« PreviousContinue »
It was reserved, however, for Dr. Lushington to live to see the fetters of his Court struck off in such matters, by what may be appropriately designated “ the Admiralty Court Emancipation Act.” We allude to the 3 & 4 Vict., ch. 65, which the learned judge of the Admiralty Court has cited as one of the Statutes giving him jurisdiction in the case of Le Parlement Belge.
This Statute is entitled, “An Act to improve the practice and extend the jurisdiction of the High Court of Admiralty of England,” and after reciting in its preamble, that the jurisdiction of the High Court of Admiralty of England may be advantageously extended and the practice thereof improved, it proceeds to enact, in Section VI., that
“The High Court of Admiralty shall have jurisdiction to
decide all claims and demands whatsoever in the nature of salvage for services rendered to, or damages received by, any
ship or sea-going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce payment thereof, whether such vessel may have been within the body of a county or upon the high seas at the time when the services were rendered, or damage received, or necessaries supplied, in respect of which any such claim is made."
To render this Act of Parliament perfectly intelligible to a foreign jurist it becomes necessary to review briefly the early history of the High Court of Admiralty of England, which is a Court altogether alien in its origin to the Common Law of England, and of which the procedure is regulated in accordance with a jurisprudence altogether foreign to the law of the land. The jurisdiction of the Admiral’s Court in its international character is a jurisdiction of the jns gentimn, which is vested in the sovereign power of every independent State, whatever be the character of its government, and in whatever department of the State the sovereignty may reside. In the case of England, which is a monarchical State, the Admiralty jurisdiction is a Prerogative of the Crown, the exercise of which is of custom committed by Letters Patent of the Crown to a Lord High Admiral,* who in his turn delegates the exercise of his judicial functions to a Lieutenant. It was in the capacity of Lieutenant of the Lord High Admiral that Dr. Lushington administered the Law Maritime against foreign vessels in matters of contract and tort, happening on the high seas or in the tidal waters of foreign countries, and we believe that we do not err in asserting that the present _]udge of the High Court of Admiralty entered upon the duties of his oflice in the like character of Lieutenant of the Lord High Admiral. It is immaterial for the purposes of our argument, that the office of Lord High Admiral is put into commission at the present time. It has also happened that since the succession of Sir Robert Phillimore to the chair of Dr. Lushington, the High Court of Admiralty has ceased to be an isolated Court, and has been constituted by Statute a member of a system of Courts termed the High Court of justice ; but this alteration in its municipal relation to the other Courts of justice, forming that statutory system, has not worked any changes in its jurisdiction over foreign vessels further than as regards its rules of proceduret and matters not organic. Its international right to enforce its jurisdiction against foreign vessels in matters of maritime contract and of maritime tort rests on a time-honoured practice, which is a tradition either of the Universal Roman Empire before its disruption, or of that Unity of Christendom in matters of Maritime Law, which was brought about by the common necessities of the early Crusaders. Be this as it may, England was amongst the foremost of the States of Europe, which took part in the Crusades, to recognise the advantage of an international concert to maintain the peace and security of the sea, and to punish offenders who should violate the customs of its navigation.
' So necessary, according to the Law of Nations, was the ofiice of Admiral considered to be in the XVIth century in order to give legality to an act of vi: major on the High Seas, that when the Low Countries revolted against the Spanish Monarchy, and the Prince of Orange granted letters of marque and reprisal to persons disposed to fit out vessels to cruise against Spain, the Spaniards refused to recognise the legality of such letters of marque on the ground that the Prince of Orange had not been nominated Admiral of the Low Provinces. Hence the oflicers and crews of these cruisers were termed by the Spaniards “Sea-beggars" (gueux de mer), and many of them were executed by Spain and other powers on that pretext as pirates
1' It has been so laid down in Chapman v. The Royal Netherlands Steam Navigation Company, before the Supreme Court of judicature, March 22,
We have discussed in a previous number of this Review the probable origin of the term Admiral.* The existence of the ofiice of Admiral of England by name may be traced as far back as the reign of Edward I., when we find an entry in the Patent Rolls of 23 Edw. I. :— “ Willielmus Leybourne constitutus capitaneus marinariorum, &c. Idem constitutus Admirallus Angliae.” The Records are more complete when we arrive at the reign of Edward III., when we have the famous Roll of I2 Edw. III., “De Superioritate Maris.” Further light is thrown upon the subject by the subsequent Close Roll of 35 Edw. III., membrane 38, which contains an order of the King in Council, restraining the King’s Commissioners from proceeding in a case of maritime trespass, “secundum legem et consuetudinem regni nostri,” as they had been previously directed to do, because, as the Roll goes on to say, “upon a recent reference to us and our Council, it appears to be consonant to the said law and custom, that felonies, trespasses, and injuries committed upon the sea should not be referred to and determined by our justiciaries according to the Common Law, but before our Admiral, according to the Law Maritime.” Lord Hale refers to this Order in Council as fixing the period, since which the Courts of Common Law in England have ceased to proceed criminally in cases of trespasses committed on the high seas. The issuing of this Order by the King in Council, restraining the action of the Common Law ]udges, appears to have encouraged the Deputies of the Lord High Admiral to exercise their delegated jurisdiction in many English ports and havens, over which the Crown had previously granted, by charter, maritime jurisdiction of a limited character either to the Lords of the adjacent coasts or to the corporations of the neighbouring boroughs, and great complaints were raised by the Commons of England against the encroachments of the Admiral on their franchises. These complaints at last led to the passing of the Statute I3 Richard II. (Stat. i., ch. 5), which is of this tenor :
1' Law Magazine and Review, No. CCXXIV., for May, 1877.
“ Item : Forasmuch as a great and common clamour and complaint has been oftentimes made before this time and yet is, for that the Admirals and their deputies hold their sessions within divers places of this realm, as well within franchise as without, accroaching to themselves greater authority than belongeth to their ofiice in prejudice of our Lord the King and the Common Law of the Realm, and in diminishing of divers franchises, and in destruction and impoverishing of the common people: It is accorded and assented that the Admirals and their deputies shall not meddle from henceforth with anything done within the realm, but only of a thing done upon the sea, as it hath been
used in the time of the noble prince, King Edward, grandfather of our Lord the King that now is.”
On the other hand, the absolute restraint, which was imposed by this Statute on the Admiral’s office, in forbidding him to exercise his jurisdiction in any matter done within the realm, was soon found to be highly inexpedient in criminal matters, and it was determined to remedy the mischief resulting from over-stringent legislation by the subsequent enactment of I5 Richard II., ch. 3.
This Statute was more explicit than the previous Statute in the restraints, which it imposed on the civil jurisdiction of the Admiral; on the other hand, it excepted from all restraint his jurisdiction over crimes committed within the tidal waters of British rivers. Its provisions are as follows :—
“ Item: At the great and grievous complaint of all the Commons, made to our Lord the King in his present Parliament, for that the Admirals and their deputies do encroach to them divers jurisdictions, franchises, and many other profits pertaining to our Lord the King, and to other lords, cities, and boroughs, other than they were wont or ought to have of right, to the great oppression and impoverishment of all the Commons of the land, and hindrance and loss of the King's profits, and of many other lords, cities, and boroughs, throughout the realm : 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, as well by land as by water, and also of wreck of the sea, the Admiral‘s Court shall have no manner of cognisance, 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, discussed, and remedied by the laws of the land, and not before nor by the Admiral nor his lieutenant in any way. Nevertheless of the death of a man and of a mahem done in great ships, being 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.”
\/Ve have followed the English translation of the AngloNorman text of both the above Statutes, which has been adopted in the Revised edition of the Statutes published “ by authority,” in I870. It is remarkable, that both these Statutes have been allowed to remain on the Roll of the Statutes of the Realm, notwithstanding the recent enactment of the Statutes of the Queen, cited by the learned judge. The significance of this fact has not been overlooked by us, and we propose to discuss it presently in its general bearing on the case of Le Parlement Belge.
It was more easy in the reign of Richard II. to legislate than to enforce the laws, but upon the accession of Henry IV. to the throne, Parliament took more effective measures to give effect to the statutory restraints of the Admiral’s jurisdiction, by enabling the Common Law judges to enforce those restraints by penalties against all