Erastus Cornelius Benedict.

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

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submitted to the king by the Lord High Admiral, and the Judge
of the Admimlty. His Majesty ordered Dr. Dunn, the Judge of
the Admiralty, to arrange the mattei-s of complaint in specific arti-
cles, and, it seems, to submit them to the common law judges, to be
answered by them ; and they are said, by Coke, to have made the
answers which he gives, and which breathe his imperious spirit.
The irresolute James does not appear to have made any order in
the premises, but to have allowed the agreement of 1575, and the
Court of Admimlty, to defend themselves as they best could ; and
Coke triumphed.*

»Edw. Ad. Juris. 20.

«iiaU*8 Ad. Intxo. x; Prynne, 99; Edwards' Ad. 20; HaU's Ad. Intro. xxU.



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44 THE AMERICAN ADMIRALTY.

This list of grievances is known as Articuli AdmiralitatU. They
are as follows, with the caption of Coke: —

" Articuli Admiralitatia.

§ 82. The Same.—" The complaint of the Lord Admiral of Eng-
land to the King's most Excellent Majesty, against the Judges of the
Realm, concerning Prohibitions granted to the Court of the Admi-
ralty, 11 die Febr, ultimo die Termini Hillarii^ Anno 8 Jac. Itegi%:
The effect of which complaint was after by his Majesties command-
ment set down in Articles by Doctor i>wn. Judge of the Admiralty ;
which are as folio we th, with answers to the same by the Judges of
the Realm : which they afterwards confirmed by thi-ee kinds of Au-
thorities in Law. 1. By Acts of Parliament. 2. By judgments and
judicial proceedings ; and lastly, by Book cases.^

" Certain Grievances, whereof the Lord Admiral and his officers
of the Admii-alty do especially complain, and desire redress.

§ 83. The Same. — "1«^ Objection, — That whereas the conusance of
all contracts and other things done upon the sea, belongeth to the
Admiral jurisdiction, the same are made triable at the common law,
]>y supposing the same to have been done in Cheapside, or such places.

" Tlie Answer, — By the laws of this realm the Court of the Ad-
mii*al hath no conusance, power or jurisdiction of any manner of
contract, plea or querele within any county of the realm, either upon
the land or the water: but every such contract, plea or querele, and
all other things rising within any county of the realm, either upon
the land or the water, and also wreck of the sea ought to be tried,
determined, discussed and remedied by the laws of the laud, and
not before or by the Admiral nor his Lieutenant in any manner.
So as it is nut material whether the place be upon the water infra
Jluxum and refluxum aqtue : but whether it be upon any water within
any county. Wherefore we acknowledge that of contracts, pleas
and querels made upon the sea, or any part thereof which is not
within any county (from whence no trial can be had by twelve men)
the Admii-al hath, and ought to have jurisdiction. And no prece-
dent can be showed that any prohibition hath been granted for any
contract, plea or querele concerning any marine cause made or done
upon the sea, taking that only to be the sea wherein the Admiral
hath jurisdiction, wTiich is before by law described to be out of any
county. See more of this matter in the answer to the sixth article.

* Zouch, Intro. ; 4 Inst 134.



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STRIFE BETWEEN COMMON LAW AND ADMIRALTY COURTS. 45

§ 84. The Same. — " 2d, Objection. — When actions are brought in
the Admiralty upon bargains and contracts, made beyond the seas,
wherein the common law cannot administer justice, yet in these
cases prohibitions are awarded against the Admiral Court.

" The Answer, — Bargains or contracts made beyond the seas,
wherein the common law cannot administer justice (which is the
effect of this article), do belong to the constable and marshal : for
the jurisdiction of the Admiral is wholly confined to the sea, which
is out of any countj\ But if any indenture, bond or other specialty,
or any contract be made beyond the sea, for doing of any act or
payment of any money within this realm, or otherwise, wherein the
common law can administer justice, and give ordinary remedy ; in
these cases neither the constable and marshal, nor the Court of the
Admiralty hath any jurisdiction. And, therefore, when this Court
of the Admiralty hath dealt therewith in derogation of the common
law, we find that prohibitions have been granted, as by the law
they ought.

§ 85. The Same. — " Si Objection. — Whereas, time out of mind,
the Admiral Court hath used to take stipulations for appearance
and performance of the acts and judgments of the same court: it is
now affirmed by the judges of the common law that the Admiral
Court is no Court of Record, and therefore not able to take such
stipulations : and hereupon prohibitions are granted to the utter
overthrow of that jurisdiction.

" Hie Answer. — The Court of the Admiralty proceeding by the
civil law is no Court of Record, and therefore cannot take any such
recognizance as a Court of Record may do. And for taking of re-
cognizances against the laws of the realm, we find that prohibitions
have been granted, as by law they ought. And if an erroneous sen-
tence be given in that court, no writ of error, but an appeal before
certain delegates doth lie, as it appeareth by the statute of 8 Eliz.
Reginse, cap. 5, which proveth that it is no Court of Record.

§ 86. The Same. — " 4th Objection. — That charter parties, made
only to be performed upon the seas, are daily withdrawn from that
court by prohibitions.

" The Answer. — If the charter party be made within any city, port,
town or county of this realm, although it be to be performed either
upon the seas, or beyond the seas, yet is the same to be tried and



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46 THE AMEBIC AN ADMIRALTY.

determined by the ordinary course of the common law, and not in
the Court of the Admiralty. And therefore when that court hath in-
ci-oached upon the common law in that case, the Judge of the
Admiralty and the party suing there have been prohibited, and often-
times the party condemned in great and grievous damages by the
laws of the realm.

§ 87. The Same.—" 5th Objection.— The^t the clause of :Nbn oh-
atante Btatuto^ 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 to warrant the determination of the causes
committed to him in his Lordship's Patent, and so rejected by the
judges of the common law.

" The Answer. — Without all question the statutes of 13 R. 2, cap.
3, 15 R. 2, cap. 5, and 2 H. 4, cap. 11, being statutes declaring the
jurisdiction of the Court of the Admiral, and wherein all the sub-
jects of the realm have interest, cannot be dispensed with by any
non obstante^ and therefore not worthy of any answer ; but by colour
thereof, the Court of the Admiralty hath, contrary to those Acts of
Parliament, incroached upon the jurisdiction of the common law, to
the intolerable grievance of the subjects, which hath oftentimes
urged them to complain in your Majesty's Courts of ordinary jus-
tice at Westminster, for their relief in that behalf.

§ 88. Tlie Same.—" %th Objection,— To the end that the Admiral
Jurisdiction may receive all manner of impeachment and interrup-
tion, tlie rivers beneath the fii*st bridges,^ where it ebbeth and floweth,
and the ports and creeks are by the judges of the common law af-
firmed to be no part of the seas, nor within the Admiral Jurisdiction :
and thereby prohibitions are usually awarded upon actions depend-
ing in that court, for contracts and other things done in those places ;
notwithstanding that by use and practice time out of mind, the Ad-
miral Court have had jurisdiction within such ports, creek and
rivei-s.

" The Answer. — The like answer as to the fii-st. And it is further
added, that for the death of a man, and of mayhem (in those two
cases only) done in great ships, being and hovering in the main stream
only beneath the points ^ of the same rivei's nigh to the sea, and no



^Pontes, pontibuSy bridges, it will be
perceived, are translated by Coke,
points, meaning the headlands as the



mouth of the rivers — a gross perversion
of language.



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STRIFE BETWEEN COMMON LAW AND ADMIRALTY COURTS. 47

Other place of the same rivers, nor in other causes, but in those two
only, the Admiral hath cognizance. But for all contracts, pleas and
querelii made or done upon a river, haven, or creek, within any
county of this realm, the Admiral without question hath not any
jurisdiction, for then he should hold plea of things done within the
body of the county, which are triable by verdict of twelve men, and
merely determinable by the common law, and not within the Court
of the Admiralty, according to the civil law. For that were to change
and alter the laws of the realm in those cases, and make those con-
tracts, pleas and querels triable by the common laws of the realm,
to be drawn ad aliud examen^ and to be sentenced by the Judge of
the Admiralty according to the civil laws. And how dangerous and
penal it is for them to deal in these cases, it appeareth by judicial
precedents of former ages. But see the answer to the first article.

§ 89. The Same.—" 1th Objection.— Thfit the agreement made in
Anno Domini, 1675, betweei the Judges of the Kings Bench and
the Court of the Admiralty, for the more quiet and certain execu-
tion of Admiral Jurisdiction, is not observed as it ought to be.

" The Answer. — The supposed agreement mentioned in this article,
hath not as yet been delivered unto us, but having heard the same
read over before his Majesty (out of a paper not subscribed with
the hand of any judge), we answer, that for so much thereof as dif-
fereth from these answei-s, it is against the laws and statutes of this
realm ; and therefore the Judges of the King's Bench never assented
thereunto, as is pretended, neither doth the phrase thereof agree
with the terms of the laws of the realm.

§ 90. The Same. — " %th Objection, — Many other grievances there
are, which, in discussing of these former, will easily appear wortliy
also of reformation.

** The Answer. — This article is so general, as no particular answer
can be made thereunto, only that it appeareth by that which hath
been said, that the Lord Admiml, his Officers and Ministers princi-
pally by colour of the said void non obstante and for want of learnetl
advice, have unjustly incroached upon the common laws of this
realm, whereof the marvail is the less, for that the Lord Admiral,
his Lieutenants, Officers and Minister have without all colour in-
croached and intruded upon a right and prerogative due to the
crown, in that they have seized and converted to their own uses,



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48 THE AMERICAN ADMIRALTY.

goods and chattels of infinite value, taken by pirates at sea, and
other goods and chattels which in no sort appertain unto his lordship
by his letters patent, wherein the said non obstante is contained, and
for the which he and his Officers remain accountable unto his Majesty.
And they, now wanting, in this blessed time of peace, causes apper-
taining to their natural jurisdiction, incroach upon the jurisdiction
of the common law, lest they should sit idle and reap no profit.
And if a greater number of prohibitions (as they affirm), have been
granted, since the great benefit of this happy peace, than before in
time of hostility, it moveth from their own incroachments upon the
jurisdiction of the common law. So as they do not only unjustly
incroach, but complain also of the Judges of the Realm for doing of
justice in these cases."

§ 91. Agreement of 1632. — The common law judges seem to
have met with no further check during the residue of the reign of
James I., and the first seven years of ihe reign of Charles I. In
that year, the Lord High Admiral and Sir Henry M artyn, the Judge
of the Admiralty, brought the matter again before the king and
lords of his council, before whom the matters between the Admii-alty
and the Judges were seveml times heaixi and debated at large ; and
at last these ensuing articles were di-awn up, read, agieed, and re-
solved at the council board, by the king himself, and all the lords
of his council, twenty-three in number, including Lord Keeper Cov-
entry and Lord Privy Seal Montague, eminent lawyers, and signed
by all the twelve judges of the common law courts, and by the
"grand lawyer, Mr. William Noj'e, Attorney-General, a great pro-
fessor and pillar of the common law," and by the Judge of the Ad-
miralty, entered in the Council Table Register of Causes, and the
original by his Majesty's command kept in the Council chest.^

''At Whitehall, ISth of February, 1632.

Present :

The King's Most Excellent Majesty.

Lord Keeper, Lord V. Wimbleton,

Lord Archb. of York, Lord Vis. Wentworth,

Lord Treasurer, Lord V. Faukland,

'Prynne, Ad. 100; Hall's Ad. Intro, xxlv.



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STRIFE BETWEEN COMMON LAW AND ADMIRALTY COURTS. 49

Lord Privy Seal, Lord Bishop of London,

Earl Marshall, Lord Cottington,

Lord Chamberlain, Lord Newburgh,

Earl of Dorset, Mr. Treasurer,

Earle of Carlisle, Mr. Comptroller,

Earl of Holland, Mr. Vice Chamberlain,

Earl of Darby, Mr. Secretary Coke,

Lord Chancellor of Scotland, Mr. Secretary Windebanke.

Earl Morton.

§ 92. The Same. — " This day his Majesty being present in Coun-
cil, the articles and propositions following for the accommodating
and settling of the differences concerning prohibitions, arising be-
tween his Majesty's Courts of Westminster, and his Court of Ad-
miralty, were fully debated, and resolved by the Board. And were
then likewise upon reading the same as well before the Judges of
his Highnesse said Courts at Westminster as before the Judge of
his said Court of Aj^mii-alty, and his Attorney-General, agreed unto
and subsigned by them all in his Majesty's presence, and the tran-
script thereof ordered to be entered into the register of Council
Causes and the original to remain in the Council chest.

§ 93. " 1. If suit shall be commenced in the Court of Admiralty
upon contracts made, or other things personally done beyond the
seas, or upon the sea, no prohibition is to be awarded.

§ 94. " 2. If suit before the Admiral for freight, or mariners'
wages, or for the breach of charter parties for voyages to be made
beyond the sea, though the charter parties happen to be made with-
in the realm, and although the money be payable within the realm,
so as the penalty be not demanded, a prohibition is not to be grant-
ed ; but if suits be for the penalty, or if question be made whether
the charter partie were made or not ; or whether the plaintiff did
release, or otherwise discharge the same within the realme, that is
to be tried in the King's Courts at Westminster, and not in the
King's Court of Admiralty, so that first it be denied upon oath, that
a charter pai*tie was made, or a denial upon oath tendered.

§ 95. " 3. If suit shall be in the Court of Admiralty for building,
amending, saving, or necessary victualling of a ship, against the
4



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60 THE AMERICAN ADMIRALTY.

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.

§ 96. " 4. Likewise the admiral may inquire of, and redresse all
annoyances and obstructions in all navigable rivers, beneatli the firat
bridges, that are any impediments to navigation, or passage to, and
from the sea, and also try personal contracts and injuries done
there, which concern navigation upon the sea, and no prohibition is
to be granted in such cases.

§ 97. " 4. If any be imprisoned, and upon habeas corpus^ if any
of these be the cause of imprisonment, and that be so certified, the
partie shall be remanded.

(Signed)

" Thomas Richardson, Tho. Trevor,
Ro. Heath, Geo. Vernon,

Humphry Davenport,* James Weston,
John Dbnham, Robert Barkley,

Rich. Hutton, Fran. Crawley,

William Jones, Henry Marten,

George Croke, William Noye,

Ex. T. Meautys."

§ 98. Mutilation of Croke's Reports. — I take these from Prynne,
who was keeper of the records and had the means of securing the
greatest accuracy, and who seems to have had them carefully ex-
amined and certified, and sets them out at length, in form, and with
the signatures. They may be found in one form or another, pub-
lished in many other places, but no two copies that I have seen,
agree in all the important particulai's, especially in the second and
fourth paragraphs ; ® and it is not a little remarkable that, having
been preserved by Sir George Croke (who himself signed them),
and published in two editions of his reports, without criticism or
comment, as evidence of the law, and referred to in the index, — word
Admiralty^ — in the third edition of those reports, after the death of
Sir George Croke, and of most, if not all, the judges and council-
lors who signed them, they should have been, without reason or
•Dunlap's Ad. Prac. 13; Zouch, Ass. 7; Godolph. 158.



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STRIFE BETWEEN COMMON LAW AND ADMIRALTY COURTS. 61



apology, omitted, and their place left blank on the page, while the
original reference to them was allowed to stand in the index, and
so remains in all subsequent editions of Croke, to this day. This
ver}' extraordinary mutilation of a book, then of high authority in
the courts, tends to show that the common law jurists, who did not
themselves actually perpetrate, were still willing to connive at, the
falsification of documents and books, to accomplish a triumph origi-
nally attempted from unworthy motives, and pursued with persever-
ing zeal, apparently, from pride of opinion, or motives as discreditable
as those in which the controversy had originated.^

§ 99. Ordinance of 1648. — These articles were not liable to the
objection that they were not signed, a»d for a number of years they
kept the peace between the courts.^^ The troubles, however, between
the king and the parliament and his people soon commenced, and re-
sulted in the overthrow of the royal authority and the establishment
of the Protectomte. Little more is now known of the contest, ex-
cept that it was probably renewed as soon as the check of royal au-
thority was withdrawn. The republican parliament was then called
upon b}' the friends of trade and commerce, to take sides with the
admimlty, and to secure to the people the benefits of its more en-
larged jurisdiction ; and the ordinance of 1648 was the consequence.^^
It was as follows :

Extract from ScobelFa Collection of the Acts and Ordinances of the
Repvhlican Government of England. Anno 1648, page 147.

''Chapter 112.
" The Jurisdiction of the Court of Admiralty settled,
§ 100. " The Lords and Commous assembled in Parliament, find-
ing many inconveniences daily to arise, in relation both to the trade

» Cro. Cor. Lond. 296, 1057, first edit
and 1671, second edit., and subsequent
editions; Prynne, 100.

^^ [In the Harleian Miscellany, vol. 8,
pp. 371 to 382, will be found a pamphlet
printed in 1690, entitled " Reasons for
settling Admiralty Jurisdiction, etc.,
etc.," attached to which are the articles
of February 18, 1632, and an order of
February 22, 1632, to the courts of
common law to discontinue all prohibi-
tions which come within the scope of



the articles, and a petition of merchants
for their re^stablishment. In this pe-
tition it is stated as the result of that
order that " the foreign contracts made
beyond the sea, and the matter of char-
ter parties for voyages, all ship-build-
ing, repairing, victualling of ships, mar-
iners* wages, and other matters of mere
Admiralty, did from thenceforth pro-
ceed in their due course in the said
Court of Admiralty."]
n Hall's Ad. Intro, xxiv.



101432



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52 THE AMERICAN ADMIRALTY.

of this Kingdom, and the Commerce with foreign parts, through the
uncertainty of jurisdiction in the trial of maritime causes, do ordain
and be it ordained by the authority of Parliament. 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, victualing and furnishing provisions for
the setting of such ships or vessels to sea ; and in all cases of bot-
tomry, 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, marinei-s' 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 Ij'ing of buoys, except
always that the said Court of Admiralty shall not hold pleas, or ad-
mit actions upon any bills of exchange, or accounts betwixt mer-
chant and merchant, or their factors.

§ 101. " And be it ordained. That, in all and every the matters
aforesaid, the said Admiralty Court shall and may proceed and take
recognizances in due form, and hear, examine, and finally end, de-
cree, sentence and determine the same according to the laws and
customs of the sea, and put the same decrees and sentences in execu-
tion, without any let, trouble or impeachment whatsoever, any law,
statute or usage to the contrary heretofore made in any wise not-
withstanding; saving always and reserving to all and eveiy person
and persons, that shall find or think themselves aggrieved by any sen-
tence definitive, or decree having the force of a definitive sentence, or
importing a damage not to be repaired by the definitive sentence given
or interposed in the Court of Admiralty, in all or any of the cases
aforesaid, their right of appeal in such form as hath heretofore been
used from such decrees or sentences in the said Court of Admiralty.

§ 102. " Provided always, and be it further ordained by the au-
thority aforesaid, that from henceforth there shall be three judges
always appointed of the said court, to be nominated from time to
time by both houses of Parliament, or such as they shall appoint ;
and that every of the judges of the said court for the time being,
that shall be present at the giving of any definite sentence in the
said Court, shall at the same time, or before such sentence given
openly in Court, deliver his reasons in law of such his sentence, or



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STRIFE BETWEEN COMMON LAW AND ADMIRALTY COURTS. 53

of his opinion conceniing the same ; and shall also openly in Court
give answers and solutions (as far as he may), to such laws, customs
or other matter as shall have been brought or alleged in Court, on
that part against whom such sentence or opinion shall be given or
declared respectively.

"Provided also, That this Ordinance shall continue for three
years, and no longer.

"Passed, the 12th April, 1648.

" Made perpetual by Ordinances of 2nd April, 1641. C. 3 — 1654.
C. 21. and 1645. C. 10.

" Expired at the Restoi-ation, anno 1660.^^

§ 103. Godolphin on the Jmisdietion. — Under this ordinance,
the admiralty was administered till the Restoration by Dr. Godol-
phin, who had been one of the Judges of the Admiralty under
Cromwell, and had wiitten his View of the Admiral Jurisdiction.
So g^eat was his reputation for integrity and knowledge, that at the
Restoration he was made King's Advocate, and he immediately pub-
lished his work, in which the actual jurisdiction of the court is set
forth as follows : — ^

§ 104. *' Within the cognizance of this jurisdiction are all affairs
that peculiarly concern the Lord High Admiral, or any of his offi-
cers <piatenu9 such; all matters immediately relating to the navies
of the kingdome, the vessels of trade, and the ownei-s thereof, as
such ; all affairs relating to mariners, whether ship-officers or com-
mon mariners, their rights and privileges respectively ; their office
and duty ; their wages ; their offences, whether by wilfulness, casu-
alty, ignorance, negligence, or insufficiency, with their punishments.
Also all affairs of commanders at Sea, and their under-officers, with
their respective duties, privileges, immunities, offences, and punish-
ments.

§ 105. " In like manner all matters that concern owners and
proprietors of ships, as such ; and all Masters, Pilots, Steersmen,
Boatswains, and other Ship-Officera ; all Ship-wrights, Fishermen,
Ferry-men and the like ; also all causes of seizures, and Captures



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 7 of 80)