of the ordinary courts of common law originally depended upon venue, and did not extend to matters happening upon the sea. Very early records refer to an officer of state, to whom the keeping of the sea was entrusted by the crown. He seems to have been called custos maris, and in later times admiral. Whether judicial functions were originally conferred upon him or not may be matter of doubt, but as soon as maritime affairs began to assume importance, matters happening at sea, and not within any county from whence a jury could be summoned, requiring judicial investigation, were referred to him for adjudication. At what period a regular tribunal for the exercise of the duties thus cast upon the admiral was first erected is a question much debated among antiquaries, but it is certain that in the reign of Edward III. the court of the admiral was firmly established, and in the succeeding reign it was sufficiently powerful to assert prominent jurisdiction (f). Sir Thomas Ridley's View of the Civil and Ecclesiastical Law. 1607. Godolphin on Admiralty Jurisdiction. The Maritime Dicæology. John Exton. 1664. Sir L. Jenkins' Argument, contained Selden's Mare Clausum, book 2, cc. 15 & 16. The various authorities are discussed with great learning and research in several judgments in the American Admiralty Courts. In the case of De Lovio v. Boit, 2 Gallison, 399, Mr. Justice Story reviews the early authorities in a most masterly judgment. The conclusions at which the learned judge arrives are, however, startling, and are disputed with great force of reasoning by Mr. Justice Johnson in Ramsay v. Allegre, 12 Wheaton, 623. See also United States v. New Bedford Bridge, 1 Wood & Min. 401; Clinton v. Brig Hannah, Bee, 419. ハ All these cases, especially the two first, are worthy of attentive study. (f) "Yet though there were many admirals before the time of Ed. III., yet I find not that they had any jurisdiction therein; They had the keeping of the seas and full authority by the king's commission to invade among and spoile all French merchants. So that in short they were admirals for military action, not for civil jurisdiction." Spelman's Admiralty Jurisdiction, p. 221. "And concerning the Admiralty, I think that the decision of marine causes was not put out of the King's House and committed to the charge of the admiral until the time of King Edward III." Lambard's Archion, p. 49. "The jurisdiction of the Lord Admirall is verie antient and long before the reign of Edward the third, as some have supposed, as may appear by the laws of Oleron (so-called for that they were About the time of the Crusades, courts were established in the Mediterranean, which had general maritime jurisdiction, and took cognisance of controversies respecting freight, damage to goods shipped, mariners' wages, and maritime. contracts in general. The proceedings in these courts were after the method of the civil law, which was the foundation of the general system of jurisprudence prevailing in the countries on the continent of Europe. In England the admiral organised his court after the same model, and encouraged by the example of these foreign tribunals, soon laid claim to a jurisdiction as extensive as that possessed by them. Those persons in the realm who were favourably inclined towards the civil law, lent active support to these pretensions, and urged that commerce would be facilitated if the rules of maritime law recognised by the trading nations of the continent were adopted in this country, and administered by a court specially constituted to take cognisance of such matters (g). But the people at large were averse to encouraging made by King Richard the first when he was there) that there had been an admirall time out of minde, and by many other antient records in the reignes of Henrie the third, Edward the first, and Edward the second, is most manifest." 2 Co. Litt., 260 b. "In my perusal of the Black Book of the Admiralty there reserved (of as great authority with them as the Black and Red Books in the Court of Exchequer are there), pp. 24-27, I found an ordinance made at Ipswich in the reign of King Henry I., by the admirals of the north and west and other lords, and of divers kings before that time, containing the manner of outlawing and banishing persons attainted of felony or trespass in the Admiral's Court; the former whereof is there recorded at large, by which it is apparent that there was an Admiral's Court, and proceedings in it even in criminal and capital causes relating to mariners and seamen (as well as in civil), in the reign of King Henry I., derived from our ancient Saxon Kings Alfred, Edgar, Ethelred, and others who had the dominion of the British Ocean, which continued in use till the reign of King Richard I." -Prynne on the Fourth Institute, 106. Many other ancient documents are cited by this learned author. The Black Book of the Admiralty is an ancient compilation of laws, ordinances, and records in support of the authority and jurisdiction of the Court. It is said by some to have been compiled in the reign of Ed. 3, though it contains considerable additions of a later period. Mr. Justice Story (2 Gallison, 403) speaks of the book as "of the highest authority in matters concerning the Admiralty." (g) "From the common acceptance of the sea laws in other nations is inferred the acceptance of them in England. . . That the trafficking and sea trading is different from the bargaining and trading at land, and that therefore in a method of proceeding introduced from abroad. They were attached to the institution of trial by jury, and jealous of the civil law, and they determined to prevent the Admiralty Court encroaching upon the jurisdiction of the favourite tribunals at Westminster (h). In the 13th year of Richard II. an Act was passed, entitled "An Act concerning what things the Admiral and his deputy shall meddle." The Act recites that great and common clamour had been made, for that the Admirals and their deputies held sessions, accroaching to them greater authority than belonged to their office, in prejudice of the king and the common law of the realm, and in destruction and impoverishing of the common people, and enacts as follows:-"That the Admirals and their deputies shall not meddle from henceforth of anything done within the realm, but only of a thing done upon the sea, as it hath been used in the time of our noble Prince King Edward, grandfather of our Lord the King that now is." Although this statute was no doubt intended to prevent the Court exercising any jurisdiction except concerning things wholly and exclusively done upon the sea, the Admiralty Court does not seem to have acquiesced in any such interpretation of it. The civil lawyers stoutly contended that the statute did not apply to contracts, and ' the Court continued to assert the disputed jurisdiction; so that after a little time the legislature found it necessary to pass another statute couched in more explicit language. In the 15th year of Richard II., an Act was passed which enacted as follows:-"It is declared, ordained and established that of all manner of contracts, pleas, and quarrels, and all other things rising within the bodies of the counties (i), as all foreign nations they have their distinct judicatories, guided by distinct laws."-Exton. (h) A similar feeling seems to have been entertained in later times in America. The Massachusetts House of Representatives, in the contest before the Revolution, passed the following resolution :-"That the extension of the powers of the Court of Admiralty within this province is a most violent infraction of the right of trials by juries; a right which this House, upon the principles of their British ancestors, hold most dear and sacred." See United States v. New Bedford Bridge, 1 Wood & Min. 401. (i) "That arm or branch of the sea well by land as by water, and also of wreck of the sea, the Admiral's Court shall have no manner of cognizance, power, nor jurisdiction; but all such manner of contracts, pleas, and quarrels, and all other things rising within the bodies of counties, as well by land as by water, as afore, and also wreck of the sea, shall be tried, determined, discussed, and remedied by the laws of the land, and not before nor by the admiral nor his lieutenant in any wise" (k). which is within the fauces terræ, where a man may reasonably discerne between shore and shore, is, or at least may be, within the body of a county." Hale, De Jure Maris, Harg. Law Tracts. p. 10. See Constable's Case, 5 Rep. 106; Reeve's Hist. of English Law, vol. 3, 198 note; 3 Inst. c. 49; R. v. Bruce, 2 Leach, C. C. 1093; The Pauline, 2 W. Rob. 258; and The Saxonia, Lush. 410. Sir Matthew Hale thus describes the jurisdiction of the Court, Hist. Co. Law, 35. "The jurisdiction of the Admiral Court as to the matter of 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, 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 the payment of money, so also of damages in navigable rivers, within the bodies of counties, things done upon the shore at low water, wreck of the sea, &c. These things belong not to the Admiralty jurisdiction, and thus the common law and the statutes 13 Rich 2, c. 15, 15 Rich. 2, c. 3, confine and limit their jurisdiction to matters maritime, and such only as are done upon the high sea." The views adopted by Mr. Justice Story are very different from those of Sir M. Hale. But the great eminence of the distinguished American judge renders his opinion of weight, even though opposed to the notions commonly received and acted upon in England. In the judgment in De Lorio v. Boit (2 Gallison, 467), the following passages occur:-"That the common law interpretation of the statutes abridged the jurisdiction to things wholly and exclusively done upon the sea. That this interpretation is indefensible upon principle, and the decisions founded upon it are inconsistent and contradictory. That the interpretation of the same statutes by the Admiralty does not abridge any of its ancient jurisdiction, but leaves to it cognisance of all maritime matters, and all torts, injuries and offences upon the high sea and in ports as far as the tide ebbs and flows * That the jurisdiction of the Admiralty depends or ought to depend as to contracts upon the subject matter, ie., whether maritime or not, and as to torts, upon the locality, i.e., whether done upon the high sea or in ports within the ebb and flow of the tide or not." (k) The statute, however, contains the following clause relating to the criminal jurisdiction of the Court: "Nevertheless of the death of a man, or a maihem, done in great ships being These enactments created a formidable barrier against the encroachments of the Admiralty, but the judges of the Court cherished, notwithstanding, the idea of general jurisdiction over maritime causes, and refused obedience to statutes, the justice of which they did not acknowledge (). Whenever an opportunity offered, they seem to have asserted forbidden jurisdiction, and although the proceedings in the Court were frequently stayed by the process of prohibition, it was found necessary to provide a more effectual check. Accordingly in the reign of Hen. IV. an Act (m) was passed to give a direct remedy to persons wrongfully pursued in the Court. It enacts that the statute and the common law be holden against the admiral and his lieutenant, and that the party grieved shall have his action on the case against him that doth unlawfully pursue. After this the contest for jurisdiction became altogether unequal, but it was not wholly abandoned, though the efforts of the Court to assert its powers were for long only feeble and intermittent. The civil lawyers attempted, by adopting one of the fictions of the common law, to evade the provisions of the statutes. As improvements were introduced into the common law, the strict rules which formerly prevailed with reference to venue were relaxed in their operation. At common law, in cases where the venue was immaterial, such as cases sounding in contract, the plaintiff was allowed to lay the venue where he pleased, and where a contract was made abroad it was usual to allege a fictitious venue within the realm. It was a common thing for a plaintiff to aver that a contract made at sea was made at the Royal Exchange at Cornhill, and this averment was not traversable because it was not material. In the Admiralty it was sought to introduce similar fictions, and to feign that contracts which really were made on land and hovering in the main stream of great rivers only, beneath the bridges of the same rivers, nigh to the sea, and in none other places of the same rivers, the Admiral shall have cognisance." (1) "From 1389 to 1409 not less than 8 petitions against the admiral were presented to Parliament."-Sir L. Jenkins' Argument. (m) 2 Hen. 4, c. 11; repealed by 24 Vict. c. 10, s. 31; see 3 & 4 Vict. c. 65, s. 19; and see 1 Salk. 31. Empringham's Case, 12 Rep. 84. |