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ART. VIII.-HIGH COURT OF ADMIRALTY
1. The New Practice of the High Court of Admiralty in England;
with the Rules of 1859, Collection of Forms, and Bills of Costs. .By HENRY CHARLES COOTE, Proctor of the Court. London:
Butterworths, 1860. 2. Two Lectures on the Jurisdiction and Practice of the High
Court of Admiralty of England, delivered before the Incorporated Law Society. By John MORRIS, Esq., a Member of the Society. London: Stevens & Norton, 1860.
HE fortunes of the Court of Admiralty have been curious
and strange. For many centuries that court struggled for mere life against the beating waves of Common Law and Chancery. In our own times, however, legal favour has set in towards it; the tide has turned, and the adverse wind has hushed. Even bos locutus in Etrurià—popular lecturers resound its praises, and advocate an extension of its powers and jurisdiction.
In this, though we think there is justice, we must at the same time declare that the honours which the Admiralty now receives have only really been deserved in late years; for the court appears to have been insignificant in Lord Stowell's time, to have been worse under Sir Christopher Robinson, and no better under Sir John Nichol. Upon this subject we will use the words of Mr. Coote, in the preface to his “ New Practice of the Court of Admiralty :”
“ When some half a century ago the court came to be presided over by Lord Stowell, such was the paucity of its legal business, that it could be said to afford that great legal luminary little else than an occasional morning's occupation. The tenuity of interest which attached also to that business was so undeniable, that the circumstances resolved itself to the mind of his lordship
as a weighty objection to the publication of the reports of the proceedings of the court, when publication was first proposed by the members of his bar. In his lordship's own words, he feared lest the reports should expose the nakedness of the land.' But small as was the amount of business under Lord Stowell, it became even less under his immediate successors, and the court seemed fasť sinking into a state of only something more than mere vacuity.
“At this critical juncture Dr. Lushington accepted the important office of Judge in Admiralty. Under his energetic presidency the long dormant court instantly underwent a change so complete in itself, and so extensive in its results, that it can scarcely be described otherwise than as a fresh creation of law. The confidence of the public awoke as from a dream, and a corresponding amount of business at once poured into this (comparatively speaking) new tribunal. Dr. Lushington was thus enabled in a few years to frame and establish a system of jurisprudence for his court, not less great in idea, yet at the same time more varied in form, and more grasping in comprehension, than that which his gifted predecessor, Lord Stowell, had in other times shaped out for the Court of Prize.
“ To form the jurisprudence of a court exercising so important a jurisdiction as that of the Admiralty, would have seemed enough even for the advanced intellect and distinguished learning of Dr. Lushington ; but something more, though less in its degree, was required of him. The defective character of the procedure of the court urgently called for reform. On the appointment to the Registrarship in Admiralty of H. C. Rothery, Esq., whose acknowledged ability indicated him as a fit associate in such an undertaking, that reform was instantly initiated, and was wholesomely and unsparingly carried out. The reform which was initiated in 1855 has now finally been completed by the Rules of 1859.”
For its present eminence it is therefore clear that the court is entirely indebted to Dr. Lushington. The Rules of 1855, which were a prelibation of future and further reforms, appear
to have simplified the procedure, and to have materially abridged the proceedings in suits in the court. But the court being then closed to the general world, as having a select bar and practitioners of its own, there was then little or no occasion to elevate the forms of proceeding up to the level of the capacity of the general attorney. But on the passing of the act of last session, there instantly arose a necessity that something of this kind should be done—that rules should be made constituting a practice for the court that should be really intelligent; for the admission of the whole legal profession within the pale of the court had altered the very conditions of its existence. What was cramped in the old procedure, but had become easy of application to gentlemen who had passed their lives in acquiring this knowledge, threatened to become as noxious as it was imperfect, if it were made compulsory upon those who had not given to it the steady and enduring affection of the practitioner of the older school. New rules, therefore, were imperatively required, and out of this necessity have arisen those which are now before us.
The jurisdiction of the Admiralty is both real and personal; the former (which must be understood in a peculiar sense) is the most resorted to, and is the specialty, and perhaps the greatest forensic excellence of the court, apart from its refined and enlightened principles of law; the other is much like the personal jurisdiction of other courts, except that the Admiralty cannot issue execution against a person's goods. Of the two forms of jurisdiction the new rules grapple most with the cause or action in rem. Our readers know that the hypethecal lien upon
which this action is founded is no lien at all in the sense of its common law namesake ; and whilst it is something different, it is also something more—it is the implied or tacit hypothecation of a res arising out of some previous act either of the plaintiff or of the defendant. Salvors save a vessel and its cargo from the jaws of breakers or the luring caresses of a lee shore; and the benefit which they have conferred upon the owners becomes, without spoken words or written characters, a charge and hypo
thecation upon the whole and every part of the res ipse ; for who have a better right to pay themselves ex re than its own preservers or benefactors ? This is one of the modes in which a plaintiff may create in his own favour a lien ; on the other hand, a defendant will find that the delictum of his own servants in running down another vessel, has stamped his own vessel with a preferential charge to the extent of the wrong done. This hypothecal lien can only be enforced by the court, which, in the interest of the plaintiff, arrests the res, sells it, and pays the creditor his debt out of its purchase-money, unless the defendant renders such a course unnecessary, by giving bail to the action.
Upon this interesting portion of the jurisdiction of the Admiralty there are several new rules, which appear to be a real improvement of practice, and evince consummate penetration and judgment. Here the reform has been trenchant, for on these points there hung many remnants of antiquity, savouring of the days when Titius sued and Seius pleaded ; for on the matters to which we now more particularly allude, viz., the procedure by default, the court, in former days, showed in its forms a timidity which was unworthy of its high position, at the same time that it was prejudicial to the interests of the plaintiff. For when the court sold a res, it craved the forbearance of the public, by asserting that the res was perishable—that it deteriorated in matter or in value by being kept; in fact, the forms of the court stated every thing but the truth, for they never openly avowed that the court sold the res because the plaintiff had a right to require the sale at its hands. Before selling, the court gave notice to the whole world to show cause against the sale; and when the world (or at least that section of it which frequents the Royal Exchange) took no notice of their summons, the court reluctantly and timidly sold the res. But after this bold act it shrunk back in alarm, and declined to pay the plaintiff until he had indemnified the court and its officers against latent claims and demands. All these appliances and preliminaries have been ruthlessly swept away by the new rules; and
the court now stands erect, in the full possession of all the powers and means which should appertain to so high a judicature.
Wherever the procedure could be wholesomely assimilated to that of common law, the assimilation has been made by these rules; that other portion which did not admit of it, has been improved upon principles appropriate to itself. By this crowning reform of the Admiralty, the practices of the superior courts have been brought so near to each other, that we may apply to them the charming words of the poet
“ Facies non omnibus una, Nec diversa tamen, qualem decet esse sororum." Of the rules themselves we have only to express qualified admiration. They are exact, complete, and, in the words of Lord Bacon, "a chain confederate and linked together.”
A new book of practice of the Court of Admiralty was required, and Mr. Coote has supplied the demand. This gentleman is already well known to the legal world by his “ Practice of the New Court of Probate,” and his “Practice of the Ecclesiastical Courts." His well-practised hand has furnished the professional man with what he is daily wanting. In the ample appendix will be found, amongst other necessary matter, forms of great utility in pleading, preparing affidavits, and bills of costs.
The serjeants, barristers, attorneys, and solicitors, to whom 22 & 23 Vict., c. 6, has opened the gates of the Admiralty Court, and who desire to use the privilege, will do well to possess themselves of Mr. Coote's book.
It has been indeed very difficult, both for the student and the practitioner, to become acquainted with the Court of Admiralty in its present revived shape. Pritchard's “ Admiralty Digest,” the most recent compendium of authorities, has not been reprinted since its appearance in 1847, though a great number of important cases have since been decided. The treatises are much older; the second edition of Dr. Browne's, the last and best professed English treatise on the subject, dating even from 1802. And yet, during the present reign, the Admiralty practice