CHAPTER IV.

ON VICE-ADMIRALTY JURISDICTION AND PIRACY.

(1.) Letter from J. A. STAINSBY, ESQ., to SIR JAMES MARRIOTT, King's Advocate (1).

Ever since I saw you I have been very busy in ransacking our authors who have wrote upon the origin and constitutions of our law, to trace (if possible) those of the Admiralty, to throw a light upon the question raised of precedence between an Attorney General and the King's Advocate in the islands; but can meet with nothing satisfactory, except that it is clear that though the name of Admiral is not met with till after the Crusades commenced, yet the office was in effect among the Romans, and voluntarily adopted by the Saxons, and that his power was upon the altum mare only. But the commissions for 150 years after the Romans being all lost, it is no wonder we are in the dark: but it is said in Co. Littleton, 260, that the Admiral and Court of Admiralty in Richard I.'s time was said to have been out of mind, which must mean the office only, but not the name, as is clear from the latter being of Saracen extraction (Enur, d, i. e., great or high lord), and brought in by Edward I. on his return from the Holy Land; and the title of Admiral of the King's Seas occurs in 1386, and in 4th Inst. 134, that it was generally held to have been created by Edward III., I think probably by Edward I., as I find by Acta Regia that the famous civilian Accursino, professor at Bologna, was in his service and confidence, and had a pension from him; but the constitution of it does not appear, only the title of the index. Perhaps the argument of Sir Leoline Jenkyns (who was judge of that court) before the House of Lords in Charles II.'s (1) From a M. S. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott, King's Advocate. No date.

time, upon the statute 13 Richard 2, c. 5, made to keep it in due bounds, would throw light upon the subject. The clearest account I have met with is in Spelman's Glossary, p. 14; in Bacon on Government, part ii. p. 26; and in Mr. Solder's Notes on Fortescue de laudibus legum Angliæ, p. 69, to the above purport, and which is introduced by a modern writer (Schomberg) on the Maritime Laws of Rhodes, who informs us of the constitution of the French and Holland Courts of Admiralty, but not of ours.

As to the King's Attorney, it appears there was an officer under that name in the year 1279, 7 Edward I., and continued under that style for near 200 years, when, in 1462, in 1 Edward IV., a Solicitor General was appointed, and the Attorney had the additional term of General annexed to his office, which both continue to this day.

J. A. STAINSBY.

(2.) OPINION of the King's Advocate, SIR JOHN COOKE, on the Jurisdiction of the Court of Admiralty in the Colonies. 1702.

Ships trading contrary to the Act of Navigation (12 Car. II. c. 18) are to be prosecuted, and the penalties arising thereon to be recovered in any Court of Record: the words of the Act are general, without a particular mention of England, or of the plantations, and include the Admiralty Courts of both places, they being the King's courts, and consequently Courts of Record.

Ships trading contrary to the Act for Encouragement of Trade (15 Car. II. c. 7) are to be prosecuted, and the penalties arising thereon to be recovered in any of his Majesty's courts in the plantations, or in any Court of Record in England; and it is certain that the Admiralty Court is the King's Court, and was so allowed to be by all the judges under their hands, anno 1632. In the eleventh paragraph of the statute, for preventing planting tobacco in England, and for regulating the plantation trade (22 & 23 Car. II. c. 26), it is said that, upon unlawful importations to, or exportations from the plantations, one moiety of the several ships, and of their ladings, shall go to the King, the other to him who shall seize and sue for the same, in

any of the said plantations, in the Court of the High Admiral of England, or of any of his Vice-Admirals, or in any Court of Record in England-by which the jurisdiction of the High Court of Admiralty is plainly founded, as is likewise that of the Admiralty Courts in the plantations, which, in respect to the Admiralty of England, are Vice-Admiralty Courts; and it is observable, that both the Admiralty Courts are mentioned before the Common Law Courts, as being principally intended by the makers of that statute for such proceedings; and it is further evident by the same clause, and the two which follow in that statute, that the Admiralty jurisdiction is not so confined, but that it may hold cognizance of, and determine the offences, though the goods are valued, and seised, on land.

The three statutes above-mentioned,-viz., the 12th 15th, 22nd, & 23rd of King Charles II.—are recited in the Preamble of the last Act, relating to the plantation trade (7 & 8 Will. 3), and that last Act does sufficiently establish the Admiralty jurisdiction, in offences against the Acts of Trade, in as ample a manner, and in the same words, as it doth the jurisdiction of the courts at Westminster Hall; and if it be objected that in those two places, it is only said that the proceedings for the penalties and forfeitures arising from the offences, and not for the offences themselves, shall be had in the Courts of Admiralty, it may be answered, that the courts of Westminster have no more or other jurisdictions, for they are mentioned in the same manner as the Admiralty Courts, and not otherwise however, the offence and the penalty is all one cause, and of the same cognizance, and are determined all at once; for to suppose otherwise, were to make one court put in execution the decree and sentence of another, which were absurd and impracticable.

Against the jurisdiction of the Admiralty Courts in the plantations, thus deduced and asserted, there is a seeming objection, from a clause of the aforesaid statute, 7th and 8th Gulielmo III., where it is declared, that upon all suits brought in the plantations, on offences against the several Acts, relating to the plantation trade, by reason of any unlawful importations, orexportations, there shall not be any jury but of natives of England, Ireland, or the plantations, from whence it may be argued, because Admi

ralty Courts use no juries, they are not proper courts to try such

matters in.

To which objection it may, among other things, be answered, that this clause does not in the least take away the jurisdiction, which not only the same Act, but several former Acts of Trade, have given to the Admiralty Courts in the plantations, in cases of unlawful importations and exportations; for the directing the nature and manner of proceeding in one court, when two have the cognizance of the same matters, can, in no construction, take away the power of the other; but from that clause this conclusion, I conceive, may be truly and fairly drawn-viz., that none of the common law courts in the plantations should proceed in such cases but where proper jurymen may be had, so that natives of any other places but England and Ireland and the plantations, or natives even of those places who are any way interested, or who are on any other account not legally qualified, cannot serve on juries, and consequently no such trials can be had in those courts in the plantations where proper jurymen cannot be had; and in such cases the Admiralty Court, as it is always a proper court, will be then the only court to proceed in, and determine breaches of the Acts of Trade.

July 23, 1702.

J. COOKE.

(3.) OPINION of the King's Advocate, SIR JOHN COOKE, on the seizure of a Spanish Brigantine, on the High Seas, by an Uncommissioned Vessel. 1708.

MY LORDS,-In obedience to your Lordships' commands, in Mr. Popple's letter of the 25th of February, I have considered the proceedings and merits of the seizure of the Spanish brigantine therein mentioned, and am of opinion that this matter ought to be communicated to the Lord High Admiral, that directions may issue to the proper officers to proceed, in his Lordship's name, in the Court of Admiralty here, in order to have the brigantine condemned, and declared a perquisite of the Admiralty, being seized at sea by a non-commissioned ship.

Doctors' Commons, March 3, 1708.

J. COOKE.

(4.) OPINION of MR. FANE, Counsel to the Board of Trade,

on the Admiralty Jurisdiction in the Bahamas. 1729.

To the Right Honourable the Lords Commissioners for Trade and Plantations.

MY LORDS,-In obedience to your Lordships' commands, signified to me by Mr. Popple's letter of the 6th of this instant (May) wherein your Lordships are pleased to desire my opinion, in point of law, whether the rights of Admiralty in the Bahama Islands are comprehended within the Lords Proprietors' surrender? I have considered of the same, and am humbly of opinion, upon perusal of the original charter of the Bahama Islands, granted by King Charles II, that there are no words in that charter which will carry a grant of Admiralty jurisdiction, and the rights and perquisites thereunto belonging, to the Lords Proprietors; and, therefore, the Lords Proprietors, or any lessee under them, could never have any legal title or pretence thereto, under the charter.

May 16, 1729.

FRAN. FANE.

(5.) OPINION of the King's Advocate, SIR CHRISTOPHER ROBINSON, on the Jurisdiction of Vice-Admiralty Courts.

Doctors' Commons, November 20, 1821.

MY LORD,-I am honoured with your Lordship's commands of the 8th instant, transmitting sundry despatches from the Governor of the Mauritius, announcing the intention of Mr. Smith, the Judge of the Vice-Admiralty Court there, to extend the jurisdiction of that court to causes over which it has hitherto assumed no control, and pointing out the inconvenience and dissatisfaction likely to result from such a proceeding.

And your Lordship is pleased to request that I would report to your Lordship my opinion how far the Court of Vice-Admiralty has properly the jurisdiction recited in the notice of the judge, and how far the colonial courts have a concurrent jurisdiction over transactions such as policies of assurance, charterparties, &c., which, although connected with maritime affairs, have not hitherto been the subject of proceedings in any but the colonial courts?

In obedience to your Lordship's commands, I have the honour to