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The collector was to receive the duties arising under the Act of 1673, but at times he was puzzled how to interpret it and at other times was none too efficient in his attempt to do so.1 One of his most troublesome tasks was the examination of certificates and cockets in order to detect forgeries and erasures, and in cases where the ship captains furnished bonds in the colonies to be sure that the sureties were good and the terms of the bonds carried out. His was the duty to sue out the bonds in the local courts. He had to give a bond himself for £500 and to require a similar bond of the naval officer; to collect the duties in silver or its equivalent, and to make return to the Commissioners of the Customs every year, properly attested by the comptroller or the surveyor. In many of the colonies he had charge of Mediterranean passes, though in New England that business was looked after by the secretary of the colony. When he collected, as was sometimes the case, the king's revenues in the colony, he was expected to bind himself not to engage in trade, but the attempt to prevent all customs officials from engaging in trade was found to be impossible, though the practice was seemingly contrary to law.2

Pluralism prevailed very widely in all branches of colonial administration, north and south and in the West Indies, owing partly to the scarcity of good men and partly to inadequate salaries, but it was particularly common in the customs service. Deputation and absenteeism, patronage and the farming of offices also helped to vitiate the personnel. It is a suggestive commentary on previous practices that in 1761 the accountant disbursing the salaries of customs officers should have been required to furnish certificates that "the several officers were living at the respective times they were paid", and that in 1763 the Treasury should "have ordered all the officers belonging to the Customs in America and the West Indies to be fully instructed in their Duty to repair forthwith to the respective Stations and constantly to reside there for the future"."

No part of the collector's duties was more troublesome than the seizure of vessels for illegal trading. Breaches of the Acts were to be tried in the vice-admiralty courts in America. General admiralty jurisdiction covered (a) felonies, such as murder and mutiny, torts, and other offences on the high seas; (b) piracy, which was provided for by special commissions under an Act of 11-12 William III; and (c) spoil goods or prizes, also provided for by special legislation.* But owing to the provisions of the Navigation Acts and to the rulings of the lawyers in their interpretation of the Acts, this jurisdiction took on a form unknown to the vice-admiralty courts in the seaports of England, where cases of illegal trading, within the three-mile limit

1 Cf. North Carolina Records, VI, 1023.

2 According to an interpretation of 20 Henry VI, c. 5.

3 P.R.O. Audit Office, Declared Accounts, Bundle 818, Roll 1064; A.P.C., Colonial, IV, P. 570.

46 Anne, c. 37, §§ ii, iii.

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or in the waters of bays and rivers, were dealt with in the commonlaw courts of the counties or boroughs or in some cases were carried up to London for trial.

According to the Act of 1660 breaches were to be tried in any court of record. Though opinion prevailed that an admiralty court, rightly speaking, was a court of record, yet in view of the language used in the Act the decision was reached that only common-law courts were there meant.1 During the years from 1660 to 1696 many trials of this kind were held in the colonies, but though occasionally such cases were tried in what were called admiralty courts (chiefly in Barbados and Jamaica, but also in Bermuda and New York2), more commonly they were brought before either the governor, the governor and council, the governor and assistants, the county courts, or special courts of oyer and terminer provided for the purpose. General sentiment in the colonies undoubtedly favoured jury trial for all such cases, and in Massachusetts in 1697 and in Pennsylvania in 1698 acts were passed requiring trial by jury, but these acts were disallowed by the Crown. It is not surprising that the common-law courts should have claimed sole or concurrent jurisdiction, for the extension of viceadmiralty jurisdiction to illegal trading was distinctly an innovation. The obscure wording of the Act of 1696 did not help matters, stating as it did that juries might be employed, provided they were properly selected, and yet at the same time taking it for granted that viceadmiralty courts already existed in America and might be utilised for the purpose.

Great uncertainty prevailed as to how to handle breaches of the acts. Governor Nicholson suggested that they be dealt with in exchequer courts as having to do with the king's revenue, while others, seeming to find a distinction between ordinary admiralty business and breaches of the Acts of Trade,3 wished the latter tried in special courts, on the ground that the governor's commission, authorising him to erect admiralty courts, seemed to restrict the jurisdiction of such courts to marine matters only. The situation was very unsatisfactory to those who were shaping the colonial system in America, for colonial juries could not be depended on to convict, and though some condemnations took place, many vessels escaped and illegal trade flourished. Existing methods were too varied, decentralised and ineffective. British control in other respects was tending towards uniformity and consolidation, and if such control was not to fail at an important point, the enforcement of the Acts must cease to be local and must be managed from Whitehall and Doctors' Commons. 1 Cal. St. Pap. Col. 1702, pp. 480, 554-5; Richard West, counsellor to the Board of Trade, on "Admiralty Jurisdiction", C.O. 323/8, L. 10.

2

E.g. Cal. St. Pap. Col. 1661-8, p. 238; 1689-92, nos. 2636, 2705; 1702, p. 462; Minutes of the Common Council of New York, 1, 69–70.

* Such a distinction is clearly implied in the instructions to Governor Windsor of Barbados, 1662, Cal. St. Pap. Col. 1661-8, p. 81; cf. 1702, no. 570.

Edward Randolph, who for twenty years had been working for greater efficiency in America, became the chief advocate of a more rigid system of centralised control. Obtaining leave of absence from Governor Nicholson, at that time of Maryland and himself an ardent believer in consolidation, he sailed for England in 1696 to lay before the authorities there whatever was "most proper for His Majesty's service". On reaching England in December he laid before the Commissioners of the Customs a body of proposals for the more effectual putting into execution of the Acts of Trade, and appeared in person before the newly appointed Board of Trade in support of his plans. After reading various communications and holding a number of hearings, the Board, with the approval of the Treasury and the Admiralty, sent in two representations to the lords justices, recommending a regular series of vice-admiralty courts for all the colonies. A hearing was held before a committee of the House of Lords, in February and March 1697, at which Randolph was present, together with proprietors of the private colonies or their agents, who were determined to prevent, if possible, this attempt to restrict their independence by the erection of vice-admiralty courts exercising jurisdiction within their borders.4 The situation was undoubtedly a critical one for the proprietary and corporate colonies, as it represented a highly organised attempt of the English authorities to extend, in an important direction, the authority of the Crown in the colonies. The Act of 1696, the establishment of the Board of Trade, the more peremptory instructions to governors and collectors, the more efficient prosecution of bonds, and other similar features were but preliminary to that noteworthy effort which the Board of Trade was soon to make to unite the private colonies to the Crown and to bring about in the interest of trade and defence the consolidation of England's colonial possessions.

3

The Board of Trade's recommendations were approved by the Privy Council, which on 24 February 1697 directed the Board and the Commissioners of the Customs to draw up a list of officials for the new vice-admiralty courts, and on 7 April issued the proper warrants to Sir Charles Hedges, judge of the High Court of Admiralty, authorising him to grant special commissions under the seal of the Admiralty, empowering the governors to erect vice-admiralty courts in the colonies and to appoint judges, advocates, registrars, and marshals, subject to the approval of the Admiralty at home. In due time, twelve such courts were established, from New Hampshire and Massachusetts to Barbados "and the territories thereto belonging",5 which exercised

1 Maryland Archives, xx, 236-7.

2 Cal. St. Pap. Col. 1693-6, no. 2187; North Carolina Records, 1, 461.

3 House of Lords MSS, Ñ.S. 11, 419, 424-5, 446; Cal. St. Pap. Ćol. 1696–7, nos. 100, 108, 116, 120, 131, 133, 142, 149, 511.

House of Lords MSS, N.S. II, 440, 444, 448-54.

5 Cal. St. Pap. Col. 1700, p. 132; C.O. 324/7, f. 206–7.

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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.

2 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.

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

A.P.C., Colonial, rv, 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. 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. 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.

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

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