The Early History of Admiralty Jurisdiction

• Author: Dr. Damien J Cremean
• Position: Adjunct Professor, University of Queensland; Barrister-at-Law. This paper was delivered at the MLAANZ conference in Sydney on 25 September 2013. I express my gratitude to Mr Guy Holborn of Lincoln's Inn Library for help and assistance on several points. Parts of this article appeared in (2011) 85 Australian Law Journal 473 and then in [2012] ...
• Pages: 16-24

(2014) 28 ANZ Mar LJ

16

THE EARLY HISTORY OF ADMIRALTY JURISDICTION

Dr Damien J. Cremean

*

1 Introduction

As regards the historical origins of Adm iralty jurisdiction in Australia we must thank Dr Bennett whose

researches have uncovered Royal Letters Patent of May 1787 under which the first court of Vice-Admiralty

was convened in 1798.

176

Possibly it sat in old Government House not far from here in Sydney Cove.

Admiralty jurisdiction in Australia was put on a firmer statutory basis in criminal matters at least with s 3 of

the Australian Courts Act 1828 (UK) replacing an earlier 1823 Act.

I am concerned in this paper, however, with civil admiralty jurisdiction as it originated in England. That was

jurisdiction exercised by the High Court of Admiralty. Australian courts exercising Admiralty jurisdiction

today are the successors of that court.

There was jurisdiction in maritime matters before there was admiralty jurisdiction. Holdsworth

177

speaks of

many seaport towns having jurisdiction in maritime cases. But it would be jurisdiction exercised in a very

informal way. He says: ‘The Domesday of Ipswich tells us that “the pleas yoven to the law maryne, that is to

wite, for strange marynerys passaunt and for hem that abydene not but her tyde, shuldene be nyleted from tyde

to tyde”.’ Yet the Court Rolls of Ipswich do not support a view at all that maritime work was very pressing:

178

Law in England, at this time, just after the Norman Conquest, is focused on property and thus on land. Property

was the basis of wealth—not the sea.

The Admiralty Court came into being at a very early time

Dr RG Marsden in

Select Pleas in the Court of Admiralty

tells us that the court soon after its e stablishment sat at

Orton Key, near London Bridge: sittings, he says, are also to be found mentioned in other places including

Wool Key, Edgose’s Store and at the ‘High Berehouse’ near Horsleydown.

179

All these are locations near or

on the Thames or an estuary or inlet of the sea. Then the court, it seems, sat in the Church of St Margaret-at-Hill

in Southwark.

180

Finally, it became centrally located in Doctors Commons (the College of Civilians) near St

Paul’s Cathedral where it existed over several centuries. Nearby was the Court of Arches. Doctors Commons—

described by Dickens as ‘cosey, dosey, old-fashioned [and] time forgotten’ – was destroyed in 1867. But

Doctors Commons may have been a rather cheerier place than Dickens makes out: I have in my possession a

receipt dated July 31,1746 for ‘Three pounds fifteen shillings …for Musick for the Admiralty Court’ signed by

a John Wakefield.

At first there were several admirals. Dr Godolphin, writing in 1685, says that in the year 1294:

William de Leiburne

was made

Admiral

of

Portsmouth

, and the adjacent parts;

John de Botecurts

of

Yarmouth

, and the Neighbouring Coasts thereof; and a certain

Irish

Knight of the

West

and

Irish

Coasts.

181

Out of the authority of the admirals, at some point in the distant past, came a curial authority to deal with civil cases.

By a ‘natural evolution’, Roscoe says, ‘they became also arbitrators in maritime disputes’.

182

I suggest this

could likely have been in the mid- 1200’s.

One does not have to be a specialist Admiralty lawyer, therefore, to appreciate that the Admiralty Court is very

old. The question when it may have come into existence is intriguing – to Admiralty lawyers especially.

* Adjunct Professor, University of Queensland;

Barrister-at-Law. This paper was delivered at the MLAANZ conference in Sydney on 25

September 2013. I express my gratitude to Mr Guy Holborn of Lincoln’s Inn Library for help and assistance on several points. Parts of this

article appeared in (2011) 85

Australian Law Journal

473 and then in [2012] Journal of Business Law 350.

176 JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, 1974) 153.

177 WA Holdsworth in Goodhart and Hanbury (eds), A History of English Law (Methuen, London, 1903) vol 1, 531.

178 See generally GH Martin, The Early Court Rolls of the Borough of Ipswich, (University College of Leicester, 1954).

179

See RG Marsden,

Select Pleas in the Court of Admiralty

(Selden Society, 1894) vol 1, xxix.

180

ES Roscoe,

The Admiralty Jurisdiction and Practice of the High Court of Justice

(Professional Books, 1987 reprint) 3.

181

J Godolphin,

A View of the Admiral Jurisdiction

(George Dawes, Chancery Lane, 2

nd

ed, 1685) 23.

182

Roscoe, above n 5, 2.