of Great Brittain have an undoubted right to the Soveraignty of the Seas of Great Brittain none but a few Mare Libertines and that for their own Interest ever scrupled Sir Hen Spelman gives us an Account of a very Ancient Record extracted out of the Laws of Hoelus Dha Regis seu Principis Walliae cir An. 928. which for the proof of the said Dominium quasi uno intuitu is here inserted in haec verba viz. Variato aliquantulum Nominis Vocabulo dici hic videtur Huwell Da qui superius Hoêl Dha Latine Hoêlus Hoelus alias Huval quem Malmesburiensis unum fuisse refert e quinque Wallensium Regibus Quos cum Cunadio Rege Scotorum Malcolmo Rege Cambrorum Maccusio Achipirata seu Principe Nautarum vel Marium Praefecto ad Civitatem Legionum sibi occurrentes Rex Anglorum Eadgarus in Triumphi pompam deducebat Una enim impositos remigrare eos hanc coegit dum in Prora ipse Sedens Navis tenuit gubernaculum ut se hoc spectaculo Soli Sali orbis Brittanici Dominum praedicaret Monarcham In this Ancient and Memorable Record King Edgar Neptune-like rides in Triumph over the Brittish Seas giving the world to understand that Dominium Maris is the Motto of his Trident. Consonant whereunto is that which the Law it self says Mare dicitur esse de districtu illius Civitatis vel Loci qui confinat cum mari in quantum se extendit territorium terrae prope mare In a word to this purpose the Renowned Learned Mr. Selden who hath left no more to say but with Jo Baptist Larrea in one of his Decisions of Granada That Authorum sententias non ex numero sed ex ratione metiri oportet pensitari debent juris fundamenta non Authorum Elenchum velut calculatione computari The Lord High Admiral is by the Prince concredited with the management of all Marine Affairs as well in respect of Jurisdiction as Protection He is that high Officer or Magistrate to whom is committed the Government of the Kings Navy with power of Decision in all Causes Maritime as well Civil as Criminal So that befide the power of Jurisdiction in Criminals he may judge of Contracts between party and party touching things done upon or beyond the the Seas Wherein he may cause his Arrests Monitions and other Decrees of Court to be served upon the Land as also may take the parties body or goods in execution upon the Land The Lord Coke in honour of the Admiralty of England is pleased to publish to the world that the Lord Admirals Jurisdiction is very Ancient and long before the Reign of Ed. 3. and that there hath ever been an Admiral time out of mind as appears not only by the Laws of Oleron but also by many other Ancient Records in the Reigns of Hen. 3. Ed. 1. Ed. 2. Thus as the Laws and Constitutions of the Sea are nigh as Ancient as Navigation it self so the Jurisdiction thereof hath universally been owned and received by all Nations yea and this Kingdome is by way of Eminency Crowned by Antiquity for the promulgation of the one and establishment of the other For otherwise without such Maritime Laws and such an Admiral Jurisdiction how could the Ancient Brittains long before Julius Caesar invaded this Isle restraine all Strangers Merchants excepted from approaching their Confines or regulate such Navies as were the wonder of that Age Or how could King Edgar in the Titles of his Charters have effectually styled himself as well Imperator Dominusque rerum omnium Insularum Oceani qui Brittaniam circumjacent as Anglorum Basileus or maintain in Naval Discipline these four hundred Sail of ships appointed by him to guard and scour the Brittish Seas And did not Etheldred after Edgar for the self-same end and purpose set forth to Sea from Sandwitch one of the greatest Navies that ever this Kingdome prepared Doubtless this was no Lawless Navy without Maritime Constitutions for the due regulation thereof according to the Laws of the Sea Consonant to that of the Jurisdiction of the Admiralty then in use and received by all the Maritime Principalities of Europe Whereas it is universally acknowledged That the Admiralty of England is very Ancient and long before the Reign of Edward the third who ever consults Antiquity shall find it farre more Ancient and long before the Reign of Edward the first even time out of mind before the said Edward the first To this purpose very remarkable is that ancient Record in the Tower of London entituled De Superioritate Maris Angliae jure Officii Admirallatus in eodem and out of the old French rendred into English by Sir John Boroughs in his compendious Treatise of the Soveraignty of the Brittish Seas pag. 25 c. edit Anno 1633. in which it evidently appears that the Admiralty of England and the Jurisdiction thereof was farre more Ancient then Edward the first and that from age to age successively and time out of mind even before the days of the said Edward the first it was so owned and acknowledged by this and all other Neighbour-Nations as appears by the said Record which was occasioned by a National Agreement of certain differences arising between the Kings of England and France in the 26 year of the Reign of the said Edward the first by reason of certain usurpations attempted by Reyner Grimbald then Admiral of the French Navy in the Brittish Seas in which Agreement the Commissioners or Agents for the Maritime Coasts of the greatest part of the Christian world of Genoa Spain Germany Holland Zealand Freezland Denmark and Norway then present made this memorable Acknowledgment and Declaration which is extracted out of the said Record as to so much thereof as relates to the Jurisdiction of the Admiralty viz. That the Procurators of the Admiral of the Sea of England and of other places as of the Sea-Coasts as of Genoa Catalonia Spain Almayne Zealand Holland Freezland Denmark and Norway do shew that the Kings of England time out of mind have been in peaceable possession of the Seas of England in making and establishing Laws and Statutes and Restraints of Arms and of Ships c. and in taking Surety c. and in ordering of all other things necessary for the maintaining of Peace Right and Equity c. and in doing Justice Right and Law according to the said Laws Ordinances and Restraints and in all other things which may appertain to the Exercise of Soveraign Dominion in the places aforesaid And A. de B. Admiral of the Sea deputed by the King of England and all other Admirals ordained by the said King of England have been in peaceable possession of the Soveraign guard with the Cognizance of Justice c. And whereas the Masters of the Ships of the said Kingdome of England in the absence of the said Admiral have been
of Truths or the Fucus of Errors hath of late years been the more Epidemical cheat in Print it being sufficiently notorious how that adulterous generation went a whoring after the Press and what a noisome spawn of illegitimate Brats were then generated of the froth of the brain not less numerous then spurious that neither their male-content Parents nor Religion Law Reason nor Charity are able to maintain And although this Treatise be of a more generous extraction yet it is very far from complementing it self with the least vain hopes of exemption from those censures which are common to all men It is worth an Asterisk to observe how infeazable it hath been in all ages for the most Innocent to escape this correction Aristotle that Prince of Peripateciks was accused of being too obstruce and obscure and in many things labours under Galen's reprehension the Dialogues of Divine Plato are taxed for being too confused and immethodical Virgil by some is counted but a shallow and weak witted Poet and by others charged as if he were wholly beholding to Homer for his works and Homer himself is derided by Horace as if he were too drowfie a poet Demosthenes could not please Marcus Tullius in all things Trogus Pompeius doth accuse Titus Livius his Orations of Fiction and Falsities Seneca was nick-named and called Lime without Sand Pliny is compared to a turbulent River that tastes of many things but digests few But to come home to the Worthies of the Civilians Profession for even the most Orthodox Oracles of the Civil Law have not escaped such undue reprehensions As some have affirmed that Accursius had no depth of Judgement Others reprove Bartol for the length of his Distinctions as if somewhat too Monstrous by having too many Members On the other side Albericus is blamed for too much Brevity Baldus for inconstancy and instability of Judgement Alexander for the perplexity of his Method and both the Raphaels for their too much subtilty in some things for their neglect of and carelesness in the more polite Literature in other things for their non-citing and mis-alledging the Doctours And in a word those very ancient and most famous Lawyers that by the profoundness of their Judgement and splendour of their Eloquence have so illustrated the dark and obscure places of the Civil Law as that they nave left the world just cause of Admiration no hopes of Imitation even these have not escaped the like mis-reprehensions For in the Life of Iustinian Perinus out of Suidas hath a large Invective against Tribonian that Architect of the Pandects Besides who more Eloquent then Ulpian who more Pithy then Paulus who more Learned then Callistratus who more Acute then Papinianus who more Distinct and withal Succinct then Scaevola who more Free and Fluid then Caius who more Profound then Africanus who more Delightful and Satisfactory then Pomponius who more Clear and Transparent then Celsus who more Candid and Ingenious then Triphonius Yet all these in their Respective and Incomparable Works have met with the said undue Reprehensions If this therefore shall chance to meet with some waspish humours we must consider the Climate Nor is it more then wants a President or less then needs a charitable Construction which is the worst Revenge can possibly be executed by such as chuse rather to suffer then offend J. C. THE INTRODUCTION OR Preface TO THE Ensuing TREATISE THE Systeme of Jurisdictions is as the Law it self above the Notions of any Private Conception he is something more then of a singular Invention that thinks he can arraign the Verdict of all Ages Nihil dici queat quod non priue dictum fuit And he is more then of an audacious spirit that dares invade the Laws Prerogative Nihil proferri debet quod non prius Constitutum fuit Hence it is that he that writes of that Subject without Book that is that vents his own Notions or sails by the weather-cock of his own Brain not only consiscates the ill-stowed Cargo of his Intellect but also renders himself no less arrogant and presumptuous in the tacite apprehensions of the Prudent then shallow and ridiculous to the most rural Capacities It is therefore nothing dishonourable for Treatises of this Nature to merit the Application of that Liberty which Chrysippus took of whom it is said That he borrowed so freely from Authours that if his name were but expunged or obliterated out of the Title Page there would nothing remain that could properly be called his own It is neither heretical nor disingenious to accommodate old Truths to new Designs so it be done aptly and honestly sine animo furandi for there is that Credit by way of debt due to the Authours that it is no less then Theft to conceal them whereas one half of the debt is paid if you duly quote them yea they become your Debtours if by the ingenuity of your Husbandry you raise their Credit according to the improved value But he that conceals the Patrons of his Assertions is ashamed of his own Craft robs the Dead and châ—ats the Living He that writes Politicks without prefixing his Principles comes short of his Duty But he that writes Law without quoting his Authority presumes beyond his Line he that blushes to be ingenious is ashamed of his own modesty Plato borrowed many things from Pythagoras Aristotle from Plato and Theophrastus from Aristotle This Treatise hath borrowed nothing but what it intends to pay here 's the acknowledgement of the debt full satisfaction with interest may be expected elsewhere sufficient Caution being given in the subsequent Elenchus of the Creditours As Reason is the soul of the Law so Jurisdictions may be styled the faculties of that soul being reduced to act or exercise as they are accommodated to this or that object Consequently therefore to confound Jurisdictions is to obliquitate the Rule of all Humane actions specially if any thing less then Bonum Publâ—cum under a vizor be the Authour of that confusion Mine and Thine divide the world betwixt them in Private transactions they are unhappy Monosyllables but in Publick affairs they may be of most dangerous Consequence Insomuch that Seneca said The world would be quiet were it not for those two ambitious Pronouns This Meum Tuum is here understood Collective for Jurisdictio being of Publick right is not competible with any Private interest exclusive to common good that being beside the design of Jus Gentium whereby Jurisdictions were Originally constituted The flux and reflux of Jurisdictions are from and to the Prince as Rivers from and to the Ocean wherein Transactions of the greatest weight and burden are Navigable And therefore to obstruct the Current of Justice in this or that Channel may force open the Sluces of the Law to a Cataclysme of Injustice and dissolve the Ligaments of the best jointed Body Politick in the whole world And yet if the streams of one Jurisdiction running too rapid
to be wind-bound in our own Ports then to lanch forth into the wide Ocean of the Maritime Laws touching this Subject specially in an English Bottome having an eye to the Burden of the Vessel and for whose accompt this Cargo was first shipp'd whither bound and for whom consigned as also how disadvantageous it might prove for the Principals to have the returns of their expectation only in the Arbitrary altercations of cross-opinions rather then in such stapletruths of the Law as are not only currant in all the Navigable parts of the world but of most use and practice in the Admiralty of England For these reasons the Reader may expect only a taste of Admirall varieties and therein no more then may serve to excite his impatience after the excellency of that which in a set Treatise for this purpose might in its proper Dialect and due Latitude be emitted by an abler Artist All Maritime affairs are regulated chiefly by the Emperial Laws the Rhodian Laws the Laws of Oleron or by certain peculiar and Municipal Laws and Constitutions appropriated to certain Cities Towns and Countries bordering on the Sea within or without the Mediterranean calculated for their proper Meridian or by those Maritime Customes and Prescriptions or Perpetual Rights which are between Merchants and Mariners each with other or each among themselves This Maritime Government and Jurisdiction is by the King as Supreme as well by Sea as at Land concredited with the Lord high Admiral of England who next and immediately under the Prince hath the chief Command at Sea and of Sea-affairs at Land This Lord high Admiral hath several Officers under him some of a higher others of a lower form Some at Land others at Sea some of a Military others of a Civil Capacity some Judicial others Ministerial Such as are Chief in the Judicial Capacity are in the Law known by the style of Magisteriani or Judges of Sea-faring debates and all Maritime controversies whereof one being the Judex ad quem in all Maritime causes of appeal from inferiour Courts of Admiralty is with us known by the style of Supremae Curiae Admirallitatis Angliae Judex within whose cognizance in right of the Jurisdiction of the Admiralty by the Sea-Laws the Laws and Customes of the Admiralty of England are comprized all matters properly Maritime or any way pertaining to Navigation The Judicial Proceedings wherein are Summary Velo Levato sine figura Judicii As by warrant of arrest or other Original Mandate Execution and Return thereof Interposition of Caution given by the arrested for his Legal Appearance according to the tenor of the said Warrant of Arrest Appearance and Introduction of Sureties by way of Stipulation or Judicial Recognizance in the summe of the Action de judicio sisti de judicato expensis solvendis cum ratihabitione Procuratorii as also the Plaintiffs caution to pay costs in case he fail in his suit Contempt in case of non-appearance and forfeiture of the said caution in case of such contempt offering the Libel in case of Appearance Litis contestation or joyning of issue Decree for the Defendants personal Answer upon Oath to the said Libel exhibited against him a Decree for a viis modis in case of a Non Inventus a Decree against the sureties to produce the party Principal in judicio Production of him accordingly his answer upon Oath to the Libel Production of Witnesses Compulsory against such Witnesses as will not appear without it Commission for examining of Witnesses at home or sub mutuae vicissitudinis obtentu beyond Sea The Oath of Calumny by both parties if they please Exception against the Witnesses The Supplementary Oath Exhibition of Instruments Publication of Witnesses Conclusion of the Cause Sentence Definitive Appeal made within fifteen days of the said Sentence Assignment ad prosequendum Prosecution of the Appeal Remission of the Cause to the Judge A Quo Decree for Execution and Sentence executed accordingly Beside the other way of proceeding by arrest of goods or of goods in other mens hands and so to a Primum Decretum as to the Possession upon four Defaults and thence after one year to a Secundum Decretum as to the Propriety in case of Nonintervention upon laying down the costs of the Prim. Decret in the interim In the Proceedings there may be also Reconvention also sequestration of goods lite pendente and sentence Interlocutory as well as Definitive with many other particulars which may or may not happen according as the Court sees cause and the merits of the Case require Within the Cognizance of this Jurisdiction are all affairs that peculiarly concern the Lord high Admiral or any of his Officers quatenus such all matters immediately relating to the Navies of the Kingdome the Vessels of Trade and the Owners thereof as such all affairs relating to Mariners whether Ship-Officers or common Mariners their Rights and Priviledges respectively their office and duty their wages their offences whether by wilfulness casualty ignorance negligence or insufficiency with their punishments Also all affairs of Commanders at Sea and their under-officers with their respective duties priviledges immunities offences and punishments In like manner all matters that cnocern Owners and Proprietors of ships as such and all Masters Pilots Steersmen Boteswains and other ship-Officers all Ship-wrights Fisher-men Ferry-men and the like Also all causes of Seizures and Captures made at Sea whether jure Belli Publici or jure Belli Privati by way of Reprizals or jure nullo by way of Piracy Also all Charter-parties Cocquets Bills of Lading Sea-Commissions Letters of safe Conduct Factories Invoyces Skippers Rolls Inventories and other Ship-papers Also all causes of Fraight Mariners wages Load-manage Port-charges Pilotage Anchorage and the like Also all causes of Maritime Contracts indeed or as it were Contracts whether upon or beyond the Seas all causes of mony lent to Sea or upon the Sea called Foenus Nauticum Pecunia trajectitia usura maritima Bomarymony the Gross Adventure and the like all causes of pawning hypothecating or pledging of the ship it self or any part thereof or her Lading or other things at Sea all causes of Jactus or casting goods over board and Contributions either for Redemption of Ship or Lading in case of seizure by Enemies or Pyrats or in case of goods damnified or disburdening of ships or other chances with Average also all causes of spoil and depredations at Sea Robberies and Pyracies also all causes of Naval Consort-ships whether in War or Peace Ensurance Mandates Procurations Payments Acceptilations Discharges Loans or Oppignorations Emptions Venditions Conventions taking or letting to Fraight Exchanges Partnership Factoridge Passagemony and whatever is of Maritime nature either by way of Navigation upon the Sea or of Negotiation at or beyond the Sea in the way of Marine Trade and Commerce also the Nautical Right which Maritime persons have in ships their Apparâ—â— Tackle Furniture Lading and all things pertaining to Navigation also all causes
of Out-readers or Out-riggers Furnishers Hirers Fraighters Owners Part-owners of ships as such also all causes of Priviledged ships or Vessels in his Majesties Service or his Letters of safe Conduct also all causes of shipwrack at Sea Flotson Jetson Lagon Waiffs Deodands Treasure-Trove Fishes-Royal with the Lord Admirals shares and the Finders respectively also all causes touching Maritime offences or misdemeanours such as cutting the Bovy-Rope or Cable removal of an Anchor whereby any Vessel is moared the breaking the Lord Admiral 's Arrests made either upon person ship or goods Breaking Arrests on ships for the King's Service being punishable with Confiscation by the Ordinance made at Grimsby in the the time of Rich. 1. Mariners absenting themselves from the Kings Service after their being prest Impleading upon a Maritine Contract or in a Maritime Cause elsewhere then in the Admiralty contrary to the Ordinance made at Hastings by Ed. 1. and contrary to the Laws and Customes of the Admiralty of England Forestalling of Corn Fish c. on ship-board regrating and exaction of water-osficers the appropriating the benefit of Salt-waters to private use exclusively to others without his Majesties Licence Kiddles Wears Blind stakes Water-mills and the like to the obstruction of Navigation in great Rivers False weights or measures on ship-board Concealings of goods found about the dead within the Admiral Jurisdiction or of Flotsons Jetsons Lagons Waiffs Deodands Fishes Royal or other things wherein the Kings Majesty or his Lord Admiral have interest Excessive wages claimed by Ship-wrights Mariners c. Maintainers Abettors Receivers Concealers or Comforters of Pyrats Transporting Prohibited goods without Licence Draggers of Oysters and Muscles at unseasonable times viz. between May-day and Holy-rood-day Destroyers of the brood or young Fry of Fish such as claim Wreck to to the prejudice of the King or Lord Admiral such as unduly claim priviledges in a Port Disturbers of the Admiral Officers in execution of the Court-Decrees Water-Bayliffs and Searchers not doing their duty Corruption in any of the Admiral-Court-Officers Importers of unwholesome Victuals to the peoples prejudice Fraighters of strangers Vessels contrary to the Law Transporters of ptisoners or other prohibited persons not having Letters of safe Conduct from the King or his Lord Admiral Casters of Ballasts into Ports or Harbours to the prejudice thereof Unskilful Pilots whereby ship or man perish Unlawful Nets or other prohibited Engines for Fish Disobeying of Embargos or going to Sea contrary to the Prince his command or against the Law Furnishing the ships of Enemies or the Enemy with ships All prejudice done to the Banks of Navigable Rivers or to Docks Wharsfs Keys or any thing whereby Shipping may be endangered Navigation obstructed or Trade by Sea impeded Also embezilments of ship-tackle or furniture all substractions of Mariners wages all defraudings of his Majesties Customes or other Duties at Sea also all prejudices done to or by passengers a shipboard and all damages done by one ship or Vessel to another also to go to Sea in tempestuous weather to sail in devious places or among Enemies Pyrats Rocks or other dangerous places being not necessitated thereto all clandestine attempts by making privy Cork-holes in the Vessel or otherwise with intent to destroy or endanger the ship Also the shewing of false Lights by Night either on shore or in Fishing Vessels or the like on purpose to intice Sailers to the hazard of their Vessels all wilful or purposed entertaining of unskilful Masters Pilots or Mariners or sailing without a Pilot or in Leaky and insufficient Vessels also the over-burdening the ship above her birth-mark and all ill stowage of goods a shipboard also all Importation of Contrabanda goods or Exportation of goods to prohibited Ports or the places not designed together with very many other things relating either to the state or condition of persons Maritime their rights their duties or their defaults all which only to enumerate would require a Volume of it self These therefore may suffice for a hint of persons and things properly Cognizable within the Jurisdiction of the Admiralty of England Omitting what might be here likewise added as to the Naval Military part within the Cognizance of the said Jurisdiction As that ships in the Brittish Seas not amaining at the first Summons to any of his Majesties ships may be assaulted and taken as Enemies That no Prize ought to be carried from the Fleet without the Admirals leave That all above hatches saving the ship-furniture ought upon a seizure jure belli to goe to the Captors That the Vessels of Forraigners met with at Sea may be visited and examined if suspected specially in times of Warre their Cocquets Pasports Charter-parties Invoyces Bills of Lading Ship-Roll with other Instruments ship-papers perused that so if there be cause they may be brought before the Admiral There are many other particulars referring as well to the Civil as to the Criminal part of this Jurisdiction which might be here inserted but the design of this Compendious Treatise being as formerly hinted rather to touch then handle things it may not be expected that the great Continent of the Admiralty should be comprized in so small a Map To conclude therefore with that great Oracle of the Civil Law Baldus touching the Marine Jursdiction In mari Jurisdictio est sicut in terra Nam Mare in terra h. e. in alveo suo fundatum est quum Terra sit inferior Sphaera videmus de jure Gentium in mari esse Regna distincta sicut in arida terra Ergo Jus Civile id est Praesciptio illud idem potest in mari scilicet quod in terra operari So that all such as out of a subtile humour would fain insinuate into the world as if there were no such thing as Jurisdictio maris or Dominium maris with its prescript limits and bounds some arguing from the perpetual motion of that liquid element Others from a supposed parity between the Sea and the Air in point of Community are by this Learned Oracle left without any hopes or possibility of the least Orthodox support for their Anti-thalas-monarchical opinion For in this place he is positive That both the Jurisdiction and the Dominion of the Sea with their distinct limits and bounds as well as that of the Land are duly constituted and that not by force and power but by Law not only by the Civil but also by the Law of Nations and this not in the Emperours alone but also in such Kingdomes and States as by Prescription Custome or otherwise may claim the same CHAP. V. Of Laws and Jurisdictions in general with the several kinds and degrees thereof IT is recorded in the Historical part of the Law by that famous Lawyer of Millayne Jason Maynus who flourished about the year of our Lord 1500 and taught at Padua where he dyed Anno 1519. upon this subject of Jurisdictions that Raphael Fulgosius that Jaspis virtutum utroque jure
of others and refers properly to Servants that were under the domination of Masters as Emancipation doth to children free-born that were under the power of their natural Parents of these kinds are Causae Libertinitatis Causae Ingenuitatis The Third and last species or kind of Jurisdictio taken in this large sense is Jurisdictio Simplex And it is that Jurisdiction which is exercised Officio Judicis Mercenanario Respecting only Private utility Jure Actionis And being thus exercised Officio Judicis Mercenario it differs from both the former viz. both from Imperium Merum and from Imperium Mixtum Of this Jurisdictio Simplex which in truth is Jurisdictio propriè stricte specialiter sumpta Bartol as in the former makes no less then Six Degrees but Jason again as formerly reduces and contracts them to Three viz. Gradum Magnum Medium Minimum Which method now follows as being the acceptablest with the Modern DD. and distinctly comprehensive of all that the Six Degrees which Bartol makes are capable of Under the First of these viz. Gradum Jurisdictionis Simplicis Magnum are comprehended such as the Law looks on as matters of great prejudice such are Causae Liberales wherein are controverted all disputes concerning Liberty or Servitude Freedome or Bondage Ingenuity not of wit but of birth or Libertinity These Causae Liberales are understood in the Law as certain species opposite to such things as are either of Merum or Mixtum Imperium The Actions that hence do arise are as formerly Actiones Liberales cogniâ—able only before the Superiour Judges The truth is such Actions as these that concern the state quality condition or reputation of perions are in the Law termed Causae Arduae Negotium Arduum And therefore Inferiour Judges who by interpretation of Law according to the Civil Laws account are Judices Municipales are no way competent to take cognizance of such Cases Likewise under this head fall all Causes wherein upon any Action any Castigations Coertions Restraints or other Corporal punishments in execution of some Definitive Sentence do happen according to that smart Proverb in Law Qui non habet in aere Luat in corpore But to make it yet more clear The Actions specially aimed at and properly intended hereby in the Law that fall under this head are such Cases as in themselves and according to their nature are Criminal but yet are civilly proceeded in or prosecuted Quando ex causd descendenti ex delicto quis fuit Condemnatus Civiliter Or such Actions Quae Civiliter ex Maleficiis intentantur The Second Degree of Jurisdictio Simplex is Gradus Medius under which are comprized all such Peouniary Causes as in value exceed Treoent ' Aureos This Aureus among the Ancients was in value about our English Noble or Six Shillings and eight pence but in Justinians time it was something more viz. about the value of an Angel in our Gold Coin Which is something less then Centum Cestertii according to the Roman Account which some would have the Aureum Antiquum to amount unto if every Cestertius must be in value three half pence farthing according to our Account The Third and last Degree of Jurisdiotio Simplex comprehends only such small and petty summes as will not defray the charges of a Plenary and Judicial Order of Proceeding and therefore they are heard and determined Summarily velo Levato Bartol would state liquidate and ascertain these petty summes to the value of Centum Aureos Others to Twenty others to Ten Duckets But Jason tells us plainly that the truth and the more received opinion is that in such cases the just and exact values are not determined or ascertained in the Law but left ad Arbitrium Judicis according to that Rule in Law in ff de jur delib And thus although here hath been distinctly touch'd each of the Three Species or kinds of Jurisdiction taking the word Jurisdictio as the Genus generalissimum And although here have been given some instances for the more clear description of each Member or Degree of each Species thereof yet all this would be but imperfect if such things as are or may be both of Merum Imperium and of Jurisdictio Simplex also but in divers respects should be omitted Of this kind therefore is that Tortura formerly hinted at which when it is imposed or executed Ad poenam or in Criminal Causes Ad veritatem eruendam is of Merum Imperium But when in Civil Causes it was wont to be used or imposed because the witnesses did vacillare and were inconstant staggering or wavering in their testimony it was then of Jurisdictio Simplex In like manner all moderate and light correction or punishment being inflicted Ad poenam Levis Delicti is of Merum Imperium but being imposed for contempt or contumacy in Civil Actions it is of Jurisdictio Simplex Also Excommunication when pronounced Ex Publica Causa against rebellious and contumacious persons is of Merum Imperium but being pronounced ad instantiam partis it is of Jurisdictio Simplex So likewise Restraint or Imprisonment when imposed by the Canon Law ad delictum puniendum is of Merum Imperium when otherwise imposed it is of Jurisdictio Simplex Lastly Appeals in all Criminal Causes are of Merum Imperium but in Civil Causes they are both of Jurisdictio Simplex and of Merum Imperium also There are also in the Law for these things are only hinted to the memories of such as know the Law several other Distinctions of Jurisdiction Such as Jurisdictio Voluntaria Contentiosa But this is a Distinction in respect of the parties Litigant the former Distinctions being in respect of the Judges themselves There is also Jurisdictio Ordinaria Delegata which though a very common received Distinction from the Speculator yet in truth 't is less true then common and is reproved by Bartol because the one differs not from the other according to the Law of Distinctions both being in their nature one and the same though diversified in the exercise thereof For the Judge Delegate doth but exercise Jurisdictionem Delegantis There is also Jurisdictio Prorogata as when the parties litigant do of themselves consent unto a Jurisdiction in one who without such consent were no Judge in the Case but this seems more like a compromise or arbitrary decision then like a Jurisdiction properly so called There are several other Distinctions of Jurisdiction in the Law here purposely omitted as being not so pertinent to the design in hand This therefore that hath been said may suffice for a hint to all such Appendexes on the Law as sollicite rather for the Lawyer then the Clyent to learn what a Jurisdiction in the eye of the Law is before they attempt the invasion thereof To apply the premises
the premises it may be no digression to insert a word by way of caution to the imperfect Notionist that he would not hence infer as if the Law did feign impossibilities because it supposes the living to be dead and the dead to be alive the absent to be present and the present to be absent and the like For although they would indeed be impossibilities if only considered simply in an identity of fact and time of person and of place without their right and due diversifications yet they are not impossibilities being rightly according to the Law of Fictions distinguished in respect of fact time person and place together with such transactions translocations transtemporations and transpersonalities as according to Rules of Law are requisite to every Fiction that enures to any effect in Law For that which may seem Deceptio intellectus and by mis-apprehension possibly be taken for an impossibility in the precedent instances of a Legal Fiction is in truth nothing but that defect or absence of verity in the person act thing manner time or place feigned Indeed to look for Truth in a Fiction is to expect an impossibility with as much vanity as some men do for Revelations if it were possible that there could be the least verity in the thing supposed it would immediately cease to be a Fiction Legal Fictions may be aptly styled The just Policies of Law to attain unto the end and effect of Law by remedies extraordinary only where the ordinary means do fail This therefore is no warrant to fly to Fictions though Legal much less to others as remedies extraordinary when the ordinary means by Law provided may be used This point of Fictions having now been put to the touchstone of the Law and impartially weighed in the ballance thereof it plainly appears what kind of Fictions they are that are legally qualified to take place in the Judicial proceedings of the Civil Law in Forraign Nations as also in this Kingdome which before the late unnaturall and intestine Wars was and now seems to be for Religion Justice and Commerce Regina Insularum totius Orbis CHAP. VIII That the Cognizance of all Causes and Actions arising of Contracts made and other things done upon the Sea is inherent in the Jurisdiction of the Admiralty THis Truth in the Law is not denyed in the Judgements of men though it hath not wanted at least a seeming Contradiction in Practice Witness Susans Case against Turner in Noys Reports where it is said That if a Suit be in the Court of Admiralty for a Contract supposed to be made Super altum mare the Defendant upon a Surmize or Suggestion that it was made upon the Land within the Realm may have a Prohibition Such and the like begat that complaint of the Admiralty which gave the Lord Coke occasion to assert in these words following viz. That by the Laws of the Realm the Court of Admiralty hath no cognizance power or Jurisdiction of any matter of contract plea or querele within any County of the Realm either upon Land or the Water but every such contract plea or querele and all other things rising within any County either upon the Land or the Water ought to be tryed and determined by the Laws of the Land and not before or by the Lord Admiral or his Lieutenant in any manner So as it is not material whether the place be upon the Water infra fluxum refluxum aquae but whether it be upon any Water within any County Wherefore we acknowledge that of contracts pleas and quereles made upon the Sea or any part thereof which is not within any County from whence no tryal can be had thereof by twelve men the Lord Admiral hath and ought to have Jurisdiction This was the Answer long since given to an Objection made by the Admiralty But the Objection was That whereas the Cognizance of all Contracts and other thiags done upon the Sea belongeth only to the Juisdiction of the Admiralty the same are made tryable at the Common Law by supposing the same to have been done in Cheapside and such like places So that the sinew of the Objection is That things done upon the Sea being cognizable only in the Admiralty are made tryable elsewhere by supposing them to be done in Cheapside and such like plaees The said Answer speaking nothing as to the said manner of supposing seems not to enervate the said Objection The Answer distinctly declares and sets forth where and in what places the Jurisdiction of the Admiralty hath not Cognizance viz. not upon Land or Water within any County But why according to the said Objection things done upon the Sea and belonging only to the Admiralty are made tryable at Common Law by supposing them to be done in Cheapside and such like places seems yet to be resolved Statutum simpliciter loquens debet intelligi de his quae vera sunt secundum veritatem non de his quae sunt secundum Fictionem The scruple touching the surmize implyed in the supposition mentioned in the said Objection doth arise from the fact so supposed as whether solid enough to lay foundation for such superstructures as are built thereon It is acknowledged That of Contracts made and other things done upon the Sea or any part thereof which is not within any County the Lord Admiral hath and ought to have Jurisdiction but if this Super altum mare should by a meer surmize or suggestion be translocated in operation of Law and so thereby become as it were Infra Corpus Comitatus the said acknowledgement would seem to be disacknowledged and the said Objection would seem to be an Objection still Veritatis congressus invictae est major veritas And he that sues an Admiral Cause in another Court ought to withdraw it and to fine to the King Brownlow Reports That if a Bond bear date Super altum mare it must be sued only in the Admiral Court Whether then an Obligation or other Contract made on board one of the Frigots of the Navy Royall or the like in the Straights may be tryed in other then the Admiral Court by alledging or supposing the same to have been made in the Straights in Islington in the County of Middlesex seems to be the question for the very truth of the fact as to the place of making such Obligation in the Straights or Super altū mare seems not to alter the Case if the place so suggested is not to be traverfed it being as easie and as feasible to suppose and suggest the said Frigot and the Straights as Burdeaux in France to be in Islington But the great Oracle of the Law assures us That things done out of the Realm may not be tryed within the Realm by the oath of twelve men It is reported in Palmers Case against Pope That Jennings libelled in the Admiralty against one Audley upon a Contract laid to be made apud Malaga infra
that Law whereby that Court proceeds is nothing inferiour in point of Antiquity to the Jurisdiction it self the style of that Court in that point of Practice being as Ancient as the Court it self And whereas the right of taking such stipulations for Appearance and performance of the Acts Orders Judgements and Decrees of the Court of Admiralty hath not been without contradiction upon the foresaid ground That the said Court is no Court of Record it doth plainly appear by a Record of good Antiquity and with the Learned Mr. Selden of good Authority That the said Court is a Court of Record And if the Court of Admiralty be discharactered as no Court of Record by reason of its proceeding by the Civil Law it would thence seem to be implyed as if no part of the Civil Law were any part of the Law of England It is not concealed from the world by a person of no less honour then knowledge in the Laws of this Realm that the Imperial or Roman Law is in some cases the Law of the Land This worthy Authour speaking of the Right of Prerogative in absolute Kings and Princes as to Impositions upon Merchandizes doth upon that occasion in the fore-cited place declare himself in haec verba Forasmuch as the general Law of Nations which is and ought to be Law in all Kingdomes and the Law-Merchant is also a branch os that Law and likewise the Imperial and Roman Law have been ever admitted had received by the Kings and people of England in Causes concerning Merchants and Merchandizes and so are become the Laws of the Land in these Cases why should not this question of Impositions be examined and decided by the Rules of those Laws so far forth as the same doth concern Merchants and Merchandizes as well as by the Rules of our Customary or Common Law of England especially because the Rules of those other Laws are well known to the other Nations with whom we have commerce whereas the Rules of our own Municipal Laws are only known within our Islands What this worthy Authour here speaks of the Civil Law in England as to this point of Impositions by the King on Merchandizes is applicable in any case of Navigation Naval Negotiation or other affairs properly relating to Merchants or Mariners within the sphere of the Admiralty of England And the same Learned Authour in another place When the City of Rome was Gentium Domina Civitas illa magna quae regnabat super Reges terrae The Roman Civil Law being communicated unto all the Subjects of that Empire became the Common Law as it were of the greatest part of the inhabited world c. And again in the same place All Marine and sea-Sea-Causes which do arise for the most part concerning Merchants and Merchandizes crossing the Seas our Kings have ever used the Roman Civil Law for the deciding and determining thereof Thus far goes the said worthy Authour in this point It is most true the Civil Law in England is not the Law of the Land but the Law of the Sea Great Brittain and the Dominions thereof comprizing the adjacent Seas as well as the Land The Law by which the high Admiralty of England proceeds being in all Causes cognizable in that Jurisdiction allowed owned and received by Prince and People Soveraign and Subject seems to be a Law of England though not the Law of England not the Land-Law but the Sea-Law of England For as in matters Terrene and in Land-affairs it is proper to say infra Corpus Comitatus so in matters Maritime and Sea-affairs it is no less proper to say Sur le hout mere The Jurisdiction of the Admiralty of England is one of the Jurisdictions of England which ever implyes a Law to proceed by that cannot be but of that Place whereof the Jurisdiction it self is It neither may nor ought to be denyed but that for the taking Recognizances against the Laws of the Realm Prohibitions have been granted yet possibly it may not thence by a necessary concludency follow that the high Court of Admiralty in taking Stipulations for Judicial appearance or performance of the Acts and Orders of the Court vel judicio sisti vel judicatum solvi and this according to that Law whereby it is to proceed is involved under such a guilt of transgression against the Laws of the Realm as eo nomine to incur a Prohibition which if grantable upon every such Recognizance or Stipulation for Appearance and performance of the Acts and Judgements of the Court without which it cannot proceed according to Law there could then be no Suit or Action depending in the high Admiralty of England be it for Place Nature or Quality in it self never so Maritime and of undoubted Admiral Cognizance but must be subject and lyable to a Prohibition and consequently to a removal from its proper Jurisdiction ad aliud examen to the great grievance of Merchants and Mariners and others the good people of these His Majesties Dominions by reason of the multiplicity of Suits protelation of Justice excess of Judicial expences together with the uncertainty of Jurisdictions and all as the unavoydable consequences of such Prohibitions CHAP. XI Of Charter parties made on the Land and other things done beneath the first Bridge next to the Sea vel infra fluxum refluxum Maris and how far these may be said to be Cognizable in the Admiralty TOuching this Subject it hath been asserted That if a Charter-party be made within any City Port-Town or County of this Realm although it be to be performed upon or beyond the Seas yet is the same to be tryed and determined in the ordinary course of the Common Law and not in the Court of Admiralty This is exclusive as to the Admiralty in matters of Charter-parties made upon the Land But yet it is agreed and resolved Hill 8. Car. upon the Cases of Admiral Jurisdiction That though the Charter-party happen to be made within the Realm so as the penalty be not demanded A Prohibition is not to be granted Were it otherwise or that the Jurisdiction of the Admiralty might not take Cognizance of such Maritime Contracts though made on Land then by thereunto adding what was formerly observed out of the same place viz. That the Court of Admiralty hath not any Jurisdiction of any Contracts made beyond Sea for doing of any act within this Realm or otherwise wherein the Common Law can administer Justice It would follow that if according to the one of these Assertions such Maritime Contracts when made upon the Land though to be performed upon or beâ—ond the Seas may not be tryed or determined in the Court of Admiralty and when according to the other of these Assertions made beyond the Sea for doing of any act within this Realm c. the Court of Admiralty hath not any Juriidiction thereof In such caâ—e it must necessarily follow that the Jurisdiction of the Admiralty