THE DEVELOPMENT OF ADMIRALTY JURISDICTION AND PRACTICE SINCE 1800 TO 'ROBIE' * G.H.ROBINSON A.B., LL.B., S.J.D. * FROM A PUPIL F.L.WISWALL JR Yorke Prizeman of the University of Cambridge Proctor and Advocate in Admiralty THE DEVELOPMENT OF ADMIRALTY JURISDICTIONA ND PRACTICES INCE I800 AN ENGLISH STUDY WITH AMERICAN COMPARISONS CAMBRIDGE AT THE UNIVERSITY PRESS CAMBRIDGEU NIVERSITY PRESS CambridNgeew, Y orkM,e lbournMea,d riCda,p eT own,S ingapoSraeoP, a ulDoe,l hi CambridUgnei versity Press TheE dinburBguhi ldiCnagm,b ridCgBe2 8 RU,U K Publisihnet dh eU niteSdt atoefsA mericbay C ambridUgnei versPirteys Nse,w Y ork www.cambridge.org Informatointo hni tsi tlwew:w .cambridge.org/9780521077514 © CambridUgnei versPirteys1 s9 70 Thipsu blicaitsi ocinon p yrigShutb.j etcots tatuteoxrcye ption andt ot hep rovisioofrn esl evcaonltl ecltiicveen saignrge ements, nor eproducotfia onnyp armta yt akpel acwei thotuhtew ritten permissoifoC na mbridUgnei versPirteys s. Firsptu blis1h9e7d0 Thidsi gitaplrliyn tveedr si2o0n0 8 A catalogue record for this publication is available from the British Library Library of Congress Catalogue Card Number: 77-108113 ISBN9 78-0-521-07751-4 hardback ISBN9 78-0-521-08p9a9p1e-r3b ack CONTENTS Plate: Common Hall, Doctors' Commons, facing page XXVlll Prefa ce and Acknowledgments vu List of Admiralty Judges IX Abbreviations and Symbols x Table of Statutes xv Table of Cases XVUl INTRODUCTION I I THE ERA OF STOWELL 4 2 THE COURT RESURGENT 40 3 THE FALL OF DOCTORS' COMMONS 75 4 THE GREAT TRANSITION 96 5 THE COURT UNDER COMMON LAWYERS II6 6 THE EVOLUTION OF THE ACTION in rem 155 209 CONCLUSION Bibliography 2 I 3 Index of Subjects 219 lnde:JC of Persons 222 v PREFACE WITH a few subsequent alterations and additions, this work is the Yorke Prize essay originally submitted in 1968, which was in turn largely derived from my doctoral dissertation of the previous year. It is published at the behest of the Faculty Board of Law of the University of Cambridge. I wish to express my sincere appreciation to the following persons who have given me generous assistance in the procurement of books and materials for research : W. A. F. P. Steiner, Esq., and the Staff of the Squire Law Library, Cambridge; K. C. McGuffie, Esq., the Admiralty Registrar and P. V. Gray, Esq., the Admiralty Marshal, for the loan of books and materials from the Admiralty Registry, Royal Courts of Justice; D. V. A. Sankey, Esq., Librarian and Keeper of the Records of the Honourable Society of the Middle Temple, for the loan of books from the Middle Temple Library; C. L. Fisher, Esq., Librarian of the Bar, Probate and Supreme Court Libraries, for the loan of books from the Bar Library and storage rooms, Royal Courts of Justice; The Rt Hon. Sir Jocelyn E. S. Simon, President of the Probate, Divorce and Admiralty Division of the High Court of Justice and B. H. Erhard, Esq., the President's Clerk, for the loan of books from the President's Room, Royal Courts of Justice; The late K. H. Drake, Esq., Secretary of the Selden Society, for access to books in the Library of the Institute of Advanced Legal Studies, London; The Hon. E.T. Gignoux, United States District Judge for Maine and the Maine Historical Society, for references and duplicated materials; The Staff of the Library of the United States Court of Appeals for the Second Judicial Circuit, New York, for access to books and materials; M. J. Prichard, Esq., of Gonville and Caius College, Cambridge and D. E. C. Yale, Esq., of Christ's College, Cambridge, for the loan of books and duplicated materials; Lord McNair, Q.C., for the loan of a book; and The Fellows of Doctors' Commons, who, though having long since departed this life, once assembled the great Library of the College of Advocates, many of the remnants of which have been of valued use to me. vii viii PREFACE I wish also to give my particular thanks to the following persons: M. J. Prichard, Esq., for his guidance and generous assistance; The Rt Hon. Lord Gardiner, Lord High Chancellor, K. C. McGuffie, Esq., Admiralty Registrar, and L. Bell, Esq., Assistant Keeper of the Public Record Office, for providing information cited in the body of this work; Professor G. R. Elton, M. J. Prichard, Esq., Professor C. Parry, D. E. C. Yale, Esq., and K. C. McGuffie, Esq., for reading portions of the mss., and giving to me the benefit of their criticism; The Editorial Staff of the Cambridge University Press, both in Cambridge and at the American Branch in New York; Messrs. Burlingham Underwood Wright White & Lord, New York, for forbearance and for the use of various facilities; Dr G. H. Robinson, Cromwell Professor-Emeritus of International and Admiralty Law of Cornell University and Dr C. Parry, Professor of International Law in the University of Cambridge, who were each partially responsible for my studies in Cambridge; and My wife, Priscilla Gwyn Wiswall, for her encouragement over more than six years of research and for her invaluable assistance in transla­ tion, typing, proof-reading and in jacket design. Castine, Maine F.L.W.,JR. June,I970 ENGLISH ADMIRALTY JUDGES When one is made admiral!, hee must first ordaine and substitute for his lieutenant, deputies, and other officers under him, some of the most loyal!, wise, and discreete persons in the maritime law and auncient customes of the seas which hee can any where find, to the end that by the helpe of God and their good and just government the office may be executed to the honour and good of the realme. First Order of The Black Book of the Admiralty. HIGH COURT OF ADMIRALTY Sir William Scott, Lord Stowell 1798-1827 Sir Christopher Robinson 1828-33 Sir John Nicholl 1833-38 Dr Stephen Lushington 1838-67 Sir Robert Phillimore 1867-75 ADMIRALTY DIVISION HIGH COURT OF JUSTICE Sir Robert Phillimore 1875-83 Sir James Hannen, P. 1875-91 Sir Charles Butt, J. 1883-92 Sir Francis Jeune, P. 1891-1905 Sir Gorell Barnes, Lord Gorell, P. 1892-1909 Sir Samuel Evans, P. 1910-18 Sir Maurice Hill, J. 1917-30 Sir Henry Duke, Lord Merrivale, P. 1919-33 Sir Boyd Merriman, Lord Merriman, P. 1934-62 Sir Gordon Willmer, J. 1945-58 Sir Bushby Hewson, J. 1958-66 Sir Jocelyn Simon, P. 1962- Sir Henry Brandon, J. 1966- [only judges named in the body of the work are listed) ix ABBREVIATIONS A Answer A.C. Appeal Cases [Reports], 1891- A.C.A. Admiralty Court Act A.&E. Admiralty & Ecclesiastical Cases [Reports] Adm. Admiralty A-G Attorney-General aff'd. affirmed on appeal A.J. Associate Justice Am.L.Rev. American Law Review Ap. Appendix [App.] Appeal in Court of Appeal App. Cas. Appeal Cases [Reports], 1875-90 Asp. Aspinall's Maritime Law Cases B. Baron [of the Exchequer] B.D.I.L. British Digest of International Law Bos. & Pul. Bosanquet & Puller's [C.P.] Reports Br. &Lush. Browning & Lushington's Reports c. chapter c. contra [versus], circa C.B. Common Bench [C.P.] Reports c.c. Circuit Court [U.S.] C.C.R. Crown Case Reserved cert. den. certiorari denied [U.S.] C.J. Chief Judge, Justice C.J.S. Civil Judicial Statistics C.P. Common Pleas C.Rob. Christopher Robinson's Reports Can. Canadian Car. &K. Carrington & Kirwan's [N.P.] Reports cf. see for comparison Ch. Chancery ch. chapter [U.S.] Ch.D. Chancery Division Reports Cir. Circuit [U.S.] cit. citation omitted cl. clause Cmd. Command Co. Coke's [K.B.J Reports col. column Comm. Commission, Committee Cons. Consolidation x