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be gathered together, and they shall judge your higher judges according to the voice of the people.” The people had a right of petition. Death was inflicted only for murder and treason. A debtor was arrested and taken before a judge. The law of contract and succession was quite undeveloped. Three witnesses were generally required. Church discipline was by admonition, followed by excommunication or its equivalent, "the same shall not be numbered among my people.” † The theory of law is somewhat interesting, as there is something of a Hegelian ring about it. “It is not common that the voice of the people desireth anything contrary to that which is right; but it is common for the lesser part of the people to desire that which is not right; therefore this shall ye observe and make it your law to do your business by the voice of the people.” | Toleration was inculcated, if not practised, by the successors of the Nephites. “There was a strict law among the people of the church that there should not any man belonging to the church arise and persecute those that did not belong to the church, and that there should be no persecution among themselves." $ The judges were bidden in justice to remember mercy.|| Sorcery, witchcraft, and magic were among the crimes rife in the land. King Lamoni was the author of a law that a herdsman who allowed any of the king's cattle to be stolen was to be punished with death. The same king issued a proclamation very like James II.'s Declaration of Indulgence and with much the same consequences to its author,

Two episodes of some interest to lawyers may be mentioned. In the days of Alma the lawyers stirred up all manner of riotings and all manner of disturbance and wickedness “for the sole purpose to get gain, because they received their wages according to their employ." Their leader was one * Mosiah, chap. xiii. p. 3.

Ibid., chap. xi. p. 13.
1 Ibid., chap. xiii. p. 4.

§ Alma, chap. i. p. 5.
| Ibid., chap. xix. p. 12; compare Bacon's Essays : Of Judicaturr.

Mormon, chap. i. p. 2.


Zeezrom, “a man who was expert in the devices of the devil.” He began to question Amulek the prophet with crafty questions ; but the prophet was too much for the lawyer, and Zeezrom began to tremble. Then Alma turned on the unfortunate Zeezrom and he“ began to tremble more exceedingly.” The lawyer party, however, was too strong; a popular outbreak occurred, and Alma and Amulek were seized and imprisoned. Then comes an evident imitation of the deliverance of Paul and Silas from the gaol at Philippi, the prison was miraculously opened and Alma and Amulek were set free. Finally Zeezrom was miraculously healed by Alma of a fever brought on by remorse for his wickedness. He was baptized and became a preacher of the truth.* At a later period occurred the trial of Nephi for the murder of Seezoram, the Chief Judge. The real murderer was the judge's brother, who is forced to confess by a series of confessions based on threats such as would undoubtedly be rejected by the judge of an English criminal court. Finally comes the statement, “because of this fear and this paleness which has come upon your face, behold, we know that thou art guilty.” †

The most interesting legal question is perhaps that of polygamy or “plurality.” The Book of Mormon is against it. The main texts are these. “There shall not any man have save it be one wife, and concubines he shall have none, for I the Lord God delighteth in the chastity of women. . For if I will, saith the Lord of Hosts, raise up seed unto me, I will command my people, otherwise they shall hearken unto these things." † “They have not forgotten the commandment of the Lord, which was given unto our fathers, that they should not have save it were one wife."Ş The Book of Doctrine and Covenants says, “We believe that one man should have one wife and one woman but one husband." || The words quoted in italics gave a loophole of escape from the

* Alma, chaps. viii.-x. Jacob, chap. ii. p. 6.

Helaman, chap. iii. p. II. § Ibid., 9.

| Chap. ix. p. 4.

plain words, and a subsequent revelation allowing plurality was made to Smith in 1852. Congress and the courts of the United States, it need hardly be said, have set their faces strongly against this Mormon doctrine. Severe acts against polygamy were passed in 1862 and 1882 (the Edmunds Act). The polygamist, besides being liable to criminal prosecution, was deprived of electoral and other political rights.* The Mormon Church was incorporated in 1851 by an Act of Assembly of the so-called “State of Deseret,” and confirmed by a subsequent Act of the territorial legislature of Utah. Congress in 1887 passed an Act repealing the Act of incorporation and revoking the charter, so that the Mormon Church as a body known to the law no longer exists.

The wise words of Bacon are exactly justified by the history of Mormonism. “When the religion formerly received is rent by discords; and when the holiness of the professors of religion is decayed and full of scandal ; and withal the times be stupid, ignorant, and barbarous; you may doubt the springing up of a new sect; if then also there should arise any extravagant and strange spirit to make himself author thereof; all which points held when Mahomet published his law. If a new sect have not two properties, fear it not, for it will not spread. The one is the supplanting or the opposing of authority cstablished; for nothing is more popular than that. The other is the giving license to pleasures and a voluptuous life." I


See Murphy v. Ramsey (1884), 114 U.S. Rep. 15. † Interesting cases on these points are The Late Corporation of the Church of Jesus Christ of Latter Day Saints v. United States (1889), 136 U.S. Rep. 1; I'.S. v. Late Corporation, etc. (1893), 150 U.S. Rep. 145.

* Essays : Of Vicissitudes of Things.





T is now well recognized that, in studying the history of a

nation, its legal system and the relations of the body of law to the people are of the first importance. It is the law by which the daily conduct of a people not wholly barbarous is governed, and we must examine it if we would fully understand the ideas and the feelings of an age. Thus the history of the maritime courts and of the maritime law of England reveals to us vivid pictures of its social and political past, and introduces us to unexpected sources of law and legal jurisdictions. But the early history of English maritime law has an interest beyond the boundaries of the British empire, for the beginnings of it are equally the beginnings of the maritime law of the United States. These points stand out prominently when we come to examine the genesis of the High Court of Admiralty, and of its jurisdiction during the growth of the English people. That court has been, since 1873, merged in the Supreme Court of Judicature ; it now oddly forms a part of the Probate, Divorce, and Admiralty Division, but of necessity there exists under this guise of nominal consolidation a practical separation which is inevitable, since there can never be a real consolidation of jurisdictions without a community of interests, and this does not exist by reason of the differences of the subject-matter of the jurisdiction of the Division.

But we are concerned now, not with this comparatively recent transformation of a tribunal which existed in a separate form and exercised important functions for many centuries, but with its early growth, or rather with its beginning.

It is obvious that there cannot be a Court of an Admiral unless such an officer exists, and such an appointment indicates a systematic, though it may be a rough and ready

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management of the naval affairs of a nation. In the first place, therefore, one wishes to know something accurate and definite in regard to the creation of the office of Lord High Admiral, and of the duties with which he was entrusted, since in them must obviously be found the germs of his maritime jurisdiction.

Of the origin of the High Court of Admiralty we are now much better informed since the publication by the Selden Society of the two volumes known as Select Pleas in the Court of Admiralty,* which alone would be sufficient to justify the establishing of this Society. The Introduction to them is so lucid and simple that it has a tendency to minimize the amount of valuable and careful research which has been bestowed on this work by the editor, Mr. R. G. Marsden.

From a study of the Introduction and of the body of this work it is possible to obtain some interesting light on the beginning of the High Court of Admiralty. But the following pages will be almost entirely confined to one subject, namely, the remarkable influence which mediæval piracy had on the creation of what at first was a very rude and unsystematic jurisdiction. To professional lawyers it matters not at all how a particular jurisdiction or court came into existence ; indeed, we are all too ready to forget that the history of a nation can never be properly understood without a clear perception of the connection between political and social movements and the growth of the law. But while it is necessary to realize the importance of piracy in the early ages of England, it is desirable, in the first place, for a moment to refer to the word “admiral.”

From Mr. Marsden's researches, it seems that the title "admiral” was first used in England in the fourteenth century: in 1300 one Gervase Alard is called “Admiral of the Fleet of the Cinque Ports.” That may be considered, at present at any

Selden Society. Select Pleas in the Court of Admirally. Edited for the Selden Society by Reginald G. Marsden.

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