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persons who should attempt to set them aside. A Statute for this purpose was passed (2 Henry IV., c. xi.), entitled, “A remedy for him who is wrongfully pursued in the Admiralty,” which after reciting the enactments of the Statute of 13 Richard II., provided
“ That the said Statute be firmly holden, and kept, and put in due execution, and, moreover, the same our Lord the King, by the advice and assent of the Lords Spiritual and Temporal, and at the prayer of the said Commons hath ordained and established, that as touching a pain to be set upon the Admiral or his Lieutenant, that the Statute and the Common Law be holden against them, and that he that feeleth himself grieved against the form of the said Statute shall have his action upon the case against him that doth so pursue in the Admiral's Court, and recover his double damages against the pursuant, and the same pursuant shall incur the pain of ten pounds to the King for the pursuit so made if he be attainted.”
This Statute continued to be in force down to 1840, and it is the only one of the three famous Statutes concerning the Admiral's jurisdiction, which has been repealed in express terms by 3 & 4 Vict., c. 65. The other two Statutes remain on the Roll. We speak of these three Statutes as famous Statutes,” for they deserve that name, seeing that they gave rise to a controversy between the Common Law Courts at Westminster and the High Court of Admiralty of England, as famous in its way in the annals of English jurisprudence, as the controversy between Grotius and Selden concerning the Liberty of the Sea is renowned in the annals of the Law of Nations. We do not propose, however, to invite the reader to peruse the list of grievances submitted to Queen Elizabeth by Dr. Dunne, the Judge of the High Court of Admiralty, in 1575, nor to follow the arguments presented by the Common Law Judges to King James I. in answer to the complaints of the Civilians in 1610, nor to examine the Articles of Peace, as we may venture to call them, agreed upon between the Judge of the Admiralty and the Judges of Westminster Hall, and settled by the Council of King
Charles I., in 1632. They are to be found in Coke's "Fourth Institute," and in Prynne's "Animadversions on Sir Edward Coke's Work."
It may be sufficient to remark that the Judges of Westminster Hall in their argument, as submitted to King James I., relied upon the Statutes of 13 Richard II. and 15 Richard II. as declaratory of the jurisdiction of the Court of the Admiral, and as forbidding the Admiral to meddle with any question arising within the body of a county, except as regards the death of a man or a mayhem done in great ships in the main streams of great rivers below the bridges nearest the sea; and the reasons of the Judges are thus stated in their answer to the eighth objection of the Civilians :
“But for all contracts and pleas and querels made or done upon a river, haven, or creek, within any county of this realm, the Admiral, without question, has no 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 these cases, and make those contracts, pleas, and querels triable by the Common Law of the realm, to be drawn ad aliud examen, and to be sentenced by the Judge of the Admiralty according to the Civil Law.”
The arguments of the Judges on this occasion were supported by references to other Acts of Parliament, such as 2 Henry IV., C. II, and 27 Eliz., C. II; by a long series of judicial precedents, and by the authority of text books; and the result has been described, in the “Fourth Institute" of Lord Coke, in his own sententious language, “Magna est veritas et prevaluit.” In other words, Lord Chief Justice Coke carried the day against the Civilians.
The result has been that, from the time of Violet v. Blague, (Croke James, p. 514), down to Velthasen v. Ormsley (3 Term Reports, p. 315), the Court of King's Bench has unhesitatingly prohibited the Admiralty Court from exercising its
jurisdiction, secundum legem maritimam, in any case of collision, happening between two sea-going vessels, where the collision has happened within the body of an English county, and ever since the last of the two cases above mentioned, in which judgment was given by Lord Kenyon, Chief Justice, the Admiralty Court has carefully abstained from exercising its jurisdiction either in rem or in personam in any such case. It was a strange condition of law for British shipowners to rest satisfied with, and it was still more strange that the Judges in Westminster Hall did not revolt sooner against being made the statutory instruments of impeding the redress of wrong, which in some cases was of a most grievous character. At last another spirit came over the British Parliament, and it was invited successfully by the Queen's Government to modify the restrictions imposed upon the Admiral's jurisdiction in certain classes of cases, and the result has been the enactment of the 3 & 4 Vict., ch. 65, which has effected by implication a partial repeal of both the Statutes of Richard II., and in terms a total repeal of 2 Henry IV., ch. II, so that no penalties would now be incurred by a total disregard of the earlier Statutes. The earlier Statutes, however, remain on record in the Statute Book, and have been printed, as already mentioned, " by authority," in the revised edition of the Statutes (1870). If the view, which the above historical survey suggests, as to the main object of modern Parliamentary legislation on the subject of the Admiral's jurisdiction, be the correct view, the Statute of the Queen (3 & 4 Vict., c. 65) is to be regarded as an enabling Statute, and the explanation of its affirmative language not being in general terms, but condescending to particulars, is to be found in the fact that the Admiral's jurisdiction, secundum legem maritimam, is of larger scope than the purview of the Statute, and that the Statute leaves certain ancient restrictions on the Admiral's jurisdiction still unrepealed. It was evidently not the intention of Parliament, in amending the law as it stood before 1840, to
authorize the High Court of Admiralty to exercise its traditional jurisdiction to the full extent to which it is warranted by the law of the sea, and to the degree to which such jurisdiction is exercised by the Admiralty Courts of the United States of America.* A necessity has not been recognised at present in England for so large a measure of change, as would enable the Admiralty Court to hold cognisance of questions of jettison for instance, and to regulate general average by common principles of Maritime Law, instead of leaving it as at present to be settled in each case, according to the custom between mariners and merchants, which happens to be in force in the particular port of the ship's arrival.
We have spoken of the Statute of the Queen as an enabling Statute, and that such a Statute ought to receive a benignant interpretation there can be no doubt. But the Statute is entirely silent as to the law which the Court is to apply in each cause of action, and in the total silence of 3 & 4 Vict., c. 65, on this head, it may be presumed that the Admiralty Court is to exercise its jurisdiction in all cases where the cause of action arises within the body of a county, according to its own principles of law, precisely as it would apply them to cases happening on the high seas. The Bold Buccleugh is a remarkable instance in point. In that case the collision happened in the River Humber, which is within the body of an English county, and the collision was held, after an elaborate argument, to have created a maritime lien on The Bold Buccleugh, a Scotch vessel, which, according to the law of the Admiralty Court could not be divested by the subsequent sale of the ship to a bona fide purchaser for value without notice, and was in fact enforceable against the ship after such sale by a pro
* Mr. Justice Story's judgment in the case of De Lovio v. Bort, 2 Gallison's Reports, p. 398. See Black Book of the Admiralty. Rolls Edition, Vol. III.,
+ Harmer v, Bell, 7 Moore, Privy Council Reports, p. 267.
ceeding in rem. Sir John Jervis, Chief Justice of the Common Pleas, who delivered the judgment of the Judicial Committee of the Privy Council, took especial pains in this case to explain the nature of a maritime lien, which he defined to be a kind of privilege or claim against the ship itself, to be carried into effect by a legal process deduced from the Civil Law. The same remark will apply to causes of salvage, inasmuch as salvage services create a maritime lien on the ship to which they are rendered, if at the time when they were so rendered the ship was within the flux and reflux of the tide; but the maritime lien in the case of salvage differs so far from the maritime lien in the case of collision, that whilst the former is considered to be founded on an implied contract, the measure of which is in the reasonable discretion of the Court, the latter is founded on an evident wrong, the measure of which is the reparation of the damage inflicted by the ship which is in fault, and for which it is liable, according to the Civil Law, to make compensation to the full amount of its value. Under the enabling powers of the 3 & 4 Vict., c. 65, the Admiralty Court, immediately after its enactment, exercised its jurisdiction in all causes of collision within the body of an English county equally as on the high seas, according to its traditional rules; but in more recent times it has had direct restraints imposed upon it by the Merchant Shipping Acts, which apply equally to both classes of collisions. These restraints affect the valuation of ships for the purpose of assessing damages in cases of collision, and the Statute Law has limited the liability of shipowners in all such cases, whether the vessels are British or foreign, to an aggregate amount not exceeding eight pounds sterling for each ton of the ship's tonnage. This statutory limitation of the liability of shipowners in all suits of collision instituted in the English Admiralty Court has been pronounced, by the Court of Appeal, to be part of the Lex Fori, and it deserves note, that as the object of Parliament, on this occasion, was to