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Lloyd's Maritime and Commercial Law Quarterly

BOOK REVIEW - HALE AND FLEETWOOD ON ADMIRALTY JURISDICTION

HALE AND FLEETWOOD ON ADMIRALTY JURISDICTION (Publications of the Selden Society, Vol. 108.) Edited by M. J. Prichard, Fellow of Gonville & Caius College, Cambridge, and D. E. C. Yale, Fellow of Christ’s College, Cambridge. Selden Society, London (1993) xxviii and 397 pp., plus 6 pp. Index. Hardback £60.
As the editors point out in their introduction, both the works which they print are concerned with the jurisdiction of the Admiralty rather than with the law which it applied, upon which we have very little information. Sir Matthew Hale does not require to be introduced to the English reader, but the judgment which Story passed upon his Disquisition Touching the Jurisdiction of the Common Law and the Court of Admiralty in relation to Things done upon or beyond the Sea and touching Maritime and Merchants Contracts, that the author “came to the task with all the feelings and prejudices of a common lawyer and added little to what is well known”, if somewhat uncharitable, is not unjust. Since there are early precedents in favour of the common law, and more especially of the King’s Bench assuming jurisdiction over things happening upon or beyond the sea (though the author finds it necessary to hold that a case entered on the Parliament roll must in fact have been decided in the King’s Bench) and since what was common law in 1189 is common law still, that “the times of Henry VI, Edw. IV, Henry VII did streighten the Common Law in this point” is not material. Conversely, precedents from the same period in favour of the jurisdiction of the Admiralty are of no force, for a jurisdiction not conferred by Act of Parliament cannot be lawful unless exercised by prescription since 1189. Insofar as the Admiralty can be said to have any jurisdiction, it is by a fiction, and the reader may rely upon Coke’s precedents of prohibitions to the Admiralty, which are collected in his Fourth Institute, although “a late Undertaker hath with greater Confidence than Judgment endeavoured to give an answer to them”. That diligent student of records William Prynne does not deserve to be mentioned by name.
Fleetwood was also a common lawyer, and a very active public servant under Elizabeth, who was induced to compile his alphabetical collection of “Notes declaring Admiral Jurisdiction” after meeting with resistance in executing a commission from Lord Cobham, then Vice-Admiral of Kent, and the occasion of the compilation has influenced its content. Though the author is at pains to stress that he is not grieved at being termed “a promoter or an Informer upon the penall lawes and Statutes of this Realme”, the forfeitures which the Admiral may exact are his principal subject-matter, and he devotes considerable space to arguing that forfeitures are lawful in conscience and are imposed for the good of the public, that those who are liable to them have in any case no cause to complain of their exaction, since they have themselves consented, through their representatives in Parliament, that they shall be levied, and that those conscientious officers of the Admiral and his Deputies who labour to ensure that they are punctually exacted do not deserve the reproachful names of informers or promoters. The subject of “Charty Party”, on the other hand, is dismissed with a cross-reference to the title upon actions, and an observation that ships very commonly carry forged charterparties in time of war. The editors, however, have largely made up for

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