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but is bound by its commission and con- | such treaties as particular states have stitution to determine the cases submitted agreed should be engrafted on that law; to its cognizance upon equitable principles, and it is not competent to one nation to and according to the rules of natural justice. The Juliana, Ogilvie, 2 Dodson, 521. 5. The Court of Admiralty is a court of equity. The Minerva, Bell, 1 Hagg. 357.; The Trident, Simson, 1 W. Rob. 35.

6. The Court of Admiralty exercises a jurisdiction equitable as well as legal. The Harriet, Bulmer, 1 W. Rob. 192. III. OF THE PROCEEDINGS IN THE HIGH COURT OF ADMIRALTY.*

7. The Court of Admiralty is governed by the civil law, the law marine, and the law merchant, unless where controlled by the statute law and the authority of the municipal courts. The Neptune, Cumberlege, 3 Hagg. 136.

8. The rules by which Courts of Admiralty proceed are the law of nations, and

add to the law of nations by its own arbitrary ordinances without the concurrence of other nations. Pollard v. Bell, 8 T. R. 434., 2 Park on Ins. 731.

9. Where the libel in the Admiralty was against the ship and the party, the Court of Queen's Bench granted a prohibition as to the party, except so far as it was necessary to make him a party to the condemnation of the ship. Johnson v. Shepney. 6 Mod. 79., 14 Viner's Abr. 300. See PRACTICE.

IV. OF THE JURISDICTION OF THE HIGH COURT OF ADMIRALTY OF ENGLAND. 1. Generally.+

10. Whether the Court of Admiralty has or has not jurisdiction depends upon the

4. The Court of Admiralty proceeds according to the course of the civil law. 12 Co. 104., 4 Inst. 135., 13 Rep. 53., 6 Viner's Abridgment, 521, 522., 12 Rep. 104., 2 Chitty's Gen. Practice, 535., and see evidence of Sir Herbert Jenner before the Select Committee of the House of Commons on Admiralty Courts, p. 42. There is, however, much wholly independent of the civil law course of proceeding; and, in particular, the judge of the Court of Admiralty may, as well in civil as criminal cases, have the assistance of a jury. 2 Chitty's Gen. Practice, 535.; and see note to The Ruckers, 4 C. Rob. 74.

5. The proceedings of the Courts of Admiralty bear much resemblance to those of the civil law, but are not entirely founded thereon. They like. wise adopt and make use of other laws as occasion requires, such as the Rhodian laws and the laws of Oleron, for the law of England does not acknowledge or pay any deference to the civil law, considered as such, but merely permits its use in such cases where it judges its determinations equitable, and therefore blends it with other marine laws, the whole being corrected, altered, and amended by acts of parliament and common usage: so that out of this composition a body of jurisprudence is extracted, which owes its authority only to its reception here by consent of the Crown and people. 3 Stephens' Black. Comm. 726.

6. The Court of Admiralty has power to convene and have the assistance of two or more naval and other personages to assist its judgment. 2 Chitty's Gen. Practice, 510. See TRINITY MASTERS.

7. The first process in the Admiralty is against the ship and goods. Godb. 260. And no other process can be executed on the water. Sir L. Jen. vol. i. 82.

8. The first process in the Court of Admiralty is frequently by arrest of the defendant's person, as in the instance of a sea battery, upon which the defendant must find bail, or fide jussors in the nature of bail. (Clerke's Prax. Adm. 11., 1 Rol. Ab. 531.,

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Raym. 78., 2 Ld. Raym. 1216., 3 Black. Comm. 108, 109.) And in case of default the bail and principal may be imprisoned. 1 Rol. Ab. 531., Goab. 193. 260., 3 Black. Comm. 109., 2 Chitty's Gen. Practice, 536.

9. After the execution of process, the defendant shall give caution or security, Godb. 260.; and the caution may bind the heirs, for by the civil law that comprehends his executors or administrators. Godb. 261. If a libel be founded upon a contract registered beyond sea, the plaintiff, upon his oath, exhibits his copy, which the defendant must confess or deny. Sir L. Jen. vol. i. 82. If he confess it, it is so much a proof of the instrument that the Court will judge upon the contents. Ibid, and 1 Com. Dig. 275.

10. To the libel the defendant ought to make answer. He may plead matter for his discharge, which will be good by law; and if it be refused, or determined contrary to a statute, a prohibition shall go; as the Statute of Limitations. Hard. 502.

† 11. A sentence in the Admiralty will be final; and the property of a ship taken upon the sea, after a determination there, shall not be tried in trover. R. 3 Mod. 194. Vide Sho. 6., Carth. 32., Skin. 59., Raym. 473. So, after a sentence there, it shall not be examined here in equity. 1 Ver. 21. Ca. Ch. 237, 238.

12. The Court of Admiralty has jurisdiction to try and determine most maritime causes or suits for private injuries which, although had the same transaction occurred on shore, would, in their nature, have been of common law cognizance, yet, having been either committed on the high seas, or connected with maritime transactions, are therefore considered better to be examined and remedied in this peculiar Court; which, from its very constitution and practice, is better informed upon nautical subjects than any common law Court, especially as it has power to convene and have the assistance of two or more naval and other personages to assist its judgment. 2 Chitty's Gen. Practice, 510.

subject-matter. Menetone v. Gibbons, 3 T. | Prize are all liable to the controlling auR. 267.

11. Wherever the Admiralty has not original jurisdiction of the cause, though there arise a question in it proper for its cognizance, yet that alters not nor takes away the power of the common law. If, however, the Admiralty have jurisdiction over the cause, it shall have jurisdiction over the incidents, though a question arise proper for the common law. After sentence, if it appear that the matter contained in the libel is triable at law, prohibition will be granted. Tremoulin v. Sands, (9 W. 3.), Comb. 462, 463., 6 Viner's Abr. 516.*

12. In a case relating to the jurisdiction of the Court of Admiralty on a deed of hypothecation of a ship by the master: Held, in the Queen's Bench, that if the Court of Admiralty have jurisdiction over the subject-matter, the circumstance of the instrument being under seal does not deprive the Admiralty of its jurisdiction. Menetone v. Gibbons (1789), 3 T. R. 267. 13. Where the Court of Admiralty has given a sentence, it shall be taken to have

thority which the Courts of Westminster Hall have from time to time exercised for the purpose of preventing them from exceeding the jurisdiction given to them; the general ground of prohibition being an excess of jurisdiction, when they assume to act in matters not within their cognizance. Grant v. Gould, 2 H. Black. 69. 100.

19. All maritime nations have that common interest in preserving the safe navigation of the seas that will authorize their respective Courts of Admiralty to entertain occasionally questions relating to the acts and interests of foreigners, under circumstances bringing the case within their local jurisdiction, and more particularly in a case in which individuals of the adjudicating country may be parties. The Calypso, 2 Hagg. 212.

20. Where both the parties in a suit are foreigners, the important consideration which regulates the jurisdiction of the Court, is whether the case be communis juris or not. The Johann Friederich, 1 W. Rob. 38.

had jurisdiction, unless the contrary appear 2. With reference to the locality of the cause

on the face of the sentence. Crickett (1788), 2 T. R. 649.

Ladbroke v.

14. If the Admiralty have no jurisdiction over the subject-matter, the whole is coram non judice. Ibid. 653.

15. And the sentence being a nullity, is at any time impugnable. Menetone v. Gibbons (1789), 3 T. R. 269.

16. The jurisdiction of the Admiralty subsists as long as the shore is covered with water. Regina v. The Pauline, 9 Jur. 286., 2 W. Rob. 363.

17. By the ancient maritime law the Court of Admiralty has an equity to moderate or supersede extortionate contracts made under the pressure of necessity arising out of the situation of a vessel at

sea.

This jurisdiction might embrace a case of extortionate contract for pilotage services. The Nelson, Main, 6 C. Rob. 231. 18. Courts of Admiralty and Courts of

of action.

21. By 13 Rich. 2. c. 5. it is accorded and assented that the Admirals and their deputies shall not meddle from thenceforth of any thing done within the realm, but only of a thing done upon the sea, as it hath been used in the time of King Edward (grandfather of Richard 2.).

22. By 15 Rich. 2. c. 3. it is declared and established that of all manner of contracts, pleas, and quarrels, and all other things arising within the bodies of 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 the same and all other things arising within the bodies of counties as well by land as by water, as aforesaid, and also wreck of the sea, shall be tried and determined by the laws of the land, and

13. If part of any contract or other cause of action arise upon the sea and part on the land, the common law excludes the Admiralty Court from its jurisdiction; for, part belonging properly to one cognizance, and part to another, the common or general law takes place of the particular. 3 Stephens' Black. Comm. 725.

14. In general the Court of Admiralty has no jurisdiction over ordinary contracts, as in case of a

bond executed on ship board to pay money in London, nor, in general, in any case of a sealed instrument. Bottomry bonds, and other instruments of hypothecation, constitute exceptions. 2 Chitty's Gen. Practice, 533.

* 15. Where the Admiralty has cognizance of the principal cause, it shall have jurisdiction over the incidents. 2 Sand. 260., 1 Vent. 173, 174. 308., 2 Lev. 25., Cro. El. 685.

not by the Admiral nor his lieutenant in any wise.*

23. By 3 & 4 Vict. c. 65. s. 6. it is enacted that the High Court of Admiralty shall have jurisdiction to decide all claims of salvage, damage, or towage, relating to any ship or sea-going vessel, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce payment thereof, whether such ship or vessel may have been within the body of a county or on the high seas, at the time when the cause of action accrued. +

the precincts of any county, either by land or by water; nor of any wreck of the sea, for that must be cast upon land before it becomes wreck; but over things flotsam, jetsam, and ligan, the Admiralty hath jurisdiction, as being in and upon the sea. The King v. Forty-nine Casks of Brandy, 3 Hagg. 282.

26. The Court of Admiralty hath no jurisdiction of any contract within any county on land or water, so that it is not material whether the place be upon the water inter fluxum et refluxum aquæ, but whether it be upon any water within any county. The King v. Forty-nine Casks of Brandy, 3 Hagg. 283.; but see 3 Inst. 113.‡

24. By 9 & 10 Vict. c. 99. s. 40. the High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever, in the nature of salvage, to ships or goods, or to articles found at sea 3. With reference to the execution of sentences

or on shore, whether such services shall

have been performed at sea or within the body of any county.

25. Admiralty causes must be causes arising wholly upon the sea, and not within

⚫ 16. This statute is recognised and enforced by 2 Hen. 4. c. 11., which gives damages against parties so proceeding in the Admiralty.

17. With reference to the ancient construction of the statutes 13 Rich. 2. c. 5. and 15 Rich. 2. c. 3., sce Godolphin's Admiral Jurisdiction, cap. XII. p. 141. et seq.

18. It was said that the words in the statute 15 Rich. 2. c. 3. (infra primos pontes), ought to be construed between the first points, viz. the Land's End; for where a man can see from the one side of the water to the other, it is infra corpus comitatûs. Ow. 122, 123., semb. 4., Inst. 135-140, 141., Mo. 892.

† 19. In the following cases, occurring prior to the 3 & 4 Vict. c. 65., it was held that the Court of Admiralty had not jurisdiction, by reason that the cause of action in each case had arisen within the body of a county: The Eleanor, Robertson, 6 C. Rob. 39.; The Public Opinion, Ackland, 2 Hagg. 398.; The Eliza Jane, Findlay, 3 Hagg. 335.

20. Prohibition lies to the Court of Admiralty if the libel there be upon a contract, plea, or complaint made by water, or by land, within any county of the kingdom. 4 Inst. 134, 135., 1 Rol. 531. 1. 32. 532. L. 35., 2 Brownl. 37., 1 Lev. 106, 107., Ow.123., 1 Com. Dig. 276.; and see Ross v. Walker, 2 Wils.

264.

21. The Court of Admiralty cannot hold plea of any matter done upon the Thames, because it is infra corpus comitatus. 4 Inst. 139, 1 Rol. 531. 1.35., Mo. 916., 6 Viner's Abr. 524.; and see The Eleanor, Robertson, 6 C. Rob. 39.

22. Prohibition lies to the Court of Admiralty in any suit there arising within any port or haven; for though it be within the flux and reflux of the sea, and below the first bridges, yet the port or haven is within the body of a county. 4 Inst. 138. 141., 2 Cro. 574., Mo. 892., 2 Rol. 49., 1 Com. Dig. 276. Or if the suit arise in any coast, shore, or harbour. Mo. 892.

23. The Court of Admiralty has jurisdiction in the case of a ship taken upon the sea being stranded

of courts of admiralty abroad.§

See antè, Nos. 1, 2, 3.; COURTS, cap. II.; EVIDENCE, cap. II. sect. 6.

or damaged in the haven. 1 Sid. 367., 1 Lev. 243., 1 Com. Dig. 277, 278.

24. All havens are within the body of a county, and therefore not within the jurisdiction of the Admiralty, Godb. 261.; but all the land upon which the sea flows and reflows is within the jurisdiction of the Admiralty. Mo. 122. in pl. 265. (25 Eliz.) All rivers are within counties. 4 Inst. 137. All the ports within England are infra corpus comitatús. 23 H. 6. and 30 H. 6., Holland's case. Godb. 261., 6 Viner's Abr. 521.

25. Prohibition lies to the Admiralty in any suit there on an indenture, bond, or specialty, or other matter made or done upon land in partibus transmarinis. Hob. 11. 79., 4 Inst. 134. 139., 1 Rol. 528. l. 50., 529. l. 22., 531. l. 25. 30. 45., Cro. Car. 603. (but see contrà, Cro. Car. 296. and 3 Lev.232. ), 2 Brownl. 10. 16. 37., 12 Co. 104., Dub. 2 Rol. 493. 497., Sir L. Jen. vol. i. 79.

26. The coast is properly not the sea, but the land which bounds the sea: it is the limit of the land jurisdiction. This limit, however, varies according to the state of the tide. When the tide is in and covers the land it is sea; when the tide is out it is land as far as low-water mark. Between high and low water mark it must, therefore, be considered as divisum imperium, unless the water be within a county. The King v. Forty-nine Casks of Brandy, 3 Hagg. 275-283.

§ 27. If there be a suit in the Admiralty to execute a sentence in a foreign court (not final) a prohibition goes. 1 Sid. 418., 1 Lev. 267., 1 Vent.32.

28. A sentence of the Admiralty in partibus transmarinis may be executed by the Admiralty here, upon the receipt of letters missive for that purpose. 1 Rol. 530. l. 5., 1 Vent. 32., 1 Sid. 320., 1 Lev. 267. Though the sentence of the Admiralty in partibus transmarinis executed here was for a matter upon land, yet a prohibition does not go to the Admiralty here, which executes such sentence, if nothing further is done. Semb. 1 Lev. 267. the Court will give credit to the sentence there. Ray. 473., vide Skin. 59. Semble, therefore, that

For

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28. Where a ship was seized by Admiralty process and decreed to be sold to satisfy the plaintiff's demand, and no appeal was made from that sentence, but between the seizure and the decree a writ of execution issued against the owner at the suit of another creditor : Held, that the sheriff could not take the vessel under this writ, nor maintain trover against the officer in possession by the warrant of the Court of Admiralty. Ladbroke v. Crickett, 2 T. R. 649.; and see Buggin v. Bennett, 4 Burr. 2035.; S. P. Blacquiere v. Hawkins, 1 Dougl. 378.

29. A rule nisi for the Marshal of the Admiralty or his deputy to pay over to the Sheriff certain proceeds of sale of a ship sold under a decree of the High Court of Admiralty, whilst in possession of the Sheriff under a fi. fa. for satisfaction of a judgment debt, discharged. The Flora, Findlay, 1 Hagg. 300.

30. By 3 & 4 Vict. c. 65. s. 20., gaolers are to receive and take into custody all prisoners committed by the Court of Admiralty, or by any coroner appointed by any Judge of that Court, and are liable to the usual penalties and consequences for

escapes.

(b) In cases of rescue.

31. If a ship be arrested by process out of the Court of Admiralty, for a matter

if a foreign Admiralty adjudge a ship to be a prize, and after a sale here upon land, there be a suit for an account, a prohibition shall not go; for it is only an execution of the sentence which adjudged it to be a prize. 1 Sulk. 32.

29. On the ancient practice of letters of request, and on the execution in this country of a sentence of a civil law court in a foreign realm, see Sir L. Jen., vol. ii. pp. 762. 788., also Lord Holt's observations in Green v. Walker, 2 Ld. Raym. 893., and Ewer v. Jones, ibid. 935.

* 30. Execution in the Admiralty may be against the person of the defendant, Godb. 261.; and he may be taken upon it in any county in England. Skin. 93.

31. But execution out of the Admiralty shall not be against the lands of the defendant. Godb. 261. 32. If a person taken in execution upon a sentence of the Admiralty bring an habeas corpus, he hall not be discharged, if the cause do not appear

arising within their jurisdiction, though she be rescued at land, the conusance of the rescue belongs to the Admiralty, otherwise not. Rigden v. Hedges (1697), 1 Ld. Raym. 446., 1 Vent. 1., Sti. 171., 6 Viner's Abr. 536.

32. And the Court of Admiralty may reseize her on land and out of their jurisdiction, and no prohibition lies. Ibid., and 12 Mod. 246.

See antè, notes 7, 8, 9.;
ATTACHMENT, cap. II. and
V.; CONTEMPT.

5. To direct issues and new trials.

33. By 3 & 4 Vict. c. 65. s. 11. power is given to the Judge of the Court of Admiralty to direct issues on any questions of fact to be tried in the superior Courts of Common Law at Nisi Prius.

34. By the 12th section the costs of such issues are directed to be taxed and enforced like costs in the Court of Admiralty.

35. By the 13th section, powers are given to the Judge of the Court of Admiralty to direct new trials on any such issues, and to award the costs of such new trials, or of the applications for the same, as he shall think fit.

36. By the 14th section, the granting or refusing such new trials may be matter of appeal to the Queen in Council.

37. By the 15th section, the usual rights, powers, and remedies with respect to bills of exceptions to the trials of such issues are to be allowed to either party, and such bill of exceptions, under seal of the Judge to whom the same shall have been made, shall be annexed to the record of the trial of such issue.

38. By the 16th section, the record of

out of their jurisdiction, though irregular, for he ought to have made an appeal. Sti. 129.

33. Where a vessel was under arrest in the Court of Admiralty in a cause of Bottomry, and a distress was levied by magistrates at the suit of the seamen for wages, under 7 & 8 Vict. c. 112. s. 15., by authority of which, notwithstanding notice from the officer in possession, the tackle, apparel, and furniture were sold, the Court granted a monition against the auctioneer, to show cause why an attachment should not issue against him for removing the same, who thereupon restored them. The Westmoreland, 4 Notes of Cases, 173.

34. It is the duty of all parties who are in possession of a ship under the authority of the Court of Admiralty to give the earliest intimation to the Court of any attempt at an infringement of its authority. The Court will always hear a motion where its authority is attempted to be evaded. Ibid.

such issue is to be transmitted to the Registrar of the Court of Admiralty, and (unless set aside) is to be conclusive of the fact as to which such issue was directed.

39. Issue directed under 3 & 4 Vict. e. 65., to try the existence of a custom set up in bar to a suit for salvage rendered by one whaling vessel to another while engaged in the South Sea fishery. The custom having been found for, motion for new trial refused, but without costs. The Harriot, Soutrice, 1 W. Rob. 429.

6. With reference to Vice-Admiralty Courts.

40. Where a Vice-Admiralty Court has been abolished, the High Court of Admiralty has, in a variety of instances, to prevent a failure of justice, felt itself authorized, upon its general jurisdiction, which extends universally over the King's dominions, to adjudicate upon transactions pending before, but not determined by, such ViceAdmiralty Court. The Prima Vera, Vodonick, Edwards, 24.

41. The High Court of Admiralty has general jurisdiction sufficient to aid the process of the Vice-Admiralty Courts in order to prevent a total failure of justice; and therefore where a Vice-Admiralty Court had been abolished before its sentence could be carried into effect, the court sustained an application to carry it into effect. The Picimento, Garcai, 4 C. Rob. 360.

42. The High Court of Admiralty will look with tenderness on the informalities in the practice of the Vice-Admiralty Courts. Le Louis, Forest, 2 Dodson, 239.

43. By 2 W. 4. c. 51. s. 5., in all cases of proceedings in any Court of Vice-Admiralty abroad, any person aggrieved by the charges of the officers or practitioners thereof, and the allowance thereof by such court as not warranted by the tables of fees therein mentioned, may on a summary application by himself or agent to the High Court of Admiralty have such charges taxed by the authority thereof.

In prize matters- see PRIZE.

35. The appellate jurisdiction of the High Court of Admiralty from Courts of Vice-Admiralty is, by the 3 & 4 W. 4. c. 41., transferred to the Judicial Committee of the Privy Council.

† 36. By 27 Hen. 8. c. 4., and 28 Hen. 8. c. 15., and 39 Geo. 3. c. 37., trials of offences on the high seas, or within the jurisdiction of the Lord High Admiral, are transferred from the jurisdiction of the Court of Admiralty to certain Commissioners to be from time to time appointed for such purposes un

7. Miscellanea.+

44. The proceedings in the Court of Admiralty are according to the course of the civil law, and therefore the Court is not a court of record, and by consequence oannot assess any fine in such case, as judges of a court of record may do. Tomlinson v. Phillips, (2 Jac.) 12 Rep. 104, 6 Viner's Abr. 521. Yet by custom of the Court, they may amerce the defendant for his default at their discretion. The case of the Admiralty (7 Jac.), 13 Rep. 53., 6 Viner's Abr. 522.

45. Fees cannot be sued for in the Admiralty. Clerk v. Lee (1714), 10 Mod.

264.

46. The Court of Admiralty cannot enter into the contracts of general creditors, yet it may be bound to take a judgment on record as a debt. The Flora, Findlay, 1 Hagg. 303.

47. The King's Bench will not prohibit the Court of Admiralty from proceeding on an Order of Council to arrest a ship. Sands v. Exton (1682), 2 Show. 303.; S. C. T. Raym. 488. ; S.C. Skin. 91.

48. The Court of Admiralty will not lend its assistance to carry into effect a contract in direct violation of the Law of Nations. The Carolina, Nordquist, 4 C. Rob. 462.

49. The High Court of Admiralty originally possessed the sole and exclusive criminal jurisdiction over naval officers, but this jurisdiction has been some time transferred by the institution of naval courtsmartial, and it will now therefore be very cautious in determining a question of civil interest, on grounds imputing a criminal misconduct to officers in high situations of naval command, more especially where such asserted misconduct has been investigated and disproved before the proper tribunal. The Ville de Varsovie, 2 Dodson, 317.

VII. VICE-ADMIRALTY COURTS.

1. Of the jurisdiction of —
(a) Generally.

50. By 2 W. 4. c. 51. s. 6., jurisdiction is given to the Courts of Vice-Admiralty

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