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
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
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-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 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
Cognizance of the Cause grounded upon that suggestion so that the Place seems to be of such Jurisdictional weight as not capable of being translocated by the highest strength of Imagination which may present strange things in Apparitions but cannot possibly enervate the energy of Truths and Reallities And thence possibly it is that for prevention of improbable surmizes as a suggestion may be quasi Causa sine qua non of a Prohibition so the said Statute of 2 Ed. 6. cap. 13. provides that probability by witnesses which cannot be without verity be a due requisite of suggestions The Lord Coke upoâ— this Subject of suggesting and surmizing viz. of places beyond Sea to be as within the Body of some County within this Realm doth acknowledge That there is variety of Opinions in the very Books of the Common Law upon this point This kind of suggesting and surmizing did in late years of fatal memory much impede the Judicial Proceedings of the Admiralty when it was no rare thing to meet with a suggestion of a Contract to have been made or other thing done upon the Land in some certain place within the Body of some County that really and in truth was made or done upon or beyond the Seas and farther possibly then the suggestor ever saw in a Map The Civilians say there are certain Cases wherein Prohibitio vim suam non exercet whereof one is Quando aliquid prohibetur sinel Causa and the Law of this Realm allows another and that is Quando Consultatio conceditur Prohibitions in the Law there are of other kinds though not so pertinent to the purpose in hand Such is the Writ Indicavit as in matter of Tithes This lyeth also for the Patron where the Incumbent is impleaded for the Advowson or right of Patronage in a Spiritual Court though it lyeth not till the Libel be brought to be viewed in Chancery Et Lis Contestata And it lyeth only before Sentence is given in the Ecclesiastical Court being afterwards void Lastly a Prohibition ceaseth and loseth his vertue after a Consultation is granted as appears by the Statute of 24 Ed. 1. which declares in what Cases a Consultation is grantable which again is afterwards more full in the Statute of 2 Ed. 6. cap. 13. whereby it is enacted That a Consultation shall be granted for default of proving the suggestion and double Costs and Damages as aforesaid awarded to the party hindred by such Prohibition against him that so pursued the same And where a Consultation is once truly granted the Judge formerly prohibited shall according to the Statute of 50 Ed. 3. cap. 4. proceed in the Cause notwithstanding any other Prohibition thereupon provided the matter in the Libel be not altered CHAP. VII Of Fictions what a Fiction in Law is how farre and in what cases Fictions may be used according to the Rules of Law BY Fiction is here intended no other then such as the Law it self intends no other then such as being authorised by Law and introduced upon a warrant of Law hath in operation the due effect of Law As for other Fictions the Law understands them but as meer Cyphers tollerating none but such as are grounded upon and regulated according to the just Principles of the Law The Essence of Law being more Rational her Designs more Equitable her Mediums more feasible and her style more serious and venerable then to hazard either under the Conduct of any Notions inconsistent either with Equity or Possibility For the Law doth imitate Nature Such Fictions therefore as cannot endure the Test of Law are Fictions indeed proper only for a Comment upon Lucians Dialogues To proceed therefore to the Law A Fiction in the eye of the Law and such whose Practice may be warranted by Law is Legis adversus veritatem in re Possibili ex justa causa dispositio So that it is Legis non hominis dispositio it must be a Fiction framed according to the Rules of Law not whatever is imaginable in the conceptions of Man This word Dispositio is sometimes taken for a quality of the mind or imperfect habit that is an Inclination or Affection But in this place it signifies an Act proceeding from good Authority of Law for it must be Ex justa Causa which word Just hath divers acceptations or significations in the Law As sometimes it is opposed to that which is wicked or contrary to Justice and Equity whence it follows that the Suggestor may not frame or model a Fiction opposite thereto Sometimes the word Just is in the Law taken for Full or Perfect And hereby all defects and imperfections for want of any Legal Requisites in the Suggestors Notions to the fabricating of a Fiction are excluded Such are the defects or imperfections in respect either of Equity or Possibility For as the suggestions are to arise ex justa causa so they are to center in re possibili But to prevent mistakes let it not be hence inferred as if it were here implyed that all Surmizes and Suggestions at Law in order to remove or transplea a Cause from one Jurisdiction to another were such Fictions as fall not within the compass of the said Definition of a Legal Fiction If any such inconsequent construction be made of the Premises or shall be made of what follows it is no mans errour but the Readers For though all Fictions whether Legal or illegal may be Surmizes Suggestions or Suppositions yet all Surmizes or Suggestions are not illegal Fictions And many of the Suggestions used in the Practick part of the Law for the end aforesaid are both true equitable and possible and consequently probable and so of good and necessary use in practice according to the Law in the Statute of Prohibitions in that behalf provided And this not by way of digression but ad majorem necessariam Cautelam to prevent all mis-apprehensions The foresaid Definition of a Fiction Legal not finding general entertainment among the DD it may be free to incline with the more received opinion to Bartols definition thereof whose words are these viz. Fictio est in re certa ejus quod est possibile adversus veritatem pro veritate a jure facta assumptio A Fiction is an Assumption of Law upon an untruth for a truth against the truth in some thing possible to be done but not done So that Surmizes and Suggestions in Judicial Practice that are true are not as was aforesaid Fictions In this definition it is said to be in re certa to difference it from Presumption which ever fixes upon something that is dubious yet carries so much of truth with it as without better evidence is not counterpoized But Fictio fit super Certo Super Falso Certo fingitur Super Vero Incerto praesumitur Likewise in in this definition it is said to be Ejus quod est possibile because Super eo quod
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
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
be preserved for no Contribution but where the Ship arrives in safety Within the Cognisance of the Jurisdiction of the Admiralty and wherein Merchants and Mariners are principally concerned are also all causes of Reprizals known to us by the Words Reprisaliae or Letters of Marque which in the Law have also other Appellations as Pignoratio Clarigatio and Androlepsia For it is supposed that those Reprizals now commonly used were first introduced in Imitation of that Androlepsia among the Greeks with whom it was a certain Right in case of Murder to apprehend and seize any three persons whether Citizens or other of any such place or City into which the Murtherer had fled for shelter making it his place of Residence and such persons to keep in safe custody until upon demand the said Murderer were delivered up to Justice This was Androlepsia with the Greeks which as some suppose gave an hint to other Nations for these Reprizals which are now of practice more common then commendable The word Clarigatio is more acceptable to express Reprizals then either Androlepsia or Pignoratio fot Pignoratio is a word too Generall and Androlepsia too Special as being only by the Authority of such as required the Revenge of Murder and upon no other accompt then that The word Reprizals is from the French reprendre reprise that is to Retake or to take again one thing for anorher albeit this may not be by any Private Authority but only by the Authority of that Prince whose subject the Injured person is and only in case Justice be denyed or illegally delayed by that Prince whose subject the Offender is For before any concession of Letters of Reprizal or Marque there ought to precede the Oath of the party Injured or other sufficient proof touching the pretended Injurie the certain loâ—s and damage thereby sustained the due prosecution for obtaining satisfaction in a Legal way the denyal or protelation of Justice the complaint thereof to his own Prince Requision of Justice by him made to the supreme Magistrate where Justice in the ordinary course was denyed persistency still in the denyal of Justice all which precedent Letrers of Reprizal under such Cautions Restrictions and Limitations as are consonant to Law and as the special Case may require may issue by the Jus Gentium for such Law-Casuists as question whether Reprizals are Lawful are in that point rather Divines then Lawyers Grotius who was both resolves it in the Affirmative wherein Nations as well as Persons the Jus Civile as well as the Jus Gentium agree the Legality thereof whether you understand General and Universal Reprizals which is quasi Bellum Privatum or Special and Particular Reprizals which is quasi Duellum Publicum The precedent Requisites being duely observed Reprizals may issue by the Authority of the Prince in whom alone resides the power as of making War and Peace so also of granting Letters of Marque And this notwithstanding any Lawes to the Contrary that seem to inhibite the same But with respect to the National Treaties and Coventions which in this point may at times vary and alter the Case in Conformitie to such National Contracts A due Administration of Justice is not the Least sense wherein Princes are stiled Gods To deny or delay Justice is Injustice Justice is every mans Right who hath not forfeited what he might claim by the Jus Gentium therefore the Prince within whose Territories Justice is denyed or delayed is Accomptable to that other Prince whose Subjects suffer thereby and by the Law Subjects may be punished for their Prince's Omissions in what the Law of Nations requires And that Prince who unlawfully detained the Rights of a Subject under another Prince or suffers it within his Territories to be detained and in the Ordinary Course of Law denies Restitution he may at length be compelled to Restitution vi manu militari He that in the way of Reprizals apprehends at Sea another mans Goods ought not to keep them in his own private Custody and to Convert them by his own authority to his own private use but ought to bring them to some Publick Place in order to a Judication according to Law yet they are to remain with the Captors till by them they are thus brought and submitted to Publick Justice by the authoritie whereof Commission may issue for Landing or unlading the said goods for Inspection for Inventorying and for Sale either of such part thereof as upon such Inspection shall appear to be Bona peritura or of the whole in case the Court shall see Cause which is to order payment out of the Proceed thereof to the party to whose use the Letters of Marque issued for and towards satisfaction of his debt and damages after deduction of all dues duties necessary Costs and Charges relating to the Seizure either Judicially or Extra-judicially And the said debt and damages with all Costs and Charges being fully satisfied the Remainder or Overplus if any which seldome happens in such cases is to be Restored to their Owners from whom they were taken and the said Letters of Marque thenceforward to cease Such Letters of Marque issue not without good and Sufficient Caution first given in Court for the due observance thereof according to Law the transgression whereof creates a forfeiture of such Judicial Recognizance or Stipulation and the Captor for the better management of a Judicial Proof in order to a right Decision according to the merits of the case is to produce part of the Seized Mariners to be Sworn and Examined according to Law as also to Exhibite all the Ship-papers and Evidences found a Shipboard and till Judication he may not break bulk of his own private authority nor suffer any imbezilement of the Lading nor Sell Barter or otherwise alter the property thereof without Special Commission from the Court for so doing In the Law there are certain Persons and Things Exempt from being Lyable or Subject to Reprizals They whose Persons are Exempt have also their goods Free. Reprizals granted against any Kingdome or State are understood as against such only who inhabit therein and not against such who though originally of that Countrey against which the Reprizals are yet inhabit elsewhere possibly in the same Kingdome whence the Letters of Marque issued for he is not in this point reputed of that Kingdome State Province or City wherein he doth not inhabite albeit he were born therein It is not the place of a mans Nativity but his Domicill not of his Origination but of his Habitation that subjects him to Reprizals the Law doth not consider so much where he was Borne as where he Lives not so much where he came into the world as where he improves the world provided he hath there Decenniated or inhabited Ten years or less in case he hath born Office there or paid Scott and Lott or removed his Family thither or his Estate or the greater part
soon be Bankerupt So that if it escape the private Arrest of some Fained or Fictitious Action there is no fear of a General Embarg Elenchus Authorum OR The Names of the Authours Quoted in this TREATISE AeSchilus Accursius Afflictus Africanus Albericus Alexander Alonzo de Chavez Andreas Masius Angelus Annot. in Sac. Bib. Edit 1651. Aristotle Athenaeus Aurelius Aul. Gellius Baldus Bartolus Bernar. Gerardus Boerius Boroughs Brownlow Bullenger Caius Caiciapulus Cagnolus Calvinus Calistratus Carbo Cassanaeus Castrensis Casus Caesars Comment Coelus Rhod. Caepolla Celsus Cicero Comines Consul del Mar. Corp. Jur. Civil Corp. Jur. Can. Codinus Coke Corvinus Cowell Crook Curopalates Curtius Cynus Cothereou Pet. Coth Demosthenes Diodor. Sic. Dion Afric Doct. Stud. Domin Niger Donellus Durandus Faber Fascic de sup Adm. in arce Londinensi Fazellus Ferrandus Fitzherbert Fleta Florus Forster Fragm Hist Aquit Fragm Ascript Polib Fulgosius Galen Gellius Gerardus Godwyn Goldsborough Gothofred Granat Decis Greg. Gemist Grotius Herodotus Hevedin Rog. Heved Hieron de Chavez Hobard Homer Horace Huntindon Jason Isernia Junius Justinian Larrea Leonard Leon. Marsisc Leunclavius Libanius Littleton Livius Lucius Florus Lupus de Magistr Mainus Maranta Marsicius Malmesburiensis Math. Paris Masius MS. Admtis voc Liber Niger Monstrelatus Morisotus Moursius Noy Omphalius Oleron Sea-Laws Ortelius Oswaldus Owen Panormitan Papinianus Paris Math. Paris Paris de Puteo Paulus Paul Emil. Peregrinus Perinus Petr. Cothereou Plato Plinie Plutarch Polybius Pompeius Trog Pomponeus Pruckman Fred. Pruck Ptolimaeus Purchas Purpureus Ramus Ranulphus Castrensis Raphael Rhodiae Leges Ridley Rodorig Zamerano Rupertas alià s Robertus le Monachus Sabellicus Salycet Scardius Scaevola Selden Seneca Siffridus Sigebertus Sigonius Speculator Spelm. Consul Spelm. Glossar Spiegelius Strabo Suetonius Suidas Tacitus Tapia Terms of Law Theophanes Thucidides Tibullus Triphoneus Tullus Turpinus Tuschus Valer. Max. Valer. Forster Victor Virgill Vlpian Vopischus Zamerano Zasius Zonarus THE CONTENTS OF THIS TREATISE viz. CHAP. I. ADmiral the Etymon or true Original of the word with the various Appellations thereof CHAP. II. The Original of Navigation and the Sea-Laws with the Antiquity of the Office of high Admiral in the Transmarine or Forraign parts of the world CHAP. III. The Antiquity of the Maritime Authority together with the Office and Jurisdiction of the Admiralty within this Kingdome of Great Brittain CHAP. IV. Of Persons Maritime As also of such Things as are properly Cognizable within the Jurisdiction of the Admiralty of England And in what method it proceeds to Judgement CHAP. V. Of Laws and Jurisdictions in general with the several kinds and degrees thereof CHAP. VI. Of Prohibitions Their several kinds Causes and Effects in the Law CHAP. VII Of Fictions what a Fiction in Law is how farre and in what cases Fictions may be used according to the Rules of Law 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 CHAP. IX Of Contracts and Bargains made and other things done Beyond the Seas And whether the Cognizance thereof doth belong to the Admiralty 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 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 CHAP. XII Of the Jurisdiction of the high Admiralty of England Stat. 13 R. 2. cap. 5. Stat. 15 R. 2. cap. 3. Stat. 2 H. 4. cap. 11. Stat. 27 Eliz. cap. 11. 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 A VIEW OF THE ADMIRAL JURISDICTION CHAP. I. Admiral the Etymon or true Original of the word with the various Appellations thereof THE Glossographists and others have digg'd very deep to come at the Root of this word Some are of opinion that the word Admiralius is derived from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Salsus or from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Salsugo or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Salsigo or from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quasi Salmacidus Salsus à Salsugine Elementi cui imperat from the Saltness of that Element where properly his Authority and Jurisdiction doth reside vel quod in salso mari suum exercet imperium But this not seasoned with sufficient reason is held but as an unsavoury derivation from the great improbability that any in imposing of Names should quit the thing it self wherein the Denominated is most inherent and flie only to the more remote qualities thereof As if you should say that the Admiral in rebus Maritinâ—s were rather Salinarius then Marinarius as is truly observed by the Learned Sir Henry Spelman So that if you offer this Derivation though cum grano vel mica Salis it will not pass Therefore others are of opinion that it is derived from the French Ameral signifying an high Officer or Magistrate in Sea-affairs But this is as if you should say to keep to the Metaphor of a Liquid Element That Ice dissolved is the Mother of Water rather then Water frozen the Mother of Ice No doubt but Ameral in French now signifies such an high Officer or Magistrate but where was that French word Ameral when the Office of Admiral by other Appellations almost homophonous to that was in being but not in France That Office by other Names Appellative not much dissonant to this of Admiral was anciently known in the world when no such thing in France for the Romans themselves anciently had not these Admirales for so then called till Constantine in whose time isti Admirales Magistratus creati sunt that is among the Romans for they were known to other parts of the world long before Constantine the Great Anno 330. So that it may be truly said that this high Officer or Magistrate in Sea-affairs is in the French now rendred by the word Ameral But not that the word Admiral is thence derived Therefore others conceive it is derived from the Saxon Aen Mere eal that is over all the Sea This passes for a currant derivation and exposition of the word Admiral with us possibly because it sounds both so prettily and pithily for we are now as apt as our Neighbours t'other side the water to be alamoded as well with fine words as other vanities Yet this being a derivation of our own Generation it may not be much controverted specially for that others as well as those of our own Nation have acknowledged the word Admiral to be derived from the Saxons with whom the word Hadmiral doth signifie Praefectum maris Others there are who will have it derived
in peaceable possession of taking Cognizance and judging all actions done in the said Sea c. the said Procurators in the names of their said Lords do pray c. that speedy delivery of the Goods and Merchandizes taken and detained be made to the Admiral of the said King of England to whom the Cognizance of the same of right appertaineth so that without disturbance of you or any other he may take Cognizance thereof and do that which appertaineth to his Office In which Record it is observable that even in those days that is before the time of Edward the first the Kingdome of England had not only the Soveraignty of the Brittish Seas but also an Admiral empowered with a Jurisdiction Maritime to take Cognizance and judge all actions done on the Sea to doe Justice execute the Laws of the Sea maintain Peace Right and Equity according to the Laws and Ordinances of the Sea and in a word to minister Justice in all things that to the Office of an Admiral appertain To this might be added King John's Ordinance made at Hastings touching the Soveraignty of the Brittish Seas in the point of striking Sail or veiling Bonnets by the vessels of Forraign Nations to the Kings Ships which Ordinance was made long before the Reign of Edward the first and wherein mention is likewise made of the high Admiral of England But this that hath been said may abundantly suffice both to prove and illustrate the Antiquity of the high Admirall of England and his Jurisdiction in matters Maritime If it be granted that Frustra sunt Arma foris nisi est Consilium domi it cannot well be denied but that Frustra sunt Arma domi nisi est Dominium Maris to which as undeniably may be added that Frustra est Dominium Maris nisi est Jurisdictio domi If therefore the Ancient Rights of the Jurisdiction of the Admiralty of England should at any time happen to be impeded by ought not so properly qualified Judicially to conserve the Rights of the Soveraignty of the Brittish Seas might not a Decay of Trade that Cornucope of all National Provisions be justly suspected specially if Neighbour-Nations should thence pretend to spy any thing like a flaw in Englands Trident as if her Dominium Maris were in part dismantled the Plenty as well as the Safety and Security of these Kingdomes much under God consisting in the Power of the Royal Navy those Pyramids of Majesty or Floating Garisons The Dominium Jurisdictio Maris are such Confederates you cannot prejudice the one and not the other And therefore to scruple that Jurisdiction those Ancient Rights whereby our own are conserved and secured may not be convenient So that to doubt whether the established Jurisdiction of the high Admiralty of England may judge of Marine Properties is implicitely and in effect to inferre that the Navy Royall is equipped only to enamel the Seas and take the Air or that their Captures at Sea must evaporate if Bargains and Sales made super altum mare can transferre and alienate properties then doubtless the Admiralty can finally judge and determine thereof Nor let any man think the Admiralty of England is without remedy in case one man impleads another for an Admiral cause in another Jurisdiction for if the Admiralty cannot summon and proceed according to the ancient style practice and known Rights Laws and Customes of that Jurisdiction against such who in matters of Admiral Cognnizance prosecute the Law elsewhere then what is it more then a meer Idaea that hath no real existence beyond the pleasure of the parties litigant nor is that other mis-opinion viz. That the Admiralty may not enforce its own Decrees and Orders worth Consideration for the Executive part is so inherent in a Jurisdiction quatenus such that in effect it is but a lame and imperfect Jurisdiction without a Power Coercive which breaths life and vigour into a Jurisdiction by Execution which otherwise would be but like a Body without a Soul or like an expert Commander Commissioned to fight with his hands manacled behind him Sententia absque Executione est quasi splendidum Justitiae Cadaver This mis-conceit may not be much inferiour to theirs who are dextrous at Translocations by surmises and suggestions if the the circumstance of Locality be too light to be traversable yet it is of weight enough to be surmised or suggested It is not impossible but that the Cognizance of the Admiralty being in part essentiated by the Marine Circumstance of Place may be obstructed by a meer missurmise as to the Locality Suum cuique tribuere is the ultimate Result or Summa Totalis of all Justice whose Ballance is then best poized when it weighs each Individuals Policy with a Consistency to common Interest It may be not less hazardous then chargeable for the Client to complement Justinian with one Fee and Littleton with another If so it will be expedient that he provide two Purses which is but the beginning of sorrows for he must also provide a good stock of Patience to await the event of what will put no issue to the merits of his Cause And in Concurrencies of Jurisdictions a Concurrency of Jurisdictional qualifications as well Intrinsick as Extrinsick seems to be requisite for admitmitting that by a Dedimus potestatem or other Writ of like nature witnesses might be Legally examined at Venice Lisboa or other transmatine parts Sub mutuae vicissitudinis obtentu yet what Judicial improvement can be made thereof especially quando ex facto jus oritur without due intrinsick qualisications calculated for the Meridian of a Maritime Cause But to digress may be to transgress To return therefore to the Antiquity of the Office and Juisdiction Admiral The Authour of the Book entituled Rights of the Kingdome hath several Passages concerning the Office and Jurisdiction of the Admiralty whereof one is pag. 90. That Edgar that Great Monarch was as great a Conquerour by Sea as Aethelstane by Land That it might be easier to shew his four Seas then to set their exact Bounds But in pag. 132. he is pleas'd to say that the Law Maritime is Dark enough with all the Jurisdiction of the Court Admiral So is the Sun to him that will not see where he farther seems to please himself with saying That that Office may be harder then the Name by calling it a strange mixture of Greek and Arabick Yet for the Antiquity of the said Office he doth the Admiralty that right as withal in the same place to assert That the old Ms. del'Office del ' Admiral hath divers Records of H. 1. Rich. 1. and King John speaking of Trials by twelve as at Common Law But that now the practice is much otherwise And that in the Rolls of Ed. 1. the Name of Admiral But not in our Printed Laws that the said Authour knows of till Edward the second And then adds That in Edward the third the Rolls are
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
ought it to be doubted but that in those days there was a true Church of Beleevers as also true Sacrifices and as some hold true Sacraments and therefore not to be conceived but that there was also some Ecclesiastical Law then in force which afterward became much more clear under Moses Law And by way of additament to this in tract of time was the Canon Law established in every Christian Common-wealth which received not as some suppose it 's Original at that time when the General and Universall Councils began to be first held as under Constantine but in the days of the Apostles themselves who gave divers Rules and made many Canons touching Divine Wâ—rship and in order to the salvation of Souls And thus Laws being introduced into the world it could not be but there must be Jurisdictions also without which the Law is but a dead Letter For the clearer understanding whereof know That the word Jurisdictio without the Letter c etymologizeth it self For it is not so called from Juris and dictio as some would have it but from Juris and ditio And so Jurisdictio is quasi juris potestas But this pleaseth not Calvin who in this matter following Ferrand would derive it from Juris dictio and doth charge Accursius with an errour in Judgement for holding it to be derived from Juris ditio though he confesses that Bartol himself and many others do follow Accursius therein whose opinion seems to have the best congruity with reason in the energy of Law though Ferrand's Opinion seems to out-weigh if the comprized matter should be ballanced only by the letters of the word but indeed of the two Accursius hath by farre the more numerous Retinue So that Jurisdictio taken in the large sense as the Genus generalissimum or Plenissima Jurisdictio is nothing else but Potestas de jure Publico introducta cum necessitate juris dicendi aequitatis statuendae The word Jurisdictio taken in this large sense doth properly signifie that Office or Function which the lawful Magistrate doth hold and exercise by the ordinary right of his just power and authority Of Jurisdictions taken in this large sense there are three species or kinds in the Law There is Imperium Merum Imperium Mixtum Jurisdictio simplex And it is called Imperium because it proceeds from the Authority of the Judge and not from any right inherent or residing in the party The first of these viz. Imperium Merum is that Jurisdiction which respecting only the Publick utility is exercised Officio Judicis Nobili and by way of Accusation This hath the power of the Sword contra homines facinorosos and all Capital Offenders And is so called from its purity simplicity and immixture with either of the other kinds of Jurisdictions Of this Imperium Merum Bartoll makes Six several degrees which Jason contracts into Four but Zasius into Three Of these Six degrees of Imperium Merum the First is Merum Imperium Maximum And this resides only in the Prince or in the Supreme Authority In this Bartol doth lodge the Legislative Faculty or power of enacting Laws also the calling a General Council or the summoning a Parliament also the power of Confiscation of Delinquents goods In a word under this Merum Imperium Maximum are contained all things competible to Princes or the Supreme Magistrate And to these particulars which Bartol mentions under this head the DD do add one more and that is the creating of Tabellions General or Publick Notories The Second degree is Merum Imperium Majus This extends to the taking away of life and hath the power of the Sword Under this head also is that Potestas gladii in homines facinerosos forementioned but derivative from the Prince The Third degree is Merum Imperium Magnum under which head is comprehended Deportation or perpetual banishment But these two last degrees Jason comprehends under one and the same head For says he under the power of the Sword in facinerosos homines is comprehended three kinds of Capital Causes viz. First when the Life Natural is taken away either in whole or in part as by dismembration amputation or mutilation Secondly when the Life Civil is taken away as by loss of Liberty and by perpetual imprisonment for such are dead in Law Thirdly when a man is deprived of his Franchise Freedome or Priviledges which he had in any place by a Natural or Civil Right The Fourth degree is Merum Imperium Parvum under which head is comprehended Relegation or temporal exilement which is no more then an extermination whereby a man is commanded out of the confines of his own Country for a season And although Deportatio Relegatio be often used promiscuously in the Law for one and the same yet the Law discriminates them by very different Characters For in Deportation there is a perpetual in Relegation but a temporal banishment And as they differ in the Circumstance of Time so also in the Circumstance of Place For in Relegation the party is only circumscribed and it's part of his punishment that he shall not go out of the limits of such a certain place So Shimei the Benjamite that cursed David in his way to Mahanaim was after Davids death confined by his son Solomon unto Hierusalem and not to pass over the Brook Kidron who upon occasion of his going afterwards to Gath exceeded the limits of his circumscription and for so doing was put to death by Benaiah at the Kings command But now in Deportation the party is not so confined to or circumscribed by any certain place but is quite banished and exiled out of all the precincts of his own Country Again in Deportation the party cannot take his goods with him in Relegation he may but this difference holds not always Likewise under this head is comprized every Corporal punishment provided it be Tortura ad poenam Delicti For if it be Tortura only ad investigationem veritatis then it may be otherwise The Fifth degree is Merum Imperium Minus under which is comprized that moderate Coertion by Corporal Castigations which are ad vindictam Maleficii to distinguish it from Coertio verbalis per officium Merum and is competible with the Office or Function of Magistrates in Authority Also Cognizance of such crimes as are of the lesser and inferiour kind Of this and the last precedent degree or member of Imperium Merum Jason makes but one as formeâ—ly but one of the Second and Third degrees So that although here be Six species degrees or members of Imperium Merum according to Bartolls accompt yet here are but Four according to Jasons computation and to him in this matter the DD do generally incline rather then unto Bartoll The Sixth and last degree is Merum Imperium
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
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
over-flow its banks to the inundation of another it 's most just and safe seasonably to reduce them to their proper Channels Were it true what Bald. says Jurisdictiones penes Principes residere quasi Scabellum the Clashing of Jurisdictions might be an offence only to the Footstool of Majesty but if Jurisdictio ejus ossibus inhaeret as Tapia and others assert then it may be of an higher nature Where divers persons are concredited with Juridical Trust or Authority there the Jurisdiction is either Separate or Concurrent or in Common A Separate Jurisdiction may appertain to a certain number of persons privative or exclusive to all others whereby they are externally qualified to take Cognizance either of other Persons or of other Causes or of other Quantities or of other Places then what other Judges are Juridically qualified for A Concurrent Jurisdiction is that which appertaineth to many Cumulative as when the same Cases are equally subjected to the Cognizance of many Judges yet so that each of them whether one or more by himself or themselves may in solidum hear and determine the Case and he or they only may take Cognizance thereof to whom address by the Complainant is first made and before whom the Suit is first Commenced for in such Cases prevention takes place and in all Competent Jurisdictions wherever the Action is first Commenced there Judgement ought to be given in the Case Thus the Emperial Chamber by an Ordinance there made hath Concurrent Jurisdiction with the Emperour himself save in matters relating to the Fee or Inheritance of the Emperial Crown A Jurisdiction in common appertaineth to many and that cumulative as to all of them so to all of them together and complexive insomuch that one of them may not proceed without the other the Law obliging all of them to be present together in Judgement But whatever Jurisdictions there are in a Nation of how many kinds degrees orders or subordinations soever This is a sure Rule and without Exception Jurisdictiones non sunt confundendae The Bonum Publicum is more Rationally stated and more concerned in rhe equal administration of Justice then to admit the least Confusion in that which is the only Expedient to prevent Confusion for Justice whose office it is not only to doe that which is equal but also to remove that which is unequal is never illustrable through any Mediums that hath the least tincture of Injustice and although for its material Object it ever hath some one External action or other as suppose Equality between Payment and Debt yet for its Formal Object it ever hath Honesty and Conformity unto at least an adequate Consistency with Natural reason comprised in that external Act. Of all Jurisdictions That of the Admiralty or Sea-Affairs hath been the least beholding to the Auxiliaries of the Press in defence of its Ancient Rights and Priviledges against such as would without offence impair the same The Reason probably may be either from the paucity of such as are more specially therein concerned in respect of that numerous Host or Retinue that in fealty to the other Jurisdictions are most prompt Notaries on all occasions oâ— rather in that it is of that excellent use in all Maritime Dominions that the Friends thereof are well assured its worth would be better valued if the want thereof were more smartly felt The Ensuing Treatise is to assert the Rights thereof in part the design of whose highest Ambition being only rather to excite others by this hint to supply the defects hereof by a more full and clear illustration of the Rights and Priviledges of so Ancient and Necessary a Jurisdiction then to convince any by Arguments less perswasive then that Interest whereon some meâ—s Prejudice may be founded Though Merchants and Mariners qua tales be not such able Lawyers as to know how their Maritime Cases should be determined according to the exact Rule of Law yet they are such able Supports to any Nation or Kingdome that they are not to be left sub incerto where or in what Tribunal to find that Rule under such a quality of Juridical Competency as not to run hazards by Land as well as by Sea yet this under the Notion of a Maritime Cause when possibly it is of another Element may not be strain'd in favour of one Jurisdiction in derogation of another nor under the notion of Merchants when posibly they are at best but quasi Mercatores For not every one that buyes and sells is thence presently to be denominated a Merchant but he only who in the way of Trade and Negotiation deals in Moveables for gain or profit upon design of disposing thereof in the way of Commerce either by Importation Exportation or otherwise in the way of Emption Vendition Barter Permutation or Exchange So that he is not properly said to be a Merchant who once and no more doth buy Commodities that he may sell the same for it is not one Act that doth denominate a Merchant but a certain Assidutiy or frequent Negotiation in the Mystery of Merchandizing unless he be matriculated or entred as such in the Society or Corporation of Merchants He also may be said to be a Merchant who by common fame and in the opinion of men is commonly reputed a Merchant They that buy Wares or Merchandizes to reduce them by their own Art or Industry into other forms then formerly they were of are reputed rather Artificers then Merchants unless by their order they are so transformed by the art and industry of others upon design of selling the same to gain thereby in which case they may be said to be rather Merchants then Craftsmen or Artificers And such as buy wares for present money that without altering the form thereof they may sell the same at a future day of payment at a far dearer price then they were bought are reputed rather Usurers then Merchants But Bankers Money-changers and such as deal by way of Exchange are reputed under the notion of Merchants For whereas it is formerly said that a Merchant deals only in Moveables understand that Money is comprised under that notion So also are Ships The Isle of Rhodes anciently was the only Mart of Trade and Commerce in the whole world Antiquity describes that Isle and the City thereof as the only Metropolis of Merchants who though they have a Latitude as wide as the Ocean in point of Trade and Negotiation yet they may not in time of war transport Prohibited Goods or Commodities to an Enemy though designed for the Redemption of Captives Yet such is the Reputation of Merchants that Credit is generally given without the least distrust unto their Count-Books unless some Legal Exception may be raised against the same or other just cause of suspicion And whereas each Merchant hath his peculiar Mark wherewith his Goods are usually marked by way of
discrimination from the goods of other men the Law in favour of so laudable a Custome doth presume the goods to be his whose mark is thereon affixed Not that such marks abstracted from other Concurrent Evidence do of themselves amount to a full proof only they induce such a Presumption as doth without stronger evidence or presumption on the other side more energetical carry the possession for him whose marks they are Nor is it therefore less hazardous then unlawful for one Merchant to make use of anothers mark save when in time of war they strain a point to drive a Colourable Trade which with other the like stratagems the Law will interpret no other then Solertia or Dolus bonus rather then Trade shall be totally obstructed or the Merchants quite discouraged and where the goods controverted happen to have the marks of both the parties litigant in that case his is the best Condition who hath the Possession till by the other party better Cards can be shewed for the Property for a Presumption grounded only upon the marks must ever give place to a Proof of the Title or Property grounded upon an Emption Permutation or the like Nor may the Plaintiff pendente lite make use of that mark touching which the Dispute or Controversie is till there be a Decision in the Case The Interest of the Merchant mainly depending on the Mariners it concerns him to know wherein their Duty consists a right understanding whereof is not with more facility attainable then by a due perpension of those things which the Law it self ascribes as faults to Mariners such in part as these viz. The Mariner may not set sail when under an Embargo or other restraint of Princes nor in Tempestuous weather nor after the time limited by Contract he may not during his Voyage in reference to Ship or Lading doe ought mis-becoming an honest able skilful and prudent Mariner he may not stay in Port or Harbour without cause when a fair wind invites his departure he may not deviate in his Course without just cause or steer a dangerous or unusual way when he may have a more secure passage yet to avoid illegal Impositions he may somewhat change his Course and be excusable he may not unlade his Merchants Goods into another Vessel worse then his own he may not lade any Goods into a leaky or insufficient Vessel he may not over-charge or over-lade his Ship nor stowe Goods above her birth-mark he may not sail without able and sufficient Mariners both for quality and number he may not voluntarily sail by places infested with Pirats Enemies or other places notoriously known to be unsafe he may not transport persons of an obscure and unknown Condition without Letters of safe Conduct or other suspected persons to the rendring Ship or Lading liable or subject to a seizure or surreption he may not lade any Prohibited or unlawful goods whereby the whole Cargo may be in danger of Confiscation he may not use any unlawful Colours Ensigns or Flags whereby his Ship or Lading may incur a seizure he may not being haled at Sea behave himself otherwise then becomes a Prudent Master he may not carry counterfeit Cocquets or other Fictitious and Colourable Ship-papers to involve the Goods of the Innocent with the Nocent he may not with his Vessel engage among the Rocks being thereto not necessitated by the violence of wind and weather nor by night deceived or deluded by false Lights he may not refuse payment of the just and ordinary Duties Port-charges Customes and Imposts to the hazarding of any part of his Lading he may not sail with insufficient Rigging or Tackle or with other or fewer Cables and Anchors then is requisite respect being had to the Burthen of the Vessel he may not sail with other Ship-provisions then what is good and wholesome and sufficient for the Voyage he may not neglect the well moaring of his Vessel in Port he may not sail without one Cat or more in his Vessel he may not suffer the Lading to take wet to be stoln or embeziled he may not permit Debates or Contests among his Mariners to the prejudice of the Merchants Goods he may not let open the hatches of the ship to endanger the Lading he may not prejudice any part of the Lading by any indiscreet or unskilful stowing of the Goods respect being had to quantity nature and quality thereof he may not take up more money upon Bomeree or the Gross Adventure then his Interest is in ship or Lading he may not contrary to Order touch at Ports not necessitated thereunto by contrary winds or otherwise Many other are the faults and miscarriages incident to Mariners these only by way of hint to Merchants who are the greatest sufferers hereby having herein very seldome equivalent reparation the offendors for the most part not sufficiently solvant But here note that he that will charge a Mariner with a fault in reference to his Duty must not think that a general Charge is sufficient in Law but he ought to assign and specifie the very fault wherewith he is so charged In like manner he that will infer such or such a sad disaster to have happened or been occasioned by reason of some fault in the Mariners must not only prove the fault it self but must also prove that that fault did dispose to such a sad event or that such a misfortune could not have happened without such a fault precedent wherein the Mariners though legally qualified as good and competent witnesses for acts done a ship-board yet to exculpate and excuse themselves they are not witnesses without exception save in certain Cases wherein the Law allows them a toleration by way of Juramental purgation And in case of loss or damage to the Lading or any part thereof by reason of such disaster occasioned by or in consequence of such fault of the Mariners the Merchant hath his election in Law whether he will sue the Master or the Owners of the Vessel only he can recover but of one of them And having once determined his election he ought to stick to that In which case if the Master happen to be Judicially condemned by reason of any default in his Mariners he may detain their wages till payment be made and satisfaction given for such damage as he suffered by their neglect for they ought by the Law to refund it out of their wages Ships and other Vessels of that kind were Originally invented for use and profit not for pleasure and delight to plow the Seas not to lie by the walls therefore upon any probable design the major part of Part-Owners may even against the consent though not without the privity and knowledge of the minor part set a Vessel to Sea under such Provisions Limitations and Cautions as by the Law is in that behalf provided yea the same thing may be also effected by the one