Erastus Cornelius Benedict.

The American admiralty, its jurisdiction and practice, with practical forms and directions online

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as the Captains, Lieuts., or warrant officers, in any ol
war, or Captains, Masters or Mates, of some English
capable of being so called, and sitting and voting in th

§ 145. "And it is further enacted, that such persoi
assembled as aforesaid, shall have full power and autl
ing to the coui-se of the Admiralty, to issue warrants
any persons accused of pyracy or Robery before then
heard, and adjudged, and to summon witnesses, and i
mations and Examinations of witnesses upon their o
ail things necessary for the hearing and final determi
case of pyi-acy, robery and felony, and to give Senter
ment of death, and to award execution of the offeno

• 6 Evans* Stat. 126.



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76 THE AMERICAN ADMIEAI^TY.

and attainted as aforesaid, according to the will, acts, and the meth-
ods and rules of the Admiralty ; and that all and every person and
persons so convicted and attainted of pyracy and robery, shall have
and suffer such losses of lands, goods, and chattels, as if they had
been attainted and convicted of any piracies, felonies, and roberies,
according to a statute made in the 28.th year of the reign of King
Henry the Eighth, for tryalls of pyracies or Roberies upon the high
sea.

§ 146. " Now Know Ye, that we, in pursuance of the said act of
our special grnce, certain knowledge and mere motion, have made,
constituted and appointed, and by these presents do make, consti-
tute and appoint you, the said Richard, Earl of Bellamont, and the
Govr. or Commander in Chief of the said province of New York
for the time being; John Nanfan, and the Lieut. Govr. of the said
province for the time being ; the Govr. of our CoUony of Connecti-
cut for the time being ; the Vice Admiral or Vice Admirals of our
said province of New Yorke, East and West New Jersey, and Con-
necticut, for the time now, and for the time being; Stephen Cort-
land, William Smith, Peter Schuyler, John Young, James Gmham,
A. Depeyster, Robert Livingston, Saml. Staats, John Carbill, and
Robert Walters, members of our Council in the said province of
New Yorke, during their continuance in the said Council, and the
members of our Council in the said province for tlie time being ;
our Chief Justice in our said province of New York for the time
being ; our Judge or Judges of the Vice Admiralty in the said prov-
inces of New Yorke, East and West New Jersey and Connecticut,
now and for the time being; the Capt. and Commander of our
Ships of War within the Admiralty Jurisdiction of the said prov-
inces of New Yorke, East and West New Jei-seys and Connecticut,
now and for the time being ; the Secretary of the said province of
New Yorke, now and for the time being: Thomas Weaver, and
the receiver of our revenue of the province of New York for the
time being; Patrick Mayne and Edward Randolph, and the Sur-
veyor General of our Customs in America for the time being ; our
Collectors yf our plantation duties in the said provinces of New
York, and East and West New Jerseys and Connecticut, for the time
being, and George Larbin, to be our Commissioners at the said
several provinces of New York, East and West New Jersey, and
Connecticut, for the examining, enquiring of, trying, hearing, and



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THE COLONIAL ADMIKALTY JURI8DICTIOI

determining and adjudging, according to the direction
act, in any place at sea, or upon the land, at the said
New York, East and West New Jeiseys, and Connect!
cies, fellonies, and roberies, committed, or which shall b
in or upon the sea, or 'within any haven, river, ere
where the Admiral or Admirals have power, authoritj
tion. And you, the said Richard, Earl of Bellamont, a
or Commander in Chief of the said province of New '^
time being; John Nanfan, and the Lieut. Govr. or Cc
Chief of the said province, for the time being ; the Gov
lony of Connecticut for the time being; the Vice Adi
Admirals of our said provinces of New Yorke, East an
Jersey, and Connecticut, now, and for the time being ; £
land, William Smith, Peter Schuyler, John Young, Jai
Abraham Depeyster, Robert Livingston, Samual Staats,
and Robert Walters, membei*s of our Council in the si
during their continuance in the said Council, and the
our said Council in the said province, for the time
Chief Justice in our said province of New York, for the
our Judge or Judges of the Vice Admiralty in the si
of New York, East and West New Jersey and Connecti
for the time being ; the Captains and Commandei'S o
of War within the Admiralty Jurisdiction of the said
New York, East and West New Jerseys and Connecti
for the time being; the Secretary of the said prov
Yorke, now and for the time being ; Thomiis Weaver
ceiver of our revenue of our said province of New 'l
time being; Patrick Mayne, and Edward Randolph,
veyors Genl. of our Customes in America ; our Colh
plantation duties in the said provinces of New Yorl
West New Jersey and Connecticut, for the time being ;
bin, our Commissioners at the said provinces of New Yi
West New Jersey and Connecticut, for the purposes
mentioned ; we do make, ordain and constitute, by th<

§ 147. " Hereby giving and granting unto you, our i
sioners, jointly or severally, or any one of you, by w
the hand and seal of you, or any one of you, full powe;
ity to committ to safe custody any person or peraons a
Information of pyracy, robery, or felony upon the sea, s



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78 THE AMERICAN ADMIRALTY.

upon oath, which oath you, or any one of you, shall have full power,
iind are hereby required to administer to all, and assemble a Court
of Admiralty on Ship board, or upon the land, when, and as often
as occasion shall require (which Court, our will and pleasure is),
shall consist of seven persons at the leasf, and if so many of you,
our said Commissioners, cannot conveniently be assembled, any
three or more of you, whereof you, the said Richard, Earl of Bella-
mont, or the Govr. or Commander in Chief of New Yorke, East and
West New Jersey, or Connecticut, or either of the said places for
the time being, always to be one, shall have full power and authority,
by virtue of the said act and of these pei'sons, to call and assemble
any other pei*sons on ship board, or upon the land, to make up the
number of seven ; provided, that no persons but such as ai-e known
merchants, factors, or persons, or such as are Captains, Lieutenants,
or warrant officers in any of our ships of war. Captains, Masters, or
Mates, of some English Ships, shall be capable of being so called,
sitting and voting in the said court.

§ 148. " And our further will and pleasure is, and we do hereby
expressly declare and command, that such persons, called and as-
sembled as aforesaid, shall have full power and authority, according
to the course of the Admiralty, to issue warrants for bringing any
persons accused of pyracy or robery before them, to be tried, heard,
and adjudged, and to summon witnesses, and to take informations
and examinations of witnesses upon their oath, and to do all things
necessary for the hearing and final determination of any case of py-
racy, robery, or felony upon the sea, and to give sentence and judg-
ment of death, and to award execution of the offenders, convicted
and attainted as aforesaid, according to the civil laws and the meth-
ods and rules of the Admiralty ; and that all and every person or
persons so convicted or attainted of pyracies and robery, shall have
and suffer such losses of lands, goods, and chattels, as if they had
been attainted and convicted of any pyracies, felonies, and roberies,
according to the aforementioned statute made in the reign of King
Henry the Eighth.

§ 149. " And our express will and pleasure is, and we do hereby
direct and command, that so soon as any Court shall be assembled
as aforesaid, either on ship board, or upon the land, this our commis-
sion shall fii-st be openly read, and the said Court, then and there.



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THE COLONIAL ADMIRALTY JURISDICTION. 79

shall be solemnly called and proclaimed, and then yon, the said
Richard,* Earl of Bellamont, or the Govr. or Commander in Chief
of New Yorke, East and West New Jersey or Connecticut, or either
of the said places for the time being — shall, in the first place, pub-
licly in open Court, take the oath appointed in the said act ; and
you, the said Richard, Earl of Bellamont, or the Govr. or Comman-
der in Chief of New Yorke, East and West New Jersey, or Connect-
icut, or either of the said places, for the time being, having taken
the oath in manner and form aforesaid, shall individually adminis-
ter the same to every person who shall sit and have and give a voice
in the said Court, upon the trial of such prisoner or prisoners as afore-
said. And lastly, we do hereby direct, impower and require you, our
said Commissioners, to pmceed, act, adjudge and determine in all
things according to your powers, authority and directions of the
above recited act, and of these presents ; and the entry or enroll-
ment thereof, shall be unto you, and each and every of you, for so
doing, a sufficient warrant and discharge.

" In witness whereof, we have caused these our lettera to be made
patent. Witness ourself, at Westminster, the 23d day of No-
vember, in the twelfth year of our reign."

§ 150. Judge Morris' Commission. — The commissions to the
judges of the vice-admiralty courts were equally full and explicit
in their grant of jurisdiction, and it was under these commissions
that the judicial powers of the admiralty, in civil causes, were ac-
tually administered in the colonies, from the beginning to the time
of our Revolution.

The commission to Hon. Richard Morris, dated 15th Oct., 1762,
was as follows : —

Commission of the Vice-Admiralty Judge,

** Letters patent granted to Richard Morris, Esq., for the office of
Judge of the respective Courts of the Provinces and Colonys of
New York, Connecticut, and East and West Jerseys, in America.

§ 151. " George the Third, by the grace of God, of Great Britain,
France and Ireland, King, defender of the faith: To our beloved
Richard Morris, Enquire, greeting : We do by these presents, make,
ordain, nominate and appoint you, the said Richard Moms, Esquire,
to be our Commissary in our provinces and colonies of New York,



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80 THE AMERICAN ADMIRALTY.

Connecticut, and East and West Jerseys, in America, and Territories
thereunto belonging, in the room of the former judge, deceased,
hereby granting unto you full power to take cognizance of, and pro-
ceed in all causes civil and maritime, and in complaints, contracts,
o£fences, or suspected offences, crimes, pleas, debts, exchanges, pol-
icies of assurance, accounts, charter parties,^ agreements, bills of
loading of ships, and all matters and contracts which in any manner
whatsoever, relate to freight due for ships, hired or let out, trans-
port money or maritime usury (otherwise bottomry), or which do
any ways concern suits, trespasses, injuries, extortions, demands,
and affairs civil and maritime whatsoever, between merchants or
between owners and proprietors of ships, or other vessels, and mer-
chants, or other pei'sons whomsoever, with such owners and pro-
prietors of ships or other vessels whatsoever, employed or used, or
between any other persons howsoever had, made, began, or con-
tracted for any matter, cause or thing, business, or injury whatso-
ever, done or to be done as well in, upon, or by the sea, or public
sti*eams, or fresh waters, ports, rivera, creeks, and places overflowed
whatsoever, within the ebbing and flowing of the sea, or high water
mark, as upon any of the shores, or banks adjoining to them or
either of them, together with all and singular their incidents, emer-
gencies, dependencies annexed and connexed causes whatsoever ;
and such causes, complaints, contracts and other the premises afore-
said, or any of them howsoever the same may happen to arise, be
contracted, had, or done, to hear, and determine (according to the
civil and maritime laws and customs of the High Court of Admi-
ralty in England), in our said provinces and colonies of New York,
Connecticut, and East and West Jei-seys, in America, and territo-
ries thereunto belonging whatsoever, and also with power to sit and
hold courts in any cities, towns, and places in our provinces and
colonys of New York, Connecticut, and East and West Jei-seys, in
America aforesaid, for the having and determining of all such causes
and businesses, together with all and singular their incidents, emer-
gencies, dependencies annexed and connexed causes whatsoever, and
to proceed judicially and according to law, in administering justice
therein.

§ 152. " And moreover, to compel witnesses, in case they with-
draw themselves for intei*est, fear, favor, or ill-will, or any other
7 Vide The Elizabeth, 1 Hag. Ad. 226.



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THE COLONIAL ADMIKALTY JUTtlSDICTION. 81

cause whatsoever, to give evidence to the truth in all and every the
causes above-mentioned, according to the exigences of the law. And
further, to take all manner of recognizances, cautions, obligations,
and stipulations, as well to our use, as at the Instance of any parties
for agreements or debts and other causes and businesses whatsoever,
and to put the same in execution, and to cause and command them
to be executed. Also, duly to search ani enquire of and concern-
ing all goods of traitors, pirates, manslayers, felons, fugitives and
felons of themselves, and concerning the bodies of persons drowned,
killed, or by any other means coming to their death in the sea, or
in any ports, rivers, public streams, or creeks, and places ovei-flowed ;
and also concerning mayhem happening in the aforesaid places, and
engines, toils and nets prohibited and unlawful, and the occupiers
thei-eof. And moreover, concerning fishes royal, namely, whales,
kiggs, grampusses, dolphins, sturgeons, and all other fishes whatso-
ever, which are of a great or very large bulk or fatness, by right or
custom any ways used, belonging to us and to the office of our High
Admiral of England.

§ 153. " And also of and concerning all casualties at sea, goods
wrecked, flotzon, jetson, lagon, shares, things cast overboard and
wreck of the sea, and all goods taken, or to be taken as derelict, or
by chance found or to be found ; and all other trespasses, misde-
meanors, offences, enormities, and maritime crimes whatsoever, done
and committed, or to be done and committed as well in and upon
the high seas, as all ports, rivers, fresh watera, and creeks, and shores
of the sea to high water mark, from all first bridges towards the sea,
in and throughout our said provinces and colonies of New York,
Connecticut, and East and West Jerseys, in America, and maritime
coasts thereunto belonging, howsoever, whensoever, or by what
means soever arising or happening.

§ 154. "And all such things as are discovered and found out, as
also all fines, mulcts, amersements and compositions due and to be
due in that behalf ; to tax, moderate, demand, collect and levy, and
to cause the same to be demanded, levied, and collected, and accord-
ing to law to compel and command them to be paid.

§ 156. " And also to proceed in all and every the causes and busi-
nesses above recited, and in all other contracts, causes, contempts
6



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82 THE AMERICAN ADMIRALTY.

and ofifences whatsoever, howsoever contracted or arising (so that
the goods or persons of the debtors may be found within the juris-
diction of the Vice-Admiralty, in our provinces and colonies of
New York, Connecticut, and East and West Jerseys, in America,
aforesaid), according to the civil and maritime laws and customs of
our said High Court of Admiralty, of England, anciently used, and
by all other lawful ways,'<neans, and methods, according to the best
of your skill and knowledge. And all such causes and contracts to
hear, examine, discuss, and finally determine, saving, nevertheless,
the right of appealing to our aforesaid High Court of Admiralty of
England, and to the Judge or President of the said court, for the
time being. And saving also the right of our said High Court of
Admiralty of England, and also of the Judge and Register of the
same Court, from whom, or either of them, it is not our intention
in anything to derogate by these presents.

§ 156. " And also to arrest, and cause, and command to be arrested,
all ships, persons, things, goods, wares and merchandizes for the
premises, and every of them, and for other causes whatsoever, con-
cerning the same, wheresoever they shall be met with, or found,
within our provinces and colonies of New York, Connecticut, and
East and West Jei-seys, in America aforesaid, and temtories, thereof,
either within liberties, or without, and to compel all manner of per-
sons in that behalf, as the case shall require, to appear and to answer
with power of using any temporal coercion, and of inflicting any
other penalty or mulct, according to the laws and customs aforesaid :
and to do and minister justice according to the right order and
course of the law, summarily and plainly, looking only into the
truth of the fact.

§ 157. " And we impower you in this behalf, to fine, correct, pun*
ish, chastise, and reform, and imprison, and cause and command to
be imprisoned, in any gaols, being within our provinces and colonies
of New York, Connecticut, and East and West Jerseys, in America,
aforesaid, and maritime places of the same, the parties guilty, and
violators of the law and jurisdiction of our admiralty afoi*esaid, and
usurpers, delinquents, and contumacious absentees, masters of ships, -
mariners, rowei-s, fishermen, shipwrights, and all other workmen and
artificers whomsoever, exercising any kind of maritime affairs, as
well according to the aforementioned civil and maritime laws, and



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THE COLONIAL ADMIRALTY JURISDICTION. 83

ordinances, and customs aforesaid, and their demerits, as according
In the statutes and ordinances aforesaid, and those of our kingdom
of Great Britain, for the Admiralty of Engknd, in that behalf made
and provided.

§ 158. " And to deliver and absolutely discharge, and cause and
command to be discharged, whatsoever persons imprisoned in such
cases, who are to be delivered and to promulge and interpose all
manner of sentences and decrees, and to put the same in execution,
with cognizance and jurisdiction of whatsoever other causes, civil
and maritime, which relate to the sea, and which any manner of
ways respect or concern the sea, or passage over the same, or naval
or maritime voyages performed, or to be performed, or the maritime
jurisdiction above said, with power also to proceed in the same ac-
cording to the civil and maritime laws and customs of our aforesaid
Court, anciently used as well those of mere office mixt or promoted,
as at the instance of any party, as the case shall require and seem
convenient.

§ 159. " And we do by these presents (which are to continue
during our royal will and pleasure only), further give and grant
unto you, Richard Morris, Esquire, our said Commissary, the power
of taking and receiving all and every, the wages, fees, profits, advan-
tages and commodities whatsoever, in any manner due and anciently
belonging to the said office, according to the custom of our High
Court of Admiralty of England, committing unto you our power
and authority concerning all and singular, the premises in the sev-
eral places above expressed (saving in all things the prerogative of
our High Court of Admiralty of England aforesaid), together with
power of deputing and suiTOgating in your place for and concern-
ing the premises, one or more deputy or deputies, as often as you
shall think fit.

§ 160. ** Further, we do in our name comiyand, and firmly and
strictly charge, all and singular, our (jovernors. Commanders, Jus-
tices of the Peace, Mayors, Sheriffs, Mai-shals, Keepers of all our
Gaols and Prisons, Bailiffs, Constables, and all other our officers and
ministers and faithful liege subjects, in and throughout our afore-
said province and colonies of New York, Connecticut, and East and
West Jerseys, in America, and the territories thereunto belonging;



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84



THE AMERICAN ADMIRALTY.



that in the execution of this our commission, they be from time to
time aiding, assisting, and yield obedience in all things, as is fitting
unto you and your deputy whomsoever, under pain of the law and
the peril which will fall thereon. Given at London, in the High
Court of our Admiralty aforesaid, under the great seal thereof, the
sixteenth day of October, in the year of our Lord, one thousand seven
hundred and sixty-two, and of our reign the second."

His predecessor, Hon. Lewis Morris, held the office from 1738,
under a commission in tlie same words. These commissions were
translations of the commissions of the Hon. Roger Mompesson and
the Hon. Francis Harrison, who had previously filled this office ; and
they embraced the colonies from Delaware to Massachusetts inclu-
sive.®

§ 161. Force of these Commissions. — Tn these commissions and
letters patent were found the source, extent, and definition of the
admimlty and maiitime jurisdiction in the colonies. I am not awai-e,
that, up to the Revolution, any British statute in relation to the ad-
miralty jurisdiction named the colonies ; and the well known prin-
ciples that statutes do not bind the colonies unless they are named,
and that the king's commission runs through his whole dominions,
are sufficient to make these commissions the legitimate source and
law of the admiralty jurisdiction in the colonies. They declare that



^ A memorandum of such other com-
missions as I have seen is here insert-
ed, to sliow their territorial extent.
They are to be found in the office of
the Secretary of JState of New York.

James, Duke of York, etc., to Thom-
as Dongan, commission as. (Governor of
New York and the Islands, dated Sep-
tember 30, 1682. His commission, as
vice-admiral for the same, is dated Oc-
tober 3, 1682.

James II. to Edmund Andross, com-
mission as Governor of ^ew York and
New England, April 7, 1688.

William and Mary, to Henry Slough-
ter, commission as Governor, dated Jan-
uary 4, 1689.

The same to Benj. Fletcher, commis-
sion as Vice-Admii*al of New York,
East and West New Jersey, Newcastle



and dependencies, dated 1603.

William III., to the Earl of Bella-
mont, commission of Vice-Admiral of
New York, Massachusetts Bay, New
Hampshire and dependencies, 1698.

Commission of Roger Mompesson,
Judge of the Court of Vice- Admiralty
in Massachusetts Bay, New Hampshire,
Connecticut, Rhode Island, the Jerseys,
New York and Pennsylvania, and de-
pendencies, April 1, 1703.

George I., to Francis Harrison, com-
mission as Judge of the Court of Vice-
Admiralty of New York, 13th February,
1721.

George 11., to Lewis Morris, commis-
sion as Judge of the Vice-Admiralty
Courts of New York, Connecticut, and
East and West Jerseys, 16th January,
1738.



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THE COLONIAL ADMIRALTY JURISDICTION.

jurisdiction to extend to all causes, civil and maritime, eml
charter parties, bills of lading, policies of assurance, accounts
exchanges, agreements, complaints, offences, and all niatteit
ill any manner whatsoever relate to freight, transport mone]
time loans, bottomry, trespasses, injuries, extortions, deman
affaii-s whatsoever, civil and maritime. These general word
the most comprehensive character, and include all matters wl
in their nature maritime, while all those causes of which juvia
has been denied to the English Admiralty, are especially en ur
as admii-alty and maritime causes.^

§ 162. Local Extent of Their Jurisdiction When we loc

to the extent of this jurisdiction, so far as place is concerned,
it equally extensive, extending to eveiything done in, upor
the sea, or public streams, or fresh waters, ports, rivei*s, cree
places overflown whatsoever, within the ebbing and flowing
sea, or high water mark, from all fii-st bridges toward the sei

§ 163. Jurisdiction over Persons. — So far as pei-sons a
cerned, it is also equally extensive, embracing all dem.inds anc
between merchants, or merchants and owners of ships or other
and other pei-sons whomsoever, for any matter, cause or thin
ness, or injury whatsoever, done as well in, upon, or b}' the sea,
lie streams, or fresh water, ports, rivei-s, cieeks, and places ove
whatsoever, within tlie ebbing and flowing of the sea, or higl
mark, as upon any of the shores or banks adjoining to them



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 10 of 80)