Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/325

 9. HOLDSWORTH: THE LAW MERCHANT 311 up to low water mark, concurrent with that possessed by the Courts of Common Law.^ We have seen that the procedure in the Admiral's court had come to be modelled on the procedure of the civil law. The early precedents for trial by jury were not followed.'* Trial by witnesses took its place. In 1536 dissatisfaction with this method of trial produced a statute, the ultimate effect of which was to transfer to the Courts of Common Law the criminal jurisdiction of the Admiralty.^ The statute recites that those who have committed crimes upon the sea, " many times escaped unpunished because the trial of their offences hath heretofore been ordered . . . be- fore the Admiral . . . after the course of the civil laws ; the nature whereof is, that before any judgment of death can be given against the offenders, either they must plainly confess their offences (which they will never do without torture or pains) or else their offences be so plainly and directly proved by witness indifferent, such as saw their offences committed, which cannot be gotten but by chance at few times, because such offenders commit their offences upon the sea, and at many times murder and kill such persons being in the ship or boat where they commit their offences, which should wit- ness against them in that behalf; and also such as should bear witness be commonly mariners and ship men, which, be- cause of their often voyages and passages in the seas, depart without long tarrying." It provides that treasons, felonies, robberies, murders and confederacies, committed in any place where the Admiral has jurisdiction, shall be enquired into and tried by commissioners appointed by the crown as if the offences had been committed on land. The commissions can be issued to the Admiral, his deputy, or three or four other substantial persons to be appointed by the Lord Chancellor. In 1799 this Act was extended to the trial of all offences com- mitted on the high seas.* '5 Co. Rep. 107 (Sir Henry Constable's case). "Below the low water mark the Admiral has the sole and absolute jurisdiction. Between the high water mark and low water mark the common law and the Admiral have divisum imperium interchangeably." » Select Pleas of the Admiralty (S. S.) i liv. »28 Henry VHI. c. 15. •39 Geo. III. c. 37.