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-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
of Great Brittain have an undoubted right to the Soveraignty of the Seas of Great Brittain none but a few Mare Libertines and that for their own Interest ever scrupled Sir Hen Spelman gives us an Account of a very Ancient Record extracted out of the Laws of Hoelus Dha Regis seu Principis Walliae cir An. 928. which for the proof of the said Dominium quasi uno intuitu is here inserted in haec verba viz. Variato aliquantulum Nominis Vocabulo dici hic videtur Huwell Da qui superius Hoêl Dha Latine Hoêlus Hoelus alias Huval quem Malmesburiensis unum fuisse refert e quinque Wallensium Regibus Quos cum Cunadio Rege Scotorum Malcolmo Rege Cambrorum Maccusio Achipirata seu Principe Nautarum vel Marium Praefecto ad Civitatem Legionum sibi occurrentes Rex Anglorum Eadgarus in Triumphi pompam deducebat Una enim impositos remigrare eos hanc coegit dum in Prora ipse Sedens Navis tenuit gubernaculum ut se hoc spectaculo Soli Sali orbis Brittanici Dominum praedicaret Monarcham In this Ancient and Memorable Record King Edgar Neptune-like rides in Triumph over the Brittish Seas giving the world to understand that Dominium Maris is the Motto of his Trident. Consonant whereunto is that which the Law it self says Mare dicitur esse de districtu illius Civitatis vel Loci qui confinat cum mari in quantum se extendit territorium terrae prope mare In a word to this purpose the Renowned Learned Mr. Selden who hath left no more to say but with Jo Baptist Larrea in one of his Decisions of Granada That Authorum sententias non ex numero sed ex ratione metiri oportet pensitari debent juris fundamenta non Authorum Elenchum velut calculatione computari The Lord High Admiral is by the Prince concredited with the management of all Marine Affairs as well in respect of Jurisdiction as Protection He is that high Officer or Magistrate to whom is committed the Government of the Kings Navy with power of Decision in all Causes Maritime as well Civil as Criminal So that befide the power of Jurisdiction in Criminals he may judge of Contracts between party and party touching things done upon or beyond the the Seas Wherein he may cause his Arrests Monitions and other Decrees of Court to be served upon the Land as also may take the parties body or goods in execution upon the Land The Lord Coke in honour of the Admiralty of England is pleased to publish to the world that the Lord Admirals Jurisdiction is very Ancient and long before the Reign of Ed. 3. and that there hath ever been an Admiral time out of mind as appears not only by the Laws of Oleron but also by many other Ancient Records in the Reigns of Hen. 3. Ed. 1. Ed. 2. Thus as the Laws and Constitutions of the Sea are nigh as Ancient as Navigation it self so the Jurisdiction thereof hath universally been owned and received by all Nations yea and this Kingdome is by way of Eminency Crowned by Antiquity for the promulgation of the one and establishment of the other For otherwise without such Maritime Laws and such an Admiral Jurisdiction how could the Ancient Brittains long before Julius Caesar invaded this Isle restraine all Strangers Merchants excepted from approaching their Confines or regulate such Navies as were the wonder of that Age Or how could King Edgar in the Titles of his Charters have effectually styled himself as well Imperator Dominusque rerum omnium Insularum Oceani qui Brittaniam circumjacent as Anglorum Basileus or maintain in Naval Discipline these four hundred Sail of ships appointed by him to guard and scour the Brittish Seas And did not Etheldred after Edgar for the self-same end and purpose set forth to Sea from Sandwitch one of the greatest Navies that ever this Kingdome prepared Doubtless this was no Lawless Navy without Maritime Constitutions for the due regulation thereof according to the Laws of the Sea Consonant to that of the Jurisdiction of the Admiralty then in use and received by all the Maritime Principalities of Europe Whereas it is universally acknowledged That the Admiralty of England is very Ancient and long before the Reign of Edward the third who ever consults Antiquity shall find it farre more Ancient and long before the Reign of Edward the first even time out of mind before the said Edward the first To this purpose very remarkable is that ancient Record in the Tower of London entituled De Superioritate Maris Angliae jure Officii Admirallatus in eodem and out of the old French rendred into English by Sir John Boroughs in his compendious Treatise of the Soveraignty of the Brittish Seas pag. 25 c. edit Anno 1633. in which it evidently appears that the Admiralty of England and the Jurisdiction thereof was farre more Ancient then Edward the first and that from age to age successively and time out of mind even before the days of the said Edward the first it was so owned and acknowledged by this and all other Neighbour-Nations as appears by the said Record which was occasioned by a National Agreement of certain differences arising between the Kings of England and France in the 26 year of the Reign of the said Edward the first by reason of certain usurpations attempted by Reyner Grimbald then Admiral of the French Navy in the Brittish Seas in which Agreement the Commissioners or Agents for the Maritime Coasts of the greatest part of the Christian world of Genoa Spain Germany Holland Zealand Freezland Denmark and Norway then present made this memorable Acknowledgment and Declaration which is extracted out of the said Record as to so much thereof as relates to the Jurisdiction of the Admiralty viz. That the Procurators of the Admiral of the Sea of England and of other places as of the Sea-Coasts as of Genoa Catalonia Spain Almayne Zealand Holland Freezland Denmark and Norway do shew that the Kings of England time out of mind have been in peaceable possession of the Seas of England in making and establishing Laws and Statutes and Restraints of Arms and of Ships c. and in taking Surety c. and in ordering of all other things necessary for the maintaining of Peace Right and Equity c. and in doing Justice Right and Law according to the said Laws Ordinances and Restraints and in all other things which may appertain to the Exercise of Soveraign Dominion in the places aforesaid And A. de B. Admiral of the Sea deputed by the King of England and all other Admirals ordained by the said King of England have been in peaceable possession of the Soveraign guard with the Cognizance of Justice c. And whereas the Masters of the Ships of the said Kingdome of England in the absence of the said Admiral have been
of 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
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
is said to be a Truth how fatal soever built upon this double foundation First because the Court of Admiralty proceeds by the Civil Law Secondly because if an erroneous sentence be given in that Court no Writ of Errour but an Appeal doth lye according to the Statute of 8 Eliz. cap. 5. Reason is or should be the source or fountain of all humane Laws no Waters rise higher then their Springs The first enquiry therefore will be what a Court of Record is or what Court may properly be said to be a Court of Record which being known and considered if you be not then satisfied you may if you please farther enquire whether the being of Record be such an essential qualification to a Court as without which it is incapable of taking such Stipulations I say such Stipulations as the Court of Admiralty hath ever used to take and de jure ought to take The Lord Coke makes this description of a Court of Record Every Court of Record is the Kings Court albeit another may have the profit wherein if the Judges do erre a Writ of Errour doth lye But the County-Court the Hundred-Court the Court-Baron and such like are no Courts of Record And therefore upon their Judgments a Writ of Errour lyeth not but a Writ of false Judgment for that they are no Courts of Record because they cannot hold plea of Debt or Trespass if the debt or damage do amount to forty shillings or of any Trespass Vi Armis It is observable that it is here said that every Court of Record is the Kings Court So is the high Court of Admiralty styled the Kings Court as appears not only by the Title or preliminary Description but also by the second Article or Proposition in the Resolutions upon the Cases of Admiral Jurisdiction subscribed in Anno 1632. by the Reverend Judges in Presence of His Late Majesty of ever Blessed Memory and the Lords of His Majesties most Honourable Privy Councel And whereas in the said description of a Court of Record it is said They are no Courts of Record because they cannot hold Plea of Debt or Trespass if the debt or damage do amount to forty shillings or of any Trespass Vi Armis it is well known that the Court of Admiralty can hold Plea of a Debt or Trespass Maritime if the debt or damage do amount to as many thousands of pounds as there are pence in forty shillings and not only of Trespass Vi Armis but also of Maihem yea of Death it self Wherefore as the former character of a Courts being of Record may be applyed to the high Court of Admiralty as the Kings Court So the other character of a Courts not being of Record is no way applicable to the said Court of Admiralty But in the said description of a Court of Record it is said that every Court of Record is the Kings Court wherein if the Judges do erre a Writ of Errour doth lye the question then is whether it be a question whether a Writ of Errour doth lye in the Consistory Court of the University of Cambridge which Queen Elizabeth by her Charter dated 26 April Anno 3 Reg. made a Court of Record And Writs of Errour did also properly lye in any Court where they have power to hold Plea by the Kings Charter or by Prescription in any summe either in Debt or Trespass above the summe of forty shillings In which sense the Court of Admiralty as aforesaid is sufficiently qualified as a Court of Record which though eminent enough for its practice and interest in the Realm and so not probable to have escaped a particularization among the other fore-mentioned Courts the County-Court Hundred-Court and Court-Baron as no Courts of Record by reason of any oblivion yet is not there instanced among those other Courts not of Record And the County is called a Court of Record Westm 2. cap. 3. Anno 13 Ed. 1. But it seems by Britton cap. 27. that it is only in these causes whereof the Sheriff holdeth Plea by special Writ and not those that are holden of course or custome And whereas Brook seemeth to say That no Court Ecclesiastical is of Record yet Bishops certifying Bastardy Bigamy Excommunication the vacancy or plenarty of a Church a Marriage a Divorce a Spiritual intrusion and the like are credited without farther enquiry or controlment This only by the way and in transitu If it be said the Court of Admiralty is no Court of Record because it proceeds by the Civil Law it may be demanded by what Law the Consistory-Court of Cambridge proceeds which Q. Elizabeth as aforesaid made by her Charter a Court of Record For the King may make a Court of Record by his Grant which seems to allay that Antipathy that is supposed between a Court of Record and a Court proceeding by the Civil Law a Law allowed received and owned as the Law of the Admiralty of England Yet Serjeant Harris in the Case of Record against Jobson argued That a Recognizance taken in the Court of Admiralty to stand to the Order of the Court is void and that it hath been so adjudged So it 's argued it is not said Resolved It is a happiness as well as a truth what was once said in Dr. James his Case That the King is the indifferent Arbitratour in all Jurisdictions and of all Controversies touching the same and that it is a Right of his Crown to distribute to them that is to declare their bounds It is no novel doctrine to assert that Stipulations taken in the high Court of Admiralty for appearance or performance of its own Acts Orders and Decrees are in modo procedendi quasi Accessorium quoad Principale And the Modern Reporter in a Case depending before the Commissioners of Ensurance between Oyles and Marshal says That it being moved in the Kings Bench for a Prohibition and a Rule there given to shew cause why a Prohibition should not be granted to the Court of Ensurance it was then declared That if they had Jurisdiction of the Principal matter they had Jurisdiction of matters also incident thereto And what are Recognizances taken in the Court of Admiralty for Appearance and performance of its own Acts and Decrees more then Stipulations Judicio sisti judicatum solvi Insomuch as to deny the right or power of taking such Stipulations seems in effect as to imply an inhibition of the whole Jurisdiction for without such Stipulations in praeparatorio Litis the subsequent Judgement be it for Plaintiff or Defendant would prove but vain and elusory And a Judgement without due and effectual execution is quasi sententia inanimata without such stipulations Justice may be perverted into Injustice for default of that which is the complement or ultimate design of all Justice viz. Facultas suum cuique tribuendi The Practice of taking such Stipulations for the Legality thereof according to
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
less according to the pleasure of the Admiral This hath Mr. Selden the Lawyer as well as Mr. Selden the Antiquary there is far less feasibility of contesting with him then of gaining honour by subscribing to his authority Wherefore upon an Interestless perpension of what hath been only touch'd not so largely handled as might have been in a set Treatise proportionable to this subject matmatter the Jurisdiction of the Admiralty may be found not only a Body of more Solidity then to dissolve only into Water and not only a Jurisdiction proceeding by such Laws as have from age to age successively been owned by the Supreme Authority of this Nation but also such a Jurisdiction as though it hath its due bounds yet possibly according to what hath been duly used in the time of King Edward Grand-father of King Rich. 2. not so exceedingly straight-laced as some in the late Licentious times imagined specially if in addition to the Premises they consider what hath been formerly said to have been urged by Haughton viz. That the intent of the Statute of 13 R. 2. cap. 5. was not to inhibit the Admiral Court to hold Plea of any thing made beyond Sea but only of things made within the Realm which pertains to the Common Law and is not in prejudice of the King or Common Law if he hold Plea over the Sea And that this was the intent of the Statute appears by the Preamble And in the same Report it is farther said That Walmesly and Warburton Justices agree That if a thing be done beyond Sea as if an Obligation bears date beyond Sea or be so Local that it cannot be tryed by the Common Law if the Admiral hold plea of that Prohibition shall not be awarded for it is not to the prejudice of the King or of the Common Law By the Statute of 15 R. 2. cap. 3. It is Enacted and Declared That the Court of Admiralty shall have no cognizance of Contracts Pleas and Quereles or other things done within the Bodies of the Counties as well by Land as by Water Nevertheless of the Death of a man and of Mayhem done in great Ships being and hovering in the main stream of great Rivers only beneath the Bridge of the same Rivers nigh to the Sea and in no other places of the same Rivers the Admiralty shall have cognizance From hence it hath been observed by way of Inference how Curious the Makers of this Statute were to exclude the Admiralty of all manner of Jurisdiction within any water which lyeth within any County of this Realm possibly it hath not been so exactly observed by way of Redress how unfortunate specially of late years the same hath been in having its Jurisdiction impeded and obstructed in Waters without any County of this Realm by the Prohibitory Consequences of a Surmize or Suggestion when in rei veritate the matter was otherwise then surmized or suggested This is that Statute whereof mention is made in the precedent Chapter touching the mistake of the word Bridge instead of Points It seems something more then strange in Nature to find a main stream or great Rivers whereof this Statute speaks beneath the Points which beak out into the main Sea as Navigators well know when they double the Point the main Sea or great Rivers being commonly emptyed into the main Ocean above not beneath such Points and usually cease to be streams or Rivers before the Waters thereof reach the said Points And it were no prejudice if it were ascertained what Havens and Harbours may be held as within the Bodies of some County because possibly Geographers know not with what Counties to incorporate Milford-Haven Mounts-Bay Tor-Bay Plymouth-Sound and the like The Law in express tearms hath put the difference Res facta in Portu non facta in Terra The Law knows no preternatural confusion of Elements Lex semper imitatur Naturam Time was olim meminisse dolebit in the late Licentious days when the Admiralty of England between Land-imagined and the Sea-County-corporated could scarce keep above water But now that Justice once more looks like it self and suum cuique tribuitur miraculously arrived instead of sic volo sic jubeo c. Insomuch that it might then be as truly as sadly said Terras Astraea reliquit yet now that Justice by an over-ruling hand of Divine Providence is again turned into its ancient and proper Channel and it being well known to the whole world of what lustre and value the Jewel of the Admiralty is when well set in the Diadem or Crown of Great Brittain it may not now be unseasonable to alledge what is asserted as is aforesaid to be of ancient Record viz. That not only in the days of 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 Consonant to what was resolved in Sir Hen. Constables Case That the soyl betwixt the high and low Water-Mark may be the Subjects but when covered with water the Admirals Jurisdiction reaches to it By the Statute of 2 H. 4. cap. 11. It is Enacted That the Statute of 1. 3 R. 2. cap. 5. shall be firmly holden and kept and put in execution This Statute therefore seems as a reviver or in confirmation of that which as aforesaid mentions according to that which hath been duly used in the time of King Edward Grand-father of King Richard the Second which being formerly insisted on a retrospect may here suffice By the Statute of 27 Eliz. cap. 11. It is Enacted That all and every such of the said offences before mentioned as hereafter shall be done upon the main Sea or Coasts of the Sea being no part of the Body of any County of this Realm and without the Precinct Jurisdiction and Liberty of the Cinque-Ports and out of any Haven or Pier shall be tryed and determined before the Lord Admial c. It hath been hence inferred That by the Judgement of the whole Parliament the Jurisdiction of the Admiralty is wholly confined to the main Sea or Coasts of the Sea being no parcel of the Body of any County of this Realm And that this Statute is a particular description of that Jurisdiction as to the limits thereof This Statute gives the Jurisdiction of the Admiralty a power of Cognizance in such Offences done upon the main Sea or Coasts thereof there 's the Ampliation Being no part of the Body of any County and without the precinct of the Cinque-Ports and out of any Haven or Pier there 's the Limitation Where either of these is part or parcel of the Body of any County within this Realm the Admiralty may not claim Jurisdiction therein Touching Contracts made beyond Sea the said Letter of this Statute is silent In the Resolutions upon the Cases of Admiral Jurisdiction the substance of the first Article or Proposition is That no