CHAP. I. seemeth, therefore, that King Edw. III. after the 27th of his reigne being laden very heavily with the wars of France and foreign affairs, and encumber'd also with marine causes, by reason of the great trade of merchandize then flourishing, somewhat to lighten the ship of his royal cares, delivered these businesses over unto the admiralls," &c. These are the grounds upon which he forms his opinion; now as to the first, viz. that the admiral's jurisdiction is not mentioned in the 3 of Edw. I. It is not very extraordinary that there should be no mention made in the statute of the jurisdiction of the Admiralty in reference to a subject over which it was not intended that the Admiralty Court shonld have authority, and which authority is therein expressly given to the law of the land. Had Spelman lived long enough he would have seen no mention of Admiralty Jurisdiction in a statute of the 12th of Anne, which was a continuation of the 3rd of Edw. 1.* Secondly, as to its not being mentioned in Britton, we return to Lambard, who, in speaking of some court not mentioned in Britton, which clearly existed at the time he wrote, says, t "And albeit that Britton, whose purpose was only to set forth the courts whereof there was COMMON USE, * What will so much destroy the authority of Sir H. Spelman, at least in this matter, is, that in his whole discourse on the Admiralty Jurisdiction he has inferred so much from neither the Admiral nor his Court having been mentioned in the early statutes which relate to wreck of the Sea; as if he, or that Court had jurisdiction therein, at the time he wrote. Having been so incorrect, in his fact, the inference which he deduces from it necessarily dies with it. It is also remarkable, that in another part of the same treatise in which he endeavours to show that those subjects which are now within the Jurisdiction of the Admiralty Court, were then triable at Common Law, he has only produced the subject of wreccum maris, and has made every deduction from that circumstance; and, strange to say, there is in the same book, this candid avowal, “But I don't find how contracts and actions arising on the Maine Sea were then discussed." † Page 52. of the Archeion; Edition of 1635, D. Frere, London. hath not numbered it among the courts of that time, yet I doe verily believe that it came hither with the conquerour out of Normandy." There is but little, therefore, if anything in favour of his opinion by reason of its not finding a place in Britton's enumeration of the courts. As to the third ground, what has been said above at p. 3. respecting Lambard applies equally here, and it can be the more satisfactorily answered, when we can show some good reason for King Edward III. being mentioned in that statute, which was, as will be more fully stated below, namely that in the reign of Edward III. the Judges were then consulted "for the better retaining and preserving the authority of the English Admiralty in explaining and correcting the laws made for the maintenance of peace and the administration of justice to all nations and people navigating in the English seas.”† * Having shown (I trust satisfactorily) that from the manner in which both Spelman and Lambard found the Admiralty Jurisdiction mentioned, they had not sufficient cause to infer that it then originated, it only remains for us to observe, if we can find any wellauthenticated account of that jurisdiction mentioned as existing previous to such period, and then to dismiss both Lambard and Spelman without further apology for having taken so much liberty with their opinions. We shall discover, on the contrary, that the origin of the jurisdiction exercised by the Admirals' Court is buried in an antiquity much more venerable than that which has been assigned to it by the authorities mentioned above; and in favour of such antiquity it is no slight circumstance, that before England had a fleet, viz. a navy so organised as to deserve the name, there *These words clearly imply a pre-existence. CHAP. 1 CHAP. I. appears to have been a great officer of state who was intrusted with the custody of the sea; such person being called, in those commissions which are preserved to us, the custos maris, and his charge was said to be that of maritime England.* That this person was not necessarily the actual commander of a number of ships, but that he was that officer of state who presided generally over maritime affairs, is no unreasonable conjecture; the more so, as we shall be able to deduce much from authentic records which will force such conjecture into an almost certainty. All the commissions, or patents, from the king to his admirals, previous to the reign of King John, are lost †, so that we are unable to observe what were the kind of duties which belonged to this office. The duties of the admirals ‡, who succeeded as well to this custody of the sea as to that of the fleet, appear to have been, not only to command ships in battle and to superintend the naval strength of the kingdom, but to administer justice in all causes arising on the seas. The latter duties are now, as heretofore, executed by the High Court of Admiralty, and are those which it is the object of the present work to illustrate; the former are now under * Richardus de Lucy dicitur habere maritimam Angliæ. Pat. 8. Hen. 3. Thomas de Moleton capitaneus et custos maris, 48. Hen. 3. † Seld. Mare cl. 1. 2. c. xiv. Many angry disputations, and much learning has been uselessly expended on the question as to how the name Admiral came into this country; some deriving it from the Saxon Aen mereal, i. e. over all the sea; others from the language of the Moors (Emir ;) others from the Greek Apvpos; others make it a mongrel, from the Arabian and Greek Amira and aλios; some that we copied it from the French; Spelman thought it was brought direct from the Holy Land by Richard I. &c. However, the result of all these, and many other, arguments and etymological opinions, have brought the question so far, as fully to convince us how useless they were as a means of throwing any light upon the introduction of the office, and there appears to be no occasion to go so far for so little. It was, originally at least, a name more of dignity than of office. the control of that department of the government called the Admiralty. In order to authenticate what has been advanced respecting the admiral having entertained maritime causes at this early period, we must refer to the writings of Lord Coke, who has assigned to this maritime jurisdiction a most venerable antiquity; but the research of that great lawyer was insufficient to discover any precise period when the admiral was first intrusted with such authority. Time out of minde are the general words under which he shields himself. In his commentary upon Littleton, he says, "And yet altum mare is out of the jurisdiction of the common law, and within the jurisdiction of the lord admirall, whose jurisdiction is verie antient, and long before the reigne of Edward the Third, as some have supposed, as may appear by the lawes of Oleron (so called for that they were made by king Richard the First when he was there) that there had been an admirall time out of minde, and by many other antient records is most manifeste." But as his commentator or animadverter, the learned Prynne, has fixed a more certain period to this jurisdiction, and has given the records from which Coke has quoted or made these deductions, he is entitled to our attention first. He says, "In my perusal of the Black Book of the Admiralty there reserved, (of as great authority with them as the Black and Red Books in the Court of Exchequer are there) p. 24. 27., I found an ordinance made at Ipswich in the reign of King Henry I. by the admirals of the north and west, and other lords and of DIVERS KINGS before that time, containing the manner of outlawing and banishing persons attainted of felony or trespass in the Admirals' Court; the former whereof is there recorded at large: by which it is apparent that there was an Admirals' Court, and pro† Cap. 22. p. 106. * P. 260. b. CHAP. I. CHAP. I. ceedings in it even in criminal and capital causes, relating to mariners and seamen (as well as in civil). In the reign of King Henry I. derived from our ancient Saxon kings Alfred, Edgar, Ethelred, and others who had the dominion of the British Ocean, which continued in use till the reign of King Richard I." The next mention of any kind of Admiralty Jurisdiction is a charter of Richard I. addressed to the admirals of the fleet which was fitted out to the Holy Land.* The making of the laws of Oleron are then relied on, and several ordinances made by that king †, by King John‡, Henry III., and Edward I., at Hastings, not only for the government of the British navy, but ordinances concerning merchants and mariners, which the learned Prynne states, he had transcribed from the Black Book of the Admiralty. The one which more especially relates to the subject now under discussion is the following, which is stated to have been made at Hastings by Edward I. in the following words, "chescun contract fait enter merchant et merchant, ou merchant ou mariner oustre le mere, ou dans le flode marke, seron trie devant l'admiral et nenient alibi; per le ordinance de dit Roy Edward et ses seigneurs." There is less reason to doubt the authenticity of these regulations, when we observe in several of the oldest * Hovenden, p. 666. The charter is printed at length in Prynne, 106. † An ordinance of Richard I. is also quoted by Prynne as extracted from the Black Book of Admiralty made at Grimesby to the effect; that if the admiral, by the king's command, arrested any ships for the king's service, and he or his lieutenant retourned and certified the arrest in Chancery, the master or owner could not be admitted to plead against the return, and if the ship so arrested break the arrest, and the master or owner be convicted thereof devant l'admiral, by the oath of twelve men, the ship shall be confiscated. In one of those ordinances King John appears to have recognised the laws of Oleron. |