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JURISDICTION OF VICE-ADMIRALTY COURTS 297

from the beginning an extensive authority over ordinary marine causes and cases of smuggling and the unlawful management of vessels. Thereby was laid "the foundation for an admiralty jurisdiction, enlarged and vigorous, as compared with that to which the High Court of Admiralty in the eighteenth century meekly submitted".1

During the early years in the history of the courts there were many difficulties to be settled and many problems to be solved. At first considerable uncertainty prevailed as to whether the governors exercised their vice-admiralty powers by virtue of their civil commission or of their admiralty commission, but in the end the decision was reached in favour of the latter.2

A similar uncertainty prevailed as to appeals, which at first, without distinction, were directed to the King in Council. When it was made clear that the courts were held by virtue of a commission under the seal of the Admiralty, the Privy Council ruled that appeals should lie to the High Court of Admiralty. From this time forward for more than forty years this practice obtained, but at some time about 1745, with the gradual breaking down of the authority and influence of the High Court in England, appeals were once more taken over by the Privy Council, and in 1768 the statement was made that the proper jurisdiction was there. Further appeal could be made to the High Court of Delegates, representing the equity power of the king. The problem of the jurisdiction and the powers of the viceadmiralty courts in America was one involving serious differences of opinion and prolonged disputes. At the beginning, the proprietary and corporate colonies denied emphatically the right of the Admiralty to erect such courts within their boundaries, as they deemed it an infringement on their charter rights. This dispute regarding jurisdiction took place in the Bahamas and South Carolina, and with great vehemence in Pennsylvania, where with Penn, as proprietor, on one side, and Robert Quary, as judge of vice-admiralty, on the other, the controversy was drawn out for several years.5 Two leading issues were involved; first, as to whether, under the terms of the Act of 1696, trials for breaches of the Acts, taking place either in a viceadmiralty court or in a common-law court, should be held before a jury; and, secondly, whether the customs collectors and viceadmiralty officials could make seizures within the "body of the province", that is, within the lands and waters under the jurisdiction of the proprietor. To the first question the answer came quickly. In

1 Hough, Cases in Vice-Admiralty and Admiralty, New York, 1715-88, Introduction. Cal. St. Pap. Col. 1702, no. 197; 1702-3, no. 890; Maryland Archives, XXIV, 287; cf. Cal. St. Pap. Col. 1711-12, nos. 122, 126, 141.

3 Maryland Archives, xxv, 17; Cal. St. Pap. Col. 1702-3, no. 890.

4 A.P.C., Colonial, iv, 768.

* Pennsylvania Magazine of History, 1900, pp. 3-22; cf. New York Colonial Documents, VI, 154-5; Hough, p. 182.

1702, the Attorney-general, though recognising that the clause of the Act of 1696 relating to trials was very obscure, declared1 that as Parliament had intended suits to be tried in vice-admiralty courts under the seal of the Admiralty, such suits could not be drawn away to the common-law courts, but must be tried in vice-admiralty courts only, and as procedure in such courts was that of the civil law, juries could not be employed.

The second question, as to the jurisdiction of the vice-admiralty courts, was not so easily answered. At first the courts made wide claims, not only taking to themselves control over piracy, illegal trade, and such customary admiralty business as wages, salvage, charterparties, bottomry, and collision, but also, as Penn said in 1701, breaking in upon the jurisdiction of the common law and trying without a jury cases that were of a civil and not a maritime character. Owing to the small number of vessels of the British Navy that were available for guarding American waters, few seizures could be made on the high seas, and where vessels were taken within the waters of a colony, the common-law courts claimed authority and the higher among these courts exercised the right to intervene. 2 They discharged convicted traders and released from prison persons who had been sentenced by the vice-admiralty judges for not satisfying the judgments of those courts. They issued writs of prohibition forbidding the vice-admiralty courts to proceed and drawing the case over into the courts of common law. They set aside the sentences of the viceadmiralty courts, barred their execution, and in general stepped in whenever these courts seemed to be exceeding their powers.3 In regard to prohibitions the conflict was least serious in New York and most serious in New England, partly because in 1722 the vice-admiralty courts were granted jurisdiction in all violations of the Naval Stores Act, which affected New England particularly. The situation finally became so vexatious to the vice-admiralty judges that in 1720 and again in 1730 they complained to England of the interruptions by the common-law judges. But little was done and the dispute was left to take its course. Three noteworthy cases arose: that of the Sarah in Pennsylvania, 1731; that of Erving and Gray in Massachusetts, 1761; and that of Henry Laurens in Charleston, 1768, each of which disclosed the feeling of dislike that arose in the colonies in the eighteenth century against the authority and procedure of the vice-admiralty

courts.

In 1764 and 1768, as a part of the effort to strengthen the machinery of the old British system in America, a reorganisation took place, whereby the powers of the vice-admiralty courts were greatly

1 Cal. St. Pap. Col. 1702, nos. 585, 596, 708.

2 Osgood, American Colonies in the Eighteenth Century, 11, 300-1; New York Colonial Documents, IV, 924.

West's Report, C.O. 323/8, L. 10; A.P.C., Colonial, III, § 205.

CHANGES IN 1764 AND 1768

299

extended.1 At first a single court was provided for, which was to sit at Halifax and to have concurrent powers with the other viceadmiralty courts in America, but without the right of hearing appeals. Because of the troubles resulting from the passage of the Stamp Act this plan was given up, and in consequence of the passage of the Townshend Act in 1767, for the more easy and effectual recovery of the penalties and forfeiture inflicted by the Acts of Parliament, four courts were established, at Halifax, Boston, Philadelphia and Charleston, to have jurisdiction both original and appellate within a specified area. The older courts remained as before, but further right of appeal to England was forbidden, the new courts serving as courts of last resort.2 These courts were to be presided over by able civilians from Doctors' Commons, with salaries but no fees. Under the Act3 all breaches of the Navigation Acts might be tried either in the viceadmiralty courts or in those of the common law at the option of the prosecutor. This plan was duly carried out, except that the judges were not, as a rule, doctors of civil law. Thus, control over viceadmiralty matters in the colonies was finally centred in America and a new arrangement was entered into similar to that which was effected at the same time by the establishment of the American Board of Customs Commissioners. Both marked for the colonies on the continent a tightening of the British bonds, at a time, too, when the colonies themselves were feeling the urge of greater liberty and freedom; and both showed the determination of the British Government to enforce at any cost and by every means in its power the dependence of the colonies upon the authority of Crown and Parliament.

1 William Bollan, agent for Massachusetts, had urged such an extension in "Proposals' sent to the Board of Trade in 1749. C.O. 323/12, O. 61.

2 New York Colonial Documents, vi, 445.

3

7 George III, c. 15, § xli.

CHAPTER X

RIVALRY FOR COLONIAL POWER, 1660-1713

THE half-century between 1660 and the Peace of Utrecht witnessed

a metamorphosis in Europe, and predicted and prepared an almost equal transformation in the world. In western Europe, its salient feature was the rise of Britain and the relative decline of France. The rise of Britain may be calculated from the datum of the Dutch, that "stomachful people" who, though emerging with credit from four momentous wars, sank from equality with her to be merely a cockboat in her wake. It was attested by the gravitation towards her of smaller States, notably of Portugal, for whom France had earlier seemed the only possible ally, and Savoy, always sensitive to the magnet of superior power.2 Despite her dynastic difficulties and party strife, moreover, Britain had improved in organisation and public safety no less than in wealth and numbers. The society of three kingdoms, ruled by a cabinet and inspired by Blenheim and Gibraltar, formed a far mightier force than the timid and unstable England of the Reformation. On three distant continents, as well as within her own boundaries, the future of Britain seemed in 1713 full of hope.

The France of Louis XIV, on the other hand, had reached and passed her zenith. The subjects of her King, indeed, still outnumbered those of his northern neighbour by something like five to two. With all its strain and privation, the great half-century of his rule (1661– 1715) had added fresh elements to their national well-being. They now possessed widened territory, a strengthened frontier, improved communications, new industries, a great military and naval apparatus, and the memory of high achievement in the domains of both intellect and war. Spain, their secular rival, was henceforth to be governed by a Bourbon line, and the Habsburg ring around their frontiers was broken. Above all, at however great a sacrifice, their national unity had been secured. Never again would pious Catholics cross the Atlantic to escape from Huguenot intolerance,3 while provincial disloyalties had melted in the beams of le Roi Soleil. Yet the hopes of 1664 had been dimmed, if not extinguished. "A most promising Prince he is, and all the Princes of Europe have their eyes upon him", wrote Pepys in 1663 on the last day of the dying year. But, after Ryswick and Utrecht, never again would foreigners extol Louis as "fallen into the right way of making his kingdom great, as none of his ancestors ever did before". In a quarter of a century of struggle,

1 Temple, Sir W., Observations upon the United Provinces of the Netherlands, p. 129.

2 Carutti, D., Storia della diplomazia della corte di Savoia, IV, 3.

3 Leroy-Beaulieu, P., De la colonisation chez les peuples modernes, 1, 148.

Pepys, Diary, 6 November 1668.

EUROPE IN THE AGE OF LOUIS XIV

301 united Europe had dissipated his dreams of making the Dauphin Emperor and of himself dictating to the world. The wish uttered by Temple in 1669 had at last received fulfilment, for France "that grasps at all" had been "induced to leave the world some time in quiet". 1

At the same time the Dutch and English had attained the aim explained in 1707 by Marlborough to Charles XII-a true balance of power. Thanks to their exertions, France could no longer make "offensive war daily and alone against all Europe, insulting her neighbours, invading their territories, and rendering the will of her King an universal law".2 This metamorphosis in the West found its parallel in other State systems within Europe. Thanks in large measure to Prince Eugène, the House of Austria was steadily gaining strength, and the Empire, which in 1664 owed salvation from the Turks to Louis' troops, had by 1714 tamed the Ottoman power. In the north, Brandenburg had developed into Prussia, while Sweden was about to sink from the first order among kingdoms to the third. On the side of Asia, the Muscovites, half-roused by Peter's relentless cudgel, were becoming an incalculable menace to the Europeans of the north and east.

During this half-century, however, neither the world map nor the map of Europe had undergone any startling change. Yet the way had been prepared for a revolution in values by which colonies and commerce would soon sway policy as at no earlier time. At Utrecht "we acquired...the commerce of the world", but at the same time no treaty between civilised States has ever embodied more challenges to war. The half-century after 1660 witnesses the germination of that colonial rivalry between France and Britain which dominated history until Waterloo.

At the outset, when Louis XIV, John de Witt and Clarendon had stepped to the forefront of the European stage, the world might seem destined to the calm which should follow the conclusion within thirteen years (1648-61) of six stubborn and widespread wars. With the religious question solved by exhaustion, the Habsburg and Vasa ambitions foiled, stable government restored in France and the will of the English people victorious over military rule, the time was surely ripe for the peaceful development of the riches of the earth. "The world is large", said the English ambassador to the Dutch in 1661, "there is trade enough for both, and if there were not, I do not see how it would be made more or more safe by their misunderstanding."4 For Europeans, it is true, the world was far smaller

1 Jones, D., Letters written by Sir William Temple...to the Earl of Arlington and Sir John Trevor, Secretaries of State (1699), p. 181.

2 Besenval's report to Louis XIV; Coxe, W., Memoirs of the Duke of Marlborough, 11, 58. Acton, Lord, Lectures on Modern History, p. 263.

♦ Beresford, J., The Godfather of Downing Street: Sir George Downing, 1623–1684.

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