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BEFORE LORD STOWELL'S TIME.
whereof the officers “especially complain” and desire redress.
. These are the seven articles so sharply criticized by Mr. Justice Story, in his opinion as given in the case of De Lovio v. Boit.
The agreement of 1575 was disavowed by Lord Coke; who, in the answer to it, prepared by himself, in behalf of the common-law judges, declares the agreement to be “ against the laws and statutes of the realm,” and for that reason “ the judges of the King's Bench never assented thereto, as is pretended.”
But in 1632, the resolutions of King James and his Council, “ for settling the difference concerning prohibitions,” were adopted. There were five of these resolutions in all; the object of the first four was to restrain the King's courts in awarding prohibitions against the admiralty in certain specified cases; while that of the fifth resolution was to provide, that if a party, for any such cause, be brought from prison by habeas corpus, he
, shall “ be remanded.” Now, although these resolutions were found in Coke's early Reports, yet they were entirely omitted in the later editions ; disappearing, as Dr. Arthur Browne says,
says, “ seemingly ex industriú.” 2 Browne's Civ. and Adm. L., p. 79.
However this may be, the resolutions and the “ acts and ordinances of the Republican Government in England” in 1648 (which may be found in Scobell's collection), seem to be the chief legislative provisions of permanent valué, in defining the jurisdiction and course of proceeding in the English admiralty, until a quite recent date. Forms of processes there were indeed; and orders and
1 2 Gall. 399.
BEFORE LORD STOWELL'S TIME.
decrees may be found in that ancient repository of clerical formularies, “ Clarke's Praxis,” which was translated and incorporated in Hall's “ Admiralty Practice," published at Baltimore in 1809.
But, until the latter part of the eighteenth and first half of the nineteenth centuries, very little variation in admiralty practice took place in the realm of England or her colonies, the British dependencies in North America, and the East and West Indies. The admiralty courts of the colonies were theoretically under the supervision of the Home Government; the local magistrates, appointed to preside in them, were commissioned in England; the decisions of these tribunals were subject, indeed, to be reëxamined, on appeal, by the High Court of Admiralty in England ; and, accordingly, though indispensable, these tribunals were, perhaps wisely, established in the colonies; and for a twofold purpose:
First. To supply the place of a local exchequer court in securing and collecting the revenue in the different colonies.
Second. To take general cognizance of all such civil and criminal matters as were usually embraced within the admiralty and maritime jurisdiction of Great Britain, or as should be conferred upon the colonial courts by special commission of the British government.
Ordinarily, in practice, all colonial magistrates were appointed by commissions, issuing from the Home Government, or that of the Mother Country, as it was called. These commissions conferred upon the appointees powers commonly exercised by the English judges of the High Court of Admiralty. In this manner, viceadmiralty courts in the colonies were constituted; and,
BEFORE LORD STOWELL'S TIME.
therefore, they existed as such tribunals, specially created by the law officers of the crown, for the time being
So then, the British vice-admiralty courts, in every sense, were special tribunals of the British Government, created such by their special commissions, issued at home, but designed to operate exclusively in the colonies. Being so constituted, their jurisdiction was limited or enlarged, according to the nature and number of the powers enumerated in the various commissions, wherein or whereby the delegated judicial authority was thus conferred upon the several colonial governors or deputy governors in the colonial dependencies. These commissions were the ordained charters or warrants to guide and direct the governors, who could not transend the powers therein prescribed ; but in their judicial capacity, they were necessarily confined to the exercise of those powers only which were specially enumerated in their original commissions.
In practice, the jurisdiction, so conferred, and the courts so created, answered the purpose and accomplished the object contemplated by the Home Government of England, in regard to the colonies ; 'and very well subserved the views and policy of the existing political administration of the country.
But it would seem to be an unwarranted assumption to affirm with confidence, that these special commissions were conclusive evidence, at the time, of what was the admitted general admiralty and maritime jurisdiction of the High Court of Admiralty in England, or its practice. While, therefore, these commissions were unquestionably a chart for the direction of the colonial vice-admiralty judges, they could not affect, nor did they in any
SINCE LORD STOWELL'S TIME.
indicate the limits or extent of a general admiralty jurisdiction, as exercised by the High Court of Admiralty in England. For no other purpose, therefore, can they be referred to as authority than as rules, directions, and instructions for colonial officers.
In another connection I may have occasion to state fully why it might be well to deal diffidently with these documents, as evidence of general jurisdictional powers in admiralty, of which, in no just sense, can they be deemed either a true reflection or representation.
In the latter part of the last century, the publication of admiralty reports, in England, was regularly commenced. Prior to these publications, there was but little authentic record extant of the doings or decisions of admiralty courts in Great Britain.
The papers and opinions of Sir Leoline Jenkins, a former judge of admiralty, and particularly what may be called his charge, are often referred to with respect; so also are the cases in the time of Lord Mansfield, of Lindo v. Rodney (2 Doug. 613); that of Le Caux v. Eden (3 Doug. 594); and Menetone v. Gibbons (6 T. R. 267 in 1789); likewise the reported cases of Sir George Hay and Sir James Marriott; and the formularies of Marriott have been esteemed both valuable and serviceable to civilians, who were principally engaged in practice at Doctors' Commons before the courts of admiralty. Marriott's Re
may be consulted with profit. Since his time there has appeared an almost consecutive regular series of admiralty reports, from 1799 to 1865, containing the decisions of a succession of four experienced and learned admiralty judges, which have well illustrated the rules and principles of admiralty jurisprudence in England, as well as the chief changes in its growth, during that
SINCE LORD STOWELL'S TIME.
period; its present state and condition; and nowhere, indeed, has there appeared to be claimed or even countenanced any diversity of opinion as to the meaning of the terms “ admiralty” and “ maritime” when employed to designate a peculiar kind of jurisdiction.'
In fact, during the half century and more which has now elapsed since the accession of Lord Stowell, and throughout the administration of his immediate successors, Sir Christopher Robinson, Sir John Nicholl, and Dr. Stephen Lushington, no variance whatever in the definition of these terms is to be met with in the reports of admiralty cases, or even hinted at or indicated in any admiralty judicial proceedings in England, which have come under my observation.
It is well known, that special acts of Parliament have, during the present century, materially extended admiralty jurisdiction ; and subjects, not heretofore recognized as within the cognizance of admiralty courts, are now expressly embraced within their jurisdiction.
Thus it will be perceived by referring to chapter 65, Vict. 3 and 4; chapters 78 and 104, Vict. 17 and 18; the Rules of the Privy Council of 1854, and those of Dr. Lushington of 1855; and finally the code of rules formally approved by the Queen in Council, November 29, 1859; together with the Admiralty Court Act of 1861, cited as chapter 10, Vict. 24, that English legislators have much modified, and finally moulded, English admiralty law into its present shape. Beside these, there are the Merchant's Shipping Act of 1862, cited as 25 and 26 Vict. chap. 63; and more particularly, the regulations for preventing collisions at sea, somewhat modified by the Order in Council of January 9, 1863, alike worthy
1 Vide note at the end of this chapter.