were made at sea. But the courts of common law interfered by prohibition, and held that as the Admiralty Court was a Court of exceptional and limited jurisdiction, it was material in all proceedings there that the real venne should be stated, "and so laid as should appear to the King's Court to be so indeed." The civil lawyers, not unnaturally, refused to recognise the force of this reasoning, and on the question a long controversy was waged, but the power of the superior courts prevailed. Afterwards the right of the Court to adjudicate concerning contracts made on land in foreign parts, and even concerning contracts made at sea under seal, seems to have been questioned, so that, as Godolphin observes, "betwixt land and water, between contracts made beyond sea and obligations made at sea, the Admiralty was like a kind of derelict."

To examine the various cases of prohibition relating to the Admiralty, which are to be found in the early reports (n), would be a long and tedious labour. It is sufficient to observe that although the common lawyers were not able always to hold, firmly and consistently, the ground which they had taken, they seem, so far as they could, to have acted upon the broad rule that nothing was to be left to the Admiralty of which the common law could conveniently take cognisance. This principle, though not always avowed, and often hidden behind quaint arguments, and sometimes only loosely enforced, seems to have been the guiding principle of all the early decisions (o). Had the system of common law

(n) Many of the early cases are cited in the Fourth Institute. See also Sheppard's Epitome, 361, Hughes' Ab. Tit. Admiralty, Rolle's Abridg., part 1, p. 528. Viner's Abridgment, vol. 6, p. 505.

(0) The following passage is taken from the judgment of the Hon. Mr. Justice Johnson, in the case of Ramsay v. Allegre, 12 Wheaton, 620.-"The one principle runs through all the decisions of the common law courts, that of subjecting to the trial by jury every cause in which that form of trial could

be applied, without injury to the parties' rights. It is true, that where they found them in the exercise of a power analogous to that of a Court of Equity, they did not take from the Admiralty a power which they should only have handed over to another civil law court; they had no motive, if they had the power, to make the transfer. And hence the Admiralty is left in the exercise of jurisdiction in cases of hypothecation, bottomry, and a kind of specific execution between part owners of ships. Their jurisdiction of prize

procedure been more elastic than it was, doubtless it would have been made to embrace the whole jurisdiction of the Admiralty, and one great anomaly in our law would thus have been removed. But the technical process of the courts of common law limited their jurisdiction, and hampered their procedure; and it was impossible, with any show of justice, to prohibit suitors from resorting to the Admiralty in cases where that Court alone could afford a satisfactory remedy. So that, as matters at last adjusted themselves, the Admiralty judges, although compelled to abandon all claim to general maritime jurisdiction, were yet suffered to exercise undisputed authority in all maritime cases where the common law could not give redress.

The Admiralty Court was left in possession of its jurisdiction over torts committed on the high seas, for that had never been disputed, and in suits of salvage also its authority prevailed, for that was regarded as a branch of the royal prerogative, with the exercise of which the court was properly entrusted. In suits of possession the Admiralty acquired jurisdiction, because it afforded a summary process unknown to the common law, by which the possession of the very thing in dispute was at once dealt with. Again, in cases of hypothecation the Admiralty was suffered to exercise jurisdiction, because the contract of hypothecation was not recognised by the common law, and it was only in the Admiralty that the

and salvage are royalties, and that over seamen's wages is a peculiarity, but perfectly reasonable and consistent, in whatever light it be viewed. In the sea laws it is called 'a custom of the realm.' Holt, C.J., put it on the ground of a positive concession and communis error. And the judges often say, we permit them to exercise this jurisdiction because they may sue toge ther there, and must sue severally in the common law courts, and there they can have remedy upon the body of the vessel which they cannot have here;' thus placing the exception in their favour upon the conceded ground

of incapacity in the Common Law to do
complete justice, and the equitable
ground of preventing a multiplicity of
suits. My own opinion is that it
stands on a much higher ground, and
has its basis in the same policy which
makes their wages to depend on the
safety of the ship they navigate, by
giving them in that event every possible
chance of getting compensation.
which we may add that their thought-
less character and ignorance renders
them emphatically the wards of the
Admiralty, while the law on which
they earn or lose their wages is a
system of the Admiralty."

То

thing hypothecated could be directly proceeded against. Over seamen's wages the court, though only after a severe struggle, obtained jurisdiction, apparently on the grounds that as the crew could sue together in the Admiralty Court, the remedy there was more convenient than at law, and that seamen were entitled to the advantage the Admiralty afforded them of having the ship itself arrested as a security for their wages. These were the only matters left within the jurisdiction of the court, and even as to some of these the Admiralty judges were compelled to move within very narrow limits (p).

In the time of James I. the civil lawyers, greatly dissatisfied that the Admiralty was unable to exercise general jurisdiction over maritime contracts, and exasperated at the "daily prohibitions" which were issued, conceived the idea of seeking the interference of the crown on behalf of the court. The king, who was vain of his prerogative, and not too favourably inclined towards the common law, encouraged their suit (q). In the eighth year of his reign he summoned the judges to be present at a council, at which he received a petition from the judge of the Admiralty Court. The petition, among other things, requested that the judge of the Admiralty might have and enjoy the cognition of all contracts and other things arising upon the sea, and contracts made beyond the sea, without any let or prohibition, and that the said judge might have and enjoy the knowledge of breach of charter-parties for voyages to be made to parts beyond the sea (r). In support of the petition, it was stated, though on what foundation it is difficult to ascertain, that thirty-eight years before, in the reign of Elizabeth, the judges of the Queen's Bench had given their assent to its main articles (s).

(p) See post, Possession, Wages. Molloy, B. 2, c. 3, s. 8.

(9) See the extract from the King's Speech on the advantage of the civil law, cited by Sir L. Jenkins in his argument. Life of Jenkins, vol. i.

(r) It is curious to note that one of the articles in the petition was to the following effect. That the clause non obstante statuto which hath foundation

in his Majesty's prerogative, and is current in all other grants, yet in the Lord Admiral's patent is said to be of no force. Lord Coke observes as to this article, that it is not worthy of

answer.

(8) The document does not seem to have been made public in the reign of Elizabeth. But see Zouch. Jurisdic. of Admiralty Asserted, p. 121. In weigh

But Lord Coke, who was chief justice of the Common Pleas, and the other judges, altogether repudiated the " supposed agreement" in the time of Queen Elizabeth, and declined to accede to the prayer of the petition. In the Fourth Institute Lord Coke gives an account of what took place before the king (t). It is there stated that at the conference the king desired that the complaint should be set down in writing by Dr. Dunn, judge of the Admiralty, and that the judges of the realm should deliver answers to the same. The articles of complaint, together with the answers of the judges in writing, which were accordingly delivered to the king, are set out at length by Lord Coke, and supported by numerous authorities cited by him (u). These answers distinctly reply to the articles of complaint, and deny all the material assertions contained in them. After this conference with the king, the judges, as Prynne observes, granted more prohibitions to the Admiralty than ever before; and their vigorous conduct seems to have prevented any further effort being made during the reign of James, to extend the jurisdiction of the Court (a).

ing the statements made by the civil lawyers at the period in question, it should be remembered that their assertions are obviously not impartial. There is reason to suppose that the common lawyers were sometimes restrained from publishing matter displeasing to the Court. All Lord Coke's papers were seized at his death. In the 12th vol. of the Reports, p. 104, the following note is appended to Tomlinson's Case. "This case was intended to have been inserted by my Lord Coke into his Seventh Report, but was not then published because the king commanded that it should not be printed; but the judges resolved ut supra." The case decides that the Admiralty Court is no Court of Record. (t) 4 Inst. 135.

(u) In the case of Smart v. Wolfe, 3 T. R. 348, Mr. Justice Buller ob

serves-"With respect to what is said relative to the Admiralty jurisdiction in 4 Inst. 135, I think that that part of Lord Coke's work has been always received with great caution, and frequently contradicted. He seems to have entertained not only a jealousy of, but an enmity against, that jurisdiction." In the case of Ramsay v. Allegre, 12 Wheaton, 623, Mr. Justice Johnson states that the answer given in 4 Inst. is "a calm, dignified, learned, and triumphant answer."

(x) See Empringham's Case, 12 Rep. 84, where one of the marshals of the Court was sentenced by the Star Chamber to fine and imprisonment, and ordered to make restitution. One of the charges against the defendant was that he had caused divers to be cited to appear before him for things done in the body of a county.

In the time of Charles I. the bench was occupied by men who, for the most part, were mere instruments in the hands of the Court, and little difficulty was experienced in obtaining from them an extra-judicial opinion in favour of the Admiralty. Noy, the Attorney-General, a man of “venal diligence and prostituted learning," who originated the scheme of levying ship-money, seems to have taken an active part in promoting this proceeding. Whether Noy expected that by extending the jurisdiction of the Court of Admiralty he would be able to make it an instrument for the furtherance of his scheme of oppressive taxation does not appear (y), but several of the judges who supported him by their opinions in the matter of the Admiralty, afterwards obtained an unhappy notoriety in the case of ship-money. In the year 1632, articles were drawn up, read, agreed, and resolved at the council board by the king himself, and no less than twentythree of his council, and ratified by the subscriptions of all the judges of the superior courts, of the judge of the Admiralty Court, and of Noy the Attorney-General (2). The resolutions in substance declare that the Admiralty shall have jurisdiction over contracts made beyond sea, and to entertain suits for breach of charter-parties for voyages to

(y) Prynne, in his treatise on the 4th Inst., volunteers the statement that the resolutions concerning the Admiralty Court were never complained against in the debates in Parliament on the case of ship-money. In the American colonies the jurisdiction of the Admiralty Court seems to have been extended so as to enforce the payment of taxes. In the preamble to the declaration of the rights of the colonies in Oct., 1774, one of the grievances complained of was that Parliament had by late acts "extended the jurisdiction of the Courts of Admiralty not only for collecting the said duties, but for the trial of causes arising within the body of a county." See Bains v. James and Catherine, 1 Bald.

(2) Sir Thos. Richardson was Lord Chief Justice at this time, and Sir Robert Heath, who had a little before obtained such unenviable notoriety as Attorney-General, was Chief of the Common Pleas. Sir Richard Hutton and Sir George Croke were among the most reputable judges who signed the resolutions. It is to be observed that these judges seem to have attached little importance to the extra-judicial opinions which, according to the pernicious practice of the time, were demanded of them. In the case of shipmoney, Croke and Hutton signed, along with the other judges, an extra-judicial opinion in favour of the tax, but on the bench they both had the courage to pronounce a contrary opinion.