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Mary van Blommestein
Photos taken at the Admiralty, London:
Abstract This article considers the history of a particular judicial symbol, the Cape of Good Hope Vice-Admiralty silver oar, examined specifically in relation to the establishment of the Vice-Admiralty Court in this country. The silver oar was acquired by the South African Cultural History Museum in 1989. The Author Mary van Blommenstein , of Bertram House Museum, (attached to the SA Cultural History Museum in Cape Town) conducted her research into the history of the Silver Oar of Admiralty shortly after it was acquired by the SA Cultural History Museum. She published this article in Bulletin 11 of the Museum in 1990. We are most grateful to her and to the SA Cultural History Museum her agreeing to us including this fascinating article on our Website. She may be contacted care of fax +27 (21) 461 9592. Introduction The need for maritime legislation to regulate aspects of maritime commerce has been recognized by all the great seafaring nations from the time of recorded history. The Law of Admiralty 'conjures up visions of piracy wreck and spoil, of admirals dispensing harsh justice on the high seas and of seamen holding great ships to ransom for unpaid wages."1 After almost a century and a half of Dutch East India Company rule, the Cape of Good Hope was occupied by the British in 1795. During the closing years of the eighteenth century the Company collapsed, Dutch maritime influence waned and England became the leading maritime nation.2 English Admiralty Law was exercised at the Cape from the time of the establishment of the first Vice-Admiralty Court in 1797.3 In order to understand the use of one of the judicial emblems of this particular court, known as a silver oar, it is necessary to consider the history associated with its origin. The oar as symbol of maritime authority The exact origin of Admiralty oars is uncertain but they are probably the most ancient of all judicial insignia.4 By 1360 a silver oar was used as the symbol of authority of the High Court of Admiralty of England when maritime causes were judged.5 The silver oar became the badge of the Admiralty Marshal, an officer of the Court responsible for the arrest of persons and vessels in respect of all manner of maritime disputes. This officer carried the silver oar before the judge into Court where it was placed on the Bench when maritime causes were heard.6 A more sombre function was performed at executions, when the silver oar, borne by the deputy marshal, preceded the hangman in the procession, which escorted condemned sailors who were executed at low watermark; the demarcation of Admiralty authority.7 The jurisdiction of the High Court of Admiralty appears to have been threefold. It regulated civil matters and criminal matters connected with the sea and the condemnation of prize,8 prize being a 'ship or property captured at sea in virtue of rights of war.'9 It was obviously impractical for Admiralty causes in the British colonies to be heard in the English Admiralty Court and from 1660 onwards a number of Vice-Admiralty Courts were established in major seaports of the American colonies. Some of these Vice-Admiralty Courts abroad were permitted the dignity of a silver oar with the Royal Arms engraved on its blade. These oars were never the property of the Crown or of the Lords of Admiralty and therefore the exact number in existence today is unknown. Rare known examples The present silver oar of the Admiralty Court in London was probably remade in about 1660 and incorporates devices of design from earlier periods. The hallmark on the shaft dates from 1;'98, while the blade bears the coat of arms of James Stuart, Duke of York, Lord High Admiral from 1660 to 1673. The Tudor period is represented by the arms of Henry VII and the inscription on the base is from Elizabethan times and reads Jasper Swift Marshall of the Admiralty. A carving in Priory Church, Abergavenny, South Wales, depicts Jasper Swift, carrying his oar of office on the tomb of David Lewis, Judge of the High Court of Admiralty from 1559 until 1584.12 There only appear to be seven Vice-Admiralty oars extant, three of which were made for the United States. The earliest known American example is that of 1701 by Anthony Nelme sent to Bermuda as the mace of the Vice-Admiralty Court. The oar was used by Governor Bennett, who arrived on the island to combat lawlessness and strengthen a weak administration and became the ceremonial mace of the Island Council.13 The second oldest known American silver oar, made in about l725 by Jacob Hurd, a Boston silversmith, is now owned by the Massachusetts Historical Society. The third example, the New York oar, also dates from about 1725 and was made in New York by Charles le Roux. official silversmith of the City Council. It was last used by the New York Vice-Admiralty Court in 1775 when the Court was dissolved by the Crown, but is on exhibit in the Museum of the City of New York. The other four Vice-Admiralty oars recorded chronologically are as follows: Colombo 1801; Cape of Good Hope by William Frisbee of London, 1806, Calcutta, engraved with the Royal monogram of Queen Victoria, and Toronto, the latest example dating from 1962. Of these, it was only possible to establish the location of the Cape of Good Hope oar. Acquired in 1989 from the De Villiers family, it is now on permanent exhibition at the South African Cultural History Museum (SACHM 89/480). The Vice-Admiralty Court at the Cape Within a year of the first British occupation of the Cape in 1795 the Commander-in-Chief of the British naval forces, Admiral Sir George Keith Elphinstone, urged the need for a Vice-Admiralty Court in a despatch to the Secretary of State for War, Henry Dundas. He wrote saying:
Two years later, on 6 January 1797, a Vice-Admiralty Court was established at the Cape of Good Hope, under the Great Seal of the High Court of Admiralty. On the second British occupation in 1806, a Vice-Admiralty Court was again established by a Royal Commission dated 1 September of the same year. The Governor was vested with the office of Vice-Admiral until the Vice-Admiralty Courts Act of 1863 made further commissions unnecessary.17 The Vice-Admiralty Court had two branches known respectively as the Instance Court, which exercised normal Admiralty jurisdiction, and the Prize Court. The latter was only empowered to act following a proclamation of war. The procedure and practice governing a Prize Court was regulated by Prize Court Rules which extended to all matters relating to booty of war, including ships or goods seized by the naval forces of the Crown. A right of appeal from Prize Court orders and decrees would initially have been made to the Lords Commissioners of Appeals in Prize Causes, superseded by the Judicial Committee of the Privy Council in 1833.18 The right of appeal from decisions of an Instance Court, however, was made to the Court of Admiralty and Delegates .19 In 1797 the Vice-Admiralty Court was composed of the following members: the Governor, Lord Macartney; the Lieutenant-Governor, Major-General Francis Dundas; the Judge of the Vice-Admiralty Court; the Secretary of the Colony, Andrew Barnard; the Commander-in-Chief of the Naval Forces at the Cape Station, Admiral Sir George Keith Elphinstone; and 'all Admirals, Vice-Admirals, Rear-Admirals, Captains and Commanders of our Ships of War for the time being who are or shall be within the Admiralty jurisdiction of the Colony of the Cape of Good Hope'.20 King George III of Britain empowered these commissioners to call and assemble a Court of Admiralty on ship board or upon the land, provided the Court consisted of a minimum of three commissioners, although seven was preferable. The comrnissioners were authorized to issue warrants to bring any persons accused of piracy, or felony to trial and be adjudged according to the rules of Admiralty.21 By 1822 the Vice-Admiralty Court at the Cape was reported by William Bird, Comptroller of Customs for twenty-six years, to consist of a judge, registrar, marshal, King's proctor and proctors. The Vice-Admiralty Court played an important role during wartime, but in peace this court had little business because the ordinary Court of Justice claimed concurrent jurisdiction in all cases of forfeiture, seizure of ships or merchandise and breaches of custom and navigation laws. Therefore, there was a race on all such occasions between the King's proctor and the fiscal, the representatives from each of these courts, for the priority of getting the matter into court.22 A conflict of justice One of the most remarkable examples of conflict between the ordinary Court of Justice and the Vice-Admiralty Court took place shortly after Du Pre Alexander, second Earl of Caledon became Governor. In April 1808 the fiscal heard, through one of his many spies, that the Portuguese ship Rosalia, had landed slaves illegally. He duly informed the deputy marshal of his intention to arrest the ship. Imagine the sub-sheriff's surprise, when, acting on the fiscal's command to seize the Rosalia, he became involved in a race in Table Bay with another cutter bearing the deputy marshal of the Vice-Admiralty Court.23 The Governor's despatch to Viscount Castlereagh, Colonial Secretary of State for War and Colonies, describes the subsequent events as follows: The boats reached the vessel at nearly the same time, that in which was the sub-sheriff was first alongside, he had hold of the rope, his feet on the ladder, and was about to ascend when the deputy marshal passing from his own boat into the other, pushed him away, and by that means was first on deck. Each party claimed and kept possession, and each assuring the plea of prior capture, instituted proceedings against her.24 Fortunately, the Vice-Admiralty Court released the ship, but, the Court of Justice found the master guilty of clandestinely landing slaves and sentenced him to a fine. Castlereagh supported and upheld the Vice-Admiralty Court's decision that, in cases involving revenue, the Articles of Capitulation gave the right of jurisdiction to the Court of Justice. The fiscal had obviously wanted the fine imposed to be received into the Colonial treasury rather than that of Vice-Admiralty. The latter went directly to the Crown whereas the fiscal received a third of all fines as part of his emoluments. On this evidence, it appears, therefore, that the concurrent jurisdiction of the two courts was only conceded in non-revenue matters with the conflict in these instances being resolved by the court in which process had first begun.25 Vice-Admiralty Court proceedings appear to have been conducted originally at Government House with John Holland as judge.26 By 1800 this court had moved to new quarters in the Castle where it remained until the Supreme Court was established in 1828.27 The need for more suitable premises from which to conduct the daily business of the Vice-Admiralty Registry is evident in a letter from an actuary at the Castle addressed to the judge of the Vice-Admiralty Court in September 1800. In this letter, the increase in Vice-Admiralty business, the crowded offices, continual interruptions as well as a lack of secrecy required by the inspection of papers are listed as daily inconveniences.28 The creation of a Supreme Court A Supreme Court was established in Cape Town in 1828 following the issue of a Charter of Justice in 1827 which abolished the former Court of Justice. The Charter designated Sir John Wylde as Chief Justice and appointed William Menzies, William Westbrooke Burton and George Kekewich as the three puisne judges.29 The Chief Justice was to take rank next to the Governor, Lieutenant-Governor and the Commander-in-Chief of the Military Forces, and the judges were to take rank next to the Chief Justice.30 Sir John Wylde, as Chief Justice, was responsible for the entire conduct of business in the Court of Vice-Admiralty.3l In accordance with these duties, Wylde wrote to the Secretary of the Governor in July 1828 to request that a Registrar's Office and a Record Room be provided, saying that he 'had understood it to be arranged that the two offices lately occupied by the Secretary of the Court of Appeals and immediately opposite the Vice-Admiralty Court Room should be appropriated for the purpose'. He concluded this letter by expressing the evident need of accommodation by saying that 'since the surrender of the original public offices in the Castle (work has been) conducted improperly, as I conceive--at the private house of the Registrar of the Court'.32 The administration of maritime justice The scope of the administration of justice by the Vice-Admiralty Court at the Cape is evident when examining extracts from original documents. Sometimes this jurisdiction resulted in the death penalty. For example, on 26 June 1798 Vice-Admiralty Court proceedings held at Government House charged three men with committing piracy and felony while on board the Princess Charlotte. Although they were granted counsel to defend the charges made, the sentence of death was passed by the judge, who signed the warrant for their execution.33 Most of the records, however, deal with matters of prize. Prizes made navy flag officers and captains rich men: during the Napoleonic Wars half a dozen saved over £200,000 each, and £50,000 was not uncommon. It is interesting to consider the very real promise of prize-money made to navy recruits, evident in the following excerpts from a recruiting poster of the 1790s:
Procedure in cases of prize The extent of jurisdiction was local, being confined to the adjudication of property within the defined limits of three nautical miles in territorial waters. Halsbury's Laws of England describes the procedure in cases of prize as follows. A cause for the condemnation of a ship as prize would commence by the service of a writ by a marshal being affixed to a mast and a copy thereof being handed to the master or other person in charge of such ship, once an affidavit had been filed. In respect of service of a writ on freight being effected, the writ would be shown to the registrar and a copy left with him. In a cause against a captor for restitution, the writ would be served on the captors except where the ship was brought in for adjudication. The release of property in court custody was effected once an applicant had lodged a release with the marshal. It was the marshal's responsibility to ensure that any conditions imposed by the release were fulfilled and that any fees due to him were paid, before ordering the release of property which was then recorded on the filing of a certificate. Evidence on which causes of condemnation of ships was heard depended on the affidavits as to the ship papers and these, if any, being exhibited. No ship could be condemned in the absence of an appearance or claim until six months had elapsed from the service of a writ, unless there were papers on the ship and sufficient proof on the evidence of witnesses from the captured ship that such ship belonged to the enemy. The judge would order the mode of the hearing of the cause, the bringing of claims and pleadings as well as the discovery and inspection of documents required in the case. The registrar would send notice to all the parties of the day on which the cause would be held. Where the judge condemned property as prize, the decree of condemnation would be enforced by the following methods. Either the property would be sold provided it was still under arrest, or if sold before condemnation and the proceeds not paid into court, the persons holding those proceeds would be ordered to pay them. Goods condemned as prize would be arrested until the persons responsible for such freight made payment into court. In a restitution case; if the judge decreed that property seized or taken as prize be restored to the owner, a release would be ordered.35 The following selection of extracts from archival documents of the Vice-Admiralty Court at the Cape, illustrate the range of causes heard. In one of the cases during 1799 Michael Hogan, agent for the captors, brought in and exhibited an account of sales of the vessel, La Rosa, her tackle, apparel and furniture, as well as 48 slaves, together with an affidavit as to the truth of said account.36 In another cause held in the Court Room at the Castle during the same year, the claim of two men of HMS L'Oiseau was heard in respect of the capture of the Danish ship, the Angelique, which 'now lies in Table Bay at great hazard and the cargo laden on board the same in danger of being spoiled from the leaky state of the said ship'.37 A request for the issue of a Decree of Unlivery was granted, whereby the cargo was safely stored. According to the Prize Act, the marshal required a person from HM Custom House to attend at the storehouse where the goods landed from the Angelique were deposited and seals and locks duly affixed before the goods were delivered for sale by public vendue.38 The prize-money awarded to the captain, officers and seamen of the sloop HMS Redwing, as a result of the seizure of the French schooner La Sylphe, was considerable. The enemy vessel was brought to Simon's Bay, condemned as prize and sold by public auction under decree of the Court of Vice-Admiralty Instance held on 21 September 1819. The money realised by William Rose, acting as merchant, lawful attorney and agent for the Redwing amounted to a sum of 7 293 rix-dollars, 4 shillings and 2 stuivers.39 The problem of concurrent jurisdiction between the Court of Justice and the Vice-Admiralty Court remained unresolved and arose again in a case in March 1821 where the cargoes of two East India Company ships, the Marchioness of Ely and the General Hewitt, were seized by His Majesty's Customs, on account of defective manifests.40 The agents for these two ships were instructed by the deputy marshal to appear before the judge of Vice-Admiralty Instance Court in the Castle or in his chambers on the third day after the said arrest to answer before Henry Ellis, Acting Collector and William Wilberforce Bird, Comptroller of HM Customs, in cause of Breach of the Laws of Navigation and Reserve.41 Here follows a verbatim report of the cargo on board the Marchioness of Ely laden at the port of Canton, dated 14 Dec. 1820. British built and captained by Brook Kay, she was bound for the Cape of Good Hope and St. Helena.:42
The details of numerous prize sales decreed by the Vice-Admiralty Court listed in the Cape Town Gazette and African Advertiser provide a valuable record of the cargoes carried. Apart from goods already listed in the manifest of the Marchioness of Ely, pounds of ebony, coffee and pepper as well as boxes of candles and crockery and bales of cotton were sold. Slavers also formed part of prize proceedings as the Navy had the responsiblity of putting an end to the slave-trade. Many captured slavers were brought to Simon's Town to be sold and freed slaves were kept ashore until they could be indentured to farmers.43 A Portuguese slaver the Diana brought as prize to Table Bay by the cruiser, HMS Mutine, was driven ashore at the Imhoff Battery by a north-westerly gale on 7 January 1846.44 Fortunately, although she carried a cargo of slaves from Penba, Zanzibar, no lives were lost.45 Most wrecks in Table Bay occurred during the north-westerly gales when vessels unable to escape to False Bay were liable to be blown ashore on Woodstock Beach and at the mouth of the Salt River.46 For this reason, vessels were instructed from 1737 not to use Table Bay between 15 May until 15 August but the safer anchorage of Simon's Bay.47 From the early 1700s, strict rules prevented the theft of shipwrecked cargo. The Court of Justice always ordered soldiers to the beach to erect a gallows once it was known that a ship had gone ashore.48 One of the most exciting and spectacular cases of capture of a vessel as prize took place just outside Table Bay on 5 August 1863, when the Confederate raider, the Alabama, succeeded in taking the Federate bark, Sea Bride. This led to the Captain of the Alabama, Raphael Semmes, and his crew being greeted with much excitement by the local population and was probably the reason for the composition of the well-known folk-song 'Daar kom die Alabama'.49 However, Mr Graham, the US Consul, protested that the Sea Bride had been taken within the marine league. But the evidence of various witnesses, including the lighthouse keeper at Green Point, the Collector of Customs and whalermen, together with the captain of HMS Valorous, who had the final word on behalf of the neutral power, resulted in Semmes' capture being judged legal.50 The abolition of the Vice-Admiralty Court Admiralty jurisdiction was vested in the Supreme Court under the Colonial Courts of Admiralty Act in 1890.51 This was only effected at the Cape in July 1891 when the Vice-Admiralty Court was abolished.52 The silver oar would therefore have been used by all the Chief Justices of the Cape of Good Hope in their office as judges of the Vice-Admiralty Court from 1806 until this court was abolished. The names of the Chief Justices are listed as follows:
The Cape of Good Hope silver oar passed into the hands of his descendants from whom it was acquired in 1989. The oar is now on permanent exhibition in the Old Supreme Court, the building from which Vice-Admiralty justice was dispensed in the 19th century. Conclusion The history of the silver oar and the establishment of a Vice-Admiralty Court at the Cape of Good Hope illustrates the influence of English Admiralty Law as a result of the taking of the Cape by the dominant maritime commercial power in the 19th century. |
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