CHAPTER VI.

The strife between the Common Law Courts, and the Admiralty, in the 16th and 17th Centuries.

§ 74. Up to this period the strife between the two jurisdictions was a less hostile rivalry than at a later period, when the Admiralty Court was the subject of much irrational jealousy and strong controversy; and in the 16th and 17th centuries suffered much from the violence of this jealousy. Jealousy, says Edwards, is perhaps a mild word to apply to the passion with which the Superior Courts took up this question, for there appears to have been more greediness than emulation at the bottom of it. It was, says Prynne, for more jurisdiction, for gain, not for the public good, but that one jurisdiction might swallow up the other. It is to be regretted that to no less illustrious a personage than Lord Coke, is to be ascribed the origin of this jealousy; and that being the case, it is not wonderful that others should, from subserviency to the opinion of so great a man, have followed in the same track, or even have gone beyond it. Matters raged so high, that a war was declared between the two courts. Prohibitions were hurled from Westminster Hall, and without much order; serving, therefore, more to irritate than to subdue the Admiralty Court, which, though powerless and without the means of attack, obstinately held out for its ancient and time honored privileges. (a)

§ 75. In 1575, in the reign of Elizabeth, the judges of the Admiralty and the Common Law judges, before the controversy had assumed that angry character which it afterwards exhibited, entered into an agreement on the subject of prohibitions. To this agreement, the Queen does not appear to have been in any manner a party, but it indirectly had the effect to keep the peace between the two jurisdictions; as, subsequently, during the reign of Elizabeth, no prohibition appears to have

(a) Edward's Ad. Juris. 17. 3 T. R. 348.

been issued against the Admiralty, except two or three, which are mentioned by Lord Coke in 4th Institutes. The agreement of 1575 is worthy of notice as an evidence that the Common Law Courts claimed a sort of legislative or prerogative power in matters of jurisdiction. They do not appear so much to be deciding principles and declaring the law, as granting requests, consenting to agreements, and making promises. It was indeed so the law was on the side of the Admiralty-the power was in the hands of the Common Law judges.(a)

The agreement of 1575 was as follows:

The Request of the Judge of the Admiralty to the Lord Chief Justice of her Majesty's Bench and his Colleagues, and The Judges' Agreement, the 7th of May, 1575.

REQUEST.

76. That after judgment or sentence definitive given in the Court of the Admiralty in any cause and appeal made from the same to the High Court of Chancery; that it may please them to forbear granting of any writ of prohibition, either to the judge of the said court, or to Her Majesty's delegates, at the suit of him by whom such appeal shall be made, seeing by choice of remedy that way, in reason he ought to be contented therewith, and not to be relieved any other way.

AGREEMENT.

It is agreed by the Lord Chief Justice and his colleagues, that after sentence given by the delegates, no prohibition shall be granted; and yet if there be no sentence, if a prohibition be not sued within the next term following sentence in the Admiral Court, or within two terms next after, at the farthest, no prohibition shall pass to the delegates.

REQUEST.

§77. Also, that prohibitions be not granted hereafter upon bare suggestions or surmises, without summary examination and proof made thereof, wherein it may be lawful to the Judge of the Admiralty and the party defendant, by the favor of the

(a) Hall's Ad. Intro. x. Prynne, 98. Edw. Ad. 21.

court, to have counsel, and to plead for the stay thereof, if there shall appear cause.

AGREEMENT.

They have agreed, that the Judge of the Admiralty and the party defendant shall have counsel in court, and plead the stay, if there may appear evident cause.

REQUEST.

78. That the Judge of the Admiralty, according to such ancient order as hath been taken 2 Ed. I., by the king and his council, and according to the letters patents of the Lord Admiral for the time being, and allowed of by other kings of this land ever since, and by custom, time out of memory of man, may have and enjoy the cognition of all contracts, and other things arising as well beyond as upon the sea, without any let, or prohibition.

AGREEMENT.

This is agreed upon by the said Lord Chief Justice and his colleagues.

REQUEST.

79. That the said Judge may have and enjoy the knowledge and breach of charter-parties made between masters of shipsand merchants, for voyages to be made to the parts beyond the seas, and to be performed upon, and beyond the sea, according as it hath been accustomed, time out of mind, and according to the good meaning of the statute of 32 H. VIII. c. 14, though the same charter-parties happen to be made within the Realm.

AGREEMENT.

This is likewise agreed upon, for things to be performed either upon, or beyond the seas, though the charter-party be made upon the land, by the statute of 32 H. VIII. c. 14.

REQUEST.

80. That writs of corpus cum causa be not directed to the said Judge in causes of the nature aforesaid; and if any happen to be directed, that it may please them to accept the return

thereof, with the cause, and not the body, as it hath always been accustomed.

AGREEMENT.

If any writ of this nature be directed in the causes before specified, they are content to return the bodies again to the Lord Admiral's goal, upon certificate made of the cause to be such, or if it be for contempt, or disobedience done to the court in any such cause.

81. The Admiralty jurisdiction, at that time, appears to have extended to all cases of freight, charter parties, bottomry, mari. ners wages, debts due to material men for the building and repairing of ships, and generally to all maritime contracts. When, however, the Queen was dead, as well as most of those who were parties to the agreement, and reference was made to it, Lord Coke denied its authority, because, as he said, the paper from which it was read to him, was not subscribed with the hand of any judge, and, on his own responsibility, he declared that the judges of the King's Bench had never assented to it-and prohibitions were granted by him more than ever before. The learned doctors of the Admiralty, however, still endeavored to convince the higher powers, that their jurisdiction had no temptation to encroachment; and that, without wishing to enlarge the limits of their courts, they were only actuated by a love of justice and respect for their native dignities; but their outcries were little listened to by their rapacious invaders. The practisers in the Admiralty were not the only sufferers from this useless conflict. The merchants -the people-called loudly for a cessation of hostilities, and the Crown was appealed to in 1611, when the agreement of 1575 was read before the King, James I., as an agreement to which the judges of the common law and the Admiralty were parties. At that time a specification of grievances was submitted to the King by the Lord High Admiral, and the Judge of the Admiralty. His Majesty ordered Dr. Dunn, the Judge of the Admiralty, to arrange the matters of complaint in specific articles, and, it seems, to submit them to the common law judges, to be answered by them; and they are said, by Lord Coke, to have made the answers which he gives, and which breath his impe

rious spirit. The irresolute James does not appear to have made any order in the premises, but to have allowed the agreement of 1575 and the Court of Admiralty, to defend themselves as they best could, and Lord Coke triumphed. (a)

This list of grievances is known as Articuli Admiralitatis. They are as follows, with the caption of Lord Coke:

Articuli Admiralitatis.

82. The complaint of the Lord Admiral of England to the Kings most Excellent Majesty against the Judges of the Realm, concerning Prohibitions granted to the Court of the Admiralty 11 die Febr. ultimo die Termini Hillarii, Anno 8 Juc. Regis: The effect of which complaint was after by his Majesties commandment set down in Articles by Doctor Dun, Judge of the Admiralty; which are as followeth, with answers to the same by the Judges of the Realm: which they afterwards confirmed by three kinds of Authorities in Law. 1. By Acts of Parliament. 2. By Judgments and judicial proceedings: and lastly, by Book cases.(b)

Certain Grievances, whereof the Lord Admiral and his Officers of the Admiralty do especially complain, and desire redress.

83. 1st Objection. That whereas the conusance of all contracts and other things done upon the sea belongeth to the Admiral jurisdiction, the same are made triable at the common law, by supposing the same to have been done in Cheapside, or such places.

The Answer. By the laws of this realm the Court of the Admiral hath no conusance, power or jurisdiction of any manner of contract, plea or querele within any county of the realm, either upon the land or the water: but every such contract, plea or querele, and all other things rising within any county of the realm, either upon the land or the water, and also wreck of the sea ought to be tried, determined, discussed and remedied by the laws of the land, and not before, or by the Admiral nor his Lieutenant in any manner. So as it is not material whether

(a) Hall's Ad. Intro. x. Prynne, 99. Edward's Ad. 20. (b) Zouch Intro. 4 Inst. 134.

Hall's Ad. Intro. xxii