THE SYMBOL OF ADMIRALTY JURISDICTION
AN ADDRESS BY RIGHT HONOURABLE SIR (FRANK) BOYD MERRIMAN
Tuesday, September 3rd, 1935.
The Right Honourable Sir (Frank) Boyd Merriman was the guest speaker at a special meeting of The Empire Club of Canada held on Tuesday, September 3, 1935, in the Royal York Hotel, Toronto, Canada. The speaker was introduced by Mr. J. H. Brace, President of The Empire Club.
MR. J. H. BRACE: At our head table today we have a number of distinguished members of the Bench and the Bar who have come to do honour to our guest speaker today. We welcome them to our midst.
This is a special meeting and it is the first meeting at which I have presided. It has been called to take advantage of Sir Boyd Merriman's presence in this city.
Sir Boyd Merriman is President of the Probate, Divorce and Admiralty Division of the High Court of Justice in England.
My legal friends advise me that our system of appointment of judges is possibly subject to some criticism. In
Canada, judges are appointed for no special work. They are presumed to know all of the law and to be able to acting any case. In England, judges are specialists.
As you know, our honoured guest presides over three special branches of the Court. It has generally been accepted that in our life there are three milestones - birth, marriage and death. In recent years there has been a fourth dimension added to some extent, more in some countries than in others, and you will note that Sir Boyd Merriman is presiding over the Court having to do with two of these four major events-divorce and marriage. He also presides over the Court having to do with shipping. These three are rather strange bedfellows. I don't know just what the answer is to such a combination.
Sir Boyd is returning from a trip across Canada and possibly had some of us been making that trip, keeping in mind the recent election in the West, when we got back over the Rocky Mountains we might have destroyed the rest of our transportation and decided to live there where we could live in happiness and without worry for the future.
However, our speaker today is going back to a country which has shown definitely that it is going into better times and a country which has cleared up many Of the difficulties which are still confronting us in Canada. Sir Boyd has had a broad experience in many lines of activity. He is, I know a very gifted speaker and we will appreciate hearing from him on any subject that he cares to talk to us about.
I have very much pleasure, Gentlemen, in introducing to you today, the Honourable Sir Boyd Merriman of England.
RT. HON. SIR BOYD MERRIMAN: Mr. President, My Lords, and Gentlemen: It did not need the reminder of a voyage in the steamship, "Empress of Britain," that glorious example of the enterprise Of Canada, to remind one that Canada is faithful to the British tradition of the sea. And I don't think that you will regard it as wholly inappropriate if the latest in succession of those judges who have for centuries exercised the Admiralty jurisdiction in England were to speak for a few moments today to a gathering of representatives of all sections of Canadian thought of the emblem of the Admiralty jurisdiction, the silver Oar of the Admiralty which is placed On the Bench when the judge takes his seat.
I need scarcely say I am not going to speak on this subject as if it were a purely legal matter, but to use this symbol of the Admiralty jurisdiction as the text for what I am afraid will be an all too slight address on the history of that jurisdiction.
Now, the Admiralty, as you know, is a branch of the Royal prerogative. The very name, derived from the root `amir' or `emir,' is symbolic of that, and the silver ear is symbolic of the authority of the Lord High Admiral who, whether he exercises that office individually, or whether it is, as it now is and has been for a long time, in Commission, is the representative of the Crown in the Admiralty.
In 1840, or a hundred years ago, the High Court of the Admiralty was definitely established by Act of Parliament, and in 1875 the Admiralty Court became part of that group of jurisdictions to which your President has referred. But from the time of Edward, the Third, that is six centuries, there has undoubtedly been a Lieutenant judge of the Lord High Admiralty whose duty it was to administer justice on behalf of the Lord High Admiral. So, Gentlemen, when the Admiralty judge takes his seat, preceded by this silver oar, about which r am going to speak, just as the mace is the symbol of authority in a House of Parliament or a house of representatives, so this silver oar is the visible symbol of the authority to administer justice, not according to the laws civil, not according to the common law of England, but according to the ancient customs of the sea, as modified, of course, by statutes, international conferences, and so forth.
It may be of interest in passing to note that one of my friends of the Canadian Bar Association, the other day told me that quite recently he had had occasion to go to the Federal Court of Philadelphia and there in one of the courts he observed before the judge a silver oar. Asking how that came to be there and what the significance of it was, he was informed that that was the Admiralty judge and that this oar had been in use in that Court for many years before the American independence and had remained in use ever since. (Laughter.)
Now, I am going first to describe, as best I can, the oar itself and then to speak for a few moments about some of the features from which its history is to be deduced. Now, imagine what in effect is the old form of canoe paddle or steering oar with a blade elongated, diamond-shape, about a foot long and with a stem about two feet, three, divided into three sections by rings, with a fairly substantial butt to the shaft. The whole is of silver. Now, on the blade there are four emblems. I am going to describe them first and then come back to their significance afterwards.
At the point of the blade there is an arched crown embossed on the face of the blade. The central arch has been cut away and this was done by somebody at some unknown time to enable a more recent modern crown to be engraved on the blade itself within the arch of the old crown. Immediately below that and as it were across the widest part of the oar, are the arms of England, quartered with the arms of France, with the unmistakable supporters of it, Henry the Seventh's arms. There is no question at all that those arms are Henry the Seventh's own group of arms.
Under that is a ducal coronet surrounded by the garter and that is the coronet of William the Fourth, when he was still Duke of Clarence. He was, in fact, as I will emphasize in a moment, the last individual to hold the office of Lord High Admiral. It merged again with the Crown when he acceded to the throne.
Again, below that and at just about the point where the blade joins the stock, is the Admiralty anchor which is actually the emblem of the Admiralty. This anchor is invariably reproduced with the cable twisted around the stock. For that reason, the irreverent seaman invariably talks of the Admiralty Court as being "held with the sign of the fouled anchor."
Coming to the shaft on the top section there is the silver assay mark of George the Third, which fixes the date of that particular piece of silver as being somewhere between 1784, when that particular mark was first embossed, and 1820, when, of course, George the Third, ceased to reign.
On the lower section there are three assay marks, one the leopard's head which is the assay mark of the Goldsmiths Company, the King's mark - the lion passant - and the third, a letter of a particular year, or signifying a particular maker, the record of which is lost; and finally, engraved on the butt of the stock there are the words, "Jasper Swift, Marshal of the Admiralty."
Now, this oar, as I have told you, is carried into Court when the Judge sits, by the Admiralty Marshal, and is the emblem of his authority to arrest any ship against whom it is alleged that there is some claim.
Now, there are the actual marks upon the oar itself. A curious thing is that there is, so far as is known, no written record whatever of the history of this oar and, therefore, its history and the history of the Admiralty jurisdiction has to be deduced from these things which I have described upon the face of the oar itself and I will just go through what is to be inferred from these marks and I will take them chronologically, but going backwards.
Now, the latest mark is the mark of William the Fourth, the ducal coronet and garter of William the Fourth, while he was still Duke of Clarence and the last individual Lord High Admiral. Incidentally, he is the only royal duke who has been Lord High Admiral.
As you know, nowadays the office is in Commission and what we call the Lords of the Admiralty, the people who rule the navy, are themselves known as the Lord's Commissioners for executing the office of Lord High Admiral.
Now, next is the arched crown at the point of the blade. It was a shocking act of vandalism - whoever perpetrated it - to cut out the centre arch of this crown, but I dare say it wouldn't be too rash a guess if one supposed that that was done when William the Fourth became king, in order that his royal arms might be engraved upon the blade.
Then, there is the assay mark of George the Third. It is quite impossible, of course, to suppose that that represents the date of the oar itself. There is much too much that is earlier upon the oar to suppose that, but that section in which the assay mark occurs is the section which would rest upon the shoulder of the Admiralty Marshal as he carries the oar. The probability is that this had warn away in the process of time and that the silver had to be repaired, with the result that the reigning monarch's assay mark was put upon it. And that that is not a fanciful suggestion is shown by the fact that in the Duchy of Cornwall there is an oar representing the Admiralty jurisdiction of Devon and Cornwall, and which is preserved, and that particular section of the oar is in fact worn away from use.
But, in other words, so far from George the Third's assay mark being evidence of modernity, it is really evidence of the antiquity of the oar.
Then, the next in order of date is the name of jasper Swift, whose name and title as Admiralty Marshal is engraved on the butt of the oar. There is no date but there is in existence, dated 1586, in the twenty-eighth year of Queen Elizabeth, a precept addressed by Lord Howard of Effingham who was Elizabeth's Lord High Admiral, to jasper Swift, Marshal, to arrest certain pilots and villians who had been guilty of their depredations in the Thames. So we have got that particular date fixed as being in Queen Elizabeth's time.
And, as I have already said, we have on the blade the arms of Henry the Seventh, the reign in which Cabot discovered Cape Breton. The arms of England and France are shown quartered because, of course, that was before the time when Queen Mary said that on her death they would find the lost Calais engraved upon her heart. And the curious thing about this particular coat of arms is that it is not part of the original blade. It has been superimposed on the blade, probably in substitution for some earlier coat of arms and it is merely a speculation but the theory has been put forward that when Henry the Seventh, as the result of his success in knocking out King Richard the Third at the Battle of Bosworth Field, founded a new dynasty, the Lord High Admiral whom he appointed may very well have removed the arms of Richard, Duke of Gloucester, his predecessor, immediately but one, who had been the brother of Edward the Fourth, as a compliment, removing the obnoxious Yorkist arms as a compliment to the founder of the new dynasty.
Then, finally, there is the most puzzling thing of all, the assay mark on the lowest ring. Apparently this particular combination of three assay marks, the goldsmith's mark, the king's mark and this unknown letter is entirely unknown at Goldsmith's, but it would satisfy the requirements of the thirty-seventh year of Edward, that is 1363, which was the year in which the king's mark was first instituted and it was in the reign of Edward the Third, that the first definite writ was issued to a judge, to a Lieutenant judge, to hold a Court on behalf of the Lord High Admiral, and it may very well be that that particular piece of silver on the oar, even if the rest is more modern, may date back to the very foundations of the admiralty in the time of Edward the Third.
So, the fouled anchor which is engraved on the blade has been a silent witness of the administration of admiralty justice, whether good, bad or indifferent, at any rate since Tudor times, and possibly since the very foundation of the jurisdiction in the time of Edward the Third.
Now, Gentlemen, that is the history, so far as it can be deduced from the oar itself, and I said that there was no written record or history of the oar, but there is rather an interesting record which is graven in stone. In the time of Queen Elizabeth, in the first twenty-five years of her reign, one, Dr. David Lewis was the judge in Admiralty. He died in 1584. He was, as it happens, the son of the Vicar of the old Priory Church of Abergavenny. Incidentally, he was the first President of the then newly founded Jesus College of Oxford, and as I have already said, he was also Judge of the Admiralty Court. Rather a curious mixture which, however, was by no means unknown in those days. Now, he, dying in 1584, had designed his own tomb. Now, however much one might distrust a record of Dr. David Lewis himself, composed by himself, I think when I tell you about the tomb you will agree there is no reason to doubt the truth of what he put on it because he put nothing about himself, but he did put a great deal about 'his coat. Here lies incumbent on the tomb in his full robes, the old Admiralty judge with his head resting on a couple of books which may or may not be intended to represent some of the ancient books of the Admiralty; but on the front of the tomb itself there are three arches. The arch under his head is the skull, the emblem of immortality. In a frame are three books, one probably the old code of sea laws, the laws of Oleron which came down from the time of the Fourth Crusade, from Richard the First and are still preserved in the record office; the old black book of the Admiralty which is the earliest known digest of the laws of the sea which is also preserved in the record office, and another book which I have got in my library at the Law Court, a book a precepts of the Admiralty Jurisdiction. I think there is probably no doubt that the old gentleman intended to depict these three books surrounding the emblem of immortality.
Then, on the middle panel there is our friend, the fouled anchor again, exactly as represented on the walls of the court and on the Admiralty wall. And in the last panel there is the figure of a man in the robes of the Marshal or Sergeant of Admiralty, carrying over his shoulder an unmistakable representation of the Admiralty oar The last section of the stock is missing but it is plainly discernible that it was there; and on the blade, though of course there are not all the things that are on it now, there is unquestionably the arched crown, the arms of Henry the Seventh, and the fouled anchor.
In other words, the old judge determined to immortalize himself in his robes of office and preceded into Eternity by the Admiralty Marshal carrying the Admiralty oar. Now, he died in 1584, and as I told you, we have a precept directed to jasper Swift, dated 1586, so I think it doesn't require any effort of the imagination, or one cannot be accused of exercising imagination in supposing that figure thus depicted, carrying the admiralty oar, on the panel on the tomb is none other than our friend, jasper Swift whose name is engraved on the oar that goes into court every day with the judge.
Now, Gentlemen, I hope I haven't been too tedious or too technical„ but there is the history of this old symbol of an old jurisdiction. After all, I suppose every one in this room is proud of the fact that in matters maritime, in precautions for safety at sea, it is acknowledged that Great Britain has led the world and this oar which I have described is the emblem of the Court whose business it is to see that the high standard which sailors of the British Empire set and have always set all over the world in maritime safety, is observed and preserved. (Applause.)
PRESIDENT BRACE: Gentlemen, I am going to ask the Honourable Colonel G. R. Geary, Minister of justice, to express to Sir Boyd Merriman, our appreciation for this most interesting address today.
THE HONOURABLE COLONEL G. R. GEARY: Mr. President, Sir Boyd, My Lords, and Gentlemen: From this point one can determine from the expression of the faces of those who are lunching that Sir Boyd's subject has been happily chosen and has evoked the greatest possible interest in you. He, himself, is of the present generation of a long line of judges who established the reign of law in the Old Land. Probably of all our inheritance from the Old Land there is none more dear to us than the system of maintenance of law and order and the ad ministration of justice. We cling to that in this country as one of our dearest possessions and it is befitting, that Sir Boyd has introduced us to some extent to the antiquity of the administration of justice, its long continued evolution, even from the time when kings sought to impose their will upon the courts, to this time when the lowest of all his subjects may come to him and be sure that he will be given justice.
We are glad too, to see and know from what Sir Boyd has said, from our personal contact with him„ that the judiciary in England is still composed of those who will maintain that great tradition.
I am sure I speak for you when I propose to the Chairman, that he put a motion, thanking Sir Boyd very much indeed for this happy and interesting address.
PRESIDENT BRACE: It is not our custom to have a formal motion but I know from the expression you have just given that you have enjoyed very much hearing Sir Boyd. (Applause.)