the cab-owners of London should be under more stringent liabilities than the cab-owners of other cities, is a question which, like many other legal inquiries, can be answered only by the wisdom of Parliament.

A Divisional Court has held in James v. Jones, '94, I Q. B. 304, that baking powder is not an article of food. The nearest approach to a precedent with which we are acquainted is a decision (we believe not reported) of the Chief Court of the Panjáb that rifle cartridges capped but not filled with powder were not ammunition : a decision which the Government of India most properly instructed its executive officers to disregard. In Bakewell v. Davis, ib. 296, another Divisional Court upheld a conviction under the same statute, but with the curious reluctance so often shown by English judges to give effect to the plain meaning of the Legislature.

The Revue du droit public et de la Science politique en France et à l'étranger, edited by M. Ferdinand Larnaude, and published by MM. Chevalier-Marescq et Cie, claims to fill a palpable gap in the treatment of politics and public law. Both M. Larnaude's prefatory announcement and the contents of the first number give good promise.

Will the wonderful theological circular lately issued by the London School Board become a subject of judicial construction? It seems to throw us back to the days of Essays and Reviews.' But we fear there is no such luck in store for the profession.

It seems convenient to repeat in a conspicuous place that it is not desirable to send MS. on approval without previous communication with the Editor except in very special circumstances; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. so sent.

THE

THE CASE OF THE ZETA.

HE House of Lords have arrived at the reasonable and right decision of Mersey Docks & Harbour Board v. Turner, The Zeta, '93, App. Ca. 468. Had it not been for the decision of the Court of Appeal in Reg. v. Judge of the City of London Court, '92, I Q. B. 273, neither that Court nor the House of Lords would have been troubled with The Zeta. As it is, the two cases stand together, and the earlier case is not overruled; but The Zeta shows at any rate that much that was said by the members of the Court of Appeal in the City of London Court case with reference to the history and jurisdiction of the Admiralty Court is not law. In both cases the view of the Court of Appeal was that the Admiral's jurisdiction in the case of damage to ships was limited to proceedings against the owner of the ship that does the damage, and therefore to cases of collision between two ships. It is not difficult to see how this idea has grown up. The rapid increase of collision and salvage cases in recent times, the absence of any reports of Admiralty Court Instance cases of earlier date than the present century, the decrepit condition of the Court during the preceding century, and the fear of prohibition which (not without cause) has possessed even such oracles of the Admiralty as Lord Stowell and Dr. Lushington, have given rise to the belief that the Admiral's jurisdiction no longer exists except in the narrow classes of cases of which instances are to be found in the books. There is nothing in the records of the Court to justify this doctrine. For a century before Lord Coke's time the records are voluminous and complete; and they show that of the multifarious matters litigated in the Court during that period collisions and salvage were amongst the rarest.

Putting aside the vast number of shipping and mercantile cases founded upon contract, we find that torts of various kinds were habitually tried and adjudicated upon in Admiralty. Thus in 1574 The Anne was lost by striking upon an unbuoyed wear set up in the sea by one Richmond of Harwich. Her owner Wolmer sued Richmond in Admiralty. This is the case which Fry L. J. in The Zeta suggested as possible, but which the Master of the Rolls scouted as impossible. The Lord Justice was right, both in his imaginary case and in his law. Cases of ships holing themselves by sitting upon unbuoyed anchors are common. Those of The Susan (1663) and of The Mary (1703), to which attention was called in

these pages, were relied upon by the Lord Chancellor in The Zeta; and they are but two amongst many others. They illustrate, however, the rapidly changing character of the business which must of necessity come before a Court that deals with maritime matters, the conditions of which are constantly changing. During the seventeenth and eighteenth centuries the danger of unbuoyed anchors was a real and a common one; in these days of ships that do not take the ground and of floating docks it seldom occurs. But the prominence of the subject in the records of the Court and in the mediaeval codes of maritime law show that it was at one time as common a cause of action as collision has become in these later days. Again, it was asked by the Court of Appeal in one of the recent cases, by way of a reductio ad absurdum of the argument that torts other than negligence causing collision were triable in Admiralty, whether slander was within the Admiral's jurisdiction. So far as the records show, it certainly was. In Raynes c. Osborne (1579) a sentence was passed for £50 damages for slander. The case next before it upon the file is a slander action in which £100 was recovered for damages. And there are many other slander suits; and so far as the present writer is aware, no one of them was stopped or attempted to be stopped by prohibition. There would be no difficulty in naming many other wrongful acts for which damages were recovered in Admiralty.

It seems not improbable that the Admiral's Court was originally instituted to deal effectually with cases of 'spoil'-in other words, piracy. The causa spolii is a very frequent, probably the most frequent, form of action in Admiralty throughout the sixteenth century. It was a civil action to get restitution of ships or goods piratically taken at sea si extent, alioquin, to recover damages. The practical extinction of piracy in the last century accounts for the non-exercise of the jurisdiction in such cases for many years; but in the face of the records of the Court it could scarcely be denied that the jurisdiction formerly existed and still exists. Yet, but for a casual reference to the matter by Lord Stowell in The Hercules, 2 Dods. 353, its existence would probably have been unknown. Although, as the Coram Rege Rolls show to have been the case, the jurisdiction of the Common Law Courts originally included torts committed at sea, from about the year 1364, these Courts appear to have abstained from exercising it and to have acquiesced in the exercise by the Admiral of his patent jurisdiction in such matters.

An examination of the prohibitions issued before the days of Lord Coke which are preserved amongst the records of the Admiralty-and there seems to be no reason to suppose that the few which are missing were in different terms-shows that they

all proceed upon the Statutes of Richard the Second, 13 Ric. 2, c. 5 and 15 Ric. 2, c. 3; and that the reason of every prohibition was an alleged exercise by the Admiral of his jurisdiction over a matter arising infra corpus comitatus. In the scramble for work and fees which raged throughout the sixteenth and first half of the seventeenth centuries, it seems to be not improbable that the common law practitioners made good use of the fiction of a false venue, and that they succeeded in obtaining prohibitions against their rivals of the civil law in some cases where the cause of action did in fact arise at sea; but the terms of the writs show that in no case was it the subject-matter of the action that caused the prohibition to issue, and that it was always the suggestion, which true or false could not be traversed, that the cause of action arose infra corpus.

During the period at which the causa spolii was so common a form of action, collision cases were very rare. Throughout the sixteenth century the number of sentences passed in collision cases may be counted on the fingers; whilst the number of spoil cases runs to hundreds, probably to thousands. So prevailing was the 'spoil' action that in some of the earlier cases of collision the language of the allegations in spoil suits is used in those of collision cases. Spoliavit et fregit, impetum fecit in and similar phrases indicate that the collision action is the lineal descendant of the causa spolii.

The question having now been raised afresh, there is every prospect of the House of Lords having to review the whole question of Admiralty jurisdiction, and to say by what authority it exercised the extensive jurisdiction in civil and maritime' cases, which it did in fact exercise for centuries before the days of Lord Coke. The ostensible authority of the Admiral during the sixteenth and seventeenth centuries was derived from the letters patent of his appointment. These are extant and purport to confer a jurisdiction over all tidal waters, altogether giving the go-by to the Statutes of Richard II. There can be no doubt that the omission in the patents of this period of any reference to these Statutes was intentional, for in the patents of the previous century the jurisdiction is limited by express reference to the Statutes of Richard. It is no less certain that the question of the validity of the patents of the sixteenth and seventeenth centuries must have been considered by the common law judges, and that they were held to be invalid so far as they were contrary to the Statutes of Richard. It is singular, however, that the point is not the subject of any reported case, and that although the prohibitions all recite and proceed upon

the Statutes of Richard II, there is no reference in any one of them to the terms of the patents. Similarly in Lord Coke's wellknown Articuli Admirallitatis the contention of the civilians as to non obstante statuto is passed over in contemptuous silence. Oddly enough most of the collisions during the sixteenth and early part of the seventeenth centuries were in the Thames at or near London; yet in no case until Hall v. Cook was the Admiralty Court prohibited, although the collision occurred within the body of the county. The prohibitions issued by Lord Coke, and subsequently to his time, are not amongst the Admiralty records; and it is not possible without a laborious search of the records of the Common Law Courts to say upon what grounds they issued.

With reference to the City of London Court case, where the question was as to the jurisdiction of the Admiral to entertain a suit against a pilot for negligence in damaging another ship, it may be mentioned that suits against pilots for loss of ships and cargoes through their negligence were formerly common. Domries v. Lies (1564) is one amongst several; but the case mentioned in the Court of Appeal, Russell v. Hayes, is not a pilot's case 2.

It is hoped that the Selden Society will before long issue a volume of extracts from the records of the High Court of Admiralty during the sixteenth century. The records begin about 1520, and show that until Lord Coke laid his hand upon the Admiralty Court, the amount of shipping and mercantile business transacted by it was very large. Insurance, bills of lading, average, bills of exchange, and charter parties were familiar to the Admiralty practitioners probably for many years before they formed any considerable part of the business of the Common Law Courts at Westminster. It is to the records of the Admiralty Court that historians of English commercial law must look for the earliest decisions upon such matters.

R. G. MARSDEN.

1 This case (circa 1615) is probably that referred to in Violet v. Blague, Cro. Jac. 514. 2 The writer takes this opportunity of pointing out that by a mistake for which he is responsible, the Court of Appeal (1892, P. 283) were misled into supposing that Russell v. Hays, Marsden's Ad. Ca. 307, was a suit against a pilot. John Hays was a naupegus (ship's carpenter). The record was produced to the Court of Appeal, but the misprint, naugogus for naupegus, escaped the notice of the Court as it had that of the editor of the report.