that of the civil law, and that causes were determined without the intervention of a jury. Our Anglo-Saxon forefathers ever evinced a tenacious devotion to the principle of trial by jury, and as this feature did not obtain in Equity and Admiralty proceedings, both of these Courts encountered strong opposition. Both encountered the active, unyielding antipathy of Lord Coke. The Equity Court triumphed, but the Admiralty had finally to abandon its ancient jurisdiction. Even the study of the civil law was discountenanced. As early as the middle of the twelfth century King Stephen silenced Vacarius, a distinguished Lombard jurist, who had established a school of civil law at Oxford. In the answer to the third objection, it is put forward that the Admiralty, proceeding by the civil law, is no Court of Record. A Court of Record is one having power to fine and imprison. In Bacon's Abridgement (1) it is laid down that every Court, by having power given to it to fine and imprison, and whose proceedings may be reversed by writ of error or certiorari, is one of record. Why a Court proceeding according to the civil law is not one of record is not quite apparent, and Mr. Justice Story, it is submitted, completely disproves this statement of Lord Coke.

The ordinance of Richard I., at Grimsby (2), in words declares the Admiralty to be of record. And the same writer, in a note on the same page, says that in the Record Office there is a manuscript labelled "Placita in Cur. Admiralitat. 15 R. II," showing it to be a Court of Record at that time. In the same work (3), under the title De Officio Admiralitatis, the language is, " eo quod admirallus et locumtenentes sui sunt de recordo." The Common Law Courts, however, held it was not a Court of Record, and that continued until Parliament intervened, and in 1861 (4), in express terms, declared the Court to be one of record. The application to James I., in 1611, resulted in nothing favorable to the Admiralty jurisdiction. Prohibitions continued to be issued to restrain the Court, and nothing further was done until the time of Charles I., in 1632. Sir Henry Martyn was then the Judge, and he urged before the King and his Council the need of an agreement among the parties concerned as to the limits within which the Common Law Courts would allow the exercise of jurisdiction without interference. An agreement was at length reached. It was read in Council before the King, agreed to, and signed by the lords of Council and the judges. The following is the agreement:

(1) Tit. Courts, D. 2.

(2) 1 Twiss, 67.

(3) 1 Twiss, p. 237.
(4) 24 Vict., c. 10, s. 14.

At Whitehall, 18th of February, 1632.

"This day his Majesty being present in Council, the articles and propositions following for the accommodating and settling of the differences concerning prohibitions, arising between his Majesty's Courts of Westminster, and his Court of Admiralty, were fully debated, and resolved by the Board. And were then likewise upon reading the same as well before the judges of his Highness's said Courts at Westminster as before the judge of his said Court of Admiralty, and his attorney-general, agreed unto and sub-signed by them all in his Majesty's presence, and the transcript thereof ordered to be entered into the register of Council Causes and the original to remain in the Council chest.

"1. If suit shall be commenced in the Court of Admiralty upon contracts made, or other things personally done beyond the seas, or upon the sea, no prohibition is to be awarded.

"2. If suit be before the Admiral for freight, or mariners' wages, or for the breach of charter parties for voyages to be made beyond the sea, though the charter parties happen to be made within the realm, and although the money be payable within the realm, so as the penalty be not demanded, a prohibition is not to be granted; but if suits be for the penalty, or if question be made whether the charter partie were made or not; or whether the plaintiff did release or otherwise discharge the same within the realm, that is to be tried in the King's Courts at Westminster, and not in the King's Court of Admiralty, so that first it be denied upon oath, that a charter partie was made, or a denial upon oath tendered.

"3. If suit shall be in the Court of Admiralty for building, amending, saving or necessary victualling of a ship, against the ship itself, and not against any party by name, but such as for his interest makes himself a party, no prohibition is to be granted, though this be done within the realm.

"4. Likewise the Admiral may inquire of, and redresse all annoyances and obstructions in all navigable rivers, beneath the first bridges, that are any impediments to navigation, or passage to, and from the sea, and also try personal contracts and injuries done there, which concern navigation upon the sea, and no prohibition is to be granted in such cases.

"5. If any be imprisoned, and upon habeas corpus, if any of these be the cause of imprisonment, and that be so certified, the partie shall be remanded."

These resolutions are not printed in the same terms in all the books. As they appear above they are taken from Prynne (1). The second and fourth resolutions are somewhat different as given by Browne (2). The reader will note that these resolutions conceded to the Admiralty a jurisdiction full and ample, and in accordance with its ancient claims, a jurisdiction much larger than was subsequently allowed. Modern legislation, however, meeting the requirements of modern commerce, has granted all the jurisdiction conceded by the resolutions of 1632, and very much in addition. All writers on Admiralty jurisdiction point out that these resolutions were printed in the first and second editions of Croke's reports, but omitted from later editions after his death. The reporter, Sir George Croke, was one of the judges who signed the resolutions. We have the authority of Sir Leoline Jenkins for the statement that the agreement of 1632 "was punctually observed as to the granting or denying prohibitions" till the time of the Commonwealth. And in Cromwell's time these resolutions were in substance re-enacted by an ordinance of parliament in 1648. The following is the ordinance (3):

(1) See Edwards' Ad. p. 23; Benedict Ad. (3 ed.) p. 51.

(2) 2 Browne Civ. and Ad. Law, 1st Am. ed. 78.

"2. If suit be before the Admiral for freight or mariners' wages, or for breach of charter parties, for voyages to be made beyond the seas; though the charter party happen to be made within the realm, so as the penalty be not demanded, or prohibition is not to be granted; but if the suit be for the penalty; or if the question be, whether the charter party were made or not, or whether the plaintiff did release or otherwise discharge the same within the realm; this is to be tried in the King's Courts at Westminster, and not in his Court of Admiralty."

"4. Although of some of those causes arising upon the Thames beneath the first bridge, and divers other rivers beneath the first bridge, the King's Courts have cognizance; yet the Admiralty has jurisdiction there in the points specially mentioned in the statute of 15 Richard II. And also by exposition of equity thereof he may inquire and redress all annoyances and obstructions in these rivers that are any impediment to navigation or passage to or from the sea; and also may try personal contracts or injuries done there, which concern navigation upon sea. And no prohibition is to be granted in such

cases."

Dunlap, in his work on Admiralty, follows Browne, and the latter has copied from Zouch on Admiralty jurisdiction.

(3) This ordinance is taken from Scobell's Collection of Acts, etc., c. 112, p. 147. See also Dunlap Ad. (2 ed.) p. 36; Benedict Ad. (3 ed.) p. 51.

"The Jurisdiction of the Court of Admiralty Settled. "The Lords and Commons assembled in Parliament, finding many inconveniences daily to arise in relation both to the trade of this Kingdom and the commerce with foreign parts, through the uncertainty of jurisdiction in the trial of maritime causes, do ordain, and be it ordained by the authority of Parliament, that the Court of Admiralty shall have cognizance and jurisdiction against the ship or vessel, with the tackle, apparel and furniture thereof; in all causes which concern the repairing, victualling and furnishing provisions for the setting of such ships or vessels to sea; and in all cases of bottomry, and likewise in contracts made beyond the seas concerning shipping or navigation, or damages happening thereon or arising at sea in any voyage; and likewise in all cases of charter-parties, or contracts for freight, bills of lading, mariners' wages, or damages in goods laden on board ships, or other damages done by one ship or vessel to another, or by anchors or want of laying of buoys; except, always, that the said Court of Admiralty shall not hold pleas or admit actions upon any bills of exchange or accounts betwixt merchant and merchant or their factors.

"And be it ordained, that in all and every the matters aforesaid the said Admiralty Court shall and may proceed, and take recognizance in due form, and hear, examine, and finally end, decree, sentence and determine the same according to the laws and customs of the sea, and put the same decrees and sentences in execution, without any let, trouble or impeachment whatsoever, any law, statute or usage to the contrary heretofore made in any wise notwithstanding; saving always and reserving to all and every person and persons that shall find or think themselves aggrieved by any sentence definitive, or decree having the force of a definitive sentence, or importing a damage not to be repaired by the definitive sentence given or interposed in the Court of Admiralty in all or any of the cases aforesaid, their right of appeal in such form as hath heretofore been used from such decrees or sentences in the said Court of Admiralty. "Provided always, and be it further ordained by the authority aforesaid, that from henceforth there shall be three judges always appointed of the said Court, to be nominated from time to time by both Houses of Parliament or such as they shall appoint; and that every of the judges of the said Court for the time being, that shall be present at the giving of any definitive sentence in said Court, shall at the same time or before such sentence given, openly in Court, deliver his reasons in law of such his sentence or of his opinion concerning the same; and shall also openly in Court give

answers and solutions (as far as he may) to such laws, customs, or other matters, as shall have been brought or alleged in Court on that part against whom such sentence or opinion shall be given or declared respectively.

"Provided also, that this ordinance shall continue for three years and no longer."

Although this ordinance at first was intended to last for three years, it was subsesequently made perpetual, but at the restoration in 1660 it was repealed. The use of the Latin language was abolished in the Court by Cromwell, but the following entry in the Admiralty Assignation Book, dated August 1st, 1660, refers to the restoration of Charles II. to the throne, and of the Latin language to the Court: "Primo die mensis Augusti Anno Domini millesimo et sexcentesimo anno scilicet jubileeo non solum lingua Latinæ feliciter restitutæ sed et Illustrissimi principis Caroli secundi a populo suo diu per Proditores depulsi, nunc miranda Dei providentia restaurati, quem Deus optimus Max. diutissime servet incolumem" (1). The Latin language continued from that time in use in the Court till 1733, when it was abolished, and since then the English language has been used.

From time immemorial there has been an Instance Court of Admiralty in Ireland. Since 1782 no prize commission has been given to the judge of that Court. By the Act of Union it is provided that there shall be an Instance Court of Admiralty for the "determination of causes civil and maritime only.”

The Admiralty jurisdiction in Scotland was always large and comprehensive. When Story, J., delivered his judgment in De Lovio v. Boit, nearly eighty years ago, it had cognizance of "all complaints, contracts, offences, pleas, exchanges, assecurations, debts, counts, charter-parties, covenants, and all other writings concerning lading and unlading of ships, freights, hires, money lent upon casualties and hazard at sea, and all other businesses whatsover among sea-farers done at sea, this side sea or beyond sea; the cognition of writs of appeal from other judges, and the causes and actions of reprisal, and letters of mark; and to take stipulations, cognoscions, and insinuations in the books of the Admiralty." And it is claimed by writers of authority that the Vice-Admiralty Courts of the American colonies prior to 1776 possessed and exercised very extensive Admiralty jurisdiction. This is evidenced by the wide powers given to the different judges by their commissions.

(1) Marsden's Ad. Cases, 243.