OF THE ADMIRALTY.

As the kingdom of Great Britain is on all sides surrounded by the sea, there will ever be a necessity for a strong maritime force to protect and defend it; our wooden walls are our bulwarks and redoubts, to which we owe our safety, and the protection of that advantageous commerce we carry on.

And for transacting of marine affairs, the Lord High Admiral hath courts of his own, of which that at London is principal and chief, where all process and proceedings run in his name, and not in the King's, as they do in all the Courts of common law. The first title of Admiral of England, expressly conferred upon a subject, was given by patent of King Richard II. to the Earl of Arundel and Surry; and it appears, that anciently he had jurisdiction of all causes of merchants and mariners, happening not Inst. 75. only upon the main sea, but in all foreign parts, within the King's dominions, and without them, and was to judge them in a summary way, according to the laws of Oleron and others.

In the reign of Edward III. the Court of Admiralty was established, and Richard II. W. & M. limited its jurisdiction. Of late times this high office has been generally executed by commissioners, who by statute are empowered to use and execute the same authorities as were formerly exercised by the Lord High Admiral.

c. 2.

But the requisites are, on every new commission being made out, resigned, by some deed or writing to the crown. The number of commissioners is not limited by statute, but, for many years past, the commissioners have consisted of a first commissioner, who presides at the board, and six others who take place in the order in which they are named in the commissions. They are stiled Lords of the Admiralty, and the First Lord is, in effect, Lord High Admiral, having the supreme direction of the board, except that no order or commissions are valid when signed by him alone, it being necessary for two more to sign with him, notwithstanding which he is not to be commanded by

them.

Subject to this authority are all the naval officers and shipping, and all the marine boards; as the Navy-Office, Victualling-Office, Sick and Wounded Offices, Deptford, Woolwich, Chatham, Sheerness, Plymouth, and Portsmouth Dock-Yards. As are also all the ships and vessels of war; their admirals, commanders, lieutenants, officers, and

men.

The Lords Commissioners of the Admiralty have the general direction of the affairs of the navy; they determine the number and size of the ships to be built, repaired, and put into commission: but it is a vulgar error to suppose that the First Lord has the appointment of the destination of fleets in time of war; he has only his vote as a single minister in the Cabinet Council, though, being at the head of the marine department, his advice may influence the determination of the King, and the rest of his ministers.

The Admiralty grant their commissions to such person as his Majesty directs, whereby he is appointed admiral and commander in chief of the fleet, for the expedition which is designed. And such admiral, when out of the British Channel, appoints all officers, as vacancies happen, who must be, and generally are, confirmed by the Admiralty, if no material objection occurs.

Jurisdiction of the Admiralty.

The jurisdiction of the Lord High Admiral, or of the Lords Commissioners for executing the office, is over Great Britain, Ireland, and Wales, with the dominions and

islands belonging to them: as also over all his Majesty's colunics, plantations, factories, and other settlements, dominion, and territories whatsoever in parts beyond the seas. But it must be sup altum mare, and not in partibus transmarinis. Hales P. C. 54. And the death of the party, as well as the stroke, shall be super altum mare. Ibid. The Admiralty hath cognizance of the death or maiming a man, committed in any 15 Rfc. 2. ship riding in great rivers, beneath the bridges thereof, near the sea. So by the statute c.3.5.2. 13 Car. 2. c. 9. s. 3. for offences within that statute; but the jurisdiction infrà primos pontes, shall only be for death or mayhem. Hob. 79, 213.

s. 4 Inst. 135.

But if a man be killed on any arm of the sea, where the land is seen on both sides, 3 Rep. 107. the coroner is by common law to inquire of it, and not the admiral; for the county may take cognizance of it, and where a county may enquire the Lord Admiral has no jurisdiction.

All ports and havens, as has been before observed, are infrà corpus comitatus, where 3 Inst. 113 the admiral has no jurisdiction; and, between high and low-water-mark, he and the Godb. 261. common law have it by turns, one upon the water, and the other upon the land.

The admiral hath power to arrest ships for the service of the King or Commonwealth; 13 Car. 2. and every commander, officer, or soldier of ships of war, shall observe the admiral's c. 9. command, &c. on pain of death, or other punishment.

The Lord Admiral hath power to grant commissions to inferior admirals, &c. to call Ditto. courts martial for the trial of offences against the articles of war, and these courts determine by plurality of voices, &c.

An Admiralty process is made out in the admiral's name, who has under him a Judge, commonly some learned civilian; and though the proceedings are according to civil law, and the maritime laws of Rhodes and Oleron, the sea being without the common law, yet, by stat. 28 Hen. 8. murder, robbery, &c. at sea, may be tried by see 11 and special commission to the Lord Admiral, &c. according to the laws of England. 12. Wil. 5. Piracy also upon the sea is within the jurisdiction of the Admiralty, and an accessary to piracy is triable before the admiral, since the statute 28. H. 8. c. 15. 3 Inst. 112. Sir L. Jenk, 1 vol. p. 94.

c. 7.

The Admiralty is said to be no court of record, on account of its proceeding by the 4 Iust, 133, civil law.

But the Admiralty has jurisdiction where the common law can give no remedy; and 6 Rep. all maritime causes, or causes arising wholly upon the sea, it hath cognizance of. The Admiralty hath jurisdiction in cases of freight, mariners' wages, breach of a Cro. 216. charter-parties, though made within the realm; if the penalty be not demanded; and likewise in case of building, mending, saving, and victualling ships, &c. so as the suit be against the ship, and not only against the parties; but it was held that if a charterparty of affreightment, which is a marine contract, be made at land, and the breach of covenant happen at sea, the Admiralty hath no jurisdiction. 1 Woodd. 141. Hob. 212. Mariners' wages are contracted on the credit of the ship, and they may all join suits 1 Sik. 32. in the Admiralty, whereas in common law they must all sever; and, on the contrary, the master of a ship contracts on the owners' credit, and not the ship's, and therefore he cannot prosecute in the Admiralty for his wages; but a mate may. 1 Salk 33.

The ship is the debtor, and by the law of the Admiralty they may attach her, which by the common law they cannot do. 1 Ld. Raym. 577.

2 Show. 86.

It is allowed by the common lawyers and civilians, that the Lord Admiral has cogni- Wood'. zance of seamen's wages and contracts, and debts, for making ships; also of things done in navigable rivers, concerning damages to persons, ships, goods, annoyances of free passage, &c. of contracts, and other things done beyond sea, relating to navigation and marine tradę.

2 Bulst. 322.

4 Leon.

257.

Heb. 11.

1

The Admiralty law fur wages (as that freight is the mother of wages, that none are paid whilst loading and unloading) may be superseded by special agreement, Champion v. Nicholas. Strange 405.

But if a contract be made beyond sea for doing of an act, or payment of money within this kingdom, or the contract is upon the sea, and not for a marine cause, it shall be tried by jury; for where part belongs to the common law, and part to the admiral, the common law shall be preferred; and contracts made beyond sea may be tried in B. R. and a fact be laid to be done in any place in England, and so tried here. Where a contract is made in England, and there is a conversion beyond sea, the party may sue in the Admiralty, or at common law.

So where a bond is made and delivered in France: an obligation made at sea, it has been held, cannot be sued in the admiral's court, because it takes its course, and binds according to the common law.

3 Lev. 60. The Court of Admiralty cannot hold plea of a matter arising from a contract made upon the land, though the contract was concerning things belonging to the ship; but the Admiralty may hold plea for the seamen's wages, &c. because they become due for labour done on the sea; and the contract made upon land is only to ascer tain them.

I Salk. 31.

Though where there is a special agreement in writing, by which seamen are to reSee Hob. ceive their wages in any other manner than usual; or if the agreement at land be under seal, so as to be more than a parole contract, it is otherwise.

79.

1 Lill, 368.

March's
Rep. 204.

Godb. 260,
1 Shep.
Ab. 129.

If goods delivered on shipboard are embezzled, all the mariners ought to contribute to the satisfaction of the party who is the sufferer, by the marine law, and the cause is to tried in the Admiralty.

By the custom of the Admiralty, goods may be attached in the hands of a third per son, in causa maritima & civili, and they shall be delivered to the plaintiff after defaults, on caution to restore them, if the debt, &c. be disproved in a year and a day; and if the party refuse to deliver them, he may be imprisoned quosque, &c.

The Court of Admiralty may cause a party to enter into a bond, in nature of caution or stipulation, like bail at common law; and if he render his body, the sureties See 1 Salk, are discharged; and execution shall be of the goods, or the body, &c. not of the lands.

33.

Owen 122.

Some sailors clothes were bought in the parish of St. Catharine, near the Tower, Hughes Ab. London, and were delivered in the ship: on a suit in the Admiralty for the money, prohibition was granted; for this was within the county. The same of a ship at Blackwall, &c.

113.

} Show. 379,

4 Inst. 141.

1 Roll's

But the Admiralty may proceed against a ship, and the sails, and tackle, when they are on shore, although alledged to be detained on land; yet upon alledging offer of a plea, claiming property therein, and refusal of the plea, on this suggestion, a prohibition shall be had.

The Admiralty Court may award execution upon land, though not hold plea on any thing arising on land.

And, upon letters missive or request, the Admiralty here may award execution, on a Abrid.530. judgment given beyond sea, where an Englishman flies, or comes over hither, by imprisonment of the party who shall not be delivered by the common law.

Sid, 418.

Raym, 437.

When sentence is given in a foreign Admiralty, the party may libel for execution of that sentence here; because all Courts of Admiralty in Europe are governed by the civil law.

Sentences of any Admiralty in another kingdom are to be credited, that our's may be credited there, and shall not be examined at law here; but the King may be peti

tioned, who may cause the complaint to be examined; and, if he finds just cause, may send to his ambassador where the sentence was given, to demand redress; and upon failure thereof, will grant letters of marque and reprisal.

If one be sued in the Admiralty, contrary to the statutes 13 and 13 R. 2. he may 10 Rep.75. have a supersedeas, to cause the Judge to stay the proceedings, and also have action against the party suing.

A ship being privately arrested by Admiralty process only, and no suit, it was ad- Saik. 31, judged a prosecution within the meaning of the statutes, and double damages, &c. shall 39.

be recovered.

And if an erroneous judgment is given in the Admiralty, appeal may be had to delegates appointed by commission out of Chancery, whose sentence shall be final.

Eliz, có 5.

The Lord High Admiral of Great Britain doth, by virtue of his place, appoint, in Stat. 8 divers parts of the kingdom, his several substitutes, or vice admirals, with their Judges and marshals, by patent under the great seal of the High Court of Admiralty, which vice-admirals and Judges do exercise jurisdiction in maritime affairs, within their several limits; and in case any person be aggrieved by any sentence or interlocutory decree that has the force of a definitive sentence, he may appeal to the High Court of Admiralty. Besides the above-mentioned vice-admirals, &c. the Lord High Admiral hath under him many officers differing in degrees and qualities, as some are of a military and others of a civil capacity, some judicial and others ministerial; so that the marine jurisdiction may justly be deemed a separate commonwealth or kingdom, and the Lord High Admiral be reputed as a viceroy of it.

There is, under this court, a Court of Equity, for determining differences between merchants; and in criminal affairs, which is commonly about piracy: the proceeding in this Court was formerly by accusation and information, according to the civil law, by a man's own confession, or eye-witnesses, by which any one was to be proved guilty before he could be condemned; but that being found inconvenient, there were two statutes made by Hen. 8. that criminal affairs should be tried by witnesses and a jury, and this by a special commission of the King to the Lord Admiral, wherein some of the Judges of the realm are ever Commissioners, and the trial, according to the laws of England, directed by those statutes.

There seems to be divisum imperium between the common law of England and the Admiralty; for so far as low water-mark is observed in the sea, is counted infrà corpus comitatus adjacentis, and the causes thence arising are determinable by the common law; yet when the sea is full, the admiral hath jurisdiction here also, so long as the sea flows, over matters done between the low water-mark and the land, as appears in Sir Henry Constable's case.

There is another branch of Admiralty jurisdiction called the Prize Court, which is perfectly distinct; and holden by a separate commission to that of the Judge of the Admiralty.

This is the sole and exclusive judicature for determining in the first instance, whether any maritime capture or seizure, is or is not lawful prize.

And it is held that the jurisdiction of this Court extends not only to prizes and captures taken actually at sea, but also to all prizes and captures taken at land by ships or detachments from them, &c. See the whole of the law as to this part of the Admiralty jurisdiction, collected together in Dougl. Rep. 591. in notis, where the judgment of Lord Mansfield in the case of Lindo v. Rodney, and others, is fully given.

When this Court acts within the scope of its authority, and the suitors are dissatisfied with their decisions, an appeal may be had from the Prize Court to the Lords Commissioners in prize causes, all of whom usually are, and a majority of such as give sen

5 Rep. Cake,

p. 137.

22 Geo. 2. c. 33.

tence must be, members of the Privy Council, and who finally determine the question appealed against. 1 Woodd. V. L. 143.

The management of the navy royal, under the Lord High Admiral, is committed to the care of the principal officers and commissioners of it; and as all the laws, for regulating and ordering his Majesty's navies and forces by sea, were in the 22 Geo. 2. collected and formed into one body, I have determined to give my reader an abstract of it, in hopes the inspecting so excellent a code may afford him pleasure.

The preamble sets forth, that the several sea-laws having been found not to be so full, clear, expedient, or consistent with each other, as they ought to be, therefore, to amend and explain the same, and to reduce them into one uniform act, it is enacted, that from and after the 25th of December, 1749, the articles and orders following, as well in 22 Geo. 2, time of peace as in war, shall be observed and put in execution in manner herein-after mentioned.

P. 609,

P. 699,

1. All commanders, captains, &c. of his Majesty's ships of war, shall cause the public worship of Almighty God, according to the Liturgy of the Church of England, to be reverently performed in their respective ships; and shall take care that prayers and preaching be performed diligently, and that the Lord's day be observed according to law.

2. All flag-officers, and persons belonging to his Majesty's ships of war, being guilty of profane oaths, cursings, execrations, drunkenness, uncleanness, or other scandalous actions, in derogation of God's honour, and corruption of good manners, shall incur such punishment as a court martial shall think fit to impose, &c.

3. If any officer or other person of the fleet shall give or entertain intelligence to or with any enemy, or rebel, without leave from the King or the Lord High Admiral, &c, and be thereof convicted by a court martial, he shall be punished with death.

4. If any letter or message from any enemy or rebel be conveyed to any officer, or any other person in the fleet, and such person shall not, within twelve hours, having opportunity, acquaint his superior officer with it; or if any superior officer, being ac quainted therewith, shall not in convenient time reveal the same to the commander in chief, every person so offending shall suffer death, &c.

5. All spies, who shall bring or deliver any seducing letters or messages from any enemy or rebel, or endeavour to corrupt any person in the fleet, they shall suffer death. 6. No person in the fleet shall relieve an enemy or rebel with money, victuals, powder, shot, arms, ammunition, or any other supplies, directly or indirectly, upon pain of death, &c.

7. All writings whatsoever, that shall be taken or found on board ships which shall be taken as prize, shall be preserved, and the originals shall, by the commanding of ficer of the ship which shall take such prize, be sent entirely and without fraud to the Court of Admiralty, or such other Court or Commissioners as shall be authorized to dermine whether such prize be lawful capture, there to be viewed, made use of, and proceeded upon, according to law, upon pain of forfeiting his share of the capture, &c.

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8. No person in or belonging to the fleet shall take out of any prize any money, plate, or goods, unless it shall be necessary for the better securing thereof, or for the necessary use or service of any of his Majesty's ships of war, before the same be adjudged lawful prize; but the entire account of the whole, without embezzlement, shall be brought in, and judgment passed upon the whole, without fraud, upon pain that every person offending shall forfeit his share of the capture, &c.

9. If any vessel shall be taken as prize, none of the officers or persons on board her shall be stripped of their cloaths, or pillaged, beaten, or evil-intreated, upon pain that the offender shall be punished as a court martial shall sentence.

L.