol. i. p. xiv. As to the establishment of the Court of Admiralty by Edward III., see Spelman, Gloss. 13; Lambard, Archion, 49, both cited in 3 Bl. Com. 69; Beawes’ Lex Mercat. (1813), 6th ed. p. 400.

[2 ]Piracy, letters of reprisal and marque, were “the most noble and eminent piece of the jurisdiction of the Chancery.” See Sir M. Hales’ Jurisdiction of the Admiralty, Hargr. 93, p. 96. See also Rex v. Carew (1679), 3 Swanston, 669, at p. 670, where Lord Nottingham says: “I observed that this cause was properly in Chancery upon many accounts, not only as it was a scire facias to repeal letters patent, but as it was a cause of state, and likewise as it was a marine cause, and did concern depredations on the sea, in which cases the Chancery as well as the Admiralty hath a clear jurisdiction, and this appears by what was said in Peter Blad’s case (Ib. p. 603), and by many records and precedents cited in my Parliament MSS., tit. Admiralty and tit. Chancery, and is most expressly so settled and enacted in a statute not printed, viz. 31 Hen. VI.”

[3 ]Piracy was not felony at common law, and the proceeding for restitution was subsequently designated in the records of the Admiralty Court by the title of a causa spolii civilis et maritima. “There is said to be a fashion in crimes, and piracy, at least in its simple and original form, is no longer in vogue. Time was when the spirit of buccaneering approached in some degree to the spirit of chivalry in point of adventure, and the practice of it, particularly with respect to the commerce and navigation and coasts of the Spanish American Colonies, was thought to reflect no dishonour upon distinguished Englishmen who engaged in it.” See per Lord Stowell in The Hercules (1819), 2 Dods. 353, at pp. 370, 373, 374, 376.

[1 ]For an instance of the condemnation to the Crown, as droits of Admiralty, of the proceeds of property taken out of the possession of convicted pirates, see The Panda (1842), 1 W. Rob. 423. See also ib. p. 431, for a reference to the statute 27 Edw. III. c. 8, s. 2, by which foreign merchants spoiled of their goods at sea were to have restitution upon proof of their property in the goods without having to sue at the common law. By 22 & 23 Car. II. c. 11, s. 2, power was given to the Admiralty Court to punish the masters and officers of merchant vessels for misconduct in not resisting pirates. By 11 & 12 Will. III. c. 7, s. 11, officers and seamen who defended the ship against pirates might recover remuneration through the Admiralty Court. By 8 Geo. I. c. 24, any ship trading or corresponding with or supplying pirates, and any goods on board, might be forfeited and sued for in the Court of Admiralty. By 6 Geo. IV. c. 6, and 13 & 14 Vict. c. 26, the ancient jurisdiction of the Court was confirmed, by which it can adjudicate respecting the return to their rightful owners of goods found in the possession of pirates.

[2 ]The record is set out in part by Lord Coke (4th Institute, tit. Admiralty, 143), on the question of the rights of the admiral’s office, and by Selden (Mare Clausum, 275) in proof of the antiquity of the claim of the Kings of England to the dominion of the neighbouring seas. (See Edwards’ Adm. Jurisd. p. 10 et seq.) This portion of the record appears to be the draft of an instrument intended to serve by way of petition to certain commissioners appointed by the Kings of England and France as arbitrators in respect of disputes between English and French subjects as to depredations at sea which the English complained were acts of spoliation by French subjects, whilst the French alleged that the depredations had been committed under the orders of a Genoese commander in the service of France, who was “admiral of the sea,” and who had seized the English ships on behalf of the French King on the ground that they were carrying goods to the Flemings, enemies of the French King.

[3 ]Park, in his Marine Insurance (1842), vol. i. Introd. p. xlviii., states the commonly accepted view that the Rhodians promulgated “a system of marine jurisprudence to which even the Romans themselves paid the greatest deference and respect, and which they adopted as the guide of their conduct in naval affairs. These excellent laws not only served as a rule of conduct to the ancient maritime states, but, as will appear from an attentive comparison of them, have been the basis of all modern regulations respecting navigation and commerce. The time at which these laws were compiled is not precisely ascertained, but we may reasonably suppose it was about the period when the Rhodians first obtained the sovereignty of the sea, which was about 916 years before the era of Christianity.” The existence, however, of a code of Rhodian maritime law has been seriously questioned, since the work entitled the “Nautical Law of the Rhodians”—of which there is a manuscript in Greek dated 1478—has been shown to be a forgery (see Browne’s Civil Law, vol. ii. pp. 38, 39), and the alleged wholesale adoption of that law into the law of Rome hangs on a very slender thread, viz., the single Greek sentence in Dig. xiv. 2. 9, which has been translated: “Ego quidem mundi dominus, lex autem maris; lege id Rhodia, quae de rebus nauticis praescripta est, judicetur, quatenus, nulla nostrarum legum adversatur.” The meaning of this sentence, which depends on the punctuation, has been hotly disputed. It is put into the mouth of the Emperor Antoninus by way of reply to the petition of Eudæmon of Nicomedia, who had been ship-wrecked in Italy and plundered by tax-gatherers on one of the islands of the Cyclades. The reasonable inference seems to be that the island of Rhodes, from its central geographical position and natural capabilities, its naval power and its commerce, exercised in its palmy days considerable influence in maritime matters, and the usages of the sea as there observed between seafaring men and merchants were, no doubt, inquired into, and may have been in part accepted, by the Romans; though the only evidence of this consists in the heading “Of the Rhodian Law of Jettison” to the short title of the fourteenth book of the Digest of Justinian, the opening paragraph of which contains an extract from the chapter on the Rhodian law of jettison in the Sentences of Paulus, and the rest of the title consists of paragraphs from the writings of Paulus and other prominent Roman jurists whose names are prefixed to the extracts in which the principle as to contribution is worked out from their writings; but in all the other extracts in the Digest from the writings of Roman jurists on maritime law the authority of Rhodes is not given. See the whole subject discussed in the Report of the Buffalo Conference of the International Law Association, 1899; and for the headings of the more important subjects of maritime law dealt with in the Digest of Justinian, see Browne on the Civil Law, vol. ii. pp. 35, 507.

[1 ]See Ortolan’s Institutes of Justinian, vol. i. History of Roman Legislation, par. 529 et seq.

[1 ]The ordinances and customs of the Sea of Trani are stated in the preamble to have been published in the year 1063, and are alleged to be the most ancient body of mediæval maritime laws in existence. The thirty-two articles of which the ordinances consist are a series of decisions made by the maritime consuls of the guild of navigators at Trani, which was a leading city on the Adriatic coast in the eleventh century. The articles are set out in the Appendix to the Black Book of the Admiralty, Rolls Series, vol. iv. pp. 522-543. The third ordinance contains a departure from the Roman law of general average, presumably due to the organised system of piracy which existed in the eleventh century in the Adriatic. Another town, on the Adriatic, that of Amalphi, was a maritime port of some importance in the ninth century. In the tenth century it is alleged to have had a maritime court presided over by consuls of the sea, and at the same period formed commercial establishments in Sicily, and at Alexandria. In ad 1178, Amalphi obtained from the King of Jerusalem the privilege of having the disputes of its merchants, established in the ports of Syria, settled by their own consuls according to their own customs, and in 1190 a similar privilege was obtained from the magistrates of Naples. A manuscript containing the chapters and ordinances of the Maritime Court of the noble City of Amalphi, commonly called the Amalphitan Table, was discovered in the Imperial Library at Vienna in 1843. The date of the tables has been determined to be of the eleventh century, and they indicate a system of trade in which each voyage was a joint adventure, all the merchants on board being associated for the voyage with the ship and making up a common purse. The text of the sixty-six articles of which the table consists is set out in the Black Book, Rolls Series, Appendix, vol. iv. pp. 2-51.

[2 ]Black Book, Rolls Series, vol. i. Introd. p. lxix.

[3 ]See the seven chapters on Maritime Law in the “Livre des Assises” of the Latin kingdom of Jerusalem, set out in the Black Book, Rolls Series, Appendix, vol. iv. pp. 498-519. In the Court of the Merchants (or the Exchange Court) a Frank bailiff nominated by the Crown presided, assisted by two Franks and four Syrians as a jury, and it therefore partook of the character of an international Court.

[1 ]The Domesday of Ipswich, recording the laws and customs of that town, dates from 17 Edw. I., the book having been drawn up from the original Roll issued under the authority of a charter granted by King John in 1199. The text is set out in the Black Book, Rolls Series, Appendix, vol. ii. pp. 16-207. The jurisdiction of the sworn twelve “capital portmen,” elected from amongst the most fit, discreet, and wealthy of the burgesses, was abolished by the Municipal Reform Act (5 & 6 Will. IV. c. 76), s. 108.

[2 ]ad 1199, Rymer’s Fœdera, i. 111.

[1 ]The text of the customs of Oleron is given in the appendix to the Black Book of the Admiralty, Rolls Series, vol. ii. pp. 254-397.

[2 ]See Art. 87 of the Coutumier of Oleron with reference to a dispute as to the sale of a ship between two part owners, both being Bretons. Black Book, Rolls Series, vol. ii. p. 385.

[3 ]Roscoe’s Ad. Prac. (3 ed.) p. 13.

[4 ]See Black Book, Rolls Series, vol. i. Introd. p. lxii.

[5 ]In the lengthy controversy which has been maintained on the question of Richard I. publishing the roll of Oleron as laws of the sea in the island of Oleron, the difficulty appears to be that that king did not visit the island on his way home from the fourth Crusade, and that the roll in question does not contain ordinances but judgments. See Black Book, Rolls Series, vol. i. Introd. p. lvii. et seq.; vol. ii. Introd. pp. xlviii., li. et seq.

[1 ]A copy of the Rolls of Oleron also exists in the Guildhall of the city of Bristol which appears to date from 18 Edw. III. See Black Book, Rolls Series, vol. i. Introd. pp. lviii.-lxi.

[2 ]The writing of the existing book is of a period not earlier than the reign of Henry VI. There is good reason for assuming that this part was compiled from earlier sources after the appointment of Sir John Beauchamp to be admiral of all the fleets of ships south, north and west, in 1360. See Black Book, Rolls Series, vol. i. Introd. p. xlvi.

[3 ]Articles 16 and 17. See Roscoe’s Ad. Prac. (3 ed.) p. 6.

[4 ]Article 18 regulates the mode of arresting vessels (that is, private ships) and men for the king’s service, and, after referring to an ordinance made at Grimsby by Richard I., states that the court of the admiral is a court of record, which it continued to be at the time of 13 Rich. II. c. 5 (see Black Book, Rolls Series, vol. i. Introd. p. xlvii., and p. 67, n. (1), after which it appears to have lost its position until restored by 24 Vict. c. 10, s. 14. That it was a court of record is denied in Sparks v. Martyn (1680), 1 Ventr. 1; Pane v. Evans (1675), 1 Keb. 552; see also Brooke’s Abr., tit. “Error,” 177. “The Admiralty is said to be no court of record on account of its proceeding by the civil law.” Beawes’ Lex Mercat. (1813), 6th ed., p. 401; 4 Inst. 135.

[5 ]See Black Book, Rolls Series, vol. i. Introd. p. lvi.

[6 ]They correspond with the twenty-four articles in the old Flemish tongue, known as the “Judgments of Damme,” which are a translation of the judgments of Oleron, and constitute the earliest body of sea laws in use amongst the merchants of Damme and Bruges, and the shipowners and shipmasters who frequented the port of Sluys in the fourteenth century. These articles, which purport to be “a copy of the Rolls of Oleron of the Judgments of the Sea,” have been preserved in the Purple Book of Bruges, the text of which is set out in the Black Book, Rolls Series, Appendix, vol. iv. pp. 302-333.

In the Appendix to the same volume of the Rolls Series of the Black Book, pp. 54-129, is set out, under the title of “Gotland Sea Laws,” the text of a MS. at Copenhagen of the fifteenth century, which also includes the laws of Oleron. The MS. purports to contain those laws of Wisby (a town in the island of Gotland at the entrance of the Gulf of Bothnia) which were called the “Supreme Maritime Law,” and which seem to have been agreed to, according to the custom of the time, by the merchants frequenting the island of Gotland assembled in common council. These laws consist of sixty-six articles, fourteen of which are from a Baltic source, and are to be found in the laws of Lubeck. They were probably derived from Wisby at a time when that town took that lead in foreign trade which was subsequently acquired by Lubeck; twenty-five are Flanders sea laws, being a Flemish translation made in the middle of the fourteenth century of the judgments of Oleron; and the remainder are Dutch sea laws known as the ordinances, or usages, of Amsterdam, probably reduced to writing in the latter part of the fourteenth century.

[1 ]Black Book, Rolls Series, vol. i. Introd. p. lxi., citing Prynne’s Animadversions, p. 117.

[2 ]In The Gas Float Whitton, No. 2, [1896] P. 42, Lord Esher refers to these articles and argues that, as the mariners were at liberty to cut off the head of a pilot who lost a ship, the penalty is so barbarous that it is ridiculous to suggest that the laws of Oleron “are part of the English law”; but the early period in our history, when they appear to have been used as rules for the decision of maritime causes in Courts of the sea, must be taken into account, the law of the sea providing a summary remedy with a view to deter a pilot from casting away the ship when in league with the lord of the soil and with wreckers lying in wait on the beach. (See Roscoe’s Ad. Prac. (3 ed.) p. 24.) Browne, writing in 1802 (Civil Law, vol. ii. p. 210), says: “The instance Court is governed by the civil law, the laws of Oleron, and the customs of the Admiralty, modified by statute law.” On the other hand, Molloy, De jure maritimo (1722), 7th ed., writes (p. 285): “By the laws of Oleron, if his (the pilot’s) fault is notoriously gross, that the ship’s crew sees an apparent wreck, they may then lead him to the hatches, and strike off his head; but the laws of England allow no such hasty execution,” and Lord Tenterden (Abbott’s Treatise on Merchant Ships and Seamen, 5th ed. p. xi.) says: “It should be observed, however, not only of all these treatises, but also of the civil law, and the ordinances (viz. the ordinances of Oleron, and Wisbuy, the two ordinances of the Hanse Towns, and the Ordinances de la Marine of 1681), without excepting even the ordinance of Oleron (which, being considered as the edict of an English prince, has been received with peculiar attention in the Court of Admiralty), that they have not the binding force or authority of law in this country, and that they are here quoted, sometimes to illustrate principles generally admitted and received, sometimes to show the opinion of learned persons, and the rule adopted in maritime nations upon points not hitherto settled by the authority of our own law; and at other times to furnish information that may be useful in our commercial intercourse with foreign states.” But it would seem probable that litigants resorting to the Admiralty Court would expect to have their disputes settled summarily, according to the usages to which seafaring men were accustomed; and the principles upon which actions for damage to cargo are based, and which were derived by the Admiralty Court from the customs of the sea (chaps. xviii., xix., xx. Consolato del Mare, Black Book, Rolls Series, vol. iii. pp. 92-95), will be found formulated in the Admiralty Court Act of 1861; so the provisions of art. 3 in the customs of Oleron (Black Book, Rolls Series, vol. ii. p. 213), as to the duty of the master and mariners in the preservation of the ship, and also arts 13, 14 et seq. in the Amalphitan table (Black Book, Rolls Series, vol. iv. p. 11), as to the support of a mariner ill or absent on business of the ship, will be found incorporated in the Merchant Shipping Act, 1854, having previously been acted upon by Admiralty judges. See further as to the law governing the Court of Admiralty: The Neptune (1834), 3 Hagg. 129, at p. 136; The Eliza Cornish (1853), 1 Spinks, 36, at p. 45; The Saxonia (1862), Lush, 410; The Patria (1871), L. R. 3 A. & E. 436, at p. 461. “The law which is administered in the Admiralty Court of England is the English maritime law. It is not the ordinary municipal law of the country,” per Lord Esher in The Gaetano and Maria (1882), 7 P. D. 137, at p. 143.

[1 ]The next following 52 articles, under the letter D., are an addition of later date to the Inquisition of Queenborough, Arts. 45, 46, and the inquiry to be made under art. 47 refers to the judgments of Oleron as to assaults by a mariner on the master, disobedience of the commands of the master, and as to pilots; so in art. 60 as to removal of anchors.

[2 ]In 1357 the King of Portugal complained that Portuguese goods had been taken by the English from a French ship which had “spoiled” a Portuguese vessel. Held that the goods were good prize. See Marsden’s Select Pleas (Selden Society), vol. i. Introd. p. xli.

[1 ]For a summary of these contracts relating to masters and mariners and other matters within the laws of Oleron, see charge by Sir Leoline Jenkins, 1668, Life by Wynne, vol. i. p. lxxxvii.

[2 ]In 1364 the reason given for a supersedeas to justices to stay proceedings on an indictment for a nuisance by driving piles into the bed of certain creeks near Colchester is that the matter had been dealt with in the court of the admiral, and the court seems to have been recognized as a court of record. In 1369 an action on a charter-party was tried before the admiral, and an action in the same matter in the Sheriff’s Court of London was stayed on production of the admiral’s certificate. See Marsden’s Select Pleas (Selden Society), vol. i. Introd. pp. xlv., xlvi.

[3 ]As to what is infra corpus comitatûs, see Com. Dig. Ad. E. 14; Jacob’s Law Dict. “Admiral.”

[4 ]Institute, 134, 135.

[5 ]These towns had either by charter granted by the Crown exemption from the admiral’s authority or had express grants of Admiralty jurisdiction, whilst some of the statutes relating to the admiral’s jurisdiction contain an express saving of seaport towns. By sect. 108 of the Municipal Reform Act, 1835 (5 & 6 Will. IV. c. 76), courts possessing Admiralty jurisdiction created by charter, with the exception of that of the Cinque Ports (Roscoe’s Ad. Prac. (3 ed.) p. 5), were abolished. Amongst these old local maritime courts so abolished were the Maritime Court of Ipswich (ib. p. 15), the Admiralty Court of Yarmouth, in existence prior to Edward III., and which claimed exemption from the Admiral’s jurisdiction in the reign of Edward IV. and obtained it by charter from Queen Elizabeth in 1559, the reservation in cases of piracy being removed by James I. (As to the borough rolls of this town, see Marsden’s Select Pleas (Selden Society), vol. i. Introd. p. xiv.). The Admiralty Court of the Borough of Poole has records going back to 1550; the Admiralty jurisdiction of the town of Southampton was granted in 23 Hen. VI. As to the Admiralty jurisdiction of the Mayor of Newport in the Isle of Wight, see Raikes & Kilburn’s Admiralty Jurisdiction in County Courts, pp. xxxi.-xxxiii., where also will be found references to the Admiralty jurisdiction existing by prescription or charter prior to 1846 (9 & 10 Vict. c. 99, ss. 21, 40) of Kingston-on-Humber in Yorkshire, Boston in Lincolnshire, King’s Lynn in Norfolk, Dunwich and Southwold in Suffolk and Harwich and Malden in Essex. The exemption of Bristol from the Admiral’s jurisdiction was confirmed by charter of Henry VI. and Edward IV. Newcastle-upon-Tyne had a Maritime Court as early as Henry II. See Stubbs’ Select Charters, p. 107. In 1383, in a case in the King’s Bench in which application was made to obtain execution of a judgment obtained in the maritime Court held at Padstow (Aldestowe), it was asserted that that town was an ancient seaport, the liberties of which were confirmed by Magna Charta, including jurisdiction in maritime causes. The defendant made default in appearance and his vessel was attached. The trial took place before the mayor and burgesses with a jury of mariners and merchants, and the evidence was given by witnesses on oath. The case was settled on the production of the king’s letters patent protecting the defendant, see Marsden’s Select Pleas (Selden Society), vol 1. Introd. p. xlix. As to the Vice-Admiralty jurisdiction of counties and districts derived from the Lord High Admiral, the Admiral of the Cinque Ports, or the Admiral of the North and West, with an appeal to the Admiralty Court, see Clerke’s Praxis, tit. 56; and Sir Sherston Baker’s Vice-Admiral of the Coast (1884); and as to the Admiralty coroner, see ib. p. 21. The terms of the letters-patent of Lord Wodehouse, Vice-Admiral of the County of Norfolk, 1838, are set out in 2 W. Rob. 254, note (a). Any military power that may have been possessed under grants made by the Crown in early times to persons to exercise Admiralty jurisdiction within certain places independently of the Lord High Admiral has long ceased to exist, and their Admiralty jurisdiction only extends to the civil rights conferred on them, such as the right to wrecks and other droits of Admiralty found within the limits of their manors, and these rights are now controlled by the general statutory provisions consolidated by the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), Part IX. ss. 523-529.

[1 ]The petitions to the king and parliament complained inter alia of the removal of causes from the west to the key of William Horton at Southwark in London. See Marsden’s Select Pleas (Selden Society), vol. i. Introd. p. li. It would seem that the courts of the admirals of the north, south, and west, now fell into disuse, in favour of the curia principalis admiralitatis angliæ, which, according to the ancient custom of the Admiralty, sat upon the key “juxta fluxum maris.” In the reign of Henry VIII. Orton key, near London Bridge, was a usual place of sitting, see Prynne’s Animadversions, pp. 82, 402. In the reign of Charles II. the Court sat in St. Margaret’s Church, in Southwark, see Pepys’ Diary, 17 March, 1663, and Sir Sherston Baker’s Vice-Admiral of the Coast, pp. 27, 28. During the plague the Court sat in Jesus College, Oxford, see Wynne’s Life of Sir L. Jenkins, vol. i. p. ix. About 1675 it was removed to the hall of the College of Advocates, Doctors’ Commons. In 1860 it sat at Westminster, and now, as a branch of the High Court, it sits at the Royal Courts of Justice, Strand.

[1 ]By the law of Rome (Cod. xi. 5, De Naufragiis, 1. 2), the treasury (fiscus) was not allowed to profit by the disaster of a shipwreck, the property remaining with the owners, or if unclaimed it was retained for a year. Any abstraction of fragments or prevention of succour to the shipwrecked persons was rigorously punished (Dig. 47. 9, De naufragio. &c., l. 3, § 8; l. 7; l. 12), both the actual parties concerned and the owner of the land where the vessel went ashore being required to find sureties to appear before the president of the province, whilst the exhibition of a light by fishermen to mislead a vessel and so cause her destruction involved heavy penalties. By Dig. 14. 2, De Lege Rhodia de jactu, 2. § 8, property thrown overboard to lighten a vessel only became the property of the finder if intentionally abandoned; otherwise (Dig. 47. 2, De Furtis, 43. § 11) he who carried them off from the shore or fished them up from the bottom of the sea committed theft. This view as to the restriction on the right of the first occupant is contained in art. 31 of the Roll of Oleron (Black Book, Rolls Series, vol. ii. p. 469), and by art. 45 (Ib. p. 477) salvors were to be remunerated for their trouble in getting up anchors and cables slipped, which were not deemed lost unless the owner could not be found, in which case the lord took his share and the salvors theirs. But the tendency to claim a distinct share in the property of persons in distress at sea is shown by art. 19 of the Ordinances of Trani (Black Book, Rolls Series, vol. iv. p. 537), which modifies the Roman law by giving the finder of goods floating on the sea one-half if delivered up to the court, and the owner found; but if at the end of thirty days the owner did not appear, the whole belonged to the finder. By art. 20, in the case of goods under water, and marked, two-thirds belonged to the finder. In the result the humane principles of the Roman law, which had tended to soften the barbarous usages of earlier times, were obliterated by a return to that inhumanum jus naufragii to which Blackstone alludes (see 1 Bl. Com. 293), which involved the sufferers by shipwreck not only in the forfeiture of their property to the lords of the soil, but they themselves were often sold into slavery, until the effects of the Crusades in stimulating international commerce, and the efforts of the Church, brought about a partial renunciation by the local authorities of the right of wreck.

In 1243 full protection was secured to the person and property of all who might suffer shipwreck on the coasts of Catalonia or Valencia: Black Book, Rolls Series, vol. iii. Introd. p. lxix. In 1287, by the resolutions of the merchants frequenting the island of Gotland, all persons were prohibited under heavy penalties from purchasing or selling goods plundered from wrecked vessels, and any city which would not enforce the prohibitions was excluded from the league: Black Book, Rolls Series, vol. iv. Introd. p. xlii. By art. 26 of the Roll of Oleron (Black Book, Rolls Series, vol. ii. p. 461), if a single person escaped the lord of the place was not only not to hinder, but to aid the saving of the fragments of the vessel or of her merchandise by those to whom they belonged, subject to just remuneration to any salvors for their trouble, without regard to any promise made to them, by the master of the vessel or the merchants owning the goods, of (art. 4, Ib. p. 437) a reward of a third or a half of the goods; but (art. 27, Ib. p. 463) if no one survived, then, subject to payment to salvors for their trouble, the lord of the place should advise the relations of the deceased persons and keep the goods for a year, and then sell them by public auction, and use the money for pious purposes without retaining a fourth. In art. 29, Ib. p. 467, reference is made to a decree of the Lateran Council of 1179 excommunicating the lord or salvors who should possess themselves of shipwrecked goods, and the article refers to and condemns the practice of pilots, in connivance with wreckers and the lord of the place, running ships ashore for the purpose of the lord and the salvors claiming a third or a fourth each, which shares had been substituted for the absolute right of the lord of the coast to all wreck. By art. 41 the right of the first occupant to derelict goods is declared not to apply where the goods may be assumed to have belonged to someone, and neither the lord nor the finder are entitled to keep them: Black Book, Rolls Series, vol. ii. p. 475.

By chap. iv. of the Wisby Town Law (Roscoe’s Ad. Prac. (3 ed.) p. 18, n. (a)) (Black Book, Rolls Series, vol. iv. p. 393), in case of shipwreck within the limits of the town’s jurisdiction, the remuneration to salvors was fixed by the prud’hommes, or, in case of dispute, by the Court. By chap. xiii., Ib. p. 405, the finder of a derelict ship or of goods driving on the sea, with no land in sight, was entitled to a moiety for his labour in recovering the property; if land was in sight, or the goods were on the ground, one-third part; if the goods could be reached by wading or if they were on the shore, the eighth penny.

By art. 7 of the Maritime Assise of the Kingdom of Jerusalem (Black Book, Rolls Series, Appendix, vol. iv. p. 517), the finder of goods thrown overboard, and floating on the water, was entitled to a moiety, the owner to the other moiety; if found at the bottom of the sea, only one-third went to the finder—in any case the owner of the soil taking the owner’s share if the latter did not appear to claim it.

By art. 14 of the Maritime Law of the Osterlings (and the law of Hamburg, see Black Book, Rolls Series, Appendix, vol. iv. p. 367), salvors of derelict goods floating on the open sea were entitled to one-twentieth part, but in the case of shipwreck the amount due to those who brought the goods to land was smaller. By art. 15 salvors of goods driving upon a beach, or of a ship breaking up in a harbour, were to be paid such a sum for their work by the owners as arbitrators should award.

By chap. 207 of the Customs of the Sea (Consolato del Mare, Roscoe’s Ad. Prac. (3 ed.) p. 33. n. (g.)), derelict goods are to be reported to the authorities, and if perishable, sold, and the finder rewarded with half, the goods or the proceeds being kept for a year and a day, after which the authorities were entitled to one-fourth, and the remainder was to be devoted to pious purposes: Black Book, Rolls Series, vol. iii. p. 439; see also chap. 245, Ib. p. 619.

Similar steps toward the mitigation of the law of wreck of the sea took place in England, where by the common law the general rule that the property in derelict, that is, bona vacantia designedly abandoned, vests in the finder as the first occupant (Britt. bk. i. c. xviii.), was set aside in favour of the Crown (see as to royal fish, wrecks, treasure trove, waifs and estrays, 1 Bl. Com. 299); so that if any ship was lost at sea, and the cargo thrown upon the land, the goods were adjudged to belong to the King: see Dr. & St. d. 2, c. 51; Molloy, De jure maritimo, 7th ed., p. 269; 5 Rep. 108, b; but by an ordinance attributed to Henry I., but in 1 Rymer’s Fœdera, 36, to Henry II. (1174), and by Cleirac to Henry III. (1226), if a single person escaped alive all right to wreck was renounced if claimed within three months, otherwise to belong to the King, or other lord of the franchise; and the law in the reign of the last mentioned king appears to have been that if only a dog or other living animal escaped, by which the owner might be discovered, or if the goods were marked so that they might be known, it was no wreck: Bracton, l. 3, 2nd treatise, c. 3, s. 5. See also 2 Coke’s Inst. 166.

By art. 33 of the rules or orders about matters which belong to the Admiralty (Black Book, Rolls Series, vol. i. p. 81), inquiry is to be made concerning all those who claim to have wrecks on the sea coast and have no right to wrecks by any charter or prescription, and if any one be thereof indicted and convicted by twelve men he shall pay to the King the double of what he shall have got by such wrecks; and by art. 42 of the addition to the Inquisition of Queenborough (Black Book, Rolls Series, vol. i. p. 159), inquiry is to be made about all those who suffer wreck of any ship or boat perished upon the sea whereout man, cock, dog, or cat doth escape alive, and the owner thereof, or of the goods which were therein, come within a year and a day to challenge the ship or goods and cannot have restitution thereof.

The revenue from wreck, that is, goods coming to land, was granted out to lords of manors as a royal franchise; but, by the grant of wreck, things jetsam (goods cast into the sea and there sinking and remaining under water), flotsam (continuing to float on the surface after the vessel has sunk), and ligan (sunk in the sea tied to a buoy, so as to be found again): Constable’s Case (1601), 5 Rep. 106—did not pass, for they were not deemed wreccum maris unless they came ashore (The King v. Two Casks of Tallow (1837), 3 Hagg. 294), as they were not held to be abandoned, and they only became the property of the Crown if no owner appeared to claim them.

The trial of cases of spoil of wreck properly belonged to the courts of common law, and the above-mentioned statute of Richard II. required questions concerning wreck of the sea to be tried by the law of the land, and not before the admiral or his lieutenant; but owners of ships and goods wrecked found it convenient to resort to the Admiralty Court to obtain possession of their property, and the statute of Richard came to be disregarded, commissions issuing from the Admiralty directing the search for and taking possession of wrecked goods in the hands of persons other than the owners: Marsden’s Select Pleas (Selden Society), vol. i. Introd. p. lxviii.

By 27 Edw. III. c. 13, if any ship were lost on the shore, and the goods came to land, “which may not be said wreck,” they should presently be delivered, upon proof of ownership, to the merchants, “paying to them that have saved and kept them the sum (salvage) convenient for their travel.” See 1 Bl. Com. 293.

In the reign of James I. the practice seems to have been, in the case of things found floating at sea and brought by the finder to land, to divide it into three parts: the first to the finder, the second to the lord of the fee where it was landed, and the third to the King or to the lord admiral. Hale, De Jure Maris, Harg. Tracts, pt. i. c. 7, p. 41.

In the next reign the vice-admirals throughout the kingdom were directed to conform to the practice of the Cinque Ports, by which, if the finders of wrecks certified them to the droit gatherers, one-half belonged to the salvors and one-half to the admiral; otherwise the admiral took the whole, and the finders were fined and imprisoned. In 1632, by the compromise between the Admiralty and the common law judges (Roscoe’s Ad. Prac. (3 ed.) p. 54) the “saving of ships” is expressly mentioned as cognizable in Admiralty when the proceedings are against the ship itself, and in 1633, in the case of a ship ashore off the Essex coast, proceedings were taken in Admiralty to have her condemned to the King as wreck. The owners and the salvors intervened in their respective interests, the salvors asking for a moiety as due to them by custom, and, according to Marsden (Select Pleas, Selden Society, vol. ii. p. xxxvi.), this is the first case in which the precarious right of salvors to a half of findalls, derelict, or waifs, or to a recompense in the nature of payment for work and labour from the owners of property which was not wreck in the legal sense, was converted into a recognized right to sue in Admiralty for salvage, though the recognition was resented by the vice-admirals of the coast, who objected to owners of ships in distress being at liberty to make contracts with salvors enforceable in Admiralty, as it was their duty to take possession of and preserve shipwrecked goods, and the salvage payable by owners was one of their perquisites; but the practice grew for the owners and salvors to intervene in proceedings taken in Admiralty on behalf of the Crown, or for the owner to sue the salvors for detention of the property, in which case sentence was given for restitution of the property or its value, power being reserved for the Court to award salvage. During the Commonwealth efforts were made to put down wrecking, and to recompense salvors who assisted ships in distress, but after the Restoration, so far as droits are concerned, the customary half was reduced to a gratuity from the Crown or the admiral. In 1771 Lord Mansfield, in Hamilton v. Davis, 5 Burr. 2732, decided that the property in wrecked goods was not divested out of the owner by the fact that no living thing escaped from the wreck alive. By 1 Will. IV. c. 25, droits were transferred from the Crown to the Consolidated Fund, sect. 12 reserving the right of the Crown to reward the salvor. The practice in such cases is indicated in The Thetis (1833), 3 Hagg. 14, at p. 38, where—upon the arrival in this country of the first consignment of the treasure recovered—the Admiralty proctor arrested it as derelict, and as such droits of Admiralty. Upon this a claim was made on behalf of the owners, and restitution, subject to salvage and expenses, was ordered. As further consignments arrived in England they were also arrested, and the actions in respect of them consolidated. With regard to derelicts being perquisites of Admiralty, see The Aquila (1798), 1 C. Rob. 37, at p. 43; and with regard to the practice in the eighteenth century as to the quantum of salvage, Sir C. Robinson in the above case (The Thetis) said (at p. 62) that “the maritime laws of England fix no certain proportion in cases of salvage, but are governed by circumstances of danger, hazard, trouble and expense of saving; an eighth or tenth, except in cases of extreme hazard, is as much as is usually allowed. Neither the Lord High Admiral nor lords of manors have any right of salvage, but only those who save.” For a summary of the (so-called) Rhodian, Roman, English, and French law as to wreck, see The Aquila (1798), 1 C Rob. 37, note at pp. 47, 48. For the existing law as to wreck and salvage see Roscoe’s Ad. Prac. (3 ed.) chap. Salvage.

[1 ]See Wynne’s Life of Sir L. Jenkins, Argument before the House of Lords, vol. i. p. lxxviii.

[2 ]This Act was repealed in 1861 by sect. 31 of the Admiralty Court Act, 24 Vict. c. 10.

[3 ]E. g., the patent of the Earl of Pembroke in 1708.

[1 ]“Of the right of pressing or seizing of ships or mariners for service publick,” see Molloy, De jure maritimo, 7th ed. (1722), chap. vi.

[2 ]An Ordinance of King John (Black Book, Rolls Series, Rule No. 25, vol. i. p. 73) required the admiral to make inquisition as to unlawful claims of customs or tolls on the coast, except for anchorage, and another in 1201, that vessels meeting the king’s ships must lower their upper sails, otherwise they would be seized and forfeited as enemies’ goods and the crews imprisoned: see No. 35 of the laws of Oleron, Black Book, Rolls Series, vol. i. p. 129. The date of this Ordinance has been much disputed, but beyond the fact that the language has been altered to suit the time when the Black Book was written, and that it is inserted in the laws of Oleron as if those laws then existed in England, there seems no reason to doubt its accuracy. This provision as to vailing the bonnet is cited by Selden in his Mare Clausum, bk. 2, c. 26 (1635), in support of the supremacy asserted by the Crown of England to the sovereignty of the Narrow Seas, and was rigorously enforced at the time that that claim was put forward, any disrespect being severely punished. See Molloy, De jure maritimo, 7th ed., p. 79. For a late case, see that of The Native in 1829 (3 Hagg. 97), where the master of a schooner was arrested for contempt in not lowering his royal when passing a man-of-war. This offence (as well as that for secreting seamen in fraud of the public service) has been long unknown in practice, and when proceedings were instituted by the Admiralty proctor they usually terminated by an apology and payment of costs. Similarly it was an offence against the laws of the sea and ancient constitutions of the Admiralty to carry a flag not easily distinguishable from the king’s jack. See the paragraph from a charge of Sir Leoline Jenkins set out in a note to The Minerva (1800), 3 C. Rob. 34. See also The King v. Miller (1823), 1 Hagg. 197. For the procedure in the case of such a complaint, see the evidence of Sir Herbert Jenner at pp. 35, 297, of the report of the Select Committee on the Admiralty Court, 1833, and Reg. v. Ewen (1856), 2 Jur. N. S. 454. The penalties for unduly assuming the British character, are now included under the headings “National Character and Flag” and “Forfeiture of Ship,” in the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), ss. 68-76. The jurisdiction of the High Court with reference thereto is, by the Merchant Shipping Rules, 1894, s. 1, assigned to the Probate, Divorce and Admiralty Division, that is, to the Admiralty Court.

[1 ]See Black Book, Rolls Series, vol. i. p. 3.

[2 ]The word “lieutenant” was held to apply to the judge. See Wynne’s Life of Sir L. Jenkins, vol. ii. p. 706.

[3 ]This implies the existence of a maritime law and body of ancient customs already in use. By art. 5 the admiral is to take care that the whole office be well executed and justice done to all parties “according to the law and ancient custom of the sea.” By art. 6 the admiral is to have letters of aid from the king directed to the sheriffs of counties, and other officers of the king.

[4 ]See Black Book, Rolls Series, Appendix, vol. i. p. 409.

[5 ]The deputies or vice-admirals, and their lieutenants or judges were appointed under the Admiralty seal in the principal ports of the kingdom and its dependencies, and constituted the Vice-Admiralty Courts with an appeal to the High Court of Admiralty, see The Fabius (1800), 2 C. Rob. 245. As to the appointment and jurisdiction of Vice-Admirals, see Sir Sherston Baker’s Vice-Admiral of the Coast, chap. v. As to Vice-Admiralty Courts, see Browne’s Civil Law, vol. 2, chap. xii. In 1833, by 3 & 4 Will. IV., c. 41, appeals from Vice-Admiralty Courts abroad were transferred to the Judicial Committee of the Privy Council.

[1 ]See Rymer’s Fœdera, 6, 170, and Marsden’s Select Pleas (Selden Society), vol. i. Introd. p. xlii.

[2 ]See Rymer’s Fœdera (Record ed.), iii. 505 and 597.

[3 ]See the material words of the patent of Sir Leoline Jenkins, set out in one of his letters, Life by Wynne, vol. ii. p. 706.

[4 ]See Marsden’s Select Pleas (Selden Society), vol. i. Introd. p. lv. The Court of Requests also exercised Admiralty jurisdiction by delegation from the Privy Council in matters of salvage, spoil, piracy, letters of reprisal and prize. Some of the judges of the Admiralty Court were masters of this Court, see Marsden, ib. p. lxv. Sir J. Cæsar, judge of the Admiralty Court, 1584, states that the procedure was according to the process of summary causes in the civil law, see Leadam’s Select Cases in the Court of Requests (Selden Society), vol. xii. p. xxi.

[5 ]Set out in Rymer’s Fœdera, 13, 700.

[1 ]“Breviter, summarie et de plano, absque strepitu judicii et figura, sola facti veritate attenta, prout de usu et consuetudine maris fieri est assuetum.” See chap. xxxvi. of the Judicial Order of the Court of the Consuls of the Sea, set out in the Appendix to the Black Book, Rolls Series, vol. iv. p. 489. Under Imperial Rome maritime causes were directed to be heard without delay before the competent judge in each province. Code xi. 5 (De Naufragii), 5.

[2 ]De Lovio v. Boit (1815), 2 Gall. 398, at p. 400.

[3 ]The Consolato del Mare was a collection of the customs of the sea observed in the Consular Court of Barcelona, and called “Chapters of the Sea.” The collection received many additions and acquired the name of the “Consulate” early in the fifteenth century. The so-called book of the Consulate is a volume printed at Barcelona, in the Catalan tongue, in 1494, and was drawn up by the notary of the Consular Court for the use of the consuls of the sea at Barcelona. The first part of the book consists of regulations for the procedure to be observed by the consuls of the sea at Valencia, who appear to have been first established by King Peter III. of Aragon, in 1283, but from internal evidence the date of this part of the book is not earlier than ad 1336. Next come the Constitutions and Customs of the Sea, of which the date is not earlier than ad 1340. The third part is a treatise on cruisers, which from the use of the word “admiral” cannot be earlier than the middle of the fourteenth century. Then follow eleven documents dating from ad 1340 to 1488. See the whole subject of the dates of the various parts of the book learnedly discussed by Sir Travers Twiss in the Appendix to the Black Book, Rolls Series, vol. ii. Introd. pp. lx.-lxx., and that portion of the book of the Consulate of the Sea which contains the Customs of the Sea, and which constituted the important part of the maritime customs of Europe in the fourteenth century, is printed in the Appendix to the same work, vol. iii. pp. 50-657.

Lord Mansfield, in Luke v. Lyde (1776), 2 Burrows, 882, at p. 889, quotes from the Consolato del Mare as a Spanish book containing a valuable body of maritime law, and Lord Stowell refers to it in The Aquila (1798), 1 C. Rob. 37, at p. 43; and in The Ceylon (1811), 1 Dods. 105, at p. 116. Dr. Christopher Robinson, afterwards judge of the High Court of Admiralty, published in 1801 a translation of two chapters of the Customs of the Sea on the subject of maritime prize, and observes that the Consulate of the Sea is generally allowed to have been composed from the Amalphitan Table (Roscoe’s Ad. Prac. (3 ed.) p. 14); but the internal evidence afforded by the difference of the provisions in the table and in the customs, particularly on the subject of contribution in cases of jettison, and as to vessels sailing as consorts, disproves this suggestion, and shows that the prud’hommes who compiled the Customs of the Sea at Barcelona framed them after a different set of usages.

[1 ]See chap. xxii. of the Judicial Order of the Court of the Consuls of the Sea, Black Book, Rolls Series, App. vol. iv. p. 473.

[2 ]The Court consisted of two consuls and a judge of appeal annually elected from amongst the masters and mariners constituting the Guild of Navigators. The consuls were paid by a poundage on the amount of the claim, and the judge of appeal by a poundage on the amount adjudged to be due by the consuls. On election the consuls took an oath to do justice alike to rich and poor, and the judge of appeal was presented to the King’s procurator for appointment. A scribe was then appointed to whom the custody of the seal of the Court was entrusted. (The Registrar of the Admiralty Court in England was also called a scribe, see list of fees appertaining to the scribe of the Court of Admiralty, Black Book, Rolls Series, Appendix, vol. i. p. 403.) The consuls and the judge of appeal might be represented in their absence by members of the Guild of Navigators, as in the case of members of the College of Advocates in London who could act as surrogates of the judge of the High Court of Admiralty.

[1 ]See this oath (sacramentum calumniæ) in the order of procedure, or Praxis Curiæ Admiralitatis, Black Book of the Admiralty, Rolls Series, vol. i. Introd. pp. xxxiv., 188.

[2 ]This indicates that the authority of the consuls was primarily introduced to interpose them as arbitrators between the representatives of the Guild of Merchants and those of the Guild of Mariners.

[1 ]Roscoe’s Ad. Prac. (3 ed.) p. 18.

[2 ]Ib. p. 18.

[3 ]Ib. p. 18.

[1 ]What has become of the earlier records is not known. See Marsden, Select Pleas (Selden Society), vol. i. p. lx.

[2 ]“An author of undoubted credit,” per Lord Hardwicke in Sir Henry Blount’s Case (1737), 1 Atkyns, 295, at p. 296.

[3 ]For the summary procedure in marine civil matters, see Ridley’s View of the Civil and Ecclesiastical Law (1639), 3rd edit. p. 94. See also Godolphin’s Admiral Jurisdiction, 2nd edit. (1685), p. 41.

[4 ]Edit. 1722, tit. 1.

[5 ]Beawes’ Lex Mercat. (1813), 6th edit. p. 401.

[6 ]See 3 Bl. Com. 108, citing Clerke’s Praxis.

[7 ]See The Assunta, [1902] P. 150, at p. 152, note (3).

[1 ]See a form of bond to pay what may be adjudged due in the action: The Robert Dickinson (1884), 10 P. D. 15.

[1 ]“Si habuerit aliqua bona, merces, vel navem aut naviculam super mare vel intra fluxum aut refluxum maris ac jurisdictionem domini Admiralli, impetrandum est warrantum ad hos effectus: viz., ad arrestandum talia bona, vel talem navem, ad N. reum debitorem spectantia in quorumcunque manibus existentia, et ad citandum apud bona hujusmodi N. debitorem in specie, ac omnes alios in genere jus aut interesse in bonis hujusmodi habentes, aut habere prætendentes, ad comparendum tali die, M. in quâdam causâ civili et maritimâ de justitiâ responsurus.” Clerke’s Praxis, edit. 1743, tit. 28.

“One need not cite or summon him who is contumax, and will not appear, but where the ship or goods in question lie, or at the port usual of their haunting.” Welw. Tit. 5, f. 62. “Si in re, quæ arrestari debet, habeat portionem indivisibilem tantùm tota res potest tùm arrestari.” Peck, de jure sistend., C. 4, n. 18. See Roscoe’s Ad. Prac. (3 ed.) p. 45.

[2 ]Beawes’ Lex Mercat. (1813), 6th edit. p. 402.

[1 ]The appeal from the Instance Court lay to the King in Chancery, who appointed delegates by commission to hear and determine it. The effect of 2 & 3 Will. IV. c. 92, 3 & 4 Will. IV. c. 41, and 6 & 7 Vict. c. 38, was to abolish the old Court of Delegates (which had been the Court of Appeal from the Instance Court since 8 Eliz. c. 5 made the appeal final), and substitute an appeal to the Judicial Committee of the Privy Council for report to the Sovereign. By sect. 18 of the J. A. 1873, and sect. 4 (3) of the J. A. 1891, the jurisdiction of the Judicial Committee upon any judgment or order of the Admiralty Court was (except as to prize) transferred to the Court of Appeal.

[1 ]Per Fry, L. J., in The Heinrich Bjorn (1885), 10 P. D. 44, at p. 54. The learned judge adds, “or by proceedings against the real property of the defendant within the realm.” As to this, see the mode of satisfying a judgment out of real property, in the absence of moveables, indicated in the above-mentioned Valencian Regulations (Roscoe’s Ad. Prac. p. 36); but in the Admiralty Court the stipulations, in the nature of a recognizance, entered into by the principal parties and their sureties, only affected body and goods, not lands. “The Court of Admiralty may cause a party to enter into a bond, in nature of caution or stipulation, like bail at common law; and if he render his body, the sureties are discharged; and execution shall be of the goods, or the body, &c., not of the lands”: Beawes’ Lex Mercat. (1813), 6th edit. p. 402. These stipulations were not under seal from fear of prohibition, and for a similar reason the principal parties and their sureties, each time they entered into a stipulation, expressly submitted to the jurisdiction of the Court, and consented, that in case of default in the performance of the conditions, the Admiralty process should issue against them. In other respects the stipulation followed the practice of the civil law with regard to fidejussory cautions, and the sureties on both sides on behalf of the principal party undertook to pay the condemnation or sum agreed, and costs (judicatum solvi), to appear from time to time, and at the hearing, to abide the sentence (de judicio sisti), and to ratify the acts of the proctor (de rato). The bail were not liable beyond the extent of their fidejussory caution, and the security did not extend to the Court of Appeal, where the principal party had to obtain fresh fidejussors. See Browne on the Civil Law (quoting Clerke), vol. ii. pp. 408-412.

[1 ]In 1684 Saunders, C. J., observed that “nothing was more frequent than for the Admiralty to arrest ships riding in the river, that it was done every day for mariners’ wages and other maritime causes”: Sandys v. East India Co., Skinner, 91, at p. 93.

[2 ]Taylor v. Best (1854), 14 C. B. 487, argument of Mr. Willes, pp. 510, 511.

[3 ]Castrique v. Imrie (1870), L. R. 4 H. L. 414, per Lord Blackburn, at p. 430.

[4 ]Owing to the pressure of the courts of common law exercised by prohibiting actions against individuals personally whilst they allowed actions to proceed when based upon a claim over the res (Johnson v. Shippen (1704), 2 Ld. Raym. 982, at p. 984), the Admiralty Court was driven to arrest property in the first instance, on the ground of hypothecation or lien, so as to have jurisdiction quoad the res. and avoid the question of jurisdiction quoad the owner, with the result that the proceeding by arrest of the person compelling bail to be given to submit to the jurisdiction of the Court became obsolete, and the practice of attaching the goods or a ship of a party who could not be found, or who lived in a foreign country, to compel appearance also fell into disuse. See Browne’s Civil Law, vol. ii. pp. 434, 435. Hence, Browne, writing in 1802, commences his chapter on the practice of the Admiralty Instance Court with the remark that “Clerke in his Practice begins with the process in personam . . . we shall begin with the process in rem as the most usual and frequent.” He goes on to say that “proceedings in rem take place principally in suits for seamen’s wages, when they proceed against the ship or cargo, this being their most expeditious mode, though they may also have their remedy against the master or owner (as is the constant practice, and admitted to be right in Howe v. Napier (1766), 4 Burr. 1945), in suits on hypothecation, or bottomry bonds, in which the ship and goods are solely and specifically bound; in suits insisting on a right of possession, where there is a clear constat of the property, as where one part-owner unjustly refuses possession of the ship to the master nominated by the majority of his part-owners; and in actions for collision, where there is no pretence for making the owner answerable, or demanding reparation, as against him, beyond the value of the ship, for against the master, according to Bynkershoek, there is remedy in solidum, and beyond the value of the ship. . . . When the proceeding is against the ship, the action being entered, and an affidavit of the debt made by the person on whose behalf the warrant is prayed, or by his lawful attorney, process commences by a warrant directed to the marshal of the Court, commissioning him to arrest the ship or goods, or both; which warrant contains also a citation to the master of the ship in particular, and all others in general, having or pretending to have an interest in the said ship, her tackle, apparel and furniture, or (as the case may be) in the cargo or goods, to appear personally on a day, and at a place therein named, to answer and defend, in a certain cause, civil and maritime. This warrant is executed by producing the original before the master and crew, and affixing a copy to the mast of the ship; after which an affidavit must be made of the following tenor, to wit, that the deponent did arrest the ship mentioned in the warrant thereunto annexed, her tackle, apparel and furniture; and that he did cite all persons in general, and those requisite in special, to appear as above. . . . This warrant and affidavit or certificate are then to be returned, and if there be any apprehension of the ship’s being carried to sea, the sails may be taken on shore or a custodee put on board. The ship being thus arrested, a proctor appears for the promovent and makes himself party for him; and either the owner will appear to defend his interest, and by voluntarily entering into a stipulation, give jurisdiction to the Court over him personally, or by not entering an appearance (which, perhaps, if the demand exceed the value of the ship, he may think superfluous), may oblige the Court to proceed for defaults, which word here signifies non-appearance. The proceeding for defaults is as follows: The warrant which issued against the ship having been returned with the marshal’s certificate of its execution, and a proctor having appeared for the promovent, and none of the persons generally or specially cited appearing on the day or at the place assigned, after being thrice publicly called in Court, their contumacy is accused; and in pain of this contumacy, the ship, or rather they, are said to incur the first default, and then time is given to them to appear on the next court day, which is technically called continuing the certificate of the execution of the warrant to that day. This step is repeated four times, on four successive court days . . . and then, the four defaults being incurred . . . the proctor of the complainant exhibits a summary petition . . . reciting the cause of suit, the party cited having been thrice called and not appearing, and his standing in contempt by having incurred four defaults, whereupon the oath required by law having been made, viz., of the debt, the proctor of the complainant prays right and justice, and to be put in possession of the ship, her tackle, apparel and furniture to the extent of the debt . . . and for the expenses. This article or allegation being porrected to the judge, with a schedule of expenses to be taxed, and an oath of their necessity, and the parties being again thrice called and not appearing, the judge pronounces them to be contumacious, and in pain of their contumacy admits the article, and the instruments on which the suit or debt is founded, e. g., a bottomry bond, being exhibited to him . . . a first decree is porrected to the Court, and by it read, signed and promulged, and the expenses taxed. By this first decree . . . the Court decrees that the complainant shall be put in possession of the ship, her tackle, apparel and furniture, or, as the case may be, of all the goods, wares or merchandise, now or lately on board the same, to the extent of the debt, if the things so possessed be sufficient, and if not, as far as their value, security being first given to answer for the same to any person claiming right or intervening for their interest within a year. . . . No second decree is necessary in the Court of Admiralty, where the proceeding is in rem, the first decree by the civil law giving nude possession, and the lapse of a year producing a possessory right and enjoyment of the fruits.” But the possession of the thing gives no power over the proceeds; a subsequent application to the Court is therefore necessary (The Exeter (1799), 1 C. Rob. 173, at p. 175) for a decree of sale and possession of the proceeds, usually obtained as matter of form on “an allegation of the perishable condition of the ship, and of its actual or probable deterioration by time, concluding with a prayer that the ship may be appraised and valued and decreed to be sold, and that the moneys arising therefrom be brought into the registry. . . . Upon this the Court decrees a perishable monition, i. e., it decrees all persons to be monished (by affixing an original monition on the Royal Exchange, and by leaving there affixed a true copy thereof) to appear in Court on a certain day and hear an allegation as to perishable condition, and witnesses being there sworn, or a commission issued to take their depositions, and such their depositions published, to shew cause why the ship should not be exposed to public sale, and the money proceeding from the sale be brought into the registry for the use of all persons interested, with the usual intimation. The cause is then assigned to be heard summarily on perishable condition, which appearing by the attestations, the judge decrees a commission to sell the ship or cargo or both, as the case may be, the proceeds to be brought into the registry for the use of all persons interested. The proceeds of the sale being brought into the registry, the Court exercises its discretion over them, giving priority, where there are various suitors, according to precedence in commencing the suit . . . and decreeing the balance over and above the principal demand of the promovent’s to be paid over to the true owner, saving the demands of any persons legally intervening in the cause pro interesse suo. It is very usual for the impugnant or some other person interested to come in while the defaults are running, or after they are all incurred, or even within a year after the first decree obtained, and on giving security and paying all costs to be admitted to defend,” and if the bail was sufficient the ship was released. The libel and all the proceedings were sometimes vivâ voce, but usually the party appearing was sworn to give in his personal answer before a day assigned, which if he omitted to do he was attached, though he could not be visited with a fine or pecuniary penalty, as the Admiralty Court was not a Court of record. The proceedings then went on up to the definitive sentence in a similar way to a personal summary cause in the Ecclesiastical Court, and are given in detail in Browne’s Civil Law, vol. ii. p. 413 et seq.

With regard to the effect of the mode of initiating a suit by the usual form of warrant for the arrest of the ship, her tackle, apparel and furniture in a cause of damage civil and maritime, the question was raised in The Dundee (1823), 1 Hagg. 109, whether the owner of the vessel arrested was liable beyond the appraised value of the “ship, her tackle, apparel and furniture,” and Lord Stowell held (p. 124) that this ancient formula led “to a full remedy affecting all the property of every kind belonging to the owners . . . (and was) no further restricted than as the statutes (for limitation of liability) restricted it.” This view is contrasted by Lord Blackburn in The Khedive (1882), 7 App. Cas. 795, at p. 813, with the opinion of Parke, B., in Brown v. Wilkinson (1846), 15 M. & W. 391, at p. 398, that the Admiralty Court “proceeds in rem, and can only obtain jurisdiction by seizure, and the value when seized is the measure of liability”; but in spite of the views of Dr. Lushington (see The Volant (1842), 1 W. Rob. 383, at p. 389), the opinion of Lord Stowell has prevailed, and it seems that if the owners do not appear the judgment is limited to the res in the hands of the Court, though if they do appear they are in the same position as if they had been brought before the Court by personal notice, see The Dictator, [1892] P. 304, where execution issued against owners, who had appeared in an action in rem, for the recovery of the amount by which a decree exceeded the amount of the bail, and in The Gemma, [1899] P. 285, the owners of a foreign vessel, who had appeared, were held to be personally liable for the balance with costs over and above the full value of the vessel and her freight, which had been released on bail for that amount, and further that the payment of the balance could be enforced by a writ of fieri facias against any of their goods and chattels, including the released vessel, within the jurisdiction.

[1 ]Roscoe’s Ad. Prac. p. 7.

[2 ]This synchronises with the formal declaration by Parliament in 1534 of the supremacy of the Crown in ecclesiastical matters, and the Admiralty Court was always associated in its methods and practice with the Ecclesiastical Courts which were, at this time, undergoing reform.

[1 ]See the letter (1598) set out in Burrell’s Admiralty cases by Marsden, pp. 232, 233.

[2 ]See the agreement set out in Prynne’s Animadversions, p. 98, and in Edwards’ Admiralty Jurisdiction, p. 21.

[1 ]Lord Coke (4th Inst. 136) says that though, in 1611, this agreement was read over in the presence of King James I. and in the hearing of the judges, they did not assent to it.

[2 ]See Carter’s Outlines of Legal History, p. 140.

[3 ](1610), 2 Brownl. & G. pt. 2, 37.

[1 ]In his view of the Admiralty jurisdiction (4 Inst. 134 to 147), Sir Edward Coke also adduces a number of cases before 13 Rich. II. to disprove the extent of the jurisdiction claimed for the Admiralty; but in Smart v. Wolff (1789), 3 T. R. 323, which was an application for a prohibition to the Prize Court, Buller, J., observes, at p. 348, that these statements are to be received with caution, and adds that Lord Coke “seems to have entertained not only a jealousy of, but an enmity against,” the Admiralty.

[2 ]Palmer v. Pope (1612), Hobart, 79, 212.

[1 ]Sir Henry Constable’s Case (1601), 5 Rep. 106. See also Sir L. Jenkins’ charge at the Admiralty Sessions, Life by Wynne, vol. i. p. xci.

[2 ]After applications to the Council and to the Chancellor to interfere by way of supersedeas and certiorari had been found to fail.

[3 ](1782), 2 Dougl. 612 (n). In this case the foundation and nature of prize distribution in the Court of Admiralty is explained by Lord Mansfield. Sir Julius Cæsar in the reign of Queen Elizabeth, and Sir Henry Vane in the time of Charles I., were eminent judges of the law of prize. Sir Leoline Jenkins in 1664, with the assistance of other civilians, drew up a body of Rules and Ordinances on the adjudication of prizes, for the guidance of the judge of the Admiralty, which was approved by King Charles II. Sir Thomas Exton in the time of Charles II., and Sir Charles Hedges in the reigns of King William and Queen Anne, were also eminent judges in the law of Prize; but the most distinguished judge was Lord Stowell (see Roscoe’s Ad. Prac. (3 ed.) p. 57), whose judgments during a time of successive hostility with most of the European states have excited universal admiration. According to Marsden (Select Pleas, Selden Society, vol. ii. p. lxxix.), the separation of Prize from Instance business was made shortly after the restoration. The judge of the High Court of Admiralty has hitherto by royal warrant exercised in time of war the office of judge of the Prize Court which is deemed distinct from the ordinary court, that is, the Instance Court. Browne, writing in 1802 (Civil Law, vol. ii. pp. 208, 210, 212), says “the jurisdiction depends not on locality but on the subject-matter, and the Prize Court hears and determines according to the course of the Admiralty and the law of nations. . . . I strongly suspect that, before the last century, he (the admiral) did exercise a jurisdiction over prize without any special or distinct commission; and certain it is, before Britain had a regular or royal navy, that the admiral . . . was entitled to a very considerable share of prize ships or cargoes taken; besides, no prize commission having issued, as far as appears, in ancient times, how could he have then exercised the authority, unless it was considered as inherent?”

The Court of Admiralty had no jurisdiction to decide any question concerning booty of war, that is, property captured on land by land forces exclusively until, by sect. 22 of the Admiralty Court Act, 1840 (3 & 4 Vict. c. 65), power was given to the Court to try such questions as should be referred to it by Order in Council, and to proceed as in cases of prize of war. See Banda and Kirwee Booty (1866), L. R. 1 A. & E. 109; (1875), L. R. 4 A. & E. 436.

[1 ]4 Inst. 124, 135. See Bl. Com. iii. 68, 107, iv. 267; and Black Book, Rolls Series, vol. i. p. xxxviii. and 281.

[2 ]See Com. Dig., Adm. E. 10, 17; Menetone v. Gibbons (1789), 3 T. R. 267.

[3 ]These resolutions are set out in Zouch on the Admiralty Jurisdiction; and in Edwards, p. 23. See also Prynne’s Animadversions, c. 22, p. 100, and Browne on the Civil Law, vol. ii. p. 78.

[1 ]In Sheppard’s Abridgement (1675) (pt. i. p. 128), 3 Cro. 296, 297, is quoted for the statement that “a suit may be in the Admiralty for building, saving, amending, and victualling of a ship against the ship itself, not against the party, but such as make themselves for their interest parties.” This remarkable clause keeping alive the earlier practice, and enabling a shipwright to sue in Admiralty, provided his suit was against the ship, together with all the other resolutions of 1632, were inserted in the two first editions of Croke’s Reports, but according to Comyns (Dig. Adm. E. 10, F. 3) they were intentionally omitted in the third edition, and a declaration inserted that they were of no authority. See Edwards’ Adm. Jur., p. 25.

[1 ]See Scobell’s Acts and Ordinances (1658), c. 112 (1648). As to the extent of the Admiralty jurisdiction down to the time of the Commonwealth, see Godolphin’s Adm. Jur., 2nd ed. (1685), cap. iv. pp. 37 to 50, and cap. viii. and ix. pp. 91 to 118.

[2 ]Scobell’s Acts and Ordinances, c. 112 (1648); c. 23 (1649); c. 3 (1651).

[3 ]See Ouston v. Hebden (1745), 1 Wils. K. B. 101, at p. 102, and Woodward v. Bonithan (1661), Sir T. Raym. 3.

[4 ]See his vigorous assertion of, and attempt to maintain, the claims of the Admiralty Court, in an argument delivered before a committee, appointed in 1669 to consider a bill for “declaring and ascertaining the jurisdiction of His Majesty’s Court of Admiralty in marine causes.” Wynne’s Life of Sir Leoline Jenkins, vol. i. pp. lxxvi-lxxxv.

[5 ]History of the Common Law, 6th ed., ch. 2, p. 39.

[1 ]The Court of Admiralty has no jurisdiction over any causes of action arising in foreign countries beyond the seas (in partibus transmarinis). Com. Dig., Admiralty, F. 3.

[2 ]Hook v. Moreton (1698), 1 Ld. Raym. 397, at p. 398.

[3 ]4 Coke’s Inst. 134.

[4 ]See per Lindley, L. J., in The Mecca, [1895] P. 95, at p. 106. As to the expression “high seas” (super altum mare), with reference to the jurisdiction of the Court of Admiralty, see 28 Hen. VIII. c. 15; Com. Dig., Admiralty E. (1), (7), (14); Reg. v. Anderson (1868), L. R. 1 C. C. 161; Reg. v. Carr (1882), 10 Q. B. D. 76.

[5 ]Com. iii. 107.

[1 ]Roscoe’s Ad. Prac. (3 ed.) p. 52.

[2 ]The publication of Admiralty Reports began in 1798. See The Neptune (1824), 1 Hagg. 227, at p. 235 (n).

[3 ]Civil Law, vol. ii. pp. 72, 100.

[4 ]In Bridgeman’s Case (1614), Hob. 23 (5th ed., p. 11), the master of a ship borrowed money from a passenger on his own private account, and not for the purposes of the ship, but empawned the vessel at sea, Prohibition issued because the subject-matter of the suit in Admiralty did not appear to be a marine contract. So in Atkinson v. Maling (1788), 2 T. R. 462, on a common sale or mortgage of a ship at sea, trover was held to be the remedy.

[5 ]Reports (1664), p. 500, pl. 56.

[6 ]Greenway and Barker’s case, p. 64.

[1 ]Menetone v. Gibbons (1789), 3 T. R. 267, at p. 270.

[2 ]Ouston v. Hebden (1745), Wils. K. B., pt. I. 101.

[3 ]Page 103.

[4 ]See Roscoe’s Ad. Prac. (3 ed.) p. 51. In the United States of America at the present time the test of Admiralty jurisdiction seems to be as to contracts, subject-matter; as to torts, locality. See Two Centuries Growth of American Law (1901), p. 453; and navigability is substituted for tides as a test of jurisdictional locality. The Genesee Chief (1851), 12 Howard’s Rep. 443.

[5 ]Page 121.

[6 ]It is commonly alleged that according to the law of countries following the Roman law, and according to the ancient practice in Admiralty (Life of Sir L. Jenkins, by Wynne, Letter to the King in Council, vol. ii. pp. 746-7) derived from that law, the building and equipping of ships, and the supplying them with necessaries, creates a lien on the ship, that is, gives the security of the specific ship in favour of the material man, the ground being that the repairs are done, or the goods supplied, on the credit of the ship, so that the ship is liable, in addition to the liability of the owners for the contracts of the supercargo or master. This lien was held to extend to the proceeds of the ship, if sold by the Court in another cause, and the great authority of Lord Mansfield and Lord Tenterden are quoted in support of this view (see per Sir John Nicholl in The Neptune (1834), 3 Hagg. 129, at pp. 136, 137); but, so far as the Roman law is concerned, there seems no authority for the proposition, as the passages usually cited (see Abbott on Shipping, 5th ed. p. 108) do no more than establish that, by the Roman law, a preferential right of payment existed, which, in the case of the repair of any specific article, might be enforced by retaining possession until payment was made, or by securing the arrest of the ship, as being amongst the assets of the debtor, until bail was given for appearance; and, in this country, the doctrine, as affecting the ship, was repudiated by the Courts of common law, in the reign of Charles II., as being in derogation of the common law (see per Lord Stowell in The Zodiac (1825), 1 Hagg. 320, at p. 325); that is, it was held that a material man out of possession had no lien on the ship, though the practice of paying such demands out of the proceeds of the sale of the ship, on which proceeds the lien was alleged to exist, continued. See, further, “Maritime Lien,” Roscoe’s Ad. Proc., p. 68.

[1 ]The Neptune, 3 Knapp, P. C. C. 94.

[2 ]See per Dr. Lushington in The Pacific (1864), Br. & L. 243, at p. 245.

[1 ]As the result of the Report in 1833 of the Commission appointed to inquire into the office and duties of the judges of the Court of Admiralty.