PREFACE.

THE Law of England, consisting of a body of maxims founded on the principles of natural justice and equity, extended and applied by a series of statutes, the growth of several centuries, necessarily partakes of the varied character assumed during that period by the constantly increasing relations of her commerce, and her progress to the high state of civilisation and refinement she has now attained.

In the absence of any code, systematising and reducing into more regular order the entire laws of the country, (the expediency of which has long engaged the attention of some of her ablest lawyers and philosophers, though hitherto without any material result,) the wisdom and right adaptation of those laws to the purposes intended are to be found mainly in the decisions of the Judges, whose talents and attainments, as exhibited in their masterly expositions of the principles applicable to the various cases submitted to them for adjudication, are equalled only by the impartiality and integrity with which they have so long upheld the high character of the tribunals of their country, and established for themselves a lasting reputation.

The progress of time has added so largely to the voluminous stock of reported cases, that hence has arisen the necessity, of late years generally recognised and acted upon, for analytical compilations or Digests of the various dicta of the learned Judges classed under distinct heads, and embracing the necessary facilities of reference, so as to bring under one view the entire doctrine on each subject. These Digests are indispensable to the researches of the student or occasional reader, whilst those whose professional duty imposes upon them the obligation of a more elaborate consideration of rules and principles of law, and their application to decided cases, derive great assistance from, and are spared the loss of much valuable time by, the ready means of reference thus afforded

to them.

As, however, the compilation of a work of this description would seem to fall more appropriately within the province of a higher department of the profession than that to which the Author has the honour to belong, it may perhaps be permitted to him to state the circumstances under which he has been induced to venture on its publication. His original intention was merely to collect and arrange, in notes of his own, with a view to the acquisition of more accurate knowledge in the practice of his profession, the leading principles of the law as administered in the Ecclesiastical and Admiralty

Courts, and the particular cases in which those principles are explained or illustrated. As he proceeded in the execution of this intention he found it essential to the full accomplishment of his object to give to his labours a more extended character, and he then received the impression that, with a little more care in the preparation, they might be made useful to the profession generally. In the Ecclesiastical department the valuable Digest of Dr. Maddy appeared to have in some measure pre-occupied the ground, but, finding that the reports of the able and important decisions of the Court of Admiralty in the various branches of Maritime Law, of which it has cognisance, were without any complete analysis or compilation, he was led to attempt the present Digest of them; and, at the suggestion of a learned member of the Bar in Doctors' Commons, he included in his work a similar Digest of all the analogous cases in the Common Law, Equity, and Ecclesiastical Courts, and of the statutes relating thereto, with references to the leading text authorities affecting or illustrating the decisions reported. With these additions the learned gentleman referred to was pleased to consider the work would prove acceptable and useful not only to the practitioners in Doctors' Commons, but to members of the legal profession generally—to the former as facilitating their reference to more extended sources of information, and to the latter, as developing and illustrating the principles and practice of a branch of the law, which, though only occasionally attracting their attention, is highly interesting, from its great importance to the commercial interests of Great Britain, and from the simplicity and purity of its principles, as contradistinguished from the intricate ramifications of the municipal law consequent upon an artificial and highly refined state of society.

The High Court of Admiralty is, strictly speaking, the Court of the Lord High Admiral of England, the Judge being styled his Lieutenant; but since the office of Lord High Admiral has been in commission, the Judge has been appointed by the Crown, and the process of the Court has issued in the name of the Sovereign.

The Lord High Admiral, by virtue of his office, also appointed under the Great Seal of his Court of Admiralty, his deputies or Vice-Admirals, and their Lieutenants, or Judges, in the principal ports of the kingdom and its dependencies, and these functionaries exercised, within the limits of their several stations, the same jurisdiction as the High Court of Admiralty, to which latter Court, however, until very recently, appeals lay from the decisions of the Vice-Admiralty Courts; but, by the statute 3 & 4 W. 4. c. 41. such appeals now lie to the Judicial Committee of the Sovereign in Council.

The High Court of Admiralty was formerly held at St. Margaret's Hill in Southwark, but its sittings have now for many years taken place in the common hall of Doctors' Commons. The Court is of great antiquity. In the reign of Richard III. it was said to have existed time out of mind†, and several records in the time of Henry III. and Edward I. so speak of it,

* Floyer, Proc. Prac. 15.; Pepys' Diary, vol. ii. p. 17.

† Godolph. Adm. Jur. c. 3. p. 28, et seq.; Wynne's life of Sir Leoline Jenkins, p. 77. ; Co. Lit. p. 260.; 1 Com. Dig. 267.

though, according to Sir Henry Spellman*, Lambard †, and other writers ‡, the Court was first established by Edward III. The rules by which it was governed were the ancient laws, customs, and usages of the seas, including such selections from the laws of Rhodes and Oleron, the Waterrecht of Wisbuy, the Hanseatic Ordinances, the Consolato del Mare, the Marine Ordinance of Louis XIV. and others, as from their natural justice and sound policy obtained generally in the Admiralty Courts of Europe. These, collectively, constituted the general Maritime Law of England, received and administered in the High Court of Admiralty, but modified and controlled from time to time by the Statute Law of the land.

The ancient jurisdiction of this Court comprehended the same subjects as the Consular Courts of the Mediterranean, on the model of which it was framed; a jurisdiction which extended to the cognisance of all maritime contracts or torts, and all injuries or offences committed upon the high seas, in ports and havens, as far as the ebb and flow of the tide, in great rivers beneath the bridges thereof near the sca, (infra primos pontes,) and in all foreign parts. §

This jurisdiction, however, was, and still is, exercised according to the rules and practice of the Roman Civil Law, which, from its universality, and as forming the foundation of the system of jurisprudence established in most of the great nations of Europe, is best adapted to the proceedings of a court administering the Law of Nations, and particularly that branch of it- the law of prize-which affects so extensively the interests of foreign states and their subjects in their relations with British subjects and others.

The readers of English history are, however, well aware of the jealousy and distrust with which the common lawyers and the people generally regarded the Roman Civil Law, from the time of its first adoption into the institutions of the country, and more especially from its connection with the administration of ecclesiastical affairs, and the great power it gave to the priesthood of former days.

Frequent complaints, and loud and angry remonstrances, were made, (probably not altogether without foundation) of the jurisdiction usurped by the Admiralty Courts ; and accordingly, in the reign of Richard II. two statutes were passed T, expressly enacting that the Admirals and their deputies, or Judges, should not thenceforth have jurisdiction over wreck of the sea, or in relation to any matter or thing done within the body of a county, but that all contracts, torts, or injuries there arising, should be tried and determined according to the course of the Common Law. It would seem, however, that even these statutes were scarcely sufficient to remedy the defects complained of; for in the reign of Henry IV. a further and severe statute was passed **, giving to the party aggrieved by proceedings against him in the Admiralty Court, in cases not clearly within the

jurisdiction of that Court, a remedy not only against the plaintiff in those proceedings, but also against the Judge and officers of the Court, by action in the Common Law Courts, with double damages.

It appears that down to the time of the Commonwealth these statutes were not so interpreted by the Court of Admiralty as to lead to its acquiescing in any abridgment of its ancient jurisdiction, but it continued to assert its right to the cognisance of all maritime contracts, torts, &c. on the high seas, and as far as the tide ebbs and flows. This indeed appears to be the true limit within which, according to principle, analogy, and public convenience, the Admiralty jurisdiction was intended to be confined by the statutes referred to; and accordingly the Court of Admiralty (besides its criminal jurisdiction, which will be presently adverted to, and the authority it possessed in the government of the Royal Navy,) appears at this time to have still exercised jurisdiction over all contracts of freight, bottomry, and mariners' wages; all charter-parties (save as to the penalties in the latter); all contracts for the building of ships, or for repairs, or supplies thereto; all cases of wreck at sea, jetsam, flotsam, lagan, or derelict; all matters relating to the office and duties of naval officers, mariners, and pilots, and connected with ship-owners; all questions of salvage and average, of possession of, and title to ships generally, and of the right to royal fish; all cases of damage by collision or other injuries affecting navigation; and all obstructions to navigation to and from the sea in the great rivers (infra primos pontes).†

Great endeavours, however, appear to have been made by the authorities of the Common Law Courts to strain the interpretation of these statutes to the extent of confining the Admiralty jurisdiction to matters done wholly and exclusively upon the high seas; and, at the Restoration, the jealousy of the common lawyers caused attempts to be made to oust the Admiralty jurisdiction, even in cases of bottomry and the recovery of mariners' wages, upon the ground that the contracts in such cases were made upon land, though in substance performed upon the high seas; and some few cases are to be found in which prohibitions from the Common Law Courts to the Court of Admiralty were awarded, as also in cases of security taken in the Admiralty by the minor against the major part-owners for the safe return of their ships from voyages of which the former disapproved‡; but the manifest injustice of such a construction of the statutes, and the great advantages of such subjects being left to the cognisance of the Court of Admiralty, ultimately prevailed, and its jurisdiction over them was fully established, except as to mariners' wages, in cases of special

contracts.

*

The adjudication, however, of questions of freight, charter-parties, and

By a recent statute, however (3 & 4 Vict. c. 65.), the same privileges and protection as are possessed by the Judges of the superior Courts of Common Law are allowed to the Judge of the Court of Admiralty.

† See Godolphin, Adm. Jur. cap. iv. p. 45, et seq., and cap. viii. p. 91, et seq. and the resolutions upon the jurisdiction of the Admiralty of King Charles I. in council, subscribed by all the judges, 18th Feb. 1632.

Abb. Sh. 101. n.