and so to conclude this point with Omphalius that famous and Modern German Lawyer Jurisdictio est res indivisibilis si tamen ejus Domini in eodem Territorio dissentiant in Exercitio Jurisdictionis pertinebit ad Superiorem Potestatem Conoordia partes interponere vel usum Jurisdictionis Exercendae dividere This seems to be the Admiralties Case in terminis All Jurisdictions are essentially radicated only in the Prince or Supreme Magistrate The Law ranks them inter Regalia Principum The right and power of the conservation of Jurisdictions doth lodge and reside properly there from whence they had their being and origination Jurisdictiones omnes ab ipso Principe velut Rivuli à fonte suo manarunt When the Prince or Supreme Authority Ex plenitudine Potestatis doth create or constitute a Jurisdiction he doth not devest himself of the right of expounding his own Grant according to that in the Law Jurisdictio licet concedatur à Principe semper tamen inhaeret ejus ossibus So that when differences do arise concerning the rights or demands the Ampliations or Restrictions the Latitude or Boundaries of Jurisdictions the Prince is the competent Judge to decide and reconcile In this case therefore to Caesar is the Appeal CHAP. VI. Of Prohibitions Their several kinds Causes and Effects in the Law HAving spoken of Jurisdictions in general it may not now be of less consequence to enquire of what superseding faculty a Prohibition in its original and due intendment of Law may be in point of right and power for the removal of the Cognizance of Causes from one Jurisdiction to another And although in the precedent Chapter there hath been a clear and distinct Prospect of the matter of Jurisdictions out of the Civil Law being the best and indeed the only Law that could with such transparency present us with an object of that depth and difficulty yet now being to look through other Mediums so clear a sight of Prohibitions may not be expected to be presented in the same Glass For Prohibitio in the sense now intended may not be taken for Interdictum quo Praetor vetat aliquid fieri nor be thence dissected into its several kinds and distinctions according to the Analogy of Civil Law This would be as little pertinent to the present purpose in hand as rationally it could expect of credit or belief out of its proper Sphere Suffice it therefore that it be described under such Rules and Characters as the Law of this Realm doth not disown It shall therefore only be premised what Boerius that famous Civilian says of it That a Judge in matters cognizable before him may prohibit such as are within his Jurisdiction from impleading any in another Court to his prejudice And that an Ecclesiastical Judge may issue his Mandate to a Judge Secular prohibiting him from medling with matters of Ecclesiastical Cognizance And the same Boerius in another place says That in such cases of Excess by the power of one Jurisdiction exercised over another the King is to decide the Controversie A Prohibition in the sense most adequate to the purpose in hand is a Writ forbidding to hold Plea in a Matter or Cause supposed to be without the Jurisdiction and Cognizance of that Court where the Suit depends Sir Thomas Ridley calls it a Commandement sent out of some of the Kings higher Courts of Record where Prohibitions have been used to be granted in the Kings Name sealed with the Seal of that Court and subscribed with the Teste of the chief Judge or Justice of the Court from whence the Prohibition doth come at the suggestion of the Plaintiff pretending himself to be grieved by some Ecclesiastical or Marine Judge in non-admittance of some matter or doing some other thing against his right in his or their Judicial Proceedings commanding the said Ecclesiastical or Marine Judge to proceed no farther in that cause upon pretence that the same doth not belong to the said Ecclesiastical or Marine Judge But this description of the Writ of Prohibition though large enough yet not comprehensive enough For Prohibitions may issue to Courts that have neither Ecclesiastical nor Marine Cognizance as appears by the Learned Fitzh who among Sixty several Cases by him mentioned wherein a Prohibition doth lye doth not instance in any against the Admiralty Nor do the Statutes though express as to Prohibirions against Courts Ecclesiastical speak of any in express terms or in the letter of it as against the Admiralty Hence probably it is that the Authour of the Terms of the Law makes no other description of a Prohibition then this viz. That it is a Writ that lyeth where a man is impleaded in the Spiritual Court of a thing that toucheth not Matrimony nor Testament nor meerly Tithes And this Writ shall be directed as well to the Party as to the Judge or his Official to prohibit them that they proceed no farther But if it appears afterwards to the Judges Temporal that the matter is to be determined by the Spiritual Court and not in the Court Temporal then the Party shall have a Writ of Consultation commanding the Judges of the Court Spiritual to proceed in the first Plea Which description of the Writ of Prohibition is consonant to the Statute of 2 Ed. 6. cap. 13. whereby it is provided That he that sueth for a Prohibition shall make a suggestion and prove it by two witnesses And in case it be not proved true by two witnesses at the least in the Court where the Prohibition is granted within six moneths next after the said Prohibition then the Party so hindred by such Prohibition shall have a Consultation and recover double costs and damages against the party that sued for the Prohibition And in the said description of a Prohibition by the Authour of the Terms of Law there is not any thing express'd as to a Prohibition against the Admiralty but only against Judges in matters Spiritual wherein the Court of Admiralty is not concern'd By the Proceedings whereof there is not as in the other once was the least pretence for any fear of dis-inheritage of the Crown-Rights which will be agreed to be originally the Causa finalis of Prohibitions Whence it was long since observed and published by a Learned Civilian of this Nation That this Writ of Prohibition in those days may well be spared For although it were some help to the Kings inheritance and Crown when the two Swords were in two divers hands yet now that both Jurisdictions are settled in the King as the only Supreme Magistrate there is little reason thereof And indeed the Jurisdiction of the Admiralty of England was ever inherent in the Crown of England so that there was never in that sense that parity of reason for Prohibitions against the one as against the other That which at first hath its origination from a principle of well-grounded policy and is of
Prohibition be awarded against the Court of Admiralty in Suits there Commenced upon Contracts made beyond the Seas CHAP. XIII Of the Agreement touching the Admiralty in Anno 1575. As also of the Resolutions Hill 8. Car. 1. upon the Cases of Admiral Jurisdiction THE Non-observance of the said Agreement being for the more quiet and certain execution of Admiral Jurisdiction was one of the Objections of the Admiralty in Anno 8 Jac. Reg. whereof mention is made by the Lord Coke in Par. 4. Instit cap. 22. And where it is said to be a supposed Agreement and that it had not been delivered to the then Judges but acknowledged to have heard the same read over in His Majesties Presence And to which Answer was then made That for so much thereof as differeth from those Answers viz. to the other Objections then made it is against the Laws and Statutes of this Realm And therefore the Judges of the Kings Bench never assented thereunto as is pretended neither doth the phrase thereof agree with the tearms of the Laws of the Realm This was the Answer then given to that Objection grounded upon the said Agreement Whether the same were no more then supposed may be referred to the matter of Fact wherein if so the evidentia rei will easily liquidate the scruple and dissipate dubieties Though the said Agreement be disagreed yet the Law like the Axis of the Body Politick remains fixed notwithstanding the rotation of opinions And whether so much thereof as differed from the Answers then made to the other Objections were repugnant to the Laws and Statutes of the Realm or the phrase discrepant from the tearms thereof would be more visible upon an Inspection were it free to insert that as an Imprinted Agreement here which is called but a supposed Agreement there Therefore to inquire how far the said Agreement made or supposed to be made in one age may be obligatory in another may possibly have an implication of more verity and reality then the thing it self with general consent doth or may challenge yet being in substance Consonant to the subsequent Resolutions upon the Cases of Admirall Jurisdiction and being an Objection long since under a former Impression with the Answer thereto as aforesaid it may be now a less Transgression to omit the Thing it self saltem in terminis then Digression to have given this short hint thereof quasi in nubibus The Resolutions Hill 8. Car. 1. upon the Cases of Admiral Jurisdiction being the Articles Propositions and Agreement made and subscribed in Febr. 1632. by all the Reverend Judges of both the Honourable Benches for the accommodating and setling the Differences concerning Prohibitions are very Energetical in Affirmance of much of the Rights of the said Jurisdiction The Sun need not borrow the Auxiliaries of Art to demonstrate his Light These Articles and this Agreement whatever the former be are more then supposed being reall and true You have it here as to the Body and Substance thereof in no other words then Sir Geo. Croke in his Reports delivers it with the requisite Addition of the style or Preface thereto together with the names of the Lords of His Majesties most Honourable Councel then present As followeth viz. At White Hall 18 Febr. 1632. Present The Kings Most Excellent Majesty Lord Keeper Lord Arch-Bishop of York Lord Treasurer Lord Privy Seal Earl Marshal Lord Chamberlain E. of Dorset E. of Carlisle E. of Holland E. of Denbeigh Lord Chancellour of Scotland E. of Morton Lord V. Wimbleton Lord V. Wentworth Lord V. Faulkland Lord Bishop of London Lord Cottington Lord Newburgh Mr. Treasurer Mr. Controller Mr. Vice-Chamberlain Mr. Secretary Coke Mr. Secretary Windebank This day His Majesty being present in Councel the Articles and Propositions following for the accommodating and setling the Difference concerning Prohibitions arising between His Majesties Courts at Westminster and His Court of Admiralty were fully Debated and Resolved by the Board And were then likewise upon reading the same as well before the Judges of his Majesties said Courts at Westminster as before the Judge of His said Court of Admiralty and His Atturney General Agreed unto and subscribed by them all in His Majesties Presence viz. 1. If Suit should be commenced in the Court of Admiralty upon Contracts made or other things Personal done beyond the Seas or upon the Sea No Prohibition to be awarded 2. If Suit be before the Admiral for Fraight or Mariners wages or for breach of Charter-parties for Voyages to be made beyond the Seas 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 But if the Suit be for the Penalty Or if the question be whether the Charter-party were made or not Or whether the Plaintiff did release or otherwise discharge the same within the Realm This is to be tryed in the Kings Courts at Westminster and not in His Court of Admiralty 3. If Suit be in the Court of Admiralty for Building Amending Saving or necessary Victualling of a Ship against the Ship it self and not against any party by name but such as for his Interest makes himself a party No Prohibition is to be granted though this be done within the Realm 4. Although of some Causes arising upon the Thames beneath the first Bridge and divers other Rivers beneath the first Bridge the Kings Courts have Cognizance Yet the Admiralty hath also Jurisdiction there in the point specially mentioned in the Statute of 15 R. 2. And also by Exposition and Equity thereof he may inquire of and redress all annoyances and obstructions in these Rivers that are any impediment to Navigation or Passage to or from the Sea And also to try Personal Contracts and Injuries done there which concern Navigation upon the Sea And no Prohibition is to be granted in such Cases 5. If any be imprisoned and upon Habeas Corpus brought If it be certified that any of these be the Cause of his Imprisonment the party shall be remanded Subscribed Febr. 1632. By all the Judges of both Benches AN EXTRACT By way of APPENDIX Of the Ancient LAVVS of Oleron Rendred into English out of GARSIAS aliàs FERRAND Together with Some Marginal Observations thereon LONDON Printed in the Year 1661. AN EXTRACT By way of APPENDIX of the Ancient Sea-Laws of OLERON Rendred into English out of Garsias aliàs Ferrand The Judgements of the Sea and the Isle of OLERON For the Regulation and Government of Merchants Owners of Ships Part-Owners Masters of Ships and Common Mariners in all Maritime Affairs I. WHen a Ship or other Vessel whereof a Master is made belonging to several Part-Owners and departing from her own Port arrives at Burdeoux Rouen or such like place and is there Fraighted to sail for Scotland or some other Forraign Country The Master in such case may not sell or dispose the said Vessel without Licence or a special Procuration for that purpose from the said
where scituate the strange Tree that grows on that Island 36 Fraight how to be apportioned when the Voyage is imperfect 166 France when first an Admiral there 20 21 G. GEnuises famous for their Maritime Laws 13 Gold Silver Precious Stones and the like found in on or nigh the Sea in what cases may be kept by the Finder and in what cases not 190 192 194 Goods found that belonged to shipping how they were to be disposed of in Ancient times 192 193 Goods cast over board to lighten the ship no Derclict 188 189 Graecians by whom they were first Civilized 10 11 H. HAnnibal high Admiral of the Carthaginians 12 Hanno Hamilco famous for their Naval discoveries ibid. Hercules Pillars why the Motto of Non ultra engraven thereon 9 I. IEnnings Case against Audley 116 Imperium what the several degrees thereof in the Law 57 to 65 Impleaders of Marine Causes in a wrong Jurisdiction punishable by the Admiralty 31 32 Interdictum at the Civil Law how it differs from Prohibitio at the Common Law 71 Joh. Rex his Ordinance made at Hastings touching the Soveraignty of the Kings of England in the Brittish Seas 30 Ionean Sea where and why so called 11 Jurisdiction the Etymon of the word with the several kinds and degrees thereof in Law 56 to 69 Jurisdiction of the Admiralty of England the great Antiquity thereof 22 to 36 Jus Gentium the Original thereof 53 Jus Humanum Civile what and how introduced 54 Just the divers acceptations of that word in Law as in reference to Fictions 83 L. LAding or ships Lading in part disposed to supply the ships occasions the Law in that casâ— pag. 179 180 Law the true definition thereof 51 The Law of Nature of Nations The Civil Law The Law Sacerdotal and Canon 52 to 55 Law of the Sea or Law Admiral the great Antiquity thereof Laws Imperial their use and exeellency above other Laws in most Kingdomes 51 52 Laws of the Heathens fathered on their Heathenish Idols 53 Leigh's Case against Burley 135 Lycurgus Legislator to the Lacedemonians 53 Lye the lye given to or by either the Skipper or Mariners the ancient penalty in that case 173 M. MAhomet Law-giver to the Arabians 53 Manumission what and how it differs from Emancipation 65 Marcelleis famous for Marine Constitutions 13 Mariner's Case against Jones 133 Mariners their duty in case of disaster to the Vessel 102 Not to desert the ship till the Voyage be ended 165 Not to go out of the ship without the Skippers leave 167 In what case they may 178 If hurt or wounded in what case not to be healed at the ships charge 167 168 Messine where scituate the people thereof famous for their Sea-Laws 13 Minos he gave Laws to the Cretians 53 Minotauri Fabula why so called 8 Murderers of ship-broken men their strange and cruel punishment 185 N. NAmes of ships and Skippers to be engraven on the Buoyes of the Anchors 195 Navigation the Antiquity thereof to whom Originally ascribed 7 to 12 Nearchus Admiral to Alex. the Great 15 Neptune why feigned to be God of the Sea 14 Niceas Another Admiral to the Athenians 15 Noah how long since he arrived at Ararat 7 North-Starre its use in Navigation by whom first invented 10 Numa Law-giver to the Romans 53 O. OLeron where scituate most famous for their Sea-Laws and Maritime Constitutions when and by whom first published pag. 13 14 Onesicratus Admiral to the Assyrians 15 P. PAtroclus Admiral to the Syrians 15 Palmer's Case against Pope 94 111 135 Partnership in a Fishing design the Law in that case 182 Paeni or Carthaginians originally Phoeni or Phoenicians 12 Phoenicia where scituate the People thereof supposed to be the first Mariners Merchants and Astronomers As also the first Inventors of Arithmetick and the Art of Navigation 10 11 Pilots the punishment of an unskilful Pilot in case of Damage thereby 180 The punishment of treacherous Pilots 186 187 The strange punishment of their Abettors 188 Pirates their punishment 122 196 Who supposed to be the first that purged the Seas of such Vermin 8 Pisa the Inhabitants thereof famous for their Maritime Laws 13 Poles who first descryed the two Poles 11 Pericles another Admiral of the Athenians 15 Pontus the reason why the Sea is so called 9 Port and Port-Town how they differ 112 113 Prohibition what the Original thereof with its several kinds causes and effects in Law 72 to 81 Properties created at Sea Super altum mare whether cognizable in the Admiralty 31 R. REd Sea who there first Invented ships and sailed thereon and why called Erithraeum mare 12 Relegatio what how it differs from Deportatio 58 59 Reâ—â—er Crimbald the French Admiral his 〈◊〉 and illegal attempts on the Brittish Seas in derogation of the Soveraignty of England 28 29 Rhodes where scituate their precedency to all other Nations in Marine Constitutions 9 Rhodian Law generally referred to by the Emperours in decision of Maritime Controversies 10 19 20 Richard the First the first that published the Sea-Laws of Oleron and when 14 Ridley's opinion touching Prohibitions 78 79 Roman Admirals 18 19 S. SAles of ship or Lading or any part of either made by Skippers or Mariners without special Procuration in what cases good or not good in Law 164 165 179 180 Salvage how to be paid and satisfied 166 183 Sarazen Admirals 16 17 Seleucidae over the Syrian Monarchy why so called 13 Ship forced from her Cables and Anchors the Law in that case 194 195 Not to stay for a sick Mariner 168 When broken the Mariners not to be hindred from saving the goods 182 183 In King Edgar's time 400 Sail for the Guard of the Brittish Seas 27 Sick Mariners how to be provided for 168 And what wages such may challenge 169 Skipper's duty before he leaves a Port. 164 How to finish his Voyage in case of some disaster to his own ship 166 Slings for hoysing of goods 171 172 If damage happen thereby who must make it good 181 Solon Legislator to the Athenians 53 Soveraignty of the Brittish Seas publickly acknowledged by the Agents and Procurators of no less then ten Neighbour-Nations Kingdomes and States at once to be de jure in the Monarch of Great Brittain 28 Striking a ship-board whether by the Skipper or Mariners the Law in that case 173 Statutes 13 R. 2. cap. 5. 15 R. 2. cap. 3. 2 H. 4. cap. 11. 27 El. cap. 11. touching the Jurisdiction of the Admialty 141 to 154 Super altum mare properly within the Jurisdiction of the Admiralty 91 to 98 Supplicatio what it imports in Law 63 Surmizes Suppositions or Suggestions of places beyond Sea to be locally as within the body of some County within the Realm Variety of Opinions touching the same in the Common Law-Books 80 Susans Case against Turner 91 115 130 Sydonians famous and able Mariners 11 16 T. TAckle ship-tackle pawned pledged or hypothecated for the ships
§ cum urbem ff de Offâ—c Praes Urb. l. 1. Cod. eod tit m Tap. ubi supra nu 14. a L. 1. § interdictum l. 2. ff de interdict § Prohibitoria Instit cod tit b Boer Decis 114. nu 2. ibi Faber in L. ante fin Cod. de Off. Praef. Urb. per Tex in C. Transmissa De Foro Compet Paris de Put. in Syndicat Tit. de Excess Baron cap. ult Ang. in l. haeredi De Usu fruct Legat ut voluit Saldus in Prooem 2. lib. Decret Colum 2. c Boer Decis 9. nu 15. Bar. Alex. in L. omnibus § is videtur ff Si quis jus dic non obtemp Sir Tho. Ridleys View of the Civil and Ecclesiastical Law in part 3. cap. 1. sect 2. Fitzh N. B. verb. Prohibit d Terms of Law verb. Prohibit e D. Cowel Interp. ver Prohibitio It may not be hence inferred That what seems to cease of use in one respect may not remain of use in another As indeed this is in Conservation not Derogation of Jurisdictions and for prevention of Trials Coram non Judice Competente by an expedient of Law whereby the Gognizance of a Cause may not be drawn from its proper Jurisdiction ad aliud Examen f Num. 21. 8. 2 Kin. 18. 4. Nehushtan h. e. Brass or Brazen or a piece os Brass This implyes not but that Prohibitions are still of necessary use where Inferiour Jurisdictions meddle with matters which do not concern them and wherein they are incompetent Fitzh N. B. fo 39. Cowel Interp. verb. Prohibit Ridley View of the Civil and Ecclesiastical Law part 3. cap. 1. sect 2. h Ibid. Though by Warrant from the Proverb Losers have leave to speak yet in case of Interest such as cannot hold their own may hold their peace This hinders not but that a thing really done super altum mare though not yet so in proof may be surmized or suggested to be done at Land in order only to bring it to issue whether a Prohibition lyes in the Case This is but the Law of one Jurisdiction without any derogation of another i Cok. Inst l. 3. c. 7. sect 440. in sin k Fitzh N. B. tit Prohibitio l Fitzh Ibid. a Schard ver Fictio b Cas Tract Dialect 2. part cap. 20 21. Vid. Larrea Decis Granar Disp 8. nu 58. Semper Fictio Licet veritati contraria tamen veritatem imitatur § Minorem De Adopr l. Si Filius 14. D. Si Cer. per. l. Triennio 18. D. de Stat. Liber Et solum extenditur ad id quod per veritatem rerum Naturam fieri potest Glos in l. 3. D. Pro Socio Curr l. 2. Conject ad fratrem cap. 13. Oswald l. 14. ad Donel. cap 19. lit A. c Bart. in l. Si quis pro Emptore D. de usucapionib d L. Sive possidetis Cod. de Probat Cyn. ibid. l. non est verisimile D. Quod metus causa e Ibid. in glos mag in l. non est verisim f Gothof ad Rub. D. de Probat g Bart. ibid. nu 22. h L. Adoptio ff de Adopt i Le. Cornelia ff de Testam l. Cornel ff de Vulg. substiâ— k L. retro l. in bello § 1. l. bona ff de Capt. § 4. D. Quibus mod jus patr solvit l L. Absentâ— ff de verb. Sign m L. ibid. glos mag n L. qui in utero l. pen. ff de stat hom o ff Ad Leg. Aquil. Rub. ibid. l. Si ex causa D. Pro Socio p L. quia licet ff Pro Socio q L. 1. § Si Filius ff de suis legitimis l. 2 3 4. Cod. cod r § Sed si in bello Inst de Excusat Tutor Noy Rep. M. 39 40 Eliz. C. B. This may be but a Surmize in one Jurisdiction for a Supposition in another as an expedient whereby to discover unto which Jurisdiction the Case doth properly belong a Coke Inst part 4. cap. 22. This is meant when the thing is so in truth and in fact as well as supposed b Bart. in â— Si is qui pro Emptore D. de Usucap c In lib. Nig. Adm. fol. 36. d Brownl Rep. part 1. Mich. 10 Jac. e Littl. l. 3. c. 7. sect 440. f Hob. Rep. in Cas Palmer vers Pope g Leonard Rep. 30 Eliz. in Sir Jul. Caes Case in B. R. h Brownl Rep. Par. 1. Case Bright vers Couper Trin. 9 Jac. Rot. 638. in Com. Plac. i Brownl Rep. Par. 2. Westons Case Mich. 8 Jac. 1610. in B. R. k Trin. 17 Char. in B. R. Grand Abridgment of the Law Verb. Admiral Res quae intra Praesidia perductae nondum sunt quanquam ab hostibus occupatae Dominum non mutarunt ex Gentium jure Gror. de â—ur Bel. l. 3. c. 9. l Littl. l. 3. c. 7. â—ect 440. m Coke Inst Par. 4. c. 22. n Cro. Rep. in Resol upon the Cases of the Admiral Jurisdiction Hill 8 Char. o Coke Inst par 4. c. 22. p Hob. Rep. in Bridgmans Case q Croke Rep. Hil. 8 Char. r Littlet l. 3. c. 7. sect 440. s L. cum hi § si cum lis D. de transact t Coke par 1. Instit l. 3. c. 7. sect 440. u Littl. l. 3. c. 7. sect 440. Brownl Rep. 2. Admiral Court ibi in haec verba Note says the Report that it was urged by Haughton that the intent of the Statute of 13 R. 2. cap. 5. was not to inhibit the Admiral Court to hold Plea of any thing made beyond Sea but only of things made within the Realm which pertains to the Common Law and is not in prejudice of the King or Common Law if he hold plea over the Sea and that this was the intent of the Statute appears by the Preamble w Coke par 4. Instit c. 74. x Coke ibid. cap. 22. y Cod. Ms. de Adm. Angl. Vulgo Vocar Lib. Nig. Adm. in fo 29. z Hill 8 Char. a Hob. Rep. case of Don Diego Serviento de Acuna against Jolliff and Tucker b Hob. Rep. Mich. 9 Jac. Case Palmer against Pope Morisot lib. 1. cap. 36. Port-Town The Lord Coke in par 4. Instit cap. 22. in his Answ there to the fourth Objection makes mention thereof by the name of Port-Town as infra Corpus Comitatus The Port of Gado is part of the Sea the Port-Town of Gado is upon the Continent of Barbary c L. 59. D. de Verb. Sig. Thamesim Prolemaeus Jamissam Dio Himensam Vocat An Testamentum factum in Portu cujusdam Civitatis Soldani dicatur factum in Terris-Soldani Bald. in Rub. D. de Rer. Divis in 6. Col. in prin dicit quod tempore suo hoc fuit revocatum in dubium Dicatur Quod Non Quia Portus est Publicus ita Christianorum sicut Sarecenorum Nam hoc est introductum Jure Gentium
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
good use in one age may afterwards be otherwise in another specially if the Rule Cessante Ratione cessat Lex should hold in this case as in others The Fiery Brazen Serpent when first erected was of happy use yet when abused by the people Hezekiah brake it in pieces yea though of Divine Institution yet when it became a snare to the people that good King did not scruple to call it Nehushtan The Court of Admiralty is one of the Courts Temporal one of the Courts of our Soveraign Lord the King and long since owned as such as appears by the Resolutions upon the Cases concerning the Jurisdiction of the Admiralty in Anno 1632. If the Court of Admiralty be one of His Majesties Temporal Courts then the old Argument of the Conservation of the Crown-Rights seems not to hold in this case and only for that Reason as to Prohibitions against the Admiralty as well for that the said Court is a Court Temporal as that it is one of His Majesties Courts specially in Cases that are either Locally or Materially Maritime It may not therefore be much material to inquire whether Prohibitions do lye as well against Temporal as Spiritual and Eccsesiastical Courts For admitting a Prohibition according to the Learned Fitzh g to be A Writ for the forbidding any Court either Spiritual or Secular to proceed in any Cause there depending upon suggestion that the Cognition thereof belongeth not to the said Court yet it is presumed that this doth not concern such Cases as primo intuitu appear to be Locally Maritime or according to the nature thereof have been time out of mind properly of the Admiral Cognizance For without doubt the suggestion mentioned in the said definition doth not in construction of Law pretend to any thing beyond the very truth of what is suggested or so as to transplea a Cause from one Jurisdiction to another absque minimo fumo probationis of the truth and reallity of the suggestion or that the Cognition of the Cause belongeth not to the Court Prohibited Thus having seen what a Prohibition is which in truth is no more but this viz. A Charge by Writ to forbear to hold Plea either in some matter or manner which as is supposed or suggested a man dealeth in beyond his Jurisdiction or otherwise then Law will warrant It follows That Every Prohibition is either Prohibitio Juris by the Law it self Or Prohibitio hominis where the Ministery of a competent Judge is used or Prohibitio Facti of meer Fact where it hath no fufficient ground or foundation in the Law The Second of these viz. the Ministery of a competent Judge is so essential as without which neither of the other can proceed Prohibitio Juris is a very Prohibition in it self and therefore it is a contempt to sue against it Prohibitions of Law are such as are set down by any Law or Statute of this Land whereby Ecclesiastical Courts are interdicted from dealing in the matters in such Statutes contained Such are the Statutes of 2 Ed. 6. cap. 13. whereby Judges Ecclesiastical are forbidden to hold Plea of any matter cause or thing being contrary or repugnant to or against the effect intent or meaning of the Statute of Westminster 2. cap. 3. the Statutes of Articuli Cleri Circumspecte agatis Silva Caedua viz. 43 Ed. 3. cap. 3. The Treatise De Regia Prohibitione Stat. 1 Ed. 3. cap. 10. Such also is the Statute of 9 Ed. 2. cap. 2. There are also other Statutes declaring in what Cases Prohibitions will not lye Such are the Statutes of 9 Ed. 2. cap. 1 4 5. Also 18 Ed. 3. cap. 5. 50 Ed. 3. cap. 4. Prohibitions of Fact are such as having no sollid foundation as the other on the Laws and Statutes of this Kingdome may yet pro tempore have some kind of operation like Prohibitio Juris because therein also is Prohibitio hominis or the Ministery of the Judge or Superiour Magistrate Such Prohibitions of Fact where they happen may administer more matter for Lawyers to work on then possibly the merits of the Cause require and have in former times occasioned several Complaints by reason of the perplexity of Law-Suits uncertainties in matters of Jurisdiction multiplicity of litigious Controversies excess of Charges delayes of Proceedings retardations of Justice and the like Hence it was that Sir Tho. Ridley in his View of the Civil and Ecclesiastical Law so long since on this Subject said That the Right of the Supreme Magistrate is not to be supposed by Imagination but to be made plain by Demonstration And so both the Statute of 18 Ed. 3. cap. 5. is whereby it is Provided That no Prohibition shall issue but where the King hath the Cognizance and of right ought to have which is very observable And also by the fore-mentioned of 2 Ed. 6. which prohibits Prohibitions to be granted otherwise then upon sight of the Libel and other Circumstances in the said Statute expressed By which it is intended the meaning of the Law-givers was not that every idle suggestion of every Atturney should breed a Prohibition but such only should be granted as the Judge according to Law should think worthy thereof if there were Right to deserve it Where the said Sir Thomas Ridley goes on and says That as emulation between the two Laws in the beginning brought in these multitude of Prohibitions either against or beside Law so the gain they brought to the Temporal Courts maintaineth them which also they are his words makes the Judges that they sesse not Costs and Damages in Cases of Consultation although the Statute precisely requires their assent and assignment therein because they would not deterre other men from suing out of Prohibitions and pursuing the same Though this was the Observation and these the very words of Sir Thomas Ridley upon this Subject in his time yet we may not thence inferre that so it is also now in our time specially now that Justice runs again in its proper channel and her ballance equally poized It was too true that in late years of unhappy memory the said words and observation of that Civilian were too sadly verified which now no doubt will in some short time as is already in a good degree be completely rectified In order to a Prohibition there is to precede such a suggestion as may be proved not such a suggestion as is not capable of proof Improbable suggestions lay no foundations Non-Entities are no Basis for Existencies It hath been a Rule without Exception ever since the Creation That Ex nihilo nihil fit By suggesting the Place where a Contract is supposed to be made to be at Burdeaux in France in Islington in the County of Middlesex seems to imply as if the alledging the Place viz. to be within the body of some County within the Realm were essential for the entituling of that Jurisdiction where such suggestion is made to a
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
of this Treatise to which the Reader is referred A Surmize or Suggestion in certain Cases is doubtless a very Legal Expedient yet possibly some men will no more agree with others of their fellow-rationals in suggesting a Contract to be made in the Port of New-haven upon the Continent of France then if they surmiz'd it to be made in the Bay of Biscay upon the Continent of Spain To this purpoâ—e very memorable is that fore-mentioned Case of Susans against Turner where it is said That if a Suit be commenced 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 The Fact is re vera super altum mare notwithstanding which the Jurisdiction of the high Admiralty of England seems as that Case puts it to be in point of Cognizance subordinated to a bare surmize or suggestion though in re minus vera In matters of an inferiour alloy it is no superlative argument to infer a thing ought to be so because it hath been so much less in point of Jurisdiction Though it be a common Rule in Law that ex facto jus oritur yet this is ever to be understood non de facto supposito sed vero It is yet too fresh in memory to escape observation how of late unhappy years Prohibition have been prayed even by such as in the self-same Case had before admitted the Jurisdiction of the Admiralty by pleading there yea when by the Libel it could not appear that the Contract whereon the Action was grounded was made out of that Jurisdiction Insomuch as it became most mens policy that suspected the success of their Cause in one Jurisdiction to endevour by the art of surmizing the removal thereof to another And this though the Case in it self never so clear of Admiral Cognizance and after themseves had submitted to the Jurisdiction This had but a slender affinity with what is reported in the Case between Jennings and Audley where Prohibition was prayed to the Admiral and the Libel shewed to the Court which contained the Contract was made in the Straights of Malago within the Jurisdiction of the Admiralty and doth not say upon the deep Sea And it was agreed That in all Cases where the Defendant admits the Jurisdiction af the Admiral Court by Pleading there Prohibition shall not be granted if it do not appear by the Libel that the Act was done out of their Jurisdiction The like we find in the Case of Baxter against Hopes In which it is said That if the Defendant admits the Jurisdiction of the Court then the Court will not upon a bare surmize grant a Prohibition after the admittance of the party himself if it be not in a thing which appeareth within the Libel that is that the Act was not made within the Jurisdiction of the Sea And to this difference all the Court agreed So that for the same party in the same cause to surmize and move for a Prohibition against that Jurisdiction to which himself had formerly submitted and in a Cause which by the Libel appears not other then Maritime seems quite beside the Rule and Practice of Law To conclude this point of Forraign Contracts made and other things done beyond the Seas The Merchants Case Mich. 8 Jac. in the Kings Bench may not be omitted It is therein thus reported viz. Henry Yelverton moved the Court for a Prohibition to the Admiralty Court And the Case was There was a Bargain made between two Merchants in France and for non-performance of this Bargain one Libelled against the other in the Admiralty Court And upon the Libel it appeared that the Bargain was made in Marcelleis in France and so not upon the deep Sea and by consequence the Court of Admiralty had nothing to do with it And Flemming Chief Justice would not grant a Prohibition for though the Court of Admiralty hath nothing to do with this matter yet insomuch as this Court cannot hold Plea of that the Contract being made in France no Prohibition but Yelverton and Williams Justices to the contrary for the Bargain may be supposed to be made at Marcelleis in Kent or Norfolk or other County within England and so tryable before us and it was said that there were many Presidents to that purpose and day given to search for them This was the Case wherein it appears the Bargain was made beyond the Seas and between Merchants yet said the Admiralty hath nothing to do therewith because not upon the deep Sea nor that Court hold Plea thereof because made in France therefore according to Flemming Chief Justice no Prohibition but Yelverton and Williams Justices to the contrary the Contract being supposable to be made at Marcelleis in Kent or Norfolk Therefore a search for Presidents of Contracts though really made beyond Sea yet supposed to be made in some Forraign parts beyond Sea in England as Marcelleis in Kent or Norfolk or the like This could not be so much out of any necessitous ground to accommodate the matter to a tryal somewhere for prevention of a total failure of Justice as in order to a removal thereof from the Court of Admiralty where it actually depended It is now nigh thirty years since in the Royal Presence it was unanimously resolved and subscribed by all the Reverend Judges of both the Honourable Benches viz. Febr. 1632. upon the Cases of the Admiralty-Jurisdiction That if a Suit be commenced in the Court of Admiralty upon Contracts or other things done beyond the Seas no Prohibition is to be awarded CHAP. X. Of Judicial Recognizances and Stipulations for Appearance and performance of the Acts Orders Judgments and Decrees of the Court of Admiralty As also whether the said high Court of Admiralty of England be a Court of Record ALthough the Court of Admiralty time out of mind hath ever used to take such Recognizances and Stipulations for Judicial Appearances and due performance of such Acts Orders and Judgments as are made and given in the said Court yet this Ancient Practice of the Admiralty though so adequate to the genuine rights of Judicatories and Tribunals of Justice quatenus such hath not escaped a Contradiction founded upon this assertion That the Court of Admiralty is no Court of Record Such as hold Prohibitions may be granted to the Court of Admiralty upon the ground or reason aforesaid seem to model the Argument Syllogistically and say That for the taking of Recognizances against the Laws of this Realm Prohibitions have been and ought to be granted But the Court of Admiralty doth take Recognizances against the Laws of this Realm Ergo c. The Minor Proposition is said to be proved thus viz. No Court being not a Court of Record can take such Recognizances But the Court of Admiralty is no Court of Record Ergo c. That unhappy Minor
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
and to award satisfaction to such as suffered wrong and damage But also that those very Laws and Statutes which were so to be Corrected Declared Expounded and Conserved by the Authority of the Office of the Admiralty were the Sea-Laws published at Oleron by King Richard the First So that the said Laws of Oleron gave the Rule and seems to be the usage concerning the Admiralty in the time of Edward the Third wereof the said Statute of 13 R. 2. speaks and by which Laws all Maritime affairs whether upon or beyond the Seas are properly Cognizable in the Jurisdiction of the Admiralty And in those Laws of Oleron so published by Richard the First are comprehended the matters of Admiral Cognizance whereunto that Form of Proceedings in these Records mentioned to be ordained by Edward the First and afterwards to be resumed revived and continued by Edward the Third relates Which very Records are also verbatim transcribed and published by the Lord Coke in that part of his Instit concerning the Court of Admiralty which speaks of the Superiority of England over the Brittish Seas and of the Antiquity of the Admiralty of England which he there proves expresly as high as to the time of Edward the First and by good inference of Antiquity and Ancient Records much higher For it appears by Ancient Records That not only in the days of King Edward the First but also in the days of King John all Causes of Merchants and Mariners and Things happening within the Floud-Mark were ever tryed before the Lord Admiral Again For the clearer understanding of what was the Usage in the time of Ed. 3. concerning the Admiralty it may be observed That in the beginning of these Records in Edward the Third's time it is said That a Consultation was had and the whole Bench of Judges advised with To the end that the Form of Proceedings heretofore ordained by Edward the First and his Councel should be resumed and continued not only for the retaining and conserving the ancient Superiority of the Sea of England but also the Office of the Admiralty as to the Correcting Expounding Conserving and Declaring the Laws and Statutes long since made by his Predecessors for the maintaining of Peace and Justice c. If upon a full Consultation in Ed. the Third's time That Form of Proceedings which had been formerly ordained by Ed. the First and his Councel shall be again resumed and continued it seems then requisite in the next place to inquire a little farther what was ordained by the said Edward the First and his Councel over and above what is already mentioned in the said Record And it appears that in the days of the said Ed. the First thâ—râ— was a good provision and remedy ordained for such Complainants as by Prohibitâ—ons issuing out of one Court to surcease the Legal prosecution of their rights in another could obtain redress in neither For by the Statute of the Writ of Consultation in Anno 24 Ed. 1. It is enacted That where there is a surceasing of Proceedings upon Prohibitions and the Complainants could have no remedy in the Kings Court that then the Lord Chancellour or Lord Chief Justice upon sight of the Libel should write to the Judges before whom the Cause was first moved that they proceed therein notwithstanding the Kings Prohibition directed to them before In a word therefore The said Statute of 13 R. 2. mentions the Usage in the time of Ed. 3. Edward the Third resumes and continues the Laws of Oleron published by Rich. 1. and what was ordained in the time of Ed. 1. And Edward the First ordained as in the Records aforesaid and Statute of Consultation The Expositor of the Terms of Law in his description of the Lord Admiral says That he is an Officer to Judge of Con Contracts between party and party concerning things done upon or beyond the Seas And in another of ancient Authority it is said in these words viz. That if an Obligation bear date out of the Realm as in Spain France or such other it is said in the Law and truth it is they are the Authours words that they be not pleadable at the Common Law Also the Learned Mr. Selden in the fore-cited place says That the Jurisdiction of the Common Law extends not it self beyond the Seas and without the Realm of England For as he speaks In the Law of the Land it is reckoned among the Priviledges of such as are absent That they who shall be out of the Realm of England at the levying of a Fine of any Land and making Proclamation thereupon are not so bound either by a yearly prescription as heretofore or by a five years prescription as is usuall of later times but that their right remains entire to them upon their return home So that being beyond Sea and without the Realm of England at that time and nothing of prejudice in that case fastned on them by reason of any Non-Appearance it seems as without the reach of the Common Law And Mr. Selden in the same place proves That to be beyond the Seas or extra quatuor maria doth in the Common Law-Books signifie the very same thing with extra Regnum And again Mr. Selden for 't is but due as well to the Truth as his Memory to repeat his Authority in the same place asserts concerning Things relating to Actions for Matters Maritime That they were not wont to be entered in express tearms heretofore in the ordinary Courts of the Common Law whose Jurisdiction was ever esteemed of such a nature that an Action Instituted about a matter arising in any other place then within the bounds of the Realm was by the ancient strict Law always to be rejected by them After which manner as it hath been a Custome now for many years that an Action ought to be rejected unless the matter have its rise within the Body as they call it of the County that is within some Province or County of the Island usually given in charge to certain Governours or Officers known to us by the name of Sheriffs So also is it in the Sea-Province belonging by the ancient received custome to the high Admiral or his Deputies not only so far as concerns its defence and guard but also as to matter of Jurisdiction Likewise in the same place Mr. Selden in honour of the Admiralty says That in ancient Records concerning the Customes of the Court of Admiralty It was an usual custome in the time of King Henry the First and of other Kings both before and after him That if any man accused of a capital crime done by Sea being publickly called five times by the voice of the Cryer after so many several days assigned did not make his Appearance in the Court of Admiralty he was banished out of England de mer appurtenant au Roy d'Angleterre or out of the Sea belonging to the King of England for forty years more or