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its general platform, as any work of man in an advanced stage of civilization and learning can be.*
The Jurisdiction of the Admiralty, on the other hand, rests upon juridical principles totally distinct from those of territorial sovereignty. It was originally a personal jurisdiction. The title of Admiral is probably of Saracenic origin, and was the distinctive appellation of naval commanders of higher "grade than the captains of single ships, and who were in fact commanders of squadrons or of fleets of ships.t When the English fleet was assembled at Oleron on occasion of the fourth Crusade against the Saracens, the necessity became evident of establishing laws for the maintenance of discipline on board the vessels, the customs of the land being inapplicable to the incidents of maritime life. Ordinances were accordingly issued by King Richard I. from the Castle of Chinon, for the government of the mariners, and the Captains and Constables of the fleet were invested with special authority by a Royal Writ to enforce those ordinances, as Justiciaries of the King's Fleet. We find no mention, however, in England of any Chief Justiciary of the King's fleet under the title of Admiral before the 22nd year of the reign of Edward I., when Willielmus Leybourne, who had been already appointed to the ancient office of “ Capitaneus Marinariorum " was further appointed “ Admirallus Angliæ.” This appointment seems to have carried with it a jurisdiction unknown to the Common Law of England, for it was a jurisdiction conducted according to the course of
* The Treatise of Grotius “ De Jure Prædw," which was completed by the author at the commencement of 1605, is a remarkable work for a yonth of twenty-two years to have composed. The “Mare Liberum,” which forms the twelfth chapter of this work, was published apart from the body of the work in the month of November, 1608. The Commentarius “ De Jure Prædæ" became the scaffold of the greater work “De Jure Belli et Pacis,” which Grotius undertook during his exile at the suggestion of Peirescius and upon the advice of Lord Bacon, and which was published in Paris in 1625.
+ In the Customs of the Sea, collected in the consolat de la Mar, ch. clxxxv., the admiral of the armed fleet is mentioned in contrast with the captaius of single ships. Black Book of the Admiralty, vol. iii. p. 351.
the Civil Law. We find legal mention soon after this period of the Admiral in a case, which came, as it seems, before the Justices of Oyer and Terminer, not long after their office had been instituted by the Statute of Westminster the Second (13 Edw. I, ch. I).
The fullest report of this case, which is the most ancient of its kind on record, has been preserved in a MS., which was in the possession of Selden, at the time when he wrote his annotations on Lord Chancellor Fortescue's Treatise De Laudibus Legum Angliæ (ch. xxxii. p. 31). The case itself arose in 25 Edw. I., and it was in the nature of a civil remedy, but the dicta of the judges seem at first sight to countenance the notion, that the Curia Regis exercised at that time criminal jurisdiction over all vessels on the sea adjoining the coast of England, whereas those dicta admit of another interpretation, namely, that they held the criminal law of England to be applicable to British subjects on board of British vessels, notwithstanding such vessels were on the High Seas and beyond the Realm. The case may be thus stated. An action of Replevin was brought by Robert de Bæuf against William Crake, of Holtham, in the county of Norfolk, for seizing his ship off the coast of Scarborough and taking her into Holtham, when the counsel for the defendant objected to the jurisdiction of the Court on two grounds, first, that the seizure of the vessel took place on the sea, where there was no country (pais), from which the Sheriff could summon a jury; and, secondly, that the King had assigned to the Admiral to hear and determine all plaints touching acts done in the sea. The judges overruled both these objections. Bery, Judge, in reply to the first objection said, “We have general power throughout all England, but we know nothing of the power of the Admirals,* of which you speak, nor are we willing to assign to them any of our
The first mention of the Admiral in our printed Law Books is in Itin. Cancell. tit. Corone, 399.
power, except on the King's command, of which you have given no evidence." Upon the defendant's counsel then urging that the act was done at a place where there was no neighbourhood (visne), whence a jury could be summoned, Howard, Judge, replied, “ there is neighbourhood enough, that if a man kills another there, he shall be taken and brought to land, and there hanged equally as for an act done on the land ;” and Metingham, Judge, added, “We say we have as much power to take cognizance of an act done upon sea as upon land.” Such language on the part of the King's Judges might seem to imply, that they held the high seas adjoining the Coast of England to be subject to the Common Law of England in criminal matters, equally as the coast itself; but, as the parties to the suit were both British subjects, however conclusive the case may be, that the King's Judges held that a murder committed on board of a British ship on the high seas was cognizable at Common Law before the Admiral's office was instituted, it raises no presumption that they would have claimed jurisdiction in respect of a murder committed on board of a foreign ship in the same part of the high seas. We may refer with great probability to this period (25 Edw. I.) the commencement of the contention between the Courts of the King in Westminster Hall and the Court of the Admiral, the Admiral having under his Letters Patent authority to do all things pertaining of Right and according to the Law Maritime to the office of Admiral, a perilous vagueness of statement, which encouraged the Admiral and his deputies to encroach in civil matters on the franchises of the maritime boroughs and on other local jurisdictions. In consequence of great clamour and complaints arising from these encroachments, it was determined to remedy them by a Statute passed in the 13th Richard II. (St. 1, ch. 5,) under which it was declared that the Admiralty Court was “henceforth not to meddle of anything done within the realm, but only of a thing done upon the sea."
It is necessary here to pause for a moment, inasmuch as this Statute was enacted not so much with a view to restrain the exercise of the criminal jurisdiction of the Admiral, as to check the rapacity of the Admiral's deputies in their conduct of the civil jurisdiction, which formed, in fact, the more lucrative branch of the Admiral's Office.
There had been a law of the Sea in civil matters long before the office of Admiral is mentioned in any Chronicle or Law Book; a law of the Sea, which was founded on the usage of merchants and mariners, a consuetudo maris, a jus non scriptum in matters of the Sea, which had been administered by other courts before the institution of the Admiral's Office. This common law of the Sea appears at the earliest times, when we have glimpses of it, to have been administered in all civilised countries by tribunals of voluntary jurisdiction, whose decisions were rather arbitrations, and they are occasionally so called, than judgments; but, in course of time, it came to be administered by tribunals armed with coercive jurisdiction under charters, or franchises granted by the Sovereign power. This customary law of the Sea appears to have been administered, in many parts of England, shortly before the institution of the Admiral's office, by the Baillifs of the maritime boroughs, who held their Courts from tide to tide for the benefit of passing mariners. An early record of such a Court is preserved in the Domesday of Ipswich,* and we have traces of the existence of such Courts in other maritime boroughs, the Domesdays of which have unfortunately perished.
After the office of Mayor had in several maritime boroughs replaced that of the Baillifs, the Mayor's Court in such boroughs appears to have administered the Common Law of the Sea to passing mariners, and there is good reason for believing that the early Judgments of the Sea, which are contained in the Rolls of Oleron, were Judgments of the Court of the Mayor of the Commune of Oleron * delivered to passing mariners. Further, after the office of Admiral had been constituted in England, the Admiral and his deputies appear to have been empowered by Letters Patent of the Crown to administer this common maritime law, and so the Admiralty Court came to exercise an international jurisdiction in civil matters, whilst its criminal jurisdiction, resting originally on the High Prerogative of the Crown, remained strictly national.t No case is to be found in the Law Books to show, that the Admiralty of England ever exercised criminal jurisdiction in respect of offences committed on the High Seas in other than British ships, and any doubt, which could possibly arise as to the absence of that jurisdiction has been conclusively disposed of by the decision of “the Twelve Judges ” in the case of R. v. Serva (1 Denison's Crown Cases, p. 101), and in the case of R. v. Lewis (I Dearsley and Bell, Crown Cases, p. 182.) The former of these cases enlisted the feelings of Englishmen against the accused parties even more warmly than the recent case of R. v. Keyn. The facts were these :-A Brazilian vessel, named the Felicidade, fitted out for the Slave trade, had been captured by H.M. ship of war Wasp on the High Seas, off the coast of Africa, in pursuance of treaty-engagements between Brazil and Great Britain for the suppression of the Slave trade. A prize crew having been put on board the Felicidade, she was ordered to proceed in chase of another Brazilian vessel, The Echo, which she overtook and captured,
* It is provided in the Domesday of Ipswich, drawn up in the second year of King John, that “ les pletes attachez à la ley Marine, c'est assaver, pur mariners estraunges passauntz, e pur ceux qe ne attendent forkes leur mareye, seyent pledez de mareye en mareye."--Black Book of the Almiralty, vol. ii., P. 22.
* The ancient Customs of the Commune of Oleron have been published for the first time from a MS. in the British Museum, in the Appendix to the Black Book of the Admiralty, vol. ii. p. 255. They were probably compiled in the reign of Edward I., and they contain various maritime judgments between passing mariners delivered in the Mayor's Court at Oleron.
† Piracy is not an exception to this rule, as the pirate has no national character, and is out of the pale of all Law.