1911 Encyclopædia Britannica/Admiralty, High Court of
ADMIRALTY, HIGH COURT OF. The High Court of Admiralty of England was the court of the deputy or lieutenant of the admiral. It is supposed in the Black Book of the Admiralty to have been founded in the reign of Edward I.; but it would appear, from the learned discussion of R. G. Marsden, that it was established as a civil court by Edward III. in the year 1360; the power of the admiral to determine matters of discipline in the fleet, and possibly questions of piracy and prize, being somewhat earlier. Even then the court as such took no formal shape; but the various admirals began to receive in their patents express grants of jurisdiction with powers to appoint lieutenants or deputies. At first there were separate admirals or rear-admirals of the north, south and west, each with deputies and courts. A list of them was collected by Sir H. Spelman. These were merged in or absorbed by one high court early in the 15th century. Sir Thomas Beaufort, afterwards earl of Dorset and duke of Exeter (appointed admiral of the fleet 1407, and admiral of England, Ireland and Aquitaine 1412, which latter office he held till his death in 1426), certainly had a court, with a marshal and other officers, and forms of legal process—mandates, warrants, citations, compulsories, proxies, &c. Complaints of encroachment of jurisdiction by the Admiralty Courts led to the restraining acts, 13 Ric. II. c. 5 (1389), 15 Ric. II. c. 3 (1391) and 2 Hen. IV. c. 11 (1400).
The original object of the institution of the courts or court seems to have been to prevent or punish piracy and other crimes upon Jurisdiction. the narrow seas and to deal with questions of prize; but civil jurisdiction soon followed. The jurisdiction in criminal matters was transferred by the Offences at Sea Act 1536 to the admiral or his deputy and three or four other substantial persons appointed by the lord chancellor, who were to proceed according to the course of the common law. By the Central Criminal Court Act 1834, cognizance of crimes committed within the jurisdiction of the admiralty was given to the central criminal court. By an act of 1844 it has been also given to the justices of assize; and crimes done within the jurisdiction of the admiralty are now tried as crimes committed within the body of a county. See also the Criminal Law Consolidation Acts of 1861.
From the time of Henry IV. the only legislation affecting the civil jurisdiction of the High Court of Admiralty till the time of Queen Victoria is to be found in an act of 1540, enabling the admiral or his lieutenant to decide on certain complaints of freighters against shipmasters for delay in sailing, and one of 1562, giving the lord high admiral of England, the lord warden of the Cinque Ports, their lieutenants and judges, co-ordinate power with other judges to enforce forfeitures under that act—a very curious and miscellaneous statute called “An Act for the Maintenance of the Navy.”
In an act of 1534, with regard to ecclesiastical appeals from the courts of the archbishops to the crown, it is provided that the appeal shall be to the king in Chancery, “and that upon every such appeal a commission shall be directed under the great seal to such persons as shall be named by the king's highness, his heirs or successors, like as in cases of appeal from the Admiralty Court.” The appeal to these “persons,” called delegates, continued until it was transferred first to the privy council and then to the judicial committee of the privy council by acts of 1832 and 1833.
The early jurisdiction of the court appears to have been exercised very much under the same procedure as that used by the courts of common law. Juries are mentioned, sometimes of the county and sometimes of the county and merchants. But the connexion with foreign parts led to the gradual introduction of a procedure resembling that coming into use on the continent and based on the Roman civil law. The Offences at Sea Act 1536 states the objection to this application of the civil law to the trial of criminal cases with much force: “After the course of the civil laws, the nature whereof is that before any judgment of death can be given against the offenders, either they must plainly confess their offences (which they will never do without torture or pain), or else their offences be so plainly and directly proved by witness indifferent such as saw their offences committed, which cannot be gotten but by chance at few times.”
The material enactments of the restraining statutes were as follows:—An act of 1389 (13 Ric. II. c. 5) provided that “the admirals and their deputies shall not meddle from Restraining Acts. henceforth of 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.” The act of 1391 (15 Ric. II. c. 3) provided that “of all manner of contracts, pleas and quarrels, and 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 cognizance, 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, determined, discussed and remedied by the laws of the land, and not before nor by the admiral, nor his lieutenant in anywise. Nevertheless, of the death of a man, and of a maihem 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 cognizance, and also to arrest ships in the great flotes for the great voyages of the king and of the realm; saving always to the king all manner of forfeitures and profits thereof coming; and he shall have also jurisdiction upon the said flotes, during the said voyages only; saving always to the lords, cities, and boroughs, their liberties and franchises.” The act of 1400 (2 Hen. IV. c. 11) adds nothing by way of definition or restriction, but merely gives additional remedies against encroachments, providing heavy fines for those who improperly sue in the court, and those officials of the court who improperly assert jurisdiction. It was repealed by the Admiralty Court Act 1861. The statutes of Richard, except the enabling part of the second, were repealed by the Civil Procedure Acts Repeal Act 1879. The formation of a High Court of Justice rendered them obsolete.
In the reign of James I. the chronic controversies between the courts of common law and the Admiralty Court as to the limits of their respective jurisdictions reached an acute stage. We find the records of it in the second volume of Marsden's Select Pleas in the Court of Admiralty, and in Lord Coke's writings: Reports, part xiii. 51; Institutes, part iv. chap. 22. In this latter passage Lord Coke records how, notwithstanding an agreement asserted to have been made in 1575 between the justices of the King's Bench and the judge of the admiralty, the judges of the common law courts successfully maintained their right to prohibit suits in admiralty upon contracts made on shore, or within havens, or creeks, or tidal rivers, if the waters were within the body of any county, wheresoever such contracts were broken, for torts committed within the body of a county, whether on land or water, and for contracts made in parts beyond the seas. It is due to the memory of the judges of Lord Coke's time to say that, at any rate as regards contracts made in partibus transmarinis, the same rule appears to have been applied at least as early as 1544, the judges then holding that “for actions transitory abroad action may lie at common law.”
All the while, however, the patents of the admiralty judge purported to confer on him a far ampler jurisdiction than the jealousy of the other courts would concede to him. Judge's patent. The patent of the last judge of the court, Sir Robert Joseph Phillimore, dated the 23rd of August 1867, styles him “Lieut. Off1. Princ1. and Commissary Gen1. and Special in our High Court of Admiralty of Eng. and President and Judge of the same,” and gives to him power to take cognizance of “all causes, civil and maritime, also all contracts, complaints, offences or suspected offences, crimes, pleas, debts, exchanges, accounts, policies of assurance, loading of ships, and all other matters and contracts which relate to freight due for the use of ships, transportation, money or bottomry; also all suits civil and maritime between merchants or between proprietors of ships and other vessels for matters in, upon, or by the sea, or public streams, or fresh-water ports, rivers, nooks and places overflown whatsoever within the ebbing and flowing of the sea and high-water mark, or upon any of the shores or banks adjacent from any of the first bridges towards the sea through England and Ireland and the dominions thereof, or elsewhere beyond the seas." Power is also given to hear appeals from vice-admirals; also "to arrest . . . according to the civil laws and ancient customs of our high court . . . all ships, persons, things, goods, wares and merchandise"; also "to enquire by the oaths of honest and lawful men . . . of all . . . things which . . . ought to be enquired after, and to mulct, arrest, punish, chastise and reform"; also ``to preserve the public streams of our admiralty as well for the preservation of our royal navy, and of the fleets and vessels of our kingdom . . . as of whatsoever fishes increasing in the rivers"; also "to reform nets too straight and other unlawful engines and instruments whatsoever for the catching of fishes"; also to take cognizance "of the wreck of the sea . . . and of the death, drowning and view of dead bodies," and the conservation of the statutes concerning wreck of the sea and the office of coroner , and concerning pillages , and "the cognizance of mayhem" within the ebb and flow of the tide; all in as ample manner and form as they were enjoyed by Dr David Lewis [judge from 1558 to 1584], Sir Julius Caesar, and the other judges in order (22 in all) before Sir Robert Phillimore. This form of patent differs in but few respects from the earlier Latin patents —tempore Henry VIII.—except that they have a clause non obstantibus statutis.
As has been said, however, the contention of the common law judges prevailed, and the Admiralty Court (except for a temporary revival under Cromwell) sank into comparative Modern
progress. insignificance during the 17th century. The great maritime wars of the 18th century gave scope to the exercise of its prize jurisdiction; and its international importance as a prize court in the latter half of the 18th and the first part of the 19th centuries is a matter of common historical knowledge. There were upwards of 1000 prize causes each year between 1803 and 1811, in some years upwards of 2000.
There were other great judges; but Sir William Scott, afterwards Lord Stowell, is the most famous. Before his time there were no reports of admiralty cases, except Hay and Marriott's prize decisions. But from his time onwards there has been a continuous stream of admiralty reports, and we begin to find important cases decided on the instance as well as on the prize side.
In the reign of Queen Victoria, two enabling statutes, 1840 and 1861, were passed and greatly enlarged the jurisdiction of the court. The manner in which these statutes were administered by Dr Stephen Lushington and Sir R. J. Phillimore, whose tenure of office covered the whole period of the queen's reign till the creation of the High Court of Justice, the valuable assistance rendered by the nautical assessors from the Trinity House, the great increase of shipping, especially of steam shipping, and the number and gravity of cases of collision, salvage and damage to cargo, restored the activity of the court and made it one of the most important tribunals of the country. In 1875, by the operation of the Judicature Acts of 1873 and 1875, the High Court of Admiralty was with the other great courts of England formed into the High Court of Justice. The principal officers of the court in subordination to the judge were the registrar (an office which always points to a connexion with canon or civil law), and the marshal, who acted as the maritime sheriff, having for his baton of office a silver oar. The assistance of the Trinity Masters, which has been already mentioned, was provided for in the charter of incorporation of the Trinity House. These officers and their assistance have been preserved in the High Court of Justice.
Till the year 1859 the practitioners in the High Court of Admiralty were the same as those in the ecclesiastical courts and distinct from those who practised in the ordinary Practi-
the court.courts. Advocates took the place of barristers, and proctors of solicitors. The place of the attorney-general was taken by the king's or queen's advocate-general, and that of the treasury solicitor by the king's or queen's procurator or proctor. There were also an admiralty advocate and an admiralty proctor. The king's advocate also represented the crown in the ecclesiastical courts, and was its standing adviser in matters of international and foreign law. The king's advocate led the bar of his courts, and before the privy council took precedence of the attorney-general. The admiralty advocate or advocate to his majesty in his office of admiralty represented specially the lords of the admiralty. In the Admiralty Court he ranked next after the king's advocate.
In an act of 1859 the practice was thrown open to barristers and to attorneys and solicitors.
Upon the next vacancy after the courts were thrown open, the crown altered the precedence and placed the queen's advocate after the attorney- and solicitor-general. There were two holders of the office under these conditions, Sir R. J. Phillimore and Sir Travers Twiss. The office was not filled up after the resignation of the latter. The admiralty had, when the courts were thrown open, a standing counsel for the ordinary courts and a solicitor. Questions soon arose as to the respective claims of the admiralty advocate and the counsel to the admiralty, and their acuteness was increased when the courts were fused into one High Court of Justice. Upon the resignation of Sir James Parker Deane the office of admiralty advocate was not filled up. In like manner the proctor to the admiralty has disappeared. The office of king's or queen's proctor has been kept alive but amalgamated with that of the solicitor for the treasury. That officer uses the title of king's proctor when he appears in certain matrimonial causes.
The last holder of the office of standing counsel to the admiralty was Alexander Staveley Hill, K.C.,M.P. Since his death the office, like those of the king's or queen's advocate and the admiralty advocate, has not been filled up; and the ordinary law officers of the crown with the assistance of a junior counsel to the admiralty (a barrister appointed by the attorney-general) perform the duties of all these offices.
The judge advocate of the fleet is a practising barrister whose function it is to advise the admiralty on all matters connected with courts-martial. Though section 61 of the
of the Fleet.Naval Discipline Act 1866 recognizes the possibility of his presence at a court-martial, he does not nowadays attend, but is represented by his deputy or by an officiating deputy judge advocate appointed ad hoc by the admiralty, the commander-in-chief of the fleet or squadron who convenes the court-martial, or, if no such appointment is made, by the president of the court-martial. But though the judge advocate of the fleet does not actually attend the courts-martial very responsible duties are imposed upon him. By a minute of the Board passed in 1884 (which is still in force) all proceedings of courts-martial on officers and men of the royal navy, excepting those where the prisoner pleads guilty and no evidence is taken, are to be referred to him, with a view to the consideration of (a) the charge, (b) the evidence on which the finding is based, and (c) the legality of the sentence, and he writes a minute on each case for the information of the lords commissioners of the admiralty with regard to these points. He has no power to modify a sentence, a power which is reserved to the admiralty by § 53 (1) of the Naval Discipline Act 1866, except in the case of a death sentence, which can only be remitted by the crown. All cases where the prisoner has pleaded guilty are examined in the admiralty, and if in any case there is any reason to think that there has been any informality or that the prisoner has not understood the effect of his plea, such case is submitted to the judge advocate of the fleet for his opinion. The judge advocate of the fleet receives no fees but is remunerated by a salary of £ 500 per annum.
The existence of a deputy judge of the fleet appointed by the admiralty has been recognized by the king's regulations, but no such officer had been appointed up to 1908.
In accordance with the provisions of § 61 of the Naval Discipline Act 1866, in the absence of the judge advocate of the fleet and his deputy, an officiating judge advocate is appointed for each court-martial. His duties are described in detail by the king's regulations, but may be summed up as consisting of seeing that the charges are in order, pointing out any informalities or defects in the charges or in the constitution of the court, seeing that any witness required by prosecutor or prisoner is summoned, keeping the minutes of the proceedings, advising on matters of law which arise at any time after the warrant for the court-martial is issued, drawing up the findings and sentence, and forwarding the minutes when completed to the admiralty. The officiating judge advocate is usually the secretary of the flag-officer convening the court-martial or some other officer of the accountancy branch. He is remunerated for his services by a fixed fee for each day the court sits.
Ireland.—The High Court of Admiralty of Ireland, being formed on the same pattern as the High Court in England, sat in the Four Courts, Dublin, having a judge, a registrar, a marshal and a king's or queen's advocate. In peace time and war time alike it exercised only an instance jurisdiction, though in 1793 it claimed to exercise prize jurisdiction (see Admiralty Jurisdiction.) No prize commission ever issued to it. By the Irish Judicature Act of 1877 it was directed that it should be amalgamated with the Irish High Court of Justice upon the next vacancy in the office of judge, and this subsequently took place. There was no separate lord high admiral for Ireland.
Scotland.—At the Union, while the national functions of the lord high admiral were merged in the English office it was provided by the Act of Union that the Court of Admiralty in Scotland should be continued "for determination of all maritime cases relating to private rights in Scotland competent to the jurisdiction of the Admiralty Court." This court continued till 1831, when its civil jurisdiction was given to the Court of Session and the Sheriffs' Courts (see Admiralty Jurisdiction),
1 The Board of Ordnance was originally instituted for the navy, but eventually fell into military hands, to the detriment of the navy —the only navy of any nation that has not full authority over its own ordnance. In 1653, according to Oppenheim, it was, owing to its inefficiency, placed under the admiralty. In 1632 it appears to have been independent, but ``still retained that evil pre-eminence in sloth and incapacity it had already earned and has never since lost."
2 Admiral Sir Cooper Key, when director of naval ordnance during Mr Childers' administration, observed to the writer that no first lord of the admiralty knew so little of the working of the admiralty as Mr Childers, because, owing to the discontinuance of board meetings, he lost the great advantage of hearing the discussion. (R. V. H.)
3 The drawback is, that a naval lord can only go on leave by throwing all his work on a colleague already overweighted with work.