Vice Admiralty Court of NSW, 1787-1911

Overview

One of the earliest courts established in New South Wales, the Vice Admiralty Court was an Imperial Court whereby directives, instructions, imperial bills and acts changing its structure or procedures as well as rules, regulations and tables of fees were received via dispatches from the Secretary of State. Under this arrangement, local conditions could not be taken into account; as a result, the Court was much maligned, particularly by merchants who felt that both the scale of fees and the relatively slow dispatch of business in the Court were detrimental to merchant shipping in New South Wales as a whole.

Dissatisfaction with the Court was partly based on a lack of knowledge, even by judicial officers, as to its actual jurisdiction. Although initially invested with jurisdiction over both criminal and civil maritime matters, the criminal jurisdiction was quickly taken over by the Supreme Court, which could also adjudicate on many civil maritime matters. Even today, as a result of the incomplete state of its records, it is difficult to assess the administrative importance of the Vice Admiralty Court, particularly during the period before 1826. The significance of the Court, nevertheless, should not be denigrated; in its long and changing history the Court had an impact on both the legal and maritime history of New South Wales, as well as having economic and social significance due to the nature of the cases upon which it adjudicated.

The Susanna Christina case

Five actions were entered in the Vice Admiralty Court of New South Wales against the vessel Susanna Christina between 11 December 1854 and 22 February 1855. These actions comprised one cause of bottomry brought by the Manager of the Oriental Bank Corporation of Sydney, holder of two bottomry bonds, for £6,000 damages and four causes involving claims for wages by seamen totalling £550 damages. 

As a result of the bottomry action, the Court decreed that the ship be sold in February 1855. Between 24 to 30 March 1855 the Court received in cash the sum of £6,289.8.7 from the Marshall on account of the sale of the ship of which £6,286.14.3 was paid out by the Court to meet the costs and damages awarded in the five actions brought against the vessel. (See Assignation book, [4/480], pp.120-121, for account of the distribution of the monies received from the sale.)

Vice Admiralty Court 1787-1812

In April 1787 a memorial was read at a meeting of the Privy Council in Britain in which the Lords Commissioners of the Admiralty sought authority to be empowered to appoint a Vice Admiral “and also a Judge and other officers requisite for a Court of Vice-Admiralty in New South Wales”.[1] King George III, with the advice of his Privy Council, approved and directed Lord Sydney, one of the Principal Secretaries of State, to ensure that a warrant was prepared “in order to pass a commission under the great seal”.[2]

Accordingly, on 12 April 1787 a Commission was issued under the Great Seal of the United Kingdom empowering the Lords Commissioners of the Admiralty to establish a Vice Admiralty Court in New South Wales.[3] Warrants for commissions were thereupon issued on 18 April appointing Robert Ross as judge, Andrew Miller as ‘register’ and Henry Brewer as marshal of the Court.[4] On 30 April Letters Patent were issued to Governor Phillip as Vice Admiral and to Robert Ross as Judge under the Great Seal of the High Court of Admiralty.[5]

Among the powers granted to Ross as Judge of the Vice Admiralty Court, the Letters Patent gave him

full power to take cognizance of and proceed in all causes civil and maritime and in complaints contracts offences or suspected offences crimes pleas debts exchanges policies of assurances accounts charter-parties agreements bills of lading of ships and all matters and contracts which in any manner whatsoever relate to freight due for ships hired and let out transport money or maritime usury (otherwise bottomry) or which do any ways concern suits trespasses injuries extortions demands and affairs civil and maritime whatsoever ... [and] to hear and determine [these causes] according to the civil and maritime laws and customs of our High Court of Admiralty of England in the said Territory called New South Wales and country and islands thereunto belonging.[6]

In addition, however, the Commission empowered Ross to deal with causes of a criminal nature: “to search and enquire of and concerning all goods of traitors pirates manslayers felons fugitives ... [and] all other trespasses misdemeanors offences enormities and maritime crimes whatsoever done and committed”.[7] Other provisions of great importance included the right of appeal to the High Court of Admiralty in England from decrees of the Vice Admiralty Court in New South Wales, and the right given to Ross as Judge of “deputing and surrogating in your place for and concerning the premises one or more deputy or deputies as often as you think fit”.[8] It should be noted that later Commissions, such as the one issued to Dowling on 19 January 1841, enumerated similar powers.[9]

Further Letters Patent were issued on 5 May 1787, pursuant to the Act 11 and 12 Will.III, c.7 and other statutes relating to the suppression of piracy on the high seas, which appointed the Governor and other commissioners to exercise jurisdiction in case of “piracies, felonies or robberies” within the jurisdiction of the Admiral.[10] Arthur Phillip, the Governor; Robert Ross, the Lieutenant Governor; Andrew Miller, the Commissary of Stores and Provisions; Augustus Alt, the Surveyor of Lands; together with John Hunter, William Bradley, Philip Gidley King, George William Maxwell, Henry Lidgbird Bell and the “Captains and Commanders of our ship who are or shall be within the Admiralty jurisdiction of the said territory called New South Wales”;[11] were appointed Commissioners. The Court so constituted was given authority “for the examining, enquiring of, trying, hearing and determining and adjudging ... all piracies, felonies, and robberies and all assessories thereunto committed or which shall be committed in or upon the sea or within any haven, river, creek or place where the Admiral or Admirals have power authority or jurisdiction”.[12] It should be noted that this court “was only invested with a limited and defined Criminal Jurisdiction, and ... could only lawfully be convened for these prescribed purposes when at least one of the above mentioned Commissioners or a Commander of a British warship was available”.[13]

The Court could be convened on shipboard or on land whenever required and was to consist of not less than seven of the persons named although any three Commissioners were authorized to appoint any “known merchants, factors or planters or such as are captains, lieutenants or warrant officers in any of our ships-of-war, or captains masters or mates of some English ship” to act in the Court.[14] It was envisaged that, at the first convening of the Court, the Letters Patent would be read and the President and other Commissioners sworn in.[15] In practice, due to the infrequency of Court hearings and the frequent changes in personnel, precepts were issued, naming constituent members for each sitting of the Court, while the Commissioners were sworn in on each occasion.[16]

On 27 April 1787 Lord Sydney wrote to Governor Phillip that the “Commission for the trial of pirates, and that appointing you Vice-Admiral, and for other officers to form an Admiralty Court, I find are not yet compleated, but those commissions will be sent to you”.[17] Although ambiguous, a distinction appears to have been made between the Letters Patent of May 1787 and the earlier Letters Patent of April.

Difficulties in assembling the Court were soon apparent. In November 1791 Governor Phillip wrote to Under-Secretary Nepean that “the situation we are in with respect to the Vice-Admiralty Court will be obvious. The Judge, now at Norfolk Island, and about to return to England, the Registrar dead; and not a second person will remain in this colony, after the departure of the Supply and Gorgon, by whom those who have already returned could be replaced”.[18] Subsequently, Richard Atkins was appointed registrar by Phillip[19] and Francis Grose, the Lieutenant Governor, became judge in place of Ross.[20]

Governor Hunter, however, found this arrangement unsatisfactory. As a constituent member of the Court under the Letters Patent of May 1787, he “took exception to the fact that if he had elected to sit as a member of the court, it would have been under the presidency of his junior in rank”. Moreover, he was in doubt, either due to ignorance or misunderstanding, as to how the court could be convened. His disquiet was expressed in a letter to the Duke of Portland in March 1796:

Altho’ I am in possession of his Majesty’s Commission appointing me Vice-Admiral of this territory, I am yet at a loss to know how a court of Vice-Admiralty is to be convened here for the trial of offences committed on the high seas, in the absence of the Lieutenant-Governor, who is judge of that court, or how the Governor can sit as a member of a court assembled by an order from himself, and where an inferior officer is the judge or president. These are circumstances which I confess, my Lord, I do not correctly comprehend, and yet the Patent seems to express as much.[22]

In his reply of March 1797, the Duke of Portland enclosed an opinion from the Advocate General respecting the powers of the Vice Admiralty Court. This, apparently, was never received.[23] The Duke of Portland pointed out that “If I find ... that Col. Ross has not left any person as his surrogate in the settlement, I will apply to the Lords of the Admiralty to grant a Commission of Judge of the Vice-Admiralty to such person resident in the settlement as you shall point out to me”.[24] In effect, he reiterated the principle that the judge could appoint a deputy or surrogate.

It appears that it was under the Letters Patent of May 1787 - relating to piracy - rather than the Commission of April 1787, that the first Vice Admiralty Court was assembled in New South Wales in 1798 by Governor Hunter so “that it might be known such a Court could be held in this colony”.[25] Major Foveaux was appointed President or Judge in a warrant dated 7 August 1798. This warrant also named the following constituent members: Capt. Henry Waterhouse, Lieut. William Kent, Lieut. John Shortland, Lieut. Matthew Flinders, Capt. John Fearn, Robert Campbell, Capt. Charles Bishop, Roger Simpson, James Williamson, Thomas Arndell, James Kennedy, and Thomas Moore.[26] Foveaux, however, declined the appointment and Capt. Henry Waterhouse was appointed in his stead. In this second warrant, dated 15 August 1798, Lieut. Robert Braithwaite, Capt. William Wilkinson, Augustus Alt, Andrew Gouldie, Douglas Paule and Robert Scott were added as members of the Court.[27] When the Court assembled on 20 August 1798, several of the constituent members (namely Fearn, Campbell, Williamson and Simpson) failed to attend.[28] The President accordingly reported this to the Governor, who “directed the President to Signify the Governor’s entire Disapprobation of a Conduct which seems to border on Contumacy and that the said President do reprimand such Members as have thus subjected themselves to Censure”. He ordered that a Minute of his Commission as Vice Admiral be entered as a Court record so “that on future Occasions The Governor’s Powers and the Penalties incurred by Disobedience thereof may be known and understood”.[29]

In this period, the Vice Admiralty Court exercised Prize jurisdiction during periods of hostility, particularly with Spain, France and the ‘Batavian Republic’.[30] The first Prize sittings occurred in May 1799. Henry Waterhouse, as President or Judge, ordered that the Spanish vessel Nostra Senora de Bethlehem, captured off Cape Blanco on the coast of Peru by the Cornwall and Kingston, be condemned as “lawful prize”.[31]

Yet no specific prize commission for the Vice Admiralty Court of New South Wales seems to have existed prior to 1812. From time to time, instructions had been transmitted to Sydney “to regulate the work of the Court including such matters as the seizure of French ships during the Napoleonic wars”[32] and “specific grants of jurisdiction conceivably would have been made under 43 Geo. III c.160 and 45 Geo.III c.72, of 1803 and 1805 respectively, concerning the exercise of Prize jurisdiction over enemy vessels”.[33] In 1806, for example, a Vice Admiralty Court was convened to deal with certain Spanish ships “as official information has been received of a declaration of hostilities, and orders to make reprisals of the ships and subjects of the King of Spain”.[34]

The prize cases heard in the Vice Admiralty Court prior to 1812 may have been, in reality, irregularities in procedure due to ignorance that a specific Prize commission was necessary. Currey maintains that

although, in 1799, one of the decisions of Sir William Scott was transmitted to the Governor because it was thought desirable ‘that the principles of the Law of Nations in Maritime Captures, as therein explained and laid down should be universally made known and adhered to in our Colonial Courts of Vice Admiralty’; and though, in 1803, Governor King received a circular despatch detailing the procedure to be adopted in prize cases by Vice Admiralty Courts ‘which shall be duly commissioned’; there is not the slightest evidence that the local Court had at any time been invested with the prize jurisdiction.[35]

Vice Admiralty Court 1812-1825

“When Ellis Bent arrived in 1810 as the Colony’s fourth Judge-Advocate and as Judge in Vice-Admiralty, he formed the view that Prize jurisdiction has been entertained de facto rather than de jure”.[36] Bent apparently expressed some misgivings in a letter dated 29 November 1811 concerning the Prize jurisdiction of the Court, to which Croker, the Secretary to the Admiralty, replied on 6 June 1812 by enclosing “Warrants, and also the Documents to which they refer, authorizing you [Bent] to proceed to the trial and condemnation of captured Vessels”.[37] These papers were much delayed in the mails. Governor Macquarie wrote to Earl Bathurst as late as June 1813 requesting that the Lords Commissioners of the Admiralty “Commission the Court of Vice Admiralty here to proceed to the Adjudication of Cases of Prize, and to Send me such Instructions, Documents, etc., as are usually Sent out”.[38] However, on 31 July 1813 the Commissioners for executing the Office of Lord High Admiral of the United Kingdom revoked “the power and authority given ... to take cognizance of and judicially to Proceed upon all, and all manners of Captures, Seizures, Prizes and Reprizals of all ships, Vessels, and Goods seized and taken, or which should be seized and taken, within the limits of the Vice Admiralty Court of the Settlement of New South Wales, and to hear and determine the same” and, furthermore, ordered the return of the Warrants issued so that they could be cancelled.[39]

Shortly thereafter, a Prize case arose concerning the Seringapatam, which Governor Macquarie referred to the Vice Admiralty Court. Bent ruled that the case could be viewed from two positions: “the first before the Civil Instance Court of Vice Admiralty, the last before the prize Court - In this Colony there is a Civil Court of Vice Admiralty; but there is not any prize Court”.[40] Although Bent reported on the case to Earl Bathurst in October 1814, recommending that the Court’s impotence in Prize matters be rectified as “some instances have lately occurred of very enormous offences perpetrated on the High Seas within the limits of this Government which have escaped punishment or investigation for want of a jurisdiction in this territory”,[41] the Prize jurisdiction was not renewed.

Whilst Ellis Bent was Judge of the Vice Admiralty Court procedures in the Court were substantially changed. “It may be proper to state that, till the appointment of my later Brother to the Office of Judge of the Vice Admy. here, many illegalities existed in that Court”, reported Jeffrey Bent, “and such extreme Ignorance prevailed, that, till his arrival in the Colony, The distinction between the Instance and Prize Courts was not known”.[42] In addition, “Prize cases were no longer entertained, and those cases, including piracy, covered by the patent of May 1787, which called for a bench of seven, were less frequent. The preoccupation was with the civil limb of the Instance Court”.[43]

Ellis Bent, moreover found “that the greater part of the Records of the said Court, owing amongst other causes, to the Disturbances, lately prevalent in this Territory, are lost, and the remainder extremely imperfect”.[44] As Jeffrey Bent reiterated to Earl Bathurst in a letter of 25 February 1816: “This Office He was only induced to hold, as a means of preventing the many and great illegalities that had been committed in that Court here from the complete Ignorance that everyone, even the Governors, were in as to the Powers and Duties of that Office. Several important Cases came before my Brother in this Court, and much trouble fell upon him in consequence, inasmuch as he was obliged literally to do what the Registrar and the Marshal from ignorance were not able to perform”.[45] Certainly Ellis Bent was the first Judge of the Vice Admiralty Court legally qualified to act as such in contrast to the inexperienced lay judges of the past.

In contrast John Wylde, who replaced Ellis Bent as Judge Advocate and Vice Admiralty judge, remained ignorant as to the nature of the Court. This is displayed in a missive which he wrote to Commissioner Bigge in 1821:

I hold a Commission as Judge, from the High Court of Admiralty at home; under what authority the court itself has been established, I am not perfectly aware. The Governor has a Commission also as Vice-Admiral, but as this court has never attempted, of course, to act but as an Instance Court, it may be worthy of consideration, whether it would not be expedient and of great public advantage, from the increasing property of the Colonial interests, that Admiralty Jurisdiction should be given to the Supreme Court at this place, as to the Courts in India ... I would propose then, that one Court of Judicature, be established in this Colony, as a court of record, to be called ‘The Supreme Court’ and ... that such court should have full power and authority to exercise and perform all civil, criminal, admiralty, and ecclesiastical jurisdiction.[46]

Similar representations were made in the 1840s and 1850s which reveal a continuing confusion as to the authority and jurisdiction of the Court: it was proposed that the Vice Admiralty Court be abolished and that the admiralty jurisdiction be invested in the Supreme Court.

Commissioner Bigge, in his Second Report on the Judicial Establishments, succinctly commented on the jurisdiction of the Vice Admiralty Court:

The jurisdiction of the Instance Court of Vice-Admiralty at Sydney is exercised by Mr. Judge Advocate Wylde, who holds a commission that enables him to try all breaches of the laws of trade, navigation and revenue, as well as suits for the recovery of seamen’s wages. Causes of the former description have very rarely occurred at Sydney; and from a want of knowledge of the jurisdiction of the Vice-Admiralty Court, in questions of seamen’s wages, I observed that they were generally submitted to the decision of the magistrates.[47]

However, Bigge also reported - fallaciously - that “Piracies and outrages have frequently been committed on board vessels on the coast of New South Wales, of New Zealand, and of the neighbouring islands, and have equally gone unpunished from want of authority in any of the colonial tribunals to take cognizance of them”.[48] Although this statement confirms the disappearance, in practice, of the seven man Vice Admiralty bench exercising the powers conferred upon them by the Letters Patent of May 1787, the jurisdiction had not been abrogated, in theory, and the “offences mentioned by Bigge could have been adjudicated upon in Sydney: though not as effectively as might otherwise have been possible”.[49]

In consequence of Bigge’s narrow interpretation of the Vice Admiralty Court’s jurisdiction, the Supreme Court which he proposed for the colony would have had jurisdiction embracing the trial and punishment of offences committed by British subjects on the high seas. Subsequently, section 3 of the New South Wales Act, 1823 invested the Supreme Court with authority to:

inquire of, hear and determine all treasons, piracies, felonies, robberies, murders, conspiracies and other offences of what nature or kind soever committed, or that shall be committed upon the sea, or in any haven, river, creek, or place where the Admiral or Admirals have power, authority, or jurisdiction.[50]

The same jurisdiction was conferred under the Australian Courts Act, 1828[51] which replaced the temporary enactment of 1823. Jurisdictional prerogative was thus hopelessly confused. Bennett argues that although the Supreme Court was invested with jurisdiction over the subject matter of the criminal branch of the Instance Court, “as the Vice-Admiralty Court still had restricted power over offences committed on the high seas, the Supreme Court, to that extent, had only concurrent, not exclusive jurisdiction”.[52] But in practice criminal cases were no longer heard in the Vice Admiralty Court.

Later enactments, moreover, ensured that the criminal jurisdiction was transferred completely to the Supreme Court. By 12 and 13 Vict., c.96, all persons charged with offences committed within the Admiralty jurisdiction could be dealt with by the local courts as if the offences had been committed within the local jurisdiction; the Justices’ Acts empowered magistrates to try all cases of indictable offences committed in any place within the jurisdiction of the Admiralty; and the Merchant Shipping Acts provided that all crimes committed on British ships or by British seamen could be tried by a court of justice in Her Majesty’s dominions in which the offender was found.[53]

Vice Admiralty Court 1825-1844

In 1825, after the departure of Wylde, and prior to the appointment of Francis Forbes as Judge of the Vice Admiralty Court, an important case arose in which the Almorah was accused of breaching the East India Company’s charter in importing tea without a license as required by law.[54] The Attorney General of New South Wales, Saxe Bannister, felt that there was no court in the colony which could determine the case.[55] James Stephen, Jr., counsel to the Colonial Office, appeared to agree, advising in October 1825 that it “seems not clear whether a Commission has been issued establishing a Vice Admiralty jurisdiction in the Colony. If not, I think there is no competent Court. I cannot discover in the New South Wales Act, 4th George 4th, Cap.96, any provision which would invest the Supreme Court of the Colony with such a jurisdiction”.[56]

Forbes was subsequently granted a commission as Vice Admiralty Judge, dated 31 October 1825, which empowered him to try both cases of civil and criminal nature.[57] Perhaps because of the ignorance displayed in the past, the Act 2 Will.IV, c.51, passed in 1832, and designed to regulate the practice and fees in Vice Admiralty Courts abroad and to obviate doubts as to their jurisdiction, defined the jurisdiction of the Vice Admiralty Courts with greater precision:

And whereas in certain Cases Doubts may arise as to the Jurisdiction of Vice-Admiralty Courts in His Majesty’s Possessions Abroad, with respect to Suits for Seamen’s Wages, Pilotage, Bottomry, Damage to a Ship by Collison, Contempt in Breach of the Regulations and Instructions relating to His Majesty’s Service at Sea, Salvage, and Droits of Admiralty; be it therefore enacted, That in all Cases where a Ship or Vessel, or the Master thereof, shall come within the local Limits of any Vice-Admiralty Court, it shall be lawful for any Person to commence Proceedings in any of the Suits herein-before mentioned in such Vice-Admiralty Court, notwithstanding the Cause of Action may have arisen out of the local Limits of such Court, and to carry on in the same manner as if the Cause of Action had arisen within the said Limits.[58]

The Act also provided for the regulation of procedures and fees in the Courts by authorizing

His Majesty, with the Advice of His Privy Council, from time to time to make and ordain such Rules and Regulations as shall be deemed expedient touching the practice to be observed in Suits and Proceedings in the several Courts of Vice-Admiralty at present or hereafter to be established in any of His Majesty’s Processions Abroad, and likewise from time to time to make, ordain and establish Tables of Fees to be taken or received by the Judges, Officers, and Practitioners in the paid Courts.[59]

Consequently, on 23 June 1832, the King by an Order in Council authorized the Lords Commissioners of the Admiralty to carry into effect the Rules, Regulations and Tables of Fees made in pursuance to Act 2 Will.IV, c.51.[60] These Rules and Regulations specified, amongst other things, the manner in which the Court should be held; how actions were to be instituted and proceeded with; the kinds of actions which could be adjudicated in the Court; duties of the registrar, marshal and surrogates; records required as evidence of Court proceedings and how they should be maintained; and the procedures for appeals. Appendices presented the common forms to be used in actions, and listed the standard fees to be charged. The Rules and Regulations of 1832 provided, for the first time, a detailed account of the procedures to be adopted in Vice Admiralty Courts. Some changes were later made: for example, the additional Rules and Regulations of 1859 provided for the taking of vivâ voce evidence in the Court.[61] Nevertheless, the Rules and Regulations of 1832 provided the basis for proceedings in the Vice Admiralty Court for more than 50 years. Not until the passage of new Rules, Regulations and Fees in 1883 were substantial changes effected.[62]

The relationship of the Office of Chief Justice to that of Judge of the Vice Admiralty remained unclear. When Dowling succeeded Forbes as Chief Justice, he also became Judge of the Vice Admiralty Court under the terms of the commission to “Sir Francis Forbes and the Chief Justice for the time being”.[63] Mr Justice Willis, however, raised the objection that the Chief Justice “cannot act as Judge of the Vice Admiralty Court without coming within the perils of the 7 Section of the Charter of Justice of the Colony”,[64] which forbade the Chief Justice from holding any other office of profit. The Law Officers of the United Kingdom, J. Campbell and R.M. Rolfe, disagreed. They argued that “under the circumstances the Office of Judge of the Vice-Admiralty Court in New South Wales is incident to the office of Chief Justice of the Colony and is not ‘another office of profits or Emoluments’ within the meaning of the 7 Section of the New South Wales Charter of Justice”.[65]

Chief Justice Dowling then raised another objection:

After all that has occurred between His Honor Mr. Justice Willis and myself respecting the point raised by him touching the validity of my Commission as Chief Justice under the New South Wales Charter in consequence of my having acted on two or three occasions (though gratuitiously) as Judge of the Vice Admiralty Court under a Commission, directed to Sir Francis Forbes, and the Chief Justice of the Supreme Court for the time being it turns out that ‘for the present’ all difficulty is removed, inasmuch as the Commission in question which issued in the Reign of His Majesty George the Fourth, has never been renewed and consequently I never had any authority to act as Judge of the Vice Admiralty ... The omission on the part of the authorities at home to send out a new Commission has the effect of leaving the Colony without a Vice Admiralty Court, a circumstance which ought to be brought under their notice, although the cases have been and may continue to be few in which the Jurisdiction of the Vice Admiralty Court has, and may be involved.[66]

In the meantime, whilst the issue remained unresolved, Governor Gipps, in his capacity as Vice Admiral, appointed Dr. John Kinchela to act as his Deputy Vice Admiral and Judge of the Court “until the pleasure of the Crown should be made known”.[67] Subsequently, in 1841, a new commission was issued to Dowling and the Chief Justice “for the time being”.[68] Dowling, however, considered the Vice Admiralty work as “wholly unemolumentary, and in some degree burthensome”.[69]

Alfred Stephen, the next Chief Justice and Judge in Vice Admiralty, who was appointed 7 October 1844, apparently shared Dowling’s opinion and quickly divested himself of the responsibilities in Vice Admiralty. On 22 October 1844 Samuel Frederic Milford was appointed Deputy Judge with the approval of the Governor on the grounds that Alfred Stephen was “being temporarily incapacitated by the heavy process of business now depending in the Supreme Court of New South Wales from performing the duties of Commissary”.[70] Milford, who had previously acted as Deputy Judge for Dowling, was to hear and determine many cases in the Vice Admiralty Court before his demise in 1865.

Vice Admiralty Court 1845-1863

In 1845 the Legislative Council requested the Governor to have laid upon the table a return of the fees received by the Judge and Officers of the Vice Admiralty Court.[71] The return was subsequently made and Chief Justice Stephen, in an explanatory letter dated 10 October 1845, noted the situation of the Court:

these Fees are not under the control of any Colonial authority; but are received under a scale established in England, under the sanction of an Act of Parliament; and they are, in each case, the private property of the Judge or Officer receiving them. The Judge of the Court, you are aware, is the Chief Justice of the Colony, for the time being. I have never acted, however, under the Commission, nor do I conceive, that it is my duty to do so - certainly not, while a thoroughly competent and honourable Deputy, so well versed in the forms and practice of the Court, as the present Commissary, can be induced to fill the office.[72]

In the same year, the Vice Admiralty Court came under censure from many of the witnesses examined by the Select Committee on the Supreme Court Rules and Orders. Randolph John Want, for example, stated that:

I think the fees charged, and the expenses generally, so extravagant that they are calculated to frighten away masters of vessels from this Port; much extortion, to my knowledge, has been submitted to by masters and owners of vessels from a dread of going into it; it is a most expensive Court. ... [The remedy is] to prevent suing in the Vice Admiralty Court unless the sum exceeds thirty pounds; in the same manner as seamen are prevented by the 16th section of 7 & 8 Vic., c.112, in amounts under twenty pounds; I would compel them to go into the Police Court or the Court of Requests.[73]

In 1848 the Legislative Council received a petition “from certain Merchants, Shipowners, Masters of Vessels, and others interested in the Commerce of the Port of Sydney, praying the Council to adopt such measures as to them shall seem proper to obtain the revision, or modification, of the Imperial Act 2 Will.IV, cap.51”.[74] In consequence, and possibly as a result of the adverse comments made by witnesses before the 1845 Select Committee, the Parliament passed an Act 11 Vict., c.46, assented to on 15 June 1848, which sought to prevent frivolous and vexatious arrests of vessels and their masters by process issued out of the Vice Admiralty Court. The Preamble cited that great delay, inconvenience and expense had been incurred by such arrests and rendered the arresting parties liable to all costs should a writ of prohibition be obtained against them from the Supreme Court. [75]

Governor Fitzroy found no objection to the Act, as it did not appear contrary to any imperial enactment and “the objectionable practice having been frequently resorted to by some of the unscrupulous practitioners of the Court, of arresting ships or the commanders thereof on some false plea, just on the eve of their departure from the Colony, in the hope that, rather than incur the expense of the detention of the ship, their unjust demands would be satisfied”.[76]

In 1858 the subject of the jurisdiction of the Vice Admiralty Court was again brought into dispute with the proposed resignation of Alfred Stephen from the office of Judge of the Vice Admiralty Court.[77] In his letter to Governor Denison, Stephen stated that:

It has never been possible for me to discharge, except occasionally, in the absence of Mr. Justice Milford, the duties of the office, and those which devolve on me as Chief Justice, Your Excellency is aware, are by no means likely to diminish in future years ... I am anxious to avoid, except temporarily, the responsibility of appointing another Deputy and the necessity of attending to references and other matters connected with the Court, which I do not feel competent to (sic) satisfactorily determine. Until I can receive a reply to this communication, I shall continue to hold the office; but not afterwards.[78]

At the same time, Stephen raised the question of the original Letters Patent establishing the Court, of which no record could be found in New South Wales, but which needed to be re-issued due to the shrinking of the limits of the Court’s jurisdiction:

King George Sound and Western Australia, are not within the present limits; and never were within the jurisdiction of the Court. Of South Australia, only a portion was included. It is not clear, whether Norfolk Island or New Zealand ever was included. A distinct Vice Admiralty Court, however has been within the last few years erected in Tasmania and in Victoria; and I believe, tho’ I am not sure, (neither of the Commissions having ever been communicated to me) that the latter now has jurisdiction, as it naturally would have, over all places Westward of it, and perhaps New Zealand, has a separate Court also.[79]

Stephen obviously did not realize that in Despatch No.30 of 7 March 1857 the subject of the Vice Admiralty Court established in Victoria by Letters Patent of 21 February 1851 had been raised; and that on 6 February 1857 Letters Patent had been passed for the purpose of “interdicting the Vice Admiralty Court of New South Wales from exercising jurisdiction in the Colony of Victoria”.[80]

The Governor, responding to Stephen’s questions and proposals, submitted the problem to the Law Officers of the Colony for their opinion and then to the Executive Council for consideration. The Law Officers, Alfred P. Lutwyche and W.B. Dalley, reported their opinions on the jurisdiction of the Court, appointment and remuneration of officers, and on the arrest and detention of vessels under its protest.[81] Referring to complaints previously received concerning the jurisdiction and procedures of the Court, the Law Officers reported:

We do not perceive any advantage which can be derived from the continuance of the Vice Admiralty Court sufficient to counterbalance the inconveniences which are inseparable from its existence ... The fees of the Court are small, and the business so inconsiderable ... The forms of procedure are antiquated, and there are probably not a half a dozen individuals in the legal profession who are even moderately familiar with Admiralty practice. And the costs of proceedings in the Court are so large as to have evoked on several occasions, very loud expressions of public discontent. There seems to us to be no reason why the Supreme Court of New South Wales should not exercise in the Equity and Common Law branches of its jurisdiction, the same powers over all Civil, as it now exercises over all criminal matters.[82]

Moreover, they commented, the proposed resignation of Chief Justice Stephen from the Judgeship was itself a complex matter:

The Judge of the Vice Admiralty Court is by the terms of the original Commission ‘the Chief Justice on the establishment of New South Wales for the time being’ and it seems to us therefore that the acceptance of the one appointment involves the acceptance of the other, and conversely, that the resignation of the office of Judge of the Vice Admiralty Court would lead to the resignation of the Chief Justiceship.[83]

The Executive Council concurred with the opinion expressed by the Crown Law Officers on the jurisdiction of the Court and advised the Governor to “bring the subject under the consideration of the Right Honourable the Secretary of State for the Colonies, with a view to such measures being taken, as may in the estimation of Her Majesty’s Government be advisable, in pursuance of the views and recommendations above set forth”.[84] Governor Denison also agreed and recommended to Lytton that the jurisdiction of the Vice Admiralty Court be transferred to the Supreme Court:

It appears to me that this transfer would tend to carry out the system of simplification of Law proceedings which has been characteristic of the Imperial Legislation for several years past; - that it would be acceptable to the Colonies, which have only delayed until now the application for such a change on account of the small number of cases which have hitherto been brought before the Court. As the trade of the Colonies increases, so will the evils arising from the expense and delay caused by the forms of procedure of the Admiralty Court, which are even now felt severely.[85]

In his reply Newcastle enclosed the opinion of Rotheray, the Registrar of the High Court of Admiralty, who spoke on the behalf of Dr. Lushington, the Judge:

But as to whether the Office of Judge of the Vice Admiralty Court should be held by a different person from the Chief Justice, I am desired by Dr. Lushington to state that in his judgment the separation of the two Offices would not conduce to the best administration of Justice. Though a Judge of a Vice Admiralty Court may not frequently have to dispose of cases of great difficulty or importance, yet large powers are entrusted to him; and upon some occasions much knowledge and experience may be requisite to an adequate discharge of his duties ... There is a fundamental difference as to the subject matters over which Courts of Equity and Common Law exercise jurisdiction, and with which Courts of Admiralty deal - Courts of Equity and Common Law for the most part proceed in personam - Courts of Admiralty in rem. The proceedings in the latter Courts which are governed by the Law Maritime of the civilized World, involve the interests of absent persons and of Foreigners, and to do justice in such case the system of procedure must differ from that which ordinarily prevails in Courts of Equity or Common Law.[86]

In addition, the fees of the Vice Admiralty Court were discussed with particular emphasis placed on the 4/- a day allowed that marshal for arrests of vessels; the suggestion was made that perhaps a new commission could be issued defining the limits in which the Court could exercise jurisdiction; and an exemplification of the original Letters Patent of the Vice Admiralty Court was enclosed.[87]

Newcastle foresaw that the problems raised by Stephen were not in reality solved but “For the present I cannot do more than thus apprise you of the present views of the Admiralty Authorities. But the question shall be borne in mind”. He also requested Stephen “to reconsider his intention of resigning that Office pending the consideration of this subject”.[88]

Although later correspondence in which the jurisdiction and procedures of the Vice Admiralty Court were minutely discussed, no immediate changes resulted and Stephen remained in the office of Judge.[89]

Vice Admiralty Court 1863-1890

In 1863 an Act was passed by the Imperial Parliament - 26 Vict., c.24, the Vice Admiralty Courts Act, 1863. The Circular Despatch which transmitted the Act pointed out that:

The attention of Her Majesty’s Government has frequently been called to the difficulties which have been found to exist in the appointment of Officers to the Vice-Admiralty Courts in the British Colonies and Settlements, and to the advantages which would result from the adoption of some measure for remedying these difficulties. The contemplated arrangement could only be effected under the authority of an Act of Parliament.[90]

Although the jurisdiction of the Vice Admiralty Courts was redefined in this Act, other important provisions dealt with the appointment of officers of the Court.

by the 3rd Section of the Act, on a Vacancy occurring in the Office of Vice-Admiral, the Governor of the Colony assumes that Office as a matter of course. By the 4th Section the Office of Judge of the Vice-Admiralty Court devolves at once on the Chief Justice or Principal Judicial Officer, until other provision shall have been made by the Admiralty; and with the same proviso, the Registrar and Marshal of the Court may, by the 5th Section, be appointed as vacancies occur, by the Judge, with the approval of the Governor.[91]

The 7th Section, nevertheless, reserved the right of the Admiralty of making appointments to any of the officers of the Court while Section 8 validated the past proceedings of any persons who acted as Judge, Registrar or Marshal without formal appointments from the Admiralty.[92]

Sections 10 and 11 of the Act redefined the jurisdiction of the Courts, the purpose of Section 10 being “to define anew the Jurisdiction of the Vice-Admiralty Courts, and to assimilate it, with certain exceptions, to that now exercised by the High Court of Admiralty of England” which had had its jurisdiction extended by 3 & 4 Vict., c.65 and 24 & 25 Vict., c.10.[93] In addition to the original jurisdiction as specified in 2 Will.IV, c.51, s.6, Vice Admiralty Courts were given jurisdiction in claims for masters’ wages and disbursements; claims in respect of salvage of not only any ship but also of life or goods; claims for towage; claims in respect of any mortgage where the ship had been sold by a decree of the Court, and the proceeds under its control; claims between owners of any ship registered in the possession in which the Court was established relating to the ownership, possession, employment or earnings of the ship; claims for necessaries supplied; together with claims in respect of the building, equipping or repairing “within any British Possession of any Ship of which no Owner or Part Owner is domiciled within the Possession at the time of the work being done”.[94] Section 12, moreover, reiterated the right to act in the “Jurisdiction conferred upon any Vice Admiralty Court by an Act of Parliament in respect of Seizures for Breach of the Revenue, Customs, Trade or Navigation Laws, or of the Laws relating to the Abolition of the Slave Trade, or to the Capture and Destruction of Pirates and Piractical Vessels or any other Jurisdiction now lawfully exercised by any such Court”. Finally, Section 22 stated that “The Appeal from a Decree or Order of a Vice Admiralty Court lies to Her Majesty in Council; but no Appeal shall be allowed, save by Permission of the Judge, from any Decree or Order not having the Force or Effect of a definitive Sentence or final Order”.[95]

This Act was amended by 30 & 31 Vict., c.45, The Vice-Admiralty Courts Act Amendment Act, 1867 which was transmitted to the Colony in a Circular Despatch dated 31 August 1867. This new Act was enacted in response

to some difficulties and inconveniences which have been found to arise in several of the British Colonies and Settlements from the absence of the efficient machinery for the administration of the jurisdiction of the Vice Admiralty Courts ... and especially from the absence of any power in the Judges of those Courts to appoint Deputies who may hold Vice Admiralty Courts in different parts of the same Colony.[96]

By Section 5 of this Act the Judge of the Court (by Section 3 declared to be the person lawfully appointed by the Admiralty, or in default of such appointment, the Chief Justice or Principal Judicial Officer or the person acting in that capacity) could, with the approval of the Governor, appoint Deputy Judges to “assist or represent him in the discharge of his judicial powers”.[97] Section 6 gave the Deputy Judges powers to act and “by Section 9 the Judge of the Admiralty Court may direct when and where the Deputy Judge shall sit, and generally make such arrangements as shall seem proper for the division and despatch of the business of the Court. By Section 12 the Judge has full powers given him to appoint Deputy Registrars and Marshals”.[98] Nevertheless, by Section 13 the Admiralty retained the power to revoke the appointment of any deputy judge, deputy registrar or deputy marshal appointed under the terms of the Act.

The modifications made in the appointment of officers was followed by a new Code of Rules which was transmitted in a Circular Despatch dated 22 January 1880. These proposed Rules had been prepared by a Committee, under the presidency of Mr. Rotheray, former Registrar of the High Court of Admiralty with the purpose of

revising the procedure and scales of fees in the Vice Admiralty Courts in the Colonies with the view to the establishment of an uniform system in all, based on the present practice of the Admiralty Division of the High Court of Justice ... The Committee state that the Rules are based on the existing practice of the Admiralty Division of the High Court of Justice in this country but with such alterations as seem calculated to render the proceedings more simple and expeditious. Among the most important it is proposed that, the particulars of the claim being endorsed in all cases on the Writ of Summons, which is the first step in an action, the Pleadings should be dispensed with except where the Judge shall otherwise order.[99]

The above Rules were very detailed and outlined all the procedures of the Court, including the nature of the records to be kept and the kinds of actions which could be instituted. In his reply of 26 July 1880, Loftus reported that the Government and Judge Commissary approved of the “whole of the Rules in question”.[100] However, the new Rules, and Tables of Fees, were not established until an order of the Queen in Council dated 23 August 1883 which came into force on 1 January 1884.[101]

In the meantime a draft “Bill to extend the jurisdiction of Vice-Admiralty Courts, and otherwise to amend and consolidate the Vice-Admiralty Courts Acts, 1863 and 1877 (sic)” was transmitted to the Colony in a Circular Despatch dated 16 February 1883. The Bill had the purpose of

assimilating the jurisdiction of the Vice-Admiralty Courts to that possessed by the High Court of Admiralty, for giving to these Courts the position of Courts of Record, for enabling them to enforce their own process, and for providing means for establishing a summary and inexpensive procedure to deal with cases of small value, a want which has been seriously felt in some of Her Majesty’s possessions.[102]

W.B. Dalley, the Attorney General of New South Wales, thought the Bill was valuable, necessary and free from objection. He particularly approved of its innovations:

constituting the Vice-Admiralty Courts Courts of Records - extending their jurisdiction, giving effect to their desires enforcing their orders, investing them with summary jurisdiction and providing for the taking of evidence in certain cases by declaration in lieu of oath, and for the consequent punishment.[103]

Although Governor Loftus transmitted this opinion to Derby and indicated that the Government approved of the Bill, no further action was taken in implementing the Bill.[104]

A draft of another Bill, together with a printed copy of a Memorandum explaining the objects and scope of the Bill, was transmitted to New South Wales in March 1885. This “Bill to Amend the Law respecting the exercise of Admiralty Jurisdiction in Her Majesty’s Dominions and elsewhere out of the United Kingdom” was drafted to alleviate the anomalies of the colonial judicial system.

The court [Vice Admiralty Court] is established by a commission from the Admiralty, and is an imperial and not a colonial court ... This state of things is unsatisfactory in many ways, as, side by side with the Colonial Civil Court, it maintains another court with a separate judge, separate officers, a separate procedure, and separate fees, and although in fact the same persons are usually judges and officers both of the colonial and of the Vice-Admiralty Court, yet the fact that they exercise jurisdiction by virtue of different offices leads to difficulties ... difficulties are also increased by the fact that the jurisdiction of the Vice-Admiralty Court and that of the Colonial Civil Court are to some extent concurrent ... The main idea of the Bill is to confer on the chief court of every colony the whole of the civil Admiralty jurisdiction of the High Court of England, so that the Admiralty jurisdiction may be exercised by the court, and not merely by a member of the court in his individual capacity.[105]

When this draft was passed to James Martin, the Chief Justice, for comment, he condemned it as unnecessary and too complex:

the suggested alterations are entirely uncalled for and that from their complexity they would give much unnecessary trouble and be very mischievous in their operation. The Judges of this Court cannot approve of alterations which would impose duties upon them of so troublesome a character as the proposed Act of Parliament would create. The whole Bill seems to have been framed in entire forgetfulness or disregard of the position in which this Court and our Legislature stands as regards the Imperial Government ... No portion of this suggested Legislation is necessary as there is no difficulty in administering Justice in the Vice Admiralty Court now.[106]

The colonial government adopted Martin’s view and the Governor used it as the basis of his reply to the Earl of Kimberley whereby New South Wales rejected the proposed legislation.[107]

Vice Admialty Court 1890-1911

On 25 July 1890 the Colonial Courts of Admiralty Act, 1890, which was based on the draft Bill of 1885, was assented to.[108] It was to take effect on 1 July 1891 in all British Colonies except those specified in the First Schedule - namely, New South Wales, Victoria, British Honduras, and St. Helena, those colonies which had originally objected to the Bill of 1885. For those colonies which were excepted by the Act, Section 16(1)(a) provided that the Act would come into force only by an Order in Council, on the day named in that behalf in the Order. Where the Act took effect, the Vice Admiralty Courts ceased to exist and the whole of the Civil Admiralty Jurisdiction of the High Court of England was conferred on the Chief Court of the Colony.

The jurisdiction of the Vice Admiralty Courts and the Colonial Courts of Admiralty was subsequently affected by the Prize Courts Act, 1894 (57 & 58 Vict., c.39). This Act provided that a prize court could be commissioned and its procedures regulated in any British possession at any time, including peacetime, under authority of the Crown or the Admiralty in England.[109] Jurisdiction could be vested either in a Vice Admiralty Court or a Colonial Court of Admiralty, within the meaning prescribed in the Colonial Courts of Admiralty Act, 1890, provided that it was not exercised until the actual proclamation of war in the relative possession.[110] In 1899 a royal warrant required such Courts, on the outbreak of war, to take cognizance of, and report to the Admiralty on, all matters arising out of the hostilities and capable of being determined under prize jurisdiction.[111]

The Commissioners executing the Office of Lord High Admiral issued a warrant, dated 17 August 1899, to the Vice Admiralty Court of New South Wales authorizing the Court upon the proclamation of war

to take cognizance of and judicially to proceed upon all and all manner of Captures Recaptures Seizures Prizes and reprisals of all Ships Vessels and Goods which shall on the outbreak of any such war have been already seized and taken and which shall thereafter be seized and taken and which are or shall be brought within the limits of the said Court and all other matters of prize falling within the jurisdiction of the said Court.[112]

Although this warrant extended the jurisdiction of the Vice Admiralty Court considerably, it does not appear to have ever been exercised.

In 1909 the question of the transfer of jurisdiction to the Supreme Court was reopened by Crewe who requested that the Government would “be so good as to take the matter into their consideration, and to decide whether or not they are prepared to permit the Colonial Courts of Admiralty Act, 1890 to be applied to the Supreme Court of New South Wales”.[113] Chief Justice Cullen whose opinion was solicited, reported in favour of the proposed change:

In my own opinion, in the light of the information now at hand, though I am satisfied that so far as the functions of a Court of first instance are concerned the present tribunal has administered Justice in an effectual way, the disadvantages of the system taken as a whole warrant the proposed change. It appears to me also that apart from any specific disadvantages, the existence of such a tribunal, unconnected with our State Courts, and constituted in accordance with conditions which have long since passed away, presents an anomaly in our jurisprudence and stands in the way of a much-needed simplification and modernisation of our judicial system.[114]

Subsequently, in a Minute dated 19 October 1910 the Premier informed the Governor that the Government agreed to the provisions of the Colonial Courts of Admiralty Act, 1890 being applied to New South Wales.[115] The Colonial Office was accordingly advised to this effect and on 4 May 1911 the necessary Order in Council was issued, which was to come into force on 1 July 1911.[116] The Vice Admiralty Court of New South Wales thereupon ceased to exist and the Supreme Court became a Colonial Court of Admiralty, the jurisdiction being exercisable by the Chief Justice for the time being or by the judge nominated by him.

Glossary of terms used in the Vice Admiralty Court records

allegation - assertion, declaration or statement of a party to an action setting out what he expects to prove

appearance - a coming into court as party to a suit, whether as plaintiff or defendant

arrest - seizure or detention of a vessel once the marshal has served the writ in an action (in rem)

bottomry - a contract by which the owner of a ship borrows for the use, equipment, or repair of the vessel, for a definite term, and pledges the ship (or the keel or bottom of the ship) as security; it being stipulated that if the ship is lost in a specified voyage, or during the limited time, by any of the perils enumerated, the lender shall lose his money

caveat - a formal notice or warning given by an interested party to a court or judge against the performance of certain acts within his power and jurisdiction

collision - the act of ships or vessels striking together

counterclaim - a claim presented by a defendant in opposition to or deduction from the claim of a plaintiff

in rem - proceedings against a ship, her cargo and freight or against a ship or cargo only

instance court - that part of the court of admiralty which exercises all the ordinary admiralty jurisdiction, with the exception of prize cases

interrogatories - a series of formal written questions

letter of marque - a commission given to a private ship by a government to make reprisals on the ships of another state

libel - a written statement by the plaintiff setting out the cause of action and the relief he seeks to obtain in the suit

monition - summons to appear and answer; issued on the filing of the libel

necessaries - things that are fit and proper for the service in which a ship is engaged, and which the owner would have ordered, if present (eg. anchors, riggings, repairs, victuals)

possession - detention of a vessel by virtue of a just title and under the conviction of possessing as owner

preliminary act - a document stating the time and place of a collision between vessels, the names of the vessels and other particulars, required to be filed by each solicitor in actions for damages by collision, unless the court or judge otherwise orders

prize - a vessel or cargo, belonging to one of two belligerent powers, apprehended or forcibly captured on sea by a war vessel or privateer of the other belligerent, and claimed as enemy’s property and therefore liable to appropriation and condemnation under the laws of war

prize court - a court having jurisdiction to adjudicate upon captures made at sea in time of war, and to condemn the captured property as prize, if lawfully subject to that sentence (A special commission in time of war is issued to the judge of an admiralty court to enable him to hold such a court)

protest - a written statement by the master of a vessel to the effect that damage suffered by a ship on her voyage was caused by storms or other perils of the sea without any negligence or misconduct on his part

salvage service - a service voluntarily rendered to a vessel in need of assistance, designed to relieve her from distress or danger, for which a salvage reward is allowed by maritime law

subtraction of wages - the withholding of wages which by law a man is entitled to

summons - a writ directed to the marshal requiring him to notify the person named that an action has been commenced against him in the court where the writ issues, stating that he is required to appear, on a day named, and answer the complaint in the action

towage service - a service rendered to a vessel, by towing, for the purpose of expediting her voyage, without reference to any circumstances of danger

Appendix A - Related series in other record groups

I. Attorney General

Special bundle: Seizure of the schooner “Daphne” for alleged kidnapping of natives in the Pacific Islands, 1869-70 [5/4700.4]
This bundle comprises correspondence relating to the schooner “Daphne” and includes opinions of W. Manning, the Attorney General, on the question of procedures to be adopted in bringing the case to trial in the Vice Admiralty Court, responsibility of the Governor as Vice Admiral in such cases, and responsibility for costs of the trial in the Vice Admiralty Court. A report by Alfred Stephen, the Judge of the Court, is also included.

II. Attorney General and Justice

Special bundle: Prize Courts and Courts of Admiralty, 1886-1917, 1939-40 [7/7197.2]
This bundle includes copies of despatches from the Secretary of State relating to 57 & 58 Vict., c.39, “Prize Courts Act, 1894” together with a copy of the warrant which enabled the Vice Admiralty Court to act as a prize court. Other correspondence relates to the transfer of jurisdiction from the Vice Admiralty Court to the Supreme Court with the implementation of the “Colonial Courts of Admiralty Act, 1890” in New South Wales on 1 July 1911.

III.Colonial Secretary

Main series of letters received, 1788-1826 [4/1719-1820, 9/2736]

Special bundle: Papers re ship “Surry”, 1814 [4/1731]
These papers are comprised mainly of the records of the Vice Admiralty Court in the case of the ship “Surry”, a claim for salvage by Thomas Pitcher, master of the “Broxbornebury”. They include: petitions to Ellis Bent, Judge of the Court; warrant to the Marshal to arrest the ship; examination of witnesses; minutes of proceedings; together with the final decree of the Judge.

Letters received, 1826-1934
(various locations, see Guide to the State Archives: Colonial Secretary Part II Correspondence).
The bulk of the correspondence received relating to the Vice Admiralty occurred in the period 1840 to c.1860 and was thereafter intermittent. This series ceases to be relevant after 1 July 1911 when the Vice Admiralty Court became defunct.

Indexes and registers to letters received, 1826-1921 [5/2336-2661]; Reels 2929-2973 & 2563-2619 for the period 1826-1900.
This series is irrelevant after 1 July 1911 when the Vice Admiralty Court ceased to exist.

Copies of letters to the judicial establishment, the Sheriff and the Coroners, 6 Oct 1826 - 15 Oct 1908 [4/3736-3775]

IV. Governor

As an Imperial Court, the Vice Admiralty Court received directives, instructions, imperial bills and acts changing its structure or procedures as well as rules, regulations and tables of fees via despatches from the Secretary of State. Although the full series titles are given, the series are irrelevant after 1 July 1911 when the Vice Admiralty Court ceased to exist.

Schedules of despatches received, 1821-37, 20 June 1901-17 April 1914 [4/1404-1405, 7/4117]

Indexes and registers to despatches from the Secretary of State, 13 Oct 1837-30 Mar 1899, 11 May 1914-29 Sep 1949 [4/1605-1614, 7/4118-4120]

Despatches, circulars and cables from the Secretary of State and the Under Secretary, 6 Apr 1787-27 Jun 1806, 13 May 1809-Dec 1935, and carbon copies of despatches to the Secretary of State, c.1906-35 [4/1615-1618, 4/1281-1403, 7/1524-1623]

V. Supreme Court

Admiralty Jurisdiction

Case papers, 1911-48, 1955 [2/8615-25]

Prize papers, 1914-19, 1940 [2/8626-30]

Chief Justices’ letterbooks, 1824-65, 1884-1905 [4/6651-54, 4/6657, 7/3867-68; photocopies at COD89A-90]

Newspaper reports of judgments, 1844-52, 1857-1906 [7/3749-53]

Judges’ Notebooks

F.M. Darley, C.J.
Vice-Admiralty, 1886-1908 [2/2910-16]

J. Dowling, C.J.
Equity and Vice-Admiralty, 1841-44 [2/3436-59]
Vice-Admiralty, 1838 [2/3460]

P. Faucett, J.
Vice-Admiralty, 1873 [2/3882]

J. Martin, C.J.
Vice Admiralty, 1874-86 [2/6180-81]

S.F. Milford, J.
Admiralty and Ecclesiastical, 1862-64 [2/6221]

W. Owen, J.
Vice Admiralty, 1897-1907 [2/6358-65]

P.W. Street, J.
Vice-Admiralty (Motions and Suits), 1908-11 [3/9556 part-9557 part]

W.C. Windeyer, J.
Vice-Admiralty, 1879-91, 1894-95 [2/7548-53]

Appendix B - Copy of the Commission for the Establishing a Vice Admiralty Court in New South Wales

George the Third by the Grace of God of Great Britain, France and Ireland, King, Defender of the Faith and so forth, To Our right trusty and well beloved Cousin and Councillor Richard Viscount Howe, Our trusty and beloved Charles Brett and Richard Hopkins, Esquires, Our trusty and well beloved John Jefferies Pratt, Esquire, (commonly called Lord Viscount Bayham) Our Trusty __”__ beloved John Leveson Gower Esquire, Our trusty and well beloved Henry Bathurst, Esquire, (commonly called Lord Apsley) and Our Right trusty and well beloved Charles George Baron Arden of Our Kingdom of Ireland Greeting: Whereas Our Commissioners for executing the Office of Our High Admiral of Our Kingdom of Great Britain and Ireland did by a Memorial dated the twenty seventh day of March last past which was presented and read to us in Council the third day of April instant set forth, That they having been made acquainted that we had been pleased to appoint Captain Arthur Phillip to be Captain General and Governor in Chief of the Territory called New South Wales extending from the Northern Cape or extremity of the Coast called Cape York in the latitude of ten degrees thirty seven minutes south to the Southern extremity of the said Territory of New South Wales or South Cape in the latitude of forty three degrees thirty nine minutes south and of all the Country inland to the Westward as far as the one hundred and thirty fifth degree of East Longitude reckoning from the --”-- meridian of Greenwich including all the Islands adjacent in the Pacific Ocean within the latitudes aforesaid of ten degrees thirty seven minutes South, and forty three degrees thirty nine minutes south and that it was Our pleasure they should grant him such powers as have been usually granted to the Governors of Our Colonies in America. They begged leave to represent to Us, that the powers usually granted by their Board to the Governors of Our Colonies in America are those of Vice Admiral but that they were empowered by their Commission to constitute Vice Admirals’ at such places only where Vice Admirals have been usually appointed by the High Admiral and therefore submitted it to us whether it might not be necessary that they should be empowered to appoint a Vice Admiral and also a Judge and other Officers requisite for a Court of Vice Admiralty within the territory called New South Wales. And whereas We having taken the said Memorial into our Royal consideration are graciously pleased to approve of what is therein proposed Know ye therefore that We have authorised and empowered and by these presents do authorise and empower you Our said Commissioners for executing the Office of Our High Admiral of Great Britain and Ireland or any three or more of you to constitute and appoint a Vice Admiral and also a Judge and other Officers requisite for a Court of Vice Admiralty, within the said Territory called New South Wales in like manner as Vice Admirals Judges and other proper Officers of such Courts have been constituted by Our High Admiral or Commissioner for executing the Office of Our High Admiral of Great Britain and Ireland for the time being in places where they have been usually heretofore appointed. And Our Will and pleasure is that in the Commissions which you are hereby authorised and empowered to issue as aforesaid you cause to be inserted all such clauses as are usual in Commissions of the like nature and as you shall think fit and necessary for making the said intended Commissions most firm, valid and effectual in the Law. And lastly Our will and pleasure is that these Our Letters Patent or the Inrollment or --”-- exemplification thereof shall be unto you Our said Commissioners a full and sufficient Warrant and discharge for your acting and doing in the premises notwithstanding any omission, imperfection, defect, matter, cause, or thing whatsoever to the contrary thereof in anywise nothwithstanding. In witness whereof we have caused these Our Letters to be made patent Witness Ourself at Westminster the twelfth day of April in the twenty seventh year of Our Reign.

By the King himself

(signed) Yorke

(Enclosure to Despatch No.53, Newcastle to Denison, 17 June 1859, Despatches, Circulars and Cables from the Secretary of State and the Under Secretary, [4/1349])

Appendix C - Officers of the Vice Admiralty Court of New South Wales*

I. Judges

II. Deputy Judges

III. Surrogates

IV. Registrars

V. Deputy Registrars

VI. Marshals

VII. Deputy Marshals

* Because of the difficulty of ascertaining all the names of officers of the Vice Admiralty Court, including their dates of appointment, this list is probably incomplete.

Appendix D - NRS 14493 Case papers, 1826-1911

See the item list

Appendix E - Chronological List of Ships and other defendants, 1826-83*

This list is based upon NRS 14493 Case papers, 1826-1911 (part) and references in all other extant Vice Admiralty Court records excluding the Index to Vice Admiralty Court papers.

Appendix F - Index to Ships and other defendants, 1826-1911